text stringlengths 78 10.6k | meta dict |
|---|---|
990 F.2d 1377
301 U.S.App.D.C. 107
NOTICE: D.C. Circuit Local Rule 11(c) states that unpublished orders, judgments, and explanatory memoranda may not be cited as precedents, but counsel may refer to unpublished dispositions when the binding or preclusive effect of the disposition, rather than its quality as precedent, is relevant.Eileen G.C. EVANS, Appellant,v.The GEORGE HYMAN CONSTRUCTION COMPANY, et al.
No. 92-7055.
United States Court of Appeals, District of Columbia Circuit.
March 29, 1993.
Before: MIKVA, Chief Judge; WILLIAMS and SENTELLE, Circuit Judges.
JUDGMENT
PER CURIAM.
1
This appeal was considered on the record from the United States District Court for the District of Columbia and on the briefs filed by the parties. The court has determined that the issues presented occasion no need for a published opinion. See D.C.Cir.Rule 14(c). It is
2
ORDERED AND ADJUDGED that the district court's memorandum and order filed January 31, 1992, be affirmed. Under the circumstances of this case, denial of reconsideration (and therefore leave to amend the complaint) was within the district court's discretion: None of the excuses offered by appellant for her failure to properly allege diversity jurisdiction warranted reconsideration under Federal Rule of Civil Procedure 60(b). See 6 Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice & Procedure § 1489, at 694 (1990) ("a party moving under Rule 60(b) will be successful [in obtaining leave to amend] only if [s]he first demonstrates that the judgment should be set aside for one of the six reasons specified in the rule"). As this court noted in Naartex Consulting Corp. v. Watt, 722 F.2d 779, 792 n. 21 (D.C.Cir.1983), cert. denied, 467 U.S. 1210 (1984): "While we are cognizant that 'defective allegations of jurisdiction may be amended,' 28 U.S.C. § 1653, courts are not obliged to indulge litigants indefinitely, especially when their amendments constitute futile gestures."
3
Upon consideration of the motion for leave to amend the complaint, the oppositions thereto, and the reply, it is
4
FURTHER ORDERED that the motion for leave be dismissed as moot.
5
The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C.Cir.Rule 15.
| {
"pile_set_name": "FreeLaw"
} |
201 P.3d 1 (2009)
STATE
v.
MILLER.
No. 99998.
Court of Appeals of Kansas.
February 13, 2009.
Decision without published opinion. Affirmed.
| {
"pile_set_name": "FreeLaw"
} |
Filed
Washington State
Court of Appeals
Division Two
June 9, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 51874-1-II
Respondent,
v.
ANDREW FLOYD HIEB, UNPUBLISHED OPINION
Appellant.
SUTTON, J. — Andrew Floyd Hieb appeals his convictions for two counts of first degree
child rape, one count of first degree child molestation, one count of first degree attempted rape of
a child, and one count of second degree child molestation.
Hieb argues that the State’s arguments during closing were improper and prejudicial, and
violated his right to a fair trial. The asserted improper arguments made by the prosecutor included:
(1) describing the victim’s testimony by speaking in the first person; (2) arguing that Hieb told the
victim that the abuse was her fault; (3) claiming that Hieb’s counsel asked the jury to blame the
victim; (4) implying that the victim suffered from a torn hymen; (5) arguing the jury should
consider what the victim endured; (6) misstating the burden of proof when she compared
reasonable doubt to a jury having confidence in its decision; (7) vouching for the victim’s
credibility; and (8) arguing that the justice due Hieb was also due to the victim. Hieb claims that
the cumulative effect of these asserted improper arguments violated his right to a fair trial.
No. 51874-1-II
We agree that the first four arguments were improper. We assume without deciding that
the next two arguments were improper but conclude that the trial court’s instruction cured any
prejudice. We conclude that the last two arguments were not improper. Our ultimate holding is
that none of the arguments standing alone are sufficiently prejudicial to warrant reversal and Hieb
fails to show that the cumulative effect of the errors denied him a fair trial. Thus, we affirm the
convictions.
FACTS
I. BACKGROUND
The State charged Hieb with one count of first degree rape of a child (count I) and three
counts of first degree child molestation (counts II-IV). The State filed an amended information
adding one count of second degree child molestation (count V), one count of first degree child
molestation (count VI) and amending count III to include the alternative means of first degree
attempted rape of a child.
At trial, the State’s case was based on the testimony of the victim. Defense counsel argued
that there was reasonable doubt because there was evidence that impeached the victim’s testimony,
there was no corroborating evidence, and the State failed to adequately investigate the allegations.
II. THE VICTIM’S TESTIMONY
The victim testified at trial that she knew Hieb her entire life because he was her mother’s
childhood friend and lived up the road from their house. The victim saw Hieb five days a week.
She would often go to his house for dinner when she was younger. Hieb worked in landscaping
and helped the victim’s mother with the house.
2
No. 51874-1-II
The victim testified that Hieb sexually abused her repeatedly when she was in elementary
school. She gave extremely detailed accounts of each incident.
The victim testified that she never reported the abuse because Hieb told her not to and she
thought it was her fault. On October 9, 2016, the victim’s mother was informed of an incident
involving allegations of improper conduct by Hieb with the victim’s young niece. The victim’s
mother asked her if Hieb had ever touched her after learning what had happened to her niece. The
victim told her mother that Hieb had been sexually touching her for her entire life. Shortly
thereafter, she and her mother called the police. An officer came to their house and the victim
spoke with a child forensic interviewer.
III. JURY INSTRUCTIONS
During trial, the State proposed the standard Washington Pattern Jury Instruction, 4.01,
regarding reasonable doubt which includes the “abiding belief” language. Hieb proposed a jury
instruction explicitly omitting the “abiding belief” language.
The trial court accepted Hieb’s proposed instruction omitting the “abiding belief” to which
the State took exception. The State argued, “My understanding is that the court is not allowing
the State to use the words ‘abiding belief,’ which I would argue to the court that ‘abiding belief’
is an accurate statement of the law. The State should be allowed to argue that even if the court is
going to give the defense[’s] proposed instruction of ‘beyond a reasonable doubt.’” Report of
Proceedings (RP) at 976. To which the court responded, “Well, if I was going to give ‘abiding
belief,’ then it would be perfectly fine to argue that. Since I’m not, you can’t. You have to argue
the law based on the instructions of the court.” RP at 976.
3
No. 51874-1-II
The court’s instruction on reasonable doubt stated,
A reasonable doubt is one for which a reason exists and may arise from the
evidence or lack of evidence. It is such a doubt as would exist in the mind of a
reasonable person after fully, fairly, and carefully considering all of the evidence
or lack of evidence.
Clerk’s Papers (CP) at 46.
IV. CLOSING ARGUMENTS
A. SPEAKING IN THE FIRST PERSON TO DESCRIBE THE VICTIM’S TESTIMONY
The prosecutor began closing arguments as follows:
[STATE]: Thank you, Your Honor. “When it happened, I didn’t understand what
he was doing to me. I didn’t understand the gravity --”
[DEFENSE COUNSEL]: Objection, Your Honor. At this time, counsel is speaking
in the first person. She is playing to the prejudice and passions of the jury. This is
inappropriate.
THE COURT: Overruled. You may proceed.
[STATE]: Thank you. “I didn’t understand the gravity of what was happening to
me. I trusted him. I didn’t want to make my mom mad. I thought it was my fault.”
[DEFENSE COUNSEL]: Objection.
THE COURT: Objection is overruled.
[STATE]: “He stopped when I told him to stop. He never touched me again.” [The
victim] testified and told you that she held on to what the defendant had done to
her, kept it to herself for over eight years of sexual abuse.
RP at 995-96.
B. ARGUMENT THAT HIEB TOLD THE VICTIM THE ABUSE WAS HER FAULT
The prosecutor argued the following:
[STATE]: Defense counsel make[s] the comments about the shortcomings of the
law enforcement investigation. I submit to you that those shortcomings don’t
4
No. 51874-1-II
change what happened to [the victim]. [The victim] has been blamed for the
defendant’s actions by him telling her that it is her fault. She is the one in trouble.
[DEFENSE COUNSEL]: Objection, Your Honor. There is no testimony to support
that. Assumes facts not in evidence.
THE COURT: The jury will determine what the facts are. They have been advised
previously that the lawyer’s remarks, statements, and arguments are not evidence.
They determine what the evidence was.
RP at 1086 (emphasis added).
C. DEFENSE COUNSEL ASKED THE JURY TO BLAME THE VICTIM
The prosecutor’s above quoted argument implied that defense counsel was advocating for
the jury to blame the victim.
D. IMPLYING THAT THE VICTIM SUFFERED FROM A TORN HYMEN
In his closing argument, defense counsel argued that there was insufficient evidence
because law enforcement failed to conduct additional investigation. The prosecutor argued on
rebuttal that there could always be more evidence, but that here, there was enough evidence to
convict.
The prosecutor argued the following:
[STATE]: We have to prove it beyond a reasonable doubt, and we can do that if
our witness is credible and you find her credible and you find that she has testified
to the elements in this packet and that we have proven it beyond a reasonable doubt.
That is how we do it. There is nothing that says we need to corroborate.
I would submit to you, as we’ve discussed earlier, these are crimes of
secrecy. You are not going to have corroborating | {
"pile_set_name": "FreeLaw"
} |
78 F.3d 577
NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases.UNITED STATES, Appellee,v.Hilario MATEO-SALAS, Defendant, Appellant.
No. 95-2128.
United States Court of Appeals, First Circuit.
March 6, 1996.
Julio Fontanet Maldonado on brief for appellant.
Guillermo Gil, United States Attorney, Miguel A. Pereira, Assistant U.S. Attorney, and Jose A. Quiles Espinosa, Senior Litigation Counsel, on brief for appellee.
Before TORRUELLA, Chief Judge, CYR and STAHL, Circuit Judges.
PER CURIAM.
1
The judgment is summarily affirmed. Loc. R. 27.1.
2
1. As defendant acknowledges, the court was not bound by the version of facts attached to the plea agreement, U.S.S.G. § 6B1.4(d), or the plea agreement itself. Consequently, the court was free to consider an adjustment under § 2D1.1(b)(1). As defendant has neither argued that such an adjustment was unsupported by the evidence nor furnished a transcript of the evidentiary hearing, we do not consider the matter further.
3
2. Having failed to show that he ever requested a downward departure, defendant may not now premise error on the court's failure to depart. United States v. Field, 39 F.3d 15, 21 (1st Cir.1994), cert. denied, 115 S.Ct. 1806 (1995).
4
Affirmed.
| {
"pile_set_name": "FreeLaw"
} |
COURT
OF APPEALS
SECOND
DISTRICT OF TEXAS
FORT
WORTH
NO.
2-04-106-CV
GROVER C. GIBSON APPELLANT
V.
LEHOMA JOYCE GIBSON APPELLEE
------------
FROM
THE 322ND DISTRICT COURT OF TARRANT COUNTY
------------
OPINION
------------
This is an appeal from the
trial court=s property
division in a divorce proceeding. In two
points, appellant Grover C. Gibson contends that the trial court erroneously
awarded appellee Lehoma Joyce Gibson property owned by a limited partnership in
which appellant held a community property partnership interest and that the
trial court denied him due course of law by delaying the final division of the
marital estate until two years and eight months after trial. Because we
conclude that the trial court=s award of the partnership property to appellee constituted reversible
error, we reverse and remand in part and affirm in part.
In his first point, appellant
contends that the trial court abused its discretion by awarding appellee
property owned by GCG Partners, L.P., a limited partnership that appellant and
his son Glen formed for investment purposes.
The evidence at trial showed that appellant owned a fifty-percent
community property interest in the limited partnership[1]
and Glen owned the other fifty-percent interest. The partnership=s assets consisted mainly of real property worth approximately
$373,000 and $15,000 in cash and securities. In its final decree, the trial
court awarded the following to appellee:
With
respect to the limited partnerships [sic] known as GCG Partners, L.L.P. [sic],
[appellee] is awarded all of the community interest including the
partnership interest in the real estate located at 5900 Lovell, Fort Worth,
Texas, including but not limited to the note payable dated December 20, 1993,
in the amount of $160,000.00 payable to [appellant] to the parties from GCG,
all furniture, fixtures, machinery, equipment, inventory, cash, receivables,
accounts, goods, and supplies; all personal property used in connection with
the operation of the business; and all rights and privileges, past, present, or
future, arising out of or in connection with the operation of GCG
Partners. [Emphasis supplied.]
Thus, the trial court=s order purported to award appellee not only appellant=s community property partnership interest in GCG Partners, but also an
interest in specific partnership property.
The trial court also ordered appellant to vacate the building at 5900
Lovell on or before January 9, 2004.
The limited partnership
agreement of GCG Partners provides that A[a]ll property owned by the [p]artnership . . . shall be deemed to be
owned by the [p]artnership as an entity; and no [p]artner, individually, shall
have ownership of such property.@ In addition, the Texas Revised
Limited Partnership Act (TRLPA) provides that a partner has no interest in
specific limited partnership property.[2]
Under both the limited partnership agreement and TRLPA, the community interest
in GCG Partners was personal property.[3]
A trial court may not award
specific partnership assets to a nonpartner spouse.[4] Only a partner=s partnership interestCthe right to receive a share of the profits and surpluses from the
partnershipCis subject
to division in a divorce proceeding.[5] Accordingly, the trial court abused its
discretion by awarding GCG=s partnership property to appellee.
An error of law that causes
the rendition of an improper judgment is reversible error.[6] Divesting a partnership that is not a party
to a divorce proceeding of partnership property and awarding that property to a
nonpartner spouse is reversible error.[7]
Because the trial court
committed reversible error when it purported to award GCG=s partnership property to appellee, we must reverse the trial court=s judgment as to the property division and remand the case to the
trial court to redivide the parties= community estate.[8] We affirm the portion of the judgment
granting the parties a divorce.
JOHN CAYCE
CHIEF JUSTICE
PANEL A: CAYCE, C.J.; HOLMAN and GARDNER, JJ.
DELIVERED: March 30, 2006
[1]Appellant=s
interest consisted of a one-percent interest as a general partner and a
forty-nine percent interest as a limited partner.
[2]Tex. Rev. Civ. Stat. Ann. art.
6132a-1, ' 7.01
(Vernon Supp. 2005).
[3]Id.
[4]See Lifshutz
v. Lifshutz, 61 S.W.3d 511, 518 (Tex. App.CSan
Antonio 2001, pet. denied).
[5]Young
v. Young, 168 S.W.3d 276, 287 (Tex. App.CDallas
2005, no pet.).
[6]See Tex. R. App. P. 44.1(a).
[7]See
Siefkas v. Siefkas, 902 S.W.2d 72, 79-80 (Tex. App.CEl
Paso 1995, no writ) (holding that trial court reversibly erred by dividing
property that may have been owned by appellant=s
professional corporation, which was a separate legal entity and not a party to
the proceedings); cf. Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 142 (Tex.
1977) (holding that divesting a spouse of separate property is reversible
error); Smith v. Smith, 22 S.W.3d 140, 147 (Tex. App.CHouston
[14th Dist.] 2000, no pet.) (same). On
rehearing, appellant argues for the first time that the trial court=s
erroneous order awarding the partnership property to appellee is void. Appellant cites no legal authority for this
argument. See Tex. R. App. P. 38.1(h) (requiring
appellate arguments to be supported by legal authority). A trial court=s
judgment is void only when the court rendering the judgment had no jurisdiction
over the parties, no jurisdiction over the subject matter, no jurisdiction to
render the judgment, or no capacity to act as a court. Mapco, Inc. v. Forrest, 795 S.W.2d
700, 703 (Tex. 1990). A judgment based on an erroneous holding of substantive
law, including the award of partnership property to a nonpartner spouse in a
divorce proceeding, merely renders the judgment voidable, not void. Reiss v. Reiss, 118 S.W.3d 439, 443
(Tex. 2003).
[8]In
light of our holding, we need not consider appellant=s
second point, in which he complains that the trial court denied him due process
of law by delaying the final division of the community estate for two years and
eight months after trial. See Tex. R. App. P. 47.1.
| {
"pile_set_name": "FreeLaw"
} |
930 F.Supp. 83 (1996)
Catherine EVANS, Parent of a disabled child, F.Z., Plaintiff,
v.
The BOARD OF EDUCATION OF THE RHINEBECK CENTRAL SCHOOL DISTRICT, Defendant.
No. 95 CV 10102 (BDP).
United States District Court, S.D. New York.
June 10, 1996.
*84 *85 Rosa Lee Charpentier, Family Advocates Inc., New Paltz, NY, for Plaintiff.
Garret L. Silveira, Shaw & Silveira, Highland, NY, for Defendants.
MEMORANDUM DECISION AND ORDER
PARKER, District Judge.
BACKGROUND
Plaintiff Catherine Evans commenced this action on behalf of her son, Frank, seeking declaratory and injunctive relief and alleging that defendant Rhinebeck Central School District Board of Education ("the District") violated the Individuals with Disabilities Education Act ("IDEA" or "the Act"), 20 U.S.C. § 1400 et seq., and her civil rights under 42 U.S.C. § 1983, by failing to provide Frank with a "free appropriate public education" as *86 required under the Act. On January 29, 1996, the parties appeared before this Court on Evans' motion for a temporary restraining order and preliminary injunction enjoining the District to maintain Frank at his current educational placement, the Kildonan School, pending further proceedings.
This Court denied Evans' application for a TRO based on the evidence before it at that time, and ordered the trial on the merits to be advanced and consolidated with the hearing of the application for a preliminary injunction. See Fed.R.Civ.P. 65(a)(2). A hearing on the preliminary injunction application and on the merits was conducted on April 12, 1996. In a decision, dated April 15, 1996, and amended May 6, 1996, the Court granted Evans' motion for a preliminary injunction, enjoining the District to maintain Frank at Kildonan, pending the Court's decision on the merits. This Memorandum Decision and Order constitutes the Court's findings of fact and conclusions of law on the merits.
Evans claims various procedural errors by the District in developing Frank's 1994-95 Individual Educational Program ("IEP") and also claims that Frank's 1994-95 IEP did not meet the substantive requirement that it be reasonably calculated to confer educational benefit. The hearing officer found in favor of the District, and the State Review Officer dismissed Evans' appeal. Although the Supreme Court has held that reviewing courts should be cautious in cases questioning the efficacy of a state educational program, see Hendrick Hudson Board of Educ. v. Rowley, 458 U.S. 176, 206, 102 S.Ct. 3034, 3050-51, 73 L.Ed.2d 690 (1982), a thorough review of the record here has convinced the Court that the findings and conclusion of the state administrative officers simply do not merit deference. Because this review has indicated that the findings and conclusions of the state administrative officers are largely unsupported, I begin by proceeding through the evidence in some detail.
FACTS
Frank is a fifteen year old boy of above average intelligence. He suffers from dyslexia, a severe learning disability that hinders his ability to decipher written symbols. Dyslexia has a neurological basis, and although there is no cure, a dyslexic child can learn methods to decipher words. Although Frank was not diagnosed with dyslexia until the summer of 1994, Evans testified that, from the time he entered school, Frank has had problems with spelling, reading and writing. She also testified that he has always experienced anxiety, sometimes accompanied by physical symptoms, in connection with tests.
In 1993, Evans enrolled Frank in the District's Buckeley Middle School, where he was placed in a regular education seventh grade class for the 1993-94 school year. Concerned with his difficulty in reading and spelling, Evans referred Frank to the District's Committee on Special Education ("CSE") in November of 1993. He was psychologically and educationally evaluated in December of that year.
The school psychologist, Donna Smith, reported that testing showed that Frank had a high IQ. She found that his verbal ability was superior, and that his ability to acquire information through auditory and oral modes was significantly greater than that of his peers. She noted, however, that Frank slowed down while performing visual motor tasks to assure his accuracy. She also found that writing and copying symbols were his weaknesses, but that his writing ability nevertheless appeared to be at age level.
In addition, Smith's projective testing revealed that Frank had a negative perception of his abilities in school, physical appearance, and popularity with peers, that he had "needs for security," that "[h]e feels that despite the times he works hard he `does bad' and he `can't get it all right,'" and that he "experiences himself as perceived as `different' by his peers." She recommended that the CSE consider alternate ways of helping Frank obtain information in the classroom, such as having him obtain copies of class notes and teaching him alternative ways of recording information, that he receive remedial help in spelling and a spell-checker, and that his progress be monitored.
Interviewed by Smith in November 1993, Evans reported that Frank's self-image was "poor right now due to negative experience in school," that he experienced "mood swings *87 and frustration in regard to school," that he was frustrated with his writing, spelling and reading problem, that "he feels that he is stupid."
Using the Woodcock Johnson Achievement Test, the school special education teacher, Roberta Bloomer, performed an educational evaluation. Frank received the following grade equivalent scores:
5.8 in letter-word recognition, and
8.3 in passage comprehension, resulting
in
6.5 for broad reading;
8.9 in mathematical calculation, and
10.1 in applied problems, resulting in
9.4 in mathematics;
3.1 in dictation (spelling), and
8.9 in writing samples, resulting in
4.3 for written language.
Because of Frank's weaknesses in reading and spelling, Bloomer also gave him the Boder Test of Reading and Spelling, in which Frank reportedly identified words at the 6th and 7th grade level and read on the fifth to sixth grade level, but spelled correctly only 20% of the words given to him. Bloomer noted that Frank spelled phonetically, but did not use non-phonetic spelling patterns.
The CSE met on December 10, and considered Frank's psychological and educational evaluations, but, despite what Patricia Zeisler, the chair of the CSE and principal of Buckeley, identified as "a discrepancy between ... the verbal and performance subtest scores, which often [is] associated with a learning disability," it did not classify him as a child with a disability. The CSE notified Evans that it declined to classify Frank because testing results did not indicate the presence of a learning disorder at that time. Instead, Frank received remedial instruction in reading and spelling by Bloomer, and counseling by Smith. Bloomer worked with Frank in the classroom as an inclusion teacher, helped him organize his notebook, and monitored his homework and performance in class. Bloomer also provided individual instruction to him during study periods four times a week plus one or two other 40-minute periods each week, and used glass analysis, an alternative method of word decoding with him. She also worked with him to improve his writing and spelling by using a computer. At Evans' request, counseling was discontinued shortly after it had begun because Frank evidently did not feel comfortable with Smith.
On March 22, 1994, the CSE reconvened. Bloomer reported that Frank required more assistance to be successful in the classroom. She told the CSE that he needed help with notetaking, and developing his study and organizational skills, in addition to assistance in improving his reading, spelling and writing skills. Although no additional tests were conducted, the CSE relied upon Bloomer's oral report to recommend that Frank be classified as learning disabled. There was no written report of the basis of that determination. Zeisler testified that the CSE decided to use Frank's spelling deficit as the basis for the classification. His spelling score on the Woodcock Johnson was not reflected in his IEP, however.
The CSE further recommended that Frank receive consultant teacher services twice a day with Bloomer, and be permitted to use testing modifications, such as extended time limits, taking tests in alternate locations and giving oral responses to test questions. Frank's IEP included annual goals to improve keyboarding, writing and study skills.
According to Bloomer, Frank's testing was modified in all subject areas. He was given multiple choice questions, with short answers. Often Bloomer would read the tests to him so that he could dictate answers. Where longer writing was required, he was permitted to write in phrases, and she would later work with him to produce full sentences. Frank's homework assignments were also modified so that they were shorter. In addition, although it was not reflected in the IEP, Bloomer provided individual instruction for 40-minute periods approximately eight times per week. She worked with Frank in all subject areas, but primarily in writing. Despite these additional services and testing modifications, Frank's performance declined between March and the end of the school year.
Frank failed every major academic subject that year. He received a grade of "Unsatisfactory" in language arts, social studies, science *88 and mathematics. Teacher comments on his report card indicate that he had difficulty following classroom procedures, had not completed assignments and was absent a lot. Bloomer testified that Frank did not achieve any of the goals included in the March IEP.
In May, increasingly concerned about Frank's academic difficulties | {
"pile_set_name": "FreeLaw"
} |
893 F.2d 1502
58 USLW 2446
UNITED STATES of America, Plaintiff-Appellee,v.William M. CARROLL, Defendant-Appellant.
No. 88-2260.
United States Court of Appeals,Sixth Circuit.
Argued July 31, 1989.Decided Jan. 9, 1990.
David Debold, argued, Office of the U.S. Atty., Detroit, Mich., for plaintiff-appellee.
Jill L. Price, argued, Federal Public Defenders Office, Detroit, Mich., for defendant-appellant.
Before KRUPANSKY and RYAN, Circuit Judges, and WILHOIT, District Judge.*
RYAN, Circuit Judge.
1
This sentence guidelines appeal presents a meritorious assignment of error.
2
Because we conclude that the sentencing court erred as a matter of law in selecting the numerical value corresponding to the defendant's "role" in the offense in this case, and as a result necessarily came to a mistaken mathematical conclusion about the appropriate sentence guidelines range, we vacate the sentence and remand the case for resentencing.
I.
3
Before turning to the four meritless and one meritorious issues in this appeal, we should like to say a word, in dicta to be sure, about the ever increasing volume of sentence guidelines appeals being filed in this circuit, and presumably in others.
4
This is one in an ever increasing number of such appeals in which the principal thrust of the appeal is to attempt to persuade this court to second guess the sentencing judge's findings about the nature of the defendant's role in the offense, or his attitude about his guilt, or his criminal justice history; and sometimes, as in this case, all three.
5
This appeal is unusual in that it presents a meritorious assignment of error. In most of these appeals the sentenced offender is the appellant and his sole appellate purpose is obvious: to obtain a more lenient sentence than was imposed by the district court. When the government is the appellant, as it is with increasing frequency, its purpose, ordinarily, is to obtain a more severe sentence.
6
The usual request in these appeals is that we substitute our own findings of fact for those of the sentencing court and then recompute the "correct" sentence guideline range by introducing into the convoluted arithmetical sentencing guidelines formula different numerical values for the defendant's role in the offense, his attitude, and his criminal history than the sentencing court, and usually the probation department, thought to be appropriate. To characterize this use of the resources of the United States Court of Appeals as imprudent is a very considerable understatement.
7
As the burgeoning volume of these sentence guidelines appeals begins to bloat the dockets of all the courts of appeals, we are necessarily spending more and more time doing nothing more than responding to appellants' pleas that we disagree with the factual determinations of sentencing judges and correct their mathematical computations. In the vast majority of these cases, although not this particular one, after careful and exhaustive examination of the sentencing court's findings of facts and its arithmetical computations, our appellate scrutiny results in a conclusion, even where some minor mathematical mistake is identified, that the correct sentence range is exactly as determined by the sentencing court. Part of the price that is paid for this kind of appellate drill is the unwarranted consumption of considerable time and energy that should be devoted to study, research, decision making, and opinion writing in an accumulating backlog of cases involving hundreds of jurisprudentially significant questions of state, federal, and constitutional law--functions for which the United States court of appeals was created.
8
It is not too late for Congress to reconsider whether the time and resources the courts of appeals are devoting to reviewing these sentence guideline cases, particularly in view of the essentially clerical nature of the current review function, can be better spent without sacrificing a sentenced defendant's entitlement to appropriate appellate review of the sentence imposed.
9
Meanwhile, we shall continue to undertake, as we have in this case, a detailed analysis of the correct application of the guidelines to the facts of individual cases in the hope that doing so will contribute to an early accumulation of a body of appellate precedent on the subject, looking to the day when most district court findings of fact and arithmetical computations in sentence guideline cases can be double checked without the full blown court of appeals briefing, oral argument, and opinion writing that should be reserved for jurisprudentially weightier matters.
II.
10
Appellant William M. Carroll attempted to escape from a federal correctional institute, pleaded guilty to doing so, was convicted and sentenced, and now appeals the district court's interpretation of the sentencing guidelines and the measure of proof by which the court required the government to prove the facts relied upon to compute the correct sentencing guidelines range.
11
Appellant argues that the district court erred in the following matters:
12
--Not requiring the government to prove by clear and convincing evidence the facts upon which it urged the district court to rely in determining the correct sentencing guidelines' values.
13
--Increasing appellant's base offense level by two levels for being an "organizer or leader."
14
--Increasing appellant's criminal history score by two points for committing an offense while under a criminal justice sentence.
15
--Increasing appellant's criminal history by two points for committing an offense within two years after release from custody.
16
--Denying appellant a two level reduction for acceptance of responsibility.
17
We agree with appellant that, as a matter of law, his base offense level could not be increased by two points on the theory that he was an organizer or leader under the "role in the offense" guideline. The remaining assignments of error are without merit, but because of the "role in the offense" miscalculation, the sentence is vacated and the matter is remanded to the district court for resentencing.
III.
18
Carroll was serving a fifteen-year sentence for manufacturing counterfeit currency when, in February 1988, he asked another inmate whether the inmate knew anyone on the outside who could help Carroll escape from the Federal Correctional Institute in Milan, Michigan. The inmate promptly alerted prison authorities who instructed the inmate to put Carroll in touch with an undercover FBI agent outside the prison who would pose as a helicopter pilot for hire.
19
Carroll telephoned the agent six times. He also wrote several letters in which he detailed his escape plans in "invisible ink" (lemon juice). Carroll planned to pay the agent and his helpers with $1,000,000 in counterfeit currency that he would then launder by purchasing cocaine from "a couple of Venezuelan brothers." Carroll offered the agent an extra $250,000 if he could recruit one more assistant and indicated a willingness to pay an additional one million counterfeit dollars for the life of the "bastard who got me this 15 years." In a later letter to the agent, Carroll identified that person, but told the agent to wait about six months so that the two could review details and defuse suspicion.
20
Carroll admitted that at the time scheduled for the escape, he was waiting for the helicopter in the designated place, was wearing predetermined clothing, and was signaling the pilot where to land.
21
Carroll was charged in a complaint with attempted escape, 18 U.S.C. Sec. 751, and solicitation to commit murder, 18 U.S.C. Sec. 13, relying, pursuant to the Assimilative Crimes Act, on Mich.Comp.Laws Sec. 750.157b (1989). He pleaded guilty and was scheduled for sentencing on December 14, 1988. As required by local court rule, appellant filed written objections to the calculation of his sentencing guidelines and renewed those objections orally at the time of his sentence. He makes the same arguments on appeal that he made below.
22
At sentencing, Carroll did not dispute the initial determination that Guideline Sec. 2P1.1(a) assigns a base level of thirteen to his offense; nor did he seriously dispute the court's finding that he initiated and planned the escape attempt. Rather, Carroll objected to the government's argument that he deserved a two point base level increase, pursuant to Sec. 3B1.1(c), due to his "aggravating role" in the escape attempt. Carroll maintained that because he was the only criminally responsible person alleged to have been involved in the offense, he could not rationally be treated as an "organizer or manager" within the language and intent of the applicable guideline--regardless of whether he planned the escape--because the escape involved no other "participants" as defined in the guidelines. Carroll asserted that in this case he only organized himself and the guideline does not permit enhancement in such a situation.
23
Carroll also objected to the government's request to add two points to his criminal history score for having committed an offense while under a criminal justice sentence, and one point for commission of an offense within two years after release from custody. He argued that because a defendant cannot commit the offense of escape unless he is under a criminal justice sentence, the two point addition to the criminal history score mandated by Sec. 4A1.1(d) is inappropriate in escape cases. Carroll further argued that the commission of his offense prior to his release from custody renders Sec. 4A1.1(e) inapplicable.
24
Finally, Carroll argued that he was entitled to the two level "acceptance of responsibility" reduction.
25
The sentencing court accepted the government's position on every guideline | {
"pile_set_name": "FreeLaw"
} |
190 So.2d 42 (1966)
Henry GREEN, Jr., Appellant,
v.
STATE of Florida, Appellee.
No. 6828.
District Court of Appeal of Florida. Second District.
September 7, 1966.
*43 Robert E. Jagger, Public Defender, and Robert E. Pyle, Asst. Public Defender, Clearwater, for appellant.
Earl Faircloth, Atty. Gen., Tallahassee, and William D. Roth, Asst. Atty. Gen., Lakeland, for appellee.
PIERCE, Judge.
This is an appeal by Henry Green, Jr., from a judgment of conviction entered against him upon a jury verdict finding him guilty under an information filed in the Pinellas County Circuit Court charging him with robbery at gun point of one Hiram Sharp.
From the judgment and sentence imposed defendant Green assigns numerous errors, only one of which deserves serious consideration, namely, the propriety of allowing the testimony of a State witness, Allie Mae Smith, to go to the jury over objection of defendant.
The robbery occurred on November 13th, 1964, at about 7 o'clock P.M. at the Seven-Eleven Food Store, located on 78th Avenue in St. Petersburg. The Assistant Manager of the store, Hiram C. Sharp, Jr., was sweeping up in the aisle of the store with his back to the front entrance, when two colored men came in, walked up behind him, and asked him if he had any beer. Sharp straightened up and indicated where the beverage could be found in the store, at which time one of the colored men stuck a gun in his back and said "this is a stick-up, I don't want any trouble, I will blow your head off". Sharp then proceeded to turn over the contents of the cash register and a small safe on the floor to the men, amounting to a little over $214.00. The men thereupon turned around and walked out of the store side by side and disappeared. At the time they entered no one else was inside the store except Sharp, but while they were inside and before they left a customer, James S. Wegner, entered and after walking around the store noticed Henry Green standing at the end of the counter looking out in front of the store. He then noticed the other negro standing at the cash register with Mr. Sharp. Immediately afterward, when he went to pay *44 his bill, Wegner saw the cash registers were open and then ascertained, in conversation with Sharp, that the robbery had just occurred. The two negroes had just left the store. Wegner positively identified the defendant Henry Green as being the negro who had been watching out the front door.[1]
Allie Mae Smith, a 16 year old girl, who had known Henry Green for about five years, went to see Green at the County Jail while he was awaiting trial, and had a short conversation with him. Her occupancy of the witness stand was punctuated by repeated objections and arguments between counsel and continual haranguing and colloquys between counsel and the Court, all of which tended to incredibly slow up the pace of the trial, and has rendered difficult a coherent reading of what actually took place. She was brought on as a witness to narrate the substance of her conversation with Green at the jail, and ostensibly to quote statements from Green that would implicate him in the Seven-Eleven robbery upon which he was on trial.
But after all the clashes and acrimony of counsel and indulgences of the Court that marked her tenure as a witness, and the fragmentary shambles of her testimony could be analyzed, all that had been accomplished was to infect an otherwise orderly criminal prosecution with fatal error. The substance of her testimony, as gleaned from the morass of extra-testimonial bickerings attendant upon the proceedings, was that she had read a newspaper article in the Clearwater Sun "about Henry Green * * * about money being stolen * * * from the Seven-Eleven".
The following excerpts from the record refer to the conversation:
"Q Who was present when you were talking to Henry?
A No one.
Q Just the two of you?
A Yes.
Q All right, what did you say to him and what did he say to you?
A Well, I asked him where did he go. He said he went to Miami or Georgia, one of them. And I asked him how did he get there. He said with Leroy in the white Oldsmobile. And I told him people out where I live was accusing me of being with them when that happened.
Q When what happened?
A When he was being accused of money being stolen.
Q All right, what did he say?
A He said that he was going to punish them, or something like that. Made some kind of remark.
Q All right, go ahead. What else did you talk about? Did you ask him anything about the money?
* * * * * *
A That's all I know."
The newspaper article in question was never introduced or offered in evidence, it was not otherwise identified, and the contents of the article were not otherwise disclosed except as aforesaid. Allie Mae did not have the article with her when she was at the jail or at the trial, although she had been interrogated by the prosecutors just prior to trial. It is obvious from her testimony that both the news article itself and her conversation with Green at the jail related to a robbery of a Seven-Eleven Store with money being taken. It is equally obvious, however, that the robbery was never identified as this particular robbery for which Green was on trial. The trial Judge, after such testimony was already in, apparently decided to strike Allie Mae's testimony, observing that
*45 "* * * after having thought about this particular case that is before me I would have to strike all the testimony of Allie Mae Smith, because it is my opinion that I should strike it and so inform the jury. * * * It is my opinion, though, that it would be actually harmful error with the mistake that I had made,[1a] and it is my further opinion that Allie Mae Smith's testimony when I think about it, most of it is immaterial. In fact, in my opinion all of it is immaterial, and it is almost impossible to pick out what is not and what is material. In fact it is my opinion that most of it is immaterial. Therefore I would grant the motion for a directed verdict at this time based on the case as it now appears."
However, during the ensuing wrangling of counsel, with the Court participating therein, the Judge apparently changed his mind and, after letting the prosecutor put Allie Mae back on the witness stand but adducing nothing additional from her of any consequence, denied successive motions to strike the various portions of her testimony. The case then went to the jury, resulting in the verdict of guilty as aforesaid.
For decades in Florida in fact since 1886[2] convictions have been reversed because of admission of evidence of other offenses wholly independent of the case being tried. Such evidence must be excluded if it has no direct bearing in proof of the instant case and where the only probative value is to prove or tend to prove a wholly extraneous offense. Hooper v. State, Fla.App. 1959, 115 So.2d 769; Hartman v. State, 1936, 121 Fla. 627, 164 So. 354; Rhodes v. State, 1932, 104 Fla. 520, 140 So. 309; West v. State, 1939, 140 Fla. 421, 191 So. 771; Adams v. State, 1943, 153 Fla. 68, 13 So.2d 610. And this is true even though the offenses are similar or of like nature. Denton v. State, 1913, 66 Fla. 87, 62 So. 914; Suarez v. State, 95 Fla. 42, 115 So. 519; Boyett v. State, 1928, 95 Fla. 597, 116 So. 476; Varnum v. State, 1939, 137 Fla. 438, 188 So. 346; Padgett v. State, Fla. 1951, 53 So.2d 106; Fastow v. State, Fla. 1951, 54 So.2d 110; Smith v. State, Fla. 1951, 54 So.2d 37. Likewise, any evidence that has no more attributes of admissibility than to merely suggest, or tend to suggest, commission of an independent crime, goes out. Wilson v. State, Fla.App. 1965, 171 So.2d 903; Andrews v. State, Fla.App. 1965, 172 So.2d 505.
In 1959 the Supreme Court, in Williams v. State, Fla. 1959, 110 So.2d 654, in a well-publicized opinion by Chief Justice Thornal, presumed to put a "new look" on such extraneous-offenses evidence, or at least to chart a new "legal approach" to such evidence. Up until Williams the inadmissibility of such evidence had been intermittently referred to in the cases as "the general rule", while the instances of admissibility had been variously described as "the exceptions". The Williams case took the old package out of tinfoil and wrapped it up in neat, modern cellophane by announcing that the admission of such evidence would be thenceforth "the general rule" and the non-admission would be "the exception". Thus, by a sort of reverse English the rule of relevancy has now supplanted the rule of exclusion. And it is to the credit of our Supreme Court that this new approach was announced. Because it is as it should be. Admissibility should always be favored if legally permissible. | {
"pile_set_name": "FreeLaw"
} |
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 10-1901
___________
Chrystal Gray, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Arkansas.
Arkansas Department of Human *
Services, (DHS); John Selig, * [UNPUBLISHED]
Director, DHS; Toni Bogan, *
Manager, Appeals and Hearings, *
Office of Chief Counsel, DHS; *
Sherry Middleton, Director, *
Division of Volunteerism, DHS, *
*
Appellees. *
___________
Submitted: November 2, 2010
Filed: December 16, 2010
___________
Before WOLLMAN, MELLOY, and GRUENDER, Circuit Judges.
___________
PER CURIAM.
Chrystal Gray appeals from the district court’s1 dismissal of her employment-
discrimination retaliation claims brought under 42 U.S.C. §§ 1981, 1983. Upon
1
The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas.
careful de novo review, see Schaaf v. Residential Funding Corp., 517 F.3d 544, 549
(8th Cir. 2008) (district court’s grant of motion to dismiss reviewed de novo), we
agree with the district court that Gray could not bring an action against defendants
under section 1981, see Artis v. Francis Howell N. Band Booster Ass’n, Inc., 161 F.3d
1178, 1181 (8th Cir. 1998) (federal action to enforce rights under § 1981 against state
actor must be brought under § 1983). We further agree that, because Gray’s
complaint was silent as to the capacity in which she was suing defendants, her
complaint was properly construed as asserting only official-capacity claims, see Baker
v. Chisom, 501 F.3d 920, 923 (8th Cir. 2007) (if complaint is silent about capacity in
which defendant is sued, court interprets complaint as including only official-capacity
claims); and, as such, her section 1983 claims failed, see Morstad v. Dept. of Corr. &
Rehab., 147 F.3d 741, 743-44 (8th Cir. 1998) (Eleventh Amendment bars § 1983
action against state and its officials acting in their official capacities); Nix v. Norman,
879 F.2d 429, 432 (8th Cir. 1989) (suit brought solely against state or state agency is
generally proscribed by Eleventh Amendment).
Accordingly, we affirm, see 8th Cir. R. 47B, but we modify the dismissal to be
without prejudice to Gray refiling her action. We express no opinion on the timeliness
of such an action.
______________________________
-2-
| {
"pile_set_name": "FreeLaw"
} |
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-95-00526-CR
Ex Parte: Christopher Ryan Byrd, Appellant
FROM THE COUNTY COURT AT LAW NO. 2 OF HAYS COUNTY
NO. 43,685, HONORABLE LINDA A. RODRIGUEZ, JUDGE PRESIDING
Appeal is taken from the trial court's denial of habeas corpus relief. Appellant
contends that the trial court erred in holding that an administrative driver's license suspension is
not punishment so as to bar further prosecution for the same offense. (1) We will affirm.
It appears that the facts are undisputed. Appellant was arrested for the offense of
driving while intoxicated (DWI) on or about April 21, 1995, and refused to submit to a breath test
at the request of the arresting officer. Appellant was advised that his driving privileges would be
suspended pursuant to Texas law. See Art. 6701l-5, § 2(d) (now Transp. Code § 72.032). On
May 31, 1995, appellant was charged by information with the offense of DWI based on the April
21st incident. In a letter, dated June 8, 1995, the Texas Department of Public Safety notified
appellant that his driver's license would be suspended for ninety-days. (2) See Art. 6701l-5, § 2(i)
(now Transp. Code § 724.035).
The pertinent provision in the Double Jeopardy Clause protects an accused from
multiple punishment for the same offense. United States v. Halper, 490 U.S. 435, 440 (1989).
The issue before us is whether the forfeiture of appellant's driver's license for ninety days
constituted "punishment." This Court has recently held that suspension of a driver's license is
not punishment so as to bar prosecution for the same DWI offense. See Ex parte Arnold, No. 03-95-00520-CR, slip op. at 8 (Tex. App.--Austin February 7, 1996, no pet. h.). The United States
Supreme Court has addressed the issue of whether forfeitures constitute punishment so as to bar
prosecutions growing out of the same offenses in three opinions since 1989. See Montana Dept.
of Revenue v. Kurth Ranch, 128 L.Ed.2d 767 (1994); Austin v. United States, 509 U.S. , 125
L. Ed. 2d 488 (1993); Halper, 490 U.S. 435 (1989). We reviewed these opinions in Arnold and
will not elongate this opinion by revisiting them. In a different Arnold opinion cited by appellant
in his supplemental brief, a Houston Court of Appeals found the rationales used in opinions
addressing this issue are difficult to reconcile. See Arnold v. State, No. 01-95-00633-CR, slip op.
at 25 (Tex. App.--Houston [1st Dist.] January 18, 1996, no pet. h.). We agree. Appellant cites
us to language in the body of the Houston Arnold opinion that tends to support his position.
However, the court in that case held that the driver's license suspension did not bar prosecution
for DWI, relying on Halper's rationale that the Double Jeopardy Clause is applicable in the "rare"
case where the sanction imposed is "overwhelmingly disproportionate to the damages . . . caused"
and bears no rational relation to the goal of compensating the government for its loss. See id.,
slip. op. at 23 (citing Halper, 490 U.S. at 449).
In addition to Texas courts of appeals' opinions cited in our Arnold opinion denying
habeas relief from DWI prosecution following administrative suspension of driver's license based
on the same incident, Ex parte Helber, No. 01-95-00926-CR (Tex. App.--Houston [1st Dist.]
February 1, 1996, no pet. h.), has been handed down. In denying habeas relief, the Helber Court
noted that a nationwide survey of decisions showed that courts have almost uniformly held that
an administrative license suspension does not prohibit a later prosecution for DWI. Id., slip op.
at 9. We have reviewed two cases from the United States District Court for the Eastern District
of Virginia (Alexandria Division), cited by appellant, holding that driver's license suspension
statutes are, at least partially, punitive in nature and jeopardy attaches. See United States of
America v. Johnson, No. 95-76-M (E.D. Va. Sept. 1, 1995) (mem.); Murphy v. Commonwealth
of Virginia, et al., 89 F. Supp. 577 (E.D. Va. 1995). Our review of Murphy and Johnson fails
to persuade us that our opinion in Arnold is incorrect.
In our Arnold opinion, we found a bright line distinction between the cases where
the government attempted to forfeit property or raise revenue and those cases where the State
attempts to suspend a driver's license. Ex parte Arnold, No. 03-95-00520-CR, slip. op. at 5. The
Supreme Court noted in Austin that forfeiture has been historically understood as punishing the
owner of forfeited property. Austin, 125 L. Ed. at 503; see Ex parte Ariza, 913 S.W.2d 215, 220
(Tex. App.--Austin 1995, pet. filed). On the other hand, courts have traditionally held that a
license to drive an automobile is not property, but a privilege subject to reasonable regulations
in the interest of the welfare and safety of the public. Ex parte Arnold, No. 03-95-00520-CR, slip
op. at 5; Coyle v. State, 775 S.W.2d 843, 846 (Tex. App.--Dallas 1989, no pet.).
We adhere to our holding in Arnold that the holder of a driver's license possesses
a privilege rather than an interest in property and that its suspension serves the remedial purpose
of protecting public safety by quickly removing drivers from the road. Accordingly, we hold that
the suspension of appellant's driver's license in this case did not constitute punishment for the
same DWI offense under the Double Jeopardy Clause.
The trial court's denial of habeas corpus relief is affirmed.
Tom G. Davis, Justice
Before Justices Aboussie, Kidd and Davis*
Affirmed
Filed: April 17, 1996
Do Not Publish
* Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment.
See Tex. Gov't Code Ann. § 74.003(b) (West 1988).
1. Appellant's license was suspended pursuant to Act of May 29, 1993, 73d Leg., R.S.,
ch. 886, § 9, 1993 Tex. Gen. Laws 3515, 3523 (Tex. Rev. Civ. Stat. Ann. art. 6701-5, § 2,
since amended and codified at Tex. Transp. Code Ann. §§ 724.031 et seq. (West 1996)).
2. We note that the record reflects that the trial court granted appellant an occupational
driver's license on June 1, 1995.
age in the body of the Houston Arnold opinion that tends to support his position.
However, the court in that case held that the driver's license suspension did not bar prosecution
for DWI, relying on Halper's rationale that the Double Jeopardy Clause is applicable in the "rare"
case where the sanction imposed is "overwhelmingly disproportionate to the damages . . . caused"
and bears no rational relation to the goal of compensating the government for its loss. See id.,
slip. op. at 23 (citing Halper, 490 U.S. at 449).
In addition to Texas courts of appeals' opinions cited in our Arnold opinion denying
habeas relief from DWI prosecution following administrative suspension of driver's license based
on the same incident, Ex parte Helber, N | {
"pile_set_name": "FreeLaw"
} |
92 F.3d 1173
U.S.v.James A. Dye, Jr.
NO. 96-3128
United States Court of Appeals,Third Circuit.
July 15, 1996
Appeal From: W.D.Pa., No. 90-00035E,
Cohill, J.
1
AFFIRMED.
| {
"pile_set_name": "FreeLaw"
} |
Court of Appeals
of the State of Georgia
ATLANTA,____________________
January 16, 2020
The Court of Appeals hereby passes the following order:
A19A1755. WILLIE S. JENKINS, JR. v. WILLIE MUNFORD, ON BEHALF
OF NEW WILLOW GROVE BAPTIST CHURCH et al.
Plaintiffs Willie Munford, Ginneski Munford, and Tracey Cheevers, on behalf
of New Willow Grove Baptist Church filed a complaint for, inter alia, declaratory
judgment against Willie S. Jenkins, Jr., in this property dispute. The plaintiffs
thereafter amended their complaint to add a claim for quiet title, and the court
appointed a special master to conduct a title abstract. The plaintiffs then filed a
motion to bifurcate the action, and the matter proceeded to a bench trial only as to the
claims raised in the original complaint. Following the bench trial, the court entered
an order granting declaratory judgment to the plaintiffs, canceling Jenkins’s deed, and
awarding the plaintiffs attorney fees. Jenkins then filed this direct appeal. We lack
jurisdiction.
“In a case involving multiple parties or multiple claims, a decision adjudicating
fewer than all the claims or the rights and liabilities of less than all the parties is not
a final judgment.” Johnson v. Hosp. Corp. of Am., 192 Ga. App. 628, 629 (385 SE2d
731) (1989) (punctuation omitted). In such circumstances, there must be either an
express determination that there is no just reason for delay under OCGA § 9-11-54
(b) or compliance with the interlocutory appeal requirements of OCGA § 5-6-34 (b).
See id. “Where neither of these code sections [is] followed, the appeal is premature
and must be dismissed.” Id. (punctuation omitted).
The order on appeal resolved the declaratory judgment action and canceled
Jenkins’s deed. However, the order did not resolve the quiet title claim. See OCGA
§ 23-3-66 et seq. Further, the order did not direct the entry of final judgment in
accordance with OCGA § 9-11-54 (b). Under these circumstances, Jenkins’s failure
to comply with the interlocutory appeal procedures deprives us of jurisdiction over
this appeal, which is hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
01/16/2020
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.
| {
"pile_set_name": "FreeLaw"
} |
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0030n.06
Filed: January 9, 2007
No. 05-4536
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CARL G. SIMPSON, Co-Administrator of the )
Estate of Carl D. Simpson; BONNIE REED )
SIMPSON, Co-Administrator of the Estate of Carl )
D. Simpson, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
Plaintiffs-Appellants, ) COURT FOR THE
) SOUTHERN DISTRICT OF
v. ) OHIO
)
INTERMET CORPORATION, et al., ) OPINION
)
Defendants, )
)
and )
)
NATIONAL UNION FIRE INSURANCE CO., )
)
Defendant-Appellee. )
BEFORE: COOK and McKEAGUE, Circuit Judges; and WILHOIT, District Judge.*
McKEAGUE, Circuit Judge. This is an appeal from the denial of declaratory relief
regarding insurance coverage for an employee’s work-related death allegedly caused by the
employer’s intentional tort. Essentially, the question presented is whether, under Ohio law, an
umbrella policy of insurance which provides coverage for liability for an occurrence in excess of the
_________________________
No. 05-4536
Simpson v. Intermet Corp., et al.
* The Honorable Henry R. Wilhoit, Jr., United States District Judge for the Eastern District
of Kentucky, sitting by designation.
limits of the insured’s primary employer’s liability coverage, and which does not exclude coverage
for injury arising in the course of employment, but does exclude coverage for injury resulting from
an accident expected or intended from the standpoint of the insured employer, effectively excludes
coverage for what is known under Ohio law as a “substantial certainty” intentional tort. The district
court, ruling on cross-motions for summary judgment, answered this question in the affirmative.
Appellants contend the district court misapplied the controlling Ohio law. For the reasons that
follow, we affirm the district court’s judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
The material facts are not disputed. Carl D. Simpson had been employed by Intermet
Corporation (“Intermet”) at its Ironton Iron, Inc. plant in Ironton, Ohio since 1992. For more than
four years, Simpson was an operator of a mold manufacturing machine called a Sutter machine. The
Sutter machine injects a sand and resin mixture into a mold to later be filled with iron to create I-
beams, an end-product used in automotive manufacturing. Numerous times each shift, the injection
ports in the molds would become clogged, requiring the operator to enter into the pinch-points of
the machine to remove the clog. During one of these removal procedures on September 21, 1999,
Simpson became trapped between the machine’s pinch-points and was crushed, dying within four
hours after the accident.
Co-Administrators of Simpson’s estate, his father Carl G. Simpson and wife Bonnie Reed
Simpson, brought an action against Intermet in the Southern District of Ohio, alleging Simpson’s
death was the result of an intentional tort. Plaintiffs alleged, in relevant part, that the conditions in
-2-
No. 05-4536
Simpson v. Intermet Corp., et al.
which Simpson had worked were the product of intentional acts by Intermet and resulted in a
substantial certainty that he and other similarly situated employees would be injured. Prior to trial,
a settlement of this underlying action was reached between the estate and Intermet and Intermet’s
primary insurer, Liberty Mutual Insurance Company (“Liberty Mutual”). Pursuant to the settlement,
the estate received benefits from Liberty Mutual up to the limits of the primary insurance coverage.
The settlement also included Intermet’s assignment to the estate of its right to proceed against the
umbrella policy insurer, National Union Fire Insurance Company (“National Union”), which had
refused to defend or participate in the litigation and in the settlement negotiations.
This appeal stems from the Co-Administrators’ exercise of this right of assignment. In the
same underlying action in the Southern District of Ohio, they sought a declaratory judgment to the
effect that Intermet’s liability for Simpson’s death pursuant to the “substantial certainty” intentional
tort claim came within the coverage afforded Intermet under National Union’s commercial umbrella
policy. There being no genuine issue of material fact, the district court ruled on cross-motions for
summary judgment. The district court concluded that National Union was not obligated to
indemnify Intermet under the terms of the policy. It concluded that Intermet’s assumed liability for
Simpson’s death, in response to a substantial certainty intentional tort claim, was necessarily based
on the theory that the accident was, from the standpoint of Intermet, either expected or intended.
Because the umbrella policy provided coverage only for an “occurrence,” which is by definition
“neither expected nor intended from the standpoint of the insured,” the court held National Union
owed no duty to indemnify. The court granted National Union’s motion for summary judgment and
denied the estate’s motion for declaratory judgment and summary judgment. This appeal followed.
-3-
No. 05-4536
Simpson v. Intermet Corp., et al.
II. ANALYSIS
In this diversity action, calling for interpretation of an insurance policy, the law of Ohio
provides the governing substantive law. Under Ohio law, an insurance policy is a contract and its
construction is a matter of law. Penn Traffic Co. v. AIU Ins. Co., 99 Ohio St. 3d 227, 229 (2003).
The court looks first to the policy language, giving terms their plain and ordinary meaning. Id. If
the language is clear and unambiguous, then it must be enforced as written and the court may not
resort to construction of the language. Karabin v. State Automobile Mut. Ins. Co., 10 Ohio St. 3d
163, 167 (1984). If the language allows for more than one reasonable interpretation, then it must be
strictly construed against the insurer. King v. Nationwide Ins. Co., 35 Ohio St. 3d 208, 211 (1988).
There is no ambiguity on the face of National Union’s policy language. National Union’s
Commercial Umbrella Policy provides in pertinent part:
I. Coverage
We will pay on behalf of the Insured those sums in excess of the Retained Limit that
the Insured becomes legally obligated to pay by reason of liability imposed by law
or assumed by the Insured under an Insured Contract because of Bodily Injury. . . .
that takes place during the Policy Period and is caused by an Occurrence happening
anywhere in the world.
IV. Definitions
H. Occurrence means:
1. As respects Bodily Injury or Property Damage, an accident, including continuous
or repeated exposure to conditions, which results in Bodily Injury or Property
Damage neither expected nor intended from the standpoint of the Insured. All such
exposure to substantially the same general conditions shall be considered as arising
out of one Occurrence.
-4-
No. 05-4536
Simpson v. Intermet Corp., et al.
V. Exclusions
This insurance does not apply to:
O. Bodily Injury or Property Damage expected or intended from the standpoint of
the Insured.
Commercial Umbrella Policy Form pp. 1-9, JA 382-90 (emphasis added). Pursuant to the definition
of “occurrence,” coverage does not extend to bodily injury caused by an accident – including an
accident consisting of continuous or repeated exposure to conditions – if the injury was expected
or intended from the standpoint of Intermet. Consistent with this definition, removing any doubt
about the scope of coverage, the policy language also, in Exclusion O, expressly excludes coverage
for bodily injury expected or intended from the standpoint of Intermet. The instant controversy
stems not from the language itself, but from its significance under Ohio law.
After briefly surveying the evolution of Ohio law on insurance coverage of liability for
intentional torts, the district court essentially agreed with plaintiffs that Penn Traffic Co. v. AIU Ins.
Co., 99 Ohio St. 3d 227 (2003), represents the most recent relevant ruling on the subject by the
state’s highest court. Although Penn Traffic was then and continues to be the case primarily relied
on by plaintiffs, the district court reached a different conclusion than plaintiffs regarding its import.
In Penn Traffic, the Ohio Supreme Court considered an umbrella policy similar to National
Union’s. The | {
"pile_set_name": "FreeLaw"
} |
Case: 19-50080 Document: 00515185889 Page: 1 Date Filed: 11/04/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-50080 November 4, 2019
Lyle W. Cayce
NANCY C. CALDERON; PHILLIP R. CALDERON, Clerk
Plaintiffs - Appellants
v.
BANK OF NEW YORK MELLON, formerly known as Bank of New York, as
Trustee for the Certificateholders of the CWABS, Incorporated, Asset-Backed
Certificates Series 2006-22; SPECIALIZED LOAN SERVICING, L.L.C.,
Defendants - Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:17-CV-933
Before OWEN, Chief Judge, and HAYNES and COSTA, Circuit Judges.
PER CURIAM:*
Nancy C. Calderon and Phillip R. Calderon challenge the grant of
summary judgment in favor of Bank of New York Mellon (“Bank”). In granting
the Bank’s summary judgment motion, the district court held that res judicata
barred the Calderons’ Texas Constitutional claims, and that there was no
* 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: 19-50080 Document: 00515185889 Page: 2 Date Filed: 11/04/2019
No. 19-50080
genuine dispute of material fact regarding the Bank’s abandonment of its
acceleration notice. The Calderons argue the district court erred by applying
res judicata to dismiss a claim under the Texas Constitution that they did not
raise, and the Bank’s purported abandonment of acceleration letter was
ambiguous, therefore creating a genuine fact issue for a jury to decide. We
AFFIRM.
FACTS AND PROCEDURAL HISTORY
In 2006, the Calderons purchased a house located at 2125 West
Gramercy Place, San Antonio, Texas 78201, by executing a Texas Home Equity
Adjustable Rate Note and Deed of Trust in the amount of $414,500. The Note
and Deed of Trust were then assigned to the Bank. The Calderons indisputably
defaulted on the Note and Deed of Trust.
As a result, the Bank sent the Calderons a Notice of Acceleration on
August 10, 2010, accelerating the debt on the Note. (The date of this
acceleration is disputed. The Calderons claim the loan was accelerated on
March 10, 2010.) On August 19, 2010, the Calderons executed a Loan
Modification Agreement for $509,033.06. On August 30, 2010, the Bank sent
the Calderons a Letter of Abandonment, describing the Bank’s abandonment
of the August 10 acceleration due to the loan modification.
A year later, on August 14, 2011, the Calderons again defaulted, and the
Bank sent a Notice of Default seeking only the past due payments totaling
$20,203.68. The Calderons filed suit in state court against Bank of America,
acting as the Bank’s mortgage servicer, on February 6, 2012, contending the
Bank did not have authority to foreclose on the property, and requesting a
declaratory judgment, quiet title, injunctive relief, and attorney’s fees. The
case was removed to federal court. On July 27, 2012, the Bank sent the
2
Case: 19-50080 Document: 00515185889 Page: 3 Date Filed: 11/04/2019
No. 19-50080
Calderons a Payoff Demand Statement. On April 23, 2013, the court granted
summary judgment for Bank of America in the 2012 suit.
On April 25, 2013, the Calderons sent the Bank a letter stating that the
2010 Loan Modification Agreement violated the Texas Constitution. In
response, on June 27, 2013, the Bank sent a Notification of Cure, denying all
the Calderons’ complaints and rescinding the Loan Modification.
Also in 2013, the Calderons were named class representatives in a class-
action lawsuit in the Southern District of Texas against Bank of America, the
mortgage servicer for their loan. Following a decision favorable to the Bank of
America on a certified question to the Texas Supreme Court, the case was
voluntarily dismissed without prejudice.
On May 15, 2014, the Bank sent the Calderons a new Notice of
Acceleration. On September 15, 2016, the Bank sent the Calderons a new
Notice of Default and Intent to Accelerate. On March 14, 2017, the Bank sent
another new Notice of Acceleration.
On August 14, 2017, the Calderons filed a complaint in state court, and
the Bank timely removed this action to federal court. On January 17, 2018,
the Calderons filed an amended complaint to quiet title alleging that the Bank
accelerated the loan on August 10, 2010, and the Bank never abandoned that
acceleration, and, even if they had, the Calderons had detrimentally relied on
the acceleration, and, therefore, the statute of limitations had run on the
Bank’s ability to foreclose on the property. The Bank moved for summary
judgment, which the district court granted.
ANALYSIS
Texas substantive law applies to this diversity-jurisdiction case. Erie
R.R. v. Tompkins, 304 U.S. 64, 78–79 (1938). We review the res judicata effect
of a prior judgment de novo. Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d
3
Case: 19-50080 Document: 00515185889 Page: 4 Date Filed: 11/04/2019
No. 19-50080
559, 571 (5th Cir. 2005). Likewise, the district court’s “grant[] and denial[] of
summary judgment [is reviewed] de novo.” Century Surety Co. v. Seidel, 893
F.3d 328, 332 (5th Cir. 2018) (quotations and citation omitted). Summary
judgment is proper “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(a).
A. Texas Constitutional Claims
The Calderons argue that the district court erred by finding a
constitutional claim regarding the 2010 Loan Modification barred under res
judicata. In Texas, for res judicata to apply, three elements must be present:
“(1) a prior final judgment on the merits by a court of competent jurisdiction;
(2) identity of parties or those in privity with them; and (3) a second action
based on the same claims that were raised or could have been raised in the
first action.” Citizens Ins. Co. of Am. v. Daccach, 217 S.W.3d 430, 449 (Tex.
2007). The Calderons dispute the first and third elements.
The Calderons assert that res judicata is not at issue because they did
not raise a claim under the Texas Constitution in this case. It is true that it
was not properly raised in pleadings, but it was relied upon in the Calderons’
response to the Bank’s summary judgment motion, prompting the district
court to address the Calderons’ argument. See Fisher v. Metro. Life Ins. Co.,
895 F.2d 1073, 1078 (5th Cir. 1990).
In so doing, the district court was correct that any such claim would be
precluded. Texas law requires a “transactional approach” to claim preclusion:
“A subsequent suit will be barred if it arises out of the same subject matter of
a previous suit and which through the exercise of diligence, could have been
litigated in a prior suit.” Barr v. Resolution Tr. Corp. ex rel. Sunbelt Fed. Sav.,
837 S.W.2d 627, 631 (Tex. 1992). Thus, the claim need not be previously
4
Case: 19-50080 Document: 00515185889 Page: 5 Date Filed: 11/04/2019
No. 19-50080
actually raised if it previously could and should have been raised. The
Calderons did not challenge the constitutionality of the Loan Modification in
the 2012 lawsuit. However, they clearly could have. That case involved the
same Note and Deed of Trust as this one. The modification in question
occurred in 2010, well before the 2012 suit was filed. The Calderons cannot
now assert a constitutional claim that they neglected to raise in 2012.
Therefore, to the extent that any constitutional claim was raised or relied upon
in this case, we affirm the district court’s judgment on the issue of res judicata.
B. | {
"pile_set_name": "FreeLaw"
} |
COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER ON MOTION FOR REHEARING OF COURT’S ORDER GRANTING EN BANC RECONSIDERATION
Appellate case name: In the Interest of J.J.G., L.K.G., H.A.G., and A.G.G
Appellate case number: 01-16-00104-CV
Trial court case number: 2014-00610J
Trial court: 313th District Court of Harris County
Date motion filed: September 25, 2017
Party filing motion: J.R.G., appellant
It is ordered that the motion for rehearing is DENIED GRANTED.
Judge’s signature: /s/___Evelyn v. Keyes________________________________________
Acting Individually Acting for the Court
The en banc court consists of: Chief Justice Radack and Justices Jennings, Keyes, Higley, Bland,
Massengale, Brown, Lloyd, and Caughey. Justice Jennings voted to grant the motion for the
reasons expressed in his dissenting opinion.
Date: November 14, 2017
| {
"pile_set_name": "FreeLaw"
} |
127 N.W.2d 606 (1964)
Marion BOYER, Appellant,
v.
IOWA HIGH SCHOOL ATHLETIC ASSOCIATION and Independent School District of Mason City, Iowa, Appellees.
Carroll GARLAND, Appellant,
v.
IOWA HIGH SCHOOL ATHLETIC ASSOCIATION and Independent School District of Mason City, Iowa, Appellees.
No. 51235.
Supreme Court of Iowa.
April 8, 1964.
*607 Pappas & Senneff, Mason City, for appellants.
Westfall, Laird & Burington, and Beck & Butler, Mason City, for appellees.
GARFIELD, Chief Justice.
Two paying spectators at a high school tournament basketball game brought law actions against the Iowa High School Athletic Association and the Independent School District of Mason City to recover for personal injuries from collapse of the bleachers. The trial court sustained the school district's motion to dismiss on the ground it was an agency of the state, not liable for negligence in the discharge of a governmental function in the absence of statutory authority for the actions. Plaintiffs appeal from the dismissal. No determination has been made as to the athletic association's liability and that question is not before us.
Since the actions are identical we will refer to only one of them.
I. The single error relied on for reversal is the sustaining of the motion in that, it is said, the doctrine of governmental immunity should be abrogated in Iowa as outmoded, harsh and not in keeping with the modern trend of the law. Unquestionably adherence to our prior decisions over a period of nearly a hundred years would lead to an affirmance.
The school district is a quasi corporation, an arm or agency of the state, created by the legislature to carry out the governmental function of maintaining public schools. City of Bloomfield v. Davis County Comm. School Dist., 254 Iowa 900, 904, 119 N.W.2d 909, 912, and citations.
As such a quasi corporation a school district does not differ essentially from a county except that its functions and the purposes of its organization are fewer and more restricted. Lane v. District Township of Woodbury, 58 Iowa 462, 463, 12 N.W. 478.
These quasi corporations are to be distinguished from municipal corporations proper, such as cities, which are more amply endowed with corporate functions, conferred in general at the request of the inhabitants of the municipality for their peculiar and special advantage and convenience. Soper v. Henry County (Dillon, J.), 26 Iowa 264, 267; Snethen v. Harrison County, 172 Iowa 81, 85-86, 152 N.W. 12, 13; Larsen v. School District, 223 Iowa 691, 700-701, 272 N.W. 632; Shirkey v. Keokuk County, 225 Iowa 1159, 1170, 275 N.W. 706, 281 N.W. 837.
Commencing with Soper v. Henry County, supra, in 1868, we have consistently and repeatedly held, with three exceptions later to be mentioned, that such quasi corporations as counties and school districts are not liable for negligence in the absence of a statute so providing. Speaking of the liability of such "involuntary * * * divisions of the state," the Soper opinion holds (pages 267, 271 of 26 Iowa): "To the statute they owe their creation, and the statute confers upon them all the powers which they possess, prescribes all the duties which they owe, and imposes all the liabilities to which they are subject. * * * If the county ought to be liable in such a case, the remedy must be sought from the legislature."
Snethen v. Harrison County, Larsen v. School District, Shirkey v. Keokuk County, *608 all supra, and Post v. Davis County, 196 Iowa 183, 192-193, 191 N.W. 129, 194 N.W. 245, are among decisions which repeat the quoted language. To like effect are Cunningham v. Adair County, 190 Iowa 913, 915-916, 181 N.W. 20; Bruggeman v. Independent School Dist., 227 Iowa 661, 664, 289 N.W. 5; Perkins v. Palo Alto County, 245 Iowa 310, 317, 60 N.W.2d 562, 565; Wittmer v. Letts, 248 Iowa 648, 651, 80 N.W.2d 561, 562.
In 1908 Wenck v. Carroll County (Weaver, J.), 140 Iowa 558, 560, 118 N.W. 900, observed: "The rule which has heretofore obtained does not often work substantial injustice, and, if it is to be materially modified or overthrown, it should be done by an expression of the legislative will to that effect."
That our decisions correspond with many others to the effect a school district is not liable, in the absence of statute, for injury to pupils or others by reason of the condition of the school premises, see the annotations in 9 A.L.R. 911 and those supplementing it; 40 A.L.R. 1091; 160 A.L.R. 7, 127 et seq.; 86 A.L.R.2d 489, 545-546.
The annotation in 160 A.L.R. 7, 127, 129, cites many decisions in support of this rule: "* * * in the absence of statute, it is the general rule that school districts, * * * are immune from liability in tort for the personal injuries or death of pupils or other persons resulting from the dangerous, defective, unsafe, or negligent condition of school buildings, school grounds, or other school facility or equipment on school premises, * * *.
"A similar rule obtains with respect to the liability of counties, or towns not having the status of a municipal corporation, while in charge of public school premises."
To like effect is Anno. 86 A.L.R.2d 489, 546.
We now mention the three exceptions we have recognized to the rule of nonliability of quasi public corporations. (1) Counties were held liable for injury from defective bridges and approaches thereto. This was first recognized in Wilson & Gustin v. Jefferson County, 13 Iowa 181. After a change in the applicable statute the cited decision and those which followed it were overruled in Post v. Davis County, supra, 196 Iowa 183, 191, 191 N.W. 129, 194 N.W. 245, where "we return to the fundamental principle of nonliability of the county in the absence of legislation creating liability" (196 Iowa pages 195-196, 191 N.W. page 135).
(2) Ness v. Independent School Dist., 230 Iowa 771, 298 N.W. 855, holds the district liable in damages for a nuisance.
(3) Wittmer v. Letts, supra, 248 Iowa 648, 80 N.W.2d 561, holds a county liable for injury to a paying patient in its hospital by reason of the negligence of an employee, on the theory maintenance of the hospital was a proprietary, not a governmental, function.
II. The trial court ruled that holding the basketball tournament was a governmental function, not a proprietary one. There is no room for a contrary holding here on this point. Plaintiff does not contend the court erred in this respect. As previously indicated, her sole assigned error is that the whole doctrine of governmental immunity is outmoded and should be abrogated by the courts. It is of course fundamental that a law case will not be reversed on a possible error not assigned and argued. See rule 344(a) (4) (Third), Rules of Civil Procedure, 58 I.C.A.
We may observe many authorities support the view the school district was engaged in a governmental function even though spectators at the game were charged admission. They include Richards v. School District, 348 Mich. 490, 83 N.W.2d 643, 648-54; Mokovich v. Independent School Dist., 177 Minn. 446, 225 N.W. 292, 293; Rhoades v. School District, 115 Mont. 352, 142 P.2d 890, 160 A.L.R. 1, 6; Brown v. Board of Trustees, 303 N.Y. 484, 104 N.E.2d 866, 34 A.L.R.2d 720, 723; Smith v. Hefner, 235 N.C. 1, 68 S.E.2d 783, 788; Reed v. Rhea *609 County, 189 Tenn. 247, 225 S.W.2d 49; Annos. 160 A.L.R. 7, 67-68, 182, 191-192; 86 A.L.R.2d 489, 576, 582-584. Sawaya v. Tucson High School Dist., 78 Ariz. 389, 281 P.2d 105, is the only contrary precedent called to our attention.
We may also observe, without deciding the point, there is much authority that a school district exercises only governmental functions. Reed v. Rhea County, supra; Annos. 160 A.L.R. 7, 65-68; 86 A.L.R.2d 489, 516-520. See also Lane v. District Township of Woodbury, supra, 58 Iowa 462, 463, 12 N.W. 478; Larsen v. School District, supra, 223 Iowa 691, 700-701, 272 N.W. 632.
III. We have held many times that if the doctrine of governmental immunity is to be changed it should | {
"pile_set_name": "FreeLaw"
} |
NO. 07-07-0014-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JANUARY 31, 2007
______________________________
IN RE JOHANSON LEE WATSON,
Relator
_______________________________
Original Proceeding
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Pending before this court is the petition of Johanson Lee Watson for writ of
mandamus. The document is somewhat vague; so, we will construe it in a liberal manner.
In so construing it, we see that he wants us to order the “Judge of the 46th Judicial District
Court of Wilbarger County Texas” (district court) “to act on the pending motion.” We deny
the writ for several reasons.
First, the nature of the motion goes unexplained, though Watson periodically refers
to an application for writ of habeas corpus. Nor has he provided us with an appendix
containing the “motion” at issue or any other documents pertinent to his request for
mandamus relief. The rules of procedure obligate one seeking mandamus relief to
accompany his petition with an appendix. TEX . R. APP. P. 52.3(j). The latter must include,
among other things, a “certified or sworn copy of . . . [the] document showing the matter
complained of.” Watson has not complied with this rule.
Second, a trial court cannot be found to have abused its discretion until the
complainant establishes that it 1) had a legal duty to perform a non-discretionary act, 2)
was asked to perform the act, and 3) failed or refused to do so. O’Connor v. First Court
of Appeals, 837 S.W.2d 94, 97 (Tex. 1992). To the extent that Watson complains of the
trial court’s failure to set aside his conviction, application of the foregoing rule would
necessarily require him to illustrate that the trial court was aware of his request for and
refused same. This he did not do. Moreover, the same analysis applies to any motion
pending before the trial court filed by Watson. He has failed to illustrate that any of his
motions have been presented to the trial court or that the court has refused to rule.
Accordingly, the petition for writ of mandamus is denied.
Brian Quinn
Chief Justice
2
| {
"pile_set_name": "FreeLaw"
} |
114 B.R. 649 (1990)
In re Paul W. GEIGER, Debtor.
Margaret KAWAAUHAU and Solomon Kawaauhau, Plaintiffs,
v.
Paul W. GEIGER, Defendant.
Bankruptcy No. 89-01062-BKC-DPM, Adv. No. 89-0154.
United States Bankruptcy Court, E.D. Missouri, E.D.
April 17, 1990.
Michael K. Sheehan, St. Louis, Mo., for debtor/defendant.
*650 Norman W. Pressman, St. Louis, Mo., for plaintiffs.
A. Thomas DeWoskin, Trustee, St. Louis, Mo.
James S. Cole, Asst. U.S. Trustee, St. Louis, Mo.
MEMORANDUM OPINION
DAVID P. McDONALD, Chief Judge.
I. JURISDICTION
This Court has jurisdiction over the parties and subject matter of this proceeding pursuant to 28 U.S.C. §§ 1334, 151, and 157 and Local Rule 29 of the United States District Court for the Eastern District of Missouri. This is a "core proceeding" pursuant to 28 U.S.C. § 157(b)(2)(I), which the Court may hear and determine.
II. PROCEDURAL BACKGROUND
The Debtor, Dr. Paul W. Geiger, filed his voluntary Chapter 7 petition on March 16, 1989. A Complaint To Determine Dischargeability Of Debt was filed by judgment creditors Margaret and Solomon Kawaauhau on June 23, 1989. Debtor's Answer To Complaint To Determine Dischargeability was filed with the Court on July 26, 1989. The Debtor also filed a Motion For Summary Judgment and its brief in support thereof on July 26, 1989. In response, creditors filed their Memorandum In Opposition To Debtor's Motion For Summary Judgment on August 22, 1989. A hearing was held on the Debtor's Motion For Summary Judgment on September 15, 1989, and at the request of the parties, the Court took the matter under submission.
The Court, having examined the pleadings filed in this matter, having received and examined memoranda of law submitted by the parties in support of their respective positions, and being fully advised in the premises, makes the following Findings Of Fact and Conclusions Of Law.
III. FACTUAL BACKGROUND
On October 18, 1985, Margaret and Solomon Kawaauhau filed a medical malpractice case against Dr. Paul W. Geiger in Hilo, Hawaii alleging that Dr. Geiger's negligence injured Margaret Kawaauhau and gave rise to the injuries suffered by Solomon Kawaauhau, her husband. A jury trial was conducted in the Third Circuit Court for the State of Hawaii from February 23, 1987 to February 27, 1987. At the conclusion of the trial, the jury found that Dr. Geiger was negligent and held that his negligence was the legal cause of injury to the Plaintiffs. However, the jury reduced the award of special and general damages by 10%, finding Margaret Kawaauhau 10% contributorily negligent. No punitive damages were awarded. On March 25, 1987, a judgment against Dr. Paul W. Geiger was entered by the Honorable Ernest Kubota. The total judgment awarded in favor of Plaintiffs Margaret and Solomon Kawaauhau was in the amount of $355,040.
IV. DISCUSSION AND ANALYSIS
The Debtor's Motion For Summary Judgment raises two legal issues which his counsel contends preclude litigation of the creditors' Complaint To Determine Dischargeability and entitle the Debtor to a judgment as a matter of law. Summary judgment is governed by Rule 56 of the Federal Rules of Civil Procedure, as incorporated by Bankruptcy Rule 7056. Rule 56(c) provides that summary judgment
... shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
FRCP 56(c).
The Debtor asserts that no genuine dispute exists on any material fact because all facts necessary to determine the dischargeability of its debt were established in the prior state court proceeding. Therefore, the Debtor requests that the Court apply the principles of res judicata and collateral estoppel to preclude relitigation of facts establishing willful and malicious injury within the meaning of 11 U.S.C. § 523(a)(6).
*651 In Brown v. Felsen, 442 U.S. 127, 139-40, 99 S.Ct. 2205, 2213, 60 L.Ed.2d 767 (1979), the Supreme Court concluded that the exclusive jurisdiction granted to bankruptcy courts to resolve questions of dischargeability under section 17(a) of the Bankruptcy Act prevented the application of claim preclusion res judicata to resolve questions of dischargeability. See, In re Garner, 881 F.2d 579, 581 (8th Cir. 1989), where the court found that the logic of the Brown decision also applied to issues arising under section 523(a) of the Bankruptcy Code, the provision which replaced section 17(a) of the Act. In Garner, the Eighth Circuit noted that issue preclusion collateral estoppel could still be applied in a later dischargeability proceeding. "`If, in the course of adjudicating a state-law question, a state court should determine factual issue using standards identical to those of § 17, then collateral estoppel, in the absence of countervailing statutory policy, would bar relitigation of those issues in the bankruptcy court.'" Id., quoting, Brown, 442 U.S. at 139 n. 10, 99 S.Ct. at 2213 n. 10.
In determining whether issue preclusion is to be given effect, a number of bankruptcy courts have adopted a four point test. First, the issue sought to be precluded must be identical to the one in the prior action. Second, the issue must have been actually litigated in the prior action. Third, the prior determination must have resulted in a valid and final judgment. Finally, the determination of the facts for which preclusion is sought must have been necessary to the outcome. In re McQueen, 102 B.R. 120, 123 (Bankr. S.D.Ohio 1989); see also, In re Ross, 602 F.2d 604, 608 (3rd Cir.1979). In addition, the burden of proof required in the prior proceeding must be no less than that required to establish an exception to discharge under section 523(a). Garner, 881 F.2d at 581. A finding of willful and malicious conduct on the part of a debtor must be based on "clear and convincing evidence." See, e.g., In re Ikner, 883 F.2d 986, 989 (11th Cir.1989). In the underlying case, Judge Kubota applied Hawaii substantive law and instructed the jury as follows:
The burden is on the plaintiffs to prove their claim by a preponderance of the evidence. To prove by a preponderance of the evidence means to prove that something is more likely so than not so. It means to prove by evidence which, in your opinion, convinces you that something is more probably true than not true. Transcript of Proceedings, p. 60 (Feb. 27, 1987).
Therefore, the evidentiary standard employed at the prior proceeding does not satisfy the "clear and convincing" standard required under 11 U.S.C. § 523(a)(6).
Nonetheless, the Debtor contends that the Plaintiffs are collaterally estopped from raising the issue of willful and malicious conduct because the jury award in Hawaii was premised on a finding of negligence. However, the Plaintiffs seek to except the Hawaii judgment from discharge pursuant to the terms of 11 U.S.C. § 523(a)(6) which employs an entirely different standard of culpability. Section 523(a)(6) provides that a debtor is not discharged from any debt for willful and malicious injury by the debtor to another entity. A review of the jury instructions and the special verdict form reveals that the issues of willfulness and maliciousness were not actually litigated or necessary to the jury determination. Therefore, the Court finds that the precise issue of whether the Plaintiffs' injuries arose from the willful and malicious conduct of the Debtor was not actually litigated in the Hawaii court. Accordingly, the Court finds that genuine issues of material fact exist on this issue and, holds that summary judgment in favor of Debtor-Defendant is not appropriate.
| {
"pile_set_name": "FreeLaw"
} |
Order Michigan Supreme Court
Lansing, Michigan
May 25, 2010 Marilyn Kelly,
Chief Justice
140040 Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
PEOPLE OF THE STATE OF MICHIGAN, Diane M. Hathaway,
Plaintiff-Appellee, Justices
v SC: 140040
COA: 290916
Kent CC: 00-005302-FC
ERIC ROMAN POWELL,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the October 2, 2009
order of the Court of Appeals is considered, and it is DENIED, because the defendant has
failed to meet the burden of establishing entitlement to relief under MCR 6.508(D).
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.
May 25, 2010 _________________________________________
s0517 Clerk
| {
"pile_set_name": "FreeLaw"
} |
827 F.2d 769
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Federico ARAS, Petitioner-Appellant,v.UNITED STATES PAROLE COMMISSION et al., Respondents-Appellees.
No. 87-5190
United States Court of Appeals, Sixth Circuit.
August 24, 1987.
ORDER
1
Before RALPH B. GUY, Jr. and BOGGS, Circuit Judges, and SUHRHEINRICH, District Judge.*
2
This pro se petitioner appeals from a district court's order dismissing his petition for a writ of habeas corpus filed under 28 U.S.C. Sec. 2241. The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon consideration of the record and briefs submitted by the parties, the panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.
3
Petitioner failed to file objections within ten days of the date of service of the magistrate's report and recommendation, despite being specifically advised to do so. A party who does not file timely objections to a magistrate's report and recommendation after being advised to do so waives his right to appeal. Thomas v. Arn, ---- U.S. ----, 106 S.Ct. 466, 471 (1985); Wright v. Holbrook, 794 F.2d 1152, 1154-55 (6th Cir. 1986); Wilson v. McMacken, 786 F.2d 216, 220 (6th Cir. 1986).
4
For this reason, this appeal is hereby dismissed. Rule 9(b)(5), Rules of the Sixth Circuit.
*
The Honorable Richard F. Suhrheinrich, U.S. District Judge for the Eastern District of Michigan, sitting by designation
| {
"pile_set_name": "FreeLaw"
} |
793 F.Supp. 273 (1992)
UNITED STATES of America, Plaintiff,
v.
Paul SUMNER, Defendant.
CR. A. No. 91-10056-01.
United States District Court, D. Kansas.
April 29, 1992.
*274 Asst. U.S. Atty., D. Blair Watson, Wichita, Kan., for the Government.
Daniel E. Monnat, Monnat & Spurrier, Wichita, Kan., Ronald P. Wood, Gates & Clyde, Overland Park, Kan., for defendant.
MEMORANDUM AND ORDER
THEIS, Senior District Judge.
A number of motions are pending in this matter. The court held an evidentiary hearing on April 10, 1992.
I. Motion to Suppress Doc. 22
The defendant moves to suppress all evidence seized, all statements of the defendant, and all observations of law enforcement officers obtained during the search of certain real property owned by Dr. Ralph N. Sumner, M.D. (the defendant's father). The defendant makes the following arguments: (1) he has a reasonable expectation of privacy in the property, used by the entire family as a weekend and vacation home; (2) the officers trespassed on the curtilage of the property; (3) the "open fields" doctrine does not exist under Kansas law; and (4) any statements made were involuntary and not pursuant to a free, knowing and intelligent waiver of his rights.
Dr. Ralph N. Sumner, M.D. (Dr. Sumner) testified at the hearing that he is the owner of the property where the marijuana was discovered growing on July 15 and 16, 1991. The property consists of 240 acres and is located approximately 3 2/3 miles east of the city of Fredonia, Kansas. Dr. Sumner testified that all of his children have keys and have free access to the property. The members of the Sumner family use the property as a weekend retreat. The Sumners swim, fish, hunt, entertain guests, and stay overnight at a trailer home located on the property. Access to the trailer or "cabin" area is via a gravel road leading from the county road at the Sumner's property line. The gravel road passes through three locked gates, the first of which is located just off the county road, and the third of which is located near the cabin area. The gates are posted with "No Trespassing" or "Private Property" signs.
The cabin area (approximately four to five acres) is kept mowed. Located on this mowed or manicured area are the trailer, the storage shed, barbecue grills, picnic tables, and lawn furniture. Dr. Sumner testified that the vast majority of the family's time is spent on the manicured area, on the nearby pond, or on or near the gravel road which leads to the manicured area. Dr. Sumner also mows along the gravel road.
Wilson County Deputy Sheriff Mike Barrow testified that he first met the defendant, Paul Sumner, on the date of Sumner's arrest, July 16, 1991. At that time, *275 Barrow was an officer with the Fredonia Police Department and had previously received information about cultivated marijuana growth on Dr. Sumner's property. Barrow had been on the property for the first time the day before, July 15, 1991. On July 15, 1991, Barrow and another officer went to the Sumner property to look for marijuana. They were dropped off on the county road that runs along the south edge of the Sumner property. The officers walked north through the neighboring property, following the west edge of the Sumner property. The officers eventually crossed over the fence (three or four strands of barbed wire) and onto the Sumner property. The officers followed a dry creekbed toward the pond. The officers then followed some trails in the grass which led to a plot of marijuana. Barrow testified that they found a plot of thirteen plants, which were approximately five feet nine inches in height. Barrow testified that they were on the Sumner property for about an hour and they never entered the gravel road or the manicured area.
The next day, July 16, 1991, Barrow returned with two officers to get more information, including an accurate count of the number of marijuana plants growing on the property. The officers entered the property by the same route. The officers proceeded to the marijuana plants which had been discovered the day before. Barrow testified that he heard a motor start up over toward the pond. The officers proceeded around the pond toward the noise. The officers located Paul Sumner using a gas powered water pump to water a plot of marijuana plants with pond water. Barrow arrested Sumner. One officer remained at the scene to secure the area. Barrow and the other officer took the defendant to the manicured area, and took the defendant in the defendant's car to the police station.
Defendant first argues that this is not an "open fields" case because the officers actually made warrantless entries onto the curtilage of the dwelling. Pursuant to Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984), only the curtilage, not the surrounding open fields, warrants fourth amendment protection from unreasonable searches and seizures. The factors for determining the extent of a home's curtilage are: "the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by." United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 1139-40, 94 L.Ed.2d 326 (1987).
The evidence at the hearing shows that marijuana plots were located some distance from the manicured area, with the nearest plot of marijuana being 60 yards away from the manicured area. No evidence was presented that the areas where the marijuana was located were used for any family activities. The residents had erected fences and no trespassing signs; however, the fence that the police officers crossed was only three or four strands of barbed wire.
While the defendant's father testified that the family used the entire 240 acre area, the court must conclude that only the manicured area of approximately four or five acres constitutes the curtilage. That manicured area included the trailer home where the family slept, the barbecue and picnic areas, and the shed where equipment was stored. The area where the marijuana was found was apparently not used by the Sumners for any purpose. The evidence presented at the hearing indicates that the officers did not enter the curtilage area until after they had entered the open field, discovered defendant watering the marijuana and arrested him.
Assuming next that the open fields doctrine would apply if this had been a federal investigation, the defendant next argues that the government cannot rely on this doctrine. Defendant argues that the open fields doctrine is not available under Kansas law and the search was conducted by state officers. Defendant argues that the law in the Tenth Circuit "seems to indicate" that state constitutional law applies in a federal prosecution to determine the *276 lawfulness of a search by state law enforcement officials.
Federal standards govern the admissibility of evidence in federal criminal prosecutions. United States v. Glasco, 917 F.2d 797, 798 (4th Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 1120, 113 L.Ed.2d 228 (1991). The fact that state officers obtained evidence with no federal involvement does not alter the general rule. Id. at 798-99. "In determining whether evidence seized by state officials may be used against a defendant in a federal proceeding, the district court must determine the legality of the search and seizure as if federal officers had executed the search and seizure." United States v. Mealy, 851 F.2d 890, 907 (7th Cir.1988). The Courts of Appeals appear to be in agreement that evidence admissible under federal law cannot be excluded because it would be inadmissible under state law. See United States v. Pforzheimer, 826 F.2d 200, 204 (2d Cir.1987) (citing cases); United States v. Chavez-Vernaza, 844 F.2d 1368, 1372-74 (9th Cir.1987).
The Tenth Circuit recently stated that when a search is state in character, it need only conform to federal constitutional requirements for the resulting evidence to be admissible in a federal prosecution; violation of state law would not render the evidence obtained inadmissible in federal court. United States v. Morehead, 959 F.2d 1489, 1497 (10th Cir.1992). The court must reject the defendant's argument that Kansas law should apply to the search in the present case.[1]
Defendant next argues that he had a reasonable expectation of privacy in the area searched. This argument hinges on the court adopting the defendant's state law arguments, because there is no expectation of privacy in open fields. United States v. Oliver, 466 U.S. at 179, 104 S.Ct. at 1741-42. The court has rejected the defendant's argument that Kansas law controls. Consequently, even if Kansas law does not recognize the open fields doctrine,[2] defendant had no expectation of privacy in the area searched.
Defendant's final argument is that any statements he made were involuntary. Defendant argues that he requested an attorney several times but was not allowed to obtain one. The testimony from the hearing establishes that the defendant was arrested at approximately 3:45 p.m. Defendant did not receive Miranda warnings until approximately 9:15 p. | {
"pile_set_name": "FreeLaw"
} |
103 F.3d 133
NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.Anthony JONES, also known as Tonya Star Jones, Plaintiff-Appellant,v.Charles BANKS, Correctional Officer, Defendant-Appellee.
No. 95-3241.
United States Court of Appeals, Seventh Circuit.
Submitted Nov. 12, 1996.*Decided Nov. 22, 1996.
Before MANION, ROVNER and DIANE P. WOOD, Circuit Judges.
ORDER
1
Anthony Jones, a state prisoner acting pro se, sued Charles Banks, an Illinois Department of Corrections Officer, for violating his civil rights. Jones claimed that Banks allowed another prisoner, Cook, into his cell even though Banks knew Cook intended to harm Jones. The jury found in favor of Banks and the district court entered judgment. Jones filed several post-trial motions, as well as a motion for a free copy of the trial transcript. Each of these motions was denied by the district court, and Jones filed a timely notice of appeal on September 20, 1995. Although the district court granted Jones' motion to proceed on appeal in forma pauperis, Jones did not renew his motion for a free copy of the trial transcript in either the district court or this court. Thus, the appellate record does not include a trial transcript.
2
On appeal, Jones argues that the district court: (1) abused its discretion in not granting his motion for a continuance; (2) abused its discretion by allowing certain deposition testimony; (3) made improper statements during his closing argument; and (4) erred in denying his motion for a directed verdict. We affirm.
3
The burden is on an appellant to provide a reviewing court with a record sufficient to permit meaningful review. LaFollette v. Savage, 63 F.3d 540, 544 (7th Cir.1995); Stookey v. Teller Training Distrib., Inc., 9 F.3d 631, 635 (7th Cir.1993), cert. denied, 513 U.S. 839, 115 S.Ct. 122, 130 L.E.2d 67 (1994); Woods v. Thieret, 5 F.3d 244, 245 (7th Cir.1993). The reason is clear: a reviewing court must have the means to apply the relevant law to the specific facts of the case appealed. When the absence of a transcript precludes meaningful review, a court either may "dismiss the appeal or decide [the case] on the merits to the extent it is practical and possible." Fisher v. Krajewski, 873 F.2d 1057, 1061 (7th Cir.1989), cert. denied, 493 U.S. 1020 (1990).
4
Federal Rule of Appellate Procedure 10(b)(2) requires that "[i]f an appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the appellant shall include in the record a transcript of all evidence relevant to such finding or conclusion." Fed.R.App.P. 10(b)(2); see also LaFollette, 63 F.3d at 544. Failure to do so is grounds for dismissal. Fed.R.App.P. 3(a); LaFollette, 63 F.3d at 544.
5
The Rules also provide that within ten days of filing a notice of appeal, the appellant must order a transcript of such parts of the proceedings as he deems necessary to his appeal. Fed.R.App.P. 10(b)(1). If an appellant is unable to pay for the transcript, he may file a motion to proceed on appeal in forma pauperis, 28 U.S.C. § 1915, and if this motion is granted, the trial judge or a circuit judge may then grant a motion for a free transcript upon determining that the appeal is not frivolous. 28 U.S.C. § 753(f). There is no authority for a judge to grant a motion for a free trial transcript prior to the filing of a notice of appeal, and Jones' only request for a free transcript came prior to his filing a notice of appeal and before the district court granted his motion to proceed on appeal in forma pauperis. This motion was denied. Once he filed his notice of appeal and was allowed to proceed in forma pauperis, he did not renew his motion for a free transcript, nor did he request this court to provide one.
6
Here, Jones appeals several actions taken by the district court judge during the course of the trial. It is simply impossible to evaluate the merits of his argument, or even determine whether the issues raised were properly preserved for appeal absent a trial transcript. Likewise, Jones' challenge to the denial of his motion for a directed verdict must fail. The argument that there was no evidence upon which a reasonable jury could reach the verdict that it did cannot be evaluated in the absence of a transcript. See Fed.R.Civ.P. 50(a).
7
Jones argues that because he is a pro se plaintiff he should be held to a less stringent standard than counselled plaintiffs and that his appeal should not be dismissed on what he terms "procedural grounds." Although there is case law supporting Jones' argument for lenient treatment of pro se litigants' procedural errors in the trial court, see e.g., Casteel v. Pieschek, 3 F.3d 1050 (7th Cir.1993) (district court erred in dismissing pro se plaintiff's complaint for failure to state a claim, and should have allowed amendment instead), Castillo v. Cook County Mail Room Dep't, 990 F.2d 304, (7th Cir.1993) (district court erred in dismissing pro se plaintiff's claim on grounds he named unsueable entity as defendant), and although we have the authority to order that the record be supplemented with a transcript of the trial, we will not exercise that authority in a case such as this where it appears that Jones' appeal has little merit.
8
Therefore, the district court judgment is AFFIRMED.
*
After an examination of the briefs and the record, we have concluded that oral argument is unnecessary in this case, accordingly, the appeal is submitted on the briefs and the record. See Fed.R.App.P. 34(a), Cir.R. 34(f)
| {
"pile_set_name": "FreeLaw"
} |
F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 24 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
ROLAND RUDD,
Plaintiff-Appellant,
v.
BILL GRAVES, Governor of the State
No. 01-3264
of Kansas; WILLIAM P. MAHONEY,
(D.C. No. 01-CV-3067-GTV)
Police Officer, Wichita Police
(D. Kan.)
Department; DONNA JEAN
BUCKMAN, Police Officer, Wichita
Police Department; and BOB
KNIGHT, Mayor, Wichita, Kansas,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before EBEL, KELLY, and LUCERO, Circuit Judges.
*
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 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. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 36.3.
On January 12, 2000, a Kansas jury found Mr. Ronald Rudd, the plaintiff-
appellant, guilty of rape. Mr. Rudd is currently serving a prison sentence in
Kansas for that crime.
On March 20, 2001, Mr. Rudd filed a suit pursuant to 42 U.S.C. § 1983 in
the United States District Court for the District of Kansas asserting that Wichita
police officers arrested him in violation of his rights under the Fourth and
Fourteenth Amendments. (Doc. 3.) Specifically, Mr. Rudd alleged “that the
arresting officers did not reply to his question why he was under arrest.” (April
18, 2001 Order at 2; Doc. 4). Because his initial filing did not identify facts that
would allow him to press a cognizable Fourth Amendment claim, the district court
granted Mr. Rudd leave “to present any additional facts or arguments in support
of his claim.” (April 18, 2001 Order at 3; Doc. 4) In an amended complaint, Mr.
Rudd alleged two grounds for relief. First, he contended, as he had in his initial
filing, that his Fourth Amendment rights were violated when the arresting officers
failed to tell him why he was placed under arrest. Second, Mr. Rudd alleged that
the police officers did not have probable cause to make an arrest. (August 1,
2001 Order at 1-2; Doc. 7.) The district court dismissed both claims.
On August 5, 2001, Mr. Rudd filed a Notice of Appeal with this Court.
(Doc. 12.) On September 7, 2001, he filed a brief with this Court, and on
-2-
September 10, 2001, he submitted a letter to this Court asking to supplement the
record on appeal.
In his appeal, Mr. Rudd reasserts that the arresting officers violated his
Fourth Amendment rights by not explaining why he was placed under arrest, or
even telling him that he was under arrest, until he was booked several hours later
at the police station. He also renews his claim that he was arrested without
probable cause. In addition, Mr. Rudd asserts, from the record, seemingly for the
first time, that the district court did not have proper venue over the case. We find
all of Mr. Rudd’s arguments to be frivolous and affirm the judgment of the
district court.
As to the venue claim, Mr. Rudd alleges venue was improper because his
case was filed initially with the federal district court sitting in Wichita, then
transferred to Topeka, and transferred from Topeka to Kansas City, Kansas.
(Aplt. Br. at 1, 6.) Without offering any factual support, he asserts there is a
“discriminatory practice in sending the prisoners’ cases to Kansas City, Kansas.”
(Id. at 6.) Not only is Mr. Rudd’s venue claim without merit, see 28 U.S.C. §
1391(b), he has waived the issue by not properly raising it below. See FRCP
12(h)(1); 28 U.S.C. § 1406(b).
Mr. Rudd’s claim that his constitutional rights were violated because police
officers only told him the grounds for his arrest at the time he was “booked” is
-3-
also meritless. The Sixth Amendment only requires that a defendant be informed
of the charges against him when “the government has committed itself to
prosecution.” Kladis v. Brezek, 823 F.2d 1014, 1018 (7th Cir. 1987). The Fourth
Amendment–the Amendment Mr. Rudd looks to for relief–does not require
officers to tell a suspect the grounds for his arrest or even to expressly state that
he is under arrest; rather, it requires that officers have probable cause before
making an arrest. Dunway v. New York, 442 U.S. 200, 212-13 (1979) (finding
the even though a defendant “was not told he was under arrest,” his seizure fell
within the Fourth Amendment’s protection against “illegal arrests” and required a
showing of probable cause to be justified); United States v. Davis, 197 F.3d 1048,
1051 (10th Cir. 1999) (“An arrest is a ‘seizure’ for Fourth Amendment purposes
and is reasonable where there is probable cause to believe that an offense has
been or is being committed.”); United States v. Young, 105 F.3d 1, 6-8 (1st Cir.
1997) (discussing how a stop that turns into a de facto arrest must be supported by
probable cause); Kladis, 823 F.2d at 1018 (“[T]he Fourth Amendment requires
only that the police have probable cause to believe that an individual has broken
the law before arresting him.”).
Finally, contrary to Mr. Rudd’s claim, the arresting officers had probable
cause to make an arrest. “Probable cause exists where the facts and
circumstances within the arresting officer’s knowledge and of which they had
-4-
reasonably trustworthy information are sufficient in themselves to warrant a
person of reasonable caution to have the belief that an offense has been or is
being committed by the person to be arrested.” United States v. Alonso, 790 F.2d
1489, 1496 (10th Cir. 1986). In this case, officers initially received a 911
dispatch indicating that a Roland Azlum committed the rape and giving a physical
description of the assailant. While en route to the scene of the crime, at least one
of the arresting officers received a subsequent radio dispatch indicating that the
suspect was at the scene of the crime and that his name was Roland Rudd. Upon
arriving, one officer encountered a male matching the description of the alleged
assailant who identified himself as Roland Rudd. Inside the room where the rape
occurred, another officer found a distraught young woman cowering under a sink
and was told by another person present in the room that Mr. Rudd had raped the
victim. Moreover, as the Kansas trial court explained, the victim feared Mr.
Rudd. (Preliminary Exam Tr. at 25.) Such facts more than adequately show that
probable cause existed for the arrest.
For the forgoing reasons, we deem Mr. Rudd’s appeal frivolous, AFFIRM
the district court’s rulings, and DENY Mr. Rudd’s motion to supplement the
record on appeal.
-5-
We also remind Mr. Rudd that although the district court granted his
application to proceed without prepaying the appellate filing fee, he must
continue making partial payments until the entire filing fee is paid.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
-6-
| {
"pile_set_name": "FreeLaw"
} |
357 F.Supp. 853 (1973)
UNITED STATES of America For the Use of R. Rudnick and Company, an Illinois corporation,
v.
DANIEL, URBAHN, SEELYE AND FULLER, a partnership, et al.,
No. 72 C 312.
United States District Court, N. D. Illinois, E. D.
April 12, 1973.
*854 John M. Burke, Chicago, Ill., for plaintiff.
James R. Thompson, U. S. Atty., by R. B. Schaeffer, Asst. U. S. Atty., Chicago, Ill., for defendants.
MEMORANDUM OPINION and ORDER
AUSTIN, District Judge.
Plaintiff, a corporation engaged in the general construction business, brought this suit under the Miller Act, 40 U.S.C. § 270a et seq. There are four defendants, one a partnership, Daniel, Urbahn, Seelye and Fuller (hereinafter referred to as "DUSAF"), alleged to be composed of the other defendants, which are another partnership and two corporations. The complaint has previously been dismissed as to five other defendants and two others were granted summary judgment.
The complaint alleges that DUSAF was the prime contractor for the United States and the Atomic Energy Commission (AEC) for the construction of proton beam enclosures at Batavia, Illinois.[1] Prior to submitting its bid, plaintiff examined the construction site and soil boring reports that were prepared by Soil Testing Services, Inc., (a previously dismissed defendant) and that were submitted by DUSAF in its "Invitation to Bid." Plaintiff alleges that based on its inspections and the soil boring reports it believed it would not encounter any unusual water conditions and determined the amount of its bid for the construction work accordingly. Its bid was accepted by DUSAF and after beginning performance plaintiff encountered an "unusual" amount of subsurface water, alleged to be an "unknown latent physical condition differing materially from those conditions usually encountered in work of this nature."
*855 Plaintiff alleges that this condition falls within the provisions of two clauses of its contract with DUSAF that provide for an "equitable adjustment" of the contract by DUSAF; that it had increased costs of $497,559 as a result of the condition; that it demanded payment pursuant to the two contract clauses; and that DUSAF has refused to pay the additional costs.
Pending before the court are two motions, plaintiff's motion to strike the appearance of the U. S. Attorney and DUSAF's motion, filed by the U. S. Attorney, to dismiss or in the alternative, for summary judgment.
Motion to Strike the Appearance of the U. S. Attorney
In the court file is a copy of a letter from the Assistant United States Attorney General, Civil Division, which acknowledges receipt of a letter from the AEC that presumably asked the government to take part in this lawsuit. In that letter the Assistant Attorney General told the AEC that he was asking the U. S. Attorney in Chicago to undertake the defense of this case. The U. S. Attorney filed, on behalf of DUSAF, the aforementioned motion to dismiss or for summary judgment. He did not, however, file an appearance on behalf of DUSAF, as he is required to do under Local Civil Rule 6(b). Given the present posture of the case, the U. S. Attorney's filing a motion on behalf of DUSAF will be considered as equivalent to filing an appearance and therefore plaintiff's motion to strike the appearance is appropriate.
Plaintiff's contention is, in short, that because Miller Act suits are brought in the name of the United States, for the use of subcontractors, and because the purpose of the Act is to bestow a benefit upon subcontractors, it is inappropriate for the U. S. Attorney to represent a defendant contractor. The U. S. Attorney argues that because the contract between the AEC and DUSAF is a cost-plus-fixed-fee contract (CPFF),[2] under which the AEC will have to pay all of DUSAF's costs, the government has an interest in this case and under 28 U.S.C. §§ 516, 547 his appearance is proper.
The issue of the propriety of the government appearing on behalf of a defendant contractor in a Miller Act case is apparently one of first impression.[3] Therefore, it is important to determine the intent of Congress in passing the Miller Act and the statutes enumerating the duties of U. S. Attorneys.
Duties of the U. S. Attorney
The U. S. Attorney relies upon 28 U. S.C. §§ 516 and 547 as giving him authority to represent the government's interest in this case, which means appearing on behalf of the contractor DUSAF. Section 547 provides in relevant part:
Except as otherwise provided by law, each United States attorney, within his district shall . . . prosecute or defend, for the Government, all civil actions, suits or proceedings in which the United States is concerned. . . .
Section 516 provides:
Except as otherwise authorized by law, the conduct of litigation in which the United States, an agency, or officer thereof is a party, or is interested, and securing evidence therefor, is reserved *856 to officers of the Department of Justice, under the direction of the Attorney General.
While on their faces these statutes might seem to grant the U. S. Attorney such authority, an examination of the legislative history makes their scope less clear.
Since § 547 is more clearly applicable to the instant case than § 516, its background will be examined first. The Judiciary Act of 1789 provided that a person should be appointed in each judicial district to
act as attorney for the United States . . . whose duty it shall be to prosecute in such district all delinquents for crimes and offences, cognizable under the authority of the United States, and all civil actions in which the United States shall be concerned. . . .
Act of Sept. 25, 1789, ch. 20, § 35, 1 Stat. 92. While on its face it would seem to provide that the district attorney (as he was known until 1948) would only prosecute criminal and civil actions, he in fact had much discretion in defending cases in which the government was concerned.[4] In 1863 Congress provided that it was the attorneys' duty to appear on behalf of all revenue officers, Act of Mar. 3, 1863, ch. 76, § 13, 12 Stat. 741 [now 28 U.S.C. § 547(3)], although earlier it had provided for payment to them when they defended any officers of the United States for acts done in the "lawful discharge of their duties." Act of Aug. 16, 1856, ch. 124, § 12, 11 Stat. 50.[5] The Supreme Court sanctioned district attorneys defending cases by interpreting the words "to prosecute all civil actions" as
covering any case in which the district attorneys are employed to prosecute the interests of the government in any civil action, whether such interest be the subject of attack or of defense.[6]
Thus, while the statute prescribing the duties of district attorneys in defending cases may have appeared to be limited in scope, it was not so interpreted by the courts and the Attorney General.
The provision covering duties, which consisted of the original language of 1789 plus the 1863 addition covering defense of revenue officers, remained unchanged until 1948. [See 28 U.S.C. § 485 (1940)]. In that year Title 28 was revised, the purpose thereof being to create a "modern, workable" judicial code. 93 Cong.Rec. 8384 (1947) (Remarks of Representative Robison). The revision specificially denominated the attorney as the United States Attorney and in 28 U.S.C. § 507(a) (Supp. IV, 1950)[6a] provided;
(a) It shall be the duty of each United States attorney, within his district, to:
. . . . . .
(2) Prosecute or defend, for the government, all civil actions, suits *857 or proceedings in which the United States is concerned. . . .
Significantly, subsection (a)(2) contained the first statutory authorization for the U. S. Attorney to defend all civil actions in which the government was concerned. Presumably the revisers intended that the wording of the revision reflect the broad interpretation of the U. S. Attorney's duties by the courts and the Attorney General, yet there is no indication of that in either the Reviser's Notes, which accompanied the House Report, or the debate in Congress. The Reviser's Notes stated that the revision of the U. S. Attorney's duties merely changed the "arrangement and phraseology" and was a "consolidation" of prior law. H.R.Rpt. No. 308, 80th Cong., 1st Sess. A 60, 61 (1947), reprinted at 28 U.S.C.A. § 547 (1968). The only debate in Congress on the revision concerned the creation of the Tax Court. 93 Cong.Rec. 5049-50, 8384-92 (1947); 94 Cong.Rec. 7927-30, 8498-501 (1948).
In 1949 Congress amended various parts of the revision in order to "correct minor typographical and clerical errors.
. . ." 95 Cong.Rec. 5826 (1949) (Remarks of Senator O'Conor). Those involved in the revision may have realized that the U. S. Attorney's duties enumerated in the revision did not conform to the prior statutory law, because one of the amendments changed the first part of 28 U.S.C. § 507(a), which had read "It shall be the | {
"pile_set_name": "FreeLaw"
} |
968 A.2d 792 (2009)
COM.
v.
KENDALL.
No. 1129 EDA 2008.
Superior Court of Pennsylvania.
January 12, 2009.
Quashed.
| {
"pile_set_name": "FreeLaw"
} |
36 F.3d 1439
UNITED STATES of America, Plaintiff-Appellant,v.Raymond D. CHEELY, Jr.; Douglas P. Gustafson, Defendants-Appellees.
Nos. 92-30257, 92-30504.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted August 6, 1993.Decided April 11, 1994.Amended Oct. 3, 1994.
Wevley William Shea, U.S. Atty., District of Alaska, Anchorage, AK, James S. Reynolds, Dept. of Justice, John F. De Pue, Dept. of Justice, Mark H. Bonner, Asst. U.S. Atty., Mary Incontro, Tammy Haimov, Dept. of Justice, Washington, DC, for plaintiff-appellant.
Nancy Shaw, Federal Public Defender, Anchorage, AK, Richard Kammen, McClure, McClure & Kammen, Indianapolis, IN, James H. McComas, Schleuss & McComas, Richard H. Friedman, Friedman & Rubin, Rich Curtner, Asst. Public Defender, Anchorage, AK, for defendants-appellees.
Appeal from the United States District Court for the District of Alaska.
Before: SCHROEDER, FLETCHER, and ALARCON, Circuit Judges.
1
Opinion by Judge FLETCHER; Concurrence and Dissent by Judge ALARCON.
ORDER
2
Although no petition for rehearing was filed, and no request for en banc rehearing was made by the parties, a member of the court requested en banc rehearing of this appeal. The request was put to a vote of all active non-recused judges. The request did not secure the required majority vote of the active non-recused members of the court.
3
The panel, of its own motion, called for supplemental briefs on the possible effect of the Supreme Court's decision in Davis v. United States, --- U.S. ----, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) on its affirmance of the district court order to suppress Cheely's statements to postal inspectors. It now, by this order, reaffirms its holding but modifies the opinion, United States v. Cheely, 21 F.3d 914 (9th Cir.1994):
4
No petition for rehearing will be entertained. The mandate shall issue forthwith.OPINION
FLETCHER, Circuit Judge:
5
The government brings an interlocutory appeal to challenge the district court's pretrial rulings that (1) Cheely cannot be subjected to the death penalty, and (2) Cheely's statements to investigating postal inspectors are inadmissible at trial because his Miranda rights were violated. We affirm.
PROCEDURAL HISTORY
6
Before the commencement of trial, the district court directed the parties to address the applicability of the capital punishment provisions of the relevant federal statutes. It did this because several procedures different from those for an ordinary criminal trial would be implemented were this a death penalty case. For example, Cheely would be entitled to extra peremptory challenges if the offenses for which he is charged are "punishable by death," Fed.R.Crim.P. 24(b), and he would also be entitled to have two attorneys represent him. 18 U.S.C. Sec. 3005 (1988). The government, on the other hand, would be allowed to seek a "death qualified" jury, one free of jurors so absolutely opposed to the death penalty that they would not impose it regardless of the strength of the government's case. Cf. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).
7
The district court had jurisdiction under 18 U.S.C. Sec. 3231 (1988). It decided that the capital sentencing provisions under which Cheely was charged were unconstitutional, and that Cheely's statements to the postal inspectors should be suppressed. We have jurisdiction to hear the government's timely filed appeal of both issues. The provisions of 18 U.S.C. Sec. 3731 (1988) are "intended to remove all statutory barriers to Government appeals and to allow appeals whenever the Constitution would permit." United States v. Woolard, 981 F.2d 756, 757 (5th Cir.) (finding jurisdiction under Sec. 3731 to review district court's order striking death as a permissible punishment for violation of 18 U.S.C. Secs. 2, 1111, 1114), reh'g en banc denied, 990 F.2d 819 (5th Cir.1993);1 United States v. Dominguez-Villa, 954 F.2d 562, 564 (9th Cir.1992) (government may appeal adverse ruling on suppression motion).
DISCUSSION
I. Challenge to the Death Penalty
A. Factual Background
8
In 1991, Cheely and Gustafson2 were convicted of Jeffrey Cain's murder. George Kerr, a key witness at the trial, testified that he was in the car with Cheely and Gustafson when they shot and killed Cain. The indictment on which Cheely and Gustafson currently await trial alleges that, after their convictions for the Cain homicide, they devised plans to kill Kerr and others who participated in the trial. From behind bars, Cheely and Gustafson allegedly instructed Gustafson's older brother and sister in the construction of a mail bomb, which they directed be mailed to Kerr's Post Office box in Chugiak, Alaska. Kerr's parents, who were collecting his mail while he was out of the state, opened the box containing the mail bomb. David Kerr, George's father, was killed. Michelle Kerr, George's mother, was seriously injured. Cheely, Gustafson, and Gustafson's siblings were subsequently indicted for, among other things, the mail bomb murder of David Kerr.
9
B. Constitutionality of Capital Sentencing Provisions
10
We first consider Cheely's constitutional challenge to the capital provisions under which he was charged, 18 U.S.C. Secs. 844(d) and 1716(a) (1988). A challenge to the constitutionality of capital statutes presents a question of law; we review de novo the district court's resolution of this question. McKenzie v. Risley, 842 F.2d 1525, 1538 (9th Cir.) (en banc), cert. denied, 488 U.S. 901, 109 S.Ct. 250, 102 L.Ed.2d 239 (1988).
1. Death Penalty Jurisprudence
11
Prior to Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), "sentencing juries had almost complete discretion in determining whether a given defendant would be sentenced to death." Johnson v. Texas, --- U.S. ----, ----, 113 S.Ct. 2658, 2664, 125 L.Ed.2d 290 (1993).3 Furman held that a death sentence imposed by a jury exercising unbridled discretion as to whether death should be the penalty constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Capital punishment is unconstitutional when it is "wantonly and ... freakishly imposed," Furman, 408 U.S. at 310, 92 S.Ct. at 2763 (Stewart, J., concurring), pursuant to statutes that provide "no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not." Id. at 313, 92 S.Ct. at 2764 (White, J., concurring); see also Gregg v. Georgia, 428 U.S. 153, 196 n. 47, 96 S.Ct. 2909, 2936 n. 47, 49 L.Ed.2d 859 (1976) ("[W]here the ultimate punishment of death is at issue a system of standardless jury discretion violates the Eighth and Fourteenth Amendments.") (Stewart, Powell, and Stevens, JJ); Woodson v. North Carolina, 428 U.S. 280, 302, 96 S.Ct. 2978, 2990, 49 L.Ed.2d 944 (1976) ("Central to the limited holding in Furman was the conviction that the vesting of standardless sentencing power in the jury violated the Eighth and Fourteenth Amendments.") (Stewart, Powell, and Stevens, JJ, concurring).
12
The post-Furman death penalty jurisprudential framework can be quickly sketched. See Blystone v. Pennsylvania, 494 U.S. 299, 308-09, 110 S.Ct. 1078, 1084, 108 L.Ed.2d 255 (1990) (quoting McCleskey v. Kemp, 481 U.S. 279, 305-06, 107 S.Ct. 1756, 1774, 95 L.Ed.2d 262 (1987)). Beyond the threshold requirement that death must be a penalty proportionate to the crime for which the defendant is convicted,4 a statute that includes capital punishment as a possible penalty (1) must "genuinely narrow the class of persons eligible for the death penalty and ... reasonably justify the imposition of a more severe sentence on the defendant | {
"pile_set_name": "FreeLaw"
} |
537 U.S. 1095
OLSONv.UNITED STATES.
No. 02-7377.
Supreme Court of United States.
December 16, 2002.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT.
2
C. A. 11th Cir. Certiorari denied. Reported below: 44 Fed. Appx. 945.
| {
"pile_set_name": "FreeLaw"
} |
810 F.2d 195
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.In re Raymond WAGSTAFF, Petitioner.
No. 86-8010.
United States Court of Appeals, Fourth Circuit.
Submitted Dec. 24, 1986.Decided Jan. 21, 1987.
Before SPROUSE, ERVIN and CHAPMAN, Circuit Judges.
Raymond Wagstaff, petitioner pro se.
PER CURIAM:
1
Raymond Wagstaff applies to this Court for a writ of mandamus, claiming that he filed a criminal complaint in the district court against Special Agent Roger Kuhleman for allegedly committing perjury at the grand jury proceeding and detention hearing preceding his trial and conviction for bank robbery in criminal case No. Y-86-015, in stating that a positive photographic identification had been made; that Magistrate Paul Rosenberg, the presiding official at the detention hearing, knew or should have known that Kuhleman perjured himself; and that the magistrate failed to act on his complaint against Kuhleman. Wagstaff asks this Court to "order the U.S. Magistrate Paul Rosenberg to perform his duty under the Federal Rules of Procedures (sic) Rules 3, 4, 5, 6 and 7", and "to refrain from conduct reviewable under Title 28 U.S.C.A. 372."
2
On June 25, 1986, the district court entered a memorandum and order in No. Y-86-015, in which it fully explored the question of whether improprieties occurred before the magistrate. The district court concluded that there was no support for Wagstaff's contention that Kuhleman gave perjured testimony, and that contention is now before us on appeal in No. 86-5585.
3
We find that issuance of the writ is inappropriate. Writs of mandamus are extraordinary writs, and the power to issue them is sparingly exercised. Kerr v. United States District Court, 426 U.S. 394 (1976).
4
Therefore, we grant leave to proceed in forma pauperis and deny the application for a writ of mandamus.
5
DENIED.
| {
"pile_set_name": "FreeLaw"
} |
423 S.W.2d 140 (1967)
Charles D. CALDWELL, Appellant,
v.
Cordia G. CALDWELL, Appellee.
No. 4666.
Court of Civil Appeals of Texas. Waco.
December 28, 1967.
Rehearing Denied January 18, 1968.
*141 Clair F. Achenbach, Dallas, for appellant.
Burt Barr, Dallas, Robert Doss, Denison, for appellee.
OPINION
McDONALD, Chief Justice.
This is an appeal by defendant Charles D. Caldwell from a judgment awarding plaintiff Cordia G. Caldwell a divorce, dividing property, and awarding plaintiff's attorneys a fee from community property of the parties.
Plaintiff, Cordia Caldwell, filed suit for divorce against defendant Charles Caldwell, alleging "defendant several years prior to said separation commenced a course of harsh, cruel and tyrannical treatment toward the plaintiff; that he was always continually fussing and nagging at the plaintiff; that such conduct on the part of the defendant toward her renders their further living together insupportable." Plaintiff prayed for divorce, property division, and attorneys' fees.
Defendant excepted to the allegations of cruel treatment as vague and indefinite; but did not bring same to the attention of the trial court or secure an order overruling same, and did not object to any testimony offered on the issue of cruel treatment.
Trial was to the court without a jury, which, after hearing, granted plaintiff divorce; awarded plaintiff's attorneys $8500. attorneys' fee out of community funds of the parties; awarded plaintiff her separate properties; awarded defendant $8,250.; a 1962 Dodge automobile, lawnmower, motorboat, $1,000. insurance policy on defendant's life, other insurance policies and cemetery lot; and awarded plaintiff all other community property of the parties.
Defendant appeals on 4 points, contending the trial court erred:
1) In granting divorce "for the reason that plaintiff's petition did not properly allege any ground upon which a divorce could be granted, against which defendant specially excepted."
2) In granting a divorce "for the reason there was no evidence, or insufficient *142 evidence, to support such decree."
3) "In failing to make a particular finding of what was community property and what was separate property, thereby perpetrating a severe injustice upon defendant under the judgment."
4) In awarding plaintiff's attorneys "the sum of $8500. payable out of the community property," without a separate finding of the value of the community property.
Defendant's 1st contention is that plaintiff did not properly allege any ground upon which divorce could be granted. Plaintiff alleged "harsh, cruel and tyrannical treatment * * * which renders their further living together insupportable." While defendant excepted to the foregoing as vague and indefinite, he did not preserve the point by getting a ruling on his exception, and thereafter objecting to testimony.
Defendant's right to object to the pleading has therefore been waived; and the pleading is sufficient to support an action for divorce on the ground of cruel treatment. McCullough v. McCullough, 120 Tex. 209, 36 S.W.2d 459.
Defendant's 2nd contention is that there is no evidence, or insufficient evidence, to support a decree of divorce.
The record reflects the plaintiff is 83 years of age; the defendant some 88 years of age; and they had been married some 17 years. Plaintiff owned considerable property; defendant had none at the time of the marriage. Almost all income was from the separate property of plaintiff. Plaintiff is crippled and immobilized since 1943. She testified defendant was nagging her to give him all her property and was trying to take everything away from her, and that this caused her anxiety and unrest; that it was impossible for her to live with defendant as husband and wife. Defendant left plaintiff on 2 occasions and moved out; told others that plaintiff had lost her mind; and tried to get the banker to change plaintiff's bank account to defendant's name.
In a divorce case the question of whether further living together by the parties is insupportable is a fact question to be determined by the trial court, under all facts and circumstances in the case, and much latitude is allowed a court in determining such question. Mobley v. Mobley (nwh) Tex.Civ.App., 263 S.W.2d 794. From the record, we cannot say the trial judge abused his discretion in granting the divorce; or that there is no evidence or insufficient evidence to sustain the judgment.
Defendant's 3rd contention is that the trial court erred in not making findings as to what was community property and separate property. Defendant has waived such point by not making demand for such findings by the trial court under Rule 297, Texas Rules of Civil Procedure.
As to the trial court's division of the community property, Article 4638, Vernon's Ann.Tex.St. prescribes that the trial court shall divide the estate of the parties in such a way as the court shall deem just and right. We are unable to say from this record that the trial court acted arbitrarily, or that there is shown any abuse of discretion. See: Grant v. Grant, (nre) Tex. Civ.App., 351 S.W.2d 897; Hailey v. Hailey, 160 Tex. 372, 331 S.W.2d 299.
Defendant's 4th contention complains of the award of attorneys' fees to plaintiff's attorneys out of the community property, "without a separate finding of the value of the community property." Defendant requested no findings of the trial court, and cannot be heard to complain of such for the first time on appeal. Rules 296, 297, T.R.C.P.
All defendant's points and contentions are overruled.
Affirmed.
| {
"pile_set_name": "FreeLaw"
} |
Citation Nr: 1641945
Decision Date: 10/31/16 Archive Date: 11/08/16
DOCKET NO. 05-25 118 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania
THE ISSUES
1. Entitlement to a higher rating for lumbar spine intervertebral disc syndrome, currently rated as 10 percent disabling from August 2, 2003 to February 3, 2014 and as 20 percent disabling from the latter date.
2. Entitlement to a higher rating for right lower extremity radiculopathy, currently unrated prior to February 3, 2014 and rated as 10 percent disabling from that date.
3. Entitlement to a higher rating for left lower extremity radiculopathy, currently unrated prior to February 3, 2014 and rated as 10 percent disabling from that date.
4. Entitlement to a TDIU due to lumbar spine intervertebral disc syndrome with right and left lower extremity radiculopathy.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
C. Lawson, Counsel
INTRODUCTION
The Veteran had active military service from July 1990 to August 2003.
This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In that decision, service connection was established for the low back disability, and a 10 percent rating was assigned, effective from August 2, 2003. In November 2015, the rating for low back disability was increased to 20 percent, effective from February 3, 2014, and 10 percent ratings were assigned for right and left lower extremity radiculopathy, each from February 3, 2014. The lower extremity radiculopathies are manifestations of the Veteran's service-connected back disability. When the Veteran disagreed with the amount of compensation awarded for back, he did not limit his appeal to one manifestation but rather was seeking the highest rating or ratings available for disability due to his service-connected back disability. See AB v Brown, 6 Vet. App. 35 (1993). Moreover, regulation provides that VA is to evaluate any neurologic abnormalities associated with a spine disability under an appropriate diagnostic code. 38 CFR § 4 71a, Note (1) (2015). Thus, when the Veteran appealed the rating assigned for his back disability, his appeal encompassed ratings for all manifestations of the condition. The award of the ratings for lower extremity radiculopathy in the November 2015 decision could not limit the Board's jurisdiction to less than it had acquired via the notice of disagreement filed in connection with rating decision on appeal. Thus, the issues before the Board are as shown on the title page.
In November 2007, the Board remanded the case primarily for readjudication of the Veteran's claim with consideration under the spine rating criteria effective prior to September 26, 2003, as the Veteran had not been provided with the old rating criteria, nor had the RO considered his claim under the old regulations.
In June 2011, the Board again remanded, noting that following its November 2007 remand, the instructions to readjudicate the claim under the old regulations had not been followed. In August 2016, after the case was returned to the Board, the representative waived initial RO consideration of additional relevant evidence received on appeal.
A July 2016 VA examination report raises the matter of entitlement to a total rating for compensation based upon individual unemployability (TDIU) due to multiple service-connected disabilities, some of which are not currently at issue. Unlike in an appeal per Rice v. Shinseki, 22 Vet. App. 447 (2009), where a claim of TDIU rests solely on the disability for which an increased rating is being sought, the Board does not have jurisdiction of this matter. Instead, it is referred to the RO for appropriate action. The Board does have jurisdiction over the matter of entitlement to a TDIU due to the Veteran's service-connected lumbar spine intervertebral disc syndrome with right and left lower extremity radiculopathy, pursuant to Rice, and is rendering a decision on that matter below.
In January 2016, the RO denied increased ratings for left and right knee disabilities, and proposed to reduce the rating for asthma. In March 2016, the Veteran's representative wrote indicating that it disagreed with a November 2015 decision denying an earlier effective date for asthma, an increased rating and earlier effective date for a low back disability rating, service connection for posttraumatic stress disorder (PTSD), recoupment of disability severance pay, and payment of attorneys fees. However, the RO had not denied service connection for PTSD within a year prior to that letter, and so that correspondence was not a timely notice of disagreement to an RO decision and that decision is not on appeal. The RO advised the Veteran in February 2016 that records did not show that the issue of service connection for PTSD was on appeal. Instead, the RO had notified the Veteran in June 2014 concerning a claim for service connection for PTSD, and he did not submit a notice of disagreement within 1 year of the decision notification date. Also, in February 2016, the RO returned to the Veteran all attorneys fees which it previously withheld from him in December 2015 (in the amount of $1997.76), and so the matter of payment of attorneys fees is not on appeal.
The RO had made a recoupment of disability severance pay from the Veteran in February 2016, and notified him of that action and of his appeal rights at the time. Subsequent correspondence from the representative (in March 2016) was accepted as a notice of disagreement by the RO, and in April 2016, the RO advised the Veteran that it was going to try to resolve his disagreement through the post-decision review process, for which he had elected to have a decision review officer assigned to his case. The RO indicated that it would issue the Veteran a statement of the case if that review did not resolve his disagreement. As the RO is taking action on this issue which is necessary before any statement of the case which may be necessary is issued, remand for a statement of the case, per Manlincon v. West, 12 Vet. App. 238 (1999), is not warranted, as it could affect the pre-selected RO adjudication process.
The issue of increased compensation for low back disability, which covers the concerns encompassed by the representative in March 2016 (the effective date for a staged increase in compensation for disabilities at issue), is already on appeal, as part and parcel of the Veteran's appeal for a higher rating for his service-connected low back disability, and the Board is rendering a decision on it at this time.
In April 2016, the RO reduced the rating for asthma from 100 percent to 30 percent and terminated special monthly compensation from the July 1, 2016 date the asthma rating was reduced. The Veteran had previously in March 2016 attempted to disagree with the January 2016 proposed reduction for asthma. However, a proposed rating decision such as the January 2016 proposed rating decision is not appealable. Moreover, the Veteran has not filed a notice of disagreement with the actual April 2016 rating reduction made by the RO for asthma or the termination of special monthly compensation. This is necessary for him to commence an appeal concerning those decisions, and he still has time to do this if he would like to do so.
FINDINGS OF FACT
1. Prior to February 3, 2014, the Veteran did not have moderate limitation of motion of his lumbar spine; nor did he have forward flexion of his thoracolumbar spine not greater than 60 degrees; or the combined range of motion of his thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.
2. From February 3, 2014, forward flexion of the thoracolumbar spine was limited to 30 degrees; unfavorable ankylosis of the entire thoracolumbar spine was not shown.
3. Prior to February 3, 2014, the Veteran did not have lumbosacral strain with muscle spasm on extreme forward bending, and unilateral loss of lateral spine motion in a standing position.
4. From February 3, 2014, the Veteran does not have severe lumbosacral strain, with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion.
5. Prior to February 3, 2014, the Veteran did not have moderate lumbar spine intervertebral disc syndrome, with recurring attacks.
6. From February 3, 2014, the Veteran does not have severe lumbar spine intervertebral disc syndrome, with recurring attacks, with intermittent relief.
7. Prior to February 3, 2014, the Veteran did not have incapacitating episodes of lumbar spine intervertebral disc syndrome having a total duration of 2 weeks or more during the past 12 months; and from February 3, 2014, he has not had them for a total duration of 4 weeks or more during the past 12 months.
8. Since August 2, 2003, the Veteran has had mild, but not moderate, right lower extremity radiculopathy.
9. Prior to June 19, 2009, the Veteran does not have mild left lower extremity radicul | {
"pile_set_name": "FreeLaw"
} |
NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Respondent,
v.
BRENT ALEXANDER HARGOUS, Petitioner.
No. 1 CA-CR 15-0454 PRPC
FILED 5-4-2017
Petition for Review from the Superior Court in Apache County
Nos. S0100CR201100146
S0100CR201100268
S0100CR201100269
S0100CR201200104
The Honorable Michael P. Roca, Judge Pro Tem, Retired
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Apache County Attorney’s Office, St. Johns
By Michael B. Whiting
Counsel for Respondent
Emily Danies, Tucson
Counsel for Petitioner
STATE v. HARGOUS
Decision of the Court
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Paul J. McMurdie joined.
T H O M P S O N, Judge,:
¶1 Brent Alexander Hargous petitions this court for review from
the dismissal of his petition for post-conviction relief. We have considered
the petition for review and, for the reasons stated, grant review but deny
relief.
¶2 The state charged Hargous with multiple crimes in four
different cases. After the superior court consolidated the cases, Hargous
entered into plea agreements with the state. The court placed him on four
years of intensive probation, a condition of which required Hargous to
actively participate in an inpatient drug rehabilitation program.
¶3 The state subsequently petitioned the court to revoke
Hargous’s probation based on allegations that he failed to seek drug
treatment. The court held a hearing and found the state proved the
probation violation. Consequently, the court revoked probation and
sentenced Hargous to consecutive prison terms totaling eighteen years. On
direct appeal, this court affirmed.
¶4 Hargous subsequently petitioned the superior court for relief
pursuant to Arizona Rule of Criminal Procedure 32, arguing newly
discovered evidence entitled him to be resentenced. Specifically, Hargous
explained that, shortly after he began serving his prison sentence, he was
diagnosed as having a psychiatric disorder. Hargous provided a copy of a
letter by a psychiatrist who, after reviewing Hargous’s mental health
records from the Department of Corrections, opined that “it’s extremely
likely . . . [Hargous’s] psychiatric diagnoses were present at the time of
sentencing . . ..” The psychiatrist also stated “the diagnosis . . . was most
likely present . . . when Mr. Hargous committed certain crimes.” According
to Hargous, he probably would have received mitigated or concurrent
sentences had the trial court known at sentencing of his mental illness.
2
STATE v. HARGOUS
Decision of the Court
¶5 The superior court noted that the petition did not comply
with Rule 32.5, which requires a petition to be accompanied by the
defendant’s declaration “stating under penalty of perjury that the
information contained in the petition is true to the best of the defendant’s
knowledge and belief.” The court gave Hargous sixty days to amend his
petition to comply with Rule 32.5.
¶6 Almost two months after the court-ordered deadline,
Hargous’s counsel filed a declaration avowing that the information
contained in the petition was true to the best of Hargous’s and her
knowledge and belief. The court dismissed the petition because the
provided declaration did not remedy the defect; namely, Hargous’s
attorney, not Hargous himself, made the declaration. The court also found
the petition failed to present a colorable claim. Hargous unsuccessfully
moved for reconsideration before requesting another sixty-day extension to
file a Rule 32.5 compliant declaration. The court denied Hargous’s request,
and this timely petition for review followed.
¶7 Hargous argues the court erred in determining he failed to
present a colorable claim. Specifically, he contends the psychiatric
diagnosis made after he was sentenced constituted newly discovered
evidence requiring the superior court to resentence him. Hargous also
contends the superior court should have granted him leave to file a delayed
Rule 32.5 declaration.
¶8 “We will not disturb a trial court’s ruling on a petition for
post-conviction relief absent a clear abuse of discretion.” State v. Swoopes,
216 Ariz. 390, 393, ¶ 4, 166 P.3d 945, 948 (App. 2007). We are obliged to
uphold the trial court’s ruling if the result is legally correct for any reason.
State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984); State v. Cantu,
116 Ariz. 356, 358, 569 P.2d 298, 300 (1977).
¶9 To present a colorable claim of newly-discovered evidence,
the evidence must appear on its face to have existed at the time of trial (or
in this case, at sentencing) but be discovered thereafter. State v. Bilke, 162
Ariz. 51, 52, 781 P.2d 28, 29 (1989). In Bilke, our supreme court addressed a
claim of newly discovered evidence relating to a defendant’s diagnosis of
post-traumatic stress disorder (PTSD). Id. at 53, 781 P.2d at 30. There, the
Court determined the defendant satisfied the foregoing requirement
because, “while defendant may have been aware that his mental condition
was not stable, he was not aware that he suffered from PTSD.” Id. at 53, 781
P.2d at 30. The reason for the defendant’s lack of knowledge regarding his
3
STATE v. HARGOUS
Decision of the Court
PTSD, the court noted, was that PTSD “was not a recognized mental
condition at the time of his trial.” Id.
¶10 Hargous does not contend he was diagnosed with a mental
illness that was not a recognized mental condition at the time he was
sentenced. Nor does Hargous argue his mental illness was otherwise not
subject to diagnosis at that time. He merely asserts that, although he was
aware at the time of sentencing that he suffered a mental illness, the specific
disorder was not diagnosed until after he started serving his sentence.
Thus, unlike the petitioner in Bilke, Hargous’s post-trial diagnoses did not
amount to newly discovered evidence. As a result, Hargous did not present
a colorable claim, and the superior court acted within its discretion by
dismissing the petition for post-conviction relief.1
¶11 For the foregoing reasons, we grant review but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
1 Based on Hargous’s failure to raise a colorable claim of newly
discovered evidence, addressing the propriety of the superior court’s
decision denying Hargous leave to file a declaration in compliance with
Rule 32.5 is unnecessary.
4
| {
"pile_set_name": "FreeLaw"
} |
409 So.2d 876 (1981)
Henry T. JACQUES
v.
STATE.
4 Div. 837.
Court of Criminal Appeals of Alabama.
May 5, 1981.
Rehearing Denied June 23, 1981.
*878 Jerry E. Stokes, Andalusia, for appellant.
Charles A. Graddick, Atty. Gen. and J. Michael Horsley, Asst. Atty. Gen., for appellee.
LEIGH M. CLARK, Retired Circuit Judge.
This is an appeal from the denial of appellant's petition for a writ of error coram nobis.
The target of the petition is the judgment of conviction and sentence that was affirmed in Jacques v. State, Ala.Cr.App., 376 So.2d 821 (1979), wherein defendant was convicted of a crime of escape defined and proscribed by Code 1975, § 13-5-65, and sentenced to imprisonment for thirty years.
The petition was a pro se petition in excellent handwriting, purportedly that of the petitioner, in which the petitioner made an "Affidavit of Poverty," in which he stated that he was "unable to ... employ an attorney." The attorney who represented him on the trial of the case and on appeal filed a motion to withdraw as attorney, which motion was granted, and a new experienced attorney was appointed to represent him, which he did on the hearing of the petition and has continued to do so on appeal.[1]
The first issue raised by appellant's attorney is as to a matter set forth in the petition, in somewhat of a discursive manner, to the effect that he was convicted of a felony and sentenced accordingly, but that the indictment charged a misdemeanor. His attorney captions the proposition:
"Whether the judgment and sentence imposed upon the appellant was responsive to the offense charged."
The question has been a troublesome one for many years, as is evidenced by cases cited by petitioner in his petition, and it is argued by petitioner's attorney as well as it can be argued on behalf of petitioner. We agree with the following statement of appellant's counsel:
"Alabama has [it had at the time of the alleged offense] three escape statutes material to this inquiry. Sec. 13-5-63 of the Alabama Code provides punishment for escape by a convict sentenced to imprisonment in the county jail or to hard labor for the county who escapes from such confinement before the expiration of his sentence. Sec. 13-5-65 provides punishment for any convict who escapes or attempts to escape from the penitentiary, or from any person or guard having him in charge under authority of law, either within or outside the walls of the penitentiary, before the expiration of the term for which the convict has been sentenced. Sec. 13-5-68 provides punishment of not more than six months imprisonment for any prisoner who escapes from the lawful custody of any law officer."
The issue now presented is related to, but not exactly the same as, the issue as to a material variance between the indictment and the proof that was raised and decided adversely to appellant in Jacques v. State, supra. Now it appears that appellant takes the position that the indictment does not charge a violation of § 13-5-65 but at the most charges a violation of § 13-5-68. He is mistaken, for the reason the indictment expressly charges that defendant was "a convict" and that he did wilfully and unlawfully escape from a place where a person "had him in charge under authority of law, before the expiration of the term for which he was sentenced."
*879 This language is equivalent to an alternative phrase of § 13-5-65, which provides:
"Any convict who escapes or attempts to escape from the penitentiary or from any person or guard having him in charge under authority of law, either within or outside the walls of the penitentiary, before the expiration of the term for which he was sentenced, shall, on conviction, be imprisoned for an additional term of not less than one year." (Emphasis supplied).
Some confusion could conceivably result from the failure of an indictment to set forth in the most unambiguous language possible an offense chargeable under one of the three sections as distinguished from an offense chargeable under either of the other two, but we think that it cannot be reasonably held that defendant was not sufficiently apprised of the charge against him to enable him to determine that it was based on § 13-5-65 and not under either of the other two sections. This is especially true in light of the fact that, according to the undisputed evidence, and necessarily to the knowledge of defendant, he had been convicted theretofore and sentenced to the penitentiary for burglary and grand larceny, each a felony, which could not have been embraced as a basis for an indictment pursuant to § 13-5-63. Clearly also it is not embraced as a basis for an indictment under § 13-5-68, which proscribes, according to its caption, "Escapes not otherwise provided for," which is corroborated by the text of § 13-5-68.
It is not for us to attempt to explain or justify the great difference between maximum punishment prescribed for a violation of § 13-5-65 and the maximum prescribed by § 13-5-63 and § 13-5-68. The maximum, though not expressly stated in § 13-5-65 is a "term up to and including life." Weaver v. State, 44 Ala.App. 268, 207 So.2d 134 (1968); Kelly v. State, 44 Ala.App. 307, 208 So.2d 217 (1968). It is to be noted that the new criminal code, Code of Alabama 1975, Title 13A, effective as to crimes committed after January 1, 1980, has made considerable change in the punishment prescribed for the various kinds of escapes, and perhaps commendable intelligence as to changes made by the new criminal code has encouraged defendant in his apparent belief that the judgment of conviction and sentence was not in conformity with the indictment and with the law applicable to the case against him.
One ground of the petition for writ of error coram nobis alleged that "during the whole trial, petitioner was compelled to wear prison clothing before a jury." Substantially the same ground is asserted as a basis for a reversal of the court's order denying the petition. During the hearing on the petition, and after there was evidence to the effect that defendant was wearing prison clothing, "blue denim clothing like a blue denim shirt with dark denim pants," the court stated:
"Mr. Stokes, I can tell you this of my own personal knowledge about the prison clothes. Mr. Bill Law, the probation officer, told me that the Baptist Church had clothing that could be made available to Defendants in these cases. And I don't know what officer it was, but I told him to find out if Mr. Jacques wanted some clothes from down there and he said, no, he wanted to be tried in his prison clothes, is the word that came back to me about it. I made an effort to see that he got clothing other than the prison clothing."
The petitioner testified that he did not recall having any discussion with the court or his attorney with reference to his clothing and that he was not advised that he did not have to proceed to trial in the clothing that he had on. He said:
"Q. Your testimony under oath is, that nobody ever told you that you had access to any other clothes?
"A. Yes, sir.
"Q. And you sat through your trial in the clothes that you had issued to you in Kilby prison, is that right?
"A. Yes, sir."
In Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), reh. den. 426 U.S. 954, 96 S.Ct. 3182, 49 L.Ed.2d 1194 (1976), it was held that a state *880 cannot, consistent with the Fourteenth Amendment due process or equal protection requirements, compel an accused to stand trial before a jury while clothed in identifiable prison clothing, but that the failure to make an objection to the court as to being tried in such clothing, for whatever reason, was sufficient to negate the presence of compulsion necessary to establish a constitutional violation. The instant case presents an even more favorable situation for the application of that which was held in Estelle v. Williams, for the reason that all of the jurors knew from the evidence presented to them that defendant was at the time of his trial a convict, serving time at the time of the trial for a previous felony. His prison attire revealed nothing to the jury as to which the jury was not fully informed by the evidence. The defendant was not prejudiced by any failure on the part of the State to provide him with other clothes. In saying this, we do not recommend that even in such a case a convict should not be dressed with appropriate clothes throughout his trial, clothing distinctly different from his prison clothes. He should be if such is his desire, as apparently he would have been, except for some apparent or possible misunderstanding.
One of the grounds of the pro se petition for writ of error coram nobis states:
"Petitioner was entitled to a court appointed attorney who would aid him and not the state, and an attorney who had an interest and not a conflict of interest. Three other codefendants only got 90 days for alleged escape, yet court appointed attorney wanted petitioner to plea bargain for thirty years. Court appointed attorney's wife, a lawyer also on the same case, had another codefendant testify against petitioner to get 90 days in jail."
On the hearing of the petition, the attorney appointed to represent defendant on the trial and who | {
"pile_set_name": "FreeLaw"
} |
964 A.2d 1 (2009)
COM.
v.
DECK.
No. 512 MAL (2008).
Supreme Court of Pennsylvania.
January 16, 2009.
Disposition of petition for allowance of appeal. Denied.
| {
"pile_set_name": "FreeLaw"
} |
538 So.2d 1377 (1989)
Alphonzo McCREARY, Appellant,
v.
STATE of Florida, Appellee.
No. 88-777.
District Court of Appeal of Florida, First District.
March 2, 1989.
Rehearing Denied March 31, 1989.
Michael E. Allen, Public Defender, and Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., and Carolyn A. Mosley, Asst. Atty. Gen., Tallahassee, for appellee.
ZEHMER, Judge.
Alphonzo McCreary appeals his conviction of unlawful possession of drug paraphernalia *1378 on the ground that the trial court erred in denying his motion to suppress evidence seized from him at the time of his arrest. We reverse.
The evidence in this case established that on September 13, 1987, at approximately 5:00 p.m., Deputy Sheriffs Allen Barton and Kenneth Forrester of the Escambia County Sheriff's Department observed a vehicle bearing Texas license plates parked in front of a lounge in a predominantly black area of Pensacola that is known for drug-related crimes. A white male was sitting in the driver seat; appellant, a black male, was sitting in the front passenger seat; a white female was sitting between the driver and appellant; and a second black male was sitting in the back seat. Although the officers observed no illegal activity, they parked their patrol car behind the subject car. Officer Barton then approached the driver and Officer Forrester approached the passenger's side of the vehicle. Officer Forrester asked appellant to get out of the car and asked him his name. Appellant gave him a false name. Forrester got the other persons' names, went back to the patrol car, and ran a warrant check on them, which came up negative. Meanwhile, Officer Barton talked to the driver, who had gotten out of the car. After the negative warrant check, Barton returned to look around the car and observed some needles on the floorboard of the right passenger side of the vehicle. Forrester and Barton then put the driver in the patrol car, and the driver told them that he was trying to buy narcotics from appellant and that appellant had the narcotics in his shoe. The driver said his wife had a serious narcotics habit and he was trying to purchase either heroin or cocaine for her. The officers then asked appellant if they could check his shoe. While appellant was taking off one of his shoes, Officer Barton noticed that appellant's hand was on the side of his foot and it appeared that he was trying to break up something. Barton reached down and grabbed appellant's hand, and at that point appellant shoved Barton to the ground and ran to the rear of the lounge. At that time, Barton's K-9 dog jumped out of the patrol car and pursued appellant. The dog caught appellant and the officers brought appellant under control and handcuffed him. Officer Forrester then looked in appellant's other shoe and found a small red balloon and two or three red capsules containing a white powdery substance. The lab report on this substance indicated that it was not any type of drug.
The State charged appellant with unlawful possession of drug paraphernalia, along with other charges not pertinent to this appeal, and appellant filed a motion to suppress the seized evidence. After the court denied the motion, appellant entered a plea of no contest, reserving the right to appeal this denial, and the court adjudicated him guilty of unlawful possession of drug paraphernalia. Appellant argues on appeal that the court erred in denying his motion to suppress because the officers did not have the reasonable suspicion required for the detention to be constitutional.
We find that the officers' actions of parking their patrol car behind the vehicle in which appellant was sitting, ordering the occupants out of the car, and asking their identities, constituted an investigatory stop. See Currens v. State, 363 So.2d 1116 (Fla. 4th DCA 1978) (officer conducted investigatory stop where he observed a legally parked vehicle, stationed himself where he could observe the car for a few minutes, saw no unusual activity, pulled his motorcycle up to and adjacent with the vehicle, noticed the defendant make a quick motion with his hand between his legs, and then ordered the defendant out of the vehicle). To be valid, the stop must have been predicated on a founded or reasonable suspicion requiring further investigation to determine whether the vehicle's occupants committed, were committing, or were about to commit a crime. McCloud v. State, 491 So.2d 1164 (Fla. 2d DCA 1986). See § 901.151, Florida Statutes (1987).
In determining whether sufficient evidence to support a founded suspicion exists *1379 at the time of an investigatory stop, the court should consider all the facts that were known to the officers prior to the stop. Adams v. State, 523 So.2d 190 (Fla. 1st DCA 1988); State v. Lewis, 406 So.2d 79 (Fla. 2d DCA 1981). Here, Officer Barton testified that the "sum total of probable cause ... to approach the car" was that the car contained two blacks and two whites, bore out-of-state tags, and was parked in an area known for drug activity.
Mere presence in a predominantly black, high-crime area is not a sufficient basis upon which to justify a stop. Bartlett v. State, 508 So.2d 567 (Fla. 2d DCA 1987); Cobb v. State, 511 So.2d 698 (Fla. 3d DCA 1987). Furthermore, the fact that an officer's suspicion of criminal activity is based in part on the fact that the car in which the defendant was riding contained a racially-mixed group of people does not justify an investigatory stop. Spann v. State, 529 So.2d 825 (Fla. 4th DCA 1988).[1] Accordingly, the facts of this case, even when taken together as viewed by experienced officers, were not sufficient to justify the investigatory stop, and the lower court erred in denying appellant's motion to suppress. The conviction is REVERSED and the case REMANDED with directions to discharge the defendant.
SHIVERS and BARFIELD, JJ., concur.
NOTES
[1] In Spann, the officer noticed a vehicle containing a white female, white male, and black male stop in a black neighborhood, the driver pulled off the pavement onto the shoulder of the road and turned the headlights off, the black male exited car, walked down the street, entered a restaurant and returned to the car. The officer testified that he had seen other whites using black people to make drug purchases for them so they would not get "ripped off," and that he believed that to be the situation in Spann. The fourth district court held that these observations, even in light of the officer's experience and knowledge, were insufficient to constitute a founded suspicion that the defendant had committed, was committing, or was about to commit a crime justifying an investigatory stop.
| {
"pile_set_name": "FreeLaw"
} |
70 F.3d 539
26 Envtl. L. Rep. 20,232, 95 Cal. Daily Op.Serv. 8761,95 Daily Journal D.A.R. 15,182
Pietro PARRAVANO; Wayne Heikkila; Marguerite Dodgin; EarlCarpenter; David Bitts; Liz Henry; Norman L. De Vall;Pacific Coast Federation of Fishermen's Associations, Inc.;Humboldt Fishermens' Marketing Association; CaitoFisheries, Inc.; Golden Gate Fisherman's Association;Salmon Trollers Marketing Association, Plaintiffs-Appellants,v.Bruce BABBITT, Secretary of the United States Department ofInterior; Ron Brown, Secretary, United StatesDepartment of Commerce, Defendants-Appellees,andSue MASTEN, Intervenor-Appellee.
No. 94-16727.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Oct. 17, 1995.Decided Nov. 16, 1995.
James M. Johnson, Olympia, Washington, for plaintiffs-appellants.
Jacques B. Gelin, United States Department of Justice, Washington, DC, for defendants-appellees.
George Forman, Alexander & Karshmer, Berkeley, California, for intervenor-appellee.
Thomas F. Gede, Special Assistant Attorney General, Sacramento, California, for amicus States of California, Idaho, Nevada, North Dakota, Oklahoma, South Dakota and Vermont.
Thomas P. Schlosser, Morisset, Schlosser, Ayer & Jozwiak, Seattle, Washington, for amicus Hoopa Valley Tribe.
Appeal from the United States District Court for the Northern District of California.
Before: SKOPIL, PREGERSON, and FERNANDEZ, Circuit Judges.
PREGERSON, Circuit Judge:
1
Pietro Parravano, other commercial fishermen, and commercial fishing associations (collectively "Parravano") appeal the district court's order granting partial summary judgment in favor of defendants Interior Secretary Babbitt and Commerce Secretary Brown and dismissing the remainder of Parravano's claims.
2
In United States District Court, Parravano alleged that Secretary Brown violated the Magnuson Fishery Conservation and Management Act ("Magnuson Act"), 16 U.S.C. Sec. 1801 et seq., when he issued an emergency regulation that reduced the ocean harvest rate of Klamath River chinook for the fall 1993 season. The district court determined that executive orders issued in 1876 and 1891 and the 1988 Hoopa-Yurok Settlement Act, 25 U.S.C. Sec. 1300i et seq., vested the Hoopa Valley and Yurok Tribes (the "Tribes") with federally reserved fishing rights. The district court found that these fishing rights constituted "any other applicable law," 16 U.S.C. Sec. 1854(a)(1)(B), which the Secretary of Commerce could take into consideration when reviewing fishery management policies under the Magnuson Act. For this reason, the district court concluded that Secretary Brown did not violate the Magnuson Act when he issued emergency regulations for the fall 1993 ocean harvest.
3
Parravano also charged that Secretary Babbitt failed to comply with the Klamath River Basin Fishery Resources Restoration Act ("Klamath Act"), 16 U.S.C. Sec. 460ss, and the Trinity Basin Act ("Trinity Act"), Pub.L. No. 98-541, by failing to enforce limitations on Indian fishing in the Klamath River. The district court dismissed the claims against Secretary Babbitt, concluding that there was no basis for judicial review under the Administrative Procedure Act, 5 U.S.C. Sec. 551 et seq., and that Parravano did not have standing because there was neither an explicit nor an implicit private right of action under the Klamath and Trinity Acts.1 Parravano now appeals.
4
We have jurisdiction under 28 U.S.C. Sec. 1291. We affirm for the same reasons stated by the district court in its orders published at 837 F.Supp. 1034 (N.D.Cal.1993) and 861 F.Supp. 914 (N.D.Cal.1994). Accordingly, we adopt those portions of the district court orders relating to the issues raised by Parravano on appeal. We write only to emphasize that Indian fishing rights, whether they arise from treaty, statute, or executive order, are to be treated the same under the Magnuson Act.
BACKGROUND
5
We incorporate by reference the factual background to this case as set forth by the district court at 837 F.Supp. at 1038-39 and 861 F.Supp. at 917. We discuss only those facts relevant to the issues raised on appeal.
6
* The Klamath River fall chinook salmon is an anadromous fish that takes its name from the Klamath River where it spawns. By their very nature, anadromous fish live transient lives. They hatch in the upper tributaries of rivers such as the Klamath and migrate down to the Pacific Ocean where they spend much of their adulthood. At the age of three or four years, they instinctively return to the tributaries of their natal river where they spawn and then die. For generations, the Hoopa Valley and Yurok Indian tribes have depended on the Klamath chinook salmon for their nourishment and economic livelihood. See Arnett v. 5 Gill Nets, 48 Cal.App.3d 454, 121 Cal.Rptr. 906, 907-909 (1975); cert. denied, 425 U.S. 907, 96 S.Ct. 1500, 47 L.Ed.2d 757 (1976); Memorandum from John D. Leshy, Solicitor of the Department of the Interior to the Secretary of the Interior 8 (Oct. 4, 1993) ("Interior Solicitor's Opinion"). In the past, we have observed that the Tribes' salmon fishery was "not much less necessary to [their existence] than the atmosphere they breathed." Blake v. Arnett, 663 F.2d 906, 909 (9th Cir.1981) (internal quotations omitted).
7
In 1876, President Grant issued an executive order formally establishing a reservation for the Tribes "to be set apart for Indian purposes, as one of the Indian reservations authorized to be set apart, in California, by Act of Congress approved April 8, 1864." I.C. Kappler, Indian Affairs: Laws and Treaties 815 (1904). In the years following the 1876 executive order, non-Indians encroached upon the Indian fisheries along the Klamath River, challenging the Indians' fishing rights. Interior Solicitor's Opinion, at 6. To resolve this problem, in 1891 President Harrison issued another executive order under the authority of the 1864 Act. See Donnelly v. United States, 228 U.S. 243, 258-59, 33 S.Ct. 449, 453-54, 57 L.Ed. 820 (1913), modified on other grounds, 228 U.S. 708, 33 S.Ct. 1024, 57 L.Ed. 1035 (1913). The 1891 order extended the Hoopa Valley Reservation to include the old Klamath Reservation and the strip of land connecting the two reservations. See Mattz v. Arnett, 412 U.S. 481, 493-94, 93 S.Ct. 2245, 2252-53, 37 L.Ed.2d 92 & app. (1973). Together, the 1876 and 1891 executive orders created the extended Hoopa Valley Reservation, which ran along both sides of the Klamath River, from the mouth of the Trinity River down to the Pacific Ocean. See id.
8
In 1988, Congress enacted the Hoopa-Yurok Settlement Act to divide the extended Hoopa Valley Reservation into the Yurok Reservation and Hoopa Valley Reservation. 25 U.S.C. Sec. 1300i. One of the concerns of Congress at the time of the 1988 partitioning was to protect the Tribes' fisheries. See Partitioning Certain Reservation Lands Between the Hoopa Valley Tribe and the Yurok Indians, to Clarify the Use of Tribal Timber Proceeds, and For Other Purposes, S.Rep. No. 564, at 14-15; H.R.Rep. No. 938, Pt. 1, at 20.
II
9
Congress enacted the Magnuson Act, 16 U.S.C. Sec. 1801, to conserve ocean fishing resources and to protect these resources from foreign fishing. The Magnuson Act delegated to the Secretary of Commerce the authority to set harvest levels in ocean fisheries located between three and two hundred nautical miles offshore, 16 U.S.C. Sec. 1851. The Magnuson Act also established regional Fishery Management Councils, which are charged with recommending to the Secretary of Commerce ocean harvest limits and salmon "escapement" levels.2 16 U.S.C. Sec. 1852. The Secretary of Commerce reviews the regional councils' recommendations for consistency with the national standards set forth in the Magnuson Act and "any other applicable law." 16 U | {
"pile_set_name": "FreeLaw"
} |
[Cite as State v. Goss, 2017-Ohio-161.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. John W. Wise, P. J.
Plaintiff-Appellee Hon. Patricia A. Delaney, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 16 COA 023
GARRETT S. GOSS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Municipal Court,
Case No. 16 TRC 1963
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 17, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ANDREW N. BUSH MATTHEW J. MALONE
ASSISTANT LAW DIRECTOR THE LAW OFFICES OF
1213 East Main Street MATTHEW J. MALONE, LLC
Ashland, Ohio 44805 10 East Main Street
Ashland, Ohio 444805
Ashland County, Case No. 16 COA 023 2
Wise, P. J.
{¶1} Appellant Garrett S. Goss appeals his conviction, following a no contest
plea, in the Municipal Court of Ashland County, for operating a motor vehicle under the
influence and improper operation at a stop sign. Appellee is the State of Ohio. The
relevant facts leading to this appeal are as follows.
{¶2} On March 26, 2016, Officer Cody Hying of the Ashland Police Department
stopped Appellant Goss for failing to stop at a marked bar or line at an intersection
(Ashland Codified Ordinance § 331.19(a)), having observed him come to a stop at an
intersection with the engine compartment of his 2004 Toyota Tacoma extended-cab
pickup truck beyond the stop line and the rear wheels of his vehicle behind it, such that
appellant’s “driver’s door was on top of the stop bar.” Hying Testimony, Suppression Tr.
at 6.
{¶3} Based on Officer Hying’s subsequent observations and investigation at the
scene, appellant was charged with OVI (R.C. 4511.19(A)(1)(a) and (A)(1)(d)) and
improper operation of vehicles at a stop sign (A.C.O. § 331.19(a)), under trial court case
number 16 TRC 1963. In addition, appellant was charged with possession of drug
paraphernalia (A.C.O. § 513.12(C)(1)) and possession of marihuana (A.C.O. §
513.03(C)(2)) under trial court case number 16 CRB 382.
{¶4} Appellant thereafter entered pleas of not guilty to all charges. On April 19,
2016, appellant filed in each case a motion to suppress the evidence obtained as a result
of the traffic stop. A joint hearing on the motions was held on May 6, 2016.
{¶5} After taking the matter under advisement, the trial court denied appellant’s
motion(s) to suppress via a judgment entry issued June 21, 2016.
Ashland County, Case No. 16 COA 023 3
{¶6} On June 22, 2016, appellant entered no contest pleas to OVI (R.C.
4511.19(A)(1)(a) and (A)(1)(d)) and the stop sign violation in 16 TRC 1963, as well as
possession of drug paraphernalia and possession of marihuana in 16 CRB 382. Formal
sentencing entries on the two cases were issued on July 6, 2016.
{¶7} Appellant filed a notice of appeal on June 30, 2016. He herein raises the
following sole Assignment of Error:
{¶8} “THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO
SUPPRESS.”
I.
{¶9} In his sole Assignment of Error, appellant contends the trial court erred in
denying his motion to suppress. We disagree.
{¶10} There are three methods of challenging on appeal a trial court's ruling on a
motion to suppress. First, an appellant may challenge the trial court's finding of fact.
Second, an appellant may argue the trial court failed to apply the appropriate test or
correct law to the findings of fact. Finally, an appellant may argue the trial court has
incorrectly decided the ultimate or final issue raised in the motion to suppress. When
reviewing this third type of claim, an appellate court must independently determine,
without deference to the trial court's conclusion, whether the facts meet the appropriate
legal standard in the given case. See State v. Fanning (1982), 1 Ohio St.3d 19, 1 OBR
57, 437 N.E.2d 583; State v. Williams (1993), 86 Ohio App.3d 37, 619 N.E.2d 1141; State
v. Curry (1994), 95 Ohio App.3d 93, 96, 641 N .E.2d 1172; State v. Claytor (1993), 85
Ohio App.3d 623, 627, 620 N.E.2d 906; State v. Guysinger (1993), 86 Ohio App.3d 592,
621 N.E.2d 726. The United States Supreme Court has held that “... as a general matter
Ashland County, Case No. 16 COA 023 4
determinations of reasonable suspicion and probable cause should be reviewed de novo
on appeal.” Ornelas v. U.S. (1996), 517 U.S. 690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d
911.
{¶11} A.C.O. § 331.19(a) governs stopping at stop signs within Ashland’s
municipal jurisdiction. It states, in pertinent part: "Except when directed to proceed by a
law enforcement officer, every driver of a vehicle approaching a stop sign shall stop at a
clearly marked stop line, but if none before entering the crosswalk on the near side of the
intersection ***.” (Emphasis added).1
{¶12} In the case sub judice, appellant argues that the trial court incorrectly
decided the ultimate or final issue raised in his motion to suppress. See Appellant’s Brief
at 3-4. Thus, appellant is presently not focused on the court’s basic factual findings.
However, we would at least note the trial court found a lack of credibility in appellant’s
suppression testimony that he was certain he had stopped his vehicle twice at the
intersection, once before the stop bar and once beyond it. See Judgment Entry Regarding
Motion to Suppress, at 2.
{¶13} The Ohio Supreme Court has stated: “ * * * [I]f an officer's decision to stop
a motorist for a criminal violation, including a traffic violation, is prompted by a reasonable
and articulable suspicion considering all the circumstances, then the stop is
constitutionally valid.” State v. Mays, 119 Ohio St.3d 406, 894 N.E.2d 1204, 2008–Ohio–
4539, ¶ 8. It is well-established that an officer's reasonable articulable suspicion does not
require proof beyond a reasonable doubt that the defendant's conduct has satisfied the
elements of the offense. State v. Willis, 5th Dist. Licking No. 14 CA 103, 2015–Ohio–
1 The language of A.C.O. § 331.19(a) reflects the language found in R.C 4511.43(A).
Ashland County, Case No. 16 COA 023 5
3739, ¶ 25, citing Westlake v. Kaplysh, 118 Ohio App.3d 18, 20, 691 N.E.2d 1074 (8th
Dist.1997).
{¶14} Appellant directs us inter alia to State v. Drushal, 9th Dist. Wayne No.
13CA0028, 2014–Ohio–3088, wherein the Ninth District Court of Appeals found the basic
language in the Wooster Codified Ordinances that “a vehicle approaching a stop sign
shall stop at a clearly marked stop line” to be unambiguous. Id. at ¶ 12. We note the facts
in Drushal indicate the driver had stopped either just at or somewhat on top of the stop
line, but not “before” it, which is how the Wooster officer making the traffic stop in that
case had interpreted the law. See id. at ¶ 4. Appellant herein maintains that under | {
"pile_set_name": "FreeLaw"
} |
State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: June 11, 2015 516551
________________________________
In the Matter of KYLEE Y. and
Others, Alleged to be
Neglected Children.
CLINTON COUNTY DEPARTMENT OF
SOCIAL SERVICES,
Respondent;
LYNN AA.,
Respondent.
TIMOTHY Z.,
Appellant.
(Proceeding No. 1.)
_______________________________ MEMORANDUM AND ORDER
In the Matter of KYLEE Y. and
Others, Alleged to be
Neglected Children.
CLINTON COUNTY DEPARTMENT OF
SOCIAL SERVICES,
Respondent;
DONALD Y.,
Respondent.
TIMOTHY Z.,
Appellant.
(Proceeding No. 2.)
________________________________
Calendar Date: April 29, 2015
Before: Peters, P.J., Garry, Rose and Devine, JJ.
-2- 516551
__________
Allan B. Cruikshank, Plattsburgh, for appellant.
Allison W. Mussen, Clinton County Department of Social
Services, Plattsburgh, for Clinton County Department of Social
Services, respondent.
Omshanti Parnes, Plattsburgh, attorney for the children.
__________
Rose, J.
Appeals from two orders of the Family Court of Clinton
County (Lawliss, J.), entered March 11, 2013, which granted
petitioner's applications, in two proceedings pursuant to Family
Ct Act article 10, to adjudicate respondents' children to be
neglected, and modified an award of supervised visitation to
Timothy Z.
Timothy Z. (hereinafter the father) is the father of twins,
Brandy Y. and Cedar Y. (born in 2008). Respondent Lynn AA. is
the mother of the twins and she also has two other children, who
are not the subject of this appeal, with respondent Donald Y.
Petitioner commenced these proceedings against Lynn AA. and
Donald Y. alleging that they had neglected all four of the
children, and the father appeared as a nonrespondent parent (see
Family Ct Act § 1035 [d]). Family Court determined that the
children were neglected and entered dispositional orders which,
as relevant here, provided the father with visitation supervised
by petitioner.
The father appeals, arguing that Family Court did not have
a sound and substantial basis to name petitioner as the
supervisor of visitation. Since the March 2013 entry of the
dispositional orders on appeal, however, Family Court (Ryan, J.)
issued permanency orders terminating the father's right to
-3- 516551
visitation with his children.1 Those orders were entered in
November 2014, and it is our understanding that they have not
been appealed. Accordingly, these subsequent orders render the
appeals moot, inasmuch as the rights of the father will not be
"'directly affected by the determination of the appeal[s]'"
(Matter of Veronica P. v Radcliff A., 24 NY3d 668, 671 [2015],
quoting Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980];
see Matter of Lauren L. [Cassi M.], 79 AD3d 1172, 1172 [2010];
Matter of Ariel FF., 63 AD3d 1202, 1203 [2009]).
Peters, P.J., Garry and Devine, JJ., concur.
ORDERED that the appeals are dismissed, as moot, without
costs.
ENTER:
Robert D. Mayberger
Clerk of the Court
1
We take judicial notice of those orders (see Matter of
Hannah U. [Patti U.], 110 AD3d 1258, 1260 n 5 [2013]).
| {
"pile_set_name": "FreeLaw"
} |
155 Cal.App.2d 225 (1957)
D. H. BELL, Respondent,
v.
ANNABELLE TOWNE, Appellant.
Civ. No. 22531.
California Court of Appeals. Second Dist., Div. One.
Nov. 14, 1957.
Willedd Andrews for Appellant.
Leo Goodman and Gizella L. Allen for Respondent.
FOURT, J.
This is an appeal from a judgment in favor of the plaintiff quieting her title to two vacant lots.
This action was filed November 20, 1953. In 1946, the plaintiff herein filed an action, which will hereinafter be referred to as the "first action," to quiet title to the same two lots involved in the present action. The matter was heard in the same court, against the same defendant-appellant, her husband, and Catherine A. McKenna, and plaintiff received a judgment quieting the title in plaintiff, which judgment was sustained on appeal in 95 Cal.App.2d 398 [213 P.2d 73], and became final on May 25, 1950. In the first action the appellant herein appeared and answered in propria persona and testified at the trial that she did not own any part of either lot and that she only claimed the right to take care of the lots for Mrs. McKenna. The judgment in the first action was in the usual form.
The present action was filed about three and one-half years after the judgment in the first action became final. The complaint in the present case set forth and pleaded a copy of the judgment in the first action, as well as a copy of the opinion of the District Court of Appeal. The appellant answered by denying that the plaintiff owned the property, but made no denial of the record of the first action. She further answered, by way of a special defense, that she was the owner of the property in question. There was no plea of the statute of limitations.
The evidence disclosed that the first time appellant saw or communicated with plaintiff, or anyone representing her, *227 following the first action was in the fall of 1953, at which time a representative of the plaintiff called on appellant to discuss the sale of the lots to appellant, and plaintiff through her representative thereupon discovered for the first time subsequent to the first action, that appellant claimed an interest in the lots. A title search was requested and plaintiff ascertained that a quitclaim deed dated April 28, 1952, from a Catherine A. McKenna to the appellant Towne had been recorded on April 29, 1952. Plaintiff then brought this action to remove the cloud on the title caused by the recording of the quitclaim deed, and also to remove any other possible claim of the appellant.
At the trial there was received into evidence the file of the first action, which included the exhibits, pleadings, judgment and a copy of the opinion of the District Court of Appeal. [1, 2] It has been held that, "When a former judgment is properly pleaded in a complaint, such judgment may be considered by the trial court in determining whether it is res judicata of a plaintiff's alleged cause of action" and, "... it is the general rule that a final judgment is res judicata of the issues involved therein where the trial court had jurisdiction." (Weil v. Barthel, 45 Cal.2d 835, 837 [291 P.2d 30].)
[3] It was stated in Todhunter v. Smith, 219 Cal. 690, at pages 694-695 [28 P.2d 916], as follows: "By virtue of the doctrine of res judicata the final determination of a court of competent jurisdiction necessarily affirming the existence of any fact is conclusive evidence of the existence of that fact when it is again in issue in subsequent litigation between the same parties in the same or any other court. The facts decided in the first suit cannot be disputed or relitigated although the later suit is upon a different cause of action. (Citing cases and authority.) The doctrine of res judicata has a double aspect. [4] A former judgment operates as a bar against a second action upon the same cause, but in a later action upon a different claim or cause of action, it operates as an estoppel or conclusive adjudication as to such issues in the second action as were actually litigated and determined in the first action."
The Todhunter case is cited with approval in Taylor v. Hawkinson, 47 Cal.2d 893, 895 [306 P.2d 797].
[5] The appellant made an effort to attack collaterally the judgment in the first action by attempting to show that McKenna was a disbarred attorney and therefore could not represent the appellant therein. The record discloses that *228 appellant was in court in propria persona, as was McKenna. No such collateral attack can be permitted. (Hollyfield v. Geibel, 20 Cal.App.2d 142, 148 [66 P.2d 755]; Westphal v. Westphal, 20 Cal.2d 393, 397 [126 P.2d 105].)
[6] The plaintiff established a prima facie case in her favor when she pleaded the judgment and the appellate court opinion, and at the trial caused to be received into evidence the file of the first action (including the judgment which established that she was the owner of the property in question, and that the appellant had no right, title or interest in the property, and that she was enjoined from claiming any). The burden then shifted to the appellant. It was appropriately stated in Madden v. Alpha Hardware & Supply Co., 128 Cal.App.2d 72, at page 75 [274 P.2d 705]:
"It should be noted that the primary question for determination is the validity of plaintiffs' title, if any--not the strength or weakness of defendant's title; in other words, the sufficiency of the evidence to support the finding of the trial court that plaintiffs have title to the property in question."
"The plaintiffs, having shown legal title in themselves, it is presumed that they were possessed of the property within the time required by law and that the occupation thereof by defendant is deemed to have been in subordination of plaintiffs' title, unless it be shown that defendant's possession was adverse for the statutory period. (Code Civ. Proc., 321.) Thus the burden was cast upon defendant to affirmatively establish its alleged adverse possession. (Westphal v. Arnoux, 51 Cal.App. 532 [197 P. 395].)" (See also Cory v. Hotchkiss, 31 Cal.App. 443, 444 [160 P. 841].)
The quitclaim deed which the appellant secured from McKenna was worthless. The court in the first action decreed that McKenna had no interest in the property, and therefore she had no interest which she could transfer to the appellant herein.
Appellant did pay some of the taxes on the property but she did not pay all of them. [7] In West v. Evans, 29 Cal.2d 414, at page 417 [175 P.2d 219], it is set forth:
"To establish title by adverse possession, the claimant must establish five elements in connection with his occupancy of the property. (Unger v. Mooney, 63 Cal. 586 [49 Am.Rep. 100] ...; see Code Civ. Proc., 321 et seq.) (1) Possession must be by actual occupation under such circumstances as to constitute reasonable notice to the owner. (Citing cases.) (2) Possession must be hostile to the owner's title. (Citing *229 cases.) (3) The holder must claim the property as his own, either under color of title, or claim of right. (Citing cases.) (4) Possession must be continuous and uninterrupted for five years. (Citing cases.) (5) The possessor must pay all of the taxes levied and assessed upon the property during the period. (Citing cases.) Unless each one of these elements is established by the evidence, the plaintiff has not acquired title by adverse possession."
"Actual possession, said Chief Justice Field, means 'a subjection to the will and dominion of the claimant' (Coryell v. Cain, 16 Cal. 567, 573). It is established not alone by the assertion of title, but it must be coupled with acts of ownership which proclaim to the world, and bring notice to the owner, that a right is claimed in the land over which the claimant is seeking to exercise dominion. (Hart v. Cox, 171 Cal. 364, 367 [153 P. 391]. ...)"
In the present case the evidence disclosed that appellant failed to establish the requirements numbered (1), (2), (4) and (5) above mentioned.
The judgment is affirmed.
White, P. J., and Drapeau, J., [fn. *] concurred.
NOTES
[fn. *] *. Assigned by Chairman of Judicial Council.
| {
"pile_set_name": "FreeLaw"
} |
120 Cal.App.2d 242 (1953)
HOWARD PARK COMPANY (a Corporation) et al., Appellants,
v.
CITY OF LOS ANGELES et al., Respondents.
Civ. No. 19683.
California Court of Appeals. Second Dist., Div. One.
Sept. 15, 1953.
Holbrook, Tarr & O'Neill for Appellants.
Ray L. Chesebro, City Attorney, Bourke Jones, Assistant City Attorney, Alfred E. Rogers, Deputy City Attorney, and Roscoe R. Hess for Respondents.
WHITE, P. J.
This is an appeal by plaintiffs from an order of the Superior Court of Los Angeles County denying the issuance of an alternative writ of mandate on a petition that is entitled "Petition for Writ of Mandate and/or Injunction." Named as defendants in this proceeding are the city of Los Angeles, the mayor of said city, members of the city council, board of public works and the Meriwether Investment Company, a corporation.
Plaintiffs are the owners of a tract of land in the city of Los Angeles, zoned and being used for oil production purposes, a portion of the tract lying within the boundaries of the sanitary sewer district created pursuant to section 5000 et seq. of the Streets and Highways Code (formerly the Improvement Act of 1911), and known as the Athens Boulevard and Vermont Avenue Sewer District. Meriwether Investment Company is allegedly the assignee of the contractor who constructed the sanitary sewer system in the aforesaid district, and as such assignee, is alleged to have bought or undertaken to buy the bonds to be issued for the financing of said sewer system.
In their petition for a writ of mandate and/or injunction filed in the superior court, plaintiffs prayed that the city and all its named officials "recall, withdraw and expunge" all of the proceedings taken as to assessments numbered 514, 724, 725, 850, and 851 of the Athens Boulevard and Vermont Avenue Sewer District, and to make a new assessment in accordance with certain rules prescribed by plaintiffs in their petition for the writ, and which rules, according to plaintiffs are "in accordance with law." Plaintiffs also prayed for the issuance of a "Writ of Injunction" to restrain defendant Meriwether Company from "doing any acts whatsoever to impose any liens ... on property of plaintiffs."
The petition now before us sought a review by the superior court of the confirmation by the city council of the assessments levied against the properties of plaintiffs. *244
The basic contentions as advanced by plaintiffs are as follows: First, that the board of public works failed to comply with section 5343 of the Streets and Highways Code, in that said body did not assess against the lands of petitioners the cost of such improvement "in proportion to the estimated benefits to be received by each of the said several lots or parcels of land." (Sts. & Hy. Code, 5343), but proceeded in accordance with the provisions of the cited code, sections 5315 to 5327, requiring that street assessments be spread "in proportion to the frontage." Second, that the board of public works unlawfully delegated its powers and duties to employees of said board, to-wit, employees in the bureau of assessments of the city of Los Angeles, who prepared an assessment list and diagram which was submitted to the board, and which list and diagram and the assessments thereunder were allegedly computed "illegally and erroneously and in violation of law by application in proportion to the frontage owned by each property owner in said district of the cost at a rate per front foot ... of the work." That in accepting from its employees the assessment list and diagram and not making any independent investigation of its own, but approving the list and diagram as submitted, the Board of Public Works illegally delegated its powers.
At the conclusion of the hearing before the superior court, the following order was entered: "The court having read the petition herein, the reporter's transcript of the proceeding before the city council of the city of Los Angeles in the matter of the appeal of the Howard Park Company, filed herein and the several points and authorities filed by the plaintiffs and the defendants, the court now denies plaintiff's application for an alternative writ of mandate." From such order plaintiffs prosecute this appeal.
When a stay pending determination of the foregoing appeal was denied, plaintiffs applied to this court for a writ of mandate against the above- named defendants and also joined as a respondent therein, the treasurer of the city of Los Angeles. We issued an alternative writ of mandate, briefs were filed, the cause was orally argued and, on August 5, 1953, this court rendered its decision wherein the alternative writ issued by us was discharged and a peremptory writ denied (Howard Park Co. v. City of Los Angeles, 119 Cal.App.2d 515 [259 P.2d 977]).
[1] The foregoing basic issues presented by appellants herein were fully considered by us in the case just cited *245 and were determined adversely to them. Upon the authority of and for the reasons stated in said decision we are satisfied that the board of public works did not unlawfully delegate its powers in spreading the assessments in question, and that the procedure adopted in the instant case does no violence to section 5343 of the Streets and Highways Code.
[2] An examination of the transcript of proceedings had before the city council, and which document was before the superior court, reveals that appellants were given every opportunity to be heard before the legislative body, and that they availed themselves thereof, presenting not only oral and documentary evidence, but also presented judicial decisions affecting the legal aspect of the assessments at considerable length. There appears no evidence of fraud, gross injustice or demonstrable mistake in the conclusion arrived at in the hearings before or the conclusions arrived at by the legislative body on the question of the extent of benefits to appellants' properties. The question, resting as it does, peculiarly in the determination of the assessing authority, the conclusion arrived at by the latter will not, under the circumstances here present, be interfered with by the courts.
[3] There is one further matter not referred to in appellants' briefs but which was included in their petition to the superior court and presented at the oral argument before us. That is the claim that at the hearing before the city council, one of the members thereof "prejudged the matter."
In that regard appellants alleged in their petition to the superior court that during the hearing, when an adjournment was taken to the following day, the councilman in whose councilmanic district the sewer district in question is located, addressed his colleagues on the council, stating, "That in his mind he was satisfied that the assessments were proper and should be confirmed." Appellants' petition then avers that immediately following the aforesaid statement by the councilman, appellants' counsel requested the president of defendant city council to rule that, by virtue of "prejudgment" of said matter, defendant Councilman Gibson was not qualified to further sit as a member of a quasi-judicial tribunal hearing such appeals; that nevertheless said defendant Gibson was permitted at all times thereafter to participate in such hearing and thereafter to vote on the confirmation of said assessments. *246
We fail to see wherein appellants were prejudiced by reason of the fact that Councilman Gibson was permitted to vote on the confirmation of the assessments. Of the 15 members constituting the city council, 13 were present at the hearing in question. Eight votes, or a majority of the council, were necessary to confirm the assessments. On the roll call, 13 members voted to confirm the assessments. Had Councilman Gibson refrained from voting or been denied the right to vote there would still remain 12 affirmative votes, or four more than necessary for confirmation of the assessments. Had the vote of Councilman Gibson been necessary in order to confirm the assessments, a different question might be presented, but such was not the case in the matter now engaging our attention.
For the foregoing reasons, the order from which this appeal was taken is affirmed.
Doran, J., and Drapeau, J., concurred.
| {
"pile_set_name": "FreeLaw"
} |
472 F.Supp. 396 (1979)
Allen CARLSON, Plaintiff,
v.
Ransford B. PALMER, Defendant.
Civ. A. No. 78-218.
United States District Court, D. Delaware.
June 15, 1979.
*397 Richard L. Sutton, and Walter C. Tuthill, of Morris, Nichols, Arsht & Tunnell, Wilmington, Del., for plaintiff; E. Michael Keating, of Clark, Ladner, Fortenbaugh & Young, Philadelphia, Pa., of counsel.
Richard W. Pell, of Tybout & Redfearn, Wilmington, Del., for defendant.
MEMORANDUM
STEEL, Senior District Judge:
Presently before the Court is the defendant's motion to have the Clerk's disallowance of costs reviewed pursuant to Rule 54 Fed.R.Civ.P. (Doc. No. 39).[1] On May 4, 1979, the Clerk of the District Court for the District of Delaware denied defendant's request to tax as costs the fees of five expert witnesses on the ground that expert witness fees are not taxable in excess of the amounts allowable for ordinary witnesses pursuant to 28 U.S.C. § 1821 (1976). (Doc. No. 38).[2]
Defendant prevailed in a jury trial which ran from March 26 to March 28, 1979. As the prevailing party, defendant is entitled to certain costs pursuant to Rule 54(d) Fed. R.Civ.P. and 28 U.S.C. §§ 1821, 1925 (1976). Defendant seeks to charge as costs against the plaintiff the fees of two medical expert witnesses, two ship captains, and one economist, who testified at trial. Specifically, defendant requests $400 for the court appearance of Dr. Haynes B. Cates; $400 for the appearance of Dr. Allen Fink; $242.36 for the appearance of Captain Elmer L. Thomas; $150 for the appearance of Captain Frank Badur; and $886.08 for the appearance of Robert F. Minnehan, Ph.D. (Doc. No. 36).
This action, which involved a claim of maritime tort, invoked both the admiralty and diversity jurisdiction of this court. (Doc. No. 1). In non-maritime actions brought solely on the basis of diversity jurisdiction, this Court, in its discretion, has elected to follow the state rule embodied in 10 Del.C. § 8906 (1975) which provides that expert witness fees are taxable as costs.[3]*398 See Townsend v. Wise, 450 F.Supp. 1162 (D.Del.1979); Chemical Bank v. Kimmel, 68 F.R.D. 679 (D.Del.1975); Henlopen Hotel Corp. v. Aetna Ins. Co., 38 F.R.D. 155 (D.Del.1965).
Title 28 U.S.C. § 1925 (1976) governs the allocation of costs in maritime and admiralty proceedings. Enacted in 1948, 28 U.S.C. § 1925 provides:
Except as otherwise provided by Act of Congress, the allowance and taxation of costs in admiralty and maritime cases shall be prescribed by rules promulgated by the Supreme Court.
Thus, in admiralty and maritime proceedings, costs are allowed according to rules promulgated by the Supreme Court if Congress has not acted. See Firemen's Fund Ins. Co. v. Standard Oil of Cal., 339 F.2d 148 (9th Cir. 1964). Although the Supreme Court has not exercised its power to promulgate rules concerning the allocation of costs in admiralty cases, Congress, however, has enacted a comprehensive statute that governs the payment of witness fees for "a witness in attendance at any court of the United States." 18 U.S.C. § 1821 (emphasis added). Accordingly, the provisions of Section 1821, which have been construed to prevent taxation of expert witness fees as costs, See Gerber v. Stoltenberg, 394 F.2d 179 (5th Cir. 1968); Kaiser Industries Corp. v. McLouth Steel Corp., 50 F.R.D. 5, 13 (D.C.Mich.1970); 6 Moore's Federal Practice, § 54.77[5-3] at p. 1734, apply to admiralty cases by virtue of the "except as otherwise provided by Act of Congress" clause in Section 1925. As was stated in Katz v. Cie Generale Transatlantique, 190 F.Supp. 435, 437 (E.D.Va.1960), "[s]ection 1821 is made expressly applicable to witnesses attending in any court of the United States, and is not affected by 28 U.S.C.A. § 1925 as the costs are `otherwise provided by Act of Congress.'" In short, Section 1821 controls the assessment of expert witness fees in both civil and admiralty cases and is not subject to alteration by the Supreme Court even if one had been attempted.[4]
The only question presently facing the Court is whether state or federal law governing the payment of expert witness fees applies to a maritime tort action based on diversity and admiralty jurisdiction.
It is well established that maritime torts, whether instituted pursuant to diversity or admiralty jurisdiction, are measured by the standards of federal admiralty law. See Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1958); Branch v. Schumann, 445 F.2d 175, 178 (5th Cir. 1971); Capozziello v. Brasileiro, 443 F.2d 1155 (2d Cir. 1971). It is also fundamental that admiralty law is to be uniform throughout the United States. Accordingly, a federal court sitting in admiralty may apply state law that "does not contravene any acts of Congress, nor work any prejudice to the characteristic features of the maritime law, nor interfere with its proper harmony and uniformity in its international and interstate relations." Just v. Chambers, 312 U.S. 383, 389, 61 S.Ct. 687, 692, 85 L.Ed. 903 (1940); Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 410, 73 S.Ct. 1129, 97 L.Ed. 1398 (1953); St. Hilaire Moye v. Henderson, 496 F.2d 973, 980-81 (8th Cir.), cert. denied, 419 U.S. 884, 95 S.Ct. 151, 42 L.Ed.2d 125 (1974).
Application of the Delaware statute governing expert witness fees in the instant case would directly contravene the federal statute governing taxation of witness fees as costs in maritime tort cases. By enacting 28 U.S.C. § 1925, Congress indicated its intention to apply the provisions of Section 1821, among other federal statutes, to admiralty and maritime cases. Therefore, the *399 provisions of Section 1821 constitute an element of federal maritime law and establish specific standards governing the taxation as costs of expert witness fees. Because the Delaware statute directly contravenes Section 1821, as construed to prevent expert witness fees from being taxed as costs, the provisions of the Delaware statute may not be applied in an admiralty court.[5] Accordingly, defendant's motion to recover the costs of expert witness fees will be denied.
NOTES
[1] Rule 54(d) Fed.R.Civ.P. provides as follows:
Except when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs; . . . Costs may be taxed by the clerk on one day's notice. On motion served within five days thereafter, the action of the clerk may be reviewed by the court.
[2] 28 U.S.C. § 1821 provides as follows:
(a)(1) Except as otherwise provided by law, a witness in attendance at any court of the United States, or before a United States Magistrate, or before any person authorized to take his deposition pursuant to any rule or order of a court of the United States, shall be paid the fees and allowances provided by this section.
(2) As used in this section, the term `court of the United States' includes, in addition to the courts listed in section 451 of this title, any court created by Act of Congress in a territory which is invested with any jurisdiction of a district court of the United States.
(b) A witness shall be paid an attendance fee of $30 per day for each day's attendance. A witness shall also be paid the attendance fee for the time necessarily occupied in going to and returning from the place of attendance at the beginning and end of such attendance or at any time during such attendance.
(c)(1) A witness who travels by common carrier shall be paid for the actual expenses of travel on the basis of the means of transportation reasonably utilized and the distance necessarily traveled to and from such witness's residence by the shortest practical route in going to and returning from the place of attendance. Such a witness shall utilize a common carrier at the most economical rate reasonably available. A receipt or other evidence of actual cost shall be furnished.
(2) A travel allowance equal to the mileage allowance which the Administrator of General Services has prescribed, pursuant to section 5704 of title 5, for official travel of employees of the Federal Government shall be paid to each witness who travels by privately owned vehicle. Computation of mileage under this | {
"pile_set_name": "FreeLaw"
} |
MEMORANDUM OPINION
No. 04-11-00220-CV
EX PARTE Jesse
RAMIREZ
Original Mandamus
Proceeding[1]
PER CURIAM
Sitting: Sandee Bryan
Marion, Justice
Rebecca
Simmons, Justice
Marialyn
Barnard, Justice
Delivered and
Filed: April 13, 2011
PETITION FOR WRIT OF HABEAS CORPUS DENIED
On March 22, 2011, relator filed a petition for writ of habeas corpus. The court has
considered relator’s petition and is of the opinion that relator is not
entitled to the relief sought. Accordingly, the petition for writ of habeas
corpus is DENIED. See Tex. R.
App. P. 52.8(a).
PER CURIAM
[1]
This proceeding arises out of Cause No. 98-CI-12694, styled In the Interest
of J.R. and G.C.R., in the 73rd Judicial District Court, Bexar County,
Texas, the Honorable Renée F. McElhaney presiding.
| {
"pile_set_name": "FreeLaw"
} |
172 F.3d 866
Torresv.Johnson
NO. 97-20635
United States Court of Appeals,Fifth Circuit.
February 01, 1999
Appeal From: S.D.Tex. , No.H-88-CV-1960
1
Affirmed.
| {
"pile_set_name": "FreeLaw"
} |
507 F.2d 865
FOOD INDUSTRIES RESEARCH AND ENGINEERING, INC., a WashingtonCorporation, Appellant,v.STATE OF ALASKA et al., Defendants, Greater AnchorageDevelopment Corp. et al., Appellees.
No. 73-3023.
United States Court of Appeals, Ninth Circuit.
Nov. 19, 1974.
Walter H. Garretson (argued), Anchorage, Alaska, for appellant.
Walter W. Cardwell, III (argued), Richard F. Lytle (argued), Houston & Lytle, Anchorage, Alaska, for appellees.
Before BROWNING, ELY and GOODWIN, Circuit Judges.
OPINION
ALFRED T. GOODWIN, Circuit Judge:
1
Plaintiff engineering firm appeals from a summary judgment denying recovery of the price of engineering services and quantum meruit relief. The district court held that the contract under which the services were performed was illegal from its inception because the engineers had not qualified to perform professional services in Alaska prior to entering into the contract.1
2
The equities favor the engineers. Their plans were utilized in construction of the building. The illegality of the contract was a matter of inadvertence and bad timing. One of the engineers' officers applied for the requisite certification less than a month after the contract was made. The illegality caused no loss to the appellees. The engineers were at all times qualified to perform engineering services in the state of Washington, and obtained qualification in Alaska before the two final phases of the contract had been performed. Finally, the appellees' agent appears to have been aware of the possibility that the engineers had not qualified to do business in Alaska. Less than three months after the contract was signed the agent wrote to the appellant's head of engineering:
3
'The other thing I wanted to ask, Dee, are you licensed in Alaska? If not I believe state law requires an architect licensed in Alaska to stamp the plans. But this can be easily taken care of.'
4
Though the equities favor the appellant, a prior decision of this court does not. In Hedla v. McCool, 476 F.2d 1223 (9th Cir. 1973), we held that a firm of Seattle architects who were not qualified in Alaska could not recover on a contract to design a building to be constructed in Alaska. We relied on the same statute that is at issue here. We also refused quantum meruit relief, on the basis of an Erie-educated2 guess that Alaska would follow the common-law rule that a party to an illegal contract cannot recover in quasi contract for the benefit conferred. 476 F.2d at 1227.
5
The substantive holding in Hedla was, at the time it was written, an educated guess on a question of state law. Hedla is useful as precedent only to the extent that it reflects the current state of Alaska law.
6
Two recent Alaska Supreme Court decisions suggest that the proper course now is to remand the case to the district court for further consideration in light of new Alaska precedent. In Gates v. Rivers Construction Co., 515 P.2d 1020 (Alaska 1973), the Supreme Court of Alaska enforced an employment contract which violated the immigration laws of the United States. Recognizing the general rule that an illegal contract is unenforceable, the court noted that there were many exceptions to this rule. It placed particular significance on the fact that the statute making the contract illegal contained no specific declaration that the labor or service contracts of aliens seeking to enter the United States for the purpose of performing labor should be void.
7
'* * * The statute only specifies that aliens who enter this country for such purpose, without having received the necessary certification, 'shall be ineligible to receive visas and shall be excluded from admission into the United States." 515 P.2d at 1022.
8
The court contrasted the current statutory language with the language of the predecessor statute, which expressly made such contracts void and of no effect, and inferred that Congress, by omitting the 'void' language, intended to allow such contracts to be enforced. 515 P.2d at 1022-1023.
9
The engineers here compare the Alaska engineer-registration statute, which contains no express 'void' clause, with the Alaska contractor-registration statute, which does provide that no action may be brought on a contract entered into prior to registration.3
10
The omission of specific 'void' or 'unenforceable' language appears to be meaningful to the Supreme Court of Alaska. In denying relief in reliance upon Hedla v. McCool, supra, the district court did not have the benefit of the Alaska court's recently announced view of the significance of such an omission.
11
A second recent Alaska case, Sumner Development Corporation v. Shivers, 517 P.2d 757 (Alaska 1974), held that the contractor-registration statute, AS 08.-18.151, precludes affirmative recovery on a contract by an unregistered contractor but permits use of the barred claim as a setoff. In the context of affirmative recovery, Sumner reiterated the view expressed in Gates v. Rivers Construction Co., supra, that action on an 'illegal' contract is not necessarily barred unless the statute contains an explicit unenforceability provision. 517 P.2d at 763.
12
Because the statute at issue here does not contain explicit 'unenforceability' or 'void' language, the case should be remanded for reconsideration by the district court in light of Sumner and Gates.
13
Neither party is entitled to costs in this court.
14
Vacated and remanded.
ELY, Circuit Judge (concurring):
15
In the light of certain writings of the Alaska Supreme Court, issued after the District Court's entry of judgment, I cannot conscientiously dissent from the majority's wish that the district judge be allowed to reconsider the dispute in the light of the subsequent state court expressions. It warrants emphasis, however, that it is not intended by the principal opinion to in any manner indicate this court's view as to the decision that should be properly made by the District Court in its reconsideration. Speaking only for myself, I can perceive nothing in the utterances of the Supreme Court of Alaska, particularly in Gates v. Rivers Construction Co. and Sumner Development Corp. v. Shivers, cited in the principal opinion, that should induce the District Court to alter its original judgment and thus depart from our court's holding in Hedla v. McCool, 476 F.2d 1223 (9th Cir. 1973).
1
Former AS 08.48.190, which was in effect at the time the contract was entered into, provided:
'A registered professional engineer or architect who is not a resident of the state or does not have an established place of business in the state but who possesses the qualifications required by this chapter shall qualify under this chapter before he may solicit business for, enter into contracts for, or perform professional services requiring registration or a permit.'
AS 08.48.190 was repealed by 1, ch. 179, SLA 1972 (effective July 1, 1972), and replaced by a similar provision, AS 08.48.281.
2
Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)
3
AS 08.18.151
'No person acting in the capacity of a contractor may bring an action in a court of this state for the collection of compensation for the performance of work or for breach of a contract for which registration is required under this chapter without alleging and proving that he was a registered contractor at the time he contracted for the performance of the work.'
| {
"pile_set_name": "FreeLaw"
} |
420 F.3d 1185
Peter N. GEORGACARAKOS, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee.
No. 04-1363.
United States Court of Appeals, Tenth Circuit.
August 29, 2005.
Submitted on the Brief:* Peter N. Georgacarakos, pro se.
John W. Suthers, United States Attorney, Jerry N. Jones, Assistant United States Attorney and Elizabeth A. Weishaupl, Assistant United States Attorney, Denver, Colorado, for Defendant-Appellee.
Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.
HARTZ, Circuit Judge.
1
Plaintiff Peter N. Georgacarakos, a federal prisoner, sued the United States for the loss of 23 books and a manuscript allegedly caused by the Bureau of Prisons and the United States Post Office. In May 2002 personnel at the Bureau's facility in Florence, Colorado, removed a box containing the books and manuscript from storage and mailed it to Plaintiff's family, apparently believing that they were acting at Plaintiff's request. The box came apart at the Florence Post Office, and all but seven of the books were lost.
2
Plaintiff claims that the Bureau caused his loss by mailing his box without authorization, failing to secure it properly, and failing to use certified mail so that it could be tracked, and that the Bureau compounded its errors by refusing to investigate the loss after it had occurred. He claims that the Post Office caused his loss by failing to secure his books and the manuscript after the box came apart, and compounded its error by failing to document the lost items properly or investigate the loss. He seeks damages.
3
The United States claims sovereign immunity. The district court dismissed for want of subject-matter jurisdiction on that ground. We review the district court's grant of a motion to dismiss de novo, assuming the truth of all facts that Plaintiff alleges. See Woodmen of World Life Ins. Soc'y v. Manganaro, 342 F.3d 1213, 1216 (10th Cir.2003); Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir.1971). We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.
4
The Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), generally waives the United States' sovereign immunity with respect to claims for money damages arising out of loss of property resulting from federal employee misconduct.1 But the Bureau and Post Office rely on two exceptions to the Act, 28 U.S.C. § 2680(b), (c), which state:
5
The provisions of this chapter and section 1346(b) of this title [waiving sovereign immunity] shall not apply to —
6
. . .
7
(b) Any claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter.
8
(c) Any claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer. . . .
9
Subsection (b) is sufficient to protect the United States, so we need not consider subsection (c).
10
Plaintiff's claims arise out of the loss of the books and manuscript that the Bureau mailed. Once mailed, the books and manuscript became "postal matter" within the meaning of § 2680(b). See Marine Ins. Co. v. United States, 378 F.2d 812 (2d Cir.1967) (package of emeralds temporarily diverted from postal delivery by Bureau of Customs was "postal matter"). And had these items not been lost, Plaintiff would have suffered no loss and would have had no claim. Thus, Plaintiff's claims arise out of the loss of postal matter and are consequently within the § 2680(b) exception.
11
It is irrelevant that the loss may also arise out of conduct for which there would otherwise be liability under the FTCA. For example, Plaintiff contends that the prison mailed his books without authorization. We can assume that he would have had a valid claim for expenses incurred in recovering books mailed to an unauthorized address. Moreover, we may assume that without the unauthorized mailing this claim would not exist. It is also true, however, that the claim that Plaintiff actually brought would not exist had the books not been lost in transmission. We note that the only damages he claims spring from the eventual loss of the books. Thus, Plaintiff's claim is one that was generated in part by an event covered by the exemption from liability provided by § 2680(b)— the loss of postal matter—and in part by an event not covered—unauthorized mailing. If § 2680(b) exempted liability only for a "claim arising solely out of the loss of postal matter," Plaintiff's claim would survive. But the statutory provision is not limited by the word solely or the like.
12
In insurance cases an analogous question arises when a policy excludes losses "arising out of" some event and it must be decided whether the policy covers a loss caused in part by that event and in part by others. In that context the majority rule is that policy language excluding losses arising out of some event excludes losses caused by that event even when they are also caused by other events. In All American Insurance Co. v. Burns, 971 F.2d 438, 440 (10th Cir.1992), for example, a church bus driver molested two of his minor passengers. They and their fathers sued the church, charging it with negligently hiring and failing to discharge the driver. Id. The insurance policy at issue contained an exclusion for "personal injury arising out of the willful violation of a penal statute." Id. at 440 (internal quotation marks and emphasis omitted). We observed that the plaintiffs' loss was caused by the church's negligence, but was also caused by the molestation: without it they would have had no claim. Id. at 442-43. Accordingly, the policy exclusion applied:
13
We cannot agree with the [plaintiffs'] argument that the cases can be viewed as involving only the negligence allegations and the negligent entrustment theory. It is, instead, an essential element of the state court causes of action that [the driver] molested the girls and caused them injuries of mind and body. . . . The petitions here would not have stated the complete causes of action without alleging the molestation and resulting injuries. . . .
14
Thus the penal violation exclusion logically and necessarily applies.
15
Id. Similarly, in American Commerce Insurance Co. v. Porto, 811 A.2d 1185 (R.I.2002), the court ruled that there was no coverage with respect to a negligent-supervision claim brought when a boy scout was sexually molested by a troop leader. The insurer prevailed because of a policy exclusion for a claim that "arises out of . . . the actual, alleged or threatened sexual molestation of a person." Id. at 1189 (internal quotation marks omitted). See also Stouffer & Knight v. Cont'l Cas. Co., 96 Wash.App. 741, 982 P.2d 105, 108 (1999) (exclusion for claims arising out of dishonest acts protected insurer against covering claim for negligent supervision brought by law-firm client whose funds were embezzled by secretary); Lee R. Russ & Thomas F. Segalla, 7 Couch on Insurance § 101:54 (3d ed. 1997) ("The phrase `arising out of' is frequently given a broader meaning than proximate cause. The phrase is considered to mean `flowing from' or `having its origin in," indicating that there only need be `a' causal connection, rather than a proximate causal connection."). Cf. Saenz v. Ins. Co. of Pa., 66 S.W.3d 444, 448 (Tex.App.2001) ("Under the Workers' Compensation Act, a claimant is required to prove that the injury for which she seeks compensation arose out of her employment. . . . [A]n injury arises out of employment if the employment is a producing cause—which means even if there are other causes for the injury, the employment need only be `a' cause."); Daniello v. Machise Express Co., 119 N.J.Super. 20, 289 A.2d 558, 560 (1972) ("An accident `arises out of employment' when in some manner it is due to the risk reasonably incidental to the employment, if the employment is a contributing cause of the accident resulting in the injury, and if the employment is a necessary factor leading to the accident, even though the employment is not the sole or proximate cause of the injury."). We see no reason why arising out of should have a different meaning in the FTCA.
16
Likewise, we are not persuaded by Plaintiff's contention that his claim falls outside the statutory exception because the Post Office's errors took place after transmission had ceased. The postal-matter exception is not limited to claims based on negligent transmission. It covers "[a]ny claim arising out of the loss, miscarriage, or negligent transmission of . . . postal matter." § 2680(b) (emphasis added). The exception applies here because the heart of Plaintiff's claim is still the damage caused by loss of the postal matter.
17
Cases in which appellate courts have held § 2680(b) inapplicable are quite different from the one before us. In Birnbaum v. United States, 588 F.2d 319, 321 (2d Cir | {
"pile_set_name": "FreeLaw"
} |
J. S69030/14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ERIBERTO GONZALEZ, : No. 203 EDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, November 19, 2013
in the Court of Common Pleas of Lehigh County
Criminal Division at No. CP-39-CR-0005179-2012
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND STABILE, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 12, 2014
Eriberto Gonzalez appeals from the judgment of sentence of
November 19, 2013, following a plea of nolo contendere to one count of
possession with intent to deliver (“PWID”) (heroin). We affirm.
On September 9, 2012, at approximately 3:15 p.m., Officer David
Howells was on routine patrol when he observed a black Mercedes SUV.
(Notes of testimony, 11/19/13 at 11.) Officer Howells ran the license plate
number and discovered that the vehicle’s registration was suspended for
insurance cancellation. (Id.) Officer Howells executed a traffic stop and
approached the vehicle. (Id.) Officer Howells observed appellant in the
driver’s seat. (Id.) When he asked appellant for identification, appellant
produced a driver’s license with the name “Angel Cintron.” (Id. at 12.) It
J. S69030/14
was clear to the officer that appellant was not the same man pictured on the
driver’s license. (Id.)
At that time, Officer Howells asked appellant to step out of the vehicle.
(Id.) Appellant consented to a search of his person, at which time
Officer Howells recovered a packet of synthetic marijuana in appellant’s
pocket. (Id.) During a subsequent inventory search of appellant’s vehicle,
Officer Howells found a black plastic bag filled with rice in the center console.
(Id.) Inside the bag were nine bundles of heroin containing a total of
69 stamp bags of heroin. (Id.) When Officer Howells placed appellant
under arrest, he asked whether he used any drugs such as cocaine or
heroin. (Id.) Appellant denied using any drugs except for synthetic
marijuana. (Id. at 13.)
On November 19, 2013, appellant entered a plea of nolo contendere
to count 1, PWID (heroin). In exchange for appellant’s plea, the
Commonwealth agreed to withdraw the remaining charges including two
counts of possession, possession of drug paraphernalia, and false
identification. In addition, the Commonwealth agreed to waive the 3-year
mandatory minimum sentence and cap appellant’s minimum sentence at the
bottom of the standard range of the sentencing guidelines, or 24 months.
(Id. at 3.) Appellant was also RRRI eligible. (Id.)1 There was no
1
Recidivism Risk Reduction Incentive (“RRRI”) program, 61 Pa.C.S.A. § 4501
et seq.
-2-
J. S69030/14
agreement as to the maximum sentence appellant could receive. (Id. at 6-
7.)
The trial court accepted the plea and imposed a sentence of 24 months
to 7 years’ imprisonment. (Id. at 21.) Under RRRI, appellant would be
eligible for release on parole after 18 months. (Id. at 22-23.) On
December 2, 2013, appellant filed a post-sentence motion for modification of
sentence, requesting a sentence of 2 to 5 years’ imprisonment or, in the
alternative, to withdraw his plea.2 Appellant’s motion was denied on
December 18, 2013. A timely notice of appeal was filed on January 14,
2014. On January 15, 2014, appellant was ordered to file a concise
statement of errors complained of on appeal within 21 days pursuant to
Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A. Appellant filed his Rule 1925(b)
statement on February 14, 2014, and the trial court has filed a Rule 1925(a)
opinion.3
2
The 10th day following sentencing was Friday, November 29, 2013. As this
was the day after Thanksgiving, presumably the courthouse was closed. No one
suggests that appellant’s post-sentence motion was untimely and failed to toll
the appeal period. Therefore, we conclude that appellant’s post-sentence
motion filed the following Monday, December 2, 2013, was timely. See
1 Pa.C.S.A. § 1908 (excluding weekends and holidays from the computation of
time).
3
Appellant’s Rule 1925(b) statement was due on February 5, 2014. Therefore,
it was filed late. However, the trial court addressed the issues raised in its
Rule 1925(a) opinion and it is unnecessary to remand. See Commonwealth
v. Thompson, 39 A.3d 335, 340 (Pa.Super. 2012) (“When counsel has filed an
untimely Rule 1925(b) statement and the trial court has addressed those issues
we need not remand and may address the merits of the issues presented.”),
citing Commonwealth v. Burton, 973 A.2d 428, 433 (Pa.Super. 2009)
(en banc).
-3-
J. S69030/14
Appellant has presented the following issues for this court’s review:
A. Did the lower court err by denying
[appellant]’s request to withdraw his nolo
plea, post-sentence, as [appellant]’s plea was
not entered knowingly or voluntarily or that
[appellant] was innocent of the charge?
B. Whether the length of the maximum sentence
imposed by the court is manifestly excessive
given the totality of the circumstances,
[appellant]’s rehabilitative needs, and the
disproporti[o]nate reliance upon the need to
protect the community?
Appellant’s brief at 7 (capitalization omitted) (emphasis added).
“Preliminarily, we note that in terms of its effect upon a case, a plea of
nolo contendere is treated the same as a guilty plea.” Commonwealth v.
Leidig, 850 A.2d 743, 745 (Pa.Super. 2004), citing Commonwealth v.
Miller, 748 A.2d 733, 735 (Pa.Super. 2000).
Our law is clear that, to be valid, a guilty plea
must be knowingly, voluntarily and intelligently
entered. Commonwealth v. Shekerko, 432
Pa.Super. 610, 639 A.2d 810, 813 (1994). There is
no absolute right to withdraw a guilty plea, and the
decision as to whether to allow a defendant to do so
is a matter within the sound discretion of the trial
court. Commonwealth v. Muhammad, 794 A.2d
378, 382 (Pa.Super.2002). To withdraw a plea after
sentencing, a defendant must make a showing of
prejudice amounting to “manifest injustice.” Id.,
794 A.2d at 383. “A plea rises to the level of
manifest injustice when it was entered into
involuntarily, unknowingly, or unintelligently.”
Commonwealth v. Ingold, 823 A.2d 917, 920
(Pa.Super.2003). A defendant’s disappointment in
the sentence imposed does not constitute “manifest
injustice.” Muhammad, 794 A.2d at 383.
-4-
J. S69030/14
A court accepting a defendant’s guilty plea is
required to conduct an on-the-record inquiry during
the plea colloquy. Ingold, 823 A.2d at 920. The
colloquy must inquire into the following areas:
(1) Does the defendant understand the
nature of the charges to which he or she
is pleading guilty or nolo contendere?
(2) Is there a factual basis for the plea?
(3) Does the defendant understand that he
or she has the right to trial by jury?
(4) Does the defendant understand that he
or she is presumed innocent until found
| {
"pile_set_name": "FreeLaw"
} |
570 So.2d 829 (1990)
Charles Wesley EDWARDS
v.
STATE.
6 Div. 225.
Court of Criminal Appeals of Alabama.
August 3, 1990.
Rehearing Denied September 21, 1990.
William M. Dawson, Birmingham, for appellant.
Don Siegelman, Atty. Gen., and Sandra Lewis, Asst. Atty. Gen., for appellee.
BOWEN, Judge.
Charles Wesley Edwards was convicted of manslaughter and sentenced to 15 years' imprisonment. This appeal is from that conviction.
I.
Edwards contends that "all the evidence supports the contention that the shooting occurred during the course of a struggle over the gun and while he was immediately trying to unload it," and that the trial court committed error in refusing to instruct the jury on the legal principle of accident. Appellant's brief at 26.
Edwards submitted four written requested charges regarding accident.
"Charge No. 24
"I charge you that if the death of the deceased is the result of an accident, then you cannot convict the defendant of murder."
*830 "Charge No. 25
"I charge you that a killing done by accident cannot be the basis of a murder conviction. The laws recognizes that an accident may absolve the perpretrator of responsibility under the criminal law."
"Charge No. 26
"I charge you that the offense of manslaughter as charged in the indictment cannot be sustained if you are convinced from the evidence that the killing was done by accident, and not by the intention of the defendant."
"Charge No. 28
"I charge you that you cannot convict the defendant of either murder or manslaughter unless you find that the killing was done with the intention to take human life. Merely finding that the acts resulting in the loss of life were done recklessly, wantonly, carelessly or negligently will not support a finding of guilty of either murder or manslaughter as charged in the indictment."
As a technical matter, these charges were properly refused. Charges 24, 25, and 26 were properly refused because each charge failed to define the meaning of the word "accident." Gautney v. State, 284 Ala. 82, 89, 222 So.2d 175, 182 (1969); Terry v. State, 540 So.2d 782, 785 (Ala.Cr.App.1988), cert. denied, 540 So.2d 785 (Ala.1989). Charge No. 28 was also properly refused because it is an incorrect statement of the law. A person may commit the crime of reckless manslaughter. Ala.Code 1975, § 13A-6-3(a)(1). See § 13A-6-3 Commentary under "Wanton or Reckless Conduct"; § 13A-2-2(3) (defining "recklessly"). Furthermore, that charge is confusing. See Owen v. State, 255 Ala. 354, 357, 51 So.2d 541, 543 (1951).
Finally, each of the above requested charges was properly refused because each charge is not predicated on the evidence. "The refusal of a written instruction not hypothesized on a belief from the evidence is not error." Eslava v. State, 473 So.2d 1143, 1148 (Ala.Cr.App.1985).
However, in this case defense counsel did more than merely submit requested instructions to the trial court. When the trial court concluded its oral charge, defense counsel requested the court to charge on the law of accident asserting that this aspect had been omitted from the charge and thereby preserving this issue for review. Salazar v. State, 505 So.2d 1287, 1289-90 (Ala.Cr.App.1986).
"[Defense Counsel:] And then [the] next charges 24, 25, 26, and 28 deal with the concept of accident. We think that there wasn't any mention in the Court's oral charge in that these are correct statements of the law. That there should be some mention of the fact that if this happened accidentally or unintentionally then they would be entitled to find the defendant not guilty.
"I think the whole oral charge has omitted that factor.
"THE COURT: What was that last part now?
"MR. DAWSON [defense counsel]: The fact that the idea of accident or unintentional action actually causing the death. And if [that] is so, the jury should be instructed they would be entitled to find the defendant not guilty."
"Under Alabama law an accidental killing may support a conviction for murder, manslaughter, or negligent homicide, depending on the circumstances of the case." Ex parte Weems, 463 So.2d 170, 172 (Ala. 1984). Additionally, a truly accidental killing may result in no criminal responsibility. "A homicide by accident is an excusable homicide. It is an unintended homicide which occurs in the course of performing a lawful act, without criminal negligence." 2 C. Torcia, Wharton's Criminal Law § 136 (14th ed. 1979) (footnote omitted). "If by misfortune or misadventure, while in the performance of a lawful act, exercising due care, and without intention to do harm, human life is taken, the law will excuse. There must, however, be a concurrence of these facts, and the absence of any one will *831 involve in guilt." Tidwell v. State, 70 Ala. 33, 44-45 (1881), quoted in Turner v. State, 38 Ala.App. 73, 77, 77 So.2d 503, 506 (1954), cert. denied, 262 Ala. 704, 77 So.2d 506 (1955).
"Where the death of a human being is the result of accident or misadventure, in the true meaning of the term, no criminal responsibility attaches to the act of the slayer. Where it appears that a killing was unintentional, that the perpetrator acted with no wrongful purpose in doing the homicidal act, that it was done while he was engaged in a lawful enterprise, and that it was not the result of negligence, the homicide will be excused on the score of accident or misadventure. Such accident may be shown under a plea of not guilty, and if established, requires a verdict of not guilty. Action accompanied, not only with no intent to do harm, but also with a reasonable belief that no harm is possible, is clearly wanting in every essential element of crime. Under this rule, a homicide is excused when caused by the discharge of a gun or pistol which the slayer did not intentionally point at the deceased, and while he was not engaged in any unlawful act, and without any carelessness or negligence on his part, for example, where the slayer is hunting, or where the accused is lawfully attempting to take a gun from the victim and it is accidentally discharged, or where the accused is lawfully acting in self-defense and the victim meets death by accident, through the unintentional discharge of a gun, or the like.
"On the other hand, a homicide is not excusable on the ground of accident or misadventure unless it appears that the act of the slayer was lawful and free from negligence."
40 Am.Jur.2d Homicide § 112 (1968) (footnotes omitted).
"The defendant has the right to request instructions based upon any material hypothesis which the evidence in his favor tends to establish. Johnson v. State, 257 Ala. 644, 60 So.2d 818 (1952). In determining whether an instruction was supported by the evidence the question is not whether the Supreme Court or Court of Criminal Appeals believes the evidence, but simply whether such evidence was presented. Hunter v. State, 295 Ala. 180, 325 So.2d 921 (1975); Giles v. State, 366 So.2d 351 (Ala.Cr.App.1978)." Ex parte McGee, 383 So.2d 205, 206 (Ala.1980). "[E]very accused is entitled to have charges given, which would not be misleading, which correctly state the law of his case, and which are supported by any evidence, however weak, insufficient, or doubtful in credibility." Ex parte Chavers, 361 So.2d 1106, 1107 (Ala.1978). See also Stephens v. State, 552 So.2d 162 (Ala.1989); Hopson v. State, 414 So.2d 464 (Ala.1982). "`It is the inescapable duty of the trial judge to instruct the jurors fully and correctly on the applicable law of the case, and to guide, direct and assist them toward an intelligent understanding of the legal and factual issues involved in their search for truth.'" Grayco Resources, Inc. v. Poole, 500 So.2d 1030, 1033 (Ala.1986), quoting McClendon v. Reynolds Electrical and Engineering, 432 F.2d 320 (5th Cir.1970).
Although the question was one for the jury, Edwards presented a very plausible case that the shooting was accidental. While that was the only real issue in this case, the trial court never mentioned the term "accident" in his oral charge. Contrary to the State's argument, the trial court's instructions on the intent elements involved in murder, manslaughter, and criminally negligent homicide did not fairly and substantially cover the legal principles involved in accident.
The appellant's conviction must be reversed because the trial court refused to charge the jury on the legal principle of accident as it related to homicide. Because we must reverse on this issue, we do not consider the two other issues presented on this appeal. However, we note that while chief deputy coroner Jay Glass is qualified to testify to the cause of the victim's death, Woodard v. State, 401 So.2d 300, 303 ( | {
"pile_set_name": "FreeLaw"
} |
28 F.3d 686
40 Fed. R. Evid. Serv. 1336
UNITED STATES of America, Plaintiff-Appellee,v.Santos ACEVEDO, Defendant-Appellant.
No. 93-1536.
United States Court of Appeals,Seventh Circuit.
Argued March 30, 1994.Decided July 1, 1994.
Barry R. Elden, Asst. U.S. Atty., Terry Kinney (argued), Crim. Receiving, Appellate Div., Chicago, IL, for U.S.
Richard R. Mottweiler, James A. Graham (argued), Chicago, IL, for Santos Acevedo.
Before BAUER, FLAUM and RIPPLE, Circuit Judges.
FLAUM, Circuit Judge.
1
The defendant was convicted of three drug trafficking offenses after attempting to sell one and one-half kilograms of cocaine to an acquaintance-turned-government - informant. His arrest for the failed deal led to a search of an apartment (apparently his) where marijuana, cocaine and drug mixing equipment, among other things, were found. Relying upon the testimony of the informant, the testimony of a DEA drug expert, and physical evidence from the apartment, the district court at sentencing attributed to the defendant eleven kilograms of cocaine in addition to the drugs actually seized. He challenges both this determination and a evidentiary ruling that the district court made during his jury trial.
2
When arrested the defendant was in possession of a false Illinois driver's license that bore the defendant's photograph, listed a Social Security number of a deceased individual named Santos Acevedo, and was issued in the name of Santos Acevedo. (The government charged the defendant as Santos Acevedo because it was unable to ascertain the defendant's true identity.) This information was presented to the jury. The defendant argues that it constituted evidence of "other wrongs," inadmissible under Fed.R.Evid. 404(b) for its tendency to show that he was a person of bad character and therefore more likely to have committed the charged offenses.
3
The possession of false identification by a drug trafficking defendant at the time of the trafficking, however, is not merely generalized evidence of bad character. Rather, by indicating that the defendant wished to conceal his identity during ongoing involvement with drugs, it can help prove an element of the offense charged, namely that the defendant possessed a culpable state of mind. This is a legitimate use of such evidence, whether one conceives of it as outside the scope of Rule 404(b) because of the evidence's "intrinsic" value deriving from its specific relationship to the facts of the offense or as countenanced by Rule 404(b) because of its relevance in proving a non-character-related consequential fact--consciousness of guilt. See, e.g., United States v. Wilson, 11 F.3d 346, 353 (2nd Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 2142, 128 L.Ed.2d 870 (1994); United States v. Wint, 974 F.2d 961, 967 (8th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1001, 122 L.Ed.2d 151 (1993); United States v. Horton, 873 F.2d 180, 181 (8th Cir.1989); United States v. Kloock, 652 F.2d 492, 494-95 (5th Cir. Unit B 1981); cf. United States v. Silverman, 771 F.2d 1193, 1199-1200 (9th Cir.1985), withdrawn, 796 F.2d 339 (9th Cir.1986), and superseded on other grounds, 861 F.2d 571 (9th Cir.1988). Either way, the evidence is relevant to the defendant's state of mind entirely apart from how it reflects upon his character (and under current circuit law, the government is entitled to present "other acts" evidence to assist in proving such a material element of an offense even if it is not in dispute, see United States v. Maholias, 985 F.2d 869, 879 (7th Cir.1993); United States v. Chaimson, 760 F.2d 798, 803-04 (7th Cir.1985)). The district court insured that the evidence was properly so viewed by specifically instructing the jury as to the limited use to which it could be put. We also believe the danger of unfair prejudice arising from the disclosure of the defendant's possession of a false driver's license was slight. It was entirely within the district court's discretion to conclude that the jury would not draw unjustified inferences about the defendant as a drug dealer because of his willingness to assume the identity of a dead man and would not be so enraged by the nature of the act that it would disregard its mandate to decide the defendant's guilt or innocence only with respect to the offenses charged.
4
After the defendant was arrested, he consented to a search of an apartment of which he was apparently a resident. (Keys found on the defendant opened the apartment door and a utility bill found in the defendant's car bore the apartment's address). DEA agents found the apartment unoccupied (although loud music was playing inside). The apartment was spartanly furnished but did contain a loaded pistol and two scales (triple-beam and electronic) on a small table in the dining room, a shotgun in the closet, several bags of marijuana in the bedroom, and more drug-related items in the kitchen--specifically, there were two plastic bags containing a total of about 1.7 kilograms of high purity cocaine powder, next to the sink there was a white powder mixture alongside implements for cutting and mixing cocaine, in the trash inside a single bag there were twelve large ziplock plastic bags, of the same type as the bags found containing cocaine, and a green wrapper, all with white powdery residue on them, and around the kitchen there were other, smaller plastic bags. A DEA expert tested the powder inside one of the large bags for the presence of cocaine with positive result and testified that the other large bags smelled of cocaine. He also testified that in his opinion the green wrapper also contained cocaine residue and both it and the large ziplock bags were used, at one point or another, for storing or transporting kilogram quantities of cocaine. He stated that a red wrapper found next to one of the bags of cocaine was, like the green wrapper, used to package cocaine before it was cut. The agent opined that the apartment was used as a cocaine distribution hub and based on the packaging materials found concluded that at least fifteen kilograms of cocaine had passed through it.
5
The government also offered the testimony of the informant in support of its argument that at least fifteen kilograms of cocaine should be attributed to the defendant. The informant testified that he had had an ongoing drug-buying relationship with the defendant and in the course of that relationship had purchased from the defendant, or discussed the defendant's receipt of, very large quantities of cocaine, forty and forty-five kilograms on two occasions. The district court refused to fully credit the testimony of the informant (who was receiving favorable treatment from the government in exchange for his cooperation) because he had a long record of deceit, including lying to agents earlier in this investigation about the extent to which the defendant was the source of a separate eight kilogram delivery. However, the court did rely on the informant's testimony in combination with other evidence in the case, especially the content and tone of a recorded conversation between him and the defendant, to conclude that a drug-related relationship did exist. The court turned to the physical evidence from the apartment to ascertain the extent of the relationship and only accepted the informant's statements of amount to the extent they were so corroborated. Noting the sophisticated drug distribution equipment at the apartment and finding the testimony of the DEA agent credible, the court determined that the plastic baggies indicated by their size and the presence of cocaine residue that at least eleven additional kilograms of cocaine went through the apartment, and the court considered such to be relevant conduct under U.S.S.G. Sec. 1B1.3. The defendant was accordingly sentenced.
6
The defendant asserts that the district court's conclusions were clearly erroneous, United States v. Montgomery, 14 F.3d 1189, 1196 (7th Cir.1994); United States v. Sykes, 7 F.3d 1331, 1335 (7th Cir.1993); United States v. Rivera, 6 F.3d 431, 444 (7th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1098, 127 L.Ed.2d 411 (1994), in two respects: first, because they relied to some extent on the testimony of the untrustworthy informant and, second, because they were, at the end of the day, conjectural. The informant was indeed of dubious credibility. The district court recognized as much and thus placed no faith in those parts of his testimony that were not independently corroborated. This was entirely within its discretion to do, see, e.g., United States v. Cedano-Rojas, 999 F.2d 1175, 1180 (7th Cir.1993); United States v. Soria, 965 F.2d 436, 443 (7th Cir.1992), and our analysis must turn to whether the evidence as a whole supported the attribution to the defendant of the cocaine from | {
"pile_set_name": "FreeLaw"
} |
746 F.2d 1367
James JOHNSON, Appellant,v.A.L. LOCKHART, Director, Arkansas Department of Correction, Appellee.
No. 84-1250.
United States Court of Appeals,Eighth Circuit.
Submitted July 11, 1984.Decided Oct. 30, 1984.
William C. Harbour, Bryant, Ark., for appellant.
Steve Clark, Atty. Gen., and Michael E. Wheeler, Asst. Atty. Gen., Little Rock, Ark., for appellee.
Before HEANEY, BRIGHT and ROSS, Circuit Judges.
PER CURIAM.
1
James Johnson appeals from a denial of his petition for writ of habeas corpus under 28 U.S.C. Sec. 2254 (1982). For reversal Johnson argues the district court1 erred in accepting the Magistrate's2 findings, after an evidentiary hearing, that his guilty plea was knowingly and voluntarily made and with effective assistance of counsel.3 We affirm.
2
On May 11, 1979, Johnson entered a plea of guilty to first degree murder. He was represented by court-appointed counsel, who had met with him several times and conducted an independent investigation of the case. Counsel interviewed two witnesses who would have testified that they saw appellant shoot the victim, and two witnesses who placed appellant in the area of the shooting. Although the criminal information alleged that Johnson had committed two or more prior felonies, counsel determined that if the case went to trial, the prosecution would amend its information and prove four or more prior felonies, and that appellant had been represented by counsel at the time of each conviction. Johnson proposed the defense that he had been "hexed" or, in the alternative, that he was not at the scene of the crime.
3
Counsel advised Johnson that the prosecution had a strong case and that if he were convicted, he would receive a sentence of not less than fifty years nor more than life imprisonment in the Arkansas State Penitentiary and/or a possible fine of up to fifteen thousand dollars. Ark.Stat.Ann. Secs. 41-1502 and 41-1001 (1977) (amended 1981). In the alternative, he could plead guilty and be sentenced to forty years imprisonment. Johnson chose the plea agreement. Upon arrival at the Arkansas State Penitentiary, he learned that, because he was classified a fourth offender, he was ineligible for parole. He thereafter brought this petition for habeas corpus.
4
When a plea is challenged, the record must be examined to assure that the plea was entered voluntarily with sufficient awareness of the relevant circumstances and likely consequences and with the advice of competent counsel. Williams v. State of Missouri, 640 F.2d 140, 147 (8th Cir.1981). After reviewing the record, we find that, although the state trial judge might have interrogated appellant more thoroughly, the test enunciated in Williams was satisfied.
5
Johnson also argues that he was inadequately informed or actually misinformed about parole eligibility. In Pennington v. Housewright, 666 F.2d 329, 332 n. 5 (8th Cir.1981), cert. denied, 456 U.S. 918, 102 S.Ct. 1775, 72 L.Ed.2d 178 (1982), we noted that the voluntariness of a guilty plea could be established more conclusively if the defendant was informed of his eligibility for parole. However, in Hill v. Lockhart, 731 F.2d 568, 570 (8th Cir.1984), reh'g en banc granted, No. 83-1397 (May 10, 1984), aff'd by an equally divided court en banc, No. 83-1397 (September 20, 1984), we noted that the failure of a trial judge to explain the details of parole eligibility is insufficient grounds for ruling that a guilty plea is involuntary. We need not consider whether a different situation arises where an attorney misrepresents parole eligibility to his client because we find no evidence contrary to the magistrate's finding that counsel did not promise petitioner that he would be paroled.
6
Therefore, because the reasoning and conclusions of the Magistrate, as adopted by the district court, are not clearly erroneous, we affirm. See 8th Cir.R. 14.
1
The Honorable G. Thomas Eisele, Chief Judge, United States District Court, Eastern District of Arkansas
2
The Honorable Henry L. Jones, United States Magistrate, Eastern District of Arkansas
3
Although appellant raised several issues before the Magistrate and raises two issues before this Court, we believe both issues may be condensed
| {
"pile_set_name": "FreeLaw"
} |
125 F.2d 493 (1942)
PARRY
v.
BACHE et al.
No. 10042.
Circuit Court of Appeals, Fifth Circuit.
February 5, 1942.
Charles W. Zaring, of Miami, Fla., for appellant.
Melvin J. Richard, of Miami Beach, Fla., for appellees.
Before FOSTER, HUTCHESON, and HOLMES, Circuit Judges.
*494 HUTCHESON, Circuit Judge.
Defendants, citizens of the city and state of New York, and resident therein, are co-partners in a banking and brokerage business with their principal office in New York and branches and agencies in other cities and states. Plaintiff, a resident citizen of Florida and a customer of defendants, by purchases of listed stocks, arranged through their Miami, Florida office, brought this suit in the state court for an accounting with reference to stocks for which he had given purchase and sale orders to defendants.[1] Defendants removed the cause into the Federal court and alleging that the suit was upon "an issue referable to arbitration under an agreement in writing for such arbitration",[2] moved for[3] and after hearing on "affidavits filed and proof heard", were granted a stay of the trial of the action until such arbitration has been had in accordance with the terms of the agreement.[4]
Plaintiff here, insisting that the invoked statute is without application, makes seven points against the appealed order: (1) *495 That the agreement is not, within the meaning of the Statute, in writing; (2) that there is not sufficient signing by the partners under New York law to make the arbitration agreement binding; (3) that there is not sufficient proof of the purchase and sale of stocks alleged to constitute interstate commerce; (4) that assuming the purchase and sale this did not constitute such commerce; (5) that the accounting plaintiff sued for is not a controversy within the arbitration clause; (6) that arbitration goes to the remedy, the remedy to be applied is determined by the law of the forum, and under Florida law the arbitration agreement is not enforceable; (7) plaintiff, under Florida law, had a defense to the agreement, while the suit was in the state court and its removal could not deprive him of this defense.
We cannot agree with plaintiff. It is perfectly clear that the agreement for arbitration was in writing,[5] and that it was made and acted on by both plaintiff and defendants under circumstances which bound them both to its terms as written, including Clause 10 for arbitration. It is also too clear on the record for any question to be made of it that the matter in suit involved orders by mail and telegraph for, and actual purchases and sales of, stock in interstate commerce.[6] Finally, it is equally clear that; the case involves a controversy covered by the arbitration agreement; that having been removed to the federal court, it proceeds as though it had been originally commenced there,[7] that the invoked statute being remedial,[8] controls the procedure in the federal court; and that the view the state court might take of the arbitration agreement is wholly immaterial.
In this view, the agreement being clearly one "evidencing a transaction involving commerce", we do not undertake to determine whether as ably argued,[9] by appellees, the invoked section of the arbitration act is broader than the preceding sections and, not limited as those are, to maritime transactions and those involved in commerce, extends to all issues "referable to arbitration under an agreement in writing for such arbitration."
The judgment granting the stay was right. It is affirmed.
NOTES
[1] It was alleged: (1) That defendants were engaged in the business of buying and selling stocks and other securities for customers upon commission and in furnishing customers facilities for such purchase and sale; (2) that plaintiff gave, on April 16th and 20th, 1940, buying orders and made margin deposits with defendants; (3) that it was defendants' duty to actually purchase the stocks and hold them until sold or delivered on plaintiff's order; (4) that defendants accepted the orders and represented that they had purchased the stock; (5) that to protect himself from losses, plaintiff, from time to time, placed stop loss orders with defendants but on information and belief, they ignored them and sold the stocks after a heavy decline; (6) that plaintiff is without exact knowledge of the state of his account or the price at which the stocks were sold or whether defendants actually purchased the stocks. There was a prayer, for an accounting, and a judgment in accordance therewith.
[2] The agreement relied on is the regular General Customers Agreement. Signed by plaintiff, it requests the opening of an account for the purchase of stocks; agrees to be bound by the provisions of the Customers Margin Agreement attached, and also signed by plaintiff; agrees that all transactions for his account are to be subject to the rules of the exchange where transactions are executed, makes further agreements, and concludes with Section 10, the arbitration clause: "This agreement and its enforcement shall be governed by the laws of the State of New York. Any controversy between you and me arising out of, or relating to this contract, or the breach thereof, shall be determined by arbitration in accordance with the rules, then obtaining, of either the Arbitration Committee of the Chamber of Commerce of the State of New York, or the American Arbitration Association, or the Arbitration Committee of the New York Stock Exchange, as I may elect. If I do not make such election by registered mail addressed to you at your main office within five days after receipt of notification from you requesting such election, then you may make such election. Any arbitration hereunder shall be before three arbitrators and the award of the arbitrators, or a majority of them, shall be final, and judgment upon the award rendered may be entered in any Court, State or Federal, having jurisdiction. I agree that notices of, and in, any such arbitration may be sent to me by mail, and waive personal service thereof."
[3] The motion attached a photostatic copy of the agreement for arbitration between plaintiff and defendants, alleged that plaintiff had refused, though requested by defendants to make election of an arbitration committee, to arbitrate pursuant to the Customers Agreement and defendants had elected the American Arbitration Association. Attached to the motion were the correspondence requesting and declining arbitration and affidavits, of one of the partners, of one William Graham, employee in the margin department of the New York office, and of the manager of and a customer's man in the branch office in Miami. Graham's affidavit, supported by affidavits of five of the employees, contained a full statement of the plaintiff's account and showed that the stocks had been purchased as ordered and sold because not sufficiently margined, that plaintiff's account was credited with the proceeds of the sales, and a check for the balance remaining was transmitted to him. The Miami affidavits set out that plaintiff had made his dealings through the Miami office of defendant's firm and that these orders had been transmitted by telegraph to the New York office and then transmitted to a representative of the firm on the floor of the New York stock exchange.
[4] Stay of proceedings where issue therein referable to arbitration.
"If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration." 9 U.S.C.A. § 3.
[5] Krauss Bros. Lumber Co. v. Louis Bossert & Sons, 2 Cir., 62 F.2d 1004; 12 Am.Jur. 609; Cousens v. Watson, 130 Me. 456, 157 A. 232; Klapp v. Bache & Co., 229 App.Div. 415, 242 N.Y.S. 155; National Cash Register Co. v. Lesko, 77 Conn. 276, 58 A. 967; Reeves Furniture Co. v. Simms, Tex.Civ.App., 59 S.W.2d 262; National Bank of Commerce of Houston v. Moody, Tex.Civ.App., 90 S. W.2d 279; McDermott v. Mahoney, 139 Iowa 292, 115 N.W. 32, 116 N.W. 788.
[6] Securities Exchange Act 1934, 15 U. S.C.A. §§ 78b and 78c, 17; Securities and Exchange Commission v. Torr, D. C., 15 F.Supp. 315; Cerritos Gun Club v. Hall, 9 Cir., 96 F.2d 620; 15 C.J.S., Commerce, § 17, p. 277; Newfield v. Ryan, 5 Cir., 91 F.2d 700; Oklahoma-Texas Trust v. Securities and Exchange Commission, 10 Cir., 100 F.2d 888; Carter v. Carter Coal Co., 298 U.S. 238, 56 S.Ct. 855, 80 L.Ed. 1160.
[7] 28 U.S.C.A. § 81; Savelle v. Southern Railway Company, 5 Cir., 93 F.2d 377, 114 A.L.R. 1261.
[8] Beale, A Treatise on the Conflict of Laws, pp. 1245-46.
[9] Cf. Marine Transit v. Dreyfus, 284 U.S. 263 | {
"pile_set_name": "FreeLaw"
} |
[J-19-2017][M.O. – Baer, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
ROY H. LOMAS, SR., D/B/A ROY LOMAS : No. 87 MAP 2016
CARPET CONRACTOR, :
: Appeal from the Order of the Superior
Appellee : Court dated 12/21/15 at No. 2391 EDA
: 2011 affirming the judgment of the
v. : Court of Common Pleas of Montgomery
: County, Civil Division, entered on
: 8/16/11 at No. 2000-05929
JAMES B. KRAVITZ, CHERRYDALE :
CONSTRUCTION CO., ANDORRA :
SPRINGS DEVELOPMENT, INC., AND :
KRAVMAR, INC. F/K/A EASTERN :
DEVELOPMENT ENTERPRISES INC., :
:
Appellants : ARGUED: March 8, 2017
DISSENTING OPINION
CHIEF JUSTICE SAYLOR DECIDED: September 28, 2017
Although I agree with the majority that a motion for recusal must be promptly
filed, my view diverges from the majority’s application of the “earliest possible moment”
standard and its conclusion that Appellants’ filing was untimely. Majority Opinion, slip
op. at 15. I believe that, in the circumstances presented, Appellants’ submission was
not late, and further, they demonstrated an appearance of impropriety, warranting the
recusal of the full Montgomery County bench.
Beginning with the “earliest possible moment” precept, the language of this
standard, if taken literally, suggests that an immediate response is required, akin to an
evidentiary objection, which I believe is problematic in the recusal context. For
example, the Superior Court’s Opinion in Support of Affirmance (“OISA”) in this matter
indicated that Appellants were required to halt the proceedings and file a recusal motion
immediately following Judge Branca’s testimony that revealed his financial interest,
rather than proceed with the other witnesses who were present and prepared to testify
that day. See Lomas v. Kravitz, 130 A.3d 107, 120 (Pa. Super. 2015) (en banc)
(OISA).1 In this respect, the majority’s reasoning does not elaborate what
considerations or circumstances generally inform the timeliness analysis. Instead, it
merely recites the number of elapsed days and observes that the parties’ evidentiary
presentations had concluded.
As the United States Supreme Court has cautioned, a request for recusal “should
not be made lightly.” Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 826-27, 106 S. Ct.
1580, 1588 (1986) (citing Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S. Ct. 149
(1923) (explaining that recusal motions should be filed with “care and good faith”)); In re
Crawford's Estate, 307 Pa. 102, 109, 160 A. 585, 587 (1931) (“The charge of
disqualification is serious, and should not be made lightly or frivolously.”). “[A] request
for the disqualification of a trial judge is a most serious undertaking which should not be
pursued absent thorough factual investigation and legal research.” Johnson v. Dist.
Court In & For Jefferson Cty., 674 P.2d 952, 957 (Colo. 1984).
Even though judges are presumed to be impartial arbiters and conscientious of
potential biases and appearances of such, some practitioners express reservations that
seeking recusal will be taken personally by the judge to the detriment of the client and
counsel. See Debra Lyn Bassetta, Rex R. Perschbacher, The Elusive Goal of
1
The Superior Court OISA also indicated that Appellants had an opportunity to seek
recusal when they were informed of Judge Branca’s prior representation. See Lomas,
130 A.3d at 120 (OISA). I agree with the majority, however, that Appellants were not
aware of all the facts relevant to their recusal motion until Judge Branca testified on
September 6, 2007. See Majority Opinion, slip op. at 18.
[J-19-2017][M.O. – Baer, J.] - 2
Impartiality, 97 IOWA L. REV. 181, 204 (2011) (acknowledging attorneys’ concerns that
the suggestion of disqualification “has the potential to antagonize the challenged judge,
either consciously or subconsciously, with the result that the moving litigants and their
counsel may suffer” (quoting RICHARD E. FLAMM, JUDICIAL DISQUALIFICATION: RECUSAL
AND DISQUALIFICATION OF JUDGES §1.7, at 18 (2d ed. 2007))). Thus, the perceived
potential for retribution may cause counsel to be reluctant to file a motion in the first
instance. See Jeffrey Cole, Jilting the Judge: How To Make and Survive a Motion To
Disqualify, 34 LITIGATION, no. 2, Winter 2008, at 48 (“Lawyers are as quick to see bias as
they are reluctant to file disqualification motions.”). Additional reluctance may stem from
a lack of substantial information supporting the request, apart from speculation and
hearsay. See Amanda Frost, Keeping Up Appearances: A Process-oriented Approach
to Judicial Recusal, 53 U. KAN. L. REV. 531, 568-69 (2005) (observing that, in many
instances, a party will only possess uncorroborated information and noting that there
are rarely procedures for investigating speculation or gossip, thus resulting in a
reluctance to advance a disqualification claim).
Further, there is arguably some procedural ambiguity in Pennsylvania’s recusal
jurisprudence that may result in requests not being sought with absolute immediacy.
Relative to initiating a recusal request, the case law has variously referred to an
“application by petition” or the filing of a “motion,” Reilly by Reilly v. SEPTA, 507 Pa.
204, 220, 489 A.2d 1291, 1299 (1985), as well as the lodging of an “objection,”
Goodheart v. Casey, 523 Pa. 188, 199, 565 A.2d 757, 763 (1989); see also Reilly, 507
Pa. at 222, 489 A.2d at 1300 (“In order to preserve an issue for appeal, [the party has]
[J-19-2017][M.O. – Baer, J.] - 3
to make a timely, specific objection at trial and raise the issue on post-trial motions.”
(emphasis in original)).2
Although this historical lack of consistency may be attributable to deviations in
nomenclature, it is notable that there are no statutory or rules-based procedures for
recusal in Pennsylvania, as there are in other jurisdictions.3 See, e.g., 28 U.S.C. §144
(“Bias or prejudice of judge”), §455 (“Disqualification of justice, judge, or magistrate
judge”); ALASKA STAT. §22.20.022 (“Peremptory disqualification of judge”); Alaska
R.Crim.P. 25 (“Judge—Disqualification or Disability”); Colo.R.C.P. 97 (“Change of
Judge”); Fla.R.Jud.Admin. 2.330 (“Disqualification of Trial Judges”); Ind. R. Trial P. 76
(“Change of venue”). The only written directive that arises in the recusal context comes
by way of reference to Rule 2.11 of the Code of Judicial Conduct, which has been
employed to inform the recusal standard. See Goodheart, 523 Pa. at 200, 565 A.2d at
763 (suggesting that a judge’s self-evaluation of impartiality is guided by the factors
provided in the Code of Judicial Conduct); Kenneth S. Kilimnik, Recusal Standards for
Judges in Pennsylvania: Cause for Concern, 36 VILL. L. REV. 713, 726 (1991) (“Since
2
Tangentially, there is some criticism of the Reilly Court’s recusal analysis (which later
cases frequently referenced) insofar as it relied on In re Crawford’s Estate, 307 Pa. 102,
160 A. 585 (1931). Specifically, Reilly adopted the recusal procedures from Crawford’s
Estate without acknowledging that the Crawford’s Estate Court’s explication pertained to
the then-existing recusal statutes, which had been repealed prior to the Reilly decision.
| {
"pile_set_name": "FreeLaw"
} |
UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS
UNITED STATES
v.
Airman Basic WILLIAM P. SMITH JR.
United States Air Force
ACM 38728
17 May 2016
Sentence adjudged 12 July 2014 by GCM convened at Keesler Air Force
Base, Mississippi. Military Judge: Shaun S. Speranza.
Approved Sentence: Bad-conduct discharge.
Appellate Counsel for Appellant: Major Isaac C. Keenen.
Appellate Counsel for the United States: Lieutenant Colonel Roberto
Ramirez; Major Mary Ellen Payne; and Gerald R. Bruce, Esquire.
Before
MITCHELL, DUBRISKE, and BROWN
Appellate Military Judges
OPINION OF THE COURT
This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
under AFCCA Rule of Practice and Procedure 18.4.
BROWN, Judge:
At a general court-martial composed of officer and enlisted members, Appellant
was convicted, contrary to his pleas, of two specifications of communicating indecent
language, in violation of Article 134, UCMJ, 10 U.S.C. § 934. 1 The court sentenced
Appellant to a bad-conduct discharge.
1
Appellant was found not guilty of abusive sexual contact, aggravated sexual contact, an additional specification of
indecent language, assault consummated by a battery, and disorderly conduct, in violation of Articles 120, 128, and
134, UCMJ, 10 U.S.C. §§ 920, 928, 934. These offenses all involved the same alleged victim, who was not the named
victim in the indecent language specifications Appellant was convicted of at trial.
On appeal, Appellant contends: (1) the evidence is factually insufficient to sustain
one of the indecent language convictions, (2) the military judge’s standard beyond-a-
reasonable-doubt instruction was erroneous, and (3) the prosecutor erred in referencing that
purported erroneous instruction during findings argument. We disagree and affirm the
findings and sentence.
Background
Appellant was an Airman Basic (E-1) assigned to Keesler Air Force Base (AFB),
Mississippi, as a technical school student. Both indecent language specifications involved
sexually explicit comments he made to female technical school students in March and April
of 2013.
As to the specific incident relevant to this appeal, it occurred on Keesler AFB in the
food court at the Base Exchange (BX). On the afternoon of 3 April 2013, the victim and a
female friend, A1C VC, went to a sandwich shop at the BX. They were both in civilian
clothes and sat down in a less populated portion of the food court to eat their meal.
Appellant, who was in uniform at the time, approached them and sat down at a table
next to them. Appellant was approximately four to five feet away. Neither the victim nor
A1C VC knew Appellant. Appellant asked them their names, where they were from, and
if they had boyfriends. When Appellant learned that A1C VC was engaged, he focused his
comments and questions more toward the victim. The tone of Appellant’s conversations
to this point was casual and flirty.
Appellant’s tone, however, changed when a male friend of Appellant arrived and
sat down across from him. At a volume loud enough to be heard by both the victim and
A1C VC, Appellant told his friend, “Doesn’t she look like something that you would want
to take to a hotel room, tie and tape her up, and have sex with her until she begs, and then
maybe if she begs you to stop, then maybe you will stop.” He continued by saying he
wanted to take pictures of the victim while she was tied up and post the pictures on
Facebook with a comment saying, “This is mine.” While Appellant was talking, he was
glancing toward the victim and making eye contact. The victim testified she believed these
comments were directed toward her—both because they referenced her and Appellant was
making eye contact with her while he was talking. The victim and A1C VC were both
shocked and offended by the comments. The victim was scared by Appellant’s comments.
Factual Sufficiency
Although Appellant does not contest that he made the statements attributed to him,
he argues the statements were not indecent for two reasons: (1) Appellant was speaking to
his friend rather than the victim, and (2) the statement was not indecent considering the Air
Force community standards as a whole.
2 ACM 38728
We review issues of factual sufficiency de novo. Article 66(c), UCMJ, 10 U.S.C. §
866(c); United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).
The test for factual sufficiency is “whether, after weighing the evidence in the record
of trial and making allowances for not having personally observed the witnesses, [we are]
convinced of the accused’s guilt beyond a reasonable doubt.” United States v. Turner, 25
M.J. 324, 325 (C.M.A. 1987). In conducting this unique appellate role, we take “a fresh,
impartial look at the evidence,” applying “neither a presumption of innocence nor a
presumption of guilt” to “make [our] own independent determination as to whether the
evidence constitutes proof of each required element beyond a reasonable doubt.”
Washington, 57 M.J. at 399.
Uttering indecent language is not specifically enumerated in the UCMJ as a criminal
offense, but it is punishable under Article 134, UCMJ. In the Manual for Courts-Martial,
United States (MCM), the President prescribed the elements which the Government was
required to prove beyond a reasonable doubt in order to establish its case against Appellant:
(1) That the accused orally or in writing communicated to
another person certain language;
(2) That such language was indecent; and
(3) That, under the circumstances, the conduct of the accused
was to the prejudice of good order and discipline in the armed
forces or was of a nature to bring discredit upon the armed
forces.
MCM, pt. IV, ¶ 89.b. (2012 ed.); see also Department of the Army Pamphlet (D.A. Pam.)
27-9, Military Judges’ Benchbook, ¶ 3-89-1.c. (1 January 2010).
Indecent language is defined as, “that which is grossly offensive to modesty,
decency, or propriety, or shocks the moral sense because of its vulgar, filthy, or disgusting
nature, or its tendency to incite lustful thought.” MCM, pt. IV, ¶ 89.c. It must also be
calculated to corrupt morals or incite libidinous thoughts. United States v. Brinson, 49 M.J.
360, 364 (C.A.A.F. 1998) (quoting United States v. French, 31 M.J. 57, 60 (C.M.A. 1990)).
The language must be evaluated in the circumstances under which the charged language
was communicated. See id. (holding profanity did not constitute indecent language where
it was intended to express rage rather than sexual desire).
To be indecent, the language must violate community standards. MCM, pt. IV,
¶ 89.c. When determining whether certain language violates community standards, it is
appropriate to consider the larger Air Force worldwide community. United States v. Baker,
57 M.J. 330, 339 (C.A.A.F. 2002).
3 ACM 38728
Here, Appellant had only met the victim moments before he made the statement.
He used the language in a public eating area, on base, while he was in uniform. Based on
their interactions to that point, there was nothing to suggest that the victim welcomed the
statement or considered it appropriate. Appellant, though ostensibly talking to his friend,
made eye contact with the victim as he made the statement and talked loudly enough for
the victim to hear him. This was not a private conversation between friends that was
inadvertently overheard by a passerby—it was a sexually charged statement that Appellant
directed toward both his friend and the victim. It was a statement calculated to corrupt
morals and incite libidinous thoughts.
Appellant, both at trial and on appeal, further argued that these statements did not
violate community standards of decency. To this end, the Defense introduced evidence of
sexually explicit books, songs, magazines, and movies that were sold at the BX. Appellant
also points to the testimony of several witnesses, to include A1C VC, regarding their
hearing similar sexual comments by others in the past. Despite Appellant’s reliance on this
testimony, there were few specifics about these other purportedly similar comments and
no testimony regarding the context of when and where the statements were made.
We are convinced that Appellant’s language in this case, considering the facts and
circumstances surrounding its utterance, violated the standards | {
"pile_set_name": "FreeLaw"
} |
430 S.W.2d 536 (1968)
The VECTOR CORPORATION and Miltex Oil and Gas Corporation, Appellants,
v.
FIRST STATE BANK & TRUST COMPANY OF PORT LAVACA, Texas, Charles H. Stevenson, Jr., and Charles H. Stevenson, Jr., Trustee, Appellees.
No. 4703.
Court of Civil Appeals of Texas, Waco.
June 20, 1968.
Rehearing Denied July 11, 1968.
*537 Kleberg, Mobley, Lockett & Weil, J. Lev Hunt, Corpus Christi, Rochelle & Gandy, Dean M. Gandy, Dallas, for appellants.
Sorrell, Anderson & Porter, Wm. R. Anderson, Jr., Butler, Schraub & Gandy, Roger Butler, Corpus Christi, for appellees.
OPINION
WILSON, Justice.
The bank sued the Vector Corporation, Miltex Oil & Gas Corporation and Charles Stevenson, individually and as trustee, on a 1965 promissory deed of trust note for $100,000 payable to the bank. It was signed "Charles H. Stevenson, Jr., individually and as Trustee". The trial court, after a non-jury trial, rendered judgment against all defendants jointly and severally, granting Stevenson judgment over against Vector and Miltex.
We first dispose of appellants' complaint of judgment for Stevenson, individually, against Vector and Miltex. There was no pleading or evidence to support the judgment, and it is vacated.
The chief question in this case is whether Vector and Miltex are liable to plaintiff bank for payment of the note which was executed solely by Stevenson, individually and as trustee.
The only cause of action alleged by the bank was that to enforce payment of the note. It alleged reasons for liability of the two corporations on the note. It asserted that Stevenson was president and manager of Vector and Miltex, and was owner of one-third of the capital stock of one and 18½% of the stock of the other; that the corporations "authorized or acquiesced" in and ratified Stevenson's acts in making the loan represented by the note; that he held legal title to the property described in the deed of trust securing payment of the note as trustee for the corporations; that their operations, income and properties "were commingled"; that Stevenson subsequently assigned most of the properties to Miltex; that the corporations were "estopped to deny they are indebted to plaintiff by reason of the above described note", having "enjoyed the fruits thereof," using the proceeds to pay corporate debts.
Vector and Miltex are not liable on the note, in our opinion.
Art. 5932, Sec. 18, Vernon's Ann.Civ. Stat., (Sec. 18, Uniform Negotiable Instruments Act), in effect when the note was executed, provides: "No person is liable on the instrument whose signature does not appear thereon, except as herein otherwise expressly provided."
Appellee relies on Secs. 19 and 20 of Art. 5932 as constituting modifications of Sec. 18 which permit recovery. Sec. 19, however, merely authorizes the "signature" of a party to be made by an agent. It concerns the name of a party placed on the instrument by another. Sec. 20, on the other hand, relates only to liability of the signer; not that of a non-signatory party.
Parol evidence was not admissible to establish liability beyond the terms of the instrument where the cause of action asserted is on the note. The instrument "cannot be made the obligation of one *538 not a party by extrinsic proof, regardless of what are the real facts." By the parol evidence rule the evidence "is inadmissible because it is an attempt to add to the terms of a written instrument." Farrier v. Hopkins, 131 Tex. 75, 112 S.W.2d 182, 183.[1]
The bank insists also that parol evidence is admissible because there is an "ambiguity" in the note. The ambiguity claimed is that the note does not disclose for whom Stevenson was trustee. "Ambiguity" relates to language of doubtful or uncertain meaning. 3 Words and Phrases, "Ambiguous." There is no ambiguity present.
The evidence is undisputed that the bank relied on Stevenson personally to pay the note. The ledger sheets and accounting records of the bank show Stevenson alone as being liable on the notes. No writing in the bank's records evidenced liability of Vector or Miltex. The bank's evidence, however, made it undisputed that the corporations were disclosed principals and the bank was fully cognizant of the relationship between them and Stevenson. The president of the bank who made the loan testified the loan represented by the note was not made to the corporations; that they were not "primary obligors on the note"; that they were not "guarantors"; that they were "not obligated on the note directly"; that Stevenson was the one the bank was "looking to"; that until just before suit "it had not even occurred" to the president that "the corporation might be liable", or that "the corporation owed the money". He requested that Stevenson sign the note individually and as trustee. The president of appellee bank testified, "I much prefer not to have a loan in a corporate name; paper work that's involved, resolutions, etc. I much prefer to deal through an individual."
Under these facts, as Justice Gaines said, the principal being disclosed and the note showing that Stevenson, the agent, is bound, the bank "elected in the contract itself to look to the agent, and the principal is not liable." Heffron v. Pollard, 73 Tex. 96, 11 S.W. 165, 166. The basis for the rule was there stated to be that if plaintiffs knew when the contract was made that it was made for the benefit of a disclosed principal, "the writing showed that they had elected to look to the agent for its performance, and parol evidence was not admissible to vary the writing to show that they did not so elect." The rule is "very different from the case of an undisclosed principal", the Supreme Court there said. See Farrier v. Hopkins, 131 Tex. 75, 112 S.W.2d 182; First State Bank of Riesel v. Dyer, 151 Tex. 650, 653, 254 S.W.2d 92, 95; Garcia v. Yzaguirre, Tex.Com. App., 213 S.W. 236, 240; Day Ranch Co. v. Hubert & Woodward, Tex.Civ.App., 32 S.W.2d 252, writ ref.
In our opinion appellants' contention is correct also that judgment against Vector and Miltex was erroneous because the evidence is undisputed that the trust asserted by the bank was an express trust relating solely to realty. It was not a resulting or constructive trust. Under Art. 7425b-7, Vernon's Ann.Civ.Stat., parol evidence was not admissible to establish such an express trust. See Sevine v. Heissner, 148 Tex. 345, 224 S.W.2d 184; Morrison v. Farmer, 147 Tex. 122, 213 S.W.2d 813.
*539 The bank says the judgment is sustainable on its theories of ratification and estoppel. There are equitable defenses. Since they are defensive in character, they do not create liability or a cause of action. Their function is "to preserve rights, not to bring into being a cause of action." Southland Life Ins. Co. v. Vela, 147 Tex. 478, 217 S.W.2d 660, 663; Cotton Belt State Bank v. Roy H. Hatcheries, Tex. Civ.App., 351 S.W.2d 325. They do not constitute a cause of action or basis for one. Sessions v. Whitcomb, Tex.Civ.App., 329 S.W.2d 470, writ ref. n. r. e.; Jones v. Texas Gulf Sulphur Co., Tex.Civ.App., 397 S.W.2d 304, writ ref. n. r. e., and authorities cited. We have considered the bank's other theories of recovery, and none of them, in our opinion, is tenable.
We do not reach appellants' other points.
Appellee Stevenson has filed a brief in which he presents two "cross-points" asserting error in denying him judgment against one Becker who is not a party (either appearing or served) to the suit.
An appellee's right to present cross-points, where he has not perfected a separate appeal, as is the case here, is limited to those which "affect the interest of appellant or bear upon matters presented by the appeal." He may not, as appellee, use cross-points to assume the position of appellant to complain of a portion of the judgment against him in favor of one who is not a party to the appeal. Bowman v. Puckett, Tex.Civ.App., 185 S.W.2d 228, 231, syl. 5, approved, 144 Tex. 125, 188 S.W.2d 571, 575; and see Jackson v. Ewton, Tex. Sup., 1967, 411 S.W.2d 715, 717; opinion of Subcommittee, vol. 4, Vernon's Ann. Rules of Civil Procedure, p. 642. We have no jurisdiction of the second and third cross-points. We overrule the first.
The judgment is reversed and here rendered that appellee Stevenson, individually and as trustee, and appellee bank take nothing as against Vector and Miltex. Costs are adjudged against appellees. The judgment in other respects is affirmed.
NOTES
[1] Gulf Liquid Fertilizer | {
"pile_set_name": "FreeLaw"
} |
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
NORMAND P. RAINVILLE,
Claimant-Appellant,
v.
SLOAN D. GIBSON,
Acting Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2014-7052
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 13-70, Judge Coral Wong Pietsch.
______________________
Decided: July 11, 2014
______________________
NORMAND P. RAINVILLE, of Apple Creek, Ohio, pro se.
RICHARD P. SCHROEDER, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent-
appellee. With him on the brief were STUART F. DELERY,
Assistant Attorney General, ROBERT E. KIRSCHMAN, JR.,
Director, and CLAUDIA BURKE, Assistant Director. Of
counsel on the brief were Y. KEN LEE, Deputy Assistant
General Counsel, and CHRISTINA GREGG, Attorney, United
2 RAINVILLE v. GIBSON
States Department of Veterans Affairs, of Washington,
DC.
______________________
Before MOORE, O’MALLEY, and WALLACH, Circuit Judges.
PER CURIAM.
Normand P. Rainville appeals from the judgment of
the United States Court of Appeals for Veterans Claims
(Veterans Court) affirming the decision of the Board of
Veterans Appeals (Board) denying Mr. Rainville’s claim
for service connection for a cervical spine disability. We
dismiss this appeal for lack of jurisdiction.
BACKGROUND
Mr. Rainville served in the United States Army from
1966 to 1970. In 1967, Mr. Rainville suffered a mild
concussion after colliding with the wing of a stationary
missile. He was hospitalized for two days, but his skull X-
rays were reported as normal. In 1969, Mr. Rainville
complained of muscle soreness in his back after he was in
a motor vehicle accident. The X-rays following the inci-
dent were negative for fractures. Mr. Rainville’s 1970
service separation examination was normal and he did
not report any neck pain on the health history question-
naire.
In April 2007, Mr. Rainville was diagnosed with cervi-
cal spondylotic myelopathy and degenerative joint disease
of the cervical spine following an X-ray and magnetic
resonance image (MRI). The X-ray and MRI did not
reveal any fracture or dislocation of the cervical spine.
Following his diagnosis, Mr. Rainville filed a claim for
service connection for conditions which he characterized
as resulting from his 1967 in-service collision with the
wing of the stationary missile. He alleged that the dam-
age to his cervical spine diagnosed in 2007 was a result of
a long-term progressive degeneration triggered by the
RAINVILLE v. GIBSON 3
missile wing collision. Mr. Rainville supported his claim
with a statement by his physician noting that it was
possible that Mr. Rainville’s degenerative condition was
incited or worsened by prior injuries. The physician’s
statement also explained that he could not definitively
determine whether this was so without appropriate
medical records from the time of injury.
The Board denied Mr. Rainville’s claim. It relied up-
on Mr. Rainville’s medical history as well as various
medical opinions obtained in 2010 and 2012 in concluding
that Mr. Rainville’s neck condition was not service-
connected. The Veterans Court affirmed. It determined
that there was a plausible basis for the Board’s decision
and that the Board provided an adequate basis for its
conclusions. Mr. Rainville appeals.
DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. We have jurisdiction to
review a decision of the Veterans Court “with respect to
the validity of a decision of the Court on a rule of law or of
any statute or regulation . . . or any interpretation thereof
. . . that was relied on by the [Veterans Court] in making
the decision.” 38 U.S.C. § 7292(a) (2012). We lack juris-
diction to review a “challenge to a factual determination”
or a “challenge to a law or regulation as applied to the
facts of a particular case.” 38 U.S.C. § 7292(d)(2).
On appeal, Mr. Rainville makes two arguments.
First, he argues that the Veterans Court erred in not
applying the “benefit of the doubt rule” to his case. Appel-
lant’s Informal Br. at 1. Second, he argues that the Board
erred in failing to obtain the X-rays from his 1967 missile
wing collision. Appellant’s Informal Br. Attach. 1 at 1–2.
Mr. Rainville’s argument concerning the application
of the “benefit of the doubt rule” is a factual challenge
over which we lack jurisdiction. That rule states that,
4 RAINVILLE v. GIBSON
“[w]hen there is an approximate balance of positive and
negative evidence regarding any issue material to the
determination of a matter, the Secretary shall give the
benefit of the doubt to the claimant.” 38 U.S.C. § 5107(b).
The Veterans Court affirmed the Board’s fact finding that
the preponderance of the evidence did not support enti-
tlement to service connection. Because the evidence was
not in equipoise, the Veterans Court held that the Board
did not err in failing to apply the “benefit of the doubt
rule.” Importantly, Mr. Rainville does not raise any
challenge to the lawfulness or interpretation of this rule.
Cf. Fagan v. Shinseki, 573 F.3d 1282, 1288–90 (Fed. Cir.
2009). Mr. Rainville’s challenge to the interpretation or
weighing of the evidence is beyond our jurisdiction. See
38 U.S.C. § 7292(d)(2).
Mr. Rainville’s complaint that the Board erred in fail-
ing to obtain his 1967 X-rays amounts to a challenge to
the reliability of the evidence used to establish that Mr.
Rainville lacked service connection and is therefore out-
side of our jurisdiction. The Board concluded that a
written report associated with the 1967 X-rays was ade-
quate and reliable evidence of Mr. Rainville’s 1967 inju-
ries. In other words, it determined that the 1967 X-rays
would have been cumulative over the 1967 written report.
Reliability of evidence is a factual determination for the
Board. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed.
Cir. 1997). To address the merits of Mr. Rainville’s ar-
gument would require us to make our own factual deter-
mination as to whether the 1967 written report was
indeed reliable evidence. We lack jurisdiction to under-
take such fact-based review and therefore cannot reach
the merits of Mr. Rainville’s challenge.
CONCLUSION
For the foregoing reasons, the appeal is dismissed for
lack of jurisdiction.
DISMISSED
RAINVILLE v. GIBSON 5
COSTS
No costs.
| {
"pile_set_name": "FreeLaw"
} |
Cite as 2017 Ark. App. 313
ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-15-817
Opinion Delivered May 17, 2017
TROY LAURENCE MCCULLEY APPEAL FROM THE POINSETT
APPELLANT COUNTY CIRCUIT COURT
[NO. 56CR-12-50]
V.
HONORABLE BRENT DAVIS,
STATE OF ARKANSAS JUDGE
APPELLEE
AFFIRMED; MOTION DENIED
BRANDON J. HARRISON, Judge
Appellant Troy Laurence McCulley filed a petition for postconviction relief pursuant
to Rule 37.1 of the Arkansas Rules of Criminal Procedure (2015), which was denied by the
circuit court. McCulley was represented by counsel in the proceedings below, and after
lodging an appeal, his postconviction counsel filed a motion to be relieved, which was
granted by the Arkansas Supreme Court on December 10, 2015. McCulley v. State, No.
CR-817 (Ark. Dec. 10, 2015) (order granting motion to be relieved). McCulley
subsequently filed a pro se appellant’s brief, appellee responded, and McCulley filed a pro
se reply brief. After the issues on appeal were thoroughly briefed, McCulley filed a motion
for appointment of counsel. For the reasons stated below, we affirm the circuit court’s
denial of postconviction relief, and McCulley’s motion for appointment of counsel is
therefore denied.
Cite as 2017 Ark. App. 313
A jury convicted McCulley of one count of rape, three counts of felony possession
of drug paraphernalia, and one count of misdemeanor possession of drug paraphernalia. He
was sentenced to thirty years’ imprisonment for rape, and a $1000 fine was imposed for each
of the drug offenses. This court affirmed his convictions on direct appeal. McCulley v. State,
2014 Ark. App. 330.
McCulley filed a timely petition for postconviction relief and made numerous
allegations of ineffective assistance of counsel, contending that his trial counsel failed to gain
suppression of certain physical evidence, failed to object to the admission of a drug-screen
analysis, and failed to object to the admission of irrelevant evidence and testimony. A
hearing was conducted by the circuit court. The circuit court relied on the arguments
presented at the hearing as well as an extensive review of the trial record and concluded that
the arguments and objections that McCulley alleged trial counsel had erroneously failed to
raise would have been meritless and otherwise would not have changed the outcome of his
trial. On appeal, McCulley repeats some, but not all, of the claims raised below and argues
that the circuit court erred by denying these claims for relief. The arguments that were
made below but not raised on appeal are considered abandoned. State v. Grisby, 370 Ark.
66, 69, 257 S.W.3d 104, 107 (2007).
Our jurisdiction is pursuant to footnote 1 in Barnes v. State, 2017 Ark. 76, 511
S.W.3d 845 (per curiam). The appellate court will not reverse the circuit court’s decision
granting or denying postconviction relief unless it is clearly erroneous. Walden v. State, 2016
Ark. 306, at 2–3, 498 S.W.3d 725, 728–29 (per curiam); Kemp v. State, 347 Ark. 52, 55, 60
S.W.3d 404, 406 (2001). A finding is clearly erroneous when, although there is evidence
2
Cite as 2017 Ark. App. 313
to support it, the appellate court, after reviewing the entire evidence, is left with the definite
and firm conviction that a mistake has been committed. Walden, 2016 Ark. 306, at 2–3,
498 S.W.3d at 728–29.
When considering an appeal from a circuit court’s denial of a Rule 37.1 petition
based on ineffective assistance of counsel, the sole question presented is whether, based on
the totality of the evidence under the standard set forth by the United States Supreme Court
in Strickland v. Washington, 466 U.S. 668 (1984), the circuit court clearly erred in holding
that counsel’s performance was not ineffective. Id. Under the two-prong standard outlined
in Strickland, to prevail on a claim of ineffective assistance of counsel, the petitioner must
show that (1) counsel’s performance was deficient and (2) the deficient performance
prejudiced his defense. Id. The reviewing court must indulge in a strong presumption that
trial counsel’s conduct falls within the wide range of reasonable professional assistance. Id.
The petitioner claiming ineffective assistance of counsel has the burden of overcoming this
presumption by identifying specific acts or omissions of trial counsel, which, when viewed
from counsel’s perspective at the time of the trial, could not have been the result of
reasonable professional judgment. Id. The second prong requires a petitioner to show that
counsel’s deficient performance so prejudiced his defense that he was deprived of a fair trial.
Id. Consequently, the petitioner must show there is a reasonable probability that, but for
counsel’s errors, the fact-finder would have had a reasonable doubt respecting guilt, i.e., the
decision reached would have been different absent the errors. Id. A reasonable probability
is a probability sufficient to undermine confidence in the outcome of the trial. Id. Unless
3
Cite as 2017 Ark. App. 313
a petitioner makes both showings, it cannot be said that the conviction resulted from a
breakdown in the adversarial process that renders the result unreliable. Id.
In order to demonstrate the prejudice required under the Strickland test, a person
seeking postconviction relief on a claim of ineffective assistance that is based on the failure
of counsel to make a motion or objection must show that counsel could have made a
successful argument. Breeden v. State, 2014 Ark. 159, at 6–7, 432 S.W.3d 618, 624 (per
curiam). Failure to make a meritless objection or motion does not constitute ineffective
assistance of counsel. Id.; Greene v. State, 356 Ark. 59, 70, 146 S.W.3d 871, 880 (2004).
Before addressing McCulley’s arguments on appeal, it is necessary to review the
evidence adduced at his trial. The trial record demonstrates that McCulley’s girlfriend,
Loretta Collette, lured her sixteen-year-old niece, A.R., to McCulley’s residence.
According to the testimony of A.R., after arriving at McCulley’s residence, she was drugged
and taken to an outbuilding behind the main house, stripped naked, bound by her hands
and feet, and raped by Collette and McCulley. A.R. was returned to her mother hours
after she had been due home. Because of her unusual behavior, a drug test was administered
by a local physician, and the test was positive for amphetamines. Eventually, A.R. reported
to investigators that not only had she been drugged by McCulley and Collette, but that she
had also been sexually assaulted by them. Subsequently, Collette admitted to police that she
had participated in the assault, and based on Collette’s admissions, a search warrant for
McCulley’s residence was obtained and executed. The search included the outbuilding
described by A.R. The police seized numerous items as a result of the search, including,
among other things, drug paraphernalia and pornographic videotapes.
4
Cite as 2017 Ark. App. 313
In his first point on appeal, McCulley argues that the circuit court erred by rejecting
his ineffective-assistance-of-counsel claim that counsel had erroneously failed to gain the
suppression of all evidence seized in the search of his residence and the outbuilding.
According to McCulley, trial counsel failed to move to suppress this evidence on the basis
that the warrant was deficient because the warrant was signed by the presiding judge before
the affidavit establishing probable cause had been presented. McCulley maintains that all
evidence seized would have been suppressed but for the failure of his counsel to challenge
the manner in which the search warrant had been issued. 1
The record of the suppression hearing demonstrates that the affiant, Officer Erik
Willbanks, testified that he had appeared before Judge Ron Hunter at 6:12 p.m. on January
16, 2012, and swore to the facts contained in the affidavit. The affidavit itself shows that it
was signed by Willbanks at 6:12 p.m.; the affidavit originally reflected that it was signed and
sworn before Judge Hunter at 6:00 p.m., but the number six was crossed out and replaced
with the number seven. On the other hand, the related warrant signed and issued by Judge
Hunter | {
"pile_set_name": "FreeLaw"
} |
76 F.3d 372
NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Lawrence DUKES, Plaintiff-Appellant,v.W.K. JONES; Alvin Newman, Defendants-Appellees.
No. 95-7334.
United States Court of Appeals, Fourth Circuit.
Submitted Jan. 18, 1996.Decided Feb. 1, 1996.
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Fox, Chief District Judge. (CA-95-232-5-F)
Before HAMILTON and LUTTIG, Circuit Judges, and CHAPMAN, Senior Circuit Judge.
Lawrence Dukes, Appellant Pro Se.
E.D.N.C.
AFFIRMED.
PER CURIAM:
1
Appellant appeals from the district court's order denying relief on his 42 U.S.C. § 1983 (1988) complaint. 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. Dukes v. Jones, No. CA-95-232-5-F (E.D.N.C. Aug. 9, 1995). 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
| {
"pile_set_name": "FreeLaw"
} |
Statute Limiting the President’s Authority to Supervise the
Director of the Centers for Disease Control in the Distribution of an
AIDS Pamphlet
Statutory provision requiring the D irector o f the Centers for D isease Control to distribute an AIDS
inform ation pam phlet to the public “without necessary clearance o f the content by any official,
organization or office” violates the separation o f powers by unconstitutionally infringing upon the
P resident’s authority to supervise the executive branch.
March 11, 1988
M em o ran d u m O p in io n f o r t h e C ou n sel to the P r e s id e n t
This memorandum responds to your request that this Office comment on the
constitutionality of a provision found in H.J. Res. 395 (the fiscal 1988 Continu
ing Resolution), which purports to require the Director of the Centers for Dis
ease Control (“CDC”) to arrange for the mass mailing of AIDS information fliers,
free from any executive branch supervision. For the reasons set forth below, we
believe that this provision violates the separation of powers by unconstitution
ally infringing upon the President’s authority to supervise the executive branch.1
I. Background
The provision in question is found at page 22 of the “Departments of Labor,
Health and Human Services, and Education, and Related Agencies Appropria
tion Act,” one of the appropriations measures subsumed within H.J. Res. 395.
That provision requires “[t]hat the Director [of the CDC] shall cause to be dis
tributed without necessary clearance o f the content by any official, organization
or office, an AIDS mailer to every American household by June 30,1988, as ap
proved and funded by the Congress in Public Law 100-71” (emphasis added).2
1 This memorandum is confined to the constitutional illegitimacy o f this provision’s restriction on the Presi
dent’s exercise o f his supervisory powers. Accordingly, this memorandum does not address the constitutionality of
the provision’s establishment of a June 30, 1988, deadline for the mailing o f AIDS fliers. See text o f provision, in
fra, main text.
2 The provision’s legislative history suggests that congressional concern over White House delays in authoriz
ing the mailing o f AIDS fliers by the CDC led to passage o f the provision under scrutiny in this memorandum. The
Senate Appropriations Committee Report accompanying the fiscal 1988 Departments of Labor, Health and Human
Services, and Education and Related Agencies Appropriations Bill stated* “The Committee is greatly concerned
that the $20,000,000 provided by the Committee in the 1987 supplemental for an every-household mailing has been
delayed by the White House The Committee believes that this is an important initiative as recommended by the
47
The CDC is a subordinate executive branch agency within the Public Health
Service of the Department of Health and Human Services (“HHS”).3 On its face,
the language highlighted above (“shall cause to be distributed w ithout. . . clear
ance of the content by any official”) appears to preclude the President and his
subordinates from overseeing the CDC ’s determination of the content of the AIDS
mailer. This language thus prevents the President, either directly or through his
subordinates, from supervising a subordinate executive branch official (the CDC
Director) in the conduct of certain of his duties (viz., the dissemination of spec
ified AIDS-related information to the public), trenching upon the President’s ex
clusive constitutional authority to supervise the executive branch. See U.S. Const,
art. II, § 1, cl. 1 (“The executive Power shall be vested in a President of the United
States of America.”).4
II. Discussion
A. The Nature o f the Unitary Executive
As head of a unitary executive, the President controls all subordinate officers
within the executive branch. The Constitution vests in the President of the United
States “The executive Power,” which means the whole executive power. Because
no one individual could personally carry out all executive functions, the Presi
dent delegates many of these functions to his subordinates in the executive branch.
But because the Constitution vests this power in him alone, it follows that he is
solely responsible for supervising and directing the activities of his subordinates
in carrying out executive functions. Any attempt by Congress to constrain the
President’s authority to supervise and direct his subordinates in this respect, vi
olates the Constitution.
2 (. . continued)
CDC and the Department [of Health and H um an Services], and bill language has been included mandating this
mailing by February 15, 1988.” S. Rep No 189, 100th Cong., 1st Sess. 70 (1987). (The mailing deadline date was
changed to June 30,1988, in the final Continuing Resolution.) Reflecting this concern, the amended version o f the
Labor and Related Agencies Appropriations Bill, reported by the Appropriations Committee and debated by the
full Senate on October 13,1987, contained language requiring CDC to distribute AIDS mailers “without necessary
clearance o f the content by any official, organization or office.” See 133 Cong Rec. 27,372 (1987).
3 The CDC was established by the Secretary of HHS pursuant to his authority under section 301 o f the Act of
July 1, 1944, as amended, 58 Stat. 691 (1944) (codified at 42 U.S.C § 241). That section authorizes the Secretary
o f HHS to “conduct in the [Public Health] Service . . . research, investigations, experiments, demonstrations, and
studies relating to the causes, diagnosis, treatment, control, and prevention of physical and mental diseases and im
pairments o f m an.” 42 U.S.C § 241(a). The CDC was organized as the “Communicable Disease Center” in the
1950s, and redesignated the CDC in 1970. S ee 35 Fed. Reg 10,797 (1970). The CDC was given full “agency sta
tus” in 1973. See 38 Fed. Reg. 18,261(1973). The CDC was reorganized in 1980. See 45 Fed. Reg. 67,772 (1980).
4 Since the provision in question, on its face, precludes supervision o f the CDC Director “by any official, orga
nization o r office,” the question arises w hether the President him self is an “official, organization or office” within
the m eaning o f the statute. Even assuming th at the President himself is deemed to be neither an “official” (a strained
interpretation, since the President certainly exercises “official” functions m carrying out his duties, such as the duty
to “ lake Care that the Laws be faithfully executed”) nor an “organization” nor an “office,” the provision at issue is
constitutionally impermissible, in that it effectively eviscerates the President’s ability to supervise a subordinate
executive branch agency, the CDC. Since ev en under this construction the terms “official," “organization,” and “of-
48
B. Evidence o f Original Intent
Evidence of the framers’ original intent demonstrates that the Constitution was
designed to vest the whole executive power in the President.5 The framers pur
posefully chose a unitary executive approach over a more traditional alternative.
Influenced by the British model, in which ministers were held responsible for the
acts of an unimpeachable monarch, most of the original states inhibited their gov
ernors’ power by forcing them to act through, or in cooperation with, some form
of privy council or constitutional cabinet. See The Federalist No. 70 (Alexander
Hamilton) (Clinton Rossitered., 1961) (“The Federalist”). This device was care
fully considered and deliberately rejected by the Federal Convention. The ques
tion of the proper disposition of the executive power in the new Constitution pro
voked a lengthy explication in several numbers of the The Federalist.
The two main reasons for adopting a truly unitary executive in the new Con
stitution were complementary and mutually reinforcing. On the one hand, unity
obviously promotes dispatch and decisiveness, which is of far greater importance
in the executive than in either of the other branches. As Hamilton pointed out:
In the legislature, promptitude of decision is oftener an evil than
a benefit. The differences of opinion, and the jarring of parties in
that department of the government, though they may sometimes
obstruct salutary plans, yet often promote deliberation and cir
cumspection, and serve to check excesses in the m ajority.. . . But
no favorable circumstances palliate or atone for the disadvantages
of dissention in the executive department. . . . They serve to em
barrass and weaken the execution of the plan or measure to which
they relate, from the first step to the final conclusion of it.
4 ( . . . continued)
flee” certainly encompass all officers o f the executive branch other than the President, the President would be pre
cluded from assigning supervision o f the C D | {
"pile_set_name": "FreeLaw"
} |
24 F.Supp.2d 789 (1998)
NATIONAL CARTAGE CO., Plaintiff,
v.
CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS HEALTH AND WELFARE AND PENSION FUNDS, Defendant.
No. Civ.A 97-40504.
United States District Court, E.D. Michigan, Southern Division.
September 29, 1998.
*790 Peter T. Mooney, Winegarden, Shedd, Flint, MI, Sander H. Simen, Simen, Winkler, Flint, MI, Kendall B. Williams, Williams Firm, Grand Blanc, MI, for National Cartage Company, plaintiff.
Paul M. Newcomer, Harrison Assoc., Bloomfield Hills, MI, Albert M. Madden, Central States Southeast and Southwest Areas Funds, Des Plaines, IL, for Central States Southeast and Southwest Areas Health and Welfare and Pension Funds, defendant.
MEMORANDUM OPINION AND ORDER DENYING IN PART AND GRANTING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
GADOLA, District Judge.
Before the court is a motion by defendant, Central States, Southeast and Southwest Areas Health and Welfare and Pension Funds, for summary judgment pursuant to Fed. R.Civ.P. 56. For the reasons set forth below, this court will deny defendant's motion in part, and grant it in part.
Factual Background
Defendant is a multi-employer benefits fund that provides retirement benefits to employees pursuant to collective bargaining agreements between employers and local unions affiliated with the International Brotherhood of Teamsters. Pursuant to a series of collective bargaining agreements, plaintiff, National Cartage Company, paid contributions to the fund on behalf of its employees. Plaintiff also agreed to be bound by a trust agreement that governs the allocation of benefits. The instant dispute concerns contributions paid between 1961 and 1994 on behalf of John Nash, the 100% stockholder of plaintiff. The plan provides that only "employees" are eligible to participate. Defendant made a determination that Nash had supervisory responsibilities while he was employed *791 by plaintiff. Accordingly, defendant determined that Nash was not entitled to participate in the fund. However, plaintiff had paid contributions on Nash's behalf for the full 33-year period that Nash owned the company.
Nash originally applied for pension benefits in November of 1993. On July 24, 1996, defendant informed Nash that he was ineligible to participate in the plan. After defendant informed Nash in July of 1996 that he was not entitled to participate in the plan, Nash appealed that determination through various channels made available by defendant. None of these appeals were successful. During that same period, on August 6, 1996, plaintiff requested a refund of all contributions paid to the fund on behalf of Nash. Defendant indicated that it would not process such a request unless it received a signed statement from Nash waiving all claims to benefits under the plan. On July 21, 1997, Nash signed a statement in which he admitted that, as an owner, he was not a member of the bargaining unit and not able to participate in the plan. The statement further provided:
When [my] records are corrected, as I have stated they should be, I understand and agree that I will not be entitled to any benefits from the Fund on account of the work I did for National Cartage Company during the time from October 1, 1961, to June 25, 1994, and I now state that I will not make any claim for any benefits on account of that work.
(Def.'s Mot. for Summ. J., Ex. 12.)
Plaintiff has been unable to recover the funds it contributed to the fund on Nash's behalf. Accordingly, on December 18, 1997 plaintiff filed the instant complaint seeking restitution of the funds.
Discussion
1. Standard for summary judgment pursuant to Rule 56
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "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 any material fact and that the moving party is entitled to judgment as a matter of law." Summary judgment is appropriate where the moving party demonstrates that there is no genuine issue of material fact as to the existence of an essential element of the non-moving party's case on which the non-moving party would bear the burden of proof at trial. Martin v. Ohio Turnpike Commission, 968 F.2d 606, 608 (6th Cir.1992); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In considering a motion for summary judgment, the court must view the facts and draw all reasonable inferences therefrom in a light most favorable to the non-moving party. 60 Ivy Street Corporation v. Alexander, 822 F.2d 1432, 1435 (6th Cir.1987). The court is not required or permitted, however, to judge the evidence or make findings of fact. Id. 822 F.2d at 1435-36. The moving party has the burden of showing conclusively that no genuine issue of material fact exists. Id. 822 F.2d at 1435.
A fact is "material" for purposes of summary judgment where proof of that fact would have the effect of establishing or refuting an essential element of the cause of action or a defense advanced by the parties. Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.1984). In other words, the disputed fact must be one which might affect outcome of the suit under the substantive law controlling the issue. Henson v. National Aeronautics and Space Administration, 14 F.3d 1143, 1148 (6th Cir.1994). A dispute over a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Id. Accordingly, where a reasonable jury could not find that the non-moving party is entitled to a verdict, there is no genuine issue for trial and summary judgment is appropriate. Feliciano v. City of Cleveland, 988 F.2d 649 (6th Cir. 1993).
Once the moving party carries its initial burden of demonstrating that no genuine issues of material fact are in dispute, the burden shifts to the non-moving party to present specific facts to prove that there is a genuine issue for trial. To create a genuine issue of material fact, the non-moving party *792 must present more than just some evidence of a disputed issue. As the United States Supreme Court stated in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986):
There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the [non-moving party's] evidence is merely colorable, or is not significantly probative, summary judgment may be granted.
(Citations omitted); see also Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Consequently, the non-moving party must do more than raise some doubt as to the existence of a fact; the non-moving party must produce evidence that would be sufficient to require submission of the issue to the jury. Lucas v. Leaseway Multi Transp. Serv., Inc., 738 F.Supp. 214, 217 (E.D.Mich.1990), aff'd, 929 F.2d 701 (6th Cir. 1991).
2. Analysis
The contributions at issue in this case can be broken down into three distinct groups:
(A) Contributions paid within the ten-year limitation period provided in the trust agreement (June 16, 1984 to June 16, 1994);
(B) contributions paid between the effective date of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001, et seq., and the start of the ten-year limitation period (January 1, 1975 to June 16, 1984); and
(C) contributions paid prior to the effective date of ERISA (October 1, 1961 to January 1, 1975).
This court finds that defendant is not entitled to summary judgment with respect to groups (A) and (B), but it is entitled to summary judgment with respect to group (C). The analysis related to each of these groups will be discussed in turn.
A. Contributions paid within the ten-year limitation period provided by the trust agreement (June 16, 1984 to June 16, 1994)
As noted above, pursuant to a series of collective bargaining agreements between plaintiff and the International Brotherhood of Teamsters, plaintiff has participated in the defendant fund and agreed to be bound by the fund trust agreement. Article XIV, Section 1 of that trust agreement provides, in relevant part:
The Trustees will issue a credit for contributions that have been billed to an Employer if (1) the related work history was reported by mistake of fact or law ... as determined by the Trustees and (2) the request for credit is received within ten years after the related work history was billed. If an employer no longer has an obligation to contribute to the Fund and has satisfied his withdrawal liability assessment, the Trustees will refund contributions paid by an Employer to the Trust if (1) such contributions were made by a mistake | {
"pile_set_name": "FreeLaw"
} |
617 F.2d 1025
COLONIAL AMERICAN NATIONAL BANK, Appellee,v.Robert L. KOSNOSKI, Appellant.
No. 78-1602.
United States Court of Appeals,Fourth Circuit.
Argued Oct. 3, 1979.Decided Feb. 11, 1980.Rehearing Denied May 5, 1980.
Douglas D. Wilson, Roanoke, Va. (Gerald A. Dechow, Martin, Hopkins & Lemon, P. C., Roanoke, Va., on brief), for appellant.
William R. Rakes, Roanoke, Va. (Bruce C. Stockburger, Gentry, Locke, Rakes & Moore, Roanoke, Va., on brief), for appellee.
Before BRYAN, Senior Circuit Judge, and WINTER and MURNAGHAN, Circuit Judges.
ALBERT V. BRYAN, Senior Circuit Judge:
1
Adjudged liable as the guarantor of two dishonored loans of the Colonial American National Bank at Roanoke, Virginia, Robert L. Kosnoski of West Virginia, appeals the judgment passed in a diversity action June 19, 1978, after a bench trial, by the Federal Court for the Western District of Virginia. In defense, he had pleaded complete release from the guaranty because of the bank's failure, upon his demand, after default in the loans, to sue all solvent parties (including sureties, guarantors and endorsers) who reside in Virginia. His stand rests on the exactions imposed upon the bank by the Code of Virginia:1
2
Surety may require creditor to sue. The surety, guarantor or endorser, or his committee or personal representative, of any person bound by any contract may, if a right of action has accrued thereon, require the creditor or his committee or personal representative, by notice in writing, to institute suit thereon, and if he be bound in a bond with a condition, or for the performance of some collateral undertaking, he shall also specify in such requirement the breach of the condition or undertaking for which he requires suit to be brought.
3
Va.Code § 49-25 (1974).
4
Effect of failure of creditor to sue. If such creditor, or his committee or personal representative, shall not, within fifteen days after such requirement, institute suit against every party to such contract who is resident in this State and not insolvent and prosecute the same with due diligence to judgment and by execution, he shall forfeit his right to demand of such surety, guarantor or endorser or his estate, and of his cosureties and their estates, the money due by any such contract for the payment of money, or the damages sustained by any breach of the collateral condition or undertaking specified as aforesaid; but the conditions, rights and remedies against the principal debtor shall remain unimpaired thereby.
5
Va.Code § 49-26 (1974).
6
There are no material factual differences here; decision hinges upon the construction of the statutes. Disagreeing with the trial judge's interpretation, we hold that under State law, Colonial should have sued all the other solvent, resident sureties, guarantors and endorsers, and failing to do so, it is precluded from enforcing Kosnoski's guaranty.
7
By a written contract of June 5, 1975, the bank agreed to lend Edward G. Frye and John Barbour Frye the sum of $372,272 on their note (Term Note), and to extend a $200,000 line of credit to the Frye Building Company to be used as working capital. The loan agreement was subscribed by Frye Building Company, a Virginia corporation, Edward G. Frye, John Barbour Frye, Ruth Townes Frye and Ernestine C. Frye. The agreement demanded that advances made under the line of credit be "personally guaranteed" by the borrowers (Edward G. Frye and John Barbour Frye) and their wives. The joinder of the wives in the loan papers is of peculiar import. It is notable because Ruth Townes Frye, wife of John Barbour Frye, was the only party who remained both a resident of Virginia and not insolvent at the time of default.
8
However, before consummation of the loans, the bank declined to advance $150,000 thereof, having learned meanwhile that Frye Building Company did not have perfect title to one parcel of the property tendered as security.2 During the summer of 1976, Frye Building Company approached the bank for release of the additional $150,000. To this end, Kosnoski, an investor in the Company, on August 12, 1976, executed a Guaranty Agreement with the bank and the Edward G. Frye, III, Construction Company, assuring payment of the retained $150,000.
9
In disbursing the additional funds, the bank prepared a document, signed by John Barbour Frye3 and Ernestine C. Frye, wife of Edward, consenting to the disbursement of the $150,000 by the bank in August 1976. Through the bank's error, the signature of Ruth Townes Frye, wife of John Barbour Frye, was never obtained. Nevertheless, the bank turned over the $150,000 upon receipt of the Guaranty Agreement.
10
On September 30, 1977, the bank wrote Edward and John Frye, their wives, the various corporate entities involved and Kosnoski, notifying them that the makers were in default on the Term Note and line of credit note, and demanding payment on or before October 12, 1977. Otherwise, the letter continued, "our attorneys will be instructed to proceed with collection of these obligations from the makers, guarantors or property securing said notes."
11
With the loans still in arrears, on December 8, 1977, suit was brought by the bank against Kosnoski alone. Through his attorneys, by letter of February 15, 1978, Kosnoski called upon the bank to sue each maker, guarantor and endorser of the two notes.4 Although this demand was received by the bank February 16, no suit was ever begun against any of these parties other than Kosnoski.
12
Since this omission continued for more than 15 days, Kosnoski pleaded it as freeing him, by virtue of Va. Code § 49-26, from responsibility under his guaranty. Undisputed is the fact, it will be recalled, that the only other "party" to the loan "contract who is resident in this State and not insolvent," Va. Code § 49-26, and thus within the embrace of the Virginia statute, is Ruth Townes Frye, the wife of John Barbour Frye. As previously noticed, she bound herself by executing the loan agreement.
13
Admitting that no case has been decided in Virginia specifically addressing the issue of whether the statute applied to a situation in which a guarantor demands that the creditor sue another surety, guarantor or endorser, the bank adverts to the decision of the Supreme Court of West Virginia in State v. Citizens' National Bank of Philippi, 114 W.Va. 338, 171 S.E. 810 (1933). Its discussion traces the Virginia law from its first enactment to the present, but glosses over the point determinative here. The original 1794 statute, 1 Rev. Code of Va. c. 116, § 6, p. 461 (1819) was amended to substantially its present form in 1849 to impose penalties against a creditor who refused "(to) institute suit against every party to such contract who is resident in this State and not insolvent . . . ." Va.Code § 49-26. (Accent added.) The insertion of the phrase "every party" would have been entirely unnecessary if the legislature had intended that the guarantor could only demand suit against the principal. We, therefore, cannot accept the West Virginia view, and find Kosnoski's claim of discharge is unimpeachable.
14
The order on appeal will be reversed, and the action remanded to the District Court with directions to enter judgment for the appellant with costs.
15
Vacated with Directions.
MURNAGHAN, Circuit Judge, dissenting:
16
It concerns me to dissent, but my understanding of what the Virginia courts would do in this diversity action differs from that of my fellow panel members. The pertinent rules of suretyship and my perception of the proper reading of the applicable Virginia statutes lead me to a conclusion other than the one the majority has reached.
17
The case involved a term loan agreement, a loan guaranty agreement, and two notes thereunder, all executed on June 5, 1975. Those documents together provided for: (1) borrowings from Colonial American National Bank ("Bank") by Edward G. Frye, III ("Edward") and John Barbour Frye ("John") in the aggregate amount of $372,272, with $122,272 of the total amount to be relent by them to a partnership, Frye Building Company ("Partnership"), and $250,000 to be relent by them to a Virginia corporation also named Frye Building Company ("Virginia Corporation"); and (2) borrowings from the Bank by the Virginia Corporation in the amount of $200,000.
18
The term loan agreement covered in detail the terms of the first of the transactions, and also provided:
19
In addition to the above term loan, Bank will extend a $200,000 line of credit to the Company to | {
"pile_set_name": "FreeLaw"
} |
166 F.3d 1220
1999 CJ C.A.R. 644
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Michael BATTEN, Petitioner-Appellant,v.Larry FIELDS; Attorney General of the State of Oklahoma,Respondents-Appellees.
No. 98-6326.
United States Court of Appeals, Tenth Circuit.
Feb. 2, 1999.
Before TACHA, McKAY, and MURPHY, Circuit Judges.
1
ORDER AND JUDGMENT*
2
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist 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.
3
The procedural history surrounding this appeal is important. On July 19, 1996, petitioner Michael S. Batten filed a pro se petition pursuant to 28 U.S.C. § 2254 challenging his 1992 Oklahoma convictions on constitutional grounds. On March 12, 1997, a magistrate judge issued a Report and Recommendation ("R & R"), recommending that Batten's petition be denied. Upon de novo review of those portions of the R & R objected to by Batten, the district court adopted the R & R and denied the petition on August 4, 1997. On July 31, 1998, almost one year later, Batten filed a notice of appeal.1 On August 19, 1998, this court issued a show-cause order, ordering the parties to respond to the following question: "Whether the [July 31, 1998] notice of appeal was timely filed 30 days after entry of the district court's August 4, 1997 Judgment or was it filed nearly 11 months late?" In response to this order, Batten filed in the district court a Motion for Exception to File Out-of-Time Appeal. The district court denied the motion on September 28, 1998, holding as follows:
4
Petitioner has filed a Motion for Exception to File Out-of-Time Appeal, requesting that this Court grant him permission to file a late appeal because he did not receive a copy of this Court's August 4, 1997, Judgment denying habeas relief until July 23, 1998. In support of his motion, he asserts that he notified the Court on September 9, 1997, of a change of address, and notified the Court on December 9, 1997, of a second change of address.
5
Pursuant to Fed. R.App. P. Rules 3 and 4(a)(1), an appeal must be filed within days of the date of entry of the judgment. In the instant case, this would have been October 3, 1997. Pursuant to Fed. R.App. P. Rule 4(a)(6), the Court may grant an extension of 14 days to file a notice of appeal if the petitioner did not receive notice of the entry of judgment within 21 days of its entry, and no party would be prejudiced. However, the petitioner also must have filed a motion within 180 days of judgment or within seven days of the receipt of the notice of judgment, whichever is earlier. Fed. R.App. P. Rule 4(a)(6). Petitioner acknowledges that he "first knew of the denial" on November 7, 1997. Thus, he had until the earliest date of November 14, 1997 (seven days from date he received notice of entry of judgment) or January 1, 1998 (180 days from the entry of judgment)2 to file the notice of intent to appeal. In the instant case, the earlier date is November 14, 1997. However, even assuming Petitioner did not receive notice of the judgment as contemplated by Rule 4(a)(6) until July 23, 1998 [the date Batten received an actual copy of the judgment denying habeas relief], the outer time limit of 180 days expired on January 1, 1998, and thus his Notice of Intent of Appeal, filed in this Court on August 5, 1998, and allegedly mailed on July 31, 1998, is untimely. Accordingly, Petitioner's motion requesting an out-of-time appeal is DENIED.
6
Finally, in response to the district court's order, Batten filed a pro se brief in this court on October 13, 1998, arguing both the merits of his underlying habeas appeal and the propriety of the district court's denial of his motion to file an out-of-time appeal.
7
In light of this procedural history, it is clear that this court lacks jurisdiction to review the district court's August 4, 1997, Judgment denying Batten's § 2254 petition. The thirty-day deadline for the timely filing of a notice of appeal under Fed. R.App. P. 4(a)(1) expired on September 3, 1997. Batten's notice of appeal was filed in the district court on July 31, 1998, many months beyond the thirty-day deadline. The "taking of an appeal within the prescribed time is mandatory and jurisdictional." Budinich v. Becton Dickinson & Co., 486 U.S. 196, 203, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988). Furthermore, this court "lacks discretion to consider the merits of a case over which it is without jurisdiction." Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 379-80, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981). Inasmuch as Batten did not file his notice of appeal until almost one year after the district court's Judgment in this case, this court is without jurisdiction over the merits of the denial of Batten's § 2254 petition. See Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir.1994) (holding that pro se appellants must comply with the requirements of the Federal Rules of Appellate Procedure that govern all litigants).
8
This court's conclusion that it is without jurisdiction to review the merits of the denial of Batten's § 2254 petition does not end the inquiry. As noted above, Batten filed in the district court a motion for order granting an exception to file an out-of-time brief pursuant to Fed. R.App. P. 4(a)(6) on August 12, 1998. The district court denied Batten's Rule 4(a)(6) motion by written order on September 28, 1998. On October 13th, within thirty days of the entry of the district court order denying Batten's Rule 4(a)(6) motion, Batten filed a brief in this court which discusses the denial of the Rule 4(a)(6) motion. Treating that brief as the functional equivalent of a notice of appeal, see Smith v. Barry, 502 U.S. 244, 248-49, 112 S.Ct. 678, 116 L.Ed.2d 678 (1992), this court has jurisdiction over the district court's September 28, 1998, Order denying Batten's Rule 4(a)(6) motion. Upon review of the parties' briefs and contentions on appeal and the district court's September 28th Order, this court finds no reversible error and affirms for substantially those reasons set out in the September 28th Order.
9
For those reasons set out above, Batten's appeal of the district court's August 4, 1997, denial of Batten's § 2254 petition is DISMISSED for lack of appellate jurisdiction. The district court's denial of Batten's Rule 4(a)(6) motion is AFFIRMED.
ENTERED FOR THE COURT:
*
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3
1
Batten's notice of appeal was actually received in the district court on August 5, 1998. Nevertheless, because Batten "certified" that his notice of appeal was placed in the prison mail system on July 31st, the district court treated the notice of appeal as filed on the 31st. See Houston v. Lack, 487 U.S. 266, 275, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) (holding that a pro se prisoner's notice of appeal is filed at the moment it is delivered to prison authorities for forwarding to the district court). It should be noted, however, that this distinction is irrelevant to the determination of this particular appeal
2
The district court erred in calculating the 180-day time frame from the filing of the judgment. The January 1, 1998, cut-off date adopted by the district court is only 150 days from the entry of the August 4, 1997, judgment. The appropriate cut-off date is January 31, 1998. Because Batten filed his motion for extension on August 12, 1998, well after the proper cut-off date, the district court's computational error is irrelevant to this court's disposition of this | {
"pile_set_name": "FreeLaw"
} |
76 F.3d 358
37 U.S.P.Q.2d 1595
LIFESCAN, INC., Plaintiff-Appellant,v.HOME DIAGNOSTICS, INC., Defendant-Appellee.
No. 94-1356.
United States Court of Appeals,Federal Circuit.
Feb. 2, 1996.
Philip S. Johnson, Woodcock Washburn Kurtz Mackiewicz & Norris, Philadelphia, Pennsylvania, argued, for plaintiff-appellant. With him on the brief were Dianne B. Elderkin, Joseph Lucci, and Barbara L. Mullin. Of counsel was Lynn A. Malinoski.
Ernest J. Beffel, Jr., Hancock, Rothert & Bunshoft, San Francisco, California, argued, for defendant-appellee. With him on the brief was Elizabeth C. Krivatsy. Of counsel was Mark A. Haynes, Haynes & Davis, Menlo Park, CA.
Before NEWMAN, RADER, and BRYSON, Circuit Judges.
PAULINE NEWMAN, Circuit Judge.
1
The United States District Court for the Northern District of California1 granted summary judgment that Home Diagnostics, Inc. (HDI) did not infringe United States Patent No. 5,049,487, owned by Lifescan, Inc. We affirm the judgment that there was not literal infringement, and reverse the grant of summary judgment of non-infringement under the doctrine of equivalents. That issue requires trial; we remand for that purpose.
Summary Judgment
2
Summary judgment is appropriate "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 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, 2552, 91 L.Ed.2d 265 (1986). We review the grant of summary judgment for correctness as to its premises and as to the law applied to undisputed facts. Scripps Clinic & Research Found. v. Genentech, Inc., 927 F.2d 1565, 1570, 18 USPQ2d 1001, 1005 (Fed.Cir.1991).
3
In accordance with Markman v. Westview Instruments, Inc., 52 F.3d 967, 34 USPQ2d 1321 (Fed.Cir.) (en banc ), cert. granted, --- U.S. ----, 116 S.Ct. 40, 132 L.Ed.2d 921 (1995), infringement is determined by a two-step analysis. In the first step the claims are interpreted by the court, as a matter of law. In the second step the claims are applied to the accused device by the trier of fact. This procedure applies whether the issue is of literal infringement or infringement by equivalency. See Hilton Davis Chem. Co. v. Warner-Jenkinson Co., 62 F.3d 1512, 35 USPQ2d 1641 (Fed.Cir.1995) (en banc ). Thus the issue of infringement is amenable to summary judgment only when there is no genuine issue of material fact as to whether correctly interpreted claims read upon the accused device or method, literally or under the doctrine of equivalents.
4
On appeal we first give plenary review to the trial court's claim interpretation, and then determine whether, on the correct claim interpretation, summary judgment was appropriately granted.
The Patented Invention
5
The invention of the '487 patent is a method of determining the amount of test material, such as glucose, in a fluid, such as blood, by a self-monitoring method. The principal users of such devices are persons with diabetes. Lifescan's patented system, trademarked "One Touch," is described as providing greater accuracy and convenience than prior self-monitoring systems. Lifescan states that its device was an immediate commercial success, and the basis of a new and growing business.
6
According to the preferred embodiment described in the '487 patent, a sample of blood is applied to one side of a test strip. The blood plasma penetrates through the test matrix by capillary action. The glucose in the blood reacts with a reagent in the matrix to form a dye during that passage. Red blood cells carried in the blood are filtered out by the matrix, thus avoiding distortion of the color of the dye that is formed. The amount of glucose in the blood is determined by measuring the reflectance at the other side of the strip, at a predetermined interval after the presence of fluid is detected on that side of the strip, and comparing it with the initial wet reflectance of the strip. This predetermined interval begins with a drop in strip reflectance, which indicates that the fluid has penetrated the strip. By this procedure the incubation period, during which the filtered blood is in contact with the test reagent, is timed automatically and the glucose determination is of increased precision.
7
The '487 specification explains that the initial comparison of the dry reflectance and the wet surface signals the start of the incubation period, and that the initial drop in reflectance results from penetration of the blood plasma through the matrix, whereby "there is exact synchronization of assay medium reaching the surface from which measurements are taken and initiation of the sequence of readings, with no requirement of activity by the user." The prosecution history explains that human error is eliminated by using the initial drop in reflectance to start the incubation period. Prior art methods of glucose measurement typically involved applying a sample of blood to a test strip containing a dye-forming reagent, waiting a specified time period, washing out the blood and blotting the strip dry, and then either comparing the color of the remaining dye to a color chart or inserting the strip into a reflectance meter. Lifescan's patented method eliminates the steps of removing the blood and drying the test strip, and is fully automatic.
8
In the HDI meters, as in the Lifescan invention, the sample of blood is applied to a test strip on one side of a matrix through which the blood plasma penetrates by capillary action. The glucose in the blood reacts with a dye-forming reagent during that passage. The amount of glucose present is determined by comparing the reflectance at the other side of the strip, at a predetermined interval after the fluid has penetrated the matrix, with the initial wet reflectance of the strip. Like the Lifescan method, the HDI method compares reflectance readings before and after the glucose in the blood has reacted with the dye-forming reagent in the matrix. However, in the HDI method the initial and final readings are not compared to each other, but to a dry reflectance that the district court found is determined at the factory and programmed into the meter.2 The meter then makes a comparison with the dry reflectance, and the incubation timing begins when the reflectance drops by a specified amount that indicates that the fluid has penetrated the matrix. In comparison, in the Lifescan invention the meter determines both the initial dry reflectance and the reflectance drop that indicates that the fluid has penetrated the matrix, thus beginning the incubation timing.
Claim Construction
9
HDI's motion for summary judgment of noninfringement was concentrated on claim 1, as representative of the '487 claims:
10
1. A method of causing an analytical measurement to be made in a reflectance-reading device at the end of a predetermined time period after an analyte reacts with a reagent in a porous, reflectance-reading matrix located in said device, which comprises:
11
taking a first reflectance reading from a dry first surface of said porous matrix prior to application of a sample of body fluid suspected of containing said analyte to a second surface of said porous matrix from which said sample can travel to said first surface by capillary action and react with said reagent in said porous matrix if said analyte is present in said sample;
12
applying said sample to said second surface of said porous matrix;
13
taking an additional reflectance reading from said first surface after said sample is applied to said porous matrix;comparing said additional reflectance reading to said first reflectance reading;
14
initiating said predetermined time period upon a predetermined drop in reflectance sufficient to indicate that said sample has reached said first surface; and
15
taking a measurement reflectance reading at the end of said predetermined time period without having determined the time at which said sample was initially applied to said porous matrix.
16
The district court construed the claims as limited to a method wherein the initial measurement of the dry reflectance is taken on the same test strip just before the blood is applied, and not on a sample test strip whose reflectance is taken at the factory. The court held that although the HDI method functions in the same way as the claimed invention, the HDI device differs in that it "compare[s] the reflectance readings of the test strips, whether they are wet or dry, to a threshold reflectance reading which is programmed into the meter at the factory."
17
Lifescan states that there is no material difference between comparing two reflectance readings to each other, and comparing both readings to a third (threshold) reading that was previously taken at the factory. Thus Lifescan states that the district court erred in construing the claims, arguing that neither the '487 specification nor its prosecution history supports the district court's interpretation of the | {
"pile_set_name": "FreeLaw"
} |
539 U.S. 937
Hillv.Hill et al.
No. 02-10105 (02A949).
Supreme Court of United States.
June 16, 2003.
1
Appeal from the Sup. Ct. N. C.
2
Application for stay, addressed to JUSTICE STEVENS and referred to the Court, denied. Certiorari denied. Reported below: 356 N. C. 301, 570 S. E. 2d 507.
| {
"pile_set_name": "FreeLaw"
} |
329 F.Supp.2d 1305 (2004)
UNITED STATES of America
v.
Sylvester GRANT
No. 3:03-CR-339-J-99MMH.
United States District Court, M.D. Florida,
August 12, 2004.
*1306 Paul I. Perez, United States Attorney, Frank Merrill Talbot, II, Assistant United States Attorney, Bartow, FL, for the United States.
Rosemary T. Cakmis, Assistant Federal Public Defender, Clyde M. Collins, Jr., Jacksonville, FL, for Defendant.
ORDER ON BLAKELY ISSUES
CORRIGAN, District Judge.
This case is before the Court for the sentencing of defendant Sylvester Grant.
*1307 I. Background
Defendant pled guilty to one count of possessing a firearm after having been previously convicted of a felony in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The government now asks that the Court apply USSG § 2K2.1(c)(1)(B) to crossover to the sentencing range under USSG § 2A1.3 (voluntary manslaughter) because a death resulted from defendant's use of the firearm. The government is requesting that the Court basically conduct a manslaughter trial at sentencing under the Guidelines, utilizing the lower standards for admissibility of evidence and the preponderance of the evidence burden traditionally used in Guidelines sentencing. If the Court found USSG § 2A1.3 applicable, it would result in an enhanced sentence under the Guidelines based on facts neither found by a jury nor admitted by defendant in his plea.[1]
On June 24, 2004, the Supreme Court decided Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). On July 7, 2004, the Court requested briefing from the parties on what effect, if any, Blakely has on defendant's sentencing. The Court subsequently determined that a more general discussion of Blakely's impact on the United States Sentencing Guidelines beyond the circumstances of defendant's case would be helpful in determining how future sentencings should be handled. To this end, the Court invited the Federal Public Defender and United States Attorney to participate in the argument which the Court held on August 11, 2004. The Court incorporates that discussion by reference here and formalizes the announcement made on the record at the hearing.
II. Discussion
Although guidance from the Eleventh Circuit and the Supreme Court on Blakely's effect on the United States Sentencing Guidelines is forthcoming, the undersigned cannot further postpone sentencing hearings until my superiors decide this issue. Any court is loath to rule that an enactment of Congress is unconstitutional. This is especially true when the entire congressionally mandated federal sentencing scheme is at risk. Thus, I have searched diligently for a way to uphold the Guidelines in their entirety post-Blakely. However, I have come to a conclusion which I think is inescapable: The rule of constitutional law announced in Blakely does apply to the federal Sentencing Guidelines. I so hold.
There have been a slew of Blakely opinions from other courts, district and appellate, which I have read and carefully considered. There is no need to replicate those scholarly efforts here. Instead, what follows is a summary of my holdings and how I intend to proceed until I receive appellate guidance:
1. The Supreme Court's decision in Blakely applies to the United States Sentencing Guidelines. See United States v. Booker, 375 F.3d 508, 513, 2004 WL 1535858, *4 (7th Cir.2004); United States v. Ameline, 376 F.3d 967 (9th Cir.2004); United States v. King, 328 F.Supp.2d 1276, ___, 2004 WL 1769148, *2 (M.D.Fla.2004) *1308 (Presnell, J.); United States v. Croxford, 324 F.Supp.2d 1230, 2004 WL 1521560, *1 (D.Utah July 7, 2004) ("Croxford I"); United States v. Croxford, 324 F.Supp.2d 1255 (D.Utah 2004) ("Croxford II").
2. If the Guidelines would require a judge to enhance a sentence by finding facts beyond those "reflected in the jury verdict," the Guidelines are unconstitutional as applied. Blakely, ___ U.S. at ___, 124 S.Ct. at 2537 (emphasis removed).
3. In a case involving a plea agreement that does not waive Blakely rights or contain sufficient factual admissions to support applicable Guidelines enhancement provisions, the Guidelines are unconstitutional as applied. See Croxford I, at 1242, 2004 WL 1521560 at *9.
4. The Guidelines can be constitutionally applied when there is no judicial factfinding that increases the defendant's sentence beyond the range dictated by the facts found by the jury. See United States v. Thompson, 324 F.Supp.2d 1273, 1274 (D.Utah 2004); Booker, 375 F.3d 508, 515. Thus, if the judge does not enhance a sentence based on additional factual findings not made by the jury, either because the judge determines that no enhancements are applicable or a sought after enhancement is not proven,[2] the Guidelines may be constitutionally applied.
5. The Guidelines can be constitutionally applied when a plea agreement waives Blakely rights and allows the judge to determine enhancements under the Guidelines, or a plea agreement contains factual admissions which allow the judge to enhance under the Guidelines. Blakely, ___ U.S. at ___, 124 S.Ct. at 2541.
6. In a case where the Guidelines are inapplicable because they are unconstitutional as applied under Blakely, the Court, pursuant to 18 U.S.C. § 3553(b)(1),[3] will sentence the defendant under 18 U.S.C. § 3553(a). Under 18 U.S.C. § 3553(a), the Court's sentence is informed by the factors contained therein and by the Sentencing Guidelines, but is indeterminate so long as it does not exceed the statutory maximum or fall below the statutory minimum. Cf. United States v. Hammoud, 378 F.3d 426, 2004 WL 1730309, *1 (4th Cir.2004) (recommending that district courts in the Fourth Circuit announce an alternative sentence pursuant to 18 U.S.C. § 3553(a)).
7. Including sentencing enhancements under the Sentencing Guidelines in the indictment and attempting to prove them to the jury at trial is unauthorized and therefore unavailable.[4]Croxford I, at 1242-1245, 2004 WL 1521560 at *10-12; 18 U.S.C. § 3553(a); Fed.R.Crim.P. 32(i)(3)(B).
8. Empaneling a sentencing jury is not authorized by law and is therefore unavailable. Croxford I, at 1242-1245, 2004 WL 1521560 at *10-12; 18 U.S.C. § 3553(a); Fed.R.Crim.P. 32(i)(3)(B).
*1309 9. The Court will conduct all sentencings under the Guidelines as before Blakely so that all Guidelines issues are addressed. The Court will also consider all issues relevant under 18 U.S.C. § 3553(a). If the Court can constitutionally apply the Guidelines, it will. If the Court determines at the sentencing hearing that the Guidelines cannot constitutionally be applied (because the Court is required to apply an enhancement prohibited by Blakely), the Court will impose an indeterminate sentence pursuant to 18 U.S.C. § 3553(a), and will also impose an alternative Guidelines sentence in the event the Guidelines are found to be constitutional after appellate review.
10. The undersigned will apply these principles on a case-by-case basis until I either achieve greater wisdom which causes me to reconsider or my superiors on the Eleventh Circuit or Supreme Court give me guidance.
It is so ORDERED.
NOTES
[1] The probation officer concluded that USSG § 2K2.1(c)(1)(B) was inapplicable. The Florida State Attorney's Office for the Fourth Judicial Circuit did not prosecute the homicide based on the conclusion that the defendant acted in self-defense. As the Court was preparing to issue its written opinion, the government filed a notice withdrawing its request to apply the enhancement. The government's notice does not affect the Court's Blakely decision, which was announced at the hearing, and does not affect the impact of Blakely on the Court's other sentencings.
[2] Thus, for example, if the government seeks an enhancement under the Guidelines, but the government is unable to prove the enhancement by a preponderance of the evidence, the Court will, of course, not enhance. And, if the enhancement is not in fact applied, there will be no Blakely problem with sentencing the defendant under the Guidelines.
[3] Section 3553(b)(1) provides that "[i]n the absence of an applicable sentencing guideline, the court shall impose an appropriate sentence, having due regard for the purposes set forth in subsection [18 U.S.C. § 3553](a)(2)."
[4] Of course, the Court does not have the authority to dictate to the government or the grand jury what it may include in an indictment. However, indictments containing allegations pertaining only to enhancements under the Guidelines will be subject to challenge by defendants via a motion to strike and it is my present intention not to allow | {
"pile_set_name": "FreeLaw"
} |
643 F.Supp.2d 507 (2009)
Theodore JENKINS, Plaintiff,
v.
NEW YORK CITY DEPARTMENT OF HOMELESS SERVICES, Defendant.
No. 09 Civ. 499(CM).
United States District Court, S.D. New York.
July 7, 2009.
*509 Theodore Jenkins, New York, NY, pro se.
Jeffrey Scott Dantowitz, Office of Corporation Counsel NYC, New York, NY, for Defendant.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
McMAHON, District Judge.
FACTS
In August 2007, Theodore Jenkins sought permanent housing from the New York City Department of Homeless Services ("DHS"). Jenkins underwent a psychiatric evaluation at the Bellevue Shelter on August 20, 2007. (Compl. Ex. A ("Greene Letter") 1). Jenkins was diagnosed with schizophrenia and placed in the Mental Health/Chemical Abuse ("MICA") program at the Fort Washington shelter. (Greene Letter 1). Jenkins is no longer in the shelter system and is now homeless. (Greene Letter 1).
Jenkins brings this lawsuit seeking placement in the general shelter population. (Greene Letter 4). He claims that he is not schizophrenic. (Greene Letter 4). Although the record is not clear, it appears that Jenkins voluntarily left the shelter system because he did not want to be assigned to the MICA facility. (Compl. 3) ("Claimant declined the offer of transfer to another MICA facility"), (Greene Letter 1) ("Due to his dissatisfaction with this placement, he is no longer in the shelter system at all").
On June 9, 2008 Ashley Greene, an attorney with the Mental Hygiene Legal Services, wrote DHS on behalf of Jenkins, Greene indicated DHS would reconsider Jenkins' placement if he underwent a second psychiatric evaluation with the doctor of his choice. (Greene Letter 1). Jenkins objects to undergoing any new psychiatric evaluation, he demands to be admitted to the general shelter population, with the goal of obtaining permanent housing. (Greene Letter 1, 4). There is no evidence that Jenkins has submitted to a second psychiatric evaluation, or that DHS has reconsidered its diagnosis and assigned him to the general shelter population, Mr. Jenkins has been homeless since January 2008. (Compl. 2).
On October 3, 2008, Mr. Jenkins filed a pro se complaint against DHS in this Court. (Compl. 1). The Defendant moved to dismiss the complaint on March 17, 2009, and the parties held an initial conference on March 20, 2009. Mr. Jenkins filed a response on March 23, 2009, and DHS replied on April 6, 2009.
STANDARD OF REVIEW
The Defendant moves to dismiss the complaint for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6), as well as a lack of subject matter jurisdiction on the Article 78 claim under Federal Rule of Civil Procedure 12(b)(1). Because Jenkins is a pro se party, his pleadings must be construed liberally and interpreted to make the strongest arguments they suggest. Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir.2007). In liberally construing the plaintiffs pleadings the Court should make "reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal *510 training". Id. at 639 (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.1983)).
In evaluating a 12(b)(6) motion, a complaint that only raises "the mere possibility of misconduct" does not establish that the plaintiff is entitled to relief. Ashcroft v. Iqbal, ___ U.S. ____, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). The plaintiff must establish that the allegations are pushed "across the line from conceivable to plausible". Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "Specific facts are not necessary" but the complaint must give the defendant fair notice of the plaintiff's claim. Erickson v. Pardus, 551 U.S. 89, 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007).
A pro se complaint should be treated more liberally than a complaint drafted by lawyers. Erickson, 551 U.S. at 89, 127 S.Ct. 2197. If a liberal reading of the pro se pleadings indicate a valid claim might be stated, and could be cured by better pleading, leave to amend the complaint should be granted. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000). However, this liberal interpretation "cannot be used to cure a complaint that consists merely of broad generalizations, sweeping castigations, and unfounded conclusions, but not specific facts from which an actual deprivation of constitutional rights may be inferred". Locicero, 419 F.Supp.2d at 525 (internal citations and quotations omitted). Therefore, if a liberal reading of a pro se complaint reveals a substantive lack of a cause of action, dismissal is appropriate. Cuoco, 222 F.3d at 112.
In evaluating the 12(b)(1) motion, the Plaintiff must establish federal question jurisdiction pursuant to 28 U.S.C. § 1331 because the parties are not diverse. Federal question jurisdiction is most commonly exercised in cases in which federal legislation creates a cause of action. Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 808, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986). In addition, federal-question jurisdiction extends to cases "where the vindication of a right under state law necessarily turned on some construction of federal law." Dow, 478 U.S. at 808, 106 S.Ct. 3229 (quoting Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 8, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)).
ISSUES
Is the fact that DHS is not a suable entity grounds for dismissal of the complaint?
The Defendant argues that the DHS, as a City agency, has not been authorized as a suable entity under the New York City Charter. Mot. to Dismiss 13. The Defendant is "clearly correct" and "the overwhelming body of authority holds that [a city agency] is not a suable entity". Renelique v. Doe, No. 99 Civ. 10425, 2003 WL 23023771, at *6 (S.D.N.Y. Dec. 29, 2003); New York City Charter Ch. 17 § 396.
However, the issue is whether this failure to plead the correct party is an example of an "inadvertent forfeiture of important rights because of [his] lack of legal training" that should be avoided by granting a pro se plaintiff leave to amend his complaint. Abbas, 480 F.3d at 639. Granting leave to amend the complaint to name the proper party should only be granted if the amended complaint would survive a motion to dismiss and the amendment would not be futile. Walker v. New York City Dep't of Corrections, No. 01 Civ. 1116, 2008 WL 4974425, at *7 (S.D.N.Y. Nov. 19, 2008).
In arguing that a city agency is not suable, the Defendant cites to Renelique, in which the court dismissed a pro se case after finding that the Department of Corrections ("DOC")the named defendant *511 was not a suable entity. 2003 WL 23023771, at *7. However, Renelique does not stand for the proposition that a case should be dismissed with prejudice if the wrong municipal entity is sued. Although the court determined the DOC was not a suable entity, it evaluated the motion for summary judgment and the potential liability of the City as if it were named as the defendant. Id. at *6-7. Summary judgment dismissing the complaint was granted, not because the wrong entity was sued, but because there was no evidence of a City policy that caused the plaintiffs injury. Id. at *12-3. The court did not address the possibility of granting leave to amend the complaint to name the proper defendant, although in light of the court's ruling on the merit s, such an amendment would have been futile.
In Walker v. New York City Department of Corrections, by contrast the court specifically addressed the failure of a pro se plaintiff to properly plead the City of New York and concluded that the plaintiff should be granted leave to amend the complaint to name the correct defendant unless granting leave to amend would be futile. No. 01 Civ. 1116, 2008 WL 4974425, at *7 (S.D.N.Y., Nov. 19, 2008). In Walker the plaintiff was acting pro se when she initially filed the complaint and named DOC as the defendant. 2008 WL 4974425, at *7. After filing the complaint Walker retained counsel and in response to DOC's motion to dismiss requested leave to amend the complaint and substitute the City of New York as the defendant. 2008 WL 4974425, at *7. In evaluating the motion the court noted that if the amended pleading would not survive a motion to dismiss it would be futile to grant leave to amend the complaint. Id. at *7 (citing Lucente v. IBM, 310 F.3d 243, 258 (2d Cir.2002)).
In this case, although | {
"pile_set_name": "FreeLaw"
} |
48 B.R. 591 (1985)
In re Thomas Rye PERRY and Jeri Lynn Perry, Debtors.
Thomas Rye PERRY, Plaintiff,
v.
GENERAL MOTORS ACCEPTANCE CORPORATION, Defendant.
Bankruptcy No. 383-01920, Adv. No. 383-0590.
United States Bankruptcy Court, M.D. Tennessee.
April 22, 1985.
*592 Daniel C. Masten, Nashville, Tenn., for debtors.
D. Reed Houk, Nashville, Tenn., for defendant.
MEMORANDUM
KEITH M. LUNDIN, Bankruptcy Judge.
The defendant in this action to recover a preference invites reconsideration of the rule announced in this district in Eggleston v. Third National Bank, 19 B.R. 280, 9 BANKR.CT.DEC. (CRR) 44 (Bankr.M.D. Tenn.1982). Eggleston held that wages garnished from a debtor within 90 days of a bankruptcy petition may be preferential transfers though the garnishment lien was executed upon the debtor outside of the 90-day preference period. The defendant argues that Eggleston is incorrect for the reasons stated in two circuit decisions rendered since Eggleston. See Askin Marine Co. v. Conner, 733 F.2d 1560, 1561 (11th Cir.1984); In re Coppie, 728 F.2d 951, 952 (7th Cir.1984), cert. denied sub nom., Gouveia v. Hammond Clinic, ___ U.S. ___, 105 S.Ct. 777, 83 L.Ed.2d 772 (1985). See also Riddervold v. Saratoga Hospital, 647 F.2d 342, 344 (2d Cir.1981). For the reasons stated below, this court believes that Eggleston is correctly decided.
The following constitute findings of fact and conclusions of law as required by Bankruptcy Rule 7052. This is a core proceeding. 28 U.S.C. § 157(b)(2)(F).
I.
On August 25, 1981, General Motors Acceptance Corporation ("GMAC") obtained a judgment for $2,344.93 against Thomas Rye Perry ("Perry") in the Metropolitan General Sessions Court for Davidson County, Tennessee. Perry made several voluntary payments to GMAC and paid part of the judgment through a garnishment. On March 10, 1983, GMAC executed a second *593 garnishment. The writ was served on Perry's employer on April 13, 1983.
On July 22, 1983, Perry filed a Chapter 7 petition.[1] Within the 90 days prior to the filing of Perry's petition, GMAC received $751.61 pursuant to its garnishment.[2] Perry scheduled the garnished wages as exempt property and filed a complaint to recover the garnished wages from GMAC as preferential transfers.[3] The matter is before the court on cross-motions for summary judgment.
II.
The Bankruptcy Code prescribes six elements that must be proven before a transfer is an avoidable preference: (1) the transfer of property of the debtor; (2) to or for the benefit of a creditor; (3) on account of an antecedent debt; (4) while the debtor was insolvent; (5) within 90 days before the filing of a petition; and (6) that enables the creditor to receive more than it would have received if the transfer had not been made and the case was under Chapter 7. 11 U.S.C.A. § 547(b). The trustee or debtor bears the burden of proof on each of these elements.[4]See Eggleston at 282. See also Steel Structures, Inc. v. Star Mfg. Co., 466 F.2d 207, 216 (6th Cir.1972).
In Eggleston, Judge Paine of this court held that a transfer of wages pursuant to a garnishment occurs when the debtor actually earns or otherwise becomes entitled to the wages. For preference purposes, he found this conclusion was required by 11 U.S.C.A. § 547(e)(3).[5] This holding is supported by much authority. See Matter of Morton, 44 B.R. 750 (Bankr.N.D.Ga.1984); Tabita v. Internal Revenue Service, 38 B.R. 511, 12 BANKR.CT.DEC. (CRR) 41 (Bankr.E.D.Pa.1984); Button v. Noe, 29 B.R. 118, 120 (Bankr.E.D.Tenn.1983); Larson v. Olympic Finance Co., 21 B.R. 264, 270 (Bankr.D.Utah 1982); Walden v. First Tennessee Bank, 19 B.R. 901 (Bankr.E.D. Tenn.1982); Mayo v. United Services *594 Automobile Ass'n., 19 B.R. 630, 632 (E.D. Va.1981); Evans v. CIT Financial Services, Inc., 16 B.R. 731, 733 (Bankr.N.D.Ga. 1982); Poutre v. Emery, 13 B.R. 689, 690 (Bankr.D.Vt.1981); Brengle v. Wilmington Trust Co., 10 B.R. 360, 362 (Bankr.D.Del. 1981); Cox v. General Electric Credit Corp., 10 B.R. 268, 270 (Bankr.D.Md.1981). Judge Paine examined the Tennessee garnishment law and determined that the garnishee "retains an interest in his wages until such interest is terminated by the court's payment of the garnished wages to the creditor." Eggleston at 285. See Walden v. First Tennessee Bank, 19 B.R. 901 (Bankr.E.D.Tenn.1982) (same view of Tennessee law). The court held that payment of garnished wages to a creditor within the 90-day period was a transfer of the debtor's property and could constitute a preference if the other elements identified above are present.
GMAC asserts that Eggleston incorrectly focused on the date the wages were earned by the debtor rather than whether the debtor had any "property interest" in the garnished wages after service of the original writ. I disagree with GMAC's interpretation of Eggleston.
In Eggleston, Judge Paine correctly determined that the debtor retains a property interest in garnished wages under Tennessee law sufficient to support a § 547 action. In Tennessee, garnishment is not a magical or mysterious super-power of collection for creditors; it is but one method among many by which creditors are permitted under state law to levy on a debtor's property to satisfy a debt. Under Tennessee law, a garnishment is merely a lien on the debtor's wages. TENN.CODE ANN. § 26-2-214(4) clearly provides that "a garnishment is a lien on salaries, wages, or other compensation due at the time of the service of the execution." (emphasis added). A lien is a charge or an incumbrance on property to secure payment or performance of debt, duty, or other obligation. United States v. Kentucky Home Mutual Life Insurance Co., 292 F.2d 39 (6th Cir.), cert. denied, 369 U.S. 803, 82 S.Ct. 642, 7 L.Ed.2d 550 (1961); In re Harpeth Motors, 135 F.Supp. 863 (M.D.Tenn.1956); Shipley v. Metropolitan Life Insurance Co., 25 Tenn.App. 452, 158 S.W.2d 739 (1942). A garnishment lien does not allow an immediate right of possession but affords security for the payment of the judgment underlying the garnishment.
Eggleston cites Beaumont v. Eason, 59 Tenn. (12 Heisk) 417 (1873). In Beaumont, the Tennessee Supreme Court conducted an extensive analysis of the operation and effect of Tennessee's garnishment statute. The court explained:
The legal effect of the levy of an execution by garnishment is well settled. . . . [The service of the garnishment] fixes a lien on the debt or effects in the hands of the garnishee, and he holds them under the control of the court, and acquires a special property in them as agent of the court. As such agent, it is the duty of the garnishee to go to the court with the effects in his hands belonging to the debtor and make answer according to the requirements of the process of garnishment. When he has answered, admitting his indebtedness, or that he has effects belonging to the debtor, the court proceeds to subject them to the satisfaction of the debt. . . . The garnishee becomes the agent of the court, not to sell, but to keep and return of the property for the action of the court. He is vested with the special title as a custodian of the property, but not with the title that authorizes him to sell and convey title . . . This is the necessary result of the legal fact of the service of garnishment does no more than vest in the garnishee a special title as a custodian for the court, and divests the title of the debtor only so far as to restrain his power to regain his property while it is in the custody of the garnishee.
Beaumont at 418-421 (emphasis added).
In Cumberland Telephone and Telegraph Co. v. Jenkins, 1 Tenn.C.C.A. (Higgins) 203, 206 (1910), the court again considered the "trustee" relationship between the garn | {
"pile_set_name": "FreeLaw"
} |
227 F.3d 352 (6th Cir. 2000)
Kentucky Association of Health Plans, Inc.; Advantage Care, Inc.; Aetna Health Plans of Ohio, Inc.; Choicecare Health Plans, Inc.; FHP of Ohio, Inc.; HMPK, Inc.; HPLAN, Inc.; Humana Health Plan, Inc., Plaintiffs-Appellants,v.George Nichols, III, in his official capacity as Commissioner of the Kentucky Department of Insurance,Defendant-Appellee.
No. 98-6308
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Argued: September 20, 1999Decided and Filed: September 7, 2000
Appeal from the United States District Court for the Eastern District of Kentucky at Frankfort. Nos. 97-00024--Joseph M. Hood, District Judge.[Copyrighted Material Omitted]
Barbara Reid Hartung, Greenebaum, Doll, & McDonald, Louisville, KY, Robert N. Eccles, Karen M. Wahle, O'MELVENY & MYERS, Washington, D.C., for Appellants.
Shaun T. Orme, Anna R. Gwinn, KENTUCKY DEPARTMENT OF INSURANCE, Frankfort, Kentucky, for Appellee.
Before: KENNEDY and NORRIS, Circuit Judges; HOLSCHUH,* District Judge.
HOLSCHUH, D. J., delivered the opinion of the court, in which NORRIS, J., joined. KENNEDY, J. (pp. 372-84), delivered a separate dissenting opinion with respect to Part III of the majority opinion.
OPINION
1
HOLSCHUH, District Judge.
2
Plaintiffs are seven health maintenance organizations (HMOs) licensed under the laws of Kentucky, and the Kentucky Association of Health Plans, Inc., a non-profit association organized to promote the business interest of its HMO members (hereinafter referred to as "plaintiffs"). Plaintiffs filed this action against George Nichols III ("defendant"), in his official capacity as Commissioner of the Kentucky Department of Insurance. Plaintiffs argued that Kentucky Revised Statutes Annotated §§ 304.17A-110(3) and 304.17A-171(1)-(8) (Banks-Baldwin 1995), should be found preempted by the Employee Retirement Income Security Act of 1974 ("ERISA"), and sought injunctive relief from their enforcement. Both parties moved for summary judgment. The district court denied plaintiffs' request for summary judgment and granted defendant's cross-motion for summary judgment, concluding that §§ 304.17A-110(3) and 304.17A-171(2) were saved from preemption by ERISA because they "regulated insurance" under ERISA's savings clause. Plaintiffs assert that the district court erred in this conclusion.
I. The State Statutes
3
In 1994, the Kentucky General Assembly enacted the Kentucky Health Care Reform Act (the "Act"). The Act contained an "Any Willing Provider" provision that stated: "Health care benefit plans shall not discriminate against any provider who is located within the geographic coverage area of the health benefit plan and is willing to meet the terms and conditions for participation established by the health benefit plan." Ky. Rev. Stat. Ann. § 304.17A-110(3) (Banks-Baldwin 1995). The Act defined a health benefit plan as:
4
[Any] hospital or medical expense policy or certificate; nonprofit hospital, medical-surgical, and health service corporation contract or certificate; a self-insured plan or a plan provided by a multiple employer welfare arrangement, to the extent permitted by ERISA; health maintenance organization contract; and standard and supplemental health benefit plan as established in KRS 304.17A-160. § 304.17A-100(4)(a) (Banks Baldwin 1995).
5
In 1996, the Kentucky General Assembly added §§ 304.17A-170 and 171 to the code. The additions specifically regulate how "health benefit plans" can interact with chiropractors1. Not only does the statute contain an "any willing provider" provision addressed particularly to chiropractors,2 but it also imposes various additional requirements on health benefit plans that include chiropractic benefits3. See § 304.17A-171.
6
In April of 1997, plaintiffs filed suit in the Eastern District of Kentucky, requesting that § 304.17A-110(3) and § 304.17A-171 (for convenience we will collectively refer to § 304.17A-110(3) and § 304.17A-171(2) as Kentucky's "AWP" laws) be declared, among other things, preempted by § 514(a) of ERISA, 29 U.S.C. § 1144(a). Plaintiffs moved for partial summary judgment on the issue and Commissioner Nichols cross-moved for partial summary judgment as well. The district court determined that while the Kentucky AWP laws were related to employee benefit plans under ERISA § 514(a), they regulated the business of insurance and therefore fell under the saving clause of § 514(b), 29 U.S.C. § 1144(b)(2)(A). The court thus granted partial summary judgment in favor of Commissioner Nichols and determined its order to be final and appealable. This appeal followed.
7
Sections 304.17A-110(3) and 304.17A-100(4)(a) were repealed by the Kentucky legislature effective July 1, 1999. The parties acknowledge that this appeal is not moot, however, as the legislature, through House Bill No. 315 (Ky. 1998), replaced the repealed provisions with the same requirements, but substituted the term "health insurer" for "health benefit plan" in its any willing provider provision, now located at Kentucky Revised Statutes Annotated § 304.17A-270 (Banks-Baldwin 1999). The Bill's definition of "insurer" was codified at Kentucky Revised Statutes Annotated § 304.17A-005(22) (Banks-Baldwin 1999), which defines "insurer" as:
8
[A]ny insurance company; health maintenance organization; self-insurer or multiple employer welfare arrangement not exempt from state regulation by ERISA; provider- sponsored integrated health delivery network; self-insured employer-organized association, or nonprofit hospital, medical-surgical, dental, or health service corporation authorized to transact health insurance business in Kentucky.
9
The parties having agreed that this appeal is not rendered moot by the new language used in the present statutes, the court will consider the AWP laws in their present form in the court's analysis of their validity, rather than adjudicating the validity of repealed statutes.
10
The chiropractic provisions contained in § 304.17A-171 and § 304.17A-170 were left intact by House Bill No. 315 and continue to remain unchanged.
11
The issue of the potential preemption of §§ 304.17A-270 and 304.17A-171(2) by ERISA is therefore properly before this court4. We review a district court's decision to grant summary judgment de novo, applying the same test as that employed by the district court. Wathen v. General Elec. Co., 115 F.3d 400, 403 (6th Cir. 1997). Summary judgment is proper ifthere is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. See Schachner v. Blue Cross & Blue Shield of Ohio, 77 F.3d 889, 892-93 (6th Cir. 1996).
II. Preemption
12
We are required by this appeal to define the boundaries of preemption under ERISA § 514 (a) and (b), 29 U.S.C. § 1144(a) and (b). Section 514(a), the preemption provision, reads:
13
Except as provided in subsection (b) of this section, the provisions of this subchapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title and not exempt under section 1003(b) of this title (emphasis added).
14
Section 514(b)(2)(A), the "savings" provision, reads:
15
Except as provided in subparagraph (B), nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking or securities.
16
Section 514(b)(2)(B), the "deemer" provision, reads:
17
Neither an employee benefit plan described in section 1003(a) of this title, which is not exempt under section 1003(b) of this title (other than a plan established primarily for the purpose of providing death benefits), nor any trust established under such a plan, shall be deemed to be an insurance company or other insurer, bank, trust company, or investment company or to be engaged in the business of insurance or banking for purposes of any law of any State purporting to regulate insurance companies, insurance contracts, banks, trust companies, or investment companies.
18
The federal courts have addressed the scope of ERISA's preemption of State law on numerous occasions; however, the wording of the Act combined with the obvious federalism concerns involved have made it difficult to discern clear boundaries. Many courts, including the Supreme Court, have commented on the vexingly broad and ambiguous nature of the provisions.5 Despite such interpretational difficulties, we must determine whether Kentucky Revised Statutes Annotated §§ 304.17A- | {
"pile_set_name": "FreeLaw"
} |
87 F.3d 1170
71 Fair Empl.Prac.Cas. (BNA) 339, 5 A.D. Cases 1064,17 A.D.D. 1105, 8 NDLR P 170
Jamie LOWE, Plaintiff-Appellant,v.ANGELO'S ITALIAN FOODS, INC., and its Representatives, andAngelo Fasciano and John P. Fasciano, Defendants-Appellees.
No. 95-3064.
United States Court of Appeals,Tenth Circuit.
July 2, 1996.
Jose Hurlstone-Peggs (William L. Fry with her on the brief), William L. Fry, P.A., Wichita, Kansas, for Plaintiff-Appellant.
Alexander B. Mitchell, II, Klenda, Mitchell, Austerman & Zuercher, L.L.C., Wichita, Kansas, for Defendants-Appellees.
John P. Rowe, General Counsel (Acting), (Gwendolyn Young Reams, Associate General Counsel, Vincent J. Blackwood, Assistant General Counsel, John F. Suhre, Attorney, with him on the brief), Washington, D.C., filed an amicus curiae brief for the Equal Employment Opportunity Commission.
Before BALDOCK, BRISCOE, and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.
1
Defendant terminated plaintiff's employment and plaintiff responded by filing this action, alleging violations of both the Americans with Disabilities Act ("ADA") and Title VII of the Civil Rights Act of 1964. Plaintiff also sought recovery for intentional infliction of emotional distress. The district court granted summary judgment to defendants. The court held that plaintiff was not disabled under the ADA; that she had failed to present a prima facie case of sex discrimination; and that she had failed to allege sufficient facts to support her state law claim for intentional infliction of emotional distress. We affirm the grant of summary judgment to defendants on plaintiff's Title VII and pendent state law claims. We reverse the grant of summary judgment on plaintiff's ADA claim, however, because plaintiff has presented evidence which creates a genuine issue of fact with respect to whether her ability to lift is substantially impaired. We hold that lifting is a "major life activity" and that an individual whose ability to lift is substantially impaired qualifies as a disabled person within the meaning of the ADA.
2
In late August 1992, plaintiff Jamie Lowe began work for defendant Angelo's Italian Foods, an Italian restaurant located in Wichita, Kansas. Her duties included purchasing and inventory control. When Lowe initially interviewed for a position at Angelo's, she heard a line cook remark "no skirts in the kitchen." Because the cook who made this remark left Angelo's the very next day, Lowe never saw him again.
3
In addition, during the nine weeks she was employed at Angelo's, Lowe's supervisor, defendant Angelo Fasciano, referred to her as "girl" or "girlie" when he couldn't remember her name. Fasciano also required Lowe to wear dress clothes, while two of her male co-workers were allowed to wear jeans and t-shirts. Once when Lowe wore red slacks and a red shirt to work, Fasciano told her "no more of this red thing."
4
On October 22, 1992, Lowe presented Fasciano with a letter from her doctor. The letter stated:
5
Jamie Lowe has seen me recently regarding pain and weakness in her right leg. Because of her neurological problems she fatigues exceedingly easily and needs to be able to sit down occasionally. She is not going to be able to do lots of stooping, bending and cannot carry anything heavy (greater than 15 lbs.) and anything up to 15 lbs. only occasionally. She should avoid stairs. She needs to use a hand rail if she has to climb stairs, so [sic] cannot climb stairs and carry anything.
6
Lowe was terminated that same day. She was thereafter diagnosed with multiple sclerosis.
7
This court reviews the district court's entry of summary judgment de novo, applying the same legal standard used by the district court. Schusterman v. United States, 63 F.3d 986, 989 (10th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1823, 134 L.Ed.2d 929 (1996). Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Summary judgment should be denied "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
8
Lowe first argues that the district court erred by granting summary judgment to defendants on her ADA claim. Title I of the ADA provides that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, [or] the hiring, advancement, or discharge of employees." 42 U.S.C. § 12112(a). To maintain a claim for wrongful discharge under the ADA, a plaintiff must demonstrate (1) that she is a disabled person within the meaning of the ADA; (2) that she is able to perform the essential functions of the job with or without reasonable accommodation; and (3) that the employer terminated her because of her disability. White v. York Int'l Corp., 45 F.3d 357, 360-61 (10th Cir.1995).
The term "disability" is defined as:
9
(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
10
(B) a record of such an impairment; or
11
(C) being regarded as having such an impairment.
12
42 U.S.C. § 12102(2). The term "major life activity" as defined in the regulations implementing the ADA encompasses "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working." 29 C.F.R. § 1630.2(i). The appendix to the regulations provides that "other major life activities include, but are not limited to, sitting, standing, lifting, reaching." 29 C.F.R. Pt. 1630, Appendix to Part 1630--Interpretive Guidance to Title I of the ADA, § 1630.2(i) (citing S.Rep. No. 116, 101st Cong., 1st Sess. 22 (1989); H.R.Rep. No. 485 part 2, 101st Cong., 2d Sess. 52 (1990); H.R.Rep. No. 485 part 3, 101st Cong., 2d Sess. 28 (1990)).
13
The term "substantially limits" means "[s]ignificantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity." 29 C.F.R. § 1630.2(j)(1)(ii). The three factors to be considered when determining whether an impairment substantially limits a major life activity are "(i) [t]he nature and severity of the impairment; (ii) [t]he duration or expected duration of the impairment; and (iii) [t]he permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment." Id. § 1630.2(j)(2).
14
Three additional factors may be considered when the individual claims that the impairment substantially limits her in the major life activity of working. Id. § 1630.2(j)(3)(ii). These factors are:
15
(A) [t]he geographical area to which the individual has reasonable access;
16
(B) [t]he job from which the individual has been disqualified because of an impairment, and the number and types of jobs utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (class of jobs); and/or
17
(C) [t]he job from which the individual has been disqualified because of an impairment, and the number and types of other jobs not utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (broad range of jobs in various classes).
18
Id. Focusing on these additional factors, the district court held that Lowe failed to present evidence that her impairment was substantially limiting.
19
Applying the first three factors laid out in the regulations, the evidence indicates that Lowe suffers from multiple sclerosis or MS; that as a result of her MS, Lowe is unable to lift items weighing more than fifteen pounds and that she should lift items weighing less than fifteen pounds only occasionally; that MS is a neurological disease for which there is no known cure; and that the long-term impact of the disease will vary depending on the form the MS takes. | {
"pile_set_name": "FreeLaw"
} |
35 A.3d 682 (2012)
209 N.J. 96
PEREZ
v.
PROFESSIONALLY GREEN, LLC.
C-523 September Term 2011, 069482
Supreme Court of New Jersey.
January 19, 2012.
Petition for Certification Granted.
| {
"pile_set_name": "FreeLaw"
} |
85 So.3d 1179 (2012)
Christina YACOUB, Appellant,
v.
STATE of Florida, Appellee.
No. 4D10-2400.
District Court of Appeal of Florida, Fourth District.
April 18, 2012.
Rehearing Denied May 16, 2012.
Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
GROSS, J.
Christina Yacoub appeals her conviction and sentence for felony driving under the influence. We reverse because the state failed to satisfy its burden of proving that Yacoub was either provided counsel or validly *1180 waived the right with respect to a previous misdemeanor conviction.
On July 4, 2008, the state charged Yacoub with felony driving under the influence. The felony charge was based on her guilty plea to two misdemeanor DUI offenses within the past ten years. See § 316.193(2)(b), Fla. Stat. (2008). Yacoub moved to dismiss the charge for lack of jurisdiction, arguing that there was no valid felony charge to prosecute in circuit court since one of her 2002 DUI convictions had been uncounseled. Following a hearing, the trial court denied the motion.
A defendant charged with felony DUI may move to dismiss the charge by alleging that the state is improperly relying on a prior uncounseled misdemeanor DUI conviction. See State v. Kelly, 999 So.2d 1029, 1052 (Fla.2008). To validly raise such a jurisdictional challenge, the defendant must satisfy an initial burden of production by asserting under oath "(1) that the [prior] offense involved was punishable by more than six months of imprisonment or that the defendant was actually subjected to a term of imprisonment; (2) that the defendant was indigent and, thus, entitled to court-appointed counsel; (3) [that] counsel was not appointed; and (4) [that] the right to counsel was not waived." Id. at 1037 (citing State v. Beach, 592 So.2d 237, 239 (Fla.1992)). If the defendant carries this minimalistic burden, then the "burden of persuasion shifts to the state to show either that counsel was provided or that the right to counsel was validly waived." See id. at 1053.
At the hearing on the motion in this case, the parties stipulated that Yacoub pleaded guilty to two prior DUIs on the same date in 2002 before the same judge, while Yacoub was in custody. They further agreed that one DUI was handled by the public defender's office and that the second was punishable by imprisonment. The state had the burden of establishing that counsel was provided for the second DUI or that Yacoub validly waived her right to counsel. The state offered no transcript of the 2002 plea conference and no other evidence of what occurred. The state produced no written waiver of the right to counsel. See Fla. R.Crim. P. 3.160(e). The lawyer who was present for Yacoub on one DUI at the 2002 hearing did not appear to testify. The state argued that the temporal proximity of the two pleas circumstantially established that both pleas were entered on the advice of counsel. The trial judge accepted this view. However, the state's "showing" failed to meet the requirements of Beach and Kelly, which require "evidence in the record" "`to show [1] either that counsel was provided or [2] that the right to counsel was validly waived.'" Beach, 592 So.2d at 239; Kelly, 999 So.2d at 1037 (quoting Beach) (emphasis in original). The sparse record failed to carry the state's burden of persuasion under Kelly and Beach. We therefore reverse the felony conviction and remand to the circuit court to resentence Yacoub to misdemeanor driving under the influence.
Reversed and remanded.
MAY, C.J., and DAMOORGIAN, J., concur.
| {
"pile_set_name": "FreeLaw"
} |
No. 2--01--1207
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Lake County.
)
Plaintiff-Appellee, )
)
v. ) No. 00--CF--1885
)
CARLOS A. RIVERA, ) Honorable
) Victoria A. Rossetti,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________
JUSTICE BOWMAN delivered the opinion of the court:
Defendant, Carlos Rivera, appeals the circuit court's order summarily dismissing his petition pursuant to the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122--1
et seq.
(West 2000)). Defendant contends that the petition states a valid claim that he was deprived of the effective assistance of counsel when his lawyer did not heed his request to appeal. We reverse and remand.
Defendant pleaded guilty to aggravated criminal sexual abuse (720 ILCS 5/12--16(d) (West 2000)). A plea agreement called for a sentence cap of five years. After hearing the factual basis, the trial court accepted the plea and sentenced defendant to three years' imprisonment. The court later granted defendant's motion to reconsider the sentence and resentenced him to 4 years' probation, including 20 months' periodic imprisonment.
Defendant did not file a direct appeal. However, on July 25, 2001, he filed a postconviction petition. Defendant asserted that he was deprived of the effective assistance of counsel when his lawyer did not perfect an appeal after defendant asked him to do so. The petition also alleged that a felony charge was not appropriate to the facts of the case, that a sentence of more than one year of periodic imprisonment was illegal, and that he did not receive day-for-day credit to which he was entitled.
The trial court summarily dismissed the petition, but ordered that defendant receive credit against his periodic imprisonment term for time he spent in jail. Defendant timely appealed.
Defendant argues that the trial court erred in summarily dismissing his petition because it stated the gist of a constitutional claim of ineffective assistance of counsel. He contends that counsel's failure to perfect a direct appeal after defendant asked him to do so amounts to
per se
ineffective assistance.
The Act provides a procedural mechanism for a criminal defendant to assert that he was deprived of a constitutional right during the proceedings resulting in his conviction.
People v. Enis
, 194 Ill. 2d 361, 375-76 (2000). A postconviction proceeding is a collateral attack on the conviction and is not intended to relitigate a defendant's guilt or innocence.
People v. Evans
, 186 Ill. 2d 83, 89 (1999).
A defendant is not entitled to an evidentiary hearing unless the petition's allegations, supported by the trial record and any accompanying affidavits, make a substantial showing of a constitutional violation.
Enis
, 194 Ill. 2d at 376. A ruling on the sufficiency of defendant's allegations is a legal determination and, therefore, our review is
de novo
.
People v. Coleman
, 183 Ill. 2d 366, 378 (1998).
In
People v. Edwards
, 197 Ill. 2d 239, 253 (2001), the court held that defense counsel was ineffective for ignoring the defendant's instructions to appeal, even though the defendant had pleaded guilty and did not identify a specific issue he wished to raise. A defendant whose lawyer fails to perfect an appeal does not have to show prejudice beyond the fact that he lost his right to appeal.
People v. Swanson
, 276 Ill. App. 3d 130, 132 (1995). Here, as in
Edwards
and
Swanson
, defendant alleges that he requested an appeal but his lawyer did not take the necessary steps to perfect one.
The State first contends that defendant waived this issue because the record on appeal does not contain a transcript from a hearing held on October 12, 2001, at which the trial court disposed of defendant's petition. However, the minute order from that date states that only the trial judge was present and the matter was "STRICKEN FROM CALL." Thus, it is apparent that no hearing occurred on that date.
The State's response on the merits is difficult to follow. The State repeatedly refers to defense counsel's statement that they "have been able to provide a certificate pursuant to [Supreme Court Rule
] 604(d)." See 188 Ill. 2d R. 604(d). The State does not provide a record citation for this statement (see 188 Ill. 2d R. 341(e)(7)) but presumably intends to refer to a statement in the motion to reconsider the sentence. The significance of this statement is not apparent. There is no dispute that defense counsel filed a motion to reconsider the sentence. Despite the ambiguous reference in the motion, no Rule 604(d) certificate appears in the record on appeal. However, because defendant's plea was partially negotiated, a motion to reconsider the sentence was improper and did not preserve defendant's right to appeal. See
People v. Linder
, 186 Ill. 2d 67, 74 (1999). Thus, whether or not defense counsel filed a Rule 604(d) certificate in conjunction with the motion to reconsider the sentence simply has no bearing on whether counsel perfected defendant's appeal.
Citing
People v. Lemons
, 242 Ill. App. 3d 941, 946 (1993), the State argues that the petition fails to state "sufficient facts" from which a constitutional claim can be found. However, in
Edwards
, the supreme court held that a petition need only state the "gist" of a constitutional claim.
Edwards
, 197 Ill. 2d at 244. The court held that the
Lemons
"sufficient facts" test is "at odds with this court's holdings and should be avoided."
Edwards
, 197 Ill. 2d at 244. The State does not contend that the petition fails to state the gist of a constitutional claim.
The State also appears to argue that defendant did not file an affidavit in support of his allegation that he asked his lawyer to appeal. See 725 ILCS 5/122--2 (West 2000). Other than the overruled appellate court decision in
Lemons
, the State cites no authority for its contention that the absence of an affidavit is fatal to a postconviction petition. In
People v. Boclair
, 202 Ill. 2d 89, 99-100 (2002), the court stated that at the first stage of postconviction review:
"The circuit court is required to make an independent assessment in the summary review stage as to whether the allegations in the petition, liberally construed and taken as true, set forth a constitutional claim for relief. The court is further foreclosed from engaging in any fact finding or any review of matters beyond the allegations of the petition.
People v. Coleman
, 183 Ill. 2d 366 (1998).
To survive dismissal at this stage, the petition must only present 'the gist of a constitutional claim.' "
Boclair
, 202 Ill. 2d at 99-100, quoting
People v. Gaultney
, 174 Ill. 2d 410, 418 (1996).
Requiring the circuit court at the first stage to examine the petition's evidentiary support would require the court to "review *** matters beyond the allegations of the petition."
Boclair
, 202 Ill. 2d at 99.
Although the State does not cite it,
People v. Collins
, 202 Ill. 2d 59 (2002), held that the circuit court properly dismissed at the first stage a petition that was not accompanied by affidavits.
Collins
, 202 Ill. 2d at 66. In a strongly worded dissent upon denial of rehearing, Justice McMorrow, joined by Justice Freeman, argued that
Collins
is completely inconsistent with
Boclair
and that
Boclair
, as the later decision, should be followed.
Collins
, 202 Ill. 2d at 75-83 (McMorrow, J., dissenting, joined by Freeman, J.). However, assuming that
Collins
remains viable, it is distinguishable from this case.
Section 122--2 of the Act provides that a petition be accompanied by "affidavits, records, or other evidence supporting its allegations." 725 ILCS 5/122--2 (West 2000). The requirement of "affidavits, records, or other evidence" is stated with the disjunctive word "or." Therefore, any one of the three forms of proof will suffice. See
People v. Roake
, 334 Ill. App. 3d 504, 511 (2002). In
Collins
, the only attachment to the petition was a verification page without reference to any statutory provision (
Collins
, 202 Ill. 2d at 62), which the court held did not meet the affidavit requirement of section 122--2 (
Collins | {
"pile_set_name": "FreeLaw"
} |
458 F.2d 36
UNITED STATES of America, Appellee,v.Billy Delano WALDEN, Appellant.UNITED STATES of America, Appellee,v.Gene Claude EASTERLING, Appellant.UNITED STATES of America, Appellee,v.John Thomas ARD, Appellant.UNITED STATES of America, Appellee,v.Fruent C. KIMES, Appellant.UNITED STATES of America, Appellee,v.Albert Harry WEATHERSBY, Appellant.UNITED STATES of America, Appellee,v.Joe Pat DAMOUR, Appellant.UNITED STATES of America, Appellee,v.Robert Emerson WHITE, Appellant.UNITED STATES of America, Appellee,v.Louis Paul MATRANGA, Appellant.UNITED STATES of America, Appellee,v.William Steven COOK, Appellant.UNITED STATES of America, Appellee,v.Richard Brent HOGAN, Appellant.
Nos. 14974-14983.
United States Court of Appeals,Fourth Circuit.
May 4, 1972.
ORDER
1
On reconsideration en banc, the decision of the district court with respect to the question of double jeopardy is affirmed by an equally divided court.
2
The cases are remanded by the full court to the original panel for disposition of the remaining questions on appeal.
| {
"pile_set_name": "FreeLaw"
} |
379 B.R. 40 (2007)
In re SUMMIT METALS, INC., Debtor.
No. 98-2870-KJC.
United States Bankruptcy Court, D. Delaware.
December 4, 2007.
*41 *42 *43 *44 *45 Jennifer Lee Scoliard, Philadelphia, PA, Joanne. Bianco Wills, Klehr Harrison Harvey Branzburg & Ellers, Steven K. Kortanek, Womble Carlyle Sandridge & Rice, PLLC, Wilmington, DE, for Debtor.
Joseph J. Bodnar, Esq., Law Offices of Joseph J. Bodnar, Kevin J. Mangan, Womble Carlyle Sandridge & Rice PLLC, Wilmington, DE, for trustee.
Barry M. Klayman, Todd Charles Schiltz, Esq., Wolf, Block, Schoor & Solis-Cohen LLP, Wilmington, DE, H. Adam Prussin, Pomerantz Haudek Block Grossman & Gross, New York, NY, for Creditor Committee.
OPINION[1]
KEVIN J. CAREY, Bankruptcy Judge.
INTRODUCTION
JEPSCO, Ltd. ("Jepsco") and Ambrose M. Richardson, Esq. ("Richardson") have filed applications seeking the allowance of fees and expenses as administrative expenses pursuant to section 503(b) of the Bankruptcy Code. The Chapter 11 Trustee, the United States Trustee, and the Official Committee of Unsecured Creditors (the "Committee") (collectively, the "Objecting Parties") have objected. The Court held evidentiary hearings on February 23, March 16, and April 4, 2006 and accepted post-hearing briefs from the parties.
For the reasons set forth below, the Court will deny Jepsco's request and grant in part and deny in part Richardson's request.
BACKGROUND
A. The Summit Metals Bankruptcy and the Events Preceding
A brief explanation of the events leading to and surrounding the filing of this chapter 11 proceeding (the "Case")[2] is helpful to the resolution of the instant dispute.
*46 1. The New York Proceedings
During the period from 1991 to 1995, Richard E. Gray, the sole director and majority shareholder of The Chariot Group, Inc. ("Chariot") caused Chariot to pay approximately $7.7 million in fees to its indirect majority shareholder, Chariot Holdings Ltd. ("Chariot Holdings"), and to VDC Recovery Corporation, a Gray-controlled entity. During this time, Gray also caused Chariot to write-off loans it had made to Chariot Holdings and to Gray. These events led to the August 1995 filing of a New York shareholder lawsuit against Gray (the "First N.Y. Shareholder Lawsuit").
After the commencement of the First N.Y. Shareholder Lawsuit, Gray attempted to sell Chariot's operating subsidiaries Energy Savings Products, Inc. ("ESP"), in which Chariot held a 92% interest, and B.F. Rich Co., Inc. ("B.F.Rich"), ESP's wholly-owned subsidiary. Gray was successful in June 1995, causing Chariot to sell its interest in ESP to Homestar Acquisition Corporation ("Homestar Acquisition"), a company wholly owned by Gray. In exchange for ESP's stock, Gray arranged for Chariot to receive a $15 million note (the "Note") from Hallowell Industries, Inc. ("Hallowell"), another entity owned and controlled by Gray. Following the sale of ESP to Homestar Acquisition, Gray merged Homestar Acquisition into ESP. The Note remains unpaid.
In August 1995, Gray merged Summit Metals, Inc. ("Summit" or the "Debtor") with Chariot, transferred the remaining Chariot operations to Chariot Management, Inc., another entity affiliated with Gray, and shut down Chariot operations. The events surrounding the Summit/Chariot merger led to the filing of a second shareholder lawsuit (the "Second N.Y. Shareholder Lawsuit," together, with the First N.Y. Shareholder Lawsuit, the "NY Shareholder Lawsuits").
In October 1996, the plaintiffs in the N.Y. Shareholder Lawsuits successfully obtained preliminary injunctive relief with respect to the: (i) alleged looting of Chariot by Gray; (ii) sale of Chariot's interest in ESP to Homestar Acquisition; and (iii) merger of Chariot into Summit (the "Preliminary Injunction Proceeding"). As a result, Gray was enjoined from transferring any of ESP's assets to himself or any other entity that he owned or controlled (the "Preliminary Injunction"). In October 1998, Gray was found to have violated the Preliminary Injunction by misappropriating $4.3 million from ESP and was held in civil contempt (the "Contempt Proceeding"). An order was entered in January 1999 providing Gray an opportunity to purge the judgement of contempt by returning the $4.3 million. However, Gray refused to do so. He was committed to prison from November 2001 until November 2003, at which time he stipulated to deposit the stock of the Debtor, ESP, Rivco (as defined below), and Jenkins (as defined below) into escrow pending the resolution of the DE Adversary Proceeding (as defined below).
2. The Delaware Proceedings
On December 30, 1998, the Debtor commenced this Case, seeking protection under chapter 11 of the Bankruptcy Code. The filing of the petition stayed the N.Y. Shareholder Lawsuits. The Committee was formed by the United States Trustee on March 4, 1999. Richardson, the former *47 partner of Gray and officer of Chariot and its subsidiaries, was appointed as its Chairman. On October 1, 2004, the Court appointed Francis A. Monaco, Jr. as the Chapter 11 Trustee.
On October 29, 1999, the Committee filed a complaint on behalf of the Debtor to recover property from Gray and his affiliated entities, including ESP (the "DE Adversary Proceeding"). The Complaint alleged that Gray breached his fiduciary duties owed to the Debtor and Chariot by engaging in unfair and fraudulent self-dealing transactions, which included the looting of Chariot from 1991 to 1995 and the sale of Chariot's interest in ESP for the unpaid Note. The Complaint also alleged that, following the shut-down of Chariot's operations, Gray took two corporate opportunities of the Debtor when he acquired ownership in Riverside Millwork Co., Inc. ("Rivco") and Jenkins Manufacturing, Inc. ("Jenkins") with the Debtor's money. On August 6, 2004, the District Court for the District of Delaware found for the Debtor, awarding a $40 million judgment against Gray and directing Gray and his affiliated entities to transfer their interests in Rivco and Jenkins to the Debtor. In 2005, the Debtor sold its interests in Rivco and Jenkins the estate's only marketable assets for approximately $18 million.
3. Miscellaneous Relevant Proceedings
In 1997, creditors commenced an involuntary bankruptcy proceeding against Homestar Industries, Inc. ("Homestar"), another entity owned by Gray, in the Eastern District of Missouri (the "MO Bankruptcy Proceeding"). A chapter 7 trustee was subsequently appointed, who recovered approximately $600,000 in insurance proceeds misappropriated by Gray from Homestar (the "MO Adversary Proceeding"). While in prison for contempt, Gray pled guilty to bankruptcy and tax fraud relating to the MO Bankruptcy Proceeding (the "MO Criminal Proceeding"). Additional unrelated criminal investigations into Gray's activities also occurred in Connecticut and New York.
In 2000, while the DE Adversary Proceeding was pending, creditors of ESP commenced an involuntary bankruptcy proceeding against it in the Middle District of Tennessee (the "TN Bankruptcy Proceeding"). Following the commencement of the TN Adversary Proceeding (as defined below), the Committee dismissed ESP as a defendant from the DE Adversary Proceeding. The Committee then filed a proof of claim on behalf of the Debtor in the TN Bankruptcy Proceeding. To resolve ESP's objection to the Debtor's proof of claim, the Committee agreed to relinquish the Debtor's claim against ESP in exchange for 92% of ESP's outstanding equity post-bankruptcy and any of ESP's rights or causes of action against Gray or his affiliated entities, including any Rivco and Jenkins corporate opportunity Claims.
In 2001, Richardson commenced a lawsuit in New Hampshire against Gray and his affiliated entities on the Debtor's behalf, alleging claims identical to those alleged in the DE Adversary Proceeding (the "NH Proceeding"). The NH Proceeding was stayed shortly thereafter.
4. Proceedings Against Richardson
Four separate proceedings filed against Richardson are relevant here. First, prior to the filing of this Case, Gray and Summit sued Richardson in New York, alleging that Richardson violated his fiduciary duties as an officer of Chariot (the "Richardson Fiduciary Duty Proceeding"). Ultimately, the Richardson Fiduciary Duty Proceeding was dismissed and Summit was *48 held responsible to indemnify Richardson for his fees and expenses.
In 1998, a portion of Richardson's fees and expenses incurred in the Richardson Fiduciary Proceeding was reimbursed by Summit. It was this reimbursement that was the subject of the second proceeding against Richardson. In May 1999, following the commencement of this Case, the Debtor filed an adversary proceeding against Richardson seeking the avoidance and recovery of the reimbursement as an alleged preference (the "Richardson Preference Proceeding").
The third proceeding against Richardson was commenced in August 1999 by the Debtor and alleged racketeering, conspiracy, tortious interference with a contract and economic relations, prima facie tort, abuse of process, breach of fiduciary duty, and | {
"pile_set_name": "FreeLaw"
} |
562 F.Supp.2d 511 (2008)
CSX CORPORATION, Plaintiff,
v.
THE CHILDREN'S INVESTMENT FUND MANAGEMENT (UK) LLP, et al., Defendants,
v.
Michael J. Ward, Additional Counterclaim Defendant.
No. 08 Civ. 2764(LAK).
United States District Court, S.D. New York.
June 11, 2008.
*514 Rory O. Millson, Francis P. Barron, David R. Marriott, Cravath, Swaine & Moore LLP, for Plaintiff and Additional Counterclaim Defendant.
Howard O. Godnick, Michael E. Swartz, Yocheved Cohen, Schulte Roth & Zabel LLP, for Defendants The Children's Investment Fund Management (UK) LLP, The Children's Investment Fund Management (Cayman) LTD, The Children's Investment Manager Fund, Christopher Hohn, and Snehal Amin.
Peter Duffy Doyle, Andrew M. Genser, Kirkland & Ellis LLP, for Defendants 3G Capital Partners Ltd., 3G Capital Partners, L.P., 3G Fund, LP and Alexandre Behring (a/k/a Alexandre Behring Costa).
David M. Becker, Edward J. Rosen, Michael D. Dayan, Cleary Gottlieb Steen & Hamilton LLP, for Amici Curiae International Swaps and Derivatives Associations, Inc. and Securities Industry and Financial Markets Association.
Adam H. Offenhartz, Aric H. Wu, J. Ross Wallin, LaShann M. DeArcey, Gibson Dunn & Crutcher LLP, for Amicus Curiae Coalition of Private Investment Companies.
Brian Breheny, Division of Corporation Finance, for Amicus Curiae Division of Corporation Finance, Securities and Exchange Commission.
OPINION
LEWIS A. KAPLAN, District Judge.
Table of Contents
Background...................................................................... 518
I. Parties ............................................................... 518
*515
II. Proceedings ........................................................... 518
III. Total Return Swaps .................................................... 519
A. The Basics ........................................................ 519
B. The Purposes of TRSs............................................... 521
1. Short Parties .................................................. 521
2. Long Parties ................................................... 522
IV. The Events of Mid-2006 Until Late 2007 ................................ 523
A. TCI................................................................ 523
1. TCI Develops a Position in CSX ................................. 523
2. TCI's Leveraged Buyout Proposal................................. 524
3. January through March 2007 ..................................... 525
4. TCI Begins Preparing for a Proxy Fight ......................... 526
5. CSX Files Its 10-Q and Discloses that TCI Has an Economic
Position...................................................... 527
6. Proxy Fight Preparations continue .............................. 528
7. TCI Concentrates its Swaps in Deutsche Bank and Citigroup ...... 529
8. TCI Enters into Agreements with Two Director-Nominees........... 530
B. 3G ................................................................ 530
1. 3G Develops a Position in CSX .................................. 530
2. 3G Resumes Buying CSX Shares.................................... 531
3. 3G's Hart-Scott-Rodino Filing .................................. 531
4. 3G Sells Some Shares ........................................... 532
5. 3G Rebuilds its Investment in CSX .............................. 532
6. 3G Prepares for a Proxy Fight .................................. 532
C. The Relationship Between TCI and 3G................................ 532
1. 3G Learns of TCI's Interest in CSX ............................. 533
2. 3G and TCI Discuss Activity in CSX ............................. 533
3. 3G and TCI Meet on March 29..................................... 534
4. TCI and 3G Inquire of CSX Regarding a Shareholder Vote.......... 534
5. The August-September Pause ..................................... 534
6. TCI and 3G Ramp Up Again ....................................... 535
7. TCI and 3G Search for Director Nominees ........................ 535
V. The Proxy Contest ..................................................... 535
A. TCI and 3G Disclose the Formation of a Formal Group................ 535
B. The Group Files Its Notice of Intent to Nominate Directors ........ 536
C. CSX and TCI Attempt to Negotiate a Resolution...................... 536
D. CSX and The Group File Proxy Materials ............................ 537
1. CSX ............................................................ 537
2. The Group's Proxy Statement .................................... 537
VI. The Positions of the Parties .......................................... 538
Discussion ..................................................................... 538
I. Section 13(d) ......................................................... 538
A. Beneficial Ownership .............................................. 539
1. Rule 13d-3(a) .................................................. 541
a. Investment Power ............................................ 541
b. Voting Power ................................................ 543
c. Synthesis ................................................... 545
2. Rule 13d-3(b) .................................................. 548
B. Group Formation ................................................... 552
C. Alleged Schedule 13D Deficiencies ................................. 555
1. Legal Standard ................................................. 555
2. Beneficial Ownership ........................................... 555
3. Group Formation ................................................ 555
*516
4. Contracts, Arrangements, Understandings, or Relationships....... 556
5. Plans or Proposals.............................................. 556
II. Section 14(a).......................................................... 556
III. Section 20(a).......................................................... 558
IV. Notice of Proposed Director Nominee and Bylaw Amendment................ 559
V. Counterclaims.................................. ...................... 561
A. Section 14(a) Claim................................................ 561
1. Target Awards Under the Long Term Incentive Plan................ 561
2. The CSX Board's Compliance With CSX Insider Trading Policy ..... 562
3. CSX's Belief that TCI Seeks Effective Control................... 564
4. TCI's Proposal Regarding Capital Expenditures................... 564
5. The CSX-TCI Negotiations........................................ 565
6. CSX's Purposes in Bringing this Lawsuit......................... 566
B. Declaratory Relief Regarding By-Laws Amendment..................... 566
VI. Relief................................................................. 567
A. Success on the Merits.............................................. 568
B. Share Sterilization................................................ 568
1. Irreparable Harm................................................ 568
2. Deterrence...................................................... 571
C. Enjoining Further Disclosure Violations............................ 572
1. Probability of Future Violations................................ 572
2. Irreparable Injury.............................................. 573
Conclusion ..................................................................... 573
Appendix 1 ..................................................................... 574
Appendix 2 ..................................................................... 583
Some people deliberately go close to the line dividing legal from illegal if they see a sufficient opportunity for profit in doing so. A few cross that line and, if caught, seek to justify their actions on the basis of formalistic arguments even when it is apparent that they have defeated the purpose of the law.
This is such a case. The defendants two hedge funds that seek extraordinary gain, sometimes through "shareholder activism"amassed a large economic position in CSX Corporation ("CSX"), one of the nation's largest railroads. They did so for the purpose of causing CSX to behave in a manner that they hoped would lead to a rise in the value of their holdings. And there is nothing wrong with that. But they did so in close coordination with each other and without making the public disclosure required of 5 percent shareholders and groups by the Williams Act, a statute that was enacted to ensure that other shareholders are informed of such accumulations and arrangements. They now have launched a proxy fight that, if successful, would result in their having substantial influence and perhaps practical working control of CSX.
Defendants seek to defend their secret accumulation of interests in CSX by invoking what they assert is the letter of the law. Much of their position in CSX was in the form of total return equity swaps' ("TRSs"), a type of derivative that gave defendants substantially all of the indicia of stock ownership save the formal legal right to vote the shares. In consequence, *517 they argue, they did not beneficially own the shares referenced by the swaps and thus were not obliged to disclose sooner or more fully than they did. In a like vein, they contend that they did not reach a formal agreement to act together, and therefore did not become a "group" required to disclose its collaborative activities, until December 2007 despite the fact that they began acting in concert with respect to CSX far earlier. But these contentions are not sufficient to justify defendants' actions.
The question whether the holder of a cash-settled equity TRS benefic | {
"pile_set_name": "FreeLaw"
} |
740 N.W.2d 368 (2007)
16 Neb. App. 14
John C. MITCHELL, Appellee and Cross-Appellant,
v.
TEAM FINANCIAL, INC., et al., Appellants and Cross-Appellees.
No. A-05-1271.
Court of Appeals of Nebraska.
October 9, 2007.
*371 Alan E. Pedersen of McGill, Gotsdiner, Workman & Lepp, P.C., L.L.O., Omaha, for appellants.
Richard A. DeWitt and David J. Skalka of Croker, Huck, Kasher, DeWitt, Anderson & Gonderinger, L.L.C., Omaha, for appellee.
IRWIN, SIEVERS, and CASSEL, Judges.
IRWIN, Judge.
I. INTRODUCTION
Team Financial, Inc. (TFIN), Team Financial Acquisition Subsidiary, Inc. (TAC), and TeamBank, N.A. (collectively the Defendants), appeal a judgment of the district court for Douglas County granting summary judgment in favor of John C. Mitchell and denying partial summary judgment for the Defendants. On appeal, the Defendants assert the district court erred in finding that a provision under an agreement with Mitchell constituted a guaranty and in finding that the Defendants breached the terms of the agreement, releasing Mitchell as guarantor. For the reasons stated below, we affirm the trial court's order.
II. BACKGROUND
On October 29, 1999, TFIN and TAC, a bank holding company that is wholly owned by TFIN, entered into an "Acquisition Agreement and Plan of Merger" (the Agreement) with Fort Calhoun Investment Co. (FCIC), a bank holding company, and Mitchell, an FCIC stockholder who has general power of attorney to act for the remaining stockholders in FCIC. Under the terms of the Agreement, TAC and TFIN agreed to purchase 100 percent of the outstanding FCIC common stock for $3,600,000.
At the time of the merger, Fort Calhoun State Bank (the Bank) was a wholly owned subsidiary of FCIC, and the Bank held a reserve amount of $84,310 for loan loss. Prior to the closing of the Agreement, TAC conducted a review of the Bank's loans. It regarded one loan in particular, "Loan No. 635110," to be a "potential problem loan." Although 74 percent of loan No. 635110 was covered by an "SBA guarantee," the remaining 26 percent, or $175,534.13, was unsecured. As a result, the parties to the Agreement agreed that an additional reserve amount (ARA) of $170,000 would be set aside for loan loss in connection to loan No. 635110. This provision was incorporated into the Agreement under section 2.4, which read in pertinent part:
Based on a review of loans of [the Bank], TAC and FCIC have agreed that there should be established an additional reserve for loan loss [in the amount of $170,000] in connection with the uninsured portion of Loan No. 635110 with [that loan's] promissory note and related loan documents hereinafter referred to as "Loan No. 635110".
Such Additional Reserve Amount, [$170,000,] shall be deducted at Closing *372 from the Purchase Price (Cash Consideration) provided for in Section 2.2.
Section 2.4 under the Agreement further provided:
(ii) . . . [A]s long as Loan No. 635110 is not in default, [the Bank] shall distribute and pay to [Mitchell] interest on the [ARA].
. . . .
(v) If Loan No. 635110 should be in default, the [ARA] may be reduced by [the Bank] to the extent of any loss to [the Bank].
. . . .
(vii) Following default[, the] Bank or its successor shall not be obligated to pay any of the [ARA] to [Mitchell] until said loan is paid in full or written off by [the Bank].
(viii) [Mitchell] shall have the option to have the portion of [the loan's promissory] note not guaranteed by [the SBA guaranty] and the security thereon assigned to [Mitchell].
(ix) Upon payment in full of said loan or upon said note being written off, any remaining balance of the [ARA] shall be paid to [Mitchell].
(x) . . . [I]f the borrower . . . should make 24 consecutive timely monthly payments (not more than 30 days past due) of the regular principal and interest payments due on . . . Loan No. 635110 and if the borrower is not otherwise in default pursuant to the terms of the loan documents, then any remaining balance in the [ARA] shall be paid forthwith to [Mitchell] free and clear of any obligation for payment of Loan No. 635110. . . .
(xi) [The Bank] shall make quarterly reports to [Mitchell] from such time [as] Loan No. 635110 is in default until the [ARA] is exhausted.
The evidence indicates that prior to the closing of the Agreement, the Bank conducted a board of directors' meeting on February 29, 2000. Mitchell, who served as chairman of the board of directors, was present. At the meeting, a list of substandard loans was circulated, and a loan report indicated that the principal debtor for loan No. 635110 had not made his February payment, which had been due on February 13.
The parties closed the Agreement on March 24, 2000. Although the evidence does not indicate the exact date, at some point after the closing of the Agreement, the Bank merged into TeamBank, N.A., a wholly owned subsidiary of TFIN and TAC. Because the terms of the Agreement include successors to the Bank, we will continue to refer to the newly merged bank as "the Bank."
On March 7, 2001, the Bank sent notice to the principal debtor for loan No. 635110, informing him that he was in default on the loan and that the full sum was due on or before April 7.
On December 3, 2002, more than 24 months after the closing of the Agreement, Mitchell tendered a formal demand of payment to the Defendants for the ARA of $170,000. TFIN's attorney responded by letter, stating, "My general understanding is that [loan No. 635110] went into default some time following the Effective Time of the merger and thereafter the collection efforts have been continuing." TFIN later sent a followup letter stating that when the Agreement became effective on March 24, 2000, loan No. 635110 was already in default. An additional followup letter further indicated that because there was a principal balance of $175,534.13 due on the unsecured portion of the loan, the Defendants intended to withhold the ARA to satisfy the loss.
*373 On February 25, 2004, Mitchell filed a complaint alleging two causes of action: breach of contract and declaratory judgment seeking discharge of guarantors. In the first cause of action, Mitchell alleged that the Defendants breached section 2.4 of the Agreement because the Bank failed to make either interest payments from the ARA or quarterly reports indicating that loan No. 635110 was in default. Mitchell asserted that his rights under the Agreement were greatly impaired because he was unable to reduce or mitigate his exposure to loss as the guarantor of loan No. 635110. Under the second cause of action, Mitchell alleged that he should be discharged and excused from payment of any amount of the guaranty due to acts or omissions by the Defendants. We note here that Mitchell filed the complaint in his personal capacity. He asserted by affidavit that he is entitled to the full $170,000 because he distributed the cash consideration in the Agreement to the other FCIC shareholders, but did not reduce their payments by the $170,000 ARA. This position is not disputed by the Defendants.
Mitchell filed a motion for summary judgment on March 23, 2005. On May 6, the Defendants filed a motion for partial summary judgment, asserting that Mitchell's second cause of action seeking a declaratory judgment and discharge of guarantors should be dismissed. Following an evidentiary hearing, the trial court granted Mitchell's motion for summary judgment and dismissed the Defendants' motion on September 19.
The trial court looked to whether the $170,000 ARA under section 2.4 constituted an earn-out provision, an indemnity clause, or a guaranty. The court found that section 2.4 "d[id] not appear to be an earn-out provision" because "[n]othing in Section 2.4 addresses the overall earnings or value of [the Bank]; rather, Section 2.4 is entirely concerned with the specific performance of Loan No. 635110" (emphasis in original). The court further found that section 2.4 did not constitute an indemnity clause because "[n]othing in the provisions of Section 2.4 serves to protect TFIN or TAC from a liability they owe or may owe to a third party." The trial court found that section 2.4 operated as a guaranty. The court noted that the $170,000 ARA, supplied by Mitchell, would be reduced by the Bank only upon the principal debtor's failure to pay. The court further noted that upon satisfaction of the debt, any remaining balance in the ARA would be paid to Mitchell "free and clear of any obligation for payment of Loan No. 635110" (emphasis in original). The court found that the Defendants breached the Agreement by failing to make quarterly reports to Mitchell and concluded that Mitchell should be | {
"pile_set_name": "FreeLaw"
} |
84 F.3d 432
Simonv.Beasley
NO. 95-50561
United States Court of Appeals,Fifth Circuit.
Apr 05, 1996
Appeal From: W.D.Tex., No. A-95-CV-181
1
AFFIRMED.
| {
"pile_set_name": "FreeLaw"
} |
3 F.3d 273
CHEYENNE RIVER SIOUX TRIBE, Appellant/Cross-Appellee,v.STATE OF SOUTH DAKOTA; George S. Michelson, Governor,personally and in his official capacity; Mark W. Barnett,Attorney General, personally and in his official capacity;Grant Gormley, State Negotiator, personally and in hisofficial capacity; John Guhim, State Negotiator, personallyand in his official capacity, Appellees/Cross-Appellants.
Nos. 93-1224, 93-1521.
United States Court of Appeals,Eighth Circuit.
Submitted June 16, 1993.Decided Aug. 23, 1993.Rehearing and Suggestion forRehearing En Banc Denied Oct. 4, 1993.
Mark C. Van Norman, Eagle Butte, SD, argued (Steven C. Emery and Timothy W. Joranko, on the brief), for appellant/cross-appellee.
Lawrence E. Long, Chief Deputy Atty. Gen., Pierre, SD, argued (Richard J. Helsper, Brookings, SD, on the brief), for appellees/cross-appellants.
Before McMILLIAN, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and HANSEN, Circuit Judge.
McMILLIAN, Circuit Judge.
1
The Cheyenne River Sioux Tribe (tribe) appeals from an order entered in the United States District Court for the District of South Dakota1 which denied the tribe's motion for a preliminary injunction and summary judgment. 830 F.Supp. 523. The tribe filed this action in federal district court against the State of South Dakota and several state officials, in their official and personal capacities (collectively referred to as the state), pursuant to the Indian Gaming Regulatory Act, 25 U.S.C. Sec. 2701 et seq. (1988) (IGRA). The tribe sought to remedy the alleged failure of the state to negotiate in good faith regarding certain gaming activities to be conducted on and off the tribe's reservation lands and to reach an agreement on a tribal-state gaming compact. The tribe appeals from the order denying it preliminary injunctive relief and summary judgment, while the state cross-appeals the denial of its motion for summary judgment. We affirm the order of the district court for the reasons discussed below.
I.
2
On January 9, 1991, the tribe requested that the state negotiate a tribal-state compact to allow the tribe to operate gaming facilities on the reservation under the IGRA. The IGRA was enacted after a decision by the Supreme Court in 1987 which held that California could not enforce state and local gaming laws against the Indian tribes because California law only regulated and did not prohibit gaming. California v. Cabazon Band of Mission Indians, 480 U.S. 202, 221-22, 107 S.Ct. 1083, 1094-95, 94 L.Ed.2d 244 (1987). This case established that in states that permit gambling Indian tribes have the authority to license and operate gaming on Indian lands free from state regulation. Id. This opened the door to extensive gambling on Indian lands. In 1988, Congress responded to the decision by enacting the IGRA.
3
The IGRA divides gaming into three classes: (1) class I gaming includes social gaming for minimal prizes and traditional Indian gaming conducted at ceremonies or celebrations; (2) class II gaming includes bingo, lotto, pull-tabs, punch boards, tip jars, and non-banking2 card games, as well as banking card games operated on or before May 1, 1988; and (3) class III gaming includes casino-type gambling, parimutuel horse and dog racing, lotteries, and all other forms of gaming that are not class I or class II gaming. 25 U.S.C. Sec. 2703(6)-(8). Class I gaming on Indian lands is within the exclusive jurisdiction of the tribes and is not subject to the IGRA. Id. Sec. 2710(a)(1). Class II gaming on Indian lands is within the jurisdiction of the tribes, but is subject to the provisions of the IGRA, including oversight by the National Indian Gaming Commission within the Department of the Interior. Id. Sec. 2710(a)(2), (b)(1)(A), (B). Class III gaming activities are lawful on Indian lands only if authorized by a tribal ordinance or resolution, located in a state that permits such gaming for any purpose by any person, organization, or entity, and conducted in conformance with a tribal-state compact entered into by the tribe and state. Id. Sec. 2710(d)(1)(A)-(C).
4
The IGRA provides a "framework" for negotiation of tribal-state gaming compacts--the tribe requests the state to enter into negotiations; upon receiving such a request, the state "shall" negotiate with the tribe "in good faith" to enter such a compact. Id. Sec. 2710(d)(3)(A). Any such compact takes effect only after approval by the Secretary of the Department of the Interior. Id. Sec. 2710(d)(4). Tribal-state compacts can include provisions regarding the application of criminal and civil laws and regulations, allocation of criminal and civil jurisdiction between the tribe and state, taxation by the tribe, remedies for breach of contract, standards for the operation and maintenance of gaming facilities including licensing, and any other subjects directly related to the operation of gaming activities. Id. Sec. 2710(d)(3)(C).
5
The IGRA provides the United States district courts with jurisdiction over "any cause of action initiated by an Indian tribe arising from the failure of a State to enter into negotiations with the Indian tribe for the purpose of entering into a Tribal-State compact ... or to conduct such negotiations in good faith." Id. Sec. 2710(d)(7)(A)(i). Upon the introduction of evidence by the tribe that negotiations began more than 180 days before, no tribal-state compact was concluded, and the state did not respond to its request for negotiations or did not respond in good faith, the burden of proof shifts to the state to prove that it has negotiated in good faith. Id. Sec. 2710(d)(7)(B)(ii). If the district court finds that the state has failed to negotiate in good faith, the district court "shall order the State and Tribe to conclude such a compact within a 60-day period." Id. Sec. 2710(d)(7)(B)(iii). This is the injunctive relief sought by the tribe in the present case.
6
The IGRA further provides that if the tribe and state fail to conclude a compact after 60 days, the tribe and the state then each submits to a mediator appointed by the district court a proposed compact that represents their last best offer; the mediator then selects the one which best comports with the IGRA and presents it to the tribe and state. Id. Sec. 2710(d)(7)(B)(iv), (v). If the state consents to the proposed compact submitted by the mediator within 60 days, then the proposed compact becomes the tribal-state compact. Id. Sec. 2710(d)(7)(B)(vi). However, if the state does not consent within 60 days, then the mediator notifies the Secretary of the Department of the Interior, who, in consultation with the tribe, prescribes procedures consistent with the proposed compact selected by the mediator, the IGRA, and relevant state law, under which the tribe can then conduct class III gaming on Indian lands over which the tribe has jurisdiction. Id. Sec. 2710(d)(7)(B)(vii).
7
Since 1989, South Dakota has allowed state lotteries, video lottery, limited card games, slot machines, parimutuel horse and dog racing, and simulcasting. South Dakota has located within its boundaries nine federally recognized tribes.3 The first tribe to request negotiations toward a class III gaming compact under the IGRA was the Flandreau Santee Tribe in June 1989. Negotiations between the state and the Flandreau Santee Tribe broke down after about five months and the tribe sued South Dakota under the IGRA; however, the case was finally settled by the execution of a compact between the state and the tribe, approved by the Bureau of Indian Affairs (BIA) on July 26, 1990. Similar gaming compacts have been negotiated and executed between the state and five other tribes--the Sisseton-Wahpeton Sioux Tribe, March 1991; the Yankton Sioux Tribe, June 1991; the Lower Brule Sioux Tribe, September 1991; the Crow Creek Sioux Tribe, April 1992; and the Standing Rock Sioux Tribe, August 1992. The only other location in South Dakota to offer gaming similar to class III gaming under IGRA is the historic community of Deadwood.
8
When the Cheyenne River Sioux Tribe requested the state to negotiate a tribal-state compact, five "official" negotiations between tribal and state officials were held through August 1991. Tribal officials also met with the governor on three occasions before filing suit against the state. The tribe alleges the state refused to negotiate in good faith because the state adopted a "rigid" negotiation strategy by offering the tribe the so-called "Flandreau compact,"4 which the state used as a "model" in all subsequent tribal-state compact negotiations. If | {
"pile_set_name": "FreeLaw"
} |
224 U.S. 448 (1912)
MULLEN
v.
UNITED STATES.
No. 404.
Supreme Court of United States.
Argued October 12, 13, 1911.
Decided April 15, 1912.
APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT.
*449 Mr. J.C. Stone, Mr. Robert J. Boone and Mr. S.T. Bledsoe, with whom Mr. J.R. Cottingham was on the brief, for appellants.[1]
The Solicitor General and Mr. A.N. Frost and Mr. Harlow A. Leekley, Special Assistants to the Attorney General, for the United States.[1]
MR. JUSTICE HUGHES delivered the opinion of the court.
This suit was brought by the United States to cancel certain conveyances of allotted lands, made by Choctaw Indians in alleged violation of restrictions. The Circuit Court sustained a demurrer to the bill upon the grounds that the United States was not entitled to maintain a suit of this character; that there was a defect of parties, owing to the absence of the Indian grantors, and that the bill was multifarious. This judgment was reversed by the Circuit Court of Appeals, which directed the trial court to proceed with the cause in accordance with its opinion. United States v. Allen, and similar cases, 179 Fed. Rep. 13. An appeal to this court is taken by certain defendants under § 3 of the act of June 25, 1910, c. 408, 36 Stat. 837. The lands, conveyed to the appellants, are described as those which had been allotted to Choctaws of the full-blood, deceased, and the conveyances were made by their heirs (also Choctaws of the full-blood) prior to April 26, 1906.
As early as 1786 (January 3) a treaty was made with the representatives of the Choctaws by which it was acknowledged that these Indians were under the protection *450 of the United States and it was provided that for their "benefit and comfort" and for the "prevention of injuries and oppressions" the United States should have "the sole and exclusive right of regulating the trade with the Indians, and managing all their affairs in such manner as they think proper." 7 Stat. 21. By the treaty of 1820 (October 18) in order "to promote the civilization of the Choctaw Indians, by the establishment of schools amongst them; and to perpetuate them as a nation, by exchanging, for a small part of their land here, a country beyond the Mississippi River, where all, who live by hunting and will not work, may be collected and settled together," there was ceded to the Choctaws a tract west of the Mississippi situated between the Arkansas and Red rivers. 7 Stat. 210. In furtherance of this purpose, another treaty was made in 1830 (September 27) by which it was agreed that the United States should "cause to be conveyed to the Choctaw Nation a tract of country west of the Mississippi River, in fee simple to them and their descendants, to inure to them while they shall exist as a nation and live on it," and the Choctaws ceded to the United States all their lands east of the Mississippi and promised to remove beyond that river as soon as possible. 7 Stat. 333, 334. In 1837 (January 17), with the approval of the President and Senate of the United States, an agreement was made between the Choctaws and the Chickasaws that the latter should have the privilege of forming a district within the limits of the Choctaw country "to be held on the same terms that the Choctaws now hold it, except the right of disposing of it, which is held in common with the Choctaws and Chickasaws, to be called the Chickasaw district of the Choctaw Nation." 11 Stat. 573. Controversies having arisen between these tribes, a treaty was made in 1855 (June 22) with the representatives of both, defining boundaries and providing for the settlement of differences. This contained the stipulation: "And pursuant to an act *451 of Congress approved May 28, 1830, the United States do hereby forever secure and guarantee the lands embraced within the said limits, to the members of the Choctaw and Chickasaw tribes, their heirs and successors, to be held in common; so that each and every member of either tribe shall have an equal, undivided interest in the whole; Provided, however, no part thereof shall ever be sold without the consent of both tribes; and that said land shall revert to the United States if said Indians and their heirs become extinct, or abandon the same." 11 Stat. 612. After the Civil War, a new treaty was entered into reaffirming the obligations arising out of prior agreements and legislation. April 28, 1866, 14 Stat. 765, 774. While this treaty contemplated allotments in severalty and made provision to that end, effective action was not taken until the legislation of 1893, and subsequent years, relating to the Five Civilized Tribes, which embodied the policy of individual allotments and the dissolution of the tribal governments made necessary by the changed conditions in the Indian country. Acts of March 3, 1893, c. 209, 27 Stat. 645; June 10, 1896, c. 398, 29 Stat. 321, 339; June 7, 1897, c. 3, 30 Stat. 62, 64; June 28, 1898, c. 517, 30 Stat. 495.
In the case of the Choctaws and Chickasaws, as in that of the other tribes, the scheme of allotments embraced certain restrictions upon the right of alienation which Congress deemed necessary for the suitable protection of the allottees. By virtue of the relation of the United States to these Indians (Choctaw Nation v. United States, 119 U.S. 1, 28; United States v. Choctaw Nation and Chickasaw Nation, 179 U.S. 494, 532), and the obligations it has assumed, it is entitled to invoke the equity jurisdiction of its courts for the purpose of enforcing these restrictions. The Indian grantors, being represented by the Government, were not necessary parties, and in the interest of the convenient administration of justice it was competent to *452 embrace in one suit a class of transactions presenting the same question for determination. Heckman v. United States, ante, p. 413.
The question remains whether, in the execution of the conveyances to the appellants, the restrictions imposed by Congress have been violated.
The Dawes Commission, constituted by the act of 1893, entered into an agreement with the Choctaws and Chickasaws known as the Atoka agreement which was approved by Congress and incorporated in § 29 of the act of June 28, 1898. 30 Stat. 505. There was, however, a supplemental agreement, found in the act of July 1, 1902, 32 Stat. 641, c. 1362, which contains the restrictions in force at the time of the conveyances described in the bill.
This supplemental agreement provided that there should be allotted to each member of the Choctaw and Chickasaw tribes land equal in value to 320 acres of the average allottable land of these tribes; and to each Choctaw and Chickasaw freedman, land equal in value to forty acres. The scheme defined two classes of cases, (1) allotments made to members of the tribes, and to freedmen, living at the time of allotment, and (2) allotments made in the case of those whose names appeared upon the tribal rolls but who had died after the ratification of the agreement and before the actual allotment had been made.
With respect to allotments to living members, it was provided that the allottee should designate 160 acres of the allotted lands as a homestead, for which separate certificate and patent should issue. And the restrictions upon the right of alienation of the allotted lands are found in paragraphs 12, 13, 15 and 16 of the supplemental agreement, as follows:
"12. Each member of said tribes shall, at the time of the selection of his allotment, designate as a homestead out of said allotment land equal in value to one hundred *453 and sixty acres of the average allottable land of the Choctaw and Chickasaw nations, as nearly as may be, which shall be inalienable during the lifetime of the allottee, not exceeding twenty-one years from the date of certificate of allotment, and separate certificate and patent shall issue for said homestead.
"13. The allotment of each Choctaw and Chickasaw freedman shall be inalienable during the lifetime of the allottee, not exceeding twenty-one years from the date of certificate of allotment.
"15. Lands allotted to members and freedmen shall not be affected or encumbered by any deed, debt, or obligation of any character contracted prior to the time at which said land may be alienated under this Act, nor shall said lands be sold except as herein provided.
"16. All lands allotted to the members of said tribes, except such land as is set aside to each for a homestead as herein provided, shall be alienable after issuance of patent as follows: One-fourth in acreage in one year, one-fourth in acreage in three years, and the balance in five years; in each case from date of patent; Provided, That such land shall not be alienable by the allottee or his heirs at any time before the expiration of the Choctaw and Chickasaw tribal governments for less than its appraised value."
It will | {
"pile_set_name": "FreeLaw"
} |
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
Oct 24 2013, 5:23 am
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE:
MICHAEL L. SCHULTZ RONALD E. WELDY
TRAVIS W. MONTGOMERY Weldy & Associates
Parr, Richey, Obremskey, Frandsen & Indianapolis, Indiana
Patterson, LLP.
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CANNON IV, INC., )
)
Appellant, )
)
vs. ) No. 49A04-1304-PL-171
)
MATTHEW ANTISDEL, )
)
Appellee. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Timothy W. Oakes, Judge
Cause No. 49D13-1002-PL-4755
October 24, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge
Cannon IV appeals the judgment of the Marion Superior Court in favor of
Matthew Antisdel (“Antisdel”) in Antisdel’s breach of contract claim against Cannon IV
arising out of an Employment Agreement between the parties. On appeal, Cannon IV
argues that the trial court erred when it found that Cannon IV breached the Employment
Agreement by reducing Antisdel’s base salary.
We affirm.
Facts and Procedure
Beginning on January 12, 2002, Antisdel was employed as a service technician by
Cannon IV. Antisdel worked as an at-will employee for several years before entering
into an Employment Agreement (“Agreement”) with Cannon IV, effective on December
26, 2007. The Agreement, drafted by Cannon IV, stated that Antisdel would receive a
base pay of $1,574.89 per bi-monthly period, or $37,797.36 per year. The Agreement
provided for automatic extension for “successive one year periods (‘Renewal Terms’),
unless either party provides notice to the other party at least sixty [] days prior to the
beginning of any such Renewal Term of its election to terminate the Employment Period.”
Appellant’s App. p. 29.
Section 5(b) of the Agreement provided:
If the Employment Period is terminated by the Company without Cause or
by reason of Employee’[s] resignation with Good Reason, Employee shall
be entitled to receive his then-current Base Pay … for the period beginning
on the Termination Date and ending on the second anniversary of the
Commencement Date, or the expiration of the then current one year
Renewal Term.
Id. at 29.
2
Section 5(c) of the Agreement stated:
If the Employment Period is terminated by the Company for Cause, by
reason of Employee’[s] resignation (other than for Good Reason) …
Employee shall be entitled to receive his then-current Base Pay … only to
the extent that such amount or benefit has accrued through the Termination
Date.
Id. at 30.
Section 5(d) defined “Cause,” in part, as:
(i) the failure by Employee to perform such duties commensurate with
Employee’[s] status as a Service Technician as determined from time to
time by the Company; (ii) Employee’[s] material disregard of his duties or
failure to act, where such action would be in the ordinary course of
Employee’[s] duties[.]”
Id.
Section 5(e) of the Agreement defined “Good Reason,” in relevant part, as:
(i) the failure by the Company to pay Employee any amount otherwise due
hereunder; (ii) a reduction in Employee’[s] Base Pay[.]
Id.
In 2008, Antisdel did not give notice to Cannon IV of his intention to terminate the
Agreement, nor did Cannon IV give notice to Antisdel of its intention to terminate the
Agreement. On February 23, 2009, Antisdel met with one of his supervisors, who told
him that Cannon IV was “losing a good chunk of money” and had “thought about laying
off about six people, but decided that instead of doing that, they were going to cut
everyone’s pay by seven percent effective Monday, March 2, [2009].” Tr. p. 27. After
the meeting, Antisdel decided to review his copy of the Agreement.
3
The next day, February 24, 2009, Antisdel received a written reprimand from one
of his supervisors regarding his failure to properly use the “Eautomate” system1 and his
failure to “keep [his] scheduled calls up to date.” Appellant’s App. p. 39. The reprimand
did not indicate that Antisdel’s employment was in immediate jeopardy. Rather, it stated,
“[i]f an additional reprimand is needed, I will at that time discuss with you your future at
Cannon IV and if your continued employment is in the best interest of our clients and
Cannon IV.” Id.
On Friday, February 27, 2009, Antisdel met with an attorney regarding the pay cut
and its implications for the Agreement and, later that night, instructed his attorney to
issue a resignation letter to Cannon IV on Antisdel’s behalf. Cannon IV received
Antisdel’s resignation letter by an email transmitted by Antisdel’s attorney on March 3,
2009. The letter stated:
It is our understanding that effective March 2, 2009, the salary of Mr.
Antisdel was decreased by seven percent. It is also our understanding that
the compensation of Mr. Antisdel is governed by the Employment
Agreement entered into by Mr. Antisdel and [Cannon IV] on December 21,
2007.
***
Pursuant to Section 5(e), Mr. Antisdel hereby provides written notice that
he intends to resign effective March 18, 2009 for “Good Reason” as a result
of the reduction of his Base Pay per Section 5(e)(ii). Pursuant to Section
5(e), [Cannon IV] is hereby provided a 15-day opportunity to cure. If
[Cannon IV] intends to cure, then we would ask that notice of this intention
is provided to both Mr. Antisdel, personally, and this office via fax or e-
mail.
1
“Eautomate” is a system used by Cannon IV to keep track of the work activities of its service
technicians. Tr. p. 68. Antisdel testified that he and a Cannon IV supervisor had spoken several times in
the months leading up to his written reprimand about the company’s expectations regarding Antisdel’s
use of the “Eautomate” system. Tr. p. 70.
4
Ex. Vol., Plaintiff’s Ex. L (internal parentheticals omitted).2
The day after Antisdel’s attorney sent the resignation letter, March 4, 2009,
Antisdel met with a Cannon IV supervisor, who told him that Cannon IV had received
and accepted his letter of resignation. The supervisor also told Antisdel that Antisdel’s
last official day with Cannon IV would be March 18, 2009. The following day, March 5,
2009, James Jones, Cannon IV’s chief operating officer, met with Antisdel and told
Antisdel that Cannon IV would pay him through March 18, 2009 and that Antisdel would
only need to work through March 6, 2009. Jones also told Antisdel that his final wages
would not be subject to the seven percent pay reduction, since his resignation was close
in time to the date the pay cut was to take effect. Approximately half an hour after his
meeting with Antisdel, Jones transmitted via e-mail to Antisdel and Antisdel’s attorney
the same information he had verbally relayed to Antisdel.
Later that day, Antisdel’s attorney e-mailed to Jones a letter that stated:
Mr. Antisdel does not consider your March 5, 2009 e-mail a response to his
letter of March 3, 2009[]. As such, please specifically advise if Cannon IV
wants to cure or does not want to cure the reduction in the base pay of Mr.
Antisdel pursuant to Section 5(e) of the Employment Agreement.
Ex. Vol., Plaintiff’s Ex. M.
On March 6, 2009, Jones informed Antisdel that Cannon IV no longer employed
Antisdel and | {
"pile_set_name": "FreeLaw"
} |
210 U.S. 281 (1908)
ST. LOUIS, IRON MOUNTAIN AND SOUTHERN RAILWAY COMPANY
v.
TAYLOR, ADMINISTRATRIX.
No. 201.
Supreme Court of United States.
Argued April 14, 1908.
Decided May 18, 1908.
ERROR TO THE SUPREME COURT OF THE STATE OF ARKANSAS.
*282 Mr. Rush Taggart, with whom Mr. John F. Dillon was on the brief, for plaintiff in error.
Mr. Sam R. Chew, for defendant in error, submitted.
*284 MR. JUSTICE MOODY delivered the opinion of the court.
The defendant in error, as administratrix of George W. Taylor, brought, in the Circuit Court of the State of Arkansas, this action at law against the plaintiff in error, a corporation owning and operating a railroad. Damages were sought, for the benefit of Taylor's widow and next of kin, on account of his injury and death in the course of his employment as brakeman in the service of the railroad. It was alleged in the complaint that Taylor, while attempting, in the discharge of his duty, to couple two cars was caught between them and killed. The right to recover for the death was based solely on the failure of the defendant to equip the two cars which were to be coupled with such draw bars as were required by the act of Congress known as the Safety Appliance Law. Act of March 2, 1893, c. 196, 27 Stat. 531. The defendant's answer denied that the cars were improperly equipped with draw bars, and alleged that Taylor's death was the result of his own negligence. At a trial before a jury upon the issues made by the *285 pleadings there was a verdict for the plaintiff, which was affirmed in a majority opinion by the Supreme Court of the State. The judgment of that court is brought here for reexamination by writ of error. The writ sets forth many assignments of error, but of them four only were relied upon in argument here, and they alone need be stated and considered. It is not, and cannot be, disputed that the questions raised by the errors assigned were seasonably and properly made in the court below, so as to give this court jurisdiction to consider them; so no time need be spent on that. But the defendant in error insists that the questions themselves, though properly here in form, are not Federal questions; that is to say, not questions which we by law are authorized to consider on a writ of error to a state court. For that reason it is contended that the writ should be dismissed. That contention we will consider with each question as it is discussed.
The accident by which the plaintiff's intestate lost his life occurred in the Indian Territory, where, contrary to the doctrine of the common law, a right of action for death exists. The cause of action arose under the laws of the Territory, and was enforced in the courts of Arkansas. The plaintiff in error contends that of such a cause, triable as it was in the courts of the Territory created by Congress, the courts of Arkansas have no jurisdiction. This contention does not present a Federal question. Each State may, subject to the restrictions of the Federal Constitution, determine the limits of the jurisdiction of its courts, the character of the controversies which shall be heard in them, and specifically how far it will, having jurisdiction of the parties, entertain in its courts transitory actions where the cause of action has arisen outside its borders. Chambers v. Baltimore & Ohio R.R., 207 U.S. 142. We have, therefore, no authority to review the decision of the state court, so far as it holds that there was jurisdiction to hear and determine this case. On that question the decision of that court is final.
The next question presented requires an examination of the *286 act of Congress, upon which the plaintiff below rested her right to recover. Section 5 of the Safety Appliance Law is as follows, 27 Stat. 531:
"Within ninety days from the passage of this act the American Railway Association is authorized hereby to designate to the Interstate Commerce Commission the standard height of draw bars for freight cars, measured perpendicular from the level of the tops of the rails to the centers of the draw bars, for each of the several gauges of railroads in use in the United States, and shall fix a maximum variation from such standard height to be allowed between the draw bars of empty and loaded cars. Upon their determination being certified to the Interstate Commerce Commission, said Commission shall at once give notice of the standard fixed upon to all common carriers, owners or lessees engaged in interstate commerce in the United States by such means as the Commission may deem proper. But should said association fail to determine a standard as above provided, it shall be the duty of the Interstate Commerce Commission to do so before July first, eighteen hundred and ninety-four, and immediately to give notice thereof as aforesaid. And after July first, eighteen hundred and ninety-five, no cars, either loaded or unloaded, shall be used in interstate traffic which do not comply with the standard above provided for."
The action taken in compliance with this law by the American Railway Association, which was duly certified to and promulgated by the Interstate Commerce Commission, was contained in the following resolution, June 6, 1893 Int. Com. Comm. Rep. for 1893, pp. 74, 263:
"Resolved, that the standard height of draw bars for freight cars, measured perpendicular from the level of the tops of the rails to the centers of the draw bars, for standard gauge railroads in the United States, shall be thirty-four and one-half inches, and the maximum variation from such standard heights to be allowed between the draw bars of empty and loaded cars shall be three inches.
*287 "Resolved, that the standard height of draw bars for freight cars, measured perpendicular from the level of the tops of the rails to the centers of the draw bars, for the narrow gauge railroads in the United States, shall be twenty-six inches, and the maximum variation from such standard height to be allowed between the draw bars of empty and loaded cars shall be three inches."
It is contended that there is here an unconstitutional delegation of legislative power to the Railway Association and to the Interstate Commerce Commission. This is clearly a Federal question. Briefly stated, the statute enacted that after a date named only cars with draw bars of uniform height should be used in interstate commerce, and that the standard should be fixed by the Association and declared by the Commission. Nothing need be said upon this question except that it was settled adversely to the contention of the plaintiff in error in Buttfield v. Stranahan, 192 U.S. 470, a case which in principle is completely in point. And see Union Bridge Co. v. United States, 204 U.S. 364, where the cases were reviewed.
Before proceeding with the consideration of the third assignment of error, which arises out of the charge, it will be necessary to set forth the course of the trial and the state of the evidence when the cause came to be submitted to the jury. This is done, not for the purpose of retrying questions of fact, which we may not do, but first to see whether the question raised was of a Federal nature, and second, to see whether error was committed in the decision of it. Taylor was a brakeman on a freight train, which had stopped at a station for the purpose of leaving there two cars which were in the middle of the train. When this was done the train was left in two parts, the engine and several cars attached making one section and the caboose with several cars attached making the other. The caboose and its cars remained stationary, and the cars attached to the engine were "kicked" back to make the coupling. One of the cars to be coupled had an automatic coupler and the other an old-fashioned link and pin coupler. That *288 part of the law which requires automatic couplers on all cars was not then in force. In attempting to make the coupling Taylor went between the cars and was killed. The cars were "kicked" with such force that the impact considerably injured those immediately in contact and derailed one of them. One of the cars to be coupled (that with the automatic coupler) was fully and the other lightly loaded. The testimony on both sides tended to show that there was some difference in the height of the draw bars of these two cars, as they rested on the tracks in their loaded condition, but there was no testimony as to the height of the draw bars if the cars were unloaded, except that, as originally made some years before, they were both of standard height. But as to the extent of the difference in the height of the draw bars, as the cars were being used at the time of the accident, there was a conflict in the testimony. One witness called by the plaintiff testified that the automatic coupler appeared to be about four inches lower than the link and pin coupler. Although another, called also by the plaintiff, testified that the automatic coupler was one to three inches higher than the other. That the automatic coupler was the lower is shown by the marks left upon it by the contact, which indicated that it had been overriden by the link and pin coupler, and was testified to by a witness who made up the train at its starting point. Two witnesses called by the defendant testified to actual measurements made soon after the accident, which showed that the center of the draw bar of the automatic coupler was thirty-two and one-half inches from the top of the rail, and that of the link and pin coupler thirty-three and one-half inches from the top of the rail. The evidence therefore, in its aspect most favorable to the plaintiff, tended to show that the fully loaded car was | {
"pile_set_name": "FreeLaw"
} |
12 B.R. 99 (1981)
In re CENTENNIAL INDUSTRIES, INC., Debtor.
CENTENNIAL INDUSTRIES, INC., Plaintiff,
v.
NCR CORPORATION, Defendant.
Bankruptcy No. 78 B 1658.
United States Bankruptcy Court, S.D. New York.
June 24, 1981.
*100 Paul, Weiss, Rifkind, Wharton & Garrison, New York City, for debtor.
Booth, Lipton & Lipton, New York City, for defendant.
MEMORANDUM & ORDER
JOHN J. GALGAY, Bankruptcy Judge.
Defendant's motion to dismiss the complaint asks this Court to determine whether an adversary proceeding seeking recovery of preferential payments and improper transfers of debtor's property can be brought after a plan of arrangement in a Chapter XI proceeding is confirmed. After review of the argument presented on July 30, 1980, the papers submitted by counsel, the statutes, and the interpretive case law, this Court denies defendant's motion to dismiss.
Centennial Industries, Inc., (Centennial) filed a petition under Chapter XI of the Bankruptcy Act on September 13, 1978. Centennial listed NCR's claim as $910,501.83 on its schedule of claims, and defendant filed a proof of claim for $1,024,850.01.
On March 13, 1980 this Court entered an order confirming a plan of arrangement providing for a 20% payment to unsecured creditors this year, and an additional 15% payable over the next five years at 3% per annum, and for objections to claims to be made within 60 days.
On April 24, 1980 plaintiff filed a complaint objecting to defendant's claim, seeking recovery of preferential payments under 57(g) of the Act, and recovery of commissions belonging to plaintiff which it claimed were wrongfully appropriated by defendant and are voidable transfers under section 70(a)(6), and recoverable under section 57(g). Section 57(g) states,
"The claims of creditors who have received or acquired preferences, liens, conveyances, transfers, assignments, or encumbrances, void or voidable under this Act, shall not be allowed unless such creditors shall surrender such preferences, *101 liens, conveyances, transfers, assignments or encumbrances."
NCR raises three arguments in its motion to dismiss. NCR contends that the Bankruptcy Court lacks jurisdiction, recovery of preferential transfer will give Centennial a windfall, and that plaintiff lacks standing to bring this adversary proceeding. For the reasons to be stated below, this Court finds that none of these objections bar the bringing of this adversary proceeding to recover a preference post-confirmation.
Defendant contends that after confirmation of a plan this Court does not retain jurisdiction to determine an adversary proceeding to recover preferential payments. Defendant states that absent specific retention of jurisdiction, this Court cannot adjudicate an adversary proceeding such as this Section 367(4) of the Act specifically provides that on "confirmation of an arrangement . . . except as otherwise provided in sections 369 and 370 of this Act, the case shall be dismissed." Neither section 369 or section 370 deals with adversary proceedings to recover preferential transfers. While section 368 allows the court to retain jurisdiction, if so provided in the arrangement, NCR declares that no jurisdiction was retained to recover preferential transfers.
It is the opinion of this Court that jurisdiction was specifically retained in the plan to determine this adversary proceeding. The order confirming the plan allowed objections to claims to be made within sixty days. From this the court finds that it retained jurisdiction to hear all claims objecting to the allowability of a claim. Defendant argues that there is a distinction between a mere "objection" to claim and an adversary proceeding seeking recovery of alleged preferential transfers. This court finds it a distinction without a difference.
The Supreme Court in Katchen v. Landy, 382 U.S. 323, 330, 86 S.Ct. 467, 473, 15 L.Ed.2d 391 (1965) when considering whether an action under section 57(g) is subject to summary adjudication by a bankruptcy court, the Supreme Court stated, "The objection under 57g is, like other objections, part and parcel of the allowance process and is subject to summary adjudication." This court holds that a retention of jurisdiction to hear objections to claims is a retention of jurisdiction to hear all controversies affecting the allowance process including a 57(g) objection.
Furthermore, a close reading of the objection to claims clause, in the order confirming the plan, seems to indicate a retention of powers broader than those merely to hear objections to claims. The clause states, "Objection to claims may be made . . . and upon the failure to do so, any objection to the allowance of any claim shall be deemed waived." The clause doesn't state that "any objection to claim shall be deemed waived" but it states "any objection to the allowance of any claim" meaning that the court retains specific jurisdiction to hear any objection affecting the allowance of the claim, and 57(g) affects the allowance of the claim by requiring the creditor to repay the preference before his claim will be allowed.
Defendant's citation to In re Oceana International, Inc., 376 F.Supp. 956 (S.D.N.Y. 1974) and to Law Research Service, Inc., v. Hemba, 384 F.Supp. 729 (S.D.N.Y.1974) where the court found no jurisdiction after confirmation, does not advance its position. In those cases the court found that the plan did not provide for retention of jurisdiction, while in this case the confirmation did retain specific jurisdiction for objections under 57(g). This case is more in line with Texas Consumer Finance Corp. v. First National City Bank, 365 F.Supp. 427 (S.D.N.Y. 1973) in which post confirmation jurisdiction to recover a preferential payment was upheld, because the plan provided for retention of jurisdiction. As the court stated, "If the debtor-in-possession has the powers of a trustee and if jurisdiction is specifically retained in the plan, the order of confirmation should not be the occasion for a windfall to the preferential transferee." Id. at 432.
NCR next argues that the purpose of section 57(g) of the Act is to increase the amount of recovery of unsecured creditors *102 by the amount recovered from the preference. And since in this case the amount to be recovered by the unsecured creditors is fixed by the plan and will not increase if debtor recovers the preference, then 57(g) is not applicable.
This Court does not agree with such an interpretation. This Court holds that as long as the unsecured creditors receive some benefit from the recovery of the preference, even if it is not an increase in the amount the creditors will receive, 57(g) will apply. In this case any recovery by Centennial will increase the likelihood of the creditors receiving their future payments. Therefore, a recovery under 57(g) is permitted. Defendant relies on Whiteford Plastics Co., v. Chase National Bank, 179 F.2d 582, 584 (2d Cir. 1950) where Judge Hand wrote, "The debtor never contributed or offered to contribute this value to the plan and now seeks to obtain it purely for its own benefit. This we think it cannot do." Defendant fails to recognize the difference between the Whiteford case and this case. In the very next paragraph, Judge Hand articulated the key factor, for in that case, "the creditors have received cash or stock for their claims, and there is no reason to safeguard their rights further." In Centennial's case the plan calls for payments over five years and this Court therefore has reason to protect further the rights of the creditors to insure that there are sufficient assets for the debtor to meet his obligations. While it is true that the Court had found the plan feasible when it was confirmed, a finding of feasibility is far short of a guarantee of the consummation of the plan. The recovery of this preference will be additional security for the fulfillment of the debtor's plan.
Likewise NCR's reliance on In re Oceana International, Inc., 376 F.Supp. 956 (S.D.N.Y.1974) is ill founded, since that case also called for a single 10% distribution to creditors and there was no reason for the court to further protect creditors' interests. As previously stated, this case calls for payments over five years, so this Court has reason to further protect the interests of the creditors, and to allow recovery of the preference.
This Court also finds persuasive the reasoning in City National Bank & Trust Co. v. Oliver, 230 F.2d 686 (10th Cir. 1956). In that case, similar to the instant case, the debtor was making payments under his plan over a period of time. The Court found that it would be to the benefit of the creditors to allow the debtor to retain possession of a television set, since in the event that the debtor defaulted on his plan, the creditors would benefit by having the television part of the assets of the debtor. Here too, the recovery of the preferential transfer will benefit the unsecured creditors if the debtor should default on his plan since the amount of available assets would be increased.
Finally, NCR contends that a debtor does not have standing to assert the right to set aside a preferential transfer after confirmation. It is undisputed that a debtor-in-possession has the power to set aside voidable transfers. See In re Martin Custom Made Tires Corp., 108 F.2d 172 (2d Cir. 1939). However, defendant claims that the powers of debtor-in-possession cease after the plan is confirmed.
Defendant cites no cases which specifically states that the powers of the debtor-in-possession terminate after confirmation. The court in Martin, Id | {
"pile_set_name": "FreeLaw"
} |
[Cite as Hosang v. Hosang, 2019-Ohio-54.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
HURON COUNTY
Jeffrey A. Hosang Court of Appeals No. H-17-013
Appellant/Cross-Appellee Trial Court No. DR 2014 0163
v.
Constance A. Hosang, et al. DECISION AND JUDGMENT
Appellee/Cross-Appellant Decided: January 11, 2019
*****
Thomas M. Dusza, for appellant/cross-appellee.
John D. Allton, for appellee/cross-appellant.
*****
PIETRYKOWSKI, J.
{¶ 1} This appeal and cross-appeal is from the Huron County Court of Common
Pleas’ August 29, 2017 judgment entry denying the objections of plaintiff-
appellant/cross-appellee, Jeffrey A. Hosang, and defendant-appellee/cross-appellant,
Constance A. Hosang1. For the reasons that follow, we affirm.
1
On July 3, 2018, we stayed this matter pending appellant’s bankruptcy proceedings.
Those proceedings are now complete and the bankruptcy stay has been lifted.
{¶ 2} The parties were married in February 1995, and had four surviving children
together at the time of the divorce. Throughout their marriage, appellant owned and
operated TJ Hosang Construction Company, a home construction and remodeling
business. Appellee worked for the company as an office manager and bookkeeper. The
parties also owned several parcels of real property, including the marital residence and
adjoining parcels which were secured by various mortgages.
{¶ 3} This case commenced on March 5, 2014, with appellant’s complaint for
divorce with minor children.2 Appellee filed a counterclaim for divorce on March 31,
2014.
{¶ 4} The matter ultimately proceeded to a hearing on the division of the marital
property. The parties presented expert testimony regarding the valuation of the real
property. Appellant’s expert, Jack Erne, testified that he is a certified appraiser. Erne
testified regarding the pre-site and onsite visit work entailed in valuing residential and
vacant properties. Erne also discussed the need to assess comparables based on the size,
location, and use of the properties. Erne then testified regarding the documents he
prepared in assigning values to the three categories of properties. First, as to the
residential property, Erne valued the home and land at $189,000. Next, as to the five
farmland parcels, Erne noted that he valued the property for farm-use only based on the
high costs required to convert the land for residential use. Erne valued the property at
2
Issues regarding custody, support, and visitation of the minor children (three at the time
of the divorce) were settled between the parties and is not before the court on appeal.
2.
$3,500 per acre or $42,200 collectively. Finally, Erne valued the properties containing
horse stables at $98,000 (the parcel with the stables at $94,000, and two adjoining parcels
at $2,000 each).
{¶ 5} Appellee presented the valuation testimony of real estate broker David
Amarante. Amarante testified that he helps clients buy and sell real estate and does
property valuations or broker price opinions (“BPO”). Amarante explained that a BPO is
not a “full-blown” appraisal but does involve touring the properties, analyzing
MLS/auditor data, and using the comparable sales method. As to the marital home,
Amarante assigned it a value of $180,000. Amarante further stated that he valued the 10-
acre parcel as one piece of property instead of five parcels. He placed the value at
$100,000 and indicated that a few houses could be built on it. Amarante agreed that there
was a slight slope down from the road but stated that the rest of the property was “pretty
flat.” Finally, Amarante valued the horse stables parcel and two adjacent parcels as one
piece of property and assigned it the value of $150,000.
{¶ 6} Appellee testified that appellant lost approximately $200,000 gambling over
the course of their marriage. Appellee stated that both lines of credit were incurred due
to appellant’s gambling debts. Appellant disputed this assertion and testified that the
$80,000 debt was due to a spec house that they lost money on which coincided with the
economic decline in 2006-2007. He stated that they lost approximately $60,000 on the
deal. Appellant did admit that when he gambled it ranged from a couple hundred dollars
to $1,000 on a given weekend. Appellant stated that the family was aware of the
3.
gambling but that he hid the extent of his losses from appellee. Appellant also
acknowledged that in a letter to appellee he expressed that his losing cost them dearly.
Appellant stated that he stopped gambling on his own six to eight years prior and denied
having an addiction.
{¶ 7} Regarding the 2012 Cadillac SRX, appellant testified that he purchased the
vehicle in the summer of 2014, and was the responsible party. On the date of the hearing
the vehicle was valued at $23,379 and had a loan balance of $20,000. Appellant stated
that it was purchased after the temporary orders were received in the case.
{¶ 8} The magistrate issued his decision on February 24, 2017. Disputed in this
appeal, as to the parties’ real property the magistrate found that the marital residence had
a value of $189,000 and that the property with the horse stables had a value of $96,000.
The magistrate then noted that the parcels were subject to a mortgage and a note with a
balance of $213,610. The court then determined that $71,390 was available for equitable
distribution. As to the five parcels of property located across the street from the marital
home, the magistrate valued the parcels at $42,200 but that because the parcels are
security for a loan and a line of credit with a balance of $106,840, the value for
distribution was zero.
{¶ 9} The magistrate divided the five motor vehicles owed by the parties.
Specifically, as to the Cadillac SRX, the magistrate found that the vehicle was marital
property and that $3,379 was available for equitable distribution. Finally, the magistrate
determined that the unpaid debt of T.J. Hosang Construction, Inc., $27,212.10 on the line
4.
of credit, was not proven by appellant to be incurred by actual business expenses “rather
than, say, a cover for substantial gambling losses, as attested to by Defendant/Wife.” The
magistrate then indicated that the value of the business would not be reduced by the
balance due and owing. The magistrate ultimately found that appellant owed appellee the
sum of $52,384.72 to equalize the property distribution.
{¶ 10} On June 15, 2017, appellant filed three objections to the magistrate’s
decision. First, appellant argued that the magistrate failed to factor the “negative equity”
of the real estate; specifically, the fact that the value of the ten acres of farmland,
$42,200, was substantially less than the $106,840 owed on the mortgage. Appellant also
disputed the magistrate’s classification of the Cadillac as marital property and the
magistrate’s failure to assign all the marital debt to the parties based upon his belief that
appellant’s gambling debt was responsible for a significant portion of the parties’ debt.
{¶ 11} On June 26, 2017, appellee filed an objection to the valuation of the 10
acres of farmland. Appellee argued that appellant’s expert’s testimony was incompetent
because he valued the ten-acre parcel as five distinct parcels though two of the parcels
were landlocked, thereby reducing its overall value.
{¶ 12} After an independent review of the record, the trial court overruled both
parties’ objections and adopted the magistrate’s decision. This appeal followed.
Appellant/cross-appellee raises the following three assignments of error:
5.
I. The trial court erred in the property division of the parties by not
factoring in the negative equity in the marital real estate owned by the
parties.
II. The trial court erred in the property division of the parties by not
accounting for all marital debt of the parties without any specific finding of
financial misconduct.
III. The trial court erred in the property division of the parties by
including into the division of marital assets the 2012 Cadillac vehicle.
{¶ 13} Appellee/cross-appellant’s assignment of error provides:
The trial court erred in the valuation it placed on the 10 acre parcel
referred to in appellant’s brief as “farmland.” | {
"pile_set_name": "FreeLaw"
} |
896 P.2d 214 (1995)
The ESTATE of Chester P. LAMPERT, Through its Personal Representative, Jan THURSTON, Appellant and, Cross-Appellee,
v.
The ESTATE OF Helen Thelma LAMPERT, Through its Personal Representative, Grace STAUFFER, Appellee and Cross-Appellant.
Nos. S-6233, S-6234.
Supreme Court of Alaska.
May 26, 1995.
*215 Mark E. Ashburn, Ashburn & Mason, Anchorage, for appellant and cross-appellee.
R.N. Sutliff, Anchorage, for appellee and cross-appellant Estate of Helen Thelma Lampert, through its Personal Representative, Grace Stauffer.
Thomas P. Owens III, Burr, Pease & Kurtz, Anchorage, for appellee Grace E. Stauffer, Individually.
Before MOORE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.
OPINION
MOORE, Chief Justice.
I. INTRODUCTION
This case arises from the probate of the estates of Chester and Helen Lampert, husband and wife. The main issues in dispute are the validity of a postnuptial property agreement and the ownership rights to a condominium located in Hawaii. The lower court entered summary judgment in favor of the Estate of Helen Lampert, and after trial, awarded Helen's estate damages for lost use of property. Each estate appeals. We affirm the decision in part and reverse in part.
II. FACTS AND PROCEEDINGS
Chester and Helen Lampert were in their late fifties when they married in 1965. Each had adult children by prior marriages.
Five years into their marriage, with the assistance of an attorney, the Lamperts entered into a postnuptial property agreement. Under the agreement, entitled the "Joint Submarital Agreement Waiving Rights to Receive One-Third of Net Estate of Spouse," the couple waived their statutory rights to take a one-third elective share of the other's estate, released all claims for dower, curtesy, or similar statutory rights of the surviving spouse, and pledged not to contest the other's will. Chester promised to deed their Anchorage home (the "Karluk residence"), together with its furniture and fixtures, to Helen, and Helen promised to provide Chester with a life estate in this property through her will. Chester further promised to arrange for Helen to receive $2,000 per month for the period which she might outlive him.
Pursuant to this agreement, Chester immediately executed a warranty deed conveying the Karluk residence, its fixtures, and furniture to Helen. Chester also executed a will, which established a trust to provide Helen with the agreed upon cash payments. *216 Helen executed her own will, in which she granted Chester a life estate in the Karluk property.
Several years later, in 1980, the Lamperts again met with an attorney to discuss estate planning. The two were advised that Chester would achieve significant estate tax savings if he were to commence an annual gift program during his lifetime. The discussion focused upon a condominium which Helen and Chester owned in a tenancy by the entirety with full rights of survivorship. The meeting resulted in Chester executing three quitclaim deeds to convey "his right, title, and interest" in the Hawaii condo to Helen's daughter, Grace Stauffer.[1] Helen signed none of these three deeds, and Stauffer paid nothing for the property.
During this period, on two occasions Helen and Chester formally renewed their commitment to the terms of the "Joint Submarital Agreement." In December 1980, the Lamperts amended the agreement to increase the monthly payments due Helen to $5,000. The remaining terms were expressly "reconfirm[ed]." Again, in 1981 the Lamperts revised their wills. The provisions fully conformed with the couple's estate plan as embodied in the amended postnuptial agreement. Helen additionally certified at the conclusion of Chester's will that she "hereby reaffirm[ed]" the provisions of the couple's marital estate agreement.
Despite these assurances, in September 1988, Helen secretly visited an attorney and modified her estate plan.[2] Helen executed a codicil to her will which stated that with regards to the Lamperts' postnuptial property agreement, "my legal rights were never adequately explained to me at the time of the execution of those documents, and ... the provisions applicable to me under my spouse's Will and Trust do not meet his obligations to me." The codicil deleted Chester's life estate in the Karluk furniture, and an amended trust revoked his life estate in the residence itself. Helen never told Chester about these events. Less than three months later, Helen died.
Grace Stauffer was appointed the personal representative of the Estate of Helen Lampert. After Helen's death, the estate formally notified Chester that his life estate in the Karluk residence, fixtures, and furniture had been revoked. Chester did not vacate the property, however, and lived in the home until his death which followed several months later. Meanwhile, a title report prepared for the Hawaii property after Helen's death indicated that despite the three quitclaim deeds to Stauffer, Chester might in fact be the condo's true owner. Despite this revelation, Stauffer retained actual control over the Hawaii property.
A few months before his death in August 1989, Chester brought suit against the Estate of Helen Lampert. Rather than seeking to enforce the couple's postnuptial agreement, Chester alleged that Helen's secret alteration of her estate plan entitled him to rescind their contract. Chester accordingly sought restitution of his consideration, title in fee simple to the Karluk residence, and made an election for one-third of Helen's estate. In a separate count, Chester sought possession of the Hawaii condo, under a theory that title passed to him as survivor and that previous attempts to unilaterally sever his interest in the property were legally ineffective and void.
Shortly after Chester's death, the Estate of Helen Lampert filed and served Chester's attorney with a "Statement of Death of Party." Although Chester's estate failed to move the court to substitute a party within ninety days of the notice as required by Alaska Civil Rule 25(a), the court ultimately ruled that the delay constituted "excusable neglect."
Following these events, the Estate of Helen Lampert filed a claim against the Estate *217 of Chester Lampert, based upon the refusal of Chester's heirs to vacate the Karluk residence. The claim sought possession of the Karluk residence and damages for lost use of the property for the period following Chester's death. Stauffer also initiated an individual claim against the Estate of Chester Lampert, requesting that title to the Hawaii condo be quieted in her. Finally, Chester's estate counterclaimed against Stauffer, demanding compensation for lost rental income based upon lost use of the Hawaii property. The entire matter was consolidated, and each estate moved for summary judgment.
In addressing the continued effect of the Lamperts' postnuptial agreement, the lower court commented on the "extreme nature of rescission" and noted that the remedy is proper only in cases involving a material breach of contract. The court was unconvinced that Helen's actions amounted to a material breach since "the breach did not defeat the object of the parties." The court reasoned that because Chester was not ousted from the Karluk residence following Helen's death, Chester, in effect, received the promised life estate. The court additionally stated that based upon the circumstances, Chester received all of the other benefits that he bargained for under the contract.[3] Given the conclusion that Helen's actions did not amount to a total failure of consideration, the court refused to rescind the twenty-year-old warranty deed executed by Chester or allow him to elect a one-third spousal share of Helen's estate.
The court went on to address the ownership of the Hawaii property. The court first recognized that under governing Hawaii law, a spouse may not unilaterally convey an interest in property that is held as tenants by the entirety.[4] In response to Stauffer's initial argument that title should nevertheless be quieted in her, the court refused to find that Chester acted as Helen's agent in the gift transfer to Stauffer. The court explained that the agency exception permitting a conveyance by one spouse in a tenancy by the entirety has not been formally recognized in Hawaii. The court was persuaded by Stauffer's alternative argument, however, that under both Alaska and Hawaii law, the equitable doctrine of quasi-estoppel bars Chester and his heirs from arguing that the earlier transfer was ineffective. Considering the totality of the circumstances, the court concluded that the Estate of Chester Lampert was estopped from denying Stauffer's ownership of the Hawaii property.
The parties conducted a bench trial on the remaining question of damages. The court awarded the Estate of Helen Lampert $19,615.59 for lost use of the Karluk residence.
An appeal and cross-appeal on behalf of each estate followed.
III. DISCUSSION
A. Failure to Timely Move for Substitution
Before considering the merits, we briefly address a claim of procedural error advanced by the Estate of Helen Lampert. Helen's estate argues that Chester's claims should have been dismissed with prejudice after his death when his estate failed to timely move for substitution of parties. Helen's estate cites Alaska Civil Rule 25(a), which provides that once formal notice is filed that a party to litigation has died, a motion to substitute parties must be made within ninety days or "the action shall be dismissed as to the deceased party." In the present case, after Helen's estate filed the "Statement of Death | {
"pile_set_name": "FreeLaw"
} |
267 F.2d 785
GARLAND COAL & MINING COMPANY, a corporation; CanadianMining Company, a corporation; Sallisaw Stripping Company, acorporation; and Ernie Young, an individual, d/b/a CaryConstruction Company, Appellants,v.Clifton FEW, Appellee.
No. 6026.
United States Court of Appeals Tenth Circuit.
May 27, 1959.Rehearing Denied June 27, 1959.
Anna B. Otter, Oklahoma City, Okl., and Kelly Brown, Muskogee, Okl. (John R. Couch of Pierce, Mock & Duncan, Oklahoma City, Okl., with them on the brief), for appellants.
Woodrow H. McConnell and Ranel Hanson, Oklahoma City, Okl., for appellee.
Before BRATTON, Chief Judge, PICKETT, Circuit Judge, and KNOUS, District Judge.
PICKETT, Circuit Judge.
1
This action was brought by the owner of a 110 acre farm in Haskell County, Oklahoma, against three corporations and one individual who were jointly engaged in strip coal mining operations on lands adjacent to the plaintiff's property. The plaintiff alleged that the defendants' activities created a continuing nuisance and also caused damages from trespass. Damages were sought for injury to plaintiff's real property, improvements and crops; for loss occasioned when the mining activities necessitated an otherwise unplanned sale of livestock; for personal injury consisting of extreme mental anguish, physical discomfort, inconvenience and annoyance; and for loss the services and companionship of plaintiff's wife and for the necessary expenses of her medical care. The plaintiff also sought punitive damages and a judgment enjoining certain of defendants' activities and requiring the abatement of certain conditions.
2
There was no evidence to sustain the claims with respect to the livestock or the medical expenses and loss of consortium, and the case was submitted to a jury only upon the questions of actual damages for injury to plaintiff's property, punitive damages and damages for inconvenience, annoyance and discomfort of plaintiff. The jury returned a verdict in favor of the plaintiff in the sum of $4,500 actual damages, $3,625 punitive damages, and $500 actual damages for inconvenience, annoyance and discomfort. The verdict for actual damages of $4,500 was reduced by a remittitur to $2,419.51, and judgment in the sum of $6,544.51 was entered against the defendants. The court, concluding that certain of defendants' mining operations created a nuisance, ordered the abatement of those conditions which interfered with natural water courses on lands adjacent to plaintiff's property and enjoined such of the activities as damaged plaintiff in the free use and enjoyment of his land. The principal questions raised on appeal relate to instructions as to damages to plaintiff's property resulting from the alleged nuisance, the right to punitive damages, and abatement of conditions interfering with the natural flow of water.
3
Plaintiff's evidence established that in 1941 he purchased the farm in question, at which time there was limited amount of coal mining activity in the area. A six room house and other buildings were constructed, along with additional improvements, at a total cost of approximately $6,500. In 1951 there was some coal mining activity near plaintiff's property conducted by others than those involved in this action. In October, 1954 the defendants moved heavy machinery onto the property adjoining the plaintiff on the north, and began strip mining operations which, for the purpose of obtaining coal, necessitated the removal of the overburden from the underlying coal deposits. Within a short time the operations were extended to the property adjoining the plaintiff on the east. Throughout the time that the mining activities were being conducted by these defendants, explosives were used to loosen the overburden, which was then removed in long strips and placed in piles called 'spoil banks', next to the pits formed by this removal process. After removal of the coal, these pits were 40 to 50 feet in depth. Plaintiff testified that heavy charges of blasting poweder,1 some of which were exploded within 85 feet of his house, knocked putty from the windows of the house, caused its floors to sink, its foundation and walls to crack inside and outside, ruined his water well and damaged his outbuildings. He also testified that in addition to the dust caused by the blasting and use of machinery, the existence of the large piles of overburden, with coal dust on top, caused large amounts of dust to be blown onto his property and into his home and buildings; that the spoil banks 20 to 25 feet in height also had the effect of damming serveral natural water courses and diverting water into a single channel, thereby causing portions of his property to be excessively flooded during heavy rainfall, and that the digging of the deep pits created an unnatural drainage situation which caused his orchard to die for lack of water. Plaintiff also testified that the heavy machinery, in removing the overburden and coal, operated a very short distance from his house and property, twenty-four hours a day, and that trucks carrying coal passed within 15 feet of his house, creating additional noise and dust;2 and that the terrifying noise of the machines so close to the house prevented sleep at night. Plaintiff testified that he complained to the superintendent and other employees and asked that something be done to relieve the condition, but that he obtained no relief.
4
The court instructed the jury that a nuisance results when a person so uses his property as to cause a substantial injury to the property of another, and then stated that 'If the facts show the mining operations were being conducted in such manner as to constitute a private nuisance causing a substantial injury to the property of the plaintiff, then the plaintiff may recover compensation for the injury sustained, and the Constitution of Oklahoma provides that no private property shall be taken or damaged for private use with or without compensation unless by consent of the owner, and in cases of this character, the use need not be of a careless or negligent nature. Even though the defendants might not have been guilty of carelessness or negligence, as would be required in ordinary lawsuits, if in the use of their property along adjacent to the property of plaintiff, in their mining operations, they caused substantial injury to the property of the plaintiff, he has a right under the law to recover as for a private nuisance.' The defendants urge that this instruction is statement of strict liability, or liability without fault, and is an unwarranted interpretation of Article 2, 23 of the Oklahoma Constitution.3
5
This case arose in Oklahoma, and, of course, is controlled by Oklahoma law. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. In a long line of decisions the Oklahoma courts have sustained recoveries under conditions and circumstances such as are shown here, without proof of negligence on the port of the defendants. City of Muskogee v. Hancock, 58 Okl. 1, 158 P. 622, L.R.A.1916F, 897; Tibbets & Pleasant v. Bendict, 128 Okl. 106, 261 P. 551; Fairfax Oil Co. v. Bolinger, 186 Okl. 20, 97 P.2d 574; Phillips Petroleum Co. v. Vandergriff, 190 Okl. 280, 122 P.2d 1020; British-American Oil Producing Co. v. McClain, 191 Okl. 41, 126 P.2d 530; Seismograph Service Corp. v. Buchanan, Okl., 316 P.2d 185;4 Smith v. Yoho, Okl., 324 P.2d 531; Superior Oil Co. v. King, Okl., 324 P.2d 847.
6
While seemingly conceding that the Oklahoma decisions have construed Art. 2, 23 of the Constitution to permit recovery without a showing of negligence in cases of this type, the defendants contend that each of those cases was premised on a tacit determination that the complained-of activity was of an ultrahazardous nature. From this, they urge, it follows that the instruction in this case was erroneous because it authorized recovery, without a finding of negligence, for all damage to the plaintiff and his property, even though some, if not all, of this damage was caused by activity that was not ultrahazardous. Although some of the cited cases arose out of situations which might be classed as ultrahazardous, there is no indication that the Oklahoma courts intended to limit the applicability of the constitutional provision to only such situations. In City of Muskogee v. Hancock, supra, the court held that the use of explosives in a populous area and within a few feet of plaintiff's building subjected the defendant to strict liability for damage caused by vibration and concussion. However, the court was troubled by the decisions in some jurisdictions, to the effect that absolute liability is imposed where the blasting cause physical objects to be propelled onto the plaintiff's property, but that where the injury results solely from concussion and vibration, recovery must be predicated on a showing of negligence. The court rejected this rule, partly because of the unjust results which it reaches, and partly because the eminent domain provision of the Oklahoma Constitution (Art. 2, 24) requires compensation in all cases where private property is damaged for public use. The Muskogee case was followed in Tibbets & Pleasant v. Benedict, supra, involving substantially identical facts. The court again stated that a rule requiring proof of negligence before damages are recoverable for injury caused solely by vibrations and concussions from blasting activity could not be adopted in the face of the Oklahoma Constitution.
| {
"pile_set_name": "FreeLaw"
} |
UNITED STATES of America, Plaintiff-Appellee,
v.
Derrick Dontea WALKER, Defendant-Appellant.
No. 99-12242.
United States Court of Appeals,
Eleventh Circuit.
Sept. 26, 2000.
Appeal from the United States District Court for the Northern District of Florida. 9no. 98-00058-CR-1-
MMP), Maurice M. Paul, Judge.
Before COX, WILSON and GIBSON*, Circuit Judges.
PER CURIAM:
The issue presented in this appeal is whether the mandatory life sentence provided in 21 U.S.C. §
841(b)(1)(A) applies to a conviction for violating 21 U.S.C. § 846 by conspiring to commit a substantive drug
crime that would itself be covered by 21 U.S.C. § 841(a)(1). Joining the position taken by the other three
circuits that have addressed the issue, we hold that it does.
BACKGROUND
Derrick Walker was indicted on one count each of conspiracy to possess with intent to distribute
cocaine base (crack) in violation of 21 U.S.C. § 846, and possession with intent to distribute cocaine base in
violation of 21 U.S.C. § 841(a)(1). Pursuant to a plea bargain, Walker pled guilty to the § 846 conspiracy
count, while the government dismissed § 841(a)(1), the substantive possession count. The presentence report
attributed two-and-a-half kilograms of cocaine base and 300 grams of powder cocaine to Walker.
At sentencing, Walker objected to the application of 21 U.S.C. § 841(b)(1)(A), which provides in
relevant that: "If any person commits a violation of this subparagraph or of section 849, 859, 860, or 861 of
this title after two or more prior convictions for a felony drug offense have become final, such person shall
be sentenced to a mandatory term of life imprisonment without release." Although Walker conceded that he
had two prior felony drug convictions, he contended that § 841(b)(1)(A) did not apply because his present
conviction was based upon a conspiracy charge under § 846, which is not one of the sections listed in §
841(b)(1)(A). The district court overruled the objection and applied the provision, sentencing Walker to the
*
Honorable John R. Gibson, U.S. Circuit Judge for the Eighth Circuit, sitting by designation.
mandatory sentence of life imprisonment under it. He appeals.
DISCUSSION
We review the district court's interpretation and application of the aforementioned statutes under the
standard of de novo review as applied to all statutory interpretation involving sentencing. See United States
v. Head, 178 F.3d 1205, 1206 (11th Cir.1999), cert. denied, --- U.S. ----, 120 S.Ct. 833, 145 L.Ed.2d 700
(2000).
Walker's principal argument is that the plain language of § 841(b)(1)(A) rules out applying it to a §
846 conviction, because § 846 is not one of the sections listed in the statutory provision. See United States
v. Koonce, 991 F.2d 693, 698 (11th Cir.1993) ("The canon of statutory construction that the inclusion of one
implies the exclusion of others is well-established."). Walker is correct that the plain language of the statute
involved resolves the issue before us, but the language directs us to a result opposite to the one advanced.
Section 846 itself provides: "Any person who attempts or conspires to commit any offense defined
in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission
of which was the object of the attempt or conspiracy." 21 U.S.C. § 846 (emphasis added). The reference to
"this subchapter" is to subchapter I of Chapter 13 of Title 21, and "any offense defined in this subchapter"
includes the offenses defined in 21 U.S.C. §§ 841—863. Thus Walker's sentencing under 21 U.S.C. §
841(b)(1)(A) is covered by section 846.
Walker was convicted of conspiring to commit one of those offenses described in subchapter I,
specifically § 841(a)(1). By virtue of the plain language of § 846, Walker is subject to the same penalties for
conspiring to commit the § 841(a)(1) offense as he would be for actually committing that offense. Because
possessing 50 or more grams of cocaine base is "a violation of this subparagraph" as described in §
841(b)(1)(A) and Walker had two prior felony drug convictions, a mandatory life sentence applies for
conspiring to commit a section 841(a)(1) offense.
This is the same reasoning three other circuits have relied upon in holding § 841(b)(1)(A) applicable
to § 846 conspiracy convictions. See United States v. O'Brien, 52 F.3d 277, 278-79 (9th Cir.1995); United
States v. Gaviria, 116 F.3d 1498, 1534 (D.C.Cir.1997) (per curiam), cert. denied sub nom. Naranjo v. United
States, 522 U.S. 1082, 118 S.Ct. 865, 139 L.Ed.2d 763 (1998); United States v. Wessels, 12 F.3d 746, 752
(8th Cir.1993). No circuit has held to the contrary.
It should further be noted that Walker's reliance on United States v. Winston, 37 F.3d 235 (6th
Cir.1994), is misplaced. In Winston, the Sixth Circuit held that drug quantities from two separate transactions
could not be aggregated to reach the quantity threshold required for application of § 841(b)(1)(A). See
Winston, 37 F.3d at 240-41. Winston would be relevant if Walker was arguing that the district court erred
in attributing more than 50 grams of cocaine base to him (the threshold amount application of §
841(b)(1)(A)). But Walker did not raise any objections to the PSI finding that he was responsible for two and
one-half kilograms of cocaine base and 300 grams of powder cocaine for this single offense. The district
court did not plainly err by using the quantity of drugs specified in the PSI as a basis for sentencing Walker.
See United States v. Hedges, 175 F.3d 1312, 1315-16 (11th Cir.1999) (holding that the district court did not
err in relying on statements in presentence investigative report where the statements were undisputed by the
defendant), cert. denied, --- U.S. ----, 120 S.Ct. 265, 145 L.Ed.2d 222 (1999).1 Therefore, the district court's
imposed sentence of life imprisonment stands.
CONCLUSION
We conclude that the district court properly applied 21 U.S.C. § 841(b)(1)(A) in sentencing Walker,
as the plain language of the statute dictates the result.
AFFIRMED.
1
This case is also clearly distinguishable from Apprendi v. New Jersey, submitted by Walker as
supplemental authority supporting his case. --- U.S. ----, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In
Apprendi, the Supreme Court required that during a jury trial, the government must be made to prove and
the jury convict on the factual evidence necessary for a sentence enhancement beyond the statutory
maximum. As Walker pled guilty in this case and accepted the contents of the PSI, he lost any right to
appeal on the basis of this argument.
| {
"pile_set_name": "FreeLaw"
} |
283 F.2d 117
Ethel Foote STARKE, Trustee under the Last Will and Testament of Lewis A. Foote, Deceased, Plaintiff-Appellant,v.MANUFACTURERS NATIONAL BANK OF DETROIT, a national banking association, Defendant-Appellee.
No. 14050.
United States Court of Appeals Sixth Circuit.
October 18, 1960.
Joseph H. Guttentag, Detroit, Mich., R. M. Waterman, McClintock, Fulton, Donovan & Waterman, Detroit, Mich., on brief, for appellant.
Carson C. Grunewald, Detroit, Mich., Henry C. Bogle and Bodman, Longley, Bogle, Armstrong & Dahling, Detroit, Mich., on brief, for appellee.
Before MILLER, WEICK and O'SULLIVAN, Circuit Judges.
PER CURIAM.
1
Appellant brought this action for alleged breach of a contract, executed in September, 1933, by which the owner of a patent for a System of Accrual Accounting, issued February 15, 1927, granted to appellee the right to use the patented system in connection with its banking operations. The system included the use of the patent and contemplated the use of particular copyrighted accounting forms, such as Interest Tables, Pro rata Tables and Accrual Ledger Control Sheets, with printed instructions which accompanied them. The owner of the system promised to sell appellee these forms at reasonable prices, and appellee promised not to purchase forms used with the System from anyone else.
2
The contract provided that in the event the appellee absorbed other banks, "which at such time are not licensed to use the System", the right and license to use and apply the System to the assets of such absorbed banks could be obtained for certain payments therein designated.
3
The patent expired February 15, 1944.
4
About July, 1952, and November, 1955, appellee absorbed two Detroit banks and thereafter continued the use of the same accrual accounting methods as it used prior to such dates, in connection with all of its combined assets and accounts.
5
The appellee declined to make the payments provided by the paragraph of the contract with reference to the assets of the merged banks, hereinabove referred to. This action followed.
6
The District Judge ruled that the contract granted to appellee a nonexclusive license to use the patented system; that a licensing agreement terminates with the expiration of the patent; that when the appellee applied the system to the assets of the two absorbed banks, the system was in the public domain; and that it would be an unreasonable construction of the contract to interpret it to require the appellee to obtain a license for the use of the system at a time when any bank or anyone else could have used the system without obtaining permission to do so. A discussion of the issue with citation of authorities is contained in his opinion.
7
We concur in the ruling of the District Judge for the reasons stated in his opinion.
8
The judgment is affirmed.
| {
"pile_set_name": "FreeLaw"
} |
610 F.2d 1000
198 U.S.App.D.C. 58
U. S.v.Garris
No. 79-1375
United States Court of Appeals, District of Columbia Circuit
11/7/79
1
D.C.D.C.
2
VACATED AND REMANDED*
| {
"pile_set_name": "FreeLaw"
} |
MARY'S OPINION HEADING
NO.
12-07-00404-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS
DISTRICT
TYLER,
TEXAS
§ APPEAL FROM THE
IN
THE INTEREST OF
§ COUNTY COURT AT LAW
C.M.,
A CHILD
§ HOUSTON COUNTY, TEXAS
MEMORANDUM
OPINION
PER
CURIAM
This appeal is being dismissed for want of jurisdiction
pursuant to Texas Rule of Appellate Procedure 42.3(a). The trial court’s judgment was signed on
April 12, 2007. Under rule of appellate
procedure 26.1(a), unless Appellant timely filed a motion for new trial or
other postjudgment motion that extended the appellate deadlines, his notice of
appeal was due to have been filed “within 30 days after the judgment [was]
signed,” i.e., May 14, 2007.
Appellant filed his notice of appeal on October 31, 2007,
but did not file a motion for new trial.
Because the notice of appeal was not filed on or before May 14, 2007,
the notice was untimely filed and this court has no jurisdiction to consider
the appeal.
On October 31, 2007, this court notified Appellant
pursuant to Texas Rule of Appellate Procedure 42.3(a) that his notice of appeal
was untimely. Appellant was further
informed that unless the record was amended on or before November 13, 2007 to
establish the jurisdiction of this court, the appeal would be dismissed. This deadline has passed, and Appellant has
neither shown the jurisdiction of this court or otherwise responded to its
October 31, 2007 notice.1
Because this court is not authorized to extend the time
for perfecting an appeal except as provided by
Texas Rules of Appellate Procedure 26.1 and 26.3, the appeal is dismissed
for want of jurisdiction. See
Tex. R. App. P. 42.3(a).
Opinion delivered November 30, 2007.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle,
J.
(PUBLISH)
1 The
materials received in this appeal include a copy of a letter to the Houston
County District Clerk by which Appellant transmitted his notice of appeal and a
request for findings of fact and conclusions of law. As a general rule, a request for findings of
fact and conclusions of law must be filed within twenty days of the date the
judgment was signed. Tex. R. Civ. P. 296. Appellant did not file his request within the
prescribed time frame. In a contested
child support case, the request for findings of fact and conclusions of law may
be made orally during the hearing or in writing, filed not more than ten days
after the hearing. Tex. Fam. Code Ann. § 154.130(a)
(Vernon Supp. 2007). Because Appellant
did not respond to our October 31, 2007 notice, we assume that this subsection
is not applicable here.
| {
"pile_set_name": "FreeLaw"
} |
740 F.Supp.2d 950 (2010)
NATIONAL JOCKEY CLUB, Plaintiff,
v.
Floyd "Chip" GANASSI and Chip Ganassi Group, LLC, Defendants.
No. 04 C 3743.
United States District Court, N.D. Illinois, Eastern Division.
September 14, 2010.
*953 James R. Pranger, Neal, Gerber & Eisenberg, Jeralyn Hartwick Baran, Carri Ann Conlon, David Seth Argentar, Meredith Marie Casper, Chuhak & Tecson, P.C., Chicago, IL, for Plaintiff.
Brian William Bell, Alfred Kirkland Murray, II, Swanson, Martin & Bell, Keely V. Lewis, Conway & Mrowiec, Chicago, IL, Eric Soller, Pietragallo, Gordon, Alfano, Bosick & Raspanti, LLP, Pittsburgh, PA, for Defendants.
MEMORANDUM AND ORDER
BLANCHE M. MANNING, District Judge.
This case flows from the transformation of Sportsman's Park, a horse racing venue *954 in Cicero, Illinois, owned by plaintiff National Jockey Club ("NJC"), into the Chicago Motor Speedway ("CMS"), an ultimately unsuccessful facility for horse and auto racing. To effect this transformation, NJC and defendant Chip Ganassi Group, LLC ("Ganassi Group") formed CMS, an Illinois limited liability company. Construction was financed through a construction loan and capital contributions by NJC and Ganassi Group. In addition, defendant Floyd "Chip" Ganassi, who is involved in professional motor racing as both a driver and operator of motor racing teams in the United States, personally guaranteed CMS's obligations under the lease up to $22.5 million, although that amount was subsequently reduced to $10.5 million.
The court found that certain issues were equitable and thus had to be decided by the court. It then held a jury trial, and the jury awarded damages to NJC on its breach of contract claim against Mr. Ganassi based on the guaranty and to Ganassi Group based on its breach of contract counterclaim based on a contract between NJC and Ganassi Group regarding operation of CMS. Three post-trial motions are before the court: (1) NJC's renewed motion for judgment as a matter of law as to defendants' counterclaims or, in the alternative, for a new trial; (2) Mr. Ganassi's renewed motion for a new trial; and (3) Mr. Ganassi's motion for judgment as a matter of law. In addition, Mr. Ganassi's claim for rescission or, alternatively, a set-off are before the court as these issues were reserved for a bench trial. For the following reasons, the parties' post trial motions are denied and the court finds that Mr. Ganassi is not entitled to rescission or a set-off.
I. Background
The court begins with a brief summary of the facts presented at trial, the jury's verdict, and the equitable issues remaining for the court's determination.
A. The Parties
In 1928, Al Capone opened Sportman's Park in Cicero, Illinois, as a dog racing venue. By the time of the events at issue in this lawsuit, NJC (an Illinois corporation with its principal place of business in Illinois) owned and operated Sportsman's Park and featured pari-mutuel horseracing there.[1] Defendant/counterplaintiff Floyd "Chip" Ganassi is a former racecar driver who currently operates professional motor racing teams and is a citizen of Pennsylvania. Ganassi Group LLC ("Ganassi Group") is a limited liability company whose members consist of Mr. Ganassi and Chip Ganassi Racing Teams, Inc. ("Teams"), a Michigan corporation with its principal place of business in Michigan.
B. Chicago Motor Speedway
1. The Operating Agreement
In 1997, representatives of NJC met with Mr. Ganassi and his representatives to discuss the idea of converting Sportsman's Park into a facility for both horse and auto racing. Mr. Ganassi decided to form Ganassi Group, and then NJC and Ganassi Group agreed to form a limited liability company known as Chicago Motor Speedway, LLC ("CMS"). On March 10, 1999, NJC and Ganassi Group thus executed *955 the "Chicago Motor Speedway Limited Liability Company Operating Agreement" (the "Operating Agreement"). CMS was a manager-managed Illinois limited liability company. Under the Operating Agreement, Ganassi Group and NJC served as members of CMS, and four managers were appointed to act as managers of CMS.
2. The Lease and Personal Guaranty
On July 8, 1998, NJC, in its capacity as landlord of the Sportsman's Park facility, entered into a lease under which CMS was the tenant and leased the real property and racing facilities at Sportsman's Park for the purpose of conducting motor sports events (the "Lease"). Mr. Ganassi's personal guaranty was part of the Lease and provided, in pertinent part, that:
For value received, and as consideration and inducement for National Jockey Club to enter into the above and foregoing Lease with the Chicago Motor Speedway, LLC of which this personal guaranty is a part, the undersigned, Mr. Chip Ganassi of Pittsburgh, Pennsylvania, does hereby personally guaranty repayment of fifty percent (50%) of funds borrowed to make Landlord Improvements as set forth in Section 8(a) of the above and foregoing lease but limited to a maximum personal guaranty of $22,500,000.00; provided however, that National Jockey Club and Chicago Motor Speedway L.L.C. agree to use their best reasonable efforts to remove and vacate the requirement of the personal guaranty of Chip Ganassi as soon as acceptable to the lender(s) of the aforesaid primary financing for Landlord Improvements for which Chip Ganassi provides his personal guaranty.
In addition to the foregoing, Chip Ganassi, National Jockey Club, and the Chicago Motor Speedway L.L.C. agree to use their best efforts to remove and vacate the requirement for any required mortgage of the Premises by National Jockey Club as soon as acceptable to the lender(s) of the aforesaid primary financing for Landlord Improvements for which National Jockey Club may be required to provide a mortgage on the Premises.
The agreement to use best efforts to remove and vacate the Personal Guaranty of Chip Ganassi and the required mortgage of National Jockey Club are separate, distinct, and independent obligations and considerations of the parties to this Lease Agreement, and the accomplishment of one is not contingent on the accomplishment of the other.
NJC's Ex. 28.
3. Financing Chicago Motor Speedway
NJC and Mr. Ganassi understood that converting Sportsman's Park into a horse/motor sports venue was a very expensive proposition. They anticipated that NJC, the owner of the Sportsman's Park facility, would need to mortgage the Sportsman's Park property and improvements as security for financing and that Mr. Ganassi would need to personally guarantee the loans necessary to secure the funds needed to transform the property. They also contemplated that Teams would pledge its 720,000 shares of Championship Auto Racing Teams, Inc. ("CART") as additional security.
On November 18, 1998, NJC executed a Construction Loan Agreement ("CLA") with Harris Bank, N.A., and a syndicate of other banks (the "Bank Group") to partially finance construction of CMS. As security for the loan, NJC granted the Bank Group a mortgage and security interest in the Sportsman's Park property and improvements, including the new facilities to be built with the loan proceeds. In addition, Teams pledged 720,000 shares of CART stock by executing a Pledge Agreement. *956 The next day, the Lease and Mr. Ganassi's personal guaranty were assigned to the Bank Group.
4. The Eighth Amendment
Beginning in 2000, Teams sought to obtain the Bank Group's consent to release the Bank Group's security interest in the CART stock. On July 11, 2001, NJC, each of the banks in the Bank Group, and Mr. Ganassi (individually and on behalf of Teams) executed a document entitled "Eighth Amendment, Waiver and Consent to Construction Loan Agreement" (the "Eighth Amendment"). The Eighth Amendment provided in relevant part that:
Racing Teams has heretofore executed and delivered to the Agent its Pledge and Security Agreement (the "Pledge Agreement") as of and the Guarantor has executed a personal guaranty of the Lease and each hereby consents to the Eighth Amendment, Waiver and Consent to the Construction Loan Agreement as set forth above. The Guarantor confirms that his guaranty of the Lease and all of its obligations thereunder remain in full force and effect to the extent of $10,500,000. Each of the undersigned further agrees that the consent of the undersigned to any further amendments to the Agreement shall not be required as a result of this consent having been obtained.
NJC Ex. 102.
Pursuant to the Eighth Amendment, the Bank Group released their security interest in the CART stock in exchange for a payment of $12,000,000 on the outstanding loan balance. In addition, as part of this transaction, Mr. Ganassi's $22,500,000 guaranty was reduced to $10,500,00. See id.
5. The Demise of CMS
Unfortunately for all involved, the CMS project was not a success. Thus, in February of 2002, NJC and Ganass | {
"pile_set_name": "FreeLaw"
} |
Filed 1/10/17 Unmodified opinion attached
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
GENOVEVO GONZALES, et al.,
Plaintiffs and Respondents, F070832
v.
CITY OF ATWATER, (Super. Ct. No. CV002234)
Defendant and Appellant,
MICHELLE CARRIZALES,
Defendant and Respondent. MODIFICATION OF OPINION
(NO CHANGE IN JUDGMENT)
THE COURT:
It is hereby ordered that the opinion filed herein on December 15, 2016, be
modified as follows: On page 31, at the end of the sentence just before the Disposition,
delete footnote 19.
Except for the modification set forth, the opinion previously filed remains
unchanged.
This modification does not effect a change in the judgment.
_____________________
GOMES, J.
WE CONCUR:
_____________________
LEVY, Acting P.J.
_____________________
KANE, J.
2.
Filed 12/15/16 Unmodified opinion
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
GENOVEVO GONZALES, et al.,
F070832
Plaintiffs and Respondents,
(Super. Ct. No. CV002234)
v.
CITY OF ATWATER, OPINION
Defendant and Appellant,
MICHELLE CARRIZALES,
Defendant and Respondent.
APPEAL from a judgment and order of the Superior Court of Merced County.
Donald J. Proietti, Judge.
Murphy, Campbell, Alliston & Quinn, George E. Murphy and Suzanne M.
Nicholson, for Defendant and Appellant City of Atwater.
Powers Miller, R. James Miller and Robert F. Bennett, Jr. for Defendant and
Respondent Michelle Carrizales.
Dreyer Babich Buccola Wood Campora, Roger A. Dreyer and Stephen F. Davids,
for Plaintiffs and Respondents.
-ooOoo-
In December 2010, Michelle Carrizales was making a left turn at an intersection in
the City of Atwater (City) when she struck and killed Delia Gonzales, a pedestrian in a
crosswalk. Gonzales’s husband and five adult children (collectively plaintiffs) sued
Carrizales and the City for wrongful death, alleging Carrizales was negligent and the City
was liable under Government Code section 8351 for the dangerous condition of the
intersection. A jury trial was held, at which the jury found Carrizales not negligent and
the City solely liable based on the dangerous condition of the intersection; the jury
awarded plaintiffs approximately $3.2 million in economic and non-economic damages.
In its motion for judgment notwithstanding the verdict (JNOV), the City renewed an
argument it made on its unsuccessful motion for directed verdict that the design
immunity defense of section 830.6 shielded it from liability. The trial court denied the
JNOV.
On appeal from the judgment and order denying its JNOV motion, the City
challenges the jury’s finding that the intersection was in a dangerous condition and
asserts it established the design immunity defense as a matter of law. The City also
attempts to challenge the jury’s finding that Carrizales was not negligent and contends
the non-economic damages awarded plaintiffs were excessive. Since we agree with the
City that the design immunity defense insulates it from liability for any dangerous
condition of the intersection, we do not reach the other issues the City raised and reverse
the judgment against the City.
1 All further statutory references are to the Government Code unless otherwise
specified.
2.
FACTUAL AND PROCEDURAL BACKGROUND
I. The Factual Background
A. The Intersection
Bellevue Road, an east-west thoroughfare through the City, has two lanes in each
direction. Linden Street, which intersects Bellevue, is a north-south collector road with
one lane in each direction that provides access to the residential area south of Bellevue.
Directly north of the intersection is the main driveway serving a Kmart shopping center.
Because an elementary school is less than two blocks away, the intersection has three
yellow crosswalks – two that run east and west across the Kmart driveway and Linden,
and one that runs north and south across the west side of Bellevue.
B. The 2001 Plans
Before 2001, the intersection did not have signals; the side streets – Linden and
the Kmart driveway – were controlled by stop signs, while Bellevue was not. In
February 2001, the transportation consulting firm Fehr & Peers (F&P) completed a
warrants study2 for the City of four intersections along Bellevue, including where
Bellevue intersects Linden, to evaluate the need for traffic signals. Based on the study,
F&P concluded that a signalized intersection was warranted at Bellevue and Linden, as
two warrants for signalization were met: (1) interruption of continuous flow; and
(2) “four-hour volume.” Warrants for minimum vehicular volume (which tested for the
amount of traffic on Bellevue and Linden), minimum pedestrian volume (which looked at
the relationship between vehicular traffic volumes and the number of pedestrians crossing
the intersection), and 12-month accident history were not met at that time.
Frank Lozano, a civil engineer licensed by the State of California who was
employed by the City as its civil engineer from 1999 to 2002, reviewed the warrants
2A warrants study is an analysis of state guidelines, called warrants, that cover
things such as traffic volume, collisions, and school-related issues, to determine whether
signalization is appropriate.
3.
study. Based on the study, the City council approved the installation of signals at the
subject intersection and retained F&P to design the plans.
Robert Rees, a registered civil and traffic engineer who had worked at F&P since
1995, was in charge of the project – he oversaw his staff in the design of the signals, and
preparation of the plans, specifications and estimate. According to Rees, F&P’s practice
was to meet with the City to obtain information, such as the traffic signal’s purpose and
role, as well as the City’s local preferences, including the signal phasing typically used in
the community. Based on that information, as well as a field survey, F&P would develop
a preliminary set of plans that included the basic equipment and layout of the phasing,
including the location, poles and signals. The City would then review the plan and make
technical comments, with the review process being repeated until the City and F&P
concurred the plans were complete.
The plans F&P developed called for permissive phasing for north and southbound
traffic, which meant that vehicles traveling north on Linden and south from the Kmart
driveway had a green ball signal at the same time. There were no left-turn signals for that
traffic; instead, vehicles turning left were required to yield on green and turn when safe to
do so. This required northbound drivers to proceed into the intersection, watch for
oncoming traffic and check for pedestrians before executing their turns. In contrast, left-
turning traffic on Bellevue had a protected left turn signal, meaning that such traffic
would move only on a left green arrow.
Rees stamped the plans in March 2001, which meant that he generally reviewed,
approved of them, and agreed with all aspects of their engineering design as of that date.
Rees did not have an independent recollection of the project or conversations he had at
the time concerning the plans or whether permissive phasing was discussed. Rees did not
personally prepare the light phasing; that was the responsibility of a former F&P
employee, Lisa Phillips, who worked under Rees and left the firm in 2003 or 2004.
Phillips, however, would not have been responsible for selecting the phasing, as phasing
4.
was typically a city recommendation or direction. Based on his practice, Rees believed
the City would have selected the permissive phasing for this project.3 At trial, Rees
testified he stood by the use of permissive phasing in the plans; he would not have signed
the plans had he thought permissive phasing was inappropriate or unreasonable. F&P
regularly used permissive phasing on the projects Rees worked on that involved major
thoroughfares with minor streets intersecting them.
Lozano, along with his technical staff, reviewed the plans for the City and engaged
in the interactive process with F&P that led to the finalization of the plans. Based on his
custom and practice, Lozano would have reviewed the plans in their entirety, including
the light phasing, and discussed the use of permissive signals with F&P before approving
the plans.4 When Lozano reviewed the | {
"pile_set_name": "FreeLaw"
} |
512 F.2d 475
UNITED STATES of America, Plaintiff-Appellant,v.CONTINENTAL CASUALTY COMPANY, Defendant-Appellee.
No. 74-1896.
United States Court of Appeals,Fifth Circuit.
May 5, 1975.Rehearing Denied June 3, 1975.
Robert W. Rust, U. S. Atty., Mervyn L. Ames, Asst. U. S. Atty., Miami, Fla., Leonard Schaitman, Michael Kimmel, Attys., Dept. of Justice, Washington, D. C., for plaintiff-appellant.
Wesley G. Carey, Steven R. Berger, Miami, Fla., for defendant-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before DYER, MORGAN and GEE, Circuit Judges.
LEWIS R. MORGAN, Circuit Judge:
1
This case arises, somewhat tangentially, from a contract awarded on June 6, 1966, by the United States Army Corps of Engineers to Mike Bradford & Co., Inc. (hereafter "Bradford") and Southern Crane Corp., Inc., as a joint venture, in the amount of $273,645.00 for production of eleven hoists to be used in a lock and dam project on the Arkansas River. The joint venture immediately obtained a performance bond for $136,822.50 from appellee Continental Casualty Company (hereafter "Continental"), a corporate surety. On August 16, Bradford subcontracted with McNally Pittsburgh Manufacturing Corporation (hereafter "McNally") for fabrication of some of the equipment.
2
As provided by contract, McNally furnished progress reports known as "work estimates" to Bradford, which forwarded them to the government; the government paid Bradford which was in turn obliged to pay McNally. As of August 30, 1967, four payments totalling $159,872.13 had been made to Bradford; unfortunately, none of this money had been forwarded to McNally, even though that company had by then completed 66% of the fabrication. Suspecting finally that all was not as it should be, McNally notified the government on December 27, 1967, that it had not yet received payment from Bradford. In an attempt to improve what appeared to be a precarious position, McNally subsequently declared a lien on the partially completed equipment, all of which was still in its plant; the government denied the validity of the lien.
3
In early March, 1968, Bradford notified the government and Continental that it was financially unable to continue the project. On March 15, the government informed Bradford and Continental that the contract was terminated for default; in the same letter the government stated that McNally was still obligated to deliver the completed equipment and that all of the equipment covered by the progress payments to Bradford were the property of the United States. McNally, as noted, disagreed with this analysis, and asserted that its alleged lien took precedence over any government claim. At this point, the government took the action which has since become the focal point of this litigation: on May 27, 1968, it granted a reprocurement contract to McNally for $291,000.00 for purchase of the hoists. The contract thus ignored the $159,872.13 in payments already made to Bradford for purchase of the same equipment. On June 5, 1968, the government demanded payment from Continental of $177,227.13 (the second payment of $159,872.13 plus $17,355.00 in reprocurement costs) and on October 13, 1972, it filed suit in federal district court to enforce its claim. On cross motions for summary judgment, the court ruled in favor of Continental as to any liability in excess of the government's reprocurement costs. The court held that the government's second payment to McNally for the 66% of the equipment for which Bradford had already been paid prejudiced Continental's right of subrogation against McNally and therefore released it pro tanto from its obligation to the government. For reasons explained below, we affirm the judgment of the district court.
4
Ordinarily in a case such as this one, we would initially determine whether state or federal law controls our disposition of the substantive issue. Since the suit was brought in Florida, and the surety bond was made there, and Florida generally applies a lex loci contractu analysis,1 our choice would be between federal and Florida law. Since we find that there is no difference between the provisions of these two bodies of law in this area, however, we need not decide the choice of law question, but may proceed directly to the substantive problem.
5
It may be helpful to clarify at the outset precisely what is at issue here. The government insists that the right to subrogation does not accrue in favor of a surety until the surety has performed its contractual obligation, a precondition which Continental clearly did not fulfill. This proposition is true, but it is only a starting point for our analysis of this case; we must decide which party should bear the loss when the government in effect prevents the surety from performing its obligation, thereby negating any possibility of subrogation.
6
As a creation of equity, subrogation is governed generally by broad equitable principles rather than by strict legal rules. New York Title and Mortgage Co. v. First National Bank of Kansas City, Mo., 51 F.2d 485 (8th Cir. 1931), cert. denied 284 U.S. 676, 52 S.Ct. 131, 76 L.Ed. 572 (1931); Dantzler Lumber and Export Co. v. Columbia Casualty Co., 115 Fla. 541, 156 So. 116 (1934). Therefore, where one of two relatively innocent parties must suffer a loss, the one whose action causes the loss must bear it. Gray v. Jacobsen, 56 App.D.C. 353, 13 F.2d 959 (1926). Further, a surety is entitled to be subrogated to the benefit of all securities and means of payment under the creditor's control, and any act by the creditor depriving the surety of this right discharges it pro tanto; thus, the creditor must, for the surety's benefit, apply to the debt all money or security within his control and which he has a right to apply. If he voluntarily surrenders or releases such security, the surety is discharged pro tanto. See Standard Accident Insurance Co. v. Bear, 134 Fla. 523, 184 So. 97 (1938). Of course, the creditor will not always be able to prevent loss to the surety; nevertheless, it must act in good faith and not unreasonably prejudice the surety's right to subrogation. See United States v. United States Fidelity and Guaranty Co., 236 U.S. 512, 35 S.Ct. 298, 59 L.Ed. 696 (1914); Cf. Gibbs v. Hartford Accident and Indemnity Co., 62 So.2d 599 (Fla.1952).
7
Applying these broad maxims is of course more difficult than stating them in the abstract. The factual situation in early 1968, and its legal ramifications, were obviously unsettled. The government had paid out more than $159,000.00 for equipment to which it therefore had a valid claim under the terms of the contract.2 On the other hand, McNally was contending that it had a valid lien on the equipment and that such lien had "attached as soon as the work and material was furnished ... prior to the passing of any title to the Corps of Engineers." Clearly, resolving this contest in commercial metaphysics would have taken some time and could have delayed completion of the dam and lock.
8
As noted above, the government chose to extricate itself from this dilemma by simply abandoning its claim to title in the equipment and paying for it a second time. As the district court summarized:
9
The one problem with this arrangement ... is that by relating the contract in this fashion (the Corps) not only obligated the surety to pay the full amount of the bond, but concurrently destroyed its right to be subrogated to the title the Corps held in the hoists at the time of reprocurement. The surety could not now proceed against McNally to replevy the partially completed-and partially paid for-hoists.
10
The surety had to be given some way to protect its right to be subrogated to the title of the Corps in the hoists at the date of termination, and the (reprocurement contract) effectively destroyed that right.
11
Additionally, and crucially, the government could have protected Continental's right without impairing its own interest in speedy completion of the project. It could have initiated litigation against McNally to determine title to the 66% of the hoists for which it had already paid, while at the same time paying into court $159,872.13. While the suit was in progress, it could then have entered into the reprocurement contract with McNally, and demanded payment of the bond by Continental. After paying the bond, Continental would have been subrogated to any right the Corps was eventually determined to have had in the partially completed equipment.
12
Balancing the equities of the two parties, then, we find that the scales tip in favor of the surety. The government has great discretion in the administration of its contracts, and its interest in their timely completion is entitled to great weight. Argonaut Insurance Company v. United States, 434 F.2 | {
"pile_set_name": "FreeLaw"
} |
177 B.R. 619 (1995)
In re Michael Joe and Vera STEVENS.
Bankruptcy No. 94-40357 S.
United States Bankruptcy Court, E.D. Arkansas, Little Rock Division.
January 24, 1995.
Joel Taylor, for debtor.
Diana Maulding, Little Rock, AR, for Warehouse Paint.
James Clark, Little Rock, AR, for intervenor.
Randy Rice, trustee, Little Rock, AR.
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
MARY D. SCOTT, Bankruptcy Judge.
THIS CAUSE is before the Court upon the debtors' Motion for Summary Judgment, filed on December 28, 1994, to which the creditor Warehouse Paint responded on January 10, 1995. The issue before the Court is a simple one regarding property of the estate. Indeed, the Supreme Court has issued an opinion on the issue before the Court: whether a debtor's interest in an ERISA qualified pension plan is property of the estate. Despite the relative simplicity of this issue, it has engendered a tortuous, litigation in this case.
The debtors filed a Chapter 13 petition in bankruptcy on February 23, 1994. The creditor Warehouse Paint twice objected to the exemptions filed by the debtors, followed by several hearings, revisions to schedules, and settlements, which, apparently, did not completely resolve the dispute between the parties. Upon the conversion of the case to Chapter 7 of the Bankruptcy Code, the debtor filed amended schedules pursuant to section 522(b)(1) listing as exempt the debtor husband's interest in woodworking tools and his interest in a profit sharing plan at his former place of employment, Entergy Corporation. Although the debtor ceased working for Entergy Corporation prior to filing the bankruptcy petition, he had elected to maintain his interest in the profit sharing plan, rather than receiving a disbursement.
On July 15, 1994, the creditor Warehouse Paint again objected to the exemptions. On September 13, 1994, the matter was called for hearing, but neither the debtors nor their attorney appeared. Accordingly, the creditor Warehouse Paint submitted an Order sustaining its objections to exemptions,[1]*620 which was entered on September 19, 1994. This Order prompted the debtors to obtain new counsel who immediately moved to set aside the Order of September 19, 1994. In addition, Entergy Corporation moved for, and was granted, permission to intervene in the proceedings. Hearing was held on November 15, 1994, on the Motion to Set Aside, after which the motion was granted, by Order entered on November 18, 1994.
The debtors have now moved for summary judgment on the issue of whether the profit sharing plan is property of the estate. The debtors assert that, under Patterson v. Shumate, 504 U.S. 753, 112 S.Ct. 2242, 119 L.Ed.2d 519 (1992), the profit sharing plan, an Employee Retirement Income Security Act ("ERISA") qualified plan, is not, as a matter of law, property of the estate such that an objection to the exemption of such property is meaningless and should be dismissed.[2] Warehouse Paint asserts that there is a question of fact as to whether the funds are held by Entergy Corporation as a fiduciary such that summary judgment is inappropriate.
Property of the estate includes all legal or equitable interests of the debtor in property as of the commencement of the case. 11 U.S.C. § 541(a). However, under section 541(c)(2), "A restriction on the transfer of a beneficial interest of the debtor in a trust that is enforceable under applicable nonbankruptcy law is enforceable in a case under this title." This means that restrictions on transfers under ERISA qualified plans are valid and enforceable in bankruptcy. Patterson v. Shumate, 504 U.S. 753, 112 S.Ct. 2242, 119 L.Ed.2d 519 (1992). "The natural reading of the provision entitled a debtor to exclude from property of the estate any interest in a plan or trust that contains a transfer restriction enforceable under any relevant nonbankruptcy law." Id. at ___, 112 S.Ct. at 2246. The uncontroverted evidence before the Court is that the plan in which the debtor husband has an interest is ERISA qualified and that the plan contains, as it must under ERISA, 29 U.S.C. § 1056(d)(1); 26 U.S.C. § 401(a)(13), a provision restricting transfers of property. Thus, since the plan is ERISA qualified, the debtor husband's interest in the profit sharing plan is excluded as property of the estate. See Patterson v. Shumate, 504 U.S. at ___, 112 S.Ct. at 2246.
Warehouse Paint asserts that "controlling" ERISA section 1056(a)(3) removes the trust status of the funds when an employee quits his job. This is an incorrect reading of the statute. Section 1056 provides in part:
(a) Commencement date for payment of benefits.
Each pension plan shall provide that unless the participant otherwise elects, the payment of benefits under the plan to the participant shall begin not later than the 60th day after the latest of the close of the plan year in which
(1) occurs the date on which the participant attains the earlier of age 65 or the normal retirement age specified under the plan,
(2) occurs the 10th anniversary of the year in which the participant commenced participation in the plan, or
*621 (3) the participant terminates his service with the employer.
* * * * * *
(d)(1) Each pension plan shall provide that benefits provided under the plan may not be assigned or alienated.
29 U.S.C. § 1056(a), (d)(1). Assuming this section "controls," the statute does not remove the trust status of the undisbursed funds. The creditor's argument, that upon termination of employment the assets are immediately converted to non-plan assets and are not within the purview of ERISA, does not find support in the cited statute.
Rule 56, Federal Rules of Civil Procedure, provides that summary judgment shall be granted where the pleadings, depositions, answers to interrogatories, admissions or affidavits show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Burnette v. Dow Chemical Company, 849 F.2d 1269, 1273 (10th Cir.1988). Summary judgment is appropriate when a court can conclude that no reasonable juror could find for the non-moving party on the basis of the evidence presented in the motion and response. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2511-12, 91 L.Ed.2d 202 (1986). As the Supreme Court has made clear, "summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'" Celotex, 477 U.S. at 327, 106 S.Ct. at 2555.
After the movant has made a properly supported summary judgment motion, "the nonmovant [has] the burden of setting forth specific facts showing the existence of a genuine issue of fact for trial." Anderson, 477 U.S. at 250, 106 S.Ct. at 2511.
In the instant case, the debtors have submitted an affidavit from the appointed representative of the Employee Benefits Committee governing administration of the plan at issue in this case. The affidavit avers that the plan in which the debtor husband holds an interest is ERISA qualified and that the plan has the requisite anti-alienation provision. The creditor has offered no evidence in rebuttal of this testimony. Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. (The nonmovant may not rely on the allegations or denials in its pleadings to establish a genuine issue of fact, but must come forward with an affirmative showing of evidence). Inasmuch as such property interests may be excluded, under the Bankruptcy Code, from property of the estate, Patterson v. Shumate, 504 U.S. ___, 112 S.Ct. 2242, 119 L.Ed.2d 519 the debtors are entitled to a ruling from the Court as a matter of law that his interest in the plan benefits are not property of the estate.[3] Accordingly, it is
ORDERED that the debtors' Motion for Summary Judgment, filed on December 28, 1994, is GRANTED. The objection by the creditor Warehouse Paint to the debtor's exemption in the Entergy Corporation plan benefits is overruled. Trial of the remaining issue regarding the debtor's claimed exemption in tools will be set by separate notice.
IT IS SO ORDERED.
NOTES
[1] Although the instant objection appears to seek turnover of the funds held in the pension plan, there is no motion for turnover before the Court. Only the Chapter 7 trustee may sue for turnover of estate assets; the creditor has no standing to do so. See Leird Church Furniture Manufacturing Company v. Union National Bank of Little Rock (In re Leird Church Furniture Manufacturing Company), 61 B.R. 444, 446 (Bankr.E.D.Ark. 1986).
[2] It is possible that some of the creditor's confusion arises from the fact that the debtors claim the property as exempt despite the fact that it is not property of the estate. This procedure is due, in part, | {
"pile_set_name": "FreeLaw"
} |
Slip Op. 18-116
UNITED STATES COURT OF INTERNATIONAL TRADE
JINXIANG HUAMENG IMP & EXP CO.,
LTD. and CS FARMING PRODUCTS,
INC.,
Plaintiffs,
v.
UNITED STATES,
Defendant,
Before: Jennifer Choe-Groves, Judge
and
Court No. 16-00243
HARMONI INTERNATIONAL SPICE,
INC., ZHENGZHOU HARMONI SPICE
CO., LTD., FRESH GARLIC
PRODUCERS ASSOCIATION,
CHRISTOPHER RANCH, L.L.C., THE
GARLIC COMPANY, VALLEY
GARLIC, and VESSEY AND COMPANY,
INC.,
Defendant-Intervenors.
OPINION AND ORDER
[Remanding for the U.S. Department of Commerce to redetermine whether Plaintiffs’ sale
subject to the new shipper review of fresh garlic from the People’s Republic of China was bona
fide.]
Dated: September 10, 2018
John J. Kenkel, Alexandra H. Salzman, Gregory S. Menegaz, and J. Kevin Horgan, deKieffer &
Horgan, of Washington, D.C., for Plaintiffs Jinxiang Huameng Imp & Exp Co., Ltd. and CS
Farming Products, Inc. With them on the brief was Judith L. Holdsworth.
Meen Geu Oh, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department
of Justice, of Washington, D.C., for Defendant United States. With her on the brief were Chad
Court No. 16-00243 Page 2
A. Readler, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Reginald T.
Blades, Jr., Assistant Director. Of counsel on the brief was Emma T. Hunter, Attorney, Office of
Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce.
Michael J. Coursey, John M. Herrmann, II, Joshua R. Morey, and Heather N. Doherty, Kelley
Drye & Warren LLP, of Washington, D.C., for Defendant-Intervenors Fresh Garlic Producers
Association, Christopher Ranch, L.L.C., The Garlic Company, Valley Garlic, and Vessey and
Company, Inc.
Bruce M. Mitchell, Ned H. Marshak, and Andrew T. Schutz, Grunfeld Desiderio Lebowitz
Silverman & Klestadt LLP, of New York, N.Y., for Defendant-Intervenors Harmoni
International Spice, Inc. and Zhengzhou Harmoni Spice Co., Ltd.
Choe-Groves, Judge: This case involves a new shipper review of imported fresh garlic
from the People’s Republic of China (“China”). Plaintiffs Jinxiang Huameng Imp & Exp Co.,
Ltd. (“Huameng”) and CS Farming Products, Inc. bring this action contesting the rescission of a
new shipper review, in which the U.S. Department of Commerce (“Commerce” or
“Department”) found that Huameng’s single sale of fresh garlic was not bona fide. See Fresh
Garlic From the People’s Republic of China, 81 Fed. Reg. 73,378 (Dep’t Commerce Oct. 25,
2016) (final rescission of the semiannual antidumping duty new shipper review of Jinxiang
Huameng Imp & Exp Co., Ltd.) (“Huameng Rescission”); see also Issues and Decision
Memorandum for the Final Rescission of Antidumping Duty Semiannual New Shipper Review
on Fresh Garlic from the People's Republic of China: Jinxiang Huameng Imp & Exp Co., Ltd.,
A-570-831, (Oct. 14, 2016), available at https://enforcement.trade.gov/frn/summary/prc/2016-
25675-1.pdf (last visited Sept. 5, 2018) (“Final IDM”).
This matter is before the court on Plaintiffs’ Rule 56.2 motion for judgment on the
agency record challenging the final results of the Department of Commerce’s rescission of a new
shipper review. See Pls. Jinxiang Huameng Imp & Exp Co., Ltd & CS Farming Products, Inc.’s
Court No. 16-00243 Page 3
Rule 56.2 Mot. J. Agency R., Oct. 16, 2017, ECF No. 60; see also Pls. Jinxiang Huameng Imp &
Exp Co., Ltd. & CS Farming Products, Inc. Mem. Supp. Mot. J. Agency R., Oct. 16, 2017, ECF
No. 60-2 (“Pl. Mem.”); Pls. Jinxiang Huameng Imp & Exp Co., Ltd. and CS Farming Products,
Inc.’s Reply Def.’s Mem. Opp’n Pls.’ Rule 56.2 Mot. J. Agency R., Feb. 26, 2018, ECF No. 83.
Defendant United States urges the court to uphold Commerce’s decision. See Def.’s Mem.
Opp’n Pls.’ Mot. J. Agency R., Jan. 12, 2018, ECF No. 80 (“Def. Resp.”). The Fresh Garlic
Producers Association, Christopher Ranch, L.L.C., The Garlic Company, Valley Garlic, and
Vessey and Company, Inc. (collectively, “Petitioners”) oppose Plaintiffs’ motion. See Def.-
Intervenors’ Resp. Pls.’ Mot., Dec. 22, 2017, ECF No. 75 (“Pet. Resp.”). Harmoni International
Spice Inc. and Zhenghou Harmoni Spice Co., Ltd. (collectively, “Harmoni”) support the
rescission. See Def.-Intervenor Harmoni’s Resp. Pls.’ Mot., Dec. 22, 2017, ECF No. 68. The
Parties requested oral argument, but were unable to schedule a mutually convenient hearing date.
The court did not hold an oral argument and is making its decision based on the briefs submitted
by the Parties.
PROCEDURAL HISTORY
Commerce published an antidumping duty order regarding fresh garlic from the People’s
Republic of China on November 16, 1994. See Fresh Garlic From the People’s Republic of
China, 59 Fed. Reg. 59,209 (Dep’t Commerce Nov. 16, 1994) (antidumping duty order). The
order resulted in the imposition of antidumping duties on entries of fresh garlic from China. Id.
at 59,210.
Huameng, an exporter and producer of fresh garlic, was established on November 11,
2014. Bona Fide Nature of the Sale in the Antidumping Duty New Shipper Review of the Fresh
Court No. 16-00243 Page 4
Garlic from the People’s Republic of China (PRC): Jinxiang Huameng Imp & Exp Co., Ltd. at 3,
PD 126, bar code 3469888-01 (May 17, 2016) (“Bona Fide Memo”). As a company formed
after the commencement of the eighteenth administrative review of fresh garlic, Huameng
requested a new shipper review based on a single sale of single-clove garlic that it produced and
exported, and Commerce initiated a new shipper review for the period from November 1, 2014
to April 30, 2015. See Fresh Garlic from the People’s Republic of China, 80 Fed. Reg. 43,062,
43,062–63 (Dep’t Commerce July 21, 2015) (initiation of antidumping duty new shipper review;
2014–2015). The Department issued initial and supplemental questionnaires, to which Huameng
responded in a timely manner. See Decision Memorandum for Preliminary Results of
Antidumping Duty New Shipper Review of Fresh Garlic from the People’s Republic of China:
Jinxiang Huameng Imp & Exp Co., Ltd. at 2, A-570-831, (May 17, 2016), available at
https://enforcement.trade.gov/frn/summary/prc/2016-12336-1.pdf (last visited Sept. 5, 2018)
(“PDM”); Pl. Mem. 37. Commerce did not ask follow-up questions related to its bona fide
determination. See Pl. Mem. 23. From November 17, 2015 to May 6, 2016, Commerce received
comments from interested parties, including Harmoni. See PDM at 2. Commerce issued a
Decision Memorandum regarding the bona fide nature of the sale on May 17, 2016. See Bona
Fide Memo. Harmoni, a participant in an ongoing administrative review of the industry, filed a
rebuttal and allegations of fraud against Huameng. See Final IDM at 2. Petitioners filed rebuttal
comments. See id. Responding to Harmoni’ | {
"pile_set_name": "FreeLaw"
} |
462 F.2d 430
UNITED STATES of America, Plaintiff-Appellee,v.William O. PARTEN and Lewis Lynn Whitmire, Defendants-Appellants.
No. 71-3201 Summary Calendar.*
United States Court of Appeals,
Fifth Circuit.
June 9, 1972.Rehearing and Rehearing En Banc Denied July 19, 1972.
Lee A. Chagra, El Paso, Tex., for defendants-appellants.
Seagal V. Wheatley, William S. Sessions, U. S. Attys., Wayne F. Speck, Joel D. Conant, Asst. U. S. Attys., San Antonio, Tex., for plaintiff-appellee.
Before BELL, DYER and CLARK, Circuit Judges.
DYER, Circuit Judge:
1
This is an appeal from a judgment entered upon a jury conviction of each defendant for knowingly and willfully making and using a false writing and document in violation of 18 U.S.C.A. Sec. 1001. We affirm.
2
The defendants arrived at San Antonio, Texas, aboard a flight from Mexico. Parten used the name William Owen, and Whitmire used the name John David Sharrard on their respective Customs Declarations and both responded in the affirmative when asked if the names used were theirs. The fictitious names were used by the defendants on their airlines passenger tickets and notarized affidavits of residency. Parten had a Florida driver's license in the name of Owens, and Whitmire had an identification card, Social Security card and a pawn ticket in the name of Sharrard.
3
At the time of their arrest the defendants were on probation from a six months' suspended sentence entered upon a misdemeanor conviction in the State of Utah, involving 130 pounds of marihuana. Parten realized that if he went through Customs in San Antonio he would avoid Customs in El Paso where the inspectors knew him.
4
The defendants first contend that the Government's evidence failed to show that their actions were within the purview of 18 U.S.C.A. Sec. 1001. They argue that Customs had no right or power to require defendants to execute form 6059-B absent a purchase in Mexico of over $100.00 of merchandise. Furthermore, they allege that the form was used as a convenience in identifying people and this was not material to Customs. We disagree.
5
It is abundantly clear that the intent of the defendants was to deceive the Customs Service at the border. The defendants did not claim any privilege against placing their names on the Customs declaration forms. They voluntarily did so. But this is no defense to a violation of Sec. 1001. Poonian v. United States, 9 Cir. 1961, 294 F.2d 74. Moreover, their reliance upon the premise which they construct, that Customs should not have inquired of their names, ergo, their false statements were made with impunity, is unfounded for "it cannot be thought that as a general principle of our law a citizen has a privilege to answer fraudulently a question that the Government should not have asked. Our legal system provides methods for challenging the Government's right to ask questions-lying is not one of them. A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood." Bryson v. United States, 1969, 396 U.S. 64, 72, 90 S.Ct. 355, 360, 24 L.Ed.2d 264.
6
We are equally unimpressed with defendants' argument that the declaration was a mere convenience. While U.S. Customs Form 6059-B (signed by the defendants) states on its face that a person may make an oral declaration if foreign purchases were less than $100, every passenger is, nevertheless, asked to sign the declaration not only as a duty form but also for the purpose of identifying the incoming passenger. Customs uses the form as a first line defense to keep contraband and narcotics from entering the United States by identifying suspected or wanted individuals. Since it is impossible to thoroughly search everyone, Customs maintains a wanted list and utilizes a computer system to identify possible suspects. In this case, the computer gave a negative response when the fictitious names of the defendants were fed into it.
7
The defendants next contend that their conduct, however willful, that is, done deliberately and with knowledge, was not material and, since materiality is an essential element of the offense charged, Rolland v. United States, 5 Cir. 1953, 200 F.2d 678, they could not be found guilty. They argue that but for the marihuana found in their luggage it was probable that their true names, had they been known by Customs, would not have been put through the computer. We are unwilling to decide the case on this conjectural possibility. The fact is that the computer was used after the true names of the defendants were learned from interrogation, following the discovery of marihuana, and a "hit" was made on Parten's name. The fact that on this basis alone the defendants could not have been arrested on the spot is of little importance. What may further have been developed by Customs with such knowledge evidences the materiality of the falsifications of defendants' names submitted to Customs.
8
The defendants raise in this Court for the first time a challenge to the validity of the indictments on the ground they fail to allege facts showing in what manner defendants' actions were material to Customs in enforcing the laws of the United States. Suffice it to say that the indictments are sufficient to place the defendants on notice of the charges which they must defend and to plead jeopardy after their conviction should they again be charged with the same or similar offense. See United States v. Bearden, 5 Cir. 1970, 423 F.2d 805, cert. denied 400 U.S. 836, 91 S.Ct. 73, 27 L.Ed.2d 68; James v. United States, 5 Cir. 1939, 416 F.2d 467, cert. denied 397 U.S. 907, 90 S.Ct. 902, 25 L. Ed.2d 87.
9
Finally, it is asserted that it was error for the district court to admit evidence of a prior conviction of both defendants for the possession of 135 pounds of marihuana. Pointing out that "willful," in the statute under which they were prosecuted, means no more than that the forbidden act must be done deliberately and with knowledge but does not require evil intent, McBride v. United States, 5 Cir. 1955, 225 F.2d 249, defendants argue that the convictions could not be introduced as bearing on their intent or motives. We disagree. The prior conviction clearly was admissible to prove the defendants' motive in presenting the false identity and to prove that it was done deliberately and with knowledge. United States v. Dryden, 5 Cir. 1970, 423 F.2d 1175.
10
The other issues raised by the defendants are devoid of merit.
11
Affirmed.
12
ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
PER CURIAM:
13
The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied.
*
Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I
| {
"pile_set_name": "FreeLaw"
} |
480 F.2d 631
83 L.R.R.M. (BNA) 2735, 71 Lab.Cas. P 13,780
INTER-POLYMER INDUSTRIES, INC., Petitioner,v.NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 72-1835.
United States Court of Appeals,Ninth Circuit.
June 15, 1973.
Richard L. Lotts (argued), of Sheppard, Mullin, Richter & Hampton, Los Angeles, Cal., for petitioner.
William Wachter (argued), Peter G. Nash, Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Douglas S. McDowell, NLRB, Washington, D. C.; Wilford Johanson, Director, Region 21, Douglas Olins, Region 21, NLRB, Los Angeles, Cal., for respondent.
Before BROWNING and GOODWIN, Circuit Judges, and JAMESON,* District Judge.
ALFRED T. GOODWIN, Circuit Judge:
1
An employer petitions to set aside an order of the National Labor Relations Board to reinstate a discharged employee.
2
The Southern California Printing Specialties and Paper Products Union District Council No. 2, International Printing Pressmen and Assistants' Union of North America, A.F.L.-C.I.O., filed charges that Inter-Polymer Industries, Inc., a Los Angeles manufacturer of plastic bags, violated Sec. 8(a)(1), (3), and (5) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(1), (3), and (5) (1970), by discharging Duane Osmus, an employee, for his union activities and by refusing to bargain in good faith with the Union.
3
After extensive hearings the Board found Inter-Polymer guilty of unfair labor practices in refusing to reinstate Osmus, in refusing to bargain in good faith, and in threatening employees for engaging in union activities. The Board ordered Inter-Polymer to cease and desist from designated unfair labor practices, to reinstate Osmus with back pay, and to post compliance notices. The Board's decision and order are reported as 196 NLRB No. 101 (1970).
4
Inter-Polymer's principal contention is that its refusal to reinstate Osmus was justified. The sharply contested issue is whether the NLRB was correct in deciding that Osmus was punished for union activity.
5
In March 1970, Inter-Polymer hired Osmus to perform machinist's work and maintenance tasks. By August 1970, the volume of machinist's work had declined, and Osmus was assigned to a maintenance project requiring overtime work. Osmus asked to be reassigned to machinist work. When his request was denied, he quit. A few days after quitting Osmus indicated his desire to return to work. Inter-Polymer agreed to reinstate him if he would perform ordinary maintenance tasks as well as machinist's work.
6
In October, 1970, the Union became the collective bargaining representative for the plant. Osmus, a member of the employee negotiating committee, wrote a proposal on the assignment of maintenance and machinist work. Osmus's supervisor told him that, because of his membership on the Union negotiating committee, Osmus was "on the company's shit list."
7
In November 1970, Osmus was laid off. Insufficient work in the maintenance department was given as the reason. In December Inter-Polymer recalled Osmus, but told him that he could not expect the bulk of his work to be machinist's work. When Osmus reported to work, he complained about his work assignment. He telephoned the Union's administrative assistant, who suggested he accept any work assignment prescribed, but that he inform Inter-Polymer that he would work only "under protest." Osmus took this advice, and his employers demanded an explanation of "under protest." When Osmus did not explain what he meant, the president of Inter-Polymer warned him not to use "union tactics," and told him he could return to work only if he did not require preconditions. Osmus left the plant, and his union filed the charges.
8
The Trial Examiner and the Board determined that Osmus was laid off in November for bona fide economic reasons. They also found that Osmus, in saying that he would work "under protest," was stating that he was willing to accept general maintenance assignments, but that he would do so unwillingly and with full intent to use the Union to win an assignment to the machine shop, working exclusively as a machinist. However, where the Trial Examiner found that Inter-Polymer had a right to refuse to rehire Osmus on Osmus's conditional terms, the Board concluded otherwise. The Board held that Inter-Polymer violated Section 8(a)(1) of the Act in refusing to reinstate Osmus.
9
While the evidence tends to cut both ways, substantial evidence supports the Board's finding that Inter-Polymer denied Osmus re-employment because he had sought the assistance of his bargaining representative in a dispute with management over work assignments. The Board's order thus vindicates the employee's right to utilize his union in a controversy concerning his work. See, e. g., NLRB v. Victor Otlans Roofing Co., 445 F.2d 299, 300 (9th Cir. 1971).
10
Inter-Polymer also contends that the complaint should have been dismissed because an agent of the NLRB interviewed Inter-Polymer's labor consultant and negotiator, without obtaining the permission of counsel.
11
As in Singer Co. v. NLRB, 429 F.2d 172, 178 (8th Cir. 1970), we need not reach the question whether company counsel must be afforded an opportunity to be present during all investigative interviews of company personnel. Here the Board found that its agent sought and obtained company permission to interview the labor consultant, and that the agent did not exceed the terms of that permission. The Board determined that in the course of being questioned on permissible subjects, the interviewee volunteered the evidence which Inter-Polymer later sought to suppress. We cannot say that the Board's findings in this regard were without a substantial basis in the record.
12
Inter-Polymer's last contention is that the compliance notice which the Board's order requires it to post should be modified to inform the employees of their statutory right to file a decertification petition. Citing NLRB v. Copps Corp., 458 F.2d 1227 (7th Cir. 1972), and NLRB v. Priced-Less Discount Foods, Inc., 407 F.2d 1325 (6th Cir. 1969), Inter-Polymer maintains that decertification notice is necessary, because, inter alia, the employees have signed an anti-union petition. In making this contention, the company overlooks the fact that the union here, unlike those in Copps and Priced-Less, had won a Board election and was certified as the employees' bargaining representative. Absent "unusual circumstances," an employer must bargain with the certified representative of the employees during the "certification year" even if the union has lost its majority status through no fault of the employer. E. g., Brooks v. NLRB, 348 U.S. 96, 103-104, 75 S.Ct. 176, 99 L.Ed. 125 (1954); NLRB v. Keystone Valve Corp., 449 F.2d 1253, 1256-1259 (5th Cir. 1971); NLRB v. Holly-General Co., 305 F.2d 670, 675 (9th Cir. 1962).
13
The petition to set aside the order of the NLRB is denied.
*
The Honorable William J. Jameson, United States District Judge for the District of Montana, sitting by designation
| {
"pile_set_name": "FreeLaw"
} |
92 U.S. 176 (____)
BAKER ET AL., ASSIGNEES,
v.
WHITE.
Supreme Court of United States.
Mr. Charles E. Perkins for the plaintiff in error.
Mr. A.P. Hyde, contra.
MR. JUSTICE MILLER delivered the opinion of the court.
The Odorless Rubber Company, being in an embarrassed condition, undertook to relieve itself by obtaining additional subscriptions to its capital stock. It was conceived, that, in order to do this, it was necessary that those holding the existing stock should submit to a reduction of its par value, as it was not really worth par at that time; and new subscribers could not be expected to take a stock which they knew to be below the value they were to pay for it. Accordingly, on the 10th June, 1872, at a meeting of the stockholders, "on motion of S.L. Warner, it was voted, that whereas the capital stock of this company now issued, and the assets of the same, have become impaired to the extent of thirty per cent on the whole amount of said stock, to wit, the sum of $72,000.50, therefore voted, that stock to the amount of $72,112.50 be called in and cancelled upon the books of this company."
At a former meeting it had been resolved that the capital stock of the company be increased to $200,000, or eight thousand shares.
The defendant, after these resolutions had been adopted, signed the following instrument, and set opposite his name two hundred and forty, as the number of new shares for which he subscribed:
"We, the undersigned, hereby agree to take the number of shares of the capital stock of the Odorless Rubber Company placed opposite our respective names, and pay for the same as follows; to wit, $6.25 per share whenever cash subscriptions to the amount of $118,000 shall have been made, and the balance in equal monthly instalments of ten per cent each from the date of June 1, A.D. 1872. Said stock *177 to be fully paid whenever eighty-five per cent of the par value shall have been paid into the treasury of the company; it being understood that none of said subscriptions shall be valid or obligatory until at least said amount of $118,000 of stock shall have been subscribed as aforesaid, and that thirty per cent deduction is made on the old stock of this company, as per vote of stockholders June 10, 1872.
"Dated at Middletown, this tenth day of June, 1872."
He was elected a director, and acted as such for a short time, and paid his instalments regularly until he had paid $2,700. He then refused to pay any more; and, the corporation having been adjudged bankrupt, the plaintiffs, as assignees, brought the present suit to recover the unpaid instalments, amounting to $3,300.
Two defences were relied on by defendant: 1. That one of the conditions on which he agreed to pay was that thirty per cent of the old stock was to be deducted or extinguished, and this had not been done. 2. That the subscriptions had been obtained by fraudulent representations as to the condition of the company; that the whole proceeding was a fraudulent design to relieve the old stockholders of a broken corporation at the expense of the new subscribers; and that, as soon as he had learned enough of the condition of the company to become aware of this fraud, he abandoned the concern, and repudiated the contract.
This suit was brought in the District Court; and the judge of that court refused to charge the jury, when requested, that in the true construction of the subscription-paper, above quoted in full, the subscription was not obligatory until the thirty per cent reduction of old stock had been made, and also rejected evidence of the fraud in obtaining the defendant's subscription.
On a writ of error to the Circuit Court, where these matters were shown by a bill of exceptions taken in the District Court, the judgment of that court was reversed.
The Circuit Court rested its judgment on the construction of the subscription-paper; and as that is sufficient to dispose of the case, and as we concur in the view taken by that court, we shall only consider that question.
The counsel for plaintiffs in error construed the paper as if it read thus:
*178 "It being understood that none of the subscriptions shall be valid or obligatory until at least said amount of $118,000 of stock shall have been subscribed as aforesaid, and it being also understood that thirty per cent deduction is made on the old stock of this company, as per vote of stockholders June 10, 1872.
"Dated Middletown, the tenth day of June, 1872."
Reading it thus, they argue that the last clause, relating to the thirty per cent deduction, is only a representation of what was understood to be an existing fact at the time it was made, and not a condition like the one as to the amount of stock to be taken, without which the subscription was not obligatory.
It is possible so to construe the language of the instrument, if the surrounding circumstances demanded it. But to one who saw the paper for the first time, and knew nothing more, it would seem a forced, and not a natural, construction. If the word "that" just before "thirty per cent" were omitted in the original, the plain grammatical meaning would be, that the subscriptions were only obligatory in case the $118,000 of stock was subscribed, and the thirty per cent of the old stock called in or deducted.
We cannot give to the use of the word "that" such force as to destroy the natural and reasonable meaning which the sentence would have without it.
But when, leaving grammatical and verbal criticism, we look to the admitted surrounding circumstances of the case, what was meant is quite clear.
The paper bears the same date as the resolution to reduce the stock. That resolution did not profess to have the effect of reducing the stock of itself, but only declared that $72,112.50 of said stock be called in, a thing to be done in future; and the bill of exceptions shows that the directors accordingly made an effort to get the stockholders to surrender and cancel stock to that amount, but failed to get it done.
When a subscriber put his name to the agreement to take new stock, the obtaining of the $118,000, on which his subscription depended for its validity, was a thing to be accomplished in the future: and so, on the tenth day of June, the date of this paper, a subscriber, looking to these two things promised, but yet to be performed, said, "I subscribe, but it is *179 upon condition that I am only to be liable when they are performed; that is, when $118,000 new stock is subscribed, and when thirty per cent of the old stock is called in and cancelled, as per resolution of the company of this date."
We are of opinion that the Circuit Court properly construed this instrument; and, as it is not proved or asserted that this stock ever was so reduced, the defendant was not liable on that contract.
But, when we come to look for the judgment of the Circuit Court which should be affirmed on these considerations, we find that there was in that court no final judgment. There exists in the record only an order reversing the judgment of the District Court. But, supposing a more formal entry to have been made, it could only be that the judgment and verdict in the District Court be set aside, and a new trial awarded.
We have so repeatedly decided that such an order as this is not a final judgment from which a writ of error lies to this court, that it needs no further discussion. Parcels v. Johnson, 20 Wall. 653; Macomb v. Commissioners of Knox County, 91 U.S. 1.
But the case was fully argued by counsel on the merits. The court, in conference, came to the conclusion (which was unanimous) indicated in this opinion; and we have concluded to let the opinion accompany the only judgment which we can render on this record.
Writ of error dismissed.
| {
"pile_set_name": "FreeLaw"
} |
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 15-0140V
Filed: June 16, 2015
Unpublished
****************************
VIRGINIA IVES, *
*
Petitioner, * Ruling on Entitlement; Concession;
v. * Influenza or Flu Vaccine; Shoulder
* Injury Related to Vaccine Administration
SECRETARY OF HEALTH * (“SIRVA”); Special Processing Unit
AND HUMAN SERVICES, * (“SPU”)
*
Respondent. *
*
****************************
Jeffrey S. Pop, Esq., Jeffrey S. Pop, Attorney at Law, Beverly Hills, CA, for petitioner.
Christine M. Becer, Esq., U.S. Department of Justice, Washington, DC for respondent.
RULING ON ENTITLEMENT1
Vowell, Chief Special Master:
On February 11, 2015, Virginia Ives filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 [the
“Vaccine Act” or “Program”]. Petitioner alleges that she suffered a shoulder injury
caused by the influenza vaccine she received on September 23, 2013. Petition at 1.
Petitioner also alleges that her injuries lasted more than six months and that she
continues to suffer the residual effects of her injury. Id., ¶ 18. The case was assigned
to the Special Processing Unit of the Office of Special Masters.
On June 15, 2015, respondent filed her Rule 4(c) report in which she
“recommends that compensation be awarded in this case.” Respondent’s Rule 4(c)
Report at 1. Specifically, respondent “has concluded that a preponderance of evidence
establishes that the injury to petitioner’s right shoulder was caused-in-fact by the
1 Because this unpublished ruling contains a reasoned explanation for the action in this case, I intend to
post it on the United States Court of Federal Claims' website, in accordance with the E-Government Act
of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501
note (2006)). In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to
redact medical or other information, the disclosure of which would constitute an unwarranted invasion of
privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such
material from public access.
2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2006).
administration of her September 24, 2013, flu vaccine, and that petitioner’s injury is not
due to factors unrelated to the administration of the flu vaccine.” Id. at 3. Furthermore,
respondent agrees that petitioner’s injury lasted for more than six months. Id.
In view of respondent’s concession and the evidence before me, I find that
petitioner is entitled to compensation.
s/Denise K. Vowell
Denise K. Vowell
Chief Special Master
2
| {
"pile_set_name": "FreeLaw"
} |
419 S.W.2d 686 (1967)
Jewel Fay BELL et al., Appellants,
v.
W. W. FORE et al., Appellees.
No. 7817.
Court of Civil Appeals of Texas, Texarkana.
September 12, 1967.
Rehearing Denied October 10, 1967.
*687 Harry Friedman, Harkness, Friedman & Kusin, Sidney Lee, Texarkana, for appellant.
Stephen Oden, Bun L. Hutchinson, Atchley, Russell, Hutchinson & Waldrop, Texarkana, Jack N. Price, Atkinson & Price, Longview, for appellee.
*688 FANNING, Justice.
This is a suit for damages for the deaths of William Payton, Jr., and John Homer Bell, and for personal injuries received by Frank T. Bransford. A take nothing judgment was rendered by the trial court. The judgment of the trial court is affirmed.
STATEMENT OF THE CASE
Bill Purdy's store is located on the south side of U. S. Highway No. 67 and about five miles west of Texarkana in Bowie County, Texas. Defendant Addie Campbell, sometimes called Addie Campbell Sharp, stopped at this store about 6:00 p. m. of Saturday, November 14, 1964, to purchase some supplies. At this time, a light rain was falling. After defendant Campbell had completed her purchases, she drove her pickup truck back onto the roadway of the highway and was proceeding in a westerly direction toward her home when a motor vehicle, being driven by defendant Marshall and pulling a trailer containing a horse, struck her motor vehicle in the rear. The trailer containing the horse thereupon overturned and came to a stop on the roadway of the highway.
Shortly thereafter, while William Payton, Jr., appellant Estella Payton's husband, and others were attempting to remove the trailer and the horse in it from the roadway, another motor vehicle being driven by W. W. Fore westward along the highway struck the trailer, and thereby William Payton, Jr., and John Homer Bell sustained personal injuries of which both died, Payton on February, 26 1965, and Bell immediately. Also injured, but not fatally, were Bill Purdy and Frank T. Bransford, who, together with Bell and Payton were also trying to remove the trailer from the roadway and thereby to "prevent a serious accident".
Thereafter, appellant Jewel Fay Bell filed suit individually and as next friend for the minor children of herself and decedent John Homer Bell against W. W. Fore and Myrtle Fore, his wife, who was riding with Fore as a passenger in the Fore motor vehicle at the time of the collision, Thomas J. Marshall, Addie Campbell Sharp, and Ed Sharp, the husband of appellee Addie Campbell Sharp, to recover damages for the wrongful death of John Homer Bell. Appellant Frank T. Bransford intervened in the suit filed by appellant Jewel Fay Bell and sought recovery of damages from the same defendants for his personal injuries.
Appellant Estella Payton and five of her adult children, such children being joined by their husbands and wives, also filed suit against Woodrow W. Fore, Myrtle Fore, and Addie Campbell Sharp, Ed Sharp, and Thomas J. Marshall seeking to recover damages for the wrongful death of William Payton, Jr.
Thereafter all plaintiffs in both suits moved for and were granted non-suits against W. W. Fore and Myrtle Fore, but the Fores continued as parties in the two suits at the instance of the defendants who sought contribution from the Fores in the event recovery should be made against them.
Since the two suits involved common questions of law and fact, they were consolidated for the trial which was to a jury. The trial judge signed a judgment for the appellees upon the jury's verdict and in accordance with the appellees' prayers. Estella Payton, Jewel Fay Bell and other plaintiffs Bell and intervenor Frank Bransford have appealed.
The verdict of the jury found Mrs. Sharp guilty of certain acts of negligence proximately causing the first collision in question, absolved the defendant Marshall from any acts of negligence proximately causing the first collision in question, found the defendant W. W. Fore guilty of several acts of negligence proximately causing the second collision and the injuries to John Homer Bell, William Payton, Jr., and Frank T. Bransford, found that the way and manner in which W. W. Fore was driving his vehicle immediately before the second collision was a new, independent and intervening cause of such second collision, found that John Homer Bell, William Payton, Jr., and *689 Frank T. Bransford assumed the risk of a dangerous condition existing upon the roadway and knew and appreciated the nature and extent of the danger attendant to assisting in the removal of the trailer from the roadway and voluntarily exposed themselves to such danger immediately before the second collision, and found that at the time of the second collision John Homer Bell, William Payton, Jr., and Frank T. Bransford were attempting to rescue W. W. Fore and his vehicle from danger, and were attempting to rescue and remove from danger the participants in the first collision.
The trial court in its judgment, after reciting the various findings of the jury, stated in part as follows:
"The verdict was duly received by the Court as the verdict of the jury and the Court having considered the verdict, in which the jury found the Defendant Thomas Jerry Marshall free from any negligence causing the first collision in question in this suit, but found the Defendant Addie Campbell Sharp guilty of certain acts of negligence proximately causing the first collision in question, but there being no finding of any act of negligence on the part of the Defendant Addie Campbell Sharp proximately causing the second collision or the injuries or damages to the Plaintiffs Bell and Plaintiffs Payton, or Intervenor Bransford, and the jury further finding the deceased Bell and deceased Payton and Intervenor Bransford guilty of assumption of risk and voluntary exposure to a known and appreciated danger immediately prior to the second collision in question, and further finding several acts of negligence on the part of the Defendant W. W. Fore proximately causing the second collision in question and that the acts of negligence on the part of W. W. Fore were a new and intervening and independent cause of the second collision which caused the injuries and damages complained of by the Plaintiffs Bell and Plaintiffs Payton and Intervenor Bransford, and also finding that immediately prior to the second collision the deceased Bell and deceased Payton and Intervenor Bransford were undertaking to rescue the Defendant W. W. Fore as well as the participants in the first collision, the Court is of the opinion that judgment should be rendered that all Plaintiffs take nothing; the Plaintiffs Bell, Payton and Intervenor Bransford should take nothing because the Court is of the opinion that the acts of negligence on the part of the Defendant Addie Campbell Sharp which contributed to cause the first collision in question were but passive acts and were not continuing active causes of the second collision in question, but the negligence of the Defendant W. W. Fore was the primary and active cause of the second collision in question, and if the Court be mistaken in this as a matter of law, then the jury has so found by its verdict and its answers to the special issues submitted; additionally, Plaintiffs Bell and Payton and the Intervenor Bransford should take nothing because the rescue doctrine does not apply as a matter of law, and the deceased Bell and deceased Payton and Intervenor Bransford voluntarily exposed themselves to the risks and danger which was known and appreciated prior to the second collision, but if the Court be mistaken and the rescue doctrine does apply, then by virtue of the specific findings of negligence on the part of those whom the deceased Bell and Payton and Intervenor Bransford were purportedly undertaking to rescue, said Plaintiffs Bell, Payton and Intervenor Bransford are barred from recovery by imputed negligence."
Appellant Estella Payton presents 79 points on appeal. Appellants Bell and appellant Bransford present 55 points on appeal. Having concluded that the trial court rendered a correct judgment we will write upon what we deem to be the controlling reasons why the judgment of the trial court should be affirmed.
*690 QUESTION OF LIABILITY OF ADDIE CAMPBELL SHARP
The trial court refused to submit requested issues of plaintiffs inquiring as to whether certain acts on the part of defendant Addie Campbell Sharp were negligence and proximate causes of the deaths of Bell and Payton and of the injuries received by Bransford. Appellants assign as error the failure of the trial court to submit such issues of negligence and proximate cause, contending that issues of fact were raised warranting the submission of such issues. Appellants also contend to the effect that the jury's finding to special issue No. 19 to the effect that the manner and way of W. W. Fore's driving was a new, independent and intervening cause of the second collision should not be allowed to stand because the undisputed evidence showed that the way and manner in which W. W. Fore was driving his motor vehicle was not a new, independent and intervening cause of the second collision, but, at most was only a concuring or cooperating cause thereof. Among the authorities cited by appellants on the concept of concurrent negligence are the following: Texas Power and Light Co. v. Holder, 385 S.W.2d 873 (Tex.Civ.App. 1964, Affirmed per curiam 393 S.W.2d 821); McAfee v. Travis Gas Corp., 137 Tex. 314, 153 S.W.2d 442 (1941); Reeves v. Tittle, 129 S.W.2d 364 (Tex.Civ.App. 1939, writ ref'd); Williams | {
"pile_set_name": "FreeLaw"
} |
224 N.W.2d 770 (1975)
192 Neb. 831
Walter J. MEYER et al., Appellees, Cross-Appellants,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a corporation, Appellant, Cross-Appellee, Impleaded with Raymond W. Foreman et al., Appellees, Cross-Appellees and Roscoe Hill Hatchery, Inc., et al., Appellees, Cross-Appellees.
No. 39492.
Supreme Court of Nebraska.
January 2, 1975.
*771 Ray C. Simmons, Fremont, for appellant, cross-appellee.
Barlow, Watson & Johnson, Lincoln, for Walter J. Meyer and others.
Mattson, Ricketts, Davies, Stewart & Calkins, Lincoln, for Raymond W. Foreman and others.
Knudsen, Berkheimer, Endacott & Beam, Lincoln, for Roscoe Hill Hatchery, Inc.
Heard before WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.
SPENCER, Justice.
Appellant, State Farm Mutual Automobile Insurance Company, appeals from a declaratory judgment finding that appellee Walter J. Meyer was an employee of his son, appellee Warren Meyer, State Farm's insured, under a work arrangement agreement. We reverse.
The accident which gave rise to this litigation arose during the operation of a farm tractor on a highway in Seward County, Nebraska. The issue presented is whether or not at the time of that accident Walter J. Meyer was an employee of his son Warren Meyer within the terms of the following provision of a State Farm policy: "Insuredmeans * * * (5) under cover AF, any employee of an insured with respect to agricultural vehicles and implements while engaged in his employment by an insured."
The father and son, along with two neighbors, Eicher and Schmidt, had been involved for several years in what has been characterized as a "work exchange" program in which each of the parties aided with particular tasks on the farms of each of the others. Warren was putting up hay on his own land with the assistance of his father and two neighbors. Warren supplied a tractor, rake, and baler. Eicher brought a tractor and started raking the hay. Warren followed with his baler. When Walter and Schmidt arrived, they were informed that another tractor and trailer were required in addition to the trailer in the field. At Warren's suggestion Walter and Schmidt left in Schmidt's car to get Walter's tractor and Schmidt's trailer. After attaching the trailer to the tractor, Schmidt *772 returned to the hay field in his car and Walter started back pulling the trailer with the tractor.
On the trip to Warren's hay field, and before he reached it, Walter was involved in an accident in which Raymond W. Foreman was injured. Foreman brought an action against Walter. Walter and Warren each carried liability policies of $25,000 with State Farm. Coverage under Walter's policy was admitted. This action was brought to determine coverage for the father, Walter, under Warren's policy.
Warren testified that when the three others came over to his farm, he decided what equipment the other three would bring and when they would start baling hay. He also decided where to put the hay. It was the practice that whoever owned the hay to be cut would be the person to give the orders, and it was the understanding among the parties that the owner of the land gave the directions.
Schmidt testified that the four of them never discussed the particular legal relation between them in exchanging labor operations. They never discussed whether they were employers or employees. They just helped each other out and didn't discuss anything along those lines. They were neighbors and they had to get along and needed each other's help. It was a neighborly and Christianly thing to do, and that was at least part of the basis of their exchange of work among themselves. When he worked on the farms of the other three in these exchange of labor operations, he did not consider himself their employee, and when they worked on his farm he did not consider himself their employer. When he went over and helped Warren with his haying operation he expected Warren to come back later and help him with his. That was the agreement. He traded his services for Warren's services.
The parties to this appeal agree that this case presents one of first impression in Nebraska. Appellant asserts it is a case of first impression nationally. Appellees, however, claim that similar facts have been found to support a finding of an employer-employee relationship on two occasions in Iowa: Ganzhorn v. Reep (1943), 234 Iowa 495, 12 N.W.2d 154, and Erickson v. Erickson (1959), 250 Iowa 491, 94 N.W.2d 728.
Ganzhorn v. Reep, supra, involved an action between two neighboring farmers for injuries resulting from an automobile accident. Defendant had called plaintiff and asked him for assistance in fixing a broken pump. After working for a time, defendant determined it was necessary to go to town for additional equipment. Defendant asked plaintiff to ride with him since nothing more could be done until he returned. On the ride to town the accident occurred. The record indicates that for several years plaintiff and defendant had exchanged work with each other. No money ever changed hands and no accounting of time took place. The trial court submitted the question of master-servant relationship to the jury and the jury returned a verdict for the plaintiff, which was affirmed.
In Erickson v. Erickson, supra, the plaintiff and defendant were brothers. They had exchanged work over the years, had kept accounts of time spent, and made cash payments to settle any imbalance. Plaintiff had been called to do chores for defendant while he was away. In performing those chores plaintiff was injured while working with certain machinery owned by defendant. The trial court, sitting without a jury, found an employer-employee relationship existed. The judgment for the plaintiff was affirmed.
In Patty v. State Farm Mut. Auto. Ins. Co. (1955), 228 F.2d 363, the United States Court of Appeals for the Sixth Circuit held the practice of swapping work does not as a matter of law constitute employment. A judgment for the insurer was reversed to determine whether the agreement of the insured to pay for new parts for the mower was by way of compensation to the plaintiff, or to make the mower fit for operation.
*773 St. Aubyn v. Thogmartin (1970), 206 Kan. 62, 476 P.2d 248, involved the definition of "employee" within an employee-exclusionary clause of an insurance policy. The driver of a newspaper delivery truck brought a third-party action against the insurer for a declaratory judgment, alleging that the insurer was obligated to defend him and pay within policy limits any judgment obtained against him by a newsboy who was injured in a collision while throwing newspapers from the truck. The Kansas Supreme Court determined that the driver, who was an old friend of the truck owner, had volunteered to drive the truck for the owner without any agreement for compensation, while the owner went on a hunting trip. The court held the subsequent payment of $5 was a gratuity and sustained a finding that the driver was not an employee within the exclusionary clause of the owner's policy.
In Bean v. Gibbens (1954), 175 Kan. 639, 265 P.2d 1023, a neighbor boy was killed while guiding insured's truck which was being towed into town. Nothing was said about pay, and no pay was offered. The Kansas Supreme Court held the boy was not an employee within a clause of a liability policy excluding coverage of employees of the insured.
Kentucky Farm Bureau Mut. Ins. Co. v. Snell (Ky.App., 1958), 319 S.W.2d 462, involved a member of a group of neighbors who voluntarily helped each other in harvesting their tobacco crops, keeping track of the hours worked, and agreeing to make up any difference in amount of work performed by payment of an agreed amount. The trial court submitted to the jury the question of control of the neighbor while working. The jury found against the plaintiff. The Kentucky Court of Appeals affirmed, holding the injured man was not an employee of the neighbor owning the truck upon which the accident occurred.
Usually any labor supplied by a father to a son is presumed to be gratuitous. See cases collected on this point in Annotation, 7 A.L.R.2d at p. 88. The presumption of gratuity, however, with respect to the services of a parent is a rebuttable one. It may be overcome by proof of an express contract regarding compensation or of such facts and circumstances as show an understanding of the parties that payment was to be made. In the absence of such proof, recovery will be denied. Houser v. Houser (1965), 178 Neb. 401, 133 N.W.2d 618.
Warren could not recall any cash payments with any of the other three parties when the four exchanged labor. If somebody felt he was on the short end at the close of the year, there would be a settlement of some kind. This was usually balanced, however, by supplying more labor and machinery. The exchange of work was apparently taken for granted, as the record does not reveal any specific promises regarding it.
Warren testified that he and his father, in addition to the trading of labor with the other two men in haying operations, traded other labor and equipment between themselves. Much of their equipment was owned jointly. They exchanged considerable labor and equipment at harvest time and generally quite a bit at ground preparation time. Warren was farming about 400 acres, his father about | {
"pile_set_name": "FreeLaw"
} |
Nevada Judiciary
Nevada Appellate Courts | Administrative Office | Law Library | State of Nevada | Contact
Mindful Images Photography
Home
Courts
All Court Locations (Find a Court)
Nevada Appellate Courts
District Courts
Justice Courts
Municipal Courts
Self Help
Centers
Clark County Civil Law Self-Help Center
Clark County Family Law Self-Help Center
Nevada Law Help
Washoe County Family Law Self-Help Center
Washoe County Legal Services
Resources
Nevada Legal Resources
Native American Legal Resources
Federal Legal Resources
Resources Outside of Nevada
Appellate Pro Bono Program
Forms and Documents
Nevada Self-Help Website
Court Document Preparation
Law Library
Legal Resources
Library Resources
Hein Online
LexisNexis
Nevada Law Library CD-ROM
Westlaw
Online Resources
Nevada Legislative Histories
Nevada Session Laws
Nevada Appellate Court Opinions
Administrative Docket Orders
Legal Community
Bar Assocations
Court Rules
Judicial Education Resources
Court Resources
Nevada Appellate Courts Clerk of Court
District Court Clerks of Court
Judicial Dates of Office
Judicial Directory
Programs and Services
Judicial Programs
Court Improvement Program
Court Interpreter Program
FMP Mediator Program
Guardianship Compliance Office
Judicial Council
Judicial Education
Senior Justice/Judge Program
FMP Mediator Program
Settlement Program
Specialty Courts
Commissions and Committees
Access to Justice Commission
Blue Ribbon for Kids Commission
Commission on Statewide Rules of Criminal Procedure
Commission to Study Evidence-Based Pretrial Release
Committee to Study Child Custody Reform
Guardianship Commission
Indigent Defense Commission
Judicial Selection Commission
Juvenile Justice Reform
Preservation, Access, and Sealing of Court Records Commission
Nevada Rules of Civil Procedure Commission
About the Judiciary
The Nevada Judiciary
Nevada Supreme Court
Nevada Court of Appeals
District Courts
Justice Courts
Municipal Courts
Annual Report
Appellate Court History
Nevada Judicial History Database
State of the Judiciary
Codes of Conduct
Appellate Court News
Media Resources
Frequently Asked Questions
E-Payments
Judicial Education
Fraud Hotline
How Do I?
File a Document
Find an Attorney
Find a Case
Find a Court
Pay a Traffic Ticket
Represent Myself
Research Legal Issues
Work for the Judiciary
Frequently Asked Questions
Quick Links
Court Rules
Court Statistics
Documents and Forms
Interpretive Services
Judicial Directory
Jury Service
Law Library
Nevada Self-Help Website
Programs and Services
Find a Court
Events Calendar
Public Meetings
Indigent Defense Commission
7/26/2018 1:30:00 PM
Specialty Court Funding Committee
7/27/2018 1:00:00 PM
Permanent Guardianship Commission Meeting
7/30/2018 9:30:00 AM
All Public Meetings
Educational Events
Nevada Specialty Court 2018 Conference
11/7/2018 12:00 AM
Nevada Specialty Court 2018 Conference
11/8/2018 12:00 AM
Nevada Specialty Court 2018 Conference
11/9/2018 12:00 AM
All Educational Events
News and Media
RFQ 2018-01 Judicial Branch Statewide MAS Audits - Qualifying Firms
6/26/2018 3:34:16 PM
Funding of the Nevada Judiciary
6/4/2018 2:17:58 PM
Funding of the Nevada Judiciary
6/4/2018 2:17:58 PM
More News and Media
Connect with us
email
rss
Site Search
Privacy Policy | Back to Top ↑
| {
"pile_set_name": "FreeLaw"
} |
94 P.3d 959 (2004)
151 Wash.2d 1024-1031
SCHULTZ
v.
STATE, DEPT. OF SOCIAL AND HEALTH SERVICES
No. 74632-0.
Supreme Court of Washington, Department I.
June 2, 2004.
Disposition of petition for review denied.
| {
"pile_set_name": "FreeLaw"
} |
575 F.2d 1248
11 ERC 2068
PLAZA BANK OF WEST PORT, ST. LOUIS, MISSOURI, Petitioner,v.BOARD OF GOVERNORS OF the FEDERAL RESERVE SYSTEM, Respondent,andManchester Financial Corporation, St. Louis, and ManchesterBank West County, Maryland Heights, Missouri,Respondents-Intervenors.
No. 77-1730.
United States Court of Appeals,Eighth Circuit.
Submitted March 15, 1978.Decided May 15, 1978.
Jerome Wallach, Wallach & McAvoy, Gravois, Fenton, Mo., for petitioner.
Thomas G. Wilson, Atty. App. Section, Civ. Div., Dept. of Justice, Washington, D. C., for respondent, Board of Governors, etc.; Barbara Allen Babcock, Asst. Atty. Gen., and Ronald R. Glancz and Mark N. Mutterperl, Attys., Washington, D. C., on brief.
Thompson & Mitchell, St. Louis, Mo., for intervenor-respondent, Manchester Financial Corp., et al.; Peter A. Fanchi (argued), and David F. Ulmer, St. Louis, Mo., on brief.
Before VAN OOSTERHOUT, Senior Circuit Judge, LAY, Circuit Judge, and HANSON, Senior District Judge.*
VAN OOSTERHOUT, Senior Circuit Judge.
1
Before us is a timely petition filed by Plaza Bank of West Port, St. Louis, Missouri (Plaza Bank), for review of the order of the Board of Governors of the Federal Reserve System (hereinafter the Board), effective August 15, 1977, granting the application of Manchester Financial Corporation (MFC) to obtain prior approval of the transfer of 99.4% of the capital stock of Manchester Bank West County, Maryland Heights, Missouri (Manchester Bank West), pursuant to 12 U.S.C. § 1842, and for review of the order of the Board effective December 7, 1977, denying Plaza Bank's request for reconsideration or a stay order. The Board's order granted MFC's application for prior approval of the acquisition of the shares of stock of Manchester Bank West. The approval was granted pursuant to 12 U.S.C. §§ 1841 et seq. Jurisdiction to review the Board's orders is conferred upon this court by 12 U.S.C. § 1848. MFC and Manchester Bank West have intervened and filed briefs in support of the Board's orders. The Board has likewise filed a brief in support of its orders.
2
Plaza Bank asserts that the Board's order approving the stock acquisition should be vacated and set aside for the following reasons:
3
I. The Board's order is arbitrary, capricious and an abuse of discretion in that the Board did not discharge its duty to consider its obligations under 12 U.S.C. § 1842(c) and all relevant factors in making its determination.
4
II. The Board failed to comply with the National Environmental Policy Act.
5
III. The Board acted illegally and beyond its jurisdiction in approving the acquisition of the stock of the bank which Plaza Bank claimed to have been chartered in violation of applicable Missouri law.
6
We reject each of such contentions and dismiss the petition for the reasons hereinafter stated. The record is voluminous. We will only briefly summarize the relevant facts to the extent necessary to afford a background for discussion of the legal issues.
7
Five individuals applied to the Missouri Commissioner of Finance for a state charter for Manchester Bank West pursuant to Missouri law. The applicants were provided with a loan for the required capital by MFC. Submitted with the state application and also with the federal acquisition application was the written contract between the five organizers and MFC which provided that the loan would be without interest and that upon the granting of the state charter the stock would be transferred to MFC and the $1,200,000 loan would be cancelled. The state charter was granted subject to certain conditions, the material one here being:
8
Finally, the correspondence which accompanied the charter expressly stated that Manchester Bank West County was not to open unless and until prior approval was granted by the Board of Governors of the Federal Reserve System for acquisition of said bank by Manchester Financial Corporation, St. Louis, Missouri.
9
On October 25, 1976, MFC applied to the Board for prior approval to acquire 99.4% of the voting shares of Manchester Bank West. The 91-page application included a detailed feasibility study. The Federal Reserve Bank of St. Louis made a field investigation and submitted a detailed report to the Board. Copies of the application were sent to the Missouri Commissioner of Finance, the Comptroller of the Currency, the Federal Deposit Insurance Corporation, and the Antitrust Division of the Department of Justice. Notice of the application was published in the Federal Register. The Missouri Commissioner of Finance advised the Board by letter on December 1, 1976, that he had no objection to the application.
10
Plaza Bank filed detailed objections to the application and was afforded a full opportunity to present its reasons why the application should not be granted. Additional facts will be set out in the course of the opinion.
11
The scope of review of this proceeding is set out in 5 U.S.C. § 706 which provides that a court shall hold unlawful and set aside administrative action, findings and conclusions which are found to be arbitrary, capricious, an abuse of discretion or not otherwise in accordance with law. In First National Bank of Fayetteville v. Smith, 508 F.2d 1371, 1376 (8th Cir. 1974), this court held:
12
The "arbitrary and capricious" standard of review is a narrow one. Citizens to Preserve Overton Park, Inc. v. Volpe, supra, 401 U.S. 402 at 416, 91 S.Ct. 814, 28 L.Ed.2d 136. Its scope is more restrictive than the "substantial evidence" test which is applied when reviewing formal findings made on a hearing record. See Camp v. Pitts, supra, 411 U.S. 138 at 141, 93 S.Ct. 1241, 36 L.Ed.2d 106; Webster Groves Trust Co. v. Saxon, supra, 370 F.2d 381 at 387 (8 Cir.); Charlton v. United States, 412 F.2d 390, 398 (3d Cir. 1969) (Stahl, Circuit Judge, concurring). "Administrative action may be regarded as arbitrary and capricious only where it is not supportable on any rational basis." Carlisle Paper Box Co. v. N.L.R.B., 398 F.2d 1, 6 (3d Cir. 1968). Something more than mere error is necessary to meet the test. N.L.R.B. v. Parkhurst Manufacturing Co., 317 F.2d 513, 518 (8th Cir. 1963). To have administrative action set aside as arbitrary and capricious, the party challenging the action must prove that it was "willful and unreasoning action, without consideration and in disregard of the facts or circumstances of the case * * * ." 73 C.J.S. Public Administrative Bodies and Procedure § 209 at 569 (1951).
13
The Bank Holding Company Act, 12 U.S.C. § 1848, states: "The findings of the Board as to the facts, if supported by substantial evidence, shall be conclusive."
14
We now reach the errors relied upon and will treat them in the order hereinabove stated.
I.
15
The factors governing the approval of a stock acquisition application are set out in 12 U.S.C. § 1842(c). Petitioner's brief on point I consists of one and one-half pages. The Board in its brief sets forth in considerable detail the evidence supporting the approval of the application. We have examined the record and find that the evidence supporting the economic and public interest aspects of the application is overwhelming. In the absence of any substantial attack upon the economic issues, we see no purpose in detailing the supporting evidence. The Board's findings upon which the application was approved are supported by substantial evidence and are not arbitrary or capricious. Petitioner in brief on the first issue states that it presented two independent arguments: (1) the interpretation of R.S.Mo. 362.015 and 351.050, and (2) the interpretation of R.S.Mo. 362.415, and that only the first point was considered by the Board. We shall consider this issue at point III.
II.
16
The National Environmental Policy Act, at 42 U.S.C. § 4332(2)(C), provides all agencies of the federal government shall include with respect to major federal actions significantly affecting the quality of the environment a detailed environmental impact statement. Petitioner, relying largely on Country Club Bank of Kansas City v. Smith, 399 F.Supp. 1097 (W.D.Mo.1975), urges that the Board erred in not building up an environmental record and in not stating its reasons for not requiring an environmental impact statement. Country Club is distinguishable from our present case in that there a federal bank charter was involved. Moreover, the issue of whether an environmental impact statement was required was not adjudicated but such issue was remanded to the Comptroller of the Currency for more detailed findings. In our present case the Board in its order denying reconsideration states:
17
The second argument advanced by Petitioner | {
"pile_set_name": "FreeLaw"
} |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.