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https://www.courtlistener.com/api/rest/v3/opinions/3224040/

The defendant was tried and convicted upon an affidavit which charged "that within 12 months before the making of this affidavit, and in said county, Mace Dunn, whose name is to the affiant otherwise unknown, knowingly entered upon the land of the affiant and cut down wood or timber growing thereon, with the intent to remove and appropriate same to his own use." The sufficiency of this affidavit was not challenged by demurrer or otherwise. It charged an offense under section 7828 of the Code of 1907, and charged a trespass upon the lands of W.E. Dunn, by having knowingly entered upon said land and cut wood or timber growing thereon, etc. On the trial of this case, over the timely objection of the defendant, the court permitted *Page 479 the solicitor to introduce in evidence a deed executed by "Elbert Dunn and Martha Dunn to W. Alonzo Dunn," for the purpose of showing ownership or title in W.E. Dunn, whose lands were alleged to have been trespassed upon. In this there was error which necessitates a reversal of the judgment of conviction. The offense denounced by the statute (section 7828) is one against the ownership of the property upon which the alleged trespass is said to have been committed, in the instant case, the lands of prosecutor W.E. Dunn, and this necessary allegation is not met by the proof by the introduction in evidence of a deed showing that the lands belonged to W. Alonzo Dunn. The deed was res inter alios acta, as it was not signed by the defendant and was not admissible against him for any purpose. Furthermore, it does not appear from the record that W. Alonzo Dunn, the grantee in the deed, and W.E. Dunn, is the same person who appears as prosecutor in this case. The substantive law in the case was well and clearly stated by the court in its oral charge. Other questions presented on this appeal need not be considered. The judgment of the lower court is reversed, and the cause is remanded. Reversed and remanded.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/2741206/

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________________________ ) MICHALI TOUMAZOU, et. al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 09-1967 (PLF) ) TURKISH REPUBLIC OF NORTHERN ) CYPRUS, et. al., ) ) Defendants. ) _________________________________________ ) OPINION This litigation arises out of the protracted conflict between Turkish and Greek Cypriots. See generally Autocephalous Greek-Orthodox Church v. Goldberg & Feldman Fine Arts, Inc., 917 F.2d 278, 280-81 (7th Cir. 1990); Crist v. Republic of Turkey, 995 F. Supp. 5, 7 (D.D.C. 1998). “The Cypriot people have long been a divided people, approximately three- fourths being of Greek descent and Greek-Orthodox faith, the other quarter of Turkish descent and Muslim faith”. Autocephalous Greek-Orthodox Church v. Goldberg & Feldman Fine Arts, Inc., 917 F.2d at 280-81. Formerly under Ottoman and then British control, the Republic of Cyprus was founded in 1960 by mutual agreement between Greece, Turkey, and Great Britain. Id. at 280. Animosity between Greek and Turkish Cypriots, who desired unification with Greece or Turkey respectively, resurfaced shortly thereafter. Id. Intercommunal violence was common throughout the 1960’s and early ‘70s. Id. This tension erupted in July 1974 when the Greek Cypriot military ousted the joint Cypriot government. TRNC Statement of Facts at 9; Crist v. Republic of Turkey, 995 F. Supp. at 7. 1 In response, Turkey invaded Cyprus. TRNC Statement of Facts at 10; Crist v. Republic of Turkey, 995 F. Supp. at 7. In the bitter conflict that ensued, both sides committed atrocities. See TRNC Statement of Facts at 9-10; Compl. ¶ 12; Pls. Mot. to Amend. Ex. 2 ¶¶ 15-16. By the time a cease-fire was declared in August of 1974, Turkey had taken control of approximately one third of Cyprus, leaving many Greek Cypriots as refugees. Compl. ¶¶ 10-11; TRNC Statement of Facts at 10-11; Crist v. Republic of Turkey, 995 F. Supp. at 7. To this day, United Nations peacekeeping forces maintain the “Green Line” that separates the Turkish- occupied north from the rest of Cyprus. Compl. ¶ 17; TRNC Statement of Facts at 12; Crist v. Republic of Turkey, 995 F. Supp. at 7. In the aftermath, Turkish Cypriots established a functioning government called the “Turkish Federated State of Cyprus,” which was succeeded by the Turkish Republic of Northern Cyprus in 1983. TRNC Statement of Facts at 12; Crist v. Republic of Turkey, 995 F. Supp. at 7. 2 The TRNC claimed ownership of all property it deemed was “abandoned” by Greek 1 The papers reviewed in connection with the pending motions, and the abbreviations used to identify them throughout this Opinion, are: Plaintiffs’ Second Amended Complaint (“Compl.”) [Dkt. No. 14]; TRNC’s Motion to Dismiss for Lack of Personal Jurisdiction (“TRNC Mot.”) [Dkt. No. 16]; TRNC’s Counterstatement of Facts (“TRNC Statement of Facts”) [Dkt. No. 16 Attach. 2]; Plaintiffs’ Opposition to TRNC’s Motion to Dismiss (“Pls. TRNC Opp.”) [Dkt. No. 20]; TRNC’s Reply to the Plaintiffs’ Opposition to TRNC’s Motion to Dismiss (“TRNC Reply”) [Dkt. No. 26]; the HSBC Defendants’ Motion to Dismiss for Failure to State a Claim (“HSBC Mot.”) [Dkt. No. 43]; Plaintiffs’ Opposition to the HSBC Defendants’ Motion to Dismiss (“Pls. HSBC Opp.”) [Dkt. No. 45]; the HSBC Defendants’ Reply to the Plaintiffs’ Opposition (“HSBC Reply”) [Dkt. No. 47]; Plaintiffs’ Motion for Leave to Amend the Second Amended Complaint (“Pls. Mot. to Amend”) [Dkt. No. 29]; TRNC’s Opposition to the Plaintiffs’ Motion to Amend the Second Complaint (“TRNC Opp.”) [Dkt. No. 31]; and Plaintiffs’ Reply to TRNC’s Opposition to Their Motion for Leave to Amend the Second Amended Complaint (“Pls. Reply”) [Dkt. No. 42]. 2 The U.N. Security Council denounced the TRNC as “legally invalid,” and, to this day, Turkey is the only country to diplomatically recognize the TRNC. Compl. ¶¶ 15, 31-33; Crist v. Republic of Turkey, 995 F. Supp. at 7. 2 Cypriots who fled south. Compl. ¶ 17. 3 This “abandoned” property was redistributed to Turkish Cypriots who, in return, were required to renounce their rights to property in southern Cyprus. TRNC Statement of Facts at 17-18. 4 The plaintiffs, Greek Cypriots, filed the instant proposed class action suit on October 19, 2009, bringing varied claims, alleging that the TRNC unlawfully confiscated their property in northern Cyprus in 1974, Compl. ¶¶ 10-14, 18-20, and has masterminded a broad scheme to profit from and sell these properties “in the United States, Europe and around the world with the aid, assistance and support of HSBC.” Id. ¶ 45. 5 Plaintiffs allege that the HSBC defendants “do[] business with the TRNC through the north of Cyprus and the United States and knowingly aid[], assist[], support[] and benefit[] from the fraudulent property scheme of the TRNC.” Id. ¶ 46. 3 The Court notes that the Republic of Cyprus also allegedly “requisitioned” property owned by Turkish Cypriots, which is now held in trust by a property management department of the Cypriot government. TRNC Statement of Facts at 18. 4 In 2005, the TRNC created the Immovable Property Commission (“IPC”) to provide Greek Cypriots a domestic remedy for claims relating to their properties in northern Cyprus. TRNC Mot. Ex. 1 ¶ 39. The adequacy of the IPC in resolving these property disputes has been upheld by the European Court of Human Rights. See generally Demopoulos v. Turkey, 2010 Eur. C. H.R. 306 (dismissing a series of related cases for failure to exhaust domestic remedies). Moreover, “[u]nder Cyprus Law, Greek Cypriot property owners may bring legal actions before the competent Courts of the Republic against trespassers to their properties in the Turkish-occupied area, claiming damages and other legal remedies available to them under civil law. Judgments issued in favour of lawful property owners shall be recognized and enforced against property/assets of the defendants/judgment debtors in any EU member State, under the provisions of EC Regulation No. 44/2001.” Pls. HSBC Opp. Ex. 1. at 1. 5 Specifically, the plaintiffs have brought claims for: (1) interference and denial of property rights including access, use and enjoyment of property; (2) violation of international and customary law; (3) civil conspiracy; (4) aiding and abetting; (5) unjust enrichment; (6) violation of the Lanham Act; (7) intentional interference with property rights; and (8) an accounting. Compl. ¶¶ 85-134. 3 The TRNC filed its motion to dismiss for lack of personal jurisdiction on March 26, 2010; plaintiffs requested leave to file a third amended complaint on April 12, 2011. The proposed amended complaint seeks to add 758 individual plaintiffs and several new claims. The HSBC defendants filed their motion to dismiss for failure to state a claim on November 15, 2011. Their primary argument is that the plaintiffs have failed to adequately plead that the HSBC defendants are liable for the alleged acts of a Turkish subsidiary, HSBC A.Ş., which operates three branches in northern Cyprus. Upon consideration of the parties’ arguments, the relevant legal authorities, and the record in this case, the Court concludes that it lacks personal jurisdiction over the TRNC and that the complaint fails to state a claim against the HSBC defendants. For the same reasons, the Court also finds that it would be futile to permit plaintiffs to file an amended complaint. On September 30, 2014, the Court granted both motions to dismiss with prejudice and denied plaintiffs’ motion for leave to amend. This Opinion explains the reasoning underlying that September 30, 2014 Order. I. TRNC’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION The plaintiffs assert that this Court has personal jurisdiction over the TRNC pursuant to: (1) D.C. Code § 13–334(a), which authorizes general jurisdiction over foreign corporations “doing business” in the District of Columbia; and (2) D.C. Code § 13-423(a)(1), which authorizes specific jurisdiction over defendants who “transact business” in the District of Columbia. Pls. TRNC Opp. at 10-17. The Court disagrees and finds that it cannot exercise either general or specific personal jurisdiction over TRNC. 6 6 The Court also notes that it is unlikely the TRNC has the capacity to be sued for state law claims in the District of Columbia, given the plaintiffs’ repeated insistence that the 4 A. Legal Standards The plaintiffs bear the burden of establishing a prima facie showing that the Court has personal jurisdiction over the TRNC. See Mwani v. Bin Laden, 417 F.3d 1, 7 (D.C. Cir. 2005); First Chicago Int’l v. United Exch. Co., 836 F.2d 1375, 1378-79 (D.C. Cir. 1988). In order to meet this burden, plaintiffs “must provide sufficient factual allegations, apart from mere conclusory assertions, to support the exercise of personal jurisdiction over the defendant.” Howe v. Embassy of Italy, 2014 WL 4449697, at *2 (D.D.C. Sept. 11, 2014); see also First Chicago Int’l v. United Exch. Co., 836 F.2d at 1378 (“Conclusory statements . . . do not constitute the prima facie showing necessary to carry the burden of establishing personal jurisdiction”); Alkanani v. Aegis Def. Servs., 976 F. Supp. 2d 13, 22 (D.D.C. 2014) (plaintiff has the burden of establishing a factual basis for a court’s exercise of personal jurisdiction and for alleging facts connecting defendant with the forum). On a motion to dismiss for lack of personal jurisdiction under Rule 12(b)(2) of the Federal Rules of Civil Procedure, the Court need not accept all of the plaintiffs’ allegations as true. Jung v. Assoc. of Am. Med. Colls., 300 F. Supp. 2d 119, 127 (D.D.C. 2004). It “may receive and weigh affidavits and other relevant matter [outside of the pleadings] to assist in determining the jurisdictional facts.” Id. (quoting United States v. Philip Morris Inc., 116 F. Supp. 2d. 116, 120 n.4 (D.D.C. 2000)); see also Alkanani v. Aegis Def. Servs., 976 F. Supp. 2d TRNC is an “unincorporated association.” See Compl. ¶¶ 7, 40; Pls. TRNC Opp. at 3, 5 n.5, 9 (“The ‘TRNC’ is strictly a foreign unincorporated association and nothing more”). Millenium Square Residential Ass’n v. 2200 M St., LLC, 952 F. Supp. 2d 234, 243 (D.D.C. 2013) (quoting Plan Comm. v. Pricewaterhousecoopers, LLP, 2007 WL 1191917, at *3-4 (D.D.C. Apr. 20, 2007)) (“[T]he common law of the District of Columbia is that an unincorporated association may not be sued in its own name”); see also FED. R. CIV. P. 17(b)(3). 5 at 22. But all factual discrepancies must be resolved in the plaintiffs’ favor. Crane v. N.Y. Zoological Soc., 894 F.2d 454, 456 (D.C. Cir. 1990). B. General Personal Jurisdiction under D.C. Code § 13-334(a) In support of this Court’s exercise of general personal jurisdiction over the TRNC pursuant to D.C. Code § 13-334(a), the plaintiffs assert that the TRNC: 1. “Hir[es] employees from abroad and send[s] them as representative or staff to the District of Columbia, leas[es] office, hir[es] and pay[s] lawyers, [uses] letterhead, [an] interactive website, phone, email, facsimiles, maps, and a DC postal address, writ[es] letters to newspapers, speak[s] at universities, [and] ha[s] offices [with] other “TRNC” representative[s] who are business owners;” 2. Employs a “known lobbyist and representative of the ‘Turkish Cypriot Community’ and not the so called “TRNC,” who holds “himself out as an ambassador in Washington DC to at least Turkey;” 3. Conducts banking transactions with HSBC “and its network of institution[s] under its name;” 4. Maintains a website (www.trncwashdc.org); and 5. Operates in the District without a business license and has failed to pay D.C. taxes. Pls. TRNC Opp. at 4-7. Plaintiffs argue that these assertions are sufficient to establish general personal jurisdiction because they demonstrate that the TRNC’s contacts with the District “have been so continuous and systematic that it could foresee being haled into court in the District of Columbia.” Pls. TRNC Opp. at 10 (quoting AGS Int’l Servs. S.A. v. Newmont U.S.A. Ltd., 346 F. Supp. 2d 64, 74 (D.D.C. 2004)). Since the plaintiffs’ briefing in this case, however, the Supreme Court has held that “engag[ing] in a substantial, continuous, and systematic course of 6 business in the forum is not, in and of itself, enough for general jurisdiction to comport with due process.” Daimler AG v. Bauman, 134 S. Ct. 746, 761 (2014); see also Goodyear Dunlop Tires Operations, SA v. Brown, 131 S. Ct. 2846 (2011). Rather, as the Court made plain in Goodyear, and repeated in Daimler, “general jurisdiction requires affiliations so continuous and systematic as to render [the foreign entity] essentially at home in the forum State.” Daimler AG v. Bauman, 134 S. Ct. at 758 n.11 (emphasis added) (quoting Goodyear Dunlop Tires Operations, SA v. Brown, 131 S. Ct. at 2851) (internal quotation marks omitted). Otherwise it is not amenable to suit for claims unrelated to particular activity in the forum. Goodyear Dunlop Tires Operations, SA v. Brown, 131 S. Ct. at 2856. 7 Plaintiffs’ allegations, even if true, fall woefully short of demonstrating that the TRNC is “at home” in the District of Columbia. See Pls. TRNC Opp. at 4-7. 8 Although unrecognized by the United States, the TRNC controls and administers over a third of the island of Cyprus and purportedly operates as a “democratic republic,” with a President, Prime Minister, legislature, and judiciary. TRNC Statement of Facts at 12-13; Compl. ¶¶ 7, 13, 16. The plaintiffs’ allegations, which are premised on the TRNC’s ongoing control over their property in Cyprus, indicate that the TRNC is “at home” in northern Cyprus, as its name suggests, not in the District of Columbia. See Daimler AG v. Bauman, 134 S. Ct. at 762 n.20 (an entity “operat[ing] 7 It follows from what the Supreme Court said in Goodyear and Daimler that the constitutional due process requirement for general jurisdiction goes beyond the minimum contacts test initially announced in International Shoe v. Washington, 326 U.S. 310 (1945). While D.C. Code § 13-334(a) previously was said to be “co-extensive with the reach of constitutional due process,” Gorman v. Ameritrade Holding Corp., 293 F.3d 506, 510 (D.C. Cir. 2012), that reach appears to have been constricted by the Supreme Court such that the D.C. Code may be more permissive than due process now permits. This Court, however, need not resolve that question here. 8 This Court may not consider the TRNC’s contacts through its D.C. office for purposes of personal jurisdiction under the “government contacts” exception. See infra at 9-10. 7 in many places can scarcely be deemed at home in all of them. Otherwise, ‘at home’ would be synonymous with ‘doing business’ tests framed before specific jurisdiction evolved in the United States.”). C. Specific Personal Jurisdiction under D.C. Code § 13-423(a)(1) Determining whether D.C. Code § 13-423(a)(1) authorizes specific personal jurisdiction requires a two-part inquiry: (1) whether the defendant has “transacted business” in the District of Columbia; and (2) whether the plaintiffs’ claims “arise from” the business transacted. See, e.g., Alkanani v. Aegis Def. Servs., LLC, 976 F. Supp. 2d at 21 (citing D.C. Code §§ 13-423(a)(1) and (b)). Specific jurisdiction thus “requires a nexus between a foreign corporation’s particular contact with the District of Columbia and the claim that the plaintiff asserts.” Id. (citing Novak-Canzeri v. Saud, 864 F. Supp. 203, 206 (D.D.C. 1994)). “[The] ‘transacting any business’ clause has been interpreted to provide jurisdiction to the full extent allowed by the Due Process Clause.” United States v. Ferrara, 54 F.3d 825, 828 (D.C. Cir. 1995); see also Brunson v. Kalil & Co., 404 F. Supp. 2d 221, 237 (D.D.C. 2005). “Transacting business” therefore requires that the TRNC “purposefully avail[ed] itself of the privilege of conducting business within the forum state” and that it has established sufficient minimum contacts in the forum state so that it “should reasonably anticipate being haled into court there.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-75 (1985); see Atlantigas Corp. v. Nisource, Inc., 290 F. Supp. 2d 34, 43 (D.D.C. 2003). In support of this Court’s exercise of specific personal jurisdiction, the TRNC offers the same factual assertions listed above. But these allegations also do not establish the prima facie showing required for this Court to exercise specific personal jurisdiction because the 8 plaintiffs have failed to provide sufficient factual allegations that the TRNC “purposefully avail[ed] itself of the privilege of conducting activities within” the District of Columbia, Burger King Corp. v. Rudzewicz, 471 U.S. at 475, or that its specific claims are based on or arise from those activities. Atlantigas Corp. v. Nisource, Inc., 290 F. Supp. 2d at 44 (quoting Novak- Canzeri v. Saud, 864 F. Supp. at 206) (“The claim itself must have arisen from the business transacted in the District of Columbia or there is no jurisdiction”). First, the maintenance of an office for the purpose of interacting with the federal government, pursuant to the “government contacts” exception, cannot establish personal jurisdiction. The so-called “government contacts” exception bars any contacts due to “a nonresident’s entry into the District of Columbia for ‘the purpose of contacting federal governmental agencies’” from “serv[ing] as a basis for personal jurisdiction.” Alkanani v. Aegis Def. Servs., 976 F. Supp. 2d at 25 (quoting Savage v. Bioport, Inc., 460 F. Supp. 2d 55, 62 (D.D.C. 2006)). In particular, the exception “applies when non-resident corporations ‘keep an office in the District for the purpose of maintaining contact with Congress and governmental agencies.’” Alkanani v. Aegis Def. Servs., LLC, 976 F. Supp. 2d at 25 (quoting Sierra Club v. Tenn. Valley Auth., 905 F. Supp. 2d 356, 362 (D.D.C. 2012)). The plaintiffs argue that the TRNC’s office is not used for these purposes, but only offer bald conclusory allegations in support of this argument. See, e.g., Pls. TRNC Opp. at 12 (“The TRNC presence in Washington DC was not for government interaction or contact as clandestinely argued and presented but to assist in the transfer of funds illegally obtained from property belonging to the plaintiffs to bank accounts with HSBC that occur in whole or in part in Washington, DC”). In contrast, the TRNC has provided detailed affidavits describing the TRNC 9 D.C. office’s activities and documentation from the U.S. Department of State regarding their representative’s status. See TRNC Mot. Ex. 1 ¶¶ 15, 16, 18, 21-25 (affidavit of TRNC Representative Hilmi Akil that the TRNC Office in D.C. exists only to interact with the U.S. government); id. Ex. 3; id. Ex. 4 (letter from the U.S. Dept. of State attesting that Mr. Akil “interacts with Department of State officials on a regular, long-term basis”). The plaintiffs’ conclusory allegations are amply outweighed by the TRNC’s affidavits and exhibits. The Court concludes that the TRNC’s contacts through its D.C. office are properly excluded from consideration regarding personal jurisdiction. Consequently, the TRNC’s staffing of that office and banking to fund such activities are also excluded from consideration. The plaintiffs’ remaining allegations, regarding the website www.trncwashdc.org and the TRNC’s failure to pay taxes or register for a business license, also fail. Regardless of the website’s ownership, which the parties dispute, the mere accessibility of a website in the District is insufficient to establish minimum contacts. “A website accessible by computers in the District of Columbia, or by District of Columbia residents, is not purposeful availment; rather, it is merely an unavoidable side-effect of modern Internet technology.” Doe v. Israel, 400 F. Supp. 2d 86, 121 (D.D.C. 2005). The complaint and the plaintiffs’ submissions are devoid of any allegation that District residents actually have accessed the website. See Atlantigas Corp. v. Nisource, Inc., 290 F. Supp. 2d at 52 (“The question is not whether District of Columbia residents ‘can’ transact business in the District with the non-resident defendant through the defendant's website, but if they actually ‘do’ . . . .”); see also Alkanani v. Aegis Def. Servs., 976 F. Supp. at 32. Lastly, the TRNC’s failure to register for a business license or pay D.C. taxes 10 weighs against finding the TRNC transacts business in the District, absent any factual allegations that the TRNC was required to do either. In sum, the plaintiffs have failed to allege any specific facts showing that the TRNC transacts business in its District of Columbia office or over the internet, nor have they refuted sworn affidavits and evidence to the contrary. Accordingly, the plaintiffs have not made a prima facie showing under Section 13-423(a)(1). D. Jurisdiction under Federal Rule of Civil Procedure 4(k)(2) In the alternative, the plaintiffs assert that the Court may exercise personal jurisdiction over the TRNC pursuant to the federal long-arm statute, Rule 4(k)(2) of the Federal Rules of Civil Procedure. Pls. TRNC Opp. at 17. This Rule allows a district court to exercise general or specific personal jurisdiction over a defendant who lacks sufficient contacts with any single forum, but has such contacts with the United States as a whole. See FED. R. CIV. P. 4(k)(2). Under this Rule, a court may exercise jurisdiction over a defendant “(1) for a claim arising under federal law, (2) where a summons has been served, (3) if the defendant is not subject to the jurisdiction of any single state court, (4) provided that the exercise of federal jurisdiction is consistent with the Constitution (and laws) of the United States.” Mwani v. Bin Laden, 417 F.3d at 10. In support of personal jurisdiction under Rule 4(k)(2), the plaintiffs rely upon the conclusory allegations rejected above and offer only the following additional assertions of fact: the TRNC (1) maintains a “West coast” and “NY” representative, (2) participated in a Small Business Conference in the “Southern United States,” and (3) attempted to intervene in litigation 11 in Indiana in 1989. Pls. TRNC Opp. 4-7. 9 These allegations fail to support personal jurisdiction under Rule 4(k)(2). First, the plaintiffs’ claims do not arise from these contacts, such that this Court could exercise specific personal jurisdiction. Second, they fall far short of demonstrating that the TRNC is “at home” in the United States, as required for general personal jurisdiction. The TRNC’s contacts with the United States as a whole – just like its contacts with the District of Columbia – are insufficient to satisfy due process. See Mwani v. Bin Laden, 417 F.3d at 11-12. Consequently, this Court cannot exercise personal jurisdiction under Rule 4(k)(2) of the Federal Rules of Civil Procedure. 10 E. Jurisdictional Discovery The plaintiffs request jurisdictional discovery to “show the full extent of [the TRNC’s] contacts and representation made on the website, along with banking and information relevant and indicative of its nature of business in the District of Columbia, including meetings, visitors, loans, payments, articles, speaking engagements and business.” Pls. TRNC Opp. at 12-13; see also id. at 15, 17 n.11. Such jurisdictional discovery “lies within the district court’s discretion,” Goodman Holdings v. Rafidain Bank, 26 F.3d 1143, 1147 (D.C. Cir. 1994), and is appropriate “if it could produce facts that would affect [the court’s] 9 With respect to the Small Business Administration conference, the plaintiffs also state that “[t]he trncwashdc.org website appears with the director of the SBA Mr. Doug Gurley, who suggests the members, that indicates the trncwashdc.org website/office, provided loans or funds in the amount of $75,000.00 to assist businesses affected by hurricane Katrina [sic].” To the extent the plaintiffs allege that the TRNC contributed to these loans, the plaintiffs own exhibit clearly states that the loans were provided by the Association of Small Business Development Centers. Pls. TRNC Opp. Ex. 11 at 1. The record does not indicate, nor have plaintiffs alleged, that the TRNC is a member of this association. 10 Because the Court finds it lacks personal jurisdiction over the TRNC, it does not reach the TRNC’s arguments regarding venue. 12 jurisdictional analysis.” Al Maqaleh v. Hagel, 738 F.3d 312, 325-26 (D.C. Cir. 2013). Jurisdictional discovery is not appropriate, however, “in the absence of some specific indication regarding what facts additional discovery could produce.” Id. The plaintiffs therefore must “demonstrate with plausible factual support amounting to more than speculation or conclusory statements that discovery will uncover sufficient evidence” to establish personal jurisdiction. Simon v. Republic of Hungary, 2014 WL 1873411, at *41 (D.D.C. May 9, 2014); see, e.g., El-Fadl v. Cent. Bank of Jordan, 75 F.3d 668, 671 (D.C. Cir. 1996), abrogated on other grounds by Samantar v. Yousef, 560 U.S. 305 (2010) (plaintiff was entitled to jurisdictional discovery based upon evidence of specific transactions by defendant bank in the forum). The plaintiffs in this case have failed to make this showing, relying only on conclusory statements that the TRNC advertises and sells property through its D.C. office and website. See, e.g., Compl. ¶ 49. They have not provided any allegations or evidence regarding specific transactions, and have provided no evidence to discredit the TRNC’s contrary affidavits. Consequently, jurisdictional discovery is unwarranted, and the plaintiffs’ request will be denied. II. HSBC DEFENDANTS’ MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM The HSBC defendants move to dismiss all claims against them for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing that: (1) the plaintiffs have failed to allege facts to support imposing liability on the HSBC defendants for the acts of a Turkish subsidiary; and (2) the complaint fails to place the HSBC defendants on notice of the claims against them, in violation of Rule 8 of the Federal Rules of Civil Procedure. The Court agrees and will dismiss the claims against the HSBC defendants. 13 A. Legal Standards Rule 12(b)(6) of the Federal Rules of Civil Procedure allows dismissal of a complaint if the plaintiffs fail “to state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests . . . .’” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); see also Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion to dismiss, the facts alleged must be “enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. at 555. The complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. at 555). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” In re Interbank Funding Corp. Sec. Litig., 629 F.3d 213, 218 (D.C. Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. at 678). In considering a motion to dismiss under Rule 12(b)(6), the Court “must accept as true all of the factual allegations contained in the complaint.” Bell Atlantic Corp. v. Twombly, 550 U.S. at 555 (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002)). The complaint is construed liberally in the plaintiff’s favor, and the Court gives the plaintiff “the benefit of all inferences that can be derived from the facts alleged.” Hettinga v. United States, 14 677 F.3d 471, 476 (D.C. Cir. 2012) (internal quotations omitted). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court accept the plaintiff’s legal conclusions. Id. (citing Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)). B. Plaintiffs Failed to Adequately Plead Alter-Ego Liability “It is a general principle of corporate law deeply ingrained in our economic and legal systems that a parent corporation . . . is not liable for the acts of its subsidiaries.” United States v. Bestfoods, 524 U.S. 51, 61 (1998) (quoting William O. Douglas & Carrol M. Shanks, Insulation from Liability Through Subsidiary Corporations, 39 YALE L.J. 193 (1929)) (internal quotation marks omitted); see also Anderson v. Abbott, 321 U.S. 349, 362 (1944) (“Limited liability is the rule, not the exception”). Only “when the incentive value of limited liability is outweighed by the competing value of basic fairness to parties,” may a court “pierce the corporate veil” and hold a parent corporation liable for its subsidiary’s actions. Labadie Coal Co. v. Black, 672 F.2d 92, 96 (D.C. Cir. 1982). Veil-piercing is an extraordinary procedure that courts should not use lightly, and only extreme circumstances call for disregard of corporate form. Schattner v. Girard, 668 F.2d 1366, 1370 (D.C. Cir. 1981). In the District of Columbia, the corporate entity usually will be respected, but a party “may be permitted to pierce the corporate veil upon proof[] that there is (1) unity of ownership and interest, and (2) use of the corporate form to perpetrate fraud or wrong, or other considerations of justice and equity justify it.” Lopes v. JetSetDC, LLC, 994 F. Supp. 2d 135, 146 (D.D.C. 2014) (quoting McWilliams Ballard, Inc. v. Broadway Mgmt. Co., Inc., 636 F. 15 Supp. 2d 1, 8 (D.D.C. 2009)). 11 The D.C. Circuit therefore has found piercing the veil to be justified when “the corporation, rather than being a distinct, responsible entity, is in fact the alter ego or business conduit of the person [or corporation] in control.” Labadie Coal Co. v. Black, 672 F.2d at 97; see also United States ex rel. Hockett v. Columbia/HCA Healthcare Gr., 498 F. Supp. 2d 25, 60 (D.D.C. 2007) (quoting AGS Int’l Servs. v. Newmont USA Ltd., 346 F. Supp. 2d 64, 89 (D.D.C. 2004) (“A court can pierce the veil between the parent and subsidiary only where the parent ‘so dominated the subsidiary corporation as to negate its separate personality.’”). Under this test, “courts generally inquire as to ‘whether corporate formalities have been observed; whether there has been commingling of corporate and shareholder funds, staff and property; whether a single shareholder dominates the corporation; whether the corporation is adequately capitalized; and, especially, whether the corporate form has been used to effectuate a fraud.’” Lopes v. JetSetDC, LLC, 994 F. Supp. 2d at 147 (quoting Ruffin v. New Destination, LLC, 773 F. Supp. 2d 34, 41 (D.D.C. 2011)). The plaintiffs’ factual allegations are almost exclusively focused on an alleged scheme between the TRNC and HSBC A.Ş., a Turkish bank operating in northern Cyprus, to control and profit from the plaintiffs’ property in northern Cyprus. See, e.g., Compl. ¶ 9 (“HSBC operates at least three branches in the TRNC that are transacting business and knowingly support, aid and assist the TRNC to deprive or interfere with the rights to property 11 The parties both assume that District of Columbia law governs, and this Court will “proceed on the same assumption.” Maljack Prods., Inc. v. Motion Picture Ass’n of Am., Inc., 52 F.3d 373, 375 (D.C. Cir. 1995); see also Riley v. BMO Harris Bank, N.A., 2014 WL 3725341, at *4 n.4 (D.D.C. July 29, 2014) (“[T]he parties agree about the law to be applied in evaluating this motion and the Court shall respect that agreement”); Doe v. De Amigos, LLC, 987 F. Supp. 2d 12, 15-16 (D.D.C. 2013) (explaining that “courts need not address choice of law questions sua sponte” and “apply[ing] District of Columbia substantive law since both parties agree that District of Columbia substantive law governs”). 16 belonging to the Plaintiffs and the Class via London and Washington, DC”); id. ¶ 52 (“The TRNC is also aided and supported by businesses and banking institutions like HSBC and REMAX realtors in financing, marketing and selling properties in the north of Cyprus belonging to Plaintiffs and the Class”). The plaintiffs thus seek to hold the HSBC defendants liable for the alleged actions of HSBC A.Ş. – not a defendant in this case – by piercing the corporate veil. See Compl. ¶ 8 (“The HSBC banks in the TRNC controlled region are managed and directed by the parent engaged in the illegal conduct”); Pls. HSBC Opp. at 16 (“There is no doubt that HSBC will be continuing its illegal operations with impunity if allowed[;] therefore piercing the veil of HSBC is allowable under the circumstances in this matter”). The plaintiffs, however, have failed to adequately plead facts supporting their argument that piercing the corporate veil is warranted in this case. To justify piercing the corporate veil, the plaintiffs allege that: (1) HSBC Holdings exercises control over its subsidiaries and manages their affairs and daily operations relating to the “fraudulent property scheme”; (2) the HSBC banks in the TRNC are managed and directed by HSBC Holdings; and (3) “[t]he exclusive control and direction of the acts complained of . . . occur from a common management and board of directors regardless of location and specifically involve London, Washington DC and the TRNC controlled north of Cyprus.” Compl. ¶¶ 8-9. In support of these allegations, however, the plaintiffs again offer only conclusory statements in place of factual allegations. See, e.g., id. ¶ 8 (“There is no separation between the subsidiaries and the parent. HSBC with common management and direction associated in the illegal enterprise[,] exercises control over the subsidiaries and manages the affairs and day to day operations as it relates to the fraudulent property scheme involved in the 17 north of Cyprus through the TRNC . . .”). These bare recitations of the requirements for alter- ego liability fail to plausibly allege that the HSBC defendants do not maintain separate identities or that the failure to hold the HSBC defendants liable would “sanction a fraud, promote justice, or lead to an evasion of legal obligations.” Bufco Corp. v. NLRB., 147 F.3d 964, 969 (D.C. Cir. 1998); see also Bell Atlantic Corp. v. Twombly, 550 U.S. at 555 (A plaintiff’s obligation to state a claim “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do . . .”). C. Plaintiffs Failed to Adequately Plead Alternative Forms of Liability Generally, a plaintiff cannot satisfy the minimum pleading requirements under Rule 8 of the Federal Rules of Civil Procedure by “lumping all the defendants together in each claim and providing no factual basis to distinguish their conduct.” Atuahene v. City of Hartford, 10 Fed. Appx. 33, 34 (2d Cir. 2001); accord Melegrito v. CitiMortgage Inc., 2011 WL 2197534, at *6 (N.D. Cal. June 6, 2011) (“Under Rule 8(a), grouping multiple defendants together in a broad allegation is insufficient to provide the defendants with fair notice of the claims against them and the grounds for relief”); Bates v. Nw. Human Servs., Inc., 466 F. Supp. 2d 69, 85 (D.D.C. 2006) (dismissing plaintiffs’ RICO claim for, inter alia, “generally neglect[ing] to distinguish between the defendants when describing the factual underpinnings of the complaint”). Instead, a plaintiff must provide each defendant with “fair notice of each claim and its basis.” Caldwell v. Argosy Univ., 797 F. Supp. 2d 25, 27 (D.D.C. 2011) (quoting Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1118 (D.C. Cir. 2000)). The plaintiffs allege “independent liability for each HSBC entity” on the basis of “its involvement in illegal transactions to and from the occupied territory and ‘TRNC’ and from 18 there to and from London and Washington DC.” Pls. HSBC Opp. at 1 n.3; see also id. at 12 (“HSBC ignores that it is liable for its own failures to supervise and prohibit such illegal transactions”). But the plaintiffs fail to distinguish between each entity, simply referring to all HSBC defendants collectively throughout the complaint and their briefing. See Compl. ¶ 8 (“hereinafter all HSBC institutions mentioned are collectively referred to as ‘HSBC’”); Pls. HSBC Opp. at 1 n.3 (“For the purposes of this Opposition, HSBC USA (subsidiary), and HSBC Holdings, PLC (parent) will be considered one and the same”). The claims against the HSBC defendants do not even distinguish between the TRNC and the HSBC defendants. See, e.g., Compl. ¶ 86 (“The Defendants, jointly and individually, did willfully and without right forcibly intrude on the property, personal and realty, of the Plaintiffs and the Class”). It therefore is impossible for the Court or the defendants to determine what factual allegations pertain to HSBC A.Ş., the Turkish subsidiary, HSBC U.S.A., HSBC Group, or HSBC Holdings. Consequently, plaintiffs’ claims under alternative theories of liability, if any, fail to provide fair notice to the HSBC defendants and will be dismissed for failure to comply with Rule 8 of the Federal Rules of Civil Procedure. 12 III. PLAINTIFFS’ MOTION FOR LEAVE TO AMEND Under Rule 15 of the Federal Rules of Civil Procedure, the Court “will freely give leave [to amend a complaint] when justice so requires,” FED. R. CIV. P. 15(a)(2), and “[i]t is common ground that Rule 15 embodies a generally favorable policy toward amendments.” 12 The HSBC defendants also argue that HSBC Group is a fictional entity and thus lacks the capacity to be sued. The plaintiffs appear to have conceded this point because HSBC Group is removed as a defendant in the proposed third amended complaint. Mot. to Amend Ex. 1. The Court does not reach this argument, however, because the complaint fails to comply with Rule 8 of the Federal Rules of Civil Procedure. 19 Howard v. Gutierrez, 237 F.R.D. 310, 312 (D.D.C. 2006) (quoting Davis v. Liberty Mut. Ins. Co., 871 F.2d 1134, 1136-37 (D.C. Cir. 1989)). Leave may be denied, however, due to “undue delay, bad faith, undue prejudice to the opposing party, repeated failure to cure deficiencies, or futility.” Richardson v. United States, 193 F.3d 545, 548-49 (D.C. Cir. 1999) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). Where the proposed amendment would not survive a motion to dismiss or motion for judgment on the pleadings, leave may be denied on the grounds of futility. See Willoughby v. Potomac Elec. Power Co., 100 F.3d 999, 1003 (D.C. Cir. 1996); Elliott v. Fed. Bureau of Prisons, 521 F. Supp. 2d 41, 49 (D.D.C. 2007); Black v. Nat’l Football League Players Ass’n, 87 F. Supp. 2d 1, 6 (D.D.C. 2000). The proposed third amended complaint would (1) join 758 individual plaintiffs “seek[ing] redress of claims based on the same conduct, transactions and occurrences . . . in Plaintiffs’ prior pleadings,” Pls. Mot. to Amend at 1, and (2) add claims for common law fraud and trespass to chattel. Id. Ex. 1 ¶¶ 138, 143. The amendments, however, cure none of the jurisdictional defects regarding the TRNC, compare Compl. ¶ 2 with Pls. Mot. to Amend Ex. 1 ¶ 2, do not plead additional facts to state a claim against the HSBC defendants, and still do not distinguish among the individual HSBC defendants. See Pls. Mot. to Amend. Ex. 1 ¶ 12. The proposed amendments therefore “would not alter this Court’s analysis in any way, and thus would be futile.” Sierra Club v. U.S. Army Corps. of Eng’rs, 2014 WL 4066256, at *5 n.5 (D.D.C. Aug. 18, 2014). Accordingly, the plaintiffs’ motion for leave to file an amended complaint is denied. 20 IV. CONCLUSION For the foregoing reasons, the Court issued an Order on September 30, 2014, granting both the TRNC’s and the HSBC defendants’ motions to dismiss. The Court also denied the plaintiffs’ motion for leave to amend. As there are no remaining defendants, the Court dismissed this action with prejudice. SO ORDERED. /s/________________________ PAUL L. FRIEDMAN United States District Court DATE: October 9, 2014 21

01-03-2023

10-09-2014

https://www.courtlistener.com/api/rest/v3/opinions/3182973/

J-S18009-16 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. DONNA CAROL ARNDT, Appellant No. 1410 MDA 2015 Appeal from the PCRA Order August 10, 2015 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0001784-2014 BEFORE: BOWES, LAZARUS AND STRASSBURGER,* JJ. MEMORANDUM BY BOWES, J.: FILED MARCH 04, 2016 Donna Carol Arndt appeals from the order of the Lancaster County Court of Common Pleas denying her PCRA petition. We affirm. On June 19, 2014, Appellant, represented by counsel, pled guilty to the criminal charge of driving under the influence of a controlled substance pursuant to 75 Pa.C.S. § 3802(d)(2), and a summary offense for violating duties at stop sign pursuant to 75 Pa.C.S. § 3323(b). The charges arose from a traffic stop on November 26, 2013. Appellant, while driving her white Ford truck, was observed by law enforcement drifting into the center of the road before failing to stop properly at a stop sign. Following the stop, the officer noticed Appellant had slurred speech, was unable to * Retired Senior Judge assigned to the Superior Court. J-S18009-16 communicate, and was confused as to what was happening. Appellant admitted to taking Clonazepam and heroin prior to operating her vehicle. A later test revealed Appellant had drugs in her system. Concurrent with her plea, Appellant completed a written guilty plea colloquy and the court conducted an oral plea colloquy.1 In the written colloquy, Appellant acknowledged, inter alia, she understood her rights regarding post-sentence motions and direct appeal. At that time, Appellant was sentenced to seventy-two hours to six months incarceration, fines, and costs. Appellant was released on parole the same day. Appellant did not file a post-sentence motion or a direct appeal. In December 2014, Appellant sought the aid of the public defender’s office. On January 1, 2015 a counseled PCRA petition seeking reinstatement of Appellant’s direct appeal rights was filed. A hearing on Appellant’s petition was held on March 11, 2015. At the hearing, counsel testified that Appellant contacted him after the ten-day period for filing a motion to withdraw her guilty plea and expressed dissatisfaction with her guilty plea. While the call was made within thirty days of the judgment of sentence, an appeal would have been futile since no motion was filed, and any claim that Appellant’s plea was invalid would not have been preserved for purposes of appeal. The court denied Appellant PCRA relief. ____________________________________________ 1 That colloquy was not transcribed. -2- J-S18009-16 Appellant filed this timely notice of appeal on August 17, 2015. At the time of her appeal, Appellant was incarcerated in Lancaster County prison for violating the terms of her parole. She served the balance of her maximum sentence and was released on September 1, 2015. Trial Court Opinion, 10/9/15, at 2. Appellant raises one issue for our consideration, contending: “The PCRA Court erred by failing to find counsel was ineffective for failing to file a direct appeal.” Appellant’s brief at 4. Prior to addressing the issue raised, we must first determine whether Appellant is eligible for relief under the PCRA. Eligibility for relief under the PCRA is governed by 42 Pa.C.S. § 9543, which provides in pertinent part: (a) General Rule.—To be eligible for relief under this subchapter, the petitioner must plead and prove by a preponderance of the evidence all of the following: (1) That the petitioner has been convicted of a crime under the laws of this Commonwealth and is at the time relief is granted: (i) Currently serving a sentence of imprisonment, probation or parole for the crime; (ii) Awaiting execution of a sentence of death for the crime; or (iii) Serving a sentence which must expire before the person may commence serving the disputed sentence. 42 Pa.C.S. § 9543(a). We observe, “[e]ligibility for relief under the PCRA is dependent upon the petitioner currently serving a sentence of imprisonment, probation, or -3- J-S18009-16 parole for a crime.” Commonwealth v. Turner, 80 A.3d 754, 761-62 (Pa. 2013). As such, “the denial of relief for a petitioner who has finished serving his sentence is required by the plain language of the statute.” Commonwealth v. Ahlborn, 699 A.2d 718, 720 (Pa. 1997). Here, the record indicates that Appellant completed serving her sentence on September 1, 2015. Because Appellant is no longer serving a sentence of imprisonment, probation, or parole for the crime, she is ineligible for PCRA relief. 42 Pa.C.S. § 9543(a)(1)(i); Turner, supra; Ahlborn, supra. As Appellant is ineligible for PCRA relief, we need not reach the merits of her claim. Accordingly, we affirm. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 3/4/2016 -4- J-S18009-16 -5-

01-03-2023

03-04-2016

https://www.courtlistener.com/api/rest/v3/opinions/4539901/

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, ) No. 79846-4 ) Respondent, ) DIVISION ONE ) v. ) ) MATTHIE, ANDREW EARL, ) UNPUBLISHED OPINION DOB: 11/15/1987, ) ) Appellant. ) BOWMAN, J. — A jury convicted Andrew Earl Matthie of sex crimes involving a minor. The trial court imposed a standard-range indeterminate sentence and lifetime crime-related community custody conditions, including a requirement that Matthie disclose his sex offender status prior to any sexual contact. Matthie argues this prohibition is superfluous to his other community custody conditions and therefore not necessary to accomplish the needs of the State. Because the condition serves legitimate government interests beyond those of Matthie’s other community custody conditions, we affirm. FACTS A jury convicted Matthie of one count of first degree rape of a child and one count of first degree child molestation. The convictions arose from an incident in which Matthie sexually molested the 10-year-old daughter of his family friend and landlord. The court imposed a standard-range indeterminate sentence Citations and pin cites are based on the Westlaw online version of the cited material. No. 79846-4-I/2 of 93 months to life. At sentencing, the State requested several crime-related community custody conditions designed to limit Matthie’s unsupervised contact with minors. One of the conditions read: Do not date women nor form relationships with families who have minor children, as directed by the supervising Community Corrections Officer. Disclose sex offender status prior to any sexual contact. Sexual contact in a relationship is prohibited until the treatment provider/Community Corrections Officer approves of such. Matthie objected to the requirement that he seek approval of the Department of Corrections (DOC) before engaging in sexual activity. Defense counsel argued: Mr. Matthie’s going to be on lifetime supervision, so at some point, and Your Honor, it’s likely he’s going to complete the treatment program while at DOC, but since he’s going to be on lifetime probation I think in particular considering that this offense does not involve adults, I don’t believe that DOC should have the discretion for the rest of his life to tell him whether or not he can engage in sexual activity with somebody who’s aware that he’s a sex offender and who doesn’t have minor children. The trial court agreed with defense and did not require that Matthie seek approval by a treatment provider or DOC before sexual contact. Instead, the court ordered several lifetime community custody conditions, including that Matthie cannot “initiate or prolong contact with minor children” unless supervised by an adult with knowledge of the offense; that he cannot “date women nor form relationships with families who have minor children, as directed by the supervising Community Corrections Officer”; that he cannot “remain overnight in a residence where minor children live or are spending the night”; and that he must “[d]isclose sex offender status prior to any sexual contact.” 2 No. 79846-4-I/3 ANALYSIS Matthie challenges the community custody condition requiring him to disclose his sex offender status prior to sexual contact with adult partners. A sentencing court may impose crime-related prohibitions as conditions of community custody. RCW 9.94A.703(3)(f); State v. Padilla, 190 Wn.2d 672, 682, 416 P.3d 712 (2018). A crime-related prohibition “directly relates to the circumstances of the crime for which the offender has been convicted.” RCW 9.94A.030(10). However, “[t]here is no requirement that the condition be factually identical to the crime. If there is a reasonable basis for the condition, the court will uphold it.” Padilla, 190 Wn.2d at 683.1 We review community custody conditions for abuse of discretion and will reverse only if they are manifestly unreasonable. Padilla, 190 Wn.2d at 677. Conditions “are usually upheld if reasonably crime related.” State v. Warren, 165 Wn.2d 17, 32, 195 P.3d 940 (2008). An unconstitutional condition is an abuse of discretion. Padilla, 190 Wn.2d at 677. Community custody conditions that require an offender to speak implicate the First Amendment to the United States Constitution through the compelled speech doctrine. State v. K.H.-H., 185 Wn.2d 745, 748-49, 374 P.3d 1141 (2016). Conditions that interfere with fundamental constitutional rights must be both “reasonably necessary to accomplish the essential needs of the State” and “sensitively imposed.” Warren, 165 Wn.2d at 32. Matthie does not question the court’s authority to restrict his relationships 1 Citation omitted. 3 No. 79846-4-I/4 with adults. See State v. Autrey, 136 Wn. App. 460, 468, 150 P.3d 580 (2006). Nor does he dispute that the contested community custody condition is crime related. Instead, he argues that the requirement to disclose his sex offender status prior to sexual contact is superfluous and, therefore, not reasonably necessary to accomplish the needs of the State or sensitively imposed.2 We disagree. Several of Matthie’s community custody conditions limit his contact with children. These include prohibitions on seeking employment or volunteer positions involving minors, attending restaurants or church services that cater to minors, and visiting parks and facilities that regularly host youth activities. The conditions also prohibit Matthie from remaining overnight in a residence with minor children as well as dating women or forming relationships with families with children. Matthie contends these conditions that restrict his “dating and social relationships and the places he may remain overnight . . . mean that his social and intimate associations with other adults will never place him in proximity to children.” But the requirement that Matthie inform his sexual partners of his offender status serves a purpose beyond those of the other community custody conditions. It provides notice to potential romantic partners who do not have 2 The State argues we should decline to reach this issue under the invited error doctrine. The invited error doctrine prevents a party from setting up an error at trial and then contesting it on appeal. State v. Henderson, 114 Wn.2d 867, 870, 792 P.2d 514 (1990). However, invited error does not preclude review where the trial court exceeded its sentencing authority: Even where a defendant clearly invited the challenged sentence by participating in a plea agreement, to the extent that he can show that the sentencing court exceeded its statutory authority, the invited error doctrine will not preclude appellate review. State v. Mercado, 181 Wn. App. 624, 631, 326 P.3d 154 (2014). Because Matthie claims the sentencing court exceeded its authority by imposing an unlawful community custody condition, we will review the claim. 4 No. 79846-4-I/5 children of their own but may have relationships that would provide Matthie access to minors. For example, the disclosure requirement provides notice to partners who may be responsible for the safety of live-in or visiting minors and minors who are present in the home but not remaining overnight. The condition is also the only affirmative requirement that Matthie put potential romantic partners on notice that they may need to take steps to protect minors in their care. Indeed, defense counsel stressed the importance of knowledge of Matthie’s sex offender status when he argued against the requirement that Matthie obtain permission from DOC prior to engaging in sexual activity. He reasoned that DOC should not have discretion to tell Matthie “whether or not he can engage in sexual activity with somebody who’s aware that he’s a sex offender and who doesn’t have minor children.” The requirement that Matthie inform potential romantic partners of his offender status was not superfluous, was reasonably necessary to accomplish the legitimate state interest of preventing sex offenses against minors, and was sensitively imposed. The community custody condition is affirmed. WE CONCUR: 5

01-03-2023

06-08-2020

https://www.courtlistener.com/api/rest/v3/opinions/7433291/

Appeals dismissed without opinion. 218 So.2d 203.

01-03-2023

07-29-2022

https://www.courtlistener.com/api/rest/v3/opinions/125926/

537 U.S. 1090 EDWARDSv.NEW JERSEY. No. 02-6824. Supreme Court of United States. December 16, 2002. 1 CERTIORARI TO THE SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION. 2 Super. Ct. N. J., App. Div. Certiorari denied.

01-03-2023

04-28-2010

https://www.courtlistener.com/api/rest/v3/opinions/2959245/

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-15-00150-CV In re Cunningham Constructors & Associates, Inc. ORIGINAL PROCEEDING FROM WILLIAMSON COUNTY MEMORANDUM OPINION Relator Cunningham Constructors & Associates, Inc. has filed a petition for writ of mandamus challenging the trial court’s order transferring venue of its suit against the real party in interest, Atlas Electric of West Texas, LLC. See Tex. R. App. P. 52.8. Having reviewed relator’s filings, the responses, and the record provided, we deny relator’s petition for mandamus relief. See id. R. 52.8(a). __________________________________________ Cindy Olson Bourland, Justice Before Justices Puryear, Pemberton, and Bourland Filed: May 1, 2015

01-03-2023

09-17-2015

https://www.courtlistener.com/api/rest/v3/opinions/4278616/

J-S13035-18 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : AKANINYENE EFIONG AKAN, : : Appellant : No. 1405 WDA 2017 Appeal from the Order Dated September 6, 2017 in the Court of Common Pleas of Allegheny County, Criminal Division at No(s): CP-02-CR-0001844-2011 BEFORE: GANTMAN, P.J., SHOGAN, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.: FILED MAY 25, 2018 Akaninyene Efiong Akan (“Akan”) appeals, pro se, from the Order denying his “Motion for Admission to the Illegality of the Sentence Administered on 6/26/2012.”1 We vacate and remand. ____________________________________________ 1 Any petition or motion filed after the judgment of sentence becomes final will be treated as a petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. See Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011). Indeed, the PCRA is the sole means of obtaining collateral relief, and subsumes all other remedies where the PCRA provides a remedy for the claim. See 42 Pa.C.S.A. § 9542 (providing that a PCRA petition is the “sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purpose that exist when it takes effect, including habeas corpus and coram nobis.”). In his Motion, Akan challenges the legality of his sentence and argues that he did not receive credit for time served for his pre-trial time in prison. See Commonwealth v. Beck, 848 A.2d 987, 989 (Pa. Super. 2004) (stating that collateral challenge to legality of sentence for failure to award credit for time served prior to sentencing must be brought under the PCRA). Because Akan filed his Motion after his judgment of sentence became final, and the PCRA provides a remedy for his claims, the Motion should have been treated as a PCRA Petition. J-S13035-18 Following a jury trial, Akan was found guilty of burglary, rape, involuntary deviate sexual intercourse, sexual assault, indecent assault, terroristic threats, unlawful restraint, and simple assault. The trial court sentenced Akan to an aggregate prison term of 32 to 80 years. This Court affirmed the judgment of sentence on November 25, 2013, and the Supreme Court of Pennsylvania denied Akan’s Petition for Allowance of Appeal on May 30, 2014. See Commonwealth v. Akan, 91 A.3d 1295 (Pa. Super. 2013) (unpublished memorandum), appeal denied, 93 A.3d 461 (Pa. 2014). Akan filed a timely first PCRA Petition on October 17, 2014. The PCRA court appointed Akan counsel, who subsequently filed a Petition to Withdraw pursuant to Turner/Finley.2 Subsequently, the PCRA court dismissed the Petition. This Court affirmed the Order, and the Supreme Court of Pennsylvania denied Akan’s Petition for Allowance of Appeal. See Commonwealth v. Akan, 141 A.3d 583 (Pa. Super. 2016) (unpublished memorandum), appeal denied, 157 A.3d 478 (Pa. 2016). On October 19, 2016, Akan, pro se, filed his second PCRA Petition. While his second Petition was pending, Akan filed, inter alia, the instant “Motion for Admission to the Illegality of the Sentence Administered on 6/26/2012” on January 4, 2017. On June 8, 2017, the PCRA court dismissed Akan’s second ____________________________________________ 2Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). -2- J-S13035-18 PCRA Petition without a hearing. Akan filed a timely Notice of Appeal from the dismissal of his second Petition, which was docketed at 928 WDA 2017.3 While that appeal was pending, the PCRA court denied Akan’s “Motion for Admission to the Illegality of the Sentence Administered on 6/26/2012” on September 6, 2017. Thereafter, Akan filed a timely Notice of Appeal from this denial. Initially, as noted above, Akan’s “Motion for Admission to the Illegality of the Sentence Administered on 6/26/2012” should have been treated as a Petition filed pursuant to the PCRA. It is well-settled that a PCRA court “cannot entertain a new PCRA petition[,] when a prior petition is still under review on appeal[.]” Commonwealth v. Porter, 35 A.3d 4, 14 (Pa. 2012); see also Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000) (noting that “when an appellant’s PCRA appeal is pending before a court, a subsequent PCRA petition cannot be filed until the resolution of review of the pending PCRA petition by the highest state court in which review is sought, or upon the expiration of the time for seeking such review.”). Thus, “as matter of jurisdiction, [the] PCRA court cannot entertain new PCRA claims or new PCRA petition when prior petition is still under review on appeal.” Commonwealth v. Ali, 10 A.3d 282, 320 n.33 (Pa. 2010) (citing Lark, supra). ____________________________________________ 3 The appeal is currently pending before this Court. -3- J-S13035-18 Here, at the time the PCRA court denied Akan’s “Motion for Admission to the Illegality of the Sentence Administered on 6/26/2012,” an appeal was pending from the dismissal of Akan’s second PCRA Petition at 928 WDA 2017. Thus, under Pennsylvania law, the PCRA court lacked jurisdiction to entertain the new PCRA Petition. See Porter, supra; Lark, supra.4 Accordingly, we vacate the PCRA court’s Order and remand the case to the PCRA court to dismiss the “Motion for Admission to the Illegality of the Sentence Administered on 6/26/2012” as premature. Order vacated. Case remanded. Jurisdiction relinquished. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 5/25/2018 ____________________________________________ 4 We note that this Court recently considered whether a PCRA court has jurisdiction to address a PCRA petition despite the pendency of another petition in the PCRA court. See Commonwealth v. Montgomery, 2018 PA Super 54 (Pa. Super. 2018) (en banc). In Montgomery, this Court held that “PCRA courts are not jurisdictionally barred from considering multiple PCRA petitions relating to the same judgment of sentence at the same time unless the PCRA court’s order regarding a previously filed petition is on appeal and, therefore, not yet final.” Montgomery, 2018 PA Super 54 at *4 (emphasis added); see also id. (stating that “nothing bars a PCRA court from considering a subsequent petition, even if a prior petition is pending, so long as the petition is not under appellate review.”). However, unlike Montgomery, an appeal was pending at the time the “Motion for Admission to the Illegality of the Sentence Administered on 6/26/2012” was decided. -4-

01-03-2023

05-25-2018

https://www.courtlistener.com/api/rest/v3/opinions/125950/

537 U.S. 1092 FRANKLINv.BOCK, WARDEN. No. 02-7003. Supreme Court of United States. December 16, 2002. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT. 2 C. A. 6th Cir. Certiorari denied.

01-03-2023

04-28-2010

https://www.courtlistener.com/api/rest/v3/opinions/2882937/

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-05-00278-CR ______________________________ BRADWICK LEVERT HOLT, Appellant   V.   THE STATE OF TEXAS, Appellee                                                On Appeal from the County Court Lamar County, Texas Trial Court No. 49474                                                   Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION             A jury convicted Bradwick Levert Holt of failure to identify, fugitive from justice. See Tex. Pen. Code Ann. § 38.02 (Vernon Supp. 2005). As charged in this case, that offense is a Class B misdemeanor. See id. The trial court assessed Holt's punishment at sixty days' confinement in the county jail and no fine. The court imposed Holt's sentence September 7, 2005. Holt timely filed a motion for new trial October 5, 2005. Holt filed his notice of appeal December 19, 2005.             To perfect an appeal in a criminal case, the notice of appeal must be filed "within 90 days after the day sentence is imposed or suspended in open court if the defendant timely files a motion for new trial." Tex. R. App. P. 26.2. Holt's notice of appeal was not filed until 103 days after the date on which the trial court imposed Holt's sentence. Holt's notice of appeal was, therefore, untimely by thirteen days, and it cannot serve to invoke this Court's jurisdiction.             Accordingly, we dismiss the appeal for want of jurisdiction.                                                                                       Josh R. Morriss, III                                                                                     Chief Justice Date Submitted:          January 30, 2006 Date Decided:             January 31, 2006 Do Not Publish 2" SemiHidden="false" UnhideWhenUsed="false" Name="Light Grid Accent 1"/>                   In The   Court of Appeals                         Sixth Appellate District of Texas at Texarkana                                                   ______________________________                                                                No. 06-10-00042-CR                                                 ______________________________                                   CALVIN WAYNE BURNHAM, Appellant                                                                   V.                                        THE STATE OF TEXAS, Appellee                                                                                                                                                   On Appeal from the 123rd Judicial District Court                                                              Panola County, Texas                                                        Trial Court No. 2005-C-0005                                                                                                                                                       Before Morriss, C.J., Carter and Moseley, JJ.                                               Memorandum Opinion by Justice Carter                                                      MEMORANDUM  OPINION               Calvin Wayne Burnham appeals from his convictions by the trial court on four charges of aggravated sexual assault of a child and four charges of indecency with a child.  Burnham has filed a single brief, in which he raises issues common to all of his appeals.[1]  He argues that the trial court committed reversible error in considering evidence from a previous revocation hearing when granting the State’s second amended motion to adjudicate guilt and in admitting the results of a polygraph examination.  Burnham also complains that the evidence was insufficient to establish that he violated any conditions of his community supervision.             We addressed these issues in detail in our opinion of this date on Burnham’s appeal in cause number 06-10-00038-CR.  For the reasons stated therein, we likewise conclude that reversible error has not been shown in this case.             We affirm the trial court’s judgment.                                                                             Jack Carter                                                                         Justice   Date Submitted:          December 14, 2010 Date Decided:             December 15, 2010   Do Not Publish [1]Burnham appeals from four convictions of aggravated sexual assault of a child and four convictions of indecency with a child, cause numbers 06-10-00038-CR through 06-10-00045-CR.

01-03-2023

09-07-2015

https://www.courtlistener.com/api/rest/v3/opinions/3048261/

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 09-2521 ___________ United States of America, * * Plaintiff - Appellee, * * Appeal from the United States v. * District Court for the Southern * District of Iowa. Michael Anthony Dock, * * [UNPUBLISHED] Defendant - Appellant. * ___________ Submitted: January 13, 2010 Filed: January 19, 2010 ___________ Before MURPHY and BYE, Circuit Judges, and STROM,1 District Judge. ___________ PER CURIAM. Michael Dock was convicted of possessing an unregistered sawed off shotgun in violation of the National Firearms Act. 26 U.S.C. § 5861(d). The district court2 sentenced him to 51 months imprisonment. Dock contends on appeal that the court erred by denying his motion to dismiss under the Speedy Trial Act and by refusing to 1 The Honorable Lyle E. Strom, United States District Judge for the District of Nebraska, sitting by designation. 2 The Honorable James E. Gritzner, United States District Judge for the Southern District of Iowa. suppress evidence. He also challenges the sufficiency of the evidence underlying his conviction. We affirm. In the context of a Speedy Trial Act claim, we review the district court's findings of fact for clear error and its legal conclusions de novo. United States v. Titlbach, 339 F.3d 692, 698 (8th Cir. 2003). The periods of delay Dock complains of resulted primarily from continuances and other pretrial motions sought by his own counsel and are excludable under the act. See 18 U.S.C. § 3161; United States v. Yerkes, 345 F.3d 558, 561 (8th Cir. 2003). The remaining period of delay was caused by Dock's failure to return to a halfway house and subsequent arrest on state robbery charges, also excludable under the act. 18 U.S.C. § 3161(h)(1), (3)(A). The district court did not err by denying Dock's motion for dismissal. Dock argues that the district court erred by denying his motion to suppress the shotgun and his statements to police. Dock asserts that the shotgun was seized as the result of an illegal stop and that the arresting officers failed to give him a Miranda warning. On appeal from the denial of a motion to suppress, we review the district court's factual findings for clear error and its legal conclusions de novo. United States v. El-Alamin, 574 F.3d 915, 923 (8th Cir. 2009). The record shows that officers attempted to pull over a vehicle driven by Dock after observing him driving erratically. Dock refused to pull over and jumped from the vehicle while it was still moving. A footchase ensued and Dock was apprehended. A passenger who also fled the vehicle was not caught. After Dock was secured, Officer Michael Demoss discovered the sawed off shotgun in the front seat of the vehicle. The butt of the gun was in the driver's footwell, while the barrel pointed over to the passenger's side. The district court denied Dock's motion to suppress the shotgun on the basis that the gun was lawfully seized under the plain view exception to the warrant requirement. The plain view exception “allows a police officer to seize evidence without a warrant when (1) the officer did not violate the Fourth Amendment in -2- arriving at the place from which the evidence could be plainly viewed, (2) the object’s incriminating character is immediately apparent, and (3) the officer has a lawful right of access to the object itself.” United States v. Abumayyaleh, 530 F.3d 641, 648–49 (8th Cir. 2008); see also United States v. Bynum, 508 F.3d 1134, 1137 (8th Cir. 2007) (“[n]either probable cause nor reasonable suspicion is necessary for an officer to look through a window (or open door) of a vehicle so long as he or she has a right to be in close proximity to the vehicle.”). Based on his observation of Dock’s erratic driving, the hit and run accident, and his attempt to flee, Officer Demoss had a lawful basis for his presence near the vehicle. Dock left the door of his vehicle open when he fled the police so Demoss had a clear view of the front seat. The sawed off shotgun’s incriminating nature was immediately apparent and admissible under the plain view doctrine. The district court did not err in denying Dock’s motion to suppress. We also reject Dock's argument with respect to his Miranda warnings. The two arresting officers testified that Dock was advised of his Miranda rights before questioning. The district court credited the officers' testimony, and we defer to the court's finding on credibility. United States v. Lockett, 393 F.3d 834, 837–38 (8th Cir. 2005). Given the officers' testimony, the court's finding that Dock received Miranda warnings before questioning is not clearly erroneous. United States v. Terry, 400 F.3d 575, 579 (8th Cir. 2005). Dock's statements were not obtained in violation of Miranda. Finally Dock asserts that there was insufficient evidence to prove that he possessed the unregistered sawed off shotgun. The scope of our review is quite limited when considering the sufficiency of the evidence underlying a jury verdict. We will uphold the verdict if "there is any interpretation of the evidence that could lead a reasonable minded jury to find the defendant guilty beyond a reasonable doubt." United States v. Brown, 560 F.3d 754, 769 (8th Cir. 2009). -3- The government presented testimony from the arresting officers, who testified that they discovered the shotgun only minutes after Dock jumped from the vehicle The jury saw photographs of the position of the gun in the vehicle. The jury also heard testimony from Dock's cellmate, who testified that Dock had told him that he knew the shotgun was in the car, that he had used it earlier that night in a robbery, and that he left it in the car when he fled because it was too heavy to carry. Dock challenges the credibility of this testimony, arguing that his cellmate was an unreliable witness. Ultimately, however, the jury appears to have credited the testimony, and it is not our charge on appeal to second guess the jury's credibility determinations. See, e.g., United States v. Wesseh, 531 F.3d 633, 637 (8th Cir. 2008); see also United States v. Bower, 484 F.3d 1021, 1026 (8th Cir. 2007) (we have "repeatedly upheld jury verdicts based solely on the testimony of co-conspirators and cooperating witnesses."); United States v. Williams, 512 F.3d 1040, 1044 (8th Cir. 2008) ("[p]ossession may be actual or constructive and need not be exclusive."). There was sufficient evidence presented for a jury to conclude that Dock possessed the unregistered sawed off shotgun. Accordingly, the judgment of the district court is affirmed. ______________________________ -4-

01-03-2023

10-13-2015

https://www.courtlistener.com/api/rest/v3/opinions/8540615/

La Jueza Asociada Señora Fiol Matta emitió la opinión del Tribunal. ¿Es el Agente Administrador de un inmueble bajo el ré-gimen de propiedad horizontal un mandatario del Consejo de Titulares? Estos recursos consolidados nos brindan la oportunidad de examinar esa relación en toda su compleji-dad y, en particular, la interacción que en ella se da entre los contratos de mandato, trabajo y arrendamiento de servicios. I A. En el primero de los casos ante nuestra considera-ción, el señor Jorge Colón Ortiz suscribió un contrato con el *950Consejo de Titulares del Condominio Borinquen Towers I para prestar servicios remunerados como administrador de dicha comunidad sometida al régimen de propiedad horizontal y de la cual él era condomino. De acuerdo con ese contrato suscrito el 16 de octubre de 1996, el señor Colón Ortiz trabajaría seis horas diarias con un horario fijo de 7:00am a l:00pm y un salario mensual de $650, así como una compensación de $50 mensuales para diligencias ofi-ciales del Condominio. No obstante, de 1996 a 2000, el pe-ticionario trabajó cuarenta horas semanales y devengó un salario de $1,500 mensuales.(1) Por último, el contrato se podría renovar anualmente de manera tácita por un plazo idéntico, “ ‘siempre y cuando [cumpliera] con las reglas y deberes que se le asignfaran]’ ”.(2) Durante los cuatro años que fungió como administrador del Condominio, al señor Colón Ortiz nunca se le amonestó y, en consecuencia, su contrato se renovó automáticamente para los años 1997, 1998 y 1999. Según el contrato, el condominio retuvo “los servicios del Sr. Jorge Colón Ortiz como Administrador” y le asignó, entre otras funciones, “[a]tender todo lo relacionado con el buen gobierno, administración],] vigilancia y funciona-miento del condominio, y en especial, todo lo reía [donado] a las cosas o elementos de uso común y los servicios generales”.(3) Muchos de los deberes y las facultades del *951peticionario especificados en el contrato corresponden a la gestión típica de un agente administrador. No obstante, el Tribunal determinó, como cuestión de hecho, que la posi-ción del demandante no requería el ejercicio de discreción ni tampoco conllevaba la supervisión de empleados.!4) El 17 de mayo de 2000, el peticionario se reportó al Fondo del Seguro del Estado tras sufrir un accidente en el trabajo que se produjo mientras trabajaba con el contene-dor de basura del Condominio. Ese mismo día, la Junta de Directores supo de la determinación del Fondo de ofrecerle al señor Colón Ortiz tratamiento médico en descanso. Luego, el 3 de agosto de 2000, el Fondo ordenó continuar el tratamiento mientras trabajaba. El 17 de octubre de ese año, el peticionario fue dado de alta. Mientras tanto, apenas siete días después del accidente del peticionario, se celebró una asamblea del Consejo de Titulares del Condominio Borinquen Towers I. En esa re-unión se decidió, por unanimidad, no renovar el contrato del señor Colón Ortiz que, casualmente, vencía el 17 de octubre de ese año, día en que el peticionario fue dado de alta. El 15 de noviembre de 2000, el señor Colón Ortiz pre-sentó una demanda ante el Tribunal de Primera Instancia por despido injustificado y violación a la reserva de empleo establecida en el Artículo 5-A de la Ley Núm. 45 de 18 de abril de 1935, según enmendada.!5) En su contestación a la demanda, el Condominio alegó, entre otras defensas, que hubo justa causa para el despido, que no había relación entre el despido y el accidente del señor Colón Ortiz, y que la decisión del Consejo de Titulares de no ratificar al Ad-ministrador fue unánime. En cuanto a las razones para no *952renovar el contrato del peticionario, el Condominio sostuvo que el demandante había cometido múltiples irregularida-des antes de su supuesto accidente.(6) Posteriormente, se alegó que, “[hjabiendo sido el demandante contratado por términos determinados”, no estaba protegido por la Ley Núm. 80 de 30 de mayo de 1976, según enmendada.(7) El 5 de octubre de 2009, el foro de instancia declaró “con lugar” la demanda. Al aquilatar la prueba recibida, con-cluyó que la relación entre el señor Colón Ortiz y el Con-dominio era, como cuestión de hecho, de naturaleza obrero-patronal. Resolvió, además, que el Condominio no logró refutar la presunción de despido injustificado que esta-blece la Ley Núm. 80 y que no cumplió con la reserva de empleo establecida en el Artículo 5-Ade la Ley Núm. 45. El Tribunal de Primera Instancia ordenó el pago de $187,677,65 en concepto de mesada ($4,038.45), licencia de vacaciones y enfermedad ($15,639.20), salarios dejados de percibir entre agosto del 2000 y febrero del 2009 ($153,000.00), y daños ($15,000), así como honorarios de abogados ($10,000). Inconforme con esa decisión, el Condominio recurrió al Tribunal de Apelaciones y alegó, principalmente, que entre el señor Colón Ortiz y el Condominio no había una relación obrero-patronal, por lo que no procedía indemnización al-guna bajo las leyes laborales. El foro apelativo examinó la figura del agente administrador y su interacción con los contratos de mandato, de trabajo y de arrendamiento de servicios. Concluyó que el agente administrador es un mandatario, pues la Ley de Condominios autoriza su des-titución en cualquier momento por la sola voluntad del Consejo de Titulares e impone al Administrador el deber de rendir cuentas al final de su gestión. Resolvió, entonces, que la legislación protectora del trabajo no aplica al agente *953administrador y revocó al Tribunal de Primera Instancia. Para el foro intermedio, el que la relación entre el señor Colón Ortiz y el Condominio fuese de subordinación y se le remunerase por sus servicios no era suficiente para con-cluir que el peticionario realmente era un empleado, pues ambas circunstancias eran compatibles con el contrato de mandato. El señor Colón Ortiz presentó, entonces, su recurso ante este Tribunal y alegó, en esencia, que su vínculo con el Condominio era “una clara relación obrero-patronal”.!8) Se-gún el señor Colón Ortiz, un mandatario se obliga a pres-tar un servicio o efectuar cualquier otra gestión o negocio jurídico a nombre o por encargo de otra, gestión que, aun-que puede ser gratuita o retribuida, se basa en la confianza entre las partes y conlleva un traspaso de autoridad. Sos-tiene, así mismo, que lo esencial del contrato de mandato es la representación, pues ésta permite convertir la ausen-cia real del mandante en presencia jurídica. Así, lo fundamental de dicho contrato es la posibilidad de obrar por cuenta ajena y realizar actos jurídicos en nombre de otro cuya personalidad asume el mandatario.!9) Esta facultad de representación del mandante por el mandatario con-lleva otro elemento esencial al mandato, la discreción para obrar. Sin embargo, el peticionario expone que no ejercía dis-creción alguna en el desempeño de sus labores y, si bien su posición estaba “designada” como “Administrador”, “no es menos cierto que las funciones que ... realizaba para el Condominio eran típicas de un empleado asalariado ...”.(10) Como ejemplo de esto, recalca que el accidente que sufrió en mayo del 2000 se debió a que estaba moviendo un con-tenedor de basura. En otras palabras, el peticionario alega que, independientemente del nombre por el cual se le de-*954signa en su contrato, su realidad cotidiana asemeja su si-tuación más a la de un empleado que a la de un agente administrador. Por último, el peticionario reclama que no debe ser privado de las protecciones de la legislación labo-ral, pues nuestro ordenamiento exige una lectura restric-tiva en contra de la exclusión del trabajador y liberal a favor de la aplicación de sus disposiciones. El 22 de octubre de 2010 expedimos el auto. En su ale-gato, la parte recurrida se reafirma en que el Tribunal de Apelaciones no erró al resolver que el peticionario era un mandatario y que dicha conclusión está en sintonía con la doctrina. B. En el segundo de los casos consolidados, la peticio-naria, señora Yolanda Candelario, trabajó por seis años, hasta el 17 de noviembre de 2004, como Administradora del condominio Playa Dorada, siendo ella una de sus titulares. Como Administradora, la señora Candelario su-pervisaba a la secretaria, así como a la supervisora y a los trabajadores de mantenimiento del condominio; un total de siete personas. También supervisaba al personal contratado para la seguridad, a los contratistas que proveían servicios a la piscina y a la planta de emergencia, así como servicios de jardinería, entre otros.(11) Es decir, “[l]levaba a cabo las funciones de Administradora del Condominio” y se reportaba directamente ante la Junta de Directores.(12) Se-gún fue admitido por el Condominio, la señora Candelario nunca fue objeto de amonestación. Recibía un salario de $1,125 quincenales, del cual se le deducían seguro social y contribuciones. Tenía derecho a quince días por concepto de vacaciones y quince días por licencia de enfermedad, así como un bono de navidad equivalente al 2% de su salario, *955hasta un máximo de $200.(13) Las funciones de la señora Candelario, según descritas por ella, eran “estar a cargo de la oficina, de los empleados, supervisar ... alrededor de ocho (8) empleados, a cargo de todos los suplidores que le daban servicio al condominio, de los condominos, que cuando tuvieran algún problema en sus apartamentos [ella] tenía que ir a inspeccionarlo”/14) lo cual resultaba en que estaba más en el “field” que en su oficina/15) Indicó que, además de seguro social y contribuciones, le hacían descuentos de seguro de choferes, desempleo e incapaci-dad, y que el Condominio le entregaba un formulario W-2 para sus planillas/16) Su horario de trabajo era de 8:00 am a 5:00 pm. Según el Reglamento del Condominio, el Administrador “será nombrado, por el Consejo de Titulares, por mayoría de votos, pudiendo ser una corporación o un individuo para asegurar la administración apropiada del condominio. Igualmente, el Consejo de Titulares [podrá] removerlo de su cargo, también por mayoría de votos”/17) En cuanto a *956sus facultades, el Reglamento también dispone que éstas “podrán ser revocadas, modificadas o ampliadas por el Consejo de Titulares en reunión celebrada al efecto”.(18) En una asamblea celebrada el 14 de noviembre de 2004, el Consejo de Titulares, sin ofrecer explicaciones, destituyó a la señora Candelario de su cargo.(19) En esa misma re-unión se eligió una nueva Junta de Directores que tomó posesión pocos días después. En ausencia de su Presidente, quien se encontraba fuera del país, la Junta saliente se reunió y tomó “la decisión de autorizar pagos por concepto de mesada, vacaciones, bono y salario a favor de la deman-dada ...”.(20) Estas decisiones de la Junta saliente “fueron acorde con la práctica existente en el Condominio para la toma de posesión de una nueva Junta y la entrega de los asuntos administrativos a ésta”.(21) El desembolso autori-zado por la Junta saliente consistió de las partidas siguien-tes: un cheque por $7,619.77 en concepto de mesada; otro por $1,699.69 en concepto de vacaciones acumuladas; otro cheque por $790.82 también por vacaciones, y un cheque por $184.70 de bono de navidad. El total de los pagos emi-tidos fue de $10,294.98. El 4 de enero de 2005, la nueva Junta de Directores demandó a la señora Candelario en cobro de dinero por $10,412.50.(22) En apoyo a esa demanda, los peticionarios adelantaron varios argumentos. En primer lugar, adujeron que el desembolso autorizado por la Junta saliente era ile-gal pues la señora Candelario “no tenía derecho a los be-*957neficios provistos a los obreros ...”.(23) Es decir, que, por la naturaleza de su cargo y sus funciones, no estaba cubierta por la legislación protectora del trabajo y no era acreedora a pago alguno en concepto de mesada, vacaciones, bono de navidad o salarios adeudados. En segundo lugar, sostuvie-ron que el desembolso de $10,294.98 autorizado por la Junta saliente excede el límite de $5,000 permitido a la Junta en casos de transacciones extrajudiciales, por lo que se requería autorización del Consejo de Titulares. Por su parte, la señora Candelario negó que debiera la cantidad reclamada, considerando que ésta respondía al pago de la mesada y demás liquidaciones a las que tenía derecho. En cuanto a la postura del Condominio de que los cheques emitidos excedían el límite de $5,000 establecido por la Ley de Condominios, la señora Candelario adelantó dos teorías. En primer lugar, que la disposición de la Ley que establece dicho límite se refiere exclusivamente a re-clamaciones judiciales o extrajudiciales y en este caso la Junta realizó dicho desembolso sin que la peticionaria hi-ciera reclamación alguna. En segundo lugar y en la alter-nativa, que, si fuera aplicable el límite de $5,000, éste se referiría únicamente al pago que recibió en concepto de mesada pues los demás pagos fueron por cantidades infe-riores a $5,000. Por último, presentó una reconvención en la cual reclama el pago de $299.25 en concepto de rema-nente de la mesada. El Condominio también alegó que la Ley Núm. 80 no cubría a la señora Candelario pues a ella se le había con-tratado por un término fijo de un año, mientras que la Ley aplica únicamente a los empleados por término indeterminado. Además, alegó que la peticionaria no tenía derecho a la mesada porque, al ser Administradora, era mandataria del Condominio y no empleada. Por el contra-*958rio, la señora Candelario alegó que era empleada del Con-dominio, que fue despedida sin justa causa y que, aunque su contrato era anual, se había generado una expectativa de continuidad en el empleo que la convirtió en empleada regular por tiempo indeterminado protegida por la Ley Núm. 80. El Tribunal de Primera Instancia declaró “sin lugar” la demanda, manifestando que “quedó plenamente conven-cido ... de que la relación entre la parte demandante y su administradora se basó a lo largo de los años en que se dio dicha relación, en una de empleada-patrono”.(24) Apoyó dicha conclusión en “la naturaleza de la relación [,] sus tér-minos y condiciones de empleo [,] y con el trato contributivo y de beneficios que se le dio en todo momento [a la peticionaria] ”.(25) Por lo tanto, al determinar que la señora Candelario era una empleada del Condominio y que no hubo justa causa para su despido, concluyó que los pagos emitidos por la Junta saliente constituían una obligación legal con la peticionaria y su pago no requería autorización del Consejo de Titulares. De igual manera, declaró “sin lu-gar” la reconvención, dado que la peticionaria no presentó prueba que demostrara que el Condominio le debía canti-dad alguna en concepto de mesada. El Condominio recurrió al Tribunal de Apelaciones y éste revocó la Sentencia del foro primario. Concluyó el tribunal que la señora Candelario no era empleada sino con-tratista del Condominio, por lo cual estaba excluida de las protecciones de la Ley Núm. 80. De igual forma, resolvió que la Junta saliente actuó ultra vires al emitir cheques por una cantidad mayor a $5,000 sin la autorización del Consejo de Titulares. En el recurso que atendemos, la peticionaria alega que el Tribunal de Apelaciones erró al concluir que ella era *959mandataria del Consejo de Titulares y, como tal, estaba excluida de la legislación laboral. Señala la señora Cande-lario que el Condominio deducía de su salario pagos al se-guro social, retenía contribuciones y denominaba su remu-neración como salario. Además, tenía derecho a quince días de vacaciones e igual periodo en caso de enfermedad, reci-bía bono de navidad y el Departamento del Trabajo y Re-cursos Humanos la clasificó como empleada para efectos de los beneficios de desempleo. También reitera que el pago emitido por la Junta saliente no fue ultra vires, pues el límite de $5,000 que establece la Ley Núm. 80 se refiere a reclamaciones judiciales o extrajudiciales y no a obligacio-nes legales que la propia Junta decidió cumplir sin que ella reclamara pago alguno. Por su parte, el Condominio argu-menta que el que se dedujeran pagos de seguro social y se retuvieran contribuciones no convirtió a la peticionara en empleada, más aún cuando fue ella, como Administradora del Condominio, quien implantó dicha práctica para todos los empleados y se incluyó entre estos. El 21 de enero de 2011 expedimos el auto de certiorari en el CC-2010-616 y lo consolidamos con el CC-2010-277. Procedemos a resolver ambas controversias. II El régimen de propiedad horizontal se adoptó en nuestra jurisdicción con una doble finalidad, a saber, pro-veer a las personas la posibilidad de disfrutar el derecho a la propiedad plena e individual de un inmueble y, a la vez, maximizar el uso del escaso terreno disponible en el país.(26) La propiedad plena e individual de un apartamento coexiste, entonces, con la de otros dueños, mientras se comparten unas áreas comunes que pertenecen a todos como parte de la comunidad. *960El titular individual es responsable principalmente de su propio apartamento, que le pertenece privativamente como cualquier otra finca sujeta a derechos reales como el de propiedad. En cuanto al uso y mantenimiento de los elementos comunes, así como los asuntos generales relacionados con la vida del condominio, la responsabilidad recae sobre toda la comunidad. Para ello, la Ley Núm. 103-2003, mejor conocida como la Ley de Condominios,!27) establece el Consejo de Titulares, compuesto por la totalidad de los titulares individuales, como la autoridad suprema del condominio. Ahora bien, nuestro ordenamiento reconoce las dificultades prácticas que presenta el que el Consejo de Titulares se encargue de los asuntos de día a día de un condominio. Por eso, la Ley dispone que cuando concurran más de quince titulares, se elegirá una Junta de Directores compuesta por vecinos del condominio.!28) Según el artículo 38 de la Ley de Condominios, la Junta de Directores estará compuesta, como mínimo, por un Presidente, un Secretario y un Tesorero, quienes, necesariamente, tienen que pertenecer al Consejo de Titulares.(29) De igual forma, el mismo Artículo 38(a)(2) provee para la selección de un “agente administrador, quien podrá no pertenecer a la comunidad de titulares y en quien el Consejo de Titulares, el Director o la Junta de Directores podrá delegar las facultades y deberes” permitidas por el Reglamento.(30) Es decir, la Junta de Directores y el cargo de agente administrador son creados por el mismo artículo de la Ley. De esa forma, el estatuto identifica al Agente Administrador como uno de los órganos internos de dirección del condominio y lo relaciona con el Presidente y, particularmente, con el Secretario de la Junta. A esta *961misma visión integral de dirección responde el que los de-beres del Agente Administrador se definan como el ejerci-cio de aquellas facultades del Consejo de Titulares y la Junta de Directores que le sean delegadas, es decir, tareas que le correspondería realizar a uno de estos cuerpos. El Artículo 38 dispone, además, que el Agente Administrador será elegido por el voto afirmativo de la mayoría del Consejo de Titulares. Su nombramiento, al igual que el de los integrantes de la Junta de Directores, es de un año, pero dicho término se puede prorrogar tácitamente por períodos iguales, salvo que el reglamento del condominio disponga otra cosa.(31) Por último, la ley dispone que el Consejo de Titulares podrá remover al Agente Administrador de su puesto por acuerdo mayoritario tomado en reunión extraordinaria convocada al efecto,(32) mientras que la Junta de Directores lo podrá relevar de sus funciones por justa causa.(33) Más allá de lo indicado, como nos explica el profesor Michel Godreau, “[s]obre este importante funcionario no es mucho lo que se dice en la Ley”.(34) Tampoco habíamos te-nido, hasta ahora, la oportunidad de analizar la figura del Agente Administrador y su relación con el condominio, par-ticularmente con el Consejo de Titulares. Los peticionarios en los casos consolidados nos solicitan que concluyamos que ellos son empleados del condominio protegidos por las leyes del trabajo. Por su parte, los condominios recurridos *962nos invitan a identificar al Agente Administrador como un mandatario del condominio, excluido de las leyes laborales. El consenso entre los tratadistas españoles es caracteri-zar la relación entre el agente administrador y el condomi-nio, como una relación mandante-mandatario,(35) con lo cual coincide la jurisprudencia de ese país.(36) En nuestra jurisdicción, Godreau y Hernández Denton opinan lo mismo.(37) Coincidimos con su conclusión. Veamos por qué. Al abordar la cuestión, los tratadistas se concentran en los siguientes asuntos: la naturaleza de la gestión del Agente Administrador; la forma de su retribución; el deber de rendir cuentas; el rol del encargo; la dependencia y la representación en las labores del Administrador. Sin embargo, cabe destacar que la posición de los tratadistas que conciben al Administrador como mandatario no está ajena a la crítica. Esta se basa, principalmente, en la falta de correspondencia entre la figura conceptual del Agente Ad-ministrador y la relación que realmente se establece entre éste y el condominio. Según Rabella de Carrillo: Si en el terreno jurídico las funciones del Administrador en el estricto y justo sentido de la palabra, debían encajarse en el ámbito del mandato, quedando en consecuencia reguladas por los artículos 1.709 y concordantes del Código Civil, no es me-nos cierto que en el terreno de la práctica se venían produ-ciendo con frecuencia harto notable situaciones verdadera-mente nebulosas en torno a la personalidad y facultades del *963Administrador ...,(38) Uno de los principales temas discutidos por la doctrina en este contexto es el de la retribución de los servicios del Agente Administrador. (39) No podemos olvidar que el con-trato de mandato se presume gratuito, presunción que difícilmente se extiende hoy al cargo de Administrador, máxime cuando por los conocimientos especializados y la inversión considerable de tiempo que se requiere del Admi-nistrador, se tiende a buscar los servicios de un tercero ajeno a la comunidad. Sin duda, es un sinsentido que un tercero dedique largas horas de trabajo, gratuitamente, al servicio de una comunidad a la que no pertenece. Esta realidad lleva a muchos a postular que el Agente Administrador no siempre es un mandatario. Por otra parte, la visión del Administrador como un copropietario que sirve como tal gratuitamente es cónsona con la que sostiene que para que al Administrador se le considere mandatario, es nece-sario que sus funciones se asemejen más a las de un miem-bro de la Junta de Directores que a las de un empleado, pues, entre otras cosas, los directores no reciben retribución. Ahora bien, la doctrina enfatiza en que, si bien la gra-tuidad es un elemento “natural” del mandato, tal caracte-rística no es “esencial”,(40) aunque es un factor que se debe considerar para determinar si estamos ante un adminis-trador o un empleado. Fernández Martín-Granizo con-cluye, respecto al asunto de la presunción de retribución, que ésta no depende de si se trata de un copropietario o de *964un tercero, sino de la naturaleza del trabajo realizado y la persona que lo lleva a cabo: Nosotros nos inclinamos por la retribución, tanto si es des-empeñado por uno de los propietarios como por un extraño. En este último supuesto, porque es lógico que hayan de satisfa-cerse unos emolumentos, sueldo o como quiera llamársele a quien lo desempeña a cambio de sus servicios. En el de los propietarios, porque siendo el administrador quien tiene en realidad a cargo toda la gestión del edificio y su vigilancia, ha de dedicar al cumplimiento de estas funciones una atención y un tiempo que necesariamente debe sustraer a sus propias ocupaciones, sin olvidar que por ser el encargado de velar por el buen régimen del edificio, y como tal hacer las oportunas advertencias y apercibimiento a los propietarios de los pisos y locales, además de exigir una gran dedicación resulta un cargo incómodo.!41) Otro elemento utilizado por la doctrina para concluir que el Agente Administrador es un mandatario es su obli-gación de rendir cuentas al terminar sus funciones.(42) Igual ocurre con los elementos de encargo y de representa-ción que pueden estar presentes en el puesto de adminis-trador y que son cónsonos con el contrato de mandato. También se considera pertinente que el escogido sea un copropietario o un tercero ajeno a la comunidad.(43) Fer-nández Martín-Granizo nos advierte que es este supuesto “el que plantea las mayores dificultades en orden a la de-terminación de la naturaleza jurídica de la figura del ad-ministrador de la propiedad horizontal”.(44) La razón es que, al ser una persona ajena a la comunidad, su contrata-*965ción se puede configurar más fácilmente y a la medida de las necesidades del condominio, como mandato, arrenda-miento de servicios o contrato de trabajo. Fernández Martín-Granizo identifica tres relaciones po-sibles entre el tercero y el condominio. Estas son: que el tercero trabaje, “con carácter de continuidad, en una oficina sita en el propio edificio y con remuneración fija, y se dedi-que única y exclusivamente a desempeñar las funciones propias de dicho cargo”;(45) que el tercero, “teniendo otras ocu-paciones propias, dedique su tiempo sobrante a llevar la administración de uno o varios edificios en su propio domicilio, mediante remuneración fija”,(46) o que se trate “de una entidad especializada en la realización de estos servicios, con empleados fijos y mediante remuneración”.(47) En el tercer supuesto, el agente administrador sería la persona jurídica contratada, en cuyo caso estaríamos cla-ramente ante un contrato de mandato. En cuanto al primer y segundo supuestos, la diferencia entre éstos sería la “habitualidad o profesionalidad del administrador”.!48) En el primer supuesto, “se pued[e] decir que, al menos en cier-tos aspectos, el administrador va a tener la cualidad de empleado de la junta de propietarios .... Ello ha dado lugar a que, por algunos tratadistas, se considere que en el primer caso nos hallamos a presencia de una relación de tipo laboral y que, por consiguiente, la revocación del cargo ha de ir precedida del preaviso o acompañada de la proce-dente indemnización”.!49) Fernández Martín-Granizo con-*966cluye, entonces, que en este primer supuesto, el agente ad-ministrador es un mandatario simple.{.50) Por último, sobre el segundo supuesto, Fernández Martín-Granizo propone que “aun cuando en principio parece que tien[e] más de arrendamiento de servicios que de mandato, por las mismas consideraciones que hemos hecho para el [primer supuesto], estimamos que se tratará también de un mandato, sin negar totalmente la posibilidad de que pudiera ser configurado como una figura mixta de mandato simple y arrendamiento de servicios”.(51) Estas conclusiones de Fernández Martín-Granizo no son aceptadas unánimemente por los tratadistas. En vez, Pons González y Del Arco Torres insisten en que la figura del Agente Administrador no responde a una caracteriza-ción absoluta, y que todo dependerá de las circunstancias particulares de su relación con el condominio. Para ellos, será fundamental la naturaleza de las tareas que se le asignen al Administrador y si se trata de un trabajo que normalmente haría un copropietario como parte del Con-sejo de Titulares o de la comunidad en general. En esa dirección, citan con aprobación la Sentencia de la Audien-cia Territorial de Valencia de 25 de mayo de 1988, que tras reconocer que se trata de una “[c]uestión ampliamente de-batida”, expone:(52) [Sjólo pueden ser objeto posible de mandato aquellos actos en que quepa la sustitución, o sea, los que el mandante reali-zaría normalmente por sí mismo, que pertenecen a la esfera propia de su misma actividad .... [C]uando se encomienda a *967otra persona la prestación de servicios que normalmente no pueden ser realizados ni son de la propia actividad de la persona que los encomienda a otro, que precisamente necesita acudir a él para que lleve a cabo la actividad que aquél no podía utilizar ... es conducente a situación de arrendamiento de servicios ....(53) De lo anterior podemos concluir, primeramente, que la relación entre la persona escogida y la comunidad de resi-dentes es pertinente a la caracterización de la relación contractual entre el Administrador y el condominio. Si la persona contratada es un tercero ajeno a la comunidad, ya sea una compañía dedicada a ofrecer servicios de administra-ción o una persona natural que se dedica a ofrecer dichos servicios a más de un condominio, estaremos ante un man-datario y la relación será gobernada por la figura del con-trato de mandato o, si las partes así lo han convenido, por un contrato mixto. Igual conclusión se requiere en el su-puesto del tercero que dedica su tiempo exclusivamente a la administración de un condominio. Como resultado de lo anterior, resolvemos que cuando se trate de un “agente administrador” en el régimen de propiedad horizontal, éste será considerado un mandatario sujeto a las disposiciones pertinentes del Código Civil, según atemperadas por la Ley de Condominios. III Aunque la mayoría de la doctrina se inclina hacia carac-terizar al “agente administrador” como mandatario —con-clusión que adoptamos en esta Opinión— subsiste una gran confusión sobre cómo diferenciar la figura del agente administrador de la de un empleado cobijado por un con-*968trato de trabajo o de arrendamiento de servicios. Cuando analizamos la doctrina aplicable al contrato de mandato, el panorama se complica aún más, pues, independientemente del caso del administrador de condominio, hay una gran confusión entre la figura del mandatario y la del empleado cobijado por la legislación laboral. Luego de resolver que un “agente administrador” es un mandatario del Consejo de Titulares, aún nos hace falta determinar quién es un “agente administrador” para efec-tos de la Ley de Condominios. Esto, pues cabe la posibili-dad de que en algunos casos la persona contratada nomi-nalmente como “administrador” no tenga las facultades de ese puesto, sino que lleve a cabo tareas ajenas a dicho cargo. Ya que en nuestro ordenamiento el título no hace la cosa, no basta la denominación hecha por las partes o que a la persona contratada se le otorgue, sin más, ese título. El “agente administrador”, como figura jurídica, tiene unas características que lo distinguen y que una persona debe tener para considerarse como tal. Para poder estudiar adecuadamente la figura del Agente Administrador, hace falta recurrir a la normativa española y la doctrina científica de ese país, de donde la adoptamos. La primera disposición de ley que hace men-ción del administrador de fincas urbanas en España es el artículo 18 de la Ley de 21 de julio de 1960.(54) Explica el tratadista Rabella de Carillo que la disposición “configura, por vez primera en el derecho español, la figura del Admi-nistrador de Fincas —bien que para el caso concreto de la propiedad horizontal— con notable detalle, tanto en lo que a su nombramiento, cese, condición, etc., respecta, como en lo relativo a sus funciones y facultades”.!55) Reconoce, ade-*969más, que se trata de una “denominación tan amplia como vaga”, por lo cual "viene a englobar a todas aquellas per-sonas que, por encargo del propietario de un inmueble, tie-nen a su cargo tanto las relaciones del mismo con el Fisco (pago de contribuciones, arbitrios, inspecciones, etc.), como el cuidado de su explotación (contratación, cobro de alqui-leres, revisando precios, etc.), y la conservación material de las cosas (obras de reparación, suministros, etc.)”.(56) Esta cita revela la dificultad de definir con precisión la natura-leza jurídica del cargo de administrador de fincas. Sumado a esto, las cada vez más complicadas relaciones sociales de la vida moderna han exigido cambios conceptuales que apartan al administrador de un inmueble sometido a pro-piedad horizontal del administrador de fincas original. Esto es importante, pues muchos de los tratadistas que citaremos estudian la figura del Agente Administrador como si fuera el administrador de fincas de aquel mundo que hoy no existe. Originalmente, cuando la administración de un edificio no conllevaba el empleo de mucho tiempo o esfuerzo ni de conocimientos especializados, se escogía de entre la comu-nidad a un titular, al igual que se escogía al que presidente o al tesorero, para que se ocupase de los asuntos internos del condominio. Incluso, recurrir a un tercero extraño a la comunidad no era la norma y los tratadistas tuvieron que aclarar que esa opción no era incompatible con el régimen de propiedad horizontal.(57) Poco a poco, la doctrina co-menzó a reconocer la tendencia a favor de la profesionali-*970zación de la figura del agente administrador mediante la selección de una persona ajena a la comunidad.(58) En efecto, la figura del Agente Administrador surge por-que las complejidades de la vida moderna no permitían a la comunidad organizada como Consejo de Titulares, ni a nin-guno de los propietarios individualmente, encargarse a tiempo completo de todos los asuntos relacionados al condominio.(59) Como explica Batlle Vázquez, “[t]oda orga-nización colectiva necesita, para su eficacia, de un agente ejecutivo, de un gestor que mantenga la administración de ritmo necesario, por lo que es indispensable la existencia de un administrador”.(60) Es decir, más que una convenien-cia para la comunidad, el Agente Administrador se ha con-vertido en una necesidad, particularmente para los com-plejos que incluyen una cantidad considerable de apartamentos. Según este tratadista, [e]n las pequeñas comunidades se suele nombrar adminis-trador a uno de los propietarios, pero en las de mayor impor-tancia se requieren especiales condiciones y conocimientos que no siempre se encuentran entre los dueños interesados, por lo que es práctica frecuente acudir a personas competentes ex-trañas a la comunidad, a las que se remunera a cargo de ésta.(61) Nuestra Ley de Condominios visualiza al Administrador como parte de la dirección de la comunidad y reconoce, en su Artículo 38, que entre la Junta de Directores, el Presidente, el Secretario, el Tesorero y el Agente Administrador hay una relación particular. Esto es pro-*971ducto del entendimiento de que estos cargos, particular-mente los del Presidente y el de Agente Administrador, son los principales órganos de gestión interna de un condominio(62) En efecto, la doctrina vincula, constante-mente, la figura del Administrador con la del Presidente (63) y, más todavía, con la del Secretario(64) La visión original era que ambos cargos, el de Administrador y el de Pre-sidente, podían ser, y en muchas ocasiones eran, ocupados por la misma persona. Incluso, para Puig Brutau, la Ley de 21 de julio 1960 antes mencionada requería que se estable-ciera expresamente en el Reglamento del condominio que el Presidente no sería el Administrador, pues, en ausencia de tal disposición, la misma persona podría ocupar ambos puestos(65) La doctrina también asocia, incluso con más fuerza, al Administrador con la figura del Secretario. Lo que es más, muchos tratadistas hacen referencia, más que al Agente Administrador, al “Secretario-Administrador”.(66) Incluso, Pons González y Del Arco Torres proponen que la relación *972entre el Secretario y el Administrador es lo suficiente-mente estrecha como para afirmar que este último podría “[a]ctuar, en su caso, como Secretario de la Junta ...”.(67) Otro tratadista, Ventura-Traveset y González, afirma que las primeras normas relativas al Agente Administrador lo conciben como un alter-ego del Presidente o, en su defecto, del Secretario: “Hay que advertir que estas funciones co-rresponden al administrador, tanto en el caso de que el presidente actúe como administrador ... o cuando el secre-tario sea al propio tiempo administrador ...”.(68) Si bien el desarrollo ha sido hacia cierta separación en-tre la figura del Agente Administrador y los demás inte-grantes de la Junta de Directores, con el fin de permitir que un extraño a la comunidad pueda ejercer el cargo, no podemos perder de perspectiva que el Administrador, al que parte de la doctrina hace referencia, se asemeja más al Secretario de la Junta que a un ente externo contratado para llevar a cabo cualquier labor en beneficio del edificio. Hasta hoy, el Agente Administrador contemplado por los tratadistas tiene como referente histórico y normativo al Secretario-Administrador. En la medida que las funciones de la persona escogida se asemejen a las funciones típicas del Administrador, ya sea en cuanto a los poderes que se le deleguen o en las labores que realice, la normativa sobre el Agente Administrador en la propiedad horizontal aplicará en todos sus aspectos. Así, más que el título dado por las partes, se deben auscultar las funciones y los poderes atri-buidos al Administrador caso a caso, de manera que las disposiciones del artículo 38 de la Ley de Condominios cu-bran solamente aquellas situaciones en las que se trate de un “agente administrador”. De esta forma, resulta necesa-rio distinguir entre el “Agente Administrador”, cuyas fun-ciones corresponden a los deberes y facultades reconocidos *973en la ley como inherentes al cargo,!69) y una persona con-tratada para atender otros asuntos del condominio, exclui-dos de la definición provista por el Artículo 38. La propia doctrina reconoce la gran dificultad de distin-guir entre el “Agente Administrador” y el empleado sujeto a un contrato de trabajo o de arrendamiento de servicios, quien realiza otras funciones ajenas al cargo de “Agente Administrador” Incluso, la doctrina también reconoce los argumentos que pueden llevar a concluir que, en determi-nadas circunstancias, una persona contratada para aten-der otros asuntos internos del condominio no es un man-datario, sino un empleado. También es importante recordar que aun si este análisis nos lleva a concluir que las funciones desempeñadas o las delegadas corresponden a las de un mandatario, nada impide que las partes pacten un contrato mixto de mandato y arrendamiento de servi-cios en el que se otorguen ciertos beneficios de tipo “labo-ral” al Administrador.!70) Las funciones del Agente Administrador son muy am-plias, al igual que el “margen de confianza en su actuación”.!71) En términos generales, las funciones recono-cidas al Agente Administrador español son de tres tipos: ejecutivas, de propia iniciativa y de custodio contable.!72) Principalmente, sus responsabilidades son de coordinación *974y supervisión(73) lo cual incluye la potestad de contratar en su condición de mandatario, tanto al personal del condomi-nio como a suplidores de servicios y materiales(74) Esta potestad, a su vez, parte de la premisa de que las faculta-des del Agente Administrador son potestades del Consejo de Titulares o la Junta de Directores que se le delegaron(75) Como sugiere Fuentes Lojo, el Administrador es como “gerente de la comunidad”, y se le deben adscribir las facultades inherentes a todo gerente(76) Igual propone Ventura-Traveset y González al reconocer la analogía entre las funciones del Administrador y las del “gerente de un negocio” y “el naviero de un buque perteneciente a varias personas”(77) Por lo tanto, una persona será Agente Administrador si a consecuencia de su contrato se le delegan facultades o responsabilidades que corresponden, en primera instancia, al Consejo de Titulares o a la Junta de Directores. Además, se analizará cuáles son las funciones que ejerce en la realidad. Nuestra Ley de Condominios calla sobre las funciones del Agente Administrador, pero establece claramente que el Consejo de Titulares lo removerá “por acuerdo mayoritario tomado en reunión extraordinaria convocada al efecto”(78) El Consejo de Titulares también puede prescindir del Agente Administrador negándose a renovar el contrato anual. Esta facultad para removerlo *975libremente es uno de los elementos que, según la doctrina, sirven para demostrar que el Administrador es, en efecto, un mandatario, pues a éste también se le puede revocar su mandato de manera unilateral y sin necesidad de justificación. (79) La exigencia de justa causa para la remoción del Agente Administrador únicamente aplica a la Junta de Directores, no al Consejo de Titulares, cuyo poder de remo-ción es absoluto y unilateral, aunque el Reglamento del condominio puede limitar esta autoridad. Por lo tanto, en Puerto Rico, cuando se remueve a un agente administra-dor, no habrá indemnización más allá del rembolso que le corresponde, como mandatario, por los gastos incurridos. Ahora bien, si el contrato entre el condominio y el Adminis-trador-mandatario incluye beneficios como vacaciones, bono de navidad y otros, y éstos han sido acumulados o se le deben, el condominio deberá efectuar dichos pagos. La doctrina de pacta sunt servanda así lo exige. Incluso, como explica Batlle Vázquez, pueden existir “cláusulas de per-manencia mayor en el cargo que, sin mengua de la posible remoción por parte de la asamblea, obligue a indemnizar los despidos injustos o anticipados al plazo convenido”. (80) Por consiguiente, el Agente Administrador que sea despe-dido antes del término estipulado en su contrato no tendrá derecho a compensación por los salarios dejados de perci-bir, pero sí a los salarios por el trabajo ya realizado y cua-lesquiera otros beneficios debidos según la relación con*976tractual particular, salvo que el contrato disponga otra cosa.(81) IV Al igual que ocurre con la definición de “Agente Admi-nistrador” en la Ley de Condominios, el Código Civil no ofrece la claridad necesaria para distinguir con precisión entre el contrato de mandato y otras figuras contractuales similares, como el contrato de trabajo, el de arrendamiento de servicios y el de ejecución de obra.(82) En todos éstos, una persona ofrece servicios a otra y, como ilustra Diez-Picazo, se han realizado “múltiples esfuerzos doctrinales ... a fin de buscar un criterio de diferenciación con el arren-damiento de servicios o de obra”.(83) Según el tratadista Martín Blanco, el asunto se com-plica cuando se pretende diferenciar el contrato de man-dato del contrato de trabajo: “El esfuerzo de la doctrina por encasillar el contrato de trabajo dentro del cuadro general de las figuras contractuales, ha llevado a un sector de aqu[é]lla a intentar catalogar y clasificar la figura del con-trato laboral sobre el plano o molde del contrato de mandato”.(84) Claro está, no podemos perder de perspectiva *977que esta dificultad es producto de una época en la que el derecho del trabajo estaba aún incipiente y no había alcan-zado el nivel de complejidad y desarrollo que goza hoy. Para este tratadista, la principal diferencia entre el con-trato de mandato y el de trabajo se establece mediante dos elementos o criterios: precio y representación.(85) En cuanto al primer elemento, el tratadista revive la polémica de la retribución en el mandato. Esta posibilidad, que como dijimos se puede dar mediante pacto expreso o cuando el mandatario tenga por ocupación llevar a cabo la gestión encomendada, establece una clara diferencia entre el contrato de mandato y el contrato de trabajo, pues no existe, por definición, un contrato de trabajo gratuito. Mar-tín Blanco concluye, por lo tanto, que siempre que opere la gratuidad, estaremos ante una relación mandante-mandatario. Por el contrario, si hay retribución habrá que precisar de otro modo si se trata de un contrato de man-dato retribuido o un contrato de trabajo. El segundo elemento discutido por Martín Blanco, y el más importante, es la representación. Esta, a su vez, guarda relación con otros: la subordinación, el objeto de la relación y la confianza. Sobre la subordinación o dependen-cia, el tratadista explica que: “La relación de subordinación que la jurisprudencia estima como característica del con-trato de trabajo no existe, sin duda alguna, en el mismo grado en las relaciones entre mandatario y mandante, pero no es completamente extraña a esas relaciones. El manda-tario actúa por órdenes y a veces bajo la dirección del mandante. Hay una diferencia de grado en la subordina-*978ción, pero es imposible limitarse a esa única diferencia para distinguir los dos contratos”/86) Por su parte, Diez-Picazo advierte que no se debe hacer demasiado énfasis en el asunto de la representación, pues “[m] andato y representación son instituciones dis-tintas”/87) Según Castán Tobeñas, la representación es un elemento ordinario pero no esencial del contrato de mandato/88) Para Puig Brutau, sin embargo, el asunto de la subordinación o dependencia y la representación son, en extremo, pertinentes a la calificación del contrato: Por el contrato de mandato alguien actúa por cuenta de otro frente a terceros con independencia de lo que haga en nombre propio o en el de su mandante, y de que lo haga de manera gratuita o a cambio de una remuneración. Por el contrato de prestación de servicios queda establecida entre dos personas una relación de dependencia, transitoria o duradera, que per-mite a una de ellas obtener servicios y a la otra cobrar una remuneración. Por el contrato de ejecución de obra una de las partes queda obligada a proporcionar a la otra un resultado determinado y obtenido con su trabajo independiente, a cam-bio de un precio convenido/89) Es decir, el elemento que diferencia el contrato de mandato de los demás es la naturaleza de la prestación/90) Como sugiere Martín Blanco, “[e]l mandato es esencialmente un contrato de representación, destinado a permitir a una persona realizar un acto jurídico o una serie de actos por cuenta de otra, mientras que el contrato de trabajo tiene por objeto la realización de un trabajo con independencia de toda idea de representación”/91) Esta se-*979rie de actos se refiere a actos o resultados jurídicos, es de-cir, “la creación directa de un derecho en favor del man-dante por mediación del mandatario”, mientras que el trabajo realizado es accesorio al resultado jurídico generado.(92) De igual manera, Puig Brutau advierte del peligro de no darle sentido práctico a esta aseveración, pues podría confundir y llevar a resultados absurdos: Pero no tendría sentido decir que el contratista que ha reci-bido el encargo (tanto si es directamente del interesado como de un mandatario suyo) gestiona intereses ajenos al realizar la obra. Si esto fuese admisible, podría igualmente decirse que el vendedor que entrega al comprador la cosa vendida gestiona intereses de éste, lo cual no tendría sentido,(93) El tema del encargo y la representación, así como la naturaleza de la prestación, tiene una relación estrecha con el propósito del mandato: el mandante delega en el mandatario aquello que el propio mandante pudo haber hecho por cuenta propia. A medida que lo realizado por la persona contratada sea algo que el principal no pudo haber hecho por cuenta propia, razón por la cual recurrió a un tercero presumiblemente diestro en la tarea solicitada, nos habremos alejado del contrato de mandato. En sentido con-trario, si se trata de una labor que el principal pudo haber hecho por sí mismo, estaremos ante una relación mandante-mandatario. (94) Por último, el asunto de la confianza es uno de los ele-mentos más enfatizados para diferenciar el contrato de *980mandato de las demás figuras contractuales que hemos identificado.(95) Por eso es que se hace referencia a la rela-ción de “cooperación”, “fiducia”, “desinterés” y “ami-stad”.(96) V Pasamos, entonces, a analizar los dos casos ante nues-tra consideración. En el caso CC-2010-616, la señora Can-delario supervisaba a ocho empleados del condominio, así como a los diferentes contratistas que le prestaban sus ser-vicios; su horario de trabajo era de 8:00 am a 5:00 pm, aunque pasaba la mayoría del tiempo fuera de la oficina, supervisando el complejo; estaba autorizada a contratar a nombre del condominio y tenía potestad para emplear y despedir a los trabajadores; preservaba los récords, y lle-vaba a cabo aquellas labores que la Junta de Directores o el Consejo de Titulares le delegaba. Ante este cuadro, no hay duda de que la señora Candelario era una “agente ad-ministradora”, según establecido por el artículo 38 de la Ley de Condominios. Si bien llama la atención que se des-contaran de su sueldo las cantidades correspondientes a seguro social, contribuciones y pagos por seguro de desem-pleo, ello no derrota la conclusión de que sus funciones correspondían a las de Agente Administradora y que era, por ende, mandataria del condominio y no su empleada. Por lo tanto, no tiene derecho al pago de mesada. No obstante, la relación entre la señora Candelario y el condominio incluía beneficios como licencia de enfermedad, vacaciones y bono de navidad, y ella es acreedora al pago por estos conceptos que son parte válida del contrato entre las partes. Por tratarse de una deuda contractual en la que incurrió el condominio, no aplica la disposición de la Ley de *981Condominios que fija el límite máximo de lo que la Junta puede desembolsar, para transar reclamaciones, sin la au-torización del Consejo de Titulares. Además, la suma de las partidas de vacaciones, enfermedad y bono de navidad no llegan al tope de $5,000 fijado por la ley. En el caso CC-2010-277, la relación entre el señor Colón Ortiz y el condominio es menos clara. El peticionario tenía un horario fijo de trabajo; no tenía autoridad para emplear o despedir; no tenía discreción en el desempeño de sus la-bores; no supervisaba empleados; al momento de su acci-dente estaba trabajando físicamente con el contenedor de basura y recibió los beneficios del Fondo del Seguro del Estado como si se tratase de un empleado. No obstante, el foro primario no hizo determinaciones de hecho sobre cuá-les eran las labores que llevaba a cabo el señor Colón Ortiz. De igual forma, el contrato de administración suscrito en-tre las partes incluye una lista extensa de deberes y facul-tades semejantes a las que desempeña un “agente administrador”.(97) Ante ese panorama, tenemos que con-cluir que el peticionario era un agente administrador para efectos del artículo 38 de la Ley de Condominios y, por lo tanto, un mandatario del Consejo de Titulares excluido de las leyes protectoras del trabajo. De acuerdo con lo anterior, modificamos la sentencia dictada por el Tribunal de Apelaciones en el caso CC-2010-616 a los efectos de que procede la acción en cobro de dinero por la cantidad pagada en concepto de la mesada, mas no las sumas pagadas en concepto de vacaciones, enfermedad y bono de navidad. Además, confirmamos la decisión del Tribunal de Apelaciones en el caso CC-2010-277. Se dictará sentencia de conformidad. La Jueza Asociada Señora Pabón Charneco concurrió con el resultado de la Opinión, ya que se resuelve correc-tamente que la figura del Agente Administrador en el Régi-*982men de Propiedad Horizontal es un mandatario del Con-sejo de Titulares. No obstante, considera innecesarias las menciones de tratadistas españoles en la Parte II de la Opinión que critican esa conclusión. Entiende que ello puede abonar a una confusión en futuros casos ya que el resultado de la Opinión es contrario a lo expuesto por estos tratadistas. El Juez Asociado Señor Rivera García no interviene. (1) Caso Núm. CC-2010-0277, Determinaciones de Hechos, Sentencia del Tribunal de Primera Instancia, pág. 2; Apéndice de la Petición de certiorari, pág. 38. (2) Caso Núm. CC-2010-0277, Sentencia del Tribunal de Apelaciones, pág. 1; Apéndice de la Petición de certiorari, pág. 2. (3) Caso Núm. CC-2010-0277, Contrato de 16 de octubre de 1996, pág. 1; Apén-dice de la Petición de certiorari, pág. 50. Según el contrato, la Junta de Directores también podía delegarle un sinnúmero de tareas al Administrador: dirigir los asun-tos financieros relativos a las recaudaciones y pagos; atender las deudas de los titu-lares; mantener una cuenta bancaria a nombre del condominio; atender violaciones al reglamento; responder por la conservación y el funcionamiento de las diversas dependencias del condominio, fundamentalmente las de uso común; preparar, man-tener y presentar todos los récords e informes requeridos por las leyes y el Regla-mento; cumplir y hacer cumplir las normas y los acuerdos del Consejo de Titulares y la Junta de Directores; atender la conservación del condominio y disponer las repa-raciones ordinarias que sean necesarias, adoptando las medidas pertinentes, y cui-*951dar que se lleve al día el libro de titulares. De igual forma, tendría “[t]odas las demás facultades que le sean asignadas por la Junta de Directores”. Id., pág. 51. (4) Caso Núm. CC-2010-0277, Determinaciones de Hechos, Sentencia del Tribunal de Primera Instancia, pág. 2; Apéndice de la Petición de certiorari, pág. 38. (5) Ley del Sistema de Compensaciones por Accidentes del Trabajo, 11 L.P.R.A. sec. 1 et seq. (Ley de Accidentes del Trabajo). (6) Caso Núm. CC-2010-0277, Sentencia del Tribunal de Apelaciones, págs. 3-4; Apéndice de la Petición de certiorari, págs. 4-5. (7) Id., pág. 4; Apéndice de la Petición de certiorari, pág. 5. (8) Caso Núm. CC-2010-0277, Petición de certiorari, pág. 7. (9) íd., pág. 8. (10) íd. (11) Caso Núm. CC-2010-0616, Pieza 1, Determinación de Hecho Núm. 2, Sen-tencia del Tribunal de Primera Instancia, págs. 6-7; Apéndice de la Petición de certiorari, págs. 15-16. (12) Caso Núm. CC-2010-0616, Pieza 1, Determinación de Hecho Núm. 3, id., pág. 7; Apéndice de la Petición de certiorari, pág. 16. (13) Según la señora Candelario, al comenzar sus labores como Administradora devengaba un salario de $1,500 mensuales con $200 de car allowance, el que eventualmente fue elevado a $2,250 mensuales y $250 de car allowance. Caso Núm. CC-2010-0616, Pieza 2, Transcripción del testimonio de la señora Candelario, Apén-dice de la Petición de certiorari, págs. 447-448. (14) íd., págs. 444-445. (15) íd., pág. 445. (16) íd., pág. 448. (17) Artículo 5.1 del Reglamento del Condominio Playa Dorada. El Reglamento también dispone que el administrador prestará fianza, si así se lo requiere el Consejo de Titulares. En cuanto a los deberes y las obligaciones del Administrador, el Regla-mento establece que: autorizará todos los contratos y demás documentos otorgados en nombre del Condominio; cobrará todas las cantidades debidas y pagará las deudas; en nombre del Condominio, empleará y despedirá a todo personal, fijará las horas de trabajo y la compensación para el mismo; velará por el cumplimiento del Regla-mento; mantendrá todos los récords y preparará todos los informes, incluso las mi-nutas escritas de todas las reuniones del Consejo de Titulares y de la Junta de Directores; preparará un presupuesto anual para someterlo a la reunión anual del Consejo; establecerá y mantendrá una cuenta bancaria a nombre del Consejo; adop-tará reglas para el mejor uso de las instalaciones del Condominio; “[e\n general, ejecutará los poderes y cumplirá con todos los deberes del Consejo de Titulares y lo los deberes señalados a la Junta de Directores excepto aquellos específicamente reserva-dos a los Titulares y lo déla Junta por las leyes del Estado Libre Asociado de Puerto Rico por el presente Reglamento”. íd. (18) Artículo 5.1(n) del Reglamento. (19) Caso Núm. CC-2010-0616, Pieza 2, Sentencia del Tribunal de Apelaciones, pág. 6; Apéndice de la Petición de certiorari, pág. 575. (20) íd., citando la Determinación de Hecho Núm. 5, Sentencia del Tribunal de Primera Instancia. (21) Id., citando la Determinación de Hecho Núm. 6, Sentencia del Tribunal de Primera Instancia. (22) No surgen con claridad del expediente las razones para la diferencia entre el total de pagos emitidos y la cantidad reclamada en la demanda. (23) Caso Núm. CC-2010-0616, Pieza 2, Sentencia del Tribunal de Apelaciones, pág. 2; Apéndice de la Petición de certiorari, pág. 571. (24) Caso Núm. CC-2010-0616, Pieza 1, Sentencia del Tribunal de Primera Instancia, pág. 11; Apéndice de la Petición de certiorari, pág. 20. (25) íd. (26) Consejo Titulares v. DACo, 181 D.P.R. 945 (2011). (27) 31 L.P.R.A. sec. 1291 et seq. (28) 31 L.P.R.A. sec. 1293b(a)(l). (29) íd. (30) 31 L.P.R.A. sec. 1293b(a)(2). (31) íd. (32) 31 L.P.R.A. sec. 1293b(b). (33) 31 L.P.R.A. sec. 1293b-4(k). La Ley dispone que se entenderá por justa causa “el desempeño negligente o culposo de sus funciones, la deshonestidad o la violación de las normas de buena conducta establecidas en el Reglamento del condominio o el incumplimiento de sus deberes establecidos contractualmente”. En dicho caso, la Junta tendría que convocar al Consejo de Titulares en un periodo de treinta días. íd. (34) M. Godreau, El Condominio: el régimen de propiedad horizontal en Puerto Rico, San Juan, Ed. Diclan, 1992, pág. 141. Si bien esta cita es en referencia a la antigua Ley de Propiedad Horizontal, lo mismo aplica a la Ley de Condominios de 2003. (35) J. Puig Brutau, Fundamentos de Derecho Civil, 3ra ed., Barcelona, Ed. Bosch, 1979, T. Ill, Vol. II, pág. 129; M. Pons González y M.Á. Del Arco Torres, Régimen jurídico de la propiedad horizontal, 6ta ed., Granada, Ed. Comares, 1995, pág. 526; M. Batlle Vázquez, La propiedad de casas por pisos, 8va ed., Alcoy, Ed. Marfil, 1980, pág. 165. (36) Véase Sentencia del Tribunal Supremo de España de 17 de diciembre de 1983. Véase, además, Sentencia de la Audiencia Territorial de Valencia de 28 de marzo de 1983, en F. Javier García Gil, La Propiedad Horizontal y su jurisprudencia, Zaragoza, Ed. Aranzado, 1988, pág. 432; Sentencia de la Audiencia Provincial de Madrid de 14 de noviembre de 1974, en Javier García Gil, op. cit., pág. 541. (37) Godreau, op. cit., pág. 144; F. Hernández Denton, La Ley de Propiedad Horizontal: un análisis de las enmiendas de 1976, 44 Rev. C. Abo. P.R. 257, 274 (1983). (38) (Énfasis suplido). J.A. Rabella de Carrillo, La Propiedad Horizontal, Barcelona, Eds. Acervo, 1960, pág. 135. (39) “Por lo que se refiere a sus características, el extremo más interesante a tratar es, sin duda, el relativo a si se trata de un cargo retribuido o gratuito”. M. Fernández Martín-Granizo, Código de la Propiedad Horizontal, Madrid, Ed. Rev. Der. Privado, 1976, pág. 885. (40) Fernández Martín-Granizo, op. cit., pág. 890; J. Martin Blanco, El contrato de trabajo: estudio sobre su naturaleza jurídica, Madrid, Ed. Rev. Der. Privado, 1957, págs. 54-55. (41) Fernández Martín-Granizo, op. cit., págs. 885-886. Asemejante conclusión llega Godreau: “Por lo general, el Agente Administrador desempeñará su cargo a cambio de una remuneración”. Godreau, op. cit., pág. 144. (42) Rabella de Carrillo, op. cit, págs. 138, 141; Sentencia de 3 de julio de 1980 de la Audiencia Territorial de Zaragoza, en García Gil, op. cit., pág. 551. (43) Fernández Martín-Granizo, op. cit, pág. 887. (44) (Énfasis suplido) íd., pág. 889. Fernández Martín-Granizo identifica a Bat-Ue como el principal propulsor del Administrador como mandatario, a Visco como proponente de caracterizarlo como laboral o mixto, y a Salis y Rizi como defensores de la idea de hacer la determinación entre contrato laboral o de mandato según la naturaleza de la actividad realizada. íd., eses. 29-31. (45) íd. (46) íd., pág. 891. (47) íd. (48) íd. (49) íd. Según Fernández Martín-Granizo, “no podemos negar que en este con-creto supuesto concurren varios de los requisitos que caracterizan las relaciones de trabajo ... tales como la dependencia o subordinación y la remuneración, sin olvidar la habitualidad o profesionalidad que en opinión de algunos autores es importante en las relaciones laborales”. íd. No obstante, el tratadista también reconoce que muchos de estos factores también son compatibles con el contrato de mandato, lo que re-afirma la dificultad de distinguir entre ambas figuras. (50) Fernández Martín-Granizo, op. cit., pág. 893. (51) íd., pág. 894. (52) para eii0 citan la Sentencia de la Audiencia Provincial de Valencia de 4 de junio de 1993 en la que dicho tribunal expresa que: “Tanto el vínculo existente entre la comunidad de propietarios y administrador de la misma ... como el vínculo exis-tente entre dicha comunidad y el [Administrador,] no conviene el título de mandato que le atribuye la sentencia recurrida sino el de arrendamiento de servicios que reiteradísima doctrina asigna a los contratos que se celebran entre todo profesional liberal y su cliente”. (Enfasis suplido). Pons González y Del Arco Torres, op. cit., pág. 529 esc. 9. (53) íd., págs. 534-535. De igual forma, el tribunal hace hincapié en que “[n]o cabe olvidar tampoco la creciente profesionalización de estas actividades de adminis-tración, paralela a la igualmente creciente complejidad de la vida socioeconómica y de los trámites burocráticos a seguir para adecuarse a la desbordante intervención administrativa en cualquier tipo de actividad económica ...”. Id., pág. 535. (54) Ley de 21 de julio de 1960, Núm. 49/60, Jefatura del Estado, B.O. 23, Reps. Legs. 1042. (55) Rabella de Carrillo, op. cit, pág. 119. Rabella de Carrillo menciona que hubo una referencia pasajera a esta figura en la Ley de Viviendas Protegidas de 1939. Id., pág. 136. Según Ventura-Traveset y González, “[el]l único antecedente legal en que [aparece] la figura del administrador de comunidad, es el artículo 398 del Código *969Civil, según el cual, como para la administración y mejor disfrute de la cosa común son obligatorios los acuerdos de la mayoría de los partícipes, sino resultare mayoría o el acuerdo de ésta fuere gravemente perjudicial a los interesados en la cosa común, el Juez proveerá, a instancia de parte, lo que corresponda, incluso nombrará un administrador". (Enfasis en el original). A. Ventura-Traveset y González, Derecho de propiedad horizontal, Barcelona, Ed. Bosch, 1980, pág. 385. (56) (Énfasis suplido). Rabella de Carrillo, op. cit., pág. 135. (57) Véase Rabella de Carrillo, op. cit., pág. 120. Por su parte, Puig Brutau expresa que ya “no es necesario que pertenezca a la comunidad de propietarios”. Puig Brutau, op. cit., pág. 129. (58) Rabella de Carrillo, op. cit., pág. 137. Esta visión no es unánime. Según Ventura-Traveset y González, ‘‘la experiencia demuestra que la administración está mejor en manos de uno de los copropietarios que en manos de un ajeno a la comunidad”. Ventura-Traveset y González, op. cit., pág. 385 esc. 2. Claro está, esto no es incompatible con la visión de que el Administrador deba ser una persona con conocimientos especializados y que dedique una cantidad sustancial de su tiempo al desempeño de ese cargo. Véase, además, Hernández Denton, supra, pág. 272. (59) Pons González y Del Arco Torres, op. cit., pág. 526. (60) Batlle Vázquez, op. cit., pág. 164. (61) íd. (62) Véase Pons González y Del Arco Torres, op. cit., pág. 525: “En unión del Presidente, son los únicos órganos ejecutivos de la propiedad horizontal”. Véase, además, Sentencia de 28 de marzo de 1985 de la Audiencia Territorial de Valencia, en García Gil, op. cit., pág. 432; Fernández Martín-Granizo, op. cit., págs. 868 y 885; Godreau, op. cit., pág. 142. Por su parte, Hernández Denton, al sostener que el Agente Administrador, según definido en la Ley de Condominios, no puede tener una relación laboral con el condominio, propone lo mismo en cuanto al Presidente, el Secretario y los demás integrantes de la Junta de Directores. Es decir, Hernández Denton enfatiza en que el Administrador está en una posición semejante a los demás directores. Hernández Denton, supra, pág. 274. Ahora bien, lo que nos corresponde atender es si esta restricción contra los directores aplica igualmente a casos en los que la persona contratada ocupa el título de Administrador, mas no se desempeña como tal. (63) pons González y Del Arco Torres, op. cit., pág. 528. Eso explica la postura de Rabella de Carrillo cuando afirma que el nombramiento de un agente administrador no es obligatorio, pues puede recaer sobre el Presidente. Rabella de Carrillo, op. cit., pág. 137. Véase, además, Batlle Vázquez, op. cit., pág. 164. (64) Véase Pons González y Del Arco Torres, op. cit., pág. 527. De la descripción de las funciones del Agente Administrador que hacen estos tratadistas surge la si-militud entre el Secretario y el Agente Administrador, por ejemplo, encargarse de las actas, citar a las reuniones, notificar los acuerdos, entre otros. (65) puig Brutau, op. cit., pág. 128. (66) íd.; Pons González y Del Arco Torres, op. cit.', Fernández Martín-Granizo, op. cit., págs. 313-314. (67) Pons González y Del Arco Torres, op. cit., pág. 528. (68) Ventura-Traveset y González, op. cit., pág. 387. Véase, además, Fernández Martín-Granizo, op. cit., pág. 885. (69) Véase Sentencia del Tribunal Supremo de España de 10 de febrero de 1947, Repertorio Aranzadi 202. En dicho caso, el máximo foro español determinó que una administradora de finca rústica era una empleada cobijada por la legislación laboral y no una mandataria, debido a la falta de libertad de actuación y otras circunstancias de la relación entre las partes que la excluían de esta figura contractual. Cuando, por el contrario, la realidad de la relación apunta a facultades amplias de administración y representación, el tribunal español ha excluido a la persona de las leyes laborales y ha aplicado la normativa del contrato de mandato. Sentencia de 7 de junio de 1940, Repertorio Aranzadi 547. (70) Es decir, nada impide que las partes, fundamentándose en el principio de la libertad de contratación y la autonomía de la voluntad, pacten como parte del con-trato que el Administrador recibirá beneficios tales como bono de navidad, vacacio-nes, licencia por enfermedad, entre otros. (71) Rabella de Carrillo, op. cit., pág. 119. Véase, además, Ventura-Traveset y González, op. cit., pág. 396. (72) Batlle Vázquez, op. cit., pág. 166. (73)Rabella de Carrillo, op. cit., pág. 141. (74) íd., págs. 153-155. (75) Fernández Martín-Granizo, op. cit., pág. 887; Godreau, op. cit., pág. 141. (76) J.V. Fuentes Lojo, Suma de la Propiedad por Apartamentos, Barcelona, Ed. Bosch, 1985, pág. 358. (77) Ventura-Traveset y González, op. cit., pág. 385, citando a Jerónimo González. (78) 31 L.P.R.A. sec. 1293b(b). Por su parte, la Junta de Directores podría remover al Agente Administrador por justa causa, definida en el propio artículo 38 de la Ley de Condominios, decisión que tendría que ser confirmada eventualmente por el Consejo de Titulares. Véase esc. 33. (79) El mandato puede extinguirse por su revocación o la renuncia del manda-tario, así como por la muerte, quiebra o insolvencia del mandante o del mandatario. Artículo 1623 del Código Civil; 31 L.P.R.A. see. 4481. Resulta anómalo que si el agente administrador es, en efecto, un mandatario, su contrato terminaría por el mero hecho de su insolvencia o quiebra. Como puede notarse, no siempre aplican nítidamente los elementos del contrato de mandato a la figura del administrador en la propiedad horizontal. Por otra parte, Puig Brutau añade otra causal de termina-ción: el transcurso del tiempo por el que se constituyó el mandato. Puig Brutau, op. cit., 1982, T. II, Vol. 2, pág. 419. (80) Batlle Vázquez, op. cit., pág. 164. (81) Fernández Martín-Granizo, op. cit., págs. 905-906. (82) Mediante un contrato de mandato “se obliga una persona a prestar algún servicio o hacer alguna cosa, por cuenta o encargo de otra”. Artículo 1600 del Código Civil; 31 L.P.R.A. see. 4421. Éste puede ser general o especial; el primero comprende todos los negocios del mandante; el segundo, uno o más negocios determinados. Ar-tículo 1603 del Código Civil; 31 L.P.R.A. see. 4424. De igual forma, el contrato de mandato puede ser concebido en términos generales, entendiéndose tan solo para asuntos de administración, o puede ser expreso, con lo cual se permite al mandatario realizar actos dispositivos, dentro del marco contractual establecido. Art. 1604 del Código Civil, 31 L.P.R.A. see. 4425. (83) L. Diez-Picazo y A. Gullón, Sistema de Derecho Civil, Madrid, Ed. Tecnos, 1976, Vol. II, pág. 351. Por su parte, en su obra, Puig Brutau discute la figura del mandato en un acápite titulado Mandato, Prestación de Servicios y Ejecución de Obra. Puig Brutau, op. cit., 1982, T. II, Vol. 2, pág. 395. (84) Martín Blanco, op. cit, pág. 46. Entre las obligaciones que tiene el manda-tario se encuentran las siguientes: ejecutar el encargo con arreglo a las instrucciones del mandante; no traspasar los límites del mandato; dar cuenta de sus operaciones y abonar al mandante cuanto haya recibido por el mandato; pagar intereses por las *977cantidades que ha aplicado a usos propios; ser responsable por la gestión del susti-tuto, pues a menos que se lo haya prohibido el mandante, el mandatario puede designar un sustituto y responder por los efectos de dolo o culpa suya. Diez-Picazo, op. cit., págs. 354-356. Esta facultad del mandatario es curiosa, pues nadie propone que el agente administrador, como mandatario, puede designar a un tercero para que le sustituya como administrador. Nuevamente, se hace evidente que no hay corres-pondencia absoluta entre el agente administrador y el mandatario. (85) Martín Blanco, op. cit., pág. 47. (86) íd., pág. 50. (87) Diez-Picazo, op. cit., pág. 351. Por su parte, Castán Tobeñas advierte contra confundir el mandato y el poder. J. Castán Tobeñas, Derecho civil español, común y foral, Madrid, Ed. Reus S.A., 1985, T. 4, págs. 531-532. (88) Castán Tobeñas, op. cit., págs. 531-532. (89) (Énfasis suprimido). Puig Brutau, op. cit., T. II, Vol. 2, pág. 395. Véase, además, Castán Tobeñas, op. cit., pág. 529. (90) pu¡g Brutau, op. cit., T. II, Vol. 2, pág. 402; Castán Tobeñas, op. cit., pág. 536. (91) Martín Blanco, op. cit., pág. 50. (92) íd., pág. 51. A igual conclusión llega Diez-Picazo: “Entendemos que la esen-cia de la actividad del mandatario se halla en la conclusión de actos o negocios jurídicos; en otras palabras, en una actividad jurídicamente relevante”. Diez-Picazo, op. cit., pág. 351. Véase, además, Puig Brutau, op. cit., T. II, Vol. 2, pág. 396; Castán Tobeñas, op. cit., pág. 537. (93) (Enfasis suplido). Puig Brutau, op. cit., T. II, Vol. 2, pág. 402. Incluso, Puig Brutau se refiere a la figura angloamericana del agency y al vertretung alemán. A semejante conclusión llega Castán Tobeñas, pues si se permite una definición dema-siado amplia del encargo y la obra en beneficio de intereses ajenos, “todo gestor de negocios ajenos” sería un mandatario. Castán Tobeñas, op. cit., pág. 538. (94) Castán Tobeñas, op. cit., pág. 537. (95) pu¡g Brutau, op. cit., T. II, Vol. 2, pág. 419. (96 (97) Véase nota al calce 3.

01-03-2023

11-23-2022

https://www.courtlistener.com/api/rest/v3/opinions/3046937/

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 08-1046 ___________ Hayad Ahmed Guure; Salma Ciise * Liban; Yahia Ciise Liban; Zubeer * Ciise Liban, * * Petitioners, * * Petition for Review of v. * an Order of the Board * of Immigration Appeals. 1 Eric H. Holder, Jr., Attorney General * of the United States, * * [UNPUBLISHED] * Respondent. * ___________ Submitted: June 4, 2009 Filed: June 8, 2009 ___________ Before RILEY, SMITH, and BENTON, Circuit Judges. ___________ PER CURIAM. Hayad Ahmed Guure and her children petition for review of an order of the Board of Immigration Appeals (BIA) denying their motion to reopen. In particular, petitioners challenge the BIA’s refusal to reopen sua sponte the removal proceedings, 1 Eric H. Holder, Jr., has been appointed to serve as Attorney General of the United States, and is substituted as respondent pursuant to Federal Rule of Appellate Procedure 43(c). so that petitioners could reapply for asylum on the basis of female genital mutilation. We lack jurisdiction, however, to review a BIA’s decision not to invoke its sua sponte authority to reopen removal proceedings. See Tamenut v. Mukasey, 521 F.3d 1000, 1001, 1004-05 (8th Cir. 2008) (en banc) (per curiam).2 Accordingly, we deny the petition. ______________________________ 2 To the extent petitioners intended to challenge the remainder of the BIA’s decision denying the motion to reopen, we agree with the BIA that the motion was untimely, and petitioners failed to show they met any exception to the time limitation. See 8 U.S.C. § 1229a(c)(7)(C)(i) (time limitation); 8 C.F.R. § 1003.2(c)(3) (exceptions); Ghasemimehr v. Gonzales, 427 F.3d 1160, 1162-63 (8th Cir. 2005) (per curiam) (BIA did not abuse its discretion in denying untimely motion to reopen). -2-

01-03-2023

10-13-2015

https://www.courtlistener.com/api/rest/v3/opinions/2892534/

NO. 07-04-0407-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D APRIL 6, 2005 ______________________________ SANTOS PEREZ, III, Appellant v. THE STATE OF TEXAS, Appellee _________________________________ FROM THE 242ND DISTRICT COURT OF CASTRO COUNTY; NO. B2851-0211; HON. ED SELF, PRESIDING _______________________________ Before QUINN, REAVIS, and CAMPBELL, J.J. Santos Perez, III (appellant) appeals from an order revoking his community supervision and sentencing him to eight years imprisonment for aggravated assault. He originally pled guilty pursuant to a plea bargain agreement, was convicted of that offense, and was placed on community supervision for eight years. Thereafter, the State filed a motion to revoke wherein it alleged that he violated several terms of his community supervision. After a hearing during which appellant admitted to violating some those terms, the court entered the challenged order. Appellant's appointed counsel filed a motion to withdraw, together with an Anders1 brief in which he certified that, after diligently searching the record, he concluded that the appeal was without merit. Along with his brief, counsel attached a copy of a letter sent to appellant informing him that there were no grounds of appeal and of appellant's right to file a response or pro se brief. By letter dated November 16, 2004, this court also notified appellant of his right to tender his own brief or response and set December 15, 2004, as the deadline to do so. To date, appellant has filed neither a response, brief, or request for an extension of time. In compliance with the principles enunciated in Anders, appellate counsel discussed two potential areas for appeal. They involved 1) the sufficiency of the evidence to support the revocation and 2) the effectiveness of his trial counsel. However, counsel explained why each argument lacked merit. Furthermore, the record illustrates that appellant admitted to committing some of the acts described in the State's motion to revoke. Thus, the trial court had evidentiary basis for its decision to revoke probation. See Anthony v. State, 962 S.W.2d 242, 246 (Tex. App.–Fort Worth 1998, no pet.) (holding that the admission by the defendant to a parole officer that he violated his probation was sufficient evidence to revoke that probation). Appellant was also sentenced within the range allowed by law. See TEX . PEN . CODE ANN . §22.02 (b) (Vernon 2003) (aggravated assault is a second degree felony); TEX . PEN . CODE ANN . §12.33 (Vernon 2003) (stating that punishment for a second degree felony is confinement for not more than 20 years or less than two). Finally, the trial court, in its certification, stated that appellant could only appeal his revocation, not the original plea agreement. 1 Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). 2 We, too, have conducted our own review of the record to assess the accuracy of appellate counsel's conclusions and to uncover any error, reversible or otherwise, pursuant to Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991). Our review has failed to reveal error. Accordingly, the motion to withdraw is granted, and the judgment is affirmed. Brian Quinn Justice Do not publish. 3

01-03-2023

09-07-2015

https://www.courtlistener.com/api/rest/v3/opinions/3048262/

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 09-2216 ___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. Karen Diane Hatton, * * [UNPUBLISHED] Appellant. * ___________ Submitted: January 11, 2010 Filed: January 19, 2010 ___________ Before MURPHY and BYE, Circuit Judges, and STROM,1 District Judge. ___________ PER CURIAM. Karen Hatton pleaded guilty to unlawfully using the access devices of another (credit card fraud) in violation of 18 U.S.C. § 1029(a)(5). The district court2 sentenced her to twenty-four months of imprisonment followed by three years of supervise release, denying Hatton's request for acceptance of responsibility under U.S. 1 The Honorable Lyle E. Strom, United States District Judge for the District of Nebraska, sitting by designation. 2 The Honorable Jean C. Hamilton, United States District Judge for the Eastern District of Missouri. Sentencing Guidelines Manual (U.S.S.G.) § 3E1.1. Hatton appeals, contending the district court erred in denying her request for acceptance of responsibility. We affirm. Hatton's offense conduct consisted of using her employer's credit accounts to charge unauthorized personal expenses. Over the course of less than a year, Hatton made over $89,000 in unauthorized charges. Her plea agreement provided in relevant part that "any actions . . . which become known to the government subsequent to this agreement and are inconsistent with the defendant's acceptance of responsibility, but not limited to criminal conduct, are grounds for the loss of acceptance of responsibility pursuant to Section 3E1.1." After Hatton pleaded guilty, the government learned Hatton had been making personal purchases using her mother's credit card, essentially continuing the same pattern of conduct with which she was charged, but substituting her mother's credit card for her employer's. Between November 29, 2007, and January 28, 2009, the balance on the mother's credit card rose from $80.31 to $20,200.10. The abusive use of the mother's credit card continued after Hatton pleaded guilty. In the course of its investigation into the use of the credit card, the government also discovered Hatton had withdrawn more than $42,000 from her mother's certificates of deposit and a savings account. Although Hatton was a trustee of her mother's accounts and therefore authorized to make the withdrawals, the funds in the accounts were intended to provide support for Hatton's seventy-nine year-old mother, and the withdrawals were made without her mother's knowledge. Some of the withdrawals occurred after Hatton pleaded guilty. Based on this conduct, the district court denied Hatton's request for a two-level reduction in the calculation of her advisory Guidelines range under U.S.S.G. § 3E1.1. "We review a district court's denial of an acceptance of responsibility adjustment under U.S.S.G. § 3E1.1 for clear error." United States v. Winters, 416 F.3d 856, 860 (8th Cir. 2005) (citing United States v. Patten, 397 F.3d 1100, 1104-05 -2- (8th Cir. 2005)). "A district court's factual determination on whether a defendant has demonstrated acceptance of responsibility is entitled to great deference and should be reversed only if it is so clearly erroneous as to be without foundation." Id. (citing United States v. Arellano, 291 F.3d 1032, 1034 (8th Cir. 2002)). Hatton argues the district court erred in denying acceptance of responsibility because Hatton was authorized to use her mother's card, and thus her abusive use of the credit card was not "criminal conduct." Hatton contends § 3E1.1 limits a district court's consideration to criminal conduct. See U.S.S.G. § 3E1.1 cmt. n. 1 (providing a district court may consider "voluntary termination or withdrawal from criminal conduct or associations"). We disagree. The list of factors a district court may consider in determining whether a defendant qualifies for acceptance of responsibility is not exhaustive. See id. ("In determining whether a defendant qualifies [for acceptance of responsibility], appropriate considerations include, but are not limited to, the following . . .") (emphasis added). The abusive use of the mother's credit card was clearly similar to the unlawful manner in which she abused her employer's credit accounts and thus could be considered by the district court. Cf. United States v. Rodriguez, 979 F.2d 138, 140 (8th Cir. 1992) (holding that defendant's demonstrated propensity to repeatedly commit conduct similar to the charged conduct can be considered by the district court in evaluating defendant's acceptance of responsibility). We therefore conclude the district court did not clearly err in denying a reduction for acceptance of responsibility. We affirm. ______________________________ -3-

01-03-2023

10-13-2015

https://www.courtlistener.com/api/rest/v3/opinions/8540616/

per curiam: Nos corresponde atender una querella contra un abogado-notario a quien se le imputa haber incurrido en violaciones a los Cánones 6, 12, 18 y 19 del Código de Ética Profesional, 4 L.P.R.A. Ap. IX. Por entender que las actuaciones del querellado se apartaron de las normas éti-cas que rigen el ejercicio de la profesión, censuramos enér-gicamente al Ledo. Norman Pietri Castellón por su conducta. *985I El licenciado Pietri Castellón fue admitido al ejercicio de la abogacía el 9 de abril de 1964 y a la práctica de la notaría el 9 de junio del mismo año. El 2 de julio de 2003, la Sra. Norma Roche Rabell pre-sentó una queja ante la Oficina del Procurador General contra el licenciado Pietri Castellón. En síntesis, la señora Roche Rabell relató que era miembro de la Hermandad de Empleados de la Rama Judicial (Hermandad) y solicitó a esa entidad los servicios de representación legal para con-tinuar el trámite de varias querellas sobre asuntos de personal contra la Oficina de Administración de los Tribunales (O.A.T.) ante la Junta de Personal de la Rama Judicial (Junta). A tenor de esa solicitud, el licenciado Pietri Caste-llón asumió la representación legal de la señora Roche Rabell. La señora Roche Rabell adujo que durante el trá-mite de los casos ante la Junta, dos de tres querellas pre-sentadas por ella fueron desestimadas por falta de interés debido al incumplimiento de órdenes para replicar una so-licitud de desestimación, contestar interrogatorios y notifi-car si el caso se sometería por el expediente o seguiría el trámite ordinario. Las querellas Q-01-20 y Q-01-41 versan sobre la impugnación del descuento de un día de salario y la puntuación otorgada en un examen. En lo atinente a la querella Q-01-58, sobre reclutamiento y selección, señaló que el licenciado Pietri Castellón no la asesoró en torno a su derecho a solicitar revisión judicial de la determinación adversa. En consecuencia, la Oficina del Procurador General pre-sentó una querella contra el licenciado Pietri Castellón por entender que no cumplió con varias órdenes emitidas por la Junta, lo cual motivó la desestimación con perjuicio por falta de interés; no desplegó todas las diligencias necesa-rias para asegurar que no se causaran dilaciones indebidas *986en la tramitación y solución de los casos; no defendió ade-cuadamente los intereses de su dienta y no cumplió con el deber personalísimo de mantenerla informada del resul-tado de sus gestiones profesionales y de su derecho a revi-sar las determinaciones administrativas que le resultaron adversas. El licenciado Pietri Castellón respondió la querella de forma oportuna. De entrada, reconoció que no cumplió con la orden de replicar a las mociones de desestimación en los casos relacionados con las querellas Q-01-20 y Q-01-41, si-tuación que intentó remediar sin éxito presentando poste-riormente una moción de reconsideración. En tomo a la querella Q-01-58, admitió que no le informó directamente a la quejosa de la determinación adversa ni de su derecho a solicitar la revisión judicial. Precisó que las notificaciones de órdenes y comunicaciones relacionadas con casos ante la Junta se notificaban a la Presidenta de la Hermandad, por tener su oficina contigua a la de esa entidad y por entender que los unionistas mantenían comunicación con la funcionaría. Finalmente, reconoció que tales acciones no excusan sus omisiones y su deber de notificar y mantener informada directamente a su dienta, pero que esa realidad refleja que no tuvo interés en ocultar el desenlace de los casos administrativos que desembocaron en la querella que nos ocupa. Vista la Querella presentada por la Oficina de la Procu-radora General y la contestación a ésta, designamos me-diante Resolución de 20 de octubre de 2011 a la Hon. Cri-santa González Seda, exjueza del Tribunal de Primera Instancia, como Comisionada Especial para que recibiera la prueba necesaria y rindiera un informe con sus determi-naciones de hechos y recomendaciones. Luego de celebradas las vistas en su fondo ante la Co-misionada Especial, ésta sometió su informe ante este Foro. En éste la Comisionada Especial concluyó que el li-*987cenciado Pietri Castellón violó los Cánones 6, 12, 18 y 19 del Código de Etica Profesional, supra. La Comisionada Especial determinó que el licenciado Pietri Castellón no justificó sino que, por el contrario, admitió que incumplió con las órdenes emitidas por la Junta, por lo que violó el Canon 6 del Código de Etica Profesional, supra. Al evaluar la prueba sobre la violación al Canon 12 del Código de Etica Profesional, supra, la Comisionada Especial estimó que el licenciado Pietri Castellón incumplió con el deber de puntualidad y con su obligación de desplegar las diligen-cias necesarias para asegurar la debida tramitación de los casos administrativos referidos. De igual forma, determinó que la falta de diligencia que conllevó la desestimación con perjuicio de dos querellas por falta de interés e inactividad, constituyó una violación al Canon 18 del Código de Ética Profesional, supra. Finalmente, la Comisionada Especial destacó que la relación entre la señora Roche Rabell y el licenciado Pietri Castellón era de naturaleza personal, no a través de la Hermandad, por lo que su comunicación tenía que ser directa y efectiva con su cliente. Ante la prueba y la admisión del licenciado Pietri Castellón de que no mantuvo informada directamente a la señora Roche Rabell de los asuntos relevantes de los casos administrativos en cues-tión, la Comisionada Especial también concluyó que violó el Canon 19 del Código de Ética Profesional, supra. A pesar de lo anterior, la Comisionada Especial precisó que existían atenuantes, por lo que recomendó que el licen-ciado Pietri Castellón fuera amonestado o censurado por la conducta desplegada. Los atenuantes a los que aludió con-sisten en que el letrado aceptó las faltas cometidas, nunca ha sido objeto de otras querellas durante los cuarenta y ocho años en el ejercicio de la abogacía, no surge evidencia de perjuicio económico sufrido por la quejosa y tampoco quedó establecido que el ánimo de lucro fuera el motivo de su conducta. *988Examinemos en detalle los hechos que conllevan ejercer nuestra facultad disciplinaria contra el letrado Pietri Castellón. II La señora Roche Rabell se desempeña como secretaria del Tribunal de Primera Instancia y está afiliada a la Her-mandad, entidad que se constituyó como un capítulo del Sindicato Puertorriqueño de Trabajadores (Sindicato). La señora Roche Rabell solicitó a la Hermandad los servicios de representación legal ante la Junta en varias querellas sobre asuntos de personal, instadas por ésta contra la O.A.T. En consecuencia, la Hermandad refirió al licenciado Pietri Castellón las siguientes querellas, presentadas pre-viamente por la señora Roche Rabell: Q-01-18 (consolidada con la Q-01-17), motivada por no haberse concedido a la quejosa ni a otros empleados un aumento de sueldo de cien dólares establecido mediante la Ley Núm. 410-2000, según enmendada; Q-01-20, relacionada con una ausencia de la quejosa, que fue catalogada por la O.A.T. como “no autori-zada”; Q-01-41, motivada por la insatisfacción de la señora Roche Rabell por la puntuación que se le adjudicó en un examen; Q-01-58 (consolidada con la Q-01-43), relacionada con el cuestionamiento al proceso de reclutamiento y selec-ción del puesto de Secretaria de Tribunal II. (1) Examine-mos el tracto procesal de cada una de las querellas. La querella Q-01-18 (consolidada con la querella Q-01-17) fue resuelta en los méritos por la Junta a favor de la O.A.T y la querella Q-01-58 se resolvió por sentencia su-maria a favor de la O.A.T. El licenciado Pietri Castellón *989admitió que no notificó directamente el fallo adverso a su dienta ni su derecho a solicitar la revisión. El letrado se limitó a notificar las órdenes y resoluciones de las quere-llas referidas a la Presidenta de la Hermandad. En torno a la querella Q-01-20, el licenciado Pietri Cas-tellón no cumplió con una orden de la Oficial Examinadora de la Junta, mediante la cual le concedió treinta días para replicar la solicitud de desestimación de la O.A.T. Ante dicho incumplimiento, la Oficial Examinadora concedió un nuevo término de diez días para que mostrara causa por la cual no debía desestimarse la querella por falta de interés. Nuevamente, el licenciado Pietri Castellón incumplió. En consecuencia, la Junta desestimó la querella Q-01-20 con perjuicio. Aunque el licenciado Pietri Castellón presentó oportunamente una moción de reconsideración, la cual no resultó exitosa, la realidad es que no expuso justificaciones ni solicitó indulgencias por sus incumplimientos. En lo atinente a la querella Q-01-41, el licenciado Pietri Castellón incumplió una orden para contestar los interro-gatorios cursados por la O.A.T. Además, incumplió una or-den dirigida a informar si el caso administrativo se some-tería por el expediente o si se continuaría con el procedi-miento ordinario. Ante el incumplimiento con esas órdenes, la Junta des-estimó la querella Q-01-41 por falta de interés de la parte promovente. De igual forma, el licenciado Pietri Castellón tampoco mantuvo informada directamente a su dienta en torno a las fases relevantes del caso administrativo, la de-terminación adversa y su derecho a solicitar revisión. III El Canon 6 del Código de Ética Profesional, supra, dispone: Al prestar sus servicios profesionales ante organismos legis-lativos o administrativos el abogado debe observar los mismos *990principios de ética profesional que exige su comportamiento ante los tribunales. Es impropio de un abogado ocultar su ges-tión profesional ante dichas agencias gubernamentales me-diante el empleo de terceros o de medios indirectos para pro-mover determinada acción gubernamental en interés de su cliente. Un abogado que ejerza su profesión y que además ocupe un cargo legislativo o gubernamental debe anteponer el interés público al de su cliente cuando ambos vengan en con-flicto e inmediatamente renunciar la representación del cliente. El Canon 12 del Código de Ética Profesional, supra, es-tablece: Es deber del abogado hacia el tribunal, sus compañeros, las partes y testigos el ser puntual en su asistencia y conciso y exacto en el trámite y presentación de las causas. Ello implica el desplegar todas las diligencias necesarias para asegurar que no se causen indebidas dilaciones en su tramitación y solución. Sólo debe solicitar la suspensión de vista cuando existan razones poderosas y sea indispensable para la protec-ción de los derechos sustanciales de su cliente. De otra parte, el Canon 18 del Código de Ética Profesio-nal, supra, dispone, en lo pertinente: Será impropio de un abogado asumir una representación profesional cuando está consciente de que no puede rendir una labor idónea competente y que no puede prepararse adecuada-mente sin que ello apareje gastos o demoras irrazonables a su cliente o a la administración de la justicia. Es deber del abogado defender los intereses del cliente dili-gentemente, desplegando en cada caso su más profundo saber y habilidad y actuando en aquella forma que la profesión jurí-dica en general estima adecuada y responsable. El Canon 19 del Código de Ética Profesional, supra, dis-pone, además: El abogado debe mantener a su cliente siempre informado de todo asunto importante que surja en el desarrollo del caso que le ha sido encomendado. Siempre que la controversia sea susceptible de un arreglo o transacción razonable debe aconsejar al cliente el evitar o ter-minar el litigio, y es deber del abogado notificar a su cliente de *991cualquier oferta de transacción hecha por la otra parte. El abogado que representa varios clientes con intereses co-munes o relacionados entre sí no debe transigir ninguno de los casos envueltos sin que cada cliente esté enterado de dicha transacción y sus posibles consecuencias. Sabido es que el abogado que rinde servicios profesiona-les ante organismos administrativos debe observar los mis-mos principios de ética profesional que exige su comporta-miento ante los tribunales. Es por ello que debemos analizar las actuaciones y omisiones del licenciado Pietri Castellón a la luz de los deberes impuestos por los Cánones 12, 18 y 19, supra. Veamos. El Canon 12 del Código de Ética Profesional, supra, impone a todo letrado el deber de tramitar las causas de forma responsable, con puntualidad y diligencia. In re Vélez Báez, 176 D.P.R. 201 (2009). La función de un abogado requiere desempeñarse con la mayor diligencia, responsabilidad e integridad. In re Rosado Nieves, 159 D.P.R. 746 (2003). Como corolario del deber plasmado en el mencionado Canon 12 de Ética Profesional, la conducta de un abogado no debe obstaculizar la resolución de un caso. In re Vélez Báez, supra. Las actuaciones y omisiones que pongan en riesgo la acción de su cliente son violaciones patentes a dicho postulado ético. In re Cuevas Velázquez, 174 D.P.R. 433 (2008). La falta de diligencia en la tramitación de los casos y el incumplimiento con las órdenes constituyen un patrón de conducta sumamente irresponsable. íd. Véanse, además: In re Rosado Nieves, supra; In re Grau Díaz, 154 D.P.R. 70 (2001). El Canon 18 del Código de Ética Profesional, supra, dispone, por su parte, que un abogado tiene que defender los derechos de su cliente de forma diligente, desplegando en cada caso su más profundo saber y actuando con responsabilidad. In re Cuevas Velázquez, supra. Cuando un abogado incumple con las órdenes de un organismo admi-*992nistrativo, falta al deber de mantener notificado a su cliente y, por su descuido o negligencia, expone a este úl-timo a la pérdida de sus derechos, incurre en una violación del Canon 18 del Código de Etica Profesional, supra. Cuando se acepta la representación de un cliente y no se realizan posteriormente las gestiones profesionales adecuadas, se incumple irremediablemente con los postulados más básicos del Canon 18 del Código de Etica Profesional, supra. In re Aguila López, 152 D.P.R. 49 (2000). Sabido es que la representación legal adecuada requiere que se ejerza la profesión con celo, cuidado y prudencia. In re Acosta Grubb, 119 D.P.R. 595 (1987). Una vez el abogado acepta representar a un cliente, tiene la responsabilidad de descargar su labor con rapidez y eficiencia. Id. El Canon 19 del Código de Ética Profesional, supra, exige que el abogado mantenga una comunicación efectiva con su cliente. Consecuentemente, hemos afirmado que esta obligación es separada e independiente de su deber de diligencia y eficiencia. In re Cuevas Velázquez, supra. El citado canon requiere que el abogado mantenga informado a su cliente de las gestiones realizadas y del desarrollo del asunto a su cargo, consultándole cualquier duda sobre asuntos que no caigan en el ámbito discrecional del abogado. In re Acosta Grubb, supra. El abogado debe desplegar sus funciones de forma diligente, de forma tal que evite dilaciones indebidas y mantenga a su cliente informado. El deber de comunicación efectiva es imprescindible en la relación fiduciaria que caracteriza el vínculo abogado-cliente. In re Criado Vázquez, 155 D.P.R. 436 (2001). Se incumple con el Canon 19 del Código de Ética Profesional, supra, cuando no se atienden los reclamos de información del cliente, no se le informa del resultado adverso, no se mantiene al cliente informado del estado o situación procesal del pleito, o se le niega al cliente información de su caso. In re Acevedo Al*993varez, 143 D.P.R. 293 (1997); In re Vélez Valentín, 124 D.P.R. 403 (1989). IV En el caso que nos ocupa, el querellado Pietri Castellón violó los Cánones 6, 12, 18 y 20 del Código de Ética Profe-sional, supra. Un examen del expediente y de la evidencia presentada revela que el licenciado Pietri Castellón incum-plió con varias órdenes de la Junta, cuya omisión provocó la desestimación con perjuicio de dos de las querellas en las que figuraba como representante legal de la señora Roche Rabell. A pesar de ejercer el derecho laboral desde hace más de cuatro décadas en agencias administrativas, el licenciado Pietri Castellón no defendió los intereses de su dienta diligentemente ante la Junta ni desplegó su más profundo saber y habilidad; tampoco se desempeñó al máximo de su capacidad. Todo lo contrario. La desatención de las órdenes de la Junta, no ofrecer la información requerida y no opo-nerse a una moción de desestimación presentada por la O.A.T. constituyeron ciertamente violaciones al Canon 18 del Código de Ética Profesional, supra. No nos convence el argumento del letrado Pietri Castellón dirigido a minimizar su inacción ante las órdenes de la Junta en la querella relacionada con el descuento de un día de sueldo. El que-rellado planteó que, a su juicio, el descuento nunca se rea-lizó, por lo que, si ello ocurriera en el futuro, la quejosa podría presentar eventualmente una nueva querella. Si bien es cierto que el licenciado Pietri Castellón asumió la representación legal una vez las querellas fueron incoadas, no es menos cierto que, de entender que el planteamiento no tenía mérito, debió notificarlo a su dienta y renunciar formalmente a la representación legal en caso de persistir el interés de la quejosa en continuar con la reclamación. In re Flores Ayffán I, 170 D.P.R. 126 (2007). *994El propio licenciado Pietri Castellón admitió que omitió notificar directamente a su dienta de los asuntos importantes de los casos administrativos que nos ocupan. Además, no le informó a su dienta el resultado de éstos y sobre su derecho de revisar las determinaciones adversas. Como circunstancia atenuante, el letrado nos plantea que todas las órdenes y resoluciones fueron notificadas a la Presidenta de la Hermandad. Tal acción no lo exonera de cumplir cabalmente con el Canon 19 del Código de Etica Profesional, supra. La relación abogado-cliente entre la Hermandad y el licenciado Pietri Castellón no aminora, menoscaba o precluye la existente entre éste y la señora Roche Rabell. Es decir, la relación abogado-cliente entre la quejosa y el querellado opera ex proprio vigore y la inobservancia de los deberes que emanan de los cánones del Código de Etica Profesional no se desvanecen ante la satisfacción que pueda tener la Hermandad con los servicios prestados por el licenciado Pietri Castellón. Las actuaciones y omisiones antes relatadas reflejan in-discutiblemente que el licenciado Pietri Castellón violó los Cánones 6, 12, 18 y 19 del Código de Ética Profesional, supra, al no actuar diligentemente, incumplir con las órde-nes de la Junta y no mantener informada directamente a su dienta, lo cual culminó en la desestimación con perjui-cio de dos querellas y la imposiblidad de solicitar revisión judicial en las restantes, las cuales también resultaron ad-versas a la señora Roche Rabell. Todas estas situaciones son atribuidas exclusivamente al abogado y no a su representada. Tampoco responden a los méritos de la causa de acción. V Una vez determinado que el querellado incurrió en una conducta prohibida por el Código de Ética Profesional, nos corresponde imponer la sanción adecuada. *995Al momento de estimar la sanción disciplinaria a un abogado por conducta impropia debemos considerar el historial previo del abogado; si goza de buena reputación; la aceptación de la falta y su sincero arrepentimiento; si la falta fue realizada con ánimo de lucro, y cualquier otro factor pertinente a los hechos. In re Amill Acosta, 181 D.P.R. 934 (2011); In re Rodríguez Lugo, 175 D.P.R. 1023 (2009). Para ello, recordamos que este Tribunal no está obli-gado a aceptar la recomendación del informe de la Comi-sionada Especial, ya que podemos adoptarlo, modificarlo o rechazarlo. De ordinario, sostenemos sus conclusiones de hecho, salvo que se demuestre prejuicio, parcialidad o error manifiesto. In re Gordon Menéndez I, 171 D.P.R. 210, 217 (2007). Del expediente del licenciado Pietri Castellón surge que esta es la primera querella presentada en su contra en casi cincuenta años en la práctica de la abogacía. Asimismo, el abogado goza de una buena reputación. Aunque cierta-mente el togado no fue el primer representante legal de la señora Roche Rabell y, en consecuencia, no fue quien pre-paró las querellas originales, no podemos ignorar que los hechos que dan lugar a las violaciones éticas son atribui-dos exclusivamente a las actuaciones del letrado. El abo-gado no presentó justificación a sus incumplimientos y omisiones en el foro administrativo. No obstante, coincidimos y le brindamos deferencia a la recomendación brindada por la honorable Comisionada Especial, toda vez que del expediente y de la prueba desfilada surgen atenuantes adicionales a los previamente señalados. En primer lugar, el licenciado Pietri Castellón ha aceptado las omisiones señaladas y ello constituye ciertamente un atenuante a considerar al momento de sancionar a un abogado. In re Vilches López, 170 D.P.R. 793, 801 (2007). En segundo lugar, no nos encontramos ante una conducta impropia producto del ánimo de lucro. Final-*996mente, no surge prueba de perjuicio económico alguno su-frido por la quejosa. Este Tribunal ha sido consecuente en limitarse a amo-nestar o censurar a los abogados que incurren por primera vez en faltas similares a las imputadas al licenciado Pietri Castellón, al tomar en cuenta que han gozado de buena reputación en cuanto a sus funciones como abogados y de que se trata de un primer hecho aislado. In re Delannoy Solé, 172 D.P.R. 95 (2007); In re Alonso Santiago, 165 D.P.R. 555 (2005); In re Criado Vázquez, 155 D.P.R. 436 (2001). Por tratarse de un incidente que, aunque involucra a una sola dienta, está relacionado con varios casos adminis-trativos, consideramos insuficiente una mera amones-tación. En vista de lo anterior, censuramos enérgicamente la conducta del Ledo. Norman Pietri Castellón y le aperci-bimos de que, si incurre nuevamente en una conducta con-traria a los cánones del Código de Etica Profesional que rigen la profesión de la abogacía, será sancionado rigurosamente. Notifíquese personalmente esta Opinión “per curiam” al Ledo. Norman Pietri Castellón por la Ofi-cina del Alguacil de este Tribunal. Se dictará Sentencia de conformidad. El Juez Presidente Señor Hernández Denton no intervino. (1) En su querella, la señora Roche Rabell también adujo que el licenciado Pietri Castellón la representó en la querella Q-02-22. No obstante, según consta en una certificación de la Hermandad de Empleados de la Rama Judicial (Hermandad), dicha querella no se referió al letrado.

01-03-2023

11-23-2022

https://www.courtlistener.com/api/rest/v3/opinions/996321/

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 97-2534 In Re: ELVIRA M. WHITE _________________________ ELVIRA M. WHITE, Plaintiff - Appellant, versus DISCIPLINARY COMMITTEE OF THIS COURT, UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND, Defendant - Appellee. Appeal from the United States District Court for the District of Maryland, at Baltimore. J. Frederick Motz, Chief District Judge. (CA-97-170) Submitted: August 31, 1998 Decided: September 17, 1998 Before WIDENER and WILKINS, Circuit Judges, and HALL, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Elvira M. White, Appellant Pro Se. Stephen Joseph Immelt, HOGAN & HARTSON, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Elvira M. White appeals the order of the United States Dis- trict Court for the District of Maryland indefinitely suspending her from practicing law before that court. We have reviewed the record and the district court’s opinion accepting the disciplinary committee’s recommendation and find no abuse of discretion. Accord- ingly, we affirm on the reasoning of the district court. White v. Disciplinary Comm., No. CA-97-170 (D. Md. Oct. 1, 1997). We dis- pense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 2

01-03-2023

07-04-2013

https://www.courtlistener.com/api/rest/v3/opinions/3453015/

Affirming. Appellant was convicted of maliciously shooting and wounding one F. Martin with intent to kill, and sentenced to three years' confinement in the penitentiary. He has appealed to this Court, urging as grounds for reversal, (1) That the jury should have been peremptorily instructed to find him not guilty, and (2) that his attorney became ill during the trial and was unable to properly present or argue the case to the jury. The evidence presented to us in narrative form shows that appellant approached Martin, who was unarmed, and provoked an altercation by asking who had told him that appellant had said anything about him. Martin, who was working with a jack, either tried to kick the handle out of it and was shot while doing so, or, as related by appellant, succeeded in removing the handle and drew it back as though he intended to strike appellant. Whether appellant shot in his necessary, or apparently necessary, self-defense was clearly a question for the jury. The affidavit filed in support of the motion for a new trial is not in the record. All that appears in connection with the second ground urged is the statement in the Bill of Exceptions: *Page 289 "The attorney for the defendant because of his illness was not able to argue the case except to just say a few words from his seat, and the case was then vigorously argued by the Commonwealth." Both parties had announced ready for trial; no motion for a continuance was made at any stage of the proceedings; and there is nothing to indicate that appellant's rights were in any manner prejudiced. Judgment affirmed.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3453027/

Affirming. This is an appeal from a judgment of the Campbell circuit court sitting in equity. On July 6, 1926, the board of council of the city of Dayton duly accepted a street improvement and passed the necessary ordinance levying a special assessment to pay its cost. The sum of $581.04 was apportioned to the property of one Frank Grimes, and a warrant in this amount was issued to the contractor. On January 20, 1927, Grimes executed a note to the Campbell County Bank in the sum of $582, and simultaneously with the execution of the note the bank purchased the apportionment warrant from the contractor and held it as collateral security on the obligation of Grimes. Thereafter various payments were made, and renewal notes were from time to time executed and delivered, until, on December 2, 1933, the obligation had been paid down to the principal sum of $350. On August 16, 1929, Grimes executed a note and a mortgage on the real estate, already in lien under the apportionment warrant, in the sum of $625, to the appellant, Ideal Savings, Loan Building Association of Newport, Ky. A second note in the sum of $375 and a third note of like amount were executed and delivered by Grimes to the appellant on November 1, 1929, and January 9, 1930, respectively, and the mortgage of appellant was extended to cover these additional advancements. On February 14, 1934, Grimes died intestate. This suit was commenced by appellant on April 7, 1934, for the purpose of foreclosing its mortgages on the property. The appellee, Campbell County Bank, was made a party defendant, and filed an answer and cross-petition, in which it asked that its lien in the sum of $350 be enforced prior to that of the appellant. The court adjudged the sale of the property and also that the lien of the appellee was superior to that of the appellant. It is urged by the appellant that the claim of appellee was barred by limitation under section 2515 of the Kentucky Statutes, and this is the only point seriously debated. It is clear that a plea of the statute of limitations *Page 780 would not be available to Grimes, the property owner, against the claim of the Campbell County Bank, in view of the fact that he made regular and repeated payments to the bank up to December 2, 1933. Whether the bank credited the payments made on its note or on the apportionment warrant does not seem to us to be material. The warrant certainly was not extinguished by its purchase from the contractor. That the bank required Grimes to execute a note neither added to nor detracted from its efficacy. The appellant here stands in no better position than its mortgagor. The lien of the warrant was in full force when it advanced money to Grimes on the security of his property, and it does not even deny that it had actual notice (in addition to constructive notice) of the existence of appellee's lien when it made its second and third advancements to the property owner. Appellant took its mortgages on the property subject to the lien, and the effect of sustaining its present contention would be to increase the security of its loans by wiping out a charge against the property which Grimes himself could not do. The circuit court did not err in sustaining a demurrer to its plea of limitations. No element of an estoppel is present which would justify the application of a more favorable rule to appellant than to its grantor. It was in no way injured by the payments made on the warrant, for each payment thereon increased its own security pro tanto. It advanced no funds on the faith of the release of appellee's lien. In fine, it was not, as to appellee, a purchaser for value and without notice or entitled to any defense denied its grantor. Sustaining the lien of appellee can in no way be prejudicial to appellant's rights. Judgment affirmed.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3453030/

Affirming. This case is a companion of Johnson v. Commonwealth, 245 Ky. 146, 53 S.W.2d 343 and Triplett v. Commonwealth, 245 Ky. 167, 53 S.W.2d 345. The appellant, Irton Caudill, was a member of a group of young men charged with the murder of Tom Lucas, a deputy sheriff of Knott county, pursuant to a conspiracy and also as an aider and abettor of Johnson. *Page 712 The facts will be found in the two opinions referred to. This appellant, Virgil Caudill, and Shelby Hall were tried together, found guilty of voluntary manslaughter, and each sentenced to two years in the penitentiary. It was made to appear that the latter two defendants were under the age of seventeen years, and the verdict was set aside as to them because there had been no hearing in the juvenile court. So only Irton Caudill appeals. There is little difference between this and the other records. We look to the record with particular reference to the acts of the appellant. He claimed that on the journey to the point of the homicide he got on a mule behind Commodore Huff and left the other members of the party; that he had thus ridden within a short distance of the place and was there when the others came up. That is not certain. A witness testified that near John Slone's store on the way she heard the boys talking among themselves and that the appellant was with them. Their statements were to the effect that they intended to rescue their friends, Merlin Triplett and Lark Huff, who had been arrested and were in the custody of Lucas and other officers. The evidence for the commonwealth is to the effect that, as Lucas approached Johnson with notice that he was placing him under arrest, the appellant and the other boys crowded in and around them, as detailed in the other opinions, and that the appellant then drew his pistol. Appellant testified that he did not believe he drew his pistol, but perhaps did make a pass to get it when the shots were fired by Johnson because he was scared. His defense was that he was acting as a peace-maker and endeavoring to get Johnson to surrender his pistol to him while officer Slone was trying to obtain its possession. The evidence regarding this defendant, like the other two, is sufficient to sustain the verdict. The instruction authorizing an acquittal of the defendants on the ground of self-defense or the defense of other members of the group was qualified by the provision that the jury should not so find if they should believe and find as set out in instruction No. 5. That instruction defined the right and duty of the deceased as a peace officer to arrest Johnson and the other members of the group under a warrant or for committing the offense of public drunkenness, breach of the peace, *Page 713 or carrying concealed a deadly weapon in his presence, and that of the corresponding duties of the defendant and his companions. The deceased officer did have warrants in his possession for several members of this group, including one for the appellant. There was ample evidence they were committing a public offense in the officer's presence. It is said, however, that there was no evidence tending to show that he was attempting to arrest the appellant. The evidence is to the effect that, as Lucas approached the group, he told Johnson that he had a warrant for him, and was in the act of reaching in his pocket where he had such a process, as well as the other warrants, when the others gathered around and he was shot by Johnson. It all happened so quickly that the officer did not have time to call each man by name, but the inference is reasonably deducible of a purpose to arrest all of them and that he was hindered from doing so by the concerted action of the group. The form of the instruction seems to have been influenced by the provisions of section 7 of chapter 100, Session Acts of 1920 (section 1148a-7, Statutes), declaring forcible resistance of a peace officer to constitute a felony, which was held to be unconstitutional in Loveless v. Commonwealth, 241 Ky. 82, 43 S.W.2d 348, 349. But the form was not prejudicial in this instance, and, as was indicated in the other opinions, the instruction was more favorable to the defendant than the facts justified, for the court might also have qualified the instruction on self-defense and defense of his associates by depriving him of that right on the ground that the killing was pursuant to a conspiracy by the parties, or that the defendant and his associates brought on the difficulty. Wherefore the judgment is affirmed.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3453031/

Reversing. In this action for personal injuries by Lemon Leger, an infant suing by his next friend, against Lester Rollyson and A. Rollyson, partners doing business under the firm name of A. Rollyson Co., and Lester Rollyson, the trial court directed a verdict in favor of the defendants, and plaintiff appeals. Though the defenses of contributory negligence and assumed risk were not available, inasmuch as appellees *Page 803 were affected by the provisions of the Workmen's Compensation Act (Ky. Stats., sec. 4880 et seq.), and had not elected to operate thereunder, it was necessary for appellant to prove actionable negligence before he could recover. Horse Creek Mining Co. v. Frazier's Adm'x. 224 Ky. 211, 5 S.W.2d 1064. The proper determination of this question will necessitate a review of the evidence, which may be summarized as follows: Rollyson Co. were engaged in the manufacture of staves in Whitley county, and Lester Rollyson was the sole owner of the business. One of the principal steps in the manufacturing was the equalizing of the stave bolts. The equalizer consisted of two 36-inch saws, 3 feet apart, and set on edge on a drum. The saws were used to cut the ends off the stave bolts, and make the bolts of equal length. The stave bolts were approximately 40 inches long, and to equalize them were placed on a shaft or swing and held by a hook, and pushed forward by hand between the saws. Just prior to the accident, appellant, who was about 17 years of age, was engaged in carrying strips, and his place of work was about 30 or 40 feet from the equalizer. In the absence of their employer, the men in the mill were under the direction and control of the head sawyer. The work of equalizing was performed by Bill Chandler and Harvey Hill, one of whom had gone for a drink. Claiming that he acted pursuant to an order of the head sawyer, appellant carried two stave bolts to the equalizer and equalized them. He then carried the third bolt, in the end of which was a knot. The bolt was slipping, and, when he reached to get it with the other hand, it jumped so that it threw his hand into the saw and injured his fingers. The first question to be determined is whether appellant was authorized by the direction of the sawyer to do the work of equalizing. At first he testified that Edwards, the head sawyer, said, "Go down and help carry those up." Afterward his evidence was as follows: "Q. 19. And when you went around were these men Harvey Hill and Mr. Chandler near the equalizers? A. No, when I went around they were having to carry them so far, Harvey Hill went to get a drink and when he got back Arch Edwards told us to go carry them bolts up and when he got back I was carrying them to the equalizers. *Page 804 "Q. 20. Arch Edwards told you to go carry the bolts up they were so far away from the equalizers? A. He said, 'Go around and help the equalizers.' "Q. 21. I understood you to say he told you to go around and help carry the stave bolts up? A. He didn't say go around and carry them up, he said to go around and help them. "Q. 22. Didn't I understand you to say, young man, that he told you to go around and carry the stave bolts up? A. They were away at a distance and he said to go around and help them. "Q. 23. Up to the time you got hurt and before that time, who had been carrying these bolts up and putting them into these saws? A. Well, Bill Chandler and Harvey Hill they had been using them. And they were using the closest ones but they got off so far away from them that they couldn't carry them up fast enough and keep up. "Q. 24. I take it you went and got a bolt and put it in the saw? A. Yes, sir. "Q. 25. And got another bolt and put it in the saw? A. Yes, sir. "Q. 26. And when you got the third bolt that's when you got hurt? A. Yes, sir. "Q. 27. Did you hear Harvey call to you and tell you to get away from those saws? A. No, sir. "Q. 28. Did you hear him say, 'Don't do that?' A. No, sir. "Q. 29. Now I wish you would tell the jury just the very words now that Arch Edwards said to you on that occasion? A. Well, he says, 'Get around there, boys, and get to helping them' he says, 'we can't let this thing stop.' "Q. 30. Was that all he said? A. Yes. "Q. 31. Then he didn't say to you to take up the stave bolts, did he? A. No, sir. "Q. 32. And he didn't tell you to put them in those saws, did he? A. No. "Redirect Examination. "By I.N. Steely: Q. 1. He did tell you to help the equalizers? A. He told us to help the equalizers, yes. *Page 805 "Q. 2. Well, you were helping them? A. Yes, sir. "Q. 3. And doing what you understood he told you to do? A. Yes, sir. "Q. 4. How close was Edwards to you when he told you to do that? A. In 10 feet. "Q. 5. In plain view of you? A. Yes, sir. "Q. 6. Did he say anything to you not to do that when you went to help the equalizers? A. No, sir. "Q. 7. How much were they paying you? A. $2.00 a day. "Recross-Examination. "By J.J. Tye: Q. 1. Who, if anyone, went around to the place with you at the time you say you went there to bring up those bolts? A. Well, my father and Ballard Widner and all of them that wasn't busy. "Q. 2. Did anybody put any in the equalizer besides you? A. Yes, sir. "Q. 3. At the same time? A. Not at the same time, just take time about. "Q. 4. And how close was your father to you when you say you put these stave bolts or this stave bolt in? A. He was just out there getting another block, fixing to carry it up there." Arch Leger, father of appellant, testified that, when they got behind with the equalizing, other hands were assigned to go help the equalizers. Ballard Widner testified that Edwards, the head sawyer, said, "Boys, we're behind; let's all pick up a while and kindly catch up," By "pick up" he meant to cut the blocks off — equalize them. Each man would then go back, get a bolt, and put it through the equalizer. He heard Arch Edwards tell the boy to go around there. Appellees insist that the language employed by the head sawyer was not a direction to do the actual work of equalizing; it being argued that the evidence shows that the men employed at that work had to go too far for the stave bolts, and that all that the head sawyer meant was for the other men to assist in the work by bringing the stave bolts to a point where the equalizers could get them without having to go so far. The argument is persuasive, but *Page 806 not so convincing that we can say as a matter of law that such was the effect of the head sawyer's order. What he said must be construed in the light of the circumstances, and of the practice and understanding among the men. The others understood the direction as an order to get the stave bolts and do the actual work of equalizing, and immediately proceeded to do the work in that way in the presence of the head sawyer. Appellant had been at work there for only a short time, and, having heard the direction of the head sawyer and seen the men act thereon and do the work of equalizing, we are constrained to the view that it was for the jury to say, in the light of all the facts, whether the head sawyer meant for appellant to do the work of equalizing, or merely to carry the stave bolts to the equalizers. The next question for consideration is whether there was sufficient evidence of negligence to take the case to the jury. The petition charged gross carelessness and negligence on the part of the defendants, its agents and servants, in placing appellant, who was an infant 17 years of age, to work at equalizing stave bolts, which was handling timber in front of two 36-inch saws, which were exposed, unprotected, and not properly rigged. The statute imposes upon the owner of any manufacturing establishment where any person under 21 years of age is employed, the duty properly to guard all vats, pans, saws, and machinery of every description which is palpably dangerous. Ky. Stats., sec. 331a-10. We have ruled that the statute does not require the guarding of a circular saw where it is impossible to do so. McCoy v. Griffith, 196 Ky. 406,244 S.W. 871. Appellees insist that this was the situation with respect to the saw in question; the argument being that, unless there was an opening for the stave bolts, the sawing could not be done. The only evidence on the question is that given by appellant's father, who testified as follows: "Q. 12. These saws had to be open to put the bolts into the saws at the arms? A. There could have been a sling put in over it to keep it from jumping when it come in. Could have been guards to hold the bolts on it and to keep anybody from getting their hands in the saws. "Q. 13. They couldn't have cut the bolts off then, could they? A. Yes, sir, could have fixed the *Page 807 guard to work behind the saw that would have saved anybody from hitting the saw with their hands." Without anticipating what would be the effect of additional evidence on the question, we cannot, in view of the foregoing evidence, hold as a matter of law that it was not possible to guard the saws. On the contrary, we are forced to rule that the evidence was sufficient to take the case to the jury. It follows from what has been said that the court erred in directing a verdict in favor of appellees. Judgment reversed, and cause remanded for a new trial consistent with this opinion.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3453033/

Reversing. This is an appeal from a judgment of the Harlan circuit court setting aside an award of the Workmen's Compensation Board which denied to appellees any compensation for the death of their decedent, A.J. Brock, and in lieu thereof awarding to the appellees such compensation based on an apportionment of 50 per cent. due to the accident and 50 per cent. due to a pre-existing disease. The Compensation Board in its award said: "The board, after carefully considering all the evidence in this case, is of the opinion that the preponderance of testimony shows that the deceased's death was not the result of an injury." *Page 224 This is a finding of fact that any injury which Brock in his lifetime sustained while in the employ of the appellant had nothing to do with his death. The finding might have been clearer had it said that the deceased's death was not the result in whole or in part of an injury. But, fairly read, that is just what the finding as made by the board means. It is in this that this case is distinguishable from that of South Mountain Coal Co. v. Haddix, 213 Ky. 568, 281 S.W. 493, for there the board made no finding of fact at all, as the opinion says. Here the board did make a finding of fact that any injury Brock received had nothing to do with his death. The board having made this finding, if there was any competent and relevant evidence to support it, it is final and conclusive, as appellees concede. The medical testimony offered by the appellant supports the finding. It is therefore final and conclusive. It results that the judgment of the Harlan circuit court setting aside the award of the board is erroneous. It is therefore reversed, with instructions to enter a judgment affirming the award of the board. Whole court sitting.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/2670476/

Present: All the Justices VIRGINIA MARINE RESOURCES COMMISSION OPINION BY v. Record No. 130239 JUSTICE LEROY F. MILLETTE, JR. April 17, 2014 CHINCOTEAGUE INN, ET AL. FROM THE COURT OF APPEALS OF VIRGINIA In this appeal we consider whether the Court of Appeals erred in holding that the Virginia Marine Resources Commission lacked authority under Virginia law to regulate the expansion of the Chincoteague Inn's restaurant operations onto a floating platform secured alongside its building and situated partially over state-owned subaqueous bottomland. I. Facts and Proceedings A. Relevant Facts The Chincoteague Inn is a restaurant that sits adjacent to the Chincoteague Channel in the town of Chincoteague, Virginia. In late April and early May 2010, the Inn lashed together two steel barges, held the barges in place, and connected those barges to the Inn by way of a gangway to create a floating platform. Later, in June 2010, the Inn removed one of those barges and the floating platform was resituated alongside the Inn. The Inn intended to keep the floating platform positioned alongside its building to be used as part of the Inn's restaurant sitting and dining area for approximately four months until September 2010. The Inn's plans were interrupted when an unidentified competitor complained to the Virginia Marine Resources Commission that the Inn had added a "large floating platform" alongside the Inn's building structure. On June 11, Commission staff member George H. Badger followed up on this tip and conducted an onsite inspection. Mr. Badger ascertained that, while a portion of the floating platform was situated above a man-made boat basin, a 54-foot long by 13.6-foot wide portion of the floating platform was situated above state-owned subaqueous bottomland. Based on Mr. Badger's determination that a portion of the floating platform was situated over state-owned subaqueous bottomland, the Commission concluded that it had jurisdiction over that portion of the platform. Further, the Commission categorized this 54-foot by 13.6-foot portion of the floating platform as unauthorized and requiring removal. The Commission notified the Inn of this determination by a written Notice to Comply and demanded immediate removal of the unauthorized portion within 10 days. The Notice further warned the Inn that failure to comply would result in the matter being placed before the full Commission for an enforcement action, and that monetary penalties may be imposed. 2 The Inn, through its manager Raymond Britton, responded to the Commission's letter by submitting a joint permit application that requested an after-the-fact permit for the entire floating platform. The Commission, believing it inappropriate to act upon this application while a violation was ongoing, sent a letter to the Inn that again demanded removal of the unauthorized portion of the platform. On June 28, the Commission undertook another site inspection and found that the 54-foot by 13.6-foot portion of the floating platform had not been removed. B. Relevant Proceedings The full Commission heard the enforcement action against the Inn, voted in favor of the enforcement request, and found that the 54-foot by 13.6-foot portion of the floating structure constituted an unlawful use of state-owned submerged lands pursuant to Code § 28.2-1203. The Commission directed removal of that portion of the floating platform within 10 days. The Inn timely appealed the Commission's decision to the Circuit Court of Accomack County pursuant to Code § 2.2-4026, Rule 2A:2, and Rule 2A:4. The Inn challenged the Commission's decision on three points: (1) that the Commission failed to make express findings of fact required to allow a court to review an agency's actions, (2) that the Commission failed to make findings of fact based on the required substantiality of 3 the evidence, and (3) that the Commission lacked jurisdiction over the floating platform under Virginia state law, and that federal maritime law governed the floating platform. The circuit court focused on this third argument to dispose of the case. In a final decree, the circuit court found that the floating platform was a "vessel" and that the Commission lacked jurisdiction to require removal of the floating platform. The final decree was unclear about whether this decision rested upon a determination that Virginia state law does not authorize the Commission to exercise jurisdiction over the floating platform, or upon a determination that federal maritime law preempts any such Virginia state law. The circuit court then set aside the Commission's decision, dismissed with prejudice the Commission's enforcement action, and awarded approximately $14,000 in fees and costs to the Inn. The Commission timely appealed to the Court of Appeals. A three judge panel concluded that the Commission admitted that it failed to preserve the issue about whether the floating platform was a "vessel," and noted that the Commission had conceded that the structure was indeed a "vessel." Virginia Marine Res. Comm'n v. Chincoteague Inn, 60 Va. App. 585, 590, 731 S.E.2d 6, 8 (2012). The panel, however, also held that under the facts of this case federal maritime law did not preempt the Commission's authority to order the removal of the 4 floating platform over state-owned submerged lands. Id. at 599, 731 S.E.2d at 12. The panel therefore reversed the circuit court, vacated the award of fees and costs because the parties agreed that the court's award of fees and costs to the Inn "rises or falls" with the resolution of the other issues on appeal, and remanded the case back to the circuit court to determine whether Virginia state law authorized the Commission to issue its enforcement decision. Id. at 591 n.2, 599, 731 S.E.2d at 8 n.2, 12-13. The Court of Appeals granted the Inn's petition for a rehearing en banc and stayed the panel decision's mandate. Virginia Marine Res. Comm'n v. Chincoteague Inn, 60 Va. App. 719, 720, 732 S.E.2d 45, 46 (2012) (en banc). In its en banc opinion, the Court of Appeals observed that the Commission conceded the issue that the floating platform was a "vessel." Virginia Marine Res. Comm'n v. Chincoteague Inn, 61 Va. App. 371, 375 n.1, 735 S.E.2d 702, 704 n.1 (2013) (en banc). Thus, the Court of Appeals first addressed the preliminary issue of whether Virginia state law authorized the Commission to exercise jurisdiction over the floating platform before reaching the subsequent issue of federal preemption, and held that the Commission could not exercise jurisdiction over the Inn's floating platform pursuant to Code § 28.2-1203. Id. at 380-81, 385-87, 735 S.E.2d at 707, 709-10. The en banc 5 decision by the Court of Appeals affirmed the circuit court's determination that the Commission lacked jurisdiction and accordingly affirmed the circuit court's award of fees and costs to the Inn. Id. at 387, 735 S.E.2d at 710. The Commission timely filed a petition for appeal with this Court. C. Assignments of Error Upon appeal, our review considers three logically distinct legal issues. First, whether Code § 28.2-1203(A) permits the Commission to regulate the floating platform. Second, whether federal maritime law applies to the floating platform because it is a "vessel" under 1 U.S.C. § 3. Third, whether, if both Code § 28.2-1203(A) and federal maritime law apply to the floating platform, state and federal law may simultaneously govern that floating platform or if federal maritime law preempts Code § 28.2-1203(A). The Court of Appeals in its en banc decision addressed the first two of these issues. It did not reach the third issue of federal preemption. Virginia Marine, 61 Va. App. at 387, 735 S.E.2d at 710. In this appeal we address the assignments of error and the arguments of the parties to the extent they direct us to evaluate the following: 1. Whether the Court of Appeals erred in determining that the Commission lacked jurisdiction to regulate the floating platform under Code § 28.2-1203(A). 6 2. Whether the Commission can withdraw its concession that the floating platform is a "vessel" as defined under 1 U.S.C. § 3. II. Discussion A. Standard of Review This appeal requires us to resolve issues of constitutional interpretation and statutory construction. We resolve these purely legal issues de novo. L.F. v. Breit, 285 Va. 163, 176, 736 S.E.2d 711, 718 (2013). This appeal involves an administrative agency. Typically, we give deference to the decisions of administrative agencies when those decisions "fall within an area of the agency's specialized competence." Virginia Dep't of Health v. NRV Real Estate, LLC, 278 Va. 181, 185, 677 S.E.2d 276, 278 (2009). "However, when an issue involves a pure question of statutory interpretation, that issue does not invoke the agency's specialized competence but is a question of law to be decided by the courts." Alliance to Save the Mattaponi v. Commonwealth Dep't of Envtl. Quality, 270 Va. 423, 442, 621 S.E.2d 78, 88 (2005). For those same reasons, we hold that no agency has specialized competence in the purely legal issue of interpreting the Constitution of Virginia. See Browning-Ferris Indus. v. Residents Involved in Saving the Env't, 254 Va. 278, 284 492 S.E.2d 431, 434 (1997); Sims Wholesale Co. v. Brown- Forman Corp., 251 Va. 398, 404, 468 S.E.2d 905, 908 (1996). We 7 therefore afford the Commission's determination no deference when resolving the issues in this appeal. B. The Commonwealth's Sovereign Authority Over State-Owned Subaqueous Bottomland The focus of this appeal is the operation of Code § 28.2- 1203(A). It is our "duty" to "constru[e] a statute to avoid any conflict with the Constitution" of Virginia and the United States Constitution. Commonwealth v. Doe, 278 Va. 223, 229, 682 S.E.2d 906, 908 (2009); Jeffress v. Stith, 241 Va. 313, 317, 402 S.E.2d 14, 16 (1991); see also Town of Victoria v. Victoria Ice Light & Power Co., 134 Va. 134, 139, 114 S.E. 92, 93 (1922) ("Of course [a] statute must be construed as subordinate to . . . pertinent sections of the Constitution [that are] inconsistent therewith."). This is true even when the statute's plain language is unambiguous and not absurd. See, e.g., Elizabeth River Crossings OpCo, LLC v. Meeks, 286 Va. 286, 319-20 & n.7, 749 S.E.2d 176, 193 & n.7 (2013). It is therefore pertinent to review the constitutional context in which Code § 28.2-1203(A) arises before addressing the plain language of that statute. 1. The Basis for the Commonwealth's Sovereign Authority Over State-Owned Subaqueous Bottomland Under the common law of England, the sovereign Crown held title to and exercised dominion over all tidal waters and tidal bottomland below the high water line located within England's 8 geographic jurisdiction. Shively v. Bowlby, 152 U.S. 1, 11-14 (1894). The geographic scope of this authority expanded as English colonists began to claim land on the North American continent, so that the Crown's title and dominion extended to the tidal waters and tidal bottomland in America. Id. at 14. After the American Revolution, this title and dominion formerly belonging to the English sovereign was claimed by the individual Thirteen Colonies who had, through the Constitutional Convention, become sovereign states. See id. at 14-16; see also Alden v. Maine, 527 U.S. 706, 714-15 (1999) (discussing the "residuary and inviolable sovereignty" retained by the states pursuant to this Nation's constitutional design). However, in light of this Nation's unique system of dual sovereignty, the scope of the Commonwealth's sovereign authority over subaqueous bottomland is no longer governed, or necessarily informed, by the common law of England. See Martin v. Lessee of Waddell, 41 U.S. (16 Pet.) 367, 410-11 (1842) ("A grant [of subaqueous bottomland to a private entity] made by [a state sovereign] must therefore manifestly be tried and determined by different principles from those which apply to grants of the British [C]rown, when the title is held by a single individual in trust for the whole nation."); see, e.g., Idaho v. Coeur d'Alene Tribe, 521 U.S. 261, 285-86 (1997) (distinguishing English common law and recognizing that state 9 sovereign authority extends to waterways and subaqueous bottomland regardless of whether those environs are affected by the tide). As a state sovereign, the Commonwealth retains an "absolute right to all [its] waters, and the soils under them, for [its] own common use." Martin, 41 U.S. (16 Pet.) at 410. Indeed, the title to and dominion over subaqueous bottomland is "an essential attribute" of the Commonwealth's state sovereignty. Idaho, 521 U.S. at 283; see also 43 U.S.C. § 1311 (confirming that state sovereigns retain title to and dominion over "the lands beneath navigable waters within the boundaries of the respective States, and the natural resources within such lands and waters"). This sovereign power is limited only by that authority surrendered to the federal sovereign in the United States Constitution. Martin, 41 U.S. (16 Pet.) at 410. 2. The Scope of the Commonwealth's Sovereign Authority Over State-Owned Subaqueous Bottomland The Constitution of Virginia directs the General Assembly to "undertake the conservation, development, or utilization of lands or natural resources of the Commonwealth, . . . and the protection of its atmosphere, lands, and waters from pollution, impairment, or destruction." Va. Const. art. XI, § 2. The General Assembly has affirmed the continued existence of the Commonwealth's sovereign authority over state-owned subaqueous 10 bottomland, as that authority derives from the English common law. See Code § 1-200. Moreover, the General Assembly has defined the scope of that sovereign authority so that it extends to "[a]ll the beds of the bays, rivers, creeks[,] and the shores of the sea within the jurisdiction of the Commonwealth" unless such subaqueous bottomland has been "conveyed by special grant or compact according to law." Code § 28.2-1200. 1 As we previously explained, the Commonwealth's sovereign authority over public environments, including subaqueous bottomland, has two facets. First, the Commonwealth retains the right of jus publicum, "the right of jurisdiction and dominion for governmental purposes." Commonwealth v. City of Newport News, 158 Va. 521, 546, 164 S.E. 689, 696 (1932). This is the Commonwealth's sovereign authority to hold the public domain "for the interest or benefit . . . of the public." 2 G. L. Webster Co. v. 1 The Commonwealth has ceded its sovereign authority to the owners of subaqueous bottomland that rests above the mean low- water mark, and to the owners of subaqueous bottomland beneath creeks and rivers comprised within the limits of a lawful survey. Code § 28.2-1202. Also, we have previously observed that the General Assembly "chose not to include 'lakes' in its designation of bodies of water whose beds remain the property of the Commonwealth in the absence of a special grant or compact." Smith Mountain Lake Yacht Club, Inc. v. Ramaker, 261 Va. 240, 246, 542 S.E.2d 392, 395 (2001). 2 The right of jus publicum has sometimes been termed the "trust" or "public trust" theory by other courts and commentators. Although we have sometimes used that 11 Steelman, 172 Va. 342, 357, 1 S.E.2d 305, 311 (1939). The jus publicum contains within it, as "inherent" and "inseparable incidents thereof," certain "rights of the people." Newport News, 158 Va. at 546, 164 S.E. at 696-97. Second, the Commonwealth retains the right of jus privatum, "the right of private property" retained by the Commonwealth because it is "proprietor" of the public domain that has not been lawfully conveyed. Id. at 546, 164 S.E. at 696. This is the Commonwealth's authority to act "in a proprietary capacity" because it also has "the right and title of a private owner." G. L. Webster Co., 172 Va. at 357, 1 S.E.2d at 311. The Commonwealth retains "a most solemn duty to [both] administer the jus privatum of the [Commonwealth] and to exercise its jus publicum for the benefit of the people." City of Newport News, 158 Va. at 549, 164 S.E. at 697. In the exercise of its right of jus privatum, it is a constitutional imperative that the Commonwealth cannot "relinquish, surrender, alienate, destroy, or substantially impair" the right of jus publicum, or the rights of the people inherent to the jus terminology, using it in today's opinion would not clarify the analysis. City of Newport News, 158 Va. at 539-40, 164 S.E. at 695 ("It is questionable whether the interposition of the conception of a trust in these cases serves any useful purpose or tends to clarity of thinking or correctness of decision."). 12 publicum, except as authorized by the Constitution of Virginia. Id. at 546-49, 164 S.E. at 696-97. 3 However, whether an activity is a right of the people inherent to the jus publicum is a matter of Virginia common law subject to the Constitution of Virginia and the General Assembly's modification by statute. See, e.g., id. at 549-52, 164 S.E. at 698-99 (ascertaining whether fishery is a public right inherent to the jus publicum under Virginia common law); Stokes & Smith v. Upper Appomatox Co., 30 Va. (3 Leigh) 318, 337 (1831) (Brooke, J.) (observing that a particular activity was a public right inherent to the jus publicum because it was "expressly granted" by legislative acts of the General Assembly); see also Kraft v. Burr, 252 Va. 273, 276-77, 476 S.E.2d 715, 716-17 (1996) (state law determines to what degree the jus publicum restricts a sovereign's right to convey subaqueous bottomland to a private party). It is within this constitutional context that we construe the plain language of Code § 28.2-1203(A). 3 This imperative arose by implication from the 1902 Constitution of Virginia. City of Newport News, 158 Va. at 546-47, 164 S.E. at 696-97. Nothing suggests that the 1971 Constitution of Virginia disposed of that constitutional implication, and it survives today. 13 C. Whether Code § 28.2-1203(A) Allowed the Commission to Regulate the Floating Platform 1. Construing Code § 28.2-1203(A) The Commission's geographic jurisdiction includes "the Commonwealth's territorial sea and extend[s] to the fall line of all tidal rivers and streams except in the case of state- owned bottomlands where jurisdiction extends throughout the Commonwealth." Code § 28.2-101. The Commission's jurisdiction therefore extends to the state-owned subaqueous bottomland over which the Inn's floating platform was situated. The question before us is whether the General Assembly empowered the Commission to regulate the Inn's floating platform because that platform was engaging in either a "trespass" or "encroach[ment]" under Code § 28.2-1203(A). The General Assembly has made it "unlawful for any person to build, dump, trespass[,] or encroach upon or over [subaqueous bottomland that is] the beds of the bays, ocean, rivers, streams, or creeks which are the property of the Commonwealth, unless such act is performed pursuant to a permit issued by the Commission or is necessary for" various enumerated exceptions. Code § 28.2-1203(A). 4 Engaging in such 4 Code § 12.2-1203(A) is a valid exercise of the right of jus privatum as falling within the Commonwealth's proprietary capacity as the entity retaining the right and title to the subaqueous bottomland. See Montgomery v. Commonwealth, 99 Va. 833, 835, 37 S.E. 841, 842 (1901) (owner of private property 14 an unlawful act is a Class 1 misdemeanor. Code § 28.2-1203(B). The Commission has authority to undertake inspections, issue orders, and apply for injunctions to ensure compliance with this statutory prohibition of unlawful building, dumping, trespassing, or encroaching upon or over the Commonwealth's subaqueous bottomland. Code §§ 28.2-1211; 28.2-1212. Code § 28.2-1203(A) is not ambiguous. See Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87 (1985) (listing factors indicating that statutory language is ambiguous). Accordingly, we apply the plain language of the statute. Boynton v. Kilgore, 271 Va. 220, 227, 623 S.E.2d 922, 925-26 (2006). Additionally, because the statute's terms are undefined, those words are given their "ordinary meaning," in light of "the context in which [they are] used." Lawlor v. Commonwealth, 285 Va. 187, 237, 738 S.E.2d 847, 875 (2013). "Encroach" means "[t]o enter by gradual steps or stealth into the possessions or rights of another; to trespass or intrude," and "[t]o gain or intrude unlawfully upon another's lands, property, or authority." Black's Law Dictionary 607 (9th ed. 2009). "Trespass" means "[a]n unlawful act committed against the person or property of another[, especially] wrongful entry on another's real property." Id. at 1642. We has the legal right to order others off of that property, and, upon refusal, the legal right to use proper force to expel such others). 15 recognize an overlap between these terms, and therefore construe them so that neither is surplusage. Travelers Prop. Cas. Co. of Am. v. Ely, 276 Va. 339, 345, 666 S.E.2d 523, 527 (2008). A Code § 28.2-1203(A) "trespass" occurs when a person occupies the space "upon or over" state-owned subaqueous bottomland while simultaneously violating other law. A Code § 28.2-1203(A) "encroach[ment]" would be found when a person occupies the space "upon or over" state-owned subaqueous bottomland without violating any other law. These ordinary meanings of the plain language make sense in the context of Code § 28.2-1203(A). However, we must construe these terms so that they do not contravene the Constitution of Virginia. Doe, 278 Va. at 229, 682 S.E.2d at 908; Town of Victoria, 134 Va. at 139, 114 S.E. at 93. The only applicable constitutional limitation is the right of jus publicum. Specifically, we must decide whether the Inn, in using the floating platform above state-owned subaqueous bottomland, was engaging in an activity that is a public right inherent to the jus publicum. If so, the Constitution of Virginia prohibits construing "trespass" or "encroach[ment]" as applying to the floating platform because enforcing Code § 28.2-1203(A) would "relinquish, surrender, alienate, destroy, or substantially impair" a constitutionally 16 protected "right[] of the people." City of Newport News, 158 Va. at 546-47, 164 S.E. at 697. 5 2. Code § 28.2-1203(A) and the Constitution of Virginia The interplay between Code § 28.2-1203(A) and the constitutional protection of the public rights inherent to the jus publicum manifests in the following three-step analysis. a. Did the Plain Language of Code § 28.2-1203(A) Apply to the Floating Platform? First, the analysis questions whether the floating platform was subject to Code § 28.2-1203(A) because it was committing a "trespass" or "encroach[ment] upon or over" state- owned subaqueous bottomland. The clear answer is yes. It is evident from the record that a 54-foot by 13.6-foot portion of the floating platform occupied the physical space over the Commonwealth's subaqueous bottomland. The Inn was not violating any other law when it had the floating platform occupy the space above the Commonwealth's subaqueous bottomland. Thus, the floating platform was an "encroach[ment] upon or over" the Commonwealth's subaqueous bottomland. On the 5 On this point the Court of Appeals erred by inverting the jus publicum. The jus publicum is a constitutional doctrine that simultaneously empowers and limits the actions of the Commonwealth, not private individuals. See City of Newport News, 158 Va. at 546-49, 164 S.E. at 696-97. Consequently, because a private individual cannot violate the jus publicum, the Court of Appeals erred in construing the terms appearing in Code § 28.2-1203(A) as being defined by a private individual's violation of the jus publicum. Virginia Marine, 61 Va. App. at 385-86, 735 S.E.2d at 709. 17 face of the statute, Code § 28.2-1203(A) applied to the floating platform. b. Was the Inn's Activity Issued a Permit by the Commission or Exempted by a Statutory Exception? Second, the analysis questions whether (1) the Commission issued a permit for the floating platform, or (2) the Inn's floating platform was exempted from Code § 28.2-1203(A) by satisfying a statutory exception. The clear answer to both questions is no. It is evident from the record that the floating platform's encroachment was neither authorized by permit nor exempted from Code § 12.2-1203(A) by a statutory exception. The floating platform's encroachment therefore violated Code § 28.2-1203(A). c. Was the Inn's Activity a Public Right Inherent to the Jus Publicum? Third, the analysis questions whether the Inn, in using the floating platform above state-owned subaqueous bottomland, was engaging in an activity that is a public right inherent to the jus publicum. The clear answer is no. The General Assembly has modified the jus publicum to include the public's right to use the Commonwealth's subaqueous bottomland to "fish[], fowl[], hunt[], and tak[e] and catch[] oysters and other shellfish." Code § 28.2-1200; see also Bradford v. Nature Conservancy, 224 Va. 181, 194-97, 294 S.E.2d 18 866, 872-74 (1982). The record reflects that the Inn was not engaged in any of these activities. We have acknowledged that the jus publicum includes the public right to navigate the Commonwealth's waters. James River & Kanawha Power Co. v. Old Dominion Iron & Steel Corp., 138 Va. 461, 470, 122 S.E. 344, 347 (1924). The right of navigation, for purposes of the public right inherent to the jus publicum, is "the right to move and transport goods from place to place over the great natural highways provided by the navigable waters of the State without let or hindrance from or charge by any private person or corporation." City of Newport News, 158 Va. at 550, 164 S.E. at 698 (emphasis added). Although this right undoubtedly includes some cessation of movement upon the water, as incident to the right of navigation, it does not include all cessations of movement. This necessarily follows from the fact that determining what activity the Inn was engaged in requires evaluating the totality of the circumstances. See id. at 550-51, 164 S.E. at 698 (distinguishing between engaging in navigation, which includes "mov[ing] from place to place," and the right of fishery, which as a matter of practicality may require some degree of movement across water). Regardless of the length of time a structure has stopped moving, we must evaluate the 19 circumstances surrounding that cessation of movement to determine just what activity is being undertaken. The record reveals that the Inn's floating platform occupied the space over the Commonwealth's subaqueous bottomland for approximately two months before the Commission conducted its site inspection in June 2010. The Inn intended for the floating platform to occupy that space for a total time period of approximately four months. Although the Inn interrupted the floating platform's fixed nature for a 32- minute trip down the Chincoteague Channel in July 2010, this momentary engagement in the right of navigation does not obviate the facts showing that the floating platform was otherwise stationary for at least two months. Moreover, those months of being stationary were not incident to the right of navigation. When the floating platform was supported by two barges, the Inn placed a bar and tables on the floating platform for its restaurant patrons. When one of those barges was taken away, the Inn refitted the floating platform with a new deck and handrails, and two gangways led from the Inn to the barge so that restaurant patrons could use the bar area and have outdoor seating on the water. The Health Department permitted the Inn to conduct this additional restaurant activity on the barge. Underscoring the point, the Inn admitted to the full Commission during the 20 enforcement proceeding that the barge was being used as a restaurant. Restaurant operations are not incident to the right of navigation. Indeed, using the floating platform for restaurant operations "convert[ed] the public property," that is, the waters above the Commonwealth's subaqueous bottomland, "pro tanto to a use which is essentially private, whether it [was] exercised for pleasure or profit." City of Newport News, 158 Va. at 551, 164 S.E. at 698-99. Much like the use of the Commonwealth's water and subaqueous bottomland for "pleasure purposes" and fisheries, see id. at 531, 551-52, 164 S.E. at 691, 698-99, the Inn's placement of the floating platform alongside its restaurant was not a right of the public inherent to the jus publicum. Thus, the Constitution of Virginia does not restrict the plain language of Code § 28.2-1203(A) from applying to the Inn's floating platform, and therefore the Commission may regulate that floating platform as an "encroach[ment] upon or over" state-owned subaqueous bottomland. 6 6 It is important to recognize what this appeal does not address. It does not address facts where an individual docks his boat, as necessary to disembark after traveling across the water, at a pier situated above state-owned subaqueous bottomland. It does not address facts where an individual lives in a floating structure situated above state-owned subaqueous bottomland. Determining whether those factual situations involve activities incident to the right of 21 D. Whether the Commission Can Withdraw Its Concession That the Floating Platform Is a "Vessel" Under 1 U.S.C. § 3 The Commission asks to withdraw its concession that the floating platform is a "vessel" as defined under 1 U.S.C. § 3. The Commission relies upon the fact that the United States Supreme Court published its opinion in Lozman v. City of Riviera Beach, 568 U.S. ___, 133 S. Ct. 735 (2013), shortly after the Court of Appeals issued its en banc decision in this case. The Commission contends that because Lozman modified the definition of "vessel" for purposes of applying 1 U.S.C. § 3, the Commission should not be bound by its earlier concession that the floating platform is a "vessel." Had the Commission conceded only the legal issue, we would not be bound by that concession of law. This is because an "issue [which] is a question of law . . . is not subject to a concession binding on this Court." Wright v. Commonwealth, 278 Va. 754, 760 n.3, 685 S.E.2d 655, 658 n.3 (2009); see also Cofield v. Nuckles, 239 Va. 186, 194, 387 S.E.2d 493, 498 (1990) ("A party can concede the facts but cannot concede the law."). But the Commission did more than concede a legal issue. The Commission also conceded that it did not preserve the issue of whether the floating platform was a "vessel." Such a navigation, or are themselves a public right inherent to the jus publicum, is beyond the scope of today's appeal. 22 concession was appropriate because the Commission did, in fact, fail to preserve the issue by failing to assign error to the circuit court's determination that the floating platform was a "vessel." Thus, under the law of the case doctrine, the floating platform is a "vessel" as defined under 1 U.S.C. § 3 for purposes of this appeal. See Miller-Jenkins v. Miller- Jenkins, 276 Va. 19, 26-27, 661 S.E.2d 822, 826 (2008). It is important to note, however, that whether the floating platform was engaged in the public right of navigation inherent to the jus publicum, and whether the floating platform is a "vessel" under 1 U.S.C. § 3, are separate inquiries. The definition of "vessel" under 1 U.S.C. § 3 does require that a structure be "in navigation." Stewart v. Dutra Constr. Co., 543 U.S. 481, 496 (2005). But the "in navigation" requirement prescribed by a definition within a federal statute is not synonymous with the "right of navigation" protected by the Constitution of Virginia. Our definition of the "right of navigation" inherent to the jus publicum focuses on the active and immediate moving across the navigable waters. See City of Newport News, 158 Va. at 550, 164 S.E. at 698. In contrast, the "in navigation" requirement in 1 U.S.C. § 3 allows for the mere "possibility" that a structure could engage in movement across the navigable waters. Stewart, 543 U.S. at 496. And as the United States 23 Supreme Court made clear, a "vessel" as defined in 1 U.S.C. § 3 need not be actively "carrying people or things over water." Lozman, 568 U.S. at ___, 133 S. Ct. at 740-41. Additionally, in light of the longstanding authority discussed in Part II.B., a federal statute cannot dictate how we understand the right of jus publicum under the Constitution of Virginia. See Michigan v. Long, 463 U.S. 1032, 1040-41 (1983). For these reasons, although the Commission failed to preserve the issue of whether the floating platform is a "vessel" under 1 U.S.C. § 3, that legal definition does not dictate our analysis of whether the floating platform was engaged in the public's "right of navigation" inherent to the jus publicum. III. Conclusion This appeal involves a restaurant placing a floating platform over the Commonwealth's subaqueous bottomland without a permit or statutory exception in violation of Code § 28.2- 1203(A). Moreover, the floating platform was used to undertake restaurant operations, and therefore was not protected by the Constitution of Virginia as a public right inherent to the jus publicum. For these reasons, we hold that the Court of Appeals erred in interpreting the scope of the Commission's authority under Code § 28.2-1203(A). Further, we hold that the 24 Commission failed to preserve the issue of whether the floating platform is a "vessel" under 1 U.S.C. § 3. For the aforementioned reasons, we reverse the Court of Appeals' en banc decision. Although the Court of Appeals' panel opinion addressed the issue of federal preemption, the Court of Appeals vacated that panel opinion upon granting en banc review. See Moore v. Commonwealth, 276 Va. 747, 755, 668 S.E.2d 150, 155 (2008) (recognizing that the Court of Appeals considers panel decisions to be vacated in toto upon grant of en banc review). Because the Court of Appeals' en banc opinion did not address the issue of federal preemption, that issue remains outstanding. We therefore remand the case to the Court of Appeals to resolve all remaining issues, including whether application of Code § 28.2-1203(A) to the floating platform is preempted by federal maritime law. Reversed and remanded. JUSTICE POWELL, with whom JUSTICE McCLANAHAN joins, dissenting. I agree with the majority that the dispositive question in this case is whether the Inn, in using the barge 1 above state- 1 Unlike the majority, I believe that the term “floating platform” is a misnomer. In reality, the “floating platform” was simply one or two work barges with new decking installed. The majority, however, implies otherwise, as demonstrated by the majority’s subsequent description that “the floating platform was supported by two barges.” (Emphasis added.) 25 owned subaqueous bottomlands, was engaging in an activity that is a public right inherent in the jus publicum. However, I disagree with the majority’s decision to disregard the importance of the barge’s designation as a vessel. It is readily apparent to me that a vessel “in navigation” is necessarily engaging in the “right of navigation.” As a result of the majority’s failure to give the barge’s status as a vessel the proper consideration, the application of the Code § 28.2-1203(A) yields an absurd result. Accordingly, I must respectfully dissent. In my opinion, the VMRC’s concession that the barge is a vessel is dispositive in this case. The majority, however, disregards the importance of this designation, holding that “the ‘in navigation’ requirement prescribed by a definition within a federal statute is not synonymous with the ‘right of navigation’ protected by the Constitution of Virginia.” The majority’s holding is rendered erroneous by the fact that the law has changed significantly since 1932 when this Court decided Commonwealth v. City of Newport News, 158 Va. 521, 550, 164 S.E. 689, 698 (1932), the case upon which the majority relies to establish its definition for the right of navigation The use of the term “floating platform” is, in my opinion, an unsuccessful attempt by the majority to downplay the ultimate effect this opinion will have on all watercraft. 26 inherent to the jus publicum. 2 Notably, it has since been well- established that Congress is the ultimate arbiter of what activities are encompassed by the right of navigation, not the Constitution of Virginia. As an initial matter, it is important to note that navigation is a subset of commerce. See Gilman v. Philadelphia, 70 U.S. 713, 724 (1866) (“Commerce includes navigation.”). Accordingly, The Commerce Clause confers a unique position upon the Government in connection with navigable waters. “The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States . . . . For this purpose they are the public property of the nation, and subject to all the requisite legislation by Congress.” Gilman, [70 U.S.] 713, 724-25. This power to regulate navigation confers upon the United States a “dominant servitude,” FPC v. Niagara Mohawk Power Corp., 347 U.S. 239, 249 (1954), which extends to the entire stream and the stream bed below ordinary high-water mark. United States v. Rands, 389 U.S. 121, 122-23 (1967). Indeed, this Court acknowledged Congress’s power over navigation in City of Newport News, stating: By the adoption of the Constitution of the United States the State of Virginia to a limited extent, defined by the Constitution itself, relinquished a portion of its sovereignty to the United States. In 2 Additionally, the majority fails to address the fact that this definition was dicta. In City of Newport News, the issue before the Court was whether the Constitution of Virginia includes the public right of fishery, not the definition of the right of navigation. 158 Va. at 533-34, 164 S.E. at 692. 27 so doing it imposed upon itself the limitation that it may not so dispose of or appropriate to uses its tidal waters and their bottoms as to interfere with the power and right granted to the United States to regulate and control the navigation thereof, so far as may be necessary for the regulation of commerce with foreign nations and among the States. Id. at 543-44, 164 S.E. at 695-96 (emphasis added). In 1932, when City of Newport News was decided, however, it was believed that Congress’ power over navigation was strictly limited to those navigable streams involved in interstate and international commerce. See id. Implicitly, this meant that power over intrastate commerce fell to the individual states. Thus, at that time, the Constitution of Virginia was the starting point for determining the activities encompassed by the right of navigation. However, in 1942, the United States Supreme Court effectively eliminated the distinction between intrastate and interstate commerce with regard to Congress’ power under the Commerce Clause. The commerce power is not confined in its exercise to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them [the] appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce. . . . The power of Congress over interstate commerce is plenary and complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution. . . . It follows that no form of state activity can 28 constitutionally thwart the regulatory power granted by the commerce clause to Congress. Hence the reach of that power extends to those intrastate activities which in a substantial way interfere with or obstruct the exercise of the granted power. United States v. Wrightwood Dairy Co., 315 U.S. 110, 119 (1942); see also Wickard v. Filburn, 317 U.S. 111, 128-29 (1942) (extending Congress’ power over interstate commerce to include intrastate activities that may have an indirect effect on interstate commerce); Gonzales v. Raich, 545 U.S. 1, 18 (2005). In 1953, Congress ceded “title to and ownership of the lands beneath navigable waters within the boundaries of the respective States, and the natural resources within such lands and waters.” Submerged Lands Act of 1953, 43 U.S.C. § 1311. However, in ceding title and ownership of the subaqueous bottomlands, Congress specifically retained “all its navigational servitude and rights in and powers of regulation and control of said lands and navigable waters for the constitutional purposes of commerce, navigation, national defense, and international affairs.” 43 U.S.C. § 1314(a) (emphasis added). Moreover, Congress specifically established that its rights in and powers of regulation and control over the subaqueous bottomlands “shall be paramount to” the rights and powers of the respective states. Id. 29 While the majority is correct that “a federal statute cannot dictate how we understand the right of jus publicum under the Constitution of Virginia,” it ignores the Supremacy Clause which specifically states that the “Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const., Art. VI, cl. 2. (emphasis added). It is readily apparent that Congress has deemed that the starting point for determining what activity is encompassed by the “right of navigation” inherent in the jus publicum is no longer found in the Constitution of Virginia; rather, the starting point is federal law. Consequently, I believe that the determination that the barge is a vessel under 1 U.S.C. § 3 is dispositive, as Congress has deemed that all vessels are, by definition, “in navigation.” As a necessary corollary, any watercraft that is “removed from navigation for extended periods of time,” is no longer a vessel. Lozman v. City of Riviera Beach, 133 S. Ct. 735, 751 (2013). Therefore, it is axiomatic that the use of a watercraft in navigation (i.e., as a vessel) invokes the right of navigation under federal law. 30 Additionally, the determination that the barge is a vessel obviates the need for any examination of how the vessel is used. As the United States Supreme Court explained, the “in navigation” requirement is an element of the vessel status of a watercraft. It is relevant to whether the craft is “used, or capable of being used” for maritime transportation. A ship long lodged in a drydock or shipyard can again be put to sea, no less than one permanently moored to shore or the ocean floor can be cut loose and made to sail. The question remains in all cases whether the watercraft's use “as a means of transportation on water” is a practical possibility or merely a theoretical one. Stewart v. Dutra Constr. Co., 543 U.S. 481, 496 (2005). Thus, the majority’s examination of the Inn’s use of the barge is moot. Indeed, by examining the issue of how the barge is used, the majority effectively disregards the barge’s designation as a vessel. It cannot be disputed that the barge in the present case is a vessel. Therefore, in my opinion, it similarly cannot be disputed that the Inn was engaging in its public right of navigation through its use of the barge. Furthermore, to hold that the VMRC has jurisdiction to enforce Code § 28.2-1203(A) with regard to vessels would yield an absurd result. This Court has recognized that “when the language of an enactment is free from ambiguity, resort to legislative history and extrinsic facts is not permitted because we take the words as written to determine their meaning.” Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 31 87 (1985). However, our jurisprudence makes it clear that there are certain, limited exceptions to this rule. In construing statutes, courts are charged with ascertaining and giving effect to the intent of the legislature. That intention is initially found in the words of the statute itself, and if those words are clear and unambiguous, we do not rely on rules of statutory construction or parol evidence, unless a literal application would produce a meaningless or absurd result. Crown Cent. Petroleum Corp. v. Hill, 254 Va. 88, 91, 488 S.E.2d 345, 346 (1997) (emphasis added) (citations omitted). The term “absurd result” describes “situations in which the law would be internally inconsistent or otherwise incapable of operation.” Boynton v. Kilgore, 271 Va. 220, 227 n.9, 623 S.E.2d 922, 926 n.9 (2006) (internal quotation marks omitted). It is readily apparent that the majority’s definition of the right of navigation would render Code § 28.2-1203(A) incapable of operation. The majority’s definition of the right of navigation would give the VMRC jurisdiction to require every watercraft not used for commercial purposes to get a permit every time it is over state-owned subaqueous bottomlands. This is not such a far-fetched proposition, as the VMRC has unequivocally indicated that it would embrace such a ruling, as demonstrated by its statement, which the majority quoted, that anything that floats over state-owned subaqueous bottomland “is an encroachment because it entered into the rights and 32 authority of the Commonwealth without its permission.” As the Court of Appeals correctly noted, it would be impossible for the VMRC to implement such a requirement because “vessels can move and stop over the bottomlands numerous times in one day.” Virginia Marine Res. Comm’n v. Chincoteague Inn, 61 Va. App. 371, 386, 735 S.E.2d 702, 710 (2013). Additionally, the majority’s approach results in the de facto criminalization of the act of temporarily mooring non- commercial vessels. As stated above, every vessel not used for commercial purposes would be required to get a permit every time it is moored over state-owned subaqueous bottomlands. The failure to acquire such a permit from the VMRC would subject the owner of the vessel to prosecution for a Class 1 misdemeanor, Code § 28.2-1203(B), and a fine of up to $25,000 per day. Code § 28.2-1213(A). The problem lies in the fact that the VMRC does not have the authority to issue the required permit. Under Code § 28.2- 1207(A), the VMRC may approve permits “to trespass upon or over or encroach upon subaqueous beds which are the Commonwealth's property.” (Emphasis added.) Notably absent is the authority to approve permits for encroachments over state-owned subaqueous bottomlands. Under the maxim expressio unius est exclusio alterius, the mention of a specific item in a statute implies that the “omitted items were not intended to be 33 included.” Virginian-Pilot Media Cos. v. Dow Jones & Co., 280 Va. 464, 468-69, 698 S.E.2d 900, 902 (2010). Thus, the General Assembly’s omission of “over” with regard to permits to encroach implies that it did not intend to give the VMRC the authority to grant such permits. Clearly, the General Assembly never intended to outlaw all recreational activities over state-owned subaqueous bottomlands. However, that is the natural result of the majority’s application of Code § 28.2- 1203(A). It is readily apparent that the majority recognizes these inherent flaws in its opinion as demonstrated by its decision to address what this “appeal” does not address in footnote 6. The majority is correct: the VMRC’s “appeal” does not address any of the situations listed. However, the majority ignores the fact that its holding would still be dispositive of those factual situations. Although the majority implies that docking a boat used for purposes of personal travel or living on a houseboat over state-owned subaqueous bottomlands would somehow require a different result from the present case, it offers no indication of how. Nor could it, as neither of these activities involves the movement or transportation of goods from place to place. Indeed, if today’s holding does not apply to those factual situations, then the majority must acknowledge that it is not defining the public right of navigation; rather, 34 it is defining the right of navigation as it applies solely to the Inn. Such a subjective approach can only lead to abuse. Indeed, I find it particularly telling that, at oral argument, the VMRC conceded that a boat that is moored for a majority of the year and used primarily as a guesthouse would not be subject to Code § 28.2-1203(A), because its use is incident to navigation. However, the barge in the present case, which is only moored for four months of the year and then actively used as a work barge for the remaining eight months would be subject to Code § 28.2-1203(A). The majority, however, tacitly approves of such an arbitrary distinction. Allowing the VMRC to enforce Code § 28.2-1203(A) with regard to vessels, whether temporarily moored or otherwise, would necessarily result in the relinquishment, surrender, alienation, destruction or substantial impairment of the right of navigation, a clear violation of the jus publicum. Moreover, the application of Code § 28.2-1203(A) to vessels renders the statute incapable of operation and ripe for abuse. Accordingly, I would affirm the Court of Appeals’ decision finding that the VMRC does not have jurisdiction to enforce Code § 28.2-1203(A). 35

01-03-2023

04-18-2014

https://www.courtlistener.com/api/rest/v3/opinions/2670502/

United States Court of Appeals For the First Circuit No. 11-2260 UNITED STATES OF AMERICA, Appellee, v. DAVID OQUENDO-RIVAS, Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Gustavo A. Gelpí, U.S. District Judge] Before Lynch, Chief Judge, Torruella and Selya, Circuit Judges. Anita Hill-Adames and Anita Hill Law Office, on brief for appellant. John A. Mathews II, Assistant United States Attorney, Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez- Sosa, Assistant United States Attorney, Chief, Appellate Division, on brief for appellee. April 18, 2014 TORRUELLA, Circuit Judge. David Oquendo-Rivas ("Oquendo") appeals from the denial of his motion to suppress a series of inculpatory statements. First, he seeks suppression of a statement made to his arresting officer, arguing that he was questioned while in formal custody but prior to the receipt of Miranda warnings. Second, he seeks suppression of all statements made during his formal interrogation, arguing that questioning resumed impermissibly soon after his initial refusal to make a statement and continued even after his unambiguous request for counsel. None of these theories passes muster. Consequently, we affirm the denial of the motion to suppress. I. Background A. Arrest and Interrogation1 A shootout at La Tómbola, a bar near Toa Baja, Puerto Rico, left several patrons dead. In its aftermath, rumors led officers from the Puerto Rico Police Department ("PRPD") to a nearby home, where several men involved in the murders were thought to be hiding. Arriving at the residence, officers observed three men standing in its fenced-in yard. Startled by the officers, one man -- later identified as Oquendo –- lifted his shirt to reveal a firearm in his waistband. All three men then fled. One, exiting 1 We derive the facts, in large part, from testimony given by the arresting and interrogating officers. This testimony was found credible by the district court judge and is not seriously contested by Oquendo on appeal. -2- the yard, successfully evaded the ensuing pursuit; he has never been identified. The other two, Oquendo and his co-defendant, Christian Ortiz-Rivera ("Ortiz"), ran up an exterior staircase and into the home's second-story interior. The officers gave chase. Entering the home's upper level, Officer Rodríguez-Negrón ("Officer Rodríguez") observed Oquendo toss a handgun out of the window. Soon after, Officer Rodríguez and Officer Roberto Cruz grabbed Oquendo and restrained him on the floor. While demobilizing Oquendo, they heard a fellow officer call out from below, indicating that he had possession of the thrown weapon. Officer Rodríguez then entered an adjoining bedroom, where he witnessed Ortiz attempting to hide two more firearms in a laundry basket. One of these guns had an obliterated serial number. Subsequent to detaining both men, but before their formal arrest, Officer Rodríguez asked if they were licensed to possess firearms. Oquendo and Ortiz both answered, "no." After being placed under formal arrest and verbally read his Miranda rights,2 Oquendo was taken to the police station in Bayamón, Puerto Rico for questioning. There, Officer Rodríguez provided him with a Spanish-language Miranda waiver form. This 2 The arresting officers testified that, after receiving this verbal warning, Oquendo and Ortiz made several voluntary and unsolicited statements. Some time during these events, a man also arrived at the home claiming to be Oquendo and Ortiz's lawyer. Because the man did not know the names of his clients, or who had called to request his presence, he was denied access. -3- form set forth, in a bullet-point list, the nature of Oquendo's Miranda rights. Under that bulleted description, the form provided space for Oquendo to waive his rights by consenting to make a statement outside the presence of a lawyer, if he so desired. After reviewing the form, Oquendo indicated that he did not wish to make a statement. No questions were asked and, after signing and dating the form, Officer Rodríguez left the room. Approximately twenty minutes later, Agent Julio Torres ("Agent Torres") from the federal Alcohol, Tobacco, Firearms and Explosives Bureau ("ATF") entered Oquendo's interrogation room. Agent Torres handed Oquendo another blank copy of the Spanish- language Miranda waiver form. After reviewing this duplicate form, Oquendo wrote next to the portion of the form related to waiver, "I do not understand this, my lawyer speaks."3 Agent Torres then verbally read Oquendo his Miranda rights and, upon seeing the note, asked Oquendo what he did not understand. In response, Oquendo indicated that he was willing to speak without a lawyer present, but that he did not want to answer any questions about the deaths at La Tómbola. Agreeing to limit the scope of his questions, Agent Torres had Oquendo circle the portion of the waiver form consenting to speak without a lawyer. Both Oquendo and Agent Torres then signed the form, and questioning began. During the course of his 3 Oquendo's note was written in Spanish: "No entiendo eso[,] mi abogado habla." Neither party disputes the English translation's accuracy. -4- interrogation, Oquendo made statements indicating that he knew Ortiz possessed a gun with an obliterated serial number. B. Motion to Suppress Oquendo was indicted for aiding and abetting in the possession of a firearm with an obliterated serial number, in violation of 18 U.S.C. §§ 2 and 922(k). Before the district court, Oquendo argued for the suppression of his spontaneous post-Miranda statements, on the theory that his purported counsel, having arrived at the home but lacking even the most basic information about his clients, was denied access. This claim has been abandoned on appeal.4 Oquendo also sought suppression of his statements to Agent Torres, arguing that his written note was an unambiguous request for counsel, requiring the immediate cessation of questioning until an attorney was present. At trial, the district court judge informed the parties that he wanted to revisit his prior order denying the motion to suppress. He explained that, in issuing the initial order, he had believed the motion to suppress to focus only on a single issue: whether Oquendo's purported attorney was wrongly denied access to his client at the time of arrest. Upon closer review of the rather muddled motion, however, he understood it also to allege that Agent Torres's interrogation violated Oquendo's Miranda rights. In order 4 Oquendo has also forgone on appeal a rather ill-formed argument that the ATF had no reason to suspect he had committed a federal crime, and thus no reason to interrogate him. -5- to treat this additional issue, the jury was excused and Agent Torres was called for questioning. At the end of this suppression hearing, the district court judge deemed Agent Torres's testimony credible and held that Oquendo's written statement was not an unambiguous request for counsel. Moreover, the district court judge determined that Agent Torres's decision to commence questioning approximately twenty minutes after Oquendo refused to make a statement to PRPD officers did not violate Oquendo's right to remain silent. Oquendo appeals from the district court's determination that Agent Torres's interrogation neither violated his right to remain silent nor ignored an unambiguous request for counsel. He also forwards a new argument, seeking suppression of his initial admission to Officer Rodríguez that he did not possess a gun license. This latter claim is predicated on the theory that Oquendo, at the time of Officer Rodríguez's question, was in formal custody but had not been read his Miranda rights. II. Discussion In reviewing a district court's denial of a motion to suppress, "[w]e view the facts in the light most favorable to the district court's ruling." United States v. Camacho, 661 F.3d 718, 723 (1st Cir. 2011) (alteration in original) (quoting United States v. Soares, 521 F.3d 117, 118 (1st Cir. 2008)). We assess questions of fact, as well as the district court's credibility -6- determinations, for clear error. Id. at 723-24. These findings are susceptible to reversal only where we are definitely and firmly convinced that a mistake has been made. United States v. Nee, 261 F.3d 79, 84 (1st Cir. 2001). Questions of law, in contrast, receive de novo review, as does the district court's application of law to its findings of fact. United States v. Werra, 638 F.3d 326, 330 (1st Cir. 2011). A. Statement to Officer Rodríguez Oquendo seeks suppression of his statement to Officer Rodríguez that he did not hold a license to possess firearms. This statement was made while at the Toa Baja residence, after Oquendo was restrained on the floor. Oquendo asserts that it was elicited while he was formally in custody, see Berkemer v. McCarty, 468 U.S. 420, 438-39 (1984) (establishing the test to determine whether detention prior to arrest is custodial), but prior to the receipt of any Miranda warnings. We do not reach the merits of this claim, as it is not properly before us. Fed. R. Crim. P. 12(e) (deeming waived any motion to suppress not made before the district court's motion deadline); United States v. Santos Batista, 239 F.3d 16, 19 (1st Cir. 2001) ("Failure to raise suppression arguments before trial shall constitute waiver thereof." (citation and internal quotation -7- marks omitted)).5 Oquendo's motion to suppress never made reference to his statement regarding licensure, instead only seeking the suppression of two other sets of statements, which were made after formal arrest and during interrogation. United States v. Torres, 162 F.3d 6, 11 (1st Cir. 1998) ("[Rule 12(e)'s] waiver provision applies not only when a defendant has failed altogether to make a suppression motion but also when, having made one, he has neglected to include the particular ground that he later seeks to argue."). Our court has previously suggested that unpreserved suppression arguments may be merely forfeited rather than waived, engendering plain-error review. United States v. Nuñez, 19 F.3d 719, 723 n.10 (1st Cir. 1994); see also United States v. Pérez- González, 445 F.3d 39, 44 (1st Cir. 2006). Recent precedent, however, shows a strong inclination against plain-error review. United States v. Lyons, 740 F.3d 702, 720 (1st Cir. 2014) (reasoning that recent precedent strongly favors a finding of waiver); United States v. Crooker, 688 F.3d 1, 9-10 (1st Cir. 2012) (refusing to review an untimely suppression argument for plain error). We have emphasized that, by its express terms, Rule 12(e) 5 In 2002, amendments to Rule 12 incorporated the content of what was then Rule 12(f) into the current Rule 12(e). The Advisory Committee made clear that this alteration effected "no change in the current law regarding waivers of motions or defenses." Fed. R. Crim. P. 12 advisory committee notes on the 2002 amendments. Pre- amendment case law, therefore, continues to guide our reasoning. -8- calls for waiver, and we have noted that ignoring this mandate would be "manifestly unfair" to the prosecution. United States v. Walker, 665 F.3d 212, 228 (1st Cir. 2011). We see no grounds on which to treat Oquendo's claim differently. Neither can Oquendo find refuge in Rule 12(e)'s "good cause" exception, which allows the court to grant relief from waiver for a showing of good cause. Fed. R. Crim. P. 12(e). Like the appellant in Lyons, Oquendo "has not addressed the waiver issue at all, let alone explained why he has good cause to seek relief from it." Lyons, 740 F.3d at 720. It is not the job of this court to build good cause from naught, and Oquendo has failed even to hint at why his claim should be excused from Rule 12(e)'s express strictures. Consequently, we find that Oquendo has waived his argument for suppression of this statement. B. Statements to Agent Torres Oquendo seeks suppression of his statements to Agent Torres on two grounds: (1) a violation of his right to remain silent based on the quick resumption of questioning after he initially refused to make a statement, and (2) a violation of his right to counsel based on continued questioning after what Oquendo argues was an unambiguous request for an attorney. 1. Right to Remain Silent Unlike an unambiguous request for counsel, after which questioning must invariably cease until a lawyer is provided, an -9- invocation of the right to remain silent does not automatically bar the resumption of questioning at a later time. See United States v. Andrade, 135 F.3d 104, 107 (1st Cir. 1998). Rather, in determining the appropriateness of renewed questioning, our inquiry focuses on whether the suspect's "right to cut off questioning" was at all times "scrupulously honored." Michigan v. Mosley, 423 U.S. 96, 103-04 (1975). After an initial invocation of the right to remain silent, four factors are relevant to determining whether the resumption of questioning is permissible: (1) whether a reasonable period of time passed prior to the resumption, (2) whether the same officer resumed questioning, (3) whether the suspect received refreshed Miranda warnings, and (4) whether questioning concerned the same alleged crime. United States v. Lugo Guerrero, 524 F.3d 5, 12 (1st Cir. 2008) (citing Mosley, 423 U.S. at 104-06). Beyond assessing these factors, however, our ultimate review must account for the "totality of the circumstances," with an eye to determining whether the suspect retained the ability to choose whether and when to speak. Id. (quoting United States v. Thongsophaporn, 503 F.3d 51, 57 (1st Cir. 2007)). Oquendo hangs his hat on the first Mosley factor, arguing that twenty minutes is too short a passage of time to make the resumption of questioning reasonable. And indeed, Agent Torres's timing gives us pause. While Mosley did not purport to set a floor, we note that twenty minutes is some six-times shorter than -10- the time period found reasonable therein. Mosley, 423 U.S. at 104 (stating that "more than two hours" passed between interrogations); Andrade, 135 F.3d at 106 (same). It would be both unwise and unworkable, however, to try and demarcate a one-time-fits-all limit for assessing reasonableness, which at its worst might only send interrogating officers running for their stopwatches. Such a reading of Mosley has been previously rejected by our court, see United States v. Barone, 968 F.2d 1378, 1383 (1st Cir. 1992), and we reaffirm that logic now. Rather, our analysis must account for the totality of the circumstances and must give appropriate attention to Mosley's other enumerated factors. Here, assessing the facts in their entirety, it is clear that Oquendo's right to cut off questioning was not impinged. Agent Torres, not Officer Rodríguez, conducted the second interrogation. Prior to commencing questioning, Agent Torres also provided Oquendo -- both verbally and in writing -- with a restatement of his Miranda rights. Moreover, the record is devoid of any indication that Agent Torres intimidated, threatened, or otherwise pressured Oquendo into offering a statement. Cf. Barone, 968 F.2d at 1384 ("[O]fficers repeatedly spoke to Barone for the purpose of changing his mind, failed to provide new Miranda warnings, applied pressure by emphasizing the danger he would face in Boston if he did not cooperate, and took advantage of a long delay in arraignment."). Indeed, when Oquendo agreed to make a -11- statement but asked that the scope of questioning be limited, it is uncontested that Agent Torres fully abided by those boundaries. In sum, these facts support a finding that Oquendo retained control over his ability to choose whether or not to speak. Therefore, we find no violation of his right to remain silent. Nonetheless, this holding should not be read in any way to imply our acceptance of police practices that give suspects only a momentary respite after their refusal to make a statement. Although the broader context here makes clear that Oquendo's right to cut off questioning was appropriately preserved, that determination is fact dependent. Accordingly, our holding does not eliminate the very real possibility that, in another case, serious concerns may well arise when questioning resumes only twenty minutes after an initial invocation of the right to remain silent. 2. Right to Counsel Immediately after a suspect has invoked the right to counsel, all questioning must cease until such counsel is provided. Edwards v. Arizona, 451 U.S. 477, 485 (1981). This request for counsel must be clear and unambiguous. Davis v. United States, 512 U.S. 452, 459 (1994). Where a request, marred by ambiguity or equivocation, suggests only "that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning." Id. Our test is objective, requiring that the statement be such that "a reasonable police officer in the -12- circumstances would understand the statement to be a request for an attorney." Id.; Obershaw v. Lanman, 453 F.3d 56, 64 (1st Cir. 2006). Oquendo argues that his statement -- "I do not understand this, my lawyer speaks" -- was "tantamount" to an invocation of the right to counsel. In concert with his earlier refusal to make a statement, he continues, this request was "certainly unambiguous." Finding the meaning and intent of Oquendo's statement to be less than clear, we disagree. By its express terms, "my lawyer speaks" does not unequivocally demand assistance, request the lawyer's presence, or otherwise clearly indicate an unwillingness to make a statement absent presence of an attorney. Cf. Obershaw, 453 F.3d at 64-65 (concluding that the question "can I talk to a lawyer first?" was an "inquir[y as to] whether [the suspect] could talk to a lawyer" not an "assert[ion] that he in fact wanted to do so"). Moreover, "when a suspect makes an ambiguous or equivocal statement it will often be good police practice for the interviewing officers to clarify whether or not he actually wants an attorney." Davis, 512 U.S. at 461; see also Nom v. Spencer, 337 F.3d 112, 118 & n.5 (1st Cir. 2003). In response to Oquendo's statement that he did not understand, Agent Torres did not "ignore his answer and forge ahead with questions." James v. Marshall, 322 F.3d 103, 109 (1st Cir. 2003). Rather, Agent Torres asked what Oquendo did not understand. He then asked whether Oquendo was, in -13- fact, willing to speak without a lawyer. Oquendo answered in the affirmative. Only then did Agent Torres begin his interrogation. Highly analogous facts have been characterized by our court as "precisely the kind of 'good police practice' described . . . in Davis." Id. We need press no further; Oquendo did not invoke his right to counsel in a manner sufficiently unambiguous and direct as to require the cessation of questioning. Agent Torres, confronted with an ambiguous statement, sought clarification and continued questioning only after Oquendo made clear that he was willing to proceed without an attorney. This was not a violation of Oquendo's right to counsel. III. Conclusion Oquendo's motion to suppress was correctly denied; that decision is now affirmed. Affirmed. -14-

01-03-2023

04-19-2014

https://www.courtlistener.com/api/rest/v3/opinions/996333/

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 98-6320 JOSEPH FREDERICK MOORE, Petitioner - Appellant, versus H. R. POWELL, Warden, Respondent - Appellee. Appeal from the United States District Court for the Eastern Dis- trict of Virginia, at Richmond. Robert E. Payne, District Judge. (CA-97-595-3) Submitted: August 27, 1998 Decided: September 17, 1998 Before NIEMEYER and HAMILTON, Circuit Judges, and BUTZNER, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Joseph Frederick Moore, Appellant Pro Se. Leah Ann Darron, Assis- tant Attorney General, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Appellant seeks to appeal the district court’s order denying relief on his petition filed under 28 U.S.C.A. § 2254 (West 1994 & Supp. 1998), as untimely filed. Appellant’s conviction became final before April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996. On August 5, 1997, Appellant filed a § 2254 petition. The district court denied relief because Appellant filed his petition outside the one-year limitation period imposed by 28 U.S.C.A. § 2244(d) (West 1994 & Supp. 1998). See Brown v. Angelone, ___ F.3d ___, Nos. 96-7173, 96-7208, 1998 WL 389030 (4th Cir. July 14, 1998) (holding that petitioner had until April 23, 1997, in which to file a timely petition). Because Appellant filed his § 2254 petition after April 23, 1997, and be- cause his second state post-conviction petition did not toll the limitation period, we find that the petition was untimely filed. See 28 U.S.C.A. § 2244(d)(1), (2). Accordingly, we deny a certifi- cate of appealability, deny Appellant’s motion to expedite the appeal as moot, and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 2

01-03-2023

07-04-2013

https://www.courtlistener.com/api/rest/v3/opinions/1081079/

IN THE COURT OF APPEALS OF TENNESSEE, WESTERN SECTION AT JACKSON _______________________________________________________ ) WILLIAM P. NEWTON, ) Shelby County Chancery Court ) No. 95025-3 R.D. VS. Plaintiff/Appellant. ) ) ) C. A. NO. 02A01-9604-CH-00086 FILED ) April 24, 1997 JAMES S. COX, ) ) Cecil Crowson, Jr. Defendant/Appellee. ) Appellate C ourt Clerk ) _____________________________________________________________________________ ORDER _____________________________________________________________________________ The appellee has filed a motion for a rehearing in this matter. Contrary to Appellee’s assertion, this Court did not rule that the contract between Ms. Newton and Mr. Cox was voided. Perhaps Appellee interpreted the portion on page 2 of our opinion which states that “the Supreme Court’s decision in Newton v. Cox, 878 S.W.2d 105 (Tenn.), cert. denied, 115 S. Ct. 1889 (1994), confirmed that Newton had the right to void the fee contract entered into by the parties” as referring to all of the parties to the contract rather than to the parties to the present suit, Mr. Newton and Mr. Cox. Appellee correctly asserts that the date from which post-judgment interest begins was not briefed or argued. However, this Court believes the applicable law is as set forth in our opinion. Therefore, the petition for rehearing is denied and costs are taxed to Mr. Cox. Enter this ____ day of ________, 1997. _____________________________________ FARMER, J. _____________________________________ CRAWFORD, P.J., W.S. _____________________________________ LILLARD, J.

01-03-2023

10-09-2013

https://www.courtlistener.com/api/rest/v3/opinions/3230570/

The witness having testified that meal and beer was found at the stills, the witness can then testify that the meal and beer found at defendant's still was used in the manufacture of spirituous liquors, although witness testified that he had never seen any whisky manufactured. The scientific knowledge as to the manufacture of whisky is not necessarily acquired by seeing the whisky made. Although the sheriff obtained information as to where the cap of the still was hidden from the defendant by a promise not to prosecute him for carrying a pistol, the statement, though involuntary, was admissible; *Page 447 the truth of the statement having been corroborated by a finding of the still cap in the place pointed out by defendant. This is one of the exceptions to the rule as to the admissibility of admissions. The facts warranted a submission of the case to the jury, and therefore the refusal of the affirmative charge was free from error. There is no error in the record, and the judgment is affirmed. Affirmed.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/4350311/

1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 2 Opinion Number: 3 Filing Date: December 13, 2018 4 NO. S-1-SC-34974 5 CATHY MOSES AND PAUL F. 6 WEINBAUM, 7 Plaintiffs-Petitioners, 8 v. 9 CHRISTOPHER RUSZKOWSKI, 10 Secretary of Education, New Mexico 11 Public Education Department, 12 Defendant-Respondent, 13 and 14 ALBUQUERQUE ACADEMY, et al., 15 Defendants/Intervenors-Respondents. 16 ORIGINAL PROCEEDING ON CERTIORARI 17 Sarah M. Singleton, District Judge 18 Graeser & McQueen, LLC 19 Christopher L. Graeser 20 Santa Fe, NM 21 Frank Susman 1 Santa Fe, NM 2 for Petitioners 3 New Mexico Public Education Department 4 Dawn E. Mastalir, General Counsel 5 Santa Fe, NM 6 Sutin, Thayer & Browne, P.C. 7 Susan M. Hapka 8 Albuquerque, NM 9 for Respondent 10 Modrall, Sperling, Roehl, Harris & Sisk, P.A. 11 Rufus E. Thompson 12 Jennifer G. Anderson 13 Sarah M. Stevenson 14 Albuquerque, NM 15 The Becket Fund for Religious Liberty 16 Eric S. Baxter 17 Washington, DC 18 for Intervenors-Respondents 1 OPINION 2 VIGIL, Justice. 3 {1} In this opinion we reconsider the constitutionality of New Mexico’s textbook 4 loan program. In Moses v. Skandera (Moses II), this Court considered whether using 5 public funds to lend textbooks to private school students violated Article XII, Section 6 3 support of any sectarian, denominational or private school, college or university.” 7 2015-NMSC-036, 367 P.3d 838, vacated sub nom., N.M. Ass’n of Non-public Sch. v. 8 Moses, 137 S. Ct. 2325 (2017) (mem.). This Court held “that the plain meaning and 9 history of Article XII, Section 3 forbids the provision of books for use by students 10 attending private schools, whether such schools are secular or sectarian.” Moses II, 11 2015-NMSC-036, ¶ 2. The United States Supreme Court subsequently vacated this 12 Court’s judgment and remanded the case for further consideration in light of Trinity 13 Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. ___, 137 S. Ct. 2012 (2017). 14 N.M. Ass’n of Non-public Sch.,137 S. Ct. 2325. 15 {2} On remand, we conclude that this Court’s previous interpretation of Article 16 XII, Section 3 raises concerns under the Free Exercise Clause of the First Amendment 17 to the United States Constitution. To avoid constitutional concerns, we hold that the 18 textbook loan program, which provides a generally available public benefit to 19 students, does not result in the use of public funds in support of private schools as 1 prohibited by Article XII, Section 3. We also hold that the textbook loan program is 2 consistent with Article IV, Section 31 of the New Mexico Constitution, which 3 addresses appropriations for educational purposes, and Article IX, Section 14 of the 4 New Mexico Constitution, which limits “any donation to or in aid of any person, 5 association or public or private corporation.” 6 I. BACKGROUND 7 {3} Cathy Moses and Paul F. Weinbaum (Petitioners) initiated this case by filing 8 a complaint for declaratory judgment against Hanna Skandera, the Secretary of the 9 New Mexico Public Education Department (Department).1 Petitioners sought a 10 declaration that the Instructional Material Law (IML), NMSA 1978, §§ 22-15-1 to - 11 14 (1967, as amended through 2011), violates several provisions of the New Mexico 12 Constitution because the IML provides for the distribution of public funds to private 13 schools. 14 {4} The IML establishes an instructional material fund that is administered by the 15 Department. See § 22-15-5(A). The Department uses the fund to purchase textbooks 16 that are loaned free of charge to public and private school students enrolled in first 17 1 Christopher Ruszkowski, the current Secretary of Education, has been 18 substituted for Hanna Skandera on remand. 2 1 through twelfth grades and in early childhood education programs. See §§ 22-15- 2 5(B), 22-15-7(A); see also § 22-15-2(C) (defining “instructional material,” which is 3 referred to collectively in this opinion as “textbooks”). Although schools play a role 4 in the implementation of the IML, they do so as agents for the benefit of their 5 students. See §§ 22-15-7(B), 22-15-8(B). The Department allocates the money in the 6 instructional material fund to schools based on the number of students enrolled. See 7 § 22-15-9(A). The schools select textbooks from a “multiple list” approved by the 8 Department. See §§ 22-15-2(D), 22-15-8(B). The IML permits schools to use a 9 portion of their allocated funds for the purchase of instructional materials, classroom 10 materials, and “items that are not on the multiple list; provided that no funds shall be 11 expended [by a private school] for religious, sectarian or nonsecular materials.” 12 Section 22-15-9(C). The Department distributes the textbooks to the schools, see § 13 22-15-7(B), and the schools disseminate the textbooks to their students, see § 22-15- 14 7(C). Schools are responsible for the safekeeping of the textbooks, id., and may hold 15 a student or parent “responsible for the loss, damage or destruction of” a textbook that 16 is “in the possession of the student.” Section 22-15-10(B). 17 {5} Petitioners moved for summary judgment in the district court. At a summary 18 judgment hearing, the district court indicated that it intended to grant the motion 3 1 based on Zellers v. Huff, 1951-NMSC-072, 55 N.M. 501, 236 P.2d 949 (addressing 2 issues concerning public funding of parochial schools and Catholic influence in 3 public schools). But before the district court entered summary judgment, Intervenors, 4 the Albuquerque Academy, the New Mexico Association of Non-public Schools, 5 Rehoboth Christian School, St. Francis School, Hope Christian School, Sunset Mesa 6 School, and Anica and Maya Benia moved to intervene. The district court granted the 7 motion to intervene and ordered the parties to submit additional briefing on whether 8 Zellers precluded the use of IML funds to purchase textbooks for distribution to 9 private schools. At a second summary judgment hearing, the district court concluded 10 that Zellers did not constitute binding or persuasive authority, denied Petitioners’ 11 motion for summary judgment, and granted summary judgment in favor of the 12 Department. The Court of Appeals affirmed. Moses v. Skandera (Moses I), 2015- 13 NMCA-036, ¶ 2, 346 P.3d 396, rev’d, 2015-NMSC-036, ¶¶ 12, 41. 14 {6} Petitioners sought review by this Court, raising five issues: 15 (1) whether this Court’s decision in Zellers constituted dicta; (2) 16 whether the IML violates Article XII, Section 3 of the New Mexico 17 Constitution; (3) whether the IML violates Article IV, Section 31 of the 18 New Mexico Constitution; (4) whether the IML violates Article IX, 19 Section 14 of the New Mexico Constitution; and (5) whether the IML 20 violates Article II, Section 11 of the New Mexico Constitution. 4 1 Moses II, 2015-NMSC-036, ¶ 11. This Court held that loaning textbooks to private 2 school students violated Article XII, Section 3 and declined to reach the remaining 3 issues. Moses II, 2015-NMSC-036, ¶ 12. 4 {7} The New Mexico Association of Non-public Schools filed a petition for a writ 5 of certiorari in the United States Supreme Court. The day after the Supreme Court 6 issued its opinion in Trinity Lutheran, 137 S. Ct. 2012, the Supreme Court granted 7 review of this Court’s opinion in Moses II, vacated this Court’s judgment, and 8 remanded the case to this Court for further consideration in light of Trinity Lutheran. 9 See N.M. Ass’n of Non-public Sch., 137 S. Ct. 2325. In accordance with the Supreme 10 Court’s directive, in this opinion we take a fresh look at the constitutionality of the 11 textbook loan program under the New Mexico Constitution. 12 II. DISCUSSION 13 {8} On remand, Petitioners argue that loaning textbooks to private school students 14 under the IML violates three provisions of the New Mexico Constitution: (1) Article 15 XII, Section 3, which prohibits the use of public funds “for the support of any 16 sectarian, denominational or private school, college or university”; (2) Article IV, 17 Section 31, which precludes an appropriation for “educational . . . purposes to any 18 person, corporation, association, institution or community, not under the absolute 5 1 control of the state”; and (3) Article IX, Section 14, which limits “any donation to or 2 in aid of any person, association or public or private corporation.” 3 {9} The Department and Intervenors argue that Article XII, Section 3, as 4 interpreted by the Court in Moses II, violates the Free Exercise Clause of the First 5 Amendment to the United States Constitution and the equal protection guarantees of 6 the federal and state constitutions. They ask this Court to interpret Article XII, 7 Section 3 in a manner that permits the state to loan textbooks to private school 8 students under the IML and assert that such an interpretation would be consistent 9 with the United States Constitution. 10 A. Standard of Review 11 {10} This Court applies a de novo standard of review to a constitutional challenge 12 to a statute. Bounds v. State ex rel. D’Antonio, 2013-NMSC-037, ¶ 11, 306 P.3d 457. 13 In doing so, we presume that the statute is valid and will uphold it “unless we are 14 satisfied beyond all reasonable doubt that the Legislature went outside the bounds 15 fixed by the Constitution in enacting the challenged legislation.” Id. (internal 16 quotation marks and citation omitted). “We will not question the wisdom, policy, or 17 justness of a statute, and the burden of establishing that the statute is invalid rests on 18 the party challenging the constitutionality of the statute.” Id. (internal quotation marks 6 1 and citation omitted). 2 B. Loaning Textbooks to Private School Students Under the IML Does Not 3 Constitute Support of Private Schools as Prohibited by Article XII, 4 Section 3 5 1. This Court’s previous interpretation of Article XII, Section 3 in Moses II 6 {11} This Court based its decision in Moses II, 2015-NMSC-036, on Article XII, 7 Section 3 of the New Mexico Constitution, which provides that 8 [t]he schools, colleges, universities and other educational institutions 9 provided for by this constitution shall forever remain under the 10 exclusive control of the state, and no part of the proceeds arising from 11 the sale or disposal of any lands granted to the state by congress, or any 12 other funds appropriated, levied or collected for educational purposes, 13 shall be used for the support of any sectarian, denominational or private 14 school, college or university. 15 To determine whether loaning textbooks to private school students constituted 16 support of private schools in violation of Article XII, Section 3, this Court considered 17 the historical circumstances that led to the provision’s adoption, including the 18 nationwide controversy over public education. See Moses II, 2015-NMSC-036, ¶¶ 19- 19 23. 20 {12} “During the early nineteenth century, public education was provided in public 21 schools known as common schools.” Moses II, 2015-NMSC-036, ¶ 19 (internal 22 quotation marks and citation omitted). These common schools were heavily 7 1 influenced by non-denominational Protestantism. See Mark Edward DeForrest, An 2 Overview and Evaluation of State Blaine Amendments: Origins, Scope, and First 3 Amendment Concerns, 26 Harv. J.L. & Pub. Pol’y 551, 559-60 (2003) (describing the 4 “overt fusion of Protestant faith with public education”); Joseph P. Viteritti, Blaine’s 5 Wake: School Choice, The First Amendment, and State Constitutional Law, 21 Harv. 6 J.L. & Pub. Pol’y 657, 666 (1998) (noting that the common schools promoted “the 7 teachings of mainstream Protestantism”). The Protestant-run common schools were 8 “ ‘designed to function as an instrument for the acculturation of immigrant 9 populations, rendering them good productive citizens in the image of the ruling 10 majority.’ ” Moses II, 2015-NMSC-036, ¶ 19 (quoting Viteritti, supra, at 668). “State 11 statutes at the time authorized Bible readings in public schools and state judges 12 generally refused to recognize the Bible as a sectarian book.” Id. 13 {13} “By the middle of the nineteenth century,” an “influx of Catholic immigrants 14 created a demand for Catholic education, and consequently Catholics and other 15 minority religionists challenged the Protestant influence in the common schools.” Id. 16 ¶ 20. Protestants responded by “calling for legislation prohibiting sectarian control 17 over public schools and the diversion of public funds to religious institutions.” Steven 18 K. Green, The Blaine Amendment Reconsidered, 36 Am. J. Legal Hist. 38, 43 (1992). 8 1 President Ulysses S. Grant entered the debate by vowing to “ ‘[e]ncourage free 2 schools, and resolve that not one dollar be appropriated to support any sectarian 3 schools.’ ” Moses II, 2015-NMSC-036, ¶ 21 (alteration in original) (emphasis added) 4 (quoting Viteritti, supra, at 670). At that time, “[i]t was an open secret that ‘sectarian’ 5 was code for ‘Catholic.’ ” Id. (internal quotation marks and citation omitted). 6 {14} In 1875, Congressman James G. Blaine proposed the following amendment to 7 the federal constitution: 8 No State shall make any law respecting an establishment of religion, or 9 prohibiting the free exercise thereof; and no money raised by taxation 10 in any State for the support of public schools, or derived from any public 11 fund therefor, [nor] any public lands devoted thereto, shall ever be under 12 the control of any religious sect; nor shall any money so raised or lands 13 so devoted be divided between religious sects or denominations. 14 Green, supra, at 38 n.2 (quoting 4 Cong. Rec. 5453 (1876)). This proposed 15 amendment to the federal constitution failed to pass, but similar provisions were soon 16 incorporated into state law. Moses II, 2015-NMSC-036, ¶ 23. “By 1876, fourteen 17 [s]tates had enacted legislation prohibiting the use of public funds for religious 18 schools; by 1890, twenty-nine [s]tates had incorporated such provisions into their 19 constitutions.” Viteritti, supra, at 673. 20 {15} Although many states voluntarily chose to adopt state constitutional provisions 9 1 based on the failed Blaine amendment, Congress forced New Mexico and other 2 territories seeking admission to the union to adopt Blaine provisions as a condition 3 of statehood. See DeForrest, supra, at 573-74; Viteritti, supra, at 673. Congress 4 passed the Enabling Act for New Mexico in 1910. See Enabling Act for New Mexico 5 of June 20, 1910, ch. 310, 36 Stat. 557. The Enabling Act required New Mexico to 6 establish and maintain “a system of public schools . . . free from sectarian control,” 7 id. § 2, and granted New Mexico “over thirteen million acres of federal land . . . to be 8 held in trust for the benefit of various public schools and other institutions.” State of 9 N.M. ex rel. King v. Lyons, 2011-NMSC-004, ¶ 5, 149 N.M. 330, 248 P.3d 878. The 10 Enabling Act further mandated 11 [t]hat the schools, colleges, and universities provided for in this Act 12 shall forever remain under the exclusive control of the said State, and no 13 part of the proceeds arising from the sale or disposal of any lands 14 granted herein for educational purposes shall be used for the support of 15 any sectarian or denominational school, college, or university. 16 Enabling Act § 8. “The Enabling Act required that the people of New Mexico 17 incorporate its mandates into the state constitution, and it specified that those 18 mandates could not be modified without the consent of Congress and a ratifying vote 19 of our citizens.” Lyons, 2011-NMSC-004, ¶ 4; see also N.M. Const. art. XXI, § 9 20 (consenting to Enabling Act provisions); N.M. Const. art. XXI, § 10 (making 10 1 Enabling Act provisions “irrevocable without the consent of the United States and the 2 people of this state”). 3 {16} The drafters of the New Mexico Constitution modeled Article XII, Section 3 4 on Section 8 of the Enabling Act but made two significant changes to the language 5 drafted by Congress. First, Article XII, Section 3 restricts “the use of proceeds from 6 any lands granted to New Mexico by Congress, not only those granted in the 7 Enabling Act.” Moses II, 2015-NMSC-036, ¶ 27. And second, Article XII, Section 8 3 restricts “the use of any funds appropriated, levied, or collected for educational 9 purposes for the support of not only sectarian schools, but also the much broader 10 category of private schools.” Moses II, 2015-NMSC-036, ¶ 27 (emphasis added). 11 “Through these changes, the Constitutional Convention decided to provide for 12 additional restrictions on public funding of education beyond the restrictions required 13 by Section 8 of the Enabling Act.” Moses II, 2015-NMSC-036, ¶ 27. “The members 14 of the Constitutional Convention chose to play it safe—by broadening the provision 15 to reach all private schools, they avoided drawing a line between secular and sectarian 16 education.” Id. 17 {17} In Moses II, this Court considered two interpretations of Article XII, Section 18 3: a permissive interpretation that would allow the state to lend textbooks to private 11 1 school students under the IML, and a restrictive interpretation that would preclude 2 such lending. Moses II, 2015-NMSC-036, ¶¶ 30-38. Our Court of Appeals had taken 3 the permissive approach, construing the limitations in Article XII, Section 3 as 4 coextensive with the limitations set forth in the Establishment Clause of the First 5 Amendment to the United States Constitution. See Moses I, 2015-NMCA-036, ¶ 34. 6 The Court of Appeals explained that the Establishment Clause, which prohibits 7 Congress from making any law “respecting an establishment of religion,” U.S. Const. 8 amend. I, does not bar a state from creating a textbook loan program that provides 9 secular instructional material for the benefit of students and their parents, “regardless 10 of the school of their attendance.” See Moses I, 2015-NMCA-036, ¶¶ 34-38. The 11 Court of Appeals concluded that although the IML may provide incidental or indirect 12 benefits to private schools, the IML does not violate Article XII, Section 3 because 13 students and their parents “are the direct recipients of the program’s financial 14 support.” Moses I, 2015-NMCA-036, ¶¶ 39-40. 15 {18} On certiorari, this Court observed that Article XII, Section 3 “stands as a 16 constitutional protection separate from the Establishment Clause” because it prohibits 17 the use of public funds for all private schools, not just religious schools. Moses II, 18 2015-NMSC-036, ¶¶ 17-18. This Court concluded that “Article XII, Section 3 must 12 1 be interpreted consistent with cases analyzing similar Blaine amendments under state 2 constitutions.” Moses II, 2015-NMSC-036, ¶ 32. State courts considering the 3 constitutionality of similar textbook loan programs have reached different results. 4 {19} Some jurisdictions have concluded that the Blaine provisions in their state 5 constitutions permit a textbook loan program despite incidental or collateral benefits 6 to religious schools. See, e.g., Borden v. La. State Bd. of Educ., 123 So. 655, 660-61 7 (La. 1929); Chance v. Miss. State Textbook Rating & Purchasing Bd., 200 So. 706, 8 713 (Miss. 1941) (in banc); Bd. of Educ. of Cent. Sch. Dist. No. 1 v. Allen, 228 N.E.2d 9 791, 793-94 (N.Y. 1967), aff’d, 392 U.S. 236 (1968). These jurisdictions have 10 emphasized that textbook loan programs are intended to benefit the student, not the 11 school, and that such programs advance the state’s legitimate public welfare concern 12 in promoting education. See Borden, 123 So. at 660-61 (concluding that school 13 children and the state, but not the schools, were the beneficiaries of the program); 14 Chance, 200 So. at 713 (concluding that lending secular textbooks to “individual 15 pupils” did not provide “a direct or indirect aid to the respective schools which they 16 attend” and that any benefit to the school was only incidental); Allen, 228 N.E.2d at 17 794 (explaining that the textbook program was intended to “bestow a public benefit 18 upon all school children” and that “any benefit accruing to” religious schools was 13 1 merely “a collateral effect” that “cannot be properly classified as the giving of aid 2 directly or indirectly”). 3 {20} Other states have chosen a more restrictive approach, interpreting the Blaine 4 provisions in their state constitutions to preclude the provision of any aid or benefit 5 to private religious schools. See, e.g., Cal. Teachers Ass’n v. Riles, 632 P.2d 953, 964 6 (Cal. 1981); Spears v. Honda, 449 P.2d 130, 135-36 (Haw. 1968); Bloom v. Sch. 7 Comm. of Springfield, 379 N.E.2d 578, 581-82 (Mass. 1978); Paster v. Tussey, 512 8 S.W.2d 97, 104-05 (Mo. 1974) (en banc); Gaffney v. State Dep’t of Educ., 220 9 N.W.2d 550, 554 (Neb. 1974); Dickman v. Sch. Dist. No. 62C, Or. City, of Clackamas 10 Cty, 366 P.2d 533, 541-42 (Or. 1961) (en banc); In re Certification of a Question of 11 Law from the U.S. Dist. Court, Dist. of S.D., S. Div., 372 N.W.2d 113, 116, 118 (S.D. 12 1985). These courts have reasoned that textbook loan programs help religious schools 13 fulfill their religious mission. See Cal. Teachers Ass’n, 632 P.2d at 962-63 (“[I]t is 14 an undeniable fact that books are a critical element in enabling the school to carry out 15 its essential mission to teach the students.”); Dickman, 366 P.2d at 544 (noting that 16 textbooks are an “integral part of the educational process” and that the teaching of 17 religious precepts is an inseparable part of that process). 18 {21} Faced with two competing interpretations of Article XII, Section 3, this Court 14 1 concluded that the more restrictive approach honored the intent behind the failed 2 Blaine amendment and the mandate set forth in the Enabling Act to ensure that no 3 public funds are used to support sectarian schools. See Moses II, 2015-NMSC-036, 4 ¶¶ 21, 27, 32. In reaching that conclusion, this Court did not attach any significance 5 to the inclusion of private schools in Article XII, Section 3; the restrictive approach 6 flowed from the intent underlying the Blaine amendment and the Enabling Act and 7 applied equally to sectarian and private schools. This Court thus held “that the plain 8 meaning and history of Article XII, Section 3 forbids the provision of books for use 9 by students attending private schools, whether such schools are secular or sectarian.” 10 Moses II, 2015-NMSC-036, ¶ 2. 11 2. Evolving First Amendment Law and Trinity Lutheran 12 {22} The religion clauses of the First Amendment provide that “Congress shall make 13 no law respecting an establishment of religion, or prohibiting the free exercise 14 thereof.” U.S. Const. amend. I. On remand we must consider whether this Court’s 15 interpretation of Article XII, Section 3 in Moses II conflicts with the First 16 Amendment principles enunciated by the United States Supreme Court in Trinity 17 Lutheran, 137 S. Ct. 2012. 18 {23} The Supreme Court described the relationship between the religion clauses in 15 1 Everson v. Board of Education of Ewing Township, 330 U.S. 1 (1947). Everson 2 involved a New Jersey program that reimbursed parents for school bus fares incurred 3 by both public and private school students, including students who attended religious 4 schools. Id. at 3. The Court opined that “New Jersey cannot consistently with the 5 [Establishment Clause] contribute tax-raised funds to the support of an institution 6 which teaches the tenets and faith of any church.” Id. at 16. “On the other hand, [the 7 Free Exercise Clause] commands that New Jersey cannot hamper its citizens in the 8 free exercise of their own religion.” Id. Given these competing concerns, the Court 9 was “careful, in protecting the citizens of New Jersey against state-established 10 churches, to be sure that [it did] not inadvertently prohibit New Jersey from extending 11 its general [s]tate law benefits to all its citizens without regard to their religious 12 belief.” Id. The Court concluded that the Establishment Clause did not prohibit New 13 Jersey from providing bus fares to religious school students “as a part of a general 14 program.” Id. at 17. The Court explained that the state must remain “neutral in its 15 relations with groups of religious believers and non-believers” when providing 16 “general government services,” such as “police and fire protection, connections for 17 sewage disposal, public highways and sidewalks.” Id. at 17-18. 18 {24} Since Everson, the Supreme Court has issued multiple opinions analyzing 16 1 whether the Establishment Clause permits the government to provide benefits or aid 2 to religious schools or their students. See, e.g., Zelman v. Simmons-Harris, 536 U.S. 3 639, 644-45, 652, 663 (2002) (upholding a publicly financed school voucher program 4 that was neutral with respect to religion and provided aid to families who exercised 5 an independent choice regarding whether to enroll in public or private school); 6 Mitchell v. Helms, 530 U.S. 793, 801, 829, 835 (2000) (plurality opinion) (upholding 7 a program that loaned secular educational materials to public and private schools on 8 the basis of neutral, secular criteria); Zobrest v. Catalina Foothills Sch. Dist., 509 9 U.S. 1, 3,13-14 (1993) (permitting a local school district to provide a publicly 10 employed interpreter for a deaf student who attended parochial school); Bd. of Educ. 11 of Cent. Sch. Dist. No. 1 v. Allen, 392 U.S. 236, 238, 243 (1968) (upholding a New 12 York law under which secular textbooks were loaned to public and private school 13 students). 14 {25} While there have been many opinions addressing whether the Establishment 15 Clause permits a state to provide aid or benefits to a religious school or its students, 16 the Supreme Court has only recently begun to consider the circumstances under 17 which the Free Exercise Clause requires a state to do so. In Locke v. Davey, the Court 18 analyzed a Washington scholarship program that prohibited recipients from using 17 1 scholarship money to pursue “a degree in devotional theology.” 540 U.S. 712, 715 2 (2004). The Court concluded that the Establishment Clause permitted Washington to 3 give scholarship money to theology students because “the link between government 4 funds and religious training [was] broken by the independent and private choice of 5 recipients.” Id. at 719. But the Court held that Washington could nonetheless exclude 6 theology students from the scholarship program under the Washington Constitution 7 without violating the Free Exercise Clause. Id. at 725. The Court explained 8 Washington’s restrictions on scholarship recipients fell into the “play in the joints” 9 between what the Establishment Clause permits and the Free Exercise Clause 10 requires. Id. at 718-19 (internal quotation marks and citation omitted). In other words, 11 although Washington could give scholarship money to recipients pursuing a degree 12 in theology without violating the Establishment Clause, it did not have to do so. 13 Washington’s interest against “funding religious instruction” to “prepare students for 14 the ministry” provided a valid basis for excluding theology students from the 15 scholarship program and did not violate their rights under the Free Exercise Clause. 16 Id. at 719; see also id. at 725 (“If any room exists between the two Religion Clauses, 17 it must be here.”). 18 {26} In Trinity Lutheran, the Supreme Court considered whether the Free Exercise 18 1 Clause required Missouri to include religious schools in a program that provided 2 grants to schools and other entities to resurface playgrounds with recycled tire rubber. 3 137 S. Ct. at 2017. The preschool at Trinity Lutheran Church applied for a grant, but 4 the state deemed the preschool categorically ineligible to receive a grant based on 5 restrictions set forth in article I, section 7 of the Missouri Constitution. Trinity 6 Lutheran, 137 S. Ct. at 2017-18. Article I, section 7 provides 7 [t]hat no money shall ever be taken from the public treasury, directly or 8 indirectly, in aid of any church, sect or denomination of religion, or in 9 aid of any priest, preacher, minister or teacher thereof, as such; and that 10 no preference shall be given to nor any discrimination made against any 11 church, sect or creed of religion, or any form of religious faith or 12 worship. 13 Trinity Lutheran Church sued, arguing that Missouri’s policy of denying grants based 14 on the religious identity of the applicant violated the Free Exercise Clause. Trinity 15 Lutheran, 137 S. Ct. at 2018. The federal district court ruled in favor of the state, 16 reasoning that the case was controlled by Locke and that the Free Exercise Clause did 17 “not prohibit withholding an affirmative benefit on account of religion.” Trinity 18 Lutheran, 137 S. Ct. at 2018. The Eighth Circuit Court of Appeals affirmed, 19 concluding that the Free Exercise Clause did not compel Missouri “to disregard the 20 antiestablishment principle” embodied in its state constitution. Id. at 2018-19. 19 1 {27} The Supreme Court reversed, holding that Missouri’s policy of excluding 2 religious entities from the grant program violated the Free Exercise Clause. Id. at 3 2024. The Court confirmed that a state’s denial of “a generally available benefit 4 solely on account of religious identity” violates the Free Exercise Clause unless 5 “justified . . . by a state interest of the highest order.” Id. at 2019 (internal quotation 6 marks and citation omitted). The Court concluded that Missouri’s policy implicated 7 the Free Exercise Clause because it “expressly discriminate[d] against otherwise 8 eligible recipients by disqualifying them from a public benefit solely because of their 9 religious character.” Id. at 2021. The Court also determined that Missouri’s interest 10 in “skating as far as possible from religious establishment concerns” was insufficient 11 to justify its discriminatory policy. Id. at 2024. The Court did not analyze the 12 constitutionality of the Missouri policy under the Establishment Clause because the 13 parties stipulated that Missouri could provide playground resurfacing grants to 14 religious preschools without violating the Establishment Clause. Id. at 2019. But see 15 id. at 2028 (Sotomayor, J. dissenting) (opining that the Establishment Clause 16 precluded Missouri from giving a grant to the church for playground resurfacing 17 because the church uses its facilities “to practice and spread its religious views”). We 18 discuss the holding and implications of Trinity Lutheran later in this opinion. 20 1 3. Reconsideration of Moses II in light of Trinity Lutheran 2 {28} Petitioners argue that Trinity Lutheran does not require reversal of this Court’s 3 holding in Moses II because Article XII, Section 3 treats all private schools alike, 4 whether religious or secular, and does not discriminate “solely on account of religious 5 identity.” See Trinity Lutheran, 137 S. Ct. at 2019. The Department and Intervenors 6 argue that despite its facial neutrality, Article XII, Section 3, as interpreted by this 7 Court in Moses II, violates the Free Exercise Clause because Article XII, Section 3 8 was adopted as a result of animus toward Catholics. The Department and Intervenors 9 also assert that the decisions from other states on which this Court relied in Moses II, 10 2015-NMSC-036, ¶¶ 32-38, are suspect following Trinity Lutheran. 11 {29} In Trinity Lutheran, the Supreme Court changed the landscape of First 12 Amendment law. Under Trinity Lutheran, if a state permits private schools to 13 participate in a generally available public benefit program, the state must provide the 14 benefit to religious schools on equal terms. See 137 S. Ct. at 2022 (“The express 15 discrimination against religious exercise here is not the denial of a grant, but rather 16 the refusal to allow the Church—solely because it is a church—to compete with 17 secular organizations for a grant.”). Trinity Lutheran was the first Supreme Court 18 opinion to hold that the Free Exercise Clause required a state to provide public funds 21 1 directly to a religious institution. See 137 S. Ct. at 2027 (Sotomayor, J., dissenting) 2 (“The Court today profoundly changes [the] relationship [between church and state] 3 by holding, for the first time, that the Constitution requires the government to provide 4 public funds directly to a church.”). The Supreme Court also emphasized that a state’s 5 interest in maintaining church-state separation does not justify the withholding of 6 generally available public benefits based on the religious status of the recipient. Id. 7 at 2024. 8 {30} Like the grant program at issue in Trinity Lutheran, the textbook loan program 9 under the IML is a generally available public benefit program. See Moses II, 10 2015-NMSC-036, ¶ 28 (acknowledging “that the provision of school books for 11 children attending both public and private schools constitutes ‘a public service’ ”). 12 And this Court in Moses II, like Missouri in Trinity Lutheran, limited the availability 13 of the program based on restrictions in our state constitution on the expenditure of 14 public funds. 15 {31} But there is a critical difference between Article XII, Section 3 of the New 16 Mexico Constitution and article I, section 7 of the Missouri Constitution. Specifically, 17 Article XII, Section 3 of the New Mexico Constitution does not make a distinction 18 based solely on religious status, whereas article I, section 7 of the Missouri 22 1 Constitution does. Compare N.M. Const. art. XII, § 3 (providing that no “funds 2 appropriated, levied or collected for educational purposes, shall be used for the 3 support of any sectarian, denominational or private school, college or university”), 4 with Mo. Const. art. I, § 7 (providing “[t]hat no money shall ever be taken from the 5 public treasury, directly or indirectly, in aid of any church, sect or denomination of 6 religion”). 7 {32} Article XII, Section 3, as interpreted in Moses II, 2015-NMSC-036, enunciates 8 a facially neutral policy of prohibiting the expenditure of public funds to support 9 private schools, both religious and secular. Article XII, Section 3 does not disqualify 10 religious individuals or entities from receiving public benefits based solely on their 11 religious status. Instead, it creates a distinction between public schools and private 12 schools. The First Amendment requires government neutrality toward religious 13 viewpoints; it does not require the state to treat public schools and private schools 14 alike. 15 {33} Although Article XII, Section 3 is facially neutral toward religion, the Free 16 Exercise Clause may still be implicated if its adoption was motivated by religious 17 animus. In Trinity Lutheran, the Supreme Court recognized a distinction between 18 laws that “single out the religious for disfavored treatment” and laws that are “neutral 23 1 and generally applicable without regard to religion.” 137 S. Ct. at 2020. “[A] law that 2 is neutral and of general applicability need not be justified by a compelling 3 governmental interest even if the law has the incidental effect of burdening a 4 particular religious practice.” Church of the Lukumi Babalu Aye, Inc. v. City of 5 Hialeah, 508 U.S. 520, 531 (1993). But “if the object of a law is to infringe upon or 6 restrict practices because of their religious motivation, the law is not neutral.” Id. at 7 533. “Facial neutrality is not determinative.” Id. at 534. The Free Exercise Clause 8 “forbids subtle departures from neutrality and covert suppression of particular 9 religious beliefs.” Id. (internal quotation marks and citations omitted). 10 {34} Evolving First Amendment jurisprudence suggests that courts should consider 11 the historical and social context underlying a challenged government action to 12 determine whether the action was neutral or motivated by hostility toward religion. 13 “Factors relevant to the assessment of governmental neutrality include the historical 14 background of the decision under challenge, the specific series of events leading to 15 the enactment or official policy in question, and the legislative or administrative 16 history, including contemporaneous statements made by members of the 17 decisionmaking body.” Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 18 138 S. Ct. 1719, 1731 (2018) (internal quotation marks and citation omitted); see id. 24 1 at 1729-31 (citing hostile comments from members of the Colorado Civil Rights 2 Commission and the commission’s inconsistent treatment of religious discrimination 3 and sexual-orientation discrimination to conclude that the commission’s treatment of 4 a cake shop owner “violated the [s]tate’s duty under the First Amendment not to base 5 laws or regulations on hostility to a religion or religious viewpoint”); Trump v. 6 Hawaii, 138 S. Ct. 2392, 2417 (2018) (considering extrinsic evidence of anti-Muslim 7 animus when determining the constitutionality of a presidential proclamation). 8 {35} In Moses II, this Court acknowledged that the federal Blaine amendment 9 originated in anti-Catholic prejudice and that Congress, through the Enabling Act, 10 forced New Mexico to adopt a Blaine provision as a condition of statehood. Moses 11 II, 2015-NMSC-036, ¶¶ 19-24. The United States Supreme Court likewise has 12 recognized that the federal Blaine amendment was a product of anti-Catholic animus. 13 See Mitchell, 530 U.S. at 828 (“Consideration of the amendment arose at a time of 14 pervasive hostility to the Catholic Church and to Catholics in general, and it was an 15 open secret that ‘sectarian’ was code for ‘Catholic.’ ”); see also Zelman, 536 U.S. at 16 720-21 (Breyer, J., dissenting) (explaining that “the Protestant position . . . was that 17 public schools must be nonsectarian (which was usually understood to allow Bible 18 reading and other Protestant observances) and public money must not support 25 1 sectarian schools (which in practical terms meant Catholic”) (internal quotation marks 2 and citation omitted)). This history casts constitutional doubt on the motive 3 underlying Article XII, Section 3. We therefore consider whether the history or 4 circumstances in New Mexico that led to the adoption of Article XII, Section 3 cured 5 the provision’s anti-Catholic origins. 6 4. History of public and sectarian schools in New Mexico 7 {36} New Mexico has a unique history and culture, and the public school debate 8 within New Mexico took a different course than the debate at the national level. 9 Formal schooling commenced in New Mexico with the arrival of the first Franciscan 10 missionaries over four hundred years ago. See Kathleen Holscher, Religious Lessons: 11 Catholic Sisters and the Captured Schools Crisis in New Mexico 28 & 206 n.13 12 (2012). “Under both Spanish and Mexican rule, the Roman Catholic 13 Church . . . handled all education with little interference from secular forces.” Robert 14 W. Larson, New Mexico’s Quest for Statehood: 1846-1912 101 (1968). During that 15 time period, “New Mexico’s remote location, its rugged landscape, and its struggling 16 economy made a centralized system of schools no more than a far-off hope.” 17 Holscher, supra, at 28. 18 {37} In 1848, Mexico ceded present-day New Mexico to the United States, and in 26 1 1850, New Mexico became a territory. See Treaty of Peace, Friendship, Limits, and 2 Settlement With the Republic of Mexico (Treaty of Guadalupe Hidalgo), 9 Stat. 922 3 (1848); Torrez v. Bd. of Cty. Comm’rs, Socorro Cty., 1901-NMSC-002, ¶ 3, 10 N.M. 4 670, 65 P. 181. When New Mexico became a territory, the overwhelming majority of 5 its population consisted of native-born New Mexicans. See Holscher, supra, at 31 6 (“In 1850, ninety-five percent of New Mexico’s population was native born, either 7 Hispano or Native American.”). Catholic Church leaders established new parochial 8 schools during the early territorial days, and the Church maintained control over 9 education in New Mexico into the 1870s. See Dianna Everett, The Public School 10 Debate in New Mexico: 1850-1891, 26 Arizona and the West 107, 108-09 (1984) 11 (describing the work of “the first bishop of the Diocese of Santa Fe, John B. Lamy,” 12 and “Father Donato Maria Gasparri, Superior of the Society of Jesus in New 13 Mexico”). Both New Mexico’s public schools and its parochial schools employed 14 members of the Catholic clergy as teachers and used textbooks published by a 15 Catholic printing press. See Howard R. Lamar, The Far Southwest 1846-1912: A 16 Territorial History 144-45 (rev. ed. 2000); see also Holscher, supra, at 38 (explaining 17 that “schools taught by Catholic religious” were some of the first to receive public 18 funding and that a Jesuit printing press “supplied textbooks to many of the territory’s 27 1 tax-supported schools”). New Mexico remained “overwhelmingly Spanish-American 2 in culture . . . and Roman Catholic in religion” throughout the territorial period. See 3 Lamar, supra, at 3. 4 {38} Although native New Mexicans remained a majority, the number of Anglo- 5 American Protestants in New Mexico increased significantly between 1850 and 1910. 6 See Holscher, supra, at 31. “Anglo-American transplants to New Mexico introduced 7 a series of proposals for public education.” Holscher, supra, at 26. These proposals 8 met resistance because they “relied on the familiarly Protestant objection to 9 sectarianism” and sought “to eliminate Catholic influence.” Id. at 38, 40; see also 10 Lamar, supra, at 144-45, 162-64 (describing opposition to public school proposals 11 by Catholic Church leaders and Spanish-American members of the legislature); 12 Charles E. Smith, The New Mexico State Constitution 13 (2011) (“[T]he Catholic 13 Church had enjoyed the position of primacy in education for three centuries, and 14 Catholic leaders were suspicious of public schools.”). “Between 1850 and 1891, New 15 Mexico’s government failed at multiple attempts to inaugurate a system of tax- 16 supported schools.” Holscher, supra, at 37. The ongoing debate over public education 17 evidenced “mounting hostility between public education advocates and the 18 Archdiocese of Santa Fe,” Holscher, supra, at 38, and was one of the most pressing 28 1 problems facing the territorial legislature, see Larson, supra, at 65. 2 {39} Perceived problems with New Mexico’s educational system and widespread 3 illiteracy also posed obstacles to New Mexico becoming a state. See David V. Holtby, 4 Forty-Seventh Star: New Mexico’s Struggle for Statehood 54-55 (2012); Holscher, 5 supra, at 38-39; Lamar, supra, at 162; Larson, supra, at 65, 124-25. Concerns about 6 New Mexico’s educational system were exacerbated by “strong prejudice toward [its] 7 Spanish-speaking, Roman Catholic people.” See Larson, supra, at 303-04; see also 8 State ex rel. League of Women Voters of N.M. v. Advisory Comm. to the N.M. 9 Compilation Comm’n, 2017-NMSC-025, ¶¶ 29, 32, 401 P.3d 734 (concluding that 10 “decades of hostility toward New Mexico’s Spanish-speaking population” delayed 11 New Mexico’s admission to the union); Larson, supra, at 124-25 (explaining that the 12 “Catholicism of native New Mexicans was used in a particularly insidious way” and 13 that the Catholic Church was implicated “in the high percentage of illiteracy”). 14 “Anglo-Protestant apprehension about Catholic influence motivated official scrutiny 15 of the Church’s role in schooling as soon as New Mexico became part of the United 16 States.” Holscher, supra, at 37; see also Lamar, supra, at 144 (explaining that 17 officials viewed New Mexico’s schools with disfavor because classes were “Catholic 18 in orientation” and taught in Spanish). “[B]y the last quarter of the century everyone 29 1 understood that the territory’s prospects for joining the Union depended upon the 2 condition of its educational system. Above all, statehood would require schools free 3 from Catholic influence.” Holscher, supra, at 38. 4 {40} In 1891, the territorial legislature passed “an act establishing common schools 5 in the territory of New Mexico and creating the office of superintendent of public 6 instruction.” 1891 N.M. Laws, ch. 25. The 1891 act was “intended to establish a 7 comprehensive and harmonious system of public schools throughout the territory.” 8 Water Supply Co. of Albuquerque v. City of Albuquerque, 1898-NMSC-023, ¶ 9, 9 9 N.M. 441, 54 P. 969. The 1891 act made school attendance compulsory and served 10 as a precursor to the IML by authorizing free textbooks for a child whose “parent or 11 guardian [was] not able by reason of poverty to buy books.” 1891 N.M. Laws, ch. 25, 12 § 42. In 1903, the 1891 act was amended to clarify that the textbooks were only 13 loaned to the children and that ownership remained with the school districts. See 1903 14 N.M. Laws, ch. 39, § 2. 15 {41} When Congress passed the Enabling Act for New Mexico in 1910, New 16 Mexico’s centralized public school system had been in place for almost two decades. 17 “New Mexico held a constitutional convention that same fall in Santa Fe, and nearly 18 a third of the convention’s one hundred elected delegates were native 30 1 Spanish-speakers.” State ex rel. League of Women Voters of N.M., 2017-NMSC-025, 2 ¶ 32. The delegates drafted an array of constitutional provisions related to education. 3 Consistent with the 1891 act, the New Mexico Constitution requires the state to 4 establish and maintain a “uniform system of free public schools sufficient for the 5 education of, and open to, all the children of school age in the state.” N.M. Const. art. 6 XII, § 1. The Constitution also includes explicit protections for the educational rights 7 of New Mexico’s Spanish-speaking citizens. State ex rel. League of Women Voters 8 of N.M., 2017-NMSC-025, ¶ 26; see N.M. Const. art. XII, § 8 (“The legislature shall 9 provide for the training of teachers in the normal schools or otherwise so that they 10 may become proficient in both the English and Spanish languages, to qualify them 11 to teach Spanish-speaking pupils and students in the public schools and educational 12 institutions of the state, and shall provide proper means and methods to facilitate the 13 teaching of the English language and other branches of learning to such pupils and 14 students.”); N.M. Const. art. XII, § 10 (“Children of Spanish descent in the state of 15 New Mexico shall never be denied the right and privilege of admission and 16 attendance in the public schools or other public educational institutions of the state, 17 and they shall never be classed in separate schools, but shall forever enjoy perfect 18 equality with other children in all public schools and educational institutions of the 31 1 state, and the legislature shall provide penalties for the violation of this section.”). 2 The provisions protecting the educational rights of Spanish speakers were 3 safeguarded with a heightened amendment requirement and cannot be changed 4 without at least three-fourths of the popular vote in a statewide election. State ex rel. 5 League of Women Voters of N.M., 2017-NMSC-025, ¶¶ 25-26. 6 {42} The constitutional delegation that incorporated explicit protections for Spanish- 7 speaking students into the New Mexico Constitution also drafted Article XII, Section 8 3, which extended the Enabling Act’s restrictions on public funding for “sectarian 9 [and] nondenominational school[s]” to also include “private schools.” We cannot 10 ascertain what motivated the delegates to draft Article XII, Section 3. See Hunter v. 11 Underwood, 471 U.S. 222, 228 (1985) (noting the difficulty of “determining the 12 actual motivations of the various legislators” that make up a constitutional 13 delegation); see also Smith, supra, at 17 (noting that no verbatim record was made 14 of the constitutional convention). But under the circumstances, it appears that the 15 drafters of Article XII, Section 3 intended to create a provision that would be 16 acceptable to New Mexico voters while fulfilling the mandate set forth in the New 17 Mexico Enabling Act. See Dorothy I. Cline, New Mexico’s 1910 Constitution: A 19th 18 Century Product 26-27, 45 n.31, 46 (1985) (explaining that despite a deep political 32 1 divide between Republicans and Democrats, the constitutional delegates “agreed it 2 was essential to guarantee the civil, religious and political rights” of native New 3 Mexicans). In the absence of sufficient proof that New Mexico adopted Article XII, 4 Section 3 for a discriminatory purpose, we decline to impute an impermissible motive 5 to the constitutional delegation and New Mexico voters, who approved the 6 Constitution “by an overall majority of three to one.” See Cline, supra, at 52. 7 5. We adopt a construction of Article XII, Section 3 that avoids free exercise 8 concerns 9 {43} Even though it appears that the people of New Mexico intended for Article XII, 10 Section 3 to be a religiously neutral provision, the history of the federal Blaine 11 amendment and the New Mexico Enabling Act lead us to conclude that anti-Catholic 12 sentiment tainted its adoption. New Mexico was caught up in the nationwide 13 movement to eliminate Catholic influence from the school system, and Congress 14 forced New Mexico to eliminate public funding for sectarian schools as a condition 15 of statehood. In Moses II, this Court looked to the history of the federal Blaine 16 amendment and the Enabling Act to conclude that Article XII, Section 3 was intended 17 to preclude any whisper of support for private schools. Moses II, 2015-NMSC-036, 18 ¶¶ 19-24, 32. After Trinity Lutheran and the cases interpreting the Free Exercise 33 1 Clause that have followed, we must reconsider our conclusion through a different 2 lens, one that focuses on discriminatory intent. 3 {44} Prior to Trinity Lutheran, this Court’s interpretation of Article XII, Section 3 4 in Moses II fell into the “play in the joints” between what the Establishment Clause 5 permits and what the Free Exercise Clause requires. See Locke, 540 U.S. at 719 6 (noting that “there are some state actions permitted by the Establishment Clause but 7 not required by the Free Exercise Clause”). In other words, in Moses II we concluded 8 that New Mexico’s interest in restricting public funding for private schools was a 9 lawful basis for restricting funding for religious schools. Following Moses II, the 10 Supreme Court emphasized that the Free Exercise Clause is implicated by a law that 11 “single[s] out the religious for disfavored treatment.” Trinity Lutheran, 137 S. Ct. at 12 2020. The Supreme Court has since underscored the state’s constitutional duty to 13 avert religious discrimination. See Masterpiece Cakeshop, 138 S. Ct. at 1731 (“The 14 Constitution commits government itself to religious tolerance, and upon even slight 15 suspicion that proposals for state intervention stem from animosity to religion or 16 distrust of its practices, all officials must pause to remember their own high duty to 17 the Constitution and to the rights it secures.”). Thus, we conclude that this Court’s 18 previous interpretation of Article XII, Section 3 in Moses II raises concerns under the 34 1 Free Exercise Clause. 2 {45} When interpreting the New Mexico Constitution, we avoid a construction that 3 raises concerns under the federal constitution. See State v. Radosevich, 4 2018-NMSC-028, ¶ 8, 419 P.3d 176 (recognizing “the well-established principle of 5 statutory construction that statutes should be construed, if possible, to avoid 6 constitutional questions” (internal quotation marks and citation omitted)); State ex 7 rel. State Highway Comm’n v. City of Aztec, 1967-NMSC-046, ¶ 9, 77 N.M. 524, 424 8 P.2d 801 (“[P]rinciples governing the construction of statutes apply also to the 9 interpretation of constitutions[.]”). When a state constitutional provision “is 10 susceptible to two constructions, one supporting it and the other rendering it void,” 11 this Court “should adopt the construction which upholds its constitutionality.” See 12 N.M. State Bd. of Educ. v. Bd. of Educ. of Alamogordo Pub. Sch. Dist. No. 1, 13 1981-NMSC-031, ¶ 26, 95 N.M. 588, 624 P.2d 530. 14 {46} To avoid constitutional concerns, we adopt a construction of Article XII, 15 Section 3 that does not implicate the Free Exercise Clause under Trinity Lutheran. 16 We have previously held that Article XII, Section 3 serves the dual purposes of 17 ensuring that the state maintains control over the public education system and that the 18 public schools do not become religious schools. Prince v. Bd. of Educ. of Cent. 35 1 Consol. Indep. Sch. Dist. No. 22, 1975-NMSC-068, ¶ 20, 88 N.M. 548, 543 P.2d 2 1176. The IML neither divests the state of control over the public schools nor affects 3 the non-religious character of the public schools. Like the 1891 act establishing New 4 Mexico’s public school system, the IML grants students access to appropriate 5 textbooks regardless of their parents’ financial resources, which helps students fulfill 6 their duty to attend school. See N.M. Const. art. XII, § 5 (making school attendance 7 compulsory); NMSA 1978, § 22-12-2(A) (2015) (same). The textbook loan program 8 furthers New Mexico’s legitimate public interest in promoting education and 9 eliminating illiteracy. See NMSA 1978, § 22-1-1.2(E) (2015) (setting forth the 10 Legislature’s finding that “improving children’s reading and writing abilities and 11 literacy throughout their years in school must remain a priority of the state”). We 12 conclude that the IML provides a public benefit to students and a resulting benefit to 13 the state. Any benefit to private schools is purely incidental and does not constitute 14 “support” within the meaning of Article XII, Section 3. We hold that loaning secular 15 textbooks to private school students under the IML does not violate Article XII, 16 Section 3. 17 C. The IML Does Not Result in Any Appropriation to a Person or Entity Not 18 Under the Absolute Control of the State as Prohibited by Article IV, 19 Section 31 36 1 {47} Petitioners argue that lending textbooks to private school students under the 2 IML violates Article IV, Section 31, which provides in relevant part, “No 3 appropriation shall be made for charitable, educational or other benevolent purposes 4 to any person, corporation, association, institution or community, not under the 5 absolute control of the state.” The Department and Intervenors argue that the IML 6 does not implicate Article IV, Section 31. We agree with the Department and 7 Intervenors. 8 {48} Article IV, Section 31 imposes limits on the Legislature’s authority to 9 appropriate money. Under the IML, appropriations are made only to the Department. 10 See § 22-15-5(A). The Department is an executive agency established by the New 11 Mexico Constitution and is under the absolute control of the state. See N.M. Const. 12 art. XII, § 6(A); see also NMSA 1978, § 22-2-1(B) (2004) (setting forth the general 13 powers of the Department). The IML does not result in an appropriation to any person 14 or entity not under the absolute control of the state. The fact that students derive a 15 benefit from the IML does not implicate Article IV, Section 31. Compare State ex rel. 16 Interstate Stream Comm’n v. Reynolds, 1963-NMSC-023, ¶¶ 16-17, 71 N.M. 389, 17 378 P.2d 622 (holding that although certain communities and nonprofit organizations 18 would benefit from appropriations to the State Engineer, the appropriations did not 37 1 implicate Article IV, Section 31 because the State Engineer retained absolute control 2 over their expenditure), with Harrington v. Atteberry, 1915-NMSC-058, ¶¶ 66-67, 21 3 N.M. 50, 153 P. 1041 (Hanna, J., concurring in result) (majority of three-justice panel 4 concluding that appropriation of funds to the fair association violated Article IV, 5 Section 31 because the funds did not remain under the control of the state). We hold 6 that the IML does not result in any appropriation to a person or entity not under the 7 absolute control of the state as prohibited by Article IV, Section 31. 8 D. Loaning Textbooks to Students Under the IML Does Not Constitute a 9 Donation to Any Person or Entity as Prohibited by Article IX, Section 14 10 {49} Petitioners argue that lending textbooks to private school students under the 11 IML violates the anti-donation clause of Article IX, Section 14, which provides, 12 “Neither the state nor any county, school district or municipality, except as otherwise 13 provided in this constitution, shall directly or indirectly lend or pledge its credit or 14 make any donation to or in aid of any person, association or public or private 15 corporation.” Petitioners do not contend that the IML results in the lending or 16 pledging of government credit. Thus, the IML implicates the anti-donation clause 17 only if a textbook loan constitutes a “donation” within the meaning of Article IX, 18 Section 14. The Department and Intervenors argue that the IML does not violate 38 1 Article IX, Section 14 because a textbook loan is not a donation. We agree with the 2 Department and Intervenors. 3 {50} This Court has defined donation, for purposes of Article IX, Section 14, as “a 4 gift, an allocation or appropriation of something of value, without consideration.” 5 Vill. of Deming v. Hosdreg Co., 1956-NMSC-111, ¶ 36, 62 N.M. 18, 303 P.2d 920 6 (per curiam) (internal quotation marks omitted). Article IX, Section 14 permits 7 “incidental aid or resultant benefit to a private corporation or other named recipients” 8 unless the aid or benefit “by reason of its nature and the circumstances surrounding 9 it, take on character as a donation in substance and effect.” Vill. of Deming, 1956- 10 NMSC-111, ¶¶ 34, 37. This Court has found violations of the anti-donation clause in 11 circumstances involving an outright gift of public money to a private individual or 12 entity. See, e.g., Chronis v. State ex rel. Rodriguez, 1983-NMSC-081, ¶¶ 24, 30, 100 13 N.M. 342, 670 P.2d 953 (holding that a law granting liquor licensees a credit against 14 gross receipts taxes owed to state constituted an unconstitutional subsidy to the liquor 15 industry); State ex rel. Mechem v. Hannah, 1957-NMSC-065, ¶¶ 18, 40, 63 N.M. 110, 16 314 P.2d 714 (holding unconstitutional a law granting “an outright gift” of public 17 funds to ranchers and farmers to purchase livestock feed in times of drought); 18 Hutcheson v. Atherton, 1940-NMSC-001, ¶¶ 24, 35, 44 N.M. 144, 99 P.2d 462 39 1 (holding unconstitutional the appropriation of bond money to finance auditoriums for 2 use by private corporations because the aid was “direct and substantial”). 3 {51} In this case, the textbook loan program does not involve any donation or gift 4 to students or private schools. The Department merely loans textbooks to students for 5 use while attending school. See §§ 22-15-7, 22-15-10(B). The Department retains 6 ownership and control over the textbooks and the fund used to purchase them. See §§ 7 22-15-4(B), 22-15-5(A), 22-15-10(E). We hold that loaning textbooks to students 8 under the IML does not involve a donation to any person or entity as prohibited by 9 Article IX, Section 14. 10 E. Equal Protection Clauses of the State and Federal Constitutions 11 {52} The Department and Intervenors argue that excluding private school students 12 from participation in the textbook loan program violates the equal protection 13 guarantees of the state and federal constitutions. See U.S. Const. amend. XIV, § 1; 14 N.M. Const. art. II, § 18. We decline to address these arguments because we conclude 15 that private school students may participate in the textbook loan program. See Trinity 16 Lutheran, 137 S. Ct. at 2024 n.5 (deciding the case on free exercise grounds and 17 declining to reach the equal protection claim raised by the church). 18 III. CONCLUSION 40 1 {53} We hold that the textbook loan program established by the IML does not 2 violate Article IV, Section 31; Article IX, Section 14; or Article XII, Section 3 of the 3 New Mexico Constitution. We reinstate the provisions of the IML that allow private 4 school students to participate in the textbook loan program. 5 {54} IT IS SO ORDERED. 6 ______________________________ 7 BARBARA J. VIGIL, Justice 8 WE CONCUR: 9 ___________________________________ 10 PETRA JIMENEZ MAES, Justice 11 ___________________________________ 12 CHARLES W. DANIELS, Justice 13 JUDITH K. NAKAMURA, Chief Justice, dissenting 14 GARY L. CLINGMAN, Justice, joining in dissent 41 1 NAKAMURA, Chief Justice (dissenting). 2 {55} Moses II correctly concluded that the provision of school books under the IML 3 to students who attend private schools—whether secular or religious—violates the 4 plain language of Article XII, Section 3. Moses II, 2015-NMSC-036, ¶ 2. 5 Understanding what Trinity Lutheran does and does not do makes clear that this 6 Court should not abandon this conclusion. 7 {56} Trinity Lutheran holds that, “[i]f a state awards grants, on religiously neutral 8 criteria, to create safer playground surfaces, it cannot exclude an otherwise eligible 9 playground simply because it is owned by a church. Such discrimination against 10 religion violates the Free Exercise Clause, and awarding the grant would not violate 11 the Establishment Clause.” Douglas Laycock, Churches, Playgrounds, Government 12 Dollars—and Schools?, 131 Harv. L. Rev. 133, 133 (2017); see Trinity Lutheran, 137 13 S. Ct. at 2024. At the heart of the Trinity Lutheran Court’s holding is the following 14 thought: “If the state neutrally supports playground surfaces for religious and secular 15 daycares alike, and for religious daycares of different faiths, it is supporting daycares, 16 or just playgrounds, but not religion. Equal funding gives the religious daycares no 17 advantage; funding only secular daycares would put religious daycares at a 18 disadvantage.” Laycock, supra, at 147. This thought is not a departure from settled 42 1 First Amendment principles. 2 {57} The conclusion in Trinity Lutheran that Missouri cannot disqualify an applicant 3 for a public benefit “solely because of its religious character,” 137 S. Ct. at 2024, 4 advances the “core principles of the Religion Clauses: that government should not 5 penalize any person because of his religion, and that government should be neutral 6 with respect to the people’s religious choices and commitments.” Laycock, supra, 7 at 148. But see Trinity Lutheran, 137 S. Ct. at 2027 (Sotomayor, J., dissenting) (“The 8 Court today profoundly changes th[e] relationship [between church and state] by 9 holding, for the first time, that the Constitution requires the government to provide 10 public funds directly to a church. Its decision slights both our precedents and our 11 history, and its reasoning weakens this country’s longstanding commitment to a 12 separation of church and state beneficial to both.”). This is an adequate summary of 13 what Trinity Lutheran does. We need to understand with equal certainty what Trinity 14 Lutheran does not do. 15 {58} Footnote three of Chief Justice Robert’s opinion for the Court2 points out that 16 Trinity Lutheran “involves express discrimination based on religious identity” and 17 2 Footnote three was joined by four justices (including the Chief Justice), but 18 has unquestionable significance for future cases (like this one) given how the other 19 Justices proposed to resolve Trinity Lutheran. Laycock, supra, at 135-36. 43 1 clarifies that Trinity Lutheran does not “address religious uses of funding or other 2 forms of discrimination.” 137 S. Ct. at 2024 n.3 (emphasis added). In other words, 3 “[f]ootnote three carefully limits the reach of the opinion” and “reserve[s]” the very 4 issue before this Court on remand: whether a very different form of alleged 5 discrimination than that considered in Trinity Lutheran is also an unconstitutional 6 abridgment of religious liberty. Laycock, supra, at 134-35. 7 {59} The “discrimination” we are faced with here, on remand, is “public-private, not 8 religious-secular.” Id. at 167. This difference is critical. Because of this difference, 9 “motive” becomes essential. Id. at 167-68. The question remand to this Court 10 prompts is this: was Article XII, Section 3 “adopted because of a desire to prohibit 11 funding for Catholic education?” Laycock, supra, at 167. “If [Article XII, Section 12 3] was motivated by anti-Catholicism, it should be unconstitutional.” Laycock, 13 supra, at 168. This is because, “[w]here sufficient evidence of motive is available, 14 Trinity Lutheran should extend to cases of antireligious discrimination shrouded in 15 facially neutral provisions.” Laycock, supra, at 169. Careful attention must be paid 16 to the instances of the word “should” in the two preceding sentences. 17 {60} Trinity Lutheran does not resolve the question presented on remand. Laycock, 18 supra, at 134. We can only make educated guesses about how the United States 44 1 Supreme Court will resolve the issues reserved, and we will only know whether those 2 guesses are correct when the Supreme Court takes up the “next round of cases.” Id. 3 at 169. While we eagerly await future guidance, we must nevertheless answer the 4 question before us: whether there is sufficient evidence that the motivations for the 5 enactment of Article XII, Section 3 were discriminatory. I cannot conclude sufficient 6 evidence exists. 7 {61} “In determining if the object of a law is a neutral one under the Free Exercise 8 Clause, we can . . . find guidance in . . . equal protection cases.” Lukumi, 508 U.S. 9 at 540. In the equal protection context, a litigant claiming that a facially neutral 10 provision is unconstitutional because it emanates from discriminatory motives is 11 required to establish that the provision did in fact arise from discriminatory motives. 12 See Hunter, 471 U.S. at 227-28; see also Abbott v. Perez, 138 S. Ct. 2305, 2324 13 (2018) (“Whenever a challenger claims that a state law was enacted with 14 discriminatory intent, the burden of proof lies with the challenger, not the State.”). 15 Only after making such a showing must the proponent of the provision’s 16 constitutionality attempt to rebut the claim. Hunter, 471 U.S. at 227-28. 17 {62} “Proving the motivation behind official action is often a problematic 18 undertaking.” Id. at 228. This is particularly true when the official action under 45 1 review is the drafting of a constitutional provision that occurred a century ago. See 2 id. The problem is only further compounded when the provision under scrutiny is 3 neutral and constitutional on its face. Id. 4 {63} The history the majority recounts suggests that a straight line of anti-Catholic 5 bigotry runs from the motivations underlying the Blaine Amendment to Article XII, 6 Section 3. Maj. Op. ¶¶ 12-17, 43. This history, first explicated in Moses II, purports 7 to establish that anti-Catholic animus prompted the Blaine Amendment, which was 8 in turn incorporated into the Enabling Act (most directly) at Section 8, which was in 9 turn the basis for Article XII, Section 3. Maj. Op. ¶¶ 12-17, 43. Moses II was too 10 quick to conclude that the root of this series of events was, in fact, anti-Catholic 11 bigotry. 12 {64} “Those who characterize the Blaine Amendment as a singular exercise in 13 Catholic bigotry . . . give short shrift to the historical record and the dynamics of the 14 times.” Steven K. Green, The Insignificance of the Blaine Amendment, 2008 B.Y.U. 15 L. Rev. 295, 296 (2008). 16 The Blaine Amendment had as much to do with the partisan climate of 17 the post-Reconstruction era and related concerns about federal power 18 over education as it did with Catholic animus. Included in the mix was 19 a sincere effort to make public education available for children of all 20 faiths and races, while respecting Jeffersonian notions of church-state 46 1 separation. 2 Id. (internal quotation marks and citation omitted). Any attempt at a summary of the 3 many social forces at play in the lead-up to the creation of the Blaine Amendment is 4 beyond the scope of this dissent. See generally id. It suffices to state that there is 5 reason to doubt the first link in the chain of inferences that must be accepted to 6 conclude that Article XII, Section 3 was motivated by anti-Catholic animus (i.e., that 7 anti-Catholic animus was the sole force behind the Blaine Amendment). The next 8 link—that between the Blaine Amendment and the Enabling Act—is equally 9 susceptible to attack. 10 {65} The suggestion that the motives underlying the Blaine Amendment (whatever 11 they were) were shared by the drafters of the Enabling Act is problematic. The 12 enabling act 13 which authorized the statehood of Arizona and New Mexico contained 14 the proviso that both nascent states must have constitutional language 15 forbidding public funding to sectarian schools. Opponents of the Blaine 16 Amendment claim that the same anti-Catholic animus behind the federal 17 Blaine Amendment motivated this mandate to new states in the enabling 18 acts. However, a recent study by historians prepared in an amicus brief 19 to Locke v. Davey found that no evidence of anti-Catholic bigotry lay 20 behind a similar enabling act for Washington State that same year, and 21 the Supreme Court noted in a footnote that the history of the federal 22 Blaine Amendment was not relevant to consideration of Washington’s 23 similar provision. 47 1 Jill Goldenziel, Blaine’s Name in Vain?: State Constitutions, School Choice, and 2 Charitable Choice, 83 Denv. U. L. Rev. 57, 79-80 (2005) (footnotes omitted). The 3 “legal and religious historians and law scholars who” authored the amicus brief in 4 Locke point out that “[m]any state constitutions . . . contain no-funding provisions 5 [like Article XII, Section 3] that have nothing to do with anti-Catholicism or nativist 6 sentiment.” Brief Amicus Curiae of Historians and Law Scholars on Behalf of 7 Petitioners Gary Locke, et al., Locke v. Davey, 540 U.S. 712 (2004) (No. 02-1315), 8 2003 WL 21697729 at 1, 4. They further note that “[t]he no-funding principle, as 9 applied to educational matters, arose independently of and prior to the rise of Catholic 10 parochial schooling and the organized nativist movement of the mid-nineteenth 11 century.” Id. at 2. 12 {66} These authorities are offered not as indisputably correct and definitive; rather, 13 they merely illuminate the complexity of the historical questions before us: What, 14 precisely were the motives behind the Blaine Amendment? How, exactly, did those 15 motives influence the drafters of the Enabling Act? And how, specifically, did these 16 events influence the drafters of Article XII, Section 3? It is because the answers to 17 these difficult questions are uncertain at best and because we must “eschew 18 guesswork” that other interpretive tools must be prioritized. Hunter, 471 U.S. at 228, 48 1 (internal quotation marks and citation omitted). 2 {67} As Moses II observes, the drafters of our state constitution made a significant 3 drafting decision when writing Article XII, Section 3. Moses II, 2015-NMSC-036, 4 ¶ 27. Unlike Section 8 of the Enabling Act which “precludes the use of public funds 5 for the support of sectarian or denominational schools[,]” Article XII, Section 3 6 restricts the use of public funds for “the much broader category of private schools.” 7 Moses II, 2015-NMSC-036, ¶ 27 (emphasis added). Moses II correctly notes that this 8 drafting choice is self-evidently significant: “The members of the Constitutional 9 Convention chose to play it safe—by broadening [Article XII, Section 3] to reach all 10 private schools, they avoided drawing a line between secular and sectarian 11 education.” Id. ¶ 27. In other words, the drafters of Article XII, Section 3 took 12 affirmative measures to decouple the provision from the problematic language in the 13 Enabling Act. Our understanding of the drafter’s motives must incorporate these 14 measures, which strongly suggest that their motives were not discriminatory but the 15 opposite. The majority seems in agreement with this point. 16 {68} The majority ultimately concludes that they cannot “impute an impermissible 17 motive to the constitutional delegation[,]” Maj. Op. ¶ 42, and doubt that it is possible 18 to “ascertain what motivated the delegates to draft Article XII, Section 3.” Maj. Op. 49 1 ¶ 42. They do accept, however, that “the constitutional delegates agreed it was 2 essential to guarantee the civil, religious, and political rights of the native New 3 Mexicans[,]” who were largely Catholic. See Maj. Op. ¶¶ 37, 42. It is difficult to see 4 how the majority’s conclusions and concessions do not end the inquiry in this case 5 and dictate the outcome. 6 {69} “Discriminatory intent is simply not amenable to calibration. It either is a 7 factor that has influenced the legislative choice or it is not.” Pers. Adm’r of Mass. v. 8 Feeney, 442 U.S. 256, 277 (1979). It “implies more than intent as volition or intent 9 as awareness of consequences.” Id. “It implies that the decisionmaker . . . selected 10 or reaffirmed a particular course of action at least in part because of, not merely in 11 spite of, its adverse effects upon an identifiable group.” Id. (internal quotation marks 12 omitted). 13 {70} Respondents have not established that Article XII, Section 3 was the product 14 of impermissible, discriminatory motives, and the majority appears to recognize this. 15 All that has been established is that Article XII, Section 3 is guilty by association. 16 See Maj. Op. ¶ 43 (“Even though it appears that the people of New Mexico intended 17 for Article XII, Section 3 to be a religiously neutral provision, the history of the 18 federal Blaine amendment and the New Mexico Enabling Act lead us to conclude that 50 1 anti-Catholic sentiment tainted its adoption.” (emphasis added)). But this is 2 insufficient and does not amount to discriminatory intent or purpose as the United 3 States Supreme Court has defined this concept. 4 {71} Moreover, the claim of guilt by association here is doubtful as the history 5 associated with the Blaine Amendment and Enabling Act are unclear at best. We are 6 left wondering: With what, exactly, is Article XII, Section 3 guilty of associating? 7 More critically, “[p]ast discrimination cannot, in the manner of original sin, condemn 8 governmental action that is not itself unlawful.” See Abbott v. Perez, 138 S. Ct. 2305, 9 2324 (2018) (internal quotation marks and citation omitted). The drafters of our 10 constitution took affirmative measures to avoid becoming ensnared by the nativist 11 discrimination—to whatever extent it existed—in the Blaine Amendment and 12 Enabling Act. We should not ignore these efforts and condemn the drafters to be 13 forever and inescapably associated with a viewpoint the majority acknowledges the 14 drafters of Article XII, Section 3 did not embrace. 15 {72} Moses II’s conclusion that the plain language of Article XII, Section 3 prohibits 16 the state from loaning textbooks to children enrolled in private schools does not run 17 afoul of the principles articulated in Trinity Lutheran. There is insufficient evidence 18 Article XII, Section 3 stems from discriminatory motives. Respondent and 51 1 Intervenor’s renewed free-exercise claims fail. The majority disagrees and embraces 2 a construction of Article XII, Section 3 that is inconsistent with the provision’s plain 3 language and permits the state to loan secular textbooks to private school students, 4 including religious students. See Maj. Op. ¶ 46. They do so to “avoid constitutional 5 concerns,” but these are concerns that do not exist. Id. 6 {73} Because the conclusions in Moses II survive Trinity Lutheran and because the 7 IML violates Article XII, Section 3, there is no need to address whether the IML also 8 violates Article IV, Section 31 or Article IX, Section 14 of our state constitution. See 9 Baca v. N.M. Dep’t of Pub. Safety, 2002-NMSC-017, ¶ 12, 132 N.M. 282, 47 P.3d 10 441 (noting that courts exercise judicial restraint by deciding cases on the narrowest 11 possible grounds and avoid reaching unnecessary constitutional issues). 12 {74} The majority does not address Respondent and Intervenor’s arguments that 13 interpreting Article XII, Section 3 to preclude the provision of books to private 14 schools gives rise to a violation of our state constitution’s equal protection clause. 15 The majority need not do so given their resolution of this matter. See Maj. Op. ¶ 52. 16 Because I resolve this case differently, I address these claims. 17 {75} The argument presented is that providing books to public school students but 18 not to private school students treats two classes of similarly-situated students 52 1 differently. Public school students will receive books, private school students will 2 not. This disparate treatment is a violation of equal protection, or so it is argued. 3 {76} “The New Mexico Constitution provides that no person shall be denied equal 4 protection of the laws.” Wagner v. AGW Consultants, 2005-NMSC-016, ¶ 21, 137 5 N.M. 734, 114 P.3d 1050 (citing N.M. Const. art. II, § 18). “Like its federal 6 equivalent, this is essentially a mandate that similarly situated individuals be treated 7 alike, absent a sufficient reason to justify the disparate treatment.” Id. “What level 8 of scrutiny we use depends on the nature and importance of the individual interests 9 asserted and the classifications created by the statute.” Id. ¶ 12. “Rational basis 10 review applies to general social and economic legislation that does not affect a 11 fundamental or important constitutional right or a suspect or sensitive class.” Breen 12 v. Carlsbad Mun. Sch., 2005-NMSC-028, ¶ 11, 138 N.M. 331, 120 P.3d 413. “Under 13 rational basis review, the challenger must demonstrate that the legislation is not 14 rationally related to a legitimate government purpose.” Rodriguez v. Brand W. Dairy, 15 2016-NMSC-029, ¶ 23, 378 P.3d 13. It is conceded that rational basis review applies 16 to the equal-protection argument presented. 17 {77} The decision by the drafters of our state constitution that state largesse be 18 directed to the public schools alone, and not to private schools, is rationally supported 53 1 by the legitimate principle that doing so ensures that the public schools of our state 2 are maximally financed, a circumstance necessary to ensure that “[a] uniform system 3 of free public schools sufficient for the education of, and open to, all the children of 4 school age in the state shall be established and maintained.” N.M. Const. art. XII, § 5 1. “It has never been held that if private schools are not given some share of public 6 funds allocated for education that such schools are isolated into a classification 7 violative of the Equal Protection Clause.” Norwood v. Harrison, 413 U.S. 455, 462 8 (1973). 9 {78} Trinity Lutheran does not require us to abandon the conclusion reached in 10 Moses II that Article XII, Section 3 precludes the provision of school books to private 11 schools under the IML. The state-constitution, equal-protection claims advanced by 12 Respondent fails. 13 {79} Accordingly, I respectfully dissent. 14 ____________________________________ 15 JUDITH K. NAKAMURA, Chief Justice 16 I CONCUR: 54 1 ___________________________________ 2 GARY L. CLINGMAN, Justice 55

01-03-2023

12-13-2018

https://www.courtlistener.com/api/rest/v3/opinions/4539900/

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, No. 79418-3-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION BENJAMIN MICHAEL DUSCHENE, Appellant. CHUN, J. — After a stipulated bench trial, the trial court found Benjamin DuSchene guilty of three counts of first degree child molestation. The trial court denied DuSchene’s request for a Special Sex Offender Sentencing Alternative (SSOSA) and imposed an indeterminate sentence of 98 months. DuSchene appeals, claiming the trial court erred by denying a SSOSA, imposing various conditions of community custody, and imposing an interest accrual provision on his Judgment and Sentence. We affirm, but remand to strike the interest accrual provision. I. BACKGROUND The State charged DuSchene with two counts of first degree child molestation and one count of first degree rape of a child. The State amended the information to add three counts of first degree child molestation. DuSchene agreed to a stipulated bench trial on just three child molestation charges and, in exchange, the State agreed to dismiss two counts of child molestation and the Citations and pin cites are based on the Westlaw online version of the cited material. No. 79418-3-I/2 rape charge. The agreement benefitted the minor victims and DuSchene: the victims would not have to testify and risk being re-traumatized and DuSchene, because of the dropped charges, would be eligible to request a SSOSA. If DuSchene received a SSOSA, the court would impose a suspended sentence, a maximum 12-month term, and a term of community custody equal to the length of the suspended sentence, with a treatment period of up to five years. RCW 9.94A.670(5). After the agreement to proceed to a stipulated bench trial and before trial and sentencing, DuSchene’s counsel, David Gehrke, retired. In the same time period, the minor victims’ parents provided impact statements as a part of a presentencing report. Their father stated that he did not want his daughters to have to testify, “so if it means he gets the SSOSA then so be it. If not for that, I would want him to get the maximum time in prison.” Their mother stated: “I want him to do time—my daughters were terrified to testify, so we were okay with the SSOSA. But he deserves the maximum and I would like to see him get that.” She also stated: “[t]he best closure that we can get is to know that this will never happen to another family. Feel significant jail time is needed in his case.” The minor victims provided impact statements directly to the court. One of the victims stated that she wanted him “to go to jail for a long time so he doesn’t hurt any other [families].” Another stated that she would “like him to get the maximum time in jail as you think is the best for what he did . . . to me.” 2 No. 79418-3-I/3 The trial court found DuSchene guilty of three counts of child molestation. The court sentenced him the same day. The State requested a standard-range sentence of 120 months. DuSchene requested a SSOSA. Mike Kelly represented DuSchene. Before deciding whether to grant the SSOSA, the sentencing court expressed confusion, based on the impact statements, as to whether the minor victims and their parents opposed the SSOSA. Since, after entering into the stipulated bench trial, there was no possibility that the victims would testify, the court expressed uncertainty as to why the parents would thereafter state that they would not oppose the SSOSA so long as the minor victims would not have to testify. The sentencing court wondered whether the victims understood the process and asked the State to clarify their responses. The State responded: The parents . . . were mostly concerned with the fact that, A, they— all of them feel that Mr. [DuSchene] needs treatment. I don’t think that’s any sort of question there. They were mostly concerned of not having to put their children through the trauma of testifying, and thought that if he were to receive a SSOSA they would be okay with that, not having to re-traumatize their children and that he did need treatment. But certainly given what happened to their kids and the victims themselves want him to be held accountable and to do, you know, some time in custody certainly, or as much time in custody as the Court is willing to give him in order to take responsibility for these things given the impact that it’s had on the children. So I would say that as far as the Court is taking into consideration whether the victims are opposed to a SSOSA, I do not believe that they are opposed to a SSOSA, which is why we proceeded in the first place. But I think that they do definitely want him held accountable. The sentencing court responded that the question was not whether the victims opposed the SSOSA, but whether they were in favor of it. The State responded: 3 No. 79418-3-I/4 “I don’t think that they are in favor of it. I think their main reasoning for having him do the SSOSA was to not have the girls have to testify and re-traumatize them, and I think that is clear from at least [the mother’s] statement.” The court asked Kelly whether he had anything to add. Kelly responded: No. I guess what I would say, and as Your Honor is aware, I wasn’t there, Mr. Gehrke was still practicing at that time, but what I would say is I believe to me it seems clear, that that is the reason for the stipulated facts trial. In other words, the concerns Your Honor just outlined, sort of, was the parties came to that agreement [for a stipulated bench trial] because, in part, these victims said go—let him go ahead with the SSOSA if we don’t have this trial, this actual jury trial where we testify. The court responded: “I don’t know that I interpret it that way. That’s why I’m struggling with it.” The trial court declined DuSchene’s request for a SSOSA and sentenced him within the standard range to 98 months, with his ultimate term to be determined by the Indeterminate Sentencing Review Board. In doing so, the sentencing court stated: First of all, it says that the Court’s supposed to give great weight to the victim’s opinion, and the opinion, as I understand it, essentially, is that the children themselves who wrote me the statements and the parents are opposed to this alternative. If it were entered into solely for purposes of avoiding them having to testify at trial, then they reluctantly were in agreement with it. Based on the way that the case was resolved, there was no chance that the children were going to have to testify once there was a stipulated bench trial. The State did not indicate they were in agreement with the request, but they indicated they would not be opposed to the defense making that request, and ultimately, that was what was bargained for between the parties. The trial court also imposed various terms of community custody and an interest accrual provision on his Judgment and Sentence. DuSchene appeals. 4 No. 79418-3-I/5 II. ANALYSIS A. SSOSA On multiple grounds, DuSchene argues that the trial court erred in denying his request for a SSOSA. First, he claims that it failed to consider all the sentencing factors required by RCW 9.94A.670(4). Next, he argues that whether the victims favored a SSOSA was a disputed fact, so the court either should have disregarded their impact statements or ordered an evidentiary hearing to determine their opinions. The State argues that the sentencing court considered all the necessary factors, and that there were no disputed facts, so the trial court did not err in denying a SSOSA. We agree with the State. We review for abuse of discretion a trial court’s decision on a request for a SSOSA. State v. Osman, 157 Wn.2d 474, 482, 139 P.3d 334 (2006). “A court abuses its discretion if it categorically refuses to impose a particular sentence or if it denies a sentencing request on an impermissible basis.” Osman, 157 Wn.2d at 482. A defendant generally may not appeal a standard range sentence. Osman, 157 Wn.2d at 481; RCW 9.94A.585(1). But they “may appeal a standard range sentence if the sentencing court failed to comply with procedural requirements of the [Sentencing Reform Act (SRA)] or constitutional requirements.” Osman, 157 Wn.2d at 481–82. Here, DuSchene challenges his standard range sentence, but argues that the trial court violated procedural requirements of the SRA by failing to consider factors under RCW 9.94A.670(4) and failing to order an evidentiary hearing as required by RCW 9.94A.530(2). 5 No. 79418-3-I/6 Consequently, RCW 9.94A.585(1) does not prohibit consideration of these issues.1 1. RCW 9.94A.670(4) factors DuSchene claims the trial court failed to consider two of the six factors that, under RCW 9.94A.670(4), it must consider in determining whether to grant a SSOSA. Specifically, DuSchene argues the trial court did not consider whether the alternative sentence was too lenient or whether he had victims in addition to the victims of the offenses involved. We disagree. Before deciding whether to grant a defendant’s request for a SSOSA, the sentencing court must consider the following factors: [W]hether the offender and the community will benefit from use of this alternative, consider whether the alternative is too lenient in light of the extent and circumstances of the offense, consider whether the offender has victims in addition to the victim of the offense, consider whether the offender is amenable to treatment, consider the risk the offender would present to the community, to the victim, or to persons of similar age and circumstances as the victim, and consider the victim’s opinion whether the offender should receive a treatment disposition under this section. RCW 9.94A.670(4). In opposing DuSchene’s request for a SSOSA, the State indicated: However, only having potentially 12 months in custody and with treatment, I do look at the criterion that states whether it’s too lenient 1 DuSchene also claims, in support of his argument that the sentencing court erroneously denied his SSOSA request, that the State violated the advocate-witness rule by “testifying” as to its impression of the victim’s opinions of the SSOSA request. But this claim raises neither procedural issues under the SRA nor constitutional issues. Also, he did not object on these grounds at the trial court, and he provides no legal authority suggesting we must consider it for the first time on appeal. RAP 2.5(a). Thus, we decline to consider it. In any event, if the State was merely interpreting the uncontested contents of the victims’ impact statements, the rule does not appear to apply. RPC 3.7(a)(1) (“A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness unless . . . the testimony relates to an uncontested issue.”). 6 No. 79418-3-I/7 in light of the circumstances and the facts and the crimes alleged, and in this case, it’s not just one victim, there’s three victims and multiple times that each of these victims were victimized. The trial court, after indicating that it would deny a SSOSA on the ground that DuSchene presented too much danger to the community, stated: I will indicate to you, just so it’s clear, that I have over the objections of victims provided people with SSOSAs that the victims were opposed to, but I don’t find this is a proper case for that. It’s true, you don’t have any prior history, but you engaged in these behaviors with these children. There was three victims, not one. And as one basically changed their behavior patterns, instead of realizing and taking more action to prohibit your behaviors or to get assistance related to it, you just moved on to the next child. And at least from what I reviewed, this family’s devastated and has been devastated. In the context of the State’s assertion that a SSOSA would be too lenient because DuSchene had three victims, the sentencing court’s recognition of the same fact shows it considered whether a SSOSA would be too lenient. The court’s observation that DuSchene moved from victim to victim and the impact on the victims’ family also demonstrates its consideration of whether a SOSSA would be too lenient. And by stating that DuSchene had no prior criminal history, the trial court recognized that there were no other victims in addition to the victims of this offense. The sentencing court considered the factors in question, so DuSchene’s claim on this ground fails. 2. Disputed facts DuSchene claims that whether the victims favored a SSOSA was a disputed fact at sentencing. Thus, he argues, the trial court should have either disregarded their impact statements or ordered a hearing to determine their opinions. We disagree. 7 No. 79418-3-I/8 In determining any sentence, RCW 9.94A.530(2) prohibits a court from relying on information not admitted, acknowledged, or proved at trial or at the time of sentencing. If the defendant disputes any material facts, the sentencing court must either not consider the fact or grant an evidentiary hearing on the point. RCW 9.94A.530(2). “In order to dispute any information presented at the sentencing hearing, the defendant must make a specific, timely challenge. The defendant need not move for an evidentiary hearing; however, it is the [sentencing] court’s responsibility under RCW 9.94A.530(2) to hold an evidentiary hearing if it wants to consider disputed facts.” State v. Crockett, 118 Wn. App. 853, 858, 78 P.3d 658 (2003) (internal citation omitted) (emphasis added). In deciding on a defendant’s request for a SSOSA, a sentencing court must give “great weight” to the victims’ opinions of the request. RCW 9.94A.670(4). Unless the parent or guardian is also the perpetrator of the offense, the parent or guardian of a minor victim is also a victim. RCW 9.94A.670(1)(c). At sentencing, the State reasonably interpreted the parent victims’ statements to mean that they did not favor a SSOSA as the entry into a stipulated bench trial eliminated the possibility of the minor victims testifying. In response, DuSchene’s counsel did not raise any dispute with respect to the contents of any of the victims’ statements. Nor did he claim that there was any other source of information regarding the victims’ opinions. Instead, he initially said, “I wasn’t there” at the time of the agreement for a stipulated bench trial. He 8 No. 79418-3-I/9 did not specifically challenge the State’s interpretation of the parents’ statements. He did say, “[T]he parties came to that agreement [for a stipulated trial] because, in part, these victims said go – let him go ahead with the SSOSA if we don’t have this trial, this actual jury trial where we testify.” If, in saying this, counsel meant that the parents favored a SSOSA, there was no reasonable basis for the interpretation. The minor victims’ statements say nothing about a SSOSA. And the parent victims’ statements indicated that they favored the stipulated trial, even if it meant DuSchene could request a SSOSA, as it avoided the need for the children to testify—they in no way indicated that they wanted a stipulated trial because it meant DuSchene would receive a SSOSA. In any event, because, as required by Crockett, Kelly did not specifically challenge the State’s interpretation of the victim impact statements, there was no dispute and the sentencing court did not err. In light of the foregoing, we conclude that the court did not abuse its discretion in denying the SSOSA. B. Community Custody Conditions DuSchene argues that we should remand to strike various community custody conditions from his Judgment and Sentence because they violate his statutory and constitutional rights. The State disagrees, but in any event argues that DuSchene cannot bring these challenges for the first time on appeal, because he invited any such error. We affirm his community custody conditions. The State correctly notes that where a defendant agrees, without objection, to community custody conditions, they cannot argue for the first time 9 No. 79418-3-I/10 on appeal that the conditions are not crime related, as they have invited any resulting error. See State v. Casimiro, 8 Wn. App. 2d 245, 248–49, 438 P.3d 137 (2019); RAP 2.5(a)(3); see also State v. Peters, 10 Wn. App. 2d 574, 591, 455 P.3d 141 (2019) (declining to consider an argument that a sentencing condition is not crime related where the defendant raised the issue for the first time on appeal). Here, DuSchene agreed to the community custody conditions without objection. DuSchene argues for the first time on appeal that conditions 10 and 15 are not crime related; we do not consider these claims, because he invited any such error. The State also argues that we need not consider DuSchene’s constitutional challenges to his community custody conditions. But we may consider challenges to sentencing conditions that are final, primarily legal, and do not require further factual development. State v. Cates, 183 Wn.2d 531, 534, 354 P.3d 832 (2015). Courts will regularly consider vagueness challenges to community custody conditions, even for the first time on appeal. Casimiro, 8 Wn. App. 2d at 250. We review community custody conditions for an abuse of discretion, and reverse conditions “only if they are manifestly unreasonable.” Peters, 10 Wn. App. 2d at 583. “A trial court necessarily abuses its discretion if it imposes an unconstitutional community custody condition, and we review constitutional questions de novo.” State v. Wallmuller, 194 Wn.2d 234, 238, 449 P.3d 619 (2019). 10 No. 79418-3-I/11 1. Condition 6 In his Statement of Additional Grounds (SAG), DuSchene argues that condition 6, which requires him to “[p]articipate in polygraph examinations as directed by the supervising Community Corrections Officer, to ensure conditions of community custody,” is unconstitutionally vague and violates his First and Fifth Amendment rights under the United States Constitution. We disagree. DuSchene argues this condition is unconstitutionally vague, because polygraph testing may be used only to monitor compliance with other community custody conditions, “and not used as a fishing expedition to discover evidence of other crimes past or present.” Thus, he argues we should strike the condition or modify it to only allow polygraph testing to ensure compliance with community custody conditions. But the condition already contains such a limitation. Thus, we need not alter it. DuSchene argues that this condition violates his right to free speech under the First Amendment, and his right not to self-incriminate under the Fifth Amendment. He cites no legal authority to support this argument. Thus, we decline to consider it. See Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (arguments not supported by legal authority need not be considered). 2. Condition 7 In his SAG, DuSchene argues the sentencing court erred by imposing condition 7, which requires him to “[s]ubmit to plethysmograph testing, as directed by a certified sexual deviancy treatment provider,” because he is not a 11 No. 79418-3-I/12 sexually violent predator and because it violates his right to privacy and Eighth Amendment rights under the United States Constitution. We disagree. Courts need not conclude a defendant is a sexually violent predator to order plethysmograph testing. See State v. Johnson, 184 Wn. App. 777, 780, 340 P.3d 230 (2014) (holding that a court may order plethysmograph testing if it also orders a crime-related treatment regimen for sexual deviancy). DuSchene’s challenge on this ground fails. DuSchene cites no legal authority to support his Eight Amendment argument, so we decline to consider it. See Cowiche, 118 Wn.2d at 809. 3. Condition 10 In his SAG, DuSchene argues the sentencing court imposed condition 10, which requires him to consent to Department of Corrections (DOC) home visits and allow for visual inspections of his residence,2 in violation of his Fourth Amendment rights under the United States Constitution. He also argues the condition is not crime related. As discussed above, we decline to consider his assertion that the condition is not crime related. We also conclude his constitutional challenge is not yet ripe for review, since it requires further factual development. 2 Condition 10 states, in full: “You must consent to DOC home visits to monitor your compliance with supervision. Home visits include access for purposes of visual inspection of all areas of the residence in which you live or have exclusive or joint control and/or access.” 12 No. 79418-3-I/13 In Cates, our Supreme Court declined to consider a preenforcement challenge to a substantially similar community custody condition3 on the grounds that the challenge was not yet ripe. 183 Wn.2d at 536. The court reasoned that it could not consider the constitutionality of the condition without further factual development. As in Cates, DuSchene’s challenge to this condition will not become ripe until he is released from confinement and the State attempts to enforce the condition by requesting and conducting a home visit. 183 Wn.2d at 535. DuSchene makes no argument distinguishing Cates. Thus, we decline to consider his challenge. 4. Condition 14 DuSchene argues that condition 14, which prohibits him from entering areas where children’s activities regularly occur or are occurring,4 is unconstitutionally vague in violation of due process and infringes on his First Amendment to free exercise of religion under the United States Constitution. We disagree. 3 The community custody condition in Cates stated: “You must consent to [Department of Corrections] home visits to monitor your compliance with supervision. Home visits include access for the purposes of visual inspection of all areas of the residence in which you live or have exclusive/joint control/access, to also include computers which you have access to.” 183 Wn.2d at 533. 4 Condition 14 states, in full: Stay out of areas where children’s activities regularly occur or are occurring. This includes, but is not limited to: parks used for youth activities, schools, daycare facilities, playgrounds, wading pools, swimming pools being used for youth activities, play areas (indoor or outdoor), sports fields being used for youth sports, arcades, church services, restaurants, and any specific location identified in advance by [the Department of Custody] or [a Community Custody Officer]. 13 No. 79418-3-I/14 a. Vagueness Specifically, DuSchene argues that the phrase “areas where children’s activities regularly occur” is unconstitutionally vague, because it provides no standards for determining the frequency or regularity with which the activities must occur for him to avoid a location. He also argues that the illustrative list includes several areas that are not used solely for children’s activities, such as swimming pools, sports fields, arcades, church services, and restaurants. Finally, he argues that the condition’s grant of authority to the DOC or a Community Custody Officer (CCO) to determine whether a specific location is prohibited invites arbitrary enforcement in violation of due process. A community custody condition is unconstitutionally vague, under due process principles of the Fourteenth Amendment to the United States Constitution and article I, section 3 of the Washington Constitution, if either a reasonable person would not understand what conduct the condition prohibits or if it lacks ascertainable standards that prevent arbitrary enforcement. Casimiro, 8 Wn. App. 2d at 250 (citing State v. Bahl, 164 Wn.2d 739, 752–53, 193 P.3d 678 (2008)); see also Wallmuller, 194 Wn.2d at 238. Our Supreme Court recently decided that a similar community custody decision was not unconstitutionally vague in Wallmuller. 194 Wn.2d at 245. The condition in Wallmuller stated: “The defendant shall not loiter in nor frequent places where children congregate such as parks, video arcades, campgrounds, and shopping malls.” 194 Wn.2d at 237. The Court reasoned that “‘commonsense’ restrictions, including those that use nonexclusive lists to 14 No. 79418-3-I/15 elucidate general phrases like ‘where children congregate,’” provide fair notice of prohibited conduct. Wallmuller, 194 Wn.2d at 242–43. Addressing DuSchene’s first argument, much like the condition in Wallmuller, condition 14 uses a nonexclusive list to illustrate the general phrase “areas where children’s activities regularly occur or are occurring.” “Areas where children’s activities regularly occur” is no less precise than “places where children congregate.” The language in condition 14 is specific enough that a person of ordinary intelligence can understand the scope of its prohibition, so it is not unconstitutionally vague. DuSchene cites no legal authority in support of his additional argument that such illustrative lists may only include areas exclusively used for children’s activities. We need not consider arguments not supported by legal authority. See Cowiche, 118 Wn.2d at 809. Furthermore, the condition upheld by our Supreme Court in Wallmuller also included areas not exclusively used for children’s activities. 194 Wn.2d at 236. This argument fails. Finally, DuSchene argues that the condition’s grant of discretion to DOC and the CCO to add locations to the illustrative list invites arbitrary enforcement. He analogizes to State v. Irwin, where we remanded to strike a community custody condition that allowed the supervising CCO to define the areas where minor children might congregate and did not provide an illustrative list. 191 Wn. App. 644, 649, 655, 364 P.3d 830 (2015). But unlike in Irwin, here, the DOC or a CCO may only clarify the definition of condition 14 in advance, eliminating the risk that DuSchene will inadvertently violate the condition. The condition’s 15 No. 79418-3-I/16 illustrative list also limits the DOC and CCO’s discretion to designate locations to avoid. Thus, the condition does not invite arbitrary enforcement in violation of due process. b. Free exercise of religion DuSchene also argues that, because this condition prohibits him from attending church services, it violates his First Amendment right to free exercise of religion. Because DuSchene has not established that the condition has a coercive effect, his claim fails. The Washington and United States Constitutions protect the free exercise of religion. U.S. CONST. Amend. I; CONST. art. I, § 11. A burden on the exercise of religion, such as a community custody condition prohibiting the defendant from attending church services, must withstand strict scrutiny. State v. Balzer, 91 Wn. App. 44, 53, 954 P.2d 931 (1998). “Under this standard, the complaining party must first prove the government action has a coercive effect on [their] practice of religion.” Balzer, 91 Wn. App. at 53. To show coercive effect, the complaining party must first show that they sincerely hold their religious convictions, and that the convictions are central to the practice of their religion. Balzer, 91 Wn. App. at 54. Next, they must show the challenged enactment burdens their free exercise of religion. Balzer, 91 Wn. App. at 54. Once the complaining party establishes a coercive effect, the burden of proof shifts to the government to show the restrictions serve a compelling state interest and are the least restrictive means for achieving that interest. Balzer, 91 Wn. App. at 53–54. 16 No. 79418-3-I/17 The record shows that DuSchene has regularly attended church in the past, and that he considers himself a Christian. But he does not argue that he sincerely holds his religious convictions, that those convictions are central to the practice of his religion, or that the challenged enactment burdens the free exercise of his religion. Thus, he has not established that the condition has a coercive effect, and his challenge on this ground fails. 5. Condition 15 DuSchene argues condition 15, which concerns dating and sexual contact,5 violates his constitutional rights. He also argues the condition is not crime related. As addressed above, we decline to consider his claim that the condition is not crime related and disagree that the condition violates his constitutional rights. As to his constitutional claim, DuSchene argues first that condition 15’s requirement that he disclose his sex offender status prior to any sexual contact violates his First Amendment rights by compelling speech. The First Amendment of the United States Constitution protects “both the right to speak freely and the right to refrain from speaking at all.” State v. K.H.-H., 185 Wn.2d 745, 748, 374 P.3d 1141 (2016) (citing Wooley v. Maynard, 430 U.S. 705, 714, 97 S. Ct. 1428, 51 L. Ed. 2d 752 (1977)). Community custody conditions that restrict free speech 5 Condition 15 states, in full: Do not date women nor form relationships with families who have minor children, as directed by the supervising Community Corrections Officer. Disclose sex offender status prior to any sexual contact. Sexual contact in a relationship is prohibited until the treatment provider/Community Corrections Officer approves of such. 17 No. 79418-3-I/18 rights must be reasonably necessary and sensitively imposed. Bahl, 164 Wn.2d at 757. DuSchene gained access to his minor victims via his wife. A future partner could, like DuSchene’s wife, have access to young children, and disclosing his sex offender status protects those children. In light of the compelling need to prevent harm to these children, the sentencing court sensitively imposed a reasonably necessary disclosure requirement. See In re Pers. Restraint of Waggy, 111 Wn. App. 511, 517, 45 P.3d 1103 (2002) (“[P]reventing harm to minor children by a convicted sex offender is a compelling state interest that justifies limitations on the offender’s freedoms”). This claim fails. In a second constitutional claim, DuSchene argues that condition 15’s requirement that he obtain prior approval from his CCO before dating women, forming relationships with families with children, or engaging in sexual contact in a relationship infringes on his due process right to privacy as well as his First Amendment right to free association. In Peters, Division III of this court rejected a similar claim, holding that the “delegation of authority to a CCO to approve dating relationships is not manifest constitutional error nor is it illegal or erroneous as a matter of law.” 10 Wn. App. 2d at 591. We adhere to Peters and reject DuSchene’s claim. C. Legal Financial Obligations DuSchene argues the trial court erred in including an interest accrual provision for the legal financial obligations in his Judgment and Sentence. The State concedes error on this issue. Interest cannot accrue on nonrestitution 18 No. 79418-3-I/19 portions of legal financial obligations. State v. Ramirez, 191 Wn.2d 732, 747, 426 P.3d 714 (2018). We remand to strike the interest accrual provision from DuSchene’s Judgment and Sentence, but affirm his sentence and the community custody conditions. WE CONCUR: 19

01-03-2023

06-08-2020

https://www.courtlistener.com/api/rest/v3/opinions/3222024/

The plaintiff in the court below is a bailiff in the circuit court of Jefferson county, and sues to recover unpaid balance of salary claimed to be due under Gen. Acts 1927, p. 714, approved September 2, 1927. The sole and controlling question involved in this appeal is the validity of the act of the Legislature, supra, upon which this claim is based. Being divided in our opinion on the question, this court submitted to the Supreme Court the following inquiry: "To The Supreme Court, Honorable John C. Anderson, Chief Justice and Associate Justices: Greetings: "Under the provisions of the Statute, Code 1923, par. 7322, the following question is submitted to the Supreme Court for determination: Is the act of the Legislature approved September 2, 1927 (Gen. Acts 1927, p. 714) violative of section 106 of the Constitution of 1901? "The caption to the act is as follows: 'An Act to provide for the appointment of bailiffs in all circuit courts in all counties of the State of Alabama, having a population of 200,000 or more, according to the last Federal census, and to fix the compensation of such bailiffs, and to provide for the payment of such compensation.' There was no advertisement of this act as provided by the Constitution for the passage of a local act. "A cause dependent upon the constitutionality of the above act, solely, is now pending in this court. "For your information we are transmitting herewith briefs filed both for the appellant and the appellee." In response to the foregoing the Supreme Court made answer holding that the act in question is a local act and is void as being in conflict with section 106 of the Constitution of 1901. In this decision ANDERSON, C. J., and BOULDIN, BROWN, FOSTER, and KNIGHT, JJ., concur, while GARDNER and THOMAS, JJ., dissent. For a full discussion of the question, reference is here made to Jefferson County v. Busby, 226 Ala. 293, 148 So. 411, by which this court is bound, and a further discussion would be superfluous. It follows that the judgment is reversed, and a judgment will here be rendered for the defendant. Reversed and rendered.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/996373/

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 98-6289 WAYNE ANTHONY RICHARDSON, Plaintiff - Appellant, versus RICHARD LANHAM, SR., Commissioner; RONALD MOATS, Warden; JOSEPH P. SACCHET, Warden; T. TUCKER, Lieutenant, Defendants - Appellees. Appeal from the United States District Court for the District of Maryland, at Baltimore. Catherine C. Blake, District Judge. (CA- 97-2261-CCB) Submitted: September 10, 1998 Decided: September 24, 1998 Before MURNAGHAN, MICHAEL, and MOTZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Wayne Anthony Richardson, Appellant Pro Se. Glenn William Bell, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Wayne Anthony Richardson appeals the district court’s order denying relief on his 42 U.S.C. § 1983 (1994) complaint. We have reviewed the record and the district court’s opinion and find no reversible error. Accordingly, we affirm on the reasoning of the district court. See Richardson v. Lanham, No. CA-97-2261-CCB (D. Md. Jan. 29, 1998). We dispense with oral argument because the facts and legal contentions are adequately presented in the mate- rials before the court and argument would not aid the decisional process. AFFIRMED 2

01-03-2023

07-04-2013

https://www.courtlistener.com/api/rest/v3/opinions/3235573/

In this case the verdict was for the defendant, and the trial court, upon motion of the plaintiff, set the same aside the motion among other grounds stated that the verdict was "contrary to the great preponderance of the evidence." The rule as declared in the case of Cobb v. Malone, 92 Ala. 630,9 So. 738, and often followed, is to the effect that when the trial judge sees and hears the witnesses and refuses a new trial upon the ground that the verdict is contrary to the great weight or preponderance of the evidence, this court will not disturb the ruling of the trial court unless the evidence plainly and palpably opposed the verdict. On the other hand, when the trial court grants such a motion, its action in doing so will not be disturbed unless the evidence plainly and palpably, that is, the great weight of the evidence, supported the verdict. Sherrer v. Enterprise Banking Co., 160 Ala. 329,49 So. 779, and cases there cited. We are not prepared to say that the great weight of the evidence in the instant case was so favorable to the verdict as to put the trial court in error for granting the new trial and the judgment of the circuit court is affirmed. Affirmed. SAYRE, GARDNER, and MILLER, JJ., concur.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/1028608/

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-8165 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARK JAMES KONSAVICH, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Harrisonburg. Glen E. Conrad, District Judge. (5:05-cr-00019-gec-1) Submitted: April 9, 2009 Decided: April 21, 2009 Before TRAXLER, KING, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. Mark James Konsavich, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Mark James Konsavich appeals the district court’s order denying his Fed. R. Crim. P. 33 motion for a new trial. We have reviewed the record and find the district court did not abuse its discretion in denying the motion. United States v. Smith, 451 F.3d 209, 216 (4th Cir. 2006) (stating standard of review). In order to warrant a new trial based on newly discovered evidence, a defendant must show that: (1) the evidence is newly discovered; (2) the defendant used due diligence; (3) the evidence is not merely cumulative or impeaching; (4) the evidence is material; and (5) the evidence would probably result in an acquittal at a new trial. United States v. Lofton, 233 F.3d 313 (4th Cir. 2000). Unless the defendant demonstrates all five of these factors, the motion should be denied. United States v. Chavis, 880 F.2d 788, 793 (4th Cir. 1989). Konsavich failed to show the newly discovered evidence would probably result in an acquittal at a new trial. Accordingly, we affirm the district court’s order. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 2

01-03-2023

07-05-2013

https://www.courtlistener.com/api/rest/v3/opinions/2882832/

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-06-00041-CV ______________________________ IN THE MATTER OF THE MARRIAGE OF BENITA SUE WOODS AND SAMMY EARL WOODS AND IN THE INTEREST OF SAMANTHA JUSTINE WOODS, ANDRAE MICHAEL WOODS, STACY DEON WOODS AND TRACY DAWN WOODS, CHILDREN                                                On Appeal from the 6th Judicial District Court Red River County, Texas Trial Court No. CV00711                                                   Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION             Sammy Earl Woods attempts to appeal the trial court's granting of a final decree of divorce signed August 8, 2005. His notice of appeal was filed April 6, 2006. We received the clerk's record May 4, 2006. The issue before us is whether Woods timely filed his notice of appeal. We conclude that he did not, and dismiss the attempted appeal for want of jurisdiction.             A timely notice of appeal is necessary to invoke this Court's jurisdiction. Rule 26.1 of the Texas Rules of Appellate Procedure prescribes the time period in which a notice of appeal must be filed in order to perfect appeal in a civil case. A notice of appeal is timely if filed within thirty days after the date the judgment is signed, or within ninety days after the judgment is signed if a document extending the time to file the notice of appeal has been timely filed. Tex. R. App. P. 26.1(a). Woods has filed pro se a "PETITION FOR FINAL DECREE OF DIVORCE BE VACATED IN THE MARRIAGE OF BENITA SUE WOODS & SAMMY EARL WOODS," which we deem to be a motion for new trial. Therefore, the last date Woods could timely file his notice of appeal was November 7, 2005, ninety days after the day the divorce decree was signed. See Tex. R. App. P. 26.1(a)(1).             Woods has failed to perfect his appeal. Accordingly, we dismiss the appeal for want of jurisdiction.                                                                           Josh R. Morriss, III                                                                         Chief Justice Date Submitted:          May 10, 2006 Date Decided:             May 11, 2006 hem a life estate in all their community property (hereinafter "subject property") and upon the death of the survivor, provided and granted a subsequent life estate in the subject property to their two sons, C. O. Williams and K. W. Williams. The joint and contractual will also vested fee simple in a remainder interest in the subject property to their three grandchildren, Joyce Mills, Jerry Williams and Gaylene Horton. The contractual will were [sic] executed by the Williams [sic] and properly witnessed in accordance with Texas Statutes. B. That the joint and contractual will executed by the Williams [sic] contained no language granting the survivor nor any life estate holders any right to convey or dispose of any property. C. That the joint and contractual will executed by CF Williams and Cordelia Williams had not been revoked prior to the death of CF Williams. D. That upon the death of her husband CF Williams on May 2, 1980, Cordelia Williams accepted the benefits under the joint and contractual will, that being a life estate interest in the subject property. E. That upon the death of CF Williams, C. O. Williams, the eldest son of CF Williams, did not probate the will of his father as Cordelia Williams had the right to her life estate on the property. F. That Cordelia Williams, a life estate holder of interest in the subject property under the joint and contractual will, executed a deed in December 1886 [sic], purporting to grant a fee simple interest in the subject property to her sons, C. O. Williams and K. W. Williams which would defeat said will. The purported deed violated the provisions of the contractual will to the detriment of the remaindermens' [sic] fee simple interest. G. That during the last few years of Cordelia Williams [sic] life, K. W. Williams and his wife, Betty Williams, lived on the subject property in a small trailer. H. That neither K. W. Williams or [sic] his wife Betty Williams were bonafide purchasers of the subject property, nor was C. O. Williams nor could they have been as all only had a life estate interest. I. That upon the death of Cordelia Williams, on July 10, 1988, C. O. Williams failed to probate the joint and contractual wills [sic] of his parents. However, C. O. Williams did carry the will to an attorney before the four year statute of limitations and did obtain an affidavit of heirship on July 7, 1992, which enhanced his and his brother's life estate to a fee simple interest to the detriment of the remaindermen in contravention of the will which he had presented to the Attorney, . . . . J. That upon learning of his father's failure to probate the wills [sic] of his grandparents in August of 1998, Jerry Williams immediately demanded that his father probate the will and moved to protect the rights of the remaindermen, namely himself, and his two sisters, Gaylene Plant and Joyce Mills by obtaining the will from [the attorney] and having . . . another local attorney . . . file it as a Muniment of Title. K. That while C. O. Williams failed to probate the joint and contractual will of CF and Cordelia Williams, Jerry Williams and Gaylene Plant did not default in failing to timely probate the joint and contractual will of CF Williams and Cordelia Williams, and that they provided justification for the delay in probate. L. As intervenors, Jerry Williams and Gaylene Plant had the right to intervene and assert their interests and that of their sister as Remaindermen beneficiaries. II. Conclusions of Law A. Since the joint and contractual will of CF Williams and Cordelia Williams had been executed with the requisite formalities, the will is mutual and contractual as [a] matter of law. Said will not only set forth the testamentary disposition of property but also [was] a contract between the testators, CF Williams and Cordelia Williams. Therefore, Cordelia Williams, as the surviving party to the contractual will, who also accepted the benefits thereunder, is estopped from changing its provisions. B. Upon the death of CF Williams, Cordelia Williams possessed only a life interest in the subject property pursuant to the joint and contract [sic] will she executed with her husband. She therefore exceeded the powers granted to her under the joint will when she attempted to convey the subject property in fee simple to her sons, C. O. Williams and K. W. Williams and any such conveyance is invalid. The affidavit of heirship authorized by C. O. Williams enlarging his and his brothers [sic] life estate to a fee simple interest is also invalid. C. Lastly, because the remainder fee interest of the Williams' [sic] grandchildren immediately vested upon the death of CF Williams, their rights are not cut off by any action or lack thereof on the part of C. O. Williams, Cordelia Williams and/or K. W. Williams. As holders of a vested remaindermen fee simple interest in the subject property, they still had the right to have the joint and contractual will of their grandparents probated as a Muniment of Title and take under the will. A trial court's findings of fact are reviewable for legal and factual sufficiency of the evidence by the same standards that are applied in reviewing evidence supporting a jury's answer. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). A trial court's conclusions of law are reviewed de novo. Asai v. Vanco Insulation Abatement, Inc., 932 S.W.2d 118, 121 (Tex. App.-El Paso 1996, no writ). A factual insufficiency point requires us to examine all of the evidence in determining whether the finding in question is so against the great weight and preponderance of the evidence as to be manifestly unjust. Id. In reviewing a legal sufficiency point, we may consider only the evidence and inferences that tend to support challenged findings and disregard all evidence and inferences to the contrary. Catalina, 881 S.W.2d at 297. Although the trial court included in its "Findings of Fact" matters more properly belonging in its "Conclusions of Law," Betty Jean makes no challenge to those findings that are truly matters of fact. Her two points of error, however, constitute a challenge to the court's conclusions of law, which we review de novo. Betty Jean first contends the trial court erred in admitting the will of C. F. and Cordelia Williams to probate, and hence challenges the court's conclusion that such will was properly probated. Under Texas law, no will shall be admitted to probate after the lapse of four years from the death of the testator unless it be shown by proof that the party applying for such probate was not in default in failing to present the will for probate within the four-year period. Tex. Prob. Code Ann. §Â 73(a) (Vernon 2003). The "not in default" language of Section 73 is held to be a due diligence standard. Brown v. Byrd, 512 S.W.2d 753, 755 (Tex. Civ. App.-Tyler 1974, no writ). Betty Jean contends "the issue before the Trial Court was whether or not there was any evidence whatsoever to excuse C. O. Williams for not probating the will." She contends "the record is absolutely silent of any credible evidence in which the Court could possibly find that C. O. Williams was 'no[t] in default.'" Jerry and Gaylene contend, on the other hand, that the default of one proponent of a will does not cut off the right of another proponent who is not in default. See Lutz v. Howard, 181 S.W.2d 869, 872 (Tex. Civ. App.-Eastland 1944, no writ). Even so, says Betty Jean, in this case we should not look at whether the other parties were "not in default," because C. O. was the only person who attempted to probate the will. Betty Jean is correct. Only the default of the party applying for the probate of the will is an issue. Id. C. O. is the party who applied to probate the will. Therefore, whether Jerry or Gaylene was in default is irrelevant, because neither of them applied to have the will probated. Jerry and Gaylene cite Armstrong v. Carter, 291 S.W. 626, 627 (Tex. Civ. App.-Waco 1927, no writ), a case involving another set of children who relied on their father to handle the family's business affairs. In Armstrong, the last will and testament of the children's mother was kept in a trunk by their father, who handled all the business affairs of the family. The children did not question their father about the will and did not see it until after his death. Id. The court found the children were not in default when they filed their mother's will for probate after their father's death, even though it was five years after the death of their mother. Id. The facts of Armstrong, however, are distinguishable from the instant case because Jerry and Gaylene did not apply to probate the will; only C. O. did. It appears from the findings of fact and conclusions of law that the trial court considered C. O. to have been in default at the time he probated the will (a finding not challenged by Betty Jean or by Jerry and Gaylene), but that such default was irrelevant to the rights of the remaindermen to probate the will. It is true that, as interested parties, Jerry and Gaylene had the right to apply to have the will probated. Tex. Prob. Code Ann. § 76 (Vernon 2003). However, they never exercised this right. Even after Jerry learned in 1998 that C. O. had not probated the will, and even though he had the will in his personal possession and took it to the courthouse, where he inquired about probating it, neither he nor Gaylene ever applied to have the will probated. Instead, they merely encouraged their father, C. O., to probate the will. Jerry and Gaylene did intervene in the probate proceeding, but they never applied to have the will probated. Because C. O. waited more than four years to apply to probate his parents' will, he was required to prove he was not in default, i.e, that he used due diligence. In his application to probate the will, he stated he had not known about the will. He later testified, however, he had always known about his parents' will and had even kept it in his own personal safety deposit box. Because C. O. was in default in failing to present the will within the four-year period, the trial court erred in admitting the will to probate. Tex. Prob. Code Ann. § 73(a). Betty Jean's first contention is sustained. In her second point of error, Betty Jean contends the trial court erred in concluding that the deed from Cordelia to C. O. and K. W., dated December 11, 1986, was not valid. The trial court and Jerry and Gaylene rely solely on the fact that C. F. and Cordelia's will was admitted to probate in their assertion that the 1986 deed was not valid. However, Tex. Prob. Code Ann. § 94 (Vernon 2003) provides, "no will shall be effectual for the purpose of proving title to, or the right to the possession of, any real or personal property disposed of by the will, until such will has been admitted to probate." Under this provision, a will cannot be used to prove title to real property disposed of by the will until the will has been properly admitted to probate. Because the trial court erred in admitting the 1977 will to probate, Jerry and Gaylene cannot rely on the intentions evidenced by the will to prove their ownership of the property. The trial court erred in concluding that the deed from Cordelia to C. O. and K. W., dated December 11, 1986, was not valid. Betty Jean's second point of error is sustained. We reverse the judgment of the trial court. We render judgment that Betty Jean Williams, as sole devisee of her husband, K. W. Williams, owns in fee simple an undivided one-half interest in the forty-four acres in question and that the heirs or devisees of C. O. Williams own in fee simple the other undivided one-half interest in such property. Donald R. Ross Justice Date Submitted: June 20, 2003 Date Decided: June 27, 2003

01-03-2023

09-07-2015

https://www.courtlistener.com/api/rest/v3/opinions/2897260/

NO. 07-08-0146-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A MAY 27, 2008 ______________________________ IN THE MATTER OF THE MARRIAGE OF LINDA M. MCGUYER AND MICHAEL S. GARCIA _________________________________ FROM THE COUNTY COURT AT LAW NO. 2 OF RANDALL COUNTY; NO. 58,099-L2; HONORABLE RONNIE WALKER, JUDGE _______________________________ Before CAMPBELL and HANCOCK and PIRTLE, JJ. MEMORANDUM OPINION Appellant, Linda McGuyer, perfected an appeal from the trial court’s judgment finding that the parties were not married.  McGuyer has now filed a motion to dismiss her appeal and has conformed to the requirements of Rule 10.1 of the Texas Rules of Appellate Procedure.  This disposition is authorized by Rule 42.1(a)(1) and 43.2(f) of the Texas Rules of Appellate Procedure.  Finding the motion complies with the requirements of Rules 10.1 and 42.1(a), we dismiss the appeal.  Further, the court will tax costs against  McGuyer.   Tex. R. App. P. 42.1(d). Having disposed of this appeal at McGuyer’s request, we will not entertain a motion for rehearing and our mandate shall issue forthwith. Per Curiam

01-03-2023

09-08-2015

https://www.courtlistener.com/api/rest/v3/opinions/4539902/

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, ) ) No. 79765-4-I Respondent, ) ) DIVISION ONE v. ) ) UNPUBLISHED OPINION ANDREW LEE BRANCH, JR, ) ) Appellant. ) ) SMITH, J. — Andrew Branch Jr. appeals his conviction for possession of a stolen vehicle. He contends that the trial court erred by admitting an officer’s testimony that he saw Branch in the vehicle several days before Branch’s arrest. Branch also contends that the prosecutor committed reversible misconduct during closing, that his counsel was ineffective for not objecting to the prosecutor’s comments, and that cumulative error warrants reversal. We hold that Branch failed to preserve error with regard to the admission of the officer’s testimony. We further hold that although some of the prosecutor’s statements during closing were improper, none were prejudicial. Therefore, defense counsel was not ineffective for not objecting to them, and cumulative error does not warrant reversal. We affirm. FACTS The State charged Branch in September 2018 with one count of Citations and pin cites are based on the Westlaw online version of the cited material. No. 79765-4-I/2 possession of a stolen vehicle.1 At trial, Officer Sean Culbertson of the Seattle Police Department testified that while on patrol around 5:00 a.m. on July 24, 2018, he stopped a car after he saw it make an illegal maneuver. Branch, who was driving, got out of the car and left it running. The car, a silver 1992 Honda Accord, had been reported stolen eight days earlier. Officer Culbertson testified that when he ran the car’s rear license plate number, he discovered it belonged to a 2002 Honda Civic, not a 1992 Honda Accord. Officer Culbertson thus placed Branch under arrest for possession of a stolen vehicle. Officer Nicholas King, who arrived on scene after Officer Culbertson, testified that he removed the rear license plate from the car. Officer King also removed a key from the ignition and placed it, together with the license plate, into evidence. A detective later testified that the key recovered from the ignition appeared to be a “shaved” key, i.e., a key whose ridges had been filed down to “make[ ] the key more accessible to a variety of make and models of cars.” And a latent print examiner testified that a fingerprint found on the back of the license plate matched prints later taken from Branch. Officer Nathan Lemberg also testified at Branch’s trial. Officer Lemberg testified that on July 18, 2018, i.e., six days before Branch was arrested, he was patrolling the Aurora corridor on his bicycle when a silver Honda Accord caught his attention. He testified that “[a] black male, 30s with long dread locks past his shoulder” was sitting in the vehicle. Officer Lemberg ran the license plate 1The State also charged Branch with one count of violation of the Uniform Controlled Substances Act, chapter 69.50 RCW. That charge is not at issue in this appeal. 2 No. 79765-4-I/3 number for the Accord, but by the time he learned it had been reported stolen, the vehicle had left and Officer Lemberg was no longer in the area. Officer Lemberg broadcasted the information over the radio but did not take any other action that day with regard to the Accord. Officer Lemberg testified that several days later, he was scheduled to patrol Aurora again, so he “wanted to see if the vehicle was still reported stolen and if [he] needed to be looking for it.” He then testified as follows: [PROSECUTOR:] And did you see that there had been [an] arrest for the – for that vehicle? [OFFICER LEMBERG:] Yes. [PROSECUTOR:] Did you recognize the person that was under arrest? [OFFICER LEMBERG:] Yes. [PROSECUTOR:] Had you had a prior contact with that person? [OFFICER LEMBERG:] Yes. [PROSECUTOR:] Is that person in the room today? [OFFICER LEMBERG:] Yes. [PROSECUTOR:] Could you please identify the person? [OFFICER LEMBERG:] It’s the black male with the dread locks in the white long sleeve button down. [PROSECUTOR:] How sure are you that the person you saw in the car on July 18th, 2018 is the same person that you saw had been arrested? [OFFICER LEMBERG:] If I had to assign a number to it I would say around 75 percent. [PROSECUTOR:] Is that the same for the person you saw in the car on July 18th and you see today? 3 No. 79765-4-I/4 [OFFICER LEMBERG:] Yes. [PROSECUTOR:] And you – and it’s correct you wrote a report about this after? [OFFICER LEMBERG:] That’s correct. The jury convicted Branch of possession of a stolen vehicle. Branch appeals. Additional facts related to the issues Branch raises on appeal are set forth below in the analysis of those issues. ANALYSIS Admission of Officer Lemberg’s Testimony Branch contends that Officer Lemberg’s testimony about his July 18 encounter with the Accord constituted evidence of a prior bad act under ER 404(b).2 Accordingly, Branch argues, the trial court erred by admitting the testimony without balancing its probative value against its prejudicial effect.3 He contends further that the trial court’s error was not harmless and, thus, reversal is required. Because Branch failed to preserve error with regard to the admissibility of Lemberg’s testimony as a prior bad act, we disagree. “The appellate court may refuse to review any claim of error which was not raised in the trial court.” RAP 2.5(a). Additionally, “[e]rror may not be predicated 2 ER 404(b) provides, “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.” 3 “Before a trial court may admit evidence of other crimes or misconduct, it must . . . balance the probative value of the evidence against the danger of unfair prejudice.” State v. Mee, 168 Wn. App. 144, 154, 275 P.3d 1192 (2012). 4 No. 79765-4-I/5 upon a ruling which admits . . . evidence unless . . . a timely objection . . . is made, stating the specific ground of objection, if the specific ground was not apparent from the context.” ER 103(a)(1) (emphasis added). Here, Branch did not object below to the admission of Officer Lemberg’s testimony on the ground of ER 404(b). To be sure, Branch did move in limine to exclude Officer Lemberg’s testimony. But that motion asserted that Lemberg’s later identification of Branch was impermissibly suggestive under an application of the Manson4 factors, and that its probative value was outweighed by its prejudicial effect for that reason. Branch also made a general motion in limine to exclude prior bad acts evidence under ER 404(b), but Branch did not mention Officer Lemberg’s testimony in the context of that motion. Rather, it is clear from the argument on that motion that it was directed at evidence regarding another pending case and Branch’s other contacts with police, not the July 18 contact with Officer Lemberg. Finally, before Officer Lemberg testified, the prosecutor expressed concern about the scope of examination and whether counsel could elicit specifics about how Officer Lemberg identified Branch, e.g., by reading the arrest report and looking at the location. But at no point in the resulting colloquy did Branch’s counsel contend that Officer Lemberg’s testimony about the July 18 encounter constituted evidence of a prior bad act. In short, Branch did not argue below that Officer Lemberg’s testimony about the July 18 encounter constituted evidence of a prior bad act under ER 4 Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977). 5 No. 79765-4-I/6 404(b). And although Branch did contend that Officer Lemberg’s identification of Branch was impermissibly suggestive, he does not renew that argument on appeal.5 Furthermore, Branch does not argue that the trial court’s admission of Officer Lemberg’s testimony was an error of constitutional magnitude that can be raised for the first time on appeal. Cf. State v. Jackson, 102 Wn.2d 689, 695, 689 P.2d 76 (1984) (“Evidentiary errors under ER 404 are not of constitutional magnitude.”) For these reasons, we decline to consider Branch’s ER 404(b) challenge to Officer Lemberg’s testimony. Prosecutorial Misconduct Branch contends that the prosecutor committed reversible misconduct during closing. We disagree. Prosecutorial misconduct may deprive a defendant of his guaranty to a fair trial under the Sixth and Fourteenth Amendments to the United States Constitution and article I, section 22 of the Washington State Constitution. In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 703-04, 286 P.3d 673 (2012) (plurality opinion). “To prevail on a claim of prosecutorial misconduct, the defendant must establish ‘that the prosecutor’s conduct was both improper and prejudicial in the context of the entire record and the circumstances at trial.’” State v. Thorgerson, 172 Wn.2d 438, 442, 258 P.3d 43 (2011) (internal quotation marks omitted) (quoting State v. Magers, 164 Wn.2d 174, 191, 189 P.3d 126 5Alternatively, to the extent that Branch does raise this argument on appeal, it is not adequately briefed to warrant consideration. See Norcon Builders, LLC v. GMP Homes VG, LLC, 161 Wn. App. 474, 486, 254 P.3d 835 (2011) (appellate court “will not consider an inadequately briefed argument”). 6 No. 79765-4-I/7 (2008)). “We review a prosecutor’s comments during closing argument in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the jury instructions.” State v. Boehning, 127 Wn. App. 511, 519, 111 P.3d 899 (2005). If the defendant establishes that a prosecutor’s statements are improper, “we determine whether the defendant was prejudiced under one of two standards of review.” State v. Emery, 174 Wn.2d 741, 760, 278 P.3d 653 (2012). “If the defendant objected at trial, the defendant must show that the prosecutor’s misconduct resulted in prejudice that had a substantial likelihood of affecting the jury’s verdict.” Emery, 174 Wn.2d at 760. But where, as here, the defendant did not object at trial, “the defendant is deemed to have waived any error, unless the prosecutor’s misconduct was so flagrant and ill intentioned that an instruction could not have cured the resulting prejudice.” Emery, 174 Wn.2d at 760-61. “Under this heightened standard, the defendant must show that (1) ‘no curative instruction would have obviated any prejudicial effect on the jury’ and (2) the misconduct resulted in prejudice that ‘had a substantial likelihood of affecting the jury verdict.’” Emery, 174 Wn.2d at 761 (quoting Thorgerson, 172 Wn.2d at 455). Here, Branch first contends that the prosecutor committed misconduct by “repeatedly bringing the jurors’ attention to the officer witnesses’ superior intelligence and telling jurors that this case is just the type of case where everything ‘fall[s] into place.’” Specifically, Branch asserts: [The prosecutor] told jurors that: “Officer Culbertson does a good job here”; “Probably the best thing – the smartest thing that Officer Culbertson did here . . .”; “Officer King actually takes the plate into evidence . . . which is a very, very smart thing to do here”; Officer 7 No. 79765-4-I/8 Culbertson “thought about what’s the next best thing to do, what’s the smartest thing to do? Get that license plate.” (Most alterations in original.) Branch also points out that the prosecutor told jurors, “At the end of the day this was a really good investigation” and also, This was a very good investigation, very smart for them to put that plate for fingerprint testing, very smart to get that key out of the ignition the[ ] way they did. Sometimes cases really are straightforward. Sometimes cases really kind of fall into place. And that’s what you have here. Absent Mr. Branch making a full confession you have a really good case here. Branch contends that these statements constituted improper bolstering and that they “interfered with individual jurors’ role of assessing the facts, witness credibility, and the quality of the investigation themselves.” We agree, in part. Specifically, although “[a] prosecutor has wide latitude in closing argument to draw reasonable inferences from the evidence and to express such inferences to the jury,” Boehning, 127 Wn. App. at 519, a prosecutor may not express a personal opinion independent of the evidence, because juries may believe that prosecutors have insider information that was not shared during trial. See State v. Susan, 152 Wash. 365, 380, 278 P. 149 (1929) (“A jury might well believe that such a statement by a sworn officer of the law, in whom they have confidence, might indicate that such officer was acquainted with facts which had not been disclosed to the jury by the testimony.”). Additionally, “it is generally improper for prosecutors to bolster a police witness’s good character even if the record supports such argument.” State v. Jones, 144 Wn. App. 284, 293, 183 P.3d 307 (2008). Here, the prosecutor’s statement that the case was “straightforward” and 8 No. 79765-4-I/9 one that “really kind of fall[s] into place” was an acceptable appeal to the jury’s common sense based on the evidence the prosecutor referred to immediately before his statement—namely, the key and the license plate. Indeed, the jury was expressly instructed that the evidence in the case included “evidence from which, based on your common sense and experience, you may reasonably infer something that is at issue in this case.” (Emphasis added.) However, the prosecutor’s statements that the officers made “smart” decisions and that their investigation was “really good”; “a very good investigation” were improper. These statements crossed the line from reasonable inferences from the evidence to personal opinions suggesting that this case was investigated better than other cases with which the prosecutor was familiar. They also bolstered the officers’ character by implying that the officers were smart and good investigators. Nevertheless, we conclude that these comments were not prejudicial. Specifically, unlike Jones, the case on which Branch primarily relies, this was not a case where “the verdict depended substantially on whether the jury found [the officer]’s testimony credible.” Jones, 144 Wn. App. at 300-01. Instead, there was substantial evidence of Branch’s guilt independent of the officers’ testimony—specifically, the shaved key and the presence of Branch’s fingerprint on the back of the mismatched license plate. Furthermore, Branch’s selective recounting of the prosecutor’s comments omits the context in which they were made. In the course of arguing that Officer Culbertson’s decision to take the plate into evidence was “smart” or the “smartest 9 No. 79765-4-I/10 thing to do,” the prosecutor also argued, “It wouldn’t have made sense for the officer to say let’s get fingerprints inside the car because clearly Mr. Branch was in the car.” Similarly, in the course of arguing that the investigation was a “really good investigation,” the prosecutor argued: The fact that you’re going to say that prints should’ve been done from inside the vehicle to see if there were other people in there, what would that have proven, that other – that he had friends ride around with him in the car? What would – what would that have get – what would that have helped the State prove? Nothing. When the prosecutor’s comments are viewed in context, it is clear that the prosecutor was addressing an argument that defense counsel was anticipated to make—i.e., that the officers should have tested the inside of the car for prints— by arguing that the decision not to do so was reasonable. The prosecutor could and should have made this point without injecting his personal opinion. But we are not persuaded that, in the context of the total argument and the circumstances at trial, including the other evidence of Branch’s guilt, the prosecutor’s comments had a substantial likelihood of affecting the jury verdict. And they certainly were not flagrant and ill intentioned. Therefore, these comments do not require reversal. Branch also contends that the prosecutor committed improper bolstering by “claim[ing] that none of the officers had personal relationships with the defendant, ‘or something where there’s somehow [a] bias’” and by stating, “The witnesses testified the best they could”; “When they didn’t know something they asked for clarification”; “They knew – stuff they knew they were readily able to say and stuff they didn’t know then they had their recollection refreshed when 10 No. 79765-4-I/11 they looked at their reports”; and “Like, they knew what they were talking about.” We conclude that the prosecutor’s claim that the officers did not have personal relationships with the defendant “or something where there’s somehow a bias” was improper, but the remaining statements were not. Specifically, “a prosecutor may not make statements that are unsupported by the evidence.” Boehning, 127 Wn. App. at 519. To this end, the State does not point to any evidence that would support the prosecutor’s claim that the officers did not have a personal relationship with or bias against Branch. Instead, the State argues that it “was not misconduct to note the absence of bias on the part of the officers when there was no evidence of bias.” And, to be sure, “a prosecutor may comment on the absence of certain evidence if persons other than the defendant could have testified regarding that evidence.” State v. Jackson, 150 Wn. App. 877, 887, 209 P.3d 553 (2009). But here, the prosecutor did not just comment on the absence of evidence of a personal relationship with or bias against Branch—rather, the prosecutor stated as fact that the officers did not have a relationship with or bias against him. These statements were improper. The remainder of the prosecutor’s statements, however, were not improper. Rather, when viewed in context, they acceptably summarized and drew reasonable inferences from the quality of the witnesses’ memories and the manner in which they testified—factors that the jury was expressly permitted to consider in judging credibility.6 6 Jury instruction 1 provided in relevant part: “In considering a witness’s testimony, you may consider these things: . . . the quality of a witness’s memory while testifying; the manner of the witness while testifying; . . . and any other 11 No. 79765-4-I/12 Additionally, and though improper, the prosecutor’s claim that the officers did not have a relationship with or bias against Branch was not prejudicial. As already discussed, this was not a case that turned on the officers’ testimony— instead, there was substantial evidence of Branch’s guilt independent of that testimony. And Branch cites no authority that persuades us that the prosecutor’s single reference to the officers’ lack of bias was so flagrant and ill intentioned as to require reversal. Cf. State v. Belgarde, 110 Wn.2d 504, 508-09, 755 P.2d 174 (1988) (reversal required where prosecutor in murder trial told jury “that the defendant [was] ‘strong in’ a group which the prosecutor describe[d] as a ‘deadly group of madmen’, and ‘butchers that kill indiscriminately’” and that the prosecutor likened to terrorists). Therefore, reversal is not required. Branch next contends that the prosecutor committed reversible misconduct by saying, “Everything that was testified to is pretty reasonable. It all kind of makes sense. It all flows together. There’s nothing that’s too outlandish. Everything sounded pretty reasonable.” But Branch again omits the context for these comments, which were immediately followed by an appeal to the jury’s common sense, a reference to the jury instructions, and a summary of evidence from which the jury could reasonably infer that Branch knew the car was stolen. Taken in context, the prosecutor was merely informing the jury that it could employ common sense and notions of reasonableness in evaluating the factors that affect your evaluation or belief of a witness or your evaluation of his or her testimony.” 12 No. 79765-4-I/13 evidence, as expressly permitted by the court’s jury instructions.7 This was not misconduct. Finally, Branch contends that the prosecutor committed reversible misconduct by using the phrase “we know” when summarizing the facts. But the record in this case confirms that the prosecutor was not using “we know” to suggest that the State had subjective knowledge of the facts. To the contrary, the record is clear that the prosecutor was not employing ”we” to refer to himself or to the State, but to marshal the evidence that was admitted at trial and the reasonable inferences from that evidence. Accordingly, Branch’s contention fails. Cf. United States v. Younger, 398 F.3d 1179, 1191 (9th Cir. 2005) (use of the phrase “we know” not improper where used “to marshal evidence actually admitted at trial and reasonable inferences from that evidence, not to vouch for witness veracity or suggest that evidence not produced would support a witness’s statements.”). Ineffective Assistance Branch contends that his counsel was ineffective for not objecting to the prosecutor’s comments during closing. But as discussed, the prosecutor’s improper comments were not prejudicial. Therefore, Branch’s counsel was not deficient for not objecting to those comments or to the prosecutor’s other 7Jury instruction 6 provided in relevant part: “The term ‘circumstantial evidence’ refers to evidence from which, based on your common sense and experience, you may reasonably infer something that is at issue in this case.” Additionally, jury instruction 1 allowed the jury to consider “the reasonableness of the witness’s statements in the context of all of the other evidence” in considering a witness’s testimony. 13 No. 79765-4-I/14 challenged comments, and Branch’s ineffective assistance claim fails. See Thorgerson, 172 Wn.2d at 455 (“[S]ince the challenged conduct was not improper or not prejudicial, [the defendant] failed to establish that counsel’s performance was deficient.”); In re Pers. Restraint of Davis, 152 Wn.2d 647, 757, 101 P.3d 1 (2004) (“To establish a claim of ineffective assistance of counsel, [the defendant] must show both deficient performance and resulting prejudice.”). Cumulative Error As a final matter, Branch contends that cumulative error denied him of his right to a fair trial. Because the prosecutor’s nonprejudicial comments during closing are the only errors identified in this appeal, we disagree. See State v. Venegas, 155 Wn. App. 507, 520, 228 P.3d 813 (2010) (cumulative error doctrine “does not apply where the errors are few and have little or no effect on the trial’s outcome”). We affirm. WE CONCUR: 14

01-03-2023

06-08-2020

https://www.courtlistener.com/api/rest/v3/opinions/2791674/

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 15a0064p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________ ANGEL GARCIA; ESTELA GARCIA, ┐ Plaintiffs-Appellants, │ │ │ No. 14-1687 v. │ > │ FEDERAL NATIONAL MORTGAGE ASSOCIATION; │ MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, │ INC.; BAC HOME LOANS SERVICING, LP; BANK OF │ AMERICA, N.A., │ Defendants-Appellees, │ │ │ FEDERAL HOUSING FINANCE AGENCY, │ Intervenor-Appellee. │ ┘ Appeal from the United States District Court for the Western District of Michigan at Grand Rapids No. 1:13-cv-01259—Robert J. Jonker, District Judge. Decided and Filed: April 7, 2015 Before: MERRITT, STRANCH, and DONALD, Circuit Judges. _________________ COUNSEL ON BRIEF: Jason D. Jenkinson, Traverse City, Michigan, for Appellants. Steven R. Smith, Jena M. Valdetero, BRYAN CAVE, LLP, Chicago, Illinois, for Defendants-Appellees. Howard N. Cayne, Asim Varma, Michael A. Johnson, ARNOLD & PORTER LLP, Washington, D.C., for Intervenor-Appellee. MERRITT, J., delivered the opinion of the court, in which STRANCH, J., joined. DONALD, J. (pp. 11–12), concurred in the judgment only. 1 No. 14-1687 Garcia, et al. v. Fed. Nat’l Mortgage Ass’n., et al. Page 2 _________________ OPINION _________________ MERRITT, Circuit Judge. This case presents another appeal from a home foreclosure in Michigan. Plaintiffs raise one issue on appeal: Whether the district court erred in dismissing plaintiffs’ due process claim because it found that the Federal National Mortgage Association,1 commonly referred to as Fannie Mae, was not a state actor for constitutional purposes when it foreclosed upon their home? We affirm the district court’s judgment dismissing the due process claim as without merit, but on the ground that the Michigan foreclosure procedure does not violate due process. I. Plaintiffs Angel and Estela Garcia obtained a home loan in 2003 from First Guaranty Mortgage Corporation and granted a mortgage to Mortgage Electronic Registration Systems, Inc., sometimes referred to as “MERS,” 2 as mortgagee and nominee for lender First Guaranty and its successors and assigns. The mortgage was duly recorded with the Leelanau Register of Deeds. In January 2011, Mortgage Electronic Registration Systems assigned the mortgage to BAC Home Loans Servicing, LP, and the assignment was recorded. BAC Home Loans merged into Bank of America on July 1, 2011, and Bank of America became the mortgage holder. As successor by merger, Bank of America was not required to record the assignment. Plaintiffs do not dispute that in 2007 they fell behind on their mortgage payments and defaulted on the loan. In January 2011, plaintiffs received a letter regarding the default and containing information explaining their rights, including the right to seek a loan modification. Plaintiffs sought foreclosure-related assistance from the Northern Michigan Community Action 1 Fannie Mae, and its twin brother Freddie Mac, are government–sponsored private enterprises that purchase and securitize residential mortgages. Specifically, Fannie Mae is a federally chartered corporation that operates in the secondary mortgage market, purchasing and securitizing residential mortgages to provide mortgage lenders with capital to use to fund additional mortgages. 2 MERS is a system for electronically tracking interests in mortgages that are traded on the secondary market. MERS members (approximately 6,000) agree that MERS serves as mortgagee or beneficiary, and when loan ownership or servicing rights are sold from one MERS member to another, MERS remains the titleholder to the security instrument as nominee on behalf of whoever owns the loan. The language on a standard mortgage or deed of trust reads: “MERS is the mortgagee [or beneficiary] of this security instrument. MERS is a separate corporation that acts solely as nominee on behalf of the lender and its successors and assigns.” No. 14-1687 Garcia, et al. v. Fed. Nat’l Mortgage Ass’n., et al. Page 3 Agency, and Mr. Garcia and his son attended a workshop offered by the agency on how to prevent foreclosure. Plaintiffs also attended a meeting with Bank of America’s legal counsel in April 2011, providing counsel with financial information and forms prepared with help from the Northern Michigan Community Action Agency.3 Plaintiffs were offered a loan modification by Bank of America allowing for reduced payments for a three-month trial period. The letter offering the loan modification directed plaintiffs to make the lowered payments on time for three months and stated that if all the trial period payments were timely made, the loan would be permanently modified. Plaintiffs allege that they made the three payments in accordance with the letter, but that they did not receive any further information regarding a new payment amount after the three modified payments were made. They also allege that Bank of America returned two payments they attempted to make in March 2012. Despite the returned payments, Bank of America offered plaintiffs a permanent loan modification in May 2012 and instructed them to execute and return the loan modification agreement sent to them. Plaintiffs do not allege that they ever executed or returned the loan modification agreement to Bank of America, and Bank of America confirms that it never received any of the required loan modification documents. In August 2012, Bank of America’s legal counsel sent plaintiffs a letter informing them that because they were in default and had not accepted the loan modification agreement, a non- judicial foreclosure would proceed. Notice of the foreclosure was published in accordance with Michigan law and the property was sold at a sheriff’s sale on October 12, 2012. Bank of America was the high bidder and purchased the property. It then executed a quitclaim deed to Fannie Mae that was recorded on November 29, 2012. The six-month statutory redemption period under Michigan law expired on April 12, 2013. In June 2013, Fannie Mae filed a possession action in the local court. On October 15, 2013, more than six months after the statutory redemption period had expired, plaintiffs filed this action in Michigan state court against defendants Fannie Mae, Mortgage Electronic Registration Systems, BAC Home Loans Servicing, LP, and Bank of America, N.A. Defendants removed the case to federal court 3 Plaintiffs claim that they are not proficient in the English language, but they do not claim that this prohibited them from receiving adequate notice of the default or understanding their rights in the foreclosure process with help from the Northern Michigan Community Action Agency and their son. No. 14-1687 Garcia, et al. v. Fed. Nat’l Mortgage Ass’n., et al. Page 4 pursuant to both diversity and federal-question jurisdiction. The Federal Housing Finance Agency, the federal “conservator” for winding up the affairs of Fannie Mae, was permitted to intervene.4 Plaintiffs brought four claims in their complaint: (1) Quiet Title pursuant to Mich. Comp. Laws § 600.2932; (2) violations of Fifth and Fourteenth Amendment Due Process Rights; (3) illegal/improper foreclosure and sheriff’s sale pursuant to Mich. Comp. Laws § 600.3204; and (4) violation of Mich. Comp. Laws § 3205 et seq. Defendants Fannie Mae, Mortgage Electronic Registration Systems, BAC Home Loans Servicing and Bank of America filed a motion to dismiss, as did the intervenor, Federal Housing Finance Agency. The district court granted the motions to dismiss on all claims. Plaintiffs appeal only the dismissal of Count II, which claims violation of their Fifth and Fourteenth Amendment Due Process Rights. II. We review a ruling on a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss de novo. Casias v. Wal–Mart Stores, Inc., 695 F.3d 428, 435 (6th Cir. 2012). A complaint must contain sufficient factual matter, accepted as true, to “state a claim [for] relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face if the “plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 4 Congress enacted the Housing and Economic Recovery Act, Pub. L. 110–289, 122 Stat. 2654, on July 30, 2008. The Act created the Federal Housing Finance Agency as the successor agency to the Office of Federal Housing Enterprise Oversight, which had been established in 1992 to regulate Fannie Mae and Freddie Mac, and the Federal Housing Finance Board. Congress designated the Federal Housing Finance Agency “an independent agency of the Federal Government” and authorized the Director to issue regulations, using notice and opportunity for public comment pursuant to the Administrative Procedure Act, 5 U.S.C. § 553. The Federal Housing Finance Agency regulates and supervises Fannie Mae, Freddie Mac, and the twelve Federal Home Loan Banks. 12 U.S.C. § 4511 (2008). Additionally, the Federal Housing Finance Agency serves as conservator or receiver of Fannie Mae and Freddie Mac for purposes of “reorganizing, rehabilitating, or winding up [their] affairs.” Id. § 4617(a)(2). The Director of the Federal Housing Finance Agency was given “general regulatory authority over” Fannie Mae and Freddie Mac (as well as the Federal Home Loan Banks and the Office of Finance), id. § 4511(b)(2), and was directed to ensure, among other things, that Fannie Mae and Freddie Mac operate “in a safe and sound manner” and “foster liquid, efficient, competitive, and resilient national housing finance markets . . . .” 12 C.F.R. § 1200.2. No. 14-1687 Garcia, et al. v. Fed. Nat’l Mortgage Ass’n., et al. Page 5 III. The Fifth and Fourteenth Amendments prohibit the deprivation of property by a state actor without due process of law. Our previous decisions concerning the Due Process Clause as it relates to foreclosures by Freddie Mac and Fannie Mae have focused on whether Freddie Mac and Fannie Mae have been transformed into state actors in light of the conservatorship of the Federal Housing Finance Agency.5 We have not addressed the questions of whether the Federal Housing Finance Agency is a state actor and what restrictions the Due Process Clause may impose on the Agency in its direction of Fannie Mae. We find it unnecessary to wade into that discussion in this case. Even if the Due Process Clause constrains the Federal Housing Finance Agency in its direction of Fannie Mae, its compliance with Michigan’s foreclosure-by- advertisement procedures satisfied the requirements of the Due Process Clause. We begin with a brief look at the historical development of foreclosure and redemption at common law. At early common law, the mortgagee had the right to confiscate the mortgaged property at the time of the first missed payment. If the mortgagor had made a number of payments, the mortgagee received a windfall because it kept all payments made up to the time of default and then also received full title to the property as well. Accordingly, the Court of Chancery in the sixteenth century sought to mitigate this harsh result by granting the mortgagor an equitable period of time to redeem the property by coming current with the payments. The mortgagor’s equity of redemption demonstrates the equity courts’ reluctance to permit unfair or inequitable loss of a person’s property. However, the ambiguity surrounding the equitable redemption process, particularly the uncertainty of the amount of time to redeem the property, prompted states to regularize the process with statutory redemption periods starting in the early 1800s. See Theodore F. T. Plucknett, A Concise History of the Common Law 603-08 (1956); Thomas W. Bigley, Comment, Property Law–The Equity of Redemption: Who Decides When It Ends?, 21 Wm. Mitchell L. Rev. 315, 319-22 (1995); Grant Nelson & Dale Whitman, Real Estate Finance Law §§ 7:1-7:5 (3d ed. 1994). 5 See Mik v. Fed. Home Loan Mortg. Corp., 743 F.3d 149, 168 (6th Cir. 2014); Rubin v. Fannie Mae, 587 F. App’x 273 (6th Cir. 2014); Bernard v. Fed. Nat’l Mortg. Ass’n, 587 F. App’x 266 (6th Cir. 2014), petition for cert. filed, 83 U.S.L.W. 3636 (U.S. Dec. 29, 2014) (No. 14-804); Fed. Home Loan Mortg. Corp. v. Gaines, 589 F. App’x 314 (6th Cir. 2014), petition for cert. filed, 83 U.S.L.W. 3636 (U.S. Dec. 29, 2014) (No. 14-804); Heibel v. Fed. Nat’l Mortg. Ass’n, 581 F. App’x 543 (6th Cir. 2014). No. 14-1687 Garcia, et al. v. Fed. Nat’l Mortgage Ass’n., et al. Page 6 As a result, two types, or phases, of the right to redemption now generally exist in the United States. The first is an “equitable” redemption period that occurs before the foreclosure and sale of the property. It allows the mortgagor to pay the outstanding debt and have his rights to the property restored. This opportunity may not be waived by contract and is a creation of the Court of Chancery four centuries ago. The right to redeem after the foreclosure and sale is a “statutory right of redemption.” Statutory redemption provides that even after the equitable right of redemption has been foreclosed, the borrower has one more opportunity to regain the property by paying the purchaser at the foreclosure sale the price paid at the sale. The statutory redemption period is in fact an additional period granted to the property owner after the equitable redemption period ends at the time of sale. The requirement for “due process of law” functions somewhat like equity to require procedural fairness and to prohibit the state from conducting unfair or arbitrary proceedings. “Procedural due process” at its core requires notice and an opportunity to be heard “at a meaningful time and in a meaningful manner.” Armstrong v. Manzo, 380 U.S. 545, 552 (1965); see also Mathews v. Eldridge, 424 U.S. 319, 333 (1976). Accordingly, the Due Process Clause is flexible and calls for such procedural protections as the particular situation demands. Due process is required to prevent, to the extent possible, an erroneous deprivation of property. See Gilbert v. Homar, 520 U.S. 924, 930-32 (1997) (due process calls for such procedural protections as the situation demands). The extent to which procedural due process must be afforded the plaintiff is influenced by the extent to which he may suffer loss and depends upon whether his interest in avoiding that loss outweighs the governmental interest in summary adjudication. Cafeteria & Rest. Workers Union v. McElroy, 367 U.S. 886 (1961), tells us that “consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.” Id. at 895. Although we find no Supreme Court opinion ruling on what procedures satisfy due process in this foreclosure context, lower courts, scholars, Congress, and agencies have taken varied approaches to the question of whether, and how, federally related entities, including the Department of Veterans Affairs, and its predecessor the Veterans Administration, the Farmers No. 14-1687 Garcia, et al. v. Fed. Nat’l Mortgage Ass’n., et al. Page 7 Home Administration, and the Department of Housing and Urban Development are subject to due process constraints when they foreclose mortgages. These agencies, which sometimes are direct lenders and other times only insure loans to borrowers, may utilize nonjudicial foreclosures that provide specified notice requirements but no hearing before the property is sold. See Florence Wagman Roisman, Protecting Homeowners from Non-Judicial Foreclosure of Mortgages Held by Fannie Mae and Freddie Mac, 43 Real Estate L. J. 125 (2014). A. Notice The traditional assumption in the United States has been that the required notice for a foreclosure is a contractual or statutory matter and not a constitutional problem. See Scott v. Paisley, 271 U.S. 632, 635 (1926) (notice to a mortgagor is sufficient if a sale of mortgaged property is conducted in accordance with the terms of a contract). More recent Supreme Court decisions have required that to satisfy the Due Process Clause, the notice must be “reasonably calculated . . . to apprise interested parties . . . .” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950); see also Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 798 (1983) (“When the mortgagee is identified in a mortgage that is publicly recorded, constructive notice by publication must be supplemented by notice mailed to the mortgagee’s last known available address, or by personal service.”). The Michigan foreclosure-by-advertisement statute’s notice requirements are not at odds with notions of due process under both common law and Supreme Court precedent. The statute requires notice and opportunities to cure the default or redeem the property at several points before the borrower’s rights are fully extinguished. The process begins with written notice to the borrower by the foreclosing party, by first-class mail and certified mail, return receipt requested, both sent to the borrower’s last-known address. The notice must set forth the reasons that the mortgage is in default and state the amount that is due and owing, and inform the borrower that he has 30 days to request a meeting to attempt to work out a loan modification. If the borrower requests such a meeting within 30 days of receiving notice of the default, foreclosure proceedings will not commence until at least 90 days after the notice is mailed to the borrower. The default notice must also inform the borrower of the number of days in the redemption period No. 14-1687 Garcia, et al. v. Fed. Nat’l Mortgage Ass’n., et al. Page 8 that will be available to the borrower if the property is eventually sold at a foreclosure sale. Mich. Comp. Laws §§ 600.3205a-.3205e, 600.3212 (2012).6 The foreclosing party must then give notice to the borrower of the date of foreclosure and sheriff’s sale by publishing a notice for four successive weeks, at least once in each week, in a newspaper published in the county where the premises are located. A copy of the notice must also be posted in a conspicuous place upon the premises described in the notice. Id. § 600.3208. The notice must also include a statement that if the property is sold at a foreclosure sale, the borrower may bid on the property at the sheriff’s sale. Id. § 600.3228. Following the date of the sheriff’s sale, the borrower has a six-month, post-foreclosure statutory redemption period in which he may redeem the property pursuant to the procedures set forth in the Michigan law. Mich. Comp. Laws § 600.3240. As noted above, the borrower must be given notice of this six-month statutory period for residential properties in the notice of default. Mich. Comp. Laws § 600.3205a(j). During the six-month post-foreclosure redemption period, if the borrower believes there has been “fraud or irregularity” in the foreclosure process that has prejudiced his right to retain or redeem his property, he may bring an action in a court of law requesting that the foreclosure be stayed and that the sale be set aside. Kim v. JPMorgan Chase Bank, N.A., 825 N.W.2d 329, 337 (Mich. 2012). The borrower also has the full complement of Michigan common law remedies regarding fraud, misrepresentation or other unfair practices or dealings, within their applicable statutes of limitation, under which to bring legal action against appropriate parties if the facts so warrant. Plaintiffs do not dispute that they received the required statutory notice of the foreclosure and subsequent sheriff’s sale by both notice posted on the property and notice in the local newspaper. Thus, the Michigan statute provides notice to the homeowner of the default, foreclosure, and sale, as well as notice regarding how to cure the default, notice of an opportunity to seek a loan modification, and notice of how to redeem the property. The plaintiffs 6 Portions of the Michigan foreclosure-by-advertisement statute have been repealed and replaced with new language. However, we rely on the language in effect at the time of the proceedings at issue in this case. No. 14-1687 Garcia, et al. v. Fed. Nat’l Mortgage Ass’n., et al. Page 9 do not plead any erroneous deprivation of property through lack of notice that the Due Process Clause seeks to avoid. B. Right to a Hearing Plaintiffs’ main argument is that—despite actual notice of default and a six-month redemption period before foreclosure—due process entitles them to a judicial hearing before foreclosure. Where only property rights are involved, however, the postponement of a structured judicial hearing is not a denial of due process if there is adequate opportunity after the foreclosure for such a hearing. Phillips v. Comm’r, 283 U.S. 589, 596–97 (1931) (“Where only property rights are involved, mere postponement of the judicial enquiry is not a denial of due process, if the opportunity given for ultimate judicial determination of liability is adequate.”); see also Mitchell v. W.T. Grant Co., 416 U.S. 600, 611 (1974) (upholding Louisiana statute for seizure of personal property as satisfying due process because the state has a legitimate interest in enabling the creditor to enforce his security interest in the debtor’s property); see also Parratt v. Taylor, 451 U.S. 527, 539 (1981) (state prison inmate unsuccessfully sued prison officials alleging that the officials’ negligent loss of his mail deprived him of his property without due process of law). Although no Supreme Court case we have found addresses the right to a hearing in the foreclosure context, at least two circuit courts have held that where a borrower defaults on a mortgage where the security interest is held by the government, a hearing is not required. Vail v. Brown, 39 F.3d 208, 209 (8th Cir. 1994) (Department of Veterans Affairs was not obligated, as matter of due process, to hold a pre-deprivation hearing if it provides notice that is “sufficient to permit the [borrower] to participate in the foreclosure sale and to exercise his or her preforeclosure options.”); McCachren v. U.S. Dep’t of Agric., Farmers Home Admin., 599 F.2d 655, 657 (5th Cir. 1979) (landowners entitled to a hearing only if the matter of default is in question). In the foreclosure context, these principles do not require a preforeclosure judicial hearing because the mortgagor is given timely and adequate notice of the reasons for the default in advance of the foreclosure and an opportunity to cure any default, followed by a six-month period to redeem the property, as well as an opportunity to stop the foreclosure and set aside any resulting sale for “fraud or irregularity” in the process. The Michigan statute provides adequate No. 14-1687 Garcia, et al. v. Fed. Nat’l Mortgage Ass’n., et al. Page 10 process in both the period following notice of the default but prior to any sale of the property, and then further opportunity by giving the homeowner another six months to set aside the sale if there has been “fraud or irregularity” in the process. Kim, 825 N.W.2d at 337; Mich. Comp. Laws § 600.3240 (2012). This ability to bring an action before expiration of the statutory redemption period satisfies the requirement that there be a hearing “at a meaningful time and in a meaningful manner” before permanent deprivation of property that the homeowner does not yet own free and clear of debt due to the existence of a mortgage on the property. Plaintiffs here simply have not alleged facts that would demonstrate that they were erroneously deprived of their property years after they first defaulted on the mortgage. Plaintiffs signed a mortgage and a note that allowed for the use of summary foreclosure proceedings in the event of default. Plaintiffs do not contest that they had actual notice of the default and subsequent foreclosure. They contacted the lender several times about loan modification after the foreclosure process was initiated. They met with Bank of America’s counsel and were offered a permanent loan modification, which they did not accept. What plaintiffs here would be able to demonstrate if given a pre-foreclosure hearing is left unstated. They acknowledge defaulting on the loan. They do not dispute that they did not accept the offered loan modification. They did not redeem the property during the six-month statutory redemption period. Nor have they alleged any facts demonstrating fraud or irregularity in the process they received that prevented them from taking any of these many opportunities to keep their home. Thus, on the merits of the case, plaintiffs have not stated a Fifth or Fourteenth Amendment due process claim. For the foregoing reasons, we affirm the judgment of the district court. No. 14-1687 Garcia, et al. v. Fed. Nat’l Mortgage Ass’n., et al. Page 11 _________________ CONCURRENCE _________________ BERNICE BOUIE DONALD, Circuit Judge, concurring in the judgment. I agree with the majority’s decision to affirm the judgment of the district court. I write separately to express my view that the majority’s discussion of whether Fannie Mae’s compliance with Michigan’s foreclosure-by-advertisement procedures satisfied the Due Process Clause is unnecessary to the disposition of this case. The majority opinion declines to “wade into” a discussion of whether Fannie Mae is a state actor for purposes of the Fifth and Fourteenth Amendments. (Maj. Op. at 5.) But because state action is a prerequisite to due process claims, this is a threshold—and dispositive—issue in this case. See Waters v. City of Morristown, 242 F.3d 353, 359 (6th Cir. 2001) (noting that, in the context of due process claims, the state-action issue is “a threshold matter”); Northrip v. Fed. Nat’l Mortg. Ass’n, 527 F.2d 23, 25 (6th Cir. 1975) (“[A] predicate to finding a due process violation is a finding of state action.”). I posit that no wading is required: our recent published decisions foreclose Plaintiffs’ argument that Fannie Mae is a state actor by virtue of its conservatorship under the supervision of the Federal Housing Finance Agency (“FHFA”). In Mik v. Federal Home Loan Mortgage Corp., we held as a matter of law that Freddie Mac was not a state actor “even though the [FHFA] became Freddie Mac’s conservator in 2008.” 743 F.3d 149, 168 (6th Cir. 2014). The reasoning in Mik is clear: a necessary condition precedent to consider a once-private entity a state actor is that the government has “permanent” control over the entity. Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 399 (1995). FHFA’s conservatorship of Freddie Mac “for the purpose of reorganizing, rehabilitating, or winding up [its] affairs” is, by definition, temporary. 12 U.S.C. § 4617(a)(2). Later panels of this Court have extended Mik’s holding to Fannie Mae. See, e.g., Rubin v. Fannie Mae, 587 F. App’x 273, 274-75 (6th Cir. 2014); Bernard v. Fed. Nat’l Mortg. Ass’n, 587 F. App’x 266, 271 (6th Cir. 2014); Heibel v. Fed. Nat’l Mortg. Ass’n, 581 F. App’x 543, 544 (6th Cir. 2014) (per curiam). Thus, on the threshold issue of state action, Plaintiffs’ constitutional claims No. 14-1687 Garcia, et al. v. Fed. Nat’l Mortgage Ass’n., et al. Page 12 fail. In my view, this renders any discussion of Michigan foreclosure-by-advertisement law unnecessary. Because I agree with the district court’s Rule 12(b)(6) dismissal of Plaintiffs’ due process claims, albeit on the separate grounds discussed above, I concur in the judgment.

01-03-2023

04-07-2015

https://www.courtlistener.com/api/rest/v3/opinions/3228973/

Response of the Justices of the Supreme Court to questions propounded by the Governor of the state under Code 1923, § 10290. Questions answered. Oct. 25, 1932. To the Justices of the Supreme Court of Alabama, Montgomery, Alabama. Gentlemen: Will you please give to me, as provided by section 10290 of the Code of Alabama, your written opinion on the following important constitutional questions: The Legislature of Alabama has passed and has presented to me for action thereon as chief executive of the state of Alabama, a bill known as Senate Bill No. 197, a copy of which is hereto attached. Will you please advise whether the said bill offends section 213 of the Constitution of Alabama. Please also advise whether the said bill offends section 93 of the Constitution of Alabama. You will note that section 2 of the act provides that the $300,000, which is to be paid as a rental to the bridge corporation for the rental of the bridges, shall be used in payment of the interest and/or principal of any refunding bonds issued by the Alabama state bridge corporation, and that section 3 provides that the said lease shall continue for such length of time as the Alabama state bridge corporation may have any refunding bonds outstanding, and that said lease shall also provide that said property shall be used without the collections of tolls or charges from the public, but shall be used in connection with and as a part of the public highway system of the state of Alabama during the term of this lease. Would the provisions herein cause the state to assume the bonds and to pay the same, and would this be in violation of section 213 of the Constitution of Alabama? Please also advise whether the provision that the bridges shall be made free, and that no toll shall be collected, would have the effect of impairing the obligation of the contract which the bridge corporation, under provisions of law, made with the purchasers of the bonds; the effect of such agreement being that tolls would be collected and would be used in the payment of the interest and principal on said bonds. This act was presented to me on this day and, as you know, it is necessary that I act on it within the time provided by the Constitution. Yours very truly, B. M. Miller, Governor. *Page 461 The following is a copy of Senate Bill 197: A Bill to be Entitled An Act To provide for the leasing to the State Highway Department of the State of Alabama by the Alabama State Bridge Corporation of all of the bridges and other property now owned by the Alabama State Bridge Corporation; to provide the method and manner of execution of said lease and the future use of said property, and to make an appropriation therefor. Be it Enacted by the Legislature of Alabama: Section 1. That the State Highway Department of the State of Alabama be and is hereby authorized to rent or lease from the Alabama State Bridge Corporation all of the fifteen toll bridges and other property now owned by the Alabama State Bridge Corporation, said lease to be for an annual rental of not exceeding Three Hundred Thousand Dollars, which sum or so much thereof as is necessary is hereby appropriated for said purpose mentioned in this Act. Section 1 1/2. The Alabama State Bridge Corporation is hereby authorized to execute the lease herein provided for. Section 2. That the said sum of Three Hundred Thousand Dollars herein appropriated shall be set aside as a trust fund out of any money belonging to or heretofore or hereafter appropriated for the use and benefit of or to the State Highway Department not otherwise heretofore appropriated and shall be paid annually to the Alabama State Bridge Corporation, and shall be used by it exclusively for the payment of the interest and/or principal of any refunding bonds issued by said Alabama State Bridge Corporation as the same falls due or matures and shall be used for no other purpose. Section 3. That said lease shall provide that the State Highway Department of the State of Alabama shall at all times keep repaired and in good condition each and every bridge and/or other property so leased as a part of the public highway system of the State of Alabama without expenses to the Alabama State Bridge Corporation, and in case of a destruction of any of said property during the term of said lease the State Highway Department shall reconstruct such property as is destroyed in addition to the annual rental above provided for, and no insurance shall be required to be carried on said property. That said lease shall continue for such a length of time as the Alabama State Bridge Corporation may have any refunding bonds outstanding, and said lease shall also provide that said property shall be used without the collections of tolls or charges from the public, but shall be used in connection with and as a part of the public highway system of the State of Alabama during the term of this lease, but no provision in this Act or in said lease shall in anywise operate to impair the obligation of any contract now existing whereby the Alabama State Bridge Corporation is a party thereto. Section 3 1/2. The power given herein to lease the said bridges shall not be exercised unless and until the bonds now outstanding against said bridges shall have been refunded on a basis that the annual interest and principal amortization fund shall not exceed Three Hundred Thousand ($300,000.00) Dollars. Section 4. That this Act shall take effect immediately upon its approval by the Governor. To his Excellency, the Governor of Alabama: Replying to your inquiry of this date touching the constitutionality of Senate Bill No. 197, we submit the following: Opinion of the Justices. In effect, section 3 1/2 of the bill in question provides that its lease provisions, as well as others conditioned on such lease, shall not be effective until the present bridge bonds are refunded with new bonds whose interest and amortization or sinking fund shall not exceed the sum of $300,000 per annum appropriated by this act from the state highway funds. This removes all question of impairing the obligation of contract evidenced by the outstanding bonds. Section 93, Constitution of 1901, forbidding the state to engage in works of internal improvement, was amended by Amendment 1, Code of 1923, page 428, and again by Amendment 11, Code of 1923, page 433, so as to authorize the state to engage in the construction and maintenance of highways and highway bridges, and to make appropriations for such purpose or purposes. The appropriation of $300,000 per annum out of the highway funds of the state, under the act submitted to us, is for bridges, a part of the highway system of the state. The act is therefore not violative of section 93 of the Constitution, as amended. In Alabama State Bridge Corporation v. Smith, 217 Ala. 311,116 So. 695, this court considered the act under which the present bridge bonds were issued and are now outstanding. The act was declared not violative of section 213 of the Constitution forbidding the creation of debt. While the act declared it was not a debt of the state to the payment of which her faith and credit were pledged, the title of the act (General Acts of 1927, page 278), in cataloguing *Page 462 its purposes, contained this: "To provide for the payment of interest on said bonds by the State of Alabama," and the body of the act provided for payment of such interest from the surplus in certain named funds, "or the interest may be paid out of any funds in the Treasury as authorized by the amendment to Section 93 of the Constitution, as set out above. Such an amount of money as may be necessary to pay the interest herein provided for is hereby appropriated out of any monies in said funds not otherwise appropriated." General Acts 1927, pages 278, 281, § 1. The funds under amended section 93, mean highway funds; all highway funds raised by special excise taxes or appropriations from general funds for highway purposes. The act was upheld as not in violation of section 213, forbidding the state's becoming indebted. Pursuant to this decision the bonds were sold and the bridges built. Thus the validity of the enabling act is finally adjudicated and binding under the doctrine of stare decisis. This, of necessity, adjudicates the method and means of paying the interest on the bonds. One of these alternate means is a continuing appropriation out of the highway funds of the state so long as any of such bonds are outstanding. The present bill merely provides a continuing appropriation from the same fund of a definite sum per annum to cover interest on refunding bonds, as well as to provide an amortization fund to ultimately pay off the new bonds. As for section 213 of the Constitution, the provisions of the present act are within the principles declared, and made final as to this bridge bond obligation by our former decision. Limiting our decision to the conditions pertaining to this particular matter, we are of opinion the act submitted to us is not violative of section 213 of the Constitution. LUCIEN D. GARDNER, WM. H. THOMAS, VIRGIL BOULDIN, ARTHUR B. FOSTER, Associate Justices. I am of the opinion that the bill is a mere attempt to shift the debt of the bridge corporation to the state, and to fasten upon the state a debt forbidden by section 213 of the Constitution. Justices BROWN and KNIGHT, concur in the foregoing. JNO. C. ANDERSON, Chief Justice.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/2791678/

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued December 12, 2014 Decided April 7, 2015 No. 13-1278 MISSOURI PUBLIC SERVICE COMMISSION, PETITIONER v. FEDERAL ENERGY REGULATORY COMMISSION, RESPONDENT MOGAS PIPELINE LLC, INTERVENOR On Petition for Review of Orders of the Federal Energy Regulatory Commission Lera Shemwell argued the cause for petitioner. With her on the briefs was Stephen C. Pearson. Carol J. Banta, Attorney, Federal Energy Regulatory Commission, argued the cause for respondent. With her on the brief were David L. Morenoff, General Counsel, and Robert H. Solomon, Solicitor. Paul Korman argued the cause for intervenor. With him on the brief were Amy W. Beizer and Emily R. Pitlick. 2 Before: GARLAND, Chief Judge, and ROGERS and MILLETT, Circuit Judges. Opinion for the Court filed by Circuit Judge Rogers. Concurring opinion by Circuit Judge Millett. ROGERS, Circuit Judge: This petition follows our remand for application of the “benefits exception” to the general policy of the Federal Energy Regulatory Commission against including an acquisition premium in a pipeline’s rate base. Missouri Pub. Serv. Comm’n v. FERC (“Missouri I”), 601 F.3d 581, 588 (D.C. Cir. 2010). The Commission describes its benefits exception as allowing an acquisition premium to be included in a pipeline’s rate base when the purchase price is less than the cost of constructing comparable facilities, the facility is converted to a new use, and the transacting parties are unaffiliated. See Missouri Interstate Gas, LLC (“Remand Order”), 142 F.E.R.C. ¶ 61,195, at ¶ 113 (2013). That is consistent with the Commission’s precedent, see Longhorn Partners Pipeline, 73 F.E.R.C. ¶ 61,355, at 62,112 (1995), and with our own characterization of that precedent, see Rio Grande Pipeline Co. v. FERC, 178 F.3d 533, 536–37 (D.C. Cir. 1999). Although petitioners would distinguish past decisions on their facts, the court defers to the Commission’s interpretation of its own precedents in the challenged orders. To the extent petitioner raises a question whether the pipeline project benefits Missouri customers in the first place, the Commission permissibly relied on its 2002 Order certificating the Missouri Interstate Gas facilities for interstate use. Accordingly, we deny the petition for review. I. At issue is the acquisition premium associated with the 3 Trans-Mississippi Pipeline (“TMP”), a 5.6-mile stretch of pipeline that connects Missouri with Illinois beneath the Mississippi River. In 2002, pursuant to section 7 of the Natural Gas Act (“NGA”), 15 U.S.C. § 717f, the Commission issued Missouri Interstate Gas, LLC (which later merged to become MoGas Pipeline, LLC (“MoGas”)) a certificate of public convenience and necessity to undertake a project that included using the TMP for natural gas service for the first time. The Commission found it was in the public interest because the project would “provide Missouri customers the opportunity to diversify their gas supply options with the installation of minor pipeline facilities and a minimal impact to the environment,” Missouri Interstate Gas, LLC (“2002 Order”), 100 F.E.R.C. ¶ 61,312, at ¶ 2 (2002), and that in turn would improve reliability and supply diversity and increase competition, see id. ¶¶ 15, 17–18. On remand from this court in Missouri I, the Commission approved inclusion of the acquisition cost in MoGas’s rate base because the TMP had been devoted to a new use, transporting natural gas instead of oil, and the cost of new construction would have been greater, see Remand Order ¶¶ 95, 110, and denied rehearing, Missouri Interstate Gas, LLC (“Rehearing Order”), 144 F.E.R.C. ¶ 61,220 (2013). Petitioner does not challenge the Commission’s factual findings on remand or its determination that the TMP was converted to a new use. Instead, petitioner challenges the Commission’s determination that the pipeline company had shown that the acquisition of pipeline facilities provided specific benefits in accordance with Commission precedent. Although acknowledging that a lower acquisition cost can produce benefits to customers in some cases, petitioner contends the Commission failed to adhere to its precedent and to examine whether there were actual quantifiable dollar benefits for Missouri customers. 4 A. NGA § 7 requires that the Commission must issue a certificate of public convenience and necessity before a new interstate pipeline may begin to operate. See 15 U.S.C. § 717f(c)(1)(A); Missouri I, 601 F.3d at 583. A certificate may issue only if “the proposed service, sale, operation, construction, extension, or acquisition, to the extent authorized by the certificate, is or will be required by the present or future public convenience and necessity.” 15 U.S.C. § 717f(e). When the Commission issues a certificate of public convenience and necessity, it “sets initial rates governing the sale price of natural gas transported in the pipeline,” Missouri I, 601 F.3d at 583, and may “attach to the . . . certificate . . . such reasonable terms and conditions as the public convenience and necessity may require,” 15 U.S.C. § 717f(e). Under that authority, the Commission “employs a ‘public interest’ standard to determine the initial rates that a pipeline may charge for newly certificated service.” Mo. Pub. Serv. Comm’n v. FERC, 337 F.3d 1066, 1068 (D.C. Cir. 2003) (citing Atl. Ref. Co. v. Pub. Serv. Comm’n, 360 U.S. 378, 391 (1959)). Initial rates “offer a temporary mechanism to protect the public interest until” the Commission sets permanent rates pursuant to NGA § 4, 15 U.S.C. § 717c. Algonquin Gas Transmission Co. v. Fed. Power Comm’n, 534 F.2d 952, 956 (D.C. Cir. 1976). “Generally, when establishing the cost of service upon which a pipeline’s regulated rates are based, [the Commission] employs ‘original cost’ principles,” and “when a facility is acquired by one regulated entity from another, [only] the seller’s depreciated original cost is included in the cost-of-service computations, even though the price paid by the purchaser may exceed that amount.” Rio Grande, 178 F.3d at 536 (citing N. Natural Gas Co., 35 F.E.R.C. ¶ 61,114, at 61,236 (1986)). The cost above that amount (i.e., net-book value) is known as an acquisition adjustment or premium and is disallowed, unless the 5 “benefits exception” applies. The general policy, as described by the Federal Power Commission, was designed to prevent facilities from being sold at artificially inflated prices in order to increase rates, see United Gas Pipe Line Co., 25 F.P.C. 26, at 64 (1961), and since then has been described as designed to protect customers from paying twice for depreciation, see, e.g., Cities Serv. Gas Co., 4 F.E.R.C. ¶ 61,268, at 61,596 (1978). The Commission has established a two-part benefits exception test, whereby a pipeline facility that has been converted from one public use to another or placed in jurisdictional service for the first time may include an acquisition premium in its rate base if the pipeline can show by clear and convincing evidence that its acquisition of the facilities will provide “substantial, quantifiable benefits to ratepayers.” Longhorn, 73 F.E.R.C. at 62,112. One way these benefits can be shown is by demonstrating that the proposed conversion would “result in utilization of a currently-underutilized facility, which could not be replicated for the price that [the pipeline was] willing to pay.” Id. at 62,113. The new-use requirement is consistent with the Commission’s general policy of exclusion of acquisition premiums because customers will not be burdened twice for the cost of depreciating facilities. See Cities, 4 F.E.R.C. at 61,596; see also Longhorn, 73 F.E.R.C. at 62,113; Natural Gas Pipeline Co. of Am., 29 F.E.R.C. ¶ 61,073, at 61,150 (1984). B. The background to the instant petition is set forth in Missouri I, 601 F.3d at 583–85. On remand from this court, an administrative law judge (“ALJ”) ruled, after an evidentiary hearing, that the TMP’s acquisition cost could not be included in MoGas’s rate base. Although finding the pipeline’s net-book value was zero and thus the entire $10,088,925 purchase price constituted an acquisition premium, and the pipeline was being 6 put to a new use, transporting natural gas rather than oil, the ALJ concluded that the second prong of the benefits exception test was not satisfied because the pipeline had “not met its burden to prove that the cost to construct the TMP is considerably higher than the pipeline’s purchase price.” Missouri Interstate Gas, LLC (“ALJ Remand”), 137 F.E.R.C. ¶ 63,014, at ¶ 320 (2011). The Commission reversed in part, finding the first prong of the benefits exception test had not been challenged and that the ALJ erred in concluding that the second prong was not satisfied, because “the record demonstrates that the acquisition of these facilities at more than their net book value results in substantial benefits to ratepayers.” Remand Order ¶ 2. The ALJ erred in requiring the difference between purchase price and construction cost to be “exorbitant,” ALJ Remand ¶ 313, the Commission explained, because nothing in Crossroads, 71 F.E.R.C. ¶ 61,076, on which the ALJ relied, supported such a prerequisite and instead only required that the benefits must be “commensurate with the acquisition costs that exceed the depreciated original costs.” Remand Order ¶ 111 (quoting Crossroads, 71 F.E.R.C. at 61,262) (internal quotation marks omitted). The ALJ’s reliance on KN Wattenberg Transmission Limited Liability Co., 85 F.E.R.C. ¶ 61,204 (1998), was also misplaced because that decision relied upon factors not present here, namely that the buyer and seller were affiliates and ratepayers had already paid for depreciation of the facility. Remand Order ¶ 112. To clarify, the Commission stated: “In conversion cases involving non-affiliates, the Commission has consistently allowed the full purchase price in [a] rate base when the record supports a finding that the purchase price is less than the cost to construct comparable facilities.” Id. ¶ 113. It cited its decisions in Crossroads, 71 F.E.R.C. at 61,262–63; Natural, 29 F.E.R.C. at 61,150; and Cities, 4 F.E.R.C. at 61,596. The Commission elaborated on its rationale: “Allowing the full purchase price . . . 7 in rate base in these circumstances provides specific benefits to . . . ratepayers because the approved recourse rates will be no higher, if not somewhat lower, than if the pipeline built new facilities.” Remand Order ¶ 113. Further, the Commission noted,“[t]his ruling also provides jurisdictional companies appropriate incentives to purchase and utilize existing facilities in lieu of constructing new facilities, thereby avoiding unnecessary construction and the attendant environmental impacts.” Id. Having found that the second prong of the benefits exception test was satisfied, the Commission stated it had no need to consider additional specific dollar benefits identified by MoGas once the TMP offered service, such as “demand charge credits to shippers, access to flexible point rights, and lower initial rates.” Id. ¶ 114. On rehearing, the Commission again rejected arguments that its benefits exception “requires a finding of specific benefits in addition to a finding that the costs of acquiring the existing pipeline is less than cost of constructing comparable facilities” and that it “can only make a finding of specific benefits if the pipeline’s rate proposal is supported, or at least not opposed, by customers.” See Rehearing Order ¶¶ 48, 50. The Commission found no support for this requirement in Cities, Natural, or Crossroads, and, in light of its own precedent, did not interpret the description of the benefits exception in Missouri I, 601 F.3d at 586, to require separate findings of both “‘specific dollar benefits resulting directly from the sale’” and a purchase price lower than the cost of new construction. Rehearing Order ¶ 48 (quoting Missouri I, 601 F.3d at 586). Furthermore, the Commission noted that because the decision to issue a certificate of public convenience and necessity to place the TMP facilities into interstate service “already addressed the initial question as to whether there are benefits to including the cost of the TMP facilities in initial rates,” on remand it “appropriately applied the Longhorn test to determine the exact level of costs of the TMP 8 facilities to include in rates by evaluating whether it would cost more to construct new comparable facilities.” Id. ¶ 49. Additionally, in view of its “independent obligation under [NGA § 7, 15 U.S.C. § 717f(e)] to ensure that initial rates are in the public interest,” id. ¶ 50, the Commission explained that “[p]ermitting a single customer the right to veto the inclusion of an acquisition . . . premium in rates, regardless of the pipeline’s showing of specific benefits, is at odds with this statutory requirement.” Id. So, disregarding the testimony of Ameren, a MoGas customer, challenging MoGas’s claims of additional specific dollar benefits was not inappropriate because the difference in acquisition and construction costs satisfied the second prong of the benefits exception test and there was no need to consider other possible benefits. See id. ¶ 54. The Commission further concluded that the attempt to distinguish its precedents on other grounds was unpersuasive for the following reasons: The fact that there were existing customers on the merged pipeline, unlike in Crossroads, did not make inapposite its decision in Crossroads that specific benefits had been shown because the Commission had addressed customers’ subsidization concerns in designing MoGas’s initial rates. Id. ¶ 51. Likewise, it was a misreading of Natural to suggest the pipeline proposed to provide service on newly acquired facilities for free; in that case, “the costs of the facilities, including the acquisition adjustment, were borne by the new shippers” taking service. Id. ¶ 52. So too, United Gas and Kansas Pipeline were not at odds with the Commission’s decision on the TMP acquisition premium because the denials of rate base treatment for acquisition adjustments in those cases were based on different records. See id. ¶ 53. In Kansas Pipeline Co., 81 F.E.R.C. ¶ 61,005 (1997), the State’s inclusion of the acquisition premiums in state-regulated rates was insufficient to demonstrate specific dollar benefits resulting from the sale. In United Gas, “there was no showing that any 9 rate reductions had any relationship to the payment of amounts in excess of the original cost.” Rehearing Order ¶ 53. By contrast, the Commission observed, MoGas had demonstrated specific dollar benefits because the purchase price of the TMP facilities was less than the cost of constructing comparable facilities. See id. It further observed, upon acknowledging its statement in Enbridge Pipelines (KPC), 109 F.E.R.C. ¶ 61,042 (2004), that proving substantial benefits under Longhorn is a heavy burden, that case did not involve a pipeline converted to a new use and that its precedents such as Cities, Natural, and Crossroads showed that its strong policy against inclusion of acquisition adjustments in rate base “‘is not inflexible.’” Rehearing Order ¶ 57 (quoting Cities, 4 F.E.R.C. at 61,596). II. Petitioner challenges the Remand and Rehearing Orders on two grounds. First, it contends that, under Commission precedent, “whether the purchaser has demonstrated specific dollar benefits resulting directly from the sale” cannot be satisfied simply by demonstrating that “the purchase price of the asset at issue is less than the cost of constructing a comparable facility.” Petr.’s Br. 18 (internal quotation marks omitted). Second, it contends the Commission was required to examine whether there were actual benefits to consumers beyond the lower purchase price and it failed to do so, in part by failing to address whether consumers opposed the acquisition. The court reviews the Commission’s decisions under the deferential arbitrary and capricious standard of the Administrative Procedure Act, and its role “is limited to assuring that the Commission’s decisionmaking is reasoned, principled, and based upon the record.” Rio Grande, 178 F.3d at 541 (internal quotation marks omitted). When ratemaking is involved, the court is “particularly deferential to the 10 Commission’s expertise.” Midwest ISO Transmission Owners v. FERC, 373 F.3d 1361, 1368 (D.C. Cir. 2004) (internal quotation marks omitted). Further, deference is due to the Commission’s interpretation of its own precedent. See Columbia Gas Transmission Corp. v. FERC, 477 F.3d 739, 743 (D.C. Cir. 2007). The court, however, “must reverse a decision that departs from established precedent without a reasoned explanation.” Exxon Mobil Corp. v. FERC, 315 F.3d 306, 309 (D.C. Cir. 2003) (citing ANR Pipeline Co. v. FERC, 71 F.3d 897, 901 (D.C. Cir. 1995)). We find no basis to do so here. A. Commission precedent amply supports the challenged orders. The precedent cited by the Commission allows inclusion of an acquisition premium in a pipeline’s rate base under the benefits exception where there has been arms-length bargaining so long as there is a new use and the cost of acquisition is less than the cost of construction. Following an evidentiary hearing on remand, the Commission found that applying the benefits exception to the TMP project ensured that “the approved recourse rates will be no higher, if not somewhat lower, than if the pipeline built new facilities.” Remand Order ¶ 113. This was because the acquisition cost was $1.4 million less than new construction. Id. Counsel for the Commission noted that if there is a finding that the public convenience and necessity requires that a new pipeline is being put into service one way or another, then the question is whether it will come into existence through new-use acquisition or new construction, and whichever course of action is selected, the cost will be passed along to ratepayers. See Oral Arg. Rec. 40:18-40:22; 21:50-22:36 (Dec. 12, 2014). The choice of a lesser acquisition cost benefits consumers, cf. Enbridge Energy Co., Inc., 110 F.E.R.C. ¶ 61,211, at 61,796 (2005), and the cost difference with new construction costs quantifies the benefits. 11 In Cities, 4 F.E.R.C. ¶ 61,268, the Commission had determined that “the public convenience and necessity requires Cities Service’s pipeline,” id. at 61,595, and permitted inclusion of the full purchase price of a new pipeline in the rate base, id. at 61,596, explaining that although it “generally has a strong policy against” including acquisition premiums in rate base, “that policy is not inflexible,” id. “Where the transfer at a price above book value benefits consumers, it is sometimes appropriate to permit the entire purchase price to go into the rate base.” Id. There, the depreciated book value was approximately $3 million, while the purchase price was $18.5 million, and construction of a new pipeline would have cost over $40 million. Id. The Commission noted that it was “also significant that the pipeline ha[d] not been devoted to gas utility service” and thus “gas consumers w[ould] not be burdened twice for the costs of depreciating the facilities.” Id. The Commission’s analysis was limited to those two factors: new use and a purchase price less than the cost of new construction. A differential similar to that in the instant case sufficed in Natural, 29 F.E.R.C. ¶ 61,073, where the acquisition cost was $1 million lower than new construction costs. The Commission had found in Natural the pipeline would be in the public interest and thereafter allowed the acquisition premium attributable to the interstate portion of the new pipeline — $20 million, which was greater than the $6 million depreciated original cost, but less than the $21 million estimated cost of constructing a comparable pipeline — to be included in the rate base. Id. at 61,150. The Commission noted that costs associated with the purchased pipeline would be borne only by customers who chose to use the new segment. It further explained that “gas customers would not be burdened twice for the cost of depreciating the facilities since the facilities had not previously been devoted to gas utility service.” Id. (citing Cities, 4 F.E.R.C. ¶ 61,268). 12 In Crossroads, 71 F.E.R.C. ¶ 61,076, too, the Commission had found the pipeline, which was being put to a new use by providing natural gas in Indiana and Ohio instead of oil, was “required by the public convenience and necessity,” id. at 61,261, and so allowed the $16 million acquisition cost to be included in the initial rate base of the pipeline. The $16 million acquisition cost and associated costs of $6.4 million for conversion and extension were “considerably less than the costs associated with constructing a new 201-mile, 20-inch diameter pipeline.” Id. at 61,262. Hence, the Commission determined that “ratepayers will receive commensurate benefits from the acquisition of the oil pipeline.” Id. Other precedent cited by the Commission on brief is to the same effect, indicating that the cost differential itself provides a commensurate benefit that is sufficient to satisfy the second prong of the benefits exception test. For example, in Longhorn, the Commission had concluded that the second prong of the test was met because “[t]he conversion will result in utilization of a currently-underutilized facility, which could not be replicated for the price that [the buyer] is willing to pay.” 73 F.E.R.C. at 62,113. As it also noted in Cities and Natural, the Commission observed that “shippers who have paid for the crude oil line . . . are quite different from those shippers who would be charged for the use of the converted [natural gas] line.” Id. Likewise, in KN Interstate Gas Transmission Co., 79 F.E.R.C. ¶ 61,268, at 62,151 (1997), the Commission explained the second prong of the benefits exception test required only that “rate payers will realize benefits commensurate with the acquisition costs that exceed the depreciated original costs.” There, the “estimated cost of $159.2 million to complete the . . . project [wa]s considerably below the estimated $320 million cost to construct a comparable new pipeline.” Id. To the extent petitioner attempts to distinguish the cases 13 cited by the Commission in the challenged orders on the grounds that the pipelines’ rates in Crossroads, Cities, and Natural were either negotiated or unopposed, or both, and so there must have been benefits for customers, see Petr.’s Br. 33–38, the Commission responded, correctly: “There is no language in the Commission orders in [those decisions] that suggests that customer support or a lack of customer opposition was an essential factor in the Commission’s findings in those proceedings,” Rehearing Order ¶ 50. The Commission pointed out that relying on non-opposition, as petitioner suggested, would have been “at odds with” its “independent obligation . . . to ensure that initial rates are in the public interest.” Id.; see also Mo. Pub. Serv. Comm’n, 337 F.3d at 1076. Moreover, evidence of Missouri customer opposition was considered in the 2002 Order, and, the Commission noted, that order was never challenged. Rehearing Order ¶¶ 49, 54. Petitioner’s reliance on United Gas, 25 F.P.C. 26, as requiring that a pipeline must show benefits to consumers beyond a construction-acquisition cost differential, is misplaced. In observing that acquisition costs “may or they may not be includible in the rate base, depending on whether it can be established . . . that consumer benefits flowed to the rate payers to the extent of the” premium, 25 F.P.C. at 50, the Federal Power Commission referred to rate reductions as one example of such benefits. Building on United Gas, Commission precedent has since explained why the requisite showing of customer benefits can be satisfied with evidence of an acquisition cost being lower than that of new construction. See, e.g., Longhorn, 73 F.E.R.C. at 62,112–13. As discussed, because the ratepayers for a project that has received a certificate of public convenience and necessity will pay rates based on the rate base associated either with the costs of acquisition or costs of new construction, acquiring a pipeline segment at a price cheaper than the cost of constructing a 14 comparable alternative can reasonably be expected to lead to benefits in the form of rate reductions. Other Commission decisions describing the benefits exception that are relied on by petitioner indicate no change in the Commission’s approach. See, e.g., Enbridge Pipelines (Southern Lights) LLC, 121 F.E.R.C. ¶ 61,310 (2007); Enbridge Energy, 110 F.E.R.C. ¶ 61,211; Questar S. Trails Pipeline Co., 89 F.E.R.C. ¶ 61,050 (1999). Petitioner maintains, however, that there are instances where the Commission has identified benefits beyond a cost differential (e.g., offering access to a new or under-utilized supply), or highlighted factual circumstances not present in the instant case (such as a pipeline’s reliance on a negotiated rate instead of a cost of service rate), or relied upon benefits that the Commission did not mention. See Petr.’s Br. 21, 25–31. As to types of benefits, the court in Missouri I, 601 F.3d at 586, listed four elements it found in Commission decisions. Quoting Kansas Pipeline for the proposition that one factor is “whether ‘the purchaser has demonstrated specific dollar benefits resulting directly from the sale,’” Missouri I, 601 F.3d at 586 (quoting Kansas Pipeline, 81 F.E.R.C. at 61,018), the court characterized this as the “key” element, id. at 588. In petitioner’s view, the challenged orders are inconsistent with the court’s statement of the test. But nothing the court said purported to change the test adopted by the Commission. The issue before the court in Missouri I was whether the Commission improperly included the alleged acquisition premium in MoGas’s initial rates while deferring resolution of the issue to a future NGA § 4 rate proceeding. See id. at 585. Concluding that it had, the court noted that the Commission “did not directly evaluate the . . . premium according to any of the elements of the benefits exception test,” id. at 586 (emphasis added), vacated the Commission’s order with respect to the alleged acquisitions premium issue, and remanded that issue to 15 the Commission for resolution, see id. at 588. The court thus had no occasion to consider the evidentiary content of the second prong of the Longhorn test. Previously, in Rio Grande, 178 F.3d at 542, where the Commission had adopted a per se prohibition when the seller acquires an equity position in the purchaser that the court concluded was unsupportable, the court noted because it was clear Rio Grande had put the pipeline to a new use, see id., a remand was called for to allow the Commission to address the second prong, see id. at 543; nothing in Missouri I purported to question that understanding of the Commission’s test. The Commission’s analysis of its precedent in the challenged orders, to which we defer, refutes petitioner’s suggestion that the Commission has departed from the Longhorn test and the determination that evidence of a difference between acquisition and construction costs generally may suffice to satisfy the second prong of the test. Other Commission decisions relied upon by petitioner to show the Commission has departed from its precedent are inapposite. For instance, in Enbridge Pipelines (KPC), 102 F.E.R.C. ¶ 61,310, at 62,022–23 (2003), and KN Wattenberg, 85 F.E.R.C. at 61,853–54, no new pipeline use was involved. See Remand Order ¶ 112. B. Petitioner also contends that a cost differential cannot suffice under the second prong of the benefits exception test absent a determination that the consumers being served will actually benefit. See Petr.’s Br. 38. Even assuming, as petitioner maintains, that the Commission was required to identify benefits for consumers from the TMP project other than a cost of acquisition lower than the hypothetical cost of construction, the Commission did so, appropriately relying in part on benefits that it had identified in 2002 when it certified the TMP project pursuant to NGA § 7. 16 Again, the clearest benefit resulting from the lower acquisition cost of the TMP project is the likelihood that it will lower costs passed along to ratepayers in using a pipeline whose construction the Commission determined was required by the public convenience and necessity. See Remand Order ¶ 113. In addition, the Commission noted its findings in the 2002 Order that the TMP project would benefit customers by promoting reliability through providing new sources of supply and fostering competition. See Rehearing Order ¶ 49 & n.86. For instance, the Commission found that certain parts of Missouri had limited access to certain supply areas and the TMP project would increase competition and offer new sources of gas supply and transportation to Missouri consumers served by the interstate pipeline that would interconnect with the TMP. See id. (citing 2002 Order ¶ 18). Contrary to the implication of petitioner’s argument, then, this is not a case in which the Commission certified the TMP project based principally on out- of-state benefits and approved an acquisition premium in the pipeline’s rate base to be paid by non-beneficiary in-state ratepayers; the court consequently has no occasion to consider how a petition in those circumstances would be resolved. Petitioner’s critique that the benefits exception test lacks teeth because “the estimate [of construction cost] is a hypothetical alternative” that “will never be put to the test,” Petr.’s Br. 52, is belied by the record. Petitioner challenged the hypothetical construction cost, prompting the ALJ to reduce it by $2.4 million, see ALJ Remand ¶ 314; Remand Order ¶ 110; Rehearing Order ¶ 55. Intervenor notes, moreover, that petitioner also had the opportunity to present other challenges to the pipeline’s evidence, such as cross-examining MoGas’s expert, but did not. See Intervenor MoGas Pipeline LLC Br. 28–29. Finally, in its reply brief petitioner suggests that when 17 determining whether an acquisition premium can be included in a pipeline’s rate base, the Commission ought not be permitted to rely on the findings made when certifying the project pursuant to NGA § 7, lest the two questions collapse into one. See Reply Br. 18–19. Even assuming this argument is properly before the court, see Holland v. Bibeau Const. Co., 774 F.3d 8, 14 (D.C. Cir. 2014), nothing in this court’s remand order in Missouri I so limited the Commission, and the record in the instant case shows that the fact some benefits may be analogous does not render the two determinations legally indistinguishable. Of course, insofar as petitioner seeks to suggest there was no benefit to Missouri consumers from the TMP project in the first place, that challenge would be an impermissible collateral attack on the 2002 Order. See Pac. Gas & Elec. Co. v. FERC, 533 F.3d 820, 824–25 (D.C. Cir. 2008). Accordingly, we deny the petition for review. MILLETT, Circuit Judge, concurring: In my view, the Commission’s decision barely ekes past our deferential review. The near-fatal flaw is that the Commission persists in a bafflegab articulation of its rule for including acquisition premiums in rates. On the one hand, the Commission has said repeatedly that the prohibition on the inclusion of acquisition premiums in rates is broad and emphatic, with the benefits exception being narrow and sparingly applied. To walk that narrow path, a pipeline must “show[] by clear and convincing evidence that the acquisition results in substantial benefits to ratepayers.” Longhorn Partners Pipeline, 82 FERC ¶ 61,146, 61,542 (1998); see also, e.g., Public Service Co. of New Mexico, 142 FERC ¶ 61,168 P 25 (2013) (requiring “tangible and nonspeculative” “specific dollar benefits” that “are clearly related [to] and solely the result of the acquisitions”) (internal quotation marks omitted); Missouri Pub. Service Comm’n v. FERC, 601 F.3d 581, 586 (D.C. Cir. 2010) (“‘heavy’ burden” to show “benefits to consumers that are ‘tangible, non-speculative, and quantifiable in monetary terms’”) (quoting Kansas Pipeline Co., 81 FERC ¶ 61,005, 61,018 (1997)). On the other hand, aspects of the Commission’s decision in this and some past cases seem to welcome automatically the inclusion of acquisition premiums in rates any time the pipeline shows that “(1) the acquired facility is being put to new use, and (2) the purchase price is less than the cost of constructing a comparable facility.” Enbridge Pipelines (S. Lights) LLC, 121 FERC ¶ 61,310 P 38 (2007) (quoting Rio Grande Pipeline Co. v. FERC, 178 F.3d 533, 536-537 (D.C. Cir. 1999)). Beyond any findings underlying a certificate of public convenience and necessity, the Commission seems to indicate that no showing of actual desire or demand by customers for the refurbished service need be made, or even that a new pipeline would actually have been built. 2 Whither that prior insistence on clear and convincing evidence of actual, substantial and direct benefits to ratepayers? Here the Commission says the benefit is that the rates “will be no higher, if not somewhat lower, than if the pipeline built new facilities.” Missouri Interstate Gas, LLC (“Remand Order”), 142 FERC ¶ 61,195 P 113 (2013). That is not the same as an actual, substantial benefit at all. And if that articulation actually captured the Commission’s position, what began as a clear requirement that a substantial affirmative benefit be shown would have transmogrified into a “no harm, no foul” rule, without an explanatory word being uttered by the Commission. Also seemingly overlooked by the Commission is the simple proposition that cheaper is not always better. In this case, the ratepayers got a refurbished, 50-year-old pipeline paired with the feeble assurance that the cost to them will be “no higher” than it would be for a brand new pipeline. But not many people would embrace as a “substantial benefit” a recycled, 50-year-old hand-me-down for which they were charged the same price as (or “no higher” than) brand new. What saves the Commission is that, as the court’s opinion notes, see Slip Op. at 10, 15-16, a careful reading of the agency decision shows some actual benefit to ratepayers. While the Commission did not repeat its analysis in detail here, it did expressly rely on its earlier findings in issuing a certificate of public convenience and necessity that the proposed service would provide a number of benefits specifically to Missouri customers. Those benefits include improving the reliability and diversity of natural gas supply in the State and increasing competition. See Missouri Interstate Gas, LLC (“Rehearing Order”), 144 FERC ¶ 61,220 P 49 & 3 n.86 (2013); Missouri Interstate Gas, LLC, 100 FERC ¶ 61,312 PP 14–18 (2002). Importantly, petitioner never sought review of those prior findings, so both petitioner and this court are bound by them. In addition, the record (just barely) documents the connection the Commission made between the avoided construction costs and anticipated lower rates for pipeline customers. See Wisconsin Pub. Power, Inc. v. FERC, 493 F.3d 239, 273 (D.C. Cir. 2007) (“Although FERC’s wording may have been less than precise on this point, the agency’s path may reasonably be discerned[.]”). As the Commission noted on rehearing, that cost differential will translate into a rate base that is lower than it would have been had a comparable pipeline been constructed, and it is that rate base that will serve as the foundation for the rates charged. Rehearing Order at P 55 n.93 (2013). 1 To the extent there could be any question regarding the directness with which that reduction in the rate base would translate into lower prices for shippers, it would stem from distinct subsidization concerns that could arise if the Commission permitted the pipeline to charge customers a rate not linked directly to use of the new segment without measures in place to mitigate this risk. That scenario would distinguish this case from Natural Gas Pipeline Co. of America, 29 FERC ¶ 61,073 (1984), where the Commission 1 While the Commission’s precedent requires that the substantial benefit be established by “clear and convincing evidence,” this court’s review remains deferential. Because the Commission correctly identified the applicable “clear and convincing” standard, see Rehearing Order at P 35; Remand Order at P 44, this court reviews any findings of fact made pursuant to that standard only for substantial evidence. See Sea Island Broadcasting Corp. of South Carolina v. FCC, 627 F.2d 240, 244 (D.C. Cir. 1980). 4 specifically noted that charging rates for a newly acquired pipeline segment on an incremental basis ensured that the company, and not its customers, “b[ore] the risk of project failure or insufficient throughput.” See id. at 61,151. Here, however, the Commission addressed concerns regarding potential subsidization specifically in its 2007 rehearing decision approving the merger that created MoGas Pipeline, LLC. See Missouri Interstate Gas, LLC, 122 FERC ¶ 61,136 PP 67–75 (2007). No meaningful challenge to the rate design aspect of the Commission’s decision or its implications for the benefits exception has been pressed here. As a result, the court’s opinion decides only that permitting the inclusion of an acquisition premium in the rates on this record in a Section 7 proceeding, 15 U.S.C. § 717f, was a tolerable application of the Commission’s benefits exception. This decision says nothing about whether a future premium would or would not be sustainable if the subsidization argument were pressed and the measures the Commission took to address that risk were found wanting. Nor do we address whether future rates can be challenged on that ground in a Section 4 rate-setting proceeding, 15 U.S.C. § 717c. More fundamentally, nothing in our decision today should be held as authorizing the Commission, going forward, to approve the inclusion of acquisition premiums based solely on a determination that rates for the refurbished pipeline will be “no worse than” if a new, modern pipeline had been built. If the Commission wishes to spell the demise of the strict actual-benefits test of past precedent and replace it with a wooden “new use plus marginally cheaper than new” rule, it must be up front about what it is doing and grapple directly with the question whether the statutory and regulatory 5 framework and past precedent permit such a regulatory metamorphosis.

01-03-2023

04-07-2015

https://www.courtlistener.com/api/rest/v3/opinions/996391/

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 96-7083 ANDRE SYLVESTER WATTS, Defendant-Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Albert V. Bryan, Jr., Senior District Judge. (CR-87-13-A, CA-96-784-AM) Submitted: September 8, 1998 Decided: September 23, 1998 Before MURNAGHAN and NIEMEYER, Circuit Judges, and BUTZNER, Senior Circuit Judge. _________________________________________________________________ Vacated and remanded by unpublished per curiam opinion. _________________________________________________________________ COUNSEL Andre Sylvester Watts, Appellant Pro Se. Ellyn Marcus Lindsay, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Vir- ginia, for Appellee. _________________________________________________________________ Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). OPINION PER CURIAM: Appellant appeals from a district court order that concluded his motion filed under 28 U.S.C.A. § 2255 (West 1994 & Supp. 1998) was barred by the one-year limitations period of 28 U.S.C.A. § 2255 (West Supp. 1998). Appellant's conviction became final in 1988, and he filed his habeas motion on May 31, 1996. Appellant had until April 23, 1997 to file his § 2255 motion. See Brown v. Angelone, ___ F.3d ___, 1998 WL 389030 (4th Cir. July 14, 1998) (Nos. 96-7173, 96- 7208) (decided after the district court's order). Therefore, his motion was not time barred. For these reasons, we grant a certificate of appealability on this issue, vacate the district court's order, and remand for further proceedings. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. VACATED AND REMANDED 2

01-03-2023

07-04-2013

https://www.courtlistener.com/api/rest/v3/opinions/3059217/

[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ FILED U.S. COURT OF APPEALS No. 10-15923 ELEVENTH CIRCUIT Non-Argument Calendar OCTOBER 17, 2011 ________________________ JOHN LEY CLERK Agency No. A079-417-097 ALI HASSAN JASEM, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals ________________________ (October 17, 2011) Before EDMONDSON, MARTIN, and KRAVITCH, Circuit Judges. PER CURIAM: Ali Hassan Jasem, a Shi’a Muslim and a native and citizen of Iraq, petitions for review of the Board of Immigration Appeals’s (“BIA”) denial of his second motion to reopen removal proceedings on the basis of changed country conditions in Iraq. On appeal, Jasem argues that the BIA erred in concluding that there were insufficient changed country conditions in Iraq by ignoring evidence of increased violence along with a simultaneous decrease in security. We review the denial of a motion to reopen an immigration petition for an abuse of discretion. Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th Cir. 2009). Our review “is limited to determining whether the BIA exercised its discretion in an arbitrary or capricious manner.” Id. An alien may file one motion to reopen removal proceedings and generally must file the motion within ninety days of the date of the BIA’s final administrative removal order. 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). However, these time and numerical limitations do not apply where (1) the motion seeks asylum, withholding of removal, or CAT relief; (2) the motion is based on changed country conditions; and (3) the evidence of changed conditions is material and “was not available and would not have been discovered or presented at the previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see 8 C.F.R. §§ 1003.2(c)(3)(ii) and 1003.23(b)(4)(i); Jiang, 568 F.3d at 1256. Proving that evidence is material is a “heavy burden” because an alien seeking to reopen removal proceedings on the basis of changed country conditions must demonstrate 2 “that, if the proceedings were opened, the new evidence would likely change the result in the case.” Jiang, 568 F.3d at 1256-57. To establish eligibility for asylum or withholding of removal, “an applicant must establish that [he] has a well-founded fear that [he] will be persecuted if removed to [his] home country on account of race, religion, nationality, membership in a particular social group, or political opinion.” Li v. U.S. Att’y Gen., 488 F.3d 1371, 1374 (11th Cir. 2007); 8 U.S.C. §§ 1101(a)(42), 1158(b)(1), and 1231(b)(3). To qualify for CAT relief, an applicant must demonstrate that it is “more likely than not” that he will be tortured upon his return to the proposed country of removal. 8 C.F.R. § 208.16(c)(2). We have stated that private acts of violence, general criminal activity, and purely personal retribution do not qualify as persecution based on a statutorily protected ground. See Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1258 (11th Cir. 2006); Sanchez v. U.S. Att’y Gen., 392 F.3d 434, 438 (11th Cir. 2004). Moreover, we have held that noncriminal informants do not constitute a particular social group under the INA. Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190, 1197-98 (11th Cir. 2006). Nor does asylum eligibility extend “to anyone who fears the general danger that inevitably accompanies political ferment and factional strife.” Mazariegos v. U.S. Att’y Gen., 241 F.3d 1320, 1328 (11th Cir. 2001) (quotation marks omitted). 3 Upon review of the record and consideration of the parties’ briefs, we find that the BIA did not abuse its discretion in denying Jasem’s second motion to reopen. First, because the BIA adequately reviewed Jasem’s motion and the evidence of changed country conditions that he filed in support, the BIA did not act arbitrarily or capriciously. See Jiang, 568 F.3d at 1258. Second, Jasem’s second motion to reopen was untimely and number-barred, because it was filed four years after the BIA’s final order of removal but did not demonstrate changed country conditions in Iraq that were material and could not have been discovered at the time of the removal proceedings. See id. at 1256. Rather, while Jasem’s evidence showed ongoing general violence stemming from the government’s transition, he did not demonstrate increased violence specifically directed at individuals similar to him. See Mazariegos, 241 F.3d at 1328 (“the INA does not extend eligibility for asylum to anyone who fears the general danger that inevitably accompanies political ferment and factional strife.” (quotation marks omitted)).1 As such, he failed to demonstrate that the “new evidence would likely 1 To be sure, Jasem testified that an alien smuggler asserted a personal vendetta that constitutes a direct and targeted threat. However, purely personal retribution and private acts of violence do not qualify as persecution based on a statutorily protected ground, and, even as a noncriminal informant for the United States, Jasem would not fall within a particular social group. See Ruiz, 440 F.3d at 1258; Sanchez, 392 F.3d at 438. 4 change the result in his case,” Jiang, 568 F.3d at 1257, and consequently the agency did not abuse its discretion in this denying relief. PETITION DENIED. 5

01-03-2023

10-14-2015

https://www.courtlistener.com/api/rest/v3/opinions/3059224/

[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 11-10648 OCTOBER 17, 2011 JOHN LEY Non-Argument Calendar CLERK ________________________ D.C. Docket No. 1:10-cr-20569-DMM-1 UNITED STATES OF AMERICA, lllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee, versus ANTONIO ROBINSON, llllllllllllllllllllllllllllllllllllllll Defendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (October 17, 2011) Before EDMONDSON, WILSON and KRAVITCH, Circuit Judges. PER CURIAM: Antonio Robinson appeals his convictions and sentences for being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), and possession with intent to distribute a controlled substance, 21 U.S.C. § 841(a)(1). On appeal, Robinson challenges his firearm conviction on the ground that 18 U.S.C. § 922(g) exceeds Congress’s Commerce Clause power, since the statute does not limit the definition of “commerce” to interstate or foreign commerce and does not require the defendant’s possession of a firearm to “substantially” affect interstate commerce.1 Robinson also contends that his 180-month sentence violated his Fifth and Sixth Amendment rights because the prior convictions used to apply the armed career criminal enhancement were neither alleged in the indictment nor proven beyond a reasonable doubt to the jury.2 As Robinson acknowledges in his brief, both of his arguments are foreclosed by the law of the Supreme Court and this Circuit. “[O]nly the Supreme Court or this Court sitting en banc can judicially overrule a prior panel decision.” United States v. Marte, 356 F.3d 1336, 1344 (11th Cir. 2004). First, we have repeatedly held that § 922(g)(1) is not a facially unconstitutional exercise of 1 Because Robinson never raised this issue below, we review for plain error. United States v. Peters, 403 F.3d 1263, 1270 (11th Cir. 2005). 2 “We review constitutional sentencing issues de novo.” United States v. Steed, 548 F.3d 961, 978 (11th Cir. 2008) (per curiam). 2 Congress’s Commerce Clause power. See, e.g., United States v. Jordan, 635 F.3d 1181, 1189 (11th Cir. 2011); United States v. McAllister, 77 F.3d 387, 389–90 (11th Cir. 1996) (rejecting an argument that § 922(g) exceeds Congress’s Commerce Clause power because it does not require a substantial effect on interstate commerce). Robinson’s as-applied challenge to § 922(g)(1) is also unavailing because the government introduced sufficient evidence to prove that the firearm had previously traveled in interstate commerce. Robinson’s second argument is also foreclosed by precedent, as the Supreme Court has held that a prior conviction is not a fact that must be alleged in the indictment or found by a jury beyond a reasonable doubt in order to enhance a defendant’s sentence. Almendarez-Torres v. United States, 523 U.S. 224, 226–27, 235 (1998). Moreover, we have applied that holding to sentences enhanced pursuant to § 924(e). See, e.g., United States v. Marseille, 377 F.3d 1249, 1253, 1257–58 (11th Cir. 2004) (refusing to extend Apprendi v. New Jersey, 530 U.S. 466 (2000), to overrule Almendarez-Torres). Accordingly, we affirm. AFFIRMED. 3

01-03-2023

10-14-2015

https://www.courtlistener.com/api/rest/v3/opinions/3059247/

[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ FILED U.S. COURT OF APPEALS No. 11-12327 ELEVENTH CIRCUIT OCTOBER 14, 2011 Non-Argument Calendar JOHN LEY ________________________ CLERK D.C. Docket No. 8:10-cv-00394-JSM-EAJ C&M INVESTMENT GROUP, LTD., KARLIN HOLDINGS LIMITED PARTNERSHIP, llllllllllllllllllllllllllllllllllllllll Plaintiffs - Appellees, versus NEIL DAVID CAMPBELL, JULIE CAMPBELL, llllllllllllllllllllllllllllllllllllllll Defendants - Appellants. ________________________ Appeal from the United States District Court for the Middle District of Florida ________________________ (October 14, 2011) Before MARCUS, WILSON and BLACK, Circuit Judges. PER CURIAM: Defendants-Appellants Neil David Campbell and Julie Campbell (collectively the “Campbells”) appeal the district court’s entry of default judgment in favor of Plaintiffs-Appellees Costa Rican limited liability company C&M Investment Group Ltd. and its sole shareholder Karlin Holdings (collectively “C&M”) on C&M’s fraudulent transfer claim. On appeal, the Campbells argue that the district court erred in imposing and collapsing a constructive trust pursuant to the default judgment because he did not concede to the damages sought, and C&M’s complaint did not request a money judgment or to collapse a trust but was in actuality a claim for an equitable lien on property until damages are established (in related litigation in California court, hereinafter the “California Action”). After careful review, we affirm. We review the district court’s decision to enter a default judgment for abuse of discretion, but review de novo claims of legal error, as well as challenges to the sufficiency of the complaint. See Sanderford v. Prudential Ins. Co. of America, 902 F.2d 897, 898 (11th Cir.1990); First Vagabonds Church of God v. City of Orlando, 638 F.3d 756, 760 (11th Cir. 2011); Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc., 561 F.3d 1298, 1303 (11th Cir. 2009). The relevant procedural history is this. C&M’s complaint alleged a violation of Florida’s Uniform Fraudulent Transfer Act, on the ground that Neil Campbell had 2 purchased real property (the “Sarasota Property”) using C&M’s monies, which were obtained through fraud. The complaint sought to void a money transfer between the Campbells and to impose an equitable lien and/or a constructive trust for C&M’s benefit on the Sarasota Property, and sought an injunction prohibiting the Campbells from transferring or encumbering the Sarasota Property. The Campbells originally answered the complaint, but then filed a motion to withdraw the answer. The district court then directed the Campbells to notify the court as to whether they intended to withdraw their motion to withdraw the answer or in the alternative, if they moved to withdraw the motion, they were to provide discovery owed to C&M. The court ordered that if the Campbells failed to either withdraw the motion or to provide discovery, a default judgment would be entered in favor of C&M, “which includes the remedy of a constructive trust.” Because the Campbells failed to take either action within the allotted time period, the district court granted the Campbells’ motion to withdraw their answer and entered a default against the Campbells. In the default judgment, the district court granted to C&M a constructive trust over the Sarasota Property, by which title of the property would be transferred from the Campbells to C&M within ten days of the date of judgment, and ordered the Campbells to convey the property, and to execute all documents and to pay all taxes and costs required to effectuate the transfer. The judgment stipulated that should the 3 Campbells fail to comply with the order, C&M would be authorized to perform all acts necessary to effectuate the transfer of title, or in the alternative, at C&M’s election, the judgment would operate to divest the Campbells of title to the property and the property would be vested in C&M or its designee. The district court denied in relevant part the Campbells’ subsequent motion to stay, and on May 31, 2011, C&M designated Flower Sarasota, LLC to take title to the Sarasota Property, and the warranty deed was recorded on June 1, 2011. This timely appeal follows. We are unpersuaded by the Campbells’ claims that C&M was not entitled to entry of judgment until they proved up their “damages” in the separate California Action.1 As an initial matter, the Campbells’ reliance on the California Action is misplaced as those proceedings involve causes of actions separate from the underlying proceedings. As the district court recognized when the Campbells unsuccessfully moved to stay this proceeding in favor of the California Action, the 1 We are also unpersuaded, however, by C&M’s argument that the appeal is moot. While it is true that the previous transfer of property to a third party pursuant to a district court order that is not stayed pending appeal could make an appeal moot, see Am. Grain Ass’n v. Lee-Vac, Ltd., 630 F.2d 245, 247-48 (5th Cir. 1980), it is difficult to say that Flower Sarasota, LLC, the recipient of the Sarasota Property, is a true third party in this case. As the record shows, Flower Sarasota, LLC is a Florida corporation, formed just days before it received the Sarasota Property, and has as its registered manager Karlin Asset Management, Inc., which shares the same address and registered agent as the plaintiffs. Therefore, we reject C&M’s claim of mootness, and address the Campbells’ argument on the merits. 4 Campbells fail to appreciate that this lawsuit is independent of the California Action, and is not a mere “collection action”: This action deals with whether Mr. Campbell fraudulently transferred assets to Defendant Julie Campbell, who is not a party in the California action. Notably, the Florida property at issue in this case is not at issue in the California action. And as Plaintiffs point out, contrary to Defendants’ argument that this action is just a collection action, an action for fraudulent transfer under Florida law is not an action to collect, but rather a claim that requires an independent adjudication of liability based on statutorily-defined elements. (Doc. 41 at 5). Indeed, the Campbells do not even argue that the California and Florida actions involve the same causes of action or the same parties; they merely say that the cases involve the same facts. Moreover, C&M did not need to prove damages here because they did not seek damages in their complaint, but rather, sought a constructive trust and title to the Sarasota Property.2 The Campbells’ argument that C&M only sought “provisional relief” and that the district court, by imposing a constructive trust, granted Plaintiffs relief greater than what they requested is belied by C&M’s complaint, which requests that the district court “direct[] that the Sarasota Property be held in constructive trust.” The Campbells even acknowledge that C&M sought a constructive trust in 2 In addition, the Campbells’ assertion that Florida state law requires plaintiffs to make a showing separate from the allegations in the complaint to obtain a default judgment for damages is irrelevant here, since federal, not Florida, procedural law governs the default-judgment analysis in this case. See Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 427 (1996) (“federal courts sitting in diversity apply state substantive law and federal procedural law”). 5 their complaint, but insist that C&M’s express request for a constructive trust was somehow insufficient: “Despite use of the term ‘Constructive Trust’, Plaintiffs’ pleading is actually a claim for an equitable lien until damages are established.” (Blue Br. at 9). Notwithstanding the Campbells’ effort to rewrite the complaint to their liking, C&M’s prayer for a “constructive trust” was simply that -- a claim for a constructive trust. And, contrary to the Campbells’ unsupported assertion, C&M did not also have to plead that they wanted the constructive trust “collapsed” in order to be entitled to transfer of title. The law is clear that “[w]hen a constructive trust is created, the beneficiary . . . ‘is entitled to have his original interest restored, and to be reestablished in his title.’” Am. Nat’l Bank of Jacksonville v. FDIC, 710 F.2d 1528, 1541 (11th Cir. 1983) (quoting Johnson v. Johnson, 349 So. 2d 698, 699 (Fla. Dist. Ct. App. 1977)); see also Bender v. CenTrust Mortg. Corp., 51 F.3d 1027, 1029 (11th Cir. 1995) (“The beneficiary of the constructive trust is entitled to have his original interest restored in his property which was wrongfully taken.”); Barfield v. Bradshaw, 442 So. 2d 1002, 1004 (Fla. Dist. Ct. App. 1983) (holding that lower court erred in appointing a trustee to hold and manage funds subject to constructive trust, rather than transferring them to rightful owner, because “[n]o party sought appointment of a trustee, and the rule is that a beneficiary under a constructive trust is entitled to have 6 his original title restored”).3 Thus, C&M’s entitlement to that equitable relief was demonstrated when the Campbells conceded the truth of the well-pleaded allegations that the Campbells funded the purchase of the Sarasota Property entirely with money stolen from C&M. Finally, the Campbells’ claim, under federal procedural rules, that the district court erred by entering default judgment because C&M’s claim was not for a “sum certain” is based upon a misreading of Federal Rule of Civil Procedure 55. Rule 55(b)(1) requires a “sum certain” only before the clerk can enter default judgment. Rule 55(b)(2), by contrast, which addresses entry of default judgment by the court, contains no such requirement and gives courts broad discretion to determine what additional evidence, if any, is required to enter default judgment. See Fed. R. Civ. P. 55(b)(2) (providing that courts “may conduct hearings or make referrals” necessary to effectuate default judgment); see also SEC v. Smyth, 420 F.3d 1225, 1232 n.13 (11th Cir. 2005) (noting that an “evidentiary hearing is not a per se requirement” for a default judgment and is not needed when “all essential evidence is already of 3 The Campbells also say that “a constructive trust is a remedy, not a cause of action and must be imposed on an established cause of action.” (Blue Br. at 6-7). They provide no support for this assertion, and its basis is unclear. But in any event, the record is clear that the district court imposed a constructive trust as a remedy for the Campbells’ violation of Florida fraudulent transfer laws. (Doc. 106 at 2-3). Also, it was clear from the district court’s order that the Campbells’ failure to withdraw the motion to withdraw would result in the transfer of the Sarasota Property’s title. 7 record”); Hamm v. DeKalb Cnty., 774 F.2d 1567, 1576 (11th Cir. 1985) (“The entry of a default judgment is committed to the discretion of the district court.”). Accordingly, we affirm. AFFIRMED. 8

01-03-2023

10-14-2015

https://www.courtlistener.com/api/rest/v3/opinions/3212135/

[Cite as State v. Tingler, 2016-Ohio-3376.] IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT OTTAWA COUNTY State of Ohio Court of Appeals No. OT-15-015 Appellee Trial Court No. 14CR044 v. Charles Tingler DECISION AND JUDGMENT Appellant Decided: June 10, 2016 ***** Mark E. Mulligan, Ottawa County Prosecuting Attorney, and Joseph H. Gerber, Assistant Prosecuting Attorney, for appellee. James J. Popil, for appellant. ***** SINGER, J. {¶ 1} Appellant, Charles Tingler, appeals the May 13, 2015 judgment of the Ottawa County Court of Common Pleas. For the reasons that follow, we affirm, in part, reverse, in part, and remand for proceedings consistent with this decision. {¶ 2} Appellant sets forth four assignments of error: I. The trial court committed reversible error when it failed to credit appellant with the total number of days of jail time served[.] II. The trial court committed reversible error when it ordered appellant to pay restitution without a hearing pursuant to R.C. § 2928.18(A)(1)[.] III. The trial court committed reversible error when it denied appellant’s motion to dismiss indictment as the state violated appellant’s constitutional right to a speedy trial[.] IV. Appellant was denied the effective assistance of counsel[.] {¶ 3} On April 21 and 25, 2014, several telephone calls were placed making either a gun threat or bomb threats to schools. As a result of these calls, the Ottawa County Grand Jury issued a nine-count indictment against appellant on May 14, 2014. Counts 1, 3 and 7 charged appellant with inducing panic, in violation of R.C. 2917.31(A)(1), felonies of the second degree. Counts 2, 4 and 8 charged appellant with disrupting public services, in violation of R.C. 2909.04(A)(3), felonies of the second degree. Counts 5 and 6 charged appellant with making false alarms, in violation of R.C. 2917.32(A)(1), first degree misdemeanors. Count 9 charged appellant with aggravated menacing, in violation of R.C. 2903.21(A), a first degree misdemeanor. Appellant was arrested, arraigned and pled not guilty. 2. {¶ 4} On July 8, 2014, the state filed a motion to amend Counts 5 and 6 of the indictment summary to read “‘Disrupting Public Services O.R.C. 2917.32(A)(1)’ instead of ‘Disrupting Public Services O.R.C. 2909.04(A)(1).’” The amendments were allowed. {¶ 5} On November 12, 2014, appellant filed a motion to dismiss and/or quash the indictment arguing the indictment set forth two separate crimes in Counts 5 and 6, disrupting public services, in violation of R.C. 2909.04(A)(1) and making false alarms, in violation of R.C. 2917.32(A)(1). In addition, appellant asserted the indictment alleged Counts 2, 4 and 8 were felonies of the second degree, when these crimes were felonies of the fourth degree. {¶ 6} On November 13, 2014, the state filed a motion to amend the indictment summary requesting the summary reflect that Counts 2, 4 and 8 of the indictment were felonies of the fourth degree and Counts 5 and 6 were violations of R.C. 2917.32(A)(1), making false alarms. The trial court granted the motion to amend. {¶ 7} On February 11, 2015, the trial court granted appellant’s motion to dismiss as to Counts 5 and 6 of the indictment, but denied the motion as to Counts 2, 4 and 8. The trial court found amended Counts 5 and 6 changed the name of the crime, but amended Counts 2, 4 and 8 decreased the penalty and did not change the name and identity of the charge. On March 16, 2015, the state filed a motion to dismiss Counts 3 and 4 of the indictment; these counts were dismissed. {¶ 8} A jury trial commenced on March 17, 2015, as to Counts 1, 2, 7, 8 and 9 of the indictment. On March 18, 2015, the jury found appellant not guilty of Count 2 of the 3. indictment and guilty of Counts 1, 7, 8 and 9. The trial court held a sentencing hearing on May 13, 2015, and filed its sentencing judgment entry on that same day. The court sentenced appellant to a total of four years in prison. Appellant timely appealed. First Assignment of Error {¶ 9} In his first assignment of error, appellant contends the trial court failed to include his jail-time credit in the May 13, 2015 judgment entry of sentence. {¶ 10} The state concedes appellant is entitled to credit for time served during his pretrial incarceration, but argues the remedy is with the adult parole authority; a remand to the trial court is not needed. {¶ 11} Pursuant to R.C. 2967.191 “the department of rehabilitation and correction shall reduce the stated prison term of a prisoner * * * by the total number of days that the prisoner was confined for any reason arising out of the offense for which the prisoner was convicted and sentenced * * *.” However, it is the trial court’s responsibility to properly calculate the jail-time credit and include it in the body of the sentencing order; the failure to do so is plain error. State v. Collier, 184 Ohio App. 3d 247, 2009-Ohio-4652, 920 N.E.2d 416, ¶ 18 (10th Dist.). Moreover, “a defendant may only contest a trial court’s calculation of jail-time credit in an appeal from the judgment entry containing the allegedly incorrect calculation.” State v. Lomack, 10th Dist. Franklin No. 04AP-648, 2005-Ohio-2716, ¶ 11. 4. {¶ 12} Here, we find the trial court erred by failing to specify in the sentencing judgment entry the number of days of jail-time credit to which appellant was entitled. Accordingly, appellant’s first assignment of error is well-taken. Second Assignment of Error {¶ 13} In his second assignment of error, appellant contends the trial court erred when it ordered him to pay restitution without holding a hearing, pursuant to R.C. 2928.18(A)(1). {¶ 14} R.C. 2929.18(A) provides in relevant part: [T]he court imposing a sentence upon an offender for a felony may sentence the offender to any financial sanction * * * authorized under this section * * *. Financial sanctions that may be imposed pursuant to this section include, but are not limited to, the following: (1) Restitution by the offender to the victim of the offender’s crime * * *, in an amount based on the victim’s economic loss. If the court imposes restitution, the court shall order that the restitution be made to the victim in open court[.] * * * If the court decides to impose restitution, the court shall hold a hearing on restitution if the offender * * * disputes the amount. (Emphasis added.) {¶ 15} “R.C. 2929.18 permits a trial court to impose financial sanctions on a defendant, including restitution and reimbursements, subject to the defendant’s 5. opportunity to dispute the amounts imposed.” State v. Dahms, 6th Dist. Sandusky No. S-11-028, 2012-Ohio-3181, ¶ 15. {¶ 16} Here, a review of the record reveals at the sentencing hearing the court stated, “[a]s to restitution, is that an agreed amount or is that to be set for a hearing?” The prosecutor replied, “I don’t know, Your Honor. I haven’t spoken to - - [.]” The court responded, “- - All right. We will set that for a hearing.” However, no hearing was held. Then, in the sentencing judgment entry, the court set forth “[p]ursuant to the agreement of the parties Defendant shall pay restitution in the amount of $1,605.03 * * * and $945.99.” There is nothing in the record which indicates the parties agreed upon these amounts of restitution. Since no restitution was ordered at the sentencing hearing and there is no evidence of an agreement concerning the amounts of restitution, appellant was denied the opportunity to dispute the amounts imposed. We find the trial court erred in failing to hold a hearing on restitution. Accordingly, appellant’s second assignment of error is well-taken. Third Assignment of Error {¶ 17} In his third assignment of error, appellant argues the trial court should have granted his motion to dismiss because his right to a speedy trial was violated. Appellant contends after he was indicted, he signed time waivers on June 5 and July 15, 2014. Subsequently, the indictment was amended twice, but appellant did not sign any time waiver for the amendments to the indictment. Appellant submits the time waivers he executed were relative to the original indictment not the amendments. 6. {¶ 18} The state contends appellant did not move to dismiss the indictment on speedy-trial grounds before trial and therefore waived this argument on appeal. {¶ 19} A criminal defendant is afforded the right to a speedy trial under the federal and state constitutions. Sixth and Fourteenth Amendments to the U.S. Constitution; Ohio Constitution, Article I, Section 10. In Ohio, that right is set forth in the speedy trial statute, R.C. 2945.71, which requires a defendant to be tried within 270 days of arrest. {¶ 20} A defendant can waive his right to a speedy trial, when a defendant, knowingly and voluntarily, executes an express written waiver. State v. O’Brien, 34 Ohio St. 3d 7, 516 N.E.2d 218 (1987), paragraph one of the syllabus. “For a waiver to be entered into knowingly, it is elementary that the defendant understand the nature of the charges against him, as well as know exactly what is being waived and the extent of the waiver.” State v. Adams, 43 Ohio St. 3d 67, 69, 538 N.E.2d 1025 (1989). “The United States Supreme Court found that impairment of an accused’s defense was the most serious interest protected by the speedy-trial provisions, ‘because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.’” Id. at 70, quoting Barker v. Wingo, 407 U.S. 514, 532, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). {¶ 21} When a defendant executes an express written waiver of unlimited duration of his speedy-trial rights, the defendant is not entitled to a dismissal due to a delay in bringing him to trial unless the defendant has filed a formal written objection to any further continuances and has made a demand for trial. O’Brien at paragraph two of the syllabus. However, if a defendant files a motion to dismiss on speedy-trial grounds, any 7. prior waiver of the right to a speedy trial is revoked. Toledo v. Sauger, 179 Ohio App. 3d 285, 2008-Ohio-5810, 901 N.E.2d 826, ¶ 19 (6th Dist.). {¶ 22} Here, appellant did not file any formal written objections to the trial court’s continuances, nor did he file a formal demand for trial. Appellant did file a motion to dismiss, which included a speedy-trial argument. Therefore, the issue of appellant’s right to a speedy trial was preserved for appeal. {¶ 23} Appellant observes the trial court granted the state’s motion to amend Counts 5 and 6 of the indictment, which allowed the state to add new, different charges, and the trial court also allowed the state to amend Counts 2, 4 and 8 to reflect these charges were fourth degree felonies, not second degree felonies as set forth in the original indictment. Appellant claims he did not sign any time waiver for the amendments to the indictment. Appellant notes the trial court reversed its order as to amended Counts 5 and 6, ruling these counts must be dismissed. Appellant argues between November 19, 2014 and February 11, 2015, there was an invalid, defective amended indictment with no time waiver. Appellant asserts he “had not knowingly, voluntarily or intelligently waived his speedy trial time as to charges he was not aware.” {¶ 24} Crim.R. 7(D) provides “the trial court may at any time before, during or after a trial amend the indictment * * * provided no change is made in the name or identity of the crime charged.” However, there is distinction between an amendment to the original charge and a different charge based on the same facts and circumstances as the original charge. State v. Butt, 2d Dist. Montgomery No. 16215, 1997 WL 568013, *2 8. (Aug. 29, 1997). A different charge creates an additional burden on the defendant’s liberty interests. Id. An amendment which does not change the name or identity of the crime charged creates no additional burden to the defendant’s liberty. State v. Campbell, 150 Ohio App. 3d 90, 2002-Ohio-6064, 779 N.E.2d 811, ¶ 24 (1st Dist.). So long as the amendment is consistent with Crim.R. 7(D), the speedy trial time waiver applicable to the original charge relates to the amended charge. Id. {¶ 25} An amendment which changes the degree or penalty of a crime is not permitted if the amendment increases the degree or penalty or fundamentally alters the nature of the charge to the prejudice of the defendant. State v. Davis, 121 Ohio St. 3d 239, 2008-Ohio-4537, 903 N.E.2d 609, ¶ 12. When an indictment is amended to decrease the degree or penalty associated with the crime charged, the amendment is permissible. Grove City v. Ricker, 10th Dist. Franklin No. 13AP-766, 2014-Ohio-1808, ¶ 7. {¶ 26} Here, there were two amended indictments against appellant, one involving Counts 5 and 6 and the other concerning Counts 2, 4 and 8. Ultimately, amended Counts 5 and 6 were dismissed by the trial court because the name of the crime was changed. Amended Counts 2, 4 and 8 remained pending. {¶ 27} Since amended Counts 5 and 6 were dismissed prior to trial and appellant has not shown he was prejudiced by these amended charges, any speedy-trial argument appellant may have had regarding these charges is moot. Regarding amended Counts 2, 4 and 8, the amendments are consistent with Crim.R. 7(D). In addition, appellant’s ability 9. to defend himself as to these amended counts was not impaired as he remained apprised of the charges against him, only the penalty had decreased. Thus, the speedy-trial waivers appellant signed for the original charges relate to amended Counts 2, 4 and 8. Since the applicability of the waivers was the only issue raised by appellant in support of his speedy-trial challenge, we find appellant’s right to a speedy trial was not violated. Therefore, appellant’s third assignment of error is not well-taken. Fourth Assignment of Error {¶ 28} Appellant argues his three court-appointed trial attorneys were ineffective for several reasons. The first attorney, appointed May 16, 2014, did not oppose the state’s motion to amend Counts 5 and 6 of the indictment or file any pleadings with respect to the defective indictment. The second attorney, who was appointed August 25, 2014, did not file any pleadings relative to the defective indictment. Appellant submits both attorneys should have filed motions to dismiss, and their failure to do so prejudiced him “as the timeframe for his case to proceed to trial was postponed through no fault of Appellant.” The third attorney was appointed October 22, 2014, and thereafter filed the motion to dismiss. Appellant maintains he was prejudiced by the months long delay before five of the nine charges against him were dismissed. Appellant also argues he was prejudiced when his third attorney filed an untimely motion to suppress evidence. {¶ 29} Appellant asserts his attorneys failed to advocate for him and failed to zealously represent his interests, and their actions and inactions prejudiced him and directly impacted the outcome of the proceedings. 10. {¶ 30} In order to prevail on a claim for ineffective assistance of counsel, an appellant must show trial counsel’s performance fell below an objective standard of reasonable representation and prejudice resulted from counsel’s deficient performance. State v. Bradley, 42 Ohio St. 3d 136, 137, 538 N.E.2d 373 (1989), paragraph two of the syllabus, following Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Trial attorneys are entitled to a strong presumption that their conduct falls within the wide range of reasonable assistance. Strickland at 688. {¶ 31} Here, appellant identified several errors his court-appointed attorneys may have made during the time they represented appellant in the trial court. However, there is no evidence that appellant was prejudiced by these alleged errors or by the delay caused by the alleged errors. As appellant has not met the burden of proof for demonstrating ineffective assistance of counsel, his fourth assignment of error is not well-taken. {¶ 32} For the foregoing reasons, the judgment of the Ottawa County Court of Common Pleas is affirmed, in part, and reversed, in part. This matter is remanded to the Ottawa County Court of Common Pleas for resentencing with a hearing on the amount of restitution, and inclusion of appellant’s jail-time credit for his pretrial period of incarceration. Costs of this appeal are to be split evenly between the parties pursuant to App.R. 24. Judgment affirmed, in part, and reversed, in part. 11. State v. Tingler C.A. No. OT-15-015 A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4. Arlene Singer, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ James D. Jensen, P.J. JUDGE CONCUR. _______________________________ JUDGE This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6. 12.

01-03-2023

06-10-2016

https://www.courtlistener.com/api/rest/v3/opinions/3814318/

Notice of appeal was not served upon the county attorney or upon the clerk of the court in which the judgment was rendered, as is required by section 6949 of Snyder's Comp. Laws Okla. 1909. The state's motion to dismiss the appeal upon this ground must therefore be sustained. Boneparte v. State, ante, p. 345,106 P. 347.

01-03-2023

07-06-2016

https://www.courtlistener.com/api/rest/v3/opinions/996407/

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 98-1413 EULA S. HUGHES, Widow of Carl Hughes, Petitioner, versus DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR; CLINCHFIELD COAL COMPANY, Respondents. On Petition for Review of an Order of the Benefits Review Board. (97-0809-BLA) Submitted: September 10, 1998 Decided: September 23, 1998 Before MURNAGHAN, MICHAEL, and MOTZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Eula S. Hughes, Petitioner Pro Se. Patricia May Nece, Edward Wald- man, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.; Timothy Ward Gresham, PENN, STUART, ESKRIDGE & JONES, Abingdon, Virginia for Respondents. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Petitioner seeks review of the Benefits Review Board’s deci- sion and order affirming the administrative law judge's denial of black lung benefits pursuant to 30 U.S.C.A. §§ 901-945 (West 1986 & Supp. 1995). Our review of the record discloses that the Board’s decision is based upon substantial evidence and is without revers- ible error. Accordingly, we affirm on the reasoning of the Board. Hughes v. DOWCP, BRB No. 97-0809-BLA (B.R.B. Jan. 29, 1998). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 2

01-03-2023

07-04-2013

https://www.courtlistener.com/api/rest/v3/opinions/4539904/

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON RICHARD L. FERGUSON, individually, ) No. 79673-9-I ) Appellant, ) ) v. ) DIVISION ONE ) STATE OF WASHINGTON ) EMPLOYMENT SECURITY ) DEPARTMENT, a government entity, ) JOHN M. SELLS, individually, and in his ) UNPUBLISHED OPINION Official Capacity as Assistant ) Commissioner State of Washington ) Employment Security Department, ) ) Respondent. ) ) ANDRUS, A.C.J. — After this court affirmed the Employment Security Department’s denial of unemployment benefits to Richard L. Ferguson, 1 he filed a tort suit against the Department and the commissioner who denied his claim (collectively “Department”). 2 The trial court dismissed Ferguson’s suit on summary judgment and rejected his CR 56(f) continuance request. Ferguson challenges 1 Ferguson v. Dep’t of Emp’t Sec., No. 75706-7-I, 2017 WL 4480784 (Wash. Ct. App. Oct. 9, 2017) (unpublished), https://www.courts.wa.gov/opinions/pdf/757067.PDF. 2 This court previously affirmed dismissal of Ferguson’s tort suit against his former employer. Ferguson v. Baker Law Firm, P.S., No. 78025-5-I, 2019 WL 3926173 (Wash. Ct. App. Aug. 19, 2019) (unpublished), https://www.courts.wa.gov/opinions/pdf/780255.pdf. Citations and pin cites are based on the Westlaw online version of the cited material. No. 79673-9-I/2 both rulings. Because he has established neither an abuse of discretion in denying the continuance nor any genuine issues of material fact, we affirm. FACTS The facts are set forth in Ferguson v. Department of Employment Security, No. 75706-7-I, 2017 WL 4480784 (Wash. Ct. App. Oct. 9, 2017) (unpublished), https://www.courts.wa.gov/opinions/pdf/757067.PDF, and will be repeated only as necessary. In 2014 and 2015, Ferguson worked as a paralegal at the Baker Law Firm in Marysville. As soon as Ferguson began working for the firm, other employees raised concerns that he smelled like alcohol, showed a difficulty in following conversations and concentrating, frequently missed filing deadlines, and arrived late to the office. After futile attempts to help Ferguson improve his work, the firm terminated his employment on March 13, 2015. Ferguson filed a claim for unemployment benefits. This court affirmed the Department’s denial of Ferguson’s claim, concluding substantial evidence supported the Department’s conclusion that Ferguson had been terminated for misconduct—specifically, at least in part, for consistently coming to work smelling of alcohol. On September 11, 2017, Ferguson sued the Department for negligence, defamation, and intentional and negligent infliction of emotional distress. He alleged the Department’s decision denying benefits, contained false and inaccurate statements about him—specifically, that he repeatedly arrived at Baker -2- No. 79673-9-I/3 Law Firm with alcohol on his breath and that he was terminated for repeatedly reporting to work with alcohol on his breath. For 15 months, Ferguson took no action in the suit. On December 14, 2018, the Department moved for summary judgment, setting the hearing date for February 6, 2019. It argued that Ferguson’s claims against the Department were barred by the doctrine of quasi-judicial immunity and that this court had already adjudicated his claims when it affirmed the Department’s denial of his unemployment benefits. Over a month later, on January 25, 2019, Ferguson moved to continue the summary judgment hearing, arguing he had not had time to review and respond to the motion. Ferguson maintained that because he was representing himself, responding to the Department’s motion was an “enormous and overwhelming task, which would normally require one or more associates, a partner, a brief bank, paralegals, secretaries, and clerical staff.” He also asserted he had not conducted discovery in the case, because he was overwhelmed by his suit against his former employer, which was then before this court. The trial court continued Ferguson’s continuance motion to coincide with the Department’s underlying motion, orally denied his requested continuance, and granted the Department’s motion for summary judgment, dismissing Ferguson’s claims with prejudice. Ferguson appeals. ANALYSIS Ferguson argues the trial court abused its discretion by denying his motion to continue the summary judgment hearing. We disagree. -3- No. 79673-9-I/4 We review this decision for an abuse of discretion. Pitzer v. Union Bank of Cal., 141 Wn.2d 539, 556, 9 P.3d 805 (2000). CR 56(f) allows a trial court to grant a continuance if the party requesting the continuance provides an affidavit showing a need for additional time to obtain affidavits, take depositions, or conduct other discovery. Butler v. Joy, 116 Wn. App. 291, 299, 65 P.3d 671 (2003). The trial court has the discretion to deny a continuance when (1) the requesting party does not have a good reason for the delay in obtaining the evidence; (2) the requesting party does not indicate what evidence would be established by further discovery; or (3) the new evidence would not raise a genuine issue of fact. Coggle v. Snow, 56 Wn. App. 499, 507, 784 P.2d 554 (1990). Ferguson’s primary reason for delay was the fact that he was representing himself. But a “trial court must hold pro se parties to the same standards to which it holds attorneys.” Edwards v. Le Duc, 157 Wn. App. 455, 460, 238 P.3d 1187 (2010); see also In re Marriage of Olson, 69 Wn. App. 621, 626, 850 P.2d 527 (1993) (“[T]he law does not distinguish between one who elects to conduct his or her own legal affairs and one who seeks assistance of counsel—both are subject to the same procedural and substantive laws.”) (internal quotation marks omitted) (quoting In re Marriage of Wherley, 34 Wn. App. 344, 349, 661 P.2d 155 (1983))). Furthermore, Ferguson had over a year in which to conduct discovery, during which he did nothing to pursue his suit, and he did not indicate to the court what evidence would be established by such discovery. Thus, the trial court did not abuse its discretion in denying Ferguson’s request to continue the summary judgment hearing. -4- No. 79673-9-I/5 Moreover, no amount of evidence gathered would establish a genuine issue of material fact because Ferguson’s claims are resolvable as a matter of law. Summary judgment is appropriate only when no genuine issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). We review summary judgment orders de novo, engaging in the same inquiry as the trial court. Garcia v. Dep’t of Soc. & Health Servs., 10 Wn. App. 2d 885, 909, 451 P.3d 1107 (2019). “We . . . consider[] the evidence and all reasonable inferences from the evidence in the light most favorable to the nonmoving party.” Keck v. Collins, 184 Wn.2d 358, 370, 357 P.3d 1080 (2015). As it did below, the Department argues the doctrine of quasi-judicial immunity bars Ferguson’s suit. We agree. Judicial officers’ actions are “protected by immunity from civil action for damages if [those actions] are intimately associated with the judicial process.” Labrec v. Emp’t Sec. Dep’t, 52 Wn. App. 188, 191, 758 P.2d 501 (1988). Issuing findings of fact qualifies as a protected action. Id. at 190. “The purpose of this immunity is not to protect judges as individuals, but to ensure that judges can administer justice without fear of personal consequences.” Taggart v. State, 118 Wn.2d 195, 203, 822 P.2d 243 (1992). “If disgruntled litigants could raise civil claims against judges, then ‘judges would lose that independence without which no judiciary can either be respectable or useful.’” Id. (internal quotation marks omitted) (quoting Butz v. Economou, 438 U.S. 478, 509, 98 S. Ct. 2894, 57 L. Ed. 2d 895 (1978)). Furthermore, “when an adjudication within an administrative agency shares enough of the characteristics of the judicial process, the agency is -5- No. 79673-9-I/6 absolutely immune from suits for damages.” Labrec, 52 Wn. App. at 190; see also Lutheran Day Care v. Snohomish County, 119 Wn.2d 91, 127, 829 P.2d 746 (1992) (absolute immunity of quasi-judicial officers extends to governmental entities vicariously liable for the individual officers’ acts). Labrec established that “the [Employment Security] Department and its adjudicating officers are absolutely immune from liability when acting in a judicial capacity.” 52 Wn. App. at 189, 192. Accordingly, the Department’s decision denying Ferguson unemployment benefits is a judicial action absolutely immune from civil suit. Ferguson’s suit is premised entirely on his contention that the Department harmed him by issuing its decision denying unemployment benefits. His allegations relate solely to the Department’s resolution of conflicting evidence in an adjudicative proceeding. This is precisely the sort of case quasi-judicial immunity is meant to protect against—to ensure that judicial officers, and by extension agencies, can administer justice without fear of personal consequences. Even if Ferguson’s claims were not barred by quasi-judicial immunity, his claims are barred as a matter of law. Ferguson’s quarrel with the Department’s decision to deny his claim for unemployment benefits stems from the finding of fact that Ferguson had alcohol on his breath. But this court addressed this argument when affirming the Department’s denial of benefits. Ferguson next contends that the commissioner erred in finding that he came to work with alcohol on his breath. He contends that the evidence showed only that his body odor or perspiration smelled of metabolized alcohol. But substantial evidence supports the challenged finding. [One Baker employee] testified that “on occasion, I suppose, that maybe it smelled like it was coming from your breath,” [and another employee] testified that the smell “could possibly” have come from Ferguson’s breath. Moreover, even if the -6- No. 79673-9-I/7 findings were erroneous, it is insignificant. Ferguson was terminated for coming to work smelling of alcohol. The source of the smell is immaterial. Ferguson, 2017 WL 4480784 at *4 (emphasis added). This ruling forecloses Ferguson’s claims for defamation and intentional infliction of emotional distress. To establish his defamation claim, Ferguson must show falsity, an unprivileged communication, fault, and damages. Life Designs Ranch, Inc. v. Sommer, 191 Wn. App. 320, 330, 364 P.3d 129 (2015). As a matter of law, Ferguson cannot establish falsity where this court has previously ruled that the challenged finding of fact was supported by substantial evidence. Ferguson’s claim for intentional infliction of emotional distress similarly fails. The first element of an intentional infliction of emotional distress claim is extreme and outrageous conduct. Strong v. Terrell, 147 Wn. App. 376, 385, 195 P.3d 977 (2008). As a matter of law, Ferguson cannot establish extreme and outrageous conduct where this court has previously ruled that the challenged finding of fact was supported by substantial evidence. Lastly, Ferguson’s claims for negligence and negligent infliction of emotional distress also fail. To establish either, Ferguson must first show the Department owed him a duty. Munich v. Skagit Emergency Commc’n Ctr., 175 Wn.2d 871, 877, 288 P.3d 328 (2012) (negligence); Kumar v. Gate Gourmet Inc., 180 Wn.2d 481, 505, 325 P.3d 193 (2014) (negligent infliction of emotional distress). Because Ferguson claims the Department—a governmental entity— was negligent, he must show under the public duty doctrine that “the duty breached was owed to him . . . in particular, and was not the breach of an obligation owed to -7- No. 79673-9-I/8 the public in general, i.e., a duty owed to all is a duty owed to none.” Munich, 175 Wn.2d at 878. Ferguson alleged no facts sufficient to show the Department owed him a particular duty. As a matter of law, with no showing of duty, Ferguson cannot establish the Department was negligent. Because the Department is immune from Ferguson’s civil action for damages and because it was entitled to judgment as a matter of law, the court did not abuse its discretion in denying Ferguson’s motion to continue the summary judgment hearing nor did it err in granting the Department’s motion for summary judgment. Affirmed. WE CONCUR: -8-

01-03-2023

06-08-2020

https://www.courtlistener.com/api/rest/v3/opinions/2892543/

WINNIE PIPELINE V. HARRINGTON NO. 07-02-0508-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D APRIL 6, 2005 ______________________________ COVENANT HOSPITAL PLAINVIEW FKA METHODIST HOSPITAL PLAINVIEW, Appellant v. BRIAN CARTY, Appellee _________________________________ FROM THE 242nd DISTRICT COURT OF HALE COUNTY; NO. B31197-0011; HON. EDWARD B. NOBLES, PRESIDING _______________________________ On Motion to Dismiss _______________________________ Before QUINN, REAVIS and CAMPBELL, JJ. The appellant, Covenant Hospital Plainview, fka Methodist Hospital Plainview, has moved the court, via letter sent by its counsel of record, to dismiss this appeal because the debts of Brian Carty, appellee, were discharged in bankruptcy. Thus, the hospital allegedly cannot further prosecute its claim against him. Without passing on the merits of the case, we grant the motion to dismiss pursuant to Texas Rule of Appellate Procedure 42.1(a)(2) and dismiss the appeal. Having dismissed the appeal at appellant's request, no motion for rehearing will be entertained, and our mandate will issue forthwith. Brian Quinn Justice ears confinement and a $10,000 fine. Sentence was imposed on October 26, 2004. The reporter's record was filed on December 20, 2004, and the clerk's record was filed on March 30, 2005. Appellant is incarcerated, and his brief was originally due on April 29, 2005. Two extensions of time were granted, and then by letter dated July 6, 2005, a third extension was granted but a request to order the court reporter to prepare a supplemental reporter's record from a previous trial that resulted in mistrial was denied. After the third briefing deadline expired, by order dated August 29, 2005, the court reporter was granted an extension of time to file the supplemental record to September 8, 2005, if authorized by the trial court, and a fourth extension of time to file appellant's brief was granted to September 19, 2005. Appellant was notified that failure to timely file the brief would result in the appeal being abated and the caused remanded for further proceedings. On September 19, 2005, the court reporter forwarded to this Court a copy of a letter to appellant's counsel dated September 15, 2005, indicating she was still awaiting instructions on what portions of the record to prepare. The reporter also communicated to the Clerk of this Court that as of September 27, 2005, she had not received any response from counsel. Also, no action has been taken by counsel in this Court since August 15, 2005. The supplemental reporter's record and appellant's brief remain outstanding. Thus, we now abate the appeal and remand the cause to the trial court for further proceedings pursuant to Rules 37.3(a)(2) and 38.8(b). Upon remand, the trial court shall immediately cause notice of a hearing to be given and, thereafter, conduct a hearing to determine the following: 1. whether appellant desires to prosecute the appeal; 2. whether appellant is entitled to a free supplemental reporter's record of a trial that resulted in mistrial, and if so, whether counsel has requested preparation; and 3. when counsel anticipates filing of appellant's brief given the lapse in time since the appeal was perfected on November 19, 2004. The trial court shall cause a hearing to be transcribed. Should it be determined that appellant does want to continue the appeal and is indigent, then the trial court shall also take such measures as may be necessary to assure appellant effective assistance of counsel. Finally, the trial court shall execute findings of fact, conclusions of law, and such orders as the court may enter regarding the aforementioned issues and cause its findings and conclusions to be included in a supplemental clerk's record. A supplemental record of the hearing shall also be included in the appellate record. Finally, the trial court shall file the supplemental clerk's record and the supplemental reporter's record with the Clerk of this Court by Friday, October 28, 2005. It is so ordered. Per Curiam Do not publish. 1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.

01-03-2023

09-07-2015

https://www.courtlistener.com/api/rest/v3/opinions/2907863/

Bosque Co Bk v. FNB Hico IN THE TENTH COURT OF APPEALS NO. 10-91-136-CV         BOSQUE COUNTY BANK,                                                                                        Appellant         v.         FIRST NATIONAL BANK OF HICO,                                                                                        Appellee From the 220th District Court Bosque County, Texas Trial Court # 91-01-00891-BCCV                                                                                                                                                                                        O P I N I O N                                                                                                                 Bosque County Bank (BCB) appeals a summary judgment entered for the First National Bank of Hico (Hico) in a post-judgment garnishment proceeding. Hico had obtained an $88,772.60 judgment against Harlon Koonsman, who had a banking relationship with BCB for several years. On March 2, 1990, Hico caused a writ of garnishment to be served on BCB in an attempt to satisfy its judgment against Koonsman. When the writ was served, Koonsman's checking account balance at BCB totaled $513.53, and he owed BCB $40,771.20 on a line of credit represented by a one-year $50,000 note maturing on August 23, 1990.           The trial court granted a summary judgment in favor of Hico for $65,701.99, plus interest and attorney's fees, which consisted of the following: $500 debited by BCB from Koonsman's checking account after the writ was served and applied against his loan balance; $35,757.28, the total of two third-party checks endorsed to the bank by Koonsman and applied by BCB against his loan balance following service of the writ; and $29,444.71 deposited to Koonsman's checking account by BCB after the writ was served to cover checks drawn on the account.           BCB asserts three points of error on appeal, to-wit: (1) the Texas garnishment statutes are unconstitutional because they do not afford the garnishee due process; (2) the court erred in granting the summary judgment for payments made by Koonsman on the note; (3) the court erred in granting the summary judgment for the funds advanced by the bank to pay the insufficient checks. Hico claims by cross-point that the trial court should have granted Hico a summary judgment for an additional $30,812.48, the amount allegedly still available to Koonsman on the line of credit.           Garnishment is a statutory remedy by which a garnishor may impound a debtor's property in the possession of or owing by a third party to the debtor and apply those funds to the satisfaction of the garnishor's debt. Beggs v. Fite, 130 Tex. 46, 106 S.W.2d 1039, 1042 (1937). Essentially, the garnishor is subrogated to his debtor's rights against the garnishee. Id. By complying strictly with the statutory requirements, the garnishor occupies the position of his debtor against the garnishee and may enforce whatever rights the debtor could have enforced if the debtor had sued the garnishee directly. Mensing v. Engelke, 67 Tex. 532, 4 S.W. 202, 204-05 (1887). However, the garnishor is bound by all of the existing legal rights and obligations between the debtor and the garnishee. Bank One v. Sunbelt Sav., 824 S.W.2d 557-58 (Tex. 1992). Thus, the garnishor cannot assert a greater claim against the garnishee than could the debtor, and similarly, the garnishee is in no worse position following service of the writ than if the debtor had sued directly. Rome Industries, Inc. v. Intsel Southwest, 683 S.W.2d 777, 779 (Tex. App.—Houston [14th Dist.] 1984, writ ref'd n.r.e.); Farmers and Merchants State Bank of Teague v. Fetzer, 185 S.W. 596, 597 (Tex. Civ. App.—Dallas 1916, no writ). The garnishee can, therefore, set up any defense, counterclaim, or offset that could be raised in response to a direct suit by the debtor. Orleans Mfg. Co. v. Hinckley, 61 S.W.2d 865, 866 (Tex. Civ. App.—San Antonio 1933, writ dism'd). Generally, the garnishee's potential liability is determined by whether the garnishor's debtor could have successfully sued the garnishee for recovery of the property. Pearson Grain Co. v. Plains Trucking Co., Inc., 494 S.W.2d 639, 641 (Tex. Civ. App.—Amarillo 1973, writ ref'd n.r.e.).           By BCB's first point of error, it argues that the Texas statutes and rules governing garnishment are unconstitutional because they do not afford the garnishee due process as guaranteed under the Fourteenth Amendment of the United States Constitution. See U.S. Const. Amend. XIV. BCB claims that they wholly fail to notify a garnishee that its own property may be at risk by being held liable to the extent of a judgment if the garnishee fails to answer, answers incorrectly, or takes legally prohibited action. See Tex. Civ. Prac. & Rem. Code Ann. § 63.001—.005 (Vernon 1986); Tex. R. Civ. P., Rules 657-679.           The question of the constitutionality of the garnishment statutes and rules has already been decided against BCB. The postjudgment garnishment proceeding used in this case has been held to be a constitutional and valid method of enforcing a valid original judgment. See Southwest Metal, etc. v. Intern. De Aceros, 503 F.Supp 76, 77-8 (1980); Owen Elec. Supply v. Brite Day Const., 821 S.W.2d 283, 286 (Tex. App.—Houston [1st Dist.] 1991, no writ). Appellant's first point of error is overruled.           BCB complains in its second point of error that the trial court erred in granting the motion for summary judgment as to the "deposits" made by Koonsman because the "deposits" were payments owed to BCB and were never property of Koonsman in the hands of BCB. The trial court held that BCB was liable "on two deposits totalling $35,757.28 which were . . . applied to the line of credit." The third-party checks made payable to Koonsman totalling $35,757.28 were never deposited to Koonsman's checking account but were applied directly to the line of credit by BCB for Koonsman's benefit. At minimum, a material fact issue precluding a summary judgment was raised by BCB in the trial court in its response to the motion for summary judgment as to Koonsman's intent in tendering the checks to BCB.           Payment to partially discharge his obligations appears to be what occurred between Koonsman and BCB upon his tender of the funds. Money paid to discharge a valid debt cannot later be returned or retrieved. Tyler v. Tyler, 742 S.W.2d 740 (Tex. App.—Houston [14th Dist.] 1987, writ denied). At the very least, a fact question was raised regarding Koonsman's intent as to the funds tendered. We sustain Appellant BCB's second point of error.           By its third point of error BCB contends that the trial court erred in granting the motion for summary judgment as to the checks "honored" by BCB because the checks were only honored by the extension of credit and thus were a lawful and proper offset. The trial court awarded judgment to Hico for $29,856.80, the total amount of checks drawn by Koonsman against his checking account and honored by BCB. In each instance, Koonsman's checks were presented to BCB for payment when his checking account balance was insufficient to cover the amount of the check.           Presentment of the checks when the account holds insufficient funds creates an overdraft when the check is paid. See generally Tex. Bus. & Com. Code Ann. section 4.401. The overdraft creates a debt of the customer to the bank, payable on demand. Id. at section 3.108; Williams v. Cullen Center Bank & Trust, 685 S.W.2d 311 (Tex. 1985). BCB contends that this debt is subject to offset. In each instance, BCB paid Koonsman's overdrafts by making him a loan under the terms of the line of credit. By making the loan, BCB maintained the debtor-creditor relationship represented by the checking account at a minimal balance, but at the same time secured the advance of funds by the line-of-credit security agreement. Thus, the maturity of the line of credit is irrelevant to the determination of whether BCB was entitled to setoff a debt of Koonsman in his checking account by loaning him money. BCB argues that the garnishment is subordinate to the contractual and equitable right of offset of BCB. See San Felipe National Bank v. Caton, 668 S.W.2d 804 (Tex. App.—Houston [14th Dist.] 1984, no writ).           BCB has acknowledged that it advanced more money than necessary each time an overdraft was covered. The amount of excess funds totalled $991.35. BCB also admits that these amounts could have been claimed and freely spent by Koonsman, but BCB argues that because Koonsman's account balance was always subject to offset due to overdrafts, BCB is not liable on the writ for any of those amounts. We agree, and sustain Appellant's third and final point of error.           Appellee Hico filed a crosspoint asserting that the trial court erred in failing to find that the unfunded sum of $30,812.48 represented money in the bank payable to Koonsman's command and subject to impoundment by the writ of garnishment. The loan agreement specifically provides that "each advance (loan) under this agreement shall be in the sole discretion of Lender (BCB)." However, Mr. Wimberly, BCB's president, testified in effect that when Koonsman "sends a check in and it hits the account," that the bank would "pretty much" automatically draw against Koonsman's line of credit. This creates a material fact issue. However, be that as it may, we know of no procedure authorizing an appeal from the trial court's refusal to grant a summary judgment. Appellee's crosspoint is overruled.           For all of the foregoing reasons, we reverse the trial court's judgment and remand the entire cause for trial on the merits.                                                                                    JOHN A. JAMES, JR.                                                                                  Justice (Retired) Before Chief Justice Thomas,           Chief Justice McDonald (Retired)           Justice James (Retired) Reversed and remanded Opinion delivered and filed February 17, 1993 Do not publish fs proved Shupe negligent saying:  “We believe that the evidence strongly supports a finding Shupe was negligent.”  We have never been authorized to substitute our view of the evidence for the jury’s view of it.  See e.g. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2000) (“It is a familiar principle that in conducting a factual sufficiency review, a court must not merely substitute its judgment for that of the jury.”).           It is clear from a full review of the record that this case was about causation.  Viewed objectively, the jury’s verdict tells us that when Heppler was unable to stop in his lane of traffic and bounced his pick-up off the back-side of a van and into the oncoming lane of traffic directly into the path of an oncoming truck, it did not matter who was driving that truck or how that driver was operating it; there was going to be a wreck.           That was the first wreck.  This Court’s opinion is the second.  Paraphrasing the Court, I believe that the record strongly supports the jury’s refusal to find that anything other than Heppler’s failure to control his vehicle was the proximate cause of this multi-vehicle wreck. Conclusion           Because it cannot be error to refuse to submit an immaterial instruction, because it cannot be harmful error to the party with the burden of proof to submit less than all the elements of a claim, because it cannot be harmful error to submit other elements of a claim if the party with the burden of proof was unable to prove even the elements submitted, and because the Court simply disagrees with the jury’s refusal to find Shupe negligent and reverses the judgment, I dissent.                                                                      TOM GRAY                                                                    Chief Justice   Dissenting opinion delivered and filed November 17, 2004

01-03-2023

09-10-2015

https://www.courtlistener.com/api/rest/v3/opinions/3992927/

I concur in the foregoing opinion in so far as it holds that the complaint states a cause of action. I concur in the result of the holding therein that the cause of action, as pleaded, is not barred by the statute of limitations; but upon a different ground than that set forth in the opinion. I rest my concurrence upon the ground that respondent Cullen acquired the fund in trust for appellant Gustafson, and did not disclaim his trust obligation until a time within the statutory period of limitation for the commencement of the action, preceding the commencement of the action. It was then, the time of his disclaimer of his trust obligation, that the cause of action arose against him in favor of appellant. I dissent from the view, as I understand it expressed in the foregoing opinion, that the action is not barred because of the time of discovery of the so-called fraud being less than three years prior to the commencement of the action, because I am of the opinion that this is not "an action for relief upon the ground of fraud," within the meaning of Rem. Comp. Stat., § 159, subd. 4, prescribing the period of limitation of time for the commencement of such an action; that is, I think the action is not grounded upon fraud. It seems to me our decision inHutchinson Realty Co. v. Hutchinson, 136 Wash. 184,239 P. 388, and a number of our prior decisions therein reviewed, support my conclusion. *Page 113

01-03-2023

07-06-2016

https://www.courtlistener.com/api/rest/v3/opinions/3224209/

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of-- ) ) EHW Constructors, a Joint Venture ) ASBCA No. 60549 ) Under Contract No. N44255-12-C-3008 ) APPEARANCES FOR THE APPELLANT: G. Scott Walters, Esq. Steven L. Reed, Esq. Smith, Currie & Hancock LLP Atlanta, GA APPEARANCES FOR THE GOVERNMENT: Ronald J. Borro, Esq. Navy Chief Trial Attorney Henry D. Karp, Esq. Trial Attorney ORDER OF DISMISSAL The appeal has been withdrawn. Accordingly, it is dismissed from the Board's docket with prejudice. Dated: 22 June 2016 I certify that the foregoing is a true copy of the Order of Dismissal of the Armed Services Board of Contract Appeals in ASBCA No. 60549, Appeal ofEHW Constructors, a Joint Venture, rendered in conformance with the Board's Charter. Dated: JEFFREY D. GARDIN Recorder, Armed Services Board of Contract Appeals

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/130686/

539 U.S. 944 Barberv.Hurley, Warden. No. 02-10167. Supreme Court of United States. June 23, 2003. 1 Appeal from the C. A. 6th Cir. 2 Certiorari denied.

01-03-2023

04-28-2010

https://www.courtlistener.com/api/rest/v3/opinions/3074751/

Fourth Court of Appeals San Antonio, Texas July 1, 2015 No. 04-15-00125-CR EX PARTE Hector RAMIREZ, From the 227th Judicial District Court, Bexar County, Texas Trial Court No. 2013CR2894-W1 The Honorable Kevin M. O'Connell, Judge Presiding ORDER The Appellant’s Motion for Extension of Time to File Brief is hereby GRANTED. The Appellant’s brief is due July 20, 2015. _________________________________ Karen Angelini, Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 1st day of July, 2015. ___________________________________ Keith E. Hottle Clerk of Court

01-03-2023

10-16-2015

https://www.courtlistener.com/api/rest/v3/opinions/3236771/

The settlement of uncertain or disputed boundaries by proceedings at law, or in equity, has long presented difficult questions to the bar as well as the courts of this state. Cases involving conveyances by government subdivision have been most numerous. The passing away of the marks of the original surveys by process of time, and clearing up the country, have contributed to uncertainty. Surveys made by course and distance only, as found in the field notes, sometimes relying on traditional starting points, often conflict and add confusion. Ancient boundaries, or traditional corners, set by later surveys, often become of major importance in ascertaining where the original lines were in fact apart from any question of adverse possession. Ford v. Bradford, 212 Ala. 515, 103 So. 549. As early as McQueen v. Lampley, 74 Ala. 409, Judge Stone pointed out the difficulty of settling a disputed boundary line by ejectment where muniments of title call for government subdivision. If the plaintiff sues by the description in his deed, and defendant pleads not guilty, he admits possession of lands covered by plaintiff's deed and not his own. If he disclaims the possession of the lands sued for, he cuts himself off from proof of adverse possession, whether it arise by an agreed survey acquiesced in by both parties, by a line pointed out to him, when he purchased, and to which he has held without question for the statutory period, or by any other form of adverse possession recognized by law. On a disclaimer the plaintiff may elect to take judgment without cost. In such event there is no adjudication of the location of the true line, and if the sheriff be sent to put plaintiff in possession, he has no aid from the judgment of the court. Said Judge Stone: "We submit if there should not be some change of the statute on this subject. Should not a defendant, in a case like the present, have equal right with the plaintiff, who brings him into court, to so plead as to put the question of boundary in issue, and have the jury pass upon it?" The Code Committee of 1907, by amendment of section 3843, provided that in connection with a disclaimer the defendant may suggest that the suit arises over a disputed boundary line and thus cause the true boundary *Page 237 to be adjudicated and marked. Some difficulty under that statute was pointed out by Anderson, C. J., in Howard v. Brannan, 188 Ala. 532, 66 So. 433. A further amendment appears in the Code of 1923, § 7457. Is this not a legislative recognition upon judicial suggestion that the remedy at law was theretofore inadequate in such cases? We turn now to the original jurisdiction in equity to settle uncertain and disputed boundary lines. In Ashurst v. McKenzie,92 Ala. 484, 9 So. 262, it was said: "The jurisdiction of chancery to establish disputed boundaries is ancient and well defined. It does not arise upon any mere dispute as to the location of the boundary between adjacent parcels of land, or even upon a mere dispute as to such location of a confused or obliterated line. There must in addition to all this be some special ground of equitable interposition. Such grounds, it is said, may be predicated of the fraud or neglect of duty of the defendant, whereby the confusion and obliteration has resulted; and where the line is marked upon the surface of the ground, and is plowed over and obliterated for the purposes of a fraudulent insistence that it is elsewhere than at its true location; or by a person having at the time possession of his own and the adjoining parcel, and thus being under a duty of maintaining and preserving the demarkation of the two tracts. 3 Pom. Eq. Jur. 1384-5; Wake v. Conyers, 1 Eden Ch. 227; Rous v. Baker, 4 Town P. C. 660; Speer v. Crowter, 2 Merio, 410-17; Norris' Appeal, 64 Pa. 275; Hill v. Proctor, 10 W. Va. 59; Wetherbee v. Dunne, 36 Cal. 249." Speaking again of this ancient jurisdiction in Guice v. Barr,130 Ala. 570, 30 So. 563, it was declared the jurisdiction will be exercised where the line has been obliterated or confused by act of the defendant in fraud of complainant's rights. Where respondent had sold the land to complainant, failed to point out the line, which had become obliterated, and interfered with a survey of the line by complainant, this was held such fraud as warranted equitable relief. Hays v. Bouchelle, 147 Ala. 212,41 So. 518, 119 Am. St. Rep. 64. In Turner v. De Priest, 205 Ala. 313, 87 So. 370, an agreement fixing the line followed by possession and acquiescence for 30 years, and the death of one of the parties, was held to present an estoppel in equity. The controlling factor in fixing the line was possession under the circumstances disclosed. Statutory provision touching equity jurisdiction in such cases appeared as subdivision 5, section 3052, Code of 1907, reading: "The powers and jurisdiction of courts of chancery extend — * * * "5. To establish and define uncertain or disputed boundary lines." The first case to come before this court under this statute, we believe, was Davis v. Grant, 173 Ala. 4, 55 So. 210. Without discussion the court considered and affirmed a decree on the express ground that a boundary line had been agreed upon and perfected by adverse possession. In later cases, such as Billups v. Gilbert, 195 Ala. 518,70 So. 145, Chappelear v. McWhorter, 204 Ala. 269, 85 So. 386, and Harley v. Chandler, 204 Ala. 207, 85 So. 546, it was recognized that a bill following the statute was sufficient to confer jurisdiction in the absence of demurrer. The rule is well established that if a court has no jurisdiction of the subject-matter, its proceedings are void. The parties cannot by agreement confer jurisdiction in such case. An appeal from such decree will be dismissed. The above decisions cannot be reconciled with the view that a court of equity has no jurisdiction of the subject-matter of settling disputed boundaries; that its jurisdiction must rest alone on an independent equity. These cases are in entire harmony with the rule that where equity has general jurisdiction over the subject-matter, a defect in the bill, in failing to aver such details as good pleading requires to invoke such jurisdiction, must be raised by demurrer. In Goodman v. Carroll, 205 Ala. 305, 87 So. 368, on demurrer, it was held the statute of 1907 was merely declaratory of the common law, that a bill must still aver some special equity, and placed the ruling upon the ground that it would otherwise invade the right of trial by jury. This case was thereafter followed. Thus matters stood until the Act of October 1, 1923, Acts 1923, p. 764. This statute, as last amended, came up for consideration in Jenkins v. Raulston, 214 Ala. 443, 108 So. 47. As appears from the opinion and more fully from the original record, which has been examined, that case involved six or more acres of lands known as "Woodlawn," lying between inclosed lands of adjoining proprietors. The bill was filed in two aspects; one invoking the equity jurisdiction at common law; the special equity relied upon being an estoppel by reason of an agreed boundary line acquiesced in for some 30 years. This court held the trial court in error in sustaining a demurrer to that aspect of the bill. This aspect of the bill, however, was amended, no ruling was made on demurrer thereto, and the trial court held the evidence did not sustain the bill in this aspect. This finding was sustained in this court. The other aspect of the bill was framed under the statute. The bill disclosed that the title to a definite piece of land was involved, set forth the line claimed by complainant, and based claim thereto both on muniments of title and continued possession under claim of ownership. Demurrer challenged the bill on the ground that it involved title to lands; attacked the constitutionality of the statute as a denial of trial by jury. The trial court in his ruling on demurrer held the statute constitutional and overruled the demurrer. The defendant by *Page 238 answer expressly set up adverse possession to the line claimed by him. Much testimony related to alleged adverse possession on both sides. The trial court held upon the evidence that neither party had made out a case of adverse possession to the line claimed by him, that the line must be determined from the muniments of title, and appointed a commission to locate it. Touching this aspect of the case, this court said: "Since the Act of 1923, p. 764, approved October 1, 1923, this subdivision 5 of section 3052, Code of 1907 (now section 6465, Code of 1923), reads: The circuit court in equity matters has jurisdiction: '5. To establish and define uncertain or disputed boundary lines whether the bill contains an independent equity or not.' These words, 'whether the bill contains an independent equity or not,' were added by this act. This bill was filed February 12, 1924, and the decree on the demurrer was rendered on May 1, 1924, after this amendment by the act was written in this section; and it was unnecessary for this bill to allege some facts showing an independent equity. Acts 1923, p. 764, § 1; section 6465, Code of 1923. "But the respondents insist this act of 1923, amending section 3052 of the Code of 1907, is unconstitutional, that it violates section 11 of the Constitution of 1901, which declares that the right of trial by jury shall remain inviolate. This act does not contravene that section of the Constitution. The right to establish and define uncertain or disputed boundary lines belongs to a court of equity. This amendment to the statute does not enlarge the jurisdiction of the court of equity on the subject, but simply does not require an averment of facts in the bill showing an independent equity to render the bill of complaint free from objection by demurrer. Turner v. De Priest, 87 So. 370, 205 Ala. 313; Goodman v. Carroll,87 So. 368, 205 Ala. 305, and authorities supra." In view of the record before the court and assignments of error, it seems apparent this court sustained the statute as applied to a case involving disputed title to a definite tract of land claimed by both parties, and recognized the jurisdiction to try all issues necessary to establish the line between the parties, the manifest purpose of the statute. A former judgment in ejectment was held conclusive of the title to the disputed area; hence, there was no occasion to review the finding of the trial court on the issue of adverse possession. This Jenkins Case was followed by Camp v. Dunnavent, 215 Ala. 78,109 So. 362, saying: "A court of equity has jurisdiction 'to establish and define uncertain or disputed boundary lines, whether the bill contains an independent equity or not.' Code, § 6465, subd. 5. The existence of uncertainty or dispute between adjoining proprietors touching their boundary line gives equity to the bill. The amended statute was intended to meet the decision in Goodman v. Carroll, 205 Ala. 305, 87 So. 368, holding the bill must show some other equity than mere uncertainty or controversy as to the location of the line. Jenkins v. Raulston, 214 Ala. 443, 108 So. 47. "In establishing the true line the court may consider all questions going to that issue, including muniments of title, adverse possession, estoppel, or agreement of parties. The statute aims to furnish a full remedy in equity as to all matters of disputed or uncertain boundary between adjoining lands, affording such incidental or supplemental relief as to do full equity in the premises." The right of trial by jury protected by the Constitution does not include matters within the original jurisdiction of a court of equity. Baader v. State, 201 Ala. 76, 77 So. 370. Did a court of equity have jurisdiction of disputed boundary cases within the meaning of this rule? The rule is general and well recognized that when an equitable cause is presented, the court will, after granting the equitable relief, proceed to do complete equity, and to that end grant incidental relief which may be awarded at law. But the rule is likewise as firmly settled that if the equitable relief sought is denied, the court cannot retain jurisdiction and grant relief available at law. There must be equitable relief as a basis for supplemental relief. Now in disputed boundary cases the sole relief under original chancery powers was to establish, settle, and mark the boundary line in dispute. The special equity in such cases related, not to an independent equitable cause of action calling for separate relief, but to some conduct of the respondent relating to the boundary line tending to work a fraud on complainant, or some matter of estoppel against respondent. No independent relief because of this equity was sought or granted. The aim of the suit and relief granted was and is to settle the lines. The special equity was merely incidental to this main purpose. The substantial matter of jurisdiction, not the incident, should determine the constitutional status of legislation. The court having ancient jurisdiction of the subject-matter, with more adequate procedure to accomplish the end, the statute is designed to make such jurisdiction fully effective. It does not enlarge the power of the court of equity to deal with disputed boundaries, but brings all cases within that power. The court of equity is not wanting in power to try titles to lands, so far as required in granting full equitable relief. As our cases above discussed fully disclose, this power has been freely exercised in boundary line cases under original chancery powers, whether the controversy involves the location of the true line by muniments of title alone, or the issue also involves claims of adverse possession. This is but an application of the principle that equity determines all matters incident to the exercise of its jurisdiction and the *Page 239 granting of relief. The relief in these cases to be effective must establish and settle the line between the parties. As held in Iowa cases, a construction of the statute which would determine only a part of the controversy and leave open to further litigation questions of adverse possession as affecting the boundary line would strip the statute of its usefulness, and make the court of equity an agency for promoting a multiplicity of suits. Williams v. Techantz,88 Iowa, 126, 55 N.W. 202; Lawrence v. Weiss, 163 Iowa, 584,145 N.W. 308. That the Legislature intended this statute to have effect according to its plain language can hardly admit of controversy. There was no occasion to restore the ancient equity jurisdiction. It has never been taken away. We think there is no sound constitutional reason for denying full effect to the statute. We adhere to the decisions in Jenkins v. Raulston and Camp v. Dunnavent, supra, as sound law. In so far as Goodman v. Carroll, 205 Ala. 305, 87 So. 368, holds the Legislature without power to enact the present statute in so far as it involves title to a disputed area, that case is overruled. The bill as amended was not wanting in equity, nor subject to demurrer for failure to aver a special equity; nor was the court of equity without authority to determine all questions, including the issue of adverse possession, essential to a final adjudication and settlement of the true boundary line. The cause was heard upon testimony of witnesses examined in the presence of the trial court. The legal evidence supports the decree granting relief and the line established by commissioners and confirmed by the court. Affirmed. GARDNER, THOMAS, and BROWN, JJ., concur. ANDERSON, C. J., and SAYRE and SOMERVILLE, JJ., concur in result.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3435957/

Appellant's abstract was served on the appellee on March 31, 1938, and filed with the clerk of the supreme court of Iowa on April 2, 1938. The transcript of the record, from which the appellant's abstract was prepared, was not filed in the office of the clerk of the district court of Floyd county, Iowa, the county where the case was tried, for more than six months thereafter. [1] Appellee has filed a motion to dismiss the appeal because the appellant failed to comply with section 12850-gl of the 1935 Code of Iowa which reads as follows: "Shorthand translations — filing. The shorthand reporter's translation of his report of a trial, duly certified by said reporter as correct, and from which an abstract, or an amendment to the abstract, has been prepared and served on appeal, shall be filed with the clerk of the district court immediately after said abstract or amendment is served on the opposite party, and be deemed a public record for the use of all parties to the appeal." This section of the Code was before this court in Goltry v. Relph, 224 Iowa 692, 276 N.W. 614, and First Trust Joint Land Bank v. Abkes, 224 Iowa 877, 278 N.W. 183, wherein we held the provisions of the statute to be mandatory. In those cases we extended the mantle of charity and refused to enforce the provisions because of the fact that the statute had not previously been construed by the court. The first of the cited cases was handed down in December 1937 and, generally speaking, the bar must be cognizant of the pronouncements therein contained. [2] We have no desire to take snap judgment against litigants but statutory regulations and rules promulgated by the court governing the procedure in this court must be observed. We have read the resistance on file and find nothing of a meritorious nature therein excusing noncompliance with the statute. There is a very simple method which could be pursued by the legal profession that would avoid controversies of this character. The first step in preparing the record for an appeal is the obtaining of a transcription of the shorthand reporter's notes and, if this transcript were filed immediately with the clerk instead of waiting until the abstract has been prepared, the *Page 612 question as to whether the transcript was filed in time to comply with this statute would be entirely eliminated. Having construed the statute as mandatory and the transcript not having been filed within such time as to comply with the plain provisions of the statute, the only effective method by which the statutory provisions can be enforced is to dismiss the appeal for want of compliance. Accordingly, the appeal is dismissed. — Appeal dismissed. RICHARDS, STIGER, OLIVER, HALE, BLISS, SAGER, and MILLER, JJ., concur. MITCHELL, C.J., takes no part.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/996453/

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 98-6857 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus THOMAS A. WILKINSON, III, Defendant - Appellant. No. 98-6861 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus EDWARD M. CONK, Defendant - Appellant. Appeals from the United States District Court for the Eastern District of Virginia, at Richmond. Robert R. Merhige, Jr., Senior District Judge. (CR-95-68) Submitted: September 10, 1998 Decided: September 29, 1998 Before MURNAGHAN, MICHAEL, and MOTZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Gerald Thomas Zerkin, GERALD T. ZERKIN & ASSOCIATES, Richmond, Virginia; Paula Marie Junghans, MARTIN, JUNGHANS, SNYDER & BERNSTEIN, P.A., Baltimore, Maryland, for Appellants. David T. Maguire, Assistant United States Attorney, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Appellants appeal from the district court’s order denying their supplemental motion for a new trial based on their allega- tions of newly discovered evidence and the Government’s violation of the disclosure requirements of Brady v. Maryland, 373 U.S. 83 (1963). We have reviewed the record and the district court’s opinion and find no reversible error. Accordingly, we affirm on the reasoning of the district court. United States v. Wilkinson, No. CR-95-68 (E.D. Va. June 4, 1998). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the deci- sional process. AFFIRMED 2

01-03-2023

07-04-2013

https://www.courtlistener.com/api/rest/v3/opinions/2760436/

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 14-2999 ___________ MARY BATJER, Appellant v. AHS HOSPITAL CORP ____________________________________ On Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 2-12-cv-04613) District Judge: Honorable Susan D. Wigenton ____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a) December 12, 2014 Before: FISHER, KRAUSE and VAN ANTWERPEN, Circuit Judges (Opinion filed: December 12, 2014) ___________ OPINION* ___________ PER CURIAM * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Mary Batjer, proceeding pro se, appeals the District Court’s dismissal of her complaint alleging age discrimination by her former employer, AHS Hospital Corp. For the reasons set forth below, we will affirm the District Court’s judgment. Batjer is a 74 year-old woman. She was hired by AHS Hospital Corp. in October 1992 as a Word Perfect specialist. She eventually became a pediatric coordinator and held that position until AHS terminated her employment in February 2011. Batjer claimed that the first signs of age discrimination occurred when she returned from a hip replacement operation several years ago.1 Her supervisor’s part-time secretary, a woman in her mid-20s, had performed Batjer’s duties while she recovered from surgery. When Batjer returned to work, her supervisor often praised his significantly younger secretary for being able to “think outside the box,” while commenting that Batjer was “stuck in the old ways.” She also claimed that he repeatedly asked when Batjer’s other hip would need surgery, and noted what a “big birthday” she was marking on the day she turned 70, though she had never shared her date of birth with him. Batjer claimed that when her supervisor hired a new doctor as an assistant, he developed a plan to get rid of her in order to promote his part-time secretary to the pediatric coordinator position. At some point in 2010, the assistant accused Batjer of 1 The record is unclear on the timing of Batjer’s surgery. The amendment to her complaint stated that the surgery occurred in November 2008. The EEOC charge of discrimination, which was attached to her complaint, stated that it occurred in February 2009. 2 making a racist comment and filed a complaint with the Human Resources Department. Batjer denied the charge. Eight months later, she was fired and the part-time secretary was promoted into the job. Batjer claimed that the manager of the Human Resources Department threatened to block her application for unemployment benefits unless she signed a release waiving her right to bring suit against AHS. Batjer signed the release and received 18 weeks of severance pay. Nine months later, Batjer filed a charge of age discrimination against AHS with the Equal Employment Opportunity Commission. The Commission declined the case and issued Batjer a right-to-sue letter. She then filed this complaint in the District of New Jersey, alleging unlawful discrimination under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623. AHS moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss the complaint. The District Court held a hearing on that motion — and ruling from the bench — granted it with prejudice. The District Court further concluded that a grant of summary judgment to AHS would also be appropriate. Batjer filed a timely notice of appeal. We have jurisdiction under 28 U.S.C. § 1291. As the District Court rightly recognized, we must consider first and foremost whether the release Batjer signed is valid. In her complaint, Batjer stated that AHS forced her to sign the waiver by threatening to block her unemployment benefits if she failed to do so. Waivers signed under duress may be ineffective. See generally, 25 Am. Jur. 2D Duress and Undue Influence § 26 (2014). However, at the hearing before the 3 District Court, Batjer explained that she signed the release simply so she could move on with her life. In light of Batjer’s statement, the District Court concluded that the release was signed knowingly and voluntarily. That conclusion is bolstered by the fact that Batjer waited over two weeks before she signed the agreement, during which time she consulted two attorneys.2 Although we have taken a generous view about what may be considered by a court entertaining a Rule 12(b)(6) motion — see, e.g., In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) — the District Court may have exceeded those limits here when it relied on statements made by Batjer at its hearing. We need not decide that issue, however, because the District Court alternatively ruled that Batjer’s complaint could not survive the summary judgment standard. See De Tore v. Local No. 245, 615 F.2d 980, 983 (3d Cir. 1980). We endorse that conclusion.3 Given the circumstances surrounding Batjer’s adoption of the release — including the passage of time, the consultation with counsel, and what she herself has described as her simple 2 The passage of time and consultation with counsel undermine a finding of duress. See, e.g., Coventry v. U.S. Steel Corp., 856 F.2d 514, 525 n.13 (3d Cir. 1988). 3 “Summary judgment is appropriate when there are no genuine issues of material fact and, viewing the evidence in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law.” Wastak v. Lehigh Valley Health Network, 342 F.3d 281, 285 (3d Cir. 2003). Our review of a district court’s grant of summary judgment is plenary. See id. For reasons made clear in the text, any error in the District Court’s invocation of summary judgment was harmless under the circumstances presented. See In re Rockefeller Ctr. Props., Inc. Sec. Litig., 184 F.3d 280, 287-89 (3d Cir. 1999). 4 desire to move on — it is evident that her waiver was knowing and voluntary. See Wastak v. Lehigh Valley Health Network, 342 F.3d 281, 294-95 (3d Cir. 2003). In her opposition to the motion to dismiss, Batjer further argued that the waiver was ineffective because it did not comply with the Older Workers Benefit Protection Act (OWBPA), 29 U.S.C. § 626(f). The OWBPA is an amendment to the ADEA implementing a statutory stricture on waivers of age discrimination claims. See Oubre v. Entergy Operations, Inc., 522 U.S. 422, 426-28 (1998). Specifically, it provides a number of factors that must be fulfilled for waivers of ADEA claims to be considered knowing and voluntary. The separation agreement at bar fulfills each of the relevant factors. See 29 U.S.C. § 626(f)(1)(A)-(G).4 In sum, Batjer’s release of claims against AHS was knowing, voluntary, and enforceable, and as the District Court concluded, it stands as an insuperable barrier to her complaint. See Wastak, 342 F.3d at 294-95. Accordingly, we will affirm the judgment of the District Court. The motion requesting oral argument is denied. 4 Batjer appears to argue that the release had to comply with the OWBPA factors relating to waivers of claims by employees who were terminated in an employer’s group discharge program. Because the record does not demonstrate any such group discharge program, the reduction-in-force factors do not apply here. Cf. Oberg v. Allied Van Lines, Inc., 11 F.3d 679, 682 (7th Cir. 1993) (company’s termination program under which over sixty employees were discharged at once constituted a reduction in force, triggering particular provisions of the OWBPA). 5

01-03-2023

12-12-2014

https://www.courtlistener.com/api/rest/v3/opinions/2892501/

NO. 07-04-0526-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL E APRIL 11, 2005 ______________________________ IN THE INTEREST OF M.A. AND B.A., CHILDREN _________________________________ FROM THE 237 TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2000-509,361; HONORABLE MARVIN MARSHALL, JUDGE _______________________________ Before REAVIS and CAMPBELL, JJ. and BOYD, S.J. (footnote: 1) MEMORANDUM OPINION This is an appeal from an order following a bench trial terminating the parent-child relationship between M.A. and B.A., minor children, and their mother, Kathy Jo Lee Allen.  By her single issue, Allen challenges whether the evidence presented at trial was legally and factually sufficient to support the trial court’s findings.  We affirm. Kathy Allen is the mother of two children, M.A., age ten, and B.A., age eight.  Allen was married to the children’s father, Danny Jack Allen, for seven years.  Since 1991, Danny has been convicted of various crimes, including felony theft, criminal mischief, and felony possession with intent to manufacture methamphetamine.  In June 2000, Allen divorced Danny and received custody of the children. At time of trial, Danny was incarcerated.  He has since executed a voluntary affidavit of relinquishment terminating his parental rights and is not a party to this appeal.    Following the divorce, Allen and her children continued to live in the home while she dated Jimmy Don Perrin. (footnote: 2)  During this time, Allen admits that she frequently argued with Perrin in the children’s presence and often consumed alcohol to the point of intoxication.  In November 2002, Allen was arrested for driving with a suspended license and misdemeanor forgery, for which she is currently serving two years probation. (footnote: 3)  In December 2002, the children stayed with Allen’s sister, Linda Williams.  While visiting the children, Allen was arrested for driving with a suspended license and possession of drug paraphernalia.  Soon after, Williams contacted the Texas Department of Family and Protective Services (the Department) with concerns about Allen’s behavior and her supervision of the children. The Department began conducting its initial investigation after Allen was released from jail.  Although reluctant to participate or assist in the investigation, Allen did agree to a safety plan prohibiting Perrin from contacting the children until the Department could address safety concerns.  Still, Allen continued to allow Perrin to visit the residence, and the children informed caseworkers that they were witness to several incidents of domestic violence.  The children related to caseworker Leslie Struck how Perrin would sometimes throw and destroy items in the home and that they witnessed Allen kicking Perrin with her boots. They also described how after one argument Perrin physically restrained Allen to the bed bounding her with “zip-ties.” (footnote: 4) In March 2003, Allen was again arrested for driving with a suspended license.  As a result, the children were forced to stay the weekend with their father, Danny, and his girlfriend, Heather Stephens, who, at that time, were under investigation for the manufacture and trafficking of methamphetamines.  The children were returned to their mother’s care when she was released from jail the following week.  Shortly thereafter, caseworker Struck smelled a strong scent of ammonia coming from the children’s home causing her to suspect that the occupants were involved in the illegal manufacture of methamphetamines.  On April 11, 2003, after Allen refused to submit to drug tests as required by the safety plan, the Department arranged for the children to be placed with their maternal aunt Trish McWright in Lubbock and requested that Allen not visit them without supervision.  Soon thereafter, Allen went to the residence and threatened McWright in front of the children.  As a result, McWright refused to continue to care for the children, and on April 14, 2003, they were removed and placed in the custody of the State.  The Department filed its petition for termination of parental rights on April 15, 2003.   In early 2004, the Department began family reunification efforts in an attempt to allow the children to return to their mother’s custody.  Allen attended therapy sessions and made efforts to maintain meaningful employment.  However, in drug tests administered on January 8, January 21, May 10, and August 9, Allen tested positive for methamphetamines.  The positive tests were in violation of her probation and her visitation rights with her children were suspended.  Allen admits that she did not seek treatment for her drug addiction until the week before the final hearing in September 2004.  At time of trial, the children had been in the custody of the State for 17 months. On October 15, 2003, following a non-jury trial, the court terminated Allen’s parental rights under section 161.001 of the Texas Family Code by finding clear and convincing evidence that: (1) she knowingly placed or allowed the children to remain in conditions or surroundings which endangered their physical or emotional well-being; (2) she engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered their physical or emotional well-being; and (3) termination of the parent-child relationship was in the best interest of the children.  By her only issue, Allen contends the evidence is legally and factually insufficient to terminate her parental rights.  We disagree. Review of Termination Proceedings The natural right existing between parents and their children is of constitutional dimensions.   Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).  Consequently, termination proceedings must be strictly scrutinized.  In re G.M., 596 S.W.2d 846, 846 (Tex. 1980).  However, while parental rights are of constitutional magnitude, they are not absolute.  In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).  Just as it is imperative for courts to recognize the constitutional underpinnings of the parent-child relationship, it is also essential that emotional and physical interests of the child not be sacrificed merely to preserve that right.   Id.  A termination decree is complete, final, irrevocable, and divests for all time that natural right as well as all legal rights, privileges, duties, and powers with respect to each other except for the child’s right to inherit.   Holick , 685 S.W.2d at 20.  In proceedings to terminate the parent-child relationship under section 161.001 of the Family Code, the petitioner must establish one or more acts or omissions enumerated under subsection (1) of the statute, and must additionally prove that termination of the parent-child relationship is in the best interest of the child.   Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976).   Though the same evidence may be probative of both issues, both elements must be established and proof of one element does not relieve the petitioner of the burden of proving the other.   See id .; In re C.H. , 89 S.W.3d at 28. We turn now to the standards of review for challenges to sufficiency of the evidence in termination proceedings.  Because Rule 296 of the Texas Rules of Civil Procedure provides for requests for findings of facts and conclusions of law in any case, we must first consider the appropriate standard of review of a judgment following a non-jury trial where the trial court did not make any findings of fact or conclusions of law and a reporter’s record has been provided. (footnote: 5)  In such case, the appellate court presumes the trial court found all fact questions in support of its judgment and must affirm that judgment on any legal theory supported by the pleadings and evidence.  Point Lookout West, Inc. v. Whorton, 742 S.W.2d 277, 278 (Tex. 1987).  When a reporter’s record has been provided, the implied findings may be challenged for legal and factual insufficiency “the same as jury findings or a trial court’s findings of fact.”  Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989).   Because termination of parental rights is of such weight and gravity, due process requires the petitioner to justify termination by clear and convincing evidence.  T ex. Fam. Code § 161.001; In re G.M. , 596 S.W.2d at 847.  This standard has been defined as “whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State’s allegations.” In re C.H. , 89 S.W.3d at 25.  Although this standard is higher than traditional sufficiency standards of review, an appellate court must not be so rigorous that the only findings that withstand its review are those established beyond a reasonable doubt.   Id. at 26.  In this regard, in considering whether the evidence is factually sufficient to support the implied findings, we must determine whether the evidence is such that a reasonable factfinder could form a firm belief or conviction about the truth of the Department's allegations.   See id. at 25 .   If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient.  In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002) .   When reviewing the legal sufficiency of the evidence to support an order terminating parental rights, we look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true.   Id.  Thus, we disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible.   Id .  W e will affirm the termination order if there is both legally and factually sufficient evidence on any statutory ground upon which the trial court relied.   See, e.g. , In re S.F., 32 S.W.3d 318, 320 (Tex.App.–San Antonio 2000, no pet.). Analysis We first review the sufficiency of the evidence under section 161.001(1) (D) and (E), as to whether Allen knowingly placed or allowed her children to remain in conditions or surroundings which endangered their physical or emotional well-being or whether she engaged in conduct or knowingly placed her children with persons who engaged in conduct which endangered their physical or emotional well-being .  We begin by noting that the record does not reflect any actual physical harm or abuse to the children resulting from Allen’s conduct or the conditions in which they lived.  This is not to say, however, that the potential for such harm did not exist. On appeal, Allen contends there is no evidence that the children were placed in a dangerous situation or that the children were placed with persons who were presently engaging in conduct that could jeopardize their welfare.  We disagree.  There was testimony from several witnesses, including Allen, as to the domestic violence that occurred in the home between she and Perrin.  These altercations involved the throwing and destruction of household objects, in addition to physical assault.  Although Allen insists that she has ended her relationship with Perrin, evidence suggests she has continued to have contact with him since the children were removed from the home.  There is also evidence that the children were exposed to the use, manufacture, and delivery of methamphetamines. Witnesses testified as to the smell of ammonia emanating from the home and observed numerous individuals arriving at and leaving the property in a matter of minutes.  On one occasion, the children stayed with their father and his girlfriend in a hotel while they were the subject of an ongoing investigation for the manufacturing and trafficking of methamphetamines.  Furthermore, Allen has admitted that she is a methamphetamine addict and testified as to her difficulties in overcoming this addiction.  We find these circumstances, combined with the fact that Allen has been reluctant to seek assistance, sufficient to allow a factfinder to reasonably conclude that she endangered her children’s physical well-being and raises doubt as to her ability to provide her children a safe environment in which to live.  Just as importantly, Allen’s choice of lifestyle has also had a negative impact on the emotional welfare of her children.  Allen’s conduct need not cause physical injury as a termination of the parent-child relationship may be based on emotional endangerment alone.   In re S.H.A., 728 S.W.2d 73, 83-84 (Tex.App–Dallas 1987, writ ref’d n.r.e). It is clear from the record that both children, ages 10 and 8,  were consciously aware of their mother’s drug and alcohol abuse and even attributed their mother’s conduct to that fact.  When asked about the children’s ability to comprehend their mother’s problems, their guardian ad litem stated that “they were just like sponges” and that “they soaked it all in.”  Doctor Wilbanks, a counselor and family therapist, testified that when Allen would fail to show up for visits, the children expressed disappointment and anger and asserted that it was probably due to their mother’s drug use.  The children also informed caseworkers that Allen repeatedly instructed them not to discuss with anyone about what was going on in the home or they would be taken away. As a consequence of Allen’s conduct, both children are exhibiting behavioral problems and show signs of severe depression, especially M.A.  Applying the appropriate standards of review, we find the evidence to be legally and factually sufficient so as to enable a factfinder to reasonably form a firm conviction or belief that Allen endangered the physical and emotional well-being of her children. We now turn our focus to whether termination of the parent-child relationship is in the best interest of the children.   See § 161.001(2).  We begin with the presumption that the best interest of a child is usually served by preserving the parent-child relationship.  Wilson v. State, 116 S.W.3d 923, 929 (Tex.App.–Dallas 2003, no pet.).  In deciding the best interest of a child, we consider several factors including: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals; (6) the plans for the child by these individuals; (7) the stability of the home; (8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent.   Holley , 544 S.W.2d at 371-72.  These factors are not exhaustive; some listed factors may be inapplicable to some cases, while other factors not on the list may also be considered when appropriate.   In re C.H. , 89 S.W.3d at 27.  Furthermore, undisputed evidence of one factor may be sufficient in a particular case to support a finding that termination is in the best interest of the child.   Id .  On the other hand, the presence of scant evidence relevant to each Holley factor will not support such a finding.   Id .  Evidence that proves one or more statutory grounds for termination may also constitute evidence illustrating that termination is in the child's best interest.   See id . at 28.  In any case, there must be evidence from which a factfinder could reasonably have formed a firm conviction or belief that the child's best interest warranted termination.  In re D.S.A., 113 S.W.3d 567, 574 (Tex.App.--Amarillo 2003, no pet.). It is undisputed that the Allen children have feelings toward their mother, and at least one of the children, B.A., has expressed some desire to return to her mother.  Nonetheless, Dr. Wilbanks testified that both children seek a stable environment and become angered at their mother’s drug usage.  The evidence shows that Allen has repeatedly struggled to overcome her addiction to methamphetamine, only to relapse due to a lack of commitment and irresponsible behavior.  The record also makes clear that Allen was aware of the possibility of recovery and was informed that drug usage would impair her ability to get her children back.  She was offered assistance in this regard from the State, as well as from family and friends who knew of her struggles.  Despite this, Allen continuously failed to make choices in the best interest of her children.  Despite the fact that Allen now admits she needs help and has “taken steps to get herself admitted,” the evidence does not suggest a willingness to commit to raising her children in a safe and suitable environment. Furthermore, Dr. Hoke, a clinical psychologist, expressed concern as to whether Allen would ever be able to lead a stable lifestyle and be an appropriate parent.  Allen argues that one or both of the children may not be adoptable and that “leaving them in that kind of limbo is no permanency.”  Although a lack of evidence about plans for permanent placement and adoption is relevant to best interest, it cannot be the dispositive factor.   In re C.H. , 89 S.W.3d at 28.  Doctor Wilbanks testified to the children’s multitude of behavioral problems and, based on her interaction with the family, she feels that termination of Allen’s parental rights would be in the best interest of both children, as they need resolution and a permanent home. Although Allen maintains that her conduct and surroundings never jeopardized the emotional well-being of her children, the bulk of the evidence suggests that these children, being of such an impressionable age, will continue to develop further emotional and behavioral problems if returned to a culture of drug abuse and apathy.  We agree with Allen’s contention that just because a parent is not the very best parent does not mean that the parent’s behavior rises to the level of termination.  Unfortunately, Allen’s indifference towards the emotional and physical welfare of her children rises above that of simply bad parenting.  Having carefully reviewed the record, we conclude that there is legally and factually sufficient evidence to support the trial court’s finding that termination of Allen’s parental rights under section 161.001(2) is in the best interest of the children.  Allen’s sole issue is overruled. Accordingly, the trial court’s order of termination is affirmed. Don H. Reavis     Justice                       FOOTNOTES 1:John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. 2:It is unclear as to whether anyone other than Allen and her children resided in the home.  There is some evidence in the record which suggests that Perrin and another man, Bobby Stephens, occupied the home for various periods of time. 3:Allen testified that she was initially charged with tampering with government records after she signed her sister’s name on a traffic ticket.  On February 6, 2004, she pled guilty to a reduced charge of misdemeanor forgery and began serving her probation. 4:The children informed caseworker Struck that Perrin also threatened Allen with a “torch with fire,” leading them to believe that their mother would be tortured. 5:Findings of fact and conclusions of law were not requested by either party.

01-03-2023

09-07-2015

https://www.courtlistener.com/api/rest/v3/opinions/2896290/

NO. 07-08-0033-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A DECEMBER 18, 2008 ______________________________ DAVID SOLIS, APPELLANT v. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 137TH DISTRICT COURT OF POTTER COUNTY; NO. 2007-417,788; HON. CECIL G. PURYEAR, PRESIDING _______________________________ Before CAMPBELL, HANCOCK and PIRTLE, JJ. MEMORANDUM OPINION           Appellant, David Solis, appeals his convictions and sentences for two counts of aggravated assault with a deadly weapon and one count of assault on a family member. Appellant was sentenced to 15 years incarceration in the Texas Department of Criminal Justice, Institutional Division, for each of the aggravated assault with a deadly weapon convictions and was sentenced to 10 years incarceration for the assault on a family member conviction. Each of these sentences are to run concurrently. We affirm. Background           On or about January 3, 2007, appellant and his girlfriend, Fransisca Ramirez, got into an argument. As the argument escalated, appellant began hitting Ramirez with his hands. He, subsequently, began hitting her with a belt buckle that was attached to the end of a belt. Appellant’s use of the belt and belt buckle caused scratching, cutting, and bruising on Ramirez’s torso, arms, and legs. After things started to calm down, appellant pulled out a small knife and held it against Ramirez’s neck. The following morning, appellant again started hitting Ramirez with the belt buckle and belt. Following these events, Ramirez went to work and, later that afternoon, went to visit her mother, where a family member called the police.           At trial, the officer that responded to the call, Joe Pinson, testified. Pinson testified that he was a certified police officer with the Slaton Police Department for 13 years. He testified that he spoke with Ramirez about the incident in the afternoon following its occurrence and photographed her injuries. Based on information he received from Ramirez as well as his personal observation of Ramirez’s injuries, Pinson testified about the manner in which appellant had used the belt and belt buckle. Over appellant’s objection, Pinson testified that a belt and belt buckle used in the manner in which appellant used them would be considered a deadly weapon.           By one issue, appellant challenges the judgment. Appellant’s sole issue contends that the trial court erred in overruling appellant’s objection that Pinson testified as an expert witness regarding what constitutes a deadly weapon without the State designating Pinson as an expert witness in accordance with the trial court’s local rules. Analysis           Appellant contends that the trial court erred in overruling his objection to Pinson testifying as an expert when the State failed to provide notice of its intent to offer his expert testimony, as required by the local rules of the court. According to appellant’s brief, under “the local rules of the 137th District Court of Lubbock County[,] both Defense and Prosecution are required to give notice to the other if they plan to call an expert witness to the stand during trial.” However, appellant does not provide a verifiable citation to this purported local rule and no copy of the purported local rule is included in the record or attached to appellant’s brief. Our review of the local rules applicable to the Lubbock County District Courts does not include any rule which requires designation of expert witnesses. See Local Administrative Rules of the District Courts and County Courts-At-Law of Lubbock County, Texas, http://www.co.lubbock.tx.us/DClerk/PDF/localrules.pdf; Local Procedural Rules, Criminal Cases, Lubbock County, Texas (2004), http://www.co.lubbock.tx.us/DCrt/PDF/LocalProceduralRules.pdf; Lubbock County Local Fair Defense Act Plan and Rules Sections of the Local Administrative Rules (2004), http://www.co.lubbock.tx.us/DCrt/PDF/FairDefenseActAmen.pdf. Without substantive argument or supporting authorities, an issue cannot be adequately evaluated, and will be overruled. Tex. R. App. P. 38.1(h); Lagrone v. State, 942 S.W.2d 602, 614 (Tex.Crim.App. 1997). As appellant’s sole citation to supporting authority is to a purported local rule that cannot be verified by this Court, we overrule appellant’s issue.           We are, however, mindful that the Texas Code of Criminal Procedure provides, On motion of a party and on notice to the other parties, the court in which an action is pending may order one or more of the other parties to disclose to the party making the motion the name and address of each person the other party may use at trial to present evidence under Rules 702, 703, and 705, Texas Rules of Evidence. The court shall specify in the order the time and manner in which the other party must make the disclosure to the moving party . . . .  Tex. Code Crim. Proc. Ann. art. 39.14(b) (Vernon 2005). The objection appellant raised at trial to Pinson’s testimony was that, “He wasn’t designated, based on the Court’s order that they designate their experts, if he is going to make an expert opinion as to what is or is not a deadly weapon. And I would object to that for lack of notice.” However, a review of the clerk’s record reveals neither a motion for identification of expert witnesses nor an order from the trial court requiring the State to designate expert witnesses. Thus, there is nothing in the record to indicate that the State was under any obligation to designate any expert witness that it intended to call at trial.           However, even were we to find that the trial court’s ruling was in error because it violated a local rule, trial counsel objected on the basis that Pinson’s testimony violated a prior order of the trial court. If the complaint on appeal does not correlate to the objection made at trial, the complainant has not preserved error. Tex. R. App. P. 33.1(a); Thomas v. State, 723 S.W.2d 696, 700 (Tex.Crim.App. 1986). Because appellant’s argument on appeal does not comport with the objection raised at trial, any error in the State’s failure to designate Pinson as an expert witness was not preserved. Conclusion           For the foregoing reasons, we overrule appellant’s sole issue.   Mackey K. Hancock Justice Do not publish. Hidden="false" UnhideWhenUsed="false" Name="Dark List Accent 3"/> NO. 07-09-0373-CV   IN THE COURT OF APPEALS   FOR THE SEVENTH DISTRICT OF TEXAS   AT AMARILLO   PANEL E   SEPTEMBER 27, 2010     In the Interest of A.S., a Child ___________________________   FROM THE 316th DISTRICT COURT OF HUTCHINSON COUNTY;   NO. 38,213; HONORABLE JOHN LAGRONE, PRESIDING     Memorandum Opinion     Before QUINN, C.J., CAMPBELL, J., and BOYD, S.J.[1]   Tammy Lea Smith (Smith) appeals the termination of her parental rights to her five-year-old daughter A.S. by attacking the sufficiency of the evidence underlying the findings with regard to the child’s best interest and the various statutory grounds alleged.  We affirm.             We initially observe that Smith failed, in both her motion for new trial or statement of points on appeal, to allege that the evidence was either legally or factually insufficient to support a finding that termination was in the child’s best interest.  Thus, those complaints were not preserved for review.  See In re C.M., 208 S.W.3d 89, 92 (Tex. App.–Houston [14th Dist.] 2006, no pet.).               Next, the trial court found by clear and convincing evidence that termination was warranted under §161.001(1)(D), (E), (I), and (O) of the Texas Family Code.  If there be sufficient evidence to support the existence of any one  of those grounds, then we must affirm its decision.  In re K.C.B., 280 S.W.3d 888, 894-95 (Tex. App.–Amarillo 2009, pet. denied).              Next, the record before us contained the following evidence.  Smith had been a long-time abuser of drugs, that is, marijuana, methamphetamine, and cocaine.  Each hair follicle drug test she took during the eighteen months that her daughter was in foster care came back positive.  She further admitted to using marijuana and methamphetamine less than thirty days prior to trial.  Smith also admitted to being arrested numerous times for possessing drugs, shoplifting, or public intoxication.  So too has she been jailed at least six times since A.S. was born.  Appellant also moved frequently, once had been evicted from her abode due to her drug use, lacked electricity in one home, lived a nomadic life with friends, lost a job due to drug use, and lived with a boyfriend with whom she used drugs.  The latter was also a violent individual and physically abused Smith.  According to A.S., her mother’s boyfriend was responsible for a cut lip and a mark across her back.  Other men with whom Smith had lived were also abusive.  And, though she claimed that she was employed with a “private” lady, appellant failed to provide proof of employment to Child Protective Services.  Next, it appeared that A.S. spent most weekends with her purported grandparents, one of which described the child as being dirty and hungry whenever they picked her up.  The house in which the child lived with her mother was further described as smelling of marijuana.  A grandparent also testified that Smith oftimes could not be awakened when the child was returned home.  Additionally, A.S. told others that she was afraid of her mother, that her mother would leave her alone, and that she feared her mother’s boyfriend.  A.S. also asked her foster mother if her husband was going to cut her clothes with a knife, if he was going to throw the foster mother’s possessions out of the window, and why he did not hit the foster mother and her other children.             Other evidence illustrated that Smith failed to complete her parenting classes or counseling.  So too did a psychologist conclude that Smith had poor parenting skills and would have difficulty caring for a five-year-old child.  Finally, Smith admitted that she was unable to care for the child.  All of this constitutes clear and convincing proof that the child’s surroundings and environment endangered A.S.’ physical and emotional well-being.  Thus, the trial court had ample evidence to support termination under that ground.  See Tex. Fam. Code Ann. §161.001(1)(D) (Vernon Supp. 2010) (termination may be warranted when a parent knowingly placed or knowingly allowed a child to remain in conditions or surroundings which endangered the physical or emotional well-being of the child).                Accordingly, we overrule Smith’s issues and affirm the termination order.                                                                                        Brian Quinn                                                                                     Chief Justice [1]John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.  Tex. Gov’t Code  Ann. §75.002(a)(1) (Vernon 2005).Â

01-03-2023

09-08-2015

https://www.courtlistener.com/api/rest/v3/opinions/996427/

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 98-599 In Re: RONALD MCGILL, Petitioner. On Petition for Writ of Mandamus. (CA-98-272-5-F-3) Submitted: September 10, 1998 Decided: September 22, 1998 Before MURNAGHAN, MICHAEL, and MOTZ, Circuit Judges. Petition denied by unpublished per curiam opinion. Ronald McGill, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Ronald McGill has filed a petition for a writ of mandamus seeking to have this court compel the District Court for the Eastern District of North Carolina to either issue a writ of habeas corpus or grant his motion for either a temporary restraining order or a preliminary injunction. Mandamus is a drastic remedy to be used only in extraordinary circumstances. See Kerr v. United States Dist. Court, 426 U.S. 394, 402 (1976). Because McGill’s habeas corpus petition has been transferred to the District Court for the District of South Carolina, his petition for mandamus relief is moot. Accordingly, although we grant McGill’s motion to proceed in forma pauperis, we deny his petition for mandamus relief. We also deny McGill’s motions for a temporary restraining order and/or a preliminary injunction, to dispense with the requirement of a secu- rity bond, and for appointment of counsel. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. PETITION DENIED 2

01-03-2023

07-04-2013

https://www.courtlistener.com/api/rest/v3/opinions/4539903/

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, ) No. 79652-6-I ) Respondent, ) DIVISION ONE ) v. ) ) WILLIAMS, ALLEN JAMES, ) UNPUBLISHED OPINION DOB: 08/08/1976, ) ) Appellant. ) BOWMAN, J. — Allen James Williams was convicted of driving under the influence of drugs (DUI), escape in the third degree, and six counts of domestic violence felony violation of a no-contact order (VNCO) following a bench trial. He argues that insufficient evidence supports five of the VNCO convictions. He also contends that the court imposed a clearly excessive exceptional sentence and that the terms of community custody cause his sentence to exceed the statutory maximum on all but one of the VNCO counts. We conclude that sufficient evidence supports Williams’ convictions and that his sentence is not clearly excessive. But we remand for the court to either amend the community custody terms or resentence within the statutory maximum on all but one count of domestic violence felony VNCO. Citations and pin cites are based on the Westlaw online version of the cited material. No. 79652-6-I/2 FACTS On the evening of December 29, 2017, Washington State Patrol Trooper John Axtman pulled over a gray Mazda driven by Williams for failing to stop at a stop sign. Williams’ girlfriend April Jensen sat in the front passenger seat of the car. Williams told Trooper Axtman that he was violating an active no-contact order by being with Jensen. Trooper Axtman conducted a records check and confirmed the existence of a court order protecting Jensen from Williams. Trooper Axtman noticed signs of intoxication. Williams admitted he used drugs earlier that day and the day before. Trooper Axtman asked Williams to perform field sobriety tests and concluded Williams was driving while under the influence of drugs. He arrested Williams for DUI and VNCO. Trooper Axtman drove Williams to the hospital for a blood test. After the blood draw, Williams ran from the emergency room. Hospital security eventually caught Williams “on the other side of the hospital.” The results of the blood test showed Williams tested positive for amphetamine, methamphetamine, and morphine. Trooper Axtman booked Williams into the Snohomish County jail. While in jail, Williams continued to contact Jensen in violation of the no- contact order. Jail telephone logs show that between December 29, 2017 and May 18, 2018, Williams made 1,374 calls to the telephone number associated with Jensen. Of these, 67 calls were “completed.” The State charged Williams with one count of DUI, one count of escape in the third degree, and six counts of domestic violence felony VNCO. One of the VNCO counts was for being in the car with Jensen the night of his arrest and the 2 No. 79652-6-I/3 other five counts were for the calls he made to Jensen from jail. Williams waived his right to a jury trial. Jensen refused to appear to testify at trial. The State played the video and audio recording of Trooper Axtman’s contact with Williams during the traffic stop and his arrest. The recording includes a conversation between Trooper Axtman and Jensen. Trooper Axtman identified the voice on the jail call recordings as that of Jenkins. The court also admitted into evidence the completed calls Williams made from jail to the phone number associated with Jensen. Victim advocate Shervin Sima testified that she had called the same number Williams dialed from jail at least four times and each time Jensen answered. Williams testified that he had not spoken to Jensen since the night he was arrested. He claimed that the telephone number and the female voice in the recorded jail calls belonged to his other girlfriend “Erin Williams.” The court convicted Williams as charged. The court entered extensive findings of fact and conclusions of law. The court imposed a concurrent suspended sentence of 363 days for the misdemeanor convictions of DUI and third degree escape. With an offender score of 19, including nine prior convictions for domestic violence VNCO between 2005 and 2019, the standard sentence range for each count of felony VNCO was “60-60 months.” The court imposed an exceptional sentence above the standard range of 90 months total confinement—60-month concurrent sentences for five counts of domestic violence felony VNCO and a consecutive 30-month sentence for the sixth count. 3 No. 79652-6-I/4 The court entered findings of fact and conclusions of law in support of the exceptional sentence. The court also imposed 12 months of community custody on each VNCO conviction. Williams appeals. ANALYSIS Sufficiency of the Evidence Williams concedes the evidence supports one count of felony VNCO because Trooper Axtman saw Jensen in the front passenger seat of Williams’ car on December 29, 2017. Williams argues that insufficient evidence supports the other five VNCO convictions as to the jail telephone calls. When assessing whether sufficient evidence supports a conviction, we view the evidence in the light most favorable to the State and determine whether any rational fact finder could have found the elements of the crime beyond a reasonable doubt. State v. Homan, 181 Wn.2d 102, 105, 330 P.3d 182 (2014). Following a bench trial, we determine whether substantial evidence supports the trial court’s findings of fact and whether the findings in turn support the conclusions of law. State v. Stevenson, 128 Wn. App. 179, 193, 114 P.3d 699 (2005). Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the truth of the finding. Stevenson, 128 Wn. App. at 193. Unchallenged findings are verities on appeal. State v. Solomon, 114 Wn. App. 781, 789, 60 P.3d 1215 (2002). We review conclusions of law de novo. Stevenson, 128 Wn. App. at 193. In claiming insufficient evidence, the defendant admits the truth of the State’s evidence and all reasonable inferences drawn therefrom. State v. 4 No. 79652-6-I/5 Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We defer to the trier of fact to resolve conflicting testimony and evaluate the persuasiveness of the evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004). “ ‘Circumstantial evidence and direct evidence are equally reliable’ in determining the sufficiency of the evidence.” State v. Kintz, 169 Wn.2d 537, 551, 238 P.3d 470, 477 (2010) (quoting Thomas, 150 Wn.2d at 874). But inferences based on circumstantial evidence must be reasonable and cannot stem from speculation. State v. Scanlan, 193 Wn.2d 753, 771, 445 P.3d 960, 968 (2019). A person commits the crime of felony VNCO when the person knows of an existing order, knowingly violates that order, and “has at least two previous convictions for violating the provisions of” a no-contact order. RCW 26.50.110(1)(a), (5). Here, there is no dispute that Williams knew of an existing order prohibiting him from contacting Jensen and that he had at least two prior VNCO convictions. Williams contends that the evidence at trial is insufficient to establish beyond a reasonable doubt that he knowingly violated the no-contact order while he was in jail. He argues that the court “speculated” that the voice on the recorded telephone calls belonged to Jensen.1 He challenges several of the trial courts findings of fact, including: 16. The Court finds that “Erin” was created so that the Defendant and Ms. Jensen could communicate, or attempt to communicate, in violation of the no contact order. 26. In [jail telephone] call [number 22 made on January 20, 2018], the Defendant referenced telling Trooper Axtman he thought the restraining order was dropped. The female responded by 1Williams cites various scientific articles that discuss the reliability of voice recognition testimony. However, as Williams did not raise these issues at the trial court, we do not consider them on appeal. RAP 2.5(a); State v. Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007). 5 No. 79652-6-I/6 saying, [“]I thought you did not want me to do that.” Only April Jensen had a restraining order. There would have been no reason why Erin would have [made] such a comment since Erin did not have a restraining order with the Defendant. 29. April Jensen was the only one that had the no contact order and the only one that would have sought to have it modified or removed, not Erin Williams.[2] We conclude that substantial evidence supports the court’s findings. A jail receptionist and records custodian identified the telephone number that Williams dialed for each count of VNCO. Victim advocate Sima testified that she dialed the same number several times and each time, the person who answered the phone identified herself as Jensen. Trooper Axtman testified that he recognized the female voice on each of the calls and that the voice belonged to Jensen. Trooper Axtman also testified that ”there’s little bits of information” in the calls “that only [Jensen] would technically know” because she was at the scene of Williams’ arrest, such as conversations about confiscating Williams’ cell phone and details about the traffic “stop itself,” the field sobriety tests, and impounding Williams’ car. After reviewing all of the evidence, the court concluded there was “no reasonable doubt” that the “distinctive” voice on the calls “was April Jensen and was not Erin Williams.” Further, the content of many of the calls made clear that Williams was talking to Jensen rather than “Erin.” For example, Williams conceded that 2 Williams also challenges findings of fact 34 and 40. He argues that they are actually conclusions of law. Where the court erroneously labels a conclusion of law as a finding of fact, we review it de novo as a conclusion of law. State v. Z.U.E., 178 Wn. App. 769, 779, 315 P.3d 1158 (2014); see State v. Fedorov, 183 Wn. App. 736, 744, 335 P.3d 971 (2014) (“We review findings of fact and conclusions of law not as they are labeled, but for what they truly are.”). But because Williams challenges only the labeling of the conclusions, not their sufficiency, we do not address them. See RAP 10.3(a)(6). 6 No. 79652-6-I/7 Jensen was “the only person [he] had a no-contact order with at the time of this incident.” In one of the recorded calls, he talks specifically about dropping the no-contact order. He tells Jensen, “The ball is in your court” and to “just get on it will [you] please.” In another recording, Williams states he told Trooper Axtman that he thought the no-contact order had been dropped. Jensen responds, “I thought you did not want me to do that.” Finally, the unchallenged findings establish that Williams often referred to “Erin” in the third person during the calls with Jensen and that Jensen was sometimes confused about who Williams was talking about. For example, during one of the calls, Williams told Jensen, “That chick told me she had that restraining order dropped.” Jensen was “clearly confused.” Williams attempted to refocus her by saying, “You picking up what I’m putting down?” Jensen responded, “Yes, yeah.” Viewing the evidence in a light most favorable to the State, a reasonable finder of fact could conclude that Williams knowingly violated an existing no- contact order. Sufficient evidence supports his convictions. Exceptional Sentence Williams argues that the trial court abused its discretion by imposing a “clearly excessive” sentence. We disagree. A trial court may impose a sentence outside the standard range if it finds that there are “substantial and compelling reasons” to do so. RCW 9.94A.535. A sentence outside the standard range is subject to appeal. RCW 9.94A.585(2). But we may reverse a sentence outside the standard sentence range only if we 7 No. 79652-6-I/8 find (a) the reasons provided by the sentencing court are not supported by the record or (b) the sentence was “clearly excessive.” RCW 9.94A.585(4). A “clearly excessive” sentence is one that is exercised on untenable grounds or for untenable reasons or that is based on an action that no reasonable person would have taken. State v. Knutz, 161 Wn. App. 395, 410, 253 P.3d 437 (2011). When the trial court bases an exceptional sentence on proper reasons, a sentence is excessive “only if its length, in light of the record, . . . shocks the conscience.” Knutz, 161 Wn. App. at 410-11. We review whether an exceptional sentence is clearly excessive for an abuse of discretion. Knutz, 161 Wn. App. at 410. Here, the trial court imposed an exceptional sentence under RCW 9.94A.535(2)(c). RCW 9.94A.535(2)(c) authorizes a trial court to depart from the standard range when a defendant has “committed multiple current offenses and the defendant’s high offender score results in some of the current offenses going unpunished.” Williams does not dispute that the record supports the court’s authority to depart from the standard range. He argues that the consecutive 30 months added to his standard-range sentence is “clearly excessive” because the court found Jensen’s willing participation in the crimes was a mitigating factor. We conclude Williams’ sentence was not clearly excessive. Williams had an offender score of 19 on each of the six felony counts of domestic violence VNCO. His criminal history includes multiple domestic violence VNCO convictions. The standard-range sentence for each count of VNCO is 60 months to run concurrently.3 Had the court imposed concurrent sentences on all six 3 See RCW 9.94A.589(1)(a). 8 No. 79652-6-I/9 counts, Williams would serve a total of 60 months in prison. This is the same sentence Williams would serve if convicted of only one count of VNCO. Thus, five of the six felony charges would have gone unpunished had the court imposed a standard-range sentence. Instead, the court imposed a concurrent standard-range sentence on five of the VNCO counts and a consecutive 30- month sentence on one count for a total of 90 months. The court’s sentence was not exercised on untenable grounds or for untenable reasons. And it does not shock the conscience given the number of current felony VNCO convictions before the court and Williams’ extensive criminal history. Statutory Maximum Sentence Williams argues that the trial court abused its discretion when it imposed a term of community custody exceeding the statutory maximum sentence on all but one of the counts of felony VNCO. We agree. RCW 9.94A.701(9) prohibits imposing a term of community custody that “exceeds the statutory maximum for the crime.” See State v. Boyd, 174 Wn.2d 470, 472, 275 P.3d 321 (2012) (per curiam). Williams was convicted of class C felonies. RCW 26.50.110(5). The statutory maximum sentence for a class C felony is 60 months. RCW 9A.20.021(1)(c). The court sentenced Williams to 60 months in custody on five of the VNCO convictions as charged in counts 1, 5, 6, 7, and 8. It also imposed 12 months of community custody for each of those counts. Combined with his prison sentence, Williams’ 12-month community custody term exceeds the 60-month maximum sentence. 9 No. 79652-6-I/10 We remand to the trial court to either amend the community custody terms or resentence on the applicable counts. Statement of Additional Grounds Williams filed a statement of additional grounds for relief. We address his claims to the extent that we can discern the allegations. See RAP 10.10(c). Williams argues he received ineffective assistance of counsel. To succeed on a claim of ineffective assistance of counsel, Williams must show that his attorney’s representation fell below an objective standard of reasonableness and the deficient representation caused prejudice. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Courts apply a strong presumption that defense counsel’s trial choices fall within a wide range of reasonable professional assistance. State v. Grier, 171 Wn.2d 17, 38, 246 P.3d 1260 (2011) (citing Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). This includes decisions about which witnesses to call for trial and what evidence to present at trial. In re Pers. Restraint Petition of Davis, 152 Wn.2d 647, 742, 101 P.3d 1 (2004); In re Pers. Restraint of Lui, 188 Wn.2d 525, 552, 397 P.3d 90 (2017). Williams claims that his attorney played for the court only selective parts of the video from Trooper Axtman’s patrol car dashboard camera, portions he describes as “beneficial to the State”; did not call several witnesses for trial that Williams believes would have benefitted him; and did not adequately “question” Sergeant James Arnold. Williams fails to show that his attorney’s tactical decisions were deficient. 10 No. 79652-6-I/11 Williams also claims that he was denied his right to CrR 3.5 and 3.6 hearings and that he was precluded from pointing out that Trooper Axtman conducted the field sobriety tests outside the view of his dashboard camera.4 Williams is mistaken. The court conducted both CrR 3.5 and 3.6 hearings before trial. And Williams questioned Trooper Axtman about the failure to video record the field sobriety tests during cross-examination. We affirm Williams’ convictions but remand to either amend the community custody terms or resentence within the statutory maximum on all but one count of domestic violence felony VNCO. WE CONCUR: 4 Williams refers to this as a “Brady v. Maryland issue” but raises no claim that the State withheld exculpatory evidence. See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). 11

01-03-2023

06-08-2020

https://www.courtlistener.com/api/rest/v3/opinions/1407501/

616 P.2d 432 (1980) 94 N.M. 719 Sarah A. LUJAN, Plaintiff-Appellee, v. CIRCLE K CORPORATION, Employer and New Hampshire Insurance Company, Insurer, Defendants-Appellants. No. 4458. Court of Appeals of New Mexico. July 31, 1980. *433 Jerrald J. Roehl, Ronald W. Henkel, Jerrald J. Roehl & Associates, Albuquerque, for defendants-appellants. Charles G. Berry, Marchiondo & Berry, Albuquerque, for plaintiff appellee. OPINION SUTIN, Judge. This is a workmen's compensation case. The parties stipulated that plaintiff was totally disabled from March 31, 1977, the date of injury, to January 9, 1979, by reason of an injury that occurred within the course and scope of her employment. Judgment was entered that total disability continued to the time of trial "and shall continue for an indefinite period of time." The court ordered defendants to pay plaintiff compensation from January 9, 1979, to the time of trial and continue to make such payments until the further order of the court; "That this matter shall be brought before the Court for reconsideration of this matter not later than six months from the date hereof," November 28, 1979. Defendants appeal. We affirm on the judgment for compensation and reverse on the assessment of costs. Defendants challenged finding of fact No. 4. It reads: The plaintiff has established by expert medical testimony that as a reasonable medical probability that she suffered a psychological injury as a direct and proximate result of the robbery, abduction, assault, rape and sodomization which occurred within the course and scope of her employment on March 31, 1977. As a further direct and proximate result thereof she has been since that date and remains to the present time wholly unable to perform the usual tasks in the work she was performing at the time of her injury and it wholly unable to perform any work for which she is fitted by age, education, training, general physical and mental capacity, and previous work experience. Two issues of fact are raised: (1) whether plaintiff established as a reasonable medical probability that she suffered a psychological injury; and (2) whether as a proximate result thereof she was "wholly unable to perform any work for which ... [she] is fitted." Section 52-1-24, N.M.S.A. 1978. For the latest discussion of this issue, see Anaya v. New Mexico Steel Erectors, Inc., 94 N.M. 370, 610 P.2d 1199 (1980). This issue is called the second prong test of total disability. Medina v. Wicked Wick Candle Co., 91 N.M. 522, 577 P.2d 420 (Ct. App. 1977). A. Plaintiff established a reasonable medical probability. Dr. John R. Graham, a physician and psychiatrist, testified that his initial contact *434 with plaintiff began April 6, 1977, at the Albuquerque Center for Psychotherapy. Subsequently, she was seen on April 14, 23 and 26 when a diagnostic evaluation was completed. Dr. Graham continued to see her on a regular basis for ongoing treatment for her problems. A detailed history was obtained from Plaintiff. With respect to any work before employment with Circle K, she worked for the Albuquerque school system from September, 1975 to May, 1976 in food preparation and serving for the children at school. She left that job, and on July 4, 1976, she worked the graveyard shift for Circle K to look after her responsibilities to her children. She had no particular major medical problems, no accidents, no head injuries and no other gynocological history other than four pregnancies that resulted in four children who lived with her at home. Plaintiff worked as a clerk in the Circle K store. Dr. Graham described three different diagnosis: (1) depression with anxiety which was post-traumatic in origin; (2) personality style disorder which was post-traumatic; and (3) an adult situational reaction. On January 10, 1978, plaintiff was admitted to the Bernalillo County Medical Center for a week, suffering from some very severe problems which impaired her vision. These problems were related to the unfortunate event that occurred on March 31, 1977. Her symptoms were compatible with what is called "conversion reaction." She had double vision. She could not focus. She had very severe headaches and blurring in her eyes. From January 9, 1979, to the time of trial on August 7, 1979, Dr. Graham saw plaintiff from 13 to 16 times. The doctor and plaintiff worked toward plaintiff obtaining employment. Plaintiff made a reasonable effort in this respect, making multiple applications at a variety of places, taking examinations and other tests. She was frustrated because she was not hired and became quite desperate. Finally, through the CETA program (Comprehensive Employment Training Administration) she was able to obtain employment as a receptionist and secretary at the North City Yard of the City of Albuquerque in April, 1979. The physical problems she had led to a diagnosis of endometria cancer. Surgery took place in May and June, 1979. Plaintiff was physically unable to stay on the job. Indeed, she had psychological problems before, during and after her employment until July of 1979 when she was cleared by another doctor. She reapplied to the CETA program and hoped to hear from the City. Dr. Graham did not believe she would be hired back. Dr. Graham then detailed the psychological symptoms during her employment at the North City Yard. A recitation of them are unnecessary. They are extensive and clearly detailed. These symptoms were related to her work and interfered with her performance. After a review of 13 exhibits, including four reports by Dr. Richard T. Rada, defendants' physician and psychiatrist, Dr. Graham rendered an opinion that plaintiff was substantially impaired in an amount of 82%. This opinion was explained extensively based upon a psychiatric disorder. His guidelines were taken from Evaluation of Permanent Impairment, a 1977 publication of the American Medical Association. In his opinion, Dr. Graham stated that this impairment will persist for an indefinite period of time. It was permanent. Dr. Graham was asked whether plaintiff was able to perform any work for which she is suited by age, education, training, general physical and mental capacity, and previous work experience, the second prong test. Dr. Graham answered, "She is disabled." She would be unable to work at the present time and so long as this impairment continued. Dr. Graham's testimony unequivocally established the validity of finding No. 4, supra. Defendants respond that plaintiff could not be totally disabled from April 3 to April 30, 1979, because she earned $1.18 more per hour while employed by the City *435 than her per hour earnings while working for Circle K. While earning capacity may be evidence admissible on the question of disability, see Anaya v. New Mexico Steel Erectors, Inc., supra, the primary test of disability is capacity to perform work. Medina v. Zia Company, 88 N.M. 615, 544 P.2d 1180 (Ct.App. 1975). Dr. Graham explained plaintiff's intense suffering during her April, 1979 employment with the City. There is evidence that plaintiff was not in fact qualified for the position with the City but was placed in that position under a government training program to help the City avoid losing the government funding. During this employment, plaintiff worked only 8 days out of a possible 19. Medina v. Wicked Wick Candle Co., supra, does not support defendants. There the evidence was insufficient to sustain a finding that claimant was totally disabled as a result of an accident that occurred on April 14, 1972. She was gainfully employed as a clerk-typist, one who was a "retrainee," from February 1, 1974 to the time of trial. In the instant case, plaintiff's 8 days of work for the City in a job she was not qualified to perform does not translate total disability into partial disability. Defendants expended much time and effort in seeking to establish that plaintiff failed to support a finding of total disability by a "preponderance of the evidence." Some contradictory testimony was set forth. Reliance was had on Mascarenas v. Kennedy, 74 N.M. 665, 668, 397 P.2d 312 (1964) wherein the court said: ... The rule of liberal construction does not relieve a claimant of the burden of establishing his right to compensation by a preponderance of the evidence, nor does it permit a court to award compensation where the requisite proof is absent.... "By a preponderance of the evidence" is meant "substantial support in the evidence for the findings." "That being true," the court said, "the fact that there may have been contrary evidence which would have supported a different finding or conclusion does not permit this court, on appeal, to weigh the evidence, [citations omitted] or speculate as to what the trial court might have done." [Id. 668-669, 397 P.2d 314.] To support their position, defendants claim that Dr. Graham's testimony should be disregarded as inherently improbable. It was not, as that phrase has been defined, see State v. Boyd, 84 N.M. 290, 502 P.2d 315 (Ct.App. 1972). Plaintiff's argument is that this testimony was not worthy of belief because inherently unreliable. This argument surrounds the question of whether cancer was causally connected with the tragic event. Dr. Graham said: I cannot state with sufficient scientific base, but in my opinion, and with the information I have available to me at this time, I would have to suggest that it was related. The doctor stated his opinion was based on a "high probability," explained how he came to that opinion, see Evidence Rule 705, and testified that his opinion at trial was consistent with his deposition testimony. The fact that he testified contrarywise by deposition does not make his testimony at trial inherently unreliable. Where medical testimony in a workmen's compensation case is conflicting, the trial court's determination will be affirmed. Renfro v. San Juan Hospital, Inc., 75 N.M. 235, 403 P.2d 681 (1965). We have carefully noted the strong arguments made by defendants. A recitation of the applicable rules that reject the defendants' position would be superfluous. We note that the excluded exhibits, of which defendants complain, were cumulative of Dr. Graham's testimony that plaintiff sought work. Exclusion was not error because they were cumulative. Evidence Rule 403. B. Trial court erred in assessment of costs. Plaintiff submitted a cost bill of $1,039.08. Defendants filed written objections. After a discussion of costs by opposing lawyers, the court disallowed plaintiff *436 costs of $150.71 expended for preparation of Exhibits 1-13. An Order was entered that plaintiff be granted judgment for costs in the sum of $888.37. A hearing was held and the Order entered. Costs were assessed for: Service of Subpoenas December 1978 - $ 10.40 January 1979 Trial - 160.00 July 1979 Setting - 231.77 Witness Fees January 1979 Trial - $ 72.00 (three witnesses) July 1979 Trial - 136.00 (five witnesses) Transcript made of Stipulation Agreement - $ 10.40 Copies of Medical Records from BCMC - $ 65.00 Examination by Dr. Shirley Simms - $202.80 Section 52-1-35(B), N.M.S.A. 1978 provides in pertinent part: No costs shall be charged, taxed or collected by the clerk except fees for witnesses who testify under subpoena... In workmen's compensation cases, defendants are not liable for costs, jury fees, filing or docket fees. "If the plaintiff paid them he did so on his own volition and may not recover same from defendants." Reck v. Robert E. McKee General Contractors, 59 N.M. 492, 503, 287 P.2d 61 (1955). Neither are defendants liable for costs of fees of witnesses who did not testify under subpoena. The record does not show any hearing or trial in January or July, 1979, at which witnesses testified under subpoena and for which costs of witness fees and subpoenas could be taxed. None of the costs taxed against defendants were valid. We do not agree that defendants' appeal was frivolous or for the sole purpose of delay, and decline plaintiff's request to assess penalty under § 39-3-27, N.M.S.A. 1978. Genuine Parts Company v. Garcia, 92 N.M. 57, 582 P.2d 1270 (1978). Plaintiff filed a motion to dismiss the appeal and a brief in support thereof. The motion was denied. Plaintiff then filed a motion to submit this case on briefs filed. Plaintiff's brief in support of motion to dismiss was accepted as plaintiff's answer brief. This motion was granted. Plaintiff is awarded an attorney fee of $1,250.00 for services rendered in this appeal. We affirm the Judgment of the trial court in its award of compensation benefits and attorney fees. We reverse the Order of the court that awarded plaintiff costs. The court shall withdraw its Order and enter an Order that the plaintiff's cost bill is denied. Defendants shall pay the costs of this appeal. IT IS SO ORDERED. WOOD, C.J., and ANDREWS, J., concur.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/8540617/

SENTENCIA En esta ocasión, tenemos ante nuestra consideración un asunto que no presenta una controversia viva y latente que requiera nuestra atención. E.L.A. v. Aguayo, 80 D.P.R. 552 (1958). Los hechos y el derecho cambiaron durante el trá-mite apelativo. Por los fundamentos que expresamos a con-tinuación, desestimamos el pleito por académico. *998I El 5 de marzo de 2009 el Sr. Pablo Crespo Claudio, director ejecutivo de la entonces Asociación de Empleados del Estado Libre Asociado (AEELA), remitió una carta a la Junta de Directores de esa entidad. El señor Crespo Claudio comunicó en esa carta su decisión de acogerse al retiro a finales de junio de 2009. A esos efectos, la carta esboza lo siguiente: En agosto de 1997, fui honrado con el nombramiento de Director Ejecutivo. He tratado de ofrecer lo mejor de mi ser en todas las posi-ciones que he ocupado. Después del tiempo transcurrido ha-ciendo lo que entiendo ha sido lo más correcto, me acogeré a los beneficios de jubilación; efectivo el 30 de junio. Confío en haber prestado mis servicios con la mayor diligen-cia y en defensa de los intereses colectivos de los empleados y ex-empleados públicos. Apéndice, pág. 243. Con posterioridad a esa carta, el señor Crespo Claudio envió otra comunicación escrita a la Junta de Directores en que indicó que deseaba continuar en el puesto de Director Ejecutivo, pero bajo un contrato de servicios profesionales. Por eso, unió a su carta una propuesta en que detalló todo lo relacionado al término, la compensación y la termina-ción de la relación contractual. Apéndice, págs. 244-250. El 29 de abril de 2009, la Junta de Directores se reunió y evaluó ambas comunicaciones. Decidió aceptar la renun-cia del señor Crespo Claudio a la posición de Director Eje-cutivo y denegar su oferta para continuar en el cargo por contrato de servicios. Sin embargo, en reconocimiento a su experiencia, determinó ofrecerle un contrato de consultoría. Cónsono con lo anterior, la Junta de Directores envió al señor Crespo Claudio una propuesta de contrato junto con un memorando en que aceptaba su renuncia. La Junta, a su vez, emitió el Acta Núm. 2241, 6-15, en que informó a todos los delegados la renuncia del señor Crespo Claudio por motivo de su jubilación, efectiva el 30 *999de junio de 2009. Apéndice, pág. 262. Asimismo, para infor-mar lo acontecido circuló un memorando a la Asamblea en que informó lo mismo. Debido a lo anterior, el Presidente de la Asamblea, el Sr. Nery Cruz Reyes, le solicitó una reunión al Comité Ejecutivo de la Junta de Directores para discutir la dimisión del Director Ejecutivo. Apéndice, págs. 279-280. Así las cosas, el 13 de mayo de 2009 el señor Crespo Claudio sometió una segunda propuesta de contrato de ser-vicios con la intención de modificar su primera oferta. Mientras tanto, ese mismo día la Comisión para Asuntos de la Junta y la Asamblea, adscrita a la Asamblea de De-legados, cursó una comunicación a la Junta de Directores para informarle los acuerdos alcanzados por la Comisión en relación con la renuncia del Director Ejecutivo. En sín-tesis, acordaron solicitarle al señor Crespo Claudio que “retir[ara] la renuncia”, a cambio de mantenerse en el cargo de Director Ejecutivo por un periodo de dos años o hasta que culminara el término de la Junta de Directores en funciones. Apéndice, pág. 297. Al día siguiente, el señor Crespo Claudio le notificó por escrito a la Comisión su determinación de “posponer mis planes de jubilación y, por lo tanto, retirar mi renuncia”. Apéndice, pág. 298. Esa decisión se anunció a la Junta de Directores de forma simultánea. La Junta de Directores respondió que, como ya había aceptado la renuncia y el puesto en controversia se declaró vacante mediante las Ac-tas 6-15 y 8-15 de 29 de abril de 2009, atendería la solici-tud en su próxima reunión. El 1 de junio de 2009 se celebró la reunión. La Junta de Directores determinó ordenar al señor Crespo Claudio que “com [enzara] el período de vaca-ciones regulares al recibo de este Acuerdo, hasta la fecha de efectividad de [la] renuncia”. Apéndice, pág. 301. Inconformes con el acuerdo de la Junta de Directores, la Asamblea de Delegados convocó una reunión extraordina-ria para discutir el asunto. Posteriormente, la Asamblea de *1000Delegados ordenó a la Junta de Directores que, de forma inmediata, ... [a]cept[ara] el retiro de la renuncia del Director Ejecutivo y mantenga al Sr. Pablo Crespo Claudio como Director Ejecu-tivo, bajo las mismas condiciones de trabajo existentes previo a su renuncia por un término de dos años o hasta que culmine el término de la presente Junta de Directores. Apéndice, pág. 302. Sin embargo, la Junta de Directores mantuvo su pos-tura de no aceptar el retiro de la renuncia del señor Crespo Claudio y nombró a un Director Ejecutivo Interino. A raíz de ello, la Asamblea de Delegados le notificó a la Junta de Directores el inicio de una acción disciplinaria en res-puesta al desacuerdo. La Junta de Directores, en atención a lo anterior, pre-sentó una demanda de interdicto preliminar, permanente y sentencia declaratoria contra la Asamblea de Delegados, su Presidente, el señor Cruz Reyes y el señor Crespo Claudio. En ella, solicitó que se ordenara al señor Crespo Claudio cumplir con la determinación de la Junta de Direc-tores para que se acogiera a una licencia de vacaciones hasta el 30 de junio de 2009 y que se abstuviera de destruir o remover de las instalaciones de la AEELA cualquier do-cumento o propiedad de la Asociación. Además, pidió que se determinara que el poder de nominar al Director Ejecu-tivo residía en la Junta de Directores, por lo que la Asam-blea de Delegados no podía intervenir en ese proceso. De igual forma, solicitó que se ordenara a la Asamblea de De-legados, su Directiva y componentes a que se abstuvieran de intervenir con los poderes y las prerrogativas de la Junta de Directores. Por último, pidió la paralización de todo procedimiento disciplinario iniciado por la Asamblea de Delegados en contra de los miembros de la Junta de Directores por hechos relacionados a este caso. Luego de varios trámites procesales, el Tribunal de Pri-mera Instancia celebró la vista de interdicto permanente. *1001En ese momento, la controversia se limitó a establecer si hubo una renuncia válida por parte del señor Crespo Claudio. Luego de sopesar la prueba documental y testifical, el Tribunal de Primera Instancia emitió una sentencia en la que declaró “con lugar” el interdicto permanente que se solicitó. Cimentó su decisión en que el poder de nominar al Director Ejecutivo se delegó mediante legislación a la Junta de Directores. Por consiguiente, la Asamblea de De-legados no podía intervenir con cualquier determinación sobre ese asunto ni podía disciplinar a los miembros de la Junta de Directores por ello. De igual forma, el foro primario resolvió que la carta suscrita por el señor Crespo Claudio, en la que recoge su decisión de acogerse a la jubilación, constituyó una notifi-cación de renuncia. El Tribunal de Primera Instancia pun-tualizó que concluir que la misiva en cuestión era un simple aviso de su intención de jubilarse carecía de mérito porque el lenguaje utilizado era determinante e inequívoco al indicar que “me acogeré a los beneficios de la jubilación efectivo el 30 de junio”. En desacuerdo con el dictamen del foro primario, el se-ñor Crespo Claudio apeló ante el Tribunal de Apelaciones. En su escrito, indicó que el foro primario erró al declarar “con lugar” el injunction permanente. También, señaló que el foro primario erró al no reconocer que la Asamblea de Delegados tenía la facultad de gobernar y supervisar las actuaciones de la Junta de Directores. Luego de evaluar los argumentos de las partes, el foro apelativo intermedio dictó una sentencia que modificó y confirmó el dictamen del foro primario. En esencia, el Tribunal de Apelaciones determinó que el señor Crespo Claudio renunció a su puesto como Director Ejecutivo, por lo que no procedía hablar de una violación al debido proceso de ley. Además, ese tribunal confirmó la emisión del inter-dicto permanente contra la Asamblea de Delegados. Sin embargo, sostuvo que la Asamblea de Delegados ostentaba *1002el poder de disciplinar y destituir a los miembros de la Junta de Directores, conforme a la norma establecida en Domenech, Tesorero v. Corte, 48 D.P.R. 542, 547 (1935), según la cual, quien está facultado para nombrar, también lo está para destituir. Ahora bien, el foro apelativo interme-dio indicó que el motivo de disciplinar a la Junta de Direc-tores no podía estar relacionado con el ejercicio de las pre-rrogativas que fueron delegadas exclusivamente por ley a ese cuerpo directivo. Inconforme con ese dictamen, la Junta de Directores re-currió ante este Foro mediante una petición de certiorari. La Asamblea de Delegados no recurrió de la sentencia del Tribunal de Apelaciones. En su escrito, la Junta de Direc-tores aduce que el Tribunal de Apelaciones erró al concluir que la Asamblea de Delegados podía disciplinarla conforme lo resuelto en Domenech, Tesorero v. Corte, id. En oposición, la Asamblea de Delegados presentó su alegato y sostuvo que la determinación del Tribunal de Apelaciones era correcta en todos sus aspectos. El 13 de mayo de 2010 expedimos el auto de certiorari. El 22 de julio de 2011 la Asamblea Legislativa aprobó la Ley Núm. 144-2011. Esa ley enmendó significativamente la Ley Núm. 133 de 28 de junio de 1966, conocida como Ley de la Asociación de Empleados del Estado Libre Asociado de Puerto Rico, 3 L.P.R.A. see. 862 et seq. Con posterioridad a esos sucesos, el 12 de agosto de 2011 la Junta de Directores presentó ante este Tribunal una “Moción sobre academicidad por enmiendas a la ley orgánica de la Asociación de Empleados y otros extremos”. En esa moción, a la cual no se opuso la parte recurrida, la parte peticionaria afirmó que el caso se convirtió en acadé-mico por dos fundamentos. En primer lugar, la parte peticionaria señala que la con-figuración de la Junta de Directores y de la Asamblea de Delegados que existía cuando el Tribunal de Primera Ins-tancia emitió el injunction permanente, la sentencia del *1003Tribunal de Apelaciones y la solicitud de certiorari ante este Foro no es igual. Es decir, indica que la situación tác-tica no es la misma que existía cuando expedimos el auto de certiorari el 13 de mayo de 2010. Así pues, concluye que no existe adversidad real entre las partes que requiera nuestra atención. En segundo lugar, la parte peticionaria aduce que me-diante la Ley Núm. 144-2011 se enmendó extensamente la Ley Núm. 133, supra. En particular, el Art. 3 de la Ley Núm. 144, supra, establece en lo que nos concierne: Los directores servirán hasta la expiración de sus respecti-vos términos y hasta que se elijan sus sustitutos. Sin embargo, los directores quedarán automáticamente separados del cargo que ocupan por alguna de las siguientes razones: (1) Cesar por cualquier razón como empleado en la agencia gubernamental cuyos empleados representa ante la Asamblea de Delegados. (2) Renuncia. (3) Haber sido declarado culpable por un tribunal compe-tente de cualquier delito grave. (4) Haber sido declarado incapacitado para regir sus bienes o persona. Los directores podrán ser separados de los puestos a los que fueron electos en la Junta de Directores solo por justa causa, entendiendo que será justa causa una o más de las siguientes causales: (1) Utilizar las facultades propias del cargo de Director en beneficio propio o de algún familiar dentro del tercer grado de consanguinidad o segundo de afinidad. (2) Defraudar o ayudar a defraudar a la Asociación. (3) Revelar información confidencial sobre los negocios o asuntos internos de la Asociación para favorecer a otras per-sonas naturales o jurídicas. No constituirá justa causa para la separación de los cargos las meras discrepancias entre los cuerpos directivos en cuanto al ejercicio de las facultades, prerrogativas y responsabilida-des que le han sido conferidos por [esta Ley] a sus miembros. La Asamblea de Delegados no podrá intervenir, revocar ni in-terferir de forma alguna con las acciones que en ejercicio de las facultades y poderes lleve a cabo la Junta de Directores. La Asamblea de Delegados, ni la Junta de Directores tendrán per-sonalidad ni capacidad jurídica separada a la de la Asociación. Tanto los miembros de la Asamblea de Delegados, *1004así como los de la Junta de Directores no podrán iniciar accio-nes derivativas contra la Asociación ni un cuerpo rector contra otro a menos que sean indebidamente privados de ejercer sus facultades, derechos u obligaciones. El miembro a ser destituido deberá garantizársele un de-bido proceso de Ley por sus pares que lo eligieron. Estos serán los que en primera instancia determinen sobre cualquier que-rella de destitución de su cargo como miembros de la Junta de Directores. Una decisión sobre destitución deberá ser presen-tada ante la Asamblea de Delegados convocada en asamblea extraordinaria la cual tendrá que ser aprobada por dos terce-ras partes de los miembros delegados en Asamblea Extraordinaria. Este miembro delegado quedará fuera de la Asamblea de Delegados una vez sea aprobada su destitución de la Junta de Directores y continuará el suplente. La Junta de Directores establecerá un procedimiento mediante Regla-mento para atender dicha destitución. (Enfasis nuestro). 3 L.P.R.A. sec. 862d. II A. Mencionamos recientemente en Asoc. Fotoperiodistas v. Rivera Schatz, 180 D.P.R. 920, 933 (2011), que “un caso se convierte en académico cuando con el paso del tiempo su condición de controversia viva y presente se ha perdido”. Como es conocido, un pleito resulta académico si “se trata de obtener un fallo sobre una controversia disfra-zada, que en realidad no existe ...”. San Gerónimo Caribe Project v. A.R.Pe., 174 D.P.R. 640, 652 (2008). Véanse, además, Moreno v. Pres. U.PR. II, 178 D.P.R. 969, 973 (2010); hozada Tirado et al. v. Testigos Jehová, 177 D.P.R. 893, 908 (2010). Asimismo, puntualizamos en Moreno v. Pres. U.P.R. II, supra, pág. 973, que una “controversia abstracta, ausente un perjuicio o amenaza real y vigente a los derechos de la parte que los reclama, no presenta el caso y controversia que la Constitución exige para que los tribunales puedan intervenir”. Ahora bien, existen varias excepciones a la doctrina de *1005academicidad. Estas operan cuando se plantea ante el tribunal (1) una cuestión recurrente o susceptible de volver a ocurrir; (2) cuando el demandado ha cambiado la situación de hechos, pero no tiene visos de permanencia o (3) cuando subsisten consecuencias colaterales que tienen vigencia y actualidad. Torres Santiago v. Depto. Justicia, 181 D.P.R. 969, 983 (2011). De esa forma, cuando “se determina que un pleito es académico y que no está presente ninguna de las excepciones que evadirían su academicidad, es deber de los tribunales desestimarlo”. Asoc. Fotoperiodistas v. Rivera Schatz, supra, pág. 936. El poder judicial no tiene discreción para hacer lo contrario. Moreno v. Pres. U.P.R. II, supra, pág. 975. Véase, además, Alvarez v. Smith, 558 U.S. 87 (2009). B. En este caso, es correcta la postura de la peticiona-ria Junta de Directores. El recurso se tornó académico. Ad-viértase que la composición de la Junta de Directores y de la Asamblea de Delegados de la Asociación ya no es la misma. Ese cambio en los hechos del caso ha desembocado en que no exista posibilidad de una acción disciplinaria por parte de la Asamblea de Delegados hacia la Junta de Directores, al punto que tenemos ante nos una moción por academicidad de la propia Junta de Directores, a la cual se allanó la Asamblea. Cualquier expresión nuestra acerca de esa controversia —que ya no está viva— sería emitir una opinión consultiva. E.L.A. v. Aguayo, supra. Dicho de otro modo, ya no se encuentran presentes ni la asamblea que quería destituir ni la junta que no quiso aceptar la renun-cia del Sr. Pablo Crespo Claudio. Además, la Asamblea Le-gislativa clarificó palmariamente la resolución de futuras controversias similares. Con ello, se disipa la posibilidad de que este caso sea susceptible de repetirse. Torres Santiago v. Depto. Justicia, supra, pág. 983. En específico, con la aprobación de la Ley Núm. 144, supra, es claro que los miembros de la Junta de Directores servirán hasta la expiración de su término y hasta que se *1006elijan sus sustitutos. Incluso, se indica que las meras dis-crepancias entre la Asamblea de Delegados y la Junta de Directores en cuanto al ejercicio de sus facultades, prerro-gativas y responsabilidades no constituirán justa causa para que la Asamblea de Delegados discipline a la Junta de Directores. Art. 3 de la Ley Núm. 144, id. Asimismo, el extenso Art. 3, id., indica que la Asamblea de Delegados no podrá intervenir con las acciones que la Junta de Directores lleve a cabo en el ejercicio de sus fa-cultades y deberes. De igual forma, el artículo en cuestión esboza que la Asamblea de Delegados y la Junta de Direc-tores no tendrán personalidad ni capacidad jurídica sepa-rada a la de la Asociación de Empleados. Id. Además, la Ley Núm. 144, id., prohíbe la presentación de acciones de-rivativas de la Asamblea de Delegados contra la Junta de Directores, a menos que se les prive indebidamente de ejer-cer sus facultades, derechos u obligaciones. Recordemos que en los foros inferiores la controversia se limitó a determinar si procedía una acción disciplinaria en contra de la Junta de Directores por no acatar el criterio de la Asamblea de Delegados. Así las cosas, el alcance de nuestro pronunciamiento sobre academicidad se limita a eso. No tenemos que resolver si proceden otras acciones legales en contra de la Junta de Directores. Entrar en esa discusión constituiría obiter dictum. Valga recalcar que la parte recurrida no se opuso a la moción de academicidad que presentó la parte peticionaria. Así pues, resulta forzoso concluir que el cam-bio en la composición de los cuerpos rectores de la AEELA y la nueva legislación transforman este caso en académico. “La Constitución no nos faculta para embarcarnos ahora en un análisis abstracto de estos asuntos”. Moreno v. Pres. U.P.R. II, supra, pág. 977. *1007III Por los fundamentos que preceden, se deja sin efecto el “injunction”permanente que emitió el Tribunal de Primera Instancia y que confirmó el Tribunal de Apelaciones. Ade-más, se desestima la demanda por haberse tornado acadé-mica la controversia. Lo acordó el Tribunal y lo certifica la Secretaria del Tribunal Supremo. La Jueza Asociada Señora Fiol Matta y la Juez Asociada Señora Rodríguez Rodríguez disintieron sin opinión escrita. El Juez Asociado Señor Rivera García emi-tió un voto de inhibición. (Fdo.) Aida Ileana Oquendo Graulau Secretaria del Tribunal Supremo — O — Voto de inhibición emitido por el Juez Asociado Señor Rivera García. El Juez suscribiente fungió como Juez del Tribunal de Apelaciones durante el periodo de abril de 2009 a septiem-bre de 2010. Allí participamos directamente en el recurso de referencia, emitiendo la sentencia que hoy se revisa. La controversia giraba en torno a las facultades de la Asam-blea de Delegados de la Asociación de Empleados del Es-tado Libre Asociado de Puerto Rico(1) (la Asamblea) y la Junta de Directores de dicha entidad. Resolvimos en aquel entonces que el foro de instancia no erró al declarar “ha lugar” una solicitud de interdicto permanente que se pre-sentó en contra de la Asamblea. Por otra parte, modifica-mos el dictamen apelado a los fines de establecer que, en virtud de su facultad de nombramiento, esa parte tenía la *1008autoridad de disciplinar y destituir a los miembros de la Junta de Directores. Lo anterior siempre y cuando el ejer-cicio de dicha facultad no interfiera con las prerrogativas que se le hubiesen delegado mediante ley a esta última. Es por todos conocido que tanto la Regla 63 de Procedi-miento Civil, 32 L.P.R.A. Ap. V, así como los Cánones de Ética Judicial, exigen que el juez no incurra en conductas que denoten o arrojen dudas en cuanto su parcialidad para adjudicar o que tiendan a minar la confianza pública en el sistema de justicia. Este criterio de imparcialidad es de gran transcendencia en nuestro ordenamiento jurídico, toda vez que reafirma la confianza de los ciudadanos en nuestro sistema adjudicativo y, además, ayuda a mantener bases democráticas sólidas. En vista de lo antes señalado, y atendiendo a los man-damientos éticos que rigen nuestro quehacer jurídico, nos inhibimos de pasar juicio sobre los méritos del presente caso. (1) Hoy Asociación de Empleados de Gobierno de Puerto Rico.

01-03-2023

11-23-2022

https://www.courtlistener.com/api/rest/v3/opinions/126166/

537 U.S. 1109 PICKELMAN ET AL.v.MICHIGAN STATE POLICE ET AL. No. 02-691. Supreme Court of United States. January 13, 2003. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT. 2 C. A. 6th Cir. Certiorari denied. Reported below: 31 Fed. Appx. 298.

01-03-2023

04-28-2010

https://www.courtlistener.com/api/rest/v3/opinions/2892507/

NO. 07-04-0574-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL E APRIL 11, 2005 ______________________________ DANIEL LEWIS LEAL, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 242ND DISTRICT COURT OF HALE COUNTY; NO. A15660-0408; HONORABLE ED SELF, JUDGE _______________________________ Before REAVIS and CAMPBELL, JJ. and BOYD, S.J. (1) MEMORANDUM OPINION Pursuant to a plea of guilty, appellant Daniel Lewis Leal was convicted of driving while intoxicated and punishment was assessed at seven years confinement, suspended for seven years. The clerk's record contains a certification of defendant's right of appeal by which the trial court certified the underlying case was a plea-bargain case with no right of appeal. By letter dated March 7, 2005, this Court notified appellant that the certification indicated no right of appeal and requested a response by March 28, 2005, noting that failure to file an amended certification would result in dismissal. See Tex. R. App. P. 25.2(a)(2) & (d); Stowe v. State, 124 S.W.3d 228, 232 (Tex.App.-El Paso 2003, no pet.). Appellant did not respond and no amended certification reflecting a right to appeal has been filed in a supplemental record. Thus, we dismiss the appeal. Accordingly, the appeal is dismissed. Don H. Reavis Justice Do not publish. 1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. 25, 2003. The pre-sentence investigation report recited that appellant and the victim worked together at a hospital. Other coworkers stated appellant was "attracted and infatuated with the victim" and she was moving back to Canada in part to avoid appellant. The report reflected that appellant admitted being "very attached" to the victim and going to see her on the evening of April 23, 2002. He was irritated when the victim told him to leave because someone was coming over. The next thing he remembered was being in his truck with blood all over him. He did not remember murdering the victim but admitted he must have done so. The report stated appellant had no previous criminal history, had served four years in the Air Force and was working toward a college degree. It also contained appellant's statements that while in the Air Force he twice had been treated for "severe depression / organic brain syndrome," ultimately leading to his discharge from the military, that he had seen a psychiatrist twice in 1997 and that he took Paxil. At the August 25, 2003 sentencing hearing both parties presented argument, and appellant made a statement and had a discussion with the judge concerning an appropriate punishment. At the conclusion of the hearing the court adjudicated appellant guilty of murder and sentenced him to life imprisonment. Appellant timely filed a pro se notice of appeal and appellate counsel was appointed. Appellant's counsel has filed a brief stating she has diligently reviewed the record and concluded it presents no reversible error and the appeal is frivolous. See Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct.1396, 18 L. Ed. 2d 493 (1967). The brief discusses the procedural history of the case and applicable law. The brief does not discuss any potential complaints. See Johnson v. State, 885 S.W.2d 641, 645 (Tex.App.-Waco 1994, pet. ref'd). Counsel also has filed a motion to withdraw and by letter informed appellant of his right to review the trial record and to file a pro se brief. Appellant has filed a pro se brief in which he raises three points assigning error to the judgment of the trial court. The State has filed a brief which merely agrees with the conclusion of defense counsel that the record shows no reversible error. In conformity with the standards set out by the United States Supreme Court, we will not rule on the motion to withdraw until we have independently examined the record. Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.-San Antonio 1997, no pet.). If, after reviewing the briefs submitted by appellant and his counsel, this court determines the appeal has merit, we will remand it to the trial court for appointment of new counsel. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). The three issues presented in appellant's pro se brief are (1) that the State failed to meet its burden of proof that he was competent to stand trial, (2) his trial counsel was ineffective in failing to obtain medical records concerning appellant's history of mental problems, and (3) the trial court failed to warn him of the possible consequences of his plea. Appellant's argument in support of his first point alleges he had previously been declared incompetent and the pre-sentence investigation states he suffered from a "long history of depression, organic brain syndrome, and mood disorder/obsessive behaviors." Nothing in this record indicates appellant had previously been declared incompetent and our review is limited to the record before us. Luckette v. State, 906 S.W.2d 663, 668 (Tex.App.-Amarillo 1995, pet. ref'd). Compare Hull v. Freeman, 932 F.2d 159, 168 (3d. Cir., 1991) (trial counsel asserted defendant was competent after two doctors declared the defendant incompetent). Without such evidence the State is entitled to rely on the presumption appellant was competent to stand trial. See Tex. Code Crim. Proc. Ann. art. 46.02 § 1A(b) (Vernon 1979) (repealed effective January 1, 2004). Further, appellant provides no argument or authority that depression or the other conditions he mentions prevented him from consulting with his counsel or having a rational and factual understanding of the proceedings. See Tex. Code. Crim. Proc. Ann. art. 46.02 §1A(a) (Vernon 1979) (repealed effective January 1, 2004). Not disclosed in appellant's brief is the fact, shown in the appellate record, that on his trial counsel's motion, the trial court authorized the hiring of a psychiatric expert. The only result of appellant's examination by that expert reflected in the record is the statement by his counsel at the August 25, 2003 hearing that it failed to "find anything that would help us understand what happened on that day." Moreover, appellant stipulated in writing that he was mentally competent and his counsel certified that he appeared to be competent to stand trial. Appellant's first point fails to raise a meritorious issue. Appellant's second point asserts his counsel was ineffective for failing to obtain medical records from the Air Force showing his mental problems. The standards by which the effectiveness of counsel is reviewed are set out in the seminal case of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Court of Criminal Appeals in Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986). In order to show trial counsel was ineffective, a claimant must establish two elements: (1) that his counsel's performance was deficient, and (2) the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687. The first component is met by showing that trial counsel made errors so significant that he was not functioning as the counsel guaranteed by the Sixth Amendment to the United States Constitution. Id. The second component necessitates a showing that counsel's errors were so serious that they deprived the defendant of a fair trial, i.e., a trial whose result is reliable. Id. A claimant must show that, but for counsel's errors, there is a reasonable probability that the result of the trial would have been different. Id. at 694. A reasonable probability is one sufficient to undermine confidence in the outcome. Id. Appellant does not assert that any records from his service in the Air Force would be relevant to his present competency to stand trial or provide information relevant to punishment which was not revealed in the pre-sentence investigation report. The argument offers nothing to suggest counsel's performance was deficient or there was any prejudice to the defense. Under appellant's second point he also argues his trial counsel misrepresented the terms of the plea bargain. In support he points to a cover page on the pre-sentence investigation report. That document actually indicates there was no agreement on punishment. It is a summary of a separate document reflecting that the State was withholding a punishment recommendation until completion of the pre-sentence investigation, and the defense was recommending the minimum sentence. Appellant's second point is without merit. In his third point, appellant argues the trial court failed to warn him of the possible consequences of his plea. This assertion is contrary to the record. Article 26.13(a) of the Code of Criminal Procedure defines the admonitions required before accepting a plea of guilty. Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon Supp. 2004). The written plea admonishments, signed by appellant, and the oral admonishments at the hearing on his plea addressed each of those matters. Appellant does not state any additional admonishment that he believes is required. This point fails to present a meritorious issue on appeal. We have also made an independent examination of the record to determine whether there are any arguable grounds which might support the appeal. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We agree it presents no meritorious grounds for review. We grant counsel's motion to withdraw and affirm the judgment of the trial court. James T. Campbell Justice Do not publish.

01-03-2023

09-07-2015

https://www.courtlistener.com/api/rest/v3/opinions/2959255/

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN JUDGMENT RENDERED MAY 1, 2015 NO. 03-14-00746-CV C. W., Appellant v. Texas Department of Family and Protective Services, Appellee APPEAL FROM 53RD DISTRICT COURT OF TRAVIS COUNTY BEFORE CHIEF JUSTICE ROSE, JUSTICES GOODWIN AND FIELD AFFIRMED -- OPINION BY CHIEF JUSTICE ROSE This is an appeal from the judgment signed by the trial court on November 7, 2014. Having reviewed the record and the parties’ arguments, the Court holds that there was no reversible error in the trial court’s judgment. Therefore, the Court affirms the trial court’s judgment. Because appellant is indigent and unable to pay costs, no adjudication of costs is made.

01-03-2023

09-17-2015

https://www.courtlistener.com/api/rest/v3/opinions/3062380/

IN THE COURT OF APPEALS OF IOWA No. 15-0176 Filed October 14, 2015 IN THE INTEREST OF W.N., Minor Child, T.N., Mother, Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Lucas County, Martha Mertz, Judge. A mother appeals the district court’s order dismissing her petition to terminate the father’s parental rights. AFFIRMED. Jenna K. Lain of The Law Office of Jenna K. Lain, P.L.L.C., Corydon, for appellant. Bryan J. Tingle, Des Moines, for appellee. Dawn M. Bowman, attorney and guardian ad litem for minor child. Considered by Doyle, P.J., and Mullins and Bower, JJ. 2 MULLINS, Judge. A mother appeals the district court’s order dismissing her petition to terminate the father’s parental rights under Iowa Code section 600A.8(3) (2013). She claims she proved the statutory grounds for abandonment by clear and convincing evidence and the district court erred in considering the father’s subjective intent. She further asserts that termination of the father’s parental rights was in the child’s best interests. We affirm. I. Background Facts and Proceedings The parties have one child together, W.N., born in May 2013. Although paternity of the child had not been established at the time of the termination hearing in December 2014, the parties agreed that Ray is the biological father of W.N. Ray is the father of one other child from a prior marriage, C.S., with whom he has visitation every other weekend and additional parenting time during the summer. Ray and the mother, Tamara, briefly dated and lived together, ending their relationship shortly after finding out Tamara was pregnant with W.N. Ray did not maintain contact with Tamara while she was pregnant and was not present for W.N.’s birth. Ray first met W.N. when he was three days old. Since birth, W.N. has been in his mother’s sole physical care. Shortly after W.N.’s birth in May 2013, the State filed a child-in-need-of- assistance petition unrelated to this action.1 During the CINA case from May until 1 At W.N.’s birth, his umbilical cord blood tested positive for cocaine. Following the positive cord blood test, Tamara completed drug screenings, which came back negative. After a contested adjudicatory hearing on July 29, 2013, the juvenile court dismissed the 3 August 2013, Ray had regular visits with W.N. in a supervised setting approximately once a week for twenty minutes. Ray did not have visits with W.N. in September or October 2013, and it is unclear whether he saw W.N. during November or December 2013, but he did not have any scheduled visits with him in those two months. Ray admitted he resisted many of Tamara’s visitation proposals, but denied he intended to abandon W.N. Throughout this time, Tamara actively fostered relationships between W.N. and Ray’s family, including his mother and father who were both divorced and remarried, and Ray’s other son, C.S. Ray last saw W.N. in July 2014 when Tamara took W.N. to see Ray and his family during a camping trip. On September 12, 2014, Ray filed an action to establish paternity of W.N. On September 19, 2014, Tamara responded with a petition to terminate Ray’s parental rights with respect to W.N., only sixteen months after W.N.’s birth. She alleged Ray abandoned W.N. within the meaning of Iowa Code section 600A.8(3)(b). On October 2, 2014, the parties participated in a mediation regarding temporary matters in Ray’s paternity action that resulted in a mediation agreement. The mediation agreement required both Tamara and Ray to complete a drug test and Ray to complete a substance abuse evaluation, following which Ray would have weekly, thirty-minute visits with W.N. supervised by Tamara’s fiancé and a Parents as Teachers professional on alternating weeks. Ray completed the requirements within a week but failed to provide proof CINA case on August 30, 2013. 4 of completion and did not exercise visits with W.N. between the time of the mediation in October and the hearing in December 2014. The district court combined the termination-of-parental-rights hearing and hearing on temporary matters, which were held on December 9 and 10, 2014. At the hearing, the guardian ad litem (GAL) recommended that Ray’s parental rights as to W.N. be terminated. She testified that she had significant concerns regarding his ability to parent W.N. because of his marijuana usage. She also noted Ray’s lack of follow-through with the mediation agreement, his failure to participate in visits with W.N. in the weeks leading up to the trial, and his lack of financial support for W.N. Tamara testified that she did not prevent Ray from having visits with W.N. but instead required that his visits be supervised and that Ray be sober during the visits. Her concern arose because Ray regularly used marijuana to self- medicate for lingering physical pain and mental issues, including suicidal thoughts and ideations, he suffered as a result of a motor vehicle accident in which he was seriously injured in 2011. Ray admitted he smoked marijuana the morning of the termination hearing. Both parties testified to the amount of financial support Ray had provided for W.N. From May until October 2013, Ray voluntarily provided $100 a week to Tamara for W.N.’s support. From October until December 2013, the support decreased until Ray made his final support payment on December 2, 2013. His total voluntary payments to Tamara for W.N.’s support totaled $1850. Ray 5 admitted he did not contribute to W.N.’s support during 2014, though he continued to pay child support for his other child, C.S.2 On January 15, 2015, the district court entered a ruling dismissing Tamara’s petition and entered a temporary order in the paternity case allowing visitation and ordering child support. In its order, the district court concluded that Ray did not abandon W.N. within the meaning of section 600A.8. It found that Ray did not intend to abandon W.N., rather he intended to avoid Tamara’s control, and both parties contributed to Ray’s lack of contact with W.N. following the dismissal of the CINA case. The court further found that termination of Ray’s parental rights was not in W.N.’s best interests. It recognized “Ray’s ability to provide support, his parenting abilities, and the potential detriment to W.N.[, namely the termination of the relationship between W.N. and his extended paternal family,] in terminating Ray’s parental rights.” This appeal followed. II. Standard of Review We review private termination proceedings de novo.3 In re G.A., 826 N.W.2d 125, 127 (Iowa Ct. App. 2012). We give weight to the district court’s factual findings, especially those concerning witness credibility, but are not bound by them. Iowa R. App P. 6.904(3)(g). 2 As the district court noted, there has never been a court order requiring Ray to contribute to W.N.’s support as there has been for C.S. 3 The father failed to file a brief. “On the failure of the appellee to file a brief, the appellant is not entitled to a reversal as a matter of right, but the court may, within its discretion, handle the matter in a manner most consonant with justice and its own convenience.” Bowen v. Kaplan, 237 N.W.2d 799, 801 (Iowa 1976) (internal quotation marks omitted). Ray’s failure to file a brief does not alter our duty to conduct a de novo review. 6 III. Analysis On appeal, the mother argues that a parent’s “intention to abandon” is no longer a statutory element of Iowa Code chapter 600A and the district court erred in considering the father’s subjective intent in its statutory analysis. Section 600A.2(19) defines “[t]o abandon a minor child” as when “a parent . . . rejects the duties imposed by the parent-child relationship . . . which may be evinced by the person, while being able to do so, making no provision or making only a marginal effort to provide for the support of the child or to communicate with the child.” Iowa Code § 600A.2(19) (2013). Thus, the parental mental state now is based on the parent’s conduct in rejecting parental duties rather than the intent to abandon. See id. Still, chapter 600A does not prohibit a district court from ever considering a parent’s subjective intent in making a determination of whether the parent has abandoned his or her child, but instead prohibits a district court from basing its decision solely on the parent’s subjective intent without considering that parent’s acts in regards to the parent-child relationship. See id.; see also id. § 600A.8(3)(c). To terminate parental rights for abandonment under section 600A.8(3)(b), the petitioning party must show the child is at least six months old at the time of the termination hearing and the parent for whom termination is sought has failed to maintain “substantial and continuous or repeated contact with the child” by contributing to the child’s financial support in “a reasonable amount, according to the parent’s means.” Iowa Code § 600A.8(3)(b). The petitioning parent must also show the other parent has failed to (1) “visit[] the child at least monthly when 7 physically and financially able to do so and when not prevented from doing so by the person having lawful custody of the child”; (2) have “regular communication with the child or with the person having the care or custody of the child,” when unable to visit the child; or (3) live openly with the child for six months within the last year. Id. A parent’s subjective intent, unsupported by these acts, does not preclude a determination the parent has abandoned the child. Id. § 600A.8(3)(c). Ray voluntarily provided financial support for W.N. for the first several months of his life totaling $1850. Although Ray continued to contribute $100 per month to the support of his older son, and thus likely could have continued to contribute to W.N.’s support, he was not required to do so by court order. Ray also visited W.N. regularly for the first few months of his life. And although he only saw him a handful of times following the dismissal of the CINA case, he visited with him in July 2014—only two months before Tamara filed her petition. Eventually, Ray believed it best to pursue court action to obtain a set visitation schedule and filed a paternity action. Tamara responded with a petition to terminate his parental rights. Although Tamara believed she was acting in her child’s best interests by restricting visits between Ray and W.N. to occur only when Ray was supervised, we agree with the district court that her actions discouraged contact between Ray and W.N. and she contributed to the lack of contact between Ray and W.N. Further, while we find it concerning that Ray did not visit with W.N. between the time of the mediation and the termination hearing, Ray testified that he did not believe he could visit with W.N. because he had not received the paperwork to prove he had completed his drug test and substance 8 abuse evaluation as required by the mediation agreement. Ray expressed that he did not intend to abandon W.N., and his acts of voluntarily contributing to W.N.’s support and visiting with him, support his intention. Thus, upon our review of the record, we agree with the district court and find Tamara did not prove by clear and convincing evidence Ray abandoned W.N. Id. § 600A.8(3). Because we find that Tamara did not prove by clear and convincing evidence that Ray abandoned W.N., we need not examine whether termination of Ray’s parental rights is in W.N.’s best interests. See In re R.K.B., 572 N.W.2d 600, 602 (Iowa 1998). Accordingly, upon our de novo review, we affirm the district court’s order dismissing her petition. AFFIRMED.

01-03-2023

10-14-2015

https://www.courtlistener.com/api/rest/v3/opinions/3062383/

IN THE COURT OF APPEALS OF IOWA No. 15-1411 Filed October 14, 2015 IN THE INTEREST OF P.R., Minor Child, K.M., Mother, Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Scott County, Mark R. Fowler, District Associate Judge. A mother appeals from a permanency order. AFFIRMED. Steven W. Stickle of Stickle Law Firm, P.L.C., Davenport, for appellant mother. Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, Michael Walton, County Attorney, and Julie Walton, Assistant County Attorney, for appellee State. Carrie Coyle of Carrie E. Coyle, P.C., Davenport, guardian ad litem for minor child. Jean Capdevila, Davenport, attorney for minor child. Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ. 2 POTTERFIELD, Judge. A mother appeals a permanency order. On our de novo review, we affirm the order changing the permanency goal to Another Permanent Planned Living Arrangement. I. Background Facts. P.R., born in 1999, came to the attention of the department of human services (DHS) after he was arrested for theft in July 2014. DHS was not able to locate the child’s parents. An emergency removal order was entered and P.R. was placed in foster care. The mother was eventually contacted via email.1 She was in Georgia. Notes from an August 12, 2014 family team meeting indicate the mother participated via telephone. P.R. was present and expressed his desire to remain in the foster home in Iowa and go to school. The mother indicated she had limited funds. The goal of services was listed as reunification of mother and son, and if reunification could not occur, an alternate route could be Another Permanent Planned Living Arrangement (APPLA), guardianship, or termination/adoption. The case plan called for mother to find stable housing. A child in need of assistance (CINA) hearing was held on September 30, 2014. The mother participated by telephone. After the hearing, the court concluded P.R. was a CINA, finding: [T]he mother left the child, 15 years of age, with a substitute caretaker in December of 2013. The mother has not had any contact with the caretaker and instead communicates with the caretaker through Facebook or e-mail with the [caretaker’s son]. [The mother] has not provided financial or emotional support for 1 The father was not located and did not participate in the juvenile court proceedings. 3 [P.R.] There has been no direct contact with the mother and son, or between the mother and the caretaker. The mother did not provide any guardianship papers or any other documents so that [the caretaker] would be able to provide for [P.R.] Since that occurred, [the caretaker] has kicked [P.R.] out of her home leaving [P.R.] homeless, and he was placed in foster care. After leaving the child with the substitute caretaker, [the mother] moved to Georgia. [P.R.] was not aware as to why his mother moved to Georgia. [The mother] has not maintained contact with [P.R.], instead she has communicated sporadically with [P.R.’s friend] through Facebook or e-mail. During [the mother’s] confusing testimony it came out that she had lived in lowa with . . . Crawford. Crawford had a DHS finding of sexual abuse against one of [the mother’s] children. [The mother] testified that she kicked him out of the residence after that finding. She now lives with Crawford in Georgia. It was clear from the testimony provided by [the mother] that [P.R.] was abandoned, neglected, that [the mother] has not provided the food, clothing, and shelter. [The mother] has provided no degree of care of supervising of [P.R.]. It was also clear from [the mother’s] testimony that she may not have the mental capacity to provide proper care for [P.R.]. A November 2014 DHS report noted the mother was then living in South Carolina with a family member but was hospitalized for pneumonia. P.R. had been expelled from school and was struggling with substance abuse and mental health issues. On December 2, 2014, a dispositional hearing was held. The mother participated by telephone. In the dispositional order, the court noted P.R. had attempted suicide in October and was diagnosed with situational depression. DHS was recommending the child cooperate with substance abuse, mental health, educational, and juvenile court services. The court approved the case plan, ordered the mother to follow through with the case plan—which included a psychological evaluation, and ordered the child remain in foster care. 4 In January 2015, a foster care review board hearing was held. The report includes the following notations: Steve Stickle (mother’s attorney) reported today that . . . (mother) called and left him a message on January 5, 2015. He called her back and left a couple of messages. He has not heard back from her. Steve said [the mother] is trying to find stable housing. She wants [P.R.] back. [The mother] was having some health issues is late October to early December 2014. He said [the mother] had pneumonia. Steve said he does not know the status of [her] psychological evaluation. He said shortly after the Court ordered it she was hospitalized. Amy Huntington (DHS) reported today that she talked to [the mother] on January 5, 2015. As of then, [the mother] was still looking for low income housing in both South Carolina and Georgia. The problem she is having is that she does not have photo identification. This is delaying her getting housing and a PO Box. [The mother] reported to Amy that she has contact via phone and Facebook with [P.R.] The foster parents report phone calls are not very lengthy and can be upsetting to [P.R.] He does not verbalize this they can just tell by his mood. . . . Amy said at the last Family Team Meeting, [the mother] participated via phone. [The mother] said she does not feel she is kept in the loop regarding [P.R.]; or timely [sic]. Amy said she suggested [the mother] call the foster parents to get updates. Amy then said unless she calls or emails [the mother], she does not hear from her. Amy believes the reason she heard from [the mother] on January 5, 2015, was because Amy sent her an email about [P.R.’s] stability staffing, then [the mother] called. Amy said [P.R.] does not want to move to Georgia or South Carolina. He wants to stay where he is. He wants to stay in the home he is in. He told his foster parents he feels like a family. He is bonding with the foster family and extended family and they are to him. The board did not support reunification as a goal noting the mother’s lack of stable housing and P.R.’s expressed desire to stay with the current foster family until he reached eighteen. The board did support P.R.’s current placement. A family team meeting was held on February 17, 2015, at which the foster parents reported P.R. was having mental health and behavioral issues, including researching ways to self-harm. The foster parents had given DHS a ten-day 5 notice to have P.R. removed from the home but were willing to have him return if he received appropriate help. On February 25, 2015, the dispositional order was modified and P.R. was placed in a youth shelter pending an available opening in a Psychiatric Medical Institution for Children (PMIC) facility. P.R. attempted suicide while in the shelter; he was placed in a PMIC on March 6. A March 4, 2015 foster care review report noted the mother was informed “a large hurdle for [the mother] is that an [Interstate Compact for the Placement of Children] ICPC study cannot be done because of [the mother] not having stable housing.” The board again noted it did not support the goal of family reunification. “The [board] recommends the Permanency Goal be changed to APPLA.” A March 9, 2015 DHS report to the court indicated the mother was “still residing in South Carolina with a friend until she can secure her own housing.” The mother became aware on March 4 (at the foster care review hearing) that she was to have a psychological evaluation, and DHS had not yet “had an opportunity to locate a facility in her area to conduct the evaluation.” It was also reported that DHS had not been able to request an ICPC home study “due to [the mother’s] current housing situation.” A review hearing was held on March 17, 2015. The mother participated by telephone. The juvenile court entered a review order on April 9, finding “reasonable efforts have been made to prevent placement of the child out of the parental home.” The court ordered the child remain in the custody of DHS with placement in a recovery center. 6 A June 30, 2015 DHS report to the court indicated the mother “is still residing in South Carolina with a friend” and had reported “she is actively looking for housing and has been approved for a housing program” and had started a part-time job. An ICPC study had not been requested. A permanency hearing was held on July 23, 2015. Social worker Amy Huntington testified that DHS was recommending APPLA because P.R. could not be returned home; his mother “resides in the state of South Carolina and, to my knowledge is homeless, and so the Department has not been able to request an interstate compact for placement.” Moreover, P.R. “wants to stay in Iowa, and wants to reside with the current foster parents.” She testified P.R. was very bonded with the foster parents, who had played an active role in his treatment and would ensure he continued to receive recommended services. Huntington testified APPLA would allow P.R.’s continued participation in behavioral health services, mental health services, and substance abuse treatment. The mother testified that she was currently living in South Carolina in a shelter looking for a residence. She stated she had received a call from an Iowa apartment complex stating they had placed her name on a waiting list but “I cannot come up there and look at an apartment, and I wouldn’t have any place to stay if I was there, so it’s just kind of hard.” She testified that if given more time to get housing she would be willing to ensure P.R. would get the services he needs while in her care. “I most definitely would. Even if I have to go back to Davenport because [P.R.] doesn’t want to move here . . . .” The mother stated she tries to contact P.R. weekly or at least every other week. She asked for 7 additional time to gain housing and she asked that she and P.R. receive family therapy. P.R.’s attorney informed the court per P.R.’s request that P.R. wanted to stay in Iowa with his foster family and that he was not interested in participating in family therapy with his mother. The court entered its permanency order on August 6, 2015, changing the permanency goal to APPLA as recommended by DHS and the guardian ad litem. On appeal, the mother argues reasonable efforts have not been made to reunify mother and child, and that the court should have granted her an additional six months to obtain stable housing. II. Scope of Review. We review permanency rulings de novo. In re A.A.G., 708 N.W.2d 85, 90 (Iowa Ct. App. 2005). III. Discussion. The juvenile court noted the mother’s complaints about services: [The mother] complained during the hearing that the Department of Human Services has not provided her any services. The Department of Human Services has not been able to request an interstate compact for the placement of children home study for [the mother] due to her current housing situation. In addition, [the mother] has provided no relatives for the Department to explore as possible placement options. [The mother] has not seen [P.R.] since she left Iowa. When [the mother] left, she had not even spoken to [the person with whom she left P.R.] about caring for [P.R.] She had just discussed [the person] caring for [P.R.] through [the person’s] son. The Court also notes that at one point [the mother] turned down an opportunity to have an apartment . . . in Davenport. The following services have been provided to the family: family team meetings, family foster care, substance abuse evaluation and treatment, shelter placement, placement in a PMIC, and stability staffing. These constitute reasonable efforts by the Department to prevent removal of the child from the parental home. 8 We are not convinced the mother’s complaints about services were timely; they were not expressed to the court until the permanency hearing. See id. at 91 (“The Department has an obligation to make reasonable efforts toward reunification, but a parent has an equal obligation to demand other, different, or additional services prior to a permanency or termination hearing.”); see also In re C.B., 611 N.W.489, 495 (Iowa 2000) (“This case emphasizes the critical need for services to be implemented by the DHS early in the intervention process and for the parents to actively and promptly respond to those services, as well as to voice any problems with services so changes or corrections in the case plan can be made.”). In any event, we agree with the juvenile court that under the circumstances presented, the mother’s extended absence from the child’s life, and the child’s needs and expressed wishes, the child’s best interest lies in the permanency order entered. We therefore affirm. AFFIRMED.

01-03-2023

10-14-2015

https://www.courtlistener.com/api/rest/v3/opinions/8540618/

La Jueza Asociada Señora Fiol Matta emitió la opinión del Tribunal. Nos corresponde determinar si un producto para la im-permeabilización de techos compuesto mayormente por una sustancia derivada del petróleo está exento del pago del Impuesto sobre Ventas y Uso (IVU) establecido por la Ley Núm. 117 del 4 de julio de 2006, conocida como la Ley de Justicia Contributiva. Como veremos, la solución ade-cuada de esta controversia requiere un ejercicio integral de interpretación estatutaria que no puede limitarse al exa-men aislado de las diversas secciones de las leyes y regla-mentos aplicables. I La peticionaria Dañosa Caribbean, Inc. (Dañosa) se de-dica a la manufactura de productos derivados del petróleo, particularmente, pero no exclusivamente, el asfalto. Los productos principales manufacturados por la peticionaria son impermeabilizantes de techo. El 27 de febrero de 2007, Dañosa solicitó al Departamento de Hacienda una exen-ción del pago del Impuesto sobre Ventas y Uso (IVU), ale-gando que la Ley Núm. 117 excluía los productos derivados del petróleo del concepto de propiedad mueble tangible su-jeto al IVU. Dado que la sustancia principal empleada en sus productos terminados es el asfalto, un derivado del pe-tróleo, Dañosa sostiene que ello le exime automáticamente del pago del IVU. Por su parte, el Negociado de Asistencia Contributiva y Consultas Especiales del Departamento de Hacienda denegó la petición de Dañosa, expresando que los productos manufacturados por la peticionaria “no se *1014identificaban como productos derivados del petróleo”.!1) La agencia basó su determinación en una lectura complemen-taria de la Sección 2005 del Código de Rentas Internas de 1994, vigente al momento, y el Reglamento Núm. 7249 del Departamento de Hacienda. Acto seguido, Dañosa apeló a la Secretaría de Procedimiento Adjudicativo de dicha agencia. Por su parte, el organismo apelativo administra-tivo concluyó que “no e[s] ostensible que los productos ma-nufacturados por Dañosa fueran identificados en el comer-cio como productos de petróleo; que se mercadeaban como producto de impermeabilización; que ninguno de los nom-bres comerciales de los productos se identificaban como productos de petróleo”, por lo que no estaban incluidos en-tre las exenciones al IVU.(2) Inconforme con la determinación de la agencia, Dañosa recurrió al Tribunal de Apelaciones, que confirmó la deci-sión recurrida. Según el foro intermedio, la regla general en cuanto al IVU es que éste aplicará a todas las transac-ciones comerciales, a menos que caiga dentro de una de las excepciones establecidas. De igual forma, el tribunal enfa-tizó que los artículos derivados del petróleo excluidos del IVU estatutariamente tenían en común la característica de ser combustibles. En particular, el foro apelativo observó que el esquema estatutario contributivo vigente se basaba en la regla general que los productos que pagaran arbitrios estarían excluidos del IVU, y viceversa. Por lo tanto, recu-rrió a la parte del Código de Rentas Internas que gobierna el cobro de arbitrios, según quedó enmendado por la Ley Núm. 117. El Tribunal de Apelaciones se percató que esas secciones del Código sobre arbitrios incluían la gasolina, el combustible de aviación, el “gas oil” o “diesel oil” y otros productos derivados del petróleo. Es decir, que para evitar la doble tributación, el legislador excluyó del IVU aquellos productos que pagaban arbitrios, mientras que excluyó del *1015pago de arbitrios aquellos productos susceptibles del IVU. Dado que los productos de Dañosa estaban excluidos del pago de arbitrios, el Tribunal de Apelaciones resolvió que éstos estaban incluidos en el concepto de propiedad mueble tangible sujeto al IVU. En cuanto a la alegación de Dañosa de que el Regla-mento aprobado por el Departamento de Hacienda añadió de manera ultra vires el requisito de que los productos exi-midos del IVU tenían que ser comúnmente identificados como derivados del petróleo, en aparente contradicción con la Ley Núm. 117, el Tribunal de Apelaciones resolvió que la agencia no incorporó requisito adicional alguno, sino que recurrió a la sección vigente del Código de Rentas Internas sobre el cobro de arbitrios que expresamente excluía como productos sujetos al pago de arbitrios aquellos derivados del petróleo “que luego de terminados no se identifican como productos de petróleo gravados por este Subtítulo”Xa(3) Es decir, que el Reglamento de la agencia adoptó el len-guaje inclusivo de la sección sobre el pago de arbitrios para que correspondiera con los requisitos de la exención al pago del IVU. De esa forma, como el Reglamento era compatible con la totalidad del Código de Rentas Internas se-gún quedó enmendado por la Ley Núm. 117, el Tribunal de Apelaciones resolvió que el Reglamento era válido y, por lo tanto, los productos de Dañosa estaban sujetos al pago del IVU. Dañosa recurrió ante este Tribunal y presentó varios argumentos. En primer lugar, sostiene que la Ley Núm. 117 únicamente establece como requisito para quedar exi-mido del pago del IVU que el producto manufacturado sea un derivado del petróleo u otra mezcla de hidrocarburos. Por lo tanto, entiende que una vez se determina que la composición química de un producto lo clasifica como ma-yormente derivado del petróleo, ello es suficiente para que-*1016dar excluido de la definición de propiedad mueble tangible sujeta al IVU.(4) Como la ley del IVU no impone otro requi-sito, Dañosa alega que el Departamento de Hacienda actuó ultra vires al requerir, además de la composición química, que el producto se identifique comúnmente como derivado del petróleo. Insiste en que ante esa contradicción, el Re-glamento debe ceder a la voluntad legislativa. En la alter-nativa, Dañosa argumenta que el criterio reglamentario es vago y arbitrario y que las etiquetas comerciales de sus productos evidencian que éstos son derivados del petróleo, cumpliendo así el requisito reglamentario.(5) El 21 de octubre de 2011 expedimos el auto de certiorari y solicitamos al Procurador General que, en su alegato, diera particular atención a lo planteado por la peticionaria en cuanto a la validez de la sección del Reglamento que incorporó el requisito previamente aludido, a la luz de la Ley Núm. 117. En su comparecencia, el Procurador General adelanta varios argumentos que son altamente ilustradores. En primer lugar, cuestiona el estándar de re-visión de “evidencia sustancial” propuesto por Dañosa, pues dicho estándar aplica en los procesos adjudicativos, mientras que el ataque de la peticionaria a la validez del reglamento requiere un estándar que mida el ejercicio de la facultad legislativa de la agencia. Lo que procede, por lo tanto, es determinar si el reglamento es arbitrario o capri-choso, o si se excede de lo autorizado por la legislatura. De igual forma, el Procurador General nos invita a que analicemos el esquema contributivo del IVU en su totali-*1017dad, haciendo referencia constante tanto a la política pú-blica que lo apoya como a las demás secciones del Código de Rentas Internas que lo complementan. Es decir, que no estudiemos únicamente las secciones del Código relaciona-das con el IVU, sino que hagamos una lectura integral del Código en su totalidad, particularmente la parte referente a los arbitrios. De esa lectura integrada, el Procurador de-riva varias conclusiones: (1) que el elemento común para la exención del pago del IVU a productos derivados del petró-leo es que sirvan como combustibles; (2) que el diseño le-gislativo de incluir ciertos productos en el pago de arbitrios mientras se excluyen del IVU es evitar la doble tributa-ción, y (3) que el requisito de que el producto eximido se identifique comúnmente como derivado del petróleo se in-cluyó en el Reglamento del Departamento de Hacienda precisamente porque estos productos así identificados es-tán sujetos al pago de arbitrios. II Antes de aprobarse la Ley Núm. 117 del 4 de agosto de 2006, la mayoría de los productos vendidos en Puerto Rico estaban sujetos al pago de arbitrios generales, entre estos la gasolina y otros combustibles derivados del petróleo. El tema del pago de contribuciones producto de la venta de estos productos derivados del petróleo ha sido una constante en nuestro ordenamiento tributario. Mediante la Ley Núm. 2 de 20 de enero de 1956,(6) se estableció un impuesto sobre artículos de uso y consumo en Puerto Rico que incluyó la gasolina y otros combustibles como el gas oil y el diesel o¿Z.(7) Igualmente presente han estado las exenciones al pago de contribuciones de algunos de estos *1018productos.(8) En 1987, se aprobó la Ley de Arbitrios de Puerto Rico que derogó la Ley Núm. 2 y estableció un es-quema tributario integral.(9) La Sección 2.001 de esa Ley establecía: Se impondrá, cobrará y pagará, a los tipos prescritos en las secciones 2.002 a 2.010, inclusive, de este Capítulo, un arbitrio sobre el azúcar, el cemento fabricado localmente o introducido en Puerto Rico, los cigarrillos, la gasolina, el combustible de aviación, el “gas oil” o “diesel oil”, el petróleo crudo, los produc-tos parcialmente elaborados y terminados derivados del petró-leo, así como sobre cualquier otra mezcla de hidrocarbu-ros ....(10) Por otra parte, la Ley de Arbitrios de 1987 distinguía entre aquellos productos identificados específicamente como combustibles —gasolina, combustible de aviación, “gas oil” y “diesel oil” — (11) y otros derivados del petróleo.12) De igual forma, por razones de política pública la ley ex-cluyó algunos de estos productos del pago de arbitrios.(13) Otros productos, como el asfalto, el etano y butano, entre otros, también fueron excluidos del pago de arbitrios, aun-que con efectos distintos de los que correspondían a los productos mencionados en la Sección 2.006.14) Es decir, no se trató de igual forma a todos los derivados del petróleo, *1019pues la exclusión total respondía más a cuestiones de polí-tica pública que a la mera composición química de los productos. El esquema contributivo cambió en 1994 con la aprobación del Código de Rentas Internas, vigente al momento de la controversia de autos/15) Este Código derogó la Ley de Arbitrios de 1987 e incluyó un subtítulo dedicado exclusivamente al tema de los arbitrios/16) De esta forma, el cobro de arbitrios pasó a ser una parte de un esquema contributivo más amplio cuyos diferentes componentes se complementarían entre sí. La Sección 2005 del Código de Rentas Internas de 1994 estableció un arbitrio general sobre artículos vendidos en Puerto Rico: Se impondrá, cobrará y pagará a los tipos prescritos en la[s] sees. 9006 a 9015, inclusive, de esta Parte un arbitrio sobre el azúcar, las bebidas carbonatadas, el cemento fabricado local-mente o introducido en Puerto Rico, los cigarrillos, la gasolina, el combustible de aviación, el “gas oil” o “diesel oil”, el petróleo crudo, los productos parcialmente elaborados y terminados de-rivados del petróleo, así como sobre cualquier otra mezcla de hidrocarburo, los vehículos de motor .... La aplicación de este impuesto estará sujeta a las exenciones establecidas en el Ca-pítulo 866 de esta Parte/17) Como se puede notar de lo anterior, el texto estatutario original, en cuanto a los arbitrios sobre la gasolina y demás derivados del petróleo, ha perdurado a través del tiempo. Igualmente constantes han sido las excepciones de todo tipo de tributación concedidas a algunos productos de pe-tróleo utilizados para ciertos fines específicos, como la ge-*1020neración de electricidad por la Autoridad de Energía Eléc-trica y la exportación/18) Al igual que la Ley de Arbitrios de 1987, el Código de Rentas Internas de 1994 dividió en dos secciones separadas, pero secuenciales, el trato contributivo correspondiente a la gasolina y demás combustibles, y la de los otros productos derivados del petróleo/19) Ahora bien, desde 1994 están excluidos del pago de arbitrios aquellos derivados del petróleo y cualquier otra mezcla de hidrocarburos “que luego de terminados no se identifican como productos de petróleo gravados por esta Parte”.(20) Es decir, fueron excluidos del pago de arbitrios algunos productos que, a pesar de ser derivados del petróleo por razones de su composición química, no eran identificados como tal, por lo cual serían tratados de manera distinta. Finalmente, cabe destacar que tras varias enmiendas a las Secciones 2005, 2010 y 2011 del Código de Rentas Internas, el mandato legislativo se mantuvo igual/21) Posteriormente, las Secciones 2010 y 2011 del Código de 1994 pasaron a ser las Secciones 2009 y 2010, respectivamente. La Ley Núm. 117 de 4 de julio de 2006, conocida como la Ley de la Justicia Contributiva, enmendó varias disposiciones del Código de Rentas Internas de 1994 para, entre otras cosas, crear un Impuesto sobre Ventas y Uso (IVU). Por eso, las secciones relativas al IVU deben anali-*1021zarse e interpretarse como parte del Código de Rentas In-ternas, según quedó enmendado, y no como un esquema tributario aislado e independiente. Veamos ahora más de cerca la Ley Núm. 117. La Exposición de Motivos de la ley, en lo pertinente, lee como sigue: El arbitrio general se sustituye por un IVTJ. Los productos que antes estaban sujetos al arbitrio general estarán sujetos al IVU. Se mantienen arbitrios sobre ciertos artículos que, por sus peculiaridades, requieren disposiciones separadas, estos son: los cigarrillos, la gasolina y otros combustibles, los vehí-culos y las bebidas alcohólicas. Las exenciones al IVU se limitan a medicamentos recetados y otras exenciones vinculadas con el desarrollo económico de Puerto Rico o inherentes a ion sistema de IVU, entre ellas la materia prima para la manufactura, productos exportados y los combustibles comprados por la Autoridad de Energía Eléc-trica para la producción de energía eléctrica. Por otra parte, la asignación de los impuestos de venta sobre gasolina y otros combustibles ...se mantienen.(22) Según se deduce claramente de la Exposición de Moti-vos, el objetivo perseguido por la Ley Núm. 117 era crear un esquema contributivo que combinara el cobro de arbi-trios con el pago del IVU. De esa manera, la mayoría de los productos vendidos en Puerto Rico, salvo algunos que que-daron excluidos totalmente por razones de política pública, estaría sujeto a una de estas contribuciones. Para ello, la Asamblea Legislativa atemperó el Subtítulo de arbitrios (B) con el nuevo subtítulo del IVU(BB). El Artículo 16 de la Ley Núm. 117 enmendó varias sec-ciones del Subtítulo B del Código de Rentas Internas, rela-tivo al cobro de arbitrios. Entre las secciones que tratan sobre los productos derivados del petróleo, la Sección 2005 del Código de Rentas Internas, supra, quedó modificada de la manera siguiente: *1022Se impondrá, cobrará y pagará, a los tipos establecidos en las secciones 2006 a 2010, inclusive, de este Subtítulo un ar-bitrio sobre el cemento fabricado localmente o introducido en Puerto Rico, productos plásticos, la introducción o fabricación de cigarrillos, la gasolina, el combustible de aviación, el “gas oil” o “diesel oil”, el petróleo crudo, los productos elaborados y terminados derivados de petróleo, así como sobre cualquier otra mezcla de hidrocarburos, y los vehículos de motor. El ar-bitrio fijado regirá si el artículo ha sido introducido, vendido, consumido, usado, traspasado o adquirido en Puerto Rico, y se pagará una sola vez, en el tiempo y en la forma especificados en el Capítulo 6 de este Subtítulo. La aplicación del impuesto estará sujeto a las exenciones concedidas en el Capítulo 3 de este Subtítulo. 13 L.P.R.A. see. 9010 (ed. 2007). Por otra parte, la Ley Núm. 117 también enmendó las Secciones 2009 y 2010 (antes 2010 y 2011), las que atien-den, respectivamente y de manera más específica, el cobro de arbitrios para la gasolina y otros combustibles, así como el petróleo crudo y otros derivados del petróleo. La nueva Sección 2009 del Código de Rentas Internas atendió espe-cíficamente el caso de los “combustibles”, tales como la ga-solina, el combustible de aviación y el “gas oil” o “diesel oil”.(23) En particular, la Sección 2009 enmendada definió detalladamente qué constituía un combustible y excluyó varios gases licuados como el propano, butano, etano, eti-leno, butileno y cualquier mezcla de los mismos.(24) Ahora bien, el Artículo 16 de la Ley Núm. 117 añadió una parte importante a la Sección 2009: “Los artículos, incluyendo la gasolina, el combustible de aviación y el ‘gas oil’ o ‘diesel oil’ o cualquier otro combustible, sujeto a las disposiciones de esta sección estarán exentos de los impuestos de venta y uso establecidos en la Parte TV-A de este subtítulo”.(25) De esa manera, a la gasolina y demás combustibles se les apli-caría un arbitrio pero estarían excluidos del IVU para evi-tar la doble tributación. *1023Por su parte, la Sección 2010 enmendada atendió el co-bro de arbitrios al petróleo crudo y otros derivados de pe-tróleo que no cayeran bajo la clasificación de combustibles de la Sección 2009:(26) Además de cualquier arbitrio fijado en esta parte, se impon-drá, cobrará y pagará un impuesto por el uso en Puerto Rico de petróleo crudo, de productos parcialmente elaborados o de productos terminados derivados del petróleo y de cualquier otra mezcla de hidrocarburos a los tipos filados en la siguiente tabla .,..(27) Esta regla general de tributación a los productos deri-vados del petróleo tendría ciertas exenciones: (c) Exclusiones del gravamen — El impuesto fijado en esta sección no será aplicable al: (1) Petróleo crudo, productos parcialmente elaborados, los productos terminados derivados del petróleo, ni a cualquier otra mezcla de hidrocarburos utilizado por la Autoridad de Energía Eléctrica para generación de electricidad. (5) Petróleo crudo, productos parcialmente elaborados, productos terminados derivados del petróleo o cualquier otra mezcla de hidrocarburos utilizada en la elaboración de artícu-los que luego de terminados no se identifican como productos de petróleo gravados por esta parte. Toda persona cubierta por esta exención deberá tener el reconocimiento y autorización previa del Secretario [de Hacienda]. (9) Los artículos, incluyendo el petróleo crudo, los produc-tos parcialmente elaborados o los productos terminados deri-vados del petróleo y de cualquier otra mezcla de hidrocarbu-ros, sujetos a las disposiciones de esta sección estarán exentos de los impuestos de venta y uso establecidos en la Parte TV-A de este subtítuloj(28) De lo anterior surgen con meridiana claridad dos asuntos fundamentales. Primero, que la exclusión del pago *1024de arbitrios de los productos derivados del petróleo se li-mitó a aquellos que no se identificaran como tal. Es decir, que si el artículo en cuestión, a pesar de tener una compo-sición química que lo clasifica como un producto derivado del petróleo, no se identifica como tal, estará excluido del pago de arbitrios. En segundo lugar, y como consecuencia de lo anterior, surge que los artículos que luego de termi-nados no se identifican como productos derivados del pe-tróleo no estarán excluidos del pago del IVU. De esta ma-nera, un artículo manufacturado con productos derivados del petróleo que no se identifica como tal estará excluido del arbitrio pero estaría incluido en el IVU. Tras modificar el esquema del cobro de arbitrios dispuesto en el Subtítulo B, la Ley Núm. 117 introdujo un nuevo Subtítulo BB para estructurar el cobro del impuesto sobre ventas y uso. Por su importancia, reproducimos las secciones relevantes a la controversia de autos: (dd) — Partida Tributable Propiedad mueble tangible, servicios tributables, derechos de admisión y transacciones combinadas.!(29) (jj) — Propiedad mueble tangible Incluye artículos o propiedad mueble que puede ser vista, pesada, medida o palpable, o es de cualquier forma perceptible a los sentidos, o que es susceptible de apropiación, incluyendo programas de computadoras y tarjetas prepagadas de llama-das, entre otros. El término “propiedad mueble tangible” ex-cluye el dinero o el equivalente de dinero, acciones, bonos, no-tas, pagarés, hipotecas, seguros, valores u otras obligaciones; automóviles, propulsores, omnibuses y camiones; los intangibles; la gasolina, combustible de aviación, el “gas oil” o “diesel oil”, el petróleo crudo, los productos parcialmente elaborados y terminados derivados del petróleo, y cualquier otra mezcla de hidrocarburos; la electricidad generada por la Autoridad de Energía Eléctrica o cualquier otra entidad generadora de elec-tricidad; y el agua suplida por la Autoridad de Acueductos y Alcantarillados.(30) *1025Como puede notarse, al enmendar el Subtítulo B y aña-dir el Subtítulo BB del Código de Rentas Internas de 1994, la Asamblea Legislativa diseñó un sistema contributivo ba-sado, en parte, en una combinación de arbitrios y del IVU. Por eso la legislatura utilizó un texto virtualmente idéntico para la Secciones 2005, 2010(a) y 2010(c) (Subtítulo B - Arbitrios) y la Sección 2301(jj) (Subtítulo BB - IVU). Por un lado, la Sección 2010(c) incluyó en el pago de arbitrios los productos derivados del petróleo, excluyendo los que no se identifican como tal. Por otro lado, esta sección excluyó del pago del IVU a los productos que sí se identifican como derivados del petróleo. En esa misma dirección, la Sección 2301(jj) excluyó del pago del IVU los productos incluidos en la Sección 2005 y no excluidos por la Sección 2010(c). De esa manera se intentó precisar la combinación arbitrios-IVU incluyendo en uno lo que se excluía del otro. Por su parte, en el uso de sus amplios poderes de reglamentación,!31) el Secretario de Hacienda aprobó el Reglamento Núm. 7249 de 14 de noviembre de 2006.(32) Según el preámbulo, “[e] ste Reglamento recoge las disposiciones del Subtítulo BB del Código y otras disposiciones complementarias del Código y provee, en el mayor grado de detalle posible, explicaciones prácticas y ejemplos de transacciones con el fin de dar certeza en cuanto a la aplicación del IVU”.(33) Es decir, que al adoptar el Reglamento, se tomó en consideración tanto el Subtítulo BB (IVU) como el Subtítulo B (Arbitrios), de manera que el Reglamento canalizara la totalidad del esquema contributivo establecido *1026por el Código de Rentas Internas, según enmendado por la Ley Núm. 117. El Artículo 2301 — l(jj)(2) del Reglamento Núm. 7249 excluye del pago del IVU: [L]a gasolina, el combustible de aviación, el “gas oil” o “diesel oil”, el petróleo crudo, los productos parcialmente elabora-dos y terminados derivados del petróleo, y cualquier otra mez-cla de hidrocarburos, tales como propano, butano, etano, propileno, butileno y cualquier mezcla de los mismos. Sin embargo, los productos parcialmente elaborados y productos ter-minados derivados del petróleo que luego de terminados co-múnmente no se identifiquen como productos de petróleo, se considerarán propiedad mueble tangible!(34) Según la peticionaria Dañosa, esta última oración de la Sección 2301-l(jj)(2) del Reglamento es ultra vires, pues incorpora un elemento que no fue establecido por la legis-latura; entiéndase, que el producto derivado del petróleo no se identifique comúnmente como tal. Si bien es cierto que la Sección 2301(jj) del Subtítulo BB del Código de Ren-tas Internas no incluye ese elemento, no podemos olvidar que la Sección 2010(c)(5) del Subtítulo B sí lo menciona. De esa forma, el Reglamento tomó en consideración la totali-dad del Código de Rentas Internas y logró establecer con mayor precisión lo que la Asamblea Legislativa quiso ha-cer: excluir del IVU únicamente aquellos productos deriva-dos del petróleo que pagan arbitrios y aquellos cuya exclu-sión estuviese basada en consideraciones de política pública. No podemos olvidar que el Reglamento Núm. 7249 se fundamentó en la totalidad del Código de Rentas Inter-nas de 1994 y no únicamente en el Subtítulo BB. En ese sentido, el Secretario podía incorporar a la Sección 2301-l(jj)(2) el texto estatutario utilizado en la Sección *10272010(c)(5) del Subtítulo B. De esta manera, además de evi-tar la doble tributación, se impide que un producto quede incorrectamente libre de toda contribución, salvo los casos expresamente excluidos tanto del arbitrio como del IVU. Por último, cabe destacar que el Código de Rentas Internas de 2011 mantuvo el esquema contributivo previamente explicado.(35) En cuanto al Reglamento Núm. 7249, no podemos per-der de perspectiva que éste debe conformarse a la totali-dad del Código de Rentas Internas, según quedó enmen-dado por la Ley Núm. 117, y no únicamente al Subtítulo BB. Por eso, el Reglamento incorporó el texto estatutario empleado en otras partes del Código, de manera que se pudiese aplicar adecuadamente el esquema contributivo adoptado por la Legislatura. Por lo tanto, es forzoso con-cluir que el Reglamento no es ultra vires. De igual forma, no podemos olvidar que en nuestro ordenamiento tributa-rio, si bien se aplicará una interpretación restrictiva en contra del Estado y a favor del ciudadano cuando haya duda sobre el cobro de una contribución, en el caso especí-fico de exenciones, excepciones y alivios contributivos, la norma interpretativa es que "toda duda debe resolverse en contra de la existencia de la exención”.!(36) En resumen, mediante las enmiendas introducidas por la Ley Núm. 117, se adoptó un esquema contribu-*1028tivo que combinó arbitrios con el Impuesto sobre Ventas y Uso. En particular, se diseñó un sistema basado, primera-mente, en la exclusión de ciertos productos de toda carga contributiva y, en segundo lugar, en evitar la doble tribu-tación del resto de los productos. Así, todo producto in-cluido en el pago de arbitrios estaría excitado del IVU. En sentido contrario, los productos excluidos del cobro de ar-bitrios estarán sujetos al IVU. En virtud de lo anterior, resolvemos que los productos cuya composición química los clasifica como derivados del petróleo pero que comúnmente no se identifican como tal, estarán sujetos al pago del Impuesto sobre Ventas y Uso establecido en el Código de Rentas Internas. III En el caso de autos, los productos manufacturados por Dañosa son, en términos de su composición química, deri-vados del petróleo. No obstante, a juicio del Departamento de Hacienda, estos productos terminados —utilizados ma-yormente para sellar techos— no se identifican común-mente como tal. De ser así, no estarían excluidos del pago del IVU por disposición de las Secciones 2010(c)(5) y 2301(jj) del Código de Rentas Internas y el Artículo 2301-l(jj)(2) del Reglamento Núm. 7249. En cuanto a ello, la peticionaria adelanta dos argumentos. Expone, en primer lugar, que el criterio de “que luego de terminados comúnmente no se identifiquen como produc-tos del petróleo” es vago y carece de parámetros/37) Por lo tanto, se presta para una interpretación y aplicación arbi-traria y caprichosa. En la alternativa, sostiene que el que las etiquetas de sus productos identifiquen a los mismos como derivados del petróleo cumple la exigencia reglamentaria. *1029En cuanto al primer planteamiento, hay que hacer un señalamiento de entrada. No podemos olvidar que el crite-rio impugnado de “que luego de terminados no se identifi-quen como productos del petróleo” existe tanto estatutaria-mente en la Sección 2010(c)(5) del Código de Rentas Internas de 1994 —Sección 3020.07(i)(5) del Código de 2011— como reglamentariamente en el Artículo 2301-l(jj)(2) del Reglamento Núm. 7249. Por lo tanto, no pode-mos abordar el asunto exclusivamente desde la óptica de impugnación de reglamentos, pues se está cuestionando igualmente el diseño legislativo. En el contexto estatutario, “una ley es nula por vaguedad si sus prohibiciones no están claramente definidas”.(38) Hemos resuelto que una ley adolece de vaguedad si “(1) una persona de inteligencia promedio no queda debidamente advertida del acto u omisión que el estatuto pretende prohibir o penalizar, (2) se presta a la aplicación arbitraria y discriminatoria, y (3) interfiere con el ejercicio de derechos fundamentales garantizados por la Constitución”. (Enfasis suplido).(39) Ahora bien, la doctrina de vaguedad aplica a estatutos de carácter punitivo que prohíben o penalizan. Ese no es el caso ante nuestra consideración. La peticionaria Dañosa, al alegar que el criterio escogido por la Asamblea Legislativa y, por consiguiente, por el Secretario de Hacienda, es arbitrario, caprichoso y potencialmente discriminatorio, está haciendo un planteamiento de debido proceso de ley e igual protección de las leyes. En nuestro ordenamiento, este tipo de impugnación de reglamentación socioeconómica está sujeta a un análisis de racionalidad mínima. (40) Al precisar si una agencia ha excedido su autori-*1030dad en el ámbito reglamentario, corresponde al tribunal evaluar: (1) si a la agencia se le delegó poder de reglamen-tación; (2) si la actuación administrativa está autorizada por ley; (3) si la reglamentación promulgada está dentro de los poderes delegados; (4) si al aprobarse el reglamento se cumplió con las normas procesales de la ley habilitadora de la agencia y la L.P.A.U., y (5) si la reglamentación es arbi-traria o caprichosa.(41) Es decir, en cuanto a la validez de la reglamentación, aplicaremos un análisis de razonabilidad. Ahora bien, en el contexto de un proceso de revisión admi-nistrativa, el estándar aplicable es el de evidencia sustan-cial en el marco de una amplia deferencia al peritaje de la agencia. Evidentemente, el Departamento de Hacienda es la agencia con el peritaje adecuado para atender este tipo de controversia, por lo que los tribunales nos abstendremos de interferir con sus determinaciones de hecho salvo que éstas no tengan apoyo en la evidencia sustancial. En el caso de autos, el Departamento de Hacienda determinó que los productos de impermeabilización de techos de Dañosa no se identifican comúnmente como productos derivados del petróleo. Además, al repasar el desarrollo estatutario de las contribuciones impuestas sobre productos derivados del petróleo, notamos un denominador común entre los productos mencionados: todos son combustible o sustancias relacionadas. Evidentemente, el producto manufacturado por la peticionaria queda fuera de esa definición. Pero lo que es más, ante el amplio grado de deferencia que los tribunales debemos a las determinaciones de las agencias administrativas en estos asuntos, no podemos concluir que la decisión de la agencia sea irrazonable, arbitraria, caprichosa o discriminatoria. Por el contrario, es perfectamente razonable que el Departamento de Hacienda concluya que un sellador de techo compuesto mayormente por asfalto no es un producto comúnmente iden-*1031tificado como derivado del petróleo, para propósitos de una ley que, al identificar los productos derivados de petróleo, se refiere en todo caso a productos que comparten la carac-terística de ser combustibles u otros relacionados. Se trata de una definición con un alto contenido de política pública contributiva que debemos respetar. Dañosa no nos ha puesto en posición de desviarnos de esa conclusión. El que las etiquetas de algunos de los productos de Dañosa se auto identifiquen como derivados del petróleo no derrota la determinación de hecho en contrario de la agencia. En virtud de lo anterior, concluimos que el Tribunal de Apelaciones no erró al confirmar la decisión de la agencia de denegar la solicitud de Dañosa de que se le eximiese del pago del TVU. Por lo tanto, procede confirmar la decisión del foro apelativo. Se dictará sentencia de conformidad. La Juez Asociada Señora Rodríguez Rodríguez no intervino. (1) Sentencia del Tribunal de Apelaciones, Apéndice, pág. 125. (2) íd., pág. 126. (3) (Énfasis suplido). Id., pág. 129, citando la Sección 2010 del Código de Rentas Internas de 1994. (4) En su petición de certiorari, Dañosa explica con detalle el proceso de manu-factura de sus productos, así como la naturaleza física y química de éstos. En particular, nos ofrece como ejemplo varios de sus productos cuya composición química oscila entre 49.3% y 79.7% de asfalto (bitumen) y otros productos derivado del petró-leo como el polímero EBE (SBS), nafta, butadieno, poliéster, entre otros. Petición de certiorari, pág. 4. Por eso nos solicita que ignoremos el ejemplo utilizado en el Re-glamento del Departamento de Hacienda en cuanto al asfalto utilizado en la cons-trucción de carretera, pues dicho producto solamente tiene un 7% de asfalto. Id., esc. 20. (5) Apéndice, pág. 28. (6) Ley de Impuesto Sobre Artículos de Uso y Consumo de Puerto Rico, 13 L.P.R.A. see. 4001 et seq. (ed. 1976). (7) íd., sees. 4030 y 4031, Artículos 30 y 37, respectivamente. (8) Véase, por ejemplo, el Artículo 30(b) de la Ley Núm. 2, supra, sec. 4030(b), que eximía del pago de este impuesto a gasolina que era utilizada por la Guardia Nacional o el gobierno federal, se exportaba fuera de la isla o se catalogaba como contaminada. (9) Ley Núm. 5 del 8 de octubre de 1987, Leyes de Puerto Rico 921. (10) (Énfasis suplido). íd., Sección 2.001, págs. 927-928. (11) íd., Sección 2.005, pág. 929. (12) “Petróleo crudo, Productos Parcialmente Elaborados y Productos Termina-dos Derivados del Petróleo y Cualquier Otra Mezcla de Hidrocarburos”, íd., Sección 2.006. Ahora bien, como veremos más adelante, el elemento común entre todos estos productos es que pueden ser utilizados como combustibles. (13) Véase íd., Sección 2.006(b), págs. 930-931: productos utilizados por la Au-toridad de Energía Eléctrica o el gobierno federal, productos para la exportación y productos a ser utilizados en refinerías o petroquímicas, entre otros. Como veremos, estas excepciones aplicarán a todo tipo de contribución, por lo que no les aplica la regla de que el producto que no paga arbitrios pagará el TVU, y viceversa. (14) íd., Sección 2.008, págs. 933-934. (15) Ley Núm. 120 de 31 de octubre de 1994 (Código de Rentas Internas). (16) Subtítulo B. Como veremos, la Ley Núm. 117 enmendaría el Código de Rentas Internas e incorporaría las secciones relativas al IVU como Subtítulo BB, denotando así un vínculo inexorable entre el cobro de arbitrios y el pago del IVU. (17) (Énfasis suplido). Sección 2005 del Código de Rentas Internas de 1994, 13 L.P.R.A. see. 9005 (ed. 1996). (18) Sección 2011(b), 13 L.P.R.A. sec. 9011(c) (ed. 1996). La Asamblea Legislativa también ha sido consecuente en excluir de esta lista de productos del petróleo algu-nas sustancias como el propano, butano, butileno, entre otros. Sección 2010(b), 13 L.P.R.A sec. 9010(b) (ed. 1996). Estas secciones responden a la numeración original del estatuto. (19) Secciones 2010 y 2011 del Código de Rentas Internas de 1994, 13 L.P.R.A. sees. 9010 y 9011 (ed. 1996). (20) (Enfasis suplido). Sección 2011(b)(5) de la numeración original, ahora Sec-ción 2010(c)(5), 13 L.P.R.A. sec. 9010(c)(5) (ed. 1996). Además, dicha sección dispone que “[t]oda persona cubierta por esta exención deberá tener el reconocimiento y autorización previa del Secretario [de Hacienda]”. (Enfasis suplido). Id. (21) Véanse las Leyes Núm. 78 de 31 de mayo de 1998 y Núm. 200 de 30 de julio de 1999 que incorporaron otros productos eximidos del pago de arbitrios. Ninguno afectó el tipo de producto manufacturado por la peticionaria Dañosa. (22) (Énfasis suplido). Exposición de Motivos de la Ley Núm. 117, págs. 2-3. (23) 13 L.P.R.A. see. 9010 (ed. 2007). (24) íd., sec. 9010(b). (25) (Énfasis suplido). íd., see. 9010(d). (26) Los productos de la peticionaria coinciden más con los productos identifica-dos en esta sección. (27) 13 L.P.R.A. sec. 9011(a) (ed. 2007). (28) (Énfasis suplido). íd., sec. 9011(c). (29) íd., sec. 9091(dd). (30) (Énfasis suplido). íd., sec. 9091(jj). (31) Este poder de reglamentación ha sido delegado consecuentemente por la Asamblea Legislativa. Véase, por ejemplo, el Artículo 78 de la Ley Núm. 2 de 20 de enero de 1956. En la Ley Núm. 117, ese poder está recogido en 13 L.P.R.A. sees. 9091b y 9093(a) (ed. 2007), entre otros. (32) Reglamento para Implantar las Disposiciones del Subtítulo BB - Impuesto sobre Ventas y Uso de la Ley Núm. 120 de 31 de octubre de 1994, según enmendada, conocida como “Código de Rentas Internas de Puerto Rico”. (33) (Énfasis suplido). íd., pág. 1. (34) (Énfasis suplido). íd., Artículo 2301(jj)(2), pág. 33. Acto seguido, el Regla-mento ofrece como ejemplo de las exclusiones provistas por esta sección el asfalto utilizado en las carreteras: “El asfalto, aunque es un producto derivado del petróleo, se considerará propiedad mueble tangible, ya que éste luego de terminado no se identifica como producto de petróleo”. Id. (35) Mediante la Ley Núm. 1 de 31 de enero de 2011, la Asamblea Legislativa aprobó un nuevo Código de Rentas Internas. El cobro de arbitrios está establecido por el Subtítulo C, mientras que el IVU se codifica en el Subtítulo D. En primer lugar, la Sección 3020.01 del Código de 2011 mantiene el arbitrio a la gasolina, ciertos combustibles y los productos derivados del petróleo, manteniendo, para evitar la doble tributación, la exclusión de estos productos en cuanto el IVU. De igual forma, la Sección 3020.07(i)(5) excluye del arbitrio los productos derivados del petróleo “que luego de terminados no se identifiquen como productos de petróleo gravados por este subtítulo. Toda persona cubierta por esta exención deberá tener el reconocimiento y autorización previa del Secretario”. De esa forma, al excluir estos productos del ar-bitrio general, se permite su tributación bajo el IVU. (36) Lever Bros. Export Corp. v. Alcalde S.J., 140 D.RR. 152, 161-162 (1996). Véanse, además, Yiyi Motors, Inc. v. E.L.A., 177 D.P.R. 230, 250-251 (2009) y B.B.C. Realty v. Secretario Hacienda, 166 D.P.R. 498, 508-512 (2005). (37) (Énfasis suprimido). Petición de certiorari, pág. 7. (38) Pacheco Fraticelli v. Cintrón Antonsanti, 122 D.P.R. 229, 239 (1988). (39) (Énfasis suplido). íd., págs. 239-240. (40) Pueblo Int’l., Inc. v. Srio. de Justicia, 122 D.P.R. 703, 721-722 (1988), Op. concurrente del Juez Asociado Negrón García. (41) Pérez v. Com. Rel. Trab. Serv. Pub., 158 D.P.R. 180, 187 (2002).

01-03-2023

11-23-2022

https://www.courtlistener.com/api/rest/v3/opinions/996481/

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 98-6336 FLETCHER LEWIS FARRAR, Petitioner - Appellant, versus NORTH CAROLINA ATTORNEY GENERAL; TOM C. MARTIN, Respondents - Appellees. Appeal from the United States District Court for the Middle Dis- trict of North Carolina, at Greensboro. James A. Beaty, Jr., Dis- trict Judge. (CA-97-313-2) Submitted: September 22, 1998 Decided: October 7, 1998 Before NIEMEYER and WILLIAMS, Circuit Judges, and BUTZNER, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Fletcher Lewis Farrar, Appellant Pro Se. Clarence Joe DelForge, III, OFFICE OF THE ATTORNEY GENERAL OF NORTH CAROLINA, Raleigh, North Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Fletcher Lewis Farrar appeals the district court’s order deny- ing relief on his petition filed under 28 U.S.C.A. § 2254 (West 1994 & Supp. 1998). We have reviewed the record and the district court’s opinion accepting the recommendation of the magistrate judge and find no reversible error. Accordingly, we deny a certif- icate of appealability and dismiss the appeal on the reasoning of the district court. Farrar v. North Carolina Attorney General, No. CA-97-313-2 (M.D.N.C. Feb. 6, 1998). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 2

01-03-2023

07-04-2013

https://www.courtlistener.com/api/rest/v3/opinions/3074759/

Fourth Court of Appeals San Antonio, Texas JUDGMENT No. 04-15-00093-CR EX PARTE Greg SAUL From the 218th Judicial District Court, Wilson County, Texas Trial Court No. 15-01-002-HCW Honorable Russell Wilson, Judge Presiding BEFORE JUSTICE ANGELINI, JUSTICE CHAPA, AND JUSTICE PULLIAM In accordance with this court’s opinion of this date, the trial court’s order denying habeas corpus relief is AFFIRMED. SIGNED July 1, 2015. _____________________________ Luz Elena D. Chapa, Justice

01-03-2023

10-16-2015

https://www.courtlistener.com/api/rest/v3/opinions/3989719/

By this bill in chancery, the plaintiff seeks to restrain the defendant from obstructing a right of way. The case was heard below by Chancellor Davis, who found the facts and thereupon rendered a decree for the plaintiff, permanently enjoining the defendant from obstructing the plaintiff's way as granted by deed and located by user and acquiescence. The defendant appealed. The parties own adjoining house-lots in the City of Barre, the same being parts of lot No. 123. The one owned by the plaintiff lies directly north of the one owned by the defendant and fronts on North Main Street. The defendant's lot fronts on Sixth Street. The plaintiff owns a right of way from Sixth Street across the defendant's lot, which originated in a deed from one Campbell and wife to a former owner of the plaintiff's lot, in which deed the way is described as follows: "A right of way from Sixth St. across the easterly end of the southerly portion of lot. No. 123, sufficient for a team to pass thereon." It thus appears that the way was not located upon the ground by the deed, and if nothing more was shown, the law of the defendant's brief would apply, and the court would locate it with due regard to the interests of the parties, that of the defendant as well as that of the plaintiff. But more was shown, for it is found that as early as August 21, 1911, the plaintiff and her husband — then alive but since deceased — selected and used a location, ten feet wide, near, but several feet from, the easterly line of the defendant's lot, which location, by use, soon became plainly marked upon the ground; and that this location had been acquiesced in by the defendant's predecessors in title from the date of such selection until June 13, 1934, which was the date on which the defendant took title to his lot. Under these circumstances, the ten-foot strip, so used, has become the true location of the way; as much so as if it had been definitely described in the deed or subsequently adopted by an express agreement. The law of this subject is all to be found inLafleur v. Zelenko, 101 Vt. 64, 70 et seq., 141 A. 603, which is full authority for an affirmance here, there being no question about the defendant's garage being an obstruction to the way so located. Decree affirmed. *Page 108

01-03-2023

07-06-2016

https://www.courtlistener.com/api/rest/v3/opinions/3989729/

This is a bastardy proceeding and comes here upon exceptions by the defendant. A normal child was born to the plaintiff on June 28, 1933, which could have been begotten during the period from about the first of September to about the 12th of October, 1932. The defendant denied any intercourse with the plaintiff, and introduced evidence tending to show that the child belonged to another. Early in the direct examination of Burton Allard, a witness called by the defendant, he was asked if he had intercourse with the plaintiff during the last of August, 1932. This question was excluded. Then he was asked: "Was there a time on or about the 15th day of September, 1932, that you had intercourse with this young lady?" This was excluded as asked. If there was any error in excluding these questions, it was harmless, as later in the same direct examination he was permitted to testify to acts of intercourse with the plaintiff on or about August 31, about the middle of September, and during the latter part of September, 1932. Turgeon v. Baker, 105 Vt. 61, 63, 163 A. 588. Mrs. Irene Baker, a witness called by the defendant, testified to an occasion about the 17th day of September, 1932, at about 10.30 p.m., when by the lights of her automobile she saw the plaintiff and Wallace Carter in a car parked by a hedge. In answer to a question she testified: "Well, all I saw was a lot of rustling around getting back into place." She was then asked: "Do you know whether he had his arms around her at the time, could you see?" This was objected to as leading, and the court asked: "Well, are you going to show that they had intercourse?" and the defendant's counsel replied: "Show that they were in a very intimate position at the time." Upon the exclusion of the question, the counsel offered to show "that in the latter part of September, Mrs. Baker went up to the Lawson farm, her headlights were shining on a car that was occupied *Page 484 by this plaintiff and a boy by the name of Carter and she was there in the inside of the car. At that time Carter had his arms around this plaintiff and was hugging her and was close to her." This was excluded subject to exception. The defendant now claims that this was sufficient to show sexual intercourse, but in response to the court's question he did not make that claim; hence, it is not available here. Cummings v. Connecticut Gen.Life Ins. Co., 101 Vt. 73, 79, 142 A. 82. There had been no previous testimony about Carter tending to show improper relations with the plaintiff, and there being no claim of intercourse on this occasion, the offered evidence was immaterial. Maloney v. Piper, 105 Mass. 233; 7 C.J. 990. During the cross-examination of the last witness she was asked: "Where is your husband now?" Upon objection being interposed, plaintiff's counsel said: "I offer to show that her husband is in jail." Whereupon the court said: "Well, you can disregard that gentleman." Upon defendant asking for an exception to the remark, the court said: "You should retract that," and plaintiff's counsel replied: "I will," and the court said: "And you should disregard it." Defendant's counsel then said: "I want an exception nevertheless," and the court replied: "That comes last. Now you should disregard what Mr. Campbell said. It was an improper thing to say and he realizes it now, and you pay no attention to whether he is in jail or isn't in jail is no concern of yours," and allowed an exception. The remark was improper, but in view of the retraction and the remarks of the court, we think the error was sufficiently cured and rendered harmless. State v.Marini, 106 Vt. 126, 144, 170 A. 110, 117; State v. Stacy,104 Vt. 379, 404, 160 A. 257, 747. We cannot assume that the jury did not give due weight to what the court said. State v. Marini,supra; State v. Stacy, supra. The defendant now argues that the retraction was insufficient. This objection was not made below, so we will not consider it here. State v. Marini, supra. Mrs. Lawson, defendant's wife, testified to seeing Wallace Carter and the plaintiff in an automobile by the hedge fence, which was presumably the same occasion testified to as above by Irene Baker. She was asked: "Could you see what they were doing when they were by the hedge fence?" and answered: "They were pretty close together." Plaintiff asked to have the answer struck out, and the court did so. All that *Page 485 defendant's counsel said was: "I want an exception to that. I think that kind of evidence is admissible." This answer was sufficiently irresponsive for the court to strike it out in the exercise of its discretion. Hence error does not appear. It appeared that the plaintiff worked at defendant's house from May to July, 1932, and returned on August 22 and remained through September. Her evidence tended to show that she was also there until the latter part of October, except that she went home October 5 and returned October 10. During the direct examination of Mrs. Lawson she was asked whether or not she saw the plaintiff leave her home with Allard at different times. An objection was interposed and defendant's counsel said: "I want to offer to show that on many occasions during the month of September Charlotte Lohsen, the plaintiff, was away from the Lawson place with Burton Allard and that frequently she came back at two o'clock in the morning and that on different occasions Mrs. Lawson used to go after her to find out where she was and she was out nights away from the place almost habitually in the night. She says that she never left the place." In his brief the defendant now says in effect that this evidence, if received, would have corroborated the testimony of Burton Allard about his relations with the plaintiff and that "it was plainly admissible for two reasons, to show the relations of the parties, their intimacy, and as impeachment of the plaintiff's testimony." We need not determine whether the court should have so interpreted the offer because the question was properly excluded on the offer made. That part of the offer that the witness "on different occasions went after her to find out where she was," at least in the absence of any showing that she found her, was wholly irrelevant and inadmissible. Our rule is that, when a part of an entire offer is inadmissible the whole may be properly excluded. Turgeon v.Baker, supra, at page 63 of 105 Vt., 163 A. 588, and cases cited. After the plaintiff rested, defendant's counsel claiming that the child was admissible, notified plaintiff's counsel in the presence of the court to have it available so that it could be brought in. Whereupon the court inquired as to its age, and was informed by plaintiff's counsel that it was born on June 28 and that he had it in court. Later on, after several witnesses had testified for the defendant, counsel came to the bench and *Page 486 defendant's counsel said: "We desire to make a motion for the production of the child and exhibition of the child to the jury for the reason that the child has a striking resemblance to Burton Allard. That is for the purpose of showing that he is the father of the child." The court after inquiry as to the age of the child, and being informed that it was in court and was less than six months old, and was born on June 28, prior to the date of the trial, which was December 12, said: "Well, we won't make an order that they shall produce a child of that age," and allowed the defendant an exception. The question as to the propriety of exhibiting a child to the jury as evidence of its alleged paternity has never been before this Court. "The English practice seems always to have admitted this evidence without question. In the United States the early practice was probably the same but as the chief use of the evidence was found in filiation proceedings, to charge the defendant with the paternity of a bastard, the possible abuses of the evidence led to an unfortunate questioning of its validity under any circumstances." Wigmore on Evidence § 166. An examination of the decisions of other states now reveals an irreconcilable conflict upon this question. On the one hand, it is maintained "that in the case of very young infants, at least, it is improper to exhibit them, on the ground that such evidence is too vague, uncertain, and fanciful, and, if allowed, would establish not only an unwise, but a dangerous and uncertain rule of evidence, and that while it may be a well known physiological fact that peculiarities of form, feature, and personal traits are oftentimes transmitted from parent to child, yet it is equally true as a matter of common knowledge that during the first few weeks, or even months, of a child's existence, it has that peculiar immaturity of features which characterize it as an infant, and that it changes often and very much in looks and appearance during that period. Resemblance can then be readily imagined. This is oftentimes the case. Frequently such resemblances are purely notional or imaginary. What may be considered a resemblance by one may not be perceived by another having equal knowledge of the parties between whom the resemblance is supposed to exist. The rule that the exhibition of a very young infant is improper has been applied in the case of a child six weeks old, three months old, nine months old, and about a year old. On the other hand, it *Page 487 is maintained "that a child may be exhibited to the jury as evidence of alleged paternity, and as a rule the authorities have laid down the doctrine flatly with no intimation that it was in any way affected by the age of the child. The reason for the doctrine is that the weight to be given to the testimony is for the jury, and its weakness or uncertainty affords no reason for excluding it." We have quoted from 3 R.C.L. p. 764, in making this summary. See, also, notes, 40 A.L.R. 97, and 6 Ann. Cas. 560. Among our neighboring states Maine adheres to the first proposition. In Clark v. Bradstreet, (1888), 80 Me. 454, 15 A. 56, 6 A.S.R. 221, a child of six weeks was found too young to be exhibited. This was followed by Overlook v. Hall (1889), 81 Me. 348, 17 A. 169, holding a child six months old too young. Massachusetts, on the other hand, adheres to the last proposition. In Scott v. Donovan (1891), 153 Mass. 378, 26 N.E. 871, 872, a child less than three months old was held properly admitted in evidence to show resemblance, and Holmes, J., speaking for the court, said: "We see no sufficient reason * * * for taking a distinction according to age. The youth of the child goes rather to the weight of the evidence." If all individuals developed by a fixed rule, it might be possible to fix upon a certain age below which the child should not be exhibited as evidence on this issue; but it is a well-known fact that children vary in development at stated ages; some show considerable maturity of features at a very early age, whereas others do not do so until much later. Consequently we think the middle ground suggested in Wigmore on Evidence, § 166, that "the sound rule is to admit the fact of similarity of specific traits, however presented, provided the child is in the opinion of the trial court old enough to possess settled features or other corporal indications," is the more reasonable to adopt, subject to the qualification that we would not necessarily limit the evidence to specific traits because of the possibility of a case arising of an unmistakable family resemblance which cannot be analyzed. Among the cases following Mr. Wigmore's rule are:Flores v. State (1916), 72 Fla. 302, 73 So. 234, 235, L.R.A. 1917B, 1143, and State v. Anderson (1924), 63 Utah, 171, 224 P. 442, 40 A.L.R. 94. In a well-considered case from New Hampshire,State v. Danforth (1905), 73 N.H. 215, 60 A. 839, 842, 111 A.S.R. 600, 6 Ann. Cas. 557, the state was permitted to exhibit the child to the jury and to argue from peculiarities *Page 488 of features claimed to be common to the child and the defendant and from a general resemblance between them. The court after discussing the practice, quoted approvingly the rule laid down by Wigmore, but said: "Whether it should be here followed is a question which the present case does not raise for decision." Under this rule we think that the granting or denying of a motion for the exhibition of the child to the jury rests in the sound discretion of the trial court. Starting off with the presumption that the court below exercised the discretion which the law required of it, we think that it plainly appears from the record that the court ruled as a matter of law and refused to exercise its discretion. It did not examine the child, but the same as said that any child of that age was too immature to have any probative value upon the matter of its paternity. This was prejudicial error. Judgment reversed, and cause remanded.

01-03-2023

07-06-2016

https://www.courtlistener.com/api/rest/v3/opinions/126250/

537 U.S. 1116 SCOTTv.GONZALEZ, WARDEN. No. 02-6973. Supreme Court of United States. January 13, 2003. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT. 2 C. A. 11th Cir. Certiorari denied.

01-03-2023

04-28-2010

https://www.courtlistener.com/api/rest/v3/opinions/996521/

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 98-6685 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus ROBERT A. GRATE, JR., a/k/a Lloyd, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Albert V. Bryan, Jr., Senior District Judge. (CR-95-13) Submitted: September 30, 1998 Decided: October 15, 1998 Before ERVIN, LUTTIG, and WILLIAMS, Circuit Judges. Dismissed by unpublished per curiam opinion. Robert A. Grate, Jr., Appellant Pro Se. Pamela Watkins, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Robert A. Grate, Jr., seeks to appeal the district court’s order denying his petition for a writ of coram nobis, which was properly construed as a motion filed under 28 U.S.C.A. § 2255 (West 1994 & Supp. 1998). We have reviewed the record and the district court’s opinion and find no reversible error. Accordingly, we deny a certificate of appealability and dismiss the appeal on the rea- soning of the district court. United States v. Grate, No. CR-95-13 (E.D. Va. Apr. 13, 1998). We dispense with oral argument because the facts and legal contentions are adequately presented in the ma- terials before the court and argument would not aid the decisional process. DISMISSED 2

01-03-2023

07-04-2013

https://www.courtlistener.com/api/rest/v3/opinions/2760919/

State of New York Supreme Court, Appellate Division Third Judicial Department Decided and Entered: December 11, 2014 519197 ________________________________ In the Matter of EON SHEPHERD, Petitioner, v MEMORANDUM AND JUDGMENT COMMISSIONER OF CORRECTIONS AND COMMUNITY SUPERVISION, Respondent. ________________________________ Calendar Date: October 21, 2014 Before: Peters, P.J., Lahtinen, McCarthy, Garry and Clark, JJ. __________ Eon Shephard, Wallkill, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent. __________ Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review two determinations of the Superintendent of Shawangunk Correctional Facility which found petitioner guilty of violating certain prison disciplinary rules. Petitioner commenced this CPLR article 78 proceeding to challenge two tier II prison disciplinary determinations that were rendered, respectively, on November 4, 2013 and December 6, 2013. Respondent properly concedes that the November 4, 2013 determination must be annulled, as "[t]his record does not contain an adequate basis to conclude that petitioner refused to attend the hearing or was informed of the consequences of his failure to appear" (Matter of Ifill v Fischer, 79 AD3d 1322, 1323 [2010]; see 7 NYCRR 253.6 [b]).  -2- 519197 Turning to the December 6, 2013 determination, the misbehavior report and hearing testimony provide substantial evidence to support the finding that petitioner violated a prison disciplinary rule by making threats against a correction officer (see Matter of Clark v Fischer, 120 AD3d 1468, 1468 [2014]; Matter of Guillory v Fischer, 111 AD3d 1005, 1005 [2013]). Petitioner's contention that the misbehavior report was issued in retaliation for a grievance he had filed created a credibility issue for the Hearing Officer to resolve (see Matter of Guillory v Fischer, 111 AD3d at 1005). While the Hearing Officer had limited success in complying with petitioner's request that all of the inmates who had witnessed the incident be identified and called to testify, his efforts were sufficient and resulted in several inmates testifying at the hearing (see Matter of Aguirre v Fischer, 111 AD3d 1219, 1220 [2013]). Petitioner thereafter left the hearing by choice and, contrary to his contention, he was not denied the right to be present at the hearing given that he left despite having been informed that the hearing would be concluded in his absence (see Matter of Bermudez v Fischer, 107 AD3d 1269, 1270 [2013]; Matter of Haden v Prack, 62 AD3d 1133, 1134 [2009]). To the extent that petitioner's remaining contentions are properly before us, they have been examined and found to lack merit. Peters, P.J., Lahtinen, McCarthy, Garry and Clark, JJ., concur.  -3- 519197 ADJUDGED that the determination dated November 4, 2013 is annulled, without costs, petition granted to that extent and the Superintendent of Shawangunk Correctional Facility is directed to expunge all references thereto from petitioner's institutional record. ADJUDGED that the determination dated December 6, 2013 is confirmed, without costs, and petition dismissed to that extent. ENTER: Robert D. Mayberger Clerk of the Court

01-03-2023

12-15-2014

https://www.courtlistener.com/api/rest/v3/opinions/2892636/

NO. 07-04-0309-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D MARCH 10, 2005 ______________________________ ROBERT PICKENS, Appellant v. THE STATE OF TEXAS, Appellee _________________________________ FROM THE 140 TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2003-404,445; HON. JIM BOB DARNELL, PRESIDING _______________________________ Before QUINN, REAVIS, and CAMPBELL, JJ. Robert Pickens (appellant) appeals his conviction for evading detention through four issues.  The first two concern whether the trial court erred in denying his motion to suppress evidence while the last two involve the legal and factual sufficiency of the evidence underlying the jury’s verdict.  We affirm the judgment.   Background While returning from a call and at around 9:00 a.m., Officer Calvillo observed a pickup truck parked in an alley behind a house.  It was raining, misty, and cloudy at the time, and no one was seen around the vehicle.  The officer nonetheless continued on.  However, as he did, he noticed that the house behind which the truck was parked appeared vacant and had a “for sale” sign in front of it.  So too did he notice movement in the vehicle after he turned down an intersecting street to gain a different vantage point.  It appeared to the officer that someone was bent over inside the cab as if to retrieve something.   Recalling that several burglaries had recently occurred in the area, that it was a “common occurrence” for vacant homes to be burglarized, and that appliances and air conditioning units were often the objects taken, Calvillo decided to enter the alley behind the truck.  As the officer approached, the truck’s “brake lights come [sic] on” as did its “turn lights,” and the driver began to pull away.  When the vehicle and its occupant (who was later identified as appellant) came to the end of the alley and turned on to the adjoining street, Calvillo engaged his emergency lights.  Appellant looked back at Calvillo and pointed in the direction of another street, but he did not stop.  Instead, appellant sped up.  The officer then turned on his sirens.  Appellant continued on and began to turn down streets in the residential area.  So too did he run a stop sign and drive down a turning lane, both of which were traffic violations according to the officer.  The group eventually stopped after appellant turned onto a dead-end street.  At that point, appellant was arrested.   A search of the vehicle revealed a syringe cap inside the truck.  Furthermore, appellant had thrown a plastic baggy from the truck after encountering Calvillo and as the pair drove through the area.  When the baggy was retrieved, it was discovered to contain syringes and a burned cotton swab.  Appellant also had a fresh needle mark on his arm.   Issues 1 and 2 - Motion to Suppress In his first two issues, appellant contends that the trial court erred in failing to grant his motion to suppress.  Suppression was required because the officer had no basis upon which to initially detain appellant as he drove from the alley, so appellant argues.  We overrule the point. The Court of Criminal Appeals recently held that, in a case wherein the accused is charged with evading arrest or detention, it is improper to request the trial court to rule upon a pretrial motion to suppress evidence when the movant questions the validity of the detention.  Woods v. State, 153 S.W.3d 413, 415-16 (Tex. Crim. App. 2005).  This is so because, under that circumstance, the trial court is being asked to determine whether there is proof of an element of the offense, and that is not the purpose of a pretrial hearing.   Id.   Given that the trial court was prohibited from acting upon appellant’s pretrial motion to suppress, we cannot say that it erred in refusing to grant the motion.   Issues 3 and 4 - Sufficiency of the Evidence In his third and fourth issues, appellant questions the legal and factual sufficiency of the evidence to sustain his conviction.  Purportedly, the evidence was insufficient because Calvillo lacked reasonable suspicion to try and stop appellant as the latter left the alley.  We overrule the points. The standards by which we review legal and factual sufficiency challenges are well established.  We refer the parties to Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), Sims v. State, 99 S.W.3d 600 (Tex. Crim. App. 2003), Zuliani v. State, 97 S.W.3d 589 (Tex. Crim. App. 2003), and King v. State, 29 S.W.3d 556 (Tex. Crim. App. 2000) for their explanation.   No one disputes that the attempt at detention must be lawful before one can be convicted of evading detention.  Moreover, authority holds that even if the initial attempt at detention is unlawful, the suspect may be stopped or arrested for criminal acts which he commits while attempting to avoid the officer.   Blount v. State , 965 S.W.2d 53, 54-55 (Tex. App.–Houston [1 st Dist.] 1998, pet. ref’d).  In other words, the fact that an officer may not have basis to stop a suspect does not insulate the suspect from arrest for other crimes committed while attempting to avoid the initial detention.  So, assuming arguendo that Officer Calvillo lacked both reasonable suspicion and probable cause to detain appellant in the alley, such arose once appellant violated the traffic laws while attempting to evade Calvillo.  And, since evidence appears of record indicating that appellant continued in his effort to evade the officer after violating those laws, the jury had before it sufficient evidence to rationally conclude, beyond reasonable doubt, that the eventual stop was indeed lawful.   See id. at 55 (holding that a suspect is not seized until the stop is effectuated). Furthermore, the evidence was neither weak nor overwhelmed by any contradictory evidence.  Consequently, the verdict enjoyed the support of both legally and factually sufficient evidentiary support. The judgment of the trial court is affirmed. Brian Quinn   Justice Publish.

01-03-2023

09-07-2015

https://www.courtlistener.com/api/rest/v3/opinions/1028639/

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-8283 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. COLIN F. GORDON, a/k/a Big Daddy, a/k/a Christopher A. Donald, a/k/a Daddy, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Charlottesville. James P. Jones, Chief District Judge. (3:04-cr-00023-JPJ-1) Submitted: April 23, 2009 Decided: May 1, 2009 Before MICHAEL, GREGORY, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Colin F. Gordon, Appellant Pro Se. Nancy Spodick Healey, Assistant United States Attorney, Charlottesville, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Colin F. Gordon appeals the district court’s order denying his 18 U.S.C. § 3582(c)(2) (2006) motion for reduction of sentence. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Gordon, No. 3:04-cr-00023-JPJ- 1 (W.D. Va. Oct. 10, 2008). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 2

01-03-2023

07-05-2013

https://www.courtlistener.com/api/rest/v3/opinions/2791685/

NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. IN THE ARIZONA COURT OF APPEALS DIVISION ONE ERNESTO ALONZO MORAN, Petitioner, v. THE HONORABLE ROBERT MILES, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge, WILLIAM MONTGOMERY, Maricopa County Attorney, Real Party in Interest. No. 1 CA SA 15-0053 FILED 4-7-2015 Petition for Special Action from the Superior Court in Maricopa County No. CR2014-105894-001 The Honorable Robert E. Miles, Judge JURISDICTION ACCEPTED; RELIEF GRANTED COUNSEL Shell & Nermyr, PLLC, Chandler By Mark A. Nermyr Counsel for Petitioner Maricopa County Attorney’s Office, Phoenix By David R. Cole Counsel for Real Party in Interest MORAN v. HON. MILES/MONTGOMERY Decision of the Court MEMORANDUM DECISION Judge Kenton D. Jones delivered the decision of the Court, in which Presiding Judge John C. Gemmill and Judge Donn Kessler joined. J O N E S, Judge: ¶1 Through this special action, Ernesto Moran challenges the trial court’s grant of the State’s motion to amend the indictment brought against him, in which the State sought to change the date of the charged offense of misconduct involving weapons from December 18, 2013, to February 4, 2014. Moran argues the amended indictment describes an offense separate and apart from that originally charged, and for which there has been no finding of probable cause by a grand jury, in violation of the Arizona Constitution and Arizona Rules of Criminal Procedure. For the following reasons, we accept jurisdiction and grant relief. FACTS AND PROCEDURAL HISTORY ¶2 On February 12, 2014, the State presented evidence to a grand jury regarding Moran’s alleged participation in a home invasion. In his presentation, the prosecutor told the grand jury the crimes “occurred in Phoenix and in Maricopa County all on the 18th day of December, 2013.” ¶3 The victim reported to police that, on December 18, 2013, she was confronted by three subjects as she exited the shower in her home. One subject grabbed her by the hair, threw her to the ground, pointed a pistol at her face, and demanded she tell him the location of her safe. A second subject discovered a shotgun that belonged to the victim’s boyfriend and also pointed it at her face and demanded the location of the safe. The three subjects then searched the house, collected shotgun shells and other accessories in a bag, and exited the home through the front door with the bag and shotgun. ¶4 The victim recognized one of the subjects, who was later identified as Moran, as an acquaintance of her cousin. With this knowledge, she was then able to locate a photograph on Facebook of Moran holding the shotgun taken from her residence. On February 4, 2014, Moran was detained outside his mother’s home while exiting a green SUV and transported to the police station for questioning regarding the home 2 MORAN v. HON. MILES/MONTGOMERY Decision of the Court invasion. During the interview, Moran admitted having a prior felony conviction. In the green SUV, police officers found the shotgun, shotgun shells, and other ammunition believed to have been taken from the victim’s home. ¶5 On February 12, 2014, a grand jury returned a True Bill, which indicted Moran on five offenses: burglary in the first degree (count 1); armed robbery (count 2); kidnapping (count 3); aggravated assault (count 4); and misconduct involving weapons (count 5). Each crime in the indictment was specifically alleged to have occurred on December 18, 2013. ¶6 On November 14, 2014, the trial court granted the State’s motion to dismiss counts 1 through 4. Thereafter, on February 17, 2015, the State moved to amend count 5, the sole remaining count, in order to “chang[e] the date of offense indicated . . . from the ‘18th day of December 2013’ to the ‘4th day of February 2014.’” The State argued (1) it simply sought “to correct a mistake in fact in the indictment as to the date that [Moran] possessed the shotgun,” (2) the change of date did not alter any of the elements of a charge, and (3) Moran would not be prejudiced by an amendment because the State’s discovery reflected the shotgun was recovered from Moran on February 4, 2014. Over Moran’s objection, the court granted the State’s motion on the ground that the incorrect date was a “mistake of fact.” This special action followed. JURISDICTION ¶7 This Court has discretion to accept special action jurisdiction, and will generally do so in cases that raise issues of statewide importance, issues of first impression, pure legal questions, or issues that are likely to arise again. Frimmel v. Sanders, 236 Ariz. 232, 238, ¶ 22, 338 P.3d 972, 978 (App. 2014) (citing Potter v. Vanderpool ex rel. Cnty. of Pinal, 225 Ariz. 495, 498, ¶ 6, 240 P.3d 1257, 1260 (App. 2010), and Luis A. v. Bayham-Lesselyong ex rel. Cnty. of Maricopa, 197 Ariz. 451, 452-53, ¶ 2, 4 P.3d 994, 995-96 (App. 2000)). Special action review is also appropriate where there is no plain, adequate or speedy remedy by appeal, and justice cannot be obtained by other means. Id. (citing Luis A., 197 Ariz. at 452-53, ¶ 2, 4 P.3d at 995-96); Ariz. R.P. Spec. Act. 1(a).1 1 Absent material revisions from the relevant date, we cite the current version of statutes and procedural rules. 3 MORAN v. HON. MILES/MONTGOMERY Decision of the Court ¶8 Generally, a defendant cannot challenge a grand jury’s finding of probable cause on direct appeal. State v. Moody, 208 Ariz. 424, 439-40, ¶ 31, 94 P.3d 1119, 1134-35 (2004) (citing State v. Murray, 184 Ariz. 9, 32, 906 P.2d 542, 565 (1995)). Additionally, the interpretation and application of the Arizona Rules of Criminal Procedure are questions of law appropriate for review by special action. Chartone, Inc. v. Bernini, 207 Ariz. 162, 165-66, ¶ 8, 83 P.3d 1103, 1106-07 (App. 2004). For these reasons, and because we conclude the trial court abused its discretion, we accept jurisdiction and grant relief. Ariz. R.P. Spec. Act. 3. DISCUSSION ¶9 We review a decision on a motion to amend an indictment for an abuse of discretion. State v. Johnson, 198 Ariz. 245, 247, ¶ 4, 8 P.3d 1159, 1161 (App. 2000) (citing State v. Sammons, 156 Ariz. 51, 54, 749 P.2d 1372, 1375 (1988)). The trial court abuses its discretion where it commits an error of law in the process of reaching a discretionary conclusion. Twin City Fire Ins. Co. v. Burke, 204 Ariz. 251, 254, ¶ 10, 63 P.3d 282, 285 (2003) (citing Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 456, 652 P.2d 507, 529 (1982)). ¶10 In Arizona, a felony action may be commenced by indictment or the filing of a complaint.2 Ariz. Const. art. 2, § 30; Ariz. R. Crim. P. 2.2. “An indictment is a written statement charging the commission of a public offense, presented to the court by a grand jury, endorsed a ‘true bill’ and signed by the foreman [of a grand jury].” Ariz. R. Crim. P. 13.1(a). It serves a dual purpose: to provide a defendant with notice of the charges against him, and also “to ensure that a neutral intermediary — a grand jury comprised of ordinary citizens — finds that probable cause exists before the State can bring charges.” McKaney v. Foreman ex rel. Cnty. of Maricopa, 209 Ariz. 268, 274-75, ¶ 31, 100 P.3d 18, 24-25 (2004) (Hurwitz, J., dissenting in part and concurring in part) (citing State v. Superior Court (Mauro), 139 Ariz. 422, 424, 678 P.2d 1386, 1388 (1984), and State v. Baumann, 125 Ariz. 404, 408, 610 P.2d 38, 42 (1980)); see also Ariz. Rev. Stat. § 21-413 (requiring indictment be based upon probable cause); Ariz. R. Crim. P. 12.1(d)(4) (same). The indictment therefore “limits the trial to the specific charge or charges” stated therein. Ariz. R. Crim. P. 13.5(b). 2 Because the State elected in the immediate case to proceed by indictment, we need not delve into the respective rights and obligations associated with the complaint process. 4 MORAN v. HON. MILES/MONTGOMERY Decision of the Court ¶11 Absent consent from the defendant, an indictment may be amended “only to correct mistakes of fact or remedy formal or technical defects.” Id.; see also State v. Kelly, 123 Ariz. 24, 26, 597 P.2d 177, 179 (1979) (“[A]n indictment may not be amended by the court to charge new and different matters of substance without the concurrence of the grand jury.”) (citing State v. Fogel, 16 Ariz. App. 246, 250, 492 P.2d 742, 746 (1972)). Thus, by its terms, Rule 13.5(b) applies only where there is a “mistake or defect in the indictment.” See State v. Freeney, 223 Ariz. 110, 113, ¶ 18, 219 P.3d 1039, 1042 (2009). ¶12 Amendment of the date of an offense has been found appropriate where the offense itself remains unchanged. For example, in State v. Bruce, amendment of the indictment, adjusting by one day the date the defendant knowingly received the earnings of prostitution, was appropriate to conform to the evidence presented at trial. 125 Ariz. 421, 423-24, 610 P.2d 55, 57-58 (1980); see also State v. Self, 135 Ariz. 374, 380, 661 P.2d 224, 230 (App. 1983) (permitting amendment to perjury charge to conform to evidence that date of hearing at which defendant perjured himself was September 11, 1979, rather than August 11, 1979, as alleged in indictment). An amendment to the date of a charged offense is impermissible, however, where the evidence reflects two separate events occurred. See State v. Mikels, 119 Ariz. 561, 563, 582 P.2d 651, 653 (App. 1978) (vacating defendant’s conviction based upon amendment to indictment changing location of sodomy offense from shower to bunk where evidence indicated they were two separate events occurring twelve or thirteen days apart). ¶13 Here, the State argues that the discrepancy between the dates was a technical defect, arising from the lack of a “clear transition” during the presentation to the grand jury between the events of December 18, 2013, and those of February 4, 2014, and that “it can readily be inferred that Count 5 was based on what law enforcement officers discovered the day [Moran] was arrested.” This argument is not supported by the record. The grand jurors were never told the date of Moran’s detention, or that any of the described events specifically occurred on February 4, 2014. Instead, the State asserted that all of the alleged crimes, including misconduct involving weapons, occurred “on the 18th day of December, 2013.” The evidence presented to the grand jury also supported a finding of probable cause that Moran possessed a weapon on December 18, 2013. Specifically, the grand jury heard that, on December 18, 2013, Moran, a prohibited possessor, was involved in a home invasion and robbery with two other persons, and was one of the assailants who pointed a firearm at the victim’s face. 5 MORAN v. HON. MILES/MONTGOMERY Decision of the Court ¶14 Although the statutory violation asserted in the amended indictment at count 5 is the same as that in the original indictment, it describes a wholly separate factual event, occurring almost two months after the one specified in the original indictment, upon facts never specifically provided to or considered by the grand jury in its probable cause determination, distinguishing this matter from State v. Bruce. “This is not a case where only one crime has been committed and there remains a question as to the date on which it occurred or where it occurred. In this case there were two separate and distinct acts of [misconduct involving weapons],” Mikels, 119 Ariz. at 563, 582 P.2d at 653, one occurring on December 18, 2013, and a separate event occurring on February 4, 2014. Thus, the record reflects “the indictment was not defective at all,” and Rule 13.5 does not apply. See Freeney, 223 Ariz. at 113, ¶¶ 19-20, 219 P.3d at 1042. ¶15 Rule 13.5(b) does not permit the State to avoid a defendant’s constitutional right that an indictment be based upon probable cause by amending an accurate indictment to pursue the same charge occurring on a different occasion. See State v. Sanders, 205 Ariz. 208, 212, 217, ¶¶ 9-10, 37, 68 P.3d 434, 438 443 (App. 2003) (reversing mid-trial amendment to indictment “to conform to the evidence” that a crime different than that originally charged was committed and noting “[a] defendant does not suffer a constitutionally diminished entitlement to notice from the state simply because a trial is being conducted on one charge and evidence of another offense has been admitted.”), overruled in part on other grounds by Freeney, 223 Ariz. at 113-114, ¶¶ 21-26, 219 P.3d at 1042-43; State v. Singh, 4 Ariz. App. 273, 278, 419 P.2d 403, 408 (1966) (disapproving amendment changing recipient of forged document on grounds that the substitution of a different recipient created a separate and distinct crime), superseded by statute on other grounds as stated in State v. Allen, 235 Ariz. 72, 75 n.2, ¶ 8, 326 P.3d 339, 342 n.2 (App. 2014). ¶16 Nor is there any authority to support the State’s suggestion that Moran impliedly consented to the amendment. To the contrary, the right of the accused to be advised of the charges against him with an ample opportunity to prepare an adequate defense is a fundamental element of due process. State v. Branch, 108 Ariz. 351, 354-55, 498 P.2d 218, 221-22 (1972). On this premise, this Court has, on at least one occasion, held that a defendant himself must give actual consent to the amendment of an indictment to ensure due process is satisfied. State v. Sanders, 115 Ariz. 289, 293, 564 P.2d 1256, 1260 (App. 1977) (noting in light of fundamental due process concerns “[i]t is therefore not too much to ask that the defendant be apprised of what is occurring and that his consent be secured”). Additionally, the record does not support an implication of consent where 6 MORAN v. HON. MILES/MONTGOMERY Decision of the Court Moran objected to the amendment once the State eventually sought to try him on a set of facts different from the original indictment. ¶17 The State nonetheless argues that Moran was not prejudiced by the amendment because he knew or should have known of the State’s intent to proceed on the charge of weapons misconduct in relation to the February 4, 2014 events, as discovery included reference to the seizure of the weapons that followed Moran’s arrest. See Freeney, 223 Ariz. at 115, ¶ 28, 219 P.3d at 1044 (affirming conviction where violation of Rule 13.5 was harmless beyond a reasonable doubt). This Court has previously rejected the notion that the State may elect to proceed against a defendant on a separate, subsequent act at trial and amend the indictment to conform to its strategy without notice to that defendant. Mikels, 119 Ariz. at 563, 582 P.2d at 653. There is no evidence the State intended the information regarding the recovery of the shotgun and other weapons in the vehicle Moran exited prior to his detention to be anything more than additional evidence tending to tie Moran to the December 18, 2013 incident. See id. (rejecting suggestion that defendant consented to amendment based on presentation of evidence that may have supported the amended charge, but was clearly admitted for separate purpose). And, nothing within the record prior to the proposed amendment indicates the State intended to pursue a second count of misconduct involving weapons. The mere fact of the disclosure of the seizure of the shotgun is not sufficient to put Moran on notice that he would be tried for a wholly different crime, occurring on a different day than any other event with which he was charged. ¶18 We are likewise unconvinced by the State’s contention that Moran “foreclosed any argument” that he has been prejudiced by the amendment because he stated he did not believe the State could prove the crime of misconduct involving weapons occurred as charged, on December 18, 2013. While such an assertion by a defendant may prompt the State to reassess its likelihood of success in prosecuting the charge specified in the original indictment, it does not provide license to assert, through an indictment amended by the trial court, that the grand jury found probable cause the defendant committed a crime based upon a set of circumstances it was never asked to consider. No grand jury has decided Moran should stand trial for a weapons offense that allegedly occurred months after the home invasion. Moran is most certainly prejudiced where “the variation [sought by an amendment] destroyed the defendant’s substantial right to be tried only on charges presented in an indictment returned by a grand jury.” Mikels, 119 Ariz. at 563, 582 P.2d at 653 (citing Stirone v. United States, 361 U.S. 212, 215-19 (1960)). 7 MORAN v. HON. MILES/MONTGOMERY Decision of the Court ¶19 To permit the State to amend an indictment in the manner presented here would impermissibly compromise the imprimatur of the grand jury. Such a result would be contrary to the essential purpose of the grand jury, which is to stand as a neutral intermediary “between the accuser and the accused.” Maretick v. Jarrett, 204 Ariz. 194, 197, ¶ 8, 62 P.3d 120, 123 (2003) (quoting Wood v. Georgia, 370 U.S. 375, 390 (1962)) (internal quotations omitted); see also Mikels, 119 Ariz. at 563, 582 P.2d 653 (describing “very purpose” of requiring indictment by a grand jury is “to eliminate [a defendant’s] jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge”) (citing Stirone, 361 U.S. at 218); State v. McAllister, 875 A.2d 866, 877 (N.J. 2005) (“‘[T]he grand jury remains a constitutional bulwark against hasty and ill- founded prosecutions and continues to lend legitimacy to our system of justice by infusing it with a democratic ethos.’”) (quoting State v. Fortin, 843 A.2d 974, 1030-31 (N.J. 2004)). Surrender of that neutrality to the State would open the door to the very dangers of excessive and unreasonable official interference with personal liberty our Constitution protects against. CONCLUSION ¶20 On this record, we are not persuaded that Moran’s basic due process rights to a finding of probable cause and notice as to the charges against him were satisfied through the wholesale amendment of count five of the original indictment to include events occurring on February 4, 2014, without the matter having been returned to the grand jury. The amendment to the indictment was not authorized under Rule 13.5(b), and the trial court abused its discretion in granting the State’s motion. As a result, we accept jurisdiction, vacate the order amending the indictment, vacate the stay entered pending resolution of this special action, and remand to the trial court for further proceedings consistent with this decision. :ama 8

01-03-2023

04-07-2015

https://www.courtlistener.com/api/rest/v3/opinions/3051916/

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT TRAVELERS CASUALTY AND SURETY  No. 04-15605 COMPANY, D.C. No. Appellant, CV-03-03499-PJH v.  Northern District of PACIFIC GAS AND ELECTRIC California, COMPANY, San Francisco Appellee.  ORDER On Remand From The United States Supreme Court Filed May 8, 2008 Before: Stephen Reinhardt and Sidney R. Thomas, Circuit Judges, and Jane A. Restani,* Judge. ORDER This case is hereby resubmitted. Pursuant to the judgment of the United States Supreme Court issued on March 20, 2007 in Travelers Casualty & Surety Co. of America v. Pacific Gas & Electric Co., ___ U.S. ___, 127 S.Ct. 1199, 167 L.Ed.2d 178 (2007), we vacate our disposition at 167 Fed.Appx. 593 (9th Cir. 2006), vacate the district court’s decision as well as the bankruptcy court’s decision, and remand to the district court with instructions to remand to the bankruptcy court for further proceedings con- sistent with the opinion of the Supreme Court. *The Honorable Jane A. Restani, Chief Judge, United States Court of International Trade, sitting by designation. 5085 5086 TRAVELERS CASUALTY AND SURETY v. PG&E We do not reach any issue presented by the parties, leaving those questions for the consideration of the bankruptcy court in the first instance. PRINTED FOR ADMINISTRATIVE OFFICE—U.S. COURTS BY THOMSON REUTERS/WEST—SAN FRANCISCO The summary, which does not constitute a part of the opinion of the court, is copyrighted © 2008 Thomson Reuters/West.

01-03-2023

10-13-2015

https://www.courtlistener.com/api/rest/v3/opinions/3062374/

IN THE COURT OF APPEALS OF IOWA No. 14-1165 Filed October 14, 2015 MARY MORRIS, Applicant-Appellee, vs. STATE OF IOWA, Respondent-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom, Judge. The State appeals from a district court ruling awarding Mary Morris damages. AFFIRMED. Thomas J. Miller, Attorney General, William A. Hill, Special Litigation Division, Assistant Attorney General, for appellant State. Ward A. Rouse of Rouse Law PC, West Des Moines, and Van M. Plumb, Des Moines, for appellee. Heard by Vaitheswaran, P.J., and Potterfield and McDonald, JJ. 2 VAITHESWARAN, Presiding Judge. Bobby Morris was serving a life sentence at the Iowa State Penitentiary when he attempted to murder his wife Mary Morris during a prison visit. Mary sued the State for negligently operating the visiting room. Following a bench trial, the district court awarded her damages of $174,000. On appeal, the State argues “the trial court erred in determining [it] negligently supervised the visiting room at the Iowa State Penitentiary.” The State raises a three-pronged attack on the trial court decision: (1) it was entitled to “discretionary function” immunity under Iowa Code section 669.14(1) (2009); (2) the negligence claim was “barred by the public duty doctrine; and (3) “the claim should [have been] denied as Mary did not anticipate or believe that she would be assaulted prior to the visit.” (1) Discretionary Function Immunity The State is immune from tort liability for “[a]ny claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a state agency or an employee of the state, whether or not the discretion be abused.” Iowa Code § 669.14(1). Assuming without deciding that the discretionary-function question was preserved for our review,1 we are persuaded it is inapplicable. In Walker v. State, 801 N.W.2d 548, 554-55 (Iowa 2011), the Iowa Supreme Court concluded the exception did not insulate the State from suit by an inmate who was assaulted by another inmate. The court reasoned, “the 1 In its ruling on the State’s judgment notwithstanding the verdict, the district court stated it “did not reach the discretionary function issue.” 3 decisions by prison staff in the supervision of the inmates did not involve the evaluation of broad public policy factors.” Walker, 801 N.W.2d at 561. The decisions made, the court said, “were ad hoc decisions” and there was “nothing in the record to suggest that in performing their duties, the correctional staff could have weighed competing ideals in order to determine how to supervise the inmates.” Id. at 563. The same is true here. At the time of the assault, one of the officers was providing inmates “dress out” clothing to wear during their visits and the other was assigned to observe the video monitors from within an enclosed area adjacent to the visiting room. These duties implicated no broad public policy factors. See Doe v. Cedar Rapids Cmty. Sch. Dist., 652 N.W.2d 439, 445 (Iowa 2002) (“Only decisions grounded in economic, political, or social policy considerations are exempt from liability.”). (2) Public Duty Doctrine The State claims “if a duty is owed to the public generally, there is no liability to an individual member of that group.” See Kolbe v. State, 625 N.W.2d 721, 729 (Iowa 2001) (ruling State owed no duty to plaintiff bicyclist when it issued a driver’s license to third party whose vehicle struck plaintiff). This is known as the public duty doctrine. In Raas v. State, 729 N.W.2d 444, 449-50 (Iowa 2007), the court recognized the public duty doctrine was still viable following the enactment of the State Tort Claims Act. However, the court declined to apply it under circumstances virtually identical to this case. There, a visitor in the parking lot of a prison facility was attacked by an escaped inmate. Raas, 729 N.W.2d at 448- 4 49. Citing precedent finding a special relationship between a State hospital patient and the treating State physician, the court reaffirmed a State duty to protect “reasonably foreseeable” victims from injury inflicted by escaped inmates. Id. at 449-50. As in Raas, Mary was not a member of the public at large; she was a prison visitor. This status afforded her a special relationship with the State, triggering a State duty to control the prisoner’s conduct. The duty owed to her was arguably greater than the duty recognized in Raas because she was inside the walls of the penitentiary in a designated visiting area. The public duty doctrine was in applicable. (3) Foreseeability The State asserts Mary Morris failed to foresee any danger from her visit and, accordingly, prison officials could not have “anticipated such violence or ha[ve] reason to suspect that an assault was likely to take place.” As the district court stated, this argument “miss[es] the mark.” Our precedent does not require foreseeability by the victim but foreseeability by the State. See Raas, 729 N.W.2d at 450 (“[T]he State’s duty to protect victims from injury inflicted by escaped patients or prisoners extends only to those persons who are reasonably foreseeable as victims.”). “The assessment of the foreseeability of a risk is allocated . . . to the fact finder . . . .” Thompson v. Kaczinski, 774 N.W.2d 829, 835 (Iowa 2009); see also Raas, 729 N.W.2d at 450 (finding sufficient facts alleged to withstand motion to dismiss). The district court as fact finder made detailed findings, as follows: 5 [T]he State, through the prison guards employed by the Department of Corrections, was negligent in supervising the visiting room at the ISP . . . . This is the State’s highest security institution, with the most high-risk offenders. Inmate Bobby Morris was allowed to stand and move about the visiting room for approximately three and a half minutes prior to the assault. This violates visitation policy. . . . Bobby Morris also crossed the yellow line into the restricted area near the visitors’ bathroom. He was in violation of the rules when he did this. The guards admitted he should not have done this. This behavior was unobserved by . . . the guard on duty at that time. Finally, a loud assault occurred in the visitors’ bathroom. This lasted five to seven minutes. There was screaming and banging. Neither guard heard this commotion. The surveillance videos show a number of people in the visiting room looking toward the restroom area in reaction to the screams. [A woman] got up and tried to get the attention of a guard. She knocked on the windows of the guard stations. No guard responded. [One officer] was doing dress-out in the dress-out room. [The other officer] was supposed to be observing the visiting room at this time. He could not explain why he did not observe these events—except that he must have been distracted. Even if he could not hear the screams from inside his “bubble,” he should have noticed the reaction of the inmates and visitors in the visiting room, and [the woman’s] attempts to get a guard’s attention. The length of time that no one was observing the visiting room—before the attack and during the attack—shows that the guard on duty failed to exercise ordinary care. The State does not challenge the evidence underlying these fact findings. Under our existing law, the findings support the court’s determination that the State failed to exercise ordinary care. We discern no error in the district court’s conclusions. The judgment in favor of Mary Morris is affirmed. AFFIRMED.

01-03-2023

10-14-2015

https://www.courtlistener.com/api/rest/v3/opinions/1028635/

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-8151 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOHN EDWARD JONES, JR., a/k/a Liddy, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. William M. Nickerson, Senior District Judge. (1:98-cr-00048-WMN-1) Submitted: April 23, 2009 Decided: May 1, 2009 Before MICHAEL, GREGORY, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. John Edward Jones, Jr., Appellant Pro Se. Andrea L. Smith, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: John Edward Jones, Jr., appeals the district court’s order denying his motion to amend his criminal judgment. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Jones, No. 1:98-cr-00048-WMN-1 (D. Md. Aug. 14, 2008). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 2

01-03-2023

07-05-2013

https://www.courtlistener.com/api/rest/v3/opinions/1473708/

173 F.2d 599 (1949) UNITED STATES ex rel. KNAUFF v. WATKINS. No. 187, Docket 21254. United States Court of Appeals Second Circuit. March 11, 1949. Writ of Certiorari Granted May 2, 1949. *600 John F. X. McGohey, U. S. Atty., and William J. Sexton, Asst. U. S. Atty., both of New York City, for the United States. Louis Steinberg, District Adjudications Officer, Immigration and Naturalization *601 Service, U. S. Dept. of Justice, of New York City (Alvin Lieberman, Atty., Immigration & Naturalization Service, U. S. Dept. of Justice, of New York City, of counsel), for W. Frank Watkins. Gunther Jacobson and John Windsor, both of New York City, for relator. Before AUGUSTUS N. HAND, CHASE and FRANK, Circuit Judges. Writ of Certiorari Granted May 2, 1949. See 69 S. Ct. 941. CHASE, Circuit Judge. The question which must be answered on this appeal is whether the wife of an American soldier who is a war bride within the purview of Public Law 271 of 1945, 59 Stat. 659, 8 U.S.C.A. § 232, may be denied admission to the United States without a hearing before a Board of Special Inquiry. The relator-appellant is the lawful wife of Kurt W. Knauff who is a naturalized American citizen now employed in a civilian capacity by the American Army of Occupation in Germany. Mr. Knauff served as a soldier in the armed forces of the United States from November 21, 1942 until he was honorably discharged on January 17, 1946. He married the appellant in Germany on February 28, 1948 after having obtained consent so to do from the Office of the Advocate General of the United States Army at Frankfort-on-the-Main. The appellant, born on January 1, 1915, is a native of Germany who is now stateless and who served in England in the Royal Air Force as a flight sergeant from January 1, 1943 to May 30, 1946 and later was employed in Germany in the Civil Censorship Division and the Signal Division of the United States Army. Her official record in so far as appears is excellent. She obtained temporary leave from her employment in Germany in June 1948 to enter the United States to apply for naturalization as an American citizen under the provisions of Sec. 312 of the Nationality Act of 1940, 8 U.S.C.A. § 712, and arrived at the Port of New York on an American Army transport on August 14, 1948. After examination she was temporarily excluded by an immigration inspector. Thereafter she was denied further hearing and the exclusion order was made permanent by action of the Attorney General pursuant to the provisions of Sec. 175.57(a) of Title 8 of the Code of Federal Regulations. She has since been detained at Ellis Island for return to Germany. The writ was issued on the application of her husband who came here for that purpose and who has since returned to Germany. It was dismissed after hearing and upon a rehearing the order of dismissal was left unchanged. Sec. 223 of Title 22 U.S.C.A., 40 Stat. 559, as amended, 55 Stat. 252, provides that: "When the United States is at war or during the existence of the national emergency proclaimed by the President on May 27, 1941 [No. 2487, 50 U.S.C.A.Appendix, note preceding § 1], or as to aliens whenever there exists a state of war between, or among, two or more states, and the President shall find that the interests of the United States require that restrictions and prohibitions in addition to those provided otherwise than by sections 223-226(b) of this title be imposed upon the departure of persons from and their entry into the United States, and shall make public proclamation thereof, it shall, until otherwise ordered by the President or Congress, be unlawful — "(a) For any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President shall prescribe; * * *." On November 14, 1941 the President did, by Proclamation No. 2523, impose restrictions and prohibitions in addition to those otherwise provided by law upon the departure of persons from and their entry into the United States which were to remain in force and effect until he otherwise ordered. This proclamation, insofar as now pertinent, provided that, "No alien shall be permitted to enter the United States if it appears to the satisfaction of the Secretary of State that such entry would be prejudicial to the interests of the United States as provided in the rules and regulations hereinbefore authorized to be prescribed by the Secretary of State, with the concurrence of the Attorney General." Pursuant to the authority thus given them the officials just named did prescribe *602 the rules and regulations which apply to the entry of the appellant and which are to be found in Title 8 of the Code of Federal Regulations Secs. 173.53 and 175.57. In Sec. 175.53 aliens who are excludable are classified in some detail and in Sec. 175.57 it is provided that, "(a) Any alien, even though in possession of a permit to enter, or exempted under §§ 175.41 to 175.63, inclusive, from obtaining a permit to enter, may be excluded temporarily if at the time he applies for admission at a port of entry it appears that he is or may be excludable under one of the categories set forth in § 173.53. The official excluding the alien shall immediately report the facts to the head of his department, who will communicate such report to the Secretary of State. Any alien so temporarily excluded by an official of the Department of Justice shall not be admitted and shall be excluded and deported unless the Attorney General, after consultation with the Secretary of State, is satisfied that the admission of the alien would not be prejudicial to the interests of the United States. Any alien so temporarily excluded by any other official shall not be admitted and shall be excluded and deported unless the Secretary of State is satisfied that the admission of the alien would not be prejudicial to the interests of the United States. (b) In the case of an alien temporarily excluded by an official of the Department of Justice on the ground that he is, or may be excludable under one or more of the categories set forth in § 175.53, no hearing by a board of special inquiry shall be held until after the case is reported to the Attorney General and such a hearing is directed by the Attorney General or his representative. In any special case the alien may be denied a hearing before a board of special inquiry and an appeal from the decision of that board if the Attorney General determines that he is excludable under one of the categories set forth in § 173.53 on the basis of information of a confidential nature, the disclosure of which would be prejudicial to the public interest." It was as a result of following the procedure thus provided and the exercise of the authority thus given to the Attorney General that the appellant was excluded and ordered deported to Germany. Passing for the moment any rights she or her husband may have under the socalled War Brides Act, supra, we hold that the action taken in respect to her was lawful. Sec. 223 of Title 22 U.S.C.A. together with the President's Proclamation pursuant thereto and the rules and regulations promulgated thereunder set up a basis, and the applicable procedure, for the exclusion of aliens in addition to that found in Secs. 136 and 137 of Title 8 U.S.C.A. and the procedure prescribed in Sec. 152 of that Title. It is not claimed, and the claim would clearly be untenable if made, that either Sec. 136 or 137 applies and neither does Sec. 152, either by statute or by the President's Proclamation, where, as here, the exclusion is "on the basis of information of a confidential nature, the disclosure of which would be prejudicial to the public interest." Thus it was provided that, as was done in this instance, an alien who sought entry to the United States could be temporarily excluded by any official of the Department of Justice and could not be admitted but must be excluded permanently and deported unless after the temporary action had been reported to the Secretary of State the Attorney General was satisfied that the admission of the alien would not be prejudicial to the interests of the United States. And the Attorney General could reach the conclusion that he was satisfied that the alien should be admitted only after he had consulted the Secretary of State. There is no requirement, however, that the Attorney General need consult the Secretary of State in the event that he is not satisfied that the alien may be admitted without prejudice to the public interest. In this instance it does not appear whether the Attorney General did consult the Secretary of State and though the appellant raises that point it is of no consequence for the reasons just stated. The appellant's other contentions to the effect that the basis of her exclusion and the procedure followed were unlawful are that Sec. 223 of Title 22 U.S. *603 C.A. is too vague in its attempted delegation of legislative power; that the regulations do not conform to the President's Proclamation and that the regulations are themselves too vague. We find no merit in any of these objections. The power of Congress to deny admission to aliens is absolute. Fok Young Yo v. United States, 185 U.S. 296, 22 S. Ct. 686, 46 L. Ed. 917; Kaoru Yamataya v Fisher, 189 U.S. 86, 23 S. Ct. 611, 47 L. Ed. 721. Consequently there need be no such limitations upon the terms of delegation of that power as were held to be a constitutional prerequisite to the delegation of legislative power in Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S. Ct. 837, 79 L. Ed. 1570, 97 A.L.R. 947. Furthermore, these regulations were within the wide sweep of delegation to executive discretion under the war power, as to which see Hirabayashi v. United States, 320 U.S. 81, 63 S. Ct. 1375, 87 L. Ed. 1774, and we are still at war with Germany. Ludecke v. Watkins, 335 U.S. 160, 68 S. Ct. 1429. The system which Congress set up and which has been followed in this instance comprises the promulgation for the guidance of subordinate officials of a series of classifications of excludable aliens to supplement the then existing laws. If subordinate officials are in doubt as to the admissibility of any alien under the supplemental regulations, such officials have the power to exclude temporarily and the duty to report that action for the attention of officials of cabinet rank who may make the exclusion permanent without a formal hearing, or any hearing before a board of special inquiry, provided the higher official charged with duty to decide does decide on the basis of confidential information that the alien is not admissible under the applicable law and regulations. The obvious purpose was to enable this country to be protected from the entry of aliens who were within the excludable categories without having to make public the proof of that status when in the judgment of responsible officials the disclosure of such information or the source of it would be detrimental to the public safety. Non-resident aliens have no interest which may not lawfully be dealt with in that way. United States ex rel. Medeiros v. Watkins, 2 Cir., 166 F.2d 897; United States ex rel. Schlueter v. Watkins, 2 Cir., 158 F.2d 853. That being so, the appellant has no grievance which can be remedied because some of the classifications in Sec. 175.53 may be so broadly stated as to be, as she says, vague. Some are very definite and explicit, but since discretionary action of the Attorney General was based on confidential information neither the appellant, nor we, can know the excludable class into which that put her. A reading of Secs. 175.53 and 175.57 in the light of the authorizing statute and Presidential Proclamation leaves no doubt, however, that, insofar as they are explicit, they fall within the scope of the delegated power to promulgate rules and regulations which are reasonably drawn to accomplish the evident purpose of Congress. Regulations having been duly adopted, the burden is on one who questions them to show their invalidity. Montana Eastern Limited v. United States, 9 Cir., 95 F.2d 897. And this burden can be carried only by showing as a minimum that the regulations are inconsistent with the underlying statute or are unreasonable or inappropriate. United States v. Morehead, 243 U.S. 607, 37 S. Ct. 458, 61 L. Ed. 926; Boske v. Comingore, 177 U.S. 459, 20 S. Ct. 701, 44 L. Ed. 846. It has not been discharged by this appellant. Nor do the reasons for exclusion stated by the Attorney General indicate affirmatively an arbitrary action on his part or an unreasonable basis for determining that appellant's entry would be prejudicial to the interests of the United States. The appellant, having failed to show affirmatively unfairness either in the regulations or in the action of the Attorney General, cannot complain merely of a lack of procedural due process. United States ex rel. Schlueter v. Watkins, supra. Yet that is not enough to justify the order below dismissing the writ. The appellant insists that, even though the regulations are valid, her entry is not barred by them because she is entitled to enter as a matter of right under the so-called War *604 Brides Statute, supra. That she is a person within the scope of that statute has been established and whether she is right or wrong in her demand for entry depends upon the proper construction of Sec. 1 of that act, 59 Stat. 659, 8 U.S.C.A. § 232. It reads so far as now pertinent as follows: "* * * notwithstanding the documentary requirements of any of the immigration laws or regulations, Executive orders, or Presidential proclamations issued thereunder, alien spouses * * * of United States citizens serving in, or having an honorable discharge certificate from the armed forces of the United States during the Second World War shall, if otherwise admissible under the immigration laws and if application for admission is made within three years of December 28, 1945, be admitted to the United States: * * *." Sec. 5, 8 U.S.C.A. § 236, of the act provides that, "For the purpose of this Act, the Second World War shall be deemed to have commenced on December 7, 1941, and to have ceased upon the termination of hostilities as declared by the President or by a joint resolution of Congress." On December 31, 1946, the President by Proclamation No. 2714, 50 U.S.C.A.Appendix, § 601 note, while recognizing that a state of war still existed, did proclaim the cessation of hostilities of World War II effective on 12 o'clock noon on that day. From this the argument of the appellant is in substance (1) that 22 U.S.C.A. § 223 is not an immigration law and consequently neither it nor the regulations above discussed limit the scope of the War Brides Act; and (2) that as World War II ceased for the purposes of the War Brides Act on December 31, 1946 the powers delegated by 22 U.S.C.A. § 223 were, in so far as the War Brides Statute is concerned, terminated on that date. We cannot agree with either contention. Though Sec. 223 of Title 22 may properly enough be said not to be one of the statutes embraced within the concept of immigration laws in times of ordinary tranquility and is, as we have seen, a statute to supplement them as a war measure it nevertheless does deal with matters affecting immigration into this country and emigration therefrom and is, while it is effective, one of the immigration laws subject to which a war bride is made admissible under Sec. 232 of Title 8 U.S.C.A. See Bonham v. Bouiss, 9 Cir., 161 F.2d 678. It was in effect when this appellant presented herself at the Port of New York for admission and still is. By its terms it was made effective not only when the United States is at war but also during the existence of the national emergency proclaimed by the president on May 27, 1941, No. 2487, 50 U.S.C.A.Appendix, note preceding § 1, and as to aliens when a third named condition was met. We need not rely upon more than the continued existence of the national emergency above mentioned. That alone makes the regulations under which the appellant was excluded still effective as to her though we do not mean to imply that World War II does not still exist for that purpose also. We merely find no occasion for decision as to that. Finally the appellant argues that she is in this country while being detained at Ellis Island and is entitled to apply for naturalization under the provisions of Section 312 of the Nationality Act of 1940, 8 U.S.C.A. § 712. Without intimating that we agree that her presence on Ellis Island while being held there under an order of exclusion is enough to put her "in the United States" within the meaning of the above statute, we find it a sufficient answer to this contention to point out that whatever rights she may have under the naturalization laws do not exempt her from the scope of laws pertaining to the admission of aliens. Affirmed.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2892523/

NO. 07-05-0118-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D APRIL 7, 2005 _____________________________ Ex parte ROGER D. PFEIL, Appellant _________________________________ FROM THE 154TH DISTRICT COURT OF LAMB COUNTY; NO. 16,508; HON. FELIX KLEIN, PRESIDING _______________________________ Order of Dismissal _______________________________ Before QUINN, REAVIS, and CAMPBELL, JJ. Roger D. Pfiel appeals from an order dismissing his application for writ of habeas corpus. The writ was sought to obtain release from the purported restraint of Bruce Peel, mayor of Littlefield, Texas. Peel had moved for dismissal, contending that the trial court lacked jurisdiction over the proceedings. The trial court granted the motion. We now dismiss the appeal for lack of jurisdiction. One may not appeal from an order denying a writ of habeas corpus unless the order arose after a hearing on the merits and the trial court denied the application on the merits. Ex parte Hargett, 819 S.W.2d 866, 868 (Tex. Crim. App. 1991). Next, granting a motion to dismiss due to the absence of jurisdiction is not a ruling on the merits. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); see also City of Lubbock v. Rule, 68 S.W.3d 853, 857 (Tex. App.-Amarillo 2002, no pet.). So because the trial court dismissed the appeal due to the lack of jurisdiction, we ourselves have no jurisdiction over the appeal. Accordingly, the appeal is dismissed for want of jurisdiction. Brian Quinn Justice Do not publish. tial summary judgment, these and other issues of\ reimbursement and offset were submitted for trial.\ ' var WPFootnote8 = ' Following an alleged default in payment, Systems & Services Technology, Inc.,\ handled repossession for the lienholder of a 2000 Ford pickup. Although titled in Brent’s\ name, the parties agreed in the February 2003 contract that the pickup was a partnership\ asset. Field agreed in the contract to make the payments on the pickup, or cause the\ partnership to do so.\ ' var WPFootnote9 = '  In relevant part, paragraph 3 provided: \                                 In the event the farm is sold, and [Field] is unable to sell the tractor and other\ farm equipment to the Purchaser of the farm, [Field] will also be allowed, as\ an offset against the $400,000.00 reimbursement described in Paragraph 5,\ an amount equal to one-half (½) of any payments that are required to be\ made to Case Credit Corporation in order to obtain a release of the Case\ leases for the tractor and other farm machinery.\ ' var WPFootnote10 = ' In the related security agreement, Brent and her husband agreed that their\ personal liability for the Maltese Cross claim was joint and several, again without\ expressed reference to a claim against Field for reimbursement. \ ' var WPFootnote11 = ' On the sale of the ranch, Field paid Maltese Cross, pursuant to the assignment,\ $182,498.72.\ ' var WPFootnote12 = ' The marital relationship alone does not give rise to an agency relationship\ between spouses. Tex. Fam. Code Ann. § 3.201(c) (Vernon 2006).\ ' var WPFootnote13 = ' This amount is inclusive of and not in addition to the $55,634.88 awarded in the\ trial court’s judgment.\ ' var WPFootnote14 = ' See Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986); Hansen v. Acad.\ Corp., 961 S.W.2d 329, 331 (Tex.App.–Houston [1st Dist.] 1997, pet. denied); cf. In re\ Marriage of Stein, 190 S.W.3d 73, 75 (Tex.App.–Amarillo 2005, no pet.) (when an\ appellate court remands a case and limits a subsequent trial to a particular issue, the trial\ court is restricted to a determination of that particular issue).\ ' function WPShow( WPid, WPtext ) { if( bInlineFloats ) eval( "document.all." + WPid + ".style.visibility = 'visible'" ); else { if( floatwnd == 0 || floatwnd.closed ) floatwnd = window.open( "", "comment", "toolbars=0,width=600,height=200,resizable=1,scrollbars=1,dependent=1" ); floatwnd.document.open( "text/html", "replace" ); floatwnd.document.write( "\r\n" ); floatwnd.document.write( "\r\n" ); floatwnd.document.write( "\r\n" ); floatwnd.document.write( WPtext ); floatwnd.document.write( 'Close'); floatwnd.document.write( "" ); floatwnd.document.close(); floatwnd.focus(); } } function WPHide( WPid ) { if( bInlineFloats ) eval( "document.all." + WPid + ".style.visibility = 'hidden'" ); } NO. 07-08-0065-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B DECEMBER 30, 2008 ______________________________ ELIZABETH C. BRENT, APPELLANT v. MARTHA C. FIELD, J & J CATTLE FAMILY LIMITED PARTNERSHIP, AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, AND THOMAS & WATSON TRUCKING, INC., APPELLEES _________________________________ FROM THE 69TH DISTRICT COURT OF HARTLEY COUNTY; NO. 4300 H; HON. RONALD E. ENNS, PRESIDING _______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. OPINION           Presenting eleven issues, Elizabeth C. Brent appeals from the trial court’s judgment in her breach of contract and declaratory judgment action against her sister Martha C. Field, J & J Family Limited Partnership, Thomas & Watson Trucking, Inc., and American Express Travel Related Services Company, Inc. Brent’s claims arise from a contract by which she sold her interest in family business entities to Field.           We will reverse and render in part, vacate in part, and otherwise affirm the judgment. We will order a limited remand for calculation of prejudgment interest and for an award of reasonable attorney’s fees. Background           Brent and Field inherited the Houghton Ranch in Hartley County from their mother. In 1995, Brent and Field conveyed the property to J & J Cattle Family Limited Partnership, a limited partnership they created. Through the limited partnership and other entities Brent and Field carried on the ranching operation and other business. Brent’s husband R. P. Brent IV and Field’s husband Steve Field also were active in the partnership’s business.           In the midst of strained economic circumstances, in early 2003 Brent and Field reached an agreement through which Brent sold her interest in the partnership to Field. They memorialized their bargain in a contract of February 11, 2003. Paragraphs 2 and 5 of the contract read:   2. [Field] shall become a substituted general and limited partner of the Partnership in place of [Brent] as of the date of the transfer of the partnership Interest, and [Field] shall also become the President and sole director of JJ ROUNDUP, INCORPORATED, a Texas corporation. [Field] agrees to protect and indemnify [Brent] and [Brent’s husband] from liability from any and all obligations of the Partnership.[ ] This Agreement shall be binding on and inure to the benefit of the parties and their respective heirs, executors, administrators, assigns and legal representatives.   ***   5. [Brent] will pay the partnership obligation of approximately $800,000.00 which is owed to PNB FINANCIAL BANK out of the sale proceeds. Out of the initial advance, at least $50,000 will be paid to PNB FINANCIAL BANK. [Field] agrees to reimburse [Brent] $400,000.00 LESS a $50,000.00 offset which represents a capital contribution that was not made by [Brent] and LESS any other amounts of Partnership funds expended by [Brent] as general partner of the Partnership for non-partnership purposes which may have occurred during the two-year period immediately preceding the date of this instrument. For the same time period, any funds expended or used by [Field] or STEVE FIELD for non-partnership purposes shall be credited against the offsets. Any reimbursement will be paid to [Brent] on the earlier of the date on which the Partnership sells its entire interest in the Ranch, or February 10, 2006.     (Capitalization in original).           The partnership at times ran its own cattle on the ranch, and from time to time cattle belonging to Brent’s husband, and Maltese Cross Cattle Company, Ltd. also were pastured there. Brent’s husband was primarily responsible for care of cattle on the ranch. In early 2003, Maltese Cross demanded compensation from the partnership for missing cattle and overpayment of fees under its pasturage agreement with the partnership. A March 11, 2003, agreement entitled “Assignment Agreement and Release” (which we will refer to as the Maltese Cross assignment) fixed the amount of the Maltese Cross obligation at $281,529.           In pertinent part, the Maltese Cross assignment provided: 1. As the result of a series of transactions between Maltese Cross and one or more of the entities described above and collectively referred to as JJ Cattle[ ], JJ Cattle has become indebted to Maltese Cross. All disputes regarding the amount of this debt have been resolved as a result of negotiations giving rise to this Agreement. It has been agreed that the amount of the debt in question is $281,529.00.             *** 3. Reference is made below to that certain “Agreement For Sale Of Limited Partnership Interest,” dated February 11, 2003 between Elizabeth C. Brent, as “Seller” and Martha C. Field, as “Purchaser” (the “Sale Agreement”). Pursuant to the Sale Agreement, Elizabeth C. Brent has agreed to sell to Martha C. Field all her interest in JJ Cattle.             ***   4. Pursuant to the terms of the Sale Agreement, Elizabeth C. Brent will receive an initial cash payment, in the amount provided in the Sale Agreement, on or before March 10, 2003 (the “Initial Payment”). Further, pursuant to the Sale Agreement, Elizabeth C. Brent has the right to obtain a reimbursement payment, as described in paragraph 5 of the Sale Agreement on or before February 10, 2006 (the “Reimbursement Payment”).   5. [Brent and her husband] by execution of this agreement, do not admit any personal liability for the indebtedness to Maltese Cross described in paragraph 1 above. [Brent and her husband] enter into the terms of this agreement for the purpose of compromise and to buy peace with Maltese Cross.   TERMS OF AGREEMENT   *** 3. As collateral and security for payment of the Settlement Note,[ ] [Brent] does hereby assign to Maltese Cross her interest and right to receive all amounts under the Reimbursement Payment (“the Final Assigned Payment”) not to exceed the then outstanding obligation under the Settlement Note....   ***   8. The Reimbursement Payment shall be made by [Field], when due under the Sale Agreement, to the trust account of the law firm of Gibson, Ochsner & Adkins, LLP. Upon receipt of such payment, the attorneys shall determine the amount payable to Maltese Cross under the Settlement Note and make immediate payment thereof to Maltese Cross. Any remaining funds shall be remitted to [Brent],....   9. Notwithstanding any contingencies which may be set forth in paragraph 5 of the Sale Agreement, [Field] does hereby guarantee that the amount payable as the Final Assigned Payment shall not be less than $170,000.               While the ranch was marketed for sale, a dispute arose between Field and Brent. It centered chiefly on amounts due Brent on sale of the ranch through the reimbursement clause of paragraph 5 of their February 2003 contract. As a result, Brent filed suit against Field and J & J Family Limited Partnership, Thomas & Watson Trucking, Inc., and American Express Travel Related Services Company, Inc. Meanwhile, Field sold the ranch. By agreement of Brent, Field and J & J, $750,000 of the sale proceeds was placed in an escrow account with Amarillo National Bank.           Field obtained a partial summary judgment offsetting sums Brent sought under the agreement by $244,964.90. Following a bench trial, the court orally rendered judgment, later memorialized in a writing signed January 25, 2008. In part, the judgment divided the escrowed funds, giving $59,875.43 to Brent, an amount to Thomas & Watson, and the balance to Field. Brent timely appealed. Analysis           Through her first, second, and third issues Brent argues no evidence supported the trial court’s implicit findings that under paragraph 2 of the February 2003 contract, Field was not bound to indemnify Brent for the Maltese Cross, American Express, and Systems and Services Technology, Inc. claims. Our resolution of these issues turns on the intention of the parties expressed in the February 2003 contract and the Maltese Cross assignment.           We review a trial court’s construction of an unambiguous contract de novo. MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 650 (Tex. 1999). We construe the contract as a matter of law. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). In conducting a de novo review, we exercise our own judgment and redetermine each legal issue. Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1999). When construing a written contract, the primary concern of the court is ascertaining the true intentions of the parties as expressed in the instrument. Coker, 650 S.W.2d at 393. To achieve this objective, the court examines and considers the entire writing in an effort to harmonize and give effect to all the provisions of the contract so that none are rendered meaningless. Id. No single provision taken alone is given controlling effect; rather, all the provisions are considered with reference to the entire instrument. Id. The court takes the intention of the parties from the instrument itself and not the parties’ present interpretation. Calpine Producer Services, L.P. v. Wiser Oil Co., 169 S.W.3d 783, 787 (Tex.App.–Dallas 2005, no pet.). Instruments pertaining to the same transaction may be read together to ascertain the intent of the parties, even if the parties executed the instruments at different times. Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 840 (Tex. 2000).           From a reading of the February 2003 contract, it is immediately apparent that the indemnity provision of paragraph 2 was not intended to be absolute. The indemnity provision flatly states that Field agrees to indemnify Brent and her husband “from liability for any and all obligations of the partnership.” However, paragraph 3 of the contract provided circumstances under which Brent would be charged, without indemnification, for half the partnership’s obligation to Case Credit Corporation. More significantly, paragraph 5 of the contract bound Brent to pay the entirety of the partnership’s $800,000 obligation to PNB Financial Bank and limited the amount of her reimbursement from Field to no more than $350,000. And Brent’s $350,000 reimbursement under paragraph 5 was subject to reduction by the amount of any partnership funds expended by Brent during the preceding two years for non-partnership purposes. It is thus clear the parties contemplated the existence of partnership obligations not subject to indemnification under paragraph 2.           The Maltese Cross assignment, executed a month later by the parties to the contract, and Brent’s husband and Maltese Cross, made express reference to the contract and Brent’s paragraph 5 reimbursement right. It made no reference, however, to the paragraph 2 indemnification provision. By the assignment, Brent and her husband bound themselves to pay the Maltese Cross claim and Brent transferred to Maltese Cross a substantial amount of her potential reimbursement under paragraph 5. In other words, she assigned money due her from Field as partial indemnification for paying a partnership obligation, the PNB Financial Bank debt, to satisfy the claim of Maltese Cross, with no expressed regard or reference to a claim of indemnification. For her part, in the assignment, Field guaranteed Brent’s reimbursement under paragraph 5 would not be less than $170,000.           Construing the February 2003 contract and the Maltese Cross assignment together, we conclude the parties intended the Maltese Cross claim, like other claims identified or referred to in the contract, was not subject to the indemnification provision of its paragraph 2.           Brent had an American Express credit card account which was used for the business of Romero Creek and the other entities she and Field owned. After February 11, 2003, Field and her husband chose not to pay the account balance and used the card for further purchases. Brent made the minimum monthly payment required by American Express. Shortly before trial, Field negotiated a resolution of the account with American Express, disposing of the account balance. At trial, Brent sought and was awarded a “credit” of $2,599.78 for payments she made on the account. Between Field’s negotiated payment and the court’s award, Brent was made whole for her American Express claim. Brent’s claim of damage to her credit reputation as a result of Field’s conduct is not supported by the evidence.           As noted, a pickup addressed in the February 2003 contract was repossessed. There was testimony that Field did not timely make a payment on the vehicle. Field countered that she mailed the payment but Brent instructed the lienholder’s agent Systems and Services, Technology, Inc. to proceed with repossession. Brent contends her credit reputation was damaged as a result of the default and repossession. However, the record evidence does not support this contention. Brent’s first, second, and third issues are overruled.           The trial court granted Field an offset of $102,460 against Brent’s reimbursement under paragraph 5 for the allegedly wrongful conduct of Brent’s husband. Through issues four, five and eight, Brent argues the court’s implicit finding of Field’s entitlement to the offset is not supported by any evidence. Anything more than a scintilla of evidence is legally sufficient to support the court’s finding. See Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996).           At trial, there was evidence that Maltese Cross made pasture payments of $102,460 to Brent’s husband which were not remitted to JJ Cattle Company. Field contends the trial court properly charged Brent with that amount under paragraph 5's authorization for offsets against Brent’s reimbursement for partnership funds expended by Brent for non-partnership purposes. But the conduct of Brent, not her husband, is the bargained-for standard of this provision. The evidence must support a theory connecting Brent to wrongful expenditures if the pasture payments are to offset the reimbursement.           Field argues the payment from Maltese Cross is attributable to Brent under the contract because when Brent’s husband received the funds and used them for non-partnership purposes the funds were community property. According to Field’s argument, because it is presumed that property acquired during marriage is community, it was for Brent to prove by clear and convincing evidence that the funds her husband received were his separate property.           Here, however, the issue is not the character of funds in the hands of Brent’s husband, but conduct described by contractual language. Assuming, without deciding, that Brent’s husband received and expended Maltese Cross payments for non-partnership purposes, the parties do not direct us to, and we do not find, any evidence giving rise to a theory vicariously or directly binding Brent for the conduct of her husband. Under the express language of paragraph 5, there is no legal basis to charge Brent with her husband’s allegedly wrongful receipt of Maltese Cross payments.           Within the grouping of issues under discussion here, Brent asserts through three sub-issues that no evidence supports the trial court’s implicit findings of offset in favor of Field for (1) missing partnership hay, allegedly removed by Brent’s husband, (2) partnership funds totaling $6,239.29 allegedly used by Brent’s husband for a personal cattle truck lease payment and tires, (3) and interest on a capital contribution from Field to the partnership. The trial court, however, did not award an offset of Brent’s reimbursement for any of these items.           We sustain Brent’s issues four, five, and eight as to the offset of $102,460. We overrule the associated sub-issues challenging offsets for hay, cattle truck expenditures, and interest on a capital contribution. We do not reach the remaining sub-issues as their discussion is unnecessary to our disposition. See Tex. R. App. P. 47.1.           By her sixth issue, Brent asserts she conclusively proved entitlement under paragraph 5 of the February 2003 contract to a credit of $114,591.82 against Field’s offsets to the reimbursement. She argues it was undisputed that Field and her husband expended partnership funds for non-partnership purposes. In this respect, the contract provides, “any funds expended or used by [Field or her husband] for non-partnership purposes shall be credited against the offsets [of Brent’s reimbursement].”           An appellant attacking the legal sufficiency of evidence supporting an adverse finding on which she had the burden of proof must show on appeal that a contrary finding was established as a matter of law. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). Brent’s matter of law issue requires we first examine the record for some evidence supporting the trial court’s implicit finding that she was not entitled to the credit of any offset, crediting evidence favoring it if a reasonable fact finder could and disregarding contrary evidence unless a reasonable fact finder could not. See Central Ready Mix Concrete Co., Inc. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007). If no evidence appears to support the finding, we then examine the entire record to determine whether the contrary proposition is established as a matter of law. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam); Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264, 276 (Tex.App.–Amarillo 1988, writ denied). A proposition is established as a matter of law when a reasonable fact finder could draw only one conclusion from the evidence presented. See City of Keller v. Wilson, 168 S.W.3d 802, 814-16 (Tex. 2005).           The evidence was not conclusive that the challenged expenditures of Field and her husband were for non-partnership purposes. Without objection the trial court admitted exhibits consisting of computer data entries, statements, and canceled checks offered to show misuse of partnership funds by Field and her husband. The items comprising the exhibits, while perhaps illustrative of imprudent accounting practices, do not, on their face, conclusively prove misuse of partnership funds by Field and her husband.           Brent testified she was “questioning” food store charges and vehicle maintenance charges. She further qualified her awareness of the latter charge with, “I don’t know.” She agreed that charges for pet food for partnership hunting dogs did not fit what she believed appropriate. When asked on cross-examination if charges were for non-partnership purposes Brent responded “[j]ust from my personal knowledge and experience, I believe they’re personal.” Later, Brent agreed it was her assumption that the charges were for non-partnership purposes but she did not know. Still later Brent agreed she did not know if the charges were for non-partnership purposes.           Concerning amounts Brent attributed to the wrongful purchase by Field of health insurance for Field and her family, Field’s husband testified that at the request of Brent’s husband he accepted a bookkeeping position with the partnership. Compensation included salary and health insurance.           But even were we to assume no evidence supports the court’s implicit finding, conclusive proof of Brent’s proposition is lacking. The unsupported assumptions and subjective belief of Brent create no more than surmise or suspicion and in effect amount to no evidence. See Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752, 755 (Tex. 1970). (“when the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, such evidence is in legal effect no evidence, and it will not support a verdict or judgment”). And the testimony of Field’s husband on the insurance expenditure issue raises a question of fact which the trial court implicitly resolved against Brent. We, accordingly, overrule Brent’s sixth issue.           In her seventh issue, Brent asserts there was no evidence to support the trial court’s equal division between her and Field of the charge by Thomas & Watson for hauling cattle. Prior to trial, and based on a stipulation of the parties, the court signed an agreed order finding that in November 2002 Thomas & Watson performed the hauling for which it sought payment, its charge with interest was $7,769.19, and it incurred reasonable and necessary attorney’s fees of $6,485.73. The order left for trial determination of the party or parties responsible for paying the Thomas & Watson obligation.           Field’s husband testified Thomas & Watson was not paid because he did not believe the cattle hauled were partnership cattle. On cross-examination of Billy Ray Watson, a principal of Thomas & Watson, the following exchange occurred: Q.Now I have no doubt that these cattle were hauled, but can you tell me, sir, who owned the cattle–   A.No.   Q.–as between [Brent’s husband], [Brent’s father-in-law], Maltese Cross, JJ, or someone else; can you tell me who owned the cattle?   A.No I can’t.             Documentary evidence included canceled checks paid to Thomas & Watson and drawn on the accounts of “R. P. Brent IV Cattle,” and “3 B Cattle Co.” Watson testified of loading cattle for Brent’s husband but he also acknowledged receiving checks from 3 B Cattle Co. He further testified that one load of cattle was taken from a location where the “Brents” sometimes penned cattle. It is impossible to determine from the testimony whether “Brents” referred to Brent and her husband or her husband and father-in-law. There was no testimony explaining on whose behalf Brent’s husband acted when he arranged for hauling the loads in question. Brent’s husband invoked the Fifth Amendment privilege against self-incrimination when asked whose cattle Thomas & Watson hauled in 2002. As noted, at various times, cattle pastured on the Houghton Ranch belonged to the partnership, Maltese Cross, and Brent’s husband. A voluminous trial exhibit contained the bills of lading and invoices of Thomas & Watson. Our examination of these records shows that bills of lading for shipments during November 2002 identify Brent’s husband, 3 B Cattle, or Brent Ranch as shipper. A summary invoice, which according to Watson approximated the charges Thomas & Watson sought, indicates the purchaser of services was Brent’s husband. Two bills included on the invoice show the shipper was the Brent Ranch. Of these, one bill indicates the cattle were loaded at the Houghton Ranch. Three bills on the summary list the Houghton Ranch as point of loading.           By the agreed order, the issue of which party to the suit was obligated for the Thomas & Watson obligation was tried. The court split the amount equally between Brent and Field. From the evidence presented, however, it is not possible to determine what, if any, charges are properly attributable to any of the parties to the underlying action. We must sustain Brent’s seventh issue.           By her ninth issue, Brent argues the trial court’s judgment is ambiguous in its apportionment between her and Field of the Thomas & Watson obligation and by twice taxing court costs in favor of Thomas & Watson. Field does not challenge by separate appeal the award against her in favor of Thomas & Watson. See Tex. R. App. P. 25.1(c). Our disposition of Brent’s seventh issue makes consideration of her ninth issue unnecessary. Tex. R. App. P. 47.1.           By her eleventh issue, Brent contends that as a matter of law she was entitled to an award of attorney’s fees. In her live pleading, Brent alleged Field breached their February 2003 contract by not paying all sums due. Brent sought recovery of attorney’s fees according to Chapter 38 of the Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. § 38.001 et seq. (Vernon 2008). Through the testimony of her attorney, Brent presented detailed evidence of the amount of attorney’s fees expended and to be expended as well as opinion testimony that the fees charged were reasonable and necessary. To his testimony of the representation, counsel applied the nonexclusive factors prescribed by the Texas Supreme Court for determining the reasonableness of attorney’s fees. See Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997) (citing Tex. Disciplinary R. Prof. Conduct 1.04, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A (Tex. State Bar R. art. X, § 9)). The court granted Brent a money judgment of $55,634.88 plus prejudgment interest at the rate of six percent. Yet, it denied her an award of attorney’s fees.           Whether a party is entitled to recover attorney’s fees is a question of law for the trial court which we review de novo. See Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94, 95 (Tex. 1999). A party may recover reasonable attorneys’s fees in a suit founded on a claim for breach of an oral or written contract. Tex. Civ. Prac. & Rem. Code Ann. § 38.001(8) (Vernon 2008). The party must prevail on a cause of action for which the recovery of attorney’s fees is allowed and recover damages. Green Int’l v. Solis, 951 S.W.2d 384, 390 (Tex. 1997). Under section 38.001, an award of reasonable attorney’s fees is mandatory if there is proof of the reasonableness of the fees. Tex. Civ. Prac. & Rem. Code Ann. § 38.001 (Vernon 2008); Recognition Communs., Inc. v. Am. Auto. Ass’n, Inc., 154 S.W.3d 878, 891 (Tex.App.–Dallas 2005, pet. denied); Budd v. Gay, 846 S.W.2d 521, 524 (Tex.App.–Houston [14th Dist.] 1993, no writ). A court possesses discretion to determine the amount of attorney’s fees, but it lacks discretion to deny attorney’s fees if they are proper under section 38.001. Budd, 846 S.W.2d at 524.           Field argues the trial court did not err by failing to award attorney’s fees because she was sued for over $800,000 and “prevailed” on all but $55,000 of Brent’s claim. But this is not the standard under section 38.001. A recovery of attorney’s fees under section 38.001 is allowed even though the damages a party recovers are completely offset by the claim of the opposing party. McKinley v. Drozd, 685 S.W.2d 7, 10-11 (Tex. 1985). Thus while a party must prevail on a ground under 38.001, it need not obtain a net recovery. Id. Brent obtained a net recovery.           The main issue in this case was what, if any, amount was due Brent under the February 2003 contract. Pursuant to the contract, the trial court awarded Brent an amount of money. The trial court was without discretion to deny her an award of attorney’s fees according to section 38.001. The amount of the award remains a question of fact which the trial court must resolve on limited remand. We sustain Brent’s eleventh issue.           In her tenth issue, Brent complains that the trial court erred by ordering Amarillo National Bank to disburse the funds held in the escrow account according to specified amounts. Following judgment, but before the lapse of the trial court’s plenary power, the bank intervened in the underlying case by interpleading the escrowed funds into the registry of the court. The bank was subsequently discharged by agreed order. The funds are the subject of a proceeding brought by Brent under Rule of Appellate Procedure 24 to suspend enforcement of the judgment. They currently remain in the registry of the trial court. Given our disposition of Brent’s other issues, and the presence of the funds in the registry of the court, it is not necessary that we further address her tenth issue. Tex. R. App. P. 47.1. Conclusion           Having addressed the appellate issues necessary to disposition of the appeal, we render judgment that Brent recover from defendants Martha C. Field and J & J Family Limited Partnership jointly and severally the sum of $158,094.88 , prejudgment interest at the annual rate of 6%, post-judgment interest on the total sum at the annual rate of 6%, and costs of court.           The award to Brent of $4,240.55 as prejudgment interest is vacated and the case remanded to the trial court for calculation of prejudgment interest consistent with this opinion.           That portion of the judgment denying Brent an award of attorney’s fees is reversed and the case remanded to the trial court for determination of a reasonable award of attorney’s fees for Brent according to Chapter 38. Tex. Civ. Prac. & Rem. Code Ann. § 38.001 et seq. (Vernon 2008).           That portion of the judgment awarding Thomas & Watson Trucking, Inc., recovery from Brent is reversed and judgment is rendered that Thomas & Watson Trucking, Inc., take nothing by its counterclaim against Brent.           We vacate the following portion of the judgment: The Court references that certain Escrow Agreement dated October 5, 2005, between Amarillo National Bank, J & J Cattle Family Limited Partnership, JJ Roundup, Inc., Martha C. Field, and Elizabeth C. Brent. The Court ORDERS Amarillo National Bank to disburse the escrow funds as follows: $59,875.43 shall be disbursed to Elizabeth C. Brent; $7,127.46 shall be disbursed to Thomas & Watson Trucking, Inc.; and The balance of the escrow funds shall be disbursed to Martha C. Field.           We otherwise affirm the judgment of the trial court.           The proceedings in the trial court on remand and its resulting judgment shall be according to the following instructions. This is a limited remand. The issues for determination by the trial court on remand are the amount of prejudgment interest Brent is due according to this opinion and our judgment, and an award of reasonable attorney’s fees for Brent. See Tex. Civ. Prac. & Rem. Code Ann. § 38.001 et seq. (Vernon 2008). After determining these two issues, the trial court shall sign a judgment containing: (1) its determinations on the issues remanded; (2) the matters on which we have rendered judgment; and (3) the matters we have affirmed. Concurrent with signing its judgment on remand, and according to the terms of that judgment, the trial court shall issue an order directing the district clerk to distribute the funds held in the trial court’s registry in this case to Brent, Thomas & Watson, and Field. The order shall further provide for payment to Hartley County according to statute. Tex. Local Gov’t Code Ann. § 117.054 (Vernon 2008).   James T. Campbell Justice

01-03-2023

09-07-2015

https://www.courtlistener.com/api/rest/v3/opinions/3062364/

IN THE COURT OF APPEALS OF IOWA No. 14-1219 Filed October 14, 2015 STATE OF IOWA, Plaintiff-Appellee, vs. DIRK J. FISHBACK, Defendant-Appellant. ________________________________________________________ Appeal from the Iowa District Court for Clayton County, Richard D. Stochl, Judge. Dirk Fishback appeals from his conviction for harassment in the second degree. AFFIRMED. Mark C. Smith, State Appellate Defender, for appellant. Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney General, Alan Heavens, County Attorney, and Ry Meyer, Assistant County Attorney, for appellee. Considered by Danilson, C.J., and Vogel and Tabor, JJ. 2 VOGEL, Judge. Dirk Fishback appeals his conviction following a bench trial for harassment in the second degree. He claims there was insufficient evidence to sustain the conviction, counsel was operating under a conflict of interest and was therefore ineffective, and the district court erred in permitting, if not requiring, Fishback to represent himself posttrial. We conclude the evidence supports that Fishback intended the threat he made and had no legitimate purpose or free-speech protection in doing so. Furthermore, Fishback was not forced into a position of not having counsel postconviction. With regard to his claim of ineffective assistance of counsel, we preserve his claim for possible postconviction-relief proceedings. Therefore, we affirm Fishback’s conviction. I. Background Facts and Procedure Frustrated with what he perceived as law enforcement’s harassment of his girlfriend, on February 13, 2012, Fishback left the following message on Clayton County Deputy Sheriff Mark Kautman’s voicemail: Mark, Dirk Fishback here. Hey, your bullshit almost put [my girlfriend] on the road. She turned around she came back in here but the shit you’re putting her through here, worse than anything else has got to stop. I don’t care if I go to jail or not, if it don’t stop I will beat your ass. And you can repeat that [unintelligible] if you want, take it as a threat, take it however you want it. But when you start f*cking with people’s lives and putting them in danger, that’s enough. Now, why don’t you call me tomorrow and we’ll talk about this. Now! . . . . Mark, you got a problem with me you come to me. You know what, you can’t come to me you big f*cking pussy? Do it. Leave everybody else out of it. You got a problem with me, come to me. Yeah, I called you a big f*cking pussy. Call me tomorrow and man up. 3 Deputy Kautman considered this to be a credible threat, particularly given that, as he testified at trial, he knew of “some of [Fishback’s] history.” On February 15, 2013, Fishback was charged with harassment in the first degree, an aggravated misdemeanor, in violation of Iowa Code section 708.7(2) (2011). After numerous continuances and Fishback’s waiver of a jury trial, the matter came on for trial to the court on February 20, 2014. On April 22, the court entered its verdict, finding: Fishback called Kautman in order to get him to stop communicating with [his girlfriend] and investigating him. His purpose was to intimidate Kautman into following his demands. Threatening to “beat his ass” was a communication conveyed in a manner likely to annoy Kautman. Fishback’s threat did contain a reference of physical violence . . . . The[re] was a contingent threat predicated on an ongoing investigation. If Kautman did not cease his use of [the girlfriend], Fishback was going to “beat his ass.” This court does find that statement to rise to the level of a threat to commit bodily injury but not one to commit a forcible felony. His conduct constitutes harassment at the serious misdemeanor level. Based on these facts, the district court found Fishback guilty of second- degree harassment, in violation of Iowa Code section 708.7(3), a serious misdemeanor. Following the conviction trial counsel withdrew, and in May Fishback was directed to hire another attorney. The sentencing hearing was scheduled for July 22, 2014, at which time Fishback had not retained counsel. He then orally moved to continue the sentencing hearing. The district court denied the motion and proceeded to sentencing, ordering Fishback to serve a term of incarceration of ninety days, with all but two days suspended, as well as imposed various fines and fees. Fishback appeals. 4 II. Standard of Review We review claims based on the sufficiency of the evidence for correction of errors at law. State v. Lapointe, 418 N.W.2d 49, 51 (Iowa 1988) (further noting that sufficiency claims are reviewed in the same manner whether the guilty verdict followed a bench trial or a jury trial). We view the evidence in the light most favorable to the State. Id. Our review of constitutional issues is de novo, including ineffective-assistance claims as well as the denial of the constitutional right to counsel. See State v. Majerus, 722 N.W.2d 179, 181 (Iowa 2006); see also State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). III. Sufficiency of the Evidence Fishback first asserts there was insufficient evidence supporting his second-degree harassment conviction. He argues he did not intend to make a threat, various statements were misinterpreted, and his voicemail had a legitimate purpose—that is, to evoke a response so officers would respond to his calls. He further claims his speech was protected by the First Amendment. To convict a defendant of harassment, the State must prove he intended to: (1) intimidate, annoy, or alarm another person; (2) by communication in writing or by telephone; (3) without a legitimate purpose; and (4) in a manner likely to cause the other person annoyance or harm. See Iowa Code § 708.7(1) (2011). To constitute second-degree harassment, the communication must constitute a threat to commit bodily injury. See id. § 708.7(3). We agree with the district court the State met its burden establishing Fishback committed harassment in the second degree. In the audio recording, Fishback threatens to “beat [Deputy Kautman’s] ass,” a statement he, at trial, 5 conceded he made. This is clearly a threat to commit bodily injury, and Deputy Kautman took it as such. See id. § 708.7(3). Though Fishback claims his primary objective when calling Deputy Kautman was to elicit a reaction and to receive a response to his telephone calls, the record does not support this argument. The threat of violence towards Deputy Kautman was explicit, repeated several times, and at no point did Fishback request Deputy Kautman call him back to discuss his girlfriend’s case; rather, he stated: “Now, why don’t you call me tomorrow and we’ll talk about this . . . . Mark, you got a problem with me you come to me. You know what, you can’t come to me you big f*cking pussy? Do it.” This indicates he had the intent to intimidate, annoy, or alarm Deputy Kautman. See id. § 708.7(1). The record also establishes Fishback’s statements were threatening, and thus he had no legitimate purpose when leaving the voicemail. Our supreme court has held that a “true threat” constitutes “a statement that an ordinary, reasonable person, familiar with the context in which the statement was made, would interpret as a threat.” State v. Milner, 571 N.W.2d 7, 14 (Iowa 1997). A reasonable person would interpret Fishback’s statements to “beat his ass” as threatening, and as Deputy Kautman testified, knowing Fishback’s history, he believed Fishback was capable of following through with the threat. Consequently, the record supports the conclusion Fishback threatened Deputy Kautman, with the intent to intimidate, annoy, or alarm; moreover, as a matter of law, his threat did not have a legitimate purpose. See Iowa Code §§ 708.7(1), (3); see also Milner, 571 N.W.2d at 14. 6 Furthermore, we do not agree with Fishback’s claim the First Amendment protected his speech. Our supreme court has noted that the “without legitimate purpose” element is the “constitutional safety valve” built into the statute. See State v. Button, 622 N.W.2d 480, 485 (Iowa 2001) (citing State v. Fratzke, 446 N.W.2d 781, 783 (Iowa 1989)). As noted above, Fishback’s message did not have a legitimate purpose. Therefore, no First-Amendment rights were implicated. See id.; see also Milner, 571 N.W.2d at 14 (noting the First Amendment does not protect speech that constitutes a threat). Consequently, sufficient evidence supports Fishback’s conviction for second-degree harassment. IV. Ineffective Assistance of Counsel Fishback further asserts there was a conflict of interest, as his counsel was also representing Fishback’s girlfriend in a child-in-need-of-assistance proceeding, as well as defending her in a drug case.1 Because Fishback claims his motivation in leaving the heated message on Deputy Kaufman’s voicemail was tied to the allegations in his girlfriend’s ongoing court proceedings, Fishback claims he was denied effective assistance of counsel. A defendant may raise an ineffective-assistance claim on direct appeal if the record is adequate to address the claim. Straw, 709 N.W.2d at 133. We may either decide the record is adequate and issue a ruling on the merits, or we may choose to preserve the claim for postconviction proceedings. Id. 1 Fishback’s court appointed counsel represented him through the bench trial before he withdrew, citing a breakdown of attorney-client relations. 7 On appeal, Fishback refers to a juvenile file the district court declined to consider, as well as information he retrieved from Iowa Courts Online. For us to find a conflict of interest would require us to go beyond the record before the district court, and hence the record on appeal. This we cannot do. We therefore preserve Fishback’s claim for possible post-conviction proceedings, in which a properly-developed record can be established. See State v. Truesdell, 679 N.W.2d 611, 616 (Iowa 2004) (“Ordinarily, ineffective assistance of counsel claims are best resolved by postconviction proceedings to enable a complete record to be developed and afford trial counsel an opportunity to respond to the claim.”). V. Post-Trial Legal Counsel Fishback’s final claim asserts he was denied posttrial legal counsel. He argues the district court improperly permitted—if not required—him to represent himself at the sentencing hearing, thus denying him his Sixth Amendment right to counsel. The State responds this claim is improperly framed as a Sixth Amendment issue, and that rather, Fishback disputes the district court’s denial of his motion for a continuance. We agree with the State that Fishback was not prevented from exercising his right to counsel, as he was represented through trial. After counsel’s withdrawal he had ample time to obtain another attorney, as ordered by the court. Consequently, we will review the district court’s denial of Fishback’s motion to continue, which we review for an abuse of discretion. See State v. Clark, 814 N.W.2d 551, 560 (Iowa 2012). This decision rests within the court’s discretion, but nonetheless, the granting of a motion to continue is discouraged 8 and should not be done unless the defendant can establish good cause. See id. at 564; see also Iowa R. Civ. P. 2.92. The record establishes the district court did not abuse its discretion when denying Fishback’s motion to continue the sentencing hearing. Though trial counsel was not present due to his withdrawal earlier in the proceedings, Fishback was given several months to procure another lawyer, but failed to do so. The district court also noted Fishback was aware of this situation and was relying on a right-to-counsel argument so as to delay the proceedings. Based on these facts, Fishback did not show good cause for the requested delay, and the district court did not abuse its discretion when denying his motion to continue. See State v. Lopez, 633 N.W.2d 774, 778–79 (Iowa 2001) (noting there are several factors to consider when ruling on a motion to continue, but the district court “should not permit a defendant to manipulate the right to counsel to delay or disrupt” the proceedings). For these reasons, we affirm Fishback’s conviction for harassment in the second degree. AFFIRMED.

01-03-2023

10-14-2015

https://www.courtlistener.com/api/rest/v3/opinions/3062365/

IN THE COURT OF APPEALS OF IOWA No. 14-2075 Filed October 14, 2015 STATE OF IOWA, Plaintiff-Appellee, vs. DEYAWNA LEANETT TAYLOR, Defendant-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Story County, Steven P. Van Marel, District Associate Judge. Defendant appeals her convictions for driving while barred and selling her services in a sex act. AFFIRMED. Mark C. Smith, State Appellate Defender, and Joseph A. Fraioli, Assistant Appellate Defender, for appellant. Thomas J. Miller, Attorney General, Alexandra Link, Assistant Attorney General, Stephen H. Holmes, County Attorney, and Shean Fletchall, Assistant County Attorney, for appellee. Considered by Potterfield, P.J., McDonald, J., and Scott, S.J.* *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015). 2 SCOTT, Senior Judge. Defendant Deyawna Taylor appeals her convictions for driving while barred and selling her services in a sex act, claiming they should be dismissed on speedy trial grounds. Taylor waived her right to a speedy trial when she entered into a proffer agreement with the State after the ninety-day speedy trial deadline had passed and she was aware the criminal proceedings against her would be postponed until after she testified in the trial of a codefendant. We preserve for possible postconviction proceedings her claim of ineffective assistance due to counsel’s failure to promptly file a motion to dismiss on speedy trial grounds. We affirm Taylor’s convictions. I. Background Facts & Proceedings The State filed a trial information in Story County on July 28, 2014, charging Taylor with driving while barred, in violation of Iowa Code section 321.561 (2013), an aggravated misdemeanor, and selling her services in a sex act, in violation of section 725.1, an aggravated misdemeanor. Taylor’s arraignment was scheduled for August 11, 2014, but she did not appear, and a warrant was issued for her arrest. No further action occurred in the case until October 29, 2014, when the State requested that Taylor be transported from the Mitchellville Correctional Facility in order to appear for arraignment.1 Taylor filed a written arraignment on November 12, 2014. 1 On July 29, 2014, the day after the trial information was filed in this case, Taylor was arrested in Polk County. At the time of her scheduled arraignment in Story County, she was in custody in Polk County. She was subsequently transferred from the Polk County jail to the Mitchellville Correctional Facility. 3 On the same day, November 12, 2014, Taylor also entered into a Memorandum of Understanding in which she agreed to cooperate and testify in the trial of a codefendant, which was expected to take place within a few months, and in exchange certain concessions would be made by the State.2 At the proffer meeting, defense counsel asked if Taylor could go ahead and file guilty pleas to two simple misdemeanors at that time, with the understanding the State would dismiss the charges for aggravated misdemeanors. The prosecutor requested Taylor not file the guilty pleas until after she had testified at the codefendant’s trial because the testimony was an integral part of the agreement. At the time the Memorandum of Understanding was signed, it was clear to all the parties that the criminal prosecution against Taylor would remain pending until after she had testified in the codefendant’s trial, which was expected to take place in a few months. On December 8, 2014, Taylor filed a motion to dismiss for lack of a speedy trial. She argued she had not been tried within ninety days after the trial information was filed, as required by Iowa Rule of Criminal Procedure 2.33. The State claimed Taylor waived her right to a speedy trial by entering into the Memorandum of Understanding. It also asserted that by seeking dismissal based on speedy trial grounds, Taylor violated the terms of the agreement. After a hearing the court denied the motion to dismiss, stating: 2 The Memorandum of Understanding is not included in the record. A transcript was prepared from the meeting when the agreement was signed. Although the transcript as a whole is also not part of the record in this case, parts of the transcript were read into the record at the hearing on Taylor’s motion to dismiss and therefore provide some evidence of the terms of the agreement and the matters discussed at the proffer meeting. 4 I think what the file here really shows it that even though a speedy trial had maybe technically ran on the 25th of October, the defendant acquiesced to that waiver of speedy trial when she signed a proffer on November 12 of 2014. There are multiple reasons why maybe she didn’t want to file a motion to dismiss for speedy trial at that time. I’m not going to second guess counsel’s decision. It might have been that counsel wasn’t for sure that the motion to dismiss would be granted for lack of speedy trial. She wanted to take advantage of the plea agreement. There was lots of discussion it sounds like about the delay, so the defendant and her attorney knew there would be a delay if she signed the proffer, and she signed the proffer anyway without signing—or without filing a motion to dismiss for lack of speedy trial or even discussing that. Now, the defendant filed her motion to dismiss for lack of speedy trial on December 8th of 2014. So I think what happened was she waived speedy trial on November 12 of 2014, and acquiesced to going past the speedy trial date before that by signing the proffer. Taylor waived her right to a jury trial, and the case was tried to the court based upon the minutes of evidence. The court found her guilty of driving while barred and selling her services in a sex act. She was sentenced to two years in prison on each charge, to be served consecutively. Taylor now appeals, claiming the charges against her should have been dismissed on speedy trial grounds. II. Speedy Trial A. Taylor contends the district court abused its discretion in denying her motion to dismiss on speedy trial grounds. She claims the court erred by finding she had waived her right to a speedy trial by entering into the Memorandum of Understanding. Taylor points out that when she entered into the agreement, on November 12, 2014, the ninety-day speedy trial period had already expired on October 26, 2014. She argues the terms of the agreement were not sufficient to waive her speedy trial rights because the speedy trial deadline had expired before she entered into the agreement. 5 Our review is for the correction of errors at law. State v. Miller, 637 N.W.2d 201, 204 (Iowa 2001). “The trial court’s discretion to avoid dismissal . . . is circumscribed by the limited exceptions to the rule’s mandate.” Id. Ultimately, then, the issue is whether the district court abused its limited discretion. Id. Iowa Rule of Criminal Procedure 2.33(2)(b) provides: If a defendant indicted for a public offense has not waived the defendant’s right to a speedy trial the defendant must be brought to trial within 90 days after indictment is found or the court must order the indictment to be dismissed unless good cause to the contrary be shown. Criminal charges should be dismissed if the speedy trial deadlines have been surpassed “unless the defendant has waived speedy trial, the delay is attributable to the defendant, or other ‘good cause’ exists for the delay.” State v. Miller, 637 N.W.2d 201, 204 (Iowa 2001). The concept of “good cause” focuses on only one factor—the reason for the delay. Id. at 205. Even when a person does not expressly waive the right to a speedy trial, the person may impliedly waive the right by delaying trial, such as filing a motion to continue. See State v. LeFlore, 308 N.W.2d 39, 41 (Iowa 1981). Also, “a defendant may not actively, or passively, participate in the events which delay his or her trial and then later take advantage of that delay to terminate the prosecution.” State v. Ruiz, 496 N.W.2d 789, 792 (Iowa Ct. App. 1992). At the time Taylor entered into the agreement, she was aware the trial would be further delayed until after the trial of her codefendant, thus impliedly waiving her right to a speedy trial by agreeing to a delay in the proceedings. When a person enters a guilty plea the person waives all challenges to the charge based on speedy trial claims. See State v. McGee, 211 N.W.2d 267, 268 6 (Iowa 1973) (“We hold that defendant waived delay in trial by pleading guilty.”); see also State v. Burgess, 639 N.W.2d 564, 567 (Iowa 2001) (stating a guilty plea waives challenges to a charge based on statute-of-limitations or speedy indictment grounds). Here, Taylor was prepared to file guilty pleas on November 12, 2014, which shows she was willing to waive her speedy trial objections at that time. Moreover, where a delay is the result of negotiations between the defendant and the State, there may be good cause for the delay. Ruiz, 496 N.W.2d at 792; see also State v. Stanley, 351 N.W.2d 539, 540 (Iowa Ct. App. 1984) (finding one factor supporting good cause for delay was defendant’s decision not to participate in further plea negotiations). The prosecutor argued Taylor was involved in discussions before she entered into the agreement to testify against her codefendant, which would provide good cause for at least part of the delay. We find the district court did not err in concluding, “the defendant acquiesced to that waiver of speedy trial when she signed a proffer on November 12 of 2014.” In addition, the court did not err in finding Taylor “acquiesced to going past the speedy trial date before that by signing the proffer.” B. On appeal, Taylor has presented a proposal for a bright-line rule for postexpiration waiver of speedy trial rights. She asserts that after the speedy trial deadline has passed the State should be required to establish the defendant received a benefit in exchange for waiving the violation of the speedy trial rights. This issue was not raised before the district court, and we conclude it has not been preserved for our review. See State v. Wilson, 573 N.W.2d 248, 251 (Iowa 7 1998) (stating issues are preserved when they are considered and ruled upon by the district court). III. Ineffective Assistance A. Taylor asserts that if we find her motion for dismissal on speedy trial grounds was not timely because it was raised after the ninety-day speedy trial deadline had passed, this was due to ineffective assistance of counsel. We have not determined Taylor’s motion for speedy trial was untimely but considered her speedy trial claim on the merits. We therefore do not address her claim of ineffective assistance of counsel on this ground. B. Taylor also claims she received ineffective assistance because defense counsel did not promptly file a motion to dismiss on speedy trial grounds once the ninety-day speedy trial deadline passed. Generally, claims of ineffective assistance of counsel are considered in postconviction relief proceedings. State v. Gaskins, 866 N.W.2d 1, 5 (Iowa 2015). We resolve such claims on direct appeal only if the record is adequate to address the claim. Id. We conclude the record is not adequate to address this issue on direct appeal. We determine the issue should be preserved for possible postconviction proceedings. AFFIRMED.

01-03-2023

10-14-2015

https://www.courtlistener.com/api/rest/v3/opinions/3062369/

IN THE COURT OF APPEALS OF IOWA No. 14-1441 Filed October 14, 2015 STATE OF IOWA, Plaintiff-Appellee, vs. BENNIE LENOIR, Defendant-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Des Moines County, Mark Kruse, District Associate Judge. A defendant appeals his sentence. AFFIRMED. Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg, Assistant Appellate Defender, for appellant. Thomas J. Miller, Attorney General, Martha Trout, Assistant Attorney General, Amy Beavers, County Attorney, and Justin Stonebrook, Assistant County Attorney, for appellee. Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ. 2 VAITHESWARAN, Presiding Judge. Bennie James Lenoir pled guilty to being absent from custody, a violation of Iowa Code section 719.4(3) (2013). The district court sentenced him to 364 days in jail. On appeal, Lenoir contends the sentencing court only relied on his criminal history in sentencing him and “did not consider any mitigating circumstances or chances at reform.” The court stated its reasons for the sentence as follows: All right. Again, the facts of this case, as I think are already stated by counsel, is you were being held in jail and on a substantial bond on very serious offenses. A district court judge gave ya a huge break by granting a furlough, and you just—blew it off. Totally blew it off. And I believe you weren’t found until May, and this happened in November. Your initial appearance in this case was in May. And I believe you just went to trial yesterday, were found guilty— Lenoir: Yes, sir. The Court: —on very serious charges again. And the Court is aware you have a very lengthy prior criminal record. For those reasons, the sentence of the Court will be 364 days in jail. Mittimus to issue immediately, credit for any time served, to run consecutive to any other sentence you’re serving. We discern no abuse of discretion in this statement. State v. Grandberry, 619 N.W.2d 399, 401 (Iowa 2000). The court considered the circumstances of Lenoir’s crime in addition to his criminal history and, in particular, the fact Lenoir was afforded a furlough opportunity, which he abused by absconding for six months. The court was also privy to mitigating circumstances, which were discussed by Lenoir and his attorney, but the court had no obligation “to specifically acknowledge each claim of mitigation.” See State v. Boltz, 542 N.W.2d 9, 11 (Iowa Ct. App. 1995). 3 Having concluded the district court did not abuse its discretion in sentencing Lenoir, we affirm his sentence for being absent from custody. AFFIRMED.

01-03-2023

10-14-2015

https://www.courtlistener.com/api/rest/v3/opinions/3062370/

IN THE COURT OF APPEALS OF IOWA No. 14-1569 Filed October 14, 2015 SASCHA NATIKA STALEY, Plaintiff-Appellant, vs. TYLAND ANTONIO SIMMONS, Defendant-Appellee. ________________________________________________________________ Appeal from the Iowa District Court for Dallas County, Paul R. Huscher, Judge. Sascha Staley appeals the district court’s denial of her petition to modify an Indiana court’s order regarding custody, support, and visitation pertaining to her son and the child’s father, Tyland Simmons. AFFIRMED. Felicia M. Bertin Rocha of Bertin Rocha Law Firm, Urbandale, for appellant. Tyland Antonio Simmons, Fort Wayne, Indiana, appellee. Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ. 2 POTTERFIELD, Judge. Sascha Staley appeals the district court’s denial of her petition to modify an Indiana court’s order regarding custody, support, and visitation pertaining to her son and the child’s father, Tyland Simmons. I. Factual and Procedural Background Staley began a relationship with Simmons and became pregnant with his child in Indiana. She moved to her native Alaska, and the child was born in Alaska in 2003. The couple reconciled, and Staley moved back to Indiana with the child. Soon Staley left Simmons again; she and the child moved to Iowa. Staley and Simmons managed visitation without court intervention. In September of 2006, Simmons asked for visitation with the child for two weeks. He absconded with the child at that time. The child was returned to Staley in Iowa in December of 2006. Simmons had initiated legal proceedings in Indiana to obtain custody of the child. Staley appeared before the Indiana court pro se. On May 30, 2007, the Indiana court ordered joint legal custody and awarded physical care to Staley. It ordered Simmons to pay twelve dollars per week in child support. It further ordered visitation pursuant to the parties’ agreement as described in handwritten notes on the guardian ad litem’s trial exhibits.1 In October 2007, Simmons moved to California, where he coached high school basketball and started an athletic apparel company. He did not exercise 1 The Indiana court also “direct[ed] [Simmons’s] attorney to draft a proposed specific visitation/parenting time Order and circulate same to the parties for review and approval prior to submitting to the Court for review and entry.” According to the Indiana case summary prepared by the Indiana courts for the purposes of this Iowa litigation, no such order was ever presented to the Indiana court by Simmons’s counsel. 3 any visitation with the child until 2010. In 2010, Simmons visited Staley and the child in Iowa. He next had visitation with the child in the summer of 2012. Simmons asked for visitation in Indiana and Georgia, to which Staley agreed. Simmons instead took the child to St. Louis for most of the visitation period. In the summer of 2013, Simmons again asked for visitation in Indiana and Georgia. He took the child to South Carolina instead. Throughout this period, Simmons refused to provide Staley with his addresses or other contact information in California, St. Louis, or South Carolina. Staley filed a petition in Dallas County district court to modify the child support, legal custody, and visitation provisions of the Indiana court’s 2007 order. She struggled to personally serve Simmons—Simmons went so far as to lie to a process server about his identity. She eventually succeeded in serving him at a basketball game in Indiana. Simmons then initiated legal proceedings in Indiana. Following a court conference between the Indiana and Iowa courts, Indiana relinquished jurisdiction and Iowa assumed jurisdiction under the Uniform Child- Custody Jurisdiction and Enforcement Act. See Iowa Code ch. 598B (2013). The Iowa court ordered Simmons to comply with discovery requests and to pay child support. Simmons failed to do so. Staley claimed she was unable to initiate contempt proceedings because she could not locate Simmons to serve him the necessary documentation. Simmons participated in a pre-trial hearing on the parties’ motions by telephone and requested leave to participate in the modification trial telephonically. The district court denied the request. Trial was held on August 21, 2014. Simmons failed to appear, and no attorney appeared on his behalf. The district court held him in default. Staley 4 presented her case with documentary exhibits and her testimony. The district court admitted all Staley’s evidence but concluded she had failed to satisfy her burden of proof of a material change in circumstances on her modification requests. The court denied all three of Staley’s claims. Staley now appeals.2 II. Standard of Review Actions for modification of child support, legal custody, and visitation orders lie in equity; we review de novo.3 See In re Marriage of McKenzie, 709 N.W.2d 528, 531 (Iowa 2006); Nicolou v. Clements, 615 N.W.2d 905, 906 (Iowa Ct. App. 1994). “We examine the entire record and decide anew the legal and factual issues properly presented and preserved for our review.” In re Marriage of Wade, 780 N.W.2d 563, 565–66 (Iowa Ct. App. 2010). We give weight to but are not bound by the district court’s findings of fact, and we will only disturb the district court’s ruling if it has failed to do equity. See In re Marriage of Mihm, 842 N.W.2d 378, 381 (Iowa 2014). 2 Simmons has not filed a responsive brief or otherwise participated in this appeal. 3 Staley asserts we should review for correction of errors at law and an abuse of discretion. She misapprehends the district court’s ruling. She claims the district court moved sua sponte to dismiss her petition. She then relies on our rules and cases regarding motions to dismiss to support her conclusion that we now review for errors at law. See McGill v. Fish, 790 N.W.2d 113, 116 (Iowa 2010); Turner v. Iowa State Bank & Trust Co., 743 N.W.2d 1, 3 (Iowa 2007) (citing Iowa R. Civ. P. 1.421(1)(f)). However, the district court clearly ruled on the merits of Staley’s petition for modification, concluding she “failed to prove that there has been a substantial and material change in circumstances . . . .” The court’s dismissal of the petition is predicated upon its substantive denial of the claims. We therefore review de novo. We further reject Staley’s claims that the district court’s dismissal was an error of law or implicates res judicata principles; both of these claims are based upon her mischaracterization of the district court’s ruling as a sua sponte dismissal. 5 III. Discussion Staley appeals the district court’s denial of her petition to modify (1) the Indiana court’s child support order, (2) its award of joint legal custody, and (3) its visitation order. A. Child Support To justify the modification of Indiana’s child support order, Staley must prove by a preponderance of the evidence a substantial change in Simmons’s financial circumstances since that order. See id. at 381–82; see also Iowa Code § 598.21C(1) (delineating the considerations used to determine whether a substantial change in circumstances has occurred). Staley argues there has been a significant change in Simmons’s “employment, earning capacity, income, or resources.” See Iowa Code § 598.21C(1)(a). At the time of the initial child support order in May 2007, Simmons asserted he was unemployed, and the Indiana court ordered Simmons to pay twelve dollars per week. Simmons claimed at the pre-trial hearing on the parties’ motions in 2014 that he was unemployed.4 Staley contests his claim. She presented to the district court evidence obtained from internet web sites showing Simmons had been serving as an assistant basketball coach in a California high 4 Though Simmons did not appear at trial, he appeared telephonically for a pre-trial hearing on the parties’ motions, at which he testified: The Court: Are you employed, sir? Simmons: No, sir. The Court: And how are you supporting yourself if you are not employed? Simmons: My parents actually are—actually paying for all the bills because [I am staying in] their house. They are helping me with food. I’m borrowing money. 6 school for at least five years. She also presented evidence Simmons owned an athletic apparel company, iBall Clothing Company. Staley argues the district court should have presumed Simmons earns $161,000 annually. However, she arrives at the $161,000 figure purely by speculation. She estimates Simmons earns $61,000 per year as an assistant high school basketball coach because she claims a Junior Varsity Head Coach at the same school earns $62,700 per year with five years of experience.5 There was no evidence presented to suggest an assistant coach like Simmons earns income approaching that of a head coach or even to suggest the assistant coach position is a paid position. She estimates Simmons’s role in iBall Clothing Company earns him $100,000 per year. This figure is assigned arbitrarily, allegedly arising from circumstantial information about the company’s success. Simmons, on the other hand, has claimed the company is failing and earns him no income.6 Staley’s $161,000 estimate is not supported by any evidence in the record. We agree with the district court: Staley has not shown a substantial change in Simmons income to support modification of the Indiana court’s child support order. We acknowledge Staley’s claim that Simmons was uncooperative with discovery and she “used the best evidence available to her.” While she has presented some evidence to suggest the possibility that Simmons’s actual 5 Staley’s calculation of the Junior Varsity Head Coach salary is also suspect. Staley offered a pay scale into evidence that seemingly shows the Junior Varsity Head Coach is paid $4180. Staley assumes but does not prove that the $4180 figure is paid weekly throughout the season rather than as a one-time stipend. 6 In his answers to Staley’s interrogatories, Simmons stated, “iBall Clothing Company is closing down due to lack of accounts, and debt from taxes.” 7 income or earning capacity has improved since 2007, the suggestion of a possibility cannot satisfy Staley’s burden to prove a substantial change by a preponderance of the evidence.7 We affirm the denial of modification of child support. B. Legal Custody To modify the custody provisions of the Indiana court order, Staley must “establish by a preponderance of the evidence that conditions since the decree was entered have so materially and substantially changed that the child[]’s best interests make it expedient to make the requested change.” In re Marriage of Winnike, 497 N.W.2d 170, 173 (Iowa Ct. App. 1992) (citing In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983)). We strongly favor joint legal custody, and we deviate from that preference only under “the most compelling circumstances.” Id. Once joint custody is set, “it should be disturbed for only the most cogent reasons.” Frederici, 338 N.W.2d at 158. A change in circumstances supporting modification must not have been within the contemplation of the Indiana court at the time of its order, and the change must be more or less permanent and relate to the child’s well-being. See In re Marriage of Walton, 577 N.W.2d 869, 870 (Iowa Ct. App. 1998). 7 Staley asserts the district court abused its discretion when it did not impute $161,000 as Simmons’s income because he was in default. A court may elect to impute income in determining an equitable support award. See, e.g., In re Marriage of Swan, 526 N.W.2d 320, 323–24 (Iowa 1995); In re Marriage of Bennett, No. 02-2073, 2004 WL 370245, at *3 (Iowa Ct. App. Feb. 27, 2004). However, we find no support in our case law for the proposition that a court should impute income to one party based on speculative figures alleged—but not proved—by the adverse party for the purpose of establishing a substantial change in circumstances. The district court did not abuse its discretion in declining to do so. 8 Staley first relies on past incidents of domestic violence and on Simmons’s abduction of the child in 2006. These incidents pre-date the Indiana court order and were therefore in that court’s contemplation at the time joint legal custody was fixed. Staley goes on to claim Simmons remains emotionally and verbally abusive toward her at the present time. She also claims he smokes marijuana “on a daily basis.” She presented no evidence other than her conclusory testimony to support these claims. Staley’s arguments before the district court and before this court on appeal focus primarily on which parent should have sole legal custody. She discusses at length the principles we consider in fixing custody. See In re Marriage of Winter, 223 N.W.2d 165, 166–67 (Iowa 1974). However, she fails to recognize that Winter concerns an initial custody determination rather than a modification.8 Id. Her arguments conflate Iowa courts’ duty to determine whether joint legal custody is in the best interests of the child in an initial custody determination with their duty to determine whether a material and substantial change in circumstance permits modification of a previous order. Staley impugns Simmons’s behavior and lifestyle, but she has not shown in what way they are different than they were at the time of the 2007 order. We agree with the district court that Staley has not shown a material and substantial change in circumstances by a preponderance of the evidence such that the order for joint legal custody should be modified to sole custody. 8 Insofar as Staley asserts the district court’s failure to consider Winter was legal error or an abuse of discretion, we reject her claim. Winter does not consider whether a material and substantial change in circumstances to support modification has occurred and is therefore inapposite to the district court’s basis for its decision. 9 C. Visitation “The burden upon the petitioner in a modification of visitation rights differs from the burden upon him or her in a modification of custody.” Nicolou, 516 N.W.2d at 906. A “much less extensive change of circumstances need be shown.” Id. (citing Donovan v. Donovan, 212 N.W.2d 451, 453 (Iowa 1973)). Staley must show merely a change in circumstances—not a substantial change in circumstances—to support modification of visitation rights. Id. (citing In re Marriage of Jerome, 378 N.W.2d 302, 305 (Iowa Ct. App. 1985)). The district court denied Staley’s request to modify visitation. Following trial, the court ruled orally: “This court cannot determine what visitation specifically was established in this case, other than it is apparently a visitation pursuant to the Indiana parenting guidelines. Accordingly, this court cannot determine whether or not it is appropriate to modify that visitation agreement.” 9 Its oral ruling did not consider whether a change in circumstances occurred. However, it memorialized its rulings in an order filed on August 21, 2014. That order states, “The court finds that the Petitioner failed to prove that there has been a substantial and material change in circumstances since the entry of the prior decree which would warrant a modification of custody, visitation or support.” Here the district court applies the incorrect standard for modification of visitation. 9 The district court’s reference to the Indiana parenting guidelines indicate the court considered the Indiana court’s temporary visitation orders—which do refer to the Indiana parenting guidelines—but not the Indiana court’s final May 30, 2007 order—which orders visitation pursuant to the parties’ agreement and without reference to the Indiana parenting guidelines. However, the court correctly noted there was no evidence of the specific terms of the previous visitation schedule. 10 On our de novo review, we find Staley has satisfied her burden to show a change in circumstances sufficient to warrant a modification of the visitation provisions of the Indiana court’s order. The record shows that Simmons moved to California in October 2007. Though Simmons travelled between California and Indiana between 2007 and 2014, Staley provided evidence showing he continued to coach high school basketball in California during the 2013 and 2014 school year. She provided print-outs of Simmons’s social media activity in August and September of 2013 in which Simmons tagged himself in California. She also provided print-outs of the high school’s website from August of 2014 with Simmons’s assistant coach profile, which states he is currently in his fifth year as an assistant coach. Simmons provided an Indiana address during discovery and claimed in a pre-trial hearing that he had moved to that address in the fall of 2013, but evidence of his status as a coach and presence in California during the same period belies his claim. Simmons’s move to California is a change in circumstances sufficient to modify visitation. See Frederici, 338 N.W.2d at 159; In re Marriage of Lower, 269 N.W.2d 822, 826–27 (Iowa 1978); In re Marriage of Thielges, 623 N.W.2d 232, 238 (Iowa Ct. App. 2000); see also In re Marriage of Yazigi & Nahra, No. 13-1553, 2015 WL 1046129, at *2 (Iowa Ct. App. Mar. 11, 2015). However, a parent seeking modification of a visitation order bears an additional burden to prove “that the requested change in visitation is in the best interests of the [child].” In re Marriage of Salmon, 519 N.W.2d 94, 95–96 (Iowa Ct. App. 1994). We find Staley has failed to satisfy this burden. Though she 11 offered the Indiana court’s previous order into evidence, the order incorporates by reference the parties’ agreement and the handwritten notes of the guardian ad litem. The order contemplates a permanent visitation order to be drafted by Simmons’s counsel, reviewed and approved by both parties, and entered by the court at later date. In the current proceedings, Staley failed to offer evidence establishing the terms of the parties’ agreed upon visitation schedule, as they are not apparent from the record. The guardian ad litem’s handwritten notes only apply to the 2007–08 school year. Staley failed to address the status of the permanent visitation order contemplated by the Indiana court. Additionally, Staley failed to provide the district court with a proposed visitation order in support of her petition to modify. She merely requested “reasonable supervised visitation.” Between Staley’s failure to show the actual terms of the visitation order she wishes to modify and her failure to propose actual terms for the requested modification, we are unable to determine whether or what modification may be in the child’s best interests. She has therefore failed to satisfy her burden of proof, and the district court properly denied her request to modify visitation. See id. IV. Conclusion As to child support and legal custody, Staley has failed to show a substantial change in circumstances necessitating modification of the Indiana court order. As to Staley’s request to modify the visitation provisions of that order, we find she has shown a change in circumstances that supports such a 12 modification. However, we find she has failed to prove modification is in the child’s best interests. We affirm the district court. AFFIRMED.

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10-14-2015

https://www.courtlistener.com/api/rest/v3/opinions/2991442/

Order filed September 30, 2011 In The Ifinm'teenth Chart of Appeals NO. 14-10-00441~CR SIR JOSHTON STA VOHN MARTIN, Appellant V. THE STATE OF TEXAS, Appellee 7 On Appeal from the 185th District Court Harris County, Texas Trial Court Cause No. 1212863 m ORDER This court has determined, pursuant to Texas Rule of Appellate Procedure 34.5(f) and 34.6(g)(2), that it must inspect the original of State's Exhibits 16 and 17. The clerk of the 185th District Court is directed to deliver to the Clerk of this court the original of State's Exhibits 16 and 17, on or before October 10, 2011. The Clerk of this court is directed to receive, maintain, and keep safe this original exhibit; to deliver it to the justices of this court for their inspection; and, upon completion of inspection, to return the original of State's Exhibits l6 and 17, to the clerk of the 185th District Court. PER CURIAM

01-03-2023

09-23-2015

https://www.courtlistener.com/api/rest/v3/opinions/3062379/

IN THE COURT OF APPEALS OF IOWA No. 14-1512 Filed October 14, 2015 IN THE MATTER OF D.B., ALLEGED TO BE SERIOUSLY MENTALLY IMPAIRED, D.B., Respondent-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Des Moines County, Cynthia J. Danielson, Judge. D.B. appeals the district court’s order involuntarily committing him to a treatment facility following its finding D.B. suffered serious mental impairment. AFFIRMED. William C. Glass, Keosauqua, for appellant. Thomas J. Miller, Attorney General, Gretchen Witte Kraemer, Assistant Attorney General, and Amy K. Beavers, County Attorney, for appellee State. Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ. 2 POTTERFIELD, Judge. D.B. appeals the district court’s order involuntarily committing him to a treatment facility following its finding D.B. suffered serious mental impairment. I. Factual and Procedural Background D.B. was found to be seriously mentally impaired on September 20, 2011.1 He was diagnosed as paranoid schizophrenic. He was committed to inpatient treatment on the day of his adjudication and again on several occasions when he failed to comply with his outpatient treatment requirements. On August 18, 2014, D.B.’s social worker and doctor filed a report with the Des Moines County Clerk of Court pursuant to Iowa Code section 229.15(2) (2013) requesting D.B.’s return to inpatient treatment. The letter stated: [D.B.] has a chronic and persistent mental illness. His condition appears to be deteriorating. He has recently begun [to] act more on apparently delusional beliefs; according to his mother, he believes people are breaking into his home and poisoning his food; she says he is doing things like installing alarms, video cameras at his home, and he was recently arrested for public nuisance charges involving this kind of behavior. [D.B.] has not been able to abide by a behavioral contract. He reported to Sgt. Zahn, Burlington Police: “I’m afraid I’ll snap.” Additionally, his mother says he recently hit her and broke her glasses. [D.B.] did not keep his last [two] out[patient] appointments. He is not responding to our efforts to communicate w[ith] him. [D.B.] does not have the insight and/or awareness re[garding] his illness and for all of these reasons, we feel he is a potential danger to himself and/or others at this time. The same day, the district court issued an order for immediate custody, for evaluation, and for hearing. It scheduled the hearing on the matter to take place 1 D.B. appealed the adjudication, and this court affirmed. See In re D.B., No. 11-1836, 2013 WL 2145767, at *2–3 (Iowa Ct. App. May 15, 2013). 3 on August 26, 2014. D.B. was taken into immediate custody and admitted to University of Iowa Hospitals and Clinics (UIHC). On August 26, D.B. appeared for the hearing with his appointed counsel, Alan Waples. D.B. interjected before Waples was able to address the court and demanded Waples not be permitted to represent him. The district court asked D.B. if he was requesting a continuance in order to find new counsel. D.B. did so request, and a continuance was granted until September 9, 2014. Waples was to remain D.B.’s appointed counsel until new counsel filed an appearance. On September 8, D.B. refused to be transported for the hearing the next morning. He instead appeared by telephone on September 9. He had not retained a new attorney.2 As a result, Waples appeared at the hearing. Once again, D.B. interjected before Waples could address the court. He adamantly insisted Waples not be permitted to advocate on his behalf. He accused Waples of “fraud” and of being involved in a “scandal,” affecting D.B.’s treatment options. The hearing proceeded with D.B. conducting all cross examination and presenting his own testimony and the direct examination of his witness. The transcript of the hearing shows Waples was not able to make even a single statement on the record without interruption and objection by D.B. A doctor from UIHC testified at the hearing. He explained D.B. had been diagnosed with paranoid schizophrenia, though an unspecified psychotic disorder may have been a more appropriate diagnosis. He testified D.B. had been refusing medication while at UIHC, had become more tangential, and had 2 D.B. claimed he had found an attorney to take his case. However, he stated he had not paid the attorney’s retainer. No attorney had filed an appearance with the court. 4 displayed paranoid delusions. He stated he believed “that if [D.B.] were to be released or provided no treatment at this time that he would be a danger to himself or others.” Following the doctor’s testimony the court accepted into evidence a report written by the doctor that described D.B. as “violent” and stated, “[D.B.] has had several problems with his family and the police due to his psychosis and personality vulnerabilities. . . . [He] has assaulted others in the past including medical personnel and has a long history of arrests and legal action.” The report notes three convictions for disorderly conduct since 2009. D.B. testified on his own behalf. He claimed the medication his doctors wished to administer was poison. He attempted to call two witnesses, both fellow patients at UIHC. One of those witnesses testified. The content of the witness’s testimony established he had never seen D.B. yell at, disobey, or act rudely towards the UIHC staff. The other witness was not available during D.B.’s presentation of evidence, and the hearing concluded without that witness’s testimony. Following the hearing, the court ordered D.B.’s placement with UIHC remain in force and further ordered “a complete psychiatric evaluation and appropriate treatment.” D.B. appeals,3 asking this court to find “there was insufficient evidence to support his continued hospitalization” and his “trial counsel was ineffective” for 3 D.B.’s request for relief asks this court to “release him from inpatient hospitalization.” D.B. has already been released by the district court’s order dated June 25, 2015. We nevertheless decline to dismiss the appeal as moot. Our supreme court has held “a party who has been adjudicated seriously mentally impaired and involuntarily committed 5 failing to call his second witness and for failing to object to the untimeliness of the August 26, 2014 hearing.4 II. Standard of Review “We review challenges to the sufficiency of the evidence in involuntary commitment proceedings for errors at law.” B.B., 826 N.W.2d at 428. “The district court’s findings of fact are binding upon this court if supported by substantial evidence.” In re B.T.G., 784 N.W.2d 792, 796 (Iowa Ct. App. 2010). “Evidence is substantial if a reasonable trier of fact could conclude the findings were established by clear and convincing evidence.” Id. Clear and convincing evidence “means that there must be no serious or substantial doubt about the correctness of a particular conclusion drawn from the evidence.” B.B., 826 N.W.2d at 428. We review ineffective-assistance-of-counsel claims de novo. State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012). III. Discussion D.B. first claims the district court’s order was not supported by substantial evidence. The district court’s order was proper only if the court “[found] by clear and convincing evidence that the respondent has a serious mental impairment.” is presumed to suffer collateral consequences justifying appellate review” even if he has already been released—an exception to our mootness doctrine. See In re B.B., 826 N.W.2d 425, 429–30 (Iowa 2013) (noting one such collateral consequence is the “potential to use one’s involuntary commitment as evidence in future proceedings”). 4 The district court ordered immediate custody as provided by Iowa Code section 229.11, which requires “[a] hospitalization hearing shall be held no more than five days after the date of the order, except that if the fifth day after the date of the order is a Saturday, Sunday, or a holiday, the hearing may be held on the next succeeding business day.” The immediate custody order was entered on Monday, August 18, 2014. Under section 229.11, the hospitalization hearing could occur no later than Monday, August 25. However, the district court first scheduled the hearing for Tuesday, August 26. 6 Iowa Code § 229.13(1). The district court relied upon the statutory definition of “serious mental impairment,” which: describes the condition of a person with mental illness[5] and because of that illness lacks sufficient judgment to make responsible decisions with respect to the person’s hospitalization or treatment, and who because of that illness . . . [i]s likely to physically injure the person’s self or others if allowed to remain at liberty without treatment. Id. § 229.1(17). D.B. first challenges the district court’s finding that he “lacks judgment to make a responsible decision regarding his hospitalization or treatment.” We find there is substantial evidence to support the district court’s conclusion. The record shows both before and during his hospitalization, D.B. refused to follow his doctors’ treatment recommendations or medication regimen. In refusing his medication, D.B. was susceptible to the paranoid delusions observed by his two doctors. D.B. next challenges the district court’s finding that “he is likely to physically injure himself or others.” “The threat the patient poses to himself or other must be evidenced by a recent overt act, attempt or threat.” B.T.G., 784 N.W.2d at 798. We find there is substantial evidence in the record of such overt acts, supporting the district court’s finding. The August 18, 2014 report from D.B.’s doctor and social worker indicates his behavior deteriorated while he resided outside a treatment center and refused to follow his medication regimen. The report describes an incident in which D.B. allegedly struck his mother. The August 27, 2014 report admitted into evidence 5 D.B. does not contest the finding he suffers from a mental illness. His diagnosis is well-documented throughout the record. 7 at the September hearing notes D.B.’s “non-compliance with med[ication]” and that he is “violent.” The report asserts D.B. threatened that “these piece of shit doctors are gonna fucking pay for this.” It also refers to several criminal charges from recent years involving D.B.’s violent behavior. These facts taken together— particularly the evidence of the overt acts of D.B. striking his mother and threatening his doctors—constitute substantial evidence to support the district court’s finding, contrary to D.B.’s assertion on appeal that “no evidence in the record [shows] that he was a danger to himself or others.” The district court’s findings of fact are supported by substantial evidence, and we therefore affirm the district court’s order. D.B. next claims Waples rendered ineffective assistance.6 “To prevail on a claim of ineffective assistance of counsel, a claimant must . . . [show] (1) counsel failed to perform an essential duty; and (2) prejudice resulted.” State v. Clay, 824 N.W.2d 488, 495 (Iowa 2012) (citations and internal quotation marks omitted). Both elements must be shown by a preponderance of the evidence, and an ineffective-assistance claim may be disposed of if either element is lacking. See Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). “[W]e begin with the presumption that the attorney performed competently.” Id. “We scrutinize each claim in light of the totality of the circumstances.” Id. 6 It is not definitively established that the right to effective assistance of counsel is implicated in chapter 229 proceedings. See In re J.H., No. 12-1133, 2013 WL 1760183, at *2–3 (Iowa Ct. App. Apr. 24, 2013) (citing In re Detention of Crane, 704 N.W.2d 437, 438–39 n. 3 (Iowa 2005); In re Detention of Willis, 691 N.W.2d 726, 730 (Iowa 2005)). In consideration of our ultimate conclusion on the merits of D.B.’s ineffective-assistance claims, we “assume the right to effective assistance of counsel exists under chapter 229 for the purposes of this appeal.” See id. at *3. 8 With these principles in mind, we conclude D.B. cannot prevail on his claim Waples failed to perform an essential duty when D.B. himself prevented Waples from performing those duties. D.B. immediately and aggressively interjected his refusal to accept Waples’s representation at the beginning of the first scheduled hearing on August 26; counsel was cut off and given no opportunity to object to any procedural defect. The same is true for the September 9 hearing, when D.B. demanded the court not permit Waples to advocate on his behalf. D.B. therefore cannot “show [Waples’s] performance fell outside the normal range of competency.” State v. Dudley, 766 N.W.2d 606, 620 (Iowa 2009). No attorney—no matter how skillful—could have done more for D.B. than Waples because counsel was never given the opportunity to assert a claim or make an argument. The court, at D.B.’s insistence, conducted the hearings without giving counsel an opportunity to speak. D.B. has not overcome our presumption that Waples acted competently in light of the totality of the circumstances, and we therefore reject his ineffective- assistance claims. IV. Conclusion The record contains substantial evidence supporting the district court’s findings. D.B. has not established his appointed counsel was ineffective in light of the circumstances of this case. We affirm. AFFIRMED.

01-03-2023

10-14-2015

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800 A.2d 686 (2002) Carolyn A. DINGWALL, Appellant, v. DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY, Appellee. Nos. 99-CV-79, 99-CV-80. District of Columbia Court of Appeals. Argued November 6, 2001. Decided May 30, 2002. Carolyn A. Dingwall pro se. Jack W. Campbell IV, appointed counsel amicus curiae, with whom Robert H. Klonoff, Washington, DC, was on the brief, argued in support of appellant.[*] James C. McKay, Jr., Senior Assistant Corporation Counsel, with whom Robert R. Rigsby, Corporation Counsel, and Charles L. Reischel, Deputy Corporation Counsel, were on the brief, for appellee. Before WAGNER, Chief Judge, and TERRY, STEADMAN, SCHWELB, FARRELL, RUIZ, REID, GLICKMAN, and WASHINGTON, Associate Judges. ON PETITION FOR REHEARING EN BANC Opinion of the court PER CURIAM. On February 15, 2001, in Dingwall v. District of Columbia Water and Sewer Auth., 766 A.2d 974 (D.C.2001) (Dingwall I), a division of this court held, inter alia, that in an action for negligence against the District of Columbia Water and Sewer Authority (WASA), appellant Carolyn A. Dingwall was not required by D.C.Code § 12-309 (1995) to provide pre-suit notice to the Mayor. Id. at 977-79. The division further held that D.C.Code § 43-1672(b) *687 (1998), which provides in pertinent part, with exceptions not here applicable, that WASA shall be "subject to all laws applicable to offices, agencies, [and] departments of the District government," does not confer upon WASA the protections provided to the District by § 12-309. Id. at 979-80. On June 7, 2001, we granted WASA's petition for rehearing en banc with respect to the foregoing issues and vacated the decision in Dingwall I. Dingwall v. District of Columbia Water and Sewer Auth., 773 A.2d 423, 424 (D.C.2001) (per curiam) (Dingwall II). The en banc court now reinstates and adopts the division opinion in Dingwall I, with some brief elaboration as set forth below. WASA points out that § 12-309 is in derogation of the common law principle of sovereign immunity, that the statute must be construed narrowly against claimants, see, e.g., Gross v. District of Columbia, 734 A.2d 1077, 1081 (D.C.1999), and that § 12-309 therefore applies to suits against agencies that are "within" the District government, whether or not those agencies are sui juris. WASA also argues that the division's construction of the words "subject to" in § 43-1672(b) is too narrow. According to WASA, the two statutes, when considered together, confer upon WASA the right to pre-suit notice which is provided in tort actions against the District by § 12-309. We do not agree. Section 12-309 applies, by its terms, only to actions against the District of Columbia.[1] By contrast, the Federal Tort Claims Act (FTCA) contains a pre-suit notice provision for claims against a "Federal Agency." 28 U.S.C. § 2401(b). Congress has expressly defined "Federal Agency" to include "the executive departments, the judicial and legislative branches, independent establishments of the United States, and corporations acting as instrumentalities or agencies of the United States." Id. § 2671 (emphasis added). Congress could have written, but did not write, a similarly broad notice provision into § 12-309. According the language of § 43-1672(b) its common everyday meaning, we conclude, as did the division, that this statute simply requires WASA to comply with all of the laws, regulations, and other obligations applicable to other agencies and instrumentalities of the District of Columbia. In our view, the construction of § 43-1672(b) for which WASA contends goes far beyond the natural import of the words used by the legislature. Accord, United States ex rel Totten v. Bombardier Corp., 351 U.S.App.D.C. 30, ___, 286 F.3d 542, 547 (2002) ("an entity is subject to a particular legal regime when it is regulated by, or made answerable under, that regime")[2] (rev'g 139 F. Supp. 2d 50 (D.D.C.2001)); see also Downs v. Bd. of Trs. of the Univ. of the District of Columbia, 112 DAILY WASH. L. RPTR. 493, 498 (Super.Ct.D.C.1984) ("the extension of § 12-309 by judicial construction to suits not reached by its terms would, in the court's view, deprive plaintiffs of the right to reasonable notice [of what they must do to have their cases heard on the merits"]) (quoted in Dingwall I, 766 A.2d at 979). For the foregoing reasons, the judgment and opinion in Dingwall I are reinstated. The case is remanded to the trial court for *688 further proceedings, consistent with this opinion and with Dingwall I, with respect to Count II of the complaint. So ordered. FARRELL, Associate Judge, dissenting: I join Judge Ruiz's cogent opinion. I can see no reason, textual or otherwise, why the words "subject to" in § 34-2202.02(b) should not be read to mean simply that the same laws—"all laws"— "applicable to offices, agencies, departments, and instrumentalities of the District government" are likewise applicable to WASA. The court's narrow interpretation of those words as "impos[ing] duties ... and restrictions," but not "confer[ring] protections," comes with no explanation of why the Council would have wanted to deny WASA, part of the District government, the same protection of notice in responding to complaints that the District has long enjoyed in operating the water and sewer system. But even accepting the court's reading of those two words as incorporating only statutes that subject WASA to obligations, the majority does not come to grips with the line of decisions of this court construing § 12-309 as a relinquishment by the District of traditional governmental immunity, provided it has received the notice set forth in the statute. See, e.g., Campbell v. District of Columbia, 568 A.2d 1076, 1078 (D.C.1990) ("[B]ecause § 12-309 is in derogation of the common law concept of sovereign immunity, [its notice requirement] must be strictly construed ... against waiver of immunity."); Gwinn v. District of Columbia, 434 A.2d 1376, 1378 (D.C. 1981) ("Section 12-309 constitutes a departure from the common law concept of sovereign immunity."); Kelton v. District of Columbia, 413 A.2d 919, 920 (D.C.1980) (affirming dismissal "for failure to meet the six-month notice requirement in the District of Columbia's statutory waiver of sovereign immunity. D.C.Code ... § 12-309."). Although the question of what immunity the District in fact possesses is a complex one, see District of Columbia v. Owens-Corning Fiberglas Corp., 572 A.2d 394, 400, 403-04 (D.C.1989), the court has consistently held the notice requirements of § 12-309 to be part and parcel of the District's self-imposed liability for tortious acts of its agents. By operation of § 34-2202.02(b), WASA is subject to that same declaration of amenability to suit, but on the same condition of notice. RUIZ, Associate Judge, with whom FARRELL, Associate Judge, joins, dissenting: I cannot agree with the majority that the pre-suit notice requirements of § 12-309 do not apply to suits brought against WASA. The majority remarks that if the legislature had intended § 12-309 to apply to WASA, it "could readily have included a provision comparable to § 12-309 in the WASA statute." Dingwall v. District of Columbia, 766 A.2d 974, 979 (D.C.2001). In my opinion, the legislature did include such a provision in WASA's enabling legislation. The statute provides that, "Except as provided in §§ 34-2202.14 [the District's procurement system] and 34-2202.15 [the District's merit personnel system], [WASA] shall be subject to all laws applicable to offices, agencies, departments, and instrumentalities of the District government, and shall be subject to the provisions of the Home Rule Act...." D.C.Code § 34-2202.02(b) (2001), formerly D.C.Code § 43-1672(b) (1998). I think it is quite clear from the plain language of the statute that the Council intended all of the laws applicable to the District and its related subdivisions—including § 12-309— *689 to be applicable to WASA, with the exception of those specifically excluded. The majority summarily dismisses this notion and, isolating the phrase "subject to" from the rest of the statutory provision, concludes that the term implies that WASA is subordinate to the laws which apply to other instrumentalities of the District and thus only "imposes duties, obligations, and restrictions, but does not confer protections or privileges." Dingwall, 766 A.2d at 980. That conclusion is not compelled by the use of the term "subject to" and the majority decides the issue without considering the broader, and I think more applicable, definition of the phrase in the context of § 34-2202.02. According to the leading legal dictionary, "subject to" has a variety of meanings, including not only those that connote subservience, but also more generally, "governed or affected by." BLACK'S LAW DICTIONARY 1425 (6th ed.1990). That definition, in my opinion, is more sensible in the context of § 34-2202.02(b), which provides that WASA is to be "subject to all laws" (emphasis added), except for the two statutes specifically listed, those having to do with the procurement and merit personnel systems. The majority's crabbed reading of "subject to" not only fails to consider the complete phrase "subject to all laws," but also ignores the rest of the statutory provision, which puts WASA on an equal footing with "offices, agencies, departments and instrumentalities of the District government." The reference to those entities in the WASA statute indicates that the Council intended that WASA be governed by the same laws that apply to integral parts of the District government. Applied to this case, that means that lawsuits against WASA must first comply with the pre-suit notification requirements of § 12-309, just as any lawsuit against an office, agency, department or instrumentality of the District.[1] This common sense reading of the WASA statute conforms with the purpose of § 12-309 and the Council's stated reasons for creating WASA. As Judge Farrell points out in his dissenting opinion, the reasons behind the notice provision of § 12-309 apply as strongly to WASA's operation of the water and sewer system as they did to its predecessor. Section 12-309 serves three important purposes: 1) to quickly investigate injuries arising from municipal operations before evidence becomes lost or witnesses unavailable; 2) to correct hazardous or potentially hazardous conditions in public property; and 3) to settle meritorious claims without litigation. See, e.g., Gwinn v. District of Columbia, 434 A.2d 1376, 1378 (D.C.1981). WASA *690 performs an important public utility service which has traditionally been regarded as an indispensable governmental function. There is no evidence to suggest that the Council intended that the pre-suit notice requirements would not apply to WASA, when a dangerous condition related to the operation of the public sewer or water distribution system could, if left untended for a period of time, cause extensive damage to public or private property and perhaps even injury to unsuspecting citizens. The Council's stated reason for creating WASA—to fortify its financial viability—is aided by the protection § 12-309 provides for timely and orderly resolution of claims and correction of conditions that might lead to future claims. See Totten, 351 U.S.App. D.C. at ___, 286 F.3d at 549 (noting that to exempt Amtrak suppliers from claims under the False Claim Act would have "eliminated a weapon for protecting" the federal investment in Amtrak, "the very system that the legislation in question was aimed at protecting.") The majority also concludes, without the aid of persuasive authority, that any "protections and privileges" afforded to the District are to be withheld from WASA simply because it is a sui juris entity. The cases that the majority relies on for this proposition are not helpful to the analysis of whether the legislature intended that § 12-309 would be applicable to WASA by operation of § 34-2202.02(b). First, as the majority concedes, in Simmons v. District of Columbia Armory Bd., 656 A.2d 1155 (D.C.1995) (per curiam), we were not presented with the question whether § 12-309 would have applied to the District of Columbia Armory Board had it been a sui juris entity. See Dingwall, 766 A.2d at 978. Rather, because the Armory Board could not be sued, the law-suit had to be against the District, and thus had to comport with the pre-suit notice requirements of § 12-309. Nevertheless, even if the Armory Board had been sui juris and we had decided the issue in the manner in which the majority here believes that we would have, the case would still not have been on all fours with the instant action, unless the enabling legislation of the D.C. Armory Board also stated that the Board will be "subject to all laws applicable" to the other agencies and instrumentalities of the District government. This is precisely why the division's reliance on Downs v. Bd. of Trustees of the Univ. of the District of Columbia, 112 Daily Wash. L. Rptr. 493 (D.C.Super.Ct. Feb. 6, 1984), is similarly misplaced. The trial court in that case, unlike the situation here, was not confronted with language in the enabling legislation of the Board of Trustees which indicated that the laws of the District would apply to the Board despite its sui juris status. Nor does Braxton v. National Capital Hous. Auth., 396 A.2d 215 (D.C.1978), support the proposition that § 12-309 applies only to D.C. government entities that are not sui juris. In Braxton, the plaintiff filed suit against the National Capital Housing Authority and the District of Columbia. The suit against the Authority was dismissed because it was not amenable to suit, see id. at 217; the suit against the District was dismissed because plaintiff did not comply with § 12-309's pre-suit notice requirements. See id at 217-18. We never considered whether § 12-309 would or would not apply to a District entity based on whether it is sui juris. Therefore, I conclude that § 34-2202.02(b) imports the requirements of § 12-309 to suits against WASA. Finally, although I believe it is unnecessary to decide in this case whether § 12-309 applies to WASA directly, and not only by incorporation in D.C.Code § 34-2202.02(b), I find problematic the majority's analysis of that issue. The requirements *691 of § 12-309 apply to actions brought against the "District of Columbia." As evidenced by the statutory provisions that created WASA and the legislative history leading up to the creation of the Authority, the Council intended that, notwithstanding that WASA was to be a fiscally independent sui juris entity, it would nonetheless be an "independent authority of the District government" that would continue to perform the functions of its predecessor, D.C.Code § 34-2202.02(a) (2001), formerly D.C.Code § 43-1672(a) (1990), and remain governed by the laws normally applicable (with two specific exclusions) to entities that are integral parts of the District government.[2] In the absence of contrary indication, such a relationship strongly suggests that WASA, as its predecessor, should be considered part of the District of Columbia. That an action is styled against WASA because it is sui juris does not answer the question whether WASA is part of the District for purposes of § 12-309. Moreover, it is questionable whether the Council, even if it desired to do so, has the authority to create an entity that is truly separate from the District. Congress established the Council as it exists today and granted to it "the authority to create, abolish, or organize any office, agency, department, or instrumentality of the government of the District and to define the powers, duties, and responsibilities of any such office, agency, department or instrumentality." D.C.Code § 1-204.04(b) (2001), formerly D.C.Code § 1-227(b) (1999) (emphasis added); see District of Columbia Self-Government and Governmental Reorganization Act of 1973, Pub.L. 93-198, § 404, 87 Stat. 774, 787. This case presents an issue we have not previously had occasion to decide, and which the majority does not address: whether because WASA was created by the Council, not by Congress,[3] WASA must be an office, agency, department, or instrumentality of the District of Columbia, and thus, part of the District itself. Whether or not WASA is sui juris is not dispositive of the question.[4] Under the agency-creating powers Congress delegated to the Council, WASA could not be, as the majority contends, anything more than part "of the government of the District," and thus, suits against it are governed by § 12-309. *692-696 For the foregoing reasons, I would hold that lawsuits against WASA must comply with the pre-suit notification requirements of D.C.Code § 12-309. NOTES [*] The en banc court expresses its appreciation to Mr. Campbell, Mr. Klonoff, and the firm of Jones, Day, Reavis & Pogue for their able and highly professional assistance to the court in this matter. [1] At oral argument, in response to a question from the bench, counsel for WASA did not deny, and thus effectively acknowledged, that this action was properly brought against WASA and could not have been brought instead against the District. [2] The appellate court's reading of "subject to" in Totten appears directly contrary to the approach urged by WASA. [1] The majority attempts to bolster the argument that "subject to all laws applicable [to the District]" merely imputes to WASA the burdens and not the protections of District law by referencing the D.C. Circuit Court of Appeals' recent decision in United States ex rel Totten v. Bombardier Corp., 351 U.S.App. D.C. 30, 286 F.3d 542 (2002). That opinion, however, does not support the majority's position that "subject to" imposes only obligations. As the Circuit Court explained, "the words `subject to' leave room for interpretation." Id. at ___, 286 F.3d at 547. The statute at issue in Totten, Amtrak's governing statute, provides that Amtrak is not "subject to" the False Claims Act ("FCA"). Where a plaintiff brings a qui tam action under the FCA, not against Amtrak, but against a third party who has allegedly defrauded the federal grantee, common usage would suggest that it is the third party, and not the grantee, that is being made "subject to" the FCA. Id. at ___, 286 F.3d at 548. In the context in which it was used in the statute, the court held that "subject to" meant "regulated" or governed by directly, but did not include indirect effects on Amtrak resulting from its suppliers being subject to claims under the FCA. See id. at ___, 286 F.3d at 548. [2] The Council provided that the bill establishing the District of Columbia Water and Sewer Authority was intended to reorganize the Department of Public Works to create "a new District agency with funding completely separate from the General fund and with independent personnel and procurement systems." Water and Sewer Authority Establishment Act and Department of Public Works Reorganization Act of 1996, D.C. Act 11-201, § 501(g)(3), 43 D.C.Reg. 548, 571 (emphasis added). [3] I note that the University of the District of Columbia and its Board of Trustees, which the trial court determined not to be subject to § 12-309 in Downs, was created by Congress, not the Council. See District of Columbia Public Postsecondary Education Reorganization Act, Pub.L. 93-471, § 201, 88 Stat. 1423, 1424 (1974). [4] In the division opinion adopted by the majority it is argued that WASA's statutory authorization to enter into contracts with the District of Columbia "is inconsistent with the notion that WASA is indistinguishable from the District" because "an entity does not contract with itself." Dingwall, 766 A.2d at 977. However, in Simmons, on which the division relied in part for holding that sui juris entities are not entitled to pre-suit notice, the District of Columbia Armory Board was held to be a "body within the District of Columbia" because it was not sui juris, despite the fact that at the time it too had the statutory authority to contract with the District. See D.C.Code § 2-324(a)(2) (1994); Simmons, 656 A.2d at 1156 n. 1 (noting that "such contracts are really agreements between intra-governmental entities.").

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/3247577/

The bill is to avoid a conveyance of lands as fraudulent, and subject same to payment of indebtedness of the grantors. The bill avers that complainant, E. E. Minor, recovered a judgment against respondents Jeff Green and Cynthia Green for costs in an ejectment suit, $302.75; that execution was issued and returned "no property found"; that two days after the rendition of such judgment the defendants therein executed a deed of conveyance to their children, John Green and Maggie Davis, conveying the lands involved; that this constituted all the lands owned by the grantors; that they are insolvent; and further "charges and avers that the recited consideration in said deed hereinbefore referred to of One Hundred Dollars and other valuable consideration, was not in fact paid, and that there was no valuable and adequate consideration for the execution of said deed and conveyance of said land to the grantees in said deed, but that said deed was executed, as aforesaid, by said grantors therein and accepted by the grantees therein with the purpose and intent of hindering, delaying or defrauding your orator and for the purpose of preventing him from collecting the court costs which he had recovered in said ejectment suit, aforesaid." It is further averred that such fraudulent intent was known to, and participated in by, all parties to the deed. *Page 488 The bill is sufficient in its averments of actual fraud, the intent to hinder, delay, or defraud an existing judgment creditor participated in by all parties to the conveyance. Demurrers thereto were properly overruled. Code, § 7338; Cruise v. Sorrell, 181 Ala. 237, 61 So. 894; Douglass Cotton Oil Co. v. Ala. Machinery Supply Co., 205 Ala. 51, 87 So. 342; Cook v. Clark, Davis Co., 212 Ala. 257, 102 So. 213; Cooke v. Fenner Beane, 214 Ala. 558, 108 So. 370; Harrison v. American Agricultural Chemical Co., 220 Ala. 695, 127 So. 513. Since our statutes award a judgment for costs, and, if for plaintiff, subject him to an execution for costs accruing at his instance upon return of execution against defendant "no property found," we see no reason to question his status as a judgment creditor entitled to maintain a bill to set aside fraudulent conveyances for the collection of such demand. 15 C. J. 298. Assuming that a valid execution returned "no property found" was essential to complainant's right to relief, the failure of the clerk to itemize the costs due each witness in the cost bill accompanying the execution under Code, § 7796, did not render the execution void. The case of Maxwell v. Pounds, 116 Ala. 551, 23 So. 730, construed section 1883 of the Code of 1896, which declared that for failure to list the several items of costs "the execution is illegal, and shall not be levied." This section was revised by the Code Committee of 1907, by striking out the above-quoted words, and inserting in lieu thereof "the clerk or register issuing the execution forfeits all right to receive any costs in that case." Code 1907, § 4081; Code 1923, § 7796. This amendment of the statute, striking out the words declaring the execution illegal, etc., must be taken to work a change in that regard. Under the evidence, it clearly appears the deed in question was made at the instance of the son and grantee for the purpose of shielding the home of his father and mother against this judgment, and retaining for their use during life. The morals of such purpose is unimportant. The law allows no exemptions as against the torts of the owner, and costs partake of the nature of the action. The intent to shield the property from levy and sale is the very intent which stamps it as a conveyance to hinder, delay, or defraud, etc. Affirmed. ANDERSON, C. J., and GARDNER and FOSTER, JJ., concur.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/2959387/

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN JUDGMENT RENDERED MARCH 25, 2015 NO. 03-11-00462-CV Sanadco Inc., a Texas Corporation; Mahmoud A. Isba, a/k/a Mahmoud Ahmed Abuisba, a/k/a Mike Isba; Walid Abderrahman; Majic Investments, Inc.; Faisal Kahn; Isra Enterprises, Inc.; Hattab Al-Shudifat; Haifa Enterprises, Inc.; EID Corp.; Mohammed S. Al Hajeid; Majdi Rafe Okla Nsairat; and Omar Unlimited, Inc. Individually, Appellants v. The Office of the Comptroller of Public Accounts of the State of Texas; Glenn Hegar, Individually and in his Official Capacity as Comptroller of Public Accounts of the State of Texas; and Ken Paxton in his Official Capacity as Attorney General for the State of Texas, Appellees APPEAL FROM 98TH DISTRICT COURT OF TRAVIS COUNTY BEFORE JUSTICES PURYEAR, HENSON AND GOODWIN JUSTICE HENSON, NOT PARTICIPATING AFFIRMED ON MOTION FOR REHEARING -- OPINION BY JUSTICE PURYEAR This is an appeal from the interlocutory order signed by the trial court on July 8, 2011. The Court’s opinion and judgment dated September 26, 2013 are withdrawn, and this opinion and judgment are substituted in their place. Having reviewed the record and the parties’ arguments, the Court holds that there was no reversible error in the trial court’s interlocutory order. Therefore, the Court affirms the trial court’s interlocutory order. Appellants shall pay all costs relating to this appeal, both in this Court and the court below.

01-03-2023

09-17-2015

https://www.courtlistener.com/api/rest/v3/opinions/126245/

537 U.S. 1115 THOMPSONv.GALETKA, WARDEN, ET AL. No. 02-6927. Supreme Court of United States. January 13, 2003. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT. 2 C. A. 10th Cir. Certiorari denied. Reported below: 42 Fed. Appx. 397.

01-03-2023

04-28-2010

https://www.courtlistener.com/api/rest/v3/opinions/2792359/

State of New York Supreme Court, Appellate Division Third Judicial Department Decided and Entered: April 9, 2015 519363 ________________________________ In the Matter of HENRY HOBSON, Petitioner, v MEMORANDUM AND JUDGMENT ALBERT PRACK, as Director of Special Housing and Inmate Disciplinary Programs, et al., Respondents. ________________________________ Calendar Date: February 24, 2015 Before: Lahtinen, J.P., Garry, Devine and Clark, JJ. __________ Henry Hobson, Coxsackie, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondents. __________ Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Greene County) to review a determination of the Commissioner of Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules. Petitioner was a member of the Inmate Liaison Committee and, at a committee meeting, raised an issue regarding alleged inmate abuse by staff. After an inflammatory and unauthorized memorandum addressing the same issue was posted throughout the prison, petitioner was charged in a misbehavior report with engaging in actions detrimental to the facility and making an unauthorized address. At the conclusion of a tier III disciplinary hearing, petitioner was found guilty as charged.  -2- 519363 The determination was upheld on administrative appeal, and this CPLR article 78 proceeding ensued. Addressing petitioner's procedural contentions first, "the charges resulted from an ongoing investigation and involved numerous and varied contacts, [and] we find that the misbehavior report adequately apprised petitioner of the charges against him and provided sufficient information to allow him to prepare a defense" (Matter of Williams v Fischer, 114 AD3d 977, 977 [2014], lv denied 23 NY3d 903 [2014]; see Matter of Wilson v Fischer, 120 AD3d 1477, 1478 [2014]). The record further establishes that any defects in his prehearing assistance were remedied by the Hearing Officer (see Matter of LaMountain v Fischer, 120 AD3d 1508, 1509 [2014]; Matter of Scott v Prack, 117 AD3d 1300, 1300-1301 [2014]). Turning to the merits, the charge of engaging in behavior detrimental to the order of the facility is supported by substantial evidence in the record, including the misbehavior report, hearing testimony and confidential evidence (see Matter of Meachem v Fischer, 108 AD3d 973, 974 [2013]). Contrary to petitioner's contention, the Hearing Officer properly assessed the credibility and reliability of the confidential information (see Matter of Williams v Fischer, 18 NY3d 888, 890 [2012]; Matter of Grate v Annucci, 122 AD3d 1053, 1054 [2014]). Respondents correctly concede that the charge of making an unauthorized address is not supported by substantial evidence but, because petitioner has already served the penalty and no loss of good time was recommended, remittal for redetermination of the penalty is unnecessary (see Matter of Garcia v Garner, 122 AD3d 988, 989 [2014]). Lahtinen, J.P., Garry, Devine and Clark, JJ., concur.  -3- 519363 ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of making an unauthorized address; petition granted to that extent and the Commissioner of Corrections and Community Supervision is directed to expunge all references to this charge from petitioner's institutional record; and, as so modified, confirmed. ENTER: Robert D. Mayberger Clerk of the Court

01-03-2023

04-09-2015

https://www.courtlistener.com/api/rest/v3/opinions/2897322/

NO. 07-08-0054-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A MAY 16, 2008 ______________________________ DANTA MONTRAEL JOHNSON, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 320TH DISTRICT COURT OF POTTER COUNTY; NO. 54914-D; HONORABLE DON EMERSON, JUDGE _______________________________ Before CAMPBELL and HANCOCK and PIRTLE, JJ. ORDER OF ABATEMENT AND REMAND Appellant, Danta Montreal Johnson, has given notice of appeal from a conviction and sentence in the 320th District Court of Potter County, Texas (the trial court), for the offense of injury to a child.  The clerk of the court of appeals received and filed the trial court reporter's record on March 19, 2008.  The trial court clerk's record was due to be filed no later than May 6, 2008.  The clerk of this court is in receipt of a request for extension from the trial court clerk dated May 7, 2008, which advises appellant has not paid or made arrangements for payment of the record.  Additionally, the trial court clerk advised us that no attorney had been appointed on the appeal.  Accordingly, this appeal is abated and the cause is remanded to the trial court.   Tex. R. App. P. 37.3(a)(2).   Upon remand, the trial court shall immediately cause notice of a hearing to be given, if necessary, and, thereafter conduct a hearing to determine the following: 1. whether appellant desires to prosecute the appeal, and if so, 2. (a) whether appellant's trial counsel of record continues to represent him and what steps need to be taken to ensure a diligent pursuit of the appeal;  or (b) whether trial counsel for appellant has abandoned the appeal; 3. whether appellant has been deprived of a clerk's record because of ineffective assistance of counsel or for any other reason; 4. if appellant desires to prosecute this appeal, whether appellant is indigent and entitled to appointed counsel; If the trial court determines that appellant does want to continue the appeal and is indigent, then the trial court shall also take such measures as may be necessary to assure appellant effective assistance of counsel, including the appointment of new counsel if necessary.  The trial court should cause the clerk of this court to be furnished the name, address, and State Bar of Texas identification number of the newly-appointed or the newly-retained attorney.  Finally, the trial court shall execute findings of fact, conclusions of law, and such orders as the court may enter regarding the aforementioned issues and cause its findings and conclusions to be included in a supplemental clerk's record. A supplemental record of the hearing shall also be included in the appellate record.  Finally, the trial court shall file the supplemental clerk's record and the supplemental reporter's record with the Clerk of this Court by June 16, 2008. It is so ordered.                                         Per Curiam Do not publish.

01-03-2023

09-08-2015

https://www.courtlistener.com/api/rest/v3/opinions/3457287/

Appeal dismissed for want of jurisdiction on authority of Childers v. Ratliff, 164 Ky. 124, 175 S.W. 25; Hundley v. Baskett, 243 Ky. 383, 48 S.W.2d 537.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/1327939/

306 S.C. 289 (1991) 411 S.E.2d 439 Donna H. SMITH, personal representative of the estate of Thomas Wayne Smith, deceased, Appellant v. T.H. SNIPES & SONS, INC., Respondent. 23525 Supreme Court of South Carolina. Heard February 5, 1991. Decided December 9, 1991. Rehearing Denied January 7, 1992. *290 Desa A. Ballard, Terry E. Richardson, Jr., and Kenneth J. Wilson of Ness, Motley, Loadholt, Richardson & Poole, P.A., Barnwell, and Luther C. Elrod, III, Rock Hill, for appellant. Charles E. Carpenter, Jr., Deborah L. Harrison, and R. Davis Howser of Richardson, Plowden, Grier & Howser, Columbia, and Robert R. Carpenter and Beverly Carroll of Roddey, Carpenter & White, Rock Hill, for respondent. Heard Feb. 5, 1991. Decided Dec. 9, 1991. Reh. Den. Jan. 7, 1992. FINNEY, Justice: Appellant Donna H. Smith appeals the circuit court's findings and grant of summary judgment in favor of respondent T.H. Snipes & Sons, Inc. We affirm. Appellant's decedent, Thomas Wayne Smith (decedent), was a self-employed welder and sole proprietor of Independent Piping Contractors. Decedent was hired by respondent to repair a metal shearing machine used in respondent's business operation. During the course of repairing the machine, the decedent was fatally injured. The decedent had previously obtained workers' compensation coverage for himself pursuant to S.C. Code Ann. § 42-1-130 (1976). Decedent's beneficiaries elected to and did receive benefits under his coverage as provided under the South Carolina Workers' Compensation Act (the Act). Subsequently, appellant initiated this negligence action seeking actual and punitive damages as a result of decedent's death. Respondent moved for summary judgment. The circuit court granted summary judgment based upon its findings that the decedent was a statutory employee of respondent and subject matter jurisdiction rested exclusively with the South Carolina Workers' Compensation Commission. *291 On appeal appellant argues 1) that the circuit court erred in applying S.C. Code Ann. § 42-1-400 (1976), contending the Act intends a statutory employee to be an employee of a subcontractor and not the subcontractor himself; 2) that the circuit judge erred in failing to consider all prongs of the statutory employee test; and 3) that the prior payment of benefits under the Act by decedent's insurer does not serve as a bar to her cause of action in circuit court. Prior to ruling on respondent's motion for summary judgment, the circuit court held a full evidentiary hearing on the question of jurisdiction. The circuit court's conclusion contained in its amended order are as follows: 1. That the nature of the work being performed by decedent at the time of his accident was an integral part of respondent's operations, without which respondent's operation could not function; 2. That at the time of his fatal injury, decedent was engaged in work which was an essential part of the trade, business or occupation of the respondent; 3. That at the time of his death, the decedent was a statutory employee of the respondent and the exclusive remedy therefore is provided by the Act; and 4. That the circuit court lacks subject matter jurisdiction, which lies exclusively with the Commission. Summary judgment is appropriate when it is clear that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Standard Fire Insurance Co. v. Marine Contracting and Towing Co., 301 S.C. 418, 392 S.E. (2d) 460 (1990). We address first appellant's assertion that her decedent was not a statutory employee within the meaning of the Act. Section 42-1-400 provides that when an owner performs any work which is a part of his trade, business or occupation and contracts with a subcontractor for the performance by or under such subcontractor for the whole or any part of such work, the owner shall be liable to pay compensation for which he would have been liable under the Act if the workman had been immediately employed by the owner. We find nothing in the language of the statute which precludes classification of a subcontractor as a statutory employee. *292 With regard to appellant's argument that the trial court failed to consider all prongs of the statutory employee test, our Court has promulgated the following factors for consideration in determining the statutory employee issue for purposes of the Act. 1. Whether the activity is an important part of the trade or business; 2. Whether the activity is a necessary, essential and integral part of the business; and 3. Whether the identical activity in question has been performed by employees of the principal employer. Bailey v. Owen Elec. Steel Co. of S.C., 298 S.C. 36, 378 S.E. (2d) 63 (1989). The amended order of the trial court reflects consideration of the foregoing factors. Moreover, the evidence as to these considerations was the object of stipulations agreed upon prior to the evidentiary hearing. We conclude that this record supports the findings of the trial court in this regard. Finally, we address appellant's contention that this action is not barred by the prior payment of benefits pursuant to decedent's coverage under the Act. Section 42-1-540 provides that other rights and remedies accruing to an employee against his employer are excluded once such employee avails himself of benefits under the Act. See Cook v. Mack's Transfer & Storage, 291 S.C. 84, 352 S.E. (2d) 296 (Ct. App. 1986). Appellant concedes that dual compensation under the Act is prohibited. S.C. Code Ann. § 42-1-450 (1976). We conclude that a determination of entitlement, payment and acceptance of compensation under the Act precludes an action in circuit court seeking compensation for the identical injury, death or loss. Accordingly, we find that there is no genuine issue of material fact and that summary judgment is the appropriate remedy. For the foregoing reasons, this Court affirms the findings, conclusions and judgment of the circuit court. Affirmed. GREGORY, C.J., and HARWELL, CHANDLER and TOAL, JJ., concur.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2882879/

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-04-00115-CR ______________________________ JEREMY RAY BROWN, Appellant   V.   THE STATE OF TEXAS, Appellee                                                On Appeal from the 8th Judicial District Court Franklin County, Texas Trial Court No. 7683                                                   Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Justice Ross MEMORANDUM OPINION             Jeremy Ray Brown appeals from his conviction by a jury for aggravated sexual assault of a child. Brown was also convicted on two other counts of aggravated sexual assault of a child. The jury assessed seventeen years' imprisonment on each count. The convictions were appealed separately, but have been briefed together.             Since the briefs and arguments raised therein are identical in all three appeals, for the reasons stated in Brown v. State, cause number 06-04-00113-CR, we likewise resolve the issues in this appeal in favor of Brown.             We reverse the judgment and remand to the trial court for a new trial.                                                                              Donald R. Ross                                                                            Justice Date Submitted:      February 23, 2006 Date Decided:         March 29, 2006 Do Not Publish   pinion makes it clear that a mere statement in the order that the court heard the evidence is insufficient to show that an evidentiary hearing occurred; thus, we must apply the presumption that the pretrial hearing was nonevidentiary and that the court considered only the evidence filed with the clerk. The lack of a reporter's record is not a consideration in this situation. The second matter is the absence of findings of fact and conclusions of law. Davis complains because the court did not file findings of fact and conclusions of law despite his request. "Texas Rules of Civil Procedure 296 and 297 do not impose any duty on the trial court to file findings of fact and conclusions of law where there has been no trial, such as a special appearance that is subject to interlocutory appeal." Niehaus v. Cedar Bridge, Inc., 208 S.W.3d 575, 579 n.5 (Tex. App.--Austin 2006, no pet.) (quoting Bruno's, Inc. v. Arty Imps., Inc., 119 S.W.3d 893, 897 n.2 (Tex. App.--Dallas 2003, no pet.)); see Tex. R. App. P. 28.1. Thus, no intrinsic error has been shown by the trial court's failure to file findings and conclusions. Jurisdictional Requirements Stuckey alleges that, since he is a nonresident of Texas, the County Court at Law for Bowie County does not have jurisdiction. A claim of special appearance under Tex. R. Civ. P. 120a is the procedural method used to avoid the jurisdiction of Texas courts as authorized under the Texas long-arm statute. The statute allows Texas courts jurisdiction over nonresident defendants doing business in Texas. Tex. Civ. Prac. & Rem. Code Ann. § 17.042 (Vernon 1997). While the long-arm statute does enumerate certain examples of doing business, it does not provide an exclusive list. Id. ("In addition to other acts that may constitute doing business, a nonresident does business in this state if . . . ," then setting out three acts); see also BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002); Schlobohm v. Schapiro, 784 S.W.2d 355, 256-57 (Tex. 1990). The statute is construed as extending Texas courts' jurisdiction over nonresident defendants as far as the federal constitutional requirement of due process permits. Marchand, 83 S.W.3d at 795. For a Texas court to exercise personal jurisdiction over a nonresident, two conditions must be met: the Texas long-arm statute must authorize it, and it must be consistent with the due-process guarantees provided in our federal and state constitutions. Schlobohm, 784 S.W.2d at 356; Ennis v. Loiseau, 164 S.W.3d 698, 706 (Tex. App.--Austin 2005, no pet.). Under the Due Process Clause of the Fourteenth Amendment, jurisdiction is proper if a nonresident established "minimum contacts" with Texas and maintenance of the suit does not offend traditional notions of fair play and substantial justice. Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002). The fundamental purpose of the minimum-contacts analysis has been to protect the nonresident defendant from the unfair and unforeseen assertion of jurisdiction. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980). This requires a determination of whether the nonresident defendant has purposely availed itself of the privilege of conducting activities within the forum state to invoke the benefits and protection of its laws. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-75 (1985). The "purposeful availment" requirement guarantees that a nonresident defendant will not be compelled to defend a suit in a jurisdiction based solely on random, fortuitous, or attenuated contacts or the unilateral activity of another party or a third person. Id. at 475-76; see also Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 417 (1984); Nikolai v. State, 922 S.W.2d 229, 234 (Tex. App.--Fort Worth 1996, writ denied). Nonresident defendants must have fair warning that particular activities may subject them to a foreign sovereign's jurisdiction. Rudzewicz, 471 U.S. at 474-75. A nonresident defendant must therefore perform some overt act to subject himself or herself to the possibility of being compelled to defend a suit in a foreign court. Tuscano v. Osterberg, 82 S.W.3d 457, 466 (Tex. App.--El Paso 2002, no pet.). This "fair warning" requirement is satisfied if the defendant has "purposefully directed" his or her activities at residents of the forum and the litigation results from alleged injuries that "arise out of or relate to" those activities. Rudzewicz, 471 U.S. at 472; Tuscano, 82 S.W.3d at 466. Standards of Review Whether a trial court has personal jurisdiction over a defendant is a question of law. Marchand, 83 S.W.3d at 793. The plaintiff bears the initial burden of pleading sufficient allegations to bring a nonresident defendant within the provisions of the long-arm statute, while the defendant challenging a Texas court's personal jurisdiction over it must negate all jurisdictional bases. Id. "Personal jurisdiction exists if the nonresident defendant's minimum contacts give rise to either specific jurisdiction or general jurisdiction." Id. at 795. We may review the trial court's resolution of disputed fact issues for legal and factual sufficiency under the same standards of review that we apply in reviewing a jury verdict. TravelJungle v. Am. Airlines, Inc., No. 2-06-178-CV, 2006 WL 3627202 (Tex. App.--Fort Worth Dec. 14, 2006, no pet. h.); Michel v. Rocket Eng'g Corp., 45 S.W.3d 658, 668 (Tex. App.--Fort Worth 2001, no pet.). Personal Jurisdiction There are two variations within the bounds of personal jurisdiction. Personal jurisdiction exists if the nonresident defendant's minimum contacts give rise to either specific or general jurisdiction. Marchand, 83 S.W.3d at 795; Schexnayder v. Daniels, 187 S.W.3d 238, 243 (Tex. App.--Texarkana 2006, pet. dism'd w.o.j.). General jurisdiction exists when the defendant's contacts with Texas "are continuous and systematic so that the forum may exercise personal jurisdiction over the defendant even if the cause of action did not arise from or relate to activities conducted within the forum state." Marchand, 83 S.W.3d at 796. This is described as being a more demanding minimum-contacts analysis than specific jurisdiction. Coleman, 83 S.W.3d at 807. Thus, general jurisdiction allows a forum to exercise jurisdiction over a defendant even if the cause of action did not arise from or relate to a defendant's contacts with the forum. Id. at 806-07; Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 228 (Tex. 1991). Those contacts should be such as to justify categorizing the defendant as a resident of this State. Schexnayder, 187 S.W.3d at 243. Specific jurisdiction exists when the defendant's liability arises from or is related to an activity conducted within the forum. Marchand, 83 S.W.3d at 796 (citing Guardian Royal Exch., 815 S.W.2d at 228). For a court to exercise specific jurisdiction over a nonresident defendant, two requirements must be met: (1) the defendant's contacts with the forum must be purposeful; and (2) the cause of action must arise from or relate to those contacts. Coleman, 83 S.W.3d at 806. Specific jurisdiction exists when the defendant's alleged liability "arises from or is related to an activity conducted within the forum." Marchand, 83 S.W.3d at 796. In other words, the cause of action must arise from, or relate to, the defendant's purposeful contacts. Schexnayder, 187 S.W.3d at 243. The Evidence The pleadings agree on a number of points, and do not contest several others. Stuckey is not now--and never has been--a resident of Texas. His connection with Texas exists solely because of his appointment as executor of the estate of Emogene--and because of the actions which he undertook as executor. Those actions included applying for probate of the will, qualifying as independent executor, filing the required appraisement and list of claims, and collecting funds from bank accounts in Texas and moving the money to Georgia banks (from which some unknown portion of the funds was divided and presumably delivered to some of Emogene's beneficiaries). Texas Probate Code Section 78 disqualifies a nonresident from serving as an executor unless he or she appoints a resident agent to accept service of process in all actions or proceedings with respect to the estate. Tex. Prob. Code Ann. § 78 (Vernon 2003). Such appointment must be filed with the court. Stuckey originally retained local counsel to represent him and to act as that agent. (2) Stuckey acknowledges in his brief that he came to Texas six times during the course of the ongoing probate proceeding and that he mustered and moved the assets to Georgia. The action filed against him in the probate proceeding contended that he violated specific statutory requirements under Texas law and that his actions constituted breach of fiduciary duty, negligence, and conversion. In their original petition, the Sewells alleged Stuckey had appointed Bill Hannon of Atlanta, Texas, as his agent for service of process. The applicable statute requires such an appointment concerning "all actions or proceedings with respect to the estate." Tex. Prob. Code Ann. § 78(c). We do not have a full clerk's record of all proceedings, including the return of citation, but the record shows that, after the pleading was filed against Stuckey, faxed copies of such documents were transmitted between Hannon and Stuckey. A hearing was set by the Bowie County Court at Law for April 20, 2004, on the motion for an injunction, but on April 5, 2004, attorneys in Georgia acting on Stuckey's behalf removed the case to federal court where it remained for several months. Texas law requires the appointment of an agent for the very purpose of responding to matters relating to the estate which is being administered by the nonresident. Some courts have held that the designation of an agent for process is sufficient to grant consent to be sued in that jurisdiction and therefore confers personal jurisdiction on the courts of that state. See Sondergard v. Miles, Inc., 985 F.2d 1389, 1396 (8th Cir. 1993); Ocepek v. Corporate Transport, Inc., 950 F.2d 556 (8th Cir. 1991); Knowlton v. Allied Van Lines, Inc., 900 F.2d 1196, 1199-1200 (8th Cir. 1990). We acknowledge that other Texas courts of appeals have come to an opposite conclusion. See Conner v. ContiCarriers & Terminals, Inc., 944 S.W.2d 405, 417 (Tex. App.--Houston [14th Dist.] 1997, no writ); Juarez v. United Parcel Serv. de Mexico S.A. de C.V., 933 S.W.2d 281, 285 (Tex. App.--Corpus Christi 1996, no writ). Since this issue is not squarely before us, we will not address whether Stuckey's designation of an agent for service in Texas and the service of that agent in Texas alone is sufficient to confer jurisdiction in Texas courts. At the least, this is an important factor to consider when determining if the nonresident has sufficient contacts with the State of Texas to confer jurisdiction on Texas courts. The United States Supreme Court has reaffirmed that serving a nonresident in the state of the forum alone satisfies the due-process requirements. See Burnham v. Superior Court of Cal., 495 U.S. 604 (1990) (in-state service of process on nonresident is consistent with due process); Stallworth v. Stallworth, 201 S.W.3d 338 (Tex. App.--Dallas 2006, no pet.). Specific Jurisdiction The question is: Do Stuckey's actions constitute sufficient contacts to authorize specific jurisdiction in Texas courts? We conclude that it does. Stuckey petitioned the Texas court to be recognized as the independent executor of the estate and made several trips to Texas in carrying out those duties. By invoking the authority of the Texas court as executor of the estate, Stuckey took assets from institutions in Texas and distributed some of those assets. Additionally on his appointment, Stuckey named an agent in Texas to accept citation in accordance with Texas law. We believe these actions are sufficient to establish the required minimum contacts with Texas to authorize Texas to assert jurisdiction. In a similar situation, the Austin Court of Appeals found an out-of-state executor subject to personal jurisdiction in Texas because she took control of property within the State. Smith v. Lanier, 998 S.W.2d 324 (Tex. App.--Austin 1999, pet. denied). There is also authority that voluntarily filing a lawsuit in a jurisdiction is a purposeful availment of the jurisdiction's facilities and can subject a party to personal jurisdiction in another lawsuit when the lawsuits arise from the same general transaction. Primera Vista S.P.R. de R.L. v. Banca Serfin, S.A. Institucion de Banca Multiple Grupo Financiero Serfin, 974 S.W.2d 918, 926 (Tex. App.--El Paso 1998, no pet.). (3) All of the claims involved here are directly related to Stuckey's actions as executor of the estate of a resident of Texas. Thus, under either theory, specific jurisdiction exists, and Stuckey has made himself subject to personal jurisdiction within this State. General Jurisdiction In light of our determination that Stuckey is subject to the Texas court under the concept of specific jurisdiction for this action, we need not reach the question of whether the court would have general jurisdiction under these facts. Alternative Arguments Stuckey also argues that it is unfair to subject him to suit in Texas because of the "home court advantage." He argues that "the non-resident defendant almost always earns the contempt of the court and leaves plaintiff's counsel firmly in the drivers' seat - which is exactly what happen [sic] in this case." He argues this is shown most clearly by the court's findings that his special appearance was "groundless and brought in bad faith, brought for the purpose of harassment and delay and other improper purposes." Stuckey has seized on "death trap" language in a footnote in W & F Transp., Inc. v. Wilhelm, 208 S.W.3d 32, 41 (Tex. App.--Houston [14th Dist.] 2006, no pet.), declaring that the "Wilhelm Rule" explains the difficulties that a party faces in pursuing a special appearance under Texas procedural rules and justifies his or her failure to take any act to attempt to support his or her position. The footnote reads: This speculative possibility was implicitly rejected in Holten [168 S.W.3d 777]. A special appearance like that in Holten is fraught with procedural death traps, and counsel is much more likely to waive his client's jurisdictional challenge than is counsel likely to invite error during closing argument at the end of trial. Wilhelm, 208 S.W.3d at 41 n.8. We are unpersuaded by the footnote. The same court has also recently recognized that special appearance claims are not so easily waived as might be thought from an unqualified reading of the Wilhelm footnote. See Huynh v. Nguyen, 180 S.W.3d 608, 617 (Tex. App.--Houston [14th Dist.] 2005, no pet.). A finding of waiver has been reversed by the Texas Supreme Court recently in Exito Elecs. Co. v. Trejo, 142 S.W.3d 302, 308 (Tex. 2004). Similarly, waiver has been found not to exist in a number of other scenarios in which counsel took other action than pursuing the special appearance solo. See In re M.G.M., 163 S.W.3d 191, 201 (Tex. App.--Beaumont 2005, no pet.); Brittingham-Sada de Powers v. Ancillary Estate of Brittingham-McLean, 158 S.W.3d 518, 523 (Tex. App.--San Antonio 2004, no pet.). Although procedural requirements exist, they are not unreasonable. Further, although Stuckey states in his brief that the special appearance rule is per se unconstitutional because of the psychological bias against an out-of-state party as combined with "unduly strict requirements" and "procedural traps," he specifies no particular requirement that is overly strict, does not discuss the rule in any depth, and does not attempt to apply constitutional analysis to the application of the rule. (4) We thus decline to address those contentions. Stuckey argues he was terminally wronged because the County Court at Law did not promptly rule on his special appearance after he filed it. That is not entirely accurate. He filed a removal to federal court--of a state probate proceeding--to Georgia. The Georgia federal court, in due course, sent it to the Eastern District of Texas federal court, which in due course returned it to the original Bowie County Court at Law from which he had removed it. This resulted in seventeen months' delay, undoubtedly additional attorney's fees, and no progress toward a conclusion. Before the most recent proceeding, the estate has remained open for six years, with one individual, Emogene's husband, attempting to recover monies he believed were at least partially his. Rather than resolving the matter, the record suggests that other interests became central to the proceeding. Whether those interests and Stuckey's actions can be proven to be improper and actionable is a matter not before this Court in this appeal. At this point, we decide only whether Stuckey, by accepting the mantle of executor, submitted himself to the jurisdiction of Texas courts. We also note that jurisdiction and ultimate liability are two different considerations--it is possible for an entity to be subject to jurisdiction, yet not ultimately liable under other theories of law. See Lanier, 998 S.W.2d at 334. Fair Play and Substantial Justice Stuckey also argues that the constitutional requirements have been violated by the ruling. Even if Stuckey has the minimum contacts to authorize Texas courts to assert jurisdiction, we must also determine whether the assertion of such jurisdiction comports with fair play and substantial justice. Guardian Royal Exch., 815 S.W.2d at 232. We will consider the appropriate factors: (1) The burden on the defendant. We find the burden on Stuckey is slight. When the nonresident purposefully establishes the minimum contacts required, it is rare that the exercise of jurisdiction by the forum state would not comply with fair play and substantial justice. Id. at 231. Nor is distance alone ordinarily sufficient to defeat jurisdiction. Id. (2) The interests of the forum state in adjudicating the dispute. This dispute arises from a decedent's estate filed and administered in the State of Texas. The deceased was a resident of Texas, most of the property was located in Texas, and one of the beneficiaries is a charitable organization in Texas. The issues involve the application of Texas probate law. We believe it is generally preferable to allow the forum court to adjudicate its own laws. (3) The plaintiffs' interest in obtaining convenient and efficient relief. Undoubtedly the local Texas court would be more efficient for the plaintiffs, residents of Texas. The final two factors: (4) The interstate judicial system's interest in obtaining the most efficient resolution of controversies, and (5) The shared interests of the several states in furthering fundamental substantive social policies are not applicable in this case. This case is factually very similar to Lanier, 998 S.W.2d at 334. As in Lanier, Stuckey took advantage of the laws of the State of Texas to exercise control over the decedent's assets. He purposefully directed his activities toward numerous Texas residents and institutions, activities that resulted in the removal from the State of the property that is the basis of the dispute. Further, the property was clearly subject to the jurisdiction of the Texas probate court. Under these circumstances, and for the reasons previously set out in our discussion of specific jurisdiction, we conclude that the assertion of personal jurisdiction over Stuckey does not offend traditional notions of fair play and substantial justice. We, therefore, find that sufficient evidence exists in the record to support the exercise of personal jurisdiction over Stuckey, both in his individual capacity and as executor. Counterpoint--Frivolous Appeal By counterpoint, the Sewells contend the appeal is frivolous and request this Court to award attorney's fees and costs as damages. See Tex. R. App. P. 45. In deciding if an appeal is frivolous, this Court has previously held that the issue is whether the appellant had a reasonable expectation of reversal or whether he or she merely pursued the appeal in bad faith. An appellant's right of review will not be penalized unless there is a clear showing that he or she had no reasonable ground to believe that the judgment would be reversed. In re Marriage of Long, 946 S.W.2d 97, 99 (Tex. App.--Texarkana 1997, no writ) (citing Long Trusts v. Atl. Richfield Co., 893 S.W.2d 686, 689 (Tex. App.--Texarkana 1995, no writ)). Even if the argument on appeal fails, if it has a reasonable basis in law and constituted an informed, good-faith challenge to the trial court's judgment, it should not be considered as a frivolous appeal. Long, 946 S.W.2d at 99. After analyzing the facts of this appeal based on that standard, we deny the counterpoint. We affirm the order denying the special appearance. Jack Carter Justice Date Submitted: February 7, 2007 Date Decided: February 27, 2007 1. Because Emogene and Norris share a common last name, we will refer to each by his or her first name to avoid confusion. 2. We note that Stuckey (an attorney licensed in Georgia) retained, then fired, at least two Texas attorneys, and is now acting pro se. 3. See Zamarron v. Shinko Wire Co., 125 S.W.3d 132, 143 (Tex. App.--Houston [14th Dist.] 2003, pet. denied); Tuscano, 82 S.W.3d at 467. 4. See Tex. R. App. P. 38.1(h); Stephens v. Dolcefino, 126 S.W.3d 120, 130 (Tex. App.--Houston [1st Dist.] 2003), writ denied, 181 S.W.3d 741 (Tex. 2005).

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09-07-2015

https://www.courtlistener.com/api/rest/v3/opinions/2892552/

WINNIE PIPELINE V. HARRINGTON NO. 07-04-0545-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D APRIL 5, 2005 ______________________________ ANGELITA E. ORTIZ, Individually and as Representative of the Estate of JOSE FABIAN ORTIZ, Deceased, and as Next Friend of RONNIE JAY ORTIZ and JOSE FABIAN ORTIZ, JR., Minors, and ZOILA P. ORTIZ and STEPHANIE ORTIZ as Next Kin of JOSE FABIAN ORTIZ, DECEASED, Appellants V. SERVICE GIN, INC., Appellee _________________________________ FROM THE 242nd DISTRICT COURT OF HALE COUNTY; NO. B-33181-0313; HON. ED SELF, PRESIDING _______________________________ On Motion to Dismiss _______________________________ Before QUINN, REAVIS and CAMPBELL, JJ. Angelita E. Ortiz, Individually and as Representative of the Estate of Jose Fabian Ortiz, Deceased, and as Next Friend of Ronnie Jay Ortiz and Jose Fabian Ortiz, Jr., Minors, and Zoila P. Ortiz and Stephanie Ortiz as Next Kin of Jose Fabian Ortiz, Deceased, appellants, and Service Gin, Inc., appellee, by and through their attorneys, have filed a motion to dismiss this appeal because the parties have fully compromised and settled all issues in dispute and neither desire to pursue the appeal. Without passing on the merits of the case, we grant the motion to dismiss pursuant to Texas Rule of Appellate Procedure 42.1(a)(2) and dismiss the appeal. Having dismissed the appeal at appellants' request, no motion for rehearing will be entertained, and our mandate will issue forthwith. Brian Quinn Justice pan style="font-weight: bold">ABATEMENT AND REMAND           Following a plea of not guilty, a jury convicted appellant Joey Nickolas Vallejo of possession of a controlled substance, methamphetamine, of four grams or more but less than 200 grams. The jury assessed punishment at 16 years confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant timely filed a notice of appeal. The reporter's record, clerk's record, and supplemental volumes of the clerk’s record were filed. Appellant's brief was due for filing on November 28, 2007, but neither his brief nor a motion for extension for time were filed.           By letter dated December 7, 2007, this Court notified appellant's appointed counsel of this failure and also explained that if no response was received by December 17, 2007, the appeal would be abated pursuant to Rule 38.8(b) of the Texas Rules of Appellate Procedure. We received no response and therefore abate the appeal and remand the case to the trial court for further proceedings.           On remand, the trial court shall conduct the hearing required by Rule 38.8(b)(2) and (3) to determine: 1. Whether appellant desires to prosecute the appeal; and 2. If so, whether appellant's present counsel, given his failure to file a brief, will pursue the appeal or, if appellant is indigent, the appointment of new counsel is necessary.             Should the trial court determine appellant desires to continue the appeal, is indigent, and that new counsel should be appointed, it shall appoint new counsel to represent appellant for this appeal. Should the trial court appoint new counsel, its order of appointment shall include newly appointed counsel’s name, address, telephone number, and state bar number.           The trial court shall execute all orders necessary regarding the aforementioned issues. If necessary, it shall execute findings of fact and conclusions of law. The trial court shall include its findings, conclusions, and orders, in a supplemental clerk's record. A supplemental reporter's record of the hearing of matters made the subject of this opinion shall also be included in the appellate record. Finally, the trial court shall file the supplemental clerk's record and the supplemental reporter's record with the Clerk of this Court by February 11, 2008. It is so ordered. Per Curiam     Do not publish.

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09-07-2015