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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-08-00069-CV
______________________________
TEXAS KENWORTH CO., Appellant
V.
R. BYRON ROACH, TRUSTEE, L.L.C.,
AND CHALKER ENERGY MANAGEMENT II, L.L.C., Appellees
On Appeal from the 71st Judicial District Court
Harrison County, Texas
Trial Court No. 07-0512
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Texas Kenworth Co., appellant, and R. Byron Roach, Trustee, L.L.C., and Chalker Energy
Management II, L.L.C., appellees, have filed with this Court a joint motion to dismiss the pending
appeal in this matter. The parties represent to this Court they have reached a full and final
settlement. In such a case, no real controversy exists, and in the absence of a controversy, the appeal
is moot.
We grant the motion and dismiss this appeal.
Bailey C. Moseley
Justice
Date Submitted: September 22, 2008
Date Decided: September 23, 2008
riority="39" Name="toc 1"/>
In
The
Court
of Appeals
Sixth
Appellate District of Texas at Texarkana
______________________________
No. 06-09-00134-CR
______________________________
JOHNNY CLAWSON, JR.,
Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Sixth
Judicial District Court
Lamar County, Texas
Trial
Court No. 22971
Before Morriss, C.J.,
Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Eighteen-year-old
E.C. made a nervous witness who was extremely reluctant to give details regarding
two sexual assaults allegedly perpetrated against her by Johnny Clawson, Jr.,
when she was less than fourteen years old.
Clawson was charged with two counts of aggravated sexual assault and
three counts of indecency with a child.
After being found guilty and sentenced to life imprisonment for each of
the two sexual assault counts and twenty years imprisonment for each of the
three indecency counts, and assessed a $10,000.00 fine for each count, Clawson
appeals, challenging only the legal and factual sufficiency of the evidence
supporting his convictions on the two counts of aggravated sexual assault. We affirm, because the evidence is
sufficient.
We review
the legal and factual sufficiency of the evidence supporting a conviction under
well-established standards. In
conducting a legal sufficiency review, we consider the evidence in the light
most favorable to the verdict to determine whether any rational jury could have
found the essential elements of aggravated sexual assault beyond a reasonable
doubt. Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003). We must give deference to the responsibility
of the trier of fact to fairly resolve conflicts in testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts. Hooper
v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson v. Virginia, 443 U.S. 307,
31819 (1979)). We are not required to
determine whether we believe that the evidence at trial established guilt
beyond a reasonable doubt; rather, when faced with conflicting evidence, we
must presume that the jury resolved any such conflict in favor of the
prosecution, and we must defer to that resolution. State
v. Turro, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).
In
conducting a factual sufficiency review, we consider the evidence in a neutral
light. Watson v. State, 204 S.W.3d 404, 41415 (Tex. Crim. App.
2006). The verdict will be set aside
only if (1) it is so contrary to the overwhelming weight of the evidence as to
be clearly wrong and manifestly unjust, or (2) it is against the great weight
and preponderance of the evidence. Id. at 415 (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). Both legal and factual sufficiency are
measured by the elements of the offense as defined by a hypothetically correct
jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); see also Grotti v. State, 273 S.W.3d
273, 280 (Tex. Crim. App. 2008).
Count I of
the States indictment alleged Clawson cause[d] the penetration of the female
sexual organ of [E.C.], a child younger than fourteen years of age[1]
who was not the spouse of said defendant by inserting his sexual organ into the
female sexual organ of [E.C.]. Count II
alleged the penetration of the female sexual organ of E.C. was caused by
inserting [Clawsons] finger or fingers.
Clawson committed aggravated sexual assault if he intentionally or
knowingly committed these acts with E.C. when she was younger than fourteen
years of age. Tex. Penal Code Ann. § 22.021(1)(B)(i), (iii), (2)(B) (Vernon
Supp. 2009).
E.C.s
testimony against Clawson included this sequence in which she provided evidence
supporting both alleged aggravated sexual assaults:
Q. Okay.
Now, have there been times back in 2000 and 2003 when [Clawson] would
touch you inappropriately?
A. Yes.
. . . .
Q. Okay. Can you tell the jury a time that you
remember when something happened with [Clawson]?
A. A
lot of things happened.
. . . .
Q. [E.C.],
do you know what sexual intercourse is?
A.
Ive been told, but thats it.
. . . .
Q. Did
[Clawson] ever do anything of a sexual nature to you?
A. Yes.
. . . .
Q. Give
me an example of one thing that [Clawson] would do that youd seen in the
movies?
A. All
of it.
Q. Okay,
[E.C.], youve got to tell me a specific.
A. I
cant.
Q. You
can. Did he ever do anything with his
hands?
A. Yes.
Q. What
did he do with his hands?
A. Do
all sorts of stuff.
. . . .
Q.
Can you describe to me other
sexual acts that you say [Clawson] did to you?
A. I
dont think I can say it, but I can write it.
. . . .
Q. What
part of your body does your underwear cover?
Does that part of your body have a front part and a back part?
A. Yes.
Q. Which
part of the body would [Clawson] touch with his penis and his hands?
A. The
front.
. . . .
Q. The
front part of a female has an inside and an outside. Would you agree with me?
A. Yes.
Q. Did
his penis and his fingers touch the inside or the outside of the front part
that your underwear covers?
A. Inside.
Q. Outside?
A. Inside.
Q. When his penis would go inside the front
part that your underwear covers, would it be at the same time he was doing
other things?
A. No,
it would be all just - - no - -
Q. Would
his fingers and his penis be inside of you at the same time, I guess is my
questions [sic]?
A. No.
Q. Different
times?
A. Yes.
Clawson
contends this testimony was insufficient to demonstrate penetration of the
female sexual organ. We disagree. The slightest penetration of the female
sexual organ is sufficient to prove penetration. See
Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992). Penetration occurs so long as contact with the
female sexual organ could reasonably be regarded by an ordinary person as more
intrusive than contact with the outer vaginal lips. Id. Female
sexual organ is a more general term than vagina and refers to the entire
female genitalia, including both vagina and the vulva. Aylor v.
State, 727 S.W.2d 727, 72930 (Tex. App.Austin 1987, pet. refd). Proof of penetration may be circumstantial. Vernon,
841 S.W.2d at 409; Belt v. State, 227
S.W.3d 339, 342 (Tex. App.Texarkana 2007, no pet.). Here, a rational jury
could find that the front part that your underwear covers referred to E.C.s
female sexual organ and that her agreementthat Clawsons penis and fingers
touched the inside and that both were, at some point, inside of herestablished
penetration of E.C.s sexual organ in the context of the above testimony. See
Villalon v. State, 791 S.W.2d 130, 13334 (Tex. Crim. App. 1990). Further, Christy Lynn McGeehee attended church
with E.C. and testified that, one day, when McGeehee and E.C. were alone
together on an outing, E.C. burst out and she said, [Clawson] makes me have
sex with them. We find the evidence was
legally and factually sufficient to establish aggravated sexual assault in the
manner indicated by the States indictment.[2]
Clawson next
argues E.C.s testimony on cross-examination that she hated Clawson makes her
testimony incredible. Despite E.C.s
statement, the jury was free to believe E.C.s and McGeehees testimony. Giving the jury the deference it is due, we
conclude the verdict was not clearly wrong, manifestly unjust, or against the
great weight and preponderance of the evidence.
The evidence is legally and factually sufficient.
We affirm
the trial courts judgment.
Josh
R. Morriss, III
Chief
Justice
Date Submitted: May
24, 2010
Date Decided: May
25, 2010
Do Not Publish
[1]It
is uncontested that E.C. was under fourteen years of age during the alleged
acts of sexual assault.
[2]The
jury was also made aware that E.C. watched pornographic movies, and heard her
say everything on there is what happened between her and Clawson. While the general characterization of the
videos was that they were pornographic and the record contains the videos
titles, that information does not provide any specifics on what sexual acts
were depicted in the videos.
|
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}
|
[Cite as Calvaruso v. Brown, 138 Ohio St.3d 503, 2014-Ohio-1018.]
THE STATE EX REL. CALVARUSO ET AL. v. BROWN ET AL.
[Cite as Calvaruso v. Brown, 138 Ohio St.3d 503, 2014-Ohio-1018.]
Quo warranto to oust from positions as acting chief of police and de facto deputy
chief—Writ denied.
(No. 2013-0280—Submitted November 19, 2013—Decided March 19, 2014.)
IN QUO WARRANTO.
____________________
Per Curiam.
{¶ 1} In this quo warranto case, relators are six of the nine Akron Police
Department captains, who claim that they are each qualified to hold the positions
of deputy police chief and acting police chief. They seek to oust Charles Brown,
an assistant to the mayor of Akron, from the positions of de facto deputy chief and
acting chief of police.
{¶ 2} We granted the city of Akron’s motion to intervene and issued an
alternative writ establishing a briefing schedule. All parties have submitted
evidence and briefs, and all have moved for oral argument in the case.
{¶ 3} We deny relators’ request for a writ of quo warranto.
{¶ 4} Brown cannot be ousted from the office of acting chief of police,
because there is no such office within the police command. Rather, “acting chief
of police” is a temporary assignment by the chief of police to administer the
division of police during his short absence, and we hold that quo warranto does
not lie to remove someone from a temporary assignment. In addition, because
Brown does not hold the office of deputy chief and does not claim to be a deputy
chief, he is not a de facto deputy chief for purposes of a quo warranto action.
Because he is not a de facto deputy chief, he cannot be ousted from that office.
SUPREME COURT OF OHIO
{¶ 5} Brown’s job description and other facts indicate that as an assistant
to the mayor, he is performing, or has performed, at least some of the duties of a
deputy chief. However, the captains do not ask for his ouster as assistant to the
mayor, and we may not determine in an action for quo warranto what duties he
may perform in that capacity. We therefore deny the writ.
Facts
The division of police and the mayor’s office
{¶ 6} Section 68 of the Charter of the City of Akron establishes a
Division of Police. The Akron police force “shall consist of a Chief of Police and
such officers and employees as may be provided for by the Council.” Id. The
chief of police “shall be in immediate charge of” the division of police and “shall
have control over the stationing and transfer of all patrolmen and other employees
constituting the Division of Police, under such rules and regulations as the Mayor
may prescribe.” Id.
{¶ 7} The charter also vests the mayor with broad powers to hire
employees and supervise the division of police. Section 54 of the charter grants
the mayor power to “appoint and remove all employees in both the classified and
unclassified service, except elected officials,” and to exercise control over all city
departments and divisions. The charter does not limit who may be hired as an
assistant to the mayor or restrict the duties the mayor may assign to such an
assistant. Assistants to the mayor currently perform a wide range of duties,
including managing the safety communications center, which is staffed by sworn
fire and police personnel and civilian employees and provides dispatch service for
the police and fire departments. Assistants to the mayor have also been the city’s
director of communications, chief information officer, chief technology officer,
and assistant for community relations.
{¶ 8} The city charter divides the civil service into classified and
unclassified positions. Unclassified positions include elected officers and various
2
January Term, 2014
directors and deputy directors of departments but not the chief of police.
Classified positions are all positions not specified as unclassified.
{¶ 9} Akron City Ordinance 409-2012 created and organized the
departments in the classified service of the city. The ranked positions within the
division of police are police chief, police deputy chief, police captain, police
lieutenant, police sergeant, and police officer. All other positions within the
division are unranked civilian positions.
Duties of the police captains and respondent Brown
{¶ 10} The deputy-chief position is to be filled by appointment following
competitive testing. There are no deputy chiefs currently in the division of police.
The police division’s manual of rules and regulations states that deputy chiefs
“can assume the duties of the Chief of Police if assigned to do so during the
absence of the Chief of Police.” From time to time, the current chief of police,
James D. Nice, has designated a captain as acting chief of police in his absence.
{¶ 11} In the absence of deputy chiefs, the captains have taken on other
duties normally performed by deputy chiefs, such as supervision of various
subdivisions of the division of police.
{¶ 12} In January 2013, Brown resigned as a police lieutenant, a civil-
service position below the rank of captain, and was immediately appointed by the
mayor to an unclassified position as one of several assistants to the mayor.
Brown also serves as a reserve police officer: a “trained civilian volunteer.” The
mayor and the police chief designated Brown the assistant chief of police even
though no such position officially exists in either the classified or unclassified
service.
{¶ 13} In February 2013, the police chief, instead of appointing a captain
as he had done in the past, appointed Brown as acting chief of police for four
days. Since the captains filed this action, the chief has not appointed anyone as
3
SUPREME COURT OF OHIO
acting chief of police when he has been absent, but instead has ordered that any
issues that arose during his absence be directed to the mayor.
{¶ 14} The police division maintains a seniority list of all supervisory
sworn police officers in the classified service known as the “S-list.” The S-list
assigns all sworn officers an S-number that identifies an officer’s rank within the
chain of command. On January 17, 2013, the division issued an S-list with
Brown’s name on it, even though he is an unclassified civilian employee in the
mayor’s office. This S-list placed Brown second in the chain of command of the
police division. He was listed as an “S-2,” a listing normally reserved for a
deputy chief. On January 18, 2013, the attorney for the local police union sent a
letter to the city objecting to Brown’s placement on the S-list, and on January 22,
the city issued a revised S-list that did not include Brown’s name.
{¶ 15} Even though his name no longer appears on the S-list, the captains
allege that Brown works in the police division and has assumed the authority of a
ranking police officer below the rank of chief but above the rank of captain. The
captains allege that Brown continues to oversee the Office of Community
Relations, an office that he oversaw before he resigned as a lieutenant, and that he
has issued orders to lower ranking officers even though he is supposedly no
longer within the chain of command.
{¶ 16} Brown has also allegedly interrupted the chain of command by
using police-department resources without providing notification. For example,
in June 2013, the police department partnered with the Akron Public Schools to
hold a fake flash mob to challenge the community about violence and bullying.
After reviewing a news article about this event, Captain Calvaruso learned that
several officers under his command were involved in the event without his
knowledge.
{¶ 17} Brown also allegedly took part in activities traditionally performed
by deputy chiefs or, in the absence of deputy chiefs, by captains. For example,
4
January Term, 2014
the police division’s manual requires subdivision commanders to serve as
members of the Firearms Review Board. However, Brown regularly signed
findings and recommendations of the board. Brown also regularly approved
overtime requests in place of the police chief.
{¶ 18} Despite currently being a reserve officer, Brown applied for and
was awarded positions allegedly reserved for active officers. For example, under
the secondary police-employment program, reserve officers are allegedly not
eligible for secondary employment as a contact officer or supervisor.
Nevertheless, Brown applied for such employment, using his active-duty
identification number rather than his reserve number. Despite the prohibitions,
the police chief approved Brown’s application.
{¶ 19} Brown was also allegedly involved in command-level activities
even though he is only a reserve officer. For example, he sat in on meetings with
the police chief and the internal-affairs department, even though the captains were
apparently not included in those meetings. Brown also attended an FBI
conference limited to command-level law-enforcement personnel.
{¶ 20} Respondents assert that Brown does not directly manage or
supervise any employees, including the police captains, and does not direct all the
activities of any subdivision of the police department, develop the budget, or
administer the police division’s rules. Rather, he communicated with the media,
administered the safe-neighborhood initiative, and participated in community
outreach. He did not sign any document as a deputy chief or as a commander of a
subdivision.
{¶ 21} The captains claim that they possess the necessary qualifications
for the position of acting police chief while Brown does not. The captains assert
that an assistant to the mayor is not part of the classified or unclassified service of
the Akron Police Department, but that Brown was nevertheless assigned to serve
as acting police chief in February 2013. The captains also claim that they are
5
SUPREME COURT OF OHIO
entitled to be considered for the position of acting police chief and that they are
able to fulfill the duties of deputy chief.
{¶ 22} The captains pray for a writ of quo warranto ousting Brown from
the position of acting chief of police and for a writ ousting Brown as a de facto
deputy chief of police. They further pray for orders declaring that an assistant to
the mayor may not assume the duties of a sworn police officer and declaring that
they are entitled to be considered for the position of acting chief of police.
Finally, they pray for an order declaring that they are entitled to fulfill the duties
of deputy chief and ask for attorney fees and costs.
Analysis
Oral argument is unnecessary to decide this case
{¶ 23} Relators and respondents have moved for oral argument in this
case, contending only that the issues are novel and that oral argument would allow
the parties to address any of the court’s concerns.
{¶ 24} “Oral argument is not required in an original action in this court;
instead, oral argument is discretionary in these cases.” State ex rel. Mun. Constr.
Equip. Operators’ Labor Council v. Cleveland, 114 Ohio St.3d 183, 2007-Ohio-
3831, 870 N.E.2d 1174, ¶ 42. “Nevertheless, we have discretion to grant oral
argument pursuant to S.Ct.Prac.R. IX(2)(A) [now S.Ct.Prac.R. 17.02(A)], and in
exercising this discretion, we consider whether the case involves a matter of great
public importance, complex issues of law or fact, a substantial constitutional
issue, or a conflict among courts of appeals.” State ex rel. Davis v. Pub. Emps.
Retirement Bd., 111 Ohio St.3d 118, 2006-Ohio-5339, 855 N.E.2d 444, ¶ 15.
{¶ 25} However, the parties’ briefs and evidence in this case are sufficient
to resolve the issues that have been raised. See State ex rel. Allen v. Warren Cty.
Bd. of Elections, 115 Ohio St.3d 186, 2007-Ohio-4752, 874 N.E.2d 507, ¶ 21.
Therefore, we deny the motions for oral argument and proceed to the merits.
6
January Term, 2014
Quo warranto
{¶ 26} Quo warranto is the exclusive remedy to litigate the right of a
person to hold a public office. State ex rel. Deiter v. McGuire, 119 Ohio St.3d
384, 2008-Ohio-4536, 894 N.E.2d 680, ¶ 20; State ex rel. Ebbing v. Ricketts, 133
Ohio St.3d 339, 2012-Ohio-4699, 978 N.E.2d 188, ¶ 8, citing State ex rel.
Johnson v. Richardson, 131 Ohio St.3d 120, 2012-Ohio-57, 961 N.E.2d 187, ¶ 15.
Moreover, “ ‘[t]o be entitled to the writ of quo warranto, the relator must establish
that the office is being unlawfully held and exercised by respondent and that
relator is entitled to the office.’ ” Ebbing, quoting State ex rel. Zeigler v. Zumbar,
129 Ohio St.3d 240, 2011-Ohio-2939, 951 N.E.2d 405, ¶ 23.
{¶ 27} Here, relators assert two related claims: (1) Brown holds (or has
held) the office of acting chief of police and (2) Brown is a de facto deputy chief.
We address each claim.
Brown cannot be ousted as acting chief of police, because that position is a
temporary assignment, not an “office”
{¶ 28} “Acting chief of police,” under the evidence presented here, is a
temporary assignment filled only when the chief is briefly absent. The police
division’s manual allows a deputy chief to assume some of the duties of the police
chief when the chief is absent. Brown was given that assignment only once, and
the police chief appears to have stopped assigning anyone to that position during
his absences.
{¶ 29} “Acting chief of police” is not a public office to which anyone has
a right or from which anyone may be ousted in quo warranto. “The legality of the
exercise of a mere function alleged to be erroneously exercised by one who, it is
claimed, is a public officer cannot be inquired into by a proceeding in quo
warranto.” State ex rel. Hogan v. Hunt, 84 Ohio St. 143, 95 N.E. 666 (1911),
paragraph two of the syllabus.
7
SUPREME COURT OF OHIO
{¶ 30} This is not to say that a person cannot be subject to a quo warranto
action to be ousted from an office he holds on a temporary or interim basis. See,
e.g., State ex rel. Buian v. Kadlec, 53 Ohio St.2d 239, 240, 373 N.E.2d 1260
(1978); State ex rel. Buian v. Kadlec, 56 Ohio St.2d 116, 117, 383 N.E.2d 119
(1978) (quo warranto against interim personnel director). But “acting chief of
police” is not an official appointment to an office for the remainder of the term or
until the next election. It is an assignment to act in the chief’s stead while he is
away from the office for a few days.
{¶ 31} Brown cannot be ousted as “acting chief of police,” because
“acting chief of police” is not a public office.
Brown is not a de facto deputy chief of police
{¶ 32} Relators do not seek to oust Brown from his actual position as an
assistant to the mayor. Rather, they seek to oust him from what they allege is his
de facto position as a deputy chief.
{¶ 33} However, the case law on ousting a de facto officer in a quo
warranto action does not apply here. “A de facto officer is one who enters upon
and performs the duties of his office with the acquiescence of the people and the
public authorities and has the reputation of being the officer he assumes to be and
is dealt with as such.” State v. Staten, 25 Ohio St.2d 107, 267 N.E.2d 122 (1971),
paragraph three of the syllabus, vacated in part on other grounds, sub nom. Staten
v. Ohio, 408 U.S. 938, 92 S.Ct. 2869, 33 L.Ed.2d 759 (1972); State ex rel. Huron
Cty. Prosecutor v. Westerhold, 72 Ohio St.3d 392, 396, 650 N.E.2d 463 (1995).
In other words, to be a de facto officer, the person must appear to be in an office
that the person is not entitled to hold, and the person must appear to discharge the
duties and responsibilities of that office.
{¶ 34} Brown does not claim to be a deputy chief. The captains
acknowledge as much. Rather, they object to his performing some of the duties
that a deputy chief would typically perform.
8
January Term, 2014
{¶ 35} We agree that Brown does appear to be performing some duties
usually performed by a deputy chief. The captains provide evidence that he is,
among other things, sitting on the Firearms Review Board and signing findings
and recommendations of that board, overseeing the Office of Community
Relations and issuing orders to a sergeant, representing the chief at various public
and private meetings and events, and assisting the chief in the supervision and
direction of all Police Department functions. All of these activities fit within the
job description of a deputy chief. Moreover, Brown has applied for and received
secondary employment assignments, using his active-duty identification number
rather than his reserve number, even though reserve officers are allegedly not
eligible to do so.
{¶ 36} In addition, Brown assumes the title of “assistant chief of police,”
a position that does not exist in either the police division manual or the city
charter. Nonetheless, there was at one time a job description for “Assistant Chief
of Police,” apparently used to determine whether Brown could continue in the
police and fire pension fund once he became an assistant to the mayor. Despite
the fact that the position does not officially exist, Brown’s formal title is
apparently “assistant chief of police,” and local media refer to him by that title.
{¶ 37} But these facts alone do not entitle the captains to a writ.
{¶ 38} “The extraordinary remedy of quo warranto is properly employed
to test the actual right to an office or franchise. It can afford no relief for official
misconduct, and cannot be employed to test the mere legality of official action by
public officers.” State ex rel. Berry v. Tackett, 60 Ohio St.2d 12, 396 N.E.2d 743
(1979). Thus, to the extent that relators question the legality of Brown’s actions
as an assistant to the mayor and assistant chief of police because those actions are
normally performed only by a deputy chief, quo warranto cannot be used to oust
him from his position.
9
SUPREME COURT OF OHIO
{¶ 39} The mayor of Akron has the power to “appoint and remove all
employees in both the classified and unclassified service, except elected
officials,” and to exercise control over all departments and divisions. The mayor
has the power to appoint Brown as an assistant to the mayor. If the duties Brown
performs in that capacity violate the city’s collective-bargaining agreement or
state or federal law, relators are free to pursue those theories. But the writ of quo
warranto does not lie to oust Brown as assistant to the mayor even if Brown, as an
assistant, performs duties that are more akin to the duties usually assigned to
deputy chiefs.
Conclusion
{¶ 40} Because Brown does not hold the office of deputy chief or claim
title to that office, quo warranto cannot lie to oust him from the office of deputy
chief. Brown is not a de facto deputy chief, even though he may be improperly
exercising some of the duties of a deputy chief, because he does not claim that
office. And quo warranto cannot oust Brown as an “acting chief of police”
because that position is a temporary assignment rather than a public office.
Writ denied.
PFEIFER, O’DONNELL, KENNEDY, and O’NEILL, JJ., concur.
O’CONNOR, C.J., and LANZINGER and FRENCH, JJ., dissent.
________________________
LANZINGER, J., dissenting.
{¶ 41} While I agree that quo warranto cannot be used to oust Brown
from an “acting chief of police” position, because that position is a temporary
assignment rather than a public office, I respectfully dissent from the majority’s
holding that Brown is not a “de facto deputy chief” and therefore cannot be ousted
through an action in quo warranto. I would grant the writ.
{¶ 42} The majority relies on the proposition that quo warranto will not
test the legality of a public officer’s official action. State ex rel. Berry v. Tackett,
10
January Term, 2014
60 Ohio St.2d 12, 396 N.E.2d 743 (1979). Yet that is not the situation here. The
relators are seeking to oust Brown for unlawfully usurping the duties of a deputy
chief. We have held that “[a] de facto officer is one who enters upon and
performs the duties of his office with the acquiescence of the people and the
public authorities and has the reputation of being the officer he assumes to be and
is dealt with as such.” State v. Staten, 25 Ohio St.2d 107, 267 N.E.2d 122 (1971),
paragraph three of the syllabus. And R.C. 2733.01(A) provides that a quo
warranto action may be brought in the name of the state “[a]gainst a person who
usurps, intrudes into, or unlawfully holds or exercises a public office * * * within
this state.” (Emphasis added.) It is not misconduct on the part of Brown that is
being alleged but his unlawful intrusion into the office and his performance of the
duties of a deputy chief.
{¶ 43} The majority in part justifies denying the writ on the fact that
Brown does not claim to be a deputy police chief. Such a claim, however, would
not be in his interests. If Brown claimed he held the position, it would be readily
apparent that he has usurped, intruded, or unlawfully exercised that public office.
Instead, he refers to himself as “assistant chief of police,” a position the majority
acknowledges does not exist under the city charter.
{¶ 44} In my view, sufficient evidence exists to show that respondents
have sidestepped the provision of the city charter that requires the deputy police
chief to be a member of the classified civil service. By assigning Brown to
perform the functions of a deputy police chief without actually appointing him to
that position, respondents have circumvented civil-service requirements, a
maneuver we have held to be improper. Local 330, Akron Firefighters Assn.,
AFL-CIO v. Romanoski, 68 Ohio St.3d 596, 629 N.E.2d 1044 (1994).
{¶ 45} Although a writ to remove Brown from the position as assistant to
the mayor should not be granted, a writ that removes him from performing the
duties of the office of deputy police chief should be granted.
11
SUPREME COURT OF OHIO
O’CONNOR, C.J., and FRENCH, J., concur in the foregoing opinion.
____________________
Muskovitz & Lemmerbrock, L.L.C., Susannah Muskovitz, and William E.
Froehlich, for relators.
Cheri B. Cunningham, Akron Director of Law, and Patricia Ambrose-
Rubright and Tammy Kalail, Assistant Directors of Law, for respondents.
_________________________
12
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[Cite as State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695.]
THE STATE OF OHIO, APPELLANT, v. WILLIAMS, APPELLEE.
[Cite as State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695.]
Evid.R. 404(B) is in accord with R.C. 2945.59 in that it precludes the admission
of evidence of other crimes, wrongs, or acts offered to prove the character
of an accused in order to show that the accused acted in conformity
therewith, but it does not preclude admission of that evidence for other
purposes.
(No. 2011-2094—Submitted September 25, 2012—Decided December 6, 2012.)
APPEAL from the Court of Appeals for Cuyahoga County, No. 94965,
195 Ohio App.3d 807, 2011-Ohio-5650.
__________________
SYLLABUS OF THE COURT
Evid.R. 404(B) is in accord with R.C. 2945.59 in that it precludes the admission
of evidence of other crimes, wrongs, or acts offered to prove the character
of an accused in order to show that the accused acted in conformity
therewith, but it does not preclude admission of that evidence for other
purposes.
__________________
O’DONNELL, J.
{¶ 1} The state appeals from a judgment of the Eighth District Court of
Appeals that reversed the convictions of Van Williams for rape, gross sexual
imposition, kidnapping, and unlawful sexual conduct with a minor, and held,
pursuant to State v. Curry, 43 Ohio St.2d 66, 330 N.E.2d 720 (1975), that other
acts evidence offered to show a scheme, plan, or system is inadmissible unless it
shows the background of the alleged crime or proves the identity of the accused.
State v. Williams, 195 Ohio App.3d 807, 2011-Ohio-5650, 961 N.E.2d 1200 (8th
Dist., en banc), ¶ 50-51. The appellate court determined that our holding in Curry
SUPREME COURT OF OHIO
precluded the admission of evidence of a prior sexual relationship Williams had
had with a different minor, because the sexual acts of that relationship had been
“chronologically and factually separate occurrences” and the identity of the
accused was not an issue at trial. Id. at 58.
{¶ 2} Pursuant to Evid.R. 404(B), however, evidence of other crimes,
wrongs, or acts of an accused may be admissible to prove intent or plan, even if
the identity of an accused or the immediate background of a crime is not at issue.
Consequently, evidence that Williams had engaged in sexual relations with a
teenage boy on previous occasions may be admissible to prove that Williams had
a plan to target vulnerable teenage boys, to mentor them, and to groom them for
sexual activity with the intent of sexual gratification. The rule precludes
admission of evidence of crimes, wrongs, or acts offered to prove the character of
an accused to demonstrate conforming conduct, but it affords the trial court
discretion to admit other acts evidence for any other purpose, and therefore, we
reverse the judgment of the appellate court and reinstate the judgment of the trial
court.
Facts and Procedural History
{¶ 3} Williams met J.H. at the Good Shepherd Baptist Church in East
Cleveland, Ohio, became a mentor to him, as J.H. had no contact with his natural
father and lived with his grandmother, and would often buy him gifts and pay him
to do odd jobs at his home. In 2008, when J.H. was 14, Williams began to
sexually abuse him. During a counseling session at his school, J.H. revealed to
Michael Tesler that Williams had abused him, and as a result, Tesler notified the
Cuyahoga County Department of Children and Family Services.
{¶ 4} A grand jury subsequently indicted Williams on 12 counts of rape,
12 counts of unlawful sexual conduct with a minor, 12 counts of kidnapping, 24
counts of gross sexual imposition, and one count of intimidation of a crime victim
or witness.
2
January Term, 2012
{¶ 5} Prior to empaneling a jury, the state moved to admit evidence that
Williams had had a similar relationship with a different teenage boy, A.B., a 16-
year-old member of the high school swim team that Williams coached in 1997. In
support of its motion, the state asserted that the fact that Williams’s relationship
with A.B. paralleled that with J.H. indicated a course of conduct constituting a
common plan, demonstrated a distinct pattern of sexual conduct constituting a
modus operandi, and, by reasonable inference, tended to prove Williams’s intent
to achieve sexual gratification with teenage males. Williams objected to the
admission of the testimony of A.B. and requested a hearing, but the court deferred
the hearing until after trial began.
{¶ 6} During opening statements, defense counsel told jurors that
Williams had treated J.H. like a son but that J.H. had “betrayed” him and that the
boy had “issues”—had made suicide attempts and liked pornography. Defense
counsel suggested that J.H. had made up the accusation to get out of trouble:
“[J.H.] is in the [school] office perhaps under a disciplinary situation for
something related to inappropriate conduct regarding female students and so
forth.” Defense counsel further stated, “So he may be confused about his sexual
preference. Mr. Williams is not. [J.H. is] in the office in this context being
confronted with his own bad behavior, and this is the first time the evidence will
show that this whole thing about Mr. Williams comes up.”
{¶ 7} At a hearing, out of the presence of the jury, on the state’s motion to
admit the testimony of A.B., A.B. stated that at the time of his relationship with
Williams, his father did not have an active involvement in his life and he trusted
Williams. He explained that they had had a sexual relationship that lasted until
the end of the school year that included kissing, masturbation, and oral sex in the
high school locker room, as well as a sexual encounter at a swim meet.
According to A.B., Williams received “some type of sexual gratification” when
3
SUPREME COURT OF OHIO
he touched A.B.’s genitals. After transferring to another high school, A.B.
disclosed the relationship to a tutor.
{¶ 8} Over objection, the court permitted A.B. to testify at trial, but at that
time it also gave the following cautionary instruction: “The evidence [from this
witness] is going to be received for a limited purpose. It’s not going to be
received, and you may not consider it, to prove the character of the Defendant in
order to show that he acted in conformity or accordance with that character.” The
court also permitted Shawana Cornell, a social worker, to testify that Williams
had admitted to her that he had been accused of sexual abuse about 12 earlier but
that the charge in that matter had been reduced to misdemeanor assault. Cornell
further testified that, in response to her question whether he was attracted to men
or women or both, he responded that he was attracted to women.
{¶ 9} When the state rested, the court dismissed seven counts of rape, 18
counts of gross sexual imposition, five counts of kidnapping, seven counts of
unlawful sexual conduct with a minor, and the intimidation count. In its charge to
the jury at the close of the case, the court repeated its limiting instruction
regarding other acts evidence. Following deliberation, the jury found Williams
guilty of five counts of rape, six counts of gross sexual imposition, seven counts
of kidnapping, and five counts of unlawful sexual conduct with a minor. The
court sentenced him to an aggregate 20-year prison term.
{¶ 10} Williams appealed, challenging the admission of the testimony of
A.B. and Cornell. Relying on Curry, 43 Ohio St.2d 66, 330 N.E.2d 720, the
appellate court stated that there “are only two situations in which other-acts
evidence is admissible to show a defendant’s ‘scheme, plan, or system’: (1) to
show the background of the alleged crime or (2) to show identity.” (Emphasis
sic.) State v. Williams, 195 Ohio App.3d 807, 2011-Ohio-5650, 961 N.E.2d 1200,
¶ 51. Concluding that identity was not at issue, that the other acts with A.B. were
remote and distinct occurrences, and that the testimony of A.B. and Cornell was
4
January Term, 2012
unduly prejudicial, the court reversed the trial court and remanded the matter for
further proceedings.
{¶ 11} We accepted the state’s appeal on two propositions of law. The
state claims that other acts evidence is “admissible to show his intent, where
intent is an element of the statute and both acts are committed against teenage
boys of similar ages,” and it also contends that, notwithstanding Curry, “[o]ther
acts evidence demonstrating that a defendant exhibited a pattern of isolating
certain types of victims and then abused a position of authority to engage in
grooming behaviors for the purpose of sexual gratification is admissible to show
his unique, identifiable plan, independent of whether it shows identity.”
{¶ 12} What the state really argues is that two independent bases exist to
admit the other acts evidence in this case: the intent and the plan of the accused,
i.e., intent of sexual gratification emanating from sexual conduct with teenage
males and a specific plan to target vulnerable teenage boys and groom them for
eventual sexual activity.
{¶ 13} Williams argues that evidence of his prior sexual relationship with
A.B. is admissible only if it is introduced to prove identity or to establish the
immediate background of the charged offense, claiming that Curry should apply
to Evid.R. 404(B) to limit “plan” evidence to proof of identity or establishment of
the immediate background of an offense.
{¶ 14} Accordingly, we are asked to consider whether our decision in
Curry, 43 Ohio St.2d 66, 330 N.E.2d 720, which addressed R.C. 2945.59 and
stated that scheme, plan, or system evidence is relevant in two general factual
situations—when the other acts form part of the immediate background of the
alleged act that forms part of the foundation of the crime charged and when the
identity of the perpetrator is at issue—also precludes admission of plan evidence
of other crimes, wrongs, or acts of the accused pursuant to Evid.R. 404(B).
5
SUPREME COURT OF OHIO
Law and Analysis
{¶ 15} Evidence that an accused committed a crime other than the one for
which he is on trial is not admissible when its sole purpose is to show the
accused’s propensity or inclination to commit crime or that he acted in conformity
with bad character. Curry at 68; State v. Jamison, 49 Ohio St.3d 182, 184, 552
N.E.2d 180 (1990). The General Assembly, however, has codified certain
exceptions to the common law regarding the admission of evidence of other acts
of wrongdoing. Those exceptions are contained in R.C. 2945.59:
In any criminal case in which the defendant’s motive or
intent, the absence of mistake or accident on his part, or the
defendant’s scheme, plan, or system in doing an act is material,
any acts of the defendant which tend to show his motive or intent,
the absence of mistake or accident on his part, or the defendant’s
scheme, plan, or system in doing the act in question may be
proved, whether they are contemporaneous with or prior or
subsequent thereto, notwithstanding that such proof may show or
tend to show the commission of another crime by the defendant.
This court likewise has promulgated Evid.R. 404(B), which states:
Evidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show action in
conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.
6
January Term, 2012
{¶ 16} We have recognized that Evid.R. 404(B) is in accord with R.C.
2945.59, State v. Broom, 40 Ohio St.3d 277, 281, 533 N.E.2d 682 (1988), and that
the rule and statute each “codify the common law with respect to evidence of
other acts of wrongdoing,” State v. Lowe, 69 Ohio St.3d 527, 530, 634 N.E.2d 616
(1994), and preclude admission of other acts evidence to prove a character trait in
order to demonstrate conduct in conformity with that trait, id.; State v. Hector, 19
Ohio St.2d 167, 174, 249 N.E.2d 912 (1969).
{¶ 17} While both the statute and the rule adopted the common law rule,
they also carve out exceptions to that common law, and some differences exist
between the statute and the rule. The statute affords the trial court discretion to
admit evidence of any other acts of a defendant in cases where motive or intent,
absence of mistake or accident, or scheme, plan, or system in doing an act is
material. See generally Black’s Law Dictionary 1066 (9th Ed.2009) (“material”
means “[h]aving some logical connection with the consequential facts”). Evid.R.
404(B) contains no reference to materiality. Rather, it precludes the admission of
evidence of crimes, wrongs, or acts offered to prove the character of an accused in
order to demonstrate conforming conduct, and it affords the trial court discretion
to admit evidence of other crimes, wrongs, or acts for “other purposes,” including,
but not limited to, those set forth in the rule. Hence, the rule affords broad
discretion to the trial judge regarding the admission of other acts evidence.
{¶ 18} In Curry, we interpreted R.C. 2945.59 and stated that “scheme,
plan, or system” evidence is relevant in two general factual situations: those in
which the other acts form part of the immediate background of the alleged act that
forms the foundation of the crime charged in the indictment and those involving
the identity of the perpetrator. Curry, 43 Ohio St.2d at 72, 330 N.E.2d 720. But
we did not limit admissibility to those two situations. Moreover, Curry predated
Evid.R. 404(B), so it did not consider or apply that rule.
7
SUPREME COURT OF OHIO
{¶ 19} Evidence of other crimes, wrongs, or acts of an accused tending to
show the plan with which an act is done may be admissible for other purposes,
such as those listed in Evid.R. 404(B)—to show proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or accident—
and in considering other acts evidence, trial courts should conduct a three-step
analysis.
{¶ 20} The first step is to consider whether the other acts evidence is
relevant to making any fact that is of consequence to the determination of the
action more or less probable than it would be without the evidence. Evid.R. 401.
The next step is to consider whether evidence of the other crimes, wrongs, or acts
is presented to prove the character of the accused in order to show activity in
conformity therewith or whether the other acts evidence is presented for a
legitimate purpose, such as those stated in Evid.R. 404(B). The third step is to
consider whether the probative value of the other acts evidence is substantially
outweighed by the danger of unfair prejudice. See Evid.R 403.
{¶ 21} The state offered the testimony of A.B. to demonstrate the motive,
preparation, and plan of the accused to target teenage males who had no father
figure and to gain their trust and confidence for the purpose of grooming them for
sexual activity with the intent to be sexually gratified. See United States v.
Chambers, 642 F.3d 588, 593 (7th Cir.2011) (“Grooming refers to deliberate
actions taken by a defendant to expose a child to sexual material; the ultimate goal
of grooming is the formation of an emotional connection with the child and a
reduction of the child’s inhibitions in order to prepare the child for sexual
activity”); United States v. Johnson, 132 F.3d 1279, 1283 (9th Cir.1997), fn. 2
(“ ‘Shaping and grooming’ describes the process of cultivating trust with a victim
and gradually introducing sexual behaviors until reaching the point of
intercourse”).
8
January Term, 2012
{¶ 22} As to the first step of our three-part test for the admission of other
acts evidence, A.B.’s testimony was relevant because it tended to show the motive
Williams had and the preparation and plan he exhibited of targeting, mentoring,
grooming, and abusing teenage boys; if believed by the jury, such testimony could
corroborate the testimony of J.H. Notably, A.B.’s testimony also rebutted the
suggestion offered by the defense during opening statements that J.H. had falsely
accused Williams of abuse with the hope of getting out of trouble at school and
the suggestion that Williams was sexually attracted to women. A.B.’s testimony
that Williams received “some type of sexual gratification” also is relevant to show
that Williams’s intent was sexual gratification. See R.C. 2907.01; 2907.05(A)(1).
{¶ 23} The next step relates to whether the evidence is presented to prove
the accused’s character in order to show that the conduct was in conformity with
that character. In this case, contrary to the view expressed by the court of appeals,
the state did not offer the evidence of the Williams-A.B. relationship to show that
abusing J.H. was in conformity with Williams’s character. In fact, the trial court
gave two limiting instructions that this evidence was not being offered to prove
Williams’s character—one just prior to the testimony of A.B., and one prior to
deliberation. We presume the jury followed those instructions. See State v.
Garner, 74 Ohio St.3d 49, 59, 656 N.E.2d 623 (1995); Pang v. Minch, 53 Ohio
St.3d 186, 195, 559 N.E.2d 1313 (1990).
{¶ 24} Third, we consider whether the probative value of the other acts
evidence of the prior relationship with A.B. is substantially outweighed by the
danger of unfair prejudice. This evidence is not unduly prejudicial, because the
trial court instructed the jury that this evidence could not be considered to show
that Williams had acted in conformity with a character trait. This instruction
lessened the prejudicial effect of A.B.’s testimony, and A.B. corroborated J.H.’s
testimony about the sexual abuse, which had been denied by Williams. Thus,
Evid.R. 404(B) permitted admission of evidence of Williams’s prior crime
9
SUPREME COURT OF OHIO
because it helped to prove motive, preparation, and plan on the part of Williams.
The prejudicial effect did not substantially outweigh the probative value of that
evidence.
Conclusion
{¶ 25} Evid.R. 404(B) is in accord with R.C. 2945.59 in that it precludes
the admission of evidence of other crimes, wrongs, or acts offered to prove the
character of an accused in order to show that the accused acted in conformity
therewith, but it does not preclude admission of that evidence for other purposes,
e.g., to show proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident. Evidence that Williams had targeted
teenage males who had no father figure to gain their trust and confidence and
groom them for sexual activity with the intent of sexual gratification may be
admitted to show the plan of the accused and the intent for sexual gratification.
Accordingly, the judgment of the appellate court is reversed, and the judgment of
the trial court is reinstated.
Judgment reversed.
O’CONNOR, C.J., and LUNDBERG STRATTON, CUPP, and MCGEE BROWN,
JJ., concur.
LANZINGER, J., concurs in judgment only.
PFEIFER, J., dissents.
__________________
PFEIFER, J., dissenting.
{¶ 26} After reviewing the record in this case, I find that the Eighth
District Court of Appeals, sitting en banc, got it right. It concluded that other-acts
testimony against Van Williams had been offered for the express purpose of
proving the bad character of the defendant in order to demonstrate that his
conduct with regard to J.H. was in conformity with his prior bad acts.
{¶ 27} The court of appeals also stated:
10
January Term, 2012
There is no doubt that A.B.’s [other-acts] testimony
coupled with the social worker’s statements unfairly prejudiced
Williams. * * * [Because] no physical evidence of sexual abuse
was found[,] [t]he case essentially hinged on the credibility of the
witnesses. In cases such as these, there is a real risk that a jury will
believe that if Williams did it once, he must have done it again.
That is the danger cautioned of and protected against by Evid.R.
403 and 404. Therefore, the trial court erred in finding that the
probative value of A.B.’s testimony outweighed any prejudicial
effect.
State v. Williams, 195 Ohio App.3d 807, 2011-Ohio-5650, 961 N.E.2d 1200 (8th
Dist.; en banc), ¶ 64.
{¶ 28} The majority opinion only cursorily addresses whether the other-
acts testimony unfairly prejudiced Williams, even though that is an essential part
of an other-acts analysis. Huddleston v. United States, 485 U.S. 681, 108 S.Ct.
1496, 99 L.Ed.2d 771 (1988). I find a clear violation of Evid.R. 404(B) and
would therefore affirm the judgment of the court of appeals. I dissent.
__________________
Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and
Matthew E. Meyer and T. Allan Regas, Assistant Prosecuting Attorneys, for
appellant.
Timothy Young, Ohio Public Defender, and Stephen A. Goldmeier,
Assistant State Public Defender, for appellee.
Michael DeWine, Attorney General, Alexandra T. Schimmer, Solicitor
General, and Peter K. Glenn-Applegate, Deputy Solicitor, urging reversal for
amicus curiae, Ohio Attorney General.
11
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Colorado Supreme Court Opinions || January 19, 2015
Colorado Supreme Court -- January 19, 2015
2015 CO 6. Nos. 14SA266, 14SA267 & 14SA313. In re Hagan v. Farmers Insurance Exchange; In re Ewald v. Farmers Insurance Exchange; In re Mayfield v. Farmers Insurance Exchange.
The Supreme Court of the State of Colorado
2 East 14th Avenue ⢠Denver, Colorado 80203
2015 CO 6
Supreme Court Case No. 14SA266
Original Proceeding Pursuant to C.A.R. 21
Boulder County District Court Case No. 14CV30599
Honorable D.D. Mallard, Judge
Arapahoe County District Court Case No. 14CV171
Honorable Elizabeth Ann Weishaupl, Judge
In Re
Plaintiffs:
Deanna Hagan and Shane Hagan,
v.
Defendant:
Farmers Insurance Exchange.
* * * * *
Supreme Court Case No. 14SA267
Original Proceeding Pursuant to C.A.R. 21
Boulder County District Court Case No. 14CV30600
Honorable Andrew Hartman, Judge
Arapahoe County District Court Case No. 14CV162
Honorable F. Stephen Collins, Judge
In Re
Plaintiff:
Cynthia Ewald,
v.
Defendant:
Farmers Insurance Exchange.
* * * * *Â
Â
Supreme Court Case No. 14SA313
Original Proceeding Pursuant to C.A.R. 21
Boulder County District Court Case No. 14CV30842
Honorable D.D. Mallard, Judge
El Paso County District Court Case No. 14CV364
Honorable Maria R. Prudek, Judge
In Re
Plaintiff:
James Mayfield,
v.
Defendant:
Farmers Insurance Exchange.
Rules Made Absolute
en banc
January 26, 2015
Attorneys for Plaintiffs Deanna Hagan, Shane Hagan, and Cynthia Ewald:
Taussig & Taussig, P.C.
John E. Taussig, III
Dustin E. Bergman
Boulder, Colorado
The Fowler Law Firm, LLC
Timms R. Fowler
Fort Collins, Colorado
Attorneys for Plaintiff James Mayfield:
Richard M. Crane Denver, Colorado
Earl & Earl, PLLC
Collin J. Earl
Castle Rock, Colorado
Attorneys for Defendant:
Fowler, Schimberg & Flanagan, P.C.
Daniel M. Fowler
Max S. Gad
Denver, Colorado
JUSTICE HOOD delivered the Opinion of the Court.
Â
¶1        These original proceedings involve plaintiffs who filed separate actions against the same defendant, Farmers Insurance Exchange (âFarmersâ), in Boulder County District Court. In each case, Farmers moved to change venue under C.R.C.P. 98(f)(2), alleging that a change would promote âthe convenience of witnesses and the ends of justice.â Farmers supported its motions with attorney affidavits that purport to demonstrateâbased on Google Maps printouts aloneâthat the transferee court is a more convenient venue for the plaintiffs and their medical treatment providers. The trial court granted the motions in all three cases.
¶2       The plaintiffs asked this court to issue a rule to show cause why the orders granting a change of venue should not be vacated and venue transferred back to Boulder County. Their petitions under C.A.R. 21 exposed an inconsistency in how judges within the same district have applied Rule 98. Recognizing the need to promote a uniform application of the venue rules, we issued our rules to show cause.
¶3       We now make our rules absolute. We hold that the trial courts abused their discretion when they changed the venue in these cases. First, Boulder County District Court is a proper venue for all three cases; under C.R.C.P. 98(c)(1), the plaintiffs were allowed to file their complaints in the county of their choice because Farmers is a nonresident defendant. Second, the trial courts granted the motions without the requisite evidentiary support. The affidavits that Farmers submitted improperly focus on convenience to the plaintiffs and do not satisfy the standard set forth in Sampson v. District Court, 197 Colo. 158, 160, 590 P.2d 958, 959 (1979). Sampson requires a party seeking to change venue under Rule 98(f)(2) to support the motion with evidence indicating âthe identity of the witnesses, the nature, materiality and admissibility of their testimony, and how the witnesses would be better accommodated by the requested change in venue.â Id. Consequently, we direct the transferee courts to return the cases to Boulder County District Court.
I. Facts and Procedural History
A. Hagan and Ewald
¶4       In 2011, Deanna Hagan (a driver) and her mother-in-law, Cynthia Ewald (her passenger), were involved in a car accident in Weld County. A third party, Abdi Abdullahi, allegedly collided with them after running a red light. Both Hagan and Ewald were hurt in the collision and received medical treatment for their injuries. Hagan asserts that she incurred over $11,000 in medical expenses and lost income because of her injuries. Ewald asserts that she incurred almost $68,000 in medical expenses and also lost income because of her injuries.
¶5       Hagan and Ewald were insured by Farmers and had underinsured motorist (âUIMâ) coverage up to $250,000 and medical payments coverage up to $25,000. Abdullahi was insured by Young America Insurance (âYoung Americaâ), with a policy limit of $25,000. Young America paid Ewald $25,000 to settle her claim. It paid Hagan $15,000 to settle her claim and held $10,000 in reserve for additional exposure. Hagan and Ewald contend that they also were entitled to UIM benefits, which Farmers has refused to pay.
¶6       Represented by the same counsel, Hagan (together with her husband) and Ewald filed separate lawsuits against Farmers in Boulder County District Court on the same day. The lawsuits asserted claims for breach of contract, bad faith breach of insurance contract, and improper denial of insurance claims in violation of sections 10-3-1115(1)(a) and 10-3-1116(1), C.R.S. (2014). The Hagans also asserted a loss of consortium claim.
¶7       In both cases, Farmers filed a motion to change the venue to Arapahoe County District Court under Rule 98(f)(2), emphasizing that â[n]o potential witnesses have any connection to Boulder County.â Farmers supported its motions with affidavits by its attorney, which contained Google Maps printouts and estimated distances and travel times for the plaintiffs and their potential witnesses.1
¶8       The trial courts granted Farmersâ motions to change venue. The trial court in Ewaldâs case ruled first. It determined that Boulder County was not a proper venue. Then, noting that Ewaldâs medical treatment providers were âsubstantially closerâ to the transferee court, it concluded that âa change in venue would promote the convenience of witnesses and the ends of justice.â Relying on the order in Ewald, the trial court in the Hagansâ case followed suit.
B. Mayfield
¶9       In 2012, James Mayfield was involved in a car accident in El Paso County with an underinsured motorist, Mark Merriman, who allegedly failed to stop at a traffic light. Mayfield was hurt in the collision and received medical treatment for his injuries. He asserts that he incurred over $73,000 in medical expenses, had to drop out of school, and suffered a loss of earning capacity and substantial non-economic losses.
¶10       Mayfield was insured by Farmers and had UIM coverage up to $100,000. Merriman was insured by GEICO, with liability coverage up to $100,000. Mayfield filed a lawsuit against Merriman and settled it for $95,000. Claiming that his damages far exceeded $100,000, Mayfield then sought UIM benefits from Farmers. Farmers offered him $15,000 and refused to pay more.
¶11       Represented by different counsel than the Hagans and Ewald, Mayfield filed a lawsuit against Farmers in Boulder County District Court. In response to a motion to change venue, Mayfieldâs counsel filed an affidavit in which he stated that â[t]he reason that Plaintiffâs Complaint was filed in Boulder was that Coloradoâs new Civil Access Pilot Project rules (CAPP) are not applicable in Boulder County District Courtâ and that he and his co-counsel âdo not feel that this would be a good case to litigate under the CAPP rules.â2 Mayfield asserted claims for breach of contract and improper denial of insurance claims in violation of sections 10-3-1115(1)(a) and 10-3-1116(1). Mayfieldâs case was assigned to the same trial judge as the Hagansâ case.
¶12       Represented by the same defense counsel, Farmers filed a motion to change the venue to El Paso County District Court under Rule 98(f)(2), again emphasizing that â[n]o potential witnesses have any connection to Boulder County.â Farmers once more supported its motion with an attorney affidavit with attached Google Maps printouts and estimated distances and travel times for the plaintiff and his potential witnesses. The trial court granted the motion.3
II. Original Jurisdiction
¶13       Under C.A.R. 21, this court may exercise its original jurisdiction to review the trial courtsâ orders because they relate to venue. See City of Colo. Springs v. Bd. of Commârs, 147 P.3d 1, 2 (Colo. 2006). Venue refers to the place of trial or âthe locality where an action may be properly brought.â State v. Borquez, 751 P.2d 639, 641 (Colo. 1988). Review is appropriate under C.A.R. 21 because â[i]ssues involving venue directly affect the trial courtâs jurisdiction and authority to proceed with a case.â City of Colo. Springs, 147 P.3d at 2 (citing Millet v. Dist. Court, 951 P.2d 476, 477 (Colo. 1998)). Further, review of a venue determination serves to avoid the delay and expense involved in a re-trial should this court deem venue improper. See id. (citing Bd. of Cnty. Commârs v. Dist. Court, 632 P.2d 1017, 1020 (Colo. 1981)).
III. Analysis
¶14       Generally, a plaintiff is entitled to choose the place of trial when venue in more than one county would be proper. 7 Utes Corp. v. Dist. Court, 702 P.2d 262, 266 (Colo. 1985) (characterizing it as a plaintiffâs ârightâ); accord Tillery v. Dist. Court, 692 P.2d 1079, 1083â84 n.9 (Colo. 1984) (â[T]he plaintiffs, absent C.R.C.P. 98(f)(2) concerns, are entitled to their choice of venue.â). There is a âstrong presumptionâ in favor of that choice. UIH-SFCC Holdings, L.P. v. Brigato, 51 P.3d 1076, 1078 (Colo. App. 2002).
¶15       The party seeking a change of venue bears the burden of proving the right to a change. Cliff v. Gleason, 142 Colo. 500, 502, 351 P.2d 394, 396 (1960) (citing Fletcher v. Stowell, 17 Colo. 94, 97, 28 P. 326, 327 (1891)). A court may change the place of trial âon good cause shownâ under two circumstances: â(1) When the county designated in the complaint is not the proper county; (2) When the convenience of witnesses and the ends of justice would be promoted by the change.â C.R.C.P. 98(f). A trial courtâs decision on a motion to change venue is reviewed for an abuse of discretion. Sampson, 197 Colo. at 159â60, 590 P.2d at 959. If the trial court grants a motion to change venue despite a defendantâs failure to show that venue should be changed under the standard delineated in Sampson, this court will return the action to the original venue for trial. Tillery, 692 P.2d at 1084.
¶16       To assess whether the trial courts abused their discretion in granting Farmersâ requests for a change of venue, we ask two questions. First, was venue in Boulder County District Court proper? The answer to this question is yes. Second, can a defendant seeking a change of venue under Rule 98(f)(2) based on witness convenience and the ends of justice satisfy its burden by submitting an affidavit that focuses on the proximity of the respective venues to the plaintiff and the plaintiffâs possible witnesses? The answer to this question is no.
A. Rule 98(f)(1)
¶17       We first assess whether Boulder County is a âproper countyâ for these cases for purposes of Rule 98(f)(1) and conclude that it is.4
¶18       Our inquiry begins with the language of Rule 98(c), which presents a series of alternative, and equally appropriate, venues in a tort, contract, or other action. At issue here, subsection (1) provides:
[A]n action shall be tried in the county in which the defendants, or any of them, may reside at the commencement of the action, or in the county where the plaintiff resides when service is made on the defendant in such county; or if the defendant is a nonresident of this state, the [action] may be tried in any county in which the defendant may be found in this state, or in the county designated in the complaint, and if any defendant is about to depart from the state, such action may be tried in any county where plaintiff resides, or where defendant may be found and service had.
C.R.C.P. 98(c)(1) (emphasis added).5
¶19       Here, it is undisputed that Farmers has its principal place of business in California and is not a resident of Colorado. Consequently, pursuant to the highlighted language above, the Hagans, Ewald, and Mayfield were permitted to designate any county in their complaints, including Boulder County. See Denver Air Ctr. v. Dist. Court, 839 P.2d 1182, 1184â85 (Colo. 1992) (âThe language of [Rule 98(c)] has been interpreted to permit trial of an action in the county of plaintiffâs choice where no defendant is a resident of Colorado.â (citing Intâl Serv. Ins. Co. v. Ross, 169 Colo. 451, 462, 457 P.2d 917, 923 (1969))); see also Stephen A. Hess, 5A Colorado Practice: Handbook on Civil Litigation § 1.5 (2014) (âIf no defendant is a resident, the plaintiff may choose any county to name as the place of venue.â).
¶20       However, when the trial court granted Farmersâ motion for a change of venue in Ewaldâs action, it deemed âPlaintiffsâ designated venue of Boulder Countyâ to be âimproper under C.R.C.P. 98(c).â It reached this conclusion after quoting only a portion of Rule 98(c)(1), which omitted the key phrase âor in the county designated in the complaint.â Following suit eight days later, the trial court in the Hagansâ action incorporated the legal analysis in the Ewald order into its own order granting Farmersâ motion for a change of venueânoting that it was âpersuasive authority because the Court agrees with its logic.â
¶21       The trial courts in the Hagan and Ewald lawsuits abused their discretion in holding that Boulder County was not a proper venue. Because Farmers is a nonresident of Colorado, the plaintiffs were permitted to designate any county in their complaints under Rule 98(c)(1). In choosing Boulder, the plaintiffs may well have engaged in âforum shoppingâ and ventured away from where these cases seem to have their roots. But Rule 98(c)(1) does not restrict the plaintiffâs choice of venue when the defendant is a nonresident,6 and potential witnesses need not have a connection to Boulder, despite Farmersâ insistence to the contrary.7
B. Rule 98(f)(2)
¶22       We next assess whether a change of venue would promote âthe convenience of witnesses and the ends of justiceâ as required by C.R.C.P. 98(f)(2)âfocusing on the type of evidence that a movant must present. We conclude that the attorney affidavits that Farmers presented to the district court were insufficient under Sampson and its progeny.
¶23       In Sampson, this court made clear that the party moving to change venue under Rule 98(f)(2) must show, âthrough affidavit or evidence, the identity of the witnesses, the nature, materiality and admissibility of their testimony, and how the witnesses would be better accommodated by the requested change in venue.â 197 Colo. at 160, 590 P.2d at 959; see also Ranger Ins. Co. v. Dist. Court, 647 P.2d 1229, 1231 (Colo. 1982) (reiterating this principle); Depât of Highways, 635 P.2d at 891 (same).
¶24       This standard consolidates the varying requirements imposed in earlier cases, which we cited in Sampson. See, e.g., Enyart v. Orr, 78 Colo. 6, 11, 238 P. 29, 32 (1925) (emphasizing that â[a]ffidavits in support of motions for change of venue should state factsâ); Corson v. Neatheny, 9 Colo. 212, 214â15, 11 P. 82, 84 (1886) (upholding denial of motion to change venue where supporting affidavit contained information that would not have been admissible); Denver & R.G.R. Co. v. Cahill, 8 Colo. App. 158, 163, 45 P. 285, 286 (1896) (labeling as âinsufficientâ an affidavit that âdid not state what any witness would testify to, or that the testimony of any witness would be material to any issue in the caseâ); see also Hills v. La Due, 5 Colo. App. 248, 249, 38 P. 430, 430â31 (1894) (stating that affidavit in support of motion to change venue should contain â[t]he facts to which the witness whose convenience it was desired to subserve would testifyâ and, since no answer had been filed and no defense disclosed, âthe facts constituting the defenseâ).
¶25       Conclusory statements do not satisfy this standard. In Sampson, for example, this court explained that it was not enough for the movant to assert that the designated venue was remote and that witnesses would be inconvenienced. 197 Colo. at 160, 590 P.2d at 959. And in Ranger Insurance Co., this court concluded that the record was too limited to support a change of venue when the movant summarily asserted that another venue would be more convenient for the witnesses and would promote the ends of justice. 647 P.2d at 1231.
¶26       When the movant makes the requisite showing, the party opposing the change âmust at least balance the showing made by the moving partyâ or the court should grant the motion. Depât of Highways, 635 P.2d at 891. Farmers has not made the requisite showing in these cases, as the attorney affidavits that it submitted in support of its motions to change venue do not satisfy the Sampson standard.
¶27       In all three cases, Farmersâ motions relied on affidavits by its attorney. Those affidavits primarily analyze (1) the distance the plaintiffs and their medical treatment providers would have to travel to get to the proposed transferee court, as compared to the original venue, and (2) the approximate travel time to each venue. Because these travel distances and times are generally shorter for the proposed transferee court, Farmers contends that the transferee court is necessarily a more convenient venue under Rule 98(f)(2). We disagree.
¶28       The problem lies not in who provided the affidavits, but in their contents. The deficiency is twofold.
¶29       First and foremost, Farmersâ affidavits focus inordinately on the convenience of the non-moving party. Farmers calculates (and compares) the distance and estimated travel time, without traffic, from the plaintiffsâ homes to the Boulder County and Arapahoe County courthouses (in the Hagan and Ewald actions) and to the Boulder County and El Paso County courthouses (in the Mayfield action).8 But a plaintiffâs convenience is not a defendantâs concern. A defendant may not use a plaintiffâs residential address (or a plaintiffâs professional address) against him or her to attack a venue that is specifically permitted by Rule 98.
¶30       Second, to satisfy the standard set forth in Sampson, the affidavits must contain three categories of pertinent information: (1) âthe identity of the witnessesâ; (2) âthe nature, materiality and admissibility of their testimonyâ; and (3) âhow the witnesses would be better accommodated by the requested change in venue.â See Sampson, 197 Colo. at 160, 590 P.2d at 959. No category is determinative; the trial court must assess the totality of the circumstances to assess whether a change of venue is necessary and appropriate.
¶31       We evaluate each category in turn. We do so against the backdrop of our case law, which provides examples of what types of evidence will (and will not) support a Rule 98(f)(2) motion, as well as guidance on the types of circumstances that may justify a change of venue. Department of Highways, for instance, provides an exemplar of an affidavit that contains the requisite information. There, a motorist who was injured in an accident due to a hole in the pavement on an exit ramp filed a negligence action against the Department of Highways in Denver County. 635 P.2d at 890. The Department filed a motion to change venue to Kit Carson County, which it supported with an affidavit by its assistant maintenance superintendent, who investigated the accident. Id. at 890â91. The affidavit listed the names and addresses of 15 witnesses whom the Department (not the plaintiff) intended to call at trialâsix of whom were employees and all of whom resided in Kit Carson County. Id. at 891. The affidavit contained a brief description of their testimony. Id. It averred the Department operated with very few employees due to budget limitations and it would be impossible to maintain the local roads with these employees attending a trial in Denver, over 150 miles away; thus, the inconvenience was to the Department and not to the plaintiff. Id. We deemed this affidavit sufficient to justify a change of venue. Id. at 890â92.
1. The Identity of the Witnesses
¶32       We begin by evaluating whether Farmersâ attorney affidavits sufficiently set forth âthe identity of the witnesses.â
¶33       Farmers lists the plaintiffsâ own names and addresses, together with the names and addresses of their âtreating medical providersâ and the physicians who performed their independent medical evaluations.9 Farmers extracted this information from the plaintiffsâ demand letters, which it attached to the affidavits. As explained above, the party plaintiffsâ convenience is immaterial. Also, identification of the plaintiffsâ medical treatment providers implicates the third prong, namely how witnesses would be affected.
¶34       The affidavits largely ignore Farmersâ own employees, as well as potential third-party witnesses. Only the affidavit filed in Ewaldâs caseâwhich lists âHeidi Hanson, the most recent claims handler on Plaintiffâs claimââidentifies any of Farmersâ own employee-witnesses by name.10 And only the affidavit in Mayfieldâs case lists a third-party witnessââthe underlying tortfeasor, Mark Merriman.â11
¶35       Furthermore, Farmers lists numerous business names, without specifying a doctor or corporate representative.12 Although the demand letters (which contain some additional identifying information) are also attached in support of the motions, complete information for each witness should be apparent from the face of an affidavit (or other evidence) to facilitate the courtâs evaluation of the motion to change venue.
¶36       Because Farmers focuses almost exclusively on the plaintiffs and their medical treatment providers and omits its own potential witnesses, and because Farmers often provides business names only, its affidavits do not identify the witnesses sufficiently to justify a change of venue under Rule 98(f)(2).
2. The Nature, Materiality, and Admissibility of the Witnessesâ Testimony
¶37       We next consider the second prong of the Sampson standardâwhether Farmersâ attorney affidavits address the nature, materiality, and admissibility of the potential witnessesâ testimony. This requirement ensures that a motion to change venue does not engender a meaningless âbattle of numbers,â in which the parties compete by presenting the reviewing court with long lists of possible witnesses located in their preferred venues.
¶38       This court has applied this requirement (and deemed it fulfilled) in cases such as Department of Highways. See 635 P.2d at 890â92. But we have not yet expanded on what it takes to satisfy this requirement. We do so today, turning to commentary on 28 U.S.C. § 1404 (2014) (the federal counterpart to Rule 98) for guidance.
¶39       The party seeking a change of venue must provide at least âa general summaryâ of what the key witnessesâ testimony will cover. See 15 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3851 (3d ed. 2010). That description should provide the reviewing court with enough information to understand whether the witnesses are important or peripheral. Id. (noting that the description should allow the trial court âto determine what and how important their testimony will beâ). Consider, for example, a case in which one key nonparty witness is located in or near the original venue and another key nonparty witness is located in or near the proposed venue. The description should allow the court to make an informed judgment as to their respective importance. In addition, if the admissibility of a witnessâs testimony is in question (e.g., because it contains hearsay), the affidavit identifying that witness should briefly explain why his or her testimony will likely be admissible.
¶40       We recognize that motions to change venue are generally filed at the beginning stages of litigation, before the parties have engaged in discovery. But this timing should not preclude a movant from providing information at this most basic level.
¶41       Because Farmersâ affidavits do not contain any information at all on the nature, materiality, and admissibility of the potential witnessesâ testimony, they do not meet the second prong of the Sampson standard and do not justify a change of venue under Rule 98(f)(2).13
3. How the Witnesses Would Be Affected
¶42       Last, we assess whether Farmersâ attorney affidavits establish âhow the witnesses would be better accommodated by the requested change in venue.â In other words, how will the change affect the witnesses?
¶43       The affidavits do not establish how any witnesses would be better accommodated by the requested change of venue. Distance and travel time logically factor into convenience, but they are not dispositive. Farmersâ assertion that trial in Boulder County would be inconvenient for witnesses is largely speculative.
¶44       Courts have expressed suspicion when a defendant advocates for the convenience of a plaintiffâs witnesses.14 We share their apprehension. While the convenience of the plaintiffsâ witnesses is relevant in assessing convenience under Rule 98(f)(2), the moving party should point to more than distance: Do the professional witnesses, such as treatment providers, actually object to the travel involved? If so, why?
¶45       The affidavits do not demonstrate that a single witness actually stated that it would be inconvenient for him or her to attend a trial in Boulder County, as compared to the transferee courts. Witness affidavits to this effect would help. See Tillery, 692 P.2d at 1081â83 (affirming that Denver County District Court had discretion to grant motion to change venue to Summit County, when motion was supported by witness affidavits stating that it would be inconvenient for them to appear in Denver); cf. Lopez v. Am. Standard Ins. Co., No. 14CV30476 (Colo. Dist. Ct. Aug. 7, 2014) (Order: Reply in Support of Motion to Change Venue) (considering that three of plaintiffâs witnesses provided an affidavit stating that Weld County would not be more convenient than Boulder County in denying insurance companyâs motion to change venue under Rule 98(f)(2)); see also Jacobs v. Banks Shapiro Gettinger Waldinger & Brennan, LLP, 780 N.Y.S.2d 582, 583 (N.Y. App. Div. 2004) (emphasizing that defendants âdid not even indicate that they had contacted the nonparty witnesses, much less identify the specific inconveniences which might be incurred by the witnesses,â rendering their moving papers insufficient as a matter of law).
¶46       It is also noteworthy that the affidavits do not contain the home addresses for the potential witnesses, except for the plaintiffs themselves. Without requiring that a movant include both work and home addresses for each witness identified, we note the possibility that the witnessesâ homes might be closer to Boulder County, thereby rendering that venue more convenient for those witnesses traveling from home, not the workplace.
¶47       Further, it does not appear that the plaintiffs even intend to call the many witnesses enumerated in the affidavits, or (on the flip side) that Farmersâ witness list is complete. By way of example, Mayfield advises the court that he does not intend to call the majority of the medical treatment providers that Farmers lists in its affidavit. He also notes that the expert witnesses whom he intends to callâwho are not on Farmersâ listâare closer to Boulder County than to El Paso County.
¶48       Finally, distance and travel timeâwhile relevantâconstitute a nebulous benchmark.15 Granted, this court has not hesitated to find inconvenience in cases involving significant travel differentials in the 150-mile to 200-mile range. See Depât of Highways, 635 P.2d at 891â92 (stating that the trial court should have considered the 150-mile distance between Kit Carson County and Denver County in assessing convenience for the witnesses); Bacher, 527 P.2d at 59 (vacating an order denying a motion to change venue, where the counties were remote and material witnesses would have had to travel approximately 200 miles to get to the designated venue). But when two closely situated counties are under scrutiny, no bright line separates convenience from inconvenience. For instance, assuming that the witnesses listed in Farmersâ attorney affidavit in Mayfieldâs case actually will testify, where does a 76.5- to 97.6-mile difference fall on the convenience spectrum?
¶49       The split within the Boulder County District Court illustrates that no universal notion of convenience exists. The trial courts found Boulder County to be inconvenient here, but other judges in the same district have deemed extra travel time within the greater Denver area to be less consequential.
¶50       Because Farmersâ evidence does not establish that the witnesses would be better accommodated by a move to another county, it does not justify a change of venue under Rule 98(f)(2).Â
4. The Ends of Justice
¶51       In addition to the convenience arguments advanced through the attorney affidavits, Farmers asserts that a change of venue would promote âthe ends of justiceâ by (1) ensuring that âa jury of the majority of the vicinage of the witnesses pass upon their credibilityâ; (2) deterring plaintiffs from forum shopping to avoid CAPP districts; and (3) reducing witness costs for which Farmers will be responsible if it loses at trial. We reject these arguments.
¶52       âVicinageâ means âvicinityâ or âproximity.â Blackâs Law Dictionary 1702 (9th ed. 2009). In the context of juries, it is a somewhat anachronistic term referring to âthe locality from which jurors will be drawn.â 4 Wayne R. LaFave et al., Criminal Procedure § 16.1 (3d ed. 2007 & Supp. 2014). In criminal cases, for instance, jurors must generally âbe selected from a geographical district that includes the locality of the commission of the crime,â without extending âtoo far beyond the general vicinity of that locality.â Id. There is no corresponding vicinage requirement in civil cases. Moreover, the venues under consideration here are all metropolitan areas along the Front Range; therefore, any difference in the juryâs composition would likely be minimal.
¶53       Farmersâ CAPP and costs-based arguments are likewise without merit. We decline to impose hurdles on a plaintiffâs choice of venue that do not exist in the plain language of Rule 98 and section 13-16-122, C.R.S. (2014) (âItems includable as costsâ).16
IV. Conclusion
¶54       â[C]onsistent with specific venue provisions, courts should attempt to accommodate the litigants and their witnesses to the greatest extent possible.â Evans v. Dist. Court, 194 Colo. 299, 303, 572 P.2d 811, 814 (1977). Still, courts must do so within established parameters. Thirty-six years ago, in Sampson, this court outlined certain evidentiary requirements for a motion to change venue. The trial courts granted Farmersâ motions to change venue without insisting upon the critical information that Sampson requires. It was an abuse of discretion for the trial courts to order a change of venue without adequate supporting affidavits or an evidentiary hearing. See Sampson, 197 Colo. at 160, 590 P.2d at 960; accord Ranger Ins. Co., 647 P.2d at 1231. Consequently, we now make our rules to show cause absolute.
¶55       We hold that the trial courts abused their discretion when they changed the venue in these cases. First, Boulder County District Court is a proper venue for all three cases; under Rule 98(c)(1), the plaintiffs were allowed to file their complaints in the county of their choice because Farmers is a nonresident defendant. Second, the trial courts granted the motions without the requisite evidentiary support. The affidavits that Farmers submitted improperly focus on convenience to the plaintiffs and do not satisfy the standard set forth in Sampson, 197 Colo. at 160, 590 P.2d at 959. Sampson requires a party seeking to change venue under Rule 98(f)(2) to support the motion with evidence indicating âthe identity of the witnesses, the nature, materiality and admissibility of their testimony, and how the witnesses would be better accommodated by the requested change in venue.â Id.
¶56       We direct the transferee courts to return the cases to Boulder County District
Court.
1 Google Maps is a software application that provides step-by-step driving directions (with street maps) from one location to another, together with the distance and estimated travel time between the two locations. See Google Maps, https://maps.google.com (last visited Jan. 23, 2015).
2 The CAPP Rules apply to certain business actions in district court. Their purpose is to streamline litigation and âto decrease the burden of civil litigation on both litigants and courts, increase access to judicial dispute resolution, and protect the civil trial as a valuable institution.â See Colorado Civil Rules Pilot Project, A History and Overview of the Colorado Civil Access Pilot Project Applicable to Business Actions in District Court, available at http://www.courts.state.co.us/userfiles/file/Court_Probation/Educational_Resources/CAPP%20Overview%20R8%2014%20(FINAL).pdf (last visited Jan. 23, 2015). Under Chief Justice Directive 11-02 (amended July 2014), the CAPP Rules apply to designated cases in the First District (Jefferson and Gilpin Counties), Second District (Denver County), Seventeenth District (Adams County only), and Eighteenth District (Arapahoe County only).
3 The parties each submitted district court orders to support their positions. Although the facts of the cases vary, it is clear that judges within Boulder County District Court have not taken a consistent approach in resolving motions to change venue. Some judges have routinely approved motions to change venue based on affidavits like the ones Farmers submitted here. Other judges have denied motions to change venue under similar circumstances.
4 Because the orders in the Hagan and Ewald actions declare to the contrary, we address this issue even though Farmers concedes this point and does not challenge our precedent allowing a plaintiff to designate any county under Rule 98(c)(1) when a defendant is a nonresident.
5 We cannot ascertain from the record whether additional venues might be appropriate. For instance, Rule 98(c)(2) provides that âan action upon contract may also be tried in the county where the same was to be performed.â C.R.C.P. 98(c)(2). Rule 98(c)(4) provides that â[a]n action upon a contract for services may also be tried in the county in which the services were to be performed.â C.R.C.P. 98(c)(4). And Rule 98(c)(5) provides that â[a]n action for tort may also be tried in the county where the tort was committed.â C.R.C.P. 98(c)(5). We need not analyze these alternative venue provisions today, however, because the parties have not relied upon them.
6 A plaintiffâs ability to designate any county under Rule 98(c)(1) does not, of course, mean that his or her venue choice is unfettered. We made clear in Department of Highways v. District Court, 635 P.2d 889, 891â92 (Colo. 1981), and Bacher v. District Court, 186 Colo. 314, 319, 527 P.2d 56, 59 (1974), that a plaintiffâs venue choice is subject to change under Rule 98(f)(2) when the defendantâs motion to change venue is well supported.
7 Farmers repeatedly points out that the Hagan and Ewald cases have no ties to Boulder, beyond the plaintiffsâ counsel having offices there. Yet, in seeking to avoid Boulder County as a venue, Farmers seems to be engaging in the same type of behavior that it condemns. Farmers itself does not establish a connection between its own venue choices and the parties or the underlying events in the Hagan and Ewald actions. This deficiency may stem in part from the continuing debate over the plaintiffsâ county of residenceâa debate that the plaintiffs did not resolve during briefing to this court. The complaints allege that the Hagans live with Ewald and are residents of Denver County; however, Farmers states in its motions to change venue that the address provided after the signature block in the complaints corresponds to Arapahoe County through various websites. (By contrast, Farmers has shown a connection between Mayfieldâs action and El Paso County. The accident occurred there, Merriman is a resident there, and some of Mayfieldâs medical treatment providers have offices there.)
8 Farmers calculates that the Hagans and Ewald (who live together) would have to travel an additional 31.9 miles, or 37 minutes without traffic, to get to Boulder County than to Arapahoe County. It calculates that Mayfield would have to travel an additional 93.9 miles, or 89 minutes without traffic, to get to Boulder County than to El Paso County.
9 Using their office addresses as the starting point, Farmers calculates that 5 of Haganâs medical treatment providers and 10 of Ewaldâs providers would have to travel an additional 23.6 to 40.4 miles, or 24 to 41 minutes without traffic. It calculates that the doctor who performed an independent medical examination of Hagan and Ewald would have to travel an additional 9.8 miles, or 10 minutes without traffic. In addition, Farmers notes that 10 of Mayfieldâs medical treatment providers are located in El Paso County, with the remaining 3 in Teller County. It calculates that these providers would have to travel an additional 76.5 to 97.6 miles, or 71 to 93 minutes without traffic.
10 Farmers advises in Ewaldâs case that Hansonâs office is in Denver County and that she would have to travel an additional 29.6 miles, or 32 minutes without traffic. The affidavit filed in the Hagansâ case references âthe Farmers claims handlersâ generally, without naming them. Identifying information is similarly absent in the affidavit filed in Mayfieldâs case, which states only that â[n]one of the Farmers personnel who handled Plaintiffâs claim work in Boulder County.â
11 Farmers calculates that Merriman would have to travel an additional 87.9 miles, or 91 minutes without traffic, from his home.
12 In the Hagan action, Farmers lists New Body Chiropractic, Spine One, and Park Meadows Imaging. In the Ewald action, Farmers lists Koop Chiropractic, New Body Chiropractic, Swedish Medical Center, Spine One, Park Meadows Imaging, The Surgery Center at Lone Tree, and Colorado Spine and Orthopedic Rehabilitation Center. And in the Mayfield action, Farmers lists Memorial Hospital Colorado Springs, Pikes Peak Regional Hospital, and Southwest Diagnostic.
13 This deficiency may stem from the fact that the affidavits focus on the plaintiffs and their medical treatment providers. Because they are not Farmersâ own witnesses and may not support Farmersâ theory of defense, Farmers may not be aware of the nature or materiality of their testimony or of potential admissibility issues. Even so, initial disclosures should permit Farmers to provide the trial courts with some guidance regarding what significance it understands the plaintiffsâ witnesses to have. Certainly, Farmers should be able to proffer information about anticipated defense witnesses.
14 See, e.g., Rollinson v. Pergament Acquisition Corp.,643 N.Y.S.2d 91, 91 (N.Y. App. Div. 1996) (noting that the court was âskeptical of any expression of concern by defendant for [the convenience of] plaintiffâs treating physicianâ); McConville v. Makita U.S.A., Inc., 612 N.Y.S.2d 31, 31 (N.Y. App. Div. 1994) (stating that the convenience of the plaintiffâs witnesses âshould be a matter of plaintiffâs, not defendantâs, solicitudeâ).
15 Farmersâ own characterizations reveal the arbitrariness of a numbers-based approach. Farmers alternately labels a 44.9-mile difference in Mayfieldâs case âenormous,â âhuge,â and âgreat,â but then refers to a âmereâ 12- and 29-minute difference.
16 Besides, CAPP would not apply to Mayfieldâs action in either Boulder County or El Paso County. It is clear from his attorneyâs affidavit that Mayfield filed his case in Boulder County District Court to avoid CAPP. But the transferee court, El Paso County Court, is not subject to CAPP either. See supra n.2.
These opinions are not final. They may be modified, changed or withdrawn in accordance with Rules 40 and 49 of the Colorado Appellate Rules. Changes to or modifications of these opinions resulting from any action taken by the Court of Appeals or the Supreme Court are not incorporated here.
Colorado Supreme Court Opinions || January 19, 2015
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[Cite as State ex rel. Butler Twp. Bd. of Trustees v. Montgomery Cty. Bd. of Commrs., 124 Ohio
St.3d 390, 2010-Ohio-169.]
THE STATE EX REL. BUTLER TOWNSHIP BOARD OF TRUSTEES, APPELLANT, v.
MONTGOMERY COUNTY BOARD OF COMMISSIONERS ET AL., APPELLEES.
[Cite as State ex rel. Butler Twp. Bd. of Trustees v. Montgomery Cty. Bd. of
Commrs., 124 Ohio St.3d 390, 2010-Ohio-169.]
A township that files a resolution objection to an annexation petition pursuant to
R.C. 709.023(D) is not a “party” as that term is used in R.C. 709.023(G).
(No. 2009-0186 — Submitted October 20, 2009 — Decided January 28, 2010.)
APPEAL from the Court of Appeals for Montgomery County, No. 22664,
2008-Ohio-6542.
__________________
SYLLABUS OF THE COURT
A township that files a resolution objecting to an annexation petition pursuant to
R.C. 709.023(D) is not a “party” as that term is used in R.C. 709.023(G)
and therefore lacks standing to seek a writ of mandamus to compel the
board of county commissioners to make findings on each of the conditions
set forth in R.C. 709.023(E).
__________________
O’DONNELL, J.
{¶ 1} The Butler Township Board of Trustees appeals from a decision of
the Second District Court of Appeals that affirmed the trial court’s order
dismissing the township’s petition for a writ of mandamus filed pursuant to R.C.
709.023(G).
{¶ 2} The two issues presented in this appeal are whether the township
has standing to seek a writ of mandamus and, if it does, whether the board of
county commissioners had a clear legal duty to incorporate findings on all seven
SUPREME COURT OF OHIO
conditions described in R.C. 709.023(E) into its resolution approving the
annexation.
{¶ 3} After review, we conclude that a township is not a “party” as that
term is used in R.C. 709.023(G) and therefore lacks standing to seek a writ of
mandamus as provided in that section. Accordingly, we do not reach the issue
regarding the obligation of the board of commissioners to make findings pursuant
to R.C. 709.023(E).
Facts and Procedural History
{¶ 4} On October 31, 2007, Waterwheel Farms, Inc., filed a petition with
the Montgomery County Board of Commissioners to annex 78.489 acres of
property it owned in Butler Township to the city of Union, pursuant to R.C.
709.023. Waterwheel, through its agent, gave the required statutory notice of the
filing to Butler Township, the city of Union, and each of the adjacent property
owners.
{¶ 5} On November 13, 2007, the Union City Council adopted
Ordinance 1438, describing the services the city would provide to the proposed
annexed property, and expressly providing that the city would maintain the
portions of Jackson Road when maintenance issues arose from the annexation.
{¶ 6} On November 21, 2007, the Butler Township Board of Trustees
adopted a resolution objecting to the annexation and filed it with the board of
county commissioners. The township objected on two bases: first, it argued that
the property fell within an area covered by a Joint Economic Development
District (“JEDD”) contract existing between the township and the city of Dayton,
and it contended that R.C. 715.79 places a moratorium on annexation within a
JEDD; second, it argued that the annexation would create alternating jurisdictions
along portions of Jackson Road, causing road-maintenance problems, and no
agreement existed for the city to assume maintenance of the road.
2
January Term, 2010
{¶ 7} On December 7, 2007, Waterwheel filed an opposition brief in
which it admitted that the property is within a JEDD, but pointed out that the
three-year moratorium on annexation set forth in R.C. 715.79 applies only when
the JEDD contract is approved by the township electorate, and here no contract
had been submitted to the electorate for a vote. Waterwheel also argued that R.C.
709.023(E)(7) does not require an agreement between a township and a
municipality for road maintenance, but rather requires only that the city agree to
maintain the road as a condition of the annexation; because the Union City
Council had adopted an ordinance assuming maintenance of Jackson Road, it had
satisfied the conditions of the statute as a matter of law.
{¶ 8} On December 11, 2007, the board of commissioners adopted a
resolution approving Waterwheel’s annexation petition. The resolution stated that
six conditions set forth in R.C. 709.023(E) had been met; however, it did not
address the seventh condition – the road-maintenance condition.
{¶ 9} On January 15, 2008, the township filed a complaint against
Waterwheel, the city of Union, and the Montgomery County Board of
Commissioners seeking a writ of mandamus to compel the board of
commissioners to rescind annexation, a judgment declaring the resolution
approving the annexation to be unlawful and void ab initio, and an injunction, if
necessary, to prevent the city from taking any action in furtherance of the
annexation. The city of Union moved to dismiss the complaint, alleging among
other things that the township lacked standing to bring the action.
{¶ 10} The trial court ruled that the township lacked standing to file a
claim in mandamus or for declaratory judgment because it did not fit the
definition of “party” as that term is used in R.C. 709.023. The court therefore
granted the city’s motion to dismiss the complaint and denied the township’s
request for injunctive relief as moot.
3
SUPREME COURT OF OHIO
{¶ 11} On appeal, the Second District Court of Appeals affirmed, holding
that because a township is not a party to an R.C. 709.023 annexation, it lacks
standing to petition for mandamus or seek declaratory relief, rendering moot the
basis upon which to seek injunctive relief.
{¶ 12} The township appealed to this court, and we agreed to hear two
propositions of law: first, whether a township board of trustees that objects to a
proposed annexation pursuant to R.C. 709.023(D) is a “party” as that term is used
in R.C. 709.023(G) and thereby has standing to seek a writ of mandamus against
the board of commissioners; and second, whether a board of county
commissioners reviewing an annexation petition has a clear legal duty to make
findings regarding all seven conditions set forth in R.C. 709.023(E).
{¶ 13} Butler Township contends that R.C. 709.023 recognizes a
township as a party with an interest in an annexation proceeding because that
statute authorizes a township to adopt a resolution supporting or objecting to the
proposed annexation. Thus, it urges the court to hold that a township has standing
to seek a writ of mandamus in cases where a board of county commissioners fails
to follow the law in approving an annexation petition. It further contends that it
should be recognized as a party with standing to seek a writ of mandamus because
Waterwheel and the city of Union agree to the annexation, and thus the appellate
court’s interpretation of the law leaves no party to challenge a board of county
commissioners’ approval of a petition that does not meet statutory requirements.
{¶ 14} Waterwheel, the city of Union, and the Montgomery County Board
of Commissioners argue that R.C. 709.023 does not recognize a township as a
party. They point out that while the legislature authorized a township to file a
resolution objecting to an annexation proceeding, in R.C. 709.021(D), it defined
the term “party” to include a township, but it did not make that definition
applicable to R.C. 709.023.
4
January Term, 2010
{¶ 15} Thus, this case presents the question whether a township is a party
that may seek a writ of mandamus in an R.C. 709.023 special annexation
proceeding. This is a matter of statutory construction.
Statutory Annexation
{¶ 16} Prior to March 27, 2002, all annexations in Ohio initiated by
private-property owners followed one procedure requiring that a majority of the
property owners in a territory to be annexed sign the petition to initiate
annexation. See former R.C. 709.02, Am.H.B. No. 732, 137 Ohio Laws, Part II,
3313. There were no special procedures to expedite the process, and no special
procedures existed to govern situations in which all property owners desired
annexation.
{¶ 17} As of March 27, 2002, the General Assembly’s amendments to
R.C. Chapter 709 and enactments of, inter alia, R.C 709.021, 709.022, 709.023,
and 709.024 allow for expedited annexation procedures when all the property
owners within a territory to be annexed agree to the annexation and sign an
annexation petition. Am.Sub.S.B. No. 5, 149 Ohio Laws, Part I, 621, 625-634.
R.C. 709.021 sets forth general guidelines for the special procedures for
annexation in accordance with R.C. 709.022, 709.023, and 709.024. R.C.
709.022 provides for a special procedure for the annexation of land into a
municipal corporation when all property owners, any township a portion of which
is included within the territory proposed for annexation, and the municipality each
consent to the annexation. R.C. 709.023 provides for a special procedure for the
annexation of land into a municipal corporation when the land is not to be
excluded from the township. And R.C. 709.024 provides a special procedure for
the annexation of land into a municipal corporation for the purpose of undertaking
a significant economic development project.
{¶ 18} Pertinent to the annexation in this case, R.C. 709.023(D) and (E)
provide that the municipality to which annexation is proposed and any township a
5
SUPREME COURT OF OHIO
portion of which is included within the territory proposed for annexation may
adopt and file with the board of county commissioners a resolution consenting or
objecting to the proposed annexation, and if either the municipality or a township
objects to the annexation, the county commissioners must review the annexation
petition to determine whether the conditions specified in R.C. 709.023(E) have
been met. Pursuant to R.C. 709.023(F), if the board of county commissioners
finds that the conditions have been met, it must grant the annexation, but if it
instead finds that one or more of the conditions have not been met, it must so
specify in a resolution denying the petition. R.C. 709.023(G) provides that there
is no appeal in law or equity from the board’s entry of any resolution under R.C.
709.023, but that any party may seek a writ of mandamus to compel the board to
perform its duties.
Analysis
{¶ 19} “Standing” is defined as a “ ‘party’s right to make a legal claim or
seek judicial enforcement of a duty or right.’ ” Ohio Pyro, Inc. v. Ohio Dept. of
Commerce, 115 Ohio St.3d 375, 2007-Ohio-5024, 875 N.E.2d 550, ¶ 27, quoting
Black’s Law Dictionary (8th Ed.2004) 1442. Thus, whether Butler Township has
standing to seek a writ of mandamus in this case depends upon whether the
township is a party to an R.C. 709.023 special annexation proceeding.
{¶ 20} In construing statutes, reviewing courts must ascertain the intent of
the legislature in enacting the statute. See Rosette v. Countrywide Home Loans,
Inc., 105 Ohio St.3d 296, 2005-Ohio-1736, 825 N.E.2d 599, ¶ 12. To determine
intent, a court looks to the language of the statute. Rice v. CertainTeed Corp.
(1999), 84 Ohio St.3d 417, 419, 704 N.E.2d 1217. Here, the General Assembly
expressed its intent regarding whether the township is a party for purposes of R.C.
709.023 by enacting R.C. 709.021(D), wherein it defined the term “party” as “the
municipal corporation to which annexation is proposed, each township any
portion of which is included within the territory proposed for annexation, and the
6
January Term, 2010
agent for the petitioners.” However, subsection (D) expressly provides that this
definition applies to R.C. 709.022 and 709.024, but R.C. 709.023 is not
mentioned.
{¶ 21} “ ‘The canon expressio unius est exclusio alterius tells us that the
express inclusion of one thing implies the exclusion of the other.’ ” Crawford-
Cole v. Lucas Cty. Dept. of Job & Family Servs., 121 Ohio St.3d 560, 2009-Ohio-
1355, 906 N.E.2d 409, ¶ 42, quoting Myers v. Toledo, 110 Ohio St.3d 218, 2006-
Ohio-4353, 852 N.E.2d 1176, ¶ 24. It is well recognized that a court cannot read
words into a statute but must give effect to the words used in the statute. See
generally State ex rel. McDulin v. Indus. Comm. (2000), 89 Ohio St.3d 390, 392,
732 N.E.2d 367; Cleveland Elec. Illum. Co. v. Cleveland (1988), 37 Ohio St.3d
50, 524 N.E.2d 441, paragraph three of the syllabus, citing Columbus-Suburban
Coach Lines v. Pub. Util. Comm. (1969), 20 Ohio St.2d 125, 127, 49 O.O.2d 445,
254 N.E.2d 8.
{¶ 22} The General Assembly could have applied the R.C. 709.021(D)
definition of “party” to R.C. 709.023 if it had intended to do so. It chose
otherwise. Our duty is to construe the statutes as written. In doing so, we
conclude that the General Assembly did not intend the definition of “party” in
R.C. 709.021(D) to apply to R.C. 709.023; hence R.C. 709.021 does not confer
party status on a township in an R.C. 709.023 special annexation proceeding.
Conclusion
{¶ 23} Based on the foregoing, we conclude that a township that files a
resolution objecting to an annexation petition pursuant to R.C. 709.023(D) in an
R.C. 709.023 annexation proceeding is not a “party” as that term is used in R.C.
709.023(G) and therefore lacks standing to seek a writ of mandamus to compel
the board of county commissioners to make findings on each of the conditions set
forth in R.C. 709.023(E). This conclusion renders Butler Township’s second
proposition of law moot.
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SUPREME COURT OF OHIO
{¶ 24} Accordingly, we affirm the decision of the appellate court.
Judgment affirmed.
MOYER, C.J., and PFEIFER, O’CONNOR, and LANZINGER, JJ., concur.
LUNDBERG STRATTON and CUPP, JJ., dissent.
__________________
CUPP, J., dissenting.
{¶ 25} I respectfully dissent because I believe that a township that files a
resolution objecting to an annexation petition pursuant to R.C. 709.023(D) is a
“party” that has standing to request a writ of mandamus to compel the board of
county commissioners to perform its duties pursuant to R.C. 709.023(G). I further
conclude that a board of county commissioners reviewing an annexation under
R.C. 709.023(F) has a clear legal duty to state in its resolution whether all seven
conditions set forth in R.C. 709.023(E) have been met. Accordingly, I would
reverse the court of appeals’ judgment.
{¶ 26} R.C. 709.023 provides an expedited procedure for annexing land
into a municipal corporation. All the property owners within the territory to be
annexed must agree to the annexation and sign the annexation petition. Under
R.C. 709.023(G), there is no appeal from a board of county commissioners’ entry
of a resolution on an annexation petition under that statute, but “any party” may
seek a writ of mandamus to compel the board to perform its duties under R.C.
709.023. The majority concludes that a township is not a party for R.C.
709.023(G) purposes, because the definition of “party” set forth in R.C. 709.021,
which includes townships, is not specifically made applicable to R.C. 709.023
annexation proceedings.
{¶ 27} In my view, the fact that R.C. 709.021(D) does not specify that its
definition of “party” or “parties” applies to R.C. 709.023 is not dispositive of the
question before us. R.C. 709.023 does not define who is a “party” who may bring
a mandamus action under R.C. 709.023(G). However, R.C. 709.023(D) provides
8
January Term, 2010
that a township, a portion of which is included in the territory proposed for
annexation, may adopt and file with the board of county commissioners a
resolution objecting to the proposed annexation on the basis of the proposal’s
failure to meet any of the conditions specified in R.C. 709.023(E). If a township
objects to the annexation, the board of county commissioners must determine
whether the conditions specified in R.C. 709.023(E) have been met. If the board
of county commissioners “finds that each of the conditions specified in division
(E) * * * has been met, [the board of commissioners] shall enter upon its journal a
resolution granting the annexation.” R.C. 709.023(F). If, however, the board of
commissioners finds that “one or more of the conditions specified in division (E)
* * * have not been met, it shall enter upon its journal a resolution that states
which of those conditions the board finds have not been met and that denies the
petition.” R.C. 709.023(F).
{¶ 28} Taken together, the provisions allowing a township to object to a
proposed annexation under R.C. 709.023 and requiring the board of county
commissioners to determine whether the seven conditions specified in R.C.
709.023(E) for such an annexation have been met show that a township, some of
whose territory is to be annexed, is a “party” who may file a mandamus action
under R.C. 709.023(G). As the township and its amici point out, only the
township has an interest in challenging an improperly approved annexation under
R.C. 709.023. Surely R.C. 709.023 does not expressly allow affected townships to
object to an annexation and to require the board of county commissioners to
determine whether all of the statutorily specified conditions for such annexations
have been met, only to exclude townships from filing a mandamus action under
division (G) to challenge an improperly approved annexation. By contrast, R.C.
709.024(G), pertaining to a different type of expedited annexation proceeding,
expressly provides that only “[a]n owner who signed the petition” may appeal
from a denial of the annexation petition, that “[n]o other person has standing to
9
SUPREME COURT OF OHIO
appeal the board’s decision in law or in equity,” and that “[i]f the board grants the
annexation, there shall be no appeal in law or in equity.”
{¶ 29} In my view, a contested annexation petition under R.C. 709.023
can be approved only if the board of county commissioners finds that all of the
seven conditions listed in division (E) of the statute exist. See R.C. 709.023(F). I
would hold that a board of commissioners has a clear legal duty to make a finding
that all of the seven conditions listed in R.C. 709.023(E) have been met in its
resolution approving an annexation.
{¶ 30} After declaring that this issue was moot in light of its
determination that Butler Township lacked standing to file the mandamus action,
the court of appeals opined: “R.C. 709.023(E) and (F) do not require the Board of
County Commissioners to make express findings that analyze how all seven
conditions in R.C. 709.023(E) have been met. The statute only requires the
Commissioners to identify, and not to thoroughly explain and/or discuss, the
conditions that have not been met when a petition has been denied.” State ex rel.
Butler Twp. Bd. of Trustees v. Montgomery Cty. Bd. of Commrs., Montgomery
App. No. 22664, 2008-Ohio-6542, ¶ 35. Thus, the court of appeals did not decide
whether the board of commissioners complied with its clear legal duty to make
findings that sufficiently addressed all of the seven conditions in R.C. 709.023(E)
in granting the annexation. Accordingly, I would reverse the court of appeals’
judgment and remand this matter to that court for a determination whether the
board of county commissioners’ resolution approving the annexation in this case
satisfied the requirement that the board of commissioners find that all of the seven
conditions in R.C. 709.023(E) have been met.
LUNDBERG STRATTON, J., concurs in the foregoing opinion.
__________________
Newhouse, Prophater, Letcher & Moots, L.L.C., and Wanda L. Carter, for
appellant.
10
January Term, 2010
Brahm & Cunningham, L.L.C., Catherine A. Cunningham, and Richard C.
Brahm, for appellee Joseph P. Moore, agent for Waterwheel Farm, Inc.
Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and John
A. Cumming, Assistant Prosecuting Attorney, for appellee Montgomery County
Board of County Commissioners.
Moore & Associates and Joseph P. Moore, for appellee city of Union.
Rinehart & Rishel, Ltd., and Christopher A. Rinehart; and Brown Law,
Ltd., and Stephen D. Brown, urging reversal for amicus curiae Berlin Township
Board of Trustees.
Loveland & Brosius, L.L.C., Donald F. Brosius, and Peter N. Griggs,
urging reversal for amici curiae Ohio Township Association and the Coalition of
Large Ohio Urban Townships.
John E. Gotherman, urging affirmance for amicus curiae Ohio Municipal
League.
______________________
11
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<P><SPAN STYLE="font-size: 14pt"><STRONG><CENTER>TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN</STRONG></SPAN></CENTER>
</P>
<BR WP="BR1"><BR WP="BR2">
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<P><SPAN STYLE="font-family: CG Times Regular"></SPAN><STRONG><CENTER></CENTER>
</STRONG></P>
<P><STRONG><CENTER>ON MOTION FOR REHEARING</CENTER>
</STRONG></P>
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<P><SPAN STYLE="font-family: CG Times Regular"></SPAN><SPAN STYLE="font-family: CG Times Regular"><HR ALIGN="CENTER" WIDTH="26%">
</SPAN></P>
<SPAN STYLE="font-family: CG Times Regular"><STRONG><CENTER>NO. 03-9<A NAME="1">8</A>-00<A NAME="2">476</A>-CR</CENTER>
</STRONG></SPAN>
<P><SPAN STYLE="font-family: CG Times Regular"><STRONG><HR ALIGN="CENTER" WIDTH="26%">
</STRONG></SPAN></P>
<CENTER><A NAME="3">Kenneth Duane Porter</A>, Appellant</CENTER>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><SPAN STYLE="font-family: CG Times Regular"><STRONG><CENTER>v.</CENTER>
</STRONG></SPAN></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><SPAN STYLE="font-family: CG Times Regular"><STRONG><CENTER>The State of Texas, Appellee</CENTER>
</STRONG></SPAN></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
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<P><SPAN STYLE="font-family: CG Times Regular"><STRONG><HR SIZE="3">
</STRONG></SPAN></P>
<SPAN STYLE="font-family: CG Times Regular" STYLE="font-size: 11pt"><STRONG><CENTER>FROM THE DISTRICT COURT OF <A NAME="4">WILLIAMSON</A> COUNTY, <A NAME="5">277TH</A> JUDICIAL DISTRICT</CENTER>
</STRONG></SPAN>
<P><SPAN STYLE="font-family: CG Times Regular" STYLE="font-size: 11pt"><STRONG><CENTER>NO. <A NAME="6">97-172-K277</A>, HONORABLE <A NAME="7">JOHN R. CARTER</A>, JUDGE PRESIDING</STRONG></SPAN><SPAN STYLE="font-family: CG Times Regular"><STRONG></CENTER>
</STRONG></SPAN></P>
<P><SPAN STYLE="font-family: CG Times Regular"><STRONG><HR SIZE="3">
</STRONG></SPAN></P>
<STRONG></STRONG><SPAN STYLE="font-family: CG Times Regular"> We issue the following supplemental opinion in connection with our earlier
overruling of the State's motion for rehearing</SPAN>
<P><SPAN STYLE="font-family: CG Times Regular"> In our opinion of June 17, 1999, we held that the digital data contained within
appellant's computer do not constitute a "reproduction of a film image" unless and until that data
are used to create a visual image, presumably either on the screen of the monitor or in some "hard
copy" form. We therefore reversed Porter's conviction for possession of child pornography.
However, there is an additional hurdle the State has not overcome in the present case.</SPAN></P>
<P><SPAN STYLE="font-family: CG Times Regular"> The relevant statute, since amended, defined "film image" to include "a
photograph, slide, negative, film, or videotape, or a reproduction of any of these." Act of May
27, 1985, 69th Leg., R.S., ch. 530, § 2, 1985 Tex. Gen. Laws 2133, 2134 (Tex. Penal Code
Ann. § 43.26, since amended) (current version at Tex. Penal Code Ann. § 43.26 (West Supp.
1999)). It is common knowledge, however, that modern digital cameras do not use any kind of
film, but record real-life images directly in digital form. If the images at issue here were stored
directly in this digital form, there would never have been a "film image," as defined by the
statute, for there to be a "reproduction" of. The present record contains no evidence whatsoever
of how the digital data found in appellant's computer was originally produced. Accordingly, the
State failed to prove that the materials possessed by appellant contained a film image, as required
by the statute at the time of the charged offense.</SPAN></P>
<P><SPAN STYLE="font-family: CG Times Regular"> The upshot of this case may be to demonstrate that the legislature had a very good
reason for the 1997 amendments to section 43.26 of the Penal Code.</SPAN></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><SPAN STYLE="font-family: CG Times Regular"> <SPAN STYLE="text-decoration: underline"> </SPAN></SPAN></P>
<P><SPAN STYLE="font-family: CG Times Regular"> Bea Ann Smith, Justice</SPAN></P>
<P><SPAN STYLE="font-family: CG Times Regular">Before Justices Jones, B. A. Smith, and Yeakel</SPAN></P>
<P><SPAN STYLE="font-family: CG Times Regular">Filed: August 26, 1999</SPAN></P>
<P><SPAN STYLE="font-family: CG Times Regular">Publish</SPAN></P>
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<P><SPAN STYLE="font-size: 14pt"><STRONG><CENTER>TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN</STRONG></SPAN></CENTER>
</P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER></CENTER>
</STRONG></P>
<P><STRONG><CENTER>NO. 03-95-00762-CR</CENTER>
</STRONG></P>
<P><STRONG><CENTER></CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER>Barry Dockery, Appellant</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER>v.</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER>The State of Texas, Appellee</CENTER>
</STRONG></P>
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</STRONG></P>
<P><SPAN STYLE="font-family: CG Times" STYLE="font-size: 11pt"><STRONG><CENTER>FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT</CENTER>
</STRONG></SPAN></P>
<P><SPAN STYLE="font-family: CG Times" STYLE="font-size: 11pt"><STRONG><CENTER>NO. 0946153, HONORABLE JON N. WISSER, JUDGE PRESIDING</STRONG></SPAN><SPAN STYLE="font-family: CG Times"><STRONG></CENTER>
</STRONG></SPAN></P>
<P><SPAN STYLE="font-family: CG Times"><STRONG><CENTER></CENTER>
</STRONG></SPAN></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><SPAN STYLE="font-family: CG Times"><STRONG>PER CURIAM</STRONG></SPAN></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><SPAN STYLE="font-family: CG Times"> This is an appeal from an order revoking probation. Sentence was imposed in open
court on November 3, 1995. No motion for new trial was filed. Appellant's pro se notice of
appeal was untimely filed on December 7, 1995. Tex. R. App. P. 41(b)(1). Appellant's pro se
motion for extension of time for filing notice of appeal, also untimely, was filed on January 22,
1996. Tex. R. App. P. 41(b)(2). </SPAN></P>
<P><SPAN STYLE="font-family: CG Times"> The appellate time limits are not discretionary and may not be suspended. <EM>Garza
v. State</EM>, 896 S.W.2d 192 (Tex. Crim. App. 1995). Because it was not timely filed, appellant's
motion for extension of time to file notice of appeal is overruled. Without a timely filed notice
of appeal, this Court is without jurisdiction. <EM>Rodarte v. State</EM>, 860 S.W.2d 108 (Tex. Crim. App.
1993); <EM>Shute v. State</EM>, 744 S.W.2d 96 (Tex. Crim. App. 1988).</SPAN></P>
<P><SPAN STYLE="font-family: CG Times"> The appeal is dismissed.</SPAN></P>
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<P><SPAN STYLE="font-family: CG Times">Before Chief Justice Carroll, Justices Aboussie and Kidd</SPAN></P>
<P><SPAN STYLE="font-family: CG Times">Dismissed for Want of Jurisdiction</SPAN></P>
<P><SPAN STYLE="font-family: CG Times">Filed: February 14, 1996</SPAN></P>
<P><SPAN STYLE="font-family: CG Times">Do Not Publish</SPAN></P>
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<BODY TEXT="#000000" LINK="#0000ff" VLINK="#551a8b" ALINK="#ff0000" BGCOLOR="#c0c0c0">
<P><SPAN STYLE="font-size: 14pt"><STRONG><CENTER>TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN</STRONG></SPAN></CENTER>
</P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER></CENTER>
</STRONG></P>
<P><STRONG><CENTER>NO. 03-96-00214-CR</CENTER>
</STRONG></P>
<P><STRONG><CENTER></CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER>Rhonda Burns, Appellant</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER>v.</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER>The State of Texas, Appellee</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER></CENTER>
</STRONG></P>
<P><SPAN STYLE="font-family: CG Times" STYLE="font-size: 11pt"><STRONG><CENTER>FROM THE COUNTY COURT AT LAW NO. 6 OF TRAVIS COUNTY</CENTER>
</STRONG></SPAN></P>
<P><SPAN STYLE="font-family: CG Times" STYLE="font-size: 11pt"><STRONG><CENTER>NO. 434083, HONORABLE DAVID PURYEAR, JUDGE PRESIDING</STRONG></SPAN><SPAN STYLE="font-family: CG Times"><STRONG></CENTER>
</STRONG></SPAN></P>
<P><SPAN STYLE="font-family: CG Times"><STRONG><CENTER></CENTER>
</STRONG></SPAN></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><SPAN STYLE="font-family: CG Times"><STRONG>PER CURIAM</STRONG></SPAN></P>
<BR WP="BR1"><BR WP="BR2">
<P><SPAN STYLE="font-family: CG Times"> A jury found appellant guilty of driving while intoxicated. <EM>See</EM> Tex. Penal Code
Ann. § 49.04(a) (West Supp. 1996). The county court at law assessed punishment at incarceration
for 180 days and a $2000 fine, but suspended imposition of sentence and placed appellant on
community supervision.</SPAN></P>
<P><SPAN STYLE="font-family: CG Times"> Appellant represents herself on appeal. In response to the Clerk's notice that the
statement of facts was overdue, appellant wrote a letter which, upon examination, was filed as a
narrative statement of facts and brief. <EM>See</EM> Tex. R. App. P. 53(i). In this letter, appellant
describes the events leading up to and following her arrest. Appellant complains that her car and
personal items were unlawfully searched, but does not state that these searches produced any
evidence used against her at trial. She states that she was "harassed" to give a statement but she
refused. She also states that several violations of law were committed at her trial, but does not
specify what they were. Appellant provides no argument or authorities.</SPAN></P>
<P><SPAN STYLE="font-family: CG Times"> No reversible error is presented. The judgment of conviction is affirmed.</SPAN></P>
<BR WP="BR1"><BR WP="BR2">
<P><SPAN STYLE="font-family: CG Times">Before Chief Justice Carroll, Justices Aboussie and Kidd</SPAN></P>
<P><SPAN STYLE="font-family: CG Times">Affirmed</SPAN></P>
<P><SPAN STYLE="font-family: CG Times">Filed: August 28, 1996</SPAN></P>
<P><SPAN STYLE="font-family: CG Times">Do Not Publish</SPAN></P>
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<BODY TEXT="#000000" LINK="#0000ff" VLINK="#551a8b" ALINK="#ff0000" BGCOLOR="#c0c0c0">
<P><SPAN STYLE="font-size: 14pt"><STRONG><CENTER>TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN</STRONG></SPAN></CENTER>
</P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER></CENTER>
</STRONG></P>
<P><STRONG><CENTER>NO. 03-96-00238-CR</CENTER>
</STRONG></P>
<P><STRONG><CENTER></CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER>Ex Parte: William Dale Percefull, Appellant</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER></CENTER>
</STRONG></P>
<P><SPAN STYLE="font-family: CG Times" STYLE="font-size: 11pt"><STRONG><CENTER>FROM THE COUNTY COURT AT LAW NO. 1 OF HAYS COUNTY</CENTER>
</STRONG></SPAN></P>
<P><SPAN STYLE="font-family: CG Times" STYLE="font-size: 11pt"><STRONG><CENTER>NO. 43,413, HONORABLE HOWARD S. WARNER II, JUDGE PRESIDING</STRONG></SPAN><SPAN STYLE="font-family: CG Times"><STRONG></CENTER>
</STRONG></SPAN></P>
<P><SPAN STYLE="font-family: CG Times"><STRONG><CENTER></CENTER>
</STRONG></SPAN></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><SPAN STYLE="font-family: CG Times"><STRONG>PER CURIAM</STRONG></SPAN></P>
<BR WP="BR1"><BR WP="BR2">
<P><SPAN STYLE="font-family: CG Times"> William Percefull appeals from the county court at law's denial of habeas corpus relief.
Tex. R. App. P. 44. In a single point of error, appellant contends the court erred by holding that an
administrative driver's license suspension did not serve as a double jeopardy bar to his prosecution for
driving while intoxicated.</SPAN></P>
<P><SPAN STYLE="font-family: CG Times"> The pending information accuses appellant of driving while intoxicated on March 17, 1995.
Following his arrest on that date, appellant refused the request that he submit to a breath test for alcohol
concentration. As a consequence, appellant's driver's license was suspended for ninety days. Act of May
29, 1993, 73d Leg., R.S., ch. 886, § 9, 1993 Tex. Gen. Laws 3515, 3523 (Tex. Rev. Civ. Stat. Ann. art.
6701<EM>l</EM>-5, since amended and codified at Tex. Transp. Code Ann. ch. 724 (West 1996)). Invoking recent
opinions by the United States Supreme Court, appellant contends that the suspension of his driver's license
constituted punishment for driving while intoxicated and bars further prosecution under the Double
Jeopardy Clause. <EM>See Montana Dep't of Revenue v. Kurth Ranch</EM>, 511 U.S. ___, 128 L. Ed. 2d 767
(1994); <EM>Austin v. United States</EM>, 509 U.S. ___, 125 L. Ed. 2d 488 (1993); <EM>United States v. Halper</EM>,
490 U.S. 435, 440 (1989); U. S. Const. amend. V.</SPAN></P>
<P><SPAN STYLE="font-family: CG Times"> We recently reviewed the cited Supreme Court opinions and concluded that the
administrative suspension of a driver's license did not constitute punishment within the meaning of the
Double Jeopardy Clause and therefore did not bar prosecution for the same driving while intoxicated
offense. <EM>Ex parte Arnold</EM>, 916 S.W.2d 640 (Tex. App.--Austin 1996, pet. filed). We found a clear
distinction between government attempts to forfeit property or raise revenue and those cases in which the
State attempts to suspend a driver's license. <EM>Id</EM>. at 642. The holder of a driver's license possesses a
privilege rather than an interest in property and its suspension serves the remedial purpose of protecting
public safety. <EM>Id</EM>. at 643; <EM>and see United States v. Ursery</EM>, ___ U.S. ___, 135 L. Ed. 2d 549, 571
(1996) (civil forfeitures neither punishment nor criminal for purpose of double jeopardy analysis). </SPAN></P>
<P><SPAN STYLE="font-family: CG Times"> For the reasons stated in <EM>Arnold</EM>, the administrative suspension of appellant's driver's
license does not bar his prosecution for driving while intoxicated under the Double Jeopardy Clause. We
overrule the point of error and affirm the order denying habeas corpus relief.</SPAN></P>
<BR WP="BR1"><BR WP="BR2">
<P><SPAN STYLE="font-family: CG Times">Before Justices Powers, Aboussie and Jones</SPAN></P>
<P><SPAN STYLE="font-family: CG Times">Affirmed</SPAN></P>
<P><SPAN STYLE="font-family: CG Times">Filed: October 16, 1996</SPAN></P>
<P><SPAN STYLE="font-family: CG Times">Do Not Publish </SPAN></P>
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<META NAME="Generator" CONTENT="WordPerfect 9">
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<BODY TEXT="#000000" LINK="#0000ff" VLINK="#551a8b" ALINK="#ff0000" BGCOLOR="#c0c0c0">
<P><SPAN STYLE="font-size: 14pt"><STRONG><CENTER>TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN</STRONG></SPAN></CENTER>
</P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER></CENTER>
</STRONG></P>
<P><STRONG><CENTER>NO. 03-96-00100-CR</CENTER>
</STRONG></P>
<P><STRONG><CENTER></CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER>David Vargas, Appellant</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER>v.</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER>The State of Texas, Appellee</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER></CENTER>
</STRONG></P>
<P><SPAN STYLE="font-family: CG Times" STYLE="font-size: 11pt"><STRONG><CENTER>FROM THE DISTRICT COURT OF CALDWELL COUNTY, 22ND JUDICIAL DISTRICT</CENTER>
</STRONG></SPAN></P>
<P><SPAN STYLE="font-family: CG Times" STYLE="font-size: 11pt"><STRONG><CENTER>NO. 95-098, HONORABLE JACK ROBISON, JUDGE PRESIDING</STRONG></SPAN><SPAN STYLE="font-family: CG Times"><STRONG></CENTER>
</STRONG></SPAN></P>
<P><SPAN STYLE="font-family: CG Times"><STRONG><CENTER></CENTER>
</STRONG></SPAN></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><SPAN STYLE="font-family: CG Times"><STRONG>PER CURIAM</STRONG></SPAN></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><SPAN STYLE="font-family: CG Times"> This is an appeal from the judgment of conviction for delivery of a controlled
substance, namely: cocaine. Appellant has filed a motion to withdraw the appeal. No decision
of this Court has been delivered. The motion is granted and the appeal is dismissed. <EM>See</EM> Tex.
R. App. P. 59(b).</SPAN></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><SPAN STYLE="font-family: CG Times">Before Justices Powers, Jones and B. A. Smith</SPAN></P>
<BR WP="BR1"><BR WP="BR2">
<P><SPAN STYLE="font-family: CG Times">Appeal Dismissed on Appellant's Motion</SPAN></P>
<BR WP="BR1"><BR WP="BR2">
<P><SPAN STYLE="font-family: CG Times">Filed: May 8, 1996</SPAN></P>
<BR WP="BR1"><BR WP="BR2">
<P><SPAN STYLE="font-family: CG Times">Do Not Publish</SPAN></P>
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<P><SPAN STYLE="font-size: 14pt"><STRONG><CENTER>TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN</STRONG></SPAN></CENTER>
</P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><HR ALIGN="CENTER" WIDTH="26%">
</P>
<STRONG><CENTER>NO. 03-9<A NAME="1">7</A>-00<A NAME="2">472</A>-CV</CENTER>
</STRONG>
<P><HR ALIGN="CENTER" WIDTH="26%">
</P>
<STRONG></STRONG><CENTER><A NAME="3">Martin L. Estrada</A>, Appellant</CENTER>
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER>v.</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER><A NAME="4">Gloria R. Estrada</A>, Appellee</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><HR SIZE="3">
</STRONG></P>
<SPAN STYLE="font-size: 11pt"><STRONG><CENTER>FROM THE DISTRICT COURT OF <A NAME="5">BEXAR</A> COUNTY, <A NAME="6">288TH</A> JUDICIAL DISTRICT</CENTER>
</STRONG></SPAN>
<P><SPAN STYLE="font-size: 11pt"><STRONG><CENTER>NO. <A NAME="7">96-CI-144</A>28, HONORABLE <A NAME="8">HENRY SCHUBLE</A>, JUDGE PRESIDING </STRONG></SPAN><STRONG></CENTER>
</STRONG></P>
<P><STRONG><HR SIZE="3">
</STRONG></P>
<STRONG>PER CURIAM</STRONG>
<BR WP="BR1"><BR WP="BR2">
<P> Appellant Martin L. Estrada seeks to challenge a trial-court judgment rendered on
March 18, 1997. He filed a notice of appeal on April 17, 1997. The cause was transferred to this
Court from the Fourth District Court of Appeals on July 30, 1997.</P>
<P> On August 14, 1997, the Clerk of this Court informed Estrada that he was not a
party who could perfect an appeal by filing a notice of appeal.<A HREF="#N_1_"><SUP> (1)</SUP></A> <EM>See</EM> former Tex. R. App. P.
40(a)(1). The Clerk invited Estrada to file a cost bond or substitute with the trial court and to
forward the document to this Court by August 29, 1997. <EM>See</EM> <EM>Linwood v. NCNB Tex</EM>., 885
S.W.2d 102 (Tex. 1994). The Clerk cautioned Estrada that the Court could dismiss the appeal
on its own motion if he did not properly perfect the appeal.</P>
<P> To date, Estrada has not replied. The cause is dismissed for want of jurisdiction.
Former Tex. R. App. P. 54(c), 60(a)(2); <EM>Davies v. Massey</EM>, 561 S.W.2d 799, 801 (Tex. 1978).</P>
<BR WP="BR1"><BR WP="BR2">
<P>Before Chief Justice Carroll, Justices Jones and Kidd</P>
<P>Dismissed for Want of Jurisdiction</P>
<P>Filed: December 11, 1997</P>
<P>Do Not Publish</P>
<P><A NAME="N_1_">1. </A> Under the rules of appellate procedure in effect before September 1, 1997, an individual must
have generally filed a cost bond or substitute to perfect an appeal. Because judgment was rendered
and the deadline to perfect occurred before the effective date of the new rules, the former rules apply.
All citations are to the former rules of appellate procedure.
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<P><SPAN STYLE="font-size: 14pt"><STRONG><CENTER>TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN</STRONG></SPAN></CENTER>
</P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER></CENTER>
</STRONG></P>
<P><STRONG><CENTER>NO. 03-95-00691-CR</CENTER>
</STRONG></P>
<P><STRONG><CENTER></CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER>Ronald Hobbs, Appellant</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER>v.</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER>The State of Texas, Appellee</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER></CENTER>
</STRONG></P>
<P><SPAN STYLE="font-family: CG Times" STYLE="font-size: 11pt"><STRONG><CENTER>FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT</CENTER>
</STRONG></SPAN></P>
<P><SPAN STYLE="font-family: CG Times" STYLE="font-size: 11pt"><STRONG><CENTER>NO. 88,436, HONORABLE TOM BLACKWELL, JUDGE PRESIDING</STRONG></SPAN><SPAN STYLE="font-family: CG Times"><STRONG></CENTER>
</STRONG></SPAN></P>
<P><SPAN STYLE="font-family: CG Times"><STRONG><CENTER></CENTER>
</STRONG></SPAN></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><SPAN STYLE="font-family: CG Times"><STRONG>PER CURIAM</STRONG></SPAN></P>
<BR WP="BR1"><BR WP="BR2">
<P><SPAN STYLE="font-family: CG Times"> This is an appeal from an order revoking probation. Appellant has filed a motion
to dismiss the appeal. The motion is granted and the appeal is dismissed. Tex. R. App. P. 59(b).</SPAN></P>
<BR WP="BR1"><BR WP="BR2">
<P><SPAN STYLE="font-family: CG Times">Before Chief Justice Carroll, Justices Jones and B. A. Smith</SPAN></P>
<P><SPAN STYLE="font-family: CG Times">Dismissed on Appellant's Motion</SPAN></P>
<P><SPAN STYLE="font-family: CG Times">Filed: December 20, 1995</SPAN></P>
<P><SPAN STYLE="font-family: CG Times">Do Not Publish</SPAN></P>
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<P><SPAN STYLE="font-size: 14pt"><STRONG><CENTER>TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN</STRONG></SPAN></CENTER>
</P>
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER></CENTER>
</STRONG></P>
<P><STRONG><CENTER>NO. 03-95-00715-CV</CENTER>
</STRONG></P>
<P><STRONG><CENTER></CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER>Collen A. Clark, Appellant</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER>v.</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER>Board of Law Examiners of the State of Texas, Appellee</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER></CENTER>
</STRONG></P>
<P><SPAN STYLE="font-family: CG Times" STYLE="font-size: 11pt"><STRONG><CENTER>FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT</CENTER>
</STRONG></SPAN></P>
<P><SPAN STYLE="font-family: CG Times" STYLE="font-size: 11pt"><STRONG><CENTER>NO. 95-03629, HONORABLE MARY PEARL WILLIAMS, JUDGE PRESIDING</STRONG></CENTER>
</SPAN></P>
<BR WP="BR1"><BR WP="BR2">
<P><SPAN STYLE="font-family: CG Times"><STRONG></STRONG></SPAN><SPAN STYLE="font-family: CG Times"><STRONG><CENTER></CENTER>
</STRONG></SPAN></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><SPAN STYLE="font-family: CG Times"><STRONG>PER CURIAM</STRONG></SPAN></P>
<BR WP="BR1"><BR WP="BR2">
<P><SPAN STYLE="font-family: CG Times"> The parties have filed a joint motion to withdraw opinion and remand. The motion is
granted. Tex. R. App. P. 59(a).</SPAN></P>
<P><SPAN STYLE="font-family: CG Times"> We withdraw this Court's prior opinion and judgment issued July 31, 1996, and set aside
the trial court's judgment and remand the cause to the Board of Law Examiners of the State of Texas for
action consistent with the settlement terms agreed to by the parties. </SPAN></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><SPAN STYLE="font-family: CG Times">Before Chief Justice Carroll, Justices Aboussie and Kidd</SPAN></P>
<P><SPAN STYLE="font-family: CG Times">Judgment Set Aside and Cause Remanded on Joint Motion</SPAN></P>
<P><SPAN STYLE="font-family: CG Times">Filed: February 13, 1997</SPAN></P>
<P><SPAN STYLE="font-family: CG Times">Do Not Publish</SPAN></P>
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<P><SPAN STYLE="font-size: 14pt"><STRONG><CENTER>TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN</STRONG></SPAN></CENTER>
</P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><HR ALIGN="CENTER" WIDTH="26%">
</P>
<STRONG><CENTER>NO. 03-9<A NAME="1">9</A>-00<A NAME="2">284</A>-CV</CENTER>
</STRONG>
<P><HR ALIGN="CENTER" WIDTH="26%">
</P>
<STRONG></STRONG><CENTER><A NAME="3">Bobby E. Haley</A>, Appellant</CENTER>
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER>v.</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER><A NAME="4">Associates Commercial Corporation</A>, Appellee</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><HR SIZE="3">
</STRONG></P>
<SPAN STYLE="font-size: 11pt"><STRONG><CENTER>FROM THE DISTRICT COURT OF <A NAME="5">BELL</A> COUNTY, <A NAME="6">169TH</A> JUDICIAL DISTRICT</CENTER>
</STRONG></SPAN>
<P><SPAN STYLE="font-size: 11pt"><STRONG><CENTER>NO. <A NAME="7">172,363-C</A>, HONORABLE <A NAME="8">SUE BARTON LYKES</A>, JUDGE PRESIDING</STRONG></SPAN><STRONG></CENTER>
</STRONG></P>
<P><STRONG><HR SIZE="3">
</STRONG></P>
PER CURIAM
<BR WP="BR1"><BR WP="BR2">
<P> Because there is no final judgment from the trial court in this matter, we will
dismiss the appeal for want of jurisdiction. <EM>See</EM> Tex. R. App. P. 42.3(a).</P>
<P> Appellant submitted his Notice of Appeal to the trial court on May 7, 1999. By
letter dated July 9, 1999, this Court notified all parties that it did not appear that a final judgment
existed in this matter, and that appellant was requested to obtain a final judgment from the trial
court and submit same to this office by August 19, 1999. Thus far, appellant has failed to
respond.</P>
<P> On September 17, 1999, the district clerk's office of Bell County informed the
Clerk's Office of this Court that the case had been abated on March 19, 1999, and that the
abatement remains in effect.</P>
<P> Accordingly, we dismiss this appeal for want of jurisdiction on our own motion.</P>
<BR WP="BR1"><BR WP="BR2">
<P>Before Justices Jones, Kidd and Patterson</P>
<P>Dismissed for Want of Jurisdiction</P>
<P>Filed: September 23, 1999</P>
<P>Do Not Publish</P>
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</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><HR ALIGN="CENTER" WIDTH="26%">
</STRONG></P>
<CENTER>NO. 03-9<A NAME="1">7</A>-00<A NAME="2">692</A>-CR</CENTER>
<P><STRONG><HR ALIGN="CENTER" WIDTH="26%">
</STRONG></P>
<CENTER><A NAME="3">Glenn Morris Toerner, Jr.</A>, Appellant</CENTER>
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER>v.</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER>The State of Texas, Appellee</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><HR SIZE="3">
</STRONG></P>
<SPAN STYLE="font-size: 11pt"><STRONG><CENTER>FROM THE DISTRICT COURT OF <A NAME="4">JEFFERSON</A> COUNTY, <A NAME="5">252ND</A> JUDICIAL DISTRICT</CENTER>
</STRONG></SPAN>
<P><SPAN STYLE="font-size: 11pt"><STRONG><CENTER>NO. <A NAME="6">70566</A>, HONORABLE <A NAME="7">LEONARD GIBLIN</A>, JUDGE PRESIDING</STRONG></SPAN><STRONG></CENTER>
</STRONG></P>
<P><STRONG><HR SIZE="3">
</STRONG></P>
PER CURIAM
<P>Appellant's motion to dismiss this appeal is granted. <EM>See</EM> Tex. R. App. P. 42.2(a). The
appeal is dismissed.</P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P>Before Chief Justice Yeakel, Justices Aboussie and Jones</P>
<P>Dismissed on Appellant's Motion</P>
<P>Filed: May 29, 1998</P>
<P>Do Not Publish</P>
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<P><SPAN STYLE="font-size: 14pt"><STRONG><CENTER>TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN</STRONG></SPAN></CENTER>
</P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><HR ALIGN="CENTER" WIDTH="26%">
</P>
<STRONG><CENTER>NO. 03-9<A NAME="1">9</A>-00<A NAME="2">333</A>-CV</CENTER>
</STRONG>
<P><HR ALIGN="CENTER" WIDTH="26%">
</P>
<STRONG></STRONG><CENTER><A NAME="3">Texas Association of Counties, a Self-Insured Governmental Entity</A>, Appellant</CENTER>
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER>v.</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER><A NAME="4">Caron L. Urban</A>, Appellee</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><HR SIZE="3">
</STRONG></P>
<SPAN STYLE="font-size: 11pt"><STRONG><CENTER>FROM THE DISTRICT COURT OF <A NAME="5">COMAL</A> COUNTY, <A NAME="6">207TH</A> JUDICIAL DISTRICT</CENTER>
</STRONG></SPAN>
<P><SPAN STYLE="font-size: 11pt"><STRONG><CENTER>NO. <A NAME="7">C99-0244A</A>, HONORABLE <A NAME="8">JACK ROBISON</A>, JUDGE PRESIDING</STRONG></SPAN><STRONG></CENTER>
</STRONG></P>
<P><STRONG><HR SIZE="3">
</STRONG></P>
PER CURIAM
<BR WP="BR1"><BR WP="BR2">
<P> Appellant Texas Association of Counties, a Self-Insured Governmental Entity, has
filed an Unopposed Motion to Dismiss Appeal. We grant appellant's motion and dismiss the
appeal. <EM>See</EM> Tex. R. App. P. 42.1(a)(2).</P>
<BR WP="BR1"><BR WP="BR2">
<P>Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel</P>
<P>Dismissed on Appellant's Motion</P>
<P>Filed: September 23, 1999</P>
<P>Do Not Publish</P>
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<P><SPAN STYLE="font-size: 14pt"><STRONG><CENTER>TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN</STRONG></SPAN></CENTER>
</P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><HR ALIGN="CENTER" WIDTH="26%">
</P>
<STRONG><CENTER>NO. 03-9<A NAME="1">7</A>-00<A NAME="2">327</A>-CV</CENTER>
</STRONG>
<P><HR ALIGN="CENTER" WIDTH="26%">
</P>
<STRONG></STRONG><CENTER><A NAME="3">Madera Production Company</A>, Appellant</CENTER>
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER>v.</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER><A NAME="4">Scott Storm</A>, Appellee</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><HR SIZE="3">
</STRONG></P>
<SPAN STYLE="font-size: 11pt"><STRONG><CENTER>FROM THE DISTRICT COURT OF <A NAME="5">TRAVIS</A> COUNTY, <A NAME="6">200TH</A> JUDICIAL DISTRICT</CENTER>
</STRONG></SPAN>
<P><SPAN STYLE="font-size: 11pt"><STRONG><CENTER>NO. <A NAME="7">97-00649</A>, HONORABLE <A NAME="8">DON B. MORGAN</A>, JUDGE PRESIDING </STRONG></SPAN><STRONG></CENTER>
</STRONG></P>
<P><STRONG><HR SIZE="3">
</STRONG></P>
<STRONG>PER CURIAM</STRONG>
<BR WP="BR1"><BR WP="BR2">
<P> This Court issued an injunction to protect its jurisdiction by enjoining a foreclosure.
<EM>Madera Production Company v. Scott Storm and Scott Moore, Substitute Trustee,</EM> No. 03-97-296-CV (Tex. App.--Austin June 2, 1997) (not designated for publication). We received the transcript from
Madera's interlocutory appeal from the order denying temporary injunction on June 12, 1997, and
docketed it as our cause number 03-07-327-CV. The parties have informed the Court that they have
settled and move to dismiss the cause and vacate the trial-court judgment pursuant to their signed
"Agreement of Settlement and Compromise." All parties have agreed to bear their own costs, in this Court
and the trial court. As between the parties, Madera Production Company shall be entitled to any refunds
of its cost and supersedeas bonds.</P>
<P> Accordingly, we grant the parties' motion, vacate the trial court judgment, and dismiss the
cause. We will issue our mandate contemporaneously with our opinion and judgment.</P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P>Before Chief Justice Carroll, Justices Aboussie and B. A. Smith</P>
<BR WP="BR1"><BR WP="BR2">
<P>Judgment Vacated and Cause Dismissed on Joint Motion</P>
<BR WP="BR1"><BR WP="BR2">
<P>Filed: July 14, 1997</P>
<BR WP="BR1"><BR WP="BR2">
<P>Do Not Publish</P>
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<P><SPAN STYLE="font-size: 14pt"><STRONG><CENTER>TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN</STRONG></SPAN></CENTER>
</P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER></CENTER>
</STRONG></P>
<P><STRONG><CENTER>NO. 03-96-00587-CV</CENTER>
</STRONG></P>
<P><STRONG><CENTER></CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER>Victoria Parsons, in Her Individual and Representative Capacities,</CENTER>
</STRONG></P>
<P><STRONG><CENTER>and Rosanne Bonnet, Appellants</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER>v.</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER>Andrea Brantley, Appellee</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER></CENTER>
</STRONG></P>
<P><SPAN STYLE="font-family: CG Times" STYLE="font-size: 11pt"><STRONG><CENTER>FROM THE COUNTY COURT AT LAW OF BASTROP COUNTY</CENTER>
</STRONG></SPAN></P>
<P><SPAN STYLE="font-family: CG Times" STYLE="font-size: 11pt"><STRONG><CENTER>NO. 7464, HONORABLE BENTON ESKEW, JUDGE PRESIDING</STRONG></SPAN><SPAN STYLE="font-family: CG Times"><STRONG></CENTER>
</STRONG></SPAN></P>
<P><SPAN STYLE="font-family: CG Times"><STRONG><CENTER></CENTER>
</STRONG></SPAN></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><SPAN STYLE="font-family: CG Times"><STRONG>PER CURIAM</STRONG></SPAN></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><SPAN STYLE="font-family: CG Times"> The parties have filed an agreed motion to dismiss this appeal. The motion is granted. Tex.
R. App. P. 59(a)(1)(A).</SPAN></P>
<P><SPAN STYLE="font-family: CG Times"> The appeal is dismissed.</SPAN></P>
<BR WP="BR1"><BR WP="BR2">
<P><SPAN STYLE="font-family: CG Times">Before Chief Justice Carroll, Justices Kidd and B. A. Smith</SPAN></P>
<P><SPAN STYLE="font-family: CG Times">Appeal Dismissed on Agreed Motion</SPAN></P>
<P><SPAN STYLE="font-family: CG Times">Filed: January 16, 1997</SPAN></P>
<P><SPAN STYLE="font-family: CG Times">Do Not Publish</SPAN></P>
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<P><SPAN STYLE="font-size: 14pt"><STRONG><CENTER>TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN</STRONG></SPAN></CENTER>
</P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><HR ALIGN="CENTER" WIDTH="26%">
</P>
<STRONG><CENTER>NO. 03-9<A NAME="1">7</A>-00<A NAME="2">030</A>-CV</CENTER>
</STRONG>
<P><HR ALIGN="CENTER" WIDTH="26%">
</P>
<STRONG></STRONG><CENTER><A NAME="3">Mary Vasquez and Isaac Vasquez</A>, Appellants</CENTER>
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER>v.</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<P ALIGN="CENTER"><STRONG><A NAME="4">San Marcos Factory Store Ltd. and Prime Group, Inc. d/b/a</STRONG></P>
<P ALIGN="CENTER"><STRONG>Prime Investments, Inc.</A>, Appellees</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><HR SIZE="3">
</STRONG></P>
<SPAN STYLE="font-size: 11pt"><STRONG><CENTER>FROM THE DISTRICT COURT OF <A NAME="5">HAYS</A> COUNTY, <A NAME="6">274TH </A>JUDICIAL DISTRICT</CENTER>
</STRONG></SPAN>
<P><SPAN STYLE="font-size: 11pt"><STRONG><CENTER>NO. <A NAME="7">93-0849</A>, HONORABLE <A NAME="8">DON B. MORGAN</A>, JUDGE PRESIDING </STRONG></SPAN><STRONG></CENTER>
</STRONG></P>
<P><STRONG><HR SIZE="3">
</STRONG></P>
<STRONG>PER CURIAM</STRONG>
<P> The parties have filed an agreed motion to dismiss this appeal. Tex. R. App. P.
42.1(a)(1). The motion is granted. </P>
<P> The appeal is dismissed.</P>
<BR WP="BR1"><BR WP="BR2">
<P>Before Chief Justice Carroll, Justices Jones and Kidd</P>
<P>Appeal Dismissed on Agreed Motion</P>
<P>Filed: September 11, 1997</P>
<P>Do Not Publish</P>
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<TITLE>Matter of Attorneys in Violation of Judiciary Law §468-a (Hsiu-Pei Lo) (2020 NY Slip Op 01238)</TITLE>
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<td align="center"><B>Matter of Attorneys in Violation of Judiciary Law 468-a (Hsiu-Pei Lo)</B></td>
</tr>
<tr>
<td align="center">2020 NY Slip Op 01238</td>
</tr>
<tr>
<td align="center">Decided on February 20, 2020</td>
</tr>
<tr>
<td align="center">Appellate Division, Third Department</td>
</tr>
<tr>
<td align="center"><font color="#FF0000">Published by <a href="http://www.courts.state.ny.us/reporter/">New York State Law Reporting Bureau</a> pursuant to Judiciary Law § 431.</font></td>
</tr>
<tr>
<td align="center"><font color="#FF0000">This opinion is uncorrected and subject to revision before publication in the Official Reports.</font></td>
</tr>
</table>
<BR><BR>
<DateLine type="decided" mdy="02202020">Decided and Entered: February 20, 2020</DateLine>
<div align="center"></div>
<br>PM-33-20
<br><br><div align="center"><b><font size ="+1"><font color="FF0000">[*1]</font>In the Matter of Attorneys in Violation of Judiciary Law §468-a. Hsiu-Pei Lo, Respondent. (Attorney Registration No. 4512026.)
</font></b></div><br><br>
<DateLine type="prior_case_filed">Calendar Date: January 27, 2020</DateLine>
<BR>Before: Egan, Jr., J.P., Clark, Devine, Aarons and Colangelo, JJ.
<BR><BR>
<P>Monica A. Duffy, Attorney Grievance Committee for the Third Judicial Department, Albany, for Attorney Grievance Committee for the Third Judicial Department.</P>
<P>Hsiu-Pei Lo, New Taipei City, Taiwan, respondent pro se.</P>
<BR><BR>
<P>Per Curiam.</P>
<P>Respondent was admitted to practice by this Court in 2007 and currently lists a business address in Taiwan with the Office of Court Administration. By May 2019 order of this Court, respondent was suspended from the practice of law for conduct prejudicial to the administration of justice arising from respondent's noncompliance with the attorney registration requirements of Judiciary Law § 468-a and Rules of the Chief Administrator of the Courts (22 NYCRR) § 118.1 since 2011 (<a href="../2019/2019_03883.htm" target="_blank"><I>Matter of Attorneys in Violation of Judiciary Law § 468</I>, 172 AD3d 1706</a>, 1738 [2019]; <I>see</I> Rules of Professional Conduct [22 NYCRR 1200.0] rule 8.4 [d]). Respondent moved for reinstatement in November 2019, but such motion was dismissed as defective due to its omission of certain information (<a href="../2019/2019_07840.htm" target="_blank"><I>see e.g. Matter of Attorneys in Violation of Judiciary Law § 468 [Dahan]</I>, 176 AD3d 1564</a> [2019]. Now, having offered "new facts not offered on the prior motion" (CPLR 2221 [e] [2]), respondent seeks to renew the November 2019 motion. The Attorney Grievance Committee for the Third Judicial Department and the Lawyers' Fund for Client Protection both advise that they have no objection to respondent's motion and defer to the Court's discretion regarding its disposition.</P>
<P>Having concluded that respondent's omission of crucial information in the November 2019 motion was an inadvertent error, we deem renewal to be an appropriate remedy under the circumstances and therefore grant respondent's motion for leave to renew (<I>see Wilcox v Winter</I>, 282 AD2d 862, 864 [2001]). Furthermore, upon renewal, we grant respondent's motion for reinstatement. Notably, the application contains the appropriate attestation to respondent's compliance with the order of suspension (<I>see</I> Rules for Attorney Disciplinary Matters [22 NYCRR] part 1240, appendix D, ¶ 12). Furthermore, Office of Court Administration records confirm that respondent is now current with all biennial registration requirements and has cured the delinquency that resulted in this Court's suspension order (<I>see</I> Judiciary Law § 468-a; Rules of the Chief Admin of Cts [22 NYCRR] § 118.1). Moreover, having reviewed the submitted materials and respondent's affidavit, we are satisfied that respondent has sufficiently complied with the order of suspension and the Rules of this Court, has the requisite character and fitness for the practice of law and that it would be in the public's interest to reinstate respondent to the practice of law in New York (<a href="../2019/2019_06120.htm" target="_blank"><I>see Matter of Attorneys in Violation of Judiciary Law § 468-a [Stonner]</I>, 175 AD3d 799</a> [2019]; <a href="../2019/2019_05751.htm" target="_blank"><I>Matter of Attorneys in Violation of Judiciary Law § 468-a [Dorsett]</I>, 174 AD3d 1219</a> [2019]).</P>
<P>Egan, Jr., J.P., Clark, Devine, Aarons and Colangelo, concur.</P>
<P>ORDERED that respondent's motion for renewal is granted and, upon renewal, respondent's motion for reinstatement is granted; and it is further</P>
<P>ORDERED that respondent is reinstated as an attorney and counselor-at-law in the State of New York, effective immediately.</P>
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268 F.3d 908 (9th Cir. 2001)
PLANNED PARENTHOOD OF THE COLUMBIA/WILLAMETTE INC.; PORTLAND FEMINIST WOMEN'S HEALTH CENTER; ROBERT CRIST, M.D.; WARREN M. HERN, M.D.; ELIZABETH NEWHALL, M.D.; JAMES NEWHALL, M.D., Plaintiffs-Appellees,andKAREN SWEIGERT, M.D., Plaintiff,v.AMERICAN COALITION OF LIFE ACTIVISTS; ADVOCATES FOR LIFE MINISTRIES; MICHAEL BRAY; ANDREW BURNETT; DAVID A. CRANE; TIMOTHY PAUL DRESTE; MICHAEL B. DODDS; JOSEPH L. FOREMAN; CHARLES ROY MCMILLAN; STEPHEN P. MEARS; BRUCE EVAN MURCH; CATHERINE RAMEY; DAWN MARIE STOVER; CHARLES WYSONG, Defendants,andMONICA MIGLIORINO MILLER; DONALD TRESHMAN, Defendants-Appellants.PLANNED PARENTHOOD OF THE COLUMBIA/WILLAMETTE INC.; PORTLAND FEMINIST WOMEN'S HEALTH CENTER; ROBERT CRIST, M.D.; WARREN M. HERN, M.D.; ELIZABETH NEWHALL, M.D.; JAMES NEWHALL, M.D., Plaintiffs-Appellees,andKAREN SWEIGERT, M.D., Plaintiff,v.AMERICAN COALITION OF LIFE ACTIVISTS; ADVOCATES FOR LIFE MINISTRIES; MICHAEL BRAY; ANDREW BURNETT; DAVID A. CRANE; TIMOTHY PAUL DRESTE; JOSEPH L. FOREMAN; STEPHEN P. MEARS; MONICA MIGLIORINO MILLER; CATHERINE RAMEY; DAWN MARIE STOVER; DONALD TRESHMAN; CHARLES WYSONG, Defendants,andMICHAEL DODDS; CHARLES ROY MCMILLAN; BRUCE EVAN MURCH, Defendants-Appellants.PLANNED PARENTHOOD OF THE COLUMBIA/WILLAMETTE INC.; PORTLAND FEMINIST WOMEN'S HEALTH CENTER; ROBERT CRIST, M.D.; WARREN M. HERN, M.D.; ELIZABETH NEWHALL, M.D.; JAMES NEWHALL, M.D., Plaintiffs-Appellees,andKAREN SWEIGERT, M.D., Plaintiff,v.AMERICAN COALITION OF LIFE ACTIVISTS; ADVOCATES FOR LIFE MINISTRIES; MICHAEL BRAY; ANDREW BURNETT; DAVID A. CRANE; MICHAEL DODDS; CHARLES ROY MCMILLAN; STEPHEN P. MEARS; MONICA MIGLIORINO MILLER; BRUCE EVAN MURCH; CATHERINE RAMEY; DAWN MARIE STOVER; DONALD TRESHMAN, Defendants,andTIMOTHY PAUL DRESTE; JOSEPH L. FOREMAN; CHARLES WYSONG, Defendants-Appellants.PLANNED PARENTHOOD OF THE COLUMBIA/WILLAMETTE INC.; PORTLAND FEMINIST WOMEN'S HEALTH CENTER; ROBERT CRIST, M.D.; WARREN M. HERN, M.D.; ELIZABETH NEWHALL, M.D.; JAMES NEWHALL, M.D., Plaintiffs-Appellees,andKAREN SWEIGERT, M.D., Plaintiff,v.AMERICAN COALITION OF LIFE ACTIVISTS; ADVOCATES FOR LIFE MINISTRIES; MICHAEL BRAY; ANDREW BURNETT; DAVID A. CRANE; CATHERINE RAMEY; DAWN MARIE STOVER, Defendants-Appellants,andTIMOTHY PAUL DRESTE; MICHAEL DODDS; JOSEPH L. FOREMAN; CHARLES ROY MCMILLAN; STEPHEN P. MEARS; MONICA MIGLIORINO MILLER; BRUCE EVAN MURCH; DONALD TRESHMAN; CHARLES WYSONG, Defendants.PLANNED PARENTHOOD OF THE COLUMBIA/WILLAMETTE INC.; PORTLAND FEMINIST WOMEN'S HEALTH CENTER; ROBERT CRIST, M.D.; WARREN M. HERN, M.D.; ELIZABETH NEWHALL, M.D.; JAMES NEWHALL, M.D., Plaintiffs-Appellees,v.AMERICAN COALITION OF LIFE ACTIVISTS; ADVOCATES FOR LIFE MINISTRIES; MICHAEL BRAY; ANDREW BURNETT; DAVID A. CRANE; TIMOTHY PAUL DRESTE; MICHAEL B. DODDS; JOSEPH L. FOREMAN; CHARLES ROY McMILLAN; BRUCE EVAN MURCH; CATHERINE RAMEY; DAWN MARIE STOVER; DONALD TRESHMAN; CHARLES WYSONG, Defendants.PAUL DEPARRIE, Movant-Apellant.PLANNED PARENTHOOD OF THE COLUMBIA/WILLAMETTE INC.; PORTLAND FEMINIST WOMEN'S HEALTH CENTER; ROBERT CRIST, M.D.; WARREN M. HERN, M.D.; ELIZABETH NEWHALL, M.D.; JAMES NEWHALL, M.D., KAREN SWEIGERT, M.D., individually and on behalf of all persons similary situated, Plaintiffs-Appellees,v.AMERICAN COALITION OF LIFE ACTIVISTS; ADVOCATES FOR LIFE MINISTRIES; MICHAEL BRAY; ANDREW BURNETT; DAVID CRANE; TIMOTHY PAUL DRESTE; MICHAEL DODDS; JOSEPH L. FOREMAN; CHARLES ROY McMILLAN; MONICA MIGLIORINO MILLER; BRUCE EVAN MURCH; CATHERINE RAMEY; DAWN MARIE STOVER; DONALD TRESHMAN; CHARLES WYSONG, Defendants-Appellants.
Nos. 99-35320, 99-35325, 99-35327, 99-35331, 99-35333, 99-35405.
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Filed October 3, 2001.
ORDER
SCHROEDER, Chief Judge.
1
Upon the vote of a majority of nonrecused regular active judges of this court,1 it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court.
Notes:
1
Judges Tashima, McKeown and Gould were recused.
|
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<P><SPAN STYLE="font-size: 14pt"><STRONG><CENTER>TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN</STRONG></SPAN><STRONG></CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
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</STRONG></P>
<CENTER>NO. 03-9<A NAME="1">9</A>-00<A NAME="2">526</A>-CR</CENTER>
<P><STRONG><HR ALIGN="CENTER" WIDTH="26%">
</STRONG></P>
<CENTER><A NAME="3">Jones Daniels</A>, Appellant</CENTER>
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER>v.</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER>The State of Texas, Appellee</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
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</STRONG></P>
<SPAN STYLE="font-size: 11pt"><STRONG><CENTER>FROM THE DISTRICT COURT OF <A NAME="4">TRAVIS</A> COUNTY, <A NAME="5">331ST</A> JUDICIAL DISTRICT</CENTER>
</STRONG></SPAN>
<P><SPAN STYLE="font-size: 11pt"><STRONG><CENTER>NO. <A NAME="6">0993034</A>, HONORABLE <A NAME="7">BOB PERKINS</A>, JUDGE PRESIDING</STRONG></SPAN><STRONG></CENTER>
</STRONG></P>
<P><STRONG><HR SIZE="3">
</STRONG></P>
A jury found appellant Jones Daniels guilty of delivering less than one gram of
cocaine. <EM>See</EM> Tex. Health & Safety Code Ann. § 481.112 (West Supp. 2000). The district court
assessed punishment, enhanced by previous convictions, at imprisonment for nine years.
<P>Appellant's court-appointed attorney filed a brief concluding that the appeal is
frivolous and without merit. The brief meets the requirements of <EM>Anders v. California</EM>, 386 U.S.
738 (1967), by presenting a professional evaluation of the record demonstrating why there are no
arguable grounds to be advanced. <EM>See also</EM> <EM>Penson v. Ohio</EM>, 488 U.S. 75 (1988); <EM>High v. State</EM>,
573 S.W.2d 807 (Tex. Crim. App. 1978); <EM>Currie v. State</EM>, 516 S.W.2d 684 (Tex. Crim. App.
1974); <EM>Jackson v. State</EM>, 485 S.W.2d 553 (Tex. Crim. App. 1972); <EM>Gainous v. State</EM>, 436 S.W.2d
137 (Tex. Crim. App. 1969). A copy of counsel's brief was delivered to appellant, and appellant
was advised of his right to examine the appellate record and to file a pro se brief. A pro se brief
was filed.</P>
<P>Appellant first urges that the State failed to establish a proper chain of custody of
the cocaine. The record reflects, however, that the cocaine was placed in a sealed bag by the
arresting officer and that a record was kept of each person who thereafter had possession of the
bag. The procedure followed was that approved in <EM>Stoker v. State</EM>, 788 S.W.2d 1, 10 (Tex. Crim.
App. 1989). Point of error one is overruled.</P>
<P>Next, appellant contends his trial counsel was ineffective during jury selection
because he did not object to the court granting the State's three challenges for cause and did not
thereafter request additional peremptory strikes. Appellant does not offer any argument in support
of this contention, and in particular does not explain why the State's challenges should not have
been granted. The record reflects that two of the three challenged panelists could not consider
the full range of punishment and the third had a pending theft accusation. <EM>See</EM> Tex. Code Crim.
Proc. Ann. arts. 35.16(a)(3), (b)(3) (West 1989 & Supp. 2000); 35.19 (West 1989). Point of
error two is overruled.</P>
<P>Finally, appellant complains of ineffective assistance of counsel on appeal. Once
again, he offers no argument in support of this contention. Point of error three is overruled.</P>
<BR WP="BR1"><BR WP="BR2">
<P>The judgment of conviction is affirmed.</P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P> <SPAN STYLE="text-decoration: underline">
</SPAN></P>
<P> Lee Yeakel, Justice</P>
<P>Before Justices Jones, Yeakel and Patterson</P>
<P>Affirmed</P>
<P>Filed: August 10, 2000</P>
<P>Do Not Publish</P>
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<P><SPAN STYLE="font-size: 14pt"><STRONG><CENTER>TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN</STRONG></SPAN></CENTER>
</P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><HR ALIGN="CENTER" WIDTH="26%">
</P>
<STRONG><CENTER>NO. 03-00<A NAME="1"></A>-00<A NAME="2">711</A>-CV</CENTER>
</STRONG>
<P><HR ALIGN="CENTER" WIDTH="26%">
</P>
<STRONG></STRONG><CENTER><A NAME="3">Pamalee Chambers</A>, Appellant</CENTER>
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER>v.</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER><A NAME="4">Greentree Apartments</A>, Appellee</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><HR SIZE="3">
</STRONG></P>
<SPAN STYLE="font-size: 11pt"><STRONG><CENTER>FROM THE COUNTY COURT AT LAW NO. 2 OF <A NAME="5">TRAVIS</A> COUNTY</CENTER>
</STRONG></SPAN>
<P><SPAN STYLE="font-size: 11pt"><STRONG><CENTER>NO. <A NAME="7">251,376</A>, HONORABLE <A NAME="8">ORLINDA NARANJO</A>, JUDGE PRESIDING </STRONG></SPAN><STRONG></CENTER>
</STRONG></P>
<P><STRONG><HR SIZE="3">
</STRONG></P>
<STRONG>PER CURIAM</STRONG>
<P> Pamalee Chambers attempts to appeal from a judgment against her in a rent dispute
with the Greentree Apartments. Chambers filed a late notice of appeal, but timely filed a motion
for extension, which the Court granted. <EM>Pamalee Chambers v. Greentree Apartments</EM>, No. 3-00-711-CV (Tex. App.--Austin March 14, 2001) (not designated for publication). In that order, this
Court sustained the trial court's ruling that Chambers was not entitled to appeal as an indigent.
Tex. R. App. P. 20. We informed Chambers, who has paid her appellate fees, that she must
make payment arrangements for the record or her appeal would be subject to dismissal. Tex. R.
App. P. 37.3, 42.3(b), (c).</P>
<P> By letter of April 6, 2001, this County Clerk's office informed this Court<STRONG><A HREF="#N_1_"><SUP> (1)</SUP></A></STRONG> that
Chambers has neither paid for the clerk's record nor made payment arrangements. Accordingly,
we dismiss the appeal for want of prosecution. Tex. R. App. P. 37.3(b), 42.3(b), (c).</P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P>Before Chief Justice Aboussie, Justices Yeakel and Patterson</P>
<BR WP="BR1"><BR WP="BR2">
<P>Appeal Dismissed for Want of Prosecution</P>
<BR WP="BR1"><BR WP="BR2">
<P>Filed: April 26, 2001</P>
<BR WP="BR1"><BR WP="BR2">
<P>Do Not Publish
<P><A NAME="N_1_">1. </A> The County Clerk's office sent copies to all parties as well.</P>
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<P><SPAN STYLE="font-size: 14pt"><STRONG><CENTER>TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN</STRONG></SPAN><STRONG></CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><HR ALIGN="CENTER" WIDTH="26%">
</STRONG></P>
<CENTER>NO. 03-9<A NAME="1">9</A>-00<A NAME="2">463</A>-CR</CENTER>
<P><STRONG><HR ALIGN="CENTER" WIDTH="26%">
</STRONG></P>
<CENTER><A NAME="3">Paula Wooten</A>, Appellant</CENTER>
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER>v.</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER>The State of Texas, Appellee</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><HR SIZE="3">
</STRONG></P>
<SPAN STYLE="font-size: 11pt"><STRONG><CENTER>FROM THE COUNTY COURT AT LAW NO. 7 OF <A NAME="4">TRAVIS</A> COUNTY<A NAME="5"></A></CENTER>
</STRONG></SPAN>
<P><SPAN STYLE="font-size: 11pt"><STRONG><CENTER>NO. <A NAME="6">524587</A>, HONORABLE <A NAME="7">BRENDA KENNEDY</A>, JUDGE PRESIDING</STRONG></SPAN><STRONG></CENTER>
</STRONG></P>
<P><STRONG><HR SIZE="3">
</STRONG></P>
PER CURIAM
<P>This is an appeal from a judgment of conviction for harassment. Sentence was
imposed on June 1, 1999. There was a timely motion for new trial. The deadline for perfecting
appeal was therefore June 30, 1999. <EM>See </EM>Tex. R. App. P. 26.2(a)(2). Notice of appeal was filed
on July 30, and a motion for extension of time for filing notice of appeal was filed on August 4,
1999. Neither the notice of appeal nor the motion for extension of time was timely. <EM>See </EM>Tex. R.
App. P. 26.3. </P>
<P>The motion for extension of time to file notice of appeal is overruled. We lack
jurisdiction to dispose of the purported appeal in any manner other than by dismissing it for want
of jurisdiction. <EM>See Slaton v. State</EM>, 981 S.W.2d 208 (Tex. Crim. App. 1998); <EM>Olivo v. State</EM>, 918
S.W.2d 519, 523 (Tex. Crim. App. 1996).</P>
<BR WP="BR1"><BR WP="BR2">
<P>The appeal is dismissed.</P>
<BR WP="BR1"><BR WP="BR2">
<P>Before Chief Justice Aboussie, Justices Kidd and Patterson</P>
<P>Dismissed for Want of Jurisdiction</P>
<P>Filed: August 26, 1999</P>
<P>Do Not Publish</P>
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<P><SPAN STYLE="font-size: 14pt"><STRONG><CENTER>TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN</STRONG></SPAN></CENTER>
</P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><HR ALIGN="CENTER" WIDTH="26%">
</P>
<STRONG><CENTER>NO. 03-9<A NAME="1">7</A>-00<A NAME="2">061</A>-CV</CENTER>
</STRONG>
<P><HR ALIGN="CENTER" WIDTH="26%">
</P>
<STRONG></STRONG><CENTER>Indemnity Casualty & Property Limited; Insurance General Management Corporation;</CENTER>
<P><STRONG><CENTER>Mark Elwyn Burroughs; and Kenneth Rowe Burroughs, Appellant</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER>v.</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER>Elton Bomer, Commissioner of Insurance, Appellee</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><HR SIZE="3">
</STRONG></P>
<SPAN STYLE="font-size: 11pt"><STRONG><CENTER>FROM THE DISTRICT COURT OF <A NAME="5">TRAVIS</A> COUNTY,<A NAME="6"></A> 98TH JUDICIAL DISTRICT</CENTER>
</STRONG></SPAN>
<P><SPAN STYLE="font-size: 11pt"><STRONG><CENTER>NO. 96-02540<A NAME="7"></A>, HONORABLE SUZANNE COVINGTON<A NAME="8"></A>, JUDGE PRESIDING </STRONG></SPAN><STRONG></CENTER>
</STRONG></P>
<P><STRONG><HR SIZE="3">
</STRONG></P>
<STRONG>PER CURIAM</STRONG>
<BR WP="BR1"><BR WP="BR2">
<P> Appellants Indemnity Casualty & Property Limited; Insurance General Management
Corporation; Mark Elwyn Burroughs; and Kenneth Rowe Burroughs move to dismiss the appeal. We
grant their motion and dismiss the appeal.</P>
<BR WP="BR1"><BR WP="BR2">
<P>Before Chief Justice Carroll, Justices Aboussie and B. A. Smith</P>
<P>Appeal Dismissed on Appellants' Motion</P>
<P>Filed: February 27, 1997</P>
<P>Do Not Publish</P>
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