text
stringlengths 78
10.7k
| meta
dict |
|---|---|
The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
February 8, 2018
2018COA12
No. 14CA0144, People v. Trujillo — Criminal Law — Sentencing
— Probation — Indeterminate Sentence
A division of the court of appeals considers whether a
Colorado statute authorizes imposition of a sentence to an
indeterminate term of probation and whether the defendant was
entitled to the benefit of amendments to the statute criminalizing
theft. Relying on People v. Jenkins, 2013 COA 76, 305 P.3d 420,
the division concludes that section 18-1.3-202(1), C.R.S. 2017,
provides statutory authority for the imposition of an indeterminate
probation sentence. Following People v. Stellabotte, 2016 COA 106,
___ P.3d ___ (cert. granted Feb. 6, 2017), the majority further
concludes that the defendant is entitled to the benefit of
amendments to the theft statute. The partial dissent concludes
that the amendments to the theft statute do not apply retroactively,
and would therefore affirm the sentence in full.
Additionally, the division rejects the defendant’s contentions
that reversal is required due to the trial court’s rejection of
defense-tendered jury instructions, wrongfully admitted character
evidence, and prosecutorial misconduct. However, the division
remands for the trial court to make findings of fact concerning the
assessment of the costs of prosecution.
Accordingly, the division affirms the conviction, affirms the
sentence in part, vacates the sentence in part, and remands the
case with directions.
COLORADO COURT OF APPEALS 2018COA12
Court of Appeals No. 14CA0144
Mesa County District Court No. 11CR447
Honorable Valerie J. Robison, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Michael Floyd Trujillo,
Defendant-Appellant.
JUDGMENT AFFIRMED, SENTENCE AFFIRMED IN PART AND
VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE TAUBMAN
Richman, J., concurs
Furman, J., concurs in part and dissents in part
Announced February 8, 2018
Cynthia H. Coffman, Attorney General, Joseph G. Michaels, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, James S. Hardy, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Michael Floyd Trujillo, appeals his judgment of
conviction entered on a jury verdict finding him guilty of one count
of theft of more than $20,000 and one count of criminal mischief of
$20,000 or more. He also appeals his sentence. We perceive no
basis for reversing his convictions, but remand for the trial court to
make findings of fact regarding the assessment of the costs of
prosecution and to reclassify his theft conviction as a class 4 felony.
I. Background
¶2 In 2007, Trujillo began building a home, doing much of the
labor himself and initially using his own money to fund the project.
He later took out a construction loan from the victim, a bank, for
just under $255,000. After construction was completed on the
house, Trujillo stopped making his monthly loan payments. The
bank declined to restructure the loan and initiated foreclosure
proceedings in September 2010.
¶3 Before the foreclosure sale, Trujillo removed or destroyed
property in the house, including kitchen cabinets, countertops,
interior and exterior doors, doorjambs and casings, flooring,
baseboards, light fixtures, bathroom fixtures, the fireplace,
handrails, the boiler, the air conditioner, and the garage door.
1
Because of this damage, the house was appraised at $150,000;
however, the appraiser estimated that if the house were in good
repair, it would have been worth $320,000.
¶4 Trujillo was charged with defrauding a secured creditor, theft
of $20,000 or more, but less than $100,000, and criminal mischief
of $20,000 or more, but less than $100,000. The jury found him
not guilty of defrauding a secured creditor and guilty of theft and
criminal mischief.
¶5 On appeal, Trujillo raises six contentions: (1) the trial court
erred in rejecting defense-tendered jury instructions; (2) the trial
court erred in allowing evidence of a prior foreclosure against
Trujillo; (3) prosecutorial misconduct during direct examination of a
witness and closing rebuttal argument warrants reversal; (4) the
trial court imposed an illegal sentence of indeterminate probation;
(5) the trial court erred in awarding the People costs of prosecution;
and (6) an amendment to the theft statute applies to his conviction.
We perceive no basis for reversal with respect to the first four
contentions, but agree with Trujillo’s final two contentions. We
therefore affirm the convictions and the sentence in part but vacate
the sentence in part and remand with directions.
2
II. Jury Instructions
¶6 Trujillo asserts that the trial court erred in rejecting various
jury instructions regarding his theory of the case. We disagree.
A. Additional Facts
¶7 Throughout trial, the defense’s theory of the case was that
Trujillo lacked the requisite intent to commit the charged offenses
because he believed that the property he removed from the house
belonged to him. The defense tendered five jury instructions related
to this theory of the case.
¶8 Trujillo’s tendered jury instructions detailed property law
concepts. For example, the first tendered instruction stated that
“the person who has title to real property is still the owner of the
property even if there is a lien or secured interest on the property.”
Another tendered instruction defined “title,” “deed of trust,” and
“holder of a certificate of purchase[].” One instruction described the
lien theory detailed in section 38-35-117, C.R.S. 2017, and another
instructed that title to property “does not vest with the purchaser
until eight days after [a] foreclosure sale.”
¶9 The trial court declined to give these instructions as tendered.
However, portions of the defense-tendered instructions were
3
included in a final definitional jury instruction. The final
instructions defined “deed of trust” and stated that the title to
property is transferred to the holder of the certificate of purchase
eight days after a foreclosure sale. Though it rejected other
portions of the defense-tendered instructions, the trial court
permitted defense counsel to argue the issues raised in the
instructions during closing argument.
¶ 10 The defense also tendered an instruction which the trial court
modified and gave as a theory of the case instruction. That
instruction stated, “Trujillo contends that the items removed from
the home . . . were his; purchased by him and installed by him. . . .
Trujillo conten[d]s that the items that he took and damaged were
his sole property.”
B. Standard of Review
¶ 11 We review jury instructions de novo to determine whether, as
a whole, they accurately informed the jury of the governing law.
Riley v. People, 266 P.3d 1089, 1092-93 (Colo. 2011). If the jury
instructions properly inform the jury of the law, the district court
has “broad discretion to determine the form and style of jury
instructions.” Day v. Johnson, 255 P.3d 1064, 1067 (Colo. 2011).
4
Accordingly, we review a trial court’s decision concerning a
proposed jury instruction for an abuse of discretion and will not
disturb the ruling unless it is manifestly arbitrary, unreasonable, or
unfair. Id.
¶ 12 When a defendant objects to the trial court’s ruling on a jury
instruction, we review for nonconstitutional harmless error and will
thus affirm if “there is not a reasonable probability that the error
contributed to the defendant’s conviction.” People v. Garcia, 28
P.3d 340, 344 (Colo. 2001) (quoting Salcedo v. People, 999 P.2d
833, 841 (Colo. 2000)).
C. Applicable Law
|
{
"pile_set_name": "FreeLaw"
}
|
477 F.2d 598
Zukowskiv.State Bar Grievance Board, State Bar ofMichigan
73-1072
UNITED STATES COURT OF APPEALS Sixth Circuit
4/18/73
1
E.D.Mich.
AFFIRMED
|
{
"pile_set_name": "FreeLaw"
}
|
ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of --
)
)
_ ) ASBCA N°' 60315
)
)
Under Contract No. HTC71 l-l4-D-R033
APPEARANCE FOR THE APPELLANT: _
President
APPEARANCES FOR THE GOVERNMENT: Jeffrey P. Hildebrant, Esq.
Air Force Deputy Chief Trial Attomey
Lt Col Mark E. Allen, USAF
Jason R. Smith, Esq.
Trial Attomeys
OPINlON BY ADMINISTRATIVE JUDGE D’ALESSANDRIS ON
APPELLANT’S MOTION FOR RECONSIDERAT]ON
Appellant _ (-) has timely filed a motion
for reconsideration of our 21 November 2016 decision granting the govemment’s
motion for summary judgment and denying this appeal.
-, ASBCA No. 60315, 1(»1 BCA 11 36,569. Familiariiy with our decision is
presumed
In deciding a motion for reconsideration, we examine whether the motion is
based upon newly discovered evidence, mistakes in our findings of fact, or errors of
law. Zulco International, lnc., ASBCA No. 55441, 08-1 BCA 1| 33,799 at 167,319. A
motion for reconsideration does not provide the moving party the opportunity to
reargue its position or to advance arguments that properly should have been presented
in an earlier proceeding See Dixon v. Shz`nseki, 741 F.3d 1367, 1378 (Fed. Cir. 2014).
We do not grant motions for reconsideration absent a compelling reason. J.F. Taylor,
Inc., ASBCA Nos. 56105, 56322, 12-2 BCA 11 35,125 at 172,453.
- argues in its motion for reconsideration that the government breached the
contract by violating PAR 52.233-3, PROTEST AFTER AWARD (AUG 1996) for failing to
cancel the stop-work order or terminating the contract for convenience after the
post-award protest period (app. mot. at l, 8). In our decision, we addressed this same
argument and stated that “the suspension of work and termination for convenience
clauses provide no relief when no work was ordered under an [indefinite-delivery,
indefinite-quantity] contract and the contractor has been paid the minimum contract
value.” _, 16-1 BCA 11 36,569 ar 178,109.
-, in its reply, acknowledges that part of our decision cited above, but
argues that the government should still pay costs which it incurred after the suspension
of work was allegedly lifted (app. reply br. at 7). However, all of the costs incurred
were considered in our decision and found to be generated by tasks which was
already expected to do under the terms of the contract.
16-1 BCA il 36,569 at 178,110-11.
3
We conclude - has not shown any compelling reason to modify our original
decision, as - merely reargues its original position relying on the same facts.
CONCLUSION
For the reasons stated above, -’s motion for reconsideration is denied.
Dated: 15 March 2017
DAVID D’ALESSANDRIS
Administrative Judge
Armed Services Board
of Contract Appeals
Iconcur% I concur
MARK N. STEMPLER / RICHARD SHACKLEFORD
Administrative Judge Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed services Board of Contract Appeals in ASBCA Ne. 60315, Appeai ef-
_, rendered in conformance with the Board’s Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
|
{
"pile_set_name": "FreeLaw"
}
|
United States Court of Appeals
For the Eighth Circuit
___________________________
No. 12-3842
___________________________
Barbara Hager
lllllllllllllllllllll Plaintiff - Appellee
v.
Arkansas Department of Health; Namvar Zohoori, individually and in his official capacity
lllllllllllllllllllll Defendants - Appellants
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
____________
Submitted: September 24, 2013
Filed: November 14, 2013
____________
Before LOKEN, COLLOTON, and BENTON, Circuit Judges.
____________
BENTON, Circuit Judge.
Barbara Hager was fired from the Arkansas Department of Health by her
supervisor, Dr. Namvar Zohoori. Hager sued Dr. Zohoori and the Department for
statutory and constitutional violations. The district court granted, in part, their
motion to dismiss. They appeal. Having jurisdiction under 28 U.S.C. § 1291 over
Dr. Zohoori’s appeal, this court reverses and remands.
I.
Hager claims that in May 2011, her branch chief and supervisor, Dr. Zohoori,
instructed her to cancel a doctor’s appointment (necessary, she says, to prevent
cataracts) in order to discuss a report. When she refused, she alleges Dr. Zohoori
became irritated and falsely claimed she was insubordinate and disrespectful. Four
days later, he terminated her without explanation.
Hager sued Dr. Zohoori, in his individual and official capacities, and the
Department alleging violations of Title VII of the Civil Rights Act of 1964, the Equal
Protection and Due Process Clauses of the Constitution (§ 1983 claim), the Age
Discrimination and Employment Act, the Rehabilitation Act, and the Family and
Medical Leave Act (FMLA).
Dr. Zohoori and the Department moved to dismiss for failure to state a claim
and sovereign immunity. The district court denied their motion in part, allowing three
claims against Dr. Zohoori in his individual capacity (§ 1983 gender discrimination,
FMLA “interference,” and FMLA “retaliation”) and two claims against the
Department (Title VII and Rehabilitation Act). They appeal.
II.
Hager objects to this court’s jurisdiction over Dr. Zohoori’s appeal, arguing it
turns on issues of factual sufficiency. A denial of qualified immunity is an appealable
“final decision” only “to the extent it turns on an issue of law.” Mitchell v. Forsyth,
472 U.S. 511, 530 (1985). Hager relies on cases reviewing a denial of summary
judgment based on qualified immunity. See Johnson v. Jones, 515 U.S. 304, 313-14
(1995) (holding that where a district court’s summary judgment order on qualified
immunity turns on the issue of evidence sufficiency—“which facts a party may, or
-2-
may not, be able to prove at trial”—the order is not appealable); Powell v. Johnson,
405 F.3d 652, 654-55 (8th Cir. 2005). In Ashcroft v. Iqbal, the Supreme Court
determined the jurisdiction of a court of appeals in a case like Hager’s—denial of a
motion to dismiss based on qualified immunity:
As a general matter, the collateral-order doctrine may have expanded
beyond the limits dictated by its internal logic and the strict application
of the criteria set out in Cohen. But the applicability of the doctrine in
the context of qualified-immunity claims is well established; and this
Court has been careful to say that a district court’s order rejecting
qualified immunity at the motion-to-dismiss stage of a proceeding is a
“final decision” within the meaning of § 1291. Behrens, 516 U.S., at
307, 116 S. Ct. 834.
Applying these principles, we conclude that the Court of Appeals had
jurisdiction to hear petitioners’ appeal. The District Court’s order
denying petitioners’ motion to dismiss turned on an issue of law and
rejected the defense of qualified immunity. It was therefore a final
decision “subject to immediate appeal.” Ibid. Respondent says that “a
qualified immunity appeal based solely on the complaint’s failure to
state a claim, and not on the ultimate issues relevant to the qualified
immunity defense itself, is not a proper subject of interlocutory
jurisdiction.” Brief for Respondent Iqbal 15 (hereinafter Iqbal Brief).
In other words, respondent contends the Court of Appeals had
jurisdiction to determine whether his complaint avers a clearly
established constitutional violation but that it lacked jurisdiction to pass
on the sufficiency of his pleadings. Our opinions, however, make clear
that appellate jurisdiction is not so strictly confined.
Iqbal, 556 U.S. 662, 672-73 (2009).
-3-
Here, Dr. Zohoori challenges the sufficiency of Hager’s pleadings to state §
1983, FMLA “interference,” and FMLA “retaliation” claims. This is an issue of law
over which this court has jurisdiction. See id. at 672-74; Bradford v. Huckabee, 394
F.3d 1012, 1015 (8th Cir. 2005). See also Rondigo, L.L.C. v. Township of
Richmond, 641 F.3d 673, 679 (6th Cir. 2011).
III.
This court reviews de novo the denial of a motion to dismiss on the basis of
qualified immunity. Bradford, 394 F.3d at 1015. A complaint must “state a claim
to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007). Under Federal Rule of Civil Procedure 12(b)(6), the factual allegations
in the complaint are accepted as true and viewed most favorably to the plaintiff.
Gross v. Weber, 186 F.3d 1089, 1090 (8th Cir. 1999). Courts must not presume the
truth of legal conclusions couched as factual allegations. Papasan v. Allain, 478 U.S.
265, 286 (1986). Courts should dismiss complaints based on “labels and conclusions,
and a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S.
at 555.
Under the doctrine of qualified immunity, a court must dismiss a complaint
against a government official in his individual capacity that fails to state a claim for
violation of “clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). See also Iqbal, 556 U.S. at 685; Mitchell, 472 U.S. at 526 (“Unless the
plaintiff’s allegations state a claim of violation of clearly established law, a defendant
pleading qualified immunity is entitled to dismissal before the commencement of
discovery.”). A court considers whether the plaintiff has stated a plausible claim for
violation of a constitutional or statutory right and whether the right was clearly
established at the time of the alleged infraction. Powell, 405 F.3d at 654-55. See
Pearson v. Callahan, 555 U.S. 223, 236 (2009) (“[D]istrict courts and the courts of
-4-
appeals should be permitted to exercise their sound discretion in deciding which of
the two prongs of the qualified immunity analysis should be addressed first in light
of the circumstances in the particular case at hand.”).
A.
The § 1983 claim against Dr. Zohoori individually (Count I) alleges that Hager
was “a victim of gender discrimination . . . and has been denied her right of equal
protection of the law and due process of the law.” Specifically, she contends she
“was discharged under circumstances summarily [sic] situated nondisabled males .
. . were not.”
“[T]he Equal Protection Clause requires that the government treat such
similarly situated persons alike.” Keevan v. Smith, 100 F.3d 644, 648 (8th Cir.
1996), citing City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439
(1985); Klinger v. Department of Corrs., 31 F.3d 727, 731 (8th Cir. 1994). Absent
evidence of direct discrimination, courts apply the McDonnell Douglas burden-
shifting analysis to claims of employment discrimination under the Equal Protection
Clause. Lockridge v. Board of Trs. of Univ. of Arkansas, 315 F.3d 1005, 1010 (8th
Cir. 2003) (en banc). Under McDonnell Douglas, a prima facie case of discrimination
requires that a plaintiff prove: “(1) membership in a protected group; (2)
qualification for the job in question; (3
|
{
"pile_set_name": "FreeLaw"
}
|
58 Cal.App.3d 439 (1976)
129 Cal. Rptr. 797
L. GENE ALLARD, Plaintiff, Cross-defendant and Respondent,
v.
CHURCH OF SCIENTOLOGY OF CALIFORNIA, Defendant, Cross-complainant and Appellant.
Docket No. 45562.
Court of Appeals of California, Second District, Division Two.
May 18, 1976.
*443 COUNSEL
Morgan, Wenzel & McNicholas, John P. McNicholas, Gerald E. Agnew, Jr., and Charles B. O'Reilly for Plaintiff, Cross-defendant and Respondent.
Levine & Krom, Meldon E. Levine, Murchison, Cumming, Baker & Velpmen, Murchison, Cumming & Baker, Michael B. Lawler, Tobias C. Tolzmann and Joel Kreiner for Defendant, Cross-complainant and Appellant.
OPINION
BEACH, J.
L. Gene Allard sued the Church of Scientology for malicious prosecution. Defendant cross-complained for conversion. A jury verdict and judgment were entered for Allard on the complaint for $50,000 in compensatory damages and $250,000 in punitive damages. Judgment was entered for Allard and against the Church of Scientology on the cross-complaint. Defendant-cross complainant appeals from the judgment.
FACTS:
The evidence in the instant case is very conflicting. We relate those facts supporting the successful party and disregard the contrary showing. (Nestle v. City of Santa Monica, 6 Cal.3d 920, 925-926 [101 Cal. Rptr. 568, 496 P.2d 480].)
In March 1969, L. Gene Allard became involved with the Church of Scientology in Texas. He joined Sea Org in Los Angeles and was sent to San Diego for training. While there, he signed a billion-year contract agreeing to do anything to help Scientology and to help clear the planet of the "reactive people." During this period he learned about written policy directives that were the "policy" of the church, emanating from L. Ron Hubbard, the founder of the Church of Scientology.[1] After training on the ship, respondent was assigned to the Advanced Organization in Los Angeles, where he became the director of disbursements. He later became the Flag Banking Officer.
*444 Alan Boughton, Flag Banking Officer International, was respondent's superior. Only respondent and Boughton knew the combination to the safe kept in respondent's office. Respondent handled foreign currency, American cash, and various travelers' checks as part of his job.
In May or June 1969, respondent told Boughton that he wanted to leave the church. Boughton asked him to reconsider. Respondent wrote a memo and later a note; he spoke to the various executive officers. They told him that the only way he could get out of Sea Org was to go through "auditing" and to get direct permission from L. Ron Hubbard. Respondent wrote to Hubbard. A chaplain of the church came to see him. Lawrence Krieger, the highest ranking justice official of the church in California, told respondent that if he left without permission, he would be fair game and "You know we'll come and find you and we'll bring you back, and we'll deal with you in whatever way is necessary."
On the night of June 7 or early morning of June 8, 1969, respondent went to his office at the Church of Scientology and took several documents from the safe. These documents were taken by him to the Internal Revenue Service in Kansas City; he used them to allege improper changes in the records of the church. He denies that any Swiss francs were in the safe that night or that he took such Swiss francs. Furthermore, respondent denies the allegation that he stole various travelers' checks from the safe. He admitted that some travelers' checks had his signature as an endorsement, but maintains that he deposited those checks into an open account of the Church of Scientology. There is independent evidence that tends to corroborate that statement. Respondent, having borrowed his roommate's car, drove to the airport and flew to Kansas City, where he turned over the documents to the Internal Revenue Service.
Respondent was arrested in Florida upon a charge of grand theft. Boughton had called the Los Angeles Police Department to report that $23,000 in Swiss francs was missing. Respondent was arrested in Florida; he waived extradition and was in jail for 21 days. Eventually, the charge was dismissed. The deputy district attorney in Los Angeles recommended a dismissal in the interests of justice.[2]
*445 CONTENTIONS ON APPEAL:
1. Respondent's trial counsel engaged in flagrant misconduct throughout the proceedings below and thereby deprived appellant of a fair trial.
2. The verdict below was reached as a result of (a) counsel's ascription to appellant of a religious belief and practices it did not have and (b) the distortion and disparagement of its religious character, and was not based upon the merits of this case. To allow a judgment thereby achieved to stand would constitute a violation of appellant's free exercise of religion.
3. Respondent failed to prove that appellant maliciously prosecuted him and therefore the judgment notwithstanding the verdict should have been granted.
4. The refusal of the trial court to ask or permit voir dire questions of prospective jurors pertaining to their religious prejudices or attitudes deprived appellant of a fair trial.
5. It was prejudicial error to direct the jury, in its assessment of the malicious prosecution claim, to disregard evidence that respondent stole appellant's Australian and American Express travelers' checks.
6. The order of the trial court in denying to appellant discovery of the factual basis for the obtaining of a dismissal by the district attorney of the criminal case People v. Allard was an abuse of discretion and a new trial should be granted and proper discovery permitted.
7. Respondent presented insufficient evidence to support the award of $50,000 in compensatory damages which must have been awarded because of prejudice against appellant.
8. Respondent failed to establish corporate direction or ratification and also failed to establish knowing falsity and is therefore not entitled to any punitive damages.
9. Even if the award of punitive damages was proper in this case, the size of the instant reward, which would deprive appellant church of more *446 than 40 percent of its net worth, is grossly excessive on the facts of this case.
10. There was lack of proper instruction regarding probable cause.[3]
DISCUSSION:
1. There was no prejudicial misconduct by respondent's trial counsel, and appellant was not deprived of a fair trial.
Appellant claims that it was denied a fair trial through the statements, questioning, and introduction of certain evidence by respondent's trial counsel. Love v. Wolf, 226 Cal. App.2d 378 [38 Cal. Rptr. 183], is cited as authority.
We have reviewed the entire record and find appellant's contentions to be without merit. Several of counsel's individual statements and questions were inappropriate. However, there often were no objections by counsel for appellant where an objection and subsequent admonition would have cured any defect; or there was an objection, and the trial court judiciously admonished the jury to disregard the comment. Except for these minor and infrequent aberrations, the record reveals an exceptionally well-conducted and dispassionate trial based on the evidence presented.
As in Stevens v. Parke, Davis & Co., 9 Cal.3d 51, 72 [107 Cal. Rptr. 45, 507 P.2d 653], a motion for a new trial was made, based in part upon the alleged misconduct of opposing counsel at trial. (1) What was said in Stevens applies to the instant case. "`A trial judge is in a better position than an appellate court to determine whether a verdict resulted wholly, or in part, from the asserted misconduct of counsel and his conclusion in the matter will not be disturbed unless, under all the circumstances, it is plainly wrong.' [Citation.] From our review of the instant record, we agree with the trial judge's assessment of the conduct of plaintiff's counsel and for the reasons stated above, we are of the opinion that defendant has failed to demonstrate prejudicial misconduct on the part of such counsel." (Stevens v. Parke, Davis & Co., supra, 9 Cal.3d at p. 72.)
2. The procedure and verdict below does not constitute a violation of appellant's First Amendment free exercise of religion.
*447 (2) Appellant contends that various references to practices of the Church of Scientology were not supported by the evidence, were not legally relevant, and were unduly prejudicial. The claim is made that the trial became one of determining the validity of a religion rather than the commission of a tort.
The references to which appellant now objects were to such practices as "E-meters," tin cans used as E-meters, the creation of religious doctrine purportedly to "get" dissidents, and insinuations that the Church of Scientology was a great money making business rather than a religion.
The principal issue in this trial was one of credibility. If one believed defendant's witnesses, then there was indeed conversion by respondent. However, the opposite result, that reached by the jury, would naturally follow if one believed the evidence introduced by respondent. Appellant repeatedly argues that the introduction of the policy statements of the church was prejudicial error. However, those policy statements went directly to the issue of credibility. Scientologists were allowed to trick, sue, lie to, or destroy "enemies." (Exhibit 1.) If, as he claims, respondent was considered to be an enemy, that policy was indeed relevant to the issues of this case. That evidence well supports the jury's implied conclusion that respondent had not taken the property of the church,
|
{
"pile_set_name": "FreeLaw"
}
|
798 So.2d 646 (2001)
Charles SHARRIEF and Millie Sharrief as personal representatives of Quanetta M. Buchannon, deceased
v.
Rebecca GERLACH, M.D.
1991732.
Supreme Court of Alabama.
April 20, 2001.
*648 Sherryl Snodgrass Caffey, Huntsville, for appellants.
John S. Key and Jenny L. McLeroy of Eyster, Key, Tubb, Weaver & Roth, L.L.P., Decatur, for appellee.
HARWOOD, Justice.
Charles Sharrief and Millie Sharrief, as administrators of the estate of Quanetta M. Buchannon, deceased, sued Dr. Rebecca Gerlach, Dr. Charles Giddens, and Jackson County Hospital, seeking compensatory and punitive damages on allegations of a wrongful death, in the defendants' providing medical care to Buchannon.
The trial court entered an "Order of Referral to Mediation." During mediation, the plaintiffs' settled their claims against Dr. Giddens and Jackson County Hospital; the court dismissed those defendants pursuant to a motion and joint stipulation for *649 dismissal. Although he was no longer a party to this case, Dr. Giddens was later a witness at trial.
Trial of the plaintiffs' claims against Dr. Gerlach began on September 27, 1999. When Dr. Gerlach was called by the plaintiffs as their first witness, she ran out of the courtroom. The trial judge offered the plaintiffs the option of continuing the trial in Dr. Gerlach's absence, but they declined to do so. The trial court then declared a mistrial. The plaintiffs then made a motion to tax costs to the defendant, but the trial court denied the motion, on the rationale that the plaintiffs had refused to proceed with the trial in the defendant's absence.
A second trial began on January 24, 2000. On January 27, 2000, the jury returned a verdict for Dr. Gerlach. The trial court entered a judgment based on that verdict. The plaintiffs, without first informing the trial court, subpoenaed the jurors for depositions, based on a suspicion that juror misconduct had occurred during the trial. When the trial court became aware of the subpoenas, it entered an order quashing them. The plaintiffs then filed a "Motion to Alter, Amend, or Vacate" the order quashing the subpoenas, or in the alternative, a "Motion to Take Depositions of Jurors" and a "Motion for Enlargement of Time." The plaintiffs also filed a "Motion to Vacate the Judgment," a "Motion for a New Trial," a "Motion for Post Judgment Hearing," and a "Renewal of Motion to Take Deposition Testimony of Jurors." In response, Dr. Gerlach filed a "Motion for Protective Order" and a "Motion to Strike Affidavits of Mr. Sharrief and Jurors." The trial court heard arguments on all the motions at the same time; it denied all of the plaintiffs' motions, and granted all of Dr. Gerlach's motions.
The plaintiffs appealed. They make a number of disparate arguments; we summarize them into four basic arguments: (1) that the trial court erred in denying their motion to vacate the judgment, or, in the alternative, for a new trial, because, they contend, the jury verdict was plainly and palpably wrong; (2) that the trial court committed reversible error by denying the plaintiffs' posttrial motions concerning discovery regarding jury deliberations; (3) that the trial court committed reversible errors during the trial; and (4) that the trial court erred in denying their motion to tax costs to Dr. Gerlach after the first trial had ended.[1]
The record shows that Buchannon, age 19, was brought to the Jackson County Hospital emergency room at 9:05 p.m. on July 2, 1993. She had been suffering from vomiting, nausea, and diarrhea for three days. Dr. Gerlach, an emergency-room physician, obtained Buchannon's medical history and examined her. Buchannon's medical history showed that she had delivered a child by cesarean section on June 27, 1993, at Hellen Keller Hospital in Muscle Shoals. The baby had been delivered by Dr. Jenny Gapultoes. (Dr. Gapultoes and Hellen Keller Hospital were not involved in this case.) Dr. Gerlach's examination indicated that Buchannon was suffering from endometritis, an infection of the uterus, resulting from the cesarean section performed five days earlier. Dr. Gerlach then telephoned Dr. Giddens, the obstetrician-gynecologist ("Ob/Gyn") on call for Jackson County Hospital that *650 night, to discuss the case. Dr. Giddens had also been Buchannon's Ob/Gyn up until two weeks before the delivery, but because Dr. Gapultoes had delivered Buchannon's baby, Dr. Giddens was no longer considered her attending physician. Dr. Gerlach informed Dr. Giddens of Buchannon's condition and of her test results, informed him that Buchannon had requested that he be present, and asked him to come in on Buchannon's behalf. Dr. Giddens declined to come to the emergency room. Dr. Gerlach then advised Dr. Giddens that her recommended course of treatment would include a shot of Rocephin,[2] 1 gram, by intramuscular injection, and a prescription of Doxycycline.[3] Dr. Giddens concurred with the recommended course of treatment. Dr. Gerlach further proposed that Buchannon be released and that she follow up with an Ob/Gyn within a few days. Dr. Gerlach then asked Dr. Giddens to do a "follow-up" examination with Buchannon in 2-4 days, but he declined that request, recommending instead that Buchannon be instructed to return to the physician who had delivered her baby. Dr. Giddens then approved Dr. Gerlach's recommendations for treatment, and that treatment was administered. Buchannon was released from the hospital at 10:45 p.m. The next morning, Buchannon became unconscious and unresponsive; she was rushed by ambulance to Scottsboro Medical Center. On July 3, 1993 at 7:17 a.m., Buchannon was pronounced dead. The official cause of her death was septic shock due to endometritis due to cesarean section.
I. The Verdict and the Denial of the Plaintiffs' Postjudgment Motions
We first consider whether the trial court erred in denying the plaintiffs' motion for a new trial. The plaintiffs based that motion on the argument that the jury's verdict was not supported by the evidence.
"[W]hen the evidence meets the `sufficiency' test, jury verdicts are presumed correct, and this presumption is strengthened by the trial court's denial of a motion for new trial. Therefore, a judgment based upon a jury verdict and sustained by the denial of a post-judgment motion for a new trial, will not be reversed on a weight-of-the-evidence ground unless it is `plainly and palpably' wrong. Ashbee v. Brock, 510 So.2d 214 (Ala.1987). See, also, Jawad v. Granade, 497 So.2d 471 (Ala.1986)."
Alpine Bay Resorts, Inc. v. Wyatt, 539 So.2d 160, 162-63 (Ala.1988).
Thus, this Court will reverse the trial court's denial of the plaintiffs' motion for a new trial only if this Court concludes that the verdict was plainly and palpably wrong. Generally, in order to prove liability in a medical-malpractice case, the plaintiff must show (1) the appropriate standard of care for the treatment supplied by the defendant health-care provider, (2) a deviation from that standard of care by the defendant, and (3) a proximate causal connection between the injury alleged by the plaintiff and the defendant's breach of the standard of care. Looney v. Davis, 721 So.2d 152 (Ala.1998). The plaintiffs presented the testimony of Dr. William E. Garrett, assistant professor of surgery at Meharry Medical College. Dr. Garrett testified that Dr. Gerlach's examination and treatment of Buchannon was below the standard of care. However, Dr. Sherry *651 Squires, associate medical director of the emergency department at Huntsville Hospital, testifying as an expert on behalf of Dr. Gerlach, stated that Dr. Gerlach's treatment of Buchannon met the standard of care. The resolution of conflicts in the evidence rests solely with the trier of fact, in this case, the jury. Jones v. Baltazar, 658 So.2d 420 (Ala.1995); James v. Woolley, 523 So.2d 110, 112 (Ala.1988).
The record contains substantial evidence to support the jury verdict; thus, we must conclude that the verdict was not plainly and palpably wrong. Stokes v. Long-Lewis Ford, Inc., 549 So.2d 51, 52 (Ala.1989); Merrell v. Joe Bullard Oldsmobile, Inc., 529 So.2d 943, 946 (Ala.1988). The trial court did not err in denying the plaintiffs' motion for a new trial.
II. Posttrial Motions Concerning Discovery Regarding Jury Deliberations
We next consider the plaintiffs' argument that the trial court erred in denying their posttrial motions seeking discovery regarding the jury's deliberations. These motions included a motion to subpoena jurors, a motion to vacate the order quashing the juror subpoenas, a motion to take juror depositions, a motion for enlargement of time
|
{
"pile_set_name": "FreeLaw"
}
|
75 Ill. App.2d 144 (1966)
220 N.E.2d 590
Decatur and Macon County Hospital Association, a Corporation Not For Profit of Illinois, for the Use of Niagara Fire Insurance Company, Phoenix Assurance Company, Standard Fire Insurance Company, Rochester American Insurance Company, American Insurance Company, United States Fire Insurance Company, Hartford Fire Insurance Company, and Merchants Fire Assurance Corporation, Plaintiff-Appellee,
v.
Erie City Iron Works, a Foreign Corporation, T.A. Brinkoetter & Sons, Inc., a Foreign Corporation, and Illinois Power Company, an Illinois Corporation, Defendants, Erie City Iron Works, a Foreign Corporation, Defendant-Appellant.
Gen. No. 10,679.
Illinois Appellate Court Fourth District.
September 26, 1966.
Rehearing denied October 24, 1966.
*145 *146 Earl S. Hodges, of Springfield, and Greanias & Owen, of Decatur (Marshall A. Susler, of counsel), for appellant.
Giffin, Winning, Lindner & Newkirk, of Springfield (James M. Drake, of counsel), for appellee.
TRAPP, P.J.
Defendant Erie City Iron Works, hereinafter designated Erie, appeals from a judgment in the sum of $30,818.50 entered in favor of the plaintiff upon the verdict of a jury against Erie and T.A. Brinkoetter & Sons, Inc. Other disposition has been made as to the case against the latter and we consider only the appeal of Erie.
Plaintiff's action was for property damage in the approximate amount of the judgment incurred as the result of the explosion of a gas-fired boiler manufactured by Erie and installed by Brinkoetter. At the time of the explosion installation had just been completed and was at the stage of the initial start-up and adjustment of the boiler. Title to it had not yet passed to the plaintiff.
The defendant's theory is that defendant was not guilty of the negligence that was the proximate cause of plaintiff's damages; that the court should have directed a verdict in favor of this defendant, or granted defendant's post-trial motion for judgment notwithstanding the verdict of the jury or, in the alternative, should have granted defendant a new trial of the issues, because of error committed by the court in submitting, to the jury, both Count I and Count II of plaintiff's complaint, which respectively were predicated upon a res ipsa loquitur theory and specific negligence theory; that there was error by the court in denying defendant's motion for mistrial because of prejudicial conduct of counsel; that conduct of *147 a juror was prejudicial to defendant; and that there was error by the court in giving certain instructions to the jury; and other errors hereinafter discussed.
Plaintiff purchased the boiler as a "package" boiler fabricated by Erie at its plant and shipped assembled for installation as a complete unit with automatic firing controls built on.
The fire control unit and the main motorized valve were not manufactured by Erie but were purchased by it and affixed to the fabricated boiler. The Brinkoetter contract called for it to install the boiler and connect it to the line bringing gas into the building.
In making the installation, Brinkoetter did not install what has been called a "dirt leg," i.e., a trap consisting of a length of pipe extending beyond the point where a vertical gas line is turned so that it travels horizontally. Its function is to catch condensed moisture and debris in the gas line. Plaintiff had retained consulting engineers to design and supervise installation of the boiler. The schematic drawing provided by the engineer did not show a "dirt leg." The latter testified that the contractor should install a "dirt leg" whether drawn in the plans or not. Officers of Brinkoetter say that it puts in dirt legs when the plans call for them, otherwise it does not.
Neither the fabricated boiler nor the connecting line, as installed, included a "strainer," which is described as a distinctive appearing section of pipe containing a screen, the function of which is to catch debris which might be carried through the line by the flow of gas. When used, it is installed in the line ahead of the valves and controls. A brochure of the valve manufacturer recommended that a strainer be placed ahead of the main valve. Such a strainer was not included in the unit fabricated by Erie. The consulting engineer's schematic drawing did not include a strainer. He testified that he would have included it if he had known that a strainer was recommended. An officer of Brinkoetter testified that he had never heard *148 of a strainer in a gas line. In behalf of the latter, its foreman and employes testified that as the gas line was being installed, steps were taken to knock loose the scale and clean the connecting pipe. It appears that the installation was nearly completed when the contractor was advised by the gas company foreman that it would be necessary to install a regulator, i.e., a device which lowered the pressure from the 35-pound pressure in the main to some 10 pounds as specified by the boiler. A used regulator was available at the hospital and was installed. At first it did not function, but after some adjustment was observed to be reducing the pressure. It was not tested after the explosion. In installing the regulator at this time, it was necessary to cut the gas line with a torch and weld on a section of pipe. It does not appear what, if anything, was done to inspect for and remove debris in the pipe following this operation. There is some conflict in the evidence as to whether or not welding slag would enter the pipe by reason of this work.
Under the terms of its contract with Erie, plaintiff elected to have the services of a start-up engineer. Upon notification of the completion of the installation such engineer, one Enders, was sent by Erie. The explosion in issue occurred at 11:40 a.m. on Thursday, September 25, 1958. In summary, it appears that Enders had arrived on the preceding Tuesday, that the boiler was started up and fired for some 20 hours and then shut down, and that on the morning of the 25th it had been started up and fired for some 2 hours preceding the explosion. Enders died following the explosion, apparently as the result of injuries sustained.
With regard to the things done during this period, one Binns, a member of the hospital maintenance staff, testified that Enders started the boiler operation, handled the controls and made adjustments, and that immediately prior to the explosion Enders was making an adjustment of the water level in the boiler. Charles Fearn, foreman *149 of the gas distribution crew of the utility company which was working on the exterior gas line, testified that he had been in the boiler room during the morning and Enders had told him that the boiler was on low fire or "no load" firing, and that he was going to test the boiler on high fire, asking Fearn to time the meter outside so that there could be a measurement of the cubic feet of gas entering the boiler on high fire. No specific arrangement was made as to when this would be done.
Following the explosion, a State boiler inspector, and representatives of the interested parties, together with engineers and experts retained by them, assembled at the scene to examine the boiler which had been kept undisturbed. Several of them testified that they had noticed the absence of the dirt leg and the screen in the gas line connected to the boiler. The main valve was examined as to its external indicator and the testimony varies from the statement that it was apparently closed, through slightly open to one-third open. The boiler inspector testified that he assumed that it was open. It does not appear that any organized procedure was followed so that each expert present observed all of the matters testified to.
The main valve was then disassembled. Most witnesses testified to observing some scale and several pieces of welding slag on both the upstream and downstream sides of the valve.
There is testimony that upon examination of the several parts of the valve, a resilient neoprene seal was observed to be indented and that the stainless steel seat of the valve was scored to a depth of 1/16th of an inch or so, the width of the indentation being that of a blade of a table knife. There is other testimony that the seat bore only normal scratches. It does not appear that tests were made to determine whether the indentations on the neoprene seal coincided with the scoring of the valve seat. At the trial the neoprene seal no longer bore any indentation. *150 This was explained as being due to the resilient nature of the substance. The steel valve seat was not produced at the trial.
The consensus of the testimony is that there was a gas explosion followed by an explosion of the boiler itself. The opinion testimony is that the first explosion resulted from the ignition of a surplus of gas within the combustion chamber, which gas was somehow ignited. Paul Wilson, an employe of Erie in charge of their service department, testified that he did not believe it possible to find the actual cause of the majority of explosion cases, and George Harper, a professor of engineering at the University of Illinois, testified that in such an explosion things are so disrupted that it cannot be ascertained with certainty what happened, but that it was necessary to draw deductions.
From the record it appears that a variety of factors inducing the explosion may have existed. There is, of course, the contradictory nature of the testimony as to whether or not the motorized main valve was closed or open, whether or not slag from welding had lodged in the main valve so that it was not completely closed, and whether such slag would be sufficient to hold the valve open with the pressures concerned without distorting the valve stem, which apparently was in normal condition.
There is
|
{
"pile_set_name": "FreeLaw"
}
|
994 A.2d 1040 (2010)
202 N.J. 43
STATE
v.
McCARY.
Supreme Court of New Jersey.
May 19, 2010.
Petition for Certification Denied.
|
{
"pile_set_name": "FreeLaw"
}
|
MARVIN T. BURTON, JR. Defendant Below, Appellant,
v.
STATE OF DELAWARE, Plaintiff Below, Appellee.
No. 335, 2008
Supreme Court of Delaware.
Submitted: January 28, 2009.
Decided: March 4, 2009.
Before STEELE, Chief Justice, JACOBS and RIDGELY, Justices.
ORDER
JACK B. JACOBS, Justice.
This 4th day of March 2009, upon consideration of the briefs of the parties and the record in this case, it appears to the Court that:
1. Marvin Burton, the defendant below, appeals from the denial by the Superior Court of a Rule 61 motion for post-conviction relief. On appeal, Burton argues that the trial court erroneously denied that motion which was based, in part, on a claim of ineffective assistance of counsel. Given the serious nature of the charges, the fact that Burton's Rule 61 motion was filed pro se, and that the alleged new evidence has not yet been considered by the Superior Court, we remand for further proceedings limited to Burton's ineffective assistance of counsel claim.
2. Burton was arrested on October 6, 2004, and indicted on October 25, 2004 on charges of First Degree Rape, Second Degree Rape and Second Degree Unlawful Sexual Contact. Burton's daughter, the alleged victim, who was eleven years old at the relevant times, claimed that on at least three occasions Burton had sexually abused and raped her. All three incidents allegedly occurred while the victim was staying at Burton's parents' house in 2004, with the two most serious incidents allegedly occurring in August 2004. Trial began on August 8, 2005. On August 11, 2005 Burton was convicted on all charges.
3. Because of prior convictions for Third Degree Burglary and Third Degree Unlawful Sexual Intercourse, the State moved to declare Burton an habitual offender under 11 Del. C. § 4214.[1] On October 28, 2005, the Superior Court declared Burton an habitual offender and sentenced him to life in prison for each of the two Rape charges, plus two additional years imprisonment for the Unlawful Sexual Contact charge. The Superior Court also imposed special conditions, including a no contact order and sex offender registration.
4. After sentencing, defense counsel filed a notice of appeal on Burton's behalf and a motion to withdraw pursuant to Supreme Court Rule 26(c). The State filed a motion to affirm. After reviewing the record, this Court determined that Burton's appeal was "wholly without merit and devoid of any arguably appealable issue" and granted the motion to affirm.[2]
5. On August 16, 2007 Burton moved pro se for post-conviction relief, raising multiple claims including ineffective assistance of counsel.[3] Burton alleged that his trial counsel was incompetent, failed to interview and subpoena key defense witnesses, and did not allow Burton to testify. On September 4, 2007, trial counsel filed a sworn letter memorandum responding to that motion. Trial counsel explained that he did not mislead Burton or refuse to allow him to testify. Rather, he advised Burton not to take the stand for the strategic purpose of avoiding cross-examination on Burton's prior convictions. After receiving that advice, Burton agreed and chose not to testify. Trial counsel further explained that he did, in fact, contact most of the witnesses Burton claimed were not interviewed or subpoenaed, and found that those witnesses either could not provide the testimony Burton claimed, or that they had no information helpful to Burton's defense.
6. On June 3, 2008, the Superior Court denied Burton's motion without a hearing, finding that Burton's arguments were all without merit.[4] On June 30, Burton filed a notice of appeal, pro se, and on August 14, appellate counsel entered an appearance on his behalf.
7. Although Burton advanced numerous claims of error in his motion for post-conviction relief, on appeal he advances only onethat the Superior Court erred by denying his claim of ineffective assistance of counsel. Moreover, Burton limits that claim to the contention that trial counsel was ineffective by failing to contact, properly interview and subpoena material witnesses, and also by refusing to allow Burton to testify at trial.[5]
8. The State has moved to strike certain affidavits and information included in Burton's appendix that were not part of the record on appeal. These affidavits include: (i) a statement by Marvin Burton, Sr. "that he was not contacted, interviewed or subpoenaed concerning the fact that the alleged victim . . . did not live in our residence from late July through September 2004"; and (ii) a statement by Stacie Brittingham (Burton's sister) that she was not interviewed before the day of trial concerning her testimony, and that the alleged victim did not live in her parent's residence from late July through September 2004 and that that issue was not raised in questioning during her testimony at trial. Also included was a statement by Eric Morris that (i) "he was not contacted, interviewed or called as a witness concerning the fact that the alleged victim . . . did not live at Marvin Burton, Sr. and Vivian Burton's residence from late July through September 2004;" and that (ii) "I would also have testified that [the alleged victim] lived with me approximately 3 weeks during the end of July and August 2004 and she stayed with other individuals until the month of September 2004. . . ."
9. As a general matter, the record on appeal may not be supplemented by affidavits relating facts and circumstances that were not fairly presented to the trial court,[6] and we will not consider such supplemental affidavits. For new evidence to be considered, a party should file a motion to remand to the trial court to determine the facts in light of their new evidence.[7] Here, however, Burton moved for post-conviction relief pro se, without the evidence having been considered by the Superior Court. In such circumstances, some leeway should be granted if, in the interests of justice, the new evidence ought to be considered.[8] For that purpose a remand is appropriate.
NOW, THEREFORE, IT IS ORDERED that this matter is remanded to the Superior Court for further proceedings limited to the ineffective assistance of counsel claim. Jurisdiction is not retained.
NOTES
[1] See generally 11 Del. C. § 4214 (providing for sentencing as an habitual criminal).
[2] Burton v. State, 907 A.2d 145, 2006 WL 2434914, at *1 (Del. 2006) (Table).
[3] Burton claimed that: (1) the indictment was illegal; (2) a Batson violation had occurred; (3) a juror had misled the Superior Court during voir dire; (4) a juror drank alcohol during the trial; (5) Burton was not allowed to testify; (6) Burton was not allowed to call witnesses; (7) prosecutorial misconduct occurred; (8) his sentence was illegal; (9) his trial counsel was ineffective; and (10) his trial counsel failed to interview and call material witnesses. See State v. Burton, 2008 WL 2359717 (Del. Super. Ct. June 3, 2008).
[4] See State v. Burton, 2008 WL 2359717, at *1-6.
[5] "Appellant's counsel has reviewed all of the allegations set forth in the Rule 61 Motion and is limiting argument in this opening brief to the fact that [trial counsel] was ineffective by failing to contact, properly interview and subpoena material witnesses for the disputed allegations made by the alleged victim as well as allowing the Appellant to testify during his trial."
[6] Sup. Ct. R. 8; Merritt v. State, 219 A.2d 258, 260 (Del. 1966); Draper v. State, 146 A.2d 796, 800 (Del. 1958); see also Gateley v. Gateley, 832 A.2d 1251, 2003 WL 22282584, at *2 n.7 (Del. Oct. 1, 2003) (Table) (declining to review documents presented for the first time on appeal).
[7] Compare Merritt, 219 A.2d at 260 (remanding the case with authority and instructions to ascertain the facts) with Draper, 146 A.2d at 800 (refusing to consider new evidence on appeal).
[8] See Yancey v. Nat'l Trust Co., Ltd., 712 A.2d 476, 1998 WL 309819 (Del. May 19, 1998) (Table) (Del. 1998) (noting that some degree of leniency should be granted for pro se appeals); see also In re Estate of Hall, 882 A.2d 761, 2005 WL 2473791 (Del. Aug. 26, 2005) (Table) (noting that we allow pro se litigants some leeway).
|
{
"pile_set_name": "FreeLaw"
}
|
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
|
{
"pile_set_name": "FreeLaw"
}
|
3 Md. App. 266 (1968)
238 A.2d 920
MELVIN HENRY GREEN
v.
WARDEN, MARYLAND HOUSE OF CORRECTION.
No. 102, September Term, 1967.
Court of Special Appeals of Maryland.
Decided February 28, 1968.
Before MURPHY, C.J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ.
PER CURIAM:
This is an application for leave to appeal from an order filed on July 21, 1967, by Judge Robert I.H. Hammerman, sitting *268 in the Criminal Court of Baltimore, denying relief sought under the Uniform Post Conviction Procedure Act.
As stated by Judge Hammerman in his memorandum opinion, the applicant raised the following contentions:
1. That petitioner was the subject of an illegal arrest for the reasons that:
a. He was not a resident of the house in which he was arrested,
b. The police had no probable cause to arrest him,
c. That the narcotics were found in the hall of the home in which he was arrested and he was charged with their possession.
2. That the police gave perjured testimony at the time of trial.
3. That he was not properly represented by his court appointed lawyer.
Judge Hammerman stated that:
"Petitioner's counsel conceded at the outset and at the conclusion of the hearing that the first two grounds were not proper subjects for review on Post Conviction, that she understood that these issues were raised at the time of trial, and that she was not pressing them at this time."
The mere fact of an illegal arrest is not grounds for relief under the Uniform Post Conviction Procedure Act, Slater v. Warden, 233 Md. 609, as the legality of the arrest is immaterial where no fruits of the arrest are introduced into evidence at the trial against the accused; Ogle v. Warden, 236 Md. 425, but where the petitioner alleges, as he seems to do in this case, that evidence was seized as a result of the illegal arrest, this constitutes an allegation of an illegal search and seizure and may properly be raised under the Act. Davis v. Warden, 232 Md. 670; Fennell v. Warden. 236 Md. 423; Austin v. Director, 237 Md. 314. Since this issue was not pressed at the hearing, it can be considered as abandoned. Szukiewicz v. Warden, 1 Md. App. 61. However, we note that the lower court found that there was nothing in the testimony of the applicant to indicate *269 that his arrest was illegal. Since applicant did not carry his burden of proof, the arrest must be considered as legal. Thus, the allegation of an illegal search and seizure would also fail since further evidence to support this contention was not offered.
Judge Hammerman states that the rule as to incompetence of counsel is "that it is only when the representation is so deficient as to make a farce out of the trial that an accused is entitled to a new trial." Although this was the former rule in Maryland, the Court of Appeals has expanded this rule in Slater v. Warden, 241 Md. 668, so as to give a more comprehensive definition to that rule. The more preferable rule now is that counsel is incompetent when under all the circumstances of the particular case the petitioner has not been afforded "a genuine and effective representation." Turner v. State, 303 F.2d 507 (4th Cir.1962); Turner v. State, 318 F.2d 852 (4th Cir.1963); Slater v. Warden, supra; Jones v. Warden, 244 Md. 720; Nash v. Warden, 243 Md. 700. This is the rule that is now being followed by the Maryland Court of Special Appeals. Groh v. Warden, 1 Md. App. 674; Charles v. State, 1 Md. App. 222; Norris v. Warden, 1 Md. App. 69; Cherrix v. Warden, 1 Md. App. 65.
However, even under this more comprehensive rule, the trial counsel for applicant was not incompetent. Judge Hammerman found that "the court clearly does not find that (counsel) was in any way incompetent or negligent in the performance of his duties as attorney for the petitioner. Quite the contrary in the case. The court feels that (counsel) did a more than adequate job in defending the petitioner, as the testimony clearly demonstrates."
As to the second contention, we accept the lower court's finding that this was a bald allegation as no evidence was offered to support it at the hearing. Thus it cannot constitute grounds for relief. McCoy v. Warden, 1 Md. App. 108.
Application denied.
|
{
"pile_set_name": "FreeLaw"
}
|
818 F.2d 878
Comegysv.V.A.
87-3018
United States Court of Appeals,Federal Circuit.
1/26/87
MSPB, 31 M.S.P.R. 293
VACATED AND REMANDED
|
{
"pile_set_name": "FreeLaw"
}
|
J-S55030-18
2019 PA Super 59
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
PRINCE ISAAC
Appellant No. 389 EDA 2018
Appeal from the PCRA Order Entered December 21, 2017
In the Court of Common Pleas of Chester County
Criminal Division at No: CP-15-CR-0002120-2007
BEFORE: OLSON, STABILE, JJ., and FORD ELLIOTT, P.J.E.
OPINION BY STABILE, J.: FILED FEBRUARY 26, 2019
Appellant, Prince Isaac, appeals from the December 21, 2017 order
denying relief pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S.A. §§ 9541-46. We affirm.
Appellant represented himself at trial after a defective waiver-of-counsel
colloquy—the trial court never apprised Appellant of the elements of the
charged offenses.1 Appointed direct appeal counsel did not raise this issue.
On collateral review, Appellant claimed direct appeal counsel rendered
____________________________________________
1 “To ensure that the defendant’s waiver of the right to counsel is knowing,
voluntary, and intelligent, the judge […] shall elicit […] that the defendant
understands the nature of the charges against the defendant and the elements
of each of those charges[.]” Pa.R.Crim.P. 121(A)(2)(b).
J-S55030-18
ineffective assistance. The PCRA court originally denied relief, but a three-
judge panel of this Court reversed, concluding that the defective waiver
colloquy was an issue of arguable merit.2 We remanded to the PCRA court for
an assessment of counsel’s strategy and the prejudice, if any, to Appellant.
The PCRA court once again denied relief, and this timely appeal followed.
The prior panel quoted the underlying facts:
[Appellant] and his brother and co-conspirator, Shamek
Hynson [(Hynson)], had a powerful motive to kill the victim, Omar
Reid [(the victim)], on October 18, 2004. The murder was an act
of retaliation against [the victim] for an incident involving another
one of their brothers—Ramek Neal—that took place nearly one
year earlier. On November 5, 2003, at approximately 10:30 p.m.,
Neal and another individual broke into [the victim’s] apartment at
416 Victoria Drive, in the Regency Park complex located in
Coatesville, Chester County, Pennsylvania. Neal brandished a
pistol while demanding [the victim’s] property. [The victim]
fought back and in self-defense shot Neal, leaving Neal paralyzed
from the neck down. This November 2003 incident was the
subject of subsequent family meetings attended by both
[Appellant] and Hynson.
On October 18, 2004, at approximately 11:00 p.m.,
[Appellant] drove Hynson to [the victim’s] apartment at 416
Victoria Drive in a Kia automobile that had been taken from a
couple in Lancaster, Pennsylvania, to be used in the murder.
Hynson got out of the Kia and knocked on [the victim]’s front door.
As [the victim] opened the door, Hynson asked, “Are you Omar?”
and then shot [the victim] six times. Shell casings were ejected
from Hynson’s pistol and left at the murder scene. [The victim]
collapsed and died on top of his five-year-old son, who had been
on the living room floor near the front door. After the shooting,
[Appellant] gestured to Hynson, from inside the Kia, to “hurry up.”
This was observed by a witness looking out the window of her
____________________________________________
2 We affirmed the PCRA court’s denial of relief on Appellant’s remaining issues,
and our Supreme Court denied allowance of appeal. Direct appeal counsel’s
handling of the waiver colloquy is the sole remaining issue.
-2-
J-S55030-18
apartment. Hynson ran to the Kia, which was waiting for him with
the front passenger’s door open. After Hynson got into the Kia,
he closed the door, and [Appellant] sped away from the scene.
A police officer happened to be driving into the Regency Park
complex when a 911 dispatcher advised him of the shooting. The
officer spotted the Kia and gave chase. During the chase, the
murder weapon—a Hi-Point .380—was thrown from the car into
the brush next to a railroad track. Due to the wet roadway,
[Appellant] lost control and crashed the Kia into a ditch.
[Appellant] and Hynson fled in different directions, and neither
was apprehended by police at that time.
Other individuals in [Appellant’s] Buick Riviera (another
getaway vehicle) had been waiting, as planned, near the Regency
Park complex and observed the police chasing the Kia to the
location in Coatesville where [Appellant] had earlier switched from
driving his own car, the Buick, and begun driving the Kia. They
picked up Hynson, and Hynson told them that he had “just shot a
man,” that he and [Appellant] were being chased, and that
[Appellant] was still running from the police. Hynson and others
then drove around Coatesville looking for [Appellant] and trying
to find the gun that had been “tossed” during the getaway chase.
Neither [Appellant] nor the gun was located, so they visited
Ramek Neal to advise him of what happened and then returned to
Lancaster. [Appellant] also made his way back to Lancaster.
When he arrived, he was wet, he had a gash on his head, and his
clothing was ripped. [Appellant] told his friends that, while being
chased by the police, he had crashed the Kia and then had to run
on foot.
[Appellant’s] fingerprints were found on the interior driver’s
door window of the crashed Kia. DNA testing confirmed the
presence of Hynson’s blood on the interior passenger’s side of the
Kia. Gunshot residue was also found inside the Kia. The murder
weapon was found almost a year later by a woman walking her
dog near the railroad tracks along [Appellant’s] escape route.
That weapon was traced back to a straw purchase in North
Carolina made by Tolanda Williams, the mother of Hynson’s child.
Williams testified that during the week before the murder, she
went with [Appellant] and Hynson to several pawn and gun shops
in [Appellant’s] Buick, to be the straw purchaser of guns. The tag
number of [Appellant’s] Buick was written down by one of the
shop owners who became suspicious of one of the transactions.
-3-
J-S55030-18
During cross-examination, the gun shop owner identified
[Appellant] as the driver of the Buick. The Hi-Point .380 murder
weapon was also used by Hynson to shoot Edward Cameron in
Lancaster at approximately 4:30 p.m. on October 18, 2004—less
than seven hours before [the victim] was murdered in Coatesville.
Shell casings from the two shootings were all matched to the Hi-
Point .380 found along the escape route. Cell phone records
indicated that [Appellant’s] cell phone was active and used in the
Coatesville area during and after the time of the murder.
Isaac, 2016 WL 5210891, at *1–2. At the conclusion of a six-day trial, the
jury found Appellant guilty of first-degree murder and conspiracy. On July 8,
2009, the trial court sentenced Appellant to life in prison. This Court affirmed
the judgment of sentence on direct appeal, and our Supreme Court denied
allowance of appeal on August 12, 2012. Appellant filed this timely first PCRA
petition on November 12, 2013.3
Presently, Appellant argues the PCRA court erred because counsel had
no reasonable strategic basis for failing to raise the inadequate waiver colloquy
on direct appeal, and because Appellant would have received a new trial had
counsel challenged the defective waiver colloquy. Appellant’s Brief at 4.
In PCRA appeals, our scope of review is limited to the
findings of the PCRA court and the evidence on the record of the
PCRA court’s hearing, viewed in the
|
{
"pile_set_name": "FreeLaw"
}
|
694 So.2d 674 (1997)
THE MISSISSIPPI BAR
v.
Jimmy D. McGUIRE.
No. 94-BD-00520-SCT.
Supreme Court of Mississippi.
May 15, 1997.
ORDER
This matter is before the Court upon the Motion for Indefinite Suspension Pending Appeal filed by the Mississippi Bar. The complaint involves McGuire's conviction of the crime of filing a false currency reporting form in violation of 26 U.S.C.A. §§ 6050I(f)(1)(B), 7206(1). This Court entered its order on December 15, 1994, granting the Bar's request for indefinite suspension pending appeal.
On January 21, 1997, the Bar provided certification that the Fifth Circuit Court of Appeals affirmed the judgment of the District Court, which affirmed McGuire's conviction, and issued the mandate on October 31, 1996. This Court finds that McGuire has been adjudicated guilty of the offense of filing false currency reporting forms, a felony, and that pursuant to Rule 6, Rules of Discipline, he should be disbarred.
IT IS THEREFORE ORDERED as follows:
1. Jimmy D. McGuire be, and hereby is, DISBARRED from the practice of law.
2. This order shall constitute notice of disbarment in this cause.
3. The Clerk of the Supreme Court of Mississippi shall immediately forward an attested copy of this Order to the Circuit Court Judges and Chancellors in and for Harrison County, Mississippi, and the Senior Judges of each court shall enter this order upon the minutes of their respective courts.
4. The Clerk of the Supreme Court of Mississippi shall immediately forward an attested copy of this Order to the Clerks of the United States District Courts in and for Mississippi, to the Clerk of the United States Fifth Circuit Court of Appeals, and to the Clerk of the Supreme Court.
5. Costs of the formal complaint should be, and hereby are, assessed against Jimmy D. McGuire.
|
{
"pile_set_name": "FreeLaw"
}
|
Order Michigan Supreme Court
Lansing, Michigan
September 30, 2013 Robert P. Young, Jr.,
Chief Justice
146898 Michael F. Cavanagh
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
SHERELL STANLEY, Personal David F. Viviano,
Representative of the ESTATE OF Justices
SHERIDA STANLEY,
Plaintiff-Appellee,
v SC: 146898
COA: 301237
Kalamazoo CC: 2005-000601-NH
KRISHNA MOHAN JAIN, M.D.,
Defendant-Appellant,
and
BORGESS MEDICAL CENTER, E.
ANDERSON, C.R. BEGEMAN, T.
BENSCHEL, M. GALLAGHER, A.
KENDALL, SUZANNE SACKETT-MUMA,
D. E. PEAKE, J. SHINABARGER, Z.
SMITH, CHRIS THOMAS, and L.
VROEGINDENWEY,
Defendants.
_____________________________________/
On order of the Court, the application for leave to appeal the February 19, 2013
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the questions presented should be reviewed by this Court.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
September 30, 2013
h0923
Clerk
|
{
"pile_set_name": "FreeLaw"
}
|
RENDERED: FEBRUARY 18, 2016
TO BE PUBLISHED
oSuprrittr Caurf TArttfurhu
2015-SC-000086-CL
IN RE: F
ROBERT A. WINTER, JR., PLAINTIFF
AND
CAMERON BLAU AND
HONORABLE ALLISON JONES,
INTERVENING PLAINTIFFS
THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY, NORTHERN DIVISION
COVINGTON, CIVIL NO. 14-119-ART
HONORABLE STEPHEN D. WOLNITZEK,
IN HIS OFFICIAL CAPACITY AS CHAIR,
JUDICIAL CONDUCT COMMISSION, ET AL.
OPINION OF THE COURT BY JUSTICE VENTERS
CERTIFYING THE LAW
Pursuant to CR 76.37(1), we granted the certification request of the
United States District Court for the Eastern District of Kentucky (District
Court), to provide the answer under Kentucky law to the following three
questions and the associated sub-questions:
Question 1:
Canon 5A(1)(a) states that a judge or judicial candidate shall not
"campaign as a member of a political organization." What
constitutes "campaign[ing] as a member of a political
organization"? As applied to this case, would it include a
candidate's statements in mailers identifying his political party,
such as "I am the only Republican candidate for Judge" or "I am
the Conservative Republican candidate for Judge"? Would a
candidate's statement that his opponent was "the Democrat
candidate for Judge" or the "Liberal Democrat for Judge" violate
the Canon?
Question 2:
Canon 5A(1)(b) states that a judge or judicial candidate shall not
"act as a leader or hold any office in a political organization." What
constitutes "act[ing] as a leader or hold[ing] any office"? As applied
to this case, would hosting events for a political party violate the
Canon?
Question 3:
Canon 5B(1)(c) states that a judge or judicial candidate "shall not
knowingly, or with reckless disregard for the truth, misrepresent
any candidate's identity, qualifications, present position, or make
any other false or misleading statements." What constitutes a false
statement? As applied to this case, would it include a candidate
who asks voters to "re-elect" her to a second term even though she
was appointed to her first term?
These canons were promulgated by this Court with the objective of
complying with Section 117 of our Constitution requiring that "Justices of the
Supreme Court and judges of the Court of Appeals, Circuit and District Court
shall be elected from their respective districts or circuits on a nonpartisan basis
as provided by law." (Emphasis added.) We interpret this provision of the
Kentucky Constitution as directing that Kentucky's judicial elections be
nonpartisan in truth and substance, and not merely in process and procedure
by the superficial omission of a political party designation on the voting ballot.
Accordingly, we provide the following certification of Kentucky law in response
to the District Court's questions.
2
I. FACTUAL AND PROCEDURAL BACKGROUND
Robert A. Winter, Jr., filed to run in the May 2014 primary election as a
candidate for circuit court judge in the 16th Judicial Circuit (Campbell
County). As part of his campaign strategy, Winter mailed brochures to
registered Republican voters identifying himself as a registered Republican
and, conversely, identifying his opponents as registered Democrats. After the
brochures were sent out, the Kentucky Judicial Conduct Commission (JCC)
notified Winter that it had received complaints that his brochures violated the
Kentucky Code of Judicial Conduct. Winter responded in June 2014 by filing
suit in the District Court against the JCC challenging the constitutionality of
Canons 5A(1)(a) (prohibiting judges and judicial candidates from campaigning
as a member of a political organization) and 5B(1)(c) (prohibiting judges or
judicial candidates from making "false" or "misleading" statements).
During the same election cycle, Cameron Blau entered the race as a
candidate for district court judge in the 17th Judicial District (Campbell
County). Because Blau likewise intended to openly campaign as a Republican
and send brochures likewise identifying himself as a Republican, in October
2014, Blau filed an intervening complaint to join Winter's challenge to Canons
5A(1)(a) and 5B(1)(c). As relevant here, Blau also challenged the
constitutionality of Canon 5A(1)(b) (a judicial candidate shall not "act as a
leader or hold any office in a political organization"). In his complaint, Blau
stated that he wanted to send out brochures to potential voters identifying
himself as "the only Republican candidate for Judge," or "the Conservative
3
Republican candidate for Judge" and identifying his opponent as "the
Democrat candidate" or the "Liberal Democrat for Judge." Blau also indicated
in his complaint that he wanted to seek the endorsement of the local
Republican Party, host events for the local Republican Party, and make
political donations to members of the Republican Party.' In a lengthy order
preliminarily addressing the constitutionality of the canons under review (the
Injunction Order), the District Court concluded that there was a likelihood that
each of the canons at issue was unconstitutional, and granted Blau's motion to
prevent the JCC from enforcing the canons against him in the November 2014
election.
Allison Jones was appointed by Governor Steve Beshear to the Kentucky
Court of Appeals in July 2013. To retain the office to which she was appointed,
Jones became a candidate in the November 2014 General Election. In October
2014, the JCC received a complaint alleging that Judge Jones had made false
and misleading statements in speeches and campaign materials. The "false
and misleading statements" referred to Jones' use of the word "re-elect" to
describe her effort to retain the judicial position to which she had been
appointed rather than "elected." Jones then intervened in Winter's District
Court action, contending that Canon 5B(1)(c) (prohibiting false statements) was
unconstitutional. The only issue presented in Jones' portion of the case is
whether an incumbent judge who was appointed to office may properly use the
1 Blau also raised constitutional challenges to other judicial canons not at issue
in the questions of law presently before us.
4
word "re-elect" to describe her effort to retain the office to which she was
appointed but not elected.
It is within the context of this litigation that the District Court requested
that we certify the law on the questions addressed herein.
II. GENERAL CONSIDERATIONS
We begin with a few general considerations that guide our examination of
the questions presented by the District Court. First, pursuant to the Kentucky
Constitution, all judges and justices at every level of the state judiciary are
selected by ballots cast by the people of Kentucky. Ky. Const. § 117. Thus, we
recognize that the judicial canons we address in this decision were designed to
serve the state's compelling interest of encouraging an unbiased and impartial
judiciary for the Commonwealth, and that the Commonwealth's interest is
offset by restricting the political speech of only the few who volunteer to be a
candidate for office, not their supporters, advocates, and non-candidate
adversaries.
The ultimate objective of our system of judicial selection is to achieve a
delicate balance. On one side of the scales, we must foster and protect the
people's prerogative to choose by direct vote the judges that preside locally and
statewide. On the other side of the scales, we must create a political
environment in which judges selected by the citizens are not tethered, or
beholden to partisan political factions and their associated creeds. And, we
must do so in a way that preserves the judiciary as an institution that is not
partial to or biased against any political faction.
5
The federal judicial system achieves this balance by an effective but
different approach. Rather than selecting judges by popular election, the
federal system selects judges by the collaborative effort of the political
branches, the executive and the legislative, based upon any and all factors
including the nominee's political ties, beliefs, and political ideologies. The
federal system achieves its assurance that judges are not beholden to political
interests and factions by appointing them for life. With the lifetime tenure,
federal judges are liberated from any ties or allegiance to the political factions
that supported their ascension, and that might otherwise seek to influence
them.
|
{
"pile_set_name": "FreeLaw"
}
|
NUMBER 13-00-389-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
__________________________________________________________________
DAVID B. MOORE , Appellant,
v.
ARTHUR ANDERSEN, L.L.P. AND LAURA MAWHINNEY , Appellees.
__________________________________________________________________
On appeal from the 44th District Court
of Dallas County, Texas.
__________________________________________________________________
O P I N I O N
Before Justices Hinojosa, Rodriguez, and Hill (1)
Opinion by Justice Hill
David Moore appeals from a summary judgment that he take nothing in his claims of sex discrimination and harassment,
wrongful discharge, defamation, and intentional infliction of emotional distress against Arthur Andersen, L.L.P., and Laura
Mawhinney. He contends in four points that the trial court erred by granting summary judgment as to each of those four
claims. We affirm because the trial court did not err by granting summary judgment as to Moore's claims.
Moore sued appellees after he was fired by Andersen. His claims for defamation and intentional infliction of emotional
distress were made against both appellees, while his claims for sex discrimination and harassment and wrongful discharge
were directed solely against Andersen. In response to his claims as they are outlined above, Appellees filed a motion for
summary judgment, a motion to which Moore responded. As previously noted, the trial court granted summary judgment
that Moore take nothing as to all of his claims.
Appellees' motion for summary judgment reflects that it is brought both as a traditional and as a no-evidence motion for
summary judgment because it states that it is brought under Texas Rules of Civil Procedure 166a(b) and 166a(i). Further,
as to each cause of action brought by Moore, it alleges that there is no evidence as to an essential element of each claim, as
required by Rule 166a(i). See Tex. R. Civ. P. 166a(i). Rule 166a(i) of the Texas Rules of Civil Procedure provides that:
After adequate time for discovery, a party without presenting summary judgment evidence may move for summary
judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an
adverse party would have the burden of proof at trial. The motion must state the elements as to which there is no evidence.
The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of
material fact.
Id.
When such a motion is presented, the movant does not bear the burden of establishing each element of its own claim or
defense. See Ford v. City State Bank of Palacios, 44 S.W.3d 121, 128 (Tex. App.--Corpus Christi 2001, no pet.). The
burden then shifts to the nonmovant to present enough evidence to be entitled to a trial: evidence that raises a genuine fact
issue on the challenged elements. Id. If the nonmovant is unable to present enough evidence, the trial judge must grant the
motion. Id.
A no-evidence motion for summary judgment is improperly granted if the nonmovant presents more than a scintilla of
probative evidence to raise a genuine issue of material fact. Id. Less than a scintilla of evidence exists when the evidence
is so weak as to do no more than create a mere surmise or suspicion of a fact. Id. More than a scintilla of evidence exists
when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Id.
We first consider whether Appellees were entitled to a no-evidence motion for summary judgment.
SEXUAL HARASSMENT AND DISCRIMINATION
With respect to Moore's claim of sexual harassment and sex discrimination, Andersen maintains in its motion for summary
judgment that Moore can produce no evidence that Mawhinney created a sexually hostile work environment or
discriminated against him because of his sex. Moore's claim is a statutory claim based upon the Texas Human Rights Act,
Texas Labor Code section 21.001, et seq., which provides in section 21.051 as follows:
An employer commits an unlawful employment practice if because of race, color, disability, religion, sex, national origin,
or age the employer:
1. fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual
in connection with compensation or the terms, conditions, or privileges of employment; or
2. limits, segregates, or classifies an employee or applicant for employment in a manner that would deprive or tend to
deprive an individual of any employment opportunity or adversely affect in any other manner the status of an employee.
Tex. Lab. Code ANN.§ 21.051 (Vernon 1996).
We will first consider Moore's contentions as they relate to his claim against Andersen for sex discrimination and
harassment. According to Moore's affidavit, attached to his response, Mawhinney, his project manager at Andersen, gave
him a memorandum that she had prepared for the file. In that memorandum, Mawhinney discussed observations of
Moore's work and behavior. She observed that Moore spent "too much time 'chatting' with multiple female client personnel
at the client site. This was perceived as flirtatious behavior by both the client and Barry's project team member and was
brought to the attention of the project manager at a client dinner meeting." In addition to her observation, Mawhinney's
memo contained the following under the heading "Action" with respect to that observation:
On Wednesday, July 1st, 1998, Laura discussed this issue with Barry at the New Orleans airport. I emphasized the
importance of Barry maintaining professional relationships with client personnel and focusing on project tasks, (which is
what the client is paying AA to do). Additionally, I told Barry, that while developing client relationships are important, that
he should be focusing mainly on tasks at his level, and when working on relationship-building, that it should occur more
often with the client's managers, rather than the accounting clerks. It was reported to me that Barry's behavior changed in
the right direction after our discussion.
Mawhinney further stated in the memo that:
Throughout the week, I observed Barry engaged in multiple conversations with multiple female employees, sometimes
lasting 20-30 minutes at a time. In the course of one day, I would suspect that he worked six of eight hours. Barry should
have had a full week's worth of work to do, but if for some reason he did not, he never bothered to offer assistance to his
project team member with demo scripts, or ask for additional work.
The bulk of the memo was directed to other types of examples of poor job performance on Moore's part. As can be seen,
Mawhinney referred to Moore as Barry in the memorandum.
Moore states in his affidavit that on the next working day, Monday, July 27, 1998, he went to Andersen's office of human
resources and talked to Linda Ferguson. He indicates that after telling her he wanted to talk to her about sexual harassment,
he complained that Mawhinney was directing agitated and antagonistic behavior toward him and was creating a hostile
work environment. Moore says that he prepared a detailed rebuttal of the charges in Mawhinney's memo and followed the
instructions given him by Ferguson. The affidavit reflects that on the following Friday, July 31, 1998, Moore was called to
the office of Andersen's Director of Human Resources, Scott Wilson, who advised him that it "appears you are a flirt."
According to Moore, Wilson then summarily fired him for sexual harassment. Moore observed in his deposition that
several employees at Andersen declined to read his response to Mawhinney's memo, including Jeff Valentine and Paul
Shultz.
Andersen, in a letter to the Texas Workforce Commission, stated that Moore was fired for sexual harassment and
forwarded its sexual harassment policy to the commission, but Wilson, Andersen's Director of Human Resources, indicated
he had told the person who wrote the letter that it was incorrect and should have read that he was terminated for
unprofessional conduct. Wilson stated that the person who wrote the information got it from the file by looking at the notes
he prepared, but that he did not know how she concluded that Moore was terminated for sexual harassment. Wilson
acknowledged that Andersen has no code number for termination for sexual harassment. Wilson indicated that the
employee who made the error is a competent employee and that he was not aware of it ever happening before.
In a telephone conversation between Wilson and Moore after Moore's termination, Wilson related to Moore that he had
interviewed seven women. He told Moore that they had indicated that Moore asked them about whom they were dating
and whether they were dating anyone. Wilson told Moore that all of them felt very uncomfortable in that situation. Moore
denied the accusations, but Wilson told him that he
|
{
"pile_set_name": "FreeLaw"
}
|
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1195
MARY T. LACLAIR, Individually and as Personal
Representative of the Estate of Cameron J. LaClair, Jr.,
Plaintiff – Appellant,
v.
SUBURBAN HOSPITAL, INCORPORATED,
Defendant – Appellee,
and
PHYSICAL THERAPY AND SPORTS MEDICINE BINH M. TRAN, P.T., INC.;
CATHERINE L. COELHO, M.P.T., f/k/a Catherine Chamberlain;
SUBURBAN HOSPITAL FOUNDATION, INC.; SUBURBAN HOSPITAL HEALTHCARE
SYSTEM, INC.,
Defendants.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, Senior District
Judge. (8:10-cv-00896-PJM)
ARGUED: January 31, 2013 Decided: April 15, 2013
Before TRAXLER, Chief Judge, and KEENAN, and THACKER, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Patrick Michael Regan, REGAN ZAMBRI LONG & BERTRAM,
Washington, D.C., for Appellant. Michael E. von Diezelski,
ADELMAN, SHEFF & SMITH, LLC, Annapolis, Maryland, for Appellee.
ON BRIEF: Jacqueline T. Colclough, REGAN ZAMBRI LONG & BERTRAM,
Washington, D.C., for Appellant.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Mary T. LaClair, individually and as personal
representative of the estate of her husband, Cameron J. LaClair,
Jr., appeals the district court’s order finding that the
Appellee, Suburban Hospital, Inc. (“Suburban”), and Physical
Therapy and Sports Medicine (“PTSM”), were joint tortfeasors
with respect to her husband’s injuries sustained while he was a
patient at Suburban. Mr. LaClair was first injured while
receiving physical therapy at PTSM. After undergoing surgery at
Suburban for that injury, he was further injured by the actions
of Suburban’s patient care technicians. Suburban asks us to
affirm the district court’s conclusion that it is a joint
tortfeasor with PTSM because its actions did not constitute a
superseding cause of harm to Mr. LaClair.
In unraveling this appeal, Maryland law directs us to
several provisions of the Restatement (Second) of Torts, each of
which is grounded in the idea that an intervening act is not a
superseding cause if it was foreseeable at the time of the
primary negligence. Because the harm and injuries sustained at
Suburban were foreseeable consequences of the alleged negligence
of PTSM, Suburban’s actions were not a superseding cause of Mr.
LaClair’s injuries. Thus, Suburban and PTSM are joint
tortfeasors, and we affirm.
3
I.
A.
On November 1, 2007, Mr. LaClair, a “vibrant former
CIA officer” in his mid-80s, J.A. 211, 1 sustained an injury while
receiving physical therapy at the PTSM facility (the “November 1
incident”). He was attempting to secure himself in a piece of
exercise equipment and fell onto the floor, while his physical
therapist had stepped away. He was taken by ambulance to
Suburban, where he was diagnosed with a cervical fracture and
dislocation.
Dr. Alexandros Powers, a neurosurgeon, performed
surgery on Mr. LaClair on November 3, 2007. The surgery
entailed Dr. Powers inserting screws and rods to secure Mr.
LaClair’s spine. According to Dr. Powers, the surgery “was
successful and proceeded without complication, and Mr. LaClair’s
prognosis at that time included a complete and total recovery
free from future cervical spine surgery.” J.A. 227.
Dr. Powers stated that, as of the morning of November
6, 2007, Mr. LaClair was “recovered and was to be discharged
[from Suburban] to a rehabilitation facility” the next day, and
“there was no plan or expectation for subsequent cervical spine
1
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
4
surgeries due to the success of the November 3 surgery[.]” J.A.
228. Later on November 6, Mr. LaClair was transferred from ICU
to a regular room, and his catheter was removed. He needed
assistance using the bathroom, and, after Mrs. LaClair called
several times for assistance, two patient care technicians
responded. Mr. LaClair used the bathroom, and the patient care
technicians attempted to reposition him in his hospital bed.
Although Suburban claims Mrs. LaClair “resort[s] to
hyperbole when referring to the conduct of November 6,” and the
patient care technicians, while perhaps negligent, were
“performing their normal duties when they were aiding Mr.
LaClair and repositioning him in bed,” Br. of Appellee 6, Mrs.
LaClair views the incident as out of bounds because her
husband’s “head was violently pushed against the side rail of
the bed and he cried out in pain,” Br. of Appellant 4. Mrs.
LaClair testified that one of the patient care technicians was
“very rough,” explaining, “her motions were gross motions. They
weren’t careful motions. And I thought, with somebody with a
broken neck, I think I’d be careful, but there was none of
that.” J.A. 362-63 (the “November 6 incident”).
There is no dispute that Mr. LaClair sustained
additional injuries as a result of the November 6 incident. Dr.
Powers examined Mr. LaClair and found “a fracture of the C7
endplate, dislocation at C6/C7, dislodging of the screws placed
5
in previous surgery, ligament damage and hemorrhage, nerve root
injury at the level of C7 and C8 and spinal cord injury.” J.A.
228. He determined Mr. LaClair could no longer be discharged on
November 7 as previously scheduled, but rather, needed to
undergo an additional surgery on November 8. Mr. LaClair later
underwent a third surgery on February 6, 2008, at Georgetown
University Hospital. He spent nearly five months hospitalized,
underwent plaster casting of his cervical spine, developed
bedsores, and ultimately required a feeding tube.
Mrs. LaClair presented evidence to the district court
that as a result of the November 6 incident, Mr. LaClair’s
medical bills totaled over $1.05 million and had a projected
future cost of $900,000. Another physician testified that
absent the November 6 incident, his medical and rehabilitation
expenses would have been only $75,000 to $125,000.
B.
The LaClairs filed two separate lawsuits: first,
against PTSM for injuries stemming from the November 1 incident
(filed March 19, 2009) (the “PTSM lawsuit”), and second, against
Suburban for “separate and distinct” injuries stemming from the
6
November 6 incident (
|
{
"pile_set_name": "FreeLaw"
}
|
T.C. Memo. 2019-54
UNITED STATES TAX COURT
MARY BUI, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 20453-16. Filed May 21, 2019.
Ronda N. Edgar, for petitioner.
Adam B. Landy, Nancy M. Gilmore, and Thomas R. Mackinson, for
respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
GOEKE, Judge: Respondent issued a notice of deficiency to petitioner
determining an income tax deficiency for 2011 of $173,058 and an addition to tax
-2-
[*2] under section 6651(a)(1) of $66,668.1 After concessions, the sole issue
remaining for consideration is whether petitioner must include in gross income
cancellation of indebtedness of $355,488. We hold that she may properly exclude
$48,151 but must include the remaining $307,337.
FINDINGS OF FACT
This case was tried on September 10, 2018, in San Francisco, California.
The parties have submitted a stipulation of facts and accompanying exhibits,
which are incorporated herein by this reference. When the petition was timely
filed, petitioner resided in California.2
Petitioner is also known as Nga Thuy Lan Bui. For 2011 petitioner
excluded $355,488 of discharged indebtedness from her gross income and
indicated the excluded indebtedness was qualified principal residence
1
Unless otherwise indicated, all section references are to the Internal
Revenue Code (Code) as amended and in effect at all relevant times, and all Rule
references are to the Tax Court Rules of Practice and Procedure.
2
The petition was received with an illegible postmark on September 19,
2016, five days after the time to file a petition with this Court had expired. Sec.
301.7502-1(c)(1)(iii)(A), Proced. & Admin. Regs., places on the taxpayer the
burden to prove the date an illegible postmark was made. On March 12, 2019, we
issued an order directing petitioner to sustain her burden of establishing that the
postmark was timely made. On March 24, 2019, petitioner responded to our order
and supplemented the record with proof of mailing on September 12, 2016.
Accordingly, we are satisfied of our jurisdiction to hear this case.
-3-
[*3] indebtedness. On June 16, 2016, respondent issued a notice of deficiency to
petitioner for 2011 and proposed an adjustment disallowing her entire exclusion of
discharged indebtedness income. Respondent now concedes that petitioner was
insolvent by $42,852 in 2011.
I. Residences
A. Red River Property
On June 1, 1981, petitioner, her former spouse, and three other persons
purchased a single-family residence on Red River Way in San Jose, California
(Red River property), for $156,500. Petitioner and her former spouse together
owned a 25% interest in the Red River property. By grant deed dated October 15,
1985, and recorded January 28, 1986, petitioner and her former spouse purchased
the remaining 75% interest in the Red River property for $97,500. By quitclaim
deed dated November 14, 2002, and recorded December 12, 2002, petitioner
acquired sole ownership in the Red River property. Petitioner legally separated
from her former spouse in 2005 or 2006.
Petitioner lived at the Red River property from its acquisition in 1981
through March 14, 2011, and treated it as her primary residence. On March 14,
2011, petitioner relinquished ownership of the Red River property by short sale for
-4-
[*4] $485,000. At that time, the balance of the mortgage on the Red River
property was $416,000.
B. Cedar Grove Property
On or around June 1, 1988, petitioner and her former spouse purchased a
single-family rental home on Cedar Grove Circle in San Jose, California (Cedar
Grove property). By quitclaim deed dated November 14, 2002, and recorded
December 12, 2002, petitioner acquired sole ownership in the Cedar Grove
property. After petitioner sold the Red River property in March 2011, she moved
into the Cedar Grove property and established it as her new primary residence.
II. Wells Fargo Lines of Credit
Before 2011 petitioner obtained three home equity lines of credit with Wells
Fargo Bank, N.A. (Wells Fargo). Petitioner executed a deed of trust dated
February 14, 2007, and recorded March 12, 2007, securing a $250,000 line of
credit for an account ending in 9471 between herself and Wells Fargo with the
Red River property listed as collateral (9471 loan). Petitioner executed a deed of
trust dated March 1, 2007, and recorded March 26, 2007, securing a $40,000 line
of credit for an account ending in 7231 between herself and Wells Fargo with the
Cedar Grove property as collateral (7231 loan). Petitioner also executed a deed of
trust dated March 20, 2007, and recorded April 30, 2007, securing a $101,942 line
-5-
[*5] of credit for an account ending in 5371 between herself and Wells Fargo with
the Cedar Grove property as collateral (5371 loan).
In 2011 Wells Fargo issued three Forms 1099-C, Cancellation of Debt, to
petitioner indicating that the remaining debt associated with the 9471 loan, the
7231 loan, and the 5371 loan had been canceled. On the Forms 1099-C Wells
Fargo described the debts as “HEQ Secured Installment Loan” and checked the
box indicating petitioner was personally liable for repayment of the debts.
Petitioner’s canceled Wells Fargo debt for 2011 was as follows:
Date of Form 1099-C Amount of canceled debt Account No.
Mar. 18, 2011 $243,299 9471
Oct. 28, 2011 11,999 7231
Oct. 28, 2011 100,190 5371
Petitioner executed at least four additional deeds of trust with Wells Fargo
before 2011. In addition, petitioner, with and without her former spouse, executed
at least seven deeds of trust between 1986 and 2004 from banking institutions
other than Wells Fargo. The indebtedness indicated by these additional deeds of
trust was not canceled in 2011.
-6-
[*6] III. Home Improvements
Petitioner testified to carrying out a number of home improvement projects
before 2011 for the Red River property, but she provided no documentation
relating to when or how expenses of these projects were paid. She did not testify
to any home improvement project expenses related to the Cedar Grove property.
Petitioner paid approximately $10,000 for custom drapes to be installed at the Red
River property in 2007. In addition, she spent approximately $12,000 for
driveway repair and expansion work at the Red River property in 2008. The
remaining home improvement expenditures petitioner testified to were made
before 2007, the year she obtained the Wells Fargo lines of credit. The associated
debts were discharged in 2011.
OPINION
Generally, the Commissioner’s determinations in a notice of deficiency are
presumed correct, and the taxpayer bears the burden of proving the determinations
are erroneous. Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933).
However, for the presumption of correctness to attach in an unreported income
case such as this, the Commissioner must base his deficiency determination on
some substantive evidence that the taxpayer received unreported income. Hardy v.
Commissioner, 181 F.3d 1002, 1004 (9th Cir. 1999), aff’g T.C. Memo. 1997-97.
-7-
[*7] There is no dispute in this case that petitioner had debt that was forgiven.
Section 7491(a) shifts the burden of proof to the Commissioner where the taxpayer
has presented credible evidence with respect to any factual issue relevant to
ascertaining the correct tax liability of the taxpayer. Section 7491(a) also requires
that the taxpayer have substantiated all appropriate items, maintained records as
required under the Code, and cooperated with all reasonable requests by the
Commissioner for witnesses, information, documents, meetings, and interviews.
Sec. 7491(a)(2)(A) and (B). Petitioner has not attempted to argue, and the record
does not demonstrate, her compliance with the requirements of section 7491(a);
accordingly, the burden remains with petitioner to show respondent’s
determinations were incorrect.
This is a dispute over whether petitioner had reportable cancellation of
indebtedness income that she failed to report on her 2011 tax return. The Code
defines income liberally as “all income from whatever source derived”. Sec.
61(a). Specifically, income includes any income from the discharge of
|
{
"pile_set_name": "FreeLaw"
}
|
[Cite as State v. McDougald, 2016-Ohio-5080.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, : Case No. 16CA3736
Plaintiff-Appellee, :
v. : DECISION AND
JUDGMENT ENTRY
JERONE MCDOUGALD, :
RELEASED: 7/15/2016
Defendant-Appellant. :
APPEARANCES:
Jerone McDougald, Lucasville, OH, pro se appellant.
Mark E. Kuhn, Scioto County Prosecuting Attorney, and Jay S. Willis, Scioto County
Assistant Prosecuting Attorney, Portsmouth, OH, for appellee.
Harsha, J.
{¶1} Jerone McDougald appeals the judgment denying his fifth petition for
postconviction relief and his motion for leave to file a motion for new trial. McDougald
contends that the court erred in denying his petition, which raised claims of ineffective
assistance of his trial counsel. He additionally argues that the court erred in denying his
motion for leave to file a motion for new trial, but did not assign any errors regarding this
decision.
{¶2} We reject McDougald’s claims. He failed to demonstrate the requirements
necessary for the trial court to address the merits of his untimely claims in his fifth
petition for postconviction relief. Moreover, res judicata barred this successive petition
because he could have raised these claims on direct appeal or in one of his earlier
postconviction petitions. Finally, because he failed to assign any error regarding the
trial court’s denial of his motion for leave to file a motion for new trial, we need not
address his arguments regarding that decision.
Scioto App. No. 16CA3736 2
{¶3} Therefore, we affirm the judgment of the trial court denying his petition and
motion.
I. FACTS1
{¶4} Authorities searched a premises in Portsmouth and found crack cocaine,
money, digital scales, and a pistol. They arrested the two occupants of the residence,
McDougald and Kendra White, at the scene. Subsequently, the Scioto County Grand
Jury returned an indictment charging McDougald with drug possession, drug trafficking,
possession of criminal tools, and the possession of a firearm while under disability.
McDougald pleaded not guilty to all charges.
{¶5} At the jury trial Kendra White testified that McDougald used her home to
sell crack cocaine and that she sold drugs on his behalf as well. She also testified that
the digital scales belonged to McDougald and, although the pistol belonged to her ex-
boyfriend, Benny Simpson (who was then incarcerated), McDougald asked her to bring
it inside the home so that he would feel more secure. White explained that Simpson
previously used the pistol to shoot at her, but threw it somewhere in the backyard when
he left. Simpson then allegedly called White from jail and instructed her to retrieve the
pistol. White complied and then hid it “under the tool shed” until McDougald instructed
her to retrieve it and bring it inside the house. White confirmed that she saw
McDougald at the premises with the gun on his person.
{¶6} Jesse Dixon and Melinda Elrod both testified that they purchased crack
cocaine from McDougald at the residence. Shawna Lattimore testified that she served
1Except where otherwise noted, these facts are taken from our opinion in State v. McDougald, 4th Dist.
Scioto Nos. 14CA3649 and 15CA3679, 2015-Ohio-5590, appeal not accepted for review, State v.
McDougald, 144 Ohio St.3d 147, 2016-Ohio-467, 845 N.E.3d 245.
Scioto App. No. 16CA3736 3
as a “middleman” for McDougald's drug operation and also helped him transport drugs
from Dayton. She testified that she also saw McDougald carry the pistol.
{¶7} The jury returned guilty verdicts on all counts. The trial court sentenced
McDougald to serve five years on the possession count, nine years for trafficking, one
year for the possession of criminal tools, and five years for the possession of a firearm
while under disability. The court ordered the sentences to be served consecutively for a
total of twenty years imprisonment. The sentences were included in a judgment entry
filed April 30, 2007, as well as a nunc pro tunc judgment entry filed May 16, 2007.
{¶8} In McDougald's direct appeal, where he was represented by different
counsel than his trial attorney, we affirmed his convictions and sentence. State v.
McDougald, 4th Dist. Scioto No. 07CA3157, 2008-Ohio-1398. We rejected
McDougald's contention that because the only evidence to link him to the crimes was
“the testimony of admitted drug addicts and felons,” the verdicts were against the
manifest weight of the evidence:
* * * appellant's trial counsel skillfully cross-examined the prosecution's
witnesses as to their statuses as drug addicts and convicted felons.
Counsel also drew attention to the fact that some of the witnesses may
actually benefit from the testimony that they gave. That evidence
notwithstanding, the jury obviously chose to believe the prosecution's
version of the events. Because the jury was in a better position to view
those witnesses and determine witness credibility, we will not second-
guess them on these issues.
Id. at ¶ 8, 10.
{¶9} In January 2009, McDougald filed his first petition for postconviction relief.
He claimed that he was denied his Sixth Amendment right to confrontation when the
trial court admitted a drug laboratory analysis report into evidence over his objection.
Scioto App. No. 16CA3736 4
The trial court denied the petition, and we affirmed the trial court's judgment. State v.
McDougald, 4th Dist. Scioto No. 09CA3278, 2009-Ohio-4417.
{¶10} In October 2009, McDougald filed his second petition for postconviction
relief. He again claimed that he was denied his Sixth Amendment right of confrontation
when the trial court admitted the drug laboratory analysis report. The trial court denied
the petition, and McDougald did not appeal the judgment.
{¶11} In July 2014, McDougald filed his third petition for postconviction relief.
He claimed that: (1) the trial court lacked jurisdiction to convict and sentence him
because the original complaint filed in the Portsmouth Municipal Court was based on
false statements sworn to by the officers; (2) the prosecuting attorney knowingly used
and relied on false and perjured testimony in procuring the convictions against him; and
(3) the state denied him his right to due process by withholding exculpatory evidence,
i.e., a drug task force report. McDougald attached the report, the municipal court
complaints, a portion of the trial transcript testimony of Kendra White, his request for
discovery, and the state's answer to his request for discovery to his petition. The trial
court denied the petition because it was untimely and did not fall within an exception
justifying its late filing. McDougald appealed from the trial court's judgment denying his
third petition for postconviction relief.
{¶12} In December 2014, McDougald filed his fourth petition for postconviction
relief. He claimed that his sentence is void because the trial court never properly
entered a final order in his criminal case. The trial court denied the petition. McDougald
appealed from the trial court's judgment denying his fourth petition for postconviction
relief.
Scioto App. No. 16CA3736 5
{¶13} We consolidated the appeals and affirmed the judgments of the trial court
denying his third and fourth petitions for postconviction relief. McDougald, 2015-Ohio-
5590. We held that McDougald failed to establish the requirements necessary for the
trial court to address the merits of his untimely claims and that res judicata barred the
claims because he either raised them on direct appeal or could have raised them on
direct appeal or in one of his previous petitions for postconviction relief. Id.
{¶14} In November 2015, over eight and one-half years after he was sentenced,
McDougald filed his fifth petition for postconviction relief. He argued that his trial
counsel had provided ineffective assistance by failing to conduct an independent
investigation of various matters, failing to use preliminary hearing testimony of the
arresting officer to impeach the state’s case, failing to emphasize Kendra White’
|
{
"pile_set_name": "FreeLaw"
}
|
723 P.2d 394 (1986)
L. Lynn ALLEN and Merle Allen, Plaintiffs and Respondents,
v.
Thomas M. KINGDON and Joan O. Kingdon, Defendants and Appellants.
No. 18290.
Supreme Court of Utah.
July 29, 1986.
H. James Clegg, Scott Daniels, Salt Lake City, for defendants and appellants.
Boyd M. Fullmer, Salt Lake City, for plaintiffs and respondents.
HOWE, Justice:
The plaintiffs Allen (buyers) brought this action for the return of all money they had paid on an earnest money agreement to purchase residential real estate. The defendants Kingdon (sellers) appeal the trial court's judgment that the agreement had been rescinded by the parties and that the buyers were entitled to a full refund.
*395 On February 12, 1978, the buyers entered into an earnest money agreement to purchase the sellers' home for $87,500. The agreement provided for an immediate deposit of $1,000, which the buyers paid, to be followed by an additional down payment of $10,000 by March 15, 1978. The buyers were to pay the remainder of the purchase price at the closing which was set on or before April 15, 1978. The agreement provided for the forfeiture of all amounts paid by the buyers as liquidated and agreed damages in the event they failed to complete the purchase. The buyers did not pay the additional $10,000, but paid $9,800 because the parties later agreed on a $200 deduction for a light fixture the sellers were allowed to take from the home. An inscription on the $9,800 check stated all monies paid were "subject to closing."
There were several additional exchanges between the parties after the earnest money agreement was signed. The buyers requested that the sellers fix the patio, which the sellers refused to do. The buyers asked that the sellers paint the front of the home, which Mr. Kingdon agreed to do, but did not accomplish. The parties eventually met to close the sale. The buyers insisted on a $500 deduction from the purchase price because of the sellers' failure to paint. The sellers refused to convey title unless the buyers paid the full purchase price. Because of this impasse, the parties did not close the transaction. Mrs. Allen and Mrs. Kingdon left the meeting, after which Mr. Kingdon orally agreed to refund the $10,800, paid by the buyers. However, three days later, the sellers' attorney sent a letter to the buyers advising them that the sellers would retain enough of the earnest money to cover any damages they would incur in reselling the home. The letter also stated that the buyers could avoid these damages by closing within ten days. The buyers did not offer to close the sale. The home was eventually sold for $89,100, less a commission of $5,346. Claiming damages in excess of $15,000, the sellers retained the entire $10,800 and refused to make any refund to the buyers. The trial court found that the parties had orally rescinded their agreement and ordered the sellers to return the buyers' payments, less $1,000 on a counterclaim of the sellers, which award is not challenged on this appeal.
The sellers first contend that the trial court erred in holding that our statute of frauds permits oral rescission of a written executory contract for the sale of real property. U.C.A., 1953, § 25-5-1 provides:
No estate or interest in real property, other than leases for a term not exceeding one year, nor any trust or power over or concerning real property or in any manner relating thereto, shall be created, granted, assigned, surrendered or declared otherwise than by operation of law, or by deed or conveyance in writing subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by his lawful agent thereunto authorized by writing.
(Emphasis added.) In Cutwright v. Union Savings & Investment Co., 33 Utah 486, 491-92, 94 P. 984, 985 (1908), this Court interpreted section 25-5-1 as follows:
No doubt the transfer of any interest in real property, whether equitable or legal, is within the statute of frauds; and no such interest can either be created, transferred, or surrendered by parol merely.... No doubt, if a parol agreement to surrender or rescind a contract for the sale of lands is wholly executory, and nothing has been done under it, it is within the statute of frauds, and cannot be enforced any more than any other agreement concerning an interest in real property may be.
(Emphasis added.) In that case, the buyer purchased a home under an installment contract providing for the forfeiture of all amounts paid in the event the buyer defaulted. The buyer moved into the home but soon discontinued payments. He informed the seller that he would make no more payments on the contract, surrendered the key to the house, and vacated the premises. Soon thereafter, an assignee of the buyer's interest informed the seller that he intended to make the payments *396 under the contract and demanded possession. The seller refused to accept the payments, claiming that the contract had been mutually rescinded on the buyer's surrender of possession.
We held that the statute of frauds generally requires the surrender of legal and equitable interests in land to be in writing. Where, however, an oral rescission has been executed, the statute of frauds may not apply. In Cutwright, surrender of possession by the buyer constituted sufficient part performance of the rescission agreement to remove it from the statute of frauds. This exception is one of several recognized by our cases. We have also upheld oral rescission of a contract for the sale of land when the seller, in reliance on the rescission, enters into a new contract to resell the land. Budge v. Barron, 51 Utah 234, 244-45, 169 P. 745, 748 (1917). In addition, an oral rescission by the buyer may be enforceable where the seller has breached the written contract. Thackeray v. Knight, 57 Utah 21, 27-28, 192 P. 263, 266 (1920).
In the present case, the oral rescission involved the surrender of the buyers' equitable interest in the home under the earnest money agreement. Further, the rescission was wholly executory. There is no evidence of any part performance of the rescission or that the buyers substantially changed their position in reliance on the promise to discharge the contract. On the contrary, three days after the attempted closing, the sellers informed the buyers that they intended to hold them to the contract. It was only after the buyers continued in their refusal to close that the sellers placed the home on the market.
The buyers argue that the weight of authority in the United States is to the effect that an executory contract for the sale of land within the statute of frauds may be orally rescinded. This may indeed be the case when there are acts of performance of the oral agreement sufficient to take it out of the statute of frauds. See Annot., 42 A.L.R.3d 242, 251 (1972). In support of their contention that an oral rescission of an earnest money agreement for the purchase of land is valid absent any acts of performance, the buyers rely on Niernberg v. Feld, 131 Colo. 508, 283 P.2d 640 (1955). In that case, the Colorado Supreme Court upheld the oral rescission of an executory contract for the sale of land under a statute of frauds which, like Utah's, applies specifically to the surrender of interests in land. The Colorado court concluded that the statute of frauds concerns the making of contracts only and does not apply to their revocation. However, the court did not attempt to reconcile its holding with the contradictory language of the controlling statute. For a contrary result under a similar statute and fact situation, see Waller v. Lieberman, 214 Mich. 428, 183 N.W. 235 (1921). In light of the specific language of Utah's statute of frauds and our decision in Cutwright v. Union Savings & Investment Co., supra, we decline to follow the Colorado case. We note that the annotator at 42 A.L.R.3d 257 points out that in Niernberg the rescission was acted upon in various ways. We hold in the instant case that the wholly executory oral rescission of the earnest money agreement was unenforceable under our statute of frauds.
Nor were the buyers entitled to rescind the earnest money agreement because of the sellers' failure to paint the front of the home as promised. Cf. Thackeray v. Knight, 57 Utah at 27-28, 192 P. at 266 (buyer's oral rescission of contract for sale of land was valid when seller breached contract). The rule is well settled in Utah that if the original agreement is within the statute of frauds, a subsequent agreement that modifies any of the material parts of the original must also satisfy the statute. Golden Key Realty, Inc. v. Mantas, 699 P.2d 730, 732 (Utah 1985). An exception to this general rule has been recognized where a party has changed position by performing an oral modification so that it would be inequitable to permit the other party to found a claim or defense on the original agreement as unmodified. White v. Fox, 665 P.2d 1297, 1301 (Utah 1983) *397 (citing Bamberger Co. v. Certified Productions, Inc., 88 Utah 194, 201, 48 P.2d 489, 492 (1935), aff'd on rehearing, 88 Utah 213, 53 P.2d 1153 (1936)). There is no indication that the buyers changed their position in reliance
|
{
"pile_set_name": "FreeLaw"
}
|
154 F.3d 417
U.S.v.Chukwuma*
NO. 97-11093
United States Court of Appeals,Fifth Circuit.
July 29, 1998
Appeal From: N.D.Tex. ,No397CR104D
1
Affirmed.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34-2
|
{
"pile_set_name": "FreeLaw"
}
|
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1240-10
DAVID CEPEDA JONES, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTH COURT OF APPEALS
BEXAR COUNTY
Per curiam. Keasler, and Hervey, JJ., dissent.
O R D E R
The petition for discretionary review violates Rule of Appellate Procedure 9.3(b) and
68.4(i) because the original petition is not accompanied by 11 copies and the petition does
not contain a complete copy of the opinion of the court of appeals.
The petition is struck. See Rule of Appellate Procedure 68.6.
The petitioner may redraw the petition. The redrawn petition and copies must be filed
in the Court of Criminal Appeals within thirty days after the date of this Order.
Filed: October 6, 2010
Do Not Publish
|
{
"pile_set_name": "FreeLaw"
}
|
7 P.3d 49 (2000)
Donald L. SEGNITZ, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff).
Donald L. Segnitz, Appellant (Defendant),
v.
The State of Wyoming, Appellee (Plaintiff).
Nos. 99-223, 99-254.
Supreme Court of Wyoming.
June 2, 2000.
*50 Representing Appellant: Donald L. Segnitz, Pro Se.
Representing Appellee: Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; and D. Michael Pauling, Senior Assistant Attorney General.
Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.
MACY, Justice.
Appellant Donald L. Segnitz appeals from the denials of two motions he filed in two separate courts to correct his illegal sentences. The cases were consolidated for purposes of appeal.
We affirm in part and reverse in part.
ISSUES
In Case No. 99-223, Segnitz presents the following issues for our review:
1. Did the District Court [err] by denying Appellant's Motion to Correct an Illegal Sentence, which was filed because while orally sentenced to concurrent sentences, the Written Judgement and Sentence, and Mitimus failed to stipulate that sentence was concurrent[?]
2. Did the District Court [err] by denying Appellant's Motion to Correct ... an ILLEGAL Sentence, which was filed because the Court did not award credit for time served in it[]s Judgement and Sentence, nor Mitimus[?] Nor had it been *51 addressed orally by the Court at sentencing.
In Case No. 99-254, Segnitz presents the following issues for our review:
A. Did the District Court sentence the Appellant to an illegal term by not abiding by W.R.Cr.P. 32(c)2(C), (E), and (F)?
B. Did the District Court by denying the Motion to Correct an Illegal Sentence and then changing the original sentence abuse it[]s d[i]scretion?
C. If the change in sentence was proper then should the Appellant [be] afforded due process by the District Court?
FACTS
In November of 1997, Segnitz was sentenced in Sweetwater County to serve a term in the Wyoming State Penitentiary of not less than one year nor more than three years, with credit for the time he served in presentence confinement, for the offense of felony larceny. He was released on parole to Community Alternatives of Casper on June 25, 1998. On July 30, 1998, Segnitz departed from Community Alternatives of Casper without authorization, stealing a car to facilitate his exit. He drove to Wheatland where he abandoned this car and stole another, which he drove to Indiana.
Both the Platte County and Natrona County authorities issued arrest warrants for the crimes committed in their respective counties. The Board of Parole issued an order of arrest because Segnitz had violated the terms of his parole for the Sweetwater County felony larceny conviction. Segnitz was arrested in Indiana on August 1, 1998, and later charged with felony larceny in both Platte County and Natrona County. He pleaded guilty to the charges. Segnitz was sentenced on September 10, 1998, in Platte County to a term of not less than two years nor more than four years in the Wyoming State Penitentiary. The order was silent with regard to whether the sentence was to be served concurrently with or consecutively to any other sentences. On March 5, 1999, Segnitz was orally sentenced in Natrona County to the stipulated prison term of three to four years. The stipulation provided for the sentence to be served concurrently with the sentences imposed in Sweetwater County and Platte County. The written Judgment and Sentence failed to mention that the sentence was to be served concurrently with the other sentences, but, three months later, the district court entered an order nunc pro tunc to that effect.
Segnitz arrived at the Wyoming State Penitentiary on or shortly after March 5, 1999, the date he was sentenced in Natrona County. On April 12, 1999, the Board of Parole revoked his parole for the Sweetwater County offense, crediting him "with all of the time during which he was released."
Segnitz filed motions in the district courts of Platte County and Natrona County to correct illegal sentences. In his Platte County motion, Segnitz asserted that the Judgment and Sentence failed to specify how the sentence was to be served with regard to his other sentences. He also complained that the Judgment and Sentence failed to state the number of days awarded as presentence incarceration credit. In response, the district court issued an order wherein it announced that it intended for the sentence to be served consecutively to the others and that Segnitz was not entitled to presentence incarceration credit. In his Natrona County motion, Segnitz claimed that the Judgment and Sentence failed to reflect the district court's oral pronouncement that made the sentence run concurrently with the others and failed to award any presentence incarceration credit. Although the district court initially denied Segnitz's motion, it later entered the order nunc pro tunc referenced above which ordered the sentence for the Natrona County crime to be served concurrently with the other sentences.
Segnitz appeals to the Wyoming Supreme Court.
DISCUSSION
A. Presentence Incarceration Credit
Segnitz contends that both district courts erred when they refused to award credit for the time he spent confined before he was sentenced. The state counters that Segnitz was on parole and in the legal custody *52 of the Board of Parole during the entire time he was confined on these two charges and that the Board of Parole awarded him credit against his Sweetwater County sentence for all the time he spent on parole when his parole was eventually revoked.
The decision to grant or deny a motion to correct an illegal sentence is usually left to the sound discretion of the district court. Hamill v. State, 948 P.2d 1356, 1358 (Wyo.1997). The district court's decision is given considerable deference unless a rational basis does not exist for it. Id. A criminal defendant is entitled to receive credit against his sentence for the time he was incarcerated prior to sentencing, provided that such confinement was because of his inability and failure to post bond on the offense for which he was awaiting disposition. Smith v. State, 988 P.2d 39, 40 (Wyo.1999). A sentence which does not include credit for presentence incarceration is illegal and constitutes an abuse of discretion. Id. A defendant is not, however, entitled to credit for the time he spent in custody when that confinement would have continued despite his ability to post bond. Id.
The Board of Parole revoked Segnitz's parole for the Sweetwater County conviction after he had been sentenced in the Platte County and Natrona County cases. Had the Board of Parole revoked Segnitz's parole before he was sentenced in the Platte County and Natrona County cases, there would be no argument about the fact that those district courts refused to award presentence incarceration credit. We, however, are not concerned with this order of events and agree with the state's observation that Segnitz should not be allowed to apply the credit to the new sentences "simply because his parole was fortuitously revoked" after, and not before, his convictions for the new crimes. When the Board of Parole awarded Segnitz full credit against his Sweetwater County sentence for the time he spent on parole, it cured any problems that existed as a result of the failures by the district courts in Platte County and Natrona County to do so.
B. Concurrent Sentences
Segnitz contends that the district court erred when it ordered his Platte County sentence to run consecutively to the other sentences. The state concedes that Segnitz is correct in this assertion.
The original order was silent with regard to how the Platte County sentence was intended to run with the other sentences. Eleven months later, the district court clarified the Judgment and Sentence by ordering the sentence to run consecutively to the others. In the meantime, the district court of Natrona County ordered its sentence to run concurrently with the other sentences.
When the district court of Platte County entered its order, Segnitz had not yet been prosecuted in Natrona County nor had his parole been revoked. If a defendant is subject to prosecution in more than one court, the decision regarding how the sentences will run with respect to one another should be made by the last judge to impose a sentence. 24 C.J.S. Criminal Law § 1524 (1989). The underlying rationale for this theory is that a judge cannot require a sentence to be served consecutively to a sentence that has not yet been imposed. Id. We agree with the state that this is the best practice and conclude that the district court of Platte County abused its discretion when it ordered its sentence to run consecutively to the others. The district court of Natrona County was the last court to impose a sentence, and it ordered its sentence to run concurrently with the others. That portion of the order for the Platte County offense which directed the sentence to run consecutively to the others is illegal and is hereby stricken.
Affirmed in part and reversed in part.
|
{
"pile_set_name": "FreeLaw"
}
|
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-1461
_____________
JOSE FRANCISCO TINEO
AKA Luis Alberto Padilla, AKA Jose Sanchez,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
______________
On Petition for Review of a Decision of the
United States Department of Justice
Board of Immigration Appeals
(A040-015-082)
Immigration Judge: Walter A. Durling
______________
Argued January 19, 2018
______________
Before: SMITH, Chief Judge, GREENAWAY, JR., and
KRAUSE, Circuit Judges.
(Opinion Filed: September 4, 2019)
______________
OPINION
______________
Charles N. Curcio [ARGUED]
Curcio Law Firm
3547 Alpine Avenue NW
Suite 104
Grand Rapids, MI 49544
Attorney for Petitioner
Stefanie N. Hennes [ARGUED]
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Attorney for Respondent
GREENAWAY, JR., Circuit Judge.
In plain terms, we are called to decide whether
precluding a father from ever having his born-out-of-wedlock
child derive citizenship through him can be squared with the
equal-protection mandate of the Due Process Clause of the
Fifth Amendment.
In not so plain terms, under the now repealed 8 U.S.C.
§ 1432(a)(2), a “child” born outside of the United States to
noncitizen parents became a citizen upon the naturalization of
2
her surviving parent if one of her parents was deceased.1
Section 1101(c)(1) in turn defined “child” as including a child
born out of wedlock only in so far as the child was legitimated
under the “law of the child’s residence or domicile” or “the law
of the father’s residence or domicile . . . except as otherwise
provided in . . .” § 1432. 8 U.S.C. § 1101(c)(1). Section
1432(a)(3) rounded out the triumvirate and exempted mothers
of born-out-of-wedlock children from the legitimation
requirement by expressly adding that “the naturalization of the
mother” was sufficient “if the child was born out of wedlock
and the paternity of the child has not been established by
legitimation . . . .” See § 1432(a)(3).
As a result, §§ 1101(c)(1), 1432(a)(2) and (a)(3) treated
women and men differently: a naturalized mother could
transmit her citizenship to her out-of-wedlock child, regardless
of whether the father was alive; whereas a naturalized father in
the same position had the additional requirement of having to
legitimate the child in order to transmit his citizenship.
Our present concern is not with this differential
treatment, however. That affirmative steps to verify paternity,
including legitimation, may be taken if a citizen parent is an
unwed father has withstood constitutional scrutiny in the past,
on the basis that the relation between a mother and a child “is
verifiable from the birth itself,” and likewise “the opportunity
1
That is, provided that (1) the naturalization takes place
while the child is under eighteen years old, and (2) (a) the child
is residing in the United States as a lawful permanent resident
when the parent naturalizes or (b) thereafter begins to reside
permanently while under the age of eighteen. 8 U.S.C.
§ 1432(a)(4) & (5).
3
for the development of a relationship between citizen parent
and child . . . .” Nguyen v. INS., 533 U.S. 53, 62, 65 (2001);
see also Trimble v. Gordon, 430 U.S. 762, 771 (1977) (“The
more serious problems of proving paternity might justify a
more demanding standard for illegitimate children claiming
under their fathers’ estates than that required for [those]
claiming under their mothers’ estates . . . .” (emphasis added)).
Rather, like in Trimble, the present concern is with a father
being forever precluded from having his out-of-wedlock child
derive through him. This problem only arises where the child’s
mother is deceased, and the only avenue for legitimation under
the relevant law is through the marriage of the parents. In that
instance, naturalized fathers cannot transmit their citizenship
to their out-of-wedlock children as a result of the interplay
between §§ 1101(c) and 1432(a)(2), whereas naturalized
mothers can via at least § 1432 (a)(3).
Such is the case with the petition before us. Petitioner
Jose Francisco Tineo was born in the Dominican Republic to
unwed noncitizen parents who never married. His father
moved to the United States and naturalized. His noncitizen
mother soon after passed away. At the time, under the law of
either his or his father’s residence or domicile—the Dominican
Republic and New York—legitimation could only occur if his
birth parents married. So Tineo’s father was forever precluded
from having his son derive citizenship through him, despite
being a citizen and having cared for his son until the child was
21 years old. On the cusp of being removed from the United
States as a noncitizen, Tineo brings this Fifth Amendment
challenge to the relevant provisions on behalf of his now
deceased naturalized father. We hold that, in this
circumstance, the interplay of §§ 1101(c)(1), 1432(a)(2) and
(a)(3) cannot be squared with the equal-protection mandate of
4
the Due Process Clause of the Fifth Amendment. We will
therefore grant Tineo’s petition.
I. Background
A. Arrival in the United States
Tineo was born in the Dominican Republic on January
16, 1969. His parents, both citizens of the Dominican
Republic, never married. His father, Felipe Tineo, moved to
the United States and became a naturalized U.S. citizen in
1981. Two years later, his father married a legal permanent
resident.
Tineo came to live with his father once his birth mother
died in 1984. He was admitted to the United States as a lawful
permanent resident on June 15, 1985, pursuant to an alien
relative petition filed by his stepmother. He was 15 years old
at the time and lived with his father until he turned 21 in 1990.
B. Removal Proceedings
Felipe Tineo died an American in 2006. The question
of his son’s citizenship has come up on two occasions: once
before his death and once after. Both were in the context of
removal proceedings. This is in part because only noncitizens
may be removed. See 8 U.S.C. § 1229a(a)(1); see also Ng
Fung Ho v. White, 259 U.S. 276, 284 (1922) (“Jurisdiction in
the executive to order [removal] exists only if the person . . . is
a [noncitizen]. An assertion of U.S. citizenship is thus a denial
of an essential jurisdictional fact in a [removal] proceeding.”
(internal quotation marks omitted)) (quoted in Minasyan v.
Gonzales, 401 F.3d 1069, 1075 (9th Cir. 2005)); Gonzalez-
Alarcon v. Macias, 884 F.3d 1266, 1272 (10th Cir. 2018)
5
(noting that citizenship constitutes the denial of an essential
jurisdictional fact in a removal proceeding because only
noncitizens are removable). As a consequence, immigration
judges terminate removal proceedings where the government
cannot demonstrate that a petitioner is a removable noncitizen.
See 8 U.S.C. § 1229a(c)(3)(A); 8 C.F.R. § 240.8(a); see also
Dessouki v. Att’y Gen. of U.S., 915 F.3d 964, 966 (3d Cir.
2019) (“[T]he government failed to prove that Dessouki was [a
noncitizen]. So an immigration judge terminated his removal
proceedings.”).
1.
The first proceeding occurred when Tineo was
convicted for the sale of a controlled substance in New York
state court on October 19, 1993. He was issued a Notice to
Appear (“NTA”) dated April 20, 2000 and placed in removal
proceedings based on that conviction. The proceeding was
terminated on November 28, 2001, however, because, as proof
of
|
{
"pile_set_name": "FreeLaw"
}
|
832 F.Supp. 209 (1993)
Suella DEBOLT, et al., Plaintiffs,
v.
Mike ESPY, Secretary, U.S. Department of Agriculture, et al., Defendants.
No. C2-91-157.
United States District Court, S.D. Ohio, E.D.
July 18, 1993.
*210 *211 Sandra A. Scott, Southeastern Ohio Legal Service, Zanesville, OH, Gary Michael Smith, Southeastern Ohio Legal Service, New Philadelphia, OH, for Suella Debolt.
Sylvia T. Kaser, U.S. Dept. of Justice, Chief, Special Litigation Section, Washington, DC, O. Charles Hosterman, U.S. Atty., Columbus, OH, for all other defendants.
James D. Thomas, Robert L. Hust, Squire, Sanders and Dempsey, Columbus, OH, for Woodrose Ltd.
MEMORANDUM AND ORDER
BECKWITH, District Judge.
Background
This case is currently before the Court to consider several motions filed by the parties in this action. This matter arose when Suella Debolt filed a complaint against two private Defendants, the owner and management company of the housing project in which she resided, and against several federal Defendants, the Secretary of Agriculture, and the Administrator, State Director, and a District Director of the Farmers Home Administration (hereinafter the "FmHA"). Following their settlement with the Plaintiff, the private Defendants were dismissed from this case in February of 1992. In her complaint, the Plaintiff contends that the FmHA's occupancy limits combined with the agency's administration of the Rural Rental Housing program produce a discriminatory impact on families with children.
Beginning in 1986, Ms. Debolt resided in the Village Green Apartments, a "Section 515" project. The FmHA administers a program called the Rural Rental Housing program or Section 515 program. Under Section 515, the FmHA administers the Section 515 program through loan programs and through project operations. The loan programs aid in the construction of rental housing for very low, low, or moderate income persons or families residing in rural areas experiencing a shortage of adequate housing. 42 U.S.C. § 1485. Ms. Debolt's lease contained a provision that limited the number of occupants in her apartment to four persons. In 1991, when Ms. Debolt gave birth to a fourth child, she was in violation of the lease's four person occupancy limit. Accordingly, the management of the Village Green Apartments notified Ms. Debolt that she was required to move at the end of her lease term.
However, as part of the settlement of the eviction action pending against her, Ms. Debolt stayed in her apartment for an additional year. Later, in December of 1991, Ms. Debolt had a fifth child and she was unable to find a larger unit in FmHA's Rural Rental Housing Program, so she moved in with relatives.
On September 30, 1992, this Court granted the Plaintiffs' motion to certify this matter as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure. Accordingly, the Plaintiff class has been certified as:
*212 all persons who either are or would be eligible to reside, or to continue to reside within a project financed under FmHA's Section 515 Rural Rental Housing Program, but for the fact that their family size exceeds that permitted to reside in a two bedroom apartment under FmHA's occupancy standards.
The Plaintiffs' First Amended Complaint pleads a class action challenging the promulgation and enforcement of an FmHA regulation, 7 C.F.R. § 1944.553, as conflicting with 42 U.S.C. §§ 1471, 1480, and 1485. The Plaintiffs argue that § 1944.553 was promulgated in violation of the Administrative Procedure Act (hereinafter the "APA"). The Plaintiffs also argue that the Defendants improperly administer the Section 515 programs in the State of Ohio. The Plaintiffs assert that the Defendants have a duty to review and disapprove non-complying termination notices to tenants, but that they have failed to do so. The Plaintiffs also assert that the Defendants have approved a model rental agreement which does not provide for a yearly rental term. The Plaintiffs also allege that these federal officials failed to administer the Section 515 program to meet the needs of eligible families. The Plaintiffs specifically assert that this improper administration arbitrarily and unlawfully denies or terminates eligibility for financially eligible tenants and applicant families needing more than two bedrooms under FmHA's restrictive occupancy limits. The Plaintiffs further allege that these occupancy limits, along with the Defendants' improper administration, produce a discriminatory and unlawful disparate impact upon families with children, in violation of the Fair Housing Act.
The Federal Defendants' Motion for Judgment on the Pleadings
The federal Defendants have filed a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. In their motion, the federal Defendants assert that this Court is without jurisdiction to adjudicate the Plaintiffs' claims, except for those claims contained in Count 5 of the Plaintiffs' complaint. The federal Defendants first contend that Counts 3, 4, 6, 7, 8, 9, and 10 are barred by the doctrine of sovereign immunity. The federal Defendants also contend that the Plaintiffs have no private right of action under either the United States Housing Act of 1949 (hereinafter "USHA") or the Fair Housing Act, if sovereign immunity has been waived. The federal Defendants finally argue that the Plaintiffs lack standing to assert their claims that FmHA must finance rental housing units of a particular size.
However, the Plaintiffs argue that their claims are not barred by the doctrine of sovereign immunity as the law is allegedly well settled that statutory and constitutional claims for equitable relief are not barred by sovereign immunity. Also, the Plaintiffs argue that their claims for individual damages and attorney fees under Title VIII are not barred by sovereign immunity, since such immunity was waived by Congress.
Under the Administrative Procedure Act, Title 5 Section 702 provides, in part:
... An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party.
Thus, Section 702[1] of the APA acts to waive sovereign immunity for the Plaintiffs' USHA and constitutional claims. However, in their complaint, the Plaintiffs have only asserted one of their eight remaining claims under the APA. After a careful review of the authorities and arguments advanced by the parties in their memoranda, *213 this Court finds that it agrees with the federal Defendants that all of the Plaintiffs' claims should be asserted under the APA. Accordingly, the next question is whether the Plaintiffs should be given leave to amend their complaint to assert their claims under the APA. The federal Defendants argue that the Plaintiffs should not be given leave to amend their complaint in this case to invoke the Administrative Procedure Act, since the litigation has been pending for more two years. However, the Court notes that the federal Defendants did not raise this issue until they filed this motion for judgment on the pleadings. The first mention of this issue was contained in the federal Defendants' motion for judgment on the pleadings which was filed almost two years after the institution of the case.
The Court first notes the rationale expressed by Judge Whipple of the Western District of Missouri in the case of Tinsley v. Kemp, 750 F.Supp. 1001 (W.D.Mo.1990). In Tinsley, Judge Whipple stated, in part:
The intent of the complaint is obvious, so the amendment would be almost a formality. Nevertheless, plaintiffs' basis for bringing civil rights claims against a federal agency should be established explicitly in their complaint. Accordingly, leave will be granted to amend the complaint.
Id. at 1010. In another case, Judge Haight of the Southern District of New York allowed plaintiffs to amend their complaint to invoke the Administrative Procedure Act. Almonte v. Pierce, 666 F.Supp. 517, 524-5 (S.D.N.Y. 1987). In Almonte, Judge Haight noted that the case was at the early stage of litigation and that the federal Defendants had not demonstrated that any prejudice would result from allowing the plaintiffs to amend their complaint. Id. at 525.
In this case, the federal Defendants have not established that any specific prejudice would result from allowing the Plaintiffs to amend their complaint at this late date. The federal Defendants do allege that "voluminous" discovery has occurred in this case, although they do not allege how a technical amendment to the Plaintiffs' complaint would affect whatever discovery has already occurred in this case. The Court simply can not infer that prejudice would result from an amendment which is "almost a formality." See, 750 F.Supp. at 1010. Moreover, Rule 15(a) of the Federal Rules of Civil Procedure provides that "leave [to amend] shall be freely given when justice so requires." As in Tinsley, the Plaintiffs' intent as expressed by their complaint is evident, and the amendment in this case is thus a mere formality. Under the circumstances presented by this case, the Court finds that justice mandates that the Plaintiffs be given leave to amend their complaint. The Court hereby DEEMS the Plaintiffs' complaint to be amended so that their claims are now asserted under the Administrative Procedure Act. The federal Defendants' motion for judgment on the pleadings is hereby DENIED.[2]
The Motions for Summary Judgment Standard of Review
Rule 56(c) of the Federal Rules of Civil Procedure provides:
[Summary judgment] ... shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with
|
{
"pile_set_name": "FreeLaw"
}
|
204 Va. 316 (1963)
LESTER POLLARD
v.
ELIZABETH SMITH POLLARD.
Record No. 5548.
Supreme Court of Virginia.
April 22, 1963.
William Davis Butts, on brief for the appellant.
Present, All the Justices.
Lester Pollard's bill for divorce on the ground of wilful desertion by his wife Elizabeth Pollard was dismissed because it was shown that she became and was adjudged insane after the date of the alleged desertion. The evidence showed the desertion without cause on January 28, 1947; the adjudication of insanity on February 26, 1947; and that defendant had given no indication of insanity prior to the date of the desertion. On this evidence it was error to refuse the divorce. Code 1950, section 20-93, changes the prior rule of the cases in such situations and expressly states that insanity so occurring is no defense to a bill for divorce by the deserted spouse.
Appeal from a decree of the Circuit Court of the city of Hampton. Hon. Frnk A. Kearney, judge presiding. The opinion states the case.
William Alfred Smith, on brief for the appellee.
Case submitted on briefs.
CARRICO
CARRICO, J., delivered the opinion of the court.
In this divorce case we are, for the first time, presented the question of the application of Code, | 20-93, the pertinent provisions of which are as follows:
"Insanity of guilty party after commencement of desertion no defense. -- When the suit is for divorce from the bond of matrimony for wilful desertion or abandonment, it shall be no defense that the *317 guilty party has, since the commencement of such desertion, and within one year thereafter, become and has been adjudged insane, but at the expiration of one year from the commencement of such desertion the ground for divorce shall be deemed to be complete. . . ."
The question here presented arises from an appeal granted Lester Pollard, the complainant, from a final decree dismissing his bill of complaint for divorce, alleging wilful desertion and abandonment, filed against Elizabeth Smith Pollard, the defendant. The bill was dismissed because it was shown that the defendant had been adjudged insane subsequent to the date of the alleged desertion and prior to the expiration of one year from such date.
The bill alleged, and the evidence showed, that the Pollards were married on April 19, 1941; that they lived together for six years, during which time the complainant was a dutiful husband; that the defendant deserted the complainant on January 28, 1947, without just cause or excuse; that the desertion had continued uninterrupted since that date; that on February 26, 1947, the defendant was adjudged insane and was committed to Central State Hospital at Petersburg, where she was still confined when the case was heard. The evidence further showed that the defendant displayed no signs of mental illness at the time she left the complainant on January 28, 1947.
Prior to the enactment, in 1926, of what is now Code, | 20-93, it was the law in this state that when a defendant in a divorce case became and was adjudged insane between the date of desertion and the running of the statutory period prescribed to make the ground for divorce complete, such insanity was a bar to the granting of a divorce. We had so held in Wright Wright, 125 Va. 526, 99 S.E. 515, decided June 12, 1919, where it was stated that the reason for the rule was that, "an insane person is incapable of forming the intent, either to continue the desertion or to seek a reconciliation." 125 Va., at pp. 528, 529.
In the Wright case, Judge Prentis conceded that the rule there enunciated would, in some cases, cause undue hardship. He said, however, that, "[if] there be hardship, the question is one of public policy for the consideration of the General Assembly." 125 Va., at p. 529.
The legislature, perhaps motivated by the cases of hardship pointed to by Judge Prentis but, in any event, in sound consideration of public policy, saw fit to change the rule adopted in the Wright case. In *318 clear and unambiguous language it provided that insanity, occurring between the commencement of desertion and the running of the statutory period, is not a bar to divorce for wilful desertion or abandonment. A defense based upon such insanity, previously provided by judicial rule was, by legislative rule, declared no longer to exist. Now, when desertion occurs and continues uninterrupted for one year the ground of divorce is complete, notwithstanding that the defendant meanwhile has become and has been adjudged insane.
It is the duty of the courts to recognize and give effect to such a legislative rule. In the case before us, the evidence was sufficient to sustain the complainant's ground for divorce, and it was error to refuse him a decree because the defendant became and was adjudged insane in the one-year period following the desertion. Accordingly, the decree will be reversed and the cause remanded with direction to enter a decree awarding the complainant a divorce from the defendant for wilful desertion and abandonment for more than one year.
Reversed and remanded.
|
{
"pile_set_name": "FreeLaw"
}
|
636 F.2d 761
205 U.S.App.D.C. 53
UNITED STATES of Americav.Bernard GIBSON, Appellant.UNITED STATES of Americav.Deborah Y. HAGANS, Appellant.
Nos. 80-1225, 80-1228.
United States Court of Appeals,District of Columbia Circuit.
Argued Sept. 25, 1980.Decided Nov. 24, 1980.
Appeal from the United States District Court for the District of Columbia (D.C. Criminal No. 79-00552).
Patrick J. Christmas, Washington, D. C., for Bernard Gibson.
James H. Craddock, Washington, D. C., (appointed by this Court) for Deborah Y. Hagans.
Charles W. Brooks, Asst. U. S. Atty., with whom Charles F. C. Ruff, U. S. Atty., John A. Terry, Michael W. Farrell and James F. Rutherford, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.
Before ROBINSON, WILKEY and GINSBURG, Circuit Judges.
Opinion for the Court filed by Circuit Judge GINSBURG.
GINSBURG, Circuit Judge:
1
Defendants Gibson and Hagans appeal from a conviction for possession of heroin with intent to distribute. The appeal raises four issues: the legality of two searches conducted at the time of arrest and the propriety of two evidentiary rulings made by the district court.
I. Facts
2
Officer Haskins, an officer regularly assigned to narcotics investigations, was stationed at a third floor window of an apartment building in an area where residents had complained about narcotics transactions. He observed a Cadillac Seville carrying four persons pull into a parking lot adjoining the building and park "almost right up against the building." Transcript at 14. Haskins estimated that he was between thirty and forty-five feet from the occupants of the car. Using binoculars, Haskins observed this sequence of activity: defendant Gibson, seated in the driver's seat, counted out numerous glassine packets containing a white substance; defendant Hagans, seated behind Gibson, passed Gibson a sum of money; Gibson put most of the money and one of the packets into a black purse and gave the remaining money and packets to Hagans; Gibson then placed the black purse between the armrests of the front seat of the car.
3
Shortly thereafter, Haskins, joined by back-up officers, approached the car, identified himself, and ordered the four occupants from the car.1 While other officers held Gibson and searched Hagans, Haskins took the black purse from the car. He opened it and found $1325 and two packets of white powder, later identified as heroin. After arresting Gibson and Hagans, Haskins searched the trunk of the car and found a "partially opened" brown paper bag. Transcript at 32. He opened the bag further and removed from it two large vials of preludin pills. Meanwhile, officers had found sixteen packets of heroin and $60 on defendant Hagans and $561 on defendant Gibson.
4
The government charged Gibson and Hagans with possession of heroin and Gibson with possession of the preludin pills. The defendants moved to suppress the evidence found in the black purse and paper bag. After the district court denied the motion, the defendants agreed to a stipulated trial without a jury. The government in turn dismissed all charges except the charge of possession of heroin with intent to distribute. The district court found both defendants guilty of that charge.
II. Fourth Amendment Issues
5
Defendants attack the searches of both the black purse and the paper bag. Since the contents of the paper bag related solely to the charge against Gibson that was dismissed, we need not address the legality of that search. The two vials of preludin pills could not have contributed to the defendants' convictions for heroin possession. Thus the failure to suppress, even if erroneous, was not prejudicial.
6
Seizure of the black purse from the car was permissible under the automobile exception to the warrant requirement. Under Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), and our own decision in United States v. Hawkins, 595 F.2d 751 (D.C.Cir.1978), cert. denied, 441 U.S. 910, 99 S.Ct. 2005, 60 L.Ed.2d 380 (1979), the police could choose either to detain the car while seeking a warrant or to search the car immediately.
7
Defendants argue, however, that once the purse was seized, Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), mandated a warrant prior to police search of the purse's interior. We pretermit that argument, because the search was justified on other grounds. Officer Haskins testified that he observed Gibson putting packets containing a white substance into the black purse. This observation, we conclude, brings the case within the court's "plain view" holding in United States v. Johnson, 561 F.2d 832 (D.C.Cir.) (en banc ), cert. denied, 432 U.S. 907, 97 S.Ct. 2953, 53 L.Ed.2d 1080 (1977).
8
As a threshold matter, we note that Officer Haskins' use of binoculars to observe the activity in the car did not violate the Fourth Amendment. The car in which defendants were observed was parked in an open lot alongside an apartment building. Anyone happening along the street could have glanced into the car and observed the narcotics transaction.2 A person at any of the windows on the side of the building at which Officer Haskins was stationed might have looked into the car.3 Situated as they were, the defendants "had no right to assume that law enforcement officers would not enhance their ability to see ... them by use of various artificial means such as binoculars." United States v. Moore, 562 F.2d 106, 112 (1st Cir. 1977), cert. denied, 435 U.S. 926, 98 S.Ct. 1493, 55 L.Ed.2d 521 (1978). See United States v. Powell, 638 F.2d 71, (9th Cir. 1979) (amended Jan. 29, 1980) (upholding a conviction based in part on the actions of an officer who, standing 20-25 yards from a truck, used binoculars to peer into the truck).4
9
Officer Haskins' lawful observation of Gibson placing glassine packets in the black purse, and the police action taken within minutes thereafter make the instant case clearer than the one the court confronted en banc in Johnson, supra. There, a police officer, peering through the basement window of a residence, saw three men seated at a table holding narcotics paraphernalia and "a pyramid of white powder eight to ten inches high." 561 F.2d at 835. The officer returned forty minutes later with other officers and entered the house without a warrant. The three men were arrested, but the narcotics were no longer in sight. The officers thereupon searched the basement and eventually found bundles of narcotics between mattresses on a bed and in a canvas bag concealed in an old rug. The en banc opinion in Johnson concentrated on the questions whether the officer was trespassing when he looked through the basement window and whether, since there was a forty minute delay before entering the house, the officers should have obtained a warrant. Resolving those questions against the defendants, Judge McGowan, writing for the court, turned finally to the warrantless search of the basement. He reasoned that "the police ha(ving) seen a crime actually in progress with contraband in plain view ... they were fully authorized both to make arrests and to seek out the contraband." Id. at 844. Thus the search power could be "viewed as incident to arrest, or as deriving independently from the initial observation of the contraband." Id. at 845.
10
The instant case presents neither of the features that made Johnson problematic. No considerable time span separated the sighting of the packets from the search. Rather, the search followed on the heels of the observation. No extensive quest was involved. Officer Haskins proceeded at once to the place where the packets rested.5 In sum, guided as we are by the Johnson opinion, we find no error in the failure to suppress the evidence found in the black purse.
III. Evidentiary Rulings
11
Defendant Hagans attacks two of the district court's evidentiary rulings; both challenges are meritless.
12
First, Hagans complains that Larry Kenan, a lay witness for defendants, was not allowed to testify that in his opinion he could not have seen into the interior of the car if he had been standing at a second story window using binoculars. Kenan and defendant Gibson had attempted to recreate the circumstances surrounding the arrest in an effort to show that Officer Haskins could not have seen into the car carrying Gibson and Hagans. The two went to a second story window of the building in which Haskins had been stationed, made observations, and took pictures. They did not, however, take along binoculars. Kenan was allowed to testify about
|
{
"pile_set_name": "FreeLaw"
}
|
20 Kan. App. 2d 361 (1995)
ERROL JOE KAMPSCHROEDER, Appellee,
v.
NORMA W. KAMPSCHROEDER and SHERRYL HOLMES, Appellants.
No. 71,720
Court of Appeals of Kansas.
Opinion filed January 6, 1995.
Gerald L. Cooley, John M. Cooley, and Randall F. Larkin, of Allen, Cooley & Allen, of Lawrence, for appellant Norma W. Kampschroeder.
Stephen M. Fletcher, of Overland Park, for appellant Sherryl Holmes.
Byron E. Springer, of Barber, Emerson, Springer, Zinn & Murray, L.C., of Lawrence, for appellee.
Before GERNON, P.J., ELLIOTT and LEWIS, JJ.
LEWIS, J.:
Errol Joe Kampschroeder was born to the marriage of Robert and Waneta Kampschroeder. Waneta died in April *362 1980, and Robert married Norma in October 1980. The marriage was not accepted well by Errol Joe and appears to have affected the relationship between the parties from that point on.
Robert and Norma remained married until Robert's death in 1990. Upon Robert's death, most of his and Norma's assets were held in joint tenancy with the right of survivorship. Norma placed these assets in her own name and the name of Sherryl Holmes, her daughter. Errol Joe commenced the present action to impose a constructive trust on the jointly held assets. The trial court held in favor of Errol Joe, and Norma and Sherryl appeal.
We affirm the decision of the trial court.
Litigation of this nature is particularly fact driven. The facts in this case are not, unfortunately, unusual. This lawsuit is between a stepson and his stepmother over property owned by the son's father and stepmother's husband at the time of his death. There was an extensive trial, and the trial court made 32 detailed findings of fact. We have reviewed the record and conclude that all of the trial court's findings of fact are supported by substantial competent evidence.
After hearing all the evidence, the trial court held that Norma and Robert agreed, for the convenience of the parties, to hold most of their assets in joint tenancy. This was to allow the properties accumulated by both parties or brought into the marriage by both parties to become the property of their heirs after their death. They intended that "the properties of Robert go to Errol and the properties of Norma go to Sherryl." Although we concede that a different spin might have been put on the evidence, the analysis adopted by the trial court is substantially supported by the record.
The trial court found five significant factors in reaching its conclusions:
"a. The Antenuptial Agreement showed their original intentions to keep their property separate.
"b. Robert's attitude toward Sherryl's son was emphatic that he not receive any of Robert's property and was certainly corroborative of their intent that the properties of Robert go to Errol, and the properties of Norma go to Sherryl.
"c. Clearly, the taped conversation of Norma and Nancy corroborates the testimony and position of the Plaintiff. Norma's testimony that she wanted to *363 be fair did not refer to her deciding whether commingled property should be separated because that had already been decided by the parties. That was clear by their intent as indicated on the taped conversation. When Norma indicated she wanted to be fair it is clear from the testimony she was overwhelmed by the process of having to separate the property out, of deciding just what was hers and what was Robert's, and thus would be Errol's.
"d. Robert's comment: `Make certain that Norma will be cared for' is not the language or the statement of a man who was leaving his entire estate of some worth to his wife. The fact that he wanted to make certain Norma was cared for indicated to me on his part a confusion as to what the wills would be.
"e. Norma's comment: `This will is no good,' certainly again corroborates the testimony or the position that this was indeed, the intentions of the parties was to make certain that what was Robert's went to Errol, and what was Norma's went to Sherryl."
Once again, the analysis of the trial court is well within the evidence shown. The five factors cited by the trial court are clearly supported by substantial competent evidence. In the final analysis, the trial court concluded that the parties had entered into an understanding where each was to have the use of the income from the property of the other until their death, at which time the property would go to their respective children. This understanding formed the basis for the consideration of the agreement.
The trial court went on to conclude:
"Plaintiff has by clear and convincing standards shown that there was an agreement entered into, and, in fact, always understood by Norma and Robert, that upon the death of the first to die, the income from the property brought into the marriage by that person would be enjoyed by the surviving spouse, and then pass on to the children of Norma or Robert, depending upon the situation."
This conclusion is consistent with the trial court's findings of fact. Norma had breached this understanding, which gave rise to the constructive trust imposed.
The trial court went on to determine which assets were subjected to the constructive trust. The total value of those assets is $323,233.11. The constructive trust is such that Norma is to receive the income from these assets until her death, at which time they are to be paid to Errol Joe.
In appellants' brief is the following statement: "While defendants admit that the trial court's findings of fact are supported by substantial competent evidence in the record, defendants deny *364 that those findings of fact support the trial court's conclusions of law or its judgment." During oral argument before this court, counsel for Norma conceded that the trial court's findings of fact were supported by substantial competent evidence. On the other hand, counsel for Sherryl was unwilling to make such a concession. The problem with Sherryl's position is that her attorney did not file a separate brief. He joined in a single brief filed by the attorney for Norma. Sherryl is not in a position to contradict admissions made in the brief filed.
However, we have examined the record, and we conclude that the findings of fact are supported by substantial competent evidence.
An oral trust must be proved by clear and convincing evidence. Wehking v. Wehking, 213 Kan. 551, 554, 516 P.2d 1018 (1973). Upon review, we operate under the assumption that the trial court applied the correct standard of proof and was satisfied with the quantum of evidence introduced.
A constructive trust arises "`wherever the circumstances under which the property was acquired make it inequitable that it should be retained by the person who holds the legal title.'" Hile v. DeVries, 17 Kan. App.2d 373, 374, 836 P.2d 1219 (1992) (quoting Clester v. Clester, 90 Kan. 638, 642, 135 Pac. 996 [1914]).
An essential element of proving a constructive trust is a showing of fraud. However, there are two types of fraud, actual and constructive.
"Actual fraud is an intentional fraud, and the intent to deceive is an essential element of the action. Constructive fraud, however, is a breach of a legal or equitable duty which, irrespective of moral guilt, the law declares fraudulent because of its tendency to deceive others or violate a confidence, and neither actual dishonesty of purpose or intent to deceive is necessary. [Citation omitted.]" Moore v. State Bank of Burden, 240 Kan. 382, 389, 729 P.2d 1205 (1986), cert. denied 482 U.S. 906 (1987).
In the context in which this issue is presented, we are not dealing with actual dishonesty of purpose or intent to deceive. The evidence indicates Norma was guilty of a breach of duty amounting to constructive fraud.
Absent actual fraud, there are two additional elements which are required to be proven. First, there must be a confidential *365 relationship. Secondly, the confidence reposed must be betrayed, or a duty imposed by the relationship must be breached. See Winsor v. Powell, 209 Kan. 292, 302-03, 497 P.2d 292 (1972).
A confidential relationship is not presumed, and the burden of proving such a relationship existed rests upon the party asserting its existence. Paul v. Smith, 191 Kan. 163, Syl. ¶ 4, 380 P.2d 421 (1963). The mere fact that a transfer of property occurs between a husband and wife and no valuable consideration passes is not sufficient to raise a trust by implication. Clester v. Clester, 90 Kan. 638, 641, 135 Pac. 996 (1914).
Under the facts shown, Errol Joe seeks to impress a trust on property which Norma owns by virtue of a joint tenancy contract with Robert. There is no question but that the property held in joint tenancy may be the subject of a trust. Wehking v. Wehking, 213 Kan. 551, Syl. ¶ 2; Winsor v. Powell, 209 Kan. at 300.
The facts of this case are strikingly similar to those in Winsor v. Powell. In that action, the decedent, when discussing his affairs, spoke of his daughter, Sarah, and said, "`She'll do the right thing.'" 209 Kan. at 301. In this action, Robert told Errol Joe that he had $350
|
{
"pile_set_name": "FreeLaw"
}
|
Fourth Court of Appeals
San Antonio, Texas
January 23, 2019
No. 04-18-00781-CR, 04-18-00782-CR,
04-18-00783-CR & 04-18-00784-CR
The STATE of Texas,
Appellant
v.
Fernando Jefte MATA,
Appellee
From the County Court, Kinney County, Texas
Trial Court No. 10054CR, 10138CR, 10187CR & 9964CR
Honorable Spencer W. Brown, Judge Presiding
ORDER
The State’s Motion Relating to Case Record and to Findings of Fact and Conclusions of
Law is hereby DENIED.
_________________________________
Sandee Bryan Marion, Chief Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 23rd day of January, 2019.
___________________________________
KEITH E. HOTTLE,
Clerk of Court
|
{
"pile_set_name": "FreeLaw"
}
|
IN THE SUPREME COURT OF MISSISSIPPI
NO. 97-IA-00275-SCT
STATE OF MISSISSIPPI AND ROBERT ISHEE
v.
JANET DAMPEER
CONSOLIDATED WITH
NO. 97-IA-00276-SCT
STATE OF MISSISSIPPI AND ROBERT ISHEE
v.
BRITTANY DAMPEER
DATE OF JUDGMENT: 12/31/96
TRIAL JUDGE: HON. ROBERT G. EVANS
COURT FROM WHICH APPEALED: SMITH COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS: OFFICE OF THE ATTORNEY GENERAL
BY: JIM FRAISER
ATTORNEY FOR APPELLEE: JOHN RAYMOND TULLOS
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: REVERSED AND RENDERED - 06/24/1999
MOTION FOR REHEARING FILED:
MANDATE ISSUED: 7/15/99
BEFORE PRATHER, C.J., MILLS AND COBB, JJ.
MILLS, JUSTICE, FOR THE COURT:
STATEMENT OF THE CASE
¶1. On November 5, 1996, Janet Dampeer and her daughter, Brittany Dampeer, by and through her
mother, filed their separate complaints in the Circuit Court of Smith County against the State of Mississippi
and Robert Ishee, alleging negligence on the part of Robert Ishee while in the scope of his employment with
the State of Mississippi. Upon request of the Appellants, the two complaints were consolidated by an
Order of the Smith County Circuit Court dated March 3, 1997. On November 8, 1996, the State of
Mississippi and Ishee filed a MRCP 12(b)(6) motion to dismiss for failure to comply with the notice and
statute of limitations provisions of the Mississippi Tort Claims Act as set out in Miss. Code Ann. § 11-46-
11 (Supp.1998). Such motion was denied by the trial court. Aggrieved by the trial court's denial of the
Motion to Dismiss, the State of Mississippi and Robert Ishee appeal to this Court through interlocutory
appeal.
STATEMENT OF THE FACTS
¶2. On June 12, 1994, while Janet and Brittany Dampeer were parked in the Wal-Mart parking lot in
Magee, Mississippi, Robert Ishee backed a Boswell Retardation Center van into their automobile. The
Dampeers assert that, by reason of Ishee's negligence, both Janet and Brittany sustained serious physical
injuries and thereby did incur, and will continue to incur, substantial medical expenses. They note that Ishee
is an employee of the Boswell Retardation Center which is a facility owned by the State of Mississippi. In
their complaint they demand judgment of and from the Appellants in the amount of $25,000, plus costs of
Court.
¶3. In a letter dated June 15, 1994, the Dampeers' attorney notified the Boswell Retardation Center that he
represented Dampeer advising as follows:
This is to advise you that we represent Mrs. Janet Dampeer and her minor daughter, Brittany
Dampeer, for property damage and personal injuries sustained in a motor vehicle collision which
occurred on June 12, 1994 in the parking lot of Magee Wal-Mart, when your vehicle, being driven
by Robert H. Ishee, struck the rear of Mrs. Dampeer's 1990 Pontiac Grand Prix.
I shall appreciate you, or your liability insurance carrier, contacting me within the next fifteen days
concerning the contents of this letter.
¶4. Subsequently, in a letter dated June 21, 1994, and addressed to Ms. Dampeer, the Mississippi Tort
Claims Board wrote the following in regard to a notice of loss received from the Department of Mental
Health:
We have received notice of loss from the above agency. Please provide an estimate of repair to this
agency for consideration of your claim for damages.
If you have already sent estimates to a state agency or to the Tort Claims Board, please disregard this
notice.
¶5. On November 5, 1996, the Dampeers filed their separate complaints with the Smith County Circuit
Court. Subsequently, on November 8, 1996, the State of Mississippi and Robert Ishee filed their Motion to
Dismiss alleging that Dampeer violated the notice provisions and the statute of limitations provision of the
Mississippi Tort Claims Act. Such motion was denied on December 31, 1996. Following the denial of said
motion, the Appellants filed a Petition for Interlocutory Appeal on January 14, 1997. Such petition was
denied by the Circuit Court, but taken up on interlocutory appeal by this Court on February 6, 1998.
STANDARD OF REVIEW
¶6. This Court conducts a "de novo review of questions of law." Weeks v. Thomas, 662 So.2d 581, 583
(Miss. 1995). A motion to dismiss under MRCP 12(b)(6) "tests the legal sufficiency of the complaint." This
Court has held that "to grant this motion there must appear to a certainty that the plaintiff is entitled to no
relief under any set of facts that could be proved in support of the claim." Busching v. Griffin, 465 So.2d
1037, 1039 (Miss.1985) (citations omitted). Further, this Court stated in Weeks v. Thomas that in order to
survive a Rule 12(b)(6) motion, the complaint need only state a set of facts that will allow the plaintiff "some
relief in court." Weeks, 662 So.2d at 583.
ANALYSIS
WHETHER THE TRIAL COURT ERRED BY FAILING TO GRANT APPELLANT'S
MOTION TO DISMISS WHERE THE COMPLAINT WAS FILED SEVENTEEN
MONTHS AFTER THE TIME FOR FILING SUIT HAD LAPSED.
¶7. In their chief assignment of error, the State of Mississippi and Ishee assert that the Dampeers' suits are
barred by the one-year statute of limitations. This action is governed by the Mississippi Tort Claims Act.
The Act is set out in full in Miss. Code Ann. §§ 11-46-1, et seq. (Supp.1998). Section 11-46-11(3) reads
as follows:
(3) All actions brought under the provisions of this chapter shall be commenced within one (1) year
next after the date of the tortious, wrongful or otherwise actionable conduct on which the liability
phase of the action is based, and not after; provided, however, that the filing of a notice of claim as
required by subsection (1) of this section shall serve to toll the statute of limitations for a period of
ninety-five (95) days. The limitations period provided herein shall control and shall be exclusive in all
actions subject to and brought under the provisions of this chapter, notwithstanding the nature of the
claim, the label or other characterization the claimant may use to describe it, or the provisions of any
other statute of limitations which would otherwise govern the type of claim or legal theory if it were
not subject to or brought under the provisions of this chapter.
Miss. Code Ann. § 11-46-11 (Supp.1998).(1)
¶8. The Appellants correctly argue that section (3) of the governing statute laid out above demands that the
complaint be filed within one year of the actionable conduct. The statute also provides that the limitation
period be tolled for ninety-five days after the required notice of claim is filed with the chief executive officer
of the governmental agency. Therefore, when the proper requirements of bringing a claim for injury against a
governmental agency in the State of Mississippi are met, including the giving of the proper notice, the statute
of limitations allows one year, plus ninety-five days in which to bring the claim.
¶9. In the instant case the accident occurred on June 12, 1994. The complaint was filed November 5,
1996, nearly two years and five months after the accident. This claim is barred by the applicable one-year
statute of limitation. See Mississippi Dep't of Public Safety v. Stringer, No. 97-IA-00187-SCT, 1999
WL 353025 (Miss. June 3, 1999) (applying one-year Tort Claims Act statute of limitations to bar suit);
Marcum v. Hancock County Sch. Dist., No. 97-CA-00916-SCT, 1999 WL 353073 (Miss. June 3,
1999).
¶10. We do not discuss whether the notice of claim substantially complied with the notice of claim provision
under our recent authorities set forth in Reaves v. Randall, 729 So. 2d 1237 (Miss. 1998), and Carr v.
Town of Shubuta, No. 96-CT-01266-SCT, 1999 WL 62772 (Miss. Feb. 11, 1999). The Dampeers
failed to timely file their complaints under any set of facts before us. The trial court erred in denying the
motion to dismiss.
|
{
"pile_set_name": "FreeLaw"
}
|
218 F.2d 148
Charles E. TOLIVER, Appellant,v.UNITED STATES of America, Appellee.
No. 14395.
United States Court of Appeals Ninth Circuit.
Dec. 7, 1954.
Leslie C. Gillen, Gregory Stout, San Francisco, Cal., for appellant.
Lloyd H. Burke, U.S. Atty., John H. Riordan, Asst. U.S. Atty., San Francisco, Cal., for appellee.
DENMAN, Chief Judge.
1
Attorney Gregory S. Stout moves for appellant an extension of time to January 9, 1955 to file an opening brief which he failed to file when due on November 20, 1954. The ground of his application is that the attorney has accepted an assignment by a District Court of Appeal of the State of California, an inferior state court, to write a report pertaining to an analysis of a provision of the California Constitution.
2
It further appears that Mr. Stout's client is, during his appeal, in the custody of this court in the San Francisco County Jail and that during such custody he is not serving time on the sentence from which his appeal is pending. That is to say, the wrong already done his client by not filing even now the brief due November 20, 1954, he seeks to extend by adding 30 days more to his client's imprisonment.
3
Whether such wrongful conduct by an officer of his court constitutes a contempt is not to be determined on this motion. However, unless the appellant's brief is filed within ten days hereof, the question of Mr. Stout's conduct is certain to be raised.
4
Time to file appellant's opening brief is extended to December 17, 1954.
|
{
"pile_set_name": "FreeLaw"
}
|
End of preview. Expand
in Data Studio
README.md exists but content is empty.
- Downloads last month
- 1