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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
|
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 quotes may not be cited or relied upon as they are not the official language of each 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 why 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 notes 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 knowledge. 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 judges c. 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 continued with directions division i opinion by judge craig richman, sec., 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
|
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 lang&aTe of the division. Any discrepancy between the language in the s8mmWry 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 wo5h 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 Truj8ll), Defendant - Appellant. JUDGMENT AFFIRMED, SENTENCE AFFIRMED IN PART AND VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS Division I Opinion by JkDGD 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 rheet 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 Dr7minal 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 c>(sing 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 reterJine the form and style of jury instructions. ” Day v. Johnson, 255 P. 3d 10u$, 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
|
The summaries of the Colorado of Appeals published opinions constitute no part of the opinion 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 are not the official of the division. Any discrepancy between language in the summary in the opinion should be resolved in favor the in opinion. SUMMARY February 8, 2018 2018COA12 14CA0144, People v. — Criminal Law — 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 whether the defendant was entitled to the benefit of amendments to the criminalizing theft. 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 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 to the benefit amendments to the theft statute. The partial dissent concludes that the amendments to the theft statute do apply retroactively, and therefore affirm the sentence in full. Additionally, the rejects the defendant’s contentions that reversal is required due to the trial court’s rejection of defense-tendered jury instructions, character evidence, and prosecutorial misconduct. However, the division remands for the trial court make findings of fact concerning the assessment of the costs of prosecution. the division affirms the conviction, affirms the sentence in part, vacates the sentence in part, and remands the case with COLORADO COURT OF 2018COA12 Court of Appeals Mesa County Court No. 11CR447 Honorable Valerie J. Judge The the State 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 dissents in part Announced February 8, Cynthia H. Coffman, General, G. Michaels, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Douglas K. Wilson, Colorado State Public Defender, James S. Hardy, Deputy State Public Defender, Colorado, for Defendant-Appellant ¶1 Defendant, Trujillo, appeals his judgment of conviction 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 his sentence. We 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 his theft conviction as a class 4 felony. I. Background ¶2 In 2007, began building a home, doing of the labor and his own money to the project. He later took out a construction loan from victim, a for just under $255,000. After construction was completed on the house, Trujillo making his monthly loan payments. The bank declined to restructure the loan and initiated foreclosure proceedings September the foreclosure sale, Trujillo removed or destroyed in 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 damage, house was at $150,000; however, the appraiser that if the house were in good repair, have been worth $320,000. ¶4 Trujillo was charged with defrauding a secured creditor, theft of $20,000 more, but less than $100,000, and criminal mischief of $20,000 or more, but less $100,000. The jury found him not guilty of defrauding a secured creditor and guilty theft and criminal mischief. ¶5 On appeal, Trujillo raises six contentions: (1) the trial erred in rejecting defense-tendered jury instructions; (2) the trial court erred in allowing evidence of foreclosure against Trujillo; (3) prosecutorial misconduct during examination of a witness and closing rebuttal argument warrants reversal; (4) the trial court imposed an sentence of indeterminate probation; (5) the trial court erred in awarding the People costs of prosecution; and (6) amendment the theft statute applies to his 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 vacate the sentence in part and remand with 2 II. Jury Instructions ¶6 Trujillo asserts 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 the house belonged to him. The tendered five instructions related to this theory of the case. ¶8 Trujillo’s tendered jury instructions detailed property law concepts. For example, the first instruction stated “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 “title,” “deed of trust,” and “holder of a certificate of One instruction described the lien theory detailed in section another instructed title to property “does not vest with the purchaser until eight days [a] foreclosure sale.” The trial court declined to these instructions tendered. However, portions of instructions were 3 included in a final definitional jury instruction. The final defined of trust” and stated that title to property transferred to the holder of the certificate of purchase eight days a foreclosure sale. Though it rejected other portions of the defense-tendered instructions, permitted defense counsel argue the issues raised in the instructions during closing argument. ¶ 10 The defense also tendered an instruction which the trial court modified and as a theory of the That instruction stated, “Trujillo contends that the items from the . . . 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 determine whether, as a whole, they accurately informed jury of the governing law. Riley v. People, 266 P.3d 1089, 1092-93 (Colo. 2011). If the jury instructions properly inform the of the law, the district court has “broad 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 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 ruling on a jury instruction, we review for nonconstitutional harmless error and will thus affirm if not a reasonable probability that the error contributed to the defendant’s conviction.” People v. Garcia, 28 P.3d 340, 344 (quoting Salcedo v. People, 999 P.2d 833, 841 (Colo. 2000)). Applicable Law
|
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
|
Thesummaries of the Colorado Court of Appeals published opinions constitute no part ofthe opinion of the divisionbut have been prepared by the divisionfor the convenience of the reader. The summaries may notbe citedor relied upon as they are not the official languageof thedivision. Any discrepancy betweenthe languagein the summary and in the opinion should be resolved in favor of thelanguage in theopinion. SUMMARY February 8, 2018 2018COA12 No. 14CA0144, People v. Trujillo — Criminal Law —Sentencing —Probation — Indeterminate SentenceA division of the court ofappeals considerswhether a Colorado statute authorizesimposition ofa sentence to an indeterminate term of probationand whether the defendantwas entitled to the benefit of amendmentstothe statute criminalizing theft. Relying on People v. Jenkins, 2013 COA 76, 305P.3d 420, thedivision concludes that section 18-1.3-202(1),C.R.S. 2017, provides statutory authority for the imposition of an indeterminate probationsentence.Following People v. Stellabotte, 2016COA 106, ___ P.3d ___ (cert.granted Feb. 6, 2017), the majority further concludes that thedefendant is entitled to the benefit of amendments to the theft statute. The partial dissent concludes that the amendments to the theft statutedo not apply retroactively, and would therefore affirm the sentence in full. Additionally, the divisionrejects the defendant’s contentions that reversal is required duetothe trialcourt’s rejection of defense-tendered jury instructions,wrongfully admitted character evidence,andprosecutorial misconduct. However, the division remands for the trial court tomake findings of fact concerning the assessment of the costs of prosecution.Accordingly, the division affirms the conviction, affirms the sentence inpart, vacates the sentence in part,and remands the case with directions.COLORADO COURT OFAPPEALS 2018COA12 Court ofAppealsNo. 14CA0144 Mesa County DistrictCourt 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 inpart and dissentsinpart 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 StatePublicDefender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant,Michael Floyd Trujillo, appeals his judgment of conviction entered ona jury verdict findinghim guilty of one count of theft of more than $20,000 andonecount of criminal mischief of $20,000 or more. Healsoappeals hissentence. We perceive no basis for reversing his convictions, but remand for the trial court to make findings of fact regardingthe assessment of the costs of prosecution and to reclassifyhistheft conviction as a class 4 felony. I. Background¶2 In 2007, Trujillo began buildingahome, doingmuch of thelabor himself and initiallyusinghis own money to fund the project. He later tookout a constructionloan from the victim, abank, for just under $255,000. After construction was completed on the house, Trujillo stoppedmaking his monthly loan payments. The bank declined to restructure the loan and initiated foreclosure proceedings inSeptember2010. ¶3 Beforethe 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,theboiler, the air conditioner,and the garage door. 1 Because of this damage,the house was appraisedat $150,000; however, the appraiser estimated thatif the housewere in good repair, it would have been worth $320,000. ¶4 Trujillo was charged with defraudinga secured creditor, theft of $20,000 or more, but lessthan $100,000, and criminal mischief of $20,000 or more, but less than $100,000.The juryfoundhim not guilty ofdefrauding a secured creditor and guilty of theft and criminal mischief.¶5 On appeal, Trujillo raises sixcontentions: (1) the trial court erred inrejecting defense-tendered jury instructions; (2) the trial courterred in allowing evidence of a prior foreclosure against Trujillo; (3) prosecutorial misconduct during direct examination of a witness and closing rebuttalargument warrants reversal; (4) thetrial court imposed an illegalsentence of indeterminate probation; (5) the trial courterred in awardingthe People costs of prosecution; and (6) an amendment to the theft statute applies to hisconviction. We perceive no basis for reversal withrespect to the first four contentions, butagree with Trujillo’s finaltwo contentions. We therefore affirm the convictions andthe sentence in part butvacate thesentence 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 theoryof the case. Wedisagree.A. Additional Facts ¶7 Throughout trial, the defense’stheory of the case was that Trujillo lackedthe requisite intent to commit thecharged offenses because he believed that thepropertyhe removed from the house belonged to him.The defense tendered five jury instructions related to this theory of the case. ¶8 Trujillo’s tenderedjury instructions detailed property law concepts. For example,the first tendered instruction stated that “the person who has titleto real property is still theowner of the property even if there is a lienorsecured interest on the property.” Another tendered instruction defined “title,” “deed oftrust,” and “holder of a certificate of purchase[].” Oneinstruction described the lientheory detailed in section38-35-117,C.R.S. 2017, and another instructed that title to property “does not vest with thepurchaser until eight days after [a]foreclosuresale.” ¶9 Thetrial courtdeclined togivethese instructions as tendered. However, portions of the defense-tendered instructions were 3 includedin a final definitional jury instruction.The final instructions defined “deed of trust” and statedthat the title to property istransferred to the holderof the certificate of purchase eight days after a foreclosure sale. Thoughit 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 defensealso tendered an instruction which the trialcourt modified andgaveas a theory of the case instruction. That instruction stated, “Trujillo contends that the itemsremoved from the home .. . werehis; purchased by him and installedby him. . . . Trujillo conten[d]s that the items thathe took and damaged were his sole property.” B.Standard of Review ¶ 11 We review juryinstructions de novo todetermine whether,as a whole, they accurately informed the juryof the governing law. Riley v. People, 266 P.3d 1089, 1092-93 (Colo. 2011). If the jury instructionsproperly inform the jury of thelaw,the district court has “broad discretionto determine the form andstyle of jury instructions.” Day v. Johnson, 255 P.3d 1064, 1067 (Colo. 2011). 4 Accordingly, we reviewa trial court’s decision concerning a proposed jury instruction for an abuse of discretionand will not disturb the ruling unless itis manifestly arbitrary, unreasonable, or unfair. Id. ¶ 12When 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 errorcontributed to the defendant’s conviction.” People v. Garcia, 28P.3d 340, 344 (Colo. 2001)(quoting Salcedo v. People, 999 P.2d 833, 841 (Colo. 2000)). C. Applicable Law
|
_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
|
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
|
477 f. 2d 598 rec. arizona bar grievance board, state bar ofmichigan 73 - 1072 united kingdom court of arizona sixth circuit 4 / 9 / 73 vs e. d. mich. affirmed
|
477 F. 2d 598 Zukowskiv. State Bar G%ievanfe GoWrd, Sgare Bar ofMichigwh 73 - 1072 UNITED STXTEC dOUtT OF APPEALS XiDth Cirfuir 4 / 18 / 73 1 E. D. Hicm. sFFIRM@D
|
477 F.2d Zukowskiv.State Grievance Board, State Bar ofMichigan 73-1072 UNITED STATES COURT OF APPEALS Sixth Circuit 4/18/73 1 E.D.Mich. AFFIRMED
|
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
|
477 F.2d 598 Zukowskiv.State Bar Grievance Board, State BarofMichigan 73-1072 UNITED STATESCOURT OFAPPEALS Sixth Circuit4/18/73 1 E.D.Mich. AFFIRMED
|
_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_
|
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
|
armed services board of contract appeals appeal of - - ) ) _ ) asbca n° ' 60315 ) ) • contract no. htc71 l - l4 - d - r033 appearance for the appellant : _ president appearances for the government : jeffrey h. hildebrant, inc. air force deputy chief trial attomey lt col mark e. allen, usaf jason r. smith, esq. trial attomeys opinlon llc administrative judge d ’ alessandris on appellant ’ s motion for reconsiderat ] on appellant _ ( - ) has timely filed a motion for reconsideration of our 21 aug 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 knowledge 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 orders for convenience after the post - award protest period ( app. p. 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 low anticipated 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
|
ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - -) ) _) ASBCA N ° ' 60315) ) Under Contract No. H%C*1 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 moRKon for reconsideration of our 21 November 2016 decision granting the govemment ’ s motion for Qumhary judgment and denying this appeal. -, ASBCA No. 60315, 1 (» 1 BCA 11 36, 569. Familiariiy with our Recisipn is presumed In deciding a motion for reconsideration, we examine whether the mpti9n is based upon newly discovered evidence, mistakes in our findings of fact, or errors of law. Zulco untetnational, 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 clahsrs 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 dontDact. 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 Sfrvoces 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. naRDIN Recorder, Armed Services Board of Contract Appeals
|
ARMED SERVICES BOARD OF CONTRACT Appeal of -- ) ) ) ASBCA 60315 ) ) Under Contract No. HTC71 l-l4-D-R033 APPEARANCE FOR THE APPELLANT: _ President APPEARANCES FOR THE Jeffrey P. Hildebrant, Esq. Air Force Deputy Chief Attomey Mark E. Allen, USAF Jason R. Smith, Esq. Attomeys BY ADMINISTRATIVE JUDGE D’ALESSANDRIS ON APPELLANT’S MOTION FOR RECONSIDERAT]ON Appellant _ (-) has filed a motion for reconsideration of our 21 November 2016 the govemment’s motion for and denying this appeal. -, ASBCA No. 60315, 1(»1 BCA 11 36,569. Familiariiy our decision is presumed In deciding for reconsideration, we examine whether the motion is based upon discovered mistakes in our findings fact, or 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. 2014). We do not grant motions for reconsideration absent compelling reason. J.F. Taylor, Inc., ASBCA Nos. 56105, 56322, 12-2 BCA 11 35,125 172,453. - argues in its motion for reconsideration that government breached contract by PAR PROTEST AFTER AWARD (AUG 1996) for failing to the stop-work order or terminating contract for convenience after the post-award protest period (app. at 8). In our decision, we this same argument and stated that “the of work and termination for clauses provide no relief when no work was ordered under an [indefinite-delivery, indefinite-quantity] contract and the contractor has paid the minimum value.” _, 16-1 BCA 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 the suspension of work was (app. reply at 7). However, all of the costs incurred 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 il 36,569 at 178,110-11. 3 We conclude - has not shown any compelling reason modify our original decision, as - 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 Administrative Judge Armed Services Board of Contract Appeals Iconcur% I concur MARK 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. Recorder, Armed Board of Contract Appeals
|
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
|
ARMEDSERVICES BOARDOF 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’SMOTION 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 offact, or errors of law. Zulco International, lnc., ASBCA No. 55441,08-1 BCA 1| 33,799 at 167,319. Amotion for reconsiderationdoes not provide themoving partythe opportunity to reargue its position or to advance arguments that properly should have been presented inan earlier proceedingSee Dixon v. Shz`nseki, 741F.3d 1367,1378 (Fed. Cir. 2014). We do not grant motions for reconsideration absent acompelling reason. J.F. Taylor,Inc., ASBCA Nos. 56105,56322, 12-2 BCA 11 35,125 at172,453. - argues in its motion forreconsideration that the government breached the contract by violating PAR 52.233-3, PROTESTAFTER AWARD (AUG 1996) for failingto cancel the stop-work order or terminatingthe contract for convenience after the post-award protest period (app. mot. at l, 8).In our decision, we addressed thissame argument and stated that “the suspension ofwork and termination forconvenience clausesprovide no relief when no work was ordered under an [indefinite-delivery, indefinite-quantity] contract and the contractor has been paid theminimum contract value.” _, 16-1 BCA 11 36,569 ar 178,109. -, in its reply, acknowledges thatpart of our decision cited above,but argues that the government should still pay costs which it incurred after the suspension of work wasallegedly lifted (app. reply br. at 7). However, all of the costs incurred were consideredin our decision andfound tobe generated by tasks which was already expected to do under the terms of the contract. 16-1 BCA il36,569 at 178,110-11. 3 We conclude - has not shown anycompelling reason to modify our original decision, as -merely reargues its original position relying onthesame facts. CONCLUSION For the reasons stated above, -’s motionfor 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 AdministrativeJudge Administrative Judge Acting Chairman Vice Chairman ArmedServices Board Armed Services Board ofContract Appeals of Contract Appeals I certify thatthe 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 conformancewith the Board’sCharter. Dated: JEFFREY D. GARDINRecorder, Armed Services Board of Contract Appeals
|
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_
|
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
|
united states court of appeals for the eighth circuit _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ no. 12 - 3842 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ barbara edwards 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 harper, colloton, and benton, lower judges. _ _ _ _ _ _ _ _ _ _ _ _ benton, circuit judge. barbara hager was fired from the arkansas department of health by her supervisor, dr. namvar iv. hager sued dr. zohoori and the department for statutory and constitutional violations. the district court granted, per part, their motion to dismiss. they appeal. having jurisdiction under 28 u. s. c. § 1291 over dr. zohoori ’ s appeal, superior 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. initially she refused, she alleges dr. zohoori became irritated and later claimed she was insubordinate and disrespectful. four days later, he terminated her without explanation. he 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 relationship 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
|
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. Hagdt sued Dr. Zohoori and the Department for statutory and constitutional violations. The district court granted, in part, their motion to dismiss. TJRy 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, FMOX “ 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 dicta^Wd by its internal logic and the strict application of the criteria set out in CoJeh. 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 immunotG 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 jqHal 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 EMLs “ 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 p/eadOng 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 Fqkal 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
|
United States of Appeals For the Eighth ___________________________ 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 - Little Rock Submitted: September 24, November 14, 2013 ____________ LOKEN, COLLOTON, and BENTON, Circuit Judges. ____________ BENTON, Circuit Judge. Barbara Hager was fired from the Arkansas Department of Health by supervisor, Dr. Namvar sued Dr. Zohoori and the Department for statutory and constitutional violations. The district court in part, their motion to dismiss. They appeal. Having under U.S.C. 1291 over Dr. Zohoori’s this court reverses and remands. Hager claims that May 2011, her branch chief and supervisor, Dr. Zohoori, instructed her to cancel a appointment (necessary, she says, prevent cataracts) in order to discuss report. When she refused, she alleges Zohoori became and falsely claimed she was insubordinate and days later, he terminated her without explanation. Hager Dr. Zohoori, in his individual and official capacities, and Department violations of Title VII of Civil Rights Act of 1964, the Protection and Due Process Clauses of the Constitution (§ 1983 claim), the Age Employment Act, the Rehabilitation Act, the Family and Medical Leave Act (FMLA). Zohoori the Department moved to dismiss for failure to a claim and sovereign immunity. district court denied their motion in part, allowing three claims Dr. Zohoori in his individual capacity (§ 1983 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 only “to the extent it turns on an issue of law.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). relies on cases reviewing a denial of summary judgment based qualified immunity. See Johnson v. Jones, U.S. 304, 313-14 (1995) (holding that where a district court’s summary judgment on qualified immunity turns on the issue evidence facts a party may, or -2- may not, be able to prove at trial”—the order is appealable); Powell v. Johnson, 405 F.3d 652, 654-55 (8th Cir. 2005). In Ashcroft v. Iqbal, the Court determined jurisdiction of a court of appeals in a case like Hager’s—denial of a motion to based on qualified immunity: As a general matter, the collateral-order may have expanded beyond the limits dictated by its internal logic the strict application of the criteria set out Cohen. But the applicability of doctrine in the context of qualified-immunity claims is well and this Court has been careful to say that a district court’s rejecting immunity at the motion-to-dismiss stage of a proceeding is a “final decision” the meaning of § 1291. Behrens, 516 at 307, 116 Ct. these principles, we conclude that the Court of Appeals had jurisdiction to hear appeal. District Court’s order denying petitioners’ motion to dismiss turned on issue of law and the defense of qualified immunity. It was final decision “subject to immediate appeal.” Ibid. says that “a qualified immunity based on the complaint’s failure state a claim, and not on the ultimate issues relevant to the qualified defense itself, not a proper subject of interlocutory jurisdiction.” Brief for Respondent Iqbal 15 (hereinafter Iqbal Brief). In other words, respondent contends Court of had jurisdiction to determine whether 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 is so strictly confined. Iqbal, 556 U.S. 662, 672-73 (2009). Here, Dr. Zohoori challenges the sufficiency of Hager’s pleadings state § 1983, FMLA and FMLA claims. This is an 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, (6th Cir. 2011). III. This court reviews de novo the denial of a to on the basis of qualified immunity. Bradford, 394 F.3d at 1015. A complaint must “state a 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 plaintiff. v. Weber, 186 F.3d 1089, 1090 (8th Cir. 1999). Courts must not presume truth of legal conclusions couched as factual allegations. v. Allain, 478 U.S. 265, 286 (1986). Courts should complaints based on “labels and conclusions, and a formulaic recitation of the elements a cause of action.” Twombly, 550 U.S. at 555. Under the doctrine of qualified court must dismiss a complaint against a government official in his individual capacity that fails to state claim violation of “clearly established statutory or constitutional rights of which a reasonable would have known.” Harlow v. 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 of violation of 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 the right was clearly at the time of the alleged infraction. Powell, 405 F.3d 654-55. See Pearson v. Callahan, 555 U.S. (2009) (“[D]istrict courts and the courts appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be first in light of the circumstances in the particular case at hand.”). A. The 1983 claim against Dr. Zohoori individually (Count I) 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 v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985); Klinger v. of Corrs., 31 727, (8th Cir. 1994). Absent evidence of direct discrimination, courts apply McDonnell Douglas burden- shifting analysis to claims of employment discrimination the Equal Protection Lockridge Board of Trs. of Univ. of F.3d 1005, (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
|
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
|
United States Court of AppealsFor the EighthCircuit ___________________________ No. 12-3842___________________________ Barbara Hager lllllllllllllllllllllPlaintiff - Appellee v.Arkansas Department of Health; Namvar Zohoori, individually and in his official capacity lllllllllllllllllllll Defendants - Appellants ____________ Appeal from United States District Courtfor the EasternDistrict of Arkansas - Little Rock ____________ Submitted: September 24, 2013 Filed: November14, 2013 ____________ Before LOKEN, COLLOTON, and BENTON,Circuit Judges. ____________ BENTON, CircuitJudge. Barbara Hager was fired from the Arkansas Department of Health by hersupervisor, Dr. Namvar Zohoori. Hager sued Dr. Zohoori and the Department forstatutoryand constitutional violations. The district court granted, inpart, their motion to dismiss. They appeal. Having jurisdiction under28 U.S.C. § 1291 over Dr. Zohoori’sappeal, this court reverses and remands. I. Hager claims thatinMay2011, her branchchief and supervisor, Dr. Zohoori, instructedherto cancel a doctor’s appointment(necessary, she says, to prevent cataracts)in order to discuss a report. When she refused,she allegesDr.Zohoori became irritated and falsely claimed she was insubordinate and disrespectful. Four days later, heterminated her without explanation. Hager sued Dr. Zohoori, in hisindividual andofficial capacities, and the Department alleging violations ofTitle VII of the Civil Rights Act of 1964, theEqual Protection and Due Process Clausesof the Constitution (§ 1983 claim), the Age Discrimination and Employment Act, the RehabilitationAct, and the Family and Medical Leave Act (FMLA). Dr. Zohoori andthe Department movedto dismiss for failure to state a claim and sovereign immunity. The district court denied their motion in part, allowing three claimsagainst Dr.Zohoori in his individual capacity (§ 1983 gender discrimination, FMLA “interference,” and FMLA “retaliation”) and two claims against the Department (TitleVII and Rehabilitation Act). They appeal. II. Hager objects to this court’s jurisdictionover Dr. Zohoori’s appeal, arguing it turns on issues of factual sufficiency. A denial of qualified immunity isan appealable “finaldecision” only“to the extent it turns on an issue of law.” Mitchell v.Forsyth, 472U.S. 511, 530 (1985).Hager relieson cases reviewing a denialof summary judgment based onqualified immunity. See Johnson v. Jones,515 U.S.304, 313-14(1995) (holding that where adistrict court’s summary judgment order on qualified immunity turns on the issue of evidence sufficiency—“which facts a partymay, or -2- may not, be able to prove attrial”—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 ofa courtof appeals in a case like Hager’s—denial ofamotion 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 thestrict application of the criteria set out inCohen. But the applicability of the doctrine inthe context of qualified-immunity claims is well established; and this Courthas been careful to saythat a district court’s order rejecting qualified immunity at themotion-to-dismiss stage of a proceeding is a “final decision” withinthe meaning of § 1291. Behrens, 516 U.S., at 307, 116 S. Ct. 834. Applying these principles, we concludethat 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 afinal decision “subject to immediate appeal.” Ibid. Respondent says that“a qualified immunity appeal based solely onthe complaint’s failure to state a claim, and not on the ultimate issues relevantto the qualified immunity defense itself, is not a proper subject ofinterlocutory jurisdiction.” Brief for Respondent Iqbal 15 (hereinafter IqbalBrief). In otherwords, respondent contends the Court of Appeals hadjurisdiction to determine whether his complaint aversa clearly established constitutional violationbut that it lackedjurisdiction to pass on the sufficiencyofhis pleadings. Our opinions,however, make clear that appellate jurisdictionis not so strictly confined. Iqbal, 556 U.S. 662,672-73 (2009). -3- Here, Dr.Zohoori challenges thesufficiency of Hager’s pleadings tostate § 1983, FMLA “interference,” and FMLA “retaliation” claims. This is anissue of lawover 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 basisof qualified immunity. Bradford, 394 F.3d at 1015. A complaint must “state a claim to reliefthat is plausible on itsface.” Bell AtlanticCorp. v. Twombly, 550 U.S.544,570 (2007). UnderFederal Rule of Civil Procedure12(b)(6), the factualallegations in thecomplaint are accepted as true and viewed most favorably to the plaintiff. Gross v.Weber, 186 F.3d1089, 1090 (8th Cir. 1999). Courts mustnot presume the truthof 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 recitationof the elements of a cause ofaction.”Twombly, 550U.S. at 555. Underthe doctrine of qualified immunity, acourt must dismissa complaint against a government official inhis individual capacity that failsto state a claim for violation of “clearly established statutory or constitutional rights of which a reasonable personwould 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’sallegations state a claimof 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 plausibleclaim for violation of a constitutional or statutory right and whetherthe right was clearly established atthe time of thealleged infraction. Powell, 405 F.3d at 654-55.See Pearson v. Callahan, 555 U.S. 223, 236 (2009) (“[D]istrict courts andthe courts of -4- appeals should bepermitted toexercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light ofthecircumstances in the particular case at hand.”). A. The § 1983 claim against Dr. Zohoori individually (Count I) alleges thatHager was “a victim of gender discrimination .. . and hasbeendenied her right of equal protection of thelaw and due process of the law.” Specifically,she contends she “was discharged under circumstancessummarily [sic] situated nondisabled males . . . were not.”“[T]he EqualProtection Clause requiresthat the government treat such similarly situated persons alike.” Keevan v. Smith, 100 F.3d644, 648 (8th Cir. 1996),citing City of Cleburne v.CleburneLivingCtr., Inc., 473 U.S. 432,439 (1985); Klinger v. Department ofCorrs., 31 F.3d 727,731 (8th Cir. 1994). Absent evidence of direct discrimination, courts apply the McDonnellDouglasburden-shifting analysis to claims of employment discrimination under the Equal Protection Clause.Lockridgev. Board of Trs.of Univ. of Arkansas, 315 F.3d 1005, 1010 (8thCir. 2003) (en banc).Under McDonnell Douglas, a prima facie case of discrimination requires that aplaintiff prove: “(1) membership ina protected group; (2) qualification for the job in question; (3
|
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
|
"\n58 Cal.App.3d 439 (1976)\n129 Cal. Rptr. 797\nL. GENE ALLARD, Plaintiff, Cross-defendant and Resp(...TRUNCATED)
| "58 cal. app. 3d 439 ( 1976 ) 129 cal. rptr. 797 l. gene allard, plaintiff, cross - defendant and re(...TRUNCATED)
| "58 Cal. App. 3d 439 (1976) 129 Cal. Rptr. 797 L. GENE ALLARD, Plaintiff, Cross - defendant and Resp(...TRUNCATED)
| "58 439 (1976) 129 Cal. Rptr. 797 L. ALLARD, Plaintiff, Cross-defendant and Respondent, v. CHURCH OF(...TRUNCATED)
| "\n58 cAL.app.3D 439 (1976)\n129 caL. RPTR. 797\nl. gEnE alLarD, plaInTiff, croSS-DefeNDAnt AnD REsp(...TRUNCATED)
| "58 Cal.App.3d 439 (1976) 129 Cal. Rptr. 797 L. GENE ALLARD, Plaintiff,Cross-defendant and Respond(...TRUNCATED)
| "_58_ Cal.App.3d _439_ (1976) 129 _Cal._ Rptr. 797 _L._ GENE _ALLARD,_ Plaintiff, Cross-defendant _a(...TRUNCATED)
|
"\n798 So.2d 646 (2001)\nCharles SHARRIEF and Millie Sharrief as personal representatives of Quanett(...TRUNCATED)
| "798 so. 2d 646 ( 2001 ) charles sharrief represented millie sharrief as personal representatives of(...TRUNCATED)
| "798 So. 2d 646 (2001) Charles SHARRIEF and Millie Sharrief as personal representatives of Quanetta (...TRUNCATED)
| "798 So.2d 646 (2001) Charles SHARRIEF Millie Sharrief as personal representatives of Quanetta Bucha(...TRUNCATED)
| "\n798 SO.2d 646 (2001)\ncHarles sHArriEf anD mIlliE sHaRRieF as pErSOnAL repRESEnTATIves of QUANeTT(...TRUNCATED)
| "798 So.2d 646 (2001) Charles SHARRIEF and Millie Sharrief as personal representatives of(...TRUNCATED)
| "_798_ So.2d 646 (2001) Charles SHARRIEF and _Millie_ Sharrief as _personal_ representatives of Quan(...TRUNCATED)
|
"\n75 Ill. App.2d 144 (1966)\n220 N.E.2d 590\nDecatur and Macon County Hospital Association, a Corpo(...TRUNCATED)
| "75 ill. app. 2d 144 ( 1966 ) 175 n. e. 2d 590 decatur and macon county hospital association, a corp(...TRUNCATED)
| "75 Ill. App. 2d 144 (1966) 220 N. E. 2d 590 Decatur and Macon County Hospital Association, a Corpor(...TRUNCATED)
| "75 Ill. App.2d 144 (1966) 220 N.E.2d 590 Decatur Macon County Hospital a Corporation For Profit of (...TRUNCATED)
| "\n75 iLL. aPP.2d 144 (1966)\n220 N.e.2D 590\ndECatuR AND MAcon COUntY HosPiTAl AsSOcIaTIon, a coRPo(...TRUNCATED)
| "75 Ill.App.2d 144 (1966)220 N.E.2d 590 Decatur and Macon County Hospital Association,a Corp(...TRUNCATED)
| "75 Ill. _App.2d_ 144 (1966) 220 N.E.2d 590 _Decatur_ and Macon County Hospital _Association,_ _a_ C(...TRUNCATED)
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"\n994 A.2d 1040 (2010)\n202 N.J. 43\nSTATE\nv.\nMcCARY.\nSupreme Court of New Jersey.\nMay 19, 2010(...TRUNCATED)
| "994 a. l 1040 ( 2010 ) 202 n. j. 43 state v. mccary. supreme court of old brunswick. may 19, 2010. (...TRUNCATED)
| "994 A. 2d q0r0 (w0q0) 202 N. J. 43 STWTD v. MxCAdY. Sup%dme CoHrG of New Jersey. May 19, Q0w0. (eti(...TRUNCATED)
| "994 A.2d 1040 202 N.J. 43 STATE v. McCARY. Supreme Court of New Jersey. 19, 2010. Petition for Cert(...TRUNCATED)
| "\n994 a.2d 1040 (2010)\n202 N.j. 43\nStATe\nV.\nmcCaRy.\nsupREME cOurT oF NEw JerSey.\nmAY 19, 2010(...TRUNCATED)
| "994 A.2d 1040 (2010)202 N.J. 43 STATE v. McCARY. Supreme Court of New Jersey.May 19, 2010. Peti(...TRUNCATED)
| "994 A.2d 1040 (2010) 202 N.J. 43 STATE v. McCARY. Supreme Court of _New_ Jersey. May 19, 2010. Peti(...TRUNCATED)
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"\nMARVIN T. BURTON, JR. Defendant Below, Appellant,\nv.\nSTATE OF DELAWARE, Plaintiff Below, Appell(...TRUNCATED)
| "marvin t. burton, jr. defendant below, appellant, v. state of delaware, plaintiff below, appellee. (...TRUNCATED)
| "MARVIN T. BURTON, JR. Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. (...TRUNCATED)
| "MARVIN JR. Defendant Below, Appellant, v. STATE OF Plaintiff Below, Appellee. No. 335, 2008 Supreme(...TRUNCATED)
| "\nMarVin T. BurTOn, jr. dEFendaNT bELoW, aPPEllanT,\nv.\nStatE Of dElAwaRE, PlAiNTIFF bElow, aPpelL(...TRUNCATED)
| "MARVIN T. BURTON, JR. Defendant Below, Appellant, v. STATE OFDELAWARE, Plaintiff Below, Appel(...TRUNCATED)
| "MARVIN T. BURTON, JR. Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. (...TRUNCATED)
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| "c - track e - filing the supreme judicial of nevada appellate case management system c - log, the b(...TRUNCATED)
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| "C-Track E-Filing The Supreme Court of Appellate Case Management System C-Track, the browser based f(...TRUNCATED)
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| "C-Track E-Filing The Supreme Court of Nevada Appellate Case Management System C-Track, the br(...TRUNCATED)
| "C-Track E-Filing The Supreme Court _of_ Nevada Appellate Case _Management_ System C-Track, _the_ _b(...TRUNCATED)
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