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T.C. Memo. 1997-192
UNITED STATES TAX COURT
RICHARD W. KOCHANSKY AND MONICA L. MILLER,
F.K.A. MONICA L. KOCHANSKY, Petitioners, v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 21791-93. Filed April 24, 1997.
Richard W. Kochansky, pro se.
Robert S. Scarbrough, for respondent.
MEMORANDUM OPINION
DAWSON, Judge: This case was assigned to Special Trial
Judge D. Irvin Couvillion pursuant to section 7443A(b)(4)and
- 2 -
Rules 180, 181, and 183.1 The Court agrees with and adopts the
opinion of the Special Trial Judge, which is set forth below.
OPINION OF THE SPECIAL TRIAL JUDGE
COUVILLION, Special Trial Judge: This matter is before the
Court on respondent's motion for entry of decision as to which
Richard W. Kochansky (petitioner) has filed an objection. In two
notices of deficiency, respondent determined the following
deficiencies, additions to tax, and penalties for the years
indicated:2
Additions to Tax
Sec. Sec. Sec. Sec.
Year Deficiency 6651(a)(1) 6653(a) 6654 6662(b)(1)
1988 $8,115 $2,029 $406 $36 --
1989 4,035 967 -- -- $807
1990 2,022 -- -- -- 404
At the time the petition was filed, petitioners were legal
residents of Idaho.
On the date this case was calendared for trial, the parties
filed with the Court a written stipulation to be bound (the
stipulation). There was no evidence adduced on that date other
than the stipulation and the exhibits attached thereto.
1
Unless otherwise indicated, section references are to the
Internal Revenue Code in effect for the years in issue. All Rule
references are to the Tax Court Rules of Practice and Procedure.
2
The deficiencies, additions to tax, and penalty for the years
1988 and 1990 are against Richard W. Kochansky alone. For 1989,
the deficiency, addition to tax, and penalty are against Richard
W. Kochansky and Monica L. Miller.
- 3 -
Essentially, the stipulation is an agreement by the parties
to be bound by the outcome of an appellate case involving
petitioner's 1987 tax year, which, at the time this case was
calendared for trial, was pending before the United States Court
of Appeals for the Ninth Circuit. The litigation in the
appellate case also originated with this Court, the results of
which are set out in Kochansky v. Commissioner, T.C. Memo. 1994-
160. The appeal in that case was not resolved until sometime
after the stipulation in the instant case was filed. In
Kochansky v. Commissioner, 92 F.3d 957 (9th Cir. 1996), the Court
of Appeals affirmed in part and reversed in part T.C. Memo. 1994-
160 regarding petitioner's 1987 tax year. The deficiency in tax
and the imposition of additions to tax under sections 6651(a)(1)
and 6661 were affirmed, and the imposition of the addition to tax
under section 6653(a) was reversed. The decision, as thus
modified, thereafter became final.
Following petitioner's failure to execute decision documents
in the instant case in accordance with the stipulation,
respondent filed the motion for entry of decision.
The decision documents prepared by respondent are in
accordance with the holding of the Court of Appeals for
- 4 -
petitioner's 1987 tax year. Kochansky v. Commissioner, supra.
Petitioner does not argue to the contrary.3
Petitioner objects to respondent's motion for entry of
decision on the ground that the Court of Appeals based its
holding on the theory that petitioner had made an anticipatory
assignment of income to his former spouse and that under the
rationale of Lucas v. Earl, 281 U.S. 111 (1930), such income was
taxable to petitioner when the income was subsequently realized,
even though a portion of this income (one-half) had been paid to
petitioner's former spouse. The Court of Appeals affirmed this
Court's holding that rejected petitioner's contention that the
portion of the subject income, when realized, was taxable income
to his former spouse and was not taxable to petitioner. The
instant case involves identical payments of income that were
3
The proposed decision, which is part of the motion, includes
concessions by respondent of the sec. 6653(a) addition to tax for
the 1988 tax year and the penalty under sec. 6662(b)(1) for the
1989 and 1990 tax years in accord with the Court of Appeals'
opinion. Respondent further concedes the addition to tax under
sec. 6654(a) for the 1988 tax year and that petitioner Monica L.
Miller is exonerated from liability as an innocent spouse under
sec. 6013(e) for the 1989 tax year. As a result of this
concession as to petitioner Monica L. Miller, she executed the
decision documents prepared by respondent and is not a party with
respect to respondent's motion for entry of decision. The
stipulation also includes a reduction of the income adjustment
against petitioner for the year 1988 from $28,800 determined in
the notice of deficiency to $7,200.
- 5 -
realized during the years 1988, 1989, and 1990.4 Petitioner, in
his objection to respondent's motion, alleges:
1. The case of Kochansky v. Commissioner, T.C. Memo.
94-160 at 92 F.3d 957 (1996) was decided by the Court of
Appeals on the sole issue raised of "assignment of
anticipatory income".
2. In those cases pending before this Tax Court,
Petitioner has other issues to be raised dealing with tax
liability which were not raised in the Court of Appeals case
cited above, to wit:
A. Community Property issue;
B. IRC §1041
3. Petitioner agreed to be bound on the issue of
"assignment of anticipatory income" as presented in the
Court of Appeals, but never intended to waive other issues
in other cases.
4
Briefly stated, petitioner is an attorney who had filed a
medical malpractice action in 1984 on a contingent fee basis. At
the time, petitioner was married to Carol A. Kochansky (Carol).
Petitioner and Carol were divorced in 1985. In the property
settlement between them, it was agreed that any fees earned from
this litigation (net of petitioner's out-of-pocket costs) would
be paid one-half to petitioner and one-half to Carol. The
medical malpractice case was settled in 1987, and a portion of
the contingent fee was paid in 1987, of which a portion was paid
to petitioner and the remainder was paid to Carol pursuant to the
property settlement agreement. On his 1987 income tax return,
petitioner reported only the portion of the fee he had received.
This Court and the Court of Appeals for the Ninth Circuit both
held that the property settlement agreement between petitioner
and Carol constituted an anticipatory assignment of income, and,
under Lucas v. Earl, 281 U.S. 111 (1930), the total amount of the
fee paid during 1987 constituted gross income to petitioner. The
instant case involves additional amounts of the contingent fee
from the same medical malpractice case that were paid to
petitioner during 1988, 1989, and 1990, half of which were
remitted to petitioner's former spouse Carol pursuant to the
property settlement.
- 6 -
Petitioner, in essence, is urging a different theory upon which
his liability as to the income in question for 1988, 1989, and
1990 should be determined. Petitioner made the same argument in
the Court of Appeals as to his 1987 tax year, and that argument
was addressed as follows:
Kochansky further argues that under Idaho's community
property law, Idaho Code 32-906, Carol had a community
property interest in the contingent fee at the time of the
divorce. Upon divorce, that interest became her sole and
separate property, he argues, and therefore she is solely
responsible for paying tax on her portion of the malpractice
contingency fee. We decline to consider this argument
because Kochansky did not raise it in the Tax Court and
because the necessary facts to support the existence of a
community property interest have not been developed. See
United States v. Kimball, 896 F.2d 1218, 1219 ( | {
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59 S.E.2d 223 (1950)
232 N.C. 59
In re JOHNSON'S ESTATE.
No. 451.
Supreme Court of North Carolina.
May 3, 1950.
*224 S. J. Bennett, Durham, for appellant.
F. T. Dupree, Jr., Raleigh, R. A. Cotten, Fuquay Springs, for appellee.
SEA WELL, Justice.
The controversy with which this review is concerned is over the administration of the estate of K. B. Johnson, now pending before the Clerk of the Superior Court of Wake County, and the matter directly in controversy is the alleged interest of the said K. B. Johnson in the partnership property and assets of K. B. Johnson & Sons, an alleged partnership which the petition hereinafter referred to alleges to remain unadministered by the surviving partners of the said firm and to constitute assets unadministered by the preceding executor and administrator of the estate of the said K. B. Johnson, and still subsisting.
Since the crux of the controversy is directly over the powers and duties of the surviving partners as affecting the present obligation, and liabilities to the estate, the following observations are pertinent by way of clarification.
The death of a partner ordinarily dissolves the partnership as of that date. Article 2, Uniform Partnership Law, Sec. 59-61(4) of the General Statutes. Expressed in the singular, to avoid awkward grammatical expression, the legal estate of the deceased partner in the partnership property vests in the surviving partner for administration in winding up the partnership and paying the partnership debts. Sugarman on Partnership, Sec. 236; Sherrod v. Mayo, 156 N.C. 144, 72 S.E. 216, Ann. Cas.1912D, 1205.
The surplus of the deceased partner's property interest in the partnership, *225 after the debts are paid and the partnership is wound up, belongs to his individual estate and goes to his personal representative or distributees, as the case may be; and it is sometimes said that their interest therein is equitable; In re Lichtblau's Estate, 1933, 146 Misc. 278, 261 N.Y.S. 863.
The surviving partner stands to them in the relation of trustee charged with the duty of faithful management and accounting to those entitled to the surplus of the deceased partner's interest after settling the debts of the partnership and winding up its affairs. Coppersmith v. Upton, 228 N.C. 545, 46 S.E.2d 565; Walker v. Miller, 139 N.C. 448, 52 S.E. 125, 1 L.R.A.,N.S, 157, 111 Am.St.Rep. 805, 4 Ann.Cas. 601.
At any rate the right of the surviving partner to administer the deceased partner's interest in the partnership is his by virtue of the survivorship and is separate and distinct from the ordinary administration of decedents' estates in the charge and jurisdiction of the Clerk of the Superior Court. Story on Partnership, sec. 344; Weisel v. Cobb, 114 N.C. 22, 18 S.E. 943; Hodgin v. Peoples' National Bank, 124 N.C. 540, 32 S.E. 887. The latter administration has nothing to do with the former except as some statute may empower the Clerk to take action, and then only to the extent, and upon the conditions manifest in such statute. The legal consequences of these principles as they apply to the case at bar will be dealt with in the conclusion. But first let us get clearly before us the factual history of the proceeding under review in brief summary so that it may be followed step by step.
C. P. Dickson, a judgment creditor of the estate of K. B. Johnson, filed on August 31, 1949, a verified petition for the removal of T. Lacy Williams as administrator c. t. a., d. b. n., of the estate of K. B. Johnson, deceased, and for the appointment of a successor, such petition alleging the existence of unadministered assets of the estate, consisting of the unadministered interest of K. B. Johnson & Sons. The Clerk on the same day issued an order to T. Lacy Williams to show cause why he should not be removed as administrator c. t. a., d. b. n., for alleged "default in the due administration of the said estate." The order to show cause was duly served and returned on August 31, 1949. On September 13, 1949, C. P. Dickson filed an amended petition which contains no complaint of default in the administration by T. Lacy Williams.
On September 19, 1949, the Clerk issued an order "that the said T. Lacy Williams be, and he hereby is discharged by this court as administrator c. t. a., d. b. n., on the estate of K. B. Johnson, deceased," and recited as the reason therefor "that the said T. Lacy Williams waived his right to further administer upon the estate of K. B. Johnson, deceased, and agreed that upon his final account heretofore filed he be discharged as administrator c. t. a., d. b. n., on the estate of K. B. Johnson, deceased." On the same day the Clerk issued an order reopening the estate and appointing W. L. Totten, Sr., as administrator, c. t. a., d. b. n. And also on the same day, without Totten having been made a party and without his participation, the Clerk issued an order to the purported surviving partners of K. B. Johnson & Sons requiring them to file a bond conditioned on the faithful performance of their duties in the settlement of the partnerhsip affairs pursuant to G.S. 59-74, and also to file with the Clerk a "full and complete inventory to date of all the assets of the partnership, including all real estate owned by said partnership, together with a schedule of the debts and liabilities existing at the time of the death of K. B. Johnson, the deceased partner; and to furnish the personal representative a copy of said inventory and schedule of debts as required under the statute, G.S. § 59-76."
Thereafter, on October 25 1949, upon motion of H. W. Johnson for himself and the surviving partners, the time for filing the bond and inventory was extended by the Clerk to November 25, 1949. On December 1, 1949, no bond or inventory having been filed, the Clerk issued an order requiring the filing of the bond and inventory on or before December 7, 1949, "under penalty as prescribed by law."
The proceeding reached the court below on appeal by the administrator from the denial by the Clerk of a motion to dismiss *226 the amended petition filed by C. P. Dickson, and to vacate the orders of September 19, 1949, and the supplemental order of December 1, 1949. The court below vacated and set aside the orders of September 19, 1949, and the supplemental order of December 1, 1949, and dismissed the proceeding on the ground that the Clerk of the Court was without jurisdiction.
That the Clerk of the Court had jurisdiction to entertain a complaint on affidavit, in this case the verified petition of Dickson, and to issue an order to the administrator c. t. a., d. b. n., to show cause why he should not be removed, is clear. G.S. § 28-32. That the proceeding was obviated by the resignation and discharge of the administrator Williams and that upon such resignation and discharge a vacancy occurred is also clear, and the Clerk very properly appointed a successor.
The order of September 19, 1949, requiring the surviving partners to give bond and file inventory and accounts, and the supplemental order of December 1, 1949, to the same effect commanding that the order theretofore made should be obeyed "under penalty as prescribed by law" were made without regard to the want of any sanction for their enforcement and in disregard of the remedial procedures provided in the statutes upon which the purported authority is based, G.S. §§ 59-74, 59-75, 59-76, 59-77. Such orders also appear to have been executed by the Clerk ex mero motu.
G.S. § 59-74 provides: "Upon the death of any member of a partnership, the surviving partner shall, within thirty days, execute before the clerk of the superior court of the county where the partnership business was conducted, a bond payable to the state of North Carolina, with sufficient surety conditioned upon the faithful performance of his duties in the settlement of the partnership affairs. The amount of such bond shall be fixed by the clerk of the court; and the settlement of the estate and the liability of the bond shall be the same as under the law governing administrators and their bonds."
The bond required by G.S. § 59-74 is primarily for the protection of those interested in the surplus of the deceased partner's estate remaining after the affairs of the partnership have been wound up. Coppersmith v. Upton, 228 N.C. 545, 46 S.E. 2d 565. Such a bond filed now would have no retroactive effect or become liable for any maladministration theretofore occurring.
G.S. § 59-75 provides: "Upon the failure of the surviving partner to execute the bond provided for in § 59-74, the clerk of the superior court shall, upon application of any person interested in the estate of the deceased partner, appoint a collector of the partnership, who shall be governed by the same law governing an administrator of a deceased person."
But the remedial procedure provided herein has not been invoked.
G.S. § 59-76 provides | {
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837 So.2d 1147 (2003)
David HUFFMAN, Appellant,
v.
STATE of Florida, Appellee.
No. 2D02-5089.
District Court of Appeal of Florida, Second District.
February 21, 2003.
*1148 COVINGTON, Judge.
In 1986, David Huffman was convicted of sexual battery with a deadly weapon and armed burglary.[1] He was sentenced to life in prison. Pursuant to Florida Rule of Criminal Procedure 3.853, Huffman filed a motion for postconviction relief requesting DNA testing. He is appealing the trial court's denial of that motion. Because there is a "reasonable probability" that Huffman would have been acquitted had the DNA evidence demonstrated that the contents of the victim's rape kit did not match his DNA, we reverse and remand for further proceedings. See Knighten v. State, 829 So.2d 249, 252 (Fla. 2d DCA 2002).
The victim was attacked during the early morning hours of July 21, 1985, while sleeping in her bedroom. When the victim awoke, the assailant was sitting on top of her. The victim testified that she was unable to see the assailant's face because he covered her eyes. The victim was then threatened with a knife and raped. Throughout the assault, the victim's face was covered with a pillowcase. After the assailant left, the victim contacted the police. Rape kit evidence was collected at the hospital.
In his motion, Huffman alleged that DNA testing on the contents of the rape kit would exonerate him. He stated that the last known location of the evidence was the Florida Department of Law Enforcement in Tampa or the Sarasota County Police Department.
In its response to Huffman's motion, the State failed to indicate whether the rape kit evidence was still available for testing. The trial court never made any findings with regard to this issue. Rule 3.853(c)(5) provides:
*1149 (5) The court shall make the following findings when ruling on the motion:
(A) Whether it has been shown that physical evidence that may contain DNA still exists.
(B) Whether the results of DNA testing of that physical evidence likely would be admissible at trial and whether there exists reliable proof to establish that the evidence containing the tested DNA is authentic and would be admissible at a future hearing.
(C) Whether there is reasonable probability that the movant would have been acquitted or would have received a lesser sentence if the DNA evidence had been admitted at trial.
The trial court acknowledged that the State failed to allege whether the evidence sought to be tested was still available for testing. However, the trial court did not address this issue because it concluded that "based upon the other evidence that was introduced at the Defendant's trial, the Defendant cannot show that there is a reasonable probability that he would be acquitted if the DNA evidence had been admitted at trial."
There was significant circumstantial evidence of Huffman's guilt presented at trial, including: (1) a fingerprint that matched Huffman's fingerprints; (2) phone calls traced to Huffman's house that were made to the victim's house after the attack; and (3) the victim's in-court identification of Huffman's voice as the voice of her assailant. However, identity remained an issue at trial. This court has noted that "the fact that the victim identified [the defendant] as her assailant at trial does not mean that identity was not genuinely disputed at trial for purposes of postconviction DNA testing." Zollman v. State, 820 So.2d 1059, 1062 (Fla. 2d DCA 2002).
"Cases addressing this issue have uniformly held that DNA testing will not be permitted if the requested DNA testing would shed no light on the defendant's guilt or innocence." Id. at 1063. Here, as in Zollman, DNA testing of the evidence in this case would show whether Huffman was the perpetrator of the sexual battery. Id. There is a "reasonable probability" that Huffman would have been acquitted had the DNA evidence demonstrated that the contents of the rape kit were inconsistent with his DNA. See Knighten, 829 So.2d at 252. Therefore, we reverse and remand for further proceedings consistent with this opinion and the requirements of rule 3.853.
Reversed and remanded.
FULMER and DAVIS, JJ., Concur.
NOTES
[1] In Huffman v. Singletary, 696 So.2d 788 (Fla. 2d DCA 1997), this court prohibited Huffman from challenging his 1986 convictions in this court either by appeal or original proceeding. The motion under review in this proceeding was filed pursuant to Florida Rule of Criminal Procedure 3.853, which creates an avenue to pursue postconviction relief based upon allegations that DNA evidence will exonerate the claimant. This rule was adopted October 18, 2001, after the date that this court restricted Huffman's access to this court to challenge his 1986 convictions. We believe that strict adherence to Huffman under these circumstances is unwarranted, and we except from the holding in Huffman those challenges to Huffman's convictions premised upon rule 3.853. We will continue to abide by Huffman insofar as Huffman may attempt to invoke this court's jurisdiction to attack his 1986 convictions by appeal or original proceeding raised pursuant to other postconviction remedies.
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473 Pa. 181 (1977)
373 A.2d 1107
COMMONWEALTH of Pennsylvania
v.
Richard P. CHENET, Appellant.
Supreme Court of Pennsylvania.
Argued March 10, 1977.
Decided June 3, 1977.
*182 John Alan Havey, Aliquippa, for appellant.
Anthony J. Berosh, Keith R. McMillen, Asst. Dist. Atty., Beaver, for appellee.
Before EAGEN, C.J., and O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
*183 OPINION OF THE COURT
O'BRIEN, Justice.
Appellant, Richard P. Chenet, was tried by a judge and jury in Beaver County and convicted of possession of a controlled substance. Appellant filed post-verdict motions for a new trial and in arrest of judgment. The court en banc granted appellant a new trial, but refused to arrest judgment. The Superior Court, by a four-three vote, affirmed the order of the court en banc denying the motion in arrest of judgment.[1]Commonwealth v. Chenet, 237 Pa.Super. 226, 352 A.2d 502 (1975). Appellant filed a petition for allowance of appeal, which this court granted on March 26, 1976.
Appellant claims the evidence is insufficient to sustain his conviction and that both the Superior Court and the court en banc erred in refusing his motion in arrest of judgment. We agree and, therefore, reverse and discharge appellant.
When reviewing a denial of a motion in arrest of judgment, we must view all of the Commonwealth's evidence introduced at trial in the light most favorable to the Commonwealth with all reasonable inferences therefrom. Commonwealth v. Terenda, 433 Pa. 519, 252 A.2d 635 (1969). The evidence introduced by the Commonwealth is as follows.
On May 19, 1973, three Beaver County deputy sheriffs obtained a search warrant for appellant's trailer. Upon arrival at the trailer park, the sheriffs found the trailer locked and had to wait until 10:20 p.m., when appellant's roommate arrived with his girlfriend. A search turned up a few marijuana seeds on the kitchen floor, *184 marijuana cigarette butts in an ashtray in the livingroom and a "baggie" containing marijuana residue in the livingroom. The officers then found approximately 80 grams of marijuana in a milk delivery box attached to the trailer hitch. The search was completed at 11:30 p. m.
The deputies remained at the trailer until 1:15 a.m., when appellant arrived. After arresting appellant, the officers sought and were refused permission to search the automobile appellant had been driving. A second warrant was obtained and after two thorough searches of the car, the officers found two marijuana cigarettes in the console between the front seats. The car, however, belonged to appellant's attorney. Appellant had picked up the car to repair it. Appellant was the only individual charged with possession of the contraband. At trial, all of the seized contraband was introduced over appellant's objection.
Appellant was convicted of violating 35 P.S. § 780-113, which states, inter alia:
"(a) The following acts and the causing thereof within the Commonwealth are hereby prohibited:
* * * * * * * *
"(16) Knowingly or intentionally possessing a controlled. . . substance . . . ."[2]
In Commonwealth v. Fortune, 456 Pa. 365, 368-369, 318 A.2d 327, 328 (1974), we stated:
"When the illegal possession of contraband is charged, the evidence must establish that the appellant had a conscious dominion over the contraband. Commonwealth v. Davis, 444 Pa. 11, 280 A.2d 119 (1971). The illegal possession of narcotic drugs is a crime which `by its very nature is unique to the individual. By definition, the possessor is the only person who *185 could commit this crime. Guilt by association. . . is unacceptable.' Commonwealth v. Reece, 437 Pa. 422, 427, 263 A.2d 463, 466 (1970). See also Commonwealth v. Tirpak, 441 Pa. 534, 272 A.2d 476 (1971). The presence of one person in a group of people at the scene `is not of critical import in drug possession cases.' Commonwealth v. Reece [supra, 437 Pa. at 427, 263 A.2d [463] at 466]. See also Commonwealth v. Tirpak [supra]. `[T]he fact of possession loses all persuasiveness if persons other than the accused had equal access . . . to the place in which the property was discovered. . . .' Commonwealth v. Davis, 444 Pa. 11, 16, 280 A.2d 119, 121 (1971), quoting 9 J. Wigmore, Evidence § 2513 (3d ed. 1940). When the crime charged is the illegal possession of narcotic drugs, the presence of a person at the scene, without a consideration of the totality of the circumstances, does not prove the crime." (Emphasis added.)
The marijuana found in and around the trailer was in the livingroom, kitchen and outside area immediately adjacent to the trailer. All of these areas were equally accessible to appellant's roommate and his girlfriend. No marijuana was found in appellant's room nor on appellant's person. The marijuana found in the car which belonged to appellant's attorney was the only evidence which could implicate appellant. We believe, however, the Commonwealth has failed to prove beyond a reasonable doubt that appellant knew about and was in possession of two marijuana cigarettes found in a third party's car.
We believe that all of the Commonwealth's evidence, reviewed in the light most favorable to the Commonwealth, fails to prove appellant's guilt beyond a reasonable doubt.
*186 Order of the Superior Court affirming order of the Court of Common Pleas of Beaver County is reversed and appellant is discharged.
POMEROY, J., files a dissenting opinion.
POMEROY, Justice, dissenting.
Recognizing that this, like other drug possession cases, turns on its own facts and presents a very close question, I nevertheless agree with the Superior Court majority that the evidence here was sufficient to warrant a finding of constructive possession in the defendant Chenet. I therefore respectfully dissent.
NOTES
[1] We have recently made clear that an interlocutory order denying a motion in arrest of judgment, based on a claim of insufficient evidence, when a new trial has been granted, is appealable. Commonwealth v. Liddick, 471 Pa. 523, 370 A.2d 729, n. 2 (1977).
[2] Marijuana is defined as a controlled substance in 35 P.S. § 780-104(1)(iv).
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228 Cal.App.3d 1203 (1991)
279 Cal. Rptr. 643
THE PEOPLE, Plaintiff and Respondent,
v.
ROBERT JAMES KEE, Defendant and Appellant.
Docket No. C006064.
Court of Appeals of California, Third District.
March 26, 1991.
*1205 COUNSEL
Fern M. Laethem, State Public Defender, under appointment by the Court of Appeal, Bertram C. White, Ellen J. Eggers, Jolie S. Lipsig, and Ronald F. Turner, Deputy State Public Defenders, for Defendant and Appellant.
John K. Van de Kamp, Attorney General, Richard B. Iglehart, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney General, Michael Weinberger and Carlos A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
[Opinion certified for partial publication.[*]]
OPINION
SIMS, Acting P.J.
Defendant was convicted in different cases as follows:
In case number 79827, defendant pled guilty to one count of possession of heroin (Health & Saf. Code, § 11350) committed on March 30, 1987.
In case numbers 83725 and 85378, consolidated for trial, defendant was found guilty of two counts of possession of a concealable firearm by an ex-felon (Pen. Code,[1] § 12021) committed in September 1987 and February 1988.
In case number 86019, defendant was convicted of one count of burglary (§ 459) committed on August 12, 1988.
In the case arising out of his convictions for possession of a firearm, defendant contends the trial court abused its discretion in denying his request for a two-day continuance during trial. In an unpublished portion of *1206 the opinion, we reject this contention. Defendant also argues that when the trial court ultimately sentenced him, the court erroneously applied on-bail enhancements (§ 12022.1). For reasons that follow, we will affirm the judgment.
I. DENIAL OF CONTINUANCE[*]
.... .... .... .... .... .
II. SENTENCING
Facts and Procedure
On March 30, 1987, defendant committed the offense of felony possession of heroin. (Health & Saf. Code, § 11350.)
On September 7, 1987, while released from custody for the heroin offense, he committed the offense of possession of a firearm by a ex-felon. (§ 12021.)
On February 16, 1988, while released from custody for the heroin offense and the firearm offense, defendant committed another offense of possession of a firearm by an ex-felon. (§ 12021.)
On February 24, 1988, pursuant to a guilty plea to the heroin offense, defendant was sentenced to five months in county jail and placed on probation for five years.
On August 12, 1988, while released from custody for the two firearm offenses, defendant committed burglary. (§ 459.)
The two firearm offenses were consolidated for trial; the jury returned guilty verdicts in November 1988.
Defendant was found guilty by jury of first degree burglary in December 1988.
Defendant was ultimately sentenced as follows:
The trial court selected the upper term of six years on the burglary as the base term. The court then recomputed the sentences on the two firearm offenses as subordinate consecutive terms of eight months each. The court *1207 added three 2-year on-bail enhancements under section 12022.1.[3] The court added four 5-year enhancements for prior serious felony convictions. (§ 667, subd. (a).) Defendant also received a concurrent eight-month sentence for violation of probation stemming from the heroin conviction. Thus, defendant was sentenced to a total of 33 years and 4 months in state prison.
Discussion
A. Imposition of Both Consecutive Sentence and Two-year Enhancement Does Not Violate Section 12022.1
(1) Defendant contends the trial court erred in imposing the two-year enhancements (§ 12022.1, subd. (b); fn. 3, ante), because the two-year enhancement cannot be imposed where the defendant is convicted of both the primary and secondary offense and is sentenced to state prison for each offense. He argues section 12022.1 itself compels this result, because subdivision (e) the two-prison-sentence situation contains no language imposing the two-year enhancement, whereas subdivision (f) where a defendant receives probation for the primary offense does contain language specifically imposing the two-year enhancement. (See fn. 3, ante.) Defendant *1208 also points out that, prior to a 1985 amendment, the statute specifically imposed the two-year enhancement in the two-sentence situation. (Stats. 1982, ch. 1551, § 2, p. 6050.) He thus concludes the amendment deleting specific reference to the two-year enhancement in the two-sentence situation (Stats. 1985, ch. 533, § 1, p. 1906) reflects a legislative intent not to impose the enhancement in that situation.
These arguments were rejected in People v. Baries (1989) 209 Cal. App.3d 313 [256 Cal. Rptr. 920]. We agree with Baries's analysis and therefore reject defendant's contentions.
B. Imposition of Both Consecutive Sentence and Two-year Enhancement Does Not Violate Section 654
(2) Defendant contends imposition of a consecutive sentence (§ 12022.1, subd. (e)) and a two-year enhancement (§ 12022.1, subd. (b)) constitutes impermissible double punishment for the same act "made punishable in different ways by different provisions" of the Penal Code within the meaning of section 654.[4]
People v. Warinner (1988) 200 Cal. App.3d 1352 [247 Cal. Rptr. 197] held section 654 did not apply to section 12022.1 enhancements, on the ground that section 654 is "inapplicable to enhancements because enhancements do not define an offense." (P. 1355.) The courts of appeal are divided on the question whether section 654 applies to enhancements. (See People v. Rodriguez (1988) 206 Cal. App.3d 517, 519 [253 Cal. Rptr. 633], and authorities there cited [holding § 654 inapplicable to enhancements]; compare People v. Dobson (1988) 205 Cal. App.3d 496, 501 [252 Cal. Rptr. 423] and authorities there cited [holding § 654 applicable to enhancements].)
We do not have to take sides in this dispute because, even assuming for the sake of argument section 654 may be properly applied to enhancements in some circumstances, it does not apply in the circumstances advanced by defendant. In essence, defendant says section 654 is violated because the Legislature has seen fit to punish a single statutory violation (commission of a felony while on bail) with two different punishments (a two-year prison term and a mandatory consecutive sentence) described in two different subdivisions of the same statute. (Fn. 3, ante.) However, section 654 does not apply where the Legislature has adopted multiple statutory provisions punishing a single statutory violation in different ways. Rather, section 654 applies where the defendant's act violates more than one statutory provision *1209 (and therefore usually constitutes the commission of more than one crime), and defendant would be punished for each violation in the absence of section 654.
This view of section 654 emerges from the way our Supreme Court has characterized and applied section 654. Thus, in People v. Clapp (1944) 24 Cal.2d 835 [151 P.2d 237], the court concluded section 654 was enacted to apply where "the same act may violate more than one statute, ..." (P. 842.) In People v. Knowles (1950) 35 Cal.2d 175 [217 P.2d 1], the court remarked that section 654 applies where "two offenses [are] committed by the same act...." (P. 186.) Knowles continued, "If a course of criminal conduct causes the commission of more than one offense, each of which can be committed without committing any other, the applicability of section 654 will depend upon whether a separate and distinct act can be established as the basis of each conviction, or whether a single act has been so committed that more than one statute has been violated." (Id. at p. 187, italics added; accord Neal v. State of California (1960) 55 Cal.2d 11, 19 [9 Cal. Rptr. 607, 357 P.2d 839].) Similarly, in People v. Beamon (1973) 8 Cal.3d 625, 636 [105 Cal. Rptr. 681, 504 P.2d 905], the court said section 654 "prohibits the imposition of punishment for more than one violation arising out of an `act or omission' which is made punishable in different ways by different statutory provisions." (Italics added, fn. omitted.) Again, in People v. Perez (1979) 23 Cal.3d 545, 550-551 [153 Cal. Rptr. 40, 591 P.2d 63], the court said, "The purpose of this legislative protection against punishment for more than one violation arising out of an `act or omission' is to insure that a defendant's punishment will be commensurate with his culpability." (People v. Perez, supra, 23 Cal.3d at pp. 550-551, italics added.) In line with these views, Witkin and Epstein have written that the purpose of section 654 "is to prevent multiple punishment for a single act or omission, even though the act or omission violates more than one statute, and thus constitutes more than one crime." (3 Witkin & Epstein, Cal | {
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83 F.2d 406 (1936)
In re PARAMOUNT PUBLIX CORPORATION.
KUHN, LOEB & CO.
v.
PARAMOUNT PUBLIX CORPORATION et al.
No. 334.
Circuit Court of Appeals, Second Circuit.
May 4, 1936.
Cravath, De Gersdorff, Swaine & Wood, of New York City (Robert T. Swaine and Wm. D. Whitney, both of New York City, of counsel), for appellants.
Simpson, Thacher & Bartlett, of New York City (Thomas D. Thacher, Edwin L. Weisl, and Richard Jones, III, all of New York City, of counsel), for appellee Paramount Pictures, Inc.
Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
MANTON, Circuit Judge.
The order appealed from denied appellant's petition for compensation and expenses incurred in assisting in the reorganization of the debtor under section 77B of the Bankruptcy Act (11 U.S.C.A. § 207). Paramount Publix Corporation was a large holding company with interests in over five hundred other corporations engaged in some phase of the motion picture industry. Its consolidated balance sheet a year before its difficulties showed assets of about $300,000,000. In January of 1933 it was forced into equity receivership. On April 14, 1933, trustees in bankruptcy replaced the equity receivers. On June 7, 1934, section 77B of the Bankruptcy Act became effective, and on the next day a petition was filed by creditors for a reorganization of the debtor under that section. *407 A plan was submitted by the debtor December 3, 1934, and later approved, and as of July 1, 1935, the property was turned over to the debtor, then known as Paramount Pictures, Inc.
Kuhn, Loeb & Co. has marketed almost a hundred millions in Paramount's securities, and, as the house of issue, it was instrumental in the formation of protective committees for these issues. In 1933 it began the preparation of a comprehensive detailed report of the company's finances to supply the basic data necessary for any reorganization. Some of the debtor's securities had been bought by Kuhn, Loeb & Co. but these were sold out when it was requested to prepare a plan of reorganization by the committees representing the debenture holders and the bank creditors in March and April of 1934. Letters setting forth the arrangements between these parties were exchanged at this time, and it was agreed that, if the plan prepared by appellants was not acceptable, the committees would reimburse them for their expenses and disbursements up to $75,000. It was the understanding of all the parties that, if the plan were adopted, the estate would bear its cost. No formal designation of appellants as agents was made at this time, which, it is to be noted, was before the enactment of section 77B.
Preliminary drafts of the financial report Kuhn, Loeb & Co. was preparing were transmitted to the committees for the debenture holders, the bank creditors, and the stockholders in June and July of 1934. With this as a basis, they commenced and continued the preparation of a plan. Numerous conferences were held with the different representative groups, but the principal responsibility for the construction and drafting of the plan fell upon appellants and their counsel, who drew 30 separate progressive printed proofs.
In November of 1934, Kuhn, Loeb & Co. withdrew from the reorganization as suits against its members were contemplated. The plan was substantially complete at that time. The points of difference remaining were noted and posed for settlement. On December 3, 1934, the stockholders of the debtor adopted this Kuhn Loeb plan, and it was submitted for the court's approval. Although it was somewhat modified, it is this plan which the court finally approved. Appellants have paid bills of $14,287.29 for the successive printings of the plan and the financial report they prepared. They have been denied reimbursement for this.
We think that in the performance of this service the appellants were agents for the principal creditor committees and are entitled to reasonable compensation for the work and for their disbursements by virtue of section 77B (c) (9), 11 U.S.C.A. § 207 (c) (9). This section provides that the judge may allow "reasonable compensation for the services rendered and reimbursement for the actual and necessary expenses incurred in connection with the proceeding and the plan by officers, parties in interest, depositaries, reorganization managers and committees or other representatives of creditors or stockholders, and the attorneys or agents of any of the foregoing and of the debtor."
After the passage of this act, the debenture bond committee and the bank committee had continued the delegation to appellant of the task of preparing, as expeditiously as possible, a plan of reorganization of the Paramount Publix Corporation to be submitted to them for consideration. Both committees further undertook in writing to request the trustees of the debtor to make available to appellant as representatives of the creditor groups, all information helpful to the preparation of the plan.
The statute expressly provides that the court may compensate agents or attorneys of committees. While the statute broadly empowers the court to grant compensation, it must appear that the work of the agents or attorneys was beneficial to the estate in reorganization. The appellant's work was accepted at their retirement in November, 1934, and it was the plan which the debtor adopted and submitted for approval by the court. The court accepted this plan with some slight modifications, and the estate has had the benefit flowing from it. That the appellants expected compensation, and rightly so, is supported by an application made by the bankers' group and other creditor committees, for an allowance to them. The affidavits in support of their application show the respective committees delegated this important function to the appellant as agent, within section 77B (c) (9), and no affidavit contradicts.
The court below found that appellants made factual studies and surveys of the companies' condition and with their attorneys participated actively in the preparation and negotiation of the proposed *408 plan of reorganization; that in the early stages of these negotiations they were in effect reorganization managers, and, "if the situation had remained as it then was, they undoubtedly would have appeared in that capacity in the reorganization proceedings and have qualified for an allowance under the terms of the statute."
As a result of the reorganization, the business has been turned back to the reorganized company with the properties intact and well integrated with fixed charges greatly reduced and on a sound financial basis and with its good will unimpaired. The court stated: "This is an achievement for which those who have been in a position of responsibility both in the administration of the estate and the reorganization of the company are entitled to substantial recognition."
For this work we think the appellants should be allowed $25,000 and their just disbursements of $14,287.29.
Order reversed.
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ACCEPTED
03-14-00560-CR
3871260
THIRD COURT OF APPEALS
AUSTIN, TEXAS
1/23/2015 1:20:16 AM
JEFFREY D. KYLE
CLERK
CAUSE NO. 03-14-00560-CR
IN THE COURT OF APPEALS, THIRD SUPREME JUDICIAL DISTRICT
_____________________
FILED IN
CHRISTOPHER NEWBERRY 3rd COURT OF APPEALS
Appellant AUSTIN, TEXAS
VS. 1/23/2015 1:20:16 AM
THE STATE OF TEXAS JEFFREY D. KYLE
____________________ Clerk
Cause No. C1CR-14-209349, Travis County, Texas, County Court #5, Honorable,
Nancy Hohengarten, presiding
____________________
APPELLANT'S FIRST MOTION FOR EXTENSION OF TIME TO FILE BRIEF
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
COMES NOW, CHRISTOPHER NEWBERRY, appellant, pursuant to U.S.Const.,
Amends. 5 & 14, Tex.Const., Art. I, Secs. 13 & 19, and T.R.A.P., not limited to Rules
4.1, 10.5, 38.6 and 38.9, and moves the Court to extend the time for filing appellant’s
brief SIXTY (60) days to March 16, 2015, and shows:
I. PROCEDURAL HISTORY.
On or about August 7, 2014, on plea of not guilty, a jury convicted appellant of driving
while intoxicated, a class B misdemeanor. The court assessed sentence of 120 days
Travis County jail, no fine. Motion for New Trial apparently was timely filed August 28,
2014. Notice of Appeal was filed prematurely on August 28, 2014, and an Amended
Notice of Appeal was filed October 14, 2015 (correcting the defendant’s name in the body
of the Notice). The reporter's record was filed December 16, 2014.
II. NO PRIOR EXTENSIONS.
Appellant has received no extensions of time to file his brief.
III. TIME OF MOTION.
The brief was due January 15, 2015. This motion is filed by mailing within 15 days
thereof.
IV. REASONS FOR EXTENSION OF TIME.
Appellant requests for an extension of time based on the following:
1. Counsel is presently working on the brief in the appeal of Cause No. 03-14-00193,
Martin Lopez Montejo v. The State of Texas, presently due on February 4, 2015.
2. Counsel was out of town with family for Christmas from December 21 to 28, 2014.
3. In the last 30 days, counsel represented some 36 clients with some 60 cases
(approximately 29/49 appointed and/or jail requiring prompt disposition) and disposed of
some 4 defendants and 4 cases.
5. Therefore, asks this Honorable Court to extend the time for filing brief SIXTY (60)
days to March 16, 2015, so appellant will be given a full and meaningful appeal and
accorded due process and due course of law, his right to appeal and effective assistance of
counsel.
WHEREFORE, appellant prays this Court grant this motion and extend the time for filing
his brief SIXTY (60) days to March 16, 2015.
RESPECTFULLY SUBMITTED,
/s/ Christopher P. Morgan
Christopher P. Morgan
State Bar No. 14435325
3009 N. IH 35
Austin, Texas 78722
(512) 472-9717 // FAX: 472-9798
ATTORNEY FOR APPELLANT
CERTIFICATE OF SERVICE: I, Christopher P. Morgan, certify a true and correct
copy of this Motion was served on the Office of the County Attorney for Travis County,
Texas on January 23, 2015, by mail to P.O.Box 1748, Austin, TX 78767 .
/s/ Christopher P. Morgan
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United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-1148
___________________________
Patrick Ryan Bray
lllllllllllllllllllll Plaintiff - Appellant
v.
Bank of America
lllllllllllllllllllll Defendant - Appellee
____________
Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
____________
Submitted: July 6, 2015
Filed: August 3, 2015
[Unpublished]
____________
Before WOLLMAN, LOKEN, and BENTON, Circuit Judges.
____________
PER CURIAM.
Florida financial advisor Patrick Bray appeals the district court’s orders
dismissing his claims against Bank of America based on the anti-tying provision of
the Bank Holding Company Act (BHCA), 12 U.S.C. § 1972, and state defamation
law; denying him leave to amend; and denying his motion for reconsideration.
Having jurisdiction under 28 U.S.C. § 1291, and having granted rehearing of this
court’s opinion and judgment of June 9, 2015, this court now affirms in part, reverses
in part, and remands.
The district court determined that Bray’s BHCA claim should be dismissed
under either Federal Rule of Civil Procedure 12(b)(1) or 12(b)(6) because Bray
lacked Article III and statutory standing. After carefully reviewing the record and the
parties’ arguments on appeal, see Plymouth Cnty., Iowa v. Merscorp, Inc., 774 F.3d
1155, 1158-59 (8th Cir. 2014) (appellate court reviews standing determinations and
dismissal for failure to state claim de novo), this court reverses the dismissal of the
BHCA claim, and remands for the district court to consider in the first instance
whether Bray has standing in light of Lexmark Int’l, Inc. v. Static Control
Components, Inc., 134 S. Ct. 1377, 1391-92 (2010) (holding injured party who was
not direct competitor of defendant may have statutory standing to bring unfair
competition claim), see Sygenta Seeds, Inc. v. Bungee North America, Inc., 773 F.3d
58, 64-65 (8th Cir. 2014) (reversing dismissal of Lanham Act claim, and remanding
for reconsideration in light Lexmark); Hammer v. Sam’s East, Inc., 754 F.3d 492,
498-99 (8th Cir. 2014) (examining statute that created legal right at issue to determine
whether Article III standing existed).
This court affirms the district court’s dismissal of Bray’s state-law claims, see
Plymouth Cnty., 774 F.3d at 1158-59 (standard of review for dismissals under Fed.
R. Civ. P. 12(b)(6)), affirms the district court’s orders in all other respects, see
Mountain Home Flight Serv., Inc. v. Baxter Cnty., Ark., 758 F.3d 1038, 1045-46 (8th
Cir. 2014) (appellate court reviews denial of leave to amend for abuse of discretion);
Miller v. Baker Implement Co., 439 F.3d 407, 414 (8th Cir. 2006) (appellate court
reviews denial of motions under Fed. R. Civ. P. 59(e) or 60(b) for abuse of
discretion), and denies Bank of America’s pending motion to file a supplemental
brief.
______________________________
-2-
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Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/21/2020 12:07 AM CDT
- 579 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE ESTATE OF HUTTON
Cite as 306 Neb. 579
In re Estate of William Daniel
Hutton, deceased.
John Hodge, Successor Personal Representative
of the Estate of William Daniel Hutton,
deceased, appellee, v. Webster County,
Nebraska, appellant.
___ N.W.2d ___
Filed July 24, 2020. No. S-19-875.
1. Guardians and Conservators: Judgments: Appeal and Error.
Appeals of matters arising under the Nebraska Probate Code, Neb. Rev.
Stat. §§ 30-2201 through 30-2902 (Reissue 2016, Cum. Supp. 2018 &
Supp. 2019), are reviewed for error on the record. When reviewing a
judgment for errors on the record, the inquiry is whether the decision
conforms to the law, is supported by competent evidence, and is neither
arbitrary, capricious, nor unreasonable.
2. Decedents’ Estates: Attorney Fees. Ordinarily, the fixing of reasonable
compensation, fees, and expenses under the statutes governing com-
pensation of personal representatives, expenses in estate litigation, and
compensation of personal representatives and employees of the estate, is
within the sound discretion of the county court.
3. Statutes: Appeal and Error. Statutory interpretation is a question of
law, which an appellate court resolves independently of the trial court.
4. Costs. Costs of litigation and expenses incident to litigation may not
be recovered unless provided for by statute or a uniform course of
procedure.
5. ____. Whether costs and expenses are authorized by statute or by the
court’s recognition of a uniform course of procedure presents a question
of law.
6. Statutes: Legislature: Intent. In construing a statute, a court must
determine and give effect to the purpose and intent of the Legislature
as ascertained from the entire language of the statute considered in its
plain, ordinary, and popular sense.
- 580 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE ESTATE OF HUTTON
Cite as 306 Neb. 579
7. Statutes. It is not within the province of the courts to read a meaning
into a statute that is not there or to read anything direct and plain out of
a statute.
8. Legislature: Intent. The intent of the Legislature is expressed by omis-
sion as well as by inclusion.
Appeal from the County Court for Webster County: Michael
O. Mead, Judge. Judgment vacated.
Sara J. Bockstadter, Webster County Attorney, for appellant.
No appearance for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Funke, J.
Webster County, Nebraska (County), appeals from an order
of the county court requiring the County to pay fees and
expenses to a court-appointed successor personal representa-
tive. Because the court lacked the authority to order the County
to pay the successor personal representative fees, we vacate
the order.
BACKGROUND
William Daniel Hutton died intestate without a surviv-
ing spouse in February 2015. The county court granted an
application filed by Hutton’s only children, John Hutton and
Alexis Elledge, for informal appointment of copersonal repre-
sentatives of the estate. In July 2015, counsel for the coper-
sonal representatives withdrew from the case. Thereafter, each
copersonal representative retained independent counsel.
In January 2016, John filed a “Motion to Distribute Estate
Assets,” requesting that the court order Elledge to pay him
half the value of E.W. Seals, a business owned and operated
by William at the time of his death. John alleged that the busi-
ness had a value of $250,000. The court ordered the business
to be liquidated or sold with the proceeds to be paid to the
- 581 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE ESTATE OF HUTTON
Cite as 306 Neb. 579
estate. The copersonal representatives filed an inventory that
included valuations for all estate assets except E.W. Seals.
In January 2017, in response to an order to show cause,
Elledge filed a motion seeking the appointment of a new
personal representative who was not a family relative. The
motion alleged that there was a breakdown in communication
between the copersonal representatives due to disagreement
over the valuation and distribution of the E.W. Seals assets.
At the show cause hearing, the copersonal representatives
informed the court it was unlikely they would be able to
complete the administration of the estate. On February 14, the
court discharged John and Elledge as copersonal representa-
tives and appointed attorney John Hodge as successor per-
sonal representative.
In October 2018, Hodge filed an amended inventory which
valued the estate at approximately $420,000. Hodge filed a
statement of distributions of the prior copersonal representa-
tives showing that John had taken $210,455.62 and Elledge
had taken $147,908.43. Although the assets of the estate were
to be divided equally between the surviving children, John had
received $62,547.19 more than Elledge.
The estate owed $60,346.23 in federal income taxes and
$8,429.29 in state income taxes. The court ordered John and
Elledge to return liquid funds to Hodge for payment of estate
taxes, and then it granted Elledge’s motion for reconsideration
and ordered John to return the value of an investment account
and the value of a 2013 Toyota pickup.
Hodge filed a “Petition for Order to Pay Debts of the
Estate and Equalization of Assets Among Beneficiaries”
and a “Petition for Determination of Inheritance Tax and
Reimbursement of Prior Paid Tentative Inheritance Tax.”
Around this same time, Hodge filed an application for payment
of his fees and expenses. In December 2018, following a hear-
ing, the court ordered John to immediately return $62,547.19,
of which John returned $30,000. The court ordered Hodge to
pay court costs and outstanding federal and state taxes. The
- 582 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE ESTATE OF HUTTON
Cite as 306 Neb. 579
court continued to a later date the final settlement and Hodge’s
application for fees and expenses. Hodge used the remaining
funds in the estate’s account to pay $478 in court costs and
$42,545.89 in federal taxes.
Hodge completed administration of the estate and renewed
his application for fees and expenses. Per order of the court,
Hodge served the Webster County Attorney with a notice of
hearing for August 2, 2019. At the hearing, the court informed
the County that the estate was insolvent and that Hodge would
submit his request for payment to the County. The County
objected to being responsible for Hodge’s fees and expenses,
and it stated that Hodge’s application had not requested that
the County pay his fees and expenses. The County argued
that the estate at one point had substantial assets and that the
heirs of the estate should be held responsible for Hodge’s fees.
Hodge admitted he knew of no statutory authority to require
the County to pay his fees.
In its order dated August 13, 2019, the court found that
Hodge had served as a court-appointed successor personal
representative for 21⁄2 years and that his fees were fair and
reasonable given the amount of work involved. The court
found that the estate was insolvent and that the amount owed
by the heirs to the Internal Revenue Service and the Nebraska
Department of Revenue was likely uncollectible. The court
found that “the County . . . shall pay the amount of $6,455.63 to
. . . Hodge.”
The County appealed and is the only party to participate
in this matter. We moved this case to our docket on our own
motion.
ASSIGNMENTS OF ERROR
The County assigns, restated, that the court lacked authority
to order the County to pay the fees and expenses of the court-
appointed successor personal representative. The County fur-
ther contends that had the distributions taken by the original
- 583 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE ESTATE OF HUTTON
Cite as 306 Neb. 579
copersonal representatives not occurred, there would have
been sufficient assets for the estate to pay Hodge.
STANDARD OF REVIEW | {
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501 So.2d 901 (1987)
John F. HERBERT, Jr. and State Farm Fire and Casualty Company
v.
CITY OF KENNER.
No. 86-CA-471.
Court of Appeal of Louisiana, Fifth Circuit.
January 12, 1987.
*902 Marianne S. Pensa, Blue, Williams & Buckley, Metairie, for third party plaintiffs-appellants.
Edward J. Womac, Jr., Berrigan, Danielson, Litchfield, Olsen & Schonekas, New Orleans, for third party defendant-appellee.
Before GRISBAUM, DUFRESNE and GOTHARD, JJ.
GRISBAUM, Judge.
This appeal deals with the liability of landowners whose property is used primarily for recreational purposes. The defendants-third party plaintiffs, John F. Herbert, Jr. and State Farm Fire and Casualty Company, appeal the granting of summary judgment in favor of the third party defendant, the City of Kenner. We set aside, amend, and affirm.
We are called upon to determine one principal issue:
Whether the trial court erred in (apparently) finding that our statutory law in La.R.S. 9:2795 grants immunity to landowners who have made their land available for certain recreational purposes absent willful or malicious action.
FACTS
On May 17, 1984, minors Joseph John Raffo, Corey Salathe, and John Herbert III were playing on a mud pile in the Susan Park Playground in Kenner, Louisiana. While the boys were throwing chunks of mud at one another, Joseph Raffo was hit in the eye, causing permanent injury to his sight and head. His father, Joseph G. Raffo, filed suit in the Twenty-Fourth Judicial District Court, alleging the object had been thrown by the Herbert child. Named as defendants were John F. Herbert, Jr. and State Farm Fire and Casualty Company, Herbert's personal liability carrier. Herbert and State Farm answered and filed a third party demand against the City of Kenner as the municipal corporation which owned and was responsible for the maintenance of the playground. Thereafter, the City of Kenner moved for summary judgment, which was granted on April 11, 1986.
ANALYSIS
Initially, we note the record does not contain any reasons for judgment; accordingly, we are not privy to the legal basis which triggered the trial court's granting the motion for summary judgment on behalf of the City of Kenner. Appreciating this adversity, we look to our statutory law in La.C.C.P. art. 966, which, in pertinent part, states:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.
Under Louisiana's fact-pleading rules, La.C.C.P. arts. 854 and 891, issues of fact naturally become apparent on the face of the pleadings. Starting with the petition and going through the answer to the third party demand, we find mostly general denials in the defendants' answer, as well as in the third party defendant's answer. Obviously, issues of fact exist when factual allegations are denied. A further examination of the record reveals that several depositions have been taken in connection with this litigation; however, none were submitted with the motion. The record contains no supporting depositions, affidavits, and only one set of interrogatories and answers or admissions. The answers to the interrogatories do not shed much light on those facts pleaded and denied in the petitions. Although the memoranda submitted in support of the motion recounts events which took place at the playground, it is not to be considered under La.C.C.P. art. 966 as a document to support a summary *903 judgment. Accordingly, based on the general denials made, we can only conclude that genuine issues of material fact do exist. Therefore, summary judgment is not an available remedy.
Although we determine there is a genuine issue as to material fact, we must further decide whether, as a matter of law, the trial court erred in entering summary judgment, apparently finding that La.R.S. 9:2795 granted immunity to the City of Kenner under the facts presented. La.R.S. 9:2795, which limits liability of landowners whose property is used primarily for recreational purposes, states:
A. As used in this Section:
(1) "Land" means land, roads, water, watercourses, private ways and buildings, structures, and machinery or equipment when attached to the realty.
(2) "Owner" means the possessor of a fee interest, a tenant, lessee, occupant or person in control of the premises.
(3) "Recreational purposes" includes, but is not limited to, any of the following, or any combination thereof: hunting, fishing, trapping, swimming, boating, camping, picnicking, hiking, horseback riding, bicycle riding, motorized vehicle operation for recreation purposes, nature study, water skiing, ice skating, sledding, snow mobiling, snow skiing, summer and winter sports, and viewing or enjoying historical, archaeological, scenic, or scientific sites.
(4) "Charge" means the admission price or fee asked in return for permission to use lands.
(5) "Person" means individuals regardless of age.
B. Except for willful or malicious failure to warn against a dangerous condition, use, structure, or activity, an owner of land, except an owner of commercial recreational developments or facilities, who permits with or without charge any person to use his land for recreational purposes as herein defined does not thereby:
(1) Extend any assurance that the premises are safe for any purposes.
Note 2
(2) Constitute such person the legal status of an invitee or licensee to whom a duty of care is owed.
(3) Incur liability for any injury to person or property incurred by such person.
C. Unless otherwise agreed in writing, the provisions of Subsection B shall be deemed applicable to the duties and liability of an owner of land leased for recreational purposes to the federal government or any state or political subdivision thereof or private persons.
D. Nothing in this Section shall be construed to relieve any person using the land of another for recreational purposes from any obligation which he may have in the absence of this Act to exercise care in his use of such land and in his activities thereon, or from the legal consequences of failure to employ such care. Acts 1975, No. 615, §§ 2 to 5.
Preliminarily, it is undisputed that the City of Kenner did not act willfully or maliciously and that the playground was not operated on a commercial basis. See McCain v. Commercial Union Ins. Co., 592 F.Supp. 1 (W.D.La.1983). Also, jurisprudence in this state is well-settled that the term "owner" includes governmental entities, such as the City of Kenner. Rodrigue v. Firemen's Fund Ins. Co., 449 So.2d 1042 (La.App. 5th Cir.1984); Pratt v. State of La., 408 So.2d 336 (La.App. 3d Cir.1981), writ denied, 412 So.2d 1098 (La. 1982).
This Circuit, in Rodrigue v. Firemen's Fund Ins. Co., supra at 1043, quoting Pratt v. State of La., supra, stated, "`By its terms, the grant of immunity is made to any landowner who has made his land available for certain recreational purposes. The State, for purposes of this statute, stands in the same position as any other private litigant.' (Underlining supplied.)" We specifically note that in Rodrigue, supra at 1043 this Court clearly stated, "While we do not necessarily agree with this statutory interpretation, we cannot overlook it." In Rodrigue, supra, this Court affirmed the granting of the motion *904 for summary judgment, which dealt with an insurance company's contention that the Jefferson Parish Recreational Department, regarding an incident which occurred in a playground in the Parish of Jefferson, was immune from tort liability because of La. R.S. 9:2795. However, the Louisiana Supreme Court recently dealt with the question as to when property falls within the purview of "land" used for "recreational purposes," as defined in the statute. In Keelan v. State Dep't of Culture, Recreation and Tourism, 463 So.2d 1287 (La. 1985), the property in question was a swimming pool located in Fountainbleau State Park. In reversing the granting of a motion for summary judgment, Justice Marcus commented:
The use of the language "land and water areas" is suggestive of open and undeveloped expanses of property. Furthermore, the type of recreational activities enumerated in both statuteshunting, fishing, trapping, camping, nature study, etc.can normally be accommodated only on large tracts or areas of natural and undeveloped lands located in thinly-populated rural or semi-rural locales.... Thus, we conclude that the legislature intended to confer immunity upon owners of undeveloped, nonresidential rural or semi-rural land areas. The size, naturalness and remoteness or insulation from populated areas all attribute to the categorization of property as rural or semi-rural.
. . . . .
Examination of the characteristics of the land alone does not end the inquiry into whether the statutes apply to a | {
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Order Michigan Supreme Court
Lansing, Michigan
January 31, 2011 Robert P. Young, Jr.,
Chief Justice
Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
142457 (19) Diane M. Hathaway
Mary Beth Kelly
Brian K. Zahra,
Justices
KEVIN EDWARD WOODS,
Plaintiff-Appellant,
v SC: 142457
COA: 299981
TWENTY THIRD CIRCUIT COURT ADMINISTRATOR,
Defendant-Appellee.
___________________________________
On order of the Chief Justice, the motion to waive fees is considered and it
is DENIED because MCL 600.2963 requires that a prisoner pursuing a civil action be
liable for filing fees.
Within 21 days of the certification of this order, plaintiff shall pay to the
Clerk of the Court the initial partial filing fee of $26.00, shall submit a copy of this order
with the payment, and shall refile the copy of the pleadings which is being returned
with this order. Failure to comply with this order shall result in the appeal not being
filed in this Court.
If plaintiff timely files the partial fee and refiles the pleadings, monthly
payments shall be made to the Department of Corrections in an amount of 50 percent of
the deposits made to plaintiff’s account until the payments equal the balance due of
$349.00. This amount shall then be remitted to this Court.
Pursuant to MCL 600.2963(8) plaintiff shall not file further appeals in this
Court until the entry fee in this case is paid in full.
The Clerk of the Court shall furnish two copies of this order to plaintiff and
return plaintiff’s pleadings with this order.
I, Corbin R. Davis, 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.
January 31, 2011 _________________________________________
jam Clerk
| {
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66 F.3d 317
NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.David Bernard JORDAN, Defendant-Appellant.
No. 94-5602.
United States Court of Appeals, Fourth Circuit.
Sept. 14, 1995.
Anthony F. Anderson, Melissa W. Friedman, Roanoke, VA, for Appellant.
Robert P. Crouch, Jr., United States Attorney, Joseph W.H. Mott, Assistant United States Attorney, Roanoke, VA, for Appellee.
Before HALL, WILKINS, and MOTZ, Circuit Judges.
OPINION
PER CURIAM:
1
David Bernard Jordan appeals his convictions for conspiracy to distribute cocaine base, 21 U.S.C. Sec. 846 (1988), possession of cocaine base with intent to distribute, 21 U.S.C. Sec. 841(a)(1) (1988), possession of a firearm in relation to a drug trafficking crime, 18 U.S.C.A. Sec. 924(c) (West Supp.1995), possession of a firearm as a convicted felon, 18 U.S.C.A. Sec. 922(g)(1) (West Supp.1995), and possession of a firearm while a fugitive from justice, 18 U.S.C.A. Sec. 922(g)(2) (West Supp.1995). Finding no error, we affirm.
2
Jordan was arrested attempting to deliver a supply of cocaine to his co-defendant, Matthew White at White's house. Police had arrested White and were inside the house pursuant to the arrest when Jordan arrived by car.1 Jordan approached the house but turned around after looking in a front window. Police asked Jordan to stop but he fled and discarded a plastic bag containing cocaine base and powder. As he ran, Jordan kept his right hand under his coat. He eventually stopped, turned toward the police, and was brought to the ground by a detective. Police found a loaded .38 caliber handgun on the ground under Jordan's midsection.
3
At trial, defense counsel objected to the prosecution's use of a peremptory challenge as racially motivated. The prosecution struck Edwin Dennis, a twenty-eight-year-old unmarried African-American male with no children and the sole African-American venireman. When the trial court asked the Government to explain the strike, the prosecutor stated that Dennis was young, single, unmarried, and without children. He explained that the Government wanted jurors with substantial ties to the community.2 In addition, the prosecutor noted that Dennis "acted disinterested, like he was bored," had "his eyes closed," and "looked tired." The court allowed the strike, finding that the reasons articulated by the Assistant United States Attorney were the true reasons for the strike.
4
Jordan raises two claims on appeal. First, he objects to the prosecution's strike of Edwin Dennis from the venire. Second, he claims that there was insufficient evidence to support his conviction for possession of a handgun in relation to a drug trafficking crime.3 For the reasons discussed below, we find both grounds for appeal meritless.
I.
5
To sustain a challenge of racial discrimination in jury selection, a defendant must satisfy the standards set forth in Batson v. Kentucky, 476 U.S. 79 (1986). First, he must show facts giving rise to a prima facie case of discrimination. Id. at 96. If he succeeds, the government must articulate a race-neutral justification for the challenged strike. United States v. Grandison, 885 F.2d 143, 146 (4th Cir.1989), cert. denied, 495 U.S. 934 (1990). At this stage, the reason need not be rational or plausible, merely nondiscriminatory. Purkett v. Elem, No. 94-802, 1995 U.S. Lexis 3181, at * 4 (U.S. May 15, 1995) (per curiam). At the final stage, the burden shifts back to the defendant to prove that the strike was racially motivated and that the reason offered was pretextual. Id. We review the district court's Batson findings with deference and reverse only for clear error. United States v. Bynum, 3 F.3d 769, 772 (4th Cir.1993), cert. denied, 62 U.S.L.W. 3552 (U.S.1994).
6
Because the trial court required the prosecution to justify the strike, we need not review Jordan's prima facie case. United States v. Lane, 866 F.2d 103, 105 (4th Cir.1989). Turning to the reasons articulated by the Government for the strike, we find that they are race-neutral and carry no explicit or implicit racial connotations.4 Similarly, we conclude that the trial court did not clearly err in accepting the prosecution's reasons as the true reasons for the peremptory strike. Prior to striking Dennis, the prosecution struck two twenty-two-year-old single white females, leaving no single persons under thirty years of age on the jury.5 The prosecution was entitled to surmise that jurors who were older, married, and had children would care more about the presence of drug activity in their community. United States v. Valley, 928 F.2d 130, 135-36 (5th Cir.1991). Moreover, "[a] prosecutor is justified in striking jurors that he or she perceives to be inattentive or uninterested." United States v. Garrison, 849 F.2d 103, 106 (4th Cir.), cert. denied, 488 U.S. 996 (1988).
II.
7
Jordan's claim that the district court erred in denying his motion for judgment of acquittal is meritless. The standard for ruling on such a motion is whether substantial evidence exists which viewed in the light most favorable to the government would permit a reasonable jury to find the defendant guilty beyond a reasonable doubt. Fed.R.Crim.P. 29(a); United States v. MacCloskey, 682 F.2d 468, 473 (4th Cir.1982). A violation of Sec. 924(c) consists of (1) the use or carrying of a firearm; (2) during and in relation to a drug trafficking crime. United States v. Willis, 992 F.2d 489, 490 (4th Cir.), cert. denied, 62 U.S.L.W. 3248 (U.S.1993). To sustain a Sec. 924(c) conviction, "it is enough if the firearm is present for protection and to facilitate the likelihood of success, whether or not it is actually used." United States v. Smith, 914 F.2d 565, 567 (4th Cir.1990), cert. denied, 498 U.S. 1101 (1991).
8
Police testimony established that Jordan carried a .38 caliber handgun when he went to his co-conspirator's house to deliver a supply of cocaine. Possession with the intent to distribute cocaine base is a drug trafficking crime. 18 U.S.C.A. Sec. 924(c)(2) (West Supp.1995); United States v. Fisher, 912 F.2d 728, 731 (4th Cir.1990), cert. denied, 500 U.S. 919 (1991). We find the evidence more than sufficient to prove Jordan's guilt beyond a reasonable doubt.
9
We affirm Jordan's conviction. 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
1
White testified at trial that Jordan had supplied him with cocaine base to sell since September 1993
2
The transcript reads, "[T]he government looks at the type of community and finds those types, things like married with kids and that sort of thing." On appeal, Appellee explains that the prosecutor actually said "ties to the community." We do not find this language determinative and, therefore, accept the Government's clarification
3
Jordan moved for a judgment of acquittal on this count at the conclusion of the Government's case-in-chief and after the jury returned its verdict
4
Jordan claims for the first time on appeal that the prosecution's explanation was invalid under step two of Batson because it amounted to "gender discrimination on its face." (Brief for Appellant at 10) (citing J.E.B., Petitioner v. Alabama ex rel. T.B., 62 U.S.L.W. 4219, 4220 (U.S.1994)). We disagree. The prosecutor stated that he struck Dennis because he was young, single, and childless, not because he was male. The prosecutors two prior challenges of young, single females also contradicts Jordan's position. We find nothing facially or inherently discriminatory in the Government's articulated reasons for its strike. Therefore, district court did not err in finding these reasons sufficient to satisfy the prosecution's burden at stage two of the Batson analysis. See Purkett, 1995 U.S. Lexis 3181, at * 4
5
Jordan notes that the Government did not strike a thirty- | {
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872 F.2d 1521
50 Empl. Prac. Dec. P 39,046
William H. HAMER, et al., Plaintiffs-Appellants,v.CITY OF ATLANTA, et al., Defendants-Appellees.UNITED STATES of America, Plaintiffs,v.CITY OF ATLANTA, et al., Defendants.
Nos. 86-8607, 86-8788.
United States Court of Appeals,Eleventh Circuit.
May 23, 1989.
Antonio L. Thomas, Thomas & Dotson, Atlanta, Ga., for plaintiffs-appellants.
Marva Jones Brooks, W. Roy Mays, III, Deborah McIver Floyd, Atlanta, Ga., for City of Atlanta et al.
Anthony J. McGinley, Carter & Ansley, Atlanta, Ga., for D. Stewart, G. Rioux, R.G. Bickford, B. Poss and L. Miller.
Appeals from the United States District Court for the Northern District of Georgia.
Before RONEY, Chief Judge, CLARK, Circuit Judge, and MORGAN, Senior Circuit Judge.
CLARK, Circuit Judge:
1
This is an appeal from an order issued by the United States District Court for the Northern District of Georgia determining that a written examination given by the City of Atlanta for the purpose of promoting candidates in the Bureau of Fire Services from the rank of firefighter to fire lieutenant was properly validated. The appellants fault the decision of the district court in two respects: (1) the district court failed to recognize that the validation study on which the City of Atlanta relied was flawed; and (2) the district court erred in not determining whether alternative selection procedures would have had less of an adverse impact on the racial composition of those promoted.
2
The issue in this lawsuit is a narrow one. Although the City conceded that the promotions had an adverse impact on race, the appellants do not assert that the examination was racially biased. Instead, they attack the validation of the test. As will be discussed infra, if business necessity requires employees to perform certain specified skills, an employer is not guilty of violating Title VII of the Civil Rights Act if promotions are made pursuant to testing applicants for those skills by a procedure that is properly validated. 29 C.F.R. Sec. 1607.2(C) states:
3
Nothing in these guidelines is intended or should be interpreted as discouraging the use of a selection procedure for the purpose of determining qualifications or for the purpose of selection on the basis of relative qualifications, if the selection procedure had been validated in accord with these guidelines for each such purpose for which it is to be used.
4
The Guidelines do consider the subject of adverse impact under the heading of "Fairness," which is set forth in 29 C.F.R. Sec. 1607.14(B)(8) and is discussed infra at pages 1531-1532. We affirm.
I. HISTORY
5
The history of this case properly begins on September 18, 1975, when black firefighters filed a complaint in the United States District Court for the Northern District of Georgia, alleging that certain employment practices of the City of Atlanta were unlawfully discriminatory and violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e and 42 U.S.C. Secs. 1981, 1983 and 1985 (district court civil action C75-1809, in this court 86-8607). The district court allowed the International Association of Firefighters to intervene on behalf of white firefighters employed by the Bureau of Fire Services of the City of Atlanta. Thereafter, on December 12, 1975, the United States of America, as plaintiff, filed its own action against the City of Atlanta, (district court civil action C75-2315, in this court 86-8788). The district court consolidated the two actions and eventually all parties to this case entered into a consent order resolving all allegations of discrimination and reverse discrimination. In this consent order, the City of Atlanta agreed not to discriminate against any person in its Bureau of Fire Services on account of race. The consent order also included a provision stipulating that the district court retained jurisdiction over this matter and reserved the right to initiate, on its own motion, appropriate proceedings in the event a question arose as to any party's compliance with the provisions of the agreement. The consent order was approved by the district court on November 9, 1979. (R. 5 at 119).
6
The consent decree implicitly ratified City of Atlanta Ordinance Sections 11-3041 to 11-3048 (Defs.Exh. 1) which provided in part: "A candidate shall first take a written examination of knowledge that has been validated for content by a professional tester consulted in accordance with Title VII of the 1964 Civil Rights Act, as amended (42 U.S.C. Sec. 2000e et seq)." The general purpose of the ordinance "is to establish a promotional system for the bureau that provides for the selection of superior officers based solely on merit and qualifications." (Sec. 11-3041). The ordinance makes clear that a written examination is the sole component in making promotions to the rank of lieutenant. Promotion to captain, however, includes both a written examination and an oral examination.
7
In the summer of 1979, the City of Atlanta entered into a relationship with McCann Associates, Inc. of Huntingdon Valley, Pennsylvania, a professional test-developing firm. After preliminary studies and consultations, it was decided in 1980 that McCann was to provide the Bureau of Fire Services with a written, multiple-choice examination, to be used in promoting individuals to two company officer ranks--fire lieutenant and fire captain. The test would be based on a thorough job analysis, be reliable and valid, and would conform to the requirements of the Uniform Guidelines for Employee Selection Procedures. 29 C.F.R. Sec. 1607.
8
After completion of a job analysis, McCann developed a pool of 250 questions from which three alternative examinations could be drawn. In order to demonstrate the job relatedness of the potential exams, McCann subjected them to a criterion related validity study using the concurrent model. As part of the validation process, McCann asked shift commanders and battalion chiefs in the Bureau of Fire Services to give job performance ratings to 78 existing fire captains, using criteria developed by McCann. Forty-two captains were white and 36 were black. McCann trained the shift commanders and battalion chiefs in the rating procedure and the ratings for the 78 fire captains were taken in January, 1981. In March 1981, the pool of 250 questions was administered to the fire captains in the form of a written examination. Prior to taking the exam, McCann provided the fire captains with a test study guide and, after scoring the 78 exams, McCann compared each individual's test score with the performance rating given that individual by his supervisors.
9
The Uniform Guidelines for Employee Selection Procedures ("Guidelines") require a sufficiently high correlation between test scores and performance ratings in order to establish the criterion related validity of a promotion exam. In other words, an employer desiring to use a certain exam must first show that those performing well on the exam are also given high job performance ratings and those performing poorly are given lower job performance ratings. If a statistically significant relationship is indicated, then the examination is considered to be valid because a high grade on the examination is predictive of satisfactory performances.
10
When McCann compared the 78 test scores with their corresponding performance ratings, the correlation proved insufficient to meet the requirements of the Guidelines. Accordingly, none of the three alternative exams were validated. After analyzing the information that had been gathered up to that point, McCann Associates decided that the reason for the poor correlation was the relative inexperience of the shift commanders and battalion chiefs. Most of the supervisors had been promoted to their current positions only nine months previously. Not only did they lack experience at their own job, they had only had nine months to observe their subordinates. McCann concluded that this period of time was insufficient for the supervisors to adequately rate the performance of the fire captains. McCann and the City of Atlanta decided to have the supervisors rate the fire captains once again and compare the new ratings with the original test scores from March 1981. In June 1982, after fifteen months had passed since the exam had been given and after twenty-four months of supervision of those being rated had accrued, the rating was repeated, using the same training and techniques. Eleven new fire captains participated by taking the 250 question exam, raising the number of subjects to 89, 49 of whom were white, 40 of whom were black. When McCann compared the new ratings with the test scores, they found a correlation that was sufficient to satisfy the Guidelines for each of the three alternative forms of the exam.
11
After McCann reported the successful validation of the examination, the City of Atlanta decided to have McCann test the candidates in order to rank them for promotion to fire lieutenant. (R. 23-440). In October of 1984 the Bureau of Fire Services administered a written, multiple-choice examination for the purpose of promoting ten persons to the rank of fire lieutenant in the Bureau. Of the 270 firemen who took the test, 156 were black, 113 were white, and one was of "other" racial origin. (See Def.Exh. 2.) The persons who achieved the ten1 highest scores consisted of nine whites and one oriental. Because this result manifested a statistical adverse racial impact against black persons, the City engaged Dr. John Veres and Dr. Chester Palmer of | {
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185 B.R. 1009 (1995)
In re MALL AT ONE ASSOCIATES, L.P., Debtor.
Bankruptcy No. 93-15504 DAS.
United States Bankruptcy Court, E.D. Pennsylvania.
August 31, 1995.
*1010 *1011 Lawrence J. Tabas, Philadelphia, PA, for debtor.
Douglas Candeub, Adelman, Lavine, Gold & Levin, Philadelphia, PA, for Mall at One Group, L.P.
Joseph DiGiuseppe, Philadelphia, PA, for City of Philadelphia.
Stewart Paley, Klehr, Harrison, Harvey, Branzburg & Ellers, Philadelphia, PA, for Bank of New York Nat. Community Div.
Lawrence G. McMichael, Dilworth, Paxson, Kalis & Kauffman, Philadelphia, PA, for First American Title Ins. Co.
Ivan J. Krouk, Lincoln Rittenhouse, Philadelphia, PA, for RK Mall Corp., general partner of the debtor.
Frederic Baker, Ass't. U.S. Trustee, Philadelphia, PA.
OPINION
DAVID A. SCHOLL, Chief Judge.
A. INTRODUCTION
In the instant dispute, we are confronted with several issues arising in context to objections to proofs of tax claims ("the Objections") filed by the City of Philadelphia ("the City"). As to the issues to which the parties have directed the most attention, we will sustain the objection to all taxes which arose prior to the Debtor's purchase of the real property owned by it at the commencement of the underlying bankruptcy case, a shopping mall located at Roosevelt Boulevard and Grant Avenue in Philadelphia ("the Mall"). We believe that this resolution is appropriate because the City can effectively assert these claims against the purchaser of the Mall at an auction sale conducted in conformity with the Debtor's confirmed plan, especially since this party was also the prior owner of the Mall who was liable for the taxes arising prior to the Debtor's ownership of the Mall, and because the issues raised are unresolved state law issues in which the City has a strong interest, thus justifying our abstention.
We also hold that the City's real estate tax claims and its pre-petition business use and occupancy 1993 tax ("BU & O") claims are properly classified as seventh priority, rather than secured claims. As such, we hold that the Debtor's confirmed plan allows the City to receive most of the compensatory interest which it seeks, but not penalties which are collectible in addition to interest. Further, we find that the City post-petition 1994 real estate tax claims and its post-petition BU & O tax claims are properly classifiable as administrative claims as to which the Debtor's confirmed plan does not preclude the City from receiving all penalties as well as interest.
Finally, we honor the City's request not to classify the 1995 real estate taxes, and designate them as simply nondischargeable post-confirmation obligations also collectible from the Mall's purchaser.
B. FACTUAL AND PROCEDURAL HISTORY
MALL AT ONE ASSOCIATES, L.P. ("the Debtor") filed the underlying voluntary Chapter 11 bankruptcy case on September 24, 1993. As we explained in a prior to-be-published Opinion, now reported only at 185 B.R. 981 (Bankr.E.D.Pa.1995) ("Opinion II"), in which we mostly denied the Debtor's motion to recover attorney's fees and expenses from its primary secured creditors pursuant to 11 U.S.C. § 506(c), the Debtor's only business has been ownership and operation of the Mall. 185 B.R. at 984.
As is noted in Opinion II, at id., the Debtor had four principal creditors at the outset of the case: (1) the Bank of New York National Community Division, the *1012 first mortgagee of the Mall ("BNY"), which held a fully secured claim of $4.3 million; (2) Mall at One Group, L.P. ("Group"), the second mortgagee of the Mall, holding a claim of approximately $5.5 million which, in light of he $7.0 million value of the Mall, is undersecured; (3) ING Vastgoed One B.V., a third mortgagee whose $3.8 million claim was entirely unsecured; and (4) the City, which asserted secured, priority, and administrative tax claims totalling over $500,000.
After several failed attempts at presenting a confirmable plan, the Debtor succeeded in achieving confirmation of its Fifth Amended Plan of Reorganization Pursuant to Chapter 11 of the United States Code ("the Plan") on January 17, 1995. The Plan contemplated a sale of the Mall to a private entity, New Plan Realty Trust ("New Plan"), for a price of not less than $7 million, and provided for an auction sale of the Mall in the event that the sale to New Plan did not occur. Unfortunately, the sale to New Plan fell through, to the disappointment of all interested parties. As a result, the anticipated smooth consummation of the Plan did not occur. Instead, the auction alternative was triggered, which ultimately resulted in a successful credit bid of $7 million for the Mall by Group at the auction of April 11, 1995. As was exemplified by a dispute regarding the bid process resolved in Group's favor in a previous decision reported at 1995 WL 318851 (Bankr. E.D.Pa. May 23, 1995) ("Opinion I"), and as was noted in Opinion II, 185 B.R. at 984-985, these unexpected developments have led to considerable rancor and litigation among the parties. This is not surprising, because the Plan provisions are being applied to scenarios not envisioned by the parties at the time of confirmation.
The City filed two claims which are the subject of the Objections. The first (Claim No. 2), filed December 17, 1993, covered real estate taxes for tax years 1988, 1989, and 1993, and asserted a $288,048.06 totally-secured claim. The second (Claim No. 3), filed January 10, 1994, recited a $730.30 secured claim for unpaid water and sewer charges billed in June 1990,[1] and a $92,024.33 priority claim for BU & O taxes arising in various months between May 1988 and September 1993.
The Plan, drafted and confirmed in happier days when the New Plan sale was contemplated, treated the City's BU & O tax claims in Class 2 and its real estate tax claims in Class 3. The Plan provides for treatment of Class 2 claims as follows:
The Debtor expects to reach an agreement with the City as to Debtor's liability for business, use and occupancy taxes. . . . All Class 2 Allowed Claims shall be paid in full in Cash on the Effective Date or as soon as practicable thereafter, unless a holder of such Claim agrees to less favorable treatment. A total of 730.30 is claimed due by the City for water and sewer service and $92,754.63 was originally claimed due by the City for BU & O Taxes. The Debtor does not believe it is liable for BU & O Taxes in excess of $3,317.04. Such Claim for BU & O Taxes is therefore a Contested Claim. As part of the settlement discussed in Section 3.3 below [addressing the Class 3 claims], the Debtor expects the City to agree with the Debtor's position with respect to BU & O Taxes.
Class 3 claims, meanwhile, are treated as follows:
The 1993 (together with interest thereon through August 15, 1994) real estate taxes will be paid in full in Cash on the Effective Date. Although the Debtor does not believe it is liable for the 1988 and 1989 real estate taxes, and as the Debtor further believes that the taxes assessed by the City for 1988 and 1989 are excessive, such Claim is therefore a Contested Claim. In order to remove the lien of the 1988 and 1989 real estate taxes from the Property (a condition to its sale to the Property Purchaser or to any purchaser pursuant to an auction sale) without the delay and expense of litigation, the Debtor will agree to *1013 pay the 1988 and 1989 real estate taxes (together with interest thereon through August 15, 1994) in full in Cash on the Effective Date, provided that the City (i) agrees to accept $10,000 in respect to its Class 1 [administrative] Claim for payment of post-petition real estate taxes as an administrative expense, (ii) agrees that the Debtor's liability for BU & O Taxes is limited to $3,317.04 and (iii) fully releases Group and the Property Purchaser or any purchaser through an auction from any liability arising in connection with the Property at any time until the Confirmation Date, for any pre-petition or post-petition real estate taxes, BU & O Taxes or other taxes related to the Property.
The global settlement between the Debtor and the City anticipated as to much of the tax liability in issue was unfortunately never consummated. Therefore, the terms set forth in the last sentence of the immediately preceding Plan section never became effective.
On April 7, 1994, just prior to the auction sale, Group filed the Objections in issue. The Objections disputed numerous aspects of the City's claims, including the allegedly improper retroactive revocation of tax abatements previously granted to Group, as the prior owner of the Mall, for tax years including 1988 and 1989; the claim of secured status; the inclusion of penalties; and most of the liability for BU & O taxes. The Objections were originally scheduled for a hearing on May 24, 1995, but the hearing was continued several times to attempt to finalize a proposed settlement. Finally, on June 28, 1995, we ordered that a further request for a | {
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23 B.R. 56 (1982)
In re FLYING S LAND & CATTLE COMPANY, INC., a California Corporation, Debtor.
In re DOMICILES, INC., a California Corporation, Debtor.
Bankruptcy Nos. LA-80-08798(CA), LA-81-03055(CA).
United States Bankruptcy Court, C.D. California.
September 2, 1982.
*57 Lawrence A. Diamant, Robinson, Wolas & Diamant, Los Angeles, Cal., Trustee.
Robert M. Yaspan, Yaspan & Goch, Sherman Oaks, Cal., for Domiciles.
Jay L. Michaelson, Michaelson & Susi, Santa Barbara, Cal., for Flying S, etc.
James T. Eichstaedt, Los Angeles, Cal., United States Trustee.
Quinlan J. Shea, Jr., Andrea J. Winkler, Barbara G. O'Connor, Washington, D.C., for the Executive Office of the United States Trustees.
Edward S. Szukelewicz, Washington, D.C., for Administrative Offices, United States Courts.
MEMORANDUM OF DECISION
CALVIN K. ASHLAND, Bankruptcy Judge.
In each of these Chapter 11 cases Lawrence A. Diamant was the trustee. The problems of each debtor were resolved and each debtor requested dismissal of its case.
The debtors each agreed to the payment of a fee to the trustee. In Flying S Land & Cattle Company, Inc. it was $5,000; in Domiciles, Inc. it was $1,000. The Administrative Office of the United States Courts contends the fees should be $533.93 and $67.21, respectively, these amounts being the statutory maximum allowed by 11 U.S.C. § 326(a) which permits the court to allow reasonable compensation not to exceed stated percentages "upon all moneys disbursed or turned over in the case by the trustee to parties in interest, excluding the debtor..."
The Director of the Administrative Office of the United States Courts and the Executive Office for the United States Trustees, United States Department of Justice, submitted amicus curiae memoranda. The Executive Office's memorandum supports the position of the trustee.
The trustee in each case was not idle. In Flying S there was a 3,600 acre parcel of real property located on the coastal plane north of Santa Barbara near the Ronald Regan ranch. The property was subject to foreclosure. The only income was monthly rental payments of $2,500 from an avocado farming operation on the property. The trustee resolved a dispute between the debtor and John Travolta who had purchased part of the debtor's property before the bankruptcy proceedings. Resolution of the dispute concerning boundary location was necessary in order to sell the remaining property.
The trustee forestalled foreclosure, and the property was sold for $12 million. The buyer preferred to close the transaction with a seller outside of bankruptcy. There were no unsecured creditors. At the hearing on dismissal, the debtor supported the fee of $5,000 for the trustee as being merited by the time, effort, and success of the trustee.
In Domiciles, the president of the debtor was incarcerated and unable to manage the affairs of the debtor. The debtor's interest in one of two parcels of property was sold to the creditor seeking foreclosure. The trustee concluded the sale, negotiated the form and contents of the documents evidencing the transaction, and received the consideration paid the debtor. Again, there were no unsecured creditors. The debtor asked the trustee to support a dismissal and supported the fee to the trustee. The value of the property was scheduled as $835,000.
Bankruptcy Code § 326(a) was meant to exclude the recovery of compensation to the trustee only on exempt property returned to the debtor. Under the Bankruptcy Act *58 § 48, the trustee's commission was computed on "all moneys disbursed or turned over to any person, including lienholders." The legislative history of § 326(a) explains the basis for the maximum compensation to the trustee but does not give the rationale for the computation based upon moneys disbursed "to parties in interest, excluding the debtor..." H.R.Rep.No.595, 95th Cong., 1st Sess. (1977) at 327, U.S.Code Cong. & Admin.News 1978, pp. 5787, 6283. In reality, § 326(a) does not change prior law, except as to percentage, bases of compensation, and deletion of a minimum fee. A different interpretation would prevent the Code trustee from being compensated for the same services performed by an Act trustee.
Under § 541 the debtor's exempt property becomes part of the estate. Under the Bankruptcy Act it did not. The phrase "excluding the debtor" in § 326(a) protects the debtor's exempt property from diminution because it is not a base upon which compensation can be computed.
The limitations on trustee compensation in § 326(a) should not apply when funds are returned to the debtor because of a dismissal. Where the trustee has rendered services the debtor will be unjustly enriched, upon dismissal, unless the trustee is compensated. Bankruptcy courts have exercised their powers by conditioning the return of property to the debtor upon payment of compensation to the trustee. In re Rennison, 13 B.R. 951 (Bkrtcy.W.D.Ky.1981); In re Wolfe, 12 B.R. 686 (Bkrtcy.S.D.Ohio 1981); In re Hendricks, 11 B.R. 48 (Bkrtcy.D.Mo. 1981).
Under § 349(b) "[u]nless the court, for cause, orders otherwise, a dismissal ... (3) revests the property of the estate in the entity in which such property was vested immediately before the commencement of the case ..." It is by operation of law rather than any action in the case that revests property in the debtor. Similarly, under § 348(c) upon conversion the service of any trustee serving in the case prior to conversion is terminated. The distribution the trustee makes is by operation of law incidental to the conversion not in the case itself. Where there is a surplus estate, generated by the efforts of the trustee but not claimed because creditors have not filed proofs of claim, it would be unfair to reward the debtor and not compensate the trustee. The words "excluding the debtor" in § 326(a) could not have been intended not to compensate a trustee in these situations.
The compensation in Flying S and Domiciles is reasonable in each case and should be allowed. A separate order will be entered.
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16 F.3d 419NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.
Segunda M. IGNACIO, Petitioner,v.MERIT SYSTEMS PROTECTION BOARD, Respondent.
No. 93-3253.
United States Court of Appeals, Federal Circuit.
Nov. 24, 1993.
Before RICH, ARCHER, and MAYER, Circuit Judges.
DECISION
PER CURIAM.
1
Segunda M. Ignacio petitions for review of the September 25, 1992 initial decision of an Administrative Judge (AJ), Docket No. SE-0831-92-0308-I-1, which dismissed as untimely filed Ignacio's appeal of a final decision issued by the Office of Personnel Management (OPM) on January 29, 1991 denying her application for a survivor annuity under the Civil Service Retirement System (CSRS). The AJ's decision became the final decision of the Merit Systems Protection Board (Board) on January 14, 1993, when the Board denied review of the AJ's decision. We affirm.
DISCUSSION
2
In its final decision, OPM clearly informed Ignacio that there was a twenty-five day time limit for filing an appeal of OPM's final decision to the Board. OPM also provided Ignacio with instructions for filing such an appeal. Ignacio did not appeal OPM's final decision to the Board, however, until May 29, 1992, approximately over one year and three months after the twenty-five day time limit for doing so.
3
Upon receipt of Ignacio's untimely appeal, the AJ informed her in an Order dated June 15, 1992 that she had the burden of proof on timeliness. The AJ ordered her to file "evidence and argument showing that [her] appeal was timely filed or that good cause existed for the delay." Because Ignacio failed to set forth any explanation regarding her delay in appealing OPM's final decision in her response to this Order, the AJ dismissed her appeal as untimely. In her petition for review of the AJ's decision, dated May 5, 1992, Ignacio belatedly argued that her untimely filing was excusable because there were probably mail delays and because Filipino claimants were provided with poor assistance by OPM and the Board. Given that she had not raised these arguments previously, the Board justifiably denied review of her petition and adopted the AJ's decision as the final decision of the Board.
4
In her petition to this court, Ignacio fails to provide any explanation regarding her one year and three month untimeliness in filing her appeal. Instead, she merely sets forth arguments as to the merits of her entitlement to a survivor annuity. We note, however, that this court is faced with the narrow issue of whether the AJ erred in dismissing Ignacio's appeal for untimeliness, Rowe v. Merit Sys. Protection Bd., 802 F.2d 434, 437 (Fed.Cir.1986), and therefore we may not address Ignacio's underlying claim to annuity benefits.
5
As to Ignacio's delay in filing her appeal, we cannot say that the AJ erred in dismissing her appeal on the basis that she had failed to establish good cause for her lengthy delay in filing her appeal. The Board has broad discretion in deciding whether or not to waive the regulatory time limit for filing an appeal, and this court will not substitute its own judgment for that of the Board. Mendoza v. Merit Sys. Protection Bd., 966 F.2d 650, 653 (Fed.Cir.1992) (in banc). In addition, this court reviews Board decisions under a very narrow standard, affirming them unless they are (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, (2) obtained without procedures required by law, rule, or regulation having been followed, or (3) unsupported by substantial evidence. 5 USC Sec. 7703(c) (1988). Finding no such grounds present here, we affirm the decision below.
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 06-2939
___________
United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * District of South Dakota.
*
Orville Red Feather, *
*
Appellant. *
___________
Submitted: January 8, 2007
Filed: March 13, 2007
___________
Before COLLOTON and GRUENDER, Circuit Judges, and GOLDBERG,1 Judge.
___________
GOLDBERG, Judge.
Appellant Orville Red Feather (“Red Feather”) appeals from his sentence of
30 months of imprisonment. For the reasons that follow, we affirm.
I.
In July 1994, Red Feather pleaded guilty to aggravated sexual abuse in violation
of 18 U.S.C. § 2241(c) for sexually assaulting a four-year-old girl. The district court
1
The Honorable Richard W. Goldberg, Judge, United States Court of
International Trade, sitting by designation.
sentenced him to 135 months of imprisonment and four years of supervised release.
The applicable guideline range was 135 to 168 months of imprisonment. After
serving his time in prison, Red Feather began his term of supervised release in July
2004, and was placed in a community facility in Rapid City, South Dakota. The
government filed a petition to revoke Red Feather’s supervised release later that year
after he absconded from the facility with two women. The government rescinded that
petition after the state dismissed charges relating to the escape. On one occasion in
December 2004, he tested positive for marijuana and cocaine.
Later, in March 2005, he was transferred to another facility for poor attendance
and lack of participation in sex offender treatment. He was terminated from the
second facility for falling asleep during treatment sessions and for inappropriate
conduct with female clients. As a result, his supervised release was revoked on June
1, 2005, and he was sentenced to 12 months in custody followed by 30 months of
supervised release. After release from custody on February 1, 2006, Red Feather was
placed again in the Rapid City community facility. The doctor in charge of the Rapid
City treatment program terminated Red Feather’s participation in the program when
he suspected Red Feather of violating the confidentiality of group participants by
sharing discussion details with facility residents not participating in the program. He
then was admitted to another sex offender treatment program outside the Rapid City
facility. On June 10, 2006, he tested positive for alcohol consumption. Four days
later, he was terminated from the program, which violated the terms of his supervised
release. The government filed a petition to revoke the supervised release that same
day.
At the revocation hearing, the district court2 determined the applicable
revocation range was 5 to 11 months. The government asked for an upward variance
2
The Honorable Richard H. Battey, Senior United States District Judge for the
District of South Dakota.
-2-
from the revocation range. The district court then sentenced Red Feather to 30 months
of imprisonment with no term of supervised release to follow. At the hearing, the
district judge explained his decision as follows:
The Court is to consider the sentencing range, but also take into account certain
factors listed in 18 United States Code section 3553(a) which includes a
statutory goal of deterrence, incapacitation, and rehabilitation, the pertinent
circumstances of the individual case, the applicable policy statements, sentence
uniformity, and, if necessary, restitution. . . . The Court finds that the sentence
to be imposed is necessary to further the goals of deterrence. The Court is not
convinced that the defendant has rehabilitated nor can he be rehabilitated under
the existence of supervised release if reinstituted. [Red Feather]’s continued to
display the same pattern of selfish, immature, and belligerent behavior as he did
prior to being revoked last year. He continues to disregard the conditions of the
Court and of those in authority . . . . He has continued to manipulate those
around him to satisfy his wants and has no desire to stop abusing substances
which adds credence to the fact that he will go to any means to attain some type
of hallucinogenic effect. This is particularly important since he was intoxicated
when he admitted both previous sexual assaults.3
On appeal, Red Feather argues that the district judge erred on two accounts: first, the
sentence represents an extraordinary variance without extraordinary justifying
circumstances and therefore is unreasonable; and second, the sentence is greater than
is necessary to achieve the purposes of sentencing set forth in 18 U.S.C. § 3553(a)(2).
II.
Congress has given district courts the authority to revoke supervised release and
“require the defendant to serve in prison all or part of the term of supervised release
3
The Court presumes that the district court meant to say that Red Feather was
intoxicated when he committed both previous assaults. The record evidence indicates
his intoxication at the time of the felonies’ commission, and not the time of their
admission.
-3-
authorized by the statute for the offense that resulted in such term of supervised
release . . . .” 18 U.S.C. § 3583(e)(3) (2000). “In fashioning an appropriate
revocation sentence, the district court is to consider the sentencing range, but also
‘must take into account certain of the factors listed in 18 U.S.C. § 3553(a), including
the statutory goals of deterrence, incapacitation, and rehabilitation; the pertinent
circumstances of the individual case; applicable policy statements; sentencing
uniformity; and restitution.’” United States v. Nelson, 453 F.3d 1004, 1006 (8th Cir.
2006) (quoting United States v. Cotton, 399 F.3d 913, 916 (8th Cir. 2005)); see also
18 U.S.C. § 3583(e) (Supp. II 2002). Sentences imposed following revocation of
supervised release are subject to appellate review for reasonableness. See United
States v. Larison, 432 F.3d 921, 922 (8th Cir. 2006); United States v. Tyson, 413 F.3d
824, 825 (8th Cir. 2006). The reasonableness of the sentence is to be gauged in
relation to the relevant § 3553(a) factors listed above. See Nelson, 453 F.3d at 1006.
A. An “Extraordinary Variance” Must Be Supported by “Extraordinary
Circumstances”
Red Feather’s first argument is that his extraordinary variance was based on
quite ordinary violations of his supervised release conditions. We have held in the
past that “an extraordinary variance must be supported by extraordinary circumstances
. . . .” United States v. Lyons, 450 F.3d 834, 837 (8th Cir. 2006); see also United
States v. Dalton, 404 F.3d 1029, 1033 (8th Cir. 2005). Red Feather makes much of
the fact that the 30 month sentence imposed amounted to 272 percent of the upper end
of the revocation range. Such an upward variance almost certainly is “extraordinary”
under our precedents. See, e.g., United States v. Reithemeyer, 2006 U.S. App. LEXIS
29100, *5-*6 (8th Cir. Nov. 22, 2006) (upward variance from 12 months to 36 months
deemed extraordinary); United States v. Beal, 463 F.3d 834, 836 (8th Cir. 2006)
(downward departure from 188 months to 104 months deemed extraordinary); United
States v. Likens, 464 F.3d 823, 825-26 (8th Cir. 2006) (100 percent downward
variance deemed extraordinary); Dalton, 404 F.3d at 1030 (downward departure from
-4-
240 months to 60 months is extraordinary). Red Feather’s sentence, then, was
reasonable only if there existed extraordinary circumstances for varying so drastically
from the revocation range.
When modifying or revoking supervised release, a district court is to consider,
inter alia, the possibility that a defendant’s violations of his supervised release
conditions will place others in danger, and the possibility of correctional treatment.
See 18 U.S.C. §§ 3553(a)(2)(C)-(D) & 3583(e) (2000). Red Feather claims that the
alcohol consumption that resulted in his termination from the program is by no means
an extraordinary circumstance. In many cases, that may be unassailably true.
However, cast against the background of Red Feather’s criminal history and substance
abuse problem, the alcohol consumption presents an extraordinary threat to the
community. Red Feather is a two-time sex offender. When he was 17 years old, he
committed a violent rape. Within a year of being released from state custody for | {
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 11-2764
___________
Estate of Nell G. Pepper, by the *
administrator for both Estates, Norma *
Deeble; Estate of Sterling Gary Pepper, *
by the administrator for both Estates, *
Norma Deeble, *
* Appeal from the United States
Appellants, * District Court for the
* Southern District of Iowa.
v. *
*
Nancy Pease Whitehead; *
Pease Family Partnership, *
*
Appellees. *
___________
Submitted: March 14, 2012
Filed: July 31, 2012
___________
Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.
___________
WOLLMAN, Circuit Judge.
Plaintiffs, the Estate of Sterling Gary Pepper and the Estate of Nell G. Pepper
(the Estates), appeal the district court’s order granting Nancy Pease Whitehead and
the Pease Family Partnership’s (the defendants) motion for summary judgment. We
reverse and remand.
I.
The parties find themselves in a dispute over the rights to an extensive
collection of Elvis Presley memorabilia (the collection). The collection was amassed
by Sterling Gary Pepper, Jr. (Gary), who had a deep love for Elvis’s music, developed
a close personal friendship with Elvis (often referred to as the “King of Rock and
Roll”), and served as Elvis’s fan club president.1 Gary often found himself at the
center of Elvis’s personal life, sitting at the head table at Elvis and Priscilla Presley’s
wedding reception, posing for photographs with the young couple at Graceland after
the birth of their daughter, Lisa Marie, and receiving front row seats to many Elvis
concerts.
In 1971, Gary’s father, Sterling Gary Pepper, Sr. (Gary, Sr.), died of a heart
attack while on security guard duty at the Graceland gates. His death left only Gary’s
mother, Nell Pepper (Nell), to care for Gary, who suffered from cerebral palsy.
Gary’s condition adversely affected his daily life, rendering him unable to walk, use
his hands, or speak in a manner that could be understood by many persons other than
Nell. Nell eventually found herself unable to care for Gary because of the severe
depression and periodic manic states she suffered from following Gary, Sr.’s death.
Her condition deteriorated to such an extent that she frequently defecated on the floor
when upset, ran away from home, constantly banged on doors for lengthy periods,
stopped cleaning Gary’s wet bed, and allowed the house to fall into a state of squalor.
Meanwhile, in 1974, Nancy Pease Whitehead’s (Nancy’s) love of Presley’s
music caused her to move from her home in Cedar Rapids, Iowa, to Memphis,
Tennessee, to enable her to absorb the local culture of her idol’s hometown. Nancy,
1
Gary played an integral role in founding and developing “The Tankers,” a fan
club named in honor of Elvis’ service with the Third Armored Division stationed in
Germany from 1958 to 1960. At the height of its membership, the Tankers’
worldwide membership exceeded 5,000.
-2-
a licensed practical nurse, frequently spent her days hoping to catch a glimpse of
Elvis at the gates of Graceland, where one day she was approached by Carl Nichols,
a member of Presley’s inner circle. Aware of Nell’s inability to care for Gary,
Nichols informed Nancy that Gary and Nell needed assistance.
Upon learning of Gary and Nell’s needs, Nancy began assisting them in 1976
at their modest two-bedroom bungalow on Eva Street. Nancy slept on the living
room couch, worked to improve the home’s conditions, assisted Gary with physical
therapy, and taught him how to swim and drive. By all accounts, Nancy provided
care that was steadfast, loyal, and true. Recognizing the need for additional
assistance, Nancy eventually invited her mother, Helen, and brother, Dennis, to also
move from Cedar Rapids to Memphis, and the two of them began living with Nancy,
Gary, and Nell at the Eva Street house, supporting themselves on Helen, Gary, and
Nell’s social security and Gary’s fan club income. Finding the home inadequate for
their needs, the five moved to a house on Dolan Street, next to the home of Presley’s
father, Vernon Presley, fulfilling Gary’s wish of being nearer to Graceland.2 The
house met their every need, and the five lived there together as a family.
Elvis died on August 16, 1977. The death of Gary’s idol wrought great change
in the lives of the Dolan Street household. On October 28, 1977, Gary and Nell
received notice from Vernon Presley that Elvis’s estate, charged with the duty of
conserving assets for its beneficiaries, could no longer keep Gary on its payroll. At
that point, without means of financial support beyond Gary, Nell, and Helen’s social
security checks, Nancy concluded that they could not afford to continue living in
Memphis. Gary and Nancy’s relationship became strained when Gary opposed a
surgery that Nancy believed he needed to reduce his spasticity. Nancy and Helen
2
The parties dispute who purchased the Dolan Street home. Defendants
contend that Helen and Nancy purchased the house, while plaintiffs argue that Gary
and Nancy pooled their money to purchase the house.
-3-
eventually decided to return to Cedar Rapids, where Nancy’s brother had a house that
Nancy, Helen, Dennis, Gary, and Nell could reside in for free. Concerned for Gary
and Nell’s health and convinced that they would not want to live in the only Memphis
nursing home that would take them, Nancy invited them to move to Cedar Rapids
with her, Helen, and Dennis. All moved to Cedar Rapids in April of 1978.
Defendants contend that sometime between Elvis’s death and the move to
Cedar Rapids, John Tate—Nell’s nephew and Gary’s cousin—traveled from his
California home to Memphis, where he visited them on February 3, 1978.3
Defendants contend that the purpose of Tate’s visit was to help Gary consider the
above-mentioned surgery. John Tate at some point discussed with the Peppers the
possibility of moving Gary and Nell to California as a solution to their care needs.
It is unclear to what extent items of the collection were displayed at the Dolan Street
house at the time of Tate’s visit or whether ownership of the items on display was
discussed, though Nancy testified in her deposition that Tate knew of the full extent
of the collection.
Also accompanying Gary, Nell, Nancy, Helen, and Dennis to Cedar Rapids was
Gary’s vast collection of Elvis-related memorabilia. In the summer of 1978, Gary and
Nell entered a Cedar Rapids nursing home, which Nancy considered a “holding area”
until the Tates could come to take Gary and Nell to California. Gary brought some
of his memorabilia to the nursing home, with the remainder of the collection staying
at Nancy’s home.
3
The Estates also alleged in their Second Amended Complaint that sometime
after the Peppers and Peases moved to Cedar Rapids in April of 1978, “Mr. Tate
traveled to Gary Pepper’s former home in Memphis, Tennessee to pack up Gary’s
remaining items of property, but found that the home was empty.” Second Am.
Compl. ¶ 18. The record does not include any evidence of this trip.
-4-
At some point, Gary and Nancy discussed the future of the collection. In her
deposition testimony, Nancy explained that Gary told her to “keep it for him,” and
that she did not interpret Gary’s statement as transferring possession or gifting the
collection to her. Whitehead Dep. at 138. Nancy further testified that she never
thought that the collection belonged to her and that Gary “never actually gave” the
collection to her. Id. Rather, Gary left the collection at Nancy’s house for Nancy to
“watch over it” while he planned his upcoming move to California and determined
his living arrangements there. Id. at 55. In addition, Nancy testified, “I thought, you
know, maybe he wanted it sent to him later when he knew where he was going to be
going.” Id. at 138. The record does not suggest any contemplation of a finite length
of time that Nancy was to hold the property for Gary, or of a specified time for Gary
to demand that the property be returned. In any event, according to Nancy, Gary did
not want the collection thrown away, so she saved it.
In the fall of 1978, John Tate and his mother, Rebecca Tate (Nell’s sister),
came to Cedar Rapids from their California home and removed Gary and Nell from
the nursing home. Rebecca, after packing all of Gary and Nell’s belongings that were | {
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82 Cal.App.2d 670 (1947)
JOHN B. ROMANO, Appellant,
v.
WILBUR ELLIS & COMPANY (a Corporation) et al., Respondents.
Civ. No. 13440.
California Court of Appeals. First Dist., Div. Two.
Dec. 3, 1947.
McLaughlin, McGinley & Hanson and James A. McLaughlin for Appellant.
Walter Slack, Gavin McNab, Schmulowitz, Aikins, Wyman & Sommer, Nat Schmulowitz and Sidney F. DeGoff for Respondents.
NOURSE, P. J.
Plaintiff sued in tort arising from the alleged representations of defendants which induced a third party to repudiate its contract with plaintiff. A demurrer to the complaint was sustained without leave to amend, a timely request for leave to amend was denied, and judgment was entered for defendants.
[1a] 1. Does the complaint state a cause of action? It is alleged that in 1941 a Peruvian corporation named "Industrial Pesquera, S.A." executed a written contract with plaintiff and one Reed, copartners, for the exclusive right for the period of 10 years to sell its fish and fish products. In June 1942, the partnership of appellant and Reed was dissolved. Appellant took over the entire business and with the oral consent of Pesquera, the written contract was continued in force, and appellant continued the business under the old partnership name having duly filed a certificate for that purpose. In June, 1943, defendants falsely represented to Pasquera that appellant was not fit or qualified to represent them, that Pesquera could deal more profitably and advantageously with defendants if it would discontinue its contractual relations with plaintiff and deal solely through *672 defendants, and persuaded them to cancel their contract with appellant and to refuse to pay him the agreed commissions as agent.
The pleadings present a case closely akin to Elsbach v. Mulligan, 58 Cal.App.2d 354 [136 P.2d 651]. [2] One who fraudulently and wrongfully induces another not to perform a contract is liable for the harm thus caused. Restatement Torts, 766; Remillard-Dandini Co. v. Dandini, 46 Cal.App.2d 678 [116 P.2d 641]; H. G. Fenton Mat. Co. v. Challet, 49 Cal.App.2d 410 [121 P.2d 788]; Imperial Ice Co. v. Rossier, 18 Cal.2d 33 [112 P.2d 631]; Speegle v. Board of Fire Underwriters, 29 Cal.2d 34 [172 P.2d 867].
[1b] Neither the complaint nor the proposed amendment is a model of good pleading but a triable cause of action is pleaded. It is said in Imperial Ice Co. v. Rossier, supra, page 35: "Most jurisdictions also hold that an action will lie for inducing a breach of contract by the use of moral, social, or economic pressures, in themselves lawful, unless there is sufficient justification for such inducement. (See cases cited in 84 A.L.R. 55; 24 Cal.L.Rev. 208, 209; see Sayre, Inducing Breach of Contract, 36 Harv.L.Rev. 663, 671; Carpenter, Interference With Contractual Relations, 41 Harv.L.Rev. 728, 732; Rest., Torts, sec. 766.)" Again, at page 39, the court said: "By inducing Coker to violate his contract, as alleged in the complaint, they sought to further their own economic advantage at plaintiff's expense. Such conduct is not justified." (Emphasis added.)
In the Speegle case, however, the defendants were charged with having caused the termination of plaintiff's contracts as an insurance broker because he refused to comply with their demand to cease to represent nonboard companies. The court cited with approval the Imperial Ice Company case to the point that: "Intentional and unjustifiable interference with contractual relations is actionable in California as in most other jurisdictions." (P. 39.) The Speegle case seems to rest on the question whether the activities of defendants were justifiable." (P. 41.) This expression is used in many of the cases cited, but without definition. By way of illustration it is said in the Imperial Ice Company case that employees may bring pressure upon others to induce breaches of contract between an employer and his employees to improve their economic relations. On the other hand, it is said: (P. 37) "A party may not, however, under the guise of competition actively and affirmatively induce the breach *673 of a competitor's contract in order to secure an economic advantage over that competitor.""
In 41 Harvard Law Review, page 747, cited in the Speegle case the principles here are thus recapitulated:
"The interest in freedom from interference with contracts cannot be invaded with impunity in furtherance of an interest in freedom to enter into contract relations, an interest less highly protected in the law than the interest in contracts. Therefore, if the defendant enters into a contract with a person, who is already under contract with the plaintiff, with knowledge or surmise of the existence of the prior contract, and of the fact that performance to the defendant will prevent performance to the plaintiff, he is merely furthering his interest to enter into contracts and he should not only not be able to recover on the contract which he has made, but should be held liable for inducing breach of contract, or be enjoined from interference, even though the prior contract does not give the third person a property interest."
[3a] The proposed amended complaint presents such a case. It charges the defendants with falsely representing to Pesquera that plaintiff was "not fit or qualified to act as agent" for the purpose of convincing Pesquera to terminate its agency with the plaintiff and to employ the defendants in that capacity.
[4] It is immaterial whether after the dissolution of plaintiff's partnership his contract with Pesquera was one "at will." Speegle v. Board of Fire Underwriters, supra, says (p. 39) that "at the will of the parties, respectively does not make it one at the will of others," and that "the great majority of the cases have held that unjustifiable interference with contracts terminable at will is actionable."
2. Is the action barred by the statute of limitations? This is not an action for breach of the contract between appellant and Pesquera. The latter is not a party to the action. The suit is for damages for fraud. The accepted rule of the cases hereinabove cited is that the gist of this type of action is fraud. Section 1573 of the Civil Code provides: "Constructive fraud consists:"
"1. In any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, or anyone claiming under him, by misleading another to his prejudice, or to the prejudice of anyone claiming under him." *674
In Imperial Ice Co. v. Rossier, supra, the court said:
"It is universally recognized that an action will lie for inducing breach of contract by a resort to means in themselves unlawful such as libel, slander, fraud, physical violence, or threats of such action." (P. 35.) If a party were suing for simple libel, slander or physical violence, the cause would be limited to the one-year period of section 340. But the gist of the action is the "fraudulent inducement" leading to the breach of the contract. Elsbach v. Mulligan, 58 Cal.App.2d 354, 366 [136 P.2d 651]. [5] The complaint sets forth that these false representations were relied on by Pesquera, that they were uttered with the intent to mislead Pesquera to the prejudice of plaintiff and that they were made for the purpose, and accomplished the result, of gaining "an advantage to the person in fault." This is fraud under section 1573 of the Civil Code. As an action based on fraud it comes within the three-year limitation of subdivision 4, section 338, Code of Civil Procedure. Since the complaint was filed within three years of the act complained of, it is not barred by the statute.
3. Respondents attack the validity of the assignment of the agency contract by Reed to his partner Romano; they also attack the validity of the oral consent of Pesquera accepting the assignment and continuing the written contract in full force. From this they argue that since the oral contract covered a period of more than one year, it was within the statute of frauds and so unenforceable. Practically all the authorities are contra. (See 41 Harv.L.Rev. p. 739, n. 12.)
[6] An oral contract is not void on its face because it may continue an obligation for more than one year. The promissor may waive the statute if he sees fit. [7] An assignment of a partnership interest in an agency contract is not voidable at the will of a third party, such as the defendants herein. There are many factors such as acquiescence, confirmation and estoppel which may arise when these issues come to trial on the merits. In the Speegle case, supra, it was held that this type of action would lie in relation to a contract terminable at will. From the allegations in the complaint, it appears that appellant contends that his contract with Pesquera was terminated through the fraud of respondents, not because of the elimination of the partnership nor because some subsequent oral contract to continue the agency might have been terminable at will. | {
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IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
OCTOBER 12, 2000 Session
GENERAL BANCSHARES, INC. v. VOLUNTEER BANK & TRUST
Appeal from the Chancery Court for Marion County
No.6357 John W. Rollins, Judge by designation
No. M2000-00231-COA-R3-CV - Filed November 30, 2000
The Plaintiff, General Bancshares, Inc., filed a declaratory judgment action asking the Trial Court
to declare a restrictive covenant in its warranty deed unenforceable. Defendant Volunteer Bank &
Trust’s predecessor in title of the property at issue originally placed the restriction on the property
several years ago. Plaintiff contends, among other arguments, that the restrictive covenant does not
bind it as a remote grantee because the restrictive clause does not contain specific “successors and
assigns” language. Both parties filed Motions for Summary Judgment, and the Trial Court granted
Defendant’s Motion. Plaintiff appeals. We affirm.
Tenn. R. App. P. 3; Judgment of the Chancery Court Affirmed; case Remanded.
D. MICHAEL SWINEY, J., delivered the opinion of the court, in which HERSCHEL P. FRANKS , J. and
CHARLES D. SUSANO, JR., J. joined.
C. Dewees Berry, IV, and Susan W. Foxman, Nashville, Tennessee, for the appellant, General
Bancshares, Inc.
Tracy C. Wooden, Chattanooga, Tennessee, for the appellee, Volunteer Bank & Trust.
OPINION
1
Background
This suit arises from a dispute regarding a restrictive covenant on a parcel of property
(hereafter "Property") located in the Town of Powell's Crossroads. Plaintiff, General Bancshares,
Inc., is the current owner of the Property. Plaintiff filed this declaratory judgment action, asking the
Trial Court to find that a restriction in its warranty deed (hereafter "Restrictive Covenant") was not
enforceable. Defendant, Volunteer Bank & Trust, is a successor to the previous owner of the
Property, Marion Trust & Banking Company. In 1989, Marion Trust & Banking sold the Property
to the Town of Powell's Crossroads, a municipality, with the Restrictive Covenant being contained
in that warranty deed.
The relevant portions of the warranty deed for the 1989 conveyance are as follows:
MARION TRUST & BANKING COMPANY, has this day bargained
and sold, and does hereby sell, transfer and convey unto
TOWN OF POWELL'S CROSSROADS,
its successors and assigns, the following described real estate situated
in the Third Civil District of Marion County, Tennessee, and more
particularly described as follows, to-wit:
********
RESTRICTION: This property may not be used by
any financial institution as a place of business for a
period of twenty-five (25) years from the date hereof.
The Restrictive Covenant immediately follows the description of the Property and a clause setting
forth an exception to the property description.
Thereafter, the Property was conveyed three more times before the conveyance to
Plaintiff in 1998. Throughout these conveyances, the Restrictive Covenant remained in the chain
of title, albeit with a few changes. After the initial conveyance in 1989, the Property was acquired
in 1996 by NPF X, Inc., by warranty deed which contained the verbatim language of the Restrictive
Covenant. Later that same year, the Property was sold to Star Health Services, Inc., and the property
description attached to the warranty deed contained a restriction which was identical to the
Restrictive Covenant except that it stated "a financial institution" instead of "any financial
institution." In 1997, Eddie and Pamela Mooneyham bought the Property by special warranty deed
which contained a restriction identical to the one found in Star Health's warranty deed, except that
it stated that the 25-year restriction began running on the date of the most recent transfer in
October,1996.
2
In 1998, Plaintiff purchased the Property from the Mooneyhams who are not a party
to this litigation. Plaintiff's warranty deed, in pertinent part, states as follows:
WE, EDDIE D. MOONEYHAM and wife, PAMELA J.
MOONEYHAM, do hereby sell, transfer and convey unto
GENERAL BANCSHARES, INC., a Tennessee Corporation
its successors and assigns, the following described real estate, situated
in the Third Civil District of Marion County, Tennessee, and more
particularly described as follows, to-wit:
********
RESTRICTIONS: This property may not be used by
a financial institution as a place of business for a
period of Twenty-five (25) years from the date of the
conveyance from Marion Trust & Banking Company
to the Town of Powell [sic] Crossroads dated April
12, 1989, and recorded on July 10, 1990, in Deed
Book 141, Pages 217, et seq., Register's Office of
Marion County, Tennessee.
As in the 1989 warranty deed, the Restrictive Covenant immediately follows the description of the
Property.
Plaintiff and Defendant each filed a Motion for Summary Judgment. The Trial Court
granted Defendant's Motion for Summary Judgment. Plaintiff appeals.
Discussion
On appeal, Plaintiff argues that the Restrictive Covenant is not enforceable for the
following reasons: 1) the Restrictive Covenant itself does not contain the "successors, and assigns"
language; 2) the restriction does not run with the land because it does not confer a corresponding
benefit on another particular parcel of land; 3) the restriction is not enforceable as an equitable
servitude because the Property is not part of a common development plan; and 4) Defendant is not
a third party beneficiary to the Restrictive Covenant because the Mooneyhams did not intend to
benefit Defendant with the restriction contained in the 1998 warranty deed.
Defendant does not dispute the Trial Court's decision. Defendant contends that the
plain language of the Restrictive Covenant and the format of the 1989 warranty deed is proof of the
intent of the original grantor and grantee to bind remote grantees such as Plaintiff. Defendant also
argues that the Restrictive Covenant is enforceable against Plaintiff because Plaintiff had actual
notice of the restriction and because the Restrictive Covenant was in the chain of title. Alternatively,
3
Defendant argues that the Restrictive Covenant is enforceable as an equitable servitude.
Our Supreme Court outlined the standard of review of a motion for summary
judgment in Staples v. CBL & Assoc., 15 S.W.3d 83 (Tenn. 2000), as follows:
The standards governing an appellate court's review of a motion for
summary judgment are well settled. Since our inquiry involves
purely a question of law, no presumption of correctness attaches to
the lower court's judgment, and our task is confined to reviewing the
record to determine whether the requirements of Tenn. R. Civ. P. 56
have been met. See Hunter v. Brown, 955 S.W.2d 49, 50-51
(Tenn.1997); Cowden v. Sovran Bank/Central South, 816 S.W.2d
741, 744 (Tenn.1991). Tennessee Rule of Civil Procedure 56.04
provides that summary judgment is appropriate where: (1) there is no
genuine issue with regard to the material facts relevant to the claim
or defense contained in the motion, see Byrd v. Hall, 847 S.W.2d 208,
210 (Tenn.1993); and (2) the moving party is entitled to a judgment
as a matter of law on the undisputed facts. See Anderson v. Standard
Register Co., 857 S.W.2d 555, 559 (Tenn.1993). The moving party
has the burden of proving that its motion satisfies these requirements.
See Downen v. Allstate Ins. Co., 811 S.W.2d 523, 524 (Tenn.1991).
When the party seeking summary judgment makes a properly
supported motion, the burden shifts to the nonmoving party to set
forth specific facts establishing the existence of disputed, material
facts which must be resolved by the trier of fact. See Byrd, 847
S.W.2d at 215.
To properly support its motion, the moving party must either
affirmatively negate an essential element of the non-moving party's
claim or conclusively establish an affirmative defense. See McCarley
v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn.1998);
Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn.1997). If the moving
party fails to negate a claimed basis for the | {
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962 A.2d 1197 (2008)
COM.
v.
WELK.
No. 485 MAL (2008).
Supreme Court of Pennsylvania.
December 17, 2008.
Disposition of petition for allowance of appeal. Denied.
| {
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543 U.S. 937
WARDv.BARRON, WARDEN.
No. 04-6097.
Supreme Court of United States.
October 12, 2004.
1
C. A. 6th Cir. Certiorari denied. Reported below: 93 Fed. Appx. 41.
| {
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300 So.2d 401 (1974)
In re Kathe E. TAPLEY, Plaintiff,
v.
LIBERTY SUPER MARKETS OF BIRMINGHAM, Alabama, Defendant.
Ex parte William T. TARPLEY, Petitioner.
6 Div. 602.
Court of Criminal Appeals of Alabama.
January 15, 1974.
Rehearing Denied March 5, 1974.
*402 Douglas, Arant, Brittin T. Coleman, Birmingham, for petitioner.
Russell T. McDonald, Jr. and Michael W. McCormick, Birmingham, for respondent.
HARRIS, Judge.
Petitioner was adjudged guilty of contempt of court for failing to appear as a witness for the plaintiff in the above styled civil action in the Circuit Court of Jefferson County and was sentenced to four (4) days confinement in the Jefferson County Jail. We granted certiorari to review the findings and judgment of the trial court.
This is a first impression case in this State as it deals with an "on call" civil subpoena. It is a case of extreme importance to the trial courts especially in the metropolitan areas of the State, the trial bar, local bar associations and the medical association or local medical societies.
The factual background of this case is necessary to an understanding of our decision.
On June 28, 1972, Kathe E. Tapley filed a complaint for damages against Liberty Super Markets of Birmingham in the Circuit Court for the Tenth Judicial Circuit *403 of Alabama. On May 21, 1973, petitioner was served with a subpoena issued by the plaintiff. The subpoena directed the sheriff to summon petitioner to appear before the Civil Division of that court on June 11, 1973, at 8:45 A.M. and continue from day to day thereafter until discharged. The subpoena contained the following: "William T. Tarpley, M.A. (On Call), 1023 South 20th Street, Birmingham, Alabama."
Petitioner is an orthopedic surgeon actively engaged in the practice of medicine in Birmingham. For a number of years an agreement has been in effect between the Birmingham Bar Association and the Jefferson County Medical Society which provides that the attorney for a party to a civil action who causes a doctor to be subpoenaed will communicate with the doctor in advance of trial and keep the doctor advised as to when the case will be tried. This is usually done by the attorney's secretary calling the doctor's secretary. Sometimes there is a direct call from the attorney to the doctor. The doctor then makes his arrangements to appear in court. The underlying purpose of this agreement is to avoid having a doctor wait in the witness room at the courthouse when he could be treating patients in his office or in the hospitals. This agreement has the sanction of the circuit judges in Birmingham and in other circuits throughout the State where there are similar agreements between local bars and medical societies. All trial courts and the trial bar know that civil cases are often settled after a jury is struck and sometimes after the case has been tried a half a day or even several days and a doctor has not been called to come to court. Cases have been settled while the doctor was enroute to the courthouse in response to a call.
The case of Tapley v. Liberty Super Markets was called for trial on June 12, 1973, in Judge Ingram Beasley's courtroom and the trial got underway on the morning of June 13, 1973. On June 12 Mr. Clay Alspaugh, one of the attorneys for the plaintiff, telephoned petitioner with regard to him testifying on June 13 at 9:00 A.M. Petitioner informed the attorney that he had surgery scheduled that morning and could not cancel it. The attorney then asked petitioner if he could come at 1:30 P.M. on June 13 and petitioner said he would be present in court to testify at 1:30 P.M. unless something unforeseen occurred. The attorney told petitioner that if he finished surgery earlier than expected on June 13, 1973, to call him and possibly petitioner could be put on the stand before 1:00 P.M., but surgery was not completed until around 12:30 P.M. and petitioner did not call the plaintiff's attorney. Petitioner's partners had been out of town for two weeks and he had forty-six (46) patients in the hospital to see. Early in the afternoon of June 13, petitioner was at Shelby Memorial Hospital in Alabaster, Alabama. When he finished at Shelby Memorial Hospital, he had to go to Brookwood Hospital in Birmingham where he arrived at about 4:30 P.M. He got home on the afternoon of June 13, 1973, at about 5:45 P. M.
At 3:00 P.M. on June 13, Judge Beasley adjourned court because of the absence of petitioner. In an effort to assure petitioner's presence in court at 9:00 A.M., June 14, 1973, Judge Beasley issued an attachment for him. This attachment was delivered to the office of the Sheriff of Jefferson County by one of Judge Beasley's clerks. At 9:00 A.M. on June 14, the petitioner was not in court and in checking on it, Judge Beasley found that the attachment had never been served on petitioner. Thereupon a mistrial was declared and the Sheriff was ordered to "appear before this court at 9:00 A.M. on Friday, June 15, 1973, and bring with him all clerks and deputies who in any way processed or handled or attempted to process or handle or who had anything to do with the receipt, execution or handling of the writ of attachment issued to him pursuant to the above order on June 13, 1973."
The civil subpoena clerk in the Sheriff's Department received the writ of attachment *404 about 3:10 P.M. on June 13 and put it on the desk of a Lt. Fordum who was in command of the 4:00 P.M. to midnight shift. Somehow the writ of attachment got misplaced by a deputy and did not reach the serving deputy until around 9 or 10:00 P.M. and because of the lateness of the hour, it was decided not to serve it on petitioner at his home. These facts were made known to Judge Beasley after he had declared a mistrial at 9:00 A.M. on June 14, 1973. Judge Beasley then ordered the sheriff to arrest petitioner and put him under a fifty-dollar bond conditioned to appear before him at 9:00 A.M. on June 15, 1973. When this bond was presented to petitioner by a deputy sheriff, petitioner requested permission to make a copy of it and the deputy told him that he had an attachment for him and he could also make a copy of it. This was petitioner's first knowledge that an attachment had been issued for his appearance in court on June 14, 1973, at 9:00 A.M. The fifty-dollar-appearance bond was to answer a criminal prosecution for the offense of defaulting witness (Judge Beasley's Court).
The order calling for the issuance of the attachment is in words and figures as follows:
"6-13-73 Dr. William T. Tarpley having been subpoenaed as a witness in this case and failing or refusing to appear as directed the Clerk of this Court is hereby directed to issue a writ of attachment directing the Sheriff of Jefferson County to attach the person of the said Dr. William T. Tarpley and produce him in person before this Court on June 14, 1973 at 9:00 o'clock A.M. Ingram Beasley, Judge."
The clerk handling civil subpoenas in the clerk's office in issuing the attachment omitted the words and figures: "at 9:00 o'clock A.M." This left the word "(INSTANTER)" on the printed form to denote the time element. At the hearing in this case, the trial court took note of this omission but went on to say that "Instanter means right now, instantly. That's what the word means, instantly. It's a matter of cooperation between the court and the sheriff's department. I don't have to keep putting everybody in jail. I attach them because I want to impress upon them that I need them and want them in court at that time. If he had been served, we would have tried this case and we would have had a verdict. It would have been over and done with. As it is, of course we're going to have to try it over again, and I think if the doctor had been called on the telephone, he would have been here. People in that position are not trying to evade law when they know what they're doing."
After petitioner had made his sworn explanation to the court, and after the testimony of three of the sheriff's deputies, and after an unsworn statement of the sheriff extolling the virtues of his office as follows:
"The policy and procedure, Judge Beasley, that I have instigated in the sheriff's office over the past ten years is that each paper is treated individually and with importance, and that we do not sluff some aside that we might think are important or others that we might think aren't, and I think our performance is such that we would like to say we had one hundred percent service, and those that we do not include in the effort of striving for that goal we show not found, or some other reason why not served. I think our office is to be criticized in this matter, because we did receive the paper as I am advised by Chief Belcher. On attachments, we normally get a flier stapled or gem clipped to the order denoting the urgency of the matter, but I think like the court does that attachments carry the urgency with the word itself, and yet even at the late hour of ten or later we very well might or should have awakened the doctor, but our | {
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78 Ill.2d 353 (1980)
399 N.E.2d 1295
MORTON GROVE PARK DISTRICT
v.
AMERICAN NATIONAL BANK AND TRUST COMPANY, Trustee, et al., Appellants (Edward J. Rosewell, County Treasurer, Appellee).
No. 51698.
Supreme Court of Illinois.
Opinion filed January 23, 1980.
*354 *355 *356 *357 Earl L. Neal, of Chicago, for appellant.
Bernard Carey, State's Attorney, of Chicago (Paul P. Biebel, Jr., Deputy State's Attorney, and Mercer Cook and Michael F. Baccash, Assistant State's Attorneys, of counsel), for appellee.
Reversed and remanded.
MR. JUSTICE RYAN delivered the opinion of the court:
American National Bank and Trust Company of Chicago and others (hereinafter referred to as defendants or the condemnees), appeal from an order denying them the income earned on a condemnation award deposited with the treasurer of Cook County, by the condemnor, Morton Grove Park District (Morton Grove), during the time that expired while the condemnees appealed the amount of the award. It is now contended that denying the condemnees the income earned on the money deposited with the treasurer constitutes a taking without just compensation in violation of the Illinois and United States constitutions.
The facts of the case are undisputed. Defendants were the title owners of several parcels of real property in Morton Grove. The park district (not a party to this appeal) filed a petition to condemn the property on December 11, 1972, pursuant to the Eminent Domain Act (Ill. Rev. Stat. 1971, ch. 47, par. 1 et seq.). A jury found the fair market value of the property to be $1 million, and a judgment was entered on the verdict on January 31, 1974. The award, plus $15,478.06, the statutory interest on the award from the date of the judgment until the date of deposit, was deposited by the park district with the county treasurer on April 29, 1974. Pursuant to section 13 of the Act (Ill. Rev. Stat. 1973, ch. 47, par. 13), the court entered an order on May 9, 1974, placing the park district in possession of the *358 land. The order also required a $200,000 surety bond to secure the payment of such compensation as may be finally adjudged as provided in section 13.
Defendants appealed the amount of the award. During the appeal the park district had the possession and use of the condemned property and the treasurer of Cook County held the award. The appellate court affirmed both the determination of value and order transferring possession to the park district pursuant to section 13 of the Act. (Morton Grove Park District v. American National Bank & Trust Co. (1976), 39 Ill. App.3d 426.) This court denied leave to appeal. Defendants then petitioned the trial court for an order upon the county treasurer to pay out the $1,015,478.06 plus interest earned thereon from the date it was deposited until the date of payment to defendants. The award had earned $92,357.08 through investment by the county treasurer. The trial court ordered the $1,015,478.06 paid to defendants on November 10, 1976, but denied defendants' petition for payment of the earnings on the award. The appellate court affirmed the trial court's decision. (67 Ill. App.3d 709.) We allowed defendants' petition for leave to appeal. It is agreed that the award earned $92,357.08.
After just compensation has been determined in a condemnation suit, an award earns interest from the time the judgment is entered until the condemnor pays the award to the county treasurer. When the award, and any statutory interest that has accrued, are deposited with the treasurer, as provided in section 14 of the Act (Ill. Rev. Stat. 1973, ch. 47, par. 14), the statutory and constitutional requirements of just compensation for the property taken are satisfied. (Department of Public Works & Buildings v. Butler Co. (1958), 13 Ill.2d 537, 546.) Section 13 of the Act provides that when the party in whose favor an award has been entered appeals, the condemnor shall, notwithstanding, have the right to use the property upon entering into a bond conditioned on the payment of such *359 compensation as may be finally adjudged. Pursuant to section 13, the trial court in this case entered an order authorizing the park district to take possession of the property upon the filing of a bond in the amount of $200,000, conditioned as required by that section. When the award was paid to the county treasurer and the bond filed as ordered, title to the condemned property vested in the park district and related back to the filing of the petition to condemn. (Chicago Park District v. Downey Coal Co. (1953), 1 Ill.2d 54, 57; Accord, County of Cook v. Vander Wolf (1946), 394 Ill. 521, 528; Forest Preserve District v. Chicago Title & Trust Co. (1932), 351 Ill. 48, 55.) When the park district deposited the award with statutory interest and filed the required bond, the requirement of just compensation from the condemnor with respect to the owners was satisfied. The income earned on the deposited monies should not therefore be considered as additional compensation from the condemnor for the property taken. The park district did all that was required, and its obligation to defendants ended when it made the deposit with the county treasurer and filed the required bond.
The owner of condemned property has a constitutional and statutory right to appeal a judgment in an eminent domain case. (Ill. Const. 1970, art. VI, sec. 6; Ill. Rev. Stat. 1971, ch. 47, par. 12.) However, under sections 10(a) and 14 of the Eminent Domain Act (Ill. Rev. Stat. 1971, ch. 47, pars. 10(a), 14) the condemnee's award is deposited with the county treasurer during the course of an appeal from an award and the money may not be withdrawn by the owner without abandoning all objections to the award, that is, abandoning the appeal. (See County of Cook v. Malysa (1968), 39 Ill.2d 376, 379, where the court stated that eminent domain adheres to the general rule in civil cases that when a judgment has been voluntarily paid or its benefits accepted the question becomes moot.) Thus, the condemnor can terminate its obligation *360 to the owner for interest on the award by paying the amount thereof, plus accrued interest, to the county treasurer, and can divest the owner of the property and enter into possession. However, the owner may not exercise the statutory and constitutional right to appeal without forfeiting the right to use the amount of the award pending the appeal.
In Moll v. Sanitary District (1907), 228 Ill. 633, the court stated that a condemnee who appeals an award and prevails is entitled on retrial to have submitted to the jury empaneled to fix just compensation the claim for interest for the time the condemnee was deprived of possession of his property, as an additional element of compensation. In dicta, relied on by the county treasurer, the court stated that if the appeal had been unsuccessful the condemnee would not be entitled to interest because the loss of the appeal demonstrates that he should have accepted the award and not appealed. Moll was decided under the Illinois Constitution of 1870, which did not grant an absolute right to appeal until it was amended in 1962. However, in the present case there is a constitutional right to appeal. Also, here the owners are seeking to recover the money the award earned while held by the county treasurer, and not interest on the award as an additional element of just compensation for the land taken.
In Illinois the payment of money to the county treasurer acts as a substitute for the condemned property under section 14 of the Eminent Domain Act. (Forest Preserve District v. Chicago Title & Trust Co. (1932), 351 Ill. 48, 55; Department of Public Works & Buildings v. Porter (1927), 327 Ill. 28, 34.) The funds held by the county treasurer pursuant to section 14 are private funds belonging to the condemnees, and as the treasurer admits in his brief, the condemnees may withdraw them at any time as long as they are willing to forgo appeal. (County of Cook v. Vander Wolf (1946), 394 Ill. 521, 528.) Defendants contend they are entitled to the money earned on the *361 deposit.
Concerning the earnings of money deposited with the county treasurer the legislature has provided:
"All earnings accruing on any investments or deposits made by the County Treasurer whether acting as such or as County Collector, of county monies as in this Act is defined, shall be credited to and paid into the County Treasury for the Benefit of the county corporate fund to be used for county purposes, except where by specific statutory provisions such earnings are directed to be credited to and paid to a particular fund." (Ill. Rev. Stat. 1971, ch. 36, par. 22.1.)
"The term `county moneys' shall include all monies to whomsoever belonging, received by or in possession or control of the incumbent of the office of county treasurer when acting as such or in any other official capacity incident to his incumbency of the office of county treasurer." (Ill. Rev. Stat. 1971, ch. 36, par. 17.)
Relying on the literal meaning of these statutes, the trial court and the appellate court held that the money earned on the funds held by the county treasurer is to be deposited into | {
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162 A.2d 528 (1960)
Joseph JACKOWITZ et ux.
v.
Arthur P. DESLAURIERS et ux.
Eq. No. 2811.
Supreme Court of Rhode Island.
July 8, 1960.
On Motion to Reargue July 26, 1960.
Robert Brown, Providence, for complainants.
Vincent J. Chisholm, Providence, for respondents.
ROBERTS, Justice.
This is a bill in equity wherein the complainants seek to restrain the respondents from entering upon a certain parcel of real estate the title to which the complainants aver to be in them and from maintaining a hedge and fence thereon. The respondents filed an answer in the nature of a cross bill wherein they prayed that certain affirmative relief be granted them with respect to the parcel of land in question. After a hearing in the superior court, the trial justice entered a decree wherein he declared in substance that title to the real estate was in the complainants; that the respondents had an easement to maintain a cesspool thereon; that they should proceed forthwith to remove the hedge and fence; and that they be enjoined from further entry upon the land other than would be consistent with their easement. From that decree the respondents have appealed to this court.
*529 It appears from the record that in 1947 the Leroy Realty Corporation, hereinafter referred to as the corporation, acquired a tract of land in the Riverside section of the city, formerly the town, of East Providence. This tract was subsequently platted as the Leroy Heights Plat and developed for residential uses. It further appears that at that time and until 1952 Leroy Hanson, a housebuilder, was president of the corporation.
It further appears that on February 18, 1948 the corporation conveyed a house and lot located on that plat to respondent Arthur P. Deslauriers, who shortly thereafter conveyed the property to himself and his wife. This lot was designated as lot 46 on said plat and is situated on the easterly side of Wingate Road. It is bounded on the south by lot 45, which is located at the northeast corner of Wingate Road and Sandra Court. Both lots are bounded on the east by lot 69, which is situated on the northerly side of Sandra Court. Lot 69 is the property of complainants, having been conveyed to them by the corporation on July 30, 1958.
It is not disputed that the respondent husband, who is a civil engineer by profession, took up residence in the house on lot 46 early in 1948 and that in the spring of that year he was engaged by Hanson to make certain surveys on the plat concerning the location of the lot lines. In the course of such work said respondent ascertained that his house was located so close to the southerly line of lot 46 that he would be unable to build a garage and breezeway on the south side thereof. Neither is it disputed that thereafter, acting under the direction of Hanson, the respondent husband made a survey by which a long, narrow strip along the northerly line of lot 45 was incorporated into lot 46 and a similar strip along the westerly edge of lot 69 was incorporated into lot 45. These parcels, referred to in complainants' exhibit 3 and the transcript as parcel "A" and parcel "B," are not relevant to the issue here.
However, it is the further contention of said respondent that at the same time and under Hanson's direction he ran a survey line from the northeast corner of parcel "A" in a northeasterly direction to a point on the plat at the southwest corner of lot 48. Such line enclosed an irregularly shaped portion of lot 69 which lay immediately to the east of his own lot 46 and is referred to in the exhibit and the record as parcel "C." In his testimony Hanson disputes his participation in this transaction.
It is clear that for some time the respondent husband has treated parcel "C" as part of his own lot, extended his lawn into that parcel, and planted a hedge and erected a fence along the easterly line thereof. In his decision the trial justice found that parcel "C" was the property of complainants and on that ground granted the relief set out in the decree appealed from. The respondents, in pressing their appeal, contend that the trial justice erred, first, in finding that they had not acquired title to that parcel by adverse possession and, second, that there had been no acquiescence by complainants in the easterly line of parcel "C" as the boundary line between the properties sufficient to estop them from asserting that it is not the true boundary line.
The respondents' claim that they have acquired title to parcel "C" by adverse possession is, of course, made in reliance upon the provisions of general laws 1956, § 34-7-1. That statute, in pertinent part, provides that when one claiming title to real estate "shall have been for the space of ten (10) years in the uninterrupted, quiet, peaceful and actual seisin and possession of any lands, tenements or hereditaments for and during the said time, claiming the same as his, her or their proper, sole and rightful estate in fee simple * * *" he will be held thereby to have acquired title to that land. The burden, therefore, is on the respondents to prove that they have for a period of ten years been in the uninterrupted, quiet, peaceful and actual seisin of the land in question. Parrillo v. Riccitelli, 84 R.I. 276, 279, 123 A.2d 248.
*530 In this respect the respondent husband testified that when he took possession of the house on lot 46 in the spring of 1948 he began immediately to develop a lawn around it. He testified that to this end he had graded the lot and had spread topsoil and grass seed thereon, including in the area with which he so dealt that portion of lot 69 extending to the easterly line of parcel "C." He further testified that he had top-dressed, fertilized, mowed, and otherwise maintained the resultant lawn continuously from the spring of 1948 to the time of the hearing. According to his further testimony, he enclosed the disputed area, parcel "C," in the summer of 1950 by planting a hedge of flowering shrubs along the easterly line thereof.
The trial justice in his decision refers to the above-noted testimony, stating in part: "The Court does not feel that his evidence of date of starting to plant this area into lawn is reliable, but that it is more credible that he seeded it after he made some kind of physical boundary." It is clear from this language that he either disregarded or rejected the respondent husband's testimony as to the time when he began to exercise dominion over the parcel of land in dispute and concluded that such acts of dominion as were involved in preparing and maintaining the lawn began after the hedge was planted in the summer of 1950. On that basis he concluded that respondents had not been in continuous possession of the parcel for the ten-year period required by the statute.
The respondent husband contends that the testimony given by him as to the time when he began to exercise dominion over the parcel in dispute was undisputed and urges that, therefore, under our long-established rule we should disregard the inferences drawn therefrom by the trial justice and draw from the undisputed testimony a conclusion other than that of the trial justice. Pearson v. Bozyan, 86 R.I. 311, 322, 134 A.2d 387, 392. We do not perceive that this is a case for an application of our rule that we will not be bound by inferences drawn from undisputed testimony by a trial justice but will ourselves in appropriate circumstances draw such other inference therefrom as may be reasonable. We are not confronted here with an inference drawn by a trial justice from undisputed evidence but with his disregard or rejection of positive direct testimony as to the date upon which the respondent husband began to exercise dominion over the parcel of land in dispute. We have scrutinized the transcript closely and have found nothing therein in the way of other positive testimony that contradicts such testimony.
It is the well-settled law in this state that a trier of facts must accept completely uncontradicted and unimpeached testimony as probative of the fact it was adduced to prove. In the case of Gorman v. Hand Brewing Co., 28 R.I. 180, 66 A. 209, this court accepted the proposition that the positive testimony of a witness that remained uncontradicted and unimpeached could not be disregarded by the trial justice but must control the decision. However, the court made it clear that such testimony did not bind a trier of the facts merely because it was not contradicted by direct testimony. Such testimony may be impeached by improbability or contradiction inherent within it. It may also be impeached, the court took care to note, by the witness himself and the manner in which he testified. Concerning this the court stated at page 183 of 28 R.I., at page 211 of 66 A.: "Among the advantages that the jury always has over the court which is asked to review its finding is the opportunity given to weigh witnesses as well as their testimony." Clearly, a justice of the superior court sitting as a fact trier may impeach testimony otherwise uncontradicted and unimpeached on the basis of the observations which he made of the witness and the manner in which he testified.
This court has repeatedly recognized the rule concerning the binding effect of testimony that is uncontradicted and unimpeached. In Walsh-Kaiser Co. v. Della Morte, 76 R.I. 325, at page 330, 69 A.2d 689, *531 at page 691, reiterating the rule that such testimony may be impeached by inherent improbability, we stated at | {
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[Cite as O'Brien v. Jirles-Clark, 2015-Ohio-3365.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Ron O'Brien, Prosecuting Attorney, :
Plaintiff-Appellee, :
No. 15AP-34
v. : (C.P.C. No. 14CV-8313)
Colin Jirles-Clark, : (ACCELERATED CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on August 20, 2015
Ron O'Brien, Prosecuting Attorney, and Scott J. Gaugler, for
appellee.
Colin Jirles-Clark, pro se.
APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Defendant-appellant, Colin Jirles-Clark, appeals from a judgment of the
Franklin County Court of Common Pleas granting judgment by default in favor of
plaintiff-appellee, Ron O'Brien, Franklin County Prosecutor. For the reasons that follow,
we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On August 11, 2014, appellee filed a complaint seeking a preliminary and
permanent injunction requiring appellant to immediately vacate his residence at 4999
Kingshill Drive, Apt. 115, Columbus, Ohio, due to his non-compliance with the residency
restrictions pertaining to sexually oriented offenders. R.C. 2950.034. In the complaint,
appellee alleges the following: appellant has been convicted or pleaded guilty to
No. 15AP-34 2
importuning in violation of R.C. 2907.07 and disseminating matter harmful to juveniles
in violation of R.C. 2907.31; either of the offenses for which appellant was convicted or
pleaded guilty is a non-exempt sexually oriented offense or a child-victim oriented
offense; appellant now resides at 4999 Kingshill Drive, Apt. 115, Columbus, Ohio; and
appellant's current address is within 1000 feet of Focus Learning of Northern Columbus.
On August 13, 2014, the clerk attempted service of summons and complaint on appellant
by certified mail at 4999 Kingshill Drive, Apt. 115, Columbus, Ohio. On September 3,
2014, certified mail service was returned "unclaimed." On October 15, 2014, appellee
instructed the clerk to make service on appellant by ordinary mail at the same address.
On October 16, 2014, the clerk entered the certificate of mailing on the record.
{¶ 3} Appellant did not answer the complaint. On December 11, 2014, appellee
filed a motion for default judgment pursuant to Civ.R. 55(A). Appellant did not respond
to the motion. On December 18, 2014, the trial court granted the motion for default
judgment and issued an order enjoining appellant "from maintaining a residence at 4999
Kingshill Drive, Apt. 115, * * * Columbus, Franklin County Ohio." On January 14, 2015,
the Franklin County Sheriff personally served appellant with the court's judgment entry.
{¶ 4} On January 16, 2015, appellant, pro se, filed a notice of appeal to this court
from the judgment of the trial court.1
II. ASSIGNMENT OF ERROR
{¶ 5} Appellant sets forth the following assignment of error:
The Civil Division rule for motion of default judgment in case
no. 14 CV 8313. The ruling was based on Rev. Code
2950.01(A).
III. STANDARD OF REVIEW
{¶ 6} An appellate court employs an abuse of discretion standard in reviewing a
trial court's decision to grant a motion for default judgment. See, e.g., Miranda v.
Saratoga Diagnostics, 8th Dist. No. 97591, 2012-Ohio-2633; Dye v. Smith, 189 Ohio
App.3d 116, 2010-Ohio-3539 (4th Dist.), citing Ramsey v. Rutherford, 4th Dist. No.
1 On January 21, 2015, the trial court determined appellant's January 16, 2015 "[m]otion to appeal under
civil rule 60B" to be moot stating that appellant's "appeal and motion relate to the same judgment and any
action taken by this court would be inconsistent with the Appellate Court's jurisdiction." See Howard v.
Catholic Social Serv. of Cuyahoga Cty., Inc., 70 Ohio St.3d 141 (1994).
No. 15AP-34 3
09CA3094, 2009-Ohio-5146, ¶ 10. An abuse of discretion is more than an error of law or
judgment but, rather, it is a finding that the court's attitude is unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
IV. LEGAL ANALYSIS
{¶ 7} R.C. 2950.034 provides, in relevant part, as follows:
(A) No person who has been convicted of, is convicted of, has
pleaded guilty to, or pleads guilty to a sexually oriented
offense or a child-victim oriented offense shall establish a
residence or occupy residential premises within one thousand
feet of any school premises or preschool or child day-care
center premises.
(B) If a person to whom division (A) of this section applies
violates division (A)[,] * * * the prosecuting attorney * * * that
has jurisdiction over the place at which the person establishes
the residence * * * has a cause of action for injunctive relief
against the person.
{¶ 8} Civ.R. 55(A) provides, in relevant part, as follows:
When a party against whom a judgment for affirmative relief
is sought has failed to plead or otherwise defend as provided
by these rules, the party entitled to a judgment by default shall
apply in writing or orally to the court therefore.
{¶ 9} Appellant's assignment of error alleges that the trial court erred by granting
a default judgment to appellee. We disagree.
{¶ 10} Civ.R. 4.6(D) provides, in relevant part, as follows:
If a United States certified * * * mail envelope attempting
service within * * * the state is returned with an endorsement
stating that the envelope was unclaimed, the clerk shall
forthwith notify the attorney of record * * * and enter the fact
and method of notification on the appearance docket. If the
attorney, or serving party, after notification by the clerk, files
with the clerk a written request for ordinary mail service, the
clerk shall send by United States ordinary mail a copy of the
summons and complaint or other document to be served to
the defendant at the address set forth in the caption, or at the
address set forth in written instructions furnished to the clerk.
The mailing shall be evidenced by a certificate of mailing
which shall be completed and filed by the clerk. Answer day
shall be twenty-eight days after the date of mailing as
No. 15AP-34 4
evidenced by the certificate of mailing. The clerk shall
endorse this answer date upon the summons which is sent by
ordinary mail. Service shall be deemed complete when the
fact of mailing is entered of record, provided that the
ordinary mail envelope is not returned by the postal
authorities with an endorsement showing failure of delivery.
If the ordinary mail envelope is returned undelivered, the
clerk shall forthwith notify the attorney, or serving party.
(Emphasis added.)
{¶ 11} The record in this case establishes that appellee instructed the clerk to serve
appellant by ordinary mail at the address listed on the complaint after certified mail
service had been returned "unclaimed." Appellee obtained service on appellant by
ordinary mail on October 16, 2014, when the clerk entered the fact of mailing in the
record. Appellant subsequently failed to plead or otherwise defend as provided by the
Ohio Rules of Civil Procedure.
{¶ 12} Appellee filed a motion for default judgment on December 11, 2014.
Although service of the motion on appellant was not required under Civ.R. 55(A) because
appellant had not appeared in the action, we note that appellee served the motion on
appellant by ordinary mail on that date of filing.2 On December 18, 2014, the trial court
granted appellee's motion for default judgment and issued an order, pursuant to R.C.
2950.034, permanently enjoining appellant "from maintaining a residence at 4999
Kingshill Drive, Apt. 115, * * * Columbus, Franklin County Ohio."
{¶ 13} Based on the undisputed facts in the record, we find that appellee was
entitled to a judgment by default against appellant pursuant to Civ.R. 55(A) and R.C.
2950.034. Although appellant now claims that he had a meritorious defense to the
| {
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USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 96-2124
UNITED STATES,
Appellee,
v.
OMAR GREENE,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
___________________
____________________
Before
Torruella, Chief Judge,
___________
Stahl and Lynch, Circuit Judges.
______________
____________________
Diana L. Maldonado on brief for appellant.
__________________
Donald K. Stern, United States Attorney, and Christopher F.
_________________ ______________
Bator, Assistant United States Attorney, on brief for appellee.
_____
____________________
October 14, 1997
____________________
Per Curiam. Pursuant to Fed. R. Crim. P. 11(a)(2),
___________
appellant Omar Greene entered a conditional guilty plea to
the charge of being a felon in possession of a firearm. See
___
18 U.S.C. 922(g)(1). He now appeals the denial of his pre-
plea motion to suppress. For the reasons discussed below, we
affirm the order denying the motion to suppress and
appellant's conviction.
I.
The following facts are undisputed. On the evening of
July 10, 1994, Boston police officers Charles Byrne, Michael
Linsky, and James Freeman, members of the Anti-Gang Violence
Unit, were together in a police vehicle in Roxbury. At
approximately 10:50 p.m., a taxicab sped by them and went
down Blue Hill Avenue. The officers pursued the cab and
activated their lights and siren once they had caught up to
it. The cab pulled over near an intersection that was about
3/4 of a mile from the place the police had first seen it.
Officers Linsky and Freeman then approached the driver's side
of the cab while officer Byrne proceeded to its right rear
passenger's side. Appellant was the sole passenger seated in
the rear of the cab. Officer Byrne saw appellant turn and
look at the approaching officers.
When officer Byrne arrived at the open passenger's
window, he heard appellant exclaim, "What did I do?"
Appellant appeared nervous. Byrne responded, "Who said you
-2-
did anything?" and shined his flashlight in at appellant.
Byrne then observed a large bulge in appellant's right pants
pocket. Although he did not know appellant and indeed had
not even heard of him before that day, officer Byrne thought
that the bulge might be a gun and decided that it was
necessary to check to preserve the officers' safety. Byrne
opened the door of the cab, put his hand on the bulge, and
felt what he thought was a firearm. He announced this to his
colleagues and held appellant's arms while officer Freeman
removed from appellant's pocket a fully loaded semi-automatic
handgun with one round in the chamber and seven rounds in the
clip.1 During the course of these events, appellant made no
1
movements, save perhaps for turning his head when officer
Byrne initially shined his light on him. Appellant was
arrested and charged with two state firearm offenses.2
2
Ultimately, the state charges were dismissed and appellant
was charged with violating 18 U.S.C. 922(g).
Relying on the transcript of officer Byrne's testimony
at his pretrial detention hearing, appellant moved to
suppress the gun and ammunition on the ground that the police
____________________
1The gun bore an obliterated serial number and was later
1
found to be stolen. The record does not suggest that
appellant was the thief.
2The cab driver was given a verbal warning and sent on his
2
way.
-3-
lacked reasonable suspicion to stop and search him.3 After
3
the government filed an opposition, the district court
entered a one-sentence order that denied the appellant's
motion without stating its reasons. Ten months later, the
appellant entered a conditional guilty plea and was sentenced
to 30-months' imprisonment and two years of supervised
release. He now challenges the denial of his motion to
suppress.
II.
Ordinarily, in reviewing the denial of a motion to
suppress, we scan the district court's findings of fact for
clear error, while affording plenary review to its
conclusions of law, including determinations of probable
cause and reasonable suspicion. See, e.g., Ornelas v. United
___ ____ _______ ______
States, 116 S. Ct. 1657, 1659-63 (1996); United States v.
______ _____________
Young, 105 F.3d 1, 5 (1st Cir. 1997). Our review here is
_____
somewhat hampered because the district court's order denying
appellant's motion to suppress gave no reasons.
Nevertheless, an "order denying a motion to suppress is to be
upheld if any reasonable view of the evidence supports it."
United States v. Lamela, 942 F.2d 100, 102 (1st Cir.
______________ ______
1991)(internal punctuation and citations omitted). As the
____________________
3The motion to suppress also sought to exclude an
3
unspecified amount of marijuana which was found on appellant
after he was arrested. Appellant has not been charged with a
criminal offense based on this conduct.
-4-
essential facts are undisputed and the district court's legal
conclusions are subject to de novo review, we may simply
__ ____
decide whether the stop and search of appellant were valid.
Cf. United States v. Sepulveda, 102 F.3d 1313, 1315 (1st Cir.
___ _____________ _________
1996)(undertaking similar inquiry where underpinnings of
denial of motion to suppress were somewhat unclear).
A reviewing court evaluating the reasonableness of an
investigative stop must perform a two-step inquiry. First,
the court must determine whether the police action was
justified at its inception. Second, the court must determine
whether the action taken was reasonably related in scope to
the circumstances which justified the intrusion. See, e.g.,
___ ____
United States v. Young, 105 F.3d 1, 6 (1st Cir. 1997); United
_____________ _____ ______
States v. Kimball, 25 F.3d 1, 6 (1st Cir. 1994). In
______ _______
assessing the reasonableness of a police officer's actions, a
court | {
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97 Wis.2d 679 (1980)
294 N.W.2d 547
STATE of Wisconsin, Plaintiff-Respondent,
v.
Charles K. LEE, Defendant-Appellant.
No. 78-449-CR.
Court of Appeals of Wisconsin.
Argued January 24, 1980.
Decided May 27, 1980.
For the defendant-appellant, there was a brief and oral argument by William D. Whitnall of Racine.
For the plaintiff-respondent, there was a brief submitted by Bronson C. La Follette, attorney general, and *680 David J. Becker, assistant attorney general. Oral argument by David J. Becker.
Before Voss, P.J., Brown and Bode, J.J.
BROWN, J.
In this case, police had an arrest warrant for Oliver Scott Johnson but arrested Charles K. Lee by mistake, thinking him to be Johnson. Subsequent to Lee's arrest, a house search was conducted producing a suitcase full of marijuana. Lee was charged and convicted of possession of marijuana with intent to sell. He claims that his arrest is invalid because there were no reasonable, articulable grounds for police to believe he was the intended arrestee. We agree and reverse.
Police were looking for Oliver Scott Johnson because he allegedly stole an automobile. Following the issuance of an arrest warrant, police received information that Johnson might be found at his sister's apartment. The only other information police knew about Johnson was that he was a young white man.
Police went to the apartment of Johnson's sister and knocked on the door. A young white man came to the door wearing only a pair of pants. The police asked him if he was Oliver Scott Johnson, and he said he was not. Although there is some dispute as to what first name was given to the police, it is clear that he told police his last name was Lee. The police asked for identification, but Lee said that he had none on his person at the time. Lee did say that Ann Johnson, who was Oliver Johnson's sister, could verify that he was Lee and not Oliver Johnson. The police asked to use the telephone so that they could confirm Lee's story, but Lee told them the apartment had no telephone, and they would have to telephone elsewhere.
One of the officers radioed a squad car to stop by Mrs. Johnson's place of employment and to determine if she knew who was in her apartment. The squad car then *681 contacted Ann Johnson and confirmed that the person in her apartment was Lee and not Oliver Scott Johnson. In the meantime, however, the police officers had decided to arrest Lee without first waiting for the confirmation from the squad car. Once Lee was put under arrest, the police officers told Lee that he would have to change clothes before coming with them to the police department. The police then followed Lee into the apartment in order to keep watch over him while he changed clothes. Near the kitchen, in plain view, one of the officers observed marijuana seeds and stems. He then ordered Lee to sit in a chair while a "sweep search" of the apartment was conducted. The sweep search produced a suitcase full of marijuana bags. Although the validity of the sweep search is also questioned on this appeal, we need not reach it.
[1]
Both the state and Lee urge us to adopt Sanders v. United States, 339 A.2d 373 (D.C. App. 1975). The Sanders case deals with situations where contraband is taken from an individual other than the one against whom the warrant is outstanding. Finding no previous Wisconsin cases dealing with the subject and believing that Sanders is good law, we adopt it. The teaching of Sanders is that evidence is properly admissible against the person mistakenly arrested as long as: (1) the arresting officer acts in good faith, and (2) has reasonable, articulable grounds to believe that the suspect is the intended arrestee. Sanders, supra, at 379. The Sanders court went on to explain:
Should doubt as to the correct identity of the subject of warrant arise, the arresting officer obviously should make immediate reasonable efforts to confirm or deny the applicability of the warrant to the detained individual [sic]. If, after such reasonable efforts, the officer reasonably and in good faith believes that the suspect is the one against whom the warrant is outstanding, a protective *682 frisk pursuant to the arrest of that person is not in contravention of the Fourth Amendment. Cf. Patterson v. United States, D.C. App. 301 A.2d 67 (1973); United States v. McCray, 468 F.2d 446 (10th Cir. 1972). [Footnote omitted.] Sanders, supra, at 379.[1]
The Sanders rationale is an outgrowth of Hill v. California, 401 U.S. 797 (1971), and its progeny. In Hill, two men who were arrested for the possession of narcotics were found also to have the fruits of a robbery. The two men named Hill as a fellow participant and said additional stolen property was in Hill's possession at his apartment. Officers proceeded to Hill's apartment to make a warrantless arrest and were met by a man named Miller who fit Hill's description. They arrested Miller, believing him to be Hill, and searched the apartment. They found the stolen property they were looking for. Miller was released two days later. Hill contended that the search was based on an invalid arrest of Miller and that the evidence seized should be inadmissible. The Supreme Court disagreed, finding:
[n]o reason to disturb either the findings of the California courts that the police had probable cause to arrest Hill and that the arresting officers had a reasonable, good-faith belief that the arrestee Miller was in fact Hill, or the conclusion that "[w]hen the police have probable cause to arrest one party, and when they reasonably *683 mistake a second party for the first party, then the arrest of the second party is a valid arrest." [Citations omitted.] Hill, supra, at 802.
The court in Hill paid particular attention to the similarity of descriptions between Hill and Miller. The court noted:
At the preliminary hearing and trial, the only disparities in description established were that Miller was two inches taller and 10 pounds heavier than Hill. Hill, supra, at 803 n. 6.
The court in Hill, therefore, found that the police had reasonable grounds to believe that Miller was in fact Hill. Therefore, the resultant search was justifiable. The Hill case, of course, was limited to the effect of Miller's arrest on Hill, the intended arrestee. The question was not what evidence would have been admissible against Miller, the person mistakenly arrested.
The Sanders case addressed the issue not addressed in Hill. In Sanders, the police stopped a suspicious looking person on the street and inquired as to the person's identification. The person said that his name was "Sanders." The police then let him go but asked for information on Sanders anyway. Headquarters came back with a report that this Sanders was really a man named Saunders and that he was wanted in connection with a crime in Arlington County, Virginia. The police then hailed Sanders again and asked him if he had ever been in the Arlington County jail. Sanders replied that he had been, and he was subsequently arrested. A gun was found on his person, and he was arrested for possession of that firearm. The court found that the police had reasonable articulable grounds to believe that the suspect was the intended arrestee even though it later turned out that the Sanders who was arrested was different from the Saunders who had fled from Arlington County. The names *684 were nearly identical and the descriptions were identical. Sanders, supra, at 378 n. 4.
Discussions relating to what constitutes reasonable grounds to believe that the suspect is the intended arrestee have been articulated in several cases besides Hill and Sanders. In United States ex rel. Kirby v. Sturges, 510 F.2d 397 (7th Cir. 1975), the arrest and ultimate search of the wrong man was upheld because the defendant looked just like a fugitive's picture which was carried in a police bulletin. The physical description also matched. This similarity justified officers in a stop and request for identification. The identification process, conducted in plain view of the officers, allowed the officers to observe stolen traveler's checks in the person's possession. The conviction was upheld.
In United States v. Riggs, 347 F. Supp. 1098 (E.D.N.Y. 1972), police were instructed to watch for a "Cynthia Joyce Griggs," a known drug dealer, who was supposed to be on an incoming flight from Detroit to New York for the purpose of making a buy. Cynthia Joyce Griggs, a black woman, was traveling under the name of "P. Griggs" and was wearing a brilliant orange coat, large gold hoop earrings and carried no luggage. The police observed "P. Griggs" arrive in New York and leave the airport in a cab. Later in the day, a black woman, wearing a brilliant orange coat, large gold hoop earrings, carrying no luggage and otherwise answering the same description as "P. Griggs" prepared to depart on a one-way flight to Detroit under the name of "Miss F. Riggs." Michigan State Police then asked the New York officials to arrest "Miss F. Riggs" believing her to be the one and the same "P. Griggs." The officials arrested her, searched her and found narcotics. "Miss F. Riggs" was in reality Fairh Riggs and not Cynthia Griggs. The court found the police had reasonable grounds to believe the suspect was the intended arrestee.
*685 In United States v. Rosario, 543 F.2d 6 (2nd Cir. 1976), on the other hand, the Court refused to uphold an arrest of a suspect mistakenly believed to be the | {
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473 F.Supp. 791 (1979)
SCM CORPORATION, Plaintiff,
v.
UNITED STATES (Brother International Corporation, Party-In-Interest), Defendant.
C.R.D. 79-11; Court No. 77-4-00553.
United States Customs Court.
June 11, 1979.
*792 *793 Frederick L. Ikenson, Washington, D. C., for plaintiff.
Barbara Allen Babcock, Asst. Atty. Gen., Washington, D. C. (David M. Cohen, Washington, D. C., Branch Director, Federal Programs Branch, Sheila N. Ziff, New York City, trial atty.), for defendant.
Tanaka, Walders & Ritger (H. William Tanaka, Lawrence R. Walders and Wesley K. Caine, Washington, D. C., of counsel), for party-in-interest.
RE, Chief Judge:
This is an American manufacturer's action brought by SCM Corporation [SCM], a domestic typewriter manufacturer, under the provisions of 19 U.S.C. § 1516(c). Plaintiff, SCM, seeks to review the failure of the Secretary of the Treasury to assess dumping duties on certain Japanese typewriters under the terms of the Antidumping Act of 1921, as amended.
For dumping duties to be assessed, it is necessary that the Secretary of the Treasury determine that a class or kind of imported merchandise is being, or is likely to be, sold in the United States or elsewhere at less then fair value. In addition, the International Trade Commission must determine that an industry in this country is being, or is likely to be, injured, or is prevented from being established by reason of the importation of such merchandise at less than fair value. It is only when both of these determinations are made in the affirmative, i. e., less than fair value and injury, that dumping duties may be assessed. Thus, if the Secretary finds no sales at less than fair value, or if the International Trade Commission makes a negative injury determination, no dumping finding can be published and no dumping duties can be assessed. 19 U.S.C. § 160 et seq. ("Antidumping Act").
The history and underlying issues of this litigation are discussed in SCM Corporation v. United States (Brother International Corporation, Party-in-Interest), 450 F.Supp. 1178, 80 Cust.Ct. 226 (1978), in which this court decided that it had jurisdiction to *794 review the negative injury determination of the International Trade Commission.
During the course of the litigation, plaintiff, by interrogatories, sought from the defendant, among other things, all documents and things in the files of the International Trade Commission and each Commissioner in investigation number AA1921-145. In response, defendant categorized and identified all of the documents and things that it claimed were in the files of the Commission or Commissioners at the time of the negative injury determination.
Defendant did not produce the documents requested, and plaintiff sought an order compelling discovery. Defendant filed a cross-motion for a protective order, and moved to be relieved from responding to plaintiff's interrogatories and motion to produce.
The court entered an order requiring that the Secretary of the International Trade Commission prepare and transmit to the Clerk of the United States Customs Court, the following:
(1) A certified copy of the transcript of proceedings, and all exhibits introduced before the Commission in its investigation numbered AA1921-145;
(2) Certified copies of all written submissions, questionnaires, reports and other documents which relate to investigation AA1921-145;
(3) All other things in the files of the Commission relating to that investigation.
The order further provided that the denial of defendant's cross-motion for a protective order was without prejudice, and was subject to renewal for the documents or things that were received by the Commission on a confidential basis, or that were otherwise privileged. SCM Corporation v. United States (Brother International Corporation, Party-in-Interest), 81 Cust.Ct. 159, C.R.D. 78-13 (1978).
In compliance with that order, copies of all documents, confidential and nonconfidential, were transmitted to the court. Based upon a claim of executive privilege asserted by the Honorable Joseph O. Parker, Chairman of the International Trade Commission, the defendant now moves for a protective order as to nine (9) documents. A formal affidavit executed by Chairman Parker was submitted and attached to defendant's brief.
When defendant, in response to plaintiff's discovery request, identified every document and thing in the files, it identified only one of the nine documents now claimed to be privileged, i. e., item No. 44, the "pros and cons" statement. Defendant contends that it has validly asserted privilege not only as to document No. 44, but also as to the other eight documents not previously identified.
The nine disputed documents listed by the defendant are described as follows:
No. 44 An undated four-page "pros and cons" statement prepared by staff for the use of the Commissioners in arriving at the Commission's determination with regard to Portable Electric Typewriters from Japan. This statement sets forth suggested criteria to be used as well as possible reasons for and against an affirmative injury determination. The document contains staff advice and alternative views and recommendations as to injury or likelihood of injury to the domestic industry;
No. 56 Twelve-page, hand-written draft of Document 44;
No. 58 An undated two-page draft opinion entitled "Statement of Reasons for Determination of Commissioner Minchew to Abstain" prepared by staff for the exclusive consideration of, and use by, Commissioner Minchew in arriving at his statement of reasons. The document contains advice, conclusions, deliberations, opinions, and recommendations;
No. 59 An undated one-page draft opinion entitled "Statement of Reasons for Abstension (sic) of Vice Chairman Minchew" prepared by staff for the exclusive consideration of, and use by, Commissioner Minchew in arriving at his statement of reasons. *795 The document contains advice, conclusions, deliberations, opinions, and recommendations;
No. 62 Four-page draft opinion, dated 6/16/75, entitled "Statement of Reasons for Negative Determination of Chairman Leonard, Commissioner Bedell," prepared by staff for the consideration of, and use by, the Commissioners in arriving at their statement of reasons. The document contains staff advice, conclusions, deliberations, opinions, and recommendations;
No. 63 Three pages of hand-written notes used as a basis for the development of Document 44. Like Documents 44 and 56, this contains staff advice and alternative views and recommendations as to injury or likelihood of injury to the domestic industry;
No. 68 An undated, four-page, second draft opinion entitled "Statement of Reasons for Negative Determination of Chairman Leonard and Commissioners Bedell and Parker" prepared by staff for the consideration of, and use by, the Commissioners in arriving at their statement of reasons, with hand-written modification made by, or at the direction, of individual Commissioners. The document contains staff advice, conclusions, deliberations, opinions, and recommendations, as well as tangible evidence of Commissioners' thought processes (in the case of hand-written modifications);
No. 77 A five-page draft opinion, dated 6/17/75, entitled "Statement of Reasons for the Affirmative Determination of Commissioner Ablondi" prepared by staff for the exclusive consideration of, and use by, Commissioner Ablondi in arriving at his statement of reasons. The document contains advice, conclusions, deliberations, opinions and recommendations;
No. 78 Five-page untitled draft opinion, dated 6/16/75, that supports an affirmative determination of injury in Portable Electric Typewriters from Japan. This document was prepared by staff for the exclusive consideration of, and use by, Commissioner Ablondi in arriving at his statement of reasons. This document contains advice, conclusions, deliberations, opinions, and recommendations.
Plaintiff's opposition to the defendant's motion for a protective order is based upon its contention that the claim of executive privilege has been waived by defendant's conduct, and, that, in any event, it has not been properly invoked. Plaintiff also maintains that the privilege against interagency advisory opinions is not absolute but qualified.
Plaintiff states that, in response to its discovery request, defendant identified only one of the nine documents now claimed to be privileged, item No. 44, the "pros and cons" statement. At that time, this document was not produced by the defendant on the ground that it was outside the scope of judicial review in these proceedings. Consequently, it is plaintiff's contention that, since the defendant based its refusal to produce item No. 44 solely upon the scope of judicial review, the defendant has waived its claim of privilege.
The plaintiff also contends that, when asked to identify and produce, the defendant's response did not identify the eight additional documents produced after the court entered its order requiring production of all documents and things in the files of the Commission and Commissioners. Plaintiff argues that the defendant has offered no explanation for its failure to produce except that the eight documents were recently located. Also as to these documents, therefore, plaintiff contends that the defendant's conduct is tantamount to a waiver of its claim of executive privilege.
Plaintiff submits an additional reason to deny the defendant's motion for a protective order. It asserts that the claim of executive privilege must be made by the "head" of the department or agency who must personally review the matter to determine *796 whether the privilege should be invoked, and that the Chairman of the International Trade Commission is not the appropriate official to invoke the privilege for that agency.
Finally, plaintiff urges that the privilege which attaches to interagency advisory communications does not apply "to purely factual communications within or between | {
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Filed 5/23/18; Certified for Publication 6/14/18 (order attached)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
VINCENT KROLIKOWSKI, D071119
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2015-00006255-
CU-OE-CTL)
SAN DIEGO CITY EMPLOYEES'
RETIREMENT SYSTEM,
Defendant and Respondent.
CONNIE VAN PUTTEN,
Plaintiff and Appellant,
(Super. Ct. No. 37-2015-00021007-
v. CU-OE-CTL)
SAN DIEGO CITY EMPLOYEES'
RETIREMENT SYSTEM,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County, Joel M.
Pressman, Judge. Affirmed.
Law Office of Michael A. Conger and Michael Conger for Plaintiffs and
Appellants.
Noonan Lance Boyer & Banach, David J. Noonan and Genevieve M. Ruch; The
Law Office of Steven W. Sanchez and Steven W. Sanchez for Defendant and
Respondent.
Appellants Vincent Krolikowski and Connie Van Putten (collectively appellants)
are former employees of the City of San Diego (the City) and members of the San Diego
City Employees' Retirement System (SDCERS) who receive monthly pension payments
from SDCERS, the administrator of the City's pension plan. Krolikowski and Van Putten
separately filed lawsuits against SDCERS after SDCERS discovered an error in
calculating their monthly pension benefits and took action to recoup the past
overpayments. In their now-consolidated lawsuits, Krolikowski and Van Putten assert
causes of action for conversion, breach of fiduciary duty, writ of mandate (Code Civ.
Proc., § 1085) and declaratory relief, all of which challenge SDCERS's ability to
implement a recoupment procedure to collect the overpayments from Krolikowski and
Van Putten. After a bench trial, the trial court entered judgment in favor of SDCERS.
Krolikowski and Van Putten contend that the trial court erred in (1) sustaining
SDCERS's demurrer to the conversion and breach of fiduciary duty causes of action; and
(2) finding in favor of SDCERS after conducting a bench trial on the remaining causes of
action for writ of mandate and declaratory relief. As we will explain, we conclude that
appellants' arguments are without merit, and we accordingly affirm the judgment.
2
I.
FACTUAL AND PROCEDURAL BACKGROUND
Van Putten worked for the City's police department from 1965 to 1988, having
reached the rank of police lieutenant. Van Putten then worked for the Union City police
department, and deferred her retirement from the City until she retired from the Union
City police department in December 2000, at which time she began receiving monthly
pension payments from SDCERS.1
1 Our Supreme Court has summarized the role of SDCERS in administering the
City's pension system: "San Diego is a charter city. It maintains a pension plan for its
employees, the San Diego City Employees' Retirement System (SDCERS). (San Diego
City Charter, art. IX, § 141; San Diego Mun. Code, § 24.0101.) SDCERS is a defined
benefit plan in which benefits are based upon salary, length of service, and age. (San
Diego Mun. Code, §§ 24.0402-24.0405.) The plan is funded by contributions from both
the City and its employees. (San Diego City Charter, art. IX, § 143; San Diego Mun.
Code, § 24.0402.) . . . [¶] The pension fund is overseen by a 13-member board of
administration (SDCERS Board or Board). (San Diego City Charter, art. IX, § 144.)
Although established by the City, the Board is a separate entity. (Ibid.; Bianchi v. City of
San Diego (1989) 214 Cal.App.3d 563, 571.) The SDCERS Board is a fiduciary charged
with administering the City's pension fund in a fashion that preserves its long-term
solvency; it must ensure that through actuarially sound contribution rates and prudent
investment, principal is conserved, income is generated, and the fund is able to meet its
ongoing disbursement obligations. (Cal. Const., art. XVI, § 17; San Diego City Charter,
art. IX, § 144.) Consistent with that central mission, the SDCERS Board has a range of
ancillary obligations, including but not limited to providing for actuarial services,
determining member eligibility for and ensuring receipt of benefits, and minimizing
employer contributions. (Cal. Const., art. XVI, § 17, subds. (b), (e); San Diego City
Charter, art. IX, §§ 142, 144; San Diego Mun. Code, § 24.0901.) To carry out these
duties, the Board is granted the power to make such rules and regulations as it deems
necessary. (San Diego City Charter, art. IX, § 144; San Diego Mun. Code, §§ 24.0401,
24.0901; see generally Bianchi, at p. 571; Grimm v. City of San Diego (1979) 94
Cal.App.3d 33, 39-40.)" (Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1063-1064
(Lexin).)
3
Krolikowski worked for the City's police department from 1972 to 1990, having
reached the rank of detective. Krolikowski then worked for the County of San Diego as
an investigator for the District Attorney's office, and deferred his retirement from the City
until he retired from the County of San Diego in 2006, at which time he began receiving
monthly pension payments from SDCERS.
As Krolikowski and Van Putten testified, before they retired they both consulted
with SDCERS about the amount of the pension benefit they would receive from their
employment with the City, and they used that information in deciding when to retire.
In 2013, SDCERS performed an audit of the pension benefits that it was paying to
Krolikowski and Van Putten, and it discovered that it made an error in calculating the
monthly payments that Krolikowski and Van Putten had been receiving since they
retired. With respect to both Van Putten and Krolikowski, SDCERS had used the wrong
retirement factor, in that it did not use the retirement factor that corresponded with the
date that Van Putten and Krolikowski left their employment with the City. As to Van
Putten, SDCERS also discovered that it had used the wrong annuity factor.
SDCERS determined that, without accrued interest, the overpayments were
$18,739.88 for Krolikowski and $17,049.48 for Van Putten.2 If SDCERS had correctly
calculated the pension benefits when Krolikowski and Van Putten retired, Van Putten
2 We note that when SDCERS first contacted Krolikowski and Van Putten about the
errors, SDCERS presented them with higher figures for the amount of the overpayments.
Those figures, however, were mistakenly based on erroneous assumptions about
Krolikowski and Van Putten's participation in the social security program. SDCERS
subsequently corrected those errors, which resulted in the overpayment figures we have
set forth herein.
4
would have received approximately $295 per month less at the time she started to collect
her pension in 2001, and Krolikowski would have received $191.74 less per month at the
time he started to collect his pension in 2006.
In 2013, after discovering the errors, SDCERS contacted Van Putten and
Krolikowski to explain that they would be required to pay back the overpayments.3
SDCERS also explained that, going forward, Van Putten's and Krolikowski's monthly
pension benefit would be reduced to reflect the correct calculation of benefits. SDCERS
gave Van Putten and Krolikowski the option of making the repayment of the past
overpayments by either (1) having a specific amount deducted from their monthly
pension payments over time, while incurring interest on the unpaid balance; or
(2) making a lump sum payment to SDCERS, which would stop the accrual of interest on
the amount owed. SDCERS also explained to Van Putten and Krolikowski that they had
the right to file an administrative appeal to dispute the fact that an overpayment occurred
or the amount of the overpayment.
Krolikowski and Van Putten both pursued unsuccessful administrative | {
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639 F.Supp. 126 (1986)
Charlean WIGGINS, Plaintiff,
v.
Margaret HECKLER, Secretary of Health and Human Services, Defendant.
No. 83-388-CIV-5.
United States District Court, E.D. North Carolina, Raleigh Division.
March 14, 1986.
*127 Charles R. Hassell, Jr., Raleigh, N.C., for plaintiff.
Rudolf A. Renfer, Jr., Asst. U.S. Atty., Raleigh, N.C., for defendant.
ORDER
JAMES C. FOX, District Judge.
This matter is before the court on plaintiff's motion for an award of attorney's fees pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d)(1)(B). On February 10, 1986, plaintiff moved for EAJA attorney's fees in the amount of $1,612.50. Defendant has not responded to plaintiff's petition within the time provided by law.
This civil action was filed on April 14, 1983, after defendant administratively denied plaintiff's application for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act, as amended. 42 U.S.C. §§ 405(g) and 1383(c)(3). On June 18, 1984, the court adopted an unopposed recommendation of the Magistrate, and ordered this action remanded to the Secretary for rehearing and a proper determination of whether plaintiff retained sufficient residual functional capacity to engage in an alternative job existing in the national economy. Subsequently, upon remand, plaintiff was administratively awarded benefits.
The EAJA permits an award of attorney's fees to a qualified prevailing party, other than the United States, in civil actions brought by or against the United States "unless the court finds that the position of the United States was substantially justified or that the special circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A).[1] The court has reviewed plaintiff's application for attorney's fees, affidavit of counsel, and memorandum of law, and for the reasons set forth below, the court concludes plaintiff is entitled to attorney's fees under the EAJA.
Ordinarily, the government's position in the district court is substantially justified if the United States Attorney does no more than rely on an "arguably defensible administrative record." Guthrie v. Schweiker, 718 F.2d 104, 108 (4th Cir.1983). The finding that a final decision of the Secretary is not supported by substantial evidence does not equate to a finding that the position in the litigation was not substantially justified. Id.; Bennett v. Schweiker, 543 F.Supp. 897 (D.D.C.1982).
However, the government has the burden of demonstrating substantial justification for its position. Tyler Business Services, Inc. v. NLRB, 695 F.2d 73 (4th Cir. 1982); Alspach v. Director of Internal Revenue, 527 F.Supp. 225, 229 (D.Md.1981). The government must show that the position had a reasonable basis both in law and fact. Smith v. Heckler, 739 F.2d 144, 146 (4th Cir.1984); Cornella v. Schweiker, 728 F.2d 978, 981-82 (8th Cir.1984); Trujillo v. Heckler, 569 F.Supp. 631, 1439 (E.D.N.Y. 1983). It is possible for the administrative record to be so deficient that the government may not reasonably rely on it. Guthrie v. Schweiker, 718 F.2d at 108.
In the case at bar, the government has elected not to respond to plaintiff's motion for an award of fees under the EAJA. Accordingly, the court is unable to find any circumstances that would make such an award unjust. Defendant simply has made no showing of substantial justification and having failed to carry that burden, *128 plaintiffs' motion for attorney's fees under the EAJA is ALLOWED.[2]
In all cases involving an award of fees, the Fourth Circuit has held that the guidelines established in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974), must be followed. Barber v. Kimbrell's Inc., 577 F.2d 216 (4th Cir. 1978), cert. denied, 439 U.S. 934, 99 S.Ct. 329, 58 L.Ed.2d 330 (1978). The utilization of the Johnson factors has been modified by the Supreme Court's recent decisions in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) and Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). The initial step in this evaluation is to determine the number of hours reasonably expended and multiply that number times the customary fee for similar work. Hensley v. Eckerhart, 103 S.Ct. at 1940; Anderson v. Morris, 658 F.2d 246 (4th Cir.1981). In determining a reasonable hourly rate, the court should consider a number of factors, including the experience and skills of the attorney, the quality of the representation, the novelty and complexity of the litigation and the results obtained. Blum v. Stenson, 104 S.Ct. at 1548-49. In addition, the court should consider, to the extent applicable, the remaining Johnson factors. See Redic v. Gary H. Watts Realty Co., 586 F.Supp. 699 (W.D.N.C.1984), rev'd. on other grounds, 762 F.2d 1181 (4th Cir.1985).
In determining the number of hours reasonably expended, the court has reviewed counsel's affidavit and the record in general. Based upon this review, the court concludes counsel reasonably expended 21.50 hours in the conduct of this litigation, the exact amount requested by counsel.
With regard to a proper hourly rate, the court begins its analysis by turning to a recent 1985 North Carolina Bar Association Survey of typical hourly rates charged by attorneys in this state, and finds the survey, as applied to plaintiff's counsel, would result in a fee of $86 per hour.[3] However, since the maximum rate allowed under the EAJA is generally $75 per hour, 28 U.S.C. § 2412(d)(2)(A)(ii), and counsel only requested that rate in his motion, the court will proceed to utilize the relevant Johnson and Barber factors to determine whether $75 per hour is reasonable for this case or should further be adjusted downward.
1. The Novelty and Difficulty of the Questions Raised.
Although the social security framework requires some expertise, this action involved neither novel nor difficult issues.
2. The Skill Required to Properly Perform the Legal Services Rendered.
Application of the social security statutes, regulations, procedures, policies and case law requires a degree of expertise and skill. See Blankenship v. Schweiker, 676 F.2d 116 (4th Cir.1982). However, in this case, counsel's brief was not extremely useful to the court in reviewing the administrative record.
3. The Attorney's Opportunity Costs in Pressing the Instant Litigation.
Although there is some opportunity cost involved with most actions, this action was decided on the record which minimizes this factor.
4. The Customary Fee for Like Work. See supra.
5. The Attorney's Expectations at the Outset of the Litigation.
After losing at the administrative level, the expectation of success, given the scope *129 of review, could not have been high. Nonetheless, this factor is tempered by some deficiencies in the administrative record.
6. The Time Limitations Imposed by the Client or Circumstances.
Nothing in the record reflects severe time limitations resulted in pressured working conditions for counsel.
7. The Amount in Controversy and the Results Obtained.
Counsel was completely successful in obtaining the relief requested, which resulted in a substantial award for plaintiff. Thus, for a disabled individual with little or no income, the beneficial results of the favorable decision in the instant case are obvious.
8. The Experience, Reputation and Ability of the Attorney.
Counsel's work in the case sub judice was competent. However, the court is unaware of counsel's experience in social security cases, since counsel failed to file any background information in his affidavit.
9. The Undesirability of the Case Within the Legal Community in Which the Suit Arose.
To the extent this factor is applicable to social security actions, representation is not undesirable within this community.
10. The Nature and Length of the Professional Relationship Between Attorney and Client.
This is not relevant to this case and thus does not require adjustment of the fee.
11. Attorney's Fee Awards in Similar Cases.
Premised on awards in similar cases, the court finds the rate of $65-$75 per hour to be reasonable and in line with awards in those cases. See, Shumate v. Harris, 544 F.Supp. 779 (W.D.N.C.1982); Ocascio v. Schweiker, 540 F.Supp. 1320 (S.D.N.Y. 1982); Ex parte Duggan, 537 F.Supp. 1198 ( | {
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NO. 07-08-0342-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
OCTOBER 1, 2008
______________________________
ANTOIN DESHON LIVINGSTON, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;
NO. 18,943-B; HON. JOHN B. BOARD, PRESIDING
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
ON MOTION TO DISMISS
Pending before the Court is appellant’s motion to dismiss his appeal. Appellant and
his attorney have both signed the motion. Tex. R. App. P. 42.2(a). No decision of this
Court having been delivered to date, we grant the motion. Accordingly, the appeal is
dismissed. No motion for rehearing will be entertained and our mandate will issue
forthwith.
James T. Campbell
Do not publish. Justice
| {
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425 F.2d 1244
Carl H. WIENBERGv.The UNITED STATES.
No. 161-69.
United States Court of Claims.
May 15, 1970.
Glenn R. Graves, Washington, D. C., attorney of record, for plaintiff.
C. Michael Sheridan, Court of Claims Section, Dept. of Justice, with whom was Asst. Atty. Gen., William D. Ruckelshaus, for defendant.
Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON and NICHOLS, Judges.
ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
COLLINS, Judge.
1
In this action, brought pursuant to the provisions of the Universal Military Training and Service Act, 50 U.S.C.App. §§ 451-473 (1964), plaintiff, Carl H. Wienberg, is seeking to recover back salary wrongfully withheld as the result of the failure of the Internal Revenue Service (IRS) to promote him in absentia while he was in the military service. Both parties have filed motions for summary judgment, contending that there are not material issues of fact and that they are entitled to judgment as a matter of law. We find that the decision of the Board of Appeals and Review (BAR) of the Civil Service Commission holding that plaintiff is not entitled to recover back pay should be accorded finality, and, for reasons to be stated in this opinion, we enter judgment for defendant dismissing plaintiff's petition.
2
On July 8, 1963, plaintiff was hired as an Internal Revenue Agent (GS-7, Step 1) by the Audit Division of the Michigan District of the IRS. Thereafter, plaintiff went through a training program, completing classroom and on-the-job training satisfactorily. On February 17, 1964, he was placed on military leave, but he continued to perform his work until March 2, 1964, when he was released for active military duty. Plaintiff had already been informed in a letter by James R. Pendergraff, Chief, Employee Relations and Placement Section, dated February 11, 1964, that "During your absence for military duty you will be given the same consideration for promotion that you would have received had you remained in your present position, and, if you are selected for any higher grade position, your promotion will be made in absentia." Plaintiff became eligible for promotion to GS-9 on July 8, 1964, but his supervisors neglected to even consider him. Thereupon on January 17, 1966, when plaintiff returned to the IRS from the military, he was reemployed at the grade of GS-7, Step 3. Three months later on April 24, 1966, he was promoted to grade GS-9.
3
In July 1966, plaintiff discussed with one of his supervisors, Edmond T. Strasz, the reasons why he had not been promoted in absentia while in the military service. Mr. Strasz advised plaintiff that inadvertently he had not been considered for promotion in July 1964, but that looking back on plaintiff's performance in the training program, he would not have recommended plaintiff for promotion at that time anyway.
4
As a result, plaintiff filed a formal complaint with the Chief of the Audit Division alleging that he should have been promoted in absentia to GS-9 in July 1964, and further that, had this been done, he would have been eligible for promotion to GS-11 in July 1965. A hearing was held, and it was determined that plaintiff's complaint was without merit since there was no basis for a retroactive promotion. His appeal to the District Director of Internal Revenue was likewise rejected. However, in a further appeal to the Regional Director of the Civil Service Commission, it was decided, on October 9, 1967, without a hearing, that plaintiff should be promoted retroactively to grade GS-9, effective July 1964. The Regional Director felt that, based on the progress plaintiff was making at the time of his entry into the military, he would surely have been promoted had he not gone into the service. The IRS appealed this decision to the BAR, which determined on January 26, 1968, that plaintiff had not established his right to be promoted to GS-9 while on military duty. Thereupon, the decision of the Regional Director was reversed, and plaintiff's claim for back pay was denied. Plaintiff then filed suit in this court on March 21, 1969, urging us to reverse the decision of the BAR and grant him the relief requested, namely, the back pay to which he would be entitled based on retroactive promotions to grade GS-9 in July 1964 and grade GS-11 in July 1965.
5
This action was filed pursuant to certain provisions of the Universal Military Training and Service Act, 50 U.S.C.App. §§ 451-473 (1964). Section 459(b) specifically provides:
6
(b) Reemployment rights.
7
In the case of any such person who, in order to perform such training and service, has left or leaves a position (other than a temporary position) in the employ of any employer and who (1) receives such certificate, and (2) makes application for reemployment within ninety days after he is relieved from such training and service or from hospitalization continuing after discharge for a period of not more than one year —
8
(A) if such position was in the employ of the United States Government, its Territories, or possessions, or political subdivisions thereof, or the District of Columbia, such person shall —
9
(i) if still qualified to perform the duties of such position, be restored to such position or to a position of like seniority, status, and pay; or
10
* * * * * *
In addition section 459(c) (2) states:
11
(2) It is declared to be the sense of the Congress that any person who is restored to a position in accordance with the provisions of paragraph (A) or (B) of subsection (b) [of this section] should be so restored in such manner as to give him such status in his employment as he would have enjoyed if he had continued in such employment continuously from the time of his entering the armed forces until the time of his restoration to such employment.
12
Thus, it can be seen that the basic underlying principle of this act is that he who is "called to the colors [is] not to be penalized on his return by reason of his absence from his civilian job." Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 284, 66 S.Ct. 1105, 1111, 90 L.Ed. 1230 (1946). However, this certainly does not imply that a returning veteran has an absolute right to be promoted in absentia while he is away on military duty. Instead, the distinction between when a returning veteran is entitled to promotion in absentia and when he is not is laid down by the Supreme Court in the two cases of Tilton v. Missouri Pac. R. R., 376 U.S. 169, 84 S.Ct. 595, 11 L.Ed.2d 590 (1964), and McKinney v. Missouri-K.-T. R. R., 357 U.S. 265, 78 S.Ct. 1222, 2 L.Ed.2d 1305 (1958).
13
In McKinney, the Court agreed that section 459(c) (2), supra, entitled the returning employee to a position comparable to the one he occupied before he left and possibly even comparable to the one he would now hold had it not been for the military service. However, the Court limited the provision only to those situations where changes and advancements in status would occur simply by virtue of continued employment or some form of automatic progression. Hatton v. Tabard Press Corp., 406 F.2d 593 (2d Cir.1969) (promotion automatic as long as employee meets minimum standards necessary to avoid discharge). As a result, section 459(c) (2) was held not to apply to those situations where promotion was dependent upon such factors as ability, experience, effort, and the employer's discretion. Poore v. Louisville & Nashville R. R., 235 F.2d 687 (5th Cir.1956); Addison v. Tennesee Coal, Iron & R. R., 204 F.2d 340 (5th Cir. 1953).
14
In Tilton, the Court followed this same standard and found that plaintiffs' promotions, upon completion of the training period, were automatic and neither discretionary with their employer nor dependent upon their ability. Instead, their right to a promotion was dependent simply upon the passage of time. (Plaintiffs had to complete 1,040 days of actual work as carmen mechanics before they could acquire permanent seniority as journeymen.) But see Poore v. Louisville & Nashville R. R., supra, where it was held that promotion was not automatic with the mere elapse of 1,040 days.
15
In the instant case, plaintiff is not contending that he was entitled to an automatic promotion.1 Instead, he is arguing mainly that once his promotion was considered by his supervisors, they applied an improper standard in determining whether he should have been promoted in absentia. Thus, the McKinney and Tilton cases, while helpful to a certain extent, are certainly not dispositive of this case.
16
More specifically, plaintiff urges that the correct standard to be applied in this case is the one laid down in section 459(c) (2), supra, and in IRS Manual Supp. 18G-4, § 3.02 | {
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491 F.Supp.2d 232 (2007)
CITIBANK, N.A., Plaintiff,
v.
ALLIED MANAGEMENT GROUP, INC.; Rafael Portela Rodriguez, Maritza Botella Barcelo, and their Conjugal Partnership; The Two Towers Corporation; Investors and Developers Consultants, Inc.; Allied Investment, Inc.; Marks Incorporated, Defendants.
Civil No. 06-1193 (GAG).
United States District Court, D. Puerto Rico.
June 7, 2007.
*233 Angel Sosa-Baez, Jaime E. Toro-Monserrate, Toro, Colon, Mullet, Rivera & Sifre, Sifre, PSC, San Juan, PR, for Plaintiff.
Jose L. Gonzalez-Castaner, Gonzalez Castaner & Morales Cordero Law Office, San Juan, PR, for Defendants.
OPINION AND ORDER
GELPI, District Judge.
This is a diversity action for breach of contract. Citibank commenced it after Defendants allegedly failed to pay Citibank post-closing fees arising from certain loan transactions whereby Citibank provided Defendants with financing to acquire the buildings known as Citibank Towers and Plaza del Este commercial center. The matter is before the court on the Portela Defendants'[1] motion for partial summary judgment. In this motion, the Portela Defendants argue that Citibank is not entitled to collect any post-closing fees with respect to the Citibank Towers loans because its right to collect such fees expired under the terms of the loan agreements and because Citibank released the Portela Defendants from any claims arising out of those loans. After reviewing the pleadings and pertinent law, the court GRANTS the Portela Defendants' motion for partial summary judgment (Docket No. 92).
I. Relevant Factual and Procedural Background
The parties' statements of material facts, credited only to the extent either admitted or properly supported by record citations in accordance with Local Rule 56 and viewed in the light most favorable to Plaintiff, reveal the following undisputed material facts. On March 31, 1988, Lincoln Realty, Inc. ("Lincoln") executed two loan agreements with Citibank to purchase the buildings known as Citibank Towers. See Docket No. 94 at ¶ 2. The first agreement is in the amount of eleven million dollars ($11,000,000.00) and has no provision for the payment of post-closing fees. Id. at ¶ 3. The second agreement is in the amount of two million five hundred thousand dollars ($2,500,000.00) and contains a provision for the payment of post-closing fees in the form of a participation interest in the rental income and sales proceeds of Citibank Towers. Id. at ¶ 4. Section 11 of this loan agreement describes the post-closing fees. Of relevance to this case, Section 11.1 states:
The obligation of the Borrower to deposit the Excess Income in the escrow account and the right of the Bank to receive the Post Closing Fee agreed to hereunder shall survive the repayment of this Loan or the Loan and Security Agreement (whether by prepayment or otherwise) and shall continue until the Building Complex is sold to or refinanced with a third party unaffiliated to or controlled by the Borrower and/or the Guarantors (as such term is herein defined) provided further that it is of the essence hereof and Borrower so accepts that this payment covenant shall be subject *234 to the representation made by Borrower in Section 6.1.15 hereof.
See Exhibit II, Docket No.1 at p. 46. With respect to the interest in the sales proceeds of Citibank Towers, Section 11.2 provides:
Notwithstanding anything to the contrary in this Agreement, the Bank shall have, at its option, the right to demand and be paid the agreed Post Closing Fee equal to Fifty Percent (50%) of the Excess Sales Income based on the fair market value of the Building Complex agreed to between Borrower and the. Bank at the Maturity Date of the Loan and Security Agreement in the event the Building Complex has not been sold by that date, provided that in the event there is no agreement as to the referenced fair market value, then in such event the aforesaid fair market value for the Building Complex shall be determined by the following appraisal procedures. . . .
Id. at 46-47. Additionally, this loan agreement provided Citibank with "a right of first offer with respect to any proposed refinancing of the Properties." Id. at 41.
On June 13, 1990, Lincoln executed another loan agreement with Citibank. Id. at ¶ 11. The total amount of this loan is three million eight hundred fifty thousand dollars ($3,850,000.00). Id. at ¶ 12. In this loan agreement, Defendants restated their commitment to pay the post-closing fees under the second 1988 loan agreement. Id. at ¶ 14. Section 11 of this loan agreement describes the post-closing fees. Of relevance to this case, Section 11.1 states:
The obligation of the Borrower to deposit the Excess Income in the escrow account and the right of the Bank to receive the Post Closing Fee agreed to hereunder shall survive the repayment of the Loan and Security Agreement or the Loans or this Agreement (whether by prepayment or otherwise) and shall continue until the Building Complex is sold to or refinanced with a third party unaffiliated to or controlled by the Borrower and/or the Guarantors (as such term is herein defined) provided further that it is of the essence hereof and Borrower so accepts that this payment covenant shall be subject to the representation made by Borrower in Section 6.1.23 hereof.
See Exhibit III, Docket No. 1 at p. 38. With respect to the interest in the sales proceeds of Citibank Towers, Section 11.2 provides:
Notwithstanding anything to the contrary in this Agreement, the Bank shall have, at its option, the right to demand and be paid the agreed Post Closing Fee equal to Fifty Percent (50%) of the Excess Sales Income based on the fair market value of the Building Complex agreed to between Borrower and the Bank on March 30, 1991 and every third anniversary of the said date thereafter or at the time of refinancing with any third party in the event the Building Complex has not been sold or refinanced by that date, provided that in the event there is no agreement as to the referenced fair market value, then in such event the aforesaid fair market value for the Building Complex shall be determined by the following appraisal procedures. . . .
Id. at 38-39. Additionally, this loan agreement provided Citibank with "a right of first offer with respect to any proposed refinancing of the Properties." Id. at 34.
In mid 1997, Lincoln decided to refinance the Citibank Towers loans. See Docket No. 94 at ¶ 19. Shortly thereafter, Lincoln asked Citibank to provide the loan for the refinancing. Id. Unable to reach an agreement with Citibank, Lincoln refinanced *235 the Citibank Towers loans with third parties Chase Manhattan Bank and Bank Trust on September 4, 1998. Id. at ¶ 20. These financial institutions were neither affiliated with nor controlled by the borrower or the guarantors. Id.
On March 31, 2005, Lincoln sold the Citibank Towers. Id. Alleging that Defendants failed to pay post-closing fees in connection with the Citibank Towers loans and another loan agreement not relevant to the motion before the court, Citibank filed this suit on February 22, 2006. See Docket No. 1. On February 14, 2007, the Portela Defendants moved for partial summary judgment. See Docket Nos. 92-94. Citibank opposed this motion on March 9, 2007. See Docket Nos. 96-97. On March 19, 2007, the Portela Defendants filed a reply to Citibank's opposition. See Docket No. 98. Citibank filed a sur-reply on April 18, 2007. See Docket No. 112.
II. Summary Judgment Standard
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that the is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A factual dispute is "genuine" if it could be resolved in favor of either party, and "material" if it potentially affects the outcome of the case. Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 19 (1st Cir.2004).
The moving party has the burden of establishing the nonexistence of a genuine issue of material fact. Celotex, 477 U.S. at 325, 106 S.Ct. 2548. This burden has two components: (1) an initial burden of production that shifts to the nonmoving party if satisfied by the moving party; and (2) an ultimate burden of persuasion that always remains on the moving party. Id. at 331. The moving party may discharge its burden by "pointing out to the district court . . . that there is an absence of evidence to support the nonmoving party's case." Id.
After the moving party makes this initial showing, the "burden shifts to | {
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In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-13-00347-CR
JUAN LUIS VALENZUELA JIMENEZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 31st District Court
Hemphill County, Texas
Trial Court No. 2902, Honorable Steven Ray Emmert, Presiding
July 17, 2014
MEMORANDUM OPINION
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Appellant was indicted and convicted of fraudulent use or possession of
identifying information and sentenced to confinement for one year in a State Jail Facility
(SJF) and a fine of $5,000.1 Appellant appeals his conviction, contending that the trial
court committed reversible error when it admitted appellant’s statement in evidence.
We will affirm.
1
See TEX. PENAL CODE ANN. § 32.51(b)(1), (c) (West Supp. 2013).
Factual and Procedural Background
Appellant obtained employment at King Well Service in Canadian, Texas, under
the name of Victor Maitland. Later, the Texas Workforce Commission contacted the
true Victor Maitland to advise him that their records indicated that, while he was drawing
unemployment compensation, he was actually employed by King Well Service. After
Maitland contacted King Well Service and verified that it had an employee by the name
of Victor Maitland, Maitland called the Hemphill County Sheriff’s Department to advise
that he thought he was a victim of identification theft.
After receiving Maitland’s phone call, Deputy Jerri-Lynn Ortega contacted King
Well Service and was provided copies of a social security card and permanent resident
card that appellant had given King Well Service when he was hired. The name on the
card was Victor Maitland. Jerri-Lynn Ortega was informed that appellant was not
entirely fluent in English. Based upon this information, prior to going to appellant’s
home to question him, Jerri-Lynn Ortega sought the assistance of Deputy Oscar Ortega,
who is a Spanish speaker.
Upon arriving at appellant’s residence, Jerri-Lynn Ortega ask to see appellant’s
identification and was shown a driver’s license issued by the State of Chihuahua,
Mexico, that identified appellant as Juan Luis Valenzuela Jimenez. Appellant told the
deputies that he was not employed. Jerri-Lynn Ortega then attempted to show
appellant the social security card and permanent resident card obtained from King Well
Service and ask him about his employment at King Well Service; however, appellant
appeared not to understand the question. When asked about employment in Spanish
2
by Oscar Ortega, appellant admitted that he was employed by King Well Service and
showed them the original of the social security card and permanent resident card under
the name of Victor Maitland. Further, appellant admitted to purchasing the identification
documents at issue for $1,000 in Amarillo.
Per the deputies’ request, appellant then accompanied the two deputies back to
the sheriff’s office to provide a statement. It was while at the sheriff’s office that the
statement, which is the subject of appellant’s issue, was obtained. Appellant was
indicted for the subject offense and, prior to trial, appellant filed a motion in limine as to
“Evidence of Defendant’s Statement.” Even though the pending motion was styled as a
motion in limine, the record is clear that the attorneys for each of the parties and the trial
judge treated the motion as a motion to suppress the statement. The trial court
conducted a hearing on the motion and denied the motion. Thereafter, the case went to
trial and resulted in the conviction and sentence that appellant now appeals.
Standard of Review
We review a trial court’s denial of a motion to suppress under a bifurcated
standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013).
We review the trial court’s factual findings for an abuse of discretion but review the trial
court’s application of the law to the facts de novo. Id. In reviewing the trial court’s
decision, we do not engage in our own factual review; rather, the trial judge is the sole
trier of fact and judge of the credibility of the witnesses and the weight to be given their
testimony. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007).
Therefore, we give almost total deference to the trial court’s rulings on (1) questions of
3
historical fact, especially when based on an evaluation of credibility and demeanor, and
(2) application-of-law-to-fact questions that turn on an evaluation of credibility and
demeanor. See Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). Appellate
courts review de novo “mixed questions of law and fact” that do not depend upon
credibility and demeanor. Id. If the trial court’s decision is correct under any theory of
law applicable to the case, it will be sustained. Armendariz v. State, 123 S.W.3d 401,
404 (Tex. Crim. App. 2003) (en banc). Additionally, the legal question whether the
totality of circumstances justified the officer’s actions is reviewed de novo. Hudson v.
State, 247 S.W.3d 780, 784 (Tex. App.—Amarillo 2008, no pet.).
Analysis
In a single issue, appellant contends that the trial court erred in admitting
appellant’s written statement into evidence. However, before we may take up the direct
question of that statement’s admissibility, we must address the State’s question of
whether this issue has been properly preserved for appeal.
It is a settled principle of Texas jurisprudence that, to be allowed to complain on
appeal about the action of a trial court in admitting evidence, there must be a timely
request, complaint, or motion that advises the trial court what action you wish it to take.
See TEX. R. APP. P. 33.1(a)(1). Additionally, it is also well settled that a motion in limine
does not preserve for appeal the erroneous admission of evidence. See Roberts v.
State, 220 S.W.3d 521, 533 (Tex. Crim. App. 2007); Martinez v. State, 98 S.W.3d 189,
193 (Tex. Crim. App. 2003).
4
The motion filed by appellant is styled a motion in limine. However, a review of
the record reveals that all parties and the trial court conducted the pre-trial hearing as a
hearing on a motion to suppress appellant’s statement. Specifically, at the beginning of
the hearing, we see an exchange between the trial court and the State’s attorney
wherein the State’s attorney agreed that the court would treat appellant’s motion as a
motion to suppress. Accordingly, the State proceeded to produce evidence to show that
the statement should not be suppressed. From this record, it is clear that the document
styled as a motion in limine was treated as a motion to suppress. We will analyze the
case accordingly. See Thomas v. State, 408 S.W.3d 877, 885–86 (Tex. Crim. App.
2013) (holding that the nature of a “no objection” statement is contextually dependent).
The State’s contention is overruled.
Analysis
Appellant’s complaint is centered on the proposition that, during the taking of his
written statement, he was in custody. This then leads to appellant’s conclusion that his
Fifth Amendment privilege against self-incrimination was violated. See U.S. CONST.
amend. V. However, the issue regarding whether the procedure followed by law
enforcement was proper in this case cannot be determined by simply alleging that
appellant did not understand the statement he gave because of language difficulties.
Rather, we must first address the issue of whether appellant was in custody. See
Herrera v. State, 241 S.W.3d 520, 525–26 (Tex. Crim. App. 2007).
Custodial interrogation has been defined as “questioning initiated by law
enforcement officers after a person has been taken into custody or otherwise deprived
5
of his freedom of action in any significant way.” See id. at 525 (quoting Miranda v.
Arizona, 384 U.S. 384, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)). We apply a
reasonable person standard | {
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1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please
2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
3 Please also note that this electronic memorandum opinion may contain computer-generated
4 errors or other deviations from the official paper version filed by the Court of Appeals and does
5 not include the filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. NO. 30,760
10 EDWARD DAVIS,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
13 Neil C. Candelaria, District Judge
14 Gary K. King, Attorney General
15 Santa Fe, NM
16 for Appellee
17 Law Office of Jamison Barkley, LLC
18 Jamison Barkley
19 Santa Fe, NM
20 for Appellant
21 MEMORANDUM OPINION
22 VIGIL, Judge.
1 Defendant appeals his conviction for criminal sexual contact of a minor. In our
2 notice, we proposed to affirm the conviction. Defendant has timely responded to our
3 proposal, along with a motion to amend the docketing statement to include additional
2
1 issues. We deny the motion to amend the docketing statement as it does not comply
2 with State v. Moore, 109 N.M. 119, 128-29, 782 P.2d 91, 100-01 (Ct. App. 1989),
3 overruled on other grounds by State v. Salgado, 112 N.M. 537, 817 P.2d 730 (Ct.
4 App. 1991). We have considered Defendant’s arguments against our proposed
5 affirmance and not being persuaded, we affirm.
6 In our notice, we proposed to conclude that the district court did not err in
7 excluding the testimony of Detective Chadwell, who had investigated a previous
8 allegation of criminal sexual contact that the victim had allegedly made against a
9 different person. We proposed to conclude that the district court did not abuse its
10 discretion pursuant to State v. Johnson, 1997-NMSC-036, 123 N.M. 640, 944 P.2d
11 869. In response, Defendant argues that the exclusion of Detective Chadwell’s
12 testimony violated his right to confront the witnesses against him. Defendant must
13 show that the evidence was relevant or necessary to his defense before his
14 confrontation rights are at issue. Cf. State v. Stephen F., 2007-NMCA-025, ¶ 18, 141
15 N.M. 199, 152 P.3d 842, aff’d 2008-NMSC-037, 144 N.M. 360, 188 P.3d 84. As we
16 pointed out in our calendar notice, Defendant failed to make any showing regarding
17 how the evidence was relevant or necessary to his defense.
18 Defendant appears to be arguing that he sought to have evidence of prior
19 allegations admitted, which is different from evidence of sexual history. The alleged
20 allegations, however, relate to sexual conduct and are included in the ambit of the
3
1 Rape Shield Law. See State v. Casillas, 2009-NMCA-034, ¶¶ 25, 26, 145 N.M. 783,
2 205 P.3d 830. Defendant relies on Manlove v. Sullivan, 108 N.M. 471, 475 n.2, 775
3 P.2d 237, 241 n.2 (1989), to make the distinction. Manlove was decided years before
4 the Supreme Court set out the current test in Johnson for evaluating when such
5 evidence is admissible. Nevertheless, the distinction made in Manlove between sexual
6 conduct and evidence of fabrication is found in Johnson.
7 It simply appears here that Defendant was unable to make a clear enough
8 showing that he sought the evidence solely to attack the veracity of the victim’s
9 allegations. The evidence to be presented here is nothing like that in Manlove. It was
10 the testimony of a police detective who was trying through interview of the victim to
11 verify an allegation made by her mother of sexual contact by another person. The
12 victim never verified the allegation. Defendant has not shown how that evidence is
13 relevant or necessary to his defense.
14 Defendant argues that even assuming that Johnson applies, the first factor does
15 not weigh against him. The first factor requires a clear showing that the complainant
16 committed the prior acts. 1997-NMSC-036, ¶ 27. In its arguments to the district
17 court, the State pointed out that it was not the victim here, but her mother who made
18 the prior allegations. [RP 191] In fact, the victim never disclosed any prior sexual
19 activity. Allegations made by the victim’s mother were referred to CYFD, but the
20 victim herself never reported any sexual activity. Defendant argues that saying that
4
1 the victim did not make the prior allegations is impractical and unworkable. He
2 argues that children often report to a parent who then reports to authorities. But, in
3 those cases, the authorities’ follow-up corroborates a child’s report to its parent. Here,
4 the victim did not follow up her mother’s allegation with a report of her own
5 regarding sexual activity. Thus, there is no clear showing that the victim committed
6 the prior acts.
7 We continue to hold that the district court did not abuse its discretion in
8 applying the Johnson factors and excluding the evidence.
9 The two issues regarding instructing the jury on the meaning of “breast” have
10 not been addressed in the memorandum in response to the calendar notice. Therefore,
11 we deem them to have been abandoned. State v. Salenas, 112 N.M. 268, 269, 814
12 P.2d 136, 137 (Ct. App. 1991).
13 For the reasons stated herein and in the notice of proposed disposition, we
14 affirm.
15 IT IS SO ORDERED.
16 _______________________________
17 MICHAEL E. VIGIL, Judge
18 WE CONCUR:
19 _________________________________
5
1 CELIA FOY CASTILLO, Chief Judge
2 _________________________________
3 JAMES J. WECHSLER, Judge
6
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IN THE SUPERIOR C()URT OF THE STATE OF DELAWARE
STATE OF DELAWARE,
I.D. No.: 1605014261
NAKEEM BAILEY,
Defendant.
MEMORANDUM OPINION AND ORDER
Submitted: December 22, 2016
Decided: March 2, 2017
Corrected: March 10, 2017
Upon Consz`demtion ofDefendant’s Motion to Tmnsfer Charges to Family Court.
DENIED.
Mark A. Denney, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware. Att@rneyfor the State.
Patrick J. Collins, Esquire, Patrick Collins & Associates, LLC, Wilmington,
Delaware. Attorneyfor the Defendam.
MEDINILLA, J.
INTRODUCTION
Defendant Nakeem Bailey Was a fifteen-year-old adjudicated delinquent
youth When he Was arrested on violent felony charges in this Court. His lQ of 72
places him in the 3rd percentile of his same-aged peers. lf convicted as an adult, he
Will spend_at a minimum_the next half of his life (i.e., fifteen years) in prison on
just the minimum mandatory portion of his sentence He filed this Motion to
Transfer Charges to Family Court arguing that transfer of his companion charges is
Warranted pursuant to 10 Del. C. § 1011. A “reverse amenability” hearing Was
held on December 22, 2016, Where the Court heard evidence and oral arguments
on the Motion. After considering the submission of the parties, the parties’ oral
arguments at the hearing, and the record in this case, the Court finds that the
§ 1011(b) factors do not Weigh in favor of transferring Defendant’s companion
charges to Family Court. Therefore, Defendant’s Motion to Transfer Charges to
Family Court is DENIED.
FACTUAL AND PROCEDURAL HISTORY
Sadly, Defendant is yet another poster child for Why the State created the
Department of Services for Children, Youth and Their Families (“DSCYF”). Even
more unfortunate is that this Defendant has required the State’s involvement from
all of their divisions; Division of Family Services (“DFS”) for child abuse,
dependency, and neglect; Division of Prevention and Behavioral Health Services
(“PBH”) for his multiple mental health diagnoses; and Youth Rehabilitative
Services (“YRS”) for his most recent introduction into the juvenile justice system
at age fourteen.
Defendant is one of twenty-eight defendants in a 109-Count indictment With
trial scheduled to begin at the end of 2017.l Defendant has been detained since he
Was fifteen years old and Will have celebrated his sixteenth and seventeenth
birthdays awaiting trial. The charges against Defendant include Gang Participation,
three counts of Possession of a Firearm During Commission of a Felony
(“PFDCF”), Robbery First Degree, Assault First Degree, two counts of Possession
of a Firearm by a Person Prohibited (“PFBPP”), Conspiracy Second Degree, and
Carrying a Concealed Deadly Weapon.
Exclusive Jurisdiction of Firearm Charges
The General Assembly has spoken With respect to how it defines criminal
behaviors and exercised its authority to classify child offenders “based on their age
for purpose of selecting the appropriate court for adjudication.”2 The classification
“must be founded on differences reasonably related to the purposes of the statute in
l Defendant Was arrested in May 2016, arraigned in August 2016, re-indicted in September 2016,
re-arraigned in October 2016. A reverse amenability hearing Was held on December 22, 2016.
2 State v. Anderson, 697 A.2d 379, 382 (Del. 1997) (quoting Hughes v. State, 653 A.2d 241, 248
(Del. 1994)).
”3 Delaware law is clear that, by enacting 11 Del.
which the classification is made.
C. § 1447A(f), the General Assenibly intended that individuals over the age of 15
years charged with PFDCF to be tried as adults and no reverse amenability process
is available.4
Twenty years ago, State v. Anderson addressed the constitutional issues
raised when certain juveniles are placed within the exclusive jurisdiction of this
Court charged with [specified firearm offenses].5 Anderson held that a juvenile
was not entitled to a reverse amenability hearing when charged with PFDCF and
must be tried as an adult without judicial consideration of the factors enumerated
under 10 Del. C. § 1011(b).
Although some jurisdictions have recently considered unconstitutional
certain “autornatic transfer” statutes that prevent amenability review for a juvenile
offender,6 Defendant does not challenge the constitutionality of our current laws
for juveniles charged with firearm offenses. As such and as a preliminary matter,
because the State has charged Defendant with several counts of PFDCF, those
3 Ia'. (quoting State v. Ayers, 260 A.2d 162, 171 (Del. 1969)).
4 11 Del. C. § 1447A(f) (2013 & Supp. 2016). Cf Anderson, 697 A.2d at 383 (discussing older
version of § 1447A(f), which used 16 years of age instead of 15).
5 See generally Ana'erson, 697 A.2d 379.
6 See, e.g., State v. Aalz'm, -~-N.E.Bd----, 2016 WL 7449237 (Ohio Dec. 22, 2016) (holding
Ohio’s mandatory transfer statute for juveniles violates due process under Ohio Constitution).
4
firearm charges--by operation of statute-automatically remain in this Court.7
Since Defendant was over fifteen at the time he allegedly committed these
offenses, he will not be spared Superior Court proceedings regardless of his
arguments for transfer of the companion charges outlined below.8 Therefore,
Defendant’s Motion and this ruling focuses solely on the remaining “companion”
charges
Defendant’s Alleged Conduct
The facts that give rise to these charges reveal that at age 15, Defendant
allegedly held up a victim at gunpoint while the victim was rolling a blunt
cigarette The victim relinquished $9 and a pack of cigarillos. According to the
victim, Defendant had started to back away and was placing the handgun into his
pants pocket when the victim thought he “could take him.” When the victim
attempted to grab him, Defendant fired the gun. Defendant was identified by the
victim and also found discarding the firearm on the same day. Subsequently,
during the course of this investigation, the alleged relationships between Defendant
and some co-defendants gave rise to the gang participation charges. lf convicted,
Defendant faces a minimum mandatory sentence of fifteen years. His first fifteen
years were no better.
7See 10 Del. C. § 1011 (2013 & Supp.2016);1lDel.C. §1447A.
8 See generally Anderson, 697 A.2d 379 (answering certified questions; holding weapons charges
for defendants age 16 and older are not subject to transfer to F amin Court, while reverse
amenability hearing is permissible for charges properly joined with weapons charges).
5
Defendant’s 15-Year History of
Abuse, Dependency, Neglect, and Mental Health
At the reverse amenability hearing, Defendant presented expert evidence in
support of his Motion that provided a background for the pending charges The
State did not introduce any evidence to dispute or contradict the opinions of
Defendant’s experts. This evidence included a “Confidential Report of
Psychological Evaluation” from a licensed psychologist, Dr. Robin Belcher-
Timme, Psy.D, and an “Amenability Report” prepared by Taunya Batista, M.A., a
Sentencing Advocate/l\/litigation Specialist.9
Their reports and testimony painted a troubling picture of Defendant’s life.10
The record reflects that Defendant’s numerous traumatic life events, beginning at
birth, were far from abnormal in the arc of his short life leading up to the charges
in this case. Defendant’s mental health, child welfare, and substance abuse
histories include:
9 The evidence from their curricula vitae shows that Ms. Bautista holds a Masters in Criminal
Justice and Dr. Timme has a doctorate in Psychology, as well as three Master of Arts degrees in
Criminal Justice, Clinical Psychology, and Secondary English Education.
10 Defendant was born prematurely on July 6, 2000. His mother was a child-parent, a sixteen-
year-old freshman at A.l. DuPont High School, with substance abuse issues. His father “wanted
to be a drug dealer” and to “raise a criminal” he continuously exposed his son to criminal
behavior; arrested for trafficking offenses in the same month Defendant was born.
6
¢ Mental health history (from his records with the Division of Prevention
and Behavioral Health Services (“PBH”)): Defendant was diagnosed with
ADHD, Oppositional Defiant Disorder (“ODD”), and Mood Disorder.
¢ Child Welfare history (from the Division of Family Services)_Evidence of
severe domestic violence, child abuse, dependency, and neglect that dates
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4817
ANTONELLA KEYS,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Greenville.
William B. Traxler, Jr., District Judge.
(CR-95-504)
Submitted: April 17, 1997
Decided: May 1, 1997
Before NIEMEYER and WILLIAMS, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Janis Richardson Hall, Greenville, South Carolina, for Appellant.
David Calhoun Stephens, Assistant United States Attorney, Green-
ville, South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Appellant Antonella Keys was convicted pursuant to her guilty
plea of one count of making false statements to a bank in violation
of 18 U.S.C. § 1014 (1994). Keys' counsel has filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), challenging whether the
district court was clearly erroneous in its determination as to the
amount of loss attributable to her and for not granting her a downward
adjustment for being a minor participant.* Finding no error, we
affirm.
Keys was part of a scheme in which counterfeit MasterCards, with
legitimate account numbers but fictitious names, were used to obtain
cash advances from banks in South Carolina. Keys' role in the
scheme was to go into the banks and obtain the money. The presen-
tence report calculated the amount of loss between $120,000 and
$200,000.
We find that the district court was not clearly erroneous in its deter-
mination as to the amount of loss attributable to Keys or by refusing
to grant a downward adjustment for being a minor participant. Keys
bore the burden of showing that the amount of loss contained in the
presentence report was inaccurate, which she admitted she could not
do. See United States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990). Fur-
thermore, while Keys may have only been responsible for a small
fraction of the losses incurred by banks due to fraud nationwide, the
district court properly found that she was not a minor participant in
this particular scheme.
We have examined the entire record in this case in accordance with
the requirements of Anders, and find no meritorious issues for appeal.
The court requires that counsel inform her client, in writing, of her
right to petition the Supreme Court of the United States for further
_________________________________________________________________
*Keys has also filed a pro se supplemental brief in which she asks this
court to order that she be placed on home detention, rather than in a half-
way house, following her release. Since such action is within the discre-
tion of the district court, we decline to grant the requested relief.
2
review. If the client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation. Coun-
sel's motion must state that a copy thereof was served on the client.
We affirm the district court's judgment order. 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
3
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723 F.2d 904
U.S.v.Walker (James Henry)
NO. 83-5040
United States Court of Appeals,Fourth circuit.
DEC 01, 1983
1
Appeal From: E.D.N.C.
2
AFFIRMED.
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
________________
No. 04-2001
________________
Max M. Mason, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Jo Anne B. Barnhart, *
Commissioner of Social Security, * [PUBLISHED]
*
Appellee. *
________________
Submitted: January 13, 2005
Filed: May 5, 2005
________________
Before LOKEN, Chief Judge, HANSEN and MORRIS SHEPPARD ARNOLD,
Circuit Judges.
________________
HANSEN, Circuit Judge.
The Social Security Administration (SSA) issued a notice of overpayment of
benefits to Max M. Mason concerning social security retirement benefits that he
received in 1997. Mason appeals the district court’s1 grant of summary judgment to
the Commissioner upholding the SSA’s determination, and we affirm.
1
The Honorable Fernando J. Gaitan, Jr., United States District Judge for the
Western District of Missouri.
I.
Mason owned and operated a real estate development company called Asset
Management & Service Corp. (“the company”), which elected to be treated as a
“small business corporation,” or an S corporation, under relevant federal tax laws.
See 26 U.S.C. § 1362(a), I.R.C. § 1362(a) (2000). In 1991, Mason sold one-third of
his interest in the company to his son and one-third of his interest to his daughter,
retaining a one-third interest in the company. He entered into a consulting agreement
with the company in 1990, under which he was to receive $100,000 upon signing the
agreement and $5,000 per month through December 31, 1996. The agreement and
the consulting fee were extended through 2000. Mason did not receive payment
under the contract, but in 1997 he reported $264,398 as Schedule C income on his
individual Form 1040 income tax return pursuant to a Form 1099 issued to him by the
company. The company, an accrual-basis taxpayer, experienced $283,000 of earned
but uncollected income in 1997 and sought to minimize the tax effect of that income
on its shareholders by deducting the $264,398 consulting fees paid to Mr. Mason
against the same period’s income. Mason admitted making the conscious decision
to handle the consulting fees in this manner as he was the “only one” able to obtain
the funds necessary to pay any applicable taxes.2 The company did not pay Mason
the $264,398 but issued him a “promise” to pay it when the company sold some
developing lots that it anticipated would be sold a few years down the road. Mason
borrowed over $20,000 to pay the resulting income and self-employment taxes
computed on his 1997 tax return.
2
As an S corporation, the company does not pay taxes on its net income but
passes the net income through to its shareholders on a pro rata basis. See I.R.C. §§
1363(a), 1366(a). In effect, Mason took the full brunt of the income earned by the
company, alleviating his children, as shareholders, from reporting their share of the
income and paying taxes on income they did not receive.
-2-
Mason turned 62 in 1992 and began receiving social security retirement
benefits at that time. The SSA issued a notice in 1999 advising Mason that it had
overpaid his benefits in 1997 by nearly $10,000 because the self-employment
earnings reported on his 1997 Form 1040 reduced his social security benefits to $0
for the year. Mason sought a hearing before an administrative law judge (ALJ),
where he argued that he had “prepaid” the income taxes on the reported income,
which he had yet to receive. As a cash basis taxpayer, he argued that the reported
income was not earnings that could be used to reduce his social security benefits
under the social security regulations. The ALJ upheld the SSA’s determination. The
Appeals Council denied Mason’s request for review, and he brought suit in district
court, seeking review of the Commissioner’s final decision. The district court granted
summary judgment to the Commissioner, and Mason appeals.
II.
We review de novo the district court’s grant of summary judgment, applying
the same standards applied by the district court. See Reeder v. Apfel, 214 F.3d 984,
986-87 (8th Cir. 2000). The Social Security Act provides for judicial review of final
decisions of the Commissioner, which is limited to determining whether substantial
evidence in the record as a whole supports the Commissioner’s decision, and whether
the Commissioner correctly applied the relevant legal standards. See 42 U.S.C. §
405(g) (2000); Berger v. Apfel, 200 F.3d 1157, 1161 (8th Cir. 2000).
The Social Security Act permits a retired person to engage in some work
activity without losing social security retirement benefits. See 42 U.S.C. § 403(b),
(f) (2000). Once the individual’s earnings exceed the applicable exempt amount,
which was $13,500 in 1997, see 64 Fed. Reg. 57506, 57509 (Oct. 25, 1999), social
security benefits are reduced one dollar for each three dollars earned above the
exempt amount. See § 403(b),(f); 20 C.F.R. §§ 404.415(a), 404.430. The issue in
this case is whether the self-employment earnings reported on Mason’s 1997 Form
-3-
1040, for which he received no cash in 1997, are earnings for purposes of determining
whether Mason had excess earnings that would reduce his social security retirement
benefits.
The social security regulations define “earnings” as “an individual’s earnings
for a taxable year,” which include both “wages” and “net earnings from
self-employment.” 20 C.F.R. § 404.429(a). Net earnings from self-employment are
determined under subpart K of the social security regulations (20 C.F.R. §§
404.1001-404.1096). See § 404.429(b). In explaining “earnings in a taxable year,”
the regulations provide that “[n]et earnings from self-employment . . . are derived, or
incurred, and are includable as earnings . . . in the year for which such earnings . . .
are reportable for Federal income tax purposes.” § 404.428(b). See also 20 C.F.R. §
404.1080(d)(3) (“Your taxable year for figuring self-employment income is the same
as your taxable year for the purposes of subtitle A of the [Internal Revenue] Code.”).
The Social Security Act and the Internal Revenue Code are to be construed similarly,
as one determines on what earnings an individual will receive credit for benefit
purposes, and the other determines on what earnings an individual must pay social
security tax. See 20 C.F.R. § 404.1001(c). Thus, we must determine whether
Mason’s 1099 income was “reportable” for income tax purposes in 1997 to determine
whether it was properly included as excess earnings for social security purposes.
Mason argues that as a cash basis taxpayer, the 1099 income was not reportable
until he received it, even though he actually reported it on his 1997 return, relying on
20 C.F.R. § 404.1080(c) (defining “net earnings from self-employment” by providing
that “[y]our gross income from a trade or business includes gross income you
received (under the cash basis method) or that accrued to you (under the accrual
method) from the trade or business in the taxable year.”). The Tax Code is not as
simple as Mason would have it. Many interrelated provisions are involved. The
Code requires a business that pays remuneration to any person for services performed
during the calendar year to file an information return, a Form 1099, reporting the
-4-
recipient’s name and address and the amount of the payment. I.R.C. § 6041A(a). If
the business is related to the person performing the services, the business cannot
deduct the payment on its corporate tax return as a business expense unless the
recipient includes the payment as income on his individual tax return in the same
year. See I.R.C. § 267(a)(2).3 Receipt of a Form 1099 does not conclusively
establish that the recipient has reportable income. If a recipient of a Form 1099 has
a reasonable dispute with the amount reported on a Form 1099, the Code places the
burden on the Secretary of the Treasury to produce reasonable and probative
information, in addition to the Form 1099, before payments reported on a Form 1099
are attributed to the recipient. See I.R.C. § 6201(d).
Applying these tax provisions to | {
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540 U.S. 892
WEEMSv.UNITED STATES.
No. 03-5175.
Supreme Court of United States.
October 6, 2003.
1
Appeal from the C. A. 1st Cir.
2
Certiorari denied. Reported below: 322 F. 3d 18.
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1 F.3d 1240
NOTICE: 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.Ramona and Johnny BRANHAM, Plaintiffs-Appellants,v.Lee W. DAVIS, D.O., Defendant-Appellee.
No. 92-6160.
United States Court of Appeals, Sixth Circuit.
July 12, 1993.
Before NELSON and SUHRHEINRICH, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.
PER CURIAM.
1
This is a medical malpractice case, filed in federal court on diversity grounds, that was dismissed for want of prosecution some two and a half years after commencement of the action. The sole question presented on appeal is whether the district court abused its discretion in dismissing the action and denying a motion for reconsideration of the dismissal. Finding no abuse of discretion, we shall affirm the challenged decisions.
2
* The plaintiffs, Ramona and Johnny Branham, filed their lawsuit on January 22, 1990. The complaint, which was very short on specifics, alleged that the defendant, Dr. Davis, attended Mrs. Branham at the delivery of a baby on January 23, 1989, and negligently failed to exercise an appropriate degree of care and skill.
3
On April 30, 1990, the district court ordered that all discovery be completed before November 1, 1990; that all pretrial motions be filed before December 1, 1990; and that a pre-trial conference be held on January 7, 1991. On motion of the plaintiffs the discovery period was later extended to May 1, 1991. On May 13, 1991, the court extended the discovery period to June 1, 1991, again at the instance of the plaintiffs. On May 31, 1991, the trial (then set for July 23, 1991) was continued on motion by the defendant.
4
The rescheduled pre-trial conference was further continued, upon the plaintiffs' motion, on September 9, 1991. At that time the court set December 7, 1992, as the date for a pre-trial conference and January 5, 1993, as the date for trial.
5
On February 21, 1992, having learned that plaintiffs' counsel intended to withdraw, the defendant moved the court either to dismiss the case for want of prosecution or order the plaintiffs to obtain new counsel by March 15. The plaintiffs' lawyer responded with a motion to withdraw and to allow the plaintiffs thirty days to secure new counsel. On May 26, 1992, the court denied the defendant's motion and ordered that "the plaintiffs' counsel's motion to withdraw in this matter be, and the same hereby is, GRANTED. The plaintiffs shall have 30 days from the date of entry of this order to obtain new counsel."
6
No new counsel entered an appearance for the plaintiffs within the prescribed thirty-day period. The defendant doctor renewed his dismissal motion on July 8, 1992, focusing this time on the plaintiffs' failure to comply with the court's order to obtain new counsel. The court granted the motion and dismissed the case on July 14, 1992.
7
On July 20, 1992, through a lawyer who appeared solely for this limited purpose, the plaintiffs moved for reconsideration of the dismissal. The lawyer attached an affidavit indicating that he had assisted the Branhams in trying to find new counsel; that an attorney who agreed to review the file had decided, after doing so, not to represent the plaintiffs; and that the plaintiffs had "acted with due diligence" in trying to secure new counsel. The affidavit said that the file was being sent to a lawyer in Virginia for review, but there was no other indication that the plaintiffs would ever be able to find a lawyer willing to take their case.
8
By order of August 7, 1992, the court denied the motion to reconsider. This appeal followed.
II
9
Because it was filed within ten days of the district court's entry of final judgment, we construe the Branhams' motion for reconsideration as a motion made pursuant to Rule 59(e), Fed.R.Civ.P. The underlying judgment is subject to appellate review after denial of a Rule 59(e) motion. Peabody Coal Co. v. Local Union Nos. 1734, 1508, and 1534, UMW, 484 F.2d 78, 80 (6th Cir.1973), cert. denied after subsequent appeal, 430 U.S. 940 (1977). The standard that we apply in reviewing the denial of a Rule 59(e) motion is abuse of discretion. McMahon v. Libbey-Owens-Ford Co., 870 F.2d 1073, 1078 (6th Cir.1989).
10
The district court's dismissal of the Branhams' action represented an exercise of the court's power under Rule 41(b), Fed.R.Civ.P. That rule provides, in relevant part, that "[f]or failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant." The district court's power to dismiss pursuant to Rule 41(b) is discretionary. Bishop v. Cross, 790 F.2d 38 (6th Cir.1986).
11
In Link v. Wabash, 370 U.S. 626, 630 (1962), the Supreme Court recognized "the power of courts, acting on their own initiative, to clear their calendars of cases that have remained dormant because of the inaction or dilatoriness of the parties seeking relief." Link noted that a court's failure to give notice of the possibility of dismissal for failure to follow a court order does not necessarily mean that such a dismissal is void; the propriety of a decision to dismiss may be judged largely on the basis of "the knowledge which the circumstances show [the party whose case is dismissed] may be taken to have of the consequences of his own conduct." Id. at 632.
12
The appellants rely chiefly on Harris v. Callwood, 844 F.2d 1254 (6th Cir.1988). In Harris this court examined a series of Rule 41(b) cases from this circuit and others and extracted the following principle: "[I]n the absence of notice that dismissal is contemplated[ ,] a district court should impose a penalty short of dismissal unless the derelict party has engaged in 'bad faith or contumacious conduct.' " Id. at 1256, quoting Bishop, 790 F.2d at 39.
13
The Harris court was reviewing a decision to dismiss a case sua sponte upon the failure of a pro se litigant to appear at a final settlement conference. The case at bar, by contrast, was dismissed only after the defendant had twice moved for dismissal. The plaintiffs had been served with copies of both motions, and the plaintiffs were on notice that the district court's order of May 26, 1992, gave them 30 days to obtain new counsel. This was all the time their lawyer had asked for, of course, and on the record of this case it was not unreasonable to charge the plaintiffs with knowledge that their case might be dismissed if they failed to meet the deadline they themselves had suggested. It was therefore within the discretion of the district court to dismiss the case without a showing of bad faith or contumacious conduct.
14
Given the length of time the case had been pending, given the failure of the original complaint to set forth a plain statement of the plaintiffs' claim, given the lack of enthusiasm for the case exhibited by the lawyer who filed the matter originally, and given the fact that other lawyers who were familiar with the case had no interest in trying it themselves and apparently could not recommend any lawyer who had such an interest, the district court would have been justified, we believe, in surmising that the plaintiffs may not have had a particularly strong case. Where there is a realistic prospect of a lawyer's being able to pocket a contingent fee of any size, it has been our experience that competent trial lawyers are not hard to find. This case was not dismissed until more than 40 months after the plaintiffs' cause of action was said to have accrued, and if the plaintiffs could not secure adequate legal representation in that length of time, it is not unlikely that the case never belonged on the docket of a busy federal court in the first place. Be that as it may, we are satisfied that the district court did not abuse its discretion in dismissing the action and declining to reinstate it upon reconsideration.
15
AFFIRMED.
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720 So.2d 535 (1998)
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH PENNSYLVANIA, a Pennsylvania corporation licensed to do business in the State of Florida, Petitioner,
v.
FLORIDA CONSTRUCTION, COMMERCE AND INDUSTRY SELF INSURERS FUND, a Florida mutual insurance company, and Florida Employees Insurance Service Corporation, a Florida corporation, and Hewitt, Coleman & Associates, a Florida corporation, Respondents.
No. 97-04756.
District Court of Appeal of Florida, Second District.
June 24, 1998.
Rehearing Denied October 12, 1998.
Kimberly A. Staffa and David J. Abbey of Fox, Grove, Abbey, Adams, Byelick & Kiernan, L.L.D., St. Petersburg, for Petitioner.
Morgan R. Bentley, M. Lewis Hall, III, and David A. Wallace of Williams, Parker, Harrison, Dietz & Getzen, Sarasota, for Respondents, Florida Construction, Commerce and Industry Self Insurers Fund, and Florida Employees Insurance Service Corporation; and Todd W. Vraspir of Papy & Weissenborn, P.A., Tampa, for Respondent, Hewill, Coleman & Associates.
PER CURIAM.
This petition for writ of certiorari seeks review of a pretrial order granting a motion to compel National Union Fire Insurance Company of Pittsburgh Pennsylvania (National Union) to release its claim file documents to Florida Construction, Commerce and Industry Self Insurers Fund (FCCI). National Union contends that the documents in the file are protected work product and, therefore, are privileged. We grant the petition for writ of certiorari and quash the pretrial order.
Generally, a trial court is allowed broad discretion in discovery matters. The standard for review in a petition for writ of *536 certiorari regarding a discovery issue is whether the trial court departed from the essential requirements of the law, thereby causing irreparable harm to the petitioner. See Wal-Mart Stores, Inc. v. Weeks, 696 So.2d 855, 856 (Fla. 2d DCA 1997); American Southern Co. v. Tinter, Inc., 565 So.2d 891 (Fla. 3d DCA 1990).
Upon review of the petition, response, and record before this court, we hold that the order compelling National Union to disclose the documents based strictly on the dates of their creation constitutes a departure from the essential requirements of the law which will arguably cause it irreparable injury throughout the remainder of the proceedings in the trial court for which a remedy on appeal would be inadequate.
During 1979 and 1980, National Union issued two excess workers' compensation policies to FCCI, and pursuant to those policies, National Union was obligated to reimburse FCCI for individual claims which exceeded $250,000 during 1979 and $300,000 during 1980. FCCI contends in its complaint that National Union breached the terms of the policy by failing to reimburse FCCI for a claim in 1979 by John Racki and a claim in 1980 by John Johnson. National Union denied liability, asserting that the notices of the claims were untimely presented.
FCCI filed an amended request for production of claim file documents which read: "All claim files for claims arising during 1979 and 1980 involving or related to claims of FCCI or members of FCCI for which National Union has set a reserve." In addition to the Johnson and Racki files, there were ten other claim files, with both pending claims and closed claims, which met the parameters of this request. National Union filed a motion for protective order on all the files, arguing several grounds including work product and attorney-client privilege. The court denied National Union's motion, but set forth a procedure for National Union to object to any particular document and indicated there would be a further hearing on those documents for which National Union claimed privilege. Document production between National Union and FCCI went forward in July 1997.
Following the release of some file documents by National Union, FCCI filed a second motion to compel the in camera inspection of the remaining unreleased documents. National Union provided the trial court with an amended comprehensive log of the documents in the claim files it considered covered by the work product and attorney-client privilege. The log was accompanied by an affidavit of National Union's claims manager, Dwain Darrien. Darrien asserted that all the documents listed in the log were prepared after National Union received written notice of FCCI's claims and had sent a letter denying the claim for lack of proper notice. Darrien asserted the documents contained personal thoughts, evaluations, and recommendations regarding the claims and the possibility of litigation which were never intended to be disclosed to third parties.
The court reviewed the privilege log on the other ten claim files and found there were no attorney-client communications contained in the documents. The court then determined that the documents in those files could not be protected by the work product doctrine unless the claims in the files were the subject of litigation. The court found no evidence indicating that documents created before the 1994 institution of the suit were prepared in anticipation of litigation, but rather determined the documents were created in the normal course of business. The court interpreted DeBartolo-Aventura, Inc. v. Hernandez, 638 So.2d 988 (Fla. 3d DCA 1994), and Cotton States Mutual Insurance Co. v. Turtle Reef Associates, Inc., 444 So.2d 595 (Fla. 4th DCA 1984), to hold that if a document was created for any reason other than imminent litigation, by definition it could not be considered work product protected. The court failed to examine all the documents sought by FCCI, but instead relied upon its determination that any document created before the December 1994 institution of the suit was created in the normal course of business, and ordered the release of the documents in all the files. This decision was erroneous. As explained by this court in Waste Management, Inc. v. Florida Power & Light Co., 571 So.2d 507, 509-10 (Fla. 2d DCA 1990):
*537 The key factor in our determination is whether the documents were "prepared in anticipation of litigation." It is not necessary that the documents be prepared for imminent or ongoing litigation. See Anchor Nat'l Fin. Servs., Inc. v. Smeltz, 546 So.2d 760 (Fla. 2d DCA 1989); Florida Cypress Gardens, Inc. v. Murphy. But see Cotton States Mut. Ins. Co. v. Turtle Reef Assocs., Inc., 444 So.2d 595 (Fla. 4th DCA 1984) (work product privilege attaches to documents prepared "in contemplation of litigation," not for "mere likelihood of litigation"). As we observed in Anchor National, "[e]ven preliminary investigative materials are privileged if compiled in response to some event which foreseeably could be made the basis of a claim." Anchor Nat'l, 546 So.2d at 761.
We find unrefuted evidence in the affidavit by Dwain Darrien, National Union's claims manager, that the items were prepared in anticipation of litigation, and therefore, a limited privilege attaches to them. Materials such as these may qualify as work product despite the fact that, as here, no specific litigation is pending at the time the materials are compiled. See Waste Management, 571 So.2d at 507; Anchor Nat'l Fin. Servs., Inc. v. Smeltz, 546 So.2d 760 (Fla. 2d DCA 1989); Florida Cypress Gardens, Inc. v. Murphy, 471 So.2d 203 (Fla. 2d DCA 1985). The trial court must focus on whether there is some event which could foreseeably be the basis of future litigation that compels the creation of the documents. Here, that event was National Union's response to FCCI's notice of claim which declared that the notice of claim was untimely.
Therefore, we hold that National Union made a sufficient showing that the documents in question may be protected under the work product doctrine, and the trial court departed from the essential requirements of the law in requiring their production without further inquiry regarding whether FCCI is able to overcome that privilege.
Accordingly, the petition for writ of certiorari is granted and the order requiring National Union to produce the documents is quashed. On remand, the trial court must examine the documents to determine if the work product privilege applies to each document, and if so, further inquiry will be necessary to determine if FCCI can overcome that privilege.
QUINCE, A.C.J., and WHATLEY and NORTHCUTT, JJ., concur.
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Case: 13-60111 Document: 00512479354 Page: 1 Date Filed: 12/20/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 20, 2013
No. 13-60111
Summary Calendar Lyle W. Cayce
Clerk
ARIF YUSUF VHORA; NASIMBEN ARIFBHAI VHORA; AYMAN ARIFBHAI
VHORA; RAWHABEN ARIFBHAI VHORA,
Petitioners
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA Nos. A087 380 081, A087 380 082,
A087 380 083, A087 380 084
Before BENAVIDES, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
Arif Yusuf Vhora, a native and citizen of India, filed applications for
asylum, withholding of removal, and relief under the Convention Against
Torture (CAT) based on persecution on account of his Muslim religion. Vhora’s
wife, Nasimben Arifbhai Vhora, and his two daughters, Ayman Arifbhai Vhora,
Rawhaben Arifbhai Vhora, seek derivative benefits of his asylum application.
* 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: 13-60111 Document: 00512479354 Page: 2 Date Filed: 12/20/2013
No. 13-60111
The Immigration Judge (IJ) made an adverse credibility finding and
determined that Vhora failed to satisfy his burden of proof for asylum,
withholding of removal, and relief under the CAT. The IJ alternatively
determined that, even if Vhora was credible, he nevertheless failed to satisfy
his burdens of proof. The IJ’s decision was upheld by the Board of Immigration
Appeals (BIA) when it dismissed Vhora’s appeal.
Vhora argues that the IJ’s adverse credibility determination was
erroneous. We review questions of law de novo and factual findings for
substantial evidence. Tamara-Gomez v. Gonzales, 447 F.3d 343, 347 (5th Cir.
2006). Under the substantial evidence standard, reversal is improper unless
we decide that the evidence compels a contrary conclusion. Zhu v. Gonzales,
493 F.3d 588, 594 (5th Cir. 2007). Because an IJ “may rely on any
inconsistency or omission in making an adverse credibility determination as
long as the totality of the circumstances establishes that an . . . applicant is
not credible,” we must defer to that determination “unless it is plain that no
reasonable factfinder could make” such a ruling. Wang v. Holder, 569 F.3d
531, 538 (5th Cir. 2009) (internal quotation marks and citation omitted).
The IJ noted the following inconsistencies between Vhora’s sworn
statement and testimony: (1) inconsistencies concerning whether he was the
only worker at the Udna mosque; (2) the implausibility that his work at the
Udna mosque would result in four arrests over a ten-year period in different
cities throughout the state of Gujarat; (3) inconsistencies concerning the dates
of his marriage and his second arrest; (4) inconsistencies concerning whether
he was recruited to work for the Bajja Hindu party in a 1997 election; and (5)
inconsistencies concerning why his visa was cancelled. The IJ further found
that the additional evidence he submitted did not explain these inconsistencies
or the implausibility of his statements. Vhora fails to show that, in light of the
2
Case: 13-60111 Document: 00512479354 Page: 3 Date Filed: 12/20/2013
No. 13-60111
totality of the circumstances, it is plain that no reasonable factfinder could
make such a credibility determination. See Wang, 569 F.3d at 538.
The IJ and BIA further determined that, even if his testimony were
credible, Vhora did not show that he has a well-founded fear of future
persecution if he returned to India because he voluntarily returned to India
twice from South Africa and once from the United States; he did not explain
why he returned instead of arranging for his family to leave India. See Dayo
v. Holder, 687 F.3d 653, 657 (5th Cir. 2012). The IJ and BIA also determined
that there was evidence that Vhora and his family could relocate within India
because the Indian Government has taken steps to protect Muslims including
appointing commissions to investigate, study, and make recommendations for
preventing violence, ten years have passed since the violence in Gujarat, the
Hindu BJP party was defeated in the 2004 elections, and there are six states
in India with large Muslim populations and two states in which Muslims are
the majority.
Vhora has not shown that the record evidence compels a contrary
conclusion. See Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007). Vhora also
has not shown that the IJ and BIA erred in holding that he failed to satisfy the
higher burden of showing that he was entitled to withholding of removal. See
Arif v. Mukasey, 509 F.3d 677, 680 (5th Cir. 2007). Finally, Vhora has failed
to show that his testimony and documentary evidence sufficed to warrant relief
under the CAT. See Efe v. Ashcroft, 293 F.3d 899, 907 (5th Cir. 2002).
PETITION DENIED.
3
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755 F.Supp. 36 (1991)
ERVA PHARMACEUTICALS, INC., Plaintiff,
v.
AMERICAN CYANAMID COMPANY, Defendant.
Civ. No. 90-1344 (JP).
United States District Court, D. Puerto Rico.
January 24, 1991.
*37 Federico Calaf, Reichard & Calaf, San Juan, P.R., for plaintiff.
Jorge L. Guerrero, Hato Rey, P.R., for defendant.
*38 OPINION AND ORDER
PIERAS, District Judge.
The Court has before it defendant's motion for summary judgment and plaintiff's partial motion for summary judgment. This action arises under the Puerto Rico Trademark Act, 10 L.P.R.A. § 202. Plaintiff seeks damages and injunctive relief for defendant's alleged infringement of its trademark "SUPRA." Defendant American Cyanamid Company ("American"), who removed the case to this Court from the Superior Court of Puerto Rico, has filed a counterclaim based on false designation of origin, trademark infringement, and unfair competition under the Lanham Act and the relevant provisions of the Puerto Rico Civil Code. American also requests damages and injunctive relief for plaintiff's alleged violations.
For the reasons stated below, we deny plaintiff's motion and grant defendant's motion for summary judgment.
I. BACKGROUND
The plaintiff, Erva Pharmaceuticals, Inc. ("Erva"), is a Puerto Rico corporation, with its offices and principal place of business in Santurce, Puerto Rico. (Initial Scheduling Conference Order, Stipulation # 1 of parties). Plaintiff Erva sells the pharmaceutical product with the trademark "SUPRA", which is manufactured in the continental United States. This product, sold by prescription only, claims to be "A New Concept in Treatment of Erectile Impotence." See Exhibit 7 to defendant's Summary Judgment Motion filed July 2, 1990. It contains the active ingredient "Yohimbine Hydrochloride", and according to the insert in the package, "SUPRA" may "have activity as an aphrodisiac." Id. The product is manufactured by JMI-Canton Pharmaceutical, Inc., in Canton, Ohio. The plaintiff has registered the trademark "SUPRA" in the Commonwealth of Puerto Rico, (Registration No. 27,551), since January 16, 1987. The date of the first use claimed in the petition for registration is March 26, 1986.
American Cyanamid is a Maine corporation with offices and principal place of business in New Jersey. Defendant American Cyanamid sells the antibiotic product "SUPRAX," which is used for "pediatric otitis media," or inner ear infections. The product is manufactured by Lederle Laboratories Division of American Cyanamid Company in New York, under license of Fujisawa Pharmaceutical Co., Ltd., a Japanese company. The defendant has registered the trademark for this product and has been the owner of the United States Trademark "SUPRAX" (Registration No. 1,456,050), since September 8, 1987. The date of the first use claimed in the petition for registration is April 21, 1986. The "SUPRAX" registration in Puerto Rico (Registration No. 29,275), was made on April 10, 1990. The date of the first use claimed in this petition for registration is September 15, 1989. American Cyanamid has been using this trademark in interstate commerce and in Puerto Rico, and its products using this trademark are sold to customers throughout the United States and Puerto Rico. Both the parties have stipulated that neither has consented to nor authorized the other to use its trademark in any way which is confusingly similar to the others' trademark.
II. SUMMARY JUDGMENT THE LEGAL STANDARD
A motion for summary judgment is appropriately granted when:
[T]he pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c).
A "genuine" issue is one that is dispositive and that must be decided at trial. FDIC v. Municipality of Ponce, 904 F.2d 740, 742 (1st Cir.1990). The issue must be decided at trial because the evidence, when viewed in the light most favorable to the nonmovant, would allow a reasonable juror to resolve the issue in favor of either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-250, 106 S.Ct. *39 2505, 2510-2511, 91 L.Ed.2d 202 (1986); Mack v. Great Atlantic and Pacific Tea Co., 871 F.2d 179, 181 (1st Cir.1989). The evidence illuminating the factual controversy cannot be "conjectural or problematic; it must have substance in the sense that it limns differing versions of the truth which a factfinder must resolve...." Mack, 871 F.2d at 181. A "material" fact is one which affects the outcome of the case and must be resolved before consideration of related legal issues. Municipality of Ponce, 904 F.2d at 742.
Therefore, in a summary judgment motion, the burden is on the moving party to demonstrate "an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2254, 91 L.Ed.2d 265 (1986). The nonmovant then bears the burden of establishing the existence of a genuine material issue. Brennan v. Hendrigan, 888 F.2d 189, 191 (1st Cir.1989). However, the nonmovant may not rest upon mere allegations or denial of the pleadings; it must respond, by affidavits or other supporting evidence, setting forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e).
III. TRADEMARK LAW, PRIORITY OF SENIOR USER AND LAWFUL USE IN COMMERCE
From the outset, we note that the trademark and unfair competition law of Puerto Rico is congruous with the common law principles developed by the federal courts. Rand, Ltd. v. Lazoff Bros., Inc., 537 F.Supp. 587 (D. P.R.1982). Chapter 11 of the Annotated Laws of Puerto Rico, 10 L.P.R.A. §§ 191-215, establishes the framework for trademark registration and protection in Puerto Rico. Section 191 of the statute states that the "owners of trademarks used in commerce in Puerto Rico ... may obtain registration of such trademarks by complying with the following requisites...." Id. The statute further provides that no trademark shall be registered "which was not lawfully used in Puerto Rico by the applicant or his predecessor prior to the date of filing the application." 10 L.P.R.A. § 194(f) (1978).
Thus, in order to assert protection of the trademark laws, the prior use upon which the trademark registration was based must have been lawful. This is a corollary of the well-settled principle that a trademark right is not acquired by registration, but rather by use; the property right originates in common law by prior appropriation and use. Keebler Co. v. Rovira Biscuit Corp., 624 F.2d 366 (1st Cir. 1980); 4A R. Callman, The Law of Unfair Competition, Trademarks, and Monopolies § 25.03 (4th ed. 1983) (citations omitted). Under the common law, the exclusive right to use a trademark belongs to the first who appropriates it and uses it in connection with a particular business. Armstrong Cork Co. v. Armstrong Plastic Covers Co., 434 F.Supp. 860 (E.D.Mo.1977). See also 7 J. Kalinowski, Antitrust Laws and Trade Regulation § 59.02[3][ii] (citing Trademark Cases, 100 U.S. 82, 94, 25 L.Ed. 550 (1879)). However, in order to enforce the trademark rights, the prior use must be lawful. The Puerto Rico statute incorporates this principle as it provides that no trademark shall be registered "which was not lawfully used in Puerto Rico by the applicant or his predecessor prior to the date of filing the application." 10 L.P.R.A. § 194(f) (1978).
The United States Trademark Trial and Appeal Board adopted the "lawful use in commerce" doctrine and has consistently held that the shipment of goods in violation of a federal statute, including the Food, Drug and Cosmetic Act ("FD & C Act"), may not be recognized as the basis for registering a federal trademark. Clorox Co. v. Armour-Dial, Inc., 214 U.S.P.Q. 850 (1982) (citing In re Stellar International, Inc., 159 U.S.P.Q. 48 (T.T.A.B.1968); Clairol, Inc. v. Holland Hall Products, Inc., 165 U.S.P.Q. 214, 218 (T.T.A.B.1970)).[1] In proceedings before the Board where the *40 product of the applicant seeking registration is allegedly marketed or shipped in violation of applicable law, the party challenging the applicant's registration has the burden of proving the facts which compel denial or cancellation of the federal registration. Kellogg Co. v. New Generation Foods, Inc., 6 U. | {
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NO. 07-09-0341-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
NOVEMBER 5, 2009
______________________________
In re: JOSEPH H. NORTON,
Relator
_________________________________
On Original Proceeding for Writ of Mandamus
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Pending before the court is the petition for writ of mandamus of Joseph H. Norton. Through it, he seeks an order directing the Honorable Ron Enns, 69
th
Judicial District, to act upon two motions allegedly pending before that court. One of the motions involves the appointment of legal counsel to pursue a request for DNA testing. The other motion concerns his counsel’s request to withdraw. Apparently, the trial court had appointed Norton legal counsel at one time or another. Because that attorney moved to withdraw, Norton allegedly requested that he be granted another attorney. We deny the petition for several reasons.
First, Norton has not paid the requisite $125 filing fee despite our previous directive to do so by November 2, 2009. Nor has he tendered an affidavit of indigence illustrating that he is impoverished and, therefore, unable to pay the fee.
Nor has Norton attached to his petition either motion in question. Texas Rule of Appellate Procedure 52.3(k) mandates that the relator include, in an appendix, the document or documents “showing the matter complained of.” The alleged motions to withdraw and for the appointment of new counsel would fall within that category.
Similarly omitted is any certification by Norton indicating that every factual statement in the petition is supported by competent evidence included in the appendix or record. Such is required by Texas Rule of Appellate Procedure 52.3(j).
Accordingly, the petition for writ of mandamus is denied.
Brian Quinn
Chief Justice
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19 F.3d 9
Julienv.INS
NO. 93-4010
United States Court of Appeals,Second Circuit.
Feb 17, 1994
1
Appeal From: I.N.S.
2
AFFIRMED.
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563 F.3d 1042 (2009)
George Edward FARMER, Petitioner-Appellant,
v.
George H. BALDWIN, Respondent-Appellee.
No. 06-35635.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted July 1, 2007.
Submission Withdrawn August 15, 2007.
Resubmitted March 30, 2009.
Filed April 29, 2009.
*1043 Lisa Hay, Assistant Federal Public Defender, Portland, OR, for the petitioner-appellant.
Erin C. Lagesen, Assistant Attorney General, Salem, OR, for the respondent-appellee.
Before ALFRED T. GOODWIN, STEPHEN REINHARDT and MILAN D. SMITH, JR., Circuit Judges.
OPINION
GOODWIN, Circuit Judge:
After hearing oral argument in this case, we submitted a certified question to the Oregon Supreme Court. See Farmer v. Baldwin, 497 F.3d 1050 (9th Cir.2007) (order). On March 26, 2009, the Oregon Supreme Court answered the certified question. Farmer v. Baldwin, 346 Or. 67, 205 P.3d 871 (2009). In light of the Oregon Supreme Court's answer, we reverse the judgment dismissing the petition, and remand for further proceedings.
Because the factual and procedural history of this case is detailed in our certification order, Farmer, 497 F.3d at 1052-53, we briefly summarize it here. George Edward Farmer ("Farmer") appealed the district court's dismissal of his petition for a writ of habeas corpus under 28 U.S.C. § 2254, arising from his conviction in Oregon state court on one count of murder. The district court held that Farmer had failed to exhaust his federal claims because he did not "fairly present" them to the Oregon Supreme Court during his state post-conviction relief proceedings, and that federal habeas review was therefore unavailable under the Antiterrorism and Effective Death Penalty Act of 1996. The district court further determined that Farmer's claims were untimely under Oregon's procedural rules and were therefore procedurally defaulted for purposes of federal habeas review. It also determined that Farmer failed to show cause and prejudice necessary to cure this procedural default, and dismissed his petition.
On appeal, Farmer argued that he had complied with Oregon procedural rules and fairly presented his federal claims to the Oregon Supreme Court by filing a petition for review that referred to a copy of the brief he had filed with the Oregon Court of Appeals in his post-conviction relief proceedings. He alleged that his appellate brief substantially complied with the procedures set out in State v. Balfour, 311 Or. 434, 814 P.2d 1069 (1991), and that Oregon law did not bar him from incorporating by reference his appellate brief into his petition for review. We determined that Farmer's argument raised an important and unresolved issue of Oregon law, and certified the following question to the Oregon Supreme Court:
*1044 Whether, under its rules or practice, the Oregon Supreme Court would deem a federal question not properly raised before it, when that question has been presented by means of an attachment to a Balfour brief filed in the Court of Appeals, and the attachment served as (but was not labeled as) Section B of said brief, and the petitioner specifically states in his petition to the Supreme Court that his reasons for seeking review are set forth in the Balfour brief.
Farmer, 497 F.3d at 1055-56. The Oregon Supreme Court answered:
Under ORAP 5.90, a petitioner may present a question of law to this court by means of an attachment to a Balfour brief filed in the Court of Appeals, when the attachment serves as Section B of said brief, and the petitioner incorporates that same brief by reference into his petition for review.
Farmer, 346 Or. at 81, 205 P.3d 871. The Oregon Supreme Court further stated that Farmer's "petition for review complied with the appellate rules" and his "incorporation by reference of arguments from his appellate brief is a permissible method of raising an issue in [the Oregon Supreme Court]." Id. at 79-80, 81, 205 P.3d 871.
In light of the Oregon Supreme Court's answer to the certified question, we hold that the district court erred in ruling that Farmer had not fairly presented his federal claims and was therefore barred from seeking federal habeas review. Therefore, we reverse the district court's judgment and remand with instructions that it consider Farmer's petition for a writ of habeas corpus ripe for review on the merits.
REVERSED AND REMANDED.
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542 N.W.2d 671 (1996)
Maria Kristina HERNANDEZ, a minor, by Maria HERNANDEZ, her mother and guardian ad litem, Appellant,
v.
RENVILLE PUBLIC SCHOOL DISTRICT NO. 654, Defendant,
Tri-Valley Opportunity Council, Inc., Respondent,
West Central Migrants, Inc., Defendant.
No. C4-95-1396.
Court of Appeals of Minnesota.
January 30, 1996.
Review Denied March 28, 1996.
*672 Thomas G. Johnson and Bradley J. Schmidt, Schmidt, Thompson, Johnson & Moody, P.A., Willmar, for Appellant.
John F. Angell and Leo I. Brisbois, Stich, Angell, Kreidler, Brownson & Ballou, P.S., Minneapolis, for Respondent.
Considered and decided by HUSPENI, P.J., and SCHUMACHER and FOLEY[*], JJ.
OPINION
FOLEY, Judge.[*]
Appellant Maria Kristina Hernandez sued respondent Tri-Valley Opportunity Council, Inc. (Tri-Valley) for injuries suffered when she fell from a piece of playground equipment. The jury concluded that Tri-Valley was not negligent, but found that Hernandez suffered past and future damages of $11,702.60. The district court denied Hernandez's motion for a new trial and this appeal followed.
FACTS
This appeal arises from a suit for damages incurred by Hernandez when she broke her arm after falling from a piece of playground equipment. Four-year-old Hernandez was one of 20 students participating in a summer preschool program operated by Tri-Valley at the Renville High School. The playground equipment at the school included a horizontal ladder, also known as "monkey bars." Due to safety concerns, Tri-Valley determined that the monkey bars were inappropriate for the children participating in the preschool program. Tri-Valley instructed the children at the beginning of the summer session and *673 nearly every day thereafter that they were not to use the monkey bars.
On the day that Hernandez was injured, the preschool children were in a line outside the school, preparing to return inside after recess. The students were supervised during recess by three Tri-Valley employees, one teacher and two assistants. When the children lined up outside the school, one of the assistants was at the back of the line and the other was in the middle of the line. The teacher entered the school for less than one minute to retrieve two students who went inside to get a drink of water. When the teacher came back out, Hernandez had fallen from the monkey bars. Hernandez had been waiting with the other children to enter the school when she left the line, climbed the monkey bars, and fell. Hernandez suffered a broken arm, requiring surgery and further medical attention.
Hernandez sued respondent Tri-Valley, Renville Public School District No. 654, and West Central Migrants, Inc. for past and future damages related to her broken arm. By special verdict, the jury found that none of the defendants were negligent, but that Hernandez suffered damages of $11,702.60. The district court denied Hernandez' motion for judgment notwithstanding the verdict and a new trial. Hernandez appeals the district court's denial of her motion for a new trial only with regard to Tri-Valley.[1]
ISSUES
I. Is a new trial required because the district court instructed the jury that "there is no requirement of constant supervision of all of the movement of all pupils at all times"?
II. Is the evidence insufficient to support the jury's special verdict finding that Tri-Valley was not negligent?
III. Were the damages found by the jury inadequate?
ANALYSIS
I.
District courts are allowed considerable latitude in selecting the language in jury instructions, and this court will not reverse the district court unless the instructions constituted an abuse of discretion. Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986). Where jury instructions fairly and correctly state the applicable law, this court will not grant a new trial. Alevizos v. Metropolitan Airports Comm'n, 452 N.W.2d 492, 501 (Minn.App.1990), review denied (Minn. May 11, 1990).
The district court instructed the jury that
Tri-Valley and its teachers had an obligation to use ordinary care and to protect its students from injuries which could reasonably have been foreseen and could have been prevented by the use of ordinary care. However, there is no requirement of constant supervision of all of the movement of all pupils at all times.
Hernandez argues that the district erred by instructing the jury, in the last sentence of the quoted instruction, that Tri-Valley did not have to supervise each student at all times.
The jury instruction given by the district court closely resembles the instruction given in Sheehan v. St. Peter's Catholic Sch., 291 Minn. 1, 3, 188 N.W.2d 868, 870 (1971).[2] Hernandez argues that because the court in Sheehan did not decide the propriety of the jury instruction, Sheehan does not authorize the use of the instruction in this case. We disagree. In Raleigh v. Independent Sch. Dist. No. 625, 275 N.W.2d 572, 574-75 (Minn. 1978), however, the supreme court explained that it had "implicitly approved the trial court's use of the * * * instruction" in Sheehan. Further, in Verhel v. Independent Sch. Dist. No. 709, the supreme court used the language of the Sheehan jury instruction when articulating a school district's legal duty to protect its students:
*674 Where a school district has [a duty to supervise students], that duty is to "use ordinary care and to protect its students from injury resulting from the conduct of other students under circumstances where such conduct would reasonably have been foreseen and could have been prevented by the use of ordinary care. There is no requirement of constant supervision of all the movements of pupils at all times."
359 N.W.2d 579, 586 (Minn.1984) (quoting Sheehan, 291 Minn. at 3, 188 N.W.2d at 870).
Hernandez argues that under the ordinary care standard, it may be appropriate for a school to provide uninterrupted supervision of children, especially when the children are only four years old. We agree that in a negligent supervision case involving very young children it is preferable to avoid the instruction that a school has no duty to supervise all children at all times. The better practice may be to instruct the jury that the school must exercise ordinary care to protect students from foreseeable injuries.
Despite our reservations regarding the challenged language in the jury instruction, we conclude that the challenged instruction fairly and correctly states the law, and the district court did not abuse its discretion. A new trial, therefore, is not warranted.
II.
Hernandez argues that the evidence does not support the jury's special verdict answer that Tri-Valley was not negligent. A reviewing court will not set aside a jury's answers to special verdict questions unless the answers are "perverse and palpably contrary to the evidence." Hanks v. Hubbard Broadcasting, 493 N.W.2d 302, 309 (Minn.App.1992) (citations omitted), review denied (Minn. Feb. 12, 1993). The reviewing court must view the evidence in the light most favorable to the verdict, and "[i]f the jury's special verdict finding can be reconciled on any theory, the verdict will not be disturbed." Id.
A school is negligent if it fails to exercise ordinary or reasonable care toward its students. Fallin v. Maplewood-North St. Paul Dist. 622, 362 N.W.2d 318, 321 (Minn. 1985). The evidence must show "that supervision would probably have prevented the accident." Verhel, 359 N.W.2d at 586 (quoting Sheehan, 291 Minn. at 5, 188 N.W.2d at 871). However,
[a] teacher, generally, is not required to anticipate the hundreds of unexpected student acts which occur daily or to guard against dangers inherent in rash student acts.
Id.
The evidence supports the jury's special verdict answer that Tri-Valley was not negligent. The record contains no evidence that supervision probably would have prevented the accident. To the contrary, the evidence shows that the accident occurred despite the presence of two supervisors on the playground. The evidence also shows that the accident resulted from the type of unexpected student act that teachers are not required to anticipate. Although there had never been any problems or injuries involving the monkey bars in the past, Tri-Valley repeatedly instructed the students, including Hernandez, not to climb or to play on the monkey bars. While the students were lined up waiting to reenter the school after recess, Hernandez left the line, climbed up the monkey bars, and fell to the ground.
The jury's conclusion regarding Tri-Valley's negligence was not perverse or palpably contrary to the evidence. Further, the jury's conclusion can be reconciled on the theory that Hernandez's actions were unexpected, rash student behavior of the type teachers are not required to anticipate. The district court did not err by denying Hernandez's motion for a new trial.
III.
Hernandez argues that a new trial is necessary because the damages determined by the jury were inadequate. The jury awarded $11,702.60 in damages for past and future medical expenses, pain, disability, disfigurement, embarrassment, and emotional distress.
A district court may grant a new trial if the damages | {
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47 F.3d 431
Intermarine U.S.A.v.Intermarine*
NO. 94-8029
United States Court of Appeals,Eleventh Circuit.
Feb 02, 1995
Appeal From: S.D.Ga., No. 93-00022-CV-4
1
AFFIRMED.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4348
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DENNIS RAY HOWARD, a/k/a D,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:12-cr-00009-D-1)
Submitted: January 19, 2016 Decided: February 3, 2016
Before MOTZ and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Joshua B. Howard, GAMMON, HOWARD & ZESZOTARSKI, PLLC, Raleigh,
North Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A federal jury convicted Dennis Ray Howard of conspiracy to
distribute and possess with intent to distribute phencyclidine
(“PCP”), in violation of 21 U.S.C. § 846 (2012); nine counts of
distribution of PCP, in violation of 21 U.S.C. § 841(a) (2012);
and possession of a firearm in furtherance of a drug trafficking
offense, in violation of 18 U.S.C. § 924(c) (2012). The
district court originally sentenced Howard to life imprisonment
plus a consecutive mandatory minimum sentence of 60 months of
imprisonment for the firearm count. Howard appealed and we
affirmed the convictions, but vacated the sentence and remanded
for resentencing, finding that the sentence was substantively
unreasonable. See United States v. Howard, 773 F.3d 519 (4th
Cir. 2014).
Upon resentencing, the court sentenced Howard to 175 months
of imprisonment for the drug convictions, plus the consecutive
statutory mandatory minimum of 60 months for the firearm
conviction. Howard again appeals, arguing that the sentence is
substantively unreasonable. Finding no error, we affirm.
We review a sentence for abuse of discretion, determining
whether the sentence is procedurally and substantively
reasonable. United States v. Heath, 559 F.3d 263, 266 (4th Cir.
2009). “If no procedural error was committed, [we] can only
vacate a sentence if it was substantively unreasonable in light
2
of all relevant facts.” Id. (internal quotation marks omitted);
see also United States v. Evans, 526 F.3d 155, 160 (4th Cir.
2008) (“[A]n appellate court must defer to the trial court and
can reverse a sentence only if it is unreasonable, even if the
sentence would not have been the choice of the appellate
court.”). We have thoroughly reviewed the record and conclude
that the sentence is substantively reasonable.
Accordingly, we affirm the judgment of the district court.
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
3
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BRANCH BANKING AND TRUST
COMPANY,
Plaintiff,
v. Civil Action No. 13-510 (JEB)
JAMES W. RAPPAPORT, et al.,
Defendants.
MEMORANDUM OPINION
This case concerns two loans that Plaintiff Branch Banking and Trust Company issued to
six different companies affiliated with Specialty Hospitals of America, LLC. Defendants James
Rappaport and Robert Rummler, respectively the Chairman and CEO of SHA, personally
guaranteed both loans up to certain caps for principal as well as interest and fees. Upon the
various borrowers’ defaults, BB&T brought this suit seeking payment from Defendants on the
guarantees. BB&T now moves for summary judgment, arguing that Defendants’ liability and the
amounts they owe are not in dispute. As Defendants largely conceded at the Motion hearing the
propriety of partial summary judgment as to the principal owed – instead contesting only the
interest and fees – and Plaintiff agreed to such resolution, the Court will grant the Motion in part
and deny it in part.
I. Background
Viewing the facts, which Defendants “take no issue with,” see Opp. at 3, in the light most
favorable to Defendants, on March 28, 2008, six organizations associated with SHA
(“Borrowers”) took out a $7,500,000 line of credit (“the Revolving Note”) with BB&T, which
1
was later increased to $10,500,000. See Mot., Affidavit of Regina Barry, ¶ 4. The terms of this
loan, including the rate of interest, were modified several times. Id., ¶ 5. Of relevance here,
Borrowers agreed to make monthly payments of accrued interest beginning on May 1, 2008,
through December 31, 2011, at which point all amounts remaining, including the principal,
would become immediately due. Id., ¶ 7. Borrowers additionally agreed to pay late charges of
5% of the overdue amount and “all costs and expenses incurred by BB&T in connection with
collecting or attempting to collect” the sums due under the Note. Id., ¶¶ 8-9. Borrowers,
however, did not pay off the Revolving Note at the date of maturity, December 31, 2011. Id., ¶
10. As of September 9, 2013, Borrowers owed $6,681,643.61 in principal and $537,223.35 in
interest on this Note. See Reply, Supplemental Affidavit of Regina Barry, ¶ 4.
Borrowers also took out a $35,000,000 loan from BB&T (“the Term Note”) with
specified interest and other conditions. See Barry Aff., ¶ 13. On this loan, they agreed to make
monthly payments beginning on May 1, 2008, through April 1, 2015. Id., ¶ 16. The Term Note
also contained an acceleration provision in the event of default, whereby BB&T could accelerate
and declare immediately due and payable all amounts owed under the Term Note. Id., ¶ 21.
Borrowers failed to make payment under the Term Note, and BB&T exercised its acceleration
rights. Id., ¶¶ 20-21. As of September 9, 2013, Borrowers owed $28,127,952.81 in principal and
$1,609,380.07 in interest on this Note. See Supp. Barry Aff., ¶ 4.
Defendants Rappaport and Rummler guaranteed both Notes. See Barry Aff., ¶ 23.
Rappaport’s guarantee, however, “is limited to $6,000,000.00 plus any and all accrued and
unpaid interest, fees, charges and costs . . . not to exceed $1,000,000.00.” Id., ¶ 25. Rummler’s
guarantee “is limited to $2,000,000.00 plus any and all accrued and unpaid interest, fees, charges
and costs . . . not to exceed $1,000,000.00.” Id., ¶ 26.
2
BB&T entered into a forbearance agreement with Defendants on May 31, 2012, pursuant
to which they were required to pay $2,000,000 to BB&T by July 20, 2012. Id., ¶¶ 27-29. They
did not make this payment. Id., ¶ 30. Fed up, on April 15, 2013, BB&T filed this action against
Defendants, seeking the $10,000,000 they had personally guaranteed. Plaintiff has now moved
for summary judgment. After the parties submitted their briefs, the Court held a hearing on the
Motion on October 11.
II. Legal Standard
Summary judgment may be granted 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v.
Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). Summary judgment may be rendered on a “claim or
defense . . . or [a] part of each claim or defense.” Fed. R. Civ. P. 56(a). “A party asserting that a
fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of
materials in the record.” Fed. R. Civ. P. 56(c)(1)(A). “A fact is ‘material’ if a dispute over it
might affect the outcome of a suit under the governing law; factual disputes that are ‘irrelevant or
unnecessary’ do not affect the summary judgment determination.” Holcomb, 433 F.3d at 895
(quoting Liberty Lobby, Inc., 477 U.S. at 248). An issue is “genuine” if the evidence is such that
a reasonable jury could return a verdict for the nonmoving party. See id. The party seeking
summary judgment “bears the heavy burden of establishing that the merits of his case are so
clear that expedited action is justified.” Taxpayers Watchdog, Inc., v. Stanley, 819 F.2d 294,
297 (D.C. Cir. 1987). “Until a movant has met its burden, the opponent of a summary judgment
motion is under no obligation to present any evidence.” Gray v. Greyhound Lines, East, 545
F.2d 169, 174 (D.C. Cir. 1976).
3
When a motion for summary judgment is under consideration, “the evidence of the non-
movant[s] is to be believed, and all justifiable inferences are to be drawn in [their] favor.”
Liberty Lobby, Inc., 477 U.S. at 255; see also Mastro v. Potomac Elec. Power Co., 447 F.3d 843,
850 (D.C. Cir. 2006); Aka v. Washington Hospital Center, 156 F.3d 1284, 1288 (D.C. Cir. 1998)
(en banc); Washington Post Co. v. U.S. Dep’t of Health and Human Services, 865 F.2d 320, 325
(D.C. Cir. 1989). On a motion for summary judgment, the Court must “eschew making
credibility determinations or weighing the evidence.” Czekalski v. Peters, 475 F.3d 360, 363
(D.C. Cir. 2007).
The nonmoving party’s opposition, however, must consist of more than mere
unsupported allegations or denials and must be supported by affidavits, declarations, or other
competent evidence, setting forth specific facts showing that there is a genuine issue for trial.
Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). He is required to
provide evidence that would permit a reasonable jury to find in his favor. Laningham v. United
States Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the nonmovants’ evidence is “merely
colorable” or “not significantly probative,” summary judgment may be granted. Liberty Lobby,
Inc., 477 U.S. at 249-50; see Scott v. Harris, 550 U.S. 372, 380 (2007) (“Where the record taken
as a whole could not lead a rational trier of fact to find for the non-moving party, there is ‘no
genuine issue for trial.’”) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986)).
III. Analysis
In moving for summary judgment, BB&T argues it is undisputed that Defendants
guaranteed the loans and that they now owe the money. Defendants counter with | {
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 28, 2020 * 0F
Decided June 8, 2020
Before
FRANK H. EASTERBROOK, Circuit Judge
DIANE S. SYKES, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 19-2571
ANDRE V. POWELL, Appeal from the United States District
Petitioner-Appellant, Court for the Northern District of Indiana,
South Bend Division.
v. No. 3:19-CV-297-RLM-MGG
JOHN GALIPEAU, Robert L. Miller, Jr.,
Respondent-Appellee. Judge.
ORDER
Andre Powell petitioned for a writ of habeas corpus challenging the revocation
of his placement in a community re-entry program without notice or a hearing. The
district court denied the petition and Powell appealed. Because Powell has since been
released from prison, a live controversy no longer exists and we therefore vacate and
remand to the district court with instructions to dismiss the case as moot.
* We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 19-2571 Page 2
In 2013 Powell was convicted of Class B felony burglary and sentenced to
18 years’ incarceration. While serving his sentence, Powell was placed in a work-release
program at the South Bend Community Re-Entry Center and assigned to jobs with the
Indiana Department of Natural Resources and the South Bend Cubs, a minor league
baseball team. But after several infractions (Powell was caught stealing from both the
Cubs and the Re-Entry Center, and he failed to show up for work at the Department of
Natural Resources), the Indiana Department of Correction revoked his placement in the
work-release program and transferred him to Westville Correctional Facility. Only after
the transfer did Powell receive any kind of a hearing.
In his petition under 28 U.S.C. § 2241, Powell asserted that his transfer to
Westville without prior notice or a hearing violated due process, and that his transfer
violated his equal protection rights because he was sanctioned more severely than
similarly situated offenders. The district court denied the petition, concluding that
Powell had no constitutional liberty or property interest in a work-release program and,
as a result, he was not entitled to due process before his transfer. And even if he had
been entitled to due process, his claim would not be cognizable in habeas corpus
because the revocation of his placement did not alter the fact or duration of his
confinement.
On appeal Powell challenges the district court’s determination that habeas
corpus was not the correct means by which to contest his transfer. The parties, at our
direction, filed jurisdictional statements addressing whether this appeal should be
dismissed as moot in light of information from the warden that Powell since has been
transferred into a community-transition program and soon would be released from
prison.
Our jurisdiction is limited to live “cases and controversies.” U.S. Const. Art. III,
§ 2; see United States v. Munsingwear, Inc., 340 U.S. 36 (1950); Auto Driveaway Franchise
Systems, LLC v. Auto Driveaway Richmond, LLC, 928 F.3d 670, 674 (7th Cir. 2019). A
petition for a writ of habeas corpus becomes moot after a petitioner is released from
custody unless the petitioner will suffer sufficient collateral consequences from the
feature of his custody that he is challenging. See Spencer v. Kemna, 523 U.S. 1, 7–14
(1998); Lane v. Williams, 455 U.S. 624 (1982); Tara Gold Res. Corp. v. S.E.C., 678 F.3d 557,
559 (7th Cir. 2012). Although we presume that a criminal conviction has collateral
consequences, we do not extend that presumption with respect to prison disciplinary
proceedings. Spencer, 523 U.S. at 7–16; Eichwedel v. Curry, 700 F.3d 275, 279 (7th Cir.
2012) (collecting cases).
No. 19-2571 Page 3
The parties’ submissions confirm that the case is moot. Powell has been released
from Westville. According to the Indiana Department of Correction’s website, Powell
was released from the facility on February 21, 2020, and “[r]eturned to court authority
on release.” Offender Data: Andre Powell, IND. DEP’T OF CORRECTION, https://www.in.gov/
apps/indcorrection/ofs/ofs?previous_page=1&detail=951140 (last visited May 20, 2020).
On March 4 Powell filed notice of a change of address from Elkhart County Work
Release to the Faith Mission in Elkhart. See Powell v. Galipeau, No. 19-2571 Doc. 19
(7th Cir.). Powell’s departure from Westville means that he cannot “obtain ‘any
1F
potential benefit’ from a favorable decision.” Pope v. Perdue, 889 F.3d 410, 414 (7th Cir.
2018) (quoting United States v. Trotter, 270 F.3d 1150, 1152 (7th Cir. 2001)). Powell
already has received the relief he sought—his release from Westville—and there is no
further relief that the facility can provide him. Further, Powell does not identify, let
alone establish, any potential collateral consequences to the revocation of his work-
release. See Spencer v. Kemna, 523 U.S. 1, 7–14 (1998); Lane v. Williams, 455 U.S. 624 (1982);
Tara Gold Res. Corp. v. S.E.C., 678 F.3d 557, 559 (7th Cir. 2012).
To the extent he wishes to raise a constitutional challenge to his transfer to a new
facility, he must bring an action under 42 U.S.C. § 1983 or another statute authorizing
damages or injunctions. Isby v. Brown, 856 F.3d 508 (7th Cir. 2017).
We VACATE the judgment and REMAND with instructions to dismiss the
litigation as moot.
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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 15, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
LAZARO AGUILAR,
Plaintiff - Appellant,
No. 16-1135
v. (D.C. No. 1:15-CV-01481-LTB)
(D. Colorado)
COLORADO STATE PENITENTIARY;
SAINT THOMAS MORE HOSPITAL,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, GORSUCH, and McHUGH, Circuit Judges.
_________________________________
Lazaro Aguilar, a prisoner currently in state custody and proceeding pro se,
appeals the district court’s dismissal of his complaint as frivolous. Mr. Aguilar
sought relief under 42 U.S.C. § 1983 for Eighth Amendment violations founded on
the defendants’ failure to provide him with proper medical care. The district court
dismissed Mr. Aguilar’s complaint as frivolous, and we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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.
This action arises out of the allegedly deficient medical care Mr. Aguilar
received between October 2014 and June 2015 while incarcerated in the Colorado
State Penitentiary (CSP).1 Mr. Aguilar alleged that CSP violated his Eighth
Amendment right to be free from cruel and unusual punishments by providing
inadequate medical care consisting of, among other things, an improper tooth
extraction and other dental care, unreasonable delay in seeing an optometrist, and a
failure to treat various injuries. In addition, Mr. Aguilar alleged that a CSP nurse
referred him to Saint Thomas More Hospital, a private nonprofit hospital operated by
Catholic Health Initiatives Colorado (referred to collectively as STMH), for a CT
scan that STMH never performed. Mr. Aguilar contended STMH’s failure to perform
this CT scan violated the Eighth Amendment. Mr. Aguilar sought $10,000,000 in
damages from each defendant. The district court sua sponte dismissed Mr. Aguilar’s
claims as legally frivolous under 28 U.S.C § 1915(e)(2)(B)(i), and Mr. Aguilar timely
appealed.
We generally review the dismissal of a claim as frivolous for an abuse of
discretion. Fogle v. Pierson, 435 F.3d 1252, 1259 (10th Cir. 2006). But where the
frivolousness determination turns on an issue of law, we review that determination de
novo. Id. A claim is frivolous under § 1915(e) when “it lacks an arguable basis either
in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
1
The district court allowed Mr. Aguilar multiple opportunities to remedy
various deficiencies in his original and first amended complaints. Mr. Aguilar’s
Second Amended Complaint is the operative complaint in this matter.
2
With respect to Mr. Aguilar’s claim against CSP, the district court concluded
that CSP “is not a separate entity apart from” the Colorado Department of
Corrections (CDOC), “which is a state agency and is entitled to Eleventh Amendment
immunity.” Whether an entity enjoys Eleventh Amendment immunity is a legal issue
that we review de novo. Arbogast v. Kan. Dep’t of Labor, 789 F.3d 1174, 1181 (10th
Cir. 2015). Eleventh Amendment immunity extends to a state and its agencies but not
to counties, municipalities, or other political subdivisions of the state. Steadfast Ins.
Co. v. Agric. Ins. Co., 507 F.3d 1250, 1253 (10th Cir. 2007); see also Pennhurst State
Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) (explaining that “in the absence of
consent a suit in which the State or one of its agencies or departments is named as the
defendant is proscribed by the Eleventh Amendment”). The CDOC is an “arm” or
“instrumentality” of the State of Colorado, rather than a political subdivision of the
state, and it therefore enjoys immunity from suit under the Eleventh Amendment
unless that immunity is waived. Griess v. Colorado, 841 F.2d 1042, 1044 (10th Cir.
1988) (per curiam) (noting the “undeniable application” of Eleventh Amendment
immunity to the “State of Colorado and its department of corrections”). Mr. Aguilar’s
claim against CSP is therefore barred by Eleventh Amendment immunity absent a
waiver. Where “it [is] clear from the face of the complaint that the defendant [is]
absolutely immune from suit and no further factual development [is] required,” the
district court may properly dismiss a claim sua sponte as frivolous. Hafed v. Fed.
Bureau of Prisons, 635 F.3d 1172, 1178 (10th Cir. 2011). We conclude the district
court here properly dismissed Mr. Aguilar’s claim against CSP as frivolous.
3
Turning to Mr. Aguilar’s claim against STMH, the district court dismissed this
claim because Mr. Aguilar failed to allege “any official policy or custom of STMH
that was responsible for the alleged constitutional violation.” “The legal sufficiency
of a complaint is a question of law” that we review de novo. Smith v. United States,
561 F.3d 1090, 1098 (10th Cir. 2009). In reviewing the legal sufficiency of a
complaint, we accept all well-pleaded factual allegations as true. See id. at 1097–98.
To state a claim for relief in an action brought under § 1983, a plaintiff must
establish both the deprivation of a constitutional or federal right, and that the
deprivation was committed “under color of state law.” Am. Mfrs. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 49–50 (1999). “[T]he under-color-of-state-law element of
§ 1983 excludes from its reach merely private conduct, no matter how discriminatory
or wrongful.” Id. at 50 (internal quotation marks omitted). Where the defendant to a
§ 1983 action is not a state entity, “state action may be found if, though only if, there
is such a close nexus between the State and the challenged action that seemingly
private behavior may be fairly treated as that of the State itself.” Brentwood Acad. v.
Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001).
Like the district court, however, we find it unnecessary to analyze whether or
not STMH was engaged in state action when it allegedly committed a constitutional
violation, because Mr. Aguilar has failed to allege the existence of a policy or custom
of STMH that led to the constitutional violation. A private entity acting under color
of state law “cannot be held liable solely because it employs a tortfeasor.” Dubbs v.
Head Start, Inc., 336 F.3d 1194, 1216 (10th Cir. 2003) (quoting Monell v. Dep’t of
4
Social Servs., 436 U.S. 658, 691 (1978)). Rather, to hold the entity liable, the
plaintiff must identify an official policy or a custom that is the “direct cause” or
“moving force” behind the constitutional violations. Id. at 1215 (internal quotation
marks omitted). Mr. Aguilar’s complaint contains no allegations from which it could
be inferred that STMH had a policy or custom that was the direct cause of Mr.
Aguilar’s failure to receive a CT scan. Accordingly, STMH cannot be held liable for
the alleged constitutional violation.
Moreover, the district court identified the deficiency in Mr. Aguilar’s
complaint and directed him to remedy it by “alleg[ing] specific facts that demonstrate
he suffered an injury caused by an official policy or custom of STMH.” But Mr.
Aguilar failed to include any such allegations in his Second Amended Complaint. As
a result | {
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87 N.Y.2d 235 (1995)
661 N.E.2d 1372
638 N.Y.S.2d 591
In the Matter of Campaign for Fiscal Equity, Inc., et al., Appellants,
v.
Ralph J. Marino, as President Pro Tempore and Majority Leader of the Senate of the State of New York, et al., Respondents.
Court of Appeals of the State of New York.
Argued November 27, 1995
Decided December 28, 1995.
Michael A. Rebell and Robert L. Hughes, New York City, Jay Worona and Cheryl Randall, Albany, Juan Cartagena and Jonathan Feldman, New York City, for appellants.
Dennis C. Vacco, Attorney-General, Albany (Frank K. Walsh, Victoria A. Graffeo and Peter H. Schiff of counsel), for respondents.
Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, LEVINE and CIPARICK concur.
*237SMITH, J.
The principal issue in this case is whether the State Constitution mandates that a bill passed by both houses of the Legislature be presented to the Governor. Because the practice of retaining legislation passed by both houses of the Legislature does not comply with the Presentment Clause of the New York State Constitution, we reverse the order of the Appellate Division.
The facts are undisputed. Senate Bill No. 3248, known as the "Maintenance of Effort Bill,"[*] was passed by both the Senate and Assembly during 1994 (Mar. 8, 1994 and June 6, 1994, respectively). It was never presented to the Governor before completion of the Legislature's 1994 legislative session. Appellants filed a combined CPLR article 78 proceeding and declaratory judgment action in August 1994, seeking (1) a judgment declaring that the respondents' action of withholding from the Governor bills passed by both houses of the Legislature violated the Presentment Clause of the New York Constitution (art IV, § 7) and the rules of the Senate (Senate Rules III, § 2; IV, § 2) and (2) an order directing respondents to present Senate Bill No. 3248 forthwith to the Governor for review.
Respondents' motion to dismiss the petition/complaint on the grounds of lack of standing, lack of justiciability, and failure to state grounds for relief was granted by Supreme Court. Although finding that appellants had standing to maintain the *238 action, Supreme Court concluded that because the New York Constitution does not specifically mandate when a bill must be presented to the Governor, appellants failed to state grounds for relief.
The Appellate Division affirmed, finding that judicial review of respondents' actions would intrude into "`the wholly internal affairs of the Legislature' (Heimbach v State of New York, 59 N.Y.2d 891)." (209 AD2d 80, 83.) Notwithstanding a finding of mootness, with the lapse of the 1994 legislative session, the Court invoked the exception to the mootness doctrine and reached the merits (citing Matter of Hearst Corp. v Clyne, 50 N.Y.2d 707, 714-715). The Appellate Division concluded that (1) the issue presented was an internal matter for the Legislature and (2) although a bill passed by both houses of the Legislature and presented to the Governor could not be recalled, the Constitution does not expressly require that all bills passed by both houses be presented to the Governor nor set up a timetable for presentment.
Appellants argue that respondents' practice of retaining bills passed by both houses of the Legislature and thus effectively blocking executive action in approving or vetoing them violates the Presentment Clause of the New York Constitution (art IV, § 7) and the rationale of Matter of King v Cuomo (81 N.Y.2d 247). Appellants argue further that such procedure violates the principles of separation of powers and open, accountable government, and that article IV, § 7 should be read to contain an implied "rule of reason" as to the time for presentment of a bill to the Governor.
Respondents argue that this Court should affirm the order of the Appellate Division because no constitutional direction, law or rule compels the Legislature to present to the Governor a bill which has passed both houses of the Legislature. We disagree with that argument and the courts below.
Article IV, § 7 of the Constitution states, "Every bill which shall have passed the senate and assembly shall, before it becomes a law, be presented to the governor." Implicit in that provision is a requirement that a bill which has passed both houses of the Legislature be presented to the Governor for enactment into law or vetoing within a reasonable time after its passage. We hold that the practice of withholding from the Governor those bills on which both houses of the Legislature have formally acted is violative of article IV, § 7. To hold otherwise would be to sanction a practice where one house or one or two persons, as leaders of the Legislature, could nullify *239 the express vote and will of the People's representatives. This requirement is constitutionally required and would not interfere with the usual and appropriate interaction of the executive and legislative branches in the making of laws.
This holding is also consistent with Matter of King v Cuomo (81 N.Y.2d 247, supra). In King, the Presentment Clause of the New York Constitution (art IV, § 7) was held violated by the bicameral practice of "recalling" or "reacquiring" passed bills after presentment to the Governor, but prior to gubernatorial action on the bill. King concluded that the Legislature's practice "undermine[d] the integrity of the law-making process as well as the underlying rationale for the demarcation of authority and power in this process" (id., at 255). The former recall practice allowed legislators, executive agencies and interested groups additional opportunity to influence and affect bills without public inquiry or examination. The practice of withholding passed bills while simultaneously conducting discussions and negotiations between the executive and legislative branches is just another method of thwarting open, regular governmental process, not unlike the unconstitutional "recall" policy which, similarly, violated article IV, § 7.
Moreover, we expressly reject respondents' argument that the phrase "before it becomes a law" contained in the Presentment Clause is conditional, discretionary or vests in the Legislature "full and unreviewable power over a bill up until the time it chooses to present legislation to the Governor." Contrary to respondents' contention, this Clause does not sanction the practice of withholding bills passed by both houses of the Legislature. Federal cases interpreting the parallel provision of the Presentment Clause of the United States Constitution underscore the Clause's implicit directive (see, US Const, art I, § 7, cl [2]; United States v Munoz-Flores, 495 US 385, 403 [Stevens, J., concurring] ["The Clause states only that bills must be presented to the President"]; see also, Field v Clark, 143 US 649, 672; Immigration & Naturalization Serv. v Chadha, 462 US 919, 946; People ex rel. Peterson v Hughes, 372 Ill 602, 25 NE2d 75, 78 [construing the Presentment Clause of the Illinois Constitution as mandating delivery to the Governor of bills passed]).
Finally, although the practice of withholding bills passed by both houses of the Legislature is not constitutionally authorized, a retroactive ruling in the instant case is not warranted (see, Matter of King v Cuomo, supra, at 256-257).
The Maintenance of Effort Bill should have been presented to the Governor within a reasonable time after it was passed *240 by the Legislature. This conclusion makes it unnecessary to consider the remaining arguments advanced.
Accordingly, the order of the Appellate Division should be reversed, with costs, and judgment granted declaring the practice of retaining bills that have passed both houses of the Legislature unconstitutional prospectively from this date.
Order reversed, with costs, and judgment granted declaring in accordance with the opinion herein.
NOTES
[*] The bill is "[a]n act to amend the education law, in relation to a maintenance of effort requirement for fiscally dependent large city school districts." The purpose of the bill is to require cities with larger school districts (New York, Buffalo, Rochester, Syracuse and Yonkers) to maintain existing levels of per capita spending for the public schools in their cities and not seek to reduce the local contribution by utilizing the State education appropriations.
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-3249
___________
United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
William Martinez, also known as *
William T. Melvin, *
*
Defendant - Appellant. *
*
__________
Submitted: April 15, 2003
Filed: August 12, 2003
___________
Before MORRIS SHEPPARD ARNOLD, BEAM, and MELLOY, Circuit Judges.
___________
MELLOY, Circuit Judge.
William Martinez pled guilty to being an unlawful user of a controlled
substance and a felon in possession of firearms, in violation of 18 U.S.C. §§
922(g)(1), (3), and 924(a)(2). Over Martinez’s objections, the district court imposed
a two-level specific-offense enhancement under U.S.S.G. § 2K2.1(b)(4) because one
of the two firearms was stolen, and a four-level specific-offense enhancement under
U.S.S.G. § 2K2.1(b)(5) because the firearms were used in connection with another
felony offense. Martinez was sentenced to 100 months, with three years supervised
release.
On appeal, Martinez alleges three points of error: (1) that imposition of the §
2K2.1(b)(4) enhancement in Martinez’s case violated his Fifth Amendment due
process rights because the government did not establish that he knew the firearm at
issue was stolen; (2) that the government failed to establish a factual predicate for the
§ 2K2.1(b)(5) enhancement; and (3) that the district court impermissibly double-
counted when it imposed enhancements under both U.S.S.G. § 2K2.1(b)(4) and §
2K2.1(b)(5). We affirm in part and reverse in part.
I.
In a superseding indictment, the government charged Martinez with two counts
of being an unlawful user of a controlled substance and a felon in possession of
firearms, in violation of 18 U.S.C. §§ 922(g)(1), (3), and 924(a)(2). Martinez pled
guilty to Count 2, which relates to Martinez’s conduct and arrest on October 18,
2001. The government dismissed Count 1, which involved a subsequent run-in with
authorities on January 21, 2002, wherein Martinez was arrested while attempting to
steal a car. The district court calculated Martinez’s sentence based solely on Count
2, and our factual recitation of the relevant offense conduct is drawn from the
presentence report.
On October 18, 2001, a citizen reported to police that she had found a black
bag on a road near her residence in Rogersville, Missouri. An officer responded to
the call, and, on opening the bag, discovered two credit cards in the name of Carla D.
Wingo, a .22 caliber pistol, and a 9 millimeter pistol. Also in the bag were a social
security card belonging to William T. Martinez, a scrap book, and miscellaneous
papers from the Missouri Department of Corrections belonging to Martinez.
Not far from where the bag was located, the officer found Martinez standing
alongside his truck. During the ensuing conversation, Martinez told the officer that
-2-
he was missing a bag that contained his papers, identification, and a scrapbook. The
officer noticed clothing and tools in Martinez’s truck. The officer contacted the local
sheriff’s office and was told that Carla Wingo’s residence had recently been
burglarized and that a number of the items in Martinez’s truck, as well as the credit
cards and the .22 caliber pistol, had been stolen during the burglary. As a result,
Martinez was arrested for possession of stolen property.
The district court calculated Martinez’s total offense level at 23, including the
two- and four-level specific offense enhancements challenged in this appeal. This
score, combined with Martinez’s Category VI criminal history, resulted in a
sentencing range of 92 to 115 months. The district court sentenced Martinez to 100
months in prison, and three years supervised release. This appeal timely followed.
II.
We review the district court’s factual findings for clear error and its legal
conclusions concerning the application of the sentencing guidelines de novo. United
States v. Scolaro, 299 F.3d 956, 957 (8th Cir. 2002); United States v. Rohwedder, 243
F.3d 423, 425 (8th Cir. 2001). Martinez’s constitutional claim is reviewed de novo.
United States v. Johnson, 56 F.3d 947, 953 (8th Cir. 1995).
A. U.S.S.G. § 2K2.1(b)(4):
We affirm the district court’s imposition of the two-level enhancement under
§ 2K2.1(b)(4),1 and reject Martinez’s constitutional challenge. The application notes
to § 2K2.1 explain that the enhancement under subsection (b)(4) for a stolen firearm
“applies whether or not the defendant knew or had reason to believe that the firearm
1
U.S.S.G. § 2K2.1(b)(4) states, “If any firearm was stolen, . . . increase by 2
levels.”).
-3-
was stolen . . . .” U.S. Sentencing Guidelines Manual § 2K2.1, cmt. n.19 (2002).
Martinez contends that imposition of this type of strict liability enhancement violated
his Fifth Amendment due process rights, and that the government was constitutionally
required to prove that he knew the firearm was stolen. Although we have held on
several occasions that § 2K2.1(b)(4) does not include a knowledge requirement, we
have never explicitly resolved the issue on constitutional grounds. See United States
v. Hernandez, 972 F.2d 885, 888 (8th Cir. 1992) (affirming enhancement without
reference to constitutional question); United States v. Amerson-Bey, 898 F.2d 681,
683 (1990) (affirming enhancement but expressly declining to reach constitutional
question because the defendant had not raised his constitutional claim before the
district court); United States v. Anderson, 886 F.2d 215, 216 (8th Cir. 1989)
(affirming enhancement without reference to constitutional question).
We now join every other circuit to have addressed the issue and explicitly hold
that § 2K2.1(b)(4) does not violate the constitution.2 We agree that no due process
concerns are implicated by the lack of a scienter requirement because “the upward
adjustment for possession of a stolen firearm does not stand alone as an independent
crime but is part of a sentencing court’s quest to formulate a proper sentence.”
Singleton, 946 F.2d at 26, quoted in Murphy, 96 F.3d at 849. See also Sanders, 990
F.2d at 584 (distinguishing between strict liability crimes and strict liability
enhancements). As such, the enhancement does not alter the statutory maximum
penalty, negate the presumption of innocence or alter the burden of proof for the
underlying offense. Goodell, 990 F.2d at 499-500. “Further, the government has a
legitimate interest in punishing possession of a stolen firearm and placing the burden
2
See United States v. Murphy, 96 F.3d 846, 848-49 (6th Cir. 1996); United
States v. Griffiths, 41 F.3d 844, 845-46 (2d Cir. 1994); United States v. Richardson,
8 F.3d 769, 770 (11th Cir. 1993); United States v. Sanders, 990 F.2d 582, 584 (10th
Cir. 1993); United States v. Goodell, 990 F.2d 497, 499-501 (9th Cir. 1993); United
States v. Schnell, 982 F.2d 216, 219 (7th Cir. 1992); United States v. Mobley, 956
F.2d 450, 452, 459 (3d Cir. 1992); United States v. Singleton, 946 F.2d 23, 27 (5th
Cir. 1991); United States v. Taylor, 937 F.2d 676, 682 (D.C. Cir. 1991).
-4-
upon one who receives a firearm to ensure that the possession is lawful.” Griffiths,
41 F.3d at 845 (citation omitted).
B. U.S.S.G. § 2K2.1(b)(5):
U.S.S.G. § 2K2.1(b)(5 | {
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952 F.2d 1400
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-Appelleev.Terri JUSTIN, Defendant-Appellant
No. 90-50409.
United States Court of Appeals, Ninth Circuit.
Submitted Oct. 8, 1991.*Decided Jan. 13, 1992.
Before FLETCHER, D.W. NELSON and BRUNETTI, Circuit Judges.
1
MEMORANDUM**
2
Terri Justin appeals the district court's denial of her motion to receive credit against her sentence for the time that she was free on bond prior to the commencement of the sentence. In this appeal, Justin argues that pre-trial release on bond subject to travel restrictions and reporting conditions constitutes "custody" under 18 U.S.C. § 3568 so as to entitle her to credit against her sentence. She also contends that the district court erred by issuing its order before Justin had an opportunity to respond to the government's brief and without an attached memorandum of law. Because the district court was without jurisdiction to hear Justin's motion, we affirm.
3
A district court's decision regarding a petition to vacate, set aside, or correct a sentence is reviewed de novo. United States v. Quan, 789 F.2d 711 (9th Cir.), cert. dismissed, 478 U.S. 1033 (1986).
4
Justin does not specify in her brief under what statutory provision she is bringing her motion to correct her sentence. A claim for credit against a federal sentence for time spent in custody prior to the commencement of a sentence is properly characterized as an attack on the execution of a sentence rather than as an attack on the legality of a sentence. See United States v. Espinoza, 866 F.2d 1067, 1071 (9th Cir.1988); United States v. Giddings, 740 F.2d 770 (9th Cir.1984). The proper procedure for review of the execution of a sentence is through a petition for a writ of habeas corpus under 28 U.S.C. § 2241. See Giddings, 740 F.2d at 772; see also United States v. Mares, 868 F.2d 151, 151 (5th Cir.1989) (holding that a claim for credit for time spent free on bond "must proceed via a petition for habeas corpus") (emphasis added).
5
The district court could not construe Justin's motion as a habeas petition because "the writ can only issue from a court with jurisdiction over the prisoner or his custodian." Giddings, 740 F.2d at 772 (citing Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 494-95 (1973)). Accordingly, were Justin to file a habeas petition, she could do so only in the district where she is confined.1
6
AFFIRMED.
*
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a) and Ninth Circuit Rule 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 Ninth Circuit Rule 36-3
1
Moreover, "a federal prisoner is [generally] required to exhaust [her] federal administrative remedies before filing a habeas petition." Tucker v. Carlson, 925 F.2d 330, 332 (9th Cir.1991); see also United States v. Chalker, 915 F.2d 1254, 1256-57 (9th Cir.1990) (stating that prisoners sentenced for crimes committed before November 1, 1987, who are seeking credit for time served must first exhaust administrative remedies through the Bureau of Prisons). Justin's crime was committed in June 1987
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137 Ga. App. 851 (1976)
225 S.E.2d 69
LAUER
v.
BODNER et al.
51528.
Court of Appeals of Georgia.
Argued January 5, 1976.
Decided February 12, 1976.
Rehearing Denied March 8, 1976.
John Genins, for appellant.
Dennis & Fain, Robert E. Corry, Jr., Wade K. Copeland, for appellees.
PANNELL, Presiding Judge.
Sue Lauer, on January 30, 1975, brought an action against John Bodner, a nonresident of the State of Georgia, seeking recovery for personal injury, property damage, medical expenses, loss of earnings and pain and suffering arising out of an automobile wreck which occurred January 31, 1973, when the plaintiff was a passenger in the automobile, belonging to plaintiff, driven by defendant with the plaintiff's permission. The defendant, Bodner, was purportedly served pursuant to the Nonresident Motorist Act. No question relating to that service is involved in this appeal.
Illinois Farmers Insurance Company, from whom the plaintiff had purchased a policy of automobile liability insurance while she was a resident of Fort Wayne, Indiana, was permitted to intervene in said proceeding and set up defenses in order to protect its interest under the policy, if any. No defenses were filed by John Bodner. Illinois Farmers Insurance Company filed four defenses. The first defense denied the allegations as to the negligence of the defendant, Bodner, and the injuries and damage to the plaintiff. The second defense was to the effect that the provisions of Part I of the policy making Bodner an insured, he at the time driving the automobile with permission of the named insured, provided no coverage because of the provisions of exclusion No. 12 "This policy does not apply under Part I . . . to the liability of any insured for bodily injury to . . . the named insured." The third defense was based upon the failure of the defendant, John Bodner, to immediately forward to the insurer the summons and process served upon him. The fourth defense was based upon the failure of the defendant, John Bodner, to cooperate with the insurer. A copy of the policy was attached to the answer as an exhibit.
The insurer made a motion for summary judgment in its favor "on the grounds that there is no issue as to any material fact and this defendant is entitled to a judgment as a matter of law." In support of its motion is attached an affidavit which established the policy involved and that *852 Bodner never sent to the insurer the copy of the summons and complaint, and that he never called upon or requested the insurer to defend him as an insured under the policy. There was no evidence introduced relating to the merits of the action as against the defendant, Bodner. The trial judge sustained the motion for summary judgment and "dismissed" the action as to "defendant, Illinois Farmers Insurance Company." The plaintiff in the court below, Sue Lauer, appealed this ruling. Held:
1. Part I of the policy insured against liability for personal injury and property damage. It also provided that anyone driving with permission of the named insured, plaintiff-appellant, was an insured under the policy. Paragraph 12 of the exclusions provided: "This policy does not apply under Part I; . . . to the liability of any insured for bodily injury . . . to the named insured." This exclusion clearly excludes liability for bodily injuries under the facts of this case. See in this connection Morris v. State Farm Mut. Auto Ins. Co., 88 Ga. App. 844 (1) (78 SE2d 354).
This provision, however, does not exclude liability for property damages; this is excluded under Paragraph 10 of the exclusions to Part I of the policy, which excludes "damage to property (a) owned . . . by the insured, . . ." Under the designation Definition of Insured it is stated "The unqualified word `insured' includes (a) with respect to the described automobile (1) the named insured, . . ." There being no coverage under Part I of the policy for the reasons above given, we conclude that summary judgment as to defense No. 2 was properly granted and makes moot any question as to whether there was lack of coverage under Part I because Bodner failed to cooperate with the insurer by failing to forward the summons and complaint to the insurer which was raised by the third and fourth defenses.
2. However, the appellant contends that she and the defendant have coverage under the Uninsured Motorist Provisions of the policy, Part II thereof, as to injury and damage.
There was no evidence that Bodner carried automobile liability insurance, and the burden being on movant on motion for summary judgment, we will, for the *853 purpose of this case, assume he did not. However, even with such assumption we are of the opinion there was no coverage as claimed under the Uninsured Motorist Provisions of Part II of the policy. Under this provision of the policy the insurer agreed "[t]o pay all sums which the owner or operator of an uninsured motor vehicle would be legally responsible to pay as damages to the insured because of bodily injury sustained by the insured, caused by accident, and rising out of the ownership, maintenance or use of such uninsured motor vehicle" with certain conditions attached not here material. Under definitions, the following appears: "Described automobile means automobile described in the policy declaration for which uninsured motorist insurance is indicated as covered, including a newly acquired automobile or substitute automobile. Uninsured means (1) the named insured or a relative, (2) any other person while occupying an uninsured motor vehicle,. . . with respect to damages he is entitled to recover because of bodily injury to which Part II applies sustained by an uninsured under (1) or (2) above. Insured motor vehicle means (1) the described automobile, provided the actual use thereof is by the named insured or a relative or by any other person with the permission of the named insured, . . . Uninsured motor vehicle means," and then follow various general definitions thereof. Then follows a provision that "the term `uninsured motor vehicle' shall not include: (a) an `insured motor vehicle,' or (b) a motor vehicle owned by the named insured or any resident of the same household . . ." This latter exclusion is valid and in accordance with, or compatible with, our Georgia Uninsured Motorist Statute. See Barras v. State Farm Mut. Auto. Ins. Co., 118 Ga. App. 348, 349 (163 SE2d 759) in which the terms of the policy were similar and the facts as to the parties were the same as those in the present case, and in which it was held: "A Georgia statute (Ga. L. 1963, p. 588, as amended; Code Ann. § 56-407.1 (a)) requires, unless rejected by the insured named in the policy, coverage of the insured for `all sums which he shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle.' In this statute `the term "uninsured motor vehicle" means a motor vehicle, other than a motor *854 vehicle owned by or furnished for the regular use of the named insured, the spouse of any such named insured . . .' Code Ann. § 56-407.1 (b). As applied to the facts alleged the coverage of the policy is consistent with the Georgia statute and does not include liability to the plaintiffs arising out of the permissive use of the insured's automobile by a friend who carried no policy covering its use."
Appellant contends, however, that the contract, construed under the case law and statutes of the State of Indiana where the contract was entered into requires a different conclusion. Paragraph 43 (c) of the Civil Practice Act (Ga. L. 1968, pp. 1104, 1108; Code Ann. § 81A-143 (c)) provides that "A party who intends to raise an issue concerning the law of another State or of a foreign Country shall give notice in his pleadings or other reasonable written notice. The court, in determining such law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the rules of evidence. The court's determination shall be treated as ruling on a question of law." There is nothing in the record sent to this court disclosing that the appellant gave notice in her pleadings or other reasonable written notice of her intent to raise this issue, nor was any evidence adduced as to such laws. Under these circumstances, neither the court below nor this court can take judicial cognizance of the law of the sister state. Independent Order of Puritans v. Cadden, 25 Ga. App. 27 (1) (102 SE 474); Norman v. Sovereign Camp W. O. W., 69 Ga. App. 437 (1) (25 SE2d 887).
3. We, accordingly, apply the laws of this state (Craig v. Craig, 53 Ga. App. 632 (186 SE 755)) and hold there was no coverage under the uninsured motorist provisions of the plaintiff's policy under the facts of this case, and the trial judge was correct insofar as his judgment may have been based upon such lack of coverage. However, because there was no evidence in support of defense number one denying the negligent acts of the defendant Bodner and alleged injuries resulting therefrom, the judgment of the trial court, if it be construed to cover defense number one, is in error. See Brown v. Hilton Hotels Corp., 133 Ga. App. 286, 289 (2) *855 (211 SE2d 125).
Judgment affirmed in part and reversed in part. Bell, C. J., Deen, P. J., Quillian, Clark, Stolz, Webb and Marshall, JJ., concur. | {
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335 F.2d 15
64-2 USTC P 9644
FRIBOURG NAVIGATION COMPANY, Inc., Petitioner,v.COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 72, Docket 28165.
United States Court of Appeals Second Circuit.
Argued Jan. s6, 1964.Decided July 15, 1964.
James B. Lewis, New York City (Theodore Ness, Michael J. Nassau and Paul, Weiss, Rifkind, Wharton & Garrison, New York City, on the brief), for petitioner.
William A. Friedlander, Atty. Dept. of Justice, Washington, D.C. (Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson and Harry Baum, Dept. of Justice, Washington, D.C., on the brief), for respondent.
Before SWAN, MOORE and SMITH, Circuit Judges.
J. JOSEPH SMITH, Circuit Judge.
1
The sole issue presented by this appeal is whether a taxpayer is entitled to a depreciation deduction for the year in which a depreciable asset is sold at more than its depreciated cost. The Tax Court sustained the Commissioner's disallowance of the deduction, and the taxpayer has appealed to this court. We agree with the Tax Court's determination and affirm the judgment.
2
The taxpayer, Fribourg Navigation Co., operated two cargo ships in foreign commerce. One of these was the S. S. Feuer, a Liberty ship purchased in December of 1955 for $469,000. Just prior to purchasing the Feuer, the taxpayer secured a letter ruling from the Engineering and Valuation Branch of the Internal Revenue Service advising that it would accept straight line depreciation of the ship over a useful economic life of three years, subject to change if warranted by subsequent experience. The letter ruling also advised that the Internal Revenue Service would accept a salvage value of $54,000 on the Feuer. This estimate of the Feuer's useful economic life and salvage value, concededly reasonable in December of 1955, was thrown out of kilter by a scarcity of ships resulting from the Suez Crisis of 1956-57, which sharply inflated the values of ships normally considered obsolete. In June of 1957 the taxpayer accepted an offer to sell the Feuer for $700,000, $231,000 more than it had paid for the ship a year and a half before. When the Feuer was delivered to its new owner on December 23, 1957, the contract terms were slightly modified, reducing the purchase price to $695,500.
3
Relying on the letter ruling, the taxpayer deducted the $54,000 estimated salvage value from the $469,000 cost and spread the $415,000 equally over a three year useful life-- from December 21, 1955 to December 21, 1958. This resulted in a daily depreciation of about $378.65. On its income tax returns, the taxpayer claimed the following depreciation deductions for the Feuer:
4
Calendar Year Period of Ownership Depreciation
1955 10 days $ 3,786.50
1956 366 days 138,585.77
1957 357 1/2 days 135,367.24
5
------------
Total $277,739.51
6
On March 7, 1957, prior to the sale of the Feuer, the taxpayer adopted a plan of complete liquidation, which was carried out within 12 months. Since the liquidation came within the sanctuary of Section 337 of the Internal Revenue Code, the taxpayer incurred no tax liability on the capital gain from the sale of the Feuer. For information purposes only, the taxpayer reported a capital gain of $504,239.51 (the difference between the selling price and the adjusted basis after taking a depreciation allowance for 357 1/2 days of 1957). The taxpayer reported a gross income (after cost of operations) of $391,811.31 in 1957. This was reduced to $141,193.35 after deductions of $250,617.96, including $135,367.24 for the depreciation of the Feuer in 1957.
7
The Commissioner disallowed the $135,367.24 deduction in full, taking the position that a taxpayer cannot depreciate an asset during the year its sale reveals that it has not depreciated. At the start of 1957 the Feuer had an adjusted basis of $326,627.73. In December of 1957 it was sold for $695,500. The Commissioner claims Congress never intended to permit further depreciation under such circumstances, and that a depreciation deduction claimed when the taxpayer knows with certainty that the asset has appreciated rather than depreciated must be disallowed as unreasonable. The Commissioner does not seek to recapture the depreciation deductions allowed for 1955 and 1956. He is content with contending only that depreciation disallowance should be limited to the year in which an asset is sold for more than its adjusted basis.
8
Though perhaps logically inconsistent, this position is strongly suggested by the opinion of the Sixth Circuit in Cohn v. United States, 259 F.2d 371 (1958), which first permitted the Commissioner to disallow depreciation deductions on assets sold for more than their adjusted basis. In 1941-42 the taxpayers in Cohn began to operate three flying schools to train pilots under the Army Air Corps Contract Flying School Program. The taxpayers determined that their contracts for operation of the schools would terminate at the end of 1944, and the equipment they had purchased to operate the schools should be depreciated over a useful economic life ending on December 31, 1944. In computing their depreciation deductions, the taxpayers neglected to place any salvage value on the equipment, though operators of similar flying schools used an estimated salvage value of ten percent in establishing their depreciation schedules. One of the schools ceased its operations on August 4, 1944, and its equipment was sold at auction during that month. The property of the other two schools was auctioned off in November of 1944. Because of wartime shortages, the equipment brought substantial sums, exceeding the adjusted basis of the assets at the beginning of 1944. The Commissioner disallowed the depreciation deductions for all the years as excessive and unreasonable. The District Court found that a salvage value of 10% Of the original cost should have been used in computing the depreciation schedules and that the actual sales price should have been substituted for the salvage value in the year in which the asset was sold. Only the latter holding was appealed to the Sixth Circuit, which affirmed the District Court.
9
The holding of Cohn has been variously construed. Some have taken a very narrow view, reading Cohn as holding only that on the peculiar facts the District Court's finding that the salvage value should be redetermined in the year of the assets' sale to reflect the sales price was not clearly erroneous. Others have considered it to lay down a rule of law that the depreciation deduction for the year in which an asset is sold must be adjusted to limit the deduction to the amount, if any, by which the adjusted basis at the start of the year exceeds the sales price. Compare Motorlease Corp. v. United States, 215 F.Supp. 356, 361-64 (D.C.Conn.1963) (rev'd on appeal, 2 Cir., 334 F.2d 617, 1964) and Note, 41 Ore.L.Rev. 159, 165-66 (1962) with Randolph D. Rouse, 39 T.C. 70 (1962); Rev.Rul. 62-92, 1962-1 C.B. 29; and Note, 37 Tex.L.Rev. 787 (1959).
10
Though it could have been more expolicit, we think that the Cohn case adequately supports the Commissioner's position and supports affirmance of the Tax Court's decision in this case. Section 167(a) of the Internal Revenue Code states as a general rule: 'There shall be allowed as a depreciation deduction a reasonable allowance for the exhaustion, wear and tear (including a reasonable allowance for obsolescence) * * * of property used in the trade or business * * *.' Thus the dispute centers about whether it is reasonable to allow a deduction for depreciation in the year in which an asset is sold for more than its adjusted basis. We think such an allowance unreasonable, for its contravenes the basic purpose of the depreciation deduction.
11
Basically, our income tax is a tax on net income, and the expenses of generating income are normally considered deductible from gross income. The purpose of the depreciation allowance is to enable the taxpayer to recover the net cost of a wasting asset used in his trade or business by charging the diminution in the asset's value each year against the gross income of that year. Because our income tax system is based on annual reporting and liability and the taxpayer normally holds wasting assets for more than a year, the proper amount of depreciation to be taken each year must depend on estimates. The proper depreciation allowance 'is that amount which should be set aside for the taxable year in accordance with a reasonably consistent plan (not necessarily at a uniform rate), so that the aggregate of the amounts set aside, plus the salvage value, will, at the end of the estimated useful life of the property, equal the cost * * * of the property * * *' Treasury Regulations, 1.167(a)-1. See also United States v. Ludey, 274 U.S. 295, 300-301, 47 S.Ct. 608, 71 L.Ed. 1054 (1927 | {
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IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
(HEARD AT DYERSBURG)
FILED
March 8, 1999
STATE OF TENNESSEE, ) Cecil Crowson, Jr.
)
Appellate Court Clerk
APPELLEE, )
)
v. ) NO. 02S01-9709-CC-00079
)
CAROLYN L. CURRY, )
)
APPELLANT. )
DISSENTING OPINION
I disagree with the majority's holding in this case that the district attorney
general abused his discretion in denying pretrial diversion. The defendant has
committed an extremely serious offense in this case. She has admitted to
embezzling approximately $27,400.00 from her employer. Her crime was not an
isolated incident but a complicated, calculated, and deliberate criminal scheme
that occurred repeatedly over a course of two years until she was ultimately
caught.
Pretrial diversion is a legislative largess as well as extraordinary relief.
Pretrial diversion relieves criminal defendants of the burden of being tried for or
convicted of a crime for which they are guilty. Once defendants have completed
a diversion program, they are under no legal obligation to disclose their offenses
to prospective employers, and their public records are expunged. Mere eligibility
for diversion should not provide a presumption for program suitability. 1
Defendants, therefore, should at all times carry the burden of establishing
suitability given the extraordinary nature of diversionary relief.
1
Pursuant to Tenn. Code Ann. § 40-15-105, defendants committing extremely serious
offenses such as aggravated assault, voluntary manslaughter, vehicular homicide (not involving
intoxication), kidnapping, robbery, arson, and aggravated burglary may be eligible for pretrial
diversion.
The decision to grant pretrial diversion is within the sole discretion of the
district attorney general, subject to review by the trial court for an abuse of
prosecutorial discretion. Tenn. Code Ann. § 40-15-105(b)(3); State v.
Hammersley, 650 S.W.2d 352, 353 (Tenn. 1983). To find an abuse of discretion
by the prosecutor, a reviewing court must determine that the record is devoid of
any substantial evidence supporting the prosecuting attorney's decision. Id. at
356; State v. Carr, 861 S.W.2d 850, 856 (Tenn. Crim. App. 1993) (emphasis
added) . The prosecution's decision is presumptively correct, and a reviewing
court may not simply substitute its findings for those of the prosecutor. Id.
Accordingly, if the record would support either a grant or a denial the trial court
must defer to the prosecuting attorney's decision. Id. (holding if the record would
support either a grant or denial of pretrial diversion, the trial court must defer to
the prosecutor's discretion).
The pretrial diversion statute does not enumerate specific criteria that a
prosecuting attorney should use when making pretrial diversion determinations.
The legislature apparently recognized the extraordinary relief provided by the
pretrial diversion statute and intended to provide prosecuting attorneys
substantial discretion in making pretrial diversion decisions. This grant of
discretion would presumptively include the broad discretion to determine not only
the relevant criteria and considerations of each case but also the weight to be
afforded the relevant considerations of each diversionary decision.
Courts, however, have judicially imposed general considerations to guide
a prosecuting attorney's decision. In two recent Supreme Court decisions, this
Court delineated the relevant considerations as follows:
Among the factors to be considered in addition to the
circumstances of the offense are the defendant's criminal record,
social history, the physical and mental conditions of the defendant
where appropriate, and the likelihood that pretrial diversion will
2
serve the ends of justice and the best interest of both the public
and the defendant.
State v. Pinkham, 955 S.W.2d 956, 959 (Tenn. 1997); State v. Herron, 767
S.W.2d 151, 155 (Tenn. 1989) (quoting State v. Hammersley, 650 S.W.2d 352
(Tenn. 1983)). These factors are among those that reflect on the defendant's
"amenability to correction" or potential for rehabilitation. The "potential for
rehabilitation," contrary to the majority's assertion, is not a "factor" that must be
clearly articulated and stated in the record. Pinkham, 955 S.W.2d at 959.
In the case now before us, the prosecuting attorney set out the following
reasons in support of the pretrial diversion denial: (1) the long-term and
continuing nature of the offense; (2) the fact that the circumstances of the
offense reveal a systematic scheme to commit crimes which "manifest a criminal
intent for a long period of time" and not a crime of impulse; (3) the magnitude of
the offense, noting the amount of money ($27,368.73) embezzled during a
period from July 1, 1993 to July 11, 1995; (4) the deceitful nature of the criminal
violations; and (5) the deterrent effect of crimes to defraud city or municipal
organizations ("[w]e cannot believe that it would be in the best interests of the
public, the defendant and justice to overlook a criminal scheme of this proportion
and grant pre-trial diversion to the defendant.").
The reasons cited by the prosecutor are well-supported by the record and
have been held sufficient for denials of pretrial diversion in numerous published
opinions involving similar crimes and crimes of a less serious nature. The
prosecutors' decisions to deny diversion in the cases discussed below neither
explicitly weighed the relevant factors nor mentioned the defendant's potential for
rehabilitation, previous criminal record, or social history. Moreover, numerous
3
cases have consistently held that pretrial diversion is inappropriate when the
applicant's criminal intent is sustained or repeated.2
In State v. Helms, 720 S.W.2d 474 (Tenn. Crim. App. 1986), the
defendant was charged with a crime of a continuing nature whereby the
defendant fraudulently obtained $3,271.00 from the State of Tennessee. The
district attorney denied pretrial diversion based on the following reasons as listed
by the court:
1) the long-term, continuing nature of the offense;
2) the deceitful nature of the criminal violations involved;
3) the deterrent effect of prosecution, and
4) the strong public policy against diversion where the State is
defrauded.
Id. at 475. The trial court found the denial to be an abuse of discretion. The
Court of Criminal Appeals reversed, approving the basing of a denial of diversion
on the circumstances surrounding the offense and on deterrence. The court
held that there was substantial evidence in the record to support the denial. Id.
In State v. Holland, 661 S.W.2d 91 (Tenn. Crim. App. 1983), the
defendant was charged with defrauding Madison County by presenting false
weight tickets purporting to represent gravel delivered to the Madison County
Highway Department. The district attorney denied diversion based on the
2
See State v. Lovvorn, 691 S.W.2d 574, 576-77 (Tenn. Crim. App. 1985) (denying
diversion on the basis that the theft of $3,000.00 occurred over an eight-month period and was not
a crim e of im pulse); State v. Poplar, 612 S.W.2d 498, 501 (Tenn. Crim. App. 1980) ("It was not
intended that this extraordinary relief be granted routinely to first offenders but only to those who
can show that they were above-the-average citizens before impulsively committing an offense
. . . ."); see also State v. Holland, 661 S.W.2d 91, 93 (Tenn. Crim. App. 1983) (denying request for
diversion based on extensive criminal activities that were not crimes of impulse but "required
muc h planning , deliberation and co operation ."); State v. Watkins, 607 S.W .2d 4 86 (T enn . Crim .
App. 19 80); Murra y v. State, 586 S.W .2d 839 (Tenn. Crim . App. 1979)).
4
following valid grounds: (1) the offenses involved planning, deliberation, and
cooperation among several people; (2) the crimes involved deception and deceit
and were not crimes of impulse; and (3) the serious nature of the offenses
would be negated by placing the defendant on pretrial diversion. The appellate
court found substantial evidence in the record to support the denial and upheld
the trial court | {
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98 F.Supp.2d 793 (2000)
Lee Novell LAFFITTE,
v.
MAERSK LINE, LIMITED.
No. Civ.A. G-99-331.
United States District Court, S.D. Texas, Galveston Division.
June 8, 2000.
Ronald L. White, White, Mackillop, Houston, TX, for Ron White, mediator.
Richard Lee Melancon, Melancon and Hogue, Friendswood, TX, Michael W. Hogue, Melancon and Hogue, Friendswood, TX, for Lee Laffitte, plaintiff.
James Richard Watkins, Royston Rayzor, Galveston, TX, for Maersk Line, Limited, defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
KENT, District Judge.
This cause came on for a non-jury trial April 17-19, 2000. Having carefully considered *794 all pleadings, the trial record, all exhibits, the credibility of each witness and all post-trial submissions, on the basis of a preponderance of the evidence and applicable law, the Court hereby enters its Findings of Fact and Conclusions of Law.
I. FINDINGS OF FACT
A. NATURE OF THE CASE
1. This is a Jones Act and general maritime law action brought by Lee Laffitte, electrician of the M/V MAERSK CALIFORNIA, against Defendant MAERSK LINE, LTD. ("Maersk"). Plaintiff filed this case alleging that as a result of Maersk's negligence and the unseaworthiness of the M/V MAERSK CALIFORNIA, he sustained low-back, neck, and ankle injuries when he fell off one of the vessel's catwalks on the night of April 18, 1999. Defendant denied that Plaintiff fell aboard its vessel and denies that Plaintiff has suffered injury.
B. PARTIES AND JURISDICTION
1. Plaintiff, Lee Laffitte, is a resident of the State of Alabama. He signed on the MAERSK CALIFORNIA as an electrician in Charleston, South Carolina on March 31, 1999. He departed the vessel, after having been fired by the Chief Engineer and Captain, on April 19, 1999 in Iquique, Chile. The Court finds that on April 18, 1999, the crew and officers of the M/V MAERSK CALIFORNIA, including Plaintiff himself, were in the employ of Maersk, and that Maersk owned and operated the M/V MAERSK CALIFORNIA. Maersk Line, Ltd. is a corporation having its principle place of business in Norfolk, Virginia. It owns and operates oceangoing vessels, including the MAERSK CALIFORNIA.
2. The Court finds this case is properly brought within its admiralty and maritime jurisdiction pursuant to 28 U.S.C. § 1331 et seq. Defendant has asserted a personal jurisdiction defense. By Order dated June 2, 2000, the Court denied Defendant's Motion to Dismiss for Lack of Personal Jurisdiction. The Court herein adopts that Order, and finds that it has jurisdiction over all of the parties, and that proper venue for this suit is in this District and before this Court.
C. LIABILITY
1. Summary of Proceedings and Claims Asserted.
Plaintiff commenced this suit on June 2, 1999, against his employer Maersk, alleging negligence under the Jones Act, 46 U.S.C. § 688, and unseaworthiness of the M/V MAERSK CALIFORNIA under the general maritime law. Mr. Laffitte alleged that on April 18, 1999 he slipped and fell several feet off the CALIFORNIA's starboard catwalk near Bay 24, while he was attempting to climb down the catwalk in the dark. Mr. Laffitte alleged that as a result of his fall, he sustained injuries to the discs in his low back at L3-L4, L4-L5, to both of his ankles, and to a disc in his neck at C5-C6. Defendant hotly contests such allegations.
2. Evidence Reviewed and Resulting Findings.
a. Mr. Laffitte is a thirty-five year old black man from Mobile, Alabama. He completed the ninth grade. He began going to sea in 1986, and has been shipping primarily in the engine department as an electrician since that time. The Court finds that Mr. Laffitte has substantial experience aboard numerous sea-going vessels.
b. Mr. Laffitte joined the MAERSK CALIFORNIA as the Chief Electrician in Charleston, South Carolina on March 31, 1999. Mr. Laffitte was hired by Defendant Maersk out of the Mobile, Alabama Seafarer's International Union ("SIU") hall. Mr. Laffitte was hired as a permanent employee; the Articles of Agreement provided for a four-month, overseas hitch to various ports in South America.
*795 c. As electrician aboard the CALIFORNIA, Mr. Laffitte was primarily responsible for checking and maintaining the temperatures of refrigerated boxes ("reefers"), which made up the bulk of the vessel's cargo. At approximately 8:00 p.m. on the night of April 18, 1999, while in the cargo control room, Mr. Laffitte told Chief Mate Tom McGrath that he was going outside on deck to check the temperature of one of the reefers. At that time, Mr. Laffitte requested permission to turn on the hatch coaming lights for safety, but the Chief Mate refused. After being refused the ability to use the lights, Mr. Laffitte went outside on deck to check the reefer. To do so, he had to climb up a ladder six to eight feet onto a catwalk, walk a few feet in the dark, and then had to climb down into Bay 24 where the reefer was located. It is undisputed that the lighting down inside the bay was very bright. When Mr. Laffitte came out of the bay back onto the catwalk and into the dark, he was temporarily blinded. Mr. Laffitte attempted to climb down the catwalk ladder to the deck. The catwalk that night was more likely than not spattered with grease; the grease was commonly thrown over the deck when the gantry crane operated. The gantry crane had been operated the night before and no one had cleaned up the grease thrown. As Mr. Laffitte attempted to come down the ladder, his right foot slipped in grease at the top of the ladder, causing his hand to slip free of the ladder rail, and causing him to fall six to eight feet to the deck. Mr. Laffitte landed initially on his feet, but then his legs buckled and he fell onto his rear end, then onto his back and right shoulder. Mr. Laffitte felt immediate pain in his neck, low back, right shoulder, and ankles.
After lying there for approximately five minutes, Mr. Laffitte made his way back into the cargo control room. There he spoke with the Chief Mate and told the Mate that he had fallen. The Captain came into the room at that time. Mr. Laffitte asked the Captain if the Captain had seen the fall, to which the Captain replied: "I am not going to be a witness to that." The Captain instructed Mr. Laffitte to see the medical officer. Mr. Laffitte instead went up to his room. On the way, he saw Chief Steward Whitfield, who inquired as to why Mr. Laffitte was so dirty. Mr. Laffitte told Whitfield about the fall. Mr. Laffitte did not see the medical officer because the medical officer was asleep. Mr. Laffitte went to his room, rubbed himself with alcohol, took some Tylenol, but could not sleep. Mr. Laffitte did not receive medical care until the next evening when the vessel docked in Iquique, Chile.
d. Defendant does not dispute that the night of April 18, 1999 was very dark. At trial the Court took judicial notice that there was no moon on April 18, 1999. The Court now finds that April 18, 1999 was a very dark night with no moon and no ambient light. The Court also finds that, when turned on, the hatch coaming lights aboard the CALIFORNIA provide sufficient light for an individual to move about safely at night about the deck of the CALIFORNIA.
e. The Defendant does not dispute that it was Mr. Laffitte's job to check the reefer each night at about 8:00 p.m., and does not dispute that Mr. Laffitte did so on the night he allegedly fell. The Court finds that Mr. Laffitte was acting in the course and scope of his job as electrician aboard the CALIFORNIA on the night of April 18, 1999.
f. Regarding the use of the hatch coaming lights, none of the witnesses for the Defendant disputed that the lights were off on the night of Mr. Laffitte's alleged fall. At trial, the Defendant called Captain John McFadden and Chief Mate Tom McGrath. Both witnesses agreed that it would be safer to have the lights on at night out on deck, but disputed that it would be unsafe to be out on the deck at night without the lights. Two other witnesses, Chief Engineer John McGrath and First Engineer Soucy, also testified in deposition that it is safer to have the lights *796 on at night while out on deck. Chief Engineer McGrath and First Engineer Soucy further conceded that it is safer to climb ladders and check reefers with the lights | {
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77 Mass. App. Ct. 1 (2010)
COMMONWEALTH
v.
RUPERT A. WEEKS.
No. 08-P-1175.
Appeals Court of Massachusetts, Plymouth.
October 16, 2009.
June 10, 2010.
Present: KAFKER, KATZMANN, & RUBIN, JJ.
*2 Kathleen M. O'Connell for the defendant.
Kristin Freeman, Assistant District Attorney, for the Commonwealth.
KATZMANN, J.
The defendant, Rupert A. Weeks, was found guilty by a Superior Court jury of unlawful possession of a firearm without a licence, in violation of G. L. c. 269, § 10(a), and not guilty of unlawful possession of ammunition without a firearm identification card (G. L. c. 269, § 10[h]), and assault by means of a dangerous weapon (G. L. c. 265, § 15B[b]). He then waived his right to a jury trial on the charge of carrying a firearm without a license, subsequent offense. A Superior Court judge found the defendant guilty on that charge. The defendant now appeals from his conviction of possession of a firearm under G. L. c. 269, § 10(a), and possession of a firearm, subsequent offense, under G. L. c. 269, § 10(d).
The defendant contends that the judge's admission of docket sheets to prove prior convictions during the subsequent offense trial violated his confrontation rights under the Sixth Amendment *3 to the United States Constitution. He also raises various trial issues.
1. Certified docket sheets and confrontation clause. During the jury-waived trial on the subsequent offense charge, the Commonwealth introduced two certified copies of conviction (the certified convictions) to prove that the defendant had been convicted of unlawful possession of a firearm on two prior occasions.[1] The defendant's trial counsel objected on the grounds that introduction of the certified convictions violated his Sixth Amendment confrontation rights as recognized in Crawford v. Washington, 541 U.S. 36 (2004) (Crawford). The judge overruled the objection, holding that the certified convictions complied with the requirements of G. L. c. 233, § 76, and were admissible under that statute.[2] We review the judge's decision to determine if an error occurred and whether that error was "harmless beyond a reasonable doubt." Commonwealth v. Rosario, 430 Mass. 505, 511 (1999), quoting from Commonwealth v. Miles, 420 Mass. 67, 73 (1995). See Commonwealth v. Vasquez, 456 Mass. 350, 356 (2010).
In the aftermath of Crawford, this court articulated two reasons in support of our holding that docket sheets did not trigger the right of confrontation. See Commonwealth v. Crapps, 64 Mass. App. Ct. 915, 916 (2005). First, Commonwealth v. Verde, 444 *4 Mass. 279, 280 (2005), held that "a drug certificate is akin to a business record and the confrontation clause is not implicated by this type of evidence." We ruled that a docket sheet, like a drug certificate, is a business record and thus does not trigger the confrontation clause. Commonwealth v. Crapps, supra. Second, we determined that a docket sheet was not testimonial "because authors of prior conviction records are not witnesses against criminal defendants." Id. at 916 n.3, citing People v. Shreck, 107 P.3d 1048, 1060-1061 (Colo. Ct. App. 2004) (docket sheets are business records that are explicitly exempt from the Crawford standard). See Commonwealth v. Maloney, 447 Mass. 577, 591-592 (2006) (holding that G. L. c. 278, § 11A, allowing record of conviction to serve as prima facie evidence of prior conviction, did not violate confrontation clause).
In June, 2009, the United States Supreme Court overturned Commonwealth v. Verde, supra, and held that the admission of certificates of drug analysis violated a criminal defendant's Sixth Amendment confrontation rights. See Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2542 (2009) (Melendez-Diaz). The Supreme Court stated that testimonial hearsay includes affidavits made under "circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Id. at 2531, quoting from Crawford, 541 U.S. at 52. The Court focused on the fact that "under Massachusetts law the sole purpose of the [drug certificate] affidavits was to provide `prima facie evidence of the composition, quality, and the net weight' of the analyzed substance." Id. at 2532, quoting from G. L. c. 111, § 13.
The Commonwealth here argues that the certified convictions are not testimonial hearsay because they qualify as business records. In Melendez-Diaz, supra at 2538, the Supreme Court stated that "[d]ocuments kept in the regular course of business may ordinarily be admitted at trial despite their hearsay status.... But that is not the case if the regularly conducted business activity is the production of evidence for use at trial." The Court also clarified that "public records are generally admissible absent confrontation ... because having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial they are not testimonial." Id. at 2539-2540
*5 Therefore, in order to determine whether the certified convictions are testimonial, we must ascertain whether certified records of convictions are created for the "administration of an entity's affairs" or "for the purpose of establishing or proving some fact at trial." Certified records of convictions are created to establish the fact of adjudication, so as to promote accountability to the public regarding official proceedings and public knowledge of the outcomes of those proceedings. See Boston Herald, Inc. v. Sharpe, 432 Mass. 593, 606 (2000) (criminal court records open to public under the First Amendment as a "check" on the courts). See also Roe v. Attorney Gen., 434 Mass 418, 435 & n.26 (2001) ("[R]ecords of conviction are public records that are constitutionally required to be public"), citing Globe Newspaper Co. v. Fenton, 819 F. Supp. 89, 100-101 (D. Mass. 1993) (First Amendment right to records of convictions). They are used for a number of administrative purposes, including background checks and parole records. See G. L. c. 6, §§ 172C, 172D, 172E, 172F. Unlike drug certificates, docket sheets are not prepared for an upcoming case and are not testimonial since the authors are not witnesses against the criminal defendant.[3] See Commonwealth v. Martinez-Guzman, 76 Mass. App. Ct. 167, 171 n.3 (2010) ("Unlike the certificates at issue in Melendez-Diaz, which are created solely to prove an element of the prosecution's case, [Registry of Motor Vehicles] records are maintained independent of any prosecutorial purpose and are therefore admissible in evidence as ordinary business records under G. L. c. 233, § 78, as well as pursuant to G. L. c. 233, § 76"); Commonwealth v. McMullin, 76 Mass. App. Ct. 904, 904-905 (2010) (admission of court records and record of Registry of Motor Vehicles records did not violate the defendant's Sixth Amendment right of confrontation). See also Commonwealth v. Bowden, 447 Mass. 593, 599 (2006) (no difference between Registry of Motor Vehicles records and court records). Contrast Commonwealth v. Nardi, 452 Mass. 379, 393 (2008), quoting from Commonwealth v. Slavski, 245 Mass. 405, *6 417 (1923) (autopsy reports prepared by "public officers concerning causes and effects involving the exercise of judgment and discretion, expressions of opinion, and making conclusions" are inadmissible testimonial hearsay).[4]
Furthermore, the docket sheets are not testimonial under the two-part inquiry set forth in Commonwealth v. Gonsalves, 445 Mass. 1, 3 (2005), cert. denied, 548 U.S. 926 (2006). First, the docket sheets are not "testimonial per se" because they are not "made in a formal or solemnized form (such as a deposition, affidavit, confession, or prior testimony) or in response to law enforcement interrogation." See Commonwealth v. Simon, 456 Mass. 280, 297 (2010), citing Commonwealth v. Gonsalves, supra at 13. Second, the docket sheets are not "testimonial in *7 fact" because, as we have discussed above, given the purposes for which they are created, and in light of the fact that they are not created for the purpose of any pending litigation, it would not reasonably be anticipated that they would be used against an accused. Compare Commonwealth v. Avila, 454 Mass. 744, 763 n.20 (2009) (hearsay statement in expert report made for purpose of upcoming litigation is testimonial in fact) with Commonwealth v. Simon, 456 Mass. 280, 299 (2010) (hearsay statement by victim to 911 dispatcher for purpose of "resolving the present emergency and not at conducting an investigation" not testimonial in fact), quoting Commonwealth v. Nesbitt, 452 Mass. 236, 248 (2008), and Commonwealth v. Linton, 456 Mass. 534, 550 (2010) (hearsay statement by victim to father "to explain to her father what had happened" not testimonial in fact). In short, certified docket sheets of conviction are distinguishable from drug certificates and do not constitutionally require cross-examination.
Finally, the defendant | {
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Case: 19-20494 Document: 00515400668 Page: 1 Date Filed: 04/30/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 19-20494 FILED
April 30, 2020
Lyle W. Cayce
SONIA GARCIA; PHILLIP GARCIA, Clerk
Plaintiffs - Appellants
v.
WESLEY BLEVINS; CITY OF HOUSTON,
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Texas
Before SOUTHWICK, COSTA, and DUNCAN, Circuit Judges.
STUART KYLE DUNCAN, Circuit Judge:
Phillip Garcia, Jr. was shot and killed by Houston Police Officer Wesley
Blevins in a restaurant parking lot where Blevins was working as a security
guard. Garcia’s parents sued Blevins, claiming he violated Garcia’s
constitutional rights. The district court granted summary judgment for Blevins
because it determined that, while Blevins may have violated the Constitution,
the alleged violation was not clearly established when the shooting occurred.
We agree and AFFIRM.
I.
Garcia was with friends at Bombshells Restaurant and Bar in Houston,
Texas, after going to a Houston Rockets game. Garcia and some friends got into
Case: 19-20494 Document: 00515400668 Page: 2 Date Filed: 04/30/2020
No. 19-20494
an argument with other Bombshells patrons, and eventually restaurant
security—including Officer Blevins, who had a department-approved security
job at the restaurant—asked them to leave. The groups left, but another scuffle
flared up on the restaurant’s outdoor patio. Blevins and another security guard
again told the group to leave, so the group headed to the parking lot.
The fighting continued in the parking lot. Garcia, who had been
challenged to a fight, ran to a friend’s parked car. Garcia’s opponents followed
him. Garcia grabbed a handgun from the back seat of his friend’s car in order
to “scare” the other men. The approaching group saw the handgun, and at least
one of the men tried to rush Garcia. But Garcia fled again and headed back in
the general direction of the restaurant.
Meanwhile, Blevins and other guards, having just broken up the
fighting, were told by a young woman that someone in the parking lot had a
gun. Blevins requested police backup over his radio and went to investigate.
Once outside, Blevins saw Garcia. Garcia was holding a t-shirt in his left hand,
but Blevins could not see Garcia’s right hand. Blevins walked toward Garcia.
He saw Garcia move his right hand from behind his back and realized that
Garcia was holding a pistol.
Blevins unholstered his own gun and ordered Garcia to drop his. Garcia
did not. Instead, he kept walking, passing between two parked vehicles. He
then re-emerged and continued walking toward the restaurant’s dumpster
area. At least two people were standing near the dumpster. Garcia stepped
behind one of them (apparently one of his friends) and tried to get the man to
take the gun from him. The man refused, stepped away from Garcia, and put
his hands up.
There are conflicting stories about what exactly happened next, but it is
undisputed that Garcia never disarmed as instructed. Blevins stated that as
the man stepped away from Garcia, Garcia raised his gun toward Blevins.
2
Case: 19-20494 Document: 00515400668 Page: 3 Date Filed: 04/30/2020
No. 19-20494
Another eyewitness, Jesse Santana, stated that Garcia’s weapon was pointed
down during the entire encounter. Yet another eyewitness, Cesar Gonzalez,
recounted that Blevins “said something” to Garcia, and in response Garcia “put
his hands up in the air.” A third eyewitness, Adam Flores, stated that Garcia
did not raise his hands. Regardless of what happened, at this point Blevins
“engaged” Garcia. He fired multiple shots, hitting Garcia in the chin, chest,
and abdomen. Garcia died on the way to the hospital.
His parents filed this action against the City of Houston and Blevins
under 42 U.S.C. § 1983, alleging excessive force under the Fourth and
Fourteenth Amendments, as well as municipal liability against the City. They
also sought punitive damages. The district court referred the case to a
magistrate judge, who recommended the district court grant summary
judgment for Blevins and the City. As to Blevins, the magistrate judge
concluded that there was a dispute of material fact over whether Blevins used
excessive force against Garcia, but that any constitutional violation was not
clearly established at the time of the shooting. The district court adopted the
magistrate judge’s recommendation and granted summary judgment.
The Garcias timely appealed. 1 They argue that genuine fact questions
precluded summary judgment and that the law was clearly established.
Alternatively, they urge us to revisit this circuit’s approach to qualified
immunity and abandon the “clearly established” prong.
II.
“We review a grant of summary judgment de novo, viewing all evidence
in the light most favorable to the nonmoving party and drawing all reasonable
inferences in that party’s favor.” Ratliff v. Aransas Cty., Texas, 948 F.3d 281,
1On appeal, the Garcias press only the claim against Blevins. They have thus waived
any challenge to the summary judgment for the City. See United States v. Scroggins, 599 F.3d
433, 446–47 (5th Cir. 2010). The summary judgment for the City is therefore affirmed.
3
Case: 19-20494 Document: 00515400668 Page: 4 Date Filed: 04/30/2020
No. 19-20494
287 (5th Cir. 2020) (quoting Gonzalez v. Huerta, 826 F.3d 854, 856 (5th Cir.
2016)). The movant must show “there is no genuine dispute as to any material
fact and [he is] entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
“However, a good-faith assertion of qualified immunity alters the usual
summary judgment burden of proof, shifting it to the plaintiff to show that the
defense is not available.” Ratliff, 948 F.3d at 287 (cleaned up) (quoting Orr v.
Copeland, 844 F.3d 484, 490 (5th Cir. 2016)). Thus, to avoid summary
judgment, the Garcias must point out a genuine dispute of material fact “as to
whether [Blevins’] allegedly wrongful conduct violated clearly established
law.” McCoy v. Alamu, 950 F.3d 226, 230 (5th Cir. 2020) (quoting Brown v.
Callahan, 623 F.3d 249, 253 (5th Cir. 2010)). “We still draw all inferences in
the plaintiff’s favor.” Taylor v. Stevens, 946 F.3d 211, 217 (5th Cir. 2019).
III.
“Qualified immunity protects government officials from civil liability in
their individual capacity to the extent that their conduct does not violate
clearly established statutory or constitutional rights.” Cass v. City of Abilene,
814 F.3d 721, 728 (5th Cir. 2016). It shields “all but the plainly incompetent or
those who knowingly violate the law.” Thompson v. Mercer, 762 F.3d 433, 437
(5th Cir. 2014) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)). We
apply a two-step inquiry. See Winzer v. Kaufman Cty., 916 F.3d 464, 473 (5th
Cir. 2019). First, we ask whether the facts alleged, viewed “in the light most
favorable to the party asserting the injury,” establish that “the officer’s conduct
violated a constitutional right.” Valderas v. City of Lubbock, 937 F.3d 384, 389
(5th Cir. 2019) (quoting Trammel v. Fruge, 868 F.3d 332, 339 (5th Cir. 2017)).
Second, we ask “whether the right was clearly established.” Id. The Garcias
bear the burden of showing that the right was clearly established. See Cass,
814 F.3d at 733. We can analyze the prongs in either order or resolve the case
on a single prong. See Morrow v. Meachum, 917 F.3d 870, 874 (5th Cir. 2019).
4
Case: 19-20494 Document: 00515400668 Page: | {
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Cite as 2016 Ark. 452
SUPREME COURT OF ARKANSAS.
No. CR-16-374
Opinion Delivered December 15, 2016
MICHAEL LEE GEATCHES PRO SE MOTION REQUESTING
APPELLANT FILE FROM DAVID DUNAGIN AND
PRO SE MOTION REQUESTING
V. FILE FROM DAVID MOORE AND
DALE ARNOLD
STATE OF ARKANSAS [CRAWFORD COUNTY CIRCUIT
APPELLEE COURT, NO. 17CR-14-483]
HONORABLE GARY R. COTTRELL,
JUDGE
RESPONSES ORDERED.
HOWARD W. BRILL, Chief Justice
On May 11, 2015, appellant Michael Lee Geatches pleaded guilty to second-degree
sexual assault and was sentenced to 144 months in the Arkansas Department of Correction.
On March 9, 2016, Geatches filed an untimely petition for postconviction relief under
Arkansas Rule of Criminal Procedure 37.1 (2015). In a March 15, 2016 order, the circuit
court denied Geatches’s postconviction petition on the ground that it was untimely, and
Geatches lodged an appeal in this court. Now before us are his pro se motion requesting
the file generated by his trial counsel, David Dunagin, and a second pro se motion requesting
files generated by counsel, David Moore and Dale Arnold.
Cite as 2016 Ark. 452
Geatches filed a motion on May 12, 2016, requesting photocopies of “the entirety
of his file that is in the possession of David Dunnagin [sic], att[orney] at law.” He states that
“Petitioner has requested, by U.S. mail, on 3 occasions a copy of petitioner’s file. As of May
9, 2016[,] no response has been received.” The certificate of service attached to the motion
indicates Dunagin was served with the motion by U.S. Mail.
Geatches also filed a motion on May 20, 2016, in which he sought a copy of his file
from counsel, David Moore and Dale Arnold, who Geatches alleged represented him in
matters involving the Arkansas Department of Human Services.1 Geatches requests the
“entirety of his file with both attorneys [sic] as they are directly related to petitioner’s
criminal case and information is needed for said case.” The certificate of service indicates
that both Moore and Arnold were served with the motion. Both of Geatches’s motions
cited In re Arkansas Supreme Court Committee on Criminal Practice - Arkansas Rule of Appellate
Procedure–Criminal 19, 2016 Ark. 145 (per curiam), Rule 1.16(d) of the Arkansas Rules of
Professional Conduct, and Travis v. Supreme Court Committee on Professional Conduct, 2009
Ark. 188, 306 S.W.3d 3.
Rule 19 of the Arkansas Rules of Appellate Procedure–Criminal states,
(a) A convicted offender who seeks, at public expense, a copy of an appellate
brief, the trial record, or a transcript must file a motion in the Supreme Court
stating that he or she has requested the documents from his or her counsel
and that counsel did not provide the documents. In addition, if the moving
party seeks a photocopy (as opposed to a disk or other electronic medium),
he or she must demonstrate some compelling need for the brief, record, or
transcript.
1
Geatches contends that Moore represented him from March 18, 2014, until
December 4, 2014, and that Arnold represented him from December 4, 2014, until October
2015.
2
Cite as 2016 Ark. 452
(b) A copy of the motion shall be served on counsel who prepared or filed the
documents. Within 20 days of such service, counsel shall file a response. If
the requested documents were not provided to the client, the response shall
either commit to provide the requested documents or provide good cause
why counsel will not provide the documents.
Ark. R. App. P.–Crim. 19(a)–(b).
Rule 19 became effective March 31, 2016, and was promulgated to address a
recurrent issue faced by the appellate courts: convicted offenders request that the appellate
courts provide at public expense a copy of the brief or appellate record that had been
previously filed. See In re Ark. Sup. Ct. Comm. on Crim. Practice – Ark. R. of App. P. Crim.–
19, 2016 Ark. 145 (per curiam); see, e.g., Khabir v. State, 2014 Ark. 369, 439 S.W.3d 679
(per curiam); Mendiola v. State, 2013 Ark. 92 (per curiam).
The scope of Rule 19 is limited. Based on the reporter’s notes, the intent of Rule 19
is to make clear that the party is to first look to his or her former attorney for those materials
because counsel may already possess the requested documents. “Attorneys are the
appropriate first stop for copies . . . .” Ark. R. App. P.–Crim. 19 rptrs. nn. (2016
Amendments). In many cases those documents have already been paid for either by the
client or by the State if the party is indigent.2
2
Notably, indigency alone does not entitle a petitioner to photocopying at public
expense. Moore v. State, 324 Ark. 453, 921 S.W.2d 606 (per curiam). When an appeal has
been lodged in this court, the appeal transcript and other material filed on appeal remain
permanently on file with the clerk of the supreme court. Id., 921 S.W.2d 606. Persons may
review a transcript and other material in the clerk’s office and photocopy all or portions of
it. Id., 921 S.W.2d 606. An incarcerated person desiring a photocopy of an item on file may
write this court and request that a copy be mailed to the prison. Id., 921 S.W.2d 606. All
persons, including prisoners, must bear the cost of photocopying. Id., 921 S.W.2d 606.
3
Cite as 2016 Ark. 452
Rule 19(b) does not make the requirement of counsel’s response to the motion
contingent on counsel’s determination as to whether the motion has merit but instead makes
counsel’s response mandatory. Within twenty days of service of the Rule 19 motion, counsel
shall file a response. See Ark. R. App. P.–Crim. 19(b). “If the requested documents were
not provided to the client, the response shall either commit to provide the requested
documents or provide good cause why counsel will not provide the documents.” Id.
If the attorney does not commit to provide the documents, the convicted offender
may request, at public expense, a copy of an “appellate brief, the trial record, or a
transcript[.]” For the convicted offender to obtain copies at public expense, he or she must
demonstrate a compelling need for the copies.
Geatches also referred to Rule 1.16(d), which is referenced in Rule 19:
(c) An attorney has an obligation under Ark. R. Prof’l Conduct 1.16(d) to
surrender documents such as an appellate brief, record or transcript to the
client. This obligation requires the attorney to provide only what already
exists in his or her possession. But if the attorney possesses paper copies that
have been requested, the attorney must supply those paper copies. The
attorney’s obligation is determined by Ark. R. Prof’l Conduct 1.16(d), and
this rule is not intended to enlarge or diminish the obligation.
Ark. R. App. P.–Crim. 19(c).
Rule 1.16(d) of the Arkansas Rules of Professional Conduct sets out the lawyer’s
responsibility regarding “surrendering of papers and property,” i.e., the client’s file, upon
termination of representation. See Travis, 2009 Ark. 188, 306 S.W.3d 3 (sanctioning of an
attorney who did not surrender documents to the former client).3 A request for documents
3
By per curiam opinion issued this same date, the court adopts Rule 1.19 of the
Arkansas Rules of Professional Conduct, which concerns client files. See In re Amend to Rule
4
Cite as 2016 Ark. 452
pursuant to Rule 1.16(d) of the Arkansas Rules of Professional Conduct and counsel’s failure
to surrender documents is pursued through an ethics complaint with the Supreme Court
Committee on Professional Conduct. In contrast, a Rule 19 motion requesting a copy of a
record or brief is a motion filed in this court and is not a disciplinary action against counsel.
The distinctions between Rule 1.16 of the Arkansas Rules of Professional Conduct
and Rule 19 of the Arkansas Rules of Appellate Procedure–C | {
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-08-00579-CV
The City of Frisco, Texas, Appellant
v.
The Commission on State Emergency Communications; Dorothy Marie Morgan and
Paul Mallett in their Official Capacities; and North Central Texas Council of
Governments, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
NO. D-1-GN-04-003690, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
This case involves the interpretation of Chapter 771 of the Texas Health and Safety
Code, which addresses the State's administration of a 9-1-1 emergency communications system. See
Tex. Health & Safety Code Ann. §§ 771.001-.110 (West 2003 & Supp. 2008). The City of Frisco
("Frisco") joined the State's system in 1989 and began providing 9-1-1 services to its residents in
1991. In 2004, Frisco filed a declaratory-judgment suit against the Commission on State Emergency
Communications ("the Commission") and certain commission officers, seeking a declaration from
the trial court interpreting the statute to say that: (1) Frisco could withdraw from the State's system;
(2) once Frisco withdrew, the Commission could no longer collect an emergency service fee from
Frisco's residents; and (3) upon Frisco's withdrawal, the Commission was required to distribute to
Frisco a portion of the fees the Commission collected from wireless-telephone users.
The parties filed cross-motions for summary judgment, and the trial court granted
partial summary judgment for Frisco, declaring that Frisco could withdraw from the State's system,
and partial summary judgment for the Commission, declaring that even after withdrawal, Frisco's
residents would not be exempted from the State's emergency service fee, and Frisco would not be
entitled to a portion of the wireless-telephone fee. Frisco appealed. Because we find no error in the
trial court's determinations, we affirm the trial court's order.
BACKGROUND In 1987, the Texas Legislature adopted Chapter 771 of the Texas Health and Safety
Code ("the statute"), creating a statewide 9-1-1 emergency communications system and charging
the Commission with the administration of the system. See Tex. Health & Safety Code Ann.
§§ 771.001-.110. Prior to 1987, 9-1-1 systems were administered by local governments,
combinations of local governments, and home-rule municipalities, which together provided services
to about thirty-nine percent of the state's total population. (1) The statute sought to expand the 9-1-1
services to the rest of the state and implement the State's system through twenty-four existing
regional planning commissions that were established under Chapter 391 of the Texas Local
Government Code. See Tex. Loc. Gov't Code Ann. §§ 391.001-.015 (West 2006 & Supp. 2008);
Tex. Health & Safety Code Ann. §§ 771.001(10), 771.055 (West 2003). Communities with
preexisting 9-1-1 systems became "emergency communication districts" (ECDs) under the statute,
and the legislature allowed the ECDs the option of not participating in the State's system. See
Tex. Health & Safety Code Ann. §§ 771.001(3)(A), 771.071(d) (West 2003), § 771.0711(c)
(West Supp. 2008). The legislature also authorized communities to become ECDs under
Chapter 772 of the Texas Health and Safety Code, but they had to do so before January 1, 1988. (2)
See Tex. Health & Safety Code Ann. §§ 771.001(3)(B), 772.104, 772.204, 772.304 (West 2003).
To fund the statewide 9-1-1 system, the legislature initially adopted a two-tiered
approach. First, the legislature authorized the Commission to impose an emergency service fee ("the
land-line fee") on each local exchange access line in the state with the exception of the customers
in an area served by an ECD that was not participating in the State's system. See id.
§ 771.071(a), (d). Second, the legislature authorized the Commission to impose an equalization
surcharge on each customer in the state receiving intrastate long-distance service, including those
customers in an area served by an ECD that was not participating in the State's system. (3) See id.
§ 771.072(a) (West 2003). In 1997, the legislature added a wireless emergency service fee ("the
wireless fee"), authorizing the Commission to impose the fee on each wireless telecommunications
connection in the state. See id. § 771.0711(a). The statute provides that after collecting the wireless
fee each month, the Commission is then required to distribute a portion of the money to each ECD
that does not participate in the State's system. See id. § 771.0711(c).
Frisco is a home-rule municipality. (4) It joined the State's system in 1989 when it
contracted with the North Central Texas Council of Governments ("North Central Council"), one of
the regional planning commissions operating in the state, to begin providing 9-1-1 services to its
residents. In 2003, Todd Renshaw, Frisco's chief of police and the person responsible for overseeing
Frisco's 9-1-1 system, began considering the possibility of Frisco's withdrawal from the State's
system so that it could provide its own 9-1-1 service to its residents. In an effort to determine
whether the Commission would allow such a withdrawal, Renshaw met with the executive
director of the Commission, Paul Mallett, on more than one occasion. Mallett indicated that
there were no statutory provisions that would allow the Commission to permit a city to withdraw
from the State's system.
In November 2004, Frisco filed suit against three parties: the Commission, Mallett
in his official capacity as executive director of the Commission, and Dorothy Marie Morgan in her
official capacity as presiding officer of the Commission. The defendants later filed a petition to join
the North Central Council as a party. Frisco and the Commission filed cross-motions for
summary judgment, and the trial court granted partial summary judgment for Frisco, issuing a
declaration that Frisco could withdraw from the State's system, and partial summary judgment for
the Commission, declaring that once Frisco withdrew, the Commission could continue to collect the
land-line fee from Frisco's residents and was not required to give Frisco a portion of the wireless fee.
Frisco appeals from the summary-judgment order in two issues, asserting that the
trial court erred in declaring that, even after Frisco withdrew from the State's system, (1) the
Commission could continue to assess the land-line fee on Frisco's residents, and (2) the Commission
need not give Frisco a portion of the wireless fee. (5)
STANDARD OF REVIEW
Summary judgments are reviewed de novo. Valence Operating Co. v. Dorsett,
164 S.W.3d 656, 661 (Tex. 2005). When both parties move for summary judgment on the same
issues and the trial court grants one and denies the other, the appellate court considers the summary-judgment evidence presented by both sides, determines all questions presented, and if the
reviewing court determines that the trial court erred, renders the judgment the trial court should have
rendered. Id.
The issues raised in this appeal involve statutory construction, which is a question of
law that we review de novo. State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). In resolving an
issue of statutory construction, we are required, first and foremost, to follow the plain language of
the statute. Texas Health Ins. Risk Pool v. Southwest Serv. Life Ins. Co., 272 S.W.3d 797, 801
(Tex. App.--Austin 2008, no pet.). We read every word, phrase, and expression in a statute as if it
were deliberately chosen, and we presume that words excluded from the statute are done so
purposefully. Gables Realty Ltd. P'ship v. Travis Cent. Appraisal Dist., 81 S.W.3d 869, 873
(Tex. App.--Austin 2002, pet. denied). We must read the statute as a whole, rather than just isolated
portions, giving meaning to the language that is consistent with other provisions in the statute.
Dallas County Cm | {
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Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
SUPREME COURT DOCKET NO. 2013-129
OCTOBER TERM, 2013
State of Vermont } APPEALED FROM:
}
} Superior Court, Chittenden Unit,
v. } Criminal Division
}
}
Jack Wallace } DOCKET NOS. 4485-11-12 Cncr &
517-11-12 Cncs
Trial Judge: Michael S. Kupersmith
In the above-entitled cause, the Clerk will enter:
Defendant appeals from a decision of the superior court, criminal division, denying his
motion to suppress in connection with a charge of driving under the influence of intoxicating
liquor (DUI) and the civil suspension of his driver’s license. We affirm.
On October 23, 2012, defendant was arrested for DUI, in violation of 23 V.S.A.
§ 1201(a)(1). Before his civil suspension hearing, he filed two motions to suppress for purposes
of both the civil suspension and criminal proceedings. The motions challenged the legality of the
stop and the admissibility of the breath test on grounds that the arresting officer did not allow
him to contact a public defender within the thirty-minute period set by statute. The superior
court held a hearing and then issued a decision denying the motions. On March 13, 2013, after
the court issued its decision, defendant entered into a conditional plea on the criminal charge,
reserving his right to appeal the denial of his motions to suppress. On the same day, he filed a
joint notice of appeal from the civil suspension and the criminal conviction.
On appeal, defendant first argues that the arresting officer refused to allow him to call a
public defender before the expiration of the thirty-minute period established in 23 V.S.A.
§ 1202(c), thereby rendering his breath test involuntary and inadmissible. We find no merit to
this argument. As provided in § 1202(c), a person who is asked to take an evidentiary breath test
has a right to consult with an attorney; however, the person must decide whether to submit to the
test “within a reasonable time and no later than 30 minutes from the time of the initial attempt to
contact the attorney” and must make that decision “at the expiration of the 30 minutes regardless
of whether a consultation took place.” Thus, as we stated in State v. Macie, 146 Vt. 28, 31
(1985), “the statutory thirty minutes is the maximum ‘reasonable time,’ not a minimum, in which
to refuse the breath test.”
Here, the arresting officer advised defendant that he had a right to contact either a private
attorney or a public defender to consult on whether to take an evidentiary breath test. Defendant
elected to call his private attorney, and at that point, 12:39 a.m., the officer informed him that the
thirty-minute period had started. Defendant left a voicemail with his attorney at 12:41. At
12:46, the officer informed defendant that he could talk to a public defender for legal advice
without having to use that attorney later. Defendant responded that he would give his attorney a
couple more minutes to call him back. At 12:53, the officer informed defendant that he had
fifteen minutes left to decide whether to take the breath test, at which point he would have to
make a decision. The officer later informed defendant at 1:00 that he had nine minutes left, and
at 1:08 that he had one minute left. With less than one minute left, defendant asked whether the
choice was to call someone provided by the officer. The officer responded that he would have to
decide whether to take the test. Defendant asked what the other options were, and the officer
stated that there were no other options—it would be simply a yes or no. At 1:09, defendant
elected to submit to the test.
These facts demonstrate that defendant was given a reasonable amount of time to consult
with an attorney, but ultimately was unable to do so because of his decision to wait to talk to his
own attorney until it was too late to consult with a public defender. See State v. West, 151 Vt.
140, 144-45 (1988) (“The statutory mandate is fulfilled when reasonable efforts are made to
allow an arrestee to consult privately with counsel.”). Defendant complains that he still had time
left to talk to a public defender when he asked what his options were near the expiration of the
thirty-minute period, but as the trial court found, the time remaining to defendant when he made
his last-minute query was insufficient to contact and consult with an attorney before the
maximum thirty-minute period expired. Moreover, his last-minute query did not plainly
articulate a desire to speak to a public defender, and the officer did not explicitly deny such a
request.
Next, defendant argues that the court erred by not granting his motion to suppress based
on the unlawfulness of the stop. The trial court ruled that the stop was justified based on the
officer’s observations that defendant was speeding and that he drove his vehicle on the yellow
centerline on several occasions. Defendant argues on appeal that: (1) because his vehicle never
crossed the centerline, the officer could not have lawfully stopped him for violating 23 V.S.A.
§ 1031(a) (requiring vehicles to drive on right side of roadway); (2) his operation of the vehicle
did not provide grounds for suspicion of drunk driving; and (3) he could not have been stopped
for speeding because the officer testified that he did not stop defendant for speeding.
“In reviewing a trial court’s decision on a motion to suppress, the court’s findings of fact
must be upheld unless they are clearly erroneous.” State v. Davis, 2007 VT 71, ¶ 5, 182 Vt. 573
(mem.). This Court then determines the legal question of whether the facts as found by the trial
court meet the proper standard to justify the stop. Id. A police officer may make an
investigatory stop of a vehicle based on reasonable and articulable suspicion—more than
unparticularized suspicion but considerably less than proof of wrongdoing by a preponderance of
the evidence—of criminal activity or a traffic violation. Id. ¶ 7. “In determining the legality of a
stop, courts do not attempt to divine the arresting officer’s actual subjective motivation for
making the stop; rather, they consider from an objective standpoint whether, given all of the
circumstances, the officer had a reasonable and articulable suspicion of wrongdoing.” State v.
Lussier, 171 Vt. 19, 23-24 (2000). This standard allows officers to draw on their own experience
and specialized training to determine whether criminal activity has occurred. Davis, 2007 VT 7,
¶ 7. We have held that intra-lane weaving may, but does not necessarily, create a reasonable
suspicion to stop a vehicle; rather, reasonable suspicion is based on the totality of the
circumstances, with the findings of fact remaining within the exclusive province of the trial
court. Id. ¶ 8.
2
We conclude that the record supports the court’s determination that the stop was lawful.
The officer testified that he observed defendant’s vehicle touch the yellow centerline on several
occasions for the one or two miles that the officer followed the vehicle. After admitting into
evidence and viewing the videotape of the stop, the court found that the officer had in fact made
such observations. The officer further testified that touching the centerline is a sign of
impairment based on his experience and training. We agree with the trial court that these facts
justify the stop of defendant’s vehicle, even if defendant’s operation of the vehicle did not
amount to a traffic violation. See State v. Pratt, 2007 VT 68, ¶ 9, 182 Vt. 165 (concluding that
intra-lane weaving on several occasions over five miles was sufficient grounds for lawful stop).
The intra-lane weaving of defendant’s vehicle may not have been dramatic, but the fact that his
vehicle touched the centerline on several occasions provided reasonable suspicion of impaired
operation.
Affirmed.
BY THE COURT:
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
_______________________________________
Beth Robinson, Associate Justice
3
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5930
PAUL WILLIAM NURSE, a/k/a Pablo,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4384
VANESSA FREZER,
Defendant-Appellant.
Appeals from the United States District Court
for the District of South Carolina, at Columbia.
Joseph F. Anderson, Jr., District Judge.
(CR-95-90)
Submitted: September 2, 1997
Decided: October 24, 1997
Before MURNAGHAN, HAMILTON, and MICHAEL,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Robert E. Bogan, NELSON, MULLINS, RILEY & SCARBOR-
OUGH, L.L.P., Columbia, South Carolina; Susan Z. Hitt, Assistant
Federal Public Defender, Columbia, South Carolina, for Appellants.
J. Rene Josey, United States Attorney, Scarlett A. Wilson, Assistant
United States Attorney, Columbia, South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Paul Nurse appeals from his jury convictions and sentence for con-
spiracy to possess with intent to distribute and to distribute cocaine
and cocaine base, in violation of 21 U.S.C. § 841(a)(1) (1994), two
counts of possession with intent to distribute cocaine base, in viola-
tion of 21 U.S.C. § 841(a), and possession of a stolen firearm, in vio-
lation of 18 U.S.C.A. § 922(g) (West Supp. 1997). Vanessa Frezer
appeals from her jury convictions and sentence for possession with
intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a),
and possession of a firearm by an alien, in violation of 18 U.S.C.A.
§ 922(g).1 In this consolidated appeal, Appellants' formal brief raises
four issues. In addition, Nurse has filed a pro se supplemental brief
raising numerous additional claims. Because we find that none of
these claims has merit, we affirm Appellants' convictions and sen-
tences.
_________________________________________________________________
1 Both Nurse and Frezer were also convicted of using or carrying a fire-
arm in connection with a drug trafficking offense, in violation of 18
U.S.C.A. § 924(c) (West Supp. 1997). These convictions were vacated
by the district court under Bailey v. United States, ___ U.S. ___, 64
U.S.L.W. 4039 (U.S. Dec. 6, 1995) (Nos. 94-7448/7442).
2
I.
Since at least 1991, Dexter Pendergrass distributed cocaine in
Chester, South Carolina, and West Virginia, using drugs purchased
initially from sources in Charlotte, North Carolina, and later from
New York City. After deciding to obtain a different source of drugs,
Pendergrass was introduced to Rodney Wade and Nurse by their
mutual friend, Robert Cunningham. At their first meeting, Wade and
Nurse "fronted" Pendergrass an ounce of cocaine for which he was to
pay $1300. Later that night, Pendergrass paid $600, with the remain-
der to be paid the following day.
On March 6, 1995, Pendergrass met with Nurse and a man Nurse
identified as his brother. At that meeting Pendergrass paid the remain-
ing $700, purchased an ounce of cocaine for $1100, and was fronted
two ounces of cocaine base by Nurse.
The following day, Pendergrass was arrested, and he agreed to
cooperate with the police by contacting the source of his cocaine.
Pendergrass made recorded calls to Wade's pager and to Cunning-
ham. Pendergrass told Cunningham and Nurse that he had to throw
away the cocaine that Nurse and Nurse's brother had fronted him on
March 6. Pendergrass did this so that Nurse and Cunningham would
not hear of his arrest and subsequent cooperation. Pendergrass testi-
fied that, when he told Nurse that the cocaine was lost and he had no
money, Nurse became very angry and threatened him with a gun.
Nevertheless, Pendergrass, Wade, Nurse, and Cunningham negoti-
ated a quarter kilogram deal. Pendergrass convinced Nurse that his
friend, actually government agent Rodney Blacknall, was going to
pay Nurse for the lost cocaine and buy an additional nine ounces of
cocaine base. On March 13, Pendergrass, Cunningham, and Blacknall
drove from Chester, South Carolina, to a McDonald's restaurant in
Columbia, South Carolina, to meet with Nurse. Government agents
conducted audio and visual surveillance of the McDonald's parking
lot, and Blacknall wore a wire.
After a brief conversation, Nurse and Cunningham drove away,
leaving Pendergrass and Blacknall at McDonald's. Nurse drove Cun-
ningham to a residence located near Williams Brice stadium. Nurse
3
told Cunningham to get into a different car, a blue Chevrolet, parked
in the residence's driveway. Vanessa Frezer was seated in the front
passenger seat of the vehicle.
After directing Frezer to get into the back seat and Cunningham to
sit in the front passenger seat, Nurse drove back to a parking lot adja-
cent to McDonald's. Cunningham testified that Nurse instructed
Frezer to "reach me that," whereupon Frezer pulled down the top part
of the back seat and handed Nurse a bag containing cookies of
cocaine base. Cunningham testified that he saw a nine millimeter gun
in the secret compartment. Once Frezer handed Nurse the cookies,
Nurse counted out eight of them and gave them to Cunningham.
Nurse then drove the car into the McDonald's parking lot, and
Cunningham entered McDonald's to tell Pendergrass and Blacknall
that he had the drugs. Pendergrass and Blacknall went to Nurse's
vehicle where Blacknall paid Nurse. Pendergrass, Cunningham, and
Blacknall then returned to their vehicle, where Cunnigham produced
the drugs. At that moment, the police moved in to make the arrests.
The Chevrolet was subsequently searched and a firearm was found
in a secret compartment. A bag of cocaine base was found on the
ground under the car. The total weight of the cocaine base recovered
on March 13 was 311.93 grams.
Nurse, Frezer, Cunningham, and Wade were charged in a seven
count superseding indictment.2 Nurse and Frezer's trial lasted for two
weeks. The jury returned guilty verdicts on multiple counts as to each
Defendant. Frezer was sentenced to 151 months imprisonment, fol-
lowed by five years supervised release. Nurse was sentenced to 293
months imprisonment, followed by a term of five years supervised
release. Both Nurse and Frezer challenge their convictions and sen-
tences in this consolidated appeal.
_________________________________________________________________
2 Cunningham tendered his guilty plea prior to trial and testified for the
Government. Wade entered his guilty plea after approximately one week
of trial testimony.
4
II.
During voir dire, the Government used six of its seven peremptory
strikes against African Americans. Nurse and Frezer, who are both
black, challenged two of the Government's strikes at trial alleging
that they were based on race in violation of Batson v. Kentucky, 476
U.S. 79 (1986). We do not find that the trial court clearly erred in
denying Appellants' Batson challenge.
The process for examining an objection to peremptory challenges
under Batson is as follows: (1) a defendant must make a prima facie
showing that the prosecutor has exercised his peremptory challenges
on the basis of race; (2) the burden then shifts to the prosecutor to
articulate a race-neutral reason for excusing the juror in question; and
(3) the trial court must determine whether the defendant has carried
the burden of proving purposeful discrimination. Hernandez v. New
York, 500 U.S. 352, 358-59 (1991). Here, the trial court found that a
prima facie showing of discrimination was made, and the burden then
shifted to the prosecutors to explain their basis for striking the jurors
in question.
The prosecutors stated that Gary Davis had been challenged
because he was casually dressed and "disheveled." The prosecutors
claimed that Angela Lynn was challenged because"she looked care-
fully and longingly" at Nurse, would not make eye contact with the
prosecution, and "seemed to identify" with another female venire per-
son who had a shoplifting conviction.
In evaluating the reasons offered by a prosecutor for exercising a
peremptory challenge, the focus is on the facial validity of the expla- | {
"pile_set_name": "FreeLaw"
} |
Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
8-15-2008
USA v. Fleming
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3640
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"USA v. Fleming" (2008). 2008 Decisions. Paper 649.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/649
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
___________
Nos. 06-3640, 07-2369, and 07-2822
___________
UNITED STATES OF AMERICA
v.
DANIEL FLEMING,
Appellant No. 06-3640
__________
UNITED STATES OF AMERICA
v.
RUSSELL ROBINSON,
Appellant No. 07-2369
__________
UNITED STATES OF AMERICA
v.
CRAIG M. HENDRICKS,
Appellant No. 07-2822
________________________
On Appeal from the District Court
of the Virgin Islands
D.C. Criminal Nos. 04-cr-0005-4
04-cr-0005-2
04-cr-0005-1
District Judge: Honorable James T. Giles
________________________
Submitted Under Third Circuit L.A.R. 34.1(a)
May 6, 2008
Before: RENDELL, FUENTES, and CHAGARES, Circuit Judges.
(Filed: August 15, 2008)
1
____________
OPINION OF THE COURT
____________
FUENTES, Circuit Judge.
In April 2003, a grand jury handed down a twelve count indictment against Craig
Hendricks, Russell Robinson, and Daniel Fleming, along with other co-defendants who
are not involved in this appeal. Hendricks was alleged to be the leader of a large
narcotics-trafficking organization in which the other defendants participated. All three
defendants were convicted and now, separately, appeal their convictions. As a result of
various motions, these appeals were consolidated for our review. For the reasons set
forth below, we will affirm the judgments of conviction.
I.
One of the government’s planned witnesses, Hector Rivera, who was originally
involved in the narcotics conspiracy with the co-defendants and became a confidential
informant (“CI”), provided the government with taped conversations, videos of drug
transactions, and information leading to a wiretap of the co-defendants. Prior to trial,
Rivera was murdered by an unknown person. The District Court then denied the
government’s motion in limine seeking to admit conversations involving Rivera, based on
its reading of Crawford v. Washington, 541 U.S. 36 (2004). The government appealed
that order and we reversed. See United States v. Hendricks, 395 F.3d 173 (3d Cir. 2005)
(“Hendricks I”). The case proceeded to trial and the jury convicted Hendricks, Robinson,
2
and Fleming of three conspiracy counts: to import drugs, to distribute drugs, and to
launder money. In addition, Hendricks and Fleming were convicted of narcotics
possession and distribution, and Hendricks was convicted of three additional counts of
narcotics possession and distribution.
On appeal, each defendant raises separate issues. Hendricks argues that there was
insufficient evidence to support his money laundering conviction, that he was denied
access to counsel because he was held in Puerto Rico during the trial, and that the District
Court erred by admitting Rivera’s tape recorded and video taped statements, and by
admitting all of the statements relating to Rivera without performing an individualized
review of the reliability of each statement. Fleming argues that the transfer of the trial
from St. Thomas to St. Croix violated his due process rights and that there was
insufficient evidence to support his possession and distribution conspiracy conviction, his
drug trafficking conspiracy conviction, and his money laundering conspiracy conviction.
Robinson, who is proceeding pro se on appeal, claims that the District Court did not have
jurisdiction over the case because of the prosecutors’ alleged failure to file their oaths of
office with the clerk of the Virgin Islands District Court, that there was insufficient
evidence to convict him on any count, that the District Court should have acquitted him
because of inconsistent verdict form responses, that he was denied the right to represent
himself during trial, and that there were “[s]tructural and other trial errors.” (Robinson
Br. at 19.)
II.
3
In this opinion, we will focus on the Confrontation Clause issue that Hendricks
raises in his briefs. We will review the question of whether the admission of evidence at
trial was error under the Confrontation Clause de novo. Hendricks I, 395 F.3d at 176.
We previously addressed the Confrontation Clause issue in this case on interlocutory
appeal brought by the government in Hendricks I. In that opinion, we interpreted, for the
first time, the meaning of testimonial evidence as discussed in Crawford. On appeal,
Hendricks argues that our decision in Hendricks I has been cast into doubt after the
Supreme Court’s decision in Davis v. Washington, 547 U.S. 813 (2006). He argues that
two types of evidence were produced at trial in violation of his Confrontation Clause
rights: video tapes made by CI Rivera and testimony by the case agent regarding
statements made by Rivera. His arguments fail, for the reasons set forth below.
First, with respect to the video evidence, the government introduced a videotape at
trial, made by CI Rivera on March 2, 2003. On that day, Rivera was given $23,000 from
the government to purchase drugs from Hendricks. The portions of the videotape shown
at trial showed Hendricks counting money inside his house and Rivera meeting with
Fleming. Rivera returned from Hendricks’s house with three kilograms of cocaine and,
later, most of the money was found in Hendricks’s home. Hendricks argues that Davis
extended the scope of Crawford to cover “tangible items,” and thus the introduction of the
video was error. (Hendricks Br. at 60 (emphasis in brief).)
Hendricks’s claim fails. Only testimonial hearsay is subject to the Confrontation
Clause. Davis, 547 U.S. at 821. In Crawford, the Supreme Court declined to provide an
4
exhaustive definition of what makes a statement testimonial. Id. at 51-52. However, the
court provided examples of testimonial statements, including police interrogations. Id. at
52. In Davis, the Supreme Court explained that even police interrogations are not
testimonial “when made . . . under circumstances objectively indicating that the primary
purpose of the interrogation is to enable police assistance to meet an ongoing
emergency.” Id. at 822. Thus, in essence, Davis worked to narrow the definition of
testimonial evidence, not broaden it.
Hendricks misses the mark by arguing that the only relevant inquiry is whether the
evidence at issue was made for the purpose of prosecution. As noted above, Crawford
declined to provide a comprehensive definition of testimonial. However, it provided
guidance that makes clear that the video in this case is not testimonial. The Crawford
Court explained that the Confrontation Clause applies to:
witnesses against the accused – in other words, those who bear testimony.
Testimony, in turn, is typically a solemn declaration or affirmation made for
the purpose of establishing or proving some fact. An accuser who makes a
formal statement to government officers bears testimony in a sense that a
person who makes a casual remark to an acquaintance does not.
Crawford, 541 U.S. at 51 (quotations and citations omitted). The Court went on to
determine that “[s]tatements taken by police officers in the course of interrogations are . .
. testimonial.” The visual aspect of the video is not testimonial as there is no “statement”
that could be construed to be testimonial. The audio aspect1 is similarly not testimonial as
1
The government claims that it is “highly doubtful [that] the jury could make out any
| {
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United States Court of Appeals
for the Federal Circuit
______________________
CREWZERS FIRE CREW TRANSPORT, INC.,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
______________________
2013-5104
______________________
Appeal from the United States Court of Federal
Claims in No. 11-CV-0607, Judge Susan G. Braden.
----------------------
CREWZERS FIRE CREW TRANSPORT, INC.,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
______________________
2013-5105
______________________
Appeal from the United States Court of Federal
Claims in No. 12-CV-0064, Judge Susan G. Braden.
______________________
2 CREWZERS FIRE CREW TRANSPORT v. US
Decided: February 6, 2014
______________________
CYRUS E. PHILLIPS, IV, Albo & Oblon, L.L.P., of Ar-
lington, Virginia, argued for plaintiff-appellant.
ELLEN M. LYNCH, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, argued for defendant-
appellee. With her on the brief were STUART F. DELERY,
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, BRYANT G. SNEE, Deputy Director, and SHELLEY D.
WEGER, Trial Attorney. Of counsel on the brief was AZINE
FARZAMI, Attorney, Office of the General Counsel, General
Law Division, United States Department of Agriculture,
of Washington, DC.
______________________
Before RADER, Chief Judge, CLEVENGER, and REYNA,
Circuit Judges.
REYNA, Circuit Judge.
Crewzers Fire Crew Transport, Inc. (“Crewzers”) ap-
peals from two related decisions of the United States
Court of Federal Claims dismissing its causes of action for
lack of jurisdiction. See Crewzers Fire Crew Transport,
Inc. v. United States, 111 Fed. Cl. 148 (2013) (“Crewzers
I”); Crewzers Fire Crew Transport, Inc. v. United States,
111 Fed. Cl. 267 (2013) (“Crewzers II”). In each decision,
the trial court held that a blanket purchase agreement
(“BPA”) between Crewzers and the United States Forest
Service was not a binding contract invoking jurisdiction
under the Tucker Act, 28 U.S.C. § 1491(a). For the rea-
sons below, we affirm.
CREWZERS FIRE CREW TRANSPORT v. US 3
I.
On March 30, 2011, Crewzers became one of several
awardees under a BPA with the Forest Service to provide
crew carrier buses. These buses are heavy duty vehicles
used to transport fire crews to wildfires and other disaster
areas located within regional and national wilderness
zones. Two weeks later, on April 11, 2011, Crewzers was
awarded another multiple-award BPA from the Forest
Service, this time to provide flame retardant tents to
disaster areas as needed. Both BPAs established dispatch
priority lists that ranked each awardee’s available re-
sources (e.g., crew carrier buses or flame retardant tents)
within each of six geographic zones. When an emergency
arose, the Forest Service was to submit an order for the
highest-ranked (i.e., lowest-priced) resource available on
the dispatch priority list within the relevant geographic
zone. Once the Forest Service submitted an order for a
particular resource and the contractor decided to accept
the order, a contract was formed and the contractor was
obligated to provide the requested resource in response to
the identified emergency. These BPAs are thus appropri-
ately characterized as frameworks for future contracts—
“a set of ground rules as it were, and no obligations are
assumed by either party until orders are given by the
Government and accepted by the contractor.” Modern
Sys. Tech. Corp. v. United States, 979 F.2d 200, 204 (Fed.
Cir. 1992) (internal quotations omitted).
According to the agreements, “If a Contractor cannot
be reached or is not able to meet the time and date need-
ed, the dispatcher may proceed with contacting the next
resource on the dispatch priority list.” BPA § D.6.5.1.
The Forest Service was also given the discretion to devi-
ate from these dispatch priority lists as needed to respond
effectively to actual fire conditions. The BPAs explicitly
provided that any such deviations would “not be deemed a
violation of any term or condition of this Agreement.”
BPA § D.6.1.c.
4 CREWZERS FIRE CREW TRANSPORT v. US
Because of the sporadic and unpredictable nature of
wildfires and other emergencies, the Forest Service did
not make any guarantee that it would actually place
orders under these BPAs. By the same token, the terms
of the BPAs required Crewzers to accept orders only to
the extent it was “willing and able[,]” as noted in the
clause below:
This solicitation will result in multiple agree-
ments. The dollar limitation for any individual
order is $150,000.00 Since the needs of the Gov-
ernment and availability of Contractor’s resources
during an emergency cannot be determined in ad-
vance, it is mutually agreed that, upon request of
the Government, the Contractor shall furnish the
resources listed herein to the extent the Contractor
is willing and able at the time of order. Due to the
sporadic occurrence of Incident activity, the
placement of any orders IS NOT GUARANTEED.
BPA § B, Pricing & Estimated Quantity (emphasis add-
ed).
In August 2011, the Forest Service notified Crewzers
that it was terminating its BPA for crew carrier buses
after Crewzers allegedly responded to several orders with
unauthorized vehicles and, in one instance, attempted to
bill the Forest Service at a higher-than-authorized rate.
In November 2011, the Forest Service also terminated
Crewzers’s BPA for flame retardant tents after Crewzers
allegedly provided tents that did not meet the BPA’s
specifications or, in some cases, failed to deliver the tents
on time. Crewzers filed separate suits in the Court of
Federal Claims challenging both terminations and assert-
ing, among other things, that the Forest Service acted in
bad faith. In both suits, Crewzers sought a declaratory
judgment that it was entitled to breach of contract dam-
ages, or alternatively, to reinstatement of the BPAs.
CREWZERS FIRE CREW TRANSPORT v. US 5
On May 31, 2013, the Court of Federal Claims issued
nearly identical opinions in both cases granting the
Government’s motions to dismiss for lack of jurisdiction.
The trial court held that the BPAs between Crewzers and
the Forest Service were not binding contracts because
they lacked “the necessary mutuality of consideration
required for an enforceable contract[.]” Crewzers I, 111
Fed. Cl. at 158; Crewzers II, 111 Fed. Cl. at 276. The trial
court therefore concluded that it lacked jurisdiction under
the Tucker Act, 28 U.S.C. § 1491(a).
Crewzers appealed the dismissals to this Court on
July 12, 2013. We have jurisdiction over these appeals,
which were consolidated for argument purposes, pursuant
to 28 U.S.C. § 1295(a)(3).
II.
To invoke the Court of Federal Claims’s jurisdiction
under the Tucker Act, a contractor must first show that
its claims arose out of a valid contract with the United
States. 1 Therefore, the question here on appeal is wheth-
er Crewzers presented a well-pleaded allegation that the
BPAs between Crewzers and the United States constitut-
ed binding contracts sufficient to establish Tucker Act
jurisdiction—a question of law reviewed de novo. See,
e.g., Ridge Runner Forestry v. Veneman, 287 F.3d 1058,
1061 (Fed. Cir. 2002).
“To be valid and enforceable, a contract must have
both consideration to ensure mutuality of obligation
1 Under the Tucker Act, the Court of Federal
Claims has jurisdiction “to render judgment upon any
claim against the United States founded . . . upon any
express or implied contract with the United States[.]” 28
U.S.C. § 1491(a)(1). The Tucker Act also gives the trial
court jurisdiction over claims or disputes arising under
the Contract Disputes Act. See id. § 1491(a)(2).
6 CREWZERS FIRE CRE | {
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133 F.Supp.2d 354 (2001)
AIR PRODUCTS AND CHEMICALS, INC; Tesco Corporation, and Tesco Drilling Technology, Inc., Plaintiff,
v.
MG NITROGEN SERVICES, INC., International Nitrogen Services, L.L.C., and Messer Griesheim Industries, Inc., Defendant.
No. Civ.A. 00-457-SLR.
United States District Court, D. Delaware.
February 28, 2001.
*355 Gregory P. Williams, Richards, Layton & Finger, Wilmington, DE, for plaintiff.
Philip Trainer, Jr., Ashby & Geddes, Wilmington, DE, for defendants.
MEMORANDUM ORDER
SUE L. ROBINSON, District Judge.
At Wilmington this 28th day of February, 2001, IT IS ORDERED that defendant's motion to dismiss or, alternatively, to stay or transfer the case (D.I.18) is granted in part and denied in part. The case shall be transferred to the United States District Court for the Southern District of Texas Houston Division for the reasons that follow:
1. Plaintiff Air Products and Chemicals, Inc. ("Air Products") is a Delaware corporation with its principal place of business in Allentown, Pennsylvania. (D.I.17, ¶ 2) Air products makes and sells membrane equipment for producing gas streams rich in oxygen. (Id.) It sells that equipment for a variety of applications, including the production of nitrogen for on-site injection in oil well drilling applications. (Id.) Air Products customers include plaintiffs Tesco Corporation ("Tesco Corp.") and Tesco Drilling Technology, Inc. ("Tesco Drilling") (collectively, "Tesco"). (D.I.17, ¶ 5) Air Products has agreed to indemnify its customers who are accused of infringement for using Air Products equipment. (D.I. 20 at 6)
2. Plaintiff Tesco Corp. is a Canadian corporation with its principal place of business in Canada. Tesco Corp. is a supplier of oil and gas equipment and drilling services *356 to the oil and gas industry outside the United States. (D.I.17, ¶ 3)
3. Plaintiff Tesco Drilling is a Delaware corporation with its principal place of business in Houston, TX. (D.I.17, ¶ 4)
4. Defendant MG Nitrogen Services, Inc ("MG Nitrogen") was a Delaware corporation with its principal place of business in Malvern, Pennsylvania. (D.I.17, ¶ 6) It no longer exists as a corporate entity. (D.I. 22 at 1 n. 1) It is, however, the listed owner of United States patent nos. B1 5,388,650; 5,749,422; 5,862,869; and 6,041,873 ("the patents-in-suit"). (D.I.17, ¶¶ 9, 11-13)
5. Messer Griesheim Industries, Inc. ("MGI") is a Delaware corporation with its principal place of business in Malvern, Pennsylvania. MGI claims an ownership interest in the patents-in-suit. (D.I.17, ¶¶ 8, 10)
6. International Nitrogen Services, L.L.C. ("INS") is a Delaware L.L.C. with its principal place of business in Houston, Texas. INS is the exclusive licensee of the patents-in-suit. (D.I.17, ¶¶ 7, 14)
7. On April 28, 2000, INS and MGI filed suit in the United States District Court for the Southern District of Texas against Tesco and Tesco Drilling alleging infringement of the patents-in-suit. See International Nitrogen Servs., L.L.C. and MG Indus., Inc. v. Tesco Corporation and Tesco Drilling Tech. Inc., C.A. No (H-00-1432) (S.D.Tex. filed Apr. 28, 2000) ("the Texas case").
8. On May 5, 2000, Air Products filed this declaratory judgment action against MG-Nitrogen, INS and MGI for a declaration of noninfringement and invalidity of the same four patents-in-suit. (D.I.1)
9. On June 30, 2000, MG Nitrogen, INS, and MGI filed a motion to dismiss the complaint outright, stay the proceedings until the resolution of the Texas case, or transfer it to the United States District Court for the Southern District of Texas Houston Division. (D.I.8)
10. On September 8, 2000, Air Products amended its complaint to include Tesco and Tesco Drilling as plaintiffs. (D.I.17)
11. On September 29, 2000, MG Nitrogen, INS, and MGI filed a motion to dismiss the amended complaint outright, stay the proceedings until the resolution of the Texas case, or transfer it to the United States District Court for the Southern District of Texas Houston Division. (D.I.18)
12. NG Nitrogen, INS, and MGI (referred to collectively as "patentee") allege that Tesco Drilling and Tesco Corp. (referred to collectively as "Tesco") directly infringe the process claims of the patents-in-suit. Although the patentee claims that Air Products is a contributory infringer and/or is inducing infringement (D.I. 19 at 4), the patentee has chosen to sue only Tesco for infringement. The patentee argues that it is entitled, as the first to file, to proceed with its lawsuit in Texas.
13. The Federal Circuit has recognized the first to file rule noting that, "as a principle of sound judicial administration, the first suit should have priority, absent special circumstances." Kahn v. General Motors Corp., 889 F.2d 1078, 1081 (Fed. Cir.1989), quoting William Gluckin & Co. v. International Playtex Corp., 407 F.2d 177, 178 (2d Cir.1969).
14. Plaintiffs Air Products and Tesco recognize the first to file rule but insist that the "mere customer" exception to the first to file rule should be invoked. Since Tesco is a customer of Air Products and Air Products must indemnify Tesco for Tesco's infringement, plaintiffs argue that Air Products is the real party in interest and, therefore, should have its choice of forum recognized.
15. The Supreme Court has held, "[i]f the patentee's suit against a customer is brought in a district where the manufacturer cannot be joined as a defendant, the manufacturer may be permitted simultaneously to prosecute the declaratory judgment action elsewhere." Kerotest Mfg. v. *357 C-O-Two Fire Equip. Co., 342 U.S. 180, 186, 72 S.Ct. 219, 96 L.Ed. 200 (1952).
16. Here, however, it is undisputed that Air Products, the manufacturer of a device used to infringe the claims of the patents-in-suit, can be named as a defendant in Texas. (D.I. 12 at 11) Thus, the exception in Kerotest Mfg. does not apply.
17. The Federal Circuit recognized the "customer suit" exception to the first to file rule "where the first suit is filed against a customer who is simply a reseller of the accused goods." Kahn, 889 F.2d at 1081. The court noted that "[t]he customer suit exception is based on the manufacturer's presumed greater interest in defending its actions against charges of patent infringement, and to guard against possibility of abuse." Id.
18. Here, however, Tesco is not merely a reseller of the membrane equipment. The patentee alleges that Tesco directly infringes the patents-in-suit by using Air Products' membrane equipment in nitrogen production units ("NPUs") to generate nitrogen-rich gaseous streams for use as a drilling fluid in oil and gas drilling and to enhance drilling fluids and well completions. (D.I. 19 at 4) Tesco's use of the NPUs, of which the Air Products' membrane equipment is just a part, directly infringes the claims-in-suit, while Air Products' sale of the equipment only induces or contributes to infringement. (Id.)[1]
19. The facts of record do not fit within any exception to the first to file rule. However, since Air Products will ultimately be liable for Tesco's infringement as a direct infringer, contributory infringer, or indemnitor, it has a significant interest in participating in this litigation. This court, therefore, has declaratory judgment jurisdiction pursuant to 28 U.S.C. § 2201.
20. Nevertheless, the interests of judicial economy dictate that an action involving the same patents-in-suit and most of the same parties should not proceed simultaneously in two different district courts.
21. Title 28, section 1404(a) provides:
For the convenience of parties and witnesses, in the interests of justice, a district court may transfer any civil action to any other district or division where it might have been brought.
22. The court concludes that the interests of justice favor that this case be transferred to the United States District Court for the Southern District of TexasHouston Division.
NOTES
[1] The allegations that Air Products only indirectly infringes the patents-in-suit are made on information and belief. The patentee has reserved the right to assert direct infringement of the patents-in-suit by Air Products in the event that evidence is discovered-demonstrating direct infringement.
| {
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COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00312-CR
CLINTON DRAKE DAUGHERTY APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
----------
MEMORANDUM OPINION 1
----------
Appellant Clinton Drake Daugherty appeals from his ten-year sentence for
robbery and fifty-year sentence for aggravated assault. We affirm the trial court’s
judgment.
1
See Tex. R. App. P. 47.4.
I. BACKGROUND
Appellant was charged by indictment with one count of aggravated robbery
causing serious bodily injury to Brandon Barks (count one), one count of
aggravated assault causing serious bodily injury to Victoria Brown (count two),
one count of aggravated assault causing serious bodily injury to Barks (count
three), and one count of aggravated assault with a deadly weapon on Brown
(count four). The indictment also contained two enhancement paragraphs
alleging that Appellant was previously convicted of the felony offenses of
engaging in organized criminal activity and evading arrest with a prior conviction.
The indicted offenses arose from a fight that broke out at Barks’s home, which
involved Appellant, Barks, Brown, and Victoria Dixson, and resulted in Appellant
stealing money from Barks and causing permanent disfigurement to Brown’s lips.
The State later amended count one to allege robbery causing bodily injury
to Barks. Before trial, the State announced it would only proceed on counts one
and two—the robbery of Barks and the aggravated assault of Brown—and that it
would not seek a deadly-weapon finding. 2 Appellant then pleaded guilty to
counts one and two, pleaded true to the enhancement paragraphs, and did not
waive his right to have a jury assess his punishment. See Tex. Code Crim. Proc.
Ann. art. 26.14 (West 2009). Both count one and count two as charged were
second-degree felonies enhanced to first-degree felonies subject to punishment
2
The State later dismissed the remaining two counts.
2
by imprisonment “for life or for any term of not more than 99 years or less than 5
years.” Tex. Penal Code Ann. § 12.32(a) (West 2011); see also id. § 12.42(b)
(West Supp. 2013), §§ 22.02, 29.02 (West 2011).
At the punishment hearing, the amended indictment was read to the jury
and Appellant pleaded guilty to counts one and two and true to the enhancement
paragraphs. The State introduced evidence of the underlying offenses and
evidence that Appellant was prone to violence and was a member of a white-
supremacy gang. Appellant proffered witnesses who testified that Appellant was
not a member of a white-supremacy gang, was a good person, and deserved
leniency. The trial court charged the jury that Appellant had pleaded guilty to
counts one and two and had pleaded true to the enhancement paragraphs and
instructed the jury to “find the defendant guilty as charged in Counts One and
Two of the indictment and to find the enhancement paragraphs true, and to
assess his punishment as herein provided.” See Holland v. State, 761 S.W.2d
307, 313 (Tex. Crim. App. 1988) (explaining propriety of trial court charging jury
to return verdict of guilty and to decide only issue of punishment after defendant
pleads guilty to felony offense before the jury), cert. denied, 489 U.S. 1091
(1989).
During its punishment deliberations, the jury sent out a note asking, “Are
the sentences served concurrently?” See generally Tex. Code Crim. Proc. Ann.
art. 36.27 (West 2006) (prescribing process by which jury may communicate with
trial court). The trial court proposed to answer the question “I cannot answer
3
your question,” to which Appellant did not object. Thus, the written answer was
delivered to the jury. Later, the jury sent out a second note: “Please define
robbery. Who are considered victims in count two?” The trial court’s proposed
answer was: “One, ‘a person commits robbery if, in the course of committing
theft and with intent to obtain or maintain control of the property, he intentionally,
knowingly[,] or recklessly causes bodily injury to another.’ Two, [t]he victim in
count two is Victoria Brown, as alleged in the indictment.” Appellant objected “as
to improper comment on the weight of the evidence [because] it’s not in the
original charge, and it would be an indication that would be improper to pursue
right now.” The trial court overruled Appellant’s objection and presumably sent
its written response to the jury. The jury assessed Appellant’s punishment at ten
years’ confinement for count one and fifty years’ confinement for count two. The
trial court sentenced Appellant accordingly and ordered the sentences to run
concurrently.
Appellant filed a motion for new trial, which was overruled by operation of
law. See Tex. R. App. P. 21.8(c). Appellant now appeals and argues that the
trial court’s response to the jury’s second note was in error, which caused him
some harm.
II. DISCUSSION
A. LAW REGARDING JURY-QUESTION ANSWERS
In evaluating a jury-charge issue, we first determine whether error exists.
Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). If error occurred,
4
whether it was preserved determines the degree of harm required for reversal.
Id. Error in jury instructions, if timely objected to in the trial court, requires
reversal if the error was “calculated to injure the rights of [the] defendant,” which
means no more than that there must be some harm to the accused from the
error. Tex. Code Crim. Proc. Ann. art. 36.19 (West 2006); see Reeves v. State,
No. PD-1711-12, 2013 WL 5221142, at *2 (Tex. Crim. App. Sept. 18, 2013)
(unanimous opinion).
Answers given by a trial court in response to jury questions are considered
supplemental jury instructions; thus, the trial court must comply with the
requirements applicable to jury charges and, accordingly, may not express any
opinion as to the weight of the evidence or otherwise discuss the facts. See Tex.
Code Crim. Proc. Ann. art. 36.14 (West 2007), art. 36.16 (West 2006); Lucio v.
State, 353 S.W.3d 873, 875 (Tex. Crim. App. 2011). Although a trial court may
not single out a particular piece of evidence in its instructions to the jury, this rule
does not “necessarily apply” if the trial court is responding to a question
regarding a subject identified by the jury. Lucio, 353 S.W.3d at 877. Further, a
response that refers to the original jury charge does not equate to an additional
instruction. See Earnhart v. State, 582 S.W.2d 444, 450 (Tex. Crim. App. 1979).
B. ANSWER DEFINING ROBBERY
Appellant first attacks the trial court’s response to the jury’s request for a
definition of robbery. Appellant points to the indictment, which alleged only
knowingly and intentionally as the culpable mens rea, and asserts that the trial
5
court’s definition of robbery, which included recklessly as a culpable mens rea,
was erroneous. This error, Appellant asserts, violated his statutory right to have
the jury assess his punishment for the charge to which he pleaded guilty. See
Tex. Code Crim. Proc. Ann. art. 26.14.
Indeed, the indictment charged Appellant with “intentionally or knowingly”
causing bodily injury to Barks while in the course of committing theft of property.
But in responding to the jury’s general request for a definition of robbery, the trial
court gave the jury the definition of robbery exactly as set out in the penal code:
“[I]f, in the course of committing theft . . . and with intent to obtain or maintain
control of the property, he intentionally, knowingly, or recklessly causes bodily
injury to another.” Tex. Penal Code Ann. § 29.02(a)(1). Although the lesser
culpable mental state of recklessness was not alleged in the indictment,
Appellant’s guilty plea to the greater culpable mental states of intentional and
knowing necessarily included a like plea to the culpable mental state of
recklessness. See Patterson v. State, 46 S.W.3 | {
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92 S.W.3d 270 (2002)
Donald C. EDMISTEN, Respondent,
v.
DIRECTOR OF REVENUE, Appellant.
No. WD 60807.
Missouri Court of Appeals, Western District.
November 19, 2002.
Motion for Rehearing and/or Transfer December 24, 2002.
Application for Transfer Denied January 28, 2003.
*271 Sarah E. Ledgerwood, Asst. Atty. Gen., Jefferson City, for appellant.
Michael Chester McIntosh, Independence, for respondent.
Before HAROLD L. LOWENSTEIN, P.J., JAMES M. SMART, JR., and THOMAS H. NEWTON, JJ.
Motion for Rehearing and/or Transfer to Supreme Court December 24, 2002.
JAMES M. SMART, JR., Judge.
The Director of Revenue appeals the ruling of the trial court ordering reinstatement of the driver's license of Donald Edmisten. Edmisten's license was revoked for refusing a breathalyzer test after he was stopped and arrested for driving while intoxicated. Because we determine that the Director showed that the officer had probable cause to believe Edmisten was driving while intoxicated, we reverse the ruling of the trial court.
Factual Background
The facts are viewed in a light favorable to the decision of the trial court. See Long v. Director of Revenue, 65 S.W.3d 545, 548 (Mo.App.2001). The Director's *272 evidence is, in any event, uncontradicted in this case.
On January 18, 2001, William Tomlin, a deputy sheriff with the Platte County Sheriff's Department, was stopped at about 12:19 a.m. on eastbound 45 Highway at a stop light by the I-29 exit ramp. He observed a black pickup and a red passenger vehicle at the bottom of the exit ramp from northbound I-29. They were not pulled up to the stop line. The pickup was about one car length back, with the red car behind it. The vehicles were waiting to make a left turn on westbound 64th Street (45 Highway). The left turn lane had a green light, but the vehicles did not move. The red vehicle then went around the pickup by going onto the shoulder. The driver of the red vehicle waved at Tomlin. Tomlin rolled down his window, and the driver of the red vehicle made a statement to Tomlin.[1] Tomlin then parked on the shoulder and went to make contact with the driver of the pickup. As Tomlin reached the center island near the pickup, the driver of the pickup, who had been slumped over the wheel of the vehicle, sat up. At that time, he had another green light (after sitting through one full cycle of lights). The pickup then turned left and proceeded onto westbound 64th Street before Tomlin could make contact. Tomlin returned to his vehicle and followed.
As the pickup proceeded, Tomlin observed several incidents of erratic driving. Between Chatham and Cosby on 64th Street, there are two lanes for westbound traffic. The pickup was in the left (inside) lane. The pickup swerved to the right and then swerved back into the left lane. The pickup then swerved to the left over the painted line and then returned to his lane. As the pickup proceeded west to Cosby and 64th, it encountered construction barrels in the left lane. Tomlin observed the pickup come very close to striking the barrels before swerving to the right lane at the last moment. At that point, Tomlin activated his emergency lights and siren and conducted a traffic stop.
Donald Edmisten was operating the pickup. The officer informed Edmisten why he had stopped him. Edmisten denied each of the items the officer stated he had observed. The officer noticed an odor of alcohol, and noticed that Edmisten's speech was slurred. Edmisten said he drank two beers earlier in the evening. Deputy Tomlin asked him if he would be willing to step out and take some field sobriety tests. Edmisten declined, stating he "wasn't taking any tests." Tomlin then asked him to exit his vehicle, and Edmisten replied that he "wasn't getting out." After Tomlin shut off the vehicle to reduce the temptation for Edmisten to drive off, Tomlin told him firmly that he "needed to exit the vehicle." Edmisten then complied. As Edmisten was getting out, Officer Tomlin informed him he was under arrest for driving while intoxicated because of the officer's observations and Edmisten's responses. After the officer informed him he was under arrest, Edmisten asked if the officer could "give him a break," because he had experienced a *273 "rough two years." Officer Tomlin said no.
Officer Tomlin stated that, based on his observations of Edmisten being slumped over the steering wheel through a cycle of traffic lights, observing him weave twice from his lane in different directions, observing him almost strike the construction barrel, and personally observing him and talking with him after the stop, Officer Tomlin formed the opinion that Edmisten was driving while intoxicated.
On cross-examination, Officer Tomlin acknowledged that, apart from the items mentioned in his direct testimony, he did not observe Edmisten do anything improper. The deputy acknowledged he was not familiar with Edmisten's normal speech patterns and did not know his physical capabilities as to balance. The deputy described Edmisten's balance, walking, and turning as "fair," as far as the little he observed in taking Edmisten into custody. The deputy acknowledged that Edmisten was a large man, and that overweight people tend to have more trouble with balance tests. In summary, no substantive contradiction of the direct testimony emerged from the cross-examination.
Edmisten had stipulated before trial that he refused to submit to a chemical test. He also acknowledged he was under arrest at the time of his refusal. Therefore, the only issue to be tried in the case was the issue of whether Deputy Tomlin had reasonable grounds to believe Edmisten was driving while intoxicated.
After the Director's evidence, Edmisten declined to present evidence. Therefore, the only evidence before the court was the testimony of Deputy Tomlin. At the conclusion of arguments, the court stated that "the purpose of the field sobriety test is to provide the probable cause for believing that a driver is intoxicated." The court stated that the Director had not met his burden in the case. The court granted the petition for reinstatement. The Director appeals.
Standard of Review
This court will uphold the decision of the trial court unless there is no substantial evidence to support the decision, the decision is against the weight of the evidence, or the trial court has erroneously declared or applied the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Pursuant to § 577.041 RSMo 2000, a driver whose license has been revoked for refusal to take a breathalyzer test may request a hearing before a court of record. At that hearing, the judge is to determine whether the person was arrested, whether the arresting officer had "reasonable grounds" to believe that the person was driving while intoxicated, and whether the person refused to submit to the chemical test. Berry v. Director of Revenue, 885 S.W.2d 326, 327 (Mo. banc 1994); § 577.041.4. Unless all three of these questions are answered in the affirmative, the court must reinstate the person's license to drive. Id.; § 577.041.5. Because of the stipulation concerning the arrest, and the refusal, the only issue in this case was whether the arresting officer had reasonable grounds to believe the driver was driving while intoxicated.
Section 577.041.4(2)(a) requires a determination of whether the arresting officer had reasonable grounds to believe that the individual was driving while in an intoxicated condition. "Reasonable grounds" and "probable cause" are virtual synonyms. Wilcox v. Director of Revenue, 842 S.W.2d 240, 242 (Mo.App.1992). This was a hearing in a civil breathalyzer refusal and administrative suspension case, and not a hearing in a criminal DWI case; therefore, there was no requirement of *274 proof beyond a reasonable doubt. Rather, the issue was whether the Director presented evidence showing that the officer possessed probable cause to believe that Edmisten was driving while intoxicated. See Id. at 244. "Although mere suspicion is insufficient to establish probable cause, absolute certainty is not required." Id. at 243. The test for probable cause is satisfied "when an officer possesses facts which would justify a person of reasonable caution to believe that an offense has been or is being committed and that the individual to be arrested committed it." Id. at 242. The court stated:
Probable cause is evaluated from the vantage point of a prudent, cautious, and trained police officer at the scene at the time of arrest. In examining the existence of probable cause, courts consider the information possessed by the officer before the arrest and the reasonable inferences drawn therefrom. To form a belief amounting to probable cause, the arresting officer need not possess all the information concerning the offense and the arrestee's participation in it.
Id. at 243 (citations omitted).
Analysis
The Director argues the following facts supported the probable cause determination: (1) Edmisten was slumped onto the wheel of his vehicle through an entire cycle of stop light changes; (2) Edmisten's driving was erratic; (3) Edmisten had an odor of alcohol; (4) Edmisten's speech was slurred; (5) Edmisten's eyes were watery and bloodshot; (6) Ed | {
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148 S.W.3d 711 (2004)
Mark D. JOHNSON, Appellant,
v.
STRUCTURED ASSET SERVICES, LLC, Appellee.
No. 05-03-00075-CV.
Court of Appeals of Texas, Dallas.
October 29, 2004.
*715 John M. Gillis, Dallas, for appellant.
Earl S. Nesbitt, Nesbit & Vassar, L.L.P., Addison, for Appellee.
Before Justices WHITTINGTON, LANG, and LANG-MIERS.
*716 OPINION
Opinion by Justice LANG-MIERS.
This is an appeal from a judgment entered in an interpleader action involving structured settlement payments. Appellant Mark D. Johnson and appellee Structured Asset Services, LLC (Structured Asset) were the competing claimants. Johnson appeals the Final Judgment in favor of Structured Asset, awarding it funds that were placed in the registry of the court by Integrity Life Insurance Company, Inc., pursuant to a structured settlement agreement. Johnson argues that the trial court erred by concluding that he waived an anti-assignment provision in that agreement and that he was estopped from raising that provision as a defense, that the trial court erred in awarding all of the monthly payments to Structured Asset when only a portion of each payment had been assigned, and that the trial court erred by concluding that the underlying assignment was not against public policy. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant Johnson filed and settled a lawsuit seeking recovery for injuries he sustained when he was struck by a car.[1] As part of the settlement, Johnson received a lump sum payment in the amount of $702,000 as well as future structured settlement payments as follows:
(1) $2,000 per month from December 1986 to November 1991 (sixty months);
(2) $2,500 per month from December 1991 to November 1996 (sixty months);
(3) $3,000 per month from December 1996 to November 2001 (sixty months);
(4) $3,500 per month from December 2001 to November 2006 (sixty months);
(5) $4,000 per month from December 2006 to November 2011 (sixty months);
(6) $4,500 per month from December 2011 to November 2016 (sixty months);
(7) $5,000 per month from December 2016 to November 2021 (sixty months); and
(8) $5,500 per month from December 2021 to November 2026 (sixty months).
The terms of the Settlement Agreement also provided that:
[s]aid payments cannot be accelerated, deferred, increased, or decreased by [Johnson] and no part of the payments called for herein or any assets of the Defendant and/or the Insurers is to be subject to the execution or any legal process for any obligation in any manner, nor shall [Johnson] have the power to sell or mortgage or encumber same, or in any part thereof, nor anticipate the same, or any part hereof, by assignment or otherwise.
The Home Insurance Company was obligated to make the future settlement payments to Johnson and purchased an annuity from Integrity to fund those payments. It assigned the obligation to make the payments and the ownership of the annuity to Equitable Life Assurance Society. Johnson approved that assignment. In December 1986, Integrity began making the monthly payments to Johnson.
In February 1998, Johnson saw a television commercial for Stone Street Capital, Inc., advertising that it would pay a lump sum in return for the assignment of future payments due under structured settlements. Johnson called the advertised 1-800 telephone number to learn more about *717 it. Johnson submitted his Application for Sale of Periodic Payments and Stone Street responded with a written offer to purchase a portion of Johnson's future monthly payments. Johnson signed the letter, accepting the offer, and returned it to Stone Street. Stone Street agreed to pay Johnson $132,844 in exchange for Johnson's assignment of his future monthly payments as follows:
(1) $2,500 per month from March 1998 to November 2001 (forty-five months);
(2) $3,000 per month from December 2001 to November 2006 (sixty months); and
(3) $3,500 per month from December 2006 to February 2011 (fifty-one months).
These assigned monthly payments were $500 per month less than the total of each monthly payment due to Johnson under the structured settlement and did not include assignment of future payments after February 2011. Stone Street agreed to receive the total monthly payment and send Johnson the $500 due to him each month. Johnson signed the documents that Stone Street sent to him.[2]
Stone Street wired four payments totaling $130,344 to Johnson's bank account pursuant to the written wiring instructions.[3] Johnson used $83,000 to buy a house and $17,000 or $18,000[4] to complete the loan payments on his truck.
In March of 1998, Stone Street assigned the Annuity Payment Purchase Agreement with Johnson to Settlement Trust with Stone Street as servicer and agent for Settlement Trust.
On April 20, 1998, Equitable received a letter addressed to Integrity from Johnson changing the beneficiary of his policy to the "Mark D. Johnson Trust" with the address of 18351 Kuykendahl, No. 251, Spring, Texas XXXXX-XXXX, which is the address for Stone Street's lock box.[5] The letter did not mention Johnson's assignment of the settlement proceeds to Stone Street. Equitable confirmed these changes and notified Integrity to make the change. Stone Street received the eleven monthly payments from April 1998 to February 1999 and sent $500 of each monthly payment to Johnson.
In February 1999, without contacting Stone Street, Johnson faxed a letter to Integrity directing that the monthly payments should go to his residence instead of to Stone Street's lock box. As a result, Johnson received four of the monthly payments from March to June 1999.[6] In June *718 1999, Stone Street sued Johnson in the Circuit Court of Montgomery County, Maryland, in a case styled Stone Street Capital, Inc. v. Mark D. Johnson, Civil No. 200298. Johnson was personally served with the Maryland lawsuit on June 26, 1999. The Maryland court granted a Preliminary Injunction on July 7, 1999, ordering Johnson to stop redirecting any of the monthly payments to himself and directing Integrity to send the monthly payments to Stone Street's lock box in Spring, Texas. Johnson did not appear or take any action in the Maryland lawsuit and did not comply with the orders entered by the Maryland court. On July 24, 2000, the Maryland court entered a Default Judgment and Order against Johnson and awarded Stone Street damages and injunctive relief as well as the periodic monthly payments.[7]
Integrity attempted to comply with the Maryland Judgment by making the monthly payments to Stone Street. However, Johnson demanded that Integrity send him the monthly payments and threatened to sue if it ignored his instructions. Johnson also submitted a change of address form to the U.S. Postal Service directing that items sent to him care of Stone Street's lock box at 18351 Kuykendahl, No. 251, Spring, Texas XXXXX-XXXX be sent to his residence at 95 Leesburg, Texas 75451. In June of 2002, Structured Asset took over Stone Street's position as servicer and agent for Settlement Trust.
Eventually, both Structured Asset and Johnson were demanding that Integrity send them the payments. As a result of these competing demands, Integrity filed this interpleader action on September 4, 2001, naming Johnson and Stone Street as interpleader defendants. Integrity also deposited $27,000, the sum of the annuity benefits subject to the competing claims, with the Clerk of the Court. On October 15, 2001, Johnson filed his Original Answer generally denying the allegations and asserting a general claim to the funds. On November 29, 2001, Structured Asset filed its Plea in Intervention and Original Cross Claim. Johnson did not oppose Structured Asset's intervention. Integrity filed its Non-Suit of Stone Street.
On July 12, 2002, Johnson filed his unverified First Amended Original Answer asserting several affirmative defenses. Johnson did not specifically plead contractual anti-assignment language as an affirmative defense.
At mediation, Johnson and Structured Asset settled with Integrity and agreed that Integrity would be dismissed with prejudice from the interpleader action.[8]
The settlement agreement between Johnson, Structured Asset, and Integrity left one issue remaining for the trial court to decide: Who was entitled to receive the interpleaded funds, Structured Asset or Johnson? On October 22, 2002, after a one day trial, the trial court rendered a Final Judgment in favor of Structured Asset *719 awarding it all of the funds in the registry of the court, including any interest accrued on the funds, approximately $60,500, but less the $6,000 in attorneys' fees to be paid to Integrity. The Final Judgment also awarded Structured Asset the right to receive monthly payments as follows:
(1) $3,000 per month from August 19, 2002 to November 2006 (fifty-two months); and
(2) $3,500 per month from December 2006 to February 2011 (fifty-one months).
The trial court issued Findings of Fact and Conclusions of Law on November 19, 2002. Johnson appeals the Final Judgment entered in favor of Structured Asset.
II. ANTI-ASSIGNMENT PROVISIONS
In his first issue on appeal, Johnson argues that the trial court erred when it concluded that he waived the anti-assignment provision in the settlement agreement and that he was estopped from raising the anti-assignment clause as a defense. Struct | {
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193 P.3d 84 (2008)
222 Or. App. 96
STATE
v.
RICHARDSON-GRZYCH.
NO. A131113.
Court of Appeals of Oregon.
August 20, 2008.
Affirmed without opinion.
| {
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138 Pa. Commonwealth Ct. 475 (1991)
588 A.2d 584
CAPITAL CITY LODGE NO. 12, FRATERNAL ORDER OF POLICE, Appellant,
v.
The CITY OF HARRISBURG and The Civil Service Board, Appellees.
Commonwealth Court of Pennsylvania.
Argued October 31, 1990.
Decided March 19, 1991.
Petition for Allowance of Appeal Denied August 26, 1991.
*477 Anthony C. Busillo, II, Law Firm of Gary M. Lightman, Harrisburg, for appellant.
Bradley C. Bechtel, City Solicitor, Harrisburg, for appellees.
Before CRAIG, President Judge, and DOYLE, PALLADINO, McGINLEY, PELLEGRINI, KELLEY and BYER, JJ.
PELLEGRINI, Judge.
Capital City Lodge No. 12, Fraternal Order of Police (FOP) appeals from an order of the Court of Common Pleas, Dauphin County, which denied the FOP's Motion for Peremptory Judgment in Mandamus and sustained the City of Harrisburg's (City) and the Civil Service Board's (Board) preliminary objections.
On November 16, 1981, the Pennsylvania Human Relations Commission (PHRC) filed a complaint against the City, alleging that the City, in its employment practices within the police department, was engaged in patterns or practices which discriminated on the basis of race and sex with respect to tenure, terms, condition and privilege of employment in violation of Sections 5(a), (d) and (e) of the Pennsylvania Human Relations Act (Act), Act of October 27, 1955, P.L. 744, as amended, 43 P.S. § 955(a), (d) and (e). To avoid litigation, the City entered into a Conciliation Agreement (Agreement) with the PHRC on October 29, 1984.[1]*478 Under the terms of settlement in the Agreement, the City agreed that its goal was to have a police force that was racially and ethnically representative of the population it served, as well as reflective of the sexual composition of the community it served.[2] No specific method by which the City was to achieve this goal was set forth in the Agreement. Such compliance was left up to the City to achieve.
In an effort to comply with the goals of the Agreement, the City adopted a "dual list" procedure to fill open positions. The way this procedure operated was to rank and place the names of all minority and female officers who qualified on a minority list, and to rank and place the names of all majority officers who qualified on a separate majority list. Whenever a vacancy occurred for a particular rank, the Chief of Police would present three names to the Mayor, alternating from each of the eligibility lists. If a vacancy was filled by an officer whose name was on the majority list, the next vacancy would be filled by an officer whose name was on the minority list.
As a result of the Board's certification of two eligibility lists for promotions to the positions of Corporal and Lieutenant, and the posting of these two lists on August 2, 1989, the FOP filed with the trial court a Complaint In Mandamus *479 And For Declaratory Relief. The Complaint alleged that the use of a single list was mandated pursuant to Section 4406 of The Third Class City Code,[3] and requested the court to declare the promotional lists certified by the Board illegal and invalid. The City filed Preliminary Objections in the Nature of a Demurrer, alleging that the FOP had not stated a cause of action, because the FOP had not shown a clear right to relief, had other adequate remedies at law, and had not joined all other interested parties. The FOP then filed a Motion for Peremptory Judgment in Mandamus, which incorporated the Complaint In Mandamus And For Declaratory Relief. The trial court denied the FOP's Motion for Peremptory Judgment in Mandamus and sustained the City's Preliminary Objections, finding that a mandamus was to be granted only when there was no other remedy at law.[4] Because the current collective bargaining agreement contained a provision regarding promotions subject to grievances, and the FOP could have filed a complaint with the Pennsylvania Labor Relations Board (PLRB), there were other remedies available to the FOP. The FOP then filed the present appeal based on the trial court's order.[5]
The issues now before us are whether the trial court erred in sustaining the City's Preliminary Objections based on its conclusion that there were other remedies available to the FOP for addressing the City's usage of a dual list system, and if so, whether the use of a dual list system *480 violates Section 4406 of The Third Class City Code.[6]
When considering preliminary objections in the nature of a demurrer, we accept as true all well-pleaded material facts in the complaint as well as all reasonable inferences that may be drawn from those facts. Stein v. Richardson, 302 Pa.Superior Ct. 124, 448 A.2d 558 (1982). Preliminary objections should be sustained and a complaint dismissed only in cases that are clear and free from doubt that the law will not permit recovery by the plaintiff. Donnelly v. DeBourke, 280 Pa.Superior Ct. 486, 421 A.2d 826 (1980).
The FOP contends that the trial court erred in sustaining the City's Preliminary Objections because the FOP was clearly entitled to relief since there were no other remedies available to address the issue of whether the dual list system was an appropriate means of determining which officers would be promoted. Specifically, the FOP argues that the grievance procedure under the collective bargaining agreement was not available as a remedy, because an arbitrator would have been limited to interpreting the terms of the agreement and would have had no authority to determine whether the rules and regulations regarding promotions were lawful. We disagree.
Article XXI of the collective bargaining agreement provides the following regarding promotions:
*481 All promotions in the Police Bureau will be made from within the ranks of the paid members of the Police Bureau and shall be made by competitive examinations administered by the appropriate Civil Service Board, and the regulations of the Civil Service Board shall be established and copies made available to all members of the Police Bureau indicating the basis upon which eligibility is to be determined.
Article XX, Section 1 of the collective bargaining agreement provides that any dispute arising out of the interpretation of the contract shall be subject to arbitration:
Any disputes arising under this Agreement relating to interpretations or applications of the terms and conditions of this Agreement shall be subject to arbitration in accordance with the arbitration provisions of this Agreement, and any award pursuant to any such arbitration shall be final and binding upon the City and the FOP, and shall not be subject to appeal or review. (Emphasis added.)
Because Article XXI refers to all promotions made by the Police Bureau, any concerns regarding the newly implemented dual list promotional system, including whether it is legally permissible, would be an appropriate dispute for grievance or arbitration and interpretation pursuant to Articles XXI and XX of the collective bargaining agreement.[7] The applicability of arbitration is further warranted by Section 903 of the Public Employe Relations Act, Act of July 23, 1970, P.L. 563, 43 P.S. § 1101.903, which provides that arbitration of disputes or grievances arising out of the *482 interpretation of the provisions of a collective bargaining agreement is mandatory. Therefore, the FOP's concern regarding the dual list system could be interpreted under the collective bargaining agreement, because filing a grievance or arbitrating the matter would be mandatory.
The trial court also found that the FOP had an additional remedy for determining the validity of the dual list system by filing a complaint with the PLRB. However, the FOP argues that such a remedy was not available. The FOP contends that the PLRB has no authority to rule on the legality of civil service procedures, to interpret the state civil service laws or to rule on issues involving the interpretation of the Human Relations Act. Again, we disagree.
The Pennsylvania Labor Relations Act provides two avenues for the determination of the FOP's dispute or to aid in resolution of that dispute. First, pursuant to Section 8(a) of the Pennsylvania Labor Relations Act (Act), Act of June 1, 1937, P.L. 1168, as amended, 43 P.S. § 211.8(a), the PLRB is empowered to prevent any person from engaging in any unfair labor practice listed in Section 6 of the Act, 43 P.S. § 211.6. Under Section 6(1)(c) of the Act, it is an unfair labor practice to discriminate with regard to promotion. Therefore, the PLRB would be empowered to determine whether the dual list system was discriminating against majority officers. Second, pursuant to Section 2 of the Act of June 24, 1968 (commonly referred to as Act 111), P.L. 237, 43 P.S. § 217.2, it is the duty of public employers and their policemen and firemen employees to exert every reasonable effort to settle all disputes by engaging in collective bargaining in good faith and by entering into settlements by way of written agreements and maintaining the same. Because the Pennsylvania Labor Relations Act is to be read in pari materia with Act 111,[8] the PLRB would have jurisdiction over the FOP's dispute regarding the dual list system of promotions if bargaining was required regarding *483 the usage of the dual list system and the City, as the employer, refused to bargain.
Because the FOP failed to grieve its complaint pursuant to the collective bargaining agreement or file a complaint against the City with the PLRB for unfair labor practices, we find that the trial court properly determined that the FOP had not utilized all of | {
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125 Ill.2d 267 (1988)
531 N.E.2d 355
LINDSAY STALLMAN, Appellee,
v.
CLARENCE YOUNGQUIST et al. (Bari Stallman, Appellant).
No. 64957.
Supreme Court of Illinois.
Opinion filed November 21, 1988.
Williams & Montgomery, Ltd., of Chicago (Barry L. Kroll, Timothy V. Hoffman, John D. Daniels, Lloyd E. Williams, Jr., and Mark A. Miller, of counsel), for appellant.
*268 George B. Collins and Christopher Bargione, of Collins & Bertelle, of Chicago, for appellee.
Shaun McParland, of Tressler, Soderstrom, Maloney & Priess, of Chicago, for amicus curiae Illinois Association of Defense Trial Counsel.
Appellate court reversed; circuit court affirmed; cause remanded.
JUSTICE CUNNINGHAM delivered the opinion of the court:
Plaintiff, Lindsay Stallman, brought suit by her father and next friend, Mark Stallman, against defendant Bari Stallman and codefendant Clarence Youngquist (not a party to this appeal) for prenatal injuries allegedly sustained by plaintiff during an automobile collision between Bari Stallman's automobile and the automobile driven by Clarence Youngquist. Defendant Bari Stallman is the mother of plaintiff. Defendant was approximately five months pregnant with plaintiff and was on her way to a restaurant when the collision occurred.
This case has been before the circuit court of Cook County twice, and also twice before the appellate court, in Stallman I (129 Ill. App.3d 859) and Stallman II (152 Ill. App.3d 683). The Stallman II court reversed the circuit court, which had granted defendant's motion for summary judgment. Defendant filed a petition for leave to appeal from the decision in Stallman II pursuant to Supreme Court Rule 315 (107 Ill.2d R. 315), which was granted. There are two issues on appeal: the status of the parental immunity doctrine in Illinois and the tort liability of mothers to their children for the unintentional infliction of prenatal injuries. For the reasons developed below, this court does not recognize a cause of action brought by or on behalf of a fetus, subsequently born alive, against its mother for the unintentional infliction of prenatal injuries. This decision requires us to hold that the circuit court was correct when it granted *269 defendant's motion for summary judgment. Therefore, it is unnecessary for this court to reach the issue concerning the status of the parental immunity doctrine.
CASE BACKGROUND
Plaintiff brought a three-count complaint in the circuit court of Cook County. Counts I and III are not involved in this appeal and are presently pending in the circuit court. Count II of plaintiff's second amended complaint, the subject matter of this appeal, charged defendant with negligence, the direct and proximate result of which caused the fetus (the unborn plaintiff) to be thrown about in the womb of her mother (defendant) resulting in serious and permanent injury to plaintiff.
Defendant's motion to dismiss was granted in the circuit court. Plaintiff appealed this decision to the appellate court in Stallman I. Defendant argued to the Stallman I court that no Illinois court had ever considered the question whether a mother could, on any grounds, be sued by her subsequently born child for injuries sustained as a result of the mother's acts or omissions during pregnancy. In response to defendant's argument that public policy considerations militate against imposing civil liability through the tort damages system on women who become mothers, the Stallman I court expressed that in its "opinion, the right of the child to be compensated for her injuries is not outweighed by considerations of public policy." (129 Ill. App.3d at 865.) The Stallman I court then stated that it did "agree with plaintiff * * * that the parent-child tort immunity doctrine should not be applied to this case so as to defeat plaintiff's cause of action for negligence against her mother" (129 Ill. App.3d at 862), and that "[i]n our opinion, plaintiff should be given the opportunity to prove whether defendant Stallman's act of driving to a restaurant was not an act arising out of the family *270 relationship and directly connected with family purposes and objectives" (129 Ill. App.3d at 864).
On remand, the circuit court granted the defendant's motion for summary judgment. Plaintiff appealed this decision to the appellate court. Defendant argued that stare decisis and the doctrine of the law of the case precluded the Stallman II court from reconsidering the issue of parental immunity, which was decided by the Stallman I court. The Stallman II court rejected defendant's argument and proceeded to reevaluate and then partially abrogate the parental immunity doctrine.
The Stallman II court noted that in Illinois an infant who is born alive and survives may bring a tort action to recover damages for prenatal injuries resulting from another's negligence. The court then simply stated that its holding "simply allows plaintiff to litigate count II of her complaint, naming her mother as a defendant." (152 Ill. App.3d at 694.) The Stallman II court cited a Michigan court of appeals case which held, "a child's mother bears the same liability for negligent conduct, resulting in prenatal injuries, as would a third person. Grodin v. Grodin (1981), 102 Mich. App. 396, 301 N.W.2d 869." 152 Ill. App.3d at 694.
The Stallman II court reversed the order of the circuit court granting the summary judgment and remanded the cause to permit the parties to proceed to trial on the merits. Defendant petitioned for leave to appeal to this court pursuant to Supreme Court Rule 315 (107 Ill.2d R. 315). We granted this appeal. Neither the Stallman I court nor the Stallman II court adequately addressed the preliminary issue whether a cause of action by or on behalf of a fetus, subsequently born alive, may be asserted against its mother for the unintentional infliction of prenatal injuries. This court holds that such a cause of action shall not be recognized.
*271 This holding makes unnecessary the consideration of the issue of the parental immunity doctrine. Accordingly, we do not consider defendant's arguments concerning stare decisis and the doctrine of the law of the case, both of which were directed to the Stallman II court's decision on the parental immunity doctrine. Insofar as Stallman I and Stallman II purport to effect a change in the status of the parental immunity doctrine as it existed before the appeal to the Stallman I court, the judgments are vacated.
PRENATAL NEGLIGENCE
The issue whether a cause of action exists by or on behalf of a fetus, subsequently born alive, against its mother for the unintentional infliction of prenatal injuries is an issue of first impression in this court. We begin with a review of the area of tort liability for prenatal negligence as it has developed in regards to third persons.
It was not until 1884, in Dietrich v. Northampton (1884), 138 Mass. 14, that such a case came before a court in the United States alleging a cause of action for prenatal injuries. In Dietrich, Judge Oliver Wendell Holmes held that the common law did not recognize a cause of action in tort for prenatal injuries to a fetus. Judge Holmes denied that such an action may lie primarily because the fetus "was a part of the mother at the time of the injury, [and] any damage to it which was not too remote to be recovered for at all was recoverable by her." (138 Mass. at 17.) After Dietrich and until 1946, all courts in the United States which considered the question agreed: no action would lie for injuries sustained by a fetus which became apparent on its birth.
This court was one of the first to consider the question of the liability of third persons for prenatal negligence after the Dietrich case. In Allaire v. St. Luke's Hospital (1900), 184 Ill. 359, it was held that no action would lie *272 for injuries to a fetus, only days away from birth, due to the negligence of the defendant hospital where the mother of the plaintiff was a patient awaiting the delivery of the plaintiff. In Allaire, this court affirmed the opinion of the appellate court, which had stated, "`That a child before birth is, in fact, a part of the mother and is only severed from her at birth, cannot, we think, be successfully disputed.'" (184 Ill. at 368.) This court adopted the reasoning of the appellate court that the plaintiff, at the time of the injury, did not have a distinct and independent existence from his mother; the injury was to the mother and not to the plaintiff. 184 Ill. at 365.
Allaire is primarily remembered today for the dissent of Mr. Justice Boggs, who asked the question:
"Should compensation for his injuries be denied on a mere theory, known to be false, that the injury was not to his [or her] person but to the person of the mother?" 184 Ill. at 374 (Boggs, J., dissenting).
The rule recognizing the right to bring an action for injuries inflicted on a fetus by a person not its mother is as pervasive and established now as was the contrary rule before 1946. This court overruled Allaire in Amann v. Faidy (1953), 415 Ill. 422, and recognized a cause of action under the wrongful death statute for the death of an infant who, while in a viable condition, sustained a prenatal injury due to the negligence of a third person. Later, in Rodriguez v. Patti (1953), 415 Ill. 496, this court recognized a common law right of action for personal injuries to an infant | {
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Fourth Court of Appeals
San Antonio, Texas
January 5, 2017
No. 04-16-00834-CV
IN THE INTEREST OF D.K.C.A.JR., A CHILD,
From the 198th Judicial District Court, Kerr County, Texas
Trial Court No. 15809B
Honorable Cathy Morris, Judge Presiding
ORDER
This is an appeal from an order terminating parental rights. The court reporter has filed a
notification of late reporter’s record, requesting an extension to January 9, 2017. We GRANT the
extension and ORDER the court reporter to file the reporter’s record on January 9, 2017. No
further extensions will be granted.
_________________________________
Karen Angelini, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 5th day of January, 2017.
___________________________________
Keith E. Hottle
Clerk of Court
| {
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Filed 4/24/14
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F067275
Plaintiff and Respondent,
(Super. Ct. No. VCF037228-98)
v.
JOE WILLIE HAYNES, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Tulare County. Ronn M.
Couillard, Judge.
Michael B. Sheltzer, Public Defender, Lisa Bertolino, Assistant Public Defender,
Angela Marie Krueger, Deputy Public Defender, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kelly E.
LeBel, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of part II. of the Discussion.
INTRODUCTION
“On November 6, 2012, the voters approved Proposition 36, the Three Strikes
Reform Act of 2012, which amended [Penal Code] sections 667 and 1170.12 and added
[Penal Code] section 1170.126 (hereafter the Act [or Proposition 36]).[1] The Act
changes the requirements for sentencing a third strike offender to an indeterminate term
of 25 years to life imprisonment. Under the original version of the three strikes law a
recidivist with two or more prior strikes who is convicted of any new felony is subject to
an indeterminate life sentence. The Act diluted the three strikes law by reserving the life
sentence for cases where the current crime is a serious or violent felony or the
prosecution has pled and proved an enumerated disqualifying factor. In all other cases,
the recidivist will be sentenced as a second strike offender. (§§ 667, 1170.12.) The Act
also created a postconviction release proceeding whereby a prisoner who is serving an
indeterminate life sentence imposed pursuant to the three strikes law for a crime that is
not a serious or violent felony and who is not disqualified, may have his or her sentence
recalled and be sentenced as a second strike offender unless the court determines that
resentencing would pose an unreasonable risk of danger to public safety. (§ 1170.126.)”
(People v. Yearwood (2013) 213 Cal.App.4th 161, 167-168.)
Shortly after the Act went into effect, Joe Willie Haynes (defendant), an inmate
serving a term of 25 years to life plus seven years following conviction of felonies that
were not violent (as defined by § 667.5, subd. (c)) or serious (as defined by § 1192.7,
subd. (c)), filed a motion seeking resentencing under the Act. The trial court determined
defendant did not qualify (was ineligible) for resentencing and denied the motion.
Defendant now appeals.
In the published portion of this opinion, we hold that the trial court’s order is
appealable. In the unpublished portion, we hold that an inmate serving an indeterminate
1 Further statutory references are to the Penal Code unless otherwise stated.
2.
life term under the three strikes law may be found to have been “armed with a firearm” in
the commission of his or her current offense(s), so as to be disqualified from resentencing
under the Act, even if he or she did not carry the firearm on his or her person.
Accordingly, we affirm.
FACTS AND PROCEDURAL HISTORY
On November 20, 1997, a parole search was conducted at the Visalia residence of
defendant and Tammy Carter. As officers entered the apartment, defendant was walking
out of one of the bedrooms.2 A search of the residence revealed, in the northeast
bedroom, a pair of pants in which were a plastic bag containing 1.8 grams of cocaine
base, a sandwich-type bag containing 3.4 grams of marijuana, and $500 cash.3 On top of
the closet were $1,300 and some Zig-Zag cigarette papers. A loaded handgun was hidden
in the box springs of the bed. There were five live rounds in the handgun, and a sixth
round of the same type and brand was found in or on the nightstand on the south side of
the bed. On the same nightstand were items in defendant’s name and what appeared to
be his articles of property. Pay-and-owe sheets were located in the nightstand on the
north side of the bed, and a magazine for a nine-millimeter handgun, containing live
rounds, was also found in that nightstand. Cocaine residue was found on a counter in the
kitchen, and there was a box of sandwich bags in one of the kitchen drawers.
Defendant gave a statement in which he denied knowledge of the gun. He
admitted the drugs were his, but maintained they were for his personal use, although he
admitted having given some to a friend the night before. He also said the money was his
and that he had saved it since he got out of prison in February of that year. He did not
2 The northeast bedroom was shared by the adults. The other bedroom “obviously”
was a child’s or children’s bedroom.
3 No suspected narcotics were found in any clothing that appeared to belong to
Carter.
3.
explain how that was possible in light of his previous claim he had not worked since the
1980’s. Despite defendant’s statement, an officer who was an expert in narcotic
transactions and possession for sale opined the drugs were possessed for sale.
Defendant was subsequently charged with possession of cocaine base for sale
while personally armed with a firearm and having suffered a prior narcotics conviction
(§ 12022, subd. (c); Health & Saf. Code, §§ 11351.5, 11370.2, subd. (a); count 1),
possession of marijuana for sale while armed with a handgun (§ 12022, subd. (a)(1);
Health & Saf. Code, § 11359; count 2); allowing a place to be used for preparing or
storing controlled substances (Health & Saf. Code, § 11366.5, subd. (a); count 3), and
possession of a firearm by a felon (former § 12021, subd. (a)(1), see now § 29800,
subd. (a); count 4). With respect to each count, it was alleged defendant had suffered
three prior “strike” convictions (§ 1170.12, subd. (c)(2)(A)) and had served two prior
prison terms (§ 667.5, subd. (b)). On April 15, 1998, defendant pled no contest, pursuant
to People v. West (1970) 3 Cal.3d 595 (West), to all charges and special allegations. On
June 22, 1998, he was sentenced to a total term of 25 years to life plus seven years in
prison.
On November 29, 2012, defendant moved for resentencing pursuant to
Proposition 36. The People opposed the motion, asserting defendant’s no contest plea to
a section 12022, subdivision (c) allegation in connection with his current offenses
constituted pleading and proof of a disqualifying factor. Defendant argued: (1) The
electorate would have understood being “armed with a firearm” (the pertinent
disqualifying factor) to occur when a defendant was carrying a firearm while perpetrating
a crime, not where, as in the present case, defendant was not in actual physical possession
of the firearm; (2) An allegation under section 12022, subdivision (c) could be found
where the defendant was in constructive, not actual, possession of a firearm; and
(3) Since the firearm was not found on defendant’s person, and he entered a West plea
and maintained his innocence while denying any knowledge of the gun, nothing in the
4.
record constituted proof defendant was armed with a firearm within the meaning of
Proposition 36. Accordingly, defendant claimed, he was qualified for resentencing.
On April 2, 2013, a hearing was held on defendant’s motion. After argument
concerning what constituted being “armed with a firearm” within the meaning of the Act,
the trial court observed it had presided over the preliminary hearing for defendant’s
current offenses, and was “well acquainted with the factual basis” for defendant’s West
plea. Accordingly, it found nothing to warrant ignoring the section 12022,
subdivision (c) admission. The court then agreed with the People that the language of the
Act was “relatively clear” and “fit the scenario of the traditional findings of [section]
12022[, subdivision] (c) to which [defendant] entered the plea.” Accordingly, the court
found defendant not qualified for resentencing and denied defendant’s motion.
Defendant filed a timely notice of appeal from the court’s ruling. Because the
question whether such a ruling is appealable is not settled, defendant also separately filed
a petition for writ of mandate and/or habeas corpus | {
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
JUDGMENT RENDERED JUNE 3, 2014
NO. 03-12-00278-CR
Mark David Simmons, Appellant
v.
The State of Texas, Appellee
APPEAL FROM 22ND DISTRICT COURT OF HAYS COUNTY
BEFORE JUSTICES PURYEAR, ROSE, AND GOODWIN
AFFIRMED -- OPINION BY JUSTICE PURYEAR
This is an appeal from the judgment of conviction entered by the trial court. Having reviewed
the record and the parties’ arguments, the Court holds that there was no reversible error in the
trial court’s judgment. Therefore, the Court affirms the trial court’s judgment of conviction.
Because appellant is indigent and unable to pay costs, no adjudication of costs is made.
| {
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147 F.3d 388
Anita SCHADLER, Plaintiff-Appellant,v.ANTHEM LIFE INSURANCE COMPANY; Anthem Benefit ServicesInc.; Acordia Benefits of the South, Inc.; Allied Signal,Inc.; Allied Signal Technical Services Corporation; AlliedSignal Team/White Sands, Defendants-Appellees.
No. 97-10491.
United States Court of Appeals,Fifth Circuit.
July 17, 1998.Rehearing Denied Aug. 13, 1998.
David R. Richards, Santa Fe, NM, for Schadler.
Ken W. Good, Billy D. Anderson, Tyler, TX, for Defendants-Appellees.
Appeal from the United States District Court for the Northern District of Texas.
Before KING and BARKSDALE, Circuit Judges, and DUPLANTIER,* District Judge.
KING, Circuit Judge:
1
In this case under the Employee Retirement Income Security Act, plaintiff-appellant Anita Schadler appeals the district court's determination that she is ineligible to receive benefits under her husband's accidental death and dismemberment policy based upon an exclusion asserted by defendants-appellees for the first time on appeal to the district court. Because we conclude that the plan administrator failed to make the initial benefits determination as required by the plan, we vacate the judgment of the district court and remand with instructions to remand to the plan administrator to make the necessary benefits decision in the first instance.
I. FACTUAL & PROCEDURAL BACKGROUND
2
Prior to May 1994, James T. Schadler (Mr. Schadler), the late husband of plaintiff-appellant Anita Schadler (Mrs. Schadler), worked as an engineer for Lockheed Corporation (Lockheed) at the White Sands Test Facility in New Mexico. In May 1994, defendant-appellee Allied Signal Team/White Sands (Allied) replaced Lockheed as the contractor operating the White Sands facility, and Mr. Schadler thereby became an employee of Allied on May 3, 1994.
3
As part of his employment, Allied offered Mr. Schadler a package of employee benefits (the Plan). One option included in the Plan was a voluntary accidental death and dismemberment policy (the VAD&D Policy). Defendant-appellee Anthem Insurance Company (Anthem) underwrote and administered the VAD&D Policy and defendant-appellee Acordia Benefits of the South, Inc. (Acordia) served as its third-party administrator. The VAD&D Policy provided that Mr. Schadler could enroll upon submitting the appropriate paperwork and agreeing to make certain premium payments.
4
On May 12, 1994, Mr. Schadler died as a result of a mixed-drug intoxication. His autopsy revealed a recent needle puncture that was not associated with resuscitative efforts, and a toxicologic examination of his body fluids revealed "cocaine, Desipramine, and markedly elevated levels of morphine." Mr. Schadler had a history of drug abuse.
5
Following Mr. Schadler's death, Mrs. Schadler sought payment under various policies included in the Plan, including the VAD&D Policy. In a letter dated April 24, 1995, Anthem explained that Mrs. Schadler was not entitled to recover under the VAD&D Policy because it had never received an enrollment card from Mr. Schadler and had not billed him for coverage under the VAD&D Policy. Anthem therefore concluded that "no VAD&D policy was ever issued to James L. Schadler."1
6
Following Anthem's determination that Mr. Schadler was not covered by the VAD&D Policy, Mrs. Schadler timely filed this action against defendants-appellees Anthem, Anthem Benefit Services, Inc., Acordia Benefits of the South, Inc., Allied Signal, Inc., and Allied Signal Technical Services Corporation (collectively, Defendants) pursuant to the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001-1461.2 She contended in her complaint that Mr. Schadler had completed and returned the VAD&D Policy's enrollment card, and she argued that Anthem's failure to receive the enrollment card was due to an "inadvertent error, omission or failure" on the part of Allied, for which the Plan indicated that an employee may not be deprived of coverage.
7
On March 6, 1996, Defendants moved for summary judgment, arguing that "no application or premium was ever received and no coverage was ever in force for a VAD&D policy." In the alternative, Defendants argued for the first time that, even if the VAD&D Policy had been in force, recovery was precluded by several exclusions contained therein, which they described as follows:3
8
-- Intentionally self-inflicted injuries, or any attempt thereof, while sane or insane.
9
-- The taking of drugs or poisons or asphyxiation from the inhaling of gas, when done on a voluntary basis. (This does not apply to drugs that are taken on the advice of a physician).
10
For reasons that remain unclear, in Defendants' Supplemental Motion for Summary Judgment they began to abandon their original lack of coverage defense, stating that, "[r]egardless of whether James Schadler properly enrolled for the benefits in dispute, it is undisputed that the summary and plan at issue included language specifically excluding benefits for intentionally self-inflicted injury." Moreover, Defendants' Proposed Findings of Fact and Conclusions of Law did not mention the lack of coverage defense, stating only that Mr. Schadler's death was excluded from coverage based on the intentionally self-inflicted injury and drug-use exclusions. In response, Mrs. Schadler argued that Defendants could not rely on the drug-use exclusion because it was not listed in the Summary Plan Description (SPD). She also contended that Defendants should not be allowed to rely on the intentionally self-inflicted injury exclusion because they did not assert it until they moved for summary judgment in the district court.
11
The district court denied Defendants' motion for summary judgment. Following a bench trial consisting of the admission of depositions, affidavits, and other exhibits and of closing arguments by counsel, the district court determined that circuit precedent dictated that Defendants could not deny Mrs. Schadler benefits based upon the drug-use exclusion because it was not listed in the SPD. The court nevertheless found that she was ineligible to receive benefits under the VAD&D Policy because Mr. Schadler's death was the result of illicit drug use, which the court found constituted an intentionally self-inflicted injury and was therefore excluded from coverage. Mrs. Schadler timely appealed the judgment of the district court.
II. DISCUSSION
12
Mrs. Schadler argues that the district court erred in finding that she was not entitled to benefits. She first contends that ERISA and the regulations promulgated pursuant to it dictate that Defendants should not have been allowed to assert the intentionally self-inflicted injury exclusion for the first time before the district court. Alternatively, Mrs. Schadler asserts that even if Defendants are allowed to rely on the intentionally self-inflicted injury exclusion, it does not preclude her recovery because Mr. Schadler did not intend to injure himself.
13
Defendants respond that they have asserted the same factual basis for denying the claim throughout the process and that Mrs. Schadler therefore was not prejudiced by their reliance on the intentionally self-inflicted injury exclusion for the first time before the district court. In addition, they argue that the district court's decision that the intentionally self-inflicted injury exclusion precluded recovery is correct.4 Following a brief discussion of the law surrounding suits challenging denials of benefits under ERISA, we address each of these arguments in turn.
A.
14
As the Supreme Court has explained, "ERISA was enacted 'to promote the interests of employees and their beneficiaries in employee benefit plans' and 'to protect contractually defined benefits.' " Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 113, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989) (citations omitted) (quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 90, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983) and Massachusetts Mutual Life Ins. Co. v. Russell, 473 U.S. 134, 148, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985), respectively). Therefore,
15
ERISA sets certain minimum requirements for procedures and notification when a plan administrator denies a claim for benefits. In a nutshell, ERISA requires that specific reasons for denial be communicated to the claimant and that the claimant be afforded an opportunity for "full and fair review" by the administrator.
16
Halpin v. W.W. Grainger, Inc., 962 F.2d 685, 688 (7th Cir.1992).
17
These procedures are set forth in § 1133 of ERISA and in the Department of Labor regulations promulgated pursuant to that section. Section 1133 provides:
18
In accordance with regulations of the Secretary, every employee benefit plan shall--
19
(1) provide adequate notice in writing to any participant or beneficiary whose claim for benefits under the plan has been denied, | {
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7687
RONNELL A. GREGORY,
Petitioner - Appellant,
versus
GENE M. JOHNSON, Director, Virginia Department
of Corrections,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (CA-04-292)
Submitted: February 4, 2005 Decided: February 22, 2005
Before MOTZ, TRAXLER, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Ronnell A. Gregory, Appellant Pro Se. John H. McLees, Jr., OFFICE
OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Ronnell A. Gregory seeks to appeal the district court’s
order denying relief on his petition filed under 28 U.S.C. § 2254
(2000). We have independently reviewed the record and conclude on
the reasoning of the district court that Gregory has not made a
substantial showing of the denial of a constitutional right. See
Gregory v. Johnson, No. CA-04-292 (E.D. Va. Sept. 28, 2004).
Accordingly, we deny a certificate of appealability and dismiss the
appeal. See 28 U.S.C. § 2253(c) (2000). We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
DISMISSED
- 2 -
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566 F.3d 1364 (2009)
Paul W. HYATT, Claimant-Appellant,
v.
Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.
No. 2008-7163.
United States Court of Appeals, Federal Circuit.
May 27, 2009.
*1365 Sandra W. Wischow, Goodman, Allen & Filetti, of Richmond, VA, argued for claimant-appellant.
Claudia Burke, Senior Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With her on the brief were Jeanne E. Davidson, Director, and Martin F. Hockey, Jr., Assistant Director. Of counsel on the brief were Michael J. Timinski, Deputy Assistant General Counsel, and Martie S. Adelman, Attorney, United States, Office of the General Counsel, Department of Veterans Affairs, of Washington, DC.
Before LOURIE, GAJARSA, and PROST, Circuit Judges.
PROST, Circuit Judge.
Mrs. Julianne Hyatt is the widow of Mr. Paul Hyatt, a veteran who died on August 24, 2007, while his claim for disability compensation was pending. On July 22, 2008, the United States Court of Appeals for Veterans Claims ("Veterans Court") issued an order denying two motions filed by Mrs. Hyatt. The first motion requested that the court substitute her as a party in Mr. Hyatt's case. The second asked the court to give nunc pro tunc effect to the Veterans Court's decision on an appeal taken by Mr. Hyatt for which a decision was issued but judgment was not yet entered prior to his death. Because we conclude that Mrs. Hyatt lacks standing to be substituted as a party, we affirm the Veterans Court's disposition of both motions.
I. BACKGROUND
Mr. Hyatt served in the United States Marine Corps from December 1958 to September 1962. In 1959, Mr. Hyatt was injured when a member of his military unit negligently struck him in the back with a bayonet during a ceremony at the Tomb of the Unknowns at Arlington National Cemetery. The serviceman responsible for Mr. Hyatt's injury was disciplined by court martial.
In 1983, Mr. Hyatt filed a claim for disability compensation for a lower-back *1366 condition, which he alleged resulted from the 1959 bayonet injury. Along with his application, Mr. Hyatt submitted lay statements describing the circumstances surrounding the bayonet incident. The statements disclosed that the serviceman had been court-martialed, but the court martial records were not submitted and the Department of Veterans Affairs ("VA") did not attempt to acquire them. In December 1983, a VA regional office denied his claim and Mr. Hyatt did not appeal.
In 1998, the VA reopened Mr. Hyatt's case in response to newly submitted evidence. After his claim was again denied, Mr. Hyatt suggested that the Board of Veterans' Appeals ("Board") retrieve the court martial records. The Board declined to do so. Although the Board found that the 1959 bayonet incident had occurred and that Mr. Hyatt currently suffered from a back disability, it also found that a nexus between the two had not been established because there was "no medical, or consistent lay evidence, of the nature and extent of [the bayonet] wound." Accordingly, the Board denied his claim for service connection.
On appeal to the Veterans Court, Mr. Hyatt argued that the VA had failed to satisfy its statutory duty to assist him in obtaining the evidence and information necessary to substantiate his claim. On August 6, 2007, the Veterans Court issued its decision, which reversed the Board's finding that the duty to assist had been satisfied and remanded for further proceedings. The Veterans Court noted the relevance of the court martial records:
In significant part, the Board rested its decision that there was no nexus between Mr. Hyatt's current disability and his injury in service on its finding that there was "no medical, or consistent lay evidence, of the nature and extent of" the wound to Mr. Hyatt's back that he suffered in service. Those dealing with veterans' claims should understand that a court-martial involving an injury to another serviceman likely would contain evidence regarding the extent and nature of the injury for purposes of aggravation and mitigation.
Hyatt v. Nicholson, 21 Vet.App. 390, 395 (2007) (citation omitted). Because the court martial records were relevant and had been identified to the VA, the Veterans Court found that the VA "had a duty to attempt to secure the court-martial records and, if unsuccessful in doing so, to provide Mr. Hyatt with the specific notice required by section 5103A(a)(2)." Id. The Veterans Court entered its judgment on August 29, 2007. However, it was later notified that Mr. Hyatt had died on August 24, 2007.
Mrs. Hyatt filed motions requesting substitution of party and reissuance of the judgment nunc pro tunc as of the date of Mr. Hyatt's death. Mrs. Hyatt hoped that these motions, if successful, would result in the court martial records being treated as part of Mr. Hyatt's file at his date of death, thereby making them available for Mrs. Hyatt's claim for accrued benefits under 38 U.S.C. § 5121. In a July 22, 2008 order, the majority of the Veterans Court, over a dissent, determined that Mrs. Hyatt did not have standing to be substituted as a party and thus could not seek reissuance of the judgment. Hyatt v. Peake, 22 Vet.App. 211 (2008). Accordingly, it withdrew the decision on Mr. Hyatt's appeal and vacated the Board decision with respect to the matters upon which Mr. Hyatt's appeal was based. Id. at 215. Mrs. Hyatt timely appealed. We have jurisdiction under 38 U.S.C. § 7292.
II. DISCUSSION
On an appeal from the Veterans Court, this court "shall decide all relevant questions of law, including interpreting *1367 constitutional and statutory provisions." 38 U.S.C. § 7292(d)(1). "Our review is limited to questions of law, and it is de novo." Bailey v. West, 160 F.3d 1360, 1362 (Fed.Cir.1998) (en banc) (citations omitted).
"[A] veteran's claim to disability compensation ... is terminated by his or her death...." Richard v. West, 161 F.3d 719, 723 (Fed.Cir.1998). However, 38 U.S.C. § 5121(a) provides that specified individuals, including a surviving spouse, may receive the "benefits ... to which [the veteran] was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death ... and due and unpaid." Thus, under the statute, "the [§ 5121] claimant takes the veteran's claims as they stand on the date of death." Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed.Cir.1996). Although an accrued benefits claim brought by a surviving spouse under § 5121 is "derivative of the veteran's claim for service connection," it is nevertheless a separate claim based on a separate statutory entitlement to benefits. Id. at 1241. Additionally, it comes with a separate set of administrative and appellate procedures. Id. at 1243-44. Because an accrued benefits claim is a separate claim with separate procedures that begins where the veteran's claim stood at the date of death, the claimant will often be able to pursue her claim without any need to be substituted as a party in the veteran's case. See id. at 1244.
For cases in which the accrued benefits claimant requests substitution, this court has identified a two-part inquiry for deciding if substitution is proper.[1]Padgett v. Nicholson, 473 F.3d 1364, 1370 (Fed.Cir.2007). First, although the Veterans Court is not bound by Article III of the Constitution, it nevertheless requires the claimant to show the presence of a "case or controversy." Id. Second, the claimant "must satisfy the Veterans Court's standing requirement under 38 U.S.C. § 7266(a), which provides that she be `adversely affected' by a decision of the [B]oard." Id.
In this case, Mrs. Hyatt seeks to be substituted as a party in Mr. Hyatt's case and to have judgment reissued nunc pro tunc so that she can benefit from the Veterans Court's decision finding a violation of the duty to assist and remanding for the VA to attempt to obtain the court martial records. The majority of the Veterans Court relied on what appear to be two separate grounds to support its conclusion that Mrs. Hyatt lacks standing for substitution. First, it found that substitution was inappropriate because the result of Mr. Hyatt's appeal lacked the type of "continuing relevance" to Mrs. Hyatt's accrued benefits claim that is required by this court's precedent. Specifically, it concluded that the "continuing relevance" requirement was only met in cases in which the judgment sought to be reissued would result in an imminent entitlement to benefits. Second, it found that Mrs. Hyatt would not *1368 be "adversely affected" if the result in Mr. Hyatt's appeal was vacated because even if the decision was to be reissued nunc pro tunc, the court martial records would not be part of the record for Mrs. Hyatt's accrued benefits claim. On appeal, Mrs. Hyatt argues that neither ground is correct.
A
The first ground of | {
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739 So.2d 801 (1999)
Carla Bolden and Juan BOLDEN
v.
Heber E. DUNAWAY, Jr.
No. 99-C-0275.
Supreme Court of Louisiana.
March 26, 1999.
Denied.
TRAYLOR, J. not on panel.
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222 P.3d 500 (2010)
STATE of Kansas, Appellee,
v.
Robert L. ROBISON, Jr., Appellant.
No. 101,515.
Supreme Court of Kansas.
January 22, 2010.
*502 Matthew J. Edge, of the Kansas Appellate Defender Office, argued the cause and was on the brief for the appellant.
Amy L. Aranda, assistant county attorney, argued the cause, and Mark Goodman, county attorney, and Steve Six, attorney general, were with her on the brief for appellee.
The opinion of the court was delivered by DAVIS, C.J.:
Robert Robison, Jr., pleaded no contest to a charge of aggravated indecent liberties with a child. He was sentenced to life without the possibility of parole for 25 years, with lifetime postrelease supervision. Robison appeals his life sentence. We affirm.
FACTS
After negotiations between the defendant and the State involving two counts of aggravated indecent liberties with a child, one count was dismissed, and Robison entered his plea of no contest to one count of aggravated indecent liberties with a child in violation of K.S.A. 21-3504(a)(3)(A). His motion for a downward durational departure was denied. He was sentenced to a mandatory life sentence without the possibility of parole for 25 years pursuant to K.S.A. 21-4643, "Jessica's Law," with lifetime postrelease supervision. He made no claim before the trial court that his sentence was unconstitutionally cruel or unusual. He now seeks to have this issue considered on appeal. We decline.
The sentence was imposed on Robison, already a registered sex offender, for lewd fondling or touching of D.M.L., a 9-year-old child, on or between August 11, 2007, and November 26, 2007. Evidence had also been presented on a second amended count of aggravated indecent liberties with D.M.L by Robison. That event had occurred after the date of the offense of conviction and was discovered by D.M.L.'s aunt as it was occurring on November 27, 2007. Investigation of that event eventually led to the discovery of the earlier act of conviction. The second count was withdrawn pursuant to negotiations leading to the nolo contendere plea.
In addition to his motion requesting a downward durational departure sentence, Robison also presented arguments for departure at his sentencing hearing. The district judge concluded, however, that none of the reasons asserted by Robison were substantial and compelling reasons to depart from the mandatory sentence. The judge also noted Robison's indecent liberties conviction in 2000.
Robison appealed his sentence, arguing that the district court erred by denying his motion for a downward durational departure sentence. He also asked that we address his claim that the sentence imposed is cruel or unusual and must be set aside.
This court's jurisdiction is under K.S.A. 22-3601(b)(1) (off-grid crime; life sentence).
Discussion
(1) Whether the mandatory minimum sentence in K.S.A. 21-4643 violates the Eighth Amendment to the United States Constitution and Section 9 of the Bill of Rights of the Kansas Constitution
Robison argues his life sentence violates the right against cruel or unusual punishment under Section 9 of the Bill of Rights of the Kansas Constitution, and the prohibition of cruel and unusual punishment under the Eighth Amendment to the United States Constitution.
The determination of whether a sentence is a cruel or unusual punishment is controlled by a three-factor test stated in State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978). These factors include both legal and factual inquiries, and no one factor controls. Robison's arguments fail. Recently in State v. Mondragon, 289 Kan. ___, Syl. ¶ 2, 220 P.3d 369 (2009), State v. Thomas, 288 Kan. 157, Syl. ¶ 1, 199 P.3d 1265 (2009), and State v. Ortega-Cadelan, 287 Kan. 157, Syl. ¶ 2, 194 P.3d 1195 (2008), this court held that a defendant's argument that a life sentence imposed under the provisions of K.S.A. 21-4643 is a cruel or unusual punishment cannot be presented for the first time on appeal.
Just as in Mondragon, Thomas, and Ortega-Cadelan, Robison made no reference to any constitutional concerns during plea *503 negotiations, in his written motion for downward durational departure, or at his sentencing hearing. Robinson concedes that he advanced his argument for the first time on appeal. Just like the defendant in Thomas, Robison
"did not address these factors before the district court, did not present evidence, and did not ask the court to make findings of fact or conclusions of law on the issue. See Dragon v. Vanguard Industries, 282 Kan. 349, 356, 144 P.3d 1279 (2006) (litigant must object to inadequate findings of fact and conclusions of law before the trial court to preserve the issue for appeal); Supreme Court Rule 165 (2008 Kan. Ct. R. Annot. 235)." Thomas, 288 Kan. at 159-60, 199 P.3d 1265.
Moreover, just like the Thomas defendant, defendant Robison:
"Conceding that he did not make the argument before the district court and recognizing the general rule that constitutional issues cannot be asserted for the first time on appeal, State v. Ortega-Cadelan, 287 Kan. 157, Syl. ¶ 1, 194 P.3d 1195 (2008), [defendant] urges application of one of the exceptions that recognize circumstances when an issue can be advanced for the first time on appeal. The exceptions were identified in Pierce v. Board of County Commissioners, 200 Kan. 74, 80-81, 434 P.2d 858 (1967), and are: (1) The newly asserted claim involves only a question of law arising on proved or admitted facts and is determinative of the case; (2) consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights; and (3) the district court is right for the wrong reason. [Defendant] argues that his case falls within the first two Pierce exceptions because the constitutional issue involves a question of law and also relates to a fundamental right." 288 Kan. at 160, 199 P.3d 1265.
Robison too, citing State v. Puckett, 230 Kan. 596, 640 P.2d 1198 (1982), argued in his brief that his case falls within the first two Pierce exceptions because the constitutional issue involves a question of law and also relates to a fundamental right.
Notwithstanding this argument, Thomas noted:
"These same arguments were presented by another defendant and rejected by this court in Ortega-Cadelan, 287 Kan. at 161, 194 P.3d 1195. Ortega-Cadelan pled guilty to one count of rape in violation of K.S.A. 21-3502(a)(2) (sexual intercourse with child under 14 years of age). He was sentenced under the same provision as applied to Thomas ... 21-4643(a)(1), and received a mandatory life sentence without the possibility of parole for 25 years and postrelease supervision for life. Ortega-Cadelan appealed his sentence and argued for the first time on appeal that his sentence constituted cruel or unusual punishment." 288 Kan. at 160-61, 199 P.3d 1265.
Thomas concluded:
"We declined to consider Ortega-Cadelan's argument that the sentence offended the constitutional prohibition against cruel or unusual punishment. Citing the three-prong Freeman test, we noted the factors include both factual and legal questions. Despite the defendant's attempt to focus on those factors that raised legal questions, we determined the factual aspects of the test could not be ignored because no single consideration controls the issue. As a result, we concluded that the factual aspects of the test must be considered by the district court before the question could be reviewed on appeal and so the issue was not properly before the court. 287 Kan. at 161, 194 P.3d 1195." 288 Kan. at 161, 199 P.3d 1265.
We conclude that Mondragon, Thomas, and Ortega-Cadelan control. Robison's "argument that his life sentence pursuant to [K.S.A. 21-4643(a)(1)] is a cruel or unusual punishment, which was ... not argued before the district court, cannot be presented for the first time on appeal." 288 Kan. at 161, 199 P.3d 1265.
(2) Whether the district court erred in denying Robison's motion for a downward durational departure sentence
Robison claims that the district court erred by denying his request for a downward durational departure sentence. K.S.A. 21-4643(d) *504 provides that the district "judge shall impose the mandatory minimum term of imprisonment provided by subsection (a), unless the judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure."
Standard of Review
Contrary to Robison's contention that this issue involves the interpretation of K.S.A. 21-4643(d), calling for an unlimited de novo review, the established standard of review is one of abuse of discretion. See Mondragon, State v. Seward, 289 Kan. 715, 217 P.3d 443 (2009), and Thomas, wherein we stated:
"On appellate review of this process, we apply a broad abuse of discretion standard because this issue involves the district court | {
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214 F.2d 534
ADAMS et al.v.RAILROAD RETIREMENT BOARD.
No. 13719.
United States Court of Appeals Ninth Circuit.
June 29, 1954.
Clarence D. Phillips, H. H. Phillips, Phillips, Coughlin, Buell & Phillips, Portland, Or., for petitioners.
Myles F. Gibbons, Gen. Counsel, Railroad Retirement Board, Chicago, Ill., David B. Schreiber, Associate General Counsel, Louis Turner, Asst. Gen. Counsel, Chicago, Ill., and Ben Diamond, Chicago, Ill., on the brief, for respondent.
Before HEALY, BONE and POPE, Circuit Judges.
POPE, Circuit Judge.
1
Portland Electric Power Company, here called Power, for many years prior to 1930, operated an electric generation and transmission business, city traction lines, and an interurban railway line. In 1930, Portland General Electric Company, here called Electric, was organized as a wholly owned subsidiary of Power and all the electric utility properties and operations of Power were transferred to it. Two years later the city traction lines were turned over to Portland Traction Company, here called Traction, also a wholly owned subsidiary of Power.
2
From August 29, 1935, when the Railroad Retirement Act of 1935, 49 Stat. 967-973, was passed, until August 29, 1946,1 Power was an "employer" under the Railroad Retirement Act.2 This was because of its operation of the interurban line which had physical connections and exchanged service with certain steam railroads. Petitioners, 88 in number out of a group of 600 persons similarly situated, are employees or former employees on the payroll of Electric. They asserted in the proceeding in which the Board's decision was rendered, that they were employees of Power and "employees" under the Act.3 This claim was predicated upon the fact that after Electric was formed and began operating in 1930, these petitioners, although receiving their pay checks from Electric, actually performed many services for Power. The general character of these services is mentioned hereafter.
3
In such cases the greater portion of the time of each petitioner was devoted to similar work for Electric. But such services were always available to Power, which thus was relieved of the necessity of having this type of work done by men on its own payroll.
4
In addition, petitioners say, they performed these duties under the direction of Power, and subject to its continuing authority.4 To illustrate their point in this regard petitioners describe the situation of one of them, a Mr. Robertson, who performed work in preparing payrolls of Power. He reported to a general auditor who in turn reported to a president. But the auditor and the president occupied dual positions in that each was an officer and held the named position with both Electric and Power. Thus it is stated that at the important date in 1935, hereafter mentioned, Mr. Robertson was under the supervision of the general auditor of Power who was supervised by the president of Power. Petitioners say that this demonstrates that Robertson was subject to the continuing authority of Power which could supervise and direct the manner of rendition of his service notwithstanding the men from whom he took his orders were also the auditor and the president of Electric.
5
The record also shows that although Mr. Robertson received his pay by means of a check drawn on the account of Electric, on whose payroll he was carried, yet Electric then charged to Power a sum of money representing the portion of his salary attributable to the work he did for Power.
6
Petitioners say that the facts with respect to Robertson's employment are fairly representative of the manner in which the other petitioners were employed and compensated, and we do not understand that this is controverted by the respondent Board. Petitioners say that notwithstanding they were admittedly in the employ of Electric, yet they were also employed by Power, that is, they were employed by both Electric and Power, and subject to an authority which was exercised as the composite joint act of both companies.
7
Attention is called to the fact that Power owned Electric, the officers of Power and Electric were the same, and all occupied the same building. It is said that in general all decisions, those of Electric, Power and Traction, after the separation of the original enterprise in 1930 and in 1932, were executed in a manner not distinguishable from the way in which they were carried out prior to that time; — the only difference say the petitioners is that the top executive was president of the three different companies instead of one and that the same situation related to the chain of command all the way down to the petitioners who did the actual work under those commands.
8
If petitioners are right in their contention, the consequences with respect to a petitioner who was an "employee" on August 29, 1935, is that he may receive credit toward an annuity under the Act for services rendered to an "employer" before as well as after January 1, 1937.5
9
Not long after the enactment of the 1937 Act Power made inquiry as to its status and that of its employees with respect to this question and advised its employees that only those on its own payroll were covered. Therefore for several years Power's compensation reports to the Board were limited to such employees. In 1942, the Commissioner of Internal Revenue, in dealing with the duty to pay taxes under the Carriers Taxing Act, 50 Stat. 437, made a ruling in line with the present position of these petitioners. During the same year the Board's general counsel made a similar ruling, holding that an employee on the payroll of Electric was also an employee of Power with respect to a portion of his services and compensation.6 Thereafter taxes computed under the Carriers Taxing Act were paid, in line with such opinions, upon "the portion of such employees' remuneration which was attributable to services performed for [Power]". During the period from 1942 to 1949 annuities were granted and certified to 54 of the petitioners.7 Thus Mr. Robertson, before mentioned, retired in 1946 and the Board issued to him a certificate stating that he would be entitled to an annuity under the Act for the rest of his life. However, in 1950, the Board's general counsel changed his views expressed in the earlier ruling, and now gave it as his opinion that some 600 individuals who had been carried on the payroll of Electric, including the present 88 petitioners, were not employees of Power. The individuals, who had earlier been granted annuities, were then notified of their cancellation although recovery of benefits previously paid was waived. Petitioners applied to the Board for an order which in effect would reverse this later ruling and hold them employees entitled to benefits under the Act. The Board found against them, and they now seek review in this court.
10
The adverse decision of the Board is predicated primarily upon the terms and provisions of a so-called "inter-company agreement" dated September 1, 1932 between Electric, Power, Traction and the Willamette Valley Railway Company. The portions thereof set forth in the Board's findings are copied in the margin.8
11
The existence of this agreement, the Board found, did not come to the attention of counsel for the Board when he made his first ruling that the employees of Electric in the position of petitioners were also employees of Power and entitled to benefits under the Act. This agreement, the Board held, demonstrates that the services of employees supplied by Electric to Power were not performed as a part of a joint operation of the two companies, but pursuant to Electric's undertaking to furnish those services to Power as a part of Electric's own operation. The position of the Board is that this agreement of September 1, 1932 is proof that petitioners were exclusively the employees of Electric.
12
Petitioners argue that the Board has given an improper interpretation to this inter-company memorandum. They say that it is wholly unrealistic to give controlling significance to a memorandum executed between corporations one of whom is the master and the other the creature, — this especially in view of the evidence that the written memorandum was executed primarily to satisfy certain requirements of the Public Utilities Commissioner of the State of Oregon.
13
For reasons which will appear hereafter we do not deem it necessary to express any opinion as to whether the Board has rightly interpreted that written agreement, particularly in view of the deference which this court is wont to give to findings of fact made by administrative boards when reviewed by this court.9
14
During the consideration of this matter counsel for the parties filed additional briefs dealing with some questions which this court propounded to them.10 It will be noted that these questions are prompted by that portion of § 228a of Title 45 which reads as follows: "The term `employer' means any carrier (as defined in subsection (m) of this section), and any company which is directly or indirectly owned or controlled by one or more such carriers or under common control therewith, and which operates any equipment or facility or performs any service (except trucking service, casual service, and the casual operation of equipment or facilities) in connection with the transportation of passengers or property by railroad, or the receipt, delivery, elevation, transfer in transit, refrigeration or icing, storage, or handling of property transported by railroad, * * *." The problem is whether the 88 petitioners, although on the payroll of Electric, are not nevertheless employees within the meaning of the Act by reason of the fact that Electric is at least with respect to its employment of these particular employees itself an employer within the meaning of the Act because it is a "company which is directly or indirectly owned or controlled by one * * * such carriers * * * and which operates any equipment or facility or performs any service (except trucking service, casual service, and the casual operation of equipment or facilities) in connection with the transportation of passengers or property by railroad".
15
Petitioners answer this inquiry with an emphatic "Yes | {
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601 F.Supp. 132 (1985)
Katherine RIZZO, Plaintiff,
v.
WGN CONTINENTAL BROADCASTING COMPANY, Defendant.
No. 84 C 4458.
United States District Court, N.D. Illinois, E.D.
January 11, 1985.
Sheila M. Murphy, Chicago, Ill., for plaintiff.
Richard L. Marcus, William J. Campbell, Jr., Steven L. Loren, Chicago, Ill., for defendant.
MEMORANDUM OPINION AND ORDER
NORDBERG, District Judge.
This matter comes before the Court on the defendant, WGN Continental Broadcasting Company's ("WGN") motion to dismiss plaintiff's Amended Complaint. The plaintiff, Katherine Rizzo, originally filed a four count complaint against WGN which was dismissed. Plaintiff was granted leave to file an Amended Complaint consisting of two counts. (See minute order of October 25, 1984). Count I alleges age discrimination and Count II alleges sex discrimination. Defendant's motion to dismiss *133 Rizzo's sex discrimination claim, renewed as to the Amended Complaint, is hereby granted in accordance with the following order.
Rizzo's E.E.O.C. Complaint
Plaintiff Katherine Rizzo is a former employee of WGN. She began working for WGN in 1950 and was employed there until February 25, 1983. Rizzo claims that she was forced to stop working for WGN as a result of WGN's "Early Retirement Program" (Program). It is Rizzo's position that WGN's Program discriminated against her on the basis of her age. On April 27, 1983, Rizzo filed a charge of age discrimination with the E.E.O.C. Rizzo's E.E.O.C. charge indicated that February 25, 1983 was the most recent date that age discrimination took place. Subsequently, on October 11, 1983, Rizzo amended her E.E.O.C. charge to include an allegation that WGN discriminated against her on the basis of her sex. The E.E.O.C. investigated both of Rizzo's claims and, finding no reasonable cause to believe Rizzo's charge to be true, issued her a "right to sue" notice.
After receiving her right to sue notice, Rizzo filed a four-count complaint in federal district court, subsequently amended to a two-count complaint. In addition to her age discrimination claim, Count II of Rizzo's Amended Complaint alleged that WGN discriminated against her on the basis of her sex, causing her to suffer severe emotional distress.
WGN has moved to dismiss Count II of Rizzo's Amended Complaint. WGN contends that Rizzo is barred from raising her Title VII sex discrimination claim because she did not file a timely E.E.O.C. charge. Under 42 U.S.C. § 2000e-5(e), a plaintiff must file a charge with the E.E.O.C. within 180 days of the last act of discrimination. WGN contends that since February 25, 1983 was the date on which the last discriminatory act took place, and since Rizzo amended her E.E.O.C. charge on October 11, 1983, Rizzo failed to file her sex discrimination charge within 180 days. As a result, WGN argues that Rizzo's sex discrimination claim is barred.
Rizzo, on the other hand, claims that her failure to include a sex discrimination in her original April 27 E.E.O.C. charge is the result of a mere technical mistake. Rizzo contends that she simply failed to "check the appropriate box." Consequently, Rizzo asserts that her sex discrimination claim should be allowed to stand.
The Motion to Dismiss
In considering WGN's motion to dismiss, the court's inquiry is whether Rizzo's complaint sets forth allegations sufficient to make out the elements of a right to relief. Austin v. Merrill Lynch, Pierce, Fenner & Smith, 570 F.Supp. 667, 668 (W.D.Mich. 1983). The Court must accept as true all material facts well-pleaded in the complaint, and must make all reasonable inferences in the light most favorable to the plaintiff. Schnell v. City of Chicago, 407 F.2d 1084, 1086 (7th Cir.1969). Because the Court finds that Rizzo's claim is barred by Title VII's limitation period, dismissal of her sex discrimination claim is proper.
The Procedural Prerequisites to Filing a Title VII claim in Federal Court
A plaintiff who wishes to file a Title VII claim in federal court must first comply with the procedural scheme set forth in the statute. Federal courts have jurisdiction over Title VII claims only if a timely charge is first filed with the E.E. O.C. Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974); McDonnell Douglas Corporation v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 1822, 36 L.Ed.2d 668 (1973). Section 2000e-5(e) provides: "A charge under this section shall be filed within 180 days after the alleged unlawful employment practice occurred...." Thus, the express wording of the statute dictates that a plaintiff is required, prior to instituting suit in federal court, to file a change with the E.E.O.C. within 180 days after the act of discrimination took place.
*134 In addition, however, the E.E.O.C. regulations provide that a plaintiff's E.E.O.C. charge may be amended to include additional allegations after the running of the 180 day limitation period. 29 C.F.R. § 1601.12(b) states:
A charge may be amended to cure technical defects or omissions, including failure to verify the charge, or to clarify and amplify allegations made therein. Such amendments and amendments alleging additional acts which constitute unlawful employment practices related to or growing out of the subject matter of the original charge will relate back to the date the charge was first received. A charge that has been so amended shall not be required to be redeferred. (emphasis supplied).
29 C.F.R. § 1601.12(b) (1984).
Thus, Rizzo's October 11, 1983 amendment will be judged against the wording of the regulation above and the federal courts' interpretation and application of that regulation.
Federal courts interpreting 29 C.F.R. § 1601.12(b) acknowledge that E.E.O.C. charges are generally filed by ordinary people who lack legal training. These courts have often held that because E.E. O.C. charges are in laymen's language, they are to be given liberal construction. Jenkins v. Blue Cross Mutual Hospital Insurance, Inc., 538 F.2d 164, 167 (7th Cir.1976); Abraham v. Field Enterprises, 511 F.Supp. 91, 93 (N.D.Ill.1980). These courts reason that a layman should not be precluded from having his or her day in court simply because he or she is unable to specifically articulate the type of discrimination he has suffered. Jenkins, 538 F.2d 164, 167, 168 (7th Cir.1976); Willis v. Chicago Extruded Metals Co., 375 F.Supp. 362, 365 (N.D.Ill.1974). The Seventh Circuit, following the Fifth Circuit's lead, has enunciated the standard which this Court is to apply in determining whether an untimely amendment of an E.E.O.C. complaint may relate back:
The correct rule to follow in construing E.E.O.C. charges for purposes of delineating the proper scope of a subsequent judicial inquiry is that "the complaint in the civil action ... may properly encompass any ... discrimination like or reasonably related to the allegations of the charge and growing out of such allegations."
Jenkins, 538 F.2d at 167, citing Danner v. Phillips Petroleum Company, 447 F.2d 159, 162 (5th Cir.1971). Thus, Rizzo's October 11, 1983 amendment can relate back to her initial April 27, 1983 charge only if her sex discrimination charge "is like or reasonably related" to the allegations contained in her initial April 27, 1983 charge.
Rizzo's April 27 E.E.O.C. charge contains facts and allegations describing how she was discriminated against on the basis of her age. For example, paragraph III of Rizzo's charge states: "I believe that I have been discriminated against because of my age 59...." In the paragraphs following, Rizzo alleges that she was forced to partake in WGN's "mandatory" retirement program and that she was subsequently replaced by a younger employee who was in his "early 30's". In her complaint, Rizzo refers to a "younger employee," the "early retirement" program and how each individual involved was younger than she. Rizzo underscores and sums up the basis of her claim in paragraph IV:
I believe that the above named Respondent, (WGN), is discriminating against employees, 55 and older, as a class by forcing early retirement upon them, and if it is not accepted they are demoted and harassed.
However, while Rizzo has alleged facts sufficient to state a cause of action in age discrimination, nowhere in her April 27 charge is there any reference to facts indicating that WGN sexually discriminated against her. Indeed, every paragraph of Rizzo's April 17 charge contains allegations directed solely towards WGN's "mandatory" early | {
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969 F.2d 373
23 Fed.R.Serv.3d 391
Carol TSO, individually and as administratrix of the estateof Terry Tso, deceased, Ngan Tso, Andrew Tso, etal., Plaintiffs-Appellants,v.John A. DELANEY, Walworth County, Wisconsin, Benjamin J.Coopman, Jr., et al., Defendants-Appellees.
No. 91-2928.
United States Court of Appeals,Seventh Circuit.
Argued March 3, 1992.Decided July 22, 1992.
Vicki L. Arrowood, Kasdorf, Lewis & Swietlik, Janice A. Rhodes (argued), Milwaukee, Wis., Mark V. Ferrante, Chicago, Ill., J. Ric Gass, Kravit, Gass & Weber, Milwaukee, Wis., for plaintiffs-appellants Carol Tso, Ngan Tso, Andrew Tso, Jamie Choi and Yuen L. Leung.
Mark A. Grady, Donald M. Lieb (argued), Otjen, Vanert, Stangle, Lieb & Weir, Milwaukee, Wis., for defendants-appellees John A. Delaney, Walworth County, Wis., Benjamin J. Coopman, Jr., William Wilson and James Johnson.
Before CUMMINGS, CUDAHY and COFFEY, Circuit Judges.
CUDAHY, Circuit Judge.
1
Terry Tso was killed when his car collided with a county truck engaged in repair operations on a public highway. Members of Tso's family sued Walworth County and four of its employees for negligence in the operation and supervision of the truck. The Tsos' lawyer failed, however, to make proper service of process on the defendants within the required time period. We must decide in this appeal whether good cause exists to excuse that failure. We are also called upon to interpret a provision of Wisconsin law that permits recovery for injuries caused by the negligent operation of a motor vehicle. We affirm in part and reverse in part.
I.
2
Terry Tso's accident occurred on December 20, 1988. His wife, children and other family members, all Illinois residents, commenced this action on November 13, 1989, approximately one month before the statute of limitations was to expire. See Wis.Stat. § 893.80(1)(b). Initially named as defendants were Walworth County, John Delaney (the operator of the Walworth County truck) and the State of Wisconsin.1 Three days later, the Tsos' attorney, Mark V. Ferrante, attempted to effect service on Delaney and Walworth County by sending them copies of the summons and complaint by certified mail. Neither mailing included any copies of the acknowledgment form specified in Fed.R.Civ.P. 4(c)(2)(C)(ii) or a self-addressed, stamped envelope.
3
On November 29, 1989, the County defendants filed their answer, raising insufficiency of service of process as an affirmative defense. The grounds for their objection--that a county cannot be served by mail and that mail service must include acknowledgment forms and return envelopes--were provided to the plaintiffs' counsel in a telephone conversation with the defendants' counsel on December 5, 1989. Following the telephone call, the Tsos' attorney mailed acknowledgment forms to each of the County defendants and to their attorney, but did not send return envelopes. Neither Delaney nor Walworth County returned the form. On March 14, 1990, after the 120-day time limit for service had passed, Delaney and Walworth County moved to dismiss for insufficiency of service of process. The plaintiffs then sought an extension of time in which to effectuate service.
4
The district judge issued three relevant rulings. First, on April 24, 1990, he issued a brief order granting an extension of time in which to effect personal service and denying the County defendants' motion to dismiss as moot.2 Second, approximately two months later, on June 29, 1990, he decided to "reconsider whether [he had] properly granted plaintiffs an extension of time in which to effectuate service," and reinstated the defendants' motion to dismiss.3 Finally, approximately a year later, on June 7, 1991, he vacated his earlier order granting an extension of time and granted the County defendants' motion to dismiss for insufficient service, concluding that the plaintiffs had not demonstrated good cause for their failure to make proper service within the required time period.
5
Meanwhile, new claims and new parties had been added in amendments to the Tsos' complaint. In July 1990, the plaintiffs added allegations of willful and wanton actions on the part of Delaney and Walworth County. In August 1990, the plaintiffs added as defendants three Walworth County employees, Benjamin J. Coopman, William Wilson and James Johnson, alleging that these defendants had inadequately instructed and supervised Delaney on highway maintenance procedures. (We refer to the latter three defendants as the Supervisory defendants, and to Delaney and Walworth County as the County defendants.)
II.
6
It is undisputed that service of process was not properly made on the County defendants within the initial 120-day period established by Federal Rule of Civil Procedure 4(j). Rule 4(j) requires dismissal in such a case unless the plaintiff can show "good cause" why service was not made within the 120-day period.4 Service on the County defendants was inadequate because it did not comply with the requirements of Rule 4(c): the acknowledgment forms, which were eventually mailed to the defendants, were never returned (and, in addition, had not been accompanied by return envelopes in the first place).5 Service by mail (which has been authorized only since 1983) is not complete unless the acknowledgment form is returned by the defendant. Adatsi v. Mathur, 934 F.2d 910, 911-12 (7th Cir.1991).6
7
We must decide whether the district court erred in finding that the plaintiffs failed to show "good cause" to excuse their failure to make timely service. Our review is quite limited: we will not overturn such a decision unless the district court abused its discretion. Floyd v. United States, 900 F.2d 1045, 1046 (7th Cir.1990); Geiger v. Allen, 850 F.2d 330, 333 (7th Cir.1988).
8
We cannot say that the district court abused its discretion. Rule 4(j) ensures some flexibility in a determination of good cause, and the range of factors that may be considered by the district judge is not rigidly cabined. One thing that is clear from the cases, however, is that simple attorney neglect, without more, cannot serve as the basis for a finding of good cause under Rule 4(j). Floyd, 900 F.2d at 1047; Powell v. Starwalt, 866 F.2d 964, 965 (7th Cir.1989); Geiger, 850 F.2d at 333. Here we have attorney neglect, accompanied by nothing on the order of the "substantial extenuating factors such as sudden illness or natural disaster" suggested in Floyd, 900 F.2d at 1047.
9
The Tsos argue that their attorney exercised diligence and had a reasonable belief that he had met the service requirements of Rule 4. The attorney was on notice by November 29, 1989, when the County defendants filed their answer, that sufficiency of process was at issue. Even after the December 5 telephone call, more than a month remained to correct the deficiency.7 Yet the Tsos' attorney never received the acknowledgment forms from the defendants, never attempted personal service and thus failed to make proper service. The plain language of the mail service rule (Rule 4(c)(2)(C)(ii)) insists that the acknowledgment form be returned; indeed, it goes further, requiring that, if the form is not returned within 20 days, service "shall be made" by other means. The plaintiffs' strongest argument is that the courts have not been completely consistent in holding that service is incomplete until the acknowledgment form has been returned. They rely heavily on the Second Circuit's decision in Morse v. Elmira Country Club, 752 F.2d 35, 39-42 (2d Cir.1984), in which the court held that mail service can be valid when it is received, even though the defendant fails to return the acknowledgment form. Every other circuit to rule on the issue has rejected the Morse rule. Media Duplication Services, Ltd. v. HDG Software, Inc., 928 F.2d 1228, 1233-34 (1st Cir.1991); Green v. Humphrey Elevator & Truck Co., 816 F.2d 877, 879-80 (3d Cir.1987); Armco, Inc. v. Penrod-Stauffer Bldg. Systems, Inc., 733 F.2d 1087, 1089 (4th Cir.1984); Norlock v. City of Garland, 768 F.2d 654, 657 (5th Cir.1985); Friedman v. Estate of Presser, 929 F.2d 1151, 1156 (6th Cir.1991); Gulley v. Mayo Foundation, 886 F.2d 161, 165 (8th Cir.1989); Worrell v. B.F. Goodrich Co., 845 F.2d 840, 841-42 (9th Cir.1988), cert. denied, 491 U | {
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-7922
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DONIKKI HARDY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry M. Herlong, Jr., Senior
District Judge. (7:01-cr-00235-HMH-1)
Submitted: April 14, 2016 Decided: April 22, 2016
Before WILKINSON and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Donikki Hardy, Appellant Pro Se. Carrie Fisher Sherard,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Donikki Hardy appeals from the district court’s orders
denying his Fed. R. Crim. P. 36 motion and his motion for
reconsideration. Hardy sought to delete information from his
presentence report (“PSR”) that had been expunged by the state
court. Because the relief he seeks is not available by way of
Rule 36, we affirm.
Rule 36 provides that “[a]fter giving any notice it
considers appropriate, the court may at any time correct a
clerical error in a judgment, order, or other part of the
record, or correct an error in the record arising from oversight
or omission.” The Advisory Committee Notes to Rule 36 point out
that Rule 36 is similar to Fed. R. Civ. P. 60(a), which provides
for the correction of clerical mistakes in civil orders. The
Ninth Circuit explained the type of clerical mistakes that may
be corrected under Rule 60(a) as follows:
The basic distinction between “clerical mistakes” and
mistakes that cannot be corrected pursuant to Rule
60(a) is that the former consist of “blunders in
execution” whereas the latter consist of instances
where the court changes its mind, either because it
made a legal or factual mistake in making its original
determination, or because on second thought it has
decided to exercise its discretion in a matter
different from the way it was exercised in the
original determination.
Blanton v. Angelone, 813 F.2d 1574, 1577 n.2 (9th Cir. 1987)
(citation omitted).
2
Here, the PSR was not incorrect when issued, and in fact is
not currently incorrect. Hardy does not submit that the
challenged information was included by mistake and does not
assert that it is false or that he should have been sentenced
differently. Instead, he seeks to alter the PSR based on a
later state order that does not even purport to apply to federal
documents. Because the relief sought by Hardy does not consist
of a “blunder in execution,” the district court cannot provide
relief under Rule 36. *
Accordingly, we affirm. 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
*Hardy’s conclusory allegations regarding the prejudice to
him are matters which require factual development and
administrative exhaustion within the Bureau of Prisons.
Depending on the actual harm, his remedy may lie under 28 U.S.C.
§ 2241 (2012), or Bivens v. Six Unknown Federal Narcotics
Agents, 403 U.S. 388 (1971).
3
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759 N.E.2d 138 (2001)
325 Ill. App.3d 544
259 Ill.Dec. 658
The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Milos MANDIC, Defendant-Appellant.
No. 2-00-1240.
Appellate Court of Illinois, Second District.
October 31, 2001.
*140 Milos Mandic, Cary, Pro Se.
Michael J. Waller, Lake County State's Attorney, Waukegan, Martin P. Moltz, Deputy Director, Sally A. Swiss, State's Attorneys Appellate Prosecutor, Elgin, for the People.
Presiding Justice HUTCHINSON delivered the opinion of the court:
Following a bench trial, defendant, Milos Mandic, was found guilty of violation of an order of protection (720 ILCS 5/12-30 (West 2000)) and sentenced to 12 months' *141 supervision. Defendant timely appeals, contending the State failed to prove him guilty beyond a reasonable doubt. Defendant argues that (1) the State failed to prove that he did not have a right to be present at the church where he allegedly violated the stay-away provision of the order by contacting his children, and (2) the State failed to prove he acted intentionally because the trial court improperly applied an unstated mandatory presumption that any contact with a protected person constituted a criminal violation. We affirm.
When a defendant challenges the sufficiency of the evidence, the same standard of review applies to both jury trials and bench trials. People v. Patterson, 314 Ill.App.3d 962, 969, 248 Ill.Dec. 534, 734 N.E.2d 462 (2000). The applicable standard is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of a crime beyond a reasonable doubt. Patterson, 314 Ill.App.3d at 968-69, 248 Ill.Dec. 534, 734 N.E.2d 462, citing People v. Collins, 106 Ill.2d 237, 261, 87 Ill.Dec. 910, 478 N.E.2d 267 (1985). In a bench trial, the court is presumed to know the law, and this presumption may only be rebutted when the record affirmatively shows otherwise. People v. Kelley, 304 Ill.App.3d 628, 639, 237 Ill.Dec. 740, 710 N.E.2d 163 (1999). "The trier of fact in a bench trial is not required to mention everythingor, for that matter, anythingthat contributed to its verdict." People v. Curtis, 296 Ill.App.3d 991, 1000, 231 Ill.Dec. 380, 696 N.E.2d 372 (1998). If the record contains facts that support the trial court's finding, the reviewing court may consider those facts to affirm the finding, even if the trial court did not state specifically that it relied on them. Curtis, 296 Ill.App.3d at 1000, 231 Ill.Dec. 380, 696 N.E.2d 372.
The common law recognized that a crime required both actus reus, a guilty act, and mens rea, a guilty mind, and, with the exception of certain absolute liability offenses, the Criminal Code of 1961 (the Criminal Code) (720 ILCS 5/1-1 et seq. (West 2000)) retains this distinction. Compare 720 ILCS 5/4-1 (West 2000) ("Voluntary Act") with 720 ILCS 5/4-3 (West 2000) ("Mental State"). In this case the State was required to prove that defendant (1) committed an act prohibited by an order of protection, or failed to commit an act ordered by an order of protection, and (2) he had been served notice of or otherwise acquired actual knowledge of the contents of the order. (720 ILCS 5/12-30(a) (West 2000)).
At trial defendant stipulated that at the time of the alleged violation a valid order of protection was in effect that required him to stay away from his ex-wife and their children. On appeal defendant concedes the validity of the order.
Initially we wish to clarify that, although defendant raises the issue obliquely in his brief, freedom of religion (see U.S. Const., amend I; Ill. Const.1970, art. I, § 3) is not an issue in this case. The trial court did not construe the order of protection to prohibit defendant from exercising the religion of his choice or prohibit defendant from entering any specific place of worship. The analysis applied by the trial court, and our own, applies equally to a church, shopping center, sports arena, library, or any other place generally open to the public.
Defendant argues that the State failed to prove that he did not have a right to be present in the church or the church social hall. However, the State was not required to prove that defendant was present in the church unlawfully. Section 214(b)(3) of the Illinois Domestic Violence Act of 1986 (the Act) allows a trial court to:
*142 "Order respondent to stay away from petitioner or any other person protected by the order of protection, or prohibit respondent from entering or remaining present at * * * specified places at times when petitioner is present, or both, if reasonable, given the balance of hardships. Hardships need not be balanced for the court to enter a stay away order or prohibit entry if respondent has no right to enter the premises." (Emphasis added.) 750 ILCS 60/214(b)(3) (West 2000).
In the present case, the order of protection contained only a general stay-away provision and did not prohibit defendant from entering or remaining at any specific location. There is no evidence that defendant argued that the stay-away provision would impose a hardship on him by limiting his right to enter the church. However, even if he had asserted that right, defendant's right to be present is not a defense to a violation of the admittedly valid order of protection; it is just one of many factors that the court that entered the order would have been required to consider before granting relief. See 750 ILCS 60/214(c)(2) (West 2000). Therefore, the issue is not whether defendant had a right to be in the church; the issue is whether a trier of fact could conclude that by exercising that right defendant violated the provision requiring him to stay away from his children. See People v. Zamudio, 293 Ill. App.3d 976, 983, 228 Ill.Dec. 382, 689 N.E.2d 254 (1997) (considering a constitutional right-to-travel challenge to the "following" element of a conviction for stalking).
Defendant argues that the trial court presumed that all contact constituted a violation of the stay-away order and thereby violated his right to be presumed innocent. Although defendant devotes a significant portion of his brief to knocking down this straw man, we find no factual basis for this argument in the record. Instead, we find that the trial court's comments reveal that it considered a variety of factors, including defendant's right to visit the church, his knowledge that the children would be present, and whether defendant had an opportunity to avoid an encounter with his children. Therefore, we conclude that the trial court did not apply a mandatory presumption but, rather, fulfilled its duty to construe the undefined phrase "stay away" in light of its ordinary and popularly understood meaning and the facts of this case. See People v. Stork, 305 Ill.App.3d 714, 723, 238 Ill.Dec. 941, 713 N.E.2d 187 (1999).
Defendant also argues that the trial court improperly held that the State was not required to prove intent. During the trial defendant asked a witness whether defendant had expressed his intent to see his ex-wife prior to arriving at the church, and the State objected. The trial court's comments in response to that objection did suggest that defendant's intent was irrelevant. However, motive is irrelevant, and the State was not required to prove that defendant went to the church because he wanted to see his children or that the encounter was the result of a preconceived plan. See People v. Gee, 276 Ill.App.3d 198, 201, 213 Ill.Dec. 38, 658 N.E.2d 508 (1995). Viewed in context, it appears the trial court's comments regarding "intent" were actually intended to address the question of motive. Moreover, in response to defendant's posttrial motion, the trial court clearly stated that it had found beyond a reasonable doubt that defendant acted intentionally and any failure to mention intent when announcing its original finding of guilt was inadvertent. Therefore, we find that the trial court did not improperly treat defendant's conduct as a strict liability offense.
*143 Although we are aware of no case law interpreting the phrase "stay away," we find the case law interpreting the "following" element of stalking instructive. See People v. Bailey, 167 Ill.2d 210, 229, 212 Ill.Dec. 608, 657 N.E.2d 953 (1995). We determine that, like "following," a violation of a stay-away order does not encompass aimless, unintentional, or accidental conduct. See Bailey, 167 Ill.2d at 229, 212 Ill.Dec. 608, 657 N.E.2d 953. The term "stay away" implies proximity in time and space. Whether a defendant who is otherwise lawfully present in a public place comes within sufficient proximity of a protected person who is also present there to constitute a violation of a stay-away order | {
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172 N.J. Super. 406 (1980)
412 A.2d 461
IN THE MATTER OF COUNTY OF MERCER, APPELLANT,
v.
MERCER COUNTY SUPERINTENDENT OF ELECTIONS AND MERCER COUNCIL # 4, NEW JERSEY CIVIL SERVICE ASSOCIATION, RESPONDENTS.
Superior Court of New Jersey, Appellate Division.
Argued January 8, 1980.
Decided February 28, 1980.
*407 Before Judges CRANE, MILMED and KING.
Linda Feinberg argued the cause for appellant (Harvey L. Stern, Mercer County Counsel, attorney).
Janice S. Mironov, Deputy Attorney General, argued the cause for respondent Mercer County Superintendent of Elections (John J. Degnan, Attorney General, attorney; Stephen Skillman, Assistant Attorney General, of counsel).
*408 Richard H. Greenstein argued the cause for respondent Mercer Council # 4, New Jersey Civil Service Association (Fox and Fox, attorneys).
James F. Schwerin, Deputy General Counsel, argued the cause for Public Employment Relations Commission (Sidney H. Lehmann, General Counsel, attorney).
The opinion of the court was delivered by CRANE, P.J.A.D.
Mercer County appeals from a final administrative determination of the Public Employment Relations Commission affirming a decision of the Director of Representation holding, pursuant to N.J.S.A. 34:13A-6, that the Superintendent of Elections rather than the county was the employer of the personnel in his office for the purposes of collective negotiation.
The county urges on this appeal that under the provisions of the Optional County Charter Law, N.J.S.A. 40:41A 1 et seq., it is the employer of the employees serving under the Superintendent of Elections. In support of its position the county points to the fact that the employees are paid by the county, they perform their duties in facilities provided by the county, they use supplies furnished by the county and their personnel records are kept under centralized procedures applicable to county employees generally. The county argues that it was the intent of the Legislature in adopting the Charter Law to vest centralized control of county government in a chief executive and an elected board of chosen freeholders. The county acknowledges that N.J.S.A. 19:32-27 empowers the Superintendent to appoint the employees and fix their salaries but contends that provision has been impliedly repealed by N.J.S.A. 40:41A 26(c) and that by virtue of the Mercer County Administrative Code the County Executive has been designated as the individual to conduct collective negotiations with employee groups, subject to approval and acceptance by the freeholders. For good measure, the county contends, without citation of any authority, that to *409 permit a nonelected official to enter into a binding agreement which would obligate the taxpayers to carry additional financial burdens would be a deprivation of the republican form of government guaranteed by the United States Constitution.
We find no merit in any of the county's contentions.
It is undoubtedly true that the goal of the Charter Law is to give counties greater control over their own internal situations and fiscal affairs. N.J.S.A. 40:41A 26. But the Charter Law was not intended to infringe on the powers and duties of other units of government established under the general laws of the State. N.J.S.A. 40:41A 28. Thus, counties do not have control over the salaries of probation officers, In re Salaries Probation Officers Hudson Cty., 158 N.J. Super. 363 (App. Div. 1978), certif. den. 78 N.J. 339 (1978), or the fiscal affairs of county colleges and vocational schools, Mercer Cty. Commun. College Bd. Trustees v. Sypek, 160 N.J. Super. 452 (App.Div. 1978), certif. den. 78 N.J. 327 (1978).
The office of County Superintendent of Elections has repeatedly been held to be a state rather than a county office. Meredith v. Mercer Cty. Bd. of Chosen Freeholders, 117 N.J. Super. 379, 385 (Law Div. 1970), aff'd 117 N.J. Super. 368 (App.Div. 1971), aff'd 59 N.J. 530 (1971); Keenan v. Essex Cty. Bd. of Chosen Freeholders, 101 N.J. Super. 495 (Law Div. 1968), aff'd 106 N.J. Super. 312 (App.Div. 1969); McDonald v. Bd. of Chosen Freeholders, 99 N.J.L. 393 (E. & A. 1924). Moreover, the employees of the Superintendent's office have been generally regarded as state employees. MacPhail v. Hudson Cty. Bd. of Chosen Freeholders, 6 N.J. Super. 613 (Law Div. 1950).
We reject the suggestion of the county that the appointment and salary provisions of N.J.S.A. 19:31 2 and 19:32-27 are impliedly repealed by N.J.S.A. 40:41A 26(c). In enacting legislation the Legislature is presumed to be familiar with its own prior enactments. Brewer v. Porch, 53 N.J. 167, 174 (1969). The intention to repeal a prior statute must be manifest and the language of the repealing statute must be such that it permits *410 no other reasonable interpretation, since repeals by implication are not favored. State v. States, 44 N.J. 285, 291 (1965). We find no legislative intent in N.J.S.A. 40:41A 26(c) to repeal or modify the provisions of N.J.S.A. 19:31 2 or N.J.S.A. 19:32 27. Nor do we perceive any relationship whatsoever between the determination that the Superintendent of Elections is the appropriate officer to engage in collective negotiations with his employees and the constitutional guaranty of a republican form of government. Essentially such a question is a political rather than a justiciable question. Ohio ex rel. Bryant v. Akron Metrop. Pk. Dist., 281 U.S. 74, 50 S.Ct. 228, 74 L.Ed. 710 (1930).
We attach no importance to the fact that the county maintains the personnel records of the employees, nor is the fact that the county pays the salaries determinative of the identity of the employer. See In re Brennan, 126 N.J. Super. 368 (App. Div. 1974). The determination made by the Director and affirmed by the Commission was based on traditional indicia of employer control and status and is entitled to our respect and affirmance unless shown to be clearly arbitrary and capricious. State v. Prof. Assoc. of N.J. Dep't of Ed., 64 N.J, 231, 259 (1974). We are not persuaded that the determination was arbitrary or capricious. We are fully satisfied that it is reasonable and is consonant with established principles of law.
Affirmed.
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672 F.2d 978
109 L.R.R.M. (BNA) 2911, 93 Lab.Cas. P 13,310
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.HASBRO INDUSTRIES, INC., Respondent,Local 26L, Graphic Arts International Union AFL-CIO, Intervenor.
No. 81-1227.
United States Court of Appeals,First Circuit.
Argued Sept. 17, 1981.Decided Feb. 3, 1982.
Christine Weiner, Washington, D. C., with whom William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Peter M. Bernstein and Lawrence J. Song, Washington, D. C., were on brief, for petitioner.
Roger S. Kaplan, New York City, with whom Neil M. Frank, Jo-Anne P. Morley, and Jackson, Lewis, Schnitzler & Krupman, New York City, were on brief, for respondent.
Eugene Cotton, Chicago, Ill., with whom Cotton, Watt, Jones, King & Bowlus, Chicago, Ill., was on brief, for intervenor.
Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, and MURRAY,* Senior District Judge.
LEVIN H. CAMPBELL, Circuit Judge.
1
The National Labor Relations Board petitions for enforcement of its order finding Hasbro Industries, Inc.1 guilty of unfair labor practices and ordering it to bargain with Local 26L, Graphic Arts International Union, AFL-CIO (the Union).
2
Hasbro manufactures and distributes toys, printed materials and related products. It has four facilities in New England, but the dispute before us relates only to a group of printing employees at its main plant located on Newport Avenue, Pawtucket, Rhode Island. One of the principal operational divisions there was the packaging and box-making department, managed by Mr. Sidney Feldman and manned by approximately 45 employees. Within that department was a printing section,2 consisting at first of 18, and later 15, employees. It is these printing employees with whom we are here concerned.
3
On January 24, 1977, the Union wrote Hasbro requesting recognition as the bargaining agent of its printing and lithographic employees based on authorization cards signed by 11 of the 18 employees then in the printing section. On the same day, the Union initiated a representation proceeding before the Board. A few days later, Hasbro advised the Union that its representation claim would have to await the outcome of that Board proceeding.
4
After a hearing on the Union's petition, the Regional Director determined that the printing unit was appropriate and directed an election. As noted, this unit had 18 employees initially, but by the time of the election it had only 15 by reason of a reduction in force. Originally scheduled for June 1977, the election was postponed at Hasbro's request pending Board review of the Regional Director's decision. That decision was affirmed on or about November 21, 1977, and the election was finally held on December 16, 1977, resulting in seven votes for and eight votes against the Union. (Three additional votes cast by employees who had been laid off as the result of the reduction in force were challenged by Hasbro and invalidated by the Board.)
5
On December 22, 1977, the Union filed objections to the election. These were sustained by the Regional Director on February 6, 1978, who ordered a second election. On February 16, 1978, the Union filed unfair labor practice charges against Hasbro, and the second election was deferred pending determination of these.
6
Hearings before an administrative law judge (ALJ) were held in 1978 and 1979 on these and later-filed charges, and the ALJ rendered an opinion in August 1980. While rejecting several of the General Counsel's charges, the ALJ found that Hasbro had committed a series of unfair labor practices, both before and after the election, in violation of section 8(a)(1) of the Act. 29 U.S.C. § 158(a)(1).3 He further found that Hasbro's refusal to bargain with the Union violated section 8(a)(5), 29 U.S.C. § 158(a)(5), and that its conduct was such as to make the holding of a fair election impossible. He accordingly recommended, in addition to cease and desist orders and the posting of notice, that a Gissel order be entered,4 directing Hasbro to bargain with the Union, as representative of its printing employees. The Board substantially accepted the ALJ's findings and recommendations, and this enforcement proceeding followed.
7
Hasbro now challenges the Board's findings and rulings, asserting that they are unsupported in fact and legally incorrect. In reviewing the Board's action, we shall first consider its findings of section 8(a)(1) violations, and, at the end, shall consider whether the bargaining order was warranted.
THE UNFAIR LABOR PRACTICES
8
1. Wage Increases to Three Employees before the Election
9
Wage increases were granted to three unit employees-Moreira, Tinley and Goyette-on November 28, 1977. The election was thereafter held on December 16, 1977, that date having been announced on November 21, 1977. The ALJ found that these increases violated section 8(a)(1) because "expressly timed to influence employees in the election." Hasbro responds by pointing out that the increases had been scheduled towards the beginning of 1977 and were therefore merely the consummation of earlier plans made entirely without reference to the election.
10
The evidence is undisputed that on January 10, 1977, Mr. Feldman, the department manager, scheduled, and listed on the payroll, projected wage increases for Tinley and Moreira. He did the same for Goyette sometime in April 1977, when Goyette was reclassified to a higher grade. Feldman's notations indicated that during 1977 Moreira would go from $4.60 to $5.40 in three steps: a 30-cent increase on February 1, 1977; a 25-cent increase on August 1, 1977; and a 25-cent increase on December 1, 1977. Tinley was listed as going from $3.45 to $3.90 in two steps: a 20-cent increase on July 1, 1977, and a 25-cent increase on December 1, 1977. Goyette was listed as being entitled to three increases: 20 cents on July 20, 1977; 20 cents on October 20, 1977; and 25 cents on November 20, 1977.
11
The record shows that in the case of Moreira and Tinley the planned raises were all implemented within a short time of the scheduled dates.5 Goyette's schedule was similarly implemented, except the increase slated for October 20, 1977, was inexplicably omitted. The raises here challenged-all put in effect on November 28-were those scheduled for Moreira and Tinley on December 1, and for Goyette on November 20.
12
We think there is insufficient evidence to support the ALJ's finding that the increases were "timed" to influence the election. The timing had been determined long before the election was scheduled, and the Company had thereafter followed its schedule with a considerable degree of fidelity.
13
The ALJ, indeed, did not question the Company's evidence showing that the increases for Moreira and Tinley had been projected before the Union had requested recognition, and, for Goyette, reflected an increase in grade and was planned well before anyone knew there would be an election in mid-December of 1977. Nor is there any doubt that the dates originally scheduled for implementing the raises preceded the election by some several weeks. Under these circumstances, we see no basis for holding that the raises on November 28 were improper under the Act.
14
Conferral of employee benefits while a representation election is pending for the purpose of inducing employees to vote against the Union interferes with the employees' protected right to organize, NLRB v. Exchange Parts Co., 375 U.S. 405, 84 S.Ct. 457, 11 L.Ed.2d 435 (1964). However, the presumption of illegality of wage increases and other benefits granted during the pendency of a union election is negated if the employer establishes that the conferral and announcement of such benefits are consistent with established company practice or were planned and settled upon prior to the initiation of the Union's organization campaign. Louisburg Sportswear Co. v. NLRB, 462 F.2d 380, 384 (4th Cir. 1972); NLRB v. Otis Hospital, 545 F.2d 252, 255 (1st Cir. 1976) (where the prospective benefits were already incorporated in the existing terms and conditions of employment, an employer could grant the benefits without fear of violating section 8(a)(1)).
15
Here there can be no serious contention that the wage increases were not part of an established company procedure. In fact, the ALJ found that "at some point" the three individuals would have received the raises. The Board's unfair practice finding seems to have entirely rested on its surmise that the timing of the wage increases was advanced to before the election so as to influence its result. This would have been improper. NLRB v. Styletek, 520 F.2d 275 (1st Cir. 1975). But in a case such as Styletek | {
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821 F.2d 1348
125 L.R.R.M. (BNA) 3178, 107 Lab.Cas. P 10,010
WAREHOUSEMEN'S UNION LOCAL NO. 206, affiliated with theInternational Brotherhood of Teamsters and Helpersof America, Plaintiff-Appellee,v.CONTINENTAL CAN COMPANY, INC., a foreign corporation,Defendant-Appellant.
No. 86-4044.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted June 4, 1987.Decided July 7, 1987.
Josephine B. Vestal, Bellevue, Wash., for defendant-appellant.
Stephen H. Buckley and Paul C. Hays, Portland, Or., for plaintiff-appellee.
Appeal from the United States District Court for the District of Oregon.
Before FARRIS and BRUNETTI, Circuit Judges, and INGRAM, District judge.*
FARRIS, Circuit Judge:
BACKGROUND
1
Local No. 206 represents all of the shipping department employees at the Continental Can Company's Portland plant. The company and the union had a collective bargaining agreement from 1981 to 1984. When that agreement terminated in May, 1984, the parties began negotiations for a successor agreement. One topic discussed in negotiations was the company's plan to engage an independent contractor to cover all its transportation needs. In September, a contract covering the period 1984 to 1986 was ratified by the membership. The new contract made brief mention of the company's intent to subcontract its transportation operations. In December the company, acting on its interpretation of the subcontracting clause, laid off all of its union truck drivers and arranged for an independent labor broker to provide drivers. The union contended that the company could contract with another company for transportation, but that "as long as Continental Can Company has a truck fleet, Local 206 will drive them."
2
The union first petitioned the regional director of the NLRB, on the theory that the company's hiring of nonunion drivers violated the National Labor Relations Act. The regional director declined to issue a complaint against the company, and his decision was affirmed by the NLRB's General Counsel. The union then filed a grievance under the contract alleging that the company had violated the provision that nonunion persons cannot be employed to do bargaining-unit work. After the company refused to go to binding arbitration on the issue, the union sought an order in the district court compelling arbitration. The court held that the dispute concerned the terms of the 1984-1986 agreement, and therefore that it came under the agreement's mandatory arbitration clause. The court granted summary judgment for the union and ordered that the dispute be submitted to an arbitrator.
3
On appeal, the company contends that the 1984-1986 agreement never went into effect because the parties did not agree on the meaning of its language. It argues alternatively that the decision of the NLRB not to issue a complaint against the company resolved the issue, precluding this suit.
4
In reviewing summary judgment, we must determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir.1986). We affirm.
DISCUSSION
5
I. Was there a contract?
6
The company submitted its final offer for a new contract on September 24, 1984. On September 29, the membership voted to accept the offer. The company was advised of the acceptance. The new contract consisted of the 1981-1984 agreement as modified by the company's written final offer. The relevant part of that final offer provided:
7
Also, as discussed during our meeting on September 21, 1984, competitive pressures require that we discontinue our Company-operated fleet at the Portland operation. Our Traffic Department has been advised to develop a timetable and program to provide outside coverage for our transportation requirements. Once that program is finalized, I will review that program with your office.
8
Months later, the company prepared a draft of the new contract. The union objected that the draft did not reflect the agreement that was reached in negotiations, and refused to sign it. The company then laid off all of its union truck drivers and contracted with an independent labor broker to supply drivers for the company truck fleet.
9
Until the time that it refused to go to arbitration, the company's actions indicated its understanding that a valid collective bargaining contract existed. It began implementing the terms of the final offer that was incorporated in the contract. Its decision to hire outside drivers for its truck fleet was purportedly done under authority of the final agreement. Despite those actions, the company contends that the contract was nullified because the parties never agreed on the substantive terms. It argues in effect that the parties were so far apart in their understanding of the language in the final offer that there was no meeting of the minds, and hence no contract.
10
None of the relevant facts are in dispute. The only question is, given these facts, did the parties have a contract as a matter of law? In determining whether a contract was formed, the court employs "general contract principles adapted to the collective bargaining context to determine whether the two sides have reached an agreement." Cf. NLRB v. World Evangelism, Inc., 656 F.2d 1349, 1355 (9th Cir.1981). Normal rules of offer and acceptance govern in collective bargaining. Teamsters, Chauffeurs, Warehousemen & Helpers Local 524 v. Billington, 402 F.2d 510, 513 n. 2 (9th Cir.1968); Operating Engineers Pension Trust v. Cecil Backhoe, 795 F.2d 1501, 1504 (9th Cir.1986).
11
The company's final offer, and the union's acceptance by ratification of the membership, bear all the outward indicia of a valid contract. Union acceptance of an employer's final offer is all that is necessary to create a contract, regardless of whether either party later refuses to sign a written draft. NLRB v. Deauville Hotel, 751 F.2d 1562, 1569 n. 10 (11th Cir.1985); Teamsters v. Billington, 402 F.2d at 513; Service Employees Int'l Local No. 55 v. Cedar Rapids Community School Dist., 222 N.W.2d 403, 405 (Iowa 1974) (manifestation of assent to same terms, reached by process of offer and acceptance, required for valid contract). The court may consider the surrounding circumstances and the intentions of the parties to determine if a collective bargaining agreement exists. Operating Engineers Pension Trust v. Gilliam, 737 F.2d 1501, 1504 (9th Cir.1984). The union argues that the company's behavior prior to the bringing of this suit shows that it believed that a contract existed. However, where there are objective manifestations of the parties' intent to create a contract, the court need look no further. Caporale v. Mar Les, Inc., 656 F.2d 242, 244 (7th Cir.1981). See also 1 Williston on Contracts Sec. 20 (3d ed. Jaeger 1961); 17 C.J.S. Contracts Sec. 32; Huge v. Overly, 445 F.Supp. 946, 949 (W.D.Pa.1978) (objective standard applies to formation of contract, regardless of meeting of minds in subjective sense); United States v. Roberts, 436 F.Supp. 553, 557-58 (E.D.Tx.1977) (to determine whether parties agreed to terms of contract, it is objective, not subjective intention of parties that the court must ascertain).
12
It thus falls to the company to demonstrate that, although its agreement with the union has the outward appearance of a valid contract, there was no meeting of the minds because the parties understood entirely different things by the written terms of the agreement. See U.S. for Use and Benefit of Union Bldg. Materials Corp. v. Haas & Haynie Corp., 577 F.2d 568, 573 (9th Cir.1978) (If neither party knows or has reason to know the meaning attached by the other to an ambiguous clause, there is no contract.) (citing Restatement (Second) of Contracts Sec. 21A(1)). See also BA Mortgage Co. v. Unisal Development Corp., 469 F.Supp. 1258, 1267-68 (D.Colo.1979) (Where parties in good faith ascribe different meanings to a material term of a contract, there is no meeting of the minds, and no valid contract.); Walther & CIE v. United States Fidelity & Guaranty Co., 397 F.Supp. 937, 941 (M.D.Pa.1975) (If the court is convinced that the parties gave substantially different meanings to the words of an agreement, there is no contract.)
13
However, "[t]he fact that differences subsequently arise between the parties as to the construction of the contract ... is not of itself sufficient to affect the validity of the original contract or to show that the minds of the parties did not meet with respect thereto." 17 C.J.S. Contracts Sec. 31. See Benjamin Foster Co. v. Commonwealth, 318 Mass. 190, 61 N.E.2d 147, 150-51 (1945) ("The fact that an executed written contract contains within itself difficulties of construction | {
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Order entered December 19, 2018
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-01156-CV
No. 05-18-01350-CV
IN THE INTEREST OF N.E.C., A CHILD
On Appeal from the 301st Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-97-20578
ORDER
Before the Court are appellant’s November 16, 2018 motion to consolidate and
December 13, 2018 notice of withdrawal of motion to consolidate. We GRANT appellant’s
notice of withdrawal and withdraw the motion to consolidate from the Court’s consideration.
The Court has reviewed the clerk’s record in appellate cause number 05-18-01156-CV
and finds that it is incomplete as it does not contain the appealed order, among other documents.
On December 13, 2018, appellant filed a motion requesting additional time to request a
supplemental clerk’s record and any additional reporter’s records he may need and for additional
time to file his brief. Appellant has filed courtesy copies of her request to Dallas County District
Clerk Felicia Pitre requesting a supplemental clerk’s record with fifty-one additional documents
and request to Shantel Beheler, Official Court Reporter for the 301st Judicial District Court, for
reporter’s records from seven additional hearings. We GRANT appellant’s motion as follows:
We ORDER Ms. Pitre to file, by December 28, 2018, a supplemental clerk’s record containing
the requested documents. We ORDER Ms. Beheler to file, by January 29, 2019, the additional
requested reporter’s records.
Appellant shall file his brief by February 28, 2019.
We DIRECT the Clerk of this Court to send a copy of this order to Ms. Pitre, Ms.
Beheler, and all parties.
/s/ ADA BROWN
JUSTICE
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IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 287 WAL 2017
:
Respondent :
: Petition for Allowance of Appeal from
: the Order of the Superior Court
v. :
:
:
THADDEUS THOMAS CRUMBLEY, :
:
Petitioner :
ORDER
PER CURIAM
AND NOW, this 13th day of December, 2017, the Petition for Allowance of
Appeal is DENIED.
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297 F.Supp. 1305 (1969)
Alex CLARK, John T. Magee and Robert Turner, et al., Plaintiffs,
v.
AMERICAN MARINE CORPORATION, a Louisiana Corporation, Defendant.
Civ. A. No. 16315.
United States District Court E. D. Louisiana, New Orleans Division.
April 11, 1969.
Franklin E. White, Robert Belton, New York City, Lolis E. Elie, New Orleans, La., for plaintiffs.
Richard C. Keenan, New Orleans, La., for defendant.
REASONS FOR ORDER
RUBIN, District Judge:
In this action brought under Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e, and under the 1866 Civil Rights Act, 42 U.S.C. § 1981, three former employees of the American Marine Corporation, who allege that they were both discharged and refused re-employment as a result of racial discrimination, seek back pay from the time of their alleged wrongful discharge. In addition, and by separate counts of their complaint, they seek an injunction prohibiting defendant from denying equal employment opportunities to them and other Negroes similarly situated. These counts are class actions.
Rule 23 of the Federal Rules of Civil Procedure, which pertains to class actions, was amended during the pendency of this action and the amendment became effective July 1, 1966. The order of February 28, 1966, of the United States Supreme Court provided that the amended *1306 rule would take effect July 1, 1966, and would "govern * * * all further proceedings in actions then pending, except to the extent that in the opinion of the court their application in a particular action then pending would not be feasible or would work injustice * * *" (86 S.Ct. 211). The application of the amended rule here is entirely feasible and will work no injustice.
If well founded on the merits, this class action is clearly of the type described in Rule 23(b) (2):
"[T]he party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole."
Plaintiffs contend that the members of the class on behalf of whom this action is brought should be defined as, "* * * other Negroes, who (1) may previously have been discharged on account of race; or (2) are presently employed or (3) who may subsequently be employed by the defendant."
There can be no doubt that the portion of the action that seeks injunctive relief is properly maintainable as a class action on behalf of all Negroes presently employed by defendant and those who may hereafter be employed. Jenkins v. United Gas Corp., 5 Cir. 1968, 400 F.2d 28; Oatis v. Crown Zellerbach Corp., 5 Cir. 1968, 398 F.2d 496. Defendant objects only to the inclusion of persons who may previously have been discharged on account of race. Apparently, this objection is founded at least in part upon apprehension that such persons might become entitled to automatic reinstatement or back pay by virtue of their inclusion. But the complaint, which seeks back pay only on behalf of the individually named plaintiffs, makes no mention of reinstatement, and, at the hearing, counsel for plaintiffs denied any intention to seek back pay or reinstatement for anyone other than the individually named plaintiffs. The only relief sought on behalf of Negroes previously discharged is that they be entitled as members of the class seeking injunctive relief to rely upon and be protected by any injunction that may be issued. They shall therefore be included as members of the class.
Plaintiffs suggest that notice to members of the class should not be required. The class action Rule makes notice mandatory in some cases. Rule 23(c) (2). But it contains no mandatory requirement with respect to notice when the class claim is merely one for injunctive relief under Rule 23(b) (2). However, Rule 23(d) (2) provides:
"[T]he court may make appropriate orders: * * * requiring, for the protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in such manner as the court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action."
A class action may of course affect the legal rights of all the members of the class. While the Rules do not make notice mandatory in class actions maintained under Rule 23(b) (2), it has been said that due process requires that those who are bound by a legal action have notice of it, and an opportunity either to be heard in it or to withdraw from it, if they should choose to do so. Eisen v. Carlisle & Jacquelin, 2 Cir. 1968, 391 F. 2d 555, 564-565; Cranston v. Freeman, N.D.N.Y., 1968, 290 F.Supp. 785, 787. See also, Mullane v. Central Hanover Bank and Trust Co., 1950, 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865; Advisory Committee's Note, Proposed Rules of Civil Procedure, 39 F.R.D. 98, 106-107 (1965). Cf., Note, 43 Tulane L.Rev. 369 (1969).
Within 10 days plaintiff shall submit a suggestion for a proposed method of giving notice, and within 5 days thereafter, *1307 defendant shall submit its comments and further suggestions. The court will thereafter issue a further order determining in what manner notice shall be given.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 00-2361
CALVIA LYNN HILL,
Plaintiff - Appellant,
versus
WAL-MART STORES, INCORPORATED,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern Dis-
trict of North Carolina, at Raleigh. James C. Fox, Senior District
Judge. (CA-00-425-5-F(2))
Submitted: March 22, 2001 Decided: March 27, 2001
Before WILKINS, LUTTIG, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Calvia Lynn Hill, Appellant Pro Se. Todd M. Sullivan, WOMBLE,
CARLYLE, SANDRIDGE & RICE, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Calvia Lynn Hill appeals the district court’s order granting
summary judgment in this employment discrimination action. We have
reviewed the record and the district court’s opinion and find no
reversible error. Accordingly, we affirm on the reasoning of the
district court. Hill v. Wal-Mart Stores, Inc., No. CA-00-425-5-
F(2) (E.D.N.C. filed Sept. 26, 2000; entered Sept. 27, 2000). We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
2
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797 So.2d 686 (2000)
Jerry M. GRAVOIS, Individually and on Behalf of the Minor Chelsey Lynn Gravois, and Mary Crochet Gravois
v.
DELTA AIRLINES, INC. and Baton Rouge Metropolitan Airport.
No. 99 CA 0824.
Court of Appeal of Louisiana, First Circuit.
May 12, 2000.
Woodrow W. Wyatt, Baton Rouge, Counsel for Plaintiffs/Appellants Jerry M. *687 Gravois, Individually and on Behalf of the Minor Chelsey Lynn Gravois, and Mary Crochet Gravois.
C. Michael Pfister, Dana Anderson-Carson, Metairie, Counsel for Defendants/Appellees Delta Airlines, Inc. and Baton Rouge Metropolitan Airport.
Before: GONZALES, FITZSIMMONS, and WEIMER, JJ.
WEIMER, Judge.
Plaintiffs, Jerry and Mary Crochet Gravois, brought suit against Delta Airlines, Inc. (Delta) and Baton Rouge Metropolitan Airport District (Airport) for personal injuries Jerry Gravois received while performing his duties as an employee of Air Host, Inc. (Air Host), a commercial airline catering service. Defendants, including Fireman's Fund Insurance Company, filed a motion for summary judgment, which was granted by judgment dated November 16, 1998. Plaintiffs perfected this appeal. We affirm.
BACKGROUND
The facts surrounding the incident in question were supplied by Gravois in his deposition. Gravois was interviewed and hired by Cecil Provines, the general manager for Air Host in Baton Rouge, an airline caterer. Gravois began work for Air Host during the latter part of October 1989. Until the day of the accident, he worked with and under the supervision of Jeff Provines. On the day of the accident, November 7, 1989, Jeff Provines was absent because of illness, and Gravois was required to service the planes alone.
The usual routine for servicing the planes was for two Air Host employees to ride on the tarmac to the plane with the driver in the cab of an Air Host truck that was loaded with meals and/or drinks to be placed on the plane. While the jet engines were idling, the Air Host employees would board the plane to place the caterer's food and supplies in the two kitchens and to remove the "leftovers" from the previous flights. After the plane was loaded and the leftovers placed on the Air Host truck, the driver would leave in the truck. The two Air Host employees would station themselves near the door of the plane so they could supply the flight attendant with "bank meals"[1] for any last minute passengers. Once the passengers boarded and all the necessary meals were supplied, the flight attendant signed a receipt, and the Air Host employees returned to the kitchen with any bank meals that had not been needed. The entire procedure did not generally take more than 15 minutes.
On the days that Gravois worked with Jeff Provines, the two men had positioned themselves in the jetway where the passengers were entering in order to have the bank meals at the ready. On the day of the accident, when Gravois was working alone, the jetway was not used for the particular Delta flight that he was loading. The Delta jet had not stopped at the usual gate because of some construction on the tarmac. The passengers were boarding via portable outdoor stairs. After the plane was loaded, Gravois placed himself at the top of the stairs in order to be able to supply the required bank meals.
When the flight attendant signed the receipt and closed the door of the plane, Gravois descended the stairs, picked up the remaining bank meals, and headed toward the kitchen. The driver of the vehicle that transported the stairs drove away *688 from the plane in another direction. This was the first time Gravois had been outside on the tarmac when a flight departed, as all other times he and Jeff Provines had been in the jetway.
Before Gravois could reach his destination, he was overcome with the noise of the jet preparing for takeoff. He dropped the meals he was carrying, covered his ears with his hands, and fell to the ground in pain.
Gravois testified at deposition that Delta never supplied him with any written instructions concerning his duties or any verbal warnings concerning safety while in the vicinity of the planes. However, he admitted he observed various Delta service personnel wearing "ear muffs" while working near the planes. He did not observe Jeff Provines or any other Air Host employees wearing earplugs or other protective devices. Cecil Provines testified Air Host kept earmuffs in the truck, but wearing them was optional with the employees. When questioned about any written safety manual, Gravois admitted when he reported for work on the first day, Cecil Provines gave him "something from American Airlines," but he did not recall what it was.
Shortly after the incident, Gravois attempted to return to work for Air Host, but because of loss of balance, he could not complete the day. On the date of his deposition, he stated he was still classified by his doctors as totally disabled.
In support of their motion for summary judgment, the defendants introduced excerpts from the deposition of Donald R. Kincaid, Air Host's regional vice-president, who testified that Air Host had adopted the series of manuals used by American and Sky Chef. This fact was verified by plaintiffs' witness, Cecil Provines. Excerpts from one such manual were attached as exhibits. The pertinent provision of the section entitled "Work Rules" provides as follows:
3. Protective hearing devices that meet OSHA requirements must be worn at all times when you are in an exposed area on the ramp, i.e., while aircraft engines are running and/or while auxiliary power units (APU) are in operation on the aircraft. Local management will supply these devices. These ear protectors are worn to ensure you have no hearing loss due to continued/excessive noise exposure while performing your duties.
Defendants' exhibits in support of their motion for summary judgment were unrefuted.
DISCUSSION
Appellate courts review summary judgments de novo under the same criteria as those governing the district court's consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991). A motion for summary judgment is properly granted only if there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966; Lejano v. Bandak, 97-0388, pp. 24-25 (La.12/12/97), 705 So.2d 158, 171, cert. denied, 525 U.S. 815, 119 S.Ct. 52, 142 L.Ed.2d 40 (1998).
There are no factual disputes in this matter. On legal issues, the appellate court gives no special weight to the findings of the trial court, but exercises its constitutional duty to review questions of law and renders judgment on the record. See Gonzales v. Xerox Corporation, 320 So.2d 163, 165 (La.1975); State, Louisiana Riverboat Gaming Commission v. Louisiana State Police Riverboat Gaming Enforcement Division, 95-2355, p. 5 (La.App. 1 Cir. 8/21/96), 694 So.2d 316, 319. Accordingly, *689 we have examined the applicable law and conclude the district court correctly granted summary judgment dismissing plaintiff's petition.
A plaintiff in a personal injury action must prove five separate elements: (1) the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) the defendant's conduct failed to conform to the appropriate standard (the breach element); (3) the defendant's substandard conduct was a cause in fact of the plaintiff's injuries (the cause-in-fact element); (4) the defendant's substandard conduct was a legal cause of the plaintiff's injuries (the scope of liability or scope of protection element); and (5) the actual damages (the damages element). Fowler v. Roberts, 556 So.2d 1, 4 (La. 1989), reh. granted on other grounds and original opinion reinstated as supplemented, 556 So.2d 1 (La.1990). A negative answer to any of the inquiries of the duty-risk analysis results in a determination of no liability. Mathieu v. Imperial Toy Corporation, 94-0952, p. 11 (La.11/30/94), 646 So.2d 318, 326. Daye v. General Motors Corporation, 97-1653, p. 9 (La.9/9/98), 720 So.2d 654, 660.
The critical question presented in this case is whether the defendants had a duty either to limit the noise of the jet or to anticipate that authorized personnel on the tarmac would not be wearing ear protection devices. The answer to this question does not require a credibility determination. This is a question of law. See Fowler v. Roberts, 556 So.2d at 4-5. Jets make a substantial amount of noise; there is no duty to operate a jet quietly. The jet was being operated in an ordinary, customary, and appropriate manner, in an appropriate place. The plaintiff had an obligation to conform his activity to the ordinary operation of the jet. There was no duty to conform the operation of the jet to accommodate Gravois. Gravois was working in an airport, in an area where loud jets take off.
Even accepting as true Gravois's version of the accident, the fact that a sudden blast of noise from the aircraft caused him serious injury does not give rise to a duty on the part of Delta or the Airport to anticipate | {
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} |
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 98-1177
___________
In re: Doran Scott Wegner, also known *
as Doran & Denise Wegner, *
*
Debtor. *
*
*
*
Kip M. Kaler, as Bankruptcy Trustee, * Appeal from the United States
* District Court for the District
Appellee, * of North Dakota.
*
v. * [UNPUBLISHED]
*
Elroy Letcher, *
*
Appellant. *
___________
Submitted: June 10, 1998
Filed: July 1, 1998
___________
Before BOWMAN, Chief Judge, BEAM, Circuit Judge, and GAITAN,1 District Judge.
___________
PER CURIAM.
1
The Honorable Fernando J. Gaitan, Jr., United States District Judge for the
Western District of Missouri, sitting by designation.
Elroy Letcher appeals the decision of the district court affirming the order of the
Bankruptcy Court of the District of North Dakota in this adversary bankruptcy
proceeding.
The facts are set forth in detail in the memorandum and order of the bankruptcy
court dated and filed on July 10, 1997. They need not be repeated here.
We are convinced that the well reasoned opinion of the bankruptcy court as
affirmed by the district court correctly discusses and decides the issues in dispute in
this case. Accordingly, no error of law or fact being evident, we affirm. See 8th Cir.
R. 47B.
A true copy.
ATTEST:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-2-
| {
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} |
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