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https://www.courtlistener.com/api/rest/v3/opinions/708487/ | 70 F.3d 1264
NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Benjamin Shabazz PEAY, Defendant-Appellant.
No. 95-6468.
United States Court of Appeals, Fourth Circuit.
Submitted: November 16, 1995.Decided: November 28, 1995.
Benjamin Shabazz Peay, Appellant Pro Se. David Bernard Smith, Assistant United States Attorney, Greensboro, NC, for Appellee.
Before MICHAEL and MOTZ, Circuit Judges, and BUTZNER, Senior Circuit Judge.
PER CURIAM:
1
Appellant appeals from the district court's order denying his post-judgment motion requesting trial transcripts at the government's expense. The Appellant asserted that he needed the transcripts in order to perfect a direct appeal from his criminal conviction. The district court denied the motion because Appellant had not shown a particularized need for the transcripts. We have reviewed the record and the district court's opinion affirming the order of the magistrate judge and find no reversible error. Appellant's counsel has perfected a direct appeal of Appellant's criminal conviction, and this court heard oral arguments on the merits of the appeal. In light of these developments, 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 | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/126612/ | 537 U.S. 1142
MIRANDA ET AL.v.UNITED STATES.
No. 02-7791.
Supreme Court of United States.
January 13, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT.
2
C. A. 8th Cir. Certiorari denied. Reported below: 301 F. 3d 877. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3235012/ | From a judgment of conviction for a violation of the prohibition law, this appeal was taken.
The evidence without conflict disclosed that this defendant, together with two others, his father and an uncle, were arrested on the night of April 23, 1924, while traveling in a Ford touring car on the public highway in beat 4, of Jefferson county. The proof also showed that this defendant was driving the car, and at the time they were apprehended there was a keg in the car containing 11 or 12 gallons of whisky. The defendant denied ownership, control, possession, or knowledge of the whisky, but upon the trial of his case he was convicted by the jury, who assessed a fine against him of $50, and, from the judgment, it is ascertained that the court sentenced this defendant to three months' hard labor for the county as additional punishment.
Upon the trial, and before pleading to the merits of the complaint, the defendant interposed two special pleas, and the court sustained the state's demurrers thereto. Neither of these pleas was an answer to the complaint, the demurrers were therefore properly sustained. The complaint on its face properly charged the offense complained of.
The first exception appearing was reserved to the action of the court in overruling defendant's objection to the question propounded by the solicitor to state witness Cleere, to wit, "How long had you been there?" The question was proper; it related to the res gestæ. Moreover, no injury to the substantial rights of the defendant resulted from the question, or from the answer given wherein the witness answered: "About two hours and a half." Furthermore, there was no motion made to exclude the answer.
The next exception was taken to the court's ruling in sustaining the state's objection to the question asked the defendant while testifying in his own behalf. Defendant had testified, "I do know Reeder." He was then asked, "He knew your name to be Olice?" The objection was properly sustained. *Page 239
"Reeder" was not examined as a witness in this case, and, so far as the record shows, was not summoned as a witness upon this trial. Under the issues before the court, the question called for immaterial and irrelevant matter.
The remaining question presented is the refusal by the court to give the general affirmative charge requested by defendant in writing. The evidence was in conflict and presented a jury question. This being true, the court was without authority to give said charge. Its refusal was without error.
No error is apparent upon the record. The judgment of the circuit court will stand affirmed.
Affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1525395/ | 25 B.R. 173 (1982)
In re The A.C. WILLIAMS COMPANY, Ravenna Industries, Inc., Miami Foundry Corporation, Debtors.
Bankruptcy Nos. 581-409 to 581-411.
United States Bankruptcy Court, N.D. Ohio.
November 30, 1982.
*174 David M. Hunter, Akron, Ohio, for debtor.
Harry Mercer, Lee Powar, Cleveland, Ohio, for Creditor's Committee.
Dennis J. Kaselak, Cleveland, Ohio, for eight interested creditors.
James Lowe, Cleveland, Ohio, for creditor, Arden Kackley.
FINDING
H.F. WHITE, Bankruptcy Judge.
The A.C. Williams Company, Ravenna Industries, Inc. and Miami Foundry Corporation (the Debtors), filed a disclosure statement on November 5, 1982 as required by 11 U.S.C. 1125. Due notice of said hearing on the disclosure statement was given to all creditors as required by law and November 24, 1982 was the last date set for filing objections to the disclosure statement. Two objections to the disclosure statement were filed, one by Arden L. Kackley represented by James A. Lowe and an objection filed by eight unsecured creditors represented by Dennis J. Kaselak.
The hearing was held on the 29th day of November, 1982 at 2:30 PM as set forth in the Notice. The debtors were present represented by counsel, the creditors' committee in the Ravenna Industries, Inc. case appeared represented by counsel, Attorney Lowe and Attorney Kaselak were present on behalf of their objecting clients, and there were other creditors present at said hearing.
The main objection to the disclosure statement by the two objectors was that the Pro Forma of Income and Cash Flow Statement for the years 1983 to 1987 found on page 20, was based upon inadequate information.
The Disclosure Statement for which approval is sought is a 70 page document. Exhibit "A" which is attached to the Disclosure Statement is the Plan of Reorganization.
*175 The Court finds that on pages 25 and 26 of the disclosure statement, the debtors' unaudited consolidated balance sheet as of September 30, 1982 sets forth the book value of the assets and liabilities of the debtors. The Court further finds that the debtors set forth the estimated liquidated value of the assets and liabilities if it were necessary to liquidate these companies under Chapter 7 of the present Bankruptcy Code.
The Court finds from the testimony of Al Spalding and Ron McInnes that the liquidated valuation as set forth in debtors' Exhibits B through O inclusive, does in fact represent the liquidated value of said assets. The Court further finds in debtors' Exhibit A, the disclosure statement, that on page 2 a disclaimer has been made by the debtors as to the future operations which are based on the "best estimates in light of current market conditions, past experience, financing which can reasonably be anticipated to be available, and other factors, all of which are subject to change and any of which may cause the actual results to differ from those projected."
The Court further finds that the debtors set forth the background, history and business of the said debtors and further set forth the events leading to the filing of the Chapter 11 proceeding. The debtors did state on page 5 of the disclosure statement that there were negotiations with Eagle Picher Industries as to an unresolved claim against the debtors by said Eagle Picher Industries as of the date of the preparation of the disclosure statement which claim then approximated 1.4 million dollars although debtors contended that the claim amounted to $750,000.00. At the hearing, it was indicated by counsel representing Eagle Picher and the debtors, that their differences had been resolved. Therefore, it appears to this Court that the disclosure statement should be amended to reveal this fact to the creditors.
The disclosure statement further indicated which divisions and companies the debtors would continue to operate and set forth in detail the terms of the pension plans and their termination. On page 7, the disclosure statement sets forth the summary of the plan of arrangement as proposed including classification of claims as well as other provisions and conditions of said plan. The debtor provided a pro forma income and cash flow statement in the statement and disclosed the identity of the officers and directors of the company following reorganization, setting forth the ages, positions and present salaries.
The disclosure statement also set forth the amount which would be realized through liquidation. The debtors indicated that under its valuation, liquidation would result in the unsecured creditors receiving approximately $1,714,000.00. As pointed out by the attorney for the creditors' committee if the plan was approved, the initial payment to the unsecured creditors could be made on or before February, 1983 and would result in a payment to all creditors in the approximate amount of $2,855,000.00.
The Court finds the disclosure statement did not set forth the executory contract between Arden L. Kackley and the debtors, Arden L. Kackley being a former officer and present shareholder. The debtors indicated that they had not rejected or accepted any executory contracts at this time, but that the plan provides for the assumption of any executory contracts not expressly rejected.
The Court finds the creditors' committee did participate in the drafting of the disclosure statement, the creditors' committee having been very active up to this time in these proceedings and said creditors' committee counsel indicated to the Court that they were satisfied that the disclosure statement was adequate for the requirements of 11 U.S.C. 1125.
ISSUE
Whether or not this disclosure statement contains information of a kind, and in sufficient detail, as far as reasonably practical to enable a hypothetical reasonable investor typical of holders of claims or interests of the relevant class to make an informed judgment about the plan.
*176 LAW
Before acceptances or rejections of a proposed Chapter 11 plan may be solicited, the Court must find that the written disclosure statement contains adequate information. 11 U.S.C. Section 1125(b). Adequate information is defined as meaning "information of a kind, and in sufficient detail, as far as is reasonably practicable in light of the nature and history of the debtor and the condition of the debtor's books and records, that would enable a hypothetical reasonable investor typical of holders of claims or interests of the relevant class to make an informed judgment about the plan." 11 U.S.C. 1125(a)(1). What constitutes adequate information under this definition must be determined on a case-to-case basis under flexible standards.
In determining the adequacy of a disclosure statement, the Court finds that there are certain criteria which should be set forth in the statement. They are: 1) the incidents which led to the filing of the Chapter 11; 2) a description of available assets and their value; 3) the anticipated future of the company; 4) the source of information for the disclosure statement; 5) disclaimer; 6) present condition of the company while in Chapter 11; 7) claims scheduled; 8) the estimated return to the creditors if liquidated; 9) the accounting process used and the identity of the person who furnished the information; 10) future management of the debtor; 11) plan. The Court found all these criteria have been met. The Court found that each of these items has been set forth in the disclosure statement.
This Court finds from the testimony of the two appraisers that should liquidation occur, the trade creditors will receive substantially less than they would receive upon confirmation of the plan, not considering the balance of the payments contemplated by the plan. This was adequately pointed out to the Court by the creditors' committee. Further, it has been pointed out to the Court that, as to the objections raised by Arden L. Kackley, a former officer of Ravenna Industries, Inc., it is admitted that Mr. Kackley is now employed by Thompson Aluminum, a competitor of debtors. That fact should be considered by the Court when it rules on Mr. Kackley's objection.
The objecting creditors spent much time at the hearing attempting to prove that the financial statements made in the disclosure statement were incorrect. Whether or not said creditors did in fact prove that there was an inconsistency between the figures as listed in the disclosure statement and those figures as they actually exist, the sole issue before the Court is the adequacy of the information given in the disclosure statement. The inconsistencies which these creditors attempted to prove goes to the feasibility of the Plan, a matter which is more appropriately heard at the time this case comes on for confirmation of the Plan, as provided for under 11 U.S.C. Section 1129(a)(11). In Re The Stanley Hotel, Inc., 13 B.R. 926, 8 B.C.D. 35 (Bkrtcy.D.Co.1981); In Re Hughes Marina, Inc., 6 B.C.D. 978 (Bkrtcy.W.D.N.Y.1980).
Attorney Kaselak, on behalf of his group of eight unsecured creditors, also attempted to make an issue as to the adequacy of this disclosure statement in so far as the same does not meet the requirements for a prospectus under federal securities laws. Such an argument must be rejected. As set forth in 11 U.S.C. Section 1125(d), "Whether a disclosure statement contains adequate information is not governed by any otherwise applicable nonbankruptcy law, rule, or regulation . . ." As such the fact that this disclosure statement may not meet the requirements for a prospectus under state or federal securities law is irrelevant.
In arguments before this Court, the objecting creditors raised the propriety of the participation by the creditors' committee in negotiating and formulating a Plan of Reorganization and further in making recommendations to the Court regarding the approval of the disclosure statement. The creditors' committee does not deny this participation.
*177 It is the determination of this Court that the creditors' committee is empowered to act as it did pursuant to 11 U.S.C. 1103(c)(1) and (3). That section, which defines the powers and duties of a creditors' committee, provides in part that:
A committee appointed under section 1102 of this title may
(1) consult with the trustee or debtor in possession concerning the administration of the case;
(3) participate in the formulation of a plan, advise those represented by such committee of such committee's recommendations as to any plan formulated, and collect and file with the court acceptances of a plan.
The Court finds that it was the intent of Congress that a creditors' committee be active. The creditors' committee has the duty to consult with the debtor/debtor-in-possession regarding the disclosure statement as the same effects the creditors whom they represent. Participation in the formulation of a Plan as well as the making of recommendations regarding a disclosure statement helps to avoid delay in approval of the disclosure statement and also minimizes the costs of administration associated with the approval of a disclosure statement.
The Court would point out that at page 4 of its disclosure statement, debtors have indicated that the debtors' financial statement for the years ending December 31, 1980 and December 31, 1981 are available for inspection by interested parties. Additionally, the debtor-in-possession reports filed by debtors during the pendency of this case are available for review in the office of the Clerk of Courts for the Bankruptcy Court.
This Court finds that the information provided in debtors' disclosure statement is sufficiently adequate to enable the creditors to make an informed judgment about the Plan.
Therefore, it is the conclusion of this Court that debtors' disclosure statement should be approved as filed provided the same is amended so as to disclose the fact that the dispute with Eagle Picher Industries has been settled for the approximate amount of $775,000.00 and further to disclose the existence of an executory contract with Arden L. Kackley. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2799594/ | PS4-114 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 14-1501
____________
MANUEL LAMPON-PAZ, individually
and on behalf of *E.D.L.P., a minor,
Appellants
v.
DEPARTMENT OF HOMELAND SECURITY;
DEPARTMENT OF JUSTICE; SOCIAL SECURITY
ADMINISTRATION; STATE OF NEW JERSEY
* (Dismissed as Appellant pursuant to Clerk’s Order entered 9/25/14)
__________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civ. No. 13-cv-05757)
District Judge: Honorable William J. Martini
__________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 8, 2015
Before: FISHER, KRAUSE and VAN ANTWERPEN, Circuit Judges
(Opinion filed: May 8, 2015)
____________
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.
Manual Lampon-Paz appeals from an order of the District Court dismissing his
amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the
reasons that follow, we will affirm.
We note, as a threshold matter, that we previously summarily affirmed the District
Court’s dismissal of a nearly identical action filed by Lampon-Paz in 2012. See Lampon-
Paz v. Dep’t of Homeland Security, 532 F. App’x 125 (3d Cir. 2013). In the second
action filed in 2013, Lampon-Paz alleged that the federal defendants -- the Departments
of Justice and Homeland Security and the Social Security Administration -- used
electronic methods, including electromagnetic waves, ultrasonic messaging, and “brain
mapping,” against him. The federal defendants allegedly used these mind-control
techniques to prevent him from “whistleblowing” on misbehavior by other federal
employees. Lampon-Paz did not direct any specific allegations against defendant the
State of New Jersey. As a result of the defendants’ conduct, Lampon-Paz allegedly
suffered an invasion of privacy, causing him to have several cardiac episodes and
permanent injury to his back, knees and heart, causing harm to his marriage, and causing
difficulties for his son at school. Lampon-Paz also alleged violations of various federal
statutes and regulations in connection with the conspiracy to control and silence him.
Lampon-Paz demanded money damages and injunctive relief. The District Court’s
decision includes a comprehensive summary of the allegations Lampon-Paz brought in
his numerous filings.
The federal defendants and the State of New Jersey moved to dismiss the amended
complaint with prejudice, and the District Court granted those motions in an order
entered on January 23, 2014. In its decision, the District Court contemplated whether it
2
had subject matter jurisdiction over Lampon-Paz’s claims because of their insubstantial
nature. Ultimately, however, the Court rested its dismissal on the basis of res judicata
and Lampon-Paz’s failure to state a plausible claim for relief. The Court dismissed the
State of New Jersey pursuant to the Eleventh Amendment. The Court also denied
Lampon-Paz’s motions to amend his complaint to add other federal and state defendants,
change venue, appoint counsel, and obtain injunctive relief.
Lampon-Paz appeals.1 We have jurisdiction under 28 U.S.C. § 1291. We exercise
plenary review over res judicata, or claim preclusion, dismissals. See Elkadrawy v.
Vanguard Group, Inc., 584 F.3d 169, 172 (3d Cir. 2009). We also exercise plenary
review over a dismissal with prejudice under Rule 12(b)(6). See Heffernan v. Hunter,
189 F.3d 405, 408 (3d Cir. 1999).
We will affirm. Res judicata, also known as claim preclusion, applies in both
federal court and New Jersey when there has been (1) a final judgment on the merits in a
prior lawsuit involving (2) the same parties or their privies and (3) a subsequent suit
based on the same cause of action. See Lubrizol Corp. v. Exxon Corp., 929 F.2d 960,
963 (3d Cir. 1991). “To preclude parties from contesting matters that they have had a full
and fair opportunity to litigate protects their adversaries from the expense and vexation
attending multiple lawsuits, conserves judicial resources, and fosters reliance on judicial
action by minimizing the possibility of inconsistent decisions.” Montana v. United
States, 440 U.S. 147, 153-54 (1979). Res judicata applies even if a plaintiff attempts to
present a different legal theory in the second action. See United States v. Athlone Indus.,
1
Lampon–Paz sought to represent his minor son, E.D.L.P., on appeal. The Clerk of this
Court advised him that he could only represent himself, and that an appearance by
counsel was required on behalf of his son. No such appearance was entered and,
therefore, the appeal was dismissed as to E.D.L.P.
3
Inc., 746 F.2d 977, 983 (3d Cir. 1984). It “gives dispositive effect to a prior judgment if
a particular issue, although not litigated, could have been raised in the earlier
proceeding.” CoreStates Bank, N.A. v. Huls America, Inc., 176 F.3d 187, 194 (3d Cir.
1999) (quoting Bd. of Trustees of Trucking Employees Welfare Fund, Inc. v. Centra, 983
F.2d 495, 504 (3d Cir. 1992)).
The District Court correctly found that all elements necessary for res judicata to
apply were satisfied, and, therefore, that Lampon-Paz’s second action was barred. In his
first action filed in 2012, there was a final judgment on the merits involving the exact
same parties. That prior suit was based on the same cause of action as the second action,
namely allegations that the defendants employed fantastical covert electronic techniques
to invade his mind and harm him and his family. The only difference between the first
and second actions is that the first action also involved an employment-related claim
against the Merit Systems Protection Board (“MSPB”). That difference, however, is
immaterial in the context of the res judicata analysis.2 In determining whether a
subsequent case is based on the same cause of action as a prior case, we will look to
whether there is an “essential similarity of the underlying events giving rise to the various
legal claims.” Elkadrawy, 584 F.3d at 173. Here, as held by the District Court, in both
the first and second actions, Lampon-Paz alleged that the defendants were covertly
harming him and his son through invisible electronic means in retaliation for reporting
2
The District Court in the first action determined that it lacked subject matter jurisdiction
over Lampon-Paz’s case to the extent that he was appealing the decision of the MSPB,
and we upheld this determination. Final decisions of the MSPB may only be reviewed by
the United States Court of Appeals for the Federal Circuit. Lampon-Paz, 532 F. App’x at
126 (citing 5 U.S.C. § 7703(b)(1)(A)).
4
co-workers’ misconduct. The material facts alleged in the first and second actions are the
same. See Athlone Indus., 746 F.2d at 984.
Lampon-Paz argues that res judicata would apply only if the defendants had
stopped their actions, which they have not. Appellant’s Informal Brief, at 5. This
argument is specious. The issue is not whether the defendants have continued to engage
in conduct that formed the basis of the first civil action. The res judicata analysis turns
on whether there has been a final judgment on the merits in a prior lawsuit involving the
same parties and a subsequent suit involving the same underlying events. See Lubrizol
Corp. 929 F.2d at 963; Athlone Indus., 746 F.2d at 984. Here, Lampon-Paz’s second
action reasserted the same cause of action against the federal defendants and the State of
New Jersey that was previously alleged and properly dismissed in his 2012 civil action.
We further conclude that the District Court properly dismissed the amended
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on the ground that the
claims are implausible. In order to defeat a Rule 12(b)(6) motion, a plaintiff’s “[f]actual
allegations must be enough to raise a right to relief above the speculative level.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Hence, “only a complaint that
states a plausible claim for relief survives a motion to dismiss.” Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009). Although Lampon-Paz enumerated various injuries, he did not
plead “factual content that allowed the District Court to draw the reasonable inference
that the defendants are liable for the misconduct alleged.” Id. at 678. Lampon-Paz’s
amended complaint alleging brain-mapping, subliminal messaging, and other methods to
control his mind and harm his body is not “plausible on its face,” as required to survive a
Rule 12(b)(6) motion to dismiss. Twombly, 550 U.S. at 570.
5
Furthermore, the District Court properly denied leave to amend because granting
such leave would have been futile; properly denied injunctive relief because the claims
were implausible; properly denied a change of venue, where, at the time of the motion,
Lampon-Paz was a resident of New Jersey, the acts in question all took place in New
Jersey, and the State of New Jersey was one of the parties; and properly denied
appointment of counsel because the claims were implausible.
In addition, the District Court correctly dismissed the amended complaint as to the
State of New Jersey on the basis of the Eleventh Amendment and the principles of
sovereign immunity. The Eleventh Amendment renders a state immune from suit by
private parties in federal court unless the state consents to jurisdiction. See, e.g.,
Pennsylvania Federation of Sportsmen’s Clubs, Inc. v. Hess, 297 F.3d 310, 323 (3d Cir.
2002). The State of New Jersey has not consented to suit in federal court.
Last, Lampon-Paz cannot raise new arguments on appeal. For example, for the
first time on appeal, he alleges the use of “Neuro Pleural Linguistics or Neuro Linguistic
Programming” to cause him harm. Appellant’s Informal Brief, at 13. He also raises for
the first time on appeal -- without explanation or analysis -- a Fourth Amendment claim.
Id. at 22. We will not review arguments raised for the first time on appeal absent
exceptional circumstances, Tri-M Group, LLC v. Sharp, 638 F.3d 406, 416 (3d Cir.
2011), and none are present here.
For the foregoing reasons, we will affirm the order of the District Court dismissing
Lampon-Paz’s amended complaint pursuant to Rule 12(b)(6). The motions he has filed
in this Court to “have the Court intercede,” for a restraining order, and to show cause for
being detained, all are denied. His motion to amend his reply brief is granted.
6 | 01-03-2023 | 05-08-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2827729/ | FILED
NOT FOR PUBLICATION AUG 17 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MOISES LOPEZ ESTEVEZ, No. 11-72168
Petitioner, Agency No. A095-192-197
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 13, 2015**
Pasadena, California
Before: SENTELLE,*** CHRISTEN, and HURWITZ, Circuit Judges.
An immigration judge denied Moises Lopez Estevez’s application for
cancellation of removal because Lopez “presented insufficient evidence for the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable David Bryan Sentelle, Senior Circuit Judge for the
U.S. Court of Appeals for the District of Columbia Circuit, sitting by designation.
Court to infer or conclude that his removal will result in exceptional and extremely
unusual hardship to any of his three United States citizen children.” See 8 U.S.C.
§ 1229b(b)(1). Lopez filed a motion to reopen the removal proceedings so that he
could present additional evidence of hardship. He also appealed the immigration
judge’s decision. The Board of Immigration Appeals affirmed the immigration
judge’s denial of cancellation of removal. It then construed the motion to reopen
as a motion to remand, see 8 C.F.R. § 1003.2(c)(4), and denied it. Lopez petitions
for review only of the denial of the motion to reopen. He does not challenge the
BIA’s determination that he failed to demonstrate “exceptional and extremely
unusual hardship” at his hearing before the immigration judge. We dismiss in part
and deny in part Lopez’s petition.1
1. Lopez’s motion to reopen was based on two categories of additional
evidence: (1) evidence not presented at the hearing due to alleged ineffective
assistance of counsel, and (2) post-hearing evidence that Lopez’s eldest son had
been admitted to a high school program for gifted students. We have jurisdiction
under 8 U.S.C. § 1252 to review the BIA’s denial of Lopez’s motion to reopen
with respect to evidence in the first category. See Mata v. Lynch, 135 S. Ct. 2150,
1
The parties are familiar with the facts, so we have recounted only an
abbreviated version of them here.
2
2154 (2015). But because we lack jurisdiction to review the BIA’s “subjective,
discretionary determination that [Lopez] failed to satisfy the ‘exceptional and
extremely unusual hardship’ requirement for cancellation of removal,” see
Martinez-Rosas v. Gonzalez, 424 F.3d 926, 930 (9th Cir. 2005) (citing 8 U.S.C. §
1252(a)(2)(B)(i)), we lack jurisdiction to review the BIA’s denial of Lopez’s
motion with respect to the evidence of Lopez’s son’s high school acceptance. See
Fernandez v. Gonzalez, 439 F.3d 592, 601–03 (9th Cir. 2006) (no jurisdiction to
review “denial of a motion to reopen that pertains only to the merits basis for a
previously-made discretionary determination”).
2. The BIA did not abuse its discretion by denying Lopez’s motion to reopen
based on ineffective assistance of counsel on the ground that Lopez did not suffer
any prejudice as a result of his counsel’s failure to present certain additional
evidence at the hearing before the immigration judge. Because the additional
evidence would not alter the conclusion that Lopez failed to demonstrate
“exceptional and extremely usual hardship,” there is no possibility counsel’s
performance “affected the outcome of the proceedings.” See Mohammed v.
Gonzales, 400 F.3d 785, 794 (9th Cir. 2005) (internal quotation marks omitted).
3
3. We lack jurisdiction to review the BIA’s decision not to invoke its sua
sponte authority to reopen under 8 C.F.R. § 1003.2(a). Toufighi v. Mukasey, 538
F.3d 988, 993 n.8 (9th Cir. 2007).
Petition DISMISSED in part and DENIED in part.
4 | 01-03-2023 | 08-17-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2987995/ | January 10, 2013
JUDGMENT
The Fourteenth Court of Appeals
ADAIAH EZEKIEL, M.D., Appellant
NO. 14-12-00305-CV V.
ADA SHORTS AND STERLING DRISDALE, INDIVIDUALLY AND AS
REPRESENTATIVES OF THE ESTATE OF JA’MAREAN J. SHORTS
DRISDALE, DECEASED, Appellees
________________________________
This cause, an appeal from the trial court’s order in favor of appellees, Ada
Shorts and Sterling Drisdale, Individually and as Representatives of the Estate of
Ja’Marean J. Shorts Drisdale, Deceased, signed March 9, 2012, was heard on the
transcript of the record. We have inspected the record and find error in the trial
court’s order. We therefore order the order of the court below REVERSED and
REMAND the cause for proceedings in accordance with the court’s opinion.
We order that all costs incurred by reason of this appeal be paid by
appellees, Ada Shorts and Sterling Drisdale, Individually and as Representatives of
the Estate of Ja’Marean J. Shorts Drisdale, Deceased. We further order this
decision certified below for observance. | 01-03-2023 | 09-23-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/7433293/ | Mandamus denied without opinion. | 01-03-2023 | 07-29-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/126638/ | 537 U.S. 1143
APANOVITCH ET AL.v.WILKINSON, DIRECTOR, OHIO DEPARTMENT OF REHABILITATION AND CORRECTION, ET AL.
No. 02-7833.
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: 32 Fed. Appx. 704. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3224219/ | Petition for certiorari by the state to review the decision of the Court of Appeals in the case of Rollie Cobb v. State,100 So. 463, wherein a judgment of conviction of appellant was reversed. The only question here sought to be reviewed by the state relates to the ruling of the Court of Appeals as to the exception to a portion of the oral charge of the court. The Court of Appeals construed that portion of the oral charge as contravening the rule of law that the jury must be convinced beyond a reasonable doubt of the corroborating evidence in cases of this character before its further consideration in connection with the evidence of the accomplice. The holding of the Court of Appeals as to this rule of law is correct, and in addition to the authorities therein cited by that court, we may add Malachi v. State, 89 Ala. 134, 8 So. 104; McDaniels v. State, 162 Ala. 25, 50 So. 324.
The petition for the writ of certiorari is denied.
Writ denied.
ANDERSON, C. J., and SAYRE, GARDNER, and MILLER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3224223/ | ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeals of -- )
)
Maersk Line Limited, Inc. ) ASBCA Nos. 58779, 58844
)
Under Contract No. HTC711-09-D-0040 )
APPEARANCE FOR THE APPELLANT: Elizabeth A. Ferrell, Esq.
Bradley Arant Boult Cummings, LLP
Washington, DC
APPEARANCES FOR THE GOVERNMENT: Col Matthew J. Mulbarger, USAF
Air Force Chief Trial Attorney
Christopher S. Cole, Esq.
Maj Donald N. Bugg, USAF
Trial Attorneys
ORDER OF DISMISSAL
The dispute has been settled. The appeals are dismissed with prejudice.
Dated: 21 June2016
Administrative Judge
Armed Services Board
of Contract Appeals
I certify that the foregoing is a true copy of the Order of Dismissal of the Armed
Services Board of Contract Appeals in ASBCA Nos. 58779, 58844, Appeals ofMaersk
Line Limited, Inc., 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/3046148/ | Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
4-6-2009
Toth v. SEC
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-3289
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation
"Toth v. SEC" (2009). 2009 Decisions. Paper 1579.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1579
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-3289
___________
DOUGLAS TOTH,
Petitioner
vs.
SECURITIES AND EXCHANGE COMMISSION,
Respondent
____________________________________
On Petition for Review of an Order
of the Securities and Exchange Commission
(No. 3-12739)
_______________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 2, 2009
Before: SCIRICA, Chief Judge, CHAGARES and WEIS, Circuit Judges.
(Opinion Filed: April 6, 2009)
______________
OPINION
______________
PER CURIAM.
Douglas Toth petitions for review of an order of the Securities and
Exchange Commission (“SEC”) sustaining a disciplinary sanction imposed on him by the
1
National Association of Securities Dealers (“NASD”). We will deny the petition.
I.
Toth, a securities broker-dealer, was a representative of Bedminster
Financial Group, Ltd. (“Bedminster”), an NASD member firm.1 NASD rules required
Toth to register as a representative of Bedminster by filing a Form U-4. Before joining
Bedminster, Toth discussed what to include on his Form U-4 with Bedminster’s majority
owner, Robert Van Pelt, who then filed a Form U-4 on Toth’s behalf. Among other
things, Form U-4 requires the representative to disclose whether he or she has been
“named in any pending investment-related civil matter.” In response to that question,
Toth’s Form U-4 stated “no.”
In fact, however, Toth had been named as a defendant in a civil securities
fraud action brought by the New Jersey Bureau of Securities. The NASD learned of this
discrepancy in July 2004 as part of a routine examination of Bedminster. The NASD
began an investigation, and its enforcement division ultimately filed a disciplinary
complaint against Toth in October 2005. The complaint charged him with willfully
causing the filing of a Form U-4 containing a misrepresentation of material fact in
violation of NASD Membership Rule IM-1000-1 and Conduct Rule 2110.
1
The former NASD has been consolidated into an entity called the Financial Industry
Regulatory Authority, Inc. See Kashner Davidson Secs. Corp. v. Mscisz, 531 F.3d 68, 71
n.1 (1st Cir. 2008). Because all relevant events occurred before that consolidation, we
refer to the entity as the NASD.
2
An NASD Hearing Panel conducted a hearing in May 2006. At the hearing,
Van Pelt testified that Toth never told him about the New Jersey action, but Toth and his
witness, Nicholas Thompson, testified that they had. The Panel also received
documentary evidence. On August 9, 2006, the Panel issued a thorough written decision
sustaining the charge and suspending Toth’s license for one year. In particular, the Panel
found that: (1) Toth knew that he was required to disclose the New Jersey action on the
Form U-4; (2) Toth discussed with Van Pelt what to include on the Form U-4 but failed to
disclose the New Jersey action; and (3) Toth failed to review and sign the Form U-4
either before or after Van Pelt filed it despite Van Pelt’s efforts to get him to do so. In
essence, the Panel concluded that Van Pelt’s testimony was supported by other evidence
and was otherwise more credible than the testimony of Toth and Thompson.
Toth appealed to the NASD’s National Adjudicatory Council, which
affirmed in a thorough decision issued July 27, 2007. Toth then appealed to the SEC.
The SEC, exercising its jurisdiction under 15 U.S.C. § 78s(d)(2), thoroughly reviewed the
record and affirmed by decision issued July 1, 2008. The SEC deferred to the Hearing
Panel’s credibility determinations to the extent that they were based on the Panel’s
observation of the witnesses, but otherwise reviewed the record de novo and
independently reached the same conclusions. Toth now petitions this Court for review.
II.
We have jurisdiction to review the SEC’s decision pursuant to 15 U.S.C. §
3
78y(a)(1). See Levine v. SEC, 407 F.3d 178, 182 (3d Cir. 2005). On review, Toth does
not argue that the SEC committed any legal error and does not challenge the propriety of
the sanction imposed on him. Instead, he challenges only the SEC’s factual finding that
he did not tell Van Pelt about the New Jersey action. We review that finding for
substantial evidence. See id. Under that standard, we must affirm if the finding is
supported by “‘such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.’” Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005)
(citations omitted). See also Dolphin and Bradbury, Inc. v. SEC, 512 F.3d 634, 639 (D.C.
Cir. 2008) (“The Commission’s finding . . . is conclusive if, under our ‘very deferential’
substantial evidence standard, ‘a reasonable mind might accept the evidentiary record as
adequate to support the Commission’s conclusion.’”) (citations omitted). In undertaking
this review, “we may not ‘weigh the evidence or substitute our own conclusions for those
of the fact finder.’” Rutherford, 399 F.3d at 552 (citation omitted). Our review of the
record confirms that the SEC’s ruling is supported by substantial evidence here.2
Toth’s argument that the SEC should have found that he disclosed the New
Jersey action to Van Pelt is two-fold. First, he argues that the SEC should have believed
him and Thompson instead of Van Pelt for a number of reasons. The SEC, however,
2
Pursuant to Rule 17(b)(1)(B) of the Federal Rules of Appellate Procedure, the SEC
initially filed a certified list of the documents contained in the administrative record in
lieu of the record itself. Although Toth does not dispute the SEC’s account of the
witnesses’ testimony and documentary evidence, we directed the SEC to file the actual
record and have reviewed it ourselves.
4
thoroughly addressed each of these points, and our review of the record confirms that its
conclusions are supported by substantial evidence for the reasons stated in its opinion.3
Second, Toth argues that, given the conflicting testimony regarding whether
or not he disclosed the New Jersey action to Van Pelt, the evidence against him was not
sufficiently compelling to support the SEC’s conclusion. As the SEC argues, however,
the evidence on which the SEC relied need not be “compelling” to survive review.
Instead, it need only be substantial—i.e., evidence that “a reasonable mind might accept
as adequate to support a conclusion.’” Rutherford, 399 F.3d at 552. Our review of the
record confirms that Van Pelt’s testimony, together with documentary evidence such as
3
For example, Toth argues that Van Pelt’s testimony about his efforts to have Toth
review and sign the Form U-4 is called into question by Van Pelt’s financial incentive to
quickly register Toth. As the SEC explained, however, Van Pelt’s testimony is supported
by the parties’ correspondence. Toth also argues that the SEC excused Van Pelt’s
mistaken recollection of the location of the meeting at which they discussed what to
include on the Form U-4 but rejected his and Thompson’s testimony for similar reasons.
We agree with the SEC, however, that Van Pelt’s isolated mistaken recollection is the
kind of minor discrepancy that does not require the rejection of a witness’s testimony.
See Rutherford, 399 F.3d at 558. The SEC’s reasons for rejecting Toth’s and
Thompson’s testimony, on the other hand, were of a different order. Among other things,
the SEC concluded that Thompson was impeached by his own failure to disclose his own
involvement in the New Jersey action in a Form U-4, that neither Toth nor Thompson
could recall the details regarding their alleged discussion of the New Jersey action with
Van Pelt, and that the only documents Toth sent to Van Pelt regarding his employment
disclosed certain arbitrations but not the New Jersey action. Toth also argues that it
simply made no sense for him to fail to disclose the New Jersey action because he knew
that the Form U-4 would be reviewed by the very agency that brought that action.
Whatever Toth’s motivations, however, the SEC concluded that he nevertheless failed to
disclose that lawsuit, and its conclusion has more than adequate support in the record.
5
the correspondence between Toth and Van Pelt, was more than adequate to support the
SEC’s ruling. Accordingly, we will deny the petition for review.
6 | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3046149/ | Case: 12-11397 Date Filed: 02/05/2013 Page: 1 of 21
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-11397
________________________
D.C. Docket No. 1:10-cv-23139-JAL
JANET FELICIANO,
Plaintiff-Appellee,
EDGARDO GONZAGA,
Plaintiff,
versus
CITY OF MIAMI BEACH,
a municipal entity,
Defendant,
LT. ROBERT ACOSTA,
Miami Beach Police Lt., in his individual capacity,
DET. ANDREW DOHLER,
Miami Beach Police Det., in his individual capacity,
DET. DOUGLAS DOZIER,
Miami Beach Police Det., in his individual capacity,
SGT. JAMES NASH,
Miami Beach Police Sgt., in his individual capacity,
Defendants-Appellants.
Case: 12-11397 Date Filed: 02/05/2013 Page: 2 of 21
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 5, 2013)
Before CARNES and COX, Circuit Judges, and RESTANI, * Judge.
CARNES, Circuit Judge:
At early common law parties and others with an interest in the outcome of
litigation were deemed incompetent to testify and barred from the witness stand on
the ground that their interest made them unworthy of belief. 2 John H. Wigmore,
Evidence in Trials at Common Law §§ 575–77 (Chadbourn Rev. 1979). The idea
was similar to the one that H.L. Mencken expressed in another context when he
remarked, “It is hard to believe that a man is telling the truth when you know that
you would lie if you were in his place.” H.L. Mencken, A Little Book in C Major
22 (John Lane Co. 1916). Parties with an interest, it was presumed, would lie.
That presumption and the rule of exclusion it supported were worn down by
criticism over time. See, e.g., 5 Jeremy Bentham, Rationale of Judicial Evidence
81 (Fred B. Rothman & Co. 1995) (1827) (describing the rule as “blind and
brainless”). As Logan Bleckley, one of Georgia’s greatest judges, explained more
than a century ago:
*
Honorable Jane A. Restani, United States Court of International Trade Judge, sitting by
designation.
2
Case: 12-11397 Date Filed: 02/05/2013 Page: 3 of 21
Interest and truth may go together. Is there, in the world, an honest
man who does not know that he can tell the truth against his interest?
. . . Where there is impossible doubt as to the effect of villainy upon
veracity, the jury ought to be left to decide it. As coming from the
average of society, they know best what to think on such a question.
Interest is a great rascal; but is not an absolute reprobate. Its doom is
not perdition at all events. It has a chance of salvation. It is not
obliged to commit perjury.
Davis v. Central R.R., 60 Ga. 329, 333 (1878) (Bleckley, J.). Early in the last
century the Supreme Court could say that “what was once regarded as a sufficient
ground for excluding the testimony of [an interested witness] altogether has come
to be uniformly and more sensibly regarded as affecting the credit of the witness
only.” Funk v. United States, 290 U.S. 371, 380, 54 S. Ct. 212, 215 (1933). On
claims subject to trial by jury, issues about whether to credit the testimony of a
witness, interested or not, are for the jury. See Moughon v. State, 57 Ga. 102, 106
(Ga. 1876) (Bleckley, J.) (“What shall come to the jury as evidence, is for the
court. What it is worth when it arrives, is for the jury. They can discern its true
value with spare assistance from the bench.”).
Federal Rule of Civil Procedure 56 and countless decisions applying it
express the modern rule that a case should be put to the jury if there is any genuine
issue of material fact, including one created solely by the testimony of a party.
See, e.g., Strickland v. Norfolk S. Ry. Co., 692 F.3d 1151, 1160 (11th Cir. 2012);
Hulsey v. Pride Restaurants, LLC, 367 F.3d 1238, 1247 (11th Cir. 2004); Stewart
v. Booker T. Washington Ins., 232 F.3d 844, 850 (11th Cir. 2000). Occasionally
3
Case: 12-11397 Date Filed: 02/05/2013 Page: 4 of 21
there is pushback against this rule, sometimes expressed in orders granting
summary judgment despite what is described as the non-movant’s
“unsubstantiated” or “uncorroborated” or non-objective testimony. At other times
we have seen summary judgment based on disapproval of a party’s testimony as
“conclusory” when it is not. There appears to have been some of that in this case,
although the district court did reach the right result anyway.
I.
Police officers Robert Acosta, Andrew Dohler, Douglas Dozier, and James
Nash appeal the district court’s denial of their motion for partial summary
judgment on Janet Feliciano’s 42 U.S.C. § 1983 unlawful search claim.
Feliciano’s claim alleges that those four officers violated her Fourth Amendment
rights when they conducted a warrantless entry into her home and searched it. The
district court denied the defendant officers qualified immunity on the claim,
reasoning that although their initial entry did not violate Feliciano’s clearly
established Fourth Amendment rights, they plainly exceeded constitutional bounds
when they searched, among other things, her underwear drawer and kitchen pantry.
The officers contend that the district court erred in denying them qualified
immunity because the scope of their search did not violate Feliciano’s clearly
established constitutional rights.
4
Case: 12-11397 Date Filed: 02/05/2013 Page: 5 of 21
We review de novo a district court’s denial of summary judgment based on
qualified immunity, applying the same legal standards that governed the district
court. Edwards v. Shanley, 666 F.3d 1289, 1292 (11th Cir. 2012). Summary
judgment is appropriate when the record evidence, including depositions, sworn
declarations, and other materials, shows “that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a), (c). In conducting our review, “we are required to view the evidence
and all factual inferences therefrom in the light most favorable to the non-moving
party, and resolve all reasonable doubts about the facts in favor of the non-
movant.” Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1143 (11th Cir. 2007)
(quotation marks omitted). Thus, “when conflicts arise between the facts
evidenced by the parties, we [must] credit the nonmoving party’s version.” Evans
v. Stephens, 407 F.3d 1272, 1278 (11th Cir. 2005) (en banc). Although the “facts,”
as accepted for purposes of summary judgment, may not be the actual facts of the
case, “our analysis . . . must begin with a description of the facts in the light most
favorable to the plaintiff” and our decision must accept those facts. Davis v.
Williams, 451 F.3d 759, 763 (11th Cir. 2006).
II.
Aside from the time, place, and persons involved in the incident giving rise
to this case, the parties’ accounts of the material events differ. At this stage of the
5
Case: 12-11397 Date Filed: 02/05/2013 Page: 6 of 21
proceedings we are required to credit Feliciano’s version if there is any evidence to
support it, and it is that version we set out here.
In August 2006, the Miami Beach Police Department received a confidential
tip from one of Feliciano’s neighbors. According to that tip, a couple living at
Feliciano’s apartment were possibly drug dealers and had three small children in
the household. 1 Responding to that tip, narcotics officers Acosta, Dohler, Dozier,
and Nash went to Feliciano’s apartment at around 9:00 p.m. on September 2, 2006,
to investigate. Feliciano, who was five to eight weeks pregnant at the time, was
inside the apartment with her domestic partner, Edgardo Gonzaga, and their three
children, aged 7, 6, and 4. Feliciano’s eldest son answered the officers’ knock on
the door by opening it a little. When Feliciano came to the doorway, the officers
identified themselves, informed her that they had received an “anonymous” tip that
drugs were being sold out of her apartment, and asked if they could come inside
1
The signed letter submitted to the police stated:
As a neighbor on Crespi Blvd., I am concerned about the following situation. There is
a lot of activity (drugs?) that occurs in the section 8 housing unit at 8235 Crespi Blvd.,
Miami Beach, I believe #1(?) (the apartment closest to the street). I believe the female
living there, along with her husband, are active drug dealers. People come and go at
all hours of day and night, and there are many loud disputes and fights. Neighbors are
scared of them. With the three small children in the household, it is especially
dangerous for the welfare of not only those children, but others on this block.
Feliciano filed a motion in the district court to exclude the allegations in the neighbor’s
tip because the officers failed to timely disclose its existence under Fed. R. Civ. P. 26(a).
Although the district court has yet to formally rule on Feliciano’s motion, it implicitly overruled
her request for purposes of summary judgment by considering the contents of the neighbor’s tip
in its decision. We need not decide whether the district court abused its discretion in doing so
because the contents of the tip do not affect the result of this appeal. See infra pp. 19–20.
6
Case: 12-11397 Date Filed: 02/05/2013 Page: 7 of 21
and search it. Feliciano disputed the accuracy of the tip and told the officers that
they could not come inside without a search warrant. Officer Dohler replied that
the officers didn’t need a search warrant because Feliciano had a religious candle
burning in her window, which presented a fire hazard justifying the removal of her
children from the home. (The officers have not repeated that assertion since then.)
Around this time, Gonzaga came walking out of the back bedroom where he
had been watching television. When the officers spotted him, they pushed their
way through the door and rushed into the apartment. Acosta grabbed Feliciano’s
neck, forced her towards the living room couch, held her arms behind her back,
and began repeatedly slamming her stomach into the wooden side arm of the
couch. Although Feliciano begged Acosta to stop because she was asthmatic,
pregnant, and didn’t want any harm to come to her unborn child, Acosta ignored
her pleas and continued to ram her stomach into the arm of the couch. Officer
Nash, who was standing beside Acosta and Feliciano, did not intervene.
While Acosta was restraining Feliciano, Dohler and Dozier grabbed
Gonzaga by the neck and, when Feliciano’s eldest son ran near, one of the officers
grabbed the child by the shoulder and threw him against the wall. Following a
brief struggle, Dohler and Dozier handcuffed Gonzaga. Acosta then allowed
Feliciano to sit on the couch and comfort her three children. Without the consent
of either Feliciano or Gonzaga, Acosta, Dohler, and Dozier proceeded to search the
7
Case: 12-11397 Date Filed: 02/05/2013 Page: 8 of 21
residence, rifling through Feliciano’s underwear drawer in her bedroom, the
medicine cabinet in the bathroom, and the cabinets and pantry in the kitchen. One
of the officers eventually emerged from the kitchen holding what he claimed was a
half of a marijuana joint that he claimed to have discovered. Gonzaga remarked
“that’s not my weed,” but was soon escorted out of the apartment on misdemeanor
charges of resisting arrest without violence, possession of cannabis, and possession
of drug paraphernalia. After the officers left, Feliciano experienced stomach
cramping and vaginal bleeding. She went to the emergency room the next day and
learned that she had suffered a miscarriage.
In his arrest report, completed after the incident, Acosta stated that the
officers noticed the smell of marijuana emanating from Feliciano’s apartment after
she opened the door and as they were explaining to her the reason they were there.
The report also indicated that Gonzaga was “smoking a joint” as he emerged from
the bedroom, tried to conceal the joint as soon as he saw the officers standing
outside, and then dropped it and attempted to run out of the apartment. The
officers reportedly recovered the joint and also found a small amount of cannabis
and rolling papers in Gonzaga’s pocket during a search incident to arrest. Acosta
indicated in his report, however, that it was unknown whether Gonzaga was under
the influence of drugs.
8
Case: 12-11397 Date Filed: 02/05/2013 Page: 9 of 21
Gonzaga was formally charged with resisting arrest, possession of
marijuana, and possession of drug paraphernalia, but the charges were later
dismissed because no officer appeared in court. The alleged marijuana that the
officers claimed to have seized at the apartment was never tested and has since
been destroyed.
III.
Feliciano filed a fifteen-count amended complaint against the City of Miami
Beach and the four officers in their individual capacities, asserting numerous
constitutional claims for excessive force and unlawful search and seizure, as well
as several state-law tort claims. In Count Six of the complaint, which is the only
claim at issue in this appeal, Feliciano alleged that the officers violated her Fourth
Amendment rights when they entered her home without a warrant and searched the
premises. The officers moved for partial summary judgment on a number of the
claims, including the one asserted in Count Six. They maintained that they were
entitled to qualified immunity on that claim because the warrantless entry and
resulting search of Feliciano’s apartment were justified by probable cause and the
presence of exigent circumstances—namely, the need to prevent the destruction of
drug evidence and to otherwise ensure that there were no drugs “within the plain
grasp” of Feliciano’s children. Officer Nash also maintained that he was entitled
9
Case: 12-11397 Date Filed: 02/05/2013 Page: 10 of 21
to qualified immunity because he did not personally participate in the search of
Feliciano’s bedroom, bathroom, or kitchen.
The officers based their defense of qualified immunity, in large measure, on
Acosta’s arrest report and his deposition testimony. During his deposition, Acosta
testified, in relevant part, that he smelled marijuana emanating from Feliciano’s
apartment when the officers first approached the residence and before they
knocked on the door. Acosta also testified that he saw Gonzaga smoking a joint as
he walked out of the bedroom “with slits for eyes,” and that Gonzaga attempted to
conceal the joint by lowering his right hand and hiding it in his palm. Feliciano, in
both her deposition testimony and sworn declaration, adamantly disputed the
officers’ account, testifying that Gonzaga had nothing in his hands when he
emerged from the bedroom, that neither she nor Gonzaga was smoking marijuana,
and that there was no marijuana smell in the apartment when the officers arrived.
She also testified that there was no marijuana in her apartment before the officers
arrived and began their search. Gonzaga was not deposed.
The district court rejected the officers’ claims for qualified immunity, but
solely on the ground that the scope of their search, particularly of the underwear
drawer and kitchen pantry, violated Feliciano’s clearly established Fourth
Amendment rights because it plainly exceeded constitutional bounds, including the
10
Case: 12-11397 Date Filed: 02/05/2013 Page: 11 of 21
demands of any apparent exigency. 2 The court concluded that the officers did not
violate clearly established law when they entered Feliciano’s apartment without a
warrant. Its reasoning was that the officers had arguable probable cause and faced
arguable exigent circumstances given the “effectively undisputed evidence” that
they smelled marijuana coming from the apartment and saw Gonzaga holding a
joint. Although the court acknowledged Feliciano’s testimony to the contrary, it
found that her “bare assertions” were insufficient to create a genuine issue of fact
about the officers’ observations because her testimony was “conclusory” and
unsupported by any objective evidence. Accepting the officers’ assertions that
they smelled and saw marijuana, the district court found that arguable probable
cause and arguable exigent circumstances justified their immediate entry into
Feliciano’s home, without her consent, in order to arrest Gonzaga and to prevent
the possible destruction of drug evidence.
IV.
The officers contend that, while the district court correctly concluded that
arguable probable cause and arguable exigent circumstances justified their
warrantless entry into Feliciano’s home, the court erred in concluding that they
exceeded the scope of a permissible search by looking through her underwear
2
The district court did not address Nash’s contention that he was entitled to qualified
immunity because he did not personally participate in the search of Feliciano’s apartment. See
infra p. 20.
11
Case: 12-11397 Date Filed: 02/05/2013 Page: 12 of 21
drawer and pantry. They argue that the entry and search of Feliciano’s apartment
was supported not just by arguable probable cause but also by actual probable
cause given the “undisputed” evidence that they had received a tip from a neighbor
that the couple residing in Feliciano’s apartment was selling drugs; they smelled
marijuana when they approached the apartment; when the door was opened, they
observed Gonzaga coming out of the bedroom with a joint that he attempted to
conceal; and they found marijuana and rolling papers on him during a search
incident to arrest. On the specific issue of exigent circumstances, the officers
argue that once they saw Gonzaga with the marijuana joint they were justified in
searching the apartment, including in drawers and cabinets, for additional drugs
because they reasonably believed that Feliciano would attempt to destroy any
remaining drug evidence and they were also otherwise concerned that there might
be readily accessible drugs that posed a risk to the safety of the children. 3
3
Feliciano maintains that we lack jurisdiction over this interlocutory appeal because the
officers’ challenge to the denial of qualified immunity centers on a number of disputed issues of
material fact, including whether they actually smelled marijuana coming from the apartment, saw
Gonzaga holding a joint, or found marijuana that was already in her home before their arrival.
Although we do lack interlocutory jurisdiction under 28 U.S.C. § 1291 when the only issues
appealed in a qualified immunity case are evidentiary issues about which facts a party may, or
may not, be able to prove at trial, we have jurisdiction where the district court’s denial of
qualified immunity is based, even in part, on a question of law. Crenshaw v. Lister, 556 F.3d
1283, 1288–89 (11th Cir. 2009); Cottrell v. Caldwell, 85 F.3d 1480, 1484–85 (11th Cir. 1996).
And that includes the district court’s determination in this case that the officers were not entitled
to qualified immunity under a given set of facts. See Cottrell, 85 F.3d at 1484–85. Moreover, in
the course of deciding such an interlocutory appeal, we may resolve any factual issues that are
“part and parcel” of the core legal issues. Id. at 1486. The requirement that the evidence be
viewed in the light most favorable to the plaintiff can itself create an issue of law. Id. at 1486
n.3. We do have jurisdiction over this appeal.
12
Case: 12-11397 Date Filed: 02/05/2013 Page: 13 of 21
A.
The Fourth Amendment protects “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures.” U.S. Const. Amend. IV. The “chief evil” against which the Fourth
Amendment is directed is a government agent’s warrantless entry into a person’s
home. Payton v. New York, 445 U.S. 573, 585, 100 S. Ct. 1371, 1379 (1980). A
warrantless and nonconsensual entry into a person’s home, and any resulting
search or seizure, violates the Fourth Amendment unless it is supported by both
probable cause and exigent circumstances. See id. at 587–90, 100 S.Ct. at 1381–
82; United States v. Tovar-Rico, 61 F.3d 1529, 1534–35 (11th Cir. 1995); United
States v. Tobin, 923 F.2d 1506, 1510 (11th Cir. 1991) (en banc).
Probable cause to arrest exists when the facts and circumstances within an
officer’s knowledge are “sufficient to warrant a reasonable belief that the suspect
had committed or was committing a crime,” Skop, 485 F.3d at 1137, while
probable cause to search requires a “fair probability that contraband or evidence of
a crime will be found in a particular place,” Tobin, 923 F.2d at 1510 (quotation
marks omitted). Exigent circumstances, in turn, arise when “the inevitable delay
incident to obtaining a warrant must give way to an urgent need for immediate
action.” United States v. Burgos, 720 F.2d 1520, 1526 (11th Cir. 1983). We have
held that the “presence of contraband without more does not give rise to exigent
13
Case: 12-11397 Date Filed: 02/05/2013 Page: 14 of 21
circumstances,” though an exigent circumstance may arise “when there is danger
that the evidence will be destroyed or removed.” Tobin, 923 F.2d at 1510
(quotation marks omitted). The exigency question is whether the facts would lead
an objectively “reasonable, experienced agent to believe that evidence might be
destroyed before a warrant could be secured.” Id. (quotation marks omitted).
Nevertheless, in cases involving arrests or warrantless searches or seizures,
law enforcement officers are entitled to qualified immunity if they had even
arguable probable cause.4 See Swint v. City of Wadley, Ala., 51 F.3d 988, 996
(11th Cir. 1995); Eubanks v. Gerwen, 40 F.3d 1157, 1160 (11th Cir. 1994).
Arguable probable cause exists if “reasonable officers in the same circumstances
and possessing the same knowledge as the Defendants could have believed that
probable cause existed.” Swint, 51 F.3d at 996 (quotation marks omitted).
B.
We agree with the district court’s ultimate conclusion that the officers are
not entitled to summary judgment on Feliciano’s Fourth Amendment claim on the
basis of qualified immunity, though not for the same reasons articulated by the
district court. See Parks v. City of Warner Robins, Ga., 43 F.3d 609, 613 (11th
4
The initial inquiry in a qualified immunity case is whether the government officials
being sued were “acting within the scope of [their] discretionary authority when the allegedly
wrongful acts occurred.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (quotation marks
omitted). Here, there is no dispute that the defendants were acting within their discretionary
authority when they entered and searched Feliciano’s residence.
14
Case: 12-11397 Date Filed: 02/05/2013 Page: 15 of 21
Cir. 1995) (“[W]e may affirm the district court’s [summary judgment] decision on
any adequate ground, even if it is other than the one on which the court actually
relied.”). Instead, we conclude that, given the facts as we must view them for
purposes of summary judgment, the officers lacked even arguable probable cause
or exigent circumstances justifying their entry into Feliciano’s apartment without a
warrant or her consent.5
In concluding that the warrantless entry of Feliciano’s apartment did not
violate her clearly established Fourth Amendment rights, the district court
improperly discounted her sworn statements about what the officers could have
observed before they entered the apartment, failed to construe the facts in the light
most favorable to her, and impermissibly credited the officers’ assertions that they
5
The officers contend that we lack jurisdiction to consider whether the initial entry into
Feliciano’s apartment was unconstitutional because the district court resolved that specific issue
in their favor and they have not raised that issue in their notice of appeal or initial brief. They
are wrong about that. Under Fed. R. App. P. 3(c)(1)(b), we have jurisdiction to review any
judgments, orders, or parts thereof that are designated in a notice of appeal. See Fed. R. App. P.
3(c)(1)(b); White v. State Farm Fire and Cas. Co., 664 F.3d 860, 863–64 (11th Cir. 2011). The
officers’ notice of appeal expressly designates the denial of summary judgment “on the 42
U.S.C. § 1983 unlawful search claim in Count 6 of the Second Amended Complaint.” In Count
6, Feliciano claimed that both the initial entry and search of her apartment violated the Fourth
Amendment.
Moreover, on de novo review of a summary judgment ruling, we may not only affirm on
any ground supported by the record, see Parks, 43 F.3d at 613, but may also choose to disregard
a district court’s determination of the facts for summary judgment purposes and determine those
facts ourselves, see Cottrell, 85 F.3d at 1486 (noting that, “[i]n exercising our interlocutory
review jurisdiction in qualified immunity cases,” we may either “accept the district court’s
[factual] findings, if they are adequate,” or “make our own determination of the facts”).
Although the officers understandably do not challenge the district court’s ruling in their favor
concerning the initial entry, they do contend, as their position requires them to do, that the ruling
was correct.
15
Case: 12-11397 Date Filed: 02/05/2013 Page: 16 of 21
noticed the smell of marijuana coming from the apartment and saw Gonzaga
smoking or holding a joint. When considering a motion for summary judgment,
including one asserting qualified immunity, “courts must construe the facts and
draw all inferences in the light most favorable to the nonmoving party and when
conflicts arise between the facts evidenced by the parties, [they must] credit the
nonmoving party’s version.” Davis, 451 F.3d at 763 (quotation marks and
emphasis omitted). Even if a district court “believes that the evidence presented by
one side is of doubtful veracity, it is not proper to grant summary judgment on the
basis of credibility choices.” Miller v. Harget, 458 F.3d 1251, 1256 (11th Cir.
2006). This is because credibility determinations and the weighing of evidence
“are jury functions, not those of a judge.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255, 106 S. Ct. 2505, 2513 (1986).
Despite those fundamental precepts, the district court accepted “as
uncontroverted” and “effectively undisputed” the officers’ assertions that before
entering the apartment they smelled marijuana and saw a joint in Gonzaga’s hand,
and the court dismissed Feliciano’s testimony directly to the contrary as “bare,”
“conclusory,” and unsupported by objective evidence. The court based its ruling
on our statement in Kingsland v. City of Miami, 382 F.3d 1220, 1227 n.8 (11th
Cir. 2004), that “a court need not entertain conclusory and unsubstantiated
16
Case: 12-11397 Date Filed: 02/05/2013 Page: 17 of 21
allegations of fabrication of evidence.”6 See also Cooper v. Southern Co., 390
F.3d 695, 745 (11th Cir. 2004) (holding that summary judgment was appropriate
where the plaintiff relied on conclusory assertions that were based entirely on her
own subjective beliefs), overruled on other grounds, Ash v. Tyson Foods, Inc., 546
U.S. 454, 457–58, 126 S. Ct. 1195, 1197–98 (2006); Stewart, 232 F.3d at 851
(holding that “bare and self-serving” allegations that are not based on personal
knowledge are inadequate to survive summary judgment).
But Feliciano’s sworn statements that Gonzaga was not holding anything in
his hands when he emerged from the bedroom into the officers’ view, that neither
she nor Gonzaga was smoking marijuana, and that there was no marijuana odor in
the apartment are not conclusory. They are non-conclusory descriptions of
specific, discrete facts of the who, what, when, and where variety. They describe
the external world as Feliciano observed it at the time and are based on her first-
hand personal knowledge, not her subjective beliefs. And they directly contradict
the officers’ assertions about what they observed before and after they entered the
apartment. The contradiction presents a classic swearing match, which is the stuff
of which jury trials are made.
6
Kingsland actually reversed a grant of qualified immunity to officers on a Fourth
Amendment claim for false arrest, which makes the quoted statement dicta, though we do not
dispute the correctness of that statement. See Kingsland, 382 F.3d at 1231–34; see also United
States v. Kaley, 579 F.3d 1246, 1253 n.10 (11th Cir. 2009) (explaining that dicta includes “those
portions of an opinion that are not necessary to deciding the case then before us,” while the
holding of a case is “comprised both of the result of the case and those portions of the opinion
necessary to that result”) (quotation marks omitted).
17
Case: 12-11397 Date Filed: 02/05/2013 Page: 18 of 21
To be sure, Feliciano’s sworn statements are self-serving, but that alone does
not permit us to disregard them at the summary judgment stage. As we stated in
Price v. Time, Inc., 416 F.3d 1327, 1345 (11th Cir. 2005), “[c]ourts routinely and
properly deny summary judgment on the basis of a party’s sworn testimony even
though it is self-serving.” Or as Justice Bleckley put it, the law allows that
“[i]nterest and truth may go together.” Davis, 60 Ga. at 333. Besides, Feliciano’s
sworn statements are no more conclusory, self-serving, or unsubstantiated by
objective evidence than the officers’ assertions that they smelled marijuana coming
from her apartment and saw Gonzaga smoking or holding a joint. While it is
undisputed that Gonzaga was arrested and charged with possession of marijuana,
those charges were dismissed after none of the officers appeared in court, and there
is no physical evidence, at least none that survives, to show that marijuana was
present in Feliciano’s apartment. The substance that the officers purportedly
seized was never tested and has long since been destroyed. And Feliciano’s
interest in obtaining a judgment against the officers is not different in kind from
their interest in preventing her from doing that.
The officers fault Feliciano for failing to explain how she could see what
Gonzaga was holding in his hands (or not holding in his hands according to her)
because, they say, she was facing and speaking to them at the time. As a general
principle, a plaintiff’s testimony cannot be discounted on summary judgment
18
Case: 12-11397 Date Filed: 02/05/2013 Page: 19 of 21
unless it is blatantly contradicted by the record, blatantly inconsistent, or incredible
as a matter of law, meaning that it relates to facts that could not have possibly been
observed or events that are contrary to the laws of nature. See Scott v. Harris, 550
U.S. 372, 380–81, 127 S. Ct. 1769, 1776 (2007) (holding that a court should not
adopt a party’s version of the facts when it is “blatantly contradicted by the record”
in the form of videotaped evidence); Holley Equip. Co. v. Credit Alliance Corp.,
821 F.2d 1531, 1537 (11th Cir. 1987) (concluding that a plaintiff’s testimony could
not be disregarded on summary judgment because the discrepancies in that
testimony were not “incredible as a matter of law” or “blatantly inconsistent”);
United States v. Flores, 572 F.3d 1254, 1263 (11th Cir. 2009) (noting that
testimony is only incredible as a matter of law “if it relates to facts that the witness
could not have possibly observed or events that could not have occurred under the
laws of nature”) (quotation marks omitted). There is nothing in the record in this
case to rule out the possibility that Feliciano turned her head or body, momentarily,
to look at Gonzaga as he walked out of the bedroom. The officers imply that she
did not, but Feliciano’s testimony implies that she did.
In affirming the grant of summary judgment against the officers, we have
not forgotten about the tip supplied by the neighbor, which brought the officers to
the apartment to begin with. Whether an informant’s tip can give rise to probable
cause or arguable probable cause depends on the totality of the circumstances,
19
Case: 12-11397 Date Filed: 02/05/2013 Page: 20 of 21
particularly the informant’s veracity, reliability, and basis of knowledge, as well as
any independent corroboration of the details of the tip. Ortega v. Christian, 85
F.3d 1521, 1525 (11th Cir. 1996). We need not go into all of that because the
officers conceded at oral argument that the tip alone was not enough to justify their
entry into the apartment or their search inside it, and we accept that concession for
purposes of this case.
Nor have we forgotten Nash’s argument that he is entitled to summary
judgment because he did not personally participate in the search once inside the
apartment. Part of Feliciano’s claim, however, is that the officers, including Nash,
“forcibly entered and invaded [her] home” in violation of her Fourth Amendment
rights. The evidence, viewed in the light most favorable to Feliciano, shows that
Nash, as well as the other officers, did that. See Kirk v. Louisiana, 536 U.S. 635,
638, 122 S. Ct. 2458, 2459 (2002) (emphasizing that “the Fourth Amendment has
drawn a firm line at the entrance to the house,” such that “police officers need
either a warrant or probable cause plus exigent circumstances in order to make a
lawful entry into a home”) (quotation marks omitted). We affirm the denial of
summary judgment to Nash as well as to the other officers.
20
Case: 12-11397 Date Filed: 02/05/2013 Page: 21 of 21
V.
For these reasons, we affirm the district court’s denial of summary judgment
on the basis of qualified immunity, albeit for reasons other than those upon which
it relied.
AFFIRMED.
21 | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1001594/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 00-6061
DAVID HOWARD POSEY,
Petitioner - Appellant,
versus
STEVEN DEWALT, Warden,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern Dis-
trict of Virginia, at Alexandria. T.S. Ellis, III, District Judge.
(CA-98-834)
Submitted: May 11, 2000 Decided: May 18, 2000
Before MURNAGHAN, LUTTIG, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
David Howard Posey, Appellant Pro Se. Leslie Bonner McClendon,
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:
David Howard Posey appeals from the district court’s order
denying relief on his 28 U.S.C. § 2241 (1994) petition. In his pe-
tition, Posey sought reclassification to a minimum security status
and reassignment to a prison camp.* Because Posey is no longer in
federal custody, the relief he asked for cannot be granted. Ac-
cordingly, we dismiss the appeal as moot. 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
*
Posey was a federal prisoner at the time he filed his
petition.
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2892585/ | NO. 07-03-0210-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
MARCH 25, 2005
______________________________
JIMMIE W ILLIAMSON, ET AL., APPELLANTS
V.
BETTY COOK AND DENNIS COOK, APPELLEES
_________________________________
FROM THE DISTRICT COURT OF JASPER CO UNTY;
NO. 21,314; HONORABLE JOE BOB GOLDEN, JUDGE
_______________________________
Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINION
Appellants Jim mie W illiam son, his wife Mary W illiamson, and Gary Gatlin, trustee
(collectively W illiamson) challenge the trial court’s judgment setting aside two trustee’s
deeds on private foreclosures dated June 1, 1999 and August 3, 1999, and awarding
W illiamson the sum of $125,000 and appellees Betty Cook and Dennis Cook $75,000 from
$200,000 in fire insurance proceeds tendered to the clerk of the court. By points one, two,
three, and four, W illiamson contends the trial court erred in submitting questions one, two,
and three. By his remaining points, he contends 5) the evidence was factually insufficient
to support the jury findings to all the points, 6) the trial court erred in refusing his requested
questions 1 through 6; 7) there was no evidence to show that he did not demand any
excessive amounts from the Cooks, 8) there was no evidence that he refused to accept the
pay-off amount of $122,104.57 in April or May 1999, and 9) there was no evidence for the
court to render judgment based upon the “fair” division of the $200,000 insurance proceeds.
W e affirm.
On February 17, 1995, the Cooks executed a prom issory note in the amount of
$117,000 payable to Jim mie Elwin W illiam son and Mary Eilene W illiamson in m onthly
installments with a final balloon payment. Payment of the note was secured by a vendor’s
lien and deed of trust. W hen the Cooks were unable to make the payments, the parties
agreed they would sign a new note for $115,835.66. However, the Cooks defaulted on the
new note. After the posting of a notice of foreclosure and filing of bankruptcy by the Cooks,
W illiamson comm enced efforts to collect the balance by private foreclosure or otherwise.
During this phase, Dennis Cook converted his chapter 13 bankruptcy to a chapter 7
proceeding. On June 1, 1999, the trustee executed a deed upon private foreclosure
conveying the undivided interest of Dennis Cook to W illiamson. Then, on August 3, 1999,
2
the trustee executed a deed upon private foreclosure conveying the undivided one-half
interest in the property of Betty Cook to W illiamson.
After the August 3 trustee’s sale, the Cooks filed an original petition to set aside the
two trustee’s sales and sought a declaration that no default existed. Among other things,
they alleged the parties had agreed the Cooks would be given time to obtain other financing
and were not in default. Before W illiamson filed his answer, the residence on the property
was totally destroyed by a fire on October 17, 1999. Williamson answered by general denial
but did not seek affirmative relief nor allege any defenses. After a question of arson was
settled, the fire insurance company interplead $200,000 subject to judgm ent of the court. 1
Thereafter, neither party amended nor supplemented their pleadings to state claims for
relief or address the appropriate disposition of the insurance proceeds.
After presentation of the evidence, the trial court denied W illiamson’s six requested
issues and submitted three questions to the jury. 2 The jury found (1) the am ounts claimed
1
The parties do not provide any information regarding the settlement with the
insurance company on the fire loss. Moreover, the record does not include the terms of the
settlement between the parties and the insurance company or any pleadings, orders, or
other information regarding the deposit of $200,000 into court or conflicting claims thereto.
2
Question One. W ere the amounts being claimed by W illiamson at the time of the
foreclosure sales on June 1, 1999 and August 3, 1999 excessive?
Question Two. Did W illiamson refuse to accept the pay-off amount of $122,104.57
in April or May of 1999?
Question Three. W hat is the fair division of the $200,000.00 insurance settlement
money?
3
by W illiamson were excessive, (2) W illiamson refused to accept a pay-off of $122,104.57
in April or May 1999, and (3) disbursement of $75,000 to Betty Cook and $125,000 to
W illiamson would be “the fair division” of the $200,000. By its judgment, the trial court set
aside the trustee’s deeds of June 1, 1999 and August 3, 1999, and ordered that W illiamson
recover $125,000 plus accrued interest, and Betty Cook be awarded $75,000 plus accrued
interest.
W e first note the rules applicable to our review of this appeal. As a court of appeals,
we may not reverse a trial court’s judgment in the absence of properly assigned error. See
San Jacinto River Authority v. Duke, 783 S.W .2d 209, 210 (Tex. 1990). It is well settled that
an appellate court should not decide a case on a theory different from that on which it was
plead and tried. American Mut. Liability Ins. v. Parker, 144 Tex. 453, 191 S.W .2d 844, 848
(1945) (on reh’g); El Paso Environ. Systems v. Filtronics, 609 S.W .2d 810, 813
(Tex.Civ.App.--El Paso 1980, writ ref’d n.r.e.). Pleadings frame the issues for
determination. See Murray v. O & A Express, Inc., 630 S.W .2d 633, 636 (Tex. 1982). Thus,
we will consider the issues raised by written pleadings and in the context of the theory on
which the case was tried.
Addressing W illiamson’s issues in a logical rather than sequential order, we first
consider points four and nine,3 by which he asserts error in the submission of question three
3
Issue nine is the same as issue four.
4
and point six, by which he asserts trial court error in denying his requested six issues.4
W illiamson suggests that question three should have been submitted as per his question
six, to-wit: what sum of money is owed to W illiamson by the Cooks on the note in question.
W e disagree.
Under Rules 277 and 278 of the Texas Rules of Civil Procedure, the trial court shall
subm it the questions to the jury upon broad form questions which are raised by the written
pleadings and the evidence. Submission of questions is a matter within the discretion of
the trial court and its discretion is subject only to the requirement that the questions
submitted must (1) control the disposition of the case, (2) be raised by the pleadings and
the evidence, and (3) properly submit the disputed issues for the jury’s determination. See
Lee-W right, Inc. v. Hall, 840 S.W .2d 572, 577 (Tex.App.--Houston [1 st Dist.] 1992, no writ);
Lesser v. Allums, 918 S.W .2d 81, 87 (Tex.App.--Beaumont 1996, no writ).
Because the am ount owing on the promissory note was not raised by the written
pleadings of either party, the trial court did not err in denying the six issues requested by
W illiamson. Dion v. Ford Motor Co., 804 S.W .2d 302, 310 (Tex.App.--Eastland 1991, writ
denied). W illiam son does not present any legal authority governing the allocation of
4
Six issues summarized as
1. Do you find that the Cooks were not in default?
2. and 3. Do you find that the Cooks were not in default of any obligation or
covenant owed to W illiamson at the time of the two foreclosures?
4. and 5. Did W illiamson make an excessive demand on August 3, 1999 and
May 1999?
6.W hat sum of money is owed to W illiamson by the Cooks?
5
insurance proceeds in this type situation. Moreover, in the absence of evidence to show
the terms of the settlement agreement with the insurance company upon which the funds
were tendered into court and the absence of pleadings stating the claims of the parties, we
are unable to hold the trial court abused its discretion in submitting question three as
submitted. Points of error four, six, and nine are overruled.
By point five, Williamson contends the trial court erred in entering judgment based
upon the jury’s findings to special issues because the evidence is factually insufficient to
support the jury’s findings to all of the issues submitted. Although the point was presented,
it is not developed nor argued in the body of the brief. Accordingly, his contention is waived.
W arehouse Partners v. Gardner, 910 S.W .2d 19, 26 (Tex.App.--Dallas 1995, writ denied);
Howell v. T S Com munications, Inc., 130 S.W .3 515, 518 (Tex.App.--Dallas 2004, no pet.).
Point of error five is overruled.
By his remaining points one, two, three, seven, and eight, W illiamson contends there
was no evidence, or alternatively, the finding was against the great weight and
preponderance of the evidence that he claim ed excessive dem ands in connection with the
private foreclosures sales in June and August 1999, or that he refused to accept the pay-off.
W illiamson did not, by special exception or otherwise, challenge the sufficiency of
the Cooks’ pleading to raise sufficient grounds, which according to substantive law, would
6
be sufficient to authorize the trial court to set aside the trustee’s deeds.5 Here, W illiamson
does not challenge the trial court’s action in setting aside the trustee’s deeds nor submit any
legal authority to support any argument that the trial court erred in doing so. Accordingly,
since question three was not conditionally submitted, the answers to questions one and two
do not have any application to the division of the $200,000.
Moreover, before we may reverse a judgment and order a new trial we must find that
the error complained of amounted to such a denial of W illiamson’s rights as was reasonably
calculated to cause and probably did cause the rendition of an improper judgment or
prevented him from presenting the case on appeal. Tex. R. App. P. 44.1. In Dennis v.
Hulse, 362 S.W .2d 308, 309 (Tex. 1962), the Court held that an appellant must show the
error probably did cause the rendition of an improper judgm ent. See also Knight v. Hicks,
505 S.W .2d 638, 644 (Tex.App.--Amarillo 1974, writ re’fd n.r.e.); Aquamarine Associates
v. Burton Shipyard, 645 S.W .2d 477, 482 (Tex.App.--Beaumont 1982), aff’d, 659 S.W .2d
820 (Tex. 1983). In Lorusso v. Mem bers Mut. Ins. Co., 603 S.W .2d 818, 820 (Tex. 1980),
the Court held that the harmless error rule applies to all errors in that it draws no distinction
as to the type of errors involved in its requirement for reversal. Notwithstanding Rule 44.1
and the applicable cases, W illiamson does not present a challenge to the trial court’s action
in setting aside the trustee’s deeds or otherwise demonstrate that any alleged error was
reversible. Accordingly, points one, two, three, seven, and eight are overruled.
5
Because the record does not show that any exceptions were brought to the attention
of the trial judge per Tex. R. Civ. P. 90, any defects in the pleadings were waived.
7
Having overruled all of W illiamson’s points, the judgment of the trial court is affirmed.
Per Curiam
Johnson, C.J., not participating.
8 | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2892591/ | NO. 07-04-0420-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
MARCH 24, 2005
______________________________
TAUNTON CORPORATION D/B/A MIDNIGHT RODEO, APPELLANT
V.
MARY PHILLIPS, INDIVIDUALLY AND AS NEXT FRIEND OF
TYLER PHILLIPS, A MINOR, APPELLEE
_________________________________
FROM THE 99TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2003-522,239; HONORABLE MACKEY K. HANCOCK, JUDGE
_______________________________
Before QUINN and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINION
Taunton Corporation, d/b/a Midnight Rodeo, appellant, appeals the Order denying appellant’s Motion to Set Aside Default Judgment/Motion for New Trial signed on July 2, 2004, and the Default Judgment signed on March 3, 2004. We will dismiss the appeal.
We are obligated to determine,
sua sponte
, issues affecting our jurisdiction over an appeal.
New York Underwriters Ins. Co. v. Sanchez
, 799 S.W.2d 677, 678 (Tex. 1990). Subject to limited exceptions not applicable here, our appellate jurisdiction is limited to review of final orders and judgments.
Lehmann v. Har-Con Corp
., 39 S.W.3d 191, 195 (Tex. 2001). To be final and appealable, a judgment must dispose of all issues and parties in the case.
Id.
The record shows appellee filed suit against appellant and Clear Channel Broadcasting, Inc. d/b/a KQRB 99.5 The Bear.
The judgment appellant seeks to challenge in this appeal recites it “is final, disposes of all claims against Defendant, Tauton [sic], Corporation, d/b/a/ Midnight Rodeo and is not appealable.” The judgment made no disposition of appellee’s claims against Clear Channel Broadcasting and the record does not contain an order severing the claims against either defendant. The order denying appellant’s
Motion to Set Aside Default Judgment/Motion for New Trial
makes no disposition of the claims against Clear Channel Broadcasting. This record fails to show either of the trial court actions appellant seeks to challenge in this appeal is final and appealable.
Additionally, appellant’s brief was due no later than February 25, 2005. By letter dated March 3, 2005, we notified appellant that the due date for the brief had passed, that the brief had not been filed and no motion for extension of time to file had been received by the court. Citing Texas Rule of Appellate Procedure 38.8, the letter also notified appellant that the appeal would be subject to dismissal unless a response reasonably explaining its failure to file a brief, together with a showing that the appellee has not been significantly injured by the failure, was submitted by March 14, 2005. Appellant has not filed such a response, nor has it since submitted a brief or a motion for extension of time.
Accordingly, we dismiss the appeal for want of jurisdiction and want of prosecution. Tex. R. App. P. 38.8(a)(1); 42.3(a),(b).
James T. Campbell
Justice | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2896258/ | NO. 07-07-0259-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
DECEMBER 29, 2008
______________________________
TIMOTHY SHAWN MAJORS, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;
NO. 53,992-E; HON. ABE LOPEZ, PRESIDING
_______________________________
Before CAMPBELL, HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
          Appellant, Timothy Shawn Majors, was convicted, after a jury trial, of the offense of
unlawful possession of a firearm by a felon, enhanced by two prior felony convictions. The
same jury found the allegations of both prior felony convictions to be true and sentenced
appellant to 78 years in the Institutional Division of the Texas Department of Criminal
Justice. Appellant contends through three issues that the judgment of the trial court should
either be reversed and remanded or a judgment of acquittal should be entered.
Disagreeing, we will affirm the trial courtâs judgment.
Factual and Procedural Background
          On July 1, 2006, appellant and Alicia Choudry were at an after hours club in
Amarillo, Texas. Before the incident in question, appellant and Choudry had previously
had a relationship that had terminated. Appellant and Choudry had a disagreement inside
the club and Choudry went outside. Appellant came out and another exchange of words
occurred. Choudry, who had been sitting on a car, stood up and stepped toward appellant
who then slapped her. Choudry told appellant that she was going to call the police. At that
time, appellant went to a vehicle, identified as belonging to his girlfriend, and retrieved,
what was described by Choudry, as a gun. According to Choudry, appellant was waving
the gun around daring Choudry to call the police. Choudry left the scene after appellant
began waving the gun around.
          Choudry went to the police and gave a statement on July 10, 2006. In that
statement, Choudry recounted the events of July 1, 2006, and identified the gun appellant
was waving as a black and white semi-automatic, similar to the gun possessed by the
officer who took her statement. The day after Choudry gave her statement, she returned
to the police with Lillian Gentry. Gentry executed a statement that corroborated the facts
given in Choudryâs statement. Subsequently, both Choudry and Gentry executed other
statements recanting their original statements. Prior to trial, another witness, Stacy Jones,
came forward claiming to have been present at the scene and further stating that appellant
did not ever have a gun on the night in question. However, Jones later testified that she
was not present at the club on the night of the incident and that appellant had asked her
to give a statement saying she was present.
          Prior to trial, appellant filed a motion in limine requesting that the State be required
to approach the bench prior to any testimony about an alleged incident of retaliation toward
Choudry. The court granted the motion. Additionally, appellant had filed a pre-trial motion
for notice of the Stateâs intent to use evidence of extraneous offenses. In response, the
State filed a notice of intent to use the retaliation evidence. However, the Stateâs notice
was filed the day voir dire began. During Choudryâs testimony, appellant vigorously cross-examined her and assailed her credibility through the production of two other statements
signed by her that recanted most of her original statement. Because appellant was also
able to show that he was Choudryâs immediate supervisor at work, appellant further
attacked Choudryâs credibility and questioned her about appellant having reprimanded her
at work. As a result of the cross-examination of Choudry, the State approached the bench
and requested permission to question Choudry about the retaliation incident. After hearing
the evidence outside the presence of the jury, the trial court allowed the testimony. This
testimony showed that, after the charges had been filed against appellant, Choudry was
at the club where the incident occurred and met up with appellant and his then girlfriend.
Choudry testified that appellant had his girlfriend fight Choudry and, as a result, Choudry
was beaten.
          After hearing all of the evidence, the jury convicted appellant of the charge of felon
in possession of a firearm. Prior to commencing the punishment phase of the trial,
appellant filed a motion to quash the second enhancement paragraph. The State agreed
that it could not use that offense as an enhancement and requested permission to use
another felony as the second enhancement. Appellant objected claiming that the State
was attempting to amend the indictment. After hearing argument, the trial court granted
a one day recess to appellant. The next day, the trial court ruled that the State could use
the other felony conviction as the second enhancement, to which appellant pled âNot True.â
The jury found that the enhancements were true and assessed a sentence of 78 years
confinement. Appellant subsequently gave notice of appeal.
          Through three issues, appellant contends that: 1) the evidence is legally and
factually insufficient to sustain the judgment of conviction, 2) the trial court erred in
admitting the evidence of retaliation in violation of Rule 404(b) of the Texas Rules of
Evidence, and 3) the trial court erred in permitting the State to amend the second
enhancement paragraph of the indictment after the trial had commenced. We disagree
with appellant and will affirm the judgment of the trial court.
Sufficiency of the Evidence
          Appellant contends that the evidence was not legally nor factually sufficient to
sustain the conviction. When both legal and factual sufficiency are attacked, we must first
address the issue of legal sufficiency. See Clewis v. State, 922 S.W.2d 126, 133
(Tex.Crim.App. 1996). If the evidence is legally sufficient, we then review the factual
sufficiency challenge. See id. In assessing the legal sufficiency of the evidence, we review
all the evidence in the light most favorable to the verdict to determine whether any rational
trier of fact could have found the essential elements of the offense beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Ross
v. State, 133 S.W.3d 618, 620 (Tex.Crim.App. 2004). In conducting a legal sufficiency
review, an appellate court may not sit as a thirteenth juror, but rather must uphold the juryâs
verdict unless it is irrational or unsupported by more than a mere modicum of evidence.
Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988).
          When an appellant challenges the factual sufficiency of the evidence supporting his
conviction, the reviewing court must determine whether, considering all the evidence in a
neutral light, the jury was rationally justified in finding the appellant guilty beyond a
reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). In
performing a factual sufficiency review, we must give deference to the fact finderâs
determinations if supported by evidence and may not order a new trial simply because we
may disagree with the verdict. See id. at 417. As an appellate court, we are not justified
in ordering a new trial unless there is some objective basis in the record demonstrating that
the great weight and preponderance of the evidence contradicts the juryâs verdict. See id.
Additionally, an appellate opinion addressing factual sufficiency must include a discussion
of the most important evidence that appellant claims undermines the juryâs verdict. Sims
v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).
          To convict someone of the offense of felon in possession of a firearm, the State
must prove that 1) appellant, 2) intentionally or knowingly, 3) possessed a firearm, 4) away
from the premises where appellant resided, and 5) that appellant had been previously
convicted of a felony offense. See Tex. Penal Code Ann. § 46.04(a)(2) (Vernon 2004).
A review of appellantâs brief indicates that appellant is either claiming the evidence is
insufficient as to the possession element of the offense or that the evidence is insufficient
to prove that what appellant had in his possession was a firearm. This observation is made
because appellant cites the court to several cases that deal with proof of possession where
the defendantâs possession of the contraband item was not exclusive or more than one
person had access to the contraband. See Coleman v. State, 188 S.W.3d 708, 720-21
(Tex.App.âTyler 2005, pet. refâd). However, the record is clear about one aspect of the
case, there is no evidence that the item possessed by appellant was in the care, custody,
or control of anyone else. For this reason, those cases cited by appellant are not relevant
to our determination of the case. The sole issue at trial and on appeal is, did appellant
have a firearm in his hands on the occasion in question. Appellant, through cross-examination of the witnesses presented by the State, attempted to prove that the primary
witness, Choudry, was mad at appellant and had invented the allegation that appellant had
a firearm in his hands at the time of the incident in question. Further, through cross-examination of both Choudry and Gentry, appellant attempted to show the jury that each
had lied on their original statements and had subsequently executed additional statements
recanting those portions of the original statement that alleged appellant had a handgun in
his possession on the night in question. Further, appellantâs contention is that the evidence
regarding the item in his hand on the night in question is not legally or factually sufficient
to meet the definition of a firearm under the Texas Penal Code. See § 46.01(3).
          A review of the evidence reveals that both Choudry and Gentry admitted signing
more than one statement. However, Choudry testified that the first statement was a
truthful account of the events on the evening in question. Although she was vigorously
cross-examined, she maintained that appellant did have in his possession a gun. She
described the gun as being like the one the officer who took her statement had, only
smaller. The officer who took Choudryâs original statement testified that, at the time of the
statement, he carried a black Sig Sauer model 220 that was black with a silver slide. While
admitting she had made subsequent statements that seemed to contradict both her
testimony in court and the original statement, Choudry alleged she signed the subsequent
statement because of fear of appellant. After the cross-examination of Choudry, the State
presented evidence of an alleged attempt at retaliation directed toward Choudry by
appellant. This testimony was that appellant had directed his then current girlfriend to
challenge Choudry to a fight. The testimony was that appellant was present when the fight
occurred and was encouraging his girlfriend throughout the fight. As a result of the fight,
Choudry was beaten.
          Gentry originally gave a statement that said that appellant had in his possession a
gun that looked like the one the officer who took her statement had on his person. The
same officer took both statements. However, Gentry gave subsequent statements that
claimed she never saw a gun and that Choudry had told her what to say when she gave
her first statement. Gentryâs testimony was that her subsequent statements were the true
facts that occurred and that she never saw appellant with a gun.
          The State was able to produce testimony that appellant was known to carry a gun.
This testimony came from Choudry and from another former girlfriend of appellant, Stacy
Jones. Jones also testified that, during the time she was appellantâs girlfriend, she
executed a statement claiming to have been present at the scene on the evening in
question and that appellant never had a gun. She testified that those facts were not true
and she had not been at the scene on the evening in question, but that she prepared the
statement at appellantâs specific insistence.
          Finally, appellant presented testimony of Clint Haider, his employer, that appellant
was the former supervisor of Choudry. Haider further testified that he had observed
Choudry being insubordinate to appellant. As a result of this incident, Choudry was
reprimanded and was going to be fired, however, she quit before she was terminated.
According to appellant, this event was the catalyst for Choudryâs attempt to have charges
filed against him.
          When conducting our legal sufficiency review, we must view the evidence in the light
most favorable to the verdict. Jackson, 443 U.S. at 319; Ross, 133 S.W.3d at 620. The
jury had Choudryâs in-court testimony and her original statement indicating that appellant
had a gun. Viewing this evidence in the light most favorable to the verdict, there is
sufficient evidence that appellant had in his possession on the night in question a gun.
Further, the testimony regarding the description of the gun was legally sufficient to prove
it was a firearm. See Campbell v. State, 633 S.W.2d 592, 594 (Tex.App.âAmarillo 1982,
pet. refâd). Therefore, we cannot say that the jury acted irrationally in convicting appellant.
          On the issue of the factual sufficiency of the evidence, the question comes down to
witness credibility. Appellant clearly relies on the conflicting testimony to support his
allegation of factual insufficiency. The credibility of witness testimony is a subject matter
that the jury is uniquely qualified to determine. See Maestas v. State, 963 S.W.2d 151,
156 (Tex.App.âCorpus Christi 1998), affâd, 987 S.W.2d 59 (Tex.Crim.App. 1999). Further,
it is the juryâs duty to resolve the conflicts in the testimony. Id. Finally, simply because the
appellant presents a different version of the facts than the State does not render the
Stateâs case factually insufficient. Id. Giving the requisite deference to the juryâs resolution
of the conflicting evidence, we find that the jury was rationally justified in finding appellant
guilty beyond a reasonable doubt.
          Having found that the evidence is legally and factually sufficient, we overrule
appellantâs first issue.
Evidentiary Rulings
          Appellant next complains about the trial courtâs ruling on two specific evidentiary
matters. In the first instance, appellant complains that the trial court improperly allowed
the State to offer evidence of a subsequent offense committed by appellant toward the
primary witness, Choudry. In the second matter, appellant contends that the trial court
erred in overruling appellantâs motion for mistrial when the witness for the State, during the
guilt or innocence stage, commented that appellant had seven prior convictions. Although
appellant places both fact patterns under one issue, the two issues are not related and will
be treated separately.
Retaliation
          At a pre-trial hearing, appellant filed a motion in limine requesting the trial court to
order the State to approach the bench prior to eliciting testimony about a number of
different matters. One of the issues covered by the motion in limine was any testimony
about appellantâs alleged retaliation against the primary witness, Choudry. The trial court
ruled that he was granting the motion in limine unless somebody opens the door or
something happens. Subsequently, after extremely vigorous cross-examination of Choudry
that included testimony that she had recanted her original statement in a subsequent
statement, the State requested permission to introduce the evidence about the retaliation
charge against appellant. The State advised the court that the evidence was admissible
to show why Choudry had executed the second statement. The trial court recessed for the
evening after advising the parties he would rule the next morning. When the trial
reconvened the next morning, the trial judge advised the parties he was going to permit the
testimony. Appellant again objected on the grounds of lack of notice pursuant to Rule
404(b). However, appellant never claimed he was surprised by the evidence nor did he
request a continuance.
          Appellantâs complaint is that the trial court improperly admitted the evidence of an
extraneous offense before the jury; therefore, we will review the trial courtâs decision under
an abuse of discretion standard. See McDonald v. State, 179 S.W.3d 571, 576
(Tex.Crim.App. 2005). An appellate court should affirm the trial courtâs ruling unless it finds
that the decision is not within the zone of reasonable disagreement. See Green v. State,
934 S.W.2d 92, 102 (Tex.Crim.App. 1996). Stated another way, we will find an abuse of
discretion only when the trial court acted without reference to any guiding rules or principles
by acting arbitrarily or unreasonably. See Lyles v. State, 850 S.W.2d 497, 502
(Tex.Crim.App. 1993).
          Rule 404(b) provides that evidence of other crimes, wrongs, or acts may be
admissible during the Stateâs case-in-chief, provided that the State has, upon request of
the defendant, provided notice of intent to introduce such evidence. See Tex. R. Evid.
404(b). The record reflects that the State did not give notice of intent to use the evidence
of the retaliation case against appellant until the morning jury selection began. The State
did attempt to show that they had not become fully cognizant of the case until
approximately two weeks prior to trial. Without ruling that the Stateâs explanation of why
the notice was late was sufficient, the trial court admitted the evidence. Based upon this
record, we must conclude that the State failed to give proper notice of intent to use
evidence of extraneous offenses, crimes, or acts and, therefore, the trial court committed
error in admitting the evidence. See Hernandez v. State, 176 S.W.3d 821, 824
(Tex.Crim.App. 2005). This does not, however, mean that the error requires reversal of
the trial courtâs judgment. Rather, we must continue the inquiry and determine whether the
error in admitting the evidence had a substantial and injurious effect in determining the
juryâs verdict. Id. We determine whether the admission had an affect on appellantâs
substantial rights by a Rule 44.2(b) harm analysis for non-constitutional errors. See Tex.
R. App. P. 44.2(b).
In construing this type of error, we note that Rule 404(b) is a notice
provision aimed at preventing surprise, therefore, when conducting a Rule 44.2(b) analysis
of this type of error, the issue of surprise to appellant is a valid consideration. Hernandez,
176 S.W.3d at 825. As stated above, appellant does not claim he was surprised by the
evidence nor did he, at any time, request a continuance to prepare to defend against the
extraneous evidence. Therefore, as in the Hernandez case, we cannot say that the
admission of the evidence had an injurious effect on the juryâs determination. Id.
Accordingly, appellantâs issue regarding the retaliation evidence is overruled.
Prior Convictions Testimony
          During the examination of a Potter County Deputy Sheriff regarding fingerprints of
appellant taken for comparison purposes to prove a prior conviction, the same one alleged
for jurisdictional purposes in the indictment, the following colloquy occurred:
          State: Can you tell the jury what your results yield?
Â
Witness: Yes, sir. I received a total of seven prior felony convictionsfor an
individual by the name of Timothy Shawn Majors.
Â
Appellant immediately requested a conference at the bench where the trial court instructed
the State to instruct the witness to limit his testimony to the conviction alleged for
jurisdictional purposes. The trial court advised all parties that he was going to instruct the
jury to disregard the last question and response. The jury was so instructed. Appellant
moved for a mistrial, which the trial court denied.
          Based on this factual background, appellant contends that the testimony of the
seven prior convictions was a violation of Rule 404(b) and is, therefore, in error. Appellant
misconstrues the trial courtâs ruling. The trial court did not admit the testimony about the
seven prior convictions, rather, he instructed the jury to disregard the question and
testimony. Additionally, the objection at trial never mentions Rule 404(b) nor can it be
construed to include that objection. This leads to the inevitable conclusion that the issue
on appeal does not comport with the objection at trial. Heidelberg v. State, 144 S.W.3d
535, 537 (Tex.Crim.App. 2004). In such a case, there is nothing preserved for appeal. Id.
Accordingly, appellantâs issue regarding the testimony of prior convictions is overruled.
Â
Â
Indictment
          Appellant next contends that the trial court erred when it allowed the State to
substitute another of appellantâs felony convictions for the second enhancement paragraph,
after the trial court granted appellantâs motion to quash the second enhancement paragraph
in the original indictment. The record reflects that, after the jury convicted appellant of
unlawful possession of a firearm by a felon, appellant presented a motion to quash the
second enhancement paragraph. The State agreed that the felony conviction listed in the
second paragraph was, in fact, the same felony cited as the jurisdictional conviction for
felon in possession of a firearm and, as such, it was not permissible to use that felony as
a punishment enhancement. The trial court granted the motion to quash. The State then
announced that it was going to substitute another of appellantâs felony convictions for the
second enhancement paragraph. The felony conviction to be substituted was one listed in
the Stateâs Notice of Intention to Use Prior Convictions for Enhancement. Appellant
objected citing lack of notice and that the State was trying to untimely amend the indictment.
The trial court then granted a continuance until the next morning to give appellant an
opportunity to determine any legal reasons the State should not be allowed to substitute
one of appellantâs other felony convictions for the one listed in the second enhancement
paragraph. The following morning, after again hearing from appellant and the State, the
trial court allowed the substitution of a different final conviction in the second enhancement
paragraph. At no time that morning, either before or after the trial court ruled, did appellant
move for a continuance in order to more properly prepare a defense to the new
enhancement conviction.
          Appellant contends that the trial court overruled his motion for continuance, however,
the record does not support this contention. As stated above, the record affirmatively shows
that, after the trial court ruled that the State would be allowed to substitute a different final
felony conviction, appellant did not request a continuance.
          This becomes important because of the analysis of the Texas Court of Criminal
Appeals in Villescas v. State. See Villescas v. State, 189 S.W.3d 290, 294 (Tex.Crim.App.
2006). In Villescas, the court was dealing with what kind of notice was the State required
to give when using enhancements for punishment. Id. at 293. The intermediate appellate
court had concluded that the notice issue was of non-constitutional origin and, therefore,
when reviewing the action of the trial court, applied the non-constitutional harm analysis of
Texas Rule of Appellate Procedure 44.2(b). Id. at 292. The court determined that notice
was a due process issue and, therefore, of a constitutional nature. Id. at 294. Ultimately,
the court in Villescas decided that notice given prior to the beginning of the punishment
phase satisfies the federal constitutional due process requirement when the defendant has
no defense to the enhancement allegation and has not requested a continuance. Id.
          Applying the Villescas standard to the case before this court, we find that a one day
continuance was granted after the State first requested permission to substitute a different
felony conviction for the one alleged in the second enhancement paragraph. Further, the
record reflects that the following morning, after the court announced his decision, appellant
never indicated a need for a continuance. In fact, when asked if there was anything else
before bringing in the jury, appellant responded, âNo, Your Honor.â The trial court then
brought the jury in and asked if the State and defense were ready on punishment.
Appellant replied, without limitation, âDefense is ready, Judge.â After the enhancement
paragraphs were read, appellant pled âNot Trueâ to both paragraphs. The evidence on the
issue was presented. During the entire punishment hearing, appellant presented nothing
that could be construed as a defense to the second enhancement paragraph. Accordingly,
it appears to this court that appellantâs position is exactly the same as that described in
Villescas. Appellant did not request a continuance and had no defense to the second
enhancement paragraph. Therefore, the notice given appellant before the beginning of the
punishment hearing was sufficient. Appellantâs third issue is overruled.
Conclusion
          Having overruled appellantâs issues, we affirm the judgment of the trial court.
Â
Mackey K. Hancock
Justice
Â
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Do not publish.
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           For a party
to prevail on a motion for summary judgment he must conclusively establish the
absence of any genuine question of material fact and that he is entitled to
judgment as a matter of law. Tex. R.
Civ. P. 166a(c); Browning v. Prostok, 165 S.W.3d 336, 344 (Tex.
2005). A movant must either prove all
essential elements of his claim, MMP,
Ltd. v. Jones, 710 S.W.2d 59 (Tex. 1986), or negate at least one essential
element of the non-movant's cause of action.Â
Shaw v. Moss, 67 S.W.3d 836 S.W.3d 842 (Tex.
2001); Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644
(Tex. 1995). Once the movant has
established a right to summary judgment, the non-movant has the burden to
respond to the motion for summary judgment and present to the trial court any
issues that would preclude summary judgment.Â
Casso v. Brand, 776 S.W.2d 551, 556 (Tex.
1989); City of Houston v.
Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex. 1979); Barbouti
v. Hearst Corp., 927 S.W.2d 37, 64 (Tex.App.--Houston [1st Dist.] 1996,
writ denied). Issues that the
non-movant contends preclude the granting of a summary judgment must be
expressly presented to the trial court by written answer or other written
response to the motion and not by mere reference to summary judgment
evidence. McConnell v. Southside
School Dist., 858 S.W.2d 337, 341 (Tex. 1993). Issues not expressly presented to the trial
court in writing shall not be considered on appeal as grounds for
reversal. Tex. R. Civ. P. 166a(c). Further, all theories in support of or in
opposition to a motion for summary judgment must be presented in writing to the
trial court. Casso v. Brand, 776 S.W.2d at 553.Â
When a summary judgment does not specify or state the grounds relied on,
the summary judgment will be affirmed on appeal if any of the grounds presented
in the motion are meritorious. Western Investments, Inc. v. Urena, 162 S.W.3d 547, 550
(Tex. 2005); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).
Analysis
           As a general rule, a person who
willfully disobeys a valid court order is guilty of contempt and subject to
imprisonment for a prescribed period and until he complies with the order. Ex
parte Gorena, 595 S.W.2d 841 (Tex. 1979).Â
Relying on Ex parte Hall, 854
S.W.2d 656 (Tex. 1993), Appellant
argues she was entitled to have the merits of her case heard because the granting
of summary judgment in favor of Appellee was improper given his admission of
failure to comply with the terms of the decree by failing to pay certain
third-party debts. Ex parte Hall, however, involved an order to pay spousal and child
support which is statutorily enforceable by contempt. Id.
at 658. An order to pay a debt, however,
is not generally enforceable through contempt because it violates Article I, § 18 of the Texas Constitution's
prohibition against imprisonment for failure to pay a debt.[2]
           The
fact that a party to a divorce was ordered to pay an obligation owed to a
third-party, as part of the division of the community estate, does not
transform that obligation into one enforceable by coercive contempt. See In
re Henry, 154 S.W.3d 594 (Tex. 2005) (husband's obligation to pay past-due
property taxes, imposed as a part of the division of community property, was an
order to pay a debt owed to a third-party and, therefore, not enforceable by
confinement for contempt because to do so would violate Article I, § 18 of the
Texas Constitution's prohibition against imprisonment for failure to pay a
debt). In deciding whether a spouse's
obligation to pay a third-party debt was enforceable by contempt, the Supreme
Court distinguished those situations where specific funds to pay the debt
existed, or where particular community property from which the debt was to be
paid was specified. In each of those
situations, the spouse being awarded the property holds that property as a
constructive trustee for the benefit of the other spouse. In such a situation, failure to surrender
that property pursuant to the divorce decree would be enforceable by contempt
because it is not considered payment of a debt.Â
Id. at 597. The surrendering spouse is not paying a debt,
but rather turning over property rightfully due another under the terms of the divorce
decree. Id.
           In the
underlying case, the divorce decree did not specify what funds would be used to
pay the credit card debt or if funds were available to do so. Without identification of existing funds,
Appellee is not a constructive trustee holding property that rightfully belongs
to Appellant. Resultantly, Appellee's
obligation to make credit card payments is merely a debt owed to the credit
card companies. See generally Ex parte Chacon, 607 S.W.2d 317, 319
(Tex.Civ.App.--El Paso 1980, orig. proceeding) (noting that payment of federal
taxes is in the nature of a debt owed the government). The fact that the obligation was imposed
under the divorce decree does not transform the obligation into one enforceable
by contempt. In re Henry, 154 S.W.3d at 597-98.Â
We conclude that the imposition of certain credit card obligations on Appellee
in the divorce decree constitutes debts which are unenforceable by confinement
for contempt. See Ex parte Chacon, 607 S.W.2d at 319 (a judgment which provides
for the payment of money to be earned in the future, rather than directing
payment of money found by the court to be in existence, is not enforceable by
contempt).
           Appellant
also sought a money judgment from Appellee for the unpaid balances on the
credit cards. Notwithstanding that the
decree provided for indemnification, Appellant has not demonstrated she paid any
credit card debt imposed on Appellee by the decree. The debts are an obligation owed to the
credit card companies and not to Appellant.Â
See generally Rush v. Montgomery
Ward, 757 S.W.2d 521, 523 (Tex.App.--Houston [14th Dist.] 1988, writ
denied) (recognizing that Texas courts have consistently held that a division
of the community estate may not prejudice the rights of creditors to satisfy a
community debt). Consequently, Appellant
was not entitled to a money judgment.Â
           Appellant
also asserted by her motion for new trial that the trial court's summary
judgment did not dispose of all her claims to enforce the decree. Although she sought a clarification order in
her petition for enforcement, it was conditioned upon the trial court finding
that if any part of the order sought was not specific enough to be enforced by
contempt, it be clarified. The trial
court could not have made such a finding because the relief sought by Appellant
is prohibited by Article I, § 18 of the Texas Constitution. We conclude the trial court did not err in
granting Appellee's motion for summary judgment and overrule Appellant's sole
issue.
           Accordingly,
the trial court's summary judgment is affirmed.
Â
Â
                                                                                   Patrick
A. Pirtle
                                                                                        Justice
                                                                                      Â
[1]
A general assignment of error in granting summary judgment is permitted. See
Malooly Bros., Inc. v. Napier,
461 S.W.2d 119, 121 (Tex. 1970).
[2]
Article I, § 18
provides "[n]o person shall ever be imprisoned for debt." | 01-03-2023 | 09-08-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3812395/ | This was an action by F. E. Hardesty against the St. Louis
San Francisco Railroad Company to recover damages for the killing of certain hogs by one of the defendant's trains.
The court instructed the jury, in substance, that it was the duty of the engineer and fireman in charge of the train to keep a sharp and vigilant lookout for live stock on the track, and, in effect, instructed them that it was the duty of the defendant to use reasonable care to discover animals on the track. This instruction is assigned as error.
The hogs were killed in Tulsa county. There is no proof that the county, or subdivision thereof where the stock were killed, was exempt from the general law prohibiting animals from running at large; and there being no proof the presumption is that they were prohibited from running at large. M., K. T.Ry. Co. v. Savage, 32 Okla. 376, 122 P. 656.
The law does not require a lookout to be kept for animals on the track of a railroad company in those portions of the state not exempt from the operation of the herd law. This rule is established by a number of decisions. See A., T. S. F. Ry.Co. v. Davis Young, 26 Okla. 359, 109 P. 551; A., T. S.F. Ry. Co. v. Ward, 32 Okla. 187, 120 P. 984; M., K. T. Ry.Co. v. Savage, 32 Okla. 376, 122 P. 656; St. L. S. F. R.Co. v. Brown, 32 Okla. 483, 122 P. 136; St. L. S. F. R. Co.v. Little, 34 Okla. 298, 125 P. 459. In such cases the duty of the defendant's employees is to exercise ordinary care to avoid injuring the animals after they are discovered. *Page 684
It follows that the instruction in this case was erroneous, and as, under the evidence, it was very material, the judgment should be reversed.
By the Court: It is so ordered. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3447413/ | Affirming.
Thomas T. Ward and his wife own adjacent tracts of land, used together as a single farm, and containing in the aggregate 57 acres. Each instituted an action against the Illinois Central Railroad Company and the Chicago, St. Louis New Orleans Railroad Company, to recover damages for injuries to their respective properties. It was alleged in each petition that the defendants had wrongfully, completely, and permanently obstructed and stopped up a portion of the public road that served as a way to and from the land, and had thereby destroyed the only means of ingress and egress to and from the property, and had thereby compelled them to travel a great distance in the opposite direction, over a circuitous route, whenever it was necessary to travel to the west, north, and south of their residence located on the farm. The cases were tried together, resulting in verdicts for Thomas T. Ward and Margaret Ward in the sums of $800 and $400 respectively. The railroad companies have prosecuted an appeal from the larger judgment and have entered a motion for an appeal from the lesser one.
It is insisted (1) that the petitions fail to rate causes of action; (2) that an ex parte order appearing on the order book of the county court authorized the defendants *Page 480
to close or to obstruct the road for which appellees had no remedy; and (3) that the appellees were estopped from maintaining the actions by virtue of a deed executed and delivered by them to the appellants.
1. The appellants argue that the law of Kentucky affords no remedy to an abutting owner for an injury to his land caused by an obstruction or even the destruction of a public road. It is well settled, however, that the closing or unreasonable obstruction of a highway, street, or alley is a taking of private property within the meaning of sections 13 and 242 of the Constitution, and is forbidden except when necessary for a public use, and allowed then only upon rendering of just compensation. Henderson v. City of Lexington, 132 Ky. 390,111 S.W. 318, 33 Ky. Law Rep. 703, 22 L.R.A. (N.S.) 20; Gargan v. L. N. A. C. R. R. Co., 89 Ky. 212, 12 S.W. 259, 11 Ky. Law Rep. 489, 6 L.R.A. 340. And a property owner who is peculiarly and especially affected by reason of the obstruction of a public road or street may maintain an action independently of the remedy on behalf of the public at large, for the abatement of the obstruction, or for damages to adjacent property resulting therefrom. Layman v. Beeler, 113 Ky. 221,67 S.W. 995, 24 Ky. Law Rep. 174; Bourbon Stock Yard Co. v. Wooley, 76 S.W. 28, 25 Ky. Law Rep. 477; Salmon v. Martin,156 Ky. 309, 160 S.W. 1058; Yates v. Big Sandy Ry. Co., 89 S.W. 108, 28 Ky. Law Rep. 206; Husband v. Cotton, 171 Ky. 177,188 S.W. 380, L.R.A. 1917A, 1150; Solar Coal Co. v. Hoskins,220 Ky. 693, 295 S.W. 989.
The fact that some other means of access to the property may be available affects merely the amount and not the right to the recovery of damages. Golden v. Louisville N. R. Co., 228 Ky. 134, 14 S.W.2d 379; Lexington E. Ry. Co. v. Hargis,180 Ky. 636, 203 S.W. 525.
The appellants rely upon Bradbury v. Walton, 94 Ky. 167,21 S.W. 869, 14 Ky. Law Rep. 823; Chenault v. Collins, 155 Ky. 312, 159 S.W. 834; and Beatty v. Louisville N. R. Co.,176 Ky. 100, 195 S.W. 487, in support of the argument that an abutting owner in no event has any right of property in the continued maintenance of a public road. The language employed in the opinions in those cases must be understood in the light of the questions actually presented. In Bradbury. v. Walton, supra, a lateral public road had been regularly closed *Page 481
pursuant to statute, by an appropriate proceeding in the county court. Bradbury, by an action in the circuit court, attacked the validity of the proceeding on the ground that the statute vesting jurisdiction in the county courts to discontinue public roads was unconstitutional. The court decided that the statute was constitutional and that Bradbury, who was a party to the proceedings in the county court, was bound thereby. Cf. Walter v. Syck, 146 Ky. 181, 142 S.W. 229.
In Chenault v. Collins, supra, a proceeding was pending upon petition in the county court to bring about a change in the location of a turnpike. Mrs. Chenault filed exceptions by which she challenged the power of the county court to change the road without compensation to her for injury to her land, and pointed out some fatal irregularities in the preliminary proceedings. The court, considering the case upon an appeal, sustained the latter contention, and reversed the judgment, but upheld the power of the county court conferred by statute to decide whether or not the turnpike should be vacated in part and its location changed. Cole v. Shannon, 1 J.J. Marsh, 218; Elizabethtown L. B. S. R. R. Co. v. Jackson, 9 Ky. Law Rep. 242. The case of Beatty v. Louisville N. R. R. Co., supra, concerned a suit against the railroad to recover damages for removing its depot from a former location. The references in the opinion in that case to the public road cases were made arguendo and decided nothing respecting the obstruction of highways. The cases here presented were predicated upon a wrongful obstruction of the public road, and did not proceed upon the theory that a road had been closed or changed by a proper proceeding for that purpose.
In view of the authorities cited, it is palpable that the petitions in these cases were not subject to demurrer.
2. The appellants pleaded that they had applied to the Hickman county court and entered a motion to have a small portion of the road in question changed in accordance with a map and blueprint filed in the county court, which motion was sustained and the change ordered. The order was set forth in full, and showed upon its face that it was an ex parte order without notice to any one. It was not and did not purport to be a judgment rendered in pending proceedings authorized by or conforming to the statutes regulating the opening, closing, alteration, or location of public roads. Cf. Sections 4298, 4300, 4301, and 4302, Kentucky Statutes. *Page 482
Appellants contend that the order was authorized by section 4299, Ky. Statutes, which reads:
"With the consent of the owner or owners of the land in which a change of location is proposed to be made, given in writing, setting forth the exact changes proposed, which must be entered in the form of an agreed order of the county court and subject to the approval of the county judge, the county road engineer may change any public road in his county; Provided, such change does not materially increase the length or grade or require more work to keep the road in repair, or place the same on worse ground than it was before such change, or render the said road in any respects worse than it was before the change. Any county road engineer who shall make such change otherwise than prescribed in this chapter shall be guilty of a misdemeanor, and on conviction thereof shall be fined not less than twenty-five dollars ($25.00); and in case the county road engineer shall make such change in violation of the provisions of this section, the part of the road thus altered shall not be established as a public road, and the former location shall be continued as such."
It will be observed that the statute authorizes the county road engineer to change any public road in his county when certain conditions are fulfilled and with an important proviso that any change in violation of the provisions shall not affect the status of the old road.
The written consent of the owner or owners of the land in which a change is proposed, setting forth the exact changes contemplated, must be obtained and then entered in the form of an agreed order of the county court, and the agreement is subject to the approval of the county judge. The effectiveness and validity of the order, even for its limited purpose, is made to depend upon several conditions, and obviously affects no one not a party to it. 34 C. J. p. 525, sec. 831; 15 Rawle C. L. 314, p. 840.
The statute was referred to in the case of Gratzer v. Gertisen, 181 Ky. 626, 205 S.W. 782, 785, as providing "a quick way of changing the location of a road with the consent of the landowners affected thereby," but the proceeding in that case was based on sections 4298, 4301 and 4302, Ky. Stats. In Chenault v. Collins, *Page 483 155 Ky. 312, 159 S.W. 834, section 4299 was held inapplicable to a proceeding to discontinue a road lying between the lands of Mrs. Collins and Mrs. Chenault. The provision was mentioned casually in the case of Whitley County v. Luten Bridge Co.,208 Ky. 625, 271 S.W. 676, but no construction of the statute has been necessary in any case heretofore presented. It is apparent that neither the statute nor the order affords any authority for the obstruction of the public highway of which complaint is made in these cases. Neither of the appellees consented in writing or otherwise to the alleged agreement or its entry on the order book. The order itself is not within the purview of the statute, or a compliance with its conditions. It does not appear that the county road engineer ever did anything under it. It is argued that the writing is an order of the county court, and immune from collateral attack; but plainly that question is not presented. The statute was not observed, and the agreement, if any was made, was not a judgment of the county court, by which the appellees were affected. 34 C. J. p. 528, sec. 34; Bass v. Katterjohn, 194 Ky. 284, 239 S.W. 53; Wallace, Jr., v. Lackey, 173 Ky. 140, 190 S.W. 709. It conferred no authority upon appellants to obstruct or destroy the public road appurtenant to the farms of appellees, and which afforded access thereto. Obviously such an order, made at the instance of appellants, and solely for them, provided no defense to these actions by the appellees for incidental injury to their land by the wrongful obstruction of a public road.
In view of these facts, it is not appropriate in this case to determine or to discuss the rules respecting collateral attack upon judgments rendered by county courts in road cases, regularly pending, about which a conflict has arisen in our decisions. Cf. Potter v. Matney, 165 Ky. 269, 176 S.W. 987, and Tarter v. Wilson, 207 Ky. 535, 269 S.W. 715.
3. The estoppel relied upon by appellants is based upon a deed by which appellees conveyed to the railroad companies a small boundary of land to be used for "re location of the public highway." The consideration paid was for the land conveyed for the purpose stated, and did not affect any right of the appellees to recover damages for an injury subsequently suffered by them. Appellees did not sue the appellants because of a relocation of the public road upon the ground acquired from them for that purpose, but for a destruction of the public *Page 484
road which afforded ingress and egress to and from their farm. The argument that appellees are thus precluded from recovery in these cases is unsound. No element of estoppel is shown. A deed is never construed to operate by way of estoppel beyond the clear meaning of the words used. Newell v. Burnside Banking Co. (Ky.) 118 S.W. 267. Nothing was claimed by the appellees in derogation of their deed (Simmons v. Simmons, 150 Ky. 88,150 S.W. 59), and the transaction contained none of the essential elements of an equitable estoppel. In order to constitute an estoppel, action must have been induced that would result in prejudice to the actor if the person inducing the action should be permitted to change his position, or to pursue an inconsistent course of conduct. Trimble v. King, 131. Ky. 1, 114 S.W. 317, 22 L.R.A. (N.S.) 880; Fitzpatrick v. Baker,155 Ky. 175, 159 S.W. 675; Advance Thresher Co. v. Fishback,157 Ky. 427, 163 S.W. 228; Pemberton v. Price Temple Piano Co., 144 Ky. 523, 139 S.W. 742; Cornelius v. Kinnard, 157 Ky. 50, 162 S.W. 524; New Domain Oil Gas Co. v. Gaffney Oil Co.,134 Ky. 792, 121 S.W. 699; Stafford v. Pinson, 142 Ky. 435,134 S.W. 909; Acme Mills Elevator Co. v. Johnson, 141 Ky. 718, 133 S.W. 784; Guilfoyle's Ex'r v. City of Maysville,129 Ky. 532, 112 S.W. 666; Dennis Long Co. v. City of Louisville, 98 Ky. 67, 32 S.W. 271, 17 Ky. Law Rep. 642.
The motion for an appeal in the Margaret Ward case is denied. The judgment in each case is affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2827739/ | In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 14-1171V
Filed: July 22, 2015
Not for Publication
*************************
RONALD GORDON, *
*
*
Petitioner, * Damages Decision Based on Proffer;
* Influenza Vaccine (“Flu”);
v. * Shoulder Injury Related to
* Vaccine Administration (“SIRVA”);
* Special Processing Unit (“SPU”)
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*************************
Tara O’Mahoney, Law Offices of Chicago-Kent College of Law, Chicago, IL, for
petitioner.
Julia McInerny, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
Vowell, Chief Special Master:
On December 5, 2014, Ronald Gordon filed a petition for compensation under
the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq,2 [the
“Vaccine Act” or “Program”]. The petition alleges that as a result of a seasonal
influenza (“flu”) vaccination on December 12, 2012, petitioner suffered a Shoulder Injury
Related to Vaccine Administration [“SIRVA”]. Petition at 1. The case was assigned to
the Special Processing Unit of the Office of Special Masters.
1
Because this unpublished decision contains a reasoned explanation for the action in this case, I intend
to post it on the United States Court of Federal Claims' website, in accordance with the E-Government
Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501
note (2012)). In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to
redact medical or other information, the disclosure of which would constitute an unwarranted invasion of
privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such
material from public access.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2006).
On March 24, 2015, I issued a ruling on entitlement, finding petitioner entitled to
compensation for a shoulder injury related to vaccine administration [“SIRVA”]. On July
21, 2015, respondent filed a proffer on award of compensation [“Proffer”] indicating that
petitioner should be awarded compensation in the amount of $100,000.00. Proffer at 1.
Pursuant to the terms stated in the attached Proffer, I award petitioner a lump
sum payment of $100,000.00 in the form of a check payable to petitioner, Ronald
Gordon. This amount represents compensation for all damages that would be
available under § 300aa-15(a).
The clerk of the court is directed to enter judgment in accordance with this
decision.3
s/Denise K. Vowell
Denise K. Vowell
Chief Special Master
3
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice
renouncing the right to seek review.
2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
______________________________
RONALD GORDON, )
)
Petitioner, )
) No. 14-1171V
v. ) Chief Special Master Vowell
) ECF
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
______________________________)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
I. Items of Compensation
Based upon the evidence of record, respondent proffers that petitioner should be awarded
$100,000.00, which represents all elements of compensation to which petitioner would be
entitled under 42 U.S.C. § 300aa-15(a). 1 Petitioner agrees.
II. Form of the Award
The parties recommend that the compensation provided to petitioner should be made
through a lump sum payment of $100,000.00 in the form of a check payable to petitioner.
Petitioner agrees.
Respectfully submitted,
BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
RUPA BHATTACHARYYA
Director
Torts Branch, Civil Division
1
Should petitioner die prior to entry of judgment, the parties reserve the right to move the Court
for appropriate relief. In particular, respondent would oppose any award for future medical
expenses, future lost earnings, and future pain and suffering.
VINCENT J. MATANOSKI
Deputy Director
Torts Branch, Civil Division
MICHAEL P. MILMOE
Senior Trial Counsel
Torts Branch, Civil Division
/s/ Julia W. McInerny
JULIA W. MCINERNY
Senior Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
DATED: July 21, 2015 (202) 353-3919
2 | 01-03-2023 | 08-17-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2871797/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-04-00641-CV
CitiBank (South Dakota) N.A., Appellant
v.
Julia A. Hanke, Appellee
FROM THE DISTRICT COURT OF BASTROP COUNTY, 21ST JUDICIAL DISTRICT
NO. 24670, HONORABLE JOHN L. PLACKE, JUDGE PRESIDING
MEMORANDUM OPINION
CitiBank (South Dakota) N.A. (“CitiBank”) appeals the trial court’s dismissal of its
suit to collect a credit card debt from Julia A. Hanke. CitiBank failed to respond to a request for
disclosure and, as a result, the trial court imposed sanctions under Texas Rule of Civil Procedure 215
for abuse of the discovery process. The sanctions included, in addition to an attorney’s fees award,
the striking of CitiBank’s pleadings, resulting in dismissal of the case. We affirm in part and reverse
and remand in part for further proceedings.
Factual and Procedural Background
CitiBank sued Hanke, claiming nonpayment of a credit card account it had provided
to Hanke and seeking $7,479.63 in damages. CitiBank filed its original petition on November 4,
2003. On December 19, Hanke’s attorney sent an email to CitiBank’s attorney requesting credit card
records pertaining to the account in dispute, to which CitiBank’s attorney did not respond. On
January 16, 2004, Hanke served requests for disclosure upon CitiBank, which were due February 18
but were never answered. CitiBank’s attorney claims to have responded, but mistakenly transmitted
the responses to the wrong telecopy number. CitiBank filed a motion for summary judgment on June
9, 2004. On June 10, Hanke’s attorney emailed CitiBank’s attorney to inform him that Citibank had
not responded to the January 16 request for disclosures. Hanke’s attorney requested that CitiBank
withdraw its motion for summary judgment and threatened to file a motion for sanctions if CitiBank
did not do so. When CitiBank did not respond, Hanke filed a motion for sanctions under Texas Rule
of Civil Procedure 215 on June 24. The hearing on the motion for sanctions was set for July 28.
CitiBank did not attend the hearing on Hanke’s motion for sanctions. Citibank claims it was not
properly served with notice of the hearing; however, it received two letters, each one attached to a
copy of Hanke’s motion for sanctions, each one two sentences in length, the second sentence stating
in bold the time and date of the sanctions hearing.1
On August 3, 2004, the trial court denied CitiBank’s motion for summary judgment
and granted Hanke’s motion for sanctions. The order, citing CitiBank’s failure to respond to the
request for disclosure and to informal email requests for pertinent information, struck CitiBank’s
pleadings and awarded attorney’s fees to Hanke. The fee award followed a graduated schedule, with
$2,500 awarded for representation through the trial court level and $7,500 for each level of appellate
1
On appeal, Citibank also claims to have sent Hanke its response to her request for
disclosures before the July 28 sanctions hearing; however, the record reflects, and Citibank’s
attorney testified at the motion for new trial, that Citibank sent its response to Hanke’s request for
disclosures on September 2.
2
review, in the event the case was appealed. Citibank filed a motion for new trial, and a hearing was
held. At the close of testimony, the motion was denied.2 CitiBank appeals the order, challenging
(in a single issue) both sanctions: the fee award and the order striking its pleadings. We sustain in
part and overrule in part CitiBank’s issue.
Discussion
Standard of Review
A trial court’s ruling on a motion for sanctions is reviewed under an abuse of
discretion standard. Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004); Bodnow Corp. v. City
of Hondo, 721 S.W.2d 839, 840 (Tex. 1986); Downer v. Aquamarine Operators, Inc., 701 S.W.2d
238, 241 (Tex. 1985). The test for an abuse of discretion is not whether, in the opinion of the
reviewing court, the facts present an appropriate case for the trial court’s action, but “whether the
court acted without reference to any guiding rules and principles.” Downer, 701 S.W.2d at 241; see
also Cire, 134 S.W.3d at 839; Bodnow Corp., 721 S.W.2d at 840. The trial court’s ruling should
be reversed only if it was arbitrary or unreasonable. Cire, 134 S.W.3d at 839; Downer, 701 S.W.2d
at 242.
Discovery Sanctions
Texas Rule of Civil Procedure 215.2 allows a trial court to sanction a party for failure
to comply with a discovery order or request. Permissible sanctions include “an order striking out
pleadings” and an order requiring the disobedient party to pay “reasonable expenses, including
2
No written order appears in the clerk’s record.
3
attorney fees, caused by the failure” to obey a discovery order. Tex. R. Civ. P. 215.2(b). “Sanctions
are used to assure compliance with discovery and deter those who might be tempted to abuse
discovery in the absence of a deterrent.” Cire, 134 S.W.3d at 839; Downer, 701 S.W.2d at 242.
However, a trial court may not impose a sanction that is more severe than necessary to satisfy its
legitimate purpose. Cire, 134 S.W.3d at 839; Hamill v. Level, 917 S.W.2d 15, 16 (Tex. 1996). The
justness of a sanction is measured by two components: (1) a direct relationship must exist between
the offensive conduct and the sanction imposed, and (2) the sanction must not be excessive. Cire,
134 S.W.3d at 839; TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991).
Attorney’s Fees
In this case, the trial court did not abuse its discretion by awarding $2,500 in
attorney’s fees for representation at the trial court level in connection with the filing and prosecution
of the motion for sanctions. CitiBank failed to comply with a proper discovery request for
disclosures.3 Although Citibank claims to have sent its response to the wrong telecopy number, it
had another chance to respond after receiving Hanke’s motion for sanctions, and did not do so. The
trial court has discretion to sanction such conduct. Tex. R. Civ. P. 215.2(b). Furthermore, the
sanction for attorney’s fees in connection with filing the motion for sanctions is directly related to
the failure to respond to the request for disclosures. The fine of $2,500 at the trial court level was
3
The trial court also appeared to base its order for sanctions on Citibank’s lack of response
to Hanke’s informal email request for information. Failure to respond to an informal request is not
sanctionable under rule 215. See Tex. R. Civ. P. 215.2(b) (identifying sanctionable conduct as
failure “to comply with proper discovery requests or to obey an order to provide or permit
discovery”). However, Citibank’s failure to respond to Hanke’s formal request for disclosures
independently supports the $2,500 sanction.
4
meant to assure compliance with discovery and to deter abuse of discovery. Such a fine could
rationally have been thought to induce CitiBank to answer the request for disclosures, which it did
on September 2, thirty days after the trial court imposed sanctions. Additionally, $2,500 was not
excessive in this case, but reasonable in light of the fact that Citibank’s lack of response forced
Hanke’s attorney to prepare and file a motion for sanctions and attend a hearing for sanctions. See,
e.g., Martin v. Zieba, No. 03-03-00584-CV, 2004 Tex. App. LEXIS 3742, at *11-13 (Tex.
App.—Austin 2004, no pet.) (mem. op.) (upholding sanctions of $2,500 where appellant made
“repeated attempts to schedule hearings on a day that appellant knew [opposing] lead counsel would
be out of town”); Eldred v. Eldred, No. 03-98-00167-CV, 1999 Tex. App. LEXIS 2570, at *5-27
(Tex. App.—Austin 1999, no pet.) (not designated for publication) (upholding sanctions of $3,500
where appellant withheld information and refused deposition requests). For these reasons, we
uphold the $2,500 sanction.
However, awards of $7,500 “for representation in the Court of Appeals,” $7,500 for
“filing a petition for review” by the Supreme Court, and $7,500 for representation in the Supreme
Court “in the event a petition for review is granted” were not proper sanctions in this case.
“Although a trial court may grant appellate attorney’s fees as part of a sanctions order under Rule
215, the court must condition the award on the outcome of the appeal.” In re Ford Motor Co., 988
S.W.2d 714, 721 (Tex. 1998). “An unconditional award of appellate attorney’s fees . . . unjustly
penalizes a party for seeking mandamus relief from the trial court's sanction order.” Id. In this case,
the trial court did not condition the $7,500 sanctions on the outcome of the appeal. The court simply
ordered CitiBank and its attorney “to pay, jointly and severally, [Hanke’s] attorney’s fees in
5
connection with the filing and prosecution of the motion.” Unconditional fines for appealing the trial
court’s order dismissing the case are not sanctions designed to assure compliance with discovery or
deter abuse of discovery. “Such an award in no way relates to the harm suffered as a result of the
alleged discovery abuse and serves only as an improper deterrent to appellate review of the
underlying sanction order.” Id. The $7,500 fines in this case were meant to deter CitiBank from
pursuing its right to appeal, not to assure compliance with discovery. The trial court abused its
discretion by imposing unconditional sanctions triggered by the appeal of its ruling; accordingly, we
reverse each award of $7,500 in sanctions. We turn now to the sanction that struck CitiBank’s
pleadings.
“Death Penalty” Sanctions
Case-determinative discovery sanctions, such as an order striking pleadings, may not
be imposed “unless a party’s hindrance of the discovery process justifies a presumption that its
claims or defenses lack merit.” TransAmerican, 811 S.W.2d at 917. Such sanctions are reserved
for “‘exceptional cases’ where they are ‘clearly justified’ and it is ‘fully apparent that no lesser
sanctions would promote compliance with the rules.’” Cire, 134 S.W.3d at 841 (quoting GTE
Communications Sys. Corp. v. Tanner, 856 S.W.2d 725, 729-30 (Tex. 1993)). Thus, “the trial court
[must] consider the availability of less stringent sanctions, and in all but the most exceptional cases,
actually test the lesser sanctions before striking the pleadings.” Cire, 134 S.W.3d at 841. When
considering lesser sanctions, the “trial court must analyze the available sanctions and offer a
reasoned explanation as to the appropriateness of the sanction imposed.” Id at 842; see also GTE,
856 S.W.2d at 729.
6
Based on these principles, we will reverse the order striking CitiBank’s pleadings.
The record contains no indication that the trial court considered lesser sanctions, which alone
constitutes grounds for reversal. See Cire, 134 S.W.3d at 841. Nor does the trial court’s order
attempt to justify the appropriateness of striking CitiBank’s pleadings. While the order refers to
certain behavior by CitiBank in support of the sanctions, it contains no reasoned explanation of the
appropriateness, based on that behavior, of death penalty sanctions.
Furthermore, the trial court did not test lesser sanctions. Even viewing the record in
the light most favorable to Hanke, the discovery abuses in this case do not justify striking CitiBank’s
pleadings as a first measure. That is, failing to answer a request for disclosure, while punishable
litigation misconduct, is not so abusive as to place this case into the exceptional category of cases
for which death penalty sanctions may be imposed without actually testing lesser sanctions.
Compare Spohn Hosp. v. Mayer, 104 S.W.3d 878, 880-83 (Tex. 2003) (holding sanctions deeming
certain key facts as true to be too severe where defendant refused to produce witness statements until
one month before trial); Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 845-53 (Tex. 1992) (holding
death penalty sanctions that were granted without lesser sanctions first being tested to be too severe
where Chrysler refused to produce crash-test reports that were repeatedly requested by plaintiffs);
TransAmerican, 811 S.W.2d 913, 915-19 (holding death penalty sanctions, imposed where
company’s president repeatedly refused to schedule and then failed to appear for deposition, to be
too severe and without direct relationship to the misconduct); and Fletcher v. Blair, 874 S.W.2d 83,
84-86 (Tex. App.—Austin 1994, writ denied) (holding death penalty sanctions levied against
plaintiff for false statements during discovery relating to her damages to be too severe); with Cire,
7
134 S.W.3d 835, 837-43 (upholding death penalty sanctions that were imposed in the first instance
where plaintiff destroyed evidence containing “the heart of the proof needed” to defend claims; such
conduct justified the presumption that plaintiff’s claims lacked merit).
Conclusion
Because the trial court abused its discretion by striking the plaintiff’s pleadings, we
reverse the dismissal of the case and remand for further proceedings. The $7,500 sanctions for
appealing the case are likewise reversed. The sanction awarding $2,500 in attorney’s fees for
representation at the trial court level is affirmed.
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Patterson and Puryear: Opinion by Chief Justice Law;
Concurring Opinion by Justice Patterson
Affirmed in Part; Reversed and Remanded in Part
Filed: April 14, 2006
8 | 01-03-2023 | 09-06-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2883505/ | In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-08-00119-CR
______________________________
ADRIAN LEE PICKINGS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law
Bowie County, Texas
Trial Court No. 08M0712-CCL
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
A jury found Adrian Lee Pickings guilty of the misdemeanor offense of interfering with the
duties of a public servant. See TEX . PENAL CODE ANN . § 38.15 (Vernon Supp. 2008). The
punishment assessed was a fine of $2,000.00. In this appeal, Pickings alleges that a variance
between the charging instrument and the evidence requires a finding that the evidence is legally and
factually insufficient to support the verdict. We affirm the judgment of the trial court.
I. Facts
Jay Hedges, an officer with the Hooks Police Department, was patrolling on the evening of
February 9, 2008, when he observed a vehicle in which the driver failed to signal an intention to turn
within 100 feet of an intersection. For this traffic offense, Hedges stopped the vehicle, which was
being driven by Adrian's mother, Hazel Pickings, and in which Adrian was a passenger. The
occupants of the vehicle (Hazel, Adrian, and an unknown third party) emerged from the vehicle and
refused Hedges' direction to remain seated in the vehicle. Hazel refused to provide Hedges her
driver's license information, and Adrian told Hedges he did not have to provide a m—f— thing.
Hedges then called for assistance from other officers. By that time, Hazel was cursing Hedges;
neighbors hearing the commotion began to gather. Hedges then stated, "I told her she is [was] going
to be placed under arrest for disorderly conduct."
Q. So, you decided to arrest Ms. Pickings?
A. Yes, ma'am.
2
About that same time, Officer Rickey Steward arrived on the scene and attempted to put handcuffs
on Hazel when Adrian stepped in front of Steward, extended his arm, and said that she would not
be arrested. Hedges then grabbed Adrian by the arm and told him he was under arrest for
interference with a public servant's duties.
II. Variance
The information alleged that Adrian did
then and there while Officer Hedges, a peace officer, was performing a duty or
exercising authority imposed or granted by law, to wit: ATTEMPTING TO EFFECT
AN ARREST, with criminal negligence, interrupt, disrupt, impede or interfere with
the said OFFICER HEDGES by STEPPING IN FRONT OF THE OFFICER AS
OFFICER WAS ATTEMPTING TO EFFECT AN ARREST.
In this appeal, Adrian concedes that he interfered with Steward's efforts to arrest his mother, but
denies he interfered with Hedges while he was exercising his authority imposed or granted by law.
He contends that this variance between the allegations in the charging instrument and the evidence
at trial constitutes a material variance that renders the evidence insufficient to sustain the jury's
verdict. We disagree.
A person commits an offense if the person, with criminal negligence, interrupts, disrupts,
impedes or otherwise interferes with a peace officer while the peace officer is performing a duty or
exercising authority imposed or granted by law. TEX . PENAL CODE ANN . § 38.15.
It is undisputed that Hedges was a peace officer performing a duty or authority granted by
law at the time in question and that Adrian interfered with the arrest of his mother. The only issue
3
presented is whether such actions only interfered with Steward rather than Hedges' performance of
such duty.
Hedges was the peace officer who stopped the vehicle that Hazel was driving and in which
Adrian was a passenger. After their refusal to present their driver's licenses, Hedges asked for
additional assistance. Based on her actions, Hedges advised Hazel that she would be placed under
arrest for disorderly conduct. The backup officer attempted to place the handcuffs on Hazel when
Adrian prevented such action until he was arrested by Hedges.
The action that constitutes criminal conduct in this statute is interrupting, disrupting, or
impeding the peace officer doing his duties, one of which includes the authority to arrest. Hedges
was the officer who had observed all of the events that evening, including the refusal of Hazel and
Adrian to obey the command to remain in the vehicle and to provide identification, cursing the
officer, and the gathering of others watching this disturbance. Based on these facts, Hedges advised
Hazel that she would be placed under arrest, and Steward then attempted to take her into custody by
placing handcuffs on her when Adrian interfered. The gravamen of the offense is the interference
with Hedges' performing of a duty or his authority granted by law. It does not matter for purposes
of criminal liability how Adrian did it so long as the effect of Adrian's conduct interfered with
Hedges' performance of his lawful duties. The issue is whether Pickings' actions impeded Hedges'
attempt to effect an arrest. The precise manner that Pickings used to accomplish this is simply a
4
manner or means and is not the gravamen of the offense.1 Whether Adrian stepped in front of
Officer Steward rather than Officer Hedges is not the important consideration; whether such action
impeded Hedges' announced intention to effect an arrest of Hazel is the issue. Even though it was
Steward who actually attempted to place the handcuffs on Hazel when the interference occurred, this
action impeded and interfered with the lawful duty that Hedges had already expressed—to arrest
Hazel. Only Hedges had the factual information that supported the decision to arrest; he was the
initial officer on the scene and was the only officer with personal knowledge of a violation of the law
which would authorize the arrest. Steward was merely assisting in the arrest that Hedges had already
announced. The evidence supports the jury finding that Adrian's actions impeded or interfered with
Hedges' attempt to effect an arrest of Hazel. We find that the evidence does not show a variance
between the charging instrument and the evidence presented. The point of error is overruled.
We affirm the judgment of the trial court.
Jack Carter
Justice
Date Submitted: October 16, 2008
Date Decided: November 12, 2008
Do Not Publish
1
In this case, the manner or means alleged was "by stepping in front of the officer as officer
was attempting to effect an arrest." Generally, adverbial phrases, introduced by the preposition "by"
describe the manner and means of committing the offense. They are not the gravamen of
the offense. Stuhler v. State, 218 S.W.3d 706, 718 (Tex. Crim. App. 2007).
5 | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2892579/ | NO. 07-02-0362-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
MARCH 28, 2005
______________________________
JAMES E. WILLIAMS, III
Appellant
v.
MOODY LAND & CATTLE, L.P., a Texas Limited Partnership
Appellee
_________________________________
FROM THE 223rd DISTRICT COURT OF GRAY COUNTY;
NO. 31,614; HON. LEE WATERS, PRESIDING
_______________________________
Memorandum Opinion
________________________________
Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.
James E. Williams, III (Williams) appeals from an order partitioning six sections of
land in Gray County. Williams owned a one-sixth interest in the land while Moody Land &
Cattle, L.P. (Moody) owned the remaining five-sixths. The sole issue before us involves
the trial court's refusal to admit evidence regarding an oral agreement between Williams
and Maloof Abraham, Moody's predecessor in interest. (1) Through the agreement, Abraham
and Williams purportedly agreed that the property would not be partitioned as long as
Williams was alive. We affirm the judgment of the trial court.
According to the record, Moody objected to the evidence on various grounds, one
of which being Williams' failure to affirmatively assert the agreement as a defense in his
answer to Moody's petition. Although owners of land generally have the right to partition
their realty, they can waive that right through expressed or implied agreement. Lichtenstein
v. Lichtenstein Building Corp., 442 S.W.2d 765, 769 (Tex. Civ. App.-Corpus Christi 1969,
no writ), citing Warner v. Winn, 191 S.W.2d 747 (Tex. Civ. App.-San Antonio 1945, writ
ref'd n.r.e.). And, if they so agreed, then the party who sought a partition will be estopped
from asserting such a right. Odstrcil v. McGlaun, 230 S.W.2d 353, 354-55 (Tex. Civ. App.
-Eastland 1950, no writ). Consequently, the relinquishment of that right has been
characterized as an estoppel or waiver. See Davis v. Davis, 44 S.W.2d 447, 450 (Tex. Civ.
App.-Texarkana 1931, no writ ) (holding that the "'agreement [not to partition] act[s] as an
estoppel against the right to partition or as a waiver of such right'").
Next, the defenses of estoppel and waiver are affirmative in nature and must be
pled. Tex. R. Civ. P. 94. Should the claimant fail to do so, then it is waived. Johnston v.
McKinney American, Inc., 9 S.W.3d 271, 281 (Tex. App.-Houston [14th Dist.] 1999, pet.
denied) (where an affirmative defense is not pleaded or tried by consent, it is waived.).
Given this, it was encumbent upon Williams to affirmatively plead that Moody was estopped
from partitioning the land or waived its right to do so. However, he did not. Having failed
to so plead the affirmative defense, the claims were waived. Williams reliance on Edwards
v. Edwards, 52 S.W.2d 657 (Tex. Civ. App.-Austin 1932, writ ref'd) does not give us reason
to hold otherwise. This is so because Edwards is inapposite.
Unlike the situation at bar, the court in Edwards had to determine whether the
parties had partitioned the land, not whether they waived their right to partition.
Furthermore, Edwards is a trespass to try title case, and the Edwards court held that a
general denial puts in issue any title that the appellees might show to defeat that of their
opponent. Id. at 661. In other words, the court held that the appellees need not have
affirmatively alleged that they obtained an interest in the land through partition to defeat the
claim of the appellants. At bar, Moody was not questioning whether Williams had an
interest in the land or whether that interest was obtained through partition. It simply
objected to Williams' effort to show that Moody had no right to partition since that matter
was not pled. That, in short, was an issue outside the scope of Edwards.
Nor is the allegation that Moody waived its right to object to evidence of other
aspects of the agreement between Abraham and Moody of any moment. The evidence to
which Williams alludes involved other agreements between Abraham and Williams. For
instance, the two purportedly agreed to share expenses "five-sixths and one-sixth" and to
allow Williams to hunt on the entire tract in exchange for Williams leasing his interest in the
land to Abraham at a "cheap rent." Neither of these agreements related to that wherein the
owner of the five-sixths interest supposedly waived his right to partition the property. Nor
does Williams contend that the agreement to waive partition somehow amounted to
consideration given in exchange for any other agreement. Thus, we cannot see how the
admission of evidence about aspects of the agreement unrelated to partition somehow
resulted in Moody's inability to object to evidence regarding the loss of the right to partition.
In short the evidence related to different subjects.
Accordingly, the trial court did not abuse its discretion in excluding the evidence, and
we affirm the judgment.
Per Curiam
Johnson, C.J., not participating.
1. Mr. Abraham died before the case was tried. | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/126686/ | 537 U.S. 1146
ROJAS RIVERAv.UNITED STATES.
No. 02-7932.
Supreme Court of United States.
January 13, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.
2
C. A. 5th Cir. Certiorari denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3218087/ | Dismissed and Opinion Filed June 28, 2016
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-15-01465-CV
MARVIN BROCK, Appellant
V.
RJT PROPERTY & MANAGEMENT LLC, Appellee
On Appeal from the 134th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-15-14321
MEMORANDUM OPINION
Before Chief Justice Wright, Justice Lang-Miers, and Justice Stoddart
Opinion by Chief Justice Wright
The filing fee in this case is overdue. By letter dated May 2, 2016, we informed appellant
that the check used by appellant to pay the filing fee in this case had been returned to the Court
for insufficient funds. We directed appellant to pay the overdue fee within ten days, and
cautioned appellant that failure to do so might result in the dismissal of this appeal without
further notice. To date, appellant has not paid the filing fee.
Moreover, by letter dated February 16, 2016, we questioned our jurisdiction over this
appeal. Specifically, we notified appellant that it did not appear that the trial court had signed an
appealable order or judgment in this case. We directed appellant to provide the Court with a
supplemental clerk’s record containing a copy of the order appellant sought to appeal within ten
days. To date appellant has not provided the Court with a supplemental transcript as requested
nor has he otherwise corresponded with the Court regarding this appeal.
Accordingly, we dismiss this appeal. See TEX. R. APP. P. 42.3 (b),(c).
/Carolyn Wright/
CAROLYN WRIGHT
CHIEF JUSTICE
151465F.P05
–2–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
MARVIN BROCK, Appellant On Appeal from the 134th Judicial District
Court, Dallas County, Texas
No. 05-15-01465-CV V. Trial Court Cause No. DC-15-14321.
Opinion delivered by Chief Justice Wright.
RJT PROPERTY & MANAGEMENT LLC, Justices Lang-Miers and Stoddart
Appellee participating.
In accordance with this Court’s opinion of this date, the appeal is DISMISSED.
It is ORDERED that appellee RJT PROPERTY & MANAGEMENT LLC recover its
costs of this appeal from appellant MARVIN BROCK.
Judgment entered June 28, 2016.
–3– | 01-03-2023 | 06-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2899072/ | NO. 07-08-0219-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
JULY 8, 2009
______________________________
MIKE LEWIS AND GERI KINCANNON, APPELLANTS
V.
XIUM CORPORATION AND GREG A. DOCKERY, APPELLEES
_________________________________
FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;
NO. 94,013-B; HONORABLE JOHN B. BOARD, JUDGE
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
          Appellants, Mike Lewis and Geri Kincannon, appeal from a judgment rendered in
favor of Appellees, Xium Corporation and Greg A. Dockery (Xium),
during a bench trial of
Lewis and Kincannonâs action for breach of their investment contracts with Xium. Lewis
and Kincannon assert the trial court erred by: (1) failing to order an accounting; (2)
entering a directed verdict at the end of their case-in-chief; (3) denying their motion to
supplement their pleadings; (4) denying their motion for discovery sanctions; (5) denying
their motion for a modification of the Discovery Control Plan; (6) denying their post-trial
motion for sanctions; (7) granting Xiumâs untimely objections to discovery; (8) permitting
the admission of âroyalty summariesâ and amended âroyalty summariesâ into evidence; (9)
permitting Xium to use documents at trial not produced in response to Lewis and
Kincannonâs discovery requests; and (10) misapplying the rules of civil procedure to a
hearing on sanctions arising out of Xiumâs non-production of documents and abuse of the
discovery process. Finding that the trial court erred by not ordering an accounting, we
reverse the judgment of the trial court and remand for further proceedings in conformance
with this opinion.
Background
          In their first Amended Petition filed January 26, 2006, Lewis and Kincannon alleged
actions for violation(s) of the Texas Business Opportunity Act,
Securities Act,
Deceptive
Trade Practices-Consumer Protection Act,
and they sought damages for fraud and
breach of contract, as well as seeking to pierce the corporate veil between Xium and its
President, Dockery. Lewis and Kincannon alleged they invested money with Xium
in
return for royalties from the sale of Xium products or other income, but received no money.
The petition sought âan accounting of the expenditures, expenses and income of [Xium and
Dockery] involved in the marketing of Spilateral technology
since the date of [Lewis and
Kincannonâs ] initial investment upon which royalties would be computed.â In addition,
Lewis and Kincannon sought recovery of interest and attorneyâs fees.
          On July 21, 2006, Lewis and Kincannon filed traditional and âno-evidenceâ motions
for summary judgment. On August 22, 2006, Xium and Dockery responded. With their
response, they filed an affidavit by Dockery with attachments entitled âRoyalty
Summar[ies].â
The record does not indicate whether the trial court ever ruled on Lewis
and Kincannonâs motion for summary judgment.
          I.        PreTrial Pleadings
          On July 24, 2007, the trial court filed its pretrial order requiring discovery (including
supplemental responses) to be completed by November 15, 2007, and pleadings to be
filed by December 14, 2007. The order also set a trial date of February 19, 2008. On
August 21, 2007, Lewis and Kincannon filed a motion to compel and for sanctions alleging
Xium had failed to properly respond to their first request for production of documents.
On
October 18, 2007, Xium produced a second set of documents.
          On January 14, 2008, Xium filed an agreed motion to continue the trial date
because the partiesâ depositions had not been conducted due to scheduling conflicts. The
following day, the trial court denied that motion.
          On February 1, 2008, Xium filed a motion for leave to file a âno evidenceâ motion for
summary judgment and, on February 4, 2008, filed a motion for leave to file a traditional
motion for summary judgment. Attached to the traditional motion for summary judgment
was Dockeryâs affidavit and the purported âRoyalty Summariesâ originally filed in August
2006 in response to Lewis and Kincannonâs traditional motion for summary judgment. On
February 15, 2008, Xium faxed an updated copy of the âRoyalty Summariesâ to Lewis and
Kincannon indicating they intended to use the summaries at trial on February 19.
          On February 11, 2008, Xium filed a second agreed motion for a continuance
premised on the pending motions for summary judgment and they jointly sought to
continue the trial until March 24. On February 13, Lewis and Kincannon filed a motion to
strike Xiumâs special exceptions to their first amended petition and Xiumâs âno evidenceâ
and traditional motions for summary judgment. Lewis and Kincannon also filed for leave
to file a second amended petition and sought discovery sanctions under Rules 193.6 and
215 of the Texas Rules of Civil Procedure
based on Xiumâs failure to âfully and
completelyâ respond to Lewis and Kincannonâs request for production of documents. In
support of their motion for discovery sanctions, Lewis and Kincannon asserted Xium wholly
failed to respond to numerous, specific document requests or produced incomplete
documents or documents for miscellaneous time periods. Lewis and Kincannon also
sought a modification of the discovery plan pursuant to Rule 190.5.
          On February 13, 2008, the trial court denied the second agreed motion for
continuance.
Â
          II.       Pretrial Hearing
          Prior to trial on February 19, the trial court held a hearing and denied Lewis and
Kincannonâs motions. The trial court denied a third agreed motion for a continuance and
Xium withdrew its motions for summary judgment.
          The trial court permitted Lewis and Kincannon to put on a bill of exception pertaining
to the trial courtâs denial of their discovery motions. In support of their bill, Lewis and
Kincannon called Mark Kile, a certified public accountant, as a witness who had reviewed
Lewis and Kincannonâs request for production of documents and Xiumâs response. Kileâs
review of Xiumâs response served October 18, 2007, was completed December 22, 2007.
          In response to Lewis and Kincannonâs request for production, Kile testified Xium
produced some board minutes but the minutes were incomplete. He testified that Xium
produced no committee minutes, retirement plan information, or shareholder stock ledgers.
Although Xium produced general ledger documents spanning years 1999 through 2005,
he testified the ledgers were in batch format, only a few miscellaneous months were
included in the postings, the âtotalâ column was not included in the documents produced,
and there was no detail of any individual transactions. In his opinion, the general ledger
documents were incomplete, inadequate, and not representative of Xiumâs complete
financial history. Further, he testified the production of cash disbursement records was
incomplete; only one accounts receivable aging report was produced; the accounts
payable information was incomplete and meaningless; some sales reports were produced
for two years;
customer contact information was incomplete; there were no payroll
ledgers, quarterly payroll reports, salary agreements, or employee contracts,
no
employee benefit or compensation documents; corporate investment documents, property
ownership documents; no loan, guarantee, outstanding commitment or asset pledge
documents; corporate income tax returns; Form 1099's; interim financial statements;
income statements; detailed inventory records; depreciation schedules; invoice copies.
Although some bank statements were produced, only the front page of the statements was
produced.
          Kile testified the âRoyalty Summaries,â attached to Xiumâs summary judgment
pleadings, were encompassed by a specific request for production by Lewis and
Kincannon but were not produced. He indicated that he had no means to verify the
calculations in the âRoyalty Summariesâ because Xium had not produced the underlying
sales and inventory information or documents. Based upon his review of the documents
produced by Xium, he opined their entire production was âreally meaningless . . . [i]t was
like either somebody . . . incompetent put them together or they were intentionally trying
to deceive the plaintiffs, but they were unresponsive to the request . . . [u]seless, just a pile
of paper, general ledgers and tax returns not provided, or the underlying documents,
meaningless.â Thereafter, without granting any further relief, the trial court commenced
the bench trial.
          III.      Bench Trial
          Kincannon was the first witness. He had known Dockery for approximately twenty
years
when Dockery approached him about investing in his new corporation, Xium.
Dockery represented Kincannon would triple a $10,000 investment in Xium in the first year.
          On July 29, 1999, Kincannon agreed to invest $10,000 and entered into a Letter
Agreement. In return for his investment, Kincannon was promised a royalty for each
XM2000 unit sold by Xium not to exceed $30,000 or three hundred percent of his initial
cash investment.
The Agreement further provided, in pertinent part, as follows:
Xium will keep an accurate account of the product manufactured and sold,
and shall render a statement of such business, in writing to you, within thirty
(30) days after the end of each calendar quarter, and shall, concurrently, pay
to you the full amount of royalty accrued during the calendar quarter.
Â
          At the end of the first year, Kincannon met with Dockery who represented that
Kincannon had earned $30,000 in royalties during the first year. Dockery then displayed
numerous kinds of wireless technology manufactured by Xium. He told Kincannon that he
could apply Kincannonâs $30,000 in royalty earnings toward ownership of a portion of
Xiumâs business. Dockery showed Kincannon a chart entitled âStatistics & Projected
Market Penetration.â For each of twenty Xium products, the chart showed the projected
units to be sold and the corresponding âpay zoneâ for an investor depending on the amount
of their investment. The chart indicated that with a $25,000 investment, Kincannon would
realize $590,559 from Xiumâs sales. Dockery represented this amount was the minimum
amount Kincannon would earn if he invested. In return for his investment of $30,000,
Kincannon understood he would receive three percent of Xiumâs sales. Kincannon agreed
to purchase the three percent interest.
          On August 11, 2000, Kincannon also executed a second Letter Agreement and
contributed an additional $12,500 in return for a âroyalty of $.10 per hardware unit sold
using âSpilateralâ technology.â This second Agreement contained the same accounting
provision contained in the first Agreement.
          In February 2001, after obtaining $50,000 from Lewis, Dockery changed his cell
phone number and was unavailable. Although Kincannon attempted to obtain more
information about his investment, Dockery ceased all communication with him. He was
told Dockery was not in his office when Kincannon visited Xiumâs offices
and Dockery did
not return his calls. Kincannon never received any accounting or royalties. Kincannon
testified that he would have never invested in Xium without the assurance of accurate
accountings contained in the Letter Agreements. At the conclusion of his testimony,
Kincannon moved for a trial amendment under Rule 66 to assert a claim for recision.
Following a hearing, the trial court allowed the amendment seeking an alternative measure
of damages in addition to royalties.
          Lewis was the next witness. Lewis testified that he had known Dockery for three
years when he invested in Xium. On July 27, 2000, he and his wife, Mary Lewis, entered
into a Letter Agreement with Xium whereby they contributed $25,000 to Xium in return for
a âroyalty of $.20 per hardware unit sold using Spilateral technology.â And, on February
28, 2001, they entered into a second Letter Agreement whereby they contributed an
additional $50,000 in return for a royalty of $.045 per hardware unit sold using Spilateral
technology. Both Letter Agreements contained the same accounting provision as the
Kincannon agreements.
          Prior to investing, Lewis was also given the same chart as Kincannon entitled
âStatistics & Projected Market Penetration.â He was also told that the increase in the value
of his investment represented on the chart was a âlow figureââ âwhat his minimum payout
would be based on his royalties.â The chart indicated that, based upon an investment of
$75,000, his payout would be $2,140,776. He testified Dockery represented that the
chartâs figures were low and that the minimal amount he would make on his investment
would be $2.14 million. Neither did Lewis receive any accounting or royalties. He testified
that, if he had known that Dockery was not going to give him the accounting to which he
was entitled, he would not have invested the money. He also testified he could not say
what royalty was due and owing to him because he had no information what that amount
would be.
          Lewis and Kincannon rested their case, Xium moved for a directed verdict on all
causes of action, and the trial court granted that motion stating, in pertinent part, as
follows:
With regard to the breach of contract claims, I think thereâs some evidence
to support a finding that the contract was breached by failure to give
quarterly accountings and to pay quarterly royalties, and there is some
evidence with respect to recision damages which would be the amounts paid
by the Plaintiffs. But the Plaintiffs have the burden of proof to prove that an
adequate remedy is not available at law, and thereâs simply no evidence to
support such a finding. I have no evidence what damages, if any, was
caused by the failure to give quarterly reports. I have no evidence to show
what damage, if any, was caused by the failure to pay royalties. Thereâs no
evidence that any royalty was even due. And so based on that, I find that
with regard to [Lewis and Kincannon] meeting their burden of proof on the
contract â breach of contract allegations, they have failed to do so and [I] will
grant judgment to the Defendant.
Â
          On February 28, 2008, Lewis and Kincannon filed a motion for sanctions and
directed verdict or, alternatively, motion for a new trial. The trial court denied Lewis and
Kincannonâs motion and this appeal followed.
Discussion
          Lewis and Kincannonâs points of error can be distilled to three issues. That is, (1)
whether the trial court erred by failing to order an accounting at the conclusion of their
evidence; (2) whether the trial court erred by directing a verdict in Xiumâs favor at the
conclusion of their evidence; and (3) whether, in lieu of ordering further discovery or an
accounting from Xium, the trial court erred by failing to sanction Xium for abusing the
discovery process.
          Xium asserts that Lewis and Kincannon were not entitled to an accounting because
they did not request one in either their original or first amended petitions. Xium asserts the
âRoyalty Summariesâ were an accounting. Xium also asserts a directed verdict was proper
because Lewis and Kincannon failed to establish any damages and that the only evidence
of any damages owing to Lewis and Kincannon, the âRoyalty Summaries,â were excluded
at the prompting of Lewis and Kincannon . Finally, Xium cross moves for sanctions under
Rule 45 of the Texas Rules of Appellate Procedure asserting that Lewis and Kincannonâs
appeal is âfrivolous.â
          I.        Standard of Review
          A directed verdict is proper when the evidence conclusively establishes the right of
the movant to judgment or negates the right of the opponent or when the evidence is
insufficient to raise a material fact issue. Prudential Ins. Co. of America v. Financial
Review Services, Inc., 29 S.W.3d 74, 77 (Tex. 2000). See Cotten v. Weatherford
Bancshares, Inc., 187 S.W.3d 687, 696 (Tex.App.âFort Worth 2006, pet. denied). If the
question to be decided is whether the losing party at trial raised a material fact issue, we
consider all the evidence in a light most favorable to the party against whom the verdict
was instructed and disregard all the contrary evidence and inferences; we give the losing
party the benefit of all reasonable inferences created by the evidence. Coastal Transport
Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 234 (Tex. 2004). If we determine
that any conflicting evidence of probative value raises a material fact issue on any theory
of recovery, then the directed verdict is improper because such an issue is for the finder
of fact to resolve. Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649 (Tex. 1994).
          II.       Accounting
          An accounting may be a particular remedy sought in conjunction with another cause
of action or it may be a suit in equity. Michael v. Dyke, 41 S.w.3d 746, 754
(Tex.App.âCorpus Christi 2001, no pet.). See Sauceda v. Kerlin, 164 S.W.3d 892, 928
(Tex.App.âCorpus Christi 2005), reversed on other grounds, 263 S.W.3d 920 (Tex. 2008).
In a suit for an accounting, the general rule requires that the right to an accounting must
first be determined and, if found, reference for an account should be ordered.
Advertising
and Policy Committee of the Avis Rent A Car System v. Avis Rent A Car System, 780
S.W.2d 391, 400 (Tex.App.âHouston [14th Dist.] 1989), vacated and remâd due to
settlement, 796 S.W.2d 707 (Tex. 1990); Ferguson v. Ferguson, 327 S.W.2d 787, 789
(Tex.Civ.App.âFort Worth 1959), revâd on other grounds, 161 Tex. 184, 338 S.W.2d 945
(1960). Where relief is justified, a trial courtâs failure to order an accounting is cause for
reversal. Southwest Livestock & Trucking Co. v. Dooley, 884 S.W.2d 805, 811
(Tex.App.âSan Antonio 1994, writ denied).
          Here, an accounting remedy was sought in connection with Lewis and Kincannonâs
claim for breach of their investment contracts. Lewis and Kincannon testified they did not
receive any return under their contracts. Their contracts contained an express provision
requiring periodic accounting by Xium and Xium provided no accounting. Thus, Lewis and
Kincannonâs evidence at trial established Xium had a contractual duty to provide Lewis and
Kincannon with an accounting and Xium breached its duty.
          An action for accounting may also be founded in equity; T.R.W. Management, Inc.
v. Westwood Shores Property Owners Assân, 79 S.W.3d 712, 717 (Tex.App.âHouston [14th
Dist.] 2002, pet. denied); Southwest Livestock, 884 S.W.2d at 810, where the decision
whether to grant the accounting is within the sound discretion of the trial court.
Michael,
41 S.W.3d at 754; Southwest Livestock, 884 S.W.2d at 810. Such a remedy is proper
when the facts and accounts presented are so complex that adequate relief may not be
obtained at law. Hutchings v. Chevron U.S.A., 862 S.W.2d 752, 762 (Tex.App.âEl Paso
1993, writ denied) (citing Richardson v. First Natâl Life Ins. Co., 419 S.W.2d 836, 838 (Tex.
1967). See also Sauceda, 164 S.W.3d at 928; T.R.W., 79 S.W.3d at 717-718. When a
party can obtain adequate relief at law through the use of standard discovery procedures,
such as requests for production and interrogatories, a trial court does not err in not ordering
an accounting. T.F.W., 79 S.W.3d at 718.
          Here, regular discovery practices proved inadequate to determine the amount of
royalties, if any, that remained unpaid. Despite Lewis and Kincannonâs detailed request
for production of documents and subsequent motion to compel, the uncontroverted
testimony of Lewis and Kincannonâs accountant, Kile, showed Xiumâs production and
supplemental production were âreally meaninglessâ or âuseless.â Few, if any, of the
requested documents were produced to Lewis and Kincannon, and those documents
produced were either incomplete for the time period requested or incomplete in
themselves. In addition, Xium objected to each investor request asserting the information
sought was âconfidential and proprietary.â Under the circumstances, normal discovery
procedures were inadequate.
          Xium asserts Lewis and Kincannon were not entitled to the accounting remedy
because they did not request an accounting in their original or first amended petitions.
Xiumâs argument is baseless. In their first amended petition, Lewis and Kincannon sought
âan accounting of the expenditures, expenses and income of [Xium and Dockery] involved
in the marketing of âSpilateralâ technology since the date of [Lewis and Kincannonâs] initial
investment upon which royalties would be computed.â Lewis and Kincannonâs first
amended petition sufficiently pled an action for accounting; see Bly v. Harvey, 397 S.W.2d
893, 895 (Tex.Civ.App.âTexarkana 1965, writ refâd n.r.e.), and damages. T-P Inv. Corp.
v. Winter, 400 S.W.2d 957, 959 (Tex.Civ.App.âWaco 1966, writ dismâd).
          Xium next asserts that its âRoyalty Summariesâ were an accounting. An accounting
is a âsystem of recording and summarizing business and financial transactions in books
and analyzing, verifying and reporting the results.â New Jersey Bank (N.A.) V. Knuckley,
637 S.W.2d 920, 921 (Tex. 1982).
Dockeryâs ex parte affidavit and attached âRoyalty
Summariesâ were hearsay and, as such, wholly incompetent and without probative force.
See Sammons Enterprises, Inc. v. Manley, 540 S.W.2d 751, 757 (Tex.Civ.App.âTexarkana
1976, writ refâd n.r.e.); Ward v. National Benev. Soc., 155 S.W.2d 994, 996
(Tex.Civ.App.âGalveston 1941, no writ). As such, the âRoyalty Summariesâ were not an
accounting.
          Xiumâs assertion that Lewis and Kincannon failed to prove their damages, and the
trial courtâs judgment, assumes the proposition to be proven through an accounting, i.e.,
whether Lewis and Kincannon are entitled to any return. In the absence of adequate
discovery or a verified accounting, Lewis and Kincannon were unable to prove their
damages; see generally Winter, 400 S.W.2d at 959 (â[t]he very nature of the prayer for
accounting [makes] it unnecessary for plaintiff to allege a certain and specific amount of
damages or sum dueâ), because Xium controls all the necessary information. Lewis and
Kincannonâs evidence shows that, based upon their long-standing personal relationships,
Dockery proposed the sale of the royalties while representing that Lewis and Kincannon
would reap substantial profits, promised accountings, supervised the sale of the
technology, collected the money, and made all the expenditures. Lewis and Kincannon,
on the other hand, were more akin to silent partners. They had no voice in the enterprise
and knew nothing of the financial status or details of Xiumâs Spilateral business enterprise.
As such, absent adequate disclosure or an accounting, Xium held, and continues to hold,
the exclusive power to establish whether there were no profits from the sale of its Spilateral
technology.
           We find the directed verdict was improper because Lewis and Kincannon produced
evidence Xium had a contractual duty to provide an accounting and breached that duty.
Moreover, regular discovery practices have proven inadequate. Despite their submission
of detailed document requests, Lewis and Kincannon have yet to obtain sufficient
information to determine whether there were profits from the sale of Xiumâs Spilateral
technology and royalties due. Under the standards thus established, we conclude the trial
court erred and/or abused its discretion by denying the imposition of an accounting. See
Sauceda, 164 S.W.3d at 928.
          We sustain Lewis and Kincannonâs first and second points of error. The remaining
points of error are pretermitted; see Tex. R. App. P. 47.1, and Xiumâs cross-point for
sanctions is denied.
CONCLUSION
          The trial courtâs judgment is reversed and remanded for further proceedings
consistent with this opinion.
                                                                           Patrick A. Pirtle
                                                                                 Justice
              Â
          Â
                  Â
 Â
      Â
E>Tex.App.BDallas
1987, writ ref=d n.r.e.).
Zouzalik and Drake present
their evidence of duress through their summary judgment affidavits. They aver that Yang as agent for WestCal threatened to lock the building if Zouzalik and Drake did not pay rent of $31,000 for July 1
through 15. On June 25, they signed a
note for $31,000 to pay the rent because, A[t]o the best of
[their] knowledge@ they knew of no other means to prevent
the lock-out. Access to the cotton was
required, they add, as revenue from its delivery was necessary for World WideÂs continued business operation.
According to the
lease agreement, a Adefault@ would occur if
World Wide failed to pay a rental installment on the due date and the
obligation remained unpaid for five days thereafter. If a default occurred, the lease agreement gave the landlord
an option. It could terminate the lease
by written notice to World Wide. In that
event, the lease automatically terminated on the date specified by the
notice. Or it could terminate World Wide=s right of possession of the
leasehold without terminating the lease, reenter, take possession of the
property, operate it, and collect Athe rents, issues, and profits therefrom
all for the account of [World Wide].@
Zouzalik and Drake do not contend WestCal lacked authority to enforce the lease agreement=s covenant to pay rent by exercising
one of the options granted by the agreement.Â
Further, whether relying on automatic termination of the lease or a
right of reentry, there is no evidence that WestCal
could not on default have lawfully locked the property, including the building
containing the cotton of World Wide. The
summary judgment evidence thus does not present an issue of fact that Yang
threatened an act for which no legal right existed.
Review of applicable statutory
provisions does not suggest a different conclusion. The Property Code allows a commercial
landlord to change the door locks of a tenant Âwho is delinquent in paying at
least part of the rent.ÂÂ Tex. Prop. Code
Ann. ' 93.002(c) (Vernon 2007). Therefore, if World Wide became delinquent
for some or all of the July rent, WestCal had the
legal right to exclude World Wide from the premises by changing the door locks
in conformity with the statute.[1]Â And it is the threat to lock World Wide out
for non-payment of rent that Zouzalik and Drake urge
as the basis for their duress defense.Â
Since exclusion of a tenant from a leasehold by
changing door locks, according to the requirements of statute, is the legal
right of a commercial landlord, Yang=s threat of a lock-out was not on its face unlawful.
Because WestCal
possessed a legal right by the lease agreement or statute to lock World Wide
out, and the summary judgment record creates no fact issue of the converse,
summary judgment for Wells Fargo was proper.
Conclusion
Finding the summary judgment evidence
does not create an issue of fact on each element of duress,
we overrule appellants= issue and affirm the judgment of the
trial court.
Â
Â
                                                                                               James
T. Campbell
                                                                                                           Justice
Â
          Â
Â
[1]Â
The Property Code further provides:
If a landlord or a landlord=s agent changes
the door lock of a tenant who is delinquent in paying rent, the landlord or
agent must place a written notice on the tenant=s front door
stating the name and the address or telephone number of the individual or
company from which the new key may be obtained.Â
The new key is required to be provided only during the tenant=s regular business
hours and only if the tenant pays the delinquent rent.
Tex. Prop. Code Ann. ' 93.002(f) (Vernon
2007). | 01-03-2023 | 09-08-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2909096/ | IN THE
TENTH COURT OF APPEALS
No. 10-00-269-CV
     JOHNNY CARROLL, INDIVIDUALLY,
     AND AS EXECUTOR OF THE RAY
     CARROLL ESTATE AND AS TRUSTEE,
                                                                              Appellant
     v.
     WHITNEY INDEPENDENT SCHOOL
     DISTRICT, ET AL.,
                                                                              Appellees
From the 66th District Court
Hill County, Texas
Trial Court # 7970-A
                                                                                                               Â
MEMORANDUM OPINION
                                                                                                               Â
      On the record before us it is uncontroverted that Johnny Carroll was never served in his
capacity as executor or as trustee. It is also uncontroverted that the attorney representing Carroll
in his individual capacity at trial had not been authorized to make a general appearance on behalf
of Carroll as executor or as trustee. Further, it is uncontroverted that the recitation in the
judgment that Carroll in his capacity as executor and as trustee had filed a written answer was
erroneous. It is axiomatic that before a valid judgment may be taken against a defendant the
defendant must have been properly served, waived citation, or generally appeared in the suit. See
Werner v. Colwell 909 S.W.2d 866, 869-870 (Tex. 1995).
      Accordingly, it was error for the trial court to render judgment against Carroll in his capacity
as executor or as trustee. The judgment of the trial court is reversed and remanded for
proceedings consistent with this opinion.
Â
                                                                   PER CURIAM
Before Chief Justice Davis,
      Justice Vance, and
      Justice Gray
Reversed and remanded
Opinion delivered and filed May 23, 2001
Do not publish
erations, the value, [and] the way the Limestone
Plant is run from an operations point of view; and (3) the contemplated
deposition is Ânot overburdensome or Âundue.Â
         CenterPoint replied that McClanahan
should not be ordered to submit to a deposition because Valence did not show
that he possesses unique or superior personal knowledge of discoverable
information.
         Respondent denied CenterPointÂs motion
for protective order.
         CenterPoint contends that the court
abused its discretion by permitting Valence to depose McClanahan because Valence did not show that: (1) McClanahan has Âany unique or superior personal knowledge of
discoverable informationÂ; or (2) less intrusive means of discovery have proven
insufficient.
         According to the apex deposition
doctrine, when a party seeks to depose a high level corporate official, a
corporation may seek to shield the official from the deposition by filing a
motion for protection supported by the officialÂs affidavit denying knowledge
of any relevant facts. In re Alcatel USA, Inc., 11 S.W.3d 173, 175 (Tex. 2000) (orig. proceeding). A trial court determines such a motion by first deciding
whether Âthe party seeking the deposition has Âarguably shown that the official
has any unique or superior personal knowledge of discoverable information.ÂÂÂ Id. at 175-76 (quoting Crown C. Petroleum Corp. v. Garcia, 904 S.W.2d 125,
128 (Tex. 1995) (orig. proceeding)).
         ÂIf the party seeking the deposition
cannot show that the official has any unique or superior personal knowledge of
discoverable information, the trial court should not allow the deposition to
go forward without a showing, after a good faith effort to obtain the discovery
through less intrusive means, Â(1) that there is a reasonable indication that
the officialÂs deposition is calculated to lead to the discovery of admissible
evidence, and (2) that the less intrusive methods of discovery are
unsatisfactory, insufficient or inadequate.Â
Â
Id.
at 176 (quoting Crown C. Petroleum, 904 S.W.2d at 128).
         Valence cites In re Columbia Rio Grande Healthcare, L.P. for the proposition that McClanahanÂs affidavit
did not adequately deny knowledge of relevant facts. 977 S.W.2d 433 (Tex. App.ÂCorpus Christi 1998, orig. proceeding). CenterPoint relies on a more recent
decision of the Fort Worth Court to support its contention that McClanahanÂs
affidavit is sufficient. See In re Burlington N. & Santa Fe Ry., 99
S.W.3d 323 (Tex. App.ÂFort Worth 2003, orig. proceeding).
         In Columbia Rio Grande Healthcare,
a negligent credentialing case, Columbia identified its CEO in discovery as
Âthe person most knowledgeable regarding [physician contracts].ÂÂ 977 S.W.2d at
434. The plaintiffs sought to depose the CEO, and Columbia filed a motion to
quash the deposition notice. The trial court denied this motion. The
appellate court denied ColumbiaÂs mandamus petition, concluding that, even
though the CEO in his affidavit Âdenied personal knowledge of many aspects of
the lawsuit, he did not deny knowledge of the hospitalÂs physician contracts
or of the hospitalÂs credentialing practices, and he did not broadly deny Âany
knowledge of relevant facts.ÂÂ Id.
         Conversely, in the Burlington
Northern case, the court concluded that the corporate executiveÂs
statements in his affidavit (1) that he had no knowledge of the facts of the
suit, (2) that he had Âno unique or superior knowledge or information regarding
any aspect of this case, and (3) that he had Âno personal knowledge of the
condition of [the railroad] crossing at the time of the accident made the basis
of this suit, were sufficient to invoke the apex deposition analysis, even
though the executive did not generally deny knowledge of any relevant facts.Â
99 S.W.3d at 326 n.3.
         Here, McClanahan stated in his
affidavit that he has Âno unique or specialized knowledge regarding any aspect
of this case and that he has Ânever been involved in the day-to-day operations
of the Limestone Station and [has] no personal knowledge of its operations.Â
         The issue in the underlying lawsuit is
whether ValenceÂs proposed well will preclude or impair Âan existing use by the
surface owner.ÂÂ Tarrant County Water Control & Improvement Dist.
v. Haupt, Inc., 854 S.W.2d 909, 911 (Tex. 1993) (quoting Getty Oil Co.
v. Jones, 470 S.W.2d 618, 622 (Tex. 1971)).
         McClanahan denied having any
specialized or unique knowledge of the day-to-day operations of the Limestone
Plant. Thus, he sufficiently denied knowledge of any relevant facts regarding
any existing usage of the disposal site to shift the burden to Valence to show otherwise. See Alcatel USA, 11 S.W.3d at 175-76; Burlington N. & Santa Fe Ry., 99 S.W.3d at 326.
         Valence responded by arguing
that McClanahanÂs executive position with CenterPoint and the length of his
tenure there establishes that McClanahan Âknows about the operations, the
value, [and] the way the Limestone Plant is run from an operations point of
view. However, Valence presented no evidence to support this argument.Â
Accordingly, we hold that Valence failed to arguably show that McClanahan Âhas
any unique or superior personal knowledge of discoverable information.ÂÂ See
Alcatel USA, 11 S.W.3d at 175.
         Nevertheless, Valence also contends
that it has been unable to obtain the discovery it seeks by less intrusive
means. Id. at 176. At the hearing, Valence referred to a May 5 deposition
notice it served on CenterPoint under Rule of Civil Procedure 199.2(b)(1)
requiring CenterPoint to designate a representative to testify on its behalf.Â
This notice states that the contemplated deposition would be conducted on May
25, two weeks after the hearing on CenterPointÂs motion for protective order.
         This single deposition notice does not
satisfy ValenceÂs burden to show that it has Âmade a reasonable
effort to obtain the information sought through less intrusive means of
discovery.[1]Â See
In re Daisy Mfg. Co., 17 S.W.3d 654, 658 (Tex. 2000) (orig. proceeding)
(per curiam). Thus, Respondent abused his discretion by denying CenterPointÂs
motion for protective order.
         CenterPoint has no adequate remedy at law.  In re El Paso Healthcare Sys., 969 S.W.2d 68, 75 (Tex. App.ÂEl Paso 1998, orig. proceeding).Â
Therefore, we conditionally grant the requested writ of mandamus. Â The writ
will issue only if Respondent fails to advise this Court in writing within
fourteen days after the date of this opinion that he has vacated the order
requiring CenterPoint to produce McClanahan for deposition.
Â
FELIPE REYNA
Justice
Â
Before Justice Vance
and
Justice
Reyna
Petition conditionally
granted
Opinion delivered and
filed June 29, 2005
[OT06]
[1] Â Â Â Â Â Â Â Â Â Respondent granted CenterPointÂs
motion to quash the corporate representative deposition notice. Nevertheless,
this does not change the fact that Valence did not even begin to try to obtain
discovery from CenterPoint of the information it seeks from McClanahan until
less than a week before the hearing on the motion for protective order. | 01-03-2023 | 09-10-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/4539918/ | IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ANGELINA SALAZAR, No. 80177-5-I
Appellant, DIVISION ONE
v. UNPUBLISHED OPINION
ERA LIVING, LLC, dba as IDA CULVER
HOUSE BROADVIEW,
Respondent.
LEACH, J. — Angelina Salazar appeals a trial court order vacating a default
judgment against Era Living, LLC pursuant to CR 60(b)(1). Because Salazar does
not demonstrate that the trial court abused its discretion, we affirm.
FACTS
Between 2008 and 2015, Salazar worked as the admissions coordinator at
Ida Culver House Broadview, a senior care facility in North Seattle. According to
Salazar, the director of Ida Culver House Broadview engaged in inappropriate
physical contact with her and asked intrusive questions about her personal life.
After Salazar told him to stop, he became rude and difficult to work with.
On August 6, 2018, Salazar sued “Era Living, LLC, dba as Ida Culver House
Broadview.” Salazar alleged claims of sexual harassment based on a hostile work
environment, unlawful retaliation, and constructive discharge, pursuant to chapter
Citations and pincites are based on the Westlaw online version of the cited material.
No.80177-5-I/2
RCW 49.60, the Washington Law Against Discrimination (WLAD). She also
asserted a claim for negligent infliction of emotional distress.
On August 9, 2018, Salazar personally served Fairchild Record Search with
the summons and complaint. According to the Washington Secretary of State
website, Fairchild Record Search is Era Living’s registered agent.
Era Living did not appear or respond to the complaint. The trial court
entered an order of default and a default judgment in the amount of $542,650.
Era Living learned of the judgment when it received a letter from Salazar’s
attorney on or about April 17, 2019. On May 16, 2019, Era Living filed a motion to
vacate the default judgment pursuant to CR 55 and CR 60. Era Living supported
its motion with the declarations of Tim McCoy and Matthew Bromen.
McCoy has served as Era Living’s Chief Financial Officer and Vice
President of Finance since May 1998. He stated a company called Broadview
Development Associates II, A Limited Partnership (“Broadview”) owned and
operated Ida Culver House Broadview. McCoy also stated, Era Living has an
agreement with Broadview to provide administrative services such as human
resources, payroll, receipt of legal notices, and general operational support.
McCoy explained Era Living’s standard procedure for receiving notice of
legal proceedings at the time Salazar filed the lawsuit.
As part of its administrative services agreement with Broadview, Era
Living receives by email the service notices for Broadview as well.
That system operated as follows: Era Living received legal notices
by email from Fairchild Record Search (“Fairchild”) attaching
scanned copies of the legal papers. When an email notice from
Fairchild came in, a designated Era Living administrative assistant
reviewed the notices and any attachments, and forwarded them to
the appropriate party (e.g., licensing issues go to administration,
2
No.80177-5-I/3
garnishments go to payroll, etc.). If the administrative assistant
responsible for intake had a question about the legal notice, he or
she was trained to ask the administrative services manager or me.
However, so as to not duplicate efforts, while the administrative
manager and I were copied on the notice email, we did not open and
read every notice. Rather, the administrative manager and I
reviewed the notices only if the intake administrative assistant had
questions or otherwise forwarded the notice email to our attention.
McCoy stated that, until Salazar filed her lawsuit, “Era Living’s legal notices system
has never missed a legal notice.”
According to McCoy, Fairchild notified Era Living via email of Salazar’s
lawsuit in accordance with its usual practice on or about August 9, 2018. But, Era
Living’s administrative assistant responsible for legal notice intake “did not forward
the email due to an oversight.” Although McCoy and Era Living’s administrative
manager also received a copy of the email, they did not open it.
McCoy stated that Era Living was “[d]ismayed at missing a legal notice” and
has since overhauled its notice review protocol. Under the new system, four
people review each email notice from Fairchild, two administrative assistants, the
administrative manager, and McCoy. Era Living keeps a detailed log of all notices
received and actions taken. Fairchild has also revised its practices. Fairchild now
follows up on each email if it does not receive confirmation of receipt from Era
Living and also sends the hard copy originals to Era Living by mail or FedEx.
McCoy stated, “Through these corrective measures, Era Living expects that the
inadvertent oversight that occurred in this case will not happen again.”
Bromen stated he had served as Era Living’s director of human resources
since September 1, 2011. He stated that Era Living had never employed Salazar,
and that during the time that Salazar worked at Ida Culver House, her employer
3
No.80177-5-I/4
was Broadview. Broadview also employed the Ida Culver House Broadview
director. According to Bromen, Broadview “directed and controlled their work,
enforced safe workplace practices and policies, and issued their paychecks.” Era
Living’s role, in contrast, was to provide administrative support to Broadview.
Era Living asserted defenses to the merits of each of Salazar’s claims. It
also asserted, based on the declarations of McCoy and Bromen, that it was not
liable for any of Salazar’s claims because it was not Salazar’s employer. It
contended that its failure to appear in the action was due to mistake or excusable
neglect, that it acted diligently to vacate the default judgment, and that vacation of
the default would not prejudice Salazar.
The trial court granted Era Living’s request to vacate the default judgment.
Salazar appeals.
STANDARD OF REVIEW
We review a trial court’s decision vacating a default judgment for an abuse
of discretion. 1 We will not overturn a trial court’s decision on a CR 60(b) motion to
vacate a judgment unless it plainly appears that the trial court abused its
discretion. 2 A trial court abuses its discretion only when its decision is manifestly
unreasonable or based on untenable grounds. 3 Our primary concern is that a trial
court’s decision on a motion to vacate a default judgment is just and equitable. 4
1 Little v. King, 160 Wn.2d 696, 702, 161 P.3d 345 (2007).
2 Luckett v. Boeing Co., 98 Wn. App. 307, 309, 989 P.2d 1144 (1999).
3 State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
4 Little, 160 Wn.2d at 711.
4
No.80177-5-I/5
We are less likely to reverse a trial court decision that sets aside a default judgment
than a decision which does not. 5
The trial court did not enter findings of fact or conclusions of law identifying
the basis for its decision. But, we may affirm on any basis supported by the
record. 6
DISCUSSION
Washington generally disfavors default judgments because “[w]e prefer to
give parties their day in court and have controversies determined on their merits.”7
CR 55 provides that “if a judgment by default has been entered, [the trial court]
may likewise set it aside in accordance with rule 60(b).” 8 CR 60(b) lists 11 grounds
upon which a party may seek relief from judgment. While Era Living did not
specifically identify the grounds upon which it sought relief, the relevant basis
appears to be CR 60(b)(1) “[m]istakes, inadvertence, surprise, excusable neglect
or irregularity in obtaining a judgment or order.”
In general, to vacate a default judgment pursuant to CR 60(b)(1), the
moving party must establish that (1) there is substantial evidence to support a
prima facie defense to the claims asserted by the opposing party, (2) the moving
party’s failure to appear in the action was occasioned by mistake, inadvertence,
surprise, or excusable neglect, (3) the moving party acted with due diligence after
5 Griggs v. Averbeck Realty, Inc., 92 Wn.2d 576, 582, 599 P.2d 1289
(1979).
6 Amy v. Kmart of Wash., LLC, 153 Wn. App. 846, 868, 223 P.3d 1247
(2009).
7 Morin v. Burris, 160 Wn.2d 745, 754, 161 P.3d 956 (2007).
8 CR 55(c)(1).
5
No.80177-5-I/6
notice of the entry of default, and (4) no substantial hardship will result to the
opposing party. 9 The first two factors above are “primary” and the latter two are
“secondary.” 10 To determine whether the moving party has demonstrated a prima
facie defense, the trial court must review the evidence and all reasonable
inferences in the light most favorable to the moving party. 11 The moving party has
presented “a prima facie defense if it produces evidence that, if later believed by
the trier of fact, would constitute a defense to the claims presented.” 12 In making
its determination, the trial court does not weigh the evidence. 13
When the moving party is able to demonstrate a “strong or virtually
conclusive defense,” courts will generally spend little time inquiring into the
reasons for the default, “provided the moving party is timely with his application
and the failure to properly appear in the action in the first instance was not willful.”14
In other words, the moving party must demonstrate that (1) it has a strong or
virtually conclusive defense to the claim asserted against it, (2) it has timely moved
to vacate the default judgment, and (3) its failure to timely appear was not willful. 15
This is because “[i]f a default judgment on a meritless claim is allowed to stand,
justice has not been done”. 16 To determine that the moving party’s defense is
9White v. Holm, 73 Wn.2d 348, 352, 438 P.2d 581 (1968).
10Little, 160 Wn.2d at 352.
11 Rosander v. Nightrunners Transport, Ltd., 147 Wn. App. 392, 404, 196
P.3d 711 (2008).
12 Rosander, 147 Wn. App. at 404-05.
13 Pfaff v. State Farm Mut. Auto. Ins. Co., 103 Wn. App. 829, 835-36, 14
P.3d 837 (2000).
14 White, 73 Wn.2d at 352-53.
15 TMT Bear Creek Shopping Ctr., Inc. v. PETCO Animal Supplies, Inc., 140
Wn. App. 191, 205, 165 P.3d 1271 (2007).
16 TMT, 140 Wn. App. at 205.
6
No.80177-5-I/7
strong or virtually conclusive, the court must examine all the evidence, not merely
that which if believed would support the defense. 17
Salazar contends the trial court erred by vacating the judgment because
Era Living failed to present substantial evidence establishing a prima facie
defense. We conclude that Era Living established a “strong or virtually conclusive
defense” to at least one of Salazar’s claims.
To establish a hostile work environment claim based on sexual harassment,
an employee must show (1) offensive and unwelcome conduct that (2) occurred
because of sex that (3) was serious enough to affect the terms or conditions of
employment and (4) can be imputed to the employer. 18 A plaintiff must file a hostile
work environment claim within the applicable statute of limitations, which is three
years. 19 A claim is timely only if at least one of the acts constituting sexual
harassment occurred during the limitations period. 20
Salazar filed her complaint on August 6, 2018. Accordingly, the claim must
arise from conduct occurring on or after August 5, 2015. Salazar left her job at Ida
Culver House Broadview on August 15, 2015. Her complaint identifies three
incidents of harassing conduct: (1) the director sitting on her desk with what
appeared to be an erection and asking questions about her relationship status; (2)
the director brushing against her and smelling her hair at a holiday party; and (3)
17 TMT, 140 Wn. App. at 202-03.
18 Glasgow v. Georgia–Pac. Corp., 103 Wn.2d 401, 405, 693 P.2d 708
(1985).
19
Goodman v. Boeing Co., 75 Wn. App. 60, 77, 877 P.2d 703 (1994);
RCW 4.16.080(2).
20 Antonius v. King County, 153 Wn.2d 256, 271, 103 P.3d 729 (2004).
7
No.80177-5-I/8
the director touching her hair during a staff meeting. Salazar’s complaint does not
allege when the acts of sexual harassment acts took place. But, in exit interviews
that Salazar provided in response to the motion to vacate, she stated that the first
incident occurred sometime in late summer or early fall 2013, the second incident
was at a holiday party in December 2013, and the third incident was sometime in
summer 2014 or early 2015. Salazar did not allege any acts of sexual harassment
occurring after August 5, 2015. Thus, Era Living had a strong defense that this
claim was time-barred.
Because Era Living established a strong defense to at least one of Salazar’s
claims, we turn to the remaining White factors. Salazar does not dispute that Era
Living acted with diligence in seeking to vacate the default judgment. Thus, we
focus on whether Era Living’s failure to timely appear was willful.
“Willful” is defined as “done deliberately: not accidental or without purpose:
intentional, self-determined.”21 A failure to comply with a court order is willful if it is
“without reasonable excuse or justification.” 22
Here, McCoy’s declaration explained that Era Living had a protocol for
reviewing and responding to legal notices. He stated that an administrative
assistant failed to follow the protocol due to an oversight. After discovering the
default judgment, both Era Living and its registered agent strengthened their
notification systems to include additional safeguards. McCoy expressed
21 Webster’s Third New International Dictionary 2617 (2002); Black’s Law
Dictionary 1630 (8th ed. 2004).
22 Rivers v. Washington State Conference of Mason Contractors, 145
Wn.2d 674, 687, 41 P.3d 1175 (2002).
8
No.80177-5-I/9
confidence that the measures would prevent such an oversight from ever occurring
again. Nothing in the record shows that Era Living deliberately or intentionally
failed to respond to Salazar’s lawsuit. The trial court could have reasonably
determined that Era Living’s conduct was not willful. 23
Affirmed.
WE CONCUR:
23
Showalter v. Wild Oats, 124 Wn. App. 506, 514, 101 P.3d 867 (2004);
Shepard Ambulance, Inc. v. Helsell, Fetterman, Martin, Todd & Hokanson, 95 Wn.
App. 231, 242-35, 974 P.2d 1275 (1999).
9 | 01-03-2023 | 06-08-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/2892570/ | NO. 07-03-0290-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
MARCH 29, 2005
______________________________
W. HUGH HARRELL, APPELLANT
v.
ROBERT H. HARTMAN, APPELLEE
_________________________________
FROM THE 237TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 99-506,177; HON. JOHN T. FORBIS, PRESIDING
_______________________________
Before REAVIS and CAMPBELL, JJ., and BOYD, S.J.1
Memorandum Opinion
In this appeal, appellant W. Hugh Harrell (Harrell) challenges a June 7, 2003 order
of the trial court entitled “Restatement of Finality of Judgment.” For reasons we specify
below, the trial court had no jurisdiction to enter the order and we must, therefore, hold that
the order is void and dismiss this appeal for lack of jurisdiction.
1
John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon Supp. 2004-2005).
Background
In the suit underlying this matter, Harrell was sued by appellee Robert H. Hartman
(Hartman) for legal malpractice. Hartman was represented in this suit by attorney Cam
Fannin, Jr. (Fannin). During the pendency of the malpractice suit, Harrell filed a motion
asking for the imposition of sanctions against Hartman in which he asserted the malpractice
claim was frivolous and filed for harassment purposes. Harrell also filed a motion seeking
summary judgment on the malpractice suit which resulted in a summary judgment in his
favor dated March 3, 2001. In the judgment, which was prepared by Harrell and accepted
by the trial court, the court provided that Hartman take nothing by his suit against Harrell
and that each party would pay the costs incurred by that party. Harrell’s quest for sanctions
was not addressed in the judgment nor was it severed from the lawsuit in the judgment or
prior thereto. Moreover, the clause commonly referred to as a “Mother Hubbard” clause,
providing that all relief requested but not expressly granted in the order was denied, was
not included in it.
Hartman appealed the summary judgment to this court which resulted in our
affirming the judgment.2 Hartman filed a petition with the Texas Supreme Court seeking
review of our decision which was denied by that court on April 10, 2003. At no time during
the pendency of the appeal did Harrell file a motion for new trial, seek to modify, correct or
reform the judgment of the trial court, or request that the trial court rule on his pending
sanctions motion.
2
See Hartman v. Harrell, No. 07-01-0099-CV, 2002 Tex. App. LEXIS 8629 (Tex.
App.–Amarillo December 3, 2002, pet. denied).
2
Soon after the Texas Supreme Court’s denial of Hartman’s petition for review,
Fannin received a letter from Harrell in which Harrell asserted his motion for sanctions was
still pending and requested information from Fannin concerning the extent of Fannin’s legal
malpractice insurance. Fannin then wrote the trial court requesting a hearing as to whether
the March 3, 2001 judgment, despite the absence of a “Mother Hubbard” clause, was
intended to dispose of all pending claims in the suit or if Harrell’s sanctions motion was still
pending. In response to the request, the trial court held a hearing as a result of which it
rendered the June 7, 2003 “Restatement of Finality of Judgment” giving rise to this appeal.
In that order, as relevant here with respect to the summary judgment, the court stated: “[It
was] intended by the Court to be a Final Order which disposed of all issues between the
parties. No further action should come before this Court as regards this cause of action.”
In presenting his appeal, Harrell raises two issues for our decision. They are: 1) the
trial court’s June 7, 2003 order was void or voidable because it was rendered after the trial
court had lost plenary jurisdiction over the case, and 2) this court should sanction both
Hartman and Fannin for violating Rule 21b of the Texas Rules of Civil Procedure. Hartman
and Fannin respond that Harrell’s appeal is untimely because all pending motions were
overruled by operation of law upon the expiration of the trial court’s plenary jurisdiction.
They further respond that they did nothing improper in requesting the hearing in question
and neither they nor the trial court did anything improper. Thus, they argue, there was no
violation of Tex. R. Civ. P. 21b.
Jurisdiction
Because the jurisdiction of a court is fundamental and may not be ignored, a court
must notice, even sua sponte, the matter of its jurisdiction. Marshall v. Brown, 635 S.W.2d
3
578, 580 (Tex. App.–Amarillo 1982, writ ref’d n.r.e.). Subject matter jurisdiction is essential
to the authority of a court to decide a case. Texas Ass’n of Business v. Texas Air Control
Bd., 852 S.W.2d 440, 443 (Tex. 1993). It is never presumed and cannot be waived. Id. at
443-44. Subject matter jurisdiction may be raised for the first time on appeal. Id. at 445.
The issue of a court’s subject matter jurisdiction is a legal question subject to a de novo
review. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).
A trial court retains plenary jurisdiction over a case for a period of 30 days after it
signs a final judgment.3 Tex. R. Civ. P. 329b(d); Lane Bank Equip. Co. v. Smith S. Equip.,
Inc., 10 S.W.3d 308, 310 (Tex. 2000). A judgment is final if it disposes of all parties and
all issues in a suit. North East Independent School Dist. v. Aldridge, 400 S.W.2d 893, 895
(Tex. 1966). It is the pleadings that determine the issues and the parameters of a contest.
Jobe v. Lapidus, 874 S.W.2d 764, 765 (Tex. App.–Dallas 1994, writ denied). A summary
judgment that disposes of all the issues presented in the pleadings is a final judgment and
is not made interlocutory by a pending motion for sanctions. Lane Bank Equip. Co. v.
Smith S. Equip., Inc., 10 S.W.3d at 312; Hartman v. Harrell, 2002 Tex. App. LEXIS 8629
at 2-3; Jobe v. Lapidus, 874 S.W.2d at 766.
A trial court cannot award sanctions after the expiration of its plenary jurisdiction.
Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d at 311; In re Bennett, 960 S.W.2d
35, 38 (Tex. 1997); Scott & White Mem. Hosp. v. Schexnider, 940 S.W.2d 594, 596 (Tex.
3
Texas Rule of Civil Procedure 329b provides for extension of this period if a motion
for new trial or a motion to modify, correct or reform a judgment is filed within the 30-day
plenary period. However, even if these exceptions were to apply to this case, which they
do not, a trial court may retain plenary jurisdiction for a maximum of 105 days after entering
its final judgment. Tex. R. Civ. P. 329b(c) & (e); Clark & Co. v. Giles, 639 S.W.2d 449, 449-
50 (Tex. 1982).
4
1996). Judicial actions taken after the expiration of the trial court’s plenary power are void.
In re Southwestern Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000); In re T.G., 68 S.W.3d
171, 177 (Tex. App.–Houston [1st Dist.] 2000, pet. denied).
Reiterated, in his first issue, Harrell contends the trial court’s June 7, 2003 order was
void because it was rendered after the trial court lost plenary jurisdiction. We agree. The
trial court’s March 3, 2001 order granting Harrell’s motion for summary judgment was a final
judgment in that it disposed of all issues set out in the pleadings and disposed of all parties
to the proceedings. Although the summary judgment did not specifically address Harrell’s
motion seeking sanctions, this court held that fact did not prevent the judgment from being
a final one. Hartman v. Harrell, 2002 Tex. App. LEXIS 8629 at 3. Thus, as we have noted,
absent certain exceptions not present here, a trial court loses plenary jurisdiction over a
case 30 days after it signs a final judgment. See Tex. R. Civ. P. 329b(d); Lane Bank Equip
Co. v. Smith S. Equip., Inc., 10 S.W.3d at 310. We can only conclude that the trial court
rendered its June 7, 2003 order after it lost plenary power. That being true, the order is
without effect and is void. In re Southwestern Bell Tel. Co., 35 S.W.3d at 605; In re T.G.,
68 S.W.3d at 177.
We have not overlooked Harrell’s citation in his reply brief to Wolma v. Gonzalez,
822 S.W.2d 302, 303 (Tex. App.–San Antonio 1991, no writ) for the proposition that a trial
court may award sanctions after the expiration of its plenary power. However, the Texas
Supreme Court has disapproved that holding. See Scott & White Mem. Hosp. v.
Schexnider, 940 S.W.2d at 596, n.2.
5
When a party appeals from a void trial court order, the proper procedure is for the
appellate court to declare the order void and dismiss the appeal for lack of jurisdiction. See
State ex rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995).
Texas Rule of Civil Procedure 21b Sanctions
In his second issue, Harrell contends that Hartman and Fannin violated Tex. R. Civ.
P. 21b by failing to serve or deliver to him a copy of the pleading, plea, motion, or other
application for a hearing on the finality of the March 3, 2001 summary judgment. To
preserve a complaint for appellate review, a party must present to the trial court a timely
request, motion, or objection, stating the specific grounds therefor, and obtain a ruling.
Holland v. Wal-Mart Stores, Inc. 1 S.W.3d 91, 94 (Tex. 1999); In re C.O.S., 988 S.W.2d
760, 764-65 (Tex. 1999). Although Harrell’s “Answer to Order Setting Hearing on Finality
of Judgment” does request the trial court award sanctions to Harrell for Hartman and
Fannin’s alleged violation of Tex. R. Civ. P. 21b, the record does not reflect that Harrell
ever requested or obtained a specific ruling on the motion from the trial court. Because
Harrell did not preserve error regarding the issue of sanctions to the trial court, we have
nothing before us for our review. See Tex. R. App. P. 33.1(a); Holland v. Wal-Mart Stores,
Inc., 1 S.W.3d at 94; In re C.O.S., 988 S.W.2d at 764-65.
Our disposition of Harrell’s first issue obviates the necessity for discussion of
Hartman and Fannin’s plea to our jurisdiction to consider the appeal. Suffice it to say that
the trial court lacked plenary power to enter its June 7, 2003 order entitled “Restatement
of Finality of Judgment.” That being so, its order is void and we must, and do hereby,
dismiss the appeal for lack of jurisdiction. State ex rel. Latty v. Owens, 907 S.W.2d at 486.
6
Moreover, for reasons we have discussed, the record does not show any basis for
imposition of Tex. R. Civ. P. 21b sanctions.
John T. Boyd
Senior Justice
7 | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2897144/ | NO. 07-04-0363-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JUNE 18, 2008
______________________________
IN RE NORTHWEST TEXAS HEALTHCARE SYSTEM, INC.
AND HARVEY ROSS SHADBOLT, CRNA, RELATORS
_________________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
          By opinion dated April 27, 2005, this Court conditionally granted a writ of mandamus
in favor of Relators, Northwest Texas Healthcare System, Inc. and Harvey Ross Shadbolt,
C.R.N.A. in a health care liability suit brought by Real Parties in Interest, Susan Roberts
and John R. Roberts, Jr., individually and as next friends of their three minor children.
Pursuant to § 13.01(g) of the Medical Liability and Insurance Improvement Act,
the trial
court granted the Roberts a thirty-day grace period in which to file their expert reports. This
Court concluded that the expert reports were conclusory and thus, insufficient to support
a grace period under § 13.01(g) and conditionally granted a writ of mandamus.
          On May 9, 2005, the Roberts filed a Petition for Writ of Mandamus in the Texas
Supreme Court seeking relief from this Courtâs decision. Based on its recent decision in
In re McAllen Medical Center, Inc., No. 05-0892, 2008 WL 2069837, 51 Tex. Sup. Ct. J.
893 (Tex. May 16, 2008), on June 6, 2008, the Supreme Court held that this Court erred
in granting Relatorsâ requested relief. Consequently, the Supreme Court conditionally
granted mandamus relief in favor of the Roberts and directed this Court to vacate our
previous order.
          Accordingly, we vacate our order of April 27, 2005 conditionally granting a writ of
mandamus directing the Honorable Don Emerson, Judge of the 320th District Court to
withdraw its prior order granting a thirty-day grace period to the Roberts in which to file their
expert reports. We also deny the Petition for Writ of Mandamus filed by Relators,
Northwest Texas Healthcare System, Inc. and Harvey Ross Shadbolt, C.R.N.A. on July 15,
2004.
                                                                           Per Curiam
"Medium List 1 Accent 1"/>
NO. 07-11-00115-CR
Â
IN THE COURT OF APPEALS
Â
FOR THE
SEVENTH DISTRICT OF TEXAS
Â
AT
AMARILLO
Â
PANEL D
Â
APRIL
26, 2011
Â
Â
NICOLE C. FERGUSON, APPELLANT
Â
v.
Â
THE STATE OF TEXAS, APPELLEE
Â
Â
FROM THE 100TH DISTRICT COURT OF
CARSON COUNTY;
Â
NO. 3701; HONORABLE DAN MIKE BIRD, JUDGE
Â
Â
Before QUINN,
C.J., and CAMPBELL and PIRTLE, JJ.
Â
Â
ORDER OF ABATEMENT AND
REMAND
Â
Appellant, Nicole C. Ferguson,
appeals the trial courtÂs judgment adjudicating guilt for the offense of felony
possession of marijuana.[1]Â The clerkÂs record contains a certification
of appellantÂs right of appeal which was not signed by appellant.Â
Effective September 1, 2007, Rule of
Appellate Procedure 25.2(d) was amended to require certifications executed
after the effective date to be signed by the appellant and a copy served on
him. Tex. R. App. P. 25.2(d); Mason v. State, No. 07-07-0383-CR, 2008
Tex. App. Lexis 3956 (Tex.App.--Amarillo May 29,
2008) (per curiam order, not designated for
publication). Consequently, we abate the
appeal and remand the cause to the 100th District Court of Carson County for
further proceedings. On remand, the
trial court shall utilize whatever means it finds necessary to secure and file
with this court a certificate of right to appeal that complies with Rule
25.2(d). Tex. R. App.
P. 25.2(d).
If necessary, the trial court shall
execute findings of fact, conclusions of law, and any necessary orders it may
enter regarding the aforementioned issues and cause its findings, conclusions,
and orders, if any, as well as a conforming certificate of appellantÂs right of
appeal to be included in a supplemental clerkÂs record. If the trial court conducts a hearing in the
matter, it shall be stenographically recorded and the
transcription included in a supplemental reporterÂs record. The trial court shall file the supplemental
clerkÂs record and the supplemental reporterÂs record, if any, with the clerk
of this court by May 26, 2010.
It is so ordered.
Per Curiam
Â
Â
Do not
publish.
          Â
[1] See Tex.
Health & Safety Code Ann. § 481.121(a),(b)(5) (West 2010) (the knowing or
intentional possession of a useable quantity of marijuana of 2,000 pounds or
less but more than 50 pounds is a second degree felony). A second degree felony is punishable by
imprisonment for a term of not more than 20 years or less than 2 years and a
fine not to exceed $10,000. Tex. Penal Code Ann. § 12.33 (West Supp. 2010). | 01-03-2023 | 09-08-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2960837/ | Hiawatha Henry, Addie
Harris,
Fourth Court of Appeals
San Antonio, Texas
September 17, 2015
No. 04-15-00469-CV
CASH BIZ, LP, Redwood Financial, LLC, Cash Zone, LLC dba Cash Biz,
Appellants
v.
Hiawatha HENRY, Addie Harris, Montray Norris, and Roosevelt Coleman Jr., et al.,
Appellees
From the 166th Judicial District Court, Bexar County, Texas
Trial Court No. 2015-CI-01545
Honorable Laura Salinas, Judge Presiding
ORDER
In this accelerated appeal, Appellees’ brief is due on September 23, 2015. On September
17, 2015, Appellees filed an agreed first motion for a ten-day extension of time to file Appellees’
brief until October 5, 2015.
Appellees’ motion is GRANTED. See TEX. R. APP. P. 38.6(d). Appellees’ brief must be
filed with this court by October 5, 2015.
_________________________________
Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 17th day of September, 2015.
___________________________________
Keith E. Hottle
Clerk of Court | 01-03-2023 | 09-18-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2791748/ | COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Beales and Decker
PUBLISHED
Argued at Norfolk, Virginia
VIRGINIA MARINE RESOURCES COMMISSION
v. Record No. 1643-14-1
DARRELL W. INSLEY
OPINION BY
VIRGINIA MARINE RESOURCES COMMISSION JUDGE ROBERT J. HUMPHREYS
APRIL 7, 2015
v. Record No. 1644-14-1
DENNIS W. PARKER
FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY
R. Bruce Long, Judge
Matthew R. Hull, Assistant Attorney General (Mark R. Herring,
Attorney General; John W. Daniel, II, Deputy Attorney General;
Lynne C. Rhode, Senior Assistant Attorney General, on briefs), for
appellant.
Ann K. Sullivan (Melissa M. Picco; Sullivan Law Group, PLC, on
brief), for appellees.1
The Virginia Marine Resources Commission (“VMRC”) appeals the September 8, 2014
decision of the Gloucester County Circuit Court (the “circuit court”). The circuit court reversed
VMRC’s decision to revoke the licenses and fishing privileges of Darrell Insley (“Insley”) and
Dennis Parker (“Parker”), and remanded the case back to VMRC to reinstate Insley’s and
Parker’s licenses and privileges. VMRC’s single assignment of error is that the circuit court
erred by setting aside VMRC’s decision because it was supported by substantial evidence.
1
Parker’s and Insley’s cases were consolidated for the purposes of briefing and
argument, and we therefore consolidate the resolution of their appeals in this opinion.
Parker and Insley (collectively “appellees”) submit a cross assignment of error asserting
that the circuit court erred in failing to award them attorney’s fees because they substantially
prevailed below and VMRC’s position was not substantially justified.
I. BACKGROUND
Parker and Insley were issued several summonses by VMRC for violating state fishing
laws.2 They were both convicted on all charges in general district court. Neither Parker nor
Insley appealed any of their convictions. On March 24, 2014, VMRC held a hearing to consider
whether to revoke Parker’s and Insley’s fishing licenses and privileges pursuant to Code
§ 28.2-232 because of their recent convictions. At the hearing, VMRC heard evidence of
Parker’s four convictions stemming from two separate incidents, and Insley’s three convictions
stemming from three separate incidents. Parker and Insley each were given an opportunity to
present evidence and argument, but neither disputed that they were in fact convicted of those
violations. VMRC unanimously decided to revoke their fishing licenses and privileges for one
year—beginning March 25, 2014 and ending March 25, 2015.
Parker and Insley appealed the VMRC’s decision to the circuit court. On August 22,
2014, the circuit court reversed the VMRC’s decision, holding that it did not “think the evidence
here substantially supports the action that the VMRC took” and that “the action is too draconian
given the nature of the violations.” Concluding that the evidence did not support a finding that
2
On February 20, 2013, Insley was issued a summons charging him with possession of
unculled oysters in violation of Code § 28.2-201. On September 4, 2013, he was issued a
summons charging him with commercially taking oysters by dredge between sunset and sunrise
in violation of Code § 28.2-530. On December 2, 2013 he was issued a summons charging him
with another violation of Code § 28.2-201. On September 4, 2013, Parker was issued a
summons charging him with three separate violations: (1) commercially taking oysters by
dredge between sunset and sunrise in violation of Code § 28.2-530; (2) dredging on private
oyster ground without the permit to dredge on the ground in violation of Code § 28.2-515; and
(3) failure to properly mark oyster ground lease and boat before commercially working in
violation of Code § 28.2-517. On December 2, 2013 he was issued a summons charging him
with possession of unculled oysters in violation of Code § 28.2-201.
-2-
Parker’s or Insley’s convictions rose to a “course of conduct,” the circuit court found that the
evidence therefore did not support a finding that the licenses and privileges ought to have been
revoked. On September 8, 2014, the circuit court entered two orders setting aside VMRC’s
decision and remanding the matter back to VMRC to reinstate Parker’s and Insley’s licenses and
privileges.
II. ANALYSIS
The Virginia Administrative Process Act (“VAPA”) authorizes judicial review of agency
decisions. Code § 2.2-4026. Specifically, “under the VAPA, the circuit court’s role in an appeal
from an agency decision is equivalent to an appellate court’s role in an appeal from a trial court.”
Sch. Bd. of Cnty. of York v. Nicely, 12 Va. App. 1051, 1062, 408 S.E.2d 545, 551 (1991).
Code § 2.2-4027 provides that “[t]he duty of the court with respect to the issues of law
shall be to review the agency decision de novo.” However, “[w]hen the decision on review is to
be made on the agency record, the duty of the court with respect to issues of fact shall be to
determine whether there was substantial evidence in the agency record to support the agency
decision.” Code § 2.2-4027. This Court has held that “the phrase ‘substantial evidence’ refers to
‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’”
Hedleston v. Va. Retirement Sys., 62 Va. App. 592, 599, 751 S.E.2d 1, 4 (2013) (emphasis
added) (quoting Va. Real Estate Comm’n v. Bias, 226 Va. 264, 269, 308 S.E.2d 123, 125
(1983)). “‘[I]n the context of factual issues, the reviewing court shall take due account of the
presumption of official regularity, the experience and specialized competence of the agency, and
the purposes of the basic law under which the agency has acted.’” Doe v. Va. Bd. of Dentistry,
52 Va. App. 166, 175, 662 S.E.2d 99, 103 (2008) (en banc) (quoting Johnston-Willis, Ltd. v.
Kenley, 6 Va. App. 231, 242, 369 S.E.2d 1, 7 (1988)). “The reviewing court may reject the
agency’s findings of fact only if, considering the record as a whole, a reasonable mind would
-3-
necessarily come to a different conclusion.” Johnston-Willis, Ltd., 6 Va. App. at 242, 369
S.E.2d at 7.
A. There Was Substantial Evidence in the Record to Support VMRC’s Decision
Code § 28.2-232 provides that:
[VMRC] may revoke the fishing privileges within the
Commonwealth’s tidal waters and revoke, prohibit the issuance,
reissuance, or renewal of any licenses if, after a hearing held after
10 days’ notice to the applicant or licensee, it finds that the person
has violated any provision of this subtitle.
The duration of the revocation and prohibition shall be fixed by
[VMRC] up to a maximum of two years with the withdrawal of all
fishing privileges conferred by this title during that period, taking
into account (i) evidence of repeated or habitual disregard for
conservation, health and safety laws and regulations; (ii) abusive
conduct and behavior toward officers; and (iii) the severity of any
damage that has occurred, or might have occurred, to the natural
resources, the public health, or the seafood industry.
In other words, all that Code § 28.2-232 requires for VMRC to revoke a person’s fishing license
and privileges is a finding that “the person has violated any provision of this subtitle.” The
second paragraph of the statute relates only to VMRC’s decision regarding the appropriate
duration of the revocation period. Id.
In this case, there plainly was substantial evidence in the record to support VMRC’s
finding that both Parker and Insley had violated a provision within the “Tidal Fisheries”
subtitle—specifically, Code § 28.2-201; Code § 28.2-530; Code § 28.2-515; or Code § 28.2-517.
Evidence of their convictions was presented to VMRC at the hearing. Neither Parker nor Insley
disputed that they had been convicted. As explained above, the circuit court “may reject the
agency’s findings of fact only if, considering the record as a whole, a reasonable mind would
necessarily come to a different conclusion.” Johnston-Willis, Ltd., 6 Va. App. at 242, 369
S.E.2d at 7 (emphasis added). Here, there is no support for the proposition that a reasonable
mind would come to a conclusion other than that Parker and Insley had violated one of the
-4-
provisions of the subtitle. Consequently, the circuit court erred in finding that VMRC’s decision
to revoke Parker’s and Insley’s fishing licenses and privileges was not supported by substantial
evidence.
The second paragraph of Code § 28.2-232 dictates which factors VMRC must consider in
determining the appropriate duration of any revocation of fishing licenses or privileges and sets
the statutory maximum revocation period. However, “[a] statutory command to consider certain
decision making factors does not mean the factfinder must assign ‘measurable weight in the
decisional process’ to each factor or somehow quantify its impact on the final decision.”
Campbell v. Dep’t of Forestry, 46 Va. App. 91, 103, 616 S.E.2d 33, 38-39 (2005) (quoting
Owens v. Owens, 41 Va. App. 844, 860, 589 S.E.2d 488, 496 (2003)). “It means merely the
factfinder ‘cannot deem legally insignificant’ what the statute ‘declares to be significant.’” Id. at
103, 616 S.E.2d at 39 (quoting Owens, 41 Va. App. at 860, 589 S.E.2d at 496). An opposite
principle applies when a statute requires a specific finding as a precondition to agency action.
Id.
Code § 28.2-232 does not require that VMRC must affirmatively find evidence of any of
the factors listed as a precondition to revoke an individual’s fishing license and privileges. The
precondition to VMRC’s action to revoking licenses and fishing privileges is listed in the first
paragraph of Code § 28.2-232—a finding that a person has “violated any provision” within the
subtitle. Moreover, Code § 28.2-232 also does not require that VMRC must affirmatively find
evidence of one or any of the factors listed in fixing the duration of any revocation period. All
that is required in fixing the duration of the revocation period is that VMRC must consider
evidence of those factors in making its determination and cannot exclude any of the factors as
insignificant. See, e.g., Owens, 41 Va. App. at 859-60, 589 S.E.2d at 496 (holding that Code
§ 20-107.3(E) required the trial court only to consider the enumerated statutory factors in fixing
-5-
an equitable distribution award, and the court was only prohibited from failing to consider a
factor altogether). Therefore, as long as VMRC considered the three factors listed in the statute
in fixing the duration of the revocation period, VMRC’s actions were not beyond its statutory
discretion.
In this case, the circuit court held that it did not “think the evidence here substantially
supports the action that the VMRC took” and that “the action is too draconian given the nature of
the violations.” The circuit court held that as to factor (i) the term repeatedly “means again and
again,” and “in legal terms, it means a course of conduct.” Concluding that the evidence did not
support a finding that Parker’s or Insley’s convictions rose to a “course of conduct,” the circuit
court held that the evidence did not support a finding that the licenses ought to have been
revoked. However, the circuit court erred by ordering the reinstatement of appellees’ fishing
licenses and privileges because, as explained above, substantial evidence supported VMRC’s
finding that they had violated a provision of the subtitle given their undisputed convictions in
general district court. Furthermore, the circuit court’s observation that it thought the sanction
“too draconian” was not an appropriate consideration in its review of the commission’s
judgment. Because the presumption of regularity is not rebutted by the evidence in the record
and because there is affirmative evidence in the record that VMRC considered all three factors in
fixing the duration of their punishment, the circuit court erred in finding that the sanction
imposed by the VMRC was not substantially supported by the evidence.
Moreover, appellees’ revocation period did not exceed the statutory maximum of two
years. Absent extraordinary circumstances not present in this record, reviewing courts will not
-6-
judicially supersede an agency’s decision to impose a penalty within the statutory limits. See
Campbell, 46 Va. App. at 102, 616 S.E.2d at 38.3
In sum, we hold that the circuit court erred in finding that there was not substantial
evidence in the record to support VMRC’s decision to revoke Parker’s and Insley’s fishing
licenses and privileges for the period of one year.
B. VMRC Did Not Retroactively Apply Code § 28.2-232 to Insley
Effective July 1, 2013, Code § 28.2-232 was amended to additionally allow VMRC to
revoke “fishing privileges within the Commonwealth” as well as revoke fishing licenses. Insley
argues that because VMRC’s March 24, 2014 decision to revoke his fishing privileges and
license pursuant to Code § 28.2-232 was based in part on a conviction that occurred before the
July 1, 2013 effective date of the amendment—his February 20, 2013 violation—VMRC erred
by “retroactively” applying the amendment to Insley.
The United States Constitution and the Virginia Constitution prohibit the Commonwealth
from enacting ex post facto laws. That prohibition only extends to statutes that retroactively
impose penalties or where a change in the law retroactively alters the definition of the penal
conduct. See Kitze v. Commonwealth, 23 Va. App. 213, 216, 475 S.E.2d 830, 832 (1996).
“[T]he ex post facto inquiry focuses on ‘the quantum of punishment attached to the crime’ of
which the defendant had notice at the time of the offense.” Evans v. Commonwealth, 228 Va.
468, 476-77, 323 S.E.2d 114, 118 (1984) (quoting Dobbert v. Florida, 432 U.S. 282, 294 (1977)).
“‘Critical to relief under the Ex Post Facto Clause is not an individual’s right to less punishment,
but the lack of fair notice and governmental restraint when the legislature increases punishment
3
Parker and Insley base a large portion of their argument on the fact that the penalty
imposed was inconsistent with VMRC’s recommended penalty guidelines. However, as the
Commonwealth points out, these guidelines are not mandatory and do not carry with them the
force of the law. Such documents are not intended to be a substitute for the statute. See Jackson
v. W., 14 Va. App. 391, 399, 419 S.E.2d 385, 389 (1992).
-7-
beyond what was prescribed when the crime was consummated.’” Id. (quoting Weaver v.
Graham, 450 U.S. 24, 30 (1981)).
Assuming without deciding that a statute whose purpose is to revoke an individual’s
fishing license and privileges is sufficiently penal in nature to trigger the application of the Ex
Post Facto Clause, Insley’s argument still fails. See Smith v. Doe, 538 U.S. 84, 92 (2003)
(holding that in an ex post facto inquiry, the Court must first “ascertain whether the legislature
meant the statute to establish ‘civil’ proceedings,” but “[i]f the intention of the legislature was to
impose punishment, that ends the inquiry” and ex post facto concerns are applicable; “[i]f
however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we must
further examine whether the statutory scheme is so punitive either in purpose or effect as to
negate [the State’s] intention to deem it civil” (citations omitted)). In this case, no ex post facto
concerns are implicated because Insley’s license and fishing privileges were revoked pursuant to
Code § 28.2-232 based on conduct that occurred after the amendments. He had two violations of
the subtitle that occurred after the amendments on September 4, 2013 and December 2, 2013.
Accordingly, Insley was being punished for conduct that occurred after the change in the statute
and he was therefore on notice of the potential “quantum of punishment” attached to the
violation at the time it occurred.
In fixing the duration of the revocation period, VMRC was statutorily required to take
into consideration “evidence of repeated or habitual disregard for conservation, health and safety
laws and regulations.” Insley’s pre-amendment conduct, the February 20, 2013 violation, was
only considered in determining the appropriate length of his penalty. That conduct was illegal at
the time it occurred. Consideration of violations of other fishing laws that occurred before the
amendments to Code § 28.2-232 but were still illegal at the time of the offender’s conduct do not
raise any more ex post facto concerns when considered only for fixing the duration of the penalty
-8-
than the consideration of a prior criminal record would in sentencing in a criminal case. See,
e.g., United States v. Rodriquez, 553 U.S. 377, 385-86 (2008) (“When a defendant is given a
higher sentence under a recidivism statute—or for that matter, when a sentencing judge, under a
guidelines regime or a discretionary sentencing system, increases a sentence based on the
defendant’s criminal history—100% of the punishment is for the offense of conviction. None is
for the prior convictions or the defendant’s ‘status as a recidivist.’ The sentence ‘is a stiffened
penalty for the latest crime, which is considered to be an aggravated offense because [it is] a
repetitive one.’” (quoting Gryger v. Burke, 334 U.S. 728, 732 (1948))).
In sum, because VMRC’s decision to revoke Insley’s fishing license and privileges
pursuant to Code § 28.2-232 was based on a violation of the subtitle that occurred after the
amendments became effective, VMRC did not retroactively apply Code § 28.2-232 to Insley.
C. The Circuit Court Did Not Err in Denying an Award of Attorney’s Fees
Parker and Insley assign cross-error asserting that the circuit court erred by failed to
award them attorney’s fees. Specifically, they argue that an award of attorney’s fees was
mandatory under the law because they substantially prevailed and VMRC’s position was not
substantially justified. For the reasons explained above, VMRC’s position is not only
substantially justified, but also adequately supported by the law and the facts. Therefore, we
hold that the circuit court did not err in declining to award Parker and Insley attorney’s fees.
III. CONCLUSION
For the reasons stated above, we reverse the circuit court’s September 8, 2014 judgment
and order in part. We affirm that portion of the judgment and orders of the circuit court denying
attorney’s fees to Parker and Insley and remand these cases to the circuit court and direct that it
enter orders consistent with our decision.
Affirmed in part, reversed in part, and remanded.
-9- | 01-03-2023 | 04-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/8540621/ | Opinión disidente emitida por la
Jueza Asociada Señora Fiol Matta,
a la cual se une la Juez Asociada Señora Rodríguez Rodríguez.
Este Tribunal, nuevamente, le exige a las personas in-teresadas en la protección ambiental que cumplan con un grado de prueba mayor que el que nuestra doctrina re-quiere para demostrar la posibilidad de sufrir un daño irreparable. En esta ocasión, se tildan de “meras alegacio-nes” los argumentos presentados por un grupo de ciudada-nos y ciudadanas para que se paralice la concesión de per-misos para desarrollos en un área de alto valor ecológico, mientras el Tribunal de Apelaciones dilucida si se violaron las normas sobre planificación y la política pública ambien-tal al autorizar el desarrollo en esos terrenos. Así, una ma-yoría de este Tribunal permite que se inicien los procesos para construcciones en la zona del Corredor Ecológico del Noreste sin que se haya determinado finalmente si la libe-ración de esos terrenos previamente protegidos cumplió con las normas de planificación y protección ambiental. Por entender que ese proceder obstaculiza la labor del foro *1058apelativo y pone en peligro una reserva natural de gran importancia para el pueblo puertorriqueño, disiento.!1)
I
La Sentencia que avala una mayoría de este Tribunal reconoce que los tribunales apelativos tienen facultad para emitir órdenes, producto de mociones en auxilio de juris-dicción, con el propósito de hacer efectiva su jurisdicción en los asuntos que tienen pendientes y evitar fracasos en la administración de la justicia. En el caso del Tribunal de Apelaciones, esa potestad está establecida en la Regla 79 de su Reglamento y en ésta se basó el foro apelativo al tomar la decisión de paralizar temporeramente los trámi-tes administrativos relacionados con la concesión de permi-sos de construcción para el área cuya calificación y protec-ción se encuentra en controversia.
Uno de los reclamos de los grupos de ciudadanos en su recurso de revisión es que, utilizando erróneamente el me-canismo de exclusión categórica, las agencias no prepara-ron los documentos ambientales que nuestro ordenamiento requiere que se realicen antes de tomar decisiones que pueden afectar significativamente el medio ambiente. Rei-teradamente, hemos manifestado que estos estudios se tie-nen que llevar a cabo en las etapas más tempranas del proceso de planificación para el otorgamiento de permisos por parte del Gobierno.!(2) No tiene sentido posponer el aná-lisis sobre el impacto ambiental que podrían tener ciertos *1059desarrollos en el área del Corredor para después de que se hayan otorgado los permisos para los mismos, o, peor aún, después de que hayan iniciado las construcciones. Por eso, al paralizar la concesión de permisos mientras resuelve esta controversia, el Tribunal de Apelaciones, lógicamente, actuó para preservar su jurisdicción y evitar que el caso pendiente de adjudicación se tornara académico.
Además, los ciudadanos argumentan que la reclasifica-ción de ciertos terrenos del Corredor y hacer viable consul-tas de ubicación sobre éstos tiene el efecto de flexibilizar los criterios de evaluación de cumplimiento ambiental para los proyectos propuestos para el área. Permitir que se con-sideren las solicitudes de permisos antes de que se re-suelva el caso puede conllevar que el Gobierno tome deci-siones sobre bases inadecuadas. Si el recurso se resuelve a favor de Iniciativa para un Desarrollo Sustentable (IDS), los permisos concedidos podrían ser inválidos y se habrían desperdiciado recursos tanto del Estado como de las em-presas desarrolladoras.
El Estado alega que la orden del tribunal apelativo im-pide la gestión gubernamental al paralizar sus funciones ministeriales dirigidas a la sana administración pública.!3) Sin embargo, el foro apelativo fue muy cuidadoso al dictar su Resolución y limitó la paralización temporera a las so-licitudes de concesión de permisos de desarrollo y construc-ción en el área en controversia, haciendo la salvedad de que “[e] sta [paralización no será aplicable a cualquier ges-tión administrativa conducente a la realización de estudio, evaluación o documento ambiental dirigido a dar cumpli-miento al proceso de planificación ambiental”.!4) Por lo tanto, las funciones ministeriales primárias de las agen-cias de permisos del Gobierno nunca fueron suspendidas.
La paralización temporera tampoco provocaba un daño *1060a las partes interesadas en obtener los permisos, en parte porque las estadísticas sobre la actividad de la construc-ción demuestran que no existe demanda para desarrollos turísticos, residenciales y comerciales en estos momentos. (5) Esperar a que el Tribunal de Apelaciones resolviera la controversia no hubiese tenido un efecto significativo sobre proyectos en riesgo de quedarse estancados en la fase de construcción en lo que mejora la situación económica del País, como ha sucedido con muchos otros desarrollos en el área.(6)
Si el Tribunal de Apelaciones decidió acceder a la solici-tud de paralización fue porque evaluó las posiciones de am-bas partes y concluyó que el Corredor Ecológico sufriría un daño irreparable si no se suspendía la concesión de permi-sos, mientras que ni la otra parte ni el interés público ex-perimentarían un daño sustancial como consecuencia de la paralización. (7) Más importante aun, si el foro apelativo *1061concedió la paralización, en su sana discreción y amparado en su poder inherente para así hacerlo, fue porque enten-dió que de esa forma garantizaría su jurisdicción.(8) Al suspender los efectos de la orden de paralización, este Tribunal limita injustificadamente la facultad del foro apelativo de velar por mantener la eficacia de su jurisdicción.
II
Una mayoría de este Tribunal revoca sin mayor análisis la decisión del foro apelativo, que tomó en consideración no sólo la moción en auxilio de jurisdicción sino también el expediente completo del recurso de revisión y la oposición del Gobierno, para establecer un remedio que protegiera su jurisdicción con el menor impacto posible para la parte afectada. La Resolución del Tribunal de Apelaciones describe, específicamente, las acciones que se paralizaban y las acciones que podían continuar, lo cual demuestra que, distinto a lo que señala la Sentencia de este Tribunal, ese foro analizó cuidadosamente los criterios para conceder ór-denes de paralización.
Asimismo, la moción en auxilio de jurisdicción, que la Sentencia cataloga como escueta e insuficiente para pedir el remedio que concedió el Tribunal de Apelaciones, discute y fundamenta las razones por las cuales cumple con todos *1062los requisitos para la expedición del auxilio.(9) La Senten-cia de este Tribunal se basó únicamente en los señalamien-tos relacionados con el “daño irreparable” discutidos en la moción en auxilio de jurisdicción para su decisión de revo-car al foro apelativo. Contrario a lo que indica la Senten-cia, los señalamientos sobre el daño irreparable que sufri-rían los peticionarios de no concederse el auxilio no son “alegaciones en el vacío”, sino que hacen referencia al his-torial del Corredor y de la controversia ante el foro apela-tivo, así como a los documentos contenidos en el Apéndice del Recurso de Revisión, incluso las evaluaciones para de-sarrollos específicos de hoteles dentro del Corredor prepa-radas a petición del Gobierno y mapas de ubicación de pro-yectos propuestos.!(10) Además, se particularizan los proyectos que se encuentran ante la consideración de las agencias de permisos, que ubicarían dentro del área del Corredor cuya protección se reclama en el recurso ante el Tribunal de Apelaciones.!(11) De aprobarse estos proyectos, se construirían más de dos mil seiscientas (2,600) unidades residenciales y cuartos de hotel y condohotel, además de las instalaciones relacionadas con el funcionamiento de esos desarrollos y un centro comercial. La mayoría de esos *1063proyectos se encuentra en proceso de consulta de ubica-ción, el trámite administrativo para que la Junta de Plani-ficación evalúe usos de terrenos propuestos para zonas en las que éstos no están permitidos por la reglamentación aplicable, pero que esa agencia tiene discreción para autorizar.!(12)
La Sentencia que hoy se emite señala que la solicitud de auxilio no menciona permisos que ya se hayan aprobado ni presenta evidencia de construcciones que se estén reali-zando en el Corredor en el presente.!(13) Precisamente, eso es lo que IDS quiso evitar al pedir que se paralizaran las consultas de ubicación y los procesos de concesión de permisos. El fin de las consultas y los permisos es que se lleve a cabo un desarrollo, y el propósito de la petición de paralización es que no se construyan proyectos en los te-rrenos sobre los que trata el caso hasta tanto se adjudique el nivel de protección que merecen esas tierras y los requi-sitos de planificación ambiental que se tienen que cumplir si se permite algún tipo de desarrollo en el área.
Cuando se solicita una orden de paralización en auxilio de jurisdicción es porque, de no actuar con premura, las consecuencias serán irreversibles o el caso se tornará académico. En casos como el presente, en el que se argu-menta que se estarían permitiendo desarrollos sin haberse preparado los documentos ambientales requeridos y sin cumplir con las normas adecuadas de planificación, es de vital importancia la intervención oportuna de los tribunales.!14) Hemos establecido que incumplir con el re-querimiento de preparar una declaración de impacto am-biental, en las etapas más tempranas del desarrollo, es “de por sí considerado un daño irreparable” debido al carácter *1064permanente de los daños ambientales.(15) Además, Puerto Rico ha adoptado como política pública el principio inter-nacional de prevención o precautionary principle, que dicta que, cuando exista la posibilidad de daños graves o irrever-sibles al ambiente, no se pueden posponer las medidas para prevenirlos amparándose en que no hay certeza de que estos vayan a ocurrir/(16)
En ese contexto, llama la atención que la Sentencia de este Tribunal subraye que las mociones en auxilio de juris-dicción no se deben utilizar para casos que “no conlleven el nivel de importancia adecuado” y que se use ese criterio como fundamento para denegar la paralización solicitada en un caso como este, que, sin duda, es de alto interés público, basado en nuestra disposición constitucional y nuestra política pública de protección de los recursos naturales.(17) El Corredor Ecológico del Noreste es una de las áreas de mayor valor ecológico que tiene Puerto Rico.(18) Está compuesto por 3,057 cuerdas de terreno entre Luqui-11o y Fajardo, que incluyen casi todos los tipos de humeda-les costeros de la Isla y albergan más de 860 especies de flora y fauna, incluyendo 50 especies endémicas, vulnera-bles y en peligro de extinción, que dependen de la conser-vación integral de este ecosistema para sobrevivir/(19) Ade-más, la vida natural del Corredor interactúa con las zonas protegidas adyacentes de la Reserva Natural de Las Cabe-zas de San Juan, la Reserva Natural del Río Espíritu Santo y el Bosque Nacional El Yunque. En los últimos cua-*1065renta años, agencias estatales y federales han promovido diversas iniciativas para conservar los ecosistemas natura-les de esta región y organizaciones internacionales han so-licitado la protección del Corredor por ser el área de ani-daje más importante del tinglar, la tortuga marina más grande del mundo, que se encuentra en peligro de extinción. Si algún caso cumple con el requisito de “impor-tancia adecuada” enunciado por una mayoría del Tribunal es este caso.
El inmenso valor ecológico del Corredor llevó a que la totalidad de los terrenos que lo componen se declarara Re-serva Natural en el 2008, por orden ejecutiva.(20) Su impor-tancia también fue reconocida recientemente por el Senado y la Cámara de Representantes de Puerto Rico al aprobar, ambos cuerpos por unanimidad, el Proyecto 2282, que se convirtió en ley con la firma del gobernador Luis Fortuño el 25 de junio de 2012.(21) El proyecto de ley, que se identi-fica como “un primer paso para proteger efectivamente y a perpetuidad los terrenos que componen el Corredor Ecoló-gico del Noreste”,(22) afirma que “[a] pesar de su gran valor natural, el CEN ha estado amenazado por la propuesta construcción de varios proyectos residenciales-turísticos y el desparrame urbano experimentado durante las últimas décadas en la zona costanera y en la región noreste de la Isla”.(23) La nueva ley ordena la conservación de todos los terrenos públicos y patrimoniales del Estado dentro del Corredor, equivalentes al 66% de la reserva natural original. (24)
*1066Asimismo, la trascendencia de esta zona para la socie-dad puertorriqueña se reflejó en la presentación de cuatro alegatos como amigos de la corte en el presente caso de agrupaciones que incluyeron las organizaciones profesio-nales Sociedad Puertorriqueña de Planificación y Colegio de Arquitectos y Arquitectos Paisajistas, así como las co-munidades católicas y evangélicas de los pueblos aledaños al Corredor. Todas estas personas expresaron su preocupa-ción ante el peligro en el que este Tribunal colocó al Corre-dor al suspender la paralización ordenada por el foro ape-lativo y las repercusiones que la resolución de esta controversia tendrá sobre la conservación de los recursos naturales del País y su disfrute por las generaciones pre-sentes y futuras.(25)
La designación del Area de Planificación Especial de la Gran Reserva del Noreste, que se está impugnando en el Recurso de Revisión, se aprobó mediante exclusión categó-rica, un mecanismo para eximir del requisito de preparar *1067un documento ambiental —evaluación ambiental o decla-ración de impacto ambiental— reservado para situaciones en las que se determina que la acción propuesta es prede-cible o rutinaria que no tendrá un impacto ambiental significativo. Las construcciones de proyectos en los terre-nos del Corredor que antes estaban protegidos se viabiliza-ron de acuerdo con el Plan y Reglamento de Calificación Especial de la nueva Gran Reserva, que también se está impugnando en el Recurso de Revisión y que permite la recalificación de los terrenos para consentir usos más intensos. La moratoria a las consultas de ubicación, los permisos y las obras de construcción en el área del Corre-dor que estuvo vigente desde el 2009 se eliminó con la aprobación del Area de Planificación E special. (26) A este panorama se añade la simplificación de los procesos para ob-tener permisos de construcción y la reducción de mecanis-mos de revisión administrativa sobre otorgación de permisos que estableció la Ley para la Reforma de los Pro-cesos de Permisos de Puerto Rico.(27)
Ante este cuadro y el hecho de que los terrenos del Co-rredor eliminados de la zona protegida mediante la apro-bación del Area de Planificación Especial de la Gran Re-serva del Noreste corresponden a los que han sido identificados para construir los proyectos incluidos en la lista que se presentó en la moción de auxilio de IDS, era lógico que el Tribunal de Apelaciones concluyera que, de no emitir la orden de paralización con carácter de urgencia, los peticionarios se expondrían a un daño irreparable. Este Tribunal debió haberle brindado deferencia a esa decisión y haberle permitido que resolviera los méritos del caso ante sí con la garantía de no perder su jurisdicción que le proveía la paralización. Si algún caso era de tal importan-*1068cia que exigía que el foro apelativo actuase en auxilio de su jurisdicción, éste era el caso. No es razonable esperar a cuando ya sea muy tarde.
Por todo lo anterior, disiento.
(1) Los hechos más relevantes para la controversia están resumidos en la Sen-tencia, por lo que no los repetiremos. No obstante, debemos resaltar unos datos que no se mencionan en la Sentencia y que están directamente relacionados con uno de los señalamientos de error del recurso de revisión. Estos son: que el Plan de Califi-cación del Área de Planificación Especial de la Gran Reserva del Noreste no estuvo disponible para el público interesado en presentar comentarios en la vista en la fecha requerida y que no se permitió que todas las personas que solicitaron deponer en la vista participaran.
(2) Misión Ind. P.R. v. J.C.A., 145 D.P.R. 908, 925 (1998). Véase, también, Lozada Sánchez et al. v. JCA, 184 D.P.R. 898 (2012).
(3) Petición de certiorari, págs. 20-21.
(4) Resolución del TA, KLRA 2011 00747, pág. 3. Apéndice de la Petición de certiorari, pág. 5.
(5) Véase Alegato como amicus curiae del Colegio de Arquitectos y Arquitectos Paisajistas de Puerto Rico de 13 de febrero de 2012, págs. 10-11.
(6) Véase Solicitud de Intervención como Amigo de la Corte y Alegato del Mon-señor Eusebio Ramos Morales de 13 de febrero de 2012, pág. 5. El Obispo de la Diócesis Católica de Fajardo-Humacao expresó que los desarrollos turísticos y comer-ciales que amenazan la integridad del Corredor son innecesarios porque en la Carre-tera Núm. 3 hay tres proyectos a mitad y en áreas cercanas hay muchos otros abandonados. Véanse, también: Departamento de Recursos Naturales y Junta de Planificación, Declaración de Impacto Ambiental Estratégica, Plan Integral de Usos de Terrenos y Manejo de la Reserva Natural del Corredor Ecológico del Noreste, septiembre 2008, págs. 155-180, 219-220 y 259-267; Apéndice de la Petición de certiorari, págs. 1141-1165, 1205-1206 y 1245-1253. El Plan Integral, por ejemplo, señala que, según análisis preparados por la Asociación de Bancos, la demanda de vivienda en la región noreste ha sufrido una reducción drástica. Id., pág. 174; Apén-dice de la Petición de certiorari, pág. 1160. El inventario de habitaciones e instala-ciones turísticas en la zona es extenso. íd., págs. 174-179; Apéndice de la Petición de certiorari, págs. 1160-1165.
(7) Es necesario señalar que, utilizando el mismo análisis que plantea la Sen-tencia, se tendría que concluir que la solicitud de auxilio presentada por el Gobierno ante este Tribunal no cumplió con los requisitos para que se suspendieran los efectos de la paralización decretada por el foro apelativo. Esto porque no contiene argumen-tos sobre un perjuicio directo e inmediato. Sólo menciona, en términos generales, que se paralizan “ciertas funciones consecuentes a la difícil labor de implantación de política pública de gobierno”, a pesar de que la Resolución del Tribunal de Apelacio-nes excluye expresamente de la paralización ciertas funciones administrativas nece-sarias para formular la política pública. Lo que paralizó el foro apelativo fue la consideración y la concesión de permisos a entes privados. Siguiendo las exigencias de la Sentencia, habría que observar que la moción del Gobierno no incluyó una lista *1061de proyectos que se encontraran en esa etapa y tuvieran un impacto positivo en el interés público. Faltando esto, y según el método de análisis que adopta una mayoría de este Tribunal, es forzoso concluir que la paralización concedida por el Tribunal de Apelaciones no estaba causando daño alguno.
(8) García López y otros v. E.L.A., 185 D.P.R. 371 (2012). Vale recalcar que los criterios para emitir órdenes de paralización —la probabilidad de prevalecer en los méritos de la apelación, el daño irreparable que sufrirá el peticionario de no conce-derse, que las demás partes interesadas no sufrirán un daño sustancial si se concede y que no se peijudica el interés público con la concesión — • se establecieron en Peña v. Federación de Esgrima de P.R., 108 D.P.R. 147, 154 (1978), para guiar a los juzgadores. No obstante, el propósito de ese análisis no es verificar que se cumpla con lo que se puede interpretar que significa cada criterio por separado, sino que los tribunales puedan determinar si una orden de ese tipo es necesaria para preservar su jurisdicción en el caso que tengan pendiente de adjudicación.
(9) Aunque la cantidad de palabras contenidas en una moción no importa tanto como su contenido, debemos aclarar que, cuando la Sentencia enfatiza que la moción en auxilio de jurisdicción sólo incluye cinco párrafos de alegaciones, se refiere a la discusión bajo el acápite de “daño irreparable”, que se tiene que leer en conjunto con otras secciones de la moción a las que hace referencia. La moción, que tiene nueve páginas en total, incluye fundamentos para evidenciar que cumple con todos los requisitos del citado Peña v. Federación de Esgrima de P.R.
(10) Sentencia, pág. 10. Moción Solicitando Orden en Auxilio de Jurisdicción ante el Tribunal de Apelaciones, págs. 2-3 y 5-6, Apéndice de la Petición de certio-rari, págs. 123-124 y 126-127.
(11) La moción enumera cinco proyectos que se encuentran en proceso de eva-luación para construirse dentro del Corredor, con sus números de caso ante las agen-cias: “San Miguel Resort (DIA-PA JCA-01-0030 (CT) / C.U. 2001-23-0961-JPU); Dos Mares Resort (DIA-E JCA-99-015 (JP) / C.U. 1998-24-0681-JPU); Paradise Found Villas (C.U.2006-24-0534-JPU); Seven Seas Resort (C.U.1996-24-0003-JPU), y Playa Azul Center (C.U.2008-23-0444-JPU)”. Moción Solicitando Orden en Auxilio de Ju-risdicción ante el Tribunal de Apelaciones, pág. 3, Apéndice de la Petición de certio-rari, pág. 124. También menciona otros proyectos pendientes en áreas cercanas al Corredor, resoluciones de la Junta de Planificación y controversias sobre derechos de opción sobre terrenos públicos en el Corredor. Id.
(12) Véase Asoc. Vec. H. San Jorge v. U. Med. Corp., 150 D.P.R. 70, 79-80 (2000).
(13) Sentencia, pág. 10.
(14) Por ejemplo, a principios de este mes ordenamos que se suspendiera el permiso de construcción de una torre de telecomunicaciones mientras atendíamos la controversia de si se cumplió con lo dispuesto en los reglamentos de planificación al otorgar el permiso. Municipio de San Sebastián v. QMC Telecom, LLC, CC-2012-233.
(15) Misión Ind. P.R. v. J.P. y A.A.A., 142 D.P.R. 656, 681-682 (1997).
(16) Art. 4(b)(5) de la Ley sobre Política Pública Ambiental, Ley Núm. 416-2004 (12 L.P.R.A. sec. 8001a(b)(5)).
(17) Sentencia, pág. 8. Véase Art. VI, sec. 19, Const. P.R., L.P.R.A., Tomo 1.
(18) Véase Exposición de Motivos del P. del S. 2282 de 22 de septiembre de 2011.
(19) Véase Departamento de Recursos Naturales y Junta de Planificación, De-claración de Impacto Ambiental Estratégica, Plan Integral de Usos de Terrenos y Manejo de la Reserva Natural del Corredor Ecológico del Noreste, septiembre 2008, págs. 31-153, 181-220; Apéndice de la Petición de certiorari, págs. 1019-1139,1167-1206. íd., Anejos 6-13 (listas de elementos críticos, invertebrados, peces, anfibios, reptiles, aves, mamíferos y plantas que se encuentran en el Corredor); Apéndice de la Petición de certiorari, págs. 1426-1480.
(20) Órdenes Ejecutivas OE-2007-37 y OE-2008-22; Junta de Planificación, Re-soluciones PU-02-2008-24 y R-08-37-2.
(21) La medida fue aprobada en el Senado el 23 de abril de 2012 y en la Cámara el 21 de mayo de 2012. Las enmiendas sugeridas por el Gobernador para aclarar unas incongruencias en los números de catastro que se citaban fueron aprobadas por la Cámara y el Senado el 14 de junio de 2012.
(22) P. del S. 2282 de 22 de septiembre de 2011, pág. 4.
(23) íd., pág. 3.
(24) Aún quedarían desprotegidas 450 cuerdas de los terrenos del Corredor, den-tro de las cuales están proyectados los desarrollos en pugna.
(25) La Sociedad Puertorriqueña de Planificación indicó que, debido a su deber ético de contribuir al mejor desarrollo urbano, ambiental, social y económico de Puerto Rico; al alto interés público de la controversia y a que siempre ha abogado por la protección íntegra del Corredor, recomendada mantener la paralización de los trámites de permisos. Explicó que, de lo contrario, se permitiría un cambio drástico en las calificaciones de uso del suelo y la construcción de proyectos que, sin la debida planificación, impactarían significativamente los ecosistemas de la zona. Véase Mo-ción para Intervenir como Amicus Curiae de la Sociedad Puertorriqueña de Planifi-cación de 13 de febrero de 2012. El Colegio de Arquitectos urgió a mantener la paralización. Señaló que argumentar que los daños ocasionados por un permiso son especulativos porque sólo la construcción efectiva puede tener impacto en el am-biente equivale a erradicar la función previsora de la planificación. Afirmó que es imperativo corregir la idea expresada por el Estado de que un plan que incide sobre la calificación del suelo no conlleva, de por sí, efecto ambiental alguno. Véase Alegato del Colegio de Arquitectos, supra. La Iglesia Evangélica Unida de Puerto Rico ha solicitado, desde el 2007, que se proteja el Corredor, pues sus miembros disfrutan de los recursos naturales del área y entienden que es responsabilidad de los seres hu-manos promover la justicia ecológica ya que Dios creó la naturaleza con un propósito definido y las personas no pueden alterarlo mediante una explotación irresponsable que resulta en la degradación de su calidad de vida. Véase Solicitud de Intervención como Amigo de la Corte y Alegato del Reverendo Edward Rivera Santiago de 13 de febrero de 2012. La Diócesis Católica de Fajardo-Humacao también ha pedido que se mantenga el Corredor como una reserva ecológica y los feligreses de las parroquias cercanas al Corredor participan en actividades de concienciación sobre la importan-cia de los recursos naturales de la zona y la protección del tinglar como parte de su deber cristiano de proteger la creación para el bienestar de la humanidad. Véase Alegato del Monseñor Ramos Morales, supra.
(26) La Junta de Planificación estableció la moratoria en su Resolución PU-002CEN-24(23) de 3 de noviembre de 2009 y la extendió mediante sus Resoluciones PU-002-CEN-24(23)-02 de 5 de mayo de 2010 y PU-002-CEN-24(23)-03 de 27 de agosto de 2010.
(27) Ley Núm. 161-2009 (23 L.P.R.A. secs. 9011-90280. | 01-03-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/3056781/ | Case: 10-15528 Date Filed: 10/11/2012 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 10-15528
Non-Argument Calendar
________________________
D. C. Docket No. 1:09-cr-00134-JOF-JFK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CURTIS JEROME BROWN, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(October 11, 2012)
Before HULL, EDMONDSON and BLACK, Circuit Judges.
PER CURIAM:
Case: 10-15528 Date Filed: 10/11/2012 Page: 2 of 8
Curtis Jerome Brown, Jr., appeals his convictions for making a false entry in
a record or document, 18 U.S.C. § 1519 (“Count Two”), engaging in misleading
conduct, 18 U.S.C. § 1512(b)(3) (“Count Four”), making false statements to a federal
agent, 18 U.S.C. § 1001 (“Count Five”), and obstructing, influencing or impeding a
federal grand jury, 18 U.S.C. § 1503 (“Count Nine”). Brown was sentenced to 27
months’ imprisonment for each count, to run concurrently. No reversible error has
been shown; we affirm.
Brown worked as a detention officer at the Fulton County Jail in Atlanta,
Georgia. His convictions stem from incidents involving two different inmates. On
Count Two, Brown was convicted of knowingly falsifying and making a false entry
in an incident report about the use of force against inmate M.A. with the intent to
impede, obstruct, and influence a federal investigation. Counts Four, Five, and Nine
arose from Brown’s attempts -- in an incident report, his statements to federal agents,
and in his grand jury testimony -- to falsify and conceal information about his
physical encounter with inmate R.G. before R.G.’s in-custody death.
Brown raises four issues on appeal. First, he challenges the admission of
evidence that R.G. died as both irrelevant under Federal Rule of Evidence 402 and
unduly prejudicial under Rule 403. We review the district court’s decision to admit
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or exclude evidence for abuse of discretion. United States v. Church, 955 F.2d 688,
700 (11th Cir. 1992).
Evidence that R.G. died was relevant to Counts Four, Five, and Nine against
Brown, all of which charged Brown with concealing information about his physical
encounter with R.G. moments before R.G.’s death. In particular, R.G.’s death helps
put Brown’s offenses into context and explains Brown’s potential motive to lie. See
id. (stating that “[e]vidence, not part of the crime charged but pertaining to the chain
of events explaining the context, motive and set-up of the crime, is properly admitted
if . . . [it] forms an integral and natural part of an account of the crime, or is necessary
to complete the story of the crime for the jury.”). Evidence that R.G. died was also
relevant to explain why R.G. did not testify about his encounter with Brown. See
United States v. Accentturo, 966 F.2d 631, 637 (11th Cir. 1992) (concluding that
evidence of the victim’s death was relevant to explain why the victim did not testify
at trial).
Even when evidence is relevant, a district court may still exclude it under Rule
403 if the evidence’s “probative value is substantially outweighed by the danger of
unfair prejudice . . . .” Fed.R.Evid. 403. Rule 403 is an extraordinary remedy that
should be invoked only sparingly. United States v. Alfaro-Moncada, 607 F.3d 720,
734 (11th Cir. 2010). Thus, “‘in reviewing issues under Rule 403, we look at the
3
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evidence in a light most favorable to its admission, maximizing its probative value
and minimizing its undue prejudicial impact.’” Id. “Only if the decision to admit
evidence over a Rule 403 challenge is unsupportable when the evidence is viewed in
the light most supportive of the decision will we say that the decision constitutes an
abuse of discretion.” United States v. Jernigan, 341 F.3d 1273, 1285 (11th Cir.
2003).
We cannot say that the district court abused its discretion in admitting evidence
that R.G. died. The evidence was probative to the charged offenses; and the district
court and both lawyers minimized the prejudicial impact of the evidence by
explaining to the jury that Brown was not charged with causing R.G.’s death, with
assaulting R.G., or with using excessive force. Viewing the evidence in the light
most favorable to its admission, the evidence that R.G. died was not subject to
exclusion under Rule 403.
Next, Brown argues that the district court erred by admitting testimony about
the cause of R.G.’s death, alleging that the testimony was both irrelevant and unduly
prejudicial. Because Brown failed to object on these grounds at trial, our review is
only for plain error. See United States v. Edouard, 485 F.3d 1324, 1343 (11th Cir.
2007).
4
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At trial, the prosecutor elicited testimony that the medical examiner’s
preliminary opinion about the cause of R.G.’s death was different from the ultimate
conclusion that R.G. died of natural causes.1 Even if we assume -- without deciding
-- that the district court committed plain error in admitting this testimony, Brown has
failed to demonstrate that such error affected his substantial rights. “For an error to
affect substantial rights, . . . ‘[i]t must have affected the outcome of the district court
proceedings.’” Id. at 1343 n.7. Substantial evidence supports the jury’s guilty
verdicts and nothing evidences that the brief testimony about the cause of R.G.’s
death affected the jury’s decision.
About Counts Two, Four, and Five, Brown argues that the district court
violated Garrity v. New Jersey, 87 S. Ct. 616 (1967), by admitting into evidence the
incident reports that he prepared about his encounters with M.A. and R.G. and his
statements to federal agents. In Garrity, the United States Supreme Court concluded
that, absent a knowing and voluntary waiver, incriminating statements made by law
enforcement officers under threat of termination for remaining silent are inadmissible
in later criminal proceedings. 87 S. Ct. at 620.
1
The challenged testimony revealed only that the medical examiner’s preliminary findings
differed from the cause of death reported on R.G.’s death certificate. The substance of the medical
examiner’s preliminary findings were not disclosed to the jury.
5
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But we have concluded that, “[a]lthough an accused may not be forced to
choose between incriminating himself and losing his job under Garrity, neither
Garrity nor the Fifth Amendment prohibits prosecution and punishment for false
statements or other crimes committed during the making of Garrity-protected
statements.” United States v. Veal, 153 F.3d 1233, 1243 (11th Cir. 1998) (emphasis
in original). “Giving a false statement is an independent criminal act that occurs
when the individual makes the false statement; it is separate from the events to which
the statement relates, the matter being investigated.” Id. (emphasis in original).
Because Brown was prosecuted for making misleading statements in his incident
reports and in his interview with federal agents -- not for the conduct described in
those statements -- he is unentitled to protection under Garrity or the Fifth
Amendment. Thus, the district court’s admission of Brown’s incident reports and
statements to federal agents was proper.
Brown also contends that the prosecutor engaged in prosecutorial misconduct
by failing to correct a government witness’s false material testimony. Chantae
Taylor, who was on duty at the jail during the R.G. incident, testified at both Brown’s
trial and in a related case about what she witnessed that night. Comparing Taylor’s
testimony at both trials, Brown identifies six inconsistencies that he contends consist
6
Case: 10-15528 Date Filed: 10/11/2012 Page: 7 of 8
of perjured statements on material matters.2 Because Brown failed to object to
Taylor’s testimony at trial, we review this issue only for plain error. See Edouard,
485 F.3d at 1343.
“To establish prosecutorial misconduct for the use of false testimony, a
defendant must show the prosecutor knowingly used perjured testimony, or failed to
correct what he subsequently learned was false testimony, and that the falsehood was
material.” United States v. McNair, 605 F.3d 1152, 1208 (11th Cir. 2010), cert.
denied, 131 S. Ct. 1599, 1600 (2011). “Perjured testimony is defined as testimony
‘given with the willful intent to provide false testimony and not as a result of a
mistake, confusion, or faulty memory.’” Id. “The false testimony is deemed material
if there is a reasonable likelihood the false testimony could have affected the
judgment of the jury.” Id.
While aspects of Taylor’s testimony were inconsistent with her testimony in
an earlier related case, nothing evidences that Taylor willfully intended to provide
false testimony or that the prosecutor knowingly presented perjured testimony.
Moreover, Brown has failed to demonstrate that Taylor’s alleged false statements
2
In particular, Brown contends that Taylor provided conflicting testimony about these six details:
(1) whether she called Brown or asked Brown in person to help with R.G.; (2) when she first
approached R.G.’s cell; (3) what happened when Brown and another officer entered R.G.’s cell; (4)
how and when R.G.’s cell window shattered; (5) how R.G. was acting during mealtime; and (6)
when R.G. was found unresponsive.
7
Case: 10-15528 Date Filed: 10/11/2012 Page: 8 of 8
were material. Despite the discrepancies in Taylor’s testimony, she -- and a second
government witness -- testified consistently that Brown entered R.G.’s cell and used
physical force against him. Because the charges against Brown accused Brown of
concealing that he had entered R.G.’s cell and that he had any contact with R.G. in
the moments leading up to R.G.’s death, the exact details of Brown’s encounter with
R.G. are immaterial to the charges against Brown. Thus, even to the extent that
Taylor testified falsely about the details of that encounter, her false testimony would
not have affected the jury’s outcome.
AFFIRMED.
8 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3056782/ | Case: 11-11191 Date Filed: 10/11/2012 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-11191
________________________
D. C. Docket No. 1:06-cv-21598-PCH
CC-AVENTURA, INC.,
Plaintiff - Counter Defendant - Appellee,
CLASSIC RESIDENCE MANAGEMENT LIMITED PARTNERSHIP,
Plaintiff - Appellee,
versus
WEITZ COMPANY, LLC,
Defendant - Cross Defendant - Cross Claimant -
Counter Claimant - Third Party Plaintiff -
Counter Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 11, 2012)
Before DUBINA, Chief Judge, and PRYOR and ANDERSON, Circuit Judges.
Case: 11-11191 Date Filed: 10/11/2012 Page: 2 of 7
PER CURIAM:
In this surety case, obligee/contractor Weitz contends that the district court
erred by failing to properly follow the majority opinion in Dooley & Mack
Constructors, Inc. v. Developers Surety & Indemnity Co., 972 So. 2d 893 (Fla.
Dist. Ct. App. 2007). The district court concluded that the surety Fidelity was not
liable on a surety bond because Weitz had failed to give notice to Fidelity of the
subcontractor Aero’s default before Weitz undertook to remedy the default itself.
In Dooley, the subcontractor defaulted on its obligations. Id. at 894. Rather
than notify the surety, the obligee/contractor remedied the default itself and then
brought suit against the surety. Id. The majority in Dooley interpreted the surety
bond (which included by incorporation the subcontract between the
obligee/contractor and the subcontractor) to have two alternative routes by which
the surety could face liability if the subcontractor defaulted on its obligations: (1)
the bond itself stated that the obligee/contractor could notify the surety of the
default and require that the surety remedy the default; or (2) the subcontract
(incorporated into the bond) stated that the obligee/contractor could remedy the
default itself and then later sue the surety to cover the shortfall.
The Dooley majority conceded that if the obligee/contractor had proceeded
under the first route, then it would have been required to first give notice to the
2
Case: 11-11191 Date Filed: 10/11/2012 Page: 3 of 7
surety, because that provision was included with “standard” surety bond language
that requires the obligee/contractor to first give notice. Id.1 But the court
concluded that the second route (where the obligee/contractor could remedy the
default itself) did not include any of the “standard” surety language that requires
notification, id. at 895, and it also did not include any other language explicitly
requiring notice to be given, id. (citing RLI Ins. Co. v. St. Patrick’s Home for the
Infirm & Aged, 452 F. Supp. 2d 484 (S.D.N.Y. 2006), for the proposition that the
“absence of [an] explicit notice requirement of principal’s default to surety
distinguishes cases finding that notice is condition precedent to surety’s payment
under bond.”). Since the obligee/contractor proceeded under this second route, it
did not have to give prior notice to the surety.
In the case sub judice, the bond (and, by incorporation, the subcontract)
similarly has two routes by which the surety could be exposed to liability if the
subcontractor defaulted: the surety could undertake to remedy the default, or the
obligee/contractor could undertake to remedy the default. But unlike the scenario
in Dooley, the record in this case shows that both routes did include an explicit
1
The Dooley majority noted that “[u]nder a familiar term of a ‘standard’ surety
bond, which is included in this one, such a failure [to first provide notice to the surety] would
indeed result in a termination of the surety’s obligations.” Dooley, 972 So. 2d at 894. The
“familiar term” of a “standard” surety bond in Dooley was quoted as: “Whenever subcontractor
shall be, and declared by Obligee to be in default under the Subcontract, . . . the Surety may
promptly remedy the default . . . .” Id. at 894 n.1 (emphasis in original).
3
Case: 11-11191 Date Filed: 10/11/2012 Page: 4 of 7
requirement that notice first be given to the surety,2 and it also was included along
with the same provision as the “standard” language that would require notice to
first be given (as Dooley itself acknowledged).
In other words, the language of the relevant documents in Dooley was
different from the relevant language here. In Dooley, the subcontract gave the
general contractor “the option, but not the obligation, to notify.” In contrast, the
subcontract in this case made reference to Weitz’s ability to remedy the default, but
only after Weitz terminated the subcontractor’s performance for cause, and thus
only after reasonable notice.3 Reading all the language in the relevant documents
2
The pertinent part of the bond stated:
Whenever Principal shall be, and be declared by Obligee to be in default under the
subcontract, the Obligee having performed Obligee’s obligations thereunder:
(1) Surety may promptly remedy the default subject to the provisions of paragraph
3 herein, or;
(2) Obligee after reasonable notice to Surety may, or Surety upon demand of
Obligee may arrange for the performance of Principal’s obligation under the
subcontract subject to the provisions of paragraph 3 herein; . . . .
Doc. 1173-3 (emphasis added).
3
Section 10.1 of the subcontract provided:
If [Aero] fails or neglects to carry out [its] Work in strict compliance with the
Subcontract Documents or is otherwise in default of any of its obligations under
the Subcontract Documents, and fails to commence and continue correction of
such default or neglect with diligence and promptness, [Weitz] may, after 48
hours following delivery to [Aero] of written notice thereof and without prejudice
to any other remedy [Weitz] may have, (i) supplement [Aero’s] performance with
4
Case: 11-11191 Date Filed: 10/11/2012 Page: 5 of 7
here harmoniously in order to give effect to all provisions, as Florida law requires,
it is clear in this case that the surety, Fidelity, had a right to reasonable notice
before Weitz undertook to arrange for the performance of the work to cure the
default.4 In Dooley, the obligee/contractor proceeded under a route that did not
additional material, supplies, equipment or labor, pay for same and deduct the
amount so paid from any money then or thereafter due [Aero] (if such offset is not
sufficient, [Aero] shall pay any deficiency promptly upon demand), or (ii)
terminate [Aero’s] continuing performance under the Agreement. Termination of
performance may be immediate (without prior notice) in the event of conditions
hazardous to persons or property. Such termination of performance shall be
deemed for cause, and Section 10.4 [Consequences of Termination for Cause]
shall apply thereto.
Section 10.4 provided:
Upon a termination of [Aero’s] continuing performance under the Agreement for
cause, [Weitz] may, without limitation to any other available remedies, proceed as
follows: (i) direct [Aero] to immediately leave the site, but to give possession of
all completed materials and supplies at the site or stored off-site, to [Weitz] for
use in completing [Aero’s] Work; . . . [Weitz] shall also provide or cause to be
provided such other materials, supplies, tools, equipment, machinery, labor,
services and other items necessary to complete [Aero’s] Work; or (ii) by
registered or certified mail addressed to [Fidelity] . . . require [Fidelity] to provide
such materials, supplies, tools, equipment, machinery, labor, services and other
items as may be necessary to complete [Aero’s] Work in strict compliance with
the Subcontract Documents. [Weitz] shall apply any unpaid balance of the
Subcontract Sum to pay for such completion costs; provided, that [Weitz] may
first require [Aero] or [Fidelity] . . . to fund any anticipated excess completion
costs. In all such events, if the unpaid balance of the Subcontract Sum exceeds the
costs of completing [Aero’s] Work together with interest on such costs and
together with any offsets and deductions available to [Weitz], such excess shall be
paid to [Aero]. However, if such costs, interest deductions and offsets exceed such
unpaid balance, [Aero] or [Fidelity] shall pay the difference to [Weitz] upon
demand.
4
See note 2, supra.
5
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require notice to first be given to the surety, and so the surety was not relieved of
its obligations just because the obligee/contractor failed to give notice before
undertaking to remedy the default itself. But in our case, the contract language was
written differently, and it did require that Weitz first give notice to the surety
before Weitz undertook to remedy the default itself.
Weitz’s argument has been that it did not need to give notice before
undertaking to remedy the default itself. Accordingly, Weitz has not challenged
the district court’s conclusion it never sent “reasonable notice” to Fidelity.5
Because Weitz was required to give reasonable notice to Fidelity before
Weitz undertook to remedy Aero’s default, and because Weitz has failed to
challenge the district court’s conclusion that Weitz never gave reasonable notice,
we agree with the district court that Fidelity is not liable on the surety bond. As
Dooley stated, under Florida law, a surety is relieved of its obligation if the
obligee/contractor fails to give the notice that is required by the bond. See Dooley,
972 So. 2d at 894.
For the foregoing reasons, the judgment of the district court is
5
Weitz’s reply brief suggests that failure to thus notify a surety of default
(triggering the surety’s right to cure the default) would discharge a surety only upon a showing of
prejudice. We decline to address that argument because it was raised for the first time in the
reply brief.
6
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AFFIRMED.
7 | 01-03-2023 | 10-14-2015 |
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-15440
Non-Argument Calendar
________________________
D.C. Docket No. 2:10-cr-14063-KMM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM FRANK SIMMONS, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(October 2, 2012)
Before HULL, FAY and ANDERSON, Circuit Judges.
PER CURIAM:
After pleading guilty to failure to surrender for service of a sentence, in
Case: 11-15440 Date Filed: 10/02/2012 Page: 2 of 10
violation of 18 U.S.C. § 1346(a)(2), William Simmons, Jr. appeals his 21-month
sentence. On appeal, Simmons argues that his 21-month federal sentence is
substantively unreasonable because the district court imposed it consecutively to
his state sentence. After review, we affirm.
I. BACKGROUND FACTS
A. Prior 2010 Fraud Conspiracy Sentence
In 2010, in federal court, Simmons was convicted of conspiracy to commit
wire, mail and bank fraud and was sentenced to 21 months’ in prison. On June 14,
2010, Simmons failed to report to the U.S. Marshal’s Office to begin serving his
21-month sentence. As a result, a warrant was issued for Simmons’s arrest.
B. Failure-to-Surrender Charge
On June 24, 2010, a grand jury charged Simmons with the instant offense of
failure to surrender. On July 22, 2010, the district court transferred the new
criminal case to the clerk’s fugitive file until Simmons was apprehended.
C. State Conviction and Sentence
On October 21, 2010, Simmons was arrested on a Florida state charge of
failing to return a leased vehicle. Simmons was convicted of that state offense on
July 21, 2011. Because Simmons was a habitual felony offender under Florida
law, the state court imposed an eight-year sentence. On August 12, 2011,
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Simmons was still serving this eight-year state sentence when he was arrested on
the instant federal failure-to-surrender charge.
C. Federal Plea and Sentencing
On September 7, 2011, Simmons pled guilty in federal court to the failure-
to-surrender charge. The Presentence Investigation Report (“PSI”) calculated his
total adjusted offense level as 9. The PSI scored 27 criminal history points based
on Simmons’s extensive criminal history. In addition to his state conviction for
failing to return a leased vehicle and his federal conviction for conspiracy to
commit wire, mail and bank fraud, Simmons’s criminal history included numerous
theft-related convictions (such as grand theft, robbery, burglary, forging checks
and petit theft), trespass, battery and possession of marijuana.
Simmons’s criminal history category of VI and total offense level of 9
yielded an advisory guidelines range of 21 to 27 months’ imprisonment.
Simmons’s statutory maximum sentence was ten years. See 18 U.S.C.
§ 3146(b)(1)(A)(i). Simmons initially made one objection to the PSI’s criminal
history score, but withdrew the objection after the PSI was revised.
At sentencing, Simmons requested a 21-month sentence, at the low end of
advisory guidelines range of 21 to 27 months, for his failure-to-surrender
conviction. In mitigation, Simmons noted his: (1) history of mental health issues,
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including a commitment under the Baker Act at age 17, a major depressive
disorder and a prescription for Zoloft; (2) fifteen-year history of drug addiction, as
well as mental illness, which explained in part his extensive criminal history; (3)
need to care for his wife and two young children; and (4) lack of new criminal
conduct while out of prison. Simmons also addressed the district court and
explained that he did not surrender for his federal fraud conspiracy sentence back
in 2010 because he needed more time to make sure his family was “straight” and
then turned himself in.
Simmons’ counsel acknowledged that 18 U.S.C. § 1346(b)(2) required the
district court to run his new federal sentence consecutive to his other, 21-month
federal sentence for fraud conspiracy, but asked the district court to exercise its
discretion under U.S.S.G. § 5G1.3 and run the new sentence concurrent to his
undischarged eight-year state sentence. The district court inquired into the reason
for the lengthy state sentence, and defense counsel suggested the sentence was
because of Simmons’ extensive criminal record and habitual offender status. The
district court then reviewed the undisputed factual allegations in the Presentence
Investigation Report (“PSI”) relating to the state offense.1
1
According to the PSI, Simmons rented a vehicle on September 9, 2009 and then failed to
return it to the rental agency on September 16, 2009. Despite attempts to contact Simmons, he
never returned the vehicle, which was found abandoned on October 13, 2009. The vehicle was
4
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The district court sentenced Simmons to 21 months’ imprisonment, at the
low end of the advisory range, to be served consecutive to both the eight-year state
sentence and the 21-month federal sentence (on his fraud conspiracy conviction).
The district court stated that it had “considered the statements of all parties, the
presentence report which contains the advisory guidelines and the statutory
factors.” Simmons filed this appeal.
II. DISCUSSION
We review the reasonableness of a sentence under a deferential abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597
(2007). We first consider whether the district court committed any significant
procedural error and then whether the sentence is substantively unreasonable
under the 18 U.S.C. § 3553(a) sentencing factors and the totality of the
circumstances.2 United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008).
The abuse of discretion standard “allows a range of choice for the district court, so
long as that choice does not constitute a clear error of judgment.” United States v.
Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc), cert. denied, ___ U.S. ___,
valued at approximately $20,000, and rental fees totaled $1,786.13. Simmons was arrested for
the state charge on January 22, 2010, while already incarcerated in the St. Lucie County Jail, and
then again on October 21, 2010, after he failed to appear in court on the state charge.
2
Simmons does not raise any procedural sentencing error.
5
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131 S. Ct. 1813 (2011) (internal quotation marks omitted). We ordinarily expect a
sentence within the guidelines range to be reasonable. United States v. Talley,
431 F.3d 784, 788 (11th Cir. 2005). The party challenging the sentence bears the
burden of proving the sentence is unreasonable in light of the record and the 18
U.S.C. § 3553(a) factors. Id.3
The parties agree that 18 U.S.C. § 3146(b)(2) required the district court to
run Simmons’s new 21-month sentence consecutive to his old 21-month sentence
for the underlying federal fraud conspiracy offense. See 18 U.S.C. § 3146(b)(2)
(“A term of imprisonment imposed under this section shall be consecutive to the
sentence of imprisonment for any other offense.”). Thus, the only issue on appeal
is whether the district court’s decision to impose Simmons’s 21-month federal
sentence consecutive to his eight-year state sentence rendered that 21-month
sentence substantively unreasonable.4
3
The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense,
to promote respect for the law, and to provide just punishment for the offense; (3) the need for
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9)
the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution to
victims. 18 U.S.C. § 3553(a).
4
The government contends that Simmons’s federal sentence is reasonable because
§ 3146(b)(2)’s plain language required the district court to run Simmons’s 21-month federal
sentence consecutive to his eight-year state sentence. We need not resolve this question because
Simmons’s 21-month consecutive sentence to his state sentence is reasonable whether it was
6
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“[A] federal court is authorized to impose a federal sentence consecutive to
a state sentence.” United States v. Ballard, 6 F.3d 1502, 1506 (11th Cir. 1993)
(concluding that the district court could do so even if the state court sentence had
not yet been imposed). Our review as to “the appropriateness of a consecutive
sentence,” is for an abuse of discretion. United States v. Andrews, 330 F.3d 1305,
1307 (11th Cir. 2003); see also United States v. Covington, 565 F.3d 1336, 1346
(11th Cir. 2009).
Under 18 U.S.C. § 3584, “if a term of imprisonment is imposed on a
defendant who is already subject to an undischarged term of imprisonment,” the
district court has the discretion to run the prison term “concurrently or
consecutively.” 18 U.S.C. § 3584(a). Also, “[m]ultiple terms of imprisonment
imposed at different times run consecutively unless the court orders that the terms
are to run concurrently.” Id. In deciding whether to impose a concurrent or
consecutive term, § 3584 requires the district court to “consider, as to each offense
for which a term of imprisonment is being imposed,” the § 3553(a) factors. Id.
§ 3584(b).
In addition, “Section 5G1.3 is the relevant Guidelines provision in
determining whether to impose a consecutive sentence on a defendant subject to
mandatory or discretionary.
7
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an undischarged term of imprisonment.” United States v. Bradford, 277 F.3d
1311, 1317 (11th Cir. 2002). Section 5G1.3 states:
(a) If the instant offense was committed while the defendant was serving
a term of imprisonment (including work release, furlough, or escape
status) or after sentencing for, but before commencing service of, such
term of imprisonment, the sentence for the instant offense shall be
imposed to run consecutively to the undischarged term of imprisonment.
(b) If subsection (a) does not apply, and a term of imprisonment resulted
from another offense that is relevant conduct to the instant offense of
conviction under the provisions of subsections (a)(1), (a)(2), or (a)(3) of
§ 1B1.3 (Relevant Conduct) and that was the basis for an increase in the
offense level for the instant offense under Chapter Two (Offense
Conduct) or Chapter Three (Adjustments), the sentence for the instant
offense shall be imposed as follows:
(1) the court shall adjust the sentence for any period of
imprisonment already served on the undischarged term of
imprisonment if the court determines that such period of
imprisonment will not be credited to the federal sentence by the
Bureau of Prisons; and
(2) the sentence for the instant offense shall be imposed to run
concurrently to the remainder of the undischarged term of
imprisonment.
(c) (Policy Statement) In any other case involving an undischarged term
of imprisonment, the sentence for the instant offense may be imposed to
run concurrently, partially concurrently, or consecutively to the prior
undischarged term of imprisonment to achieve a reasonable punishment
for the instant offense.
8
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U.S.S.G. § 5G1.3.5
The commentary to § 5G1.3(c) explains that the district court should try “to
achieve a reasonable incremental punishment for the instant offense and avoid
unwarranted disparity” by considering the § 3553(a) factors, the length of the
undischarged sentence, the time already served and likely to be served on the
undischarged sentence, “the fact that the prior undischarged sentence may have
been imposed in state court,” and any other circumstances relevant to determining
an appropriate sentence. U.S.S.G. § 5G1.3, cmt. n.3(A). Both 18 U.S.C. § 3584
and U.S.S.G. § 5G1.3 “evince a preference for consecutive sentences when
imprisonment terms are imposed at different times.” Ballard, 6 F.3d at 1506.
Here, Simmons has not shown that his 21-month sentence, run consecutive
to his eight-year state sentence, was unreasonable. The record reflects that the
district court considered the § 3553(a) factors and Simmons’s arguments in
mitigation, including his history of mental health issues and drug addiction, his
need to care for his young family and the fact that he committed no new offenses
since his 2010 sentencing on the federal fraud charge. See United States v. Scott,
5
Simmons committed the instant failure-to-surrender offense before he was convicted on
July 7, 2011 of the Florida (2009 failure to return a leased vehicle) offense. And, the
undischarged eight-year state prison term resulted from conduct unrelated to the instant offense.
Thus, subsection (c) of U.S.S.G. § 5G1.3 was the applicable subsection.
9
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426 F.3d 1324, 1329 (11th Cir. 2005) (explaining that district court is not required
to explicitly consider each of the factors). Although Simmons suggests his eight-
year state sentence was too severe “for a relatively minor offense,” it resulted from
his status under Florida law as a habitual felony offender. Indeed, Simmons’s
criminal history was extensive and included a history of failing to appear for court
proceedings. Further, Simmons’s conduct in the state offense was not relevant
conduct in his federal offense. Thus, the preference for consecutive sentences in
separate criminal cases militated in favor of consecutive terms. Under the factual
circumstances of this case, we cannot say the district court abused its discretion by
running Simmons’s 21-month federal sentence consecutive to his eight-year state
court sentence.
AFFIRMED.
10 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/126758/ | 537 U.S. 1150
RODORIQUEZ SEPEDAv.COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, ante, p. 1009.
No. 02-6295.
Supreme Court of United States.
January 13, 2003.
1
Petition for rehearing denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3227030/ | There was some evidence going to show that the injured workman voluntarily rendered services with the consent of the defendants, and which were accepted by them, and that they reserved the right to direct and control the workman in the performance of his work. These are the essentials of the common-law relation of master and servant, and the evidence is without dispute that the workman was paid a daily wage for his services.
This supports the conclusion and finding of the trial court, and necessitates the denial of the writ. Sloss-Sheffield Steel Iron Co. v. Crim, 219 Ala. 148, 121 So. 408; Ex parte W. T. Smith Lumber Co., 206 Ala. 485, 90 So. 807.
The substance of the defense was that Parsons, who was Kimbrough's immediate superior, was an independent contractor, and not an agent or servant of the defendants. While it may be conceded that the weight of the evidence sustained this theory, yet there was some evidence that Parsons was a superintendent of some of the construction work, and the evidence and the legitimate tendencies support the conclusion that his assumed relation as an independent contractor was a mere subterfuge; that in fact he was superintendent of the work. Code 1923, § 7585; Sloss-Sheffield Steel Iron Co. v. Crim, supra.
The amount of the award is sustained by the finding of fact, and, while there was no evidence showing that the workman had dependents, the fact of such dependents was averred in the complaint and was not denied in the answer of the Fair Park Amusement Company; its answer merely averring that "defendant denies that it had knowledge of plaintiff's dependents," and, so far as appears from the return to the writ of certiorari, the other defendant filed no answer.
Under these circumstances the trial court was justified in treating the averments of the complaint in this respect as confessed. The pertinent provision of the statute applicable here is that "within five days prior to the date fixed for the hearing of the controversy, the employer shall file a verified answer to the complaint setting up the facts which he relies on in defense thereof." Code 1923, § 7578.
The writ is therefore denied, and the petition is dismissed.
Writ denied; petition dismissed.
ANDERSON, C. J., and SAYRE and THOMAS, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4267156/ | Scheffert v. Cheney, No. S0092-11 CnC (Tomasi, J., Mar. 28, 2011)
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]
STATE OF VERMONT
SUPERIOR COURT CIVIL DIVISION
Chittenden Unit Docket No. S0092-11 CnC
)
Bridget Scheffert, )
)
Plaintiff/Appellant, )
v. )
)
Torri Demar Cheney, )
)
Defendant/Appellee. )
Plaintiff/Appellant Bridget Scheffert makes this partial appeal from a
judgment entered in her favor against Defendant/Appellee Torri Demar
Cheney in the Small Claims Court. Based on an incident where Cheney
admittedly pushed Scheffert into a pool and caused Scheffert injury, the
lower court awarded Scheffert $1,969.70 in damages and court costs. That
amount included all of the medical expenses Scheffert claimed to have
incurred in connection with the incident.
The instant appeal challenges the Small Claims Court’s decision to
award no damages for pain, suffering or inconvenience caused by the injury
that Scheffert suffered. For the reasons that follow, the Court finds in favor
of Scheffert and remands this matter to the Small Claims Court to give
further consideration to whether damages for pain, suffering, and
inconvenience related to Scheffert’s injury are appropriate in this case.
Standard of Review
An appeal from a small claims judgment is heard and decided “based
on the record made in the small claims procedure.” 12 V.S.A. § 5538. The
“appeal is limited to questions of law.” V.R.S.C.P. 10(d). If the Small Claims
Court has applied the correct law, this Court will affirm its “conclusions if
they are reasonably supported by the findings.” Maciejko v. Lunenburg Fire
Dist. No. 2, 171 Vt. 542, 543 (2000) (mem.).
Analysis
The sole issue on appeal is whether the lower court’s decision not to
award damages for pain, suffering, and inconvenience is sustainable. Based
on a review of the record, the Court concludes it is not. The Small Claims
Court declined to award such damages based on its finding that there had
been “no evidence submitted of any other pecuniary loss or any other basis on
which the court could award damages for inconvenience or pain or suffering.”
The record, however, is to the contrary.
While the testimonial evidence did not go into great detail regarding
pain and suffering, it is incorrect to say no such evidence was presented.
Scheffert testified as to her increasing pain over the three days following the
incident. She also stated that the pain caused her to wear different shoes, to
go to the emergency room, to see her primary-care doctor, to cancel a planned
trip to visit her daughter out of state, to be on crutches for a week, and to go
through roughly six weeks of physical therapy. She testified that the pain
2
did not fully subside for approximately three months. In addition, the
medical and physical therapy records submitted to the lower court as an
exhibit contain numerous examples of Scheffert’s descriptions of her pain.
The records purport to show that the pain continued for at least one and one-
half months following the accident.
Further, Scheffert testified that she endured a number of
inconveniences associated with the injury, including, among other things,
the missed trip to visit her daughter, which was to help her daughter plan
her wedding; and Scheffert’s multiple, long-distance trips to her physical
therapy appointments while trying to start a new job.
Much of this testimony and evidence was unrebutted and
uncontradicted by Cheney. Cheney did offer evidence to question Scheffert’s
pain on the night of the incident, but Scheffert had testified that the pain did
not become aggravated until the following day.
Against this record, the lower court’s finding that there was
no evidence of damages in excess of the medical and physical therapy bills
cannot be affirmed.
Indeed, in analogous contexts, the Vermont Supreme Court has
reversed as fatally inconsistent jury verdicts that awarded payments for
medical bills incurred as a result of injuries but awarded little or no damages
for pain and suffering related to the same injuries. See Smedberg v. Detlef's
Custodial Serv., Inc., 2007 VT 99, ¶9, 182 Vt. 349, 355 (where there was
3
reasonable and substantial evidence at trial that plaintiff had suffered and
would suffer pain, there was no plausible explanation for jury to award
medical expenses but nothing for past or future pain and suffering); Nourse v.
Austin, 140 Vt. 184, 185 (1981) (reversing judgment where jury gave award
adequate to cover medical expenses, but “clearly inadequate” to cover pain
and suffering); see also Brooks v. Brattleboro Mem’l Hosp., 958 F.2d 525, 530
(2d Cir. 1992) (same ).
While a decision not to award pain and suffering damages or damages
for inconvenience might very well be appropriate under certain
circumstances, the ruling of the court below simply stated there was no
evidence presented as to pain and suffering or inconvenience. As the Court
concludes that ruling to be incorrect as a matter of law, the decision in that
regard must be reversed.
Conclusion
In light of the foregoing, the ruling of the Small Claims Court that
Scheffert is not entitled to damages for pain, suffering, and inconvenience is
REVERSED. The matter is remanded to the Small Claims Court for a
hearing to consider whether such damages are appropriate in this case.
Dated at Burlington, Vermont this __ day of March, 2011.
-------------------------------
Timothy B. Tomasi
Superior Court Judge
4 | 01-03-2023 | 04-24-2018 |
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https://www.courtlistener.com/api/rest/v3/opinions/2762076/ | J. E02004/14
2014 PA Super 277
IHOR MALANCHUK, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
ILYA SIVCHUK, ETC. :
:
-------------------------------------------- :
:
IHOR MALANCHUK, :
:
Appellant :
:
v. :
: No. 1379 EDA 2012
ALEX TSIMURA, ETC. AND :
TATYANA TSIMURA, ETC. :
Appeal from the Order Entered March 26, 2012,
in the Court of Common Pleas of Philadelphia County
Civil Division at Nos. 3249 May Term 2009,
4727 April Term, 2010
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, SHOGAN, ALLEN,
OTT, WECHT, STABILE, AND JENKINS, JJ.
OPINION BY FORD ELLIOTT, P.J.E.:FILED DECEMBER 17, 2014
Ihor Malanchuk (“Malanchuk”) appeals from the March 26, 2012 order
granting summary judgment to Alex Tsimura, both individually and trading
as Impressive Windows and Alexis Impressive Windows, and to
Tatyana Tsimura, both individually and trading as Impressive Windows and
Alexis Impressive Windows and Alexis Impressive Windows, Inc.
(collectively, “Tsimura”). The appeal in this consolidated case is from an
J. E02004/14
order granting summary judgment in favor of Tsimura as to all counts pled
in one action, but only granting partial summary judgment for the defendant
in the other action, denying the motion as to Malanchuk’s negligence claim.
The trial court asserts that the instant appeal is taken improperly from an
interlocutory order, since summary judgment was not granted as to all
claims and parties. Malanchuk contends that the order is final and
appealable because despite the entry of a consolidation order, the two
actions did not involve identical parties and so retained their separate
identities. We granted en banc review to determine whether this court has
jurisdiction over an interlocutory appeal, taken without permission of the
trial court, in a consolidated case where a single plaintiff brings identical
allegations against separate defendants. For the following reasons, we find
that consolidation of the two separate actions does not affect the
interlocutory nature of the order in question, and the order is unappealable.
Therefore, we are compelled to quash the appeal.
The factual and procedural history of this case was aptly summarized
by the trial court as follows:
In 2007, Malanchuk began work as a carpenter
for [Ilya] Sivchuk’s [(“Sivchuk”)] construction
company, Four Brothers. Four Brothers paid
Malanchuk from invoices that he submitted after
each work assignment. Malanchuk worked on a
project-by-project basis. Four Brothers required
Malanchuk to provide his own tools. Sivchuk hired
Tsimura as a field manager for Four Brothers in
2007. Tsimura relayed work assignments to
Four Brothers’ contractors such as Malanchuk and
-2-
J. E02004/14
supervised their work. Four Brothers paid Tsimura a
fixed annual salary.
Sivchuk enlisted Four Brothers’ contractors to
build an addition on his private dwelling at 920 Old
Dolington Road. Several days before May 2, 2008,
Sivchuk brought an unassembled scaffolding to that
dwelling. Four Brothers’ contractors used the
scaffolding at the work site before the accident and
left it partially assembled inside the home. On
May 2, 2008, Sivchuk faxed Malanchuk’s work
assignment to Tsimura, who instructed Malanchuk to
go with him to Sivchuk’s home. Tsimura was hired
to do the physical work on this project, and was not
acting as a supervisor at that time. Sivchuk was in
control of the work done on this project.
On May 2, 2008 Tsimura instructed Malanchuk
to prepare for the work and left for several hours.
Tsimura did not instruct Malanchuk to assemble the
scaffolding. Malanchuk found the partially
assembled scaffolding and completed the scaffolding
with parts found on the premises. There were no
guardrails with the scaffolding. Tsimura returned
and instructed Malanchuk to climb the scaffolding to
install trim which would be cut by Tsimura on the
ground. When Malanchuk reached the second tier, a
board moved and Malanchuk fell to the floor. He
sustained a triad fracture in his elbow.
Trial court opinion, 5/9/12 at 3-4 (footnotes omitted).
On May 27, 2008, Malanchuk filed a claim
under his own workers’ compensation coverage
against his insurer, the State Workers’ Insurance
Fund (the “SWIF”).[Footnote 1] On May 13, 2009,
the SWIF added defendant [] Sivchuk [] as a
defendant in the workers’ compensation action. On
June 2, 2010, the parties reached a $30,000
settlement in the workers’ compensation
proceedings. Although Sivchuk contributed to the
settlement, the settlement agreement contained a
specific denial of any employer-employee
relationship between Sivchuk and Malanchuk.
-3-
J. E02004/14
[Footnote 1] Malanchuk was required to
maintain workers’ compensation in his
own name as a condition of his
employment with Four Brothers
Construction Company.
On May 21, 2009, while the workers’
compensation claim was pending, Malanchuk filed a
complaint in this Court against Sivchuk. The
complaint contained counts in negligence and
products liability. On April 30, 2010, Malanchuk filed
a separate action in which he asserted counts in
negligence and products liability against defendant []
Tsimura []. [Footnote 2] The actions were
consolidated by order dated June 6, 2011.
[Footnote 2] In his answer to Tsimura’s
Motion for Summary Judgment,
Malanchuk has withdrawn all products
liability claims.
On December 5, 2011 the Defendants moved
for summary judgment. Sivchuk claimed immunity
because he was Malanchuk’s statutory employer
pursuant to the Pennsylvania Workers’ Compensation
Act (the “Act”). Sivchuk further asserted that
summary judgment should have been granted as to
the products liability claim because he was not in the
business of supplying scaffolding. Tsimura claimed
that he did not supply the scaffolding and that there
was no proof of negligence on his part.
On March 22, 2012 the Court denied summary
judgment as to the negligence claims against
Defendant Sivchuk because he did not qualify as a
statutory employer. The Court granted summary
judgment against Sivchuk as to all product liability
claims because Sivchuk was not engaged in the
business of selling or supplying a product. The Court
granted Tsimura’s summary judgment motion as to
all claims. [Malanchuk] moved for reconsideration of
grant of summary judgment for Tsimura on April 5,
2012. [Malanchuk] claimed that summary judgment
-4-
J. E02004/14
was not proper because Tsimura was the controlling
contractor. On May 1, 2012, the court denied this
motion.
Trial court opinion, 5/9/12 at 1-2.
Before we may reach the merits, we must first address Tsimura’s
argument that this appeal is not properly before us because “the question of
appealability implicates the jurisdiction of our court.” Jacksonian v.
Temple University Health System Foundation, 862 A.2d 1275, 1279
(Pa.Super. 2004), quoting In re Estate of Israel, 645 A.2d 1333, 1336
(Pa.Super. 1994). “Generally, only appeals from final orders are eligible for
appellate review.” Id. (citation omitted).
“Few legal principles are as well settled as that an appeal properly lies
only from a final order unless otherwise permitted by rule or statute.”
G.B. v. M.M.B., 670 A.2d 714, 717 (Pa.Super. 1996) (en banc) (citations
omitted). Whether an appellant has filed a timely appeal from a final order
implicates the jurisdiction of this court. Flowers v. Flowers, 612 A.2d
1064, 1065 (Pa.Super. 1992) (citations omitted). Pennsylvania Rule of
Appellate Procedure 341 defines a final order as, inter alia, any order that
disposes of all claims and all parties. Pa.R.A.P., Rule 341(b)(1),
42 Pa.C.S.A.
Rule 341 provides, in pertinent part:
(a) General rule. Except as prescribed in
subdivisions (d), and (e) of this rule, an appeal
may be taken as of right from any final order
of an administrative agency or lower court.
-5-
J. E02004/14
(b) Definition of final order. A final order is any
order that:
(1) disposes of all claims and of all
parties; or
(2) is expressly defined as a final order
by statute; or
(3) is entered as a final order pursuant
to subdivision (c) of this rule.
(c) Determination of finality. When more than
one claim for relief is presented in an action,
whether as a claim, counterclaim, cross-claim,
or third-party claim or when multiple parties
are involved, the trial court or other
governmental unit may enter a final order as
to one or more but fewer than all of the claims
and parties only upon an express
determination that an immediate appeal would
facilitate resolution of the entire case. Such an
order becomes appealable when entered. In
the absence of such a determination and entry
of a final order, any order or other form of
decision that adjudicates fewer than all the
claims and parties shall not constitute a final
order.
Pa.R.A.P. 341(a), (b) & (c).
The following is a partial list of orders previously
interpreted by the courts as appealable as final
orders under Rule 341 that are no longer appealable
as of right unless the trial court or administrative
agency makes an express determination that an
immediate appeal would facilitate resolution of the
entire case and expressly enters a final order
pursuant to Rule 341(c):
(1) an order dismissing one of several
causes of action pleaded in a complaint
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but leaving pending other causes of
action;
(2) an order dismissing a complaint but
leaving pending a counterclaim;
(3) an order dismissing a counterclaim but
leaving pending the complaint which
initiated the action;
(4) an order dismissing an action as to less
than all plaintiffs or as to less than all
defendants but leaving pending the
action as to other plaintiffs and other
defendants; and
(5) an order granting judgment against one
defendant but leaving pending the
complaint against other defendants; and
(6) an order dismissing a complaint to join
an additional defendant or denying a
petition to join an additional defendant or
denying a petition for late joinder of an
additional defendant.
Pa.R.A.P. 341, Note.
As a general rule, an order dismissing some but not
all counts of a multi-count complaint is interlocutory
and not appealable. In adhering to this policy, the
courts have sought to avoid piecemeal litigation.
This court has held that an appeal will not lie from an
order granting partial summary judgment.
Bolmgren v. State Farm, 758 A.2d 689, 690-691 (Pa.Super. 2000)
(citations omitted). See also Estate of Considine v. Wachovia Bank,
966 A.2d 1148, 1153 (Pa.Super. 2009) (order granting summary judgment
to one of multiple defendants not subject to interlocutory appeal as of right).
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Here, the order appealed from is interlocutory as it did not dispose of
all claims and all parties. The negligence claim against Sivchuk remains
outstanding. Nor did Malanchuk file a petition seeking permission to appeal
pursuant to Pa.R.A.P. 312. Accordingly, we do not have jurisdiction to hear
this appeal.
As stated above, these actions were consolidated for trial. On
Sivchuk’s motion filed pursuant to Pa.R.C.P. 213(a),1 the court ordered
consolidation of the two lawsuits “for the purpose of discovery, arbitration
and if [the arbitration is] appealed, trial” under docket number 3249 May
Term 2009. (Order, 6/6/11 at 1.) Malanchuk argues that because the two
actions involved different defendants, each action retained its separate
character and required the entry of a separate judgment. See Roznowski
v. Pennsylvania National Mutual Casualty Insurance Co., 493 A.2d
775, 777-778 (Pa.Super. 1985) (“When separate actions are consolidated
for trial, each action retains its separate character. Each has its separate
docket entries, and each produces its own verdict and judgment.”), citing
Azinger v. Pennsylvania Railroad Co., 105 A. 87 (Pa. 1918). Malanchuk
1
In actions pending in a county which involve a
common question of law or fact or which arise from
the same transaction or occurrence, the court on its
own motion or on the motion of any party may order
a joint hearing or trial of any matter in issue in the
actions, may order the actions consolidated, and
may make orders that avoid unnecessary cost or
delay.
-8-
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maintains that this was not a “complete consolidation” whereby several
actions are combined into one and lose their separate identities, becoming a
single action in which a single judgment is rendered. Therefore, according
to Malanchuk, the summary judgment order had the effect of terminating
the lawsuit against Tsimura and rendering the March 26, 2012 order a final,
appealable order.
Malanchuk relies on Kincy v. Petro, 2 A.3d 490 (Pa. 2010), which we
find to be inapposite. In that case, Alice Kincy (“Kincy”) was driving her
vehicle in which her brother, Jerome Nixon (“Nixon”), was a passenger,
when it was struck by a vehicle driven by Anastasia Petro (“Anastasia”). Id.
at 491. The vehicle Anastasia was driving was owned by her mother,
Nancy Petro (“Petro”). Id. Kincy filed suit against Petro, alleging that Petro
was negligent in operating her vehicle, resulting in injuries to Kincy. Id.
Thereafter, Nixon and his wife filed a separate action naming both Anastasia
and Petro as defendants, alleging that Anastasia was negligent in her
operation of the vehicle, and that Petro negligently entrusted the vehicle to
her daughter. Id. Petro filed an answer and new matter to Kincy’s
complaint, admitting that she owned the vehicle that struck Kincy’s car, but
asserting that her daughter, Anastasia, was the driver at the time of the
accident. Id. Despite the fact it was undisputed that Anastasia, not Petro,
was driving the vehicle at the time of the accident, Kincy never sought leave
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to amend her complaint to include a claim against Anastasia, or to amend
the basis of her cause of action against Petro. Id.
Subsequently, the cases were consolidated “for all purposes” including
discovery, trial and appeal. Id. The Nixons settled their claims against
Anastasia and Petro, and their action was discontinued. Id. at 492. Prior to
trial, the trial court granted Anastasia and Petro’s motion in limine seeking
to preclude Kincy from presenting any evidence other than evidence in
support of her claim against Petro for negligent operation of the vehicle. Id.
The trial court rejected Kincy’s argument that as a result of the consolidation
order, her complaint merged with the Nixons’ complaint, and therefore she
had asserted a negligence claim against Anastasia. Id. The trial court
reasoned that pursuant to Azinger, separate actions can be merged into a
single action only if they involve, inter alia, the same parties. Id.
Subsequently, as it was undisputed that Petro was not the driver of the
vehicle that struck Kincy, the trial court granted nonsuit in favor of Anastasia
and Petro. Id.
Kincy appealed, and this court affirmed on the trial court opinion. Id.
On further appeal, our supreme court also affirmed, holding that the
pleadings filed in the separate cases did not automatically merge:
The court’s action was not such a consolidation of
the two proceedings as to merge the two actions into
one, but merely an order directing they be tried
together in view of the fact that the cases were of
the same nature, arose out of the same transaction,
and depended in each case upon substantially the
- 10 -
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same proofs, and was made in the interest of justice
and for the purpose of avoiding unnecessary delay
and expense.
Id. at 493.
The Kincy court found that while a trial court may order the actions
“consolidated” under Rule 213(a), this is distinct from the “complete
consolidation” implicated in Azinger, which predated the enactment of
Rule 213. Id. at 493-494. Complete consolidation cannot occur unless the
actions involve the same parties, subject matter, issues, and defenses:
Thus, where a party or trial court seeks complete
consolidation of two separate actions, we reaffirm
our holding in Azinger that such consolidation
cannot be achieved unless the actions involve the
same parties, subject matter, issues, and defenses.
As the Kincy and Nixon actions did not involve
identical parties, under Azinger, the actions could
not have been consolidated such that the actions lost
their separate identities and the pleadings merged.
Id. at 495.2
Malanchuk’s reliance on Kincy for the proposition that because the
actions were consolidated under Rule 213, the claims against each defendant
retained their separate identities, thereby rendering summary judgment for
Tsimura a final order, expands Kincy’s application far beyond its holding and
abrogates the definition of a final order. Key to understanding Kincy is that
by the time the cases were consolidated, the statute of limitations had
2
The Kincy court acknowledged that since the enactment of the compulsory
joinder rule, Pa.R.C.P. 1020(d), there would be few, if any, circumstances
where complete consolidation as contemplated by Azinger would apply.
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expired. The accident occurred on September 13, 2003. Id. at 491. Kincy
filed suit on August 3, 2005, and the cases were consolidated on March 7,
2006. Id. If the Kincy court had accepted her argument regarding merger,
it would have defeated the statute of limitations by effectively allowing her
to amend her complaint to include an entirely new cause of action.3 Such a
result would have created a loophole in the statute of limitations. See id. at
495 (“a conclusion that Rule 213(a) contemplates complete consolidation
between actions involving non-identical parties, subject matter, issues and
defenses, is simply untenable. In ascertaining the intention of the Supreme
Court in the promulgation of a rule, it is presumed that we did not intend a
result that is absurd, impossible of execution, or unreasonable.”). See also
id. at 498 (Saylor, J., concurring) (“A looser approach permitting automatic,
retroactive consolidation of counts to encompass unstated cross-claims is
untenable, since the potential for disorder, confusion, and surprise is simply
too great.”).
Had Malanchuk filed a single complaint naming both Sivchuk and
Tsimura as defendants, or sought to amend his original complaint to name a
new party, all allegations against all defendants would have been contained
in a single complaint under a single court term and number and there would
be no question that the order granting partial summary judgment was
3
Obviously, had the statute of limitations not expired, Kincy could have
amended her complaint and the issue would be moot.
- 12 -
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interlocutory and non-appealable. There is no reason to treat the March 26,
2012 order any differently simply because the claims against each defendant
were initially filed separately and then consolidated for trial pursuant to
Rule 213(a). It is unreasonable to find the otherwise interlocutory order is
final and appealable based solely on the manner in which the claims were
originally presented.
Rule 341 specifically provides that any order which adjudicates fewer
than all claims and parties is not a final order. Pa.R.A.P. 341(c). Malanchuk
could have petitioned the court for permission to appeal under
Pa.R.A.P. 312. The rule permits a trial court to specifically designate an
order of partial summary judgment as final, thereby allowing for immediate
appeal. Therefore, the rules already provide for the possibility of immediate
appellate review. Malanchuk chose not to pursue this course, and the trial
court did not determine its order granting partial summary judgment
necessitated immediate appellate review.
Kincy is distinguishable on its facts and never addressed the issue of
what constitutes an appealable order. Kincy involved the merger of
complaints filed by separate plaintiffs, after the statute of limitations had
expired. The matter sub judice involves a single plaintiff bringing identical
allegations against joint defendants. Consolidation of the claims against
Sivchuk and Tsimura does not affect the interlocutory nature of the order in
question, thus Kincy is inapplicable. For these reasons, we are compelled to
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quash the instant appeal as interlocutory, and we are without jurisdiction to
address Malanchuk’s substantive claims.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/17/2014
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https://www.courtlistener.com/api/rest/v3/opinions/3444527/ | Affirming.
The appellant in the winter of 1922-1923 was an employee of the appellee in its coal mines at Echols, Kentucky. As he frankly admits in his testimony, he and certain other members of the miners' union, of which he was a member, were very much dissatisfied with their mine superintendent, W.E. Hicks, and during this time they were doing everything in their power through their union to have him removed as such superintendent. About this time there was also some disorder about the mines. One of the mine employees was shot at by an unknown person; another employee received through the mail a threatening letter signed K. K. K.; still another employee had to draw a revolver in order to protect himself in an altercation; and, further, the coal tipple of the mine mysteriously burned.
There had been several meetings of the labor union at which appellant and other members, among whom were the seven men in addition to appellant mentioned in appellee's letter to be presently noted, had been quite active in formulating charges, complaints and resolutions directed against Hicks and at which appellant and others had been appointed on committees to visit appellee and present the complaints of the union, which duty these men later performed. After investigation, appellee declined to remove Hicks. Later there had been a public hearing before the duly constituted authorities of the district organization of the miners' union at which the charges preferred by the local labor union through the instigation of appellant and others against Hicks had been aired and which hearing resulted in the exoneration of Hicks. Appellant and his colleagues were not satisfied with the result of this hearing or the action of appellee in refusing to discharge Hicks, and they continued their agitation for his removal. In this setting, the appellee on February 23, 1923, posted in front of the general *Page 68
store at Echols, Kentucky, two copies of the following letter:
"Echols, Ky., Feb. 23, 1923.
"To ALL EMPLOYES:
"The managment has been forced to the conclusion that the following men are not working with the company in a spirit of harmony and that they have done and will continue to do everything in their power to drive Mr. Hicks and one or two others from Echols.
"The management further believes that the large majority of the men at Echols are satisfied with conditions as they are and that the dissatisfaction is confined to these men only.
"The company has endeavored to give steady employment to the men at Echols and in order to do that it necessarily can not carry a large number of extra men but must depend on the steadiness and loyalty of these it does employ. It considers attempts to disrupt the organization as disloyalty.
"The management is entirely satisfied with Mr. Hicks, and does not intend to have him hampered by any group, actively unfriendly to him.
"The offer made by Mr. McDonald in his letter to your committee is therefore renewed in a modified from and for any of the following men, or for men who are dissatisfied and who will seek work elsewhere, the company will pay the cost of moving to any point not closer than Central City, not further than 100 miles from Echols. This offer will be open until March the 20th, 1923, at which time the management will take such steps as may be necessary to restore peace and harmony to the organization at Echols.
"The list referred to which follows is of course subject to correction:
J. Baker Dortch Estil Fulkerson Charlie Myers Harry Woodburn James Griffith Dick Thornsberry James Decker Daulphin Hunter
"In view of recent occurrences the management further begs to call attention to the fact that any banding together or assembling for the purpose of *Page 69
intimidation is illegal, as also are threats of personal or physical violence, and all illegal acts will be dealt with by summary discharge of the offenders and by institution of such criminal proceedings as are provided by law.
"KENTUCKY COKE COMPANY, By A.W. Lee, Manager Mining Department"
The appellant and the other seven men mentioned in this letter each brought a suit against the appellee alleging that the above letter was libelous and actionable per se, in that it charged them with the felony of confederating and banding together for the purpose of intimidating and driving Hicks out of the community. The demurrer of the appellee to the petition being overruled, it answered in three paragraphs, the first being a traverse of some immaterial matters in the petition; the second being a plea of the truth; and the third pleading a lot of extraneous matters which had very little to do with the subject matter of the action. On the trial, the, court, after overruling appellee's motion for a peremptory instruction, instructed the jury to find for the appellant unless it believed from the evidence that the statements made in the letter were true. The jury found a verdict for the appellee, and from the judgment entered on that verdict this appeal is prosecuted.
Numerous grounds are relied on for reversal, none of which we need discuss, as we think the court should have sustained the demurrer of the appellee to appellant's petition, since the letter which was published was not libelous or actionableper se. A publication which is claimed to be libelous must be read in its ordinary meaning as commonly understood. York v. Mims, 179 Ky. 525, 200 S.W. 918; Plummer v. Commercial Pub. Co., 208 Ky. 210, 270 S.W. 793; 25 Cyc. 355. In McGowan v. Manifee, 7 T. B. Mon. 314, we said:
"Words are to be taken, neither in the milder nor in the more grevious sense, but in that sense in which they would be understood by those who heard them; the judge ought not to torture them into a charge of guilt, nor explain them into innocence, contrary to their obvious import."
It is also well settled that an innuendo cannot extend the meaning of words beyond their natural import; *Page 70
it can only serve to explain some matter already expressed. Spears v. McCoy, 155 Ky. 1, 159 S.W. 610. Plummer v. Commercial Tribune Pub. Co., supra.
Testing the letter herein complained of in the light of these principles, we find that it is divided into two clearly defined divisions. The first division charges the eight men therein named with the failure to work in harmony with the company's organization and with the effort to drive their mine superintendent from the mines. There is no charge in this division of an illegal banding together on the part of these men or of the commission of any illegal act. At the worst, this part of the letter simply charges these men with being agitators who, by their agitation, were breaking up the morale of the company's organization and were forcing Hicks to abandon his position as mine superintendent. But such a charge is not actionable per se. In Chicago R.I. P. R. Co. v. Medley,155 P. 211 (Okla.), L.R.A. 1916D, 587, the question was whether or not the following service card issued to a discharged employee by the railroad was actionable per se:
"To Whom it May Concern: This is to certify that Mr. N.H. Medley has been employed at Enid, Oklahoma, on the Chicago, Rock Island Pacific Railway, as car repairer, from July 25, 1909, to January 17, 1910, when he was discharged for being an agitator and creating trouble in the ranks of our men at Enid. Services unsatisfactory on this account. C.M. Taylor, (L.) Supt. Motive Power."
In holding that the above publication was not actionableper se, the Oklahoma court said:
"We have had many agitators in the history of this country — not only labor agitators, but others. In fact most of the modern legislation, both for the protection of laboring man and the improvement and betterment of society, has been due largely to agitators. The potential force of labor unions and labor organizations is due to a great extent to labor agitators. We think it would be going too far to hold that the language used in this letter is libelous per se.
"We have searched in vain for precedents, and the nearest one we find is that of the case of Wabash Ry. Co. v. Young, 162 Ind. 102, 69 N.E. 1003, 4 L.R.A. (N. S. 1091), wherein it was held: *Page 71
" 'It is not libelous per se to accuse one of being a member of a labor union and a labor agitator.' "
In the case of Tennessee Coal, Iron R. R. Co. v. Kelly,163 Ala. 348, 50 So. 1008, the court held that it was not a libelper se to charge the plaintiff with having made trouble at the defendant's mines or with having run negroes out of their homes, such conduct not necessarily being a crime.
In the case before us, these men had a right, if they wished, to be dissatisfied with their working conditions and their superintendent, and to agitate for a change. It was no felony or crime to do this, and the management did not charge them with any criminal act in stating that this was what they were doing. Hence it is clear that the first division of the letter in question is not actionable per se.
The last division of its letter in which the appellee calls attention to the fact that banding together for the purpose of intimidation is illegal, cannot by any stretch of imagination be said to charge any of the named eight men with having so done. There is a clear break in the letter at this point. It plainly reads that the management further begs to call attention to certain matters, thus indicating that appellee had closed with that part of the letter dealing with the eight men named and was now taking up another matter to which it wished to call the attention of its employees. By no fair implication can it be said that this part of the letter refers to the eight men earlier mentioned.
Therefore the case of McClintock v. McClure, 171 Ky. 714,188 S.W. 867, relied on by appellant and where the rule is laid down that a charge though not made directly but obliquely and by inference is none the less a charge, is not applicable, for there is no charge by inference or even obliquely here that the eight men whose names are set out in the letter had banded illegally together or so proposed to do.
Taken as a whole, then, the letter of which appellant complains is not actionable per se, and the trial court should have sustained appellee's demurrer to appellant's petition. Although the lower court did not do this, yet the jury found a verdict for the appellee which arrives at the same result as would have been arrived at had the court taken the action we have stated as proper.
The judgment is therefore affirmed. *Page 72 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4006386/ | I respectfully dissent from the ruling of the majority of the court in this case.
If this were a case where it could be said that the negligence of the defendant in operating its street car, or the contributory negligence of the plaintiff, prior to the time when the car passed him, was the proximate cause of the injury, then I would say that the verdict of the jury, on conflicting evidence, should control. But in my view of the case, the accident in which the plaintiff was injured did not result from any negligence with which the defendant can be charged, but was occasioned by events over which it had no control, and which the utmost care could not have prevented. As I read the evidence, the injured boy passed the front of the street car of the defendant, and to a point where defendant's motorman could not observe his actions. Any negligence of the defendant in operating the street car while the plaintiff *Page 577
was approaching the same, or any contributory negligence of plaintiff in relation thereto, passed from the picture. Certainly, when the plaintiff passed the front of the street car, the motorman, had he been cognizant of the plaintiff's presence, would have had the right to assume that all risks of danger had passed. Then it was that the bicycle which the plaintiff was riding in some way collided with the street car, and he was thrown and injured. I think the evidence overwhelmingly sustains this theory, and I am therefore unable to see how, on the case presented, the defendant can be held to responsibility. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3816154/ | This is an original proceeding in this court brought by Joe Carper, hereinafter referred to as petitioner, to obtain a review of an order which was made by trial commissioner and on appeal affirmed by the State Industrial Commission and which denied, for jurisdictional reasons, a claim to compensation against J.H. Brandon, hereinafter referred to as respondent.
On December 8, 1941, petitioner filed with the State Industrial Commission his claim for compensation for a disability which he alleged had resulted from an accidental personal injury sustained on October 17, 1941, while petitioner was engaged in the repair of a building which belonged to the respondent. The respondent challenged the jurisdiction of the State Industrial Commission for the reason that the alleged injury had not been sustained in a compensable employment. The trial commissioner conducted hearings to determine liability and extent of disability. The evidence adduced at said hearings disclosed that respondent was the owner and operator of a one-man garage and repair shop wherein power-driven machinery is used but had no employees in said business; that the building in which respondent carried on his business was not entirely satisfactory and that respondent purchased another building for the purpose of moving his business therein; that it was necessary to make some alterations and repairs in the building so purchased and that respondent employed one J.H. Jacobs to make such alterations and repairs; that it became necessary for Jacobs to have some one assist him for several days in his work and respondent instructed Jacobs to obtain the services of a certain individual but that Jacobs was unable to obtain the services of such person and thereupon employed petitioner to assist him with the understanding, however, that respondent would pay petitioner for his services. While so employed petitioner fell upon a studding and injured himself and that petitioner was seeking compensation for disability alleged to have been sustained as a result of said injury. The evidence further disclosed that respondent was not engaged in the business of repair and alteration of buildings and was not engaged in the repair and alteration of the building here involved for pecuniary gain. The trial commissioner from the evidence so adduced made the following finding of fact:
"That on October 17, 1941, the respondent herein was not engaged in a hazardous business covered by the terms of the Workmen's Compensation Law, and therefore, the Industrial Commission is without jurisdiction in this cause."
On the basis of the foregoing finding of fact the trial commissioner entered an order which denied compensation. On appeal, the State Industrial Commission, sitting en banc, adopted the finding of fact so made and the order of the trial commissioner thereon. *Page 193
The petitioner contends that the trial commissioner and the State Industrial Commission erred as a matter of law in holding that petitioner was not injured in a compensable employment. Petitioner urges that since the business of the respondent was one which would be hazardous if employees were engaged therein, that this made the employment of petitioner in work incident to said business hazardous and brought it within the terms of the Workmen's Compensation Act. The fallacy in petitioner's argument lies in the assumption that a business which could be under certain circumstances within the provisions of the act must be held to be such where it is necessary to give the State Industrial Commission jurisdiction to award compensation. Such is not the rule. The business of the respondent, that of a garage and repair shop, was one which had no employees. The Workmen's Compensation Act (85 Ohio St. 1941 § 11[85-11]) expressly provides as follows:
"That the provisions of this act shall not apply to any employer if he shall employ less than two workmen."
The business of respondent was therefore not one of those covered by the Workmen's Compensation Act. The uncontroverted evidence before the Commission discloses that respondent was not engaged in the repair and alteration of buildings for pecuniary gain and was not so engaged in the repair and alteration of the particular building here involved and in which petitioner was alleged to have sustained his injury. As said in Meyer Meyer v. Davis, 162 Okla. 16, 18 P.2d 869:
"Where an employer is engaged in a nonhazardous business, and employs some one to perform labor for him of a hazardous nature as an incident to such nonhazardous business, but not in the conduct of same for pecuniary gain, such employee, if injured, does not come within the provisions of the Workmen's Compensation Act, for subsection 5 of section 13350, O.S. 1931, provides: ' "Employment" includes employment only in a trade, business or occupation carried on by the employer for pecuniary gain.' "
The rule announced in the foregoing case is now the settled law of this jurisdiction. See Harris v. Wallace, 172 Okla. 349,45 P.2d 89; Oklahoma City Federal Savings Loan Ass'n v. State Industrial Commission, 176 Okla. 43, 54 P.2d 333; Standard Savings Loan Ass'n v. Whitney, 184 Okla. 190,86 P.2d 298; Haas v. Ferguson, 184 Okla. 279, 86 P.2d 986; Blakeley v. Hanby, 187 Okla. 251, 102 P.2d 581. The cases of Anthony Motor Co. v. Ferguson, 188 Okla. 485, 110 P.2d 1111; Wilson
Co. v. Musgrave, 180 Okla. 246, 68 P.2d 846; Switzer Advertising Co. v. White, 188 Okla. 567, 111 P.2d 815; Mason Lumber Co. v. Andruss, 188 Okla. 365, 110 P.2d 605; Burrows v. State Industrial Commission, 188 Okla. 523, 111 P.2d 175, and Diamond Ice Co. v. Seitz, 188 Okla. 54, 105 P.2d 784, cited by petitioner, involved situations where employees of hazardous employments covered by the act were involved and are wholly inapplicable to the case at bar as an examination thereof will readily reveal.
The uncontradicted evidence discloses that respondent was engaged in an employment which, under some circumstances, might be covered by the act, but herein the work performed was so disconnected with the carrying on of the hazardous business of conducting a garage as not to be incidental to the garage business. His work was not carried on for pecuniary gain within the meaning of the act.
It follows that the order made was properly entered.
Order sustained.
HURST, C.J., and RILEY, OSBORN, BAYLESS, WELCH, CORN, and DAVISON, JJ., concur. ARNOLD, J., dissents. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2791740/ | COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Beales and Decker
UNPUBLISHED
Argued by teleconference
TRAVIOUS MARQUE BAILEY
MEMORANDUM OPINION* BY
v. Record No. 0932-14-1 JUDGE ROBERT J. HUMPHREYS
APRIL 7, 2015
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
Robert W. Curran, Judge
Anthony J. Balady, Jr., for appellant.
Aaron J. Campbell, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Travious Marque Bailey (“Bailey”) appeals the final judgment entered by the Circuit
Court for the City of Suffolk (the “trial court”) for his conviction of grand larceny of a heating
and air conditioning unit (“the unit”) in violation of Code § 18.2-95. For the following reasons,
we affirm the judgment of the trial court.
In support of his appeal, Bailey offers the following three assignments of error:
1. The trial court erred when it denied Defendant’s motion to
strike the evidence of grand larceny, as the evidence showed
that the heating and air conditioning unit was entrusted and
delivered to the Defendant in the course of his employment and
that no trespassory taking occurred.
2. The trial court erred when it found Defendant guilty of grand
larceny, as Defendant presented a reasonable hypothesis of
innocence that was not excluded by the evidence.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
3. The trial court erred in finding the evidence sufficient to
support a larceny conviction, as the Commonwealth’s evidence
supported a theory of embezzlement instead of larceny, and
neither the Court nor the Commonwealth stated their reliance
on an embezzlement theory of the case.
On appeal, “[w]hat the elements of the offense are is a question of law that we review de
novo.” Lawlor v. Commonwealth, 285 Va. 187, 223-24, 738 S.E.2d 847, 868 (2013). “Whether
the evidence adduced is sufficient to prove each of those elements is a factual finding, which will
not be set aside on appeal unless it is plainly wrong.” Id. In reviewing that factual finding, we
consider the evidence in the light most favorable to the Commonwealth and give it the benefit of
all reasonable inferences fairly deducible therefrom. Commonwealth v. McNeal, 282 Va. 16, 20,
710 S.E.2d 733, 735 (2011) (citations omitted). We do not “substitute our judgment for that of
the trier of fact.” Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002).
“Instead, the relevant question is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).
A. Trespassory Taking
Bailey’s first assignment of error claims that because Bailey received the unit in the
scope of his employment, no trespassory taking occurred. We disagree. Under Code § 18.2-95,
“grand larceny includes the taking, not from the person of another, of goods that have a value of
$200 or more.” Commonwealth v. Taylor, 256 Va. 514, 518, 506 S.E.2d 312, 314 (1998). A
conviction of larceny requires proof beyond a reasonable doubt of the defendant’s intent to steal,
which must accompany his taking of the property. Bryant v. Commonwealth, 248 Va. 179, 183,
445 S.E.2d 667, 670 (1994) (citations omitted).
The Virginia Supreme Court has held that the “owner of personal property may deliver it
to another upon conditions, or in circumstances, which give the recipient bare custody of the
-2-
property. Constructive possession remains in the owner.” Pritchard v. Commonwealth, 225 Va.
559, 562, 303 S.E.2d 911, 913 (1983). The Court provided several examples including, “a watch
handed to a friend to time a race, the owner expecting its return at the end of the race” or
“clothing handed to a customer in a clothing store, to try on for size, the owner expecting it to be
returned if rejected, paid for if accepted.” Id. The Court held that “if the property is carried
away before the condition is performed, with the intent to steal it from the owner, the act
becomes larceny.” Id. Alternatively, when the true owner “gives consent to a temporary
possession or a possession for a limited purpose, the expiration of that qualification creates a
constructive revestment of possession in the true owner with ‘bare charge or custody’ in the
other person. A violation of the owner’s possessory right constitutes a trespassory taking.”
Overstreet v. Commonwealth, 17 Va. App. 234, 236, 435 S.E.2d 906, 908 (1993) (quoting 50
Am. Jur. 2d Larceny § 23 (1970)).
The record, viewed in the light most favorable to the Commonwealth, demonstrates that
Bailey exercised control over the unit against the true owner’s, Rohit Ahluwalia (“Ahluwalia”),
possessory right. First, Bailey offered several different explanations as to what happened to the
unit. Bailey first told Ahluwalia that his friend “Mike” had the unit and was getting a needed
part and that the unit would be installed in a couple of days. Bailey later told Ahluwalia and
Robert Bowles (“Bowles”), one of Ahluwalia’s maintenance employees, that the police had
confiscated the unit and arrested his friend “Mike” because the unit had been previously stolen.
On two occasions, Bailey, purporting to be “Sergeant Boyd” of the Suffolk Police Department (a
fictitious character) answered Bowles’s phone call and later told Bowles that he was trying to get
Ahluwalia back for something and hung up. Despite talking to Detective Loury of the Suffolk
Police Department, who was investigating the whereabouts of the unit, Bailey never contacted
Detective Loury or made any effort to return the unit.
-3-
There is ample evidence in the record to support a finding that Bailey’s actions violated
Ahluwalia’s possessory right to the unit, and thus constituted a trespassory taking under both
theories explained in Pritchard and Overstreet. First, consistent with the analysis of Pritchard,
Bowles, in his capacity as a maintenance employee of Ahluwalia, relinquished custody of the
unit to Bailey based solely on Bailey’s representation that he would install the unit at
Ahluwalia’s rental property in Suffolk on June 2, 2013. As a result, Ahluwalia never
relinquished constructive possession of the unit and Bailey, at most, had bare custody of the unit.
Alternatively, pursuant to the reasoning of Overstreet, the evidence clearly demonstrates
that the unit was delivered to Bailey for the limited purpose of installing the unit at Ahluwalia’s
rental property. Bailey exceeded the limited purpose for which he possessed the unit when he
transferred custody to his friend “Mike” and failed to install the unit on June 2, 2013, thus
creating a constructive revestment of possession of the unit to its true owner, Ahluwalia.
Consequently, the trial court did not err in concluding there was sufficient evidence to support
Bailey’s larceny conviction.
B. Hypothesis of Innocence
Bailey’s second assignment of error alleges that the evidence was insufficient to support
his conviction because he “presented a reasonable hypothesis of innocence that was not excluded
by the evidence.” Specifically, Bailey claims that he transferred the unit to “Mike” for
installation, who falsely told Bailey that the unit had been confiscated by the Suffolk Police
Department. Bailey argues that this hypothesis of innocence was not excluded or impeached by
any evidence offered by the Commonwealth at trial.
It is well established that “the reasonable-hypothesis principle is not a discrete rule unto
itself.” Haskins v. Commonwealth, 44 Va. App. 1, 8-9, 602 S.E.2d 402, 405-06 (2004). “The
statement that circumstantial evidence must exclude every reasonable theory of innocence is
-4-
simply another way of stating that the Commonwealth has the burden of proof beyond a
reasonable doubt.” Commonwealth v. Hudson, 265 Va. 505, 513, 578 S.E.2d 781, 785 (2003).
Thus, the principle “does not add to the burden of proof placed upon the Commonwealth in a
criminal case.” Id. It merely “reiterates the standard applicable to every criminal case.” Pease
v. Commonwealth, 39 Va. App. 342, 360, 573 S.E.2d 272, 280 (2002) (en banc) (citation
omitted). Further, whether the hypothesis of innocence is reasonable is itself a “question of
fact.” Emerson v. Commonwealth, 43 Va. App. 263, 277, 597 S.E.2d 242, 249 (2004) (citation
omitted). “Merely because defendant’s theory of the case differs from that taken by the
Commonwealth does not mean that every reasonable hypothesis consistent with his innocence
has not been excluded. What weight should be given evidence is a matter for the [fact-finder] to
decide.” Miles v. Commonwealth, 205 Va. 462, 467, 138 S.E.2d 22, 27 (1964). The fact-finder
is not required to believe all aspects of the testimony of a witness. Moyer v. Commonwealth, 33
Va. App. 8, 28, 531 S.E.2d 580, 590 (2000) (en banc). “[A] fact-finder, having rejected a
defendant’s attempted explanation as untrue, may draw the reasonable inference that his
explanation was made falsely in an effort to conceal his guilt.” Covil v. Commonwealth, 268
Va. 692, 696, 604 S.E.2d 79, 82 (2004) (citations omitted).
The trial court, as fact-finder, determined Bailey’s testimony was not credible. The trial
court explained, “The trouble with the defendant in this case is there’s [sic] too many different
stories given to too many different people. It causes serious question about his credibility.” In
addition to offering several different explanations as to what happened to the unit, Bailey
pretended to be “Sergeant Boyd” and later told Bowles that he was trying to get Ahluwalia back
for something. Bailey was also unable to provide any details about “Mike” even though he
claimed that he was able to retrieve the unit from him at some point. Further, despite talking to
-5-
Detective Loury of the Suffolk Police Department about the unit’s whereabouts, Bailey admitted
that he did not contact Detective Loury or attempt to return the unit.
There is ample evidence in the record for a reasonable fact-finder to conclude that
Bailey’s testimony was not credible. Accordingly, the trial court did not err in rejecting Bailey’s
hypothesis of innocence.
C. Proof of Embezzlement Sufficient to Sustain the Larceny Conviction
In his third assignment of error, Bailey argues that even if he converted the unit to his
own use without the permission of Ahluwalia, such conversion is at most embezzlement, not
larceny. Bailey concedes that under current law, proof of embezzlement is sufficient to sustain a
larceny. He also acknowledges that his appeal as it relates to this assignment of error was not
properly preserved pursuant to Rule 5A:18. However, he asks this Court to apply the ends of
justice exception of Rule 5A:18 to consider this issue.
While Rule 5A:18 normally requires an objection to be raised in the trial court below to
preserve an issue for appellate review, the Rule does permit this Court to “overlook the
appellant’s failure to preserve the issue and consider the merits of his argument for the first time
on appeal if the ends of justice so demand.” Brittle v. Commonwealth, 54 Va. App. 505, 512-13,
680 S.E.2d 335, 339 (2009). However, “the ends of justice exception is narrow and is to be used
sparingly.” Redman v. Commonwealth, 25 Va. App. 215, 220, 487 S.E.2d 269, 272 (1997).
This high standard is essential to buttress the principle that “a litigant has the responsibility to
afford a court the opportunity to consider and correct a perceived error before such error is
brought to the appellate court for review.” Williams v. Gloucester Sheriff’s Dep’t, 266 Va. 409,
411, 587 S.E.2d 546, 548 (2004) (citations omitted).
In order to avail oneself of the exception, a defendant must affirmatively show that a
miscarriage of justice has occurred, not that a miscarriage might have occurred. Mounce v.
-6-
Commonwealth, 4 Va. App. 433, 436, 357 S.E.2d 742, 744 (1987). The trial error must be
“clear, substantial and material.” Brown v. Commonwealth, 8 Va. App. 126, 132, 380 S.E.2d 8,
11 (1989). Further,
an appellant must demonstrate more than that the Commonwealth
failed to prove an element of the offense . . . [, i]n order to show
that a miscarriage of justice has occurred . . . the appellant must
demonstrate that he or she was convicted for conduct that was not
a criminal offense or the record must affirmatively prove that an
element of the offense did not occur.
Redman, 25 Va. App. at 221, 487 S.E.2d at 272.
Even if we accept Bailey’s argument that he had possession, as opposed to custody of the
unit and is therefore at most guilty of embezzlement, the evidence is still sufficient to support a
larceny conviction pursuant to the embezzlement statute. Code § 18.2-111 provides, “[p]roof of
embezzlement shall be sufficient to sustain the charge of larceny. Any person convicted
hereunder shall be deemed guilty of larceny and may be indicted as for larceny.” Because Bailey
concedes that the evidence demonstrates that he is guilty of embezzlement by converting the unit
to his own use, Bailey is guilty of a crime that would sustain a conviction under his indictment
for larceny. Thus, applying the ends of justice exception to this issue would be inappropriate.
Concluding that there was sufficient evidence in the record to establish each element of
grand larceny, we affirm the judgment of the trial court.
Affirmed.
-7- | 01-03-2023 | 04-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3062989/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-14482 ELEVENTH CIRCUIT
APRIL 5, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 06-00292-CV-4-RH-EMT
KURT LEWIS,
Petitioner-Appellant,
versus
WALTER A. MCNEIL,
Secretary Department of Corrections,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(April 5, 2010)
Before TJOFLAT, CARNES and WILSON, Circuit Judges.
PER CURIAM:
Kurt Lewis, a Florida prisoner serving a 10-year sentence for violations of
the terms of his community control, appeals pro se the district court’s denial of his
28 U.S.C. § 2254 habeas corpus petition. Lewis contends that he received
ineffective assistance of counsel because counsel failed to inform him that he could
be sentenced consecutively if he refused the government’s plea offer of a 5-year
concurrent sentence.
The state habeas court held two evidentiary hearings and heard testimony
from Lewis, his former counsel, and the prosecutor. The court denied relief after
finding that Lewis’ counsel properly advised him of the terms of the government’s
plea offer and the consequences of rejecting it. The district court upheld the state
habeas court’s ruling but granted a certificate of appealability on the following
issue:
[W]hether Mr. Lewis is entitled to relief on the ground
his attorney rendered ineffective assistance by failing to
advise him correctly that the state had offered a plea
agreement under which he would receive concurrent
sentences in the two cases now at issue—not consecutive
sentences as could be (and ultimately were) imposed in
the absence of the plea agreement.
Lewis contends that the district court erred by denying his § 2254 petition.
He argues that the record shows that his counsel affirmatively misadvised him on
the possibility of consecutive sentencing, which constitutes deficient performance
2
under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 1052 (1984). Lewis
asserts that he also meets Strickland’s prejudice requirement because he would
have accepted the plea but for his counsel’s deficient advice, and as a result he is
serving a sentence of ten years imprisonment instead of five.
When examining a district court’s denial of a § 2254 habeas petition, we
review de novo an ineffective assistance of counsel claim, which is a mixed
question of law and fact. Rhode v. Hall, 582 F.3d 1273, 1279 (11th Cir. 2009).
Under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death
Penalty Act of 1996, a federal court may not grant habeas relief on claims that
were previously adjudicated in state court, unless the adjudication
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision based on an unreasonable
determination of the facts in light of the evidence
presented in the State court proceeding.
28 U.S.C. § 2254(d).
“The factual findings of the state court, including the credibility findings, are
presumed to be correct unless [the petitioner] rebuts the presumption by clear and
convincing evidence.” Rolling v. Crosby, 438 F.3d 1296, 1301 (11th Cir. 2006)
(citing 28 U.S.C. § 2254(e)(1)). In the present case, conflicting testimony was
3
presented at the evidentiary hearing held by the state habeas court. In fact, this
case comes down to a swearing match. Lewis testified that he rejected the
government’s plea deal because his lawyer, Dennis Boothe, advised him to do so
on the grounds that the government offered nothing more than the maximum
sentence. He points to these comments that Boothe made to the court at the
community control revocation hearing: “A five year maximum sentence. [The
prosecutor’s] offer is five years. So we have nothing to lose to come and waste the
court’s time, because we’re being offered nothing but the maximum sentence under
the law.”1 Lewis relies on Boothe’s statement as proof that Boothe misadvised him
about the possibility that the sentence would be imposed consecutively. At the
community control revocation hearing, the prosecutor told the court:
I offered him five years on all his cases. That’s not the maximum this
Court can impose. The Court can impose consecutive sentences on
these violations of probation cases, and I would ask this Court to
sentence him to the maximum on each case; five years in case #2001-
865, with a consecutive five years on #2001-1117-AF.
Lewis asserts the record establishes that Boothe never informed him about the
possibility of consecutive sentences.
1
The September 5, 2002 hearing on Lewis’ alleged violations of community control was
designated as a “VOP” hearing in the transcript. This opinion will refer to that hearing as the
community control revocation hearing.
4
At the hearing before the state habeas court, Boothe explained that his
statement at the community control revocation hearing was accurate because after
Lewis rejected the government’s plea offer, the offer was withdrawn and Lewis
was facing consecutive sentencing. Boothe testified that he was aware that Lewis
faced consecutive sentencing; he advised Lewis of that fact; and he strenuously
argued with Lewis in an attempt to get him to accept the plea agreement, but Lewis
refused. Boothe explained that Lewis wanted a hearing because he believed that
the allegations against him could not be proven. The prosecutor testified that
before the community control revocation hearing, she offered Lewis a deal to serve
five years concurrently on all three of his cases. She also informed Boothe that if
Lewis rejected the offer and went forward with the hearing, the offer would be
revoked, and she would seek consecutive sentences of five years in each case.
The state habeas court credited Boothe’s testimony. Although the parts of
the record Lewis relies on might raise some doubts about his counsel’s
understanding of the state’s plea offer, Lewis has not presented clear and
convincing evidence establishing that the state court’s credibility finding was
incorrect. See Rolling, 438 F.3d at 1301. As a result he has failed to establish that
he is entitled to habeas relief under § 2254.
AFFIRMED.
5 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3062990/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 5, 2010
No. 09-13219 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 09-00021-CV-HLM-4
KENNETH SCOTT,
Petitioner-Appellant,
versus
WARDEN TERRY DUFFY,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(April 5, 2010)
Before BLACK, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Kenneth Scott, a Georgia state prisoner proceeding pro se, appeals the
dismissal of his 28 U.S.C. § 2254 petition as time-barred. In his § 2254 petition,
Scott challenged the revocation of his state probation, which became final in April
2006 when his counsel, against Scott’s directive, did not file an appeal on his
behalf. The district court dismissed the § 2254 petition as untimely because it was
filed in January 2009, well over the one-year limitations period for federal habeas
corpus petitions under the AEDPA. We granted Scott a Certificate of Appealibility
on whether the district court erred by finding his writ untimely.
On appeal, Scott argues that his lawyer’s failure to appeal his state probation
revocation was a State impediment pursuant to 28 U.S.C. § 2244(d)(1)(B) that
should have delayed the start of the limitations period. Scott also argues that this
same failure entitles him to equitable tolling of the limitations period and
constitutes cause and prejudice sufficient to overcome AEDPA’s procedural bar.
Scott’s second argument on appeal is that our Circuit should recognize an “actual
innocence” exception to AEDPA’s statute of limitations period and that because
there was no evidence that the victim of his aggravated assault experienced
apprehension or fear, he is actually innocent of the offense which triggered the
revocation of his probation. Therefore, Scott claims that his § 2254 petition should
be considered timely.
2
“We review de novo a district court’s dismissal of a federal habeas petition,
including the determination that a petition is time-barred under § 2244(d).”
Melson v. Allen, 548 F.3d 993, 996–97 (11th Cir. 2008), cert. denied, 130 S. Ct.
254 (2009). By statute, there is a one-year period of limitation for a person in state
custody to file a federal petition seeking a writ of habeas corpus. 28 U.S.C.
§ 2244(d)(1). The period runs from the latest of several potential start dates,
including when the state court judgment became final after the expiration of the
time for seeking direct review. Id. at § 2244(d)(1)(A). Under Georgia law, a
defendant has 30 days to file an appeal challenging the revocation of probation.
O.C.G.A § 5-6-35(a)(5), (d). No appeal was filed in Scott’s case. Therefore, the
judgment of the superior court became “final” on April 13, 2006, and Scott had one
year within which to file his federal habeas corpus petition or toll the limitations
period by filing a state collateral attack. He did not file his federal petition or a
state habeas petition prior to the expiration of the one-year period of limitation.
Scott’s first argument—that his attorney’s failure to appeal his probation
revocation is a State impediment cognizable under § 2244(d)(1)(B)—is without
merit. The AEDPA’s one-year limitation period may be tolled by the existence of
an impediment that was created by State action in violation of the Constitution or
laws of the United States if “the applicant was prevented from filing by such State
3
action.” 28 U.S.C. § 2244(d)(1)(B). However, we have held that the incompetence
of a habeas petitioner’s attorney is not the type of State impediment envisioned in
§ 2244(d)(1)(B). Lawrence v. Florida, 421 F.3d 1221, 1226 (11th Cir. 2005)
(rejecting petitioner’s argument that the State impeded his timely filing of his §
2254 petition by providing him an incompetent attorney through the Florida
counsel registry system).
Nor can Scott show that there are extraordinary circumstances present in his
case to warrant the application of equitable tolling. “Equitable tolling is an
extraordinary remedy which is typically applied sparingly.” Steed v. Head, 219
F.3d 1298, 1300 (11th Cir. 2000). It is only available “when a movant untimely
files because of extraordinary circumstances that are both beyond his control and
unavoidable even with diligence.” Sandvik v. United States, 177 F.3d 1269, 1271
(11th Cir. 1999). “Mere attorney negligence does not justify equitable tolling.”
Steed, 219 F.3d at 1300. For a petitioner to be entitled to equitable tolling, there
must be “egregious attorney misconduct,” such as “proof of bad faith, dishonesty,
divided loyalty, mental impairment or so forth on the lawyer’s part.” Melson v.
Allen, 548 F.3d 993, 1001 (11th Cir. 2008) (quotation omitted). Scott’s allegations
that his attorney failed to file an appeal of his probation revocation, and to inform
him of this fact, does not constitute egregious attorney misconduct warranting
4
equitable tolling. Far from constituting bad faith or dishonesty, Scott’s decision
not to appeal the probation revocation was a purely tactical one, especially in light
of Scott’s admission of guilt as to the probation revocation offense.1
Finally, Scott’s actual innocence argument fails as well. “Neither the
Supreme Court nor this Court has ever held that the Constitution requires an actual
innocence exception to the AEDPA’s one-year limitations period.” Melson, 548
F.3d at 1002. However, assuming that such an exception exists, a “petitioner must
first make a sufficient showing of actual innocence.” Id. “This requires the
petitioner to produce new reliable evidence—whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical evidence—that was
not presented at trial.” Id. (quotation omitted). Scott has made no such showing as
to the aggravated assault underlying his probation revocation. Instead of offering
new evidence, he cited to the victim’s and a law enforcement officer’s testimony
from his revocation hearing. Moreover, at the hearing, Scott admitted to
1
We decline to address Scott’s argument that his attorney’s failure to file an appeal
constituted cause and prejudice sufficient to overcome the AEDPA’s one-year statute of
limitations because this argument is misplaced. Scott’s 28 U.S.C. § 2254 petition was not
dismissed due to procedural default so a showing of cause and prejudice is not relevant or
necessary. Procedural default occurs when a state prisoner seeking federal habeas relief is
barred from raising a federal constitutional claim in federal court because he failed to first
properly raise the issue in state court. Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir.
2003). Scott’s petition was dismissed due to untimely filing; no court ever reviewed the merits
of his petition or determined that he attempted to raise a procedurally defaulted constitutional
claim. Therefore, he need not show “cause” for the default and actual “prejudice” resulting from
the default. See id.
5
committing the aggravated assault offense and violating his probation.
In sum, the district court did not err by dismissing Scott’s § 2254 petition as
time-barred because the alleged incompetence of his state-appointed lawyer did not
qualify as a “State impediment” that delayed the start of the limitations period or
justify equitable tolling. Assuming that there is an actual innocence exception to
the time period for seeking habeas relief, Scott also failed to present new evidence
showing his actual innocence.
AFFIRMED.
6 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3062991/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-12845 ELEVENTH CIRCUIT
APRIL 5, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
Agency No. A098-548-747
HUMBERTO ALVAREZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(April 5, 2010)
Before CARNES, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Humberto Alvarez, a native of Colombia and a citizen of Venezuela, through
counsel, seeks review of the Board of Immigration Appeals’ (“BIA”) decision,
affirming the Immigration Judge’s (“IJ”) order denying his application for asylum,
withholding of removal under the Immigration and Nationality Act (“INA”), and
relief under the United Nations Convention Against Torture and Other Cruel,
Inhuman and Degrading Treatment or Punishment (“CAT”). INA §§ 208, 241, 8
U.S.C. §§ 1158, 1231; 8 C.F.R. § 208.16(c). In his petition for asylum, Alvarez
claimed that he was persecuted in Venezuela by the Bolivarian Circles and other
authorities that support the government of Hugo Chavez. Alvarez testified before
the IJ that members of the Bolivarian Circles threatened him, beat him, and/or
ransacked his home on multiple occasions in 2002 and 2003 due to his
participation in various protest marches organized by the Action workers of
Venezuela. The IJ and the BIA both concluded that Alvarez failed to present a
credible claim of asylum.
On appeal, Alvarez argues that the IJ and BIA failed to provide sufficient
reasons for their adverse credibility determinations because the identified
inconsistencies in his testimony were either insignificant or were not actually
inconsistent. Alvarez argues that the record compels reversal. We disagree.
In order to establish eligibility for asylum, an applicant must provide
“credible, direct, and specific evidence in the record” showing that he is a
“refugee.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005)
2
(quotation omitted). See also 8 U.S.C. § 1158(b)(1). An alien qualifies as a
refugee if he can establish he has suffered past persecution or has a “well-founded
fear of persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion.” INA § 101(a)(42)(A); 8 U.S.C. §
1101(a)(42)(A).
If an alien’s testimony that he fears persecution is credible, it may be
sufficient without corroboration to satisfy his burden of proof required to establish
asylum eligibility. Kueviakoe v. U.S. Att’y Gen., 567 F.3d 1301, 1304 (11th Cir.
2009). Likewise, a denial of asylum relief can be supported solely by an adverse
credibility determination, which may be made on the basis of internal
inconsistencies in an applicant’s testimony. Mohammed v. U.S. Att’y Gen., 547
F.3d 1340, 1348 (11th Cir. 2008) (citing 8 U.S.C. § 1158(b)(1)(B)(iii)). If the
court explicitly determines that the alien lacks credibility, it must offer “specific,
cogent reasons” for the finding. Kueviakoe, 567 F.3d at 1305. The burden then
shifts to the alien to show why the credibility determination was not supported by
“specific, cogent reasons” or was not based on substantial evidence. Id.
Factual determinations, including credibility determinations, are reviewed
under a substantial evidence standard, which provides that the decision “can be
reversed only if evidence ‘compels’ a reasonable fact finder to find otherwise.”
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1230 (11th Cir. 2005) (per curiam).
3
Therefore, we must affirm the BIA’s decision if it is supported by “reasonable,
substantial, and probative evidence on the record considered as a whole.” Al
Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). We review the record
evidence “in the light most favorable to the agency’s decision and draw all
reasonable inferences in favor of that decision.” Adefemi v. Ashcroft, 386 F.3d
1022, 1027 (11th Cir. 2004) (en banc).
Where, as here, the BIA issues its own opinion, we review only the decision
of the BIA, except to the extent the BIA expressly adopts the IJ’s decision and
reasoning. Al Najjar, 257 F.3d at 1284. Therefore, because the BIA expressly
adopted the conclusions and reasoning with respect to three inconsistencies in
Alvarez’s testimony, we look to both the BIA’s and the IJ’s opinions with respect
to those perceived inconsistencies.
The BIA found that Alvarez failed to present a credible claim for asylum
because his testimony was insufficiently detailed, contained internal and external
inconsistencies, and lacked sufficient corroboration. The BIA endorsed three of
the IJ’s identified inconsistencies in making its adverse credibility determination.
First, the BIA recognized an internal inconsistency in Alvarez’s testimony before
the IJ. Alvarez testified that on June 15, 2002, his home was invaded by members
of the Bolivarian Circles and National Guard; he was beaten unconscious and
awakened in a pool of blood; and he “remained in [his] apartment for two days in
4
fear” before seeking medical attention. The BIA found that Alvarez contradicted
this statement when he also testified that the day after the alleged beating, he left
his apartment to report the incident at the police station. Second, while Alvarez
testified that he changed his residence in Caracas only once to avoid further
persecution, his wife testified that she and Alvarez were constantly moving from
place to place during the period after the June 2002 beating. Third, Alvarez
testified that when he returned to Venezuela for a short visit after first entering the
United States due to persecution, nothing personally happened to him aside from
threats because he would not leave his apartment for fear of future beatings. His
wife, on the other hand, testified that he was “found” by the Bolivarian Circles
three days after his return, and his persecutors monitored his apartment throughout
his stay, which prompted his second entry to the United States.
Although we agree with Alvarez that the IJ and BIA overstated the
inconsistency between his and his wife’s testimony regarding the events following
his return to Venezuela,1 the other two inconsistencies constitute “specific, cogent
reasons” for the BIA’s adverse credibility determination and are material to his
1
The BIA endorsed the IJ’s finding that Alvarez’s testimony that he had no
problems with the Bolivarian Circles upon his return, which he qualified as being due to his
decision to remain in hiding in his apartment, was inconsistent with his wife’s testimony that his
persecutors monitored the foyer of his apartment building. However, Alvarez also testified that
there were threats made against him by members of the Bolivarian Circles. The IJ and BIA
appear to have ignored this testimony, which lessens the perceived inconsistency between
Alvarez’s and his wife’s testimony.
5
asylum claim.2 First, the fact that Alvarez testified that he only moved once within
Caracas to avoid persecution is in direct conflict with his wife’s testimony that they
moved constantly during the relevant time period. This inconsistency is material to
Alvarez’s claim in that it suggests a lack of credibility as to what steps he took to
avoid further harm or harassment, which is relevant to whether Alvarez has an
objective fear of future harm in Venezuela. Second, the internal inconsistency in
Alvarez’s testimony that he was too afraid and too weak due to blood loss to leave
his apartment for two days after the June 15, 2002 beating but at the same time left
his apartment to file a police report is also material to his asylum claim because it
bears directly on the truth and seriousness of the events that Alvarez claims
constituted past persecution. In light of these two inconsistencies, as well as the
lack of corroborating evidence of Alvarez’s persecution, in the form of police
reports or medical records, we cannot conclude that the evidence “compels”
reversal. See Sepulveda, 401 F.3d at 1230.
In sum, substantial evidence supports the BIA’s adverse credibility
2
The REAL ID Act, which governs all asylum applications filed after May 11,
2005, now provides that an adverse credibility determination may be based on any inconsistency,
regardless of whether the inconsistency is material, i.e., whether or not it goes to the heart of the
asylum claim. See REAL ID Act § 101(a)(3)(B)(iii), Pub. L. No. 109-13, 119 Stat. 231 (2005),
codified at 8 U.S.C. § 1158(b)(1)(B)(iii). Alvarez’s asylum application was filed in 2004 and is
therefore not governed by the REAL ID Act. Our circuit has not determined whether credibility
determinations, in cases not governed by the REAL ID Act, must be supported by
inconsistencies that go to the heart of the claim.
6
determination and resulting denial of Alvarez’s application for asylum.3 Therefore,
we deny his petition for review.4
PETITION DENIED.
3
We decline to reach Alvarez’s additional argument that the IJ committed
reversible error by finding that he could relocate to Colombia. The BIA expressly stated that it
was not considering the challenge to the IJ’s grant of the motion to pretermit Alvarez’s asylum
application based on a safe third country for removal. Instead, it chose to affirm the denial of
asylum on burden of proof grounds.
4
Because Alvarez failed to establish eligibility for asylum, we also deny his
applications for withholding of removal and CAT relief. “To qualify for withholding of removal
or CAT relief, an alien must establish standards more stringent that those for asylum eligibility;
thus, an alien unable to prove a well-founded fear of persecution based on a protected ground, as
required for asylum relief, necessarily fails to demonstrate a clear probability of persecution, the
standard applicable to a claim for withholding of removal.” Rodriguez Morales v. U.S. Att’y
Gen., 488 F.3d 884, 891 (11th Cir. 2007) (internal citation omitted).
7 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3239210/ | Petition of the state of Alabama for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in Kyser v. State, 117 So. 157.
Writ denied.
ANDERSON, C. J., and SAYRE, GARDNER, and BOULDIN, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1473730/ | 173 F.2d 170 (1949)
GRACE BROS., Inc.
v.
COMMISSIONER OF INTERNAL REVENUE.
No. 11976.
United States Court of Appeals Ninth Circuit.
February 18, 1949.
*171 *172 George H. Koster and Bayley Kohlmeier, both of San Francisco, Cal., for a petitioner.
Theron Lamar Caudle, Asst. Atty. Gen. and Ellis N. Slack and S. Walter Shine, Sp. Assts. to Atty. Gen., for respondent.
Before MATHEWS and HEALY, Circuit Judges, and YANKWICH, District Judge.
YANKWICH, District Judge.
I
The Nature of the Controversy
Petitioner is a California corporation which for many years was engaged in various enterprises, including farming, grape growing and the manufacture and sale of wines and beers. All its stock is owned by its president and manager, Joseph T. Grace. Between 1921 and 1943, it operated at Santa Rosa, Sonoma County, California, a winery known as the "DeTurk Winery". It sold, under the "DeTurk" label, wines and brandies from grapes grown by it or bought from others. Its wines were considered by the trade as of high quality. In 1942, it sold 114,046 gallons of dry wine in bulk and 7,028 gallons in bottles, at 22.2 cents per gallon, and 46,009 gallons of sweet wine in bulk and 10,268 gallons in bottles, at 36.8 cents a gallon. During the years 1936-1942, the investment in this portion of its business was $150,000, of which $60,000 represented the plant and $90,000 the inventory. The substantial inventory in stock is accounted for by the fact that wines must be held for aging. Late in 1942, Petitioner decided to discontinue its wine business. It, therefore, limited its production for that year to 4,959 gallons from its own grapes, as against a normal production of 200,000 gallons. Notwithstanding this, its entire inventory for that year was 522,761 gallons. In November, 1943, talks began with L. A. Weller, Vice-President of Garrett and Company, Inc., of New York. At no time did Weller show an interest in acquiring the physical properties of the DeTurk Winery by purchase. From the very beginning of the exchange of written communications, in a telegram dated December 28, 1942, the request of Garrett and Company was to submit details if "interested in selling your inventory and leasing winery." The Petitioner, on December 29, offered specified quantities of several types of wine at various prices per gallon and a lease "of winery, distillery, and bonded warehouse" for five years at an annual rental of $12,000. Agreement was finally confirmed by telegram of Garrett and Company, dated December 31, 1942. The price agreed on for all the wine was fifty cents per gallon, twenty per cent of the purchase price to be paid immediately. The lease for the winery was to be for five years, at an annual rental of ten thousand dollars. On the same day, 104,000 gallons were delivered, for which Garrett and Company paid $52,000, the profit from which the Petitioner reported in its 1942 income tax return. The balance of the *173 wine, 418,761 gallons in all, was delivered in 1943. Petitioner received $124,317.50 for the dry wine and $94,862.41 for the sweet wine. A higher price than fifty cents per gallon was paid for the sweet wine, because 73,628 gallons had a higher sugar content than the California standard. Garrett and Company also agreed to purchase 600 wine barrels at $4.00 each. In view of the discussion to follow, it is interesting to note that although performance of the contract was begun on December 31, 1942, when $52,000 was paid, a formal memorandum of agreement, embodying the terms of the sale was not executed until January 20, 1943, and the lease not until January 30, 1943. This fact has singular significance, in view of the claim of unitary transfer made in this case. Following the execution of the formal lease, the Petitioner surrendered its permit to manufacture and sell wine, in order that Garrett and Company might procure a permit to operate a winery on the premises. The wine stocks, cooperage, labels, list of customers, and the small staff of eight or ten employees were taken over by the purchaser-lessee. Rent was paid under the lease until the end of April, 1944, when the lease was terminated by mutual agreement. On April 15, 1944, Petitioner sold the winery to Taylor & Co. for $150,000.
The profit realized by the petitioner on the transaction was $140,138.58. The petitioner treated the transaction as a sale of the business, and the profits taxable as capital gain. The Commissioner treated the profits as ordinary income and assessed a deficiency of income and excess profit taxes for 1943. The petitioner sought a redetermination of the deficiency by the Tax Court. That Court, on April 5, 1948, found that the proceeds of the transaction constituted income and that no part of it was chargeable to transfer of good will. It assessed a deficiency in excess profits taxes of $124,073.01 for the year 1943.
This is a petition to review the order. In the main, the issue is:
Did the sale of the inventory on hand, the lease of the premises, and the transfer of the enumerated accessories constitute, in whole or in part, a capital transaction?
II
Scope of Review
Consideration of the questions involved turns upon the scope of our review of the decision of the Tax Court.
By recent statutory enactment, Internal Revenue Code, Section 1141(a), as amended by Section 36, Public Law 773, 80th Congress, Second Session, 26 U.S. C.A. § 1141(a), it is decreed that this Court's jurisdiction to review shall be "in the same manner and to the same extent as decisions of the district courts in civil actions tried without a jury". This reads into the Internal Revenue Code the provision of the Federal Rules of Civil Procedure that:
"Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." Rule 52(a), Federal Rules of Civil Procedure, 28 U.S.C.A.
In the application of this rule and of the equity rule, which prior to the adoption of the Federal Rules of Civil Procedure governed review of equity cases only and which the rules made of universal application in all civil cases, United States v. United States Gypsum Company, 1948, 333 U.S. 364, 394, 68 S. Ct. 525, reviewing courts have emphasized the importance of the conclusions of the trial judge which derive from his opportunity to pass upon the credibility of the witnesses. And they have declined to resolve a conflict in the testimony of witnesses their own way. Davis v. Schwartz, 1895, 155 U.S. 631, 636, 15 S. Ct. 237, 39 L. Ed. 289; Adamson v. Gilliland, 1917, 242 U.S. 350, 353, 37 S. Ct. 169, 61 L. Ed. 356; Wittmayer v. United States, 9 Cir., 1941, 118 F.2d 808, 810; Gates v. General Casualty Company of America, 9 Cir., 1941, 120 F.2d 925, 927; Augustine v. Bowles, 9 Cir., 1945, 149 F.2d 93, 96; and see "Findings in the Light of the Recent Amendments to the Federal Rules of Civil Procedure", 8 F.R.D. 271, 288-291, and cases cited in footnotes 6-9. The Supreme Court, in a very recent case, United States v. United States Gypsum Company, 1948, 333 U.S. 364, 68 S. Ct. 525, *174 has stated the scope of this provision in this manner:
"It was intended, in all actions tried upon the facts without a jury, to make applicable the then prevailing equity practice. Since judicial review of findings of trial courts does not have the statutory or constitutional limitations [on judicial review] of findings by administrative agencies or by a jury, this Court may reverse findings of fact by a trial court where `clearly erroneous.' The practice in equity prior to the present Rules of Civil Procedure was that the findings of the trial court, when dependent upon oral testimony where the candor and credibility of the witnesses would best be judged, had great weight with the appellate court. The findings were never conclusive, however. A finding is `clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Company, 1948, 333 U.S. 364, 394, 68 S. Ct. 525, 541.
This interpretation is not a new departure. It merely stresses, as courts of appeal (including this court), have done before, that findings are to be given the effect which they formerly had in equity. Equity Rule 70½. See, Equitable Life Assurance Society v. Irelan, 9 Cir., 1941, 123 F.2d 462, 464, and cases cited in footnotes 1 and 2; and see, Guilford Construction Co. v. Biggs, 4 Cir., 1939, 102 F.2d 46; United States v. Still, 4 Cir., 1941, 120 F.2d 876, 878; Katz Underwear Co. v. United States, 3 Cir., 1942, 127 F.2d 965, 966.
It is axiomatic that uncontradicted testimony must be followed. Chesapeake and Ohio Railway Company v. Martin, 1931, 283 U.S. 209, 216, 217, 51 S. Ct. 453, 75 L. Ed. 983; San Francisco Association for Blind v. Industrial Aid for the Blind, 8 Cir., 1946, 152 F.2d 532, 536; Foran v. Commissioner, 5 Cir., 1948, 165 F.2d 705. The only exception to the rule occurs when we are dealing with testimony by witnesses who stand impeached and whose testimony is contradicted by the testimony of others or by physical or other facts actually proved or with testimony which is inherently improbable. The classic statement of this rule, is that by Mr. Justice Field in Quock Ting v. United States, 1891, 140 U.S. 417, 420-422, 11 S. Ct. 733, 851, 35 L. Ed. 501. And see Greenfeld v. Commissioner, 4 Cir., 1947, 165 F.2d 318, 319, 320. This Court has applied the same principles repeatedly, in reviewing administrative findings. Illustrative are the immigration cases, in which conclusions of a board on exclusion based upon contradictions in the testimony of a single witness were upheld. Wong Ying Wing v. Proctor, 9 Cir., 1935, 77 F.2d 135; Ng Heu Yim v. Bonham, 9 Cir., 1935, 79 F.2d 655; Lum Sha You v. United States, 9 Cir., 1936, 82 F.2d 83. In giving effect to these norms in a particular case, the burden is upon him who attacks a finding to show that it is clearly wrong. In re American Mail Line, 9 Cir., 1940, 115 F.2d 196, 199; Wittmayer v. United States, 9 Cir., 1941, 118 F.2d 808, 810; Augustine v. Bowles, 9 Cir., 1945, 149 F.2d 93, 96.
III
The Petitioner Did Not Part With Any Good Will.
(A)
Capital Assets.
The Tax Court declined to find, as urged by petitioner, that its good will passed to Garrett & Company, Inc. In reaching this conclusion, the Tax Court gave effect to the statutory provision which, in defining "capital assets", excludes "stock in trade of the taxpayer or other property of a kind which would properly be included in the inventory of the taxpayer if on hand at the close of the taxable year, or property held by the taxpayer primarily for sale to customers in the ordinary course of its trade or business, or property, used in the trade or business, of a character which is subject to the allowance for depreciation provided in section 23 (l)." 26 U.S.C.A. § 117(a) (1).
The applicable Treasury Regulation provided:
"Gain or loss from a sale of good will results only when the business, or a part of it, to which the good will attaches is sold." Treasury Regulation 111, Section 29.22(a)10. And see Section 29.117-1.
*175 The petitioner seems to think that on the facts in the case and on the application of the doctrine declared in such cases as Pfleghar Hardware Specialty Co. v. Blair, 2 Cir., 1929, 30 F.2d 614, and White & Wells Co. v. Commissioner, 2 Cir., 1931, 50 F.2d 120, it was entitled to a favorable finding upon the issue presented. We cannot agree. To the contrary, we are of the view that the facts in this case do not bring it within the doctrine declared in those cases. There, the Courts found that the clear intention was to transfer the operating properties for the manufacture of hardware accessories for carriages and automobiles in one case and paper boxes in the other, as going concerns.
The rationale of the ruling is given in the following language of Swan, Circuit Judge, in Pfleghar Hardware Specialty Co. v. Blair, supra:
"Good will has no existence except in connection with a going business; it cannot be separated from the going business to which it is incident. A seller who disposes of his manufacturing plant as a going concern necessarily parts with all those advantages which are inherent in conducting an established business at that plant; in other words, parts with his good will." Pfleghar Hardware Specialty Co. v. Blair, 2 Cir., 1929, 30 F.2d 614, 616.
More, in White & Wells Co. v. Commissioner, supra, it was not questioned that there had been a sale of the paperbox factory as a going concern. The sole matter in dispute was "the amount of profit realized". And the Court of Appeals, in reversing the Board of Tax Appeals, merely determined that it had adopted an erroneous method of computing the amount of the tax.
Petitioner here complains that the Tax Court in this case based its refusal to apply the rulings of the two cases just cited to the facts in this case upon the single ground that there had not been a sale of the plant in the present case. We do not so read the findings and opinion of the Tax Court. On the contrary, a study of them, in their entirety, discloses the fact that the Tax Court was convinced that there had been no intention to transfer and no actual transfer of good will.
The fact that the Tax Court, in arriving at a correct determination of the facts, may have assigned a wrong legal reason is immaterial. The validity of the finding is to be judged by the facts and inferences from them which give support to it in the record. And here, the Tax Court was right in concluding that, unlike what occurred in the cases on which the petitioner relies, there was no intention to transfer the good will of the wine business of the petitioner, and that, in fact, he parted with nothing more than the inventoried wine, cooperage, labels.
(B)
The Elements of Good Will.
Before elaborating further on the matter, we advert to the fact that in the written documents which relate to the transaction, both before and after its consummation, no mention whatsoever is made of the good will. We leave aside, for the moment, the indisputable proposition that oral testimony contradicting written instruments can have no binding effect, in cases of this character. Cf. Woodall v. Commissioner, 9 Cir., 1939, 105 F.2d 474, 478; Jurs v. Commissioner, 9 Cir., 1945, 147 F.2d 805, 810; Gaylord v. Commissioner, 9 Cir., 1946, 153 F.2d 408, 415. And see Helvering v. Coleman-Gilbert Associates, 1935, 296 U.S. 369, 374, 56 S. Ct. 285, 80 L. Ed. 278; Titus v. United States, 10 Cir., 1945, 150 F.2d 508, 511, 162 A.L.R. 991.
We shall analyze further on in the discussion the oral testimony and the effect of the rule just referred to upon the action of the Court in not giving to this testimony the full value which the petitioner claims for it. We come to certain considerations which, to our mind, lead to the inevitable conclusion that the Tax Court was justified in holding that no good will passed in the transaction.
What is good will?
It is the sum total of those imponderable qualities which attract the custom of a business, what brings patronage to the *176 business. Mr. Justice Cardozo, in a famous case, has called it "a reasonable expectancy of preference * * * (which) may come from succession in place or name or otherwise to a business that has won the favor of its customers." Matter of Brown's Will, 1926, 242 N.Y. 1, 6, 150 N.E. 581, 582, 44 A.L.R. 510.
The Supreme Court has held it to mean "every positive advantage that has been acquired by the old firm in the progress of its business, whether connected with the premises in which the business was previously carried on, or with the name of the late firm, or with any other matter carrying with it the benefit of the business." Menendez v. Holt, 1888, 128 U.S. 514, 522, 9 S. Ct. 143, 144, 32 L. Ed. 526.
So, the good will may attach to (1) the business as an entity, (2) the physical plant in which it is conducted, (3) the trade-name under which it is carried on and the right to conduct it at the particular place or within a particular area, under a trade-name or trademark; (4) the special knowledge or the "knowhow" of its staff; (5) the number and quality of its customers. 5 Paul and Mertens, Law of Federal Income Taxation, 1934, Section 52.34, n. 96; Paul, Federal Estate and Gift Taxation, 1942, Sections 18.04, 18.16. In this case, there was no transfer of anything which would correspond to items (1), (2), and (3). To specify: The plant was not sold, but leased for a period of years on a yearly rental basis, a lease which was abandoned by mutual agreement after fourteen months. Neither in the writings which evidenced the transaction nor in the oral testimony is there evidence of an enforceable undertaking on the part of the petitioner not to engage in the wine business at Santa Rosa or in Sonoma County. For all we know, the petitioner could have begun a rival business at another plant in competition with Garrett and Company, in which event the latter would have been powerless to stop the petitioner through legal means. Nor, for that matter, is there any evidence of transfer of the right to conduct a wine business under the name of the DeTurk Winery. Indeed, while labels were transferred, there is no evidence that Garrett and Company ever used them on bottles for the wine which they purchased. The "Know-how" of its staff was not transferable. For the petitioner did not possess the right existing, at times, in contracts relating to baseball players or motion picture actors, to transfer employees or lend them to another concern. The only benefit Garrett and Company could derive from the accumulated skill of the petitioner's staff would stem not from the purchase of the wine and accessories, but from the willingness of the staff to work for Garrett and Company and the ability of the two to agree upon the conditions of future employment. Equally illusory, so far as practical consequences are concerned, was the transfer of the list of customers. Such transfer did not guarantee the continuance of custom, and Garrett and Company, even without the authorization of the petitioner, was free to solicit the petitioner's former customers if they sought custom among them, as to which the record is silent. It follows, that there were many elements absent in this case which warranted the Tax Court in finding that the transaction was merely a purchase of certain stock-in-trade and assets and did not constitute a transfer of the good will or of the business of the petitioner as a unitary whole. In the last analysis, each case depends upon particular facts. And in arriving at a particular conclusion, the trier of facts must take into consideration all the circumstances proved in the case and draw from them such legitimate inferences as the occasion warrants. And even where several apparently separate transactions are the subject of inquiry, a conclusion that the transfer or acquisition of certain assets was or was not a part of a single transaction, may depend upon the particular facts in each case. And, in determining the matter, the Tax Court is as free to "tie" several transactions together, as it is to "sever" them, in order to decide whether capital gain or loss has accrued. Cf. Helvering v. Security Savings & Commercial Bank, 4 Cir., 1934, 72 F.2d 874.
*177 (C)
The Oral Testimony Analyzed.
In what precedes, we have stressed chiefly the terms of the written agreements and the acts which followed their execution. The oral testimony did not strengthen the position of petitioner. We give it in substance.
Prior to October, 1942, petitioner had decided to go out of the wine business. Mr. Joseph T. Grace, president of the petitioner, and its sole stockholder, testified that he told Mr. L. A. Weller, agent of the purchaser, that he would not sell the wine inventory unless he sold everything connected with the business, including the good will. He testified further that he advised Weller that the winery was worth $125,000 and the inventory of wine on hand and the good will were worth $250,000. This latter figure was based on an estimate of $100,000 good will, arrived at by computing the net profits per year, and multiplying them by 5, for a five-year period; and $150,000 inventory.
After various negotiations, the petitioner entered a contract with Garrett & Company, whereby the latter agreed to lease the petitioner's winery and equipment for five years at an agreed rental and to purchase all its wine at 50 cents per gallon. The wine brought approximately $250,000. Grace testified: "I told him (Weller) we wanted $250,000 for the wine inventory and the good will."
"He indicated that Garrett and Company might be interested in leasing the winery and in paying the price to us for the wine that would meet the price we asked for the wine business." The license and the permit to manufacture were surrendered. The bottles and labels, and the plant personnel were turned over to the buyer, but there is no evidence that Garrett & Company ever put out wine under the DeTurk label. Grace testified that the total value of the winery was $375,000. In April, 1944, Garrett & Company was released from the lease agreement, and the plant was sold to others for $150,000.
Apart from Grace's testimony, there was testimony by another witness that the DeTurk Winery had a value in excess of the value of the tangible assets, but the exact amount was not given. There was also testimony that Mr. Grace's method of evaluating the good will was the correct one.
It is to be borne in mind that the sales memorandum dated January 20, 1943, spoke of the petitioner having "sold" and Garrett and Company "bought" the wine inventory.
Grace admitted that there was nothing in the corporate minutes that showed any intention to transfer or actual transfer of the good will. There is no evidence that the good will was carried on the books of the company at any valuation other than the value of the inventories and physical assets, such as the plant. No entries appear to have been made in the books against the item of good will, after the consummation of the transaction. Another very interesting fact speaks against "the unitary theory". Part of the proceeds received in 1942 from Garrett and Company, the petitioner treated as income and included it in its income and excess profits tax for that year. This conformed to the expressed desire of the petitioner during the negotiations that the matter be so treated, in order to avoid too high an excess profits tax in one war year. In his testimony, Grace identified a telegram sent by him to Garrett and Company on December 29, 1942, which stated (among other things) "Anxious to close deal immediately to get part of sales in this year income tax returns." In the face of this record and of the reference in the same telegram and in the answering telegram of Garrett & Company of December 30, 1942, to "inventory" and "lease" and "rental" of plant, the Tax Court was not required to take at its face value Grace's oral statements contradictory of these written documents and others, through which the sale was consummated, to the effect that, at the very time when these exchanges were taking place, it was his intention to part with the good will. As to this undisclosed and floating intention, we are in the same situation as this Court was in In re American Mail Line, 9 Cir., 1940, 115 F.2d 196, 199, when it said:
*178 "We cannot say as a matter of law that the court below was compelled to believe it."
As said in another case:
"The circumstances surrounding the alleged oral agreement, the time, place, and the care with which the written agreement apparently was drawn, all contradict the evidence of petitioner on this point and the Board was justified in concluding that the testimony was incredible." Woodall v. Commissioner, 9 Cir., 1939, 105 F.2d 474, 478. And see, Cohen v. Commissioner, 2 Cir., 1945, 148 F.2d 336.
And, as already appears (Part II (a) and (b) of this opinion), the accompanying legal reasoning of the Tax Court accords with the principles long sanctioned by this Court that only actual transfers of a going business and of the good will, which divest the transferor of the benefits accruing from the ownership of such business or good will shall be considered in determining capital gain or loss. See Stilgenbaur v. United States, 9 Cir., 1940, 115 F.2d 283; United States v. Adamson, 9 Cir., 1947, 161 F.2d 942.
IV
No Conversion of Stock in Trade.
One other matter should be adverted to. And it is this: The fact that by selling its stock in trade and leasing its plant, the petitioner divested itself of the means of carrying on the winery business, at least, until it acquired other facilities, did not change the character of the stock in trade and convert it into a capital asset. The petitioner merely chose to discontinue its business when it disposed of its inventory. It did not transfer its business. And the Tax Court was right in so holding. As we read the cases, the instances in which courts have held that such conversion occurred were those in which corporations or individuals were compelled by circumstances beyond their control to liquidate the business, and, in so doing, to dispose of capital assets which partook of the nature of an investment which the taxpayer was compelled to liquidate or were income-bearing assets which it was no longer advisable to hold on to. Thus, in Graham Mill & Elevator Co. v. Thomas, 5 Cir., 1945, 152 F.2d 564, 565, the taxpayer, a flour manufacturer, upon discontinuing its branches, disposed of some promissory notes and accounts receivable. As it was not engaged in the business of selling notes and accounts, the Court held that the sale was not in the course of business to customers "but a part of the ending of a business". Similarly, in Three States Lumber Company v. Commissioner, 7 Cir., 1946, 158 F.2d 61, the sale by a lumber company of timber lands from which they no longer derived income was held to be a sale of capital assets. Rightly. For the primary business of the company was not to sell timber lands but to sell, in the course of business, timber from the lands. These rulings accord with the view of this Court that the sale of timber by logging companies is business. Commissioner of Internal Revenue v. Boeing, 9 Cir., 1939, 106 F.2d 305; and see Williams v. McGowan, 2 Cir., 1945, 152 F.2d 570, 162 A.L.R. 1036.
So without deciding whether liquidation may or may not result in a conversion of stock in trade into capital assets, the important fact in this case is that the transfer which took place was the transfer of the stock in trade, wine, cooperage, labels, which the petitioner sold in the due course of its business to one customer, and from which it had derived its revenue in the past through sales to many customers. It did not sell the plant or any other tangible asset, as did the taxpayers in the cases just cited because they could no longer be held as income-bearing properties. Briefly put, the cases in which conversion was held to have occurred were those in which the taxpayer was compelled to rid himself, not of the things which he sold in due course of business, such as wine, cooperage, and the like, but of physical assets, such as timber lands and notes which could no longer be held as a source of products from which the income was derived.
The Tax Court saw clearly this distinction and concluded correctly that no conversion took place in this case. See *179 Richards v. Commissioner, 9 Cir., 1936, 81 F.2d 369, 106 A.L.R. 249.
The judgment of the Tax Court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1399112/ | 171 Ariz. 399 (1992)
831 P.2d 398
STATE of Arizona, Appellee,
v.
Randy Joseph WEDDING, Appellant.
No. 1 CA-CR 89-1264.
Court of Appeals of Arizona, Division 1, Department A.
January 14, 1992.
Review Denied June 30, 1992.
*401 Grant Woods, Atty. Gen. by Jessica Gifford Funkhouser, Chief Counsel, Crim. Div., Phoenix, for appellee.
Dean W. Trebesch, Maricopa County Public Defender by John W. Rood, III, James M. Likos, Deputy Public Defenders, Phoenix, for appellant.
OPINION
LEVI RAY HAIRE, Judge, Retired.
Appellant Randy Joseph Wedding (defendant) has appealed from judgments of conviction on thirty-two counts and the sentences imposed. For the reasons stated below, we affirm the convictions and sentences.
PROCEDURAL HISTORY
The defendant was indicted on four counts of burglary in the first degree of a residential structure, class 2 felonies, two counts of burglary in the first degree of a nonresidential structure, class 3 felonies, six counts of aggravated assault, class 3 felonies, sixteen counts of kidnapping, class 2 felonies, thirteen counts of sexual assault, class 2 felonies, and one count of attempted sexual assault, a class 3 felony.
After the defendant's motion to suppress evidence was denied, he waived his right to a jury trial and the case was submitted to the court on the record, consisting of the transcript of the grand jury proceedings and various departmental police reports.
The court found the defendant guilty and imposed aggravated sentences on all counts. The sentences collectively totaled 320 years.
FACTS
The facts leading to the arrest of the defendant are basically undisputed. Numerous sexual assaults with a similar modus operandi had occurred in Maricopa and Pima Counties. In particular, from March 12, 1986 through June 6, 1988, six women were assaulted in Maricopa County on different occasions. In one instance, the suspect gained entry to the woman's residence on the pretext of having car trouble. In the five other instances, the women were leasing agents for residential or commercial properties. In those cases, the suspect posed as a prospective tenant and while being shown the properties, committed the sexual and other assaults. On three occasions, the victims were threatened with a hand gun, and on three occasions, the victims were threatened with a knife.
A multi-agency task force was formed to investigate what became known as the case of the "leasing agent rapist." In connection with the investigation, a composite sketch of the rapist was made and publicly disseminated along with descriptions of three vehicles used by the suspect in the sexual assaults. On July 10, 1988, the Tempe Police Department was contacted by the defendant's 16-year-old neighbor. He told them the composite drawing looked like the defendant and that the defendant had vehicles similar to those used in the assaults. The neighbor supplied to the police a photograph of the defendant which matched the descriptions of the assailant given by the victims.
The police located a 1987 accident report relating to a motor vehicle accident in which the defendant was involved. The defendant had written a witness statement which was part of this report. During their investigation, the police had previously obtained from a rental office a card filled out by the leasing agent rapist. The police took both handwriting samples to a Department of Public Safety questioned document examiner who determined that they had been written by the same individual.
Based on this information, on July 11, 1988, at 3:30 p.m., the police obtained an order of detention for obtaining evidence of identifying physical characteristics pursuant to A.R.S. § 13-3905. The order authorized the taking of the defendant's finger-prints, head and pubic hairs, blood and saliva. The order specified that the evidence was to be taken at the facilities of the Tempe Police Department or Department of Public Safety "as soon as reasonably *402 practicable following the issuance of the order." Pursuant to A.R.S. § 13-3905, the order stated that the defendant could not be detained for more than three hours for the purpose of executing the order and that the order would be valid until executed, but in no event beyond fifteen days from the date of issuance.
The order was served on the defendant at 7:25 p.m. on the same day that it was issued. At that time, a police officer stopped the defendant's vehicle, asked the defendant for identification and then served the order. The police then took him to the Tempe Police Station to obtain the evidence.
The police first took the defendant's fingerprints. They were immediately matched with latent fingerprints found at the scenes where four sexual assaults had occurred. When these matched, the defendant was given his Miranda rights. Samples of head and pubic hairs, saliva and blood were taken, and the defendant was formally arrested at approximately 8:11 p.m. that evening.
On appeal the defendant raises the following issues:
1. Is A.R.S. § 13-3905 unconstitutional on its face and as applied to the defendant under the fourth amendment to the United States Constitution because the statute allows for the taking of physical evidence such as blood, saliva and pubic hair on less than probable cause?
2. Is A.R.S. § 13-3905 unconstitutional on its face under the fourth amendment to the United States Constitution because the statute fails to specify how to effectuate the detention of the identified person?
3. Is A.R.S. § 13-3905 unconstitutional as applied to defendant under the fourth amendment to the United States Constitution because the order of detention for obtaining identifying physical evidence failed to specify the time of taking the evidence?
4. Is A.R.S. § 13-3905 unconstitutional as applied to defendant under the fourth amendment to the United States Constitution because the manner in which the defendant was detained to obtain the physical evidence did not comply with the statute?
5. Does A.R.S. § 13-3905 violate Article 2, §§ 8 and 10 of the Arizona Constitution?
6. Did the court improperly impose consecutive sentences on Counts VI and VII?
LACK OF PROBABLE CAUSE STANDARD IN A.R.S. § 13-3905
The defendant argues that A.R.S. § 13-3905[1] is unconstitutional on its face *403 and as applied to him because it does not require probable cause and permits detention of the identified person and the taking of physical evidence beyond that permitted by the fourth amendment without probable cause. He further argues there was no such probable cause in this case.
The defendant argues that the United States Supreme Court cases interpreting the fourth amendment involving bodily intrusions to obtain some types of physical evidence have indicated that probable cause is required. Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966) (following lawful arrest for DUI, police could take blood samples with probable cause but without a search warrant because exigent circumstances existed). He notes that the Supreme Court has implied that in narrowly defined circumstances detention for finger-printing might be justified on less than probable cause, if prior judicial authorization has been obtained, Davis v. Mississippi, 394 U.S. 721, 89 S. Ct. 1394, 22 L. Ed. 2d 676 (1969), Hayes v. Florida, 470 U.S. 811, 105 S. Ct. 1643, 84 L. Ed. 2d 705 (1985), but argues that detention to obtain the other types of physical evidence enumerated in the Arizona statute is authorized only if there is a showing of probable cause which he alleges was not present in this case. Finally, while acknowledging that prior Arizona decisions have upheld the constitutionality of A.R.S. § 13-3905, the defendant asks this court to reconsider the issue in light of the United States Supreme Court decision in Winston v. Lee, 470 U.S. 753, 105 S. Ct. 1611, 84 L. Ed. 2d 662 (1985).
As the defendant concedes, the Arizona Supreme Court upheld the constitutionality of A.R.S. § 13-3905 (then A.R.S. § 13-1424) in State v. Grijalva, 111 Ariz. 476, 533 P.2d 533, cert. denied, 423 U.S. 873, 96 S. Ct. 141, 46 L. Ed. 2d 104 (1975). In Grijalva, the Arizona Supreme Court held that under the statute, probable cause to believe that the suspect committed the crime is not a necessary requirement for the temporary detention of a person to obtain evidence of physical characteristics. 111 Ariz. at 479, 533 P.2d at 536. See also State v. Stanhope, 139 Ariz. 88, 91, 676 P.2d 1146, 1148 (App. 1984); Long v. Garrett, 22 Ariz. App. 397, 527 P.2d 1240 (1974).
In Grijalva, the court noted that reasonableness is the primary inquiry in determining whether there is a violation of the fourth amendment, considering "all of the circumstances of the particular governmental invasion of a citizen's personal security." 111 Ariz. at 478, 533 P.2d at 535, citing Terry v. Ohio, 392 U.S. 1, 19, 88 S. Ct. 1868, 1878-79, 20 L. Ed. 2d 889 (1968). It noted that reasonableness involves balancing society's interest in preventing serious crime against the suspect's interest in privacy and stated that "[t]he key to the statute and its great strength is that a magistrate must make the necessary determinations." Grijalva, 111 Ariz. at 479, 533 P.2d at 536. The court further noted that consistent with the fourth amendment, the statute required a nexus between the person detained and the crime being investigated and it must be made clear to the magistrate that there is reasonable cause *404 to believe that such a connection exists. Id. The court specifically found constitutional the taking of photographs, fingerprints and head hair samples on reasonable cause, stating that:
The degree of intrusion into the person's privacy was relatively slight. Photographs, more so than fingerprints, involve none of the probing that the Davis court found to mark a search of an unreasonable nature. Similarly, clipping several head hairs is only the slightest intrusion upon the body, if any at all, and does not constitute anything unreasonable.
Id., 111 Ariz. at 479, 533 P.2d at 536 (citation omitted).
Then, in State v. Via, 146 Ariz. 108, 704 P.2d 238 (1985), cert. denied, 475 U.S. 1048, 106 S. Ct. 1268, 89 L. Ed. 2d 577 (1986), our supreme court again upheld the constitutionality of the statute in light of Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979) (seizure of suspect and custodial interrogation at police station without probable cause violates fourth amendment). In holding that Dunaway did not cast constitutional doubt on the statute and that its validity was not defeated by failure to provide that the detainee may have legal representation during detention, the court stated:
We believe, therefore, that A.R.S. § 13-3905 sets forth the type of detainment procedure that the United States Supreme Court has suggested might pass constitutional muster if narrowly circumscribed. Hayes v. Florida, 470 U.S. 811, 105 S. Ct. 1643, 84 L. Ed. 2d 705 (1985). Thus, we will continue to adhere to our holding in Grijalva, supra.
146 Ariz. at 114, 704 P.2d at 244.
The defendant claims, however, that the physical evidence taken in this case goes beyond the takings considered by the Arizona Supreme Court in Grijalva (photographs, fingerprints and head hairs) and Via (photographs, fingerprints and personal appearance), and that under Schmerber the taking of pubic hairs, saliva and blood requires the higher standard of probable cause rather than the reasonable cause approved by the court in Grijalva. He argues that the statute is unconstitutional on that basis and that the taking of this physical evidence from him on less than probable cause violated his fourth amendment rights.
The state's response below and on appeal is that in this case there was probable cause to both seize and search the defendant, and that, accordingly, even if the higher standard of probable cause was required, his rights were not violated and therefore he cannot challenge the constitutionality of the statute on that basis. Because the record clearly reflects that the issuance of the detention order was supported by probable cause, we agree.
Probable cause to arrest exists when an officer has reasonably trustworthy information sufficient to lead a reasonable person to believe that the offense was committed and that the person to be arrested committed it. State v. Dixon, 153 Ariz. 151, 153, 735 P.2d 761, 763 (1987). Probable cause to search exists when there are facts or circumstances which justify a reasonable belief that the place to be searched contains evidence that will connect the accused to the crime. State v. Moody, 114 Ariz. 365, 366, 560 P.2d 1272, 1273 (App. 1977).
In this case, such probable cause existed. The affidavit submitted in support of the order of detention for obtaining identifying physical evidence states that the police had information about a similar modus operandi in sexual assaults occurring in Maricopa and Pima Counties during an approximately two-year period; that in all of the assaults, the victims described the suspect as having the same physical characteristics; and that the defendant's photograph and composite picture matched those descriptions. The affidavit further stated that the defendant owned vehicles of a type that had been described by the victims in the sexual assaults as ones driven by the individual committing the assaults. Additionally, the police had a sample of the defendant's handwriting from a previously filed accident report and had obtained a writing sample of the rapist from one of the victims. *405 Upon examination by a questioned document examiner, it was positively determined that both had been written by the same individual. The police had obtained fingerprints from the various crime scenes and determined that the latent prints were identical. The police had also obtained hair and seminal fluid from the various crime scenes. Samples of head and pubic hair, blood, and saliva from the defendant were necessary for the purposes of comparison.
The affidavit clearly supports the state's position and the superior court judge's finding that there was probable cause to search and seize the defendant at the time of the detention. Therefore, the defendant's argument that his fourth amendment rights were violated because there was no probable cause fails. In arriving at this conclusion, we recognize that in certain circumstances a bodily intrusion may be so substantial that it constitutes an unreasonable search even though the facts would otherwise be sufficient to support a finding of probable cause to detain and search an individual. See Winston v. Lee, supra. The defendant, however, does not argue that the existence of probable cause would not justify his detention and the seizure of the physical evidence involved in this case. Accordingly, we need not address the circumstances involved in Winston and Winston's possible application to the facts of this case.
LACK OF SPECIFICITY AS TO MANNER OF DETENTION
The defendant argues that A.R.S. § 13-3905 is constitutionally infirm because it fails to require the magistrate to set forth a precise manner of obtaining the presence of the identified person. He suggests that this vagueness allows the police to effectuate the detention in an unreasonable manner which he argues occurred in this case. We disagree.
The statute contains specific procedures for detaining an individual. The detention is pursuant to an order obtained from a neutral magistrate. A.R.S. § 13-3905(A). The order of detention must specify the place for obtaining the evidence (A.R.S. § 13-3905(B)(6)). It must also specify the time of taking the evidence with the proviso that the detention not exceed three hours (A.R.S. § 13-3905(B)(7)), and the order must be executed with fifteen days (A.R.S. § 13-3905(B)(8)). Our supreme court has held that A.R.S. § 13-3905 is not unconstitutional "due to a lack of procedural safeguards." Via, 146 Ariz. at 113, 704 P.2d at 243. As stated in that case:
The good, therefore, that the fourth amendment was designed to promote, protection of the citizen from arbitrary intrusions into his personal security by law enforcement officials, see Pennsylvania v. Mimms, 434 U.S. 106, 108-09, 98 S. Ct. 330, 332 [54 L. Ed. 2d 331] (1977), is not offended by the statute.
Id. See also State v. Blazak, 114 Ariz. 199, 560 P.2d 54 (1977) (if order obtained pursuant to statutory safeguards implicit in statute, it has operated fully to protect the defendant).
We thus reject the defendant's argument that to satisfy fourth amendment requirements, the statute must direct the magistrate to specify not only the time and place of taking the evidence, but also the precise manner of detaining the identified person. Such a requirement would severely impede law enforcement's ability to decide on a case-by-case basis the most efficacious method to obtain the presence of an individual to gather the evidence. Indeed, in this case, the police thought it wise to delay the detention of the defendant until he left his home in order to avoid the possibility of otherwise creating a situation dangerous to the defendant's family and neighborhood. The failure of the statute to provide for an exact manner of detention does not render it unconstitutional.
LACK OF SPECIFICITY IN THE ORDER AS TO TIME OF DETENTION
The defendant argues that the statute was unconstitutionally applied to him because the order for obtaining identifying physical evidence failed to specify a specific time of taking the evidence as required by the statute, but rather stated that it was *406 to be obtained "as soon as reasonably practical following the issuance of this order." Relying on Long v. Garrett, 22 Ariz. App. 397, 527 P.2d 1240 (1974), he also argues somewhat inconsistently that the order should permit the identified person to appear at his convenience during the fifteen-day period that the order remains in effect. He concludes that the order in this case was fatally defective and failed to comply with the statute.
In our opinion, defendant has misinterpreted the requirements of the statute. In construing a statute, the primary principle is to determine and give effect to legislative intent. State v. Altamirano, 166 Ariz. 432, 435, 803 P.2d 425, 428 (App. 1990). To find legislative intent, the court must consider the content of the statute, the language used, its subject matter, historical background, the effects and consequences and the spirit and purpose of the law. Id., quoting Martin v. Martin, 156 Ariz. 452, 457, 752 P.2d 1038, 1044 (1988). Statutory provisions should be read together to give harmonious effect to all sections. State v. Standsberry, 114 Ariz. 351, 353, 560 P.2d 1258, 1260 (App. 1976).
The provisions of the statute pertinent to this issue are found in subsections A and B(7) and B(8). Subsection A provides:
The order shall require the presence of the ... individual at such time ... as the court shall direct....
Subsections B(7) and B(8) are as follows:
B. Any order issued pursuant to the provisions of this section shall specify the following:
....
7. The time that such evidence shall be taken except that no person may be detained for a period of more than three hours for the purpose of taking evidence.
8. The period of time, not exceeding fifteen days, during which the order shall continue in force and effect. If the order is not executed within fifteen days, a new order may be issued, pursuant to the provisions of this section.
We first note that the statute does not expressly require that the order designate a "specific" or "exact" time for the taking of the physical evidence. In fact, when subsections B(7) and B(8) are considered together, the implication of such an intent is negated. In our opinion, these subsections contemplate that a court will designate a place for the taking of the physical evidence and then set forth a time as specific as appears practical under the particular circumstances involved. Of course, the detention itself must be limited and must be effectuated within fifteen days. However, giving to an individual advance notice of a specific time to appear could provide an opportunity for the individual to evade detention, thereby seriously impeding law enforcement efforts to make effective use of the statute. Indeed, if the court was required to specify an exact time to appear, there would be no need to permit the order to continue in effect for fifteen days. Conversely, if the court could only direct the detention of a person at his convenience during the fifteen-day period, the requirement of specifying the time that such evidence shall be taken would be superfluous.
In our opinion, the legislature intended that the court have some flexibility in setting the time for detaining the identified person, subject to the statute's specific restrictions. Here, the order met the statutory requirements because it specified a time for the temporary detention of the defendant, reasonably fixed based upon the existing circumstances, and contained the required statutory limitations on the length of detention and the duration of the order. The order was not defective and the defendant's constitutional rights were not violated on this basis.
DEFENDANT'S CONTENTIONS CONCERNING THE MANNER IN WHICH DETENTION WAS EFFECTUATED
Defendant's argument that he was unconstitutionally detained under A.R.S. § 13-3905 is based on the false premise that there was no probable cause to support his forcible detention. Accordingly, we need not discuss that argument. Here, the record shows that there were circumstances *407 justifying an immediate detention of the defendant for the taking of the designated physical evidence rather than permitting him to appear at his convenience within the fifteen day period. While under the statute, an order could be entered that allows an individual to appear at his convenience, the statute also clearly contemplates a non-voluntary situation where "detention" is necessary. The statute's repeated use of the words "detained" and "detention" makes this intention evident.
Under the circumstances of this case, the detention of the defendant was reasonable and did not violate his fourth amendment rights.
PROTECTIONS UNDER THE ARIZONA CONSTITUTION
A. Article 2, Section 8.
The defendant argues that art. 2, § 8 of the Arizona Constitution provides greater protection than the fourth amendment to the United States Constitution regarding permissible detentions to obtain physical evidence.[2] We initially note that the Arizona Supreme Court has, in limited instances, found more protection in the Arizona Constitution, art. 2, § 8, than its federal counterpart because of textual differences. See State v. Bolt, 142 Ariz. 260, 689 P.2d 519 (1984); State v. Ault, 150 Ariz. 459, 724 P.2d 545 (1986); State v. Martin, 139 Ariz. 466, 679 P.2d 489 (1984). All of these cases focus on the warrantless entry into the home because the Arizona Constitution explicitly gives greater protection to the sanctity of the home.
We find nothing in the language of article 2, § 8 that suggests that the Arizona Constitution would not permit detentions to obtain physical evidence upon a showing of probable cause, and the defendant has cited no authority that suggests such a result. We therefore reject defendant's argument on this issue.
B. Article 2, Section 10.
The defendant also contends that art. 2, § 10 of the Arizona Constitution provides greater protection to a criminal defendant than does the fifth amendment to the United States Constitution regarding the taking of physical evidence.[3] The defendant does not argue that taking of physical evidence pursuant to A.R.S. § 13-3905 violates the fifth amendment. In fact, cases are to the contrary, finding that such evidence is nontestimonial in nature. See Schmerber v. California, supra (no fifth amendment violation to take blood); Campbell v. Superior Court in and for the County of Maricopa, 106 Ariz. 542, 479 P.2d 685 (1971) (no fifth amendment violation to take blood, breath or urine); State v. White, 102 Ariz. 162, 426 P.2d 796 (1967) (no fifth amendment violation to take fingerprints); State v. Armstrong, 189 Mont. 407, 616 P.2d 341 (1980) (no fifth amendment violation to take pubic hairs).
Our supreme court has specifically held that art. 2, § 10 of the Arizona Constitution does not afford an accused more protection than does the fifth amendment to the United States Constitution despite the variations in wording. White, 102 Ariz. at 163, 426 P.2d at 797; see also State v. Fendler, 127 Ariz. 464, 481, 622 P.2d 23, 40 (App. 1980), cert. denied, 452 U.S. 961, 101 S. Ct. 3108, 69 L. Ed. 2d 971 (1981).[4] Thus, we reject the defendant's argument that the detention violates art. 2, § 10 of the Arizona Constitution.
*408 CONSECUTIVE SENTENCES ON COUNTS SIX AND SEVEN
At sentencing, the court first orally pronounced sentence on counts one through seven and stated that those sentences were to run concurrently with each other. A few moments later, the court stated that "with respect to counts six and seven, it is ordered that those sentences 21 years and 15 years respectively, shall run consecutively to counts one through five." After the judge finished his oral pronouncement of the sentences, but during the same sentencing hearing, defense counsel requested clarification with regard to the sentences on counts six and seven because of the inconsistency in the oral pronouncement. The court clarified the inconsistency by stating that count six was to run consecutively to counts one through five, and count seven was to be consecutive to count six.
The defendant argues that under Rule 26.16, Arizona Rules of Criminal Procedure, the court lacked the authority to make the sentences consecutive after first stating that they were to run concurrently to counts one through five. The defendant also argues that imposition of the consecutive sentences violated the defendant's constitutional guarantee against double punishment provided by the fifth amendment to the United States Constitution. These contentions have no merit.
This case presents facts similar to those in State v. Rendel, 18 Ariz. App. 201, 501 P.2d 42 (1972). There the court imposed sentence on the defendant, and counsel asked for clarification about the sentence. The court on reflection said that it had incorrectly pronounced the sentenced and orally pronounced a different sentence. This court noted that the trial court had the power to correct obvious errors in sentencing until its jurisdiction was lost by appeal. See also State v. Glasscock, 168 Ariz. 265, 812 P.2d 1083 (App. 1991).
Further, we find that the correction of the sentences at the sentencing hearing did not violate the double jeopardy clause of the United States Constitution. In Bozza v. United States, 330 U.S. 160, 67 S. Ct. 645, 91 L. Ed. 818 (1947), the Supreme Court held that correction of a sentence imposed because of an inadvertent error by the judge five hours later did not offend the double jeopardy clause. The Court specifically noted that the constitution does not "require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner." Id., 330 U.S. at 166-67, 67 S. Ct. at 649, 91 L.Ed. at 822. See also Merry v. State, 752 P.2d 472 (Alaska App. 1988) (court's imposition of consecutive sentence ten minutes after mistakenly imposing concurrent sentence did not violate double jeopardy); State v. Wirtala, 231 Mont. 264, 752 P.2d 177 (1988) (amended sentence imposed nine days after original sentence orally pronounced but not reduced to writing, signed by the judge and filed with the court did not violate double jeopardy).
The cases cited by the defendant are inapposite because they stand for the proposition that when an oral pronouncement and written judgment differ, the oral pronouncement will generally control. However, here the court made an incorrect oral pronouncement and had the power to immediately correct the original oral pronouncement to conform to its intent. The consecutive sentences on counts six and seven were properly imposed.
We have reviewed the record for fundamental error pursuant to A.R.S. § 13-4035 and have found none.
The convictions and sentences are affirmed.
EHRLICH, P.J., and VOSS, J., concur.
Note: Retired Judge LEVI RAY HAIRE was authorized to participate in this appeal by order of the Chief Justice of the Arizona Supreme Court pursuant to Ariz. Const. art. 6, § 20, and A.R.S. § 38-813.
NOTES
[1] A.R.S. § 13-3905 provides:
A. A peace officer who is engaged, within the scope of his authority, in the investigation of an alleged criminal offense punishable by at least one year in the state prison, may make written application upon oath or affirmation to a magistrate for an order authorizing the temporary detention, for the purpose of obtaining evidence of identifying physical characteristics, of an identified or particularly described individual residing in or found in the jurisdiction over which the magistrate presides. The order shall require the presence of the identified or particularly described individual at such time and place as the court shall direct for obtaining the identifying physical characteristic evidence. Such order may be issued by the magistrate upon a showing of all of the following:
1. Reasonable cause for belief that a specifically described criminal offense punishable by at least one year in the state prison has been committed.
2. Procurement of evidence of identifying physical characteristics from an identified or particularly described individual may contribute to the identification of the individual who committed such offense.
3. Such evidence cannot otherwise be obtained by the investigating officer from either the law enforcement agency employing the affiant or the criminal identification division of the Arizona Department of Public Safety. B. Any order issued pursuant to the provisions of this section shall specify the following:
1. The alleged criminal offense which is the subject of the application.
2. The specific type of identifying physical characteristic evidence which is sought.
3. The relevance of such evidence to the particular investigation.
4. The identity or description of the individual who may be detained for obtaining such evidence.
5. The name and official status of the investigative officer authorized to effectuate such detention and obtain such evidence.
6. The place at which the obtaining of such evidence shall be effectuated.
7. The time that such evidence shall be taken except that no person may be detained for a period of more than three hours for the purpose of taking such evidence.
8. The period of time, not exceeding fifteen days, during which the order shall continue in force and effect. If the order is not executed within fifteen days, a new order may be issued, pursuant to the provisions of this section.
C. The order issued pursuant to this section shall be returned to the court not later than thirty days after its date of issuance and shall be accompanied by a sworn statement indicating the type of evidence taken. The court shall give to the person from whom such evidence was taken a copy of the order and a copy of the sworn statement indicating what type of evidence was taken, if any.
D. For the purposes of this section, "identifying physical characteristics" includes, but is not limited to, the fingerprints, palm prints, footprints, measurements, handwriting, hand-printing, sound of voice, blood samples, urine samples, saliva samples, hair samples, comparative personal appearance, or photographs of an individual.
[2] The fourth amendment protects against "unreasonable searches and seizures." Art. 2, § 8 provides that "no person shall be disturbed in his private affairs or his home invaded, without authority of law."
[3] The fifth amendment provides that "No person ... shall be compelled in any criminal case to be a witness against himself...." Art. 2, § 10 provides that "No person shall be compelled in any criminal case to give evidence against himself."
[4] In support of his position, the defendant relies on a law review article co-authored by Justice Stanley G. Feldman, Double Security of Federalism: Protecting Individual Liberty in the Constitution, 20 Ariz.St.L.J. 115 (1988). However, Justice Feldman specifically notes, albeit with some criticism, that the Arizona courts have equated the state constitutional self-incrimination clause with the fifth amendment. Id. at 126. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3444528/ | Reversing.
The appellants and plaintiffs below recovered a judgment against the appellees and defendants below in the Lincoln circuit court at its regular November term, 1937, for the total sum of $1,927.01. Plaintiffs' debt that was merged in the judgment was contracted and created prior to the acquisition of a farm in Lincoln County by defendant, W.L. Dunagan, containing 1371/2 acres. After acquiring it, and after creating plaintiff's debt, he, with his wife, Mary Lou Dunagan, mortgaged it to the North Life Insurance Company to secure a debt of $6,000 evidenced by notes extending over a long period. Suit was brought by the company to collect the balance due on its debt and to enforce the mortgage, but in the meantime Mrs. Dunagan became of unsound mind and was adjudged to be so and the appointment of a committee for her was made. She was, therefore, incapable at the time of the foreclosure proceedings to execute any contract through and by which the debt due the insurance company might be refinanced.
Dunagan and his wife had reared a young man in the neighborhood by the name of Shelby Lutes, and in the circumstances it was agreed between the husband, W.L. Dunagan, and Lutes, that a judgment for the sale of the mortgaged farm might be entered and it sold by *Page 27
the commissioner at which Lutes (who possessed no property whatever) would purchase it in his name and later, after obtaining deed thereto, refinance the debt by giving a lien to a new creditor for an amount sufficient, for that purpose; or sell a sufficient amount of the farm to liquidate the judgment of the insurance company and, hold the balance for the use and benefit of William L. Dunagam The parol agreement was carried out and. Lutes became the purchaser at the decretal sale. Upon, his bid being accepted by the commissioner it became necessary for him to execute sale bonds as directed by the judgment. He procured one F. Lee Hill and one C.C. Perkins, to become his sureties on his sale bonds upon condition that if they were compelled to pay and satisfy the bonds, then Lutes would assign his purchase to them with the privilege of refunding to them the amount they had paid, and if done within a year "then they will reconvey said farm to said William L. Dunagan." A written contract was entered into on the 17th day of August, 1934, to that effect, which was signed by W.L. Dunagan, Shelby Lutes, F. Lee Hill and C.C. Perkins. After procuring the commissioner's deed, following the agreements and contracts as outlined, Lutes — with possibly the assistance of Dunagan — liquidated the entire indebtedness represented by the judgment of the insurance company by selling and conveying 78.18 acres of the farm, leaving a balance of 67.05 acres unencumbered, but the title to which continued in Lutes as the nominal, decretal purchaser.
Plaintiffs and appellants raised execution on their, judgment and placed it in the hands of the sheriff of Lincoln County who returned it "no property found." They thereupon instituted against defendants and appellees this equity action in the nature of a Bill of Discovery — as is provided by Section 439 of our Civil Code of Practice — and which action the section expressly prescribes may be employed for the discovery and appropriation by the creditor "of any money, chose in action, equitable or legal interest, and all other property to which the defendant is entitled, and for subjecting the same to the satisfaction of the judgment; and in such actions, persons indebted to the defendant, or holding money or property in which he has an interest, or holding evidences or securities for the same, may be also made defendants."
In their petition plaintiffs averred the facts we have *Page 28
related, but in greater detail, bringing into the case the written agreement referred to by an amended petition. Prior to the filing of that amendment the court sustained a demurrer filed to the original petition by Lutes, but upon what ground the record does not disclose, since the court filed no opinion, but possibly it was because the court concluded that plaintiffs had failed to aver an enforceable trust against Lutes, there being no writing brought forward up to that time evidencing such a trust. At any rate, the amended petition disclosed such a writing and inserted it verbatim as a part of it. However, the court sustained the demurrer filed by Lutes to the petition as so amended, but again delivered no opinion, or if one, it was not made a part of the record and brought here.
In the meantime it is disclosed by the record that Dunagan and his wife's committee filed a pleading which is referred to in the record as "answer, counterclaim and cross petition," to which Lutes appears to have filed a general demurrer which the court overruled, the order reciting: "and he is given leave and time to file his answer and plead further hereto." We know nothing of what was contained in that pleading to which he was given leave to respond, since it is not made a part of the record and the questions it raised appear to have been deferred and not decided. After the court sustained the demurrer filed by Lutes to plaintiffs' petition they declined to plead further as against him and their cause of action seeking to appropriate to the payment of their judgment the balance of the farm to which he held title as trustee for Dunagan, the plaintiffs' debtor, was dismissed, to reverse which they prosecute this appeal.
As said, neither the record nor briefs of counsel disclose the ground, or grounds, upon which the court sustained the demurrers referred to, and if the first one was based upon the surmised ground above pointed out, i. e. parol trust concerning real estate, and if that ground was well taken (a question we need, not here decide), it was removed upon the filing of the amended petition, whereby it was pointed out that the original parol trust was reduced to writing and signed by all parties interested in the subject matter.
Counsel for Lutes on this appeal cite us to the cases of Leitchfield Milling Company v. Rogers, 239 Ky. 481, *Page 29
39 S.W.2d 961; Wittenauer v. Kaolin, 228 Ky. 679, 15 S.W.2d 461, and Pike County v. Sowards, 147 Ky. 37,143 S.W. 745, as sustaining the judgment appealed from, but in neither of them was there any involved property, or interest of the debtor that an action like this could reach under the provisions of the section of the Code supra, authorizing it. In neither of them was involved any chose in action, or any equitable or legal interest, or any property right to which the debtor was entitled that might be subjected to the payment of plaintiffs' debt. Two of them (The Pike County and Wittenauer cases) sought to reach defendant's right to maintain a tort action but which we held was not comprehended by the section of the Code supra, as being a claim that might be reached or appropriated by this authorized action; whilst the Leitchfield Milling Company case was where the plaintiff debtor sought to appropriate enhanced value of real estate after his alleged fraudulent conveyance of it to another, which was held invested no interest in him, and, consequently, could not be reached by his creditor. Those cases are far afield from the one presented by the facts of this case, as alleged by plaintiffs in their petition as amended and which facts were admitted by the demurrers filed thereto.
Here we have a writing, duly executed by the trustee and the owner of the property, whereby the former agrees to hold the title to the property sought to be appropriated for the use and benefit of the latter, and which he was doing at the time this action was filed. It created in the cestui quo trust (Dunagan) an enforceable contractual right against his trustee and made him the equitable title holder of the property sought to be subjected, which right is specifically mentioned in the section of the Code supra as being one that the action therein provided for could reach. See the text in 8 Rawle C. L. page 9, Section 7; 15 C. J. 1406, Section 89, and the cases of Farmers Bank v. Morris, 79 Ky. 157; Brackett's Adm'r v. Boreing's Adm'r,131 Ky. 751, 110 S.W. 276, 115 S.W. 766, 33 Ky. Law Rep. 292; Merriwether v. Bell, 139 Ky. 402, 58 S.W. 987, 22 Ky. Law Rep. 844, and Landy v. Moritz, 109 S.W. 897, 33 Kv. Law Rep. 223. The cited cases and texts clearly hold that whatever else may be subjected by a creditor in this character of action it is certain that enforceable contractual rights, creating vested property interest in the debtor, *Page 30
may be reached and appropriated by the creditor and which is especially true with reference to enforceable trust agreements wherein the debtor is the owner of the equitable title to the property sought to be subjected.
Whether or not the debtor, Dunagan, in this case, or his wife has any defense to the prima facie cause of action set forth in plaintiff's pleadings, we know not; but, admitting the facts as averred in those pleadings — which the demurrer filed by Lutes did — we unhesitatingly conclude that the court was in error in sustaining his demurrer and in dismissing plaintiffs' action against the trustee upon their failing to plead further.
Wherefore, for the reasons stated, the judgment is reversed, with directions to set it aside and to overrule the demurrer filed by Lutes to plaintiffs' petition as amended, and for other proceedings not inconsistent with this opinion. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4005952/ | This is an action for death by wrongful act in which the court directed a verdict for defendants.
The deceased, Otis Rogers, was killed October 20, 1934, in a collision, at night, between a Ford automobile, in which he was riding as a guest, and a motor truck standing on the used portion of a public road, in Roane County, designated as State Route No. 5. The truck was one of three owned by Valla Mowery and Henry Mowery (doing business under the firm name of M. M. Motor Express Company) and operated in the transportation of gravel and fine shale, which were being used by defendant, Southern Ohio Quarries Company, in surface improvement of the road under a contract between *Page 749
it and the state road commission. The Quarries. Company, by oral agreement, was paying Mowery thirty-five cents per ton to haul the material from railroad cars at Spencer to the place of use.
The trucks were loaded from the railroad cars by means of a conveyor which the company owned and operated. It seems also that the cars were hauled by the trucks, at the direction of servants of the company, to the place of loading. A spreading apparatus belonging to the company was attached to the loaded truck when it reached its destination. It was then driven slowly while the driver operated the bed hoist and a servant of the company manipulated the tail gate lever thereof, causing a gradual flow of the gravel into the spreader. This process of unloading, which was supervised by a foreman of the company, resulted in an even distribution of each load of gravel over one-half of the width of the road for a distance of 75 to 100 feet. The shale was later spread over the gravel by similar process without the use of the spreader. Agents of the company directed the drivers of the trucks when and what to haul. The trucks were operated day and night only when and as the material was needed. The company furnished the drivers to the Mowerys, through a Federal Re-employment Agency, but a foreman of the Mowerys supervised the drivers and the maintenance of the trucks. H. C. Slater, manager and treasurer of the defendant company, states it hired the drivers. Payroll reports made by the company to the state road commission, containing the names of the drivers and foreman, designated the trucks as rented. The company paid the wages of the drivers and foreman, and in turn deducted the amounts from the compensation to the Mowerys. The truck, with which the Ford car collided, had broken down en route from the place of loading to the point of distribution, and was being repaired at the time of or immediately before the accident. The action was brought upon the theory that Hickel, the driver of the truck, was the servant of the company. Defendants insist that Mowery was an independent contractor, and that there is no liability against the Quarries Company.
The defendant company relies upon Porter Construction Co. *Page 750
v. Burton, 156 Okla. 72, 8 P.2d 64; Billig v. SouthernPacific Co., 189 Cal. 477, 209 P. 241; Manning v. TexasEmployer's Assurance Assn., (Tex.Civ.App. 1933)67 S.W.2d 389; Wagoner v. A. A. Davis Construction Co.,112 Okla. 231, 240 P. 618; Busch v. Seaboard By-Product Coke Co.,100 N.J.L. 304, 126 A. 311; and Charles v. Barrett, 233 N.Y. 127,135 N.E. 199, involving hauling contracts.
The first case presented a compensation claim for injury sustained by Burton while employed by the construction company to haul with his own truck cement, sand and gravel at twenty-five cents for the first mile and fifteen cents for each additional mile. The foreman of the contractor directed him where to get the materials, which were being used by it in street improvement. At the places of loading and unloading, employees of the construction company directed Burton where to place his truck. The loading and unloading was also done by employees of the company. Burton was required to begin work at seven a. m., and continue while the concrete mixer was in operation. He was also directed to haul over a specified route, but only for the purpose of determining his compensation. In holding that Burton was an independent contractor, the court said: "An independent contractor is one who engages to perform certain services for another according to his own manner and method, free from control and discretion of his employer in all matters connected with the work, except as to the result or product" thereof.
In the Billig case, a general hauling contractor (Geiger) engaged Harris, the owner of a truck, to haul gasoline for Gilmore Petroleum Company. Harris furnished the truck and the driver (Pratt) for the compensation of $1.90 per ton of gasoline hauled. The court rejected the theory that Pratt was the servant of Geiger because the foreman of Geiger directed Pratt "where to load, and what to load, and how to load."
In the Manning case, James, the owner of trucks, was engaged in hauling road material for Dodd Wedegartner (general contractors) from a chute at a railroad siding to the concrete mixer on the job for a stipulated compensation for each load. In determining whether the driver (Manning) *Page 751
of one of the trucks was a servant of the general contractor, the court observed: "Looking to all of the facts surrounding this transaction, we conclude that James, an independent contractor, was the employer of Manning, exercising the right of control over his employment, and directing his movement by such means and methods as he thought proper. In no sense of the term 'employee' was Manning employed by Dodd Wedegartner; they did not hire him, paid him nothing for his services, and were lacking in interest as to his action and movement, except to exercise the right of supervision of the work being done under their contract with James, seeing that the trucks were loaded and unloaded at specified places, as Dodd Wedegartner had contracted with James."
Wagoner v. A. A. Davis Construction Company is also a compensation case in which the claimant owned and operated three trucks hauling gravel for a general contractor. The contract between claimant and the contractor was oral, was subject to termination at the will of either party, there being no time agreed upon nor any special quantity of gravel to be hauled. The particular circumstance relied upon by the claimant to establish the relationship of master and servant was that as he "was required to deposit the gravel as directed by respondent, he did not control the method by which his contract was being performed so as to make him an independent contractor within the rule established by the authorities." On this point the Court held: "It must be remembered, however, that the place at which the gravel was to be deposited was not fixed by the contract in any particular point, and therefore the directions given by respondent related merely to the results of the work rather than to the method by which the work was to be performed. An independent contractor is always subject to the direction of the employer as to the result of the work as distinguished from the method employed in its performance. There was no direction by the respondent as to how many trucks the claimant should use, or whether he should use team and wagon instead of trucks, or any direction as to the hours of labor. Nor did the respondent exercise any authority as to the workmen employed by claimant in the performance of his contract, the claimant *Page 752
being left free to employ his own workmen at a wage agreed upon between them. It is also urged that the relation is that of employer and employee because the claimant did not have a specific and well-defined piece of work to perform for a lump sum, and that his services could be dispensed with by the employer at will. We do not think there is any merit in this contention. Owing to the peculiar nature of the work, the location of the place where the gravel should be dumped varied as the work of constructing the highway progressed, and we know of no reason why the existence of the relation of principal and independent contractor should be made to depend upon the nature and character of the work."
The defendant in Busch v. Seaboard By-Product Coke Company
was engaged in selling coal, and in order to make deliveries, entered into a contract with Cullum to deliver by his trucks at stipulated prices per ton. The trucks carried a sign on which appeared the name of defendant. The drivers were employed and paid by Cullum. The court held as a matter of law that the relation of master and servant did not exist between the parties because the defendant loaded the trucks, gave the drivers the addresses of the customers, and instructed them where to make deliveries by means of a chute and where it would be necessary to carry the coal.
The determination of the status of independent contractor (a question ordinarily for the jury) depends upon the peculiar facts of the particular case. "Whether or not the right of control or the want of it, determinative of the relationship, exists, is ordinarily a question of fact for the jury, and is usually arrived at by inference from the terms of the contract, the character of the employment, and all the relevant facts and circumstances. And the court is not justified in taking such question from the jury unless the evidence in regard to it is very clear and unequivocal." 10 Blashfield, Cyclopedia of Automobile Law and Practice, sec. 6641, p. 416.
In Smith Brothers Contracting Co. et al. v. O'Bryan, (Tex.Civ.App.) 62 S.W.2d 505, O'Bryan recovered judgment against Smith Brothers for personal injury sustained by him when struck by a truck owned and operated by Henson in hauling road material for Smith Brothers. The syllabus of *Page 753
the case follows: "Whether driver of truck involved in collision and hauling for defendants who paid per load without control of driver was independent contractor for whose negligence defendants were not liable held for jury. Evidence disclosed that truck driver was engaged in trucking business for himself; that he owned truck used at time of collision; that defendant would pay per load and had no direction over truck driver as to number of loads and route taken; that there was no contract between defendant and its truckers; and that truck driver paid for oil, gasoline, and repairs."
Newell Contracting Co. et al. v. Lindahl, 181 Ark. 272,25 S.W.2d 1052, involved a contract whereby the contractor and Allison hired Glover to use his and other trucks in hauling and placing gravel on a public highway which was being improved under a contract with the state highway department. Glover hired Corn to drive his truck. Lindahl sued the contracting company and Allison for damage to his automobile in a collision with the Glover truck while engaged in hauling the material for the company. Although the case involved no peculiar facts, the court held that the testimony was sufficient to present the issue as to whether Allison and Glover were independent contractors.
In Delamar Allison v. Ward, 184 Ark. 82, 41 S.W.2d 760, Delamar Allison contracted with the state highway department to haul and spread gravel upon public roads by "force account." They hired numerous persons using their own trucks to do the hauling. The pit from which the gravel was taken was controlled by Delamar Allison who also retained a certain part of the wages of the drivers of the trucks. An employee of the highway department supervised the dumping of the gravel on the road and the route over which the trucks traveled was under the supervision of Delamar Allison. The court held that the evidence was sufficient to sustain a finding that those engaged in the hauling were not independent contractors.
Chase v. The American Press Brick Co., (Mo.App.)31 S.W.2d 246, involved a contract between the Brick Company and Doyle whereby Doyle was engaged to haul clay for the company at so much per ton. An employee of the company *Page 754
was in charge of the clay fields, and its superintendent directed the driver where to unload the material. The court held that the facts were sufficient to submit the case to the jury on the issue as to whether Doyle was the servant of the company or an independent contractor.
In McLeod v. Security Union Insurance Co., (Tex.Civ.App.)22 S.W.2d 952, McLeod asserted a claim for compensation for injury sustained while engaged in driving a truck owned by Menefee, who had an oral contract with Whitham Company to haul gravel from the pit to a washing apparatus owned and used by the company on a street paving job. The services of McLeod were to be acceptance to Whitham Company. The entire operation of loading and unloading the gravel was under the control of Whitham Company who determined the hours for hauling the gravel. The court held that the evidence was sufficient to support the issue as to whether McLeod was the servant of Whitham Company.
In Ellis Lewis v. Warner, 180 Ark. 53, 20 S.W.2d 320, Ellis Lewis, as contractors in the construction of a rock road, employed thirty persons with trucks to haul crushed rock to be distributed along the highway as directed by Ellis
Lewis. The haulers furnished their own trucks, paid all the expenses of operation, and worked as and when they desired for a stipulated compensation per ton. The court held that the evidence was sufficient to go to the jury on the issue as to whether the relation between the contractors and the haulers was that of master and servant or independent contractors.
In view of the facts that the drivers of the trucks were subject to the call of the company, day or night; that they worked only as the material was used and assisted the company employees in incorporating it into the work; and that they were furnished by the company to Mowerys, and the other facts and circumstances in the case, we are of opinion it should have been submitted to the jury. The facts in the case, although virtually undisputed, are such as would in our opinion justify more than one reasonable inference by the jury. Where the admitted facts are such that fair-minded *Page 755
men might draw different inferences from them, the case is one for the jury rather than the court. Ketterman v. Dry ForkRailroad Co., 48 W. Va. 606, 37 S.E. 683.
The judgment of nil capiat is reversed and the case remanded for further proceedings.
Reversed and remanded. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/7433294/ | Mandamus denied without opinion. | 01-03-2023 | 07-29-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/126807/ | 537 U.S. 1161
McDONALDv.EXXONMOBIL CHEMICAL CO.
No. 02-923.
Supreme Court of United States.
January 21, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.
2
C. A. 5th Cir. Certiorari denied. Reported below: 48 Fed. Appx. 917. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/4000280/ | The plaintiff, Willett, commenced this action on July 26, 1923, in the superior court for King county, seeking an injunction restraining the defendants, city officials of the city of Seattle, from proceeding with the construction and incurring the expense of a power sub-station in the city as an addition and betterment of its municipal light and power plant. The only relief sought is purely injunctive and preventive in its nature; the plaintiff's claim of relief being rested upon the theory that the city officials did not make proper preliminary estimates and publication thereof with reference to the proposed work as prescribed by ch. 183, Laws of 1923, p. 609 [Rem. 1923 Sup., § 10322-1.] No restraining order or temporary injunction staying the hands of the city officials while the action was pending was issued, and upon a hearing the superior court denied the injunctive relief prayed for *Page 89
and rendered final judgment accordingly, from which the plaintiff has appealed to this court.
Before the appeal was ready for hearing in this court, it was uncontrovertibly made to appear to us that the city officials, being at all times left free to proceed, there being no restraining order or temporary injunction, proceeded with the work and acts sought to be enjoined, to their completion. Manifestly, therefore, there is now nothing to enjoin and the controversy, for all practical purposes, has ceased to exist. Upon this ground respondents move this court to dismiss the appeal. Should we proceed to dispose of the cause upon the merits, it is now manifest that we would be but deciding a moot question. Because of this condition, repeated decisions of this court call for the granting of a motion to dismiss the appeal. See: Wilson v. Fraser, 67 Wn. 347, 121 P. 829; Carr v.Montesano, 76 Wn. 380, 136 P. 363; Vollman v. IndustrialWorkers of the World, 79 Wn. 192, 140 P. 337; BarberAsphalt Paving Co. v. Hamilton, 80 Wn. 51, 141 P. 199; and our other decisions therein cited.
The appeal is dismissed.
TOLMAN, C.J., BRIDGES, MITCHELL, and MAIN, JJ., concur. *Page 90 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2791746/ | COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Huff, Judges Petty and McCullough
UNPUBLISHED
Argued by teleconference
ANTONIO FIGUEROA
MEMORANDUM OPINION* BY
v. Record No. 0149-14-3 JUDGE STEPHEN R. McCULLOUGH
APRIL 7, 2015
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
Bruce D. Albertson, Judge
J. Ryan King (Cook Attorneys, PC, on briefs), for appellant.
Eugene Murphy, Senior Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
Antonio Figueroa challenges an order revoking the balance of his suspended sentence.
He argues that the trial court lacked the authority, on August 28, 2012, to extend his probation
and, therefore, could not revoke the remainder of his suspended sentence on December 31, 2013,
for violating the terms of his probation. He also contends that the trial court did not have
jurisdiction over him on August 28, 2012 due to inadequate notice of the upcoming probation
revocation hearing. This lack of notice, he argues, rendered the order void. We disagree and
affirm.
BACKGROUND
On January 22, 2008, Figueroa was convicted of driving under the influence, third or
subsequent offense, in violation of Code § 18.2-266, and failure to stop at the scene of an
accident, in violation of Code § 46.2-894. For driving under the influence, the court sentenced
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
him to serve three years’ incarceration with two years and six months suspended. On the
conviction for failure to stop, the court imposed and suspended a sentence of twelve months’
incarceration. The court did not specify for how long the sentence would be suspended. The
court ordered appellant to serve supervised probation for two years. Figueroa was released to
supervised probation on June 28, 2008.
On May 10, 2011, a probation officer wrote to the court, asking it to extend appellant’s
term of probation indefinitely to ensure that appellant paid his court costs. On May 27, 2011, the
court entered an order extending appellant’s supervised probation until June 28, 2012.
Several years later, on July 23, 2012, the probation officer again asked the court for an
indefinite extension of appellant’s probation to ensure that appellant paid his court costs. The
record reflects that, following a hearing on July 31, 2012, and by order dated August 28, 2012,
the court extended appellant’s probation “indefinitely until all court costs are paid in full.” The
record reveals no objection to this order.
Almost one year later, on July 29, 2013, the probation office informed the court that
appellant had been arrested on three felony offenses and one misdemeanor. In response,
appellant filed a motion to dismiss, arguing that his probation had expired on June 28, 2012, and
that the court’s order dated July 31, 2012, was invalid. He also argued that he did not receive
reasonable notice of the July 31, 2012 proceeding. He argued that the court had “neither
personal jurisdiction over [him] nor subject matter jurisdiction over the alleged violation.”
At a hearing, appellant’s probation officer testified that she called appellant on July 30,
2012, and informed him that a hearing was scheduled for the following day. She told him that he
needed to be present and advised him that the court might extend his probation. According to the
probation officer, appellant responded that he could not attend because he had to work.
-2-
Appellant did not recall this conversation. The trial court accepted the probation officer’s
testimony.
The trial court overruled appellant’s motion to dismiss and revoked the balance of his
previously suspended sentence by order dated December 31, 2013.
ANALYSIS
A trial court’s decision to deny a motion to dismiss involves a purely legal determination.
Therefore, we review its decision de novo on appeal. See Young v. Commonwealth, 273 Va.
528, 533, 643 S.E.2d 491, 493 (2007).
I. THE ORDER OF AUGUST 28, 2012, IS NOT VOID FOR LACK OF NOTICE.
We begin with appellant’s second assignment of error, which challenges the validity of
the notice given to him before the July 31, 2013 hearing. Figueroa points to Code § 19.2-304,
which requires “reasonable notice” to both the defendant and the Commonwealth before a court
revokes or modifies any condition of probation. He argues that oral notice the day before the
hearing is not reasonable. Citing Mohamed v. Commonwealth, 56 Va. App. 95, 101, 691 S.E.2d
513, 516 (2010), appellant argues that a court must have “notice jurisdiction” as a prerequisite
for a court’s exercise of its jurisdiction. In appellant’s view, notice means “effective notice.” He
argues that the notice here was ineffective and, therefore, the trial court acted without jurisdiction
to extend his probation.
Generally, “a judgment in a criminal case cannot be attacked collaterally.” Eagle, Star &
British Dominions Ins. Co. v. Heller, 149 Va. 82, 100, 140 S.E. 314, 319 (1927). A void
criminal judgment, however, may be set aside at any time, either on direct appeal or by collateral
attack. Morse v. Commonwealth, 6 Va. App. 466, 468, 369 S.E.2d 863, 864 (1988). The
existence of a legal error in a proceeding, however, does not ordinarily render that proceeding
void. Robertson v. Commonwealth, 181 Va. 520, 536, 25 S.E.2d 352, 359 (1943) (“[A]
-3-
judgment rendered by a court of competent jurisdiction is not void merely because there are
irregularities or errors of law in connection therewith.”).
A judicial declaration that a proceeding is void is highly disruptive and exacts significant
costs. It completely erases the effort and expense of the parties and of the court with respect to
the proceeding in question. A declaration of voidness, which may come many years after an
adjudication, also upsets settled expectations. Moreover, it may be difficult or impossible to
reinitiate the proceedings when memories have faded or exhibits or court records have been lost
or destroyed. Because of these significant costs and risks, the universe of defects that render a
proceeding void, as opposed to voidable, is a small one.
“It is elementary that the purpose of notice in a criminal proceeding is to inform the
accused of the charge against him and to afford him reasonable opportunity to prepare his
defense.” Turner v. Commonwealth, 216 Va. 666, 668, 222 S.E.2d 517, 519 (1976). A court
cannot revoke a suspended sentence if the probationer has no notice or opportunity to be heard.
See Cook v. Commonwealth, 211 Va. 290, 292-93, 176 S.E.2d 815, 817-18 (1970). Ordinarily,
however, so long as a defendant receives actual notice of a proceeding, the defects in the form of
the notice are procedural in nature, and an “‘objection to a procedural defect must be timely
made if it is to avail an accused when attacking his conviction.’” Turner, 216 Va. at 670, 222
S.E.2d at 520 (quoting Snyder v. Commonwealth, 202 Va. 1009, 1014, 121 S.E.2d 452, 456
(1961)); cf. Nelson v. Warden, 262 Va. 276, 285, 552 S.E.2d 73, 77 (2001) (holding that a defect
in notice to parents did not render a juvenile proceeding void).1 A litigant who received actual
1
As a general proposition, in civil cases, defects in notice do not render those
proceedings void. See, e.g., Zedan v. Westheim, 60 Va. App. 556, 579-80, 729 S.E.2d 785, 797
(2012) (failure to provide notice of tendering a final order of divorce did not render the order
void); Hicks v. Mellis, 275 Va. 213, 219-20, 657 S.E.2d 142, 145-46 (2008) (a failure to notify a
party in interest that the trial court was reinstating an action under Code § 8.01-335(B) rendered
the order voidable rather than void ab initio). But see, e.g., Melanson v. Commonwealth, 261
Va. 178, 184, 539 S.E.2d 433, 435 (2001) (strict conformity with statutory notice is required for
-4-
notice of a hearing can take steps to protect his rights by, for example, objecting to the hearing or
by moving to set aside the proceeding.
We also note that a defendant on probation or under a suspended sentence stands on
different jurisdictional footing than other litigants. Such a defendant is already subject to the
court’s jurisdiction by virtue of his ongoing probation or his suspended sentence. See Reinemer
v. Commonwealth, 16 Va. App. 462, 464, 431 S.E.2d 68, 70 (1993) (stating that a trial court’s
order discharging a defendant from probation “discharged him from the [trial] court’s
jurisdiction”); Grant v. Commonwealth, 223 Va. 680, 686, 292 S.E.2d 348, 351 (1982) (stating
that a defendant who complies with the conditions of the suspension of his sentence may seek
“an order of complete discharge” from the trial court to clarify that he is no longer “subject to
[its] sentencing authority”).
Significantly here, the court found that appellant had actual notice of the proceeding.
We do not condone the probation officer’s decision to notify appellant verbally, one day before
the hearing, that he needed to appear before the court; however, appellant did receive actual
notice. Therefore, the defect in notice did not render the court’s August 28, 2012 order void.
Instead, any defect in notice merely rendered the order voidable. Under Rule 1:1, that order
became final within twenty-one days. Appellant took no steps, either at trial or on appeal, to
challenge this order. Accordingly, it became final, and appellant’s collateral attack is untimely.2
claims under the Virginia Tort Claims Act, which is in derogation of the Commonwealth’s
sovereign immunity).
2
Appellant also argues that Code § 19.2-358 specifies what notice is due in a situation
where a probationer has refused to pay costs. Verbal notice the day before the hearing does not
conform to Code § 19.2-358. Appellant did not rely on or cite to that statute at trial. Rule 5A:18
bars any reliance on its provisions on appeal.
-5-
II. APPELLANT MAY NOT COLLATERALLY ATTACK THE ORDER ENTERED ON AUGUST
28, 2012.
Appellant also argues that the court “erred by invoking its jurisdiction in reliance on the
mistaken conclusion that the court had retained authority to retroactively extend probation after
the probation and suspended sentence expired on June 28, 2012.” For the reasons detailed in
Mohamed, 56 Va. App. 95, 691 S.E.2d 513, we conclude that appellant’s collateral attack on the
order entered on August 28, 2012 is untimely. As we explained in Mohamed, lack of subject
matter jurisdiction is a defect that renders a proceeding void, but trial courts have subject matter
jurisdiction over matters of probation and revocation. Id. at 100, 691 S.E.2d at 515. Therefore,
the trial court had subject matter jurisdiction to review appellant’s probation. In contrast to a
claim that a trial court lacks subject matter jurisdiction, which may be raised at any time, a
challenge to a court’s lack of authority to exercise that subject matter jurisdiction must be timely
raised or it is waived. Id. at 101-02, 691 S.E.2d at 516. Appellant’s challenge is not timely and,
therefore, we will not entertain his collateral attack on an order that became final in 2012.
CONCLUSION
We affirm the judgment of the trial court.
Affirmed.
-6- | 01-03-2023 | 04-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2791755/ | Case: 14-10906 Date Filed: 04/07/2015 Page: 1 of 11
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-10906
________________________
D.C. Docket No. 2:11-cv-00215-MEF-TFM
PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE
COMPANY,
Plaintiff-Counter Defendant-Appellee,
versus
HOWARD SNIDER,
PAM SNIDER,
Defendants-Counter Defendants-
Cross Claimants-
Counter Claimants-Appellants,
JEFF BEALE HOMES,
JEFF BEALE,
Defendants-Counter Claimants-
Cross Defendants.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(April 7, 2015)
Case: 14-10906 Date Filed: 04/07/2015 Page: 2 of 11
Before MARCUS, JILL PRYOR and EBEL, * Circuit Judges.
PER CURIAM:
Dr. and Mrs. Howard Snider appeal the district court’s declaratory judgment
that insurer Pennsylvania National Mutual Casualty Insurance Company (“Penn
National”) has no duty to indemnify its insured, Jeff Beale, with respect to the
Sniders’ $700,000 judgment against him. After careful review and oral argument,
we affirm.
I.
The Sniders hired Beale, through his sole proprietorship Jeff Beale Homes
(collectively “Beale”), to build their home in Pike Road, Alabama. According to
the Sniders, Beale agreed to complete the construction in six to eight months for a
total price of $650,000, but the work did not proceed as the parties had planned.
After more than a year of work, the project was over budget and incomplete.
Shortly thereafter, Beale walked off the job and did not return, forcing the Sniders
to hire a new builder to complete the construction. When the Sniders finally
moved into the home, they discovered problems with Beale’s work.
*
Honorable David M. Ebel, United States Circuit Judge for the Tenth Circuit, sitting by
designation.
2
Case: 14-10906 Date Filed: 04/07/2015 Page: 3 of 11
The Sniders sued Beale in Alabama state court, asserting breach of contract
and breach of implied warranty claims. The Sniders pursued two theories of
recovery in the state court action. First, they claimed that Beale breached their oral
contract because, although the Sniders paid him the entire amount he was owed, he
failed to complete the construction on their home. Second, they claimed that Beale
breached their oral contract and an implied warranty under Alabama law because
the work he did perform was not done properly. Beale had a commercial general
liability policy (the “Policy”) through Penn National, and he informed the insurer
of the Sniders’ claims. Penn National provided Beale with a defense under a
reservation of rights.
The Sniders’ claims against Beale proceeded to trial in state court. At trial,
the Sniders sought damages for the following injuries: (1) mental anguish, (2)
emotional distress, (3) the cost of completing the work that Beale left unfinished
but for which he was paid, (4) the cost of repairing Beale’s faulty work, (5) the
cost of repairing property damage caused by water intrusion resulting from Beale’s
faulty work, and (6) diminution in value of the home. The Sniders sought a total of
$1.25 million in damages for the cost of completing the work Beale failed to
perform, repairing Beale’s faulty work and conditions created by Beale’s faulty
3
Case: 14-10906 Date Filed: 04/07/2015 Page: 4 of 11
work, and the diminution in value of their home, 1 as well as unspecified damages
for their mental anguish and emotional distress.
Ultimately, the jury awarded the Sniders $700,000. The jury’s verdict form
follows:
The verdict form reflects that the jury found in the Sniders’ favor on both their
breach of contract and implied warranty claims, 2 but the form does not indicate
what portion of the award was attributable to either claim. Although the jury
indicated that it was awarding damages for mental anguish and emotional distress,
the verdict form did not identify the amount of damages awarded for these injuries,
for which cause of action they were awarded, or whether the damages award
included compensation for any of the Sniders’ other injuries.
1
The Sniders sought $450,000 for the cost of completing work and repairs and $800,000
for the diminution in value.
2
The verdict form also indicates that the jury found in favor of the Sniders on their
“claims” for emotional distress and mental anguish. Emotional distress and mental anguish are
not causes of action but rather types of injury.
4
Case: 14-10906 Date Filed: 04/07/2015 Page: 5 of 11
While the Sniders’ lawsuit against Beale was still pending, Penn National
filed this action seeking a declaration that it had no duty indemnify Beale under the
Policy with respect to the Sniders’ claims. The Sniders brought a counterclaim
against Penn National and a crossclaim against Beale to recover the $700,000
judgment. Penn National and the Sniders each moved for summary judgment. The
district court granted Penn National’s motion, ruling that Penn National had no
duty to indemnify, and denied the Sniders’ motion. This is the Sniders’ appeal.
II.
We review a district court’s grant of summary judgment de novo, “viewing
all the evidence, and drawing all reasonable factual inferences, in favor of the
nonmoving party.” Stephens v. Mid-Continent Cas. Co., 749 F.3d 1318, 1321
(11th Cir. 2014). The interpretation of a provision in an insurance contract “is a
question of law, also reviewed de novo.” Id. Summary judgment is appropriate “if
the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The
parties agree that in this diversity action Alabama law governs our interpretation of
the Policy.
III.
The terms of the Policy set forth the scope of Penn National’s duty to
indemnify Beale. The Policy provides that Penn National will pay only “those
5
Case: 14-10906 Date Filed: 04/07/2015 Page: 6 of 11
sums that the insured becomes legally obligated to pay as damages because of
‘bodily injury’ or ‘property damage’ to which this insurance applies.” Policy at
§ I.A.1.a. 3 The Policy further limits coverage to those instances where the “‘bodily
injury’ or ‘property damage’ is caused by an ‘occurrence’ . . . .” Id. at § I.A.1.b.
Penn National argues that there is no coverage in this case because the
Sniders’ bodily injuries and property damage did not arise out of an occurrence.
The Policy defines an “occurrence” as “an accident, including continuous or
repeated exposure to substantially the same general harmful conditions.” Id. at §
V.13. The Supreme Court of Alabama has interpreted “accident” in the insurance
context to mean “[a]n unintended and unforeseen injurious occurrence; something
that does not occur in the usual course of events or that could [not] be reasonably
anticipated.” Hartford Cas. Ins. Co. v. Merchs. & Farmers Bank, 928 So. 2d 1006,
1011 (Ala. 2005) (internal quotation marks omitted). Put differently, an accident
refers to “something unforeseen, unexpected, or unusual.” Id. (internal quotation
marks omitted). When the insured “at all times act[s] in a deliberate and
purposeful manner,” his conduct does not constitute an accident or occurrence. Id.
at 1013 (internal quotation marks omitted).
As the parties seeking coverage under the Policy, the Sniders bear the
burden of proving that coverage exists. See Ala. Hosp. Ass’n Trust v. Mut.
3
Under an endorsement to the Policy, the definition of bodily injury includes mental
anguish. See Extended Coverage Endorsement General Liability § II.
6
Case: 14-10906 Date Filed: 04/07/2015 Page: 7 of 11
Assurance Soc’y of Ala., 538 So. 2d 1209, 1216 (Ala. 1989). Thus, they must show
that an accident caused the injuries for which they were awarded damages. At
trial, the Sniders advanced two independent theories of liability against Beale: (1)
he breached the contract by abandoning the job, and (2) he breached an implied
warranty in the contract because he performed faulty work. 4 We now consider
whether Beale’s conduct under each theory was intentional or accidental to
determine whether injuries arising out of the conduct are covered under the Policy.
The Policy plainly does not cover damages arising out of Beale abandoning
the job. The Sniders admit that in the state court trial they argued Beale breached
the contract by walking off the job and sought damages for this breach. Beale’s
abandonment of the job was a deliberate, purposeful act, not an accident, and
damages arising out of this conduct are not covered under the Policy. See Shane
Traylor Cabinetmaker, L.L.C. v. Am. Res. Ins. Co., 126 So. 3d 163, 170 (Ala.
2013) (holding that there was no occurrence when the claim arose not from the
contractor’s defective work but from, among other things, the contractor
abandoning the job).
This alone is sufficient to conclude that there is no coverage under the
Policy. We cannot discern from the verdict form the amount of damages the jury
4
Under Alabama law, there is an implied warranty that a contractor will “‘use reasonable
skill in fulfilling [his] contractual obligations.’” Blackmon v. Powell, 132 So. 3d 1, 5 (Ala. 2013)
(quoting Turner v. Westhampton Court, L.L.C., 903 So. 2d 82, 93 (Ala. 2004)).
7
Case: 14-10906 Date Filed: 04/07/2015 Page: 8 of 11
awarded the Sniders for their injuries caused by Beale’s abandonment of the job, as
opposed to injuries caused by Beale’s faulty work. 5 Alabama courts have held that
when (1) the injured party in the underlying action pursues two theories of liability,
(2) under one of the theories there is no coverage under the policy, and (3) the jury
returned a general verdict, then it is “impossible” to establish coverage under the
policy. Ala. Hosp. Ass’n Trust, 538 So. 2d at 1216.
The Sniders try to circumvent this problem by arguing that the verdict form
shows that the jury awarded them damages only for emotional distress and mental
anguish caused by Beale’s faulty work. 6 But the verdict form does not support the
Sniders’ argument. First, the verdict form indicates that the jury found in the
Sniders’ favor on the breach of contract claim, which would include the Sniders’
allegations that Beale breached the contract by walking off the job. Second, the
verdict form does not show that all of the damages the jury awarded were for
mental anguish or emotional distress. The verdict form shows, at most, that some
5
The parties could have used a special verdict form to answer such questions, but they
did not. See Ala. Hosp. Ass’n Trust, 538 So. 2d at 1216. During deliberations, the jury asked the
trial court whether it was necessary to allocate its award among the claims. Neither party
requested that the court instruct the jury to provide such an itemization.
6
Under Alabama law, a party can recover an award for mental anguish on a breach of
contract claim where “the contractual duty or obligation is so coupled with matters of mental
concern or solicitude, or with the feelings of the party to whom the duty is owed, that a breach of
that duty will necessarily or reasonably result in mental anguish or suffering.” B & M Homes,
Inc. v. Hogan, 376 So. 2d 667, 671 (Ala. 1979) (internal quotation marks omitted). Alabama law
has recognized that “contracts dealing with residences” fall into this special category. Id.
8
Case: 14-10906 Date Filed: 04/07/2015 Page: 9 of 11
unidentified portion of the $700,000 verdict was to compensate the Sniders for
their emotional distress and mental anguish.
In their briefs, the Sniders attempt to show that some of their injuries that
were the result of Beale’s faulty work were caused by accidental, not intentional,
conduct. Under Alabama law, when a contractor performs faulty work, generally
his conduct is not considered an accident. See Owners Ins. Co. v. Jim Carr
Homebuilder, LLC, No. 1120764, So. 3d , 2014 WL 1270629, at *6 (Ala.
Mar. 28, 2014). When the contractor’s faulty work creates a condition that in turn
damages property, however, the conduct is considered an accident under Alabama
law. See id. In the underlying trial, the Sniders sought damages for repairing
Beale’s faulty work, 7 which the Policy does not cover, and damages for repairing
conditions created by Beale’s faulty work, 8 which the Policy does cover. Even
accepting that the Policy does cover damages arising from conditions created by
faulty work, the Sniders still have not carried their burden of proof. They offer no
compelling explanation of how they can establish coverage given that they pursued
two different theories of liability at trial in the underlying action, the Policy does
not cover damages arising out of Beale abandoning the job, and the jury returned a
7
For example, the Sniders sought damages for the cost of replacing a floor that Beale did
not install properly.
8
For example, the Sniders sought damages for the cost of repairing water damage inside
the house that resulted from a condition created by Beale’s faulty work.
9
Case: 14-10906 Date Filed: 04/07/2015 Page: 10 of 11
general verdict that did not identify the amount of damages being awarded under
each theory.
The Sniders alternatively argue that there is coverage under the provision of
the Policy covering products-completed operation hazards (“PCOH”). They
contend that this provision of the Policy covers claims for bodily injury and
property damage even when the injury was not the result of an accident and thus
not caused by an occurrence. The Policy’s declaration page shows a $2 million
“Products-Completed Operations Aggregate Limit.” This limit “is the most [Penn
National] will pay under Coverage A for damages because of ‘bodily injury’ and
‘property damage’ included in the ‘products-completed operations hazard.’”
Policy at § III.3. The PCOH covers “all ‘bodily injury’ and ‘property damage’ . . .
arising out of ‘your product’ or ‘your work’” when the insured has completed its
work or abandoned the job. Id. at § V.16.a. The Supreme Court of Alabama has
explained that the purpose of PCOH coverage is to insure bodily injury or property
damage that occurs after the insured has completed work. Jim Carr, 2014 WL
1270629, at *7-*8.
The PCOH provision does not cover the Sniders’ injuries. The Policy
explains that the “Products-Completed Operations Aggregate Limit,” which
provides coverage for bodily injury or property damage included in the PCOH, is
“the most [Penn National] will pay under Coverage A.” Policy at § III.3.
10
Case: 14-10906 Date Filed: 04/07/2015 Page: 11 of 11
Coverage A, in turn, limits coverage to bodily injury and property damage “caused
by an ‘occurrence.’” Id. at § I.A.1.b. The Sniders point out that the Alabama
Supreme Court held in Jim Carr that there was coverage under the PCOH. But, in
Jim Carr, the homeowners’ injuries were caused by an occurrence. See 2014 WL
1270629, at *8. Nothing in Jim Carr supports the Sniders’ argument that the
PCOH covers injuries not caused by an occurrence. Because the Sniders cannot
show that the jury’s entire award was for damages caused by an occurrence, they
cannot show that there is coverage under the PCOH.
IV.
The district court correctly concluded that the Sniders cannot prove coverage
under the Policy. 9 Accordingly, we affirm the judgment of the district court.
AFFIRMED.
9
Penn National raises a number of other arguments that there is no coverage, but, having
concluded the Sniders’ claim is not covered, we need not address them.
11 | 01-03-2023 | 04-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2883685/ | In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-08-00089-CV
______________________________
IN RE:
EDWARD ELLIOTT BRYANT
Original Mandamus Proceeding
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Edward Elliott Bryant has filed a petition for writ of mandamus in which he asks this Court
to order the court reporter for the 208th Judicial District Court of Harris County, Texas, to provide
him with a complete reporter's record so that he can adequately raise a habeas corpus claim.
This Court has jurisdiction to issue a writ of mandamus against "a judge of a district or
county court in the court of appeals district." TEX . GOV 'T CODE ANN . § 22.221(b) (Vernon 2004).
We cannot address Bryant's petition for writ of mandamus for two reasons. First, Harris
County is not within our appellate district, and we have no mandamus authority (except in very
specific situations which have not been alleged to exist here) over entities outside our district. Harris
County is not within the territorial jurisdiction of this court. TEX . GOV 'T CODE ANN . § 22.201(g)
(Vernon Supp. 2008). Thus, we have no jurisdiction over the petition for writ of mandamus.
Second, we do not have mandamus authority over court reporters. As set out above, our
mandamus authority is provided by statute, and is limited to certain categories of judicial officials,
not including court reporters. Again, there are some limited exceptions to that general rule, but again,
they do not apply here. Even if we had jurisdiction to issue a writ of mandamus, we have no
authority in this situation to provide the requested relief.
2
The petition for writ of mandamus is denied.
Bailey C. Moseley
Justice
Date Submitted: August 18, 2008
Date Decided: August 19, 2008
3 | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2892586/ | NO. 07-03-0210-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
MARCH 25, 2005
______________________________
JIMMIE WILLIAMSON, ET AL., APPELLANTS
V.
BETTY COOK AND DENNIS COOK, APPELLEES
_________________________________
FROM THE DISTRICT COURT OF JASPER COUNTY;
NO. 21,314; HONORABLE JOE BOB GOLDEN, JUDGE
_______________________________
Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINION
Appellants Jimmie Williamson,
his wife Mary Williamson, and Gary Gatlin, trustee (collectively Williamson) challenge the trial court’s judgment setting aside two trustee’s deeds on private foreclosures dated June 1, 1999 and August 3, 1999, and awarding Williamson the sum of $125,000 and appellees Betty Cook and Dennis Cook $75,000 from $200,000 in fire insurance proceeds tendered to the clerk of the court. By points one, two, three, and four, Williamson contends the trial court erred in submitting questions
one, two, and three. By his remaining points, he contends 5) the evidence was factually insufficient to support the jury findings to all the points, 6) the trial court erred in refusing his requested questions 1 through 6; 7) there was no evidence to show that he did not demand any excessive amounts from the Cooks, 8) there was no evidence that he refused to accept the pay-off amount of $122,104.57 in April or May 1999, and 9) there was no evidence for the court to render judgment based upon the “fair” division of the $200,000 insurance proceeds. We affirm.
On February 17, 1995, the Cooks executed a promissory note in the amount of $117,000 payable to Jimmie Elwin Williamson and Mary Eilene Williamson in monthly installments with a final balloon payment. Payment of the note was secured by a vendor’s lien and deed of trust. When the Cooks were unable to make the payments, the parties agreed they would sign a new note for $115,835.66. However, the Cooks defaulted on the new note. After the posting of a notice of foreclosure and filing of bankruptcy by the Cooks, Williamson commenced efforts to collect the balance by private foreclosure or otherwise. During this phase, Dennis Cook converted his chapter 13 bankruptcy to a chapter 7 proceeding. On June 1, 1999, the trustee executed a deed upon private foreclosure conveying the undivided interest of Dennis Cook to Williamson. Then, on August 3, 1999, the trustee executed a deed upon private foreclosure conveying the undivided one-half interest in the property of Betty Cook to Williamson.
After the August 3 trustee’s sale, the Cooks filed an original petition to set aside the two trustee’s sales and sought a declaration that no default existed. Among other things, they alleged the parties had agreed the Cooks would be given time to obtain other financing and were not in default. Before Williamson filed his answer, the residence on the property was totally destroyed by a fire on October 17, 1999. Williamson answered by general denial but did not seek affirmative relief nor allege any defenses. After a question of arson was settled, the fire insurance company interplead $200,000 subject to judgment of the court.
(footnote: 1) Thereafter, neither party amended nor supplemented their pleadings to state claims for relief or address the appropriate disposition of the insurance proceeds.
After presentation of the evidence, the trial court denied Williamson’s six requested issues and submitted three questions to the jury.
(footnote: 2) The jury found (1) the amounts claimed by Williamson were excessive, (2) Williamson refused to accept a pay-off of $122,104.57 in April or May 1999, and (3) disbursement of $75,000 to Betty Cook and $125,000 to Williamson would be “the fair division” of the $200,000. By its judgment, the trial court set aside the trustee’s deeds of June 1, 1999 and August 3, 1999, and ordered that Williamson recover $125,000 plus accrued interest, and Betty Cook be awarded $75,000 plus accrued interest.
We first note the rules applicable to our review of this appeal. As a court of appeals, we may not reverse a trial court’s judgment in the absence of properly assigned error.
See
San Jacinto River Authority v. Duke, 783 S.W.2d 209, 210 (Tex. 1990). It is well settled that an appellate court should not decide a case on a theory different from that on which it was plead and tried. American Mut. Liability Ins. v. Parker, 144 Tex. 453, 191 S.W.2d 844, 848 (1945) (on reh’g); El Paso Environ. Systems v. Filtronics, 609 S.W.2d 810, 813 (Tex.Civ.App.--El Paso 1980, writ ref’d n.r.e.). Pleadings frame the issues for determination.
See
Murray v. O & A Express, Inc., 630 S.W.2d 633, 636 (Tex. 1982). Thus, we will consider the issues raised by written pleadings and in the context of the theory on which the case was tried.
Addressing Williamson’s issues in a logical rather than sequential order, we first consider points four and nine,
(footnote: 3) by which he asserts error in the submission of question three and point six, by which he asserts trial court error in denying his requested six issues.
(footnote: 4) Williamson suggests that question three should have been submitted as per his question six, to-wit: what sum of money is owed to Williamson by the Cooks on the note in question. We disagree.
Under Rules 277 and 278 of the Texas Rules of Civil Procedure, the trial court shall submit the questions to the jury upon broad form questions which are raised by the written pleadings and the evidence. Submission of questions is a matter within the discretion of the trial court and its discretion is subject only to the requirement that the questions submitted must (1) control the disposition of the case, (2) be raised by the pleadings and the evidence, and (3) properly submit the disputed issues for the jury’s determination.
See
Lee-Wright, Inc. v. Hall, 840 S.W.2d 572, 577 (Tex.App.--Houston [1
st
Dist.] 1992, no writ); Lesser v. Allums, 918 S.W.2d 81, 87 (Tex.App.--Beaumont 1996, no writ).
Because the amount owing on the promissory note was not raised by the written pleadings of either party, the trial court did not err in denying the six issues requested by Williamson. Dion v. Ford Motor Co., 804 S.W.2d 302, 310 (Tex.App.--Eastland 1991, writ denied). Williamson does not present any legal authority governing the allocation of insurance proceeds in this type situation. Moreover, in the absence of evidence to show the terms of the settlement agreement with the insurance company upon which the funds were tendered into court and the absence of pleadings stating the claims of the parties, we are unable to hold the trial court abused its discretion in submitting question three as submitted. Points of error four, six, and nine are overruled.
By point five, Williamson contends the trial court erred in entering judgment based upon the jury’s findings to special issues because the evidence is factually insufficient to support the jury’s findings to all of the issues submitted. Although the point was presented, it is not developed nor argued in the body of the brief. Accordingly, his contention is waived. Warehouse Partners v. Gardner, 910 S.W.2d 19, 26 (Tex.App.--Dallas 1995, writ denied); Howell v. T S Communications, Inc., 130 S.W.3 515, 518 (Tex.App.--Dallas 2004, no pet.). Point of error five is overruled.
By his remaining points one, two, three, seven, and eight, Williamson contends there was no evidence, or alternatively, the finding was against the great weight and preponderance of the evidence that he claimed excessive demands in connection with the private foreclosures sales in June and August 1999, or that he refused to accept the pay-off.
Williamson did not, by special exception or otherwise, challenge the sufficiency of the Cooks’ pleading to raise sufficient grounds, which according to substantive law, would be sufficient to authorize the trial court to set aside the trustee’s deeds.
(footnote: 5) Here, Williamson does not challenge the trial court’s action in setting aside the trustee’s deeds nor submit any legal authority to support any argument that the trial court erred in doing so. Accordingly, since question three was not conditionally submitted, the answers to questions one and two do not have any application to the division of the $200,000.
Moreover, before we may reverse a judgment and order a new trial we must find that the error complained of amounted to such a denial of Williamson’s rights as was reasonably calculated to cause and probably did cause the rendition of an improper judgment or prevented him from presenting the case on appeal. Tex. R. App. P. 44.1. In Dennis v. Hulse, 362 S.W.2d 308, 309 (Tex. 1962), the Court held that an appellant must show the error probably did cause the rendition of an improper judgment.
See also
Knight v. Hicks, 505 S.W.2d 638, 644 (Tex.App.--Amarillo 1974, writ re’fd n.r.e.); Aquamarine Associates v. Burton Shipyard, 645 S.W.2d 477, 482 (Tex.App.--Beaumont 1982),
aff’d
, 659 S.W.2d 820 (Tex. 1983). In Lorusso v. Members Mut. Ins. Co., 603 S.W.2d 818, 820 (Tex. 1980), the Court held that the harmless error rule applies to all errors in that it draws no distinction as to the type of errors involved in its requirement for reversal. Notwithstanding Rule 44.1 and the applicable cases, Williamson does not present a challenge to the trial court’s action in setting aside the trustee’s deeds or otherwise demonstrate that any alleged error was reversible. Accordingly, points one, two, three, seven, and eight are overruled.
Having overruled all of Williamson’s points, the judgment of the trial court is affirmed.
Per Curiam
Johnson, C.J., not participating.
FOOTNOTES
1:The parties do not provide any information regarding the settlement with the insurance company on the fire loss. Moreover, the record does not include the terms of the settlement between the parties and the insurance company or any pleadings, orders, or other information regarding the deposit of $200,000 into court or conflicting claims thereto.
2: Question One. Were the amounts being claimed by Williamson at the time of the foreclosure sales on June 1, 1999 and August 3, 1999 excessive?
Question Two. Did Williamson refuse to accept the pay-off amount of $122,104.57 in April or May of 1999?
Question Three. What is the fair division of the $200,000.00 insurance settlement money?
3:Issue nine is the same as issue four.
4:Six issues summarized as
1. Do you find that the Cooks were not in default?
2. and 3. Do you find that the Cooks were not in default of any obligation or covenant owed to Williamson at the time of the two foreclosures?
4. and 5. Did Williamson make an excessive demand on August 3, 1999 and May 1999?
6.What sum of money is owed to Williamson by the Cooks?
5:Because the record does not show that any exceptions were brought to the attention of the trial judge per Tex. R. Civ. P. 90, any defects in the pleadings were waived. | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2897146/ | NO. 07-08-0043-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JUNE 18, 2008
______________________________
BNSF RAILROAD COMPANY F/K/A THE BURLINGTON
NORTHERN AND SANTA FE RAILROAD COMPANY, APPELLANT
V.
HOMER âGENEâ HEATH, APPELLEE
_________________________________
FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;
NO. 91,285-A; HONORABLE HAL MINER, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
ON BNSFâS MOTION TO REMAND FOR NEW TRIAL
          The above captioned matter was tried to a jury in Potter County, Texas. At the
conclusion of the trial, the trial court entered a judgment for appellee, Homer âGeneâ Heath,
and overruled a motion for judgment notwithstanding the verdict and new trial filed by
appellant, BNSF Railroad Company. BNSF subsequently perfected its appeal and
requested the preparation of the reporterâs record. The request for preparation of the
reporterâs record included all pretrial matters, trial testimony, and post trial matters. Upon
receiving the request for the reporterâs record, it was discovered that the proceedings for
the first day of trial, May 21, 2007, had been lost due to the electronic disks having become
corrupted. Efforts at retrieving the data have proven unsuccessful. The loss of the first
dayâs proceedings is through no fault of BNSF. No other sources for recording of the trial
proceedings that day are available. The parties have been unable to reach an agreement
as to the exact content of the reporterâs record for the day in question. Accordingly,
BNSFâs motion to remand for new trial is granted, the judgment of the trial court is
reversed, and this case is remanded for a new trial. Tex. R. App. P. 34.6(f).
Â
                                                                           Per Curiam
Â
Â
62" Name="Light Grid"/>
NO. 07-10-0374-CR
Â
IN THE
COURT OF APPEALS
Â
FOR THE
SEVENTH DISTRICT OF TEXAS
Â
AT
AMARILLO
Â
PANEL E
Â
MAY 23, 2011
_____________________________
Â
Â
CHRISTOPHER
MCGEE,
Â
                                                                                        Appellant
v.
Â
THE STATE OF
TEXAS,Â
Â
                                                                                        Appellee
_____________________________
Â
FROM THE 46TH DISTRICT COURT OF WILBARGER COUNTY;
Â
NO. 11,416; HONORABLE DAN MIKE BIRD, PRESIDING
_____________________________
Â
Opinion
_____________________________
Â
Â
Before QUINN, C.J., CAMPBELL,
J., and BOYD, S.J.[1]
           Christopher McGee seeks to overturn
his conviction of aggravated sexual assault of a child by contending that 1)
the trial court erred in denying his Batson challenge, 2) the trial court erred
in overruling his motion to suppress his written statement, and 3) the evidence
is legally insufficient. We affirm the
judgment.
          Â
Background
           Appellant was charged with
penetrating the sexual organ of his girlfriendÂs five-year-old daughter with
his finger. The victim did not testify,
and the primary source of evidence against him came from his written admission
to committing the crime and his drawing that indicated how far he inserted his
finger into the childÂs vagina.
           Batson Challenge
           We first consider appellantÂs Batson challenge. The focus of that challenge lies upon the
StateÂs use of a peremptory challenge against an African-American venireman
named Shepherd. The latter was struck,
according to the prosecutor, because he was asleep during voir
dire. We overrule the issue. Â
           One levying a Batson[2] challenge must make a prima
facie showing of racial
discrimination. Williams
v. State, 301 S.W.3d
675, 688 (Tex. Crim. App. 2009), cert. denied, __ U.S. __, 130 S. Ct. 3411, 177
L. Ed. 2d 326 (2010). If that happens, the
burden then shifts to the State to offer a race-neutral explanation for the
strike. Id. Should such an explanation be proffered, then the burden
shifts back to the defendant to show the explanation was really a pretext for
discrimination. Id. And, in reviewing the trial courtÂs decision, we must allow
it to stand unless it is clearly erroneous.Â
Id.  Â
           In explaining his decision to
challenge the particular venireman, the prosecutor informed the trial court
that, Âwhen I called on him and asked him punishment or rehabilitation he was
startled and woken up [sic] before he answered the question, so Mr. Shepherd
was sleeping during my portion of the voir dire and thatÂs why I cut him.ÂÂ Â Appellant did not dispute that or question
the prosecutor.
          Sleeping
during voir dire is a race-neutral reason for using a
peremptory challenge. Moore
v. State, 265 S.W.3d 73,
82 (Tex. App.ÂHouston [1st Dist.] 2008, pet. dismÂd, improvidently
granted); Lamons v. State, 938 S.W.2d 774, 778 (Tex. App. Houston [14th
Dist.] 1997, pet. refÂd); Muhammad v. State, 911 S.W.2d 823, 825 (Tex. App.ÂTexarkana
1995, no pet.).  And, that the
prosecutor called out ShepherdÂs name twice to garner the veniremanÂs attention
while all other members answered the particular question after the prosecutor
called their name once lends support to the contention that Shepard may have
been sleeping. See
Roberson v. State, 866 S.W.2d
259, 261-62 (Tex. App.ÂFort Worth 1993, no pet.) (stating that when the State
strikes a juror on a basis that cannot be easily determined by a reviewing
court, that basis must be substantiated by something other than the
prosecutorÂs statement). Finally, we
note that appellant did not dispute the contention below. Therefore, we lack basis to conclude that the
trial courtÂs rejection of the Batson challenge was clearly erroneous. See Moore v. State, 265 S.W.3d at 82 (stating that the
court is in the best position to determine if the prosecutor was correct that
the juror was inattentive, and noting that the defendant did not dispute the
contention thereby resulting in the conclusion that the record supported
it).   Â
           Suppression of Evidence
           Next, appellant argued that the trial
court should have suppressed his written, inculpatory
statement and drawing because he was in custody, Âwas not properly warned (Mirandized), and coerced.Â
We overrule the issue.Â
 As to the matter of
involuntarily providing the confession and drawing, appellant merely concluded
that it was the product of coercion. No
substantive argument was offered to support his conclusion. This omission is fatal to the point since a
brief must contain a clear and concise argument for the contentions made. Tex. R. App. P. 38.1(i). Â
If none is provided, then the topic is inadequately briefed and,
therefore, waived.  Garcia
v. State, 887 S.W.2d
862, 876 (Tex. Crim. App. 1994), overruled on other grounds
by Hammock v. State, 46
S.W.3d 889 (Tex. Crim. App. 2001) (noting that when an issue is not supported
with explanation or argument, it was inadequately briefed).
As for the contention that appellant was not Âproperly warned
(Mirandized)Â before issuing his confession, we note
that the interview from which the confession and drawing arose began with
appellant signing a written document containing Miranda warnings. And, though to us the warnings memorialized
in the document conform to the admonishments itemized in art. 38.22 §2(a) of the Code of Criminal
Procedure, appellant failed to explain how they did not. Given this, we cannot say that the trial
court erred in admitting the confession and drawing because appellant was not
properly Mirandized.Â
Moreover, even if the warnings afforded appellant were
somehow deficient, the record contained sufficient factual basis upon which the
trial court could have reasonably found that appellant was not in custody at
the time. This is of import because Miranda
warnings need not be imparted unless the suspect is in custody. Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007). For instance, 1) appellant transported
himself to the police station to undergo a polygraph examination and
questioning, 2) questioning occurred in a rather large 15Â by 15Â room, 3) he
was never told he was under arrest, 4) he was told he was free to go at any
time, 5) no one threatened him, 6) no one restrained him, 7) those asking the
questions and administering the polygraph would have stopped if appellant
indicated that he wanted to leave, 8) appellant was at the station for
approximately 2.5 hours before confessing, 9) he had no marks on him to
indicate that he underwent any kind of physical abuse, 10) he not only was
asked if he wanted to take a break or use the bathroom but also was told that
he did not have to be there before the examination began, 11) he left the
station after the interview, and 12) nothing indicates that appellant ever
attempted to leave, stop the questioning, take a break, or the like.
A person is in custody if, under the circumstances, a
reasonable person would believe his freedom of movement was restrained to the
degree associated with a formal arrest. Estrada
v. State, 313 S.W.3d
274, 294 (Tex. Crim. App. 2010), cert. denied, __ U.S. __, 131 S.Ct.
905, 178 L. Ed. 2d 760 (2011); Dowthitt
v. State, 931 S.W.2d
244, 254 (Tex. Crim. App. 1996). Simply
because the questioning occurred at a police station, the suspect submitted to
a polygraph, or the suspect failed a polygraph does not render the questioning
custodial in nature. Dowthitt
v. State, 931 S.W.2d at 255. Nor did the aforementioned
litany of evidence and circumstances obligate the trial court to hold that 1)
appellant was physically deprived of his freedom in any significant way, 2) someone
told him he could not leave, 3) the officers created an environment that would
lead a reasonable person to believe his freedom of movement was significantly
restricted, or 4) there existed probable cause to arrest appellant and the
officers told him he was not free to leave.Â
Had any of those four scenarios arose then appellant would have been in
custody, id., but the evidence before us allowed the trial court legitimately to conclude
otherwise. See Estrada v. State, 313 S.W.3d at 294-95 (holding that
appellantÂs complaint on appeal that the environment was coercive did not
change the fact that he was not in custody when he voluntarily went to the
police station, was told several times he could leave, and did leave after the
interrogation).Â
           Legal Sufficiency
           Finally, appellant claims the
evidence was both legally and factually insufficient to support the
verdict. Given his confession and
drawing evincing his guilt, we have no choice but to overrule the issue. Â
           Accordingly, the judgment is
affirmed.
Â
                                                                                   Brian
Quinn
                                                                                   Chief
Justice
Â
Publish.
[1]John
T. Boyd, Senior Justice retired, sitting by assignment.
[2]Batson v.
Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90
L. Ed. 2d 69 (1986). | 01-03-2023 | 09-08-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3223153/ | The defendant (appellant) was convicted of murder in the second degree. The victim was George Bozeman. The only insistence for error in the brief of the able counsel for the appellant is that the motion for a new trial should have been granted; this upon the ground that "the preponderance of the evidence against the verdict is so decided that it would be wrong and unjust to let this verdict stand." The whole evidence has been carefully considered. There was abundant support in the evidence of the conclusion that the appellant shot and killed George Bozeman under circumstances excluding any possible excuse or justification for the act. There was evidence contradictory of this theory of unpalliated guilt; but it was the jury's function to decide the controverted issue. The jury and the trial judge saw and heard the witnesses. The issue's decision depended upon the credibility to be accorded the conflicting testimony submitted. It cannot be here affirmed that the court below erred in overruling the motion for new trial. Cobb v. Malone, 92 Ala. 630, 9 So. 738.
There is no error in the record.
Affirmed.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/7433295/ | Mandamus denied without opinion. | 01-03-2023 | 07-29-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/3006614/ | Case: 14-11016 Document: 00513215457 Page: 1 Date Filed: 10/01/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-11016
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
October 1, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
V.
JOHN FLATO,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:13-CR-358-1
Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
The Federal Public Defender appointed to represent John Flato has
moved for leave to withdraw and has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th
Cir. 2011). Flato has filed a response. We have reviewed counsel’s brief and
the relevant portions of the record reflected therein, as well as Flato’s response.
We concur with counsel’s assessment that the appeal presents no nonfrivolous
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 14-11016 Document: 00513215457 Page: 2 Date Filed: 10/01/2015
No. 14-11016
issue for appellate review. Accordingly, counsel’s motion for leave to withdraw
is GRANTED, counsel is excused from further responsibilities herein, and the
APPEAL IS DISMISSED. See 5TH CIR. R. 42.2.
2 | 01-03-2023 | 10-02-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1106900/ | 981 So.2d 1180 (2006)
V.H.
v.
P.S., R.S., AND A.B.
No. 2041021.
Supreme Court of Alabama.
January 23, 2006.
Decision of the Alabama Court of Civil Appeal without Opinion. Dismissed for lack of prosecution. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3047554/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-1579
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri.
Charlton Watson, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: September 4, 2009
Filed: September 11, 2009
___________
Before WOLLMAN, RILEY, and SMITH, Circuit Judges.
___________
PER CURIAM.
Charlton Watson pleaded guilty to possessing with intent to distribute cocaine
base (crack), in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii); and being a felon in
possession of firearms, in violation of 18 U.S.C. § 922(g)(1). The district court1 found
that Watson was a career offender under U.S.S.G. § 4B1.1, and sentenced him below
the applicable Guidelines range to 216 months in prison and 5 years of supervised
release. On appeal, his counsel has moved to withdraw and filed a brief under Anders
1
The Honorable Donald J. Stohr, United States District Judge for the Eastern
District of Missouri.
v. California, 386 U.S. 738 (1967), arguing that the sentence was unreasonable.
Watson has filed a pro se brief, also arguing that the sentence was unreasonable.
We review the imposition of sentences under a deferential abuse-of-discretion
standard, first ensuring that the district court committed no significant procedural
error, and then considering the substantive reasonableness of the sentence. See United
States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (citing Gall v. United
States, 128 S. Ct. 586, 597 (2007)). We find no abuse of discretion here. We note in
particular the district court’s consideration of 18 U.S.C. § 3553(a) and discussion of
the specific factors on which it relied to impose a sentence below the advisory
Guidelines range. See United States v. Stults, No. 08-3183, 2009 WL 2476695, at *13
(8th Cir. Aug. 14, 2009) (where record reflects district court made individualized
assessment based on facts presented, specifically addressing defendant’s proffered
information in its consideration of sentencing factors, sentence is not unreasonable).
After reviewing the record independently under Penson v. Ohio, 488 U.S. 75
(1988), we have found no nonfrivolous issues for appeal. Accordingly, the judgment
is affirmed. We also grant counsel’s motion to withdraw, and we deny Watson’s
motion for new counsel.
__________________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3047555/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARL MERTON IRONS, II,
Petitioner-Appellee,
No. 05-15275
U.S. ATTORNEY GENERAL,
Intervenor, D.C. No.
CV-04-00220-LKK
v.
OPINION
TOM L. CAREY, Warden,
Respondent-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, Senior District Judge, Presiding
Argued May 11, 2005
Submitted March 6, 2007
San Francisco, California
Filed March 6, 2007
Before: Stephen Reinhardt, John T. Noonan, and
Ferdinand F. Fernandez, Circuit Judges.
Opinion by Judge Reinhardt;
Concurrence by Judge Noonan;
Concurrence by Judge Reinhardt;
Concurrence by Judge Fernandez
2469
2472 IRONS v. CAREY
COUNSEL
Bill Lockyer, Attorney General of the State of California,
Robert R. Anderson, Chief Assistant Attorney General, Ste-
phen P. Acquisto, Supervising Deputy Attorney General, &
Pamela B. Hooley, Deputy Attorney General, for the
respondent-appellant.
IRONS v. CAREY 2473
Quin Denvir, Federal Defender, & Ann C. McClintock, Assis-
tant Federal Defender, for the petitioner-appellee.
OPINION
REINHARDT, Circuit Judge:
The state appeals the district court’s grant of habeas corpus
to Carl Merton Irons II. The district court granted relief after
finding that there was insufficient evidence in the record to
support the California Board of Prison Term’s decision to
deem Irons ineligible for parole in 2001. In light of the Cali-
fornia Supreme Court’s decision in In re Dannenberg, 34 Cal.
4th 1061 (Cal. 2005), and our decision in Sass v. California
Board of Prison Terms, 461 F.3d 1123 (9th Cir. 2006), both
decided after the district court issued its order in this case, we
reverse.
FACTUAL AND PROCEDURAL BACKGROUND
In 1985, Irons was convicted of second degree murder in
the death of his former housemate and sentenced to seventeen
years to life in prison. At the time of the offense, Irons was
living in the home of a couple, with another tenant, John
Nicholson. The couple suspected that Nicholson was dealing
drugs and was stealing from them. Irons shared their suspi-
cions. He confronted Nicholson and an angry argument
ensued in which Nicholson denied responsibility for the
thefts. Irons went to his room, retrieved his gun, and then
went to Nicholson’s room where he fired 12 rounds into Nich-
olson and, after Nicholson complained that he was in pain,
stabbed him twice in the back. He then wrapped Nicholson’s
body in a sleeping bag and left it in the room for the ten days
it took him to procure a car. Irons then took the body to the
coast, weighed it down, and disposed of it in the ocean.
2474 IRONS v. CAREY
When the police found the body, their investigation led
them to the house where Irons and the victim had lived.
Forensic analysis showed that Nicholson had died on the
premises, and the police decided to arrest the owner of the
house. Irons intervened, explained to the police that they had
the wrong person, and confessed to the killing. He was subse-
quently convicted of second degree murder and sentenced to
seventeen years to life in prison with the possibility of parole.
Prior to this conviction, Irons had no criminal record.
At the time of his 2001 parole hearing, Irons had been
incarcerated for sixteen years. Throughout his confinement,
his conduct has been exemplary. From 1988 to the present he
has maintained “Medium A” custody status, indicating that
prison officials see him as a low threat. He has not engaged
in further acts of violence, nor has he received any C.D.C.
128A written disciplinary charges.
Irons suffers no mental health problems, and has received
positive evaluations from the psychologists and counselors
who have examined and treated him. He has been extremely
industrious while in prison, maintaining average to excep-
tional job performance in every position he has occupied. He
has also received certificates of completion in several voca-
tional training programs, and has participated in numerous
self-help, substance abuse treatment, violence prevention and
stress management programs. Even members of the Board
have commented that Irons has “programmed in an exemplary
manner in all areas.”
Irons also has solid plans for the future. He will live with
his mother when he is released and he has a standing job offer
from a friend who owns a video production business. He also
has the support of Deputy District Attorney Stephen Wag-
staffe, the prosecutor assigned to Irons’ case from the outset.
These facts notwithstanding, the Board determined that
Irons was unsuitable for parole in 1994, 1996, 1998, 1999,
IRONS v. CAREY 2475
and 2001.1 The Board’s decision in 2001, the decision at issue
in this case, was based on three factors. “First and foremost
was the commitment offense itself.” The Board found that
Irons’ crime was “carried out in an especially cruel and cal-
lous manner.” It further noted his motivation for the killing
was trivial and that Irons was using drugs around the time of
the offense. Second, the Board stated that Irons “needs thera-
py” and recommended “continued participation in self-help
programming.” Finally, the presiding commissioner stated, “I
think you were asked by your counsel whether a situation like
this would happen again, whether you would kill somebody.
And I think you said, I don’t think so . . . [T]hat’s not a very
convincing reply.”
After filing an unsuccessful administrative appeal challeng-
ing the Board’s decision, Irons filed a state habeas petition in
Marin County Superior Court alleging that the Board’s 2001
unsuitability determination violated his due process rights.
The Superior Court denied the petition, finding that the
Board’s decision was supported by “some evidence” and thus
did not violate due process. Irons appealed, and the California
Court of Appeal and the California Supreme Court issued
summary denials.
He then filed a petition for writ of habeas corpus in federal
district court, and in January of 2005 the district court adopted
the magistrate judge’s findings and recommendations granting
the petition. The district court concluded that the state court
unreasonably applied clearly established Supreme Court pre-
cedent because the board’s decision was without evidentiary
support, and further held that the Board’s continued reliance
on Irons’ commitment offense and prior conduct to deem him
unsuitable for parole violated Irons’ right to due process.
1
The record also shows that he was deemed unsuitable for parole in
2002, 2003, and 2004. We, of course, express no view as to the constitu-
tionality of these denials or the applicability of the warning set forth in
Biggs v. Terhune, 334 F.3d 910 (9th Cir. 2003). See pp. 2480-81, infra.
2476 IRONS v. CAREY
On appeal, the state argues that the district court erred in
concluding that the Board’s 2001 decision was not supported
by “some evidence,” and that the district court failed to afford
the California state court decision upholding the Board’s
unsuitability determination the proper degree of deference
required under the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA).
STANDARD OF REVIEW
We review the district court’s decision to grant Irons’ peti-
tion for habeas corpus de novo. Leavitt v. Arave, 371 F.3d
663, 668 (9th Cir. 2004). Because Irons filed his petition after
the effective date of AEDPA, his petition for habeas corpus
may be granted only if he demonstrates that the state court
decision denying relief was “contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States.” 28
U.S.C. § 2254(d)(1).
DISCUSSION
[1] California Penal Code section 3041 vests Irons and all
other California prisoners whose sentences provide for the
possibility of parole with a constitutionally protected liberty
interest in the receipt of a parole release date, a liberty interest
that is protected by the procedural safeguards of the Due Pro-
cess Clause. Sass, 461 F.3d at 1128; Biggs, 334 F.3d at 914;
McQuillion v. Duncan, 306 F.3d 895, 903 (9th Cir. 2002); see
also Bd. of Pardons v. Allen, 482 U.S. 369, 377-78 (1987)
(quoting Greenholtz v. Inmates of Neb. Penal & Corr. Com-
plex, 442 U.S. 1, 12 (1979)). The Supreme Court has clearly
established that a parole board’s decision deprives a prisoner
of due process with respect to this interest if the board’s deci-
sion is not supported by “some evidence in the record,” Sass,
461 F.3d at 1128-29 (citing Superintendent v. Hill, 472 U.S.
445, 457 (1985)); see also Biggs, 334 F.3d at 915 (citing
McQuillion, 306 F.3d at 904), or is “otherwise arbitrary,” Hill,
IRONS v. CAREY 2477
472 U.S. at 457.2 When we assess whether a state parole
board’s suitability determination was supported by “some evi-
dence” in a habeas case, our analysis is framed by the statutes
and regulations governing parole suitability determinations in
the relevant state. See Biggs, 334 F.3d at 915. Accordingly,
here we must look to California law to determine the findings
that are necessary to deem a prisoner unsuitable for parole,
and then must review the record in order to determine whether
the state court decision holding that these findings were sup-
ported by “some evidence” in Irons’ case constituted an
unreasonable application of the “some evidence” principle
articulated in Hill, 472 U.S. at 454.
[2] Under California law, prisoners serving an indetermi-
nate sentence for second degree murder “may serve up to life
in prison, but [ ] become eligible for parole consideration after
serving minimum terms of confinement.” Dannenberg, 34
Cal. 4th at 1078. Although the Board must “normally set a
parole release date” before the minimum term has been
served, id., an inmate “ ‘shall be found unsuitable for parole
and denied parole if, in the judgment of the [Board,] the pris-
oner will pose an unreasonable risk of danger to society if
released from prison,’ ” id. at 1080 (quoting Cal. Code Regs.,
tit. 15 § 2402(a)).3
[3] The Board must determine whether a prisoner is pres-
ently too dangerous to be deemed suitable for parole based on
2
We need not address whether the Board’s determination was “other-
wise arbitrary” because that question is not implicated here.
3
Specifically, under California Penal Code section 3041(a), “one year
before the prisoner’s minimum eligible parole date, a Board panel shall
meet with the inmate, ‘shall normally set a parole release date,’ and shall
do so ‘in a manner that will provide uniform terms for offenses of similar
gravity and magnitude in respect to their threat to the public.’ ” Dannen-
berg, 34 Cal. 4th at 1078. However, a “determination of an individual
inmate’s suitability for parole under section 3041, subdivision (b) must
precede any effort to set a parole release date under the uniform-term prin-
ciples of section 3041, subdivision (a). Id. at 1079-80.
2478 IRONS v. CAREY
the “circumstances tending to show unsuitability” and the
“circumstances tending to show suitability” set forth in Cal.
Code. Regs., tit. 15 § 2402(c)-(d).4 A prisoner’s commitment
offense may constitute a circumstance tending to show that a
prisoner is presently too dangerous to be found suitable for
parole, but the denial of parole may be predicated on a prison-
er’s commitment offense only where the Board can “point to
factors beyond the minimum elements of the crime for which
the inmate was committed” that demonstrate the inmate will,
at the time of the suitability hearing, present a danger to soci-
ety if released. Dannenberg, 34 Cal. 4th at 1071. Factors
beyond the minimum elements of the crime include, inter
alia, that “[t]he offense was carried out in a dispassionate and
calculated manner,” that “[t]he offense was carried out in a
manner which demonstrates an exceptionally callous disre-
gard for human suffering,” and that “[t]he motive for the
crime is inexplicable or very trivial in relation to the offense.”
Cal. Code. Regs., tit. 15 § 2402(c)(1)(B), (D)-(E).
Here, the Board based its 2001 determination that Irons was
unsuitable for parole “first and foremost” on the fact that
“[t]he offense was carried out in an especially cruel and cal-
lous manner . . . which demonstrates a callous disregard for
human life.” It also noted that “the motive for this crime was
4
Under these regulations, the circumstances tending to show that a pris-
oner is unsuitable include: (1) the commitment offense, where the offense
was committed in “an especially heinous, atrocious or cruel manner”; (2)
the prisoner’s previous record of violence; (3) “a history of unstable or
tumultuous relationships with others”; (4) commission of “sadistic sexual
offenses”; (5) “a lengthy history of severe mental problems related to the
offense”; and (6) “serious misconduct in prison or jail.” Cal. Code. Regs.,
tit. 15 § 2402(c). Circumstances tending to show that a prisoner is suitable
for parole include: (1) the prisoner has no juvenile record; (2) the prisoner
has experienced reasonably stable relationships with others; (3) the pris-
oner has shown remorse; . . . (6) the prisoner lacks any significant history
of violent crime; . . . (8) the prisoner “has made realistic plans for release
or has developed marketable skills that can be put to use upon release”;
(9) “[i]nstitutional activities indicate an enhanced ability to function
within the law upon release.” Cal. Code. Regs., tit. 15 § 2402(d).
IRONS v. CAREY 2479
trivial in relation to the offense.” Although we agree with the
district court that the other bases for the Board’s unsuitability
determination — that Irons “needs therapy” and that when
asked whether he would kill again said, “I don’t think so” —
were wholly unsupported by “some evidence,” in light of
Dannenberg and Sass we are unable to conclude that the
Board’s findings regarding the nature of the commitment
offense were without some evidentiary support.
In Dannenberg the California Supreme Court addressed a
prisoner’s challenge to the parole Board’s decision to deem
him unsuitable for parole on the basis of his commitment
offense in spite of the fact that virtually all other relevant fac-
tors militated in favor of a finding of suitability. Dannenberg
had been sentenced to 15 years to life in prison for the second
degree murder of his wife in 1985. After a domestic argu-
ment, Dannenberg struck multiple blows to his wife’s head
with a pipe wrench and then pushed her into a tub of water
in which she drowned. 34 Cal. 4th at 1095. At his 1999 parole
hearing the Board concluded that Dannenberg presented a
danger to society if released and was thus unsuitable for
parole because the second degree murder he committed was
“ ‘especially callous and cruel,’ showed ‘an exceptionally cal-
lous disregard for human suffering,’ and was disproportionate
to the ‘trivial’ provocation” for the offense. 34 Cal. 4th at
1095. The California Supreme Court held that the Board’s
decision to deem Dannenberg unsuitable on this basis was
supported by “some evidence” because the Board “pointed to
circumstances of the inmate’s offense suggesting viciousness
beyond the minimum elements of second degree murder . . . .
Accordingly, [ ] the Board could use the murder committed
by Dannenberg as a basis to find him unsuitable, for reasons
of public safety, to receive a firm parole released date.” Id.
[4] Because we find that Irons’ crime was similarly cruel
or vicious, we cannot say that there was not “some evidence”
to support the Board’s determination that Irons was unsuitable
for parole under California law. Specifically, given that his
2480 IRONS v. CAREY
commitment offense, standing alone, is a sufficient basis for
deeming a petitioner unsuitable where, as here, there is some
evidence to support a finding that “the offense was carried out
in a manner which demonstrates an exceptionally callous dis-
regard for human suffering” and the “motive for the crime is
inexplicable or very trivial in relation to the offense,” Cal.
Code Regs., tit. 15 § 2402(c)(1)(D)-(E), we cannot say that
the state court unreasonably applied Hill’s “some evidence”
principle.
Irons argues that, even if there is “some evidence” to sup-
port a finding that he is unsuitable for parole under the appli-
cable California regulations, the Board’s reliance on an
immutable factor to deny him parole, namely his commitment
offense, nonetheless violated due process. In support of this
argument, he cites our decision in Biggs, 334 F.3d 910. In
Biggs, we affirmed the district court’s denial of a prisoner’s
petition for habeas corpus challenging the Board’s determina-
tion that he was unsuitable for parole on the basis of his com-
mitment offense. 334 F.3d at 916. Although we held that the
Board’s decision was supported by “some evidence” because
“[t]he murder of which Biggs was convicted involved killing
a witness in a manner which exhibited callous disregard for
life,” we made clear that “[a] continued reliance in the future
on an unchanging factor, the circumstance of the offense and
conduct prior to imprisonment, runs contrary to the rehabilita-
tive goals espoused by the prison system and could result in
a due process violation.” Id. at 916-17. Specifically, we held
that a
parole board’s sole . . . reliance on the gravity of the
offense and conduct prior to imprisonment to justify
denial of parole can be initially justified as fulfilling
the requirements set forth by state law. Over time,
however, should Biggs continue to demonstrate
exemplary behavior and evidence of rehabilitation,
denying him a parole date simply because of the
nature of Biggs’ offense and prior conduct would
IRONS v. CAREY 2481
raise serious questions involving his liberty interest
in parole.
Id. at 916.
Subsequently, in Sass, we held that denying parole to an
individual in reliance on his offense of commitment did not
violate due process. 461 F.3d at 1129. Although we acknowl-
edged that Biggs represents the law of this circuit and specifi-
cally noted that “continued reliance . . . [on] the offense and
on conduct prior to imprisonment . . . could result in a due
process violation,’ ” id., we nonetheless held that the Board’s
reliance on the “gravity” of the second degree murder of
which Sass was convicted, in combination with prior inci-
dents of unlawful conduct, provided a sufficient basis for the
Board to deem Sass unsuitable for parole. Because the murder
Sass committed was less callous and cruel than the one com-
mitted by Irons, and because Sass was likewise denied parole
in spite of exemplary conduct in prison and evidence of reha-
bilitation, our decision in Sass precludes us from accepting
Iron’s due process argument or otherwise affirming the dis-
trict court’s grant of relief.
[5] We note that in all the cases in which we have held that
a parole board’s decision to deem a prisoner unsuitable for
parole solely on the basis of his commitment offense com-
ports with due process, the decision was made before the
inmate had served the minimum number of years required by
his sentence. Specifically, in Biggs, Sass, and here, the peti-
tioners had not served the minimum number of years to which
they had been sentenced at the time of the challenged parole
denial by the Board. Biggs, 334 F.3d at 912; Sass, 461 F.3d
1125. All we held in those cases and all we hold today, there-
fore, is that, given the particular circumstances of the offenses
in these cases, due process was not violated when these pris-
oners were deemed unsuitable for parole prior to the expira-
tion of their minimum terms.
2482 IRONS v. CAREY
Furthermore, we note that in Sass and in the case before us
there was substantial evidence in the record demonstrating
rehabilitation. In both cases, the California Board of Prison
Terms appeared to give little or no weight to this evidence in
reaching its conclusion that Sass and Irons presently consti-
tuted a danger to society and thus were unsuitable for parole.
We hope that the Board will come to recognize that in some
cases, indefinite detention based solely on an inmate’s com-
mitment offense, regardless of the extent of his rehabilitation,
will at some point violate due process, given the liberty inter-
est in parole that flows from the relevant California statutes.
Biggs, 334 F.3d at 917.5
The district court’s order granting Irons’ petition for habeas
corpus is REVERSED.
NOONAN, Circuit Judge, concurring:
Proper resolution of this case, on its face involving the fate
of a single individual, involves the clash of two constitutional
principles of importance to every inhabitant of our country:
Congress has the power to determine the jurisdiction of all
federal courts.
5
Although we requested and received briefing on the constitutionality of
the provision of AEDPA that directs federal courts to grant habeas relief
to state petitioners only when the state court decision denying relief was
“contrary to, or involved an unreasonable application, of clearly estab-
lished Federal law, as determined by the Supreme Court of the United
States,” 28 U.S.C. 2254(d)(1), we are now persuaded that Duhaime v.
Ducharme, 200 F.3d 597 (9th Cir. 2000), answers that question, correctly
or not, for the court. A three-judge panel of this court is without authority
to overrule a holding of an earlier panel. Miller v. Gammie, 335 F.3d 889,
899 (9th Cir. 2003) (en banc). Only an en banc court has the authority to
do so. Id.
IRONS v. CAREY 2483
Congress does not have the power to determine how a fed-
eral court shall decide a case.
An easy solution of the clash is to say that the greater
power includes the lesser. If Congress can determine jurisdic-
tion and so take away any judicial supervision of the subject,
a fortiori Congress can specify what materials the courts may
use in deciding the case. This reasoning is of a mathematical
character. It has the precision and the force of Euclidean
geometry. In addition, it has a pragmatic appeal. Why force
Congress to use its radical power to remove jurisdiction, if the
purposes of Congress will be served by Congress directing the
process of decision?
This line of argument has an undoubted appeal. It is none-
theless mistaken. Euclidean logic does not dominate a judge’s
careful consideration of all the aspects of matters that are far
from linear. A simple example: The power to kill is greater
than the power to torture. The state may kill individuals. It
may not torture them. The pragmatic argument that Congress
could remove all jurisdiction may be met pragmatically: the
people would not put up with legislative abolition of such
sweeping character, any more than the people would say, “If
you can’t torture them, kill them.”
More fundamentally, the Euclidean line of argumentation
advanced above is based on a profound misunderstanding of
the judicial power and the role that judges, uncontrolled in
their reasoning by the legislature, perform to make it work.
Legislatures exist to make laws. Courts exist to decide cases.
The separation of these functions is part of our democratic
system of government. To allow the legislature to decide a
case is to deny the separation. To allow the legislature to tell
a court how a case should be decided is worse. It allows the
legislature to mask itself under judicial robes. It puts forward
as the judgment of a court what in actuality is the judgment
of the legislature. Impermissibly it mixes the two branches. It
does so to the great detriment of the judicial branch which is
2484 IRONS v. CAREY
made to act as if it were performing its judicial task while it
has had its ability to perform this task removed.
It may be said that Congress has the power to approve or
disapprove the Federal Rules of Procedure, and these rules
play a part in the decision of a case. It may be further argued
that Congress can determine the number of judges, where they
shall sit, how many assistants they may have, and what
appeals may be taken, and that all these determinations have
an impact on how a particular case will be decided.
True as these observations are, they do not go to the heart
of the matter. The number, venue, and assistance given the
judges point to no particular outcome in the decision of a
case, nor does the path provided for appeal. The Federal
Rules, formulated by judges, operate impartially in all cases.
They preordain a decision in none. Even more importantly,
they do not determine the law the judges must apply.
Congress can enact legislation with an effect on the future
of litigation in a particular case, e.g. by removing the statutory
ground for an injunction restricting future conduct. Mount
Graham Coalition v. Thomas, 89 F.3d 554 (9th Cir. 1996).
Congressional alteration of a statute bearing on future conduct
does not usurp the judicial function.
AEDPA specifies that an application for a writ of habeas
corpus “shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings
unless the adjudication of the claim (1) resulted in a decision
that was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the
Supreme Court of the United States . . . .” 28 U.S.C.
§ 2254(d).
Concurring in Williams v. Taylor, 520 U.S. 362, 412
(2000), Justice O’Connor glossed “clearly established” to
mean a holding by the Supreme Court, not a dictum. Justice
IRONS v. CAREY 2485
O’Connor’s concurrence was adopted by a majority of the
Court. Her gloss on “clearly established” was itself dictum
because it was not necessary to the decision of the case. Wil-
liams, 529 U.S. at 413 (O’Connor, J., concurring). It is a dic-
tum that has banished dicta from the grounds for granting
habeas corpus. It is a dictum necessarily narrowing the normal
way in which decisions of the highest court are read and
applied.
AEDPA does operate over the whole class of cases of
habeas corpus. It does not require a result in any particular
case. What it does do is to strike at the center of the judge’s
process of reasoning. It shuts the judge off from the judge’s
normal sources of law and curbs that use of analogy which is
the way the mind of a judge works. In our system of law
where precedent prevails and is developed, AEDPA denies
the judge the use of circuit precedent, denies development of
Supreme Court and circuit precedent, denies the deference
due the penumbra and emanations of precedent, and even
denies the courts the power to follow the law as now deter-
mined by the Supreme Court — the precedent to be applied
must have been in existence at the earlier moment when a
state decision occurred. A more blinkered concept of law can-
not be imagined — law, particularly constitutional law — is
treated as what once was the law. The development of doc-
trine is despised. That despisal is a direct legislative interfer-
ence in the independence of the judiciary.
It could be said that the ban on using Supreme Court deci-
sions issued later than the relevant state court determination
is a ban on the retroactivity of such decisions; and the
Supreme Court has more than once announced constitutional
decisions that are good for the future but cannot be read back
into the past. See, e.g., Linkletter v. Walker, 381 U.S. 618
(1965). True as that is, for the Supreme Court to choose not
to make its decisions retroactive is not the same as Congress
choosing to do it. The latter action is an interference with a
2486 IRONS v. CAREY
prerogative that goes with wise judging. Whether to judge
only for the future is for the judge to decide.
It might equally be asserted that the exclusion of a circuit
court’s precedents from consideration by the circuit is simply
a limitation on the jurisdiction of circuit courts. So it might be
said, but far from accurately. AEDPA does not address juris-
diction: it addresses the materials for judging. It deprives a
whole class of cases of their normal value as governing
authority for the circuit which has decided them.
Federal judges have taken an oath to uphold the Constitu-
tion of the United States. That oath has always been under-
stood to mean the Constitution as it is interpreted by the
courts. It is, of course, a grade school fiction that the Constitu-
tion does not change. It changes constantly: by constitutional
amendment, by decisions of the Supreme Court, and by the
invention of such things as the airplane, automobile, and
internet. For a judge to be frustrated in following the most
recent decision of the Supreme Court is perilously close to
forcing the judge to violate his oath to uphold the Constitution
as it presently is understood.
Sometimes a lawyer or even a judge will say, If this rule
is upheld, you can expect even worse to follow — a variant
of the biblical expression, “If that is what they do in the green
wood, what will they do in the dry?” It is unnecessary to
engage in such speculation as to AEDPA. It already appears
to accomplish a sizeable shrinkage of judicial independence.
Can the constitutionality of AEDPA be sustained? Our cir-
cuit has so ruled. Duhaime v. DuCharme, 200 F.3d 597, 601
(9th Cir. 1999). I am bound by this decision. Moreover, the
Supreme Court has upheld the application of AEDPA in a
multitude of cases, tacitly assuming its constitutionality. Yet
if I cannot depart from the law of the circuit, I may still ask
the question as to constitutionality in the light of governing
decisions by the Supreme Court.
IRONS v. CAREY 2487
As every law school student knows, Marbury v. Madison,
5 U.S. 137, 1 Cranch 137 (1803), held unconstitutional an Act
of Congress that attempted to confer jurisdiction on the
Supreme Court. Writing for the unanimous court, Chief Jus-
tice Marshall declared:
The judicial power of the United States is
extended to all cases arising under the constitution.
Could it be the intention of those who gave this
power, to say that, in using it, the constitution should
not be looked into? That a case arising under the
constitution should be decided without examining
the instrument under which it arises?
This is too extravagant to be maintained.
In some cases then, the constitution must be
looked into by the judges. And if they can open it at
all, what part of it are they forbidden to read, or to
obey?
....
Why does a judge swear to discharge his duties
agreeably to the constitution of the United States, if
that constitution forms no rule for his government?
if it is closed upon him, and cannot be inspected by
him?
If such be the real state of things, this is worse
than solemn mockery. To prescribe, or to take this
oath, becomes equally a crime.
Marbury, 5 U.S. at 178-80.
These general and fundamental propositions were estab-
lished near the beginning of our country. They were set out
2488 IRONS v. CAREY
in a case involving congressional meddling with the constitu-
tion’s limitations on jurisdiction. They unarguably govern
congressional efforts to prescribe how a court shall decide a
case.
In a case foundational in vindicating the power of the
Supreme Court to review and reverse the judgment of the
highest court of a State, large though this impairment is of the
sovereignty of the State, Justice Story wrote:
If, then, it is a duty of congress to vest the judicial
power of the United States, it is a duty to vest the
whole judicial power. The language, if imperative as
to one part, is imperative as to all. If it were other-
wise, this anomaly would exist, that congress might
successively refuse to vest the jurisdiction in any one
class of cases enumerated in the constitution, and
thereby defeat the jurisdiction as to all; for the con-
stitution has not singled out any class on which con-
gress are bound to act in preference to others.
....
[E]ven admitting that the language of the constitu-
tion is not mandatory, and that congress may consti-
tutionally omit to vest the judicial power in courts of
the United States, it cannot be denied that when it is
vested, it may be exercised to the utmost constitu-
tional extent.
Martin v. Hunter’s Lessee, 14 U.S. 304, 330, 337 (1816).
In legislation reflecting the passions of the Civil War, Con-
gress passed a law repudiating the Supreme Court’s interpre-
tation of a statute governing the return to its owner of
property seized by Union forces during the war. The Supreme
Court treated the attempt to curtail its jurisdiction as an
attempt to control its decisions:
IRONS v. CAREY 2489
The court is required to ascertain the existence of
certain facts and thereupon to declare that its juris-
diction on appeal has ceased, by dismissing the bill.
What is this but to prescribe a rule for the decision
of a cause in a particular way? . . . We are directed
to dismiss the appeal, if we find that the judgment
must be affirmed, because of a pardon granted to the
intestate of the claimants. Can we do so without
allowing one party to the controversy to decide it in
its own favor? Can we do so without allowing that
the legislature may prescribe rules of decision to the
Judicial Department of the government in cases
pending before it?
We think not . . . .
United States v. Klein, 80 U.S. 128, 146 (1872).
As recently as 1995, the Supreme Court held that a section
of the Securities Exchange Act, retroactively directing federal
courts to reopen final federal judgments, was invalid:
Congress has exceeded its authority by requiring the
federal courts to exercise “the judicial power of the
United States,” U.S. Const., Art. III, § 1, in a manner
repugnant to the text, structure, and traditions of
Article III.
....
. . . Article III establishes a “judicial department”
with the “province and duty . . . to say what the law
is” in particular cases and controversies. Marbury v.
Madison, 5 U.S. 137, 1 Cranch 137, 177, 2 L. Ed. 60
(1803). The record of history shows that the Framers
crafted this charter of the judicial department with an
expressed understanding that it gives the Federal
Judiciary the power, not merely to rule on cases, but
2490 IRONS v. CAREY
to decide them, subject to review only by superior
courts in the Article III hierarchy — with an under-
standing, in short, that “a judgment conclusively
resolves the case” because “a ‘judicial Power’ is one
to render dispositive judgments.” Easterbrook, Presi-
dential Review, 40 Case W. Res. L. Rev. 905, 926
(1990).
Plaut v. Spendthrift Farm, 514 U.S. 211, 217-219 (1995)
(emphasis in original).
Almost two centuries after Marbury, Chief Justice Mar-
shall’s reasoning was once more applied to invalidate an Act
of Congress that determined what acts violated the religious
freedom guaranteed by the First Amendment. Congress had
undertaken to enlarge the scope of this freedom beyond the
limits set by the Supreme Court. This legislative effort was
rebuffed:
The power to interpret the Constitution in a case or
controversy remains in the Judiciary.
....
If Congress could define its own powers by alter-
ing the Fourteenth Amendment’s meaning, no longer
would the Constitution be “superior paramount law,
unchangeable by ordinary means.” It would be “on
a level with ordinary legislative acts, and, like other
acts, . . . alterable when the legislature shall please
to alter it.” Marbury v. Madison, 1 Cranch at 177.
Under this approach, it is difficult to conceive of a
principle that would limit congressional power. See
Van Alstyne, The Failure of the Religious Freedom
Restoration Act under Section 5 of the Fourteenth
Amendment, 46 Duke L. J. 291, 292-303 (1996).
Shifting legislative majorities could change the Con-
IRONS v. CAREY 2491
stitution and effectively circumvent the difficult and
detailed amendment process contained in Article V.
....
Our national experience teaches that the Constitu-
tion is preserved best when each part of the govern-
ment respects both the Constitution and the proper
actions and determinations of the other branches.
When the Court has interpreted the Constitution, it
has acted within the province of the Judicial Branch,
which embraces the duty to say what the law is.
Marbury v. Madison, 1 Cranch at 177.
City of Boerne v. Flores, 521 U.S. 507, 524, 529, 535-36
(1997).
With these precedents before my eyes, whatever doubts
they raise, whatever answer they suggest, I am bound by con-
trolling case law and so concur.
REINHARDT, Circuit Judge, concurring specially:
I fully join in Judge Noonan’s sagacious concurrence.
Would that it were the law of the land. I add only a couple of
thoughts.
After affording federal courts the power to issue writs of
habeas corpus in state cases, Congress tells us in AEDPA that
we may not grant relief to citizens who are being held in
prison in violation of their constitutional rights unless the con-
stitutional error that led to their unlawful conviction or sen-
tence is one that could not have been made by a reasonable
jurist. Whether it was reasonable for a state court to misappre-
hend the dictates of the Constitution in a particular case
hardly seems relevant to a citizen’s right not to be imprisoned
2492 IRONS v. CAREY
in violation of the fundamental liberties he is granted by the
document that governs our societal structure. Nor is authoriz-
ing jurists to determine that a citizen’s detention is unlawful,
but that he must remain incarcerated because a magistrate’s
error is understandable, consistent with our duty as jurists to
enforce the laws and protect the rights of our citizens against
arbitrary state action.
Having granted the courts the authority to review state con-
victions under our habeas powers, it seems to me inconsistent
with our fundamental obligations as judges to require us,
except in unusual or exceptional circumstances, to rule for the
state regardless of whether it violated the Constitution. Such
a mandate appears to me to tell us how to decide a case. That,
for the reasons Judge Noonan so well expresses, Congress
simply may not do.
FERNANDEZ, Circuit Judge, concurring:
I concur in Judge Reinhardt’s opinion. I write separately for
two reasons.
First, I am not satisfied that there was no reason to continue
to hold Irons in prison other than the circumstances of his cal-
lously senseless murder of another person for trivial reasons.
While his answer to whether he still had the rage that led him
to kill someone1 can easily be read in an innocuous manner,
1
The testimony went this way, in part:
Attorney Schmidt [Irons’ attorney]: You gave the impression,
in response to one of the questions, almost that if it wasn’t Mr.
Nicholson [the victim], that it might have been somebody else
....
Inmate Irons: Looking back on it, after the fact, I — now, I
guess that those two questions relate to each other. Looking back,
I realize that I was responsible. And in that sense, it could have
IRONS v. CAREY 2493
it need not be, and the Commission could interpret it to mean
that he might. At any rate, I see nothing wrong with being
very, very cautious about releasing a person from prison and
onto society when he has committed the kind of crime that
Irons committed and has done it as flagitiously as he did it.
The Board has a right (nay, an obligation) to be exceedingly
cautious about setting him free.
Second, Judge Noonan has issued a concurring opinion in
which he decries the fact that we (and, probably, the United
States Supreme Court) have deemed the AEDPA to be consti-
tutional. I do not join that, and its mere filing would elicit no
response from me but for the fact that Judge Reinhardt has
concurred in the concurrence. Because that means that two
members of the panel have joined that opinion, it might be
seen to indicate that the panel is speaking for the court and
that the court is, therefore, attacking itself. It might be thought
that we have found a new way to create an umbrageous, or
stealth, conflict in our jurisprudence, which district courts and
attorneys had better take into account. That, I know, is not the
intention of my colleagues, who have carefully crafted the
concurring opinion to indicate that, at least at this point, they
merely wish to express their strongly-held views about the
strictures of the AEDPA, without creating a conflict in the
law of this circuit.
been somebody else. I mean, I don’t mean I was going to kill
somebody at random, but the circumstances — some set of cir-
cumstances that led me to that rage, I was primed for it. I was —
I had let myself become that person who could kill and it could
have been somebody else . . . .
Attorney Schmidt: Do you have any of that rage now?
Inmate Irons: I don’t think so. I try to make a real effort to
examine my motives, to look inside of myself . . . . I — I think
I’ve dealt with most of these issues. If they arise in some other
way, I’ll look for the appropriate help.
2494 IRONS v. CAREY
Thus, I respectfully concur in Judge Reinhardt’s opinion
only. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2960751/ | COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
NOTICE OF ORDER ON MOTION
Cause number: 01-15-00775-CV
Style: Adriene Sibley
v. Seminole Pipeline Company, LLC
Date motion filed*: September 14, 2015
Type of motion: Motion to correct the names of the parties to the appeal
Party filing motion: Appellant, Adriene Sibley
Document to be filed: Motion to Correct
If motion to extend time:
Deadline to file document: n/a
Number of previous extensions granted: n/a
Length of extension sought: n/a
Ordered that motion is:
Granted
If document is to be filed, document due: n/a
The Clerk is instructed to file the document as of the date of this order
Absent extraordinary circumstances, the Court will not grant additional motions to extend
time
Denied
Dismissed (e.g., want of jurisdiction, moot)
Enterprise Products Operating, LLC, First Call Field Service Corp., and TDW Services are hereby
added to this court’s records as appellees in this appeal. It is so ORDERED.
Judge's signature: /s/ Michael Massengale
Justice Michael Massengale
Acting individually
Date: September 17, 2015
November 7, 2008 Revision | 01-03-2023 | 09-18-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/4005953/ | This suit is to annul the marriage between plaintiff and defendant, occurring on August 14, 1922, as distinguished from divorce, and upon grounds other than those specifically mentioned in section I of chapter 64 of the Code, the jurisdiction and power thereby invoked being not that conferred by the statute, but the inherent jurisdiction and power of a court of equity with respect to all civil contracts, voidable upon any ground cognizable by such courts. That such inherent power and jurisdiction exists is settled law in this state and elsewhere, and has been here declared and applied in at least two cases of this character. Crouch v. Wartenburg, 86 W. Va. 664; and same case on final hearing, 91 W. Va. 91.
In accordance with the rules and principles affirmed in these cases and those cited from other states, the bill in this case, as grounds for the relief prayed for, alleges that plaintiff is and was at the time of said marriage just past the age of nineteen years, residing with his parents at Fairmont, West Virginia, but then and for some time prior thereto, had been attending the summer school of the West Virginia University, *Page 231
in the city of Morgantown, the marriage ceremony having been performed by a minister of the Methodist Episcopal Church in said city, designated as the student minister of said church; that the defendant then resided with her parents in said city of Morgantown, and was also an infant under the age of twenty-one years, namely, of the age of twenty years, and that the consent of the parents of neither of the parties had been obtained.
That while a marriage license was procured by him and defendant, and a ceremony was performed by said minister and a marriage certificate issued to them, a copy of, which was exhibited with the bill, nevertheless, as alleged in the fourth paragraph thereof, the fact is that it was not the intention of either plaintiff or defendant, at the time said marriage ceremony was performed, to enter into a serious, valid and binding contract or status of marriage, but on the contrary that said ceremony was not to have any effect, and that the responses by them and each of them in said ceremony were to impose no matrimonial duties or obligations, or confer any matrimonial duties or obligations, or rights upon either of the parties; that it was then understood and agreed between them that the relation of husband and wife was not by said ceremony to be assumed, undertaken or contracted for; and that the marriage status should not thereby be created, and that there should be no consummation of the marriage.
And as showing the circumstances of said marriage, the bill alleges that said ceremony had its inception in a jest or joke and grew out of the excitement and exuberance of spirits attendant upon an automobile party in which plaintiff and defendant participated with several other intimate friends, immediately preceding the ceremony; that plaintiff had at no time any wish, desire or intention to become the husband of the defendant, nor had he any such wish, desire or intention since said ceremony was performed; and moreover, the bill further alleges that the defendant did not then have any wish, desire or intention to become the wife of the plaintiff, nor has she had any such wish, desire or intention since said ceremony was performed. *Page 232
And the bill further alleges that on the afternoon preceding the ceremony, and while on their automobile ride, and while passing an old and abandoned farm house along the road, plaintiff observing the house, but purely by way of jest, suggested to defendant that they return to town, get married and go back and live in the abandoned house; that while they had been acquaintances and friends for some time, yet neither had paid court or serious attentions to the other, and that what was said on that occasion was said in the hearing of all the members of the party, and was meant by him and regarded by all as a joke, and passed off as such; that the party proceeded on their way, and after a time came back to Morgantown and went to defendant's home, where they all danced and enjoyed themselves in that way for a time, and the suggestion of marriage was completely forgotten; that they later went down the street, and some one of the party, in a spirit of banter and jest again brought up the subject and demanded that they carry out the joke, and that plaintiff and defendant joining in the spirit thereof, with their young friends proceeded to obtain a marriage license and a ring, and in the highest of spirits and with great fun and laughter proceeded to the church, where the ceremony was performed; that during the whole of the ceremony the plaintiff considered the whole thing a huge joke, and that the defendant so considered it, winking at one of the members of the party while the ceremony was being performed, and otherwise treating the occasion as a matter of fun, as did their friends; that plaintiff had no idea or belief that the ceremony so performed would be binding upon him, nor did defendant in any sense believe it binding upon her; and that neither of them joined in said ceremony in earnest, but considered it wholly as a jest or joke.
And finally, to show the character of said marriage, the bill alleges that immediately upon the performance of the ceremony, plaintiff and defendant separated and have remained apart up to the present time; that they have never lived or cohabited together as husband and wife, nor is it their wish, desire or intention to do so; nor have they ever assumed towards each other the exercise of any of the rights *Page 233
and duties, or obligations, pertaining to the marriage relation; nor have they ever acted towards each other as husband and wife; nor have they ever desired to do so; but that within a few hours after said ceremony was performed, they both consulted an attorney and sought his advice as to how to have said marriage annulled, they having been informed in the meantime that said marriage was binding until annulled by a decree of a court of equity; that on that occasion defendant as well as plaintiff stated to said attorney that said marriage was a matter of jest, and that they desired it annulled; and plaintiff alleges that it has been his earnest desire and intention ever since to live and remain separate and apart from defendant, and that he is informed and believes, and so charges, that such is the desire and intention of the defendant to live separate and apart from him, and to have the marriage annulled; and the prayer of the bill is in accordance with such desire and intention.
The answer of the defendant, while substantially admitting the circumstances of the marriage, and what was said and done on the automobile ride preceding the ceremony, attemps, at least, to put a very serious aspect upon the occurrences recited in the bill, and to put in issue the material allegations thereof. She alleges that the plaintiff seriously courted her for two or three years, and that prior to the marriage she had on his account declined the attention of numerous other young men, not named in her answer. She does not refer to any time or place where any proposal of marriage was made to her by plaintiff, except to say that on the day they returned from the automobile ride and at a drug store in Morgantown just before the marriage, plaintiff asked her to be his wife, and where and when she accepted, and that the ceremony was performed in accordance therewith, but with the understanding that the marriage was to be kept a secret until both plaintiff and she should complete their education, as planned. She denies that she does not wish to carry out the alleged marriage contract, or live with plaintiff and perform her marital duties as wife, but that on the contrary it is her earnest desire to do so. She alleges that she is without means of support, dependent on her *Page 234
father and mother, and seeks by way of affirmative relief a decree for suit money, and alimony or support money.
In a special replication to this answer, plaintiff denies the allegation of the answer imputing to his father and mother any interference with, or effort on their part to keep plaintiff and defendant separate and apart; but that on the contrary they have simply participated in the efforts begun by both parties soon after the marriage to have it annulled, and in a conference between themselves and their parents they regarded it as the proper and wise thing to do to have the marriage annulled in the most expeditious and quiet manner possible; that it was agreed between all parties that suit was to be brought, and one was begun, on Friday after the marriage on Monday, in the name of the defendant against plaintiff in this suit, and a bill prepared by counsel employed or designated by defendant's father, in accordance with an agreement and understanding, process in which suit was served on plaintiff herein; but that soon after said suit was begun, it was withdrawn, and a new attitude assumed by defendant herein and her parents; and that their apparent purpose in this suit is to make it a money grabbing proposition, for they know that there is no possibility of plaintiff and defendant living together as husband and wife; that defendant has since said marriage, as always before, continued to live with her parents and to be supported by them, and there has been very little, if any, change in her habits and conduct.
The sufficiency of the bill was not challenged in the court below, nor has it been challenged here. The sole question then is, has the case presented by the bill been sustained by the proof? Had plaintiff and defendant, at or before the marriage ceremony, by words or acts, seriously entered into a marriage contract, with the intention of becoming husband and wife, and of assuming that relationship, with the rights, duties, privileges and obligations pertaining thereto? This, it seems to us is the sole question, for it is conceded that nothing has since then been done by either of the parties to ratify or confirm the marriage, or to change their previous status, or to estop them or preclude a court of equity from *Page 235
doing equity, if there had not been in fact any prior contract binding upon them.
We can not undertake in this opinion to detail all the evidence bearing on the controlling question of fact in the case. Only the most potential facts can be covered. One of the most convincing facts is that there was no sincere courtship between the parties antedating the marriage ceremony. The plaintiff had been a student in the West Virginia University at Morgantown since September 1919. Just prior to that time he had been in a military school in Wisconsin, and before that in the public schools at Fairmont, residing all the time with his parents, either at Fairmont or at Charleston, West Virginia. Defendant during the previous year had been a student at a school in the city of Philadelphia. At the time of the marriage plaintiff was attending summer school at the University, and defendant was at home with her parents at Morgantown, spending her vacation, and intending to return to her school in Philadelphia in the fall. Not a line of correspondence between these two young people was produced in evidence, and the only evidence of any correspondence between them Was that defendant while in Philadelphia had written a note to plaintiff, at Morgantown, not replied to by him, and the contents of which was not disclosed. Nor were there any telegraph or telephone messages exchanged between them during the whole period of their acquaintance, though they were separated in school and residence much of the time, with the exception of one or two telephone messages between Fairmont and Morgantown, relating to invitations to dances at Fairmont, accepted by defendant, some two years prior to the marriage, at one of which she was an invited guest at the home of plaintiff's parents for the night of the dance, and at the other she was the guest of a girl friend at Fairmont because of the impossibility of her getting back home until morning. When school closed early in June, 1922, he went to his home at Fairmont, and she remained at her home in Morgantown. He returned to school about July 28th; but from early in June to the last of July, a period of nearly two months, these parties were separated. During this time there was not the *Page 236
slightest communication between them of any kind or character, although only about twenty-five miles apart, in cities connected with every means of communication.
Plaintiff swears positively that he never proposed marriage to defendant at any time, nor thought of doing so, on the day of the marriage or at any time before or since; nor is there any testimony of any one that plaintiff ever proposed to defendant directly or indirectly to marry her, except what took place on the day of the marriage, when with two other young people they went on a joy ride in an automobile, as described in the bill. And the only contention now made by defendant in her testimony that any proposal was made to her was that on that day and before the wedding, at a drug store in Morgantown, plaintiff asked her to be his wife, which plaintiff emphatically denies. And we think the other facts and circumstances admitted by her are overwhelmingly against her on this proposition. The evidence does show that plaintiff was on a number of occasions in company with defendant as he had been on the day of the marriage, at dances and parties, or when a number of others were present; but there is very little evidence of any appreciable degree showing any affection or love for her, or of her love for him, except such as the exuberance, impulsiveness and indiscretions of youth may fully account for, among them one or two acts of osculation, which is emphasized by defendant and her counsel. The mother of defendant in her testimony, swears that she observed on one or more occasions what she regarded as evidence of love and affection between plaintiff and defendant. But when she heard, a few days after the wedding, of the fact that her daughter had been married to plaintiff, she was apparently as much grieved and surprised over it as the parents and friends of the plaintiff, and expressed herself disappointed that her daughter should have acted as she did and undertaken to get married before finishing her education. Moreover, the defendant, since this suit was instituted, admitted to plaintiff's father in the city of Charleston, and substantially to plaintiff's mother, when she and her mother made a rather mysterious call upon them, that plaintiff had never proposed to marry her. Plaintiff's *Page 237
father and mother have both so testified in the case; and the defendant has at no time undertaken to contradict their evidence.
Such are the facts disclosed by the record, as they existed prior to the day of the wedding. Now, let us look at what occurred on the day of the wedding. There is not the slightest evidence of any planning for a wedding, then or at any time. Plaintiff with a young fraternity brother was picked up by a Miss Harkness, a witness in the case, near their fraternity house, and invited to go on an automobile ride, which invitation was accepted. After driving about the streets of the city for a time, defendant was observed on the street, and after passing her once or twice, it was suggested, by Miss Harkness, perhaps, that they stop and invite her to join the party, and they did so and she accepted, plaintiff and defendant then occupying the rear seat. Thus was made up a summer afternoon automobile party, who set out for an afternoon of fun and pleasure, and with all that such a party could imply. The evidence is that they drove out what is called the North Front Street Road, and came to a place where there was a vacant house with a for rent sign on it, when plaintiff said to defendant: "let's go in town and get married and come out and live in that house." He says, and he is corroborated by the other members of the party: "She laughed and said, 'I am game;' " and that Miss Harkness joining in the sentiment, took a hairpin from her hair and she or defendant twisted it into a ring as an engagement ring. After this pleasantry the party drove back to town, where they parked and left the car, the two girls going together to defendant's home, but were followed soon afterwards by the plaintiff and the young fraternity brother who had been with them on the automobile ride. When again together plaintiff played the piano, and the others danced; then the Victrola was played and defendant and plaintiff danced. Up to that moment the jocose proposal of plaintiff to get married was not mentioned, perhaps not thought of by any member of the party; but while dancing it occurred to plaintiff to say to defendant: "By the way I forgot that we were going to get married;" and that she repeated: "That *Page 238
is right, I forgot." At this suggestion the evidence shows plaintiff and defendant started out, the other couple following them. They proceeded to the county clerk's office, where after a time, by misrepresenting their ages, they procured a marriage license, one of plaintiff's fraternity brothers furnishing the money to pay the clerk's fee. After getting the license, they looked around the court house for a justice of the peace to perform the ceremony, and finding none they went on down to what is called Chancery Row, and there met another young friend, Bob Monroe, and some one suggested that he go along to see the fun. Then they met Miss Mildred Hughes in a car; and she and Monroe met the plaintiff and defendant and the other members of the party at the Methodist Church, where the marriage took place. On the way to the church a wedding ring was suggested, and the party went into a jewelry store where some kind of a ring was procured to serve the purpose, the plaintiff arranging for it on credit. At defendant's suggestion that she was acquainted with one jeweler and did not want to go into his place, a store across the street was selected to get the ring, and not wishing to go to the minister of her church, because acquainted with him, the student pastor of the Methodist Church was selected; and he met them in his study at that church, where the ceremony was performed, the Monroe boy first going to his room to get ten dollars to pay the minister. There is some evidence of considerable frivolity at the church before and while the ceremony was being performed. In the ceremony the ring was forgotten, and some effort was made by the minister to cover the omission after the ceremony by having plaintiff put it on defendant's finger, but it was soon afterwards taken by plaintiff, and never returned to defendant. After the ceremony and after paying the minister, plaintiff requested him to keep the marriage a secret, which the minister said was not an unusual request and he agreed to do so. The marriage certificates filled out by the minister and given plaintiff were given to the Monroe boy, who took them to the fraternity house and hid them away until they were later destroyed as hereinafter described. After the marriage the party walked down High Street to *Page 239
Pleasants where they left Miss Harkness, plaintiff and his friend Condry going on with the defendant to the apartment where she resided, where they left her and went back to their fraternity house, where they met young Monroe. Then it was that the three boys went to the New Dominion Building where a newspaper was published, and sought the editor and obtained his promise not to publish any account of the wedding.
The nature of the arrangements for the wedding, the rapidity with which they were made, show that these young people were desirous of getting out of it all the thrills which a real wedding would furnish, a license, a ring, a ceremony, then secrecy. When the minister was called by 'phone by one of the boys, he asked for a little time to make a change of clothing. When he arrived at the church he found a party of school boys and school girls fresh from an afternoon joy ride and lark, the boys bareheaded and clad in their sweaters, the girls dressed in sport clothes; only the minister had on the wedding garment. It is not for us to criticise, but we can not but express surprise that the spectacle thus presented did not suggest the propriety of caution, and of first conferring with those young people and learning from them the real purpose of the proposed marriage, and of advising them against hasty and inconsiderate action before proceeding to administer the solemn service prescribed by his particular Christian denomination. What mistakes might have thus been avoided and what trouble and heart aches of parents and friends might thereby have been averted!
Let us next consider what followed this unfortunate drama, bearing on the question of the validity of the marriage contract and the purposes and intentions of the parties thereto. Almost immediately they began to realize the seriousness of their act, and both engaged in plans to be relieved of their unfortunate situation. Plaintiff called his cousin Edward Alexander of Fairmont, to come to Morgantown. He responded at once, arriving soon afterwards in his automobile. On his arrival plaintiff and defendant with Mildred Hughes met him at a store, and all got in Alexander's car and drove across what is called Sunny Side Bridge up Stewart Street about half way, when the car was stopped, and at the request *Page 240
of Alexander and prompted by defendant, and in whose statement defendant is said to have acquiesced, plaintiff repeated to him the facts pertaining to the marriage, substantially as we have recited them. Alexander made some suggestions, which do not seem to have been followed. They drove back into Morgantown and there separated, and Alexander went home. Nothing further was done until the next day, when plaintiff and his friend Condry met defendant and her friend Miss Hughes at a drug store, where they all waited for Bob Monroe and his uncle John Wyatt, an attorney of Shinnston whom Monroe had called to advise these parties how to get out of their trouble. On Monroe's arrival shortly afterwards, without Wyatt, and after discussing the subject for a while, and nothing then being agreed upon, the meeting adjourned, defendant agreeing to meet plaintiff and others the same afternoon, with Wyatt who was to come from Shinnston, to further consider the subject of getting the marriage annulled; and that afternoon plaintiff and defendant with Bob Monroe and Miss Hughes drove out the Fairmont road and met Wyatt coming from Shinnston. At the meeting place plaintiff and Monroe reported to Wyatt the facts and circumstances of the marriage already detailed, that it was done in jest and as a joke, and that they wanted to get the marriage annulled. After hearing them plaintiff reported to defendant that Wyatt had advised that they destroy the marriage certificate, each of the four, including defendant, taking a piece of it and tearing it into small bits and spreading them along the road on the way back. When they got back to town, the party separated, plaintiff and Monroe going to the fraternity house, and the girls going to their homes. Condry was at the Fraternity house, and Wyatt soon followed them there and reported that he had seen and conferred with Mr. Charles Baker, an attorney at Morgantown, and advised them to see Baker, which plaintiff, Monroe and Condry did that evening, going to Baker's residence. There they went over the facts and explained them to Baker substantially as already recited, Baker referred them to the Wartenburg case herein cited, and suggested how nearly it resembled in *Page 241
facts the present case, and how it could, be followed in obtaining the relief the parties desired.
Mr. Baker was examined as a witness on behalf of plaintiff, and referring to a written memorandum swears that plaintiff, Condry and Monroe had related to him the facts substantially as already detailed. This meeting with the boys was on Tuesday night. Mr. Baker further swears, again speaking from his written memorandum, that on Wednesday about three o'clock, defendant, Miss Hughes and the Monroe boy came to his office. He says he put Miss Hughes and Monroe out of the room and talked to defendant privately; that she told him exactly the same story that plaintiff and the other boys had told him the night before; and to use his own language: "She told me that the whole thing was a joke and jest, that they never had intended to get married, that they had not lived together an instant, that she did not love Jamison and did not want to live with him and never had, * * * * that the whole thing was a joke and was done in a spirit of dare, * * * * that they all had had a lot of fun out of it." The witness further testified: "I was groping partly blind in the dark myself about this, I didn't know what ought to be done, and when these people came to my office I talked with Ann myself, in order to satisfy my own mind how she felt about it, so that I might know what ought to be done." Defendant admits her visit to Mr. Baker's office and that she had a conference with him, but in her testimony she attempts to put a different coloring on it from that given by Mr. Baker. She says he did refer to the Wartenburg case, and imputes to him the suggestion that she should always remember that the marriage was a joke and a jest. And the witnesses Monroe and Miss Hughes undertake in some particulars to corroborate defendant as to the suggestion of Mr. Baker. Monroe, in his evidence, excuses his contradictory story told in a signed statement with the witness Condry, by saying that he was not under oath when he joined Condry in this statement, which was prepared by Mr. Baker as the substance of their first statement of the facts. This signed statement corresponds with the facts stated by plaintiff and his witnesses to the transactions.
But even more important and convincing is the evidence *Page 242
of the meeting of the parents of plaintiff and defendant, at the home of plaintiff's uncle in Morgantown on Thursday evening, at which all were present. At this meeting these young people were requested by their parents to say what they desired to do about their situation. There can be no doubt that the defendant replied that she would prefer plaintiff to state their wishes. According to the evidence of all present his statement was that the marriage had been done purely as a joke; that defendant and he were not in love with each other; that he was not through school, and was not able to support a wife; and that he and she had talked the matter over the previous evening and had decided that they could not live together, and that if they were forced to do so it would simply mean the wrecking of two lives because of their thoughtless joking, and that the only thing to do was to get the marriage annulled; and that to this statement, defendant, when asked specifically if she felt the same way, answered, "Yes," that she would do whatever was decided upon. Defendant in her testimony undertakes to deny that she thus concurred. She says she said nothing. Certainly she did not protest, for everybody, including her father, so understood her, and that it was then and there agreed that suit should be at once instituted in defendant's name against plaintiff herein; and counsel were chosen or designated who would represent the respective parties. And the next day, Friday, suit was instituted by Miss Shakespeare against the plaintiff and process served on him as defendant. The praecipe for the suit was signed, not only by Posten Baker, but also by Donley Hatfield, that latter firm being the same counsel representing the defendant here and in the circuit court; and in her suit a bill was prepared in which substantially the same facts were alleged as are alleged in plaintiff's bill in the present case; but her bill was never in fact filed, because of the change of mind which seems to have overtaken her and her parents before it could be filed; and the suit was ordered dismissed by her father and mother, but they say because she demanded it. Her father in his testimony in this case admits that he understood the agreement at the conference on Thursday was exactly as plaintiff and the other witnesses *Page 243
present understood it, and that the next day he acted accordingly. These facts being established by the evidence, what should a court of equity do? The suggestion is made in the record by counsel, and even in the written opinion of the circuit judge, that these proceedings were inspired by the parents of plaintiff. The evidence is clear and undisputed that neither of them knew of the marriage until Wednesday, two days after it had taken place, and after the parties themselves had done much towards securing an annulment. Of course they became interested as the defendant's parents did, which resulted in the conference of Thursday night. What parents would not have done so, especially when their only children were so involved, and in whom their hopes and ambitions had been centered and fixed? The wrecking of two lives near and dear to them was here involved. They met as parents naturally would to assist their children in doing the right and proper thing. They are shown to have consulted together with that end in view. Plaintiff's father distinctly stated at that meeting that if the children were in fact in love with each other and wanted to live together, that he would in no way interfere; that it was up to them to decide. The result was as already stated. There is not a thing in all this voluminous record to justify even the suggestion of bad faith or improper conduct on the part of plaintiff's parents or either of them. On the contrary, there is evidence of their most kindly consideration of both parties. Even after the present suit was brought, when defendant and her mother called upon plaintiff's father and mother in the city of Charleston, and she made the suggestion that she believed plaintiff would see her if they would not interfere, plaintiff's father replied, and she does not deny it, that he had not interfered and would not, and advised her to call upon plaintiff and try to make an appointment to see him, if he would see her. In the face of all this evidence, should relief be denied?
In reaching his conclusions the judge below seems to have regarded most of this evidence as immaterial and to have cast it aside as unworthy of consideration and avows his "belief strictly in the Biblical teaching that the party who interferes in any way or tries to separate husband and wife, *Page 244
is committing a great sin." This is a suggestion that some one in the case has committed a great sin, which in other parts of the opinion is disavowed. And we do not quite see the force of this sentiment when applied to the case in hand. The question here is, whether in truth a marriage contract was ever made or consummated. The facts, we think, show that no such contract was made, except in jest. Certainly none was ever consummated. The status of the parties has remained the same as before the ceremony, and the contract has little to stand upon except the ceremony, and as was said in some of the cases cited and some to be cited, it takes more than a religious ceremony to consummate such a contract. Marriage may be likened to a beautiful plant, which when properly set in a fertile soil and cultivated and watered and warmed in the sunshine of love and affection, will bloom and become an object of perennial beauty and a joy forever. But marriage does not belong to the class, "Insectivorous," which by brilliancy of color or fragrance of flower, or both, first attracts, then allures, then entraps and destroys its victims.
The question recurs: Do the facts established by the evidence call for the application of the legal principles invoked by the pleadings? The principle of other cases cited, affirmed in the first of the Crouch v. Wartenburg cases and reaffirmed in the second, supra, is that: "A marriage ceremony, though actually and legally performed, when entered into in jest, with no intention of entering into the actual marriage status and all that it implies, and with the understanding that the parties are not to be bound thereby, or assume toward each other the relation ordinarily implied in its performance, including the duties, obligations, rights and privileges incident thereto, and followed by no subsequent acts or conduct indicative of a purpose to enter into such relation, does not constitute a legal basis for the marriage status, and the pretended marriage may be annulled in equity at the suit of either party." It is true that in those cases both parties persisted to the end of the litigation that the marriage was conceived in a joke and both concurred in the proposition to have it annulled. That both parties in this case were in accord in the beginning and until after defendant *Page 245
instituted her suit there can be no doubt in the world. What effect then, can her change of purposes have on the rights of the parties? We think the facts present and attending the marriage must control unless the invalid marriage has been since ratified by the parties as by cohabitation and a change in their status. In 1 Bishop on Marriage, Divorce and Separation, sec 295, the author says: "Though marriage is a public interest of the highest order, and the status of marriage is cast upon the parties by the law, yet the course of the law is to impose it only on those who seek it, not upon the non-consenting. And as matrimony can exist only in pairs, both the man and the woman must consent mutually to the same thing at the same time — elements which in combination constitute a contract." In Clark v. Field, 13 Vt. 460, a leading case on this subject, it was held that where a marriage ceremony was had under a mistake of one of the parties as to its legal effect and it was not intended to be followed by cohabitation, without a future public marriage ceremony, and was not consummated, a court of chancery may decree it null and void at the election of one of the parties. The minds of the parties must meet in a marriage contract as in all other contracts, else it is not binding on either party. Dorgeloh v. Murtha,156 N.Y.S. 181, 185. And in another leading case, McClurg v.Terry, 21 N.J. Eq. 225, cited with approval in the Crouch-Wartenburg case, the rule is stated to be that: "A marriage ceremony, though actually and legally performed, when it was in jest, and not intended to be a contract of marriage, and it was so understood at the time by both parties and so considered and treated by them, is not a contract of marriage.Intention is necessary, as in every other contract." So that it is of no importance that the defendant, since the marriage and since she withdrew her suit or allowed it to go by default, has for some reason not explained, changed her mind; if there was no valid contract between the parties at the time of the marriage, she can not at her election afterwards convert a falsehood into a verity.
Numerous other cases might be cited illustrating the principles controlling our decision and their application to cases based on fraud or mistake and other grounds of equity cognizance, *Page 246
but we think, in view of our own cases cited, enough has been said to fully justify our conclusion to reverse the decree below, and to enter the decree already suggested, which we think should have been entered below, annulling the marriage between plaintiff and defendant of August 14, 1922, and the public record thereof expunged and adjudged to be of no binding force and effect for or against either of the parties thereto.
Reversed, and decree entered. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4005954/ | O. E. Camp was superintendent of free schools in Kanawha county. He was found guilty by a jury on an indictment for a felony, involving a violation of official duty, and on April 26, 1930, was sentenced to the penitentiary by the intermediate court. This is an action against the presidents of the several boards of education of Kanawha county, to require them to appoint his successor. He was also made a respondent, as this proceeding involves his right to continue in office.
The constitution of West Virginia, article IX, § 4, declares that all county officers shall be subject to indictment for malfeasance, etc., and "upon conviction thereof, their offices shall become vacant." The word "conviction" in its primary sense refers to a verdict of guilty by a jury. But whenever aconviction is declared to work some disability, the word is generally given a broader significance. The common law in this respect, as voiced by Lord Hale, follows: "By conviction I *Page 278
conceive is intended not barely a conviction by verdict where no judgment is given, but it must be a conviction by judgment." 1 Hale P. C. 686. In Commonwealth v. Fugate, 2 Leigh (29 Va.) 724, decided in 1830, the Supreme Court of Virginia held that despite statutory changes in the common law as to the punishment of felons, it was still the law in Virginia that a justice forfeited his office upon conviction and attainder of a felony. As attainder followed or was the effect of the judicial sentence, it is manifest that the Virginia court meant that such a conviction should embrace both verdict and judgment. The above section became a part of our Constitution in 1872, and was taken from the Virginia Constitution, adopted in 1851. Its proponent at the Virginia convention was delegate R. E. Scott of Fauquier, a celebrated lawyer. The chairman of the judicial committee of the convention was R. C. L. Moncure, later president of the state Supreme Court. Many other able lawyers were delegates. The presumption is inescapable that Mr. Scott and the other learned attorneys at the convention were conversant with the construction placed on such a conviction both at common law and by the Virginia court, and that the Virginia convention accepted that construction. In adopting the Virginia law, we also adopted the Virginia construction. The word "conviction" as used in the above section is therefore held to imply both a verdict of guilty and the sentence of the court thereon. See generally 16 C. J. pp. 1266, 1267, § 3002; Annotation 24 A.L.R. 1290.
Mr. Camp favors that construction as far as it goes, but insists that it should require also the adjudication of a court of last resort. His counsel with great diligence have assembled a number of cases as supporting this contention. But examination shows that the cases were based either on facts or enactments dissimilar to those in this case. It is true the citations support the proposition that in order for a conviction to work a disability, "a final adjudication by judgment" is requisite. But that requirement does not imply the finality of appellate adjudication. Mr. Camp's contention is gainsaid both by legislative and judicial declarations in this state. In 1882, an act was passed by our Legislature, which provided: "No *Page 279
person convicted of * * * felony * * * shall, while such conviction remains unreversed be elected or appointed to any office * * * and, if any person while holding such office, be so convicted, the office shall be thereby vacated." See Acts 1882, chapter 42, § 4. This section appears as section 4, chapter 7, of the Code of 1923. As the Legislature expressly forbade the selection to office of one under an unreversed conviction for a felony, it could not have intended to tolerate the continuation in office of such a person pending appellate review. The very wording of the act shows that the Legislature construed the constitutional disability as applying to aconviction in itself without respect to appellate affirmance. "I have no doubt," said BRANNON, JUDGE, in McDonald v. Guthrie,43 W. Va. 595, 596, 27 S.E. 844, 845, "that if, upon indictment for the offenses specified in section 4, art. IX, the party (a county officer) be convicted, the judgment would itself work his removal from office." In State v. Savage, 86 W. Va. 655,104 S.E. 153, this court stated with precision that the finality of judicial ascertainment requisite in a conviction, is finality, "so far as the trial court is concerned." We consider this ruling sound. Otherwise, an officer under conviction could administer the duties of his office from the jail, or penitentiary even, during the interval (eight months) allowed for application to this court, simply by not securing appellate review. The mere statement of the alternative repels it.
The robe of innocence with which the law invested Mr. Camp during trial was stripped from him by the verdict of the jury. The judgment of the court has put upon him the garb of guilt. A legal as well as laical presumption has now arisen that his conviction is just. Jones Comm. on Ev. (1st Ed.) § 12d; 2 Bishop's New Cr. Procedure (2d Ed.) § 1103; Underhill's Cr. Ev. (3rd Ed.) § 42; 17 C. J. p. 225, § 3571; Hawkins v. State,142 Tenn. 238, 218 S.W. 397. It is essential to our government that public officials have the confidence of the people. That confidence cannot extend to an official under conviction for malfeasance in office. His rights are subordinate to the public weal. The possibility that his conviction may ultimately be reversed cannot weigh against public dissatisfaction with, *Page 280
and public mistrust of him pending appellate hearing. Public policy demands a rigid construction of this law was well as its rigid enforcement. With pitiless propriety the Supreme Court of Virginia said, that when the people established the Constitution they never intended that a public office "should be contaminated by the presence of a convicted * * * felon."Commonwealth v. Fugate, supra, page 726 of 2 Leigh (29 Va.). Under enactments similar to ours, the Supreme Court of California held: "If a public officer is convicted of a felony and sentenced upon such conviction, the effect of the judgment as terminating his title to the office is not avoided by his prosecuting an appeal and obtaining from the judge a certificate of probable cause. McKinney v. Horton, 151 Cal. 711, 121 A.S.R. 146, 13 L.R.A. (N.S.) 661.
We accordingly hold that under the Constitution the conviction of Mr. Camp vacated his office. Under Code, c. 45, § 32, it then became the duty of the presidents of the several boards of education of Kanawha county to appoint his successor. This duty they have failed to perform. Therefore the peremptory writ will issue.
Peremptory writ issued. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4005955/ | This is a notice of motion for judgment to recover money claimed to be due by reason of extra labor performed in the installation of a sprinkler system in the defendant's hotel. Error is prosecuted from a judgment entered on a verdict for plaintiff.
The writing under which the sprinkler system was installed provided that all extra labor required on account of alterations, etc., was to be considered as work additional to that *Page 68
covered by contract and was to be paid for as an extra to the contract price. No mention, however, was made therein as to what scale would be used in compensating plaintiff for such additional work. The itemized statement attached to the notice groups the extra labor hours under eight different items, but does not give dates when the labor was actually performed. It makes charge against defendant on the basis of a "foreman" and a "helper" at $15.00 and $8.40, respectively, for each eight hours worked.
One of the specifications of error relates to the insufficiency of the evidence to support the verdict. An examination of the record discloses some evidence tending to show that defendant had made a number of alterations not contemplated in the plans upon which the contract for installation of the sprinkler system was based and the materials later fabricated; that such alterations required extra labor on the part of plaintiff in installing the equipment, because the materials had to be altered on the job to make them fit; but nothing appears in any way to show the fair value of the services set out in the statement, and upon which recovery is sought.
In the absence of a special agreement as to the amount to be paid for this extra work, or the mode for the ascertainment thereof, the law implies a promise on the part of defendant to pay the reasonable value thereof. In other words, in such circumstances, the party rendering the service agrees to perform the same, for, and the recipient agrees to pay therefor, the reasonable value of the service at that time and place. 40 Cyc. 2853; 28 Rawle C. L. 668.
In order to recover for such services, the burden is upon the plaintiff not only to prove what services were actually rendered, but also to show the value thereof. 40 Cyc. 2845. While he is possibly entitled to recover a nominal amount under the evidence (Belfour v. Raney), 8 Ark. 479; Gill v. New YorkCab Co., 1 N.Y.S. 202), he cannot put down an arbitrary figure in his statement of account, and recover a substantial amount thereon without specific evidence to the effect that the amount set is reasonable. The statement in itself is not proof of anything, in view of the defendant's plea of nil debit. *Page 69
The circuit court properly held that the written contract was not ambiguous, and that the plaintiff, under it, was entitled to recover for all extra labor caused by alterations made subsequent thereto. Therefore the defendant was clearly not entitled to put in the testimony which tended to vary its terms. The other points of error raised also are without merit.
The case is reversed; the verdict of the jury set aside, and a new trial awarded the defendant.
Judgment reversed; verdict set aside; new trial awarded. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3006611/ | Case: 14-40985 Document: 00513215302 Page: 1 Date Filed: 10/01/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-40985
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
October 1, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
TERRELL JUSTIN ROGERS,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:13-CR-15-1
Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM: *
The attorney appointed to represent Terrell Justin Rogers has moved for
leave to withdraw and has filed a brief in accordance with Anders v. California,
386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011).
Rogers has not filed a response. We have reviewed counsel’s brief and the
relevant portions of the record reflected therein. We concur with counsel’s
assessment that the appeal presents no nonfrivolous issue for appellate review.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 14-40985 Document: 00513215302 Page: 2 Date Filed: 10/01/2015
No. 14-40985
Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is
excused from further responsibilities herein, and the APPEAL IS DISMISSED.
See 5TH CIR. R. 42.2.
2 | 01-03-2023 | 10-02-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/4538734/ | Electronically Filed
Supreme Court
SCPW-XX-XXXXXXX
03-JUN-2020
02:01 PM
SCPW-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
TEKOA IKAIKA DENOMIE, Petitioner,
vs.
STATE OF HAWAI#I, Respondent.
ORIGINAL PROCEEDING
(CASE NO. 1PC091001448)
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)
Upon consideration of petitioner Tekoa Ikaika Denomie’s
“Motion to Release Non-Violent Community Custody Prisoner From
Custody with Special Release Terms and Conditions Amid
Coronavirus COVID-19 BioTerrorism Pandemic,” which was filed as a
petition for writ of habeas corpus on May 27, 2020, and the
record, it appears that petitioner presents no special reason for
this court to invoke its jurisdiction and has alternative means
to seek relief. See Oili v. Chang, 54 Haw. 411, 412, 557 P.2d
787, 788 (1976). Accordingly,
IT IS HEREBY ORDERED that the petition for writ of
habeas corpus is denied.
IT IS HEREBY FURTHER ORDERED that the clerk of the
appellate court shall process the petition for writ of habeas
corpus without payment of the filing fee.
DATED: Honolulu, Hawai#i, June 3, 2020.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
2 | 01-03-2023 | 06-04-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3223148/ | I concur in overruling the state's application for a rehearing because of the matters discussed in the opinion rendered on *Page 545
the original submission. However, I do not concur in the expressions contained in the opinion prepared by my brothers to the effect that defendant's motion for a new trial should have been granted because of an insufficiency of the state's proof as to the age of the girl. There was direct, positive, testimony supporting the state's contention. Its weight and sufficiency were, I think, properly left to the jury, and I cannot see that the trial court would have been justified in substituting his own opinion for theirs, as he must have done if he had granted defendant's motion for a new trial on the ground named. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/126862/ | 537 U.S. 1165
STEPHENSv.CALIFORNIA.
No. 02-7594.
Supreme Court of United States.
January 21, 2003.
1
CERTIORARI TO THE COURT OF APPEALS OF CALIFORNIA FOR THE FIFTH APPELLATE DISTRICT.
2
Ct. App. Cal., 5th App. Dist. Certiorari denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/2892564/ | NO. 07-04-0401-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
MARCH 30, 2005
______________________________
WAYNE HALBERT, APPELLANT
V.
KIDD JONES OIL COMPANY AND TEXAS TRANSEASTERN, INC., APPELLEES
_________________________________
FROM THE 392ND DISTRICT COURT OF HENDERSON COUNTY;
NO. 00B-316; HONORABLE CARTER TARRANCE, JUDGE
_______________________________
Before QUINN and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINION
Following a non-jury trial, appellant Wayne Halbert challenges a judgment that he
take nothing on his Deceptive Trade Practices Act claim against Kidd Jones Oil Company
and Texas Transeastern, Inc. By two issues, he questions 1) whether he proved and
established by a preponderance of the evidence that the contaminated fuel incident or any
other conduct, act, or omission of Kidd Jones or Transeastern was the producing cause of
additional damages or loss, and 2) whether the trial court committed harmful error by
denying his request for additional findings of fact and conclusions of law. We affirm.
On May 27, 2000, Halbert purchased fuel at a Kidd Jones station for his 1993
Chevrolet diesel truck. That morning, prior to Halbert's purchase, Transeastern mistakenly
delivered gasoline into Kidd Jones's diesel tank, thereby contaminating their diesel fuel
supply. Shortly after fueling, the engine in Halbert's truck began experiencing problems
and refused to start. Halbert had his truck towed to Elliott Chevrolet for repairs. At that
time, according to the repair order, the truck's odometer indicated 198,849 miles. The
repairs were completed on May 30, 2000, and the $520.49 repair bill was paid by Kidd
Jones. Following the repairs, Halbert drove the truck for some time before he encountered
additional problems with the engine. (1) On March 7, 2002, the engine was inspected by Kidd
Jones's expert who recorded the truck's odometer at 211,070. Halbert, a self-employed
diesel mechanic, then performed substantial repairs on the engine on June 6, 2002, at a
cost of $6,691.66, and again on June 23, 2002, at a cost of $5,583.48.
Halbert sought to recover his damages under section 17.50 of the Deceptive Trade
Practices-Consumer Protection Act. By his petition, he alleged violations of the Act and
sought to recover damages, which were not specifically identified or described, that would
exceed $50,000. Following a non-jury trial, the trial court signed a judgment by which it
found, among other things, that the contaminated fuel was the producing cause of
damages to Halbert's truck and all damages were remedied and repaired on May 30,
2000. Because Kidd Jones fully paid all costs and expenses for the repairs, the court
rendered judgment that Halbert recover nothing from Kidd Jones. On May 5, 2004, at
Halbert's request, the trial court made eighteen findings of fact and five conclusions of law.
As is material here, the trial court found that Halbert suffered no damages or loss due to
the contaminated fuel subsequent to the repairs made on May 30, 2000. On June 8,
2004, Halbert requested that the trial court make additional findings of fact and
conclusions of law. Kidd Jones and Transeastern objected to the request alleging it was
untimely under Rule 298 of the Texas Rules of Civil Procedure. The trial court
subsequently denied Halbert's request for additional findings or conclusions.
Request for Additional Findings and Conclusions
Addressing the issues in logical order, we first review Halbert's second issue. By
this issue, Halbert contends the trial court erred by denying his request for additional
findings of fact and conclusions of law. We disagree. At Halbert's request, the trial court
filed its initial findings and conclusions on May 5, 2004. Halbert filed his request for
additional findings on June 8, 2004. However, Rule 298 requires that a request for
additional or amended findings or conclusions be filed within ten days after the filing of the
original request. Because Halbert's request was untimely, appellant's second issue is
overruled. See Richardson v. Milner, 345 S.W.2d 449, 450 (Tex.Civ.App.-Amarillo 1961,
writ ref'd n.r.e.).
Sufficiency of the Evidence
We now consider Halbert's first issue by which he challenges the trial court's
findings pertaining to additional damages. Halbert contends the trial court's findings were
in error and that a preponderance of the evidence shows that the contaminated fuel
purchased from Kidd Jones caused him to sustain damages and losses in addition to
those for which he was compensated. We disagree.
In reaching this conclusion, we must first consider the appropriate standard of
review. Findings of fact in a bench trial have the same force as a jury's verdict upon jury
questions. City of Clute v. City of Lake Jackson, 559 S.W.2d 391, 395 (Tex.Civ.App.--Houston [14th Dist.] 1977, writ ref'd n.r.e.). However, findings of fact are not conclusive
when a complete statement of facts appears in the record, if the contrary is established as
a matter of law, or if there is no evidence to support the findings. Middleton v. Kawasaki
Steel Corp., 687 S.W.2d 42, 44 (Tex.App.--Houston [14th Dist.] 1985), writ ref'd n.r.e., 699
S.W.2d 199 (Tex. 1985) (per curiam). When the trial court acts primarily as a fact finder,
the findings of fact are reviewable for factual and legal sufficiency under the same
standards that are applied in reviewing evidence supporting a jury's answer. Zieben v.
Platt, 786 S.W.2d 797, 799 (Tex.App.--Houston [14th Dist.] 1990, no writ). See also W.
Wendell Hall, Standards of Review in Texas, 34 St. Mary's L.J. 1, 183 (2002).
When an appellant challenges both the legal and factual sufficiency of the evidence,
the appellate court should first review the legal sufficiency challenge. Glover v. Texas
Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981); Koch Oil Co. v. Wilber, 895 S.W.2d
854, 862 (Tex.App.--Beaumont 1995, writ denied). An appellant attacking the legal
sufficiency of an adverse finding on which he 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). The appellate court reviews the entire record for any evidence
that supports the adverse finding, while disregarding all evidence and inferences to the
contrary. Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264, 276
(Tex.App.-Amarillo 1988, writ denied). If there is no evidence to support the finding, the
reviewing court must review the entire record to determine if the contrary proposition was
established as a matter of law. McGalliard v. Kuhlmann, 722 S.W.2d 694, 696-97 (Tex.
1986).
An appellant challenging the factual sufficiency of an adverse finding where he had
the burden of proof must show on appeal that the finding was against the great weight and
preponderance of the evidence. Gooch v. Am. Sling Co., 902 S.W.2d 181, 184
(Tex.App.-Fort Worth 1995, no writ). If there is some probative evidence to support the
finding, the finding must be upheld. ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426,
430 (Tex. 1997). The court should only set aside an adverse finding if, in light of all the
evidence, the evidence which supports the finding is so weak as to be clearly wrong and
manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
In addition, although findings of fact are reviewable for legal and factual sufficiency,
an attack on the sufficiency of the evidence must be directed at specific findings of fact
rather than at the judgment as a whole. In re M.W., 959 S.W.2d 661, 664 (Tex.App.--Tyler
1997, no writ). The rule has often been otherwise stated that if the trial court's findings of
fact are not challenged by a point of error on appeal, they are binding upon the appellate
court. Northwest Park Homeowners Ass'n, Inc., v. Brundrett, 970 S.W.2d 700, 704
(Tex.App.--Amarillo 1998, pet. denied); Carter v. Carter, 736 S.W.2d 775, 777 (Tex.App.--Houston [14th Dist.] 1987, no writ). However, a challenge to an unidentified finding of fact
may be sufficient for review if it is included in the argument of the issue or point, or if after
giving consideration to the nature of the case, the underlying applicable legal theories, and
the findings of fact provided, the specific finding(s) of fact which the appellant challenges
can be fairly determined from the argument. See Holley v. Watts, 629 S.W.2d 694, 696
(Tex. 1982) (citing Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38
Tex. L. Rev. 361 (1960)).
In his brief, Halbert makes a general challenge to the sufficiency of the evidence
pertaining to the trial court's failure to find additional damages. Halbert also does not
designate whether he is challenging the factual or legal sufficiency of the evidence or both.
The Texas Supreme Court has taken a liberal approach and somewhat relaxed the
standards for wording points of contention on appeal in an effort "to obtain a just, fair and
equitable adjudication of the rights of the litigants." Pool v. Ford Motor Co., 715 S.W.2d 629,
633 (Tex.1986), overruled on other grounds by Crown Life Ins. Co. v. Casteel, 22 S.W.3d
378 (Tex. 2000). Even so, this Court in Northwest found such a lack of specificity to be fatal
to the issues on appeal. See Northwest, 970 S.W.2d at 704. Although we do not find it
necessary to rule on this issue in the present case, we do find it difficult to determine the
specific findings of fact which Halbert contends were not supported by the evidence at trial.
Moreover, regardless of the findings alluded to in the briefs, we find that the evidence
before the trial court was sufficient to support its conclusion that Kidd Jones was not
responsible for any damage or loss subsequent to the initial repairs. We are equally
convinced that the trial court's findings were not against the great weight and preponderance
of the evidence. Danny Hudson, the service manager at Elliott Chevrolet, testified that on
May 30, 2000, Elliott made the necessary repairs to remedy the damage done to Halbert's
truck as a result of the contaminated fuel and that the repairs were billed to Kidd Jones.
Elliott's repair invoice reflected that the odometer on Halbert's vehicle read 198,849 miles.
Halbert then drove the vehicle for some time before he began experiencing additional
problems with the engine. After the lawsuit was filed, the engine was inspected by the
defendant's expert, Phillip Smith. Smith concluded that Halbert's problems with the engine
"were not related to the fuel issue." Smith's report also listed the mileage on Halbert's
vehicle to be 211,070, thereby indicating that the vehicle was driven 12,221 miles after the
initial repairs. This evidence leads us to the conclusion that any number of factors, whether
it be ordinary wear and tear, or otherwise, could have led to the eventual demise of the
engine. At trial, Halbert stated his belief that if Elliott Chevrolet had replaced the fuel
injector, the situation would have been resolved. However, instead of questioning the nature
and quality of the repairs, he chose to continue to drive the vehicle another 12,221 miles
until the engine eventually failed and now seeks to recover his losses from Kidd Jones.
These facts, in addition to the lack of substantive evidence at trial on Halbert's behalf, are
more than sufficient to support the trial court's findings under the appropriate standards of
review. Issue one is overruled.
Accordingly, the judgment of the trial court is affirmed.
Don H. Reavis
Justice
1. There is a dispute in the record as to the length of time the truck was driven
following the initial repairs until the engine ceased to function properly a second time.
idence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury,
or by considerations of undue delay, or needless presentation of cumulative evidence. | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2960762/ | Order Michigan Supreme Court
Lansing, Michigan
September 16, 2015 Robert P. Young, Jr.,
Chief Justice
Stephen J. Markman
Mary Beth Kelly
151196 Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein,
JAMES WADE, Justices
Plaintiff-Appellee,
v SC: 151196
COA: 317531
Iosco CC: 13-007515-NH
WILLIAM MCCADIE, D.O. and ST. JOSEPH
HEALTH SYSTEM, INC. d/b/a HALE ST.
JOSEPH MEDICAL CLINIC,
Defendants-Appellants.
____________________________________/
On order of the Court, the application for leave to appeal the January 29, 2015
judgment of the Court of Appeals is considered. We direct the Clerk to schedule oral
argument on whether to grant the application or take other action. MCR 7.305(H)(1).
The parties shall file supplemental briefs within 42 days of the date of this order
addressing: (1) whether the 91-day extension provided in MCL 600.2912d(3) for filing
an affidavit of merit applies where the plaintiff claims that the defendants did not produce
all medical records within 56 days after receipt of the notice of intent as required by MCL
600.2912b(5); (2) whether the defendants were obligated, under MCL 600.2912b(5), to
explain to the plaintiff that certain records could not be produced because they had been
destroyed; and (3) whether billing records are medical records for purposes of MCL
600.2912b(5). The parties should not submit mere restatements of their application
papers.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
September 16, 2015
a0909
Clerk | 01-03-2023 | 09-18-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2966551/ | PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ROBERT J. SMITH,
Plaintiff-Appellant,
v.
No. 95-1956
SYLVIA J. REDDY, Officer;
BALTIMORE COUNTY, MARYLAND, a
body corporate and politic,
Defendants-Appellees.
ROBERT J. SMITH,
Plaintiff-Appellant,
v.
No. 96-1456
SYLVIA J. REDDY, Officer;
BALTIMORE COUNTY, MARYLAND, a
body corporate and politic,
Defendants-Appellees.
Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(CA-95-137-S)
No. 95-1956 Argued: March 5, 1996
No. 96-1456 Submitted: May 5, 1996
Decided: November 27, 1996
Before ERVIN and NIEMEYER, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by published opinion. Senior Judge Butzner wrote the opin-
ion, in which Judge Ervin and Judge Niemeyer joined.
_________________________________________________________________
COUNSEL
ARGUED: William Francis Gately, H. Thomas Howell, HOWELL,
GATELY, WHITNEY & CARTER, Towson, Maryland, for Appel-
lant. Michael Allan Fry, Assistant County Attorney, BALTIMORE
COUNTY OFFICE OF LAW, Towson, Maryland, for Appellees. ON
BRIEF: Kathleen D. Leslie, HOWELL, GATELY, WHITNEY &
CARTER, Towson, Maryland, for Appellant. Virginia H. Barnhart,
County Attorney, Gregory E. Gaskins, Assistant County Attorney,
BALTIMORE COUNTY OFFICE OF LAW, Towson, Maryland, for
Appellees.
_________________________________________________________________
OPINION
BUTZNER, Senior Circuit Judge:
Robert Smith, suing under 42 U.S.C. § 1983, asserts that Officer
Sylvia Reddy of the Baltimore County Police Department violated the
Fourth Amendment by arresting him and searching his house without
probable cause. Although Reddy procured warrants authorizing these
actions, Smith contends that Reddy's affidavits, filed in support of the
warrants, contain false statements and omit material facts, making her
reliance on the warrants unreasonable. In response, Reddy argues that
she is entitled to qualified immunity from civil liability because she
acted in an objectively reasonable manner. The district court agreed
with Reddy and granted her motion for summary judgment. Smith v.
Reddy, 882 F. Supp. 497 (D. Md. 1995). Smith appealed.
While Smith's appeal was pending in this court, he filed a motion
in the district court under Rule 60(b)(2) and (3) of the Federal Rules
of Civil Procedure to vacate and set aside the summary judgment.
Based on allegedly newly discovered evidence, Smith claimed that
the affidavits supporting Reddy's motion for summary judgment
included misrepresentations. The district court denied the motion, and
2
Smith again appealed. Both parties have briefed the second appeal,
and we now consolidate both appeals. We review the district court's
grant of summary judgment de novo, Hodge v. Jones, 31 F.3d 157,
163 (4th Cir. 1994), and its denial of the Rule 60(b)(2) and (3) motion
for abuse of discretion. National Organization for Women v. Opera-
tion Rescue, 47 F.3d 667, 669 (4th Cir. 1995).
After careful review of the record, we find that Reddy's conduct
was objectively reasonable and affirm the summary judgment that
granted her immunity. However, we reach that conclusion by an anal-
ysis that differs somewhat from the district court's. We also affirm the
denial of the Rule 60(b) motion because Smith has not shown fraud
or misrepresentation by clear and convincing evidence.
I
The historical facts are not in serious dispute. In the early morning
of December 17, 1993, the Baltimore County Police Department was
notified that someone had fired a gun into the front door of Christo-
pher's Nightclub, causing no injuries. When the first officers arrived,
they were directed to Ms. Lisa Young, a 25-year-old who claimed to
be the intended victim of the shooting. At least one of the officers
knew that Young had a "bad" reputation in the police department.
Young was visibly intoxicated, and, initially, she was uncooperative
and reluctant to talk with the officers.
Eventually Young told the interviewing officer that she believed
Robert Smith was the gunman. She explained that she and Smith, her
boyfriend of eight months, had come to the club together in his black
Rolls Royce, which he had parked in the fire lane in front of the club.
Shortly after entering the club, Smith became jealous when Young
kissed a bartender she knew. He grabbed her by the arm and threat-
ened to kill her. The bartender later confirmed that, when Young
kissed him, the man with her became angry and led her away by the
arm. According to Young, after having a few drinks, Smith repeated
his threat to kill her twice more, once if she refused to leave the club
and a second time if she refused to get into his car. Although Young
did follow Smith to his car, she then told him she did not want to see
him again, threw the ring he had given her into the car, and returned
to the club. Back inside a few minutes later, she heard gunshots.
3
Because she had seen a gun hidden under the seat of Smith's car on
other occasions, she believed he was shooting at her, so she fled to
the women's room.
The police on the scene also interviewed Mr. John Bukofsky and
Mr. Jonathan Hawes, who were in the parking lot when the shooting
occurred. Shortly before the shooting, they saw the club's bouncer
refuse to admit a young white male, wearing a red and white ski
jacket. A few moments later, they heard six gunshots and saw a gun
flashing. After the shots were fired, Hawes saw the same young man
running from the area where the shooting had occurred up a hill to the
nearby Padonia Road. Neither witness saw the person firing the shots.
Hawes gave an officer six .45 caliber shell casings and showed him
where they had been found. The club's bouncer reported that,
moments before the shooting, he had turned away a young male wear-
ing a faded blue jacket and had confiscated the driver's license pres-
ented by the youth. The name Mark Tilton and a Cockeysville address
appear on the license.
Later that day, the case was assigned to Officer Reddy. After read-
ing the initial reports and talking with the officers who had been on
the scene, Reddy interviewed Young. Young confirmed that she
believed Smith was responsible for the shooting, but admitted she had
not seen a gun in his car on the previous night. Young directed Reddy
to Smith's house. They met Smith and he agreed to talk with Reddy.
During the interview, Smith confirmed that he had accompanied
Young to the club, he had been displeased with her conduct, he had
decided to leave, they had walked to his car, and she had returned to
the club. Smith denied threatening Young, trying to force her to leave
with him, or keeping a gun in his car. He also denied shooting at the
club or even being aware of the shooting. Reddy asked Smith to con-
sent to a chemical test of his hands that would determine whether he
had recently fired a gun. Smith agreed. Despite Smith's consent, the
test was not conducted. According to Reddy, she later learned that the
test would not have been reliable because too much time had passed
since the shooting. Smith told Reddy that he owned four guns, two
AK-47s, one 30-30 Winchester, and a .32 automatic pistol.
In addition to interviewing Smith, Reddy attempted to contact
Mark Tilton. On December 18, Reddy and another officer spoke with
4
Ms. Deborah Tilton, who reported that her three sons, Mark (age 21),
Rodney (age 23), and Kirk (age 17), lived with her but were away for
the weekend. Asked if any of her sons had lost their wallets recently,
Ms. Tilton said Mark had lost his wallet in February, 1993 some-
where in Cockeysville. In response to further questions, she informed
the officers that her sons had not been home on the previous evening,
but that none of them owned a gun, a red and white ski jacket, or a
blue ski jacket. She said Kirk had been at his aunt's house baking
cookies at the time of the shooting. Ms. Tilton did not know where
her sons were or when they would come home, but promised to call
Reddy when they returned. Ms. Tilton never called and Reddy made
no further attempts to contact her sons.
Reddy telephoned Smith on December 20 in an attempt to gather
additional information. During the conversation, Reddy asked Smith
if he knew why the attacker fired the shots through the club's front
door rather than the window. Smith replied, "I guess that's where Lisa
was standing at." Reddy then asked Smith why he thought the attack
was aimed at Lisa. Smith fell silent. He ended the conversation after
Reddy indicated that only the attacker would know the identity of the
intended victim.
On December 21, Reddy interviewed Mr. Dennis Bazuine, who
was at the club on the night of the shooting. Although Bazuine did
not see the shooting, he had spoken with a patron who claimed he saw
it. On January 6, he introduced Reddy to Mr. Kevin Earle. Earle told
Reddy he had been in the club's parking lot at the time of the shoot-
ing. He said he saw the gunman, who was wearing a multicolored ski
jacket, firing the shots. Earle recognized him as an older gentleman
who regularly parked his black Rolls Royce in the fire lane in front
of the club. After the man fired the shots, Earle saw him run up a hill
and get into a car on Padonia Road. He did not see the black Rolls
Royce on the club's parking lot at that time. Reddy asked Earle why
he had not reported this information to the police earlier. He
explained that he did tell an officer on the scene what he had wit-
nessed. Earle also told Reddy that he did not know Young.
On January 10, 1994, Reddy sought a warrant for the arrest of Rob-
ert Smith. Three days later she sought a warrant authorizing a search
of Smith's house. Both warrants were issued and executed. Smith was
5
charged with attempted murder, assault, handgun violations, and reck-
less endangerment. At a pretrial hearing during which Smith chal-
lenged the state's evidence, the state court determined that sufficient
evidence existed to remand the case for trial. Following a bench trial,
Smith was acquitted of all charges.
On January 17, 1995, Smith filed this case in district court. The
district court found that Reddy was entitled to qualified immunity and
granted her motion for summary judgment. The district court denied
Smith's subsequent motion to vacate and set aside the judgment.
Smith appealed both rulings.
II
The ultimate issue presented in this appeal is whether the district
court properly granted Officer Reddy qualified immunity. Although
we conclude that Reddy is entitled to immunity, we reach that conclu-
sion by means of a somewhat different analysis than the district court.
The district court held that if a plaintiff alleges that an officer
obtained a warrant by misleading a magistrate, the plaintiff must sat-
isfy the subjective standard set forth in Franks v. Delaware, 438 U.S.
154, 155-56 (1978), to overcome a defendant's claim of qualified
immunity. The Franks standard requires "a substantial preliminary
showing that a [material] false statement knowingly and intentionally,
or with reckless disregard for the truth, was included by the affiant in
the warrant affidavit." Id.; United States v. Colkley, 899 F.2d 297, 300
(4th Cir. 1990). Rather than engaging the Franks test, we apply the
qualified immunity analysis, which examines the objective reason-
ableness of an officer's conduct. Anderson v. Creighton, 483 U.S.
635, 639 (1987); Harlow v. Fitzgerald, 457 U.S. 800, 815-19 (1982).
The objective standard pertaining to qualified immunity accommo-
dates the allegation of falsity because a reasonable officer cannot
believe a warrant is supported by probable cause if the magistrate is
misled by statements that the officer knows or should know are false.
See United States v. Leon, 468 U.S. 897, 922-23 (1984).
Law enforcement officers are entitled to qualified immunity from
§ 1983 liability arising from their official discretionary acts that do
not "violate clearly established statutory or constitutional rights of
6
which a reasonable person would have known." Harlow, 457 U.S. at
818; see also Malley v. Briggs, 475 U.S. 335, 345 (1986). In order to
determine whether an officer's conduct is immunized, this court has
formulated a three-step analysis: (1) identify the right allegedly vio-
lated, (2) decide whether that right was clearly established at the time
of the alleged violation, and, if so, (3) determine whether a reasonable
person in the officer's position would have known that his or her
actions violated that right. Pritchett v. Alford , 973 F.2d 307, 312 (4th
Cir. 1992). If the right was not clearly established at the relevant time
or if a reasonable officer might not have known his or her conduct
violated that right, the officer is entitled to immunity.
In this case, Smith alleges that Reddy violated his constitutional
right not to be arrested or searched without probable cause. Although
the arrest and search underlying Smith's claim were authorized by
warrants, he asserts that Reddy obtained the warrants by including
false statements in, and omitting material facts from, the warrant
applications. Smith's position is that, based on the facts known or
readily available to Reddy, it was unreasonable for her to conclude
that the warrants in this case were supported by probable cause. Or,
at the least, Smith argues, the record reveals genuine issues of mate-
rial fact that precluded the district court from entering summary judg-
ment before discovery.
III
Because the Fourth Amendment right to be arrested only on proba-
ble cause is clearly established, the question that remains is whether
a reasonable person in Reddy's position would have thought her
actions violated that right. The reasonableness of Reddy's conduct
does not turn on whether probable cause was, in fact, present. Hunter
v. Bryant, 112 S. Ct. 534, 536 (1991). When an officer acts pursuant
to a warrant, the pertinent question is whether the officer could have
reasonably thought there was probable cause to seek the warrant.
Anderson, 483 U.S. at 638-39; Torchinsky v. Siwinski, 942 F.2d 257,
261 (4th Cir. 1991). Qualified immunity is lost only if "the warrant
application is so lacking in indicia of probable cause as to render offi-
cial belief in its existence unreasonable." Malley, 475 U.S. at 344-45.
In other words, an officer is not denied qualified immunity for making
7
a mistake, as long as that mistake is reasonable under the circum-
stances.
When Reddy sought the warrants, the evidence implicating Smith
was substantial. Young's description of the evening's events gave
Smith a plausible motive for the shooting, and he had an opportunity
to fire the shots. Earle's eyewitness account provided direct evidence
that Smith was the gunman. In addition, Earle's report supported and
tended to confirm Young's account. Finally, Smith's conduct during
his second conversation with Reddy, although not unambiguously
incriminating, could certainly be viewed as suspicious. Based on
these facts, a state court determined that probable cause existed and
issued the warrants.
Smith does not contend that the warrant application did not estab-
lish probable cause. Rather, he argues that the warrant application
presented an inaccurate and misleading view of the facts. In his view,
because Reddy knew or should have known the actual facts, it was
unreasonable for her to seek the warrants. According to Smith, Reddy
should have doubted the reliability of Earle's statement because he
was not mentioned in the police reports, even though he claimed he
told the police on scene what he had witnessed. Smith also asserts that
any reasonable officer would have questioned Young's credibility in
light of her reputation and her intoxication on the night of the shoot-
ing. Finally, Smith suggests that Reddy inadequately investigated the
youth seen running from the club. When these factors are viewed
together, Smith argues, it becomes clear that probable cause was lack-
ing.
We reject Smith's argument. First, although Earle is not mentioned
in the police reports, it was not unreasonable for Reddy to rely on his
statement. Of course, it would have been better if Reddy had tried to
determine why Earle was not mentioned in the reports, but this over-
sight was not nearly as egregious as Smith portrays it. Although
Reddy spoke with Earle for the first time three weeks after the shoot-
ing, it is undisputed that Earle entered the club several minutes after
the shots were fired. Bazuine, who introduced Reddy to Earle, told
Reddy that Earle had described the shooting to him on the night it
took place. Both Earle's story and the version of the story retold by
Bazuine include several specific facts that reveal Earle's knowledge
8
of the crime scene. As disinterested parties, neither Earle nor Bazuine
had any apparent motive for hiding the truth. In addition, Earle's
account was consistent with the other evidence implicating Smith.
Although the judge in the criminal trial found Earle's testimony to be
unreliable, a police officer conducting an investigation is not in a
position to make the type of credibility determination that occurs in
the repose of the courtroom. See Torchinsky, 942 F.2d at 262-63.
Reddy could also have reasonably believed that Young's reputation
and intoxication did not seriously undermine the reliability of her
account. Many of the details of her statement were confirmed by dis-
interested observers and by Smith himself. Also, her account is con-
sistent with Earle's eyewitness account. Although she may not be a
model witness, the police must take complaining witnesses as they
find them. See Torchinsky, 942 F.2d at 263.
Finally, Reddy's failure to pursue the other suspect did not make
it unreasonable for her to seek warrants against Smith. Although an
officer may not disregard "readily available exculpatory evidence of
which [the officer] had been made aware," an officer's failure to pur-
sue a potentially exculpatory lead is not sufficient to negate probable
cause. Torchinsky, 942 F.2d at 264.
Weighing all of the evidence, it is clear that a reasonable police
officer in Reddy's position could find probable cause for the arrest
and search.
IV
Smith protests that he was denied discovery and that summary
judgment is inappropriate. The district court, however, committed no
procedural error.
The Supreme Court has directed that "qualified immunity questions
should be resolved at the earliest possible stage of a litigation."
Anderson, 483 U.S. at 646 n.6. The reason is that qualified immunity
is "an immunity from suit rather than a mere defense to liability; . . .
it is effectively lost if a case is erroneously permitted to go to trial."
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis in original).
9
"[E]ven such pretrial matters as discovery are to be avoided if possi-
ble, as `[i]nquiries of this kind can be peculiarly disruptive of effec-
tive government.'" Id. at 526 (quoting Harlow, 457 U.S. at 817).
Accordingly, qualified immunity should be addressed at the pleading
or summary judgment stage whenever possible. Pritchett, 973 F.2d at
313. Even so, summary judgment should be granted only when it is
appropriate, that is, when there are no genuine issues of material fact
and the movant is entitled to judgment as a matter of law. Id.
"Subjective factors involving the officer's motives, intent, or pro-
pensities are not relevant. The objective nature of the inquiry is spe-
cifically intended to limit examination into an officer's subjective
state of mind, and thereby enhance the chances of a speedy disposi-
tion of the case." Rowland v. Perry, 41 F.3d 167, 173 (4th Cir. 1994).
If the material facts and the reasonable inferences drawn from those
facts disclose that a reasonable officer could have believed that his or
her actions did not violate the clearly established right, the defendant
is entitled to qualified immunity on summary judgment. See Pritchett,
973 F.2d at 312-13.
V
The basis for Smith's Rule 60(b) motion is newly discovered evi-
dence which he contends reveals that Reddy and other officers made
fraudulent misrepresentations in their summary judgment affidavits.
Smith claims he found, through depositions taken in state court pro-
ceedings, evidence demonstrating that the police doubted Young's
credibility and that Reddy's supervisor did not oversee or approve her
investigation. This evidence, Smith argues, directly contradicts state-
ments made in the summary judgment affidavits. Smith also claims
that the affiants misrepresented the facts to make Earle's story seem
more plausible.
Smith's motion is without merit. To prevail, he would need to
prove the alleged misconduct by clear and convincing evidence.
Square Construction Co. v. Washington Metropolitan Area Transit
Authority, 657 F.2d 68, 71 (4th Cir. 1981). Much of the so-called new
evidence cited in Smith's brief appears in the original summary judg-
ment record. More importantly, the few inconsistencies between the
10
deposition testimony and the affidavits do not even approach clear
and convincing evidence of misconduct.
VI
We affirm the district court's judgment granting Reddy qualified
immunity and its denial of Smith's Rule 60(b)(2) and (3) motion.
No. 95-1956 - AFFIRMED
No. 96-1456 - AFFIRMED
11 | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/4005958/ | The purpose of the bill is to enforce plaintiff's vendor's lien against a tract of 52 1/2 acres lying in Jefferson District, in Kanawha County, reserved by her in a deed to B. P. and L. J. McCormick, defendants, dated March 12, 1919.
The defense is that 18 1/2 acres of the land, including valuable *Page 132
improvements, was not owned by the plaintiff vendor at the time of the sale to defendants; and rescission of the contract is prayed for on that ground. The answer asserts that 18 1/2 acres of the land was returned delinquent in the name of Robert Brown for non-payment of taxes and was sold by the sheriff and purchased by Blumberg, a tax deed therefor having been executed and delivered to him on April 6, 1904; that afterwards this 18 1/2 acres was again returned delinquent in the name of Turley who held under the Blumberg tax title and was again sold at tax sale and purchased by M. A. Hopkins, a deed therefor being executed and delivered to him on May 28, 1915 by the county clerk. The answer asserts that defendants would not have purchased the 52 1/2 acres if they had known that plaintiff did not have title to, and could not legally convey to them this 18 1/2 acre tract; that defendants believe from information that plaintiff knew when she deeded them the land that she did not have title to the 18 1/2 acres. Defendants ask that Hopkins, the holder of the tax title to the 18 1/2 acres, be made a party and his claim and title thereto be litigated and determined. By special replication plaintiff denies the allegation in the answer to the effect that the 18 1/2 acres purchased by Hopkins at the tax sale is a part of the 52 1/2 acres deeded by her to defendants and denies that Hopkins has any interest in the land in controversy. The matters set out in the answer for affirmative relief are denied by a special and general replication, thus raising a sharp issue. To maintain their side of the issue defendants filed seven deeds by which they attempted to establish that the 18 1/2 acres is a part of the land deeded to them by plaintiff and sought to be sold in satisfaction of the vendor's lien. The circuit court found for plaintiff on the issue and decreed sale of the land in satisfaction of the vendor's lien. From this decree defendants obtained this appeal.
Do the deeds filed by defendants, (which is their sole evidence), sustain the allegation of the answer that the 18 1/2 acres to which Hopkins has tax title, is a part of the land deeded to defendants?
Defendants, appellants here, have filed no brief and made no appearance to sustain their appeal. *Page 133
The tax deed to Blumberg for 18 1/2 acres (afterwards sold and deeded to Hopkins for delinquency in tax payments), purports to convey to him by metes and bounds the remainder of a tract conveyed to Robert Brown by Mary F. Young by deed dated April 14, 1897, after Brown had conveyed back to her a part of the same tract.
In 1897 Mary F. Young conveyed to Robert Brown by metes and bounds a tract said to contain 55 1/2 acres, being the same land conveyed to her by Jas. F. Hansford and wife in the year 1874. In October, 1898, Robert Brown deeded back to Mary F. Young by metes and bounds a tract of 35 acres, more or less, evidently a part of the tract deeded to her by Hansford. As above stated, the tax deed to Blumberg is for the residue of the Hansford land which Brown did not reconvey to Mary F. Young, and which residue was returned delinquent in Brown's name. Is that part so sold for taxes a part of the land in controversy? In 1905 Mary F. Young conveyed to E. L. Robertson by metes and bounds a part of two tracts of land, one tract being a part of the Hansford tract of 56 acres deeded to her in 1874, and the other tract being a part of land deeded to her by Broun, Special Commissioner, out of the Williams estate; and there was also included in this deed to Robertson four acres by metes and bounds opposite the dwelling on the other tract and adjacent to the county road. Robertson deeded the land so conveyed to him to Hill in 1908; Hill deeded it to Bowles in 1914; and Bowles deeded it to plaintiff in 1915. Upon inspection of the calls, courses and distances describing the lands conveyed by the deed from Young to Robertson in 1905, and the tax deed to Blumberg in 1904 and by the tax deed to Hopkins in 1915, it is reasonably apparent that while they convey a part of the Hansford tract of 55 acres deeded to Mary F. Young by Hansford in 1874, yet one does not include the other. The calls, lines, corners and distances are different. Brown first purchased from Young the entire Hansford tract which she owned, said to be about 55 acres; he then deeded back to her about 35 acres by metes and bounds, leaving a portion in his name afterwards sold for taxes and deeded from him in that proceeding by metes and bounds. When Young sold to Robertson in 1905, by metes *Page 134
and bounds, she conveyed the part of the Hansford land deeded to her by Brown and a part of the Williams land. The calls indicate that she did not convey any of the Hansford tract except that which had been deeded to her by Brown. No attempt has been made by defendants to show by survey or verbal testimony that the lines of the deed to them include any portion of the land to which Hopkins has a tax title. Nor is it claimed that Hopkins has possession of any of the land in controversy. The deeds on which they rely do not establish the affirmative matters set up by their answer. Hence, we find no error in the decree, based on the evidence.
Another error assigned in the petition for appeal is based on the refusal of the court to implead Hopkins, the alleged claimant of part of the land. In a suit to enforce a vendor's lien on land adverse claimants to the land are neither necessary nor proper parties. Miller v. Morrison, 47 W. Va. 664;Dunbar v. Dunbar, 67 W. Va. 518. If there has been a failure of title to a portion of the land conveyed, and therefore the vendee has paid or contracted to pay for something which he did not get by the conveyance then there may be an abatement of the purchase price in a suit between the parties to the contract. But in a suit of this character adverse claimants to the land have no equity and their rights are not affected by such proceeding. McClung v. McClung, 78 W. Va. 486;Steed v. Baker, 13 Grat. 380. There was no error in refusing to bring Hopkins in as a party defendant.
The decree is affirmed.
Affirmed. *Page 135 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4538733/ | Electronically Filed
Supreme Court
SCPW-XX-XXXXXXX
03-JUN-2020
01:52 PM
SCPW-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
IN RE THOMAS LAURO, Petitioner.
ORIGINAL PROCEEDING
(CASE NO. 1CPN-XX-XXXXXXX)
ORDER DENYING “REQUEST FOR WRIT OF MANDAMUS
AND REQUEST FOR WRIT OF ERROR”
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)
Upon consideration of petitioner Thomas Lauro’s
“Request for Writ of Mandamus and Request for Writ of Error”,
which was filed on May 27, 2020, as a petition for writ of
mandamus, the documents attached thereto and submitted in support
thereof, and the record, it appears that petitioner is not
entitled to the requested extraordinary relief from this court.
See Kema v. Gaddis, 91 Hawai#i 200, 204-05, 982 P.2d 334, 338-39
(1999) (a writ of mandamus is an extraordinary remedy that will
not issue unless the petitioner demonstrates a clear and
indisputable right to relief and a lack of alternative means to
redress adequately the alleged wrong or obtain the requested
action). Accordingly,
IT IS HEREBY ORDERED that the petition for writ of
mandamus is denied.
IT IS HEREBY FURTHER ORDERED that the clerk of the
appellate court shall process the petition for writ of mandamus
without payment of the filing fee.
DATED: Honolulu, Hawai#i, June 3, 2020.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
2 | 01-03-2023 | 06-04-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1013964/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6487
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROBERT S. JACKSON, a/k/a Ali Jameson, a/k/a
Ali Jackson,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, District
Judge. (CR-92-75; CA-03-68-1)
Submitted: July 29, 2004 Decided: August 4, 2004
Before LUTTIG, MICHAEL, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Robert S. Jackson, Appellant Pro Se. Gerald J. Smagala, 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 S. Jackson seeks to appeal the district court’s
order denying relief on his motion filed under 28 U.S.C. § 2255
(2000). An appeal may not be taken from the final order in a
§ 2255 proceeding unless a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). A
certificate of appealability will not issue absent “a substantial
showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2) (2000). A prisoner satisfies this standard by
demonstrating that reasonable jurists would find that his
constitutional claims are debatable and that any dispositive
procedural rulings by the district court are also debatable or
wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003);
Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d
676, 683 (4th Cir. 2001). We have independently reviewed the
record and conclude that Jackson has not made the requisite
showing. Accordingly, we deny a certificate of appealability 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/3050601/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT I. GOODSTEIN, as court-
appointed receiver for Sternco
Industrial Properties Partnership
and Sterno Renton Center
Partnership,
Plaintiff-Appellant,
v.
CONTINENTAL CASUALTY COMPANY, No. 05-35805
Defendant,
D.C. No.
CV-02-01669-MJP
and
INDUSTRIAL INDEMNITY COMPANY; OPINION
INDUSTRIAL INDEMNITY CO. OF THE
NORTHWEST, also known as
Fremont Industrial Indemnity;
UNITED STATES FIRE INSURANCE
COMPANY; JOHN DOE, 1-20; ZELMAN
RENTON LLC,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding
Argued and Submitted
March 6, 2007—Seattle, Washington
Filed December 3, 2007
Before: Diarmuid F. O’Scannlain, A. Wallace Tashima, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Berzon
15567
GOODSTEIN v. INDUSTRIAL INDEMNITY 15571
COUNSEL
William F. Cronin, Corr Cronin Michelson Baumgardner &
Preece LLP, and Colleen A. Christensen, The Christensen
Firm, Seattle, Washington, for the appellant.
David M. Schoeggl, Mills Meyers Swartling, Seattle, Wash-
ington, for the appellees.
OPINION
BERZON, Circuit Judge:
At the heart of this insurance coverage dispute lie two prop-
erties, identified as contaminated by the State of Washington,
that were sold in their polluted state rather than remediated.
After the sale, Appellant Robert I. Goodstein, as receiver, ten-
dered a $5.3 million claim to Appellee Industrial Indemnity
Co. (“Industrial”) under a comprehensive general liability
(“CGL”) policy, reflecting the difference between “the
appraised value of the sites if uncontaminated less the sales
price of the sites in their contaminated states.” Industrial
refused to pay, and Goodstein consequently brought this law-
suit,1 seeking a declaration that Industrial owed a duty to
1
Appellee United States Fire Insurance Co. is also a defendant in this
suit, as it agreed to satisfy the obligations of Industrial under the insurance
policies at issue here.
15572 GOODSTEIN v. INDUSTRIAL INDEMNITY
indemnify and defend Goodstein under the policy and dam-
ages for breach of both duties. The district court granted sum-
mary judgment for Industrial on all claims, and Goodstein
timely appealed.
We affirm the district court’s holding that Goodstein’s
claim for the diminution in the sale value of the properties due
to pollution was not covered under Industrial’s policy, but
reverse the district court’s conclusion that Industrial is as a
matter of law not liable for breaching its duty to defend Good-
stein.
I.
A. The Properties
Members of the Sternoff family jointly owned, through
partnerships, two industrial properties in Washington (collec-
tively, “the properties”) — one on Marginal Way in Seattle
(“the Marginal property”) and the other in Renton (“the Ren-
ton property”). At the Marginal property, the Sternoffs oper-
ated for 45 years a scrap metal salvage yard that caused
ground pollution. At the Renton site, the Sternoffs recycled
scrap metal and electrical equipment for approximately 20
years, resulting in hazardous waste byproducts containing
high concentrations of soluble lead. The properties were iden-
tified by the Washington State Department of Ecology
(“DOE”) as environmentally contaminated in the late 1980s
and early 1990s and were listed as hazardous sites under the
Model Toxics Control Act of Washington.2
2
The Model Toxics Control Act of Washington, Wash. Rev. Code
§ 70.105D.040, “is designed to deal both with the remediation of former
environmental hazards and to prevent environmental hazards in the future,
[and] a past or present property owner is strictly liable for the remediation
of environmental hazards caused by hazardous substances it released . . .
on its property.” Olds-Olympic, Inc. v. Commercial Union Ins. Co., 918
P.2d 923, 927 (Wash. 1996).
GOODSTEIN v. INDUSTRIAL INDEMNITY 15573
Starting in the mid-1980s, the Sternoff partners had a series
of disagreements among themselves that resulted in litigation.
On March 29, 1990, the King County Superior Court dis-
solved the partnerships and appointed Robert Goodstein as
receiver to wind them up. The court indicated that Goodstein
“may proceed with remediation of contaminated properties as
necessary but may also consider sale without remediation.”
Recognizing the Sternoffs’ liability for remediating the pol-
luted properties under state and federal law,3 Goodstein pre-
3
Washington DOE regulations both allow voluntary remedial action by
the property owner and authorize DOE-initiated remedial action. Wash.
Admin. Code 173-340-510; see also Olds-Olympic, 918 P.2d at 926 n.4.
This approach reflects the DOE’s stated regulatory policy:
It is the responsibility of each and every liable person to conduct
remedial action so that sites are cleaned up well and expedi-
tiously where a release or threatened release of a hazardous sub-
stance requires remedial action. Potentially liable persons are
encouraged to initiate discussions and negotiations with the
department and the office of the attorney general that may lead
to an agreement on the remedial action to be conducted with the
state of Washington. The department may provide informal
advice and assistance on the development of proposals for reme-
dial action, as provided by WAC 173-340-515. Any approval by
the department or the state of remedial action shall occur by one
of the means described in subsections (2) and (3) of this section.
Wash. Admin. Code 173-340-510(1).
Subsection (2) of the DOE regulation identifies the two methods by
which potentially liable persons may initiate remedial action: by consent
decree under Wash. Admin. Code 173-340-520(1), or by requesting an
agreed order under Wash. Admin. Code 173-340-530. An agreed order
means the potentially liable person agrees to take specific steps to remedi-
ate the polluted site and the DOE agrees not to take enforcement action
so long as the potentially liable person performs the necessary cleanup.
Wash. Admin. Code 173-340-530(1).
Subsection (3) of the DOE regulation authorizes the DOE to initiate
remedial action by: (1) “[i]ssuing a letter inviting negotiations on a con-
sent decree under Wash. Admin. Code 173-340-520(2);” (2) “[r]equesting
an agreed order under Wash. Admin. Code 173-340-530;” or (3) “[i]ssuing
15574 GOODSTEIN v. INDUSTRIAL INDEMNITY
sented two options to the receivership court: (1) sell the prop-
erties “as is,” with a discounted sales price accounting for the
pollution, or (2) remediate the pollution and then sell the
properties. The court approved of a plan to sell the two prop-
erties “as is.”
In 1996 and 1998, respectively, the Receiver sold the Ren-
ton and Marginal properties. The Marginal property sold for
$500,000 and the Renton property for $3,001,000. The sales
agreements for both properties disclosed that the lands were
polluted and required the purchasers to take over responsibil-
ity for any cleanup the government — or the practicalities of
the real estate market — might in the future demand. The
agreements did not, however, commit the purchasers to reme-
diate the properties on their own. Both agreements also pro-
vided that “[n]o amendment, change or modification of [the
agreements] shall be valid, unless in writing and signed by the
parties hereto.”
B. The Insurance Policies
Industrial issued primary and excess insurance policies to
the Sternoffs between 1980 and 1986. In relevant part, the poli-
cies4 provide: “[Industrial] will pay on behalf of the insured
all sums which the insured shall become legally obligated to
an enforcement order under Wash. Admin. Code 173-340-540.” Wash.
Admin. Code 173-340-510(3).
In addition to these cooperative approaches to cleaning up contaminated
sites, the DOE retains the option of taking “appropriate remedial action on
its own at any time.” Wash. Admin. Code 173-340-510(4). The regula-
tions also permit citizens to undertake, under certain circumstances, “inde-
pendent remedial action[s],” i.e., cleanup efforts that are “without
department oversight or approval and not under an order, agreed order or
consent decree.” Wash. Admin. Code 173-340-515(1).
4
The policies at issue contain identical language with respect to the
terms at issue in this litigation. The citations are to Industrial policy no.
MP 811-1439, the only policy actually included in the record.
GOODSTEIN v. INDUSTRIAL INDEMNITY 15575
pay as damages because of [property damage] . . . .” Under
the policies, Industrial also assumed “the right and duty to
defend any suit against the insured seeking damages on
account of such . . . property damage, even if any of the alle-
gations of the suit are groundless, false or fraudulent, and may
make such investigation and settlement of any claim or suit as
it deems expedient . . . .” The policies do not define “dam-
ages,” “claim,” or “suit.” “Occurrence” is defined to mean “an
accident, including continuous or repeated exposure to condi-
tions, which results in . . . property damage neither expected
nor intended from the standpoint of the insured[.]”
In a provision entitled “Insured’s Duties in the Event of
Occurrence, Claim or Suit,” the policies required the Sternoffs
to provide written notice of an “occurrence” to Industrial “as
soon as practicable,” and, in the event a claim or suit is
asserted against the Sternoffs, to “immediately forward” to
Industrial all “demand, notice, summons or other process”
received by the Sternoffs. In the same provision, the Sternoffs
agreed not to “voluntarily make any payment, assume any
obligation or incur any expense” related to any such claim.
C. Communication Between the Receiver and Industrial
1. Pre-Sale Communication
On September 28, 1990, Goodstein wrote to Industrial,
indicating that the Washington DOE had identified the Mar-
ginal and Renton sites as contaminated and stating that Good-
stein had initiated a study to assess the damage and cost of
cleaning up the land. The letter also stated: “We write to
notify you that Sternoff may make a claim for cleanup and
related costs under the insurance policies you issued in favor
of Sternoff.” (Emphasis added). Copies of the relevant poli-
cies were requested, and in closing, the letter stated, “After
we have had an opportunity to review the policies, we may
make a more formal claim for coverage of the cleanup costs.”
(Emphasis added).
15576 GOODSTEIN v. INDUSTRIAL INDEMNITY
Internal documents indicate that Industrial understood the
September 28, 1990 letter to be asserting a claim for the
cleanup and other related costs. Industrial wrote a letter to
Goodstein on October 19, 1990 “acknowled[ing] receipt of
the captioned claim,” and indicating that it was attempting to
find the Sternoffs’ policies, as requested.
In a reply letter dated October 22, 1990, Goodstein
acknowledged receipt of Industrial’s October 19, 1990 letter,
but stated: “Please note, however, in case there is any confu-
sion, we are not presently making any claims under th[e]se
policies. At present, we are simply asking to obtain copies of
any policies, applications, etc. relating to insurance provided
by Industrial Indemnity to Sternoff.” (Emphasis added).
Industrial heard nothing more about the Sternoff policies
thereafter, and in December 1992 closed the file for lack of
activity. Before the file was closed, a summary of what was
known regarding a possible claim, and a list of possible
defenses, was prepared. The summary document indicated
that no coverage position letter had been issued because no
claim had been filed.
2. Post-Sale Communication
On September 25, 1998, eight years after Goodstein told
Industrial that he was “not presently making any claims”
under the Sternoff policies, Goodstein sent a letter to Indus-
trial indicating that the Renton and Marginal properties had
been sold. Goodstein stated:
Previous correspondence on my behalf had notified
. . . Industrial Indemnity, as an insurer of Sternoff,
of potential claims arising out of the environmental
contamination of properties owned and/or operated
by Sternoff. The extent of the contamination has
now been more fully investigated, and the properties
have now been sold. I am, therefore, now in a posi-
GOODSTEIN v. INDUSTRIAL INDEMNITY 15577
tion to fully present and settle the environmental
claims related to those properties.
In that letter, Goodstein also stated:
I hereby demand payment of $473,000 for the loss
on the Marginal Way property, and $4.839 million
for the loss on the Renton properties. These amounts
are calculated based on the appraised value of the
sites if uncontaminated less the sales price of the
sites in their contaminated condition.
Industrial responded a month later with a letter disclaiming
any coverage for the losses claimed by Goodstein on behalf
of the Sternoffs.
D. Procedural History
Four years later, in 2002, Goodstein filed this lawsuit. The
second amended complaint — the operative pleading for the
purposes of this appeal — sought, in relevant part, a declara-
tory judgment that Industrial owed a duty to defend and to
indemnify Goodstein under the CGL policies and asserted a
claim for breach of contract based on Industrial’s failure to
fulfill those duties.
Industrial thereafter moved for summary judgment on the
grounds that Goodstein’s claimed losses due to the allegedly
reduced proceeds5 from the property sales were not covered
by the policies and that Goodstein had never invoked the duty
to defend.
In opposing the summary judgment motion, Goodstein
5
For the purposes of the summary judgment motion, Industrial assumed
that the Sternoffs received less money for the properties in their “as is”
contaminated state than they would have had they first remediated the pol-
lution.
15578 GOODSTEIN v. INDUSTRIAL INDEMNITY
offered evidence that he and the purchaser of the Renton
property, Zelman Renton LLC (“Zelman”), had entered into
an oral agreement “to ensure that all rights to insurance cover-
age for environmental damage at the Renton site are consoli-
dated and assigned to the Receiver.” Specifically, the
declaration stated that “the Receiver and Zelman have agreed
that: 1) all rights the Receiver had to insurance coverage for
environmental contamination will be transferred to Zelman;
and 2) Zelman will transfer all rights it has to insurance cov-
erage back to the Receiver.” The declaration attesting to the
cross-assignment indicated that “[t]he agreement has not yet
been finalized.” No such agreement evidencing the transfer
and cross-transfer was submitted in support of Goodstein’s
opposition to summary judgment.
The district court granted Industrial’s summary judgment
motion on July 11, 2005, finding that Industrial had neither a
duty to defend nor a duty to indemnify Goodstein under the
policies. In rendering its decision, the court did not consider
the evidence purporting to establish a cross-assignment.
Goodstein thereafter filed a motion for reconsideration, this
time supported by a new declaration that stated that “all the
material terms [of the cross-assignment agreement] had been
negotiated by, agreed to, and known to the parties as of Janu-
ary 27, 2005.” A written cross-assignment agreement was also
submitted as evidence. The district court denied the motion
for reconsideration on August 5, 2005, holding that Goodstein
failed to comply with the local rules governing such motions.
Goodstein timely filed the instant appeal. On appeal, Good-
stein challenges the district court’s failure to consider the
cross-assignment evidence at the summary judgment and
reconsideration stages, as well as the district court’s grant of
summary judgment for Industrial on Goodstein’s duty to
indemnify and duty to defend claims.6
6
On appeal, we “review de novo a grant of summary judgment and must
determine whether, viewing the evidence in the light most favorable to the
GOODSTEIN v. INDUSTRIAL INDEMNITY 15579
II.
Before proceeding to evaluate the merits of the district
court’s summary judgment order, we first address whether the
court erred in (1) refusing to consider Goodstein’s cross-
assignment evidence submitted in opposition to the summary
judgment motion, and (2) denying Goodstein’s motion for
reconsideration predicated on additional evidence of the
cross-assignment.
Goodstein asserts that it offered evidence that Zelman, who
purchased the Renton property, entered into an agreement
with Goodstein “in principle to cross-assign rights to insur-
ance coverage, such that all of the rights [Goodstein] had
were transferred to Zelman and all of the rights that Zelman
had were then transferred back to [Goodstein].” In so doing,
Goodstein argues, the agreement “created an indisputable
damages claim, since Zelman paid the costs to remediate the
Renton property.” Because we hold that the district court
properly declined to consider the cross-assignment evidence
at summary judgment and properly refused to reconsider that
decision, we do not address the possible impact of the alleged
cross-assignment on Goodstein’s substantive claims.
A. Cross-Assignment Evidence at Summary Judgment
Stage
The district court did not abuse its discretion by declining
to consider the cross-assignment evidence submitted at the
summary judgment stage.7 See Orr v. Bank of Am., NT & SA,
nonmoving party, there are any genuine issues of material fact and
whether the district court correctly applied the relevant substantive law.”
Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc).
7
Although the Sternoffs argue that the district court simply ignored the
cross-assignment evidence, the summary judgment order indicates other-
wise. The district court noted the evidence but explained that “this agree-
ment was only mentioned briefly by Plaintiff and not in a way that put the
substance or validity of this agreement properly before the Court for con-
sideration.”
15580 GOODSTEIN v. INDUSTRIAL INDEMNITY
285 F.3d 764, 773 (9th Cir. 2002) (reviewing trial court’s
refusal to consider inadmissable evidence at summary judg-
ment under abuse of discretion standard). Goodstein argues
that he had reached an oral agreement concerning the assign-
ments, and that the declaration properly served as evidence of
its existence. He asserts that “testimony of an agreement is
adequate to prove its existence,” and that oral agreements are
enforceable if they set forth all material terms of the agree-
ment and provide that the parties will later memorialize the
agreement.
[1] The evidence Goodstein submitted in opposition to
summary judgment, however, indicates that no definitive
agreement had actually been reached: “The Receiver has
reached an agreement in principle with Zelman . . . . The
agreement has not yet been finalized.” (Emphasis added). So,
contrary to Goodstein’s assertion, the declaration did not state
that the parties had already agreed to the final terms but
would memorialize them later. Cf. Restatement (Second) of
Contracts § 26. Moreover, the sales agreement executed by
Zelman and Goodstein, which the cross-assignment purported
to modify, made clear that only written, signed agreements
could supersede or amend the original sales agreement.
[2] Given these circumstances, the evidence submitted in
opposition to summary judgment is insufficient to prove the
existence of an enforceable contract under Washington law.8
For an agreement to be enforceable, “the terms assented to
must be sufficiently definite, [and] the contract must be sup-
ported by consideration.” Keystone Land & Dev. Co. v. Xerox
Corp., 94 P.3d 945, 949 (Wash. 2004) (citation omitted).
Moreover, testimony attesting to the existence of an oral con-
tract must describe the “essential terms” of the agreement. See
Hansen v. Transworld Wireless TV-Spokane, Inc., 44 P.3d
8
Washington substantive law governs this dispute, which is predicated
on diversity jurisdiction. See Intel Corp. v. Hartford Accident & Indem.
Co., 952 F.2d 1551, 1556 (9th Cir. 1991).
GOODSTEIN v. INDUSTRIAL INDEMNITY 15581
929, 938 (Wash. Ct. App. 2002). The declaration submitted
by Goodstein discloses no pertinent details of the purported
cross-assignment, including what consideration supported the
parties’ agreement.9 Because the purported agreement was
admittedly not final, not in writing, despite the requirement in
the original contract, and the evidence failed to sufficiently
detail its terms, the district court did not abuse its discretion
in declining to consider the cross-assignment evidence.
B. Cross-Assignment Evidence at Reconsideration Stage
The district court also properly declined to reverse its sum-
mary judgment ruling on the basis of evidence submitted in
support of Goodstein’s motion for reconsideration. “We
review a district court’s denial of a motion for reconsideration
for an abuse of discretion.” M2 Software, Inc. v. Madacy
Entmt., 421 F.3d 1073, 1086 (9th Cir. 2005).
[3] The district court refused to reconsider the cross-
assignment issue because Goodstein failed to meet the stan-
dard for such motions laid out in the local rules. The Western
District of Washington Local Rules provide that motions for
reconsideration are disfavored, and will be granted only upon,
in pertinent part, “a showing of new facts . . . which could not
have been brought to [the court’s] attention earlier with rea-
sonable diligence.” W.D. Wash. Local R. 7(h).
9
In support of his argument, Goodstein cites Cable & Computer Tech-
nology Inc. v. Lockheed Sanders, Inc., 214 F.3d 1030 (9th Cir. 2000).
Cable & Computer is, as an initial matter, nonbinding authority, as it con-
cerned California rather than Washington law. Id. at 1033. Moreover,
instead of helping Goodstein, the case simply highlights the deficiencies
in the evidence submitted to the district court. Cable & Computer found
the oral contract at issue to be a valid final agreement, rather than an unen-
forceable “naked agreement to agree,” because the evidence submitted
described the terms of the agreement and noted the amount of consider-
ation paid. Id. at 1035. Here, by contrast, the declaration is cursory and
vague, and does not describe any consideration due under the agreement.
15582 GOODSTEIN v. INDUSTRIAL INDEMNITY
[4] Goodstein’s new evidence indicated that, “[w]hile the
agreement was not memorialized to [sic] writing by the time”
the original declaration in opposition to summary judgment
was submitted, “all the material terms had been negotiated by,
agreed to, and known to the parties as of January 27, 2005.”
Yet, the declaration submitted in January in opposition to
summary judgment did not recite the terms contained in the
written document dated more than seven months later and
submitted in support of reconsideration. Because those terms
were, according to Goodstein, fully settled at the time the
opposition to summary judgment was filed in January, the
July submission on reconsideration fails of its own weight:
According to that submission, the precise terms of the cross-
assignment agreement could have been brought to the district
court’s attention in January, as they were “negotiated, agreed
to, and known to the parties” by then. Goodstein’s motion for
reconsideration therefore did not meet the burden imposed by
the Local Rules. W.D. Wash. Local R. 7(h); see also Shalit v.
Coppe, 182 F.3d 1124, 1132 (9th Cir. 1999)
(“[R]econsideration is appropriate only in very limited cir-
cumstances, and . . . the overwhelming weight of authority is
that the failure to file documents in an original motion or
opposition does not turn the late filed documents into newly
discovered evidence.” (alteration and internal quotation marks
omitted)).
[5] Accordingly, we conclude the district court did not
abuse its discretion in excluding the cross-assignment evi-
dence at summary judgment and in denying Goodstein’s
motion for reconsideration. We therefore need not consider
the possible impact of the alleged cross-assignment of rights
on Goodstein’s substantive claims for coverage under Indus-
trial’s CGL policy. We turn to those claims next.
III.
Goodstein challenges the district court’s conclusion that
Industrial had no duty to indemnify the receiver for the differ-
GOODSTEIN v. INDUSTRIAL INDEMNITY 15583
ence between the sale price received for the polluted proper-
ties and the fair market value of the land had it been cleaned
up prior to sale. We agree that the policy does not provide for
such indemnity. We cannot, however, adopt the rationale
asserted by the district court, as Industrial urges.
In finding that Industrial had no indemnification duty under
the policy, the district court first emphasized that Washington
adheres to a strict distinction between third and first party
insurance. See Olds-Olympic, 918 P.2d at 930 (Wash. 1996).
Given the fact that Industrial’s policy was designed to protect
third party harm, the district court reasoned, the policy provi-
sion obligating Industrial to pay “ ‘on behalf of the insured,’
rather than to the insured” must be read literally, to provide
only for “indemnify[ing] the insured for someone else’s loss,
not for the insured’s own loss,” and thus to preclude coverage
for the decreased sale price.
[6] The Washington Supreme Court, however, has demon-
strated a marked willingness to take a view of policy language
in the context of insurance coverage for environmental
cleanup claims sufficiently expansive to preclude such literal-
ism. For example, in Boeing Co. v. Aetna Casualty & Surety
Co., 784 P.2d 507 (Wash. 1990), which concerned a CGL
policy identical to the one at issue here, the Washington
Supreme Court interpreted the policy to provide coverage
beyond the literal scope of the policy’s language. The specific
question certified to the court in Boeing concerned whether
environmental cleanup costs incurred by an insured consti-
tuted “damages” under a CGL policy. Id. at 516. In conclud-
ing that such costs are within the scope of CGL coverage, the
court necessarily rejected the notion that the policy covers
only sums paid to the third party damaged by the insured’s
actions. In other words, Boeing held remediation costs cov-
ered under a third-party liability policy even though the
insurer was to pay the insured for costs incurred, rather than
paying the party to whom the insured was actually “liable” for
the property damage — i.e., the EPA and/or the Washington
15584 GOODSTEIN v. INDUSTRIAL INDEMNITY
DOE. Yet, the literal language of the policy, as interpreted by
the district court in this case, would appear to prohibit such
coverage. Thus, Goodstein’s claim cannot fail simply because
it is not a request for a payment made to a harmed third party.
So recognizing, Goodstein argues that the claim for the
diminution in value of the land due to the pollution should be
covered because it is a functional approximation of the cost
to remediate the properties, which Industrial would be liable
to pay under Boeing and Weyerhaeuser Co. v. Aetna Casualty
& Surety Co., 874 P.2d 142 (Wash. 1994).10 In support of this
argument, Goodstein urges us not to confuse form and sub-
stance: “Washington courts have taken a more pragmatic
approach and have refused to allow a forfeiture of coverage
based on an insurer’s superficial objections to the form that a
claim takes, especially where the substance of the claim is
identical to what the insurance covers,” citing Boeing.
But the instant land sale contracts do not amount to the
functional equivalent of the claims in Boeing and
Weyerhaeuser in one crucial respect: Neither contract
required the buyer actually to remediate the pollution as a
condition of sale. Because of that omission, this case is funda-
mentally different from the situation presented in both Boeing
and Weyerhaeuser.
[7] The rationale for finding coverage in those two cases is
that the third party injured by the insured’s bad act is made
whole through the insurer’s payments for cleanup costs. The
plaintiffs in Boeing and Weyerhaeuser actually cleaned up the
polluted land, thus remedying the harm to the public caused
by the contamination. The covered damages were incurred as
part of that effort. As the court in Boeing explained, the CGL
10
The Washington Supreme Court extended Boeing’s holding in
Weyerhaeuser, concluding that CGL policies cover environmental cleanup
costs incurred by the insured even where no administrative agency has
taken official adversarial action. Weyerhaeuser, 874 P.2d at 145.
GOODSTEIN v. INDUSTRIAL INDEMNITY 15585
policies cover as “damages” an insured’s obligation to pay
environmental response costs because “the substance of the
claim for response costs in the present case concerns compen-
sation for restoration of contaminated water and real proper-
ty.” 784 P.2d at 515 (emphasis added).
[8] In this case, however, Goodstein would have Industrial
compensate him when he has not taken any action to ensure
— either by procuring clean up services himself or by requir-
ing the buyer of the contaminated land to do so — that the
harm caused by the Sternoffs’ polluting activities has been or
will be remedied. Indeed, the record indicates that while one
of the properties was cleaned up by the purchaser, the other
remains polluted almost ten years after the sale and over fif-
teen years after the government first identified the land as
containing hazardous waste.
This holding does not elevate form over substance, as
Goodstein suggests. Rather, it draws a line consistent with
Washington’s expressed preference for encouraging prompt,
voluntary remediation of pollution in the insurance coverage
context.
The Washington Supreme Court articulated such a concern
in Weyerhaeuser. Weyerhaeuser acknowledged that special
considerations inform coverage disputes in the environmental
claims context, because environmental statutes impose strict
liability on polluters “in order to safeguard society in gener-
al.” 874 P.2d at 152. The court then cited the concerns
expressed by commentators and the DOE that precluding cov-
erage of voluntary clean up costs under CGL policies would
“create[ ] a disincentive to engage in independent cleanups,”
and that, as a result, “the environment will suffer severe harm
if owners have to postpone a cleanup until a clear third party
claim prompts a lawsuit.” Id. at 151-52. Weyerhaeuser’s dis-
cussion of these potential harms demonstrates a concern with
encouraging prompt remediation of the harm caused to the
15586 GOODSTEIN v. INDUSTRIAL INDEMNITY
public by pollution with a minimum of transaction costs to the
government.
Echoing the Washington Supreme Court is the Insurance
Commissioner, who articulated the state’s basic position on
environmental claims by declaring:
It is in the public interest to reduce the costs incurred
in connection with environmental claims and to
expedite the resolution of such claims. The state of
Washington has a substantial public interest in the
timely, efficient, and appropriate resolution of envi-
ronmental claims involving the liability of insureds
at polluted sites in this state. This interest is based on
practices favoring good faith and fair dealing in
insurance matters and on the state’s broader health
and safety interest in a clean environment.
Wash. Admin. Code 284-30-900(1).
[9] In this case, Goodstein presumably did receive a signifi-
cantly reduced price for the sale of the properties due to their
pollution. We believe, however, that Washington courts
would not find that loss covered under Industrial’s policy, as
Goodstein failed to ensure that the polluted properties would
be cleaned up promptly. Again, the purchase agreements con-
tained no cleanup condition. In economic terms, it is probable
that the reduced purchase price represented a calculation
premised on the probable cost of remediation as discounted
by a factor representing the probability that the costs would
actually be incurred and, if so, how far in the future. The
reduction in price for the cleanup costs was thus almost surely
not equivalent in amount to the present cost of prompt
cleanup. And the purchaser retained the right, and had an
incentive, to contest any specific government-imposed
cleanup requirements, as well as to delay incurring cleanup
costs as long as possible.
GOODSTEIN v. INDUSTRIAL INDEMNITY 15587
[10] Furthermore, the language of the policy supports our
conclusion that Goodstein’s claim for diminution in value
cannot be covered under Industrial’s policy. First, diminution
in value does not alone constitute “property damage” where
the policy language requires “physical injury to tangible proper-
ty.”11 In Guelich v. American Protection Ins. Co., 772 P.2d
536 (Wash. Ct. App. 1989), the issue was whether a home-
owner’s umbrella liability insurer had a duty to defend him in
a view obstruction suit. The court held that diminution in
property value resulting from an obstructed view does not
constitute a “physical injury to tangible property” that would
give rise to the duty to defend, because such diminution is not
itself a physical injury, and a view is not tangible property.12
Id. at 538. Thus, it appears that under Washington law, dimi-
nution in property value would not be covered as property
damage under the “physical injury” language of the Industrial
general liability policy. See also New Hampshire Ins. Co. v.
Viera, 930 F.2d 696, 701 (9th Cir. 1991) (“[W]e are per-
suaded that diminution in value is not ‘physical damage’ to
‘tangible property’ ” under California law); Auto-Owners Ins.
Co. v. Carl Brazell Builders, 588 S.E. 2d 112, 116 (S.C.
2003) (“Most courts hold the diminished value of tangible
property does not constitute property damage within the
meaning of CGL policies which define property damage as
physical injury.”).
[11] Nor can diminution in value fall within the realm of
“damages” that the “insured shall become legally obligated to
pay” because of “property damage.” While Washington courts
have interpreted such “damages” to include response costs
11
The Industrial policy defines “property damage” as “physical injury to
or destruction of tangible property” or “loss of use of tangible property.”
12
The Guelich court cited Prudential Prop. & Cas. Ins. Co. v. Law-
rence, 724 P.2d 418 (Wash. Ct. App. 1986), as persuasive authority. In
Prudential, the court found a duty to defend in a view obstruction suit
where the policy language did not include the limiting term “physical”;
however, the court implied that a different policy by the same insurer
requiring “physical injury” would not have created a duty to defend.
15588 GOODSTEIN v. INDUSTRIAL INDEMNITY
incurred by insureds in cooperation with an environmental
agency, see Weyerhaeuser, 874 P.2d at 145; Boeing, 784 P.2d
at 515, they have never extended such interpretation to
include diminution in property value as a surrogate for
response costs never incurred. Here, there is no indication that
the Sternoffs or Goodstein incurred any clean-up expenses or
compensated an environmental agency for its response costs;
indeed, they were “not required to expend any money . . . .”
Block v. Golden Eagle Ins. Co., 121 Cal. App. 4th 186, 196
(2004) (holding that diminution in property value does not
constitute “damages” under a liability policy). Furthermore,
Goodstein did not “constructively” expend any money for
remediation, because the sale was not conditioned on
remediation that the buyer would perform with the money
saved from the reduced purchase price.13
[12] Accordingly, we affirm the district court’s holding that
Industrial had no obligation to indemnify Goodstein for the
loss associated with the sale of the polluted properties under
the policy.14
13
A contrary finding “would essentially convert a liability policy to one
that insures against a diminution in market value.” Block, 121 Cal. App.
4th at 196. Moreover, it would create perverse incentives for landowners
to sell contaminated properties “as is” at fire sale prices and reap a wind-
fall from their insurers under the guise of “diminution in market value”
damages.
14
As an alternative argument, Goodstein also asserts that Industrial
should be liable for coverage under a waiver and/or estoppel theory. In
support of that proposition, Goodstein argues that Industrial was aware
that Goodstein was filing a claim for coverage in his September 1990 let-
ter but elected not to assert a reservation of rights or deny coverage. Good-
stein makes no attempt to show that Industrial knew he was seeking to
invoke coverage and made a conscious decision not to raise any defenses
to coverage. See Dombrosky v. Farmers Ins. Co. of Wash., 928 P.2d 1127,
1134 (Wash. Ct. App. 1996). Indeed, as Goodstein himself stated in his
October 1990 letter that he did not understand the September 1990 letter
to be a claim for coverage, he is ill-positioned to maintain that Industrial
should have interpreted it as such. Further, Industrial’s internal documents
indicate only that it was preparing to assert defenses should Goodstein
ever tender a claim for coverage, not that it considered that one had
already been made. For the same reason, Goodstein has not shown reason-
able reliance on any representation, express or implied, by Industrial, a
required element of equitable estoppel. Id.
GOODSTEIN v. INDUSTRIAL INDEMNITY 15589
IV.
Goodstein also challenges the district court’s grant of sum-
mary judgment for Industrial on the duty to defend claim.
A. Duty to Defend vs. Duty to Indemnify
[13] The district court held that Industrial had no duty to
defend Goodstein because the policy clearly did not cover his
claim for diminution in value damages. While it is true that
the duty to defend does not arise for “ ‘claims which are
clearly not covered by the policy,’ ” an insurer has a duty to
defend whenever “the insurance policy conceivably covers the
allegations.” Woo v. Fireman’s Fund Ins. Co., 164 P.3d 454,
459 (Wash. 2007) (en banc) (quoting Kirk v. Mt. Airy Ins.
Co., 951 P.2d 1124 (Wash. 1998) (en banc)) (emphasis
added). According to Goodstein, the DOE’s allegations of
contamination created a duty to defend, because claims for
environmental remediation are potentially covered under the
Industrial policy.
As an initial matter, we note that whether DOE’s actions in
declaring the Sternoff properties polluted constituted a “suit”
within the meaning of the policy is an open issue under Wash-
ington law. The Washington Supreme Court has repeatedly
declined to resolve the issue. See Olds-Olympic, 918 P.2d at
928 n.7 (observing that “[c]ase law from around the country
. . . is split on what constitutes a ‘suit’ for purposes of the duty
to defend in environmental cleanup cases” and declining to
resolve the issue); Weyerhaeuser, 874 P.2d at 148 (same). But
Industrial has not argued in this court that the government’s
conduct related to the polluted properties did not constitute a
“suit,” so we do not endeavor to resolve the issue. Instead, we
assume that the DOE designation of the property was a “suit.”
[14] So assuming, the issue is whether Industrial would
have been potentially liable for response costs under the pol-
icy. Because Washington courts agree that environmental
15590 GOODSTEIN v. INDUSTRIAL INDEMNITY
response costs can constitute covered “damages” under CGL
policies, see Boeing, 784 P.2d at 515, we are satisfied that the
DOE action implicated Industrial’s duty to defend.
That Goodstein ultimately did not pay any response costs
is irrelevant to whether a duty to defend existed while such
response costs were potentially payable, because “[u]nder
Washington law, the duty to defend and the duty to indemnify
are separate obligations,” Dewitt Constr. v. Charter Oak Fire
Ins. Co., 307 F.3d 1127, 1137 (9th Cir. 2002), and “should be
examined independently,” Weyerhaeuser, 874 P.2d at 148.
However, once Goodstein sold the properties without per-
forming any remediation, he converted the response costs,
which may have been covered under the policy, into an eco-
nomic loss that clearly fell outside the scope of coverage.
Hence, while the duty to defend began at the time of the DOE
action, it terminated upon the sale of the properties. See Over-
ton v. Consol. Ins. Co., 38 P.3d 322, 334 (Wash. 2002) (“An
insurer’s duty to defend is a continuing one, and does not end
until the underlying action is resolved or it is shown that there
is no potential for coverage.”) (emphasis added). We there-
fore analyze the duty to defend solely with respect to the time
period from the DOE action up to the sale of the properties.
B. Invocation of the Duty to Defend
Industrial argues that we need not further concern ourselves
with whether the duty to defend was breached, because Good-
stein’s claim that it was comes much too late. Given that the
duty to defend can be breached without implicating the duty
to indemnify, our analysis of the timing issue begins with
when, if at all, Goodstein invoked the duty to defend in the
first instance.
1. 1990 Letters
Goodstein asserts that he invoked the duty via the Septem-
ber 28, 1990 letter, which he claims gave Industrial notice of
GOODSTEIN v. INDUSTRIAL INDEMNITY 15591
the fact that the DOE had declared the properties polluted.15
A review of the full record before us, however, makes clear
that this position is untenable.
[15] Washington courts have rejected the notion that “a ten-
der of defense is sufficient if the insured puts the insurer on
notice of the claim.” Unigard Ins. Co. v. Leven, 983 P.2d
1155, 1160 (Wash. Ct. App. 1999). “[A]n insurer cannot be
expected to anticipate when or if an insured will make a claim
for coverage; the insured must affirmatively inform the
insurer that its participation is desired.” Id.; see also Griffin
v. Allstate Ins. Co., 29 P.3d 777, 782 (Wash. Ct. App. 2001);
Time Oil Co. v. Cigna Prop. & Cas. Ins. Co., 743 F. Supp.
1400, 1420 (W.D. Wash. 1990). Goodstein’s October 22,
1990 letter went to great pains to inform Industrial that no
claim had been made: “Please note, however, in case there is
any confusion, we are not presently making any claims under
the policies.” (Emphasis added). Far from informing Indus-
trial that its participation was desired in any investigation,
negotiation or defense regarding the extent of Goodstein’s lia-
bility for the pollution, see Unigard, 29 P.3d at 782, Good-
stein specifically disclaimed any intent to invoke coverage
under the policies. Goodstein cannot now claim Industrial’s
duty to defend arose as a result of that early correspondence.
2. Failure to Invoke the Duty
Industrial’s position is just as unpersuasive. Industrial
asserts, as it also did in the district court, that it could not have
breached the duty to defend because Goodstein never invoked
that duty. Accordingly, Industrial argues, because the duty to
15
To support their claim that the September 28, 1990 letter invoked a
duty to defend, Goodstein points to the fact that he mailed a similar letter
to other insurers and those insurers responded by sending Goodstein reser-
vation of rights letters. There is nothing in the record, however, to suggest
that those insurers also received letters similar to the October 20, 1990 let-
ter sent to Industrial.
15592 GOODSTEIN v. INDUSTRIAL INDEMNITY
defend never arose in the first place, Washington’s late notice
rule,16 under which an insurer must prove that the insured’s
delay in tendering the defense claim caused the insurer “ac-
tual and substantial prejudice” to avoid liability for defense
costs, does not apply.17 See Mutual of Enumclaw Ins. Co. v.
USF Ins. Co., 153 P.3d 877, 882 (Wash. Ct. App. 2007); see
also Pub. Util. Dist. No. 1 v. Int’l Ins. Co., 881 P.2d 1020,
1029 (Wash. 1994); Griffin, 29 P.3d at 782.
[16] Industrial’s argument is creative, but it cannot fly. As
an initial matter, Industrial cites no case law supporting the
notion that there is a meaningful distinction between a late
invocation of the duty to defend and a failure ever to invoke
that duty.18 That is probably because, as a matter of both
16
Industrial has stated specifically and repeatedly that it is not asserting
a late notice defense. In its brief to this court, Industrial declared that it
“was not asserting late notice as a defense to coverage, it was moving to
dismiss [the duty to defend claim] on the grounds that a defense was never
requested.” Similarly, Industrial informed the district court that it “ha[d]
not asserted late notice” as a defense to coverage in its summary judgment
motion.
17
We note that the prejudice requirement is not limited to circumstances
concerning late notice. Washington also, for instance, requires proof of
prejudice where the insurer asserts as a defense to liability that the insured
breached the policy’s cooperation clause, which precludes coverage where
the insured litigates or settled a lawsuit without involving the insurer. E.g.,
Ore. Auto. Ins. Co. v. Salzberg, 535 P.2d 816, 819 (Wash. 1975); see also
Pederson’s Fryer Farms, Inc. v. Transamerica Ins. Co., 922 P.2d 126, 131
(Wash. Ct. App. 1996) (stating general rule that “[e]ven where an insured
breaches the insurance contract, the insurer is not relieved of its duty to
pay unless it can prove actual and substantial prejudice caused by the
insured”). Industrial has not argued in this court that Goodstein breached
the cooperation clause, nor has it put forth a theory of prejudice arising
from such a breach. We therefore do not address the impact of the policy’s
cooperation clause. Should the issue be raised on remand, the district court
may, of course, address it.
18
Industrial’s argument is predicated on Unigard’s statement that to
invoke the duty to defend, “the insured must affirmatively inform the
insurer that its participation is desired.” 983 P.2d at 1160. Assuming that
the filing of this lawsuit somehow failed to satisfy that standard, Unigard
GOODSTEIN v. INDUSTRIAL INDEMNITY 15593
Washington law and of simple logic, it makes no sense to say
that a duty to defend was never invoked when, as here, the
insured has sued the insurer for a breach of the duty to defend.
The filing of the lawsuit itself constitutes a request for pay-
ment of defense costs under the policy,19 and at that point, the
late notice rule applies.
The logic of a recent Washington Court of Appeals case
illustrates the point by analogy. In Mutual of Enumclaw, 153
P.3d 877, the insured was sued for construction defects. The
insured tendered indemnification and defense claims to two
insurance companies (collectively “Enumclaw”), but specifi-
cally decided not to tender the claims to a third (“USF”). Id.
at 879-80. Enumclaw then settled the lawsuit. Id. at 880. As
part of the settlement, the insured assigned its rights under all
other policies to Enumclaw. Id.
Enumclaw later discovered the USF policy and sued USF
for contribution. Id. The trial court granted summary judg-
ment for USF, holding that USF was “excused from its duty
to perform under its policy or to contribute to a settlement
procured by a coinsurer,” because the insured had affirma-
tively chosen not to tender the claim to USF. Id. The Wash-
ington Court of Appeals reversed, holding that Enumclaw,
standing in the shoes of the insurer, could invoke the late ten-
der rule through the instant lawsuit. Id. at 878, 881-82. Conse-
quently, the court held, USF would be liable to contribute
does not support the notion that Industrial can avoid liability without prov-
ing prejudice. After the quoted statement, the Unigard court went on to
engage in prejudice analysis, id. at 1161-63, which suggests that even if
the insured does not affirmatively inform the insurer that a defense is
desired, the insurer remains liable for the breach of the duty to defend
absent proof of “actual and substantial prejudice.” See Enumclaw, 153
P.3d at 882.
19
Industrial has not argued in this court that the government’s conduct
related to the polluted properties did not constitute a “suit,” and we there-
fore do not consider the issue here.
15594 GOODSTEIN v. INDUSTRIAL INDEMNITY
unless it could prove actual and substantial prejudice. Id.
Enumclaw’s logic dictates that even if a claim for defense
costs is never made until after the lawsuit is settled, and even
if that claim is asserted in the form of a coverage suit rather
than by a letter to the insurer demanding a defense or submit-
ting defense costs, the insurance company is still liable for the
defense costs absent evidence of substantial prejudice.
[17] Accordingly, the fact that Goodstein may never have
tendered a defense request to Industrial before filing this law-
suit20 does not relieve Industrial of its obligation to prove prej-
udice.
20
We note that even if Goodstein can show a breach of the duty to
defend upon remand, he will not be able to recover as damages the amount
by which the property value was depressed due to its polluted state. “[T]he
well-accepted measure of damages for a good faith, but unjustified breach
[of the duty to defend is] the costs and reasonable attorneys’ fees incurred
by the insured in defending itself plus consequential damages that the
insured incurred as a result of the breach.” Underwriters at Lloyds v.
Denali Seafoods, Inc., 927 F.2d 459, 464 (9th Cir. 1991) (applying Wash-
ington law). The discounted price Goodstein received for selling the land
“as is” cannot possibly be considered to have been caused by Industrial’s
failure to defend. And, given our conclusion that Goodstein did not invoke
the duty to defend until he filed this lawsuit, well after the sale of the pol-
luted properties was completed, the decision to sell for a depressed price
cannot be traced to any breach of the duty to defend either. Goodstein’s
diminution in value loss, then, did not come about as “a result of the
breach” and is not recoverable as damages for the alleged breach of the
duty to defend. See id.
If Goodstein can establish a breach of the duty to defend upon remand,
consequently, he will be able at most to recover as damages any pre-
transfer costs incurred in defending, including, for example, costs incurred
in investigating the environmental contamination such as hiring an expert
to assess the pollution. See Unigard, 983 P.2d at 1159 & n.9; cf. Truck Ins.
Exch. v. VanPort Homes, Inc., 58 P.3d 276, 281 n.5 (Wash. 2002) (“An
insurer may be responsible for defense costs prior to tender.”).
GOODSTEIN v. INDUSTRIAL INDEMNITY 15595
3. Prejudice
[18] Industrial cannot establish prejudice as a matter of law
on the record before us. The existence of prejudice is a ques-
tion of fact, Tran v. State Farm Fire & Cas. Co., 961 P.2d
358, 365 (Wash. 1998), as to which the insurer “has the affir-
mative burden of proof,” Pulse v. Nw. Farm Bureau Ins. Co.,
566 P.2d 577, 579 (Wash. Ct. App. 1977). To establish preju-
dice, Washington courts “reject speculation, and require evi-
dence of concrete detriment resulting from delay, together
with some specific harm to the insurer caused thereby.” Can-
ron, Inc. v. Fed. Ins. Co., 918 P.2d 937, 941 (Wash. Ct. App.
1996); see also Unigard, 983 P.2d at 1161 (“To establish
actual prejudice, the insurer must demonstrate some concrete
detriment, some specific advantage lost or disadvantage cre-
ated, which has an identifiable prejudicial effect on the insur-
er’s ability to evaluate, prepare or present its defenses to
coverage or liability.”).
[19] Industrial has never articulated any theory of prejudice
in this action, nor has it proffered any evidence in support of
such a defense. Instead, it points to the fact that Washington
courts have, on occasion, found prejudice as a matter of law
and suggests we do the same.21 See, e.g., Nw. Prosthetic v.
Centennial Ins., 997 P.2d 972, 975-96 (Wash. Ct. App. 2000);
Unigard, 983 P.2d at 1163; see also Twin City Fire Ins. Co.
v. King County, 749 F. Supp. 230, 233-34 (W.D. Wash.
1990), aff’d, 942 F.2d 794 (9th Cir. 1991) (unpublished).
Such cases are not the norm, however — they are “extreme
21
Washington state courts sometimes refer to the existence of a pre-
sumption of prejudice, citing Felice v. St. Paul Fire & Marine Ins. Co.,
711 P.2d 1066 (Wash. Ct. App. 1985). See, e.g., Pub. Util. Dist. No. 1, 881
P.2d at 1029. However in Felice, the court did not merely presume preju-
dice but found actual prejudice, because the insured had already pro-
ceeded to trial before informing the insurance company. Felice, 711 P.2d
at 1071 (“This actually prejudiced [the insurer] because it precluded the
opportunity to evaluate the facts and determine whether a trial and
expenses for an appeal were warranted.”).
15596 GOODSTEIN v. INDUSTRIAL INDEMNITY
cases.” Pub. Util. Dist. No. 1, 881 P.2d at 1029; Pulse, 566
P.2d at 579; see also Pederson’s Fryer Farms, Inc. v. Trans-
america Ins. Co., 922 P.2d 126, 132 (Wash. Ct. App. 1996)
(recognizing that “Washington courts have found prejudice as
a matter of law in only a few cases”).
Moreover, even in these “extreme” cases the Washington
courts engaged in a close evaluation of the specific injury
alleged by the insurer, such as the loss of opportunity to
mount a viable defense or the loss of opportunity to investi-
gate a questionable claim against the insured, before conclud-
ing that prejudice existed as a matter of law. See Nw.
Prosthetic, 997 P.2d at 973, 976 (finding prejudice estab-
lished as a matter of law where insured settled a debatable
defamation claim before the insurer had a meaningful oppor-
tunity to investigate it, and the settlement was “achieved by
parties who shared an interest in characterizing the $325,000
payment as defamation damages,” because that was the only
claim covered under the policy); Unigard, 983 P.2d at 1161-
63 (concluding insurer established prejudice as a matter of
law where insurer lost the opportunity to mount the defense
that its insured was not a strictly-liable “former operator” of
contaminated site, which could have been based on insured’s
own statement that he had no “operations or involvement” in
the site); see also Tran, 961 P.2d at 365-66 (finding actual
prejudice as a matter of law where insured’s refusal to provide
financial documents containing material information not
available from any other source prevented the insurer from
being able to investigate the possibility that the insured’s
claim was fraudulent). Industrial has not asserted that any
similar situation existed here.
Indeed, Washington has expressly refused to find prejudice
as a matter of law in an environmental cleanup case where
because of late notice the polluted property was investigated,
assessed by experts, and completely remediated without the
insurer’s participation. Pederson’s Fryer Farms, 922 P.2d at
130-32. The court in Pederson’s Fryer Farms denied Trans-
GOODSTEIN v. INDUSTRIAL INDEMNITY 15597
america’s motion for directed verdict on the prejudice issue
because “Transamerica fail[ed] to indicate how this delay
hampered its ability to investigate, evaluate or defend against
the State’s assertion that Pederson’s was required to remedy
the contamination.” Id. at 132. Moreover, “Pederson’s did not
deprive Transamerica of its right to control the litigation, as
no action was filed against Pederson’s.” Id. Finally, the court
rejected Transamerica’s argument that it could have disputed
Pederson’s liability for the cleanup costs because there was no
evidence even arguably falling within any of the narrow
exceptions to the Model Toxic Act’s strict liability provisions.
Id. at 132-33. As in Pederson’s Fryer Farms, there is no evi-
dence in the record of this case suggesting Industrial could
have taken any steps to mitigate or dispute Goodstein’s liabil-
ity for the pollution, or that Industrial was in any other way
damaged by Goodstein’s alleged breach.
[20] In sum, Industrial has in its motion for summary judg-
ment fallen short of meeting its burden to warrant judgment
as a matter of law on the duty to defend claim. It has failed
to demonstrate that this is such an “extreme” case that the
prejudice determination should not be decided by a jury, as it
normally is under Washington law. Indeed, Industrial has
failed to articulate any theory at all by which it could be said
to have suffered actual and substantial prejudice due to Good-
stein’s alleged breach of its obligations under the policy.
[21] We therefore reverse the district court’s grant of sum-
mary judgment for Industrial on the duty to defend claim, as
Goodstein invoked the duty by filing this lawsuit for damages
and Industrial has failed to establish that it was prejudiced as
a matter of law by Goodstein’s late notice of the claim. We
emphasize that we express no view on the merits of the duty
to defend cause of action, including whether there was a duty
to defend at all on these facts and whether, if so, any damages
were incurred for its breach.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2897040/ | NO. 07-07-0245-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JULY 9, 2008
______________________________
IN RE R. WAYNE JOHNSON, RELATOR
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
ON PETITION FOR WRIT OF MANDAMUS
          Relator R. Wayne Johnson seeks a writ of mandamus directed at respondent,
Honorable Ruben Reyes, Judge of the 72nd District Court of Lubbock County. Relatorâs
petition asks that we direct Judge Reyes to set aside an order entered in Cause No. 2007-538,138, dismissing relatorâs suit because he failed to obtain permission of the local
administrative judge before filing suit.
          A writ of mandamus is a judicial writ directed at an individual, official, or board, to
whom it is addressed, to perform some specific legal duty to which the relator is entitled
under legal right to have performed. Crowley v. Carter, 192 S.W.2d 787, 790
(Tex.Civ.App.âFort Worth 1946, no writ). To be entitled to mandamus relief, a petitioner
must show that: (1) the trial court clearly abused its discretion; and (2) the relator has no
adequate remedy by appeal. In re McAllen Medical Center Inc., No. 05-0892, 2008 WL
2069837 (Tex. May 16, 2008), citing In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex.2004). A mandamus proceeding is not to be used as a substitute for an ordinary
appeal. See Hooks v. Fourth Court of Appeals, 808 S.W.2d 56, 59-60 (Tex. 1991) (orig.
proceeding) (a mandamus proceeding may not be used to bypass the appeals process).
It is an extraordinary remedy available only in limited circumstances, and not for grievances
that may be addressed by other remedies such as an appeal. Walker v. Packer, 827
S.W.2d 833, 840 (Tex. 1992) (orig. proceeding); In re Certain Underwriters at Lloydâs, 106
S.W.3d 332, 333 (Tex.App.âDallas 2003) (orig. proceeding).
          On a previous occasion, we denied a petition for mandamus relator filed, in which
he sought relief from a similar order dismissing a suit because of his failure to obtain the
permission of the local administrative judge as required by § 11.102 of the Civil Practice
and Remedies Code. In re Johnson, No. 07-04-0416-CV, 2004 WL 1879652
(Tex.App.âAmarillo Aug. 23, 2004) (orig. proceeding). One of our reasons for denying
mandamus relief was that relator had an adequate remedy by appeal from the dismissal
order. Id.
          In his present petition, relator points out that the trial courtâs order of which he
complains dismissed his suit âwithout prejudice.â He cites Mossler v. Shields, 818 S.W.2d
752 (Tex. 1991) and Lentworth v. Trahan, 981 S.W.2d 720 (Tex.App.âHouston [1st Dist.]
1998 no pet.), for the proposition that dismissal of a case with prejudice is an adjudication
on the caseâs merits. He also cites us to cases holding that interlocutory orders are not
appealable absent explicit statutory provision. E.g., Kaplan v. Tiffany Development Corp.,
69 S.W.3d 212, 217 (Tex.App.âCorpus Christi 2001, no pet.). From this case law, relator
reasons that the trial courtâs order dismissing his suit without prejudice was not appealable,
making mandamus relief available. The reasoning is faulty.
          Relator is correct that we generally have appellate jurisdiction only over appeals
from final judgments, and interlocutory orders may be appealed only if permitted by statute.
Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); Jack B. Anglin Co., Inc. v.
Tipps, 842 S.W.2d 266, 272 (Tex. 1992). A judgment that disposes of all pending parties
and claims in the record is final for purposes of appeal. Lehmann, 39 S.W.3d at 195. This
is true even though it may not be final for other purposes, such as res judicata. Id.
Here,
there appears no dispute that the trial courtâs order dismissed all relatorâs claims against
all parties. Accordingly, the order was final and appealable. Id. That the dismissal was
âwithout prejudiceâ to relatorâs refiling the case with permission of the local administrative
judge did not make it a nonappealable interlocutory order. See Childers v. Advanced
Foundation Repair, L.P., 193 S.W.3d 897, 898 (Tex. 2006) (per curiam) (judgment
dismissing claims without prejudice held final and appealable).
          Because he could have attacked the validity of the order through the appeal
process, we find that relator had an adequate remedy by law. Relator has the burden to
show entitlement to the relief being requested. See generally Johnson v. Fourth Court of
Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding). Because relatorâs petition
does not demonstrate that he had no adequate remedy by law, his petition is insufficient
to establish his entitlement to mandamus relief.
          Moreover, relatorâs argument the trial court abused its discretion by dismissing his
case is founded on the contention that it violated his rights under the Due Process Clause
of the Fourteenth Amendment. U.S. Const., amend. XIV. Relatorâs suit was dismissed
under our statutory provisions addressing litigation brought by persons who have been
determined to be vexatious litigants. Tex. Civ. Prac. & Rem. Code Ann. §§ 11.001, et seq.
(Vernon 2002). Courts have upheld our stateâs vexatious litigant statute, and similar
statutes in other states, against constitutional claims like those relator asserts. See
Leonard v. Abbott, 171 S.W.3d 451 (Tex.App.âAustin 2005, pet. denied) (rejecting
constitutional challenges including due process claim based on vagueness); Wolfe v.
George, 385 F. Supp. 2d 1004, 1013-16 (N.D. Cal. 2005), affâd 486 F.3d 1120 (9th Cir. 2007)
(upholding Californiaâs very similar vexatious litigant statute against constitutional
challenges including due process and equal protection); Wolfgram v. Wells Fargo Bank,
61 Cal. Rptr. 2d 694 (1997), cert. denied 522 U.S. 937, 118 S. Ct. 347, 139 L. Ed. 2d 270
(rejecting due process challenge to prefiling order). See also Carson v. Johnson, 112 F.3d
818, 821-22 (5th Cir. 1997) (rejecting equal protection and due process challenges to the
federal âthree strikesâ provision, which requires advance permission for the filing of suits
by prisoners proceeding In Forma Pauperis who have previously filed three or more
frivolous suits).
          For both these reasons, we deny relatorâs petition for writ of mandamus.
Â
Â
                                                                           James T. Campbell
                                                                                    Justice
         Â
ked="false" Priority="65" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium List 1 Accent 6"/>
NO. 07-10-00205-CV
Â
IN THE COURT OF APPEALS
Â
FOR THE
SEVENTH DISTRICT OF TEXAS
Â
AT
AMARILLO
Â
PANEL A
Â
AUGUST
15, 2011
Â
Â
HAROLD F. EGGERS, JR., APPELLANT
Â
v.
Â
JOHN TOWNES VAN ZANDT, II, WILLIAM VINCENT VAN ZANDT, K. B. V. Z., A MINOR
BY AND THROUGH HER NEXT FRIEND JEANENE VAN ZANDT, JEANENE VAN ZANDT, AND TVZ
RECORDS, LLC, APPELLEES
Â
Â
FROM THE 345TH DISTRICT COURT OF
TRAVIS COUNTY;
Â
NO. D-1GN-06-01169; HONORABLE GISELA D. TRIANA-DOYAL, JUDGE
Â
Â
Before CAMPBELL
and HANCOCK and PIRTLE, JJ.
Â
Â
MEMORANDUM OPINION
Â
           Appellant
Harold F. Eggers, Jr. sought to proceed on appeal without advance payment of
costs by filing an affidavit of indigence.Â
Appellees[1]
contested the affidavit and the trial court sustained the contest. On Eggers appeal, we find the trial court
did not abuse its discretion by sustaining the contest, and will affirm its
order.
Background
           The
Van Zandts sued Eggers for declaratory relief and damages on claims arising
from the ownership of rights to sound recordings of the late musician, John
Townes Van Zandt. The case was tried to
a jury which found in favor of the Van Zandts.Â
The court signed a money judgment on December 15, 2009.[2]Â Following the completion of trial but before
judgment, Eggers filed for relief under Chapter 13 of the United States
Bankruptcy Code.[3]Â His Chapter 13 plan was confirmed by order of
the bankruptcy court.
Meanwhile, Eggers filed a notice of
appeal of the December 2009 judgment in the underlying case. He qualified for pro bono appellate
representation by a volunteer attorney through a program of the Appellate Law
Section of the State Bar of Texas. At
the hearing on appellees contest, Eggers testified the estimated total cost of
the reporterÂs record and the clerkÂs record is $8,500. EggerÂs pro bono counsel testified neither he
nor his firm agreed to advance or pay Eggers costs on appeal. The trial court sustained the contest and
Eggers challenges the order through this separate appeal. For this appeal, we ordered preparation of a
record limited to the indigence proceedings.[4]Â Findings of fact and conclusions of law were
not requested or filed.[5]
Analysis
Eggers presents one issue through
which he argues the trial court abused its discretion in sustaining appelleesÂ
contest. In support, he specifically
contends his evidence of entitlement to veterans disability benefits was prima
facie proof of indigence which went unrebutted; his affidavit and hearing
evidence established indigence; and his qualification for pro bono
representation through the volunteer attorney program established indigence Âas
a matter of law.Â
On appeal of an order sustaining a
challenge to an affidavit of indigence, we review the trial courtÂs ruling
under the abuse of discretion standard. White v. Bayless, 40 S.W.3d 574, 576
(Tex.App.--San Antonio 2001, pet. denied).Â
A trial court abuses its discretion if it acts without reference to any
guiding rules or principles; in other words, we must decide whether the
decision of the trial court was arbitrary or unreasonable. Downer
v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).Â
ÂA party who cannot pay the costs in
an appellate court may proceed without advance payment of costs if the party
files an affidavit of indigence in compliance with [Rule of Appellate Procedure
20.1]; the claim of indigence is not contestable, is not contested, or, if
contested, the contest is not sustained by written order; and the party timely
files a notice of appeal.ÂÂ Tex. R. App.
P. 20.1(2). When a contest is filed, it
is the burden of the party filing an affidavit of indigence to prove the
affidavitÂs allegations. Tex. R. App. P.
20.1(g). ÂThe test for determining
indigence is straightforward: Does the record as a whole show by a
preponderance of the evidence that the applicant would be unable to pay the
costs, or a part thereof, or give security therefor, if he really wanted to and
made a good-faith effort to do so?ÂÂ Higgins v. Randall County SheriffÂs Office,
257 S.W.3d 684, 686 (Tex. 2008) (internal quotation marks omitted, citing Pinchback v. Hockless, 139 Tex. 536,
539, 164 S.W.2d 19, 20 (Tex. 1942)).Â
Receipt of Veterans Disability
Payments
Eggers testified he is a military
veteran and has received veterans disability benefits since 1972. His initial 10 percent permanent disability
rating was later increased to 50 percent.Â
According to Eggers, he receives disability benefits for anxiety and a
retention disorder. He added that his
retention capacity is Âalmost gone.Â
Rule of Civil Procedure 145,
governing affidavits of indigency in the trial courts, defines a Âparty who is
unable to afford costs as Âa person who is presently receiving a governmental
entitlement based on indigency or any other person who has no ability to pay
costs. Tex. R. Civ. P. 145. In cases
under former Rule 40 of the Rules of Appellate Procedure, courts also found
that indigence was demonstrated by a showing of dependence on public
assistance. See Griffin Indus. v.
Thirteenth Court of Appeals, 934 S.W.2d 349, 351 (Tex. 1996). ÂThe fact that any individual is dependent
upon the charity of the public afforded through the various welfare programs
is, by itself, prima facie evidence that the person is financially unable to
pay the court costs or give security therefor.ÂÂ
Id. (quoting Goffney v. Lowry, 554 S.W.2d 157, 159-60
(Tex. 1977)).
Recently, the Supreme Court of Texas
has pointed out that the current appellate procedure rule on indigency in civil
cases, Rule 20.1, Âdoes not contain the broad definition found in Civil Rule
145. In re C.H.C., 331 S.W.3d 426, 430 n.7 (Tex. 2011). The court went on to state that the case
before it did not require a determination Âwhether the standard mentioned in Griffin and present in Civil Rule 145
also applies to our new Appellate Rule 20.1. Id.
A claim for veterans disability
benefits requires establishment of five elements: (1) veteran status; (2)
existence of a disability; (3) service connection of the disability; (4) degree
of disability; and (5) effective date of the disability. Maggitt
v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); see 38 U.S.C.A. § 1110 (West 2002) (setting forth the basic
requirements for compensation for a disability resulting from active military
service during a period of war); 38 U.S.C.A. § 1131 (West 2002) (setting forth
the basic requirements for a disability resulting from active military service
during other than a period of war). The
veteran must have been Âdischarged or released under conditions other than
dishonorable. 38 U.S.C.A. § 1110; 38
U.S.C.A. § 1131.Â
For demonstrating indigence based on
receipt of public assistance or charity, we find a material distinction between
dependence on a public charity and dependence on disability benefits. Receipt of need-based public assistance means
the party asserting indigence on appeal has met the qualifying standard of a
government agency or program for receipt of need-based benefits. Cf.
Tex. R. App. P. 20.1(a)(1) (affidavit of party meeting ruleÂs criteria,
including screening and rescreening by designated programs, may not be contested). Civil Rule 145 speaks of Âgovernmental
entitlement based on indigency. Tex. R. Civ. P. 145. Entitlement to veterans disability benefits
is not based on the applicantÂs indigency.Â
Assuming the standard previously
noted in Griffin and Rule of Civil
Procedure 145 also applies to Rule of Appellate Procedure 20.1, a question we
also need not address, we conclude Eggers did not make prima facie proof of
indigence merely by proving his receipt of veterans disability benefits.
Proof of Indigence by Affidavit and
Hearing Evidence
At the hearing on appellees contest,
Eggers presented evidence of his financial condition. His veterans disability payment amounts to
$770 per month. He also earns $150 per week
straightening displays for an Austin newspaper.Â
For nine weeks during 2009, he did Âcomputer work for an
individual. He was terminated from this
position, however, as he was unable to perform the work. Between the computer work and his newspaper
position, Eggers earned $6,600 in 2009.Â
At the conclusion of the hearing, Eggers was permitted to address the
court. In his narrative, among other
things Eggers explained, ÂIÂm in the music business. We work on spec. He added that he makes Ârecord deals which
require three years to complete. Â
Eggers owns a condominium, free of
encumbrance, which he valued at $63,000.Â
He testified this property was originally purchased with proceeds of a
loan made by his parents and was at times titled to his parents or his sister
to prevent him from selling or encumbrancing the dwelling. Eggers owns a 2003 Toyota Matrix
automobile. The vehicle has been driven
130,000 miles and requires repairs he said would cost in the Ârange of two thousand
dollars.ÂÂ He also expressed the opinions
his assets[6]
are Âreally not worth anything, and any attempted sale would require approval
of the bankruptcy court. Eggers
testified his monthly income is $1,370.
Eggers affidavit listed monthly
expenses totaling some $1325.Â
Additionally, Eggers monthly plan payment in bankruptcy is
$201.88. At the time of the hearing,
Eggers had not been ordered to make regularly scheduled child support payments
for his minor son nor did he voluntarily make such payments.
Eggers bankruptcy schedules were
appended to his affidavit of indigence. Â There, he itemized his personal property and
valued it collectively at $33,556.17. He
listed Âaccounts receivable described as Â[m]onies owed by TVZ records as a
property item. He valued the receivables
at $15,269.[7]Â Eggers listed a Â50% interest in copyrights
to Townes Van Zandt recordings[,] Townes Van Zandt CD documentary [, and]
Richard Dobson CD--Mankind.ÂÂ According
to the schedule, Eggers does not have an appraisal of these assets but values
them at $1,000. Eggers listed an
interest in ÂDonovan/Eggers Music, with the explanation Âno present income,Â
and an interest in a book valued at Â$200/year for 10 years/$100 year for 20
years.ÂÂ Eggers values these two assets
at $2,000 apiece although he testified neither is Âworth anything and the book
Âhad already had its day.Â
           There
was no evidence Eggers attempted to raise cash from his personal property for
payment of the reporterÂs record. While
the overarching fact that Eggers is a Chapter 13 debtor sounds generally
synonymous with insolvency, specific facts demonstrating how his Chapter 13
plan could stymie an effort to generate funds for payment of the record, either
by asset liquidation or obtaining credit, were not presented to the trial
court. Along with Eggers testimony
attributing little or no value to his business assets, the trial court also was
faced with his bankruptcy schedules in which he swore to the values we have
noted.Â
           As
appellees point out, Eggers owns a condominium and personal property he valued
in excess of $33,000. Even with his
Chapter 13 plan payment, Eggers presents a positive monthly cash flow and
offered no proof why some of his monthly expenses could not be further
reduced. Cf. Morris v. Aguilar, No. 03-08-0078-CV, 2010 Tex. App. Lexis 5365,
at *9-*11 (Tex.App.--Austin July 9, 2010, pet. filed) (questioning why
appellant and her husband could not further reduce expenses, including some
related to husbandÂs deafness, and holding trial court did not abuse its
discretion in denying free record on appeal even though appellant presented a
negative monthly cash flow).Â
The trial court was the sole judge of
the credibility of the witnesses and the weight assigned their testimony. In re
T.E.G., 222 S.W.3d 677, 679 (Tex.App.--Eastland 2007, no pet.) (citing City of Keller v. Wilson, 168 S.W.3d
802, 821-28 (Tex. 2005)). There is no
abuse of discretion if the trial court bases its decision on conflicting
evidence and, as here, some evidence supports its decision. In re
Barber, 982 S.W.2d 364, 366 (Tex. 1998) (orig. proceeding). And we may not reverse the trial courtÂs
decision simply because we might have reached a different result. Downer,
701 S.W.2d at 242. We are unable to see
an abuse of discretion in the trial courtÂs evaluation of the evidence before
it. Tex. R. App. P. 20.1(g); Higgins, 257 S.W.3d at 686.
Participation in Pro Bono Program
Finally, Eggers asserts because he is
represented by pro bono counsel as part of the State Bar of Texas Appellate
SectionÂs pro bono program he is entitled to a free record as a matter of
law. Eggers concedes, however, this is
not the law. He nevertheless asks that
we extend the law so that he is accommodated.Â
The website of the Appellate Section
indicates it sponsors a pro bono pilot program in the Third Court of
Appeals. See http://www.tex-app.org/probono.php.Â
According to the Third Court of Appeals Pro Bono Pilot Program Pamphlet (09/01/07) (available at:
http://www.tex-app.org/pamphlet), the programÂs goal Âis to match clients who
are financially unable to obtain legal representation with volunteer lawyers
who agree to serve without expectation of compensation for their service.ÂÂ A party with retained counsel in the trial
court may qualify for the program if he can no longer afford an attorney. A Âsignificant factor in qualifying a
program applicant is his ability to pay for legal services although the
screening committee considers such other factors as current program case
volume, the number of available volunteer attorneys, and issues presented by
the appeal. The screening committee
applies 175% of the poverty guidelines published by the United States
Department of Health and Human Services as a benchmark for determining whether
an applicant qualifies for free legal services.Â
Of these facts concerning the pilot program, we take judicial notice on
our own initiative. See Tex. R. Evid. 201(b)(2), (c), (f) (at any stage of proceeding,
court in its discretion and on its own motion can take judicial notice of facts
capable of accurate and ready determination by resort to sources whose accuracy
cannot reasonably be questioned).
           Rule
of Appellate Procedure 20.1 provides in part:
If the appellant proceeded in the trial court without advance payment of
costs pursuant to a certificate under Texas Rule of Civil Procedure 145(c)
confirming that the appellant was screened for eligibility to receive free
legal services under income guidelines used by a program funded by Interest on
Lawyers Trust Accounts or the Texas Access to Justice Foundation, an additional
certificate may be filed in the appellate court confirming that the appellant
was rescreened after rendition of the trial court's judgment and again found
eligible under program guidelines. A partyÂs affidavit of inability accompanied
by the certificate may not be contested.
Tex. R. App. P. 20.1(a)(1). The record contains no indication Eggers
proceeded in the trial court without advance payment of costs under a Rule of
Civil Procedure 145(c) certificate.Â
There is also no indication the program through which Eggers was matched
with his appellate counsel is an Interest on Lawyers Trust Accounts program or
Texas Access to Justice Foundation program.Â
As is apparent, factors beyond poverty may favor an applicantÂs
acceptance by the pilot program. And we
are not shown that the income guidelines applied by the pilot program mirror
those of the programs Rule 20.1(a)(1) specifies. We conclude it is not possible to bring the
pro bono appellate representation the pilot program is providing Eggers within
the ambit of Rule 20.1(a)(1).[8]
In that regard, and
especially considering that Eggers appeal originated in the Third Court of
Appeals, we take note of that courtÂs opinion in Morris, 2010 Tex. App. Lexis 5365.Â
While the effect of participation in the Third Court of Appeals pro
bono pilot program was not at issue in Morris,
the appellant there testified that she and her husband qualified for the
program; yet, the appellate court affirmed the trial courtÂs order sustaining
the court reporterÂs contest of the appellantÂs affidavit of indigence. Morris,
2010 Tex. App. Lexis 5365, at *7, *11.
While we commend counselÂs
willingness to provide pro bono legal services for Eggers, and find the
Appellate SectionÂs pilot pro bono program laudable, we are not authorized to
stretch the bounds of Rule 20.1(a)(1) to include it.Â
           Finding
none of Eggers appellate contentions persuasive, we overrule his sole issue on
appeal.
Â
Â
Â
Conclusion
           Because
we find the trial court did not abuse its discretion in sustaining appelleesÂ
contest of Eggers affidavit of indigence and Eggers is not otherwise entitled
to a free record on appeal, we affirm the trial courtÂs order.Â
Â
Â
                                                                                               James
T. Campbell
                                                                                                           Justice
Â
Â
          Â
Â
[1] Eggers affidavit of indigence was challenged by the
court reporter, LaDelle Abilez, the plaintiffs in the underlying litigation
John Townes Van Zandt, II, William Vincent Van Zandt, Katie Belle Van Zandt, a
minor, by and through her next friend Jeanene Van Zandt, Jeanene Van Zandt, and
third-party defendant TVZ Records, LLC.Â
Throughout this opinion the contestants of Eggers affidavit of
indigence are collectively identified as Âappellees and the plaintiffs in the
underlying litigation are collectively identified as Âthe Van Zandts.Â
Â
[2] The Van Zandts suit against Eggers bore trial court
cause number D-1-GN-06-00169 in the 345th District Court of Travis County. In this court, its appeal carries appellate
case number 07-10-0109-CV.
Â
[3] 11 U.S.C. § 1301, et seq.
Â
[4] An appellate court may on its own initiative apply
Rules of Appellate Procedure 34.5(c)(1) and 34.6(d) to obtain preparation by
the clerk and court reporter of the portions of record necessary to review an
order denying indigence status. Â In re Arroyo, 988 S.W.2d 737, 739 (Tex.
1998) (orig. proceeding); Kastner v.
Texas Board of Law Examiners, No. 03-08-00515-CV, 2009 Tex. App. Lexis
6381, at *3 n.5 (Tex.App.--Austin August 12, 2009, no pet.) (mem. op.) (citing In re Arroyo); Tex. R. App. P. 34.5, 34.6.
[5] The present appeal and the underlying case were
transferred to this court from the Third Court of Appeals by docket
equalization order of the Supreme Court of Texas. See
Tex. GovÂt Code Ann. § 73.001 (West 2005).Â
[6] Apparently, excluding his condominium.
Â
[7] Also in a bankruptcy schedule, Eggers identified
ÂJeanene Van Zandt, et al (sic) as creditors of a disputed $300,000 claim
partially collateralized by monies ($15,269.17) owed him by TVZ Records. According to the judgment in the main case,
the trial court Âmade no determination concerning any offset or recoupment issues,
and the Parties are free to seek disposition of these issues in [EggersÂ]
bankruptcy proceeding.Â
[8] Rule of Appellate Procedure 2 authorizes us on motion
or our own initiative to suspend a ruleÂs operation in a particular case and
order a different procedure, Âto expedite a decision or for other good
cause. Tex. R. App. P. 2. We will not invoke Rule 2 here. | 01-03-2023 | 09-08-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/126876/ | 537 U.S. 1166
JIMENEZ-DOMINQUEZv.UNITED STATES.
No. 02-7976.
Supreme Court of United States.
January 21, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.
2
C. A. 9th Cir. Certiorari denied. Reported below: 296 F. 3d 863. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3231043/ | Appellee, by her next friend, recovered judgment against appellant for $300 on February 27, 1919. On April 17, 1919, the appellant (defendant in the court below) took an appeal from this judgment to this court, the cause being filed here on May 13, 1919. The case is still here upon certificate, and nothing further has been done to perfect the appeal.
Appellee now makes motion for an affirmance on certificate, and the cause is submitted on that motion.
A full compliance with Supreme Court rule 32 (Code 1907, p. 1514) is shown; therefore, the motion is well taken, and the judgment of the lower court is affirmed.
Affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2960786/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-15-00541-CV
In re Jason Childress
ORIGINAL PROCEEDING FROM COMAL COUNTY
MEMORANDUM OPINION
We deny relator’s “petition for writ of mandamus or prohibition” and accompanying
request for emergency relief. See Tex. R. App. P. 52.8(a), 52.10.
__________________________________________
Scott K. Field, Justice
Before Chief Justice Rose, Justices Pemberton and Field
Filed: September 18, 2015 | 01-03-2023 | 09-18-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1886044/ | 634 F. Supp. 409 (1986)
The UNITED STATES, Plaintiff,
v.
Stanley GORDON, Defendant.
No. 84-1-00074.
United States Court of International Trade.
April 25, 1986.
*410 *411 Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Washington, D.C., and Velta A. Melnbrencis, Civil Div., Dept. of Justice, New York City, for plaintiff.
Fronfield & deFuria (Leo A. Hackett, Media, Pa.), for defendant.
OPINION
RESTANI, Judge:
Plaintiff-United States alleges that defendant-Stanley Gordon unlawfully introduced an automobile, attempted to introduce a second automobile, and aided or abetted in the introduction of a third automobile, into the commerce of the United States,[1] in violation of 19 U.S.C. §§ 1481, 1484, 1485 and 1592.[2] Accordingly, plaintiff seeks to have judgment entered against defendant for monetary penalties as provided for in 19 U.S.C. § 1592 (1982).[3] An action is also apparently pending in federal district court, in which plaintiff seeks to have a penalty imposed on this same defendant for his involvement in these same allegedly unlawful importations and attempted importation, pursuant to 19 U.S.C. § 1595a(b).[4] In connection with discovery in the case at bar, plaintiff has served defendant with a request for production of documents and things and a request for *412 admissions, and has attempted to depose defendant. Defendant, asserting the fifth amendment privilege against compulsory self-incrimination, has failed to comply with the request for the production, has refused to respond substantively to the request for admissions and, beyond stating his present residence and address, has apparently refused to provide substantive answers to plaintiff's deposition questions. Before the court at this time is plaintiff's motion (1) to order defendant to (a) respond fully to plaintiff's first request for production; (b) respond fully to all questions posed by plaintiff at any deposition taken of the defendant; (c) reimburse plaintiff for actual out-of-pocket expenses in connection with the above-mentioned deposition and (2) to deem admitted the matters set forth in plaintiff's first request for admissions. The first issue to be addressed here is to what extent the fifth amendment privilege against self-incrimination may be raised in an action for penalties under 19 U.S.C. § 1592.
The fifth amendment to the United States Constitution states, in relevant part, that no person "shall be compelled in any criminal case to be a witness against himself." Congress intended that section 1592 provide a civil remedial sanction. See United States v. Murray, 5 CIT 102, 105-06, 561 F. Supp. 448, 453 (1983); United States v. Alcatex, Inc., 328 F. Supp. 129, 132-33 (S.D.N.Y.1971). Defendant here may still be within the scope of the fifth amendment's self-incrimination clause, however, because the Supreme Court has interpreted the privilege against compulsory self-incrimination as applying in actions other than those labeled as criminal prosecutions. Constitutional protections afforded criminal defendants may apply, despite Congress' intent to create a civil remedy, if the applicable sanctions are "so punitive either in purpose or effect as to negate that intention." United States v. Ward, 448 U.S. 242, 248-49, 100 S. Ct. 2636, 2641, 65 L. Ed. 2d 742 (citing Flemming v. Nestor, 363 U.S. 603, 616-21, 80 S. Ct. 1367, 1375-78, 4 L. Ed. 2d 1435 (1960)), reh'g denied, 448 U.S. 916, 101 S. Ct. 37, 65 L. Ed. 2d 1179 (1980). In addition, the privilege against compulsory self-incrimination may apply in an action that, although civil in form and not so punitive as to give rise to all criminal procedural safeguards, is "quasi-criminal" in nature. Ward, 448 U.S. at 251-54, 100 S.Ct. at 2642-44; see United States v. United States Coin & Currency, 401 U.S. 715, 721-22, 91 S. Ct. 1041, 1044-45, 28 L. Ed. 2d 434 (1971); Lees v. United States, 150 U.S. 476, 480-81, 14 S. Ct. 163, 164-65, 37 L. Ed. 1150 (1893); Boyd v. United States, 116 U.S. 616, 633-34, 6 S. Ct. 524, 534, 29 L. Ed. 746 (1886). Further, the privilege may apply even in a strictly civil (non "quasi-criminal") action where the testimony sought could subject the person questioned to criminal liability. See, e.g., Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S. Ct. 316, 322, 38 L. Ed. 2d 274 (1973) (citing McCarthy v. Arndstein, 266 U.S. 34, 40, 45 S. Ct. 16, 17, 69 L. Ed. 158 (1924)). In any case, the privilege may be invoked only if the threat of prosecution is "substantial and `real,' and not merely trifling or imaginary." Marchetti v. United States, 390 U.S. 39, 53, 88 S. Ct. 697, 705, 19 L. Ed. 2d 889 (1968) (citing Rogers v. United States, 340 U.S. 367, 374, 71 S. Ct. 438, 442, 95 L. Ed. 344, reh'g denied, 341 U.S. 912, 71 S. Ct. 619, 95 L. Ed. 1348 (1951); Brown v. Walker, 161 U.S. 591, 599-600, 16 S. Ct. 644, 647-48, 40 L. Ed. 819 (1896)).
This court has previously concluded that section 1592 is not "so punitive as to `transform what was clearly intended as a civil remedy into a criminal penalty.'" Murray, 5 CIT at 106, 561 F.Supp. at 453 (double jeopardy clause of fifth amendment not applicable in section 1592 action) (quoting Rex Trailer Co. v. United States, 350 U.S. 148, 154, 76 S. Ct. 219, 222, 100 L. Ed. 149 (1956)).[5] Thus, defendant is clearly not *413 entitled to the litany of protections afforded criminal defendants. A determination that section 1592 is "quasi-criminal," however, would place defendant within the scope of the fifth amendment's privilege against compulsory self-incrimination. See Ward, 448 U.S. at 253-54, 100 S.Ct. at 2643-44 (considering whether action was so far criminal in nature to give rise to fifth amendment protection against compulsory self-incrimination despite inapplicability of such protections as those of sixth amendment and double jeopardy clause of fifth amendment) (citing United States v. Regan, 232 U.S. 37, 50, 34 S. Ct. 213, 217, 50 L. Ed. 494 (1914) (fifth amendment privilege against compulsory self-incrimination broader than protections of article III and of sixth amendment)).
Defendant relies in large part on United States v. United States Coin & Currency, 401 U.S. 715, 91 S. Ct. 1041, 28 L. Ed. 2d 434 (1971), wherein the Supreme Court held the fifth amendment privilege against compulsory self-incrimination applicable in a civil forfeiture action. The statute at issue in U.S. Coin, 26 U.S.C. § 7302, provides that it is unlawful to possess property intended for use in violating provisions of the internal revenue laws and that "no property rights shall exist in any such property." A forfeiture action was instituted, pursuant to this statute, following defendant's conviction for both failing to register as a gambler with the Internal Revenue Service and failing to pay the related gambling tax. The Court stated that "`proceedings instituted for the purpose of declaring the forfeiture of a man's property by reason of offences committed by him, though they may be civil in form, are in their nature criminal' for Fifth Amendment purposes." 401 U.S. at 718, 91 S.Ct. at 1043 (quoting, with emphasis added, Boyd v. United States, 116 U.S. 616, 634, 6 S. Ct. 524, 534, 29 L. Ed. 746 (1886) (privilege against self-incrimination applicable in customs forfeiture action.)) In support of the conclusion that the statute in question did in fact target for forfeiture an individual's property "by reason of offences committed by him," the Court noted that remission was provided for in accordance with the customs laws. U.S. Coin, 401 U.S. at 721 & n. 8, 91 S.Ct. at 1045 & n. 8 (citing 26 U.S.C. § 7327). Thus, an "innocent owner" could seek remission from the Secretary of Treasury by proving that the "`forfeiture was incurred without willful negligence or without any intention on the part of the petitioner ... to violate the law....'" Id. at 721, 91 S.Ct. at 1045 (quoting 19 U.S.C. § 1618). The Court was convinced, therefore, that the forfeiture statute in question was "intended to impose a penalty only upon those who are significantly involved in a criminal enterprise." Id. at 721-22, 91 S.Ct. at 1045. As such, defendant could invoke the fifth amendment privilege against compelled self-incrimination.
The statutory provision for administrative remission referred to in U.S. Coin appears, along with section 1592, in Chapter 4 of Title 19 of the United States Code and is applicable to the imposition of a penalty under section 1592.[6] There are, however, several factors which distinguish the instant case from U.S. Coin. These distinguishing features become evident when U.S. Coin is read in the light of the Court's analysis in United States v. Ward, 448 U.S. 242, 100 S. Ct. 2636, 65 L. Ed. 2d 742 reh'g denied, 448 U.S. 916, 101 S. Ct. 37, 65 L. Ed. 2d 1179 (1980).
After determining that the statute in Ward was neither intended to impose a criminal sanction nor "so punitive either in purpose or effect to negate that intention," 448 U.S. at 248-49, 100 S.Ct. at 2641, the Court went on to consider whether the statute was "quasi-criminal," thereby affording defendant the privilege against *414 compulsory self-incrimination.[7] In this analysis, the Ward Court first noted three factors distinguishing the case from Boyd v. United States, 116 U.S. 616, 6 S. Ct. 524, 29 L. Ed. 746 (1886). First, the penalty of forfeiture in Boyd "had absolutely no correlation to any damages sustained by society or the cost of enforcing the law," 448 U.S. at 254, 100 S.Ct. at 2644, whereas the monetary penalty in Ward was "much more analogous to traditional civil damages." Id. Second, as compared to the forfeiture provision in Boyd, which was part of the same statutory section as the provision for imprisonment, the civil and criminal remedies in Ward were in separate statutes enacted seventy years apart. Id. Third, while in Boyd there was the danger that the appellant's testimony could prejudice him in future criminal proceedings, the statute in Ward specifically barred the use of statutorily mandated disclosures from use in any future criminal actions, other than in actions for perjury or for giving a false statement. Id. Finally, and of greater significance to the Ward Court than the three factors distinguishing Ward from Boyd, the Court found "overwhelming evidence" of a Congressional intent to create "a penalty civil in all respects and quite weak evidence of any countervailing purpose or effect." Id. The Court declined, therefore, to extend to respondent the fifth amendment privilege against compulsory self-incrimination.
The distinctions made by the Supreme Court of Ward and Boyd are helpful in the case at bar. First, in 1978, Congress changed the remedy for violation of section 1592 from one of forfeiture to imposition of monetary penalties. Pub.L. No. 95-410, Title I, § 110(a), 92 Stat. 888, 893-97 (1978); see S.Rep. No. 778, 95th Cong., 2nd Sess. 18-19, reprinted in 1978 U.S.Code Cong. & Ad.News 2211, 2230-31; United States v. One Red Lamborghini and One Black Lamborghini, 10 CIT ___, 625 F. Supp. 986, 989 & n. 6 (1986), appeal docketed, 86-1015 (Fed.Cir. Mar. 17, 1986). Thus, like the statute in Ward, section 1592 now more closely resembles "traditional civil damages" than do statutes, like those in U.S. Coin and Boyd, which provide for forfeiture. That the concerned statute provides for a monetary penalty rather than for forfeiture, however, is not enough to completely distinguish the holdings of U.S. Coin and Boyd. See Lees v. United States, 150 U.S. 476, 14 S. Ct. 163, 37 L. Ed. 1150 (1893) (fifth amendment privilege against self-incrimination applicable under statute imposing fixed monetary penalty). Second, like Ward, and unlike both Boyd and U.S. Coin, the criminal and civil remedies here are contained in separate statutes. This too, as in Ward, is evidence that the civil penalty is not "quasi-criminal." As to the third factor, unlike the statute in Ward, section 1592 contains no use immunity to prevent a defendant from prejudicing himself with respect to a future criminal prosecution. Nonetheless, the court places little emphasis on this fact, because the threat of future criminal prosecution may justify assertion of the fifth amendment privilege against self-incrimination even in a strictly civil proceeding. See, e.g., Lefkowitz, 414 U.S. at 77, 94 S.Ct. at 322. The question of whether section 1592 is "quasi-criminal" is separate and apart from the issue of whether defendant may incriminate himself under other criminal statutes.
The factor given most weight in Ward, Congress' intent to create a civil penalty, as opposed to the statute's "countervailing punitive purpose or effect," 448 U.S. at 254, 100 S.Ct. at 2644 (emphasis added), is instructive in the case at bar. Section 1592 can be said to have, to some degree, a punitive effect. First, the penalty imposed under section 1592 differs with the degree of scienter or culpability of the *415 defendant. See supra note 3. This link between the degree of culpability and the penalty imposed is essential to retribution, a principle of punishment rather than of civil damages. See Wheeler, The Constitutional Case for Reforming Punitive Damages Procedures, 69 Va.L.Rev. 269, 338 (1983) (citing I. Kant, The Philosophy of Law 194-98 (W. Hastie Trans. 1887); C.W.K. Mundle, Punishment and Desert in Philosophy of Punishment 65, 71-74 (H. Acton ed. 1969)); cf. Ward, 448 U.S. at 256-57, 100 S.Ct. at 2645 (Blackmun, J., concurring) (in deciding whether to classify statute as "quasi-criminal," discounted importance of scienter as factor because it was not mentioned on face of statute). In addition, a defendant in a section 1592 action may be forced to pay the greatest penalty applicable under that provision even if his unlawful conduct did not result in the loss of any revenue to the United States. See 19 U.S.C. § 1592(c) (1982) (supra note 3) (penalty for fraud may equal domestic value of merchandise regardless of duties lost). Furthermore, under 19 U.S.C. § 1592(d) (1982), any actual duties owing remain owing, whether or not a penalty is assessed.[8]Compare with Ward, 448 U.S. at 256, 100 S.Ct. at 2645 (Blackmun, J., concurring) (civil and compensatory nature of statute evidenced by provision that collected assessments be placed in revolving fund used to defray cleanup expenses); see Wheeler, 69 Va.L.Rev. at 338 (civil penalty based on harm caused is less likely to have punitive purpose than civil penalty based on culpability). The statute in question, therefore, appears to have, at least in part, a punitive "effect," whether or not Congress had that "purpose" in mind.
On the other hand, section 1592 has a remedial effect as well. Even prior to the 1978 amendment, this court pointed to the various costs of enforcing section 1592 and to the injury to the government of frustration of its policies through violations of the customs laws, and therefore characterized section 1592 forfeiture as a remedial measure akin to liquidated damages. Murray, 5 CIT at 106-07, 561 F.Supp. at 453 (quoting Alcatex, 328 F.Supp. at 132-33). This remedial function was bolstered by the amendment of section 1592 which, as noted, now links, under certain circumstances, the penalty imposed to the lawful duties of which the United States was deprived. That is, the maximum penalties vary in amount from the domestic value of the merchandise (for fraudulant violations), to the lesser of either a percentage of the domestic value of the merchandise or a multiple of the duties lost (for gross negligence and negligence).[9] 19 U.S.C. § 1592(c) (1982) (supra note 3).
Further, the legislative history makes clear that an important motivation for amending section 1592 was Congress' desire to alleviate the harsh consequences of the forfeiture penalty. The Senate report notes that a problem with the former section 1592 was that once having found a violation, the courts had no alternative but to order forfeiture. This penalty was thought too severe in many cases. S.Rep. No. 778 at 2, 1978 U.S.Code Cong. & Ad. News at 2213. Thus, the trier of fact may award penalties in an amount far below the maximum allowable, presumably based on any rational reason including the degree of damages sustained. By replacing forfeiture with varying monetary penalties, which are subject to reduction by the trier of fact and which, to varying degrees, will *416 relate to damages, Congress has made section 1592 largely remedial, rather than "punitive," both in "purpose" and "effect."[10]
As in Ward, there is strong evidence of Congressional intent to create a civil remedial penalty and a relatively weak punitive purpose or effect. When coupled with the relevant distinctions made in Ward of the statute at issue in Boyd, which distinctions have also been made with respect to section 1592, the court concludes that section 1592 is not "quasi-criminal."[11] Thus, defendant here can invoke the fifth amendment privilege against compulsory self-incrimination only if compelled testimony in the case at bar would threaten him with criminal prosecution in a separate action.
It is apparent that the only action in which defendant's testimony in the case at bar might be used against him is the suit, evidently pending in federal district court, brought by the United States under 19 U.S.C. § 1595a(b) (1982).[12] (supra note 4). As plaintiff points out, the legislative history to section 1595a(b) indicates that this provision was intended as a civil penalty. See S.Rep. No. 2326, 83rd Cong. 2d Sess. 6-7, reprinted in 1954 U.S.Code Cong. & Ad.News 3900, 3905-06 (eliminating criminal sanction as "practical duplication" of 18 U.S.C. § 545). The court's analysis of 19 U.S.C. § 1592 earlier in this opinion makes clear, however, that this does not end the court's inquiry. The court must determine whether the statute is "quasi-criminal" for fifth amendment self-incrimination purposes. See Ward, 448 U.S. at 253-54, 100 S.Ct. at 2643-44. Obviously, if defendant has a fifth amendment privilege applicable to testimony sought to be used against him in a section 1595a(b) action, absent use immunity, that privilege would be meaningless if he could be forced to surrender it here.
In upholding the constitutionality of a forfeiture action brought pursuant to subsection (a) of section 1595a, the Court of Claims noted that this subsection triggers fourth amendment protections and the fifth amendment privilege against compelled self-incrimination. Doherty v. United States, 500 F.2d 540, 544 (Ct.Cl.1974). Plaintiff challenges the applicability of this statement in Doherty to the case at bar on two grounds, neither of which the court finds persuasive. First, plaintiff notes that the privilege against self-incrimination was not raised in Doherty and, thus, that the court's statement regarding the privilege is *417 dicta. Although this characterization may be technically correct, the accuracy of the court's statement is supported by Supreme Court precedent. In One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S. Ct. 1246, 14 L. Ed. 2d 170 (1965), the Court was confronted with a statute which, although in the context of a liquor control law, like section 1595a(a), called for the forfeiture of vehicles used to effect the illegal transportation of articles. It was clear to the Court that forfeiture under the law in question was "a penalty for the criminal offense." Id. at 701, 85 S.Ct. at 1251. Following the lead of Boyd, supra, the Court held that the law was "quasi-criminal" and, as such, the exclusionary rule barred the admissibility, in the forfeiture proceedings, of evidence seized in violation of the fourth amendment. Id. at 700-02, 85 S.Ct. at 1250-51. Therefore, it is evident that Doherty's characterization of section 1595a(a), with respect to the fourth amendment, is accurate, and the court will impose no narrower construction on the fifth amendment privilege against compulsory self-incrimination. See Boyd, 116 U.S. at 634, 6 S.Ct. at 534 (fourth amendment protections and fifth amendment self-incrimination clause found applicable to forfeiture action). Therefore, the court follows the view expressed in Doherty that the fifth amendment self-incrimination clause applies to section 1595a(a).
Plaintiff's second challenge to the relevance of Doherty to the case at bar is that the action currently pending in district court against defendant is for a monetary penalty under section 1595a(b) rather than for forfeiture under section 1595a(a). Plaintiff argues, in essence, that the applicability of the self-incrimination clause to section 1595a(a) would be based on the propositions of law governing forfeitures, and, therefore, has no bearing on an action for a monetary penalty under section 1595a(b). As noted earlier, however, the Supreme Court has held the fifth amendment privilege against compulsory self-incrimination applicable to a statute calling for a fixed monetary penalty. Lees v. United States, 150 U.S. 476, 14 S. Ct. 163, 37 L. Ed. 1150 (1893).[13] Thus, that section 1595a(a) provides for forfeiture while section 1595a(b) provides for a monetary penalty is insufficient to distinguish the two provisions for purposes of applying the privilege against compulsory self-incrimination. Further, the relative severity of the respective penalties does not distinguish these two subsections as to the fifth amendment privilege. In fact, there is simply no way to tell, apart from the facts of a given case, whether the value of that which is forfeited under section 1595a(a) (anything from a donkey to a jet) will be greater or less than the monetary penalty imposed under section 1595a(b), which is determined exclusively by the value of the imported article(s). Furthermore, unlike section 1592, there is no provision for imposition of a lesser penalty by the court or jury. Thus, the trier of fact is precluded from considering the amount of damage suffered. Therefore, there appears to be no greater likelihood that the penalty imposed under section 1595a(b) will more closely approximate the costs of enforcement and the damage inflicted than will the penalty imposed under section 1595a(a).[14] Furthermore, the two subsections of section *418 1595a work together to punish those involved in illegal importations. Thus, apparently, one who hides illegal merchandise in a vehicle could forfeit the vehicle and be liable for the value of the hidden merchandise as well. Both provisions are part of a single statutory scheme intended to address illegal conduct.
Finally, the conclusion reached in U.S. Coin that the statute in question imposed a penalty "`by reason of offences committed by [an individual],'" 401 U.S. at 718 (quoting, with emphasis added, Boyd, 116 U.S. 616, 634, 6 S. Ct. 524, 534 (1886)), seems equally fitting to both subsections (a) and (b) of section 1595a. This conclusion is supported by the fact that, presumably, administrative remission under 19 U.S.C. § 1618 applies to section 1595a, where lesser degrees of scienter are involved, just as it applied to the statute in question in U.S. Coin. See supra note 5 and accompanying text. Unlike section 1592, section 1595a(b) raises no considerations which lessen the impact of this factor. The court is unable to discern any meaningful distinctions between the statute at issue in U.S. Coin and section 1595a, or between subsections (a) and (b) of section 1595a, with regard to the fifth amendment privilege against self-incrimination. The court must conclude, therefore, that section 1595a(b), like section 1595a(a), is a "quasi-criminal" sanction rather than a strictly civil remedial measure. As such, to the extent that defendant's testimony in the section 1592 action at bar presents a real and appreciable threat of prosecution under 19 U.S.C. § 1595a(b) (1982), defendant may invoke the privilege against compulsory self-incrimination.[15]
Plaintiff objects that, even if the fifth amendment privilege may be invoked in the case at bar, defendant has failed to raise it properly. A blanket refusal to comply with a request for production, to respond to questions raised at a deposition, or to respond to a request for admissions, is unacceptable. See General Dynamics Corp. v. Selb Manufacturing Co., 481 F.2d 1204, 1212 (8th Cir.1973), cert denied, 414 U.S. 1162, 94 S. Ct. 926, 39 L. Ed. 2d 116 (1974). Rather, "[t]he privilege must be asserted with respect to particular questions, and in each instance, the court must determine the propriety of the refusal to testify." Id. (citing Hoffman v. United States, 341 U.S. 479, 486, 71 S. Ct. 814, 818, 95 L. Ed. 1118 (1951)). Accordingly, the court directs defendant to specify, as to each question or request to which he objects, "the grounds for objection, and, wherever possible without self-incrimination, to what degree a responsive answer might have a tendency to incriminate [him]." Gatoil, Inc. v. Forest Hill State Bank, 104 F.R.D. 580, 582 (D.Md.1985) (citing de Antonio v. Solomon, 41 F.R.D. 447, 449-50 (D.Mass.1966)). Plaintiff may then file a motion to compel discovery if there is any further dispute as to defendant's right to invoke the privilege against self-incrimination, in the light of this court's holding regarding the limited applicability of the privilege to the case at bar.
Finally, plaintiff has moved for reimbursement of expenses incurred in the unsuccessful attempt to depose defendant and to have deemed admitted the matters set forth in plaintiff's first request for admissions. Although defendant has overstated the scope of the fifth amendment privilege and has invoked the privilege in an improper form, his conduct, thus far, does not warrant these sanctions.
In conclusion, defendant may invoke the fifth amendment privilege against compulsory self-incrimination in this section 1592 action only to the extent that his testimony presents a real and appreciable threat of prosecution under section 1595a(b). In addition, *419 to properly invoke the fifth amendment privilege, defendant must raise it in the manner described in this opinion.
NOTES
[1] The three automobiles in question have been identified by plaintiff, respectively, as a Morgan 4/4, chassis No. B3352, manufactured in 1974; a Morgan Plus 8, chassis No. R8300, manufactured in 1977; and a Morgan automobile, chassis No. B3977, manufactured in 1977.
[2] Briefly, each automobile was allegedly fitted with a plaque falsely fixing the year of manufacture as 1966, which allegedly facilitated importation without compliance with certain requirements of the National Traffic and Motor Safety Act of 1966, the Clean Air Act, and pertinent regulations implementing the two acts.
[3] 19 U.S.C. § 1592 (1982) provides in relevant part:
(a) Prohibition
(1) General Rule
Without regard to whether the United States is or may be deprived of all or a portion of any lawful duty thereby, no person, by fraud, gross negligence, or negligence
(A) may enter, introduce, or attempt to enter or introduce any merchandise into the commerce of the United States by means of
(i) any document, written or oral statement, or act which is material and false, or
(ii) any omission which is material, or
(B) may aid or abet any other person to violate subparagraph (A).
(2) Exception
Clerical errors or mistakes of fact are not violations of paragraph (1) unless they are part of a pattern of negligent conduct.
(c) Maximum penalties
(1) Fraud
A fraudulent violation of subsection (a) of this section is punishable by a civil penalty in an amount not to exceed the domestic value of the merchandise.
(2) Gross negligence
A grossly negligent violation of subsection (a) of this section is punishable by a civil penalty in an amount not to exceed
(A) the lesser of
(i) the domestic value of the merchandise, or
(ii) four times the lawful duties of which the United States is or may be deprived, or
(B) if the violation did not affect the assessment of duties, 40 percent of the dutiable value of the merchandise.
(3) Negligence
A negligent violation of subsection (a) of this section is punishable by a civil penalty in an amount not to exceed
(A) the lesser of
(i) the domestic value of the merchandise, or
(ii) two times the lawful duties of which the United States is or may be deprived, or
(B) if the violation did not affect the assessment of duties, 20 percent of the dutiable value of the merchandise.
[4] 19 U.S.C. § 1595a (1982) reads as follows:
§ 1595a. Forfeitures and other penalties
(a) Importation, removal, etc. contrary to laws of United States
Except as specified in the proviso to section 1594 of this title, every vessel, vehicle, animal, aircraft, or other thing used in, to aid in, or to facilitate, by obtaining information or in any other way, the importation, bringing in, unlading, landing, removal, concealing, harboring, or subsequent transportation of any article which is being or has been introduced, or attempted to be introduced, into the United States contrary to law, whether upon such vessel, vehicle, animal, aircraft, or other thing or otherwise, shall be seized and forfeited together with its tackle, apparel, furniture, harness, or equipment.
(b) Penalty for aiding unlawful importation
Every person who directs, assists financially or otherwise, or is in any way concerned in any unlawful activity mentioned in the preceding subsection shall be liable to a penalty equal to the value of the article or articles introduced or attempted to be introduced.
[5] Murray was decided under the language of section 1592 in effect prior to its amendment in 1978. Pub.L. No. 95-410, Title I, § 110(a), 92 Stat. 888, 893-97 (1978) (penalty of forfeiture replaced by varying monetary penalties). This amendment, however, is not of the type that would "transform" section 1592 into a criminal statute. If anything, the change makes section 1592 more akin to a purely civil statute. See infra discussion.
[6] In addition to its applicability in U.S. Coin, remission under § 1618 may be sought by a person interested in property "seized under the provisions of this chapter, [chapter 4Tariff Act of 1930]" or by a person "who has incurred, or is alleged to have incurred, any fine or penalty thereunder...." 19 U.S.C. § 1618 (1982 & Supp. II 1984).
[7] Under consideration in Ward was § 311(b)(6) of the Federal Water Pollution Control Act. 33 U.S.C. § 1321(b)(6). This section, which has since been amended, provided that "[a]ny owner or operator of any vessel, onshore facility, or offshore facility from which oil or a hazardous substance is discharged in violation of [the act] shall be assessed a civil penalty ... of not more than $5,000 for each offense." Id.
[8] The court notes, however, that punitive damages may be assessed in some purely civil suits in addition to compensatory damages, and that the amount of purely civil punitive damages, do not necessarily relate to the amount of injury suffered. See, e.g., City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 266-67, 101 S. Ct. 2748, 2759, 69 L. Ed. 2d 616 (1981) (punitive damages not intended to compensate injured party but rather to punish tortfeasor and deter similar conduct) (citing Restatement (Second) of Torts, § 908 (1979); W. Prosser, Law of Torts 9-10 (4th ed. 1971)).
[9] If a grossly negligent or negligent violation of the statute has no impact on the assessment of duties, the maximum penalty is measured by a percent of the dutiable value of the merchandise. 19 U.S.C. §§ 1592(c)(2), (3) (1982) (supra note 3).
[10] The remedial nature of § 1592 is also evidenced by its authorization, in limited circumstances, of seizure under subsection (c)(5). Seizure of the merchandise in question may be effected if there is reasonable cause to believe that a person has violated § 1592(a) and is insolvent or beyond the jurisdiction of the United States, or if other compelling reasons exist. If the merchandise is of the type which may be released into commerce, it is to be returned upon the making of a deposit. 19 U.S.C. § 1592(c)(5) (1982). Under this same provision, if the fine levied under § 1592(c) is not paid within the time specified by law the property may be "forfeited", although 19 U.S.C. § 1613(b) (1982 & Supp II 1984) calls for payback, after sale of such "forfeited" property, of any proceeds in excess of the penalty assessed. Thus, seizure and "forfeiture" here may be seen as part of the overall remedial scheme of § 1592, much like prejudgment attachment in other civil suits, rather than as a form of punishment for criminal conduct.
[11] One might argue that § 1592 should be analyzed in a piecemeal fashion, and that the fraud provisions are "quasi-criminal," while the negligence provisions are not. The court believes that, in order to determine Congressional intent, the statute must be viewed as a whole, inasmuch as Congress enacted the provisions together as part of one scheme for assessing civil penalties in certain circumstances.
[12] The court notes that defendant's alleged conduct is apparently actionable as a criminal offense under 18 U.S.C. § 545 (1982). Defendant has entered into a plea bargain agreement covering criminal charges brought under § 545 for two of the importations in question, however, and a § 545 action for the third importation would be barred by the statute of limitations. See 18 U.S.C. § 3282 (1982). Thus, defendant is in no danger of further prosecution under § 545 and, therefore, cannot invoke the fifth amendment privilege based on potential prosecution under that statute. Civil forfeiture under § 545 might be considered "quasi-criminal", but the statute of limitations has run on such an action, as well. 19 U.S.C. § 1621 (1982).
[13] The Supreme Court's adherence to this view is supported by its opinion in Ward. Although the Ward Court held the privilege inapplicable to the statute in question in that case, its reasoning went far beyond an assertion that the statute called for a monetary penalty rather than for forfeiture. 448 U.S. at 253-54, 100 S.Ct. at 2643-44 (see supra discussion).
[14] The court notes that there is a difference between the relative scope of these sections. Section 1595a(a) calls for the forfeiture of that which is used in any way to import, conceal, harbor, etc., articles unlawfully introduced into the United States. 19 U.S.C. § 1595a(a) (1982) (supra note 4). By comparison, section 1595a(b) imposes a monetary penalty, equal to the value of the imported article(s), on one who aids, or is in any way involved, in the unlawful conduct described in section 1595a(a). 19 U.S.C. § 1595a(b) (1982) (supra note 4). Certainly, this difference in scope cannot be the basis for holding the self-incrimination clause inapplicable to section 1595a(b), the broader of the two provisions.
[15] The court finds it premature to address what inferences might be drawn in the § 1592 action at bar from defendant's assertion of the fifth amendment privilege in this strictly civil action. See Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S. Ct. 1551, 1558, 47 L. Ed. 2d 810 (1976) (prison disciplinary proceeding) (quoting 8 J. Wigmore, Evidence 439 (McNaughton rev. 1961) (fifth amendment does not preclude negative inference "`where the privilege is claimed by a party to a civil cause'" (emphasis omitted)). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2883785/ | In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-08-00063-CV
______________________________
CAROLYN BERGIN, Appellant
V.
RANDY TAYLOR, Appellee
On Appeal from the 402nd Judicial District Court
Wood County, Texas
Trial Court No. 2007-173
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Carolyn Bergin, appellant, has filed with this Court a motion to dismiss her pending appeal
in this matter. See TEX . R. APP . P. 42.1(a). The motion is signed by Bergin, who is representing
herself pro se.
We grant Bergin's motion and dismiss the appeal.
Josh R. Morriss, III
Chief Justice
Date Submitted: July 1, 2008
Date Decided: July 2, 2008
2 | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2406770/ | 26 F. Supp. 2d 1128 (1998)
Joseph SCHULTZ, d/b/a Island Bar, and Tonya Norwood, Plaintiffs,
v.
THE CITY OF CUMBERLAND, Defendant.
No. 98-C-0107-C.
United States District Court, W.D. Wisconsin.
November 5, 1998.
*1129 *1130 *1131 *1132 *1133 Randall D.B. Tigue, Minneapolis MN, for Plaintiffs.
Brady C. Williamson, Lafollette & Sinykin, Madison WI, for Defendant.
OPINION AND ORDER
CRABB, District Judge.
In this civil action for declaratory and injunctive relief, plaintiffs challenge a municipal ordinance enacted by defendant City of Cumberland that establishes a comprehensive licensing and regulatory scheme for all "sexually oriented businesses." Among other things, the ordinance prohibits the depiction of "specified sexual activities" in a sexually oriented business and it bars anyone from appearing in a state of nudity in such a business. Also, the ordinance limits the hours that sexually oriented businesses may operate and prohibits anyone from operating or working in such a business without a valid license. Plaintiff Joseph Schultz is the sole proprietor of the Island Bar, an establishment located in the City of Cumberland that features live dancers, including plaintiff Tonya Norwood, who perform in a state of total nudity. Plaintiffs contend that numerous aspects of the ordinance violate their right to free speech or are unconstitutionally overbroad. Plaintiffs ask the court to declare the ordinance invalid and to enjoin defendant permanently from enforcing it. Defendant maintains that the ordinance is a content-neutral time, place and manner restriction designed to further defendant's substantial interest in reducing undesirable secondary effects associated with sexually oriented businesses.
The case is before this court on plaintiffs' motion for summary judgment and plaintiffs' motion to strike certain affidavits submitted by defendant. I conclude that by prohibiting the depiction of specified sexual activities and by prohibiting anyone from appearing in a state of nudity, the ordinance is unconstitutionally overbroad. These prohibitions could be applied just as easily to the Island Bar as they could to a commercial establishment featuring mainstream motion pictures or plays of unquestioned artistic merit in which there is a naked female breast or the depiction of two individuals engaging in sexual intercourse. Despite this potential, defendant has presented no evidence suggesting that prostitution, urban blight or other harmful secondary effects are associated with non-adult cinemas and theaters. I find *1134 also that the disclosure requirements for individuals applying for a license to work in a sexually oriented business are unconstitutional. These requirements are not narrowly tailored to serve defendant's interest in insuring that employees of sexually oriented businesses refrain from engaging in criminal activity; the ordinance does not contain adequate measures to protect the confidentiality of personal information disclosed by applicants. Finally, provisions in the ordinance that make obtaining a license to operate a sexually oriented business contingent upon passing a building inspection and being current on all taxes are not justified by any evidence. In all other respects, the ordinance withstands scrutiny. However, because the unconstitutionally overbroad provision cannot be severed from the ordinance or rewritten by the court, the ordinance as a whole will be declared unenforceable. Plaintiffs are entitled to summary judgment. Plaintiffs' motion to strike will be denied.
On a motion for summary judgment, the moving party must show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Oates v. Discovery Zone, 116 F.3d 1161, 1165 (7th Cir.1997). For the purpose of deciding this motion for summary judgment, I find from the parties' proposed findings of fact that there is no genuine dispute with respect to the following material facts.
UNDISPUTED FACTS
Plaintiff Joseph Schultz is proprietor of the Island Bar, located in Cumberland, Wisconsin. Plaintiff Tonya Norwood is employed at the Island Bar as an exotic dancer. Defendant City of Cumberland is a municipal corporation organized under the laws of the state of Wisconsin.
In 1994, defendant enacted an ordinance regulating nude dancing in establishments that serve alcohol on their premises. Plaintiff Schultz challenged the ordinance unsuccessfully. On October 12, 1994, the city revoked the Island Bar's liquor license after determining that improper sexual activity had occurred on the premises. Presently, the Island Bar features the sale of nonalcoholic beverages and live nude entertainment.
In 1997, the mayor of Cumberland, Lawrence Samlaska, learned about communities that were enacting ordinances to regulate sexually oriented businesses. In May 1997, the mayor directed the city planning commission to consider zoning aspects of such ordinances and to establish a subcommittee to coordinate the process of accumulating, disseminating and analyzing data relevant for drafting such an ordinance. The subcommittee convened its first meeting on July 2, 1997; it met ten times between July 1997 and January 1998. The subcommittee delegated specific areas of research and inquiry to individual committee members.
From the outset, the subcommittee relied on a model ordinance created by the National Family Legal Foundation. According to its mission statement, the foundation is dedicated to providing legal assistance and educational resources to communities interested in combating negative secondary effects associated with sexually oriented businesses. Also, subcommittee members reviewed similar ordinances enacted by other communities in Wisconsin and Minnesota. Some of these ordinances dealt solely with zoning, others only with licensing and still others incorporated both zoning and licensing characteristics. Subcommittee member Carolyn Burns spoke with the city attorneys in these communities and, in some instances, with others familiar with the problems associated with sexually oriented businesses. Burns told the rest of the subcommittee what she had learned from these conversations and from her review of two books: Local Regulation of Adult Businesses, by Jules Gerard, a professor of law at Washington University; and Protecting Communities from Sexually Oriented Businesses, by Len Munsil, a lawyer.
Mayor Samlaska provided information to the planning commission and subcommittee. He told these bodies about undercover police surveillance that had taken place at the Island Bar and had resulted in arrests and convictions for prostitution, underage drinking, disorderly conduct and theft. Surveillance films depicted employees having intimate *1135 physical contact and sexual relations with patrons.
Subcommittee member Jeffrey Streeter researched zoning and licensing issues. With respect to establishing an appropriate license fee, he considered estimated costs associated with processing an application and conducting background checks, ongoing records maintenance, estimated enforcement costs and license fees applicable to other types of businesses. For example, the fee for a liquor license is $500. Streeter and the subcommittee determined that a $100 application fee was necessary, in part, to cover investigation costs. On the basis of defendant's experiences with establishments licensed to sell liquor, the subcommittee determined that $400 was necessary to defray enforcement costs. The $25 fee for employee licenses was necessary to cover administration costs, records maintenance and issuing identification cards.
Subcommittee member Richard Nerbun researched health-related findings listed in the ordinance. He did so by culling statistics from publications issued by the Centers for Disease Control. For the most part, Nerbun focused on statistics related to sexually transmitted diseases. In addition, Nerbun researched the ordinance's hours of operation provision. He considered matters related to sexual assault and molestation of children and law enforcement response time on weekends. On several occasions, the subcommittee discussed police staffing concerns and how these concerns should play into the hours of operation provision. Specifically, subcommittee members recognized that there is only one police officer on duty Sunday through Thursday. During this period, citizens must rely on the county sheriff's office for law enforcement, which can result in a longer response time.
On December 10, 1997, the subcommittee sent a draft of the ordinance to the planning commission. Following a public hearing, all seven members of the planning commission voted unanimously to recommend adoption of the ordinance by the city council. On January 6, 1998, the city council conducted a public hearing. Following review and discussion, the city council voted unanimously, with all members present, to enact the ordinance. No other licensed businesses in the City of Cumberland are subject to the licensing, inspection, disclosure and disqualification requirements that apply to sexually oriented businesses.
Plaintiff Norwood and other dancers at the Island Bar perform in a state of nudity, as defined in the ordinance. She uses a stage name to prevent customers from learning her true name or her home address. Plaintiff Norwood is afraid that a customer would be able to obtain personal information about her from licensing records kept by defendant pursuant to the ordinance. In the event that the ordinance is enforced, Norwood will not apply for a license in order to continue working for the Island Bar. Instead, she will practice her profession as an exotic dancer elsewhere.
OPINION
I. THE ORDINANCE
Defendant's ordinance regulates so-called "sexually oriented businesses" and is divided into twenty-four sections, three of which are the subject of this lawsuit: 1) the prohibition against depicting "specified sexual acts" and appearing in a "state of nudity"; 2) the hours of operation provision; and 3) various licensing requirements imposed on owners and employees of sexually oriented businesses. Key to an understanding of these provisions and the constitutionality of the ordinance are two sections containing extensive findings and definitions of important terms.
The preamble and first section of the ordinance set forth several declarations and findings. Among the declarations provided are the following:
WHEREAS, sexually oriented businesses require special supervision from the public safety agencies of the City in order to protect and preserve the health, safety and welfare of the patrons of such businesses as well as the citizens of the City;
WHEREAS, the City Council finds that sexually oriented businesses are frequently used for unlawful sexual activities, including prostitution and sexual liaisons of a casual nature; and
WHEREAS, the concern over sexually transmitted diseases is a legitimate health *1136 concern of the City which demands reasonable regulation of sexually oriented businesses in order to protect the health and well-being of the citizens; and
WHEREAS, licensing is a legitimate and reasonable means of accountability to ensure that operators of sexually oriented businesses comply with reasonable regulations and to ensure that operators do not knowingly allow their establishments to be used as places of illegal sexual activity or solicitation; and
* * * * * *
WHEREAS, the City Council has determined that location criteria alone do not adequately protect the health, safety, and general welfare of the people of this City;
* * * * * *
City of Cumberland, Wis., Municipal Code, § 12.15. In addition to these and other declarations, the ordinance contains a number of findings based on "evidence" in "studies" from several cities. Included among such findings are several statements regarding the connection between sexually oriented businesses and the spread of crime, urban blight and sexually transmitted diseases. For example, one finding contained in the ordinance declares:
It is desirable in the prevention of the spread of communicable diseases to obtain a limited amount of information regarding certain employees who may engaged in the conduct which this ordinance is designed to prevent or who are likely to be witnesses to such activity.
§ 1(B)(22).
Section 8(A) of the ordinance prohibits anyone in a sexually oriented business from appearing in a "state of nudity," defined as
the showing of the human male or female genitals, pubic area, vulva, anus, anal cleft or cleavage with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple, or the showing of the covered male genitals in a discernibly turgid state.
§ 2(15). An employee of a sexually oriented business may appear in a state of semi-nudity, provided the employee is at least ten feet from patrons and perched on a stage elevated at least two feet off the floor. § 8(B). The ordinance contains the following definition of "semi-nude":
[T]he showing of the female breast below a horizontal line across the top of the areola at its highest point or the showing of the male or female buttocks. This definition shall include the entire lower portion of the human female breast, but shall not include any portion of the cleavage of the human female breast, exhibited by a dress, skirt, leotard, bathing suit, or other wearing apparel provided the areola is not exposed in whole or in part.
§ 2(19). In addition to prohibiting total nudity, section 8(A) also bars the depiction of "specified sexual acts," a term that encompasses "sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, masturbation, or sodomy." § 2(24).
Included among the definition of "sexual oriented businesses" are adult cabarets, theaters and motion picture theaters. § 2(21). "Adult cabaret" is defined as "nightclub, bar, restaurant, or similar commercial establishment which regularly features: (a) persons who appear in a state of nudity or seminude; or ... (c) films, motion pictures, video cassettes, slides or other photographic reproductions which are characterized by the depiction or description of `specified sexual activities' or `specified anatomical areas.'" § 2(3). The ordinance does not define "regularly feature" but states that "specified anatomical areas" include "(a) the human male genitals in a discernibly turgid state, even if completely and opaquely covered; or (b) less than completely and opaquely covered human genitals, pubic region, buttocks or a female breast below a point immediately above the top of the areola." § 2(22).
Sexually oriented businesses may operate only within certain times set by the ordinance. They must remain closed on Sundays and may operate only between 10 a.m. to 12 midnight, Monday through Saturday. These restrictions apply to all sexually oriented businesses except for adult motels. § 10.
Under the ordinance, it is illegal to operate a sexually oriented business or work in such a business without a license from defendant. § 11. These licenses are issued subject to certain disclosure, inspection and disqualification *1137 provisions. To obtain an operator's license, an applicant must provide his or her name, age, mailing and residential addresses, aliases, a recent photograph and must divulge whether he or she has been convicted of "specified criminal activity." § 11(E). An individual applying for an employee license must provide this same information as well as his or her date and place of birth, height, weight, hair and eye color, home and business telephone numbers and fingerprints. § 11(F) and (G). If the prospective operator of a sexually oriented business is a corporate entity, as opposed to an individual, each person with an ownership interest in the business greater than 20% must sign the license application and comply with the disclosure provisions set forth in subsection (E). § 11(D).
The ordinance establishes certain standards with which defendant must comply when investigating applications and issuing licenses. Upon receiving an employee license application, defendant must issue a temporary license to the applicant. § 12(A). Defendant must complete the licensing process within thirty days after receiving an application, whereupon defendant must issue a license unless review of the application reveals one or more of five enumerated "findings," including a determination that the applicant has been convicted of specified criminal activity. Id. With respect to applications for an operator's license, defendant must act within the same 30-day time frame and may deny a license if it finds, among other things, that the applicant owes overdue taxes, fees, fines or penalties, that the applicant has been convicted of specified criminal activity or that "the premises to be used for the sexually oriented business have not been approved by the health department, fire department, and the building official as being in compliance with applicable laws and ordinances." § 12(C). In addition, defendant not issue a license if the applicant has not paid his or her application fee, $25 for an employee license and $400 for an operator's license. § 14.
II. INTRODUCTION
The constitutionality of many of the provisions from defendant's ordinance turns on whether these provisions are designed to combat secondary effects associated with nude dancing or whether they target the content of the message conveyed by such dancing. For example, a local government may not force adult movie theaters to be located in a particular area of the city because the government finds the content of films displayed by such theaters distasteful; this would be viewpoint discrimination, which is prohibited by the First Amendment. However, the same government could enact a similar regulation in order to control urban blight and related problems associated with adult theaters. See Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S. Ct. 925, 89 L. Ed. 2d 29 (1986). As already indicated, the constitutionally significant distinction between these approaches to regulating adult theaters is that the first ordinance is justified by reference to content while the second ordinance is justified by reference to "undesirable secondary effects of such businesses." Id. at 49, 106 S. Ct. 925. An analysis of defendant's ordinance must be guided by two Supreme Court opinions. See Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S. Ct. 2456, 115 L. Ed. 2d 504 (1991); Renton, 475 U.S. 41, 106 S. Ct. 925, 89 L. Ed. 2d 29.
A. Barnes and Renton
The First and Fourteenth Amendments prohibit governments from abridging "the freedom of speech." Although the term "speech," as used in the Constitution, encompasses nonverbal communication and expressive conduct, the Supreme Court has long since rejected the notion "that an apparently limitless variety of conduct can be labeled `speech' whenever the person engaging in the conduct intends thereby to express an idea." United States v. O'Brien, 391 U.S. 367, 376, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968). For example, public nudity by itself is not protected speech, see Barnes, 501 U.S. at 571, 111 S. Ct. 2456 (plurality) (little if any message conveyed by appearance of individuals at nude beach), id. at 573-574, 111 S. Ct. 2456 (Scalia, J., concurring) (same), id. at 581, 111 S. Ct. 2456 (Souter, J., concurring) (same), but non-obscene nude dancing does have some status under the First Amendment because it is expressive conduct that conveys an erotic message. See Barnes, at 565-566, 111 S. Ct. 2456 (plurality) (nude dancing is "expressive *1138 conduct within the outer perimeters of the First Amendment, though we view it as only marginally so"); Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 65, 101 S. Ct. 2176, 68 L. Ed. 2d 671 (1981) (an entertainment program may not be prohibited solely because it displays the nude human figure); Jenkins v. Georgia, 418 U.S. 153, 161, 94 S. Ct. 2750, 41 L. Ed. 2d 642 (1974) (nudity alone does not place otherwise protected material outside mantle of First Amendment).
Governments may ban or restrict nonverbal expressive activity "because of the action it entails, but not because of the ideas it expresses so that burning a flag in violation of an ordinance against outdoor fires could be punishable, whereas burning a flag in violation of an ordinance against dishonoring the flag is not." R.A.V. v. City of St. Paul, 505 U.S. 377, 386, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992) (citations omitted). In other words, laws that regulate protected speech fall into one of two categories: content-based or content-neutral. A content-based law regulates speech or conduct on the basis of "hostility or favoritism towards the underlying message expressed." Id. at 386, 112 S. Ct. 2538.
At first glance, many laws that regulate expressive conduct do not fit neatly into either of these categories. See Renton, 475 U.S. at 47, 106 S. Ct. 925 (zoning restrictions for adult movie theaters). To distinguish between content-neutral and content-based laws, the Supreme Court has applied two different analytical frameworks, one of which is derived from O'Brien, 391 U.S. at 367, 88 S. Ct. 1673, the other from Clark v. Community for Creative Non-Violence, 468 U.S. 288, 104 S. Ct. 3065, 82 L. Ed. 2d 221 (1984). Although these frameworks are not formulated alike, the Court has acknowledged that there is little, if any, substantive difference between them. See Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566, 111 S. Ct. 2456, 115 L. Ed. 2d 504 (1991) (plurality) (O'Brien and Clark tests "embody much the same standards. ..."); Clark, 468 U.S. at 298, 104 S. Ct. 3065 (same). See also International Eateries of America, Inc. v. Broward County, 941 F.2d 1157, 1161 n. 2 (11th Cir.1991) (same substantive outcome under either standard).
O'Brien and Clark each involved laws that restricted or banned expressive activity. In O'Brien, 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672, an individual protesting the Vietnam War was arrested for burning his draft card in violation of federal law. The Court held that the type of "symbolic speech" engaged in by the protester is entitled only to qualified protection under the First Amendment, concluding that "when `speech' and nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms." Id. at 376, 88 S. Ct. 1673. In these situations, courts are directed to gauge the sufficiency of a governmental interest by inquiring whether: 1) the regulation is within the constitutional power of the government; 2) the regulation furthers an important or Substantial governmental interest; 3) the governmental interest is unrelated to the suppression of free expression; and 4) whether the incidental restriction on First Amendment freedoms is no greater than is essential to the furtherance of the governmental interest. Id. at 377, 88 S. Ct. 1673.
In Clark, 468 U.S. at 289, 104 S. Ct. 3065, the Court held that a National Park Service regulation prohibiting camping in certain parks did not violate the First Amendment when applied to prohibit demonstrators from sleeping in such parks as a part of their demonstration. After acknowledging that all manner of expression is subject to reasonable time, place and manner restrictions, the Court noted that such restrictions "are valid provided that they are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information." Id. at 293, 104 S. Ct. 3065 (citations omitted).
The Court has applied the O'Brien and Clark tests in two cases involving laws that regulate erotic speech. See Barnes, 501 U.S. 560, 111 S. Ct. 2456, 115 L. Ed. 2d 504; Renton, 475 U.S. 41, 106 S. Ct. 925, 89 L. Ed. 2d 29. Renton stands for two propositions: 1) *1139 time, place and manner restrictions enacted to combat secondary effects associated with some form of erotic speech are content-neutral; and 2) governments need not conduct independent studies in order to justify the existence of a causal link between the restricted activity and the secondary effects so long as they rely upon the experiences of other cities. Renton involved a zoning restriction prohibiting any adult movie theater from locating within 1,000 feet of a residential zone, family dwelling, church or park and within one mile of a school. The Court concluded that "the Renton ordinance is aimed not at the content of the films shown at [adult theaters], but rather at the secondary effects of such theaters on the surrounding community." Renton, 475 U.S. at 47, 106 S. Ct. 925. Secondary effects identified by the Renton city council included unspecified "harmful effects on the area and ... neighborhood blight." Id. at 51, 106 S. Ct. 925. Addressing the first part of the Clark test, the Court labeled the ordinance "content-neutral" because Renton "justified [it] without reference to the content of the regulated speech." Id. at 48, 106 S. Ct. 925 (citations and quotation marks omitted). For this reason, Renton could draw a distinction between adult theaters and other theaters without running afoul of the First Amendment. In addition, the Court dismissed an objection regarding the evidence used by the Renton city council to justify the need for such an ordinance. Rather than compiling a study documenting the harmful secondary effects brought about by adult theaters located in Renton, the city council "relied heavily on the experience of, and studies produced by, the city of Seattle." Id. at 50, 106 S. Ct. 925. Despite this shortcut, the Court held that the "First Amendment does not require a city, before enacting such an ordinance, to conduct new studies or produce new evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses." Id. at 51-52, 106 S. Ct. 925.
Barnes is the Court's latest exegesis on the subject of erotic speech. It presents a vexing interpretive problem. Although five justices voted to uphold Indiana's public indecency law requiring exotic dancers to wear G-strings and adhesive patches covering their nipples (known in the business as "pasties"), the case produced three divergent opinions, neither of which commanded a majority of the Court. Chief Justice Rehnquist announced the judgment of the Court, in which Justices O'Connor and Kennedy joined. Justices Souter and Scalia filed separate concurrences. When courts are confronted with such fractured Supreme Court opinions, "the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds." Marks v. United States, 430 U.S. 188, 193, 97 S. Ct. 990, 51 L. Ed. 2d 260 (1977). Put another way, courts confronted with such opinions should attempt to find the common denominator upon which a majority of justices agree. See Village of Bolingbrook v. Citizens Utilities Company of Illinois, 864 F.2d 481, 483 (7th Cir.1988). However, where no such common denominator exists, courts are not required to create one. See Schindler v. Clerk of Circuit Court, 715 F.2d 341, 345 n. 5 (7th Cir.1983). Expanding on this concept, the Court of Appeals for the Third Circuit has emphasized that
it is not always possible to discover a single standard that legitimately constitutes the narrowest ground for the decision.... "Marks is workable one opinion can be meaningfully regarded as `narrower' than another only when one opinion is a logical subset of other, broader opinions. In essence, the narrowest opinion must represent a common denominator of the Court's reasoning; it must embody a position implicitly approved by at least five Justices who support the judgment."
Rappa v. New Castle County, 18 F.3d 1043, 1057 (3d Cir.1994) (quoting King v. Palmer, 950 F.2d 771, 781 (D.C.Cir.1991) (en banc)). In cases in which at least five justices do not agree implicitly on a single rationale, "no particular standard constitutes the law of the land, because no single approach can be said to have the support of a majority of the court." Rappa, 18 F.3d at 1058. In a case such as Barnes where "the majority votes to uphold a law as constitutional, the `narrowest grounds' principle will identify as authoritative the standard articulated by a Justice or *1140 Justices that would uphold the fewest laws as constitutional." Planned Parenthood v. Casey, 947 F.2d 682, 694 (3d Cir.1991), aff'd in part, rev'd in part, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992). This formulation of the standard suggests that the purpose behind Marks is two-fold: "to promote predictability in the law by ensuring lower court adherence to Supreme Court precedent," id. at 693, and, at the same time, to limit the precedential reach of cases in which a majority of justices do not join in a single opinion.
In Barnes, the plurality and Justice Souter agreed that the statute furthered a substantial interest but parted ways over what that interest was. The Court could not forge a consensus on this issue, in part, because the text of the statute contained no indication why the Indiana legislature enacted it. The Chief Justice surmised that the legislature did so to protect "order and morality" and concluded that this constituted a substantial governmental interest under the second step of the O'Brien test. See Barnes, 501 U.S. at 569, 111 S. Ct. 2456. Justice Souter identified a different governmental interest, the eradication of secondary effects associated with nude dancing, such as prostitution, sexual assault and other criminal activity. See Barnes, 501 U.S. at 582-583, 111 S. Ct. 2456 (citing Renton, 475 U.S. at 44, 106 S. Ct. 925).
The disagreement in Barnes between Justice Souter and the plurality has broad implications for the ability of governments to regulate erotic speech. For example, defendant has justified its ordinance, in part, to promote the "morals" of its citizenry. Governments interested in enacting regulations like the one promulgated by defendant would enjoy considerably more latitude to do so if such regulations could be justified by nothing more than a vague reference to "morals" and "order." Adoption of this proposition by the Court would virtually eliminate the requirement imposed in Renton, 475 U.S. at 51-52, 106 S. Ct. 925, that a city rely on some evidence however tenuous establishing a link between the form of expression and the governmental interest asserted. In contrast to Justice Souter, the opinion of the Chief Justice reveals no indication that such evidence would be necessary in order to sustain morality-based justifications. For these reasons, most courts that have applied the Marks rule to Barnes have concluded that Justice Souter's opinion represents the controlling holding because it is "narrower" than the rationale to which the plurality subscribed. See, e.g., J & B Entertainment, Inc. v. City of Jackson, 152 F.3d 362 (5th Cir.1998); Triplett Grille, Inc. v. City of Akron, 40 F.3d 129 (6th Cir.1994); International Eateries of America, Inc. v. Broward County, 941 F.2d 1157 (11th Cir.1991); Lounge Management v. Town of Trenton, 219 Wis. 2d 13, 580 N.W.2d 156, 160 (1998). To the extent that these cases stand for the proposition that the standard articulated by Justice Souter is narrower because it would uphold the fewest laws as constitutional, see Planned Parenthood, 947 F.2d at 694, I agree.
However, I believe that these cases fail to take into account that the fifth member of the Court who voted in favor of upholding the Indiana statute, Justice Scalia, arrived at this conclusion by a route entirely different from his colleagues. Justice Scalia concluded that the Indiana law should be upheld, "not because it survives some lower level of First Amendment scrutiny, but because, as a general law regulating conduct and not specifically directed at expression, it is not subject to First Amendment scrutiny at all." Barnes, 501 U.S. at 572, 111 S. Ct. 2456 (Scalia, J., concurring). Justice Scalia did not agree implicitly or explicitly that the First Amendment is implicated by a statute such as the one in this lawsuit that is targeted at nude dancing, as opposed to public nudity in general. Indeed, he reached the opposite conclusion, maintaining that expressive conduct is entitled to First Amendment protection only "[w]here the government prohibits conduct precisely because of its communicative attributes...." Id. at 577, 111 S. Ct. 2456. Examples of such laws, according to Justice Scalia, include statutes that ban flag burning, see United States v. Eichman, 496 U.S. 310, 110 S. Ct. 2404, 110 L. Ed. 2d 287 (1990); defacing the flag, see Spence v. Washington, 418 U.S. 405, 94 S. Ct. 2727, 41 L. Ed. 2d 842 (1974); wearing a black arm band, see Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969); participating *1141 in a silent sit-in, see Brown v. Louisiana, 383 U.S. 131, 86 S. Ct. 719, 15 L. Ed. 2d 637 (1966); and flying a red flag, see Stromberg v. California, 283 U.S. 359, 51 S. Ct. 532, 75 L. Ed. 1117 (1931). Laws that suppress expressive conduct "as an incidental side effect of forbidding the conduct for other reasons," Barnes, 501 U.S. at 577, 111 S. Ct. 2456 (Scalia, J., concurring), fall outside the category delineated by Justice Scalia and should be subject to a rational basis standard, not the type of intermediate level First Amendment scrutiny endorsed by the plurality and Justice Souter. See id. at 579-580, 111 S. Ct. 2456. "Moral opposition to nudity supplies a rational basis for its prohibition, and since the First Amendment has no application to this case no more than that is needed." Id. at 580, 111 S. Ct. 2456. From this discussion, it is evident that Justice Scalia would likely classify defendant's ordinance as a content-neutral law that suppresses expressive conduct for reasons other than the communicative attributes inherent in nude dancing. Cf. Triplett Grille, 40 F.3d at 133 ("Justice Scalia ... concluded that nude dancing is not inherently expressive activity entitled to First Amendment protection").
These observations notwithstanding, it is possible to say that all five justices in the Barnes majority agreed on one issue: the Indiana statute did not violate the Constitution. Though these justices disagreed what threshold standard governments must meet in order to justify the constitutionality of laws regulating public nudity, all believed that Indiana had surpassed this threshold; some would simply set the bar higher than others. It is difficult to say whether this is enough of a consensus to conclude, as other courts have, that Justice Souter's opinion represents the authoritative holding in Barnes. The answer depends upon the extent to which Marks permits a court to "associate Justices with propositions they expressly rejected." Mark Alan Thurmon, Note, When The Court Divides: Reconsidering The Precedential Value Of Supreme Court Plurality Decisions, 42 Duke Law Journal 419, 429-430 (1992).
Fortunately, these questions need not be resolved here. The Court's earlier holding in Renton is substantially consistent with Justice Souter's concurrence in Barnes; both require evidence of secondary effects to justify content-neutral regulation. To the extent that there are any differences between the two, these differences do not affect any substantive issues in this case. Therefore, I refer to Justice Souter's concurrence in Barnes for the persuasive guidance it offers in interpreting Renton, not to anoint it as "authoritative" under the Marks rule.
B. Secondary Effects
A time, place or manner restriction designed to combat the undesirable secondary effects associated with certain businesses is reviewed under the standards applicable to "content-neutral" laws. See Renton, 475 U.S. at 49, 106 S. Ct. 925. Such a restriction does not amount to illegal viewpoint discrimination if it is 1) justified without reference to the content of the regulated speech; 2) narrowly tailored to serve a substantial governmental interest; and 3) preserves ample alternative means of communication. See Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S. Ct. 2746, 105 L. Ed. 2d 661 (1989); Clark, 468 U.S. at 293, 104 S. Ct. 3065. See also TK's Video, Inc. v. Denton County, 24 F.3d 705, 707 (5th Cir.1994) (citing Renton, 475 U.S. at 50, 106 S. Ct. 925); International Eateries, 941 F.2d at 1161-1162.
Plaintiffs argue unpersuasively that this analytical framework is inapplicable because the ordinance is not content-neutral. They maintain that a law such as this one that targets only sexually oriented businesses discriminates on its face against a particular viewpoint, namely, a sexual or erotic viewpoint. The Supreme Court has held otherwise. Like defendant's law, the zoning ordinance upheld in Renton applied only to adult theaters but not to theaters that featured non-pornographic fare. Nevertheless, the Court characterized Renton's ordinance as content-neutral. See Renton, 475 U.S. at 47-48, 106 S. Ct. 925. The operative consideration is whether a law is justified without reference to the content of regulated speech, not whether it focuses on some businesses but not on others. See id. at 48, 106 S. Ct. 925. Plaintiffs' evidence regarding the shadowy influence of a nefarious right-wing organization is irrelevant to this inquiry. The court can "not strike down an otherwise constitutional *1142 statute on the basis of an alleged illicit legislative motive." Id. at 48, 106 S. Ct. 925 (quoting O'Brien, 391 U.S. at 383, 88 S. Ct. 1673). In other words, the court does not ask why defendant actually enacted its ordinance; it asks whether defendant has offered evidence that it could have enacted it for a content-neutral reason. See J & B Entertainment, 152 F.3d at 373 ("We do not ask whether the regulator subjectively believed or was motivated by other concerns, but whether an objective lawmaker could have so concluded, supported by an actual basis for the conclusion"). When answering this question, the court is guided primarily by the text of the law in question. The language of the defendant's ordinance reveals that it is justified by reference to certain harmful secondary effects associated with sexually oriented businesses, not by reference to the erotic content of the message expressed by such businesses. The secondary effects identified in the ordinance include the prevention of crime, urban blight and the spread of sexually transmitted diseases. These are substantial governmental interests. See, e.g., Renton, 475 U.S. at 50, 106 S. Ct. 925. Thus, the ordinance fits comfortably within the content-neutral category.
The first two parts of the secondary effects test actually embrace three important precepts. First, to justify a regulation, a government need not conduct its own studies; it may rely upon the experiences of other cities, as well as studies conducted by them, "so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem" addressed by the regulation. Renton, 475 U.S. at 52, 106 S. Ct. 925. This evidence may be nothing more than a reference to "detailed findings" summarized in a legal opinion involving a similar regulation. See id. at 51, 106 S. Ct. 925. Second, to show that substantial governmental interests are served by a regulation, a government is not required to establish conclusively that the regulated activity actually causes the secondary effects, only that it reasonably believes that "the effects are correlated with the existence of such establishments." Barnes, 501 U.S. 560, 585, 111 S. Ct. 2456, 115 L. Ed. 2d 504 (Souter, J., concurring). For example, the Supreme Court did not force the city of Renton to prove that urban blight is affirmatively associated with adult theaters in Renton or that such blight would move with the theaters. Instead, the Court allowed some latitude for Renton to "experiment with solutions to admittedly serious problems." Renton, 475 U.S. at 52, 106 S. Ct. 925 (quoting Young v. American Mini Theatres, Inc., 427 U.S. 50, 71, 96 S. Ct. 2440, 49 L. Ed. 2d 310 (1976) (plurality)). Finally, a regulation is narrowly tailored "[s]o long as the means chosen are not substantially broader than necessary to achieve the government's interest." Ward, 491 U.S. at 800, 109 S. Ct. 2746, 105 L. Ed. 2d 661 (1989). Put another way, the means chosen are narrowly tailored if a less restrictive alternative would promote the governmental interest less effectively. See id. at 799, 109 S. Ct. 2746 (quoting United States v. Albertini, 472 U.S. 675, 689, 105 S. Ct. 2897, 86 L. Ed. 2d 536 (1985)).
To summarize, a government satisfies the first two elements of the Clark/Ward test by showing that 1) it has evidence upon which to base a reasonable belief that there is a correlation between the activity regulated and the alleged secondary; effect of that activity and 2) it reasonably believes the regulation enacted ameliorates the correlated secondary effect and the regulation is not substantially broader than necessary to achieve that goal.
III. MOTION TO STRIKE
Many of defendant's proposed findings of fact are based on affidavits submitted by various individuals who served on the subcommittee formed by the city planning commission. This subcommittee drafted defendant's ordinance. Plaintiff maintains that these affidavits should be stricken from the record because they violate the rule in Wisconsin that "a court may not rely upon the testimony of members of a legislative body for the purpose of determining what that body intended when it enacted a particular piece of legislation." See La Crosse County v. Gershman, Brickner & Bratton, 982 F.2d 1171, 1174 (7th Cir.1993) (citing Labor and Farm Party v. Elections Bd., 117 Wis. 2d 351, 344 N.W.2d 177, 180 (1984)). In La Crosse, the court of appeals reviewed a decision by the district court allowing seven members of a county board to testify about their motivations *1143 for voting for a particular resolution. The court held that the district court acted within its discretion in admitting testimony that supplemented language in the resolution but did not impeach it. Id. at 1174. However, the district court should not have allowed board members to explain their motivations for voting in favor of the resolution. The jury could have interpreted this testimony as the board's collective intent behind the resolution just as easily it could have attributed these views to the individuals who expressed them. Id.
The Wisconsin rule relied upon by plaintiff is inapplicable in a case such as this one governed by federal law. Once again, Barnes and Renton provide guidance. As this court noted recently in a similar case:
[A]s "long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem," it is evidence enough. Renton, 475 U.S. at 52, 106 S. Ct. 925. Moreover, it appears from Justice Souter's opinion in Barnes, 501 U.S. at 582, 111 S. Ct. 2456, that this evidence can be developed prior to enactment of the regulation or adduced at trial (or, presumably, as in this case, on a motion for summary judgment). Barnes v. Glen Theatre, Inc., 501 U.S. 560, 582, 111 S. Ct. 2456, 115 L. Ed. 2d 504 (Souter, J., concurring). Certainly nothing in the Barnes plurality opinion would prevent the town from adducing evidence of secondary effects post-enactment, since the plurality (unlike Justice Souter) would not require the town to produce any evidence at all. See Barnes, 501 U.S. at 568, 111 S. Ct. 2456 ("It is impossible to discern, other than from the text of the statute, what governmental interest the Indiana legislators had in mind when they enacted this statute").
DiMa Corporation v. Town of Hallie, No. 98-C-240-C at 11-12 (W.D.Wis.1998). This passage expands upon a principle established earlier in this opinion: governments enjoy broad latitude in developing the evidence necessary to justify a content-neutral time, place or manner restriction that targets expressive conduct. Thus, defendant may supplement the enumerated findings in its ordinance with evidence that provides a more detailed explanation of the basis of these findings. The supplemental evidence contained in the affidavits submitted by defendant do not contradict any of the ordinance's existing provisions and do not create new findings or justifications.
Plaintiffs' motion will be denied.
IV. MOTION FOR SUMMARY JUDGMENT
A. Section 8(A)
Section 8(A) of the ordinance prohibits employees of sexually oriented businesses from appearing in a state of total nudity and it prohibits the depiction of specified sexual activities in a sexually oriented business. Plaintiffs argue that this provision is unconstitutional for two reasons: 1) defendant enacted it for the purpose of restraining the content of protected speech; and 2) it is facially overbroad.
1. Secondary effects
Section 8(A) satisfies the minimal evidentiary burden established by the Supreme Court. As in Renton, defendant has justified this provision by reference to "findings" in certain judicial opinions and in studies conducted by several other governments, including something called the "Report of the Attorney General's Working Group On the Regulation of Sexually Oriented Businesses." See § 1(B). Collectively, this forms the basis of twenty-five specific findings articulated in the ordinance. See §§ 1(B)(1) - 1(B)(25). Defendant has supplemented these findings from the ordinance with evidence regarding the incidence of crime associated with the Island Bar. Contrary to plaintiffs' assertion, these findings need not be measured against the law enforcement problems associated with non-sexually oriented businesses in Cumberland. Nothing in Renton or any of the three opinions written by the Barnes majority would require defendant to engage in this type of rigorous, comparative analysis. As underwhelming as defendant's "evidence" may be, it passes muster because it is reasonably relevant to the problems identified by defendant. See Renton, 475 U.S. at 51-52, 106 S. Ct. 925. For example, two provisions from the ordinance assert that employees of sexually oriented businesses "engage *1144 in higher incidence of certain types of illicit sexual behavior than employees of other establishments" and that "[p]ersons frequent ... sexually oriented businesses for the purpose of engaging in sex within the premises" of these businesses. §§ 1(B)(2) and 1(B)(5). These findings are relevant to defendant's interest in preventing criminal activity, such as prostitution, and the spread of sexually transmitted diseases.
Whether these interests are furthered by requiring dancers to wear G-strings and pasties is, at first blush, a dubious proposition. It is not inherently obvious how covering a dancer's nipples with adhesive patches would reduce criminal activity associated with adult cabarets. Nevertheless, Justice Souter saw some logic to this notion, see Barnes, 501 U.S. at 584-586, 111 S. Ct. 2456 (Souter, J., concurring), and I find the correlation sufficiently plausible to agree. One can assume reasonably that an establishment featuring completely naked women gyrating on a stage is less likely to draw clientele of both sexes than an establishment featuring more modestly clad dancers. Further, one can assume that there is greater potential for trouble in an establishment in which the entertainment is all female and all naked and in which the clientele is all male. With these concerns in mind, an objective lawmaker reviewing the evidence of secondary effects described above could have concluded that there is a correlation between adult businesses and the illicit activity cataloged in the ordinance and that a ban on total nudity in adult cabarets is likely to reduce such activity.
The restrictions imposed on erotic dancing by section 8(A) of the ordinance are narrowly tailored and they preserve ample alternative means for communication. The only alternative less restrictive than pasties and G-strings would be total nudity not an effective option. Dancers at establishments such as the Island Bar may still engage in expressive conduct that conveys an erotic message provided they do so in a semi-nude state. See § 12.15(8)(b). To convey their message effectively, they must simply rely more on technique and less on simple exposure.
In conclusion, section 8(A) is a valid time, place and manner restriction because it is justified without reference to the content of the expressive conduct that it regulates, because it is narrowly tailored to further defendant's substantial interest in reducing secondary effects associated with adult cabarets and because the ordinance leaves ample alternative means for erotic expression.
2. Overbreadth
Plaintiffs argue that even if section 8(A) of the ordinance is constitutional as applied to plaintiffs, it is facially overbroad because it applies to conduct defendant cannot legitimately regulate. An overbroad law burdens protected as well as unprotected speech. In doing so, such a law chills the First Amendment rights of third parties by encouraging them to remain silent for fear of prosecution in the face of a law of uncertain scope. See Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973); NAACP v. Button, 371 U.S. 415, 432-33, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963). For this reason, the overbreadth doctrine allows a person who has engaged in conduct not protected by the Constitution to challenge the constitutionality of a law that might be used against individuals who do engage in protected conduct, see Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503, 105 S. Ct. 2794, 86 L. Ed. 2d 394 (1985), but such persons may do so only when the threat presented by a statute is real and substantial, and "then only as a last resort." Broadrick, 413 U.S. at 615, 93 S. Ct. 2908.
Under this framework, even if section 8(A) is constitutional as applied to the Island Bar, it is overbroad because it makes no exceptions for "live performances with serious artistic, social and political value." Triplett Grille, 40 F.3d at 136; see also Lounge Management Ltd. v. Town of Trenton, 219 Wis. 2d 13, 580 N.W.2d 156 (1998); Fond Du Lac County v. Mentzel, 195 Wis. 2d 313, 536 N.W.2d 160 (Ct.App.1995). These and other similar forms of unclothed entertainment are not correlated with the type of harmful secondary effects identified by defendant but could conceivably fall within the sweep of the ordinance.
Defendant contends that the ordinance is not susceptible to limitless application because a business does not qualify as an "adult *1145 theater" or "adult cabaret" unless it "regularly features" nudity or semi-nudity. See § B(3) and (7). Similar qualifications apply to the definition of "adult motion picture theaters." See §§ 2(5) and (6) ("establishment ... where ... motion pictures ... are regularly shown which are characterized by the depiction ... of `specified sexual activities' or `specified anatomical areas'"). The operative terms from these provisions, "regularly feature" and "regularly shown," are not defined in the ordinance. This is a problem. With no limitation on the scope of interpretation, the ordinance could apply to many businesses not connected with the harmful secondary effects identified in the ordinance. High brow artistic productions such as Equus and Diaghilev's L'apres midi d'un faun all feature nude performers who expose a "specified anatomical area" of their bodies. Many popular motion pictures such as Titanic have scenes which, in the stilted parlance of the ordinance, feature "the showing of [a] female breast with less than a fully opaque covering of any part of the nipple...." § 2(15). Numerous other commercial films like The Godfather include depictions of "specified sexual activities," as defined in section 2(24) of the ordinance ("sex acts, normal or perverted, actual or simulated, including intercourse ..."). Titanic and The Godfather have run for many weeks, even months, in movie theaters across the country. Such a theater located in the City of Cumberland could easily be classified as a sexually oriented business and become subject to the licensing requirements of the ordinance. Worse yet, even a licensed theater would be prohibited from showing mainstream, non-pornographic fare in which naked female breasts are depicted. As a result, films of unquestioned artistic merit, from Last Tango in Paris to Schindler's List, would be prohibited under the ordinance.
Defendant's reliance on Barnes is misplaced for two reasons. First, the Court explicitly refused to examine the Indiana statute under the overbreadth doctrine. As observed by the Chief Justice, "The Indiana Supreme Court appeared to give the ... statute a limiting construction to save it from a facial overbreadth attack." Barnes, 501 U.S. at 564 n. 1, 111 S. Ct. 2456 (plurality). Specifically, the Indiana high court held that the statute applied only to nude dancing that takes place outside the context "of some larger form of expression." State v. Baysinger, 272 Ind. 236, 397 N.E.2d 580, 587. Unlike the Indiana statute, defendant's ordinance has not been so "limited" by a Wisconsin court. Second, Justice Souter expressed some skepticism whether the statute could survive an overbreadth challenge if it barred "expressive nudity in classes of productions that could not readily be analogized to the adult films at issue in Renton [ ]." Barnes, 501 U.S. at 585 n. 2, 111 S. Ct. 2456 (Souter, J., concurring).
B. Hours of Operation
Section 10 of the ordinance permits sexually oriented business to be open from 10:00 a.m. to midnight, Monday through Saturday; businesses must remain closed all day Sunday. Plaintiffs argue that this provision is unconstitutional because it does not satisfy the secondary effects test and because it violates the equal protection clause of the Fourteenth Amendment. There is no merit to either of these claims.
1. Secondary effects
Defendant has satisfied its threshold burdens with respect to the hours of operation provision. It has pointed to studies and experiences from other towns that show a correlation between sexually oriented businesses and the secondary effects it seeks to regulate. This evidence consists of general findings from the ordinance regarding the effect of adult entertainment on surrounding neighborhoods, crime and public health. Defendant has supplemented these findings with affidavits from those responsible for drafting the ordinance, providing a more detailed explanation of the rationale and studies relied upon by defendant. Specifically, these affidavits reveal that defendant has only one police officer on duty Sunday through Thursday. From this evidence, a legislator could conclude that restricting the number of hours of operation of sexually oriented businesses would promote public safety by permitting local law enforcement to focus its limited resources on matters unrelated to the problems associated with such businesses, some of which are more likely to occur during the *1146 hours between midnight and dawn. Other courts have upheld similar ordinances on the basis of similar reasoning and evidence. See, e.g., Richland Bookmart, Inc. v. Nichols, 137 F.3d 435 (6th Cir.1998); Mitchell v. Commission on Adult Entertainment Establishments, 10 F.3d 123 (3d Cir.1993); Tee & Bee, Inc. v. City of West Allis, 936 F. Supp. 1479 (E.D.Wis.1996).
I agree with plaintiffs that the evidence presented by defendant in support of this provision does not explain in an entirely satisfactory way why sexually oriented businesses may not open until 10 a.m. Monday through Saturday and must remain closed entirely on Sunday. For example, defendant maintains that it cannot adequately protect school children from the dangers posed by sexually oriented businesses if those businesses are open as children are making their way to school each morning. Although this reasoning would seem to apply with equal force to children returning home from school, the ordinance allows sexually oriented businesses to be open during the after-school period. The justifications offered by defendant regarding the Sunday closure requirement are also problematic. According to defendant, this restriction is necessary because there is only one police officer on duty on Sunday. For some reason, however, the ordinance permits sexually oriented businesses to remain open other days of the week when only one officer is working. This leaves defendant's second justification, that Sunday closure is necessary to protect the morals of the community. As explained already, the plurality in Barnes agreed that preservation of morality could serve as a legitimate governmental interest but Justice Souter explicitly rejected this notion.
These issues are serious but not fatal to section 10 of the ordinance. Had defendant justified the entire provision or the entire ordinance by reference solely to morality, this would be a problem of constitutional magnitude. Defendant has not done so, however. In light of the generous standard to which governments are held on these threshold issues, it is sufficient that the evidence and rationale presented by defendant supports the ordinance generally. The rigorous, searching inquiry suggested by plaintiffs is inconsistent with this standard. If the questions raised by plaintiffs belong anywhere in the secondary effects test, it is within a discussion of the remaining considerations: whether the provision is narrowly tailored and whether it preserves ample alternative means of communication.
The hours of operation provision satisfies these elements. Like other parts of the ordinance, the provision is narrowly tailored to affect only the category of businesses shown to produce the unwanted secondary effects. See Renton, 475 U.S. at 52, 106 S. Ct. 925. Although the problems identified by plaintiffs suggest that the provision is over-inclusive, I am loathe to question the methods chosen by defendant too vigorously. Doing so would exceed the Supreme Court's mandate that "a regulation will not be invalid simply because a court concludes that the government's interest could be adequately served by some less-speech-restrictive alternative." Ward, 491 U.S. at 800, 109 S. Ct. 2746; see also Renton, 475 U.S. at 52, 106 S. Ct. 925 ("city must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems"). The relevant inquiry is whether the provision is "substantially broader than necessary," Ward, 491 U.S. at 800, 109 S. Ct. 2746, not whether the statute is need of fine-tuning. Arguably, defendant could achieve its objectives effectively by allowing sexually oriented businesses to open at 8 a.m. rather than 10 a.m. but this is the type of judicial second-guessing the Court sought to prevent in Ward. Finally, despite the restrictions imposed by section 10, sexually oriented businesses enjoy ample alternative means to communicate their sexually explicit messages. Plaintiff Schultz may operate the Island Bar fourteen hours a day, six days a week.
2. Equal protection
In analyzing an equal protection claim, the court must determine initially whether the claim involves a suspect class or a fundamental right. See Pryor v. Brennan, 914 F.2d 921, 923 (7th Cir.1990). Plaintiffs are not a members of a suspect class, see City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985), and nude dancing is not a fundamental right. In light of these findings, plaintiffs' equal protection claim must be evaluated *1147 pursuant to the "rational basis test." See Pryor, 914 F.2d at 923. Under this test, the ordinance is presumed valid and will be upheld if it is "rationally related" to a "legitimate state interest." See id. I have decided these issues previously in the context of the discussion of the secondary effects test. To summarize: defendant has a legitimate interest in reducing illicit activity associated with sexually oriented businesses; section 10 of the ordinance is rationally related to this interest because it forces these businesses to remain closed when this activity is most likely to happen and when law enforcement is least capable of responding to it.
C. Licensing Provisions
Plaintiffs argue that several licensing requirements contained in the ordinance are unconstitutional prior restraints on their right to free speech. Plaintiffs concede that defendant may require owners and operators of sexually oriented businesses to comply with a licensing scheme but maintain that this one is invalid in many respects. Further, plaintiffs contend that there is no constitutionally permissible justification for requiring employees of sexually oriented businesses to obtain a license. Beyond this general challenge, plaintiffs object to the disclosure requirements applicable to employees.[1]
The constitutionality of these provisions turns on two separate inquires: whether adequate procedural safeguards are built into the ordinance to limit the discretion of those administering it and whether the provisions are valid content-neutral time, place and manner restrictions aimed at secondary effects associated with sexually oriented businesses. See FW/PBS, Inc. v. Dallas, 493 U.S. 215, 223, 110 S. Ct. 596, 107 L. Ed. 2d 603 (1990). Before proceeding, one qualification must be made. Even though the Supreme Court has indicated that application of the secondary effects test is appropriate when evaluating a licensing scheme for sexually oriented businesses, see id., it is doubtful whether the third part of this test fits logically into an analysis of a prior restraint. Specifically, it does not make sense to ask whether someone denied an application to work as an exotic dancer still has ample alternative means to engage in this type of erotic expression under the licensing scheme. Without a license, such an individual has no alternatives. Perhaps in response to this problem, the Fifth Circuit has applied a hybrid of the secondary effects test that essentially lops off the third step. See TK's Video, 24 F.3d at 709-10 (citing Buckley v. Valeo, 424 U.S. 1, 64, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976) (per curiam)). This seems to be a suitable way to adapt the secondary effects test to the licensing provisions in defendant's ordinance.
In general, a law that requires an individual to obtain a license before engaging in some form of protected speech is a prior restraint. See Stokes v. City of Madison, 930 F.2d 1163, 1168 (7th Cir.1991). Because nude dancing is a form of speech protected under the First Amendment, the licensing requirements imposed by defendant's ordinance on operators and employees of sexually oriented businesses are a prior restraint. A facial challenge may be brought against this type of law if it "gives a government official or agency substantial power to discriminate based on the content or viewpoint of speech by suppressing disfavored speech or disliked speakers." Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 759, 108 S. Ct. 2138, 100 L. Ed. 2d 771 (1988). There are two reasons why defendant's ordinance confers such authority on those administering the licensing scheme. First, under § 13(B) of the ordinance, licenses are subject to annual review. See id. at 760, 108 S. Ct. 2138 ("periodic licensing requirement is sufficiently threatening to invite judicial review"). Second, the licensing system implemented by defendant's ordinance is directed "narrowly and specifically" at conduct associated with expression: nude dancing. See id.
Prior restraints bear a heavy presumption against constitutionality because "a free society prefers to punish the few who abuse rights of speech after they break the law than throttle them and all others beforehand." See Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 559, 95 S. Ct. 1239, 43 L. Ed. 2d 448 (1975). To avoid running *1148 afoul of the First Amendment, a prior restraint must not place unbridled discretion in the hands of a government official or agency, see Lakewood, 486 U.S. at 757, 108 S. Ct. 2138, and must place some limits on the time within which a government decisionmaker must issue or deny the license. See Vance v. Universal Amusement Co., 445 U.S. 308, 316, 100 S. Ct. 1156, 63 L. Ed. 2d 413 (1980).
The ordinance has these two procedural safeguards. First, officials in charge of administering the ordinance are constrained by reasonably detailed, content-neutral standards. The ordinance requires defendant to issue temporary licenses pending the outcome of an initial determination or an appeal and it provides for prompt judicial review. Second, the ordinance sets appropriate time limits within which defendant must review applications. It requires defendant to make the initial licensing decision within 30 days of the application. Fire, health and building certifications must be completed within 20 days of the application.
Before analyzing the validity of the licensing provisions under the secondary effects test, a preliminary matter must be addressed. In support of their contention that the ordinance's licensing provisions are unconstitutional, plaintiffs rely heavily on Genusa v. Peoria, 619 F.2d 1203 (7th Cir.1980), which involved a municipal ordinance that imposed similar licensing requirements on the owners and employees of adult bookstores. Peoria passed this ordinance to prevent adult bookstores and other sexually oriented businesses from concentrating in a single area of the city or locating in close proximity to places of worship, schools and residential neighborhoods. See id. at 1209. The Seventh Circuit characterized three of the licensing requirements in Peoria's ordinance as content-based prior restraints. One such requirement provided that an adult bookstore could not obtain a license unless it passed certain building and fire code inspections not imposed on other businesses. The city maintained that this provision helped retard urban blight. The court found no evidence to support this justification, observing that "there is nothing in the record to indicate that adult bookstores, as a class, contain more faulty light switches or other violations than regular bookstores, as a class." Id. at 1214. In the absence of a proper evidentiary basis, Peoria could not "single[ ] out [adult bookstores] for special regulation" without violating the standards applicable to time, place and manner restrictions established by the Supreme Court in O'Brien, 391 U.S. at 377, 88 S. Ct. 1673, and Young v. American Mini Theatres, 427 U.S. at 79-80. The two other provisions of the Peoria ordinance struck down by the Seventh Circuit made obtaining an employer license contingent upon passing a criminal background check and made working for an adult store contingent upon obtaining a special employee permit. The court of appeals concluded that these provisions had nothing to do with the city's interest in scattering sexually oriented businesses. See Genusa, 619 F.2d at 1218-19 and 1221.
Genusa no longer carries much persuasive weight because it predates what are now the leading cases on the regulation of sexually oriented businesses, Renton and Barnes. As discussed at great length elsewhere in this opinion, the standards applied by the Supreme Court in Renton and Barnes are considerably more generous and deferential to governments than those that existed at the time the Seventh Circuit decided Genusa. However, defendant's ordinance is much more ambitious than the Peoria law, encompassing a broad array of sweeping goals that go beyond the lone governmental interest recognized by the Seventh Circuit in Genusa: preventing sexually oriented businesses from clustering in one location. See TK's Video, 24 F.3d at 710 (Denton County ordinance outlines more ambitious objective than ordinance in Genusa). The court doubted that Peoria's ordinance could be interpreted to include the prevention of urban blight. See Genusa, 619 F.2d at 1214. Renton and Barnes do not mean that defendant enjoys a free ride. In particular, defendant still must produce some evidence to justify its regulations. See J & B Entertainment, 152 F.3d at 372 (Justice Souter's concurrence in Barnes did not eliminate government's evidentiary burden).
1. Operator disclosure: corporate affiliation
Under section 11(D) of the ordinance, if a corporate entity or partnership *1149 applies for a license to operate a sexually oriented business, every shareholder with an ownership interest of 20 percent or more must comply with all of the disclosure and disqualification provisions applicable to individual applicants. Plaintiff Schultz does not have standing to challenge this provision. See J.F. Shea Co. v. City of Chicago, 992 F.2d 745, 749 (7th Cir.1993) (to establish standing, plaintiff "must be able to allege an injury that affects his own legal rights," not those of third party). The undisputed facts reveal that plaintiff Schultz is the sole proprietor of the Island Bar. Thus, he has no stake in the outcome of a challenge to section 11(D). See Sierra Club v. Morton, 405 U.S. 727, 732, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972).
2. Operator disclosure and disqualification: prior criminal history
Under section 11(E)(3), applicants for an operator license must indicate whether they or anyone with whom they reside have been convicted of "specified criminal activity," a term defined as:
prostitution or promotion of prostitution; dissemination of obscenity; sale, distribution or display of harmful material to a minor; sexual performance by a child; possession or distribution of child pornography; public lewdness; indecent exposure; indecency with a child; engaging in organized criminal activity; sexual assault; molestation of a child; gambling; or distribution of a controlled substance; or any similar offenses to those described above under the criminal or penal code of other states or countries.
§ 2(23)(a). An applicant need not disclose a prior conviction for specified criminal activity if the conviction was a misdemeanor and it is over two years old. In the case of a felony conviction, disclosure is not required if the offense is over five years old. § 2(23)(b). Applicants who have been convicted of specified criminal activity cannot receive a license. § 13(A)(3). In Genusa, 619 F.2d at 1219, the Seventh Circuit struck down similar requirements. The court found no evidence supporting Peoria's contention that "one of the deleterious effects caused by adult uses is an increase in crime." Id. More important, the Seventh Circuit concluded that the leading Supreme Court case at the time regarding the regulation of sexually oriented businesses, Young v. American Mini Theatres, 427 U.S. 50, 96 S. Ct. 2440, 49 L. Ed. 2d 310, did not authorize such a requirement. See Genusa, 619 F.2d at 1219.
By contrast, defendant has submitted evidence that shows a correlation between sexually oriented businesses and criminal activity. Indeed, defendant has gone one step further by proving that crime is associated with plaintiffs' establishment. Given this evidence, a legislator could conclude that refusing to license a sexually oriented business run by an individual with a prior conviction for a sex-related crime would reduce the amount of illicit activity correlated with such businesses. This objective cannot be accomplished without the information necessary to conduct such a background check. Under the more forgiving standard applied by the Supreme Court in Renton and Barnes, courts have upheld provisions similar to those enacted by defendant, provided they are narrowly tailored to require disclosure only of those offenses that bear some relationship to the type of criminal activity associated with sexually oriented businesses. See, e.g., TK's Video, 24 F.3d at 710; FW/PBS, Inc. v. City of Dallas, 837 F.2d 1298, 1304-05 (5th Cir. 1988), rev'd on other grounds, 493 U.S. 215, 110 S. Ct. 596, 107 L. Ed. 2d 603; Tee & Bee, Inc., 936 F.Supp. at 1488-91; Ellwest Stereo Theater, Inc. v. Boner, 718 F. Supp. 1553, 1571 (M.D.Tenn.1989). With few exceptions, defendant's ordinance applies exclusively to sex-related crimes such as prostitution, solicitation, child pornography and sexual assault. Defendant has narrowed its ordinance even further by not requiring disclosure of older offenses and by drawing a distinction between misdemeanor and felony offenses.[2]
*1150 3. Operator disclosure and disqualification: past licenses
The ordinance requires operator-applicants to disclose whether they have ever applied for or held a license under the ordinance or a similar law; if so, applicants must state whether past licenses have been denied, suspended or revoked. § 11(E)(4). Applicants must also disclose whether they currently hold a sexually oriented businesses license. § 11(E)(5). An applicant is disqualified from receiving a license if defendant has revoked or denied a sexually oriented business license previously held by the applicant within the past year or if the applicant has had a similar license revoked or denied by another government within the past year. § 13(C)(4). Like the provisions providing for disclosure of an applicant's criminal history, these requirements will further defendant's interest in insuring that sexually oriented businesses are not run by persons inclined to encourage illicit activity. A legislator could conclude that an individual with a checkered licensing record presents more of a risk to the governmental interests identified in the ordinance. These provisions are narrowly tailored to require disclosure only of licenses to operate sexually oriented businesses and limit disqualification only to those applicants who have had a license denied or revoked within the past year.
4. Operator disclosure: photographs and aliases
Applicants for an operator's license must disclose any aliases and provide defendant with a passport-size photograph. § 11(E)(1)(a) and (9). Without photographs and aliases, defendant would not be able to conduct background checks necessary to the purpose of deterring crime associated with sexually oriented businesses.
5. Operator disqualification: building inspection
Under the ordinance, defendant will not issue a sexually oriented business license until the premises to be used for the business have "been approved by the health department, fire department, and the building official as being in compliance with applicable laws and ordinances." § 13(C)(6). Defendant must complete such inspections within twenty days after receiving an application. § 13(E). According to defendant, this provision "furthers substantial governmental interests in avoiding urban blight, preventing criminal activity and promoting the health and safety of its citizens." Def.'s Br., dkt. # 21, at 39. Undoubtedly, these are substantial governmental interests. However, defendant has presented no evidence and cited no opinion containing findings showing that sexually oriented businesses tend to present a greater fire hazard than other businesses or are not as sound structurally. In the absence of such evidence, defendant cannot single out sexually oriented businesses for special regulation. See Genusa, 619 F.2d at 1214. By doing so, defendant has created a content-based law that burdens plaintiffs' ability to engage in constitutionally protected speech. Like every other business in the City of Cumberland, the Island Bar must comply with applicable health, fire and building regulations. If defendant is truly concerned about code violations at sexually oriented business such as the one run by plaintiff Schultz, defendant is free to enforce these regulations at any time.
6. Employer disqualification: taxes
Section 13(C)(2) of the ordinance disqualifies applicants who are "overdue in payment to the City of taxes, fees, fines or penalties assessed against or imposed upon him/her in relation to any business." This requirement is without any evidentiary foundation. Specifically, defendant has presented no findings showing that the owners of adult cabarets are more likely than other business owners not to pay their taxes and it has adduced no evidence establishing a correlation between tax delinquency and the undesirable secondary effects associated with sexually oriented businesses. Defendant points to a similar provision in an ordinance governing the issuance of liquor licenses but fails to explain how selling alcohol can be characterized as constitutionally protected speech.
7. Employee licensing
Under section 11(A)(2) of the ordinance, sexually oriented businesses are prohibited *1151 from employing anyone who does not hold a valid employee license. This requirement is constitutional for the same reasons that defendant can require owners and operators to obtain a license. In other words, employee licensing will help insure that individuals with a demonstrated propensity to engage in the type of illicit activity associated with sexually oriented businesses work elsewhere. This purpose could not be accomplished by simply relying on laws that outlaw prostitution.
8. Employee disclosure
Section 11(F) of the ordinance requires an individual applying for a sexually oriented business employee license to disclose substantially the same information that operators must provide. Unlike operators, however, employees must disclose their home telephone numbers and submit a form displaying their fingerprints. § 11(F)(4) and (G)(1). Defendant has satisfied the threshold requirement of presenting some evidence demonstrating a correlation between disclosure of this information and defendant's interest in reducing crime associated with sexually oriented businesses. To effectively investigate the backgrounds of applicants and verify information submitted by applicants, defendant must rely on detailed personal information.
This conclusion notwithstanding, defendant has failed to show that the employee disclosure provisions are narrowly tailored to serve crime prevention. Plaintiff Norwood has submitted an affidavit indicating that she would not perform as an exotic dancer in Cumberland if forced to reveal her real name, home address and telephone number. Norwood fears that a stalker could use Wisconsin's public records law, see Wis.Stat. §§ 19.31 19.39, to obtain this information. Ordinarily, Norwood prefers to conceal her true identity by using a stage name, lest any customer get the wrong idea. In response, defendant asserts that disclosure under the state open records law is not automatic; custodians of public records must perform a balancing test, weighing the general policy in favor of public access against any risk of harm to someone such as Norwood. See Morke v. Record Custodian, 159 Wis. 2d 722, 725, 465 N.W.2d 235, 236 (Ct.App.1990). Even if these protections are inadequate, defendant asserts that plaintiff Norwood's concerns are of no relevance to whether the disclosure provisions are narrowly tailored. Defendant is wrong.
A regulation is narrowly tailored so long as the interest it seeks to promote would be achieved less effectively without the regulation. See Ward, 491 U.S. at 799, 109 S. Ct. 2746. This does not mean, as defendant suggests, that a regulation "may burden substantially more speech than is necessary to further the government's legitimate interest." Id. at 799, 109 S. Ct. 2746. Plaintiff Norwood has averred that the disclosure requirements in the ordinance will not merely burden her willingness to engage in protected speech but squelch it entirely. In the absence of adequate safeguards built into the ordinance that will insure the confidentiality of information disclosed by employee applicants, sections 11(F) and (G) are not narrowly tailored because they "target[] ... more than the exact source of the `evil' [they] seeks to remedy." Frisby v. Schultz, 487 U.S. 474, 485, 108 S. Ct. 2495, 101 L. Ed. 2d 420 (1988).
9. License fees
All applications for a license to operate a sexually oriented business must be accompanied by a $100 non-refundable fee. § 14(A). In the event that defendant issues such a license, an applicant must pay an additional $400 licensing fee. § 14(B). Individuals applying for a sexually oriented business employee license must pay a $25 non-refundable licensing fee. § 14(C). Licenses must be renewed after one year.
It is well-established that the government may not levy a tax on the exercise of First Amendment rights. See Murdock v. Pennsylvania, 319 U.S. 105, 63 S. Ct. 870, 87 L. Ed. 1292 (1943). However, the government may impose a fee that is incidental to a valid licensing scheme. The fee must be a "nominal fee imposed as a regulatory measure to defray the expenses of policing the activities in question." Id. at 113-14, 63 S. Ct. 870. If a government seeks to impose a fee for the operation of a business protected by the First Amendment, it has the burden of demonstrating that the fees are reasonably related to costs of administering the licensing system. See South-Suburban Housing Center v. Greater Suburban Board of Realtors, 935 F.2d 868, 898 (7th Cir.1991).
*1152 Defendant has met this burden. In establishing licensing fees imposed by the ordinance, defendant considered costs associated with processing and investigating an application, ongoing records maintenance, licensing fees imposed on other establishments, such as liquor stores, and the estimated cost of enforcing the ordinance. Plaintiffs have offered no evidence that casts doubt on the accuracy of these estimates.
D. Severability
The prohibition against depicting specified sexual acts and appearing in a state of nudity is facially overbroad. In addition, three other aspects of the ordinance's licensing scheme are unconstitutional. The invalidity of these provisions raises the question whether the rest of the ordinance can he salvaged. An unconstitutionally overbroad statute should be invalidated only "to the extent that it reaches too far, but otherwise left intact." Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 504, 105 S. Ct. 2794, 86 L. Ed. 2d 394 (1985). A statute may be amenable to a limiting construction if it contains a severability clause. See id. at 506, 105 S. Ct. 2794. However, partial invalidation may not be possible if the legislature would not have adopted the statute without the unconstitutional element. See id. Section 22 of the ordinance has this to say about severability:
In the event any section, subsection, clause, phrase or portion of this ordinance is for any reason held illegal invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the remainder of this ordinance. It is the legislative intent of the Common Council that this ordinance would have been adopted if such illegal provision had not been included or any illegal application had not been made.
Even in the face of a strong severability clause such as this one, courts are not authorized to "completely reconstruct a local ordinance ... [when] nothing short of rewriting could save [it]." See American Booksellers Ass'n, Inc. v. Hudnut, 771 F.2d 323, 332 (7th Cir.1985). Severance is improper if the unconstitutional provisions in defendant's ordinance are an integral part of the ordinance. See Ragsdale v. Turnock, 841 F.2d 1358, 1375 (7th Cir.1988).
In Ragsdale, the Seventh Circuit invalidated portions of a statutory scheme regulating the ability of physicians to perform abortions in privately-run clinics. The statute contained provisions forcing clinics to counsel and test patients as well as a comprehensive licensing system that imposed a variety of staffing and physical plant requirements which, if implemented, would have made clinics "the functional equivalent of small hospitals." Id. at 1374. The court found that these aspects of the statute violated the right to privacy as established by the Supreme Court in Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). Addressing the issue of severability, the Seventh Circuit concluded that the statute did not represent a coherent regulatory scheme without the unconstitutional provisions a troubling observation in light of the stiff penalties faced by physicians who violated the law. See Ragsdale, 841 F.2d at 1375. No useful purpose would be served by rewriting minor provisions of the law in an attempt to make the entire statutory framework constitutional. See id.
The unconstitutional provisions in defendant's ordinance cannot be severed from the ordinance as a whole. Doing so would produce an unclear statutory scheme that most likely would represent a greater problem than an unabridged version of the ordinance. Without a workable definition of "sexually oriented business," defendant has no way of identifying those establishments that it may legitimately regulate and license. In essence, what the ordinance needs is not redaction but revision.
ORDER
IT IS ORDERED that:
1. The motion of plaintiffs Joseph Schultz and Tonya Norwood to strike certain affidavits submitted by defendant City of Cumberland is DENIED;
2. The motion of plaintiffs for summary judgment is GRANTED;
3. Section 8(A) of City of Cumberland Ordinance Section 12.15 is unconstitutionally overbroad.
4. Sections 11(F) and (G), 13(C)(6) and 13(C)(2) of the ordinance violate the First Amendment of the United States Constitution.
*1153 5. Defendant City of Cumberland is enjoined permanently from enforcing the ordinance as it is presently drafted.
6. The clerk of the court is directed to enter judgment for plaintiffs and close this case.
NOTES
[1] Defendant has agreed to amend sections 11(E)(10) and 11(F)(7) insofar as they require employee and operator applicants to disclose their social security numbers.
[2] Section 11(E)(3) requires applicants to disclose not only their own criminal history, but the criminal history of persons with whom they reside. Similarly, an applicant may not receive a license if someone with whom the applicant lives has been convicted of specified criminal activity. § 13(C)(5). There are other disclosure and disqualification provisions in the ordinance that pertain to third parties. Plaintiffs have not challenged these provisions and it does not appear that they have standing to do so. Third party disclosure requirements were not a feature of the ordinances at issue in TK's Video, FW/PBS, Tee & Bee or Ellwest. I have grave doubts whether such requirements would withstand scrutiny. Nevertheless, this issue is not before the court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3050603/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CAROL BOLT, No. 06-35993
Plaintiff-Appellant, D.C. No.
v. CV-02-00021-F-
UNITED STATES OF AMERICA, RRB
Defendant-Appellee.
OPINION
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, District Judge, Presiding
Argued and Submitted
August 10, 2007—Anchorage, Alaska
Filed December 3, 2007
Before: J. Clifford Wallace, John T. Noonan, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Paez;
Concurrence by Judge Wallace
15599
15602 BOLT v. UNITED STATES
COUNSEL
Robert A. Sparks, Law Office of Robert A. Sparks, Fairbanks,
Alaska, for the appellant.
Eric J. Feigin, Department of Justice, Civil Division, Wash-
ington, D.C., for the appellee.
OPINION
PAEZ, Circuit Judge:
After Carol Bolt fell on snow and ice in the common park-
ing area of the U.S. Army apartment complex where she
BOLT v. UNITED STATES 15603
lived, in Fort Wainwright, Alaska, she brought a negligence
claim against the United States pursuant to the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. § 1346. The district court
held that the discretionary function exception to the FTCA’s
grant of jurisdiction, see § 2680(a), did not apply because
Army policies set forth specific and mandatory rules for snow
and ice removal from parking areas. It granted the govern-
ment’s motion for summary judgment, however, concluding
that the Army was similar to a municipality and therefore, in
light of Hale v. City of Anchorage, 389 P.2d 434 (Alaska
1964), not liable for injuries due to natural accumulations of
snow and ice.
We affirm in part and reverse in part and remand for further
proceedings. We affirm the district court’s jurisdictional rul-
ing that the FTCA’s discretionary function exception does not
apply, but we reverse the grant of summary judgment pursu-
ant to Hale because the relevant question here is whether a
private landlord, not a municipality, would be liable for negli-
gence under similar circumstances. Lastly, we deny Bolt’s
request for reassignment to a different district court judge on
remand.
I.
In April 1999, Bolt slipped on snow and ice near a dump-
ster in a public parking area of her apartment complex, which
is located on the Fort Wainwright military base. As a result
of the accident Bolt suffered a broken ankle. Because Bolt
was pregnant at the time of the fall, she underwent necessary
surgery on her ankle without general anesthesia. Despite the
surgery, her ankle never completely healed and poses a per-
manent disability.
Bolt brought a civil suit against the United States in the
United States District Court for the District of Alaska, alleg-
ing negligence under 28 U.S.C. § 1346 and seeking money
damages. The district court concluded that it had jurisdiction
15604 BOLT v. UNITED STATES
over her claim but granted the government’s motion for sum-
mary judgment, relying on a 1964 case by the Alaska
Supreme Court, which held that municipalities are “not liable
for injuries sustained by persons due to ice and snow on side-
walks.” Hale, 389 P.2d at 437. Bolt timely appealed.
II.
As we will explain, the district court correctly exercised
jurisdiction over Bolt’s claim under 28 U.S.C. § 1346(b); we
have jurisdiction over her timely appeal under § 1291. We
review de novo a district court’s grant of summary judgment.
Delta Sav. Bank v. United States, 265 F.3d 1017, 1021 (9th
Cir. 2001).
III.
[1] Section 1346(b) establishes federal jurisdiction over
civil suits for money damages against the United States:
for injury or loss of property, or personal injury or
death caused by the negligent or wrongful act or
omission of any employee of the Government while
acting within the scope of his office or employment,
under circumstances where the United States, if a
private person, would be liable to the claimant in
accordance with the law of the place where the act
or omission occurred.
“Even when the injury occurs on federal property, the finding
of negligence must be based upon state law.” Lutz v. United
States, 685 F.2d 1178, 1184 (9th Cir. 1982). As the party
seeking federal jurisdiction, Bolt must therefore demonstrate
that Alaska law would recognize a cause of action in negli-
gence against a private individual for like conduct.
[2] Alaska imposes a statutory duty on civilian landlords to
“keep all common areas of the premises in a clean and safe
BOLT v. UNITED STATES 15605
condition,” Alaska Stat. § 34.03.100(a)(2), a duty that
includes an obligation to remove snow and ice, see Coburn v.
Burton, 790 P.2d 1355, 1358 (Alaska 1990) (applying Alaska
Stat. § 34.03.100(a)(2)). Pursuant to § 2674, the government
is liable for its employees’ negligence “in the same manner
and to the same extent as a private individual under like cir-
cumstances.” Because an Alaska landlord would be liable to
a private individual under like circumstances, Bolt adequately
alleged a claim under the FTCA based on the Army’s failure
to clear the common parking area of snow and ice.
It is immaterial to this jurisdictional analysis that the
Army’s Snow Removal Policy is more specific than the anal-
ogous state law duty. See Indian Towing Co. v. United States,
350 U.S. 61, 67 (1955) (rejecting argument that FTCA liabil-
ity is predicated on “the presence of identical private activi-
ty”); Lutz, 685 F.2d at 1183-85 (finding “a state law duty
enforceable under the FTCA,” where the federal regulation at
issue was more specific than the state law duty). As we
explained in Lutz: “The federal statute or regulation under
which the employee acted only becomes pertinent when a
state law duty is found to exist. The federal statute or regula-
tion may then provide the standard for reasonable care in
exercising the state law duty.” 685 F.3d at 1184. Here, Alaska
law imposes a duty on private landlords to keep common
areas clear of snow and ice for the safety of tenants. Pursuant
to the Army’s Snow Removal Policy, the standard of reason-
able care in exercising that state law duty was to remove snow
and ice from Family Housing Parking Areas once per year, in
late February or March.
The government argues, however, that Bolt’s claim falls
under the discretionary function exception to § 1346’s waiver
of sovereign immunity and that the district court therefore
improperly exercised jurisdiction.
[3] Section 2680(a) provides that no liability shall lie for
claims “based upon the exercise or performance or the failure
15606 BOLT v. UNITED STATES
to exercise or perform a discretionary function or duty on the
part of a federal agency or an employee of the Government.”
Pursuant to the two-prong test announced in United States v.
Gaubert, 499 U.S. 315 (1991), to determine the applicability
of this exception:
we ask whether the alleged wrongful conduct vio-
lated a specific and mandatory regulation or statute.
If so, the conduct is outside the realm of discretion.
If there is no mandatory regulation or statute
involved, we then ask whether the conduct was sus-
ceptible to being based upon social, economic, or
political policy.
Bibeau v. Pac. Nw. Research Found., Inc., 339 F.3d 942, 945
(9th Cir. 2003) (citations omitted). “The government bears the
burden of proving that the discretionary function applies.”
GATX/Airlog Co. v. United States, 286 F.3d 1168, 1174 (9th
Cir. 2002). It has failed to do so here.
A.
The Gaubert test’s first prong asks whether the alleged
conduct “violated a specific and mandatory regulation or stat-
ute.” Bibeau, 339 F.3d at 945.
The Army’s Snow Removal Policy requires snow removal
from family housing parking areas “once per year in late Feb-
ruary or March.” Its 1998-99 Housing Handbook additionally
imposed specific duties on the Senior Occupant, Sergeant
Khan, to “insure all . . . common areas are free of trash, snow
and ice” and to report conditions beyond his capability to han-
dle to the Mayor of the complex.
The district court correctly concluded that these require-
ments were “specific and mandatory” such that the discretion-
ary function exception did not apply. See Gaubert, 499 U.S.
at 322 (rejecting application of the exception when the “fed-
BOLT v. UNITED STATES 15607
eral statute, regulation, or policy specifically prescribes a
course of action for an employee to follow, because the
employee has no rightful option but to adhere to the directive”
(internal quotation marks omitted)); Summers v. United
States, 905 F.2d 1212, 1214 (9th Cir. 1990) (explaining that
a government official’s failure to take a required action
“would not be covered under the FTCA’s discretionary func-
tion exception to liability”).
The fact that clearing snow and ice from Family Housing
Parking Areas ranks fifth in the Snow Removal Policy’s
sequential priority system for snow removal operations does
not render the obligation to perform this removal once a year,
by the end of March, discretionary. While snow and ice
removal from some other areas takes precedence over Family
Housing Parking Areas, nothing in the Snow Removal Policy
authorizes the Army not to meet its yearly deadline to clear
such areas “once per year in late February or March.” At
most, the sequential priority system—including a provision
that this system “is subject to change during emergency
situations”—gives the Army discretion to change dates within
the expressly mandated February to March time-frame. Nor
does the “Special Notice” set forth later in the Policy that
“[a]reas in which vehicles have not been removed will be
bypassed and moved to bottom of the list” give the Army dis-
cretion not to clear snow from these areas until after the dead-
line.1 See Navarette v. United States, 500 F.3d 914, 917-18
(9th Cir. 2007) (concluding that Army’s obligation to “prop-
erly mark[ ] or fence[ ]” dangerous conditions was mandatory
and explaining that it “retained discretion as to how to mark
1
Even if the Snow Removal Policy did give the Army discretion to clear
snow after March under certain circumstances, the Army has not alleged
that it faced any of these circumstances here. Cf. GATX/Airlog Co., 286
F.3d at 1174 (imposing burden of proving the discretionary function
exception on the government); O’Toole v. United States, 295 F.3d 1029,
1032 (9th Cir. 2002) (“All of the factual allegations in the plaintiff’s com-
plaint are to be taken as true in reviewing a discretionary function excep-
tion dismissal under the FTCA.”).
15608 BOLT v. UNITED STATES
or fence drop-offs, but that does not mean it retained discre-
tion whether to do so”); Soldano v. United States, 453 F.3d
1140, 1150 (9th Cir. 2006) (holding that flexibility in Park
Service’s standards for establishing speed limits did not mean
that “the Standards’ basic, scientific safety specifications may
be disregarded”).
[4] In sum, the Snow Removal Policy expressly imposes a
specific and mandatory duty to clear Family Housing Parking
Areas of snow and ice once a year, before the end of March.
The Army has therefore failed its burden under the first Gau-
bert prong.
B.
Even if we were to conclude that the Snow Removal Policy
allowed the Army some discretion in deciding when to
remove snow from Family Housing Parking Areas and how
to prioritize that duty, under the second Gaubert prong we
would nonetheless conclude that such discretion “is [not] the
type of decision-making that the discretionary function was
designed to protect.” Conrad v. United States, 447 F.3d 760,
765 (9th Cir. 2006).
“The purpose of the [discretionary function] exception is
‘to prevent judicial “second-guessing” of legislative and
administrative decisions grounded in social, economic, and
political policy through the medium of an action in tort.’ ”
ARA Leisure Servs. v. United States, 831 F.2d 193, 194 (9th
Cir. 1987) (quoting United States v. S.A. Empresa de Viacao
Aerea Rio Grandense, 467 U.S. 797, 814 (1984)); see also
Kennewick Irrigation Dist. v. United States, 880 F.2d 1018,
1023 (9th Cir. 1989) (“[T]he discretionary function exception
was aimed particularly at the government’s actions in its role
as a regulator.” (internal quotation marks omitted)). At this
second step, it is therefore “insufficient for the government to
show merely that some choice was involved in the decision-
making process. The balancing of policy considerations is a
BOLT v. UNITED STATES 15609
necessary prerequisite.” ARA Leisure Servs., 831 F.2d at 195
(alterations and internal quotation marks omitted).
[5] The government proffers two policy considerations, nei-
ther of which supports application of the exception. It first
argues that the Army considers its limited financial resources
in making snow removal decisions. In enacting § 2680, how-
ever, Congress did not intend to protect decision-making
based on budgetary constraints. See O’Toole, 295 F.3d at
1035-36; ARA Leisure Servs., 831 F.3d at 196.
[6] The government’s second policy rationale—that the
Army considers its policy of promoting self-help and respon-
sibility among resident homeowners in making snow removal
decisions—likewise fails. The Army chose, in drafting the
Snow Removal Policy, to assign significant responsibility for
snow and ice removal to residents. It did not, however,
include the promotion of self-help among residents as a factor
warranting the exercise of discretion in deciding when to con-
duct snow and ice removal from Family Housing Parking
Areas. Assuming that the Snow Removal Policy allows the
Army some discretion in deciding when to clear snow and ice
from these areas, under the Policy’s express terms the Army
may consider only weather, emergency situations, and
whether parked cars would block removal in exercising this
discretion. Whereas it also could have included the promotion
of self-help and responsibility as an additional factor authoriz-
ing a discretionary decision to postpone snow and ice
removal, it did not do so. “[T]he design of a course of govern-
mental action is shielded by the discretionary function excep-
tion, whereas the implementation of that course of action is
not.” Whisnant v. United States, 400 F.3d 1177, 1181 (9th Cir.
2005). Because the Army did not design its Snow Removal
Policy so as to allow for consideration of resident self-help in
deciding when to conduct the yearly snow and ice removal,
it cannot shield its failure to implement its own requirement
under this rationale.
15610 BOLT v. UNITED STATES
[7] We have also previously explained that “maintenance
work is not the kind of regulatory activity” to which the
Supreme Court envisioned the discretionary function excep-
tion applying. ARA Leisure Servs., 831 F.2d at 195 (rejecting
government’s characterization of its failure to maintain a seg-
ment of a road in a national park as a policy-grounded deci-
sion); see also id. (noting an absence of any “clear link
between Park Service road policies and the condition of Thor-
oughfare Pass”); O’Toole, 295 F.3d at 1036 (holding that
Bureau of Indian Affairs’ failure to repair an irrigation system
“involve[d] a mundane question of routine ditch mainte-
nance” and was “not the sort of public policy issue that the
discretionary function exception is designed to protect”).
“The danger that the discretionary function exception will
swallow the FTCA is especially great where the government
takes on the role of a private landowner,” O’Toole, 295 F.3d
at 1037, and we are mindful of our duty “to effectuate Con-
gress’s intent to compensate individuals harmed by govern-
ment negligence[ by liberally construing] the FTCA, as a
remedial statute” and by reading “its exceptions . . . narrow-
ly,” id.
[8] Not only does clearing snow and ice from parking lots
constitute a matter of routine maintenance beyond the scope
of the discretionary function exception, but the maintenance
at issue here “involves safety considerations under an estab-
lished policy” rather than “the balancing of competing public
policy considerations.” ARA Leisure Servs., 831 F.2d at 195
(alteration and internal quotation marks omitted). The Army’s
failure to remove snow and ice from the Family Housing
Parking Area where Bolt slipped obviously implicated resi-
dents’ safety—indeed, Bolt presented evidence that several
other residents had slipped on “black ice” in the same area
during the spring of 1999—rendering inapplicable any public
policy consideration to which the Army might now point. In
these circumstances “[i]mposing tort liability will not lead to
judicial second-guessing of [the Army’s] policy decisions.”
ARA Leisure Servs., 831 F.2d at 196; see also Seyler v. United
BOLT v. UNITED STATES 15611
States, 832 F.2d 120, 123 (9th Cir. 1987) (“[W]e doubt that
any decision not to provide adequate [warning] signs would
be of the nature and quality that Congress intended to shield
from tort liability.”). Here, as in ARA Leisure Services, “the
rationale for the [discretionary function] exception falls
away.” 831 F.3d at 195.
IV.
Having concluded that the district court properly exercised
jurisdiction over Bolt’s claim, we next consider whether it
erred in granting summary judgment to the government based
on its conclusion that the Army did not owe her a duty to
remove snow and ice from the area where she slipped.
[9] As discussed above, Alaska Statute section
34.03.100(a)(2) imposes a duty on private landlords to “keep
all common areas of the premises in a clean and safe condi-
tion,” including an obligation to remove snow and ice. See
Coburn, 790 P.2d at 1358. Because it is undisputed that the
Army failed to meet this duty, summary judgment in the gov-
ernment’s favor was inappropriate.
[10] In concluding to the contrary, the district court incor-
rectly relied on Hale, which holds that municipalities are not
liable for “injuries sustained by persons due to ice and snow
on sidewalks.” 389 P.3d at 437. The FTCA creates no excep-
tions for government conduct similar to that undertaken by
municipalities. The relevant question for purposes of Bolt’s
claim is whether a private landlord would owe tenants a duty
to keep common areas free of snow and ice. 28 U.S.C.
§ 2674; Lutz, 685 F.2d at 1184. Under Alaska law the Army
owed Bolt a duty to remove snow and ice from common areas
such as the Parking Area where she slipped, and Bolt has
alleged that the Army breached this duty in failing to meet the
standard of care prescribed by the Snow Removal policy.
Whether the Army did in fact breach its duty is a question of
fact to be determined on remand, along with the elements of
15612 BOLT v. UNITED STATES
causation and harm. See Lyons v. Midnight Sun Transp.
Servs., Inc., 928 P.2d 1202, 1204 (Alaska 1996) (enumerating
elements of negligence claim under Alaska law).
V.
[11] Finally, we deny Bolt’s request for reassignment to a
different district judge on remand, pursuant to § 2106. In gen-
eral, when presented with such a request we consider:
(1) whether the original judge would reasonably be
expected upon remand to have substantial difficulty
in putting out of his or her mind previously-
expressed views or findings determined to be errone-
ous or based on evidence that must be rejected, (2)
whether reassignment is advisable to preserve the
appearance of justice, and (3) whether reassignment
would entail waste and duplication out of proportion
to any gain in preserving the appearance of fairness.
Living Designs, Inc. v. E.I. Dupont de Nemours & Co., 431
F.3d 353, 372-73 (9th Cir. 2005) (internal quotation marks
omitted). Although the district judge incorrectly applied Hale,
we have no reason to think that on remand he will have diffi-
culty applying the correct law to Bolt’s negligence claim. Nor
do these circumstances suggest that reassignment is “advis-
able to preserve the appearance of justice.”
VI.
Bolt properly alleged a claim for negligence under the
FTCA based on the Army’s failure to meet its duty to conduct
its yearly snow and ice removal from the parking area where
she slipped prior to April 1999. This omission does not fall
with the discretionary function exception to the Act. Because
a similarly situated private landlord would be liable under
similar circumstances, we must reverse the summary judg-
BOLT v. UNITED STATES 15613
ment and remand for further proceedings consistent with this
opinion.
AFFIRMED in part; REVERSED in part;
REMANDED.
WALLACE, Circuit Judge, concurring:
I concur in the result reached by the majority. Section
2680(a) of the FTCA provides an exception for claims based
on the “exercise or performance or . . . failure to exercise or
perform a discretionary function or duty.” Under United
States v. Gaubert, 499 U.S. 315 (1991), we first ask “whether
the alleged wrongful conduct violated a specific and manda-
tory regulation or statute.” Bibeau v. Pac. Nw. Research
Found., Inc., 339 F.3d 942, 945 (9th Cir. 2003) (citing Gau-
bert, 499 U.S. at 324-25). If the answer is yes, our analysis
ends, and the discretionary exception does not apply. Id.
Bolt alleges that Sergeant Khan breached his duty to ensure
that the residents removed the snow from the lot as well as his
duty to report the lot’s hazardous conditions to the appropriate
authorities.
The Residents’ Handbook charges Sergeant Khan, as
Senior Occupant, with responsibility “for the supervision, as
necessary, of resident policing and appearance.” This includes
“timely removal of snow and ice from steps, porches, drive-
ways and sidewalks.” Although the Handbook makes resi-
dents responsible “for the removal (within 24 hours) of snow
and ice from steps, porches, driveways, mailboxes, and side-
walks,” the Senior Occupant must ensure “all residents com-
ply with th[is] instruction[ ].” According to the Handbook,
such “[c]oordination of building residents is necessary to
[e]nsure all adjoining and common areas are free of trash,
snow and ice.” This shows a “specific and mandatory” duty,
15614 BOLT v. UNITED STATES
not a discretionary one. See Kennewick Irrigation Dist. v.
United States, 880 F.2d 1018, 1027 (9th Cir. 1989) (as
amended).
Similarly, Sergeant Khan had a non-discretionary duty to
report hazardous conditions in the lot to the appropriate
authorities to the extent he was unable to remedy them. The
Handbook directs that the Senior Occupant “need[s] to report”
when “deficiencies occur or conditions exist that are beyond
[his] authority or capability to handle.”
Under the test outlined in Bibeau, this is all we must do to
decide the issue of jurisdiction. Once we determine that the
alleged conduct violated a specific or mandatory regulation,
that conduct automatically falls outside the realm of the dis-
cretionary exception and we need not proceed with any other
analysis. Thus, I conclude the majority’s remaining jurisdic-
tion analysis is unnecessary.
As there is jurisdiction, I agree with the majority that under
Alaska law, the landlord (government) had a duty to “keep all
common areas of the premises in a clean and safe condition,”
Alaska Stat. § 34.03.100(a)(2), a duty that included removing
snow and ice. See Coburn v. Burton, 790 P.2d 1355, 1358
(Alaska 1990).
Thus the summary judgment of the district court should be
reversed. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3050605/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHERYL BLANCHARD,
Plaintiff-Appellant,
No. 06-35388
v.
D.C. No.
MORTON SCHOOL DISTRICT; RUSS
DAVIS, Superintendent; REGINE CV-02-05101-FDB
ORDER AND
ALEKSUNAS, SE Teacher; JIM
AMENDED
GROSSMAN, SLP; ROBYN GOODWIN,
OPINION
Principal,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Franklin D. Burgess, District Judge, Presiding
Argued and Submitted
July 31, 2007—Portland, Oregon
Filed September 20, 2007
Amended December 3, 2007
Before: Alfred T. Goodwin, Mary M. Schroeder, and
Susan P. Graber, Circuit Judges.
Opinion by Judge Schroeder
15491
BLANCHARD v. MORTON SCHOOL DISTRICT 15493
COUNSEL
Lonnie Davis, Disabilities Law Project, Seattle, Washington,
for the plaintiff-appellant.
Jocelyn J. Lyman, Law, Lyman, Daniel, Kamerrer & Bog-
danovich, P.S., Olympia, Washington, for the defendants-
appellees.
ORDER
The Opinion filed on September 20, 2007, is amended as
follows: on slip Opinion page 12821, remove lines 21 through
34, and insert the following text:
Blanchard also brings claims under section 504 of
the Rehabilitation Act of 1973, 29 U.S.C. § 794(a),
and title II of the ADA, 42 U.S.C. § 12132. Under
those statutes, Blanchard is a proper plaintiff, at least
insofar as she is asserting and enforcing the rights of
her son and incurring expenses for his benefit. See
Greater L.A. Council on Deafness, Inc. v. Zolin, 812
15494 BLANCHARD v. MORTON SCHOOL DISTRICT
F.2d 1103, 1115 (9th Cir. 1987); see also Innovative
Health Sys., Inc. v. City of White Plains, 117 F.3d
37, 46-47 (2d Cir. 1997) (holding that a hospital had
standing to sue under the Rehabilitation Act and the
ADA), superseded on other grounds, as recognized
in Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 171
n.7 (2d Cir. 2001). As the Supreme Court has noted,
“a parent of a child with a disability has a particular
and personal interest” in preventing discrimination
against the child. Winkelman, 127 S. Ct. at 2003.
Blanchard is not entitled to the damages that she
seeks, however. We need not decide whether dam-
ages are available for a parent’s own emotional dis-
tress resulting from the enforcement of a child’s
educational rights, because Blanchard abandoned
that claim by failing to raise it in her brief on appeal.
See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.
1999). Her claim for lost profits essentially seeks
compensation for acting as her own lawyer. Pro se
plaintiffs, though, are not entitled to attorney’s fees.
See Kay v. Ehrler, 499 U.S. 432, 438 (1991).
Because Blanchard cannot recover damages, the dis-
trict court properly dismissed her Rehabilitation Act
and ADA claims.
No future petitions for rehearing or petitions for rehearing
en banc will be entertained.
OPINION
SCHROEDER, Circuit Judge:
Plaintiff-Appellant Cheryl Blanchard seeks damages to
compensate her for lost income and the emotional distress she
experienced during her ultimately successful efforts to obtain
BLANCHARD v. MORTON SCHOOL DISTRICT 15495
benefits for her son under the Individuals with Disabilities
Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482. When this
matter was before us previously, we reversed the district
court’s dismissal for failure to exhaust administrative reme-
dies. Blanchard v. Morton Sch. Dist., 420 F.3d 918 (9th Cir.
2005) (“Blanchard I”). We held that, because Blanchard
sought damages on her own behalf rather than her son’s, no
administrative remedies existed. Id. at 921-22. We expressed
no opinion on the merits of her claim. Id. at 922.
On remand, the district court granted summary judgment
for Defendants, holding that Blanchard had no individual
rights under the IDEA and that the IDEA’s enforcement
scheme did not contemplate the damages she seeks. It further
held that, because Blanchard is not a qualified individual with
a disability, her claim is not cognizable under either title II of
the Americans with Disabilities Act of 1990 (“ADA”), 42
U.S.C. § 12132, or section 504 of the Rehabilitation Act of
1973, 29 U.S.C. § 794(a). See 42 U.S.C. § 12132; 29 U.S.C.
§ 705(20).
After the district court’s entry of summary judgment, how-
ever, the United States Supreme Court held that parents do
have individually enforceable substantive rights under the
IDEA. Winkelman ex rel. Winkelman v. Parma City Sch.
Dist., 127 S. Ct. 1994, 1999 (2007). The Court said that those
rights were sufficient to permit a parent to appear pro se in
pursuit of IDEA remedies to secure for a child the free appro-
priate public education guaranteed under § 1415 of the IDEA.
Id. at 2005.
[1] We have held that money damages are not available
under the IDEA for the pain and suffering of a disabled child.
Witte ex rel. Witte v. Clark County Sch. Dist., 197 F.3d 1271,
1275 (9th Cir. 1999). The question before us now is whether
42 U.S.C. § 1983 creates a cause of action for money dam-
ages under the IDEA for the lost earnings and suffering of a
parent pursuing IDEA relief. We hold that it does not. We
15496 BLANCHARD v. MORTON SCHOOL DISTRICT
affirm the district court’s judgment in favor of the school dis-
trict after taking into account the intervening Supreme Court
decision in Winkelman.
[2] Section 1983 does not in itself create any right under
federal law. It provides remedies for violations of federal
rights only where a “federal statute creates an individually
enforceable right in the class of beneficiaries to which [plain-
tiff] belongs.” City of Rancho Palos Verdes v. Abrams, 544
U.S. 113, 120 (2005).
[3] In Winkelman, 127 S. Ct. at 1999, the Supreme Court
provided a thorough analysis of the IDEA’s “interlocking stat-
utory” enforcement scheme. The Court catalogued the
IDEA’s numerous provisions creating substantive rights, and
it concluded that the statute confers those rights on the parents
of disabled children as well as on the children themselves. Id.
at 2000-05. Notably, all the rights created by the statute,
including the rights to reimbursement of expenses and to
recovery of attorney’s fees, relate to necessary efforts to
secure a child’s free appropriate public education. See 20
U.S.C. § 1400(d)(1)(A)-(B) (stating that the IDEA’s substan-
tive and procedural protections exist in order to “ensure that
all children with disabilities have available to them a free
appropriate public education,” and to protect the rights of the
parents of such children in the process of ensuring the chil-
dren’s access to education); 20 U.S.C. § 1415(b)(6) (provid-
ing a judicial remedy for violations of any right “relating to
the identification, evaluation, or educational placement of [a]
child”).
[4] In Smith v. Robinson, 468 U.S. 992, 1013 (1984), the
Supreme Court held that the Education of the Handicapped
Act (“EHA”), the predecessor to the IDEA, was the exclusive
means of remedying violations of the rights it guaranteed. In
response, Congress amended the statute to include what now
is 20 U.S.C. § 1415(l).1 Handicapped Children’s Protection
1
“Nothing in this chapter shall be construed to restrict or limit the rights,
procedures, and remedies available under the Constitution, the Americans
BLANCHARD v. MORTON SCHOOL DISTRICT 15497
Act of 1986, Pub. L. No. 99-372, § 3, 100 Stat. 796, 797.
There is an existing circuit split on whether, with the amend-
ment, Congress intended the IDEA rights to be enforceable
under § 1983.2 The First, Third, Fourth, and Tenth Circuits
have held that Congress did not so intend.3 The Second and
Seventh Circuits have held that Congress did so intend.4 The
Eighth Circuit has holdings going both ways.5 We are per-
suaded by the recent thoughtful, well-reasoned opinion of the
Third Circuit. See A.W. v. Jersey City Pub. Sch., 486 F.3d
791, 797-803 (3d Cir. 2007) (en banc) (surveying the existing
circuit split and analyzing recent Supreme Court precedent on
the availability of § 1983 as a remedy for violation of a fed-
eral statute).6 In A.W., the Third Circuit overruled its prior
authority to the contrary and held:
with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or
other Federal laws protecting the rights of children with disabilities . . . .”
20 U.S.C. § 1415(l) (citations omitted).
2
In Department of Education v. Katherine D., 727 F.2d 809, 820 (9th
Cir. 1984), we held that the EHA’s “comprehensive and exclusive reme-
dial scheme . . . precludes reliance upon a cause of action under section
1983.” However, we decided Katherine D. before Congress amended the
IDEA. Consequently, although our holding today is consistent with it,
Katherine D. cannot answer the question of what Congress intended when
it amended the IDEA.
3
Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 28 (1st Cir. 2006); A.W. v.
Jersey City Pub. Sch., 486 F.3d 791, 803 (3d Cir. 2007) (en banc); Sellers
v. Sch. Bd., 141 F.3d 524, 529 (4th Cir. 1998); Padilla v. Sch. Dist. No.
1, 233 F.3d 1268, 1273 (10th Cir. 2000).
4
Mrs. W. v. Tirozzi, 832 F.2d 748, 755 (2d Cir. 1987); Marie O. v.
Edgar, 131 F.3d 610, 622 (7th Cir. 1997).
5
Compare Digre v. Roseville Sch. Indep. Dist. No. 623, 841 F.2d 245,
250 (8th Cir. 1988) (“Mrs. Digre was entitled to bring a section 1983
action based on alleged violations of the [predecessor to the IDEA] . . . .”),
with Heidemann v. Rother, 84 F.3d 1021, 1033 (8th Cir. 1996) (“We now
hold as a matter of law that plaintiffs in the present case cannot recover
general or punitive damages [under § 1983] arising out of defendants’
alleged violations of the IDEA . . . .”; failing even to mention or cite
Digre).
6
We note that the holdings of the Second and Seventh Circuits predate
recent Supreme Court precedent on the availability of § 1983 actions, and
the Second Circuit’s opinion does not discuss congressional intent at all.
15498 BLANCHARD v. MORTON SCHOOL DISTRICT
The IDEA includes a judicial remedy for violations
of any right “relating to the identification, evalua-
tion, or educational placement of [a] child, or the
provision of a free appropriate public education to
such child.” § 1415(b)(6). Given this comprehensive
scheme, Congress did not intend § 1983 to be avail-
able to remedy violations of the IDEA . . . .
Id. at 803 (alteration in original). We now join the First,
Third, Fourth, and Tenth Circuits and hold that the compre-
hensive enforcement scheme of the IDEA evidences Con-
gress’ intent to preclude a § 1983 claim for the violation of
rights under the IDEA.
[5] Therefore, in light of Winkelman, the district court was
not correct in ruling that the IDEA creates no individual rights
in parents. However, insofar as the district court held that
IDEA does not contemplate the remedy Blanchard seeks and
in that regard creates no right enforceable under § 1983, the
district court must be affirmed.
Blanchard also brings claims under section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. § 794(a), and title II of
the ADA, 42 U.S.C. § 12132. Under those statutes, Blanchard
is a proper plaintiff, at least insofar as she is asserting and
enforcing the rights of her son and incurring expenses for his
benefit. See Greater L.A. Council on Deafness, Inc. v. Zolin,
812 F.2d 1103, 1115 (9th Cir. 1987); see also Innovative
Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 46-47
(2d Cir. 1997) (holding that a hospital had standing to sue
under the Rehabilitation Act and the ADA), superseded on
other grounds, as recognized in Zervos v. Verizon N.Y., Inc.,
252 F.3d 163, 171 n.7 (2d Cir. 2001). As the Supreme Court
has noted, “a parent of a child with a disability has a particu-
lar and personal interest” in preventing discrimination against
the child. Winkelman, 127 S. Ct. at 2003.
[6] Blanchard is not entitled to the damages that she seeks,
however. We need not decide whether damages are available
BLANCHARD v. MORTON SCHOOL DISTRICT 15499
for a parent’s own emotional distress resulting from the
enforcement of a child’s educational rights, because Blan-
chard abandoned that claim by failing to raise it in her brief
on appeal. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.
1999). Her claim for lost profits essentially seeks compensa-
tion for acting as her own lawyer. Pro se plaintiffs, though,
are not entitled to attorney’s fees. See Kay v. Ehrler, 499 U.S.
432, 438 (1991). Because Blanchard cannot recover damages,
the district court properly dismissed her Rehabilitation Act
and ADA claims.
The judgment of the district court is AFFIRMED. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2306559/ | 651 F.Supp. 913 (1986)
In re ALL MAINE ASBESTOS LITIGATION. (BIW CASES)
United States District Court, D. Maine.
December 29, 1986.
*914 Peter J. Rubin, Bernstein, Shur, Sawyer & Nelson, Portland, Me., for Wellington defendants.
Mark G. Furey, Portland, Me., for Raymark Industries, Inc.
Joseph Cox, Jr., Torts Branch, Civil Div., U.S. Dept. of Justice, Washington, D.C., for third party defendant U.S.A.
MEMORANDUM OF OPINION AND ORDER ON THE GOVERNMENT'S MOTION TO RECONSIDER AND FOR ENTRY OF FINAL JUDGMENT
GIGNOUX, Senior District Judge.
Third-party defendant United States of America has moved for reconsideration of this Court's Memorandum of Opinion and Order dated February 23, 1984, denying the United States' motion to dismiss or for summary judgment on Count VI of Model Third-Party Complaint A. Defendant asbestos *915 manufacturers have filed this complaint in all asbestos-related cases brought in this Court by present and former employees, and the representatives of deceased employees, of Bath Iron Works (BIW), a private shipyard located in Bath, Maine. See In re All Maine Asbestos Litigation, 581 F.Supp. 963 (D.Me.1984). In support of its motion, the United States relies on the recent decision of the United States Court of Appeals for the First Circuit in Drake v. Raymark Industries, Inc., 772 F.2d 1007 (1st Cir.1985), cert. denied, ___ U.S. ___, 106 S.Ct. 1994, 90 L.Ed.2d 675 (1986). See also In re All Maine Asbestos Litigation (PNS Cases), 772 F.2d 1023 (1st Cir.1985), cert. denied, ___ U.S. ___, 106 S.Ct. 1994, 90 L.Ed.2d 675 (1986). As Count VI is the only remaining claim for relief in Model Third-Party Complaint A, if, upon reconsideration, the Court dismisses Count VI, the United States seeks entry of final judgment dismissing the third-party complaint in each action.
The factual and legal circumstances surrounding the filing of Model Third-Party Complaint A are fully set forth in this Court's previous decision, and thus need not be repeated here. It is sufficient to say that plaintiffs have sued various manufacturers and suppliers of asbestos-containing products seeking to recover damages for injuries allegedly sustained as a result of exposure to asbestos dust during the course of their (or their decedents') employment at BIW while performing construction or repair work on U.S. naval vessels. The complaints assert causes of action based on negligence, strict liability, and breach of express and implied warranties. Jurisdiction is predicated upon diversity of citizenship. See 28 U.S.C. § 1332(a) (1982); Austin v. Unarco Industries, Inc., 705 F.2d 1, 3 (1st Cir.), cert. dismissed, 463 U.S. 1247, 104 S.Ct. 34, 77 L.Ed.2d 1454 (1983). Certain of these defendants have filed Model Third-Party Complaint A in each of the actions seeking contribution and/or noncontractual indemnification against the United States.
Model Third-Party Complaint A asserted nine claims for relief against the United States. In its All Maine decision, this Court granted the United States' motion to dismiss or for summary judgment with respect to Counts I-V and Counts VII-IX. See 581 F.Supp. at 969-74, 977-80. With respect to Count VI, insofar as that count sought contribution and/or indemnification from the United States in its capacity as vessel owner, the Court found that there were disputed issues of material fact which rendered summary judgment inappropriate. See id. at 975-77. This finding was based on the Court's conclusions (1) that plaintiffs in these actions were protected by the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. § 901-950 (1982), and had a right of action under section 5(b) of that Act, 33 U.S.C. § 905(b), to recover damages from the United States in its capacity as a vessel owner for injury caused by its negligence; and (2) a defendant can bring a third-party action against the United States as vessel owner for indemnification and contribution based upon the United States' breach of duties owed to the plaintiffs. See id. In Drake, the First Circuit dismissed the defendant asbestos manufacturer's vessel owner action against BIW, holding that section 5(b) of the LHWCA is limited to maritime torts and that admiralty law does not apply to asbestos injuries sustained by shipyard workers. See 772 F.2d at 1011-19. The United States here contends that Drake mandates dismissal of the analogous vessel owner count (Count VI) asserted against the United States in Model Third-Party Complaint A. Defendants argue that Drake is distinguishable. Alternatively, defendants assert liability of the United States for violation of duties of care owed plaintiffs under Maine law.[1] The United States responds *916 that any such claim would be barred by the discretionary function exception to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2680(a) (1982).
The parties have comprehensively briefed and argued the issues thus presented, and pursuant to the Court's request they have submitted voluminous supplementary materials addressing the applicability of the discretionary function exception to the FTCA. Counsel have agreed that these materials constitute the relevant record.
The Court will first consider defendants' contention that, despite Drake, the United States may be liable for contribution or indemnity as the owner of naval vessels at BIW under section 5(b) of the LHWCA. The Court will then address defendants' argument that the United States may be liable for contribution or indemnity under various provisions of Maine tort law.
I.
LHWCA § 905(b) Vessel Owner Theory of Liability
In dismissing the defendant asbestos manufacturer's vessel owner action against BIW in Drake, the First Circuit concluded that only maritime torts are cognizable under section 5(b) of the LHWCA. See 772 F.2d at 1013-14. Because the defendant manufacturer's third-party action against BIW was predicated solely on BIW's alleged breach of duty as vessel owner pro hac vice to employee Drake, the Court stated that "the proper question [was] whether plaintiff Drake could have maintained a § 905(b) action against BIW for his injuries." Id. at 1014. Accordingly, the Court looked to whether Drake's injury "would be cognizable in admiralty, or have admiralty law applied to it." Id. Applying the two-prong test of Executive Jet Aviation, Inc. v. Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972), as well as its previous decision in Austin v. Unarco Industries, Inc., 705 F.2d at 8-14, and the decisions of five other circuit courts, the First Circuit held that while the situs test was satisfied because the alleged wrong occurred on navigable waters, the nexus test was not, because the wrong did not bear a significant relationship to traditional maritime activity. See 772 F.2d at 1014-19. Noting that the "universal conclusion is that admiralty law does not apply to these torts," id. at 1016, the First Circuit therefore concluded that "neither plaintiff nor defendants can bring a § 905(b) negligence action against BIW qua shipowner pro hac vice." Id.[2] In All Maine, decided shortly after Drake, the First Circuit reaffirmed its decision in Drake, and held that the defendant manufacturers' section 905(b) third-party vessel owner claim against the United States in Model Third-Party Complaint *917 B, involving asbestos claims arising out of work at the Portsmouth Naval Shipyard, must be dismissed for failure to state a claim on which relief can be granted, because section 905(b) "countenances only maritime torts." 772 F.2d at 1029.
In the present cases, defendants acknowledge the holding of Drake and All Maine that liability under section 5(b) of the LHWCA is limited to maritime torts. They contend that the vessel owner claims against the United States at Bath differ from the parallel claims against BIW at issue in Drake and the claims against the United States at PNS considered in All Maine. They suggest that the former claims are maritime. The Court must disagree.
In the instant cases, there is no dispute that plaintiffs' injuries occurred, at least in part, on United States naval vessels in the Kennebec River, a navigable waterway, and thus satisfied the situs requirement of Executive Jet. See Drake, 772 F.2d at 1015. But plaintiffs' injuries do not satisfy Executive Jet's nexus requirement. On this issue, the vessel owner claims asserted in these cases are virtually indistinguishable from the claims found not to be maritime in Drake and All Maine.
In Drake and All Maine, the First Circuit adopted the four-part nexus test established in Harville v. Johns-Manville Products Corp., 731 F.2d 775 (11th Cir.1984). Under the Harville approach, in determining whether an injury bears a significant relationship to maritime activities, the criteria to be considered are the functions and roles of the parties, the type of vehicles and instrumentalities involved, the causation and type of injury, and traditional concepts of the role of admiralty law. See id. at 783-84. The injuries here are in all pertinent respects the same as the injuries in Drake and All Maine that the First Circuit found to lack a sufficient relationship to traditional maritime activity to support the application of maritime law. See Drake, 772 F.2d at 1016; All Maine, 772 F.2d at 1029-30, 1031-32.
Defendants seek to distinguish Drake and All Maine on the ground that in those cases the vessel ownersBIW and the United Statesalso owned the shipyards where the injuries occurred, whereas here the United States is a vessel owner but does not own the shipyard. Defendants assert that this difference is critical to the application of the fourth Harville factor, "traditional concepts of the role of admiralty law." Where a vessel owner is also a shipyard owner, the argument continues, that vessel owner will likely choose to have its vessel repaired in its own shipyard; that choice is unlikely to be influenced by the consideration that different States in which different shipyards are located might impose less (or more) stringent duties on vessel owners who put in to those shipyards. Vessel owners who do not also own shipyards, on the other hand, will be influenced in their choice of shipyards by these variations in local tort law, and defendants forecast that this law-shopping will inhibit maritime commerce. Because the protection of such commerce is one of admiralty law's traditional roles, defendants conclude, the tort law applicable to vessels in port for repairs must be made uniform across all ports, and this can best be achieved by holding injuries on board such vessels to be "maritime torts" cognizable under LHWCA section 905(b).
This argument is clever but insubstantial. Defendants offer no examples of the vagaries of local law that they claim would influence a vessel owner's choice of a shipyard for repairs. Nor do they offer any evidence that vessel owners are in fact influenced by such considerations. Traditional concepts of the role of admiralty law are no more implicated here than in Drake and All Maine; in fact, the First Circuit in All Maine rejected the very argument defendants advance here. See 772 F.2d at 1031-32. Finally, as the First Circuit observed in All Maine:
"[T]he risk encountered by plaintiff's decedent is not a risk arising from the loading or operation of a vessel, against which those on the vessel are typically protected by the vessel owner. It is, *918 rather, the same risk as that encountered by a number of workers on a shortside [sic] construction project.
"Whatever anomalous results may follow from distinguishing between harbor workers according to the maritime nature of the hazards they encounter are at least offset, if not outweighed, by the anomalous results of treating construction workers injured by asbestos poisoning differently depending on whether they were installing asbestos in a ship or in an office building overlooking the harbor. The state has an interest in providing uniform treatment to these two like workers."
772 F.2d at 1030, quoting from Austin v. Unarco, 705 F.2d at 13 (emphasis added in All Maine).
That portion of Count VI of Model Third-Party Complaint A which asserts a contribution and indemnification claim against the United States based upon section 5(b) of the LHWCA must be dismissed for failure to state a claim upon which relief can be granted.
II.
Land-Based Theories of Liability
Count VI asserts that the United States is liable for contribution and indemnity because of alleged negligence of the government on three separate "land-based" theories, the source of these alleged duties being various provisions of Maine tort law. The first theory characterizes the naval vessels on which plaintiffs worked as "premises" and alleges that the United States as owner of these premises breached its duty to warn BIW employees of the existence of asbestos hazards hidden on these premises. See, e.g., Poulin v. Colby College, 402 A.2d 846, 851 (Me.1979) (holding that landowner owes duty of reasonable care in all circumstances to all persons lawfully on the land). The second theory asserts that the United States, as the employer of an independent contractor (BIW) performing peculiarly hazardous work (involving asbestos), breached its duty to exercise due care to ensure that the contractor took appropriate precautions to prevent harm to its employees from this peculiar hazard. See Hersum v. Kennebec Water District, 151 Me. 256, 268, 117 A.2d 334 (1955); Lindsay v. McCaslin, 123 Me. 197, 200, 122 A. 412 (1923); Restatement (Second) of Torts § 413 (1964).[3] The third theory asserts that the United States breached its duty of care in exercising the control over work safety at BIW that the United States allegedly retained; more specifically, defendants assert that the United States had a duty to exercise its authority to stop work when it learned that its contractor BIW was exposing BIW employees to unreasonable risks of asbestos-related injury. See Restatement (Second) of Torts § 414 (1964); cf. Thorne v. United States, 479 F.2d 804 (applying California law on employer's duty to stop work; holding United States liable under FTCA).
While not conceding that these landbased theories set forth valid claims under Maine law, the United States asserts that in any event they are barred by the discretionary function exception to the FTCA and therefore must be dismissed for lack of subject matter jurisdiction. On this record, the Court cannot agree.
The FTCA subjects the United States to liability
for money damages ... for ... personal injury or death caused by the negligent or wrongful act or omission of any employee *919 of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
28 U.S.C. § 1346(b) (1982). The Act further provides that the United States shall be liable in tort "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674 (1982).
The discretionary function exception to the government's liability under the FTCA is set forth at 28 U.S.C. § 2680(a), which provides in relevant part that the provisions of the FTCA shall not apply to
(a) [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 federal agency or an employee of the Government, whether or not the discretion involved be abused.
In the seminal case of Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), the Supreme Court delineated the broad contours of the discretionary function exception. In that case, the Supreme Court stated that
the "discretionary function or duty" that cannot form a basis for suit under the Tort Claims Act includes more than the initiation of programs and activities. It also includes determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion. It necessarily follows that acts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable.
346 U.S. at 35-36, 73 S.Ct. at 968 (footnotes omitted).
In the recent case of United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984), the Supreme Court reaffirmed its earlier interpretation of § 2680(a), although it acknowledged that its interpretation of the discretionary function exception "admittedly has not followed a straight line." Id. at 811-12, 104 S.Ct. at 2764. The Court identified two basic principles for interpreting the discretionary function exception that it found implicit in Dalehite:
First, it is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case. As the Court pointed out in Dalehite, the exception covers "[n]ot only agencies of government ... but all employees exercising discretion." 346 U.S., at 33 [73 S.Ct. at 966]. Thus, the basic inquiry concerning the application of the discretionary function exception is whether the challenged acts of a Government employee whatever his or her rankare of the nature and quality that Congress intended to shield from tort liability.
Second, whatever else the discretionary function exception may include, it plainly was intended to encompass the discretionary acts of the Government acting in its role as a regulator of the conduct of private individuals.... Congress wished to prevent judicial "second-guessing" of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.
Id. at 813-14, 104 S.Ct. at 2765 (emphasis supplied) (footnote omitted).
In Shuman v. United States, 765 F.2d 283 (1st Cir.1985), the First Circuit applied the principles established by the Supreme Court in Dalehite and Varig Airlines to hold that the discretionary function exception barred liability of the United States for failure to warn the employees of a private shipyard of the dangers of working with asbestos. In that case, Shuman was employed in 1942, and again from 1951-53, at the Fore River Shipyard, a private shipyard in Quincy, Massachusetts. He died as a result of mesothelioma resulting from his exposure to asbestos dust during his employment at the shipyard. His widow sued *920 the United States under the FTCA, asserting that the United States breached a duty imposed by section 35(e) of the Walsh-Healey Act, 41 U.S.C. § 35(e) (1982), to warn the deceased of the dangers of working with asbestos. After a bench trial, the district court in an unpublished opinion held the United States liable, finding the source of duty not in the Walsh-Healey Act but instead in section 5(b) of the LHWCA and the status of the United States as owner of the Navy vessels on which the deceased had worked. See Shuman, 765 F.2d at 284, 290-91.
The First Circuit reversed, holding that the discretionary function exception to the FTCA barred liability of the United States both under the plaintiff's Walsh-Healey Act theory and the district court's LHWCA section 905(b) theory.[4] As to the plaintiff's theory, the court held that Congress had structured a great deal of administrative discretion into the Walsh-Healey Act. Both the "government's omission of a policy requiring the Federal Department of Labor, or others acting under its authority, to warn the endangered workers themselves of a work hazard" and "the omission of a government directive authorizing the federal government `to make [the workplace] safe'" were held to be discretionary acts protected by the discretionary function exception to the FTCA. Id. at 290 (bracketed material in original). With respect to the district court's section 905(b) theory, the First Circuit held that "[t]he official policy at this time [when Shuman first worked at the shipyard in 1942] was not to regulate `the conduct of private individuals' ... regarding the use of asbestos or other hazardous substances." Id. at 292 (quoting Varig Airlines, 467 U.S. at 814, 104 S.Ct. at 2765). Continuing, the First Circuit stated:
[T]he omission of regulations and an enforcement apparatus designed to minimize occupational hazards in the shipyards was a matter of administrative, and perhaps even legislative, discretion protected by the discretionary function exception. Similarly, the Navy decision to provide technical inspectors on site to test for quality control and adherence to government plans and specifications, and not to provide inspectors with authority for promoting or ensuring the safety and health of the government contractor's employees, was a matter of protected discretion.
Id. (footnote omitted).
Dalehite, Varig Airlines, and Shuman teach that government acts and omissions are discretionary when the government employee involved either makes or carries out in a prescribed manner a decision grounded in social, economic, or political policy. These cases further indicate that government acts and omissions will normally be characterized as discretionary when the government is acting in its role as a regulator of the conduct of private individuals, and that a government decision about whether to impose safety requirements on private individuals, whether through regulatory programs or contractual provisions, will usually be characterized as discretionary. These cases also establish that government decisions about whether to conduct inspections to monitor compliance with these requirements will usually be characterized as discretionary. See also Feyers v. United States, 749 F.2d 1222, 1227 (6th Cir.1984), cert. denied, 471 U.S. 1125, 105 S.Ct. 2655, 86 L.Ed.2d 272 (1985) (holding that government decision to conduct only spot checks of contractor's safety programs was discretionary).
Although the Supreme Court and the First Circuit have not addressed the question, post-Varig Airlines cases from other circuits appear to make the applicability of the discretionary function exception turn on whether "the regulatory inspection and enforcement activities of an agency require its employees to exercise discretion in performing their duties." Hylin v. United *921 States, 755 F.2d 551, 553 (7th Cir.1985). Compare Merklin v. United States, 788 F.2d 172, 173-74 (3d Cir.1986) (holding that Atomic Energy Commission's apparently unbounded discretion in conducting plant inspections barred liability under FTCA); Hylin, 755 F.2d at 553 (holding that where mine safety inspector who discovered violation could choose between two types of orders to mine owner and two means of abatement, inspector's acts were within discretionary function exception); and Cunningham v. United States, 786 F.2d 1445, 1447 (9th Cir.1986) (holding that "acts of OSHA inspectors in executing agency directives" were within discretionary function exception) with Collins v. United States, 783 F.2d 1225, 1230-31 (5th Cir. 1986) (holding that mine inspectors' disobedience of a "flat command" in regulations, requiring them to close a mine in light of measurements they had made, was not discretionary) and McMichael v. United States, 751 F.2d 303, 307 (8th Cir.1985) (holding that acts of Army inspectors of private munitions plant were not discretionary where inspectors were to follow a fifty-one step procedures review checklist for safety compliance and were not called upon to make discretionary regulatory judgments). See also Merklin, 788 F.2d at 175 (reading McMichael as finding government inspectors' acts nondiscretionary where inspectors were obligated to perform "precise and highly technical inspections involving no policy judgment"); cf. Feyers, 749 F.2d at 1227 n. 7 ("[T]he discretionary function exception does not apply where mandatory guidelines or regulations are violated" by government employees).
With these principles in mind, the Court now proceeds to consider whether the acts and omissions here complained of may be characterized as discretionary. A review of the statutes, regulations, contracts and practices applicable at BIW during the period of time that plaintiffs in these cases were employed at BIW (from approximately 1940 to approximately 1980) discloses that for the most part the United States made discretionary decisions to place primary responsibility for maintaining a safe workplace on its contractor BIW. Nevertheless, issues of material fact exist as to the discretion enjoyed by Navy personnel in implementing certain directives regarding asbestos precautions and in performing safety inspections. Summary judgment is therefore inappropriate.
The Court will first review the various decisions to impose on BIW, whether through regulatory or contractual means, obligations relating to workplace safety and asbestos hazards. Related to these are decisions granting government personnel varying degrees of authority and responsibility to enforce such obligations. Second, the Court will review decisions relating to the actual or attempted exercise of that authority by government personnel at BIW. Within each of these categories, the Court will discuss the relevant decisions in chronological order and analyze the applicability of the discretionary function exception to those decisions.[5]
A.
Defendants point to five sets of safety directives which they claim charged government personnel at BIW with nondiscretionary duties.
First, throughout the period relevant to this litigation, the Navy decided to invoke in its contracts with BIW the provisions of the Walsh-Healey Act, 41 U.S.C. §§ 35-45 (1982). These provisions bound BIW not to perform the contract "under working conditions which are unsanitary or hazardous or dangerous to the health and safety of employees engaged in the performance of said contract." 41 U.S.C. § 35(e) (1982). Regulations issued thereunder by the Secretary of Labor required contractors to reduce or control harmful atmospheric contaminants such as dusts at their source, to isolate these sources from other work areas, *922 and to provide government-approved respirators to workers unavoidably exposed to these contaminants. See Wage and Hour and Public Contracts Divisions, U.S. Department of Labor, Basic Safety and Health Requirements for Establishments Subject to Walsh-Healey Public Contracts Act 8-9 (1943). Versions of these regulations issued in 1951 and thereafter included specific asbestos exposure standards. But, because in enforcing the Walsh-Healey Act the Secretary of Labor was given "a great deal of administrative discretion," the Shuman court concluded that the discretionary function exception barred claims alleging that the United States breached duties under that Act. See 765 F.2d at 290. This Court is bound by that determination.
Second, from early 1943 to October 1945, the Navy decided to make applicable to BIW certain "Minimum Requirements for Safety and Health in Contract Shipyards," which dealt in part with the hazards of asbestos dust. Officials from the office of the Navy's Supervisor of Shipbuilding (SUPSHIP) were charged with enforcing these requirements. But the First Circuit already has concluded in Shuman that the Minimum Requirements program was "basically an advisory and educative program," 765 F.2d at 293, in which "the level of enforcement responsibility vested in SUPSHIP falls below the level necessary to ground any claim of operational negligence by SUPSHIP." Id. at 292 n. 7. Under Shuman, therefore, claims against the United States based on the imposition of or alleged failure to enforce these Minimum Requirements are barred by the discretionary function exception.
Third, after 1958 the Navy decided to invoke in its contracts with BIW the newly-amended health and safety provisions of LHWCA section 41, 33 U.S.C. § 941 (1982). See Shuman, 765 F.2d at 287-88 (discussing 1958 amendments to LHWCA). Under the authority of these amendments, the Secretary of Labor promulgated detailed safety and health regulations for ship repairing, including requirements that employees should be provided with respirators providing defined levels of protection against inhalation of asbestos fibers. See 25 Fed.Reg. 4027 (Mar. 27, 1964); 32 Fed.Reg. 14050 (Oct. 10, 1967). But a reading of LHWCA section 941 discloses that Congress delegated to the Secretary of Labor a degree of enforcement discretion comparable to that enjoyed by the Secretary under the Walsh-Healey Act. Under Shuman, therefore, claims against the United States based on the imposition of or alleged failure to enforce safety requirements under the LHWCA are barred by the discretionary function exception.
Fourth, the Navy in its 1969 Ship Repair Contracting Manual, which was developed for the guidance of SUPSHIP personnel and not incorporated into contracts with BIW, included the following paragraph:
11-3.1.3 Safety
(a) The contractor is responsible for observing safe practices on all work under his cognizance. Clause 24 of the [Master Ship Repair] contract directs the contractor's attention to his responsibility for complying with the Department of Labor Safety and Health Regulations for Ship Repairing. The ship, in turn, is responsible for observing safe practices in all of its actions. For example, ship's ladders and passages should be kept free of material, lines, and debris to allow free and unobstructed passage. Temporary service and welding lines should be triced up. Companionways and compartments should be properly lighted for easy access and safety. Both the ship's force and the contractor are responsible for reporting any unsafe conditions to the senior SUPSHIP surveyor.[6]
*923 This manual did not charge government personnel with any additional duties to ensure that BIW workers were protected from asbestos. The contractor was still responsible for compliance with Department of Labor regulations, including those addressed specifically to asbestos hazards. The examples given made clear that precautions against asbestos encountered during so-called "rip-outs" of existing equipment, which were performed by BIW workers, would fall into the category of "safe practices on all work under [the contractor's] cognizance" rather than "safe practices in all of [the ship's] actions." Moreover, although the ship's force was to report unsafe conditions to the senior SUPSHIP surveyor, this latter individual was not charged with specific duties to report to the contractor or otherwise to remedy any conditions so reported. Paragraph 11-3.3 of the same manual stated that inspectors from the ship's force should deal not directly with the contractor but only with the SUPSHIP surveyor, who was to "take appropriate action" if he or she "consider[ed] the performance of work on the specific work item unsatisfactory." In addition, Paragraph 12-7(b) provided that "[i]n general, the SUPSHIP surveyor should not be concerned with unsafe practices on the part of the contractor which do not have a direct bearing on the safety of Government personnel or property" because this might "be construed by the contractor as SUPSHIP interference with the normal workings of the shipyard." Whether or not any members of the ship's force fulfilled their duty under Paragraph 11-3.1.3 by reporting unsafe conditions to the SUPSHIP surveyor, therefore, the SUPSHIP surveyor was vested with sufficient discretion to bring within the discretionary function exception his or her actions with respect to any unsafe conditions so reported.[7]
Fifth, after 1970 the Navy decided to invoke in its contracts with BIW the requirements of the newly-enacted Occupational Safety and Health Act (OSHA), 29 U.S.C. §§ 651-678 (1982). Under the authority of OSHA, the Secretary of Labor promulgated detailed regulations governing exposure to asbestos dust. See 36 Fed. Reg. 23207-08 (Dec. 7, 1971); 37 Fed.Reg. 11320-22 (June 7, 1972); 39 Fed.Reg. 23502 (June 27, 1974); 41 Fed.Reg. 11505 (Mar. 19, 1976); see also 29 CFR § 1910.1001 (1986) (codifying current OSHA asbestos standard). As with the Walsh-Healey Act and LHWCA standards, however, claims against the United States based on the imposition of or alleged failure to enforce OSHA safety requirements are barred by the discretionary function exception. See, e.g. Cunningham v. United States, 786 F.2d at 1447 (holding that the acts of OSHA inspectors in executing agency directives are protected by the discretionary function exception); Feyers v. United States, 749 F.2d at 1224 n. 2, 1226-27 (holding that, where government contractor agreed to comply with OSHA standards, discretionary function exception protected United States' decisions to delegate safety *924 responsibility to contractor, to conduct only spot checks of contractor's compliance, and not to institute a safety training program for contractor's employees).
B.
Defendants point to three items of evidence suggesting that the United States undertook to enforce compliance with asbestos safety standards at BIW.
First, they rely on a "Report on Investigation of Asbestosis from Amosite Pipe Covering at Bath Iron Works," issued in 1944 by the Safety and Industrial Health Program of the joint U.S. Navy/U.S. Maritime Commission War Shipping Administration (hereinafter "1944 Report"). This five-page report included a four-element "Suggested Safety Program" to monitor and protect the health of BIW workers exposed to asbestos. Though the record is unclear, the 1944 Report presumably was issued to SUPSHIP officials at BIW. Defendants acknowledge that the 1944 Report was issued pursuant to the Minimum Requirements program discussed in Shuman. They further acknowledge the Shuman court's determination that the program was "basically an advisory and educative program," in which the United States was under no duty actually to conduct inspections. Once the United States did conduct such an inspection at BIW, however, defendants contend that SUPSHIP officials at BIW were under a nondiscretionary, "operational" duty to insist upon implementation of the resulting recommendations. Defendants emphasize language in a letter from the Secretary of the Navy instructing SUPSHIP officials that they "will receive copies of reports of [inspections of private shipyards] and shall take action necessary to require management to correct unsatisfactory conditions." (emphasis supplied).[8]
In Shuman, the First Circuit noted that "shortly after the promulgation of the Minimum Requirements, several compliance surveys of the [shipyard] were completed. Suggestions for remediation were thereafter made to the Shipyard management." 765 F.2d at 287. Although these suggestions apparently did not concern asbestos, see id., the important point is that the First Circuit considered the fact that actual inspections took place under the Minimum Requirements program. Nevertheless, that court concluded that "the level of enforcement responsibility vested in SUPSHIP falls below the level necessary to ground any claim of operational negligence by SUPSHIP." Id. at 292 n. 7. Thus, under Shuman, defendants' claim that SUPSHIP officials at BIW were "operationally negligent" in not insisting on the implementation of the 1944 recommendations must fail.
Second, defendants rely on NAVSHIPSINST 5100.26, an Instruction issued by the Naval Ship Systems Command to SUPSHIP personnel on February 9, 1971. The Instruction's purpose was "[t]o prescribe appropriate safety precautions during the use of asbestos." Under the heading "Action," the Instruction stated:
The following safety precautions will be observed by all supervisors and workers engaged in the fabrication, installation and/or removal (rip-out) of asbestos-containing insulation/material. The provisions of this instruction will be effective as of this date. The provisions of this instruction are considered as minimum health and safety requirements; more stringent restrictions may be applied by local Commanders.
The Instruction then outlined six pages of detailed safety procedures, including requirements that asbestos workers be given "indoctrination talks" at least twice annually on proper precautions against asbestos exposure and that adequate warning signs (the texts of which were suggested) be posted at all entrances to areas in which work involving asbestos was in progress. SUPSHIP personnel at BIW forwarded a *925 copy of the Instruction to BIW with the comment "for information."
This Instruction appears to represent a departure from SUPSHIP's role in private shipyard worker safety as that role is described in the various manuals discussed above. In particular, the Instruction has a very different tone than the 1969 Ship Repair Contracting Manual's Paragraph 12-7(b), which states that "[i]n general, the SUPSHIP surveyor should not be concerned with unsafe practices on the part of the contractor which do not have a direct bearing on the safety of Government personnel or property" because this might "be construed by the contractor as SUPSHIP interference with the normal workings of the shipyard."
In view of this Court's reading of Dalehite, Varig Airlines, Shuman, and other post-Varig Airlines cases, the Court is unable to conclude on this record that the acts and omissions of SUPSHIP personnel at BIW in enforcing NAVSHIPSINST 5100.26 may be characterized as discretionary. The Instruction's mandatory language and its immediate effective date suggest that SUPSHIP personnel were not to balance policy considerations in deciding whether and when to implement the Instruction. SUPSHIP personnel were not cautioned to temper their enforcement efforts in order to avoid "interference with the normal workings of the shipyard." On the contrary, the Instruction suggests that SUPSHIP personnel may have been under an operational duty immediately to implement its provisions. The fact that local Commanders were explicitly given discretion to implement more stringent requirements further suggests that the duty to implement the minimum requirements of the Instruction was not discretionary. Evidence produced at trial may ultimately lead to the opposite conclusion, but an issue of material fact exists and summary judgment is therefore inappropriate.
Third, defendants rely on a statement by BIW Vice President and Contract Administrator William F. Mussenden that "Navy inspectors make sure that we ... follow precautionary measures in the area of asbestos. I know that." Although Mussenden, whose employment at BIW extends back to 1964, could not remember how far back this had been the case, apparently the SUPSHIP office at BIW acquired a fulltime safety officer in 1977. Defendants also point to a statement by Captain Ronald B. Berklite, currently Director of SUPSHIP's Management Division, that such a safety officer would be "primarily concerned with the safety of government personnel and property [and] monitoring contractor performance of contract terms regarding safety and health." There is no other evidence in the record as to the performance, nature, or results of actual inspections by Navy personnel. Issues of material fact exist as to whether, when and in what manner Navy inspectors sought to require BIW to implement asbestos safety precautions. Summary judgment is therefore inappropriate.
III.
Order
In accordance with the foregoing, it is
ORDERED as follows:
(1) That the motion of the United States to dismiss, or for summary judgment on, that portion of Count VI of Model Third-Party Complaint A which asserts a contribution and indemnification claim against the United States based upon section 5(b) of the LHWCA is GRANTED;
(2) That the motion of the United States to dismiss, or for summary judgment on, that portion of Count VI of Model Third-Party Complaint A which asserts a contribution and indemnification claim against the United States based upon the provisions of Maine tort law is DENIED.
NOTES
[1] Count VI contains two distinct theories of recovery. First, defendants seek contribution or indemnity from the United States as the owner of the naval vessels on which the plaintiffs worked; the source of the asserted duty is section 5(b) of the LHWCA. Second, defendants seek contribution or indemnity from the United States because of alleged negligence of the government on various "land-based" theories; the source of these alleged duties is Maine tort law. In All Maine, this Court did not reach defendants' land-based theories because the Court found that defendants had stated a viable section 905(b) vessel owner claim against the government and the liability of a vessel owner under section 905(b) was "probably broader than that ... under state law." See 581 F.Supp. at 975 n. 12.
[2] Although not necessary to its decision, the First Circuit in Drake expressed doubt "whether a contribution action premised solely upon § 905(b) can proceed without having as its predicate a § 905(b) primary action properly brought by one of the parties authorized by the statute." 772 F.2d at 1011. The court stated:
Especially in a situation such as this, where the primary action is based on distinctly non-maritime rights and dutiesduties owed by any manufacturer of a product later determined to be defective and which bear no significant relationship to maritime commerce it seems that defendants cannot use § 905(b) as a source of a right to contribution from a shipowner or owner pro hac vice. Our study of the decisional law failed to uncover any cases where § 905(b) was allowed to be asserted as the basis for liability in a third-party action where it was not sued upon in a primary action. We note, however, that the parties did not raise or brief this question. We therefore shall bracket this question and assume arguendo that defendants are not barred from bringing a contribution action based on the plaintiff's omission of a § 905(b) claim in her action.
Id. at 1011-12. In Drake, as in the present cases, the plaintiff did not bring a section 905(b) action against BIW. This Court also will assume arguendo that defendants are not barred from bringing their third-party action by plaintiffs' failure to assert a section 905(b) claim.
[3] Although defendants cite in their memoranda Restatement (Second) of Torts § 416 (1964) (stating a rule of strict liability for the employer of an independent contractor performing peculiarly hazardous work, where the contractor fails to exercise reasonable care to take appropriate precautions), the memoranda make clear that they assert liability based on the United States' own negligence in failing to exercise due care to ensure that its independent contractor BIW took appropriate precautions. See id. § 413; Thorne v. United States, 479 F.2d 804 (9th Cir.1973); cf. McMichael v. United States, 751 F.2d 303, 310 (8th Cir.1985). The United States, of course, may not be held liable under the FTCA on a theory of strict or absolute liability, see Laird v. Nelms, 406 U.S. 797, 92 S.Ct. 1899, 32 L.Ed.2d 499 (1972), or for the acts or omissions of independent contractors. See 28 U.S.C. §§ 1346(b), 2671 (1982).
[4] Both the Shuman district court's finding of liability and the First Circuit's reversal of that finding occurred prior to the First Circuit decisions in Drake and All Maine, which found injuries such as that at issue in Shuman not to be cognizable under LHWCA section 905(b).
[5] The Court sees no need to discuss the government's alleged retention of control over matters other than the safety of BIW employees.
[6] Earlier manuals addressed safety only tangentially. The 1960 Shipbuilding and Boatbuilding Manual for Supervisors of Shipbuilding and Contract and Technical Personnel provided that the SUPSHIPS Inspection Department was to ensure compliance with "contract specifications" but referred specifically to quality control and scheduling rather than safety. The 1965 Shipbuilding and Boat Building Contract Manual made the Personnel Division of the Administrative Department of the central SUPSHIP office responsible for "[p]roviding contractors with any useful information which may promote industrial health and safety." Defendants do not argue that these provisions represent any departure from previous decisions by the United States as to the extent to which it would involve itself in asbestos precautions at BIW.
[7] Defendants press no argument based on provisions included in later SUPSHIP manuals. These include (1) a 1972 Quality Assurance Supplement provision which instructed SUPSHIP to monitor the contractor's safety program and report the use of hazardous or dangerous materials, (2) a 1974 Ship Repair Manual provision instructing SUPSHIP to "request OSHA Department of Labor compliance officers to conduct reviews as necessary," (3) another 1974 provision instructing SUPSHIP immediately to notify the contractor of OSHA violations that endangered government personnel or property, and (4) a 1978 Ship Repair Manual provision amending Paragraph 11-3.1.3(a) to state that although ultimate responsibility for employee safety remained with the contractor, SUPSHIP was "responsible for monitoring the contractor's safety and health program including the investigation of complaints of shipboard occupational safety and health matters brought to its attention." None of these provisions alters the basic decisions described in the text as to the extent to which the United States would involve itself in asbestos precautions at BIW.
[8] This letter from the Secretary of the Navy apparently was part of the record before the Shuman court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2306720/ | 651 F. Supp. 373 (1987)
Rocco A. LA MANNA, Plaintiff,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.
No. 83-CV-1315.
United States District Court, N.D. New York.
January 13, 1987.
*374 Joseph M. Broderick, Buffalo, N.Y., for plaintiff.
Frederick J. Scullin, Jr., U.S. Atty., Syracuse, N.Y., for defendant; Nancy S. Jones, Asst. U.S. Atty., of counsel.
MEMORANDUM-DECISION AND ORDER
McCURN, District Judge.
Pending before the court in the above-captioned case is a motion by Joseph Broderick, attorney for plaintiff Rocco LaManna, for attorney's fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d). On September 15, 1986, while the action was pending before the court, the plaintiff and the defendant, the Secretary of the Department of Health and Human Services, entered into a Stipulation to Remand which stated, inter alia, that:
It is further stipulated and agreed that this action be and hereby is remanded to the Secretary of Health and Human Services pursuant to section 2 of the Social Security Disability Benefits Reform Act of 1984 for review in accordance with the provisions of the Social Security Act as amended by section 2 of the Social Security Disability Benefits Reform Act of 1984.
On September 26, 1986, after the remand, the defendant ruled that the plaintiff was entitled to receive the benefits that he was seeking. Thus having achieved the desired result, the plaintiff's attorney moved for attorney's fees on November 3, 1986.
The defendant asserts that this court is without jurisdiction to award attorney's fees. 28 U.S.C. § 2412(d)(1)(B) provides:
(B) A party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, submit to the court an application for fees and other expenses which shows that the party is a prevailing party and is eligible to receive an award under this subsection, and the amount sought, including an itemized statement from any attorney or expert witness representing or appearing *375 in behalf of the party stating the actual time expended and the rate at which fees and other expenses are computed. The party shall also allege that the position of the United States was not substantially justified. Whether or not the position of the United States was substantially justified shall be determined on the basis of the record (including the record with respect to the action or failure to act by the agency upon which the civil action is based) which is made in the civil action for which fees and other expenses are sought.
It is the position of the defendant that the parties settled the case when they stipulated to a remand, and it was the date of the remand, September 15, 1986, that triggered the running of the thirty-day period set forth in the statute. Since the fees application was not filed until November 3, 1986, the defendant contends that the application is time-barred and the court has no jurisdiction to award fees.
While the court is well aware that the thirty-day period during which an attorney's fees application must be filed is jurisdictional; Allen v. Secretary of Health and Human Services, 781 F.2d 92 (6th Cir.1986); it disagrees with the defendant that the thirty-day period in the instant case began to run on the date that the action was remanded.
A number of courts have followed the lead of the Second Circuit in holding that a remand is not a final judgment under the statute. See McGill v. Secretary of Health and Human Services, 712 F.2d 28 (2d Cir.1983); Cook v. Heckler, 751 F.2d 240 (8th Cir.1984); Brown v. Secretary of Health and Human Services, 747 F.2d 878, 883 (3d Cir.1984); Steffens v. Heckler, 602 F. Supp. 754 (N.D.Ill.1985); Vascera v. Heckler, 624 F. Supp. 1198, 1204-05 (D.R.I. 1986). Generally, a court orders a case remanded so that new evidence can be considered, and such a remand only places a plaintiff one step closer toward achieving the relief sought, the award of benefits. At the time of the remand, a plaintiff is not yet a prevailing party.
The defendant contends, however, that there are two types of remands that differ from that addressed in McGill, and that such remands do render a plaintiff a prevailing party so as to trigger the running of the thirty-day period. The first type of remand, which the defendant asserts occurred in this case, is when the Secretary, as opposed to the court, is responsible for the remand. The defendant's contention is that when he seeks a remand, that is tantamount to the plaintiff being awarded the benefits sought, so that a plaintiff is a prevailing party at the time of the remand.
The stipulation remanding the action into which the parties entered did not dispose of the action. The parties merely agreed that the case should be sent back to the Secretary for further review. At the time of the remand, the plaintiff did not know whether he would become a prevailing party. It was not until September 26, 1986, when an administrative decision was rendered awarding the plaintiff his benefits, that he achieved the result that he was seeking.
The second type of remand that, according to the defendant, differs from the type in McGill is when a court holds that a plaintiff is entitled to receive benefits and only remands the action to the Secretary for computation of those benefits. Under such circumstances, a plaintiff has basically achieved his or her desired result at the time of the remand.
However, a fees application cannot be filed until there has been a final judgment, regardless of whether a remand, for all intents and purposes, resolves the action. A final judgment is defined in 28 U.S.C. § 2412(d)(1)(G) as "a judgment that is final and not appealable...." The court now holds that, in order for there to be a final judgment, the court must enter an order dismissing the case, and such an order must be entered even if a plaintiff has been awarded benefits at the administrative level after a remand. See Tripodi v. Heckler, 100 F.R.D. 736, 739 (E.D.N.Y. 1984); Taylor v. Heckler, 778 F.2d 674, 677-78 (11th Cir.1985); Guthrie v. *376 Schweiker, 718 F.2d 104, 106 (4th Cir.1983). Either party may bring about the entry of an order of dismissal by making a motion with the court after the conclusion of the administrative proceedings.
However, the court's examination of the applicable case law here reveals an area of uncertainty and possible confusion to the bar in matters relating to applications for attorney's fees under the Equal Access to Justice Act. The uncertainty revolves around whether the thirty-day period during which the fees application must be filed commences upon the date of entry of the district court's order, as held in Tripodi, Taylor, and Guthrie, or whether the district court must take into account the possibility of an appeal of its order, and if so, the effect of an appeal on the commencement of the running of the thirty-day period. See McDonald v. Schweiker, 726 F.2d 311, 315 (7th Cir.1983); Massachusetts Union of Public Housing Tenants v. Pierce, 755 F.2d 177, 179-80 (D.C.Cir.1985); Feldpausch v. Heckler, 763 F.2d 229, 230-33 (6th Cir.1985); Keasler v. United States, 766 F.2d 1227, 1229-31 (8th Cir. 1985). In light of the definition of a final judgment now contained in the statute, the court adheres to the latter view and adopts the holding of the Third Circuit in Taylor v. United States, 749 F.2d 171 (3d Cir.1984):
[F]ee petitions under the EAJA must be filed no later than thirty days after the expiration of the time to appeal, or after termination of the litigation by the court of last resort, or after a losing party asserts that no further appeal will be taken.
Id. at 174.
No final judgment has been entered in the case sub judice, first, because an order of dismissal has not been entered, and second, because even after the entry of such an order, it will still be appealable. The court will hold in abeyance the plaintiff's application for attorney's fees and will act on it upon receiving notice that there is a final judgment due to one of the reasons set forth in Taylor v. United States.
IT IS SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3991764/ | In Forseth v. Tacoma, ante p. 284, 178 P.2d 357, only one person involved, we held that a municipal corporation may not be estopped to question the actions of its representatives. In the case at *Page 555
bar, which involves a labor union with a large membership, we hold that the doctrine of equitable estoppel may be invoked to permit that membership to collect back pay. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4538738/ | U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39577
________________________
UNITED STATES
Appellee
v.
Nicholas A. KNARR
Airman First Class (E-3), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 3 June 2020
________________________
Military Judge: Joseph S. Imburgia.
Approved sentence: Dishonorable discharge, confinement for 1 year, for-
feiture of all pay and allowances, reduction to E-1, and a reprimand.
Sentence adjudged 16 July 2018 by GCM convened at Kadena Air Base,
Japan.
For Appellant: Major Rodrigo M. Caruço, USAF; Tami L. Mitchell, Es-
quire; David P. Sheldon, Esquire.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant
Colonel Brian C. Mason, USAF; Major Amanda L.K. Linares, USAF;
Mary Ellen Payne, Esquire.
Before J. JOHNSON, POSCH, and KEY, Appellate Military Judges.
Chief Judge J. JOHNSON delivered the opinion of the court, in which
Judge POSCH and Judge KEY joined.
________________________
PUBLISHED OPINION OF THE COURT
________________________
J. JOHNSON, Chief Judge:
A general court-martial composed of a military judge alone convicted Ap-
pellant, contrary to his pleas, of one specification of attempted sexual abuse of
United States v. Knarr, No. ACM 39577
a child and one specification of solicitation to distribute child pornography, in
violation of Articles 80 and 134, Uniform Code of Military Justice (UCMJ), 10
U.S.C. §§ 880, 934. 1,2 The military judge sentenced Appellant to a dishonorable
discharge, confinement for one year, forfeiture of all pay and allowances, re-
duction to the grade of E-1, and a reprimand. The convening authority ap-
proved the dishonorable discharge, confinement, reduction in grade, and rep-
rimand, but disapproved the adjudged forfeitures. In addition, the convening
authority deferred the adjudged and mandatory forfeitures and the reduction
in grade until action pursuant to Articles 57(a) and 58b, UCMJ, 10 U.S.C.
§§ 857(a), 858b, and waived mandatory forfeitures for the benefit of Appellant’s
dependent spouse and child until the earlier of six months or the expiration of
Appellant’s term of service pursuant to Article 58b, UCMJ, 10 U.S.C. § 858b.
Appellant raises seven issues: (1) whether the evidence is legally and fac-
tually sufficient to support his convictions; (2) whether Appellant’s statements
charged in the Specification of Charge I are protected by the First Amend-
ment; 3 (3) whether the military judge erred by permitting law enforcement
agents to testify about how individuals other than Appellant responded to per-
sonal advertisements; (4) whether the military judge erred in admitting evi-
dence that Appellant received “inappropriate” images from a minor under Mil.
R. Evid. 404(b); (5) whether the military judge erred in permitting a prosecu-
tion witness to testify as an expert in digital forensics; (6) whether the military
judge abused his discretion by granting a continuance requested by the Gov-
ernment; and (7) whether Appellant’s sentence to a dishonorable discharge is
inappropriately severe. 4 In addition, although not raised by Appellant, we con-
sider whether Appellant is entitled to relief for facially unreasonable post-trial
delay. We have carefully considered issue (6) and find it does not require fur-
ther discussion or warrant relief. See United States v. Matias, 25 M.J. 356, 361
(C.M.A. 1987). As to the remaining issues, we find no error materially prejudi-
cial to Appellant’s substantial rights, and we affirm the findings and sentence.
1 All references in this opinion to the Uniform Code of Military Justice (UCMJ), Rules
for Courts-Martial (R.C.M.), and Military Rules of Evidence are to the Manual for
Courts-Martial, United States (2016 ed.).
2The military judge made minor exceptions and substitutions to both specifications
which are not pertinent to the issues on appeal.
3 U.S. CONST. amend. I.
4Appellant personally raises issues (5), (6), and (7) pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1992).
2
United States v. Knarr, No. ACM 39577
I. BACKGROUND
Appellant was stationed and lived on Kadena Air Base (AB), Okinawa, Ja-
pan, on 8 February 2017 when he saw a personal advertisement in the “casual
encounters” section of Craigslist for the Okinawa geographic region. 5 The ad-
vertisement read, “New to island. Fresh daughter looking for a date. Mu$t be
serious and discrete. Tell me what you are looking for.” Appellant responded,
“Im looking for some discreet no strings f*cking. What about you?” Appellant
attached a photo of his bare chest and one of his exposed penis. He received a
response from “Ella”: “oh my. im a bit young, is 14 ok with u? a lot of ppl freak
out[.]”
Appellant, who was 26 years old at the time, responded by admonishing,
“If you are 14 you legally cant post to craigslist.” However, he continued to
exchange messages with “Ella,” initially through Craigslist and then through
the Kik messaging application, for approximately two and a half months. He
learned that “Ella” lived with her single mother on Kadena AB. In the early
stages, Appellant did not make sexually-oriented comments or requests to
“Ella.” He asked her to delete the photos he sent, instructed her not to “say or
do anything inappropriate” because he was “no law breaker” and reiterated it
was “[n]ot legal for anything inappropriate so keep things pg.” However, as
time passed, Appellant repeatedly turned their exchanges to sexual topics.
Among other sexually-charged messages, Appellant asked “Ella” whether and
how she masturbated; told “Ella” that he wanted to have sexual intercourse
with her, and described his fantasies about doing so; speculated about where
he would ejaculate when they engaged in sex; and persistently urged her to
send him naked photos of herself. Appellant and “Ella” each sent the other five
non-explicit photos of themselves, but “Ella” declined to send Appellant any
naked photos. Appellant never made specific plans to meet “Ella” in person.
In reality, the Craigslist advertisement had been posted by Special Agent
(SA) KP, an agent of the Naval Criminal Investigative Service (NCIS) sta-
tioned on Okinawa. The messages Appellant received from “Ella” were sent at
various times by SA KP; another NCIS agent, SA SB; and Corporal (Cpl) HF,
a female Marine who was assigned to assist NCIS with this operation. The
image used as “Ella’s” Kik avatar was a photo of Cpl HF taken when she was
15 years old. The five photos “Ella” sent Appellant in the course of their corre-
spondence were photos of Cpl HF when she was 21 years old, in civilian cloth-
ing in a mock bedroom staged for the purpose by NCIS.
5 A Naval Criminal Investigative Service agent testifying for the Government de-
scribed Craigslist as “an online classified ads platform.”
3
United States v. Knarr, No. ACM 39577
NCIS informed the Air Force Office of Special Investigations (AFOSI) of its
operation, and an AFOSI agent was able to identify Appellant by tracing his
Internet Protocol address. AFOSI agents interviewed Appellant, and he wrote
a statement, portions of which the Government introduced at his court-mar-
tial. Appellant stated he had “made serious mistakes” and “want[ed] help.” Ap-
pellant acknowledged he had met several other underage females through da-
ting applications with whom he “talked inappropriately about having sex” and
“meeting up.” He also admitted that when he was 20 or 21 years old he “dated”
a 16-year-old girl who sent him “a large number of inappropriate photos.” Ap-
pellant admitted “all of these things that I have done are wrong,” admitted he
knew “these people were too young,” and apologized for his behavior. AFOSI
agents seized Appellant’s phone and sent it to the Defense Cyber Crime Center
(DC3) for analysis. The DC3 determined, inter alia, that Appellant’s phone had
been used to email “Ella,” and that the Kik messaging application had been
deleted from the phone shortly before Appellant’s AFOSI interview.
II. DISCUSSION
A. Legal and Factual Sufficiency
1. Law
We review issues of legal and factual sufficiency de novo. United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002) (citation omitted). Our assess-
ment of legal and factual sufficiency is limited to evidence produced at trial.
United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993) (citations omitted).
“The test for legal sufficiency is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” United
States v. Robinson, 77 M.J. 294, 297–98 (C.A.A.F. 2018) (quoting United States
v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017)). “The term reasonable doubt, how-
ever, does not mean that the evidence must be free from conflict.” United States
v. Wheeler, 76 M.J. 564, 568 (A.F. Ct. Crim. App. 2017) (citing United States v.
Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986)), aff’d, 77 M.J. 289 (C.A.A.F. 2018).
“[I]n resolving questions of legal sufficiency, we are bound to draw every rea-
sonable inference from the evidence of record in favor of the prosecution.”
United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001) (citations omitted).
As a result, “[t]he standard for legal sufficiency involves a very low threshold
to sustain a conviction.” United States v. King, 78 M.J. 218, 221 (C.A.A.F. 2019)
(alteration in original) (citation omitted).
The test for factual sufficiency is “whether, after weighing the evidence in
the record of trial and making allowances for not having personally observed
the witnesses, [we are] convinced of the [appellant]’s guilt beyond a reasonable
4
United States v. Knarr, No. ACM 39577
doubt.” United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987). “In conducting
this unique appellate role, we take ‘a fresh, impartial look at the evidence,’
applying ‘neither a presumption of innocence nor a presumption of guilt’ to
‘make [our] own independent determination as to whether the evidence consti-
tutes proof of each required element beyond a reasonable doubt.’” Wheeler, 76
M.J. at 568 (alteration in original) (quoting Washington, 57 M.J. at 399).
In order to find Appellant guilty of an attempt in violation of Article 80,
UCMJ, the military judge was required to find the following elements proven
beyond a reasonable doubt: (1) that Appellant did a certain overt act; (2) that
the act was done with the specific intent to commit a certain offense under the
code; (3) that the act amounted to more than mere preparation; and (4) that
the act apparently tended to effect the commission of the intended offense.
Manual for Courts-Martial, United States (2016 ed.) (MCM), pt. IV, ¶ 4.b. The
elements for sexual abuse of a child by indecent communication in violation of
Article 120b, UCMJ, as charged here, required the Government to prove be-
yond a reasonable doubt: (1) Appellant intentionally communicated indecent
language to a child under the age of 16 years; and (2) he did so with the intent
to gratify his sexual desire. See MCM, pt. IV, ¶ 45b.b.(4)(d). “‘Indecent’ lan-
guage is that which is grossly offensive to modesty, decency, or propriety, or
shocks the moral sense, because of its vulgar, filthy, or disgusting nature, or
its tendency to incite lustful thought. Language is indecent if it tends reason-
ably to corrupt morals or incite libidinous thoughts.” MCM, pt. IV, ¶ 89.c.
Appellant’s conviction for solicitation to commit an offense in violation of
Article 134, UCMJ, as charged here, required the military judge to find the
following elements beyond a reasonable doubt: (1) that Appellant solicited
“Ella” to commit a certain offense under the code; (2) that Appellant did so with
the intent that the offense actually be committed; and (3) that, under the cir-
cumstances, Appellant’s conduct was of a nature to bring discredit upon the
armed forces. See MCM, pt. IV, ¶ 105.b. The elements for distribution of child
pornography in violation of Article 134, UCMJ, include: (1) knowing and
wrongful distribution of child pornography to another; and (2) that, under the
circumstances, the conduct was prejudicial to good order and discipline in the
armed forces or of a nature to bring discredit on the armed forces. See MCM,
pt. IV, ¶ 68b.b.(3). “Child pornography” is defined as “material that contains
either an obscene visual depiction of a minor engaging in sexually explicit con-
duct or a visual depiction of an actual minor engaging in sexually explicit con-
duct.” MCM, pt. IV, ¶ 68b.c.(1). “Sexually explicit conduct” includes the “actual
or simulated . . . lascivious exhibition of the genitals or pubic area of any per-
son.” MCM, pt. IV, ¶ 68b.c.(7).
2. Analysis
5
United States v. Knarr, No. ACM 39577
Appellant argues the evidence is legally and factually insufficient to sup-
port his convictions. We consider each offense in turn.
a. Attempted Sexual Abuse of a Child (Charge I)
The Government’s proof of this offense was very strong. There is little room
for doubt that Appellant sent the charged messages to “Ella,” despite the fact
that she told him—and he acknowledged—that she was only 14 years old. The
Specification of Charge I quotes numerous sexually-oriented messages Appel-
lant sent “Ella,” including, as referenced above, questions about masturbation,
explicit references to engaging in sexual acts together, and requests for photos
of “Ella” either naked or clad only in underwear. We find such messages to a
14-year-old child qualify as “indecent,” and that Appellant intended to gratify
his sexual desire. Moreover, by sending the messages, Appellant committed an
overt act beyond mere preparation with the specific intent to commit the of-
fense of sexual abuse of a child, and his actions tended to bring about the com-
mission of the offense, but for the fact that “Ella” was not a real 14-year-old
girl.
On appeal, as at trial, Appellant defends on the basis that he knew law
enforcement was behind the “Ella” persona all along, and he did not actually
believe “Ella” was a real person. Appellant cites several potential weak points
in the NCIS operation as it related to him. For example, the advertisement
Appellant initially responded to was intended to portray a “bad dad” scenario,
where a purported parent was offering his minor daughter for sexual purposes.
When Appellant’s response suggested he misinterpreted the advertisement as
being from the “daughter” herself, the agent modified the scenario, which cre-
ated incongruity between the initial posting and the subsequent communica-
tions. In addition, Government witnesses conceded that having three different
individuals operate the “Ella” persona was not ideal, but the agents compen-
sated by reviewing the messages the other agents exchanged with Appellant,
and there are no obvious gaps in the continuity of the messages. The operation
relied on photos of Cpl HF, a 21-year-old woman, albeit a woman apparently
selected for her youthful appearance. Furthermore, as the Defense pointed out,
the NCIS posted multiple Craigslist advertisements for the Okinawa region at
the same time, and Appellant responded to others in addition to “Ella,” includ-
ing—briefly—a persona known as “Alexis” which also used the same avatar
photo of Cpl HF used for “Ella.”
However, Appellant’s messages to “Ella” never challenged her identity or
indicated he believed law enforcement agents were behind the persona. In-
stead, his messages consistently portray someone who found messaging with
“Ella” sexually stimulating and hoped to receive naked photos of her. Appel-
lant’s attempts to find nuances in his messages indicating his messages were
some sort of game with law enforcement are unconvincing, as are his claims
6
United States v. Knarr, No. ACM 39577
during his AFOSI interview that he did not believe “Ella” was real. It is possi-
ble that, at some late stage before he was summoned to AFOSI, Appellant even-
tually suspected or believed “Ella” was fictitious—in fact, trial counsel sug-
gested as much during the Government’s closing argument. However, we are
satisfied the messages charged in the Specification of Charge I were intended
for someone Appellant believed to be a 14-year-old girl.
b. Solicitation to Distribute Child Pornography (Charge II)
The Government’s proof that Appellant solicited “Ella” to distribute child
pornography was also strong. Appellant persistently requested and encour-
aged “Ella” to send him naked photographs of herself. In this context, he told
her that he wanted to see “everything,” including her “[c]hest booty and the
rest,” that other people had sent him a lot of “full nude[s],” and most telling,
that he wanted to see her “p***y” and her “c**ch,” which left little doubt that
Appellant solicited “Ella” to send him a lascivious display of her genitals. Such
a distribution would have been knowing and wrongful, and we further find
Appellant’s conduct was of a nature to bring discredit upon the armed forces.
Of course, if Appellant had truly believed that law enforcement agents were
behind “Ella,” then he presumably never expected to receive child pornography
from them. However, we find this argument unconvincing for the reasons
stated above. Appellant correctly observes that “nude” photos of a child are not
necessarily child pornography; but as we have explained, Appellant’s requests
were more specific and solicited a lascivious display of “Ella’s” genitals.
Appellant raises another, more technical argument regarding the charged
solicitation. He contends that because “Ella” was not a real child and could not
send pictures of herself, it was impossible for Appellant to complete the crime
of solicitation. 6 Therefore, he argues, “at best, Appellant had committed the
crime of attempted solicitation,” rather than solicitation. 7
6 Although not asserted by Appellant, we note that the offense might also appear fa-
cially impossible because “Ella,” as a 14-year-old civilian, was not subject to UCMJ
jurisdiction and could not “commit a certain offense under the code.” MCM, pt. IV, ¶
105.b.(1); see Article 2, UCMJ, 10 U.S.C. § 802 (identifying categories of persons subject
to the UCMJ). However, it appears to be settled law that “the solicitation of another
person to commit an offense which, if committed by one subject to the UCMJ, would be
punishable under the UCMJ, is an offense cognizable under Article 134.” United States
v. Robertson, 17 M.J. 846, 851 (N.M.C.M.R. 1984); see United States v. Hanner, No.
ACM S28497, 1993 CMR LEXIS 61, at *6 (A.F.C.M.R. 28 Jan. 1993) (unpub. op.) (“The
person solicited can be a civilian.”) (citations omitted).
7 At trial, the Defense made the same argument in support of a motion for a finding of
not guilty as to the Specification of Charge II, pursuant to R.C.M. 917. The military
judge denied the motion.
7
United States v. Knarr, No. ACM 39577
We are not persuaded. The “general rule is that an accused should be
treated in accordance with the facts as he or she supposed them to be.” United
States v. Riddle, 44 M.J. 282, 286 (C.A.A.F. 1996) (citations omitted). It is un-
equivocally the rule that impossibility is no defense to the crime of attempt in
violation of Article 80, UCMJ. See id. (citations omitted).
The parties have not identified, and we are not aware, of a case in which
this court or our superior court addressed the principle of impossibility in the
context of solicitation charged under Article 134, UCMJ. However, our sister
court addressed this very point in United States v. Dellacamera, No.
201600230, 2017 CCA LEXIS 209, at *4–9 (N.M. Ct. Crim. App. 30 A.K. Marsh. 2017)
(unpub. op.). As in Appellant’s case, Staff Sergeant Dellacamera was charged
with soliciting the production and distribution of child pornography from a fic-
titious persona created by the NCIS that he believed to be a 14-year-old girl.
Id. at *1–4. On appeal, he argued the military judge abused his discretion in
accepting the guilty plea to the solicitation offenses because it was a “legal im-
possibility” for the solicitation to have resulted in the production of child por-
nography. Id. at *4. After reviewing related precedent from the United States
Supreme Court, the United States Court of Appeals for the Armed Forces
(CAAF), the Michigan Supreme Court, and its own prior decisions, the Navy-
Marine Corps Court of Criminal Appeals (NMCCA) concluded “the appellant’s
mistaken notion regarding the identity of the party he solicited affords him no
defense in military jurisprudence.” Id. at *9; see United States v. Williams, 553
U.S. 285, 300 (2008) (“As with other inchoate crimes—attempt and conspiracy,
for example—impossibility of completing the crime [of pandering child pornog-
raphy in violation of 18 U.S.C. § 2252A] because the facts were not as the de-
fendant believed is not a defense.”); United States v. Roeseler, 55 M.J. 286, 291
(C.A.A.F. 2001) (citing United States v. Thomas, 13 C.M.A. 278, 286–87
(C.M.A. 1962)) (“[I]mpossibility of the crime attempted or conspired is not a
defense to a charge of attempt or conspiracy under military law.”); People v.
Thousand, 631 N.W.2d 694, 703 (Mich. 2001) (noting the court has never rec-
ognized impossibility as a defense to attempt or solicitation, and is “unable to
locate any authority . . . that ‘impossibility’ is a recognized defense to a charge
of solicitation in other jurisdictions”).
Appellant notes that Dellacamera involved a guilty plea and therefore a
different standard of review on appeal. See Dellacamera, unpub. op. at *1–4.
However, the substantive principles regarding the legal sufficiency of the con-
viction are not materially different. We agree with our NMCCA counterparts
and hold that, provided the elements of the offense are otherwise satisfied, the
impossibility of the crime solicited is not a defense to solicitation in violation
of Article 134, UCMJ.
c. Conclusion as to Legal and Factual Sufficiency
8
United States v. Knarr, No. ACM 39577
Drawing every reasonable inference from the evidence of record in favor of
the Government, we conclude the evidence was legally sufficient to support
Appellant’s conviction of Charges I and II and their Specifications beyond a
reasonable doubt. See Robinson, 77 M.J. at 297–98. Additionally, having
weighed the evidence in the record of trial and having made allowances for not
having personally observed the witnesses, we are convinced of Appellant’s guilt
beyond a reasonable doubt. See Turner, 25 M.J. at 325.
B. First Amendment
1. Additional Background
On 6 April 2017, almost two months after Appellant first contacted “Ella,”
he texted her the following lyrics from a song by the recording artist Ludacris:
I wanna li-li-li-li-lick your [sic] from your head to yo toes, I
wanna move from the bed down to the down to the floor and i
wanna ah ah make it feel so good you dont wanna leave. So tell
me what is your fa-fa-fantasy?
By this point in time, Appellant had already sent numerous sexually-
charged messages to “Ella,” including questions about masturbation, descrip-
tions of his thoughts and fantasies about engaging in sexual acts with her, and
repeated requests that she send him naked pictures of herself. “Ella” re-
sponded, “Is that what u wanna do to me?” Appellant responded: “Word. You
down?” Shortly thereafter, Appellant texted “Ella”: “I wanna see you naked,”
“Be bad for me,” “Take naughty pictures,” and “Do it for me.”
The lyrics quoted above were among the charged indecent language quoted
verbatim in the Specification of Charge I. At the Defense’s request, the military
judge took judicial notice that these lyrics were from a song by Ludacris. The
military judge found Appellant guilty of the entire Specification, including the
song lyrics.
2. Law
“The constitutionality of an act of Congress is a question of law that we
review de novo.” United States v. Ali, 71 M.J. 256, 265 (C.A.A.F. 2012) (citing
United States v. Disney, 62 M.J. 46, 48 (C.A.A.F. 2005)). We also review issues
of legal sufficiency de novo. United States v. Meakin, 78 M.J. 396, 400 (C.A.A.F.
2019) (citing United States v. Kearns, 73 M.J. 177, 180 (C.A.A.F. 2014)).
“‘Indecent’ language is that which is grossly offensive to modesty, decency,
or propriety, or shocks the moral sense, because of its vulgar, filthy, or disgust-
ing nature, or its tendency to incite lustful thought. Language is indecent if it
tends reasonably to corrupt morals or incite libidinous thoughts.” MCM, pt. IV,
¶ 89.c. The indecency of a communication depends on “the context in which it
is made.” United States v. Green, 68 M.J. 266, 270 (C.A.A.F. 2010) (citation
9
United States v. Knarr, No. ACM 39577
omitted); see also United States v. Hullett, 40 M.J. 189, 191 (C.M.A. 1994) (not-
ing that whether language is indecent depends on multiple factors including,
inter alia, fluctuating community standards, personal relationships, motive,
intent, and probable effect) (citations omitted).
The CAAF “has long held that ‘indecent’ is synonymous with obscene.”
Meakin, 78 M.J. at 401 (citing United States v. Moore, 38 M.J. 490, 492 (C.M.A.
1994)). “It is well-settled law that obscenity is not speech protected by the First
Amendment, regardless of the military or civilian status of the ‘speaker.’” Id.
(citing United States v. Williams, 553 U.S. 285, 288 (2008); United States v.
Wilcox, 66 M.J. 442, 447 (C.A.A.F. 2008)).
3. Analysis
Appellant notes the Supreme Court has held that, in order to be proscribed
by state law as obscene material outside the protection of the First Amend-
ment, a work must “appeal to the prurient interest in sex, [ ] portray sexual
conduct in a patently offensive way, and . . . taken as a whole, [ ] not have
serious literary, artistic, political, or scientific value.” Miller v. California, 413
U.S. 15, 24 (1973). Appellant reasons that the lyrics to a commercially-released
song by a well-known recording artist that achieved significant popularity do
not lack serious artistic value. Therefore, he concludes, these lyrics were pro-
tected by the First Amendment, and his recitation of them to “Ella” was not
obscene. We disagree.
As the CAAF has recognized, the context of a communication is critical to
any determination of indecency. See Green, 68 M.J. at 270. Words that are in-
nocent or appropriate in one context may take on an indecent meaning in an-
other. In the instant case, Appellant did not share these lyrics in the context
of a discussion about music or recording artists. Appellant shared the lyrics as
a continuation of prior communications expressing his sexual desires for some-
one who he believed to be a 14-year-old child, and from whom he sought naked
photographs of herself. Under these circumstances, Appellant’s use of the lyr-
ics, as distinct from their original creation, had no serious artistic value; ra-
ther, it was a continued manifestation of Appellant’s patently offensive sexual
interest and enticement of a perceived child.
Appellant cites additional Supreme Court precedent for the proposition
that the CAAF’s holding in Moore, 38 M.J. at 492, that “indecent” is synony-
mous with “obscene” is no longer good law. See Reno v. ACLU, 521 U.S. 844,
874 (1997) (“‘[S]exual expression which is indecent but not obscene is protected
by the First Amendment.’”) (quoting Sable Communications of Cal. v. FCC, 492
U.S. 115, 126 (1989)). However, the CAAF recently reaffirmed this very point
in Meakin, 78 M.J. at 401 (citing Moore, 38 M.J. at 492)). We are not at liberty
to contradict our superior court on a point of law, nor would we be inclined to
10
United States v. Knarr, No. ACM 39577
do so had we the power. In context, Appellant’s communication of the lyrics to
“Ella” was both indecent and obscene, and this assignment of error is without
merit.
C. Testimony about Other People
1. Additional Background
On direct examination, SA KP testified he received “numerous” responses
to the Craigslist advertisement in addition to Appellant’s response. Senior trial
counsel asked SA KP to describe the “nature” of those responses. SA KP re-
plied:
It varied. Some people understood what the ad meant. Some peo-
ple picked up -- the dollar sign for instance, is typically used
when we’re talking about prostitution or sex for money in
Craigslist; some people picked up on that. Other people, you get
a lot of responses where they’re just trying to clarify what ex-
actly you’re saying. People that are interested, they may be too
scared, all the way to people, you know telling you you’re sick
and disgusting and they’re going to report you, which is ex-
pected. And then, also responses where people misread the ad
and thought I was actually a female posting.
Shortly thereafter, senior trial counsel asked SA KP to compare how Ap-
pellant’s response to the advertisement compared to a “typical response.” SA
KP responded that although he did not know if there was a “typical response,”
“usually you’ve got people who are asking clarifying questions, they’re kind of
feeling around to see exactly what’s going on or what the ad relates to.” By
comparison, SA KP testified, Appellant was “very direct on the initial response
and included photographs right away.”
Later, senior trial counsel asked if SA KP’s response to Appellant—as
“Ella”—stating, “oh my. im a bit young, is 14 ok with u? a lot of ppl freak out,”
was a “typical reply.” SA KP explained:
Very typical. So, and you see I am putting the age out there. The
reason why I’m doing that is because posting these ads we may
literally have 100 responses to these ads, so you have to sort
through them and figure out what’s worth your time investment,
and who’s worthy of continuing to chat. The majority of people
that respond, if I give them some type of comment about my age
right away, I’m going to knock off 98 percent probably of our re-
sponders because you’re going to get the typical response you
know “14 way too young, not what I was looking for,” and they
go away and they stop communications. So that -- that being the
first response, especially when I’m receiving such a very direct
11
United States v. Knarr, No. ACM 39577
response and photographs was just my way of saying “hey, this
is who I am are you serious; are you going to continue talking,
or are you going to fall off.”
Trial defense counsel did not object to any of this testimony.
2. Law
We review a military judge’s decision to admit evidence for an abuse of dis-
cretion. United States v. Finch, 79 M.J. 389, 394 (C.A.A.F. 2020) (citing United
States v. Frost, 79 M.J. 104, 109 (C.A.A.F. 2019)) (additional citation omitted).
However, the failure to make a timely objection to evidence at trial forfeits that
error in the absence of plain error. See Mil. R. Evid. 103(a)(1)(A); United States
v. Knapp, 73 M.J. 33, 36 (C.A.A.F. 2014) (citation omitted). To prevail under a
plain error analysis, an appellant must show: “(1) there was an error; (2) it was
plain or obvious; and (3) the error materially prejudiced a substantial right.”
United States v. Erickson, 65 M.J. 221, 223 (C.A.A.F. 2007) (citations omitted).
The burden of proof under a plain error review is on the appellant. See United
States v. Sewell, 76 M.J. 14, 18 (C.A.A.F. 2017) (citation omitted).
Mil. R. Evid. 401 establishes the standard for determining whether evi-
dence is relevant, stating “[e]vidence is relevant if (a) it has a tendency to make
a fact more or less probable than it would be without the evidence; and (b) the
fact is of consequence in determining the action.” Mil. R. Evid. 402 generally
provides that “relevant evidence” is admissible unless one of four exceptions
enumerated in the Rule applies. Mil. R. Evid. 403 states that relevant evidence
may be excluded “if its probative value is substantially outweighed by a danger
of . . . unfair prejudice, confusing the issues, misleading the members, undue
delay, wasting time, or needlessly presenting cumulative evidence.”
3. Analysis
Appellant contends the military judge erred in allowing SA KP to testify
about “typical responses” to the Craigslist advertisement. He compares this
situation to that in United States v. Hintz, No. ACM 39136, 2018 CCA LEXIS
186, at *6–14 (A.F. Ct. Crim. App. 13 Apr. 2018) (unpub. op.), rev. denied, 78
M.J. 56 (C.A.A.F. 2018). Hintz involved a similar situation in which the appel-
lant responded to a Craigslist advertisement posted by “Lisa,” a fictitious 13-
year-old persona created by an AFOSI agent. Id. at *3–4. Over defense objec-
tion, the military judge permitted trial counsel to elicit testimony regarding
how individuals “typically” responded upon learning “Lisa” was 13 years old.
Id. at *7–9. This court found the military judge abused her discretion in allow-
ing such testimony, in combination with additional testimony from the agent
“as to how Appellant behaved like a child predator, that Appellant had the
intent to have sex with a 13-year-old child, and that Appellant did not act like
12
United States v. Knarr, No. ACM 39577
an ‘innocent’ person would under the circumstances.” Id. at *13. However, we
found the error harmless. Id. at *15–18.
We are not persuaded the military judge’s failure to exclude sua sponte SA
KP’s testimony regarding “typical” responses to the Craigslist advertisement
resulted in prejudicial error in Appellant’s case for several reasons.
First, the error in Hintz was far more egregious than that Appellant alleges
here. In Hintz, the agent was permitted not only to contrast the appellant’s
response with “typical” responses to learning “Lisa’s” age; he essentially testi-
fied before the court members that, based on his training regarding “child pred-
ators,” the appellant was “different than an otherwise innocent person” and
wanted to have sex with a 13-year-old child. Id. at *10–11. The Government
neither solicited nor elicited any such testimony in Appellant’s case.
Second, unlike Hintz, Appellant’s trial defense counsel did not object to SA
KP’s testimony. Because he forfeited the objection, the question on appeal is
whether the military judge “plainly” or “obviously” erred by failing to exclude
sua sponte testimony the Defense evidently found unobjectionable.
We conclude the military judge did not plainly err. We acknowledge the
testimony regarding what other individuals did may have been excludable. On
appeal, the Government contends SA KP’s testimony “was entirely relevant to
show the steps of the investigation that lead to identifying Appellant and fig-
uring out his mens rea.” We find this purported relevance and materiality to
be marginal; SA KP could easily have explained the steps he took with respect
to Appellant without reference to what others did. However, if the relevance
was low, so was the risk of unfair prejudice. There is nothing surprising in SA
KP’s testimony regarding the wide range of responses to the initial advertise-
ment. Unlike Hintz, the Government did not try to tie testimony comparing
Appellant’s response to the responses of others in order to suggest Appellant
was behaving like a “child predator.” Indeed, Appellant’s initial response to
the advertisement, while very direct and forward, suggested he misinterpreted
the advertisement and did not understand it to be an offer of child prostitution,
or even to involve a child at all.
Furthermore, Appellant was tried by a military judge alone. As the CAAF
has explained:
When the issue of plain error involves a judge-alone trial, an ap-
pellant faces a particularly high hurdle. A military judge is pre-
sumed to know the law and apply it correctly, is presumed capa-
ble of filtering out inadmissible evidence, and is presumed not to
have relied on such evidence on the question of guilt or inno-
cence. . . . As a result, “plain error before a military judge sitting
alone is rare indeed.”
13
United States v. Knarr, No. ACM 39577
United States v. Robbins, 52 M.J. 455, 457 (C.A.A.F. 2000) (citations omitted).
We find no indication the military judge used SA KP’s testimony inappropri-
ately. Accordingly, Appellant has not carried his burden to demonstrate a plain
or obvious error, or that the alleged error materially prejudiced his substantial
rights. See Sewell, 76 M.J. at 18 (citation omitted).
D. Mil. R. Evid. 404(b)
1. Additional Background
In findings, the Defense offered early portions of Appellant’s video-recorded
AFOSI interview in which Appellant repeatedly asserted he believed “Ella”
was a fictitious persona created by law enforcement agents and indicated he
did not knowingly engage in sexual communications with underage females.
In response, the Government sought to introduce additional portions of the in-
terview and portions of Appellant’s written statement pursuant to Mil. R. Evid.
106. Among other sections, the Government sought to introduce information
from Appellant’s written statement that when he was 20 or 21 years old, he
dated a 16-year-old girl, T, who sent him “a large number of inappropriate pho-
tos” during their relationship. The Government also sought to include related
portions of the interview in which Appellant referred to T by name as someone
he dated when she was 16 or 17 years old, and later acknowledged she had
sent him naked photos of herself.
Senior defense counsel objected to the references to T, including to Appel-
lant having received a large number of inappropriate photos from her. He con-
tended that the reference to “inappropriate photos” did not necessarily connote
child pornography, and that the statements were “too vague” and “just doesn’t
get to the [relevant] issues.” In response, senior trial counsel explained:
[W]e’re not entering this as propensity evidence. . . . We have
specific purposes, the main one of which is to impeach [Appel-
lant’s] OSI statements to show that he has internal inconsisten-
cies. At the beginning, he’s saying one thing very clearly, and
then by the end he’s admitting that that was a complete false-
hood. So, to impeach him, as well as again, to show his conscious-
ness of guilt. And so, these are appropriate bases that rebut this
evidence that defense has presented . . . .
The military judge overruled the objection. He found the evidence in ques-
tion was relevant to demonstrate Appellant’s consciousness of guilt and to im-
peach Appellant’s other statements offered by the Defense. The military judge
further found the probative value was not substantially outweighed by the dan-
ger of unfair prejudice under Mil. R. Evid. 403, although he did not recite his
reasoning in detail.
2. Law
14
United States v. Knarr, No. ACM 39577
“The standard of review for a military judge’s decision to admit evidence is
abuse of discretion.” United States v. Fetrow, 76 M.J. 181, 185 (C.A.A.F. 2017)
(citing United States v. Yammine, 69 M.J. 70, 73 (C.A.A.F. 2010)). “A military
judge abuses his discretion when: (1) the findings of fact upon which he predi-
cates his ruling are not supported by the evidence of record; (2) if incorrect legal
principles were used; or (3) if his application of the correct legal principles to
the facts is clearly unreasonable.” United States v. Ellis, 68 M.J. 341, 344
(C.A.A.F. 2010) (citation omitted).
Mil. R. Evid. 106 provides that “[i]f a party introduces all or part of a writ-
ing or recorded statement, an adverse party may require the introduction, at
that time, of any other part – or any other writing or recorded statement – that
in fairness ought to be considered at the same time.”
Mil. R. Evid. 404(b) provides that evidence of a crime, wrong, or other act
by a person is generally not admissible as evidence of the person’s character in
order to show the person acted in conformity with that character on a particu-
lar occasion. However, such evidence may be admissible for another purpose,
including, inter alia, proving intent, knowledge, or absence of mistake. Mil. R.
Evid. 404(b)(2). The list of potential purposes in Mil. R. Evid. 404(b)(2) “is il-
lustrative, not exhaustive.” United States v. Ferguson, 28 M.J. 104, 108 (C.M.A.
1989). We apply a three-part test to review the admissibility of evidence under
Mil. R. Evid. 404(b): (1) does the evidence “reasonably support a finding” that
the accused committed the prior crime, wrong, or act; (2) what “fact of . . . con-
sequence is made more or less probable” by the proffered evidence; and (3) is
the “probative value . . . substantially outweighed by the danger of unfair prej-
udice?” United States v. Reynolds, 29 M.J. 105, 109 (C.M.A. 1989) (internal
quotation marks and citations omitted).
Mil. R. Evid. 403 provides that evidence that is relevant and otherwise ad-
missible may be excluded if its probative value is substantially outweighed by
the danger of, inter alia, unfair prejudice or confusion of the issues.
3. Analysis
Appellant asserts the military judge abused his discretion in admitting Ap-
pellant’s statement that he received a large number of inappropriate photo-
graphs from T. As senior defense counsel noted at trial, “inappropriate” photo-
graphs do not necessarily indicate child pornography. Appellant further con-
tends that in order to be an offense under the UCMJ, the conduct would need
to be prejudicial to good order and discipline or service-discrediting; he argues
his conduct with T was not necessarily either. See MCM, pt. IV, ¶ 68b.b.(1)(b).
A basic flaw in Appellant’s argument is that the Government did not offer
these statements as evidence of a similar crime in a sexual offense or child
molestation prosecution in order to demonstrate propensity pursuant to Mil.
15
United States v. Knarr, No. ACM 39577
R. Evid. 413 or 414. In fact, senior trial counsel specifically disavowed such a
purpose. Therefore, the relevance of the evidence did not hinge specifically on
it being evidence of a sexual offense. Instead, the Government offered the evi-
dence on two other theories of relevance—that these contradictory statements
impeached Appellant’s earlier statements offered by the Defense, and that Ap-
pellant’s false statements indicate consciousness of guilt. The military judge
understood and admitted the evidence on these bases, and we conclude he did
not abuse his discretion in doing so.
The Defense offered a portion of Appellant’s AFOSI interview in support of
its theory that Appellant never believed “Ella” was an actual 14-year-old child.
In the portion of the interview the Defense offered, Appellant indicated he did
not knowingly have sexual communications with children. He claimed his com-
munications with “Ella” were part of a game he was playing, and had played
in the past, with what he believed to be fictitious personas created by law en-
forcement agents. However, later portions of the interview offered by the Gov-
ernment, including the reference to receiving inappropriate photos from T,
which he orally admitted included naked photos, contradicted his earlier state-
ments—regardless of whether they constituted admissions to receiving child
pornography in violation of the UCMJ. Therefore, they were relevant as infor-
mation that should be considered with the rest of the interview pursuant to
Mil. R. Evid. 106 for its impact on Appellant’s reliability generally and the re-
liability of Appellant’s earlier statements to AFOSI that the Defense sought to
use in support of its case. These contradictory admissions were also relevant
for another non-propensity purpose under Mil. R. Evid. 404(b)—to demon-
strate consciousness of guilt. See United States v. Staton, 69 M.J. 228, 230
(C.A.A.F. 2010) (noting uncharged misconduct may be admissible under Mil.
R. Evid. 404(b) as evidence of consciousness of guilt) (quoting United States v.
Cook, 48 M.J. 64, 66 (C.A.A.F. 1998)).
We further conclude the military judge properly found the probative value
of the evidence was not substantially outweighed by the danger of unfair prej-
udice. Although we afford the military judge less deference because he did not
articulate his reasoning in this regard, see United States v. Manns, 54 M.J.
164, 166 (C.A.A.F. 2000), we nevertheless find his conclusion reasonable—par-
ticularly so given that this was a trial by military judge alone, minimizing the
danger of unfair prejudice. See Erickson, 65 M.J. at 225 (citation omitted) (“Mil-
itary judges are presumed to know the law and to follow it absent clear evi-
dence to the contrary.”).
E. Expert Testimony
1. Additional Background
16
United States v. Knarr, No. ACM 39577
The Government called Ms. KR in findings. Ms. KR testified that she
worked as a computer forensic examiner at the DC3, where she had been em-
ployed for seven years, five of which were spent conducting forensic examina-
tions. Ms. KR explained she was required to demonstrate her competency by
passing an annual practical exam, and she had taken 15 training classes total-
ing approximately 600 hours. Ms. KR was trained to use five different pro-
grams to perform analyses on electronic media. She held seven professional
certifications and had testified twice previously as an expert in “digital foren-
sics.” She held bachelor’s degrees in psychobiology and forensic science, and a
master’s degree in biomedical forensics. After eliciting this testimony and hav-
ing Ms. KR’s curriculum vitae admitted as a prosecution exhibit, trial counsel
requested the military judge recognize Ms. KR as an expert witness in digital
forensics.
Senior defense counsel objected. With the military judge’s permission, he
questioned Ms. KR about her qualifications. Senior defense counsel clarified
that only two of Ms. KR’s certifications related to analysis rather than extrac-
tion of data, and that for the most part her training was not specific to mobile
devices, although the forensic practices she was trained in might apply to mo-
bile devices as well other devices. Senior defense counsel argued to the military
judge that although Ms. KR might testify as a fact witness as the individual
who extracted data from Appellant’s phone, she was not qualified to testify as
“an expert in analyzing mobile devices.” The military judge overruled the ob-
jection and recognized Ms. KR as an expert in digital forensics “based on her
knowledge, skill, experience, training, and education,” acknowledging the De-
fense was “free to, in cross-examination, point out all those other issues.”
2. Law
We review a military judge’s decision regarding the qualifications of an ex-
pert witness for an abuse of discretion. United States v. Allison, 63 M.J. 365,
369 (C.A.A.F. 2006) (citation omitted). “A witness may testify as an ‘expert’ on
a particular subject matter only if the military judge determines that the wit-
ness is qualified based on his or her ‘knowledge, skill, experience, training, or
education’ regarding that subject.” Id. (citing Mil. R. Evid. 702). A qualified
expert “may testify in the form of an opinion or otherwise” if her
specialized knowledge will help the trier of fact to understand
the evidence or to determine a fact in issue; [ ] the testimony is
based on sufficient facts or data; [ ] the testimony is the product
of reliable principles and methods; and [ ] the expert has reliably
applied the principles and methods to the facts of the case.
Mil. R. Evid. 702.
17
United States v. Knarr, No. ACM 39577
The CAAF has identified six factors for courts to analyze to determine
whether a proponent of expert testimony has met the Mil. R. Evid. 702 criteria:
(1) the qualifications of the expert; (2) the subject matter of the
expert testimony; (3) the basis for the expert testimony; (4) the
legal relevance of the evidence; (5) the reliability of the evidence;
and (6) that the probative value of the expert’s testimony out-
weighs the other considerations outlined in [Mil. R. Evid.] 403.
United States v. Billings, 61 M.J. 163, 166 (C.A.A.F. 2005) (citing United States
v. Houser, 36 M.J. 392, 397 (C.M.A. 1993)). Although Houser predates the lead-
ing Supreme Court decisions in this area, Daubert v. Merrell Dow Pharmaceu-
ticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S.
137 (1999), Houser is consistent with these decisions and continues to guide
the admission of expert testimony in courts-martial. Billings, 61 M.J. at 166
(citations omitted).
3. Analysis
Appellant contends the military judge abused his discretion by permitting
Ms. KR to testify as an expert in digital forensics. He argues she had no formal
education in digital forensics, and her training and certification did not relate
to analysis of mobile devices, which was the type of media at issue in this case.
He also argues her testimony “relate[d] only to her work in digital forensics,
and not in analyzing mobile devices.”
We find the military judge acted well within his discretion in permitting
Ms. KR’s expert testimony. Ms. KR’s years of training and experience as a com-
puter forensic examiner provided her an ample background as an expert in
digital forensics for purposes of Appellant’s court-martial. To the extent her
training and certifications were not specific to mobile devices but involved
more generally-applicable forensic practices, that was a matter for the Defense
to potentially explore on cross-examination, as the military judge recognized.
As for relevance, Appellant fails to explain why qualification as an expert in
“digital forensics” would not encompass analysis of mobile devices as well as
other devices.
F. Sentence Appropriateness
1. Law
We review issues of sentence appropriateness de novo. United States v.
Lane, 64 M.J. 1, 2 (C.A.A.F. 2006) (citing United States v. Cole, 31 M.J. 270,
272 (C.M.A. 1990)). We may affirm only as much of the sentence as we find
correct in law and fact and determine should be approved on the basis of the
entire record. Article 66(c), UCMJ, 10 U.S.C. § 866(c). “We assess sentence ap-
18
United States v. Knarr, No. ACM 39577
propriateness by considering the particular appellant, the nature and serious-
ness of the offense[s], the appellant’s record of service, and all matters con-
tained in the record of trial.” United States v. Sauk, 74 M.J. 594, 606 (A.F. Ct.
Crim. App. 2015) (en banc) (per curiam) (alteration in original) (citing United
States v. Anderson, 67 M.J. 703, 705 (A.F. Ct. Crim. App. 2009)). Although we
have great discretion to determine whether a sentence is appropriate, we have
no authority to grant mercy. United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F.
2010).
2. Analysis
Appellant contends his dishonorable discharge is an inappropriately severe
punishment. He cites two factors: that he never attempted to meet with “Ella,”
and that he stopped communicating with “Ella” on his own—before he was con-
tacted directly by investigators—because he became a father. Appellant avers
these factors warrant modifying his dishonorable discharge to a bad-conduct
discharge.
We do not conclude the dishonorable discharge is inappropriately severe as
a matter of law. Over approximately two and a half months, Appellant repeat-
edly communicated indecent sexual language to a person he believed to be a
14-year-old child, despite acknowledging from the outset that “Ella” was too
young and that doing so would be illegal. He also repeatedly and persistently
attempted to persuade her to send him naked photographs of herself that
would display “everything.” The harm caused by Appellant’s actions was miti-
gated by the fact that “Ella” was not real, but his intent was clear. Having
given individualized consideration to Appellant, the nature and seriousness of
the offenses, Appellant’s record of service, and all other matters contained in
the record of trial, we find his sentence—including the dishonorable dis-
charge—is not inappropriately severe. See Sauk, 74 M.J. at 606.
G. Post-Trial Delay
Although not raised as an assignment of error, we note the convening au-
thority took action on 5 November 2018, but Appellant’s case was not docketed
with this court until 6 December 2018, 31 days later. This period exceeded the
30-day threshold for a presumptively unreasonable post-trial delay the CAAF
established in United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). Ac-
cordingly, we have considered the four factors identified in Moreno to assess
whether Appellant’s due process right to timely post-trial and appellate re-
view has been violated. Id. at 135 (citing United States v. Jones, 61 M.J. 80, 83
(C.A.A.F. 2005), Toohey v. United States, 60 M.J. 100, 102 (C.A.A.F. 2004)).
Where, as here, an appellant has not shown prejudice from the delay, there
is no due process violation unless the delay is so egregious as to “adversely
affect the public’s perception of the fairness and integrity of the military justice
19
United States v. Knarr, No. ACM 39577
system.” United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006). Consider-
ing all the circumstances together, including that the convening authority took
action only 112 days after Appellant was sentenced, well within the 120-day
Moreno standard; the geographic distances involved in transmitting the record
of trial from Japan to this court; and that the applicable Moreno standard was
exceeded by only one day, we are convinced the delay was not so egregious as
to impugn the fairness and integrity of the military justice system.
Recognizing our authority under Article 66(c), UCMJ, we have also consid-
ered whether relief for excessive post-trial delay is appropriate even in the ab-
sence of a due process violation. See United States v. Tardif, 57 M.J. 219, 225
(C.A.A.F. 2002). After considering the factors enumerated in United States v.
Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F.
2016), we conclude it is not.
III. CONCLUSION
The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
20 | 01-03-2023 | 06-04-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/4538739/ | In the United States Court of Federal Claims
No. 19-663C
(Filed: June 3, 2020)
********************************************** )
JOEL V. KELTNER, )
)
Plaintiff, ) Military Pay; Board for Correction of
) Military Records; Motion For Voluntary
v. ) Remand; Remand Statute; SKF USA Inc.
) v. United States; Administrative Record
THE UNITED STATES, ) Review; RCFC 52.2.
)
Defendant. )
)
****************************************
Sara Ruvic, Buckley, LLP, Washington, DC, for plaintiff. With her on the briefs was
Meghann Fogarty Kovler.
John M. McAdams III, United States Department of Justice, Civil Division, Washington,
DC, for defendant. With him on the briefs were Joseph H. Hunt, Assistant Attorney
General, Civil Division, Robert E. Kirschman, Jr., Director, and Douglas K. Mickle,
Assistant Director, Commercial Litigation Branch, Civil Division, United States
Department of Justice, Washington, DC.
OPINION AND ORDER
SOLOMSON, Judge.
I. Background
Plaintiff, Joel V. Keltner, seeks disability retirement pay and benefits, which he
alleges the United States Department of the Air Force (“Air Force”) unlawfully has
denied him. The government moved to stay the case and for this Court to grant a
voluntary remand of the matter to the Air Force Board for Correction of Military
Records (“AFBCMR”) pursuant to Rule 52.2 of the Rules of the Court of Federal Claims
(“RCFC”). Before resolving the government’s motion, this section summarizes the
underlying facts and procedural history. For the purposes of resolving the pending
motion, the Court “makes no finding of facts herein and accepts as true all well-pleaded
factual allegations in the Complaint.” Hirsch v. United States, 2019 WL 4316880, at *1 n.1
(Fed. Cl. Sept. 12, 2019) (military pay case arising from Army BCMR decision).
A. Factual Background
Mr. Keltner enlisted in the Air Force approximately two weeks before the
terrorist attacks of September 11, 2001. ECF No. 1 (“Compl.”) ¶ 12. On January 16,
2002, Mr. Keltner entered active duty service, and, in October 2003, Mr. Keltner
deployed to Pakistan for his first of three combat tours of duty. Id. ¶¶ 12-13. On
February 16, 2006, Mr. Keltner transitioned from active duty to the Air Force Reserve,
and, in January 2008, Mr. Keltner deployed again, this time to Iraq. Id.
In August 2011, Mr. Keltner deployed to Afghanistan for his final combat tour of
duty. Compl. ¶ 13. While deployed, Mr. Keltner experienced mortar, rocket, and small
arms fire attacks. Id. ¶ 14. Mr. Keltner also witnessed wounded warfighters, “including
a soldier who had suffered a shrapnel wound to the face.” Id. As is too often the case
with combat veterans, Mr. Keltner’s “deployment to Afghanistan placed significant
stress” on his family as well. Id. ¶ 15. Three weeks prior to his scheduled return date,
Mr. Keltner’s wife informed Mr. Keltner “that she planned to seek a divorce, and that
she and their two children had moved from their home in Kansas to a new home in
Arizona.” Id. In February 2012, Mr. Keltner returned from Afghanistan “to an empty
home.” Id. ¶ 16.
On February 16, 2012, Mr. Keltner completed a Post Deployment Health
Assessment, which did not identify symptoms of Post-Traumatic Stress Disorder
(“PTSD”). Compl. ¶ 16. On August 4, 2012, however, Mr. Keltner completed a Post
Deployment Re-Assessment, which indicated that Mr. Keltner was exhibiting PTSD
symptoms. Id. The Air Force advised Mr. Keltner to seek out behavioral health
services. Id. Thereafter, Mr. Keltner met with his primary care physician who
diagnosed Mr. Keltner with chronic anxiety as well as depression and prescribed a
treatment plan for him. Id. ¶ 17.
On December 1, 2012, Mr. Keltner told members of his unit that he had
considered committing suicide. Compl. ¶ 18. On December 2, 2012, in response to
Mr. Keltner’s comments and at the recommendation of certain Air Force mental health
staff, Mr. Keltner’s superiors took him to a local emergency room for mental health,
suicidal ideation, and homicidal ideation assessments. 1 Id. ¶ 19.
On June 8, 2013, Mr. Keltner completed an Air Force Web Based Health
Assessment and met with a doctor to discuss the results of that assessment. Compl.
¶ 21. The reviewing doctor determined that Mr. Keltner required further assessment
and instructed Mr. Keltner to provide the 442nd Medical Squadron with his medical
1 The Complaint does not describe the results of these assessments.
-2-
records. Id. On September 7, 2013, Mr. Keltner went to the 442nd Medical Squadron for
an additional assessment. Id. ¶ 23. The examiner noted that Mr. Keltner presented
depressed mood and recommended that he undergo further testing for depression,
PTSD, and adjustment disorder. Id. The 442nd Medical Squadron staff also instructed
Mr. Keltner to make an appointment with the 509th Medical Group Mental Health
Clinic for further assessment. Id. On September 17, 2013, Mr. Keltner attended an
appointment at the 509th Medical Group Mental Health Clinic where the examiner
diagnosed Mr. Keltner with chronic adjustment disorder with anxiety and depressed
mood. Id. ¶ 24.
On December 11, 2013, the 442nd Medical Squadron issued a Duty Limiting
Condition Report, which determined that Mr. Keltner was no longer qualified for
deployment. Compl. ¶ 25. A memorandum accompanying the report confirmed that
Mr. Keltner’s duty-limiting condition was his chronic adjustment disorder.2 Id.
According to the Complaint, Air Force Instruction (“AFI”) 36-2910 and AFI 48-
123 required the Air Force to complete a “line of duty determination” to assess whether
Mr. Keltner’s duty-limiting condition occurred “in the line of duty.” Compl. ¶ 26. If the
Air Force determined that Mr. Keltner’s duty-limiting condition occurred in the line of
duty, then Mr. Keltner might qualify for a medical discharge or certain retirement
benefits. Id. ¶ 27. The Air Force, however, allegedly did not complete a line of duty
determination. Id. ¶ 26. Instead, on April 24, 2015, the Air Force informed Mr. Keltner
that it was initiating an honorable administrative discharge separation action against
him. Id. ¶ 28. The effect of the administrative discharge would be to end Mr. Keltner’s
military career, but to do so without entitling him to a medical discharge or certain
associated retirement benefits. Id.
On June 10, 2015, Mr. Keltner appealed the Air Force’s decision to initiate an
honorable administrative discharge separation action to the AFBCMR. Compl. ¶ 28.
The AFBCMR’s decision is at the heart of Mr. Keltner’s Complaint in this Court.
To resolve Mr. Keltner’s appeal, the AFBCMR solicited two medical advisory
opinions: one from Dr. Natalya Chernyak, a psychiatric consultant, and a second from
Colonel June Cook, a representative from the Air Force Reserve Command/Surgeon
General Office (“AFRC/SGO”). Compl. ¶ 29. Both advisory opinions agreed that a line
of duty determination was necessary to assess Mr. Keltner’s claim, and both opinions
proceeded to analyze whether Mr. Keltner’s disorder developed “in the line of duty.”
Id. ¶ 30. The advisory opinions, however, allegedly applied divergent standards and
thus arrived at different conclusions. Dr. Chernyak determined that Mr. Keltner
2The Complaint also variously refers to “chronic adjustment disorder/PTSD.” See, e.g., Compl.
¶ 40. The Complaint is not entirely clear regarding whether they are the same or related
disorders or, if they are distinct, whether Mr. Keltner’s claims depend on the presence of both
disorders.
-3-
incurred his disorder in the line of duty, while COL Cook determined that Mr. Keltner’s
disorder was the result of “personal stressors” and did not occur in the line of duty. Id.
¶¶ 32-34. Mr. Keltner alleges that Dr. Chernyak applied the correct standard as AFI 36-
2910 prescribed, while COL Cook applied a standard that was contrary to AFI 36-2910.
Id. ¶¶ 32–33, 36–37. Further, Mr. Keltner alleges that COL Cook’s advisory opinion was
unsupported by substantial evidence. Id. ¶ 37.
The AFBCMR adopted COL Cook’s advisory opinion and denied Mr. Keltner’s
claim. Compl. ¶ 36. In particular, the AFBCMR concluded:
While we note the comments of AFBCMR Psychiatric Advisor
indicating that relief should be granted because the applicant
was subsequently awarded a 10 percent disability rating for
Post-Traumatic Stress Disorder by the Department of
Veterans Affairs, the Board took notice of the applicant’s
complete submission in judging the merits of the case and
agreed with the opinion and recommendation of AFRC/SGO
and adopt its rationale the applicant has not been a victim of
an error or injustice as we did not find where the applicant’s
mental health issues were the result of military stressors.
Id. (emphasis added).
B. Procedural History
On May 3, 2019, Mr. Keltner filed his Complaint in this Court. See generally ECF
No. 1. On June 28, 2019, the government moved for an extension of time to file its
response to the Complaint, which the Court granted on July 1, 2019. ECF Nos. 5, 6. On
August 22, 2019, the government moved for a second extension of time to file its
response to the Complaint, which the Court granted on August 27, 2019. ECF Nos. 7, 8.
The Court ordered the government to file its response by November 1, 2019. ECF No. 8.
On November 1, 2019, the government filed a motion to stay the current
proceedings and to remand the matter to the AFBCMR pursuant to RCFC 52.2. ECF
No. 9 (“Def. Mot.”). In that motion, the government noted that it had filed the “motion
for voluntary remand in lieu of a response to the complaint” and requested that “the
parties be allowed to submit a proposed schedule for cross-motions for judgment on the
administrative record” if “the Court does not grant this motion.” Def. Mot. at 1 n.1. 3
3The Court is skeptical of the government’s motion and whether it complies with this Court’s
rules. RCFC 12(a)(1)(A) requires the United States to “file an answer to a complaint within 60
days after being served with the complaint.” RCFC 12(a)(4) provides that “serving a motion
under this rule or RCFC 56 alters the[] period[]” for filing an answer and requires the
government to file a responsive pleading to a complaint fourteen days “after notice of the
court’s action” denying a motion under RCFC 12 or 56 in whole or in part, or postponing its
-4-
On December 16, 2019, Mr. Keltner responded to the government’s motion, and the
government filed its reply on December 23, 2019. ECF Nos. 12, 13 [hereinafter “Pl.
Resp.” and “Def. Rep.” respectively]. 4
On March 11, 2020, the Court ordered supplemental briefing. ECF No. 16. The
parties submitted their respective supplemental briefs on March 26, 2020. ECF Nos. 17,
18.
On March 31, 2020, the Court heard oral argument on the government’s motion
for voluntary remand. On March 31, 2020, after giving the government an opportunity
to address the Court’s concerns at oral argument, the Court issued an order striking the
government’s supplemental brief as nonresponsive to, and in violation of, this Court’s
March 11, 2020 Order. ECF No. 19. 5
disposition until trial “or the motion’s withdrawal.” (emphasis added). The government did
not file an answer to the Complaint or a motion under RCFC 12 or 56. Instead, the government
filed a motion for voluntary remand pursuant to RCFC 52.2. RCFC 12 and 56, by their plain
language, do not appear to permit the government’s moving for a voluntary remand pursuant
to RCFC 52.2 in lieu of filing a responsive pleading. In this case, however, what troubles the
Court is that the government moved for two extensions of time to file a “response” to the
Complaint, only to then file a five-page motion for voluntary remand “in lieu of a response to
the complaint” — 182 days after Mr. Keltner filed his Complaint. In a review of other cases
where the government has moved for voluntary remand, the Court has found that the
government often submits motions for voluntary remand along with, or after, filing a
responsive pleading or motion pursuant to RCFC 12 or 56. See, e.g., Hirsch, 2019 WL 4316880, at
*1 (“In response to the plaintiff’s motion for judgement on the administrative record and
concurrent second motion to supplement the administrative record, the government moved to
remand the matter to the Army Board for Correction of Military Records.”); Holmes v. United
States, 142 Fed. Cl. 791, 792 (2019) (“After Mr. Holmes had filed his motion for judgment on the
administrative record, the government responded with a motion for a voluntary remand, which
is the matter presently before the court.”). That practice clearly complies with the Court’s rules;
the Court is unconvinced that the government’s motion in this case did so.
4On February 5, 2020, Judge Mary Ellen Coster Williams reassigned this case to the
undersigned Judge. ECF No. 14.
5On March 11, 2020, the Court ordered the parties to be prepared to address two specific
questions at oral argument, and to submit supplemental briefing with respect to one of those
discrete questions. See ECF No. 16. The March 11, 2020 Order prohibited the parties from
addressing “any new argument or topic beyond that identified in this order.” Id. The
government’s supplemental brief failed to comply with the Court’s March 11, 2020 Order in two
ways: (1) the brief did not address the specific question that the Court ordered the parties to
answer; and (2) the brief raised a waiver argument for the first time. See ECF No. 19. After
permitting the government to address these concerns at oral argument, the Court issued an
Order striking the government’s supplemental brief as nonresponsive. Id.
-5-
During oral argument, there was some discussion regarding whether Mr. Keltner
might consent to a voluntary remand under different conditions than those the
government proposed in its motion for voluntary remand. Accordingly, on March 31,
2020, the Court ordered the plaintiff to file a status report, indicating whether the
plaintiff might consent to a voluntary remand despite having previously opposed the
motion. ECF No. 19. On April 3, 2020, the plaintiff filed a status report, informing the
Court that the parties could not “come to a mutually satisfactory resolution at this time”
and that the plaintiff remained opposed to the government’s motion. ECF No. 20.
For the reasons explained below, the Court DENIES the government’s pending
motion for a voluntary remand.
II. The Government’s Motion For A Voluntary Remand Is Denied
The government’s motion requires the Court to analyze and apply the largely
unexplored jurisprudence of voluntary remands. See Joshua Revesz, Voluntary Remands:
A Critical Reassessment, 70 Admin. L. Rev. 361, 364 (2018) (hereinafter “Voluntary
Remands”) (noting that “[n]o paper written in the last twenty years has explored the law
of voluntary remands”). 6 Ordinarily, the basic principles governing such a remand
request are not in dispute and do not prove difficult to apply. Thus, this Court and
other courts around the country routinely grant such requests. The instant case
illustrates, however, that some clarification of this area of the law is warranted.
The decision of the United States Court of Appeals for the Federal Circuit in SKF
USA Inc. v. United States, 254 F.3d 1022 (Fed. Cir. 2001), generally provides useful — if
not binding — guidance in deciding the government’s pending motion. But few, if any,
courts seem to have grappled with the underlying legal principles since the Federal
Circuit issued its decision in SKF USA. See Voluntary Remands, 70 Admin. L. Rev. at 364
(“[M]ost voluntary-remand decisions are unpublished and unreasoned.”). Instead,
“[s]ince the 1950s, courts almost always issue voluntary remands to government
agencies,” creating a virtual “presumption” that such motions are proper, which “has
been reaffirmed in new context after new context.” Id. at 395. In this case, with good
cause, the Court exercises its discretion and declines to adhere to any such
presumption.
Before turning to the merits of the government’s motion, the Court first provides
a brief history of the jurisprudence concerning voluntary remands leading to the
Federal Circuit’s decision in SKF USA, which organized, and thereby brought some
6Both the United States Court of Appeals for the District of Columbia Circuit and the United
States District Court for the District of Columbia have cited this article approvingly in opinions
addressing motions for voluntary remands. See Limnia, Inc. v. United States Dep’t of Energy, 857
F.3d 379, 387 (D.C. Cir. 2017); Voyageur Outward Bound Sch. v. United States, 2020 WL 1275795, at
*4 n.4 (D.D.C. Mar. 17, 2020).
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structure to, well-established remand principles. Next, the Court summarizes SKF USA
and its progeny. In undertaking such a review, the Court is not attempting an academic
update of the Voluntary Remands article, but rather believes that understanding the
background and overall context of SKF USA illustrates why either (1) remand would be
unwarranted and improper in this matter, or (2) at a minimum, the Court possesses
ample discretion to deny the government’s motion.
A. Early History Of The Law Of Voluntary Remands
A motion for voluntary remand is a government request — after a party has filed
a complaint seeking judicial review of agency action — that the court send the
challenged action back to an agency for further review or reconsideration. The precise
genesis of the law, i.e., the first time a court considered an agency motion for a
voluntary remand, is difficult to pinpoint. 7 Nonetheless, by the early-1960s, the practice
had taken root in American jurisprudence, leading the United States Court of Appeals
for the District of Columbia Circuit to opine: “It is true that when an agency seeks to
7According to at least some scholarship, see Voluntary Remands at 381–82, the United States
Court of Appeals for the Third Circuit’s decision in Berkshire Emps. Ass’n of Berkshire Knitting
Mills v. NLRB, 121 F.2d 235 (3d Cir. 1941), is the genesis of the law of voluntary remands. But
the history does not seem entirely clear. Voluntary Remands summarized the Third Circuit’s
opinion regarding the plaintiff’s request to “review and set aside an order of the National Labor
Relations Board” as follows:
In response, the court equivocated. On the one hand, it
acknowledged that such charges of partiality, if substantiated, went
“beyond the line of fair dealing.” But it hesitated to void the
NLRB’s action, explaining that courts and agencies were
sufficiently different that reviewing courts must be “exceedingly
careful not to jump to hasty conclusions.” Accordingly, it took a
novel middle ground: it sua sponte remanded the case back to the
NLRB, ordering it to “receive the evidence and determine for itself
whether, if the facts are established, one of its members is not
disqualified from further participation in this case.”
70 Admin. L. Rev. at 382 (footnotes omitted). The Third Circuit, however, does not appear to
have remanded the case either sua sponte or per the voluntary request of the government.
Rather, the Third Circuit noted that “[p]rior to the hearing on the main part of the case,” the
plaintiff (and not the government agency) moved “to adduce additional testimony” regarding
the eight “items which it contend[ed] show that it did not have a full and fair hearing before the
Board.” 121 F.2d at 236. The Third Circuit then granted the plaintiff’s “petition to adduce the
additional testimony on [one of the eight] point[s]” that the plaintiff contended showed that the
plaintiff did not have a full and fair hearing before the board. Id. at 239. In granting the
plaintiff’s motion, the Third Circuit “referred [the case] back to the Board” for the NLRB to
“receive the evidence and determine for itself whether, if the facts are established, one of its
members is not disqualified from further participation in this case.” Id.
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reconsider its action, it should move the court to remand or to hold the case in abeyance
pending reconsideration by the agency.” Anchor Line Ltd. v. Fed. Mar. Comm’n, 299 F.2d
124, 125 (D.C. Cir. 1962).
The early case law recognized that the power of the courts to remand a
challenged agency action back to the agency for review was equitable in nature. See
Fleming v. FCC, 225 F.2d 523, 526 (D.C. Cir. 1955) (remanding licensing decision over the
objection of all parties to Federal Communications Commission based in part on “the
general equity powers which a court exercises in reviewing administrative action”);
Massachusetts Bay Telecasters, Inc. v. FCC, 261 F.2d 55, 67 (D.C. Cir. 1958) (noting that
remand is proper where “after-discovered circumstances, even without the fault of an
agency, may preclude a proper and just result”). In those early cases, courts remanded
a matter to an agency primarily so that it could consider an intervening change in the
facts or the effect of certain “new” facts which the agency previously had not
considered, in the first instance. See WORZ, Inc. v. FCC, 268 F.2d 889, 890 (D.C. Cir.
1959) (remanding matter “with instructions to hold . . . an evidential hearing to
determine the nature and source of all ex parte pleas and other approaches that were
made to Commissioners while the former proceeding was pending”); WKAT, Inc. v.
FCC, 258 F.2d 418, 419 (D.C. Cir. 1958) (agency moved to remand because, “since the
filing of these appeals, public charges have been made in the course of a Congressional
investigation that one of the Commissioners who participated in the proceedings before
the Commission, but who has since resigned, should have disqualified himself”);
Massachusetts Bay Telecasters, 261 F.2d at 67 (remanding and noting that the court
“should have the benefit of the Commission’s determination in such matters before
deciding ultimately what disposition should be made of this case”); Fleming, 225 F.2d at
526 (remanding matter to the FCC “to determine the effect of Mr. McNutt’s death,” an
intervening factual development with potentially significant ramifications on the
outcome of the decision). “In each case, the court granted the motion to remand.”
Voluntary Remands, 70 Admin. L. Rev. at 382.
In 1972, Congress first conferred the remand power on the Court of Claims — the
Federal Circuit’s (and this Court’s) predecessor — via “[t]he remand statute, Pub. L. 92-
415, 86 Stat. 652, now codified as part of 28 U.S.C. [§] 1491.” 8 United States v. Testan, 424
8 The Tucker Act, as amended, provides:
To provide an entire remedy and to complete the relief afforded by
the judgment, the court may, as an incident of and collateral to any
such judgment, issue orders directing restoration to office or
position, placement in appropriate duty or retirement status, and
correction of applicable records, and such orders may be issued to
any appropriate official of the United States. In any case within its
jurisdiction, the court shall have the power to remand appropriate
-8-
U.S. 392, 404 (1976). That statute authorized the issuance of “orders directing
restoration to . . . position, placement in appropriate duty . . . status, and correction of
applicable records” in order to complement the relief afforded by a money judgment,
and also to “remand appropriate matters to any administrative . . . body” in a case
“within [the court’s] jurisdiction.” 28 U.S.C. § 1491(a)(2). 9 In 1982, Congress created the
United States Claims Court by enacting the Federal Courts Improvement Act of 1982,
Pub. L. No. 97-164, 96 Stat. 25. Pursuant to that statute, the Claims Court assumed cases
originally filed in the United States Court of Claims. The Claims Court, however,
appears primarily to have remanded cases only after reaching the merits on a
dispositive motion and for the purposes of determining quantum or entering an order
to effectuate the relief the Claims Court had granted. See, e.g., Solar Turbines Int’l v.
United States, 3 Cl. Ct. 489, 500 (1983) (“Pursuant to the authority of 28 U.S.C.A. §
1491(a)(2) (West Supp. 1983), . . . this case is remanded to the ASBCA to determine the
amount due to plaintiff under . . . its contract with the United States.”); Towne Realty,
Inc. v. United States, 1 Cl. Ct. 264, 270 (1982) (“The case is remanded to the board for
further proceedings relevant to the determination of quantum.”).
During that same time period, as far as the Court can discern, there are only a
limited number of cases from this Circuit 10 that appear to have declined to remand a
matter. In Roflan Co. v. United States, No. 609-81C, 1982 WL 36666, at *1 (Ct. Cl. May 11,
1982), for example, the plaintiff (and not the government) moved “to remand [its] case
matters to any administrative or executive body or official with
such direction as it may deem proper and just.
28 U.S.C. § 1491(a)(2) (emphasis added). “The word ‘may,’ when used in a statute, usually
implies some degree of discretion.” United States v. Rodgers, 461 U.S. 677, 706 (1983); see DGR
Assocs., Inc. v. United States, 94 Fed. Cl. 189, 208 (2010) (citing Rodgers, 461 U.S. at 706). The
“shall” language in the statute only applies to the grant of the power itself, not the duty to
exercise that power. Accordingly, the statute suggests, and the caselaw confirms, that the Court
has discretion when deciding whether to remand particular matters at any stage. The statute
cannot be read to afford the Court less discretion before the entry judgment.
9Although not disputed by the parties, the legislative history suggests that at least one purpose
of the remand statute was to enhance this Court’s power to grant full relief in military pay
cases. See S. Rep. No. 92-1066, at 2 (1972), as reprinted in 1972 U.S.C.C.A.N. 3116, 3118 (“[T]he
present limits on the remedies available in the Court of Claims imposes unwarranted burdens
on the litigant . . . in cases involving military personnel. These generally are monetary claims
which are based on retirements in an improper status, such as failure to award disability
retirement pay or retirement in proper rank. Some of the cases are also based on an improper
dismissal from the service. In those cases, the Court of Claims can grant a monetary judgment
but cannot alter the serviceman’s military status. This bill would permit the court to grant such
military personnel relief collateral to and consistent with the judgment.”).
Congress renamed the Claims Court as the United States Court of Federal Claims in Pub. L.
10
No. 102–572, 106 Stat. 4506 (1992).
-9-
to the Armed Services Board of Contract Appeals (ASBCA) in order to enable plaintiff
to ask for a new hearing and decision on the basis of ‘after-discovered evidence.’” The
plaintiff filed the motion nearly two years after the administrative board issued its
decision and did not offer any reason as to why “the evidence could not have been
discovered by reasonable diligence long before it was, and in time to have been before
the ASBCA before it decided the claim.” Id. at *2. The United States Court of Claims
noted that it had remanded matters to agencies “in a wide variety of circumstances,”
but declined to remand the instant case because there was “not even an allegation that
the evidence could not have been found earlier by the exercise of due or reasonable
diligence or that such diligence was in fact exercised.” Id. In the court’s view “the
interests of justice mandate[d] that the finality of decisions be upheld” absent the “most
exceptional circumstances,” and the court accordingly denied the motion to remand. Id.
In Krzeminski v. United States, Judge Bruggink, in deciding a military pay claim,
wrote:
Although not requested by either party, the court has
considered the possibility of remand to the BCNR or to the
Secretary of the Navy (to convene an administrative
discharge board). . . . Based on the circumstances of this case,
the court does not believe that remand is appropriate. The
factual and procedural record is sufficient for the court to rule
and the respective positions are clearly articulated.
13 Cl. Ct. 430, 441 n.21 (1987). 11 Accordingly, the Claims Court reached the merits of the
plaintiff’s claims, granted summary judgment in plaintiff’s favor, and ordered the
Secretary of the Navy to correct the plaintiff’s military records. Id. at 441–42.
By the 1990s, federal courts across the country were granting voluntary remand
motions to allow agencies to reconsider legal conclusions, in addition to reconsidering
factual determinations. See, e.g., Lamprecht v. FCC, 958 F.2d 382, 385 (D.C. Cir. 1992)
(explaining that the court granted the agency’s motion for remand where “[t]he
Commission acknowledged that it[s] . . . policies [are] contrary to both the
Communications Act and the Constitution” and thereafter sought “comments on the
wisdom and effectiveness of its policies”). Throughout this period, courts continued
the practice of granting voluntary remand motions almost as a matter of course; the
D.C. Circuit succinctly summarized the trend in the law:
We commonly grant such motions, preferring to allow
agencies to cure their own mistakes rather than wasting the
11 As discussed infra, the Court reaches a similar conclusion in this case.
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courts’ and the parties’ resources reviewing a record that both
sides acknowledge to be incorrect or incomplete.
Ethyl Corp. v. Browner, 989 F.2d 522, 524 (D.C. Cir. 1993). Indeed, as far as the Court can
discern, there may have been as few as two cases in which a court denied a motion for
voluntary remand. In Miss. River Transmission Corp. v. Fed. Energy Regulatory Comm’n,
969 F.2d 1215, 1217 n.2 (D.C. Cir. 1992), the D.C. Circuit denied the government’s
motion — which the government filed two business days before oral argument — in a
footnote. The D.C. Circuit explained that its local rule — which required parties to
request leave to file potentially dispositive motions more than forty-five days after the
docketing of an appeal — precluded consideration of the government’s motion for
voluntary remand because the government “did not obtain, did not even request, leave
to file the motion.” Id. While the government’s failure to comply with the court’s local
rule was reason enough to deny the motion, the D.C. Circuit notably commented on a
distinct, “serious defect” in the government’s motion: “No one reading th[e] motion
could tell what [the government] had in mind or what it intended to do with the case if
it were returned.” Id. (emphasis added). The D.C. Circuit explained that “[o]nly at oral
argument, after considerable prodding from the bench, did [the government] reveal
what it had in mind,” and, while the court did not further detail the government’s
request, the court “express[ed] . . . extreme displeasure over [the government’s] tactics
and its disregard of the governing rules.” Id.
In Lutheran Church-Mo. Synod v. FCC, 141 F.3d 344, 348 (D.C. Cir. 1998), the
government filed a motion for voluntary remand “[a]lmost two months after” the court
heard oral argument on the merits of the appeal. The government requested a remand
based on “a recently released ‘policy statement,’” but “could make no representations to
the court concerning what sort of order might be adopted in the future.” Id. at 348-49.
Before addressing the merits, the D.C. Circuit analyzed the government’s “novel, last
second motion to remand.” Id. at 349. The D.C. Circuit explained:
We simply do not understand, as a matter of administrative
law, how we could consider a post-argument “policy
statement,” which, as [the FCC] Commissioner [] correctly
pointed out, does not bind the Commission to a result in any
particular case.
Id. In the court’s view, the government’s remand motion was a “ploy” merely “to avoid
judicial review,” and the court denied the motion accordingly. Id.
While this body of case law provided courts with some useful quotations and
relevant considerations when ruling on a motion for a voluntary remand, the law
lacked “a clear doctrinal test” or some semblance of rules until the Federal Circuit’s
decision in SKF USA. Voluntary Remands, 70 Admin. L. Rev. at 385.
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B. SKF USA And Its Progeny
In SKF USA, the Federal Circuit addressed the putative “obligation of a court to
remand a case to an administrative agency upon the agency’s change in policy or
statutory interpretation.” 254 F.3d at 1025 (emphasis added). The case, however, is
most often cited for its “comprehensive typology of litigation positions an agency might
take when its policy is challenged,” three of which are voluntary remand situations.
Voluntary Remands, 70 Admin. L. Rev. at 386.
In SKF USA, a company that manufactured and imported antifriction bearings
from Germany challenged a Department of Commerce determination – in a proceeding
before that agency – that the company’s loss incurred on the sale of its Korean
subsidiary should be included in the company’s general and administrative (“G&A”)
expense calculation. 254 F.3d at 1025–26. On appeal before the Court of International
Trade (“CIT”), the company again argued “that the loss related to the Korean sale
should not be included in the G & A expense calculation.” Id. at 1026. Rather than
defend the agency’s determination at the CIT, the agency “agree[d] that this loss should
not be included in [the company’s] G & A ratio” and requested a remand to voluntarily
reverse its decision. Id. The CIT held that it could not “rely on the post-hoc position
advanced by Commerce in its brief as the basis to uphold or overturn its administrative
action.” Id. at 1027 (quoting SKF USA Inc. v. United States, 77 F. Supp. 2d 1335, 1345 n.3
(Ct. Int’l Trade 1999)). The company appealed to the Federal Circuit.
On appeal, the Federal Circuit sought “to place the issue presented here in
context,” explaining “that when an agency action is reviewed by the courts, in general
the agency may take one of five positions.” Id. at 1027–28. The first two situations — in
which (1) “the agency defends its decision on the grounds articulated by the agency” or
(2) “the agency seeks to defend its decision on grounds not previously articulated by
the agency” — by definition are not voluntary remand situations. Id. at 1028.
In the third situation, the Federal Circuit explained that “the agency may seek a
remand because of intervening events outside of the agency’s control, for example, a
new legal decision or the passage of new legislation.” Id. In that situation, “[a] remand
is generally required if the intervening event may affect the validity of the agency
action.” Id.
As to the fourth situation, the Federal Circuit noted that “even if there are no
intervening events, the agency may request a remand (without confessing error) in
order to reconsider its previous position.” Id. at 1029. In that situation, “the reviewing
court has discretion over whether to remand.” Id. The Federal Circuit instructed that
“a remand is usually appropriate” when the “agency’s concern is substantial and
legitimate,” but that “[a] remand may be refused if the agency’s request is frivolous or
in bad faith.” Id. The decision understandably does not expound on these standards
further because the government’s request in SKF USA fell into the fifth situation.
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Finally, in the fifth situation, the Federal Circuit held that “the agency may
request a remand because it believes that its original decision is incorrect on the merits
and wishes to change the result.” Id. Under such circumstances, a “[r]emand to an
agency is generally appropriate to correct simple errors,” but requires a more complex
analysis when the motion is “associated with a change in agency policy or
interpretation.” Id. When that occurs, the Federal Circuit clarified that the Supreme
Court’s decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837 (1984), impacts the analysis. Id. In particular, when reviewing an agency’s
construction of a statute that it administers, Chevron requires courts to first determine
“whether Congress has directly spoken to the precise question at issue.” Id. at 1027
(quoting Chevron, 467 U.S. at 842). Thus, the Federal Circuit held that when there is “a
step one Chevron issue — that is, an issue as to whether the agency is either compelled
or forbidden by the governing statute to reach a different result — a reviewing court
again has considerable discretion” in deciding whether to remand; the court “may
decide the statutory issue, or it may order a remand” to conserve judicial resources. Id.
at 1029. “Where there is no step one Chevron issue, . . . a remand to the agency is
required, absent the most unusual circumstances verging on bad faith.” Id. at 1029–30.
The Federal Circuit justified its bright line holding because, where there is no step one
Chevron issue, agencies are entitled to formulate policy and make rules “to fill any gap
left, implicitly or explicitly, by Congress” and that “discretion to reconsider policies
does not end once the agency action is appealed.” Id. at 1030 (internal quotations
omitted).
The Federal Circuit in SKF USA thus held that the government’s motion for
voluntary remand fell into the fifth situation and that “remand [was] required.” Id.
Accordingly, the Federal Circuit reversed the CIT’s decision, which had denied the
agency’s request. Id.
SKF USA is by far the leading authority on the law of voluntary remands. The
Third, Fourth, Sixth, Seventh, Ninth, and D.C. Circuits explicitly have followed or have
cited the decision with approval. See Ildefonso-Candelario v. Attorney Gen., 866 F.3d 102,
106 (3d Cir. 2017); Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 215 (4th Cir.
2009); Citizens Against Pellissippi Parkway Extension, Inc. v. Mineta, 375 F.3d 412, 417 (6th
Cir. 2004); Ren v. Gonzales, 440 F.3d 446, 448 (7th Cir. 2006); California Cmtys. Against
Toxics v. E.P.A., 688 F.3d 989, 992 (9th Cir. 2012); Limnia, Inc. v. United States Dep’t of
Energy, 857 F.3d 379, 387 (D.C. Cir. 2017). While SKF USA “explained in careful dictum
[when a] voluntary remand is appropriate,” Citizens Against Pellissippi Parkway
Extension, 375 F.3d at 417, the majority of courts apparently have read the decision as
solidifying in the law “the presumption in favor of voluntary remands.” Voluntary
Remands, 70 Admin. L. Rev. at 388 (citing cases). Indeed, only a handful of cases
following the Federal Circuit’s rationale in SKF USA have denied a motion for
voluntary remand. Id. at 388 n.184 (citing Citizens Against Casino Gambling in Erie Cty. v.
Hogen, No. 07-CV-0451S, 2008 WL 4057101, at *10 (W.D.N.Y. Aug. 26, 2008), Assiniboine
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& Sioux Tribes of Fort Peck Indian Reservation v. Norton, 527 F. Supp. 2d 130, 136 (D.D.C.
2007), and Limnia, Inc., 857 F.3d at 387)); see Da Silva v. Attorney Gen., 948 F.3d 629, 634
(3d Cir. 2020); Ildefonso-Candelario, 866 F.3d at 106–07; Borrome v. Attorney Gen., 687 F.3d
150, 156 n.4 (3d Cir. 2012).
Limnia, Inc., one of the few post-SKF USA cases in which a court denied a
voluntary remand motion, merits the Court’s attention here. 857 F.3d at 388. In Limnia,
then-Judge Kavanaugh, writing for a unanimous panel, reversed the order of the
district court granting the government’s motion for a voluntary remand. Id. Limnia,
Inc. (“Limnia”), the petitioner, developed battery systems for use in electric cars and
applied to the Department of Energy (“DOE”) for loans under two loan programs. Id. at
382. The DOE denied Limnia’s applications, and Limnia challenged the agency action
in district court under the Administrative Procedure Act. Id. The government moved
to dismiss, and, after the district court denied that motion, the government moved for a
voluntary remand “to allow Limnia to submit new applications that could be updated
to account for any new and relevant information in support of those applications.” Id.
(internal quotations omitted). The government “noted that a voluntary remand would
afford Limnia the opportunity to reapply to the loan programs — albeit after paying the
required application fee for the Loan Guarantee Program application — and update its
loan applications with any new information about its project.” Id. at 382–83 (internal
quotations omitted). The district court, over Limnia’s objection, granted the
government’s motion and, after further litigation, entered a final, appealable order
relinquishing jurisdiction and remanding the matter to DOE, which Limnia then
appealed. Id. at 383–84.
The D.C. Circuit noted that a court may only grant a motion for voluntary
remand “when the agency intends to take further action with respect to the original
agency decision on review.” Id. at 386 (emphasis in original). The D.C. Circuit explained
further:
That is not to say that an agency need confess error or
impropriety in order to obtain a voluntary remand. But the
agency ordinarily does at least need to profess intention to
reconsider, re-review, or modify the original agency decision
that is the subject of the legal challenge.
Id. at 387. In Limnia, the government did not request a remand “in order to reconsider
Limnia’s 2009 applications,” but instead only “offered to review any new applications
Limnia chose to submit, assuming that Limnia remitted the then-required application
fees.” Id. As a result, the D.C. Circuit held that the “voluntary remand order was a
‘remand’ in name only” and acted as a dismissal on the merits. Id. at 388. Accordingly,
the D.C. Circuit reversed.
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The United States District Court for the District of Columbia has, at least in one
case, applied the D.C. Circuit’s guidance in Limnia, 857 F.3d 379, to deny a government
motion for voluntary remand. See Am. Waterways Operators v. Wheeler, 427 F. Supp. 3d
95 (D.D.C. 2019). In Am. Waterways Operators, a trade association challenged an
Environmental Protection Agency (“EPA”) decision regarding whether “adequate
pump-out facilities were reasonably available” along the Puget Sound such that the
State of Washington could establish a “no-discharge zone” in the area. 427 F. Supp. 3d
at 96. The trade association argued that EPA erred by not considering compliance costs
before making its determination. Id. at 97. EPA moved for a voluntary remand “so that
it c[ould] consider costs in the underlying analysis and decide[ ] whether to revise or to
leave in place the challenged action in light of this analysis.” Id. (internal quotations
omitted). The district court denied the government’s motion and expounded on the
analytical framework that the D.C. Circuit employed in Limnia. Id.
In particular, the district court interpreted the D.C. Circuit’s guidance in Limnia,
857 F.3d at 387 — that an “agency ordinarily does at least need to profess intention to
reconsider, re-review, or modify the original agency decision” — as “a necessary
condition to obtain remand.” Am. Waterways Operators, 427 F. Supp. 3d at 98. The
district court, however, held that while necessary, the condition is “not always a
sufficient condition” and that a court must also “consider whether remand would
unduly prejudice the non-moving party and whether the agency’s request appears to be
frivolous or made in bad faith.” Id. at 99 (internal quotations omitted). In the district
court’s view, “[t]he only ‘new’ thing before EPA is Plaintiff’s Complaint, but EPA has
identified nothing in that document that it was unaware of when it issued its decision in
2017.” Id. at 98. Accordingly, the district court denied EPA “a second bite at the apple”
after finding that the proposed remand would unduly prejudice the trade association as
well as other non-parties. Id. at 98–99.
The case law thus makes clear that where an agency requests a remand without
confessing error, the agency must express some intent to reconsider the original agency
decision that is the subject of the legal challenge, after which the court has discretion to
grant or deny the motion. Where the agency’s request is “substantial and legitimate,” a
court ordinarily should grant the motion; alternatively, where the agency’s request is in
bad faith or frivolous, a court should deny the motion. See SKF USA, 254 F.3d at 1028.
In between those relative extremes, the case law demonstrates that the trial court has
substantial discretion depending on the timing of the government’s motion, its
representations regarding the reasons for a remand, the plaintiff’s factual allegations
viewed through the prism of the particular legal issues involved, and the overall fitness
and completeness of the administrative record available for the Court’s review. See, e.g.,
Limnia, Inc., 857 F.3d at 386–87; Miss. River Transmission Corp., 969 F.2d at 1217 n.2; Am.
Waterways Operators, 427 F. Supp. 3d at 98–99. In this case, as demonstrated in more
detail below, those factors justify denying the government’s motion. Krzeminski, 13 Cl.
Ct. at 441 n.21.
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C. The Government’s Motion Is Denied
The Court exercises its discretion in this matter to deny the government’s motion
for voluntary remand. The Court recognizes that the “comprehensive typology of
litigation positions” 12 described in SKF USA was “careful dictum[,]” Citizens Against
Pellissippi Parkway Extension, 375 F.3d at 417, and the Court follows SKF USA here.
Nonetheless, the Court begins its analysis by determining which of the five SKF USA
situations the government’s motion presents in this case.
In this case, the government moved for a voluntary remand and therefore does
not defend the agency’s decision at this stage in the litigation. Accordingly, the
government’s motion does not implicate the first two SKF USA categories — (1) “in
which the agency defends its decision on the grounds articulated by the agency” and (2)
“in which the agency seeks to defend its decision on grounds not previously articulated
by the agency” — neither of which are voluntary remand situations. SKF USA, 254 F.3d
at 1028.
The government’s motion also does not implicate the third SKF USA situation, in
which an agency seeks “a remand because of intervening events outside of the agency’s
control, for example, a new legal decision or the passage of new legislation.” Id. The
plaintiff argues that “no intervening events outside of the agency’s control have
occurred — no new legal decisions have been rendered; no new legislation has been
enacted; and no new facts have come to light following the AFBCMR’s decision.” Pl.
Resp. at 7. The government does not contest this point. Transcript of Oral Argument
(“Tr.”) at 13:2-4 (“So we have taken a look at this case and reviewed the record, and we
think we would prevail on the merits were we to move forward.”); id. at 24:22-25:1
(“THE COURT: I’m saying do we need the remand at all to further develop the record
in terms of documents that are missing? MR. MCADAMS: So from the military side,
[y]our Honor, we do not believe so.”).
Similarly, the government’s motion does not implicate the fifth SKF USA
situation, in which an agency seeks “a remand because it believes that its original
decision is incorrect on the merits and wishes to change the result.” 254 F.3d at 1029.
Indeed, the government strenuously (and somewhat troublingly) argues the opposite
here, seeking a remand “so that the AFBCMR can expound upon its rationale for
denying plaintiff’s request.” Def. Mot. at 1; see id. at 4 (“The AFBCMR will issue a new
opinion in which it shall expound upon its reasons for adopting the rationale of the
AFRC/SGO over the opinion of the AFBCMR’s psychiatric consultant in deciding to
deny plaintiff’s request.”); Tr. at 13:2-4 (“So we have taken a look at this case and
reviewed the record, and we think we would prevail on the merits were we to move
forward”); id. at 13:19-22 (“[W]e think that we would prevail on the merits if we were to
defend this case. So it’s not a concern with the decision of the Board.”). In sum, the
12 Voluntary Remands, 70 Admin. L. Rev. at 386.
-16-
Court cannot shake the impression that the government simply wants an opportunity to
improve either the reasoning the agency articulated for its decision or the record on
which that decision was based. Borrome, 687 F.3d at 156 n.4 (denying government’s
motion for voluntary remand where the government had argued before an agency
appeal board that “the result reached in the decision under review is correct . . . and
that the issues on appeal are squarely controlled by existing precedent and do not
involve the application of precedent to . . . novel facts” and the government gave “no
good reason why the [agency appeal board] should have a second chance to consider
the [same] issues raised on th[e] appeal” to the court).
Instead, the government’s motion quite clearly quite clearly falls into the fourth
SKF USA category, in which “there are no intervening events [and] the agency [seeks] a
remand (without confessing error) in order to reconsider its previous position.” SKF
USA, 254 F.3d at 1029; see Def. Mot. at 3 (admitting no “error by the United States, the
USAFR, or the AFBCMR” and citing SKF USA for the proposition that “even if there are
no intervening events, the agency may request a remand (without confessing error) in
order to reconsider its previous position”). In such a situation, the Federal Circuit has
ruled that “the reviewing court has discretion over whether to remand.” SKF USA, 254
F.3d at 1029. The Federal Circuit further explained that “a remand is usually
appropriate” when the “agency’s concern is substantial and legitimate,” but that “[a]
remand may be refused if the agency’s request is frivolous or in bad faith.” Id.
Accordingly, the Court next analyzes whether the government’s motion presents a
“substantial and legitimate” concern that would make a remand “appropriate.” Id.
The Federal Circuit did not define the term “substantial and legitimate” in SKF
USA, nor has the Court found any controlling law defining this phrase in relation to a
voluntary remand request. The CIT, however, has developed a test, which the Court
finds persuasive here:
This Court has found that [an agency’s] concerns are
substantial and legitimate where 1) “[the agency] provided a
compelling justification for its remand request,” 2) “the need
for finality . . . does not outweigh the justification for
voluntary remand presented by [the agency],” and 3) the
“scope of [the agency’s] remand request is appropriate.”
Ad Hoc Shrimp Trade Action Comm. v. United States, 882 F. Supp. 2d 1377, 1381 (Ct. Int’l
Trade 2013) (quoting Shakeproof Assembly Components Div. of Ill. Tool Works, Inc. v. United
States, 412 F. Supp. 2d 1330, 1336–39 (Ct. Int’l Trade 2005)). This test also is consistent
with the other factors the Court noted supra, including the consideration of the
government’s representations regarding the reasons for a remand, the plaintiff’s factual
allegations viewed through the prism of the particular legal issues involved, and the
overall fitness and completeness of the administrative record available for the Court’s
review.
-17-
In applying the CIT’s test, the Court begins with the government’s proffered
reasons for requesting a remand here. The government requests a remand to the
AFBCMR primarily “so that the AFBCMR can expound upon its rationale for denying
plaintiff’s request.” Def. Mot. at 1. The government further elaborated on that
justification by arguing that “a new opinion from the AFBCMR with a comprehensive
discussion of the reasons behind the AFBCMR’s adoption of the AFRC/SGO’s analysis
and conclusion will further the interests of justice by best facilitating the Court’s review
of plaintiff’s challenge to the AFBCMR’s decision denying his petition.” Def. Mot. at 4.
To put a fine point on the matter, the Court rejects the government’s asserted
rationale and instead concludes that the government does not wish to “reconsider” the
original decision at all. Rather, the government seeks a remand simply so that the
AFBCMR can bolster its reasons for denying Mr. Keltner’s claim, presumably so that the
AFBCMR’s decision would then have a higher chance of withstanding subsequent
judicial scrutiny. That proffered justification for remand is no justification at all.
Moreover, the government does not argue that the record is insufficient, or that
this Court would have any difficulty deciding the merits of Mr. Keltner’s claim on the
administrative record as it currently exists. Tr. at 13:2-4 (government counsel arguing
that a remand is not necessary to further develop the record). Indeed, the government
argues that the Court’s review of the record, as it currently exists, can only result in the
Court denying Mr. Keltner relief. Id. at 13:19-22 (“[W]e think that we would prevail on
the merits if we were to defend this case. So it’s not a concern with the decision of the
Board.”).
Accordingly, despite the government’s assertion, a remand would not “further
the interests of justice,” but would delay this case further and serve to only potentially
improve the government’s litigation posture. See Fla. Power & Light Co. v. Lorion, 470
U.S. 729, 744 (1985) (“If the record before the agency does not support the agency action,
if the agency has not considered all relevant factors, or if the reviewing court simply
cannot evaluate the challenged agency action on the basis of the record before it, the
proper course, except in rare circumstances, is to remand to the agency for additional
investigation or explanation.”).
The government has not pointed to any case — and this Court has found none —
in which a court has granted a motion for voluntary remand when the government’s
primary goal on remand is to write a better decision for a predetermined outcome. See
Borrome, 687 F.3d at 156 n.4. Indeed, the fourth SKF USA situation, in which “there are
no intervening events [and] the agency [seeks] a remand (without confessing error)”
only exists when the government seeks a remand “in order to reconsider its previous
position.” SKF USA, 254 F.3d at 1029 (emphasis added); see Am. Waterways Operators,
427 F. Supp. 3d at 98 (“An agency's professed intent to revisit the challenged decision is
a necessary condition to obtain remand . . . “). Because the government has not
-18-
explained how or why the AFBCMR would reconsider its decision, there is a complete
absence of a “substantial and legitimate” reason to order a remand.
D.C. Circuit precedent also weighs against the government’s motion here. See
Limnia, 857 F.3d at 387. This Court heeds then-Judge Kavanaugh’s words:
That is not to say that an agency need confess error or
impropriety in order to obtain a voluntary remand. But the
agency ordinarily does at least need to profess intention to
reconsider, re-review, or modify the original agency decision
that is the subject of the legal challenge.
Id. A court would be hard-pressed to find an agency’s justification ”substantial and
legitimate” where, as here, an agency does not profess any intention to reconsider the
underlying administrative decision and, instead, explicitly represents that it has all but
already prejudged the merits of the plaintiff’s claim. The Court does not find the
government’s justification reasonable – let alone “compelling” – in this case, Ad Hoc
Shrimp, 882 F. Supp. 2d at 1381, and declines to exercise discretion to remand the case to
the AFBCMR.
Further still, the need for finality in this matter clearly outweighs the
government’s justification for requesting a voluntary remand. The Supreme Court has
explained that, with respect to agency action, an “agency must examine the relevant
data and articulate a satisfactory explanation for its action including a rational
connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n of
U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (internal quotation
omitted). When an agency fails to comply with this minimum standard for agency
action in the first instance — but the record is otherwise complete and permits judicial
review — a party may seek judicial review and a court may order appropriate relief.
See Fla. Power & Light Co., 470 U.S. at 744; cf. Axiom Res. Mgmt., Inc. v. United States, 564
F.3d 1374, 1379 (Fed. Cir. 2009) (“[T]he focal point for judicial review should be the
administrative record already in existence, not some new record made initially in the
reviewing court.” (quoting Camp v. Pitts, 411 U.S. 138, 142 (1973))). If the AFBCMR did
not satisfy this minimum standard in the first instance, the Court sees no reason to
afford the AFBCMR a “second bite at the apple” without first reaching the merits of
Mr. Keltner’s claim. See Am. Waterways Operators, 427 F. Supp. 3d at 98, 100 (denying
agency a “second bite at the apple” where agency sought to revisit an “otherwise final
decision based solely on its new-found desire” to purportedly “reconsider” certain
factors that the agency had already considered in rendering its first decision years prior
to the litigation).
Were this Court to hold differently, the government could always seek a
voluntary remand following a fully briefed motion for judgment on the administrative
record and oral argument, thereby seeking to avoid a loss on the merits (particularly
-19-
given that there appears to be no constraint on precisely when the government may
request such a remand). And, according to the government’s implicit view here, the
courts would then be bound to grant those motions, perhaps repeatedly — and without
regard to the interests of finality — until the agency had carefully crafted its decision to
avoid a party’s legal arguments and potentially withstand judicial review. The Court
declines to adopt the government’s position in this case, particularly where the
government itself believes that the record is sufficiently ripe for judicial review. See
Bennett v. Murphy, No. CV 14-10275-FDS, 2016 WL 1449571, at *1 (D. Mass. Apr. 13,
2016) (“Voluntary remands are commonly granted because they allow agencies to
correct their own mistakes without expending the resources of the court in reviewing a
record that is admittedly incomplete or incorrect.” (emphasis added) (citing Ethyl Corp., 989
F.2d at 524)).
The Court also holds that the scope of the government’s remand request is
problematic in this case. As indicated above, the Court takes issue with the
government’s request to order the AFBCMR to “expound upon its rationale for denying
plaintiff’s request.” Def. Mot. at 1. RCFC 52.2(b)(1)(A) requires remand orders to
contain directions that the Court deems “proper and just.” Requiring Mr. Keltner to
wait an additional six months 13 for the AFBCMR to issue another decision reaching the
exact same result on the claims that he originally brought over five years ago is neither
proper nor just. See Clark v. Perdue, No. CV 19-394, 2019 WL 2476614, at *3 (D.D.C. June
13, 2019) (noting that plaintiff’s contention of undue prejudice “carries weight here
where she has indeed waited over seven times as long as the law contemplates to have
USDA consider her claims”).
Because (1) the government has not provided a reasonable justification,
“compelling” or otherwise, (2) the interests of finality outweigh the government’s
justification, and (3) the scope of the government’s remand request is not “appropriate,”
Ad Hoc Shrimp, 882 F. Supp. 2d at 1381, the Court declines to exercise its discretion to
order a remand here. See SKF USA, 254 F.3d at 1029.
As there is a great deal of space on the discretion continuum between whether a
remand request is “substantial and legitimate” or is “in bad faith or frivolous,” the
Court need not decide where on that spectrum the request at issue lies. In denying the
government’s motion here, the Court does not question the motives of the
13The government requested that the Court stay the proceedings for “180 days” to allow the
AFBCMR to issue a new decision. Def. Mot. at 4. RCFC 52.2(b)(1)(B) provides that the
“duration of the remand” may not “exceed 6 months.” Critically, however, “[u]nder RCFC 52.2,
six months is the maximum duration for a remand, not some baseline or default period.”
Holmes, 142 Fed. Cl. at 794 (emphasis added). The government thus seeks the maximum length
of time here, without any acknowledgement that Mr. Keltner’s Complaint has been pending for
six months or that Mr. Keltner filed his appeal with the AFBCMR approximately five years
prior to the date the government filed its motion.
-20-
government’s counsel or agency officials. Rather, the point is simply that, in the total
absence of any meaningful justification for a remand — and the attendant further delay
that would result — the remand request is quite difficult to fathom.
To the extent that Plaintiff has expressed concerns about the government’s
litigation tactics, 14 however, the Court is not entirely unsympathetic, considering the
government’s supplemental brief in support of its remand request, see ECF No. 18. The
Court struck that brief as nonresponsive and in violation of this Court’s March 11, 2020
Order, prohibiting new arguments. See ECF No. 19; see also supra n. 5. In that
supplemental brief, the government raised for the first time a new argument that
Mr. Keltner allegedly had waived his right to the relief that he now seeks either by (1)
not raising the issue to the AFBCMR in the first instance, or (2) not attending a formal
Physical Evaluation Board assessment. See ECF No. 18. 15 But, given that argument,
what is the purpose of the remand? Presumably, the agency would present the waiver
argument to the AFBCMR. It is not as if the government here agreed not to assert
waiver if the plaintiff accepted a remand. See Tr. at 19:23–20:4 (“THE COURT: And if
we were to . . . grant the Government’s motion for voluntary remand, does the
Government commit here that it will not argue [‘]waiver[‘] before the Board, that the
Board will be counseled not to invoke [‘]waiver[‘]? MR. MCADAMS: We . . . don’t
think that that would be necessary[.]”). The government’s approach in this regard is
similar to that which the D.C. Circuit criticized in Miss. River Transmission Corp., 969
F.2d at 1217 n.2 (expressing “extreme displeasure over [the government’s] tactics”
where “[o]nly at oral argument, after considerable prodding from the bench, did [the
government] reveal what it had in mind” for its proposed remand).
The government’s voluntary remand request is problematic in at least three
additional respects. First, as far as this Court understands the gravamen of
Mr. Keltner’s Complaint, a remand would serve no practical purpose. In originally
deciding Mr. Keltner’s claim, the AFBCMR solicited two advisory opinions that
analyzed whether Mr. Keltner incurred his disability in the line of duty. Compl. ¶ 29.
According to the Complaint, one advisory opinion applied AFI 36-2910 (Dr. Chernyak’s
opinion) — the Air Force standard for determining whether a warfighter incurred a
disability in the line of duty — and concluded that Mr. Keltner incurred his disability in
the line of duty. Compl. ¶ 32. The other advisory opinion allegedly failed to apply AFI
36-2910 and concluded that Mr. Keltner’s disability did not arise in the line of duty.
Compl. ¶ 33. The AFBCMR adopted both the rationale and conclusion of the second
advisory opinion and denied Mr. Keltner’s claim based solely on that advisory opinion.
14See Pl. Resp. at 6 (arguing the government’s remand motion “is a pretext to evade judicial
review”).
15Again, this argument was less than clear, mainly because the government attempted to
squeeze into a three-page supplemental briefing an argument that would best be suited for a
motion to dismiss or a motion for judgment on the administrative record.
-21-
Compl. ¶ 36. Accordingly, if the advisory opinion that the AFBCMR relied on did not
apply the correct standard in evaluating Mr. Keltner’s disability, no amount of
additional explanation likely would save the AFBCMR’s wholesale adoption of that
opinion. If, instead, that advisory opinion applied the correct standard and was
supported by substantial evidence, then no new justification will be necessary in order
for the Court itself to deny Mr. Keltner’s claims. Thus, a remand would serve no
purpose in the ultimate resolution of this case. See Limnia, 857 F.3d at 388 (holding that
district court erred in issuing voluntary remand order which “was a ‘remand’ in name
only” because the plaintiff’s “position was the same as if its case had been dismissed on
the merits”).
A second reason for rejecting the government’s remand request here is the
government’s stark admission that the AFBCMR has all but prejudged the case. See id.
at 387 (“But the agency ordinarily does at least need to profess intention to reconsider,
re-review, or modify the original agency decision that is the subject of the legal
challenge.”); cf. A.L. Pharma, Inc. v. Shalala, 62 F.3d 1484, 1489 (D.C. Cir. 1995) (“We do
not remand where ‘[t]here is not the slightest uncertainty as to the outcome of a[n]
[agency] proceeding . . . ” (quoting NLRB v. Wyman–Gordon Co., 394 U.S. 759, 766–67 n.6,
(1969))). The Court need not adopt the per se rule that the D.C. Circuit apparently has
approved that would preclude a remand where the outcome is certain, but where, as
here, the record is complete and the government seeks a remand “so that the AFBCMR
can expound upon its rationale for denying plaintiff’s request,” Def. Mot. at 1, a remand
would be improper. This Court will not delay this matter further and either unfairly
give the government the opportunity to restart the clock in order to bolster its defense
with a post-hoc rationalization, or force Mr. Keltner to file a new or amended complaint
in this Court in six months’ time.
Finally, the Court exercises its discretion to deny the remand motion, particularly
given that the plaintiff is a combat veteran. See Dieffenbacher v. DeVos, No. 17-CV-342,
2017 WL 4786096, at *3 (C.D. Cal. June 9, 2017) (criticizing remand request as an
“attempt to evade judicial review” and thereby avoid “a conclusive ruling”). To be
crystal clear, the Court is not suggesting that Mr. Keltner should prevail here because of
his status — or even that he is entitled to any special treatment whatsoever — but he is
at least entitled to have his claims heard on the merits by this Court without the
government’s interposing any further delay.
As previously noted, the Court has substantial discretion to deny a motion for
voluntary remand depending on the timing of the government’s motion, its
representations regarding the reasons for a remand, and the plaintiff’s factual
allegations viewed through the prism of the particular legal issues involved. Each of
these factors weighs in favor of denying the government’s motion in this case.
-22-
CONCLUSION
For all the above reasons, the Court DENIES the government’s motion for
voluntary remand. On or before June 26, 2020, the parties shall file a joint status report,
proposing a schedule for further proceedings in this case.
It is so ORDERED.
s/Matthew H. Solomson
Matthew H. Solomson
Judge
-23- | 01-03-2023 | 06-04-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/8540622/ | per curiam:
Hoy ejercemos nuestra jurisdicción discipli-naria sobre un notario que dio fe sobre hechos que le cons-taban como falsos. También debemos determinar si un abo-gado incurre en una violación al Canon 38 del Código de Ética Profesional, infra, al enviar una carta al quejoso me-diante la cual le avisó de su intención de presentar una demanda de daños y perjuicios presuntamente causados por su queja. Antes de evaluar las controversias plantea-das, veamos los hechos que generaron ambas acciones.
*1071I
El Ledo. Miguel Ángel Ojeda Martínez (en adelante li-cenciado Ojeda Martínez o querellado) fue admitido al ejer-cicio de la abogacía el 25 de enero de 1985 y prestó jura-mento como notario el 1 de julio de 1985.
El 11 de agosto de 2005 el Sr. Luis Raúl Delgado Mercado (en adelante quejoso) presentó una queja contra el licenciado Ojeda Martínez.(1) El 25 de octubre de 2005, la Secretaria de este Tribunal, cumpliendo con la Regla 14(d) de nuestro Reglamento, 4 L.RR.A. Ap. XXI-A, refirió a la Oficina de Inspección de Notarías (en adelante ODIN) co-pia del expediente de la queja de referencia para la inves-tigación y el informe correspondientes. Procedemos a rela-tar en detalle los acontecimientos que motivaron la Querella, según surgen del Informe del Comisionado Especial, del Informe de ODIN y del expediente sobre la gestión profesional del licenciado Ojeda Martínez.
Surge del Informe de ODIN que para la fecha del otor-gamiento de la Escritura Núm. 24 de 22 de mayo de 1989 (en adelante Escritura Núm. 24), los dueños regístrales del inmueble en cuestión eran el padre y la madre del quejoso. El licenciado Ojeda Martínez autorizó la Escritura Núm. 24, sobre Donación y Acta de Comprobación de Edificación Nueva. Mediante la referida Escritura, los dueños regís-trales del inmueble en cuestión donaron su derecho propie-tario a Lisandra Delgado Mercado —hija de los donantes y hermana del quejoso— y a su esposo, Braulio Collazo Tosca. Esta donación fue revertida posteriormente me-diante la Escritura Núm. 71 de 22 de septiembre de 1990 *1072(en adelante Escritura Núm. 71), autorizada por el notario aquí querellado. En esta última instancia comparecieron como donantes la hermana del quejoso y su esposo; como donatarios, comparecieron el padre y la madre del quejoso.
Por su parte, ODIN concluyó que el querellado autorizó un contrato simulado mediante la referida Escritura Núm. 24. Específicamente, según las alegaciones del licenciado Ojeda Martínez, ODIN concluyó que el querellado autorizó una Escritura de Donación con conocimiento de que los comparecientes deseaban realizar la compraventa de la propiedad a favor de la hermana del quejoso y su esposo. En consecuencia, ODIN imputó al licenciado Ojeda Martí-nez una violación al Canon 35 del Código de Etica Profe-sional, 4 L.P.R.A. Ap. IX. ODIN también concluyó que el licenciado Ojeda Martínez incurrió en una conducta alta-mente impropia en contravención al Canon 38 del Código de Etica Profesional, 4 L.P.R.A. Ap. IX. Basó su determina-ción en que, dentro del trámite de la presente Queja,(2) el querellado cursó una carta al quejoso en la cual le notificó la posibilidad de instar una demanda por daños y perjui-cios supuestamente causados por el quejoso, a raíz de la presentación de la queja de autos.
Por otro lado, según relató el licenciado Ojeda Martínez en su réplica a la queja presentada, el quejoso solicitó sus servicios legales durante 1989. Adujo el licenciado Ojeda Martínez que el quejoso le informó que interesaba obtener el dinero correspondiente a sus derechos que, según él, te-nía sobre la segunda planta de una casa que pertenecía a sus padres. El quejoso alegó que la segunda planta le per-tenecía, pues, según él, fue construida con su patrimonio. Por su parte, la hermana del quejoso, junto a su esposo, interesaba comprar la propiedad y solicitar un préstamo hipotecario. De esta forma, los padres y dueños de la pro-piedad acordaron vender la propiedad a su hija y pagar al quejoso el dinero que reclamaba. A su vez, el quejoso in-*1073formó al notario que la propiedad se utilizaría como garan-tía hipotecaria y “que era necesario que estuviera regis-trada a nombre de su hermana y su cuñado para gestionar el préstamo”.!3)
Así las cosas, el licenciado Ojeda Martínez informó al quejoso “que si todas las partes estaban de acuerdo, la única manera de poder realizar dicha transacción válida-mente era por vía de donación”.!(4) Posteriormente, el que-rellado autorizó la Escritura Núm. 24, sobre Donación y Acta de Comprobación de Edificación Nueva. Sin embargo, aunque la hermana y el cuñado del quejoso comenzaron a gestionar el préstamo hipotecario, el quejoso informó al li-cenciado Ojeda Martínez que el préstamo no fue otorgado. Por esta razón, el querellado aconsejó al quejoso y a su familia “revertir ... título de la propiedad a nombre de sus padres vía donación [,] tal y como se había hecho en un principio”.!5) Así, el 22 de septiembre de 1990 el querellado autorizó la Escritura Núm. 71, mediante la cual Lisandra Delgado Mercado y su esposo —donatarios en la Escritura Núm. 24— comparecieron como donantes y sus padres como donatarios. Esta Escritura se inscribió en el Registro de la Propiedad.
El 31 de mayo de 2011, luego de examinar el Informe de ODIN, ordenamos a la Procuradora General que presen-tara la correspondiente querella. En esta imputó violacio-nes a los Cánones 35 y 38 del Código de Ética Profesional, supra.i(6) Comenzado el trámite, nombramos al Hon. Wil*1074fredo Alicea López como Comisionado Especial. En la con-ferencia celebrada el 29 de noviembre de 2011 por el Comi-sionado Especial, las partes estipularon someter el caso basado en las constancias de los autos.
Sometido el caso ante nuestra consideración y contando con los escritos que obran en autos, incluyendo el Informe del Comisionado Especial, examinamos las normas aplicables.
J-H J-H
A. El Canon 35, supra, impone a los abogados un deber de actuar con sinceridad y honradez. Este canon dis-pone:
La conducta de cualquier miembro de la profesión legal ante los tribunales, para con sus representados y en las relaciones con sus compañeros debe ser sincera y honrada.
No es sincero ni honrado el utilizar medios que sean incon-sistentes con la verdad ni se debe inducir al juzgador a error utilizando artificios o una falsa relación de los hechos o del derecho. Es impropio variar o distorsionar las citas jurídicas, suprimir parte de ellas para transmitir una idea contraria a la que el verdadero contexto establece u ocultar alguna que le es conocida.
El abogado debe ajustarse a la sinceridad de los hechos al examinar los testigos, al redactar afidávit u otros documentos, y al presentar causas. El destruir evidencia documental o fa-cilitar la desaparición de evidencia testifical en un caso tam-bién es altamente reprochable. 4 L.P.R.A. Ap. IX, C. 35.
Al respecto, hemos expresado que la conducta de un abogado debe ser sincera y honrada frente a todos y *1075ante todo tipo de acto. In re Pons Fontana, 182 D.P.R. 300 (2011). En esencia, se infringe este deber por el simple he-cho de faltar a la verdad, independientemente de los moti-vos de la falsedad, puesto que no es necesario que se haya faltado a la verdad deliberadamente o con la intención de defraudar o engañar. In re Nieves Nieves, 181 D.P.R. 25 (2011).
En ese sentido, hemos apuntalado que
Se infringe este deber deontológico con el hecho objetivo de faltar a la verdad en funciones propias de un abogado o cuando, actuando como ciudadano común, se pretende realizar actos o negocios de trascendencia jurídica. Más que un ideal irrealizable, la verdad es atributo inseparable del ser abogado y, sin ella, la profesión jurídica no podría justificar su existencia. In re Montañez Miranda, 157 D.P.R. 275, 281 (2002).
Respecto a los notarios, establecimos que cualquier hecho que un notario asevere en un documento público que no concuerde con la verdad, constituye una violación al Canon 35, supra, independientemente si hubo intención de faltar a la verdad. In re Tejada Rivera I, 155 D.P.R. 175, 182 (2001).
Entre algunas de las funciones de los notarios se encuentran la de “recibir e interpretar la voluntad de las partes, dándole forma legal, redactar las escrituras y documentos notariales a tal fin y conferirle[s] autoridad ...”. (Énfasis suplido). Art. 2 de la Ley Núm. 75 de 2 de julio de 1987 (4 L.P.R.A. see. 2002), conocida como Ley Notarial de Puerto Rico. Véase In re Avilés, Tosado, 157 D.P.R. 867 (2002). Para ello, el notario está autorizado por ley para dar fe e impartir autenticidad a los negocios jurídicos y otros actos extrajudiciales que se realicen ante él. In re Avilés, Tosado, supra, pág. 889. Todo lo anterior es corolario de la fe pública notarial, principio doctrinal consagrado en el Art. 2 de la Ley Notarial de Puerto Rico, supra. Este artículo dispone que
*1076El notario es el profesional del Derecho que ejerce una fun-ción pública, autorizado para dar fe y autenticidad conforme a las leyes de los negocios jurídicos y demás actos y hechos ex-trajudiciales que ante él se realicen, sin perjuicio de lo dis-puesto en las leyes especiales. Es su función recibir e interpre-tar la voluntad de las partes, dándole forma legal, redactar las escrituras y documentos notariales a tal fin y conferirle [s] au-toridad a los mismos. La fe pública al notario es plena respecto a los hechos que, en el ejercicio de su función personalmente ejecute o compruebe y también respecto a la forma, lugar, día y hora del otorgamiento. 4 L.P.R.A. see. 2002.
Hemos reiterado que la fe pública notarial constituye la espina dorsal de la profesión notarial. In re Collazo Sánchez, 159 D.P.R. 769, 774 (2003); In re Avilés, Tosado, supra. Véase, además, In re González Maldonado, 152 D.P.R. 871 (2000). Esto se debe a que el notario no es un simple observador del negocio jurídico que autoriza; por el contrario, al dar fe, el notario se asegura que el documento y los negocios allí contenidos son verdaderos y que la transacción es válida y legítima. In re Avilés, Tosado, supra, pág. 889.
En fin, el Canon 35, supra, obliga a los miembros de la profesión legal a observar una conducta totalmente sincera y honrada y prohíbe cualquier medio incompatible con la verdad. In re Cuyar Fernández, 163 D.P.R. 113, 117 (2004). Es por ello que condenamos enérgicamente la participación consciente de un abogado, como funcionario o parte, en el otorgamiento de documentos simulados o faltos de veracidad, independientemente del propósito que anime dicha conducta. “Tal conducta es incompatible con la función pública del notario y con las exigencias de veracidad y honestidad que esta función acarrea”. In re Collazo Sánchez, supra, pág. 775.
B. Nos corresponde evaluar si el notario querellado violó su deber ético impuesto por el Canon 35, supra. En particular, debemos examinar si el notario, según lo dis-puesto en los Cargos I y II, violó el principio de la fe pú-*1077blica notarial y su deber de sinceridad y honradez al auto-rizar la Escritura Núm. 24 y la Escritura Núm. 71.
En este caso, el licenciado Ojeda Martínez aceptó en su comparecencia de 5 de junio de 2005, que el verdadero pro-pósito de las partes comparecientes en la Escritura Núm. 24, supra, era realizar una compraventa y que fue él quien asesoró a las partes para que realizaran la transacción me-diante Contrato de Donación; ello con el propósito de que los donatarios obtuvieran posteriormente un préstamo cuyo dinero utilizarían —la hermana del quejoso y su es-poso— para pagar a los donantes por la propiedad. A su vez, el donante y padre del quejoso y la donataria utiliza-rían el dinero recibido para pagar al quejoso la cuantía que éste reclamaba por la construcción de la segunda planta.
Esta admisión, sin más, es suficiente para concluir que el licenciado Ojeda Martínez no fue sincero al autorizar la Escritura Núm. 24. El querellado dio fe de una transacción que no representaba el verdadero interés de las partes en ese momento. Mientras el deseo de las partes era conseguir un préstamo hipotecario para otorgar eventualmente un Contrato de Compraventa, el notario asesoró a las partes e indujo a simular un negocio jurídico para la consecución de otro verdadero e interesado por las partes. Es decir, el no-tario aconsejó a las partes a transferir el dominio del in-mueble en cuestión mediante una donación, mientras el acuerdo de las partes era la otorgación de aquellos contra-tos necesarios para la concesión final de una compraventa. Nótese que la donación hecha mediante la Escritura Núm. 24, íue a título gratuito, pues no se expresa precio alguno sobre la propiedad ni intercambio de bienes que pueda lle-varnos a concluir que en dicha Escritura hubo una dona-ción parcial. Tampoco encontramos que el querellado haya recogido de alguna manera en la referida Escritura la ver-dadera intención de las partes de pagar posteriormente al donante por el inmueble con el producto del préstamo. Cuando el querellado se enteró que la compradora no ob-*1078tuvo el préstamo necesario para la compraventa, éste ase-soró nuevamente a las partes a comparecer en la Escritura Núm. 71, con el propósito de revertir la titularidad del in-mueble donado.
Es por ello que, fuera de las rigurosidades y caracterís-ticas de los negocios jurídicos implicados en esta transac-ción, no tenemos base alguna para concluir que el licen-ciado Ojeda Martínez autorizó un instrumento público que contuviera la verdadera intención de las partes de pagar posteriormente al donante por el inmueble. Esto nos lleva necesariamente a colegir que la autorización de la Escri-tura Núm. 24 y la Escritura Núm. 71 creó una impresión falsa de la realidad frente a terceros, incluyendo a poten-ciales acreedores hipotecarios y al Estado.
Es claro que el querellado violó la fe pública notarial al impartir fe sobre unos hechos falsos con conocimiento de ello. Ciertamente, este proceder constituye una violación al Canon 35, supra, lo cual constituye una falta grave en nuestro ordenamiento.
I — i H-1 HH
No obstante la gravedad de los Cargos I y II discutidos, prestamos atención especial al Cargo III. Se nos indica que mientras la presente queja se tramitaba, el licenciado Ojeda Martínez violó el Canon 38, supra, al enviar una carta al quejoso en la cual le avisó de una posible demanda en su contra por alegados daños sufridos como consecuen-cia del proceso disciplinario que hoy atendemos. Por la trascendencia del contenido de la comunicación, a conti-nuación la reproducimos íntegramente:(7)
*107930 de octubre de 2008 Correo Certificado con Acuse de Recibo
Sr. Luis Raúl Delgado Mercado y su esposa, Sra. Zaida M. Reyes Hernandez
Re: Demanda en Daños y Perjuicios Estimado Sr. Y Sra. Delgado:
El proposito de la presente carta es para informarle que luego de revisarlos hechos que usted y su esposa estipularon en el caso, Civil Num. K AC2005-8779 (508) en donde usted y su esposa acordaron, aceptaron y al dia de hoy es final y firme, he decidido que llego el tiempo para que el abogado suscribiente le pida cuentas por los daños y perjuicios que durante años mantuvo a toda mi familia en angustia por usted haberme sometido una querella en el Tribunal Supremo, solicitando mi desaforo, destitución como abogado y los mas traumático, el perder mi licencia que es con lo que me gano mishabichuelas y mantengo a mis hijas y familiares, he decidido presentar contra usted y su esposa una demanda por Daños y Perjuicios por haberme radicado una querella de mala fe, con toda intención de que me desaforaran y perdiera el modus vivendi de ga-narme la vida y por ultimo haber mentido bajo juramento al alegar que este abogado habia defraudado a la Sra. Nilsa I. Caban apropiándome mediante engaño de la casa de Colinas de Fair View, que si su memoria aun le funciona, le ayude ha que no perdiera la misma primero ofreciemdome a prestarle el dinero para que usted pudiera pagar la hipoteca de esa casa y luego complaciéndolo y haciéndole el favor de comprarle esa casa por insistencia suya.
Ahora, la situación y el tiempo ha sacado la verdad a flote y con las estipulaciones que hizo en el caso antes mencionado y con la prueba de que usted mintió bajo juramento alegando que el suscribiente engaño a la Sra. Caban dejándola fuera de la correspondiente división de la misma, me han hecho decidir radicarle una demanda por la suma de $50,000.00 dolares y solicitarle al tribunal que me asegure el [c]obro de ese dinero poniéndole un gravamen a su participación hereditaria en la propiedad donde reside. Lamento mucho que usted en su afan por hacerle daño a varias personas, no pensó que le sucedería de ser la parte perdedora y la que con toda mala fe e intención me radico una querella cargada de mentiras y calumnias que al presente tendrá que pagar. El poner en riesgo el medio de una persona ganarse la vida de la forma mal intencionada que *1080usted utilizo para hacerme daño, merece que ahora aprenda que lo que se hace de mala fe, a su tiempo tendrá los efectos que merece. No creo que usted pueda pensar que el haberme intentado dejarme a mi y a mis hijas en la Calle, nos hizo sufrir y angustiarnos por todos estos años. Le doy la Gloria al Señor que no permitió que la maldad venciera la verdad y ahora le toca a usted y a su esposa sentir lo que mi familia sintió cuando usted y su esposa injustamente nos ataco y pidió mi desaforo.
Puede estar seguro que la prueba esta ahí y es cuestión de tiempo el que los tribunales observen las contradicciones que usted y su esposa hicieron en la querella que me radicaron y luego en la estipulación que presentaron en corte y que al dia de hoy ya es final y firme.
Le ofrezco una alternativa para que la acción que radicare no le afecte brutalmente y es que si usted mi hace un pago de $5,000,00 dolares como gastos y daños ocasionados, en el ter-mino de 30 dias, estaría dispuesto a renunciar por escrito el demandarlo por $50,000.00 dolares.
Aunque no lo crea, yo al contrario suyo le oro a Dios por usted porque se que esa es el deseo del Señor. Ahora sus actos ten-drán que enfrentar sus efectos. Tiene 30 dias para aprove-charse de mi propuesta, de no aceptarla, lamentablemente, le radicare una demanda por todos los daños y angustias que usted me hizo pasar a mi y a mi familia y entenderá que las actuaciones fuera de la voluntad de Dios tienen que pagar su precio.
En espera que sea sabio y acepte la alternativa que le ofrezco de compensar los daños brutales que su mala fe me ha ocasio-nado y paga en cheque certificado la suma de $5,000.00, dejare el asunto ahí, pero si usted comete el error nuevamente de creer que no tengo el derecho de reclamarle mediante esta carta, le aseguro que volverá nuevamente a perjudicarse aun mas de lo que actualmente esta.
Atentamente;
Ledo. Miguel A. Ojeda Martínez (por la misericordia de Dios que no permitió que usted me dejara sin poderme ganar la vida. Apéndice, págs. 81-82.
Mediante la referida misiva, el querellado consideró que el proceso disciplinario fue instado por el quejoso sin fun-damento alguno. En consecuencia, estimó que había su-frido daños y perjuicios ascendentes a cincuenta mil dóla-*1081res ($50,000). Asimismo, el licenciado Ojeda Martinez aprovechó la misiva para hacer una oferta de transacción del potencial pleito. En específico, el notario ofreció abste-nerse de presentar el potencial pleito por cinco mil dólares. Consideramos que ese proceder representa una violación a los deberes éticos de la profesión legal. Veamos.
El Canon 38, supra, dispone, en lo pertinente, que todo abogado debe esforzarse para exaltar el honor y la dignidad de la profesión, aunque ello conlleve grandes sacrificios personales. Indudablemente, “ ‘[c]ada abogado es un espejo en [el] que se refleja la imagen de la profesión ...”. (Enfasis suprimido). In re Silvagnoli Collazo, 154 D.P.R. 533, 541 (2001), citando a In re Ortiz Brunet, 152 D.P.R. 542, 556 (2000), y a su vez, In re Coll Pujols, 102 D.P.R. 313, 319 (1974). El abogado debe evitar hasta la apariencia de conducta profesional impropia. In re Silvagnoli Collazo, supra, pág. 541. La razón es que la conducta impropia o hasta su apariencia, tiene el efecto de malograr la imagen, la confianza y el respeto de la ciudadanía hacia la profesión. In re Gordon Menéndez I, 171 D.P.R. 210, 216 (2007); In re Sepulveda Girón, 155 D.P.R. 345 (2001). De esta forma, hemos sancionado a los abogados por la apariencia de conducta impropia. Véanse: In re Silvagnoli Collazo, supra; In re Nogueras Cartagena, 150 D.P.R. 667 (2000); In re Ortiz Brunet, supra.
Hemos establecido que un abogado puede aceptar su responsabilidad y transigir su diferencia con el quejoso. Véanse: Canon 26 del Código de Etica Profesional, 4 L.P.R.A. Ap. IX; In re Ríos Ríos, 175 D.P.R. 57, 76 (2008). Véase, además, In re Pagán Ayala, 117 D.P.R. 180, 187 (1986). Incluso, es norma que la admisión de responsabilidad civil y el resarcimiento por el abogado a su cliente serán factores atenuantes que se analizarán conjuntamente con las circunstancias del caso. In re Ríos Ríos, su*1082pra, págs. 76-77. Sin embargo, el Canon 26, supra, esta-blece un “principio ético ... dirigido a evitar ... que el abogado limite, se exonere o evada, contractualmente o de otro modo, su responsabilidad profesional”. In re Ríos Ríos, supra, pág. 76. Por esta razón, en In re Pagán Ayala, supra, pág. 187, aclaramos que
... en ninguna forma podrá el abogado transigir con su cliente la acción civil en daños por mala práctica profesional, al esta-blecer como condición para ello que no se presente querella por violación ética en su contra.
Por tal razón, un contrato con tales condiciones no evita nuestra jurisdicción disciplinaria. Id.
Sin embargo, en este caso nos encontramos en una si-tuación distinta; no se trata de que el licenciado Ojeda Martínez hiciera una oferta de manera expresa en torno a la transacción de la queja presentada. Por el contrario, el contenido de la carta sobre un aviso de pleito denota apa-riencia impropia que, a su vez, puede tener un efecto ex-tremadamente lesivo para la honra de la profesión. En efecto, consideramos que este tipo de carta es altamente impropia cuando, aún pendiente el proceso disciplinario, un abogado ejerce presión económica y psicológica me-diante artificios y presiones sobre los ciudadanos que pre-senten quejas éticas. Esto puede tener un efecto desalen-tador (“chilling effect”) de manera implícita. Asimismo, puede provocar que el quejoso desista del proceso disciplinario. En consecuencia, resolvemos que enviar este tipo de carta amenazante, aún pendiente la adjudicación del proceso disciplinario, constituye una violación al Canon 38 del Código de Etica Profesional, supra.
Somos conscientes de que las quejas sobre conducta pro-fesional dan paso a un proceso difícil de enfrentar para la vida profesional y personal de cualquier abogado. No obs-tante, el abogado no puede valerse de artificios y amenazas para presionar indebidamente a un quejoso. De igual *1083forma, somos conscientes de que, en ocasiones, el abogado puede sentir extrema molestia, máxime cuando entiende que la queja presentada en su contra no tiene fundamento válido. Empero, amenazar al quejoso con un posible pleito de daños y perjuicios tiene el efecto de manchar la honra de la profesión. Distinto al resto de los procesos adjudica-tivos judiciales o administrativos, el abogado debe enfren-tar el proceso sobre conducta profesional con la honra y el sacrificio que conlleva la profesión de la abogacía; en su día, tendrá la oportunidad de defenderse y persuadir a to-das aquellas personas relacionadas con el proceso adjudi-cativo de quejas sobre conducta profesional. En fin, conde-namos enérgicamente que un abogado intente evadir el proceso disciplinario enviando cartas de aviso de pleito por alegados daños causados por la presentación de una queja relacionada con su conducta profesional.
Por los fundamentos antes esbozados, colegimos que el licenciado Ojeda Martínez incurrió en violaciones a los Cánones 35 y 38 del Código de Ética Profesional, supra, según lo dispuesto en los cargos formulados. Nos resta determi-nar cuál debe ser la sanción a imponer.
IV
Hemos reiterado que al momento de imponer la sanción disciplinaria consideramos los factores siguientes:
“(i) la buena reputación del abogado en la comunidad; (ii) su historial previo; (iii) si esta constituye su primera falta y si alguna parte ha resultado perjudicada; (iv) la aceptación de la falta y su sincero arrepentimiento; (v) si se trata de una con-ducta aislada; (vi) el ánimo de lucro que medió en su actua-ción; (vii) resarcimiento al cliente, y (viii) cualesquiera otras consideraciones, ya bien atenuantes o agravantes, que medien de acuerdo con los hechos”. (Énfasis suprimido). In re Pérez Marrero, 185 D.P.R. 449, 461 (2012), citando a In re Quiñones Ayala, 165 D.P.R. 138, 147 (2005). Véase In re Mulero Fernández, 174 D.P.R. 18, 37 (2008).
*1084Estos criterios nos sirven de guía al determinar la san-ción que procede imponer.
En su informe, el Comisionado Especial nos sugiere que atemperemos la sanción a las admisiones del licenciado Ojeda Martínez, que ciertamente han sido de beneficio para el proceso disciplinario. También, al revisar el expe-diente personal del licenciado Ojeda Martínez, tomamos como atenuante que no tiene historial disciplinario previo al que hoy atendemos.
V
Por los fundamentos que anteceden, suspendemos al li-cenciado Ojeda Martínez del ejercicio de la abogacía y la notaría por un término de tres (3) meses a partir de la no-tificación de la presente Opinión “per curiam”. El licen-ciado Ojeda Martínez tiene el deber de notificar a todos sus clientes de su inhabilidad para continuar representándoles y les devolverá los expedientes de los casos pendientes, así como los honorarios recibidos por trabajo no realizado. De-berá también informar oportunamente de su suspensión a los foros judiciales y administrativos del país y certificar a este Tribunal, dentro del término de treinta (30) días, el cumplimiento con lo aquí dispuesto. Por último, el Alguacil de este Tribunal deberá incautar la obra y el sello notarial del licenciado Ojeda Martínez y los entregará a la Direc-tora de la Oficina de Inspección de Notarías para la corres-pondiente investigación e informe.
Se dictará Sentencia de conformidad.
El Juez Presidente Señor Hernández Denton, la Jueza Asociada Señora Fiol Matta y la Juez Asociada Señora Ro-dríguez Rodríguez no intervinieron.
(1) El quejoso adujo que el licenciado Ojeda Martínez, actuando como notario, incurrió en un conflicto de interés al autorizar la Escritura Núm. 24 de 22 de mayo de 1989 y la Escritura Núm. 71 de 22 de septiembre de 1990. Además, alegó que el abogado ocultó documentos, faltó a la lealtad y fidelidad a la amistad, y se autore-presentó en una Escritura de Compraventa para ocultar información y no compartir bienes gananciales con su exesposa. Por último, indicó que el abogado pretendió sobornarlo para intentar detener la investigación. Sin embargo, estas alegaciones fueron depuradas según la prueba evaluada por la Oficina de Inspección de Notarías.
(2) AB-2005-180.
(3) Réplica a la queja AB-2005-180 de 5 de junio de 2006, pág. 2, Apéndice, pág. 24.
(4) íd.
(6) íd.
(6) La Procuradora General imputó los cargos siguientes:
“Cargo [s] I y II
El licenciado Miguel A. Ojeda Martínez incurrió en conducta que viola la fe pública notarial de la cu[a]l es custodio y los preceptos enunciados en el Canon 35 de Etica Profesional, 4 L.P.R.A. Ap. IX, C. 35, al dar fe de hechos falsos en la Escritura Núm. 24 de 22 de mayo de 1989 en donde se realiza una donación cuando las partes interesaban una compraventa, donación que luego fue revertida en una segunda escritura autorizada por dicho abogado el 22 de septiembre de 1990, Escritura Núm. *107471. El notario al autorizar dichas transacciones conocía que las partes lo que intere-saban en realidad era la venta del inmueble en cuestión y la obtención de dinero para realizar un pago al quejoso, señor Luis Raúl Delgado Mercado, quejoso.
“Cargo III
El licenciado Miguel A. Ojeda Martínez violó las disposiciones del Canon 38 de Ética Profesional, 4 L.P.R.A. Ap. Di C. 38, el cual, entre otras cosas, dispone que todo abogado tiene el deber de evitar, en todo momento, hasta la apariencia de conducta impropia. Los hechos relatados previamente y contenidos en el Informe rendido por ODIN en cuanto a la comunicación del 30 de octubre de 2008, demuestra a todas luces la violación de este [clanon”. Querella, págs. 3-4.
(7) Transcribimos la carta tal como surge del expediente. | 01-03-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/126905/ | 537 U.S. 1168
POINTERv.PARENTS FOR FAIR SHARE, ante, p. 902.
No. 02-5224.
Supreme Court of United States.
January 21, 2003.
1
APPLICATION TO FILE PETITION.
2
Motion of petitioner for leave to file petition for rehearing denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/126915/ | 537 U.S. 1169
WYCOFFv.MATHIS, WARDEN; and
No. 02M49.
Supreme Court of United States.
January 27, 2003.
1
Motion to direct the Clerk to file petitions for writs of certiorari out of time denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/4538747/ | In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1114V
(not to be published)
NICOLE HARDER, as Parent and Legal
Representative of Her Minor Son, Chief Special Master Corcoran
J.A.H,
Filed: May 4, 2020
Petitioner,
v. Special Processing Unit (SPU);
Attorney’s Fees and Costs
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Glen Howard Sturtevant, Jr., Rawls Law Group, Richmond, VA, for Petitioner.
Mark Kim Hellie, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION GRANTING ATTORNEY’S FEES AND COSTS 1
On July 31, 2019, Nicole Harder filed a petition for compensation on behalf of her
minor son, J.A.H., under the National Vaccine Injury Compensation Program, 42 U.S.C.
§300aa-10, et seq., 2 (the “Vaccine Act”). Petitioner alleges that her son suffered an
intussusception that required surgical intervention as a result of a rotavirus vaccination
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the Decision will be available to anyone with access to the
internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact
medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy.
If, upon review, I agree that the identified material fits within this definition, I will redact such material from
public access.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
on September 19, 2018. (Petition at 1). On March 12, 2020, a decision was issued
awarding compensation to Petitioner based on Respondent’s proffer. (ECF No. 21).
Petitioner has now filed a motion for attorney’s fees and costs, dated March 25,
2020 (ECF No. 25), requesting a total award of $19,485.12 (representing $17,835.80 in
fees and $1,649.32 in costs). In accordance with General Order #9, Petitioner filed a
signed statement indicating that no out-of-pocket expenses were incurred in the
prosecution of this case. (ECF No. 25-3). Respondent reacted to the motion on April 8,
2020, indicating that he is satisfied that the statutory requirements for an award of
attorney’s fees and costs are met in this case, and deferring to my discretion to determine
the amount to be awarded. (ECF No. 26). Petitioner did not file a reply thereafter.
I have reviewed the billing records submitted with Petitioner’s requests and find a
reduction in the requested amount of fees to be awarded appropriate, for the reason listed
below.
ANALYSIS
The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section
15(e). Counsel must submit fee requests that include contemporaneous and specific
billing records indicating the service performed, the number of hours expended on the
service, and the name of the person performing the service. See Savin v. Sec’y of Health
& Human Servs., 85 Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee
requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton v.
Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983)). It is “well within the special master’s discretion to
reduce the hours to a number that, in [her] experience and judgment, [is] reasonable for
the work done.” Saxton, 3 F.3d at 1522. Furthermore, a special master may reduce a fee
request sua sponte, apart from objections raised by respondent and without providing a
petitioner notice and opportunity to respond. See Sabella v. Sec’y of Health & Human
Servs., 86 Fed. Cl. 201, 209 (2009). A special master need not engage in a line-by-line
analysis of petitioner’s fee application when reducing fees. Broekelschen v. Sec’y of
Health & Human Servs., 102 Fed. Cl. 719, 729 (2011).
The petitioner “bears the burden of establishing the hours expended, the rates
charged, and the expenses incurred.” Wasson v. Sec’y of Health & Human Servs., 24 Cl.
Ct. at 482, 484 (1991). The Petitioner “should present adequate proof [of the attorney’s
fees and costs sought] at the time of the submission.” Id. at 484 n.1. Petitioner’s counsel
“should make a good faith effort to exclude from a fee request hours that are excessive,
2
redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is
obligated to exclude such hours from his fee submission.” Hensley, 461 U.S., at 434.
ATTORNEY FEES
Petitioner requests the following rates of compensation for the work of her
attorneys: for Whit Long, $238 per hour for work performed in 2018; and for Glen
Sturtevant, $326 for work billed in 2018, $339 for work billed in 2019, and $353 for 2020
time. (ECF No. 25-1 at 4, 9, and 13). Petitioner also requests rates ranging from $152.00
per hour to $163.00 per hour for paralegal work, depending on the individual paralegal
and the year of the work. (Id).
The rates requested for Mr. Sturtevant and the paralegals are consistent with what
has been previously awarded for their work in the Vaccine Program for time billed through
2020. Accordingly, no adjustment to the requested rates is necessary. However, I will
make an adjustment for Mr. Long’s 2018 rate. The rate requested exceeds Mr. Long’s
previously-awarded rate of $200 for time billed in 201. See, e.g., Rowell v. Sec’y of Health
& Human Servs., No. 18-1951V, slip op. at 37 (Fed. Cl. Spec. Mstr. April 14, 2020). I
therefore reduce Mr. Long’s rate the previously awarded rate of 2018 to $200 per hour.
This reduces the fees to be awarded in the amount of $26.60. 3
ATTORNEY COSTS
Petitioner requests $1,694.32 in overall costs. (ECF No. 25 at 2). This amount is
comprised of obtaining medical records, postage and the Court’s filing fee. I have
reviewed all of the requested costs and find them to be reasonable and shall award it in
full.
CONCLUSION
The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section
15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. I
award a total of $19,503.52 (representing $17,809.20 in attorney’s fees and $1,694.32 in
costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s
counsel. In the absence of a timely-filed motion for review (see Appendix B to the Rules
of the Court), the Clerk shall enter judgment in accordance with this decision. 4
3 This amount consists of $238 - $200 = $38 x 0.70 hrs = $26.60.
4 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
3
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
4 | 01-03-2023 | 06-04-2020 |