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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" }
341 Mich. 495 (1954) 67 N.W.2d 718 ROBYNS v. CITY OF DEARBORN. Docket No. 56, Calendar No. 46,289. Supreme Court of Michigan. Decided December 29, 1954. John J. Fish, for plaintiffs. Dale H. Fillmore, Corporation Counsel, and B. Ward Smith, Frederick G. Weideman and James A. Broderick, Assistants Corporation Counsel, for defendant. DETHMERS, J. Defendant appeals from decree enjoining enforcement of a zoning ordinance against plaintiffs' property because unreasonable and confiscatory as applied thereto. Each of plaintiffs owns 1 of 8 lots on the south side of Ford road in the city of Dearborn across from the lots in Dearborn township involved in Ritenour v. Township of Dearborn, 326 Mich 242. Seven of the lots have a width of 20 feet and one 24.44 feet, fronting on Ford road, with depths varying from 100 to 110 feet. Some of plaintiffs purchased their lots prior to, and some after, the adoption of the original ordinance which zoned the lots for residence C use and some bought after adoption of an amendment changing the zoning to the present residence A classification. Original building restrictions, since expired, limited use of some of the lots to business purposes and others to business or residential. 498 Lots across the road in the township have been zoned light commercial since our holding in Ritenour and many are so used. Lots on the south side of Ford road, immediately west of the lots here involved, are zoned business B and those to the east, running for a considerable distance, are vacant. The ordinance in question provides "there shall be a minimum of 10 feet between residences." Plaintiffs prayed that the ordinance be decreed to be unconstitutional and void as applied to their lots, that they be decreed to be business property, that defendant be enjoined from enforcing the ordinance with respect thereto, and that a building permit for nonresidential purposes be required to issue as relates to 1 of the lots. Defendant says the bill is multifarious. This it predicates in part on the fact that some plaintiffs acquired lots before, and some after, the ordinance and its subsequent amendment, suggesting that, on the authority of Hammond v. Bloomfield Hills Building Inspector, 331 Mich 551, the rights of those who purchased before the ordinance differ, for that reason, from those who bought thereafter. Hammond does not so hold. Provisions of a zoning ordinance void as relates to a lot because unreasonable and confiscatory are not made valid with respect thereto by the transfer of title from the owner to another. Faucher v. Grosse Ile Township Building Inspector, 321 Mich 193. CL 1948, § 608.1 (Stat Ann § 27.591), permits joining a number of plaintiffs if sufficient grounds appear for uniting the causes of action in order to promote the convenient administration of justice. That is the consideration warranting joinder here, particularly because defendant is not thereby prejudiced. Gilmer v. Miller, 319 Mich 136. The fact that 1 plaintiff seeks, in addition to injunctive relief, a provision in the decree requiring issuance to him of a building permit, which might be 499 accomplished by mandamus, does not render the bill multifarious inasmuch as equity, having acquired jurisdiction to restrain defendant as prayed, may retain it to grant complete relief and finally dispose of the controversy even though some of the questions propounded could have been raised and some of the relief sought could have been obtained in a law action. City of Ecorse v. Peoples Community Hospital Authority, 336 Mich 490. Defendant contends that plaintiffs had an adequate remedy at law for testing the validity of the ordinance, namely, mandamus to compel issuing of building permits of a character prohibited by the ordinance. As relates to 7 of the plaintiffs, it does not appear that they were ready to build or desired such permits. From the pleadings it does appear that defendant was about to institute condemnation proceedings against the lots in question and others for park and green-belt purposes. Defendant may not, through the device of zoning for a use to which property is not suited, depress its value preliminary to condemning it for public purpose. Grand Trunk Western R. Co. v. City of Detroit, 326 Mich 387; Long v. City of Highland Park, 329 Mich 146. Under such circumstances, equity alone could afford plaintiffs the necessary remedy. Resort was had to equity for the purpose of having zoning ordinances declared invalid and their enforcement enjoined in Ritenour v. Township of Dearborn, supra; Elizabeth Lake Estates v. Township of Waterford, 317 Mich 359; Faucher v. Grosse Ile Township Building Inspector, supra; Long v. City of Highland Park, supra; Hitchman v. Township of Oakland, 329 Mich 331. Is the ordinance unreasonable and confiscatory as applied to plaintiffs' lots? It limits use to residences which, under its provisions, cannot be constructed on these lots at a width of more than 10 feet, comparable, 500 in this respect, to the situation in Ritenour. Other requirements of the ordinance with respect to area, minimum width of side yards, et cetera, cannot be complied with so as to permit construction of usable residences. Defendant's answer admits, in effect, plaintiffs' charge, that the provisions of the ordinance make use of the lots for residential purposes physically impossible, by alleging, in response thereto, that plaintiffs could comply by combining 2 or more lots for the building of residences thereon. We think the decision in Ritenour controlling here. Distinctions between that case and this in the respect that there the plaintiff acquired the property prior to enactment of the ordinance, that the property there involved had once been zoned for business purposes, and that the action there was brought by plaintiff within a year after adoption of the ordinance while here it was not brought until 22 years later, do not serve to alter the fact that the provisions of the ordinance would render plaintiffs' property here almost worthless. That the city may not do. Long v. City of Highland Park, supra. Transfer of title, or the lapse of 22 years, after adoption of the ordinance does not relieve the ordinance of its unreasonable and confiscatory character. It is invalid as applied to plaintiffs' lots. Finally, defendant urges that plaintiffs have no standing in a court of equity because they did not first apply to the appeal board created under the ordinance. This point was not raised below nor in the statement of reasons and grounds for appeal and, accordingly, is not entitled to consideration here. At all events, it is without merit. The appeal board could not determine the validity of the ordinance nor afford plaintiffs the necessary relief under the circumstances of this case when building permits were not desired but redress against measures likely to depress value prior to condemnation 501 proceedings was sought. Austin v. Older, 278 Mich 518. Affirmed, with costs to plaintiffs. BUTZEL, C.J., and CARR, BUSHNELL, SHARPE, BOYLES, REID, and KELLY, JJ., concurred.	{ "pile_set_name": "FreeLaw" }
791 N.E.2d 568 (2003) 339 Ill. App.3d 1086 274 Ill.Dec. 476 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Michael SLOVER, Jr., Michael Slover, Sr., and Jeanette Slover, Defendants-Appellants. No. 4-02-0892. Appellate Court of Illinois, Fourth District. June 6, 2003. 569 Danile D. Yuhas and John M. McCarthy, both of State Appellate Defender's Office, of Springfield, for appellants. Scott Rueter, State's Attorney, of Decatur (Norbert J. Goetten, Robert J. Biderman, and Denise M. Ambrose, all of State's Attorneys Appellate Prosecutor's Office of counsel), for the People. Justice TURNER delivered the opinion of the court: In May 2002, a jury convicted defendants, Michael Slover, Jr., Michael Slover, Sr., and Jeanette Slover, of the first degree murder of Karen Slover. Michael, Jr., and Michael, Sr., were also convicted of concealment of a homicidal death. All three defendants were sentenced to prison and filed a notice of appeal with this court. In September 2002, the State filed a motion to release defense exhibits for scientific testing. The trial court granted the motion and found no just reason for delaying the appeal. On appeal, defendants argue the trial court had no jurisdiction to order testing of defense exhibits because those exhibits are part of the record on appeal. The State argues defendants' appeal must be dismissed because the trial court's order did not constitute a final order or judgment from which defendants could appeal. We affirm. I. BACKGROUND In May 2002, a jury convicted defendants Michael Slover, Jr., and his parents, Michael Slover, Sr., and Jeanette Slover, of the first degree murder of Michael, Jr.'s former wife, Karen Slover. Michael, Jr., and Michael, Sr., were also convicted of concealment of a homicidal death. In June 2002, the trial court sentenced all three defendants to 60 years' imprisonment. Michael, Jr., and Michael, Sr., also received five-year prison sentences for their convictions of concealment of a homicidal death. In July 2002, defendants filed motions to reduce their sentences, which the trial court denied. Thereafter, defendants filed a notice of appeal (No. 4-02-0587). In September 2002, the State filed a motion, naming all three defendants, to 570 release defense exhibits for scientific testing. The motion indicated three defense exhibits admitted during defendants' trial contained some animal hairs unsuitable for identification, along with some possible cat hairs, that were taken by police from a 1992 Bonneville. Further, Mary Slover, the daughter of Michael, Sr., and Jeanette, and the sister of Michael, Jr., formerly lived at a house in Springfield that a forensic scientist identified to have cat and dog hairs following an investigatory examination. The State indicated a petition had been filed under the Juvenile Court Act of 1987 (705 ILCS 405/1-1 through 7-1 (West 2000)) in Macon County case No. 00-JA-12, alleging the biological son of Michael, Jr., and the adopted son of Mary was a neglected and abused minor. The State had filed an expedited petition for termination of parental rights. The State indicated the doctor who performed canine deoxyribonucleic acid (DNA) testing in the defendants' murder case was willing to perform feline DNA testing of the State's enumerated exhibits and the cat hair from Mary's former residence. The State submitted "the release of the three defense exhibits for feline DNA testing would advance the interests of justice in the pending juvenile case of [No.] 00-JA-12." In September 2002, the trial court held a hearing on the State's motion. Defendants' counsel argued the trial court had no jurisdiction as their appeals had been filed. If the court did have jurisdiction, defendants argued, the State wanted to subject the cat hair to destructive testing, which would be prejudicial to defendants if the appellate court ordered further proceedings in the trial court. The trial court found it had jurisdiction to rule on the matter, stating it had authority to enter orders with regard to property in its custody. The court also found the State presented good cause for destructive testing of the evidence. As a condition of the testing, the court required a photograph taken to identify the exhibits. Defense counsel requested the clerk be directed to file a notice of appeal. The trial court found its order was governed by the civil appeal rules pursuant to Supreme Court Rule 612 (177 Ill.2d R. 612). In its written order pursuant to Supreme Court Rule 304(a) (155 Ill.2d R. 304(a)), the court concluded there was no just reason for delaying the appeal. Per defense counsel's request, the trial court stayed its order until further order by the court. This appeal followed. In October 2002, Jeanette filed a motion to join in the interlocutory appeal. She later filed a notice of appeal in November 2002. In February 2003, this court allowed Jeanette's motion for leave to file a late notice of appeal. II. ANALYSIS A. Appellate Court Jurisdiction Before we determine whether the trial court had jurisdiction to consider the State's motion, we must determine whether this court has jurisdiction to consider defendants' appeal. In their appellate brief, defendants contend this court has jurisdiction pursuant to Supreme Court Rules 603 and 606 pertaining to criminal appeals (134 Ill.2d R. 603; 188 Ill.2d R. 606). The State argues we must dismiss defendants' appeal. The trial court issued an order pursuant to Supreme Court Rule 304(a), finding no just reason for delaying appeal of its order granting the State's motion to release defense exhibits for scientific testing. Supreme Court Rule 304(a) provides, in part, as follows: "If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than 571 all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying either enforcement or appeal or both. * * In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties." 155 Ill.2d R. 304(a). When the criminal appeal rules govern, Rule 304(a) does not apply. In re D.D., 337 Ill.App.3d 998, 1008, 272 Ill.Dec. 706, 788 N.E.2d 10, 17 (2002). However, an appellate court's jurisdiction to consider an appeal "does not derive solely from a party's invocation of the correct supreme court rule." In re O.H., 329 Ill.App.3d 254, 257, 263 Ill.Dec. 718, 768 N.E.2d 799, 801 (2002). Moreover, the trial court indicated the civil appeal rules applied after looking for guidance under Supreme Court Rule 612, setting forth the procedural matters that are governed by civil appeal rules. The court noted civil appeal rules applied to the removal of records from the reviewing court. Supreme Court Rule 372 (155 Ill.2d R. 372), a civil appeal rule applicable to criminal appeals, focuses on the removal of the record from the appellate court, not the removal of exhibits from the record on appeal for scientific testing. However, the similarity between the procedural matters of removing records from the reviewing court and allowing testing of an exhibit that is part of the record on appeal is enough to enable the case to fall within the civil appeal rules. Here, the order allowing destructive testing of the exhibits created a final judgment. As this amounted to a procedural matter, along with the trial court's written order pursuant to Rule 304(a), we conclude this case is properly before us. B. Trial Court Jurisdiction Generally, "[t]he filing of a notice of appeal transfers jurisdiction to the appellate court instanter and simultaneously divests the trial court of jurisdiction to enter additional orders of substance in a case." People v. Kolzow, 332 Ill.App.3d 457, 459, 265 Ill.Dec. 532, 772 N.E.2d 903, 904 (2002). The trial court may not then enter orders changing or modifying a judgment or its scope or interfering with the review of the judgment. Kolzow, 332 Ill. App.3d at 459, 265 Ill.Dec. 532, 772 N.E.2d at 905. The trial court does retain jurisdiction to determine matters that are collateral or incidental to the judgment being appealed. Brownlow v. Richards, 328 Ill. App.3d 833, 837, 263 Ill.Dec. 31, 767 N.E.2d 482, 485 (2002). In this case, the trial court's order did not modify the judgment or interfere with the review of that judgment. Further, the court's order did not dispose of the issues defendants had invoked our jurisdiction to review in their murder appeal. Thus, defendants' criminal appeal did not automatically divest the trial court of jurisdiction in regard to the State's motion. Defendants argue the trial court did not have jurisdiction to order the scientific testing of defense exhibits. We disagree. Defendants contend the physical evidence, such as the cat hair, is part of the record on appeal based on Supreme Court Rule 608 (177 Ill.2d R. 608), and thus the trial court could not make substantive rulings on	{ "pile_set_name": "FreeLaw" }
647 F.Supp. 1035 (1986) James MESSER, Jr., Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification Center, Respondent. Civ. A. No. C86-173R. United States District Court, N.D. Georgia, Rome Division. July 7, 1986. 1036 Howard J. Manchel, Atlanta, Ga., for appellant. Mary Beth Westmoreland, Asst. Atty. Gen., Atlanta, Ga., for respondent. ORDER ROBERT H. HALL, District Judge. James Messer, Jr., who is scheduled to be executed before July 9, 1986, petitions this court for a writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254. This court has stayed petitioner's execution pending a full review of the issues raised by the petition. For the reasons set forth herein, the court DENIES prisoner's petition, and accordingly lifts the stay of execution. FACTS Petitioner, James E. Messer, Jr., was indicted by the grand jury of Polk County, Georgia, during the November Term, 1979, for kidnapping with bodily injury and for the murder of Rhonda Tanner. A special plea of insanity was filed on behalf of the petitioner. After two subsequent state sponsored psychiatric examinations established that petitioner was mentally competent to stand trial, the special plea of insanity was withdrawn. At his trial petitioner pleaded not quilty. Following a trial by jury on February 7, 1980, petitioner was found guilty on both charges and sentenced to death for both offenses. Petitioner received the death penalty for murder after the jury found the presence of two statutory aggravating circumstances, (1) that the murder was committed during the course of another capital felony, the kidnapping with bodily injury, and (2) that the murder was outrageously and wantonly vile, horrible or inhuman in that it involved torture to the victim. The jury found one aggravating circumstance with respect to the kidnapping with bodily injury charge, that the crime was outrageously or wantonly vile, horrible or inhuman in that it involved aggravated battery and torture to the victim. The death sentence was imposed 1037 on February 8, 1980. Petitioner's motion for a new trial was denied after hearing on May 20, 1980. On direct appeal, the petitioner raised six issues, including denial of the motion for an independent psychiatric examination. The Supreme Court of Georgia considered these allegations and also conducted a sentence review, finding that the evidence supported the verdict, that the sentence was not imposed under passion or prejudice, that the evidence supported the aggravating circumstances, that the death penalty was not disproportionate and that the charge at the sentencing phase was proper. Thus, the court affirmed both the convictions and the sentences. Messer v. State, 247 Ga. 316, 276 S.E.2d 15 (1981). A motion for rehearing was denied on March 18, 1981. Petitioner subsequently filed a petition for a writ of certiorari in the Supreme Court of the United States challenging the denial of an independent psychiatric examination. This petition was denied on October 5, 1981. Messer v. Georgia, 454 U.S. 882, 102 S.Ct. 367, 70 L.Ed.2d 193 (1981). Petitioner then filed a petition for habeas corpus relief in the Superior Court of Butts County, Georgia, on January 5, 1982. On or about January 25, 1982, the petitioner filed an amendment to the petition and a brief in support. Petitioner did not raise the denial of the motion for independent psychiatric examination. The state habeas corpus court denied relief without a hearing on February 23, 1982. Petitioner's Application for Certificate of Probable Cause to Appeal was denied on April 20, 1982. Subsequently, a petition for a writ of certiorari was filed in which the petitioner challenged the admission of his confession and asserted that he was arrested without probable cause. Certiorari was denied on October 4, 1982. Messer v. Zant, 459 U.S. 882, 103 S.Ct. 182, 74 L.Ed.2d 148, rehng. den., sub. nom, Cape v. Zant, 459 U.S. 1059, 103 S.Ct. 479, 74 L.Ed.2d 626 (1982). Petitioner filed an application for habeas corpus relief in the United States District Court for the Northern District of Georgia, Rome Division, on November 23, 1982. In that petition, the petitioner raised the denial by the trial court of the motion for an independent psychiatric examination and funds for an expert. The case was transferred to the Atlanta Division and an evidentiary hearing was held before United States Magistrate Joel M. Feldman on August 5, 1983. On February 1, 1984, the magistrate entered a report and recommendation recommending that relief be denied as to the conviction, but suggesting that relief be granted as to the sentencing phase finding that counsel was ineffective during the closing argument at the sentencing phase. On March 30, 1984, this court entered an order adopting all portions of the magistrate's report and recommendation except that portion dealing with the effectiveness of counsel at the sentencing phase. This court concluded that petitioner had failed to show any prejudice resulting from this allegation. Messer v. Francis, No. C82-419A (N.D.Ga. March 30, 1984) (Hall, J.). This court also ruled on certain other allegations not addressed by the magistrate and denied a certificate for probable cause to appeal. Id. The Eleventh Circuit Court of Appeals granted the certificate on June 1, 1984. Subsequently, a panel of the Eleventh Circuit Court of Appeals affirmed this court's decision denying habeas corpus relief in an opinion dated April 30, 1985. Messer v. Kemp, 760 F.2d 1080 (11th Cir. 1985). Only three issues were raised on appeal; the denial of the motion for a mistrial, the allegation of ineffective assistance of counsel and the question of whether jury instructions were correct on the kidnapping with bodily injury charge. A petition for rehearing en banc was denied on August 23, 1985. Petitioner then filed a petition for a writ of certiorari in the Supreme Court of the United States which was denied on January 21, 1986. Messer v. Kemp, ___ U.S. ___, 106 S.Ct. 864, 88 L.Ed.2d 902 (1986). On June 17, 1986, an order was signed setting a new execution time frame beginning at noon on July 2, 1986, and ending at *1038 noon on July 9, 1986. Petitioner filed a petition for habeas corpus relief in the Superior Court of Butts County, Georgia on June 26, 1986, raising five allegations, including the allegation that he had been denied funds for an independent psychiatric examination and that the death penalty was applied in a discriminatory fashion. No evidence was proffered to the state habeas corpus court by the petitioner, nor did petitioner assert that any was available. On June 27, 1986, respondent filed a motion to dismiss the petition. At 8:00 a.m. on that day, a hearing was held before the Honorable Hal Craig on the petition, request for a stay and motion to dismiss. At 3:10 p.m. on that date, an order was filed denying the stay, dismissing the petition as successive as to four counts and finding the remaining count to be without merit. Petitioner filed a notice of appeal and an application for certificate of probable cause to appeal that afternoon. On Monday morning, June 30, 1986, petitioner filed an amendment to his application for a certificate of probable cause. Respondent filed a response to the application. On that same date, the Supreme Court of Georgia denied the application for a certificate of probable cause to appeal. Petitioner then filed the current petition with this court on July 1, 1986. This court orally granted petitioner's motion to proceed in forma pauperis. DISCUSSION Petitioner contends that he was convicted and sentenced to death in violation of the Georgia Constitution and the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. Petitioner argues that under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) he was denied funds to have an independent psychiatrist to aid in his defense, in violation of his rights under the Fourteenth Amendment. (Petition for Writ of Habeas Corpus custody ("Petition")). Petitioner also argues that the imposition of the death penalty violates the Eighth Amendment's prohibition of cruel and unusual punishment because it will be applied in a racially discriminatory manner. As an initial matter, the court finds that petitioner's claim that imposition of the death penalty violates the Eighth Amendment's prohibition of cruel and unusual punishment because it will be applied in a racially discriminatory manner, is without merit and cannot provide a basis for the relief sought. McCleskey v. Kemp, 753 F.2d 877 (11th Cir.1985) (en banc).[1] Respondent pleads abuse of the writ under Rule 9(b) of the Rules Governing § 2254 cases. Specifically, respondent asserts that all claims raised in the instant petition have been raised in a prior federal habeas corpus petition. (Respondent's Answer/Response, "Response").[2] Therefore, to determine whether any ground for relief is properly before this court, the court must consider whether petitioner has abused the writ in bringing a successive petition. This court holds that petitioner abused the writ in raising his Ake (denial of independent psychiatric evaluation) claim in his second habeas petition. Rule 9(b) of the Rules Governing 28 U.S.C. § 2254 provides: A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and if the prior determination was on the merits, or if new and different grounds	{ "pile_set_name": "FreeLaw" }
337 F.Supp. 150 (1972) CITY OF NEW YORK, Plaintiff, and Bush Terminal Railroad Users Association, Inc., et al., Intervening Plaintiffs, v. The UNITED STATES of America et al., Defendants. Civ. No. 71-C-1639. United States District Court, E. D. New York. January 20, 1972. 151 152 Louis Walters, Asst. Corp. Counsel (J. Lee Rankin, Corp. Counsel for City of New York, Peter C. Demetri and Eleanor Oppenheimer, Asst. Corp. Counsels, of counsel), for plaintiff. Stacey L. Wallach, New York City (Tenzer, Greenblatt, Fallon & Kaplan, New York City, of counsel), for intervening plaintiff, Bush Terminal Users Ass'n. William C. Mahoney, Washington, D. C., for intervening plaintiffs, United Transportation Union and Brotherhood of Railway, Airline & Steamship Clerks, Freight Handlers, Express & Station Employes. John C. McTiernan, Asst. Counsel, N. Y. State Dept. of Transportation, Albany, N. Y., for intervening plaintiff, State of New York. Lloyd H. Baker, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty. Eastern District of New York, of counsel), for defendant, the United States. Theodore C. Knappen, Washington, D. C., Asst. Gen. Counsel, for defendant, Interstate Commerce Commission. G. Clark Cummings, New York City, for defendant, Bush Terminal R.R. Before FRIENDLY, Chief Circuit Judge, MISHLER, Chief District Judge, and WEINSTEIN, District Judge. FRIENDLY, Chief Circuit Judge: In this action against the United States, the Interstate Commerce Commission, Bush Terminal Railroad and certain of the latter's officers and directors, the City of New York, joined by several intervenors, asks us to annul an order of the Interstate Commerce Commission dated December 13, 1971, in F.D. No. 25896, which authorized abandonment of the entire line of Bush Terminal Railroad Company (the Railroad) in Kings County, New York, and Hudson County, New Jersey. The order, which was effective immediately, was entered after the Railroad on December 1, 1971, had unilaterally imposed an embargo on all outgoing freight and announced that on December 15, 1971, it would impose a similar embargo on all incoming freight, because of the allegedly unseaworthy condition of its marine equipment, and after users of the Railroad had begun an action to enjoin the embargo which they considered to be an unauthorized abandonment. The Railroad terminated operation on December 13 immediately on learning of the Commission's order.[1] On December 17, the City began this action and sought a temporary restraining order, see 28 U.S.C. § 2284(3). Judge Weinstein denied this but set the City's motion for a temporary injunction for argument on December 22 before a three-judge court which he asked to have convened, 28 U.S.C. §§ 2321, 2325. At the argument, the Bush Terminal Users Association, Inc., United Transportation Union, the Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employes, and the Department of Transportation of the State of New York were allowed to intervene as plaintiffs. Issuance of 153 a temporary restraining order was again refused, but we reserved decision on the motion for a temporary injunction pending the filing of the record and briefs. The Railroad, organized in 1903, is a wholly-owned subsidiary of Bush Universal, Inc., which had been known as Bush Terminal Company until July, 1968. The purpose of establishing the Railroad was to acquire franchise rights in city streets and extend to new buildings railroad services then being provided in Brooklyn, New York, by Bush Terminal. The line owned by the Railroad is only 1.8 miles long. This connects with some 13.56 miles of track in Brooklyn and car-float and towage facilities that are operated by the Railroad but are owned and had previously been operated by Bush Terminal, allegedly as agent for the Railroad and for trunk line carriers serving New York Harbor. In Bush Terminal R.R. Co. Operation, 257 I.C.C. 375 (1944), the Commission authorized the Railroad, pursuant to § 1(18) of the Interstate Commerce Act, to extend its railroad by acquiring through lease the trackage and other facilities owned by Bush Terminal. The lease took effect on January 1, 1945. Since then the Railroad, as a common carrier, has moved cars between industries in and near the Bush Terminal in Brooklyn across New York Harbor to and from various trunk line terminals in New Jersey. In December, 1968, Bush Terminal, having changed its name and become a conglomerate, controlled by Universal Consolidated Industries, Inc., a still more conglomerated conglomerate, conveyed all its real estate, including some of the land over which the Railroad operates, to a newly organized, wholly owned subsidiary, Bush Terminal Company, Inc. This new subsidiary assumed its parent's obligations under the lease to the Railroad. We will generally refer to Bush Universal, Inc. and Bush Terminal Company, Inc., simply as "the Terminal Company." The Railroad, on October 23, 1969, filed an application under § 1(18) of the Interstate Commerce Act for permission to abandon the operation both of its owned and of its leased properties. Hearings were held in late June, 1970. The application was opposed by users of the service, governmental and quasi-governmental bodies and labor organizations representing the Railroad's employees. In their post-hearing briefs the City, the State, and the Users Association for the first time raised the issue that authorization of abandonment by the lessee, the Railroad, would not relieve the lessor, the Terminal Company, of its independent obligation to operate the leased properties, an obligation that would revive upon discontinuance of operations by the lessee. See Lehigh Valley R.R. Co. Proposed Abandonment of Operation, 202 I.C.C. 659, 663 (1935); Norfolk S.R.R. Co. Receivers Abandonment, 221 I.C.C. 258, 260 (1937); Livestock Terminal Service Co. Abandonment of Operation, 257 I.C.C. 1, 7 (1944); Hoboken R.R., Whse. & S.S. Connecting Co. Operation, 257 I.C.C. 739, 743-44 (1944). The Railroad responded, correctly enough as a matter of law, see Meyers v. Famous Realty, Inc., 271 F.2d 811, 814-815 (2 Cir. 1959), cert. denied, 362 U.S. 910, 80 S.Ct. 681, 4 L.Ed.2d 619 (1960), that this doctrine applies only when the lessor was a "carrier by railroad," see 49 U.S.C. § 1(18), when the lease was made; it claimed that the Terminal Company was not. On June 3, 1971, the examiner rendered a report recommending authorization of the abandonment. He found that, despite various promotional efforts, the Railroad's traffic had seriously declined, due to motor vehicle competition, and the moving of industries away from the Brooklyn area served by it; that the Railroad "has sustained substantial losses for many years, and prospects for reversing the decline in traffic and for profitable operations are very slim;" and that the property owned and leased by the Railroad was in such poor condition that an expenditure by it of approximately $930,000 would be required for 154 rehabilitation of roadway and marine equipment.[2] With the Railroad's long record of losses and negative net worth, these funds could not be obtained except from the parent. The examiner concluded that, despite undoubted hardship to users, which might require many to move, with consequent loss of employment opportunities and revenues to the City and the State, there was no alternative to authorizing abandonment by the Railroad. Turning to the legal argument concerning the obligations of Terminal Company as lessor, the examiner concluded that this raised a factual issue of the lessor's earlier common carrier status, which had never previously been resolved and which could be tested in an action by the objecting parties under § 1(18) and (20). Thus, he declined to condition abandonment by the Railroad upon resumption of operation of the leased properties by the Terminal Company. Following the Commission's general practice in cases of complete abandonment where neither the carrier nor a parent carrier realizes economic advantages other than the termination of losses,[3] see Chicago, A. & S.R.R. Co. Receiver Abandonment, 261 I.C.C. 646, 652 (1946); Okmulgee Northern Ry. Co. Abandonment, 320 I.C.C. 637, 645-646 (1964); Manifestee & Repton R.R. Co. Abandonment, 324 I.C.C. 489, 492 (1964); Tennessee Central Ry. Co. Abandonment of Operations, 333 I.C.C. 443, 453-454 (1968), he declined to impose employee protective conditions. Exceptions and a reply thereto by the Railroad were filed with the Commission in early August. The City's, the Unions' and the Users Association's exceptions requested oral argument. On November 3, the Users Association filed a petition for leave to file a petition to reopen the hearing to include further testimony concerning the willingness of users to pay a surcharge of $25 per car. *155 The Railroad replied by letter. On December 13, the Commission, acting by Division 3,	{ "pile_set_name": "FreeLaw" }
11-5060 Liang v. Holder BIA Grant, IJ Hom, IJ A079 399 984 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 12th day of September, two thousand thirteen. PRESENT: JOSÉ A. CABRANES, REENA RAGGI, CHRISTOPHER F. DRONEY, Circuit Judges. _______________________________________ ZHU LA LIANG, Petitioner, v. 11-5060 NAC ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL, Respondent. _______________________________________ FOR PETITIONER: Lewis G. Hu, New York, New York. FOR RESPONDENT: Stuart F. Delery, Assistant Attorney General; Greg D. Mack, Senior Litigation Counsel, Genevieve Holm, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C. UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED. Zhu La Liang, a native and citizen of the People’s Republic of China, seeks review of a November 8, 2011, order of the BIA, affirming the November 17, 2005, decision of Immigration Judge (“IJ”) M. Christopher Grant, which denied her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Zhu La Liang, No. A079 399 984 (B.I.A. Nov. 08, 2011), aff’g No. A079 399 984 (Immig. Ct. Arlington, Nov. 17, 2005). We assume the parties’ familiarity with the underlying facts and procedural history in this case.1 I. Adverse Credibility Determination Under the circumstances of this case, we have reviewed both the IJ’s and the BIA’s decisions. See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The applicable standards of review are well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d 1 Liang did not challenge the IJ’s denial of CAT relief before the BIA and does not meaningfully challenge it in this Court. Thus, the claim is forfeited. 2 Cir. 2009). In pre-REAL ID Act cases, such as this one, inconsistencies and other discrepancies may form the basis of an adverse credibility determination but must “bear a legitimate nexus” to the applicant’s claim of persecution and be “substantial” when measured against the record as a whole. Secaida-Rosales v. INS, 331 F.3d 297, 307-08 (2d Cir. 2003). The agency, however, may rely on the cumulative effect of even minor inconsistencies. See Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir. 2006). We conclude that substantial evidence supports the agency’s adverse credibility determination. In finding Liang not credible, the IJ reasonably relied in part on Liang’s demeanor, noting that she appeared very nervous when asked to explain inconsistencies in her testimony. See Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005). We defer to this finding. Id. Further, the agency reasonably relied on inconsistencies and omissions in Liang’s various statements in concluding she was not credible. See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 166-67 n.3 (2d Cir. 2008) (holding that for purposes of analyzing a credibility determination, “[a]n inconsistency and an omission are functionally equivalent”); see also Secaida- 3 Rosales, 331 F.3d at 308. Contrary to Liang’s argument, the fact of her forced abortion was material, and bore a “legitimate nexus,” to her claim that she had suffered past persecution, and, therefore, the omission of that fact during her credible fear interview formed a legitimate basis for the IJ’s adverse credibility determination. See Secaida-Rosales, 331 F.3d at 307-08; see also Xiu Xia Lin, 534 F.3d at 166-67 n.3. The IJ also reasonably relied on discrepancies between: (1) Liang’s original and amended asylum applications with respect to the year in which the abortion occurred; (2) Liang’s and her husband’s testimony as to whether they had cohabited in China; and (3) Liang’s testimony and abortion certificate with regard to the date of the abortion procedure. Liang failed to provide compelling explanations for these discrepancies. See Majidi, 430 F.3d at 80-81. Furthermore, the IJ reasonably found implausible Liang’s assertion that she chose to delay marrying after discovering that she was pregnant despite her awareness of the significant risks associated with conceiving a child out of wedlock. See Wensheng Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir. 2009) (holding that where the IJ’s findings are “tethered to record evidence, and there is nothing else in the record from which 4 a firm conviction of error could properly be derived,” we will not disturb the inherent implausibility finding). Finally, because Liang does not challenge the IJ’s finding that she failed adequately to corroborate her claim, it stands as valid basis for the agency’s adverse credibility determination. See Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008). Thus, given the absence of corroborating evidence, as well as the aforementioned omissions and discrepancies in Liang’s testimony, we identify no error in the agency’s denial of asylum and withholding of removal on credibility grounds. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). II. Due Process Despite the IJ’s failure to conduct a de novo hearing on remand as ordered by the BIA, Liang has not demonstrated that she was deprived of due process during her proceedings. See Li Hua Lin v. U.S. Dept. of Justice, 453 F.3d 99, 104-05 (2d Cir. 2006). Indeed, nothing in the record suggests that Liang was prohibited from fully developing her testimony, that any of her evidence had been ignored, or that the IJ made a determination on issues about which she had no notice or opportunity to be heard. See id. Furthermore, Liang has not identified anything to suggest that the manner in which the IJ conducted her proceedings undermined their fairness. See id. 5	{ "pile_set_name": "FreeLaw" }
No. 2--95--0698 _________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT _________________________________________________________________ THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Stephenson County. ) Plaintiff-Appellant, ) No. 93--CF--422 ) v. ) ) JOHN A. GOEBEL, ) Honorable ) Richard E. DeMoss, Defendant-Appellee. ) Judge, Presiding. _________________________________________________________________ JUSTICE HUTCHINSON delivered the opinion of the court: The State appeals from the order of the circuit court of Stephenson County granting the motion of the defendant, John A. Goebel, to dismiss an amended information filed against him on January 9, 1995. The State's motion to reconsider was denied, and this timely appeal was filed. We reverse and remand. The State petitioned this court for leave to supply us with additional authority; we granted the State's petition. On appeal to this court, the State raises one issue: whether reversal of the trial court's dismissal order is required, based on the authority of People v. DiLorenzo, 169 Ill. 2d 318 (1996). The State contends that the allegations in the amended information were sufficient to state the offense of aggravated criminal sexual abuse. We agree with the State. Defendant was charged by information with the offense of criminal sexual assault. The information was later amended to charge defendant with committing the offense of aggravated criminal sexual abuse. The amended information alleged: "[Defendant], on or about the 10th day of November 1992 at and within Stephenson County, Illinois did commit the offense of AGGRAVATED CRIMINAL SEXUAL ABUSE in violation of Chapter 38, Illinois Revised Statutes * Section 12--16(b) in that said defendant, [a family member] of [D.R.], knowingly committed an act of sexual conduct with [D.R.], who was under 18 years of age when the act was committed, in that said defendant rubbed his penis against the buttocks of [D.R.]." (Emphasis in original.) Section 12--16(b) of the Criminal Code of 1961 reads in pertinent part: "The accused commits aggravated criminal sexual abuse if he or she commits an act of sexual conduct with a victim who was under 18 years of age when the act was committed and the accused was a family member." 720 ILCS Ann. 5/12--16(b) (Smith-Hurd Supp. 1996). The Criminal Code of 1961 defines "sexual conduct" in pertinent part as "any intentional or knowing touching or fondling by * the accused * of the sex organs * of the victim *** for the purpose of sexual gratification or arousal of the victim or the accused." 720 ILCS Ann. 5/12--12(e) (Smith-Hurd Supp. 1996). Defendant was tried before a jury on January 10-12, 1995. The State's first witness was the victim, D.R. D.R. testified to the events occurring on or about November 8 and 9, 1992, in which she, defendant, and her sister, Tonya, were at the residence of defendant and his wife, Darcy. D.R. testified that the three of them, D.R., Tonya, and defendant, were painting the kitchen, and, by the end of the evening, D.R. had paint in her hair and clothes. She testified that she went upstairs to take a bath, but, because the paint was still in her hair, she called to her sister for assistance. Defendant, instead, went upstairs into the bathroom and suggested she go to the basement and shower the paint out of her hair. D.R. testified that, upon exiting from the shower in the basement, defendant had come down the stairs, led her towards a workout bench, and, with her back facing him, exposed his penis to her. He then "started rubbing his penis up and down on [her] butt." D.R. also testified that defendant told her that she was too beautiful for her own good. D.R. testified that another incident occurred at defendant's residence after a funeral sometime at the end of June 1992. She testified that she and defendant went downstairs to talk, but that defendant started rubbing her back and put his hand down her pants. She testified that defendant took off D.R.'s pants, kissed her breasts, put his finger in her vagina, and then put his mouth on her vagina. Defendant then exposed his penis to her, ejaculated, and instructed D.R. to taste the semen. According to D.R.'s testimony, another incident took place at defendant's residence around October 1992. D.R. testified that she and defendant were in the living room and she had been getting him beers from the refrigerator when he told her to go upstairs "so Darcy won't get suspicious." She testified that they went upstairs and defendant turned on the television. Defendant then proceeded to pull down D.R.'s pants, kiss her breasts and vagina, and put his finger in her vagina. D.R. next testified to an incident occurring in mid to late June 1993 at defendant's newly purchased residence. D.R., among others, was helping defendant renovate the residence prior to defendant and his family moving in. D.R. testified that, on this occasion, she had just finished going to the bathroom, but, before she could pull up her underwear and pants, defendant came in and put his fingers on her vagina and talked about his sex drive. D.R. testified that defendant then stopped, apologized, and said he could not help himself. She testified they then took a tour of the house, and, while they were upstairs, defendant laid D.R. down, took her pants down, and lifted her shirt and bra, exposing her breasts. D.R. testified that defendant then put his fingers in her vagina, kissed her breasts and vagina, and then attempted, but failed, to put his penis in her vagina. Defendant then instructed her to put her mouth on his penis, but then stopped and told her to get a cup. D.R. testified she went downstairs, got the cup, went back upstairs, and defendant again told her to put her mouth on his penis. D.R. said defendant then ejaculated in her mouth. Defendant then performed oral sex on D.R. D.R. testified that, during the ensuing conversation, defendant stated that "he didn't know if most [family members] did this but he thought they should because he was trying to teach [her]" about sex. On cross-examination, counsel for defendant attempted to elicit from D.R. specific dates, times, and places of the incidents, and whether any witnesses were present. Tonya, sister of D.R., testified next, and she recalled the events surrounding the November 8 and 9, 1992, incident. Tonya testified that D.R. had taken a bath upstairs after painting that evening and had called for Tonya, but that defendant went upstairs instead. She then testified that D.R. went to the basement to take a shower, and minutes later, while D.R. was still in the basement, defendant went downstairs. On cross-examination, Tonya testified as to her employment history, her knowledge of the June 1992 funeral, her recollection that defendant was in the basement with D.R. in November 1992, and the terms of her visitation with defendant. The State's last witness was Officer Richard Roodhouse. He testified about the investigation of the allegations against defendant. Roodhouse testified that defendant acknowledged his hand "fell against her breast" on	{ "pile_set_name": "FreeLaw" }
223 F.Supp.2d 286 (2002) Jeffrey E. SIMPSON, Plaintiff v. Cheryl GALLANT, et al., Defendants No. CIV. 02-15-B-K. United States District Court, D. Maine. September 25, 2002. Jeffrey E. Simpson, South Windham, ME, Pro se. Michael J. Schmidt, Esq., Wheeler & Arey, P.A., Waterville, ME, for Defendants. MEMORANDUM OF DECISION KRAVCHUK, United States Magistrate Judge. Jeffrey Simpson is seeking remedies for alleged violations of his constitutional right to have access to the telephone and mail services when he was a pretrial detainee at the Penobscot County Jail. (Docket Nos. 1, 7, 8, & 15.) A motion to dismiss filed by the defendants, Cheryl Gallant, Richard Clukey, and Edward Reynolds[1] was denied. 287 (Docket Nos. 26 & 31.) The parties have now consented to proceed before the magistrate judge.[2] Simpson has filed a motion for summary judgment (Docket No. 38) which he has since clarified to be a motion for partial summary judgment vis-à-vis a claim that he was unable to orchestrate bail in the period between October 20, 2001, through January 21, 2002, because he was denied access to a phone despite his express request to use the phone to arrange bail (Docket No. 52). The defendants have responded to this motion and have filed a cross motion for summary judgment as to all of Simpson's claims. (Docket No. 44.) I DENY Simpson's motion for summary judgment and GRANT summary judgment to the defendants on Simpson's claim that his constitutional rights were violated when his request to make a collect call to arrange bail was denied. As to the remainder of Simpson's claims relating to phone and mail access I conclude that Simpson has not exhausted his administrative remedies as required by 42 U.S.C. § 1997e(a) and, because the defendants press for disposition on this ground, these claims are DISMISSED WITHOUT PREJUDICE. Background Broadly put, Simpson claims that while he was a pretrial detainee at the Penobscot County Jail he was placed in disciplinary segregation for violations of jail rules. During the period he spent in segregation he was completely denied access to the phones and he was allowed to mail only three personal letters a week, with postage paid by the jail pursuant to a jail policy. He was not allowed to send additional mail using his own postage. On January 21, 2002, Simpson was released from custody on bail that was posted by an associate. On February 21, 2002, Simpson was found not guilty on one charge after a jury trial. On February 14, 2002, all additional counts against Simpson triggering his detention from October 10, 2001, through January 21, 2002, had been dismissed. Simpson's theory of the case is that Penobscot County Jail policies pertaining to outgoing mail and its policy prohibiting the use of a phone for any reason by inmates not in good standing violated his right to prepare his defense and make bail. At the motion to amend/motion to dismiss juncture it was clarified that Simpson pursues these three defendants in their official capacities challenging the constitutionality of the Jail's policy or custom. See Monell v. Dep't of Social Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (observing that a § 1983 suit may be brought "when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible for under § 1983").[3] Discussion A. Summary Judgment Standard Typically the summary judgment standard is phrased in terms of moving and nonmoving parties but in this instance the plaintiff and the defendants are cross-movants. 288 My determination below turns on the question of exhaustion of administrative remedies (with respect to which the defendants carry the burden) and whether or not there is a genuine dispute of material fact as to Simpson's single exhausted claim involving the denial of his December 1, 2001, request to make a phone call to arrange bail. As I conclude that the summary judgment record on both motions supports judgment for the defendants and does not support judgment for Simpson on his motion, I have analyzed the record treating the defendants as the movants and Simpson as the nonmovant, an approach that favors Simpson. Summary judgment is appropriate if there are no genuine and disputed issues of material fact and if, viewing the evidence most favorably to Simpson, the defendants are entitled to prevail as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Nicolo v. Philip Morris, Inc., 201 F.3d 29, 33 (1st Cir.2000). The defendants bear the burden of showing that there is no material factual dispute. A disputed fact is material if it "has the potential to change the outcome of the suit under the governing law if the dispute over it is resolved favorably to the nonmovant." Navarro v. Pfizer Corp., 261 F.3d 90, 93-94 (1st Cir.2001) (quoting McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995)). I must take Simpson's evidence as true, but only evidence that is supported by the affidavits or other evidentiary material. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. Simpson's pro se status does not excuse him from meeting the summary judgment requirements. Parkinson v. Goord, 116 F.Supp.2d 390, 393 (W.D.N.Y.2000) ("[P]roceeding pro se does not otherwise relieve a litigant of the usual requirements of summary judgment, and a pro se party's bald assertions, unsupported by evidence, are insufficient to overcome a motion for summary judgment."). With respect to material facts (as opposed to legal argument[4]) I have drawn all reasonable inferences in favor of Simpson. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In undertaking the exhaustion inquiry, the defendants bear the burden of proof on this affirmative defense, see Casanova v. Dubois, 304 F.3d 75, 77-78 (1st Cir.2002), and may discharge their burden by demonstrating that their is no record evidence to support Simpson's case on this question, Celotex, 477 U.S. at 325, 106 S.Ct. 2548. Vis-à-vis Simpson's constitutional claims Simpson would bear the burden at trial, and, as to any essential factual element of his claim on which he would bear the burden of proof at trial, Simpson's failure to come forward with sufficient evidence to generate a trialworthy issue would warrant summary judgment for the defendants. In re Spigel, 260 F.3d 27, 31 (1st Cir.2001). B. Exhaustion pursuant to § 1997e(a) As they did in their motion to dismiss the defendants press for dismissal of this entire action on the grounds that Simpson failed to exhaust his administrative remedies as required by 42 U.S.C. § 1997e(a). In § 1997e(a) Congress provided: No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal 289 law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. 42 U.S.C. § 1997e(a). In my recommended decision on the motion to dismiss I concluded that Simpson had adequately plead exhaustion for purposes of surviving the motion to dismiss.[5] As anticipated, the record on these cross-motions for summary judgment provides a better basis for making the exhaustion determination. The facts that are material to the exhaustion concern are as follows. The inmate grievance procedure for the Penobscot County Jail is not disputed by the parties. It is contained in the inmate handbook and provides: An inmate may file a grievance of an alleged violation of civil, Constitutional, or statutory rights ... or to appeal a previous grievance decision. Jail personnel will provide inmates who wish to report a grievance (consistent with the definition) with a copy of the Grievance form used by the Penobscot County Jail. Completed grievances may be submitted directly to the Corrections Officer, Asst. Shift Supervisor or Shift Supervisor who will sign the grievance indicating receipt of the grievance, to include date and time. Once signed by the Receiving Officer, the inmate will be given a copy of 290 the submitted grievance. When a grievance is resolved, a copy of the written response/finding will be provided to the inmate within twenty-four (24) hours. An inmate may appeal a grievance decision to the next level of command for review, stating the reason for the appeal. Grievances that appear frivolous in nature or include obscenities or are unrelated to jail operations and activities will not be considered. Once the inmate has exhausted the internal grievance system, he/she may submit their grievance to the Maine Department of Correction or other review agency for external review. Upon request, jail personnel will provide inmates who wish to report a grievance with adequate writing supplies. Inmate grievances addressed to the Maine Department	{ "pile_set_name": "FreeLaw" }
983 F.Supp. 977 (1997) SITHON MARITIME COMPANY, Plaintiff, v. HOLIDAY MANSION, a Division of Mohawk, Inc., and Mercury Marine, a Division of Brunswick Corporation, Defendants. No. CIV. A. 96-2262-EEO. United States District Court, D. Kansas. October 22, 1997. 978 979 980 981 Lee M. Smithyman, Smithyman & Zakoura, Chtd., Overland Park, KS, Michael G. Chalos, Richard M. Ziccardi, George J. Tsimis, New York City, for Plaintiff Sithon Maritime Co. Norman R. Kelly, Norton, Wasserman, Jones & Kelly, Salina, KS, Anthony M. DeMarea, Shughart, Thompson & Kilroy, Overland Park, KS, for Defendant Holiday Mansion. Heather Suzanne Woodson, Stinson, Mag & Fizzell, P.C., Overland Park, KS, John C. Aisenbrey, Stinson, Mag & Fizzell, P.C., Kansas City, MO, Alex B. Marconi, Patrick X. Fowler, Snell & Wilmer L.L.P., Phoenix, AZ, for Defendant Mercury Marine. MEMORANDUM AND ORDER EARL E. O'CONNOR, District Judge. This matter is before the court on the motion for summary judgment of defendant Mercury Marine ("Mercury") on plaintiff's complaint (Doc. # 73), and defendant Mercury's motion for summary judgment on defendant Holiday Mansion's cross-claim (Doc. # 124). After careful consideration of the parties' briefs and evidentiary materials, the court is prepared to rule. For the reasons stated below, Mercury's motion on plaintiff's complaint is granted as to counts I, II, V, VIII, and IX, granted in part and denied in part as to counts IV and VII, and denied as to counts III and VI. Mercury's motion is granted as to all counts on defendant Holiday Mansion's cross-claim. Summary Judgment Standards Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir.1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. The moving party bears the initial burden of showing that there is an absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991). Essentially, the inquiry as to whether an issue is genuine is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. at 2511. An issue of fact is genuine if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party. Id. at 248, 106 S.Ct. at 2510. This inquiry necessarily implicates the substantive evidentiary standard of proof that would apply at trial. Id. at 252, 106 S.Ct. at 2511-12. Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). The nonmoving party may not rest on his pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241. "[W]e must view the record in the light most favorable to the parties opposing the motion for summary judgment." Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 793 (10th Cir. 1988). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Anderson, 477 U.S. at 256, 106 S.Ct. at 2514. Where the nonmoving party fails to properly respond to the motion for summary judgment, the facts *982 as set forth by the moving party are deemed admitted for purposes of the summary judgment motion. D.Kan.Rule 56.1. In this diversity case, we ascertain and apply Kansas law with the objective that the result obtained in federal court should be the same result as in a Kansas court. See Adams-Arapahoe School Dist. No.28-J v. GAF Corp., 959 F.2d 868, 870 (10th Cir.1992). With respect to plaintiff's fraud claims under Kansas law, federal law standards for granting summary judgment apply. See Fed.R.Civ.P. 56. In Anderson v. Liberty Lobby, 477 U.S. at 252, 255, 106 S.Ct. at 2512, 2513-14, the United States Supreme Court held: we are convinced that the inquiry involved in a ruling on a motion for summary judgment or for a directed verdict necessarily implicates the substantive evidentiary standard of proof that would apply at the trial on the merits.... Consequently, where the ... "clear and convincing" evidence requirement applies, the trial judge's summary judgment inquiry as to whether a genuine issue exists will be whether the evidence presented is such that the jury applying that evidentiary standard could reasonably find for either the plaintiff or the defendant. Allegations of fraud must be proven by clear and convincing evidence. See Rajala v. Allied Corp., 919 F.2d 610, 626 (10th Cir.1990), cert. denied, 500 U.S. 905, 111 S.Ct. 1685, 114 L.Ed.2d 80 (1991); Sipes v. Crum, 204 Kan. 591, 464 P.2d 1, 6 (1970). Thus, plaintiff as the nonmoving party carrying the burden of proof at trial must present sufficient evidence of a clear and convincing nature to withstand summary judgment on its fraud claims. See Ramirez v. IBP, Inc., 913 F.Supp. 1421, 1430 (D.Kan.1995); Sprague v. Peoples State Bank, Colby, Kan., 844 F.Supp. 662, 667 (D.Kan.1994); All West Pet Supply Co. v. Hill's Pet Prods. Div., Colgate-Palmolive Co., 840 F.Supp. 1426, 1431 (D.Kan.1993). Analysis I. Mercury's Motion For Summary Judgment On Plaintiff's Complaint. A. Factual Background. For purposes of defendant's motion, the following is a brief summary of the material facts that are uncontroverted, deemed admitted, or where controverted viewed in the light most favorable to the non-movant, pursuant to Federal Rule of Civil Procedure 56 and District of Kansas Rule 56.1. Plaintiff Sithon Maritime Company ("Sithon") was organized in December 1994 for the purpose of obtaining exclusive government issued permits to operate a high speed ferry boat service to shuttle passengers between two of three peninsulas in Northern Greece. In late 1994, Mr. Vagianos, who later became president of Sithon, began negotiating with defendant Holiday Mansion for the possible purchase of four 50-passenger ferry boats. Mr. Vagianos advised Holiday Mansion that the boats needed to achieve a cruising speed of at least 24 knots for the anticipated ferry service and that the ferry boats would run 24 hours a day. Holiday Mansion advised Mr. Vagianos that the ferries could be powered by either two Mercury 7.3L diesel engines and Bravo III stern drives or by two Volvo diesel engines and stern drives. Mr. Byquist of Holiday Mansion advised Mr. Vagianos that the Mercury engines had more horsepower and would allow the boats to go faster than	{ "pile_set_name": "FreeLaw" }
718 S.E.2d 145 (2011) STATE of North Carolina v. Terry Adonis BALDWIN. No. 325P11. Supreme Court of North Carolina. October 6, 2011. Anne Bleyman, for Baldwin, Terry Adonis. Amanda Little, Assistant Attorney General, for State of N.C. Peter S. Gilchrist, III, District Attorney, for State of N.C. ORDER Upon consideration of the notice of appeal from the North Carolina Court of Appeals, filed by the Defendant on the 1st of August 2011 in this matter pursuant to G.S. 7A-30, and the motion to dismiss the appeal for lack of substantial constitutional question filed by the State of NC, the following order was entered and is hereby certified to the North Carolina Court of Appeals: the motion to dismiss the appeal is *146 "Allowed by order of the Court in conference, this the 6th of October 2011." Upon consideration of the petition filed on the 1st of August 2011 by Defendant in this matter for discretionary review of the decision of the North Carolina Court of Appeals pursuant to G.S. 7A-31, the following order was entered and is hereby certified to the North Carolina Court of Appeals: "Denied by order of the Court in conference, this the 6th of October 2011."	{ "pile_set_name": "FreeLaw" }
IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-17,575-06 RONALD MIXON, Relator v. TRAVIS DISTRICT CLERK, Respondent ON APPLICATION FOR A WRIT OF MANDAMUS CAUSE NO. 100459 IN THE 147TH JUDICIAL DISTRICT COURT FROM TRAVIS COUNTY Per curiam. O R D E R Relator has filed a motion for leave to file a writ of mandamus pursuant to the original jurisdiction of this Court. In it, he contends that he filed an application for a writ of habeas corpus in the 147th Judicial District Court of Travis County, that more than 35 days have elapsed, and that the application has not yet been forwarded to this Court. In these circumstances, additional facts are needed. The respondent, the District Clerk of Travis County, is ordered to file a response, which may be made by: submitting the record on such habeas corpus application; submitting a copy of a timely filed order which designates issues to be investigated, see McCree v. Hampton, 824 S.W.2d 578 (Tex. Crim. App. 1992); or stating that Relator has not filed an application for habeas corpus in Travis County. Should the response include an order designating issues, proof of the date the district attorney's office was served with the habeas application shall also be submitted with the response. This application for leave to file a writ of mandamus shall be held in abeyance until the respondent has submitted the appropriate response. Such response shall be submitted within 30 days of the date of this order. Filed: October 12, 2011 Do not publish	{ "pile_set_name": "FreeLaw" }
119 F.Supp.2d 485 (2000) Jean Patrick MICHEL, Petitioner v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent No. 4:CV-99-1879. United States District Court, M.D. Pennsylvania. November 3, 2000. Sandra L. Greene, York, PA, for petitioner. Kate L. Mershimer, Assistant United States Attorney, Harrisburg, PA, for respondent. MEMORANDUM McCLURE, District Judge. BACKGROUND: On October 22, 1999, petitioner Jean Patrick Michel, acting pro se, commenced this action by filing a document denominated "Motion for bond/relief under 28 U.S.C. [§] 2241." Michel is a native and citizen of Haiti who is currently a detainee of the Immigration and Naturalization Service (INS). He is subject to a final order 486 of deportation issued December 3, 1997, but INS has not been able to effectuate the deportation, apparently due to slow action on the part of Haiti. Succinctly stated, Michel seeks release on bond pending his removal. Before the court is the report and recommendation of U.S. Magistrate Judge Thomas M. Blewitt, which recommends that the petition be denied. DISCUSSION: I. STANDARD A district court is required to review de novo those portions of a magistrate judge's report to which objections are made. Commonwealth of Penna. v. United States, 581 F.Supp. 1238, 1239 (M.D.Pa.1984); 28 U.S.C. § 636(b)(1). When no objections are filed to the report of a magistrate judge, a court has discretion to review that report as it deems appropriate. A magistrate judge's finding or ruling on a motion or issue properly becomes the holding of the court unless objections are filed. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). However, the district court may not grant a motion for summary judgment, Fed.R.Civ.P. 56, or a motion to dismiss under Fed.R.Civ.P. 12(b)(6) solely because the motion is unopposed; such motions are subject to review for merit. Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991); Anchorage Associates v. Virgin Islands Board of Tax Review, 922 F.2d 168, 174 (3d Cir.1990). Michel has filed objections to the report and recommendation which we review de novo. II. STATEMENT OF FACTS AND PROCEDURAL HISTORY Michel is a native and citizen of Haiti who entered the United States on September 11, 1971, as a lawful permanent resident. In October, 1997, INS issued an order to show cause alleging that Michel had been convicted twice in 1994 of criminal possession of stolen property, and was therefore removable under 8 U.S.C. § 1227(a)(2)(A)(ii). An immigration judge found Michel removable, a decision upheld by the Board of Immigration Appeals (BIA) on October 27, 1998. However, the Court of Appeals for the Second Circuit issued a stay of removal during the pendency of an appeal to that court. The Second Circuit has since affirmed the final order of removal and lifted the stay. Michel v. I.N.S., 206 F.3d 253 (2d Cir.2000). See also 8 U.S.C. § 1229b(c)(6). The removal is based on Michel's two convictions for crimes of moral turpitude. While the appeal was pending, Michel requested release on a $15,000.00 bond. The District Director in New York denied the request and notified Michel that he had the right to appeal to the BIA. No appeal from the denial was filed. Originally, Michel was released on bail by an immigration officer. However, the immigration judge revoked bail, stating that Michel was ineligible. Michel has remained in custody while INS attempts to effect his deportation to Haiti. Although Haiti accepts deportees from the United States, the process is slow. Given the above recitation, the issues before this court are limited. Michel is not one of those aliens subject to removal whose native country will not accept him, so that he is not likely to be subject to permanent detention. Also, there is no question regarding deportability, as any such question is answered by the Second Circuit's affirmance of the order of removal. Further, Michel may not petition for a waiver of deportation because he previously has received such a waiver. 206 F.3d at 257. The sole question is whether a resident alien who is subject to removal for committing crimes of moral turpitude has the right to be released on bond because his native country moves slowly to accept him. As recited by the magistrate judge, Michel has stated the issue as whether the failure to release him from custody on bond after the expiration of the 90-day 487 removal period violated his right to due process. Report and Recommendation at 3 (quoting Petitioner's Amended Reply to Respondent's Brief at 1). III. JURISDICTION As a preliminary matter, we note that INS argued before the magistrate judge that the court lacked jurisdiction over the denial of bond pursuant to 8 U.S.C. § 1226(e). The undersigned judge so held in Jacques v. Reno, 73 F.Supp.2d 477 (M.D.Pa.1999). In Chi Thon Ngo v. I.N.S., 192 F.3d 390 (3d Cir.1999), our Court of Appeals held, though without analysis, that the district court had jurisdiction over a petition for a writ of habeas corpus under § 2241. Id. at 393 (citing Sandoval v. Reno, 166 F.3d 225, 237-238 (3d Cir.1999); DeSousa v. Reno, 190 F.3d 175, 182 (3d Cir.1999)). The petitioner in Chi Thon Ngo was an excludable alien who was subjected to exclusion proceedings for lack of a valid immigrant visa and for conviction of crimes of moral turpitude and aggravated felonies. Id. at 392. He claimed to be eligible for release because his country of origin would not accept him. Id. at 393. The statutory provision on which we relied in Jacques, § 1226(e), also would apply to proceedings involving a petitioner like that in Chi Thon Ngo. It follows, then, that the Third Circuit necessarily has abrogated Jacques to the extent we found that our jurisdiction to entertain a petition for a writ of habeas corpus had been repealed by § 1226(e).[1] We turn, then, to the merits of the petition. IV. RELEASE ON BOND As noted, Michel claims to be entitled to release on bond or under an order of supervision because the 90-day period for removal has expired. The claim is asserted as arising under the Due Process Clause of the Fifth Amendment. Once an alien is ordered "removed," INS[2] is afforded a 90-day period in which to effect removal. 8 U.S.C. § 1231(a)(1)(A). The alien is subject to detention during the removal period. Sec. 1231(a)(2). After expiration of the 90-day period, the alien may be released under specified conditions. § 1231(a)(3). While aliens such as Michel who are deportable under § 1227(a)(2)(A)(ii) must be detained pending a final order of removal, 8 U.S.C. § 1226(c)(1)(B), inadmissible aliens, aliens removable under 8 U.S.C. § 1227(a)(1)(C), (a)(2), or (a)(4), and aliens determined to be a risk to the community or unlikely to comply with the removal order may be detained after expiration of the 90-day period. § 1231(a)(6). See also 8 C.F.R. §§ 241.1 et seq. (regulations governing post-hearing detention and removal, including continued detention and conditions of release). Michel argues, however, that this statutory language violates his right to substantive due process because it requires that he be kept in prolonged detention, i.e. deprives him of his fundamental right to liberty, without an adequate governmental interest justifying the intrusion. The basic *488 disagreement between the parties is the extent to which Michel's asserted liberty interest is cognizable under the substantive component of the Due Process Clause. This disagreement also is reflected in opinions by judges of this court on which the parties rely. In Sombat Map Kay v. Reno, 94 F.Supp.2d 546 (M.D.Pa.2000), Judge Rambo found that a deportable alien whose country of origin would not accept him was entitled to release on conditions. Judge Caldwell disagreed, finding that periodic review of an alien's continued detention satisfied the Due Process Clause. Cuesta Martinez v. I.N.S., 97 F.Supp.2d 647 (M.D.Pa.2000). We begin with some of the case law leading to those decisions, as well as opinions issued thereafter which put the decisions into context. (A) Other Authority In Chi Thon Ngo, the petitioner was a native of Viet Nam who was paroled into the United States in 1982. He was convicted in state court for firearm possession and for attempted robbery in unrelated events. He was ordered to be deported in 1995 because he lacked a valid visa, he	{ "pile_set_name": "FreeLaw" }
41 So.3d 224 (2010) ODUM v. STATE. No. 2D10-1573. District Court of Appeal of Florida, Second District. July 28, 2010. Decision without published opinion Affirmed.	{ "pile_set_name": "FreeLaw" }
875 F.2d 862 Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Gloria COOLEY, Plaintiff-Appellant,v.SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee. No. 88-1465. United States Court of Appeals, Sixth Circuit. April 10, 1989. Before BOYCE F. MARTIN, Jr. and MILBURN, Circuit Judges, and JOHN D. HOLSCHUH, District Judge*. PER CURIAM. 1 The Secretary of Health and Human Services ("Secretary") found that claimant Gloria Cooley ("Cooley") became disabled on May 23, 1984. Cooley appeals the Secretary's determination of her onset date, arguing she is entitled to an earlier date. For the reasons that follow, we affirm the finding of disability, but reverse the district court's determination of Cooley's onset date. I. 2 Cooley applied for disability insurance benefits on March 25, 1982. Her application was denied initially and upon reconsideration. She requested a hearing before an Administrative Law Judge ("ALJ"), which was held on September 10, 1984. On November 15, 1984, the ALJ issued an opinion finding Cooley not disabled. This became the final decision of the Secretary. Cooley then filed for judicial review in the district court. 3 On November 6, 1985, the district court remanded the case to the Secretary for a new evaluation under the revised mental impairment standards of the Social Security Disability Benefits Reform Act of 1984 (Pub.L. No. 98-460). The ALJ conducted two more hearings, on May 19 and July 22, 1986. On January 8, 1987, the ALJ found Cooley disabled by an anxiety-related disorder pursuant to 20 C.F.R. Pt. 404, Subpt. P, App. 1, Sec. 12.06, with an onset date of May 23, 1984. He characterized Cooley as suffering from post-traumatic stress disorder, aggravated by personality and anxiety problems. He found that she was never capable of returning to her past relevant work after she was injured in April 1981, but she could do unskilled work between April 1981 and May 23, 1984. The Appeals Council adopted the ALJ's recommendations. 4 Cooley continued to object to the 1984 onset date and reinstated her action for judicial review. Both Cooley and the Secretary moved for summary judgment. The matter was referred to the magistrate, who recommended granting Cooley's motion for summary judgment. The magistrate believed the medical evidence established that Cooley's ability to concentrate became substantially impaired in April 1981. Therefore, the hypothetical question relied upon by the ALJ which assumed she could concentrate did not accurately portray her impairment, and the vocational expert's response to the deficient question was not evidence that Cooley could perform unskilled work between April 1981 and May 1984. 5 The district court rejected the magistrate's recommendation and affirmed the Secretary's decision that Cooley became disabled on May 23, 1984. The district court did not address the magistrate's concerns with the ALJ's hypothetical question. Cooley then filed a timely appeal with this court. 6 Cooley was born April 5, 1946, and was thirty-five years old when she was injured on April 6, 1981, while working as a health instructor at M.L. King High School in Detroit. According to the injury report she filed with the Board of Education, Cooley was monitoring a hallway when she heard a commotion in a girls' restroom. She went into the restroom, found several boys and girls, and turned to find another teacher to help her with the situation. The students rushed to leave, and Cooley's head and body were squeezed and smashed several times as she became trapped between a brick wall and a door that was repeatedly thrown open by fleeing students. Cooley reported suffering bruises on her face and body. Later, in August 1981, when she underwent the first of numerous physical and neurological examinations, she reported that she lost consciousness during the restroom incident. Cooley's mental and emotional condition deteriorated significantly between April 1981 and May 1984. 7 Cooley testified that since the restroom incident she has been unable to think clearly, and has become forgetful to the point where she lives according to routines and lists. She experiences speech, reading and vision difficulties; becomes fatigued and overwhelmed frequently and easily; and has remained severely depressed, withdrawn and is frightened by other people and her inability to think and speak clearly and coherently. Cooley's complaints and symptoms are documented in an extensive medical history. 8 Between June 1981 and May 1983, Cooley was examined by several neurologists, ophthalmologists, psychiatrists and psychologists, dentists, an ear, nose and throat physician, and a speech therapist. She was hospitalized from May 23, 1984, through June 20, 1984, because of the increasing severity of her impairments and her withdrawal from normal life activities. At admission, she was anxious, easily overwhelmed, depressed and fearful.1 II. A. 9 Our scope of review is limited to the inquiry of whether the Secretary's findings are supported by "substantial evidence." Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). In reviewing for substantial evidence, we must examine the record taken as a whole. Duncan v. Secretary of Health & Human Servs., 801 F.2d 847, 852 (6th Cir.1986). 10 Because the ALJ found that Cooley was never capable of returning to her past relevant work, the burden shifted to the Secretary to show by substantial evidence that she could perform work that existed in the national economy. See Buress v. Secretary of Health & Human Servs., 835 F.2d 139, 142 (6th Cir.1987) (per curiam); Varley v. Secretary of Health & Human Servs., 820 F.2d 777, 779 (6th Cir.1987). The theoretical ability to engage in some type of work is not enough; the Secretary must make "a finding supported by substantial evidence that [the claimant] has the vocational qualifications to perform specific jobs." O'Banner v. Secretary of Health, Educ. & Welfare, 587 F.2d 321, 323 (6th Cir.1978). "Substantial evidence may be produced through reliance on the testimony of a vocational expert in response to a 'hypothetical question,' but only 'if the question accurately portrays [the claimant's] individual physical and mental impairments.' " Varley, 820 F.2d at 779 (quoting Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir.1984)). B. 11 Cooley asserts the Secretary did not show by substantial evidence that she could perform specific jobs. The pertinent part of the ALJ's opinion provides: 12 While the evidence of record does suggest the existence of a mental impairment going back to 1981, the undersigned finds that, given the minimal clinical findings in the record prior to May of 1984, the claimant's mental impairment, while severe, did not preclude her from performing a full range of unskilled work. While the testimony from the vocational expert and the medical findings in the record indicate that the claimant could not have performed her teaching job at that time and that her mental impairment probably precluded her from using or transferring her vocational skills, there is nothing in the record indicating that the claimant's mental impairment would have impacted upon her ability to perform unskilled work prior to May of 1984. The undersigned further finds that prior to May 1984, the claimant could have performed those unskilled ... jobs identified by the vocational expert, and that these jobs existed in significant numbers in the local economy. 13 J.A. at 232-33 (emphasis supplied). 14 Striking in the above passage is the ALJ's declaration that "there is nothing in this record indicating" that Cooley could not perform unskilled work prior to May 1984. This statement reflects a mistaken view of the case. As Buress and Varley make clear, the focus is not on what is absent from the record, but what evidence is in the record to prove that Cooley had the vocational qualifications to perform specific jobs. 15 The Secretary's proof of Cooley's residual functional capacity consisted of the testimony of vocational expert Michael Rosko, to whom the ALJ posed two hypothetical questions. The first question satisfies the Varley standard of accuracy, as the ALJ asked Rosko to consider a hypothetical forty-year-old woman who suffered through Cooley's undisputed physical and mental impairments--severe daily headaches, depression, withdrawal, impatience, irritability, frequent crying, hurling things about the house, insomnia, low self-esteem, nightmares, fear of teenagers, fear of telephone calls, frequent anxiety, seizures, poor memory, indecision, unpredictable moods, easily frustrated and overwhelmed, and severely impaired concentration. Assuming these impairments, the vocational expert testified it would be very difficult for the hypothetical woman to return to her past relevant work and that the impairment of her concentration "would probably preclude all jobs--skilled and unskilled for	{ "pile_set_name": "FreeLaw" }
476 F.Supp. 974 (1979) Shirley A. ONLEY v. Detective Herman W. SIMMS and City of Lancaster and Penn Supreme and Penn Dairies, Inc. and Caroline Pratt and Phillip A. Kliewer and Marge Breniser c/o National Central Bank and National Central Bank. Civ. A. No. 79-1304. United States District Court, E. D. Pennsylvania. September 20, 1979. Gerald A. Stein, Joel D. Caney, Philadelphia, Pa., for plaintiff. 975 C. W. Mattson, R. P. Nuffort, Lancaster, Pa., J. K. Thomas, II, Harrisburg, Pa., for defendants. MEMORANDUM TROUTMAN, District Judge. Disappearance of cash which plaintiff, an employee of defendants Penn Dairies, Inc. and Penn Supreme (Penn), claimed to have deposited on behalf of her employer with defendant National Central Bank (Bank), July 10, 1978, led to an investigation which culminated in plaintiff's arrest two months later. Plaintiff was taken into custody, processed, fingerprinted, photographed and held for preliminary arraignment. However, the District Attorney of Lancaster County dropped the charges shortly before the Bank discovered the missing deposits stuck in the night depository in January 1979. Plaintiff then commenced this action alleging violations of the Fourth, Fifth, Ninth and Fourteenth Amendments and the Civil Rights Act of 1871, 42 U.S.C. § 1983.[1] Defendants, who now move to dismiss the complaint, include Penn, the Bank, two Penn employees, one Bank employee, and Detective Herman W. Simms, an employee of defendant City of Lancaster. Specifically, plaintiff charges that the Penn and Bank employees acted under color of state law and conspired to deprive her of constitutional rights by maliciously making misleading and false statements to Detective Simms "when they knew or in the exercise of reasonable investigation and care would have known (that the accusations) would result in the arrest and prosecution of the plaintiff" for violation of 18 Pa.Cons.Stat. Ann. § 3927(a)(Purdon).[2] On September 15, 1978, relying in part on statements made by the Penn and Bank employees, Simms executed a complaint before a Lancaster County Justice of the Peace, who determined that probable cause existed to believe that plaintiff committed the theft. With the warrant that issued upon the complaint Simms arrested plaintiff, who now alleges that the criminal proceedings were "instituted and continued against the plaintiff ... wholly without ... probable cause" and thus violative of the Fourth Amendment. The instant situation is therefore unlike Baker v. McCollan, ___ U.S. ___, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979), in which the respondent did not attack the validity of the warrant under which he was arrested. In fact in Baker the respondent's 1983 claim was based on a sheriff's actions after, not before, arrest.[3]Id. at ___, 99 S.Ct. 2689. In the case at bar plaintiff does attack the validity of the arrest warrant. Arrest without probable cause is a constitutional violation. Patzig v. O'Neil, 577 F.2d 841, 848 (3d Cir. 1978). The issue therefore arises whether an allegation of simple negligence states a claim for relief under § 1983; more specifically, whether Detective Simms is liable under § 1983 if he negligently caused plaintiff to be arrested upon less than probable cause. 976 Although the Supreme Court has expressly reserved deciding the matter, Baker v. McCollan, supra, Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978), it has opined that the appropriate answer is "more elusive than it appears at first blush" and "may well not be susceptible of a uniform answer across the entire spectrum of conceivable constitutional violations which might be the subject of a § 1983 action". Baker v. McCollan, ___ U.S. at ___, 99 S.Ct. at 2692. See also Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), in which the court held that a specific intent to violate a constitutional right is not required in a § 1983 action but did not reach the question of whether a general intent without regard to whether the acts specifically were intended to violate a person's civil rights was necessary for a § 1983 action to lie. Neither the Fourth nor Fourteenth Amendments guarantees that only the guilty will be arrested. And the Due Process Clause specifically does not mandate that "every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person". Baker v. McCollan, ___ U.S. at ___, 99 S.Ct. at 2695, quoting Patterson v. New York, 432 U.S. 197, 208, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). A fortiori, due process does not require exhaustion of every conceivable precaution to avert arresting an innocent person. Many courts agree that simple negligence may not form the predicate of a § 1983 claim. Page v. Sharpe, 487 F.2d 567, 569 (1st Cir. 1973) ("mere negligence, in the absence of conduct which shocks the conscious, in giving or failing to supply medical treatment to prisoners will not suffice"); Williams v. Vincent, 508 F.2d 541, 546 (2d Cir. 1974) ("an isolated omission to act by a state prison guard does not support a claim under section 1983 absent circumstances indicating an evil intent, or recklessness, or at least deliberate indifference to the consequence of his conduct"); Corby v. Conboy, 457 F.2d 251, 254 (2d Cir. 1972) (mere negligence by a state prison doctor does not support a claim of denial of federal constitutional rights); Patzig v. O'Neil, 577 F.2d at 848 ("police personnel may have acted negligently, perhaps even callously; but such actions do not amount to the `intentional conduct characterizing a constitutional infringement'"); Hampton v. Holmesburg Prison Officials, 546 F.2d 1077, 1081 (3d Cir. 1976) ("to establish a constitutional violation, the indifference must be deliberate and the actions intentional"); Howell v. Cataldi, 464 F.2d 272, 279 (3d Cir. 1972) (plaintiff must adduce proof of either "wrongful intention or culpable negligence"); Bryan v. Jones, 530 F.2d 1210, 1215 (5th Cir. 1976) (en banc) (a jailer whose errors in a record-keeping system fall outside of his realm of responsibility cannot be found liable if he has acted reasonably and in good faith); Puckett v. Cox, 456 F.2d 233, 235 (6th Cir. 1972) (more than an isolated incident of negligence must be alleged); Jamison v. McCurrie, 565 F.2d 483, 486 (7th Cir. 1977) ("there is no constitutional cause of action for mere negligence on the part of police officers . . .. Plaintiff must show that their misbehavior was either intentional or in reckless disregard of his constitutional rights"); McDonald v. Illinois, 557 F.2d 596, 601 (7th Cir. 1977) ("for plaintiff to state a cognizable claim, he must allege more than mere negligence on the part of . . . defendants"); Brown v. United States, 486 F.2d 284, 287 (8th Cir. 1973) ("we are extremely hesitant to hold that mere simple negligence can be the basis of personal liability under § 1983"). Cf. Procunier v. Navarette, 434 U.S. at 568, 98 S.Ct. at 863 ("one who does not intend to cause and does not exhibit deliberate indifference to the risk of causing the harm that gives rise to a constitutional claim is not liable for damages under § 1983") (Burger, C. J., dissenting). See also Stringer v. Chicago, 464 F.Supp. 887, 890 (N.D. Ill. 1979), Croswell v. O'Hara, 443 F.Supp. 895, 898 (E.D. Pa. 1978), Schweiker v. Gordon, 442 F.Supp. 1134, 1138 (E.D. Pa. 1977), and Jones v. McElroy, 429 F.Supp. 848, 863 (E.D. Pa. 1977).[4] *977 To distill from these disquisitions the appropriate standard by which to evaluate plaintiff's claims is no simple matter. Nonetheless, the appropriate standard seems to include both a subjective and objective element under the circumstances. If Detective Simms, acting in good faith, sincerely believed that probable cause existed that plaintiff committed the theft, and if he did not know, nor reasonably should have known, that his official action would violate plaintiff's rights or if he acted without malicious intent to deprive plaintiff of her constitutional rights, then defendant is not liable. See also Wood v. Strickland, 420 U.S. 308, 321-22, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975), Reese v. Nelson, 598 F.2d 822, 827 (3d Cir. 1979), and Princeton Community Phone Book, Inc. v. Bate, 582 F.2d 706, 711 (3d Cir. 1978) and compare with Scheuer v. Rhodes, 416 U.S. 232, 247-48, 94 S.Ct.	{ "pile_set_name": "FreeLaw" }
358 F.2d 1002 Martha W. BROWN, Individually and as Agent and Attorney for William D. Brown, III, Grady W. Brown, Philip B. Brown and Martha Brown Wilsonv.The UNITED STATES. No. 141-65. United States Court of Claims. April 15, 1966. William D. Brown, Monroe, La., attorney of record, for plaintiffs. Theus, Grisham, Davis, Leigh & Brown, Monroe, La., of counsel. Edward L. Metzler, Washington, D. C., with whom was Asst. Atty. Gen., John W. Douglas, for defendant. Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS and COLLINS, Judges. PER CURIAM:* 1 According to the petition, which was filed on April 30, 1965, the plaintiffs are the widow and surviving children of William Dennis Brown, Jr., and, as such, they are the owners through inheritance of farmlands situated in East Carroll Parish, Louisiana. The lands in question are suitable for the production of rice; and prior to and during the crop year 1958, such lands received a rice acreage allotment of 307.5 acres in accordance with the provisions of the Agricultural Adjustment Act of 1938, as amended. This statute, prior to 1958 and during the early part of that year, provided (among other things) for the establishment by the Secretary of Agriculture, on a calendar year basis, of a national acreage allotment for rice (7 U.S.C. § 1352 (1952)), for the apportionment of the national acreage allotment among the several rice-producing States (7 U.S.C. § 1353(a) (1952)), and for the allocation of each State acreage allotment "to farms owned or operated by persons who have produced rice in the State in any one of the five calendar years immediately preceding the year for which such apportionment is made on the basis of past production of rice in the State by the producer on the farm taking into consideration the acreage allotments previously established in the State for such owners or operators; abnormal conditions affecting acreage; land, labor, and equipment available for the production of rice; crop rotation practices; and the soil and other physical factors affecting the production of rice * * " (7 U.S.C. § 1353(b) (1952, Supp. V)). 2 On June 4, 1958, the provision of the Agricultural Adjustment Act of 1938, as amended, relating to the allocation of each State acreage allotment for rice at the farm level was further amended by Public Law 85-443 (72 Stat. 177). The petition alleges that, by virtue of this amendment, the rice acreage allotments for the geographical area in which the plaintiffs' lands are located were changed from the "farm" basis to the "producer" basis, and that the rice acreage allotment of 307.5 acres previously mentioned was divided between the plaintiffs and their tenants for the year 1959 and subsequent years, with the result that the plaintiffs were allocated only 79.9 acres for the production of rice in 1959 and subsequent years, the remaining 227.6 acres of the original 307.5-acre allotment being allocated to tenants who had theretofore participated in the gross proceeds of the rice produced from the plaintiffs' lands. This action, according to the petition, amounted to a taking of the plaintiffs' property for public use without just compensation, in violation of the Fifth Amendment to the Constitution of the United States; and the plaintiffs seek to recover $68,280 as compensation in the present action. 3 The petition forthrightly states that the "Plaintiffs have also instituted suit before the United States District Court for the Western District of Louisiana, Monroe Division, seeking further redress and adjudication in connection with the circumstances here set forth * *." 4 The defendant filed a motion to dismiss the petition in this court, on the ground that the Court of Claims lacks jurisdiction of the case because of 28 U.S.C. § 1500 (1964), which declares that: 5 The Court of Claims shall not have jurisdiction of any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United States or any person who, at the time when the cause of action alleged in such suit or process arose, was, in respect thereto, acting or professing to act, directly or indirectly under the authority of the United States. 6 A copy of the complaint filed by the plaintiffs in the United States District Court for the Western District of Louisiana was attached to the defendant's motion to dismiss. The complaint in the District Court case was filed on April 29, 1965, or the day before the plaintiffs filed their petition in the Court of Claims case. 7 The defendants in the District Court case were the United States, the Louisiana Agricultural Stabilization and Conservation Committee, and the East Carroll Parish Agricultural Stabilization and Conservation Committee. The respective committees administer the rice program under the Agricultural Adjustment Act of 1938, as amended, in the State of Louisiana and in East Carroll Parish. The operative facts alleged in the District Court case are the same as the facts alleged in the petition in this court. However, in the District Court case, the plaintiffs asserted alternatively (1) that the administrative officials misconstrued and misapplied the amendment of June 4, 1958, in depriving the plaintiffs of 227.6 acres of the rice acreage allotment previously allocated to their lands and, accordingly, that the plaintiffs are entitled to a reinstatement of the full amount of the previous rice acreage allotment; or (2) that if the amendment of June 4, 1958, has been properly construed and applied by the administrative officials, then the provisions of the amendment, as so construed and applied, have deprived the plaintiffs of their property without just compensation, in violation of the Fifth Amendment to the Constitution of the United States. In either event (according to the plaintiffs' allegations in the District Court case), they have been wrongfully deprived of 227.6 acres of their rice acreage allotment for 5 years, and they are entitled to recover compensation at the rate of $6,828 per year for each of the 5 years. The plaintiffs further said in the District Court case that they are asserting a separate claim for each year (doubtless having in mind the $10,000 limitation imposed by 28 U.S.C. § 1346(a) (2) (1964) on the jurisdiction of District Courts with respect to suits against the United States). 8 On October 1, 1965, this court, noting that "plaintiffs have previously filed suit in the U.S. District Court for the Western District of Louisiana, Monroe Division, seeking, as one alternative relief, just compensation for the taking of their property which claim is identical in substance to that asserted in the petition in this court and which claim remains pending in the said District Court" [emphasis added], dismissed the petition, without prejudice, on the basis of 28 U.S.C. § 1500, supra. 9 Plaintiffs moved for rehearing (in October 1965) on the ground that, in the District Court, the Government had moved to dismiss the alternative claim for just compensation as beyond that court's jurisdiction. Thereafter the plaintiffs filed a supplemental motion for rehearing indicating that the District Court, on December 9, 1965, had sustained the Government's motion and had dismissed on jurisdictional grounds the plaintiffs' claim for compensation. This court has ascertained that no appeal has been taken from that ruling and that the period for appeal has now expired. At the present time, therefore, the only claim for just compensation pending in a court is that stated in the plaintiffs' petition in this court. 10 In these circumstances we grant the motions for rehearing, vacate our prior order dismissing the petition, and now deny the defendant's motion to dismiss. Our earlier order of dismissal was predicated on the fact that the other "claim remains pending in the said District Court." That is no longer true, and the claim is no longer "pending in any other court." In this situation, we do not believe that 28 U.S.C. § 1500 requires us to deprive plaintiffs of the only forum they have in which to test their demand for just compensation. The District Court has decided that this claim is beyond its jurisdiction and plaintiffs have acquiesced in that ruling. Unless they can proceed in this court they will be unable to attempt to obtain a determination of the merits of this monetary claim. Section 1500 was designed to require an election between two forums both of which could presumably grant the same type of relief. See Casman v. United States, 135 Ct.Cl. 647 (1956); Tecon Engineers, Inc. v. United States, 343 F.2d 943, 945 ff., 170 Ct.Cl. 389, 393 ff. (1965), cert. denied, 382 U.S. 976, 86 S.Ct. 545, 15 L.Ed.2d 468 (1966). But Section 1500 was not intended to compel claimants to elect, at their peril, between prosecuting their claim in this court (with conceded jurisdiction, aside from Section 1500) and in another tribunal which is without jurisdiction. Once the claim has been rejected by the other court for lack of jurisdiction, there is no basis in the policy or wording of the statute for dismissal of the claim pending here. The plaintiffs could undoubtedly file a new petition, without any bar through Section 1500; it does not seem fair or make sense to insist that that must be done — with the limitations difficulties it may well entail. Tecon Engineers, Inc., supra, teaches that the section should be given a reasonable and just construction	{ "pile_set_name": "FreeLaw" }
698 F.2d 1221 Moorev.Union Mut. Life Ins. Co. 80-1633 UNITED STATES COURT OF APPEALS Sixth Circuit 2/5/82 1 E.D.Mich. AFFIRMED	{ "pile_set_name": "FreeLaw" }
UNITED STATES of America, Plaintiff-Appellee, v. Nicholas GRANT, Defendant-Appellant. Nos. 99-12052, 99-13303. United States Court of Appeals, Eleventh Circuit. July 10, 2001. Appeals from the United States District Court for the Middle District of Florida. (Nos. 98-00198-CR-T-26C and 93-00083-CR-T-26B), William J. Castagna, Judge. Before CARNES and RONEY, Circuit Judges, and ALAIMO, District Judge. CARNES, Circuit Judge: Nicholas Grant appeals his convictions for conspiracy to possess with intent to distribute cocaine and marijuana, in violation of 21 U.S.C. § 846, use of a firearm during a drug-trafficking crime, in violation of 18 U.S.C. § 924(c), and failure to appear, in violation of 18 U.S.C. § 3146(a)(1). These questions are presented: whether Grant's appeal on the conspiracy and firearms charges was timely; whether there was sufficient evidence to convict him on the failure to appear and the conspiracy charges; and whether statements of an alleged co-conspirator exculpating Grant were inconsistent statements admissible for purposes of impeachment pursuant to Federal Rule of Evidence 806. We answer all three questions "yes." The affirmative answer to the third one requires that we reverse Grant's conviction on the conspiracy and use of a firearm charges. I. BACKGROUND A. FACTS In early 1993, United States Customs Service Special Agent Louis Mozas met with Deosie Wilson and discussed Wilson's plan to have Mozas smuggle 2000 pounds of marijuana from Jamaica into the United States, which Wilson would then sell. Jamaican police seized the marijuana which was to be smuggled in, however, so the transaction was not consummated. Mozas next advised Wilson that Mozas would be smuggling one hundred kilograms of cocaine from Columbia, for which he would be paid 18,000 pounds of marijuana. Wilson agreed to market that marijuana Honorable Anthony A. Alaimo, U.S. District Judge for the Southern District of Georgia, sitting by designation. for Mozas. Upon inspection, Wilson deemed the marijuana to be of poor quality, but set out to market it anyway. Mozas also advised Wilson that he had 15 kilograms of cocaine, and Wilson agreed to assist in selling it. Wilson departed for Jamaica on March 12, 1993, and returned to Tampa on March 18, 1993. Mozas picked up Wilson at the Tampa airport and took him to an undercover residence in Homosassa, Florida. In connection with his planned purchase of the cocaine from Mozas, Wilson advised Mozas that $100,000 had been transferred into Wilson's bank account and that the funds would be available the next day. On March 19, 1993, Mozas accompanied Wilson to a bank in Homosassa, Florida and was present when Wilson obtained a cashier's check for $100,000. Mozas and Wilson then returned to the undercover residence. Later that same afternoon, Mozas dropped Wilson off at the same bank. Wilson remained inside the bank for between one to five minutes before leaving with the occupants of a waiting Nissan Pathfinder. Undercover agents followed the Pathfinder, which drove by the undercover residence and then to a restaurant. A short while later, Wilson and Grant were observed leaving the restaurant and entering the Pathfinder. The agents followed the Pathfinder as it returned to the undercover residence, where Wilson was dropped off. The agents then followed the Pathfinder as it returned to the restaurant. Wilson arrived at the undercover residence carrying a bundle underneath his shirt. The agreement between Mozas and Wilson provided that Wilson would purchase 10 kilograms of cocaine from Wilson at $15,000 per kilogram, or $150,000 total. Wilson went into a bedroom at the residence and, upon his return, produced a vinyl pouch containing $50,000 in United States currency. Mozas then instructed Detective Michael Joyner to bring the cocaine to the residence. Joyner brought the cocaine and Wilson showed him the $100,000 cashier's check and $50,000 cash. Wilson told Mozas that Grant was in Homosassa Springs, but that Grant did not want to meet anyone. Wilson then put down $15,000, left with one kilogram of cocaine, and was arrested immediately thereafter. Wilson was talking on a cell phone at the time of his arrest and the person to whom he was speaking was exclaiming "police, police, police." Within one minute of being informed that Wilson had been arrested, the undercover agents observing the Pathfinder saw Grant and his brother quickly run from the restaurant and depart in the Pathfinder. Grant drove slowly by the location where Wilson was being arrested and then fled the area at approximately 80 miles per hour. After a brief chase, Grant was arrested and a search of the Pathfinder revealed two loaded semi-automatic pistols, one in the glove compartment and another in a duffle bag on the floor in front of the back seat, and an open briefcase containing $11,208. After his arrest, Grant told Customs Special Agent Phillip Aston that while he was in Jamaica Wilson had contacted him about participating in a marijuana transaction. Grant did not, however, mention anything about a cocaine transaction. Grant also told Aston that on March 18, 1993, he had traveled from Jamaica to Miami with approximately $16,000 in cash. Grant had a passport bearing his photograph and name which documented that he had left Jamaica on March 18, 1993. Grant admitted to Aston that he had been speaking to Wilson on the telephone before Grant had run from the restaurant, but claimed that he and his brother had decided that they did not want to participate in Wilson's transaction anymore and had decided to leave. Grant was released on bond on March 26, 1993. Four days later, he was indicted on one count of conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846. Grant pleaded not guilty at his arraignment. The United States requested a show cause hearing for revocation of Grant's bond on the grounds that he had failed to comply with the conditions of his release. The magistrate judge scheduled a show cause hearing for May 17, 1993. On May 4, 1993, the clerk's office sent notice of that scheduled hearing to Grant. After Grant failed to appear for the show cause hearing, a warrant was issued for his arrest. On February 16, 1998, a detective assigned to a Customs task force arrested Grant at the Miami International Airport. At the time of his arrest, Grant possessed two Jamaican driver's licenses—both bearing his photograph, but one in his name and one in the name of Rory Roberts. Grant was advised of his rights and agreed to be interviewed. During that interview, Grant stated that there was a fugitive warrant issued for his arrest and that he needed to use a different name to avoid arrest and prosecution in the United States. He explained to the detective that the fugitive warrant was the result of an arrest that had occurred in Tampa on a charge of attempting to purchase cocaine from undercover Customs agents and that he failed to appear in court and had fled to Jamaica in order to avoid prosecution on that charge. B. PROCEDURAL HISTORY A superseding indictment was returned on March 19, 1998 charging Grant with one count of conspiracy to possess with intent to distribute cocaine and marijuana, in violation of 21 U.S.C. § 846, and one count of use of a firearm during a drug trafficking crime, in violation of 18 U.S.C. § 924(c). Grant was convicted by a jury on both counts on May 19, 1998. On May 14, 1998 Grant was indicted for failing to appear at the May 17, 1993 show cause hearing, in violation of 18 U.S.C. § 3146(a)(1). After a bench trial, Grant was convicted of that charge on October 7, 1998. At a consolidated sentencing hearing on June 18, 1999, Grant was sentenced to imprisonment for 145 months for the conspiracy conviction, 60 months for the firearms conviction, and 6 months for the failure to appear conviction, all sentences to run consecutively. Grant filed a motion for a new trial and a renewed motion for judgment of acquittal, both of which were denied. Grant appeals his convictions on several grounds. Among other things, he argues that there was insufficient evidence to sustain his convictions on the failure to appear and the conspiracy charges. Grant also argues that evidence which would have impeached testimony elicited from Wilson at trial was improperly excluded, in violation of Federal Rule of Evidence 806.1 II. DISCUSSION A. THE JURISDICTIONAL QUESTION As a threshold matter, we must decide whether Grant's appeal of the conspiracy and firearms charges is timely. After Grant's consolidated sentencing hearing, the district court entered one judgment as to both cases. The judgment bore the district	{ "pile_set_name": "FreeLaw" }
FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS October 9, 2008 FOR THE TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court KEVIN SANCHEZ, Plaintiff-Appellant, v. No. 08-2018 (D.C. No. 1:06-CV-01121-WJ-CG) TOM HAVEL, Administrator, (D. N.M.) San Juan County Detention Center; MYA DONALDSON, Administrator, Medical Department San Juan County Detention Center, Defendants-Appellees. ORDER AND JUDGMENT * Before TACHA, PORFILIO, and TYMKOVICH, Circuit Judges. Plaintiff appellant Kevin Sanchez filed a complaint in district court under 42 U.S.C. § 1983 claiming that he received negligent medical treatment while he was incarcerated in the San Juan County New Mexico Detention Center. The * After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. district court adopted the findings and proposed disposition of the magistrate judge and granted summary judgment to defendants based on grounds of both claim and issue preclusion, and plaintiff appeals. “On account of [plaintiff’s] pro se status, we liberally construe his filings, but hold him to the same rules of procedure as other litigants.” Davis v. Kan. Dep’t of Corrs., 507 F.3d 1246, 1247 n.1 (10th Cir. 2007). We have jurisdiction under 28 U.S.C. § 1291, and, after our de novo review of the grant of summary judgment, Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999), we affirm. In May 2006, plaintiff brought a state-court action against defendant Havel and Correctional Healthcare Management alleging false imprisonment and medical negligence. Because plaintiff’s claims were barred by the applicable statute of limitations, the state court dismissed all of his claims with prejudice. Sanchez v. Havel, No. CV-06-562-3 (N.M. 11th Judicial Dist. Ct. filed Nov. 7, 2006) (Sanchez I). Plaintiff then filed the instant action in federal court making substantially the same allegations regarding medical negligence that he did in state court but including Mya Donaldson as an additional defendant. With regard to the claims against defendant Havel, the district court correctly concluded that the doctrine of claim preclusion barred plaintiff’s attempt to relitigate the issues he raised in Sanchez I. It also correctly determined that issue preclusion similarly barred the claims against defendant Donaldson. We -2- therefore affirm the judgment of the district court for substantially the reasons stated by that court. Plaintiff’s argument that the district court erred in failing to order defendants to produce pertinent medical records is unavailing because plaintiff cannot proceed with this action in the first instance. Further, there is no factual support for plaintiff’s charge that the court was biased against him because of his inmate status or because he was not a state or city employee. Plaintiff’s charge in his “closeing [sic] statement and facts” that certain individuals conspired to intercept his outgoing legal mail was not included in the complaint and thus not before the district court. As such, it will not be considered on appeal. Walker v. Mather (In re Walker), 959 F.2d 894, 896 (10th Cir. 1992). To the extent plaintiff asserts error in the court’s denial of his motion to reopen the case, construed as a Fed. R. Civ. P. 59(e) motion, we find no abuse of discretion in that decision. See Butler v. Kempthorne, 532 F.3d 1108, 1110 (10th Cir. 2008). Plaintiff’s motion for judgment in his favor is DENIED. Plaintiff’s motion for leave to proceed on appeal without prepayment of costs or fees is GRANTED. Plaintiff is reminded of his obligation to continue making partial payments pursuant to 28 U.S.C. § 1915(b) until the filing fee is paid in full. -3- The judgment of the district court is AFFIRMED. Entered for the Court Timothy M. Tymkovich Circuit Judge -4-	{ "pile_set_name": "FreeLaw" }
COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-11-00077-CV IN RE KEY SAFETY SYSTEMS, RELATOR INC. ------------ ORIGINAL PROCEEDING ------------ MEMORANDUM OPINION1 ------------ The court has considered relator’s petition for writ of mandamus and is of the opinion that relief should be denied. Accordingly, relator’s petition for writ of mandamus is denied. Relator shall pay all costs of this original proceeding, for which let execution issue. LEE GABRIEL JUSTICE PANEL: LIVINGSTON, C.J.; MCCOY and GABRIEL, JJ. MCCOY, J. would request a response. DELIVERED: March 14, 2011 1 See Tex. R. App. P. 47.4, 52.8(d).	{ "pile_set_name": "FreeLaw" }
45 Md. App. 489 (1980) 413 A.2d 1365 CARLTON G. BEALL v. CECELIA M. BEALL. No. 1065, September Term, 1979. Court of Special Appeals of Maryland. Decided May 8, 1980. 490 The cause was argued before MOORE, LOWE and COUCH, JJ. J. Frederick Garner, with whom was C. Calvert Lancaster on the brief, for appellant. Steven Rosen, with whom were Willoner, Calabrese & Rosen, P.A. on the brief, for appellee. MOORE, J., delivered the opinion of the Court. This appeal concerns an alleged option agreement and a suit by Carlton G. Beall for the specific performance thereof. The Circuit Court for Prince George's County (Melbourne, J.) found the agreement unsupported by consideration and dismissed plaintiff's bill of complaint pursuant to Maryland Rule 535. From that order, he appeals to this Court. I In 1968, the plaintiff, Carlton G. Beall, purchased a farm in Prince George's County from Pearl Beall. At that time, the property was farmed by Pearl's son, Calvin Beall. The record discloses that Carlton, the plaintiff, and Calvin were second cousins. Calvin was married to Cecelia M. Beall, the defendant herein. Carlton agreed that Calvin could continue to farm the property if he would pay the annual property taxes. Calvin and Cecelia owned and resided on a parcel of about one-half acre that was bordered on three sides by the farm bought by the plaintiff; and it is that parcel that is the subject of this dispute. On the day that plaintiff contracted to buy Pearl's farm, he obtained a three-year option to purchase Calvin's and 491 Cecelia's parcel for $28,000.00. The option recited a consideration of $100.00 which was paid by check. In 1971, the parties executed a new option, for five years, but on the same terms and reciting an additional $100.00 consideration. This 1971 option was never exercised by the plaintiff, but prior to its expiration the following language was appended at the bottom of the page: "As of October 6, 1975, we, Calvin E. Beall and Cecelia M. Beall, agree to continue this option agreement three more years Feb. 1, 1976 to Feb. 1, 1979. /s/ Calvin E. Beall /s/ Cecelia M. Beall." It is this purported extension that forms the basis for plaintiff's bill of complaint seeking specific performance of the agreement. Calvin died in August 1977, and Cecelia now holds the fee simple title by right of survivorship. In letters dated May 24, 1978 and September 14, 1978, the plaintiff advised Cecelia that he was electing to exercise the option. He scheduled settlement for October 5, 1978. As the chancellor found: "It is undisputed in this case that Mr. Carlton Beall did eventually hire attorneys to search the title, set a settlement date, attend the settlement, and was ready, willing and able to perform the contract." Cecelia refused to attend settlement, and this suit for specific performance ensued. At trial, after plaintiff presented his evidence, Cecelia moved to dismiss the bill of complaint. The chancellor granted the motion because she felt that the option agreements were not supported by consideration in that "no benefit ... flowed to Cecelia Beall." In addition, as to the 1975 alleged option, the chancellor ruled: "[T]here is no consideration recited in that extension or purported extension of the original 492 option contract. And the one extension that had occurred in the interim, even then would also fail because there is no consideration stated in the extension. It is clear that consideration must pass for the extension each time, in some form of consideration. None is stated within the written four lines." On appeal, the plaintiff contends that the chancellor erred in dismissing the bill of complaint and in excluding certain testimony relative to oral transactions with Calvin, the deceased husband of the defendant. II Under Maryland law it is clear that "an option is not a mere offer to sell, which can be withdrawn by the optionor at any time before acceptance, but a binding agreement if supported by consideration." Blondell v. Turover, 195 Md. 251, 256, 72 A.2d 697, 699 (1950). In other words, an option is an agreement to keep an offer open that requires consideration to give it its irrevocable character. Goldman v. Connecticut General Life Insurance Co., 251 Md. 575, 581, 248 A.2d 154, 158 (1968). Once the option is exercised by the optionee a binding contract is created that may be enforced through a decree commanding specific performance. Diggs v. Siomporas, 248 Md. 677, 681, 237 A.2d 725, 727 (1968); Blondell v. Turover, supra, 195 Md. at 256, 72 A.2d at 699. It is apparent, then, that an option must be supported by consideration in order to be irrevocable for the period provided in the option. When, however, the consideration allegedly supporting an option fails or is nonexistent, the option is no longer irrevocable but rather it becomes "a mere offer to sell, which can be withdrawn by the optionor at any time before acceptance...." Blondell v. Turover, supra, 195 Md. at 256, 72 A.2d at 699. The failure of consideration destroys the irrevocability of the option; it nonetheless retains its essential characteristic as an offer to buy or sell for the 493 period stated in the option or until revoked. It has been recognized that equity will enforce a resulting contract despite lack of consideration for the option: "While the rule that equity will enforce a contract consummated by the acceptance of an option within the time and upon the terms of the option is often stated in such a way as to suggest or imply the necessity of consideration for the option, all that is meant in most cases is that a consideration is necessary to prevent the defendant from asserting his withdrawal of the option before its acceptance by the plaintiff and before the expiration of the time fixed in the option within which acceptance could be made." 71 Am.Jur.2d, Specific Performance § 143 (1973) (footnotes omitted). See 1A Corbin on Contracts § 263 (1963). See generally Kahn v. General Development Corp., 40 Del. Ch. 83, 92, 174 A.2d 307, 312 (1961) (failure of consideration "destroyed the irrevocability of the option"). Burkhead v. Farlow, 266 N.C. 595, 597, 146 S.E.2d 802, 804 (1966) (option without consideration was "mere offer to sell which defendants might have withdrawn at any time before acceptance"); Rose v. Minis, 41 N.J. Super. 538, 543, 125 A.2d 535, 538 (1956) (option which is mere offer is "simply a naked revocable authority"). Assuming, arguendo, that the 1975 option was unsupported by consideration, it remained as an offer to sell the parcel for $28,000. The offer was open until February 1, 1979, but it was revocable at any time by action of Calvin and Cecelia Beall. As stated in the case of Holifield v. Veterans' Farm & Home Board, 218 Miss. 446, 450, 67 So.2d 456, 457 (1953): "It is well settled that an option is not binding as a contract where there is no consideration, unless it is accepted within the time limit and before the offer is withdrawn. Since there was no consideration paid by the Veterans' Farm and Home Board and *494 Mauldin for the option, it could have been revoked by the Holifields at any time before the Veterans' Farm and Home Board and Mauldin notified them that they intended to buy the land; but since the offer was accepted within the time limit and before withdrawal, the contract became binding upon all parties as it was thereafter supported by the consideration of the mutual promises." (Emphasis added.) This statement is generally in accord with the Maryland cases, supra. The chancellor should, therefore, have determined whether or not there was a valid, unrevoked offer to sell the property in dispute and whether or not there was a proper acceptance of that offer sufficient to create a contract specifically enforceable in equity.[1] These issues of offer and acceptance primarily involve factual determinations that initially must be evaluated by the chancellor. As an appellate court, we are limited to a review of the chancellor's findings under the "clearly erroneous" standard. Md. Rule 1086. But our review is dependent upon the existence of factual findings on the issues material to the case. Such findings were not made below. It was error for the chancellor to dismiss plaintiff's bill of complaint at the close of his case. A new trial, in accordance with this opinion, is necessitated. Order reversed; cause remanded for a new trial in accordance with this opinion; costs to abide the final result. NOTES [1] We express no opinion concerning the validity of the chancellor's finding that there was no consideration for the option.	{ "pile_set_name": "FreeLaw" }
927 F.Supp. 171 (1996) Ernest HALFHILL, d/b/a Halfhill Trucking, Plaintiff, v. UNITED STATES of America INTERNAL REVENUE SERVICE, Defendant. Civil Action No. 95-484. United States District Court, W.D. Pennsylvania. March 7, 1996. 172 173 Stephen I. Richman, Ceisler, Richman & Smith, Washington, PA, Gerald P. Duff, Lodge L. Hanlon, John G. Paleudis, Todd M. Kildow, Hanlon, Duff, Paleudis & Estadt, St. Clairsville, OH, for plaintiff. Michelle O. Gutzmer, United States Attorney's Office, Pittsburgh, PA, Charles M. Flesch, Robert S. Attardo, United States Department of Justice, Tax Division, Washington, DC, for United States of America Internal Revenue Service. MEMORANDUM OPINION BLOCH, District Judge. Presently before the Court is defendant's motion for partial summary judgment. For the reasons set forth in this opinion, the Court will grant the defendant's motion. I. Background The facts of record are as follows. In 1978, plaintiff purchased a tractor trailer and started a trucking company called Halfhill Trucking (HT), a sole proprietorship. Plaintiff operated HT as a leasing venture; that is, plaintiff leased HT's truck to various interstate commerce carriers and also provided a truck driver who hauled loads for the carriers. During 1978 and the first half of 1979, plaintiff's son, Ken Halfhill (Halfhill), was HT's sole truck driver. Although Halfhill's primary duty was to drive the truck, Halfhill also had the authority to negotiate with the carriers regarding future leasing of HT's truck. HT, via plaintiff, paid Halfhill based on a percentage of what the carriers paid to lease the truck. During the 1978-1979 period, plaintiff treated Halfhill as his employee and issued him federal Form W-2's. Plaintiff also paid the required federal employment taxes, including social security and unemployment taxes, on Halfhill's earnings. In the middle of 1979, however, Halfhill left HT and became an employee of Sentle Trucking (Sentle). Plaintiff thus decided to modify HT's business, leasing HT's truck to only one carrier Sentle. Subsequently, in late 1981, Sentle's business was deteriorating and Sentle's exclusive lease with plaintiff expired. Plaintiff did not renew this lease; rather, plaintiff purchased another truck and in 1982 began operating HT in a manner more similar to when plaintiff had started the company. Specifically, HT's trucks were leased to different carriers and Halfhill, who had left Sentle, as well as other individuals, drove HT's trucks for the carriers. All of the drivers of HT's trucks had the authority to negotiate leases with the carriers, and plaintiff paid the drivers based on a percentage of what the carriers paid to lease the trucks, as Halfhill was paid in the past. From 1982 until mid-1990, however, plaintiff did not treat the individuals who drove HT's trucks as employees. Rather, plaintiff considered the drivers, including Halfhill, to be independent contractors for federal tax purposes and, therefore, plaintiff did not pay employment taxes on the drivers' compensation. Eventually, in light of tax assessments levied by the Internal Revenue Service, plaintiff paid employment taxes for his drivers for the second half of 1990 in the amount of $49.24. After paying this amount, plaintiff filed an administrative claim seeking a refund of the same. The IRS denied the plaintiff's administrative claim, and plaintiff instituted the instant action seeking a refund of the employment taxes that he had paid. Plaintiff claims that he is entitled to this refund on the ground that HT's drivers are independent contractors, not his employees. Moreover, plaintiff contends that even if the drivers are his employees, plaintiff is entitled to protection under § 530 of the Revenue Act of 1978 which exempts certain employers from tax liability when they have in good faith misclassified their employees as independent contractors. Defendant contests plaintiff's entitlement to a refund, asserting that HT's drivers are, in fact, employees of plaintiff and that plaintiff is not entitled to protection under § 530 of the Revenue Act of 1978. Moreover, defendant filed a counterclaim against plaintiff seeking to recover $222,720.45 of unpaid employment taxes assessed against plaintiff for 174 the 1988 through 1990 tax years. Plaintiff denies liability with regard to the defendant's counterclaim for the same reason that he asserts that he is entitled to a refund. At this time, defendant has moved for summary judgment with regard to the single issue of whether plaintiff is entitled to relief under § 530 of the Revenue Act of 1978.[1] II. Discussion Summary judgment may be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against the party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). In considering a motion for summary judgment, this Court must examine the facts in a light most favorable to the party opposing the motion. Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir.1992), cert. denied, 507 U.S. 912, 113 S.Ct. 1262, 122 L.Ed.2d 659 (1993); International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir.1990). Thus, where the non-moving party's evidence contradicts the movant's, the Court must accept the non-movant's evidence as true. Country Floors, Inc. v. Partnership Composed of Gepner and Ford, 930 F.2d 1056, 1061 (3d Cir.1991). The burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.) (en banc), cert. dismissed, 483 U.S. 1052, 108 S.Ct. 26, 97 L.Ed.2d 815 (1987). Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that "the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial." Id.; Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. The non-moving party "must set forth specific facts showing a genuine issue for trial and may not rest upon mere allegations, general denials, or ... vague statements." Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir.), cert. denied, 502 U.S. 940, 112 S.Ct. 376, 116 L.Ed.2d 327 (1991). If the non-moving party does produce contradictory evidence, however, then the "believability and weight of the evidence remains the province of the factfinder." Big Apple, 974 F.2d at 1363. In this case, defendant asserts that it is entitled to summary judgment with regard to plaintiff's claim that he qualifies for relief from tax liability under § 530 of the Revenue Act of 1978. More specifically, defendant asserts that plaintiff is not entitled to protection under § 530 because he cannot meet § 530's "consistency requirement." Plaintiff, on the other hand, contends that there are material issues of fact in dispute with regard to this claim that preclude a grant of summary judgment. A. Federal employment taxes and § 530 of the Revenue Act of 1978 Under the Internal Revenue Code, "employers must pay social security and unemployment taxes on behalf of their employees." Hospital Resource Personnel, Inc. v. United States, 68 F.3d 421, 424 (11th Cir.1995).[2] "These taxes are known collectively as `employment taxes.'" Id. "Employers are only required to ... pay these 175 employment taxes, however, in regard to payments to `employees,' not to `independent contractors.'" Id. "In connection with payments to `independent contractors,' employers only have to send annual information returns, on Form 1099 to the worker and on Forms 1096 and 1099 to the IRS, indicating the income paid [to the independent contractor] during the year." Id.; see also Boles Trucking, Inc. v. United States, No. 95-1826, 77 F.3d 236, 238-39 (8th Cir.1996). In light of these tax consequences, their proper characterization of the employment relationship is vital. Under certain circumstances, however, an employer who has mistakenly treated its employees as independent contractors and has thus failed to pay the required employment taxes may be relieved of its tax liability pursuant to § 530 of the Revenue Act of 1978. Congress created the "safe harbor" provisions of § 530 in order to alleviate "what was perceived as overly zealous pursuit	{ "pile_set_name": "FreeLaw" }
F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUL 18 2003 TENTH CIRCUIT PATRICK FISHER Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee, No. 02-1522 v. (D. Colorado) SERGIO ORTEGA-GUZMAN, (D.C. No. 02-CR-134-N) Defendant-Appellant. ORDER AND JUDGMENT * Before EBEL, HENRY, and HARTZ, Circuit Judges. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2)(c); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Sergio Ortega-Guzman pleaded guilty to unlawfully reentering the United States after deportation for an aggravated felony in violation of 8 U.S.C. §§ * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 1326(a) and (b)(2). He appeals the district court's denial of his motion to dismiss the indictment and raises an issue regarding his sentence. Counsel appointed to represent defendant on appeal filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). We affirm the district court’s denial of Mr. Ortega-Guzman’s motion to dismiss the indictment and we affirm the conviction. I. BACKGROUND Mr. Ortega-Guzman, a Mexican citizen, was deported by the United States in August 2001. He had previously been convicted of an aggravated felony in Colorado state court. He subsequently returned to the United States without lawful permission, and, in March of 2002, he was arrested in Weld County, Colorado, where state authorities charged him with driving without a license and without valid insurance. Convicted of both charges, he spent ten days in jail, after which the Immigration and Naturalization Service took him into custody. The federal government indicted him for violating 8 U.S.C. § 1326(a) and (b)(2), charging that he illegally re-entered the United States after deportation and that he did so after being convicted of an aggravated felony. Mr. Ortega-Guzman moved to dismiss the indictment before trial, claiming that his original deportation proceeding was tainted by a due process violation. The district court denied the motion. -2- After the district court rejected this motion to dismiss the indictment, Mr. Ortega-Guzman pleaded guilty to the charged offense. His “Rule 11 Plea Statement,” which the parties submitted in lieu of a formal plea agreement, was unconditional, that is, it preserved no issues for appeal. The district court accepted Mr. Ortega-Guzman’s guilty plea, finding that it met all the requirements set forth in Fed. R. Crim. P. 11. After the district court rejected Mr. Ortega-Guzman’s motion for a downward departure, Mr. Ortega-Guzman was sentenced to 57 months’ imprisonment. II. DISCUSSION Mr. Ortega-Guzman has asked his counsel to appeal the district court’s denial of his motion to dismiss the indictment and to challenge the denial of the motion for downward departure. Anders holds that if counsel finds a case to be wholly frivolous after conscientious examination, he should so advise the court and request permission to withdraw. Counsel must in addition submit to both the court and his client a brief referring to anything in the record arguably supportive of the appeal. The client may then raise any points he chooses, and the appellate court thereafter undertakes a complete examination of all proceedings and decides whether the appeal is in fact frivolous. If it so finds, it may grant counsel’s request to withdraw and dismiss the appeal. See Anders, 386 U.S. at 744. -3- Mr. Ortega-Guzman Defendant was notified of his right to file a pro se brief, and he has chosen not to do so. Accordingly, we turn to an examination of the proceedings below to determine if the appeal is wholly frivolous. In his Anders brief, counsel first dismisses the possibility that the district court erred in denying the motion to dismiss the indictment. As noted above, however, Mr. Ortega-Guzman’s plea agreement preserved no issues for appeal. See United States v. Ryan, 894 F.2d 355, 360-61 (10th Cir. 1990) (Rule 11 requires a defendant to reserve the specific issue to be appealed). In the absence of a conditional plea, a defendant who pleads guilty admits to all of the factual allegations contained in the indictment and the legal consequences of those acts. See United States v. Broce, 488 U.S. 563, 569-70 (1989); see also Tollett v. Henderson, 411 U.S. 258, 267 (1973) (“When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea.”). Mr. Ortega-Guzman does not challenge the “voluntary and intelligent character” of his guilty plea. See id., 411 U.S. at 267. Consequently, Mr. Ortega-Guzman has no basis for collaterally attacking his deportation proceeding. -4- Next, Mr. Ortega-Guzman challenges the district court’s failure to grant him a downward departure. In so doing, the court clearly recognized that it had the discretion to depart downward but declined to do so. Because the court acknowledged its authority to grant such a departure, we have no jurisdiction to review its decision refusing to exercise that authority. See United States v. Castillo, 140 F.3d 874, 889 (10th Cir. 1998). We have carefully examined the record to ascertain whether any other ground exists to support a challenge to defendant's sentence. We find nothing in the record to indicate that the sentence imposed was in violation of the law or the result of a misapplication of the sentencing guidelines. Accordingly, we are without jurisdiction to consider such a challenge. See United States v. Sanchez, 146 F.3d 796, 796-97 (10th Cir. 1998); 18 U.S.C. § 3742(a). III. CONCLUSION Accordingly, we AFFIRM the judgment of the district court denying Mr. Ortega-Guzman’s motion to dismiss the indictment, we AFFIRM the conviction, and we GRANT counsel’s motion to withdraw. Entered for the Court, Robert H. Henry Circuit Judge -5-	{ "pile_set_name": "FreeLaw" }
374 So.2d 929 (1979) Richard GRAHAM v. STATE. 4 Div. 685. Court of Criminal Appeals of Alabama. March 27, 1979. Rehearing Denied April 17, 1979. 930 David C. Emery, Ozark, for appellant. William J. Baxley, Atty. Gen., and Edwin L. Yates, Asst. Atty. Gen., for the State, appellee. LEIGH M. CLARK, Retired Circuit Judge. Appellant was indicted for murder in the first degree of "Donna M. Wilcynski, by stabbing her with a knife or other sharp instrument." A jury found him guilty of murder in the first degree as charged and fixed his punishment at life imprisonment. He was sentenced accordingly. Appellant submits as the only issue on appeal: "Whether or not sufficient evidence was presented to sustain the verdict of first degree murder." We have no doubt that there was bountiful evidence that the alleged victim was brutally slain, in the manner charged in the indictment, by some fiend, and that the homicide was murder in the first degree. The only controverted issue on the trial was whether defendant-appellant committed the homicide. The record indicates, and almost conclusively shows, that there was no eyewitness to the homicide other than the victim and her murderer(s); that they were the only persons in the apartment of the victim at Byrd Apartments, Ozark, when she was killed, between 11:00 P.M. and midnight on April 11, 1978. Her death resulted from multiple stab wounds in various parts of her body, from front to back and from head to feet. They were so extensive and numerous that the physician who examined her body was unable to number them. He grouped them in a description of them in his testimony as shown by six complete pages of the record. That she was dead before or immediately after the completion of the stabbing of her, there can hardly be any doubt. Her body was not discovered until late in the afternoon on April 12, 1978, after neighboring apartment dwellers had become concerned about her, one of them noting that her automobile was at its accustomed place at the apartment, that she was nowhere to be seen, that her apartment was locked and that efforts to get her to the door were futile. One of them called an officer and soon thereafter a number of them arrived. Upon arrival of the officers, a master key was obtained, and thereby her apartment was entered by one of the officers, who found her body in the bathtub. He promptly secured the scene and sent for an investigator of the Police Department of Ozark, 931 who soon arrived; he looked at the body in the bathtub, and then observed a three-year-old child in the bedroom of the apartment. He then called the coroner and personnel from the crime laboratory and secured the building for a thorough and accurate on-the-premises criminal investigation by experienced personnel, which was assiduously performed, continuing for about two hours at the scene. Blood samples were obtained, latent fingerprints were lifted, numerous photographs were taken, samples of hair were gathered from the apartment and other physical items of evidence were taken into custody. The victim's body in the bathtub was lying on its back. All but the face was covered with sheets and other coverings from her bed. Upon removal of the bed coverings, her body was completely nude. There was no water in the bathtub; the drain thereof was closed. The floor of the bathroom was dry, but the carpet or rug in the hall was soaked with water, and the carpet or rugs in the victim's bedroom and in the child's bedroom were wet. A test made by an officer showed that water from the overflowing bathtub would run into portions of the floor of the apartment that were wet. Bloodstains were found at several places in the apartment, including the mattress and the box springs of victim's bed, the floor, walls, curtains, and on the outside handle of the door to the apartment. The furniture in the bedroom appeared to be ransacked. The living room appeared to be normal. There were pry marks on the outside of a window to the apartment. The evidence, consisting of the testimony of twenty-seven witnesses and numerous exhibits, is almost, if not entirely, free of substantial conflict. Witnesses for the State may be grouped: (1) Those testifying as to conduct of defendant while at Byrd Apartments on Sunday, April 9, 1978, (2) Those testifying as to his conduct at Byrd Apartments the night of the murder, April 11, 1978, (3) A few who heard noises in the victim's apartment between 11:00 P.M. and midnight, April 11, (4) Expert and lay witnesses as to the condition and contents of the victim's apartment at the time her body was discovered therein in the late afternoon of April 12, (5) Witnesses, chiefly expert witnesses, as to (a) the condition of the corpse, (b) fingerprints, (c) samples of blood found in the victim's apartment, (d) samples of hair from victim's apartment, (e) what was revealed by a search of defendant and his home, (f) statements made by defendant after the murder and (g) what was found in defendant's automobile that he was driving the night of the murder. Evidence on behalf of defendant consisted of defendant's own testimony as to his conduct on Sunday, April 9, and on the night of the murder and the testimony of his wife, which pertained chiefly to his conduct prior to his going to the Byrd Apartments on April 11 and his return to their home after midnight of the night of the murder. Some of the witnesses for the State who testified as to the presence and conduct of defendant at the Byrd Apartments on Sunday, April 9, 1978, said they saw him at the courtyard with his young son Sunday morning; that there was a "cookout" party that afternoon and that defendant and his son and the victim and her daughter, the child who was in the victim's apartment the night of the murder, were at the party; that defendant played with Mrs. Wilcynski's child, and inquired of some at the party as to Mrs. Wilcynski. There was some evidence that he attempted to converse with Mrs. Wilcynski but that she did not talk with him. Captain William Dortch, of the United States Army, a friend of appellant (a warrant officer of the Army) had an apartment at the Byrd Apartments. Defendant was visiting Captain Dortch on Sunday, April 9. According to defendant's testimony, he was invited by Captain Dortch to stay for the cookout late that afternoon. *932 Appellant returned to the apartment complex on the evening of April 11. As much of the testimony is merely cumulative as to undisputed facts, no attempt will be made to particularize the testimony of all of the individual witnesses or to name all of them. Mrs. June Napier, who had seen appellant in the courtyard on Sunday afternoon, testified also that as she was unloading groceries from her automobile on the night of the murder, appellant approached her, picked up a bag of groceries and stated that he would help her take them up the stairs. She said, "I told him that was all right, that I could get them and he said, `Well, I understand how it is. It's awful hard to raise children alone, isn't it?' and I told him that I wasn't alone. ". . . "I took the groceries in the house and he just came in with a sack of groceries and put them down and ". . . "He was talking to me and I can't remember what he was saying, because I was in a hurry and trying to get dinner ready before Vincent [her husband] came home. I was a few minutes late, and my little girl cut her finger. She just came out of the bathroom, and I hadn't put up Vincent's things, and she got a razor blade and cut her finger with it, and he picked her up and took her in the bathroom and fixed it up. Then he was just talking to her and I was putting away my groceries and stuff, and a while later Vincent came in." Mrs. Napier further testified that while defendant was in the apartment and before her husband returned, she was going "back and forth getting things out of the car and trying to get dinner ready" and that she noticed defendant drinking a bottle of beer. She said that when her husband arrived, a friend, Jeff Parker, was with him and that defendant remained at the apartment and sat down and talked with Mr. Napier and Jeff Parker. She did not stay with the three men but went into the bedroom. While the door of the bedroom was closed, she heard her husband say, "Don't go in there, because my wife is nursing the baby," and when she heard him say that she "just pulled my blouse down and laid the baby down, and he came in there and put his arm around me, and he said, `Which way is the bathroom.'" She then left the bedroom and went into the room where her husband was, and she assumed defendant went into the bathroom, which other evidence shows that he did. According to additional testimony of Mrs. Napier, she was not certain as to the time defendant left the apartment of the Napiers'. She remembered that he was still there at 10:00 o'clock, and that she had gone downstairs to get some clothes out of the drier and when she returned he had gone. She said he must have gone "around 10:45, or something like that	{ "pile_set_name": "FreeLaw" }
299 F.Supp.2d 166 (2004) Timothy MULDROW, Petitioner, v. Victor HERBERT, Superintendent, Attica Correctional Facility, Respondent. No. 02-CV-6080L. United States District Court, W.D. New York. February 3, 2004. 167 168 Timothy Muldrow, Attica, NY, pro se. Loretta S. Courtney, Monroe County District Attorney's Office, Rochester, NY, for Respondent. DECISION AND ORDER LARIMER, District Judge. INTRODUCTION Petitioner Timothy Muldrow ("Muldrow"), filed this petition pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Court of two counts of second degree murder. For the reasons set forth below, Muldrow's § 2254 petition is denied. FACTUAL BACKGROUND AND PROCEDURAL HISTORY On December 28, 1993, Muldrow participated in the execution-style murder of two people in their home. There was a third victim who survived after being shot in the face. The motivation for the killings was to silence witnesses to previous murders committed by a drug-dealing associate of Muldrow named Jerold Usher ("Usher"). Two days after the shootings, the police seized five guns and other contraband from Muldrow's apartment. Testing revealed that two of these guns fired the bullets that killed one of the victims, and bullets test-fired from a third gun were consistent with those used to shoot the other two victims. Muldrow was indicted jointly with two of the three co-defendants, Raymond Stubbs ("Stubbs") and Anthony McGee ("McGee"), on two counts of murder in the second degree (New York Penal Law ("P.L.") §§ 125.25(1) and 20.00); two counts of felony murder (P.L. §§ 125.25(3) and 20.00); one count of attempted murder in the second degree (P.L. §§ 125.25, 110.00, and 20.00); and one count of assault (P.L. §§ 120.10 and 20.00). Muldrow, Stubbs and Anthony were tried jointly. The fourth perpetrator, Thearthur Grimes ("Grimes"), was tried separately because he confessed to the police that he was present when the murders were committed and implicated Muldrow and McGee as the gunmen. After a jury trial in Monroe County Court, Muldrow was found guilty of two counts of felony murder and sentenced to indeterminate consecutive terms of imprisonment of 25 years to life on each count. Muldrow appealed to the Appellate Division, Fourth Department, which unanimously affirmed his conviction on June 16, 2000. The Court of Appeals denied leave to appeal on September 20, 2000. This federal habeas corpus petition followed. DISCUSSION Muldrow asserts two grounds for entitlement to habeas relief, both of which stem from his appellate counsel's alleged incompetence.[1] First, Muldrow faults counsel for failing to challenge on direct appeal the purported inconsistencies in the verdicts at his trial: McGee was acquitted of all counts of the indictment, Stubbs was convicted on all counts of the indictment, and Muldrow was convicted on the felony murder counts only. Muldrow claims that each co-defendant was required to be acquitted or convicted of the same counts of the indictment in order for the verdicts to be consistent. 169 A claim for ineffective assistance of appellate counsel is evaluated by the same standard as is a claim of ineffective assistance of trial counsel. Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.), cert. denied, 513 U.S. 820, 115 S.Ct. 81, 130 L.Ed.2d 35 (1994) (citing Claudio v. Scully, 982 F.2d 798, 803 (2d Cir.1992), cert. denied, 508 U.S. 912, 113 S.Ct. 2347, 124 L.Ed.2d 256 (1993)). A petitioner alleging ineffective assistance of appellate counsel must prove both that appellate counsel was objectively unreasonable in failing to raise a particular issue on appeal, and that absent counsel's deficient performance, there was a reasonable probability that defendant's appeal would have been successful. Mayo, 13 F.3d at 533-34; see also Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000); Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir.2001). Appellate counsel "need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal." Smith v. Robbins, 528 U.S. at 288, 120 S.Ct. 746 (citing Jones v. Barnes, 463 U.S. 745, 750-54, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983)); accord, e.g., Sellan v. Kuhlman, 261 F.3d at 317 ("This process of `winnowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy.") (citations omitted). The habeas court should not second-guess the reasonable professional judgments of appellate counsel as to the most promising appeal issues. Jones, 463 U.S. at 754, 103 S.Ct. 3308; see also Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir.1998). Thus, a petitioner may establish constitutionally inadequate performance only by showing that appellate counsel "omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Mayo, 13 F.3d at 533. Muldrow's appellate counsel raised three important issues in a thorough appellate brief to the Fourth Department, crafting persuasive arguments as to why the consent to search Muldrow's apartment given by his brother was invalid and why the trial court abused its discretion in allowing David Crutcher ("Crutcher"), who suffered from schizophrenia, to testify at trial. These two issues in particular were of the utmost importance to Muldrow's case, since the ballistics evidence from the guns seized from his apartment, together with Crutcher's testimony, strongly linked him to the murder. In contrast, the repugnant verdict issue urged by Muldrow in this habeas petition was neither significant nor promising on appeal, and it was entirely reasonable for Muldrow's appellate counsel to omit it. Because Muldrow has failed to demonstrate that his appellate counsel's performance was unreasonable, he cannot meet the first prong of the standard by which ineffective assistance claims are judged. However, even if he could establish that his appellate counsel's lawyering was deficient, Muldrow has not demonstrated that he was prejudiced by the deficiency. Because Muldrow and his codefendants were indicted and charged individually for the crimes of murder, as well as in accordance with accomplice liability pursuant to P.L. § 20.00,[2] it is clear that there were, in fact, no inconsistencies in the verdicts. Respondent correctly notes that the jury had to assess the evidence against each of three defendants 170 and make a separate determination of guilt as to each. The fact that the jury convicted two defendants and acquitted a third is of no legal significance. The jury may simply have believed that the evidence was stronger against the two defendants it found guilty, and not convincing as to the defendant (McGee) who was acquitted. Thus, the issue now raised by Muldrow is not persuasive, and he cannot establish prejudice from his appellate counsel's neglect in pursuing the issue because there was no "reasonable probability" that the omitted issue would have succeeded even had it been argued on appeal. See Torres v. Irvin, 33 F.Supp.2d 257, 267 (S.D.N.Y.1998) (even if petitioner could establish that appellate counsel's advocacy was deficient, he suffered no prejudice because no "reasonable probability" that the omitted claims would have succeeded) (citing Mayo, 13 F.3d at 534); Angel v. Garvin, 2001 WL 327150 at *10 (S.D.N.Y. Apr.3, 2001) (finding that petitioner could not establish prejudice as a result of appellate counsel's failure to raise non-meritorious claim based on insufficiency of the evidence). Moreover, an allegedly inconsistent verdict does not present a constitutional violation. Therefore, such a claim is not even cognizable on habeas review. The Supreme Court explained in United States v. Powell that where truly inconsistent verdicts have been reached, the most that can be said ... is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt.... It is equally possible that the jury, convinced of guilt, properly reached its conclusion ... then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the [other] offense. 469 U.S. 57, 58, 64-65, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984) (internal quotations and citation omitted); see also Harris v. Rivera, 454 U.S. 339, 345, 102 S.Ct. 460, 70 L.Ed.2d 530 (1981) ("Inconsistency in a verdict is not a sufficient reason for setting it aside."); United	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 02-2039 ___________ Randy P. Rumsey, * * Appellant, * * Appeal from the United States v. * District Court for the * Western District of Arkansas. Jo Anne B. Barnhart, * Commissioner of Social Security, * [UNPUBLISHED] * Appellee. * ___________ Submitted: November 6, 2002 Filed: November 12, 2002 ___________ Before MORRIS SHEPPARD ARNOLD, BEAM, and RILEY, Circuit Judges. ___________ PER CURIAM. Randy P. Rumsey appeals from the district court's1 dismissal, for lack of jurisdiction, of his petition for review of an agency determination that his claim for disability insurance benefits was barred by administrative res judicata. We affirm. 1 The Honorable Robert T. Dawson, United States District Judge for the Western District of Arkansas, adopting the Report and Recommendation of the Honorable Beverly Stites Jones, United States Magistrate Judge. A federal district court's jurisdiction to review decisions regarding disability benefits is governed by 42 U.S.C. § 405(g). That section provides for review only of a "final decision of the Commissioner . . . made after a hearing." An agency's application of res judicata2 or refusal to reopen a prior determination is not a "final decision" within the meaning of section 405(g). King v. Chater, 90 F.3d 323, 325 (8th Cir. 1996). But there is a narrow exception where the Commissioner reconsiders the merits of an application previously denied. Id. (citing Jelinek v. Heckler, 764 F.2d 507, 508 (8th Cir. 1985)). Such a claim is treated as having been reopened as a matter of administrative discretion and is, therefore, subject to judicial review to the extent it has been reopened. Id. The Commissioner dismissed Rumsey's current application for disability insurance benefits as duplicative of an earlier, unsuccessful claim that alleged the same disability. After a hearing, an Administrative Law Judge ("ALJ") dismissed Rumsey's present claim as barred by the final decision in his earlier claim. The ALJ did not consider the merits of the earlier claim, but, as the district court noted, merely "made a threshold inquiry into the facts and evidence of the previous application to determine if the regulatory requirements for reopening the previous claim had been met." Because the ALJ did not reopen Rumsey's earlier claim, and because its dismissal for res judicata was not a "final decision" within the purview of 42 U.S.C. § 405(g), we have no jurisdiction to review it. We affirm the judgment of the district court. 2 Under the Commissioner's regulations, a request for a hearing may be dismissed as precluded by the doctrine of res judicata. 20 C.F.R. § 404.957(c)(1). And this court has endorsed the application of res judicata in an administrative context. Rush v. Sec'y of Health and Human Servs., 738 F.2d 909, 914 (8th Cir. 1984). -2- A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT. -3-	{ "pile_set_name": "FreeLaw" }
525 S.E.2d 278 (2000) Laura Lee COMBS v. VIRGINIA ELECTRIC & POWER COMPANY, et al. Record No. 990534. Supreme Court of Virginia. March 3, 2000. 279 David D. Walker (George R. Walton, Mechanicsville, on brief), for appellant. Cassandra C. Collins (Michael R. Shebelskie; Andrew R. Park; George W. Marget, 280 III; Hunton & Williams, on brief), Richmond, for appellee. Present: CARRICO, C.J., COMPTON,[1] LACY, HASSELL, KEENAN, KOONTZ, and KINSER, JJ. KINSER, Justice. In this personal injury action, the sole question is whether the circuit court correctly ruled that an employee's exclusive remedy against an employer is under the Virginia Workers' Compensation Act (the Act), Code §§ 65.2-100 through -1310. Because we conclude that the employee suffered an "injury by accident arising out of and in the course of . . . employment," Code § 65.2-101, we will affirm the circuit court's judgment sustaining the employer's special plea in bar. FACTS AND PROCEEDINGS Virginia Electric and Power Company (Virginia Power) arranged for an independent instructor to teach an aerobics class at its Richmond office for the benefit of its employees. Participation in the class by Virginia Power's employees was voluntary. Virginia Power advertised the class on its bulletin boards and in its newsletter. It did not charge for the use of its facility, but participating employees were required to pay a fee to the instructor for the class. The plaintiff, Laura Lee Combs, was an employee of Virginia Power. During her lunch hour on May 24, 1994, Combs participated in the aerobics class and, while doing so, developed a severe headache. The aerobics instructor assisted Combs in lying down and then called Virginia Power's Employee Health Services (EHS), as she had been instructed to do by the EHS coordinator of health programs. The EHS receptionist answered the call and informed Sharon Robinson, EHS coordinator of administrative support, that someone in the aerobics class had a headache and needed some medication. Shortly thereafter, Robinson went to the aerobics room to determine what was happening with regard to Combs. When Combs' head pain did not subside, she was taken to the EHS "quiet room" to rest. The "quiet room" is used by employees who become ill at work, or by recuperating employees who have returned to work after an accident or illness and need to rest during the workday. When an employee is using the room, an EHS staff member is required to be in the office, and the employee is to be checked at regular intervals. After she went to the "quiet room," Combs was not examined by any medical or emergency personnel, nor was her condition regularly monitored by anyone. Approximately two hours after Combs entered the "quiet room," Robinson checked on Combs and discovered that Combs had vomited on herself and was in a coma-like state. Robinson then called security. Combs was eventually transported by ambulance to the Medical College of Virginia where she was diagnosed with intracranial bleeding, a right giant middle cerebral aneurysm, and an intraparenchymal hemorrhage. She subsequently underwent two neurological operations. After release from the hospital, she entered a rehabilitation center where she received therapy for her partial paralysis and cognitive brain damage. On April 30, 1996, Combs filed a motion for judgment against Virginia Power and four of its employees, alleging that the defendants owed her a duty to "have in place proper procedures, and to properly train ... personnel, so that employees using EHS could do so without harm to themselves and detriment to their well-being." Combs further asserted that the defendants breached these duties and were negligent by, inter alia, failing to properly train non-medical personnel working in EHS; failing to implement procedures to provide appropriate medical care to Virginia Power employees who seek treatment at EHS, especially when licensed healthcare professionals are unavailable; and failing to provide proper medical care and treatment when Combs suffered a medical emergency, thereby leaving her unattended for approximately two hours before calling security and 281 a rescue squad. Finally, Combs alleged that the defendants' negligence proximately caused her injury and damages.[2] In response, the defendants filed grounds of defense and a "Special Plea of Workers' Compensation Bar." In the special plea, they asserted that the exclusivity provision of the Act, Code § 65.2-307, barred Combs' claim and therefore deprived the circuit court of subject matter jurisdiction over her claim.[3] Accordingly, the defendants asked the court to dismiss Combs' action. After reviewing the parties' memoranda, the circuit court sustained the special plea and dismissed Combs' action with prejudice. In a letter opinion, the court concluded that the aggravation and acceleration of Combs' pre-existing aneurysm was "an injury by accident arising out of and in the course of her employment with" Virginia Power, and that her action was therefore barred by the exclusivity provision of the Act. We awarded Combs this appeal. ANALYSIS "An injury is subject to the exclusivity provision of the Act if it is the result of an accident and arises out of and in the course of the employment." Richmond Newspapers, Inc. v. Hazelwood, 249 Va. 369, 372, 457 S.E.2d 56, 58 (1995). Thus, the critical inquiry in this appeal is whether Combs' injury was (1) an injury by accident, (2) arising out of, (3) and in the course of, her employment. See Code § 65.2-101; Briley v. Farm Fresh, Inc., 240 Va. 194, 197, 396 S.E.2d 835, 836 (1990). If any one of these elements is missing, then Combs' claim is not covered by the Act, Snead v. Harbaugh, 241 Va. 524, 526, 404 S.E.2d 53, 54 (1991), and she can proceed with her personal injury claim in the circuit court. Thus, we will address each of these criteria seriatim. I. INJURY BY ACCIDENT This Court recently addressed the requirements of an "injury by accident" in Southern Express v. Green, 257 Va. 181, 509 S.E.2d 836 (1999). There, we held that an "injury by accident" occurs when the injury appears "suddenly at a particular time and place[,] and upon a particular occasion[;]" when it is "caused by an identifiable incident[,] or sudden precipitating event[;]" and when the injury results "in an obvious mechanical or structural change in the human body." Id. at 187, 509 S.E.2d at 839. The circuit court found all these factors present with regard to Combs' injury, and we agree. At the outset, it must be emphasized that Combs' injury is not the aneurysm itself. Instead, her injury is the aggravation, exacerbation, and/or acceleration of the aneurysm. That injury resulted from the alleged negligent emergency medical care, or lack thereof, that she received from Virginia Power and its EHS employees after she suffered a severe headache during the aerobics class. Thus, Combs' argument that there is no evidence with regard to when the aneurysm initially started leaking or when she experienced the first onset of symptoms is irrelevant to the question whether she sustained an "injury by accident." The record in this case, in particular Combs' motion for judgment, demonstrates that she suffered an "injury by accident" under Code § 65.2-101. The particular time, place, and occasion of her injury was at the EHS "quiet room" in Virginia Power's Richmond office, during the two to three hours that elapsed from when she first developed the headache and was taken to the "quiet room" until she was transported to the hospital. The identifiable or precipitating event was the alleged negligent emergency medical treatment that she received during this span of time. Finally, Combs' paralysis and cognitive brain damage represent the mechanical or structural changes in her body that resulted 282 from her injury. Thus, all the requirements of an "injury by accident" are present in this case. See Winn v. Geo. A. Hormel & Co., 252 Neb. 29, 560 N.W.2d 143, 149 (1997)(holding that negligent medical treatment at employer's first-aid medical facility may constitute "accident"). II. ARISING OUT OF EMPLOYMENT The phrase "arising out of" pertains to the origin or cause of an injury. County of Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74 (1989); Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938). In determining whether an injury arises out of employment, we have repeatedly quoted with approval the test enunciated in In re Employers' Liab. Assur. Corp., Ltd., 215 Mass. 497, 102 N.E. 697 (1913). An injury arises "out of" the employment, when there is apparent to the rational mind upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the	{ "pile_set_name": "FreeLaw" }
766 F.Supp.2d 797 (2011) In the Matter of the COMPLAINT OF PRIDE OFFSHORE, INC., as Owner of the J/U Pride Wyoming for Exoneration from, or Alternatively, Limitation of Liability. Civil Action No. H-08-3109. United States District Court, S.D. Texas, Houston Division. February 2, 2011. 798 MEMORANDUM AND ORDER LEE H. ROSENTHAL, District Judge. This maritime dispute arises out of damage allegedly caused when a jack-up rig, the PRIDE WYOMING, detached from its moorings during Hurricane Ike in September 2008. Pride Offshore, Inc.,[1] the rig owner, filed a complaint in exoneration or alternatively for limitation of liability, (Docket Entry No. 1), and Century Exploration New Orleans, Inc. filed a claim, (Docket Entry No. 47). Pride Offshore moved for summary judgment, arguing that the economic-loss rule precludes Century Exploration's claim. (Docket Entry No. 75). Century Exploration responded with a different theory and asked for leave to amend. (Docket Entry No. 77). Pride Offshore replied, arguing that this court should grant its motion for summary judgment and deny Century Exploration's motion to amend as futile. (Docket Entry No. 78). For the reasons explained below, this court grants Pride Offshore's motion for summary judgment, but to the extent the motion was based on a challenge to the sufficiency of the claim allegations, Century Exploration is granted leave to amend. An amended complaint must be filed by February 25, 2011. I. Background The PRIDE WYOMING was a 250-foot mat slot jack-up rig operating in the Gulf 799 of Mexico. (Docket Entry No. 1 ¶ 4). When Hurricane Ike struck in September 2008, the rig was located in Ship Shoal Block 283, about 90 miles south of Houma, Louisiana. (Id. ¶ 5). The hurricane blew the rig off its location, causing it to sink. (Id. ¶ 6). Parts of the PRIDE WYOMING's wreckage settled on top of pipelines belonging to The Williams Companies, Inc. and Tennessee Gas Pipeline Company (TGPS). (Id. ¶ 7). Pride Offshore filed this complaint on October 20, 2008. (Docket Entry No. 1). On August 18, 2009, Century Exploration filed its claim, alleging that part of the wreckage from the PRIDE WYOMING "struck and damaged pipelines that interfered with Century's operations and necessitated repairs. Century had property interests in one such pipeline and contributed to its repairs." (Docket Entry No. 47, ¶ 3). Century Exploration claimed approximately $21 million in damages "caused solely by, and ... wholly due to, the unseaworthiness of the J/U Pride Wyoming, the negligence of her master and crew, and the negligence of her owners and operators." (Id. ¶¶ 5-6). On January 11, 2010, Century Exploration amended to add allegations of recklessness and intentional misconduct. (Docket Entry No. 63 ¶ 5). Neither version of the claim alleged that Century Exploration was aware of Pride Offshore's contract to use the TGPC pipeline. Pride Offshore argues that summary judgment is appropriate for two reasons. The first is that Century Exploration's amended claim is insufficient because it fails to allege that Pride Offshore knew of Century Exploration's contract with TGPC. The second is that Century Exploration lacks evidence of a proprietary interest in the pipeline that would support economic-loss damages for negligence. II. Analysis A. The Legal Standards Pride Offshore's motion concerns the application of the Robins Dry Dock rule. In Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290 (1927), the Supreme Court overturned a verdict in favor of the plaintiffs for breach of contract based on damage to a third party's property. "Their loss arose only through their contract with the owners and while intentionally to bring about a breach of contract may give rise to a cause of action, no authority need be cited to show that, as a general rule, at least, a tort to the person or property of one man does not make the tort-feasor liable to another merely because the injured person was under a contract with that other unknown to the doer of the wrong." Id. at 308-09, 48 S.Ct. 134 (citations omitted). "Although criticized from time to time, Robins Dry Dock remains good law." Allders Int'l Ltd. v. United States, No. 94 CIV. 5689(JSM), 1995 WL 251571, 2 (S.D.N.Y. Apr. 28, 1995). "The Fifth Circuit continues to apply the Robins Dry Dock principle to most maritime cases, carving out an exception only for cases involving a collision between two vessels not in privity of contract." Norwegian Bulk Transport A/S v. Int'l Marine Terminals Partnership, 520 F.3d 409, 412 (5th Cir.2008) (citing Amoco Transport Co. v. S/S MASON LYKES, 768 F.2d 659 (5th Cir.1985)). "Since the Amoco Transport decision, the Fifth Circuit ... has not recognized exceptions to the rule in Robins Dry Dock outside of the context of collision cases." Id. at 413 (citations omitted). The first ground Pride Offshore asserts in moving for summary judgment rests on the sufficiency of Century Exploration's amended complaint. "[A] summary-judgment motion may be made on the basis of the pleadings alone, and if this is done it 800 functionally is the same as a motion to dismiss for failure to state a claim ...." 10A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2713, at 222-23 (3d ed. 1998) (citations omitted). A complaint may be dismissed under Rule 12(b)(6) for "failure to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), the Supreme Court confirmed that Rule 12(b)(6) must be read in conjunction with Rule 8(a), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Twombly abrogated the Supreme Court's prior statement in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." See Twombly, 550 U.S. at 562-63, 127 S.Ct. 1955 ("Conley's `no set of facts' language... is best forgotten as an incomplete, negative gloss on an accepted pleading standard...."). To withstand a Rule 12(b)(6) motion, a complaint must contain "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. 1955; see also Elsensohn v. St. Tammany Parish Sheriff's Office, 530 F.3d 368, 372 (5th Cir.2008) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). The Court explained that "the pleading standard Rule 8 announces does not require `detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). When a plaintiff's complaint fails to state a claim, the court should generally give the plaintiff at least one chance to amend the complaint under Rule 15(a) before dismissing the action with prejudice. See Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir.2002) ("[D]istrict courts often afford plaintiffs at least one opportunity to cure pleading deficiencies before dismissing a case, unless it is clear that the defects are incurable or the plaintiffs advise the court that they are unwilling or unable to amend in a manner that will avoid dismissal."); see also United States ex rel. Adrian v. Regents of the Univ. of Cal., 363 F.3d 398, 403 (5th Cir.2004) ("Leave to amend should be freely given, and outright refusal to grant leave to amend without a justification ... is considered an abuse of discretion." (internal citation omitted)). However, a plaintiff should be denied leave to amend a complaint if the court determines that "a proposed amendment ... clearly is frivolous, advancing a claim or defense that is legally insufficient on its face ...." 6 WRIGHT, MILLER & KANE § 1487, at 732-33; see also Ayers v. Johnson, 247 Fed.Appx. 534, 535 (5th Cir.2007) (un	{ "pile_set_name": "FreeLaw" }
202 F.2d 530 WOODWORKERS TOOL WORKSv.BYRNE. No. 13236. United States Court of Appeals Ninth Circuit. March 10, 1953. Tripp & Calloway, Los Angeles, Cal., for appellant. John W. Olson, Los Angeles, Cal., for appellee. Before STEPHENS, HEALY, and POPE, Circuit Judges. HEALY, Circuit Judge. 1 This action is for damages for personal injury sustained by appellee in consequence of the disintegration of an allegedly defective panel raiser head manufactured by appellant, an Illinois corporation, and shipped by it to appellee's employer in California, of which state appellee is a resident. A verdict awarding damages was returned and a judgment entered thereon. 2 On appeal from that judgment, Woodworkers Tool Works v. Byrne, 9 Cir., 191 F.2d 667, this court held with appellee on the merits. But a motion of appellant to quash the service of summons had been denied by the trial court, and we thought, 191 F.2d at pages 670-673, that the showing before the court at the time the motion was ruled on, going to the issue whether appellant had constituted one Preuer by law an agent in California to receive service of process on its behalf, was insufficient to warrant the denial. We noted, however, that during the course of the trial substantial oral evidence had been received tending to show the existence of the necessary agency relationship between appellant and Preuer, and we summarize this evidence, 191 F.2d at page 673; but it was further noted that the trial judge regarded the jurisdictional problem as having already been determined, hence had not taken the oral evidence into account except for such bearing as it might have on the merits. 3 We were of opinion that the issue of the validity of the service, inasmuch as it was one of due process, was open to further examination and that the evidence adduced on the trial might properly be considered as supplementing the original showing on that issue. We said, 191 F.2d at page 673, that "if there be added to the evidence which was before the court at the time of the denial of the motion to quash the service of the summons the evidence adduced at the trial, particularly that of Preuer hereinbefore referred to there might be a basis to sustain a conclusion that Woodworkers Tool Works had made Preuer its agent. This issue cannot be resolved without a finding thereon by the trier of fact and therefore upon remand it will be necessary for the court below to make an appropriate finding upon the present record." 4 After consideration and disposition of the remaining issues the court made the following order: "To the end that the court below may determine the question of whether the evidence now in the record is sufficient to sustain Byrne's contention that Woodworkers Tool Works made Woodworkers Supply Company, viz., Preuer, its agent for the service of process in California, we vacate the judgment and remand the cause with the direction to the court below to proceed to determine that issue. If the court determines the evidence of agency to be sufficient it will possess the authority to reinstate the judgment."1 5 Neither party petitioned for a rehearing. 6 Upon remand the trial court on the existing record made appropriate findings of fact as shown in the footnote,2 and concluded that at and prior to time of service appellant was doing business in California through Preuer as its agent, and had by law constituted him its agent in California to receive service of process in its behalf. The judgment was ordered reinstated. 7 From the reinstated judgment appellant has taken the present appeal, claiming that the evidence is insufficient to support the court's finding of agency. Is the point now open to inquiry? We think not. This court's original decision constitutes the law of the case. It clearly implied that on the evidence in the record the issue was one of fact for the trial court's determination, not one of law for ourselves. Had we deemed the evidence insufficient as a matter of law to support a finding of jurisdiction it would have been worse than an impertinence to remand the case for a finding. We would have been obliged to reverse the judgment outright. Nor, if we were in doubt whether on that evidence a finding of jurisdiction could be sustained by us, would we have thought it proper to undertake at that juncture the very considerable and perhaps wholly futile task of passing on the merits. Taking the opinion by its four corners we construe it as holding that the trial court's finding of fact was to be accepted as conclusive of the question of the validity of the service. 8 True, the rule we apply here is not a compulsive principle akin to res judicata. The phrase law of the case expresses rather the general practice of the courts to decline to reopen what they have already in effect decided. Messenger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 56 L.Ed. 1152. Cf. People of State of Illinois ex rel. Hunt v. Illinois Central R. Co., 184 U.S. 77, 91, 22 S.Ct. 300, 46 L.Ed. 440. The rule is grounded in large part on the policy of ending litigation, and in some instances on the want of power in an appellate court to modify its own judgments otherwise than on a rehearing. And it has been pointedly observed that if the practice were not followed, changes in the personnel of the court would produce confusion. Clary v. Hoagland, 6 Cal. 685; Oakley v. Aspinwall, 13 N.Y. 500, 501. For a comprehensive statement of the doctrine and for citations of the almost numberless cases bearing on it, see 5 C.J.S., Appeal and Error, § 1821 et seq.; 21 C.J.S., Courts, § 195 et seq. 9 Application of the doctrine in this instance would result in no injustice or hardship since a trial on the merits has already been had. 10 Affirmed. Notes: 1 The formal judgment entered by our clerk followed explicitly this language, and directed also an equal division of the costs of the appeal 2 "That Elmer Preuer is the sole proprietor of Woodworkers Supply Company; that defendant, Woodworkers Tool Works, a corporation, was engaged in selling its products in California through the agency of said Woodworkers Supply Company; that the panel raiser head involved in this action was sold to plaintiff's employer, Selby Company, in California by defendant through said Woodworkers Supply Company; that defendant had a running course of business every year and sold some of its items at all times in California through said Woodworkers Supply Company on a commission basis; that defendant's business of selling its products in California through the agency of said Woodworkers Supply Company was continuous and systematic; that said panel raiser head as well as other products of defendant sold in California were shipped by defendant company directly to the purchasers through orders received from Woodworkers Supply Company and paid for by purchasers through said Woodworkers Supply Company; that said Woodworkers Supply Company was the agent of defendant, Woodworkers Tool Works, as their identity of names implies."	{ "pile_set_name": "FreeLaw" }
J-A08035-19 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ERIK R. SURRATT : : Appellant : No. 469 WDA 2018 Appeal from the Judgment of Sentence Entered January 10, 2018 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0005355-2005, CP-02-CR-0005495-2005 BEFORE: PANELLA, P.J., STABILE, J., and McLAUGHLIN, J. MEMORANDUM BY McLAUGHLIN, J.: FILED JULY 26, 2019 Erik R. Surratt appeals from the judgment of sentence entered following a resentencing hearing pursuant to Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 136 S.Ct. 718 (2016). Surratt claims that in fashioning his sentence, the PCRA1 court erroneously considered him an adult, failed to consider whether he was capable of rehabilitation, and failed to consider the Miller factors. We affirm. Surratt was one of three individuals involved in a shooting that resulted in the death of two victims and one victim being wounded. Surratt shot one of the victims that died. Surratt was approximately 17 ½ years old at the time of the murders. A jury convicted Surratt of two counts of first-degree murder and other offenses. In 2008, the trial court sentenced Surratt to two life ____________________________________________ 1 Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. J-A08035-19 sentences without parole and 25 to 50 years’ incarceration for the remaining charges. This Court affirmed the judgment of sentence. In 2017, the PCRA court granted Surratt a resentencing, pursuant to Miller and Montgomery. At the resentencing hearing, Surratt presented five witnesses. One of the witnesses was a forensic social worker who testified to Surratt’s rehabilitation. Following two hearings, the PCRA court resentenced Surratt to 40 years’ incarceration to life imprisonment. Surratt filed a post-sentence motion which the trial court denied. This timely appeal followed. On appeal, Surratt raises the following issues: I. Whether the lower court erred and abused its discretion in imposing a 40-year minimum sentence because the Court failed to acknowledge or appropriately consider the factors laid out in Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 136 S.Ct. 718 (2016), in light of the diminished capabilities and greater prospects for reform of the adolescent offender. II. Whether the lower court erred and abused its discretion by placing excessive weight on the facts of the crime rather than focusing on Miller’s central question of whether the juvenile is capable of rehabilitation. The facts of the murder are not determinative in assessing permanent incorrigibility. III. Whether the lower court erred and abused its discretion by impermissibly considering Mr. Surratt to be an adult at the time of the offense, repeatedly referring the “arbitrary line” the U.S. Supreme Court had drawn between offenders under the age of 18 and those who are 18 and older. The Court does not have the discretion to make a finding contrary to the United States Supreme Court’s “legal conclusion[s] . . . and the facts (scientific studies) underlying it” when it concerns the inherent traits associated with adolescent development. See Commonwealth v. Batts, 163 A.3d 410, 437 (Pa. -2- J-A08035-19 2017). Because the Commonwealth failed to introduce any new evidence at the resentencing hearing, the Court also lacked competent evidence to make the aforementioned finding. Surratt’s Br. at 6-7. Surratt’s first two claims challenge discretionary aspects of his sentence. See Commonwealth v. White, 193 A.3d 977, 981 (Pa.Super. 2018) (concluding claims that trial court failed to consider Miller factors and did not consider rehabilitative evidence are challenges to discretionary aspects of sentence). As such, we must first determine whether: (1) the appeal is timely; (2) the issue is preserved; (3) appellant’s brief includes a Pa.R.A.P. 2119(f) statement; and (4) a substantial question is raised. See Commonwealth v. Battles, 169 A.3d 1086, 1090 (Pa.Super. 2017). Here, Surratt has satisfied the first three factors. We now address whether he has raised a substantial question. Surratt maintains that the PCRA court imposed an excessive sentence and failed to consider his mitigating factors. He claims that the PCRA court incorrectly “considered [him] an adult at the time of the crime, and focused on the life without parole sentences imposed on [his] adult co-defendants.” Surratt’s Br. at 14-15. He also maintains that the sentence imposed by the court is excessive for a crime that was committed by a juvenile and is “contrary to the fundamental norms underlying the sentencing process, and is inconsistent with the Sentencing Code.” Id. at 15. -3- J-A08035-19 Surratt’s claim of an excessive sentence paired with a claim that the court failed to consider his mitigating factors raises a substantial question. See Commonwealth v. Swope, 123 A.3d 333, 339 (Pa.Super. 2015). Therefore, we will address the merit of his claims. We review a challenge to discretionary aspects of sentencing for an abuse of discretion. See Commonwealth v. Derry, 150 A.3d 987, 997 (Pa.Super. 2016). An abuse of discretion exists where “the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill[-]will, or arrived at a manifestly unreasonable decision.” Id. (quoting Commonwealth v. Hoch, 936 A.2d 515, 517-18 (Pa.Super. 2007)). Surratt claims that the PCRA court “wholly failed to consider [his] individual, juvenile characteristics – focusing instead on the details of Surratt’s crime, improperly considering Surratt as an adult, and weighing the life sentences imposed on Surratt’s adult co-defendants.” Surratt’s Br. at 18. He argues it failed to consider his juvenile characteristics as referenced in Miller. To begin, the PCRA court was not required to consider the Miller factors. The Miller2 factors must be considered “when a juvenile is exposed to a potential sentence of life without the possibility of parole[.]” Commonwealth ____________________________________________ 2These factors include such things as “immaturity, impetuosity, and failure to appreciate risks and consequences; . . .” Batts II, 163 A.3d at 438 (quoting Miller, 567 U.S. at 477-78). -4- J-A08035-19 v. Machicote, 206 A.3d 1110, 1120 (Pa. 2019); see also Batts II, 163 A.3d at 432. Here, the Commonwealth did not seek a life-without-parole sentence, and thus, the court was not required to consider the Miller factors. Commonwealth v. Lekka, --- A.3d ---, 2019 WL 2064541, at *9 (Pa.Super. filed May 10, 2019) (“In cases where the Commonwealth does not seek a life- without-parole sentence, the application of the Miller factors is not required”). While Surratt maintains that the PCRA court improperly considered him an adult, we disagree. The PCRA court conceded it had to reconsider Surratt’s sentence pursuant to Miller and Montgomery because Surratt was under the age of 18 at the time of the murders. However, the court observed that the age of majority was somewhat arbitrary and concluded that, as Surratt was 17½ when he committed the murders, he was relatively mature, as demonstrated, in part, by his	{ "pile_set_name": "FreeLaw" }
486 So.2d 855 (1986) STATE of Louisiana v. Michael BURGE. No. 85 KA 0899. Court of Appeal of Louisiana, First Circuit. March 25, 1986. Rehearing Denied April 29, 1986. 857 Stephen L. Laiche and William B. Faust, III, Asst. Attys. Gen., New Orleans, for the State. J. Michael McDonald and David E. Stanley, Baton Rouge, for defendant. Before GROVER L. COVINGTON, C.J., and WATKINS and SHORTESS, JJ. WATKINS, Judge. Michael Burge was originally charged by a single grand jury indictment with three counts of first degree murder. Prior to trial on the merits, the indictment was amended to reduce each charge to second degree murder in violation of LSA-R.S. 14:30.1. Thereafter, defendant withdrew his former plea of not guilty and not guilty by reason of insanity and entered a plea of not guilty. Following trial by jury, defendnat was convicted on each count as charged by the amended indictment. The trial court sentenced defendant to a term of life imprisonment, without benefit of parole, probation, or suspension of sentence, on each count. The sentences for counts one and two are to be served consecutively to each other and to any other sentence defendant 858 is now serving. The sentence for count three is to be served concurrently. Defendant brings this appeal urging ten assignments of error: 1. The trial court erred in failing to suppress the confession of the defendant. 2. The trial court erred in failing to suppress inflammatory, prejudicial photographs. 3. The trial court erred in not granting a mistrial after two violations of its order of sequestration of witnesses. 4. The trial court erred in failing to grant a mistrial after the misconduct and harassment of defense witnesses by the state. 5. The trial court erred in failing to grant a mistrial after harassment by the state of the defendant. 6. The trial court erred in failing to grant a mistrial after improper conduct of the prosecution by referring to a nickname of the defendant in violation of court order. 7. The trial court erred in failing to grant a judgment of acquittal. 8. The trial court erred in failing to grant a mistrial or a new trial because of the cumulative prejudicial effect of the acts of the state and prosecution. 9. The trial court erred in failing to grant a mistrial or seat an alternate juror when a juror viewed the defendant shackled. 10. The trial court erred in admitting into evidence the autopsy report of Dr. Cavalier. It is conceded by defendant that, shortly after midnight on a Sunday night, he fatally stabbed Ricky Gray, Mark Vincent and Lester Allen with a knife fashioned from a sharpened file. A fourth individual, Darryl Washington, was also stabbed by defendant, but he survived.[1] At the time of the instant offenses, defendant and the victims were all inmates of Louisiana State Penitentiary at Angola, housed in Magnolia 3 dormitory. Magnolia 3 dormitory is a prison structure capable of housing sixty inmates, who sleep in one large room with their individual beds arranged side by side in several long rows. Prison personnel characterize the facility as an appropriate placement for an inmate who is not easily integrated into the general prison population. After making a formal request for protection because of difficulties encountered in another placement at Angola, defendant was moved to Magnolia 3 dormitory some six weeks before the stabbing incident occurred. Robert Shriver was already housed in that facility. Shriver and defendant, both white inmates, subsequently developed a homosexual relationship. Antagonism developed between defendant and Shriver and a group of several black inmates, which included the instant victims. One of those inmates, Larry Thomas, testified that he and Lester Allen broke the lock on Shriver's locker box during the Friday preceding the stabbing incident and stole several items. Larry Thomas admitted that defendant asked to have half of his and Shriver's things returned; however, Thomas was unwilling or unable to comply. Thomas maintains that defendant threatened to recover his property "one way or another." Warren Cain, an inmate who testified for the state, claims to have overheard a conversation among defendant, Shriver, Lester Allen and Mark Vincent during the afternoon immediately preceding the stabbing incident. Cain characterized Allen's and Vincent's response to defendant's request to have his property returned as one of indifference. Defendant was advised to seek return of his property whatever way he wanted. Defendant and defense witnesses, Al Bates and Aubrey Thompson, maintain that, when questioned about returning defendant's property, Lester Allen advised defendant to get a knife or "check out." However, defendant testified that he did not request a transfer from Magnolia 3 dormitory because he did not want to be separated from Shriver. Rather, defendant 859 retrieved a homemade knife from the prison recreation yard, brought it inside the dormitory, and hid it with his belongings. On Sunday night in Magnolia 3 dormitory, lights were turned off at 10:00 p.m.; and the dormitory television was turned off at midnight. All inmates were expected to be in bed by midnight. James Slaven, the correctional officer on duty when the stabbing incident occurred, made a head count at 12:30 a.m. Officer Slaven recalled that defendant, Shriver, and Warren Cain were all awake when that count was made. While Officer Slaven was in the shower room reporting his head count, four inmates were stabbed. When the lights were turned on, Officer Slaven observed defendant standing by his bed with a knife in his hand. Defendant's knife, in reality a sharpened file, was held in place by a glove or by gauze wrapped around his hand. No other weapons were found in the dormitory "shake down" following this incident. As defendant was escorted from the dormitory, he remarked to Captain John Purpera of the prison security staff, "I stabbed all four of them." Accounts of the stabbing incident differ greatly. Inmates Warren Cain and Mark Duhon testified that they saw defendant get out of his bed and proceed to stab Ricky Gray and Mark Vincent as they lay in bed. Gray occupied a bed immediately adjacent to defendant's bed. Vincent's bed was located on the other side of Gray's bed. While Gray and Vincent were being stabbed, Shriver went to Lester Allen's bed and hit Allen with a sock containing batteries. With Gray and Vincent immobilized, defendant went to Shriver's assistance. Defendant stabbed Allen and in the process disturbed Darryl Washington, who occupied the bed immediately adjacent to Allen's bed. Washington was stabbed several times but managed to grab a radio which he hurled against a post. Robert Shriver acknowledged that he had a sock filled with batteries and was also aware that defendant had brought a knife into the dormitory. He claims ignorance as to Ricky Gray's or Mark Vincent's role in the fight. Rather, Shriver contends that the fight began when Lester Allen approached his bed and said, "Come on and do something for me." In response to that proposition, Shriver got out of his bed, which was positioned end on end relative to defendant's bed, and struck Allen with the sock full of batteries. Defendant came to Shriver's assistance. Defendant's version of the incident is supported in part by the testimony of fellow inmates, Al Bates, Aubrey Thompson and Donald Fontenot. Defendant maintains that when Shriver and Allen first started arguing he put on a glove and placed the homemade knife in his left hand. Defendant denied utilizing any tape or gauze to wrap his hand. When defendant got up to help Shriver, he was attacked by Ricky Gray and Mark Vincent. Gray had a knife in his right hand, and Vincent appeared unarmed. Defendant grabbed Gray's right hand; and defendant, Gray and Vincent fell onto a bed. Defendant described his encounter with Gray and Vincent: "[W]e was kinda rassling (sic), all three of us on the bed, standing up, falling back down, and I was just stabbing." After Gray and Vincent were incapacitated, defendant intervened in the fight between Shriver and Allen. Defendant stabbed Allen "once or twice". Defendant did not know if Allen had a weapon. Defendant and Shriver were neither bruised nor cut as a result of the incident. Dr. Emile Laga performed autopsies on Ricky Gray and Mark Vincent. Dr. Laga noted that Gray had four stab wounds to the upper, left half of his body. One deep wound penetrated the front wall of his heart. No defensive injuries were found on Gray's extremities. Dr. Laga was certain that the assailant and Gray had been face to face when Gray was stabbed, and he hypothesized that Gray might have been in a supine position. Vincent suffered two stab wounds to his chest. Again, one wound penetrated the cardial sac, and Dr. Laga was certain that the assailant and Vincent had been face to face when Vincent was stabbed. 860 Dr. Debra Cavalier, who performed the autopsy of Lester Allen, noted two stab wounds, one positioned in the mid-abdomen and the other on Allen's right side. Allen also had two cuts on his face and a laceration on his forehead. Again, no defensive wounds were located on Allen's hand or forearms, and Dr. Cavalier opined that Allen and his assailant had been face to face during the attack. ASSIGNMENT OF ERROR NUMBER 1: By this assignment, defendant contends that the trial court erred by failing to suppress a written statement made by him. Defendant argues that his written statement was tainted because prior to making that statement he had been taken into custody and orally questioned about the incident without having been advised of	{ "pile_set_name": "FreeLaw" }
FILED United States Court of Appeals Tenth Circuit June 9, 2011 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court FOR THE TENTH CIRCUIT CLARENCE E. GRISSOM, JR., Plaintiff-Appellant, v. No. 10-3245 (D.C. No. 5:09-CV-03128-SAC) RAY ROBERTS, Warden, El Dorado (D. Kan.) Correctional Facility; DANIEL A. JACKSON, CSI, El Dorado Correctional Facility; (FNU) BOKOR, A.R.N.P., Correct Care Solutions, El Dorado Correctional Facility; GEORGE MCNICKLE, M.D., El Dorado Correctional Facility; DON THOMPKINS, El Dorado Correctional Facility; R. SHERMAN, CSII, El Dorado Correctional Facility; C. CASTLMAN, COII, El Dorado Correctional Facility, Defendants-Appellees. ORDER AND JUDGMENT * Before TYMKOVICH and BALDOCK, Circuit Judges, and BRORBY, Senior Circuit Judge. * After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Clarence E. Grissom, Jr., a Kansas state prisoner proceeding pro se, appeals from the dismissal of his civil rights action. We have jurisdiction under 28 U.S.C. § 1291 and affirm. I. BACKGROUND Mr. Grissom filed an action under 42 U.S.C. § 1983. The district court screened his form complaint and numerous other filings under 28 U.S.C. § 1915A and entered a screening order. In that order, the district court identified three claims in his form complaint: (1) use of excessive force on August 27, 2008, at the El Dorado Correctional Facility; (2) denial of medical care for injuries sustained during that incident; and (3) creation of a false disciplinary report to cover up the incident. These claims were based on the following allegations. Defendants Daniel A. Jackson and C. Castlman, both correctional officers, told Mr. Grissom to come to his cell door to be restrained while they removed his wheelchair. Mr. Grissom resisted the order, responded obscenely, and threw water at Officer Jackson. Officer Jackson, who knew that Mr. Grissom suffers from chronic obstructive pulmonary disease, used pepper spray on him. Officer Jackson then called a “Condition 30,” which resulted in the arrival of a team of correctional officers. Unidentified members of that team hit Mr. Grissom with an electric shield while he was in his wheelchair, then forcibly removed him from his cell and carried him -2- to the shower, where they held him under hot water. He sustained a broken nose and facial bruises. Thereafter, Mr. Grissom was laid down, his underwear was cut off, and he was rolled onto his side so that defendant Bokor, an advanced registered nurse practitioner (A.R.N.P.), could administer an albuterol inhaler. A.R.N.P. Bokor looked at his face but provided no treatment. The next day, both of his eyes were black and blue, and his right eye was swollen shut. He requested medical treatment but was denied. Later, Officer Jackson, Officer Castlman, and A.R.N.P. Bokor created an allegedly false disciplinary report to justify their actions, charging Mr. Grissom with battery and disobeying orders. Mr. Grissom was found guilty and given sixty days of disciplinary segregation, forty dollars in fines, and ninety days “‘L.G.T.’” R. at 167. 1 Based on these allegations, Mr. Grissom requested damages and the termination of defendants’ employment. In its screening analysis, the district court first concluded that it lacked power to order that any defendants be fired. The court also determined that Mr. Grissom’s request that he be permitted to use his wheelchair while in segregation, which was set forth in an attachment to his form complaint, was improperly joined, identified no named defendant, and stated no supporting facts. The court further concluded that for the same reasons, still other claims, scattered throughout the attachments to his complaint and other filings, were improperly 1 Apparently, “L.G.T.” means “loss of good time.” -3- raised. The court informed Mr. Grissom that it would not consider any claims referred to only in his attachments, and that instead, he must file an amended complaint in order to add claims or defendants; motions, exhibits, or other papers were not proper for that purpose. The court also provided him an overview of joinder under the Federal Rules of Civil Procedure. The district court then dismissed two defendants, Correct Care Solutions and the El Dorado Minimum Clinic, because neither was a “person” for § 1983 purposes, a necessary element of a § 1983 claim. Id. at 176 (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66, 71 (1989)). Further, the court pointed out that Mr. Grissom failed to adequately identify the personal participation of defendants Roberts, McNickle, Thompkins, or Sherman. See R. at 176 (citing, inter alia, Trujillo v. Williams, 465 F.3d 1210, 1227 (10th Cir. 2006)). Thus, the court gave Mr. Grissom an opportunity to file a supplemental complaint alleging the necessary participation. The district court also instructed Mr. Grissom that a supplemental complaint was necessary to correct other shortcomings in his pleadings. As to his excessive force claim, the court reasoned that Mr. Grissom’s own statements and exhibits showed that “he was combative, disruptive, and very disrespectful”; he refused to obey orders”; he “had a history of battering or attempting to batter correctional officers”; and he “refused to be restrained and had thrown a cup of water on Jackson.” R. at 179-80. “Under such circumstances,” the court -4- concluded, “the use of some physical force such as pepper spray can hardly be considered repugnant to the conscience of mankind.” Id. at 180. 1 Moreover, the court noted that Mr. Grissom had not alleged severe pain or lasting injury as a result of the pepper spray, as required under Sampley v. Ruettgers, 704 F.2d 491, 495 (10th Cir. 1983). Therefore, the court concluded, Mr. Grissom had not advanced sufficient factual allegations to show an Eighth Amendment violation based on Officer Jackson’s use of pepper spray or his call for a Condition 30. Turning to the physical injuries Mr. Grissom alleged were caused by the forced removal from his cell, the district court observed that he had not described acts by any specific defendant that caused those injuries. Rather, he alleged he was beaten by a team of correctional officers. Therefore, the court permitted him to file a supplemental complaint to provide additional factual allegations of personal participation by named defendants. The district court next concluded that Mr. Grissom’s allegations did not support his claim that he was denied medical treatment in violation of the Eighth Amendment. Mr. Grissom’s filings indicated that A.R.N.P. Bokor immediately gave him an albuterol inhaler and examined his broken nose and facial injuries. Mr. Grissom did “not describe any additional treatment as having been prescribed or obviously necessary for his broken nose or facial abrasions” or “any 1 The district court apparently drew this standard from a line of Supreme Court cases discussed in Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). -5- ‘substantial harm’ suffered as a result of any delay in treating	{ "pile_set_name": "FreeLaw" }
165 Pa. Commonwealth Ct. 573 (1994) 645 A.2d 474 BOROUGH OF KENNETT SQUARE v. Amrit LAL, Appellant. Commonwealth Court of Pennsylvania. Submitted on Briefs June 6, 1994. Decided July 8, 1994. Reargument Denied August 17, 1994. 577 Thomas R. Kellogg, for appellant. John L. Hall, for appellee. Before COLINS and PELLEGRINI, JJ., and NARICK, Senior Judge. NARICK, Senior Judge. Appellant, Amrit Lal, appeals from an order of the Court of Common Pleas of Chester County, sitting in equity, ordering injunctive relief and appointing an agent for Appellant to manage Appellant's apartment complex known as "Scarlett Manor Apartments," in order to bring it into compliance with the Borough of Kennett Square's (Borough) housing and building codes. This matter commenced in February, 1993 when the Borough filed this action in an effort to bring an end to almost five years of continuous litigation with Appellant. From the time Appellant purchased Scarlett Manor Apartments, in March 1988, when they were apparently in a good state of repair and free of any Housing Code (Code) violations, until December 1993, Appellant was cited for more than 160 Code violations, and the Borough had spent more than $40,000.00 in attorney's fees in this effort to compel Appellant's compliance. As noted by the trial court judge, The Honorable Thomas J. Gavin, who had personally heard more than one hundred (100) cases involving Appellant's rental real estate, "[Appellant] is the 578 single most litigious person in the history of Chester County."[1] (T.C. Opinion at 5, December 8, 1993.) According to the trial court, Appellant's obstructive conduct usually conformed to the following pattern: Following inspections, the borough would communicate deficiencies to the defendant and suggest that he contact the borough regarding the resolution of same. Several months would pass, often with another intervening inspection, but no corrective action taken. More letters would be generated and ultimately defendant would agree to remedy the deficiencies by a date certain. It is important to note that the defendant was always given leeway to select a date by which the repairs, or deficiencies, would be corrected. The corrective date would come and go with no action by defendant, whereupon the borough would issue citations. Hearings would then be scheduled before the district court (District Court 15-3-04) where the defendant would or would not appear to defend. Whether found guilty by the District Justice or in absentia, an automatic appeal would be taken to the Court of Common Pleas. By the time the cases found their way to my courtroom the deficiencies, which would now be months if not years old, remained uncorrected. In each case numerous pre-trial motions would be filed, often on the day scheduled for trial, asserting that the court lacked jurisdiction, was biased against the defendant, that the borough was discriminating against defendant because of his third world origin, etc. etc. Ultimately the cases would be heard, appropriate verdicts rendered and plaintiff advised that if the repairs were corrected pre-imposition of sentence, nominal fines would be imposed. Invariably, post-verdict motions would be filed, no corrections made and the defendant sentenced accordingly. Thereafter, motions to vacate sentence and/or appeals would be filed with the deficiencies still uncorrected. The deficiencies 579 cited by the borough, by way of example and not limitation, run the gamut from countless vectors (a polite euphemism for cockroaches) scurrying about the apartments to defective and/or leaking and/or missing plumbing fixtures, lighting fixtures that do not work, windows with broken or missing panes, or screens, loose or missing balcony railings, leaking roofs and trash strewn about the properties. (T.C. Opinion at 2-3, December 8, 1993). As a result of this delay and vexatious conduct, the Borough filed a complaint asking for the extraordinary remedy of appointment of an agent to manage the apartments and correct the Code violations. In response, Appellant filed preliminary objections which were denied, and Appellant was given leave to file an answer to the Borough's complaint within twenty (20) days. Appellant failed to file an answer within the time allowed, and instead appealed the trial court's denial of his preliminary objections, via a petition for review, to this court. Appellant's petition to vacate Judge Gavin's order denying his preliminary objections was denied by Judge MacElree of the Chester County Court of Common Pleas. Appellant was notified that a default judgment would be taken if he did not file an answer within ten (10) days, and when such answer was not filed, a default judgment was entered and a final hearing to frame an appropriate final decree was scheduled. The final hearing concluded on November 19, 1993, which resulted in the appointment of an agent to manage the apartment buildings in order to correct the problems and bring them into compliance with the Borough's ordinances. Meanwhile, Appellant's legal maneuverings continued with, inter alia, a petition to quash the Borough's request for a final hearing to fashion an appropriate final decree, a petition for recusal of Judge Gavin or transfer to another county, continuing requests for production of documents after a protective order had been granted, and a motion to disqualify the court's appointed agent. On appeal to this Court, Appellant raises eleven issues for our review, three of which have been waived by failure to 580 raise them in post-trial motions.[2] Pa.R.C.P. No. 227.1(b)(2); Estate of Hall, 517 Pa. 115, 535 A.2d 47 (1987); Borough Council for Borough of Millbourne v. Bargaining Committee of Millbourne Borough Police, 109 Pa.Commonwealth Ct. 474, 531 A.2d 565 (1987). We will therefore consider the remaining issues on their merits. First, Appellant argues that Judge Gavin should have recused because of animosity to Appellant. Judge Gavin denied the motion stating that his actions do not evince any bias towards Appellant. (T.C. Opinion at 2, December 17, 1993.) Like his post-trial motions, Appellant's brief on appeal contains repetitive, generalized, boilerplate allegations of bias and prejudice, but he only indicates one instance which he believes shows the court's animosity, Judge Gavin's threat to hold Appellant in contempt for continuing to cross-examine a witness, Mr. Marguriet, on irrelevant matters. (R. at 50a.) The record indicates that the first questions Appellant asked on cross-examination of Mr. Marguriet, the Manager and Code Enforcement Officer of the Borough, concerned the deeds of properties owned by other landowners, and a case pending against a property owner in the Borough. These questions were clearly irrelevant, and such was Judge Gavin's ruling. Yet, Appellant continued to ask irrelevant questions, until he repeated some he had attempted to ask earlier, and at that point, Judge Gavin warned Appellant to cross-examine only on relevant issues, or risk a contempt citation. (R. 40a-50a.) Judge Gavin remained remarkably patient while Appellant asked one irrelevant question after another, but his repeated rulings were ignored. His warning was therefore warranted, and his threatened use of his contempt powers was entirely proper. 581 In this jurisdiction, it is presumed that a trial judge is capable of recognizing in himself/herself the symptoms of bias and prejudice. If the judge believes that he or she can hear and dispose of the case without partiality, then that decision will not be overturned, absent an abuse of discretion. Reilly by Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 489 A.2d 1291 (1985); Commonwealth v. Knight, 421 Pa.Superior Ct. 485, 618 A.2d 442 (1992). Here, there was no abuse of discretion in warning Appellant that he would be in contempt of court if he continued to ask totally irrelevant questions. Therefore, there is no merit to Appellant's claim that Judge Gavin should have recused. Next, Appellant claims that the enforcement of the Borough's ordinances was discriminatory against the low income groups which reside in Scarlett Manor and against Appellant, who claims to be a "member of a minority group, being an Asiatic Indian." Appellant not only failed to prove that there was discriminatory enforcement of the Building Code, but has failed to allege any facts which, if true, would support this claim. Township of Ridley v. Pronesti, 431 Pa. 34, 244 A.2d 719 (1968); Harasty v. Borough of West Brownsville, 50 Pa.Commonwealth Ct. 186, 412 A.2d 688 (1980). We will not recapitulate the facts of this case, but suffice to say that the Borough's ordinances were enforced against Appellant because Appellant had violated these ordinances numerous times, there had been numerous complaints by the tenants and others, and because Appellant engaged in every delaying tactic he knew, including abusing his legal rights, to resist abating the conditions for which he was cited and avoid complying with minimal standards of habitability. (Plaintiff's Exhibit 1 and 3.) Therefore, we find no merit to this argument. Next, Appellant claims that the court erred in entering a final order in this case before the receipt and consideration of post-trial motions. Pa.R.C.P. No. 227.1. Appellant relies on Reading Anthracite Co. v. Rich, 525 Pa. 118, 577 A.2d 881 (1990), where an adjudication and decree nisi were entered which ordered the convening of a meeting within ten (10) days 582 of entry of the final order, and also invited the parties to	{ "pile_set_name": "FreeLaw" }
244 F.Supp.2d 1250 (2003) HORIZON HOLDINGS, L.L.C. f/k/a Horizon Marine L.C.; Geoffrey Pepper; Cassandra O'Tool; and John O'Tool; Plaintiffs, v. GENMAR HOLDINGS, INC.; Genmar Industries, Inc.; and Genmar Manufacturing of Kansas, L.L.C, Defendants. No. 01-2193-JWL. United States District Court, D. Kansas. February 11, 2003. 1255 Floyd R. Finch, Jr., Blackwell Sanders Peper Martin LLP, George A. Hanson, Stueve Helder Siegel LLP, Kansas City, MO, Nicole T. Bock, Blackwell Sanders Peper Martin LLP, Omaha, NE, Todd M. McGuire, Stueve Helder Siegal LLP, Kansas City, MO, for Plaintiffs. Harlan D. Burkhead, Lathrop & Gage L.C., Kansas City, MO, Holly S.A. Eng, Judith Williams-Killackey, Thomas Tinkham, Dorsey & Whitney LLP, Minneapolis, MN, Rosalee M. McNamara, Tedrick A. Housh, III, Timothy K. McNamara, Lathrop & Gage L.C., Kansas City, MO, for Defendants. MEMORANDUM & ORDER LUNGSTRUM, District Judge. Plaintiffs filed suit against defendants asserting various claims arising out of defendants' acquisition of plaintiff Horizon Marine LC, an aluminum boat manufacturing company. Specifically, plaintiffs Horizon Holdings, LLC f/k/a Horizon Marine LC (hereinafter "Horizon") and Geoffrey Pepper claimed that defendants breached both the express terms of the purchase agreement entered into between the parties and the duty of good faith and fair dealing implied in the purchase agreement. Plaintiffs Horizon and Mr. Pepper further claimed that defendants made a variety of fraudulent misrepresentations to them for the purpose of inducing plaintiffs to enter into the purchase agreement. In addition, plaintiffs Cassandra O'Tool and John O'Tool alleged that defendants breached the employment agreements signed by them. Ms. O'Tool further alleged that defendants discriminated against her on the basis of her pregnancy when they denied her a raise and when they terminated her employment. Finally, Ms. O'Tool and Mr. Pepper claimed that defendants unlawfully terminated their employment in retaliation for Ms. O'Tool's and Mr. Pepper's complaints of pregnancy discrimination. For a more thorough understanding of the facts of this case, please see the court's order resolving defendants' motions for summary judgment, Horizon Holdings, L.L.C. v. Genmar Holdings, Inc., 241 F.Supp.2d 1123 (D.Kan.2002). In November 2002, plaintiffs' claims were tried to a jury and, at the conclusion of the trial, the jury returned a verdict in favor of plaintiffs Horizon and Mr. Pepper on their breach of contract claim in the amount of $2,500,000. The jury also found in favor of the O'Tools on their claims that defendants breached the O'Tools' employment contracts and awarded Ms. O'Tool the sum of $63,200 and Mr. O'Tool the sum of $20,313. The jury found in favor of defendants on all other claims. This matter is presently before the court on three post-trial motions-plaintiffs' motion to alter or amend the judgment (doc. # 197); plaintiffs' motion for attorneys' fees, costs and expenses (doc. # 198); and defendants' renewed motion for judgment as a matter of law pursuant to Rule 50(b) or, in the alternative, motion for remittitur 1256 and/or new trial pursuant to Rule 59 (doc. # 199). As set forth in more detail below, plaintiffs' motion to alter or amend the judgment is granted only to the extent that a typographical error in the judgment will be corrected and is otherwise denied; plaintiffs' motion for attorneys' fees, costs and expenses is granted in part and denied in part; and defendants' renewed motion for judgment as a matter of law, for remittitur and/or for a new trial is denied. I. Defendants' Renewed Motion for Judgment as a Matter of Law, for Remittitur and/or for New Trial Defendants seek post-trial relief on all aspects of the jury's verdict that are favorable to plaintiffs. The primary thrust of defendants' post-trial motion concerns the jury's verdict of $2.5 million in favor of Horizon and Mr. Pepper on the breach of contract claim. According to defendants, this award constitutes a windfall unsupported by the facts or the law. Defendants urge that plaintiffs, as a matter of law, are not entitled to recover any damages in the form of lost earn-out. In the alternative, defendants contend that the award must be remitted or a new trial must be granted on lost earn-out damages. Defendants also seek judgment as a matter of law on the jury's liability finding on the breach of contract claim, asserting that plaintiffs failed to present legally sufficient evidence that defendants breached the express or implied terms of the purchase agreement. Similarly, defendants move for judgment as a matter of law on the O'Tools' claims for breach of their respective employment agreements or for a remittitur of those verdicts. Finally, defendants assert that they are entitled to a new trial because the court erroneously admitted parol evidence and erroneously instructed the jury on the duty of good faith and fair dealing. A. The Jury's Verdict in favor of Plaintiffs Horizon and Geoff Pepper on their Breach of Contract Claim The court first addresses defendants' argument that they are entitled to judgment as a matter of law on the jury's liability finding with respect to Horizon and Mr. Pepper's breach of contract claim. Judgment as a matter of law under Rule 50(b) "should be cautiously and sparingly granted," Black v. M & W Gear Co., 269 F.3d 1220, 1238 (10th Cir.2001), and is appropriate only if the evidence, viewed in the light most favorable to the nonmoving party, "points but one way and is susceptible to no reasonable inferences supporting the party opposing the motion." Sanjuan v. IBP, Inc., 275 F.3d 1290, 1293 (10th Cir.2002). In determining whether judgment as a matter of law is proper, the court may not weigh the evidence, consider the credibility of witnesses, or substitute its judgment for that of the jury. See Turnbull v. Topeka State Hosp., 255 F.3d 1238, 1241 (10th Cir.2001). In essence, the court must affirm the jury verdict if, viewing the record in the light most favorable to the nonmoving party, it contains evidence upon which the jury could properly return a verdict for the nonmoving party. See Roberts v. Progressive Independence, Inc., 183 F.3d 1215, 1219-20 (10th Cir.1999) (citing Harolds Stores, Inc. v. Dillard Dep't Stores, Inc., 82 F.3d 1533, 1546 (10th Cir.1996)). Conversely, the court must enter judgment as a matter of law in favor of the moving party if "there is no legally sufficient evidentiary basis ... with respect to a claim or defense ... under the controlling law." Deters v. Equifax Credit Information Servs., Inc., 202 F.3d 1262, 1268 (10th Cir. 2000) (quoting Harolds, 82 F.3d at 1546-47). In their papers, defendants assert that, as a matter of law, they did not breach the express terms of the purchase *1257 agreement or the implied terms of the purchase agreement. The jury was instructed that they could find in favor of plaintiffs on plaintiffs' breach of contract claim if they found that plaintiffs had proved a breach of one or more express terms or a breach of the implied duty of good faith and fair dealing. See Jury Instruction 12. Because the court concludes that there was ample evidence presented at trial to support a finding that defendants breached the implied covenant of good faith and fair dealing, the court declines to address defendants' arguments concerning whether the evidence was sufficient to support a finding that defendants had breached any express terms of the purchase agreement. According to defendants, plaintiffs' claim for breach of the implied covenant of good faith and fair dealing fails as a matter of law because it purports to "add wholly new terms to the contract" and "requires the court to rewrite or supply omitted provisions to the purchase agreement in contravention of Delaware law." [1] This is, of course, an accurate statement of Delaware law. See, e.g., Cincinnati SMS A Limited Partnership v. Cincinnati Bell Cellular Systems Co., 708 A.2d 989, 992 (Del. 1998) ("Delaware observes the wellestablished general principle that ... it is not the proper role of a court to rewrite or supply omitted provisions to a written agreement."). Nonetheless, principles of good faith and fair dealing permit a court to imply certain terms in an agreement so as to honor the parties' reasonable expectations when those obligations were omitted, in the literal sense, from the text of the written agreement but can be understood from the text of the agreement. Id. In determining whether to imply terms in an agreement, the proper focus is on "what the parties likely would have done if they had considered the issue involved." Id. Nothing in this court's instructions to the jury would have permitted the jury to "rewrite" the purchase agreement or to inject into that agreement wholly new terms. In fact, the jury was instructed, entirely consistent with Delaware law, that they should consider "whether it is clear from what was expressly agreed upon by the parties that the parties would have agreed to prohibit the	{ "pile_set_name": "FreeLaw" }
320 F.3d 691 UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant,v.John SERPICO and Gilbert Cataldo, Defendants-Appellants, Cross-Appellees. No. 02-1702. No. 02-1726. No. 02-1925. United States Court of Appeals, Seventh Circuit. Argued October 31, 2002. Decided February 20, 2003. COPYRIGHT MATERIAL OMITTED David A. Glockner (argued), Office of U.S. Attorney, Crim. Div., Chicago, IL, for U.S. Matthias A. Lydon (argued), Winston & Strawn, Chicago, IL, for John Serpico. Jeffrey Schulman (argued), Wolin & Rosen, Chicago, IL, Donald Hubert, Hubert, Fowler & Quinn, Chicago, IL, for Gilbert Cataldo. Before RIPPLE, MANION, and EVANS, Circuit Judges. TERENCE T. EVANS, Circuit Judge. 1 For 12 years, John Serpico and Maria Busillo held and abused various influential positions with the Central States Joint Board ("CSJB"), a labor organization that provides support to its member unions. Among other responsibilities, Serpico and Busillo controlled the management of the unions' money. The pair, along with longtime friend and business associate Gilbert Cataldo, collaborated on three schemes involving the misappropriation of the unions' funds. Two of those schemes are the focus of this appeal by Serpico and Cataldo (Busillo has not appealed her conviction). 2 In their "loans-for-deposits" scheme, Serpico and Busillo deposited large sums of union money in various banks. In exchange, the two received overly generous terms and conditions on personal loans totaling more than $5 million. In the more complicated hotel loan kickback scheme, several groups entered into the 51 Associates Limited Partnership, which planned to construct a hotel. The partnership was unable to obtain financing for the construction of the building without first securing a commitment for a mortgage loan that would guarantee repayment of the construction loan after the hotel was built. Serpico used union funds to make a mortgage loan to the developers, after which Mid-City Bank agreed to make the construction loan. In exchange for Serpico's help in securing the loan, 51 Associates paid $333,850 to Cataldo's corporation, Taylor West & Company, for "consulting services" that Cataldo never actually performed. Cataldo then kicked back $25,000 to Serpico by paying Serpico's share of a $50,000 investment into an unrelated business project (the Studio Network project) in which the two were partners. 3 Serpico, Busillo, and Cataldo were tried on charges of racketeering, mail fraud, and bank fraud. At the close of the evidence, the court granted motions by Serpico and Busillo for acquittal on the racketeering and bank fraud counts. The jury convicted Serpico and Busillo on mail fraud charges relating to the loans-for-deposits scheme and Serpico and Cataldo on mail fraud charges for the hotel loan kickback scheme. 4 At sentencing, the district court determined that Serpico and Cataldo were each responsible for a loss of $333,850, the amount paid to Cataldo, for the hotel loan kickback scheme. For the loans-for-deposits scheme, the court found the damage to the unions to be equal to the additional amount of interest the union assets would have earned had Serpico purchased CDs at banks offering the highest interest rates instead of those offering him special deals on his personal loans. The court totaled loans from Capitol Bank as well as six others, estimating the loss to be between $30,000 and $70,000. The court thus increased Serpico's base offense level of 6 by 9 levels, plus 2 levels for more than minimal planning and 2 levels for abuse of trust (19 total). Serpico and Cataldo were sentenced to 30 and 21 months in prison, respectively. 5 Serpico and Cataldo (collectively "Serpico" as we go forward) appeal, challenging the verdicts and the application of the sentencing guidelines on a number of grounds. In its cross-appeal, the government also contests the application of the sentencing guidelines. 6 First, Serpico argues that his convictions should be overturned because his schemes did not "affect" a financial institution. The 5-year statute of limitations for mail and wire fraud offenses under 18 U.S.C. § 3282 is extended to 10 years "if the offense affects a financial institution," 18 U.S.C. § 3293(2), and Serpico could not have been prosecuted without that extension. Serpico claims that an offense only "affects a financial institution" if the offense has a direct negative impact on the institution. The district court instructed the jury that the schemes affected the banks if they "exposed the financial institution[s] to a new or increased risk of loss. A financial institution need not have actually suffered a loss in order to have been affected by the scheme." 7 Although Serpico agreed to the jury instruction, he now points to United States v. Agne, 214 F.3d 47, 53 (1st Cir.2000) and United States v. Ubakanma, 215 F.3d 421, 426 (4th Cir.2000), to support his claim that the financial institution must suffer an actual loss. In Agne, however, the court found that the bank "experienced no realistic prospect of loss," so it did not have to reach the question of whether the bank must suffer an actual loss. Agne, 214 F.3d at 53. Similarly, Ubakanma simply held that "a wire fraud offense under section 1343 `affected' a financial institution only if the institution itself were victimized by the fraud, as opposed to the scheme's mere utilization of the financial institution in the transfer of funds." Ubakanma, 215 F.3d at 426. Neither side here argues that "mere utilization" is sufficient; the question is whether an increased risk of loss is enough, even if the institution never suffers an actual loss. 8 Several courts, including this one and the Fourth Circuit, which produced Ubakanma, have concluded that an increased risk of loss is sufficient in similar contexts. See, e.g., United States v. Longfellow, 43 F.3d 318, 324 (7th Cir.1994) (quoting United States v. Hord, 6 F.3d 276, 282 (5th Cir.1993) ("risk of loss, not just loss itself, supports conviction" for bank fraud)); United States v. Colton, 231 F.3d 890, 907 (4th Cir.2000); see also Pattern Criminal Federal Jury Instructions for the Seventh Circuit (1990), p. 217 (The mail interstate carrier wire fraud statute "can be violated whether or not there is any [loss or damage to the victim of the crime] [or] [gain to the defendant]."). 9 More importantly, the whole purpose of § 3293(2) is to protect financial institutions, a goal it tries to accomplish in large part by deterring would-be criminals from including financial institutions in their schemes. Just as society punishes someone who recklessly fires a gun, whether or not he hits anyone, protection for financial institutions is much more effective if there's a cost to putting those institutions at risk, whether or not there is actual harm. Accordingly, we find no error in the district court's jury instruction. 10 Serpico next argues that, even if the district court correctly interpreted § 3292(2), his schemes did not "affect" a financial institution because they did not create increased risks for the banks involved in the schemes. Essentially, Serpico claims that the banks in both schemes were willing participants who would not have chosen to participate unless it was in their best interests (that is, factoring in the risks, they expected to make money on the deals). But the mere fact that participation in a scheme is in a bank's best interest does not necessarily mean that it is not exposed to additional risks and is not "affected," as shown clearly by the various banks' dealings with Serpico. 11 For example, the hotel loan kickback scheme affected Mid-City even though Mid-City believed it would make money on the deal. Mid-City made a $6.5 million construction loan, one it obviously would not have made if it believed the risks associated with the loan outweighed the expected payoff. But the loan, as all loans do, did carry some risk. Since Mid-City did not want to be a long-term real estate lender, it agreed to the loan only after Serpico misappropriated Midwest Pension Plan ("MPP") funds in making the MPP's $6.5 million end-mortgage loan (which meant that, if all went well, Mid-City would quickly be repaid). Therefore, Mid-City never would have been exposed to the risks of its loan absent Serpico's scheme because it never would have made the loan. 12 Serpico responds that MPP's $6.5 million essentially guaranteed the loan, so there was no risk to Mid-City. But, under the terms of the loan, if the hotel was not completed on time and under budget, the money MPP put up would be returned to it. That would leave Mid-City with a risky long-term loan it didn't want. On top of that, the kickback scheme increased the chances that the project would	{ "pile_set_name": "FreeLaw" }
313 F.Supp. 337 (1970) Margaruite J. BRANCH, Plaintiff, v. Robert H. FINCH, Secretary of Health, Education and Welfare, Defendant. Civ. A. No. T-4561. United States District Court, D. Kansas. April 22, 1970. 338 339 340 Reginald LaBunker, Topeka, Kan., for plaintiff. Robert J. Roth, U. S. Atty., Elmer Hoge, Asst. U. S. Atty., Topeka, Kan., for defendant. MEMORANDUM OF DECISION TEMPLAR, District Judge. This proceeding was instituted by plaintiff against the Secretary of Health, Education and Welfare as is authorized by and pursuant to Section 205(g) of the Social Security Act, 42 U. S.C. § 405(g), for the purpose of obtaining a judicial review of a final decision of the Secretary denying her application for disability insurance benefits under Sections 216(i) and 223 of the Act, 42 U.S.C. § 416(i) and 423. An affidavit being filed, this Court, on April 25. 1969, entered an order granting plaintiff leave to sue forma pauperis without securing costs. Both parties in this action have submitted motions for summary judgment together with briefs to support their respective positions. The plaintiff filed her application to establish a period of disability on February 28, 1968, as provided in Section 416(i), and for disability insurance benefits, as provided under Section 423 of the Act. Claimant alleged, in substance, that she became unable to work because of a badly sprained back on September 23, 1967. The application was denied initially and on reconsideration. On December 11, 1968, a hearing was conducted before the hearing examiner of the department, at which the plaintiff was present without an attorney. The hearing examiner filed his decision denying plaintiff's application on December 30, 1968. The appeals Council upheld the decision of the hearing examiner upon the plaintiff's request for review. The hearing examiner's decision became the final decision of the Secretary of Health, Education and Welfare. The claimant will meet the earnings requirement until June 30, 1972. The hearing examiner determined that, in view of the claimant's limited education and age, training for sedentary work would not be profitable for her. In his determination that the claimant is not entitled to a period of disability or to disability insurance benefits, the hearing examiner made the following findings: "FINDINGS OF FACT "1. The claimant is approximately 59 years of age and she has an eighth grade education. "2. The claimant has worked as a laundry worker, waitress, maid, and nurse's aide. "3. In September 1967 the claimant began to suffer from back pain and she was treated for the condition at St. Francis Hospital, Topeka, Kansas. "4. Orthopedic examination of the claimant's back in May 1968 resulted in a diagnosis of mild musculoligamentous strain residuals with underlying mild lumbar degenerative joint disease. "5. The claimant has not attempted to secure work since leaving her employment with the A. T. & S. F. Hospital, Topeka, Kansas, in 1967. "6. While the claimant's back condition has possibly prevented her from returning to work as a maid, she has not been prevented from working as a waitress, laundry helper, or nurse's aide for a period of twelve months or more and she is currently able to engage in this type of activity. "CONCLUSION OF LAW "The claimant has not been prevented from engaging in substantial, gainful activity for a period of twelve months 341 or more at any time prior to the date of this decision and she is presently able to work as a waitress, laundry helper, or nurse's aide." (Record P. 9, 10). The primary issue before this Court is whether or not there is substantial evidence to support the Secretary's decision that plaintiff was not entitled to a period of disability or to disability insurance benefits and specifically whether plaintiff has been unable to engage in substantial gainful activity by reason of a medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than 12 months. The definition of disability set forth in § 423(d) (1) provides: "(d) (1) The term `disability' means (A) inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months * * ." "(2) For purposes of paragraph (1) (A) (A) an individual * * shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. * * " * * * * * "(3) For purposes of this subsection, a `physical or mental impairment' is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." * * * * * * "(5) An individual shall not be considered to be under a disability unless he furnishes such medical and other evidence of the existence thereof as the Secretary may require." The word "any" as used in the phrase "any substantial gainful activity" must be read in light of what is reasonable and not what is merely conceivable. See Huneycutt v. Gardner, 282 F.Supp. 405 (M.D.N.C.1968). This Court recognizes that judicial review of final decisions of the Secretary is a defined and limited one. See Folsom v. O'Neal, 250 F.2d 946 (10th Cir. 1957); Gordon v. Celebrezze, 253 F.Supp. 779 (D.Kan.1965); Jones v. Celebrezze, 246 F.Supp. 701 (D.Kan. 1965); and Shonk v. Gardner (Templar, J., No. T-4354, unreported). The Court pointed out in Gardner v. Bishop, 362 F.2d 917, 919 (10th Cir. 1966), that findings of fact by the Secretary and the inferences drawn from such findings should not be disturbed by a reviewing court, "if there is substantial evidence to support them. Substantial evidence has been defined as `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Stated in a different manner the evidence must be such, if the trial were to a jury, as would justify a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury. If there is only a slight preponderance of the evidence on one side or the other, the Secretary's finding should be affirmed. See Underwood v. Ribicoff, 298 F.2d 850, 851 (4th Cir. 1962). This Court is aware of the principle that the Act should be construed liberally in favor of a party seeking its benefits. See Davidson v. Gardner, *342 370 F.2d 803 (6th Cir. 1966); Dvorak v. Celebrezze, 345 F.2d 894 (10th Cir. 1965); and Ketcherside v. Celebrezze, 209 F.Supp. 226 (D.Kan.1962). It is clear that a court is not to try a case de novo and that it must not abdicate its traditional function to scrutinize the entire record in order to determine whether the conclusions made by the Secretary are rational and if the court should determine that reliance has been placed upon one portion of the record in disregard of overwhelming evidence to the contrary, then the court is bound to modify or reverse the Secretary's findings with or without remanding the case for rehearing. See Thomas v. Celebrezze, 331 F.2d 541 (4th Cir. 1964) and Burrell v. Finch, 308 F.Supp. 264 (D. Kan.1969). The plaintiff's age, education, training, experience, and physical and mental capabilities are of considerable importance in determining her rights to disability benefits under the Act. See Ellerman v. Flemming, 188 F.Supp. 521 (D.Mo.1960) and Aniol v. Flemming, 188 F.Supp. 233 (D.Kan.1960). The record discloses that claimant resides at 627 W. 17th Topeka, Kansas, has a seventh grade education, and was approximately 59 years of age at the time of the hearing. There is some discrepancy as to the level of education attained by the claimant. Although the hearing examiner found that the claimant had an eighth grade education, the claimant testified that she had finished the seventh grade. In her request for reconsideration (Record P. 67) the claimant stated that she had only an eighth grade education, and Dr. Miller made reference to the eighth grade in one of his reports (Record P. 51). The claimant testified that she is married, but separated, and has eight children living. (Record P. 21). The claimant's past work record may be summarized as follows: waitress for a number of years; nurse's aide; worked for a laundry as an ironer; and worked as a	{ "pile_set_name": "FreeLaw" }
638 So.2d 176 (1994) Vickie BROADWAY and Husband Michael E. Broadway, Appellants, v. BAY HOSPITAL, INC., d/b/a HCA Gulf Coast Hospital, Appellee. No. 92-2337. District Court of Appeal of Florida, First District. June 14, 1994. Edmund D. Quintana of Burke & Blue, P.A., Panama City, for appellants. Ann J. Tipton of Baker, Duke & Tipton, P.A., Pensacola, for appellee. *177 PER CURIAM. This cause is before us on appeal from a final order dismissing appellants' second amended complaint with prejudice. Appellants contend (1) that the trial court erred in finding that they were required to comply with the presuit screening requirements of chapter 766, Florida Statutes, for medical malpractice claims; (2) that their compliance with the presuit screening requirements was sufficient such that the trial court erred in dismissing their complaint; and (3) that section 766.203(2), Florida Statutes, which imposes as a condition precedent to the filing of a medical malpractice claim that the plaintiff provide notice of the claim and a corroborating expert opinion, is unconstitutional. We reverse as to the first issue and, consequently, do not reach the second and third issues. The second amended complaint alleged that plaintiff/appellant Vickie Broadway was a patient at appellee's hospital in July 1989 and was injured when her hospital bed collapsed. Appellants sought damages based on appellee's breach of its duty to use reasonable care in maintaining its premises and breach of its duty to warn Ms. Broadway of latent hazards. Appellee sought dismissal of the complaint on the ground that the complaint stated a claim for medical negligence and that appellants had failed to comply with the presuit screening requirements of chapter 766, Florida Statutes. The trial court entered an order dismissing the complaint with prejudice under section 766.206(2), Florida Statutes, which requires that a medical malpractice complaint be dismissed if the court finds that the plaintiff is not in compliance with the presuit investigation requirements of chapter 766. Under section 766.106(1)(a), Florida Statutes, "claim for medical malpractice" is defined as "a claim arising out of the rendering of, or the failure to render, medical care or services." A person seeking recovery for injury resulting from medical malpractice must prove that the injury resulted from a breach of the prevailing professional standard of care as set forth in section 766.102(1), Florida Statutes. The test for determining whether a defendant is entitled to the benefit of the presuit screening requirements of section 766.106, Florida Statutes, is whether the defendant is directly or vicariously liable under the medical negligence standard of care set forth in section 766.102(1), Florida Statutes. Weinstock v. Groth, 629 So.2d 835 (Fla. 1993), citing NME Properties, Inc. McCullough, 590 So.2d 439 (Fla. 2d DCA 1991). Not every wrongful act by a health care provider amounts to medical malpractice. Stackhouse v. Emerson, 611 So.2d 1365 (Fla. 5th DCA 1993). From the face of the complaint, it is apparent that appellants have sued appellee for the failure to warn of a dangerous condition or properly maintain a piece of equipment, rather than for breach of some professional standard of care. We hold that the trial court erred in dismissing the complaint. We reject appellee's contention that Neilinger v. Baptist Hospital of Miami, Inc., 460 So.2d 564 (Fla. 3d DCA 1984), requires affirmance of the order below. In Neilinger, the complaint alleged that the plaintiff, a maternity patient, slipped and fell on a pool of amniotic fluid while descending from an examination table under the direction and care of employees of the hospital. The complaint on its face alleged breach of a professional standard of care. The order appealed from is therefore reversed, and this cause is remanded for proceedings consistent herewith. BOOTH, JOANOS and MINER, JJ., concur.	{ "pile_set_name": "FreeLaw" }
640 S.W.2d 758 (1982) Harmon HOOT, Relator, v. Edwin E. BREWER, County Judge, Respondent. No. 01-82-0583-CV. Court of Appeals of Texas, Houston (1st Dist.). September 3, 1982. 759 Frank L. Mauro, Wommack, Denman & Mauro, Lake Jackson, for relator. Charles Stevenson, Asst. Dist. Atty., Angleton, for respondent. OPINION DUGGAN, Justice. This is an original mandamus proceeding in this court wherein relator seeks a writ of mandamus to compel the respondent, who is the County Judge of Brazoria County, Texas, to certify to the County Clerk of Brazoria County, Texas, relator's name to be put on the general election ballot in November, 1982, as a candidate for the office of County Judge. The jurisdiction of this court has been invoked pursuant to Tex.Elec.Code Ann. art. 13.41 (Vernon Supp.1982) and Tex.Rev. 760 Civ.Stat.Ann. arts. 1735a and 1823. The jurisdictional requirements have been demonstrated. Relator's position may be summarized briefly as follows: He maintains that he has met the statutory requirements for having his name printed on the official ballot for the general election in November, 1982, in the column for independent candidates. He maintains further that he has complied with Tex.Elec.Code Ann. art. 13.50 (Vernon Supp.1982) by a) providing the County Judge with his Notice of Intent to Run as an Independent Candidate within the time frame allowed under Tex.Elec.Code Ann. art. 13.12 (Vernon Supp.1982), and b) providing a written application signed by 686 eligible Brazoria County voters who had not voted in the May 1, 1982 primary election. Relator asserts further that his application exceeded the statutory requirement of 500 eligible voters by 186 signatures, and that each step was performed within the statutory time periods. No primary run-off election for the position of County Judge was required. Relator asserts further that he has communicated with respondent on five separate occasions between July 12, 1982 and date of filing of his application for writ of mandamus with no response out of respondent as to why relator's name has not been certified. In this connection he says further that unless respondent puts relator's name on the ballot on or before September 18, 1982, relator may lose his right to run. According to the provisions of Tex.Elec. Code Ann. art. 13.56(f) (Vernon Supp.1982) if relator is declared ineligible before the 44th day before election day (November 2, 1982), his name may not be placed on the ballot. Finally, relator asserts that in the event that respondent decides on the eve of the 44th day prior to election day that relator's application does not meet the statutory requirements for gaining a place on the ballot, there will be no time for relator to obtain a judicial determination of his right to have his name on the ballot. Regarding the likelihood that this situation could occur, relator points to the fact that, if his name is on the ballot in November, he will be an opponent of the respondent for the very position which respondent now holds. In response to all of the foregoing respondent's stance may be summarized briefly as follows: Before a writ of mandamus will issue, relator must have a clear legal right to performance of the act he seeks to compel. The duty of the officer sought to be compelled must be one clearly fixed and required by the law, or the writ will not issue. Further, says respondent, the Court of Appeals has no authority to issue writs of mandamus unless the facts are established without dispute. Provisions of the Election Code concerning the contents of an independent candidate's application to be placed on the ballot at a general election are mandatory, and must be strictly complied with. Tex.Elec.Code Ann. art. 13.50, (Vernon Supp.1982) contains the following provisions concerning the requisites of an application of an independent candidate to be placed on the ballot: Subdivision 4. No application shall contain the name of more than one candidate for the same office; and if any person signs the application of more than one candidate for the same office, the signature shall be void as to all such applications. No person shall sign such application unless he is a qualified voter, and no person who has voted at either the general primary election or the run-off primary election of any party shall sign an application in favor of anyone for an office for which a nomination was made at either such primary election. An application may not be circulated for signatures until the day after the general primary election day, or if a runoff primary election is held for the office sought by the applicant, until the day after the runoff primary election day. A signature obtained before the day an application may be circulated is void. Subdivision 5. In addition to the person's signature, the application shall show each 761 signer's address, the number of his voter registration certificate, and the date of signing. Respondent contends further that the names of those persons who signed relator's application prior to the date of the primary runoff election are not valid and may not be counted. Respondent's key position in challenging the sufficiency of the application's conformity with the requirements of the Election Code is that such requirements are mandatory, that relator must strictly comply, and that the applications must contain a sufficient address. Respondent asserts that 133 of the signatures are invalid because they were obtained before June 6, 1982; further, that 221 more of the signatures are invalid because of incomplete address. Quite obviously, says respondent, the applications contained only 268 valid signatures, far short of the required 500 valid signatures. Coming to grips now with the crucial points raised in this original proceeding this court compliments counsel for both parties on their able briefs. We recognize first, as respondent urges, that before a writ of mandamus will issue, relator must have a clear legal right to performance of the act he seeks to compel; further, that the duty of the officer sought to be compelled must be one clearly fixed and required by the law, or the writ will not issue. Oney v. Ammerman, 458 S.W.2d 54 (Tex. 1970); Bozarth v. City of Denison, 559 S.W.2d 378 (Tex.Civ.App.Dallas 1977, no writ); Blanchard v. Fulbright, 633 S.W.2d 617 (Tex.App.Houston [14th Dist.] 1982, no writ). In addition, the authorities are clear that the Courts of Appeals have no authority to issue writs of mandamus unless the facts are established without dispute. Bozarth, supra; Bigham v. Sutton, 565 S.W.2d 561 (Tex.Civ.App.Austin 1978, no writ); Donald v. Carr, 407 S.W.2d 288 (Tex. Civ.App.Dallas 1966, no writ). We are mindful also that, whereas provisions of election laws relating to voters are to be construed as directory, the provisions of election laws governing the requirements of candidates are mandatory. McWaters v. Tucker, 249 S.W.2d 80 (Tex.Civ.App.Galveston 1952, no writ); Geiger v. DeBusk, 534 S.W.2d 437 (Tex.Civ.App.Dallas 1976, no writ); Shields v. Upham, 597 S.W.2d 502 (Tex.Civ.App.El Paso 1980, no writ). VALIDITY OF SIGNATURE DATES BEFORE JUNE 6, 1982 By respondent's own figures, there were 133 signatures falling into this category. No fact issue whatever is involved in reaching that determination. In concluding whether the signatures on relator's application should be counted if the signature date is prior to June 6, 1982, the date of the run-off election, but after the date of the general primary, Tex.Elec.Code Ann. art. 13.50 (Vernon Supp.1982) is determinative. We quote therefrom as follows: An Application may not be circulated for signatures until the day after the general primary election day or if a run-off primary election is held for the office sought by applicant, until the day after the runoff primary election day. (Emphasis added.) The emphasized language is the heart of the matter because it is uncontroverted that there was no runoff election for the office of County Judge of Brazoria County in 1982. We hold, therefore, that the questioned 133 signatures obtained before June 6, 1982 are valid and should be added to the 268 signatures recognized as valid by respondent. In so holding we not only follow the clear wording of the statute, but we have the benefit of Tex.Atty.Gen.Op. No. DAD-49 (1982) which states the question as follows at page 1. 1. Under Subdivision 4 of Article 13.50, is it permissible to have an application to run as an independent candidate that contains signatures dated before the runoff primary election if there is no primary runoff election for the particular office for which a person desires, to run as an independent candidate. At page 2 the answer to such question is given as follows: "1. V.A.T.S. Election Code, art. 13.50, subd. 4, states, in part: 762 An application may not be circulated for signatures until the day after the	{ "pile_set_name": "FreeLaw" }
Fourth Court of Appeals San Antonio, Texas October 11, 2018 No. 04-18-00475-CV IN THE INTEREST OF N.F.M. AND S.R.M., From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 2017PA00070 Honorable John D. Gabriel, Jr., Judge Presiding ORDER Appellant has filed a motion for an extension of time to file the appellant’s brief because, in part, appellant’s motion for en banc reconsideration regarding this court’s briefing order is still pending. Appellant requests an additional 20 days from the date this court rules on appellant’s en banc motion. We grant the motion for an extension of time in part and ORDER that the deadline for redrawing the appellant’s brief, set by this court’s September 21, 2018 order, is suspended pending further order of this court. _________________________________ Luz Elena D. Chapa, Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 11th day of October, 2018. ___________________________________ KEITH E. HOTTLE, Clerk of Court	{ "pile_set_name": "FreeLaw" }
Order filed October 6, 2016 In The Fourteenth Court of Appeals ____________ NO. 14-15-00634-CV ____________ POWELL DORFAYE, ET AL, Appellant V. BRECKENRIDGE AT CITY VIEW APARTMENTS, Appellee On Appeal from the County Civil Court at Law No. 2 Harris County, Texas Trial Court Cause No. 1064270 ORDER On August 12, 2015, this court abated this appeal because appellant petitioned for voluntary bankruptcy in the United States Bankruptcy Court for the Southern District of Texas, under cause number 15-33972. See Tex. R. App. P. 8.2. Through the Public Access to Court Electronic Records (PACER) system, the court has learned that the bankruptcy case was closed on October 21, 2015. The parties failed to advise this court of the bankruptcy court action. Unless within 20 days of the date of this order, any party to the appeal files a motion demonstrating good cause to retain this appeal, this appeal will be reinstated and dismissed for want of prosecution. PER CURIAM	{ "pile_set_name": "FreeLaw" }
252 N.J. Super. 660 (1991) 600 A.2d 525 THELMA LAUTENSLAGER, PLAINTIFFS, v. SUPERMARKETS GENERAL CORPORATION, DEFENDANT. Superior Court of New Jersey, Law Division Union County. Decided June 28, 1991. 661 Patricia Breuninger (Breuninger, Hansen & Casale, Esqs.), for plaintiff. Hal R. Crane, Corporate Counsel for Supermarkets General Corporation. OPINION MENZA, J.S.C. Defendant moves for partial summary judgment. The question presented is which statute of limitations is applicable to a NJLAD case based on employment discrimination. On May 11, 1989, the plaintiff filed a complaint alleging a continuing pattern of employment discrimination on the part of her current employer, Supermarkets General Corporation. Specifically, the plaintiff contends that she was denied promotional opportunities from 1979 to the present, and that positions for which she was equally qualified were given to younger, usually male employees. Count One of the Complaint alleges violations of the New Jersey Laws Against Discrimination (NJLAD), N.J.S.A. 10:5-1 et seq. The defendant moves for a partial dismissal of the plaintiff's claims on the grounds that the two-year statute of limitations governing personal injury actions controls the NJLAD claim. The defendant contends, therefore, that all claims of discrimination that relate to events prior to May 11, 1987, are time barred by application of the statute. The plaintiff argues that the two-year statute is inapplicable to her claims, and that N.J.S.A. 2A:14-1, which provides a six-year statute for actions sounding in property rights, is the most befitting for discrimination claims. The NJLAD statute does not specify a statute of limitations period of limitations for actions involving employment discrimination. The limitation of actions statutes provide: 662 Every action at law for trespass to real property, for any tortious injury to real or personal property, for taking, detaining, or converting personal property, for replevin of goods or chattels, for any tortious injury to the rights of another not stated in sections 2A:14-2 and 2A:14-3 of this Title, or for recovery upon a contractual claim or liability, express or implied, not under seal, or upon an account other than one which concerns the trade or merchandise between merchant and merchant, their factors, agents and servants shall be commenced within 6 years next after the cause of any such action shall have accrued. (N.J.S.A. 2A:14-1). Every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this state shall be commenced within 2 years next after the cause of any such action shall have accrued. (N.J.S.A. 2A:14-2). In Leese v. Doe, 182 N.J. Super. 318, 440 A.2d 1166 (Law Div. 1981), the court addressed the question of which statute of limitations was applicable to the NJLAD claims based on sex discrimination. The court held that the plaintiff's employment discrimination claim was governed by the six year statute of limitations set forth in N.J.S.A. 2A:14-1. In doing so, the court analogized the NJLAD claim to a claim brought under its federal counterpart, 42 U.S.C. § 1981 and cited as authority for its holding the case of Davis v. United States Steel Supply, 581 F.2d 335 (3rd Cir.1978). The Davis case held that a petitioner's § 1981 complaint was one which sounded in property rights, and was therefore actionable under Pennsylvania's six-year statute. The Davis court said: Plaintiff's complaint cites incidents of abuse and of personal property damage, but not of bodily injury. The gravamen of the complaint does not concern Mrs. Davis' interest in personal security, but rather involves unlawful interference with her rights as an employee. Mrs. Davis implicitly asserts a right to good faith efforts by an employer to correct instances of co-worker racial harassment and a right not to be discharged for complaining of such incidents. Essentially, Mrs. Davis complains that U.S. Steel Supply demeaned her and fired her because of her race. (Id. at p. 338). In Skadegaard v. Farrell, 578 F. Supp. 1209 (D.N.J. 1984), the court, also relying on Davis, held that the six year statute was applicable to a NJLAD case based on sexual harassment. The court said: 663 The relief sought by plaintiff is the key to characterization of a cause of action for statute of limitation purposes, and as in Davis, [i]n terms of legal relief, plaintiff's complaint does not seek damages for bodily injury.' (Id. at p. 1214). The Davis case, the premise for the Leese and Skadegaard cases, was reversed by the United States Supreme Court in Goodman v. Lukens Steel, 482 U.S. 656, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987). In that case, which involved racial discrimination, the Supreme Court held that federal courts should select the most applicable state statute of limitations for § 1981 claims, and that the applicable state statute should be the one governing personal injury claims. The court said: Section 1981 has a much broader focus than contractual rights ... [It] asserts in effect that competence and capacity to contract shall not depend on race. It is thus part of a federal law barring racial discrimination, which, as the court of appeals said, is a fundamental injury to the individual rights of a person ... The Court of Appeals was correct in selecting the Pennsylvania 2-year limitation period governing personal injury actions. (Id. at 661-662, 107 S.Ct. at 2620-2621). In White v. Johnson & Johnson, 712 F. Supp. 33 (D.N.J. 1989), the District Court applying Goodman rejected Leese and Skadegaard, and held that the two year statute was applicable. The court said: The New Jersey Supreme Court has not yet ruled on the appropriate statute of limitations in an action under NJLAD. (citation omitted). In the absence of an authoritative pronouncement from the state's highest court, the task of a federal court is to predict how that court would rule.' (citation omitted). ........ The only New Jersey state case cited by the parties that has addressed the issue is Leese v. Doe, 182 N.J. Super. 318, 321, 440 A.2d 1166, 1168 (Law Div. 1981), which ruled that the six-year statute pertaining to claims for injury to property governs NJLAD claims ... Importantly, however, both Leese and one of the federal cases following it based their holding on the Third Circuit case that was overruled by Goodman in the § 1981 context, namely, Davis v. United States Steel Supply, 581 F.2d 335 (3d Cir.1989). ........ Although it [NJLAD] has wide-ranging economic consequences, it is fundamentally aimed at eliminating the injury that racial discrimination causes to the person of the aggrieved. ........ 664 The Court can only assume that if the issue were before the highest court of New Jersey, that court would do as the Superior Court did in Leese and look to federal law for guidance, but would find the current federal guidance (in contrast to what existed at the time of Leese), to favor application of the personal injury statute of limitations to NJLAD claims. Thus, the Court agrees with defendants the New Jersey Supreme Court would most likely apply the two-year limitations period of N.J.S.A. § 2A:14-1 [sic][1] to NJLAD claims. (Id. at 37-38). Although there are no New Jersey decisions which have specifically addressed the question, it appears that the New Jersey courts do apply the six year statute of limitations. In Nolan v. Otis Elevator Co., 197 N.J. Super. 468, 485 A.2d 312 (App.Div. 1984), rev'd on other grounds, 102 N.J. 30, 505 A.2d 580 (1986), cert. den., 479 U.S. 820, 107 S.Ct. 84, 93 L.Ed.2d 38 (1986), a case decided before Goodman, the Supreme Court, in reversing the Appellate Division held that the federal age discrimination in employment act preempted a state court action which was brought under NJLAD after the expiration of the statute of limitations governing the federal act. Although the Supreme Court did not specifically state the statute of limitations applicable to NJLAD claims, the Appellate Division did do so but did it in dicta and without explanation. The court said: Defendant contends here that the action is barred by the time limitations expressed in the New Jersey Law Against Discrimination and the statute of limitations, N.J.S.A. 2A:14-2. ........ ... [W]e conclude that the applicable time limitation is that stated in N.J.S.A. 2A:14-1 "6 years next after the cause of action shall have accrued. (197 N.J. Super. p. 473-474, 485 A.2d 312). And in Fisher v. Quaker Oats, 233 N.J. Super. 319, 559 A.2d 1 (App.Div. 1989), the court, in the first sentence of its opinion	{ "pile_set_name": "FreeLaw" }
Fourth Court of Appeals San Antonio, Texas June 10, 2016 No. 04-16-00336-CV IN THE INTEREST OF M.S.M., A CHILD, From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 2014PA02012 Honorable Richard Garcia, Judge Presiding ORDER The trial court signed a final judgment on April 28, 2016. Because appellant did not file a motion for new trial, motion to modify the judgment, motion for reinstatement, or request for findings of fact and conclusions of law, the notice of appeal was due to be filed on May 18, 2016. See TEX. R. APP. P. 26.1(a). A motion for extension of time to file the notice of appeal was due on June 2, 2016. See TEX. R. APP. P. 26.3. Although appellant filed a notice of appeal within the fifteen-day grace period allowed by Rule 26.3, he did not file a motion for extension of time. A motion for extension of time is necessarily implied when an appellant, acting in good faith, files a notice of appeal beyond the time allowed by Rule 26.1 but within the fifteen-day grace period provided by Rule 26.3 for filing a motion for extension of time. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (construing the predecessor to Rule 26). However, the appellant must offer a reasonable explanation for failing to file the notice of appeal in a timely manner. See id.; TEX. R. APP. P. 26.3, 10.5(b)(1)(C). It is therefore ORDERED that appellant file, within fifteen days from the date of this order, a response presenting a reasonable explanation for failing to file the notice of appeal in a timely manner. If appellant fails to respond within the time provided, the appeal will be dismissed. See TEX. R. APP. P. 42.3(c). All other appellate deadlines are suspended until further order of this court. _________________________________ Jason Pulliam, Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 10th day of June, 2016. ___________________________________ Keith E. Hottle Clerk of Court	{ "pile_set_name": "FreeLaw" }
206 Okla. 199 (1952) 242 P.2d 448 RYAN v. ANDREWSKI et al. No. 34583. Supreme Court of Oklahoma. March 25, 1952. Champion, Champion & Wallace, Ardmore, and Pierce, Rucker, Mock, Tabor & Duncan, Oklahoma City, for plaintiffs in error. Champion, Fischl & Champion, Ardmore, for defendants in error. GIBSON, J. The parties appeared in the trial court in the same order as they appear in this court and will generally be referred to as plaintiffs and defendants. On August 20, 1947, Dan Ryan filed his petition in this action naming as defendants H.C. Andrewski, L.L. Robinson and the Prudential Insurance Company of America. He alleged a partnership between himself and the personal defendants and the issuance by the Prudential of ten separate insurance policies on his life, all payable to the partnership. He further alleged a dissolution of the partnership on February 29, 1944, and that due to an oversight no mention was made of the policies; that the insurable interest held by the partnership had terminated and although he had requested defendants to make a change, naming his wife as beneficiary, they had failed and refused so to do. He tendered the cash or loan value of the policies and prayed that the defendants be canceled as beneficiaries and that the Insurance Company be required to change the beneficiary as designated by him. On motion the petition was amended, naming the wives of the plaintiff and personal defendants as parties, it appearing that the wives were included as partners in the partnership agreement. Dan Ryan died October 14, 1948, and the action was revived with his widow, as executrix of his estate, named as a party plaintiff. Issue was joined and the case tried to the court. The Insurance Company pleaded that it was a stakeholder and 200 paid the proceeds of the policies into court, and is not a party to this appeal. Judgment was rendered for defendants, and plaintiffs appeal. On June 1, 1943, Dan Ryan, Jesse Willis Ryan, his wife, and the named defendants entered into a written partnership agreement to operate under the trade name "Oklahoma Distributing Company" to engage in the manufacture, sale and distribution of beer and other beverages, each partner acquiring an undivided one-sixth interest in all assets. The three husbands were named as managing partners. It was agreed that insurance on the life of each managing partner, in the sum of $50,000, should at all times be maintained and kept in force during the existence of such partnership, the premiums to be charged against the partnership. It was provided that a partner could terminate the partnership on specified notice, with the nonterminating partners having an option of purchase, for cash, and upon payment the partnership and assets should belong to those partners making the purchase, and further: "Upon any sale as herein provided the nonpurchasers shall thereupon cease to have any interest in the partnership property or its assets, and shall not be liable for any of its unsatisfied obligations or liabilities." Policies totaling $50,000 were purchased on the life of each of the three managing partners. In the application for Mr. Ryan's policies (ten in number, each for $5,000), Dan I. Ryan was named as "Proposed Insured", Oklahoma Distributing Company was "Applicant", and the beneficiary was named "Oklahoma Distributing Company of Ardmore, Oklahoma, a partnership, as such partnership now exists or may hereafter be constituted." Attached to each policy was the following endorsement: "Provisions as to Ownership and Control of the Policy "Subject to such limitations, if any, as may be hereinafter set forth, all legal incidents of ownership and control of the Policy, including any and all benefits, values, rights and options conferred upon the Insured by the Policy or allowed by the Company and any ultimate interest as beneficiary conferred upon the Insured or the Insured's estate by the Policy, shall belong to the following Owner: Oklahoma Distributing Co. of Ardmore, Okla., a partnership, as such partnership now exists or may hereafter be constituted." Thereafter the Company assigned all of the policies to Schlitz Brewing Company as collateral security for a loan of $100,000 payable in monthly payments. About nine months after its organization and on February 29, 1944, Ryan and wife withdrew from the partnership and elected to sell their interests to the other partners for cash, as provided in the partnership agreement. A new agreement on dissolution was executed by all partners. Among other things, it provided that the partnership was dissolved by mutual agreement; that each of the four remaining partners was to receive an undivided 1/4th interest "in and to all of the business assets and properties, real, personal and/or mixed, including accounts receivable and cash on hand remaining after the distribution of cash herein distributed to Dan Ryan and Jesse Willis Ryan"; that each of the Ryans was to receive in cash out of partnership assets an amount equal to 1/6th of the total net worth of the partnership at the time of its dissolution. Further, that the distributions so made were in full liquidation of said partnership, and the remaining four partners agreed to hold the Ryans harmless from any and all damage and liability occasioned on account of any partnership obligations. The books were audited by a certified public accountant and on his determination of the total net worth of the partnership Ryan and his wife were paid the sum of $65,118.04 for their 2/6ths interest in the enterprise. 201 The insurance policies were not specifically mentioned in the dissolution agreement. Some time later Mr. Ryan became ill. He began a series of requests or demands upon the Insurance Company and his former partners, contending that the Distributing Company as it then existed did not own the policy and requesting that the policies be returned and that his wife be named beneficiary. These negotiations were fruitless, and more than three years after dissolution of the partnership Mr. Ryan filed this action. Plaintiffs contend that the judgment is not supported by the evidence and is contrary to law. It is said that the policies were not disposed of in the written agreement of dissolution and that each partner was entitled to his pro-rata share of the undisposed assets, and that after the dissolution the resultant partnership had no insurable interest. The argument overlooks the provision of the dissolution agreement wherein there was distributed to the four remaining partners "all of the business assets and properties, real, personal and/or mixed ... after the distribution of the cash herein distributed to Dan Ryan and Jesse Willis Ryan etc.", and it overlooks the designated beneficiary which was the Distributing Company "as such partnership now exists or may hereafter be constituted." The accountant who made the audit, upon which the distribution of assets was based, did not list the policies as assets because, at that time, they had no cash value, but throughout the existence of the partnership the partners treated all policies as a business asset and property, and they had used the same to obtain a large loan for partnership use, which loan had not been repaid at the time of the dissolution. As a part of the agreement that obligation was assumed by the remaining partners and plaintiffs were held harmless from liability thereon. The premiums had been paid by the partnership and the sole beneficiary was the partnership. Miller v. Hall, 65 Cal. A.2d 200, 150 P.2d 287, cited by defendants, is not in point, by reason of the difference in facts from those of the instant case, including the designation of beneficiary. The case does hold that since the premiums were paid by the partnership the interest of the parties in the policies became partnership assets. Defendants say that a beneficiary irrevocably designated as such in a life policy has a vested right not subject to change at the insured's hand. In making this contention defendant is supported by the great weight of authority. "It is held by the great weight of authority that the interest of a designated beneficiary in an ordinary life policy vests upon the execution and delivery thereof, and, unless the same contains a provision authorizing a change of beneficiary without the consent thereof, the insured cannot make such change." Condon v. New York Life Ins. Co. of New York, 188 Iowa 658, 166 N.W. 452. The opinion cites many cases from various jurisdictions in support of the rule announced. See, also, Page v. Detroit Life Ins. Co., 11 Tenn. App. 417; Ruckenstein v. Metropolitan Life Ins. Co., 263 N.Y. 204, 188 N.E. 650. At the time of the dissolution agreement all policies were pledged with Schlitz Brewing Company to secure the partnership loan, and there was an unpaid balance of $70,000 on that debt. "Where partner contracted with his copartner that he should be beneficiary of partner's life policy, partner's attempt to change beneficiary after dissolution of partnership when partner owed money to copartner held ineffective (Rev. St. 1925, art. 5048)." Smith v. Schoellkopf (Tex. Civ. App.) 68 S.W.2d 346. While admitting that the partnership had an insurable interest in the life of Mr. Ryan, at the time the policies were written, plaintiffs say that there is no insurable interest possessed by *202 the partnership which continued after the dissolution. "An insurer is the only party who can raise question of insurable interest, and if insurer waives question of interest and pays money to named beneficiary, or into court, neither personal representative nor creditors can claim proceeds on grounds of beneficiary's lack of insurable interest. St. 1935, p. 636, sec. 10110." Jenkins v. Hill, 35 Cal. A.2	{ "pile_set_name": "FreeLaw" }
137 F.3d 1420 98 Cal. Daily Op. Serv. 1704, 98 Daily JournalD.A.R. 2393Arthur CALDERON, Warden, of the California State Prison, SanQuentin, Petitioner,v.UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OFCALIFORNIA, Respondent. No. 97-70139. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 25, 1997.Decided March 10, 1998. J. Robert Jibson, Deputy Attorney General, Sacramento, CA, for petitioner. Peter Giannini, Los Angeles, CA, for real party in interest, Malone. Petition for Writ of Mandamus. Before: FLETCHER, FARRIS and KOZINSKI, Circuit Judges. KOZINSKI, Circuit Judge. 1 Kelvin Shelby Malone, currently incarcerated in California, is under sentence of death both in that state and in Missouri. His federal habeas petition in California is in its initial stages. By contrast, habeas review of Malone's Missouri conviction and sentence is almost complete; the Eighth Circuit has the case under submission. Because Malone's Missouri execution date may be imminent, the governor of Missouri made a formal request to the governor of California asking that Malone be released into Missouri's custody. See Uniform Criminal Extradition Act, Cal.Penal Code §§ 1547-1556.2 and Mo.Rev.Stat. §§ 548.011-548.300. The governor of California agreed and the two entered into an executive agreement providing for Malone's extradition to Missouri. Malone unsuccessfully challenged the extradition in California state court and also sought a stay from the district court with jurisdiction over his California-based habeas petition. The district court granted the requested relief; it entered an order staying the extradition unless certain conditions were met (most notably, that Missouri submit to the district court's jurisdiction). In its petition for a writ of mandamus California seeks to have that ruling reversed. 2 Mandamus is not to be used as a substitute for an appeal: "[A] court of appeals has no occasion to engage in extraordinary review by mandamus ... when it can exercise the same review by a contemporaneous ordinary appeal." Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 8 n. 6, 103 S.Ct. 927, 933 n. 6, 74 L.Ed.2d 765 (1983). See also Calderon v. United States Dist. Court, 134 F.3d 981, 983-84 (9th Cir.1998) (mandamus not available when petitioner could have filed direct appeal); Herrington v. County of Sonoma, 706 F.2d 938, 940 (9th Cir.1983) (same); Bauman v. United States Dist. Court, 557 F.2d 650, 654 (9th Cir.1977) (same). The district court's order was not a final judgment, so the state could not have appealed it under 28 U.S.C. § 1291. But was it the kind of interlocutory order that could have been appealed as of right pursuant to 28 U.S.C. § 1292? 3 Under 28 U.S.C. § 1292(a)(1) interlocutory injunctions are immediately appealable.1 That the district court here did not label its order an injunction is not dispositive. In determining whether an order is appealable under section 1292(a)(1), we consider the substantial effect of the order. See Tagupa v. East-West Ctr., Inc., 642 F.2d 1127, 1129 (9th Cir.1981) (looking not to form of district court's order but to its actual effect); Santana Prods., Inc. v. Compression Polymers, Inc., 8 F.3d 152, 154 (3rd Cir.1993) (same); Sierra Club v. Marsh, 907 F.2d 210, 213 (1st Cir.1990) (same); 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure, § 2962 (2d ed.1995) (same). 4 At Malone's request, the district court entered an order prohibiting California from turning him over to Missouri. Were the state to ignore the order and release Malone into Missouri's custody, it could surely be brought before the district court to answer contempt charges. This order thus restrains a party, on penalty of contempt, from taking an action that it could otherwise take. We have no trouble concluding that the order is in fact an injunction. Had California filed a timely notice of appeal, we would have had jurisdiction pursuant to 28 U.S.C. § 1292(a)(1).2 5 Because California could have obtained review of the district court's order through an ordinary appeal, mandamus is not available. Had the state filed its mandamus petition within the time allowed for filing a notice of appeal, we would have treated it as a notice of appeal and reached the merits. See Helstoski v. Meanor, 442 U.S. 500, 508 n. 4, 99 S.Ct. 2445, 2449 n. 4, 61 L.Ed.2d 30 (1979); Diamond v. United States Dist. Court, 661 F.2d 1198, 1198-99 (9th Cir.1981). But it did not.3 The state is thus in the same unhappy position as other litigants who failed to comply with jurisdictional requirements for perfecting an appeal. See Pratt v. McCarthy, 850 F.2d 590, 591 (9th Cir.1988), overruled on other grounds Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd. Partnership, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993); Mann v. Lynaugh, 840 F.2d 1194, 1197 (5th Cir.1988). While we harbor serious doubts about the district court's order, it is not reviewable by writ of mandamus. 6 DISMISSED. 1 Section 1292(a) was not mentioned by the state in its briefs and the deputy attorney general who argued the case seemed unaware of its existence when asked about it. This is not unusual. See McLain v. Calderon, 134 F.3d 1383, 1384 n.3 (9th Cir.1998) 2 Because the order is not explicitly labeled an injunction, it is arguable that the requirements of Carson v. American Brands, Inc., 450 U.S. 79, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981), would have had to have been satisfied before an immediate appeal could have been taken. Carson held that, to be appealable under section 1292(a)(1), a district court ruling must (1) have the practical effect of entering an injunction, (2) have serious, perhaps irreparable, consequences, and (3) be such that an immediate appeal is the only effective way to challenge it. Id. at 84, 101 S.Ct. at 996-97. Carson involved an order denying relief; it is unclear whether Carson also applies when the order in question grants injunctive relief. For the reasons explained in Cohen v. Board of Trustees of Univ. of Medicine and Dentistry, 867 F.2d 1455, 1466-67 (3rd Cir.1989), it may well not. However, we have not been consistent on this point, sometimes applying Carson to determine the appealability of orders granting relief, see e.g., Thompson v. Enomoto, 815 F.2d 1323, 1326-27 (9th Cir.1987), and other times not, see e.g., United States v. Gila Valley Irrigation Dist., 31 F.3d 1428, 1441 (9th Cir.1994). Here it doesn't matter. We have already held that the first Carson requirement is satisfied, see p. 1422 supra; if the second and third requirements are not satisfied, the state would, a fortiori, not be entitled to mandamus. See Bauman v. United States Dist. Court, 557 F.2d 650, 654 (9th Cir.1977) 3 The time to file a notice of appeal expired on January 26, 1997; the state filed its petition on February 12, 1997	{ "pile_set_name": "FreeLaw" }
141 S.E.2d 632 (1965) 264 N.C. 401 George W. JONES, Employee, v. MYRTLE DESK COMPANY, Employer, and Liberty Mutual Insurance Company, Carrier. No. 690. Supreme Court of North Carolina. May 5, 1965. *633 C. T. Kennedy, Thomasville, and Haworth, Riggs, Kuhn & Haworth, High Point, for plaintiff. Lovelace & Hardin, High Point, for defendants. PER CURIAM. Counsel for plaintiff has presented the contentions of his client, both as to the facts and law, with thoroughness, force and competency. These contentions have been fully considered in our review of the record. However, we find nothing which justifies a remand of the cause or a reversal of the judgment below. Review in Supreme Court is limited to questions of law and legal inference. The findings of fact of the Industrial Commission are conclusive on appeal when supported by competent evidence, even though there be evidence that would support findings to the contrary. The record in this case contains competent supporting evidence for each finding of fact. The findings are positive and cover all crucial facts upon which the right to compensation depends. The facts found support the conclusion that plaintiff's injury did not arise out of and in the course of his employment with defendant employer. Bell v. Dewey Brothers, Inc., 236 N.C. 280, 72 S.E.2d 680. Affirmed.	{ "pile_set_name": "FreeLaw" }
FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit TENTH CIRCUIT September 19, 2011 Elisabeth A. Shumaker Clerk of Court RICHARD G. KIRBY, Plaintiff-Appellant, No. 11-2082 v. (D.C. No. 1:08-CV-00887-JB-DJS) (D.N.M.) ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO; JAMES JANECKA, Warden, Defendants-Appellees. ORDER Before KELLY, HARTZ, and HOLMES, Circuit Judges. This matter is before the court on consideration of Appellant’s petition for panel rehearing. Pursuant to Federal Rule of Appellate Procedure 40(a)(4)(C), we GRANT Appellant’s petition for panel rehearing. The previous Order Denying Certificate of Appealability, Kirby v. Attorney General of New Mexico, No. 11- 2082, 2011 WL 3664281 (10th Cir. Aug. 22, 2011), is vacated and the attached amended Order Denying Certificate of Appealability is substituted in its place. Entered for the Court, ELISABETH A. SHUMAKER, Clerk FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS September 19, 2011 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court RICHARD G. KIRBY, Plaintiff-Appellant, No. 11-2082 v. (D.C. No. 1:08-CV-00887-JB-DJS) (D.N.M.) ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO; JAMES JANECKA, Warden, Defendants-Appellees. ORDER DENYING CERTIFICATE OF APPEALABILITY * Before KELLY, HARTZ, and HOLMES, Circuit Judges. Petitioner Richard Kirby, a former New Mexico state prisoner proceeding pro se, 1 seeks a Certificate of Appealability (“COA”) to appeal the district court’s * This Order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. After examining the appellate record, this three-judge panel determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. 1 Because Mr. Kirby is proceeding pro se, we construe his filings liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007). denial of: (1) his 28 U.S.C. § 2254 habeas petition; (2) his “Petition for Coram Nobis,” which the district court construed as a supplemental § 2254 habeas pleading; and (3) his Federal Rule of Civil Procedure Rule 59(e) motion, which the district court construed as a second or successive § 2254 habeas petition. Mr. Kirby also seeks to challenge the district court’s refusal to expand the record or grant an evidentiary hearing below. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we deny Mr. Kirby’s request for a COA on all claims and dismiss his appeal. BACKGROUND Mr. Kirby was convicted by jury in state court of fraud over $250. 2 His conviction was “based on evidence that [he] hired Loren Collett to design a website for him, and then failed to pay Mr. Collett.” R., Vol. I, at 25 (State Ct. Mem. Op., filed May 10, 2005). More specifically, as described by the federal magistrate judge in this case: 2 The New Mexico fraud statute in effect when Mr. Kirby was indicted and convicted read, in part: “Whoever commits fraud when the value of the property misappropriated or taken is over two hundred fifty dollars ($250) but not more than twenty-five hundred dollars ($2,500) is guilty of a fourth degree felony.” N.M. Stat. Ann. § 30-16-6 (1987); see also R., Vol. I, at 35 (State v. Kirby, 161 P.3d 883, 884 (N.M. 2007)) (“Defendant was charged with one count of fraud over $250 but less than $2,500, a fourth degree felony.” (citing N.M. Stat. Ann. § 30-16-6 (1987))). The statute was amended in 2006. Under the amended fraud provision, fraud over $250 but less than $500 is a misdemeanor, while fraud over $500 but less than $2,500 is a fourth degree felony. See N.M. Stat. Ann. § 30-16-6 (2006). 3 Kirby owned a small business. He hired the victim, Loren Collett, to design and develop a website and the two entered into a website design contract under which Kirby was to pay Collett $1,890 for his design services. Collett provided the designs and incorporated them into Kirby’s website, but Kirby did not pay him. When Collett allegedly changed the password to prevent Kirby from utilizing the designs, Kirby, who claims he was the “designated administrator” of the website, had the web space provider reset the password thereby blocking Collett’s attempts to secure the designs pending payment for services. Id. at 873–74 (Magistrate Judge’s Proposed Findings & Recommended Disposition, filed Nov. 4, 2010). The New Mexico district court sentenced Mr. Kirby to eighteen months’ incarceration, followed by one year of supervised release. The conviction and sentence were ultimately affirmed by the New Mexico Supreme Court in 2007. The district attorney then filed a Supplemental Criminal Information asserting that Mr. Kirby qualified as a habitual offender under N.M. Stat. Ann. § 31-18- 17B, and therefore his sentence should be increased by four years as required by that provision. See N.M. Stat. Ann. § 31-18-17B (“A person convicted of a noncapital felony in this state . . . who has incurred two prior felony convictions that were parts of separate transactions or occurrences or conditional discharge . . . is a habitual offender and his basic sentence shall be increased by four years.”). The trial court agreed and issued an amended judgment, which added four years to Mr. Kirby’s prison sentence, resulting in a sixty-six-month sentence. Mr. Kirby then appealed the sentence enhancement. 4 In September 2008, while the sentence appeal was pending in state court, Mr. Kirby filed a habeas application pursuant to 28 U.S.C. § 2254 in the United States District Court for the District of New Mexico. In December 2009, Mr. Kirby filed a “Petition for Coram Nobis” with the federal district court, which both informed the court that the state courts had rejected his sentence appeal and asserted several challenges to the sentence enhancement. 3 “[A]s of August 19, 2010, Kirby had completed both the original and enhanced sentences, as well as the period of parole associated with the fraud conviction.” R., Vol. I, at 869. In his § 2254 habeas application, Mr. Kirby raised ten challenges: (1) “the fraud conviction violates his due process rights because it involved an unforeseeable interpretation of the law,” id. at 873; (2) his due-process rights were violated because “the New Mexico fraud statute is vague as applied to him,” id. at 879; (3) the New Mexico state court lacked subject-matter jurisdiction, id. at 881; (4) there was insufficient evidence adduced at trial to demonstrate “that someone other than [Mr. Kirby] owned the website,” a required element under the state fraud statute, id. at 882–83; (5) the restitution award issued against him was impermissible, id. at 883–84; (6) his “due process rights were violated by the 3 The State initially sought dismissal of the habeas application on the ground that Mr	{ "pile_set_name": "FreeLaw" }
508 F.2d 673 In the Matter of COMPUTER UTILIZATION, INC., Bankrupt.John A. PACE, Appellant,v.COMPUTER UTILIZATION, INC., Appellee. No. 74-3203 Summary Calendar.**Rule 18, 5th Cir.; see Isbell Enterprises, Inc.v.Citizens Casualty Co. of New York et al., 5th Cir. 1970, 431 F.2d 409, Part I. United States Court of Appeals, Fifth Circuit. Feb. 20, 1975. James F. Menefee, Dallas, Tex., for appellant. Philip I. Palmer, Jr., Dallas, Tex., for appellee. Steve Ungerman, Dallas, Tex., for other interested parties. Appeal from the United States District Court for the Northern District of Texas. Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Circuit Judges. THORNBERRY, Circuit Judge: 1 Computer Utilization, Inc. (CUI), a computer service corporation based in Garland, Texas, filed a petition for an arrangement under Chapter XI of the Bankruptcy Act on July 5, 1971. Over one year prior to filing, CUI had retained John A. Pace, a Dallas attorney, to handle various collection matters. It is undisputed that prior to filing, Pace had performed a considerable amount of services in the various collection matters, but had not billed CUI for those services. Pace also performed some work after the July 5, 1971 filing, though he was somewhat vague at trial as to the nature and extent of those services. In its Chapter XI petition, CUI did not schedule Pace either as an unsecured creditor or as a party to an executory contract. The referee confirmed an amended plan of arrangement based upon the petition on September 16, 1971. 2 In May 1972, Pace filed suit in state district court for Dallas County, Texas to recover for his services. On November 21, 1972, the trustee filed an application for an order to show cause why the state court proceedings should not be enjoined. After a hearing, the referee entered a permanent injunction prohibiting Pace from pursuing his state claim and the district court below affirmed that decision. Pace now appeals, claiming that CUI failed to satisfy the notice requirements for rejection of executory contracts, the adoption of the arrangement does not discharge his claim. We disagree and affirm the decision below. 3 Pace and CUI executed no formal employment contract, but it is undisputed that Pace represented CUI on a continuing basis since May 1970. He seeks recovery primarily for services rendered prior to the filing of the petition. As to those services, Pace clearly had a provable claim at the time of filing. The fact that Pace had not yet billed CUI is immaterial. He had already performed the services and CUI had incurred the obligation to pay for them. 11 U.S.C. 35(a) provides '(a) discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part . . ..' 11 U.S.C. 35(a)(3) excepts from the discharge provision those debts that 'have not been duly scheduled in time for proof and allowance, with the name of the creditor, if known to the bankrupt, unless such creditor had notice or actual knowledge of the proceedings in bankruptcy.' 4 The record testimony in the court below makes it clear that Pace cannot claim the benefit of the exception. Pace himself testified that he had actual knowledge of the bankruptcy proceedings. He was fully aware that the petition had been filed and that his name did not appear on the list of unsecured creditors. Yet Pace took no action. Under 11 U.S.C. 35(a), adoption of the arrangement discharged Pace's claim for services rendered prior to the filing of the petition. 5 As part of his claim, Pace seeks to recover for services rendered after the Chapter XI petition was filed. Here, however, it is undisputed that Pace was not appointed to render services in accordance with General Order 44. The claim for those services is also barred. Becker v. Stewart, 402 F.2d 500 (5th Cir. 1968); In re HydroCarbon Chemicals, Inc., 411 F.2d 203 (3d Cir. 1969), cert. denied, 396 U.S. 823, 90 S.Ct. 66, 24 L.Ed.2d 74; 1 Collier Bankruptcy Manual P62.06 (2d Ed. 1974). 6 Pace concedes that most of the services were rendered prior to the filing of the petition, but argues that his failure to bill the bankrupt and the continuing nature of his representation made the contract executory. He then argues that CUI failed to comply with the notice requirements for discharge of executory contracts under Chapter XI, preventing discharge of his claim. Pace's proof of damages, however, belies these assertions. He presented no evidence of loss of future income; instead he sought recovery for services already rendered. The contract is not executory for purposes of the bankruptcy statute where the only performance due from the debtor is payment. See Stell Mfg. Co. v. Gilbert, 372 F.2d 113 (5th Cir. 1962). 7 Pace worked closely with the bankrupt when CUI instituted the Chapter XI proceedings. He was fully aware of the company's financial problems, and the status of the bankruptcy proceedings. Yet he took no affirmative action to protect his own rights. The district court properly denied Pace's claims for attorney's fees, and properly issued the injunction under 11 U.S.C. 35(c)(3). 8 Affirmed.	{ "pile_set_name": "FreeLaw" }
[Cite as State v. Housley, 2020-Ohio-1143.] IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MIAMI COUNTY : STATE OF OHIO : : Appellate Case No. 2019-CA-12 Plaintiff-Appellee : : Trial Court Case No. 2016-CR-348 v. : : (Criminal Appeal from TIMOTHY H. HOUSLEY : Common Pleas Court) : Defendant-Appellant : ........... OPINION Rendered on the 27th day of March, 2020. ........... PAUL M. WATKINS, Atty. Reg. No. 0090868, Miami County Prosecutor’s Office, Safety Building, 201 West Main Street, Troy, Ohio 45373 Attorney for Plaintiff-Appellant TIMOTHY HOUSLEY, #A730-882, P.O. Box 209, Orient, Ohio 43146 Defendant-Appellant, Pro Se ............. FROELICH, J. -2- {¶ 1} Timothy H. Housley appeals from the trial court’s denial of his “motion to vacate a void judgment of conviction for lack of subject matter jurisdiction.” For the following reasons, the trial court’s judgment will be affirmed. {¶ 2} In October 2016, Housley pled guilty in the Miami County Court of Common Pleas to trafficking in drugs, a second-degree felony, and two counts of possession of drugs, both third-degree felonies. The parties agreed to a five-year sentence, and the State agreed to take no position on judicial release. At sentencing, the trial court imposed five years for Count 1 and 12-month sentences for Counts 2 and 3, to be served concurrently. The court further ordered Housley to pay restitution of $125 and court costs, and it suspended his driver’s license for two years. Housley did not appeal his conviction. {¶ 3} In July 2017, Housley sought judicial release, which was denied. {¶ 4} In December 2017, the State filed an application for the destruction or disposal of evidence seized from Housley by the Troy Police Department, including cell phones, computers, currency, and a handgun. The court granted the motion. Housley subsequently sought the return of additional property seized by the police, including a safe. The trial court denied Housley’s motion for lack of jurisdiction. Housley appealed the trial court’s ruling. See State v. Housley, 2d Dist. Miami No. 2018-CA-4, 2018-Ohio- 4140. The outcomes of Housley’s 2018 appeal and a subsequent appeal related to Housley’s motion for return of property are not relevant to this appeal. {¶ 5} On December 14, 2017, Housley moved to withdraw his guilty plea due to ineffective assistance of trial counsel. He claimed that he declined to pursue his motion -3- to suppress and accepted a five-year plea offer because defense counsel indicated that he would receive 16 years in prison if he did not accept the offer. Housley argued in his motion that his counsel acted deficiently by “coercing and allowing [him] to plead guilty” because (1) he was illegally detained by the Troy Police Department, which would have been raised at the scheduled suppression hearing, (2) the charges in the information were void, (3) he did not help prepare, ship or traffic hashish, liquid hashish and/or marijuana, (4) the State lacked probable cause to arrest him on the charges to which he pled, and (5) defense counsel did not inform Housley that the drugs could be reanalyzed. Housley asserted that counsel did not provide him complete discovery and that he (Housley) was innocent of the charges. Housley also argued that the State violated the plea agreement when it objected to Housley’s motion for judicial release.1 {¶ 6} In April 2018, the trial court denied Housley’s motion to withdraw his plea. Housley did not appeal the trial court’s ruling. {¶ 7} On March 7, 2019, Housley filed a “motion to vacate a void judgment of conviction for lack of subject matter jurisdiction.” Housley emphasized that the State acknowledged in its appellate brief in Case No. 2018-CA-4 that Housley was a visitor at the home that was searched and where drugs were found that brought about the charges in this case (2016-CR-348). Housley argued that the information was exculpatory, that the State had violated its duty under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) to disclose it, and that the State’s actions divested the trial court of 1 The State’s response to Housley’s motion for judicial release was filed after the trial court denied Housley’s motion. Shortly after the filing of Housley’s motion to withdraw his plea, the State withdrew its response to Housley’s motion for judicial release and indicated that the State had no position on any future motion for judicial release filed by Housley. -4- subject matter jurisdiction. Housley attached to his motion the relevant page from the State’s appellate brief, which stated that Housley had claimed that he did not reside at the residence and that Housley had not established ownership and possession of the safe and computers at issue. {¶ 8} The State opposed Housley’s motion to vacate, construing the motion as a petition for postconviction relief. The State asserted that it fully complied with Brady, that Housley’s petition was untimely, and that his claim of newly exculpatory evidence was “blatantly false.” Housley filed a reply memorandum, disclaiming that he had filed a petition for postconviction relief or a Civ.R. 60(B) motion. He again asserted that the State’s Brady and discovery violation was a jurisdictional defect. {¶ 9} The trial court denied Housley’s motion, concluding that it had subject matter jurisdiction over Housley’s criminal case for drug trafficking and possession of drugs. The court noted that the “primary issue raised by Defendant is that his constitutional rights were violated by the State because he was a mere visitor in the house of the co- defendant, and the State withheld this exculpatory information from him.” The court found that Housley’s claim fell with R.C. 2953.21, governing petitions for postconviction relief, although Housley insisted that he was not seeking relief under that statute. The court concluded that such a claim would be untimely and that Housley’s being a visitor to the house was not exculpatory as residency was not an element of the charges to which he pled guilty. {¶ 10} Housley appeals from the trial court’s ruling, raising arguments similar to those in his motion to vacate. {¶ 11} As an initial matter, we find no error with the trial court’s conclusion that it -5- had subject matter jurisdiction over Housley’s criminal case. “Subject-matter jurisdiction is the power of a court to entertain and adjudicate a particular class of cases.” Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, ¶ 19, citing Morrison v. Steiner, 32 Ohio St.2d 86, 87, 290 N.E.2d 841 (1972). Common pleas courts are constitutionally created and are courts of general jurisdiction with subject matter jurisdiction over all legal and equitable matters that are not denied to the court. Id. at ¶ 20; see Ohio Constitution, Article IV, Section 4(B). {¶ 12} Pursuant to R.C. 2931.03, a court of common pleas “has original jurisdiction of all crimes and offenses, except in the case of minor offenses * * *.” See, e.g., State ex rel. Kerr v. Pollex, Ohio Slip Opinion No. 2020-Ohio-411, __ N.E.3d __, ¶ 7 (common pleas court had subject matter jurisdiction, pursuant to R.C. 2931.03, over defendant’s criminal case for forgery and tampering with evidence); Smith v. Sheldon, 157 Ohio St.3d 1, 2019-Ohio-1677, 131	{ "pile_set_name": "FreeLaw" }
T.C. Memo. 2008-272 UNITED STATES TAX COURT HOWARD & REBECCA PATE, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent Docket No. 10006-07. Filed December 9, 2008. Howard and Rebecca Pate, pro sese. Randall Durfee and Gordon Sanz, for respondent. MEMORANDUM FINDINGS OF FACT AND OPINION COHEN, Judge: Respondent determined deficiencies of $16,339 and $19,409 in petitioners’ Federal income taxes for 2003 and 2004, respectively. Respondent also determined penalties under section 6662(a) of $3,267.80 and $3,881.80 for 2003 and 2004, respectively. The issues for decision are: (1) Whether the Pate Association and Pate Joint Venture are disregarded for Federal - 2 - tax purposes and their income for the years in issue is attributed to petitioners; (2) whether petitioners are liable for self-employment tax; (3) whether petitioners are entitled to any deductions beyond those conceded by respondent; and (4) whether petitioners are liable for the penalties under section 6662(a). Unless otherwise indicated, all section references are to the Internal Revenue Code in effect for the years in issue, and all Rule references are to the Tax Court Rules of Practice and Procedure. FINDINGS OF FACT Petitioners resided in Texas at the time that they filed their petition. During 2003 and 2004, petitioner Howard W. Pate (Mr. Pate) conducted a business as a pipeline inspector and consultant. Mr. Pate worked exclusively for Anadarko Petroleum Corp. or its affiliate, Anadarko Gathering Co. (Anadarko). Anadarko reported nonemployee compensation on Forms 1099-MISC, Miscellaneous Income, that it issued to Mr. Pate for those years. The amounts received by Mr. Pate and reported as nonemployee compensation were $98,200 for 2003 and $107,065 for 2004. During 2003 and 2004, Rebecca Pate (Ms. Pate) was employed full time as a school teacher for the Bryan Independent School District in Bryan, Texas. Petitioners had two young children living at home during the years in issue. - 3 - Petitioners owned approximately 52 acres of land in Bryan, Texas. By the end of 2004, petitioners maintained no more than 30 cows on the property. They did not sell any cows or calves during 2003 or 2004. Petitioners did not maintain books and records of their cattle activity or any record showing profit and loss from that activity. Mr. Pate was away from home on business much of the time, leaving Ms. Pate and their children to feed the cattle. Petitioners’ cattle activity was not conducted in a businesslike manner and was not operated with an actual and honest profit objective. Petitioners filed Forms 1040, U.S. Individual Income Tax Return, for 2003 and 2004. The amounts paid to Mr. Pate in relation to his business, $98,200 for 2003 and $107,065 for 2004, were initially set out as gross income on Schedules C, Profit or Loss From Business. Petitioners, however, reduced these gross income amounts to zero by claiming “other expenses” of equal amounts. Petitioners supposedly validated these Schedule C expenses by noting that the business was “pass thru” and a “Form 1099 issued to above taxpayer ID# are properly reported” for 2003 “on Schedule E, page 2. Joint Venture” and for 2004 “on Form 1120 S”. The gross income set out on each Schedule C was therefore not included in the computation of taxable income. The 2003 Schedule E, Supplemental Income and Loss, reflected a much smaller amount of income, $49,820, than that set out on - 4 - Schedule C, $98,200. Petitioners reported that this income had been earned by the “Pate Joint Venture”. Petitioners filed the 2004 Form 1120S, U.S. Income Tax Return for an S Corporation, for a so-called Pate Association that used the same address as petitioners’ residence. The Form 1120S reported gross receipts of $107,289, claimed cost of goods sold of $15,594 and business deductions of $63,959, and reported net business income of $27,736. The Pate Association and Pate Joint Venture were concepts that, in Mr. Pate’s words, “put all of our stuff under one and so we could file everything as one to make it easy for us to file our income tax.” Mr. Pate did not know whether the Pate Association and Pate Joint Venture were one and the same or two separate entities. These two concepts, which had no purpose other than to reduce petitioners’ Federal income taxes, had been suggested by Richard Ohendalski, a certified public accountant (C.P.A.) associated with the Legacy Group. Employees of the Legacy Group prepared petitioners’ income tax returns for 2003 and 2004. As a result of the manner in which their Federal income tax returns for 2003 and 2004 were prepared, petitioners failed to report self-employment tax due on Mr. Pate’s business profit. In addition, deductions claimed as business deductions included personal expenses and other nondeductible items. The amounts and - 5 - the nature of the specific items claimed were not disclosed on petitioners’ returns. During an audit of their Federal income tax returns for 2003 and 2004, petitioners presented various receipts and schedules to support deductible business expenses. Only the following amounts were substantiated to the satisfaction of respondent: Year Description Amount 2003 Repairs $309 Utilities and phone 1,809 Automobile 18,948 Dues & fees 216 Legal/accounting 425 2004 Automobile 21,890 Telephone 904 OPINION A taxpayer has the right to elect a business form to minimize or altogether avoid the incidence of taxation by any means that the law permits. See Gregory v. Helvering, 293 U.S. 465, 469 (1935). While a taxpayer is free to adopt a corporate or partnership form of doing business, the entity must have been organized for a substantial business purpose or actually engage in substantive income-producing activity in order to be recognized as a separate taxable entity. See Commissioner v. Culbertson, 337 U.S. 733, 743 (1949); Moline Props., Inc. v. Commissioner, 319 U.S. 436, 439 (1943). The Government, however, is not required to simply accept a taxpayer’s election of business form where that form is unreal. Higgins v. Smith, 308 - 6 - U.S. 473, 477 (1940). Instead, the Government should disregard such an entity, as any other result would allow the schemes of the taxpayer to supersede the law. Id. Mr. Pate testified and petitioners do not deny that they adopted their tax-reporting methodology solely for tax reasons. The so-called Pate Association and Pate Joint Venture had no business purpose. They merely supported a methodology designed to avoid reporting and paying Federal income tax and self- employment tax on Mr. Pate’s earnings during the years in issue and to allow the amounts and the nature of particular expenses to be concealed. Petitioners could not provide credible evidence that the Pate Association and Pate Joint Venture were viable entities separate from petitioners for Federal tax purposes. Because these “entities” have no economic substance and separate legal existence, the income in issue is attributed to petitioners and subject to Federal income tax. With respect to their liability for self-employment taxes, petitioners’ brief asserts the following frivolous position: Self-employment tax In the notice of deficiency respondent seeks to assert self-employment tax. Self-employment taxes are imposed only upon the operations of a “trade or business”. “Trade or business” is defined in the Internal Revenue Code as “...the performance of the functions of a public office.” See IRC 7701(a)(26). Self-employment tax also depends upon the definition of “trade or business” as in IRC 162. IRC section 162 makes no changes	{ "pile_set_name": "FreeLaw" }
915 F.2d 1559 Adnan International Marketing, Inc., Adnan, Inc., ManheimBMW, Inc., t/a Manheim Motorsv.Hamilton Bank, Manheim National Bank, Seese (Ronald),Lenhart (Raymond), Marks (Merrit), Kauffman (James),Dimariano (Gary), Light (Ronald E.), a/k/a Light (Ronald),Blatz (John), a/k/a Blatz (John W.), John W. Blatz, Inc. NO. 90-1286 United States Court of Appeals,Third Circuit. SEP 12, 1990 Appeal From: E.D.Pa., Reed, J. 1 AFFIRMED.	{ "pile_set_name": "FreeLaw" }
576 So.2d 666 (1991) Jimmy R. HASTINGS v. Bobby HANCOCK d/b/a B & P Used Motors. Civ. 7845. Court of Civil Appeals of Alabama. February 6, 1991. 667 Clyde D. Baker, Guntersville, for appellant. No brief for appellee. ROBERTSON, Presiding Judge. Following a hearing in which the employee, Jimmy Hastings, was awarded workmen's compensation benefits, he moved for an amended judgment, requesting double compensation pursuant to § 25-5-8(e), Code 1975. That code section provides: "Penalties for failure to secure payment of compensation; injunctions. Any employer required to secure ... compensation shall be guilty of a misdemeanor and, upon conviction thereof, shall be subject to a fine of not less than $25 nor more than $1,000. In addition thereto, any employer required to secure the payment of compensation under this section who fails to secure such compensation shall be liable for two times the amount of compensation which would have otherwise been payable for injury or death to an employee." § 25-5-8(e), Code 1975 (emphasis added). The trial court's order in this case that awarded the employee benefits made no finding concerning whether the employer had failed to secure workmen's compensation insurance. However, upon the employee's motion to amend the final judgment, the court entered the following order: "The claim for the penalty under the aforesaid code section [§ 25-5-8(e)] was not made a part of the plaintiff's complaint and was not litigated on trial of this cause. Further, there is no evidence before the court of whether the defendants have opted to be self-insurers, under sub-paragraph (b) of the aforesaid code section, as they have the right to do." This court has previously determined that the double award penalty provision of § 25-5-8(e), Code 1975, is mandatory. Rush v. Heflin, 411 So.2d 1295 (Ala.Civ. App.1982). In fact, this court specifically noted in Rush that "there is no legal right to relief from a penalty which is required to be imposed by law." Further, because the code section was found to be valid, this court held that "it had to be applied by the trial court." Rush at 1296. However, the trial court in this case refused to impose the penalty for two reasons. First, the trial court determined that no claim for the penalty was made as a part of the employee's complaint and that the issue was not litigated. Second, the trial court found that no evidence was presented concerning whether the employer had elected to be a self-insurer. (Such an election, if proven, would have removed the employer from the application of the penalty provision. § 25-5-8(b), Code 1975.) Concerning the trial court's finding that no claim for the penalty was made or litigated, we note the following. The employee's complaint requested such benefits as he was entitled to pursuant to the workmen's compensation laws of Alabama. Further, the court is bound to grant whatever relief is appropriate in a case based on 668 the facts proved, regardless of whether the complaint specifically demanded such relief. Rule 54(c), A.R.Civ.P.; Johnson v. City of Mobile, 475 So.2d 517 (Ala.1985). The following testimony was given by Pat Hancock, the employer's wife, who worked as a clerical employee of the employer: "MR. BAKER: When Mr. Hastings was hurt, you went to the hospital in Fort Payne and guaranteed his hospital bill, did you not? "MRS. HANCOCK: Yes, sir. "MR. BAKER: Did you tell them it was workmen's compensation? "MRS. HANCOCK: No, sir, because we didn't have workmen's comp. "MR. BAKER: You did not have any workmen's comp. coverage at the time of this injury? "MRS. HANCOCK: No, sir." ". . . "MR. MCGEE (employer's lawyer): Did you, in fact, make arrangements at the hospital for the medical bills? "MRS. HANCOCK: Yes, sir. ". . . "MR. MCGEE: Why did you do that? "MRS. HANCOCK: Well, I knew he had gotten hurt on our property and I just figured that it was because he had got hurt on our property, it was our responsibility." From this testimony, we find that the employee proved such facts as would entitle him to recover the double penalty, regardless of the fact that the employee failed to specifically request this relief in his complaint. Johnson. In short, because the employer had no workmen's compensation insurance as required by law, the penalty was due to be imposed. Rush. However, we must now examine whether the trial court's second legal conclusion correctly prevented the employee from recovering the double benefits penalty. We recognize that the provisions of § 25-5-8 do not set out who has the burden of establishing whether an employer is self insured, and, further, we note that this issue has not been previously addressed by the appellate courts of this state. However, because proof of self-insurance would prevent an employer from having to pay the double penalty provision, we find that establishing such proof should properly be the employer's burden. In Mobile Liners, Inc. v. McConnell, 220 Ala. 562, 126 So. 626 (1930), our supreme court was confronted with the question of who had the burden of proof with regard to establishing the number of employees regularly employed by an employer. In that situation, the court noted that because the code section concerning the number of employees operated to remove the employer from having to comply with workmen's compensation laws, "the burden is upon the employer to bring itself within the terms of that exception." Mobile Liners, 220 Ala. at 566, 126 So. at 629 (citation omitted). Similarly, proof of self-insurance in this case would remove the employer from having to comply with the workmen's compensation laws, and we find that "the burden is upon the employer to bring itself within the terms of that exception." Mobile Liners. Our examination of the record discloses that the employer in this case failed to offer any evidence tending to establish that he was self-insured. In fact, all of the testimony previously referred to indicates just the opposite. Likewise, we note that at the outset of the case, the employer contended he was not subject to the requirements of the workmen's compensation act because he did not have enough employees; however, the court found otherwise. The employer made no contention that he was exempt from the workmen's compensation laws due to his having been authorized by the director of industrial relations to operate as a self-insurer. Consequently, we find that the trial court erred in not applying the mandatory penalty provision of § 25-5-8(e). This case is reversed and remanded with directions that the trial court enter a judgment consistent with this opinion. *669 REVERSED AND REMANDED WITH DIRECTIONS. THIGPEN and RUSSELL, JJ., concur.	{ "pile_set_name": "FreeLaw" }
695 S.W.2d 954 (1985) STATE of Tennessee, Appellee, v. Ricky Goldie SMITH, Appellant. Supreme Court of Tennessee, at Jackson. August 12, 1985. 956 James V. Ball, Arch B. Boyd, III, Memphis, for appellant. W.J. Michael Cody, Atty. Gen. & Reporter, Ann Lacy Johns, Asst. Atty. Gen., for appellee. OPINION HARBISON, Justice. Appellant was convicted of murder in the first degree and sentenced to death by electrocution. We affirm the judgment and the sentence. In the late afternoon of April 21, 1982, appellant twice shot and killed 71-year-old Walter Allen while attempting to rob him. Appellant was at that time not quite 23 years of age. He and two other youths had been "cruising" in an automobile belonging to appellant's aunt after having taken appellant's sister to a bus stop. Thereafter they saw the victim walking along the street near his home, carrying a sack of groceries, as he did almost daily. Appellant was armed and decided to rob the victim, who was previously unknown to any of the three youths and who had not offered them any provocation whatever. Leaving his aunt's parked automobile, which was being driven by one of his cousins, appellant accosted the victim and demanded his money. The victim apparently resisted and sought to grapple with appellant or to apprehend him. Appellant shot the victim twice, either of the wounds being sufficient to cause death. Mr. Allen died a little over four hours later. Appellant did not pause to render aid, but fled, leaving his elderly victim lying helpless and bleeding on the sidewalk. Appellant returned to the automobile as did the only one of his companions who had left it. The other had remained in the driver's seat. The three were seen leaving the area at a high speed. A witness was able to furnish some description of appellant and the 15-year-old companion who had stepped out of the automobile with him. She was also able partially to describe the numbering on 957 the license plate. The automobile was discovered by police the next day and identified as belonging to appellant's aunt. It was not until November, some seven months later, in connection with an unrelated criminal incident, that police received definite information that appellant had been involved in the murder of Mr. Allen. According to testimony at a suppression hearing, one of appellant's cousins who was in custody called appellant from the police station and was assured by appellant that he, not the cousin, was responsible for the homicide. The police contacted appellant a few days later. When he returned their telephone call they took him into custody. He later gave a statement admitting that he shot and killed Mr. Allen but contending that the shooting was accidental, rather than intentional. The 15-year-old companion of appellant, Darrell Lipscomb (also known as Chuck Williams) testified at the trial. In his confession appellant stated that Lipscomb suggested the robbery and was with him when it was attempted. He later indicated to another relative that Lipscomb could have prevented the shooting but did not do so. Lipscomb, however, testified that the attempted robbery was appellant's own idea. He also testified that he had left the automobile after appellant, and that appellant accosted Mr. Allen some distance away. Lipscomb denied being present at the shooting, but testified that he heard two shots. He said that appellant then came running back to the automobile, and the three youths sped away. He stated that appellant told him that the victim had "tussled" with appellant and that appellant had then shot him twice. Appellant was taller than Lipscomb and his hair style matched the description given by the witness, Mrs. Settle, who saw the youths running from the area where Mr. Allen had fallen. Appellant did not testify at the trial or at the sentencing hearing, other than to take the stand in a jury-out hearing to confirm that he had been advised of his legal rights. In addition to admitting to Lipscomb and to the police that he had shot Mr. Allen, he also admitted doing so to his aunt, Mrs. Ella Mae McClain, who visited him at the jail. Although there were discrepancies between the testimony of Lipscomb and appellant's statement, and although strenuous efforts were made to impeach Mrs. McClain, these were issues which were submitted to and resolved by the jury. There is abundant material evidence in the record to support their verdict, and appellant's attack upon the sufficiency of the convicting evidence is without merit. Similarly without substance is the contention of appellant that the State's evidence fails to show premeditation and malice. Murder in the first degree is defined in T.C.A. § 39-2-202(a) as premeditated, willful, deliberate and malicious homicide, but it is also defined as including any murder committed in the perpetration of certain specified felonies, including robbery. Murder in the first degree is sufficiently shown by proof of a killing committed during one of these specified felonies. State v. Johnson, 661 S.W.2d 854, 860-861 (Tenn. 1983); Tosh v. State, 527 S.W.2d 146, 148 (Tenn. Crim. App. 1975). In this and in other cases it has been suggested that a change in the wording of the first degree murder statutes from "killing" to "murder" by 1977 Tenn. Pub. Acts ch. 51, § 1, had the effect of abolishing the felony-murder rule. We do not so construe the statute and did not do so in Johnson, supra, in which the homicide occurred in 1980. Appellant attacks the admissibility of his confession upon the ground that it was not voluntarily given. The trial judge, however, held a full pre-trial suppression hearing and resolved the factual issues against appellant. The record fully supports his conclusion that appellant was clearly advised of his legal rights with respect to the statement, and that the statement was voluntarily given. As previously 958 indicated, appellant had already seriously incriminated himself in a telephone conversation, monitored by the police, in which he advised his cousin that he was responsible for Mr. Allen's death and would so inform the police. At the time the investigation in this case was initiated, immediately after the shooting, the victim had not died. Initial police documents indicated that an aggravated assault had occurred, and the caption to appellant's statement contains the words "aggravated assault" rather than referring to a homicide. The context of the questioning itself, however, made it clear that the death of Mr. Allen was being investigated. We find no merit to the contention of appellant that he was in any way misled as to the nature of the potential charges against him. In his conversation with his cousin he had admitted knowing that Mr. Allen had died, and his contention that his formal statement was involuntary because of insufficient information as to the charges is entirely unpersuasive. Likewise we find no merit whatever to the suggestion made in appellant's brief that he lacked sufficient mental capacity to know or understand the statement made or the nature of the charges. In his brief counsel for appellant attacks the constitutionality of the death penalty in general and of the Tennessee statute authorizing its imposition, on eleven separate grounds. None of these has been briefed or argued, but each of them has previously been considered in detail in reported decisions of this Court. We therefore see no need to examine these assignments in detail but will briefly mention some of them. Appellant insists that the statute is deficient in not requiring notice of the aggravating circumstances to be relied upon by the State. This contention was rejected in Houston v. State, 593 S.W.2d 267 (Tenn. 1980), but, in any event, in the present case notice was given of the principal aggravating circumstance relied upon. Further, Rule 12.3(b) of the Tennessee Rules of Criminal Procedure has been amended to require such notice for trials occurring after August 22, 1984. The present trial occurred before that date. Since notice was actually given, however, and since it was not constitutionally required, we find this issue to be without merit. Also without merit is the contention that the statutes create two separate offenses so as to pose a double jeopardy problem. This issue was considered and rejected in the Houston case, and in State v. Austin, 618 S.W.2d 738, 742 (Tenn. 1981). Each of the other contentions advanced by appellant has been carefully examined in reported decisions of the Court, and we see no need to repeat those discussions here. Appellant has advanced a five-part challenge to the felony-murder rule in cases involving murder in the first degree. These contentions were considered in State v. Sheffield, 676 S.W.2d 542, 551 (Tenn. 1984), where identical arguments were considered and rejected. Many of the contentions advanced by appellant in connection with the constitutional issue are not even relevant to this case, such as the validity of some of the aggravating circumstances or the responsibility of an aider or abettor. Appellant has assigned as error the failure of the trial judge to permit individual examination of prospective jurors. There is no contention made in this case that any reversible error occurred during the lengthy jury examination. Further the trial judge indicated that he would grant individual examination if necessary, and some individual questioning was in fact permitted. This matter lay within the discretion of the trial judge, and we find no abuse of that discretion. See State v. Workman, 667 S.W.2d 44, 49 (Tenn. 1984). In two assignments of error counsel for appellant contends that reversible error occurred during closing argument at the guilt stage of the trial when one of the prosecuting attorneys undertook to remove 959 a book from counsel table and to refer to it. The book had reference to techniques in	{ "pile_set_name": "FreeLaw" }
758 F.2d 649 U.S.v.Masters 81-6657 United States Court of Appeals,Fourth Circuit. 3/7/85 1 D.S.C. AFFIRMED	{ "pile_set_name": "FreeLaw" }
Order entered April 12, 2016 In The Court of Appeals Fifth District of Texas at Dallas No. 05-15-00963-CR CORNELIUS TURNER, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 194th Judicial District Court Dallas County, Texas Trial Court Cause No. F15-52355-M ORDER The Court GRANTS appellant’s April 11, 2016 motion to extend time to file his brief. We ORDER appellant’s brief filed as of the date of this order. /s/ LANA MYERS JUSTICE	{ "pile_set_name": "FreeLaw" }
11 Cal.App.2d 357 (1936) H. B. RASMUSSEN, Respondent, v. FRESNO TRACTION COMPANY (a Corporation) et al., Appellants. Civ. No. 1745. California Court of Appeals. Fourth Appellate District. January 21, 1936. W. H. Stammer, Everts, Ewing, Wild & Everts, A. W. Carlson and Richard H. Reeve for Appellants. David E. Peckinpah and Harold M. Child for Respondent. Barnard, P. J. This is a motion to dismiss the appeal or affirm the judgment. [1] We have frequently held that such a motion should not be granted where it appears, after examination of the opening brief and the papers filed in support of the motion, that the case cannot be decided without examining the entire record. (Brown v. Gow, 126 Cal.App. 113 [14 PaCal.2d 322]; Ross v. Mahoney, 134 Cal.App. 199 [25 PaCal.2d 268]; Barr v. Hall, 9 Cal.App.2d 426 [49 PaCal.2d 1124].) At least two of the points raised on this appeal could not be decided without a complete examination of the entire record. This is virtually conceded by the respondent, whose notice of motion states that the same would be based upon the entire record on this appeal and also upon the entire record in a prior appeal. Moreover, in his argument in support of this motion he goes outside of the opening brief and the moving papers and presents matters which require a study of the entire record. An examination of the opening brief and the moving papers indicates that the questions here raised call for careful consideration and will require a thorough examination of the evidence, in all of which the court is entitled to the assistance of the respondent. The motion is denied. Marks, J., and Jennings, J., concurred.	{ "pile_set_name": "FreeLaw" }
37 F.3d 477 UNITED STATES of America, Plaintiff-Appellee,v.Samuel William DONAGHE, Defendant-Appellant. No. 93-30058. United States Court of Appeals,Ninth Circuit. Argued and Submitted Dec. 15, 1993.Decided Sept. 30, 1994. Sheryl Gordon McCloud, Seattle, WA, for defendant-appellant. Sean Connelly, U.S. Dept. of Justice, Washington, DC, for plaintiff-appellee. Appeal from the United States District Court for the Western District of Washington. Before: BROWNING, NORRIS, and O'SCANNLAIN, Circuit Judges. O'SCANNLAIN, Circuit Judge: 1 We must decide whether the district court based its upward departure from the Sentencing Guidelines on proper factors and explained adequately the extent of its departure. 2 * On November 21, 1988, Samuel Donaghe was sentenced for making a false statement in a passport application in violation of 18 U.S.C. Sec. 1542. The district court did not apply the Sentencing Guidelines, because it was unclear at that time whether they were constitutional, and sentenced him to three years of probation. Because Donaghe had a history of sexually assaulting minors--he had been convicted of four such offenses previously--the court imposed the condition, among others, that Donaghe not associate with minors without the consent of the Probation Office. 3 On March 8, 1990, the district court revoked Donaghe's probation pursuant to 18 U.S.C. Sec. 3563 because he had violated conditions of probation. Specifically, Donaghe had possessed a firearm, failed to inform the Probation Office of his new employment, associated with a minor foreign exchange student for whom he was the host parent, and been convicted in state court of solicitation to commit assault and two counts of rape. The district court then sentenced Donaghe to five years imprisonment for the passport offense, again under pre-Guidelines law. 4 On appeal, this court vacated the sentence and held that the Guidelines applied. We remanded for resentencing, specifying that the district court consider United States v. White, 925 F.2d 284 (9th Cir.1991). United States v. Donaghe, No. 92-30183, 978 F.2d 716 (Table), 1992 WL 317200, 1992 U.S.App. LEXIS 29342 (9th Cir. Sept. 15, 1992). At resentencing on January 22, 1993, the district court adopted the Presentence Report ("PSR") that calculated Donaghe's criminal history category as 1, his total offense level as 4, and the resulting sentencing range as 0-6 months. The court also adopted the PSR's recommendation to depart upward and imposed a sentence of five years imprisonment and three years supervised release. II 5 When we remanded this case for resentencing under the Guidelines, we explicitly instructed the district court not to depart from the Guidelines based on Donaghe's conduct during probation. Instead, we stated that "[i]f the district court chooses to depart it must cite factors, available to it at the original sentencing, sufficient to support its decision. It may consider Donaghe's probation-violating conduct for its effect on the weighing of those departure factors." Donaghe, 1992 WL 317200, at * 1, LEXIS 29342, at * 3. 6 We relied on White to reach this conclusion. In that case, this court held that for resentencing under 18 U.S.C. Sec. 3565,1 the district court could not use probation conduct to "directly increase a sentence." White, 925 F.2d at 286. The court stated that the district court could depart from the Guidelines range, "provided that facts warranting departure were available at the initial sentencing." Id. at 287. However, the court also noted that "probation-violating conduct is not completely irrelevant to sentencing under Sec. 3565(b)2.... [T]he sentencing court can consider the conduct in determining whether to depart from the initial guideline range.... In other words, the court cannot make additional factual findings to justify a departure, but can reconsider its original decision not to depart in light of the defendant's subsequent actions." Id. 7 The Guidelines provide two means of departing upward from a sentence range: adjusting the criminal history category when the Guidelines do not adequately reflect the seriousness of the offender's past conduct or the likelihood that he or she will commit other crimes, under U.S.S.G. Sec. 4A1.3, p.s., and adjusting the offense level to take into consideration aggravating circumstances to a kind or a degree not considered by the Guidelines, according to U.S.S.G. Sec. 5K2.0, p.s. 8 In evaluating these adjustments, the reviewing court does "not search the record for permissible reasons for departure; instead, [it] analyze[s] the reasons actually given by the district court." United States v. Montenegro-Rojo, 908 F.2d 425, 428 (9th Cir.1990). Here, the district court, for the most part, relied on the PSR to articulate the reasons for departure. The PSR listed three factors that "were known to the Court at the time of the original sentence and would have justified an upward departure." First, Donaghe had been convicted between 1967 and 1973 of several sex-related crimes involving minors. Second, at the time of the original sentencing, he was being investigated for sexual misconduct with his nephew. Finally, a 1968 psychiatric evaluation diagnosed Donaghe as having a "sexual deviation, homosexuality with pedophilia." For the upward departure to be valid, all these factors must be proper bases for departure. Id. (If the district court "considered both proper and improper bases for departure, 'we have no way to determine whether any portion of the sentence was based upon consideration of the improper factors,' and must therefore vacate the sentence and remand for resentencing") (citation omitted). 9 * As a basis for its departure, the district court relied on its determination that Donaghe's criminal history category inadequately reflected his past criminal conduct. The Guidelines do not allow past sentences of imprisonment exceeding one year and one month and occurring more than fifteen years before the sentencing date to be considered in determining a criminal history category. U.S.S.G. Sec. 4A1.2(e)(1), (3). The Guidelines do not allow any other past sentences occurring more than ten years before the sentencing date to be considered in determining a criminal history category. U.S.S.G. Sec. 4A1.2(d)(2), (3). Donaghe's misconduct occurred fifteen years prior to the initial sentencing. 10 However, the commentary to section 4A1.2 creates an exception for sentences imposed outside these time periods where the court finds "evidence of similar, or serious dissimilar, criminal conduct." U.S.S.G. Sec. 4A1.2, comment. (n. 8). If the misconduct meets this description, "the court may consider this information in determining whether an upward departure is warranted." Id. 11 * Donaghe argues that his convictions for child molestation are not similar to the instant offense of falsifying a passport application. The government has the burden of demonstrating that such similarity exists. United States v. Starr, 971 F.2d 357, 362 (9th Cir.1992). The government argues that the crimes are similar because Donaghe was motivated to falsify the passport application in order to escape an investigation into new child molestation charges. Thus, the government maintains, the crimes were "inextricably linked." 12 The government's argument must fail. Although there may be a causal link between Donaghe's tendency toward sexually abusing children and the false application--because of his criminal behavior, he was in trouble and wanted to flee the country--this does not make the two crimes similar. The government's reasoning does not comport with this court's understanding of similarity, which requires a much closer likeness. For instance, in Starr, we held that possession of stolen property and embezzlement were similar to bank robbery, because all were "crimes of theft." 971 F.2d at 362. We did not require "[i]nquiry into the specific facts of the prior convictions." Id. And, in United States v. Cota-Guerrero, 907 F.2d 87 (9th Cir.1990), we concluded that past convictions for assault with a deadly weapon and assault and battery were similar to possession of a firearm by a felon because "they show a propensity toward violence and a willingness to use force." Id. at 89. As in Starr, we did not examine the particular facts surrounding each crime but instead concentrated on their general characteristics. 13 Child molestation and passport fraud have no characteristics in common. Unlike the crimes in Starr and Cota-Guerrero, they cannot be categorized together as crimes of fraud or of violence. They are linked only by the specific circumstances of this case, a factor not viewed as relevant. The crimes, thus, are not similar under the section 4A1.2 commentary. 2 14 The commentary to section 4A1.2 also creates	{ "pile_set_name": "FreeLaw" }
Case: 11-41328 Document: 00512042106 Page: 1 Date Filed: 11/02/2012 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED November 2, 2012 No. 11-41328 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. ARTEMIO LOMAS Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 5:11-CR-770-2 Before JONES, DENNIS, and HAYNES, Circuit Judges. PER CURIAM:* A jury convicted Artemio Lomas of one count of conspiracy to possess with intent to distribute 1,000 kilograms or more of marijuana in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A) and two counts of possession with intent to distribute 100 kilograms or more of marijuana in violation of § 841(a)(1), (b)(1)(B). The district court sentenced Lomas to three concurrent terms of 151 months in prison. Lomas argues for the first time on appeal that the district * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 11-41328 Document: 00512042106 Page: 2 Date Filed: 11/02/2012 No. 11-41328 court erred in calculating the drug quantity attributable to him under the Sentencing Guidelines by using the gross weight rather than the net weight. Because Lomas did not object in the district court to the drug quantity attributed to him, our review is for plain error. United States v. Conn, 657 F.3d 280, 284 (5th Cir. 2011); United States v. Sparks, 2 F.3d 574, 589 (5th Cir. 1993). Simply put, Lomas has not demonstrated that the court used the gross weight rather than the net weight. Neither the trial testimony nor the presentence report (PSR) referenced either gross weight or net weight. Furthermore, the district court was entitled to rely on the jury’s finding that Lomas conspired to possess with intent to distribute 1000 kilograms or more of marijuana and Lomas’s admission that the facts in the PSR were correct. See United States v. Arnold, 416 F.3d 349, 362 (5th Cir. 2005); United States v. Ramirez, 557 F.3d 200, 204 (5th Cir. 2009). In light of the trial testimony, the jury’s finding, and Lomas’s admission, Lomas has not show that the district court committed any error, and certainly not clear or obvious error, when it relied on the drug quantity indicated in the PSR. See United States v. Rodriguez, 602 F.3d 346, 363 (5th Cir. 2010). AFFIRMED. 2	{ "pile_set_name": "FreeLaw" }
978 A.2d 6 (2009) 2009 VT 48 STATE of Vermont v. Timothy MUMLEY. No. 08-114. Supreme Court of Vermont. May 8, 2009. 7 Thomas Donovan, Jr., Chittenden County State's Attorney, and Pamela Hall Johnson, Deputy State's Attorney, Burlington, for Plaintiff-Appellee. Edward M. Kenney, South Burlington, for Defendant-Appellant. 8 Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ. ¶ 1. SKOGLUND, J. Defendant Timothy Mumley appeals from a jury conviction for attempted kidnapping in violation of 13 V.S.A. §§ 9, 2405(a)(1)(D). Defendant argues that the Chittenden District Court committed reversible error when it denied his motion to suppress statements he made to police while in custody. We agree, and reverse. ¶ 2. Defendant's conviction arises from an incident that occurred on October 20, 2006. On that date, defendant allegedly tried to pull a woman into his pickup truck while she was pushing her child in a stroller on a Winooski sidewalk. Defendant was arrested and taken to the Winooski Police Department, where he was questioned by a detective in an interrogation room. The entire interrogation was video-recorded. ¶ 3. Prior to questioning defendant, the detective warned defendant of his privilege against self-incrimination and his right to counsel as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and 13 V.S.A. § 5234. He read defendant his warnings one-by-one, from a Miranda-waiver form. The form listed each of the Miranda rights followed by the question "Do you understand?" and a blank space for a reply. After reciting each warning to defendant, the detective asked defendant whether he understood. Defendant replied "yes" to each of these questions. The detective recorded defendant's replies on the form. ¶ 4. Underneath the Miranda-rights portion of the form was the title "Waiver," and the following paragraph: I have been advised of my rights and I understand them. No threats or promises have been made to me. Knowing my rights, I agree to waive them and talk with you now. I understand that I am waiving my right to be represented by an attorney, to talk with an attorney before questioning and to have an attorney present during questioning. Under this paragraph was a space for the date and time and a space for a signature or "time of taping." ¶ 5. The detective did not read the entire waiver paragraph to defendant. Rather, the detective read only the following: "I have been advised of my rights and I understand them. No threats or promises have been made to me. Knowing my rights, I agree to waive ...." The detective did not provide defendant with the opportunity to read the balance of the form nor did he have defendant sign the form. The following exchange then occurred: Detective: Do you want to talk to me? Defendant: What about? Detective: Ah, what, ah ... you can talk to me, you can tell me to pound sand. You know, those are your rights, okay? Now, it doesn't affect them one way or the other. What I'm concerned about is that, I want to make sure, you know, what happened tonight, you be given an opportunity to, you know, explain your actions which will happen in a court of law. But this is also an opportunity for you, if you want it, you can write down a sworn statement and apologize for what happened tonight. That's something. It's your choice you know. Defendant: Which is what? Detective: Do you understand what is going on here at all? Defendant: No, no, I don't. Detective: Well, as I stated over at your apartment, you're under arrest for attempted kidnapping. Defendant: Okay. 9 ¶ 6. The detective made no more attempts to secure a waiver of defendant's rights to silence and to an attorney. Eventually, defendant answered some of the detective's questions. ¶ 7. Defendant sought to suppress the statements he made during the interrogation. In his motion to suppress, defendant argued that he did not waive his rights, or, in the alternative, that the waiver was invalid under Miranda. Defendant also argued that the detective violated his rights by failing to secure a recorded waiver as required by 13 V.S.A. § 5237. Section 5237 provides that a person who has been informed of his or her right to counsel as required by § 5234 may waive those rights: in writing, or by other record, ... if the court, at the time of or after waiver, finds of record that he has acted with full awareness of his rights and of the consequences of a waiver and if the waiver is otherwise according to law. The court shall consider such factors as the person's age, education, and familiarity with the English language, and the complexity of the crime involved. 13 V.S.A. § 5237. The State responded, arguing that, considering the totality of the circumstances, defendant knowingly and intelligently waived his Miranda rights, and that defendant's waiver was valid under § 5237 because it was video-recorded. ¶ 8. The district court denied defendant's motion. It concluded that "assuming the court finds that defendant possessed the requisite experience, education, background, and intelligence to understand the nature of his Miranda rights and the consequences of waiving them," defendant made a valid implicit waiver of his Miranda rights. The court then concluded that because this waiver was recorded on video it was valid under § 5237. ¶ 9. At trial, the complainant testified that defendant tried to pull her into his black pickup truck while she was pushing her child in a stroller on a sidewalk, returning home from the post office. She further testified about the encounter as follows. As the complainant walked north on Weaver Street, defendant started following her in his truck, making rude, sexually suggestive remarks, and asking her if she wanted a ride. She was walking northward on the west side of Weaver Street, and defendant was travelling northward in the wrong lane of traffic, weaving around parked cars, so that he was in the lane of traffic adjacent to her. During this portion of the encounter the complainant threatened to call the police. At some point, defendant proceeded ahead of her to the intersection of Weaver and Union Streets and turned left onto Union Street. She proceeded to the same intersection, crossed Union Street, and turned left, walking on the north side of Union Street. While the complainant was walking on Union Street, defendant, who was ahead of her, turned around in a driveway, drove back toward her, then crossed into the wrong lane of traffic again, stopped the truck, and attempted to grab her and pull her into his pickup. Defendant drove off when the driver of a green Ford in the oncoming lane of Union Street honked the horn twice. ¶ 10. One eyewitness testified for the State. The witness testified that while traveling north on Weaver Street in her green Ford Taurus, she noticed that traffic had stopped because of a dark pickup truck that had stopped in the middle of the road two cars in front of her. She testified that the man in the pickup truck was speaking with someone on the sidewalk. According to the witness, after she honked her horn twice, the truck "took off," and the witness then observed the complainant, "visibly upset ... motoring towards the 10 end of [Weaver] [S]treet." In contrast to the complainant's testimony, the witness testified that the truck did not turn left on Union Street, but rather either continued straight or turned right, and that the witness did not turn left on Union Street. The witness testified that after observing the encounter she continued straight on Weaver Street. ¶ 11. The arresting officer and a detective also testified for the State. The officer testified that defendant's truck and license plate number matched the description given by the complainant. The detective testified that the complainant correctly identified defendant in a photo lineup. The detective also testified that, during the interrogation at the police station, defendant admitted: (1) that he had seen the complainant; (2) that he had driven by her several times; (3) that the complainant spoke to him; (4) that the complainant told defendant that she was calling the police; and (5) that, when asked why the complainant would threaten to call the police, defendant replied that he did not know. ¶ 12. At trial, the defense argued that the complainant's story was improbable and that neither defendant nor the eyewitness made a left on Union Street toward the site of the alleged attempted kidnapping. ¶ 13. On appeal, defendant argues that he did not make a valid waiver of his Miranda rights because: (a) silence in response to a request to waive does not constitute waiver; and (b) the court failed to properly apply the totality-of-the-circumstances approach articulated in State v. Malinowski, 148 Vt. 517, 518-20, 536 A.2d 921, 922-23 (1987). Defendant also argues that the waiver was invalid under § 5237 because: (a) that section requires waivers to be affirmative, express, and recorded; and (b) the trial court failed to consider the factors set forth in the statute. Finally, defendant makes several arguments regarding the court's refusal to viewor to allow the jury to viewthe vehicle defendant was driving at the scene of the alleged crime. We agree with defendant that the court erred in not evaluating	{ "pile_set_name": "FreeLaw" }
255 F.2d 929 Frank CASTILLO, Jr., et al.v.Honorable Carl A. HATCH, United States District Judge for the District of New Mexico. No. 5869. United States Court of Appeals Tenth Circuit. May 14, 1958. On application for leave to file petition for writ of mandamus. Joseph L. Smith, Henry A. Kiker, Jr., and Patricio S. Sanchez, Albuquerque, N. M., for petitioners. John D. Robb, Albuquerque, N. M., for respondent. Before BRATTON, Chief Judge, and PHILLIPS and BREITENSTEIN, Circuit Judges. PER CURIAM. 1 Leave to file petition for writ of mandamus denied.	{ "pile_set_name": "FreeLaw" }
628 So.2d 773 (1993) George D. EUBANKS v. Jo Ann HALL. AV92000080. Court of Civil Appeals of Alabama. July 23, 1993. 774 D.E. Brutkiewicz, Jr., of Brutkiewicz Attorneys, Mobile, for appellant. Samuel N. Crosby and L. Brian Chunn of Stone, Granade, Crosby & Blackburn, P.C., Bay Minette, for appellee. THIGPEN, Judge. This is a malicious prosecution case. Jo Ann Hall filed suit against George D. Eubanks in September 1991, charging him with malicious prosecution and seeking $1 million in damages. She alleged that the complaint resulted from an arrest warrant which Eubanks had sworn against Hall, charging her with criminal charges, and that she sustained damages, including legal expenses, although the criminal proceedings terminated in her favor. Following a jury trial, the jury returned a verdict favoring Hall in the amount of $10,000, and the trial court entered a judgment accordingly. Eubanks appeals. Eubanks contends on appeal that the trial court erred in allowing certain testimony to be admitted at trial; that the trial court erred in denying his motion for a directed verdict; and that the trial court improperly refused to use his proffered jury instructions regarding punitive damages. At the outset, we note that jury verdicts are presumed to be correct. Uphaus v. Charter Hospital of Mobile, 582 So.2d 1140 (Ala.Civ.App.1991). Malicious prosecution actions, however, are not favored in law, and face stringent limitations. Uphaus, supra. The elements of an action for malicious prosecution are: "(1) a judicial proceeding initiated by the defendant; (2) the lack of probable cause; (3) malice on the part of the defendant; (4) termination of the judicial proceeding favorably to the plaintiff; and, (5) damages." Empiregas, Inc., of Elberta v. Feely, 524 So.2d 626, 627 (Ala.1988). Testimony adduced at trial reveals that Eubanks apparently was tried in an August 1991 criminal proceeding, and, according to Hall, her husband testified against Eubanks. There is testimony that afterwards, Eubanks reportedly threatened to "get" the witnesses who testified against him. Hall testified that approximately one month after Eubanks's trial, she and another woman were cleaning crabs on Hall's property on Tensaw Island when Eubanks's son and his cousin began travelling on the river, yelling obscenities. Hall testified that when she and the other woman got into a boat to bait the crab baskets in the river, Eubanks's son and nephew deliberately maneuvered close to Hall's boat, splashing Hall with water. She testified that Eubanks's son was on a "kneeboard" and was riding in the water behind the boat, and that at that time, they came so close that she believed that their boat would hit them. She stated that he fell from the kneeboard, and that she and the other woman drove the boat over to him and accused him of trying to run over them. They then told the boys that they were going to call the water patrol. At trial, Eubanks's nephew disputed Hall's version of events. Eubanks's nephew testified that after the alleged incident, he called the police for Eubanks's son, and that Eubanks's son told the police that Hall cursed them, and that there was a paddle and gun involved. The nephew also testified that Eubanks actually signed the complaint at the police's behest, because Eubanks's son and nephew were too young to sign the complaint. Although Hall was charged with harassment and menacing, the trial court granted Hall's motion for judgment of acquittal in September 1991, and Hall filed suit against Eubanks for malicious prosecution that same month. Eubanks first contends that the trial court erred in admitting, over his objection, testimony regarding his prior acts. Jerry Crowe, another witness in Eubanks's criminal trial, testified that after that trial, Eubanks harassed him in various ways, including discharging firearms near Crowe's house, making numerous phone calls to him, and by harassing him while driving. A person's character, when offered for the purpose of showing his conduct on a specific occasion, 775 may not be proven by evidence of his specific acts or conduct. Mayfield v. State, 591 So.2d 143 (Ala.Crim.App.1991); C. Gamble, McElroy's Alabama Evidence, § 26.01 (4th ed. 1991). Hall argues that Crowe's testimony was proffered not to show that Eubanks acted in conformity therewith in signing the complaint, but rather to establish Eubanks's malice towards the witnesses who testified against him at his criminal trial. Malice, for purposes of a malicious prosecution action, may be inferred from want of probable cause or it may be inferred from the circumstances surrounding and attending prosecution. Thompson v. Kinney, 486 So.2d 442 (Ala.Civ.App.1986). "This is because malice is incapable of positive, direct proof and must out of necessity be rested on inferences and deductions from facts which are heard by the trier of fact." Thompson at 445. The element of malice may be inferred from the conduct of the defendant if no other reasonable explanation exists for his actions. Johnson v. Smith, 503 So.2d 868 (Ala.Civ. App.1987). Therefore, Crowe's testimony was admissible for the narrow purpose of establishing Eubanks's malice towards the witnesses. Eubanks next contends that the trial court erred in refusing to grant his motion for a directed verdict. A directed verdict in favor of a defendant is proper only when there is no evidence to support one or more of the elements in the plaintiff's cause of action. Smith v. Wendy's of the South, Inc., 503 So.2d 843 (Ala.1987). Eubanks argues that Hall had failed to prove he lacked probable cause for instigating the judicial proceedings against Hall. Probable cause is the state of facts which would lead a person of reasonable prudence to honestly believe that the claims put forth in the prior suit would prevail. Empiregas, supra. The issue of probable cause must go to a jury when the material facts are in dispute, as in this case. Harris v. Harris, 542 So.2d 284 (Ala.Civ.App.1989). The question of probable cause being a jury question, the trial court properly refused Eubanks's motion for a directed verdict. Eubanks last contends that the trial court erred in refusing to give one of his jury instructions. Specifically, the trial court refused Eubanks's request to charge the jury that in order to award punitive damages, the jury must find by "clear and convincing evidence" that he lacked probable cause to instigate criminal proceedings against Hall. Eubanks cites Ala.Code 1975, § 12-21-12(a), in support of this contention; however, this section establishes the "substantial evidence" rule for testing the sufficiency of evidence in rulings by the trial court and does not apply to the instant case. It appears that Eubanks intended to cite Ala.Code 1975, § 6-11-20, as requiring that the absence of probable cause be proven by clear and convincing evidence in awarding punitive damages. We find, however, that this statute requires "clear and convincing evidence" only for awarding punitive damages in cases of oppression, fraud, wantonness, or malice. Ala.Code 1975, § 6-11-20(a). Nowhere does this statute require that the absence of probable cause be proven by the same standard. Moreover, we find that the issue of punitive damages was properly submitted to the jury. See Delchamps, Inc. v. Larry, 613 So.2d 1235 (Ala.1992). A court cannot be reversed for its refusal to give a charge that is not expressed in the exact and appropriate terms of the law. Johnston v. Byrd, 279 Ala. 491, 187 So.2d 246 (1966). The trial court instructed the jury that it must be "reasonably satisf(ied)" that Eubanks had no probable cause to instigate the action against Hall, and this was not reversible error. See also Alabama Pattern Jury Instructions, § 24.05. Based on the foregoing, we find that the judgment of the trial court is due to be affirmed. AFFIRMED. ROBERTSON, P.J., and YATES, J., concur.	{ "pile_set_name": "FreeLaw" }
506 So.2d 66 (1987) James L. PERCIVAL, Appellant, v. STATE of Florida, Appellee. Nos. 85-2338 to 85-2345. District Court of Appeal of Florida, Second District. April 29, 1987. James Marion Moorman, Public Defender, and D.P. Chanco, Asst. Public Defender, Bartow, for appellant. Robert A. Butterworth, Atty. Gen., Tallahassee, and Candance M. Sunderland, Asst. Atty. Gen., Tampa, for appellee. PER CURIAM. Appellant, James L. Percival, appeals the judgments and sentences entered in eight cases. We find that the trial court erred by requiring appellant's sentences to be served consecutively to an undetermined sentence to be imposed at an undetermined time in the future by a court in another county. We, accordingly, remand with instructions to strike that requirement from the judgments and sentences, but affirm in all other respects. Appellant was originally placed on probation for two years in Hillsborough County after pleading nolo contendere to the charge of dealing in stolen property. Less than five months later, the state filed seven informations in Hillsborough County charging appellant with ten counts of robbery and one count of attempted robbery. Appellant pled nolo contendere to these charges in exchange for the trial court's agreement that he would not be sentenced to serve more than fifteen years in prison. Although the guidelines scoresheet is not contained in the record, the record reveals that the prosecutor advised the trial court at sentencing that appellant's scoresheet reflected a presumptive sentence of twelve to seventeen years. Defense counsel neither disagreed with nor objected to the prosecutor's statement. The trial court denied the state's request to depart from the presumptive sentence and, pursuant to its agreement with appellant, imposed five years imprisonment for dealing in stolen property and fifteen years imprisonment for each of the other eleven charges. All of the sentences were to be served concurrently. Over defense counsel's *67 objection, however, the trial court granted the state's request to require these sentences to be served consecutively to a sentence to be imposed at a later date on charges pending against appellant in Pinellas County. Appellant filed timely notices of appeal which have been consolidated for purposes of appeal. We reject appellant's contention that we must remand for resentencing because there is no scoresheet in the record. Appellant's sentences were entered pursuant to an agreement with the trial court. See Lawson v. State, 497 So.2d 288 (Fla. 1st DCA 1986); Rowe v. State, 496 So.2d 857 (Fla. 2d DCA 1986), petition for review granted, No. 69-606 (Fla. March 20, 1987). Additionally, the record reflects that a scoresheet was prepared, that the trial court was informed of appellant's score and presumptive sentence, and that the trial court did not depart from the presumptive sentence. The mere absence of the scoresheet in the record is, therefore, irrelevant. See Davis v. State, 461 So.2d 1361 (Fla. 2d DCA), petition for review denied, 471 So.2d 43 (Fla. 1985). We agree, however, with appellant's contention that the trial court erred in requiring his sentences to be served consecutively to a sentence which had not yet been imposed on other charges pending against him. The sentence imposed by a trial court must commence on a definite date, Keel v. State, 321 So.2d 86 (Fla. 2d DCA 1975), and may only be required to be served consecutively to an existing sentence. See Richardson v. State, 432 So.2d 750 (Fla. 2d DCA 1983); Teffeteller v. State, 396 So.2d 1171 (Fla. 5th DCA 1981). In this case, the trial court did not know when, if ever, the Pinellas County sentence would be imposed or what length the sentence would be. Under these circumstances, the trial court erroneously ordered appellant's sentences to be served consecutively to an undetermined sentence to be imposed at an undetermined time in the future. We, accordingly, remand with instructions that the trial court strike that portion of appellant's sentences which requires the sentences to run consecutively to appellant's expected Pinellas County sentence. We affirm the judgments and sentences in all other respects. Affirmed in part, reversed in part, and remanded. DANAHY, C.J., and SCHOONOVER and SANDERLIN, JJ., concur.	{ "pile_set_name": "FreeLaw" }
Case: 11-30209 Document: 00511890671 Page: 1 Date Filed: 06/18/2012 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED June 18, 2012 No. 11-30209 Summary Calendar Lyle W. Cayce Clerk SEAN C. WALKER, Plaintiff-Appellant v. JEFFREY TRAVIS, Warden, Rayburn Correctional Center; BESSIE CARTER, Director of Nursing at B.B. Sixty Rayburn Correctional Center; LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, Secretary, Defendants-Appellees Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:09-CV-4361 Before HIGGINBOTHAM, GARZA, and ELROD, Circuit Judges. PER CURIAM:* Sean C. Walker, Louisiana prisoner # 126912, appeals the dismissal of his 42 U.S.C. § 1983 complaint against numerous defendants, including the head of administration of B.B. Sixty Rayburn Correctional Center (the head of administration). Walker asserted that the defendants were deliberately indifferent to his safety and to his medical needs after he was attacked and * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 11-30209 Document: 00511890671 Page: 2 Date Filed: 06/18/2012 No. 11-30209 injured by his cellmate. The district court dismissed Walker’s complaint as frivolous and/or for failure to state a claim upon which relief could be granted; however, the judgment failed to mention Walker’s claims against the head of administration, although it specifically dismissed Walker’s claims against the other defendants. Under 28 U.S.C. § 1291, federal appellate courts have jurisdiction to hear appeals from “‘final decisions’” of district courts. Witherspoon v. White, 111 F.3d 399, 401 (5th Cir. 1997). Generally, a judgment adjudicating the rights of fewer than all of the parties is not a final decision in the absence of a Federal Rule of Civil Procedure 54(b) certification directing entry of final judgment as to those parties. Federal Sav. & Loan Ins. Corp. v. Tullos-Pierremont, 894 F.2d 1469, 1471 (5th Cir. 1990). In circumstances in which a court order is ambiguous as to what parties and claims are being disposed of and “the district court clearly intend[ed] to effect a final dismissal of a claim, we will construe [the district court’s] order accordingly, despite ambiguous language that might indicate otherwise.” Picco v. Global Marine Drilling Co., 900 F.2d 846, 849 n. 4 (5th Cir.1990). The head of administration was served with Walker’s complaint and amended complaint; thus, he was a party to the suit. See Nagle v. Lee, 807 F.2d 435, 440 (5th Cir. 1987). Although the district court’s judgment was silent regarding Walker’s claims against the head of administration, the court might have intended that the judgment be final in light of the fact that the district court also denied Walker’s motion for leave to amend the complaint to substitute Robert C. Tanner as the head of administration because Walker had failed to state a claim against Tanner. See Picco, 900 F.2d at 849 n. 4. We conclude that we should order a limited remand to allow the district court to indicate whether the judgment of February 2, 2011, was intended to be the final judgment in this case, and if not, for the court to determine whether or not it now will enter a final judgment. 2 Case: 11-30209 Document: 00511890671 Page: 3 Date Filed: 06/18/2012 No. 11-30209 IT IS ORDERED that a limited remand occur for the district court to enter an order or judgment as indicated. Proceedings on this appeal are stayed pending the receipt of the district court’s order or other response. 3	{ "pile_set_name": "FreeLaw" }
[PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT October 2, 2006 No. 05-11420 THOMAS K. KAHN ________________________ CLERK D. C. Docket No. 97-00238-CR-DLG UNITED STATES OF AMERICA, Plaintiff-Appellee, versus GREGORIO MACHADO, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida _________________________ (October 2, 2006) Before TJOFLAT and CARNES, Circuit Judges and HODGES,* District Judge. CARNES, Circuit Judge: * Honorable William Terrell Hodges, United States District Judge for the Middle District of Florida, sitting by designation. I. In March 1997 a grand jury indicted Gregorio Machado on thirteen counts of conspiracy to launder drug proceeds. The indictment included a forfeiture count pursuant to 18 U.S.C. § 982. After reaching a plea agreement with the government, Machado entered a guilty plea in May 1997. The written plea agreement contained an appeal waiver provision and a detailed forfeiture provision through which Machado pledged “to fully and unreservedly cooperate and assist the United States in the forfeiture and recovery of the forfeited assets, portions thereof, or their substitutes wherever located.” That provision included a detailed list of all the money and items that were to be forfeited. Machado says that the value of those listed items was approximately $12 million at the time of the indictment. On July 28, 1997, the district court sentenced Machado to 51 months imprisonment. At sentencing, the Assistant United States Attorney representing the government moved to dismiss eleven of the thirteen counts of the indictment in accordance with the plea agreement, and stated that “[t]he United States has not dismissed Count I or the forfeiture count at the very end.” The court responded, “Count II through XI[I] are dismissed. Count I and the forfeiture count remain in full force and effect.” The formal judgment in the case, which was entered on July 2 30, 1997, recited the numbers of the counts that had been dismissed, stated that the defendant had pleaded guilty to Count 1, and accordingly adjudged him guilty of conspiracy to launder money, and sentenced him to a term of 51 months. The only mention of forfeiture in the judgment entry is this sentence: “A separate Forfeiture order shall be entered in this cause.” On March 11, 1998, about seven months later the government filed a motion for an order of forfeiture. The following day the district court granted the motion and entered a preliminary order of forfeiture. On the government’s motion, the district court on April 24, 1998 entered an amended order to include additional property. A final order of forfeiture was entered on July 14, 1998, nearly a year after sentencing. Machado did not attempt to appeal any of those orders, including the final order of forfeiture. Instead, on September 4, 1998, about six weeks after entry of the final order, he filed a pro se motion for return of property pursuant to Fed. R. Cr. P. 41(e), requesting a return of “all documents and records seized or taken from the movant, his businesses, and residence that were used as evidence in the criminal and [forfeiture] actions.” In that motion Machado claimed that the documents he sought would reveal that some of his property had been improperly forfeited. At a hearing on January 20, 1999, the district court ordered the documents returned to 3 Machado. The government could not fully comply because some of the original documents were destroyed, but it ultimately returned others to Machado. Machado filed a pro se motion for sanctions which was ultimately denied. On April 23, 2003, three months shy of five years after entry of the final order of forfeiture, Machado filed under Rule 60(b)(4) a pro se motion for relief from that order “in light of this Circuit’s decision in United States v. Petrie, 302 F.3d 1280, 1284–85 (11th Cir. 2002).” Machado contended that because the district court had not entered the final order of forfeiture until twelve months after he was sentenced, it lacked jurisdiction to do so, and for that reason the order must be vacated. Because the district court had previously issued an order prohibiting the parties from filing any new motions until all pending motions were resolved, the district court denied that motion. Machado appealed, but we affirmed after concluding that the denial of his Rule 60(b)(4) motion on that ground was not an abuse of discretion. We never reached the merits of Machado’s claim. On May 17, 2004, Machado filed pursuant to Rule 60(b) another motion to vacate the forfeiture order. After the district court denied that motion a week later, we affirmed on November 17, 2004, explaining that Rule 60(b) cannot be used to challenge criminal forfeiture orders. Again, we did not reach the merits of Machado’s claim. 4 On December 17, 2004, which was six years and five months after the final order of forfeiture was entered, Machado filed yet another pro se motion seeking return of the forfeited property. This one asserted that he was proceeding under Fed. R. Cr. P. 41(g) and the All Writs Act, 28 U.S.C. § 1651(a). In February 2005 the district court denied the motion in a three-sentence order: “This cause came before the Court upon Defendant’s Motion for Return of Property Pursuant to Fed. R. Crim. P. Rule 41(e) . . . filed December 17, 2004. The Court having reviewed the pertinent portions of the record, and being otherwise fully advised in the premises, it is ordered and adjudged that Defendant’s Motion for Return of Property is Denied. Done and ordered in Chambers, at Miami, Florida this 7th Day of February, 2005.” Thereafter Machado filed his notice of appeal, and we appointed counsel to represent him. II. At the heart of all Machado’s arguments and efforts is his contention that the district court lacked subject matter jurisdiction to enter the final order of forfeiture nearly a full year after the judgment incorporating the sentence had been entered. Federal Rule of Criminal Procedure 32(d)(2), which was in effect when Machado was sentenced, stated that: “At sentencing, a final order of forfeiture shall be made part of the sentence and included in the judgment.” Fed. R. Cr. P. 32(d)(2) (1997). 5 Machado contends that the district court’s failure to comply with Rule 32(d)(2) when it sentenced him on July 28, 1997 means that the court lost jurisdiction to enter a forfeiture order, and did not have the power to do so when it attempted to enter the order of forfeiture on July 14, 1998. The government’s position is that Rule 32(d)(2) is not jurisdictional, and instead is a claim-processing rule that can be forfeited if the party waits too long to raise the argument, as Machado did. See United States v. Eberhart, _____ U.S. ____, ____, 126 S. Ct. 403, 405-07 (2005). We lack jurisdiction to decide the issue of whether the district court had jurisdiction to belatedly enter the final order of forfeiture. Federal Rule of Appellate Procedure 4 requires a criminal litigant who makes an appeal as of right to file a notice of appeal “within 10 days after the later of . . . the entry of either the judgment or the order being appealed . . . .” Fed. R. App. P. 4(b)(1)(A)(i). Under that rule the district court may extend that ten day period by up to thirty days if a party shows excusable neglect. Fed. R. App. P. 4(b)(4). Even if there is excusable neglect the latest a defendant may wait before appealing a final order in a criminal case is forty days after it was entered. See id. Filing a timely notice of appeal is “mandatory and jurisdictional” and if a defendant fails to do so, a court of appeals is “without jurisdiction to review the decision on the merits.” See Budinich v. Becton Dickinson and Co., 486 U.S. 196, 6 203, 108 S. Ct.	{ "pile_set_name": "FreeLaw" }
206 Ga. 477 (1950) 57 S.E.2d 578 CAPITOL DISTRIBUTING COMPANY et al v. REDWINE, Revenue Commissioner; et vice versa. 16887, 16901. Supreme Court of Georgia. January 12, 1950. Rehearing Denied February 17, 24, 1950. 483 MacDougald, Troutman, Sams & Schroder, and Dan MacDougald Jr., for plaintiffs. Eugene Cook, Attorney-General, and M. H. Blackshear Jr., Assistant Attorney-General, for defendant. CANDLER, Justice. (After stating the foregoing facts.) 1. There is set out above a copy of the enrolled act as attached to and made a part of the petition as amended. As enrolled the act shows on its face that taxation on wines is included in the title and in the body. The plaintiffs in error contend that there were irregularities during the process of the legislation such as to controvert any valid reference to wines in the title. A portion of the petition as amended alleges in substance that the words, "to increase the excise taxes upon domestic wines, foreign wines, and domestic and foreign fortified wines," were neither read before nor voted on by the legislature nor did they appear in the title when the bill was before the legislature. Instead, it is contended that those words were composed and inserted by some agency or method other than the joint action of the two houses after the bill was voted on and passed. Further, it is contended that the words, "and that the caption be amended accordingly," were written underneath the body of the amendment, but that the same were not constitutionally sufficient to authorize the first above-quoted words which were written into the title. The petition as amended attempts to show the facts relied on by photostatic copies of the bill, its amendment during process of passage, and Legislative Journal entries. Involved in these contentions there are several provisions of the 484 State Constitution, alleged to be violated, as follows: article III, section 1, paragraph 1 (Code, Ann. § 2-1301), reading: "The legislative power of the State shall be vested in a General Assembly which shall consist of a Senate and House of Representatives," the contention being that the alleged new matter inserted in the manner alleged constitutes an unlawful delegation of legislative authority in violation thereof; article III, section VII, paragraph VII (Code, Ann. § 2-1907), reading: "Every bill, before it shall pass, shall be read three times, and on three separate days, in each House, unless in cases of actual invasion, or insurrection, but the first and second reading of each local bill, shall consist of the reading of the title only, unless said bill is ordered to be engrossed," it being contended that, the entire act not being read, this clause was violated; article III, section VII, paragraph VII (Code, Ann. § 2-1908), reading: "No law shall pass which refers to more than one subject matter, or contains matter different from what is expressed in the title thereof," the contention in this connection being that the act having made reference in the body to wines, without having reference to the same in the title, is in violation of this provision; and article I, section I, paragraph III (Code, Ann. § 2-103), reading: "No person shall be deprived of life, liberty, or property, except by due process of law," it being contended that the legislature undertook to have the caption changed after the act passed and did so in terms so vague, uncertain, and indefinite as not to apprise anyone thereof. Before a determination of the questions above presented, it is obvious that consideration must be given to the effect thereon of the decisions of this court on the principle commonly known as the conclusive presumption of an enrolled act. In Atlantic Coast Line R. Co. v. State, 135 Ga. 545 (69 S. E. 725), it was held: "A duly enrolled act properly authenticated by the regular presiding officers of both houses of the General Assembly, approved by the Governor, and deposited with the Secretary of State as an existing law, will be conclusively presumed to have been enacted in accordance with the constitutional requirements; and it is not permissible to show, by the legislative journals or other records, that it did not receive on its passage a majority vote of all the members elected to each house, or that there was 485 any irregularity in its enactment." See also DeLoach v. Newton, 134 Ga. 739 (68 S. E. 708), and Williams v. MacFeeley, 186 Ga. 145 (197 S. E. 225). A case cited and relied on by the plaintiffs in error is Solomon v. Commissioners of Cartersville, 41 Ga. 157. It held that an act of the General Assembly signed by Rufus B. Bullock, Governor, May 26, 1869, was invalid because it was not signed within the time prescribed by the Constitution. The Solomon case, supra, was cited in DeLoach v. Newton, supra, and the court, after discussing the possible uses of the legislative journals, said: "A possible use for them might arise on the construction of an act. In Solomon v. Commissioners of Cartersville, 41 Ga. 157, the journals of the General Assembly were consulted to ascertain when the legislature adjourned. In Gormley v. Taylor, 44 Ga. 76, a query was put on this subject." Evidently the court in DeLoach v. Newton, supra, did not consider the case of Solomon v. Commissioners of Cartersville, supra, any obstacle to reaching its decision. Neither do we, in this case, find anything in it to prevent us from following DeLoach v. Newton, Atlantic Coast Line R. Co. v. State, and Williams v. MacFeeley (supra), in circumstances where, as in the present case, the attempt is to impeach a legislative act in reference to matters alleged to have transpired before the signing of the bill by the Governor, and where the issue is not whether or not the Governor did actually sign the bill within the time required by the Constitution. The plaintiffs in error argue that the decided cases in this State on the question of conclusive presumption of an enrolled act do not, as to any of them, embrace a situation exactly like that presented by the facts in the instant case. If not in exact detail with the facts here involved, the principles in the cited cases upholding the conclusive presumption doctrine are sufficiently controlling for us to adhere to the same rule in this case. Thus, we reach the conclusion that where, as in this case, a copy of an enrolled act purporting to contain the signatures of the Speaker of the House, Clerk of the House, President of the Senate, Secretary of the Senate, and the Governor, is set out and made a part of the amended petition, which seeks to show invalidity upon the contention that a portion of the title was composed and inserted by some method or agency in an irregular manner during the process of its passage, neither the 486 legislative journals nor photostatic copies of the bill are permissible to impeach the act, because of the conclusive presumption against any irregularity in its enactment; and, accordingly, this court cannot consider violations of the State Constitution that are dependent on being so shown. 2. The act is assailed as being in violation of article III, section VII, paragraph VIII of the State Constitution (Code, Ann. § 2-1908), particularly the portion thereof reading, "No law shall pass which refers to more than one subject matter," because, as the plaintiffs in error contend, it embraces legislation on "malt beverages" and "wines." Specifically it is contended that the regulation, control, and taxation of malt beverages is a separate subject-matter from that of wines. Seeking to illustrate, it is insisted that they have been dealt with as a separate series of legislation; that in certain court decisions the term "malt beverages" has been held not to include "wines"; that legislative declarations in the wine act of 1935, to the effect that the same was to promote temperance and prosperity of the people of Georgia and foster the growing of grapes, fruits, and berries on Georgia farms, indicate that wines are recognized by the legislature as being in a different subject-matter category from that of malt beverages; and that executive and administrative treatment has recognized them as separate. The "subject" of an act, within the meaning of the constitutional provision that no act shall contain more than one subject, is regarded as the matter or thing forming the groundwork of the act. Lloyd v. Richardson, 158 Ga. 633 (124 S. E. 37); 50 Am. Jr. 172, § 191; Mayes v. Daniel, 186 Ga. 345, 353 (198 S. E. 535). In Whitley v. State, 134 Ga. 758 (68 S. E. 716), involving an act of 1907 to prohibit the manufacture, sale, and other things relating to various named forms of alcoholic liquors or drinks, the dual subject-matter provision of the State Constitution was invoked and held not to be applicable, it being pointed out that "all these things were germane to and formed a part of the general purpose of the act. They were not so entirely distinct and different as to constitute different subject-matters within the meaning of the paragraph of the constitution." See also Carroll v. Wright, 131 Ga. 728 (63 S. E. 260). Looking to the language of the act in the instant case, the general purpose is illustrated by words and figures *487 that unmistakably stand out as indicating that an increase in excise taxes is the thing chiefly sought. Whatever may have been the reasons prompting the legislature in the year 1935 to	{ "pile_set_name": "FreeLaw" }
278 U.S. 282 (1929) BOTANY WORSTED MILLS v. UNITED STATES. No. 31. Supreme Court of United States. Submitted April 23, 1928. Argued November 20, 1928. Decided January 2, 1929. CERTIORARI TO THE COURT OF CLAIMS. 283 Mr. Nathan A. Smyth for petitioner. Solicitor General Mitchell for the United States. 284 A brief on behalf of Mr. A.G. Lacy, as amicus curiae, was filed by special leave of Court on motion of the Solicitor General. MR. JUSTICE SANFORD delivered the opinion of the Court. The Botany Worsted Mills, a New Jersey corporation engaged in the manufactured of woolen and worsted fabrics, made a return of its net income for the taxable year 1917 under the Revenue Act of 1916[1] and the War Revenue Act of 1917.[2] By § 12(a) of the Revenue Act it was provided that in ascertaining the net income of a corporation organized in the United States there should be deducted from its gross income all "the ordinary and necessary expenses paid within the year in the maintenance and operation of its business and properties." Under this provision the Mills deducted amounts aggregating $1,565,739.39 paid as compensation to the members of its board of directors, in addition to salaries of $9,000 each. It paid an income tax computed in accordance with this return. Thereafter, in 1920, the Commissioner of Internal Revenue assessed an additional income tax against it. Of this, $450,994.06 was attributable to his disallowance of $783,656.06 of the deduction claimed as compensation paid to the directors, on the ground that the total amount paid as compensation was unreasonable and the remainder of the deduction as allowed represented fair and reasonable compensation. The Mills, after paying the additional tax, filed a claim for refund of this $450,994.06. The claim was disallowed; and the Mills thereafter, in September 1924, by a petition in the Court of Claims sought to recover this sum from the United States, with 285 interest alleging that the disallowance of part of the compensation paid the directors was illegal.[3] After a hearing on the merits the court, upon its findings of fact, dismissed the petition upon the ground that the additional tax was imposed under an agreement of settlement which prevented a recovery. 63 C. Cls. 405. And this writ of certiorari was granted. The first question presented is whether the Mills is precluded from recovering the amount claimed by reason of a settlement. Sec. 3229 of the Revised Statutes,[4] provides that: "The Commissioner of Internal Revenue, with the advice and consent of the Secretary of the Treasury, may compromise any civil or criminal case arising under the internal-revenue laws instead of commencing suit thereon; and, with the advice and consent of the said Secretary and the recommendation of the Attorney-General, he may compromise any such case after a suit thereon has been commenced. Whenever a compromise is made in any case there shall be placed on file in the office of the Commissioner the opinion of the Solicitor of Internal Revenue, . . . with his reasons therefor, with a statement of 286 the amount of tax assessed, . . . and the amount actually paid in accordance with the terms of the compromise."[5] The Government did not claim that there had been a compromise under this statute, but contended in the Court of Claims that, irrespective thereof, an agreement of settlement had been entered into between the Mills and the Commissioner under which the Mills had accepted the partial disallowance as to the compensation paid the directors, and had also received concessions as to other disputed items the benefit of which it still enjoyed, and was therefore estopped from seeking a recovery. As to this matter the findings of fact show that after the Mills had paid the amount of the tax shown by its original return, an investigation of its books disclosed to the Commissioner the necessity of making an additional assessment, to be determined by the settlement of questions relating to the compensation (or, as it was termed, bonus) paid to the directors, depreciation charged off on its books, and reserves charged to expenses. After much correspondence and numerous conferences extending over several months between the attorney and assistant treasurer of the Mills and the chief of the special audit section of the Bureau of Internal Revenue and other of his official associates, a compromise was agreed to as to all the differences, by which the amounts to be allowed as reasonable compensation to the directors and as depreciation were agreed upon, and the claim as to reserve was allowed. Thereupon the Mills prepared and filed an amended return based upon the figures agreed upon in the conferences, with documentary evidence which it had 287 agreed to furnish; and the additional assessment was made in accordance with this return.[6] The court, in sustaining the Government's contention, said: "With the payment of the tax under the circumstances surrounding this case the agreement, which is mentioned in the record as a `gentleman's agreement,' became in legal effect an executed contract of settlement"; and that, as the Mills was seeking to recover to account of the particular item which it regarded as unfavorable to its interests, and at the same time hold to the advantage derived from the settlement of other items in dispute involved in the same general settlement, it should not be allowed a recovery. The Mills contends that the Commissioner had not been given, at the time in question, any authority, either in express terms or by implication, to compromise tax cases except as provided in § 3229; that this statute in granting such authority under specific limitations as to the method to be pursued, negatived his authority to effect a valid and binding agreement in any other way; that as the Government could not have been estopped by the unauthorized transactions of its officials, the Mills likewise could not be estopped thereby; and further, that the findings are insufficient to establish an estoppel. The Government does not here challenge any of these contentions. In the brief for the United States filed in this Court the Solicitor General states that the question whether such an informal adjustment of taxes as was made in this case is binding on the taxpayer, is submitted for decision in deference to the opinion of the Court of Claims and the importance of the question but no argument is made in support of the Government's previous contention that the Mills was estopped from questioning 288 the settlement. And, on the contrary, it is stated that "Before and since the date of the alleged settlement in this case Congress has evidently proceeded on the theory that no adjustment of a tax controversy between representatives of the Bureau of Internal Revenue and a taxpayer is binding unless made with the formalities and with the approval of the officials prescribed by statute. The authority of officers of the United States to compromise claims on behalf of or against the United States in strictly limited. . . The statutes which authorize conclusive agreements and settlements to be made in particular ways and with the approval of designated officers raise the inference that adjustments or settlements made in other ways are not binding." And further, that "No ground for the United States to claim estoppel is disclosed in the findings." Independently of these concessions, we are of the opinion that the informal settlement made in this case did not constitute a binding agreement. Sec. 3229 authorizes the Commissioner of Internal Revenue to compromise tax claims before suit, with the advice and consent of the Secretary of the Treasury, and requires that an opinion of the Solicitor of Internal Revenue setting forth the compromise be filed in the Commissioner's office. Here the attempted settlement was made by subordinate officials in the Bureau of Internal Revenue. And although it may have been ratified by the Commissioner in making the additional assessment based thereon, it does not appear that it was assented to by the Secretary, or that the opinion of the Solicitor was filed in the Commissioner's office. We think that Congress intended by the statute to prescribed the exclusive method by which tax cases could be compromised, requiring therefor the concurrence of the Commissioner and the Secretary, and prescribing the formality with which, as a matter of public concern, it should be attested in the files of the Commissioner's office; *289 and did not intend to intrust the final settlement of such matters to the informal action of subordinate officials in the Bureau. When a statute limits a thing to be done in a particular mode, it includes the negative of any other mode. Raleigh, etc. R.R. Co. v. Reid, 13 Wall. 269, 270; Scott v. Ford, 52 Ore. 288, 296. It is plain that no compromise is authorized by this statute which is not assented to by the Secretary of the Treasury. Leach v. Nichols (C.C.A.) 23 F. (2d) 275, 277. For this reason, if for no other the informal agreement made in this case did not constitute a settlement which in itself was binding upon the Government or the Mills. And, without determining whether such an agreement, though not binding in itself, may when executed become, under some circumstances, binding on the parties by estoppel, it suffices to say that here the findings disclose no adequate ground for any claim of estoppel by the United States. We therefore conclude that the Mills was not precluded by the settlement from recovering any portion of the tax to which it may otherwise have been entitled. This brings us to the question whether on the findings of fact the Mills is entitled to recover the portion of the additional tax attributable to the disallowance of $783,656.06 of the amount paid to the directors which it had claimed as a deduction.[7] Under § 12(a) of the Revenue Act of 1916 the Mills was not entitled to this deduction unless the amount paid constituted a part of its "ordinary and necessary expenses" in the maintenance and operation of	{ "pile_set_name": "FreeLaw" }
359 F.2d 886 Application of Albert BOWERS and James C. Orr. Patent Appeal No. 7584. United States Court of Customs and Patent Appeals. May 12, 1966. Evelyn K. Merker, Leon Simon, Washington, D. C., for appellants. Clarence W. Moore, Washington, D. C. (Jack E. Armore, Washington, D. C., of counsel), for Commissioner of Patents. Before RICH, Acting Chief, MARTIN, SMITH, and ALMOND, Judges, and Judge WILLIAM H. KIRKPATRICK.* SMITH, Judge. 1 Syntex Corporation is the common assignee of the appealed application1 and the 2 patents2 relied upon for the rejection. Different joint inventors are named in the application and in the patents. Albert Bowers, one of the nominal appellants here, is one of the joint inventors in the appealed application and in the 2 above named patents. The appealed application is senior in filing date to the applications upon which the patents were issued. 2 The Board of Appeals in its decision of March 18, 1964 affirmed3 the rejection of appealed claims 1 to 12 of appellants' application as "unpatentable over" claim 1 of the Bowers and Edwards patent and affirmed the rejection of appealed claim 13 as being "unpatentable over" claim 16 of the Bowers and Berkoz patent. 3 Closely related subject matter is disclosed in the patents and the application on appeal. The steroid compounds here claimed differ from the compounds claimed in the indicated patents by the presence in the steroid structure of a 2-methyl group instead of a hydrogen atom. 4 It was the examiner's position that the 2-methyl compounds of the appealed claims are so closely related to the hydrogen containing, or 2-desmethyl, compounds of the indicated patent claims as to be, in the words of the Board of Appeals, "obvious therefrom to those skilled in the art." 5 The statutory basis for the rejection is not clear from the record. While using certain of the language of 35 U.S.C. § 103, in affirming the examiner's rejection,4 the board does not explain how the patents, issuing on applications filed later than the filing date of the appealed application, can be considered as prior art against the invention here claimed. Earlier filed applications of "another" describing the invention claimed in a later filed application are prior art under 35 U.S.C. § 102(e) and as such are available for consideration in a 35 U.S.C. § 103 "obviousness" rejection Hazeltine Research, Inc. v. Brenner, 382 U.S. 252, 86 S.Ct. 335, 15 L.Ed.2d 304. However, the rule does not warrant a rejection under 35 U.S.C. §§ 102 or 103 on patents that issued on later filed applications. Such references are clearly excluded by the precise language of sections 102(e) and 103. 6 The opinion of the board seeks to justify the rejection in its statement: 7 * * * The Examiner rules that, in view of this close relationship and the obviousness of the claimed compounds from the patented claims, appellants are not entitled to receive a patent on the basis of the appealed claims, since appellants' assignee had received patent protection on essentially the same inventions in the Bowers and Edwards and the Bowers and Berkoz patents. * * * * * * * * * 8 It is unfortunate that the issue of "double patenting" was not raised at the earliest possible date * * . 9 There is no objection of record concerning this being a new ground of rejection. 10 Subsequent to the decision of the board, a petition for rehearing was filed in which the separate nature of the involved inventions was pointed out and discussed. Later, and subsequent to our decision of May 14, 1964 in In re Robeson, 331 F.2d 610, 51 CCPA 1271, appellants filed a letter of June 19, 1964, in which the Board of Appeals was requested to consider the disclaimer, filed concurrently therewith, in which they disclaimed: 11 * * the terminal portion of the term of the above identified application Serial No. 138,265 as would extend beyond October 2, 1979, the expiration date of U. S. Patent No. 3,056,814, with respect to Claims 1-12, and as would extend beyond March 19, 1980, the expiration date of U. S. Patent No. 3,082,220, with respect to Claim 13. 12 Appellants' letter of June 19, 1964 refers to our Robeson decision as being "directly in point" and argued: 13 * * * that the attached disclaimer obviates the basis of the double patenting rejection of claims 1-13 on appeal, over the common assignee's Patent No. 3,056,814 and No. 3,082,220. The disclaimer precludes any extension of the monopoly since it provides for the expiration of the above identified application, if patented, simultaneously with Patent Nos. 3,056,814 and 3,082,220. 14 In its decision on the petition for reconsideration, the board considered the contents of the letter of June 19, 1964, and criticized one of the signatures appearing on the disclaimer. It then stated: 15 Assuming that this paper were a disclaimer operative to disclaim the indicated portions of a patent granted on the instant applications, we could give it no weight in the present appeal because it is not apparent that In re Robeson, supra, or the subsequent decision, In re Kaye, 51 CCPA [1465, 332 F.2d 816] 141 USPQ 829, apply to the situation where a terminal disclaimer is offered with respect to the commonly owned patent of a different inventive entity. * * * 16 Subsequently appellants filed a new disclaimer to overcome the board's criticism as to form which was accepted and has been duly recorded in the United States Patent Office. By order of the court upon granting appellants motion to correct diminution of record, which was not objected to by the Solicitor for the U. S. Patent Office, this new disclaimer was added to the record. The Solicitor here does not challenge the sufficiency of the new disclaimer nor does he argue that the effect of the terminal disclaimer on the rejection is not before us. We will therefore turn to a consideration of the subject matter defined in the appealed claims and the patent claims. 17 We find that we are here dealing with different inventions. As pointed out in appellants' brief: 18 It is apparent that a single invention is not involved. The inventions of the involved application and those of the reference patents are not identical; they are different and distinct inasmuch as the inventions differ in the presence of a CH2 grouping at a specific position in the complex steroid molecule. It is clear that the claims of the Bowers and Orr application, which was the first filed application, define an invention separate and different from those defined in the reference patents owned by the same assignee. 19 Appellants also point out in their brief that "Each invention would be patentable absent the other," which is not disputed by the Patent Office. The brief then continues: 20 It is clear that separate, distinct and nonidentical inventions are described in the application at bar and in the patented inventions. It is therefore contended that a terminal disclaimer is appropriate in the case at bar to overcome a double patenting rejection under the holding of In re Robeson and In re Kaye. 21 As we stated in Kaye, supra, 332 F.2d at 819, 51 CCPA at 1468, in reference to Robeson, supra: 22 In that case we held that where, as here, the claims define separate, albeit patentably indistinct, inventions, the filing of a terminal disclaimer may obviate a double patenting rejection. 23 Thus, it seems to us that the board's position must stand or fall on the issue of whether our decisions in Robeson, supra, and Kaye, supra, as stated by the board, "apply to the situation where a terminal disclaimer is offered with respect to the commonly owned patent of a different inventive entity." 24 It is true that in both Robeson, supra, and Kaye, supra, the double patenting rejections which we found to be obviated by the terminal disclaimer were predicated in each case on the same inventorship. However, we find this to be a distinction without legal significance in the present context. 25 Statutory authority for the terminal disclaimer here in issue is found in 35 U.S.C. § 253, the second paragraph of which provides: 26 In like manner any patentee or applicant may disclaim or dedicate to the public the entire term, or any terminal part of the term, of the patent granted or to be granted. 27 It is to be noted that the parties authorized by the statute to file the terminal disclaimer are "any patentee or applicant." It seems clear that Congress intended that the remedies of this section were also to be available to assignees in view of the express provision of 35 U.S.C. § 100(d) that: 28 (d) The word "patentee" includes not only the patentee to whom the patent was issued but also the successors in title to the patentee. 29 The statutory provisions thus support appellants' position and are contrary to the solicitor's arguments. 30 The solicitor argues that the common	{ "pile_set_name": "FreeLaw" }
125 Ariz. 53 (1980) 607 P.2d 372 AMERICAN CONTINENTAL LIFE INSURANCE COMPANY, an Arizona Corporation, Appellant and Cross-Appellee, v. RANIER CONSTRUCTION CO., INC., Appellee and Cross-Appellant. No. 13950. Supreme Court of Arizona, In Banc. February 6, 1980. Rehearing Denied March 11, 1980. 54 Fennemore, Craig, von Ammon & Udall by Silas H. Shultz, Dwayne L. Burton, Michael Green, Phoenix, for appellant and cross-appellee. Thomas W. Murphy, Pago Pago, American Samoa, for appellee and cross-appellant. GORDON, Justice: This appeal involves a suit for breach of a construction contract between American Continental Life Insurance Co. (American) and Ranier Construction Co., Inc. (Ranier). After trial by jury, a verdict was returned for Ranier in the amount of $130,000 and for American in the amount of $10,000 on its counterclaim. The trial judge determined that neither party was entitled to recover attorney's fees from the other. Both parties appeal. Having jurisdiction pursuant to 17A A.R.S., Rules of Civil Appellate Procedure, Rule 19(e), we reverse the judgment in favor of Ranier and the court's disposition of attorney's fees. American contracted with Ranier to construct a building for $517,286.30. To date, American has paid Ranier $457,247.47. The contract required American to make monthly progress payments for 90% of the work completed each month upon the issuance by the architect of a certificate for payment. American refused to make the final payment, consisting of the 10% retained each month and the amount due for work completed after the date of the last progress payment. It claimed that Ranier had breached the procedural requirements of the contract and had failed to construct the building in a workmanlike manner and in accordance with the plans and specifications. Ranier subsequently instituted suit for breach of the contract, to recover funds retained under the contract and damages for delays and lost profits. American counterclaimed for breach of contract and negligence, to recover damages for faulty construction and delays. The jury returned a single verdict for Ranier in the amount of $130,000 and a single verdict for American in the amount of $10,000. American appeals the verdict in favor of Ranier. Ranier cross appeals the trial court's refusal to award attorney's fees to Ranier as the prevailing party.[1] At the close of Ranier's case and again at the close of all the evidence, American moved for a directed verdict, which was denied. One of the grounds urged by American was that Ranier had failed to meet a condition precedent to the right to final payment, because it had failed to procure from the architect a final certificate for payment as provided in the contract. 55 American renews this argument on appeal, contending that the court erred in denying its motion for a directed verdict. Article 7 of the contract provides: "Final payment constituting the entire unpaid balance of the Contract Sum shall be paid by the Owner to the Contractor within thirty (30) days after Substantial Completion of the Work * * * provided the work has then been completed * * * and a final Certificate for Payment has been issued by the Architect." Issuance of the final certificate for payment is governed by paragraph 9.7.2 of the General Conditions of the contract: "Upon receipt of written notice that the Work is ready for final inspection and acceptance and upon receipt of a final Application for Payment, the Architect will promptly make such inspection and, when he finds the Work acceptable under the Contract Documents and the Contract fully performed, he will promptly issue a final Certificate for Payment stating that to the best of his knowledge, information and belief, and on the basis of his observations and inspections, the Work has been completed in accordance with the terms and conditions of the Contract Documents and that the entire balance found to be due the Contractor, and noted in said final Certificate, is due and payable." The architect issued a certificate of substantial completion,[2] but Ranier admits that a final certificate for payment, as provided for in the contract, was never applied for or obtained. American asserts, and it is undisputed by Ranier, that it was Ranier's responsibility to procure issuance of the certificate. Ranier argues, however, that strict compliance with the requirement of a final certificate for payment was waived, because, from the beginning, both parties deviated from the formal requirements of the contract in other respects. Ranier cites as examples the fact that change orders, although done at the owner's request, were not signed by the owner; that on occasion the owner even ordered changes to be made without execution of a formal change order; that extensions of time were granted both formally and informally; and that the owner, although in agreement, also failed to sign extensions of time. The trial court believed that there was sufficient evidence to support a submission to the jury as to whether strict compliance had been waived. We disagree. Waiver is either the express, voluntary, intentional relinquishment of a known right or such conduct as warrants an inference of such an intentional relinquishment. See, e.g., City of Tucson v. Koerber, 82 Ariz. 347, 313 P.2d 411 (1957). Waiver by conduct must be established by evidence of acts inconsistent with an intent to assert the right. Occidental Life Insurance Co. v. Jacobson, 15 Ariz. 242, 137 P. 869 (1914); see Bolo Corp. v. Homes and Son Construction Co., Inc., 105 Ariz. 343, 464 P.2d 788 (1970). The waiver of one right under a contract does not necessarily waive other rights under the contract. See O'Malley v. Cummings, 86 Ill. App.2d 446, 229 N.E.2d 878 (1967). Thus, even if American did waive other rights under the contract relating to change orders or extensions of time, that conduct does not manifest an intent to waive any right relating to payment for 56 work. See Practical Construction Co. v. Granite City Housing Authority, 416 F.2d 540 (7th Cir.1969). Ranier does not indicate any evidence, nor does any evidence appear in the record, that the parties ever disregarded any of the terms of the contract relating to payments. Accordingly, we find no waiver.[3] Ranier also argues, alternatively, that certain acts by American[4] prevented fulfillment of the condition precedent, thereby excusing performance. We fail to perceive how these acts prevented Ranier from seeking a final certificate of payment from the architect. Similarly, we reject Ranier's assertion that seeking a final certificate of payment would have been a futile act, because American had already demonstrated its unwillingness to co-operate by refusing to sign the certificate of substantial completion. The failure of American to sign the certificate of substantial completion has nothing to do with Ranier's obligation under the contract to procure the final certificate of payment in order to be in a posture to claim that payment from American is due. Moreover, even if Ranier is correct in assuming that American would not have made the final payment had Ranier sought and received the final certificate of payment from the architect, Ranier is not excused from the contractually-imposed duty of acquiring the certificate. Without it, we have no way of knowing if the architect was satisfied that the list of items to be completed between the time of issuance of the certificate of substantial compliance and the application for final payment[5] had been completed and that the contract was, thus, fully performed. At the trial, in fact, the architect testified that after he issued the certificate of substantial completion, the building was not complete, and items on the "punch" list remained unfinished.[6] We agree with American that the final certificate for payment is not "procedural chaff." It is a major substantive right, which "serves a vital interest, in that it induces the contractor to render a performance that conforms in fact to plans and specifications, spurs him to stay with the job and, upon completion, furnishes the main incentive to make conforming corrections." Loyal Erectors, Inc. v. Hamilton & Son, Inc., 312 A.2d 748, 755 (Me. 1973). The trial court erred in failing to direct a verdict in American's favor because of Ranier's 57 non-compliance with the condition precedent of obtaining a final certificate of payment. American challenges the jury's award to Ranier on several other grounds, which we need not consider, because we reverse on the basis of the court's denial of American's motion for a directed verdict. We next address the issue of attorney's fees raised by Ranier. The contract between American and Ranier provides for attorney's fees in the following language: "In the event of litigation between the parties hereto arising out of this Contract or the performance of the Work hereunder, the prevailing party shall be entitled to recover reasonable attorney's fees in addition to any other damages allowed by law." Supplementary General Conditions, Paragraph 15.3. The trial judge would not allow either party to recover attorney's fees from the other, because he believed that both parties had breached their agreements, and he considered this finding implicit in the jury's verdicts. Because of our decision today reversing the judgment in favor of Ranier, American is clearly the prevailing party and is entitled to recover attorney's fees by the above express provision of the contract. The judgment in favor of Ranier is reversed and remanded to the trial court with directions to enter judgment in American's favor upon Ranier's complaint and to award attorney's fees to American. HOLOH	{ "pile_set_name": "FreeLaw" }
170 S.W.3d 26 (2005) Conrad STROMBERG, et al., Respondents/Cross-Appellants, v. Kevin J. MOORE, et al., Cross/Respondent, and State Bank of Jefferson County, Appellant, and UMB Bank, n.a., and American Family Insurance Company, Respondent. No. ED 83912. Missouri Court of Appeals, Eastern District, Division Two. June 28, 2005. Motion for Rehearing and/or Transfer Denied August 4, 2005. Application for Transfer Denied September 20, 2005. 27 Michael A. Campbell, Dawn Ann M. Johnson, St. Louis, MO, for Appellant. Gregory D. O'Shea, St. Louis, MO, Nicholas G. Gasaway, Jr., Hillsboro, MO, for Respondent. Motion for Rehearing and/or Transfer to Supreme Court Denied August 4, 2005. ROBERT G. DOWD, JR., Judge. State Bank of Jefferson County (State Bank) appeals from the judgment awarding Conrad Stromberg (Stromberg) $80,000 in damages for negligence and conversion in connection with an $80,000 draft (Draft) issued by American Family Mutual Insurance Company (American Family) in connection with a fire insurance claim. On appeal, State Bank argues the trial court 28 erred in granting judgment in favor of Stromberg because (1) under the election of remedies doctrine, Stromberg is precluded from claiming an interest in the Draft, (2) under Section 400.3-420, RSMo 2000,[1] liability for conversion is limited to the plaintiff's interest in the instrument, and (3) the doctrine of unavoidable consequences and the doctrine of laches prevent Stromberg from making a claim against State Bank. On cross-appeal, Stromberg argues the trial court erred in denying him damages by way of interest in its application of Section 408.040. We affirm in part and reverse and remand in part. Viewed in the light most favorable to the judgment, the following facts were adduced at trial. Stromberg owned a plot of ground with buildings located in DeSoto, Missouri. In 1997, Stromberg sold this property to Kevin and Lucinda Moore (collectively referred to as the Moores) for a purchase price of $100,000, receiving $7,000 at closing and taking back a note and Deed of Trust for $93,000. Named as beneficiaries on the Deed of Trust were Stromberg, Mary Stromberg, his wife, Shawn Stromberg, his son, and Margaret Stromberg, his daughter (collectively referred to as the Strombergs). The note secured by the Deed of Trust was payable over twenty years with monthly payments of $807.08. Also at the closing, a policy of fire insurance in the amount of $80,000 was issued on the property naming Complete Auto Repair, the Moore's company, as the insured and Stromberg as the mortgagee.[2] On June 7, 1998, the buildings on the mortgaged property were completely destroyed by fire. On June 8, 1998, American Family received a telephone proof of loss from its insured, the Moores d/b/a Complete Auto Repair. On July 13, 1998, American Family issued the Draft in the amount of $80,000 which was the total amount of coverage under its policy and made the draft payable to Complete Auto Repair and Stromberg. Kevin Moore received the draft by mail. Stromberg and the Moores met in late July or early August to discuss division of the Draft without reaching any agreement as to its division because the amount the Moores owed Stromberg on the Deed of Trust on the date of the fire was approximately $92,000.[3] On August 11, 1998, Kevin Moore presented the Draft, purportedly endorsed by both payees, for deposit into his business account at State Bank. Stromberg testified he did not endorse the Draft nor did he authorize Kevin Moore or Complete Auto Repair to endorse the Draft for him. Linda Tucker, teller for State Bank, testified relating to the deposit of the Draft by Kevin Moore. She testified that Kevin Moore came into the bank with the Draft but was not accompanied by Stromberg. Kevin Moore told Linda Tucker that Stromberg was his partner. Linda Tucker testified that she did not know Stromberg and, at the time of deposit, she did not require identification or verification that Stromberg's signature was correct and genuine. She further testified that there was a partnership resolution on file for 29 Complete Auto Repair showing the signature of Kevin Moore but not that of Stromberg. In fact, Stromberg was never a part of the partnership resolution nor was his signature on record anywhere at State Bank. Richard Francis, president of State Bank, testified that Stromberg was not a customer of the bank and that he would not have received any notice of account activity. Richard Francis also testified that the bank had no relationship with Stromberg nor did he know of or did the bank have a financial interest in the transaction between Stromberg and Kevin Moore. Additionally, Richard Francis testified the teller is required to know the endorser. There was no signature card on file bearing Stromberg's signature. Handwriting expert, William Storer, testified that it was his opinion the signature of Stromberg was not genuine. Before discovering the Draft had been deposited, Stromberg foreclosed on the mortgaged property on November 10, 1998. At the time of foreclosure, he was not aware that Kevin Moore had deposited the Draft into State Bank over the forgery of his signature. Stromberg took back the real estate at the foreclosure sale. Stromberg testified he did not know that the Draft was deposited until after the foreclosure. Stromberg was never a customer of State Bank, nor did he have access to any financial information that he could have reviewed to know of the deposit. After discovering the Draft had been deposited without his consent, Stromberg notified State Bank sometime in November of 1998 of the forgery and later received a phone call from Richard Francis asking why the forgery had not been reported sooner. Stromberg replied that he reported the forgery as soon as he found out about it.[4] Stromberg sent a letter to State Bank after it had been confirmed the Draft was forged. Stromberg demanded return of the Draft proceeds. State Bank, through Richard Francis, denied Stromberg's demand. This case was presented for trial. After trial, the trial court entered a judgment granting damages for conversion in favor of Stromberg, but denying Stromberg damages by way of interest from the date of conversion. This appeal follows. On appeal, State Bank argues the trial court erred in granting judgment in favor of Stromberg because under the election of remedies doctrine, Stromberg is precluded from claiming an interest in the Draft. Specifically, State Bank contends that because Stromberg foreclosed on the property as a means of recovering his damages, rather than pursuing a claim against State Bank on the Draft, Stromberg elected his remedy and now cannot pursue a claim for conversion against State Bank. In related points, State Bank argues that liability for conversion is limited to a plaintiff's interest in the instrument, and that the doctrine of unavoidable consequences and the doctrine of laches prevent Stromberg from making a claim against State Bank. We disagree. In a court-tried case, the judgment of the trial court will be affirmed on appeal unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Id. We accept all evidence and inferences favorable to the judgment, and disregard all 30 contrary inferences. P & K Heating and Air Conditioning, Inc. v. Tusten Townhomes Redevelopment Corp., 877 S.W.2d 121, 123 (Mo.App. E.D.1994). We are bound by the trial court's factual findings if supported by substantial evidence in the record. Id. The election of remedies doctrine, a doctrine of estoppel, originates from the theory that "where a party has the right to pursue one of two inconsistent remedies and he makes his election, institutes suit, and prosecutes it to final judgment, he cannot thereafter pursue another and inconsistent remedy." Whittom v. Alexander-Richardson Partnership, 851 S.W.2d 504, 506 (Mo. banc 1993)(quoting Tooker, et al., v. Missouri Power & Light Co., 336 Mo. 592, 80 S.W.2d 691, 695 (1935)). The purpose of the election of remedies doctrine is to prevent double redress for a single wrong. Twellman v. Lindell Trust Co., 534 S.W.2d 83, 94 (Mo. App.1976). "Where one elects to pursue one or two or more inconsistent remedies, with full knowledge of all facts, and receives full satisfaction therefrom, he can no longer assert his cause of action." Skandia America Reinsurance Corp. v. Financial Guardian Group, 857 S.W.2d 843, 846 (Mo.App. W.D.1993)(quoting U.S. Fidelity & Guaranty Co. v. Fidelity Nat. Bank & Trust Co., 232 Mo.App. 412, 109 S.W.2d 47 (1937)). To determine whether remedies are inconsistent, we look at whether one theory alleges what the other denies or whether one theory is repugnant to another. Ellsworth Breihan Bldg. Co.	{ "pile_set_name": "FreeLaw" }
774 F.2d 456 Helen PASSARO, Individually and as Executrix of the Estateof Ramon Passaro, Appellee,v.The UNITED STATES, Appellant. Appeal No. 85-927. United States Court of Appeals,Federal Circuit. Sept. 25, 1985. Richard F. Silber, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued, for appellant. With him on brief were Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director, and Sandra P. Spooner. Major Thomas G. Bowe, Major Emmett L. Battles, Office of The Judge Advocate Gen., Dept. of the Army, Washington, D.C., of counsel. Robert T. Seiwell, Media, Pa., argued, for appellee. Before DAVIS, BENNETT, and BISSELL, Circuit Judges. BENNETT, Circuit Judge. 1 The government appeals a judgment entered against it on October 23, 1984, by the United States Claims Court following its opinions in Passaro v. United States, 4 Cl.Ct. 395 (1984), and 5 Cl.Ct. 754 (1984). The judgment awarded the widow of a military retiree an accrued annuity and future benefits under the Armed Forces Survivor Benefit Plan, Pub.L. No. 92-425, 86 Stat. 706-713 (1972).1 The appeal presents narrow but significant issues of Claims Court jurisdiction and statutory interpretation. We vacate and remand.I 2 The Survivor Benefit Plan (SBP) was enacted on September 21, 1972, to establish a new system of benefits for the survivors of military retirees, replacing the Retired Serviceman's Family Protection Plan (RSFPP). The latter, a self-financing program permitting a service member to provide a percentage of his retired pay as an annuity for his survivors, had proved inadequate, being invoked by only 15 percent of the eligible military personnel. 3 The SBP employed a new concept which made automatic the rights of survivors of military members who retired on or after September 21, 1972, unless the member affirmatively chose not to participate in the plan. If the member elected not to participate in the plan the statute required that his spouse be notified of the decision. Section 1448(a). This section also made an election not to participate in the plan irrevocable if not revoked before the date on which the member first became entitled to retired pay. 4 Major Ramon Passaro, appellee's husband, retired from the United States Army on November 1, 1968. He elected not to participate in the RSFPP, choosing instead to receive full retirement pay. Those who, like Major Passaro, had retired before the SBP became law were not, however, left out altogether. While it was provided in section 1455(3)(a) that the SBP applies "to any person who initially becomes entitled to retired or retainer pay on or after the effective date of this Act," it was further provided in section 1455(3)(b) that "[a]ny person who is entitled to retired or retainer pay on the effective date of this Act may elect to participate in the Survivor Benefit Plan ... before the first anniversary of that date." 5 The Department of the Army contacted all service members who had previously retired and explained to them the benefits and procedures provided by the Survivor Benefit Plan. This was done on several occasions. A bulletin was first sent out describing the SBP. The bulletin was followed by a circular and then by a letter which included a form, which when filled out and returned would extend the benefits of the SBP to those who were already retired. A "final notice" provided a "box" to check on a postal card indicating the retiree's intention. Major Passaro received these communications and affirmatively elected not to participate in the SBP by checking the box indicating his intention. He signed and dated the card on September 4, 1973, which was within the then-existing time limit for a binding answer. 6 Four years after Major Passaro's death, his widow inquired about survivor benefits and was told by the Army that her husband had elected to receive his full retirement pay rather than to provide her with a survivor's annuity through reduced retirement pay. Her successful suit in the Claims Court and this appeal by the government followed. II 7 The Claims Court agreed with Mrs. Passaro that the requirement that the spouse be notified of a nonelection of SBP benefits applies to service members who retired both before and after the effective date of the 1972 Act. The court, thus, assuming jurisdiction of a claim for money damages believed to be due, undertook to fashion an equitable remedy for Mrs. Passaro by deeming her late husband to be a member of the SBP. We think that the court exceeded its jurisdiction and misread the statute. 8 The Claims Court reached its judgment by writing into the Act a notice requirement it does not have. Congress knew how to say whether a spouse should be notified of a nonelection of survivor benefits by the military member. Section 1448(a) required notification but section 1455(3)(a) specified that it applied to "any person who initially becomes entitled to retired or retainer pay on or after the effective date of this Act." In other words, section 1448(a) applies to a service member who is automatically enrolled in the SBP because he retires on or after the effective date of the Act, September 21, 1972. Section 1448(a) reads in pertinent part: 9 (a) The Plan applies to a person who is married or has a dependent child when he becomes entitled to retired or retainer pay unless he elects not to participate in the Plan before the first day for which he is eligible for that pay. If a person who is married elects not to participate in the Plan at the maximum level, that person's spouse shall be notified of the decision. 10 Thus, only a service member automatically enrolled by the Act could make an election not to participate before the first day for which he is eligible for retired or retainer pay. Those entitled to pay before September 21, 1972, were permitted by Congress to elect to participate rather than not to participate. The notice provision, therefore, does not apply to a service member who is already entitled to retired or retainer pay. No principle of statutory construction permits such a notice provision to be implied where it was excluded by Congress. 11 Our views coincide with the administrative interpretation made and consistently applied in the 13 years since enactment of the SBA in 1972. Importantly, it agrees also with the intent of Congress which has amended the SBP five times and has never seen fit to alter the interpretation given administratively to the spousal notice provisions with respect to pre-SBP retirees.2 This is persuasive evidence to support our interpretation of congressional intent in the matter. NLRB v. Bell Aerospace Co., 416 U.S. 267, 274-75, 94 S.Ct. 1757, 1761-62, 40 L.Ed.2d 134 (1974). 12 The Claims Court has given weight to tangential remarks of two congressmen to support its interpretation of legislative history. We have carefully examined the entire legislative history including the statements alluded to and reach a contrary conclusion from the court below. There is no support for concluding that Congress meant to treat alike, for spousal notice purposes, those who retired both before and after enactment of the SBP. There is no statement in the hearings and congressional reports on this legislation suggesting that the United States would be liable to suit in money damages with respect to a claim by a widow of a pre-SBP retiree whose husband failed to enroll in the plan. Pertinent language of other committee members and the House and Senate Reports clearly differentiate between the pre-SBP retiree, and the service member yet to retire, on the points about spousal notice and election in and election out of the plan. Respectfully, the Claims Court has misread the record and the statute itself. We hold that the administrative interpretation has been both reasonable and correct. The court should have taken a less expansive view of the claim by inquiring whether the administrative interpretation of the law was reasonable rather than whether it was the interpretation the court would have desired. III 13 The judgment below was premised on jurisdiction which did not exist. It was held that the Tucker Act, 28 U.S.C. Sec. 1491 (1982), provided the necessary jurisdiction here and reliance was placed on the holding in Barber v. United States, 676 F.2d 651, 230 Ct.Cl. 287 (1982). That case does not help Mrs. Passaro. In Barber, the claimant was the widow of a service member who, unlike Mrs. Passaro's husband, retired after the enactment of the SBP and, therefore, was automatically enrolled in the plan. Sergeant Barber elected out of the plan on the eve of his retirement and no notice was given to his spouse as required by the statute. The Court of Claims held that Mrs. Barber thus had a Tucker Act claim for money due under a substantive right created by the SBA statute, as clarified by legislative history. Here, however, only an affirmative decision by Major Passaro to participate in the plan would create a vested interest in his widow upon his death. The factual and legal situations in the two cases are obviously dissimilar. Absent a presently due money claim, therefore,	{ "pile_set_name": "FreeLaw" }

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