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648 S.E.2d 442 (2007)
Jonathan Brian ROBERTS
v.
COLDWELL BANKER KINARD REALTY (two cases).
Nos. A07A0248, A07A0330.
Court of Appeals of Georgia.
June 20, 2007.
*443 Brian Macon House, for Jonathan Brian Roberts.
Minor, Bell & Neal, Stephen Bruce Farrow, Dalton, for Coldwell Banker Kinard Realty.
Bandy & Stagg, Lawrence Alan Stagg, Ringgold, for Angela Dunn Roberts.
MILLER, Judge.
In this breach of contract action, Jonathan Brian Roberts (Case No. A07A0248) and Angela Dunn Roberts (Case No. A07A0330) appeal from the trial court's grant of summary judgment against them and in favor of Coldwell Banker Kinard Realty ("Coldwell Banker"). Finding that the trial court erred in holding that Coldwell Banker was contractually entitled to a commission on the sale of the Robertses' home, we reverse.
"On appeal from a grant of summary judgment, we conduct a de novo review of the evidence to determine if there exists a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, entitle the movant to judgment as a matter of law." (Citation omitted.) Wachovia Bank v. Moody Bible Institute of Chicago, 283 Ga. App. 488, 489, 642 S.E.2d 118 (2007).
So viewed, the evidence shows that on March 31, 2005, while the Roberts were in the middle of a contested divorce, the parties entered into an "Exclusive Seller Listing Agreement" (the "Listing Agreement"), under which Coldwell Banker became the Robertses' agent for the purpose of selling their home. Paragraph 5 of the Listing Agreement provided that Coldwell Banker would be entitled to a six percent commission if: (1) the property sold during the term of the Listing Agreement; or (2) the property sold within 180 days after the expiration of that agreement, provided that the buyer was "introduced to the property by the Broker" while the Listing Agreement was in effect. The Listing Agreement expired on June 30, 2005.
In late February or early March, 2005 Michelle Denton saw a "For Sale By Owner" sign in the Robertses' yard. Several days later, and prior to the date on which the Robertses entered into the Listing Agreement, Mr. Denton's sister, who was a friend of Mr. Roberts, introduced the two men and they discussed the property. In April, 2005, Mr. Denton called Mrs. Roberts to arrange a viewing of the house, and he learned that the property was now listed with Coldwell Banker. The Dentons then contacted a real estate agent with Trinity Real Estate, LLP ("Trinity") and went with him to view the house on June 11, 2005. After questions by Mrs. Roberts made them "uncomfortable," the Dentons left. Shortly thereafter, Messrs. Roberts and Denton spoke on the *444 telephone regarding the property, but no offer was made.
Within a few days after the expiration of the Listing Agreement, Mr. Roberts contacted Mr. Denton to ask if they were still interested in the property. On July 11, 2005, the Dentons made an offer to purchase the house. Mrs. Roberts refused to agree to the sale, so Mr. Roberts sought and obtained a court order requiring her to quit-claim her interest in the property to him. Mr. Roberts subsequently closed the sale of the property to the Dentons.
Coldwell Banker then initiated the current action against the Robertses, seeking to recover an $18,000 commission allegedly owed it under Paragraph 5 of the Listing Agreement, asserting that the Dentons were "introduced" to the property by Trinity and that Trinity was a licensee of Coldwell Banker. Coldwell Banker and Mr. Roberts then filed cross-motions for summary judgment, with the trial court denying Mr. Robertses', granting Coldwell Banker's, and entering judgment against the Roberts and in favor of Coldwell Banker.
On appeal, Mr. Roberts asserts that the trial court erred in finding that a "licensee" of Coldwell Banker "introduced" the buyers to the property. Mrs. Roberts argues that she cannot be held liable for the commission, because at the time the sale closed she no longer owned an interest in the property. We agree with Mr. Roberts, and therefore reverse the grant of summary judgment in favor of Coldwell Banker against both Mr. and Mrs. Roberts.
1. Under the terms of the Listing Agreement, Coldwell Banker is entitled to a commission only if it can show that Coldwell Banker or its licensee introduced the Dentons to the property. Coldwell Banker argues, and the trial court implicitly found, that the Dentons were introduced to the property when they went to view the same with their real estate agent, and that Trinity was Coldwell Banker's licensee. These findings, however, contravene applicable law.
This Court has previously held that the use of the term "introduced," as used in the extension clause found in the Listing Agreement, was intended "to obligate sellers to pay commissions . . . where the broker [initially] told the buyer about the property, provided the buyer with information about the property, or showed the buyer the property." Snipes v. Marcene P. Powell & Assoc., 273 Ga.App. 814, 817(1)(a), 616 S.E.2d 152 (2005). In Snipes, we held that because the buyer had seen the broker's "For Sale" sign on the property and thereafter contacted the broker for information regarding the same, the broker had introduced the buyer to the property. Id. at 818(1)(b), 616 S.E.2d 152.
Here, undisputed affidavit testimony established that the Dentons first learned of the property by viewing a "For Sale By Owner" sign placed by Mr. Roberts. Additionally, the Dentons obtained their initial information about the property from Mr. Roberts, before the property was listed with Coldwell Banker and before the Dentons engaged Trinity to serve as their agent. Applying the Snipes holding to these facts, we must conclude that Mr. Roberts, rather than Trinity, introduced the property to the Dentons.
We further note, however, that even had Trinity introduced the property to the Dentons, that fact would not entitle Coldwell Banker to a commission, because there is no evidence that Trinity was a licensee of Coldwell Banker.
As noted above, the extension clause applies to a sale of the property to a party introduced by the "Broker" during the listing period, and "Broker" is defined as Coldwell Banker "and its licensees." In the real estate context, Georgia law defines a licensee as "any person who is licensed as a community association manager, salesperson, associate broker, or broker." OCGA § 43-40-1(5). Associate brokers, community association managers, and salespersons, in turn, are all defined as persons who act "on behalf of a real estate broker." OCGA § 43-40-1(1), (4.3), (10). Here, Paragraph 5 of the Listing Agreement clearly distinguishes between Coldwell Banker, as "Broker," and "other brokers." Thus, logic dictates that the phrase "[Broker's] licensees," as used in the Listing Agreement, was not intended to embrace all licensed real estate professionals; *445 rather, it was intended to refer only to associate brokers or salespersons specifically licensed to act on behalf of Coldwell Banker.
This conclusion is reenforced by "[t]he cardinal rule of [contract] construction[, which] is to ascertain the intent of the parties." (Citation omitted.) Municipal Elec. Auth. of Ga. v. Gold-Arrow Farms, 276 Ga.App. 862, 866(1), 625 S.E.2d 57 (2005). In determining that intent, "all the contract terms must be considered together . . ., and a construction upholding the contract in whole and every part is preferred." (Citations omitted.) Id.
Here, Coldwell Banker is asking us to read the extension clause so that it would be entitled to a commission if the property sold within six months after the expiration of the Listing Agreement, so long as the buyer had been introduced to the property during the term thereof. Had the parties intended that result, however, there would have been no need to include the limiting words "by Broker," following the words "introduced to the property," within the extension clause of Paragraph 5. Reading the Listing Agreement in its entirety, therefore, we must conclude that the phrase "Broker and its licensees" refers only to Coldwell Banker and licensed real estate professionals specifically affiliated with that company.
2. In light of our holding in Division 1, supra, we need not address the question of whether Mrs. Roberts can be held liable for a commission on the sale of the property where she no longer owned an interest in the property at the time the sale closed.
For the foregoing reasons, we reverse the trial court's order granting summary judgment in favor of Coldwell Banker and against the Robertses.
Judgment reversed.
BARNES, C.J., and SMITH, P.J., concur.
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37 So.3d 997 (2010)
STATE of Louisiana
v.
Israel FLORES, et al.
No. 2010-KK-0960.
Supreme Court of Louisiana.
June 18, 2010.
*998 PER CURIAM.
Granted. The decisions of the courts below are reversed and this case is remanded to the district court for further proceedings.
Even assuming that the entry of the police officers into the residence located at 5330 Venus Street in New Orleans and initial security sweep of the premises occurred without exigent circumstances or consent and thus amounted to an illegal search of the dwelling, when officers have probable cause to believe that evidence of criminal activity is on the premises, they may temporarily secure the dwelling to protect themselves and to prevent the removal or destruction of evidence to preserve the status quo while obtaining a search warrant. Segura v. United States, 468 U.S. 796, 810, 104 S.Ct. 3380, 3388, 82 L.Ed.2d 599 (1984)("[S]ecuring a dwelling on the basis of probable cause, to prevent the destruction or removal of evidence while a search warrant is being sought is not itself an unreasonable seizure of either the dwelling or its contents [for Fourth Amendment purposes]"). Further, even assuming that the consent of defendant Flores to the subsequent search of the residence for evidence was tainted by its close temporal proximity to the entry of the officers, see State v. Ferrand, 95-1346 (La.12/8/95), 664 So.2d 396, the warrant process was well underway, and the application was "pretty much typed and ... ready to print," when Flores gave consent and prematurely authorized the search, prompting the police to forego taking the warrant application to a magistrate. Because nothing the officers observed on the premises after their initial entry affected the decision to obtain a warrant, and because the probable cause basis for the warrant application derived not from their observations on the scene but from wholly independent sources, i.e., from a confidential informant and defendant Olivarez, who informed the surveillance team that 30 pounds of marijuana were inside the residence, information which was then conveyed to the agents as they knocked and made their initial entry after Flores opened the door, the police would have obtained a valid warrant from a magistrate and would have inevitably discovered the contraband and other items in the residence by lawful means. See Murray v. United States, 487 U.S. 533, 539, 108 S.Ct. 2529, 2534, 101 L.Ed.2d 472 (1988)("The inevitable discovery doctrine, with its distinct requirements, is in reality an extrapolation from the independent source doctrine: Since the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered."); see also United States v. Elder, 466 F.3d 1090, 1091 (7th Cir.2006)("The usual understanding of that doctrine is that the exclusionary rule should not be applied when all the steps required to obtain a valid warrant have been taken before the premature search occurs [citing Murray].").
The trial court therefore erred in granting the motion to suppress evidence. We set aside that ruling and remand for further proceedings consistent with the views expressed herein.
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357 F.2d 923
Henry G. BARTSCH, d/b/a Airport Dispatching Service, Petitioner,v.WASHINGTON METROPOLITAN AREA TRANSIT COMMISSION, Respondent.Airport Transport, Inc., of Virginia, Intervenor.
No. 10217.
United States Court of Appeals Fourth Circuit.
Argued February 7, 1966.
Decided March 7, 1966.
Henry G. Bartsch, Washington, D. C., pro se.
Russell W. Cunningham, General Counsel, Washington Metropolitan Area Transit Commission, for respondent.
Linwood C. Major, Jr., Washington, D. C., for intervenor.
Before HAYNSWORTH, Chief Judge, and SOBELOFF and J. SPENCER BELL, Circuit Judges.
PER CURIAM.
1
This is a petition for review of an order of the Washington Metropolitan Area Transit Commission. Washington Metropolitan Transit Regulation Compact Act (1960), § 6; Compact, Title II, Art. XII, § 17(a) Public Law 86-794, 74 Stat. 1031.
2
This petition attacks fare increases granted to a competitor of the petitioner. WMATC Order No. 486. He raises four objections: (1) The Commission incorrectly classified vehicles of less than 8 passengers as non-taxicabs; (2) The order allows higher fares to be charged by Airport Transport, Inc., of Virginia than by other carriers, in violation of the Fourteenth Amendment to the Constitution; (3) The Commission does not have jurisdiction to set fares for trips to and from Washington National Airport; and (4) The taxicab rates set are unreasonable.
3
We do not consider the first objection. It has already been litigated between the identical parties. Bartsch v. Washington Metropolitan Area Transit Comm. No. 18,093 (D.C.Cir. 1965). If "an issue * * * has once been decided between the parties by a competent court, the court will not permit the matter to be relitigated between the same parties in another case." Seatrain Lines, Inc. v. Pennsylvania R. R. Co., 207 F.2d 255, 259 (3 Cir. 1953).
4
No substantial issue is raised by the second objection. The equal protection clause does not require that rates be identical within an entire industry. In the regulation of varying services in several states minor variations are to be expected. Compact, supra, Title II, Art. XII, § 6(a) (2).
5
The Commission does have jurisdiction to set taxicab rates to and from Washington National Airport. The grant of exclusive jurisdiction over the airport to the federal government, Code of Virginia, Title 7, Chap. 1, §§ 7-9, does not exclude all state jurisdiction relating to the federal area.
6
"[C]onsent to this acquisition gave the United States power to exercise exclusive jurisdiction within the area. * * * The fiction of a state within a state can have no validity to prevent the state from exercising its power over the federal area within its boundaries, so long as there is no interference with the jurisdiction asserted by the Federal Government. The sovereign rights in this dual relationship are not antagonistic. Accommodation and cooperation are their aim. It is friction, not fiction, to which we must give heed." Howard v. Commissioners of Sinking Fund, etc., 344 U.S. 624, 627, 73 S.Ct. 465, 467, 97 L.Ed. 617 (1953).
7
Regulation of interstate rates to and from the airport does not conflict with the internal control of the facilities.
8
The taxicab rates set were not unreasonable. In determining rates we think the Commission was justified in taking into consideration lawfully imposed franchise fees paid by the carrier.
9
The order of the Commission is affirmed.
10
Affirmed.
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Trinajstic v St. Owner, LP (2017 NY Slip Op 03117)
Trinajstic v St. Owner, LP
2017 NY Slip Op 03117
Decided on April 25, 2017
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on April 25, 2017
Friedman, J.P., Richter, Feinman, Gische, Gesmer, JJ.
3804 108341/10 590198/13 590296/14
[*1]Thomas Trinajstic, Plaintiff-Respondent,
vSt. Owner, LP, et al., Defendants-Appellants, Insignia Residential Group. Inc., Defendant.
St. Owner, LP, et al., Third-Party Plaintiffs-Respondents-Appellants,
-against-vQ's Marble & Stone Inc., Third-Party Defendant, Pat Pellegrini Flooring Corporation, Third-Party Defendant-Appellant. [And a Second Third-Party Action]
Cascone & Kluepfel, LLP, Garden City (James K. O'Sullivan of counsel), for Pat Pellegrini Flooring Corporation, appellant.
Marshall Dennehey Warner Coleman & Goggin, P.C., New York (Michael R. Manarel of counsel), for St. Owner, LP and Tishman Speyer Properties, L.P., appellants/respondents-appellants.
Sacks and Sacks LLP, New York (Scott N. Singer of counsel), for respondent.
Order, Supreme Court, New York County (Lucy Billings, J.), entered August 16, 2016, which, inter alia, denied the motion of defendants St. Owner, LP and Tishman Speyer Properties, L.P. for summary judgment dismissing plaintiff's Labor Law § 241(6) claim and on their third-party claim for common-law indemnification against third-party defendant Pat Pellegrini Flooring Corporation (Pellegrini), and denied the motion of Pellegrini for summary judgment dismissing the third-party action as against it, unanimously affirmed, without costs.
The court correctly found that questions of fact as to whether workers employed by Pellegrini, a flooring refinisher at defendants' premises, created the dust that allegedly contributed to plaintiff's fall barred dismissal of his claim pursuant to Labor Law § 241(6) (see 12 NYCRR 23-1.7[d], [e]). Plaintiff, a laborer for the general contractor on a gut renovation project at the premises, was in the process of placing protection over the newly refinished floors at the time of his fall, and was thus entitled to the protections of the Labor Law (see Bajor v 75 E. End Owners Inc., 89 AD3d 458 [1st Dept 2011]; Tornello v Beaver Brook Assoc., LLC, 8 AD3d 7 [1st Dept 2004]). The fact that plaintiff's job duties on the project also included some cleaning and debris removal does not bar his claim, as the record indicates that he was not engaged in cleaning the dust or broken tiles that caused him to fall (see Lopez v Fordham Univ., 69 AD3d 532, 533 [1st Dept 2010], lv dismissed 15 NY3d 821 [2010]).
The court also correctly determined that summary resolution of defendants' claim for common-law indemnification against Pellegrini would be premature. While the record contains evidence that plaintiff's fall was caused by the presence of dust created by Pellegrini, plaintiff also pointed to broken tiles as a cause of his fall, tiles unrelated to Pellegrini's work. In any event, defendants failed to make a prima facie showing of a
lack of any negligence on their part (see Martins v Little 40 Worth Assoc., Inc., 72 AD3d 483, 484 [1st Dept 2010]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 25, 2017
CLERK
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573 F.2d 1095
UNITED STATES of America, Plaintiff-Appellee,v.Walter T. BEST, Defendant-Appellant.
No. 77-2836.
United States Court of Appeals,Ninth Circuit.
March 31, 1978.
Robert M. Holley, Sacramento, Cal., for defendant-appellant.
Harry Hull, Asst. U.S. Atty., Sacramento, Cal., for plaintiff-appellee.
On Appeal from the United States District Court for the Eastern District of California.
Before ELY, WRIGHT and CHOY, Circuit Judges.
CHOY, Circuit Judge:
1
While this appeal arises from a simple conviction for drunk driving, it raises important issues involving the interpretation of the Assimilative Crimes Act, the formulation of federal common law, and the limits upon federal authority over the states imposed by the Constitution.
2
Appellant Best pleaded guilty to driving a vehicle on McClellan Air Force Base (a federal enclave in the State of California) while under the influence of alcohol, in violation of California Vehicle Code § 23102(a), a statute incorporated into federal law by 18 U.S.C. § 13, the Assimilative Crimes Act. The United States Magistrate for the Eastern District of California sentenced Best to serve ten days in jail and to pay a fine of $350 pursuant to Cal.Veh.Code § 23102(c).1 The magistrate further ordered that appellant's driver's license be suspended for six months pursuant to Cal.Veh.Code § 13201.5(a).2 Best moved to correct the sentence under Fed.R.Crim.P. 35 on the ground that the magistrate lacked the power to suspend his driver's license. The motion was denied, and the district court affirmed that denial. We reverse and remand.3
3
Appellant does not dispute the sentence of ten days or the fine. However, he contends that the portions of the California Vehicle Code providing for suspension of driver's licenses are not incorporated into federal law by virtue of the Assimilative Crimes Act, and that the suspension of his California driver's license by a federal magistrate is an impermissible interference with that state's regulation of its highways.
Assimilative Crimes Act
4
The Assimilative Crimes Act, 18 U.S.C. § 13, states:
5
Whoever within or upon any of the places now existing or hereafter reserved or acquired as provided in section 7 of this title (defining the special maritime and territorial jurisdiction of the United States), is guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State, Territory, Possession, or District in which such place is situated, by the laws thereof in force at the time of such act or omission, shall be guilty of a like offense and subject to a like punishment.
6
The purpose of this statute, the history of which dates to 1825,4 is to conform the criminal law of federal enclaves to that of local law except in cases of specific federal crimes. United States v. Sharpnack, 355 U.S. 286, 289-95, 78 S.Ct. 291, 2 L.Ed.2d 282 (1958); Acunia v. United States, 404 F.2d 140, 142 (9th Cir. 1968). It has been described as "a shorthand method of providing a set of criminal laws on federal reservations by using local law to fill the gaps in federal criminal law," United States v. Prejean, 494 F.2d 495, 496 (5th Cir. 1974), and does not apply where another federal statute makes criminal the same conduct condemned under state law.5 The Act is appropriately applied here, since there is no express enactment of Congress providing punishment for drunk driving. See United States v. Walker, 552 F.2d 566, 568 (4th Cir. 1977).
7
However, the Act by its own terms incorporates into federal law only the criminal laws of the jurisdiction within which the enclave exists; it is, itself, a penal statute. See United States v. Sharpnack, supra, 355 U.S. at 291-93, 78 S.Ct. 291. Thus, in the instant case only those California statutes making drunk driving a criminal offense and authorizing punishment therefor are assimilated into federal law under the Act.
8
Appellant contends that the provisions of the California Vehicle Code providing for suspension of driver's licenses are regulatory and not punitive. He would, for purposes of determining whether the statutes in question are within the scope of the Act, rely on state definitions of "punishment." California's interpretation of those of its criminal statutes incorporated into federal law is of course binding under the Act. But California's definition of "punishment" cannot govern if it conflicts with the scope of that term as used in the federal statute. What meaning Congress intended is a federal question which we must determine. See Johnson v. Yellow Cab Co., 321 U.S. 383, 391, 64 S.Ct. 622, 88 L.Ed. 814 (1944); Puerto Rico v. Shell Co., 302 U.S. 253, 265-66, 58 S.Ct. 167, 82 L.Ed. 235 (1937); see also Reconstruction Finance Corp. v. Beaver County, 328 U.S. 204, 208, 66 S.Ct. 992, 90 L.Ed. 1172 (1946).
9
In United States v. Sharpnack, supra, the Supreme Court analyzed the history of the Assimilative Crimes Act beginning with the Act of 1825, sponsored by Daniel Webster in the House of Representatives, in which the Congress expressly adopted the fundamental policy of "conformity to local law." The Court concluded that the succeeding series of reenactments culminating in the present statute "demonstrates a consistent congressional purpose to apply the principle of conformity to state criminal laws . . . ." 355 U.S. at 290-91, 78 S.Ct. at 295. The rationale for this policy was articulated in the earlier case of United States v. Press Publishing Co.:
10
It is certain . . . that as to such offenses the state law, when they are by that law defined and punished, is adopted and made applicable. . . . When these results of the statute are borne in mind, it becomes manifest that Congress, in adopting it, sedulously considered the twofold character of our constitutional government, and had in view the enlightened purpose, so far as the punishment of crime was concerned, to interfere as little as might be with the authority of the states on that subject . . . .
11
219 U.S. 1, 9, 31 S.Ct. 212, 214, 55 L.Ed. 65 (1911) (emphasis supplied). Pursuant to this rationale, we recently determined that particular state laws were prohibitory rather than regulatory against the backdrop of the Act's policy that a state's penal laws will be uniformly applied to citizens on and off federal enclaves. United States v. Marcyes, 557 F.2d 1361, 1364-65 (9th Cir. 1977).
12
We think the congressional purpose can best be achieved by application of state interpretations of what constitutes "punishment," since this accomplishes the Act's objective of providing a criminal law for federal enclaves while at the same time effectuating the policy of conformity to local law.6
California Law
13
The California scheme for suspending the driver's licenses of those who are convicted of drunk driving is dichotomous: authority to suspend is vested both in the courts and in the Department of Motor Vehicles (DMV) under certain circumstances. Thus, pursuant to Cal.Veh.Code § 13352, the DMV is required to suspend the license of one who is convicted for the second time of drunk driving whether or not the court orders suspension. While no California authority appears with respect to court-ordered suspensions, it is well established that such departmental suspensions are regulatory and not penal. See, e. g., Beamon v. Department of Motor Vehicles, 180 Cal.App.2d 200, 209-10, 4 Cal.Rptr. 396, 403 (1960).
14
Until recently, the dichotomy between court-ordered and departmental suspensions was more clear. When Beamon was written, for example, California gave the DMV and the courts concurrent authority to suspend driver's licenses after the first conviction for drunk driving, so that where a court chose not to suspend the convict's license, the DMV could still do so in its discretion even in the face of the court's recommendation of no suspension. See former Cal.Veh.Code §§ 13352, 13354; Hough v. McCarthy, 54 Cal.2d 273, 281-82, 5 Cal.Rptr. 668, 673-74, 353 P.2d 276, 280 (1960). However, this clear definition no longer exists with respect to first convictions for drunk driving.
15
Cal.Veh.Code § 13201.5, enacted in 1975, provides that the court may suspend a driver's license upon a first conviction, while § 13352(a), enacted in 1972, requires the DMV to suspend a driver's license upon a first conviction except "where the court does not order the department to suspend."7 Moreover, the DMV's discretionary suspension authority, which formerly included first convictions for drunk driving, see Hough v. McCarthy, supra, no longer extends | {
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October 17, 1977
78-87 MEMORANDUM OPINION FOR THE COUNSEL
TO THE PRESIDENT
Privacy—Persons Writing to the President— Freedom
of Information Act (5 U.S.C. § 552e (1976))
This responds to your request for our views as to the means available to
protect the privacy of private persons who write to the President and whose
letters are referred to the various Federal agencies for response.
It is our position that the President and his immediate staff are not agencies or
part of agencies within the meaning o f the Freedom o f Information Act (the
Act), 5 U .S.C. § 552(e) (1976) and thus private letters addressed to the
President are not agency records subject to the Freedom of Information Act so
long as they are maintained by the President or his staff. See Attorney G eneral’s
1974 Freedom of Information Amendments Memorandum at 25. However,
when such letters are referred to other Federal agencies for reply they will, in
the absence of some special arrangement, become agency records subject to the
Act. As we understand it, your view is that persons who write to the President
ought to be able to do so confidentially and that it would be an invasion of
privacy to make their identity publicly available. There are several methods by
which their privacy can be maintained.
1. D em onstrable Bailm ent. The ordinary presumption is that any record in
the possession of an agency regardless of its origin is an agency record subject
to the Act. However, the courts have recognized that the records originating in
governmental units not covered by the Act may expressly be “ loaned” to an
agency that is subject to the Act without becoming an agency record. Cook v.
Willingham, 400 F. (2d) 885 (10th Cir. 1968) (judicial presentencing report in
the hands of the Bureau of Prisons); G oland v. Central Intelligence Agency,
Civ. No. 76-166, D .D .C ., May 26, 1976 (Congressional Record lent to the
Central Intelligence A gency).1 A somewhat similar bailment technique is also
used by the Federal Bureau of Investigation and the Civil Service Com
mission to retain such control as they may have over the public release of
certain investigatory records which they originate and subsequently disseminate
'A ffirm ed by the District o f Colum bia Court o f A ppeals, May 23, 1978.
379
to other Federal agencies; the records bear a printed legend that they are the
property of the originating and not o f the holding agency.
In our opinion, the President could probably use an express bailment,
evidenced perhaps by a stamped legend on each letter, to reserve ownership and
thus control over its release under the Act. (The reservation of ownership would
be particularly credible if all or some are recalled by and returned to the White
House after the agencies have prepared responses.) Nevertheless, such an
express bailment technique would not be adequate in itself to protect the
identity or privacy of private correspondents, because the replies generated by
the agencies will ordinarily reveal the name and address of the correspondent
and the general thrust of his inquiry, problem, or comment, and these
replies— or rather their file copies— will be agency records subject to the Act.
While it might be possible for the President to assert ownership of these file
copies also, such an assertion would be questionable, and a strong argument
could be made that they are agency records subject to the Act because they are
generated and maintained by the originating agency in the ordinary course of
agency business. Were the President to arrange that all agency copies of replies
be physically delivered to him, he could, o f course, remove them from the
coverage o f the Act. This alternative, however, seems equally questionable and
also administratively unsound in that it would deprive agencies of copies of
their own correspondence and, depending upon the nature of the agency
response, might violate the Federal Records Act in some circumstances. Pub.
L. 90-620, 44 U .S.C . §§ 3101-3314 (1976).
2. Sanitizing R eferrals to the A gencies. When a private letter is referred to
an agency, the President could send the agency a copy of the letter from which
the name and address of the correspondent have been deleted and in which a
control num ber has been substituted. The agency would then draft a proposed
reply, using the code num ber o f the incoming correspondence, and send the
proposed reply to the White House where the identity o f the correspondent
would be decoded and the reply addressed, perhaps as reviewed and retyped on
White House letterhead. In this manner, the identity of the correspondent
would, in most cases, not be available in agency records and hence preserved
from disclosure under the Freedom o f Information Act.
We see at least two disadvantages with this method. First, the effort required
to respond to private correspondence addressed to the President might be nearly
doubled, in that each reply would have to be handled twice— once by the
agency and then again in the W hite House. Second, in those cases where the
letter contains personal identifying information about the writer which the
agency will need in formulating a meaningful reply, such as a personal
complaint about obtaining social security or other Federal benefits or permits,
this proposed method simply would not work except at the price of precluding a
meaningful reply. Yet such letters may well be the ones most deserving both of
a responsive reply and of privacy protection because of the personal informa
tion they may contain. In any case, substituting a code number for the w riter’s
name and address offers no privacy protection where the correspondent is
writing about the problems o f a relative or friend identified in the body of the
letter.
380
• 3. Reliance on the P rivacy Exemption in the Freedom o f Information A ct. In
our view, the names and addresses o f private correspondents and other
personally identifying data in letters to the President, after referral to agencies
for reply, would usually be withholdable under the sixth exemption o f the
Freedom of Information Act because disclosure would constitute a “ clearly
unwarranted invasion o f personal privacy.” 5 U .S.C . § 552(b) (6) (1976): cf.,
Wine H obby, U .S .A ., Inc. v. U nited States Bureau o f Alcohol, Tobacco, and
Firearm s, 502 F.(2d) 133 (3d Cir. 1974). Almost all such letters either contain
some personal information about the writer or a member o f his family, if not
information about personal opinions which the writer chooses to communicate
to the President but presumably not the the entire public.2 In the ordinary case,
a requester would have no justifiable interest in determining the identity of the
correspondents; any legitimate interest, such as attempting to determine the mix
of citizen correspondence addressed to the President, would be served by
making available copies o f the letters which have been sanitized by deleting
names and other identifying inform ation.3 While one can reasonably anticipate
that a few requests will relate to matters which have a substantial public
interest, and in which withholding of identifying information would be
improper under the Act because the legitimate public interest in disclosure of
identity outweighs the individual’s privacy, it seems to us that disclosure of
identification in such rare cases would not be undesirable.
To help assure uniform agency implementation of a decision to use the sixth
exemption to protect the privacy of correspondents, the President could proceed
either (a) by instructing all agencies to preserve from clearly unwarranted
invasions the privacy of individuals involved in correspondence referred from
the White House, by withholding the name and other identifying data if such
correspondence is to be made available in response to requests under the A ct,4
or (b) by requiring that such records be maintained in a “ system of records” as
defined in the Privacy Act. 5 U .S.C . § 552a (1976). In the second way, the
Privacy A ct’s sanctions for improper disclosure would buttress the protection
for the privacy of correspondents. However, such added protection, while
stronger than that afforded by a Presidential directive or agency policy
unsupported by sanctions, would be no greater in scope: The measure o f the
material that could be protected would still be the sixth exemption and in rare
instances identities might have to be released in the public interest. Moreover,
the use of the Privacy Act is unnecessarily cumbersome because it would
2ln m any, and perhaps m ost, private letters to the President, there would seem to exist a public
interest elem ent which should reinforce, rather than counterbalance, the usually m inor invasions of
the w riters’ privacy. T his is the public interest, which has First Am endm ent overtones, in
protecting the right to petition the President without the chilling effect o f fear o f publicity. O f
course, where the writer is com m unicating on behalf o f an organization, privacy considerations
would rarely be applicable, and the mix o f public interest factors would be much more likely to call
for disclosure.
3C /., Rose v. Air Force. 425 U .S. 352 (1976).
“This m em orandum assum | {
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601 F.2d 1011
202 U.S.P.Q. 401
SURGICENTERS OF AMERICA, INC., an Arizona Corporation,Plaintiff-Appellant,v.MEDICAL DENTAL SURGERIES, CO., an Oregon Corporation dbaMedical Dental Surgicenters, Defendant-Appellee.
No. 77-2490.
United States Court of Appeals,Ninth Circuit.
May 16, 1979.Rehearing Denied Aug. 22, 1979.
1
John Moran, Phoenix, Ariz., for plaintiff-appellant.
2
Paul Gerhardt, Portland, Or., for defendant-appellee.
3
Appeal from the United States District Court for the District of Oregon.
4
Before GOODWIN and ANDERSON, Circuit Judges, and JAMESON,* District Judge.
JAMESON, District Judge:
5
Appellant, Surgicenters of America, Inc. (Surgicenters), brought this action against appellee, Medical Dental Surgeries Co., dba Medical Dental Surgicenters (Medical), under the Trademark Act of 1946 as amended, 15 U.S.C. § 1051 Et seq., for infringement of its registered service mark, "Surgicenter." The parties filed cross-motions for summary judgment, based upon agreed facts, 45 exhibits, answers to interrogatories, and two depositions. The district court denied appellant's motion and granted appellee's motion, finding "Surgicenter" was not a lawfully registered service mark. We affirm.
Factual Background
6
The basic facts are undisputed, both parties accepting a summary contained in the opinion of the district court. In March, 1970, a month after operating a "facility for one-day surgical care" in Phoenix, Arizona, Surgicenter, Inc., applied for registration of the service mark "Surgicenter" for "services rendered in an in and out surgical facility." On August 31, 1971 the mark "SURGICENTER" was registered to Surgicenter, Inc. "For: PROVIDING FACILITIES FOR DOCTORS TO PERFORM OPERATIONS ON PATIENTS".1 On October 6, 1971, the registration was assigned to appellant.
7
Since the registration of the service mark, Surgicenters has licensed use of the mark in other states.2 The doctors who formed the original corporation have worked since 1968 to popularize their concept of economical one-day surgical care to insure its acceptance by major insurance carriers.
8
In 1962 Medical, an Oregon corporation, filed the assumed business name "Medical Dental Hospital Co." and did business under that name until December, 1972, when the name was changed to "Medical Dental Surgeries Co." In January, 1975, Medical changed its name to "Medical Dental Surgicenters" and filed this business name with the Oregon Corporation Commission. Medical provides facilities for out-patient surgical procedures.
9
On January 28, 1975 Surgicenters notified Medical that Medical's use of the name "Surgicenter" infringed Surgicenters' mark. On June 13, 1975, Surgicenters filed this action to enjoin Medical from further use of the term, to require an accounting and payment of profits for its use since notification, and for damages for infringement
Opinion of District Court
10
The district court, in its opinion granting appellee's motion for summary judgment, held that the mark "Surgicenter" was not a lawfully registered service mark because it was "generic" and thus not registrable. The court concluded further that if the term were considered "descriptive" rather than "generic", it had not "developed a secondary meaning in this area in which Medical operates". In a judgment based upon its opinion, the court denied the injunction and demand for an accounting and damages.
11
In determining that the term "Surgicenter" is generic the court concluded that "Surgicenter" is a "coined word of the combination and abbreviation type which clearly connotes a center for surgery". Since the term "surgery center" obviously "would not be capable of registration because it is quite clearly generic", the term "Surgicenter" was likewise found to be generic.3
12
The district court held further: "Although there are undoubtedly those who connect 'Surgicenter' with the Arizona corporation, the consuming public generally understands the word to mean exactly what it says. This is amply demonstrated in the exhibits." Among the exhibits upon which the court relied was a proposed rule of the United States Department of Health, Education and Welfare appearing in 38 Fed.Reg. 313-81 (1973) defining "Health Care Facilities". The definition included "facilities providing surgical treatment to patients not requiring hospitalization (surgicenters), which are not part of a hospital but which are organized and operated to provide medical care to out-patients".4 Other exhibits included magazine and medical journal articles, letters and a television transcript which used the term "surgicenter".5
Contentions on Appeal
13
Appellant contends that it "coined an arbitrary and fanciful word through the combination of two common or ordinary words" and that the trademark Surgicenter is neither generic nor descriptive. It argues that the district court erred in failing to address properly the issue of genericness, used an analysis of descriptiveness to conclude that the word is generic, used "a scalpel technique" as a method of analysis, misapplied the burden of proof, and its opinion is contrary to case law with respect to combination of an abbreviated word.
Summary Judgment
14
Summary judgment is appropriate where no material issues of fact exist and where a party is entitled to judgment as a matter of law. Rule 56(c), F.R.Civ.P. Here the parties made cross-motions for summary judgment following extensive discovery. As appellant states in its reply brief:The case was submitted on stipulated facts and the parties agreed that there were no genuine issues of material fact. Where the matter is submitted to the court based upon affidavits, exhibits and certain stipulated facts, and where no testimony was taken, the determination by the court is a question of law, readily reviewable by the appellate court. . . . It is this legal proposition (the conclusion that two abbreviated, ordinary words into a single word created a generic term) which appellant requests this court to review along with other issues of law raised in appellant's opening brief.
15
In other words, this was a trial on a stipulated record and was so intended by the parties.6 There are no genuine issues of material facts. It is a proper case for disposition through summary judgment.7
Validity of the Service Mark
16
(a) Effect of Registration
15 U.S.C. § 1057(b) provides that:
17
A certificate of registration of a mark . . . shall be prima facie evidence of the validity of the registration, registrant's ownership of the mark, and of registrant's exclusive right to use the mark in commerce in connection with the goods or services specified in the certificate, subject to any conditions and limitations stated therein.
18
The district court properly recognized that a "properly registered service mark is presumed to be valid".8
19
(b) Categories of Marks
20
The cases identify four categories of terms with respect to trademark protection: (1) generic, (2) descriptive, (3) suggestive, and (4) arbitrary or fanciful. As the district court correctly noted, the lines of demarcation are not always clear, and the "entire area of trade or service marks . . . is fraught with difficulties and ambiguities".9
21
The basic principles of trademark law, including a description of the four categories of mark, are set forth in Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9-11 (2 Cir. 1976). The different categories may be summarized as follows:
22
A "generic" term is one that refers, or has come to be understood as referring, to the genus of which the particular product or service is a species. It cannot become a trademark under any circumstances. Abercrombie & Fitch, supra, 537 F.2d at 9-10.
23
A merely "descriptive" term specifically describes a characteristic or ingredient of an article or service. It can, by acquiring a secondary meaning, i. e., becoming "distinctive of the applicant's goods", become a valid trademark. Id. at 10.
24
A "suggestive" term suggests rather than describes an ingredient, quality, or characteristic of the goods and requires imagination, thought, and perception to determine the nature of the goods. A suggestive term is entitled to registration without proof of secondary meaning. Id. at 10-11.
25
An "arbitrary or fanciful" term is usually applied to words invented solely for their use as trademarks and enjoys all the rights accorded to suggestive terms without the need of debating whether the term is "merely descriptive" and with ease of establishing infringement. Id. at 11.10
26
(c) Determination of Genericness
27
In concluding that the term "Surgicenter" is generic the district court found "most pertinent" the case of Cummins Engine Company, Inc. v. Continental Motors Corp., 359 F.2d 892, 894, 53 CCPA 1167, 1169 (1966), | {
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: October 31, 2014
** * * * * * * * * * * * * * * UNPUBLISHED
ELENA KARBUSHEVA, *
*
Petitioner, * No. 13-040V
*
v. *
* Special Master Dorsey
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * Dismissal Decision; Multiple
* Vaccines; Failure to File an
Respondent. * Expert Report.
*
** * * * * * * * * * * * * * *
Elena Karbusheva, Pro Se, Boise, Idaho
Julia McInerny, United States Dep’t of Justice, Washington, DC, for respondent.
DISMISSAL DECISION 1
On January 11, 2013, Ms. Elena Karbusheva (“Ms. Karbusheva” or “petitioner”) filed a
petition, pro se, pursuant to the National Vaccine Injury Compensation Program, 2 alleging that
she suffered from “Giana – Barre (sic) syndrome, 3 Landry’s ascends paralyses 4 (sic), lupus,
encephalopasy5 (sic), high blood pressure, chronicle 6 (sic) hepatitis B and diabetes.” Petition
(“Pet.”) at 1. Ms. Karbusheva states that these diseases occurred after she was vaccinated. Id.
1
Because this unpublished decision contains a reasoned explanation for the action in this case,
the undersigned intends to post this decision on the United States Court of Federal Claims’
website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116
Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 and note (2006)). In accordance with
Vaccine Rule 18(b), a party has 14 days to identify and move to delete medical or other
information that satisfies the criteria in § 300aa-12(d)(4)(B). Further, consistent with the rule
requirement, a motion for redaction must include a proposed redacted decision. If, upon review,
the undersigned agrees that the identified material fits within the requirements of that provision,
such material will be deleted from public access.
2
The National Vaccine Injury Compensation Program is set forth in Part 2 of the National
Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended,
42 U.S.C. §§ 300aa-1 to -34 (2006) (Vaccine Act or the Act). All citations in this decision to
individual sections of the Vaccine Act are to 42 U.S.C. § 300aa.
3
“Guillain-Barré syndrome”
4
“Land’s Ascending Paralysis”
5
“Encephalopathy”
6
“Chronic”
1
Ms. Karbusheva’s vaccination record shows that she received a number of vaccinations
from March 16, 2009, through January 14, 2011. See Petitioner’s Exhibit 9 (“Pet. Ex.”). The
information in the record does not show entitlement to an award under the Act. For the reasons
that follow, this case is dismissed for insufficient proof.
I. Factual Background
Ms. Karbusheva was born in Russia on January 6, 1963, but she lived in Uzbekistan just
prior to moving to the United States. Pet. Ex. 21 at 1. An overview of Ms. Karbusheva’s
medical history is set forth in petitioner’s exhibit 21. She attended medical school in Uzbekistan
and then worked as an obstetrician/gynecologist. Id. at 1. In 2009, Ms. Karbusheva came to the
United States as a refugee. Id.
Since arriving in the United States, Ms. Karbusheva has been seen by many physicians
and health care providers. She has filed numerous medical records in this case, some of which
will be summarized below in order to provide an overview of the facts that have been reviewed
and considered by the undersigned.
As stated above, Ms. Karbusheva’s vaccination record shows that she received a number
of vaccinations from March 16, 2009, through January 14, 2011. 7 Pet. Ex. 9 at 1-2. On June 28,
2012, Ms. Karbusheva underwent an MRI of her brain which showed “several hyperintense
lesions” which were thought to be “early chronic microvascular changes.” Pet. Ex. 17 at 1. An
MRI of her cervical and lumbar spine performed on the same day showed cervical “foraminal
stenosis” 8 and “multilevel lumbar spondylosis” 9 with a “mass affect on the left S1 nerve root.”
Id. at 2.
Ms. Karbusheva underwent a physical examination by Dr. Kathleen Sutherland on
November 30, 2010. Dr. Sutherland documented that Ms. Karbusheva looked well, was
ambulating and that she did not have inflammation of her joints. Pet. Ex. 21. Dr. Sutherland
also noted that Ms. Karbusheva had no evidence of significant respiratory limitations but that she
7
On March 16, 2009, Ms. Karbusheva received a hepatitis B vaccine. On March 20, 2009, Ms.
Karbusheva received the Td (Tetanus diphtheria) vaccine. On April 16, 2009, and September 16,
2009, she received her second and third hepatitis B vaccinations. On February 1, 2010, Ms.
Karbusheva received the 2009-2010 H1N1 vaccine. On February 12, 2010, she received the
varicella vaccine. On June 30, 2010, Ms. Karbusheva received the Tdap and Measles, Mumps,
Rubella (MMR) vaccines. On August 4, 2010, Ms. Karbusheva received an MMR vaccine. On
January 14, 2011, Ms. Karbusheva received another Td vaccination. On February 3, 2011, she
received a Fluvirin vaccine. Pet. Ex. 9 at 1-2.
8
“Foraminal Stenosis” is the narrowing of the cervical disc space caused by enlargement of a
joint (the uncinate process) in the spinal canal. http://www.spine-health.com/glossary/foraminal-
stenosis.
9
Lumbar spondylosis “describes bony overgrowths (osteophytes), predominantly those at the
anterior, lateral, and, less commonly, posterior aspects of the superior and inferior margins of
vertebral centra (bodies). This dynamic process increases with, and is perhaps an inevitable
concomitant, of age.” http://emedicine.medscape.com/article/249036-overview.
2
did complain of “diffuse myalgias and arthralgias.” Id. Dr. Sutherland also noted that Ms.
Karbusheva had hypothyroidism. Id.
On February 7, 2011, Ms. Karbusheva underwent a neurological consultation with Dr.
Jackie J. Whitesell. Ms. Karbusheva complained of numbness in her feet and chronic back pain.
Pet. Ex. 34 at 1. Dr. Whitesell noted that Ms. Karbuseheva reported back pain that she attributed
to mercury and dioxin exposure in the 1990s. Ms. Karbusheva also reported left sided weakness
and vision loss which occurred in 1995, and which Ms. Karbusheva associated with her exposure
to toxins. Id. Dr. Whitesell’s impressions were as follows:
1. Numbness and burning pain in her feet…if she has a peripheral
neuropathy, it is quite mild.
2. Chronic daily headaches…
3. Abnormal MRI of the brain…However, I think the likelihood of her
having MS at this point is low.
4. Neck pain and low back pain…
5. Hearing loss.
6. Vitamin B12 deficiency.
Pet. Ex. 34 at 19-20.
An EMG study that was performed on April 8, 2011, on Ms. Karbusheva’s left leg
showed that Ms. Karbusheva had “evidence of mild subacute or chronic L5/S1 radiculopathy in
the left leg without ongoing denervation.” Pet. Ex. 33 at 2.
Ms. Karbusheva underwent a neuropsychological consultation on June 2, 2011, with Clay
H. Ward, PhD. Pet. Ex. 41 at 3. Dr. Ward reported the following history, as provided by Ms.
Karbusheva:
The patient…presents with “systematic stress.” She …is having problems
with her asthma and pain in her shoulder and back…in the past she has been
poison | {
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IN THE
TENTH COURT OF APPEALS
No. 10-17-00373-CV
TANYA MARIE COX,
Appellant
v.
HUNTER WEBB AND ARNOLD GERIK,
Appellees
From the 170th District Court
McLennan County, Texas
Trial Court No. 2016-1337-4
MEMORANDUM OPINION
On November 13, 2017, appellant, Tanya Marie Cox, filed a notice of appeal in this
matter purportedly challenging an order signed by the trial court on October 27, 2017.
However, attached to her notice of appeal is an order signed by the trial court on October
16, 2017, whereby the trial court denied traditional and no-evidence motions for
summary judgment filed by appellee, Arnold Gerik. Additionally, appellant’s notice of
appeal refers to the trial court cause number as 2016-1337-4.
Nevertheless, after receiving the Clerk’s Record in this matter, we discovered that,
in trial court cause number 2016-1337-4, which is the basis for this appeal, the trial court
granted summary judgment in favor of Gerik on October 27, 2017. However, the trial
court’s October 27, 2017 order did not dispose of appellant’s claims against co-defendant
Hunter Webb. As such, the trial court’s October 27, 2017 order entered in trial court cause
number 2016-1337-4 is not final. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.
2001) (noting that an appeal may be taken only from a final judgment); see also Sultan v.
Mathew, 178 S.W.3d 747, 751 (Tex. 2005) (“To be final for purposes of appeal, a judgment
must dispose of all issues and parties in a case.” (internal citation omitted)).
On February 6, 2018, we notified appellant by letter that this appeal is subject to
dismissal because appellant appeals from an order that is not final. See TEX. R. APP. P.
42.3, 44.3. We requested a response from appellant showing grounds for continuing the
appeal to be filed within twenty-one days of our February 6, 2018 letter. More than
twenty-one days have passed, and appellant has not filed a response in this case. We
therefore dismiss this appeal for want of jurisdiction. See id. at R. 42.3; see also Sultan, 178
S.W.3d at 751; Lehmann, 39 S.W.3d at 195.
AL SCOGGINS
Justice
Cox v. Webb, et al. Page 2
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Appeal dismissed
Opinion delivered and filed March 21, 2018
[CV06]
Cox v. Webb, et al. Page 3
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16 F.2d 210 (1926)
ALASKA S. S. CO.
v.
KATZEEK.
No. 4834.
Circuit Court of Appeals, Ninth Circuit.
December 13, 1926.
Bogle, Bogle & Gates, of Seattle, Wash., and R. E. Robertson, of Juneau, Alaska, for plaintiff in error.
Redman & Alexander, of San Francisco, Cal., for defendant in error.
Before GILBERT, HUNT, and RUDKIN, Circuit Judges.
GILBERT, Circuit Judge (after stating the facts as above).
Error is assigned to the admission of testimony to show that, shortly after the accident, on the renewal of the effort of the crew to remove the boiler, the tackle again broke, causing the boiler to fall. The evidence was offered for the purpose of showing the defendant's negligence in failing to furnish adequate tackle. Upon that ground the court overruled the objection to its admission, and later, upon the ground that the evidence tended to prove the weight of the boiler, as well as the inadequacy *211 of the tackle, the court overruled the defendant's motion to strike out the testimony. Upon the grounds so stated we think the evidence was admissible. It is permissible to adduce evidence of other accidents or injuries occurring from the same cause and near the same time, to show the existence of defects in the property used, and to show that the defendant failed to adopt proper precautions to prevent injury from the defective nature of his appliances. 29 Cyc. 611, 612. This is not a case where evidence of a similar accident was introduced to prove the negligence of the defendant in the particular act declared upon. Here the purpose of the evidence was to show that immediately after the accident the conditions had not changed and that the tackle used by the defendant was defective. By the decided weight of authority evidence of similar accidents may be adduced, when it is given only to illustrate a physical fact before or after the occurrence which is under investigation and the conditions of that occurrence. O'Brien v. Las Vegas & T. R. Co. (C. C. A.) 242 F. 850; Marathon Lumber Co. v. Dennis (C. C. A.) 296 F. 471; Aurora v. Brown, 12 Ill. App. 122; Unterbrink v. City of Alton, 206 Ill. App. 254; Kress & Co. v. Markline, 117 Miss. 37, 77 So. 858, Ann. Cas. 1918E, 310; Cleveland, Columbus, etc., R. Co. v. Newell, 104 Ind. 264, 3 N. E. 836, 54 Am. Rep. 312; Mayor and Aldermen of Birmingham v. Starr, 112 Ala. 98, 20 So. 424; St. Jos. & D. C. R. Co. v. Chase, 11 Kan. 47.
It was not error to exclude the answer of the mate of the Cordova to the question whether or not he was surprised, or had expected that the pin or the shackle would break. The purpose of the defendant was to show that it was not guilty of willfulness or wantonness in connection with the accident; but no such willfulness or wantonness was charged in the complaint, and no evidence was offered tending to suggest it.
Error is assigned to the denial of the defendant's application for a bill of particulars, and it is urged that the defendant was entitled to know the particulars of the plaintiff's employment and the place where he was at the time of the accident. The complaint alleged that the plaintiff was on a designated wharf in the employment of the owner thereof, and was performing the functions of his employment at the time when the steamship was unloading freight upon the wharf consigned to the owner, and the reply alleged that the plaintiff was lawfully performing his functions upon the wharf with the full knowledge and consent of the defendant. Section 908 of the Compiled Laws of Alaska of 1913 provides that, "when the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge or defense is not apparent, the court may require the pleading to be made definite and certain by amendment." The granting or refusing of a bill of particulars is a matter which rests in the discretion of the court, and the ruling thereon will not be disturbed on appeal, unless upon inspection of the whole record it appears that the refusal has resulted in injustice. Harper v. Harper (C. C. A.) 252 F. 39; Bodine v. First Nat. Bank of Merchantville (D. C.) 281 F. 571; Gimbel Bros. v. Adams Express Co. (D. C.) 217 F. 318.
The pleadings in the present case gave the defendant all necessary information as to the nature of the plaintiff's cause of action. The purpose of the bill of particulars which was sought was to obtain evidence. That method of securing evidence in advance of the trial is not permitted. Rev. Stats. § 861 (Comp. St. § 1468); Green v. Delaware, L. & W. R. Co. (D. C.) 211 F. 774. We find no abuse of discretion in the ruling on the motion.
Without merit is the contention that the complaint failed to state a cause of action. It alleged that the plaintiff was on the wharf in the performance of his duties to his employer, and it set forth facts sufficient to show that the defendant owed him the duty of ordinary care to protect him from injury. The evidence is clear that the Cordova expected some one to be on the wharf to receive its lines, and it is not disputed that the plaintiff was the first to catch the head line, and that he also assisted in drawing in the stern line. The facts alleged and proven show that he was neither a trespasser nor a mere licensee on the wharf. He was an employé of the company that owned the wharf, and there was evidence that he was required to serve at the wharf as "one of the longshoremen."
The defendant saved a general exception to a large number of the instructions which it designated only by number, but it expressed no ground of exception. Such exceptions are insufficient to comply with the rules of practice of the federal appellate courts, which require that the attention of the trial court shall be directed to the questions of law specifically involved. Highway Trailer Co. v. City of Des Moines, Iowa (C. C. A.) 298 F. 71; C. W. Young Co. v. Union Oil Co. of California (C. C. A.) 293 F. 742; Atlantic Coast Line R. Co. v. Raulerson (C. *212 C. A.) 267 F. 694; Jones v. United States (C. C. A.) 265 F. 235.
Error is assigned to the refusal of a requested instruction that the burden of proof was on the plaintiff to show the damages which he claimed he sustained, but the defendant overlooks the fact that the court said to the jury: "You are instructed that the burden is on the plaintiff, Katzeek, to prove the extent of the injuries, if any, that he sustained, and that he must prove the same by a preponderance of the evidence." Another request of the defendant was that the jury be instructed to return a verdict in its favor, and it is alleged that there was failure to prove the cause of action alleged in the complaint. The record convinces us, however, that there was evidence to go to the jury to sustain all the essential allegations of the complaint. There was evidence to show the use by defendant of defective appliances. There was evidence tending to show inexperience and incompetence in the manner in which the winchmen performed their services, and there was absence of evidence of contributory negligence on the part of the plaintiff.
The judgment is affirmed.
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1163V
Filed: September 18, 2019
UNPUBLISHED
WAYNE F. GRANT,
Petitioner,
v. Special Processing Unit (SPU);
Attorneys’ Fees and Costs
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Jimmy A. Zgheib, Zgheib Sayad, P.C., White Plains, NY, for petitioner.
Colleen Clemons Hartley, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
Dorsey, Chief Special Master:
On August 9, 2018, petitioner filed a petition for compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the “Vaccine
Act”). Petitioner alleges that he suffered a shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza (“flu”) vaccination administered on
October 4, 2017. Petition at 1. On August 23, 2019, the undersigned issued a decision
awarding compensation to petitioner based on the respondent’s proffer. ECF No. 28.
1 The undersigned intends to post this decision on the United States Court of Federal Claims' website.
This means the decision will be available to anyone with access to the Internet. In accordance with
Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or other information,
the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, the
undersigned agrees that the identified material fits within this definition, the undersigned will redact such
material from public access. Because this unpublished decision contains a reasoned explanation for the
action in this case, the undersigned is required to post it on the United States Court of Federal Claims'
website in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal
Management and Promotion of Electronic Government Services).
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
On September 4, 2019, petitioner filed a motion for attorneys’ fees and costs.
ECF No. 32. Petitioner requests attorneys’ fees in the amount of $25,756.80 and
attorneys’ costs in the amount of $712.49. Id. at 1. In compliance with General Order
#9, petitioner filed a signed statement indicating that petitioner incurred no out-of-pocket
expenses. Id. at 50. Thus, the total amount requested is $26,469.29.
On September 4, 2019, respondent filed a response to petitioner’s motion. ECF
No. 33. Respondent argues that “[n]either the Vaccine Act nor Vaccine Rule 13
requires respondent to file a response to a request by a petitioner for an award of
attorneys’ fees and costs.” Id. at 1. Respondent adds, however, that he “is satisfied the
statutory requirements for an award of attorneys’ fees and costs are met in this case.”
Id. at 2. Respondent “respectfully recommends that the Chief Special Master exercise
her discretion and determine a reasonable award for attorneys’ fees and costs.” Id. at
3.
Petitioner filed no reply.
The undersigned has reviewed the billing records submitted with petitioner’s
request. In the undersigned’s experience, the request appears reasonable, and the
undersigned finds no cause to reduce the requested hours or rates.
The Vaccine Act permits an award of reasonable attorneys’ fees and costs. §
15(e). Based on the reasonableness of petitioner’s request, the undersigned GRANTS
petitioner’s motion for attorneys’ fees and costs.
Accordingly, the undersigned awards the total of $26,469.293 as a lump
sum in the form of a check jointly payable to petitioner and petitioner’s counsel
Jimmy A. Zgheib.
The clerk of the court shall enter judgment in accordance herewith.4
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
3This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all
charges by the attorney against a client, “advanced costs” as well as fees for legal services rendered.
Furthermore, § 15(e)(3) prevents an attorney from charging or collecting fees (including costs) that would
be in addition to the amount awarded herein. See generally Beck v. Sec’y of Health & Human Servs.,
924 F.2d 1029 (Fed. Cir.1991).
4 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
2
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824 F.2d 980
Unpublished dispositionNOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.Ana M. ORTIZ, Petitioner,v.DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent.
Appeal No. 87-3004.
United States Court of Appeals, Federal Circuit.
June 19, 1987.
Before BISSELL, Circuit Judge, BALDWIN, Senior Circuit Judge, and ARCHER, Circuit Judge.
BALDWIN, Senior Circuit Judge.
DECISION
1
The decision of the Merit Systems Protection Board (board), Docket No. NY07528610236, removing Ana M. Ortiz (petitioner) from the position of field representative with the Social Security Administration on the basis of insubordination and absence without leave, is affirmed.
OPINION
2
Petitioner has challenged removal as so harsh and disproportionate to the offense as to constitute an abuse of discretion. The charges are not challenged.
3
The choice of penalty for employee misconduct is left to the sound discretion of the agency. The court will defer to the agency's choice of penalty unless its severity appears "totally unwarranted." Miguel v. Department of the Army, 727 F.2d 1081, 1083 (Fed.Cir.1984).
4
In light of the gravity of the charges sustained against petitioner, we find no abuse of discretion. The board has analyzed the relevant factors and determined that the penalty is within the bounds of reasonableness and bears a nexus to promoting the efficiency of the service. The board's decision is supported by substantial evidence and is not arbitrary, capricious, obtained without procedures required by law, rule or regulation, or otherwise not in accordance with law. Hayes v. Department of the Navy, 727 F.2d 1535, 1537 (Fed.Cir.1984).
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826 F.Supp.2d 979 (2011)
Shawn JOHNSON, Plaintiff,
v.
Keith BURNETT in his Individual and Official Capacity, John Does in their Individual and Official Capacities, and Hinds County, Defendants.
Civil Action No. 3:09-cv-00734-CWR-LRA.
United States District Court, S.D. Mississippi, Jackson Division.
March 23, 2011.
*980 Carlos E. Moore, Tangala L. Hollis, Moore Law Office, PLLC, Grenada, MS, Juan T. Williams, The Law Office of Juan T. Williams, PLLC, Southaven, MS, for Plaintiff.
ORDER GRANTING SUMMARY JUDGMENT
CARLTON W. REEVES, District Judge.
The above-styled cause is before the Court on Hinds County's Motion for Summary Judgment [Docket No. 57]. The Court has reviewed that filing, the briefs relevant thereto submitted by both parties, and all available evidence, and has concluded that the motion must be granted.
FACTS
Shawn Johnson brings the instant lawsuit alleging that on December 15, 2006, a Hinds County sheriff's deputy illegally assaulted him outside a night club under color of law. According to Johnson, he visited an establishment called The Spot but soon was escorted outside by someone wearing the uniform of a Hinds County sheriff's deputy. Once the pair exited the building, Johnson contends that he "was struck" by off-duty deputy Keith Burnett "and fell to the ground," after which Burnett kicked Johnson and "pushed [his] face into a hot vehicle." Eventually, Johnson claims, Burnett "put his foot on top of [Johnson's] head" and "placed [him] in handcuffs." Johnson also represents that he was "sprayed in the face with mace and/or `pepper spray'" before eventually being transported to the sheriff's office. Complaint [Docket No. 2] at 2.
In time, Johnson brought suit against Burnett and Hinds County in state court under Title 42, Section 1983 of the United States Code, alleging that "the Defendants. . . took actions to deprive [Johnson] of his due process rights under federal laws, equal protection rights under federal laws, and violated other of [Johnson's] civil rights under federal laws." Second Amended Complaint [Docket No. 14] at 3.
The case was removed to United States District Court for the Southern District of Mississippi by Hinds County on December 4, 2010 [Docket No. 1]. In time, the two defendants each moved for summary judgment Burnett on October 19, 2010 [Docket No. 19] and Hinds County on January 6, 2011. The Court granted Burnett's motion on March 17, 2011 [Docket No. 68], leaving Hinds County as the sole remaining defendant.
STANDARD OF REVIEW
Though motions for summary judgment are filed frequently, not every case is suited for such disposition. Summary judgment is appropriate only 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). The Court must view the evidence in the light most favorable to the non-moving party. Abarca v. Metro. Transit Auth., 404 F.3d 938, 940 (5th Cir.2005). When confronted with these motions, this Court focuses on "genuine" issues of "material" facts. An issue is genuine "if the evidence supporting its resolution in favor of the party opposing summary judgment, together with an inference in such party's favor that the evidence allows would be sufficient to support a verdict in favor of the party." Zisman v. Mason, 2008 WL 879726 at *3 (S.D.Miss.2008) (citing Amant v. Benoit, 806 F.2d 1294, 1297 (5th Cir.1987)). A fact is material if it is one *981 which might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Factual disputes that are irrelevant or unnecessary will not be considered. Id.
When filing a motion for summary judgment, "the moving party is not required to negate the elements of the nonmoving party's case." Lawrence v. Univ. of Texas Med. Branch at Galveston, 163 F.3d 309, 311 (5th Cir.1999). Moreover, the movant "need not prove a negative when it moves for summary judgment on an issue that the [respondent] must prove at trial. It need only point to an absence of proof on [the non-movant's] part." Celotex v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
Once the movant shows the court that it is entitled to judgment as a matter of law, the burden shifts to the resisting party to demonstrate that summary judgment is not proper. Id. As explained further by the Court in Walker v. J.E. Merit Constructors, Inc., 707 F.Supp. 254 (S.D.Miss. 1988):
The non-movant is then obligated to present competent evidence setting forth specific facts to illustrate the existence of a genuine issue of material fact for trial. . . . The resisting party may not create a genuine dispute simply by alleging that a dispute exists. . . . When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue is for trial. . . .
Id. at 257 (citations omitted) (emphasis added).
Pointing to and setting forth these specific facts is the responsibility of the non-movant, and a court has no duty whatsoever to sift through the record in search of evidence to support a party's opposition to summary judgment. Adams v. Travelers Indem. Co., 465 F.3d 156, 164 (5th Cir. 2006). See also Fuentes v. Postmaster Gen. of U.S. Postal Serv., 282 Fed.Appx. 296, 300 (5th Cir.2008) (citing Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir.1998)) (not only must the non-movant point to specific facts, he must "articulate the precise manner in which that evidence supports h[is] claim"). "`Conclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do not adequately substitute for specific facts showing a genuine issue for trial.'" Davis v. Louisville Mun. Sch. Dist., 2010 WL 290956, *2 (N.D.Miss.2010) (quoting Oliver v. Scott, 276 F.3d 736, 744 (5th Cir.2002)).
Additionally, "the court resolves factual controversies for purposes of summary judgment in favor of the nonmoving party, but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts." Zisman, 2008 WL 879726 at *3 (citing Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994)). Where there is no proof of contradictory facts, the Court will not assume that the nonmoving party could or would prove the necessary facts. Id. (citing Wallace v. Texas Tech. Univ., 80 F.3d 1042, 1048 (5th Cir.1996)).
This Court is ever mindful that, although a useful device, summary judgment "must be employed cautiously because it is a final adjudication on the merits." Jackson v. Cain, 864 F.2d 1235, 1241 (5th Cir. 1989); Hulsey v. State of Texas, 929 F.2d 168, 170 (5th Cir.1991). The jury has the responsibility to assess the probative value *982 of the evidence. As a consequence, a court must stay its hand on the question of credibility, and it must not weigh evidence or draw from the facts legitimate inferences for the movant. Strong v. Dept. of Army, 414 F.Supp.2d 625, 628 (S.D.Miss. 2005).
ANALYSIS
Under Section 1983, municipalities cannot "be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort." Monell v. Dept. of Soc. Serv. of City of New York, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In other words, a municipality will not suffer liability under Section 1983 pursuant to a traditional theory of respondeat superior. Id. However, a municipality that directly violates a constitutional right through "a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers" can be held liable under Section 1983. Id. at 690, 98 S.Ct. 2018.
In the case at bar, Johnson has provided an excerpt from the Hinds County Sheriff's Office Manual of General Orders which states that the policy of the office will be that "[a]ll subjects | {
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Case: 14-10699 Date Filed: 10/02/2014 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-10699
Non-Argument Calendar
________________________
D.C. Docket No. 9:13-cv-80080-KLR
INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS SYSTEM COUNCIL U-4,
Plaintiff - Appellant,
versus
FLORIDA POWER & LIGHT CO.,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(October 2, 2014)
Before TJOFLAT, JORDAN, and COX, Circuit Judges.
PER CURIAM:
Case: 14-10699 Date Filed: 10/02/2014 Page: 2 of 4
The facts of this case are well known to the parties. In short, Florida Power
& Light (“FPL”) revoked Michael Kohl’s unescorted nuclear access to its Turkey
Point nuclear power plant after Kohl was arrested for grand theft. FPL contends
that it was required to revoke Kohl’s unescorted nuclear access due to certain
Nuclear Regulatory Commission (“NRC”) regulations, which state that an
individual must be “trustworthy and reliable” to maintain unescorted access. The
International Brotherhood of Electrical Workers, System Council U-4 (“IBEW”)
filed a grievance on behalf of Kohl stating that “I Mike Kohl, request that my
Nuclear Access be reinstated and I be returned to work and made whole.” After
filing this grievance, the IBEW filed a Petition to Compel Arbitration in the United
States District Court for the Southern District of Florida. While this petition was
pending, FPL lifted its revocation of Kohl’s unescorted access after the state
dropped the grand theft charges. FPL then moved for the district court to dismiss
the case for want of subject matter jurisdiction because the case was moot. The
district court granted FPL’s motion, holding that “[s]ince there is no longer an
impediment to Kohl obtaining unescorted access, there is no effective relief the
Court could grant via arbitration.” (District Court’s Order, Doc. 27 at 2). IBEW
now appeals.
We review de novo a district court’s determination of subject matter
jurisdiction. Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1340
2
Case: 14-10699 Date Filed: 10/02/2014 Page: 3 of 4
(11th Cir. 2011). And we review de novo a district court’s order denying a motion
to compel arbitration. Musnick v. King Motor Co. of Fort Lauderdale, 325 F.3d
1255, 1257 (11th Cir. 2003).
IBEW’s contention that the district court could not determine whether the
underlying grievance itself is moot is without merit. Though cited by neither party,
the United States Supreme Court’s decision in Vaden v. Discover Bank, 556 U.S.
49, 62, 129 S. Ct. 1262, 1273 (2009), makes clear that “a federal court should
determine its jurisdiction by ‘looking through’ a [petition to compel arbitration] to
the parties’ underlying substantive controversy.” Id. (citing 9 U.S.C. § 4 (2012)).
If a district court lacks jurisdiction over the substantive controversy, it lacks
jurisdiction to compel arbitration. Id.
But here, the district court incorrectly determined that the underlying
controversy was moot. The district court acknowledged that IBEW’s grievance on
behalf of Kohl “specifically raises the issue of back pay and reinstatement at the
Turkey Point facility.” (Doc. 27 at 2). Thus, even if the issue of nuclear access is
moot, IBEW’s request that Kohl be returned to his previous job and receive back
pay is not.
In a footnote, the district court examined the issues of back pay and
reinstatement, indicating that back pay and reinstatement are “collateral effect[s] of
FPL’s application of NRC regulations and [are] unrelated to the collective
3
Case: 14-10699 Date Filed: 10/02/2014 Page: 4 of 4
bargaining agreement between FPL and IBEW.” (Doc. 27 at 2 n.1). On remand,
the district court should consider only whether the collective bargaining agreement
provides the arbitrator with authority to adjudicate this dispute, not issues that go
to the merits, such as whether the NRC regulations render FPL’s actions
unreviewable. See, e.g., International Bhd. of Elec. Workers Local 2150 v.
NextEra Energy Point Beach, LLC, --- F.3d ---, No. 13-3851, 2014 WL 3895757 at
*4 (7th Cir. Aug. 11, 2014) (“[W]e do not hold that the arbitrator may…review and
overturn [defendant’s] revocation of [plaintiff’s] unescorted access
privileges….[T]he arbitrator may well find the decision unreviewable….But the
potential weakness of [plaintiff’s] claim on the merits is no defense to the
arbitrability of this dispute, as a threshold question.”).
Consequently, we vacate the district court’s order denying IBEW’s Motion
to Compel Arbitration and remand the case to the district court with instructions to
determine whether FPL’s determination of “access rights” falls within the
arbitration provisions of IBEW and FPL’s collective bargaining agreement. See
Anders v. Hometown Mortg. Servs., Inc., 346 F.3d 1024, 1027 (11th Cir. 2003)
(citing Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444, 452, 123 S. Ct. 2402, 2407
(2003) (holding that “gateway matters,” such as the scope of an arbitration
provision, should be determined by courts and not arbitrators)).
VACATED and REMANDED WITH INSTRUCTION.
4
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884 F.2d 74
Henry HEWES, Plaintiff-Appellant,v.Robert ABRAMS, Attorney General of the State of New York,Intervenor-Appellee,New York City Board of Elections, Defendant-Appellee.
No. 1568, 89-7589.
United States Court of Appeals,Second Circuit.
Argued Aug. 28, 1989.Decided Sept. 1, 1989.
Henry Hewes, New York City, plaintiff-appellant, pro se.
Dennis J. Saffran, New York City, Asst. Atty. Gen. for the State of N.Y. (Robert Abrams, Atty. Gen. of the State of N.Y., of counsel), for intervenor-appellee.
Ellen B. Fishman, New York City, Asst. Corp. Counsel of the City of New York (Peter L. Zimroth, Corp. Counsel of the City of New York, of counsel), for defendant-appellee.
Before FEINBERG and NEWMAN, Circuit Judges, MISHLER, District Judge.*
PER CURIAM:
1
Pro se plaintiff-appellant Henry Hewes appeals from an order, entered on May 5, 1989, of the United States District Court for the Southern District of New York, Charles S. Haight, Jr., J., denying Hewes's motion for a preliminary injunction, and granting the cross-motion to dismiss of intervenor-appellee Robert Abrams. Appellant, who is the Right to Life Party candidate for Mayor of New York City and a would-be candidate in the Republican primary for that office, challenges the constitutionality of section 6-136(2) of the New York Election Law. This section requires a prospective candidate in a primary to present a petition signed either by five percent of the registered voters of that candidate's party, or 10,000 such voters, whichever is less, in order to be placed on the ballot. Appellant argues that section 6-136(2) allows a candidate from a party with a large enrollment--such as the Democratic Party--to qualify for the ballot with a number of signatures representing a substantially lower percentage of the total enrollment of that candidate's party than does a candidate from a party with a small enrollment. Appellant claims that section 6-136(2) thus violates the Equal Protection Clause by placing an undue burden on prospective candidates from minority parties. We affirm substantially for the reasons stated by Judge Haight in his thorough opinion, reported at 718 F.Supp. 163 (S.D.N.Y.1989).
*
Honorable Jacob Mishler, Senior United States District Judge for the Eastern District of New York, sitting by designation
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Matter of Teabout v Albany County Sheriff's Dept. (2020 NY Slip Op 00012)
Matter of Teabout v Albany County Sheriff's Dept.
2020 NY Slip Op 00012
Decided on January 2, 2020
Appellate Division, Third Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered: January 2, 2020
526922
[*1]In the Matter of the Claim of Michele A. Teabout, Appellant,
vAlbany County Sheriff's Department et al., Respondents. Workers' Compensation Board, Respondent.
Calendar Date: November 15, 2019
Before: Egan Jr., J.P., Clark, Devine and Aarons, JJ.
Law Firm of Alex Dell, PLLC, Albany (Nicholas A. Fusco of counsel), for appellant.
Walsh & Hacker, Albany (Peter J. Walsh of counsel), for Albany County Sheriff's Department and another, respondents.
Aarons, J.
Appeal from a decision of the Workers' Compensation Board, filed December 14, 2017, which denied claimant's request for reconsideration and/or full Board review.
In 1997, claimant sustained a work-related injury to her foot and a claim for workers' compensation benefits was established. The claim was subsequently amended twice to include other injuries. The self-insured employer thereafter raised the issue of whether claimant violated Workers' Compensation Law § 114-a and, following a hearing, a Workers' Compensation Law Judge found that claimant violated the statute. A penalty of a rescission of awards, as well as a disqualification of future awards, was imposed. In a September 2017 decision, a panel of the Workers' Compensation Board upheld the Workers' Compensation Law Judge's determination. Claimant submitted an application for reconsideration and/or full Board review. In a December 2017 decision, the Board denied the application. Claimant appeals. We affirm.
Initially, we note that claimant has appealed solely from the December 2017 decision denying her application for reconsideration and/or full Board review. As a consequence, our review is limited to whether the Board's denial of claimant's application was arbitrary or capricious or otherwise constituted an abuse of discretion (see Matter of Singletary v Schiavone Constr. Co., 174 AD3d 1240, 1242 [2019]; Matter of Oparaji v Books & Rattles, 168 AD3d 1209, 1209 [2019]; Matter of Ali v Liberty Lines Tr., 131 AD3d 1288, 1289 [2015]). On appeal, claimant directs her arguments towards her perceived errors with the Board's September 2017 decision. The merits of that decision, however, are not properly before us (see Matter of Duncan v Crucible Metals, 165 AD3d 1377, 1378 [2018]; Matter of Sheng v Time Warner Cable, Inc., 131 AD3d 1283, 1284 [2015], lv dismissed 26 NY3d 1060 [2015]). Because the record discloses no new evidence that was previously unavailable, no material change in condition or any failure by the Board to consider the relevant evidence in reaching its ultimate decision, we find that the denial of claimant's application for reconsideration and/or full Board review was not arbitrary, capricious or an abuse of discretion (see Matter of Seck v Quick Trak, 158 AD3d 919, 921 [2018]; Matter of Bland v Gellman, Brydges & Schroff, 151 AD3d 1484, 1489 [2017], lv dismissed and denied 30 NY3d 1035 [2017], cert denied ___ US ___, 139 S Ct 240 [2018]; Matter of Amaker v City of N.Y. Dept. of Transp., 144 AD3d 1342, 1343 [2016]).
Egan Jr., J.P., Clark and Devine, JJ., concur.
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16 F.3d 421NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.
C.H. PATRICK; Intertech; Sinochem International ChemicalsCo.; Sinochem Shandong Import & Export Corp.;and Kwong Fat Hong Chemicals, Ltd.,Plaintiffs-Appellants,v.The UNITED STATES, Defendant-Appellee,andSandoz Chemicals Corporation, Defendant.
No. 94-1006.
United States Court of Appeals, Federal Circuit.
Dec. 16, 1993.
1
APPEAL DISMISSED.
ORDER
2
The appellant having failed to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the rules, it is
3
ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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707 F.2d 1024
83-1 USTC P 9415
Reverend Joseph J. KLEINSASSER, Individually and on Behalfof Susie KLEINSASSER, deceased, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee.
No. 81-3625.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Dec. 9, 1982.Decided June 7, 1983.
Gregory R. Schwandt, Church, Harris, Johnson & Williams, Great Falls, Mont., for plaintiff-appellant.
Libero Marinelli, Jr., Washington, D.C., for defendant-appellee.
Appeal from the United States District Court for the District of Montana.
Before CHOY and FLETCHER, Circuit Judges, and MacBRIDE,* District Judge.
CHOY, Circuit Judge:
1
This is a tax-refund suit brought by Reverend Joseph J. Kleinsasser on behalf of himself and his now-deceased wife, Susie Kleinsasser. Reverend Kleinsasser (hereinafter "taxpayer") is a member of a tax-exempt religious organization that is subject to taxation in accordance with I.R.C. Sec. 501(d). Taxpayer argues that he is entitled to the investment tax credit provided by I.R.C. Sec. 38(a) on his 1972 and 1973 tax returns. The court below granted the Government's motion for summary judgment. Kleinsasser v. United States, 522 F.Supp. 460 (D.Mont.1981). Reluctantly, we affirm.I. Background
2
The taxpayer is a member of the Milford Colony in Wolf Creek, Montana. Milford Colony is an incorporated Hutterite community and a unit of the Hutterische Church Society. This society, which dates back to the early 1500's, is an organization of Protestant Christians who live a communal life in colonies of between 80 and 100 members. There are over 30 such colonies in Montana. Colony members take a vow of poverty and engage in agricultural pursuits. Since the individual Hutterites have no personal property, all expenses, both communal and individual, are paid out of a common treasury.
3
The Hutterites do not vote, but they do participate in civic activities that do not conflict with their religion. They do not accept old age pensions, social security payments and the like from the government because they choose to care for their own aged and disabled. The Hutterites accept the legitimacy of taxation and have a consistent record as conscientious taxpayers.
4
Religious communities such as Milford Colony are tax exempt under I.R.C. Sec. 501(d), which provides:
Religious and Apostolic Organizations
5
The following organizations are referred to in subsection (a) [which allows tax exemption]: Religious or apostolic associations or corporations, if such associations or corporations have a common treasury or community treasury, even if such associations or corporations engage in business for the common benefit of the members, but only if the members thereof include (at the time of filing their returns) in their gross income their entire pro rata shares, whether distributed or not, of the taxable income of the association or corporation for such year. Any amount so included in the gross income of a member shall be treated as a dividend received.
6
Accordingly, members of Sec. 501(d) organizations file individual tax returns, and pay income tax on their pro rata shares of organization income. The organization itself must file a partnership tax return, even though it pays no tax. Treas.Reg. Sec. 1.6033-2(e).
7
I.R.C. Sec. 38(a) allows an investment tax credit for certain acquisitions of depreciable property. Such property is called "section 38 property." Farm equipment and machinery purchased by the Colony in 1972 and 1973 would have definitely qualified for the Sec. 38(a) credit but for I.R.C. Sec. 48(a)(4). Section 48(a)(4) excludes from section 38 property treatment "[p]roperty used by an organization ... which is exempt from the tax imposed by this chapter [i.e., the income tax]" unless the property is used in "an unrelated trade or business the income of which is subject to tax under section 511." Taxpayer's refund-suit contention is that Sec. 48(a)(4) does not preclude a member of a Sec. 501(d) organization from taking a pro rata tax credit on otherwise qualifying Colony purchases.
II. Discussion
8
Taxpayer's argument for allowance of a pro rata share of an investment tax credit may be summarized as follows: When Congress excluded property used by tax-exempt organizations from Sec. 38(a) tax-credit treatment, it did not mean to deny tax credits to taxpaying members of Sec. 501(d) organizations. This is because Sec. 501(d) organizations are actually partnerships, and should be taxed accordingly. Eligibility for tax credits is also established by reference to the congressional intent behind both the tax credits and the reasons for excluding property used by tax-exempt organizations from Sec. 38(a) investment tax-credit treatment.
9
This argument fails because of the unambiguous language of the relevant statutes and regulations.
10
A. Characterization of Section 501(d) Organizations
11
Section 501(d) was intended to provide tax relief for religious organizations that have a common or communal treasury. Without Sec. 501(d), the income of a religious corporation such as the Milford Colony would be subject to the regular corporate income tax at the corporate level, and, if distributed to organization members, the individual income tax at the shareholder level. If the corporate income were not distributed, the corporation would pay both the corporate income tax and the accumulated earnings tax. Section 501(d) eliminates the corporate level of taxation and leaves a single tier of individual income taxation. The scanty legislative history suggests that this single tier of taxation was believed to be the fair way to tax members of Sec. 501(d) organizations.1
12
Taxpayer argues that Sec. 501(d) creates a form of partnership. As such, the members of a Sec. 501(d) organization should be taxed as partners. Although the Sec. 501(d) organization itself is tax exempt, the individual members are not, and are thus not precluded from taking advantage of the Sec. 38(a) investment tax credit.
13
Taxpayer advances a variety of arguments to compel the conclusion that Sec. 501(d) organizations are, in fact, partnerships. He stresses that the Internal Revenue Service has tacitly deemed Sec. 501(d) organizations to be partnerships by requiring them to file partnership tax returns. By contrast, all Sec. 501(c) tax-exempt organizations (charitable organizations) file a special Form 990 return. Treas.Reg. Sec. 1.6033-2(a). The liability for members of Sec. 501(d) organizations is determined through application of partnership accounting principles. Even this court once suggested that Congress intended to create "an association somewhat akin to the ordinary association or partnership in which each member has a definite, though undivided, interest in the business conducted for the common benefit of the members, as well as a common interest in the community treasury and property," although these comments were labeled "gratuitous remarks." Riker v. Commissioner, 244 F.2d 220, 230 (9th Cir.) (discussing the 1939 Code predecessor of Sec. 501(d)), cert. denied, 355 U.S. 839, 78 S.Ct. 50, 2 L.Ed.2d 51 (1957). Accordingly, taxpayer argues that he should be treated as a partner of an ordinary partnership and allowed his pro rata share of an investment tax credit.
14
There is no question that Sec. 501(d) organizations bear a fair resemblance to that entity known as a partnership. But under the applicable statutes, Sec. 501(d) organizations simply cannot be characterized as partnerships.
15
The mere filing of a partnership return does not turn a Sec. 501(d) organization into a partnership. Blume v. Gardner, 262 F.Supp. 405, 413-14 (W.D.Mich.1966), aff'd, 397 F.2d 809 (6th Cir.1968). The partnership tax return allows the Internal Revenue Service to determine how much income must be reported by organization members. It is not a concession of partnership status.
16
More substantively, the Code defines "partnership" in such a way that Milford Colony cannot possibly qualify:
Partnership and partner
17
The term "partnership" includes a syndicate, group, pool, joint venture, or other unincorporated organization, through or by means of which any business, financial operation, or venture is carried on, and which is not, within the meaning of this title, a trust or estate or a corporation; and the term "partner" includes a member in such a syndicate, group, pool, joint venture, or organization.
18
I.R.C. Sec. 7701(a)(2) (emphasis added). The Milford Colony was organized as a Montana corporation on November 26, 1946, and has remained incorporated since. | {
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720 P.2d 704 (1986)
Lisa Jo MORELLI, Appellant,
v.
Robert J. MORELLI, Respondent.
No. 16705.
Supreme Court of Nevada.
June 26, 1986.
*705 Edward B. Horn, Reno, for appellant.
Bradley & Drendel, Thomas Drendel, Reno, for respondent.
OPINION
PER CURIAM:
This appeal arises out of a settlement agreement between respondent and appellant's mother (hereinafter wife), entered into in March 1977. The settlement agreement was later ratified, approved and incorporated as part of the decree of divorce. That agreement provided that respondent would pay alimony to the wife until 1982. The alimony payment included funds for child support. The agreement also provided that in the event of the wife's death or remarriage, respondent would remain obligated to pay $475 per month per child for child support.
The agreement further specified that respondent would pay child support until each child reached the age of majority, died, married or was emancipated, provided, however, that such payments would continue until twenty-two years of age for each child who attended college and maintained a "C" average or better.
Finally, the agreement provided that respondent would also pay the costs of tuition for college "as the parties may reasonably agree upon as the college or other school most appropriate for attendance by such child or children."
At the time the agreement was entered into, appellant was fourteen years old. The wife died about two years later. After living for a time with respondent, appellant decided to move in with another family. At that time, respondent paid the family $5,400 for appellant's support until she turned eighteen. After appellant's eighteenth birthday, respondent paid no additional child support. Appellant started college in the fall after graduation from high school. She always maintained better than a "C" average.
The district court found that respondent was responsible for the costs of appellant's tuition, but was not responsible for child support arrearages due, in part, to appellant's lack of standing to enforce such payments. For the reasons set forth below, we reverse and remand to the district court.
Appellant contends that she does have standing to enforce the provisions of the property settlement agreement. We agree. It is clear that appellant is an intended third party beneficiary of the agreement between her parents. Lipshie v. Tracy Investment Co., 93 Nev. 370, 566 P.2d *706 819 (1977). It is also clear that the agreement includes specific provisions in case of the wife's death. Normally courts are reluctant to give children standing to enforce the payment of child support because the party directly entitled to receive such payments, usually the custodial parent, is responsible for managing the child's financial needs and accordingly, should and ordinarily would seek enforcement. However, courts have recognized that special circumstances may arise that give the child standing. In Drake v. Drake, 89 A.D.2d 207, 455 N.Y.S.2d 420 (1982), the Supreme Court of New York addressed the case of a child who sued to enforce the terms of a separation agreement between her parents. In that case, the court determined that the child lacked standing, however, the court stated:
We have no doubt that circumstances may arise, such as death or disability, or outright refusal of a contracting parent to seek enforcement of periodic support provisions for a child, which would give a child the necessary standing to enforce the agreement.
Id., 455 N.Y.S.2d at 424. The special circumstances giving rise to the recognition of standing in a child to enforce an order of support exist in the case before us. We conclude that appellant has standing.
Respondent entered into a contract wherein he agreed to pay child support. There is no evidence in the record of any defense that would relieve respondent of his responsibilities under that contract. The agreement specifically provides that respondent will pay child support until each child reaches the age of twenty-two if the child attends college and maintains at least a "C" average. The evidence in the record shows that appellant fulfilled these requirements. Generally, a contract will be interpreted in accordance with the intentions of the parties. See Club v. Investment Co., 64 Nev. 312, 182 P.2d 1011 (1947). Nevertheless, respondent asks this Court to uphold the decision of the trial court as to child support because appellant did not communicate with him and he did not know she was in college. The uncontroverted evidence reflects, however, that respondent wanted no contact from his daughter. In Mohr Park Manor, Inc. v. Mohr, 83 Nev. 107, 424 P.2d 101 (1967), this Court stated, "an interpretation which makes the contract or agreement fair and reasonable will be preferred to one which leads to harsh or unreasonable results." Id. at 112, 424 P.2d 101. To excuse respondent of his contractual obligation due, in part, to his own desire not to have any communication from his daughter would be unreasonable. Therefore, respondent has a contractual duty to pay appellant $475 per month from the time she was sixteen to the time she reached the age of twenty-two.
Finally, the contract also provides that respondent will "pay the cost of tuition for the college or other school as the parties may reasonably agree upon as the college or other school most appropriate for attendance by such child or children." That provision requires the reasonable agreement of the parties. However, the parties are the husband and wife. Once the wife died, the provision could no longer operate. Respondent contends that appellant, as a third party beneficiary, steps into the shoes of the wife. Such an interpretation is a misstatement of the law. A third party beneficiary who seeks to enforce a contract does so subject to the defenses that would be valid as between the parties. Britton v. Groom, 373 P.2d 1012 (Okl. 1962). However, the wife's death makes the compliance with that provision impossible it does not shift the responsibility to appellant. Therefore, the district court was correct in finding that respondent is liable to appellant for the costs of her tuition.
In accordance with the foregoing, respondent must pay $475 per month in child support for ten months of 1979, all of 1980, all of 1981, all of 1982, all of 1983 and seven months of 1984. This amounts to 65 months at $475 per month for a total of $30,875 in child support. Respondent paid $5,400 of the $8,075 due for appellant's support for the seventeen months before *707 she turned eighteen. We, therefore, conclude that respondent should receive an offset in the amount of $5,400 against the total child support owed.
However, when an amount is due under a contract and it is not paid when due, interest is payable. NRS 99.040 provides:
When there is no express contract in writing fixing a different rate of interest, interest must be allowed at the rate of 12 percent per annum upon all money from the time it becomes due.
This means that each of the child support payments should accrue interest from the date each payment was due.
We therefore remand this case to the district court for a determination of interest owing on the child support arrearages and for entry of judgment consistent with this opinion.[1]
NOTES
[1] Justice Cliff Young voluntarily recused himself from consideration of this case and took no part in its disposition.
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166 Ga. App. 812 (1983)
305 S.E.2d 656
MALLORY
v.
THE STATE.
65991.
Court of Appeals of Georgia.
Decided June 6, 1983.
David J. Kelly, for appellant.
Thomas H. Pittman, District Attorney, Robert C. Wilmot, Assistant District Attorney, for appellee.
McMURRAY, Presiding Judge.
Defendant and a co-defendant were indicted for the offenses of armed robbery and kidnapping. In separate counts both defendants were indicted as recidivists, and the co-defendant was indicted for the offense of possession of a firearm by a convicted felon. A motion for severance was filed and granted and the defendant and co-defendant were tried separately. One of the defendant's defenses was that he was an unwilling accomplice with reference to the entire occurrence which was due solely to the actions and conduct of his *813 co-defendant. He was convicted and sentenced as to the three counts against him and now appeals. Held:
1. Where, in a legal investigation, conversations and similar evidence are facts to explain conduct they are admitted in evidence, not as hearsay, but as original evidence. See OCGA § 24-3-2 (formerly Code § 38-302). During the course of the trial, a detective was allowed to testify as to the facts and circumstances surrounding his investigation of the armed robbery and kidnapping of the service station employee involved here. He related several conversations he had with various police officers and other persons in an effort to learn the identity of the defendant. The state clearly offered the statements given to the detective only to explain his conduct and to ascertain his motives for the arrest of the defendant, and the trial court properly instructed the jury to consider those statements only for that purpose. See Bennett v. State, 49 Ga. App. 804 (176 SE 148); Davis v. State, 242 Ga. 901, 906 (6) (252 SE2d 443).
However, counsel continued to object to the alleged hearsay of the detective in setting forth his investigation to learn the identity and location of the defendant and co-defendant. The detective had obtained information by talking to a third individual. The detective was then asked what did he do after talking to the third party and learning that the person identified as Mike was with the co-defendant on the morning of the robbery. The detective did not properly respond to the question but injected that this third individual had informed him that on the night of the robbery the co-defendant "had called from Tifton, Georgia, here and told him that him and Mike had robbed an old man in Tifton at a service station and that he had wrecked his car and he wanted him to come after him." Whereupon, counsel moved for mistrial in the absence of the jury contending that these were various out of court statements made by several other individuals not directly involved in this case, that is, hearsay upon hearsay as to what the co-defendant whose trial had been severed had told the third party who in turn told the detective. No objection was made that the answer was not responsive to the question asked but objection was that it also was in violation of Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476), and Hamilton v. State, 162 Ga. App. 620 (1) (292 SE2d 473). During rebuttal the co-defendant was called as a witness and testified against this defendant. The sole enumeration with reference to the motion for mistrial is that the trial court erred in allowing hearsay testimony. This testimony was offered for the avowed purpose of explaining the witness' conduct. This enumeration of error is not meritorious even though it is quite clear that this evidence was injected into the case by the detective and was prejudicial. Nevertheless, the trial court so *814 instructed the jury that the testimony would be considered not for the truth of the matter stated but only as it may tend to explain the conduct of this witness. In Bell v. State, 141 Ga. App. 277 (2) (233 SE2d 253), this court considered a police officer's testimony relevant to a conversation with an informant in which the informant related another conversation which he had overheard, and based on Lloyd v. State, 139 Ga. App. 625 (2) (229 SE2d 106); and Braden v. State, 135 Ga. App. 827, 829 (3) (219 SE2d 479), and the original evidence law (OCGA § 24-3-2 (Code Ann. § 38-302), supra) it was not error when the court properly instructed the jury as to such testimony. The admission of such evidence was not subject to the objection made. There is no merit in this complaint.
2. Defendant next contends that the trial court erred in failing to instruct the jury on all of the lesser included offenses of armed robbery even though there was a timely written request for such instruction. He contends that the cases of Lockett v. State, 153 Ga. App. 569, 570 (1) (266 SE2d 236); and Huffman v. State, 153 Ga. App. 203 (2) (265 SE2d 603), require a reversal based upon the written request to charge. First of all, the only request to charge filed in this case was a request that the court charge as to the offense of robbery, that is, by the use of force, intimidation or by sudden snatching. We find no such request as to any lesser included offenses as to armed robbery. Clearly the charge of armed robbery here was based upon the use of an offensive weapon showing the taking of property of another from the person and the immediate presence of another by use of such offensive weapon, a revolver. In Holcomb v. State, 230 Ga. 525, 527 (198 SE2d 179), the Supreme Court held robbery by intimidation was a lesser included offense of armed robbery and held it would not be error to fail to charge on robbery by intimidation if the evidence did not "demand" a charge on that offense, citing Smith v. State, 228 Ga. 293, 294 (185 SE2d 381). In the case sub judice, all the evidence proved the greater offense of armed robbery. Consequently, the trial court did not err in failing to charge on the lesser included offense of robbery by intimidation. See Clempson v. State, 144 Ga. App. 625, 626-627 (3) (241 SE2d 495); Jordan v. State, 239 Ga. 526, 527 (2) (238 SE2d 69). There is no merit in this complaint.
3. The court did not err in failing to specifically charge the jury on the law of justification and coercion inasmuch as the charge and the evidence as a whole adequately and fairly presented the defendant's theories of the case, that is, that he was only incidentally involved in the commission of the crimes (armed robbery and kidnapping). The defendant's testimony was not that he was coerced into commission of the crime, but that the co-defendant on his own initiative had robbed the victim and forced him into the automobile *815 and that he (defendant) was at all times attempting to talk the co-defendant out of committing the crime and that he had nothing to do with either the robbery or the kidnapping. We note here that the trial court fully charged that each essential element of the crime must be proven by the state beyond a reasonable doubt; defendant is innocent until proven guilty; the mere presence of the defendant at the scene would not be sufficient to convict; and mere suspicion that he had committed a crime would be insufficient to convict. Consequently, we find no merit in this complaint. We also note that as in Booker v. State, 247 Ga. 74 (274 SE2d 334), an affirmative defense need not be specifically charged if the case as a whole is fairly presented to the jury.
Judgment affirmed. Shulman, C. J., and Birdsong, J., concur.
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704 F.Supp.2d 600 (2010)
Donald A. BOOS, Raymond D. Johnson, and Wanda N. Myers, on behalf of themselves and all other persons similarly situated, Plaintiffs,
v.
AT & T, INC., BellSouth Corporation, and the BellSouth Telephone Concession Plan, Defendants.
Civil Action No. SA-07-CA-727-XR.
United States District Court, W.D. Texas, San Antonio Division.
March 18, 2010.
David Weiser, Jeremy D. Wright, Kator, Parks & Weiser, P.L.L.C., Max Renea Hicks, Law Office of Max Renea Hicks, Austin, TX, Marc I. Machiz, Cohen Milstein Sellers & Toll, PLLC, Philadelphia, PA, Michelle C. Yau, Robert Joseph Barton, Cohen, Milstein, Hausfeld & Toll, P.L.L.C., Washington, DC, for Plaintiffs.
Deborah E. Hryb, Patrick W. Shea, Paul, Hastings, Janofsky & Walker LLP, New York, NY, Geoffrey Amsel, AT & T Legal Department, Dallas, TX, for Defendants.
*601 ORDER
XAVIER RODRIGUEZ, District Judge.
On this date, the Court considered Defendants AT & T, Inc.'s and BellSouth Corporation's Motion for Summary Judgment (docket no. 79), Plaintiffs' Motion for Partial Summary Judgment (docket no. 81), and the responses and replies thereto. The issue presented in both motions is whether a benefit known as "telephone concession" provided to BellSouth retirees living outside of Defendants' service area is an ERISA pension plan. After careful consideration, the Court finds that Plaintiffs have failed to conclusively establish that the plan is an ERISA pension plan or to raise a material issue of fact with regard to the issue. The Court will therefore deny Plaintiffs' Motion for Partial Summary Judgment and will grant Defendants' Motion for Summary Judgment.
I. Factual and Procedural Background
A. Telephone Concession
The summary-judgment evidence indicates that telephone concessionthe practice of offering free or discounted telephone land-line services and toll reimbursements as a concession to telephone company employees and retireeshas been in use since at least the 1920s. Def. ex. 1. Documents from the 1950s indicate that telephone concession was provided by "Ma Bell" to its employees so that the company could reach supervisors and employees responsible for providing services, to build morale, to allow employees to become familiar with the product in order to promote the product, and to obtain constructive criticism from employees about the product. Def. Ex. 2; Def. Ex. 3. Though there were variations among the local operating companies, Ma Bell generally offered Class A Concession, a100% discount on charges for local exchange services and installation and a reasonable amount of toll service for management and supervisory employees, employees with thirty or more years of service and retirees on a pension, and corporate directors, and Class B Concession, a 50% discount on the charges for local exchange service and installation (with variations on toll reimbursement) for all other employees after six months of service. Def. Ex. 3 at ATTBS0000858. Ma Bell did not consider concession to be taxable income for its employees, and no amount of concession had been treated as compensation to the persons using the service. Def. Ex. 3 ATTBS000855-881.
At least by 1982, before the 1984 court-ordered divestiture, Ma Bell had also extended a reimbursement to certain retirees who resided outside Bell's service area and thus could not receive discounted service. Def. Ex. 4 at ATTBS0001211-16. Also by this time, Ma Bell viewed telephone concession as a benefit for its retirees. Def. Ex. 4 ATTBS0001211; Def. Ex. 4 ATTBS0001215 (processing of concession was handled by the "Employees Benefit Committee."). The summary-judgment evidence also indicates that Ma Bell and its employees viewed telephone concession as part of employees' compensation.
Court-ordered divestiture of Ma Bell occurred in 1984, and BellSouth Corporation was created as one of seven separate regional Bell operating companies, consisting of the Southern Bell and South Central Bell telephone operating companies. Docket no. 79 at 5. BellSouth implemented a concession program, and concession under BellSouth's plan was considered a benefit to employees and retirees. Def. Ex. 5 ATTBS0001169-79. The evidence shows that BellSouth has had a single policy document governing concession for in and out-of-region employees and retirees.
The 1984 concession plan sets forth the policy of BellSouth "to reimburse its employees, *602 retirees and directors (active and retired) for all or a portion of the amounts charged for residence local exchange services and intra-LATA toll service"[1] and "to provide residence equipment to employees at a discount." Def. Ex. 5 ATTBS0001169. The 1984 plan stated that "[a]ll nonmanagement employees, entry level management employees and all retirees may be reimbursed for all or a portion of the amounts charged for basic local exchange service[2] provided for the benefit of the employee/retiree and his immediate family." Def. Ex. 5 ATTBS0001170. Entrance level managers and non-management employees with six months but less than thirty years of service were reimbursed for 40% of the amounts charged for all local services; employees with thirty or more years of service, all retirees, and all management employees were reimbursed for 100% of the amount charged for basic local service and 40% of the amounts charged for additional residence exchange services; certain higher level managers were reimbursed for 100% of amounts charged for all reasonable and adequate local service at one location; and active and retired officers and directors would be reimbursed for 100% of amounts charged for all reasonable local service at two locations. Def. Ex. 5 ATTBS0001170. With regard to concession reimbursements for persons residing out of BellSouth's service area, the Plan provided that "[a]ll active employees, retirees, and directors residing in the territory of a telephone company not a part of BellSouth Corporation . . . receive the same reimbursements as those described" for in-region employees, retirees, and directors. Def. Ex. 5 ATTBS0001170. Further, "[r]etirees [were] entitled to the same local service reimbursement as they received prior to retirement; however, in no case, anything less than 100% reimbursement for basic local service." Id. Employees and retirees were also eligible for various intra-LATA toll discounts and equipment discounts. Non-management employees with six months but less than thirty years of service received 20% of an amount up to $25.00 of eligible intra-LATA calls per month; non-management employees with thirty years of service and all non-management retirees were reimbursed 100% of an amount up to $25.00 of eligible intra-LATA calls per month; management employees and retirees were reimbursed for 100% of up to $50.00 of eligible intra-LATA calls per month; and active and retired officers and directors received 100% reimbursement on all reasonable, eligible intra-LATA calls. Id. All retirees could purchase any type of equipment "at the appropriate discount." Id. ATTBS0001171. To receive concession, employees submitted their telephone bills, and were reimbursed on their paycheck. Def. Ex. 5, ATTBS0001172. Retirees forwarded their bills to the Corporate Benefit Office serving them, where a "Sundry Expense Voucher" would be prepared for reimbursement. Def. Ex. 5 ATTBS0001172.
BellSouth issued a revised policy on telephone concession, effective April 1, 1985. Def. Ex. 7. The 1985 document states that it is the policy of BellSouth "to allow all the employees and retirees . . . an appropriate discount on the regular tariff rate for residence local exchange services provided *603 by Southern Bell and South Central Bell, including related non-recurring charges and intra-LATA toll service." Id. ATTBS0001316. It provided that "[a]ll employees and retirees may be furnished local exchange service at discounted rates for the benefit of the employee/retiree and his immediate family for usual residential purposes at one location." Def. Ex. 7 ATTBS0001317. All employees with six months but less than thirty years of service received a 40% discount on local services; employees with thirty years of service and those retiring after April 1, 1985 received a 100% discount on "the central office line, one additional listing, touchtone, custom calling features and customer line charge" and a 40% discount on all additional concession-eligible services; post-divestiture retirees (retired between January 1, 1984 and April 1, 1985) received a 100% discount on "the central office line, one additional listing, touchtone, custom calling features and customer line charge"; and pre-divestiture retirees received the same concession for which they were eligible under the plan applicable at divestiture. Id. ATTBS0001317. All employees with thirty years of service and retirees could also receive 100% discount on non-recurring charges associated with concession-eligible services, while other employees received a 40% discount. Id.
Further, the 1985 plan provided that "[a]ll employees, and retirees may be furnished a toll service discount on intra-LATA calls for the benefit of the employee/retiree and his immediate family for the usual residential purposes at one location." Def. Ex. 7 ATTBS0001318. All employees with six months but less than thirty years of service received an amount up to $25. | {
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994 A.2d 1039 (2010)
202 N.J. 43
LAKE VALLEY ASSOCIATES, LLC.
v.
TOWNSHIP OF PEMBERTON.
C-873 September Term 2009, 065618.
Supreme Court of New Jersey.
May 7, 2010.
Petition for Certification Denied.
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382 F.2d 29
Barbara DANIELS, Appellant,v.Gerald VAN DE VENTER, Dennis Peterson, and Reed Miller, appellees.
No. 9325.
United States Court of Appeals tenth Circuit.
Sept. 8, 1967.
John S. Carroll, Denver, Colo., for appellant.
Wesley H. Doan, of Yegge, Hall, Treece & Evans, Denver, Colo., for appellees.
Before MURRAH, Chief Judge, and HILL and SETH, Circuit Judges.
SETH, Circuit Judge.
1
This is an action for damages brought under the Civil Rights Act, 42 U.S.C. 1983, against two police officers. The case was tried to a jury which returned a verdict for the defendants, and plaintiff has taken this appeal.
2
Appellant asserts that the trial court erroneously instructed the jury on several issues, and erroneously admitted certain evidence.
3
The claim of the appellant arose out of an incident which took place outside her hom during which she and a man with whom she had just driven home engaged in a loud argument and a scuffle. The police were called by appellant's children who were at the house, and the officers who responded are the appellees herein. The officers observed the scuffle and the loud argument which continued despite the officers' efforts to stop it. Finally they arrested appellant, during which she resisted with considerable determination, and took her to jail. There she was advised of the amount of bail and was allowed to call relatives. Bail was not made however until after a delay of several days, and tereafter she appeared before a magistrate.
4
Appellant alleged that her constitutional rights were violated during the course of her arrest, by the failure of the officers to advise her of her rights, by a failure to take her before a magistrate promptly, by fixing bail in an improper manner, and related grounds.
5
On appeal the issues raised by appellant first concern the ruling of the trial judge on cross-examination permitting questions to be asked of appellant concerning her relationship with the man with whom she was having the argument when arrested. She was so asked whether the man stayed at her house frequently since March of the same year, March being the month during which she testified she became reacquainted with this man. The attorney for appellant strongly objected to this question and to a question seeking to develop how frequently he stayed there. The court permitted the questions and appellant answered them, and also testified that she had once called the police 'on him' apparently when he was at her house. The appellant here urges that this evidence so admitted by the trial judge was immaterial and was grossly prejudicial.
6
This evidence, we hold, was properly admitted. It served to explain the incident, and was otherwise relevant under her complaint which, among other causes, seeks exemplary damages by reason of her having been '* * * greatly humiliated and held up to public scorn and derision as a result of defendants' acts.' The plaintiff-appellant requested an instruction on punitive damages which was given and it refers to fraud, malice, insult, or wanton and reckless disregard of plaintiff's rights and feelings. The facts surrounding the incident, and the good faith of the defendants must be developed upon such a claim. Also good faith and probable cause in making an arrest are defenses which may be raised under section 1983 of the Civil Rights Act. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (U.S. April 11, 1967). As the trial court said when appellant objected to the questions on the ground of relevancy: '* * * this matter as I view it is admissible insofar as it gives character to what occurred on the day in question. * * * What has gone before explains in some way what occurred on the day in question as I view it. I would receive it for that purpose.'
7
The police officers testified when they arrived the appellant and the man were fighting in a car in her driveway or at least the man was defending himself from her blows. They took the man out of the car, and he tole them they had been fighting earlier that evening, and that they were not married. The appellant insisted that the man not leave, and that she would sign a complaint against him if he left. Also according to their testimony she made more remarks about him, and finally locked herself in his car. The officers got her out after some effort and conversation, but more difficulties arose when she went into the house, where the officers testified they thought she was going to commit suicide. She was finally arrested, handcuffed, and taken to jail. In view of what the testimony shows that the officers then knew about her companion at the time, and in view of the complaint, the evidence concerning their relationship was material for the purpose the trial court indicated and on the arrest generally.
8
The appellant argues that the instructions given by the trial court were erroneous in several respects, but we have carefully examined the instructions and find no error.
9
The instructions when considered as a whole do not permit the jury to regard everything following the arrest to be legal if the arrest was legal, as appellant contends they do.
10
The instructions were also proper as to intent. We held in Stringer v. Dilger, 313 F.2d 536 (10th Cir.), that intent is not a necessary element to be shown, but as in any tort action a defendant in an action under section 1983 of the Civil Rights Act is responsible for the natural consequences of his acts. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492; Pierson v. Ray, supra. The court in its instruction did say, '* * * you are called on to determine whether or not the defendants knowingly, intentionally, that is, with knowledge, that they were doing these unlawful acts. * * *' The instruction as a whole is a proper one on this point, and the word 'intentionally' was adequately explained. The instruction was in accordance with the precedents.
11
The appellant also urges that the instructions were erroneous as they related to the manner in which the bond was set. The complaint of appellant was not as to the amount of the bond, but that it was not set personally be a magistrate. It appears instead that bond was fixed in amount, and appellant so advised shortly after her arrest, by a police officer in accordance with standing instructions of a magistrate. The trial court properly instructed on this problem, and did not instruct, as appellant contends, that bond could be so fixed.
12
The charge to the jury relative to the appearance of appellant before a magistrate, and to the testimony of the officers at other hearings was not in error.
13
The appellant tendered instructions which were not given, and it is here asserted that the trial court's refusal of these instructions was error. The instructions as given by the court however clearly and adequately covered the issues.
14
Affirmed.
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15-57-cv
In re Application of Gorsoan Ltd., et al. v. Bullock, et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
8th day of June , two thousand sixteen.
Present:
PETER W. HALL,
GERARD E. LYNCH,
DENNY CHIN,
Circuit Judges.
____________________________________________________
IN RE APPLICATION OF GORSOAN LIMITED AND
GAZPROMBANK OJSC FOR AN ORDER PURSUANT TO
28 U.S.C. 1782 TO CONDUCT DISCOVERY,
Plaintiff–Appellee,
v. No. 15-57-cv
JANNA BULLOCK, STUART ALAN SMITH, RIGROUP LLC,
ZOE BULLOCK REMMEL,
Defendants-Appellants.
_____________________________________________________
For Plaintiff-Appellee: Kenneth S. Leonetti, Caroline S. Donovan,
Foley Hoag LLP, Boston, Mass.
For Defendants-Appellants: Janna Bullock, pro se, New York, NY.
Stuart A. Smith, pro se, New York, NY.
Zoe Bullock Remmel, pro se, New York,
NY.
RIGroup LLC, pro se, New York, NY.
______________________________________________________________________________
Appeal from an order of the United States District Court for the Southern District of New
York (Gardephe, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the appeal of RIGroup LLC is DISMISSED and the orders of the district court
are AFFIRMED.
Appellants Janna Bullock, Stuart Alan Smith, RIGroup LLC, and Zoe Bullock Remmel,
proceeding pro se, appeal two orders of the district court. The first order denied Appellants’
motion to quash subpoenas issued pursuant to 28 U.S.C. § 1782, which permits parties interested
in certain foreign legal proceedings to use United States district courts to compel discovery in aid
of those proceedings. 28 U.S.C. § 1782; Certain Funds, Accounts and/or Inv. Vehicles v.
KPMG, L.L.P., 798 F.3d 113, 114-15 (2d Cir. 2015). Appellees Gorsoan Limited and
Gazprombank OJSC sought assistance from the district court to order discovery from the
Appellants for use in a fraud action filed in Cyprus. The second order denied reconsideration of
the first order. We assume the parties’ familiarity with the underlying facts, the procedural
history of the case, and the issues on appeal.
We address first the appeal brought by Appellant RIGroup LLC. Appellant Smith
initially represented all Appellants on appeal, but after filing briefs, Smith was relieved as
counsel to Bullock, Remmel, and RIGroup LLC. Because “a corporation cannot generally
appear in federal court except through its lawyer,” Jacobs v. Patent Enforcement Fund, Inc., 230
F.3d 565, 568 (2d Cir. 2000), RIGroup LLC was notified that it would be deemed in default if an
attorney did not file a notice of appearance on its behalf by March 14, 2016. To date no attorney
has filed a notice of appearance on behalf of RIGroup LLC. We thus dismiss the appeal as to
RIGroup LLC.
We turn next to the arguments advanced by the remaining Appellants. A district court has
the authority to grant a § 1782 application if three statutory requirements are satisfied: (1) “the
person from whom discovery is sought resides (or is found)” within the court’s district; (2) “the
discovery is for use in a foreign proceeding before a foreign tribunal”; and (3) “the application is
made by a[n] . . . interested person.” Brandi-Dohrn v. IKB Deutsche Industriebank AG, 673 F.3d
76, 80 (2d Cir. 2012). If these statutory requirements are met, a district court may exercise its
discretion to grant the § 1782 application. Mees v. Buiter, 793 F.3d 291, 297 (2d Cir. 2015).
Appellants do not dispute the district court’s determination that Gorsoan’s application satisfied
the statutory requirements.
In exercising its discretion, a district court should consider the “twin aims” of § 1782:
(1) providing efficient means of assistance to participants in international litigation and
(2) encouraging foreign countries to provide such assistance to our courts. Id. at 297–98. The
district court may also consider four factors set forth by the Supreme Court in Intel Corp. v.
Advanced Micro Devices, Inc. 542 U.S. 241, 264–65 (2004): (1) whether the information sought
is within the foreign tribunal’s jurisdictional reach, and thus accessible absent § 1782 aid;
(2) “the nature of the foreign tribunal, the character of the proceedings underway abroad, and the
receptivity of the foreign government or [the] court . . . to U.S. federal-court jurisdictional
assistance”; (3) “whether the § 1782(a) request conceals an attempt to circumvent foreign proof-
3
gathering restrictions or other policies of a foreign country or the United States”; and (4) whether
the discovery request is “unduly intrusive or burdensome” or “sought for the purposes of
harassment.” Brandi-Dohrn, 673 F.3d at 80–81. When a party challenging the district court’s
decision argues that it misapplied these factors, we review the decision for abuse of discretion.
Lancaster Factoring Co. v. Mangone, 90 F.3d 38, 42 (2d Cir. 1996). We also review the denial
of a motion to quash a subpoena for abuse of discretion. Brandi-Dohrn, 673 F.3d at 79.
Appellants argue that the district court abused its discretion when it misapplied the first,
third, and fourth Intel factors. We address each factor in turn.
The first Intel factor instructs district courts to consider whether the requested discovery
is within the foreign tribunal’s jurisdictional reach and thus accessible without § 1782 aid. Id. at
80. Indisputably, Remmel, Smith, and RIGroup are not parties to the Cyprus proceedings, and so
the first Intel factor weighs in favor of discovery against them. On appeal, Appellants argue that
discovery should not be permitted because Bullock and Solferino Development SA, a
corporation allegedly involved in the fraud at issue in the Cypriot proceedings, were parties to
those proceedings. This argument is unpersuasive for two reasons. First, Gorsoan did not seek
§ 1782 discovery from Solferino. Second, although “the need for § 1782(a) aid generally is not
as apparent as it ordinarily is when evidence is sought from a nonparticipant in the matter arising
abroad,” Intel, 542 U.S. at 264 (emphasis added), participation in the foreign proceedings does
not automatically foreclose § 1782 aid. Here, the district court weighed Bullock’s non-
compliance with her discovery obligations in the foreign proceedings. Considering that one of
the twin aims of § 1782 aid is to assist foreign courts and litigants, the district court’s conclusion
that the first Intel factor weighed in Gorsoan’s favor was not an abuse of discretion.
4
The third Intel factor instructs district courts to consider whether the § 1782 application
conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a
foreign country or the United States. Appellants assert that the § 1782 application sought to
circumvent Cypriot proof-gathering restrictions because it sought deposition testimony that is
beyond the scope of discovery authorized under Cyprus law. This argument | {
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444 F.2d 840
Nancy SULLIVAN et al., Appellants,v.C. Francis MURPHY, Corporation Counsel, et al.
No. 71-1395.
United States Court of Appeals, District of Columbia Circuit.
May 26, 1971.
Mr. Monroe H. Freedman, Washington, D. C., with whom Messrs. James H. Heller and Ralph J. Temple, American Civil Liberties Union Fund, Washington, D. C., were on the motion, for appellants.
Mr. David P. Sutton, Asst. Corporation Counsel for D. C., with whom Messrs. C. Francis Murphy, Corporation Counsel, and Richard W. Barton, Asst. Corporation Counsel, were on the opposition, for appellees.
Before BAZELON, Chief Judge, and TAMM and WILKEY, Circuit Judges.
ORDER
PER CURIAM.
1
This cause came on for consideration of appellants' motion for summary reversal of the denial of a temporary restraining order, and the Court heard argument of counsel.
On consideration of the foregoing, it is
2
Ordered by the Court that the order of the District Court denying a temporary restraining order is reversed, and it is
3
Further ordered by the Court that, until the District Court rules on appellants' motion for preliminary injunction, appellees are enjoined from the further prosecution of any cases, against appellants or members of the class appellants purport to represent, in which appellees do not reasonably believe that they have in their files and records adequate evidence to support probable cause for arrest and charge, and in which, for this reason, appellees intend to consent to dismiss on the appearance of the defendants in court, and it is
4
Further ordered by the Court that, until the District Court rules on appellants' motion for preliminary injunction, appellees shall take all reasonable steps to avoid requiring the appearance of those against whom appellees reasonably believe there is insufficient evidence to justify continuation of the prosecution, and to notify those who are not required to appear.
5
This order does not prohibit appellees from further bona fide prosecution in any case in which they reasonably believe that they have adequate evidence to support probable cause for arrest and prosecution, nor does it preclude the appellees from suspending any or all prosecutions until the hearing on the preliminary injunction in the District Court, or until such time as they are able to make an orderly determination in each case as to whether prosecution is to be continued.
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United States Court of Appeals
For the Eighth Circuit
___________________________
No. 14-2245
___________________________
Danny Fischer
lllllllllllllllllllll Plaintiff - Appellant
v.
Minneapolis Public Schools
lllllllllllllllllllll Defendant - Appellee
____________
Appeal from United States District Court
for the District of Minnesota - Minneapolis
____________
Submitted: February 11, 2015
Filed: July 8, 2015
____________
Before GRUENDER, SHEPHERD, and KELLY, Circuit Judges.
____________
GRUENDER, Circuit Judge.
Danny Fischer sued Minneapolis Public Schools (“MPS”) claiming that MPS
violated the Americans with Disabilities Act (“ADA”) and the Minnesota Human
Rights Act (“MHRA”) by refusing to reinstate him as a Janitor Engineer. The district
court1 granted MPS’s motion for summary judgment. Fischer appeals this decision,
and we affirm.
I.
This employment dispute began with MPS’s decision not to reinstate Danny
Fischer as a Janitor Engineer after he failed a strength test. Fischer worked for MPS
as a Janitor Engineer from March 2008 until July 2010. During this time, Fischer
completed his duties satisfactorily. On July 1, Fischer was laid off for fiscal reasons,
but he was eligible to be recalled and reinstated later.
On December 8, 2011, Fischer received a letter from Mary Alfredson, a human-
resources employee at MPS, explaining that Fischer’s name had been reached on the
list of former employees who were subject to recall and thus Fischer was eligible for
a vacant Janitor Engineer position. The letter further explained that Fischer’s
reinstatement was conditioned on his possession of a boilers license and his
completion of a strength test created by Cost Reduction Technology (“CRT”).
Alfredson’s letter stated, “if you pass [the CRT test] at the required level and have a
current boilers license, we will proceed with the recall from layoff.” Enclosed with
the letter was a referral form that described the CRT test and included directions to
the testing location. The form explained that the CRT test measured the “maximum
force-producing capability of muscles” and also advised Fischer to wear workout
clothes, rest, and drink plenty of water.
On the day of the CRT test, Fischer arrived and read a document explaining the
test. He signed this document below a statement that said, “I have read the above
information and I understand that I will be asked to give maximum effort and that I
1
The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
-2-
will be performing short bouts of strenuous exercise.” Fischer completed the test,
which required him to operate a machine by performing repetitions using his arms,
legs, and back. Fischer called Alfredson later that day to let her know he had
completed the test, and Alfredson promised to contact him when the results arrived.
Alfredson called Fischer several days later and left a voice message explaining that
Fischer did not pass the CRT test and was accordingly being bypassed for recall.
Fischer took this to mean that “I would not be getting my job back.” Fischer returned
the phone call and was again told that he “was not going to get [his] job back and that
[Alfredson] was going to be sending [him] a termination letter.”
Fischer’s CRT test yielded a composite score of 197.5, which corresponded
with medium strength, just shy of the 201 score needed for the medium-heavy
strength designation that MPS required for its Janitor Engineers. Before requiring the
CRT test for recalled Janitor Engineers in August 2011, MPS decided that, given the
position’s physical demands, a CRT strength level of medium-heavy was appropriate
for its Janitor Engineers based on a job-task analysis. CRT created these strength-
level categories based on Department of Labor definitions of physical-demand
requirements. There are eight such strength levels in total, ranging from sedentary
to very heavy. Of the eight strength levels, medium-heavy is the third highest and is
just above medium. According to CRT’s definitions, a medium-heavy strength
worker is able to exert 51 to 75 pounds of force on occasion, up to 100 times in eight
hours, and 31 to 45 pounds of force frequently, up to 300 times in eight hours. By
comparison, a medium strength worker is able to exert 36 to 50 pounds of force
occasionally and 22 to 30 pounds of force frequently. The CRT test accordingly was
designed to test a worker’s physical ability relative to a given position’s demands.
Here, the medium-heavy strength designation was designed to match the demands of
a Janitor Engineer’s various physical tasks such as lifting a full five-gallon bucket,
carrying trash to outside dumpsters, and moving racks of chairs and tables.
-3-
After Fischer learned from Alfredson that he would not be getting his job back,
Fischer spoke to several MPS employees and his union representatives about the
possibility of a retest. According to Fischer, several MPS employees told him or his
mother that he failed the CRT test because of his back and that because of his failed
CRT score, he was more likely to be injured on the job. Specifically, Fischer alleges
that MPS employees told him that he was not reinstated because of his back, that he
was “incapable of pulling, carrying, pushing, or lifting a heavy load,” and that his
employment would “create[] a substantial risk of injury in the work place.”
Eventually, Fischer contacted the president of CRT and was told that he failed to
achieve a composite score of 201 because his score on the portion of the test that
measured back strength was lower than his score for his arms and legs. CRT’s
president explained that Fischer’s back score was not poor “but it’s up to the
company if they want to re-hire you or not.” During this time after Fischer learned
he would not be reinstated, he spoke to multiple MPS managers and employees about
the unfairness of his situation, and he requested the opportunity to retake the CRT
test. MPS denied his request for a retest.
Fischer sued MPS alleging that MPS violated the ADA, see 42 U.S.C. § 12101
et seq., and the MHRA, see Minn. Stat. § 363A.01 et seq., by deciding not to reinstate
him based on MPS’s perception that Fischer was disabled. Fischer also alleged that
MPS violated the MHRA by retaliating against him following his complaints about
discrimination and requests for accommodation. The district court granted MPS
summary judgment.
II.
We review a grant of summary judgment de novo, viewing the facts in the light
most favorable to the non-moving party. Torgerson v. City of Rochester, 643 F.3d
1031, 1042 (8th Cir. 2011) (en banc). “The non-moving party receives the benefit of
all reasonable inferences supported by the evidence, but has the obligation to come
-4-
forward with specific facts showing that there is a genuine issue for trial.” B.M. ex
rel. Miller v. S. Callaway R-II Sch. Dist., 732 F.3d 882, 886 (8th Cir. 2013) (quoting
Atkinson v. City of Mountain View, 709 F.3d 1201, 1207 (8th Cir. 2013)) (internal
quotation marks omitted). “A complete failure by the non-moving party ‘to make a
showing sufficient to establish the existence of an element essential to that party’s
case . . . necessarily renders all other facts immaterial.’” Walz v. Ameriprise Fin.,
Inc., 779 F.3d 842, 844 (8th Cir. 2015) (quoting Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986)). “Summary judgment is appropriate when there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of law.”
EEOC v. Wal-Mart Stores, Inc., 477 F.3d 561, 568 (8th Cir. 2007) (quoting Wojewski
v. Rapid City Reg’l Hosp., Inc., 450 F.3d 338, 342 (8th Cir. 2006)).
Fischer first claims that MPS violated the ADA and the MHRA by refusing to
reinstate him following his failed CRT test. We generally analyze ADA and MHRA
claims in the same way, with one exception that is irrelevant here. Kammueller v.
Loomis, Fargo & Co., 383 F.3d 779, 784 (8th Cir. 2004). And Fischer does not urge
any distinction between the two statutes as applied to this case. The ADA prohibits
a covered employer from discriminating against “a qualified individual on the basis
of disability.” 42 U.S.C. § 12112(a). In order to establish a prima facie case of
discrimination under the ADA, a plaintiff must show that he “(1) is disabled within
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194 B.R. 3 (1996)
In re Angelica LAMPIRIS, f/k/a Angelica Acello, Debtor.
Bankruptcy No. 93-12500-JEY.
United States Bankruptcy Court, D. New Hampshire.
March 27, 1996.
Arthur C. Randlett, Exeter, NH, for Debtor.
Robert Moses, Amherst, NH, for Trustee.
Keith Rothman, Islandia, NY, for Pachman & Oshrin, P.C.
Geraldine Karonis, Assistant U.S. Trustee, Manchester, NH.
Victor Dahar, Trustee, Manchester, NH.
MEMORANDUM OPINION
MARK W. VAUGHN, Bankruptcy Judge.
The Court has before it the objections of the Chapter 7 Trustee and the United States Trustee to the proof of claim filed by Pachman & Oshrin, P.C., a law firm that represented *4 the Debtor prepetition in a divorce action in New York and which asserts that it holds a secured claim for legal services in the amount of $5,000. (Proof of Claim No. 6.) A final meeting of creditors was held on March 22, 1996, at which time the Court heard the Chapter 7 Trustee's objection to claims, his request for compensation, and his final account. The Court approved the Chapter 7 Trustee's final account and allowed his application for compensation. After a hearing on the objection to Pachman & Oshrin's claim, at which the Chapter 7 Trustee, the Assistant United States Trustee, and counsel for Pachman & Oshrin appeared and argued their respective positions, the Court took the objections under advisement.
This Court has jurisdiction of the subject matter and the parties pursuant to 28 U.S.C. §§ 1334 and 157(a) and the "Standing Order of Referral of Title 11 Proceedings to the United States Bankruptcy Court for the District of New Hampshire," dated January 18, 1994 (DiClerico, C.J.). This is a core proceeding in accordance with 28 U.S.C. § 157(b).
For the reasons set out below, the Court sustains the objections of the Chapter 7 Trustee and the United States Trustee. Pachman & Oshrin shall be treated as an unsecured creditor under the Bankruptcy Code and shall receive a pro rata distribution from the funds of the Debtor's estate.
FACTS
The Debtor filed a Chapter 7 bankruptcy petition on September 2, 1993. On February 14, 1994, Pachman & Oshrin filed its original proof of claim. On June 16, 1994, the Court approved a settlement of the Debtor's prepetition personal injury claim, and on August 2, 1994, the Chapter 7 Trustee recovered $13,500 from Peerless Insurance Company. Pursuant to the Court's September 26, 1994, order, the attorney representing the estate in the personal injury action received $4,529 for his legal fees and expenses. The balance of $8,971 is being held by the Chapter 7 Trustee. Pachman & Oshrin filed an amended proof of claim on April 24, 1995. As indicated above, Pachman & Oshrin claims a lien in the amount of $5,000 against the personal injury suit proceeds.
The basis for the firm's assertion that it holds a secured claim is an assignment dated October 27, 1992, in which the Debtor assigned to Howard E. Pachman, P.C. the amount of $5,000 "from any recovery resulting from any claim or lawsuit arising from the accident" in which the Debtor was injured. In the assignment document, the Debtor directed her attorney to honor the assignment as a lien against any proceeds of the personal injury lawsuit. Notice of this assignment was given to the Debtor's personal injury counsel who was later appointed special counsel to the Chapter 7 Trustee to pursue this claim in the bankruptcy case. No notice was given to the defendant in the personal injury lawsuit or to the defendant's insurance company, nor was a financing statement filed in accordance with Article 9 of the Uniform Commercial Code.
DISCUSSION
Both the United States Trustee and the Chapter 7 Trustee filed objections to this claim arguing that Pachman & Oshrin does not have valid lien because the assignment was not properly perfected as no notice was given to the defendant or its insurance carrier during the pendency of the personal injury lawsuit. The issue before the Court then is whether the law firm's claim is a secured claim and thus superior in right to the claim of the Chapter 7 Trustee, a lien creditor from the date the Debtor's bankruptcy petition was filed. To resolve this question, the Court must determine the legal effect of the assignment by the Debtor to Pachman & Oshrin.
The first issue is whether Article 9 of the Uniform Commercial Code applies to the assignment. Courts have held that the assignment of a portion of an expected recovery from a cause of action should be treated as a "general intangible" under Article 9. E.g., In re Phoenix Marine Corp., 20 B.R. 424 (Bankr.E.D.Va.1982); Board of County Comm'r of County of Adams v. Berkeley Village, 40 Colo.App. 431, 580 P.2d 1251 (1978); Great Western Nat'l Bank v. Hill (In the Matter of the Estate of Hill), 27 Or.App. *5 893, 557 P.2d 1367 (1976); Friedman, Lobe & Block v. C.L.W. Corp., 9 Wash.App. 319, 512 P.2d 769 (1973). A general intangible is a catch-all category defined by Article 9 as "any personal property (including things in action) other than goods, accounts, chattel paper, documents, instruments, and money." N.H.R.S.A. § 382-A:9-106 (1994).[1] Because what was assigned to Pachman & Oshrin by the Debtor was a portion of an expected recovery from the Debtor's personal injury action, it should be treated as a general intangible.
New Hampshire R.S.A. § 382-A:9-102(a) provides that Article 9 applies "to any transaction (regardless of its form) which is intended to create a security interest in personal property or fixtures including goods, documents, instruments, general intangibles, chattel paper or accounts." Having found that the assignment is a general intangible, the Court must next determine whether the assignment was given by the Debtor for the purpose of securing the payment of Pachman & Oshrin's legal fees incurred in the Debtor's divorce action. On this point, the language in the assignment is clear. The Debtor instructed her personal injury attorney to "honor this assignment as a lien against any funds that become due me as a result of such claim or lawsuit." (emphasis added.)
Because Article 9 applies to the parties' transaction, the second question the Court must address is whether Pachman & Oshrin was required to file a financing statement to perfect its security interest in the proceeds of the lawsuit. Article 9 provides that a financing statement must be filed to perfect a general intangible. N.H.R.S.A. § 382-A:9-302; see Friedman, Lobe & Block, 512 P.2d at 771. In this case, Pachman & Oshrin did not file a financing statement. At the hearing held on March 26, 1996, counsel for Pachman & Oshrin indicated that notice had been provided only to the Debtor's personal injury counsel. No Article 9 financing statements were filed with the appropriate state and local offices. Accordingly, Pachman & Oshrin holds an unperfected security interest in the settlement proceeds.
The last issue to be decided by the Court is the priority of the law firm's claim. Article 9 provides that "an unperfected security interest is subordinate to the rights of . . . a person who becomes a lien creditor before the security interest is perfected." N.H.R.S.A. § 382-A:9-301(1)(b). A lien creditor includes a "trustee in bankruptcy from the date of the filing of the petition." Id. § 382-A:9-301(3). It follows from these provisions that the unperfected security interest of Pachman & Oshrin is subordinate to the rights of the Chapter 7 Trustee, who obtained status as a lien creditor when the Debtor filed for bankruptcy on September 2, 1993. While the unperfected security interest of Pachman & Oshrin is not void or voidable, it has a lesser priority than the interest of the Chapter 7 Trustee as lien creditor. See Hill, 557 P.2d at 1374-75; Friedman, Lobe & Block, 512 P.2d at 771.
CONCLUSION
Accordingly, the objections of the Chapter 7 Trustee and the United States Trustee are sustained. Pachman & Oshrin shall be treated as an unsecured creditor under the Bankruptcy Code and shall receive a pro rata distribution from the funds of the Debtor's estate. The Chapter 7 Trustee shall amend his final account consistent with this opinion.
This opinion constitutes the Court's findings and conclusions of law in accordance with Federal Rule of Bankruptcy Procedure 7052. The Court will issue a separate order consistent with this opinion.
NOTES
[1] Note that the Court is applying New Hampshire law to the transaction in question because N.H.R.S.A. § 382-A:9-103(3)(b) indicates that "the law . . . of the jurisdiction in which the debtor is located governs the perfection and the effect of perfection or non-perfection | {
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189 Cal.App.4th 330 (2010)
DAVID JAY AGOSTO, Plaintiff and Appellant,
v.
BOARD OF TRUSTEES OF THE GROSSMONT-CUYAMACA COMMUNITY COLLEGE DISTRICT, Defendant and Respondent.
No. D055470.
Court of Appeals of California, Fourth District, Division One.
September 23, 2010.
*332 The Torgow Law Firm and Martha A. Torgow, for Plaintiff and Appellant.
Stutz Artiano Shinoff & Holtz, Jack M. Sleeth, Jr., and Paul V. Carelli IV, for Defendant and Respondent.
OPINION
McDONALD, Acting P. J.
David Jay Agosto appeals a judgment denying his petition for a writ of mandate directing the Board of Trustees of the Grossmont-Cuyamaca Community College District (District) to reinstate him to his former position of vice-president of Cuyamaca College and pay him backpay. On appeal, Agosto contends the trial court erred by (1) denying his request for reinstatement because he has statutory and property rights to his former position as a community college administrator; (2) denying his request for reinstatement while inconsistently awarding him partial backpay; (3) denying his request for reinstatement based on its alternative finding he was unable to work as an administrator because of his disability; (4) finding he waived his right to reinstatement; and (5) excluding certain evidence.
FACTUAL AND PROCEDURAL BACKGROUND
In March 1995, District and Agosto entered into a contract pursuant to which he was employed as "Executive Dean, Student Services" for a two-year term from March 27, 1995, through March 27, 1997. That contract provided: "6. Reassignment. [¶] In the event that this contract of employment is not renewed for the ensuing school year by the District, [Agosto] shall be reassigned for the ensuing school year to another position for which *333 he has the necessary qualifications, in accordance with the District's policies and procedures, the Management Employees Handbook, or other agreement governing reassignment and retreat rights. In the event that this contract is not to be renewed for the ensuing school year, the District may, at the time it gives [Agosto] written notice that the contract will not be renewed, immediately reassign [Agosto] to another position, which need not be an administrative or supervisory position, for which he has the necessary qualifications, provided, however, that [Agosto] will continue to receive for the balance of the term of this contract the salary benefits which he is entitled to receive under this contract notwithstanding such immediate reassignment." (Italics added.) The contract further provided: "This agreement does not confer tenure in the administrative or supervisory position upon an academic administrator."
Agosto's employment contract was periodically renewed, although his position was subsequently redesignated as "Vice President, Cuyamaca College." In 2004 and 2005, Agosto was assigned by District as interim associate vice-chancellor, which assignment was to end on June 30, 2006. In September 2005, he was diagnosed with kidney disease and took intermittent leave from September 2005 through January 2006, and then was on full-time leave until November 30, 2006.
On February 21, 2006, District's board of trustees met in closed session and gave "alternative instructions of negotiation" to the chancellor apparently to "explore" with Agosto the termination, or nonrenewal, of his contract (in comparison to its outright nonrenewal of another administrator's contract). On March 10, 2006, District sent Agosto a letter informing him of the board's decision not to renew his appointment as interim associate vice-chancellor, that his position would end on July 1, 2006, and he would not be offered any other administrative position. However, the letter informed Agosto he may have the right to return to a faculty position pursuant to the provisions of Education Code[1] section 87458. The letter further stated that although District disagreed with Agosto's argument that he had a right to his prior position of vice-president through July 2007, were a court to determine he was correct, the letter provided notice pursuant to section 72411 of District's intent not to renew that contract.
In July 2006, District offered Agosto, and he accepted, reassignment to a full-time counselor position as a first-year probationary faculty employee for the coming academic year. However, Agosto apparently never performed any work in that position because he was on disability leave before and after a medical procedure performed in September 2006.
*334 In November 2006, Agosto filed the instant petition for writ of mandate, alleging District did not properly terminate his two-year contract at least six months before its expiration as required by section 72411. He sought a writ of mandate directing District to reinstate him to the position of vice-president of Cuyamaca College and pay him backpay. In response, District argued that because it never signed Agosto's purported written employment contract in 1995, the statute of frauds barred its enforcement. It also argued it timely notified Agosto of its decision not to renew his appointment to his position. Finally, citing Barthuli v. Board of Trustees (1977) 19 Cal.3d 717 [139 Cal.Rptr. 627, 566 P.2d 261] (Barthuli), District argued Agosto did not have a right to reinstatement to his position as an administrator. In the first trial on the petition, the trial court (San Diego County Superior Court Judge Joan M. Lewis) denied the petition, finding that the written contract was unenforceable because District had not signed it and District had timely notified Agosto that his year-to-year position would not be renewed.[2] Agosto appealed that judgment.
On July 29, 2008, we reversed the judgment for District and remanded the matter for further proceedings consistent with the views expressed in our opinion. (Agosto v. Board of Trustees of the Grossmont-Cuyamaca Community College Dist. (July 29, 2008, D051045) [nonpub. opn.].) We concluded that although District did not sign the written contract, "[t]o permit [District] to assert the statute of frauds defense in these circumstances would facilitate a fraud upon Agosto and unjustly allow the District to escape its obligations to him under the contract." We refrained from deciding the question whether Agosto's two-year contract renewed on March 27, 2007. Nevertheless, we concluded District's March 10, 2006, notice of termination (or nonrenewal) of his two-year contract was untimely.
On remand, the trial court (San Diego County Superior Court Judge Ronald S. Prager) considered the evidence presented by the parties and their written and oral arguments. On May 27, 2009, the court issued an order denying in part and granting in part the petition for writ of mandate. The court noted that our July 29, 2008, opinion concluded Agosto's employment contract was not terminated because District failed to comply with section 72411's notice requirements, but our opinion did not address District's defenses and we remanded for further proceedings. The trial court stated:
"This Court finds that the parties have not modified or rescinded the contract by subsequent conduct from the two-year term to a year-to-year appointment; there is insufficient evidence that the Board voted to terminate [Agosto's] employment; and that his term of employment extended to March *335 27, 2007. [¶] [Agosto's] two-year contract was not modified by conduct.... [Agosto] never waived his rights to continue to be employed under his original two[-]year contract. [¶] ... [¶]
"As to the issue of what is the appropriate remedy, [Agosto] is entitled to the difference in pay between an administrator and a faculty member for July through part of November 2006 and an amount of lump-sum vacation pay since he was not able to work or be paid after November 2006 because of his disability (Ed. Code[,] § 87789.) The Court notes that [Agosto] retired in 2008.
"However, reinstatement is not proper for two reasons. One, he took the position that he was disabled and stopped working in 2005 but was paid until November 2006 by sick pay and other disability benefits. He cannot take an inconsistent position about his own health, and has not provided medical evidence to show that he was not really disabled. Two, the court in [Barthuli] held that reinstatement is not an appropriate remedy for an administrator because an administrator, unlike a teacher, does not possess a statutory right to his position." Agosto timely filed a notice of appeal.[3]
DISCUSSION
I
Writs of Mandate Generally
(1) Code of Civil Procedure section 1085, subdivision (a), provides that a writ of mandate may be issued "by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station ...." "The availability of writ relief to compel a public agency to perform an act prescribed by law has long been recognized." (Santa Clara County Counsel Attys. Assn. v. Woodside (1994) 7 Cal.4th 525, 539 [28 Cal.Rptr.2d 617, 869 P.2d 1142].) To obtain writ relief, a petitioner must show "`(1) A clear, present and usually ministerial duty on the part of the respondent ...; and *336 (2) a clear, present and beneficial right in the petitioner to the performance of that duty ....' [Citation.]" (Id | {
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Filed 3/2/15 Watts v. Oak Shores Community Assn. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified
for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
KEN WATTS et al., 2d Civil No. B240337
(Super. Ct. No. CV060326)
Plaintiffs and Appellants, (San Luis Obispo County)
v.
OAK SHORES COMMUNITY ASSOCIATION,
Defendant and Respondent.
OAK SHORES COMMUNITY ASSOCIATION,
Cross-complainant and Respondent,
v.
KEN WATTS et al.,
Cross-defendants and Appellants.
Two owners of one lot in a common interest development and one of
two owners of another lot brought an action challenging regulations and fees
adopted by the owners association. The association cross-complained against all
owners of both lots for fees and declaratory relief. The association prevailed on the
complaint and cross-complaint. The trial court also awarded the association
statutory attorney fees and costs on the complaint and cross-complaint. The
judgment must be clarified so that the attorney fees awarded on the complaint are
against plaintiffs only, and not against the cross-defendant who was not a plaintiff.
In all other respects, we affirm.
FACTS
Oak Shores is a single-family residential common interest
development. It is governed by the Oak Shores Community Association
(Association). The Association is governed by a board of directors (Board). All
property owners in the development are members of the Association.
The Association's governing documents include its Covenants,
Conditions and Restrictions (CC&Rs) and its bylaws. The Board "may adopt,
amend, or repeal Rules for the use, occupancy and maintenance of the Project; for
the general health, welfare, comfort, and safety of Members; and to interpret and
implement these CC&Rs, and establish penalties for violation of such Rules."
(CC&Rs, Article 6.2.) "In the event the Association undertakes to provide materials
or services that benefit a particular Member, such Member in accepting the
materials or services agrees to reimburse the Association for the costs incurred by
the Association, which shall become a Special Assessment against the Member."
(Id., Article 3.8.)
Oak Shores consists of 851 parcels of land. Six hundred and sixty of
the parcels are developed with single-family homes. Only about 20 percent, 125 to
150, of the homes are occupied by full-time residents. Approximately 66 absentee
homeowners rent their homes to short-term vacation renters.
Ken and Joyce Watts and Lynda Burlison (collectively "Watts") are
absentee owners who rent their homes to short-term vacation renters. Watts filed a
complaint against Oak Shores challenging fees charged and rules and regulations
enacted by the Association. The challenge included: a rule restricting owners from
renting out their homes more than once in any seven-day period; an annual fee of
$325 imposed on owners who rent their homes; a rule limiting the number of
2
automobiles, boats and other watercraft that renters are allowed to bring into Oak
Shores; a mandatory garbage collection fee; boat and watercraft fees; building
permit fees; and property transfer fees.
The Association cross-complained against Watts and Robert Burlison,
Jr., for unpaid fees and fines and for injunctive relief to require cross-defendants to
comply with Association rules and regulations. At the time of filing, the Burlisons
owed $2,355.06 in unpaid assessments and the Watts owed $4,888.47. The
Burlisons paid the assessment under protest. At the time of trial, the Watts owed
$10,264.
Short-term Renters
The Association has a rule stating that the minimum rental period is
seven days. The Association's general manager testified that based on his
discussion with Board members, staff and code enforcement officers, as well as his
review of gate and patrol logs, short-term renters cause more problems than owners
or their guests. The problems include parking, lack of awareness of the rules, noise
and use and abuse of the facilities. Expert James Smith testified that, unlike guests
who are typically present with the owners, short-term renters are never present with
the owner. Guests tend to be less destructive and less burdensome. Short-term
renters require greater supervision and increase administrative expenses.
A $325 fee is charged to all owners who rent their homes. A 2007
study calculated each rental cost the Association $898.59 per year.
Watercraft
All short-term renters and guests who bring watercraft into Oak
Shores pay a fee of $25 per day or $125 per week. Short-term renters and guests
are limited to one boat or two personal watercraft. Owners and long-term renters do
not pay such special fees nor are they limited in the number of watercraft they can
bring into Oak Shores.
3
Boats have a negative impact on the Association's roads. There are
also costs of maintaining the docks and parking lot used by the renters and
increased costs for code enforcement.
Expert James Smith testified that renters comprise only 8 percent of
the people entering the gate but renters bring in 37 percent of the boats.
Parking Restrictions
Association rules restrict parking in the lower marina lot to owners on
weekends and holidays during the summer months. A lot not much further away is
available to all.
Construction Permits
The Association charges a plan-check fee of $100 and a road impact
fee of $1,600 for new construction. Expert James Smith testified that heavy
equipment used to construct homes places more wear on the roads and results in
greater usage. It is appropriate to consider the need for reserves in determining the
amount of the fee. The Board President testified road resurfacing and repair is the
sole costs basis for the fee.
Trash Collection Fees
The Association contracts with a trash collector. It passes the fees
through pro-rata to all owners of developed lots. The Association does not
distinguish between full-time and part-time residences because it is too difficult to
make that determination. It does not charge the owners of undeveloped lots because
they do not produce trash.
Former Civil Code Section 1366.11
Former section 1366.1 (repealed by Stats. 2012, ch. 180, § 1 and
reinstated with nonsubstantive changes as § 5600, subd. (b)) provided, "An
association shall not impose or collect an assessment or fee that exceeds the amount
necessary to defray the costs for which it is levied."
1
All statutory references are to the Civil Code unless noted otherwise.
4
David Levy and Travis Hickey are certified public accountants. Levy
testified that the expenses generated by renters far exceed the income generated
from renters. He analyzed fees and costs contained in the Association's financial
statements and reserve studies. He concluded the fees charged were reasonable and
complied with the law. Levy also consulted with the Association's former auditors.
Levy and Hickey concluded that the fees were reasonable and did not violate former
section 1366.1. Levy also testified the only comparable association charged fees
that were higher or comparable to fees charged by Oak Shores.
Hickey testified that he is the Association's former auditor. He
studied the fees and consulted with another former auditor. He concluded the fees
were fair, reasonable and in compliance with the law. They do not exceed the costs
for which they are levied. No association conducts a formal study to set fees. Nor
does any association conduct time and motion studies. In fact, time and motion
accounting is not possible.
Homeowners association expert Karen Conlon testified the
Association met the standard of care for giving members notice of rule and fee
changes. Fee increases can be enacted by adopting a budget for the year.
Swimming Pool
The Association paid a pool contractor $35,000 to repair a swimming
pool. The contractor absconded with the money without repairing the pool. A
former director testified that a former Board president wrote a check to the
contractor without Board approval. Expert James Smith testified it is not typical,
nor within the standard of care, for an association to purchase a performance bond.
Release and Unclean Hands
Lynda Burlison filed a previous lawsuit against the Association. Her
complaint included an attack on the Association's CC&Rs, rules and regulations
restricting the use of her property for rental purposes. She settled the suit for
$3,000 and the | {
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[Cite as Carter v. R&B Pizza Co., Inc., 2010-Ohio-5937.]
STATE OF OHIO, JEFFERSON COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
BENITA CARTER, )
)
PLAINTIFF-APPELLANT, )
)
V. ) CASE NO. 09 JE 34
)
R&B PIZZA CO., INC., ET AL., ) OPINION
)
DEFENDANTS-APPELLEES. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common
Pleas of Jefferson County, Ohio
Case No. 04CV239
JUDGMENT: Reversed. Judgment for Plaintiff-
Appellant.
APPEARANCES:
For Plaintiff-Appellant Attorney Jack N. Turoff
20320 Farnsleigh Road
Shaker Heights, Ohio 44122
For Defendant-Appellee Richard Cordray
Ohio Attorney General
Eric Tarbox
Assistant Attorney General
150 East Gay Street, 22nd Flr.
Columbus, Ohio 43215-3130
JUDGES:
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Dated: December 6, 2010
[Cite as Carter v. R&B Pizza Co., Inc., 2010-Ohio-5937.]
DONOFRIO, J.
{¶1} Plaintiff-appellant, Benita Carter, appeals from Jefferson County
Common Pleas Court judgments denying her motion for directed verdict and denying
her motions for judgment notwithstanding the verdict or for a new trial. A jury verdict
was entered in favor of defendant-appellee, the Administrator of the Bureau of
Workers’ Compensation, finding that appellant was not entitled to workers’
compensation benefits.
{¶2} This is the second time this case has been before this court. In Carter
v. R&B Pizza Co., Inc., 7th Dist. No. 06-JE-5, 2008-Ohio-1530, at ¶`3-4, we set out
the following pertinent facts:
{¶3} “Benita Carter is said to have run R & B Pizza Company, Inc., dba
Pizza Express, a business located next to her house in Cadiz, Ohio. She was the
vice president, treasurer and secretary, and her husband was the sole stockholder
and president. (Tr. 156-157). Her husband also owned Wise Guys Pizza, Inc., dba
Speedies Pizza, a business he operated in Midland, Pennsylvania.
{¶4} “In September 2001, Ms. Carter was driving on Route 22 in Jefferson
County when a drunk driver entered oncoming traffic and crashed into her vehicle.
She filed for Ohio workers' compensation benefits claiming that she had been
delivering pizza supplies from the Pennsylvania pizza store to R & B Pizza in Ohio.
When her application was denied and the Industrial Commission refused her appeal,
she filed a complaint and notice of appeal in the trial court.”
{¶5} The case went to trial where the jury returned a verdict in favor of
appellee. The trial court granted appellant’s motion for a new trial finding that the
judgment was not supported by the weight of the evidence because appellant was
clearly an employee acting within the scope of her employment when the accident
occurred. On appeal, we found that the trial court’s decision to grant a new trial was
correct, but for reasons other than those put forth by the trial court. We found that
the jury was erroneously charged on the definition of “employee,” and therefore, the
jury’s verdict was unreliable. Id. at ¶47.
-2-
{¶6} Consequently, this case proceeded to a new trial on June 30, 2009.
This time the parties stipulated that appellant was an employee of R&B. Thus, the
only issue for the jury was whether appellant was acting in the scope of her
employment when the accident occurred. At the close of evidence, appellant moved
for a directed verdict. The trial court overruled the motion. Subsequently, the jury
returned a verdict in favor of appellee finding that appellant is not entitled to
participate in the Ohio Workers’ Compensation Fund.
{¶7} Appellant subsequently filed a motion for judgment notwithstanding the
verdict (JNOV) or, in the alternative, motion for a new trial. The trial court denied
appellant’s motions.
{¶8} Appellant filed a timely notice of appeal on September 17, 2009.
{¶9} Appellant raises five assignments of error. Her first and fifth
assignments of error are related and therefore, we will address them together. They
state, respectively:
{¶10} “THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
FAILING TO FIND THAT BENITA CARTER WAS ACTING WITHIN THE SCOPE OF
HER EMPLOYMENT AS A MATTER OF LAW.”
{¶11} “THE TRIAL COURT’S REFUSAL TO GRANT APPELLANT’S MOTION
FOR J.N.O.V. OR NEW TRIAL RESULTED IN A GROSS MISCARRIAGE OF
JUSTICE BASED ON THE FACTS OF THIS CASE.”
{¶12} Appellant argues that, in ruling on her motions for directed verdict and
JNOV, the trial court failed to consider the liberal construction of workers’
compensation law in favor of finding coverage for the employee. Appellant asserts
that there was no evidence to contradict that she was acting within the scope of her
employment at the time of the accident. Given the lack of contradictory evidence and
the liberal construction of workers’ compensation law, appellant argues the court
should have granted her motion for directed verdict. She contends that appellee’s
arguments in rebuttal were focused on weight of the evidence and witness credibility.
Instead, appellant argues that the appropriate test was one of sufficiency.
-3-
{¶13} A motion for directed verdict tests the sufficiency of the evidence at trial,
not the weight of such evidence or the credibility of witnesses. Northeast Ohio Elite
Gymnastics Training Ctr., Inc. v. Osborne, 183 Ohio App.3d 104, 2009-Ohio-2612, at
¶6, citing Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 284. The court shall
grant a motion for a directed verdict when, “after construing the evidence most
strongly in favor of the party against whom the motion is directed, [it] finds that upon
any determinative issue reasonable minds could come to but one conclusion upon
the evidence submitted and that conclusion is adverse to such party.” Civ.R.
50(A)(4).
{¶14} When ruling on a motion for JNOV, the trial court applies the same test
applied to a motion for a directed verdict. Boardman Tp. Park Dist. v. Boardman
Supply Co. (Jan. 23, 2001), 7th Dist. No. 99-CA-297. In ruling on a JNOV motion,
courts do not consider the weight of the evidence or witness credibility, but simply
consider whether sufficient evidence exists to support the verdict. Wells Fargo
Financial Leasing Inc. v. Gilliland, 4th Dist. Nos. 05CA2993, 05CA3006, 2006-Ohio-
2756, at ¶28. If substantial competent evidence supports the non-moving party, and
reasonable minds could reach different conclusions about that evidence, the court
must deny the motion. Id. at ¶ 27.
{¶15} An appellate court reviews a trial court's rulings on motions for directed
verdict and for JNOV de novo because they present questions of law. Peam v.
Daimler Chrysler Corp. (2002), 148 Ohio App.3d 228, 240; Julian v. Creekside Health
Center, 7th Dist. No. 03-MA-21, 2004-Ohio-3197, at ¶8.
{¶16} We must examine the relevant evidence presented at trial to determine
whether the trial court properly denied appellant’s motions for directed verdict and
JNOV.
{¶17} Ronald Carter, appellant’s ex-husband, testified that he owned two
pizza shops, R&B Pizza Express in Cadiz, Ohio and Speedies Pizza in Pennsylvania.
(Tr. 108). He testified that he ran the Pennsylvania shop and appellant ran the Ohio
shop. (Tr. 109-110).
-4-
{¶18} On the day of the accident, Ronald testified that he and appellant went
together to the Pennsylvania shop. (Tr. 112). Ronald stated that appellant
accompanied him that day so that she could meet with their bookkeeper. (Tr. 112).
He stated that appellant had to go over the monthly bookwork for the Ohio store. (Tr.
112). Ronald stated | {
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1556
BISMARK KWAKU TORKORNOO,
Plaintiff - Appellant,
v.
MARY TORKORNOO; JACQUELINE E. NGOLE, Esquire; NINA HELWIG,
Esquire (BIA); JOHN C. MONAHAN, Esquire; JUDGE CYNTHIA
CALLAHAN; MASTER CLARK WISOR,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, Senior District Judge.
(8:15-cv-00980-PJM)
Submitted: July 21, 2015 Decided: July 23, 2015
Before WILKINSON and MOTZ, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Bismark Kwaku Torkornoo, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bismark Kwaku Torkornoo appeals the district court’s order
dismissing without prejudice his suit challenging Maryland
domestic-relations proceedings for lack of subject-matter
jurisdiction. * We have reviewed the record and find no reversible
error. Accordingly, we affirm for the reasons stated by the
district court. Torkornoo v. Torkornoo, No. 8:15-cv-00980-PJM (D.
Md. Apr. 29, 2015). We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED
* We conclude that the dismissal order is final and
appealable. See In re GNC Corp., ___ F.3d ___, ___, 2015 WL
3798174, at *9 n.3 (4th Cir. June 19, 2015) (discussing standard
for determining finality of order).
2
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10-3492
Wu v. Holder
BIA
Vomacka, IJ
A097 519 821
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 15th day of August, two thousand twelve.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 JON O. NEWMAN,
10 PIERRE N. LEVAL,
11 Circuit Judges.
12 _____________________________________
13
14 FEI YUN WU,
15 Petitioner,
16
17 v. 10-3492
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Xin Miao, Flushing, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Jennifer Paisner Williams,
28 Senior Litigation Counsel; Colette
05212012-26
1 J. Winston, Attorney; Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, D.C.
5 UPON DUE CONSIDERATION of this petition for review of a
6 decision of the Board of Immigration Appeals (“BIA”), it is
7 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
8 review is DENIED.
9 Petitioner Fei Yun Wu seeks review of an August 9,
10 2010, decision of the BIA, affirming the March 2, 2009,
11 decision of Immigration Judge (“IJ”) Alan A. Vomacka,
12 denying his application for asylum, withholding of removal,
13 and relief under the Convention Against Torture (“CAT”). In
14 re Fei Yun Wu, No. A097 519 821 (B.I.A. Aug. 9, 2010), aff’g
15 No. A097 519 821 (Immig. Ct. N.Y. City Mar. 2, 2009). We
16 assume the parties’ familiarity with the underlying facts
17 and procedural history of this case.
18 Under the circumstances of this case, we have reviewed
19 the IJ’s decision as modified by the BIA. See Xue Hong Yang
20 v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
21 Therefore, because the BIA assumed Wu’s credibility, we do
22 not consider his challenges to the IJ’s adverse credibility
23 findings. Id. The applicable standards of review are well-
24 established. See Jian Hui Shao v. Mukasey, 546 F.3d 138,
25 157-58 (2d Cir. 2008).
05212012-26 2
1 Wu, a native and citizen of the People’s Republic of
2 China, sought relief from removal based on his claim that he
3 fears persecution because he has had more than one child in
4 the United States, which they contend is in violation of
5 China’s population control program. For largely the same
6 reasons as this Court set forth in Jian Hui Shao, 546 F.3d
7 138, we find no error in the agency’s decisions. See id. at
8 158-72. While the petitioners in Jian Hui Shao were from
9 Fujian Province, Wu is from Zhejiang Province. However, as
10 with the evidence discussed in Jian Hui Shao, the evidence
11 Wu submitted relating to Zhejiang Province is deficient
12 either because it does not discuss forced sterilizations or
13 because it references isolated incidents of persecution of
14 individuals who are not similarly situated. See id. at 160-
15 61, 171-72.
16 Furthermore, contrary to Wu’s contention, the agency
17 provided a separate analysis of his CAT claim, and did not
18 err in summarily denying that claim insofar as it was based
19 on the same factual predicate as his asylum and withholding
20 of removal claims or insofar as it was based on his
21 purported illegal departure from China. See Paul v.
22 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006) (recognizing that
23 withholding of removal and CAT claims necessarily fail if
05212012-26 3
1 the applicant is unable to show the objective likelihood of
2 persecution needed to make out an asylum claim and the
3 factual predicate for the claims is the same); see also Mu
4 Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 159-60 (2d
5 Cir. 2005) (finding that a petitioner is not “entitled to
6 CAT protection based solely on the fact that she is part of
7 the large class of persons who have illegally departed
8 China.”).
9 For the foregoing reasons, the petition for review is
10 DENIED. As we have completed our review, Wu’s motion for a
11 stay of removal in connection with this petition is DENIED
12 as moot. Any pending request for oral argument in this
13 petition is DENIED in accordance with Federal Rule of
14 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
15 34.1(b).
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
18
19
05212012-26 4
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797 F.2d 978
Petersonv.State
85-3953
United States Court of Appeals,Ninth Circuit.
8/7/86
1
D.Or.
AFFIRMED
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐2484
ASHOKE DEB,
Plaintiff‐Appellant,
v.
SIRVA, INC., et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:13‐cv‐01245‐TWP‐DML — Tanya Walton Pratt, Judge.
____________________
ARGUED OCTOBER 29, 2015 — DECIDED AUGUST 11, 2016
____________________
Before FLAUM, MANION, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Ashoke Deb contracted with an In‐
dian moving company, Allied Lemuir, to move his belong‐
ings from Calcutta, India to St. John’s, Canada, but his belong‐
ings never left India. He now seeks to hold the defendants,
two United States companies, SIRVA, Inc. and Allied Van
Lines, Inc., responsible for the improper disposal and loss of
his personal property in connection with his move. SIRVA
and Allied moved to dismiss the complaint, arguing that Deb
2 No. 14‐2484
had failed to state a claim for which the court could grant re‐
lief, that he had failed to join a necessary party, and that the
United States federal courts were not the proper venue for his
claim. The district court agreed with the latter argument and
dismissed on the grounds of forum non conveniens. Deb ap‐
peals. Because we have determined that the district court did
not hold the defendants to their burden of demonstrating that
India was an available and adequate forum for this litigation,
we vacate and remand the case to the district court to do so.
I.
Because the defendants, SIRVA and Allied Van Lines,
moved to dismiss, we will construe the facts in the plaintiff’s
favor for now, but will discuss the nuances of our assump‐
tions below. Jackson v. Payday Fin., LLC, 764 F.3d 765, 773, n.19
(7th Cir. 2014), cert. denied, 135 S. Ct. 1894 (2015).
In August, 2009, in preparation for his move from Cal‐
cutta, India to his current home in St. John’s in the Province
of Newfoundland and Labradour, Canada, Deb, a citizen and
resident of Canada, contracted with an Indian company, Al‐
lied Lemuir, to move his personal belongings from Calcutta
to St. John’s. Deb’s belongings, however, never left India. On
September 5, 2009, Allied Lemuir e‐mailed Deb and informed
him that sea freight charges had risen substantially, and con‐
sequently, Deb would need to pay an additional amount of
money to have the items shipped. Deb refused to pay the ad‐
ditional amount and demanded that Allied Lemuir fulfill its
obligations under the contract as written. At the same time
that Deb was attempting to settle matters with Allied Lemuir
in India, he also contacted the defendants, the United States
companies of SIRVA and Allied Van Lines, in an effort to ob‐
tain his personal goods. Furthermore, from December 2010
No. 14‐2484 3
until May 2011, Deb’s Canadian counsel attempted to resolve
the issue with an attorney for Allied Van Lines Canada (“Al‐
lied Canada”).
Allied Lemuir sent Deb a letter dated January 30, 2010, de‐
manding additional charges that had accrued for demurrage,
fumigation, renewal of customs clearance, and sea freight.
The letter stated that if Deb failed to remit payment within
seven days, it would assume he was no longer interested in
the shipment. Deb did not respond to the letter directly, but
rather relied on his Canadian lawyer to pursue a resolution
by other means, including by contacting the defendants in
this case and corresponding with them over the course of sev‐
eral months. On August 11, 2010, SIRVA’s claim services de‐
partment responded to Deb’s inquiries, stating that they were
unable to identify any record of Deb’s shipment in SIRVA’s
system, but stated that if the move was through Allied or
North American, the claims service representative would for‐
ward the message to the proper party if Deb provided a reg‐
istration number. According to a letter dated August 26, 2010,
which Deb says he did not receive until it was sent to his coun‐
sel on April 12, 2013, Allied Lemuir eventually sold Deb’s
property to pay the additional amounts it had demanded
from Deb.
Deb filed a legal action against Allied Canada in the Su‐
preme Court of Newfoundland and Labrador, Canada, in the
Trial Division on November 5, 2010. And, a few years later,
on July 12, 2013, while the Canadian case was still pending,
he filed his complaint in this case in the Indiana State Superior
Court against SIRVA and Allied Van Lines, both of which are
Delaware corporations with their principal place of business
4 No. 14‐2484
in Illinois and corporate offices in Indiana.1 On August 5,
2013, the defendants jointly filed a successful notice of re‐
moval in the district court in the southern district of Indiana.
Deb seeks | {
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-7485
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RICHARD DONNELL RUDISILL,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:01-cr-00048-7; 1:04-cv-00238)
Submitted: March 7, 2007 Decided: April 13, 2007
Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Richard Donnell Rudisill, Appellant Pro Se. Thomas Richard Ascik,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Richard Donnell Rudisill seeks to appeal the district
court’s order denying relief on his 28 U.S.C. § 2255 (2000) motion.
The order is not appealable unless a circuit justice or judge
issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)
(2000). A certificate of appealability will not issue absent “a
substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2) (2000). A prisoner satisfies this standard by
demonstrating that reasonable jurists would find that any
assessment of the constitutional claims by the district court is
debatable or wrong and that any dispositive procedural ruling by
the district court is likewise debatable. Miller-El v. Cockrell,
537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484
(2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have
independently reviewed the record and conclude that Rudisill has
not made the requisite showing. Accordingly, we deny a certificate
of appealability and dismiss the appeal. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
DISMISSED
- 2 -
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In the
United States Court of Appeals
For the Seventh Circuit
No. 00-2665
United States of America,
Plaintiff-Appellee,
v.
Donald M. Higgins,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, Evansville Division.
No. EV 99 15 CR 01--Richard L. Young, Judge.
Argued December 1, 2000--Decided September 26, 2001
Before Posner, Diane P. Wood, and Williams,
Circuit Judges.
Diane P. Wood, Circuit Judge. From March
to the end of May 1999, Donald Higgins
carried out an elaborate scheme to
defraud several banks, a car dealer, and
others along the way. Caught red-handed
in Jacksonville, Illinois, with two cars
he had obtained with the bad checks, he
wound up facing one charge of bank fraud
in violation of 18 U.S.C. sec. 1344, to
which he pleaded guilty. At the initial
sentencing hearing, the district court
imposed a sentence of 51 months in
prison. Higgins appealed, but before this
court heard his appeal, the government
moved to remand the case for
resentencing. The remand was granted. At
this second sentencing hearing, Higgins
moved for the first time to withdraw his
guilty plea. The district court denied
the motion on the ground that the limited
nature of the remand did not permit
consideration of the issue, but it
reduced Higgins’s sentence to 41 months.
Higgins now reasserts on appeal the
argument that his guilty plea lacked an
adequate factual basis and should have
been set aside, and he attacks the new
sentence. We find no error in the
district court’s refusal to set aside the
plea, but we agree with Higgins that the
computation of the loss attributable to
his scheme--crucial to the computation of
the sentence--requires further attention.
I
Higgins began his scheme in March of
1999 by opening a bank account at Civitas
Bank in Evansville, Indiana, under the
name of E&S Enterprises. On April 16,
1999, Civitas closed the account because
it had a negative balance and unpaid
service fees of nearly $400. Civitas
notified Higgins that his account had
been closed.
One month after the closure of the
account, on May 17, 1999, Higgins went to
Kenny Kent Lexus and expressed interest
in buying two used Lexus automobiles. The
dealership agreed to sell them to him for
$69,900. Higgins gave the dealership a
check in that amount drawn on the closed
Civitas account. Perhaps anticipating
Kenny Kent’s inevitable discovery that
the account was closed, Higgins asked the
dealer to hold the check because he was
selling E&S Enterprises, closing the
Civitas account, and taking his banking
business to Old National Bank of
Evansville (ONB); he promised to replace
that check with another one drawn on the
Evansville bank. Kenny Kent agreed to do
so, and, to its later regret, allowed
Higgins to take one of the cars with him
that day.
The next morning, Higgins went to ONB
and asked to speak to the bank manager
about opening a checking account. Higgins
explained that he was dissatisfied with
the service he had been receiving at
Civitas and wanted to bring his banking
business to ONB. As the initial deposit
for his ONB account, Higgins presented
the bank manager with a $420,000 check
drawn on the closed E&S account at
Civitas. The manager began preparing the
documents to open the account while
Higgins took the check to one of the
tellers. The teller processed the check
and gave Higgins a deposit slip
indicating a $420,000 deposit. Higgins
also received temporary checks for his
new account.
With this false evidence of substantial
wealth in hand, Higgins left ONB and
returned to Kenny Kent. He showed the
dealer the $420,000 deposit slip and
wrote out a new check for $69,990. Kenny
Kent accepted the check and delivered the
second car to Higgins on the spot.
Meanwhile, back at ONB, the branch
manager had checked with Civitas about
Higgins’s check and discovered that there
were no funds to cover it. ONB
immediately stopped processing Higgins’s
account application.
Kenny Kent got the news that Higgins’s
check was bad on May 21, 1999, and it
promptly reported the fraud and the theft
of the cars to the police. Three days
later, the police caught up with Higgins
in Jacksonville, Illinois. The trail must
not have been too hard to follow: they
found him there because the Holiday Inn
where he was staying had reported that he
used a worthless check drawn on yet
another account, the First Bank of
Jacksonville, to pay his lodging bill.
Both Lexuses were still in the hotel’s
parking lot. He was arrested and later
indicted on one count of bank fraud
against ONB, in violation of 18 U.S.C.
sec. 1344, and one count of interstate
transportation of stolen motor vehicles,
in violation of 18 U.S.C. sec. 2312. In
exchange for Higgins’s agreement to plead
guilty to the bank fraud charge, the gov
ernment dropped the interstate
transportation charge.
Higgins entered his guilty plea on
October 19, 1999. The district court
accepted the plea after conducting the
usual inquiry under Fed. R. Crim. P. 11,
which included an inquiry designed to
ensure that there is an adequate factual
basis for the plea. See Fed. R. Crim. P.
11(f). In fact, Higgins had stipulated to
the facts underlying his plea in the plea
agreement. The district court sentenced
him to 51 months, in part based on its
conclusion that the loss attributable to
Higgins’s scheme was the full value of
the bad check he deposited at ONB, that
is, $420,000. The court’s later reduction
of the sentence to 41 months was based on
unrelated considerations and did not
reflect any change in this loss
calculation. Higgins now challenges both
the district court’s acceptance of his
guilty plea and the court’s loss
calculation for purposes of sentencing.
II
Higgins argues that he should be
permitted to withdraw his guilty plea to
the bank fraud charge because the facts
to which he stipulated are insufficient
as a matter of law to support a
conviction under 18 U.S.C. sec. 1344.
Higgins concedes that he is raising this
issue for the first time on appeal and
that our review is at most for plain
error. United States v. Cross, 57 F.3d
588 (7th Cir. 1995).
Higgins is complaining that the facts
that formed the basis of his conviction
showed no more than the knowing deposit
of a bad check and that this alone is not
enough to support a bank fraud
conviction. In order to support a
conviction under sec. 1344(1), the
government must prove that the defendant
engaged in a "pattern or course of
conduct designed to deceive a financial
institution with the intent to cause
actual or potential loss." United States
v. Ledonne, 21 F.3d 1418, 1427-28 (7th
Cir. 1994). It is not necessary for it to
prove that the defendant made any
specific misrepresentations or false
statements. United States v. Doherty, 969
F.2d 425, 429 (7th Cir. 1992). Simply
attempting to deposit a bad check does
not constitute a scheme to defraud, id.
at 427, but it can be evidence of a
pattern or course of conduct designed to
deceive a financial institution. Ledonne,
21 F.3d at 1428. To convict under sec.
1344(2), the government must prove both
that the defendant engaged in a scheme to
obtain the monies, funds, or credits of
the financial institution and that the
scheme involved "other acts or
communications of misrepresentation." Id.
at 1426. Again, merely writing a bad
check is not enough to constitute bank
fraud under this subsection; the
defendant must, in addition, have made
false representations or promises. Id.
If Higgins were correct that he admitted
under oath only the knowing deposits of
bad checks, we would need to consider to
what extent he would be entitled to
reopen his guilty plea proceedings. But
he is not: the facts to which Higgins
agreed go well beyond the knowing deposit
of a bad check and are sufficient to
support a conviction under either sec.
1334(1) or sec. 1334(2). Higgins violated
sec. 1334(1) when he presented the ONB
bank manager with the $420,000 Civitas
check, attempting (successfully) to
induce ONB to open | {
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} |
***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
YOUNG v. HARTFORD HOSPITAL—DISSENT
DEVLIN, J., dissenting. In this lawsuit, the plaintiff,
Wendy Young, seeks damages for injuries she allegedly
received while undergoing a robotic hysterectomy at
the defendant, Hartford Hospital. The plaintiff asserts
that her complaint sounds only in ordinary negligence
and, therefore, that the requirements to attach a good
faith certificate and written opinion regarding medical
negligence pursuant to General Statutes § 52-190a are
inapplicable. The trial court disagreed and granted the
defendant’s motion to dismiss. The majority reverses
based on its view that, when read ‘‘holistically and rea-
sonably,’’ the complaint, at least in part, alleges ordinary
negligence. In my view, the plaintiff’s complaint alleging
injury suffered during major surgery caused by a sophis-
ticated piece of medical equipment alleges medical neg-
ligence and only medical negligence. Accordingly, I
respectfully dissent.
The plaintiff’s complaint alleges the following rele-
vant facts.1 On May 11, 2016, the defendant possessed
a robotic surgical system used to assist in performing
hysterectomies. The plaintiff, on that same date, had a
robotic hysterectomy performed by Catherine C. Grazi-
ani, a physician. In the days following the surgery, the
plaintiff experienced pain and ‘‘a black and blue’’ on
her left side. On June 10, 2016, at an office visit with
Graziani, the plaintiff learned that a robotic camera
fell on her left side. Graziani had told the defendant’s
employees in charge of the machine, but the plaintiff
was not told of the incident.
The plaintiff’s complaint alleged seven specifications
of negligence:
‘‘a. allowing defective robotic equipment to be used
in assisting with a surgical procedure;
‘‘b. failing to inspect the robotic equipment prior to
its use on the plaintiff;
‘‘c. failing to properly secure the camera so that it
does not fall on patients;
‘‘d. failing to properly train its medical equipment
personnel to recognize that the camera was not secure
and could fall on patients;
‘‘e. operating the robot in such a manner to cause
the camera to fall;
‘‘f. failing to notify the plaintiff that the camera fell
on her;
‘‘g. failing to warn the plaintiff that the camera could
fall on her.’’
The issues raised in the defendant’s motion to dismiss
were (1) whether the plaintiff’s complaint is brought
against a health care provider and (2) whether it must
be supported by a certificate of good faith and written
opinion from a similar health care provider that there
appears to be evidence of medical negligence. See Gen-
eral Statutes § 52-190a. It is undisputed that the com-
plaint lacked such certificate and opinion. If the com-
plaint had, in fact, been brought against a health care
provider and alleged only medical negligence, this is a
fatal defect.
The trial court concluded that the plaintiff com-
menced this action against the defendant in its capacity
as a health care provider, and that the plaintiff’s allega-
tions against the defendant arose out of the medical
professional-patient relationship and were of a special-
ized medical nature, and were related to her medical
treatment and involved the exercise of medical judg-
ment. Accordingly, the court determined that the plain-
tiff’s failure to attach to her complaint a certificate of
good faith and a written opinion by a similar health
care provider in accordance with § 52-190a mandated
the dismissal of her claims.
The majority agrees, as do I, that the defendant is a
health care provider under applicable Connecticut law;
so the question comes down to whether the plaintiff’s
claim is one of ordinary negligence, as she asserts, or
medical negligence. As the majority correctly states,
this question is resolved by application of the three
part test set forth in Trimel v. Lawrence & Memorial
Hospital Rehabilitation Center, 61 Conn. App. 353, 764
A.2d 203, appeal dismissed, 258 Conn. 711, 784 A.2d 889
(2001). Based on Trimel, the relevant considerations
in determining whether a claim sounds in medical mal-
practice are whether (1) the defendants are sued in
their capacities as medical professionals, (2) the alleged
negligence is of a specialized medical nature that arises
out of the medical professional-patient relationship, and
(3) the alleged negligence is substantially related to
medical diagnosis or treatment and involves the exer-
cise of medical judgment. Id., 357–58.
As to the first prong of Trimel, the majority agrees
that the defendant has been sued in its capacity as a
health care provider. The majority further agrees that
the alleged negligence arose out of the medical profes-
sional-patient relationship. In the majority’s view, how-
ever, it is ‘‘not clear’’ that the injury necessarily was
caused by negligence of a specialized medical nature
or that the alleged negligence involved the exercise of
medical judgment.
A review of the cases in this area, both in Connecticut
and around the country, demonstrates that allegations
like those in the present case involved alleged negli-
gence of a specialized medical nature that is substan-
tially related to medical treatment and necessarily
involve the exercise of medical judgment.
In Nichols v. Milford Pediatric Group, P.C., 141
Conn. App. 707, 64 A.3d 770 (2013), this court addressed
a similar issue of whether negligence alleged during the
drawing of a blood sample in the course of a physical
exam satisfied the Trimel test and, thus, constituted a
claim of medical negligence. While his blood was being
collected, the plaintiff fell face first onto the floor of
the examining room, sustaining an injury. Id., 708. This
court stated: ‘‘A physical examination is care or treat-
ment that requires compliance with established medical
standards of care and, thus, necessarily is of a special-
ized medical nature.’’ Id., 714. As to whether the alleged
negligence related to medical diagnosis or treatment
and involved the exercise of medical judgment, the
plaintiff alleged that the defendant improperly trained
and supervised the agent who collected the plaintiff’s
blood. Id., 714–15. This court stated that ‘‘[a] physical
examination is related to medical diagnosis and treat-
ment of a patient; therefore, any alleged negligence
in the conducting of such examination is substantially
related to medical diagnosis or treatment. Further,
whether the defendant acted unreasonably by allowing
a medical assistant to collect blood samples unsuper-
vised and in the manner utilized and whether it suffi-
ciently trained its employee to ensure that any blood
collection was completed in a safe manner . . . clearly
involves the exercise of medical knowledge and judg-
ment.’’ (Internal quotation marks omitted.) Id., 715.
In Votre v. County Obstetrics & Gynecology Group,
P.C., 113 Conn. App. 569, 966 A.2d 813, cert. denied,
292 Conn. 911, 973 A.2d 661 (2009), the plaintiff sought
damages for the ‘‘falsehoods and broken promises’’ with
respect to whether the defendant had consulted with
and, should have referred the plaintiff to, the high risk
pregnancy group at Yale-New Haven Hospital. Id., 573–
75. In affirming the dismissal of the plaintiff’s complaint,
this court noted that, ‘‘[a]lthough the plaintiff denomi-
nated the claims in her complaint as sounding in tort
and breach of contract, the factual allegations underly-
ing the claims require proof of the defendant’s deviation
from the applicable standard of care of a health care
provider . . . . It is not the label that the plaintiff
placed on each count of her complaint that is pivotal
but the nature of the | {
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} |
177 F.Supp.2d 1378 (2001)
In re AUTOMOTIVE REFINISHING PAINT ANTITRUST LITIGATION
No. 1426.
Judicial Panel on Multidistrict Litigation.
November 15, 2001.
Before WM. TERRELL HODGES, Chairman, JOHN F. KEENAN, MOREY L. SEAR, BRUCE M. SELYA, JULIA SMITH GIBBONS, D. LOWELL JENSEN and J. FREDERICK MOTZ,[*] Judges of the Panel.
TRANSFER ORDER
HODGES, Chairman.
This litigation currently consists of the 22 actions listed on the attached Schedule A and pending in three federal districts as follows: twelve actions in the Eastern District of Pennsylvania, nine actions in the Western District of Pennsylvania, and one action in the District of Delaware.[1] Before the Panel are three motions pursuant to 28 U.S.C. § 1407 for coordinated or consolidated pretrial proceedings. All responding parties in the actions before the Panel agree that centralization is appropriate, but disagree on choice of transferee district.
Plaintiffs in five Eastern District of Pennsylvania actions move for coordinated or consolidated pretrial proceedings in that *1379 district. All domestic defendants also support 1407 centralization in the Eastern District of Pennsylvania.
Plaintiffs in seven Western District of Pennsylvania actions and two Eastern District of Pennsylvania actions move for coordinated or consolidated pretrial proceedings in the Western District of Pennsylvania. Plaintiff in the District of Delaware action moves for coordinated or consolidated pretrial proceedings in that district.
Interested party plaintiffs in five potential tag-along actions pending in the Western District of Kentucky suggest coordinated or consolidated pretrial proceedings in that district. Plaintiffs in three Eastern District of Pennsylvania actions and one Northern District of Ohio potential tag-along action support transfer to either of these two districts. Plaintiff in another Northern District of Ohio potential tag-along action also supports transfer to that district.
On the basis of the papers filed and hearing session held, the Panel finds that the 22 actions in this litigation involve common questions of fact, and that centralization under Section 1407 in the Eastern District of Pennsylvania will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. These actions share allegations concerning whether defendants participated in a combination or conspiracy to fix, raise, maintain, or stabilize the price of automotive refinishing paint products. Centralization under Section 1407 is thus necessary in order to eliminate duplicative discovery; prevent inconsistent pretrial rulings, especially with respect to class certification; and conserve the resources of the parties, their counsel and the judiciary.
We are persuaded that the Eastern District of Pennsylvania is the appropriate transferee forum for this docket. We note that: i) a grand jury potentially related to this litigation has been convened in the Eastern District of Pennsylvania; ii) a number of the defendants have a nexus in the Northeastern United States, so pertinent documents and witnesses can be expected to be found in that vicinity; and iii) at least some plaintiffs and all domestic defendants support centralization in this district. In addition, twelve of the 22 actions before the Panel and at least five potential tag-along actions are already pending in the Eastern District of Pennsylvania before one judge.
IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C. § 1407, the actions listed on the attached Schedule A and pending outside the Eastern District of Pennsylvania are transferred to the Eastern District of Pennsylvania and, with the consent of that court, assigned to the Honorable Richard Barclay Surrick for coordinated or consolidated pretrial proceedings with the actions listed on Schedule A and pending in that district.
SCHEDULE A
MDL-1426In re Automotive Refinishing Paint Antitrust Litigation
District of Delaware
AARC Distributors Inc. v. E.I. DuPont de Nemours & Co., et al, C.A. No. 1:01-4489
Eastern District of Pennsylvania
Car Color & Auto Body Supply Ltd. v. PPG Industries, Inc., et al., C.A. No. 2:01-2830
Golden Motors, Inc. v. PPG Industries, Inc., et al., C.A. No. 2:01-2906
Charles Lessard v. PPG Industries, Inc., et al., C.A. No. 2:01-2983
Randall Boltz v. PPG Industries, Inc., et al., C.A. No. 2:01-3020
*1380 Yuri Shneyder v. PPG Industries, Inc., et al., C.A. No. 2:01-3105
Sajon Investments, Inc. v. PPG Industries, Inc., et al., C.A. No. 2:01-3174
Howard J. Walters v. PPG Industries, Inc., et al., C.A. No. 2:01-3206
Mark Sharone v. Sherwin-Williams Co., et al., C.A. No. 2:01-3226
Nicastro Industries, Inc. v. Sherwin-Williams Co., et al., C.A. No. 2:01-3275
Crawford's Auto Center, Inc. v. E.I. DuPont de Nemours & Co., et al., C.A. No. 2:01-3437
Jacqueline Auto Body, Inc. v. PPG Industries, Inc., et al., C.A. No. 2:01-3470
Pasternacks Paint & Wallpaper Co., Inc. v. Sherwin-Williams Co., et al., C.A. No. 2:01-3650
Western District of Pennsylvania
Peter Sahagian v. PPG Industries, Inc., et al., C.A. No. 2:01-1159
Automotive Body & Tire Center, Inc. v. DuPont Performance Coatings, Inc., et al., C.A. No. 2:01-1173
Grant Park Garage, LLC v. PPG Industries, Inc., et al., C.A. No. 2:01-1183
Sid Kaprelian, et al. v. PPG Industries, Inc., et al., C.A. No. 2:01-1189
Affordable Auto Body Carstar, Inc. v. PPG Industries, Inc., et al., C.A. No. 2:01-1219
John Sahagian v. PPG Industries, Inc., et al., C.A. No. 2:01-1230
Anthony Koey v. PPG Industries, Inc., et al., C.A. No. 2;01-1231
Stephen Wilson v. PPG Industries, Inc., et al., C.A. No. 2:01-1232
Precise Autobody, Inc. v. PPG Industries, et al., C.A. No. 2:01-1271
NOTES
[*] Judge Motz took no part in the decision of this matter.
[1] The parties have notified the Panel of 35 additional related actions pending as follows: seventeen in the Western District of Pennsylvania; five each in the Western District of Kentucky, District of New Jersey, and Eastern District of Pennsylvania; and three in the Northern District of Ohio. These actions and any other related actions will be treated as potential tag-along actions. See Rules 7.4 and 7.5, R.P.J.P.M.L., 199 F.R.D. 425, 435-36 (2001).
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People v Ulerio (2017 NY Slip Op 03448)
People v Ulerio
2017 NY Slip Op 03448
Decided on May 2, 2017
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on May 2, 2017
Renwick, J.P., Richter, Andrias, Gesmer, JJ.
270 5149/07
[*1]The People of the State of New York, Respondent,
vWilly Ulerio, Defendant-Appellant.
An appeal having been taken to this Court by the above-named appellant from a judgment of the Supreme Court, New York County (Robert Straus, J.H.O. at suppression hearing; Gregory Carro, J. at suppression decision; Daniel P. FitzGerald, J. at trial, motion to set aside verdict and sentencing), rendered November 9, 2012,
Said appeal having been argued by counsel for the respective parties, due deliberation having been had thereon, a decision and order of this Court having been entered on March 24, 2016, holding the appeal in abeyance (137 AD3d 629 [1st Dept 2016]), and upon the stipulation of the parties hereto dated April 12, 2017,
It is unanimously ordered that the said appeal be and the same is hereby withdrawn in accordance with the terms of the aforesaid stipulation.
ENTERED: MAY 2, 2017
CLERK
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204 Va. 462 (1963)
ELIZABETH PARKER BARTSCH
v.
SIGNE G. BARTSCH.
Record No. 5611.
Supreme Court of Virginia.
September 11, 1963.
C. Wynne Tolbert and Brainard H. Warner, III, for the appellant.
Present, Eggleston, C.J. and Spratley, Buchanan, Snead, I'Anson and Carrico,
Signe Bartsch was granted a decree of divorce a mensa et thoro from Paul Bartsch in the District of Columbia in 1933, receiving an award of alimony of $180 a month. He tried unsuccessfully in 1938 to have the decree enlarged into one for an absolute divorce. In 1939 he obtained a divorce in Reno and at once married appellant Elizabeth Bartsch. Signe Bartsch was personally served in the Nevada proceeding but made no appearance. Not until 1950 did she take any action to attack the Nevada decree, and that suit she dismissed voluntarily and continued to receive alimony payments. Upon Bartsch's death in 1960 she instituted the present suit to be declared his lawful widow on the ground the Nevada court lacked jurisdiction and its decree was a nullity. It was held that she was precluded from relief by her laches, the doctrine being applicable because of her unreasonable delay, the death of Bartsch who would have been a material witness, and the injury which would result to the second wife if relief should be granted.
Appeal from a decree of the Circuit Court of Fairfax county. Hon. Albert V. Bryan, Jr., judge presiding. The opinion states the case.
Whitford W. Cheston, for the appellee.
SPRATLEY
SPRATLEY, J., delivered the opinion of the court.
Mrs. Signe G. Bartsch, [1] sometimes hereinafter called appellee, filed in the Circuit Court of Fairfax county, Virginia, on December 19, 1960, an application for a declaratory judgment against Elizabeth *463 Parker Bartsch, hereinafter called appellant. It was alleged that appellee was married on June 21, 1902, in the District of Columbia, to Paul Bartsch, sometimes hereinafter called Dr. Bartsch; that on April 4, 1933, she was granted a divorce a mensa et thoro from Bartsch on the grounds of cruelty in the U.S. District Court for the District of Columbia; that on May 17, 1938, the petition of Bartsch for "enlargement" of said decree into a decree for an absolute divorce was dismissed with prejudice; that on September 30, 1939, Bartsch obtained a decree for an absolute divorce from appellee in Reno, Nevada; that the Nevada court was without jurisdiction as Bartsch "was not a domiciliary of the State of Nevada at the time of that divorce proceeding, but was actually a resident and domiciliary of the District of Columbia;" that the sole purpose of Bartsch in going to Nevada was to obtain a divorce so that he could marry the appellant; that appellee was not served with process in said case in the State of Nevada, nor did she participate therein "in any fashion;" that on September 30, 1939, Bartsch and appellant "did go through a marriage ceremony" in Reno, Nevada, and that said ceremony was a nullity. It was further alleged that Bartsch immediately returned after the ceremony to the District of Columbia, where he resumed his position with the Federal government, from which he had taken a leave of absence; that Bartsch died April 24, 1960, at the age of 88; that his will was probated in Fairfax county, Virginia, his residence at the time of his death; that on June 3, 1960, appellant qualified as executrix of the estate of Bartsch; and that on December 19, 1960, appellee renounced the will of Bartsch and elected to take her statutory share of his estate as his widow.
Appellee asked that the court declare her to be the lawful widow of Paul Bartsch; that the decree of divorce which he obtained in Nevada be declared null and void. She assigned no reason for her delay in challenging the validity of the Nevada divorce decree entered 21 years prior thereto.
Appellant demurred to appellee's petition on the grounds that the proceeding in Nevada was regular in all respects and the decree entitled to full faith and credit in Virginia; and that appellee was guilty of laches and unreasonable delay in instituting this proceeding. The trial court being of opinion that evidence should be taken before a final determination of the question raised by the demurrer, overruled the demurrer and granted appellant leave to file an answer. Appellant filed an answer denying the pertinent allegations of the petition and asserting the grounds of her demurrer in defense. *464
The evidence was heard ore tenus, and at the conclusion thereof, a final decree was entered declaring Signe Bartsch, appellee, to be the lawful widow of Paul Bartsch, deceased. Included in the decree was a finding of facts, setting out the legal proceedings in the several suits between appellee, Signe Bartsch and Dr. Paul Bartsch, and the conclusion that the Nevada court was without jurisdiction to enter the decree of September 30, 1939, because the domicile and legal residence of Bartsch was, on the date of the decree and for several years prior thereto, in the District of Columbia; "that under the authority of Howe Howe, 179 Va. 111, 18 S.E.2d 294, the court doth find the doctrine of laches inapplicable to this suit;" and "that at the time of the death of Bartsch on April 24, 1960, he was lawfully married to Signe G. Bartsch."
Appellant duly excepted to the finding of the court and to its conclusions of law. On petition of appellant, we granted this appeal.
Paul Bartsch, a scientist, teacher and lecturer, holding a Doctor's degree, was employed by the United States National Museum, Washington, D.C. continuously from 1896 until his retirement in 1946. After his marriage to appellee in 1902, the couple lived together until some time in August, 1929, when they separated. Subsequently, appellee filed a suit for divorce in Washington, D.C., which was later dismissed upon a reconciliation being effected between the parties. They were unable, however, to keep their differences adjusted, and on March 9, 1931, appellee filed a second suit in the District of Columbia for a divorce a mensa et thoro on the grounds of cruelty. On April 4, 1933, she was awarded a decree of divorce a mensa et thoro. Bartsch was directed to pay to her the sum of $180.00 per month as permanent alimony.
Thereafter, on April 29, 1936, Bartsch filed a suit against the appellee in the District of Columbia, praying for an absolute divorce upon the ground that the parties had voluntarily lived separate and apart more than five years.
Appellee appeared, answered and moved the court to dismiss the proceeding, in that the matter in controversy between the parties had become res adjudicata by reason of the decree of April 4, 1933 between the parties. On May 17, 1938, after a hearing, the suit "was dismissed."
On July 1, 1939, Bartsch went to Reno in Washoe county, Nevada. After staying there for "the statutory period," he filed a suit in the Second Judicial District Court of the State of Nevada, in and for the *465 County of Washoe, for an absolute divorce from appellee. A hearing was had on the 30th day of September, 1939, and a final decree was entered on that day, awarding Bartsch an absolute divorce. The decree further ordered Bartsch to pay $100.00 per month to Signe Bartsch, until her death or remarriage.
Photostatic copies of a portion of the record in the Nevada proceeding were presented as exhibits in the present proceeding. The decree of September 30, 1939, recites that the cause came on to be heard "upon the complaint of the plaintiff, and the default of the defendant therein, after defendant's having been personally served with a certified copy of the complaint and summons issued herein." The court found, "as a matter of fact, that each and every and all the allegations of plaintiff's complaint are true," and concluded, "as a matter of law, that plaintiff is entitled to a judgment and decree for an absolute divorce," and it so adjudged. A copy of the summons in that case contained an affidavit by a deputy sheriff of Osceola county, Florida, that on August 29, 1939, he personally served the summons by delivering on that day "to Signe G. Bartsch, the said defendant, personally, in St. Cloud, County of Osceola, State of Florida, a copy of the annexed summons attached to a duly certified copy of the complaint," in the Nevada suit.
Also there is a certified copy of the transcript of the testimony, in which Bartsch testified that he had come to Washoe county, Nevada, on July 1, 1939, with the intention of making that place his home; that it was still his home; that the allegations of his complaint were true; and that he and Mrs. Signe Bartsch had lived separate and apart for about ten consecutive years last past without cohabitation. Another witness, testifying on September 30, 1939, said that he knew Bartsch, and that the latter had lived in Washoe county continuously since July 1st of that year.
No copy of the bill in the Nevada proceeding was presented in evidence, and there was no proof offered as to the period of residence required for jurisdiction of a divorce proceeding in Nevada.
The | {
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703 S.W.2d 19 (1985)
George BOYD, Appellant,
v.
DIRECTOR OF REVENUE, State of Missouri, Respondent.
No. WD 36693.
Missouri Court of Appeals, Western District.
November 12, 1985.
Motion for Rehearing and/or Transfer Denied December 24, 1985.
Application to Transfer Denied February 18, 1986.
*20 Peter J. Koppe, Kansas City, for appellant.
Albert A. Riederer, Pros. Atty., and Robert Frager, Asst. Pros. Atty., Jackson County, Kansas City, for respondent.
Before NUGENT, P.J., and SHANGLER and MANFORD, JJ.
Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied December 24, 1985.
MANFORD, Judge.
This is a direct appeal from a judgment affirming the ruling of the Missouri Director of Revenue which ordered, alternatively, the posting of a bond or the suspension of appellant's motor vehicle registration and motor vehicle operator's license. The judgment is affirmed.
Appellant presents a sole point which, in summary, charges that the trial court erred in affirming the decision of the Missouri Director of Revenue because neither the findings nor the decision of the Director was based upon sufficient evidence.
This cause arises out of an automobile accident that occurred at the intersection of Paseo and Brush Creek Boulevards in Kansas City, Missouri. Appellant was driving out of a private drive on Paseo when the front of his vehicle struck the passenger side of a vehicle owned and driven by one Vincent Tortorice. Tortorice had automobile insurance coverage for his vehicle; appellant did not have coverage for his vehicle.
On June 6, 1984, the Department of Revenue notified appellant that after review of the accident reports, it had determined that there was "a reasonable possibility of a money judgment being rendered against [him]." Appellant requested a hearing pursuant to § 303.290, RSMo (1978). The director issued its Findings of Fact and Conclusions of Law on August 6, 1984, stating it had again determined that there was "a reasonable likelihood that a judgment will be rendered against George Boyd." Appellant then filed a petition for review in the Circuit Court of Jackson County. The circuit court affirmed the decision of the Director without a hearing. The court found that: "While there is some evidence to the effect that the other driver in the accident ran a stop sign, the evidence is not sufficient to preclude a finding that Petitioner might still have a judgment rendered against him ..."[1]
The record before the Director included the police report, accident reports from both drivers, and affidavits from appellant and a passenger of appellant's car. The *21 Director concluded that a "reasonable likelihood" exists that a judgment will be rendered against appellant. The police report showed damage to the right side of the other vehicle and the front of appellant's vehicle, which indicates that appellant struck the other vehicle. Appellant was pulling out of a private driveway. The other vehicle was on a public thoroughfare and had the right of way. The police report reflects that appellant told the officer at the scene that he did not see the other automobile before the accident. The reasonable conclusion is that appellant entered the street from a private driveway, without yielding to traffic, struck the side of Tortorice's vehicle, and that appellant is reasonably likely to have a judgment rendered against him in an action by Tortorice for damages. This evidence was before the circuit court.
Appellant challenges the sufficiency of the evidence to support the decision of the Director. He argues the evidence adduced at the hearing showed that the other driver may have failed to observe a stop sign, and the Director's conclusion that there is a "reasonable likelihood" a judgment will be rendered against him is against the weight of the evidence.
The Director of Revenue must "determine the amount of security which shall be sufficient in his judgment to satisfy any judgment for damages" against the uninsured party in any accident in this state in which an uninsured motorist is involved. Section 303.030.1 RSMo Supp. (1985). The Director must then require the uninsured party to deposit that amount as security within ten days, and, if he does not comply, suspend his license and registration. Section 303.030.2. The uninsured party may request a hearing to contest the Director's determination, under the provisions of Chapter 536, the Administrative Procedure Act. Randle v. Spradling, 556 S.W.2d 10, 11 (Mo. banc 1977). If the uninsured party receives an adverse ruling again after the hearing, she or he may appeal to the circuit court of the county in which they reside for de novo review. Section 303.290.2 RSMo (1978).
This matter not only places before this court the disposition of this particular case, but as observed infra, construction of § 303.290.2, RSMo 1978, and particular sections of Chapter 536, RSMo 1978, is required.
The judicial review of proceedings before the Missouri Director of Revenue are prescribed by § 303.290.2. This section reads as follows:
Any decision, finding or order of the director, under the provisions of this chapter, shall be subject to review by appeal to the circuit court of the county of the residence of the licensee, at the instance of any party in interest, in the manner provided by chapter 536, RSMo, at any time within thirty days after notice is given the licensee of such decision, finding or order. Upon such appeal the cause shall be heard de novo and the circuit court may determine the reasonableness of the director's decision, finding or order, and in disposing of the issues before it may modify, affirm, or reverse the decision, finding or order in whole or in part. Appeals from the judgment of the circuit court may be taken as in civil cases. The prosecuting attorney of the county where such appeal is taken shall appear in behalf of the director, and prosecute or defend as the case may require. (emphasis added)
It can be readily observed within the foregoing section that review by the circuit court may be invoked in the manner prescribed by Chapter 536. That provision seems simple enough if that was all that had to be considered. However, § 536.100, RSMo 1978 prescribes that aggrieved persons shall be entitled to judicial review pursuant to §§ 536.100-536.140, RSMo 1978. Within § 536.100, however, is the following limitation: "unless some other provision for judicial review is provided by statute; ...", and thus, § 303.290.2 again becomes applicable and controlling.
Section 303.290.2 further contains the following provision: "Upon such appeal the cause shall be heard de novo and the circuit *22 court may determine the reasonableness of the director's decision, ..." (emphasis in original).
Before proceeding further, it should be noted that perhaps the decision herein and the construction given the particular statutory provisions are in conflict with the ruling announced in Spradling, but this court perceives the Spradling ruling as not addressing the particular issue presented herein. In Spradling, the Missouri Supreme Court ruled that a proceeding prescribed by § 303.290 is a contested case and thus the provisions of Chapter 536 apply. Thus, the Spradling ruling did not reach or address issues, and/or questions which might arise subsequent to the proceedings before the Director. The parties in the instant case do not challenge the applicability of Chapter 536 as regards the part of these proceedings before the Director.
As noted supra, in addition to appellant's challenge to the sufficiency of the evidence, the instant case requires this court to consider both § 303.290.2 and Chapter 536, how they interrelate when the matter is before the circuit court, and the scope of review by this court subsequent to the determination by the circuit court.
Section 303.290.2 directs that review of the Director's decision shall be available pursuant to Chapter 536. However, once jurisdiction is lodged in the circuit court, § 303.290.2 prescribes that the circuit court shall hear the matter de novo. De novo has been defined as, "[A] new trial or retrial had in which the whole case is retried as if no trial whatever had been had in the first instance." Blacks Law Dictionary 1349 (5th ed. 1979) Proceedings of this nature then are subject to § 303.290.2 and not Chapter 536.
Section 303.290.2 requires the circuit court to rehear the matter anew. In meeting its responsibility of harmonizing the statutory law of our state, this court construes Chapter 536 and § 303.290 as follows: Licensees and interested parties and the proceedings within § 303.290 are subject to the rule announced in Spradling. Judicial review of such proceedings may be initiated by a petition for review filed in the county of the licensee at the instance of any interested party. At such time a petition for review is filed, the circuit court shall hear and dispose of the matter de novo which shall require a notice to the parties and the parties shall be permitted to introduce additional evidence, if any, but not duplicative of the evidence before the Director, and the circuit court shall then enter its judgment upon the whole of such evidence. Throughout such proceedings, the Director shall bear the burden of proof, by a preponderance of the evidence, to establish the reasonableness of the Director's decision. Any subsequent appeal shall be from the judgment of the circuit court and not from the decision of the Director.
In the instant case, there is nothing which suggests that any of the parties desired, or in any manner sought, the submission of any additional evidence to that previously submitted to the Director. The challenge to the evidence then is to that evidence submitted exclusively to the Director. Review by this court is then limited to the judgment of the circuit | {
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IN THE
TENTH COURT OF APPEALS
No. 10-10-00310-CR
RUSSELL WADE EASON,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2010-3012
MEMORANDUM OPINION
Russell Wade Eason attempts to appeal the trial court’s denial of his “Request
Filing of this Motion Formal Bills of Exception and Motion for Formal Bills of
Exception.” By letter dated September 7, 2010, the Clerk of this Court notified Eason
that his appeal was subject to dismissal because it appeared that the order about which
he complained was not an appealable order. Eason was warned that the Court would
dismiss the appeal unless a response was filed showing grounds for continuing the
appeal. Eason filed a response, but it fails to show grounds for continuing the appeal.
Accordingly, the appeal is dismissed. See TEX. R. APP. P. 42.3; 44.3.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Appeal dismissed
Opinion delivered and filed October 6, 2010
Do not publish
[CRPM]
Eason v. State Page 2
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539 F.2d 435
UNITED STATES of America, Plaintiff-Appellee,v.Douglas McDOWELL, Defendant-Appellant.
No. 76-1361
Summary Calendar.*
United States Court of Appeals,Fifth Circuit.
Sept. 23, 1976.
Craig R. Wilson, Edward A. Gross, West Palm Beach, Fla., for defendant-appellant.
Robert W. Rust, U. S. Atty., Don R. Boswell, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before BROWN, Chief Judge, and GEWIN and MORGAN, Circuit Judges.
GEWIN, Circuit Judge:
1
Appellant, Douglas McDowell, was convicted after a jury trial of two counts of possession with intent to distribute cocaine, and two counts of distribution of cocaine, all in violation of 21 U.S.C. § 841(a)(1). He was sentenced to a five-year term on each count, to be served concurrently. On this appeal he argues that the trial court erred in the following rulings: (1) refusing to propound certain requested voir dire questions to the jury panel, (2) admitting certain evidence, (3) allowing the prosecutor to make allegedly highly prejudicial remarks during closing argument, and (4) sentencing appellant on all counts. After carefully reviewing the record and briefs, we find these contentions to be without merit and affirm.
2
The government's key witness was Clarence Lydes, a convicted felon. In March of 1975, Lydes was incarcerated in the Palm Beach County Jail on several state charges. After negotiations with the sheriff's office and Drug Enforcement Administration (DEA), it was agreed that Lydes would work for the DEA and make cases on known drug dealers. He was released on $350 bond. He was paid $25 per day in expense money, had the use of an apartment and a car, and received $2000 in relocation money. The state charges were dismissed about the same time that Lydes' employment was ended. Lydes was requested to make contact with appellant, whom he had known for about five years.
3
Lydes met with appellant at appellant's apartment in the first week of April, 1975. Lydes indicated he had a friend from Fort Pierce who wanted an ounce of "coke." The first transaction took place on April 6, 1975, when Lydes was accompanied by DEA Agent Wells to appellant's apartment. Wells was introduced as "Little Man", a narcotics dealer from Fort Pierce. Appellant gave Wells four spoons of cocaine (28 grams) in return for $1000. During the transaction appellant stated he had been "selling dope since '69" and had never been convicted. Another transaction occurred on April 11, when four more spoons of cocaine were purchased for $1000. During this transaction, appellant told Lydes to give "Little Man" his (appellant's) telephone number so "Little Man" could reach him when he got back from Fort Pierce.
4
Agent Wells corroborated Lydes' story and identified government exhibits 1 and 2 as the cocaine he had purchased from appellant. He also testified concerning the chain of custody of the exhibits. DEA Agent Campbell testified concerning his surveillance of the two purchases and the chain of custody of the exhibits. DEA Chemist Cooper testified that the substance in exhibits 1 and 2 was cocaine hydrochloride. Appellant did not take the stand. The jury found him guilty on all counts.
5
Appellant complains that the trial court erred in not asking the jury certain requested voir dire questions. The questions were:
6
8. Please state the name of any church, social club, fraternity or other organization to which you currently belong or were a member of within the past five (5) years.
7
16. Would the race or religion of any of the parties, witnesses or attorneys have any bearing on your decision in this case?
8
Rather, the court instructed the jury as follows:
9
THE COURT: This is a temple of justice; and this Court and all Courts in the nation, every person stands equal before the law, regardless of race, or color or religion, affiliation or nationality or sex or any other consideration.Would you accept my statement to that effect and do you agree with it, each of you?
THE JURORS: (Indicate in affirmative.)
10
THE COURT: You will give the United States Government and this individual who is sitting here, represented by these two lawyers, capable lawyers, the same fair, impartial consideration in your verdict, without any preference one way or the other, in an effort to do justice in this case; will each of you do that?
THE JURORS: (Indicate in affirmative.)
11
The trial court possesses extensive discretion in conducting the voir dire examination, but is subject to the essential demands of fairness. United States v. Fernandez-Piloto, 426 F.2d 892 (5th Cir. 1970). There must be an abuse of that discretion for reversal on appeal. United States v. Hill, 500 F.2d 733 (5th Cir. 1974), cert. denied, 420 U.S. 952, 95 S.Ct. 1336, 43 L.Ed.2d 430 (1975). Appellant has shown no such abuse. Even in this court appellant has completely failed even to state the relevancy of his proposed inquiry number 8. The court's instruction and inquiry that are quoted above were more than adequate to meet appellant's extremely generalized and unexplicated fear that members of the jury venire might have been prejudiced against him because of his race.1 The district court did not err in refusing to give appellant's inquiry number 16.
12
Appellant also alleges that the trial court erred in admitting the cocaine (government exhibits 1 and 2) over objection. He contends that the government did not establish a proper chain of custody. He argues there was no testimony that the evidence was weighed or field-tested before it was turned over to the DEA chemist. He also alleges that the evidence was stored with evidence in other cases and could have become intermingled with it.
13
Our decision in United States v. Daughtry, 502 F.2d 1019 (5th Cir. 1974), is quite instructive with respect to the admission of narcotics exhibits. That case involved the admission of heroin. In it we first noted that the admission of evidence is within the trial court's broad discretion and that his decision concerning it will not be disturbed absent abuse of that discretion. We quoted with approval the criteria for admission of exhibits stated by the Eighth Circuit in United States v. Brown, 482 F.2d 1226, 1228 (8th Cir. 1973) (citations omitted):
14
(T)here must be a showing that the physical exhibit being offered is in substantially the same condition as when the crime was committed . . . Factors to be considered in making the determination of admissibility include the nature of the article, the circumstances surrounding its preservation and custody, and the likelihood of others tampering with it. If upon the consideration of such factors, the trial judge is satisfied that in reasonable probability the article has not been changed in any important respect, he may permit its introduction in evidence.
15
502 F.2d at 1022 n. 3. The chain of custody revealed by the testimony at trial clearly satisfied the Brown-Daughtry criteria.
16
Agent Wells testified that he placed the substance that appellant had sold him into bags and sealed them immediately upon his return to the DEA apartment. He also placed the DEA seal on the bags and his name and the date. The seals had not been disturbed or tampered with. Agent Campbell's testimony supported that of Wells. Wells transmitted the bags to Sergeant Liles, a member of the DEA Task Force. Sergeant Liles locked the bags in a footlocker. Subsequently, the bags were received by DEA Chemist Cooper and they were undisturbed. After his tests, he sealed the bottom of the bags, which he had opened to remove the samples. Cooper also testified that at the time of trial the bags did not appear to have been tampered with and appeared to be exactly the same as after he sealed them.
17
Appellant introduced no evidence that the exhibits had been tampered with and there is no evidence of foul play. The cocaine was in two independent, identifiable, sealed packets and there was no evidence that it was commingled with other narcotics. The trial court did not abuse its discretion in admitting the exhibits.
18
Appellant asserts that the prosecutor's comments during closing argument were extremely prejudicial and constitute reversible error. The comments objected to are as follows:
19
(Prosecutor:) . . . Ladies and gentlemen, I just want to conclude with this point: I think the issue in this case in my own mind boils down to this: It boils down to the credibility of the witnesses. There is no conflict in the testimony of any of the witnesses in this case, so in essence let me just put it to you this way: If you believe that Clarence Lydes, the informant, lied to you this morning, if you believe that Agent Wells lied to you this morning, if you believe that Mr. Campbell lied to you this morning, and if you believe that the chemist lied to you this morning, then it is your duty to return a verdict of not guilty.
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537 U.S. 1052
MOOREv.VANDEL ET AL.
No. 02-6592.
Supreme Court of United States.
December 2, 2002.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.
2
C. A. 5th Cir. Certiorari denied. Reported below: 48 Fed. Appx. 106.
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887 F.Supp. 86 (1995)
HARBOR SOFTWARE, INC., Plaintiff,
v.
APPLIED SYSTEMS, INC., Defendant.
No. 92 Civ. 8097 (HB).
United States District Court, S.D. New York.
June 5, 1995.
*87 Jeffrey C. Slade, Leventhal Slade & Krantz, New York City, for plaintiff.
Jeffrey D. Ullman, Ullman, Furhman, Platt & Koy, Morristown, NJ, for defendant.
OPINION AND ORDER
BAER, District Judge:[1]
Plaintiff Harbor Software has asserted six causes of action against defendant Applied Systems, all of which involve the alleged *88 copying or misappropriation of part, or all, of Harbor's computer software package "Sales Center Manager" ("SCM"). Defendant produced and put on the market a computer software package called "The Agency Manager" ("TAM") which, plaintiff alleges, contains all, or substantial parts, of SCM. Both software programs appear to perform the same functions, which enable insurance companies to automate their marketing activities. Plaintiff alleges copyright infringement, trade secret misappropriation, unfair competition, unjust enrichment, fraud, and Lanham Act violations.
Defendant Applied Systems has moved for summary judgment on all causes of action except copyright infringement, relying primarily on its assertion that the facts adduced thus far indicate that plaintiff cannot sustain various elements of the subject claims. Def.'s Mem.L.Supp.Mot.Summ.J. at 1. In addition, defendant asserts that the Copyright Act, 17 U.S.C. § 301, preempts the trade secret misappropriation and unfair competition claims. Id.
The Court heard oral argument on this motion on January 31, 1995. For the reasons set forth herein, defendant's motion for summary judgment is DENIED in its entirety.
I. BACKGROUND
Plaintiff Harbor Software is a Michigan corporation whose principal product, SCM, was created chiefly by its president Jeffrey Tollaksen. Defendant's representatives saw Tollaksen demonstrate SCM at two insurance industry conventions in late 1988, and asked Tollaksen about the possibility of integrating defendant's program, TAM, with SCM. Tollaksen visited defendant's headquarters in May 1989 to further demonstrate SCM. Before demonstrating the software, Tollaksen requested that Thomas Eustace, who was then managing Applied Systems, sign a confidentiality agreement. Eustace refused to sign the agreement, but, according to plaintiff, assured him that "the confidentiality agreement would be part of whatever business agreement was eventually worked out." Pl.'s Mem.L.Opp'n Mot.Summ.J. at 6.
Shortly thereafter, plaintiff and defendant entered into an agreement whereby Tollaksen worked at defendant's headquarters to explore the possibility of integrating SCM with TAM. Defendant was then considering either integrating SCM with TAM, or marketing SCM as a stand-alone product. Def.'s Mem.L.Supp.Mot.Summ.J. at 7. Defendant agreed to pay Tollaksen $2,000 per month for 40 hours of work each month, plus $50 per hour for every additional hour spent working on the integration. Defendant paid Tollaksen $8,500 between February 1989 and May 1989 pursuant to this agreement. Id. at 9. While working on this project, Tollaksen loaded portions of the SCM source code onto defendant's computers. Pl.'s Mem.L.Opp'n Mot.Summ.J. at 9. Defendant disputes the period of time during which SCM was loaded onto its computers and denies that its employees could, as a result, access the source code without Tollaksen's knowledge. Def.'s Mem.L.Supp.Mot.Summ.J. at 9.
Plaintiff asserts that Tollaksen had completed the integration of SCM and TAM by the end of his stay there in May 1989, Pl.'s Mem.L.Opp'n Mot.Summ.J. at 9; defendant, meanwhile, challenges this characterization of the work's state, Def.'s Mem.L.Supp.Mot. Summ.J. at 11. Defendant then ceased negotiations with plaintiff on possibly acquiring licensing rights for SCM. According to plaintiff, this was effected by a phone call from Eustace, who stated, "The business deal is not going to go through." When Tollaksen asked why, Eustace explained that a certain search performed by SCM had been completed "too slow[ly]." When Tollaksen stated that this could be corrected, Eustace allegedly responded that it did not matter. Pl.'s Mem.L.Opp'n Mot.Summ.J. at 10. In the spring of 1990, plaintiff discovered that defendant had released a new version of TAM. Plaintiff relates that the similarities of that software program to SCM prompted this litigation.
II. THE COPYRIGHT ACT: PREEMPTION OF STATE LAW CLAIMS?
Defendant argues in support of its motion for summary judgment that certain of *89 plaintiff's causes of action are preempted by the federal Copyright Act. Section 301(a) of the Copyright Act expressly preempts actions that would be tantamount to state law copyright claims. However, Section 301(b) of the Act specifically permits state law claims "that are not equivalent to any of the exclusive rights within the general scope of copyright" of the Act. Whether or not a state claim is preempted by the Copyright Act depends on whether there is some "extra element" involved in the state law cause of action that "changes the nature of the action so that it is qualitatively different from a copyright infringement claim." Mayer v. Josiah Wedgwood & Sons, Ltd., 601 F.Supp. 1523, 1535 (S.D.N.Y.1985); see also Computer Assocs. Int'l, v. Altai, Inc., 982 F.2d 693, 716 (2d Cir.1992); Harper & Row Publishers v. Nation Enters., 723 F.2d 195, 200-01 (2d Cir.1983), rev'd on other grounds, 471 U.S. 539, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985).
State law causes of action that have been held not to be preempted by the Copyright Act include breach of confidentiality, breach of trust, unfair competition, and trade secret misappropriation. Computer Assocs. Int'l, 982 F.2d at 717 (stating that many state law causes of action are not preempted (citing Balboa Ins. Co. v. Trans Global Equities, 218 Cal.App.3d 1327, 267 Cal.Rptr. 787, cert. denied, 498 U.S. 940, 111 S.Ct. 347, 112 L.Ed.2d 311 (1990))); see also Mayer, 601 F.Supp. at 1536 (1985) (breach of confidentiality and unjust enrichment); DC Comics, Inc. v. Filmation Assocs., 486 F.Supp. 1273 (S.D.N.Y.1980) (unfair competition). Accordingly, I reject defendant's assertion that plaintiff's trade secret misappropriation and unfair competition claims are preempted.
III. SUMMARY JUDGMENT STANDARD
Rule 56 of the Federal Rules of Civil Procedure provides for summary judgment where the evidence shows that "there is no genuine issue as to any material fact and [that] the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). "Summary judgment is properly regarded ... 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 Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 1). In determining whether there is a genuine issue of material fact, a court must resolve all ambiguities, and draw all inferences, against the moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam); Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir.1987). An issue of credibility is insufficient to preclude the granting of a motion for summary judgment. Neither side can rely on conclusory allegations; instead, the disputed issues of fact must be supported by evidence that would allow a "rational trier of fact to find for the nonmoving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Finally, factual disputes that are irrelevant to the disposition of the suit under governing law will not preclude entry of a summary judgment. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.
IV. ILLINOIS TRADE SECRETS ACT
Both parties agree that the law to be applied for state claims in this action is that of Illinois. The relevant statute governing the trade secret misappropriation cause of action is the Illinois Trade Secrets | {
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900 S.W.2d 316 (1995)
Bruce WEINER, M.D., Petitioner,
v.
Emmanuel WASSON, Respondent.
No. 94-0541.
Supreme Court of Texas.
Argued January 5, 1995.
Decided June 8, 1995.
Rehearing Overruled July 21, 1995.
*317 Sam A. Houston, Houston, for petitioner.
David W. Holman, Richard P. Hogan, Jr., Kevin H. DuBose, Richard W. Ewing, W. James Kronzer, Jr., Houston, for respondent.
CORNYN, Justice, delivered the opinion of the Court, joined by GONZALEZ, HIGHTOWER, GAMMAGE, ENOCH and SPECTOR, Justices.
OWEN, Justice, joined by PHILLIPS, Chief Justice, and HECHT, Justice, dissenting.
We granted the application for writ of error in this case to decide whether the statute of limitations contained in section 10.01 of the Medical Liability and Insurance Improvement Act (Medical Liability Act)[1] can be constitutionally applied to the malpractice claim of a minor under the open courts provision of the Texas Constitution. The court of appeals, relying on our decision in Sax v. Votteler, 648 S.W.2d 661 (Tex.1983), held that section 10.01 of the Medical Liability Act is unconstitutional as applied to minors, who are under legal disability from bringing suit on their own behalf. 871 S.W.2d 542, 543. We affirm the judgment of the court of appeals, and remand this cause to the trial court for further proceedings consistent with this opinion.
In May 1988, Dr. Bruce Weiner performed surgery on Emmanuel Wasson, who was then fifteen years old. The surgery required insertion of surgical pins into Wasson's right femur. On his last visit in June 1988, Wasson complained to Weiner of constant pain in his hip and of his need for crutches. In August 1988, Wasson saw another physician, who took x-rays of his hip. The x-rays showed that one of the surgical pins was protruding into Wasson's right hip joint. Wasson later underwent two additional surgeries, but they did not relieve his constant pain. Wasson turned eighteen on December 16, 1990, and a few months later underwent surgery for the total replacement of his right hip.
On August 25, 1992, Wasson filed suit against Weiner, alleging that Weiner's negligence caused the painful destruction of his right hip joint and necessitated the hip replacement surgery. Weiner moved for summary judgment on two grounds. Weiner first urged that section 10.01 of the Medical Liability Act, which establishes a two-year statute of limitations for health care liability claims, barred Wasson's claim. Weiner also argued that even if the limitations period was tolled during Wasson's minority, Wasson's claim was nevertheless barred because Wasson failed to file suit within a "reasonable time" after attaining majority. The trial court granted Weiner's motion for summary judgment without specifying the grounds. The court of appeals reversed the trial court's judgment and remanded the case for further proceedings, holding that our opinion in Sax compels the conclusion that section 10.01 of the Medical Liability Act is unconstitutional as applied to minors.[2]
I
We begin our inquiry by reviewing the history of the medical malpractice statute of limitations in Texas. In 1975, as part of the Professional Liability Insurance for Physicians, Podiatrists, and Hospitals Act, the Legislature enacted article 5.82, section 4, of the Texas Insurance Code, which purported to restrict the period available for minors to bring medical malpractice actions. See Sax, 648 S.W.2d at 663. Section 4 of article 5.82 provided:
Notwithstanding any other law, no claim against a [health care provider] ... may be commenced unless the action is filed within two years of the breach or the tort complained of or from the date the medical treatment that is the subject of the claim or the hospitalization for which the claim is made is completed, except that minors under the age of six years shall have until their eighth birthday in which to file, or *318 have filed on their behalf, such claim. Except as herein provided, this section applies to all persons regardless of minority or other legal disability.
Tex.Ins.Code art. 5.82, § 4 (emphasis added) (hereinafter, article 5.82). When article 5.82 was repealed on August 29, 1977, the Legislature replaced it with section 10.01 of the Medical Liability Act, which provides:
Notwithstanding any other law, no health care liability claim may be commenced unless the action is filed within two years from the occurrence of the breach or tort or from the date the medical or health care treatment that is the subject of the claim or the hospitalization for which the claim is made is completed; provided that, minors under the age of 12 years shall have until their 14th birthday in which to file, or have filed on their behalf, the claim. Except as herein provided, this subchapter applies to all persons regardless of minority or other legal disability.
Tex.Rev.Civ.Stat.Ann. art. 4590i, § 10.01 (emphasis added) (hereinafter, section 10.01). As we have observed before, other than specifying different ages by which minors must bring claims, section 10.01 and article 5.82 are substantially the same. See Sax, 648 S.W.2d at 663 n. 1; Nelson v. Krusen, 678 S.W.2d 918, 920 n. 1 (Tex.1984).
In 1983, this Court unanimously held that article 5.82 was unconstitutional as applied to minors under the open courts provision of article I, section 13 of the Texas Constitution.[3]Sax, 648 S.W.2d at 665-667. We held that the open courts provision guarantees that "the right to bring a well-established common law cause of action cannot be effectively abrogated by the legislature absent a showing that the legislative basis for the statute outweighs the denial of the constitutionally-guaranteed right of redress." Sax, 648 S.W.2d at 665-666.
Thus, we first considered whether article 5.82 "effectively abrogated" a child's right to bring a medical malpractice cause of action. Under article 5.82, the limitations period was tolled until a child reached age six, and upon reaching age six, a child, like an adult, was required to bring suit within two years. We observed, however, that a child lacks legal capacity to bring suit during minority unless the minor's legal disability has been removed. Although parents, guardians, or next friends may as adults be legally capable of bringing suit on a child's behalf during minority, we held that the possibility that an adult might act on the child's behalf did not vindicate the total abrogation of the child's cause of action. Sax, 648 S.W.2d at 667.
We then considered whether the legislative purpose of article 5.82 outweighed the deprivation of a child's rights under the open courts provision. Although the Legislature enacted article 5.82 for the legitimate purpose of restraining the escalating cost of liability insurance for health care providers, we concluded that the means used to achieve this purpose were not "reasonable when they [were] weighed against the effective abrogation of a child's right to redress." Sax, 648 S.W.2d at 667. We accordingly held that, as applied to minors, article 5.82 violated article I, section 13 of the Texas Constitution.
II
Applying the principles articulated in Sax to this case, the court of appeals held that section 10.01, like its predecessor article 5.82, is unconstitutional as applied to minors because it purports to cut off Wasson's cause of action before he reaches majority, an age at which he may lawfully sue on his own behalf. 871 S.W.2d at 543. We agree. As previously noted, the only significant difference between article 5.82 and section 10.01 is that section 10.01 extends the tolling period from age six to age twelve. This one change in section 10.01 does not cure the constitutional infirmity that we identified in article 5.82 in Sax. Whether a statute compels a child to bring suit by age eight or by age fourteen is inconsequential because in either instance a minor child is legally disabled from pursuing a suit on his own. We do not doubt the Legislature's power to remove a *319 minor's legal disabilities and thus lower below eighteen the age at which a person may sue on his or her own behalf, but the Court unanimously agrees that the Legislature did not do so in section 10.01. 900 S.W.2d 326. Consistent with Sax, therefore, we hold that section 10.01 is unconstitutional when applied to a minor because it violates article I, section 13 of the Texas Constitution.
Weiner contends that Sax does not control this case, pointing to the following excerpt from the Court's opinion in an attempt to distinguish it:
If the parents, guardians, or next friends of the child negligently fail to take action in the child's behalf within the time provided by article 5.82, the child is precluded from asserting his cause of action under that statute. Furthermore, the child is precluded from suing his parents on account of their negligence, due to the doctrine of parent-child immunity. Felderhoff v. Felderhoff, 473 S.W.2d 928 (Tex.1971).
S | {
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NO. 07-10-0146-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
APRIL 27, 2011
_____________________________
BOBBY G. BARHAM,
Appellant
v.
PATRICIA MCGRAW,
Appellee
_____________________________
FROM THE 13TH DISTRICT COURT OF NAVARRO COUNTY;
NO. 08-17,231-CV; HONORABLE JAMES E. LAGOMARSINO, PRESIDING
_____________________________
Opinion
_____________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Blood may be thicker than water, but money beats everything.
He that is greedy of gain troubleth his own house.
Before us lies a dispute between brother and sister regarding the division of their deceased father's real estate. When their father died, the realty in question became the corpus of a trust to benefit his widow, Margie, the trust's trustee. Upon her death, the property remaining in it was to be distributed to the trustor's "descendants." Bobby Barham and Patricia Ann McGraw, his children, were two such descendants.
Being trustee, Margie had the express authority to exchange, sell, lease, and partition on such terms and at such times as she "deem[ed] proper" the trust's corpus, and she exercised that authority by conveying various tracts of land to both children. Thereafter, Bobby concluded that the conveyances were unfair and resulted in Patricia receiving more than that to which she was entitled. This conclusion was founded upon a writing signed in February of 2005, by Margie, Bobby and Patricia. Therein, the parties allegedly "partitioned" the lands the two descendants were to receive from the trust, according to Bobby. And, the actual conveyances from Margie failed to abide by that supposed agreement. Because Bobby had "been praying for guidance" and felt "very comfortable with proposals that [were] made" and was "so sure that the way [his sister] convinced Mother to make the conveyances was so unfair to [him] and [his] family that [he could not] let the matter go unchallenged," he sued his sister and sought the specific performance of the so-called partition agreement.
Patricia moved for and received summary judgment denying Bobby specific performance and sanctioning him for initiating frivolous litigation. Bobby then appealed the decision and contends that the trial court erred in granting his sister judgment and sanctions. We affirm in part and reverse in part.
Summary Judgment
Various grounds were alleged by Patricia in her motion for summary judgment. And, in granting it, the trial court did not specify upon which one it relied. Thus, the judgment may be affirmed on any ground that is meritorious. Harwell v. State Farm Mut. Auto Ins. Co., 896 S.W.2d 170, 173 (Tex. 1995). And, the ground we focus on involves the statute of frauds and the lack of any adequate description of the property within the February 2005 writing.
To be entitled to specific performance, an agreement must be valid and enforceable. Abraham Inv. Co. v. Payne Ranch, Inc., 968 S.W.2d 518, 527 (Tex. App. - Amarillo 1998, pet. denied). But, a deed or conveyance that does not sufficiently describe the land to be conveyed is not of such ilk. Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150, 152 (1945) (stating that it is well settled that before a court will decree the specific performance of a contract for the sale of land, the written agreement or memorandum required by the statute of frauds must contain the essential terms of a contract, expressed with such certainty and clarity that it may be understood without recourse to parol evidence to show the intention of the parties and in so far as the description of the property is concerned, the writing must furnish within itself, or by reference to some other existing writing, the means or data by which the particular land to be conveyed may be identified with reasonable certainty); Nguyen v. Yovan, 317 S.W.3d 261, 267 (Tex. App. - Houston [1st Dist.] 2009, pet. filed) (also discussing the requirement to identify the land with reasonable certainty and holding that if it is not, then the conveyance is void). This rule has been applied when a party sought specific performance of a settlement agreement requiring the transfer of land, see e.g. Martin v. Thalman, 568 S.W.2d 460, 462 (Tex. Civ. App. - Beaumont 1978, no writ), and that appears to be the reason why Bobby, Patricia and their mother executed the letter agreement at issue. Margie allegedly sought "peace of mind" regarding which child was to get what from the trust.
Per the letter agreement which Bobby drafted, Patricia was afforded two options. Each referred to various parcels of land he deigned to combine under different methodologies. The first was:
Option 1 - Based on value
You receive:
* Massengale Place - less Tracy's house and land
* Sheppard Place
* Home Place
* Page Place
* That portion of the green place highlighted in the enclosed map
The next was:
Option 2 - Based on equal acres
You receive:
* Massengale Place - less Tracy's house and land
* Sheppard Place
* Rutledge Place
* Lumley Place
* Enough of the meadow to be exactly equal acres
Attached to the letter was what purported to be an aerial view of the property. Yet, neither it nor the letter contained any legal description of the realty involved. Instead, Bobby simply mentioned the parcels by the aforementioned names.
As previously discussed, when the essential elements of a property's description are left to inference or to development by parol, the description is insufficient to support a suit for specific performance irrespective of whether the parties themselves understood what land formed the subject matter of the conveyance. Mayor v. Garcia, 104 S.W.3d 274, 280-81 (Tex. App. - Texarkana 2003, writ dism'd w.o.j.). So too did the Mayor court note that the elements of an adequate description include reference to the location and quantity of the property involved. Id. at 280. The February letter at bar mentions nothing about the quantum or acreage of land involved in the conveyance. Nor does it refer to the metes, bounds, block, survey, city, county, or state in which the land is located or even a separate writing containing that information. Instead, the description consists of nothing more than names someone apparently attached to the different parcels at one time or another. Given these undisputed circumstances, we cannot say that the letter agreement satisfied the statute of frauds, and the trial court could have so held as a matter of law when granting Patricia summary judgment.
Bobby, however, argues that there need not be an adequate description in the letter since the document merely evinced a partition of lands. Authority does exist indicating that a partition is not subject to the statute of frauds. Houston Oil Co. v. Kirkindall, 136 Tex. 103, 145 S.W.2d 1074, 1077 (1941). Nonetheless, Bobby's argument rests upon a false premise. The document at issue cannot be construed as a partition. The latter serves to divide property owned by co-tenants and concerns possession, not title. Id.; see also Dierschke v. Central Nat'l Branch of First Nat'l Bank of Lubbock, 876 S.W.2d 377, 380 (Tex. App. - Austin 1994, no pet.) (stating that an owner of a non-possessory interest cannot compel partition). The record is clear that neither Patricia nor Bobby had a right to possession of any realty held in the trust. Right to possession resided in their mother, the trustee. See Manchaca v. Martinez, 136 Tex. 138, 148 S.W.2d 391 (Tex. 1941). We have been cited to nothing of record indicating that either Patricia or Bobby held legal title to the realty when they signed the February 2005 letter. Nor did or does anyone dispute that legal title to the property lay with the trustee of their father's testamentary trust at the time. Indeed, if this was not so and if the two children owned the land, there would have been no need for their mother to seek "peace of mind" by transferring it to them. Consequently, the document Bobby drafted and tendered to his remaining family members was not a partition irrespective of his unilateral belief.
In sum, the February 2005 letter agreement violates the statute of frauds and, therefore is void. We overrule issue one.
Sanctions
Bobby also challenges the sanctions levied by the trial court under section 9.012 of | {
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4 U.S. 208 (____)
4 Dall. 208
Water's Executors
versus
M`Clellan et al.[(2)].
Supreme Court of United States.
SHIPPEN, Chief Justice.
1st. It is incumbent on the plaintiff, to prove his property in the goods, which were taken by the sheriff; and to do this, he has produced evidence of a former distress and sale, of the same goods, for rent due from Dewees to him. But the defendants answer, that the distress was fraudulent; because (among other reasons) the goods were left in the possession of the debtor. In the case of a voluntary sale of goods, the law, both in Pennsylvania and England, regards the continuance of the debtor's possession, as a badge of fraud. In England, the law is the same, where the sale is made by the sheriff; but in Pennsylvania a different rule, in that case, has prevailed; and where a relation, or friend, after a fair purchase, at public sale, leaves the goods in the occupancy and use of the debtor, it never has been deemed a fraud upon creditors. As, therefore, the purchase, on the present occasion, was not by a private bill of sale; but at an open, public, vendue; the continued possession *209 by Dewees does not, in the opinion of the Court, justify the defendant's taking and sale.[(3)]
2d. It has been objected, for the defendants, that the plaintiff was bound to show, that the distress was made on the premises; whereas, at least, a part of the goods appears to have been distrained elsewhere. However available this objection might have been upon a replevin, between the original parties, we do not think, that third persons can take advantage of it.
3d. It is urged, that there were a number of young cattle taken on the distress; and that as these have been fed, and reared, by the care and cost of Dewees, he had acquired a property in their increased value. Of the truth and operation of this allegation, the jury will consider: and, if they are of opinion, that the expense of maintaining, has exceeded a fair compensation for the use of the cattle, they will make a reasonable deduction from the plaintiff's demand.
Verdict for the plaintiff.
NOTES
[(2)] Tried in the Circuit Court, West-Chester, 29th of May 1800, before SUIPPEN, Chief Justice, and YEATES, Justice.
[(3)] The defendant's counsel cited the following cases on this point: 3 Co. 81. 2 T. Rep. 594, 5, 6. 1 Wils. 44. But see Levy v. Wallis, ante, p. 167, 8. Chancellor v. Phillips, post. The United States v. Cunningham, post.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4287
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WINZEL DALLAS JACOBS,
Defendant - Appellant.
No. 17-4289
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WINZEL DALLAS JACOBS, a/k/a Star, a/k/a OG,
Defendant - Appellant.
Appeals from the United States District Court for the Middle District of North Carolina,
at Greensboro. William L. Osteen, Jr., District Judge. (1:09-cr-00114-WO-2; 1:08-cr-
00319-WO-1).
Submitted: January 22, 2018 Decided: February 9, 2018
Before GREGORY, Chief Judge, and MOTZ and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James E. Quander, Jr., QUANDER & RUBAIN, P.A., Winston-Salem, North Carolina,
for Appellant. Robert Albert Jamison Lang, Assistant United States Attorney, Winston-
Salem, North Carolina, Angela Hewlett Miller, Assistant United States Attorney OFFICE
OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Winzel Dallas Jacobs appeals the district court’s judgment revoking supervised
release and imposing a 24-month prison term with no additional supervised release in No.
1:08-cr-00319-WO-1, and revoking supervised release and imposing a concurrent 24-
month prison term to be followed by five years’ supervised release in No. 1:09-cr-00114-
WO-2. Appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), concluding that there are no meritorious grounds for appeal but questioning
whether Jacobs’ within-Policy Statement range revocation sentence was plainly
unreasonable. Although he was advised of his right to file a pro se supplemental brief,
Jacobs did not file one. We affirm.
“A district court has broad discretion when imposing a sentence upon revocation
of supervised release.” United States v. Webb, 738 F.3d 638, 640 (4th Cir. 2013). We
will affirm a revocation sentence that “is within the prescribed statutory range and is not
plainly unreasonable.” United States v. Crudup, 461 F.3d 433, 440 (4th Cir. 2006).
“When reviewing whether a revocation sentence is plainly unreasonable, we must first
determine whether it is unreasonable at all.” United States v. Thompson, 595 F.3d 544,
546 (4th Cir. 2010). “This initial inquiry takes a more deferential appellate posture
concerning issues of fact and the exercise of discretion than reasonableness review for
guidelines sentences.” United States v. Moulden, 478 F.3d 652, 656 (4th Cir. 2007)
(internal quotation marks omitted).
A sentence can be either procedurally or substantively unreasonable. Webb, 738
F.3d at 640. A sentence will be deemed procedurally unreasonable if the judge failed to
3
consider the Chapter Seven Policy Statements or pertinent 18 U.S.C. § 3553(a) (2012)
sentencing factors or if the judge failed to “‘provide a statement of reasons for the
sentence imposed.’” Thompson, 595 F.3d at 547 (quoting Moulden, 478 F.3d at 657);
Crudup, 461 F.3d at 440. A revocation sentence is substantively unreasonable if the
district court did not rely on a proper basis in rendering its sentence. Crudup, 461 F.3d at
440. Only if a sentence is procedurally or substantively unreasonable will we proceed to
the second step: determining whether the sentence is “plainly unreasonable.” Id. at 439.
A sentence is plainly unreasonable if it runs “afoul of clearly settled law.” Thompson,
595 F.3d at 548.
In fashioning an appropriate sentence, the primary focus is “sanction[ing] the
violator for failing to abide by the conditions of the court-ordered supervision.” U.S.
Sentencing Guidelines Manual ch. 7, pt. A, introductory cmt. 3(b), p.s. (2009). Thus,
“the court should sanction primarily the defendant’s breach of trust, while taking into
account, to a limited degree, the seriousness of the underlying violation and the criminal
history of the violator.” USSG ch. 7, pt. A(3)(b); see 18 U.S.C. § 3553(a)(1). The court
also must consider some of the factors enumerated under § 3553(a), though not the need
for the sentence “to reflect the seriousness of the offense, to promote respect for the law,
and to provide just punishment for the offense.” 18 U.S.C. § 3553(a)(2)(A). See 18
U.S.C. § 3583(e); Crudup, 461 F.3d at 439.
Here, the district court made no errors in determining Jacobs’ statutory maximum
revocation sentence, finding that the most serious infraction was a Grade B violation, and
establishing the 18- to 24-month Policy Statement range. In determining that a Policy
4
Statement range sentence was appropriate, the district court took into account Jacobs’
conduct during supervision and his continued drug use. Although the court did not
expressly cite Jacobs’ breach of trust, the court recited Jacobs’ allocution from his
original sentencing where he attributed his crimes to his drug abuse, professed his desire
to improve himself and stay sober, and avowed to never repeat his offenses. The court
observed that, despite these promises, Jacobs returned to substance abuse during his
period of supervision and fled after his termination from a substance abuse treatment
program instead of reporting to the probation office as directed. Finally, the court noted
that failure to impose a prison sentence for Jacobs’ violations would not create the
deterrent necessary to prevent recidivism. We conclude that Jacobs’ within-Policy
Statement range sentence was not unreasonable, much less plainly so.
In accordance with Anders, we have reviewed the entire record in this case and
have found no meritorious grounds for appeal. We therefore affirm the district court’s
judgment.
This court requires that counsel inform Jacobs, in writing, of the right to petition
the Supreme Court of the United States for further review. If Jacobs requests that a
petition be filed, but counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Jacobs. We dispense with oral
argument because the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the decisional process.
AFFIRMED
5
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-03-00489-CR
Eric Klingemann, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
NO. 9034119, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING
MEMORANDUM OPINION
Eric Klingemann seeks to appeal from a judgment of conviction for aggravated
robbery. The trial court has certified that (1) this is a plea bargain case and Klingemann has no right
of appeal, and (2) that Klingemann waived his right of appeal. The appeal is dismissed. See Tex.
R. App. P. rule 25.2(d).
__________________________________________
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices B. A. Smith and Patterson
Dismissed for Want of Jurisdiction
Filed: September 25, 2003
Do Not Publish
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285 S.E.2d 328 (1982)
STATE of North Carolina
v.
Pat Burnette SHOOK (2 Cases).
Nos. 8128SC525 and 8128SC618.
Court of Appeals of North Carolina.
January 5, 1982.
Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Roy A. Giles, Jr., Raleigh, for the State.
Swain & Stevenson by Joel B. Stevenson and Kenneth T. Davies, Asheville, for defendant-appellant.
BECTON, Judge.
I
A. State's Evidence
During July and August 1980 the Asheville Police Vice Squad conducted an investigation *329 of Classic Escort Service, a business owned and operated by defendant. During this period, Vice Squad detectives observed females employed by defendant leaving the business with males and accompanying them to motel rooms. Later four of these employees pleaded guilty to prostitution.
Detective Vance Smith testified that he initially went to defendant's place of business on 22 July 1980 to investigate a complaint of vandalism. At that time defendant asked him if he had any information regarding an investigation of her business. She informed Smith that such information "would be worth a dinner or something of that nature." Smith discussed this conversation with his supervisor and began taperecording his subsequent conversations with defendant. On 8 August 1980 defendant told Smith she would pay him $200 a month for the information. Four days later defendant met with Smith in his van and paid him the $200 in cash. She was arrested upon leaving the van.
B. Defendant's Evidence
Defendant testified that she has known Smith since 1973 and had sexual relations with him at least six times in 1979 and 1980. She testified that she met with Smith in July 1980 to discuss his coming to work for her as a security guard for $200 a month and that Smith was the one who suggested the idea of his receiving money in exchange for information. Defendant denied having any knowledge that her employees were prostitutes.
II
In her prostitution and bribery cases, defendant brings forward five assignments of error. We have examined each one and deem Assignment of Error No. 2 to be dispositive on appeal. Therein defendant assigned error to the admission into evidence of various tape recordings of alleged conversations between her and Smith during August 1980. She alleged that the tapes were played to the jury over her objections and before any proper foundation was laid. Prior to their admission into evidence, Smith testified about his conversations with defendant from 4 August until 12 August 1980. He then informed the jury that six of these conversations had been recorded. The State proceeded to play tapes of conversations between defendant and Smith which allegedly occurred on 6, 8, 11 and 12 August. The record on appeal indicates that portions of each tape were inaudible, and that the court reporter made no attempt to transcribe any of the tapes.
We agree with defendant that this evidence constituted prejudicial and reversible error. In State v. Lynch, 279 N.C. 1, 181 S.E.2d 561 (1971), our Supreme Court emphasized that tape-recorded evidence must be properly authenticated before it is admissible. The trial court must, therefore, conduct a voir dire hearing to determine the tapes' admissibility upon objection to their introduction. During such a voir dire hearing, the State must satisfy the trial court of the following:
(1) that the recorded testimony was legally obtained and otherwise competent;
(2) that the mechanical device was capable of recording testimony and that it was operating properly at the time the statement was recorded;
(3) that the operator was competent and operated the machine properly;
(4) the identity of the recorded voices;
(5) the accuracy and authenticity of the recording;
(6) that defendant's entire statement was recorded and no changes, additions, or deletions have since been made; and
(7) the custody and manner in which the recording has been preserved since it was made. [Citations omitted.]
279 N.C. at 17, 181 S.E.2d at 571. The Lynch Court further emphasized that such a voir dire enables the trial judge to determine whether the tapes are audible, intelligible, or fragmentary and whether they contain improper or prejudicial matter. In addition, the voir dire provides counsel the opportunity to object to portions of the tapes which he deems to be incompetent. Incompetent matters can, therefore, be kept from the jury.
*330 In the case sub judice defendant timely objected to the playing of each taped conversation. The trial court overruled each objection and allowed the tapes to be played before the jury. No voir dire hearing was ever conducted. Detective Smith identified the voices on the tapes as his and defendant's. He testified that he operated the tape recorder; that the tapes had not been altered; and that the tapes had been stored in the safe since the meetings with defendant. His testimony, however, also reveals that large portions of the tapes were either inaudible or unintelligible. Indeed, as to one tape recording, the trial court was compelled to say:
COURT: Can we agree that this recording is probably audible if someone uses a different type of listening device? To listen to it the way we are, apparently is a waste of our time.
These observations raise the question of whether the recording device was operated properly. More important, it raises doubts as to the accuracy of the recordings. Significantly, the trial court's remarks, that one of the inaudible recordings was probably audible if someone used a different type of listening device and that a transcript had been made of the tape, may have given the impression that the court believed the tape to be accurate. In addition, Smith was allowed to testify from alleged transcripts of the tapes, even though there appeared to be discrepancies in a transcript typed by the police department and one prepared for the defense.
Since the publicity surrounding the Watergate hearings and particularly the infamous "gap" in the Nixon tapes, we believe that the American public (indeed, a jury) may be inclined to view gaps or inaudible portions in a taped conversation between an accused person and others as containing evidence which would incriminate the accused. The trial court's conduct in the case sub judice lends credence to this belief. Defendant was clearly prejudiced by the failure of the trial court to follow the requirements as mandated by Lynch and is entitled to a new trial.
Other assignments brought forward by defendant involve matters that should not recur at a subsequent trial.
III
After giving notice of appeal following her conviction on prostitution and bribery charges, defendant was released upon posting a $30,000 bond which contained, among other things, the following special condition: "To cease and desist in any private enterprise, and to clear any business activities through the District Attorney's office, to be reviewed by the Presiding Judge." On 17 March 1981, the District Attorney, alleging that defendant was still the owner and operator of Classic Escort Service, a business engaged in prostitution, moved that defendant's bond be revoked and that she commence serving her prison sentence. A show cause order was issued on 17 March 1981, and the matter came on for hearing on 23 March 1981. The trial court made findings, concluded that defendant had violated the special condition of her bond, ordered her appeal bond revoked and placed her in custody. Defendant appealed and moved the trial court to stay execution of its order. The trial court denied her motion, and defendant then filed a petition for temporary stay and a petition for writ of supersedeas with this Court. We first granted the petition for a temporary stay and then granted the petition for a writ of supersedeas. Defendant's appeal then followed its normal course.
It is not necessary to address defendant's assignment of error concerning the order revoking her bond, since we granted her petition for a temporary stay and her petition for a writ of supersedeas. The issues she brings forward are moot. She has not suffered a loss in No. 8128SC618, the bond revocation proceeding, and she has been granted a new trial in No. 8128SC525, the prostitution and bribery cases.
For the foregoing reasons, defendant is entitled to a
New trial.
MORRIS, C. J., and ARNOLD, J., concur.
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823 F.2d 478
SOUTHERN RAILWAY COMPANY, Plaintiff-Appellee,v.GEORGIA KRAFT COMPANY, Defendant-Appellant.
No. 86-8379.
United States Court of Appeals,Eleventh Circuit.
Aug. 4, 1987.
Robert A.B. Reichert, Macon, Ga., for defendant-appellant.
F. Kennedy Hall, J. Steven Stewart, Macon, Ga., for plaintiff-appellee.
Appeal from the United States District Court for the Middle District of Georgia.
Before RONEY, Chief Judge, KRAVITCH and EDMONDSON, Circuit Judges.
EDMONDSON, Circuit Judge:
1
Georgia Kraft Company ("Georgia Kraft") appeals from a jury verdict rendered against it in the United States District Court for the Middle District of Georgia. Because we find that the district court erroneously restricted the issues presented to the jury, we vacate the district court's judgment and remand for a new trial.
2
In 1951, Georgia Kraft and Southern Railway Company ("Southern Railway") made a sidetrack agreement, placing on each of the parties obligations to be performed in Bibb County, Georgia. As part of the agreement, Georgia Kraft agreed to maintain the sidetrack and to indemnify Southern Railway against "any and all damage resulting from negligence of" Georgia Kraft.1
3
On September 12, 1980, Rufus Johnson, an employee of Southern Railway, was on the premises of Georgia Kraft to switch various rail cars on the tracks covered by the sidetrack agreement. Georgia Kraft had been having problems with water overflows from nearby tanks that caused an area of mud and slush around its sidetracks. In the line of his work, Johnson crossed that muddy area. A while later, he crossed the track by mounting the ladder on one side of a car, crossing the catwalk between cars, and coming down the ladder on the other side. As he was dismounting the ladder, he fell and injured his right knee.
4
Johnson sued Georgia Kraft in state court, contending that the mud he picked up while crossing the sidetrack caused him to fall. The court in that action granted summary judgment in favor of Georgia Kraft.2
5
Johnson filed a different suit against Southern Railway under the Federal Employers' Liability Act (FELA), 45 U.S.C.A. sec. 51, et seq. (1972). Southern Railway advised Georgia Kraft that it intended to settle with Johnson and offered Georgia Kraft the opportunity either to settle or to take over the defense of the case against Southern Railway. Georgia Kraft declined to do either. Southern Railway subsequently decided to settle with Johnson and to do so paid the amount of $275,000.00.
6
After settling with Johnson, Southern Railway sued Georgia Kraft for indemnity under the terms of the sidetrack agreement, invoking the diversity jurisdiction of the federal district court. At the first pre-trial conference, the parties agreed that the issues to be submitted to the jury included whether or not Georgia Kraft was negligent and whether the negligence of Georgia Kraft, if any, was the proximate cause of the injury to Johnson.
7
At a second pre-trial conference held the afternoon before the trial, the district court judge decided not to present those issues to the jury, but to limit the issues to whether the settlement paid by Southern Railway to Johnson was reasonable. The jury decided that it was, and the court entered judgment in favor of Southern Railway in the amount of the settlement plus legal fees, expenses, and interest from the date of payment of the settlement. Georgia Kraft appealed to this court.
8
Georgia Kraft's primary contention is that the district court erred by restricting the issues in the trial. Georgia Kraft argues that the jury should have also been allowed to determine whether Georgia Kraft was negligent in its maintenance of the sidetrack and, if so, whether that negligence was the cause of Johnson's injury. In our view, the district court limited the issues for trial too much.
9
For many years, the majority rule was that an indemnitee, such as Southern Railway, must show actual liability to an injured person before it could recover against an indemnitor, in this case Georgia Kraft. See, e.g., Southern Ry. Co. v. A.O. Smith Corp., 134 Ga.App. 219, 213 S.E.2d 903 (1975) (judgment required for indemnity prior to 1972). The rule gradually changed, however, so that an indemnitee, after giving the indemnitor notice and an opportunity to defend, could settle a lawsuit and claim indemnity upon a showing that the decision to settle was reasonable. See Missouri Pacific R.R. Co. v. Arkansas Oak Flooring Co., 434 F.2d 575, 580 (8th Cir.1970); Miller & Co. of Birmingham v. Louisville & Nashville R.R. Co., 328 F.2d 73, 78 (5th Cir.), cert. denied, 377 U.S. 966, 84 S.Ct. 1648, 12 L.Ed.2d 737 (1964)3; Chicago, R.I. & P.R. Co. v. Dobry Flour Mills, Inc., 211 F.2d 785, 788 (10th Cir.), cert. denied, 348 U.S. 832, 75 S.Ct. 55, 99 L.Ed. 656 (1954); Superior Rigging & Erecting Co. Inc. v. Ralston Purina Co., 172 Ga.App. 79, 322 S.E.2d 95 (1984); Ranger Construction Co. v. Robertshaw Controls Co., 158 Ga.App. 179, 279 S.E.2d 477 (1981); O.C.G.A. sec. 51-12-32(c) (1982).
10
In the instant case, Southern Railway notified Georgia Kraft of the lawsuit and gave that company an opportunity to defend, but Georgia Kraft refused. At trial, therefore, Southern Railway was not required to prove that it actually would have been liable to Johnson, only that it was potentially liable and settled the lawsuit in good faith.
11
The fact that an indemnitee was potentially liable to an injured party is a necessary condition for the indemnitor to be liable to the indemnitee. Still, if the indemnitee reasonably settled with the injured party, but the injury is not covered by the indemnity agreement, then the indemnitor is not liable to the indemnitee.4 Thus, the question of the coverage of the indemnity contract between Georgia Kraft and Southern Railway remains to be decided. Missouri Pacific R.R. Co. v. Int'l Paper Co., 618 F.2d 492, 496 (8th Cir.1980); cf. Southern Ry. Co. v. Acme Fast Freight, 193 Ga. 598, 19 S.E.2d 286 (1942) (under Georgia vouching statute, judgment conclusive as to liability of indemnitee, but not indemnitor). Georgia Kraft agreed to indemnify Southern Railway against "any and all damage resulting from negligence of" Georgia Kraft Co. or Georgia Kraft's agents.
12
One strong maxim of Georgia indemnity law is that indemnity contracts will be construed to hold an indemnitee (here Southern Railway) harmless against its own actions only when that intent is expressed in plain, clear, and unequivocal terms. Brown v. Seaboard Coast Line R. Co., 554 F.2d 1299 (5th Cir.), cert. denied, 434 U.S. 975, 98 S.Ct. 533, 54 L.Ed.2d 467 (1977); Foster v. Kenimer, 167 Ga.App. 567, 307 S.E.2d 30 (1983); Bohannon v. Southern Ry. Co., 97 Ga.App. 849, 104 S.E.2d 603 (1958). In the absence of explicit language, courts will not interpret an indemnity agreement as a promise to indemnify regardless of fault. Georgia State Telephone Co. v. Scarboro, 148 Ga.App. 390, 251 S.E.2d 309 (1978).
13
In the instant case, there is no indication that by promising to indemnify against damage caused by its own negligence, Georgia Kraft intended to indemnify Southern Railway regardless of who was at fault. The language in this contract is a far cry from that in cases where Georgia courts have found an intention to indemnify for the other party's fault. See, e.g., Southern Ry. Co. v. Ins. Co. of North America, 228 Ga. 23, 183 S.E.2d 912 (1971) ("whether the [loss, injury or damage] may result from the negligence of Railroad or otherwise"); Arthur Pew Construction Co., Inc. v. Bryan Construction Co., Inc., 156 Ga.App. 780, 275 S.E.2d 384 (1980) ("any and all claims ... which arise out of the act or omission" of indemnitor); Georgia Ports Authority v. Central of Georgia Ry. Co., 135 Ga.App. 859, 219 S.E.2d 467 (1975) ("negligence or other causes"); Seaboard Coast Line R.R. Co. v | {
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709 F.2d 1500
Careyv.Cunningham Drug Stores, Inc.
81-3057
UNITED STATES COURT OF APPEALS Sixth Circuit
3/31/83
N.D.Ohio
AFFIRMED
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835 F.2d 258
Charles E. LARSEN, Petitioner-Appellant,v.James K. FRAZIER; Attorney General, State of Oklahoma,Respondents-Appellees.
No. 87-1280.
United States Court of Appeals,Tenth Circuit.
Dec. 11, 1987.
Charles E. Larsen, pro se.
Robert A. Nance and Douglas B. Allen, Asst. Attys. Gen. (Robert H. Henry, Atty. Gen., of Okl., with them on the brief) Oklahoma City, Okl.; for Respondents-Appellees.
Before McKAY and BALDOCK, Circuit Judges, and GREENE, District Judge.*
PER CURIAM.
1
After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.8(c) and 27.1.2. The cause is therefore ordered submitted without oral argument.
2
Petitioner appeals from an order of the district court denying his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. Sec. 2254. We affirm.
3
In November, 1980, petitioner pled guilty to and was convicted of burglary pursuant to a plea bargain. In January, 1984, he was sentenced to ten years imprisonment after pleading guilty to unlawful use of a mislaid credit card after former conviction of a felony. The January, 1984, sentence was enhanced by the November, 1980, conviction. Petitioner did not file a direct criminal appeal from the conviction relating to the January, 1984, sentencing.
4
Petitioner, however, did file an application for state post-conviction relief in the District Court of Oklahoma County attacking the November, 1980, conviction. Petitioner alleged, among other things, that his plea bargain was null and void as a violation of Okla. Const. art. XXIII, Sec. 8. Okla. Const. art. XXIII, Sec. 8 provides: "Any provision of a contract, express or implied, made by any person, by which any of the benefits of this Constitution is sought to be waived, shall be null and void." Without specific discussion of the allegation, the District Court of Oklahoma County denied relief and concluded petitioner voluntarily and knowingly waived his rights and pled guilty. The Oklahoma Court of Criminal Appeals affirmed and stated that it had examined the application filed in the Oklahoma district court and found that even if petitioner's statements were true, he had failed to demonstrate that he was entitled to any relief.
5
Petitioner then filed a petition for habeas corpus relief in the district court alleging, among other things, that his plea bargain was void. The district court refused to review the allegation, finding that it contained no assertion of a violation of the constitution or laws of the United States.
6
This court reversed and remanded in Larsen v. Frazier, Unpublished No. 86-1593 (10th Cir. filed January 6, 1987). This court determined that petitioner had alleged a violation of due process and equal protection guaranteed by the Fourteenth Amendment. More specifically, this court determined that an allegation that a state's refusal to apply the protections of its own constitution is a denial of fundamental fairness guaranteed by the Due Process Clause.
7
Upon reconsideration of the merits of the claim, the district court found that the Oklahoma courts have never construed the Oklahoma Constitution to prohibit guilty pleas, plea bargains, or the waiver of constitutional rights associated with the plea process. The district court concluded petitioner can make no argument on the law or the facts in support of his claim for relief. Petitioner appealed.
8
The validity of guilty pleas and plea bargains is a matter of state law. We will generally follow the interpretation of the laws of a state by its highest deciding court except where the interpretation is inconsistent with fundamental principles of liberty and justice. See Ewing v. Winans, 749 F.2d 607, 609 (10th Cir.1984); Tyrrell v. Crouse, 422 F.2d 852, 853 (10th Cir.1970); see also Brown v. Ohio, 432 U.S. 161, 167, 97 S.Ct. 2221, 2226, 53 L.Ed.2d 187 (1977); Hortonville Joint School Dist. No. 1 v. Hortonville Educ. Ass'n, 426 U.S. 482, 488, 96 S.Ct. 2308, 1312, 49 L.Ed.2d 1 (1976).
9
In this case, the Oklahoma Court of Criminal Appeals had the opportunity to review the constitutionality of the plea bargain on the merits. In summarily denying relief, the Court of Criminal Appeals determined that plea bargains are valid and are not in violation of Okla. Const. art. XXIII, Sec. 8. Because no fundamental principles of liberty or justice are involved, we conclude that plea bargains are valid in Oklahoma and are not in violation of Okla. Const. art. XXIII, Sec. 8.
10
The judgment of the United States District Court for the Western District of Oklahoma is AFFIRMED.
11
The mandate shall issue forthwith.
*
Honorable J. Thomas Greene, District Judge, United States District Court for the District of Utah, sitting by designation
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352 F.Supp.2d 578 (2005)
UNITED STATES
v.
EXTREME ASSOCIATES, INC., Robert Zicari, and Janet Romano, Defendants.
Crim. No. 03-0203.
United States District Court, W.D. Pennsylvania.
January 20, 2005.
*579 Stephen R. Kaufman, United States Attorney's Office, Pittsburgh, PA, for Plaintiff.
Jennifer M. Kinsley, Sirkin, Pinales, Mezibov & Schwartz, H. Louis Sirkin, Cincinnati, OH, Warner Mariani, Pittsburgh, PA, for Defendants.
MEMORANDUM
LANCASTER, District Judge.
This is a criminal prosecution charging nine counts of violating the federal obscenity statutes and one count of conspiracy based on that conduct. 18 U.S.C. §§ 371, 1461, 1462 and 1465. The United States has charged defendants Extreme Associates, Inc., Robert Zicari, and Janet Romano *580 with distribution of obscene material via the mails and the Internet. Defendants are in the business of producing and selling sexually explicit films. Defendants have filed a motion to dismiss the indictment arguing that the federal obscenity laws infringe on the rights of liberty and privacy guaranteed by the due process clause of the United States Constitution. [Doc. Nos. 14 and 15].
Because we find that the obscenity statutes are unconstitutional as applied to these defendants, defendants' motion to dismiss is granted.
I. FACTUAL BACKGROUND
A. Joint Stipulation of Facts
The parties submitted the following "Joint Stipulation of Fact" prior to oral argument. Additional facts not in dispute will be discussed in this memorandum in context.
Facts Regarding the Internet Generally:
1. The Internet is a decentralized, global medium of communication that links people, institutions, corporations, and governments around the world. It is a giant computer network that interconnects innumerable smaller groups of linked computer networks and individual computers. Although precise estimates are difficult to formulate due to its constant and rapid growth, the Internet is currently believed to connect more than 159 countries and close to 322 million users worldwide.
2. Because the Internet merely links together numerous individual computers and computer networks, no single entity or group of entities controls all of the material made available on the Internet or otherwise limits the ability of others to access such materials. The range of digital information available to Internet users which includes text, images, sound and video is individually created, maintained, controlled, and located on millions of separate individual computers around the world. Each content provider of a web site is responsible for its content.
3. The Internet presents extremely low entry barriers to anyone who wishes to provide or distribute information or gain access to it. The Internet provides an affordable means for communicating with, accessing, and posting content to a worldwide audience.
4. In the United States, individuals have several easy means of gaining access to computer communications systems in general and to the Internet in particular. Many educational institutions, businesses, local communities, and libraries maintain an easily accessible computer network which is linked directly to the Internet. Many of these entities restrict access to sexually explicit material.
5. Internet service providers ("ISPs") allow subscribers to access the Internet through the subscriber's personal computer by using a telephone modem, broadband, including a cable modem or digital subscriber line (DSL), and dedicated access, such as a T1 line. Most ISPs charge a monthly fee in the range of $15.00 to $50.00, but some provide their users with free or very low-cost Internet access. Every ISP has a Terms of Service Agreement with those customers that desire to host content, in the form of a web site, on the ISP's network. The Terms of Service Agreement may prohibit the individual or entity (customer) hosting a web site from posting certain material such as child pornography or sexually explicit content, on the ISP's network.
Subscribers who do not host a web site, but utilize the ISP to access the Internet, also enter into a Terms of Service Agreement which may limit certain activities.
6. The World Wide Web is the most popular technology to access information on the Internet. Anyone with access to *581 the Internet and proper software can create webpages or home pages which may contain many different types of digital information text, images, sound, and video. The web comprises millions of separate websites that display content provided by particular persons or organizations. Any Internet user anywhere in the world with the proper software can view webpages posted by others, read text, view images and video, and listen to sounds posted at these web sites. Internet users wishing to make content available to others must create the content and publish it on the Internet through an ISP.
7. The web serves in part as a global, online repository of knowledge, containing information from a diverse array of sources, which is easily accessible to Internet users around the world. Though information on the web is contained on individual computers, each of these computers is connected to the Internet through a web protocol, the hyper text transport protocol, that allows the information on the web to be accessible to web users. The content of some web sites is available to all users while other content may not be accessible without a method of access, such as a login code, chosen by the web site host.
8. To gain access to the information available on the web, a person generally uses a web "browser" software such as Netscape Navigator or Internet Explorer to display, print, and download documents that are formatted in the standard web formatting language. Each page on a web site has an address that allows users to find and retrieve it.
9. Most web documents also contain "links." These are short sections of text or images that refer and link to another document. Typically the linked text is blue or underlined when displayed; and when selected by the user on the user's computer screen, the referenced document is automatically displayed, wherever in the world it actually is stored. Links, for example, are used to lead from overview documents to more detailed documents on the same website, from tables of contents to particular pages, and from text to cross-references, footnotes, and other forms of information.
10. Links may also take the user from the original website to another website on a different computer connected to the Internet, a computer that may be located in a different area of the country, or even the world.
Facts Regarding This Case During All Times Relevant to the Charges in this Case:
11. Extreme Associates, Inc. operated a website known as www.extremeassociates.com. The website was divided into two sections one section which could be accessed by the general public without cost and one section for members only. The "members only" section required a payment of $89.95 for a three month period, renewable automatically.
12. To become a member of the Extreme Associate's website, an individual must have completed an on-line registration form which includes the following: 1) name; 2) address; and 3) credit card information. Once the form was completed, the potential member clicked the "submit" button. If Extreme Associates accepted the applicant as a member, it then provided a user name and password to the new member and billed his credit card every three months.
13. Once an individual was a member of the Extreme Associates website, he or she was permitted to access "members only" content from any computer worldwide. To do so, the member was only required to enter a username and password. Extreme Associates did not require the member to disclose the geographic location of the computer he or she was using. *582 Extreme Associates did not request entry of a geographic location from persons logging into the "members only" portion of its site.
14. The "members only" portion contained multiple webpages, or screens, which were comprised of various headings, photographs, text, and computerized images. Also available on the "members only" portion of the website were short video clips which ranged from less than one minute in length to several minutes in length. The hyperlinks to these video clips appeared on a webpage with various other content, including text and graphic design.
15. The video clips could be accessed by clicking on them with a mouse and viewing them with a video processing program, such as Real Time or Windows Media. Any video clips could be downloaded by the member and saved onto the member's personal computer, so that the member could view the video clip at any time without accessing the Extreme Associates website or even connecting to the Internet.
16. Some of the video clips that appeared on the Extreme Associates website were excerpts from full length videos produced, distributed, and/or sold by Extreme Associates; others were not. However, the web page containing the video clips did not reference any full length video, nor whether such videos were available on VHS or DVD. Where the video clip was in fact an excerpt from a full-length video, the full-length video was available for purchase on another page of the Extreme Associates website.
17. The defendants selected the length and chose the content of each video clip available on the "members only" portion of the Extreme Associates web site.
18. As part of the investigation of this case, United States Postal Inspector Joseph McGowan registered as a member of the Extreme Associates website. More specifically, on September 5, 2002, Postal Inspector McGowan subscribed to the Extreme Associates membership website. He did it in the following manner:
He went to the extremeassociates.com website and clicked on to the member's registration. That brought him to the ccbill.com page. The page reflected ccbill.com letterhead and had "instant online access with your credit card." On this page, it | {
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-198V
Filed: October 11, 2017
UNPUBLISHED
ALICE ODOM,
Special Processing Unit (SPU);
Petitioner, Attorneys’ Fees and Costs
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Mary Coffey, Coffey & Nichols, LLC, St. Louis, MO, for petitioner.
Ryan Daniel Pyles, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS 1
Dorsey, Chief Special Master:
On February 10, 2017, petitioner filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq., 2 (the
“Vaccine Act”). Petitioner alleged that she suffered a shoulder injury related to vaccine
administration (“SIRVA”) following her October 3, 2015 influenza (“flu”) vaccination. On
August 28, 2017, the undersigned issued a decision awarding compensation to
petitioner based on respondent’s proffer. (ECF No. 18.)
On September 27, 2017, petitioner filed a motion for attorneys’ fees and costs.
(ECF No. 22.) Petitioner requests attorneys’ fees in the amount of $6,130.00 and
attorneys’ costs in the amount of $948.78. (ECF No. 22-2 at 2.) In accordance with
1 Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends to post it on the United States Court of Federal Claims' website, in accordance with
the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services). 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, the undersigned agrees that the identified material fits
within this definition, the undersigned 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 (2012).
General Order #9, petitioner's counsel represents that petitioner incurred no out-of-
pocket expenses. Thus, the total amount requested is $7,078.78.
On September 28, 2017, respondent filed a response stating respondent has no
objection to petitioner’s motion. (ECF No. 23.) Respondent cautions, however, that his
lack of objection “should not be construed as admission, concession, or waiver as to the
hourly rates requested, the number of hours billed, or the other litigation related costs.”
Id.
The undersigned has reviewed the billing records submitted with petitioner’s
request. In the undersigned’s experience, the request appears reasonable, and the
undersigned finds no cause to reduce the requested hours or rates.
The Vaccine Act permits an award of reasonable attorneys’ fees and costs.
§ 15(e). Based on the reasonableness of petitioner’s request and the lack of opposition
from respondent, the undersigned GRANTS petitioner’s motion for attorneys’ fees and
costs.
Accordingly, the undersigned awards the total of $7,078.78 3 as a lump sum
in the form of a check jointly payable to petitioner and petitioner’s counsel Mary
Coffey, Esq.
The clerk of the court shall enter judgment in accordance herewith. 4
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
3 This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all
charges by the attorney against a client, “advanced costs” as well as fees for legal services rendered.
Furthermore, § 15(e)(3) prevents an attorney from charging or collecting fees (including costs) that would
be in addition to the amount awarded herein. See generally Beck v. Sec’y of Health & Human Servs.,
924 F.2d 1029 (Fed. Cir.1991).
4 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
2
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450 So.2d 99 (1984)
Ex parte James W. HARRINGTON, Jr.
In re Margaret E. HARRINGTON
v.
James W. HARRINGTON, Jr.
83-28.
Supreme Court of Alabama.
April 6, 1984.
George P. Howard and G. Houston Howard, II of Howard, Dunn & Howard, and Robert B. Reneau of Reneau & Reneau, Wetumpka, for petitioner.
Charles H. Volz, Jr. of Volz, Capouano, Wampold & Sansone, Montgomery, for respondent.
ADAMS, Justice.
Margaret E. Harrington filed a tort action against her husband James W. Harrington for $5,000,000.00 in the Circuit Court of Montgomery County on June 22, 1983. However, on April 14, 1983, Margaret Harrington had filed a divorce action in the Circuit Court of Elmore County, in which she alleged that:
On or about, to-wit, February 4, 1983, James W. Harrington, Jr., the Husband, willfully and wantonly attacked the Wife, shooting her with a gun, causing severe personal injury to her person, rendering her a paraplegic, permanently paralyzed from the waist of her body to her feet. She was caused to be hospitalized for a long period of time and caused to suffer excruciating and severe mental and physical pain and anguish and the prognosis is that she will be confined to a wheelchair for the rest of her natural life and be caused to incur extensive costs and expenses for care, maintenance and treatment.
In her tort action, Margaret Harrington alleged:
On or about, to-wit, the 4th day of February, at or near, to-wit, County Road 29 near Powell's Grocery in Elmore County, Alabama, the Defendant willfully *100 or wantonly shot the Plaintiff with a gun.
As a proximate consequence of the Defendant's willful or wanton misconduct, the Plaintiff was caused to suffer the following injuries and damages:
Plaintiff was seriously wounded and was caused to be hospitalized for a long period of time and has been permanently and severely injured and paralyzed from the waist down, she suffers severe pain and mental anguish and will continue to suffer severe pain and mental anguish and will be paralyzed for the rest of her natural life, she has been caused to incur large expenses for hospital, doctor and other medical treatment for her injuries, she has been permanently and severely injured and paralyzed and is unable to enjoy the normal pursuits of life and happiness, she will be confined to a wheelchair for the rest of her natural life and be caused to incur extensive costs and expenses for her care, maintenance, treatment and support, and she will continue to suffer excruciating mental and physical pain and anguish for the rest of her natural life.
James Harrington filed a motion to dismiss Margaret Harrington's tort action in the Montgomery Circuit Court, claiming that plaintiff had previously filed a case in the Circuit Court of Elmore County, which is presently pending, which alleges substantially the same facts and seeks substantially the same relief, and that venue was improper in Montgomery County.
After an ore tenus hearing on August 19, 1983, the Honorable Joseph D. Phelps, Circuit Judge of Montgomery County, entered an order denying defendant's motion. Defendant then filed this petition for writ of prohibition, mandamus, or other relief, invoking the supervisory powers of this court under Amendment 328, § 6.02, to the Alabama Constitution and § 12-2-7 of the Alabama Code.
Subsequent to the filing of defendant's petition for mandamus, defendant filed a motion in limine in the Circuit Court of Montgomery County, in which he alleged that he had "struck all allegations of improper venue from both his answer and counterclaim," and requested the Circuit Court to instruct the plaintiff and her counsel not to mention, refer to, interrogate concerning or attempt to convey to the jury in any manner the fact that improper venue actions had been struck from the answer and counterclaim. The case proceeded to trial and a jury verdict in favor of the plaintiff Margaret E. Harrington was returned on the 1st day of March 1984.
As a result of the actions of the defendant concerning the venue allegations in his motion, Margaret Harrington has asked us to dismiss James Harrington's petition for mandamus on the ground that her husband's actions have rendered his petition filed with us moot. Plaintiff's petition for writ of mandamus, prohibition, or other relief is due to be denied.
In order for defendant Harrington to prevail on his petition for writ of mandamus or other relief, he is obligated to convince this court that Margaret Harrington is or was pursuing the same cause of action in two distinct courts, and/or that venue was not proper in Montgomery County because in truth and fact James Harrington was a permanent resident of Elmore County.
We will address petitioner's first contention first. Fortunately, we have been provided with excellent briefs by the parties. Petitioner relies heavily on our decision in Terrell v. City of Bessemer, 406 So.2d 337 (Ala.1981). The petitioner quotes the following from Terrell:
In Sessions v. Jack Cole Co., 276 Ala. 10 at 12, 158 So.2d 652 at 654 (1963), this court, quoting with approval from Chappell v. Boykin, 41 Ala.App. 137, 140, 127 So.2d 636, 638 (1960), cert. denied 271 Ala. 697, 127 So.2d 641 (1961), interpreting the rule against splitting one's cause of action, observed that "a `cause of action' grows out of the wrongful act, and not the various forms of damages that may flow from the single wrongful act." This court stated also that application of *101 this rule is guided by "whether a judgment in one suit would be res judicata of the other." Sessions, 276 Ala. at 12, 158 So.2d at 654.
Plaintiff's state and federal actions arise from the same alleged fact situation. Although plaintiff's state court action was instituted on different theories of recovery, these theories are not different causes of action in the context of the rule against splitting a cause of action. A cause of action may give rise to one [or] more theories of recovery. It has been recognized that where a single wrong leads to an action under state law and leads to an action under federal law, there is but one wrong and one cause of action.
Id. at 339.
Petitioner states that the wrongful act in both the Montgomery County and the Elmore County cases is the shooting of the plaintiff. He further contends that the only difference in the two actions is the form of relief sought in the two cases. In Elmore County, the relief sought is an award of "any and all real or personal property in which the husband may own an interest." In Montgomery County, the relief sought is $5,000,000.00. Petitioner argues that since the form of relief does not determine whether there are two causes of action, and there was only one wrong, Mrs. Harrington's suit in Montgomery County is prohibited by our decision in Terrell, and by Code 1975, § 6-5-440.
In other words, petitioner contends that if there has been an assault and battery on a wife and a divorce action is filed, the wife should not be allowed to file a separate suit for assault and battery, but should be required to join her claim of assault and battery in her divorce action. This is true, he says, since with the merger of law and equity, "[a] party asserting a claim to relief... may join ... as many claims either legal or equitable, or both, as he has against an opposing party." A.R.Civ.P. 18; Underwood v. Jarvis, 358 So.2d 731, 736-37 (1978).
But, as ingenious as petitioner's argument is, we are constrained to agree with Mrs. Harrington that the divorce action in Elmore County is simply not the same cause of action as her action in Montgomery County for assault and battery. We agree with her that the issues before the Elmore County court include the following:
(1) divorcetermination of the marriage res
(a) incompatibility
(b) irretrievable breakdown of the marriage
(c) actual violence
(d) habitual drunkenness
(2) property division
(3) alimony
(4) child custody and support
(5) attorney's fees
In the tort action in Montgomery County, the issues involved are:
(1) the nature of the wrong committed by defendant;
(2) the amount of compensatory damages recoverable by plaintiff;
(3) the amount of punitive damages recoverable by plaintiff;
(4) a determination by a jury of all of the factual issues set forth.
In order to determine whether causes of action are the same, the courts have developed certain tests. Two of these tests are: (1) res judicata, and (2) same evidence test. We addressed both of these tests in our decision in Braggs v. Jim Skinner Ford, Inc., 432 So.2d 466 (Ala.1983). There, plaintiff filed a suit based on Mini-Code and Truth-In-Lending Act claims. Subsequently, plaintiff filed a suit alleging fraud and misrepresentation and breach of warranty. There we held that since substantially different evidence supported each of plaintiff's actions, suit on the Mini-Code and Truth-In-Lending Act claims did not necessarily bar plaintiff's claims for fraud and misrepresentation and breach of warranty. We are of the opinion that the reasoning of that case applies with equal force in the instant case. The mere fact that plaintiff included in her divorce | {
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532 F.2d 747
Rosev.Mitsubishi International Corp.
No. 75-1969
United States Court of Appeals, Third Circuit
3/4/76
1
E.D.Pa.
REVERSED AND REMANDED
| {
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824 S.W.2d 445 (1991)
STATE of Missouri, Respondent,
v.
William B. HENDERSON, Appellant.
Nos. 57526, 59572.
Missouri Court of Appeals, Eastern District, Division Five.
October 1, 1991.
*447 William L. Webster, Atty. Gen., Elizabeth L. Ziegler, Asst. Atty. Gen., Jefferson City, for respondent.
Henry Robertson, Asst. Public Defender, St. Louis, for appellant.
SIMON, Judge.
Appellant appeals his convictions by a jury of first degree murder and armed criminal action, Sections 565.020 and 571.015 RSMo (1986), for which appellant was sentenced to consecutive terms of life without parole and life imprisonment. Appellant also appealed from the denial of his Rule 29.15 motion, but has apparently abandoned his appeal because his brief contains no points raised concerning the post conviction motion. We dismiss his Rule 29.15 motion appeal due to its abandonment. State v. Mayo, 784 S.W.2d 897[1] (Mo.App.1990).
On appeal, appellant asserts that the trial court erred in: (1) admitting into evidence the letter written by the victim because it was inadmissible hearsay and allowing the jury to view the letter during their deliberation; (2) refusing appellant's Instruction B defining "mental disease or defect" as any mental abnormality regardless of its medical label, origin, or source; (3) compelling disclosure of appellant's conversations with nurse-counselors at Hyland Center because they contained privileged communications and letting testimony of the conversations go to the jury on the issue of guilt; (4) overruling his motion to suppress his statements made to the police because the statements were involuntary in that he had made incriminating statements without benefit of the Miranda warnings and he was not taken before a magistrate as soon as practicable; and (5) granting leave to the state to file a second amended information. We affirm.
A brief recitation of the facts viewed in a light most favorable to the verdict is necessary. Around 2:30 a.m. on June 6, 1988, appellant called the nursing center at Hyland Center and told the nurse who answered the call that his wife was a prostitute, she had come home high on cocaine and he wanted her out of the house. Appellant said he had guns in the house and was afraid of what might happen. The nurse referred appellant to various counseling organizations and suggested he call a friend. Appellant called back at 5:10 a.m. Speaking to a second nurse, appellant stated he was going to shoot his wife and then kill himself because she had been sleeping with his friends for drugs. The nurse who had answered the first call talked to appellant once again. Appellant told her that he had made his wife write a letter and began to read the letter over the phone. The nurse heard a female whimpering in the background and then a "pop". Next, she heard appellant say, "I missed you this time, you bitch, but I'll get you next time." A second "pop" was heard and then appellant told the nurse, "I killed her", and that he was going to kill himself, and hung up. While appellant was on the phone, the nursing staff had traced the call and notified the police.
Appellant called the Jefferson County Sheriff's office at 5:30 a.m. and calmly *448 said, "I killed my wife". He gave his name, address and specific directions to his home. Appellant said he killed his wife because she had been "running around with some guys". He also told the police his two children were in the bedroom, and he was going to "shoot himself with dope". Appellant called the police back at 5:45 a.m. and continued to talk until police arrived at his home. When asked whether his wife was dead, appellant stated that he knew for a fact that she was dead because he had laid there until she died.
At appellant's house, the police found appellant sitting in a chair with a gun beside him. Appellant was handcuffed and transported to the hospital in an unconscious state. Appellant's wife was found dead on the floor in front of him. She had died from massive hemorrhaging having been shot once in the chest. Around her body, police found five pages of a letter signed by Rebecca Henderson and William Henderson which began, "To whom it may concern; Why my husband is going to kill me." A pen was found in the victim's hand and both the pen and several pages of the letter were stained with her blood.
Appellant had injected himself with chlordane, a pesticide, and was hospitalized for eight days during which appellant was guarded by police but not questioned. On June 14, 1988, detectives took appellant to the Jefferson County Sheriff's Department and read him his rights. Appellant stated he understood his rights but refused to allow the police to tape his statement. After appellant made a statement to police concerning the incident, he was taken to the circuit court. Other facts will be adduced as necessary.
In his first point, appellant claims the trial court erred in admitting into evidence the letter written by the victim. Overruling appellant's motion in limine, the trial court permitted the letter to be identified and referred to under the theory of res gestae. During trial, the letter was read and admitted into evidence. At that time, the trial court also stated the letter qualified as a dying declaration or an adoptive admission by the appellant. Appellant argues the letter was not within res gestae because it was not a spontaneous declaration nor did it qualify for any of the other exceptions under the hearsay rules. Respondent argues the letter was relevant, not for the truth of the matter asserted, but to corroborate appellant's statements to others demonstrating his deliberation.
Generally, the letter would be hearsay, but we find it admissible as an adoptive admission. One may expressly or implicitly adopt the statement of another as his own and such can constitute an admission of a party opponent. State v. Laws, 668 S.W.2d 234, 239[10] (Mo.App.1984). See also, Fed.R.Evid. 801(d)(2).
To establish the adoption of a hearsay statement sufficient to make it admissible as an adoptive admission, the state must show that the accused against whom the statement is offered had knowledge of the declarant's statements, and second, the accused, having such knowledge, has, by words or other conduct, manifested his adoption of it. 23 C.J.S. Criminal Law, Section 888 p. 100 (1989). See also McCormick on Evidence, 3rd Ed., Section 269 p. 797 (1984).
Here, appellant clearly admits knowledge of the contents of the letter and adopts it as his own. When appellant called Hyland Center a second time, the nurse who answered the phone heard appellant ordering his wife to "write." Then when the nurse who answered appellant's first call to Hyland was brought to the phone appellant told her that he made his wife write a letter containing the names of people she had slept with and he read part of the letter over the phone to her. The evidence therefore suggests appellant knew of the letter's contents. Additionally, the letter was found with appellant's signature and he later admitted to police that he signed the letter. Appellant had knowledge of the contents of the letter, he signed the letter, and later admitted signing the letter, thus manifesting his knowledge and adoption of the letter.
Appellant cites several cases to support his position, but they are distinguishable. In State v. Cochran, 356 Mo. 778, 203 *449 S.W.2d 707, 713 (1947), the letter was clearly hearsay as the defendant had no knowledge of the letter's existence nor took any efforts to adopt it. In a California case, People v. Maki, 39 Cal.3d 707, 217 Cal.Rptr. 676, 704 P.2d 743, 746-8 (1985), invoices from a car rental agency with defendant's signature were not deemed adoptive admissions because it couldn't be shown that the defendant had read over the document before signing. Here, appellant took part in the writing of the letter, was heard telling his wife to write, and read parts of the letter over the phone. Finally, appellant refers to State v. Orecchio, 27 N.J.Super. 484, 99 A.2d 595, 602 (1953), where the court refused to assume the defendant had read the letters in question because they were not addressed to him and were found in a common office used by others. Here, the evidence clearly establishes appellant's participation and knowledge.
Appellant also claims that during deliberation, the jury was allowed to examine the letter for an impermissible reason, namely as a conclusion or opinion and for the victim's state of mind. The note from the jury stated, "We would like to see the letter written by Rebecca Henderson stating she was afraid for her life." The jury, in its request to view the letter, did not state an impermissible reason, but merely identified the letter. The jury had knowledge of the letter, its contents and the fact that it was stained with the victim's blood. The trial court did not err in allowing the jury to examine the letter.
In his second point, appellant claims the trial court erred in refusing appellant's Instruction B which defined "mental disease or defect" as meaning any mental abnormality regardless of its medical label, origin, or source. The trial court refused this instruction and gave Instruction 6, tracking MAI-CR 3d 308.03, which defined mental disease or defect to exclude "an abnormality manifested only by repeated antisocial conduct". Appellant claims this language was not supported by the evidence and allowed the jury to disregard appellant's evidence for impermissible reasons.
Appellant is presumed free of mental disease | {
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FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
July 25, 2013
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
MICHAEL ORLANDO ROLLIE,
Petitioner - Appellant,
No. 13-1248
v. (D.C. No. 1:12-CV-02120-LTB)
D. Colorado
FRANCES FALK, and THE
ATTORNEY GENERAL OF THE
STATE OF COLORADO,
Respondents - Appellees.
ORDER DENYING
CERTIFICATE OF APPEALABILITY *
Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this matter. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order 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. 32.1.
Petitioner and Colorado state prisoner, Michael Orlando Rollie, proceeding
pro se, seeks a certificate of appealability (“COA”) to enable him to appeal the
dismissal of his 28 U.S.C. § 2254 application for a writ of habeas corpus. His
§ 2254 application challenged the validity of his conviction in a Colorado state
court case. Concluding that Mr. Rollie has failed to demonstrate that he is
entitled to the issuance of a COA, we deny him a COA and dismiss this matter.
BACKGROUND
As noted by the district court, the Colorado Court of Appeals summarized
the lengthy state court proceedings in the relevant Colorado case (Boulder County
district court case No. 96CR677) as follows:
In November 1996, defendant was convicted on a jury verdict
of first degree assault, third degree assault, menacing, reckless
endangerment, prohibited use of a weapon (reckless discharge), and
prohibited use of a weapon (possession under the influence).
In April 1997, the trial court granted defendant’s motion for a
new trial based on the court’s failure to instruct the jury on
provocation. The order granting a new trial was affirmed on appeal.
See People v. Rollie, (Colo. App. No. 97CA0850, May 7, 1998) (not
published pursuant to C.A.R. 35(f)).
In April 1999, defendant pleaded guilty to menacing, and, on
June 4, 1999, the trial court sentenced him to thirty months in the
custody of the Department of Corrections (DOC). Thereafter, the
trial court granted defendant’s motion for reconsideration of his
sentence under Crim. P. 35(b), reducing his sentence to eighteen
months in the custody of the DOC.
-2-
In March 2010, defendant filed a Crim. P. 35(c) motion,
arguing that (1) his plea counsel was ineffective because he
incorrectly advised him that, if he went to trial, there would be no
possibility of an acquittal and a heat of passion instruction would
only mitigate the conviction to a class five felony; and (2) the trial
court failed to advise him of his constitutional rights and the
elements of the crime to which he pled guilty. Defendant
acknowledged that his motion was untimely but alleged there was
justifiable excuse or excusable neglect because his counsel was
ineffective and he did not know that his conviction was
constitutionally infirm.
On June 18, 2010, the trial court denied defendant’s motion as
time barred, finding that defendant did not “allege facts which, if
true, would establish justifiable excuse or excusable neglect” because
“the ineffectiveness of his [plea] counsel [had] no bearing on the
reasonableness of [his] delay in filing a post-conviction motion.”
The court further found that neither “the lack of any ‘present need’ to
collaterally attack a prior conviction, nor the recent discovery of a
legal basis for a collateral attack, constitute[d] justifiable excuse or
excusable neglect.”
On June 30, 2010, defendant filed a pro se “Petition for Crim.
P. 35(c) Rehearing,” requesting that the court reconsider its finding
that there was no justifiable excuse or excusable neglect for the late
filing of his Crim. P. 35(c) motion. Defendant alleged that, in a
subsequent criminal case that arose in 2006 (2006 case), the trial
court’s “fail[ure] to litigate the constitutional admissibility” of his
1999 conviction gave him the present need to challenge the
conviction under Crim. P. 35(c) and that he asked his defense
counsel in the 2006 case to file a Crim P. 35(c) motion challenging
the prior conviction but counsel did not do so.
On August 17, 2010, the trial court denied defendant’s motion,
again finding that defendant failed to establish justifiable excuse or
excusable neglect because the allegations did not show why he could
not have filed a postconviction motion within the three-year
limitations period.
On October 13, 2010, defendant appealed the trial court’s June
18, 2010, and August 17, 2010, orders, along with a request to accept
-3-
the notice of appeal as timely filed. On November 12, 2010, the
motions division of this court dismissed the appeal as to the June 18,
2010, order but accepted the notice of appeal as timely with regard to
the August 17, 2010, order.
Order at 2-4 (quoting People v. Rollie, No. 10CA2111 (Colo. Ct. App. Dec. 22,
2011)).
The Colorado Court of Appeals then affirmed the trial court’s denial of
Mr. Rollie’s petition for rehearing of the court order denying his postconviction
motion under Colo. R. Crim. P. 35(c). On May 29, 2012, the Colorado Supreme
Court denied certiorari.
Mr. Rollie subsequently filed, on August 10, 2012, his original 28 U.S.C.
§ 2254 application (the instant application) in federal district court. He filed an
amended application on September 5, 2012. In his amended application, Mr.
Rollie asserted five claims, all relating to the 1996 Colorado state conviction,
No. 96CR677, and described as follows by the district court:
(1) The reinstatement of trial counsel after the trial court found
counsel to be ineffective violated his Sixth and Fourteenth
amendment rights to conflict-free counsel;
(2) The trial court and trial counsel failed to advise him of his
constitutional rights pursuant to Colo. R. Crim. P. 32(c) and
Colo. R. Crim. P. 35(c), causing the conviction in No.
96CR677 to be constitutionally invalid;
(3) “The defendant has a present need pursuant to the IV ABA
Standards for Criminal Justice § 22.2-4 (2d ed. 1986) (ABA
Standards), when the challenged conviction, 96CR677, was
used against him and was a factor in sentencing in his Denver
criminal case which is pending on appeal in 08CA391”;
(4) “When the defendant was not allowed an opportunity to ensure
that the unconstitutional conviction, 96CR677, was not used
-4-
against him in his Denver criminal case which is pending on
appeal in 08CA391, his due process of law right was violated”;
(5) “The Defendant’s guilty plea to the menacing charge was not
knowingly entered.”
Order at 4 (quoting Amended Application for a Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2254 at 5-13; R. Vol. 1 at 50-58).
On October 16, 2012, the magistrate judge to whom the matter had been
referred directed the Respondents (the Warden and the Colorado Attorney
General) to file a pre-answer Response limited to addressing the affirmative
defenses of timeliness under 28 U.S.C. § 2244(d) and exhaustion of state court
remedies under 28 U.S.C. § 2254(b)(1)(A). Respondents argued, first, that
Mr. Rollie fails to meet the “in custody” requirement under § 2254(a) because the
conviction he challenges (the 1996 conviction in case No. 96CR677) has expired,
inasmuch as | {
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[Cite as State v. Baker, 2016-Ohio-3471.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 15AP-224
v. : (C.P.C. No. 13CR-1663)
Larry Baker, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on June 16, 2016
On brief: Ron O'Brien, Prosecuting Attorney, and Seth L.
Gilbert, for appellee.
On brief: Clark Law Office and Toki M. Clark, for appellant.
APPEAL from the Franklin County Court of Common Pleas
BRUNNER, J.
{¶ 1} Defendant-appellant, Larry Baker, appeals from a judgment of the Franklin
County Court of Common Pleas entered on February 25, 2015, which sentenced him to a
two-year term of imprisonment on a single count of burglary following a guilty verdict in a
trial by jury. Specifically, Baker challenges the authenticity of a video used against him as
well as the sufficiency and weight of the evidence against him. For the following reasons,
we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On Monday, September 24, 2012, a pastor with the Rock City Church was in
the church offices at 950 Michigan Avenue in Columbus, Ohio preparing to deposit the
collection money obtained on the preceding Sunday. He opened the safe in his office,
removed packets of checks, other donation receipts from online sources, and an envelope
of cash. The cash envelope was clearly marked "cash" and had the amount listed on the
outside, approximately $1200. (Tr. Vol. II at 39.)
2
No. 15AP-224
{¶ 3} After placing the envelopes on his desk, the pastor left his office briefly to
use the restroom down the hall from his office. On the way back, he spoke briefly with the
only other person working in the building that day, the church's youth pastor. In total, he
was away from his office for approximately five minutes. When he returned to his office
the cash envelope was gone.
{¶ 4} Initially believing he had merely misplaced the envelope or misremembered
ever having it, he investigated by contacting members of the church who took and
counted the collection in order to confirm that indeed there had been a cash envelope.
However, after he exhausted those avenues, he contacted Integrated Building Systems
("IBS") (the landlord from which the church rented the office space) to determine if the
building had security camera records. IBS did have a security camera system and one of
the cameras captured activity in the hallway in the area of the route between an outside
entry door and the doorway of the pastor's office.
{¶ 5} The pastor contacted the police and either on the day of the theft,
September 24, 2012, or the day after, a Columbus police officer arrived at the scene and
reviewed the video with the pastor that had been captured by IBS' system. The pastor fast
forwarded and rewound through the video with the police officer until they found a
segment of video that showed some activity. The pastor requested from IBS a copy of the
video segment showing activity. Employees of IBS made a copy and gave it to the pastor
who, in turn, delivered it into the hands of the police.
{¶ 6} The video, which was ultimately introduced into evidence and played at
trial, is in the record before this Court, and we have reviewed it. It shows a man (whom
the jury ultimately determined was Baker) entering the building and slowly ambling from
doorway to doorway looking inside each room. From viewing the video, he is dressed in a
shirt and tie, has a messenger bag slung across his chest, and appears to be clutching
some papers. When he enters the pastor's office, there is a longer period in which he is
not visible than when he looked in any of the other doorways. After this period, he sticks
his head out and carefully looks both directions up and down the hall before pulling his
head back into the office. Seconds later, he exits the office with some envelopes or papers
in his grasp. He pauses briefly to look over his shoulder and then lopes, with soft
3
No. 15AP-224
exaggerated jogging strides, down the hall and out the outer door of the church offices,
both opening and closing the door slowly.
{¶ 7} The pastor did not know who the man was, but he said that, despite the fact
that the church offices are not open to the public or advertised by signs, he had entered
the church offices once before, approximately three to six months prior to the day of the
theft. On that occasion, when confronted by staff, he told them he was collecting for some
charity or organization, gave the church staff a pamphlet, and left. Despite the fact that
the pastor did not know Baker's identity, by a method not reflected in the record, the
police came to suspect that Baker was the man shown in the video. Thus, in December
2012, a Columbus police detective went to speak to Baker. He showed Baker
photographic stills taken from the video. Baker admitted the photographs looked like him
but did not admit that they were he and did not admit to having been in the Rock City
Church offices. Baker related that he goes to a great number of places, to pass out
resumes and flyers seeking donations for the homeless.
{¶ 8} A Franklin County Grand Jury indicted Baker on March 26, 2013 for a
single count of burglary. Apparently because of a service delay, Baker was not arraigned
until August 1, 2014, when he pled not guilty. On January 26, 2015, a jury trial in the case
began. The facts related above were introduced into evidence during that trial, and on
January 29, 2015, the jury found Baker guilty. On February 25, 2015, the trial court
sentenced Baker to serve two years in prison.
{¶ 9} Baker now appeals.
II. ASSIGNMENTS OF ERROR
{¶ 10} Baker presents four assignments of error for review:
[1.] THE VERDICT OF GUILTY IS NOT SUPPORTED BY
LEGALLY SUFFICIENT EVIDENCE.
[2.] THE CONVICTION OF APPELLANT IS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
[3.] THE TRIAL COURT ERRED WHEN IT FAILED TO
GRANT DEFENDANT'S MOTIONS FOR ACQUITTAL.
[4.] THE TRIAL COURT ERRED IN FAILING TO EXCLUDE
MODIFIED VIDEO EVIDENCE THAT WAS NOT
AUTHENTICATED.
4
No. 15AP-224
For clarity of analysis, we address the assignments of error out of order.
III. DISCUSSION
A. Fourth Assignment of Error–Whether the Trial Court Erred in
Failing to Exclude the Surveillance Video
{¶ 11} Baker argues that the surveillance video introduced into evidence against
him was not properly authenticated, that there was evidence that the time stamp on it
could have been tampered with, and that it was "whittled down" from a much lengthier
video. (Baker's Brief at 11.)
{¶ 12} There is no evidence that the time stamp on the video was or could have
been tampered with. Indeed, the IBS witness who testified about the security system
expressly testified that, although the recorder occasionally is off by a few minutes and
needs to be adjusted, once a video is recorded, the time stamp is part of the video, and
there is no way, short of "TV show land" style editing to change the date and time. (Tr.
Vol. II at 145.)
{¶ 13} While witnesses testified that security cameras record a great deal of footage
of which this excerpt was only one small part, no witnesses testified that the surrounding
footage held any relevance at all to this case. The officer who reviewed the video with the
pastor testified that the two of them were "fast forwarding and rewinding through the
video to make sure [they] got everything" and "the segment that I - - contained [Baker] on
it was, maybe, a couple of minutes. No longer than that." (Tr. Vol. II at 153.) In the
absence of some reason to suspect that other parts of the video were potentially relevant,
we find no evidence in the record to support that any other portion of the video footage
available holds any importance as to whether or not the excerpt shown to the jury is
admissible.
{¶ 14} Authenticity is a condition precedent to admissibility but can be "satisfied
by evidence sufficient to support a finding that the matter in question is what its
proponent claims." Evid.R. 901(A). In a classic case of photographic authentication, the
person who took the photographs or videos would testify as to how and when they were
taken and that they show what they purport to show | {
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916 F.2d 709
1991 A.M.C. 698
Italusa Corp.v.M/V Thalassini Kyra
NOS. 90-7416, 90-7430
United States Court of Appeals,Second Circuit.
SEP 19, 1990
Appeal From: S.D.N.Y., 733 F.Supp. 209
1
AFFIRMED.
| {
"pile_set_name": "FreeLaw"
} |
[Cite as State v. Boddie, 2011-Ohio-6240.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 25904
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
SANTINO A. BODDIE COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellee CASE No. CR 09 09 2882
DECISION AND JOURNAL ENTRY
Dated: December 7, 2011
CARR, Presiding Judge.
{¶1} Appellant, State of Ohio, appeals the judgment of the Summit County Court of
Common Pleas. This Court affirms.
I.
{¶2} Appellee, Santino Boddie, was indicted on October 9, 2009, in case number CR
2009-09-2882, on one count of carrying concealed weapons in violation of R.C. 2923.12(A)(2), a
felony of the fourth degree; and one count of discharge of a firearm on or near prohibited
premises in violation of R.C. 2923.162(A)(2), a misdemeanor of the fourth degree. Boddie
pleaded not guilty at arraignment. The parties subsequently entered into plea negotiations. In
exchange for Boddie’s guilty plea, the State agreed to amend the count of carrying concealed
weapons to a count of attempted tampering with evidence in violation of R.C. 2923.02/2921.12,
2
a felony of the fourth degree, and to allow Boddie’s entry into the Prosecutor’s diversion
program. Boddie entered his guilty plea on March 10, 2010.
{¶3} On March 3, 2011, the trial court held a hearing for two purposes. First, the trial
court conducted a change of plea hearing in regard to two subsequent charges brought against
Boddie in another case, number CR 2010-11-3255. Boddie pleaded guilty to one count of
receiving stolen property, a felony of the fourth degree, and one count of attempted drug
possession, a misdemeanor of the first degree. The trial court scheduled a restitution hearing for
a later date.
{¶4} Second, the trial court conducted a hearing on Boddie’s participation in the
Prosecutor’s diversion program. The State informed the trial court that Boddie would no longer
qualify for participation in the Prosecutor’s diversion program because of the new criminal case.
Defense counsel conceded that Boddie was “aware that there is going to be an unsuccessful
termination from the diversion case.” The court noted the positive reports it had been receiving
to date regarding Boddie’s participation in the diversion program. The court then stated that,
based on the questionable factual basis for the new charges, it would not find that Boddie had
unsuccessfully completed the diversion program. On March 8, 2011, the trial court issued an
order continuing Boddie in the diversion program and scheduling a diversion status for April 13,
2011.
{¶5} On April 13, 2011, the trial court held a restitution hearing in case number CR
2010-11-3255 and conducted a status regarding Boddie’s participation in the Prosecutor’s
diversion program. On April 15, 2011, the trial court issued an order in which it found that
Boddie had successfully completed the diversion program. The court dismissed the indictment
3
in case number CR 2009-09-2882 and directed that the record be sealed. The State filed a timely
appeal, raising two assignments of error which this Court consolidates to facilitate review.
II.
ASSIGNMENT OF ERROR I
“THE TRIAL COURT ERRED IN DISMISSING THE INDICTMENT.”
ASSIGNMENT OF ERROR II
“THE TRIAL COURT ERRED IN FINDING THAT DEFENDANT BODDIE
SUCCESSFULLY COMPLETED THE DIVERSION PROGRAM.”
{¶6} The State argues that the trial court erred by finding that Boddie successfully
completed the Prosecutor’s diversion program and by dismissing the indictment in case number
CR 2009-09-2882. This Court disagrees.
{¶7} R.C. 2935.36(A) allows the prosecuting attorney to establish a pre-trial diversion
program which “shall be operated pursuant to written standards approved by journal entry by the
presiding judge *** of the court of common pleas[.]” Upon successful completion of the
diversion program by an accused, “the prosecuting attorney shall recommend to the trial court
that the charges against the accused be dismissed, and the court, upon the recommendation of the
prosecuting attorney, shall dismiss the charges[.]” R.C. 2935.36(D). However, “if the accused
violates the conditions of the agreement pursuant to which the accused has been released, the
accused may be brought to trial upon the charges[.]” Id. This Court has written in a case upon
which the State relies that “the trial court has the authority to hold a hearing to determine
whether the conditions of the diversion program have been satisfactorily met by an accused.”
State v. Curry (1999), 134 Ohio App.3d 113, 117.
4
{¶8} In this case, the trial court scheduled the issue of Boddie’s participation in the
diversion program for hearings on March 3, 2011, and April 13, 2011, to determine whether he
had successfully completed the program. The State did not object to either hearing. At the
March 3, 2011 hearing, Boddie informed the trial court of the facts underlying his two charges in
case number CR 2010-11-3255. The trial court expressed its opinion that, if the facts were as
Boddie claimed, the State would have had a difficult time proving any criminal intent by Boddie.
At the April 13, 2011 hearing, the trial court delineated some of the conditions established for
Boddie’s successful completion of the diversion program, including his participation in a gun
safety class, his enrollment in classes at a local university, and his obtaining negative drug
screens. The court noted his successful completion of those conditions notwithstanding an
intervening kidney transplant surgery and recovery. The trial court then noted the specious
circumstances underlying the charges in case number CR 2010-11-3255 and found that “while
Mr. Boddie has violated rules, the letter of the rules, he has not violated the spirit of the rules in
the Prosecutor’s Diversion Program.”
{¶9} The State on appeal alleges that Boddie violated the conditions of the diversion
program by committing a new offense. However, the State failed to enter into evidence the rules
by which Boddie was bound in order to successfully complete the diversion program. In the
absence of those rules, this Court is unable to determine whether the trial court erred in
determining that Boddie had not violated the rules in such a way as to require a finding that he
unsuccessfully participated in the program. The State’s assignments of error are overruled.
III.
{¶10} The State’s assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
5
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
MOORE, J.
DICKINSON, J.
CONCUR
APPEARANCES:
TODD M. CONNELL, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40215
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICENTE CABALLERO-RODRIGUEZ,
also known as Antonio D. Toribio,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-99-CR-409-1
--------------------
October 19, 2000
Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
The federal public defender appointed to represent Vicente
Caballero-Rodriguez has filed a motion to withdraw and a brief as
required by Anders v. California, 386 U.S. 738 (1967).
Caballero-Rodriguez has not filed a response.
Our independent review of the brief and the record discloses
no nonfrivolous issue. Accordingly, counsel’s motion to withdraw
is GRANTED. Counsel is excused from further responsibilities
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 00-40215
- 2 -
herein, and the APPEAL IS DISMISSED. See 5TH CIR. R. 42.2.
| {
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15 So.3d 588 (2009)
MILLER
v.
STATE.
No. 2D09-1750.
District Court of Appeal of Florida, Second District.
July 30, 2009.
Decision without published opinion Mandamus denied.
| {
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 99-3372
___________
John E. Scott, Sr.; Denise *
D. Clark, and on behalf of *
themselves and all others *
similarly situated, *
*
Plaintiffs/Appellees, *
*
v. *
* Appeals from the United States
United Automobile, Aerospace * District Court for the District of
and Agricultural Implement * Minnesota.
Workers of America (UAW *
Union), Local Union 879, a *
Labor Organization, *
*
Defendant/Appellant, *
*
v. *
*
Ford Motor Company, a *
Delaware Corporation, *
*
Defendant/Appellee. *
___________
No. 99-3811
___________
John E. Scott, Sr.; Denise *
D. Clark, and on behalf of *
themselves and all others *
similarly situated, *
*
Plaintiffs/Appellants, *
*
v. *
*
United Automobile, Aerospace *
and Agricultural Implement *
Workers of America (UAW *
Union), Local Union 879, a *
Labor Organization; Ford *
Motor Company, a Delaware *
Corporation, *
*
Defendants/Appellees. *
___________
Submitted: October 18, 2000
Filed: February 26, 2001
___________
Before WOLLMAN, Chief Judge, LAY and BEAM, Circuit Judges.
___________
BEAM, Circuit Judge.
These consolidated cases are "hybrid" actions under Section 301 of the Labor-
Management Relations Act, 29 U.S.C. § 185 (Section 301), filed by plaintiffs John E.
Scott, Sr. and Denise D. Clark, employees of Ford Motor Company's Twin Cities
Assembly Plant. Clark and Scott bring these actions on behalf of a putative class (the
class) of all employees of the Twin Cities facility who have been represented by the
United Automobile, Aerospace and Agricultural Implement Workers (UAW), Local
879 since 1984. The class alleges Ford breached the health and safety provisions of
its collective bargaining agreement (CBA) with UAW and that UAW breached its duty
-2-
of fair representation by failing to enforce the provisions. The district court granted
summary judgment in favor of Ford, reasoning that the class did not have standing to
maintain a Section 301 claim against Ford for violation of the health and safety
provisions of the CBA. The district court denied UAW's motion for summary
judgment, finding there were factual issues concerning whether UAW had breached its
duty of fair representation. This court granted UAW permission to appeal this
interlocutory ruling. Because we find that the class is barred from bringing suit against
UAW by the applicable statute of limitations, we affirm in part and reverse in part.
I. BACKGROUND
Scott filed a health and safety grievance on December 10, 1995, alleging Ford
had violated the CBA by exposing employees to hazardous chemicals without properly
warning and training the employees. UAW decided to withdraw this grievance in
January 1996, but due to a turnover of union representatives, the grievance was not
formally withdrawn until September 27, 1996. On February 1, 1996, Scott's attorney
filed charges with the recording secretary of UAW Local 879, against several members
of the executive board of Local 879. These allegations were substantially similar to the
allegations contained in the complaint in this action, with both asserting a breach of the
duty of fair representation. The initial complaint alleging the hybrid Section 301/breach
of fair representation claim was filed August 12, 1996, roughly one and one-half
months before the grievance was formally withdrawn by UAW.
Clark left Ford in February 1996 on medical leave and has not filed any
grievances nor made any health and safety complaints subsequent to that time. Clark
was not included as a named plaintiff to this action until January 1997.
-3-
II. DISCUSSION
In this action the class seeks to pursue a hybrid claim under Section 301 against
Ford for breach of the CBA and against UAW for breach of the duty of fair
representation. Although the contractual remedies under a collective bargaining
agreement between the employer and union ordinarily are exclusive, if the union has
sole power under the contract to utilize the higher stages of a grievance procedure and
wrongfully refuses to process a grievance, the employee may bring a hybrid action
under Section 301. Vaca v. Sipes, 386 U.S. 171, 184-85 (1967). In order to prevail
against either the employer or union, the employee must prove both that the union
breached its duty of fair representation and that the employer breached the collective
bargaining agreement. Id. at 186-87.
Such an action is governed by the six-month statute of limitations set forth by the
Supreme Court in DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151
(1983). In DelCostello, the Court reasoned that a hybrid Section 301 fair
representation claim resembled a claim for an unfair labor practice under the National
Labor Relations Act (NLRA), and imposed a six-month limitations period similar to the
limitation period found in section 10b of the NLRA. Id. at 169-70, 172. The statute
of limitations begins running when the employee "should reasonably have known of the
union's alleged breach." Evans v. Northwest Airlines, Inc., 29 F.3d 438, 441 (8th Cir.
1994).
The class cannot maintain an action against UAW for breach of the duty of fair
representation because the action was not filed within the six-month statute of
limitations. At the very latest, Scott knew that UAW was not going to pursue the
grievance when he filed charges against the union's executive board on February 1,
1996. Scott filed his December 1995 grievance with unit committee person John
Moore, and Moore was one of the board members Scott filed charges against on
February 1, 1996. In these charges, Scott alleges:
-4-
During the period from 1993 until 1996, Moore breached his duty of fair
representation owed to the membership of Local 879 by failing to handle
grievances regarding [health and safety issues] in a proper manner.
Moore dealt with grievances filed by members on these issues in a
perfunctory manner, and the manner in which he allowed them to be
processed was arbitrary, capricious, in bad faith, and without a rational
basis. These actions by Moore were in violation of the UAW
International Constitution, the Contract, and state and federal law.
Thus, it is apparent Scott had sufficient facts to form the basis of his breach of duty of
fair representation claim concerning the December 1995, grievance on February 1,
1996, more than six months prior to August 12, 1996, when this action was filed.
In Gustafson v. Cornelius Co., 724 F.2d 75 (8th Cir. 1983), a Section 301 hybrid
case wherein the exact date the union decided not to pursue the grievance was unclear,
we held that the cause of action accrued on the date the employee alleged in an unfair
labor practice charge that the union had decided not to pursue the grievance. Id. at 79-
80. In the alternative, we held the latest the cause of action could have accrued was
on the date the unfair labor practice charge was filed with the National Labor Relations
Board (NLRB). Id. at 79 n.10. See also Washington v. Service Employees Int'l Union,
Local 50, 130 F.3d 825, 826 (8th Cir. 1997) (holding that six- month statute of
limitations began to run on date employee filed unfair labor practice charge against
union with NLRB, and no continuing violation recognized). Although Scott filed the
charges here with the union's executive board rather than with the NLRB as was the
case in Gustafson and Washington, we do not see an appreciable difference. The key
inquiry is what Scott knew or reasonably should have known about the union's decision
to pursue the grievance. The record indicates Scott had the requisite knowledge on
February 1, 1996, at the very latest.
Further, there is evidence Scott had the requisite knowledge even earlier.
According to the CBA, only the Unit Health and Safety Representative has authority
-5-
to file a health and safety grievance. Scott's affidavit indicates he was frustrated with
these CBA-prescribed special procedures for health and safety violations and instead
filed a health and safety grievance, wrongly, through the collective bargaining grievance
system. Scott further indicated he knew he was using the wrong procedure for this type
of grievance, stating: "[m]y decision to try the regular grievance process was a
deliberate one, not one out of ignorance. I had no choice but to bypass the health and
safety process . . . ." Therefore, the December 1995 health | {
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449 F.2d 347
UNITED STATES of America, Plaintiff-Appellee,v.Addison CHANDLER, Defendant-Appellant.
No. 30775 Summary Calendar.*
United States Court of Appeals,Fifth Circuit.
Nov. 2, 1971.
Clyde Hurlbert, Biloxi, Miss., Courtappointed, for defendant-appellant.
Robert E. Hauberg, U. S. Atty., E. Donald Strange, Asst. U. S. Atty., Jackson, Miss., for plaintiff-appellee.
Before BELL, AINSWORTH and GODBOLD, Circuit Judges.
PER CURIAM:
Affirmed. See Local Rule 21.1
*
Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409
1
See NLRB v. Amalgamated Clothing Workers of America, 5 Cir. 1970, 430 F.2d 966
| {
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749 F.2d 300
53 USLW 2247, 40 Fed.R.Serv.2d 1
In re BENDECTIN PRODUCTS LIABILITY LITIGATION, Petitioner.
No. 84-3710.
United States Court of Appeals,Sixth Circuit.
Argued Oct. 23, 1984.Decided Oct. 26, 1984.Rehearing and Rehearing En Banc Denied Dec. 14, 1984.
Irving R.M. Panzer (argued), Washington, D.C., Barry J. Nace, Bethesda, Md., for appellant.
Stanley M. Chesley, Cincinnati, Ohio, for respondent.
Frank C. Woodside, III (argued) (Merrell-Dow), Dinsmore & Shohl, Cincinnati, Ohio, for appellee.
James G. Butler (Class), Raymond L. Henke, Butler, Jefferson, Dan & Allis, Los Angeles, Cal., for petitioner.
James G. Butler (Marco Cordova), Butler, Jefferson, Dan & Allis, Los Angeles, Cal., Richard H. Middleton, Jr., N. Calhoun Anderson, Jr., Middleton & Anderson P.C., Savannah, Ga., Gene E. Smith, Sherman Oaks, Cal., Leonard W. Schroeter, Schroeter, Goldmark & Bender, Seattle, Wash., Thomas H. Bleakley, Robert A. Tyler, Detroit, Mich., George S. Alfieris, Sherman Oaks, Cal., Stephen B. Murray, New Orleans, La., Barry Regar, Barry Regar, A Professional Law Corp., Palm Springs, Cal., Richard Warren Mithoff, Tommy Jacks, Doggett & Jacks, Houston, Tex., Elaine Mittleman, Falls Church, Va., Mari C. Bush, Boulder, Colo., Marceline Lasater, Gibbins, Burrow & Bratton, Austin, Tex., W. Russell Van Camp, Van Camp, Bennion & Kelleher, Spokane, Wash., Don L. Dees, Tulsa, Okl., Gary O. Galiher, Stanford H. Masui, L. Richard DeRobertis, Honolulu, Hawaii, John M. Anton, Rodney A. Klein, Inc., A Professional Corporation, Sacramento, Cal., for parties in support of petition for writ of mandamus.
Arthur H. Bryant, Trial Lawyers for Public Justice, P.C., Washington, D.C., Herbert B. Newberg, Herbert B. Newberg, P.C., Philadelphia, Pa., for amicus curiae Trial Lawyers for Public Justice.
Before KEITH and MARTIN, Circuit Judges, and JOHNSTONE, District Judge.*
BOYCE F. MARTIN, Jr., Circuit Judge.
1
Petitioners seek a writ of mandamus ordering the district court to vacate its order certifying a class action pursuant to Federal Rule of Civil Procedure 23(b)(1). 102 F.R.D. 239 (S.D.Ohio 1984). For the reasons stated below, the petition shall be granted, and the writ shall be issued.
I.
2
This case is just one stage in a massive products liability lawsuit against Merrell Dow Pharmaceuticals, Inc., the manufacturer of the drug Bendectin. Bendectin is a prescription drug developed to relieve morning sickness in pregnant women.1 Numerous plaintiffs have filed claims in both federal and state court alleging that they suffer from birth defects as a result of their in utero exposure to Bendectin.
3
The present controversy has its roots in a transfer order of the Judicial Panel on Multidistrict Litigation in early 1982. 533 F.Supp. 489. Pursuant to that order, all Bendectin actions pending in federal courts were transferred to the Southern District of Ohio for consolidated pretrial proceedings. Shortly after the transfer, a five-person Plaintiffs' Lead Counsel Committee was formed to coordinate discovery efforts for all plaintiffs in federal court.
4
Over the next year, many other cases were transferred to the Southern District of Ohio, and many more cases were filed in that court as original actions.2 In September 1983, the district judge issued an order to show cause why the cases should not be certified as a class action under Federal Rule of Civil Procedure 23 or, in the alternative, be consolidated for trial on common issues of liability pursuant to Federal Rule of Civil Procedure 42. After the parties responded to this order, the district judge held in November 1983 that the action was not appropriate for class certification and instead consolidated the cases for trial pursuant to Rule 42. The consolidation order, however, only included those cases that had been filed in Ohio federal courts, and the cases that had been transferred to the Southern District were to be returned to their original venue for trial unless the plaintiffs agreed to the consolidated trial.
5
The consolidated trial began June 11, 1984, and a jury was impaneled. Because of serious settlement negotiations between the Plaintiffs' Lead Counsel Committee and Merrell Dow, the district court recessed the trial on June 18 and certified a class for settlement purposes under Federal Rule of Civil Procedure 23(b). Merrell Dow has apparently made a settlement offer of $120 million, and a majority of the Plaintiffs' Lead Counsel Committee tentatively favor the settlement offer.3 A hearing is scheduled for October 31, 1984, to determine the proper allocation of the settlement among subclasses, and a fairness hearing on the settlement is scheduled for November 30.
6
In the order certifying the class, the district judge found that all four requirements of Rule 23(a) were easily met. The court also found that the requirements of Rule 23(b)(1)(A) and (B) were met.4 With respect to Rule 23(b)(1)(A), the district court stated that "continued case by case determinations will inevitably result in varying adjudications which will impose inconsistent standards of conduct upon the defendant." The district judge found 23(b)(1)(B) to have been met because "there is a risk that a limited fund may exist from which judgments can be satisfied." The district judge then certified a "non-opt out" class for settlement purposes of all persons exposed to Bendectin.
7
The district judge also subdivided the class into Subclasses A and B. Subclass A consists of all persons who had filed suit prior to the class certification order. Subclass B encompasses all persons who had not filed suit by that date.
8
Shortly after the certification order, several of the individual plaintiffs filed a petition with this Court for a writ of mandamus to vacate the district court's certification order. After the filing of the petition, a substantial number of plaintiffs has joined in the petition for the writ. Merrell Dow and a majority of the Plaintiffs' Lead Counsel Committee are opposing the petition for mandamus.
II.
9
This Court clearly has the power to issue a writ of mandamus pursuant to the All Writs Statute, 28 U.S.C. Sec. 1651. EEOC v. K-Mart Corp., 694 F.2d 1055, 1061 (6th Cir.1982); United States v. Harper, 729 F.2d 1216, 1221 (9th Cir.1984). The petitioners, however, bear a heavy burden in showing that mandamus is the proper remedy. Mandamus is an extraordinary remedy, Kerr v. United States District Court for the Northern District of California, 426 U.S. 394, 402, 96 S.Ct. 2119, 2123, 48 L.Ed.2d 725 (1976), and it will only be granted when the petitioner shows that "its right to issuance of the writ is 'clear and indisputable.' " In re Post-Newsweek Stations, Michigan, Inc., 722 F.2d 325, 329 (6th Cir.1983) (quoting Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 384, 74 S.Ct. 145, 148, 98 L.Ed. 106 (1953)). "[O]nly exceptional circumstances amounting to a judicial 'usurpation of power' will justify the invocation of this extraordinary remedy." Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305 (1967).5
10
While recognizing that the Supreme Court has admonished the circuit courts to issue writs of mandamus only in the most extraordinary circumstances, we believe that this admonition is only "a starting point in the effort to develop a specific framework which can assist when practical applications of the generalities is required." Bauman v. United States District Court, 557 F.2d 650, 654 (9th Cir.1977). Unfortunately, this Court has not defined such a framework because we have not been faced with a case that has called for a detailed examination of the writ. The Ninth Circuit, however, in an illuminating opinion, has identified the appropriate guidelines for the issuance of the writ in the class certification context. Bauman, 557 F.2d 650.6 Because we find the analysis of Bauman to be very persuasive, we shall apply it to the case at hand.
11
In Bauman the plaintiff in a class action proceeding sought a writ of mandamus to modify the district judge's order certifying a class under Rule 23(b)(2). In considering the petition, the Ninth Circuit outlined five guidelines, which it had distilled from the case law,7 to help decide if the issuance | {
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NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ROGER J. BROWN,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
____________________
2010-3175
______________________
Appeal from the Merit Systems Protection Board in
No. DE0432090182-I-3.
______________________
JUDGMENT
______________________
MINNETTE BURGES, Burges Law Offices, of Tucson,
Arizona, argued for petitioner.
JESSICA R. TOPLIN, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, argued for
respondent. With her on the brief were TONY WEST,
Assistant Attorney General, JEANNE E. DAVIDSON,
Director, and REGINALD T. BLADES, JR., Assistant
Director.
______________________
THIS CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
PER CURIAM (RADER, Chief Judge, LOURIE and
O’MALLEY, Circuit Judges).
AFFIRMED. See Fed. Cir. R. 36.
ENTERED BY ORDER OF THE COURT
May 10, 2011 /s/ Jan Horbaly
Date Jan Horbaly
Clerk
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117 F.3d 1433
Henryv.Gwinnett County*
NO. 96-9005
United States Court of Appeals,Eleventh Circuit.
June 16, 1997
Appeal From: N.D.Ga. ,No.95018491CVJTC
1
Affirmed.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
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472 F.3d 817
Dorlan Wayne WILLARD, Plaintiff-Appellant,v.FAIRFIELD SOUTHERN COMPANY, INC., Birmingham Southern Railroad Company, Defendants-Appellees.
No.A 05-14279.
No. 06-12455.
United States Court of Appeals, Eleventh Circuit.
December 12, 2006.
COPYRIGHT MATERIAL OMITTED J. Harry Blalock, Blalock & Blalock, P.C., Birmingham, Al, for Willard.
Michael Keith Gann, Huie, Fernambucq & Stewart, Birmingham, AL, for Defendants-Appellees.
Appeals from the United States District Court for the Northern District of Alabama.
Before ANDERSON and DUBINA, Circuit Judges, and VINSON,* District Judge.
DUBINA, Circuit Judge:
1
Appellant, Dorlan Wayne Willard ("Willard"), appeals the district court's orders denying his Rule 60(b) motion and granting summary judgment to defendants/appellees, Fairfield Southern Company, Inc. ("Fairfield") and Birmingham Southern Railroad Company ("BSRR"), the parent company of Fairfield, on Willard's Federal Employer's Liability Act ("FELA") claim.1 For the reasons that follow, we affirm the district court's orders.
I. BACKGROUND
A. Facts
2
The district court found the following undisputed facts. In 1983, U.S. Steel Fairfield Works ("Fairfield Works") transferred its rail operations to Fairfield, a newly formed corporation, which became a subsidiary of BSRR. BSRR is a common carrier by rail that holds itself out to the public for hire. Fairfield and BSRR share a Board of Directors, a trainmaster, office address, and emergency phone number. Fairfield pays BSRR a management fee for supervision of Fairfield's employees. Fairfield's trainmen and acting tower supervisors are the only Fairfield employees who work solely for Fairfield. All other Fairfield supervisors are also BSRR employees.
3
Fairfield provides rail service to U.S. Steel Corporation ("U.S. Steel"), to two vendors of Fairfield Works whose facilities are located on U.S. Steel's property (Fritz Enterprises and Tube City), and to U.S. Steel Mining Company, LLC ("U.S. Steel Mining"), a wholly owned subsidiary of U.S. Steel. Fairfield has separate and distinct contracts with Fairfield Works, U.S. Steel Mining, Fritz Enterprises, and Tube City. No common carrier, including BSRR, is a party to those contracts. Fairfield directly invoices its customers, and they, in turn, directly pay Fairfield for its services. Fairfield maintains a separate account which is used for funding its payroll and payments to vendors. Fairfield does not publish rate tariffs and does not receive any rate division from any common carrier railroad.
4
Furthermore, Fairfield does not own or lease any railroad tracks, and it does not maintain any wharves, docks, or other public facilities for the receipt or handling of freight. Fairfield does not link two common carriers. It operates only on tracks owned by the customers it serves. Nor does it operate over the tracks of any common carrier railroad, including BSRR.
5
In addition, Fairfield employees pay employment taxes under the Social Security Act, not the Railroad Retirement Act, and the employees are eligible to receive Alabama state unemployment benefits rather than benefits under the Railroad Unemployment Insurance Act. The United Steel Workers of America represents Fairfield's employees and the National Labor Relations Act governs their employment relationship. By contrast, the United Transportation Union and the Brotherhood of Locomotive Engineers represent BSRR train operating personnel, and the Railway Labor Act governs their employment relationship with BSRR. The Occupational Safety and Health Commission regulates Fairfield's train operations, while the Federal Railroad Administration regulates BSRR's train operations.
B. Procedural History
6
On September 25, 2002, Willard filed suit under the FELA, 45 U.S.C. § 51 (1986), against his employer, Fairfield, and its parent company, BSRR, for injuries that he allegedly incurred at work. Willard filed a motion for partial summary judgment, and Fairfield and BSRR filed motions for summary judgment. Several months later, Willard filed a Rule 56(f) motion to reopen discovery because he learned that the Federal Railroad Administration ("FRA") was investigating whether Fairfield was within its jurisdiction. The district court reopened discovery at Willard's request, and thereafter twice extended the time for reopened discovery because the FRA did not rule on the Fairfield matter in a timely fashion. By March 17, 2005, when the FRA had still not ruled on the matter, the district court took the motions for summary judgment under submission with the evidentiary material available as of that date.
7
In their motion for summary judgment, Fairfield and BSRR argued that Fairfield is an in-plant railroad not subject to the FELA; that Fairfield is not the alter ego of BSRR; and in any event, Willard was judicially estopped from pursuing any claims under the FELA because he already had accepted full medical benefits under the Alabama Workers' Compensation Act plus indemnity payments for his alleged injuries. Willard countered in his motion for summary judgment that Fairfield is subject to the FELA because it, like BSRR, is a common carrier by rail engaged in interstate commerce. Willard also claimed that his suit against BSRR was appropriate because Fairfield was BSRR's alter ego.
8
The district court granted summary judgment in favor of Fairfield and BSRR, finding that Fairfield is a private carrier, not a common carrier subject to the FELA. The district court also found that Fairfield is not the alter ego of BSRR. In light of its findings and conclusions, the district court declined to consider Fairfield and BSRR's estoppel argument. Willard filed a timely appeal.
9
While Willard's appeal from the district court's order on summary judgment was pending, he filed a Rule 60(b) motion to set aside final summary judgment, asserting that a letter from the FRA was "newly discovered evidence" which entitled him to relief from the court's prior summary judgment order. The district court requested briefing on the motion, then conducted oral argument on the matter. Following argument, the district court denied Willard's Rule 60(b) motion, finding that the FRA letter did not change its prior finding that Fairfield is a private carrier not subject to the FELA. Willard also appeals this order.
II. ISSUES
10
1. Whether the district court erred in granting summary judgment to Fairfield and BSRR because it found that Fairfield is a private carrier not subject to the FELA and that Fairfield is not the alter ego of BSRR.
11
2. Whether the district court abused its discretion in denying Willard's Rule 60(b) motion.
III. STANDARDS OF REVIEW
12
This court reviews de novo a district court's order granting a motion for summary judgment, applying the same legal standards as the district court. Johnson v. Bd. of Regents of Univ. of Ga., 263 F.3d 1234, 1242 (11th Cir.2001).
13
This court reviews the district court's order on a Rule 60(b) motion for abuse of discretion. Am. Bankers Ins. Co. of Fla. v. Nw. Nat'l Ins. Co., 198 F.3d 1332, 1338 (11th Cir.1999).
IV. DISCUSSION
A. Summary Judgment Motion
1. Common Carrier
14
The FELA creates a cause of action for injury sustained when the plaintiff is an employee and the defendant is a "common carrier by railroad" engaging in commerce between any of the several states or territories. 45 U.S.C. § 51. Section 51 provides:
15
Every common carrier by railroad while engaging in commerce between any of the several States or Territories, or . . . any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, . . . for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.
16
Id. The term "common carrier by railroad" has been defined to mean "one who operates a railroad as a means of carrying for the public, — that is to say, a railroad company acting as a common carrier." Edwards v. Pac. Fruit Express Co., 390 U.S. 538, 540, 88 S.Ct. 1239, 1240, 20 L.Ed.2d 112 (1968) (quoting Wells Fargo & Co. v. Taylor, 254 U.S. 175, 187-88, 41 S.Ct. 93, 98, 65 L.Ed. 205 (1920)). More recently, courts have noted that a common carrier is
17
one who holds himself out to the public as engaged in the business of transportation of persons or property from place to place for compensation, offering his services to the public generally. The distinctive characteristic of a common carrier is that he undertakes to carry for all people indifferently, and hence is regarded in some respects as a public serv[ | {
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FILED
NOT FOR PUBLICATION JUL 12 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
VIVECA SANAI, an individual; et al., Nos. 07-36002
07-36001
Plaintiffs - Appellants,
D.C. Nos. CV-02-02165-TSZ
v. CV-04-01594-TSZ
SASSAN SANAI, an individual; et al., MEMORANDUM *
Defendants - Appellees.
VIVECA SANAI, an individual; et al.,
Plaintiffs - Appellants,
v.
SASSAN SANAI, an individual; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, District Judge, Presiding
Submitted June 29, 2010 **
Before: ALARCÓN, LEAVY and PAEZ, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
In these related appeals, Viveca, Cyrus and Fredric Sanai appeal pro se from
the district court’s orders: (1) dismissing the complaints in both actions for
litigation misconduct; (2) denying leave to amend the complaint in the first action;
(3) imposing sanctions under Rule 11 of the Federal Rules of Civil Procedure for
filing duplicative claims in the second action, (4) staying proceedings in the second
action, and (5) prohibiting additional post-judgment filings in the first action. We
have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion all
orders on appeal. Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987)
(order dismissing complaint as a sanction for misconduct); Ditto v. McCurdy, 510
F.3d 1070, 1079 (9th Cir. 2007) (order denying leave to amend); In re Itel Sec.
Litig., 791 F.2d 672, 674-75 (9th Cir. 1986) (order imposing Rule 11 sanctions sua
sponte); Adams v. Cal. Dep’t of Health Serv., 487 F.3d 684, 688 (9th Cir. 2007)
(order staying litigation); S. Cal. Edison Co. v. Lynch, 307 F.3d 794, 807-08 (9th
Cir. 2002), 307 F.3d 794, 807-08 (9th Cir. 2002) (ruling expediting briefing
schedule). We affirm.
The district court properly dismissed the third amended complaint in the first
action and the remaining claims in the second action as a sanction for the
appellants’ litigation misconduct. See Computer Task Group, Inc. v. Brotby, 364
F.3d 1112, 1115-17 (9th Cir. 2004) (affirming sanction of dismissal after continued
2
discovery misconduct and defiance of courts’ orders). The misconduct warranting
dismissal included: repeatedly filing notices of lis pendens in violation of the
district court’s orders, failing to appear for duly noticed depositions, failing to
serve a defendant with a subpoena duces tecum seeking her financial records from
a third party, surreptitiously audio recording a defendant while simultaneously
suing him for wiretapping, and interfering with responses to subpoenas defendants
served on plaintiffs’ health care providers. See Brotby, 354 F. 3d at 1115-16.
Because we affirm the district court’s orders dismissing the actions as a
sanction, we do not consider the district court’s earlier orders granting summary
judgment to appellees on certain claims. Cf. Edwards v. Marin Park, Inc., 356
F.3d 1058, 1063 (9th Cir. 2004).
The district court properly denied the appellants’ motion for leave to file a
fourth amended complaint in the first action. See Ditto, 510 F.3d at 1078-79
(amendment is available where justice requires it, as determined by whether
amendment is sought in bad faith, would introduce undue delay, would prejudice
the opposing party or would be futile).
The district court properly sanctioned appellants under Rule 11 in the second
action for filing duplicative causes of action. The court ordered appellants to show
cause why they should not be sanctioned for realleging claims the court had
3
dismissed, gave them an opportunity to be heard, and thereafter made an express
finding that they had acted in bad faith. See Foster v. Wilson, 504 F.3d 1046,
1052-53 (9th Cir. 2007) (before imposing Rule 11 sanctions sua sponte, district
court must give the party notice including the reason for possible sanctions and an
opportunity to be heard); United Nat. Ins. Co. v. R & D Latex Corp., 242 F.3d
1102, 1116 (9th Cir. 2001) (sua sponte imposition of Rule 11 sanctions warranted
in situations akin to contempt of court); see also Buster v. Greisen, 104 F.3d 1186,
1189-90 (9th Cir. 1997) (Rule 11 sanctions upheld where later action sought to
relitigate issues resolved in earlier action, and was brought for the purpose of
harassment).
The district court properly stayed proceedings in the second action pending
resolution of the first action. See Adams, 487 F.3d at 688 (where a district court is
presiding over two cases involving the same subject matter, it may stay the second
action pending resolution of the first).
The district court properly prohibited appellants from filing further post-
judgment motions in the first action; it duly considered and resolved several post-
judgment motions and all issues were preserved for appeal. See S. Cal. Edison
Co., 307 F.3d at 807-08 (expedited briefing schedule did not prevent party from
4
presenting its case and party did not establish prejudice, thus due process was not
violated).
This court previously affirmed the dismissal of appellants’ claim that the
district court improperly refused to enjoin a state court proceeding, and we do not
reconsider that claim here. See Leslie Salt Co. v. United States, 55 F.3d 1388,
1392 (9th Cir. 1995) (“Under law of the case doctrine, [] one panel of an appellate
court will not reconsider matters resolved in a prior appeal to another panel in the
same case.”); see also Sanai v. Sanai, Nos. 03-35797, 03-35932, 04-35041 and 04-
35881, 2005 WL 1971873, at *2 (9th Cir. Aug. 17, 2005).
Appellants’ remaining contentions are unpersuasive.
Appellees’ motions for leave to file a surreply and to strike are denied.
AFFIRMED.
5
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97 F.3d 1468
Nereyv.Wasi*
NO. 95-4945
United States Court of Appeals,Eleventh Circuit.
Sept 10, 1996
1
Appeal From: S.D.Fla., No. 94-02515-CIV-UUB
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
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184 Cal.App.2d 376 (1960)
JACKSON TODD, Appellant,
v.
SOUTHERN PACIFIC COMPANY (a Corporation) et al., Respondents.
Civ. No. 18719.
California Court of Appeals. First Dist., Div. One.
Sept. 6, 1960.
Harold L. Strom and Pelton, Gunther, Durney and Gudmundson for Appellant.
Bledsoe, Smith, Cathcart, Johnson & Phelps and Robert A. Seligson for Respondents.
DUNIWAY, J.
This is another of the many cases that have come before the appellate courts in which an unsuccessful plaintiff, injured in a collision of moving vehicles at an intersection, claims error in refusing to instruct the jury upon the doctrine of last clear chance. Counsel asserts "that the evidence in this case virtually cries out for the application of the last clear chance doctrine." Our examination of the record, *378 in the light of the controlling authorities, persuades us that the evidence makes no such cry; the cry is merely that of counsel.
The doctrine was elaborately reviewed by the Supreme Court in Brandelius v. City & County of San Francisco, 47 Cal.2d 729 [306 P.2d 432], which has become the leading case upon the subject. Its restatement of the applicable formula appears at page 743 of the opinion and we do not repeat it here. We note, however, that the opinion reiterates and emphasizes certain considerations that control this case. [1] "[T]he time element is the all important factor." (P. 738.) [2] "[B]ut defendant is not liable under the doctrine unless after the time that he is chargeable with the required knowledge of the injured person's inability to escape, he 'has the last clear chance to avoid the accident by exercising ordinary care.' " (P. 741.) This is but another way of saying that the defendant must have not only a last chance, but a clear chance to avoid the accident. (Rodabaugh v. Tekus, 39 Cal.2d 290, 296, 297 [246 P.2d 663]; Doran v. City & County of San Francisco, 44 Cal.2d 477, 487 [283 P.2d 1].)
[3] These rules are the basis for the oft-repeated statements of our courts that ordinarily the doctrine cannot be applied to an intersection case involving a collision between two moving vehicles, and that the doctrine "never meant a splitting of seconds when emergencies arise" (Bagwill v. Pacific Electric Ry. Co., 90 Cal.App. 114, 121 [265 P. 517], quoted in our recent decision in Kowalski v. Shell Chemical Corp., 177 Cal.App.2d 528, 529, 537 [2 Cal.Rptr. 319]). The earlier cases are collected and discussed at length in Johnson v. Sacramento Northern Ry., 54 Cal.App.2d 528 [129 P.2d 503]. Other late cases restating and applying one or both of these principles are: Hildebrand v. Los Angeles Junction Ry. Co., 53 Cal.2d 826 [3 Cal.Rptr. 313, 350 P.2d 65]; Hall v. Atchison, T. & S. F. Ry. Co., 152 Cal.App.2d 80 [312 P.2d 739]; Clarida v. Aguirre, 156 Cal.App.2d 112 [319 P.2d 20]; Nemer v. Atchison, T. & S. F. Ry. Co., 156 Cal.App.2d 445 [319 P.2d 770]; Barcelone v. Melani, 156 Cal.App.2d 631 [320 P.2d 203]; Holman v. Viko, 161 Cal.App.2d 87 [326 P.2d 551]; Hickambottom v. Cooper Transp. Co., 163 Cal.App.2d 489 [329 P.2d 609]; Miller v. Atchison, T. & S. F. Ry. Co., 166 Cal.App.2d 160 [332 P.2d 746].
We recognize that the doctrine is a "humanitarian" one (Brandelius v. City & County of San Francisco, supra, 47 Cal.2d 729, 739), in that it relieves the plaintiff from the otherwise *379 adverse consequences of his own negligence. There is always a tendency to stretch such a doctrine so as to bring within it cases that would once have been excluded from its operation. But we think that to apply it here would stretch it to the breaking point and, as we said in Kowalski, supra, "would mean that there could be no intersection collisions to which the doctrine would not apply, and would completely do away with the defense of contributory negligence in such cases" (177 Cal.App.2d at p. 533).
[4] Viewed most favorably to the contention that the doctrine is applicable (Warren v. Ubungen, 177 Cal.App.2d 605, 608 [2 Cal.Rptr. 411]), the evidence discloses the following: As frequently happens, appellant suffered a retrograde amnesia at the time of trial, and had no memory of the events of the day of the accident, in exchange for which disability he is given the benefit of the presumption that he acted with due care. The result is that the only testimony of eyewitnesses comes from employees of the defendant.
The accident occurred on Madison Street, in Oakland, at its intersection with certain tracks of respondent Southern Pacific Company ("S.P."). Appellant was driving a Ford truck north on Madison, which runs north and south. The time was 4:30 in the afternoon, and there is no claim that visibility was poor. As he approached the intersection, appellant had on his right an open field, across which he could see the S.P. tracks for a considerable distance. Also on his right, and about 150 feet before the first track crosses Madison, there is a round, highway type railroad crossing sign. The first two tracks ahead of appellant were Santa Fe tracks, not in use at the time. They occupy about 18 feet, and the northernmost rail of these tracks is about 40 feet south of the first S.P. rail. The first S.P. rail was thus about 208 feet north of the crossing sign. Also on the right, and about 20 feet south of the first S.P. rail is the usual white "crossbuck" type of railroad crossing sign.
The first S.P. track ahead of appellant was a "drill track," 5 feet in width, used for temporary storage of box cars. On appellant's right, one box car was on this track. It was about 42 feet long, and its westerly end was about 10 feet east of the east line of Madison. On his left, a string of four similar cars was on the drill track, with the easterly end about 15 feet west of the west line of Madison. Appellant's view to the left was fully obstructed by buildings and then partially obstructed by a storage yard until he reached a point about 95 *380 feet south of the drill track, at which point he had a clear view of the S.P. tracks to his left, except as it was obstructed by the four box cars. The second S.P. track, 8 1/2 feet further north and 5 feet wide, was the main eastbound track of S.P. The next, 10 1/4 feet north of it, was the main westbound track. Still farther north was another drill track, not here involved.
As appellant proceeded, there was approaching from his right, on the westbound track, a single diesel engine of the S.P. (referred to as "the engine"). It was 55 feet long and weighed 250,000 pounds. Its headlights were on, but its bell was not ringing and it did not sound its whistle. Its cab was at least 10 feet back from its front end, so that the engineer, who was on the right, could not see appellant, but the fireman, who was on the left, could and did. The throttle, the principal braking controls, and the whistle control were next to the engineer. At the same time, there was approaching from appellant's left on the eastbound track a 66-car freight train (referred to as "the train"). It was sounding its bell and its headlights were on, but it did not whistle as it approached Madison Street.
Just as the cab of appellant's truck became visible to the fireman of the engine, when the truck appeared from behind the end of the single freight car on the drill track to appellant's right, the fireman saw that appellant was looking toward his left, in the direction of the train, and not toward the engine. The front of the truck was then less than 30 feet from a point at which it would, in its forward progress, intersect the path of the oncoming engine. The fireman yelled "hold it" (which means to apply the emergency brake) and the engineer did so. The left front pilotboard of the engine struck the right front of the truck, near the motor, and knocked it back onto the eastbound track, where it was struck by the train and thrown still farther south, against the crossbuck. Fortunately, appellant was thrown out of the truck by the first collision and clear of the train, so that he was not personally involved in the second collision.
Appellant does not assert that all of the elements of the last clear chance doctrine were present before his truck appeared from behind the box car and the fireman saw that he was still proceeding and looking the other way | {
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470 F.3d 33
UNITED STATES of America, Appellee,v.Steven D. MUEFFELMAN, Defendant, Appellant.
No. 05-2616.
United States Court of Appeals, First Circuit.
Heard November 6, 2006.
Decided November 28, 2006.
Martin G. Weinberg with whom Kimberly Homan was on brief for appellant.
Peter A. Mullin, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief for appellee.
Before BOUDIN, Chief Judge, CAMPBELL, Senior Circuit Judge, and LIPEZ, Circuit Judge.
BOUDIN, Chief Judge.
1
By a superseding indictment, Steven Mueffelman was charged by a federal grand jury with 15 counts of mail fraud, 18 U.S.C. § 1341 (2000), and 3 counts of wire fraud. Id. § 1343. A co-defendant, John Lombardi, pled guilty, but Mueffelman went to trial in a proceeding lasting almost a month. Reserving details and disputed issues for the discussion below, the evidence showed the following.
2
In the summer of 1996, Mueffelman, Lombardi and an attorney formed a business venture, using an inactive corporation whose name they changed to Commonwealth Capital Funding Corporation ("CCFC"). CCFC offered to assist persons who were poor or had low credit ratings in acquiring homes. A primary means was to be an arrangement in which CCFC purchased property selected by the client (within a designated price range) at up to 94 percent of its value and, in a paired transaction, immediately resold the property to the client for 100 percent of the value with full financing provided by a mortgage lender found by CCFC.
3
CCFC charged each client who enrolled in the program a $100 fee (doubled for couples and later upped to $125) for a credit check, plus one month's gross income from the client. In exchange CCFC seemingly promised 100 percent (later expressed as "up to 100 percent") financing. Only 17 of Mueffelman's approximately 300 clients ever purchased homes; those who did purchase homes paid more for the homes than the sellers were willing to sell them for and qualified for a mortgage on the basis of their credit, without assistance from CCFC. Thus, most of CCFC's income was from the initial fees rather than the 6 percent differential.
4
CCFC also claimed to offer a lease-to-purchase program which (as it was represented) would use a nonprofit entity to purchase a home with favorable financing and lease it to the client while the client cleaned up his or her credit record. If the client did so, the client would then assume the mortgage. A federal program was in place that provided insured financing under favorable terms where a nonprofit organization secured the financing and received the necessary government approvals.
5
CCFC attracted customers through advertising coupled with the use of so-called independent sales representatives who called upon and dealt directly with clients—receiving for themselves 30 percent of the initial client payment of one month's gross income. Mueffelman, as president of CCFC, hired the sales force, approved the sales literature, made decisions on purchase offers and sought to arrange for financing. In the course of its operations in Massachusetts, lasting from September 1996 to August 1997, CCFC had or sought relationships with various mortgage brokers and at least one nonprofit organization.
6
Investigations by the Massachusetts banking authorities led in August 1997 to an injunction against Mueffelman, Lombardi and CCFC. In the months preceding the injunction, Mueffelman set about organizing a new but similar venture in Florida under a different corporate name, which proceeded to enroll clients and collect fees. Through August 1997, CCFC took in about $1.2 million in fees from its over 300 clients; the sales force was paid over $400,000; and Mueffelman himself received over $167,000, apart from payments from the new Florida venture.
7
In its indictment, the government identified a number of specific falsehoods, which it said that Mueffelman had used or approved to secure money from clients. Each of the counts of mail or wire fraud that followed in the indictment identified a particular mail or wire communication by CCFC to a particular customer on a specified date as a means by which the scheme was executed. The indictment alleged not only that CCFC was a sham but also described particular false or misleading statements.
8
Specifically, the indictment charged that CCFC advertised "100% financing" and "Home ownership guaranteed!!" and otherwise appeared to guarantee financing without a down payment for those with poor credit (e.g., "Bankruptcy OK"); that CCFC claimed to have established relationships with lenders and government-supported loan programs when in fact it had no such track record; and that CCFC claimed it was an "investor" when in fact it did no more than seek lenders.
9
At trial the government offered evidence from which the jury could have found that CCFC had no record and little prospect of finding lenders for clients with poor credit records and no money for down payments; that the advertising would naturally lead clients to think that they were getting guaranteed financing for their month's gross income;1 and that Mueffelman continued to expand the business despite warnings from others including Lombardi as to difficulties in securing financing.
10
The jury convicted Mueffelman of 13 counts of mail fraud. (The government dismissed the remaining counts.) On November 1, 2004, the district court sentenced Mueffelman to 27 months in prison. Mueffelman now appeals, contesting both the jury verdict and his sentence. The standard of review varies with the issue raised, and we start with the attacks upon the judgment of conviction and then turn to the sentence.
11
Mueffelman does not deny in his brief that false statements to customers were made nor that he was responsible for them. His core arguments are that his conviction should be overturned because he optimistically believed that his programs would succeed; that—contrary to the indictment—his business was not a sham enterprise; and that the government's reliance at trial on the false statements was a constructive amendment of the indictment. We begin with Mueffelman's good-faith argument.
12
The mail fraud statute, so far as pertinent to this case, requires (1) a scheme to defraud or to obtain money or property by false or fraudulent pretenses; (2) the use of the mails in executing the scheme or attempting to do so; and (3) specific intent, inferred from statutory language and common law background, which excludes false statements honestly believed to be true and promises or predictions made in good faith. United States v. Cacho-Bonilla, 404 F.3d 84, 90 (1st Cir.), cert. denied, ___ U.S. ___, 126 S.Ct. 471, 163 L.Ed.2d 358 (2005); United States v. Dockray, 943 F.2d 152, 155 (1st Cir.1991); 2 Sand et al., Modern Federal Jury Instructions ¶ 44.01 (Instruction 44-3) (2005).
13
This is a far cry from saying that Mueffelman was free knowingly to make false statements to secure money from clients because he believed that his enterprise would succeed. One can be optimistic, even with good reason, about the prospects of a business, but one still cannot, for example, sell stock by lying about the business' past earnings or the presence of booked orders that do not exist. A prediction made in good faith may be sheltered; a statement of fact known to be false is not.2
14
In Dockray, we held that a good faith instruction is not required. 943 F.2d at 155. If references to good faith are made in fraud instructions, this must be done with great care. Here, the trial court's good faith instruction, taken as a whole, could easily have led the jury to think that lies were protected if Mueffelman believed in his enterprise. The pertinent language from the instructions is reprinted in an addendum to this opinion. The instruction was thus overly favorable to Mueffelman, but the jury convicted anyway.
15
Mueffelman attempts on appeal to use the overbroad instruction as the yardstick by which to measure the sufficiency of the evidence against him, claiming that the instruction is "the law of the case." It may be unhelpful to use the phrase "law of the case" in the present context, as if this court were bound by a district court's ruling; but, in any event, the overbroad instruction, properly objected to by the government and likely to be misread in Mueffelman's favor, does not prevent us from determining the proper legal tests for scienter.3
16
Using the correct legal yardstick, Mueffelman is unquestionably liable for statements of fact that he had to know were untrue. Importantly, his advertising said or implied that Mueffelman's business had been ongoing for several years, that it was in a position to secure 100 percent financing, and that it had a network of lenders willing to provide loans. Whether Mueffelman was generally optimistic about his venture does not excuse his lies.
17
Mueffelman's next argument is that the government charged in the indictment that his business was from the outset a sham and failed to prove it. The indictment did so charge: paragraph 22 stated, "In short, the entire business enterprise conducted by Mueffelman and Lombardi was a sham designed solely to generate advance fees." But the indictment also described in detail the effort to procure monies from clients by specific false | {
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4454
VICTOR TYRONE ENGLE,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
James A. Beaty, Jr., District Judge.
(CR-97-255)
Submitted: July 27, 1999
Decided: September 23, 1999
Before WILKINS, NIEMEYER, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Thomas H. Johnson, Jr., GRAY, NEWELL & JOHNSON, L.L.P.,
Greensboro, North Carolina, for Appellant. Walter C. Holton, Jr.,
United States Attorney, Sandra J. Hairston, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Victor Tyrone Engle was indicted by a federal grand jury and
charged with two counts of an eighteen count superseding indictment.
Count one charged Engle with conspiracy in violation of 21 U.S.C.A.
§ 846 (West Supp. 1999). Count eighteen charged Engle with posses-
sion with intent to distribute cocaine base in violation of 21 U.S.C.
§ 841(a)(1) (1994). Engle pled guilty to count eighteen in accordance
with a written plea agreement. At sentencing, the court increased
Engle's offense level by two levels because police officers found
three weapons at his residence at the time of his arrest. See U.S. Sen-
tencing Guidelines Manual § 2D1.1(b)(1) (1997). The court also sen-
tenced Engle as a career offender. See USSG§ 4B1.1. Engle now
appeals his sentence of 200 months' imprisonment.
Engle's attorney has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), addressing whether Engle should
have been classified as a career offender. Engle contends that the
prior convictions forming the basis for his career offender classifica-
tion should not have been counted against him because if he had pled
guilty to the conspiracy charge in count one of the indictment, the
prior convictions would have been counted as relevant conduct and
Engle would not have been sentenced as a career offender. This argu-
ment is without merit. Engle did not plead guilty to count one, but to
count eighteen. Based upon that plea, Engle met the criteria identified
by USSG § 4B1.1 for sentencing as a career offender. Furthermore,
Engle's contention is irrelevant and speculative. Therefore, the district
court did not err in sentencing Engle as a career offender.
Engle's pro se supplemental brief argues that his offense level
should not have been increased for possession of firearms. Engle
states that the increase was improper because the firearms at issue
were not found at his residence, as stated in the presentence report
(PSR), but were discovered by police in a field, separate and apart
from where the cocaine was located. Engle did not raise this point at
the plea proceeding or sentencing and did not object to the facts stated
in the PSR. We find that Engle did not demonstrate plain error by the
district court on this sentencing issue. See Fed. R. Crim. P. 52.
2
In accordance with Anders, we have examined the entire record in
this case and find no reversible error. We therefore affirm Engle's
sentence. We deny counsel's motion to withdraw at this time. This
court requires that counsel inform his client in writing of his right to
petition the Supreme Court of the United States for further review. If
the client requests that a petition be filed, but counsel believes that
such a petition would be frivolous, then counsel may move in this
court for leave to withdraw from representation. See 4th Cir. R. 46(d).
Counsel's motion must state that a copy thereof was served on the cli-
ent. See id. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
3
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26 U.S. 250 (____)
1 Pet. 250
WILLIAM KONIG, WHO IS AN ALIEN, PLAINTIFF BELOW,
vs.
WILLIAM BAYARD, WILLIAM BAYARD, JR. ROBERT BAYARD, AND JACOB LE ROY, CITIZENS OF THE STATE OF NEW-YORK.
Supreme Court of United States.
Argued by Mr. Webster, and Mr. Ogden Hoffman, for the plaintiff, and by Mr. D.B. Ogden, and Mr. Oakley, for the defendants.
For the plaintiff.
*261 Mr. Chief Justice MARSHALL delivered the opinion of the Court:
This suit was brought in the Court of the United States, for the second Circuit and district of New-York, on a bill of exchange, drawn by John C. Delprat, of Baltimore, on Messrs. N. & J. & R. Van Staphorst, of Amsterdam, in favour of Le Roy, Bayard & Co. of New-York, and endorsed by them. The bill was regularly presented and protested, after which it was accepted and paid by the plaintiff, for the honour of the defendants. The jury found a verdict for the plaintiff, subject to the opinion of the Court, on a case stated by the parties. The Judges of the Circuit Court were divided in opinion, on the following points:
1. Whether the letters offered in evidence by the defendants, and objected to, ought to have been admitted.
2. Whether the plaintiff had a right, under the circumstances, to accept and pay the bill in question, under protest, for the honour of the defendants; and is entitled to recover the amount, with charges and interest.
The first question is understood to be waived. It is a question which was decided by the Court, at the trial, and could not arise after verdict, unless a motion had been made for a new trial.
The second requires an examination of the case stated by counsel. The bill was transmitted by Le Roy, Bayard & Co. to Messrs. Rougemont & Bebrings, of London, to have it presented for acceptance, who enclosed it to the plaintiff, in a letter, from which the following is an extract: "We beg you to have the enclosed accepted, 1st, of fl. 21,500, 60 days, on N. & J. & R. Van Staphorst, and hold the same to the disposal of 2d, 3d, and 4th. You will oblige me by mentioning the day of acceptance, and in case of refusal, you will have the bill protested."
The plaintiff gave immediate notice of the dishonour of the bill, and of their intervention, for the honour of the defendants.
Messrs. N. & J. & R. Van Staphorst addressed a letter to the defendants, dated the 26th of November, 1822, giving notice that the bill was dishonoured; the drawer having no right *262 to draw, and that they were advised by counsel not to interpose, in their own names, for the honour of the defendants. The letter adds, "In this predicament, we applied to our friends, William Konig & Co. who had the said bill in hand, informed them of the whole case, and requested these gentlemen, under our guarantee, to intervene on behalf of your signature, with acceptance and payment of the above bill; which favour these gentlemen have not refused to us; so that, without our prejudice, and completely without yours, we have duly protected your interest."
The defendants also gave in evidence, a letter from the plaintiff, stating that he had intervened, at the request of N. & J. & R. Van Staphorst, and under their guarantee; but that they required him to proceed against the defendants, as preliminary to the performance of that guarantee.
It was admitted that the bill was drawn by J.C. Delprat, on his own account, and not on any shipment for a debt due from him to the defendants, for advances previously made to him; and that he had given to the defendants an order on N. & J. & R. Van Staphorst, for all balances due from them to him.
It is not alleged that the drawees had any funds of the drawer in their hands.
The plaintiff in this case must be considered as the agent of N. & J. & R. Van Staphorst, and as having paid the bill at their instance. All parties concur in stating this fact. The Van Staphorsts adopted this circuitous course, instead of interposing directly in their own names, under the advice of counsel. They however immediately stated the transaction in its genuine colours, to the defendants. It is impossible to doubt, that a person may thus intervene, through an agent, if it be his will to do so. The suspicion which might be excited by proceeding, unnecessarily, in this circuitous manner, cannot affect a transaction, which was immediately communicated, with all its circumstances, to the persons in whose behalf the intervention had been made; unless those persons were exposed to some inconvenience, to which they would not have been exposed, had the interposition been direct. This is not the case in the present instance, since it cannot be doubted that the defendants might have availed themselves of every defence in this action, of which they could have availed themselves, had N. & J. & R. Van Staphorst been plaintiffs. The case shows plainly, that the bill was not drawn on funds, and that the drawees were not bound to accept or pay it. No reason, therefore, can be assigned, why the person who has made himself the holder of the bill, by accepting and paying it under protest, should not recover its amount from the drawer and endorsers.
*263 This cause came on to be heard, on a certificate of division of opinion of the Judges of the Circuit Court of the United States, for the southern district of New-York, and on the points on which the said Judges were divided in opinion, and was argued by counsel, on consideration whereof, This Court is of opinion, that the plaintiff had a right, under the circumstances, to accept and pay the bill in question, under protest, for the honour of the defendants, and is entitled to recover the amount, with charges and interest; which is ordered to be certified to the said Circuit Court.
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72 Ill.2d 560 (1978)
382 N.E.2d 239
DOROTHY HAYES, Appellant,
v.
LOWELL RUSSELL ALSBURG et al., Appellees.
No. 50108.
Supreme Court of Illinois.
Opinion filed September 19, 1978.
Rehearing denied December 1, 1978.
*561 Jerome Mirza & Associates, Ltd., of Bloomington, for appellant.
John R. Luedtke, of Bloomington, for appellee Lowell Russell Alsburg.
T.G. Kanppenberger, Jr., of Champaign, for appellee Sidney M. Vickers.
Livingston, Barger, Brandt, Slater & Schroeder, of Bloomington (William C. Wetzel, of counsel), for appellee Frank E. Enyart.
*562 Costigan & Wollrab, of Bloomington, for appellee Terry L. Hart.
Judgment affirmed.
MR. CHIEF JUSTICE WARD delivered the opinion of the court:
The plaintiff, Dorothy Hayes, brought an action for personal injuries in the circuit court of McLean County against the drivers of four cars involved in a rear-end chain collision, which she alleged had occurred as the result of negligence on the part of one or more of the defendants, Lowell Alsburg, Sidney Vickers, Frank Enyart, and Terry Hart. A jury returned verdicts for all four defendants, and the appellate court, with one justice dissenting, affirmed (52 Ill. App.3d 355). We granted the plaintiff's petition for leave to appeal (65 Ill.2d R. 315).
There had been an earlier jury trial, at which the court directed a verdict for the plaintiff on the issue of whether she had been guilty of contributory negligence. That jury had returned verdicts in favor of the four defendants, but the trial judge allowed the plaintiff's motion for a new trial. In the second trial, which was conducted before a different judge, the plaintiff also made a motion for a directed verdict on the issue of contributory negligence, as well as a motion for a directed verdict that one or more of the defendants had been guilty of negligence as a matter of law. The motions were denied. The jury returned verdicts in favor of the defendants, and the plaintiff's motions for a new trial and judgment n.o.v. were denied.
The four autos involved were traveling in the southbound passing lane of Route 66 near Shirley, at 1:30 a.m. on August 30, 1969. Route 66 at that point was a four-lane divided highway. The posted speed limit was 70 miles per hour. It was clear and dark and there was heavy automobile and truck traffic. There was no lighting of any kind in the vicinity of the collisions. Autos 1, 2, 3, and 4 were driven by the defendants Alsburg, Vickers, Enyart, *563 and Hart respectively. The plaintiff was asleep in the rear seat of auto 3 (Enyart's). She and the other three occupants of auto 3 were returning from a vacation in Canada and had been traveling all day.
Alsburg, the driver of auto 1, testified that he had observed a sign indicating that a crossover was ahead. (A crossover is a break in the highway that allows cars to make a U-turn and join traffic proceeding in the opposite direction.) He turned on his turn signal and was slowing down preparatory to beginning a U-turn when, he said, his car was struck from the rear by auto 2. Alsburg stated that, remarkably, it was pushed several hundred feet south of, or beyond, the crossover. He had not seen any headlights approaching from the rear until seconds before the impact. Two passengers from his auto gave similar testimony.
The driver of auto 2, Vickers, testified that he had been traveling in the passing lane at 60 to 65 miles per hour when he observed the brake lights of auto 1, which he said was stopped 500 feet ahead to the south of the crossover. He saw no cars approaching from the rear as he brought his auto to a halt one car length behind auto 1. He testified that his tail lights were in operating order at that time. Moments later, his automobile was struck from the rear by auto 3, and slammed into auto 1, knocking it 100 feet forward. Almost immediately his car was hit a second time, but the second impact was much less severe. The four passengers in auto 2 testified to the same effect as Vickers.
The testimony of Enyart, the driver of auto 3, in which the plaintiff was riding, seemed in defiance of physical laws. He testified that he had switched into the passing lane approximately 150 feet from what turned out to be the point of impact, and was proceeding at 60 to 70 miles per hour. He observed auto 2, stopped in his lane with no lights, as he came within 80 feet of it. He *564 gradually applied his brakes, he said, and slowed to 3 to 5 miles per hour within 6 feet of auto 2, when he was struck once from the rear by auto 4. The impact of that collision caused his car to strike the rear of auto 2. He said his car struck the other only once, contradicting the testimony of Vickers, who said his auto was struck twice by auto 3. He testified that he would have been able to have stopped his car without striking auto 2 had he not been struck from the rear. The plaintiff's adult daughter, also a passenger in auto 3, gave substantially the same testimony.
The driver of auto 4, Hart, who was traveling alone, also gave testimony which seemed extraordinary. He said that he moved into the passing lane at 70 miles per hour moments before the collision. He said that he had noticed auto 3 pass him at a greater speed than his own before he switched lanes. He stated that he was 6 to 8 car lengths from auto 3 when he heard a crash. He put on his brakes immediately, but struck auto 3 once, as he was braking down to "below 50 miles per hour." He did not observe any stop lights on auto 3.
The investigating officer, Leonard Kelly, testified that there were no highway signs indicating the existence of a crossover, and that all the skidmarks and debris from the collisions were located south of the crossover. He estimated the approximate point where auto 1 was struck to be 75 feet south of the crossover, and he testified that the driver of auto 1 told him he had realized he was proceeding on the wrong highway, and that he had intended to make a U-turn at the crossover but had "missed" it. The officer's accident report does not indicate such a statement was given by auto 1's driver; it does, however, indicate violation by auto 1's driver for improper turning, and speeding violations by the drivers of autos 2, 3 and 4.
The plaintiff testified simply, so far as the collisions were concerned, that she was asleep in the back seat, and *565 did not remember how long she had slept.
The questions we must determine are whether the trial court should have directed a verdict that the sleeping plaintiff was not contributorially negligent as a matter of law, and also whether the plaintiff was entitled to a directed verdict that one or more of the defendants were negligent as a matter of law.
This court has not considered the question, but it has been held that the circumstance alone that an automobile passenger is sleeping at the time of a collision is not sufficient to withdraw the question of his contributory negligence from the jury. Rather, this circumstance should be considered along with all other relevant ones by the jury in deciding whether there was contributory negligence. (Aurora National Bank v. Galauner (1967), 81 Ill. App.2d 132, 135; Dursch v. Fair (1965), 61 Ill. App.2d 273, 285; Thompson v. Riemer (1936), 283 Ill. App. 371, 376.) It has been held that a defendant was not entitled to a directed verdict that the plaintiff was contributorially negligent on the sole ground that the plaintiff was asleep (Ramirez v. Deters (1976), 41 Ill. App.3d 935; Dursch v. Fair (1965), 61 Ill. App.2d 273; Thompson v. Riemer (1936), 283 Ill. App. 371; Smith v. Courtney (1935), 281 Ill. App. 530); similarly it has been held that it was error to grant a plaintiff a new trial on the ground that his sleeping amounted to freedom from contributory wilful and wanton misconduct as a matter of law (Aurora National Bank v. Galauner (1967), 81 Ill. App.2d 132). See generally W. Prosser, Torts sec. 65, at 420 (4th ed. 1971); 5 D. Blashfield, Automobile Law and Practice sec. 215.23 (3d ed. 1966); Comment, 44 Iowa L. Rev. 622 (1959); 17 Minn. L. Rev. 222 (1933); see also 2 F. Harper & F. James, Torts sec. 16.7, at 921-22 (1956).
Nevertheless, the plaintiff argues that under the particular circumstances of this collision her motion for a directed verdict on the issue of her contributory negligence *566 should have been granted. She contends that there was nothing she could have seen or done to avoid the accident had she remained awake and kept a lookout, and that the courts have frequently deplored "backseat driving." The standard governing the direction of verdicts was stated by this court in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510: "In our judgment verdicts ought to be directed and judgments n.o. | {
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IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 43801
STATE OF IDAHO, ) 2016 Unpublished Opinion No. 574
)
Plaintiff-Respondent, ) Filed: June 17, 2016
)
v. ) Stephen W. Kenyon, Clerk
)
RYAN EVERETT LANGFORD, ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
Defendant-Appellant. ) BE CITED AS AUTHORITY
)
Appeal from the District Court of the First Judicial District, State of Idaho,
Kootenai County. Hon. Richard S. Christensen, District Judge.
Order denying Idaho Criminal Rule 35 motion, affirmed.
Sara B. Thomas, State Appellate Public Defender; Elizabeth A. Allred, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
General, Boise, for respondent.
________________________________________________
Before GUTIERREZ, Judge; GRATTON, Judge;
and HUSKEY, Judge
________________________________________________
PER CURIAM
Ryan Everett Langford pleaded guilty to two counts of rape, Idaho Code § 18-6101(a),
and entered an Alford1 plea to one count of sexual abuse of a child under sixteen years of age,
I.C. § 18-1506. The district court imposed two unified twelve-year sentences, with four years
determinate, for the rape charges, and a unified seven-year sentence, with four years determinate,
for the sexual abuse of a child under sixteen years of age charge. All sentences were ordered to
run concurrently. Langford filed an Idaho Criminal Rule 35 motion, which the district court
denied. Langford appeals.
1
See North Carolina v. Alford, 400 U.S. 25 (1970).
1
A motion for reduction of sentence under I.C.R. 35 is essentially a plea for leniency,
addressed to the sound discretion of the court. State v. Knighton, 143 Idaho 318, 319, 144 P.3d
23, 24 (2006); State v. Allbee, 115 Idaho 845, 846, 771 P.2d 66, 67 (Ct. App. 1989). In
presenting an I.C.R. 35 motion, the defendant must show that the sentence is excessive in light of
new or additional information subsequently provided to the district court in support of the
motion. State v. Huffman, 144 Idaho 201, 203, 159 P.3d 838, 840 (2007). Upon review of the
record, including any new information submitted with Langford’s I.C.R. 35 motion, we conclude
no abuse of discretion has been shown. Therefore, the district court’s order denying Langford’s
I.C.R. 35 motion is affirmed.
2
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938 N.E.2d 865 (2010)
LITTLEFIELD
v.
STATE.
No. 49A02-1003-CR-266.
Court of Appeals of Indiana.
December 1, 2010.
ROBB, J.
Disposition of Case by Unpublished Memorandum Decision Affirmed.
FRIEDLANDER, J., concurs.
BAILEY, J., concurs.
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275 Cal.App.2d 835 (1969)
MAXWELL L. RUBIN, Plaintiff,
v.
BUDDY R. BARASCH, Defendant and Appellant; SHIRLEY LEE BARASCH, Third Party Claimant and Respondent.
Civ. No. 33782.
California Court of Appeals. Second Dist., Div. Two.
Aug. 26, 1969.
Haskell H. Grodberg for Defendant and Appellant.
Ryan & Traxler and Sidney Traxler for Third Party Claimant and Respondent.
ROTH, P. J.
In July 1967, Maxwell L. Rubin (Rubin) sued Buddy R. Barasch (Buddy) in one cause of action for $50,000, plus attorney's fees and interest on Buddy's promissory *836 note and in a second cause of action, Shirley Lee Barasch (Shirley) and other defendants. Shirley and the defendants other than Buddy were joined on the theory of conspiracy to conceal Buddy's assets. Rubin levied a writ of attachment on five bank accounts aggregating $33,694.33, in the names of Buddy and Shirley. Rubin dismissed against Shirley and all defendants other than Buddy and moved for summary judgment against Buddy. The motion was granted. Judgment was entered against Buddy for $56,702.54 and costs.
One month prior to the Rubin action, in June 1967, Buddy instituted an action for divorce against Shirley in which she cross-complained for divorce.
Shirley had, prior to the entry of the summary judgment in the Rubin action, filed a third party claim in the Rubin action to one half of the funds in the five attached accounts. Service of the third party claim was made on the levying officer and upon Rubin's attorney. Respective counsel for Shirley and Rubin stipulated that her claim could be "granted as prayed." The court then in the Rubin action entered a "Judgment Determining Title To Personal Property Subject To Third Party Claim" which, among other things, declared that one half of the attached funds was Shirley's separate property "free and clear of any claims of Plaintiff, Maxwell L. Rubin and defendant Buddy R. Barasch, or either of them ..." The third party judgment directed distribution of one half of the attached funds to Shirley and declared that Rubin's attachment or any writ of execution thereafter obtained by him would be valid only as to the remaining one half.
Buddy received no formal written notice of his wife's third party claim or of the hearing thereon and did not appear in the proceeding under Code of Civil Procedure section 689. After the entry of judgment in the 689 proceeding, Buddy moved for a new trial on his wife's claim or for reconsideration or modification of the third party judgment on the ground of lack of notice and on the further ground that the attached funds were community property and, as such, had been placed in issue in the divorce action. Buddy's motion was denied. This appeal is from the third party judgment and from the minute order denying Buddy's motion for a new trial. Shirley alone opposes the appeal.
The purpose of section 689, Code of Civil Procedure, is to give a quick and effectual remedy to third parties whose property has been levied on by mistake and to protect the *837 officer who makes such levy. (Constructora S.A. v. Shepherd, 112 F.Supp. 935, reversed on other grounds 220 F.2d 1). Section 689 requires the third party claimant to deliver a written claim only to the levying officer and the party in whose favor the writ of attachment runs is entitled to a determination of title to the attached funds. Under section 689, the third party claim "shall constitute the pleading of such third party claimant ... and it shall be deemed controverted by the plaintiff or other person in whose favor the writ runs." After a hearing on a third party claim, "the court shall give judgment determining the title to the property in question, which shall be conclusive as to the right of the plaintiff, or other person in whose favor the writ runs, to have said property levied upon, taken, or held, by the officer and to subject said property to payment or other satisfaction of his judgment." Section 689 further provides that "In such judgment the court may make all proper orders for the disposition of such property or the proceeds thereof."
Apparently the only parties required to the proceeding under section 689 are the third party claimant and the attaching or judgment creditor. (See American Fruit Growers, Inc. v. Jackson, 203 Cal. 748 [265 P. 926]; Watwood v. Steur, 89 Cal.App.2d 620, 631 [201 P.2d 460].) Nothing in that section required that notice be given to Buddy, the judgment debtor. However, if notice is required, under Schroeder v. City of New York, 371 U.S. 208 [9 L.Ed.2d 255, 83 S.Ct. 279, 89 A.L.R.2d 1398], and if the property is attached and executed upon was actually Buddy's and Rubin, by stipulated judgment or otherwise, released one half to Shirley as her separate property, Buddy had nothing to lose and much to gain. Buddy was not a party to the proceedings on the third party claim nor to the stipulated judgment, and consequently, the judgment does not bind him. In a subsequent proceeding between him and Rubin, Buddy may successfully prove that Rubin wrongfully gave away property belonging to Buddy that could have been applied to the Rubin debt.
Rubin stipulated to a judgment in the third party proceedings at his peril. There is nothing before us to indicate that Rubin has credited the judgment against Buddy for less than the full amount of the five bank accounts. Nor is the fact that the third party judgment awarded one half of the bank accounts to the wife as her separate property conclusive against Buddy in the divorce action between himself and his wife. In other words, the third party judgment is not res *838 judicata as between Buddy and his judgment creditor or as between Buddy and his wife. [fn. 1]
[1] However, even though section 689, Code of Civil Procedure, does not require notice of proceedings to Buddy, and a judgment flowing from proceedings for which he receives no notice and in which he does not participate cannot bind Buddy, it seems to us that he had a right to intervene in those proceedings especially when the intervention is in an action in which he is the defendant for the purpose of vacating that portion of the judgment which purported to run against him. (Estate of Baker, 170 Cal. 578, 584 [150 P. 989]; Elliott v. Superior Court, 144 Cal. 501, 509 [77 P. 1109, 103 Am.St.Rep. 102]; Cal. Civil Appellate Practice, 6.6, p. 210.) Buddy did intervene. He moved for a new trial on the third party claim and a reconsideration and modification of the judgment which ran against him. The motion was denied by minute order of the court. In our opinion, the motion should have been granted and the judgment modified insofar as it affected Buddy.
The minute order denying Buddy's motion for modification of the judgment on the third party claim is reversed.
The trial court is directed to eliminate from the judgment any reference to the adjudication of claims between Shirley and Buddy and to affirm as part of the judgment Shirley's third party claim, free and clear of the claims of Maxwell Rubin. As so modified, the judgment on the third party claim against Maxwell Rubin is affirmed.
Fleming, J., and Wright, J., concurred.
NOTES
[fn. 1] 1. From the brief filed on behalf of the wife, it appears that during the pendency of this appeal, an interlocutory decree of divorce was entered in the wife's favor and that all funds in her possession, including whatever money she retained from the third party judgment, were awarded to her. It further appears that the husband has appealed from the interlocutory decree of divorce. Thus, it appears that the issue of whether the judgment herein appealed from is effective as against Buddy, was actually raised by Buddy in the divorce action.
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682 F.2d 296
82-1 USTC P 9403
John A. GAMBLING and Sally Gambling, Petitioners-Appellants,v.COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
No. 989, Docket 82-4010.
United States Court of Appeals,Second Circuit.
Argued April 19, 1982.Decided May 27, 1982.
George Wailand, New York City (Walter C. Cliff, Richard Coll, Cahill, Gordon & Reindel, New York City, of counsel), for petitioners-appellants.
James F. Miller, Washington, D.C. (Michael L. Paup, Richard W. Perkins, Dept. of Justice, Washington, D.C., of counsel), for respondent-appellee.
Before WATERMAN, FRIENDLY and MESKILL, Circuit Judges.
MESKILL, Circuit Judge:
1
John A. and Sally Gambling ("Gambling") appeal from a decision of the United States Tax Court, Wilbur, J., upholding a determination by the Commissioner of Internal Revenue ("Commissioner") of a deficiency in Gambling's federal income tax for the calendar year 1973 in the amount of $50,508.17 plus accrued statutory interest. For the reasons set forth below, we affirm.BACKGROUND
2
On January 1, 1963, Gambling and radio station WOR, a division of RKO General Inc. ("RKO"), entered into an agreement (the "1963 agreement") "providing for the engagement by RKO of (Gambling's) services" as a radio announcer for the three year period commencing January 1, 1963 and ending December 31, 1965. The contract provided for the payment of deferred compensation to Gambling in the event that Gambling's contract share of revenues from his radio programs exceeded $125,000 per annum. Subparagraph 5(d) of this agreement provided that deferred compensation "shall be accrued or set aside and be paid by RKO to (Gambling) upon the terms and conditions" set forth in paragraph 6. Under subparagraph 6(a), RKO agreed to make payments of deferred compensation to Gambling at the rate of $2,000 per month beginning in January 1985. Subparagraph 6(b) provided, however, that-
3
In the event of the death or permanent disability of (Gambling) prior to December 31, 1984, or in the event of the discontinuance of the employment of (Gambling) by RKO upon the expiration or termination of the term of this agreement or any extension or renewal thereof prior to December 31, 1984, the monthly payments provided in subparagraph "(a)" above shall be made commencing on the first day of the month following such death, permanent disability or discontinuance of employment; in all other respects such payments shall be paid in the manner and to the extent provided in subparagraph "(a)" above.
4
By a letter agreement dated February 28, 1965 (the "1965 letter agreement") Gambling and RKO agreed to terminate the 1963 agreement "in all respects" except that subparagraphs 5(c) and (d) and paragraph 6 were to continue in "full force and effect until the accounting and payments contemplated thereby (were made)."1 The next day, RKO and John A. Gambling Enterprises, Inc. ("Enterprises"), a New York corporation which had elected Subchapter S status under the applicable provisions of the Internal Revenue Code, entered into a new contract (the "1965 agreement") whereby Enterprises agreed to furnish the services of Gambling to RKO for the period commencing March 1, 1965 and ending December 31, 1969. Although Enterprises was substituted for Gambling as a party to the 1965 agreement, Gambling continued to perform the same services he had performed under the 1963 agreement.
5
Pursuant to subparagraph 5(d) of the 1963 agreement, $70,777.52 in deferred compensation owed Gambling accrued. RKO, however, did not fund an account for Gambling's deferred compensation or set aside the funds owed Gambling. Gambling neither demanded nor received payment of compensation prior to 1973. However, in May 1973, Gambling asked RKO to pay him $23,000 of the deferred compensation. RKO agreed to pay Gambling the money if he signed a letter amendment to the 1963 agreement which stated, inter alia:
6
At (Gambling's) request, RKO is paying to (Gambling) upon the signing of this letter agreement, from the sums accrued or set aside and held by RKO as provided in subparagraph (d) of paragraph 5 and in paragraph 6 of the 1963 Agreement as amended by the 1965 Amendment ( (the 1965 letter agreement) ), the amount of Twenty-three Thousand Dollars ($23,000).
7
As herein amended, the 1963 Agreement as amended by the 1965 Amendment shall continue in full force and effect.
8
In response to Gambling's further oral request, RKO paid the $47,777.52 balance of Gambling's deferred compensation on July 26, 1973.
9
Gambling did not report the deferred compensation on his federal income tax returns for years prior to 1973. As an attachment to the 1973 return, Gambling reported the receipt of the $70,777.52 in deferred compensation, but he did not include it in his 1973 gross income, claiming that "(t)his (amount) was taxable in 1963, 1964 and 1965." Arguably, under section 6501(a) of the Internal Revenue Code, these years were closed to tax assessment. In a Notice of Deficiency dated June 23, 1978, the Commissioner rejected this position, increased Gambling's gross income by $70,777.52, and assessed a $50,508.17 deficiency against Gambling.2
10
On September 19, 1978, Gambling filed a petition for redetermination in the United States Tax Court. J.App. at 3. Gambling contended that in accordance with the terms of the 1963 agreement, he was entitled to receive the deferred compensation in 1965 through 1968 and that, therefore, he was in constructive receipt of the deferred compensation during that period. J.App. at 6, 8-9.
11
The tax court, 42 T.C.M. (CCH) 1372, 1376-77 (Oct. 7, 1981), upheld the Commissioner's deficiency determination, finding that Gambling had no contractual right to the deferred compensation prior to January 1985 because his employment by RKO was not discontinued. The tax court held in the alternative that even if Gambling were "contractually entitled to the deferred compensation payments beginning in 1965, it is clear that his right to such amounts in that year was not unrestricted so as to invoke the doctrine of constructive receipt." Id. at 1377.
DISCUSSION
12
"(I)ncome that is subject to a (taxpayer's) unfettered command and that he is free to enjoy at his own option may be taxed to him as his income, whether he sees fit to enjoy it or not." Corliss v. Bowers, 281 U.S. 376, 378, 50 S.Ct. 336, 74 L.Ed. 916 (1930). Thus, Treas.Reg. § 1.451-1(a) (1981), provides that an item of income is to be included in gross income in the year in which it is "actually or constructively received." Treas.Reg. § 1.451-2(a) (1981), provides in pertinent part:
13
Income although not actually reduced to a taxpayer's possession is constructively received by him in the taxable year during which it is credited to his account, set apart for him, or otherwise made available so that he may draw upon it at any time, or so that he could have drawn upon it during the taxable year if notice of intention to withdraw had been given. However, income is not constructively received if the taxpayer's control of its receipt is subject to substantial limitations or restrictions.
14
Gambling claims that he had a contractual right to receive the deferred compensation once his employment with RKO was discontinued and that he was in constructive receipt of the funds thereafter. He argues that the Commissioner stipulated that Gambling's employment was discontinued as of March 1, 1965 and that this stipulation is conclusive on this issue. Gambling maintains that the tax court erred in interpreting the 1963 agreement and in holding that he did not have a right to the deferred compensation in 1965.
15
We find no error in the tax court's interpretation of the 1963 agreement. As the court recognized, 42 T.C.M. (CCH) at 1376-77, the key to the issue of Gambling's contractual right to deferred compensation is subparagraph 6(b) of the 1963 agreement. That section provides for the early payment of Gambling's deferred compensation in the event of his death or disability. Additionally, the agreement provides for early payment upon the "discontinuance" of Gambling's employment with RKO and "the expiration or termination of the term of this agreement or any extension or renewal thereof prior to December 31, 1984." Because the 1963 agreement expired on December 31, 1965, Gambling's entitlement to deferred compensation beginning in 19663 turns on whether his employment was discontinued within the meaning of the 1963 agreement.
16
In construing the 1963 agreement, we are guided by the familiar principle of contract law that "when the terms of a written contract are clear and unambiguous, the intent of the parties must be found therein." N | {
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940 F.2d 665
UNPUBLISHED DISPOSITIONNOTICE: 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.Robert EDMUNDSON, Plaintiff-Appellant,v.CONTINENTAL PIPELINE COMPANY and Conoco, Incorporated,Defendants-Appellees.
No. 90-3089.
United States Court of Appeals, Seventh Circuit.
Submitted July 17, 1991.*Decided Aug. 8, 1991.
Before CUDAHY and COFFEY, Circuit Judges, and PELL, Senior Circuit Judge.
ORDER
1
Plaintiff Robert Edmundson brought suit in district court alleging racial discrimination under 42 U.S.C. Sec. 1981 and various state laws after he was discharged by his employer Continental Pipeline Co. (Continental). The district court dismissed the second amended complaint with prejudice. We affirm.
2
Edmundson was fired from his job by Continental in 1986 and subsequently filed suit for racial harassment and discharge. After discovery, Continental filed a motion for summary judgment. In its reply brief, Continental noted that the Supreme Court had recently decided Patterson v. McLean Credit Union, 491 U.S. 164 (1989), which limited actions under section 1981 to cases of discrimination in the making and enforcing of private contracts. The district court called for supplemental briefing on the effect of Patterson. After briefing, the district court granted summary judgment in favor of Continental, but gave Edmundson leave to file an amended complaint. He filed a four count amended complaint still alleging that Continental violated section 1981, but adding that Continental violated Edmundson's rights under Illinois public policy and breached implied terms and conditions of an employment contract. The district court granted Continental's motion to dismiss, but again granted Edmundson thirty days to file a second amended complaint. He changed a few words and filed the second amended complaint which the district court then dismissed with prejudice.
3
Initially Edmundson argues that Patterson should not apply to discriminatory discharge cases and should not apply retroactively to cases such as his which were pending when the Court decided Patterson. In McKnight v. General Motors Corp., 908 F.2d 104 (8th Cir.1990), this court held, along with eight other circuits, that under Patterson discharges, in addition to harassment, are no longer actionable under section 1981. Id. at 108-109. The only case to the contrary, Hicks v. Brown Group, Inc., 902 F.2d 630 (8th Cir.1990), has been vacated by the Supreme Court, 111 S.Ct. 1299 (1991) and overruled by the Eight Circuit sitting en banc. Taggart v. Jefferson County Child Support Enforcement Unit, No. 89-2429EA (8th Cir. June 6, 1991). We decline Edmundson's suggestion to overrule or restrict McKnight.
4
On appeal, Edmundson for the first time challenges the retroactive application of Patterson to his case. Before the district court, he attempted to distinguish Patterson while arguing that he had entered into a new contract each year (or perhaps each day), making Continental's failure to renew at the time of his discharge actionable. He never addressed whether Patterson should apply retroactively and such arguments raised for the first time on appeal are waived. Amplicon Leasing v. Coachmen Indus., Inc., 910 F.2d 468, 471 (7th Cir.1990).
5
Next, Edmundson argues that Continental has waived any claim that Patterson applies to this case. In fact, the record reveals that Continental raised Patterson at almost every juncture. The Supreme Court decided Patterson after Continental had filed for summary judgment on Edmundson's complaint. Continental raised the issue at its earliest opportunity--its reply brief. The district court ordered supplemental briefing on the issue and Continental complied, raising the issue a second time. After Edmundson filed his first amended complaint, Continental raised the issue a third time in its motion to dismiss, which the district court granted. Continental raised the issue for a fourth time in its motion to dismiss Edmundson's second amended complaint. This issue is not waived.
6
Finally, Edmundson argues that his pendent state law claim regarding retaliatory discharge for complaints at the work place regarding safety was improperly dismissed. In Count 2 of the complaint, Edmundson alleged that "[t]he public policy of the State of Illinois is that employees may make complaints about job conditions which are hazardous to themselves and others." He argues on appeal that he had a right to make complaints to the Illinois Department of Labor regarding violations of safety or health standards. The problem is that Edmundson never made such a complaint, nor does he reveal what safety or health concerns would have been included in such a complaint. Instead, his complaint to higher-ups at Continental took the form of a diatribe against a supervisor which he fashioned as a novella. "The common law doctrine that an employer may discharge an employee-at-will for any reason or for no reason is still the law in Illinois, except for when the discharge violates a clearly mandated public policy." Barr v. Kelso-Burnett Co., 106 Ill.2d 520, 525, 478 N.E.2d 1354, 1356 (1985). There is no precise definition of public policy. Palmateer v. International Harvester Co., 85 Ill.2d 124, 126, 421 N.E.2d 876, 878-79 (1981). We doubt that ad hominem attacks against an employer who failed to see the wisdom of a corporate marketing plan designed by someone from the pipe-fitting department is protected by Illinois public policy.
7
The decision of the district court granting Continental's motion for summary judgment is AFFIRMED.
*
This case was originally set for oral argument. The court, on its own motion, withdrew the case from the oral argument calendar. The court then notified the parties that it had tentatively concluded that oral argument would not be helpful to the court in this case. The notice provided that any party might file a "Statement as to Need of Oral Argument." See Fed.R.App.P. 34(a); Circuit Rule 34(f). No such statement having been filed, the appeal has been submitted on the briefs and record
| {
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NO. 07-05-0155-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
JUNE 13, 2005
______________________________
CHRISTOPHER WAYNE McCOY,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 174th DISTRICT COURT OF HARRIS COUNTY;
NO. 999635; HON. GEORGE H. GODWIN, PRESIDING
_______________________________
ABATEMENT AND REMAND
_______________________________
Before QUINN, C.J., REAVIS, J., and BOYD, S.J. (1)
Appellant Christopher Wayne McCoy appeals from a judgment convicting him of
aggravated sexual assault of a child. The reporter's record is due in this cause. An
extension of the applicable deadline was sought by the court reporter. The reporter, by
letter dated June 3, 2005, represented to us that she has not been contacted by anyone
to prepare a reporter's record in this case and she will not be filing a reporter's record.
Accordingly, we now abate this appeal and remand the cause to the 174th District
Court of Harris County (trial court) for further proceedings. Upon remand, the trial court
shall immediately cause notice of a hearing to be given and, thereafter, conduct a hearing
to determine the following:
1. whether appellant desires to prosecute the appeal;
2. whether appellant is indigent; and,
3. whether appellant is entitled to appointed counsel and a free appellate
record.
The trial court shall cause the hearing to be transcribed. So too shall it 1) execute findings
of fact and conclusions of law addressing the foregoing issues, 2) cause to be developed
a supplemental clerk's record containing the findings of fact and conclusions of law and all
orders it may issue as a result of its hearing on this matter, and 3) cause to be developed
a supplemental reporter's record transcribing the evidence and arguments presented at the
aforementioned hearing. Should it be determined that appellant wishes to prosecute the
appeal, is indigent, and is entitled to an appointed attorney but has none, then the trial court
shall appoint counsel, unless appellant knowingly and voluntarily waives counsel.
Furthermore, the name, address, and phone number of any counsel appointed by the trial
court to represent appellant shall be included in the supplemental record. The trial court
shall also file both supplemental records with the clerk of this court on or before July 11,
2005. Should further time be needed by the trial court to perform these tasks, then it must
be requested before July 11, 2005.
It is so ordered.
Per Curiam
Do not publish.
1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code
Ann. §75.002(a)(1) (Vernon Supp. 2004).
aware of the nature of the proceeding in which he was then
involved. Given this, the trial court found appellant competent to stand trial, accepted the
guilty pleas, found him guilty for the offenses charged and, once a punishment hearing was
concluded, levied sentence.
Issue One - Factual Sufficiency of the Evidence
In his first issue, appellant contends that the evidence presented to the court during
the plea hearing was factually insufficient to find him competent to stand trial. We overrule
the issue.
The standard by which we review the factual sufficiency of the evidence is well
established and fully discussed in Zuliani v. State, 97 S.W.3d 589, 593-95 (Tex. Crim. App.
2003) and King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000). We refer the
litigants to them for their discussion. (2)
Next, a person is incompetent to stand trial if he lacks 1) sufficient present ability to
consult with his lawyer with a reasonable degree of rational understanding or 2) a rational
and factual understanding of the proceedings against him. Tex. Code Crim. Proc. Ann.
art. 46.02 §1A(a) (Vernon Supp. 2004) (Emphasis added). Furthermore, one is presumed
competent unless proved incompetent by a preponderance of the evidence. Id. §1A(b).
Additionally, when an accused is found incompetent and sent to a mental health
facility, as appellant was here, the head of the facility must notify the trial court when "he
is of the opinion that the defendant has attained competency . . . ." Id. §5(f)(1). And, when
the accused is discharged, "a final report shall be filed with the court documenting the
applicable reason for the discharge . . . ." Id. §5(i). Moreover, the trial court
is authorized to make a determination based solely on the report with regard
to the defendant's competency to stand trial, unless the prosecuting attorney
or the defense counsel objects in writing or in open court to the findings of
the report within 15 days from the time the report is served on the parties.
Id. Finally, if the accused is found competent to stand trial, criminal proceedings against
him may be resumed. Id. §5(k). With this said, we turn to the record before us.
As previously mentioned, appellant was found incompetent and sent to a mental
health facility, i.e. Vernon. Thereafter, he was discharged and, in the ensuing report,
categorized as "competent to stand trial" by the chief psychiatrist at Vernon. So too was
he described, in the report, as 1) demonstrating "a factual and rational understanding of
the court personnel and proceedings," 2) having "an appreciation of the charges and legal
strategy" and "an awareness of the consequences and penalties if convicted," 3) having
"the capacity to disclose facts and testify relevantly," 4) having the ability "to assist his
attorney in preparing his defense" and to "conform his behavior to the acceptable decorum
of the court," 5) having "adequate memory, attention, intellectual functioning," 6) having the
"ability to engage in a logical and coherent discussion," 7) "functioning in the average range
of intelligence," and 8) demonstrating "adequate decision-making ability to select a
reasonable strategy on his case." The chief psychiatrist also stated in the report that
appellant "has been diagnosed with malingering and has a strong potential for
exaggerating symptoms which might include bizarre acting out behaviors . . . ." The
possibility that appellant "will become extremely desperate while in jail and exaggerate
symptoms in a desperate bid to appear mentally ill . . . to try and avoid the consequences
of the current charges," was further noted. Nothing of record indicates that either party
objected to this report. This is of import given that statute authorizes the trial court to
determine his competency solely from it. Tex. Code Crim. Proc. Ann. art. 46.02 §5(i)
(Vernon Supp. 2004). So, at the very least, it provides more than ample evidence to
support the trial court's finding of competency.
That the trial court may have voiced some disagreement with the allusion to
appellant "malingering" does not render the report bereft of weight or the finding of
competency factually insufficient. That aspect of the report was one of many observations
uttered therein. And, at no time did the trial court state that it disagreed with any other
observation in it, including those involving the accused's ability to engage in legal strategy,
demonstrate adequate decision-making ability, function within an average range of
intelligence, factually and rationally understand the criminal proceedings in which he was
involved, appreciate the charges and consequences if convicted, disclose facts and testify
relevantly, or conform his conduct and assist his attorney in preparing his defense. To this,
we also add the trial court's observations of appellant, his demeanor, and his answers to
the court's questions during the plea hearing. Indeed, the trial court expressly stated that
those observations influenced its decision. Consequently, we are unable to say that the
evidence of appellant's competency to stand trial at the time of the plea hearing was too
weak to support the trial court's finding or that the proof of his competency was against the
great weight and preponderance of the evidence.
Issue Two - Sua Sponte Hearing
In his second issue, appellant faults the trial court for failing to empanel another jury
to consider his competency as a result of his responses at the plea hearing. We overrule
the issue.
Whether the trial court erred in failing to empanel a jury depends upon whether it
abused its discretion. | {
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397 F.2d 289
GREAT AMERICAN INSURANCE COMPANYv.The UNITED STATES, and Bank of America National Trust and Savings Association, Third-Party Defendant.
No. 249-67.
United States Court of Claims.
June 14, 1968.
Edward Gallagher, Washington, D. C., attorney of record, for plaintiff.
Edward L. Metzler, Washington, D. C., with whom was Asst. Atty. Gen., Edwin L. Weisl, Jr., for defendant.
Edgar H. Brenner, Washington, D. C., for third party defendant, James E. Krier and Arnold & Porter, Washington, D. C., of counsel.
Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON and NICHOLS, Judges.
ON MOTION OF THIRD PARTY BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION TO DISMISS OR STAY PROCEEDINGS
COWEN, Chief Judge.
1
This case presents a question of this court's jurisdiction over a third party notified under Section 14(b) of the Contract Settlement Act of 1944, 41 U.S.C. § 114(b) (1964)1 to appear to assert and defend its interest in a suit in this court. The issue is before us on the motion of the third party, Bank of America National Trust and Savings Association, to dismiss or stay proceedings because of lack of jurisdiction of the third party. The facts essential to the disposition of the motion are not in dispute.
2
In January 1956, a joint venture known as "James L. Wennermark d/b/a Wennermark Co. & Emmett J. Harris" contracted with the Department of the Interior for construction work on a levee extension. Plaintiff was the Miller Act (40 U.S.C. § 270a, et seq. (1964)) surety for the joint venture, and when it defaulted on the contract on July 29, 1965, plaintiff effected the completion of the contract work as required by its bond.
3
The present dispute centers around a check for $52,000.74 issued by defendant on June 7, 1965, payable to the order of the joint venture in the name "Wennermark Co. and Emmett J. Harris," in partial payment of work performed on the contract. The check was endorsed and negotiated at the Highland Branch of the Bank of America, San Bernardino, California. Precisely who endorsed the check, who negotiated it at the bank, and what authority he had to do so, are among the key factual issues which are to be decided later and are not now before us.
4
On June 17, 1965, at the request of the joint venture and the attorney for plaintiff, the Treasurer of the United States ordered payment stopped on the check. When the Bank forwarded the check for payment, it was returned with a notation that payment had been stopped at the request of the joint venture. On July 7, 1965, the joint venture filed a claim against defendant for the proceeds of the check. On August 3, 1965, subsequent to the default of the joint venture on its contract, Emmett J. Harris executed an assignment of his interest in the proceeds of the check to plaintiff. On April 12, 1967, James L. Wennermark, on behalf of Wennermark Company, and Emmett J. Harris assigned to plaintiff all right, title and interest in any claims they might have against E. F. Wennermark and his wife arising out of the check of $52,000.74, which check, according to the assignment, had been wrongfully and without authority converted and the proceeds disposed of by E. F. Wennermark and his wife.
5
On October 22, 1965, Bank of America wrote to the Treasurer of the United States requesting that payment of the proceeds of the check be made to it. The Treasury Department replied that the check would not be paid until a court of competent jurisdiction made a determination "establishing the party entitled."
6
Plaintiff sued the defendant in this court, alleging that as the contractor's surety, it had completed the contract and paid the creditors of the joint venture pursuant to the surety's performance and payment bond at a total expense of $91,319.16. Plaintiff further alleges that it thereby acquired equitable rights to the $52,000.74 held by the defendant as the unpaid balance due on the contract, and that plaintiff's rights to the fund are superior to the rights of any other party. Having learned that the Bank claims the same contract balance which plaintiff sues to recover, plaintiff had a notice served on the Bank (pursuant to 41 U.S.C. § 114(b)) to appear and defend its interest in the subject matter of the suit. Contending that this court lacks jurisdiction over it, the Bank then filed a motion for an order quashing the third party notice served on it and dismissing it from these proceedings without prejudice or, in the alternative, for a stay of this action, pending the determination of a suit between plaintiff and the Bank in a federal or state court in California. We hold that our jurisdiction extends to the claim asserted by plaintiff against defendant and, further, that we have jurisdiction to determine whether the plaintiff or the Bank is entitled to recover the contract balance now held by the defendant.
7
* With much vigor and some ingenuity, the Bank argues that this case is beyond our jurisdiction because it is, in essence, a commercial law dispute between plaintiff and the Bank over the proceeds of the check and that any judgment in favor of the plaintiff on its claim will, in reality, be a judgment against the Bank. We think it is the Bank which has ignored the realities. Plaintiff's petition plainly states a cause of action for the recovery of a contract balance now held by the Government in a stakeholder capacity. Plaintiff alleges that as surety it has discharged the obligations of its payment and performance bonds, after default by the contractor, and has a superior right to the balance due on the contract. Beyond question, such a claim is within the general jurisdiction conferred on this court by 28 U.S.C. § 1491. Royal Indem. Co. v. United States, 93 F.Supp. 891, 117 Ct.Cl. 736 (1950); Hadden v. United States, 132 F.Supp. 202, 132 Ct.Cl. 529 (1955). It is undisputed that the defendant now holds the sum of $52,000.74 as the unpaid balance due on the contract and that, in view of the conflicting claims to the money, defendant has refused to pay anyone until a court of competent jurisdiction decides the issue. Furthermore, in its response to the third party's motion, defendant asserts that this court has exclusive jurisdiction to render judgment against the United States to recover the money involved in the instant action. The Bank has attempted to collect the stake now held by the defendant and would be the last to say that it has no interest in the fund plaintiff seeks to recover. There are therefore present in this action all of the elements that are required for the exercise by this court of its jurisdiction under Section 114(b).
8
As this court pointed out in Central Nat'l Bank of Richmond, Va. v. United States, 84 F.Supp. 654, 655, 114 Ct.Cl. 390, 392 (1949), the language of Section 114(b) is very broad and provides that the court on motion of either party "may summon any and all persons with legal capacity to be sued to appear as a party or parties in any suit or proceeding of any nature whatsoever * * * to assert and defend their interests, if any." The purpose of this part of the statute is "to permit the parties to bring in other persons who might, if not foreclosed, later show that they owned or had an interest in the claim sued on, or whose possible right might, if not foreclosed, be used as a defense by the United States to defeat the principal claimant." Richfield Oil Corp. v. United States, 151 F.Supp. 333, 335, 138 Ct.Cl. 520, 522-523 (1957). Manifestly, the law was designed to cover such an interest as the Bank claims in the money held by defendant. Since the enactment of Section 114(b), this court has, without a single dissent in any case, uniformly held that, where the principal suit is on a claim to recover a contract balance held by the Government as a stakeholder, the court has jurisdiction to determine whether the plaintiff or a third party, who claims an interest in the stake, is entitled to recover the money from the United States.2 See Royal Indem. Co. v. United States, 371 F.2d 462, 178 Ct.Cl. 46, cert. den. Jersey State Bank v. Royal Indem. Co., 389 U.S. 833, 88 S.Ct. 33, 19 L.Ed.2d 93 (1967) and cases cited therein.
II
9
The Bank also contends that even if plaintiff has a cause of action cognizable by this court, the exercise of this court's jurisdiction over the Bank denies its seventh amendment right to a jury trial. In Maryland Cas. Co. v. United States, 141 F.Supp. 900, 135 Ct. Cl. 428 (1956), a third party bank to whom the Government had paid the proceeds due under the contract upon which the suit was brought, was summoned to answer the Government's contingent claim against it. The summons was issued pursuant to another provision of Section 114(b), which has no application to the case before us. The third party assailed our | {
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259 B.R. 141 (2001)
In re Quentin B. STENZEL, Debtor.
Peoples' State Bank of Wells, Appellant,
v.
Quentin B. Stenzel, Appellee.
No. 00-6097.
United States Bankruptcy Appellate Panel of the Eighth Circuit.
Submitted January 24, 2001.
Filed March 2, 2001.
*142 Mark C. Halverson, Stephen J. Behm, Halverson Law Office, Mankato, MN, for appellant.
Brian Francis Leonard, Leonard & O'Brien, Minneapolis, MN, James J. Dailey, Mankato, MN, for appellee.
Before KOGER, Chief Judge, SCHERMER and SCOTT, Bankruptcy Judges.
SCHERMER, Bankruptcy Judge.
Peoples' State Bank of Wells, (the "Bank") appeals the bankruptcy court order allowing Quentin B. Stenzel (the "Debtor") to claim his mother's, Elsie M. Stenzel, (the "Mother") house and the acreage on which the house is situated (collectively the "Property") as his homestead. We have jurisdiction over this appeal from the final order of the bankruptcy court, See 28 U.S.C. § 158(b). For the reasons set forth below, we reverse.
ISSUE
The issue on appeal is whether the Debtor "occupied" the Property, entitling him to exempt it as his homestead pursuant to M.S.A. §§ 501.01 and 510.02, when he did not reside on the Property and did not farm the land, but raised hogs in a barn prior to filing for bankruptcy relief. We conclude that the Debtor did not "occupy" the Property and therefore cannot claim it as his exempt homestead pursuant to Minnesota law.
BACKGROUND
For thirty-seven years, the Debtor and his wife (the "Wife") have lived on a five acre parcel they own in the City of Wells in rural Freeborn County, Minnesota (the "Domiciled Parcel"). They originally received their interest in the Domiciled Parcel from the Debtor's grandparent. The Debtors claim of a homestead exemption in the Domiciled Parcel is not contested.
*143 The Mother has lived on the Property since she acquired it with her late husband sixty-two years ago. After owning the Property for fifty-one years, the Debtor's parents signed a warranty deed conveying a life estate to themselves and remainder interests to each of their three children. This deed was recorded four years later, and two years after the Debtor's father's death. A county highway separates the Property and the Domiciled Parcel. The Property consists of approximately 148 acres of tillable land, and a five to six acre building site which includes: a hog house; the Mother's house; a machine shed; a granary; two farrowing barns; a large barn; a corn crib; and a couple of storage houses.
For approximately twenty-three years, the Debtor farmed the tillable land on the Property with his father. The Debtor then farmed this land alone for an additional three years. After the Debtor ceased fanning the land on the Property, the Mother rented the tillable land to J.L. Miller, a third-party, for three years. For the next five years, the Mother rented the tillable land to Albert Schuster, another third-party. The Mother then rented the land again to J.L. Miller for three years. On occasion, the Debtor worked for J.L. Miller, farming the land.
The Debtor has engaged in raising hogs on the Property since he was nine or ten years of age. His hog operation involved use of the Domiciled Parcel and the barns on the Property. The Debtor used the barns with the Mother's permission. He paid for water, supplies, electricity and paid insurance for the hogs on the Property.
On September, 20, 1999, the Debtor filed for chapter 7 bankruptcy relief. Within the year preceding his filing date, the Debtor liquidated the balance of his live-stock. On the filing date, the Debtor was not engaged in any type of farming activity or hog operations on the Property. At the meeting of creditors, the Debtor testified that he did not have an interest in any real estate except for the Domiciled Parcel. He stated that his homestead was on the Domiciled Parcel and that his farming operation took place mostly on the Domiciled Parcel with some operations on the Property. The Debtor received a discharge two months after his bankruptcy filing.
After the discharge, the Bank and the trustee (the "Trustee") notified the Debtor of their discovery of the Debtor's one-third remainder interest in the Property. The Debtor then amended his bankruptcy schedules and claimed homestead exemptions for both the Domiciled Parcel and the Property. The Bank and the Trustee objected to the Debtor's claimed exemptions.
The Debtor filed a response stating that he intended to engage in hog operations and farm the tillable land on the Property in the future. In his deposition of July 2000, the Debtor stated that he was cleaning and disinfecting the hog barns on the Property at the time of filing. Since the deposition, the Debtor has been conducting the hog operation on the Property and not on the Domiciled Parcel. The Debtor claimed that he thought that he would continue to farm the Property after his father's death and that he would inherit the Property with his two sisters. In her deposition, the Mother stated that she thought that the Debtor would go back to farming the land on the Property and that her three children would share full ownership, of the Property when she passed away.
All parties submitted motion for summary judgment. In affidavits of the Debtor and the Mother submitted in support of the Debtor's motion for summary judgment, each stated that the Debtor and the Wife routinely assist the Mother in cleaning and maintaining her house and getting her to doctor's appointments.
The bankruptcy court found that the Debtor "owned" the Property under the meaning of that term in M.S.A. § 510.01. Further, the court held that the Debtor established that the Domiciled Parcel and *144 the Property were contiguous under Minnesota Law and therefore constituted a single unit for purposes of the homestead exemption. The court then held that occupancy was a fact issue and that the Debtor met his burden of proving occupancy because he had a longstanding presence on the Property. According to the court, whether the Debtor had a right to possession that was legally enforceable against a life tenant was irrelevant because, as a matter of fact, the Debtor used the Property. All 155 acres of the Property were exempt as the Debtor's homestead pursuant to M.S.A. §§ 510.01 and 510.02.[1]
STANDARD OF REVIEW
The facts are not in dispute. This Court reviews de novo the bankruptcy court's legal conclusions, and reviews for clear error its findings of fact. Fed. R.Bankr.P. 8013. Martin v. Cox (In re Martin), 140 F.3d 806, 807 (8th Cir.1998); Gourley v. Usery (In re Usery), 123 F.3d 1089, 1093 (8th Cir.1997). A federal court is bound by decisions of the highest state court when deciding a question of substantive law. Bass v. General Motors Corp., 150 F.3d 842, 847 (8th Cir.1998). The Bankruptcy Appellate Panel reviews the bankruptcy court's determinations of state law de novo. In re Simmonds, 240 B.R. 897 (8th Cir. BAP 1999).
DISCUSSION
According to 11 U.S.C. § 522(b)(2)(A), a debtor may exempt from the bankruptcy estate any property which is exempt under applicable state or local law on the date of filing of the petition. The party objecting to the debtor's claimed exemption has the burden of proving that the debtor is not entitled to the exemption. In re Curry, 160 B.R. 813, 817 (Bankr.D.Minn.1993). Although the homestead provision is to be liberally construed, the interpretation is not to be strained. Ross v. Simser, 193 Minn. 407, 258 N.W. 582, 583 (1935); Vickery v. First Bank of LaCrosse, 368 N.W.2d 758, 762 (Minn.Ct. App.1985).
Section 510.01 of the Minnesota Revised Statutes defines "homestead" for purposes of the Minnesota homestead exemption. That section states:
The house owned and occupied by the debtor as the debtor's dwelling place, together with land upon which it is situated to the amount of area and value hereinafter limited and defined shall constitute the homestead of such debtor and the debtor's family, and be exempt from seizure or sale under legal process on account of any debt not lawfully charged thereon in writing.
A debtor must "own and occupy" a home upon the land to qualify for a homestead exemption under M.S.A. § 510.01. A homestead is defined as a person's legal home and dwelling place. Clark v. Dewey, 71 Minn. 108, 73 N.W. 639 (1898). As long as the debtor actually resides on the parcel, a homestead may be used for purposes other than as a dwelling. In re Lockey's Estate, 112 Minn. 512, 128 N.W. 833, 834 (1910). The term "occupancy" in the homestead exemption statute refers to the debtor's actual occupancy. Quehl v. Peterson, 47 Minn. 13, 49 N.W. 390, 391 (1891). To fulfill the actual occupancy requirement, a debtor does not need to have | {
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In The
Court of Appeals
For The
First District of Texas
____________
NO. 01-07-00890-CR
____________
COURTNEY BARNARD CALDWELL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 351st District Court
Harris County, Texas
Trial Court Cause No. 1104136
MEMORANDUM OPINION
A jury found appellant, Courtney Barnard Caldwell, guilty of aggravated
robbery and assessed punishment at 46 years in prison. See Tex. Pen. Code Ann.
§ 29.02(2) (Vernon 2003). In a single point of error, appellant contends that the
trial court erred by denying his motion to suppress and thereby permitting the
complaining witness to identify appellant at trial because the photo array in which
the witness identified appellant before trial was impermissibly suggestive. We
affirm.
Background
Lawrence Stephens was the victim of a car-jacking by two black males on
February 7, 2007. Just before dark, as Stephens drove his car, a black Lexus with
luxury rims, into an apartment complex, a tall, dark man with braids approached
Stephens's vehicle and asked for a cigarette lighter. After reaching to retrieve his
car lighter, Stephens turned to face a long, black revolver about six inches from his
face. The gunman took Stephens's cell phone and demanded his car keys.
Stephens recognized the gunman from a tattoo parlor, but said nothing, got out of
the car, and surrendered the keys.
As Stephens was handing over his car keys, appellant came up behind
Stephens. Appellant had pulled his jacket up, but was only six feet behind
Stephens. Stephens saw appellant's face, however, though only briefly, and stated
at trial that he recognized appellant from a club they had both frequented.
Appellant demanded money and the key to unlock the tire rims on Stephens's car,
and the gunman told Stephens to lie on the ground, face down. When the car
would not start, because Stephens had installed a kill switch, the gunman forced
Stephens to start the car. The gunman then drove away in Stephens's car, and
appellant went to another vehicle and left the scene. Stephens contacted police and
described the assailants.
Police recovered Stephens's car the next day. It had been stripped and
abandoned, but police recovered appellant's fingerprint from the outside of
Stephens's car, and an officer constructed a photo array that contained appellant's
photo. Stephens identified appellant from the array on February 12, 2007, five
days after the robbery. Stephens signed the array, on which he circled the photo of
appellant. Appellant was arrested on February 16, 2007, when a vehicle in which
he was a passenger was stopped for a traffic offense .
Identification of Appellant
In his sole point of error, appellant contends that the trial court erred by
denying appellant's pretrial motion to suppress Stephens's identifying him before
trial from the photo array and thus permitting Stephens to identify appellant at trial
because the photo array was impermissibly suggestive, had tainted Stephens's
pretrial identification of appellant, and had substantially increased the likelihood
that Stephens would misidentify appellant at trial.
A. Standard of Review
A defendant who contends that an in-court identification is inadmissible
must prove by clear and convincing evidence that the in-court identification is
unreliable. Delk v. State, 855 S.W.2d 700, 706 (Tex. Crim. App. 1993). We apply
a two-step analysis on appeal. Id. We first determine whether the pretrial photo
display was impermissibly suggestive. Id. If we conclude that the pretrial photo
display was impermissibly suggestive, we then determine whether it gave rise to a
very substantial likelihood of irreparable misidentification, id., based on the factors
established in Neil v. Biggers, 409 U.S. 188, 199-200, 93 S. Ct. 375, 382 (1972).
See Ibarra v. State, 11 S.W.3d 189, 196 (Tex. Crim. App. 1999) (applying Biggers
factors). We will uphold the trial court's decision to admit the identification unless
the trial court clearly abused its discretion. Allridge v. State, 850 S.W.2d 471, 492
(Tex. Crim. App. 1991).
B. Whether the Pretrial Photo Display was Impermissibly Suggestive
Appellant contends that the pretrial photo display shown to Stephens was
impermissibly suggestive because only the photo of him, among those in the
display, showed an individual with a facial tattoo, specifically, a tear-shaped tattoo
beneath the right eye.
It is undisputed that appellant appeared at trial with a tear-shaped tattoo
beneath his right eye, but the record does not support appellant's contention that
the photo display shown to Stephens contained a photo of appellant with the tattoo.
State's Exhibit 17 confirms that photo display from which Stephens identified
appellant before trial did not include a photo of appellant with any type of facial
tattoo. (1)
In addition, the record establishes that the photo used in the array presented
to Stephens had been taken in November 2006, more than a year before the
aggravated robbery took place. The record further supports that appellant obtained
the tattoo after the aggravated robbery of Stephens. The police officer who
presented the photo array to Stephens on February 12, 2007 also interviewed
appellant shortly after he was arrested on February 16, 2007. As the officer
explained under cross-examination during the pretrial hearing on appellant's
motion to suppress, appellant's appearance during the interview differed from his
appearance in the earlier photo used in the array because appellant had a tattoo that
appeared "fresh . . . that day" and appeared to be "still wet, real dark." The officer
was able to make that determination based on his personal experience, having
obtained a tattoo himself.
We note further that there is no evidence of any conduct by a police officer
during the photo array presented to Stephens that was impermissibly suggestive.
See Ibarra, 11 S.W.3d at 196. The officer did not suggest that the array contained
a photo of the suspect and did not tell Stephens that he had to choose someone
from the display. Indeed, the page of instructions that accompanied the photo
array Stephens signed indicated the importance of clearing innocent individuals.
Likewise, nothing in the display distinguished appellant in any appreciable respect.
See Barley v. State, 906 S.W.2d 27, 33 (Tex. Crim. App. 1995). There was only
one array of photos shown to Stephens, and the individuals in the array had the
same skin tone, haircut, and facial features.
For these reasons, we hold that the photo array presented to Stephens, from
which he identified appellant before trial, was not impermissibly suggestive.
Accordingly, we need not assess whether there was any likelihood that Stephens's
pretrial identification of appellant tainted Stephens's trial testimony identifying
appellant.
We overrule appellant's sole point of error.
Conclusion
We affirm the judgment of the trial court.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Nuchia and Higley.
Do not publish. Tex. R. App. P. 47.2(b).
1. The record contains a photo array that depicts appellant with a tattoo, but that array
had been shown to a different witness, who did not testify until the punishment stage
of the trial.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-6670
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CARLOS JOHNSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Rebecca Beach Smith,
District Judge. (CR-02-3; CA-04-158-4)
Submitted: November 22, 2005 Decided: December 2, 2005
Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Carlos Johnson, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Carlos Johnson seeks to appeal the district court's
orders dismissing as untimely his 28 U.S.C. § 2255 (2000) motion
and denying his motion to alter or amend judgment. An appeal may
not be taken from the final order in a § 2255 proceeding unless a
circuit justice or judge issues a certificate of appealability. 28
U.S.C. § 2253(c)(1) (2000). A certificate of appealability will
not issue absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2) (2000). A prisoner
satisfies this standard by demonstrating that reasonable jurists
would find that his constitutional claims are debatable and that
any dispositive procedural rulings by the district court are also
debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336
(2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee,
252 F.3d 676, 683 (4th Cir. 2001). We have independently reviewed
the record and conclude that Johnson has not made the requisite
showing. Accordingly, we deny a certificate of appealability and
dismiss his appeal. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
DISMISSED
- 2 -
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FILED
NOT FOR PUBLICATION NOV 25 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JINGRU LIANG; WENQIAO XU, No. 13-73111
Petitioners, Agency Nos. A200-264-829
A200-264-830
v.
LORETTA E. LYNCH, Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 18, 2015**
Before: TASHIMA, OWENS, and FRIEDLAND, Circuit Judges.
Jingru Liang and Wenqiao Xu, natives and citizen of China, petition pro se
for review of the Board of Immigration Appeals’ order dismissing their appeal
from an immigration judge’s decision denying Liang’s application for asylum,
withholding of removal, and protection under the Convention Against Torture
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial
evidence the agency’s factual findings, Gu v. Gonzales, 454 F.3d 1014, 1018 (9th
Cir. 2006), and we deny the petition for review.
Substantial evidence supports the agency’s determination that, even if
credible, Liang’s experiences in China, considered cumulatively, did not rise to the
level of persecution. See id. at 1019-21. Substantial evidence also supports the
agency’s finding that Liang did not demonstrate a well-founded fear of future
persecution. See id. at 1022 (petitioner failed to present “compelling, objective
evidence demonstrating a well-founded fear of persecution”); Nagoulko v. INS, 333
F.3d 1012, 1018 (9th Cir. 2003) (possibility of persecution “too speculative”).
Thus, Liang’s asylum claim fails. See Nagoulko, 333 F.3d at 1018.
Because Liang failed to establish eligibility for asylum, her withholding of
removal claim necessarily fails. See Zehatye v. Gonzales, 453 F.3d 1182, 1190
(9th Cir. 2006).
Finally, substantial evidence supports the agency’s denial of Liang’s CAT
claim because she failed to establish it is more likely than not she would be
tortured by or the consent or acquiesce of the government if returned to China. See
Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008).
PETITION FOR REVIEW DENIED.
2 13-73111
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771 N.E.2d 619 (2002)
331 Ill. App.3d 77
264 Ill.Dec. 915
Martha RAMIREZ, Indiv. and as Parent, Next Friend, and Guardian of the Estate of Gamaliel Ramirez, a Minor, Deceased, Plaintiff-Appellee,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellant.
No. 2-01-0608.
Appellate Court of Illinois, Second District.
June 11, 2002.
*620 Anmarie C. Brandenburg, Mateer & Associates, Rockford, for State Farm Mutual Automobile Insurance Co.
Debra A. Delia, Oliver, Close, Worden, Winkler & Greenwald, Rockford, for Martha Ramirez.
Justice GROMETER delivered the opinion of the court:
Defendant, State Farm Mutual Automobile Insurance Company (State Farm), appeals from a summary judgment granted by the trial court in favor of plaintiff, Martha Ramirez, in this declaratory judgment action. Plaintiff brought the action individually and as parent, next friend, and guardian of the estate of her deceased minor son, Gamaliel Ramirez (Gamaliel), seeking a declaratory judgment that the uninsured motorist provisions in an automobile insurance policy that State Farm had issued to her covered the damages related to Gamaliel's injuries and death. Gamaliel's death resulted from gunshots fired from an uninsured vehicle at plaintiff's car while Gamaliel was driving plaintiff's car. For the reasons that follow, we conclude that the uninsured motorist provisions of plaintiff's policy did not provide coverage and reverse the summary judgment.
The material facts are not in dispute. Around midnight on November 1, 1997, Gamaliel was driving plaintiff's car in Rockford. Antonio Ramirez, the only passenger in the car, was sitting in the front passenger seat. Another car, driven by Jasim Mohamed Albaiaty, began to follow plaintiff's car. There were two passengers in Albaiaty's car, Ricardo "Ricky" Diaz and Rey Velarde. Gamaliel attempted to get away from Albaiaty's car. However, Albaiaty's car continued to follow plaintiff's car for about 40 blocks.
When Gamaliel slowed plaintiff's car for a railroad crossing, Albaiaty's car pulled next to the driver's side of plaintiff's car. Velarde, one of the passengers in Albaiaty's car, then fired about 10 or 11 gunshots at plaintiff's car. One of the gunshots hit Gamaliel in the left arm and passed into his chest. After Velarde fired the shots, Albaiaty's car briefly came into contact *621 with plaintiff's car. Albaiaty's car then sped away.
Shortly after being shot, Gamaliel passed out and was unable to maintain control of plaintiff's car. Plaintiff's car then left the road, struck some property near a building, and eventually hit a light pole.
Gamaliel was taken to a hospital where he received emergency treatment. Gamaliel died at the hospital. The cause of Gamaliel's death was the gunshot wound to the chest.
Albaiaty and Velarde were charged with the murder of Gamaliel. Albaiaty and Velarde each pleaded guilty to the offense. Diaz pleaded guilty to related minor offenses.
Plaintiff filed a claim with State Farm for the damages resulting from Gamaliel's injuries and death. Plaintiff sought coverage under the uninsured motorist provisions in an automobile insurance policy that State Farm had issued to plaintiff. The policy was in force on November 1, 1997.
State Farm subsequently determined that plaintiff was not entitled to coverage for the claimed damages under the uninsured motorist provisions in the policy and denied plaintiff's claim. State Farm also declined plaintiff's request to proceed to arbitration on the matter.
The uninsured motorist provisions in the policy stated, in pertinent part:
"We will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle. The bodily injury must be sustained by an insured and caused by accident arising out of the operation, maintenance or use of an uninsured motor vehicle." (Emphasis in original.)
Following State Farm's denial of her claim, plaintiff filed this action seeking a declaratory judgment that she was entitled to coverage for the claimed damages under the uninsured motorist provisions of the policy. The parties filed cross-motions for summary judgment. The trial court determined that the incident in question was an "accident" and that the incident "arose out of the use and operation of Albaiaty's uninsured vehicle. Based on these determinations, the trial court ruled that the uninsured motorist provisions in the policy provided coverage for plaintiff's claimed damages and granted plaintiff's motion for summary judgment. State Farm's timely notice of appeal followed.
On appeal, State Farm contends that the trial court erred in granting summary judgment in favor of plaintiff. State Farm acknowledges that, under the terms of the policy, Gamaliel was an insured driver and Albaiaty was an uninsured motorist. State Farm argued in its initial appellate brief that the trial court erred in determining that Gamaliel's death was caused by an "accident" and in determining that the accident "arose out of the operation and use of Albaiaty's uninsured vehicle for purposes of the uninsured motorist provisions in the policy. However, in its reply brief, State Farm acknowledged that the parties agree that Gamaliel's injuries arose by "accident." Thus, we express no opinion whatsoever as to whether Gamaliel's death was the result of an accident. Therefore, the only issue before us is whether the trial court erred in determining that the accident "arose out of the operation and use of Albaiaty's vehicle.
Familiar principles guide us in reviewing a grant of summary judgment. Summary judgment is appropriate where "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any *622 material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c) (West 2000). Summary judgment is a drastic measure and therefore a court should grant summary judgment only when the movant's right to judgment is clear and free from doubt. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill.2d 90, 102, 180 Ill. Dec. 691, 607 N.E.2d 1204 (1992). We review de novo the propriety of an order granting a motion for summary judgment. Traveler's Insurance Co. v. Eljer Manufacturing, Inc., 197 Ill.2d 278; 292, 258 Ill. Dec. 792, 757 N.E.2d 481 (2001).
In construing an insurance policy, the primary objective is to ascertain and give effect to the intent of the parties to the contract. Outboard Marine Corp., 154 Ill.2d at 108, 180 Ill.Dec. 691, 607 N.E.2d 1204. Courts should construe an insurance policy as a whole and take into account the type of insurance purchased, the nature of the risks involved, and the overall purpose of the contract. Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill.2d 384, 391, 189 Ill. Dec. 756, 620 N.E.2d 1073 (1993). If the words of a policy are clear and unambiguous, a court must afford them their plain, ordinary, and popular meaning. Outboard Marine Corp., 154 Ill.2d at 108, 180 Ill. Dec. 691, 607 N.E.2d 1204. Conversely, if the language in a policy is susceptible to more than one meaning, it is considered ambiguous and a court should construe it strictly against the insurer that drafted the policy and in favor of the insured. American States Insurance Co. v. Koloms, 177 Ill.2d 473, 479, 227 Ill.Dec. 149, 687 N.E.2d 72 (1997). Courts should not strain to find ambiguity in an insurance policy where none exists. Crum & Forster Managers Corp., 156 Ill.2d at 391, 189 Ill.Dec. 756, 620 N.E.2d 1073.
In support of its position that the trial court erred in determining that the accident arose out of the operation and use of Albaiaty's vehicle, State Farm relies on a line of Illinois cases that involved uninsured motorist provisions in automobile insurance policies similar to the uninsured motorist provisions in the policy in this case. The cases relied on by State Farm also involved circumstances that were more or less similar to the circumstances in this case.
One of the cases relied on by State Farm is Curtis v. Birch, 114 Ill.App.3d 127, 69 Ill.Dec. 873, 448 N.E.2d 591 (1983). In Curtis, the issue was whether the trial court erred in dismissing the count of a multicount complaint alleging that the uninsured motorist provisions in an automobile insurance policy provided coverage for certain damages. The damages allegedly resulted from the shooting death of a passenger in an insured car which was apparently parked at the time of the shooting. The driver of an uninsured vehicle allegedly fired the shots that killed the victim.
In Curtis, the appellate court affirmed the dismissal of the count in question after noting that the purpose of uninsured motorist coverage is to place the policyholder in substantially the same position he would have occupied if the wrongful driver had the minimum liability insurance required by Illinois law. Curtis, 114 Ill.App.3d at 130-31, 69 Ill.Dec. 873, 448 N.E.2d 591. The court stated that | {
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431 F.Supp. 496 (1977)
UNITED STATES of America, Plaintiff,
v.
CITY OF PAINESVILLE, Defendant.
No. C76-324.
United States District Court, N. D. Ohio, E. D.
January 19, 1977.
*497 Peter R. Taft, Asst. Atty. Gen., Land Natural Resources Div., Alfred T. Ghiorzi, Chief, Pollution Control Section, Michael P. Carlton, Atty., Pollution Control Section, Washington D. C., Joseph A. Cipollone, Asst. U.S. Atty., Cleveland, Ohio, for plaintiff.
Charles E. Cannon, Milburn, Cannon, Stern & Aveni, Painesville, Ohio, for defendant.
MEMORANDUM AND ORDER
MANOS, District Judge.
On April 2, 1976 the plaintiff, the United States of America, filed a complaint requesting that the defendant, the City of Painesville, a municipal corporation, be enjoined from operating a steam generating coal fired power unit in violation of the Clean Air Act, 42 U.S.C. § 1857c-6(e) and the Standards of Performance For New Stationary Sources, promulgated thereunder. See, 40 C.F.R. Part 60. The defendant filed a motion for summary judgment on April 23, 1976, and the plaintiff filed a motion for summary judgment, as to the defendant's liability, on July 30, 1976.
This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1345 and 42 U.S.C. § 1857c-8(b)(3).
FINDINGS OF FACT
The facts of this case are undisputed. In 1966 the City of Painesville hired the engineering consultant firm of Glaus, Pyle & Schomer (Glaus) for advice on the possibility of expanding the electrical generating capacity of the Painesville Municipal Electric Utility (Municipal Electric). See, Painesville Ordinance No. 27-66, plaintiff's Appendix A. In 1967 Painesville city council decided that expansion of Municipal Electric was both feasible and necessary and started a construction program to build an additional coal fed electrical generating unit. The completion of Municipal Electric's expansion project was tentatively expected to be in early or mid 1972. See, Document 11, Appendix B.
On December 21, 1967 Painesville made its first purchase of equipment for the new generating unit; a used 25,000 kw turbo-generator at a cost of $118,000. See, Ordinance No. 46-67, Appendix A; Document No. 6, Appendix B. In November of 1969 Glaus submitted "specifications and proposals for pulverized coal fired steam generating *498 unit no. 5." See, Document 12, Appendix B. On December 1, 1969 Painesville city council authorized the city manager to advertise for bids for the new generating unit (Unit No. 5) based on Glaus' specifications. See, Resolution No. 60-69, Appendix A. On April 20, 1970, after receiving bids on Unit 5, a letter of intent to enter into a contract for the construction of a boiler was sent to Combustion Engineering Inc. See, Document 18, Appendix B. At this point the start of construction appeared imminent. However financing difficulties caused delays and with each delay the cost of Unit 5 increased. See, Document 22, Appendix B. In August of 1971 Painesville discussed with Glaus ways to decrease the cost of Unit 5. See, Document 27, Appendix B.
On August 17, 1971 the Administrator of the United States Environmental Protection Agency (EPA) published in the Federal Register proposed standards for performance for new stationary sources. See, 36 Fed.Reg. 15704.
On September 20, 1971 Painesville informed Glaus that their services would no longer be needed. See, Document 11, Appendix C. On November 29, 1971 the engineering firm of Campbell, Deboe, Giese & Weber (Campbell) was hired. See, Resolution No. 52-71, Appendix A.
On December 23, 1971, the Standards of Performance for new source fossil-fuel fired steam generators became final. See, 36 F.R. 24877. Approximately one month later Campbell submitted a report on the proposed construction of Unit 5. In this report Campbell stated:
"Existing new federal air pollution regulations and proposed State of Ohio air pollution regulations which are scheduled to go into effect in February of this year are such that it is questionable if the boiler equipment is appropriate in all respects if furnished as originally contemplated. The new regulations cover emissions of particular matter, sulphur dioxide and nitrous oxides." See, Document 13, p. 6, Appendix C.
The report recommended a change in size of the boiler from 240,000 lbs. steam/hour (continuous rating) to 215,000 lbs. steam/hour (continuous rating). Painesville accepted the change in the boiler specifications, and on February 22, 1972 advertised for bids. See, Resolution 7-72, Appendix A. Bids were received and evaluated. One of the factors in the evaluation was whether the bids met the United States Environmental Protection Agency (EPA) and Ohio EPA regulations. Campbell noted that the bidders could only meet sulfur dioxide requirements by "fuel selection." See, Document 4, Exhibit C.
On July 28, 1972 Painesville executed a contract with Babcock & Wilcox Company for the construction of the steam generating unit of Unit 5. See, Appendix D, Document 5.
On May 17, 1973 the Ohio EPA found the City of Painesville was not required to meet Ohio's air quality standards contained in R.C. §§ 3704 et seq. because Unit 5 was not a new air contaminate source. The basis for this decision was that the contracts for purchase of the equipment for Unit 5 were made before the effective date of the Ohio Air Pollution Control Regulations, February 15, 1972. See, Defendant's Exhibit D. A consent and abatement order was later entered into by Painesville and Ohio EPA in which Painesville agreed to comply with Ohio particulate regulations and to burn coal containing less than 3.2% sulfur. See, Defendant's Exhibit B. On March 31, 1975, the EPA informed Painesville that it would not pursue enforcement of federal particulate emission standards because of the consent and abatement order, but the letter did not preclude EPA from enforcing sulfur dioxide emission standards. See, Document 3, Appendix D. On November 24, 1975 EPA issued notice that Painesville was in violation of 40 C.F.R. §§ 60.40 and 60.43 because it intended to burn coal with a 3% sulfur content which would cause in excess of 4.8 lbs. sulfur dioxide/million btu heat input to be emitted from Unit 5, a fossil-fuel fired steam generating unit with more than 250 million btu/hour heat input. See, Document 8, Appendix D. Under § 60.43 a *499 new stationary source may emit no more than 1.2 lbs. sulfur dioxide/million btu heat input. Painesville does not contest that Unit 5's emissions violate the standards set by 40 C.F.R. § 60.43 if they apply.[1] However, Painesville claims that 40 C.F.R. Part 60, Standards Of Performance For New Stationary Sources, does not apply because Unit 5 is not a new source as that term is used in 42 U.S.C. § 1857c-6(a)(2) and the regulations promulgated thereunder.
CONCLUSIONS OF LAW
The sole issue[2] for determination is whether Painesville's Unit 5 is a new source that is required to meet the regulations contained in 40 C.F.R. Part 60.[3] 42 U.S.C. § 1857c-6(a)(2) reads,
"The term `new source' means any stationary source, the construction or modification of which is commenced after the publication of regulations (or, if earlier, proposed regulations) prescribing a standard of performance under this section which will be applicable to such source."
Proposed regulations for new source emissions were issued August 17, 1971, see, 36 Fed.Reg. 15704, so that if, as of August 17, 1971, "construction" or "modification"[4] of Municipal Electric had been "commenced," Unit 5 would not be a new source and therefore sulphur dioxide emission standards promulgated under 42 U.S.C. § 1857c-6 do not apply. The words "construction," "modified," and "commenced" are not defined in § 1857c-6 but have been defined in 40 C.F.R. § 60.2(g)(h) and (i) respectively. While an interpretation of an act by the enforcing agency is not conclusive, it is entitled to "great deference," Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965); see, e. g., Youakim v. Miller, 425 U.S. 231, 235-236, 96 S.Ct. 1399, 1402, 47 L.Ed.2d 701 (1976); Satty v. Nashville Gas Company, 522 F.2d 850, 854 (6th Cir. 1975). Further the interpretation by an administrative agency of its own regulations is controlling unless plainly erroneous. See, e. g., Udall v. Tallman, 380 U.S. 1, 17, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965); Compton v. Tennessee Dept. of Public Welfare, 532 F.2 | {
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This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A13-1432
Kathi Ann Hanson, petitioner,
Appellant,
vs.
Commissioner of Public Safety,
Respondent.
Filed August 4, 2014
Affirmed
Johnson, Judge
Hennepin County District Court
File No. 27-CV-13-2560
Peter J. Timmons, Minneapolis, Minnesota (for appellant)
Lori Swanson, Attorney General, Anne Fuchs, Assistant Attorney General, St. Paul,
Minnesota (for respondent)
Considered and decided by Rodenberg, Presiding Judge; Johnson, Judge; and
Chutich, Judge.
UNPUBLISHED OPINION
JOHNSON, Judge
The commissioner of public safety revoked Kathi Ann Hanson’s driver’s license
after she was arrested for driving while impaired following an accident in which a car
crashed into a tree. Hanson petitioned to rescind the revocation, claiming that she was
not the driver of the vehicle. The district court sustained the revocation. We affirm.
FACTS
On the evening of January 12, 2013, William Mord was in his garage in the city of
Maple Grove when he heard the sound of squealing tires followed by a loud crash. He
walked outside and saw that a car had crashed into a tree in the front yard of his
residence. He approached the car and saw Hanson in the driver’s seat and a male, Daniel
Haskett, in the front passenger’s seat.
Officer Mark Ringgenberg from the Maple Grove Police Department was
dispatched to the scene of the crash. When he arrived, he saw Haskett standing next to
the car. Haskett told Officer Ringgenberg that he was driving the car at the time of the
accident, and Officer Ringgenberg confirmed that Haskett was the registered owner of
the car. Officer Ringgenberg also spoke with Hanson, who denied that she was driving
the car that evening. But Mord told Officer Ringgenberg that he believed that Hanson
was the driver based on his observations soon after the crash.
At the implied-consent hearing, there was conflicting testimony about Officer
Ringgenberg’s further investigation. The officer testified that when he confronted
Haskett with Mord’s statement, Haskett said that Hanson actually was driving at the time
of the crash and admitted that he initially had lied to protect Hanson. Haskett testified
that he was the driver of the car at the time of the crash and that he did not tell Officer
Ringgenberg that Hanson was the driver. Haskett did not deny that Hanson was in the
driver’s seat when Mord came upon the scene, but he explained that he had asked her to
2
switch seats with him so that he could retrieve the telephone number of a towing
company from the glove compartment.
Hanson failed field sobriety tests. Officer Ringgenberg arrested her for driving
while impaired and took her to the police station, where he read her the implied-consent
advisory. Hanson agreed to take a breath test, which registered an alcohol concentration
that was greater than .08. The commissioner of public safety revoked her driver’s
license.
In February 2013, Hanson petitioned for judicial review of the commissioner’s
revocation of her driver’s license. See Minn. Stat. § 169A.53, subd. 2 (2012). She
challenged the revocation on two grounds: that she was not the driver of the car at the
time of the crash and that her consent to the breath test was invalid. In April 2013, the
district court held an implied-consent hearing at which Officer Ringgenberg, Mord, and
Haskett testified. In May 2013, the district court issued an order denying Hanson’s
petition and sustaining the revocation. The district court concluded that Hanson was the
driver of the car at the time of the crash and that her consent to the breath test was valid.
Hanson appeals.
DECISION
Hanson argues that the district court erred by sustaining the revocation of her
driver’s license because the commissioner failed to prove that she was driving the car at
the time of the crash.
The issue before the district court was: “Did the peace officer have probable cause
to believe [Hanson] was driving, operating, or in physical control of a motor vehicle or
3
commercial motor vehicle in violation of section 169A.20 (driving while impaired)?”
See Minn. Stat. § 169A.53, subd. 3(b)(1); see also Hayes v. Commissioner of Pub. Safety,
773 N.W.2d 134, 137 (Minn. App. 2009). Accordingly, the commissioner was not
required to prove that Hanson actually was driving the vehicle; the commissioner was
required to prove only that there was probable cause to believe that Hanson was driving
the vehicle and probable cause to believe that she was impaired. See Snyder v.
Commissioner of Pub. Safety, 496 N.W.2d 858, 860 (Minn. App. 1993). The
commissioner has the burden to prove those facts (that the officer had probable cause to
believe that Hanson was driving and probable cause to believe that she was impaired) “by
a fair preponderance of the evidence.” Roberts v. Commissioner of Pub. Safety, 371
N.W.2d 605, 607 (Minn. App. 1985), review denied (Minn. Oct. 11, 1985).
The district court’s resolution of factual issues may depend on its “opportunity to
judge the credibility of the witnesses,” id., and this court gives “[d]ue regard” to the
district court’s credibility determinations, Snyder v. Commissioner of Pub. Safety, 744
N.W.2d 19, 22 (Minn. App. 2008). A district court also may rely on circumstantial
evidence. See Hunt v. Commissioner of Pub. Safety, 356 N.W.2d 801, 803 (Minn. App.
1984). A district court’s finding of fact is not erroneous simply because the evidence also
could support a different conclusion. Engebretson v. Commissioner of Pub. Safety, 395
N.W.2d 98, 99-100 (Minn. App. 1986). A district court’s finding of fact is “entitled to
the same weight as a jury verdict and cannot be reversed if the court could reasonably
have made the finding based upon the evidence adduced at trial.” Roberts, 371 N.W.2d
at 607.
4
In this case, the district court found both that Hanson “was actually driving at the
time of the accident” and that Officer Ringgenberg “had probable cause to believe
[Hanson] was driving.” The district court found credible Officer Ringgenberg’s
testimony that Haskett told him that Hanson was the driver at the time of the crash. We
must defer to the district court’s credibility determination. See Snyder, 744 N.W.2d at
22. Officer Ringgenberg’s testimony is direct evidence that Hanson was the driver of the
vehicle. Mord’s testimony that he saw Hanson in the driver’s seat shortly after the crash
is circumstantial evidence that Hanson was the driver of the vehicle. This evidence
supports the district court’s findings that Hanson was driving the car at the time of the
crash and that Officer Ringgenberg had probable cause to believe that was so. See
Roberts, 371 N.W.2d at 607.
Hanson contends that the evidence is insufficient because it shows only that she
was in the driver’s seat and because no one actually saw her driving the car. Her
contention ignores Officer Ringgenberg’s testimony that Haskett stated that Hanson was
driving. Although Haskett testified to the contrary at the hearing, the district court
rejected his testimony and his explanation for why Hanson was in the driver’s seat. This
court has no reason to overturn the district court’s credibility determination. See
Engebretson, 395 N.W.2d at 99-100. In addition, Hanson’s contention ignores Mord’s
testimony, on which the district court also relied. See Hunt, 356 N.W.2d at 803. We
conclude that the district court did not err by finding that Hanson was the driver of the car
at the time of the crash and that Officer Ringgenberg had probable cause to believe that
Hanson was driving.
5
In her appellate brief, Hanson also argued that the district court erred by | {
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541 U.S. 968
LEINENBACH, AKA NELSONv.UNITED STATES.
No. 03-9173.
Supreme Court of United States.
March 29, 2004.
1
C. A. 3d Cir. Certiorari denied.
| {
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 10-578V
Filed: April 14, 2017
*************************
MORGAN A. JOHNSON, *
*
Petitioners, * Special Master Sanders
*
v. *
*
SECRETARY OF HEALTH AND * Attorneys’ Fees and Costs;
HUMAN SERVICES * Fees for Travel; Expert Costs.
*
Respondent. *
*************************
Franklin John Caldwell, Jr., Maglio, Christopher & Toale, Sarasota, FL, for Petitioner.
Lara Ann Englund, United States Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING ATTORNEYS’ FEES AND COSTS1
On August 26, 2010, Morgan Johnson (“Petitioner”) filed a petition pursuant to the
National Vaccine Injury Compensation Program,2 42 U.S.C. §§ 300aa-10 to -34 (2012).
Petitioner alleged that she suffered from Systemic Lupus Erythematosus (“SLE”) as a result of
the administration of Human Papillomavirus (“HPV”) vaccinations on November 21, 2007;
March 5, 2008; and June 3, 2008. Pet. 1, ECF No. 1.
1
This decision shall be posted on the website of the United States Court of Federal Claims, 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 (2012)). As provided by Vaccine Rule
18(b), each party has 14 days within which to request redaction “of any information furnished by
that party: (1) that is a trade secret or commercial or financial in substance and is privileged or
confidential; or (2) that includes medical files or similar files, the disclosure of which would
constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b).
2
National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755 (“the
Vaccine Act” or “Act”). Hereinafter, for ease of citation, all “§” references to the Vaccine Act
will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).
On August 18, 2016, Special Master Hamilton-Fieldman issued a Decision dismissing
Petitioner’s claim. Decision 2, ECF No. 78. On March 10, 2017, Petitioner submitted a Motion
for Attorneys’ Fees. Mot. Att’ys’ Fees, ECF No. 84. Respondent submitted his Response on
March 20, 2017. Resp’t Resp., ECF No. 85. Petitioner filed her Reply on March 21, 2017.
Pet’r’s Reply, ECF No. 86. After careful consideration, the undersigned grants Petitioner’s
Motion for Attorneys’ Fees in part.
I. PROCEDURAL HISTORY
Special Master Hamilton-Fieldman issued an entitlement decision in this case after a two-
part hearing, held on October 29, 2013 and December 17, 2013. Decision 2. In her Decision,
Special Master Hamilton-Fieldman held that Petitioner failed to show that her injury was
“caused-in-fact” by her HPV vaccinations. Id. at 7, 15. Under the test established by the Federal
Circuit in Althen, petitioners must “set forth: ‘(1) a medical theory causally connecting the
vaccination and the injury [(‘Althen Prong One’)]; (2) a logical sequence of cause and effect
showing that the vaccination was the reason for the injury [(‘Althen Prong Two’)]; and (3) a
showing of a proximate temporal relationship between vaccination and injury [(‘Althen Prong
Three’)].’” Id. at 7 (quoting Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274, 1278
(Fed. Cir. 2005)). Special Master Hamilton-Fieldman found that Petitioner failed to meet all of
Althen’s prongs, and she dismissed the petition accordingly. Id. at 12-15.
In Petitioner’s subsequent Motion for Attorneys’ Fees, she requested $119,357.25 in fees
and $36,261.09 in costs, totaling $155,618.34. Mot. Att’ys’ Fees 1-2. Petitioner’s counsel,
Franklin John Caldwell, Jr., requested an hourly rate of $275 for work completed in calendar
years 2009 and 2010. Pet’r’s Ex. 120 at 24, ECF No. 84-1. He then increased his hourly rate to
$300 for his work from 2011 to 2015. Id. For 2016, Mr. Caldwell requested an hourly rate of
$356, and in 2017, he requested an hourly rate of $367. Id. Three other attorneys at Mr.
Caldwell’s firm also submitted hours related to their work in this case. Id. Anne C. Toale, an
attorney with Mr. Caldwell’s firm, requested an hourly rate of $275 for .7 hours, and Diana L.
Stadelnikas, another attorney, requested an hourly rate of $300 for .1 hours of work. Id.
Danielle A. Strait, the third attorney, requested an hourly rate of $295 for her work from 2013 to
2016 for 28.5 hours of work with this case. Id. She increased her hourly rate request to $320 for
2017. Id. Mr. Caldwell also requested hourly rates of $75, $95, $135, and $145 for the work of
his firm’s paralegals, respective to the paralegal’s experience. Id. Petitioner’s application
included an invoice from her expert, Dr. Yehuda Shoenfeld, for $18,000. Pet’r’s Ex. 121 at 84,
ECF No. 84-2. Additionally, Petitioner’s Motion included a statement averring that Petitioner
did not incur any personal costs during the litigation of this case. Pet’r’s Ex. 122, ECF No. 84-3.
Respondent’s response stated that neither the Vaccine Act nor the Rules of the Vaccine
Program “contemplate any role for respondent in the resolution of a request by a petitioner for an
award of attorneys’ fees and costs.” Resp’t Resp. 1. Consequently, Respondent urged for the
undersigned to “exercise her discretion and determine a reasonable award for attorneys’ fees and
costs.” Id. at 3. Petitioner’s Reply claimed that Respondent’s position burdened the Court and
prejudiced Petitioner. Pet’r’s Reply 2. Without specific objections from Respondent, Petitioner
argued, the Court determines fee applications without allowing petitioners the opportunity to
2
respond to any “issues or misperceptions.” Id. Petitioner then argued that her requested rates are
reasonable and that she met her burden establishing the reasonableness of her request. Id. at 3-5.
This matter is now ripe for a decision. For the reasons articulated below, the undersigned
awards Petitioner $116,233.25 for attorneys’ fees and costs in full, for a total award of
$152,494.34.
II. STANDARDS FOR ADJUDICATION
When a petitioner in the Vaccine Program does not prevail on his or her claim, a special
master may award attorneys’ fees and other costs if “the petition was brought in good faith and
there was a reasonable basis for which the petition was brought.” § 15(e)(1); Sebelius v. Cloer,
133 S. Ct. 1886, 1893 (2013). “Good faith” is a subjective standard. Hamrick v. Sec’y of Health
& Human Servs., No. 99-683V, 2007 WL 479152, at *3 (Fed. Cl. Spec. Mstr. Nov. 19, 2007).
Reasonable basis, on the other hand, can be met when a petition is filed with evidence. See
Chuisano v. Sec’y of Health & Human Servs., No. 07-452V, 2013 WL 6234660, at *8-10 (Fed.
Cl. Spec. Mstr. Oct. 25, 2013), mot. for rev. denied, 116 Fed. Cl. 276 (2014). Respondent does
not contest that this claim was filed in good faith and with a reasonable basis. The undersigned
finds no evidence to indicate that this petition was filed in bad faith, and Petitioner demonstrated
a reasonable basis for her petition by submitting an expert report in support of her claim.
Therefore, Petitioner satisfied the requirements of § 15(e)(1), and the undersigned finds that it is
appropriate to award reasonable attorneys’ fees and costs in the current matter.
The Federal Circuit has approved the lodestar approach to determine reasonable
attorneys’ fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515
F.3d 1343, 1348 (Fed. Cir. 2008). This is a | {
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2016 IL 119704
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 119704)
MOLINE SCHOOL DISTRICT NO. 40 BOARD OF EDUCATION, Appellee, v.
PATRICK QUINN, Governor, State of Illinois, et al. (Elliott Aviation, Inc., Appellant).
Opinion filed June 16, 2016.
JUSTICE KARMEIER delivered the judgment of the court, with opinion.
Chief Justice Garman and Justices Freeman, Thomas, Kilbride, and Burke
concurred in the judgment and opinion.
Justice Theis dissented, with opinion.
OPINION
¶1 At issue on this appeal is the constitutionality of Public Act 97-1161 (eff. June
1, 2013), which amended the Property Tax Code (35 ILCS 200/1-1 et seq. (West
2014)) to create an exemption from property taxes on leasehold interests and
improvements on real estate owned by the Metropolitan Airport Authority of Rock
Island County and used by a so-called fixed base operator (FBO) to provide
aeronautical services to the public. When the law was enacted, there was only one
FBO leasing land from the Metropolitan Airport Authority, Elliott Aviation, Inc.
The new law was specifically designed to provide a financial incentive for that
particular company to expand its operations at the Metropolitan Airport Authority’s
facilities rather than its operations in Des Moines, Iowa, which were not subject to
property tax.
¶2 Moline School District No. 40 Board of Education (the School District), which
faced losing more than $150,000 per year in tax revenue as a result of the
exemption for Elliott Aviation, brought an action for declaratory and injunctive
relief in the circuit court of Rock Island County to block implementation of the new
law on the grounds that it violates various provisions of the Illinois Constitution,
including the “special legislation” clause of article IV, section 13 (Ill. Const. 1970,
art. IV, § 13). On cross-motions for summary judgment, the circuit court rejected
the School District’s challenge to the law and concluded that it is constitutional.
The appellate court reversed and remanded with directions, holding that the law
contravenes the article IV, section 13 prohibition against special legislation. 2015
IL App (3d) 140535. Elliott Aviation appealed to our court as a matter of right. Ill.
S. Ct. R. 317 (eff. July 1, 2006). For the reasons that follow, we affirm the appellate
court’s judgment.
¶3 BACKGROUND
¶4 Elliott Aviation is what is known in the aviation industry as a fixed based
operator, or FBO. FBOs are commercial businesses allowed to operate at airports
for the purpose of supplying support services to general aviation aircraft, i.e., those
not operated by commercial airlines, large charters, or the military, and to the pilots
and passengers of such aircraft. Typical services provided by FBOs include fueling,
hangaring, aircraft maintenance and repair, aircraft rental, restrooms, rest areas,
and facilities for conferences and flight planning. Numerous FBOs operate in the
State of Illinois, which is home to 19 other airport authorities in addition to the
Metropolitan Airport Authority of Rock Island County (the MAA).
¶5 Elliott Aviation was founded in the 1930s and has three FBO operations in the
Midwest: Moline, Illinois; Des Moines, Iowa; and Minneapolis, Minnesota. The
Moline location, which has 229 employees, is located on the grounds of the Quad
City International Airport (Quad City). Elliott Aviation does not own either the
land or the buildings where it conducts its business there, although it paid for the
buildings to be constructed. Both the real estate and the improvements are owned
by the MAA, which leases them to the company. Although the MAA itself is not
-2-
required to pay property tax, Illinois has assessed property taxes on airport property
leased to FBOs, and Elliott Aviation has been required to pay property tax on the
FBO it operates at the Quad City airport in Moline.
¶6 Several years ago, Elliott Aviation made known its interest in expanding its
operations, either in Moline or at its Des Moines, Iowa, location. Cost was a factor,
and one difference between these two possible options was that the company’s
leasehold interests in its Iowa location were not subject to real estate taxes.
¶7 An economic impact analysis conducted by the Quad Cities Chamber of
Commerce indicated that expansion at the Moline facility could be expected to
create numerous new high-paying jobs and bring millions of dollars in revenue into
Rock Island County. To provide an incentive for Elliott Aviation to pursue the
Moline option, the Chamber of Commerce asked a local state legislator to support
legislation that would exempt the company’s leasehold interests at the Quad City
airport from property tax. The result was House Bill 4110. That legislation was
ultimately enacted into law as Public Act 97-1161, the legislation challenged in this
case. It amended the Property Tax Code (35 ILCS 200/1-1 et seq. (West 2014)) to
provide, in pertinent part, that “[i]f property of the Metropolitan Airport Authority
of Rock Island County is leased to a fixed base operator that provides aeronautical
services to the public, then those leasehold interests and any improvements thereon
are exempt [from taxation].” 35 ILCS 200/15-160(c) (West 2014).
¶8 Legislative debates on House Bill 4110 were clear and unambiguous as to the
law’s purpose: to provide property tax relief for Elliott Aviation so that it would
have an incentive to expand its operations at the Moline location, rather than at a
location in Iowa or some other state, and thereby improve the local economy. See
97th Ill. Gen. Assem., House Proceedings, Mar. 29, 2012, at 135-42. Equally clear
was that the General Assembly did not want to extend the same property tax relief
to any other operator at any other Illinois airport. An effort was made to amend the
legislation to extend the same favorable tax treatment to FBO leases at the Lansing
Municipal Airport in Cook County, but that effort was rebuffed. When House Bill
4110 was signed into law by the Governor as Public Act 97-1161, it benefited a
solitary company, Elliott Aviation, at a single airport, Quad City in Moline.
¶9 Prior to enactment of Public Act 97-1161, Elliott Aviation’s annual property
tax bill included more than $150,000 per year for Moline School District No. 40.
With passage of the new law and creation of the new exemption, the School District
-3-
faced losing all of that tax revenue. Because there was no sunset provision in the
law, the loss would be recurrent and permanent.
¶ 10 The School District, which felt that it could ill afford the loss in revenue,
responded by filing an action in the circuit court of Rock Island County to have the
law declared unconstitutional and to enjoin its enforcement. Named as defendants
were numerous governmental entities and officials, including the Governor, the
Director of Revenue, and the local tax authorities.
¶ 11 The School District’s complaint contained four counts. Count I alleged that
Public Act 97-1161 violates the special legislation clause of the Illinois
Constitution, which prohibits the General Assembly from passing a “special or
local law when a general law is or can be made applicable.” Ill. Const. 1970, art. IV,
§ 13. Count II sought to have the law invalidated on the grounds that it violates
article I, section 2, of the Illinois Constitution, which provides that “[n]o person
shall be deprived of life, liberty or property without due process of law nor be
denied the equal protection of the laws.” Ill. Const. 1970, art. I, § 2. Count III
asserted that the statute is fatally infirm because it offends the requirement in our
State’s constitution that “[e]xcept as otherwise provided in this Section, taxes upon
real property shall be levied uniformly by valuation ascertained as the General
Assembly shall provide by law.” Ill. Const. 1970, art. IX, § 4(a). Finally, count IV
alleged that the statute was invalid and could not be enforced because it was
incompatible with the requirement in article IX, section 6, of the Illinois
Constitution of 1970 that “[t]he General Assembly by law may exempt from
taxation only the property of the State, units of local government and school
districts and property used exclusively for agricultural and horticultural societies,
and for school, religious, cemetery and charitable purposes.” Ill. | {
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 23, 2006
No. 05-13692 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00669-CR-2-WBH-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEONARD MASON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(February 23, 2006)
Before TJOFLAT, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Leonard Mason appeals his 21-month sentence for conspiracy to “knowingly
cause false representations to be made with respect to information required to be
kept in the records of a federal firearms licensee,” 18 U.S.C. §§ 371, 924(s)(1)(A),
and conspiracy to “knowingly and willfully engage in the business of dealing in
firearms without a license,” 18 U.S.C. §§ 371, 922(a)(1)(A). Mason argues that
the district court erred when it enhanced his offense level at sentencing for
obstruction of justice. We affirm.
I. BACKGROUND
Mason and James Pray were indicted together in a superseding indictment
on January 20, 2004, for multiple federal firearms offenses. Mason pleaded not
guilty and proceeded to trial. At the close of the trial, the jury found Mason guilty.
On June 23, 2004, the district court conducted a sentencing hearing. At the
hearing, the district court heard argument on the application of an enhancement for
obstruction of justice under section 3C1.1 of the federal Sentencing Guidelines.
The government argued that the obstruction enhancement was appropriate for two
reasons. First, the government argued that the enhancement was warranted
because, after learning that federal agents had interviewed Pray, Mason called
Rashaud Wayns, a convicted felon who purchased firearms from Mason and Pray,
and instructed him to “clean his house.” Wayns, who testified at trial, interpreted
2
the comment as a direction to discard the firearms he possessed. Second, the
government argued that the enhancement was warranted because, after federal
agents came to Mason’s house to talk with him, Mason filed a false police report
with the Cobb County, Georgia, Police Department and claimed that nine pistols
were stolen from his unlocked vehicle. Two months later, when the agents
interviewed Mason at his home, Mason told the agents that weapons were stolen
from him and presented a copy of the police report to the agents.
Mason argued that the enhancement was not appropriate because there was
no evidence that Mason’s false report had impeded significantly the investigation
or prosecution. The district court overruled the objected and enhanced the
sentence based on the false police report that Mason had filed. The district court
found that the report had caused a delay of several months. Immediately before
stating the calculation of the sentencing range under the Guidelines, the district
court also found that Mason had “warn[ed] his co-defendant in Washington or co-
conspirator in Washington.”
With a two level enhancement, the district court calculated the appropriate
offense level to be 18, the criminal history category to be I, and the guideline
imprisonment range to be 27 to 33 months. After considering several factors,
including the serious nature of the crime, Mason’s limited criminal history, and the
3
fact that Mason had been a good father and had a good work record, the district
court concluded that a sentence below the guideline range would be sufficient to
punish and deter Mason and entered a sentence of 21 months of imprisonment and
3 years of supervised release. Mason appeals the obstruction of justice
enhancement.
II. STANDARD OF REVIEW
We review findings of fact by the district court for clear error. United States
v. Crawford, 407 F.3d 1174, 1177 (11th Cir. 2005). Whether the facts trigger an
enhancement for obstruction of justice is a question of law we review de novo. See
United States v. Banks, 347 F.3d 1266, 1269 (11th Cir. 2003).
III. DISCUSSION
Under section 3C1.1 of the Sentencing Guidelines, a defendant’s offense
level is enhanced by two levels if he willfully obstructed or attempted to obstruct
“the administration of justice during the course of the investigation, prosecution, or
sentencing of the instant offense of conviction,” and the obstructive conduct relates
to the defendant’s offense of conviction or a closely related offense. U.S.S.G. §
3C1.1. The application notes to section 3C1.1 provide a non-exhaustive list of
examples of obstructive conduct for which the enhancement would be appropriate.
See id. cmts. Application note 4(d) lists the act of “destroying or concealing or
4
directing or procuring another person to destroy or conceal evidence that is
material to an official investigation or judicial proceeding . . . or attempting to do
so.” U.S.S.G. § 3C1.1, cmt. 4(d). Application note 4(g) lists the act of “providing
a materially false statement to a law enforcement officer that significantly
obstructed or impeded the official investigation or prosecution of the instant
offense.” U.S.S.G. § 3C1.1, cmt. 4(g). We require clear factual findings to
determine if the application of section 3C1.1 is supported. See United States v.
Alpert, 28 F.3d 1104, 1107-08 (11th Cir. 1994) (en banc). When the district court
applies the obstruction of justice enhancement, “it should note specifically what
each defendant did, why that conduct warrants the enhancement, and, if applicable,
how that conduct actually hindered the investigation or prosecution of the offense.”
Id. at 1108.
The district court applied the enhancement because it concluded that Mason
had provided a false statement to a law enforcement officer that significantly
obstructed the investigation of the offense. The district court stated that Mason’s
false police report delayed the investigation and prosecution by several months.
The district court provided no further explanation.
The district court failed to follow our admonition in Alpert that a court must
provide a specific explanation for the enhancement of a sentence based on a false
5
statement to a law enforcement officer. The district court did not explain how
Mason’s conduct actually caused a delay in either the prosecution or investigation.
See id. The record also does not reveal how, if it all, Mason’s action delayed the
investigation.
Mason’s appeal nevertheless fails for another reason. We may affirm the
application of the enhancement on any ground supported by the record. United
States v. Amedeo, 370 F.3d 1305, 1319 n.12 (11th Cir. 2004). The record reveals
an alternate basis for the enhancement.
Mason’s attempt to direct Wayns to destroy or conceal material evidence is
sufficient to support the enhancement for obstruction under comment 4(d) to
section 3C1.1. At trial, Wayns testified that Mason called Wayns and warned him
to “clean his house,” which Wayns understood to mean he should get rid of his
guns. At sentencing, the district court found that Mason had warned his
coconspirator, and this finding by the district court was not clearly erroneous. In
contrast with application note 4(g), note 4(d) does not require the government to
show that the order to destroy or conceal evidence significantly impeded the
investigation. The finding of the district court supports the enhancement on this
alternative basis.
6
IV. CONCLUSION
Mason’s sentence is
AFFIRMED.
7
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149 F.3d 1189
NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.Ini WATSON, Appellant,v.CAPITAL REGION MEDICAL CENTER; Ken Belt; Carla Hahn; RitaStitsel, Appellees.
No. 97-3726.
United States Court of Appeals, Eighth Circuit.
Submitted: April 23, 1998.Filed: April 28, 1998.
Appeal from the United States District Court for the Western District of Missouri.
Before FAGG, BEAM, and HANSEN, Circuit Judges.
PER CURIAM.
1
Ini Watson appeals the district court's1 grant of summary judgment to one defendant and the dismissal of three others in her action brought under Title VII, 42 U.S.C. §§ 2000e-2000e-17. After a careful review of the record and the parties' submissions on appeal, we conclude the district court was correct and an extended discussion is unnecessary. Accordingly, we affirm the judgment of the district court. See 8th Cir. R. 47B.
2
A true copy.
1
The Honorable William A. Knox, United States Magistrate Judge for the Western District of Missouri, to whom the case was referred for final disposition by consent of the parties pursuant to 28 U.S.C. § 636(c)
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C-Track E-Filing
The Supreme Court
of Nevada
Appellate Case Management System
C-Track, the browser based CMS for Appellate Courts
Case Search
Participant Search
| {
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} |
963 F.2d 235
UNITED STATES of America, Plaintiff-Appellee,v.Jerry Joseph LAVERNE, Defendant-Appellant.
No. 89-10356.
United States Court of Appeals,Ninth Circuit.
Submitted Feb. 12, 1992.*Decided April 28, 1992.
Clifford E. Tedmon, Tedmon & Tedmon, Sacramento, Cal., for defendant-appellant.
Richard J. Bender, Asst. U.S. Atty., Sacramento, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Eastern District of California.
Before: HALL and WIGGINS, Circuit Judges, and KEEP**, District Judge.
WIGGINS, Circuit Judge:
1
Defendant/Appellant, Jerry Laverne, appeals the sentence he received under the United States Sentencing Guidelines for bank robbery. 18 U.S.C. § 2113(a) (1988); U.S.S.G. § 2B3.1. Laverne argues that the district court erred by announcing Laverne's sentence before Laverne was allowed to address the court in the sentencing hearing. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 (1988). We affirm the district court's decision.
BACKGROUND
2
On March 29, 1989, Laverne plead guilty to bank robbery. Because Laverne had been convicted of five violent felonies over the last twenty-seven years, ranging from rape to kidnapping to armed robbery, he was properly classified as a "career offender" under Sentencing Guidelines section 4B1.1. Laverne was represented by counsel at all times, and the originally scheduled sentencing hearing was postponed to allow Laverne's attorney to file a sentencing brief. In the brief and at the sentencing hearing, Laverne's attorney argued that the Sentencing Guidelines produced a disproportionately harsh sentence for Laverne because Laverne was not really a "violent criminal," and he urged the court to impose a lesser sentence.
3
The district court rejected this argument and ruled that Guideline section 4B1.1 was applicable, that Laverne was indeed a violent criminal and career offender under the Guidelines, and that the sentence imposed under the Guidelines was appropriate. While addressing Laverne's argument, the court also stated that Laverne would receive the mid-range Guideline sentence of 225 months. After this preliminary sentence was announced, the Assistant United States Attorney reminded the court that it must allow Laverne an opportunity to make a statement before imposing sentence. The court invited Laverne to make a statement, and Laverne made the same arguments as his attorney about his status as a career offender under the Sentencing Guidelines. The court again explained that Laverne's sentence was correct under the Sentencing Guidelines and then concluded the sentencing hearing.
DISCUSSION
4
"Before imposing sentence, the court shall ... address the defendant personally and determine if the defendant wishes to make a statement and to present any information in mitigation of the sentence." Fed.R.Crim.P. 32(a)(1)(C). This rule is derived from the common law right of a criminal defendant to make a statement before sentence is imposed, as was explained in Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 655, 5 L.Ed.2d 670 (1961). The issue before us is whether Rule 32(a)(1)(C) may be satisfied by allowing the defendant an opportunity to make a statement before the end of the sentencing hearing but after the court has indicated its tentative conclusions on sentencing. This issue is a mixed question of law and fact and we review it de novo. See United States v. McConney, 728 F.2d 1195, 1201-04 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984); see also United States v. Navarro-Flores, 628 F.2d 1178, 1184 (9th Cir.1980) (de novo review of whether allowing defendant's counsel to address the court without inviting a personal statement from the defendant himself satisfies the requirements of Rule 32(a)(1)).
5
We believe the district court complied with the requirements of Rule 32(a)(1)(C) when it allowed the defendant to make a statement concerning his sentence before the end of the sentencing hearing. The court was able to consider the defendant's statement and was free to alter its view of the sentence if the defendant offered a sufficient reason for changing its view. The record shows that Laverne had the same opportunity to persuade the judge to mitigate his sentence as any other defendant under Rule 32(a)(1)(C).
6
Laverne relies on Green for the proposition that judges must refrain from indicating their views on the appropriate sentence until after defendants have had their opportunity to make a statement. We read Green differently. As long as the defendant has an opportunity to make a statement during the sentencing hearing, before the court makes its final judgment, Rule 32(a)(1)(C) is satisfied. Nothing in the record indicates that the court failed to give the defendant's statement the consideration it deserved. That the court had already made a preliminary determination regarding Laverne's sentence does not indicate that the court failed to give Laverne's statement due consideration. United States v. Mata-Grullon, 887 F.2d 23, 25 (1st Cir.1989). Indeed, the record shows that the court considered Laverne's arguments very carefully when they were first raised by his attorney and was simply not persuaded when these arguments were raised again by Laverne in his statement to the court. Like the plurality in Green, we "do not read the record before us to have denied the defendant the opportunity to which Rule 32(a) entitled him." 365 U.S. at 304, 81 S.Ct. at 655.
7
Laverne also relies upon Navarro-Flores for the proposition that remand to a different district judge is necessary if the sentencing judge expresses a preliminary conclusion on the sentence before the defendant's statement. As in Navarro-Flores, we emphasize that "in exercising his right to allocution defendant has the right to present fully all available accurate information bearing on mitigation of punishment, and the district court has a duty to listen and give careful and serious consideration to such information." Id. at 1184. We are satisfied that the district court complied with this mandate.
8
Remand to a different district court judge for resentencing was appropriate in Navarro-Flores because the defendant's statement could have presented "new factual matter" after the court had expressed its final judgment. Id. In the present case, Laverne presented no new factual information or legal arguments; he simply reiterated his position as previously expressed by his attorney. Moreover, we remanded the case to a different district judge in Navarro-Flores because the record showed "repeatedly expressed views, some apparently firmly expressed, of defendant by the district judge...." Id. (footnote omitted). The record before us shows that Laverne had a fair opportunity to personally persuade the court on the issue of mitigation and that the court gave Laverne's comments serious attention. The court's views regarding Laverne's sentence were not final or firm at the time of Laverne's statement because the sentencing hearing was still in progress.
9
Thus, unlike Navarro-Flores, remand to a different district judge is unnecessary. Indeed, any remand is unnecessary because the district court gave Laverne's statements full consideration before his sentence was final. It would be a pointless exercise to remand this case so the district court could consider Laverne's statement again. The requirements of Rule 32(a)(1)(C) were met when the district court considered Laverne's statements during the first sentencing hearing; there is no need for a second.
10
Laverne's arguments, however, are not meritless. We agree that district courts must be careful to avoid the concerns raised in Navarro-Flores by reserving final judgment on the defendant's sentence until after the defendant has had an opportunity to make his statement. In the present case, nothing in the record suggests the district court's preliminary views were final or inflexible before the court heard Laverne's allocution; the court simply refused to be persuaded by arguments that it had already heard. Thus, allowing the defendant an opportunity to make a statement before the end of the sentencing hearing but after the court had orally indicated its views regarding the appropriate sentence did not violate Rule 32(a)(1)(C).
11
For these reasons, the judgment of the district court is AFFIRMED.
*
The panel finds this case appropriate for submission without argument pursuant to Fed.R.App.P. 34(a) and 9th Cir.R. 34-4
**
Hon. Judith Keep, United States District Judge for the Southern District of California, sitting by designation
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