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537 U.S. 1234 LEWISv.COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION. No. 02-7657. Supreme Court of United States. March 3, 2003. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. 2 C. A. 5th Cir. Certiorari denied. Reported below: 46 Fed. Appx. 225.

01-03-2023

04-28-2010

https://www.courtlistener.com/api/rest/v3/opinions/127729/

537 U.S. 1234 BRECKENRIDGEv.UNITED STATES. No. 02-1148. Supreme Court of United States. March 3, 2003. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT. 2 C. A. 11th Cir. Certiorari denied. Reported below: 48 Fed. Appx. 739.

01-03-2023

04-28-2010

https://www.courtlistener.com/api/rest/v3/opinions/1900344/

84 B.R. 164 (1988) John and Mary LINDERMUTH, Appellants, v. David Reed MYERS, Gloria June Myers, and Farmers & Merchants Bank, Appellees. Civ. No. 87-1039. United States District Court, D. South Dakota, N.D. March 16, 1988. *165 Paul G. Riley, Aberdeen, S.D., for appellants. Curt Ewinger, Aberdeen, S.D., for appellees. MEMORANDUM OPINION DONALD J. PORTER, Chief Judge. This appeal arises out of a bankruptcy court order disallowing the claim of John and Mary Lindermuth (hereafter Appellants) against the bankruptcy estate of David Reed and Gloria June Myers (hereafter Debtors). A companion appeal objecting to confirmation of the debtors' plan is not dealt with in this memorandum. Instead, this memorandum will deal solely with the question of the Appellants' claim. Prior to 1981, the Appellants operated a veterinary clinic in Ipswich, South Dakota. On January 19, 1981, Appellants as sellers, and Debtors as buyers, entered into a contract for sale of the clinic personalty, and also for sale of certain realty. The contract contains a provision which reserves the sellers' right to possession. Specifically, it provides: In the case of failure of said BUYERS to either make the payment of principal or the payment of interest thereon, or any part thereof, or perform any of the covenants on their part made and entered into, the whole of said payments and interest shall at the election of the SELLERS become immediately payable, and this contract shall, at the option of the SELLERS, be forfeited and determined by giving to the said BUYERS thirty (30) days notice in writing of the intention of said SELLERS to cancel and determine this contract, setting forth in said notice the amount due on said contract and the time and place, when and where, payment can be made by said BUYERS. It is mutually understood and agreed by and between the parties of this contract that thirty (30) days is a reasonable and sufficient notice to be given to said BUYERS in the case of failure to perform any of the covenants on their part hereby made and entered into and shall be sufficient to cancel all obligations hereunto on the part of said SELLERS and fully reinvest them with all right, title, and interest hereby agreed to be conveyed, and the BUYERS shall forfeit all payments made by them on this contract, and their right, title and interest in all buildings and improvements whatsoever, and with the understanding that such payments and improvements shall be retained by the SELLERS in full satisfaction and in liquidation of all damages by them sustained, and they shall have the right to reenter and take possession of the premises of aforesaid including any and all remaining inventory, supplies, equipment, tools, instruments, and fixtures. (emphasis supplied). Debtors paid the initial payment and the monthly installments as required under the contract until August of 1985. On September 16, 1986, the Debtors filed a bankruptcy petition with the bankruptcy court, Northern Division, District of South Dakota, Chapter 13 of Bankruptcy Code, 11 U.S.C. § 1301 et seq. (1982 & Supp. IV 1986). The Debtors filed a plan with the court on October 24, 1986. In that plan, the Debtors indicated they would reject their contract with the Appellants.[1] *166 The Appellants filed a proof of claim on December 22, 1986. They claimed Debtors' indebtedness to them under the contract was $118,115.59. In addition, they noted the existence of a vendor's lien. The Debtors objected to the proof of claim. In their objection, the Debtors acknowledged that rejection of an executory contract gives rise to a claim for breach as if the claim had arisen before the date of the filing. They contended, however, that the contract provisions noted above provided for liquidated damages and would control the damages available to the Appellants upon breach. On June 17, 1987, the bankruptcy court heard arguments of counsel over the Lindermuths' claim. At the hearing, the bankruptcy court determined that debtors' objection was well-founded and that there was no valid claim. The bankruptcy court then entered an order denying the claim. This appeal followed. At issue before this court is whether the bankruptcy court erred in disallowing the claim of the Appellants. Specifically, Appellants contend the bankruptcy court erred in requiring them to pursue one breach of contract remedy after a contract rejection under 11 U.S.C. § 365 (1982 & Supp. IV 1986). Debtors argue that the bankruptcy court decision was correct as the rejection of the contract and subsequent return of part of the subject matter of the contract pursuant to the provisions set out, supra, precluded Appellants' assertion of the claim. Thus, the determinative question is whether a seller on a contract rejected under § 365 may be forced to seek one remedy to the exclusion of others. 11 U.S.C. § 365(a) provides: ". . . the Trustee, subject to the Court's approval, may . . . reject any executory contract . . . of the debtors." Such rejection, however, constitutes a breach of the contract immediately before the date of the filing of the petition. 11 U.S.C. § 365(g)(1). See also N.L.R.B. v. Bildisco and Bildisco, 465 U.S. 513, 530, 104 S. Ct. 1188, 1198, 79 L. Ed. 2d 482 (1983). In this case, even though the plan rejecting the contract had yet to be filed, the Debtors are deemed to have breached the contract immediately before the September 16, 1986 filing of the petition. As a result of the rejection which by operation of law caused a breach of the contract with the debtors, the Appellants had a claim as creditors. 11 U.S.C. §§ 101(4)(a-b), 365(g), 502 and 502(g) (1982 & Supp. IV 1986). As noted above, the Appellants filed a proof of claim pursuant to 11 U.S.C. § 501 (1982 & Supp. IV 1986). The Debtors objected to the proof of claim, thereby requiring the bankruptcy court to resolve the dispute over the claim pursuant to 11 U.S.C. § 502 (1982 & Supp. IV 1985). That section requires the bankruptcy court to determine the value of the claim and to allow or disallow it. It is important to note that since the claim is based on a contract rejected under 11 U.S.C. § 365, the bankruptcy court's determination must focus on the facts as if this claim had arisen before the date of the filing of the petition. 11 U.S.C. § 502(g). In making the determination under § 502 as to the extent of the claim to be allowed, the Court must go beyond the bankruptcy code to the substantive law governing the rejected contract. See In re U.S. Truck Co., 74 B.R. 515, 527 (Bankr.E. D.Mich.1987). This law will specify the rights of a non-breaching party to a contract when such contract is breached. The governing law on the breach of the contract between the Debtors and the Appellants is the law of South Dakota. In re Continental Airlines Corp., 64 B.R. 865, 871 (Bankr.S.D.Tex.1986). See also In re Besade, 76 B.R. 845, 847 (Bankr.M.D.Fla. 1987); In re Davies, 27 B.R. 898, 900 (Bankr.E.D.N.Y.1983). Under South Dakota law, a non-breaching party to a contract has several options. Besides contract damages, the party may alternatively seek specific performance or enforcement of a specific contractual remedy. Middleton v. Klingler, 410 N.W.2d 184, 186 (S.D.1987). In certain additional situations, a non-breaching vendor may assert an action for foreclosure. SDCL Chapter 21-50 (1987). This Court notes, however, the provision in the contract which provides Appellants *167 with the remedy of taking possession was enforceable only at the election of the Appellants. As the Supreme Court noted in Middleton, "[w]here . . . there is no limitation in the contract which makes the remedies enumerated therein exclusive, a party is entitled to the remedies thus specified, or he may at his election pursue any other remedy which the law affords." 410 N.W.2d at 186. Thus, in South Dakota, upon breach of a contract by a buyer, the seller is not required to enforce an optional contractual remedy. In bankruptcy, when a contract is rejected by a purchaser, the seller retains his full rights and remedies against the purchaser. 7 R. Powell, Powell on Real Property, ¶ 938.22[7] (1987). As noted above, in South Dakota those rights are varied. Granted, if a seller chooses, he may elect to declare a contractual forfeiture Id. In this case, however, the bankruptcy court has required the Appellants to choose that specific remedy. Considering the explicit language of the contract indicates the remedy was optional, the court erred in forcing Appellants to choose that remedy. A party to a contract rejected under § 365 may make a breach of contract claim on any basis permitted by the pertinent law.[2] Accordingly, this Court holds the Bankruptcy Court erred by requiring Appellants to satisfy their claim under an optional provision in the executory contract. The Bankruptcy Court order appealed from disallowed any claim of Appellants by relying on the Court's conclusion there was no claim. As discussed above, the order was based on an erroneous conclusion of law and therefore must be reversed. Wegner v. Grunewaldt, 821 F.2d 1317, 1320 (8th Cir.1987). This holding does not, however, reach the question of the allowability under 11 U.S.C. § 502 any claim asserted on remand. Nor does this opinion touch on the secured status of any such claim. The order of the Bankruptcy Court disallowing the claim of the appellants is reversed. This case is remanded to the Bankruptcy Court for proceedings not in consistent with this memorandum opinion. NOTES [1] Appellants did not contest the classification of the contract as executory. The Bankruptcy Court has previously concluded a contract for deed is executory in South Dakota. In re Speck, 50 B.R. 307 (Bankr.D.S.D.1985), aff'd, 62 B.R. 61 (D.S.D.1985), aff'd, 798 F.2d 279 (8th Cir.1986). [2] It should be noted, however, that making a claim in bankruptcy does not necessarily result in the relief sought. Bankruptcy alters a creditor's state law power to enforce his claims against the bankruptcy estate. See e.g. In the Matter of Skelly, 38 B.R. 1000 (D.Del.1984). 11 U.S.C. § 502 operates to place a monetary value on a claim. See In the Matter of Brints Cotton Marketing, Inc., 737 F.2d 1338, 1341 (5th Cir. 1984); In re Evans Products Co., 60 B.R. 863, 868 (S.D.Fla.1986). Therefore, any claim for damages, specific performance, or any other type of remedy sought will be determined, and allowed or disallowed. 11 U.S.C. § 502. It should also be noted that 11 U.S.C. § 502 specifically provides a mechanism for considering equitable claims. 11 U.S.C. § 502(c).

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2885547/

NO. 07-01-0363-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B OCTOBER 11, 2001 ______________________________ ROYCE L. WELLINGTON, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2001-435768; HONORABLE JIM BOB DARNELL, JUDGE _______________________________ Before BOYD, C.J., and QUINN and JOHNSON, JJ. Pending before the Court is a “Motion for Appeal of Conviction,” filed by appellant Royce L. Wellington, and a Clerk’s Record as to Cause Number 2001-435,768 in the 140th District Court of Lubbock County. We dismiss for want of jurisdiction. By his Motion for Appeal appellant sought the trial court’s approval to appeal from his conviction pursuant to a plea-bargained guilty plea for Aggravated Perjury. The judgment was signed on June 1, 2001; sentence was imposed on June 1, 2001; no Motion for New Trial was filed except to the extent appellant’s Motion for Appeal could be construed as an untimely Motion for New Trial; appellant’s Motion for Appeal was filed on August 28, 2001. In a criminal case, appeal is perfected by timely filing a notice of appeal. TEX . R. APP . P. 25.2(a). The notice of appeal must be filed within 30 days after the day sentence is imposed or after the day the trial court enters an appealable order, unless a timely motion for new trial is filed. TRAP 26.2(a). A motion for new trial may be filed by a criminal defendant no later than 30 days after the date sentence is imposed in open court. TRAP 21.4(a). The time for filing a notice of appeal may be extended for 15 days under certain circumstances. TRAP 26.3. If the time for filing a notice of appeal is to be extended, both a notice of appeal and a motion for extension of time which complies with TRAP 10.5(b) must be filed within the 15 day period. TRAP 26.3; Olivo v. State, 918 S.W.2d 519, 523-25 (Tex.Crim.App. 1996). An untimely-filed notice of appeal will not invoke the jurisdiction of the court of appeals. See State v. Riewe, 13 S.W.2d 408, 411 (Tex.Crim.App. 2000). Thus, if an appeal is not timely perfected, a court of appeals does not have jurisdiction to address the merits of the appeal, and can take no action other than to dismiss the appeal. Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App. 1998); Olivo v. State, 918 S.W.2d at 523-25. 2 To the extent appellant’s Motion for Appeal is a Motion for New Trial it was not timely to extend the time for filing notice of appeal; to the extent appellant’s Motion for Appeal is a notice of appeal, it was not timely filed. A motion to extend time to file notice of appeal was not filed. Accordingly, this court does not have jurisdiction over this proceeding. Slaton, 981 S.W.2d at 210; Olivo, 918 S.W.2d at 523. The matter is dismissed for want of jurisdiction. TRAP 39.8, 40.2, 43.2. Phil Johnson Justice Do not publish. 3

01-03-2023

09-07-2015

https://www.courtlistener.com/api/rest/v3/opinions/2898698/

NO. 07-08-0479-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B SEPTEMBER 28, 2009 ______________________________ BOBBY WAYNE TERRY,                                                                                                  Appellant v. THE STATE OF TEXAS,                                                                                                  Appellee _________________________________ FROM THE 47TH DISTRICT COURT OF POTTER COUNTY; NO. 57653-A; HON. HAL MINER, PRESIDING _______________________________ Opinion _______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.           Bobby Wayne Terry was convicted of burglary of a building. He seeks reversal of that conviction because the trial court failed to instruct the jury on the purported lesser- included offense of criminal trespass. We affirm the judgment.           Background            On April 1, 2008, around 8:00 p.m., police officers responded to a burglar alarm that went off at Cruz Construction Company in Amarillo. Upon their arrival, they discovered that a cinder block had been thrown through a plate glass door of the building. Thereafter, appellant was found standing in the building by a desk. Atop the desk were papers that had been strewn about. The police arrested and mirandized appellant. Subsequently, he informed them that “he used a key to get in and was there because he was previously employed by Cruz Construction and they owed him some money and he was there to get his check.” John Cruz testified that appellant had never worked for the company and did not have permission to be in the building. Nothing was found to be missing from the office.           Applicable Authority and Analysis           Appellant sought an instruction on the lesser-included offense of criminal trespass. For him to be entitled to it, a two-pronged test must be satisfied. First, the elements of the purported lesser offense must be included within the proof necessary to establish the greater offense and, second, some evidence must appear of record that would permit a jury to rationally find that if appellant was guilty of anything, it was only of the lesser offense. Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993). In considering the first prong, we compare the elements of the lesser crime to those of the greater as the latter are described in the indictment. Hall v. State, 225 S.W.3d 524, 535-36 (Tex. Crim. App. 2007). If the elements of the lesser offense are not included in the wording of the crime as alleged in the indictment, it is not a lesser-included offense.           With respect to the second prong, if there is more than a scintilla of evidence from any source indicating that the defendant is guilty only of the lesser offense, the instruction must be given. Forest v. State, 989 S.W.2d 365, 367 (Tex. Crim. App. 1999). However, that evidence in question must affirmatively negate the element present in the greater offense but absent in the lesser. Morris v. State, No. 07-99-0498-CR, 2000 Tex. App. Lexis 7181 at *5 n.1 (Tex. App.–Amarillo October 25, 2000, pet. ref’d) (not designated for publication). It is not enough to simply rely on the State’s failure to prove the particular element.           Next, to be guilty of burglarizing a building (as charged in the indictment before us), the State was required to prove that appellant, with intent to commit theft, entered a building or a portion of a building not then open to the public without the effective consent of the owner. See Tex. Penal Code Ann. §30.02(a)(1) (Vernon 2003). Given that a person commits criminal trespass if he enters or remains in a building without effective consent and had notice that the entry was forbidden or he received notice to depart but failed to do so, id. §30.05(a) (Vernon Supp. 2008), it is arguable that the elements of criminal trespass fell within the scope of the offense encompassed by the indictment. See De Vaughn v. State, 239 S.W.3d 351, 356 (Tex. App.–San Antonio 2007, pet. ref’d) (so holding based on the indictment before that court). Consequently, we assume arguendo that such is the situation here. So, that leaves us with considering whether the second prong of Rousseau was satisfied.           Upon reviewing the record, we find evidence that appellant had been but was no longer an employee of Cruz Construction, had a key to the Cruz Construction office, used that key to enter the office building after it was closed, believed Cruz Construction owed him money, and entered the building with the intent to obtain a check. Because of this evidence, appellant believed the State failed to prove that element of burglary requiring entry with intent to commit theft. Yet, as previously mentioned, the State’s failure to prove an element of the greater offense does not alone entitle the accused to an instruction on the lesser offense.           As for the possibility that evidence of appellant’s entry with a key to obtain payment for a purported debt constitutes some affirmative evidence negating an intent to commit theft, we say this. Simply possessing a key to a building may signify that one has the ability to gain entry into the building. Yet, having that ability alone does not permit one to reasonably infer that entry was or would be authorized; this is so because the key could have been obtained through various means, some legitimate and others not. And, here, the record contains no specific information about how appellant secured his alleged key. Nor can a jury reasonably infer, given the record at bar, that he legitimately obtained it while a supposed employee of Cruz Construction. Doing so would require it to assume that Cruz Construction not only supplied keys to its employees but also that employees were not obligated to return them once the employment relationship ceased (as it allegedly did here). Assumptions are not evidence.           Moreover, even if it was possible to deduce from the mere possession of a key that the possessor was allowed to enter, that would not be of benefit to appellant. This is so because the very same inference would tend to negate an element of criminal trespass. Simply said, if appellant was entitled to enter the property because he had a key, then his presence was not without the effective consent of the property owner or occupant. And, if it was not without the effective consent of the legitimate occupant or property owner (i.e. if it was with such consent), then the accused failed to trespass.           As for the matter of his purported presence after hours to collect a supposed debt due him, we are quite hesitant to suggest that being owed an unsecured debt somehow entitles the creditor to invoke self-help, enter the debtor’s home or building without consent, and take what is supposedly due. This is especially so given the absence of any evidence tending to show that a party authorized to act on behalf of Cruz Construction authorized appellant’s entry. Moreover, appellant cites no authority swaying us to conclude otherwise. So, without knowing of any authority granting a non-lien holding creditor such a right, appellant’s entry, without the owner’s consent, to take property (i.e. a check) within the building cannot but be construed as entry with intent to deprive the owner of property.           In sum, we conclude that the requirements of Rosseau were not satisfied and that appellant was not entitled to the instruction sought. The judgment of the trial court is affirmed.                                                                              Brian Quinn                                                                           Chief Justice Publish. fficient because Jacqueline never testified as to any sexual contact, i.e., no clothes were torn, undone, or unzipped, nor was any genitalia exposed. An attempt to commit an offense occurs if, "with specific intent to commit an offense, he [the accused] does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended." Tex. Pen. Code Ann. §15.01(a) (Vernon 2003). A person's conduct constitutes an attempt to commit the aggravated offense if an element that aggravates the offense accompanies the attempt. Id. §15.01(b). A person commits aggravated sexual assault if he "intentionally or knowingly causes the penetration of the anus or female sexual organ of another person by any means, without that person's consent" and "uses or exhibits a deadly weapon in the course of the same criminal episode." Tex. Pen. Code Ann. §22.021(a)(1)(A) & (a)(2)(A)(iv) (Vernon Supp. 2004). In its relevant charge, the jury was instructed that it could convict if it found beyond a reasonable doubt that appellant: with the specific intent to commit the offense of Aggravated Sexual Assault of Jacqueline Vasquez, [did] an act, namely, striking Jacqueline Vasquez in the head and instructing Jacqueline Vasquez to spread her legs, which amounted to more than mere preparation that tended but failed to effect the commission of the offense, and in the commission of the offense, the defendant used or exhibited a deadly weapon, namely a firearm . . . . The jury was additionally instructed in pertinent part that "[o]ur law provides that a person commits the offense of aggravated sexual assault if the person intentionally or knowingly causes the penetration of the female sexual organ of another person by any means, without that person's consent." It was further instructed that an attempt to commit an offense occurs "if, with specific intent to commit an offense, a person does an act amounting to more than mere preparation that tends, but fails, to effect the commission of the offense intended." The jury charge satisfactorily tracked the applicable statutes. At trial, Abraham averred that appellant made gestures at Jacqueline, including "grabbing his testicles." Appellant also hit Jacqueline in the face with the gun. Jacqueline testified that after appellant grabbed his crotch, he tried to force her legs apart with his gun. The evidence was amply sufficient to support a conclusion that appellant had the specific intent to have intercourse with Jacqueline without her consent. In particular, his acts in trying to spread her legs apart after grabbing his crotch is sufficient to justify a conclusion as to appellant's specific intention without the necessity of having actual sexual contact with her or appellant having actually exposed his genitals. Appellant's third perceived issue is overruled. In his fourth perceived issue, appellant argues the evidence is not sufficient to support his kidnapping conviction. In particular, he argues it is insufficient because Jacqueline was never abducted, she was in her home which was a safe place, and no weapons were shown or produced at trial to show she was held against her will. The statute provides that a person commits the offense of aggravated kidnapping if he "intentionally or knowingly abducts another person with the intent to . . . inflict bodily injury on [her] or abuse [her] sexually" or if he "intentionally or knowingly abducts another person and uses or exhibits a deadly weapon during the commission of the offense." Tex. Pen. Code Ann. §20.04(a)(4) § (b) (Vernon 2003). With regard to the application paragraph, the jury was charged that it might convict if it found beyond a reasonable doubt that appellant "intentionally or knowingly abducted Jacqueline Vasquez, with the intent to prevent her liberation, by using or threatening to use deadly force, namely threatening to shoot her with a firearm, and with the intent to inflict bodily injury on Jacqueline Vasquez or violate or abuse her sexually." The charge satisfactorily tracked the statute. The definition portion of the jury charge tracked the statutory definitions for "abduct" and "restrain" as follows: "ABDUCT" means to restrain a person with intent to prevent her liberation by using or threatening to use deadly force. "RESTRAIN" means to restrict a person's movements without consent so as to interfere substantially with her liberty, by moving her from one place to another or by confining her. Restraint is "without consent" if it is accomplished by force, intimidation or deception. See Tex. Pen. Code Ann. §20.01(1)(A) & (2)(B) (Vernon Supp. 2004). Jacqueline's testimony, which we have recited in some detail, is amply sufficient to show that appellant restrained her freedom to move with the use of force and with a gun. Abraham's testimony that he saw appellant holding Jacqueline with the use of a gun sufficiently corroborates her testimony. Perceived issue four is overruled. In his fifth perceived issue, appellant posits that the trial court reversibly erred in refusing an instruction on the lesser-included offenses of assault, attempted sexual assault, kidnapping, unlawful restraint, and false imprisonment. Parenthetically, in 1997, the legislature renamed the crime of "false imprisonment," and it is now called "unlawful restraint." However, substantively, the former "false imprisonment" and the current "unlawful restraint" statutes are identical. (2) Before a jury charge on a lesser-included offense must be given, a two prong test must be met, namely: 1) the lesser-included offense must be included within the proof necessary to establish the offense charged; and 2) some evidence must exist within the record that if the defendant is guilty, he is guilty only of the lesser offense. Both prongs of the test must be met, regardless of whether such an instruction is requested by the defendant or the State. Hampton v. State, 109 S.W.3d 437, 440 (Tex. Crim. App. 2003). There is no evidence in the record that would justify the inclusion of the lesser- included offenses. Each of the offenses committed became aggravated by the use of a gun. As we have discussed, the actual production of the gun used was not necessary. The evidence we have discussed above, if accepted by the jury, clearly shows the use of a gun. There is no evidence that a gun was not used in the commission of any offense committed by appellant. Perceived issue five is overruled. In his sixth perceived issue, appellant argues that he was deprived of his constitutional right to a trial jury drawn from a representative cross-section of the community and the trial court reversibly erred in failing to quash the jury panel. In his seventh perceived issue, he argues that his lawyer's failure to challenge the jury array in a sworn pleading demonstrates ineffective assistance of trial counsel. The record reveals that one venire person asserted there was only one black person on the jury list. In response to that comment, the trial court noted that while it was true there were "very few" African-Americans on the panel, the African-American population percentage of the county was "less than three percent now." To satisfy the federal Sixth Amendment right to a jury trial, that jury must be chosen from a panel representing a fair cross-section of the community. Duren v. Missouri, 439 U.S. 357, 359, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979); Castaneda v. Partida, 430 U.S. 482, 494, 97 S. Ct. 1272, 51 L. Ed. 2d 498 (1977). In Pondexter v. State, 942 S.W.2d 577 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 825, 118 S. Ct. 85, 139 L. Ed. 2d 42 (1997), the Court instructed that to establish a prima facie violation of that requirement, an appellant must show: 1) the group alleged to be excluded is a "distinctive" group in the community; 2) the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and 3) this under- representation is due to the systematic exclusion of the group in the jury selection process. Id. at 580. Appellant arguably has met the first prong of the test, i.e., the group alleged to be excluded is a "distinctive" one within the community. However, appellant has failed to meet the second and third prongs of the test. Nothing in the record is actually sufficient to show the racial composition of the panel. Moreover, assuming that there was only one African-American on the particular jury panel, there is nothing to show the requisite "systematic exclusion" of that racial group in the county of trial. A disproportionate representation in a single panel is not sufficient to demonstrate an unconstitutional systematic exclusion of distinctive racial groups. Pondexter, 942 S.W.2d at 581. Indeed, in view of the judge's statement as to the racial mix extant in the county, the paucity of African-Americans on the particular jury panel would seem to be more likely the result of the small percentage of that racial group in the county than the result of a systematic exclusionary policy. Appellant's perceived issue six is overruled. In his seventh perceived issue, appellant argues he did not receive effective assistance of counsel at trial. In the seminal case of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the Court instructs that the benchmark for judging any claim of counsel ineffectiveness must be whether his trial conduct so undermined the proper functioning of the adversarial process as to demonstrate that the trial cannot be relied upon as having produced a just result. Id. 466 U.S. at 696. That standard was pronounced applicable to all such claims in Texas by the court in Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999). The standard for showing ineffective assistance of counsel is usually stated as having two parts, i.e., attorney performance and resulting prejudice. It is usually stated as: 1) whether counsel's performance was deficient; and 2) whether, but for counsel's deficient performance, the result of the proceeding would have been different. Hernandez, 988 S.W.2d at 770, n.3. Absent both showings, we cannot conclude that appellant's conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Boyd v. State, 811 S.W.2d 105, 109 (Tex. Crim. App.), cert. denied, 502 U.S. 971, 112 S. Ct. 448, 116 L. Ed. 2d 466 (1991). Additionally, by statute, Montgomery County was required to select venires by computer from voter registration and driver's license lists. Suffice it to say, appellant has failed to meet the requisites of the Strickland test to show his trial counsel adversely affected the outcome of his trial by failing to challenge the jury venire. Appellant's seventh perceived issue is overruled. In his eighth and ninth challenges, appellant contends the trial court reversibly erred in denying his motion to suppress the in-court identification of him as the miscreant because it was the result of an impermissibly suggestive photographic lineup not entirely composed of black males and because of suggestive actions by the police at the scene. The photographic lineup received in evidence is shown as a part of the record. Although Jacqueline testified that the lineup was not composed entirely of African-American males, her identification of appellant as her assailant was firm and unweakened under cross-examination. She testified that when she had just taken the trash to the trash can, appellant put a gun to her head, and she saw "a guy and he had his gun pointed right at my face" a few inches away. When appellant told her to go into the garage, she said she could see appellant "because the light in the kitchen was still on, and since on our door that's between the kitchen and the garage, there's a window between the middle of the door, so the reflection in light from the kitchen went through the window, and there was some light in the garage." The record shows that she spoke to him when he was right in front of her and when she asked what he wanted, he was still in front of her when he grabbed his testicles. He was close to her when he tried to push her legs apart with the gun and when he hit her in the face with the gun. While the lineup may not have been composed exclusively of black males, the color of appellant's skin was not so significantly different from that of the other participants as to make him stand out. To be entitled to reversal, an appellant must show by clear and convincing evidence that the identification was irreparably tainted. See Barley v. State, 906 S.W.2d 27, 32-35 (Tex. Crim. App. 1995), cert. denied, 516 U.S. 1176, 116 S. Ct. 1271, 134 L. Ed. 2d 217 (1996). Appellant has failed to make this showing. Appellant's eighth and ninth perceived issues are overruled. In his tenth perceived issue, appellant contends the trial court reversibly erred in admitting his "juvenille [sic] court adjudication." However, in pertinent part, article 37.07 of the Code of Criminal Procedure provides that "evidence may be offered by the state and the defendant of an adjudication of delinquency based on a violation by the defendant of a penal law of the grade of: (A) a felony; or (B) a misdemeanor punishable by confinement in jail." Tex. Code Crim. Proc. Ann. art. 37.07§3(a)(1) (Vernon Supp. 2004). The State's exhibits in question reflect that appellant had been adjudicated of delinquent conduct for 1) Assault-Class A misdemeanor; 2) Theft-State Jail Felony for theft of a firearm, and 3) Criminal Mischief-Class B misdemeanor. These offenses are of a grade punishable by jail confinement and, by statute, were admissible at trial. Appellant's tenth perceived issue is overruled. In his eleventh perceived issue, appellant contends he was illegally arrested without a warrant. He bases this contention on an affidavit attached to his brief in which his mother states she never gave the officers permission to enter her home. However, no such affidavit appears in the appellate record. Thus, we cannot consider it. See Tex. R. App. P. 34.1; see also James v. State, 997 S.W.2d 898, 901 n.5 (Tex. App.-Beaumont 1999, no pet.); Brown v. State, 866 S.W.2d 675, 678 (Tex. App.-Houston [1st Dist.] 1993, pet. ref'd). Moreover, appellant testified at the hearing on the motion to suppress evidence. He admitted that he did not hear what his mother said to the officers. Additionally, Officer Keleman's testimony that appellant's mother gave him permission to enter her home was uncontradicted at trial. Appellant's eleventh perceived issue is overruled. In summary, all of appellant's perceived issues are overruled, counsel's motion to withdraw is granted, and the judgment of the trial court is affirmed. John T. Boyd Senior Justice Do not publish. 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). 2. See and compare Act of May 29, 1993, 73rd Leg., R.S., ch. 900, §1.01, 1993 Tex. Gen. Laws 3586, 3615 with Tex. Pen. Code Ann. §20.02 (Vernon 2003).

01-03-2023

09-08-2015

https://www.courtlistener.com/api/rest/v3/opinions/2907665/

Sharifi v. Young Bros IN THE TENTH COURT OF APPEALS No. 10-92-001-CV      NASSER SHARIFI,                                                                                               Appellant      v.      YOUNG BROTHERS, INC.                                                                                               Appellee From the 74th District Court McLennan County, Texas Trial Court # 89-3626-3                                                                                                      O P I N I O N                                                                                                            Article 5159a, the so-called "Texas Davis-Bacon Act," requires contractors and subcontractors employing laborers, workmen, and mechanics "in the execution of any contract or any contracts for public works" to pay the prevailing wage rate. Tex. Rev. Civ. Stat. Ann. art. 5159a, § 1 (Vernon 1987). The question presented is whether a truck driver delivering construction materials from a contractor's storage facility to a highway construction site is then employed "in the execution of [the] contract." We hold that the legislature intended such an employee to be covered by the Act. Accordingly, we reverse the summary judgment that the employee take nothing in his suit against the contractor for the difference between the wages he actually received and the prevailing wage while delivering material to the construction site.       Young Brothers, Inc., a highway construction company, employed Nasser Sharifi from 1984 until August 15, 1989. Sharifi's job was to drive a truck loaded with materials (sand, clay, and gravel) from Young Brothers' storage facility to highway construction sites, deposit the materials, and then return for another load. Young Brothers paid Sharifi an hourly wage that ranged between $4.60 and $5.50, which was less than the prevailing wage set for highway projects, but did pay him the prevailing rate for the time he was actually on the construction site moving materials. Sharifi sued Young Brothers for the difference between the wages he actually received and the wages he would have received had he been paid the prevailing rate. The court granted Young Brothers a take-nothing summary judgment on the ground that, as a matter of law, the time Sharifi spent delivering materials to the job sites was excluded from the Act's coverage.       Disposition of this appeal necessarily turns upon what the legislature intended when it enacted this portion of article 5159a in 1933: Sec. 1. Not less than the general prevailing rate of per diem wages for work of a similar character in the locality in which the work is performed, and not less than the general prevailing rate of per diem wages for legal holiday and overtime work, shall be paid to all laborers, workmen and mechanics employed by or on behalf of the State of Texas, or by or on behalf of any county, city and county, city, town, district or other political subdivision of the State, engaged in the construction of public works, exclusive of maintenance work. Laborers, workmen, and mechanics employed by contractors or subcontractors in the execution of any contract or contracts for public works with the State, or officer or public body thereof, or in the execution of any contract or contracts for public work, with any county, city and county, city, town, district or other political subdivision of this State, or any officer or public body thereof, shall be deemed to be employed upon public works. See id. (emphasis added). Specifically, we must determine what the legislature intended to be included in the phrase "in the execution of any contract." Did it intend to exclude, as Young Brothers argues, time spent delivering materials to a job site? The company bases its interpretation on case law construing the federal Davis-Bacon Act. See 40 U.S.C. § 276a(a) (West 1986); Building & Const. Trades Dept. v. Dept. of Labor, 932 F.2d 985, 990 (D.C. Cir. 1991); H.B. Zachry Company v. United States, 344 F.2d 352, 361 (Ct. Cl. 1965). Sharifi contends that an employee delivering materials to a public-works job site is engaged in the execution of the contract as much as an employee working at the job site.       The intention of the legislature must be ascertained from the language of the statute, if possible. Minton v. Frank, 545 S.W.2d 442, 445 (Tex. 1976). The legislature's manifest objective is stated in explicit language: to provide for the payment of not less than the general prevailing rate of wages on public works. See Tex. Rev. Civ. Stat. Ann. art. 5159a, § 1 (Vernon 1987).       The problem lies in the legislature's failure to define the phrase "in the execution of any contract," which is the provision limiting the statute's coverage. Because it did not define the term "execution," a word of common usage, we must give it its ordinary and common meaning. See Satterfield v. Satterfield, 448 S.W.2d 456, 459 (Tex. 1969). Black's Law Dictionary defines "execution" as "the completion, fulfillment, or perfecting of anything, or carrying it into operation and effect." Black's Law Dictionary 510 (5th ed. 1979). Based on this definition, we conclude that the legislature intended that employees delivering materials to a Texas public-works construction site be included within the coverage of the Act. Young Brothers' construction contracts could not have been completed without materials being delivered to the work site. Sharifi's work was as directly related to and as essential to completion and fulfillment of the contracts as the work of employees using the materials at the job site.       Young Brothers asserts, however, that article 5159a should be construed in the same manner as the federal Davis-Bacon Act, which requires contractors to pay prevailing wage rates to employees "employed directly upon the site of the work." See 40 U.S.C. § 276a(a) (West 1986). Case law has interpreted the federal Act as excluding employees delivering standard materials to the job site. Building & Const. Trades Dept., 932 F.2d at 990; H.B. Zachry Company, 344 F.2d at 361.       When a federal statute is adopted in a statute of this state, a presumption arises that the legislature knew and intended to adopt the construction placed on the federal statute by federal courts. State v. Klein, 154 Tex. Crim. 31, 224 S.W.2d 250, 253 (1949). This rule of construction is applicable, however, only if the state and federal acts are substantially similar and the state statute does not reflect a contrary legislative intent. Compare Klein, 224 S.W.2d at 253; Blackmon v. Hansen, 140 Tex. 536, 169 S.W.2d 962, 964-65 (1943).       After comparing the two statutes, we conclude that their coverage provisions are not substantially similar and that the legislature clearly intended to broaden the coverage of article 5159a when it selected the phrase "in the execution of any contract" rather than the phrase "employed directly upon the site of the work" found in the federal Act. The federal Act is by its plain language more restrictive in its coverage than the Texas Act. Under the circumstances, we must determine and follow the intent of the legislature when it adopted a statute with obviously broader coverage. Thus, the federal cases cited by Young Brothers are not controlling in determining the coverage of the Texas Act.       Young Brothers correctly points out that article 5159a is not applicable to every employee who has some connection with a public-works project. Obviously, a line of demarcation must be drawn at some point, but we need not attempt to definitively draw that line here. Our holding is a limited one, based upon the specific facts of this case. We hold that a truck driver is entitled to the prevailing wage rate for time spent delivering materials to a highway construction site because he is employed "in the execution of [the] contract."       We reverse the summary judgment and remand the cause for a trial.                BOB THOMAS              Chief Justice Before Justice Thomas,       Judge Cummings, and       Judge Vance Reversed and remanded Opinion filed and delivered July 22, 1992 Publish h every night that King spent the night at their home.  Mary testified that King spent the night at her house at least four nights a week from May of 2008 through his arrest for this offense in early 2009.  King does not argue that the evidence was insufficient for the jury to have found that he committed the offenses on the specific dates as alleged in the indictments, but that it was insufficient for the jury to have found that he committed the offenses in 2008.  Additionally, King did not dispute the fact that he resided in Mary’s residence fairly regularly in 2008.              King’s final contention is that the evidence was legally and factually insufficient for the jury to have found that he committed the offenses with the intent to arouse or gratify his sexual desire.  Tex. Pen. Code Ann. § 21.11(c) (Vernon 2003).  “The requisite specific intent to arouse or gratify can be inferred from the defendant’s conduct and remarks and all the surrounding circumstances.”  Villanueva v. State, 209 S.W.3d 239, 246 (Tex. App.—Waco 2006, no pet.); accord Abbott v. State, 196 S.W.3d 334, 340 (Tex. App.—Waco 2006, pet. ref'd); see Cunningham v. State, 726 S.W.2d 151, 154 (Tex. Crim. App. 1987).  The jury can infer intent to arouse or gratify sexual desire from King’s act of touching the child’s genitals.  Abbott, 196 S.W.3d at 340. We find that the jury could infer from King’s conduct of touching M.K.’s breasts and genitals that it was done with the intent to arouse and gratify his sexual desire.  See Abbott, 196 S.W.3d at 341; Fetterolf v. State, 782 S.W.2d 927, 933 (Tex. App.—Houston [14th Dist.] 1989, pet. ref’d) (requisite intent to arouse and gratify sexual desire found from defendant’s touching sleeping child’s breast).  The evidence that King committed the same conduct on other occasions is additional evidence of intent.  See Morgan v. State, 692 S.W.2d 877, 881 (Tex. Crim. App. 1985) (evidence that defendant had touched complainant in same manner on the night before the charged offense and on previous occasions had “indubitable probative value” of defendant’s intent). We find that by viewing all of the evidence in the light most favorable to the verdict that the jury could have found the essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).  Therefore, the evidence was legally sufficient.  We overrule issue one. Further, when we view the evidence in a neutral light, favoring neither party, we cannot find that the evidence was so weak that the jury’s determination is clearly wrong and manifestly unjust or that conflicting evidence so greatly outweighs the evidence supporting the conviction that the jury’s determination is manifestly unjust.  Steadman, 280 S.W.3d at 246; Watson, 204 S.W.3d at 414-15, 417.  Therefore, the evidence was also factually sufficient.  We overrule issue two. Admission of Evidence             King complains that the trial court abused its discretion in allowing an expert witness to testify as to M.K.’s credibility and in denying a motion for mistrial because that testimony had the effect of replacing the jury as the fact-finder.  We review the trial court’s decision to admit or exclude evidence under an abuse of discretion standard.  Montgomery v. State, 810 S.W.2d 372, 390-91 (Tex. Crim. App. 1990) (op. on reh'g) (“as long as the trial court’s decision was within the zone of reasonable disagreement and was correct under any theory of law applicable to the case, it must be upheld”).                 King complains of several different segments of testimony given by M.K.’s therapist that he contends violated Rule 704 of the Rules of Evidence.  Rule 704 states that “[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.”  Tex. R. Evid. 704.  King contends that in certain segments of her testimony, the therapist improperly gave the opinion that M.K. was truthful in her allegations, that she stated that sexual abuse had in fact occurred, and that she referred to King inappropriately as the “perpetrator.”             King first complains about the following question asked by the State:  “I believe you mentioned trauma, that you believed she had experienced some trauma.  How did you know that?”  King objected to the question and the objection was sustained.  However, King did not request a limiting instruction or seek any further relief from the trial court.  The second question King complains about is the following question by the State:  “What do you believe she was not faking about?”  King objected, but no ruling was made by the trial court because the State offered to rephrase the question.  In order to preserve error, the party asserting an objection must pursue the matter to the point of receiving an adverse ruling from the trial court.  Tucker v. State, 990 S.W.2d 261, 262 (Tex. Crim. App. 1999).  The proper method of pursuing an objection to an adverse ruling has three parts.  They are: (1) object and, if the objection is sustained; (2) request an instruction to disregard and, if granted; (3) move for a mistrial.  Fuller v. State, 827 S.W.2d 919, 926 (Tex. Crim. App. 1992).              King also complains of an answer given by the therapist in response to questions from the State regarding her diagnosis of sexual abuse of a child relating to M.K.  The State asked the therapist:  “What things did you see in your sessions that you felt justified in putting that label on her, so to speak?”  The therapist responded:  “The only way that that can be diagnosed is if that’s the presenting problem for the child.  And for [M.K.] that was the only reason I was seeing her is because there was sexual abuse.”  King objected, and the trial court sustained the objection and gave an instruction to the jury to disregard the last part of the answer.  King’s motion for mistrial was denied.             Additionally, King complains of an answer given in response to a question regarding M.K.’s progress in counseling where the therapist stated:  “I feel like [M.K.] was able to continue to move forward because she has such a strong family background and support.  I also believe because the person that perpetrated this abuse was no longer in her home.”  King objected, and the trial court sustained the objection and gave an instruction to the jury to disregard the last part of the answer.  King’s motion for mistrial based on the statement and the testimony as a whole was denied. The next question from the State was whether M.K. had identified “the perpetrator, the person that she said came in and touched her,” which was answered affirmatively.  The State then asked, “And were you aware that the perpetrator was out of the home?”  This was also answered affirmatively.  King then objected on the basis of rule 704.  The trial court overruled King’s objections.  In order to preserve error, an objection should be made as soon as the ground for objection becomes apparent.  Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App. 1997).  Generally, this occurs when the evidence is admitted.  Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995).  If a party fails to object until after an objectionable question has been asked and answered, and he can show no legitimate reason to justify the delay, his objection is untimely and error is waived.  Id.  In this instance, King waited until after both objectionable questions had been asked and answered.  King has provided no reason to justify his delay in objecting. The two properly preserved objections to the testimony of M.K.’s therapist are based on the trial court’s purported abuse of discretion in failing to grant King’s motion for mistrial, which was the only adverse ruling made by the trial court against King in each instance.  Mistrial is appropriate for only “highly prejudicial and incurable errors,” and “may be used to end trial proceedings when faced with error so prejudicial that ‘expenditure of further time and expense would be wasteful and futile.’”  Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004); Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003) (quoting Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000)).  The trial court promptly instructed the jury to disregard the objected-to testimony both times when requested as described above.  See Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000) (“Ordinarily, a prompt instruction to disregard will cure error associated with an improper question and answer.”).  When a trial court instructs a jury to disregard certain testimony, we presume that the jury follows the trial court’s instructions.  Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999); cf. Wood, 18 S.W.3d at 648 (noting that a trial court is required to grant a motion for mistrial only when the improper question is “clearly so prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors.”).  After reviewing the record, we cannot conclude that the jury did not follow the trial court’s instructions to disregard the witness’s references.  This is especially true in light of the fact that during the re-direct examination by the State, the therapist testified without objection that M.K. did not appear to be malingering or lying about what she had told the therapist without objection by King.  M.K. had clearly identified King as the person who had touched her.  Additionally, we have determined that the other objection to the use of the term “perpetrator” referring to King was not timely and was waived.  We find that the trial court did not abuse its discretion in denying either of the above motions for mistrial.              King further contends that the trial court abused its discretion by not striking the therapist’s testimony in its entirety because of the cumulative nature of the errors.  In this regard, King presents no authority to support his argument that the testimony should have been stricken in its entirety.  Citation to authorities is required in order to properly present an issue to this Court.  Tex. R. App. P. 38.1.  This portion of his issue is inadequately briefed and is therefore, waived.  See Tex. R. App. P. 38.1(h).  We overrule issue three. Removal of Juror               King complains that the trial court erred by removing a juror during the trial, which resulted in a verdict by only eleven jurors.  King contends that the juror was not disabled, and therefore the trial court abused its discretion in removing the twelfth juror.  During voir dire, Kamia Davis admitted to knowing King, M.K., and Mary, but only on an informal basis.  Davis affirmed that she could be impartial if selected as a juror.  Davis was impaneled as a juror.             On the first day of testimony, the State presented a witness who testified outside of the presence of the jury that he knew both King and Davis, and had smoked marijuana with them on two occasions approximately one year prior to the trial.  There were five or six persons present each time.  The trial court questioned Davis in camera and Davis denied smoking marijuana with King and stood by her answers given during voir dire.  The trial court took no further action at that time.             The next day, the State presented two more witnesses, who were questioned by the trial court as to the relationship between King and Davis.  The first witness, worked with another prospective juror who had told her about Davis’s denial of a relationship with King.  The witness testified that she had personally seen King and Davis together under a tree, which was a local gathering spot for smoking and drinking in a group of 15-20 people, although she did not know if King and Davis had a conversation or were together.  The witness stated that she observed them at the tree “just virtually daily” before King was arrested for these offenses.             The prospective juror who had spoken with the first witness about Davis and King had never met King, but had heard of him as she lived in the same town as he did.  At a break, the prospective juror asked Davis if she knew King, and Davis said that she did know him, that he was Mary’s John.  Davis told the prospective juror that King’s current girlfriend, Shae, had approached Davis and told her, “Don’t find my baby guilty.”  Davis told the prospective juror that she had kept walking like she did not hear Shae’s comment.             Davis and the prospective juror went to lunch together on a break during voir dire.  Davis told the prospective juror that she knew him more than what she was letting the trial court know.  Davis told her that one day King had stalked a little girl who was about twelve years old, which was reported by the child’s father to the sheriff’s department.  Although King could not be arrested, he was told he could not be in a school zone.  Davis also told the prospective juror that King had told her that he had gone to another city and slept with another girl and that the little girl he had slept with was his biological child.  The prospective juror stated that Davis told her that King had personally said that he had done that, and that it wasn’t something she had heard from someone else.  The prospective juror did not know King, nor had she been around the tree.  During voir dire, this prospective juror had stated that she did not feel that she could be impartial because of the rumors she had heard about King. The trial court found that Davis was disabled because of bias, and discharged her from the jury.  King objected to the dismissal but did not request a mistrial.  Based upon our review of the record, we hold that the trial court did not abuse its discretion by determining that juror Davis was disabled as that term is used in Article 36.29.  We overrule issue four. Jury Charge Error  King complains that the trial court erred in the submission of the application paragraph of the charge because it improperly set forth the mens rea required for conviction in that it allowed the jury to convict him of indecency with a child for “intentionally or knowingly” engaging in sexual contact with M.K., although the proper mens rea for the offense is the specific intent “to arouse or gratify the sexual desire of any person.”  Tex. Pen. Code Ann. § 21.11(c) (Vernon Supp. 2009). Standard of Review It is undisputed that King did not object to the charge on this basis.  Because there was no objection made to the charge by King, we must first determine whether the charge as submitted to the jury was erroneous and if so, we must then analyze this complaint utilizing the standard of Almanza v. State.  Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008) (citing Olivas v. State, 202 S.W.3d 137, 143-44 (Tex. Crim. App. 2006), citing Almanza, 686 S.W.2d 157 (Tex. Crim. App. 1985)).  Under Almanza, unobjected-to jury charge error will not result in reversal of a conviction in the absence of “egregious harm.”  Almanza, 686 S.W.2d at 171.  In examining the record for egregious harm, we consider the entire jury charge, the state of the evidence, the final arguments of the parties, and any other relevant information revealed by the record of the trial as a whole.  Olivas, 202 S.W.3d at 144.  Jury charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory.  Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007); Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006). Applicable Statutes The elements of indecency with a child are that the accused (1) engaged in “sexual contact,” (2) with a child, (3) younger than seventeen years of age, (4) whether the child is of the same or opposite sex.  See id. § 21.11(a)(1).  “Sexual contact” means the following acts, if committed with the intent to arouse or gratify the sexual desire of any person: (1) any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; or (2) any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person.  Id. § 21.11(c). Analysis In this case, the abstract portion of the jury charge provided: “Our law provides that a person commits an offense if, with a child younger than 17 years old and not his spouse, whether the child is the same or opposite sex, he engages in sexual contact with the child.”  It also defined “sexual contact” as “any touching of any part of the genitals or breasts of another person with intent to arouse or gratify the sexual desire of any person.”  Although the abstract portion of the charge did not use the terms “intentionally” or “knowingly” in defining the applicable substantive law, it included full statutory definitions of “intentionally” and “knowingly.” The application portion of the jury charge allowed the jury to convict King of indecency with a child if it found beyond a reasonable doubt that “with the intent to arouse or gratify [his] sexual desire, [he] . . . intentionally or knowingly engage[d] in sexual contact with M.K. by touching her breasts and genitals” on ten separate dates, each constituting a separate offense. Because the application paragraph disjunctively listed the culpable mental states of “intentionally” and “knowingly” with the specific intent necessary to complete the offense, the jury could have convicted King without consideration of whether he acted with the proper mens rea required by the statute, which constitutes charge error.  Bazanes v. State, 310 S.W.3d 32, 37 (Tex. App.—Fort Worth 2010, pet. ref’d); see Jones v. State, 229 S.W.3d 489, 492 (Tex. App.—Texarkana 2007, no pet.) (finding error when charge “stated that indecency with a child is committed if the person intentionally or knowingly engages in sexual contact with a child”); see also Rodriguez v. State, 24 S.W.3d 499, 502 (Tex. App.—Corpus Christi 2000, pet. ref'd).  Therefore, we will review the record to determine whether this error could have caused egregious harm to King, considering the entire jury charge, the state of the evidence, the argument of counsel, and any other relevant information revealed by the record of the trial as a whole.  See Olivas, 202 S.W.3d at 144; Almanza, 686 S.W.2d at 171. The Entire Jury Charge             The jury charge was otherwise unexceptional.  The abstract portion of the charge correctly set forth the definition of indecency of a child without including the improper “intentionally” or “knowingly.”  The jury charge as a whole lessens any potential harm suffered by King. The State of the Evidence  Regarding the state of the evidence, the primary contested issue at trial was whether M.K.’s testimony was credible.  As we explained more fully in addressing King’s sufficiency of the evidence issues above, the specific intent required for the offense of indecency with a child may be inferred from King’s conduct, his remarks, and all of the surrounding circumstances—specifically including M.K.’s testimony.  See McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. [Panel Op.] 1981).  The jury, as the sole judge of the credibility of the witnesses and the weight to be given their testimony, could have inferred that King had the intent to arouse or gratify his sexual desire from M.K.’s testimony about the incidents.  See id. Arguments of Counsel             Neither party discussed the precise elements as listed in the charge during their closing arguments.  We find nothing in the closing arguments by either the State or King that indicates that King was harmed by the error. Other Information in the Trial as a Whole             After a review of the record, we note that the indictments track the same objectionable language as the charge; however, King did not challenge the indictment.  Any potential error in the indictment was therefore, waived.  See Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005).  The use of the phrase “intentionally and knowingly” was used intermittently during voir dire during the description of the offense by both the State and King.  The State’s opening statement did not include that reference but cited the statute correctly.  King did not refer to it at all during his opening statement.  We do not find that the trial as a whole more than minimally increased any potential harm to King.             We do not find that King was egregiously harmed by the erroneous inclusion of the terms “intentionally and knowingly” in the jury charge.  We overrule issue five. Conclusion             We find that the evidence was both legally and factually sufficient for the jury to have found King guilty of the offenses.  We find that the trial court did not abuse its discretion in the admission of the testimony of the therapist.  We find that the trial court did not abuse its discretion in the discharge of juror Davis.  We find that while there was error in the jury charge, King was not egregiously harmed by that error.  We affirm the judgments of the trial court.                                                                           TOM GRAY                                                                         Chief Justice   Before Chief Justice Gray,             Justice Reyna, and             Justice Davis Affirmed Opinion delivered and filed September 1, 2010 Do not publish [CRPM]

01-03-2023

09-10-2015

https://www.courtlistener.com/api/rest/v3/opinions/3448163/

Affirming. This is an appeal from a judgment of the Franklin Circuit Court affirming a judgment and award of the Workmen's Compensation Board denying claimants any recovery for the death of Prentice Marion. The judgment of the full Board had upheld the recommendation of the referee denying an award to claimants. Thus with three strikes already against them and with an acknowledgment of the reluctance of this Court, as expressed in so many of its opinions, to disturb findings of fact made by the Workmen's Compensation Board, appellants nevertheless prosecute this appeal, earnestly contending that the record presents mistakes of law as applied to the facts which must be corrected by this Court. Facts in the Case. Prentice Marion was employed as a laborer by appellee; both had accepted the provisions of the Compensation Law and his wages were sufficient to entitle him to maximum compensation if he is entitled to any. Among Marion's duties was the handling of sacks of cement weighing about 100 pounds each. He entered the King's Daughters Hospital on September 26, 1944, and died on October 6, 1944, from an abdominal abscess which ruptured into his stomach or abdominal cavity. The main question in the case is whether that fatal abscess was the result of natural causes, as contended by appellee, or whether it was caused by traumatic injury arising out of and in the course of his employment, as contended by appellant. There is no direct proof of *Page 745 any traumatic injury sustained by Marion in connection with his work. To establish their case, appellants had to rely largely on the testimony of his fellow workers that he was apparently a stout, healthy man; that they had never heard him complain of any illness; that he had told them that he had hurt himself lifting cement sacks. They also relied on the testimony of a woman to whom deceased was later married, and of the mother and sister of that woman, that some time in the summer of 1944, when they were all sitting on the porch of the mother, Marion stopped and sat down on the porch; that he looked pale and said that he had hurt himself down at the place where he worked, at Messers. The two foremen under whom Marion worked testified for appellee that they never knew of any accident sustained by Marion while in the employ of appellee and that he had never told them of any accident he had had while working there. Medical Testimony. The medical testimony in the case was given by Dr. Grace Snyder and Dr. E.K. Martin for the plaintiffs and Dr. L.T. Minish for the defendant. The testimony of Dr. Snyder is of little probative value in this case. She is a specialist in diseases of the ear, eye, nose and throat, and this is not in her line. She did not attend deceased professionally but happened to see him lying on a cot in a little dwelling in Gaines Alley where she went seeking someone to do some work for her. She had no medical kit or instruments with her and made no physical examination. From a cursory examination he appeared to her to be a sick man and she was instrumental in getting him to the hospital. Her testimony was indefinite but in response to the question, "Did he give you a history of the injury?" she replied, "Yes, I am sure he did. I am sure he told me either he lifted something heavy or something heavy fell on him or he fell — I have so many accidents, it is a little hard for me to remember." She testified that an abscess could be caused by a bruise from an injury. Dr. Minish, for the appellee, testified in substance that he had made a limited examination of deceased in his office, about September 23, 1944, and found a large *Page 746 mass in the upper left side of the abdomen but he could not say what it was; that abscesses sometimes result from injuries and could be caused by trauma or preexisting diseases; that he found no indication that the mass he found was caused by trauma; that an abscess caused by trauma would ordinarily rupture on the outside; that he did not notice any discoloration around the abscess such as would usually come from a traumatic injury, but he could not say positively whether trauma did or did not cause the abscess; that deceased gave him no history of the case and told him nothing about having been injured; that if the mass he found was an abscess, the normal treatment would have been to open and drain out the pus and that such an operation might have saved his life; that he thought the case called for surgery and he, being a general practitioner, dropped the case. Dr. E.K. Martin, for the appellants, testified in substance that he examined the deceased in the hospital shortly after he entered; that he found a soft, swollen mass on his upper left abdomen about the size of the palm of his hand, surrounded by a certain amount of induration, with some redness and a bluish tinge; that he diagnosed it as an abscess on the abdominal wall but that he did not know what caused it. On cross examination, he testified that abscesses result from injuries which become localized and can be brought about by bruises or pre-existing diseases; that there was no way to tell what might have caused this particular abscess; that death was caused by rupture of the abscess into the abdominal cavity; that an abscess caused by traumatic injury would probably rupture on the outside and the fact that it ruptured on the inside would, he admitted, indicate it came from a pre-existing disease though it was possible to have ruptured either way regardless of the original cause; that an abscess is not usually fatal and if this one had had early medical attention and proper operation, the life of the deceased could have been saved. Dr. Martin filled out and signed the death certificate on October 12, 1944, which shows that Prentice Marion died on October 6, 1944, and the pertinent part of the certificate is as follows: "Immediate cause of death: Gastric hemorrhage. *Page 747 Due to abd. wall abscess which ruptured through into stomach. "Other conditions "Major findings: "Of operations: No. "Of autopsy: No. "22. If death was due to external cause, fill in the following: "(a) Accident, suicide, or homicide (specify): Trauma fromcarrying cement. "(b) Date of occurrence "(c) Where did injury occur: In or about home, on farm, in industrial place, in public place? Industrial Place. While at work X (e) Means of injury." (Italics ours) It was largely on this certificate, together with a part of the testimony of Dr. Snyder, that appellants based this appeal and their reliance for reversal of the judgment of the lower court upholding the decision of the Board. The Board accepted as competent testimony so much of the certificate as related to the matters about which Dr. Martin would know as a physician and from his examination of the deceased. It, therefore, accepted the doctor's statement in the certificate that death was caused by "Gastric hemorrhage due to abdominal wall abscess which ruptured through the stomach." The basis for the acceptance of this part of the certificate was that it was filled in, as shown from the doctor's testimony, from his own knowledge of the immediate cause of death based upon his examination and treatment of the deceased. The Board rejected the statements in this certificate that death was due to "trauma from carrying cement" and that the injury occurred in an "industrial place" while at work. The basis for the rejection of this part of the certificate, based on the doctor's testimony, was that it was not filled in from any information he received from the examination or treatment of the patient or from his own knowledge, but from what was told him by the deceased. With the rejection by the Board of that part of the certificate relating to the external *Page 748 cause of injury as traumatic and the place as an industrial place, it held that there was not sufficient competent evidence to sustain the burden of proof imposed by law on plaintiffs and denied them recovery. Appellants, in their brief, apparently concede that the testimony of the lay witnesses, concerning statements of the deceased as to the cause of his injuries, is incompetent and cannot be considered by the Board as a basis for any finding that his injury arose out of and in the course of employment. Clearly such evidence was hearsay and had no probative value. They insist, however, that that part of the testimony of Dr. Snyder in which she relates the history of the injury as caused from lifting sacks of cement, as told to her by deceased, and that part of the death certificate signed by Dr. Martin showing that death resulted from trauma from carrying cement at his place of employment, is some evidence that the deceased was so injured and that in rejecting such testimony, the Board entirely ignored the only direct evidence as to the cause of decedent's death. For the reasons heretofore indicated, Dr. Snyder's testimony as to what was told her by deceased as the cause of his injury was properly excluded. Since she was not treating him professionally and made no physical examination as a doctor, her testimony was on the same basis as any lay witness and was properly rejected by the Board as mere hearsay evidence on the authority, cited by it, of Louisville N. R. Co. v. Scalf,155 Ky. 273, 159 S.W. 804, in which this Court held that so much of the testimony of a witness as relates to what was said by the injured person to the witness with respect to the manner of receiving her injuries and concerning her suffering, was incompetent and should be excluded. A somewhat different rule applies in statements made to an attending physician in order to enable him to diagnose the case and to aid him in determining the nature of the injury and to prescribe a remedy or treatment. The reasons for the ruling, its extent and limitations, as applied to medical testimony, is well set out in Shade's Adm'r v. Covington-C. Elevated R. Transfer Bridge Co., 119 Ky. 592, 84 S.W. 733, quoted in the Scalf case supra, and will not be repeated here. *Page 749 Neither Dr. Minish nor Dr. Martin, when testifying as witnesses in the case, stated that any history of the case was given to them by deceased or that he indicated that he had been injured by any accident such as, in medical terms, would be called "trauma." However, in the death certificate Dr. Martin, in filling out the blanks on the form, does specify, as shown in the italicized words in the certificate copied above, "trauma from carrying cement" and "industrial place" as showing how and where the injury occurred. Upon the recall of Dr. Martin on cross examination concerning this death certificate, he said that his information with reference to the family history of decedent and the words, "trauma from carrying cement" and the words, "industrial place" were based entirely on what deceased told him and were not based on any examination which he made of deceased or of his own knowledge. The Death Certificate. The question then arises: To what extent is this death certificate admissible to establish the fact that the abscess which caused decedent's death resulted from a traumatic injury caused from carrying cement at appellee's place where he worked? Section 213.190 KRS provides that the certificate of death shall be prima facie evidence in all courts and places of facts therein stated. Construing this statute in Kentucky Home Mut. Life Ins. Co. v. Watts, 298 Ky. 471, 183 S.W.2d 499,502, this Court said: "It will be noted that the Statute provides that the certificate of death shall be prima facie evidence only of facts appearing in the certificate. Then, what are the facts appearing in the certificate to be given such great weight? Certainly, the Legislature did not mean that an opinion of the person making out the death certificate should be given any greater weight than the opinion of any other person, or even as great weight as the opinion of a person or group of persons who were in position to consider all the evidence in respect to the circumstances provable in a court of law. It is a matter of common knowledge that some death certificates are filled in and signed by coroners, or attending physicians without in investigation, or without any basis, other than mere suspicion, upon which to determine the manner in *Page 750 which the deceased arrived at his death. It is likewise a fact that coroners oftentimes fill out death certificates without holding an inquest; and it is almost invariably true that when an inquest is held, little evidence is introduced before the coroner's jury. That being true, the statement in the certificate that death was the result of suicide does not constitute a fact within the contemplation of the Legislature, but a mere opinion of one who likely did not have knowledge of all the circumstances surrounding the death. The fact concerning the cause of death in the certificate which was contemplated by the Legislature is the fact that the deceased came to his death by a gunshot wound, the words 'self-inflicted' and 'suicide' being mere expressions of the opinion of the person filling out the certificate. * * * "And so, under the Statute, the certificate of death is admissible for the purposes of evidencing the identity of the deceased and the fact that his death was caused by a gunshot wound, but is not admissible as evidence in respect to the issue of accidental death or suicide." Attorneys for appellants, in their brief, concede that the words, "from carrying cement in an industrial place" are not prima facie evidence of facts, as the doctor who filled out the certificate could not have obtained that information from his personal observation of the patient and could only have received it from a history given him by the patient. But they insist that that part of the statement in the certificate to the effect that the injury was caused by trauma is prima facie evidence. The doctor who made out the certificate received the information from the same source as he received the other rejected words quoted above, "from carrying cement in an industrial place," to-wit, from the deceased and not from his own examination as the following testimony shows: "Q-23. The description as to the immediate cause of death was from your knowledge based on the examination and treatment which you made of Prentice Marion? A. That's right. "Q.-24. At question 22 in the certificate there are the words 'trauma from carrying cement,' how did you get the information for that answer. A. I think that again was from him. *Page 751 "Q.-25. Was this statement 'trauma from carrying cement' based entirely on the information you received from the decedent? A. Yes, I would say so. "Q-26. And no part of this answer was based on any examination or treatment or anything revealed by your examination or treatment of the decedent? A. No. "Q-27. I will ask you whether that same state of facts is true for the words 'industrial place' appearing in answer to sub-section c of question 22 of the certificate. A. I can't answer that. (Witness was shown copy of death certificate) That 'industrial place' is based on what he told me, that the thing originated from where he worked." In a proper case an attending physician may give as substantive evidence, with opportunity for cross examination, what the injured party may have said to him as to the cause of an injury, to aid him in determining the nature of the injury so he can prescribe a treatment. This to be admitted as part of the res gestae. It rests logically upon the necessity of the case but it must stop with the necessity for it. Shade's Adm'r v. Covington-C. Elevated R. Transfer Bridge Co., supra. It does not follow that a death certificate filled in and signed by attending physicians, often without investigation or without any basis other than mere suspicion, will be admitted as prima facie evidence upon which to determine the manner in which the deceased met his death. To the extent that such a certificate is based on facts within the personal knowledge of the physician, based upon his examination of a patient, it may be prima facie evidence. To the extent that it is based on information received by the physician from the patient, it would not be. We do not think the Board committed an error of law in refusing to accept this part of the death certificate as competent evidence as to the cause of death, especially in this case when the same doctor who filled out the certificate testified in conflict therewith as follows: "Q-17. You don't know what caused that? (abscess on the abdominal wall) A. No, I don't know what caused it — no." Conclusion. In their brief, appellants cite and rely on a number *Page 752 of cases in which this Court has upheld the award of the Workmen's Compensation Board in close cases and in which the evidence produced before the Board was largely circumstantial. Such cases as Big Elkhorn Coal Co. v. Burke, 206 Ky. 489,267 S.W. 142; Raymond Contracting Co. v. Little, 255 Ky. 461,74 S.W.2d 926; Black Mountain Corporation v. Humphrey, 211 Ky. 533, 277 S.W. 833; Codell Const. Co. v. Neal, 258 Ky. 603,80 S.W.2d 530; Wisconsin Coal Corporation v. Haddix, 280 Ky. 676, 134 S.W.2d 232, and Coleman Mining Co. v. Wicks, 213 Ky. 134, 280 S.W. 936. The situation in all of these cases is the opposite from what we have here in that in all of them this Court upheld the award of the Board because there was some evidence of probative value to sustain the award, even though that evidence was circumstantial. In the present case the referee and the full Board found that there was no evidence of probative value to justify a finding that Prentice Marion's death was caused by any accident that arose out of and in the course of his employment. The Board's decision was upheld by the Circuit Court and must be upheld here unless appellant can show an error of law was committed or that there was no evidence of probative value to sustain it. It is not the province of this Court to re-examine the proof as we do in an equity case and to reach such conclusions therefrom as we think the evidence establishes. We are confined on appeal to an examination of whether or not there is any substantial evidence to support the Board's findings of fact and are not at liberty to weigh the evidence adduced. With this limitation on our power and duties in mind, we have carefully read the evidence adduced by the claimants to their claim and from it we cannot say that the Board was not justified in its conclusion that the claimants had failed to establish by any substantial evidence of probative value that the death of Marion was caused by injury or accident arising out of and in the course of his employment and therefore not compensable. Wherefore, the judgment of the lower court which upheld the decision of the Board is affirmed. Judgment affirmed. *Page 753

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/7433301/

Habeas corpus denied without opinion.

01-03-2023

07-29-2022

https://www.courtlistener.com/api/rest/v3/opinions/127738/

537 U.S. 1234 KHANv.WHITE ET AL. No. 02-1083. Supreme Court of United States. March 3, 2003. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT. 2 C. A. 10th Cir. Certiorari denied. Reported below: 35 Fed. Appx. 849.

01-03-2023

04-28-2010

https://www.courtlistener.com/api/rest/v3/opinions/2898745/

NO. 07-08-0461-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B SEPTEMBER 14, 2009                                        ______________________________ ROBERT LEE CASTELLON, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 251ST DISTRICT COURT OF POTTER COUNTY; NO. 57,953-C; HONORABLE ANA ESTEVEZ, JUDGE _______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. OPINION           Appellant, Robert Lee Castellon, was convicted of aggravated assault with a deadly weapon. Appellant was sentenced to serve 20 years confinement in the Institutional Division of the Texas Department of Criminal Justice (ID-TDCJ). By a single issue, appellant contends that the trial court committed reversible error when it did not sua sponte instruct the jury on the lesser-included charge of deadly conduct. Disagreeing with appellant’s contention, we affirm. Factual and Procedural Background           Appellant does not contest the sufficiency of the evidence, therefore, we will only address so much of the factual background as is necessary for our opinion. Appellant and Mellissa Loya, one of the daughters of the complaining witness, Leobardo Loya, were living together with their child. Their relationship had been somewhat tumultuous. On the evening in question, Mellissa had spoken on the telephone with appellant and, during the conversation, appellant advised Mellissa that she should go to her parent’s home. Mellissa proceeded to her parent’s home, and appellant arrived in his SUV. Mellissa and appellant began to have an argument when Leobardo, who had been observing from the sidewalk, started toward the SUV. Appellant got in his truck and started leaving and, when he got approximately a half a block down the street, turned around and came back toward Leobardo’s home jumping the curb in his SUV and driving toward Mellissa and Leobardo. The SUV ran into some large flower pots immediately in front of Leobardo and stopped. Appellant backed out rapidly and drove off, apparently going around the block. He reappeared and drove onto the lawn a second time. Again, appellant drove his vehicle toward Mellissa and Leobardo, this time stopping when his windshield struck a branch on a tree in the yard.           As a result of this activity, appellant was indicted for aggravated assault with a deadly weapon. The vehicle was the alleged deadly weapon. At the conclusion of the evidence at trial, the trial court prepared a charge to the jury on the law. The charge included a charge on the indicted offense of aggravated assault with a deadly weapon and simple assault. At the conference with the attorneys, appellant’s trial counsel made no objection to the proposed charge nor did trial counsel request a charge on the lesser-included offense of deadly conduct. The jury subsequently found appellant guilty of aggravated assault with a deadly weapon and assessed his punishment at confinement in the ID-TDCJ for 20 years. Appellant now complains of the failure of the trial court to include, sua sponte, a charge on deadly conduct. We will affirm. Analysis           Appellant’s entire analysis is based upon the assumption that the trial court has a sua sponte duty to charge the jury on a lesser-included offense, even though there was neither objection to the charge nor request for such charge. Appellant asserts that the trial court’s duty arises under the general requirements of article 36.14 of the Texas Code of Criminal Procedure. According to appellant, even though no objection was lodged at trial, the action of the trial court in not granting the lesser-included charge sua sponte is reviewed by an appellate court under an egregious harm standard as set forth in Ngo v. State. See Ngo v. State, 175 S.W.3d 738, 743-44 (Tex.Crim.App. 2005). The Ngo opinion cites to Almanza v. State, which is the seminal opinion on charge error. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985). Almanza determined that if a defendant failed to object to the trial court’s omission or erroneous description of “the law applicable to the case” in the court’s charge, that failure could result in reversible error if the error caused egregious harm to the defendant.           However, as the Texas Court of Criminal Appeals noted in Delgado v. State, Almanza did not address the question of who is responsible for deciding what is “the law applicable to the case.” Delgado v. State, 235 S.W.3d 244, 249 (Tex.Crim.App. 2007). Delgado answers the question by stating that, obviously, it is the trial judge who is responsible for the accuracy of the charge and accompanying instructions and, further, the trial judge has an absolute sua sponte duty to prepare a charge that accurately sets out law applicable to specific offense charged. Id. The court’s choice of words “specific offense charged” was not simply fortuitous, as was demonstrated when discussing other matters contained in the charge. The requirement for deciding what is the law applicable to the case, however, does not translate to a like duty to sua sponte instruct a jury on all potential defensive issues, lesser-included offenses, or evidentiary issues. Id. The court explained that those types of enumerated issues often depend upon trial strategy and tactics. Id. (citing Posey v. State, 966 S.W.2d 57, 63 (Tex.Crim.App. 1998)). These issues are better left to the attorney and the client and are not, therefore, the “law applicable to the case,” as that phrase has been used. Id. at 250-51 (citing 43 George E. Dix & Robert O. Dawson, Criminal Practice and Procedure § 36.50 at 201 (Supp. 2006)). Thus, in order to preserve this type of issue for appeal, an objection to the charge or a request for a charge must be made. Id. The failure to object to charge omissions of this type results in the error being waived. Darnes v. State, 118 S.W.3d 916, 921 (Tex.App.–Amarillo 2003, pet. ref’d).           In the case before the court, the alleged charge error required an objection to the failure to include the lesser-included charge or a requested lesser-included charge. Neither were presented by trial counsel. The alleged error was not preserved for appeal. Id. Accordingly, appellant’s issue is overruled. Conclusion           Having overruled appellant’s single issue, we affirm the trial court’s judgment.                                                                              Mackey K. Hancock                                                                                       Justice Publish. iv.MsoNormal {mso-style-unhide:no; mso-style-qformat:yes; mso-style-parent:""; margin-top:0in; margin-right:0in; margin-bottom:10.0pt; margin-left:0in; line-height:115%; mso-pagination:widow-orphan; font-size:11.0pt; font-family:"Calibri","sans-serif"; mso-ascii-font-family:Calibri; mso-ascii-theme-font:minor-latin; mso-fareast-font-family:Calibri; mso-fareast-theme-font:minor-latin; mso-hansi-font-family:Calibri; mso-hansi-theme-font:minor-latin; mso-bidi-font-family:"Times New Roman"; mso-bidi-theme-font:minor-bidi;} p.MsoHeader, li.MsoHeader, div.MsoHeader {mso-style-noshow:yes; mso-style-priority:99; mso-style-link:"Header Char"; margin-top:0in; margin-right:0in; margin-bottom:10.0pt; margin-left:0in; line-height:115%; mso-pagination:widow-orphan; tab-stops:center 3.25in right 6.5in; font-size:11.0pt; font-family:"Arial","sans-serif"; mso-fareast-font-family:Arial; mso-bidi-language:EN-US;} p.MsoFooter, li.MsoFooter, div.MsoFooter {mso-style-priority:99; mso-style-link:"Footer Char"; margin-top:0in; margin-right:0in; margin-bottom:10.0pt; margin-left:0in; line-height:115%; mso-pagination:widow-orphan; tab-stops:center 3.25in right 6.5in; font-size:11.0pt; font-family:"Arial","sans-serif"; mso-fareast-font-family:Arial; mso-bidi-language:EN-US;} span.HeaderChar {mso-style-name:"Header Char"; mso-style-noshow:yes; mso-style-priority:99; mso-style-unhide:no; mso-style-locked:yes; mso-style-link:Header; font-family:"Arial","sans-serif"; mso-ascii-font-family:Arial; mso-fareast-font-family:Arial; mso-hansi-font-family:Arial; mso-bidi-font-family:Arial; mso-bidi-language:EN-US;} span.FooterChar {mso-style-name:"Footer Char"; mso-style-priority:99; mso-style-unhide:no; mso-style-locked:yes; mso-style-link:Footer; font-family:"Arial","sans-serif"; mso-ascii-font-family:Arial; mso-fareast-font-family:Arial; mso-hansi-font-family:Arial; mso-bidi-font-family:Arial; mso-bidi-language:EN-US;} span.SpellE {mso-style-name:""; mso-spl-e:yes;} .MsoChpDefault {mso-style-type:export-only; mso-default-props:yes; mso-ascii-font-family:Calibri; mso-ascii-theme-font:minor-latin; mso-fareast-font-family:Calibri; mso-fareast-theme-font:minor-latin; mso-hansi-font-family:Calibri; mso-hansi-theme-font:minor-latin; mso-bidi-font-family:"Times New Roman"; mso-bidi-theme-font:minor-bidi;} .MsoPapDefault {mso-style-type:export-only; margin-bottom:10.0pt; line-height:115%;} /* Page Definitions */ @page {mso-footnote-separator:url("07-10-0107.cv%20order\(no%20judgment\)_files/header.htm") fs; mso-footnote-continuation-separator:url("07-10-0107.cv%20order\(no%20judgment\)_files/header.htm") fcs; mso-endnote-separator:url("07-10-0107.cv%20order\(no%20judgment\)_files/header.htm") es; mso-endnote-continuation-separator:url("07-10-0107.cv%20order\(no%20judgment\)_files/header.htm") ecs;} @page Section1 {size:8.5in 11.0in; margin:1.0in 1.0in 1.0in 1.0in; mso-header-margin:.5in; mso-footer-margin:.5in; mso-title-page:yes; mso-footer:url("07-10-0107.cv%20order\(no%20judgment\)_files/header.htm") f1; mso-paper-source:0;} div.Section1 {page:Section1;} --> NO. 07-10-0107-CV   IN THE COURT OF APPEALS   FOR THE SEVENTH DISTRICT OF TEXAS   AT AMARILLO   PANEL B   JUNE 23, 2010     JIM JONES TRIGG, JR., Attorney in Fact For MARY JANE TRIGG,                                                                                            Appellant v.   PATTI T. MOORE,                                                                                           Appellee _____________________________   FROM THE 423RD DISTRICT COURT OF BASTROP COUNTY;   NO. 423,500; HONORABLE CHRISTOPHER DARROW DUGGAN, PRESIDING     Order     Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.   Pending before the court is Pattie T. Moore’s motion to dismiss the appeal of Jim Jones Trigg, Jr., as attorney in fact for Mary Jane Trigg.  We deny it.             Moore requests dismissal because Trigg moved to non-suit his original petition against Moore, sought to withdraw the non-suit, and filed a second action allegedly involving the same claims and parties.  However, she fails to cite us to any authority, much less authority holding that an appeal can be dismissed simply because it emanates from a non-suit of a claim that has been re-filed.  Nor do we find any want of jurisdiction for the notice of appeal was perfected within 30 days of the date the trial court signed its order of dismissal.  In re Bennett, 960 S.W.2d 35, 38 (Tex. 1997) (stating that the appellate timetable begins once the formal order of dismissal is signed).             Finally, it seems as though the eventual issue before us will entail the ability of the trial court to dismiss a proceeding per a motion to non-suit after the movant withdraws his motion.  By seeking dismissal of this appeal, Moore effectively is asking us to address that matter without the benefit of briefing by either party.  We opt not to accept her invitation to circumvent the rules of appellate procedure, especially Rule 38 (the rule applicable to briefing).             The motion to dismiss this appeal is denied.                                                                                      Per Curiam

01-03-2023

09-08-2015

https://www.courtlistener.com/api/rest/v3/opinions/2904480/

J-A07019-15 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 FRANCESCA V. GURECKA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. ROBERT W. CARROLL AND HOLLY LACEY CARROLL Appellants No. 1301 WDA 2014 Appeal from the Order Entered July 11, 2014 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD 11-024656 BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J. MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 09, 2015 Robert W. Carroll and Holly Lacey Carroll (the Carrolls) appeal from the order of the Court of Common Pleas of Allegheny County that entered a permanent injunction enjoining them from interfering with the repair and use of a sewer line located on their property that services a nearby residence. After careful review, we reverse. The trial court set forth the factual background of the case as follows: On October 31, 2011, [Appellee], Francesca Gurecka, entered into a written Standard Agreement for the sale of real estate with Rachel French and William Ommert, the purchasers, for the sale price of $390,000.00. The closing date was set for November 30, 2011. On or about November 18, 2011, it was discovered during a municipal dye test that the sewer line servicing the property had a blockage which required repair. The plumber employed to make the repairs inserted a camera into the sewer line and discovered that the sewer line lateral proceeded to run downhill, under Forest Glen Drive and through J-A07019-15 the property of [Appellants]. The plumber started to perform excavation and repair of the sewer line on the Carroll property when Holly Lacey Carroll instructed the plumber to cease all work and immediately vacate her property. Common Pleas Court Judge Judith Friedman issued a preliminary injunction on December 2, 2011, authorizing the reasonable repairs of the sewer line pending further litigation and required Gurecka to post a $5.000.00 bond. Due to the future litigation surrounding the sewer line repair, the sales agreement between Francesca Gurecka and Rachel French/William Ommert was terminated. Francesca Gurecka next sought a permanent injunction seeking to restrict the Carrolls from interfering with the repair or continued use of the sewer line. Francesca Gurecka maintains that she has a right to continued use and maintenance of the sewer due to an easement by implication, or implied easement. This case was assigned to this writer to decide whether a permanent injunction should issue, as a future sewer line blockage coupled with the Carrolls refusal to allow maintenance of the line may render the property uninhabitable. The Carrolls maintain that they have had plans to reposition their driveway from the time of their purchase in March of 2011. The Carrolls further maintain that if the Gurecka line was to remain in the current location, any hopes of redesigning and repositioning their driveway would be impossible. The Carrolls assert that the sewer line encroaches 13 feet into their 107 foot wide lot, rendering 12.15% of their property unusable. Trial Court Opinion, 7/11/14, at 1-2. The trial court adopted the following joint statement of facts by the parties: 1. [Appellee], Francesca V. Gurecka, is an individual residing at 603 Cherry Blossom Way, Bridgeville, Pennsylvania 15017 and is the Trustee of the Alba N. Valli Irrevocable Trust, title[d] owner of real estate located at 8 Forest Glen Drive, Pittsburgh, Mt. Lebanon, Allegheny County, Pennsylvania 15228 (the “Property”). -2- J-A07019-15 2. [Appellants], Robert W. Carroll and Holly Lacey Carroll are individuals residing at 13 Forest Glen Drive, Pittsburgh, Mt. Lebanon, Allegheny County, Pennsylvania 15228 (the Carrolls’ Property.) 3. On October 5, 1936, Orca Geyer (“Geyer”) acquired approximately 13 acres in Mt. Lebanon from Beverly Heights Company, by deed dated October 5, 1936, and recorded in the office of the Recorder of Deeds of Allegheny County in Deed Book Volume 2540, Page 204. 4. Geyer thereafter developed Forest Glen, a subdivision, which was proposed in October 1948, and accepted by Mt. Lebanon and recorded January 17, 1949, in Plan Book Volume 44, Pages 17, 18 and 19 (herineafter “Forest Glen Subdivision”). First Glen Subdivision contained 25 lots. 5. The Property is known and referred to as Lot 4 and part of Lot 5 in the Forest Glen Subdivision. 6. [The Carrolls’] Property is known and referred to as Lot 18 in the Forest Glen Subdivision. 7. A right of way for public sewer lines runs behind Lots 12, 13, 14, 15, 16, 17, 18, 19 and 21 in the Forest Glen Subdivision. These lots would be considered to be on the “low side” of Forest Glen Drive. 8. Lots 1, 2, 3, 4, 5 and 6, 7, 8, 9, 10 and 11 are on the opposite side of Forest Glen Drive and therefore on the opposite side of the public right of way. These lots would be considered on the “high side” of Forest Glen Drive. 9. [Gureka’s] “high side” lot had no direct access to the public sewer therefore, Geyer, as developer, between 1949 and 1956, constructed a sewer line which went through the [Appellants’] “low side” lot and connected to the manhole which is in the public right of way. 10. The sewer line at issue which runs through [the Carrolls’] Property is located approximately 13 feet from the boundary line with Lot No. 17. 11. Geyer lived in the Property for a period of time between the 1940s and 1969. Geyer granted and conveyed Lot 18 (the Carrolls’ lot) to S. Boyd Challinor and Ruth G. Challinor, by deed dated October 2, 1956, and recorded in the Office of -3- J-A07019-15 the Recorder of Deeds of Allegheny County in Deed Book Volume 3529, Page 489 (the “Challinor Deed”). 12. The Challinor Deed does not contain an express easement for the existing sewer line from the Property through and across the Carrolls’ property to the public sewer line. 13. Forest Glen Subdivision does not contain an express easement for the sewer line from [Gureka’s] property through the [Carrolls’] property. 14. Geyer granted and conveyed the [high-side] property to Aris V.C. Valli and Alba N. Valli by deed dated July 28, 1969 and recorded in the Office of the Recorder of Deeds of Allegheny County in Deed Book Volume 4763, Page 249. 15. Aris V.C. Valli died August 26, 1976, thereby vesting full title in fee simple through survivorship in his wife Alba N. Valli. Alba N. Valli thereafter transferred the property in trust naming her daughter Francesca V. Gurecka as Trustee. 16. Challinor conveyed Lot 18 to the Appellants by deed dated March 24, 2011, and recorded in deed book volume 14535 page 310. The Challinor Deed does not contain any reference to the sewer line running through the [Carrolls’] property. 17. There are four visible manholes located on the [Carrolls’] Property; two located at the back of the property across the creek and two located on this side of the creek; one on the bottom left and one to the bottom right (Identified as Manholes #1 and #2 respectively). 18. [Manhole] #1 and [manhole] #2 are located within the sanitary sewer right of way which traverses the [Carrolls’] property. 19. [Gureka’s] sewer line runs right into public manhole #2 while the [Carrolls’] sewer line doesn’t connect to a public manhole but taps into the public sanitary sewer line which traverses [the Carrolls’] property. ... 21. [Gureka] discovered the existence of the sewer line during a home inspection in November 2012. -4- J-A07019-15 Id. at 3-5. Based on the stipulated facts, the briefs of the parties and a visit to the subject property, the trial court issued an opinion and order on July 14, 2014, making permanent the preliminary injunction entered on December 2, 2011. The Carrolls filed a timely appeal, in which they raise the following issues for our review: 1. Whether the trial court committed an error of law in determining that the “open and visible” prong of the test for an implied easement was satisfied in the case where the existence of the sewer line was unknown to either of the current property owners, it was wholly undocumented in any deed or plan of lots, and had no physical features of its own above visible ground but the trial court held that merely because (a) the municipal sewer main, which is depicted on the Forest Glen Plan of lots, traverses the rear of the [Carrolls’] lot and (b) four physical sewer access manhole covers are visible on the [Carrolls’] lot, the [Carrolls] were provided legal notice that an individual sewer line serving another property was present approximately parallel to the boundary of an adjacent property. 2. Whether the court below committed error of law by holding that there was an implied easement merely because the sewer line in question had been in existence for fifty years although wholly unknown to the [Carrolls] and their predecessor landowners where [Gurecka] cannot establish that her property would be rendered uninhabitable as she can readily tap into the public sewer line through an express right of way that is also downhill of her property and also across Forest Glen Road. -5- J-A07019-15 Appellants’ Brief, at 4.1 “When reviewing the grant or denial of a final or permanent injunction, an appellate court’s review is limited to determining whether the trial court committed an error of law.” Buffalo Tp. v. Jones, 813 A.2d 659, 663-64 (Pa. 2002). In Bucciarelli v. DeLisa, 691 A.2d 446 (Pa. 1997), our Supreme Court noted: The traditional test for implied easement at severance of title is set out in Burns Manufacturing v. Boehm, 356 A.2d 763, 767 (Pa. 1976): It has long been held in this Commonwealth that although the language of a granting clause does not contain an express reservation of an easement in favor of the grantor, such an interest may be reserved by implication, and this is so notwithstanding that the easement is not essential for the beneficial use of the property. . . . The circumstances which will give rise to an impliedly reserved easement have been concisely put by Chief Justice Horace Stern speaking for the Court in Tosh v.Witts, [113 A.2d 236 ([Pa.] 1955)]: Where an owner of land subjects part of it to an open, visible, permanent and continuous servitude or easement in favor of another part and then aliens either, the purchaser takes subject to the burden or the benefit as the case may be, and this irrespective of whether or not the easement constituted a necessary right of way. Tosh v. Witts, supra . . . at 228. (Citations omitted). The Boehm court further stated: ____________________________________________ 1 We have reversed the order of the issues in order to facilitate our discussion. -6- J-A07019-15 Easements by implied reservation . . . are based on the theory that continuous use of a permanent right-of-way gives rise to the implication that the parties intended that such use would continue, notwithstanding the absence of necessity for the use. 365 A.2d at 767 n.4. Bucciarelli, supra, at 448-49. In order to establish a claim for a permanent injunction, the party must establish his or her clear right to relief. However, unlike a claim for a preliminary injunction, the party need not establish either irreparable harm or immediate relief and a court may issue a final injunction if such relief is necessary to prevent a legal wrong for which there is no adequate redress at law. Buffalo Tp., supra at 663 (citations and quotations omitted). Here, the 1956 deed from Geyer to the Challinors does not include an express reservation of a sewer easement. In a verification affidavit attached to the Carrolls’ answer to Gureka’s motion for partial summary judgment, Challinor avers that when he and his wife purchased Lot 18 from Gureka, “they were not informed, and had no knowledge of a private sewer line from the [h] ouse occupying Lot No. 4.” Affidavit of S. Boyd Challinor, 12/10/11. The Carrolls were likewise unaware of the existence of the sewer line when they purchased their property from the Challinors. In the absence of an express easement, the question before the trial court was whether an easement by implication was created at the time of the severance of title in 1956. Critical to this determination is whether the Carrolls’ property is subject to an “open, visible and permanent” easement. See Tosh, supra. The trial court held that it is, stating: “[T]he array of -7- J-A07019-15 manholes in the rear of the [Carrolls’] property does place [the Carrolls] on notice of a network of sewer lines coming onto and crossing their property.” Trial Court Opinion, 7/11/14, at 8. In support of the trial court’s determination, Gurecka cites to Motel 6 v. Pfile, 718 F.2d 80 (3d. Cir. 1983) for the proposition that “Pennsylvania Courts have recognized sewer lines, not visible on the surface of the land, to be given implied easement status.” Appellees Brief, at 3. While this is true, it is instructive to consider the following discussion of the issue by the Motel 6 court: There can be no dispute that the use involved here satisfies the requirements of [Boehm] that an implied easement be “open” and “visible.” Like the sewage system at issue in Bryn Mawr Hotel Co. v. Baldwin, 12 Montg.Co.L.Rep. 145, 149 (1896), the system here was of a “notorious character.” That the underground pipes may not have been “visible” in the literal sense is beside the point, because the existence of the sewage connection was known to the parties. See Geissel v. Supplee, 95 Pa. Super. 358, 360 (1929), (finding an easement in the use of a water pipeline when such use was notorious and “know[n] to both parties.”) Motel 6, at 85. Therefore, Motel 6 stands for the limited proposition that an implied easement for sewer lines can exist where the open and visible requirements are met. Our review of the record indicates that at no time has Gurecka established that manholes are commonly used at connection points between private sewer pipes and municipal sewer lines. She has attached no -8- J-A07019-15 affidavits to this effect to any of the pleadings, nor has she provided citation to the law of Pennsylvania or any other jurisdiction in support of this critical issue. Accordingly, Gurecka has provided an insufficient basis on which the court could find “the subject sewer, and for that matter, the network of sewers in the area of the [Carrolls’] property to be open, visible and permanent.” Trial Court Opinion, 7/11/14, at 8. On the record provided, Gureka has not established a clear right to a permanent injunction. See Buffalo Tp., supra. Therefore, we are constrained to reverse the order of the trial court.2 Order reversed. Mundy, J., Joins the memorandum. Bender, PJE., Files a Dissenting Memorandum. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 9/9/2015 ____________________________________________ 2 Because of our disposition of the first issue, we will not address the Carrolls’ position that Gurecka is not entitled to relief because there is an easement for sewers straddling the lot line between Lot Nos. 19 and 21, which would allow her to connect a new sewer to the main sewer line. See Trial Court Opinion, 7/11/14, at 7. -9-

01-03-2023

09-09-2015

https://www.courtlistener.com/api/rest/v3/opinions/127741/

537 U.S. 1235 BUTLERv.COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION. No. 02-8207. Supreme Court of United States. March 3, 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/127742/

537 U.S. 1235 BRYSON ET AL.v.JOHNSTON, JUDGE, SUPERIOR COURT OF NORTH CAROLINA, MECKLENBURG COUNTY, ET AL. No. 02-8212. Supreme Court of United States. March 3, 2003. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT. 2 C. A. 4th Cir. Certiorari denied. Reported below: 39 Fed. Appx. 946.

01-03-2023

04-28-2010

https://www.courtlistener.com/api/rest/v3/opinions/3992342/

This is an appeal from an order of dismissal made and entered by the trial court after successive demurrers had been sustained to various complaints of the plaintiff, which order of dismissal was entered on the ground and for the reason that no amendments had been made "curing the defect in the original complaint." [1] If we are able to gather the theory of the various complaints filed in this action, the plaintiff, acting as his own attorney, is attempting to hold the state of Washington liable in damages by reason of the fact that he was gored by a vicious bull, the claim being made that the state, by its failure to enforce certain of *Page 102 our statutory laws relative to vicious animals, is thus rendered civilly liable for the damages resulting. We have not had the advantage of an oral argument, neither has there been presented any citation of authority. We are unable to understand how it can be contended that the state of Washington is civilly liable because a county officer has failed to enforce the law or, as in this case, has failed to apprehend a vicious animal. Judgment affirmed.

01-03-2023

07-06-2016

https://www.courtlistener.com/api/rest/v3/opinions/3992355/

The four actions here involved were consolidated below for trial. The plaintiffs in three of the actions sued to recover for property damage sustained by reason of the collapse of the brick walls of a building owned by the defendant. The fourth action was brought by plaintiff Keir individually and as guardian ad litem for his minor daughter, Violet Keir, to recover for personal injuries sustained by her. The causes were tried to the court, sitting without a jury. Separate findings of fact were made in each cause and one judgment was entered, awarding to the plaintiffs severally the sums to which they were adjudged *Page 187 to be entitled. The defendant appeals from the judgment. The plaintiffs Herbert and Moody, not satisfied with the amount of damages awarded them, have cross-appealed. The appellant was the owner of a three-story brick structure, known as the Odd Fellows building, situate at the southwest corner of Capitol way and Fifth avenue, in the city of Olympia. The building was seventy feet in height, had a frontage of sixty feet on Capitol way, and extended along Fifth avenue to a depth of one hundred feet. The first story was occupied by store rooms, the second was used for hotel purposes, and the third was devoted to lodge use. The exterior walls were of brick sixteen inches in thickness to the top of the first floor, and twelve inches above that. The building was erected in 1888, and the brick was laid in lime mortar, cement not being in common use at that time. The respondent Williams owned a one-story building fronting on Capitol way, adjoining the lodge building on the south. It was occupied by the respondents Herbert and Moody, doing business as the Capitol Way Inn, and by the respondent Boyd M. Teter, doing business as the Pantorium Cleaners. A fire occurred in the lodge building on the night of January 7, 1937. The interior of the building was of wood construction, and most of it was destroyed. The roof and portions of the second and third floors fell in. The fire burned for two days. The naked walls were allowed to stand unsupported after the fire. On the night of February 16, 1937, forty days after the fire, during a strong wind storm, a large part of the walls collapsed and fell. One witness testified that the walls did not fall as a solid mass, but seemed to crumble into a torrent of bricks. Another witness testified that the walls fell in sections. When the southern wall collapsed, a large part of the brick fell on the *Page 188 Williams building, crashing through the roof and causing the property damage to the building and its tenants for which they sue to recover; and Violet Keir, an employee in the Capitol Way Inn, sustained the injuries for which suit was brought by her father. As a basis for recovery, respondents allege in their complaints that the appellant was guilty of negligence in allowing the walls to stand unsupported for forty days after the fire knowing, or charged with knowledge of the fact, that the walls were unsafe. The appellant, in its answer, denied the negligence and alleged affirmatively that the collapse of the walls was caused by a wind of such extraordinary and unprecedented velocity as amounted to an act of God, which could not have been anticipated or provided against. The primary question is whether the appellant was chargeable with negligence under the circumstances. To say that the collapse of the walls was caused by an act of God, is but another way of denying negligence on the part of the appellant. [1] That the walls were blown down by a strong wind, can not be questioned, but this fact does not of itself exculpate the appellant. Strong winds were to be expected during January and February, and appellant was under a legal duty to foresee and guard against the possibility of danger from them. If the appellant is liable, it is on the basis of negligence, in that it failed, within a reasonable time after the fire, to take proper precautions to protect against a danger that could be reasonably anticipated from the existing condition of the premises. The appellant would not, of course, be liable if the walls had fallen during the progress of the fire; it would not be liable if they had fallen within such period thereafter as would not have given a reasonable time to take them down or otherwise to insure their safety. *Page 189 "The question of the liability of a landowner for damage to adjoining premises has frequently arisen in connection with the fall of walls which had been weakened and made dangerous by fire. The general rule is, that where a fire has occurred in a building, destroying the inner portion of the building and leaving the walls, if the owner permits the walls to remain standing, and they thereafter fall, he is liable to the adjoining owner for the resulting damage; for to maintain such a wall after the expiration of a reasonable time for investigation and for its removal, would not be a reasonable and proper use of one's property, as it is the duty of a landowner not to suffer such a wall to remain on his land where its fall would injure his neighbor, without using such care in the maintenance of it as would absolutely prevent injuries, except from causes over which he would have no control, but he cannot be held liable for the injury, or bound to make the structure safe, until he has had a reasonable time, after it has so become dangerous, to take the necessary precaution." 1 R.C.L. 374, § 6. [2] The appellant contends that it had no notice of the unsafe condition of the walls. Officials of the city, including the building inspector and city engineer, testified that they made an examination of the walls and, finding no cracks in them, concluded they were safe. Another witness, engaged in the manufacture of brick, testified that he had inspected the walls and advised the appellant that, in his opinion, they could safely be permitted to stand. On the other hand, witnesses experienced in brick construction work, called by the respondents, testified that the walls were dangerous, owing partly to the combined effect of fire, water, and freezing weather. While the city officials testified that they considered the walls safe, their testimony is not persuasive, since it is evident that they were much concerned to have the walls taken down, and notified the lodge officers to that effect. The city engineer testified that the city had *Page 190 directed the appellant to take the walls down, but did not make a written order, because the lodge was negotiating insurance and expected to take them down anyway. "Q. Yes, so the letter was not posted. Now, why did the city direct they be taken down? A. Well, no one would want them standing there, would they? They would want them cleaned up. Q. Why not? . . . A. Well, I know I wouldn't want an eyesore like that anywhere. . . . MR. O'LEARY: Mr. Turner, did I understand you to say that the city had informed the Odd Fellows to take those walls down? A. . . . three or four of the committee came up there and we told them after the fire was over that it was their baby, and in fact that is the words we used, and, from there on it was up to them to remove them, protect them with board walks, and so forth. Q. There was no official order they should be taken down? A. It was just a verbal statement." Now, of course, while the witness said that the city officials were interested in the removal of the walls because they were an eyesore, his testimony implied more than that. When the representatives of the appellant were told that the walls were "their baby," the city officials had in mind the appellant's responsibility for any damage that might result. If the city officials had in mind only esthetic considerations, they would not have expressed the responsibility of the appellant in the language employed. Since the condition of the building was so challenging, with its naked walls standing to a height of seventy feet without support, it seems to us that the appellant cannot be heard to say it had no notice of the danger and risk attendant upon that condition. A committee had been appointed by the appellant to investigate, and, finally, on February 1st, a resolution was adopted ordering the removal of the walls and the employment of an architect to draw plans for the work. The work *Page 191 was advertised and bids received by the appellant on February 16th, the night the walls fell. [3] While it is likely the walls would not have fallen on the night of the 16th if it were not for the occurrence of a strong gale, yet we do not conceive that this fact absolves the appellant from responsibility. The occurrence of strong winds in the winter months was reasonably to be expected. We are not persuaded that the wind on the night of February 16th, strong as it was, was so unprecedented as to fall within the definition of an act of God and the sole cause of the collapse. The most that can be said is that the strong wind concurred with the negligence of the appellant in producing the result. "In order that this rule may apply the act of God must be the sole cause of injury, for if an act of God and the negligence of an individual are concurring causes of an injury, the individual who was guilty of negligence is liable for the injury. One who is under a duty to protect others against injury cannot escape liability for injury to the person or property of such others on the ground that it was caused by an act of God unless the natural phenomenon which caused the injury was so far outside the range of human experience that ordinary care did not require that it should be anticipated or provided against, and it is not sufficient that such phenomena are unusual or of rare occurrence. The fact that one was negligent in failing to take proper precautions against ordinary occurrences will not charge him with liability for an injury caused by an act of God, which would have caused the injury even had proper precautions been taken, but the fact that an injury was actually caused by a natural phenomenon of such unusual nature that it might be termed an `act of God' will not excuse from liability where precautions which should have been taken to guard against occurrences which should have been expected were negligently omitted and such precautions would have prevented the injury." 45 C.J. 736, § 127. *Page 192 The chief of the state's forestry department testified that he kept an unofficial record of wind velocity for his own use and information, and that he estimated the velocity of the wind, on the night of February 16th, at his home on Butler's Cove, four and a half miles north of Olympia, at sixty-five miles an hour. He admitted, however, that there could be a material difference between the velocity at his home, exposed as it was to an open stretch of water of fifteen miles or more, and the velocity in the city of Olympia. The official reports of the government weather service at Seattle, as well as from the station at Lakeview, some twenty miles distant from Olympia, were introduced and showed much lower velocity than that testified to by the state forester. It is significant that there is no evidence in the record of any damage to other buildings or property in the city of Olympia on that night. Mr. Williams, city engineer, testified that, as far as he knew, no other damage had been caused by the storm. A master mariner, who had been engaged for many years in the tugboat business and was then in charge of several tugs and scows, testified that he was aboard his boat, moored at the Olympia Yacht Club, some four blocks distant from the Odd Fellows building, and that, while there was "a good stiff breeze" that night, he had not heard of the storm doing any damage to his employer's equipment. There were forty boats moored at the yacht club that night, but he did not recall any substantial damage done at the moorings. Our conclusion is that the trial court was fully justified in finding the appellant chargeable with negligence in not taking proper and timely measures to guard against an obvious danger. The appellant does not challenge the correctness of the sums awarded to the respondents Williams, Teter, *Page 193 and Keir, in the event the court should hold against it on the issue of negligence. It contends, however, that the damages awarded to the respondents Herbert and Moody are excessive. These respondents, on the other hand, contend, in their cross-appeal, that the court's award is insufficient. [4] Herbert and Moody had occupied the room in the Williams building under a five-year lease, which terminated January 1, 1937. While some negotiations had been under way for a renewal of the lease and a draft of the lease had been given to the respondents by their landlord, it had not been executed and no definite conclusion had been reached when the fire occurred. It was evidently the intention of the respondents to resume operations in the old location, and, in their complaint, they alleged that they would not be able to reopen there before the first of May. A notice of reopening on that date was also posted on the premises. The room was not ready for occupancy before May 1st, although it appears that respondent Teter, doing business as Pantorium Cleaners, reopened in his old quarters April 19th. Toward the end of April, the respondents determined to reopen in a new location on Fourth avenue, some four blocks distant from the Williams building. Such of the restaurant equipment of the old location as could be salvaged had been put in storage and was later removed to the new location, where the respondents reopened for business July 14, 1937. In its third finding of fact the court allowed the respondents $5,000 to cover property damage, the cost of advertising, and for loss of profits on account of the interruption of the business. Some sixty-five items of damage, great and small, are enumerated by the court in making up the sum awarded. The court allowed $375 for advertising; $400 for loss of business *Page 194 in the months of January and February, caused by the reluctance of patrons to enter the restaurant for fear of injury from the standing walls; and $1,600 for loss of profits for the months of March, April, May and June. The remainder, $2,625, was for personal property damage to the restaurant equipment. The appellant challenges the court's allowance of the item for advertising. On the other hand, the respondents contend they should have been allowed $1,000. Mrs. Herbert, one of the proprietors, testified that it would require the expenditure of $1,000 for radio, newspaper, and other advertising to restore the business, and that contracts aggregating that amount had been made. Her testimony was not very definite as to the time covered by the advertising campaign or other details. To a large extent, the advertising had relation to the new location on Fourth avenue, and was intended to draw patronage there. Some advertising would have to be done, however, even if the business had been reopened after some months' interruption in the old location. We cannot say that, under the circumstances, the allowance made by the court was unreasonable. The court, in fixing the amount at considerably less than the respondents claimed to have incurred a liability for, doubtless had in mind the fact that a large share of the advertising was rendered necessary by the removal of the respondents to a new location. A considerable part of the sum allowed for damage to the restaurant equipment was made for items that had no salvage value and could not be used in the new location, such as electric wiring and lighting, ventilation and painting. This expense had been incurred by respondents in equipping the room in the Williams building for the restaurant business. If they had remained in this building, the equipment would *Page 195 require to be restored at their own expense. Respondents were rightfully in possession of the premises when this damage was sustained by them through the negligence of appellants, and we have been cited no rule of law that denies them a right of recovery. If, instead of moving to new quarters, they had chosen not to reopen the business, it could hardly be contended that they would not be entitled to recover. The appellant questions the item of $400 allowed for loss of business during the period intervening between the fire and the collapse of the walls. The appellant would not, of course, be liable to the respondents for any loss they might sustain by reason of the burning of the lodge building and the resulting interruption or diversion of pedestrian travel from the premises. The court based its allowance upon a finding that the dangerous condition of the walls deterred customers from patronizing the restaurant. The books of the respondents show that they not only made no profit during this period, but suffered an actual loss of over $200. The fact that, when the wall did fall, it shattered the restaurant and injured one of its employees, is proof that the reluctance of patrons to enter the restaurant was not groundless. We have seen that the respondents reopened their restaurant at the new location on Fourth avenue July 14th. The court allowed for loss of profits at the rate of $400 a month for the months of March, April, May and June. The appellant contends that, in view of the fact that respondents did not reopen in the Williams building, no allowance should be made for profits; and that, in any event, no allowance should have been made for the months of May and June, since the Williams building was ready for use the first of May. The respondents, on the other hand, urge that the court should have allowed some eight hundred dollars more. *Page 196 That the respondents are entitled to some allowance for loss of profits, under the circumstances, cannot be questioned. In the course of their five years in the Williams building, they have established a profitable business. The evidence shows that their gross receipts for the year 1936 were over $25,000, and their net profits around $4,500; their profits for the year 1935 were $2,800; the profits for each of the years 1933 and 1934 were approximately the same as those of 1936. Thus we see that it was possible to make a fairly definite finding of the loss of profits sustained by interruption of their business without resort to speculation. The respondents could have reopened in their old location about May 1st. The operation of their business was interrupted for two additional months by reason of their decision to remove to the new location. The record is not clear as to the reasons why the change was made, although there is some intimation that the room was not quite ready for re-occupancy at the end of April, when the respondents determined to make the change. While the respondents are entitled to just compensation for the loss sustained by them chargeable to the appellant's negligence, they are not entitled to recover for loss consequent upon their removal to a new location. If they had decided to make the change at the time their restaurant was damaged, it is probable that they would have been able to reopen before May 1st. Under the circumstances, we think the respondents were not entitled to the allowance made for the months of May and June. The judgment of the trial court is affirmed as to the respondents Williams, Teter and Keir; and the cause is remanded to the superior court with direction *Page 197 to reduce the judgment in favor of the respondents Herbert and Moody to $4,200. HOLCOMB, MAIN, BEALS, and SIMPSON, JJ., concur.

01-03-2023

07-06-2016

https://www.courtlistener.com/api/rest/v3/opinions/3992356/

BLAKE, C.J., and GERAGHTY, J., dissent. This is an original proceeding in this court by which relators seek the issuance of a permanent writ of prohibition restraining respondent from further proceedings in four actions brought against them. The Prudential Insurance Company of America, the Northwestern Mutual Life Insurance Company, the Aetna Life Insurance Company, and the New England Mutual Life Insurance Company, each instituted an action in the superior court of Thurston county during the year 1938, under the provisions of the uniform declaratory judgment act of this state, Rem. Rev. Stat. (Sup.), §§ 784-1 to 784-17 [P.C. §§ 8108-21 to 8108-37] (Laws of 1935, chapter 113, p. 305, as amended by Laws of 1937, chapter 14, p. 39), for the purpose of having its status or legal relations as affected by Rem. Rev. Stat. (Sup.), § 9998-119 [P.C. § 6233-317], subd. (g) (5), Laws of 1937, chapter 162, pp. 611-612, § 19 (g) (5), of the unemployment compensation act determined. *Page 135 The complaints, for all practical purposes, are identical in their allegations. The pertinent portions of each complaint allege that the company is engaged in the life insurance business in the state of Washington, doing its business through local agents; that the matter of negotiating contracts of life insurance on behalf of the company is left entirely and exclusively to the agents, who conduct and operate such business entirely as independent contractors, wholly distinct and separate from any business carried on by the company. It is also alleged that the defendants, relators here, contend the agents are employees engaged in employment for the company as defined in the unemployment compensation act, and are demanding of plaintiff that it pay contributions provided by the act, and if the act is thus construed to apply to the agents' contracts, such construction would be in contravention of Art. 1, § 10 and the fourteenth amendment to the constitution of the United States, and Art. 1, §§ 3, 7, 12, and 23 of the constitution of the state of Washington. Relators then answered, disclaiming any present intention to levy or collect any contribution upon the earnings of the company's agents, and asked that the actions be dismissed. The court denied the motions to dismiss, whereupon relators filed a petition for a writ of prohibition in this court. Relators contend that the question of determining whether services of the agents of the companies constitute employment within the meaning of the act, is, in accordance with the provisions of the act, exclusively one to be determined by the director of the department of social security, and that the superior court has no jurisdiction to determine the matters presented by the complaints. For the purpose of this opinion, we will assume, *Page 136 without deciding, that the superior court does not have jurisdiction to decide the propositions presented by the complaints. This court is empowered by virtue of Art. IV, § 4, of the state constitution, and Rem. Rev. Stat., §§ 1027 and 1028 [P.C. §§ 8386, 8387], to issue writs of prohibition, which statutes, respectively, read: "The writ of prohibition is the counterpart of the writ of mandate. It arrests the proceedings of any tribunal, corporation, board or person, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board or person." "It may be issued by any court, except police or justices' courts, to an inferior tribunal, or to a corporation, board or person, in all cases where there is not a plain, speedy and adequate remedy in the ordinary course of law. It is issued upon affidavit, on the application of the person beneficially interested." [1] The writ of prohibition is a drastic remedy, and can be resorted to against a judicial tribunal only in strict accordance with the statute which permits its issuance, and is never favored where the party may invoke other remedies provided by law. It should only be granted when there is something in the nature of the proceeding that makes it manifest that the rights of the parties to the action cannot be sufficiently protected by any other legal remedy. The general rule is stated in 22 R.C.L. 9, as follows: "In the absence of a statute expressly permitting it, the general rule is that prohibition, being an extraordinary writ, cannot be resorted to when ordinary and usual remedies provided by law are adequate and available. Accordingly if a complete remedy lies by appeal, writ of error, writ of review, certiorari, injunction, mandamus, motion for change of venue, or in any other manner, the writ should be denied. Even an indirect and inconvenient remedy may be sufficient to prevent the issuance of a writ." *Page 137 The coincidence of two factors is necessary to the issuance of a writ of prohibition: (1) Absence or excess of jurisdiction, and (2) the absence of a plain, speedy, and adequate remedy in the course of legal procedure. The absence of either one precludes the issuance of the writ. In State ex rel. Walker v. Superior Court, 148 Wash. 610,270 P. 126, the court quoted with approval State ex rel. Meyerv. Clifford, 78 Wash. 555, 139 P. 650, as follows: "The office of a writ of prohibition is to arrest proceedings which are `without or in excess' of the jurisdiction of the particular tribunal whose acts are sought to be reviewed. The writ is available only where the tribunal is proceeding `without or in excess' of jurisdiction, and then only where there is no adequate remedy either by appeal or by writ of error [certiorari]. State ex rel. Griffith v. Superior Court,71 Wash. 386, 128 P. 644; State ex rel. Mackintosh v. SuperiorCourt, 45 Wash. 248, 88 P. 207." The following cases are of like import: State ex rel. Millerv. Superior Court, 40 Wash. 555, 82 P. 877, 111 Am. St. 925, 2 L.R.A. (N.S.) 395; State ex rel. Peterson v. Superior Court,67 Wash. 370, 121 P. 836; State ex rel. Potter v. SuperiorCourt, 135 Wash. 344, 237 P. 717; State ex rel. Nelms v.Superior Court, 149 Wash. 50, 270 P. 128; State ex rel. Millsv. Superior Court, 149 Wash. 473, 271 P. 333; State ex rel.Grays Harbor R. L. Co. v. Denney, 150 Wash. 690, 274 P. 791;State ex rel. Canadian Bank of Commerce v. Superior Court,162 Wash. 377, 298 P. 716. The reason for the rule announced in the cited cases is twofold. First, Rem. Rev. Stat., § 1028, only authorizes the issuance of a writ when "there is not a plain, speedy and adequate remedy in the ordinary course of law." The second reason is contained in *Page 138 the following statement in State ex rel. Miller v. SuperiorCourt, supra: "It is the general policy of our law that cases shall come to this court but once, and that the decision of this court shall be based on the merits of the entire controversy. The question here presented is no exception to this rule. There are additional reasons why applications of this kind should not be favored. Such applications are usually submitted in an informal manner, without adequate briefs, and often without an appearance by the adverse party. Such practice is not conducive to a proper consideration, or correct decision, of important questions of law in an appellate court. We again announce the rule that the adequacy of the remedy by appeal, or in the ordinary course of law, is the test to be applied by this court in all applications for extraordinary writs, and not the mere question of jurisdiction or lack of jurisdiction; and that the adequacy of the remedy by appeal does not depend upon the mere question of delay or expense. There must be something in the nature of the action or proceeding that makes it apparent to this court that it will not be able to protect the rights of the litigants or afford them adequate redress, otherwise than through the exercise of this extraordinary jurisdiction." We are mindful of the reasons given for the issuance of the writ in State ex rel. Skaggs v. Smith, 116 Wash. 572,200 P. 92. That case is inapplicable here for the reason that there is no showing in the case at bar, aside from the mere conclusion contained in the application for a writ, that the relators will be taken from the discharge of their duties for any considerable length of time. [2] It cannot be conceded that the questions presented by the pleadings will absorb the attention of the trial court or compel the attendance of relators for any considerable extended period of time. To hold that state officers, as such, are to be allowed exemptions *Page 139 from the rule applied to other litigants, would not be in keeping with the provisions of the statute. We are satisfied an appeal will lie from the judgment of the superior court in the cases before it. Each complaint alleges that the amount in controversy is in excess of two hundred dollars, and it will be observed that the pleadings raise the issue as to whether the act can be constitutionally applied to the plaintiffs. The appeal would afford relators that speedy and adequate relief anticipated by the statute should they feel aggrieved by the judgment of the superior court, and, therefore, we refrain from passing on the merits of the cases at this time. The writ is denied. MAIN, BEALS, STEINERT, ROBINSON, JEFFERS, and MILLARD, JJ., concur.

01-03-2023

07-06-2016

https://www.courtlistener.com/api/rest/v3/opinions/3230455/

Appeal dismissed, motion of appellant. *Page 695

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/2963185/

Court of Appeals of the State of Georgia ATLANTA, September 09, 2015 The Court of Appeals hereby passes the following order A16I0008. PHILLIP T. ALDREDGE v. TIMOTHY SMITH. Upon consideration of the Application for Interlocutory Appeal, it is ordered that it be hereby GRANTED. The Appellant may file a Notice of Appeal within 10 days of the date of this order. The Clerk of State Court is directed to include a copy of this order in the record transmitted to the Court of Appeals. LC NUMBERS: 2013SV0039 Court of Appeals of the State of Georgia Clerk's Office, Atlanta, September 09, 2015. I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written. , Clerk.

01-03-2023

09-21-2015

https://www.courtlistener.com/api/rest/v3/opinions/2776683/

FILED NOT FOR PUBLICATION FEB 04 2015 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JOHN LOUDERMILK; TIFFANY No. 12-17259 LOUDERMILK, individually and as parents and next friends of Brittany Renee D.C. No. 2:06-cv-00636-ROS Nash, Dakota James Loudermilk, Kristin Grace Loudermilk, Faith Rose Loudermilk, and Montana Vaughn MEMORANDUM* Loudermilk, minor children, Plaintiffs - Appellants, v. JOSEPH M. ARPAIO; UNKNOWN PARTIES; MICHAEL DANNER; RICHARD GAGNON; JOSHUA RAY; JOSEPH SOUSA, Defendants, And JULIE RHODES, individually and in her official capacity as Assistant Attorney General for the State of Arizona; RHONDA CASH, individually and in official capacity as a social worker with the Arizona Department of Economic Security, Administration for Children, * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Youth, Families, Child Protective Services; JENNA CRAMER, individually and in official capacity as a social worker with the Arizona Department of Economic Security, Administration for Children and Families, Child Protective Services, Defendants - Appellees. Appeal from the United States District Court for the District of Arizona Roslyn O. Silver, Senior District Judge, Presiding Argued and Submitted December 12, 2014 San Francisco California Before: O’SCANNLAIN, N.R. SMITH, and HURWITZ, Circuit Judges. John and Tiffany Loudermilk, et al., appeal from the district court’s grant of summary judgment in favor of Julie Rhodes, Rhonda Cash, and Jenna Cramer (“officials”). The Loudermilks claim that the officials (1) violated their Fourth Amendment right to be free from an unreasonable search of their home, and (2) violated their Fourteenth Amendment right to family integrity. I The district court did not err in finding that Cash and Cramer were entitled to qualified immunity regarding the unreasonable search claim. Assuming there was a constitutional violation in this case, the Loudermilks have the burden of 2 showing that the right at issue was clearly established. See Alston v. Read, 663 F.3d 1094, 1098 (9th Cir. 2011). It is clearly established that voluntary consent to a search vitiates concerns as to the search’s unconstitutionality, see Schneckloth v. Bustamonte, 412 U.S. 218, 219, 227 (1973), with voluntariness to be assessed by examining the totality of the circumstances. See United States v. Patayan Soriano, 361 F.3d 494, 501 (9th Cir. 2004). Our case law does not clearly establish that consent to a limited search is involuntary when given after the consenting party has had the opportunity to consult with an attorney. Cf. United States v. Wellins, 654 F.2d 550, 555–56 (9th Cir. 1981) (holding that a defendant’s consultation with his attorney was a “crucial factor” in determining that the defendant validly consented to a search of his hotel suite). II The district court properly determined that the officials were entitled to qualified immunity on the family integrity claim as well. The Loudermilks fail to cite any controlling authority clearly establishing that the mere threat to remove children from their parents’ home violates the family’s Fourteenth Amendment right to family integrity. See Alston, 663 F.3d at 1098 (“[The Plaintiff] bears the burden of showing that the right at issue was clearly established.”). AFFIRMED. 3

01-03-2023

02-04-2015

https://www.courtlistener.com/api/rest/v3/opinions/2834707/

.~ Judgment affirmed and Opinion filed May 25, 1995 In The r " Summary of facts Appellant specifically does not challenge the sufficiency of the evidence to support his conviction for possession of a controlled substance, namely cocaine, in an amount weighing less than 28 grams. Two Harris County sheriff's deputies testified they saw appellant holding what appeared to be a "crack pipe." After appellant fell down in an attempt to evade arrest, a "crack pipe" was found on the ground near appellant. Appellant was arrested for evading detention and for possession of narcotics paraphernalia. A small plastic container was found on appellant when he was searched pursuant to his arrest. Subsequent analysis of the "crack pipe" and container indicated the two items contained a total of 59.33 milligrams of cocaine. Following his conviction and sentencing, appellant filed written notice of appeal. Cruel and unusual punishment In his two points of error, appellant contends he received a cruel and unusual punishment when the trial cou~t sentenced him to 35-years confinement for possession of less than 28 grams of cocaine. Appellant claims the imposition of such a punishment is in violation of the eighth amendment;' the Texas Constitution.? and TEX. CODE CRIM. P. ANN. art. 1.09 (Vernon 1977). Appellant relies in part on the fact that possession of less than one gram of cocaine is currently classified as a state jail felony.t although at the time he was convicted it was classified as a second degree felony." The Penal Code provides for enhancement of the punishment range for a u.S. CONST. amend. VIII. 2 TEX. CaNST. art. I, § 13. 3 TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(3)(D), .115(b) (Vernon 1994). 4 Act of May 16, 1989, 71st Leg., R.S., ch. 678, sec. 1, § 481.115, 1989 Tex. Gen. Laws 2230, 2936, amended by Act of May 29, 1994, 73rd Leg., R.S., ch. 900, sec. 2.02, § 481.115, 1993 Tex. Gen. Laws 3586, 3706. -2­ • defendant convicted of a felony offense who has two prior final felony convictions to a term of not less than 25 and not more than 99 years. TEX. PENAL CODE ANN. § 12.42(d) (Vernon 1994). Appellant concedes the punishment assessed was within the statutory range of punishment for a felony enhanced by two prior felony convictions. The enhancement of punishment assessed against a defendant under a recidivist statute such as section 12.42(d) of the Penal Code does not render the punishment cruel and unusual. Rummel v. Estelle, 445 U.S. 263, 284-85, 100 S.Ct. 1133, 1144-45 (1980); Lackey v. State, 881 S.W.2d 418, 421-22 (Tex. App.--Dallas 1994, pet. ref'd). Appellant contends that an analysis of his sentence under the factors set forth in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001 (1983), supports the conclusion that his sentence was disproportionate to the offense committed and was therefore cruel and unusual. Solem supports the proposition that a sentence may be constitutionally defective when it is not proportionate to the offense committed. Although appellant has correctly stated the holding of Solem, it is distinguishable on its facts from appellant's case. In Solem, the defendant was sentenced to life imprisonment without possibility of parole, after enhancement for prior convictions, for writing a "no account" check. 463 U.S. at 279-81, 103 S.Ct. at 3004-05. Appellant was sentenced by the trial court to 35-years confinement with the possibility of parole, after enhancement for two prior convictions, for possession of approximately 60 milligrams of cocaine. Although appellant provides the revised sentencing guidelines of the Penal Code for comparison purposes, we do not believe the guidelines were revised to be dispositive of the issue. In addition, appellant presents no authority to support the contention that the trial court has the discretion to apply or look for guidance to sentencing guidelines under a revision of the Penal Code that did not become effective until September 1, 1994, three months after his conviction. -3­ • Based on this record, we conclude appellant's punishment was not cruel and unusual, and we overrule appellant's points of error. Finding no reversible error, we affirm the judgment of the trial court. lsi Davie L. Wilson Davie L. Wilson Justice Justices Cohen and Andell also sitting. Do not publish. TEX. R. ,ApP. P. 90. Judgment rendered and opinion delivered MAY 2 5 1995 True Copy Attest: ~~ Margie Thompson Clerk of Court -4­

01-03-2023

09-02-2015

https://www.courtlistener.com/api/rest/v3/opinions/3247594/

March 7, 1922. Reversed and remanded in accordance with the mandate of the Supreme Court in Ex parte virgil Thomas v. State, 207 Ala. 244, 92 So. 244.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/127785/

537 U.S. 1238 BARNESv.MISSOURI DEPARTMENT OF CORRECTIONS ET AL. No. 02-8449. Supreme Court of United States. March 3, 2003. 1 CERTIORARI TO THE COURT OF APPEALS OF MONTANA, WESTERN DISTRICT. 2 Ct. App. Mo., Western Dist. Certiorari denied. Reported below: 85 S. W. 3d 28.

01-03-2023

04-28-2010

https://www.courtlistener.com/api/rest/v3/opinions/127778/

537 U.S. 1237 THAMESv.HARKLEROAD, SUPERINTENDENT, MARION CORRECTIONAL INSTITUTION. No. 02-8377. Supreme Court of United States. March 3, 2003. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT. 2 C. A. 4th Cir. Certiorari denied. Reported below: 41 Fed. Appx. 683.

01-03-2023

04-28-2010

https://www.courtlistener.com/api/rest/v3/opinions/3224242/

The bill is for specific performance of a contract in writing for the conveyance of title to lands. The case turns largely on the construction of this contract, which is set out in full in the report of the case. Schleihauf furnished the money to pay for the lands and took title in his name. McCarty Bros. proceeded to manufacture and deliver lumber. When operations closed, the proceeds of lumber retained were more than sufficient to pay for the lands, and without more McCarty Bros. would be entitled to have the title conveyed to them. The real issue between the parties is whether Schleihauf is due to have advances made in the course of operations paid before McCarty Bros. are entitled to a conveyance of the lands. In course of operations Schleihauf bought or furnished the money to buy a truck for McCarty Bros. to be used in milling operations at a cost of $3,550. He took a chattel mortgage on the truck as security. The proceeds of lumber retained by Schleihauf applied to the entire indebtedness, namely, the purchase money of the land, money advanced in operations, and the cost of the truck, left a balance unpaid on general account of some $2,650. McCarty Bros. claim this is no charge on the land, and does not affect the right of specific performance. The purchase money on the land was in the nature of an advance secured by taking title thereto. The cost of the truck was an advance within the meaning of a contract of this character. Viewing the contract as a whole, and keeping in view the general scheme of the parties, *Page 87 we do not think $4 per thousand was set apart by the contract as a credit on the land before advances were met. "Advances," in contracts of this character, imply an interest in the product for reimbursement. Statements were rendered from time to time showing the total indebtedness, the credits thereon, and general balance as one indebtedness. No objection nor question appears to have been raised at the time. Taking a mortgage on the truck, the cost of which exceeded the first cost of the land, must, in the absence of special agreement, be considered as additional security. The complainants have not met the burden of proof assumed in their demand for specific performance — the vesting of the legal title to the lands in complainants. No question of improper or erroneous interest charges or 2 per cent. discounts is involved. The bill seeks no accounting and redemption, but is addressed solely to the right of specific performance under the present state of accounts. Affirmed. ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3448164/

Affirming. The appellee, G.H. Nantz, and W.O. Barr jointly and equally owned the fee-simple title to a tract of land *Page 461 in Daviess county, Ky., near Owensboro, containing 140 acres. On January 29, 1918, they borrowed $10,000 from the appellee and plaintiff below, Federal Land Bank of Louisville, Ky. (hereinafter referred to as the bank), and executed a mortgage on the entire tract to secure the notes executed in evidence thereof. Those notes extended over a long period of time, but they and the mortgage executed to secure them contain what is ordinarily known as "precipitating" clauses through and by which the owner of them may declare all of them due upon default of payment of any of them or any installment of interest. On January 1, 1920, Nantz sold his one-half undivided interest in all the tract to his co-owner, W.O. Barr, in consideration of the latter assuming the debt due to the bank, and the further payment to Nantz of $10,000, evidenced by ten notes of $1,000 each, and with a second lien on the entire tract to secure them. Barr paid two of them, leaving the other eight unpaid, and on January 3, 1922, Barr sold to Nantz by written contract to convey (usually designated as a title bond) 40 acres of the tract in consideration of the cancellation by the vendee of the eight notes held by him against the vendor, and which cancellation was then and there made and Nantz was put in possession of the 40 acres contracted to be conveyed to him by Barr. In the written contract, and as a part of its terms, the latter agreed with Nantz to remove the lien of the bank from the 40 acres so agreed to be sold, and to shift it to the remaining 100 acres, and which, of course, was to be accomplished, either by paying that debt or reducing it to such an amount as that the bank would agree to release its lien on the 40 acres and look only to the remaining 100 acres, or in such other manner or fashion as he saw proper to employ. That agreement, of course, was not binding on the bank, but was obligatory as between the two contracting parties, Barr and Nantz, or any acquirer of subsequent rights through either. The contract between those two also required the release of the lien from the 40 acres to be made within two years from the date of the contract, but it was not so done, and on April 29, 1925, appellant and defendant below, Mrs. William Calhoun, loaned to Barr $10,000, evidenced by his note and secured by a second mortgage on only the 100 acres retained by him after deducting the 40 acres agreed to be sold to Nantz. In that mortgage to appellant *Page 462 there was inserted this written exception: "There is excepted from the above-described tract of land (the whole tract of 140 acres) a tract containing 40 acres sold by the said W.O. Barr and Ora L. Barr (his wife) to G.H. Nantz, by bond dated January 3, 1922, and leaving in the tract hereby mortgaged one hundred acres more or less. The tract sold to the said G.H. Nantz is described as follows," etc. It is therefore clear that appellant, when she made the loan and took her mortgage, possessed actual knowledge of the title bond previously executed to Nantz for the purchase of the 40 acres, and, having such knowledge, she must also be charged with the contents of that writing (Virginia Iron Coal Co. v. Combs, 186 Ky. 261, 216 S.W. 846), and because thereof it is expressly stipulated by the parties in this cause that she actually did possess knowledge of such contents. Matters ran along with Barr defaulting in his payments to the bank, and on December 3, 1927, it filed this equity action against him in the Daviess circuit court to recover judgment for the balance of its debt, amounting to $8,855.32, with interest, and for a foreclosure of its lien on the entire 140 acres, and Nantz and appellant, Mrs. Calhoun, were made parties to or came into the cause and set up their respective claims. Upon final submission the court rendered personal judgment against Barr in favor of the bank for the balance of its debt, interest, and costs, and in favor of appellant against him for her debt, interest, and cost and directed that so much of the 100-acre tract as was necessary to satisfy the judgment in favor of the bank be first sold by the master commissioner and the proceeds applied to the payment of its judgment and that appellant's lien attached only to the surplus of that tract that was not soid, if any, or to the surplus proceeds of the sale of all of it, if all of it should be sold over and above an amount sufficient to satisfy the debt of the bank. It was further adjudged that, if the 100 acres did not bring enough to satisfy the bank's debt, then enough of the 40 acres should be sold for that purpose, and appellant was adjudged no interest in the latter tract. From that judgment appellant appeals and through her counsel insists here, as he also did in the court below, that the well-established equitable doctrine of "marshaling of assets" has no application to the facts of the case, because the rights of more than two creditors are involved, and which is the only situation, as he contends, *Page 463 for the application of that doctrine. On the contrary, he argues with much force that under the minority rule, as applied by this court in the recent case of Bronaugh v. Burley Tobacco Company, 212 Ky. 680, 230 S.W. 97, and other cases referred to in that opinion, his client was entitled to a judgment directing a sale of the two tracts, i. e., the 100 acres and the 40 acres, separately, and that the bank should be required to make its debt pro rata with appellant out of the separate proceeds of the two tracts, and that what was left of the proceeds of the 100-acre tract after both debts were so prorated should be paid to her, and what was left of the proceeds of the 40-acre tract should be adjudged and paid to Nantz. The court, however, as we have seen, adopted the insistence of learned counsel for Nantz to the effect that under the facts of this case his client was entitled to have the proceeds of the 100 acres mortgaged to appellant first applied to the existinguishment of the bank's debt, and that appellant would then be entitled to the excess proceeds, if any, but in no event was she entitled to require or demand a sale of the 40 acres agreed to be purchased by him, although the bank would have such right as against Nantz if the 100 acres did not bring enough to pay its debt. The Bronaugh case, which is the chief one relied on by learned counsel for appellant, discussed the doctrine of marshaling of assets, although there were involved the rights of more than two successive creditors, and in the opinion therein, and also in the citations therein referred to, as well as the text in 18 Rawle C. L. 456, sec. 4, and 38 C. J. 1366, sec. 3, it is pointed out that the marshaling doctrine emanates only from a promulgated equity rule for the accomplishment of substantial justice where the existing conditions call for its application for that purpose, and it does not arise to the dignity of a lien, nor to the level of contract acquired rights. Neither may the one entitled to invoke it thereby displace or to any extent impair a prior acquired lien, or contract right, so as to deprive such prior possessors of any of their rights under their contracts. 38 C. J. 1367, 1368, secs. 5, 6, and 18 Rawle C. L. 456, sec. 3. The one entitled to invoke it may shuffle the prior lienholder around, in such a manner and fashion as to not produce unreasonable delay, in the choice of procedure for the enforcement and collection of his debt, but according to the authorities, supra, as well as the dictates of the innate principles of exact justice, he cannot, by the *Page 464 exercise of the privileges conferred on him by that doctrine, deprive to any extent a prior lienholder of any of the securities which the latter has for the payment of his debt. The one asserting the right may require such prior lienholder to first exhaust a portion of his security before moving against another portion upon which the invoker of the doctrine also has a subordinate lien and for the protection of which the doctrine itself was originated; but no authority, nor any opinion of any court, permits the subsequent creditor, in the exercise of such equity right, to curtail the ultimate contractual rights of the prior lienholder, and which universally applied rule is thus stated in the text of 18 Rawle C. L. sec. 10: "The court will never marshal securities to the prejudice of the prior creditor, or so as to put his claim in jeopardy, or on any other terms than giving him complete satisfaction. For, in protecting the junior creditor's equity, the court cannot lessen the senior creditor's security or vary his contract, except so far as waiting a short time to ascertain the value of the securities can be considered as having that effect. The creditor who asserts the equity to marshal securities must show that the rights of his cocreditor will neither be endangered nor injuriously delayed, and that there is no reasonable doubt of the sufficiency of the one fund to satisfy his cocreditor's debt. Delay to the prior creditor is sometimes spoken of as a bar to the relief asked by the subsequent creditor; but mere delay, so long as it is not of an unreasonable length, is not sufficient to compel the court to deny the relief, when no other injury can occur, because some delay is a necessary consequence of the enforcement of all rights." But, as we have seen, appellant's counsel insists that the rights of his client are not governed by the foregoing principles of the doctrine of marshaling of assets, but by those announced in the Bronaugh case and others cited therein, and which is the same for which he contends, as hereinbefore pointed out, and which, as he also contends, is entirely independent of and wholly unrelated to the marshaling doctrine. He does not, however, combat the idea that, though he be correct, the doctrine of the Bronaugh case, upon which he relied, is founded only upon the same equitable principles as is the marshaling doctrine, and that the right to invoke the rule announced in the Bronaugh case does not arise to the dignity of a contractual one, but must be and is qualified or destroyed by such facts as would have like result in the application *Page 465 of any other equitable principle. In this case, as we have seen, the appellant, Mrs. Calhoun, had undisputedactual knowledge of the contract between Barr and Nantz at the time the former made his purchase of the 40 acres, to the effect that the latter would shift the lien on the entire tract of 140 acres to the 100 acres remaining after Nantz made his purchase, and to relieve the purchased tract of the burden of any portion of the bank's lien. With that actual knowledge she made her loan and took her lien only upon the 100 acres that her mortgagor had agreed should shoulder the entire first lien. Under such facts it is clear to our minds that she thereby waived, at least as between herself and Nantz, her right to insist upon the application of the principles of the Bronaugh case as insisted on by her counsel, even if all things else claimed by her counsel should be conceded by us to be correct. To hold otherwise would be most inequitable, and would allow one to profit through an established doctrine of equity, without himself doing equity, and which is contrary to the fundamental principles of equity. We therefore conclude that the judgment appealed from was and is correct, and it is affirmed.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/127800/

537 U.S. 1239 GRESHAMv.CHANDLER, WARDEN. No. 02-8665. Supreme Court of United States. March 3, 2003. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. 2 C. A. 5th Cir. Certiorari denied. Reported below: 51 Fed. Appx. 484.

01-03-2023

04-28-2010

https://www.courtlistener.com/api/rest/v3/opinions/1028772/

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-6009 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. OSCAR BROWN, JR., a/k/a Grip, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. W. Earl Britt, Senior District Judge. (7:02-cr-00014-BR-1) Submitted: April 23, 2009 Decided: May 5, 2009 Before MICHAEL, GREGORY, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Oscar Brown, Jr., Appellant Pro Se. Anne Margaret Hayes, Rudolf A. Renfer, Jr., Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Oscar Brown, Jr., appeals the district court’s order denying his motion for reduction of sentence under 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See United States v. Brown, No. 7:02-cr- 00014-BR-1 (E.D.N.C. Dec. 10, 2008). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 2

01-03-2023

07-05-2013

https://www.courtlistener.com/api/rest/v3/opinions/3224243/

* For opinion on petition for writ of certiorari to Court of Appeals, see 202 Ala. 629, 81 So. 571. The appellant, on a trial before a jury in the circuit court, was convicted of selling prohibited liquors, in violation of section 3 of the act of 1915. Acts 1915, p. 2, § 3. The jury assessed a fine of $50, for which, together with the costs of the prosecution, the appellant confessed judgment with sureties, and the court, as an additional punishment, sentenced the defendant to hard labor for the county for a term of 90 days. The act provides: "Any violation of this section of this act shall be a misdemeanor punishable by a fine of not less than fifty nor more than five hundred dollars, to which, at the discretion of the court or judge trying the case, may be added imprisonment in the county jail or confinement at hard labor for the county for not more than six months for the first conviction; and on the second and each subsequent conviction of a violation of this section the offense shall, in addition to a fine within the limits above named, be punishable by confinement at hard labor for the county for not less than three nor more than six months, to be imposed by the court or judge trying the case." Under the provisions of the act quoted, the court was authorized to impose the additional punishment. This is the only matter argued by counsel for appellant, and we find no error in the record. Affirmed.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3444731/

Reversing. The Farmers Bank Trust Company is appealing from a judgment of the Crittenden circuit court sustaining a demurrer to and upon its failure to further plead dismissing its petition in an action against the stockholders of the Bank of Marion, formerly engaged in banking business at Marion, Ky. As appears from the allegations of the petition, as amended, the Bank of Marion had for many years prior to October 11, 1930, been engaged in banking business, but on that date it was by agreement taken over by and merged with appellant. At the time of the consolidation and merger, the Bank of Marion was in bad financial condition and about to be taken over by the state banking department for the purpose of liquidation. In order to prevent such liquidation, its officers and stockholders submitted to appellant a proposal for the consolidation and merger of the two *Page 669 banks. The proposal setting forth the terms and conditions of consolidation or merger was submitted in writing, signed by all the stockholders of the Marion. Bank, and was accepted in writing and signed by all the members of the board of directors of appellant bank. Under the terms of the agreement, it was provided that the capital stock of appellant would be increased to $50,000 with a surplus of $50,000, to be divided into 500 shares of a par value of $100 each, 300 shares to be apportioned among stockholders of the Farmers Bank Trust Company in proportion to the amount of stock held by each stockholder, and 200 shares to be apportioned in like manner among stockholders of the Marion Bank. The stockholders of the Farmers Bank Trust Company guaranteed its net assets over and above its liabilities to be of a value of $60,000, and the stockholders of the Marion Bank guaranteed its assets over and above its liabilities to be of a value of $40,000. It was further agreed that the shares of stock allotted to stockholders of the Marion Bank should be issued and delivered to a board of trustees for its stockholders consisting of three such stockholders designated therein; that the stock be held by the trustees. in trust for a period of two years or until final liquidation of the assets of the Bank of Marion, with power in the trustees to vote such stock on any and all questions that might come before the stockholders of the. Bank of Marion. It was provided that the stock be placed with the trustees for the purpose of securing the payment of any shortage growing out of the above-mentioned guaranty upon the part of the stockholders of the Marion Bank. It was further provided that the assets of the Bank of Marion be liquidated within two years from date of merger, but that the maker of any specified security might be indulged by accepting a renewal or by altering or increasing security thereon with the written approval of the chairman of the board of trustees for the stockholders. The trustees were authorized by the stockholders of the Bank of Marion to do any and all things necessary and proper to accomplish the merger and to act for and on behalf of the stockholders in all matters pertaining thereto. By separate writing the trustees designated accepted the trust. At the end of the two-year period. *Page 670 provided in the agreement, the assets of the Bank of Marion had not been fully liquidated, and thereupon the trustees, for the stockholders, agreed in writing that this period be extended for an additional two years or until final liquidation of the assets; it being stated in the agreement that such extension was necessary for the benefit of the stockholders. It is further alleged that after the consolidation or merger had been effected and the assets of the Marion Bank had been turned over to appellant, it was determined that the liabilities of the Marion Bank amounted to the sum of $593,407.75; that the assets taken over by appellant amounted in value to the sum of $527,415.21; that the liabilities exceeded the assets in the sum of $65,992.54; that appellant still has on hand, as assets turned over to it by the Bank of Marion, bonds and securities of a face value of $118,600, promissory notes of a face value of $14,334.21, and notes renewed at the request of and by written consent of the board of trustees in the sum of $16,200.74. Each of the bonds, securities, and notes remaining unliquidated is listed and described in the petition, and it is alleged that they are worthless; that appellant has taken all steps and has used due diligence in keeping with banking principles to liquidate the assets and to collect or make sale of all bonds and to liquidate the notes; that suits have been filed where it was thought there was a possibility of collection, such suits being filed by J.W. Blue, chairman of the board of trustees, for the stockholders, who with the board of trustees co-operated with appellant in the liquidation of the assets; that judgments have been recovered in suits filed and executions issued which were returned "no property found"; that the board of trustees have endeavored to find market and make disposition of unliquidated assets and endeavored to collect and have deposited all bonds uncollected where bondholders' committees have been formed for the benefit of protecting the bondholders with such committees, but it has developed that no assets were available to liquidate such bonds; that it has performed in full and in detail all the duties, requirements, or obligations imposed upon or required of it under the merger agreement, and has assumed and paid all the debts and obligations of the Bank of Marion, such debts exceeding the assets in the sum of $65,599.54. The unliquidated securities, other *Page 671 than the promissory notes listed in the petition as amended, and with the exception of the Illinois-Kentucky bridge bonds of a par value of $2,000 and the Midwest State Utilities Corporation of a par value of $5,000, are real estate mortgage bonds on apartment houses and other buildings in Chicago and other cities. In sustaining the demurrer to the petition as amended, the chancellor rendered a memorandum opinion which is found in the record. After quoting from that portion of the contract appointing the trustees for the stockholders of the Bank of Marion and prescribing their powers and duties, the chancellor said in effect that any authority exercised, or attempted to be exercised, by the trustees as agents and attorneys in fact in excess of the powers conferred by the agreement, would not be binding on the stockholders of the Bank of Marion. From this and what followed, we infer that the chancellor had in mind that the trustees were without authority to extend the period for liquidation as provided in the agreement. It is stated in the opinion that it is conceded that the duties confided to and undertaken by appellant when the merger became effective on October 11, 1930, operated to make the trustees the liquidating agents of all parties concerned, and the chancellor concluded that "from that time it owed to the stockholders of each of the merged banks, vigilance and legal action to protect the assets of the Marion bank from deteriorating in value, by decline of market prices, depression of times, or otherwise, and it should have within a reasonable time prosecuted all parties, claims, accounts, bonds and other evidences of indebtedness to insolvency, as tested by judgment and execution, which would fix in the legal way all values and would have resulted either in collection or a return of 'no property found.' " Further on in the opinion it is said: "It would not do at this late date, about four years after merger, or at any other time, beyond the first available term of the court having jurisdiction of the various parties and obligations to allow plaintiff to take advantage of its own inactivity and failure to make the legal test of every asset confided to it by branding the parties 'insolvent,' *Page 672 and the securities of 'no value.' In the absence of the yard stick of legal measurement, these statements become but conclusions of the pleader, especially would this be void of equity in the face of plaintiff's allegation that some of the bonds have some value. For instance, an estimated value of $800 is placed on the $2000 bonds of Illinois-Kentucky bridge, and further plaintiff alleges that it has a lien upon those assets termed 'worthless' by it, and asks a sale of same, and application of the proceeds thereof to its claim sued on." The chancellor sums up with the conclusion that the stockholders of the Bank of Marion are entitled to have the value of the unliquidated securities fixed by judgment and execution or some legal determination, before being required to respond in "damages or debt." As recognized by the chancellor in determining the sufficiency of the petition on demurrer, its allegations must be taken as true. With the exception of the Illinois-Kentucky bridge bonds of a par value of $2,000 which appellant in its petition estimates to be of a value of $800, it is alleged that all the unliquidated notes and securities are worthless and that appellant with the assistance of the trustees for the stockholders has been unable to sell or collect or in any way realize anything from them. If this be true, which must be admitted in determining the sufficiency of the petition, it would be a useless gesture and an unwarranted expenditure and dissipation of the bank's funds in attorneys' fees and costs in reducing them to judgment and in securing an execution and return of "no property found." Such procedure would result in loss to appellees as well as to the other stockholders. If in fact any of the securities have a value, appellees will not be prejudiced by granting to appellant the relief sought, since the court may make such orders with respect to the disposition and sale of them as will fully protect appellees. No doubt a sale of the Illinois-Kentucky bridge bonds for $800, the estimated value fixed in the petition, and the other securities at such price as might be obtained for them, would subject appellant to the charge of sacrificing such assets. If appellant has been remiss in duty, as might be inferred from the chancellor's opinion, that would be a matter of defense *Page 673 which could not be considered in determining the sufficiency of the petition which alleges otherwise. It is our conclusion that the petition as amended states a cause of action, and the court therefore erred in sustaining the demurrer thereto. Wherefore the judgment is reversed for proceedings in conformity with this opinion.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/128052/

538 U.S. 912 VOGELv.ARIZONA. No. 02-8381. Supreme Court of United States. March 10, 2003. 1 CERTIORARI TO THE COURT OF APPEALS OF ARIZONA. 2 Ct. App. Ariz. Certiorari denied.

01-03-2023

04-28-2010

https://www.courtlistener.com/api/rest/v3/opinions/2928983/

Order Michigan Supreme Court Lansing, Michigan September 11, 2015 Robert P. Young, Jr., Chief Justice Rehearing No. 609 Stephen J. Markman Mary Beth Kelly 148907; 148909(108) Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein, AROMA WINES AND EQUIPMENT, INC., Justices Plaintiff/Counterdefendant-Appellant, SC: 148907 v COA: 311145 Kent CC: 09-011149-CK COLUMBIAN DISTRIBUTION SERVICES, INC., Defendant/Counterplaintiff-Appellee. __________________________________________/ AROMA WINES AND EQUIPMENT, INC., Plaintiff/Counterdefendant- Appellee/Cross-Appellant, SC: 148909 v COA: 311145 Kent CC: 09-011149-CK COLUMBIAN DISTRIBUTION SERVICES, INC., Defendant/Counterplaintiff- Appellant/Cross-Appellee. __________________________________________/ On order of the Court, the motion for rehearing is considered, and it is DENIED. 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 11, 2015

01-03-2023

09-12-2015

https://www.courtlistener.com/api/rest/v3/opinions/474401/

797 F.2d 977 Sommers Drug Stores Co. Employee Profit Sharing Trustv.Corrigan Enterprises, Inc. 85-2377 United States Court of Appeals,Fifth Circuit. 8/18/86 W.D.Tex., 793 F.2d 1456

01-03-2023

08-23-2011

https://www.courtlistener.com/api/rest/v3/opinions/3048136/

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 08-3636 ___________ Jane Y. Cloyed, * * Appellant, * * Appeal from the United States v. * District Court for the Southern * District of Iowa. Michael J. Astrue, * Commissioner of Social Security, * [UNPUBLISHED] * Appellee. * ___________ Submitted: December 7, 2009 Filed: December 10, 2009 ___________ Before BYE, BOWMAN, and BENTON, Circuit Judges. ___________ PER CURIAM. Jane Y. Cloyed appeals the district court’s1 order affirming the cessation of disability insurance benefits and supplemental security income. Cloyed alleged disability since September 2003 from migraines, pheochromocytoma, chronic obstructive pulmonary disease (COPD), problems following hand surgery, “blackouts,” and heart palpitations. After an August 2006 hearing, where Cloyed was counseled, an administrative law judge (ALJ) determined that (1) Cloyed’s 1 The Honorable Charles Wolle, United States District Judge for the Southern District of Iowa. pheochromocytoma, migraines, finger pain, and COPD were severe impairments, but they were not of listing-level severity alone or combined; (2) her statements as to the intensity, persistence, and limiting effects of her impairments after August 31, 2005, were not entirely credible; (3) based on the testimony of a vocational expert (VE) in response to a hypothetical the ALJ posed, from the alleged date of onset through August 31, 2005, Cloyed’s residual functional capacity (RFC) precluded all work; but (4) based on the VE’s testimony in response to a revised hypothetical--based in turn on a revised RFC as of August 31, 2005, when the ALJ found medical improvement related to the ability to work--Cloyed could perform certain jobs existing in significant numbers regionally and nationally. The Appeals Council denied review, and the district court affirmed. Contrary to Cloyed’s assertions on appeal, we conclude that substantial evidence supports the ALJ’s determination that after August 31, 2005, there was medical improvement in Cloyed’s migraines and episodes of heart palpitations with syncope (arising from her pheochromocytoma), and that such improvement was related to her ability to work. See Van Vickle v. Astrue, 539 F.3d 825, 828 & n. 2 (8th Cir. 2008) (standard of review); see also Delph v. Astrue, 538 F.3d 940, 945-46 (8th Cir. 2008) (medical-improvement standard requires ALJ to compare claimant’s current condition with condition existing at time she was found disabled; requisite steps in medical-improvement determination), cert. denied, 129 S. Ct. 1999 (2009). We also reject Cloyed’s related challenge to the hypothetical the ALJ posed to the VE. See Guilliams v. Barnhart, 393 F.3d 798, 804 (8th Cir. 2005) (proper hypothetical sets forth impairments supported by substantial evidence and accepted as true by ALJ). Accordingly, we affirm. _____________________________ -2-

01-03-2023

10-13-2015

https://www.courtlistener.com/api/rest/v3/opinions/3044995/

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 06-3937 ___________ Said Shaaban Mgambo, * * Petitioner, * * Petition for Review of v. * an Order of the Board * of Immigration Appeals Michael B. Mukasey,1 * * [UNPUBLISHED] Respondent. * ___________ Submitted: July 2, 2008 Filed: July 11, 2008 ___________ Before BYE, SMITH, and BENTON, Circuit Judges. ___________ PER CURIAM. Tanzanian citizen Said Shaaban Mgambo petitions for review of an order of the Board of Immigration Appeals (BIA), which dismissed his appeal of an Immigration Judge’s (IJ’s) denial of asylum, withholding of removal, and relief under the Convention Against Torture (CAT). We deny the petition. We lack jurisdiction to review the determination that Mgambo’s asylum application was barred as untimely filed. See 8 U.S.C. § 1158(a)(3); Ngure v. 1 Michael B. Mukasey, now Attorney General of the United States, is substituted as respondent pursuant to Federal Rule of Appellate Procedure 43(c). Ashcroft, 367 F.3d 975, 989 (8th Cir. 2004). With respect to Mgambo’s other requests for relief, we conclude that the denial of withholding of removal and CAT relief are supported by substantial evidence in the record. See Ming Ming Wijono v. Gonzales, 439 F.3d 868, 872, 874 (8th Cir. 2006) (standards of review). Mgambo testified that he was not harmed in Tanzania and there was no evidence indicating that any alleged prosecution or punishment he may face upon return to Tanzania would be disproportionate or a pretext for persecuting him on account of a protected ground. Cf. Kozulin v. INS, 218 F.3d 1112, 1118 (9th Cir. 2000). Finally, his allegations regarding prison conditions and mob justice do not provide grounds for reversal. Cf. Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 159-60 (2d Cir. 2005). Accordingly, we deny the petition. ______________________________ -2-

01-03-2023

10-13-2015

https://www.courtlistener.com/api/rest/v3/opinions/2892792/

NO. 07-04-0227-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D FEBRUARY 10, 2005 ______________________________ GLENDA JOHNS, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 242ND DISTRICT COURT OF HALE COUNTY; NO. A13158-9808; HONORABLE ED SELF, JUDGE _______________________________ Before QUINN and REAVIS and CAMPBELL, JJ. MEMORANDUM OPINION Appellant Glenda Johns perfected this appeal from the trial court's order revoking community supervision and assessing punishment at ten years confinement and a $1,000 fine for aggravated assault. In presenting this appeal, counsel has filed an Anders (1) brief in support of a motion to withdraw. We grant counsel's motion and affirm. In support of his motion to withdraw, counsel certifies he has diligently reviewed the record and, in his opinion, the record reflects no reversible error upon which an appeal can be predicated. Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); Monroe v. State, 671 S.W.2d 583, 585 (Tex.App.--San Antonio 1984, no pet.). Thus, he concludes the appeal is frivolous. In compliance with High v. State, 573 S.W.2d 807, 813 (Tex.Cr.App. 1978), counsel has candidly discussed why, under the controlling authorities, there is no error in the court's judgment. Counsel has also shown that he sent a copy of the brief to appellant and informed appellant that, in counsel's view, the appeal is without merit. In addition, counsel has demonstrated that he notified appellant of her right to review the record and file a pro se response if she desired to do so. Appellant did not file a response. Neither did the State favor us with a brief. In 1998, appellant was convicted of aggravated assault and sentenced to ten years confinement and a $1,000 fine, suspended for seven years. Following a motion to revoke in 2002, appellant was continued on community supervision. In April 2003, the State again moved to revoke community supervision for seven violations. Following a hearing, the trial court found that based on the testimony appellant had violated the terms of community supervision, revoked community supervision, and assessed the original punishment. By the Anders brief, counsel advances four possible arguments, to-wit: (1) the trial court erred in failing to disqualify itself; (2) the original judgment was void for placing appellant on community supervision; (3) the evidence was factually insufficient to support the revocation; and (4) trial counsel was ineffective. He then concludes that no reversible error is presented. Counsel first argues potential error by the trial court in failing to disqualify itself. Article 30.01 of the Texas Code of Criminal Procedure provides that "[n]o judge or justice of the peace shall sit in any case where he may be the party injured, or where he has been of counsel for the State or the accused, or where the accused or the party injured may be connected with him by consanguinity or affinity within the third degree, as determined under Chapter 573, Government Code." See also Tex. Const. art. V, § 11 (Vernon 1993). When a district judge is disqualified from hearing a criminal case, he is required to certify that fact to the presiding judge of the administrative judicial district who is then required to assign another judge to try the case. Tex. Code Crim. Proc. Ann. art. 30.02 (Vernon 1989). A district judge who is disqualified from hearing a case may not himself assign the case to another district court. Tex. Code Crim. Proc. Ann. art. 30.02 (Vernon 1989); Koll v. State, 143 Tex. Crim. 104, 157 S.W.2d 377 (1942). The grounds for disqualification set forth in section 30.01 of the Code and article V, section 11 are not only mandatory, they are exclusive. Gamez v. State, 737 S.W.2d 315, 318 (Tex.Cr.App. 1987); Elam v. State, 841 S.W.2d 937, 939 (Tex.App.--Austin 1992, no pet.). Further, disqualification of a judge may be raised at any time. Gamez, 737 S.W.2d at 318. On January 3, 2004, Judge Kinkaid signed an order to transfer appellant's case from the 64th District Court to the 242nd District Court of Hale County. The reason provided in the order is "exchange of bench." Nothing in the record indicates any other ground for the transfer. Section 24.303 of the Texas Government Code Annotated (Vernon 2004) provides for transfer of cases and exchange of benches. We agree with counsel that the record does not demonstrate reversible error by Judge Kinkaid in transferring the case and that appellant may pursue this issue by a writ of habeas corpus. By his second arguable point, counsel questions whether the trial court's judgment convicting appellant of aggravated assault is void for placing her on community supervision. However, counsel concludes the judgment was not void and no reversible error is presented. We agree. At the hearing on the motion to revoke, trial counsel orally moved to dismiss the State's motion alleging the 1998 judgment placing appellant on community supervision was void because she was convicted of aggravated assault which counsel believed to be a "3g offense." (2) When appellant's sentence was suspended on September 30, 1998, aggravated assault was not included, and still is not, in the list of offenses for which a judge may not grant community supervision. (3) Further, community supervision is not an option when the trier of fact affirmatively finds that a defendant used a deadly weapon. Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(2) (Vernon Pamph. Supp. 2004-05). The 1998 judgment recites that appellant was convicted of "AGG ASSLT W/DEADLY WEAPON." However, that portion of the judgment providing for findings on use of a deadly weapon recites "NA." It is well settled that the recitation of an offense accompanied by the words "deadly weapon" does not constitute inclusion in a judgment of an affirmative finding on use of a deadly weapon. Ex parte Hughes, 739 S.W.2d 869, 870-71 (Tex.Cr.App. 1987); Ex parte Brooks, 722 S.W.2d 140, 142 (Tex.Cr.App. 1986); see also Tucker v. State, 61 S.W.3d 446, 447-49 (Tex.App.-Amarillo 2001, pet. ref'd). We conclude the 1998 judgment convicting appellant of aggravated assault with a deadly weapon was not void because the offense did not fall in the category of "3g offenses" and because the lack of an affirmative finding on use of a deadly weapon excludes application of section 3g(a)(2). Counsel's third arguable point is a challenge to the factual sufficiency of the evidence to support the revocation. The sole question before us when reviewing revocation of community supervision is whether the trial court abused its discretion. Cardona v. State, 665 S.W.2d 492, 493 (Tex.Cr.App. 1984). We determine the sufficiency of the evidence by viewing it in the light most favorable to the trial court's ruling. Jones v. State, 589 S.W.2d 419, 421 (Tex.Cr.App. 1979). The State must prove by a preponderance of the evidence that appellant violated a condition of community supervision as alleged in the motion to revoke. Cobb v. State, 851 S.W.2d 871, 874 (Tex.Cr.App. 1993). Given the trial court's broad discretion and the unique nature of a revocation hearing, the general standards for reviewing factual sufficiency do not apply. Pierce v. State, 113 S.W.3d 431, 436 (Tex.App.-Texarkana 2003, pet. ref'd); Becker v. State, 33 S.W.3d 64, 66 (Tex.App.-El Paso 2000, no pet.). Appellant plead not true to the State's allegations of seven violations of the conditions of community supervision. Tara Hogan, appellant's community supervision officer, testified that appellant violated the following conditions: report as directed; provide proof of employment and maintain suitable employment or provide proof of disability and illness preventing her from working; remain in Hale County; report a change of address; make restitution payments; complete community service hours; and attend graduate equivalency diploma lab. Appellant's sister and her son testified to appellant's history of mental illness as a mitigating circumstance for her failure to comply with the conditions of community supervision and offered to assist her if community supervision was continued. Appellant's mental status was evaluated several times and although she was suffering from a depressive disorder that could be treated by medication, she was found competent to stand trial each time. Viewing the evidence in the light most favorable to the trial court's ruling, we conclude the trial court did not abuse its discretion in revoking her community supervision. By his final arguable point, counsel suggests ineffective assistance of counsel at the revocation hearing for failing to present evidence of possible grounds for disqualification of Judge Kinkaid, a request to disqualify Judge Self, and failure to request appointment of an expert regarding appellant's mental status. A claim of ineffective assistance of counsel is reviewed under the standard set out in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). (4) Under Strickland, a defendant must establish that (1) counsel's performance was deficient (i.e., fell below an objective standard of reasonableness), and (2) there is a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different, a reasonable probability being a probability sufficient to undermine confidence in the outcome. Rylander v. State, 101 S.W.3d 107, 110 (Tex.Cr.App. 2003); see also Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Cr.App. 1986). In other words, appellant must demonstrate that the deficient performance prejudiced her defense. Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Cr.App. 2002). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Garcia v. State, 887 S.W.2d 862, 880 (Tex.Cr.App. 1994), cert. denied, 514 U.S. 1021, 115 S. Ct. 1368, 131 L. Ed. 2d 223 (1995). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Cr.App. 1999). Generally, the record on direct appeal will not be sufficient to show that counsel's conduct was so deficient as to meet the first prong of the Strickland standard as the reasonableness of counsel's choices often involves facts that do not appear in the record. See Mitchell, 68 S.W.2d at 642. Counsel raises several acts of omission by trial counsel and concludes the record is not developed for appellant to overcome the presumption of sound trial strategy and demonstrate harm. We agree that the record before us does not demonstrate counsel's performance at the revocation hearing was deficient. We have also made an independent examination of the entire record to determine whether there are any arguable grounds which might support the appeal. See Penson v. Ohio, 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Cr.App. 1991). We have found no such grounds and agree with counsel that the appeal is frivolous. Currie v. State, 516 S.W.2d 684 (Tex.Cr.App. 1974); Lacy v. State, 477 S.W.2d 577, 578 (Tex.Cr.App. 1972). Accordingly, counsel's motion to withdraw is hereby granted and the judgment of the trial court is affirmed. Don H. Reavis Justice Do not publish. 1. Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). 2. Article 42.12, section 3g(a)(1) of the Texas Code of Criminal Procedure provides a list of offenses for which community supervision is not available. 3. See Act of May 8, 1997, 75th Leg., R.S., ch. 165, § 12.03, 1997 Tex. Gen. Laws 327, 438-39. 4. The Court of Criminal Appeals has overruled both Ex parte Duffy, 607 S.W.2d 507, 516 (Tex.Cr.App. 1980) and Ex parte Cruz, 739 S.W.2d 53 (Tex.Cr.App. 1987) by its decision in Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App. 1999). ; Moser v. Davis, 79 S.W.3d 162, 166 (Tex. App.–Amarillo 2002, no pet.). If no such evidence exists, we then determine whether the contrary proposition was established as a matter of law. Dow Chemical Co. v. Francis, 46 S.W.3d at 241. In turn, allegations of factual insufficiency require us to consider all of the evidence; however, we cannot nullify the verdict unless it was so weak or so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Id. at 242.           According to Burnwood, the jury should have found that Cagle breached that portion of the lease requiring him to have liability insurance on the property. This is so because the evidence was purportedly undisputed that he did not maintain such insurance. Yet, perusal of the record shows otherwise. While Cagle stated, at one time, that he had no such insurance, he also stated that he actually did. So too did he attempt to explain why he initially indicated he had none. Other evidence illustrated that Burnwood uttered no objection to the type of insurance he kept nor asserted that he was in breach until Watson came to own Burnwood.           Additionally, Greg Thornton, a friend of Ray’s who sometimes assisted Ray with his business, also testified not only that Cagle always maintained insurance but also that they had no problem about it. Thornton also stated that Ray did not maintain insurance on the building as required by the lease and that Ray had difficulty obtaining insurance because of the condition of the roof. See Case Corp. v. Hi-Class Business Systems of America, Inc., 184 S.W.3d 760, 770 (Tex. App.–Dallas 2005, pet. denied) (holding that one party to a contract cannot interfere with another party’s ability to perform).           The foregoing constitutes some evidence supporting the determination that Cagle did not breach the lease by failing to maintain insurance. And while that evidence was contradicted by other evidence, the situation merely created a credibility dispute for the jury to resolve as fact finder. Given the manner in which it did, we cannot say that weak evidence supported the decision or that the latter was so against the great weight of the entire evidence as to be clearly wrong.               Issues 5, 6, 7, and 8 - Tortious Interference with Contract           In its next four issues, Burnwood argues that the evidence is legally and factually insufficient to support the jury finding that it tortiously interfered with Cagle’s agreement with Byrd. We overrule them as well.           Again, Burnwood mentioned only one ground in its motion for new trial. That ground consisted of the allegation that Cagle could not prosecute a cause of action sounding in tortious interference because he himself breached the lease. Moreover, the only alleged breach alluded to concerned his purported failure to maintain liability insurance on the premises. Thus, the other grounds now asserted were not preserved, though evidence of record would nonetheless lead us to conclude that they too were meritless.           As for the ground that we can address, its viability depended upon Burnwood successfully attacking that part of the verdict wherein Cagle was found not to have breached the lease. Since Burnwood was unsuccessful in that matter, the current allegation lacks basis.           Accordingly, we overrule all Burnwood’s issues and affirm the judgment.                                                                              Brian Quinn                                                                           Chief Justice

01-03-2023

09-07-2015

https://www.courtlistener.com/api/rest/v3/opinions/2897470/

NO. 07-07-0354-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D APRIL 16, 2008 ______________________________ In the Interest of A.C., a child _________________________________ FROM THE 222ND DISTRICT COURT OF DEAF SMITH COUNTY; NO. DR-06A-019; HON. PHIL N. VANDERPOOL, PRESIDING _______________________________ Memorandum Opinion _______________________________ Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. Crystal Chavez and Juan Cano appeal from an order terminating their parental rights to their minor daughter, A.C. We affirm the trial court’s order. Cano Appeal Cano asserts various issues attacking the trial court’s decision. However, we do not find a statement of points itemizing the issues he intended to present on appeal. See TEX . FAM . CODE ANN . §263.405(i) (Vernon Supp. 2007); In re R.C., 243 S.W.3d 674, 675-76 (Tex. App.–Amarillo 2007, no pet.). Accordingly, we dismiss his appeal. Chavez Appeal Chavez raises three issues for us to consider. Through two, she attacks only two of the four statutory grounds found by the trial court to warrant termination. Through the third issue, she attacks the finding that termination was in the best interest of the child. We overrule each.1 As for the issues encompassing the statutory grounds for termination, we note that only one ground need be established to support an order of termination. In re N.S.G., 235 S.W.3d 358, 363 (Tex. App.–Texarkana 2007, no pet.). Chavez having addressed on appeal only two of the four grounds, she waived any complaint she had about the others. Thus, at least two grounds existed which supported the trial court’s decision. As for the issue encompassing the best interest of the child, we note that the evidence establishing a statutory ground for termination may also be considered when assessing the best interest of the child. In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). Also noteworthy are the indicia known as the Holley factors. They too are helpful in assessing the child’s best interest. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). Included among them are: 1) the desires of the child, 2) the emotional and physical needs of the child now and in the future, 3) the emotional and physical danger to the child now and in the future, 4) the parental abilities of the individuals seeking custody, 5) the programs available to assist those individuals to promote the best interest of the child, 6) the plans for the child by those individuals seeking custody, 7) the stability of the home, 8) the acts or omissions of the parent indicating that the existing parent/child relationship is not a 1 The State contends that Chavez failed to tim ely file a statem ent of points as well. W e disagree. The trial court’s order of term ination was signed on August 1, 2007, and the statem ent of points was not filed m arked until August 20, 2007. Yet, it was m ailed to the clerk on August 16, 2007. Given the m ailbox rule, See T EX . R. C IV . P. 5 (providing that any docum ent sent to the clerk in an envelope properly addressed and stam ped and is deposited in the m ail on or before the last day for filing and received by the clerk not m ore than ten days late shall be deem ed filed in tim e), Chavez satisfied the fifteen-day rule specified in the Texas Fam ily Code. See T EX . F AM . C OD E A N N . §263.405(b) (Vernon 2002) (requiring the statem ent to be filed within fifteen days of judgm ent). 2 proper one, and 9) any excuse for the acts or omissions of the parent. In re P.E.W., 105 S.W.3d 771, 779-80 (Tex. App.–Amarillo 2003, no pet.). More importantly, one need not prove that each Holley factor favors termination. Id. at 780. Nor is the list exhaustive. In re C.J.F., 134 S.W.3d 343, 354 (Tex. App.–Amarillo 2003, pet. denied). Instead, there must simply be enough evidence from which the factfinder can reasonably form a firm conviction or belief that the child’s best interest justifies termination. In re P.E.W., 105 S.W.3d at 780. The record before us showed that Chavez, who was mildly retarded and had only a ninth grade education, had been raised in a home where she was abused and neglected. Furthermore, her first pregnancy by Cano (who was in his twenties at the time) occurred when she was fifteen years old. That child was stillborn. Other evidence illustrated that Chavez eventually lived with Cano for a year and a half and that he physically threatened and abused her. After one such instance of abuse, the Department of Family and Protective Services (Department) became involved. And, though Chavez knew that she was not to see Cano, she disregarded that. Next, after the birth of A.C., the child became sick with meningitis and RSV and had to be hospitalized. Hospital personnel called the Department and reported their concerns regarding Chavez’ ability to care for the sick child. This resulted in the Department taking custody of the infant. Also appearing of record is the following evidence: 1) Chavez and A.C. were placed in several different foster homes together but had to be removed due to the poor behavior of Chavez (as exemplified by her effort to physically confront a foster parent), 2) the foster 3 parents had to constantly remind Chavez to do things for the care of the child, 3) Chavez ran away after being placed with the PAC shelter in Amarillo and having A.C. removed from her custody for holding the child by the ankles and swinging her, 4) Chavez returned to Cano after she ran away, 5) she was next placed with a shelter in Wichita Falls where she stayed for only one day before running away and being arrested for driving without a license, 6) Chavez was placed in a shelter in Lubbock but was removed after she disappeared for a time with an eleven-year-old child, 7) she failed on more than one occasion to place children in safety seats, 8) Chavez had been stopped for driving a car on the wrong side of the road when she had another infant with her and had drunk eight bottles of “Bacardi,” 9) she was resistant to learning from services offered by the Department, failed to complete counseling and parenting classes, and had a poor support system in her life, 10) she lacked the ability to parent and could not place the child’s needs above her own, according to psychological testing, 11) she had been arrested and jailed for truancy at the time of trial, 12) Chavez only worked for three weeks at the only job she ever had, 13) she gave birth to another child by another father at the time of trial and intended to live with him and have him support her and the child, 14) neither Chavez’ family nor Cano’s family had passed a home study, and 15) A.C., who was nearly two years old at the time of trial, was doing well with her foster parents, which foster parents had an interest in adopting her. Evidence that a mother cannot provide a stable, safe, and secure environment supports a finding that it is in the child’s best interest to terminate a mother’s parental rights. See Hann v. Texas Dep’t of Protective and Regulatory Services, 969 S.W.2d 77, 83-84 (Tex. App.–El Paso 1998, pet. denied) (upholding the termination because evidence 4 appeared of record illustrating that the parent could not provide such an environment). The litany of evidence itemized above established Chavez’ inability to provide such an environment. Thus, the trial court had before it evidence upon which it reasonably could have formed a firm belief or conviction that termination of the parental rights of Chavez was in the best interest of A.C. The order of the trial court is affirmed. Brian Quinn Chief Justice 5

01-03-2023

09-08-2015

https://www.courtlistener.com/api/rest/v3/opinions/127860/

537 U.S. 1243 DORSEYv.UNITED STATES. No. 02-8816. Supreme Court of United States. March 3, 2003. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. 2 C. A. 5th Cir. Certiorari denied. Reported below: 54 Fed. Appx. 407.

01-03-2023

04-28-2010

https://www.courtlistener.com/api/rest/v3/opinions/127868/

537 U.S. 1244 ALAMILLA-HERNANDEZv.UNITED STATES. No. 02-8842. Supreme Court of United States. March 3, 2003. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. 2 C. A. 5th Cir. Certiorari denied. Reported below: 54 Fed. Appx. 408.

01-03-2023

04-28-2010

https://www.courtlistener.com/api/rest/v3/opinions/2892626/

NO. 07-04-0039-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C MARCH 16, 2005 ______________________________ FIRST UNITED BANK, DIMMITT, TEXAS, SUCCESSOR TO SHADOW HILLS NATIONAL BANK, APPELLANT V. PANHANDLE PACKING AND GASKET, INC., INDIVIDUALLY AND D/B/A ARROW BEARINGS AND INDUSTRIAL SUPPLY AND NAMMCO FABRICATION AND LUBBOCK GASKET AND SUPPLY; AND LONE STAR GASKET AND SUPPLY, INC., APPELLEES _________________________________ FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY; NO. 2001-513,275; HONORABLE J. BLAIR CHERRY, JUDGE _______________________________ Before JOHNSON, C.J., and QUINN and REAVIS, JJ. OPINION First United Bank appeals the judgment of the trial court following a jury trial that Panhandle Packing and Gasket, Inc.,1 have and recover $294,974.13, plus prejudgment 1 Because the judgment makes the award of $294,974.13 to Panhandle Packing, to avoid confusion, we will refer to plaintiff/appellee as Panhandle Packing except as otherwise necessary. interest and that Panhandle Packing and Gasket, Inc., individually and d/b/a Arrow Bearings and Industrial Supply, Nammco Fabrication, Lubbock Gasket and Supply and Lone Star Gasket and Supply, Inc. recover attorney’s fees in the amount of $45,000 and $10,000 and $7,000, respectively, for appeals to the Court of Appeals and the Supreme Court of Texas. Presenting six issues, First United contends (1) it was not liable to its corporate depositor for breach of contract by cashing checks payable to the depositor and endorsed in blank by the depositor’s bookkeeper, (2) it was not liable to its corporate depositor for conversion by cashing checks payable to the depositor and endorsed in blank by the depositor’s bookkeeper, (3) it was not liable to its corporate depositor for negligence in cashing 476 checks endorsed in blank by the corporate bookkeeper over an eight-year period, (4) the trial court erred in submitting the question of damages in one broad-form question because the appropriate statutes of limitation and the award of attorney’s fees applicable to the three theories of liability cannot be determined, (5) the trial court erred in admitting evidence by an expert witness because his testimony was based on an unreliable foundation, and (6) the trial court erred in denying it dollar-for-dollar credit of the amount the depositor was paid by the bookkeeper per court-ordered restitution. We reverse and render in part and reverse and remand in part. Panhandle Packing is a Texas corporation doing business as Arrow Bearings and Industrial Supply, Nammco Fabrication, and Lubbock Gasket and Supply. Also, Lubbock Gasket and Supply is the owner of all the stock of Lone Star, a corporation. The corporations are affiliated and have common stock ownership, but Lubbock Gasket acts 2 as the parent corporation.2 At all times material here, Betty Kimbrell worked for Panhandle Packing as bookkeeper for the firms that maintained business deposit accounts. By its live pleading, among other matters, Panhandle Packing alleged: • As a normal part of its financial business, Lubbock Gasket would pay and advance funds to the Internal Revenue Service and other governmental taxing entities on behalf of itself and its other subsidiaries or divisions to pay taxes and other items owed based on the payroll of employees. In turn, each of these subsidiaries or divisions would write a check payable to Lubbock Gasket, drawn on the respective subsidiary’s or division’s own bank account at First United and sometimes at other financial institutions. The checks would be made out to Lubbock Gasket for deposit in Lubbock Gasket’s account as reimbursement for the taxes paid. • The reimbursement transaction was primarily handled by one of Lubbock Gasket’s employees, Betty Kimbrell. Unknown to Plaintiffs, Betty Kimbrell would take the reimbursement checks to First United and instead of depositing the checks at First United and into the account of Lubbock Gasket, as she was instructed to do, Betty Kimbrell would obtain cash from the tellers at First United and then use that cash to her own benefit. • Since 1993, First United allowed Betty Kimbrell to cash checks made payable to Lubbock Gasket and endorsed by Lubbock Gasket. As a result of . . . and due to the actions of First United, Plaintiffs have sustained damages in the amount of $676,776.09. The foregoing allegations were not pled in the alternative; thus, they constitute judicial admissions and were conclusively established in the case without the introduction of the 2 According to the judgment, Panhandle Packing and Gasket, Inc. is to recover $361,565.55 including interest from First United, but Panhandle Packing and Gasket, Inc., individually and d/b/a Arrow Bearings and Industrial Supply, Nammco Fabrication, Lubbock Gasket and Supply, and Lone Star Gasket and Supply are to recover only the attorney’s fees awarded. Notwithstanding the unexplained variation, for purposes of our analysis, the precise legal relationship among appellees is not controlling. 3 pleadings or presentation of other evidence. See Houston First American Sav. v. Musick, 650 S.W.2d 764, 767 (Tex. 1983). The endorsement on the checks did not contain any restriction, i.e., “for deposit only” or otherwise. Panhandle Packing did business under its own name and under the three assumed names. The embezzlement was not detected by Panhandle Packing, but was discovered when First United made inquiry about the authority of a maker on a check in 2000. A review of the records disclosed that beginning in 1993 and continuing until June 2000, the bookkeeper endorsed approximately 476 checks in blank and kept the cash proceeds totaling $676,776.09. Seeking to recover its losses caused by the bookkeeper’s embezzlement, Panhandle Packing filed suit against First United alleging breach of contract, conversion, violations of section 4.401 of the Texas Business and Commerce Code, and negligence. In addition to its general and specific denial that Panhandle Packing had not complied with all conditions precedent, First United pled the affirmative defenses of estoppel, the deposit agreement and corporate resolution, failure to satisfy conditions precedent, negligence of Panhandle Packing, comparative negligence, laches, good faith payment, payment, and multiple statutes of limitation.3 Answering the 14 questions submitted, the jury found: 3 By five special exceptions, First United asserted (1) the allegation of conversion failed to allege sufficient facts, (2) the petition did not state a specific amount of damages being sought, (3) the petition failed to identify the contract allegedly breached, (4) failure to satisfy conditions precedent, and (5) failure to plead sufficient facts regarding the bad faith claim. Because the record does not show that the exceptions were brought to the attention of the trial court, they present nothing for our review. See Tex. R. Civ. P. 90. 4 C the bookkeeper did not have authority to endorse the checks without restriction; C First United sent a statement of accounts showing payment of items for the accounts from January 1993 through June 2000; C Panhandle Packing gave First United notice that the endorsements in blank were unauthorized in June 2000; C First United failed to comply with the deposit agreement, C First United’s failure to comply with the agreement was not excused; C the negligence of First United and Panhandle Packing was a proximate cause of the occurrence; C the jury allocated 49% negligence to First United and 51% to Panhandle Packing; C First United failed to exercise good faith in paying cash to the bookkeeper; C the bookkeeper was Panhandle Packing’s agent; C First United converted Panhandle Packing’s property; C First United wrongfully exercised dominion over Panhandle Packing’s property; C $294,974.13 compensates Panhandle Packing for damages resulting from First United’s failure to comply, its negligence, or conversion; and C $45,000 attorney’s fees for the trial court, but none for appeals. First United suggests that the question for our review is whether a loss resulting from embezzlement by an employee of a bank customer should be borne by the employer or the bank. Because an appeals court should not decide a case on a theory different from that on which it was pled and tried, we will consider the issue in the context of the theory on which the case was tried in the trial court and on issues that were preserved and presented for our review. American Mut. Liability Ins. v. Parker, 144 Tex. 453, 191 S.W.2d 844, 848 (1945); El Paso Environ. Systems v. Filtronics, 609 S.W.2d 810, 813 (Tex.Civ.App.--El Paso 5 1980, writ ref’d n.r.e.). Since issues one, two, and three present no evidence challenges before we commence our analysis, we first identify the appropriate standard of review when, as here, First United did not have the burden of proof at trial. Standard of Review In reviewing a no evidence contention, we consider only the evidence that tends to support the findings and disregard all evidence to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965); Stedman v. Georgetown S. & L. Ass'n, 595 S.W.2d 486, 488 (Tex. 1979). When evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, such evidence is in legal effect no evidence and will not support a judgment. Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752, 755 (Tex. 1970). We consider only the evidence and inferences which can be drawn therefrom in the light most favorable to the jury's findings and disregard all contrary evidence and inferences. Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex. 1993); Williams v. Gaines, 943 S.W.2d 185, 190 (Tex.App.--Amarillo 1997, writ denied). In addition, the trial court instructed the jury as follows: A fact may be established by direct evidence or by circumstantial evidence or both. A fact is established by direct evidence when proved by documentary evidence or by witnesses who saw the act done or hear the words spoken. A fact is established by circumstantial evidence when it may be fairly and reasonably inferred from other facts proved. 6 The mere fact that an incident happened, standing alone, does not permit the jury to draw the inference that the incident was caused by anyone’s negligence. Citing Dow Chemical Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001), First United contends that if its evidentiary challenges are sustained, we should proceed to examine the record to determine if the contrary proposition is established as a matter of law. However, the rule discussed in Dow Chemical does not apply here because First United did not have the burden of proof on the issues we will discuss. Conversion Addressing First United’s issues in a logical rather than sequential order, we begin with issue two, by which it contends the evidence conclusively established it did not convert any instrument or engage in common law conversion as a matter of law. As suggested by its argument and presented by its motion for directed verdict, objections at the charge conference, and motion for judgment notwithstanding the verdict, we consider the issue as a no evidence challenge to the jury’s answers to questions 11 and 12 by which it found that First United converted the checks. See Hedley Feedlot, Inc. v. Weatherly Trust, 855 S.W.2d 826, 836 (Tex.App.--Amarillo 1993, writ denied). Because both parties are corporations, we first focus on the following instruction given by the trial court: [w]hen a corporation is involved, of course, it may act only through natural persons as its agents or employees; and, in general, any agent or employee of a corporation may bind the corporation by his acts and declarations made while acting within the scope of his authority delegated to him by the 7 corporation, or within the scope of his duties as an employee of the corporation. Panhandle Packing does not challenge the jury’s finding to question 10 that the bookkeeper was Panhandle Packing’s agent. Additionally, Panhandle Packing acknowledges the bookkeeper’s agency status in its brief. Because it is undisputed that First United paid the face amount of the checks to the bookkeeper as agent upon her presentment, the law of principal and agent is applicable. In Shaw v. Kennedy, Ltd., 879 S.W.2d 240, 245 (Tex.App.--Amarillo 1994, no writ), we recognized the rule that what a principal does through an agent, he does himself. In Pfluger v. Colquitt, 620 S.W.2d 739, 743 (Tex.Civ.App.--Dallas 1981, writ ref’d n.r.e.), a conversion case, the court held that where the jury found that a third party was acting as the seller’s agent, “the transaction had the same effect as if Pfluger had dealt personally with Colquitt because one who acts through a duly authorized agent is bound as if he had acted in person. See also Cash v. Lebowitz, 734 S.W.2d 396, 399 (Tex.App.--Dallas 1987, writ ref’d n.r.e.) (holding that payment to an agent had the same effect as payment directly to the principal and the agent’s subsequent conversion of the money did not defeat the rights of the person making payment). These decisions conform to the court’s instruction regarding corporate agents. 8 In the context of the definitions of conversion in question 11,4 according to the judicial admissions, the bookkeeper was the person charged with the task of preparing checks and conducting necessary banking business to accomplish reimbursement to Lubbock Gasket and when checks were presented to First United, they were “endorsed by Lubbock Gasket.” By question 12, the jury was asked whether First United wrongfully assumed and exercised dominion over Panhandle Packing’s property. Applying the appropriate standard of review to the evidence which includes the judicial admission that the checks were “endorsed by Lubbock Gasket,” we conclude there is no evidence to show the checks were paid on unauthorized endorsements or that payment was made to a person not entitled to endorse the instruments. Regarding question 12, we conclude there is no evidence to support the jury’s findings that First United wrongfully assumed and exercised dominion over the checks. Issue two is sustained. Contract By its first issue, First United contends the bookkeeper had authority to endorse the checks and it had no contractual liability as a matter of law. As suggested by the argument, we also consider this a no evidence challenge to the jury’s answers to questions 1, 5, and 9, by which it found the bookkeeper did not have authority to endorse the checks as she did, 4 “Convert” for check presented by Betty Kimbrell prior to January 1, 1996, means an instrument is paid on an unauthorized indorsement. Then “convert” for checks presented after January 1, 1996, means a bank makes or obtains payment with respect to an instrument for a person not entitled to enforce the instrument. 9 First United failed to comply with its agreements with Panhandle Packing, and First United failed to exercise good faith in cashing the checks. Authority of Bookkeeper. (Question 1). Among other things, the chief financial officer, and also director, officer, and principal shareholder of Panhandle Packing testified regarding the bookkeeper’s authority to endorse checks without any restrictive endorsement. According to his testimony, when he discovered that the bookkeeper was endorsing checks without any restrictive provision, he instructed her to discontinue the practice. Considering this evidence in the light most favorable to the jury’s finding and disregarding all evidence to the contrary, it constitutes some evidence of the absence of authority to endorse the checks without a restrictive endorsement, i.e., “for deposit only.” Good Faith. (Questions 5 and 9). By its answer to question 5, the jury found that First United failed to comply with the deposit agreement. As part of question 5, the jury was instructed as follows: Every agreement between the parties or duty arising out of the agreement imposes an obligation of good faith in its performance or enforcement. For checks presented . . . prior to January 1, 1996, “good faith” means honesty in fact in the conduct or transaction concerned. For checks presented . . . after January 1, 1996, “good faith” means honesty in fact and the observance of reasonable commercial standards of fair dealing. 10 By its answer to question 9, which included similar instructions, the jury found that First United failed to exercise good faith in paying cash to the bookkeeper. Among other evidence, Panhandle Packing introduced First United’s multi-page document entitled “Teller Performance Standards” which was admitted after counsel announced he had no objection. An employee of First United testified to the performance standards and described her training. She and another employee testified that the practice of paying cash to the bookkeeper was contrary to the standards. In Riley v. First State Bank, 469 S.W.2d 813, 816 (Tex.Civ.App.–Amarillo 1971, writ ref’d n.r.e.), we held that the test of good faith is not diligence or negligence. Similar issues were considered in Texas Stadium Corporation v. Savings of America, 933 S.W.2d 616 (Tex.App.--Dallas 1996, writ denied). In affirming a summary judgment, the court concluded that the fact that some of the bank employees had acknowledged that endorsements on the checks did not comply with internal policies did not, standing alone, raise a fact issue on good faith. Id. at 619-20. However, according to the summary judgment evidence, the bank employees had no knowledge of the embezzlement. In addition, the court held that even though acceptance of the checks may have constituted negligence, any negligence did not constitute bad faith and concluded the bank acted in good faith unless it had knowledge of the embezzlement. Here, however, First United announced it had no objection to admission of the teller performance standards into evidence and did not request a limiting instruction. Accordingly, the standards were before the jury for all purposes. Tex. R. Evid. 105(a); Birchfield v. Texarkana Memorial Hosp., 747 S.W.2d 361, 365 (Tex. 1987); See also Cigna 11 Ins. Co. of Texas v. Evans, 847 S.W.2d 417, 421 (Tex.App.--Texarkanna 1993, no writ) (holding that in the absence of any directive to the fact finder to consider a piece of evidence only for a limited purpose, it may consider it for any and all purposes.) Notwithstanding Riley and Texas Stadium, because First United did not request that the teller performance standards be admitted for a limited purpose or that an appropriate instruction be given to the jury, the evidence was before the jury for all purposes. Based on this record, we conclude the teller performance standards and the testimony of the bank employees constituted some evidence of the absence of good faith. Issue one is overruled. Global Damage Question By its fourth issue, First United contends the faulty submission of the global damage question prevented it from asserting its defenses that, alternatively, deny recovery to Panhandle Packing as a matter of law. We agree. By question 13, the jury was asked: [w]hat sum of money, if now paid in cash, would fairly and reasonably compensate Panhandle Packing and Gasket, Inc., for its damages, if any, that resulted from either First United Bank’s failure to comply with the Deposit Agreement, if any, First United Bank’s negligence, if any, or First United Bank’s conversion, if any. Do not add any amount for interest, if damages, if any. Answer in dollars and cents, if any. Answer: $ 294,974.13 At the charge conference, counsel for First United objected as follows: 12 • it is an improper submission as to global damages as to each cause of action; • there is no evidence, or there is insufficient evidence and an inability for the jury to determine the amount of damages for each claim separately; and • each cause of action should have its own damage claim. After overruling the objections, the court submitted the charge to the jury. In Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 388-89 (Tex. 2000), the Court disapproved of the global damage issue which submitted multiple theories of recovery. After discussing a single broad-form damage question which commingled invalid theories of liability with valid theories, the Court held the error was harmful because it could not be determined whether the improperly submitted theories formed the sole basis for the jury’s finding. Here, having held there was no evidence to support the submission of the conversion ground, the rule announced in Crown Life is controlling. See also Iron Mt. Bison Ranch v. Easley Trailer Mfg., 42 S.W.3d 149, 156 (Tex.App.--Amarillo 2000, no pet). Moreover, the prejudice and harm resulting from submission of multiple theories in one question is magnified because application of the statute of limitations to a given factual situation is a question of law, See Musgrave v. Brookhaven Lake Owners, 990 S.W.2d 386, 397 (Tex.App.--Texarkana 1999, pet. denied). The applicable statutes of limitation to the three distinct theories of recovery cannot be determined. Although First United pled various 13 statutes of limitation, because of the global submission of multiple theories, the court was unable to apply the appropriate limitations statute.5 Issue four is sustained. Negligence By it’s third issue, First United contends the evidence established it was not negligent in cashing the checks. By its answer to question 8, the jury found Panhandle Packing 51 percent negligent. Accordingly, it may not recover damages if its percentage of responsibility is more than 50 percent. Tex. Bus. & Com. Code Ann. §§ 33.001 & 33.002(a) (Vernon 2002). Further, by its motion for judgment, Panhandle Packing did not seek judgment based on negligence. Considering our disposition of the case and the jury’s finding that Panhandle Packing’s responsibility was greater than 50%, it is unnecessary to address this issue. We do not have authority to render advisory opinions. Firemen’s Ins. Co of Newark, New Jersey v. Burch, 442 S.W.2d 331, 333 (Tex. 1968); See also Tex. Const. art. V, § 8. Our disposition of First United’s second and fourth issues pretermits consideration of the remaining issues. Having held there was no evidence to support the jury’s finding of conversion and that submission of the damage question on three theories of recovery was 5 By it’s motion for judgment, Panhandle Packing alleged that contract damages based on a four-year statute of limitations would be $333,435.14; based on a three-year statute would be $198,675.32 per section 3.118 of the Business and Commerce Code; and based on a two-year statute would be $107,683.83 per section 16.003 of the Texas Civil Practice and Remedies Code. 14 harmful error, but having overruled First United’s no evidence challenge on the contract claim, we reverse and render in part and reverse and remand in part. Accordingly, the judgment of the trial court is reversed and judgment is hereby rendered that Panhandle Packing and Gasket, Inc. take nothing against First United Bank of Dimmitt on its statutory and common law conversion claims and negligence claim; that portion of the trial court’s judgment regarding Panhandle Packing’s contract claim on its deposit agreement is reversed and the cause is remanded for further proceedings. Don H. Reavis Justice Johnson, C.J., not participating. 15

01-03-2023

09-07-2015

https://www.courtlistener.com/api/rest/v3/opinions/2899556/

NO. 07-08-0316-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D MARCH 25, 2009 ______________________________ LEE JOSEPH REDDIC, SR., APPELLANT V. LARRY REDDIC, APPELLEE _________________________________ FROM THE 99TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2006-537,398; HONORABLE WILLIAM C. SOWDER, JUDGE _______________________________ Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.   CONCURRING OPINION           I join in the Court’s opinion and write separately simply to point out another reason for affirming the trial court’s judgment. As the Court states, all of appellant Lee Joseph Reddic, Sr.’s issues on appeal focus on the precept that limitations does not begin to run against a co-tenant until the adverse co-tenant repudiates the co-tenancy. Appellee Larry Reddic cites Republic Production Co. v. Lee, 132 Tex. 254, 121 S.W.2d 973, 978 (Tex. 1938) for the proposition that a recorded conveyance inconsistent with a non-possessing co-tenant’s title, followed by possession, may serve to give the co-tenant the required notice of repudiation. Gossett v. Tidewater Associated Oil Co., 436 S.W.2d 416, 420-21 (Tex.Civ.App.–Tyler 1968, writ ref’d n.r.e.), which the Court cites, recognizes the same proposition. I believe the trial court’s judgment can be sustained on the basis of those holdings, apart from the rationale that the property was the sole management community property of Rose Mae Cotton.   James T. Campbell                                                                                                 Justice N>Id. at 938. The situation before us is akin to that in Quin. Here, as there, appellant failed to explain to the trial court, via evidence or argument, "the distinctions and differences in approach between a neurologist and [psychiatrist] . . . prior to a ruling on the motion. . . ." (4) Id. Nor can we conclude that such differences were so patently apparent that they did not have to be stated. Id. Given this, "we perceive no harm suffered by appellant due to the court's [alleged] refusal to appoint a neurologist." Id. Accordingly, we affirm the judgment entered below. Brian Quinn Justice Do not publish. 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. 2002). 2. Though the record indicates that Dr. Shaw was a psychiatrist, it does not reveal whether he was also a neurologist. That would seem pertinent to the extent appellant argues he was entitled to an examination by a neurologist as well as a psychiatrist. For purposes of this appeal, however, we will assume that Shaw is not a neurologist. 3. Immediately before trial and in relation to another pretrial motion, appellant represented to the court that it denied his request to be examined by a neurologist. Yet, he did not cite to any particular order; nor did we find one in the record before us. Instead, we can only deduce that appellant assumed the trial court overruled that aspect of his motion. 4. Appellant's attempt to explain those differences for the first time in his appellate brief via references to several books comes too late. Simply put, they were not grounds presented below as required by Texas Rule of Appellate Procedure 33.1(a). See Oulare v. State, 76 S.W.3d 231, 233 (Tex. App.-Amarillo 2002, no pet.) (holding that the specific grounds for the objection must be stated to preserve the complaint for appeal). Nor do we find evidence of record indicating that Dr. Shaw could not or would not detect maladies which a neurologist could or would. In other words, if a psychiatrist (who is a trained medical doctor) could perform tests like those which a neurologist could perform there may be no need for the appointment of a neurologist.

01-03-2023

09-09-2015

https://www.courtlistener.com/api/rest/v3/opinions/4050905/

MANDATE THE STATE OF TEXAS TO THE 216TH JUDICIAL DISTRICT COURT OF KENDALL COUNTY, GREETINGS: Before our Court of Appeals for the Fourth District of Texas on February 4, 2015, the cause upon appeal to revise or reverse your judgment between Carolyn Jane Babbitt, Appellant V. Ronald Hugh Below, Appellee No. 04-13-00759-CV and Tr. Ct. No. 64 was determined, and therein our said Court of Appeals made its order in these words: In accordance with this court’s opinion of this date, we REVERSE the part of the trial court’s judgment awarding interest and attorney’s fees. We AFFIRM the remainder of the trial court’s judgment. We REMAND the case to the trial court for a recalculation of interest consistent with this opinion and for a new hearing on attorney’s fees. The parties shall be responsible for their own costs of this appeal. WHEREFORE, WE COMMAND YOU to observe the order of our said Court of Appeals for the Fourth District of Texas, in this behalf and in all things have the order duly recognized, obeyed, and executed. WITNESS the Hon. Sandee Bryan Marion, Chief Justice of the Court of Appeals for the Fourth District of Texas, with the seal of the Court affixed and the City of San Antonio on April 15, 2015. KEITH E. HOTTLE, CLERK Cynthia A. Martinez Deputy Clerk, Ext. 53853  BILL OF COSTS TEXAS COURT OF APPEALS, FOURTH DISTRICT, AT SAN ANTONIO No. 04-13-00759-CV Carolyn Jane Babbitt v. Ronald Hugh Below (NO. 64 IN 216TH JUDICIAL DISTRICT COURT OF KENDALL COUNTY) TYPE OF FEE CHARGES PAID BY COPIES $4.30 PAID NONE GIVEN MOTION FEE $10.00 E-PAID JO CHRIS LOPEZ REPORTER'S RECORD $948.70 PAID MS. CHRISTINE THARP CLERK'S RECORD $221.00 UNKNOWN N/A STATEWIDE EFILING FEE $20.00 E-PAID BETH WATKINS FILING $100.00 E-PAID BETH WATKINS SUPREME COURT CHAPTER 51 FEE $50.00 E-PAID BETH WATKINS INDIGENT $25.00 E-PAID BETH WATKINS Balance of costs owing to the Fourth Court of Appeals, San Antonio, Texas: 0.00 Court costs in this cause shall be paid as per the Judgment issued by this Court. I, KEITH E. HOTTLE, CLERK OF THE FOURTH COURT OF APPEALS OF THE STATE OF TEXAS, do hereby certify that the above and foregoing is a true and correct copy of the cost bill of THE COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS, showing the charges and payments, in the above numbered and styled cause, as the same appears of record in this office. IN TESTIMONY WHEREOF, witness my hand and the Seal of the COURT OF APPEALS for the Fourth District of Texas, this April 15, 2015. KEITH E. HOTTLE, CLERK Cynthia A. Martinez Deputy Clerk, Ext. 53853

01-03-2023

09-29-2016

https://www.courtlistener.com/api/rest/v3/opinions/997311/

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 98-7060 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus FRANKLYN GARCIA, Defendant - Appellant. Appeal from the United States District Court for the Middle Dis- trict of North Carolina, at Greensboro. William L. Osteen, Sr., District Judge. (CR-94-130, CA-97-630-2) Submitted: October 20, 1998 Decided: November 30, 1998 Before WIDENER and MICHAEL, Circuit Judges, and PHILLIPS, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Franklyn Garcia, Appellant Pro Se. Richard Stanley Glaser, Jr., Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Appellant seeks to appeal the district court’s order denying his motion filed under 28 U.S.C.A. § 2255 (West 1994 & Supp. 1998). We have reviewed the record and the district court’s opinion accepting the recommendation of the magistrate judge and find no reversible error. Accordingly, we deny a certificate of appealabil- ity and dismiss the appeal on the reasoning of the district court. United States v. Garcia, Nos. CR-94-130; CA-97-630-2 (M.D.N.C. June 17, 1998). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 2

01-03-2023

07-04-2013

https://www.courtlistener.com/api/rest/v3/opinions/127874/

537 U.S. 1245 JOHNSON ET VIRv.EMERALD GREENS PROPERTY OWNERS ASSOCIATION BOARD OF DIRECTORS ET AL., ante, p. 1109; No. 02-694. Supreme Court of United States. March 3, 2003. 1 Petition for rehearing denied.

01-03-2023

04-28-2010

https://www.courtlistener.com/api/rest/v3/opinions/4268577/

STATE OF VERMONT ENVIRONMENTAL COURT } In re: Marcelino Waste Facility } Docket No. 44-2-07 Vtec (Appeal from Act 250 JO #4-205, 3rd Recons.) } } } Decision on Motion for Permission to Take an Interlocutory Appeal This matter concerns a jurisdictional opinion issued by the District #4 Environmental Commission Coordinator (“District Coordinator”), concerning the need for an Act 250 permit for the A. Marcelino & Company Facility (“Marcelino Facility”), a recycling facility located in South Burlington, Vermont. Ranger Asphalt and Concrete Processing, Inc. (“Ranger”), first requested the jurisdictional opinion and then appealed the District Coordinator’s 2nd reconsideration of that jurisdictional opinion, dated January 23, 2007, in which the District Coordinator announced his determination that the improvements to the Marcelino Facility did not constitute development so as to trigger Act 250 jurisdiction. The owners of the Marcelino Facility (“Marcelino”) thereafter filed a motion to dismiss Ranger’s appeal to this Court, which was denied in an opinion dated May 30, 2007. On September 18, 2007, Marcelino filed a request for reconsideration, arguing that Ranger is not a proper party to appeal in this case. This motion for reconsideration was denied on October 4, 2007. On October 16, 2007, Marcelino filed a Motion for Permission to Take an Interlocutory Appeal; that motion is now ripe for this Court’s consideration. In deliberating over the motion at hand, this Court decided, sua sponte, to revisit the May 30, 2007 Decision denying Marcelino’s motion to dismiss. Taking into consideration further research and deliberation over the applicable law, this Court hereby reverses its May 30, 2007 Decision and grants Marcelino’s motion to dismiss. Accordingly, Marcelino’s motion for permission to take an interlocutory appeal is now moot and therefore denied.1 Discussion Appellee Marcelino has consistently maintained that Ranger should not be granted party status under 10 V.S.A. §§ 8502 and 8503, because Ranger has not alleged an injury. Therefore, 1 Also pending is Ranger’s motion to compel Marcelino’s answers to certain discovery requests. Due to the Decision announced here, that motion is now also moot and therefore denied. 1 a careful analysis of this claim is warranted. This Court’s analysis of the statutes2 begins with 10 V.S.A. § 6007(c), which states that “any person” may request a jurisdictional opinion (“JO”) from a district coordinator. From this general right, Ranger has argued, and this Court has repeatedly agreed, flows the right to appeal to this Court when the requested JO is adverse to the desires of the requesting party. In this light, we have previously concluded that Ranger, after having suffered a reconsideration of the requested JO not to its liking, is a “person aggrieved” who is entitled to appeal. Our further examination of this legal issue has led us to the conclusion that we were not correctly interpreting the term “person aggrieved,” as used in the applicable statutes. While the right to request a JO is granted to all, the right to appeal a JO is limited to parties that meet certain specific statutory requirements.3 Section 6007(c) has been discussed at length by the former Vermont Environmental Board (“E-Board”) in its prior decisions. A brief discussion of the E-Board’s past interpretation of similar statutory language is therefore warranted.4 The first point of note is that the E-Board recognized a difference between standing and party status. See Re: Putney Paper Company, Inc., Declaratory Ruling Request #335, Findings of Fact, Conclusions of Law, and Order at 5-6 (Vt. Envtl. Bd., May 29, 1997) (stating that “standing” is the proper analysis when parties wish to appeal; analysis of “party status” is reserved for when new parties seek to join an action initiated by another). It therefore seems that the proper argument to be analyzed in this matter is whether Ranger has standing, rather than party status, to appeal to the Environmental Court. The mere fact that Ranger was the party that originally requested the JO does not alone control our determination of Ranger’s standing to bring this appeal. See Re: Alpine Pipeline Company, Declaratory Ruling Request #415, Memorandum of Decision at 7 (Vt. Envtl. Bd., Jan. 3, 2003) (“The legislature clearly created a 2 Where statutory language is clear and unambiguous, the court must apply the plain meaning of the language used therein. Watson v. Dimke, 178 Vt. 504 (2005). The forthcoming analysis of the statutes will adhere to this rule of construction. 3 10 V.S.A. § 6007(c) concludes with the statement, “A jurisdictional opinion of a district coordinator shall be subject to a request for reconsideration in accordance with the rules of the board and may be appealed to the environmental court pursuant to chapter 220 of this title.” 4 Prior to enactment of the Permit Reform Law, which vested this Court with expanded jurisdiction, Act 250 appeals (including appeals from jurisdictional opinions) were heard and ruled upon by the former Environmental Board. Under the revisions to 10 V.S.A. § 8504(m), we are directed to give “[p]rior decisions of the Environmental Board . . . the same weight and considerations as prior decisions of the Environmental Court.”. 2 different threshold for requesting a jurisdictional opinion (‘any person’) and appealing a jurisdictional opinion (only certain interested parties).”). In order to demonstrate standing under §6007(c) in proceedings that were previously appealed to the E-Board, the party seeking to appeal had to show that any proposed plans for development will affect their protected interests; that is, those interests specifically protected by any one of the ten Act 250 criteria or their sub-criteria.5 See Re: Stone Cutter's Way/Winooski East Waterfront Redevelopment Project, Declaratory Ruling Request #391, Memorandum of Decision (Vt. Envtl. Bd., June 1, 2001) (where a party was not able to demonstrate injury to a protected interest, that party did not have standing to appeal). See also Putney Paper Company, Inc., Declaratory Ruling Request #335 at 4–5 (where the party’s interests were not affected by the outcome of the District Coordinator’s JO, that party did not have standing to appeal to the E- Board). The E-Board’s discussions and rulings on the issue of standing to appeal a JO consistently maintain that the right to appeal is limited to those parties that meet the requirement of standing. The interests protected under Act 250 are not procedural interests, but are substantive interests that give rise to substantive rights, including the right to appeal. The E-Board also recognized that the test for standing is similar in E-Board cases and civil cases. See Stone Cutter’s Way, Declaratory Ruling #391 at 6 n.2, referencing Parker v. Town of Milton, 169 Vt. 74, 77 (1998) (reciting the three elements of standing: (1) injury in fact, (2) causation, and (3) redressability). Accordingly, the legislature limited the right to appeal in civil courts to those who can show that a particularized interest protected by Act 250 will be harmed. This limitation is stated in 10 V.S.A. § 8504 (entitled “Appeals to the Environmental Court”), which states that “any person aggrieved” by a JO issued by a district coordinator may appeal that decision to the Environmental Court. For Ranger to have the proper status to appeal this JO, Ranger must meet this express statutory limitation.6 It must qualify as a “’[P]erson aggrieved . . . who alleges an injury to a 5 These criteria are, briefly stated: water and air pollution, water availability, burdens upon streams, protected wetlands and water supplies, soil erosion, transportation concerns, burdens upon educational facilities, provision of government services, effects on aesthetics and area wildlife, conformance with the Capability and Development Plan, and conformance with local and regional plans. 6 Ranger acknowledges in its response to Marcelino’s motion for permission to take an interlocutory appeal that the Vermont legislature has expressly restricted the right to appeal under Act 250. Ranger also states that the statutory provisions applicable to appeals from district coordinators’ jurisdictional opinions are more lenient than those that apply to decisions from the district commissions. Whether this is true is material to our analysis here. However 3 particularized interest protected by the provisions of law listed in section 8503 of this title, attributed to an act or decision by the district coordinator, . . . that can be redressed by the environmental court or the supreme court.” 10 V.S.A. § 8502(7). Stemming from this definition are four main points of discussion: (1) an injury must be alleged; (2) to a particularized interest protected by the provisions of law; (3) that is injured or affected by the act of the district coordinator in rendering the JO; (4) that can be redressed either by this Court or our Supreme Court. Our review of the record presently before us fails to provide evidence of Ranger satisfying any of these four statutory requirements for standing. It is for these reasons that we choose to revisit our May 30th Decision and enter a dismissal of Ranger’s appeal. Section 8503(b)(2) states that Title 10, Chapter 220 (§§ 8501-8505) applies to appeals concerning jurisdictional opinions issued by a district coordinator under Act 250. A careful reading of this provision leads to the conclusion that Chapter 220 governs the appeals process, but § 8503 does not, by itself, give rise to the specific right to appeal. Rather, this Chapter as a whole should be read to require that parties seeking to appeal must first meet the statutory requirements set forth in the provisions of Chapter 220 in order to bring such appeal. Stated another way, parties have the right to appeal a JO if there is a specific allegation of injury to an interest protected by the provisions of law referenced in §8503. Appellant Ranger argued in its October 1, 2007 response to Marcelino’s motion for reconsideration that “Ranger’s particularized interest protected by §8503, therefore, is its legal right to request a jurisdictional opinion . . ..” This Court disagrees, for the simple reason that while “all persons” are entitled to request a JO, the class of persons that are entitled to appeal a JO is more restricted. The proper analysis is to determine whether Ranger has established in the record before us that it has an interest protected by the provisions of Act 250 itself (i.e.: Title 10, Chapter 151, as referenced in 10 V.S.A. § 8503(b)(2)). Act 250 provides the process by which parties seeking to develop or subdivide land may do so by obtaining the proper state land use permit; it also provides for an appeals process through which parties may appeal adverse decisions regarding permits granted or denied. These processes are not necessarily the interests to be protected under Act 250; they are the means by which certain interests are protected. The interests sought to be protected by Act 250 concern lenient §8504(a) may be, it is not so lenient as to grant all persons the right to appeal a JO. The limitations are stated expressly in § 8504(a) and the other provisions comprising Chapters 151 and 220 of Title 10. 4 development and land use issues.7 If not for these interests, this Court is left to question why a permit would be necessary at all, and therefore, why an appeal of an adverse decision should be allowed. As stated in Ranger’s response to Marcelino’s motion for reconsideration, the intent behind Act 250 is to promote land development that is “not unduly detrimental to the environment, will promote the general welfare . . . and [is] suitable to the demands and needs of the people of this state.” 1969, No. 250 (Adj. Sess.), § 1, eff. April 4, 1970. This statement does not purport to rationalize granting all parties the right to appeal in Act 250 proceedings, but rather serves to underscore the interests protected by the provisions of Act 250, and the need for the permitting and appeals process to effectuate the goals of this legislation. It also underscores the need for the general public to actively protect these interests. Accordingly, the statutes allow any party to request a JO. But the right to appeal a JO is expressly limited by Chapter 220 to those whose interests are specifically protected by Act 250, and further limited to the right to appeal a JO that has detrimentally affected those protected interests. Another point of discussion flows from the above considerations; that is, parties must allege an injury to the particularized interests protected under §8503. Appellant Ranger argues that the injury it sustained was “that it did not prevail before the district coordinator.” This allegation is insufficient to grant standing to appeal, for two reasons: first, it is not an injury to an interest protected by Act 250; second, it is not alleging an actual injury. To merely allege an adverse opinion, without showing an actual injury caused by the opinion, is contrary to the legal requirement of “case or controversy.”8 The injury alleged cannot be a “generalized grievance.” Hinesburg Sand & Gravel Co., Inc. v. State, 166 Vt. 337, 341 (1997). Rather, appellant must allege injury in fact. Id. The requirement that the appellant allege an injury, as is stated in the definition of “person aggrieved,” should not be read in such as way as to contravene the long- standing requirements of standing.9 7 Vermont courts have recognized the purpose of Act 250: “to regulate the impacts of development.” In re Vermont RSA Ltd. Partnership, 2007 VT 22, ¶ 9 (citing In re Audet, 2004 VT 30, 176 Vt. 617 (mem.)). A list of specific criterion that must be satisfied before a permit is issued is provided in 10 V.S.A. § 6086; these are commonly known as the Act 250 criteria. See supra note 4. 8 Agency of Natural Resources v. United States Fire Ins. Co., 173 Vt. 302, 306 (2001) (“Vermont has adopted this requirement and with it the requirement that for plaintiffs to have standing to bring a case, they must have suffered a particular injury that is attributable to the defendant and that can be redressed by a court of law.”) 9 Considered to be a fundamental element of standing, “’Injury in fact’ is defined as ‘the invasion of a legally protected interest.’ Determining whether plaintiff has suffered an invasion of a legally protected interest requires 5 Our analysis thus far leads to a short discussion of the third and forth requirements for standing contained in 10 V.S.A. § 8502(7): that the JO being appealed must have impacted upon the specific protected interest of this litigant, and that either this Court or our Supreme Court can redress the impact upon the protected interest. Since Ranger has not identified an interest protected by Chapter 151 of Title 10 (i.e.: Act 250), the JO challenged here cannot be said to have injured a “particularized interest”, thus providing this Court or the Supreme Court with an injury it may redress. Thus, Ranger has not satisfied the requirements of 10 V.S.A. §§ 8502(7), 8503(b)(2) and 8504 (a) that would entitle it to have standing to appeal the District Coordinator’s JO in this case. In sum, this Court now reads Title 10, Chapter 220 to state that parties have the right to appeal a JO issued by a district coordinator, if the party specifically alleges (1) an injury; (2) to a particularized interest protected by Act 250; (3) that the JO somehow injures or impacts; (4) provided that such injury can be redressed by this Court or our Supreme Court. The particularized interest protected here is not the right to request or appeal a JO, but rather the interests considered in the provisions of Act 250 itself. In the case at hand, Ranger has made no showing of injury attributed to the adverse JO that adversely affected an interest protected under the provisions of Act 250. Absent a showing of such injury, Ranger cannot have standing to appeal the JO in this matter. Conclusion For the reasons stated above, this Court, on a sua sponte basis, believes it appropriate to revisit its May 30, 2007 Decision and hereby grants Marcelino’s Motion to Dismiss. All subsequent motions are now moot, as this appeal is dismissed. A Judgment Order accompanies this Decision, thereby concluding the proceedings now before this Court. Done at Berlin, Vermont this 6th day of November, 2007. ___________________________________ Thomas S. Durkin, Environmental Judge inquiry into the substance of plaintiff's claim.” See Hinesburg, 166 Vt. at 341 (internal citations omitted). In this matter, Ranger has not put forth any substantive claims of injury to an interest protected by Act 250. 6

01-03-2023

04-24-2018

https://www.courtlistener.com/api/rest/v3/opinions/3453053/

Affirming. *Page 619 This appeal is prosecuted from judgments of the Franklin circuit court and the Mercer circuit court, wherein the trial courts sustained in each instance special demurrers to appellants' respective petitions filed therein, requesting an inquest relative to the mental condition of Neal Bowman, when then under death sentence for murder. Neal Bowman, the subject of the insanity inquests petitioned in both the Franklin and Mercer circuit courts, was indicted by the Mercer county grand jury, charged with the crime of willful murder. Upon his trial of the charge, wherein no plea of insanity, but only one of not guilty, was made, he was convicted and sentenced to death. Upon his motion for a new trial being overruled, judgment was pronounced against him. An appeal was thereupon prosecuted, and, as provided by law, the sentence was suspended by the clerk of the Court of Appeals pending its final determination of the appeal. During the interim of the pendency of the appeal, Bowman was by the Mercer circuit court ordered removed and incarcerated in the reformatory at Frankfort for safekeeping. While such was the situation, on September 13, 1965, a petition was filed, and verified, by L.D. Stucker (chaplain of the reformatory at Frankfort), in the Franklin circuit court, in which it was asserted that "Neal Bowman is a person of unsound mind and a lunatic, whose father and mother are non-residents of the state of Kentucky; that he is unmarried; and that he is in the custody of the warden of the state reformatory" for safekeeping, under an order of the Mercer circuit court, and requesting that an inquest be held by the Franklin circuit court to determine his then sanity. The matter having been brought before the court on September 15, 1935, the commonwealth, by special demurrer, objected to the jurisdiction of the Franklin circuit court to try the said case, and also attacked the sufficiency of the petition and affidavit filed by L.D. Stucker by general demurrer thereto. The trial court, in sustaining the special demurrer of the commonwealth to its jurisdiction (it is stated in brief), based its decision on the fact that Bowman was *Page 620 only temporarily held in the reformatory at Frankfort upon the order of the judge of the Mercer circuit court, and that technically Bowman was still subject to the orders of the Mercer circuit 'court and without the jurisdiction of the Franklin circuit court. Also it sustained the general demurrer to the petition. Whereupon, the petitioner declining to plead further, the petition was dismissed and judgment rendered in favor of the commonwealth, to all of which the petitioner excepted and prayed an appeal to the Court, of Appeals, which was granted. On September 26, following these proceedings for a lunacy inquest had in the Franklin circuit court, appellant D.T. Brummette, a "reputable citizen" of Mercer county, filed a like petition, with supporting affidavits, in the Mercer circuit court, containing substantially the same allegations and the same prayer as the previous petition filed by Stucker in the Franklin circuit court, wherein Brummette requested that an inquest relative to the mental condition of Bowman be held and conducted in the Mercer circuit court. A special demurrer was also filed thereto by the commonwealth and county attorneys, representing it in the proceeding, wherein they particularly set out as grounds that the court had no jurisdiction of the person of Neal Bowman, a nonresident of Mercer county and then absent therefrom, nor did it have any jurisdiction of the proceeding, in that Bowman was not a resident of the county nor then in said county, etc., and was further without jurisdiction because the said Bowman was then in the custody of the warden of the State Reformatory at Frankfort, committed to his custody by order of the Mercer circuit court after sentence pronounced therein for murder, and that the prosecution in which said order was made had been appealed to the Court of Appeals and was then pending therein, and that during such pendency of the appeal, the Mercer circuit court could make no order relative to the disposition of the person of Neal Bowman, committed to the said warden under order made in the case which was then pending before the Mercer circuit court; and, further, that no jurisdiction was vested in the court to pass upon the sanity or insanity of Bowman when not a resident of nor located within Mercer county, and when then under sentence for crime. *Page 621 The trial court sustained said special demurrer and dismissed the petition, to which order the petitioner excepted and prayed an appeal to the Court of Appeals, which was granted. Complaining of these rulings, the petitioner Stucker thereupon brought an original action in this court, under section 110 of the Constitution, to require it to determine which of the aforesaid trial courts had jurisdiction to determine the sanity of Bowman upon appropriate application by an individual, while the same was pending in this court upon appeal and awaiting its action upon Bowman's petition for rehearing. This court denied the petition for a writ of prohibition, in accordance with its well-established, uniform rule of construction of section 110, that adequate relief was afforded the petitioner by appeal. Due to such pronouncement made in denying the prohibitory writ, appeals have been taken from the rulings of both the Franklin and Mercer circuit courts in sustaining the special demurrer, which are here consolidated, discussed, and treated as one appeal, and which we will likewise so deal with and dispose of them in one opinion. The appellants urge that the findings of the lower courts are reversibly erroneous in their respective rulings; by the Franklin circuit court in sustaining both the special and general demurrers therein filed, and by the Mercer circuit court in sustaining the special demurrer to its jurisdiction. In support of such contention, counsel for appellant Stucker cites as statutory authority therefor the present law of Kentucky relating to the matter of conducting inquests, and requiring that all requests for determining the sanity of persons in this state must be held in the circuit court, which was enacted by the General Assembly in its 1928 session, the pertinent sections of which, relating to the question here involved (sections 216aa-68, 216aa-69 and 216aa-70) read as follows: "See. 216aa-68. Inquest; Jurisdiction. — The circuit courts of the several counties of this state shall have exclusive jurisdiction of all inquests concerning the condition of the mind or mental faculty *Page 622 of persons. When no circuit court is in session in the county, inquests of insane persons may be held by a judge of a circuit court or by the presiding judge of the county court, but in no case shall an inquest upon an idiot or a person convicted of crime and confined in the penitentiary or reformatory, be held except in the circuit court, and if the inquest is upon a convict it shall only be held at a regular term of said court. "Sec. 216aa-69. Inquest, except Criminals; How Instituted. — Any reputable person being a resident of the county and having knowledge of a person in the county not serving a sentence in a penitentiary or reformatory under a criminal charge, who appears to be either feeble-minded, an epipleptic, insane person or an idiot, who is not in a state or private institution for the care of such person may file with the clerk of the circuit court a petition in writing for the trial and commitment of such person and setting forth facts verified by affidavit. It shall be sufficient if the affidavit is upon information and belief. "Sec. 216aa-70. Petition for Inquest; What it shall State. — The petition, verified as required in the preceding section, shall set forth the name and residence of the person concerning whom the petition is filed, the name, residence of the parent or parents, if known, and of the husband or wife, if any, and the name and residence of the person having custody, control and supervision of such person; or if no such person is known to the petitioner, then of some near relative or that such is unknown to the petitioner." By this act, it will be noted that the circuit court of the county in which any person lives, or happens to be, is vested with exclusive and complete jurisdiction to conduct proceedings and try the question of the sanity of such person, subject only to the exceptions (as to criminals) mentioned in the above statute, and, further, that the actual, rather than the technical, location of the person to be tried determines which court is vested with jurisdiction to hold the inquest. Further, it is contended by counsel for Brummette that, it appearing that as Bowman is still technically under the jurisdiction of the Mercer circuit court, if his appeal *Page 623 should be upheld by this court and a new trial directed, he would be answerable to that court under the requirement of section 216aa-69, supra, while counsel for Stucker argues that inasmuch as Bowman is not now actually or physically present in Mercer county, as required, it results that regardless of how violently insane he might become while remaining incarcerated in the reformatory at Frankfort for safe keeping, no "reputable person" or "citizen" of Mercer county might ever hear or know of such condition having developed, and for such reason, he contends that the Legislature, considering such possibilities, enacted the law (section 216aa-69, supra), so as to require the actual, rather than the technical, location of the person to be tried within the county to determine the question of what court should have jurisdiction to hold the inquest upon the mental condition of the convicted prisoner. On the other hand, counsel for Brummette, in his joint appeal from the decision of the Mercer circuit court in holding it to be without jurisdiction to adjudge the petitioned inquest upon Bowman's mental condition, under the circumstances here presented, takes the position that the quoted sections of the statute above cited and relied on by counsel for Stucker are not here applicable nor of controlling influence, as they apply to civil rather than to criminal cases in the holding of inquests; that the holding of inquests in the latter cases is regulated by the common law and Criminal Code of Practice. While the exact question thus presented upon these consolidated appeals for our determination may be considered as one of first impression in this court, we are yet not without precedents, much analogous in their facts to those of the instant case, in which are enunciated principles which we deem strongly in point and of controlling influence in determining the one question here presented for our review as to the propriety of the rulings of the lower trial courts in sustaining the special demurrers to the petitions as therein brought. This question, so here presented, is not one relating to or involving the right of Bowman to have a lunacy inquest to determine his responsibility for the commission of the charged offense by reason of any claim made that he was then insane, or that such was *Page 624 his condition of mental irresponsibility when later called for trial upon the charge. No such plea or defense was then made, entitling him to have his mental condition inquired into at such stages of his case under the applicable provisions of section 156 of the Criminal Code of Practice, nor was such claim of insanity interposed, or any showing later made thereof by the defendant after the jury's return of its verdict finding him guilty of murder, against the court's entering judgment and sentence thereon, as is provided for under section 287 of the Criminal Code of Practice, directing that, upon the court's concluding from such showing at such time made that there exist reasonable grounds for believing the defendant insane, it should then conduct an inquest to determine the question of his insanity. Such are the provisions of the Criminal Code of Practice as to the right of defendant, before judgment, to have an inquest held as to his mental condition, where charged with the commission of a criminal offense. Up to the time of his final sentence, that discretion as to the holding of inquests in criminal cases is vested in the trial judge. We think it is manifest, as argued by counsel for appellant Brummette, that these several sections of Kentucky Statutes (sections 216aa-68, 216aa-69 and 216aa-70) referred to have no application to the case of insanity of the defendant arising after the judgment of conviction has been pronounced against him. Therefore, the trial courts' refusal to grant the inquest here petitioned in each case for appellant, when under sentence of death, was proper, as the same, we are of the opinion, was not authorized under the facts and applicable statutory authority upon which the inquest in each petition was based and sought. However, statutory authority for such inquest, applying alone to cases in which infliction of capital punishment has been adjudged, and where the insanity arises after the pronouncement of the judgment, is conferred by section 1137-8, Kentucky Statutes, and section 296, Criminal Code of Practice, to which we will hereinafter refer. From our view of the rules relating to this subject, we find that the provisions of our Criminal Code of *Page 625 Practice as to the conducting of lunacy inquests in criminal cases correspond very closely to the provisions and rules of the common law in respect thereto, where practically the same rights are given to the defendant, to have the question of his mental responsibility inquired into, whether it related to the time of his charged commission of the offense or to the latter stages in his prosecution therefor, as shown supra. To the same effect is it so declared in the case of Barrett v. Commonwealth, 202 Ky. 153, 259 S.W.2d 25, 26, where one Frank Thomas had been convicted of murder in the Jefferson circuit court and his punishment fixed at death. Thereafter, in compliance with section 1137, Kentucky Statutes, he was conveyed to the State Penitentiary at Eddyville to await the execution of the sentence. A few days prior to the day fixed by the Governor for his execution, he filed a petition in the Lyons circuit court, in accordance with the provisions of section 272a, Kentucky Statutes, alleging that he was then insane and asking for an inquisition to determine that matter. Upon proceedings had thereunder, in accordance with the said statutory provisions, he was found to be a person of unsound mind and was by the judgment of the court ordered taken from the custody of the warden of the penitentiary at Eddyville and committed to the Western State Hospital at Hopkinsville. The court, in a strong and well-considered opinion, therein discussed the propriety of the original inquest granted, and there held (under the provisions of the then section 272a, Kentucky Statutes, providing much as does section 216aa-69, Kentucky Statutes, that inquests might be begun by any "reputable" person, either from knowledge or from information and belief, under the elaborate procedure mapped out by the provisions of said section of the statutes, and whereunder it became incumbent upon the court to hold the inquest) that "they were intended to apply only to civil rights of persons and property, and not to cover inquests growing out of criminal cases which are based on entirely different principles and which are regulated by the common law and the Criminal Code of Practice"; that such was the character and limitation of section 272a of the Statutes (chapter 54, Acts 1918) was clearly demonstrated by reference to the title of *Page 626 the act, showing that it was intended to provide "for the 'commitment, care, treatment, training, segregation and custody of feeble-minded, epileptic and insane persons. Our conclusion is that sections 216aa-68, 216aa-69, and 216aa-70 (chapter 16, Acts 1928), relied upon by appellant Stucker as statutory authority for giving defendant the right to the lunacy inquest here petitioned for, is subject to the same construction and limitation given by the court in the Barrett Case, supra, to the provisions of section 272a of the Statutes, in holding that such statutes were intended to apply only to civil and property rights and not to cover inquests growing out of criminal cases, for the like reasons cited in the Barrett opinion in respect to section 272a, in that it is indicated both by the title and language of these later sections (sections 216aa-68, 216aa-69, 216aa-70), which replace section 272a of the acts of 1918 (chapter 54), that they were intended to relate to cases of "inquest, except criminal," and in their providing that "any reputable person being a resident of the county and having knowledge of a person in the county not serving a sentence in a penitentiary or reformatory under a criminal charge * * * may file * * * a petition," etc., and in further providing, section 216aa-68, that "in no case shall an inquest upon an idiot or a person convicted of crime and confined in the penitentiary or reformatory, be held except in the circuit court, and if the inquest is upon a convict it shall only be held at a regular term of said court." Where an inquest is asked as to a defendant against whom judgment has been pronounced and sentence entered, the petition therefor must be presented in harmony with the provisions of sections 294 to 296 of the Criminal Code of Practice and section 1137-8 of the statutes, amendatory of said Code sections, such statutory authority applying alone to cases in which the infliction of capital punishment has been adjudged, as here, and where the insanity arises after pronouncement of the judgment. Section 294, Criminal Code of Practice, directs the sheriff to execute the death penalty, section 295 authorizes him to suspend the sentence under the conditions of section 296, providing that after the death sentence, if the sheriff is satisfied there are reasonable grounds for believing that the defendant is *Page 627 insane or pregnant, he may summon a jury of twelve persons, etc., who shall be sworn by the sheriff well and truly to inquire into the insanity or pregnancy of the defendant, and a true inquisition return; they shall examine the defendant and hear any evidence that may be presented; and by a written inquisition, signed by each of them, find as to the insanity or pregnancy. These sections have been amended by the Acts of 1910 (chapter 38) and further amended by the Acts of March, 1920 (chapter 163), now sections 1137-1 to 1137-10, Kentucky Statutes. These require the death penalty to be executed by the warden of the penitentiary within its walls, except in convictions for the crime of rape, which is still to be executed by the sheriff of the county in which the crime is committed: As stated in the Barrett Case, supra: "From these provisions it would seem that the sheriff is still authorized to hold inquests and suspend execution in cases of insanity developing after the death sentence in cases of rape, and in other cases until the removal of the convict to the penitentiary. Garman v. Com., 183 Ky. 455, 209 S.W. 528. "As to other capital cases in which the sentence is executed by the warden of the penitentiary, no other mention is made of the manner in which the insanity or pregnancy of the condemned is to be ascertained nor as to the officer authorized to suspend the judgment of execution in the event the condemned is found to be insane; hence there is some question as to the proper procedure." As to this, the opinion continues: "We have seen that it has always been the policy of the law in such cases for the person charged with the administration of the law to exercise discretion as to holding inquests in criminal cases. Up to the time of final sentence that discretion is vested in the trial judge. After sentence the policy of our laws seems to be to vest it in the executioner — formerly the sheriff in all cases, now the sheriff in some, and the warden of the penitentiary in others. By reason and analogy, we can see no reason why, after the removal of the convict to the penitentiary, such an inquest may not *Page 628 be held by the warden of the penitentiary if he is satisfied there are reasonable grounds to believe the condemned insane or pregnant. "In this respect he simply takes the place of the sheriff and performs the same duties except as to the place and manner of execution. He has custody of the condemned and is informed as to his mental condition." We find nowhere in the statutes or Code any provision that authorizes or allows an inquest upon the initiative of a supposed lunatic or any one for him after judgment and sentence of the condemned or upon the petition of any reputable citizen other than the named officers or that one of them having custody of him. In the case of Spann v. State, 47 Ga. 549, 551, a somewhat similar case, an inquest was sought by the sheriff having in custody the defendant, who had been convicted of murder and sentenced to be hanged. In respect to the granting of the inquest there allowed, the Supreme Court said: "The whole proceeding is merely a stay of execution, and is based rather upon the public will, and a sense of propriety, than on any right in the prisoner. * * * It is rather a perversion of terms to call an inquisition of this kind the act of a Court, and to exercise in reference to it the writ of certiorari. The whole proceeding is rather an inquiry based on public propriety and decency, than a matter of right." Also as to this, see Laros v. Commonwealth, 84 Pa. 200, in which it was said: "The plea [of insanity] at this stage is only an appeal to the humanity of the court to postpone the punishment until a recovery takes place, or as a merciful dispensation. The rights of the prisoner as an offender on trial for an offence are not involved. He has had the benefit of a jury trial, and it is now the court only which must be satisfied on the score of humanity." Also, in Davidson v. Commonwealth, 174 Ky. 789, 192 S.W. 846, it is held, as indicated by syllabus 2 thereof, that "There is, in this jurisdiction, no statutory authority *Page 629 for the granting of such an inquest after the pronouncement of judgment and sentence upon the defendant, following his conviction by verdict of the jury, except in cases of capital punishment or pregnancy claimed to exist at the time fixed by the judgment for its execution; but as it ought to be the policy of the state to suspend the execution of the judgments of its criminal courts against persons who, after conviction of crime, may become insane, during the existence of such insanity, notwithstanding the absence of statutory authority, upon the broad humanitarian principle that one who is incapacitated by insanity from understanding the purpose of the law in subjecting him to punishment ought to be exempted therefrom during the continuance of the insanity, a circuit court to which application is made for such an inquest may, by virtue of the inherent power possessed by it, grant the relief, if by proper showing of fact, convinced of the necessity therefor. But in such case the granting or refusal of such inquest is discretionary with the court; and if the defendant's application or motion therefor is unaccompanied by affidavit or other evidence in his behalf strongly tending to show his insanity at the time, the refusal of the court to grant the inquest will not be treated as a final order or reviewed by the Court of Appeals," and, further, "To permit one convicted of crime to arrest the execution of a judgment imposed on him by the court by demanding as a matter of legal right, an inquiry into his mental condition, would be tantamount to granting him the privilege of thwarting the administration of criminal justice for an indefinite time. All he would have to do would be to continue to move for an inquest." To like effect, see, also, Barrett v. Commonwealth, supra, and the numerous authorities therein cited. The soundness of the reasoning employed in these quoted cases, both of our own and foreign jurisdictions, in arriving at the conclusion expressed in those opinions, demonstrates the correctness of the rule therein announced and influences us to conclude that the rule so announced therein is equally applicable to the determination of the instant case. Therefore, so influenced by the principles therein announced, we are of *Page 630 the opinion that the rulings of the lower courts in sustaining the special demurrers to the petitions and the judgments dismissing them were in accord with the approved principles and reasons hereinabove discussed, and as such were proper and should be affirmed. The judgment in each case, dismissing the petition for inquest for lack of jurisdiction, is therefore affirmed. Whole court sitting.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3435679/

The plaintiff, a resident and citizen of the State of Iowa, and an honorably discharged soldier of the war with the Imperial German Government, brought this action for a writ of certiorari under Code section 1163, alleging that he occupied the position of yardman and relief fireman, under the supervision and control of the custodian, of the Capitol grounds, since on or about the 16th day of May, 1933, and that he was employed by the Executive Council of the state of Iowa; that without cause he was discharged from this position on November 16, 1934; that no hearing upon due notice upon stated charges was had, as required by section 1163 of the Code of 1931, altho the executive council had been notified in writing of the status of the plaintiff herein, and his rights under the Soldiers' Preference Act, chapter 60 of the Code of 1931; that he is *Page 1127 the head of a family, and is entitled to the provisions of such act. He prayed that a writ of certiorari issue out of the district court in and for Polk county, commanding defendants herein to certify fully to said court a transcript of the record and proceedings had with respect to the position of yardman and relief fireman, together with all the facts relating to said matter; that said proceedings be annulled, set aside and held for naught, and he have judgment for his costs herein, and for the salary appertaining thereto; and that upon final hearing the defendants be ordered to reinstate the plaintiff. Defendants in this case are the Executive Council of the State of Iowa and H.B. Dunlap, who, it was alleged in the petition, is the duly appointed, acting and qualified custodian of the Capitol grounds and building of the State of Iowa. In the petition for the writ the plaintiff does not name the person or department that discharged him. The district court granted the relief, and all of the defendants, with the exception of H.B. Dunlap, filed a return to the writ, in which they stated that the Executive Council did not discharge the plaintiff and took no action with reference to his discharge; that no motion or resolution was made or passed by the Executive Council with reference to same; that they had in their possession no records relating to the said discharge, except payroll records that appear in the office of H.B. Dunlap as custodian of the Capitol grounds, and in the office of the Honorable Leo J. Wegman, Treasurer of the State of Iowa; that said payroll records make no reference to the discharge of said plaintiff; that no motion or resolution was made or passed by the Executive Council with reference to the discharge of the said Johnson, no records were made by said Executive Council and no proceedings had with reference to said matter. Thereafter an amendment was filed to the petition, by the plaintiff, in which he set up that D.B. Johnston was the acting custodian of the Capitol grounds of the State of Iowa; that the office of custodian was vacant. H.B. Dunlap and D.B. Johnston filed a separate return to the writ, in which H.B. Dunlap alleged that his term of office as custodian ended on January 2, 1935, and that he had no records other than those referred to in the return theretofore filed by the other defendants herein. Thereafter H.B. Dunlap filed an answer, in which he admitted he had discharged the plaintiff, *Page 1128 but expressly alleged that he had a good and sufficient reason and ground therefor. A trial was had, and the district court annulled the writ. Plaintiff has appealed. The appellant in this case bases his right upon the fact that he was hired by the Executive Council and discharged by the Executive Council. He does not claim that anyone else discharged him, nor does he argue that he has any rights because he was discharged by anyone other than the Executive Council. There isn't one word of evidence in this record to sustain the charge made by the appellant that he was discharged by the Executive Council. Having failed to prove that it was the Executive Council that discharged him, the lower court was right in annulling the writ and dismissing appellant's petition, and it necessarily follows that this case must be, and it is hereby, affirmed. — Affirmed. RICHARDS, C.J., and ANDERSON, PARSONS, and HAMILTON, JJ., concur.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3435681/

The plaintiff obtained a decree of divorce from her husband, defendant herein, in September, 1929. She received no alimony; nor did she ask for any. There were four boys to be provided for, ranging in age from 12 to 17 years. Because she was homeless and without property, the wife consented that the custody of the boys be awarded to the father, who had an occupation in which he earned $45 per week. The father found himself unable to make a home for his boys and never did provide a home. In lieu thereof he placed them in a boarding house and paid their board. The environment was bad, and some of them became involved in delinquency, which brought the public authorities into conference. The result was that the father agreed with the mother that she might take the custody of the boys and that he would pay for the expense thereof to the amount of $3.50 per week for the two younger boys and $4 per week for the older ones. Under this arrangement the mother assumed the custody of her boys and has mothered them ever since. This occurred in November, 1930. In the meantime the mother remarried and came thereby into a comfortable home wherein the boys have lived with her happily. The foregoing should be qualified with the statement that the two older boys have become self-supporting and nothing is claimed in their behalf in this application. The two younger boys are still with their mother in her home. Each of them testified that he wanted to maintain his home with his mother in preference to any other arrangement. The stepfather is considerate and accords to the mother the full liberty to keep her boys in the home. The father paid the amounts stipulated for some time and until shortly prior to the filing of this application. He had become in arrears to the amount of $125. He pleads poverty in that he is earning now only $20 a week, though engaged in the same employment as before. Rather than to perform further his contractual obligation, he has suddenly demanded of the plaintiff the custody of the boys. He has become a resident at Carroll, Iowa. He testified: "Two or three weeks ago I came down here after the boys, and I then told my wife that I wouldn't pay their board any longer ifshe wouldn't let me take the boys back with me." He testified also: "If I take the boys to Carroll I can take care of them. I have always been willing to take care of them and when *Page 424 I defaulted it was because I didn't have any money to pay with. If I take them up there maybe I can get jobs for them." It is quite evident from the record that the defendant is more anxious to save expense that he is to give proper care to his boys. During the period prior to November, 1930, he did not live with them. His concern now, if he should obtain their custody, is to make them earn their own living. The record indicates inferentially that the purpose of his demand for the custody was one of duress upon the mother to induce her to waive payments from him. The district court awarded custody to the mother. Without any doubt it is to the interest of the minors that that order should stand. To say that there has been no change in the circumstances of the case is not a proper interpretation of the record. The parties themselves by mutual agreement worked a very material change in the circumstances by their contract of November, 1930. It would have been entirely proper in the first instance if the court had formally entered an order conformable to the mutual agreement. The contract itself was personally binding upon the defendant without any court order. By his contract he had transferred the burden of custody from himself to the impoverished mother. As a consideration for such transfer, he agreed to pay the price. The sum total of the burden imposed upon him by the court is less than his undertaking in November, 1930. The court imposed upon him no obligation to pay anything for the two older boys. It ordered him to pay $15 a month for each of the two younger boys. The order of the district court is affirmed. ALBERT, C.J., and KINDIG, CLAUSSEN, and DONEGAN, JJ., concur.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3435680/

The defendants were the owners of a stock of groceries and fixtures, located in the Sioux Apartments, at Nineteenth and Grand View Boulevard, Sioux City. On October 1, 1929, a written contract was entered into between the defendants and the plaintiff for the sale of said stock and fixtures to the plaintiff. By the terms of said written contract, the plaintiff agreed to buy, and the defendants agreed to sell, all the fixtures, good will, trucks, and all other equipment of every kind and description to the plaintiff for the sum of $2,000, and all of the merchandise at market price, to be determined by an appraisement of two parties, one selected by the plaintiff, and the other by the defendants, said inventory or appraisement to be made on October 7, 1929, and settlement to be made as soon as the appraisement was completed. The defendants agreed to accept $3,500 in cash of the purchase price, and to accept the note of the plaintiff, indorsed by a party or parties acceptable to the defendants, for the remainder. The estimated value of the merchandise was the sum of $3,000. The sum of $500 (the amount herein involved) of the purchase price was paid on the date of the execution of the contract. It becomes important to first note what are the issues in the case. The plaintiff, in his substituted petition, alleges the execution of the aforesaid written contract, and further alleges, in substance: That, prior to the execution of said contract, the defendants represented and warranted to him that 90 per cent of the sales made in said store were for cash, and 10 per cent for credit, and that $2,000 was all the capital that was required to run this grocery store successfully and at a profit; that said representations and warranties were false, were known by the defendants to be false, and were made for the purpose of inducing the plaintiff to enter into the contract; that he relied upon the same, believing them to be true, and, so relying and believing, entered into said contract; that he had disclosed to the defendants that the entire amount of his capital was $4,000; that he later discovered that more than 50 per cent of the business done by these defendants in said store was for credit, and *Page 1065 at once rescinded said contract, and demanded the return of the $500, which the defendants have refused to pay. While the appellant in his petition states that the defendants "represented and warranted," etc., yet it is apparent that plaintiff's cause of action is not, and could not be, founded upon breach of warranty. The written contract 1. EVIDENCE: contains no warranty, and it is a well parol as recognized rule that, where the written contract affecting of sale contains no warranty, or expresses the writings: warranty that is given by the vendor, parol parol evidence is inadmissible to prove the existence warranty: of a warranty in the former case or to extend it when in the latter by inference or implication. See incompetent. Electric Storage Battery Co. v. Waterloo, C.F. N.R. Co., 138 Iowa 369. Neither do the statements contained in the petition amount to a warranty as to the condition of the merchandise bought. Therefore, the cause of action stated in plaintiff's petition must be construed as based solely upon fraudulent representations. We now turn to the averments of the answer. It admits the execution of the contract, alleges nonperformance by the plaintiff, and denies the remaining allegations of plaintiff's petition. Hence, the issues are clearly and distinctly stated. The plaintiff alleges that he was induced to enter into the contract by reason of fraudulent representations made by the defendants. This is denied by the averments of defendants' answer. The plaintiff alleges that, upon discovery of the fraud, he at once (within a reasonable time) rescinded the contract and demanded the repayment of the $500. This is denied by the allegations of defendants' answer. Under the issues as made by the pleadings, if the plaintiff has established any fraudulent representation, as alleged therein, which was the inducement to his entering into the contract, and has established rescission within a reasonable time, then he is entitled to a return of the $500. At the close of plaintiff's evidence, the defendants moved for a directed verdict, and the motion was overruled, the court saying, "I think it is very questionable whether your rescission *Page 1066 2. TRIAL: is timely." At the close of all the evidence, taking case the motion for a directed verdict being renewed, from jury: the same was sustained by the court. In passing motion for upon a motion for a directed verdict, the court directed cannot determine as to the weight of the verdict. evidence, and the party against whom the motion is made is entitled to have taken as established every fact which his evidence fairly tends to prove. Hartman v. Chicago G.W.R.Co., 132 Iowa 582; Degelau v. Wight Landon, 114 Iowa 52. This rule is universally recognized. We have read the record with care, and it appears from the plaintiff's testimony that he first saw this store on the 30th day of September, 1929; that he was desirous of purchasing a stock of groceries; that he interviewed the 3. SALES: defendants with that thought in mind; that he rescission: told them he had approximately $4,000; and that reasonable one of the defendants said, "You will be able to time for run it, — it is practically all cash," that the rescission: business was practically a cash business, that jury they did over $91,000 of business last year, question. that it was practically all cash business, and that the book accounts amounted to something like $1,500 or $2,000 (the plaintiff did not purchase the book accounts). If plaintiff's testimony, as shown by the record, be true, there are shown the elements necessary to constitute the representation "that 90 per cent of the sales made in said store were for cash and 10 per cent for credit," a fraudulent representation, within the meaning of the law. The plaintiff testifies that, the next day after the contract was signed, he was in the store most of the day, and that, on that day, the cash business amounted to $38, and credit business to $183; that he was there the following day, when the cash business amounted to $25 and the credit business to $100; that at that time he saw the book (which showed for several years the daily sales, the amount of cash and the amount of credit, the amount collected, and the amount of expenditures), and this book revealed quite an extensive credit business; that, during the month of September alone, the firm did a cash business of $700 and a credit business of $6,000. While the appellant was in the store on these two days, the store was in the possession of the defendants. The appellant testified in substance, that he saw that he could not conduct the business *Page 1067 with his limited capital of $4,000, and that he told one of the defendants that he would have to raise some more cash, and that said defendant told him "that was a good idea." The appellant testified that he liked the store, and that he tried to raise more money, even making the attempt to obtain the same from his brother in New York City. The inventory was made on the evening of October 7th, as specified in the contract. The total amount of the invoice of the stock of goods was $2,929.26, but this had not been computed at the time of the rescission, on the morning of October 8th. On the evening of October 7th, after the invoice was taken, the key of the store was delivered by the defendants to the appellant. Early the next morning, the rescission of the contract was made by the appellant, he returning the key to one of the defendants' firm, at the home of said defendant. It will be observed that the appellant has never been in the physical possession of the store; that he had the key, after the completion of the invoice the night of October 7, 1929, until the next morning, when it was returned to one of the defendants and rescission made. According to the appellant's testimony, he was making an effort to raise more money, after he discovered the extensive credit business done by the defendants, as to which he had been fraudulently misled; but since he was not able to raise the same, when his brother in New York City disappointed him, at the last moment, there was nothing for him to do but rescind. It will be observed that he ascertained the falsity of the aforesaid representation on the 2d or 3d of October, and his rescission was made on the early morning of October 8th. It is true that the burden was upon him to establish rescission within a reasonable time after ascertaining the falsity of the representation previously relied upon by him. What is a reasonable time must be considered with reference to all the circumstances. A lapse of time which would be unreasonable in one case may be entirely reasonable in another. 13 Corpus Juris 617; 35 Cyc. 151. Whether the right to rescind was exercised within a reasonable time is usually a question for the jury. 35 Cyc. 152; Brennan Cohen v.Nolan Laundry Co., 209 Iowa 922; National Bank of Decorah v.Robison, 199 Iowa 1044; Chariton P. H. Co. v. Lester, 202 Iowa 475. It will be observed that the rescission was made within five or six days after the discovery of the falsity of the representation *Page 1068 relied upon, and, under the circumstances as revealed by the record, we cannot hold, as a matter of law, that the rescission was not made within a reasonable time. We cannot try the case denovo. Under the issues as drawn, all the plaintiff needed to prove, in order to recover, was fraud as alleged, and that rescission was made within a reasonable time. These are the matters which are asserted by the plaintiff and denied by the defendants. These questions should have been left to the jury. It is true that an election by a defrauded party, after discovery of the fraud, to affirm the contract is final, and that an unequivocal act by the one defrauded, after discovery of the fraud which induced the sale, by which he elects 4. PLEADING: to treat the sale as valid, is sufficient to answer: preclude him from subsequently rescinding the rescission sale on the ground of fraud. See Seeley v. for fraud: Seeley-Howe-Le Van Co., 130 Iowa 626; 13 Corpus general Juris 624, 625, 626. The appellee relies upon denial: this doctrine, but this question is not raised effect. by defendants' general denial of the averments of plaintiff's petition. It will be observed, as suggested by the appellant in argument, that there is no affirmative allegation in defendants' answer, seeking to avoid the matters averred and relied upon by the plaintiff in his petition. The court cannot determine the case, except on the issues made by the pleadings. Under the record, these issues should have been left to the jury. The court was in error in sustaining defendants' motion for a directed verdict, and the judgment of the trial court is hereby reversed, and the cause remanded for a new trial. — Reversed andremanded. FAVILLE, C.J., and STEVENS, De GRAFF, and ALBERT, JJ., concur.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/127884/

537 U.S. 1245 D'SAv.UNITED STATES. No. 02-8894. Supreme Court of United States. March 3, 2003. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT. 2 C. A. 11th Cir. Certiorari denied. Reported below: 54 Fed. Appx. 490.

01-03-2023

04-28-2010

https://www.courtlistener.com/api/rest/v3/opinions/2963345/

Court of Appeals of the State of Georgia ATLANTA, September 18, 2015 The Court of Appeals hereby passes the following order A16D0014. DANIEL OFOR v. AMBREE DANIELS. Upon consideration of the Application for Discretionary Appeal, it is ordered that it be hereby DENIED. LC NUMBERS: 2015CV2894 Court of Appeals of the State of Georgia Clerk's Office, Atlanta, September 18, 2015. I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written. , Clerk.

01-03-2023

09-21-2015

https://www.courtlistener.com/api/rest/v3/opinions/3062392/

IN THE COURT OF APPEALS OF IOWA No. 15-1338 Filed October 14, 2015 IN THE INTEREST OF J.T., I.T., AND M.T., Minor Children, S.T., Mother, Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Polk County, Colin J. Witt, District Associate Judge. A mother appeals the termination of her parental rights. REVERSED AND REMANDED. Michael Horn of Kuntz, Laughlin & Horn, Des Moines, for appellant mother. Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, John P. Sarcone, County Attorney, and Annie Fox Reynolds, Assistant County Attorney, for appellee State. Daniel Rothman of McEnroe, Gotsdiner, Brewer, Steinbach & Rothman, P.C., West Des Moines, for appellee father. Christopher Kemp of Kemp & Sease, Des Moines, attorney and guardian ad litem for minor children. Considered by Doyle, P.J., and Mullins and Bower, JJ. 2 DOYLE, Presiding Judge. A mother appeals the termination of her parental rights to her children, J.T., I.T., and M.T.1 She contends: (1) the State failed to prove the grounds for termination; and (2) the juvenile court should have declined to terminate her rights because (a) the children are in legal custody of a relative, (b) the ten-year- old child expressed a desire to be returned to his parents’ care, and (c) the children are closely bonded with their mother. Upon our de novo review, we conclude termination was not warranted. I. Background Facts and Proceedings. Following a July 23, 2015 hearing, the juvenile court entered an order terminating the mother’s parental rights pursuant to Iowa Code section 232.116(1)(f) (2015) as to the two older children and (h) as to the youngest child. Iowa Code section 232.116(1) paragraphs (f) and (h) are essentially the same but for the applicable age of the child and the amount of time the child has been out of the home. See Iowa Code § 232.116(1)(f) (“The child is four years of age or older” and “has been removed . . . for at least twelve of the last eighteen months”), (h) (“The child is three years of age or younger” and “has been removed . . . for at least six months of the last twelve months”). Both paragraphs (f) and (h) require the State to prove, by clear and convincing evidence, “the child cannot be returned to the custody of the child’s parents . . . at the present time.” See id. § 232.116(1)(f)(4), (h)(4). It is this element that the mother challenges. 1 The father’s parental rights to the children were also terminated and are not at issue here, as he has not appealed 3 II. Scope and Standards of Review. Our review of termination decisions is de novo. In re A.M., 843 N.W.2d 100, 110 (Iowa 2014). We give weight to the juvenile court’s findings, especially assessing witness credibility, although we are not bound by them. In re D.W., 791 N.W.2d 703, 706 (Iowa 2010). An order terminating parental rights will be upheld if there is clear and convincing evidence of grounds for termination under section 232.116(1). See id. Evidence is “clear and convincing” when there are no serious or substantial doubts as to the correctness of the conclusions of law drawn from the evidence. See id. In determining whether parental rights should be terminated under chapter 232, the juvenile court “follows a three-step analysis.” Id. Step one requires the court to “determine if a ground for termination under section 232.116(1) has been established” by the State. Id. If the court finds grounds for termination, the court moves to the second step of the analysis: deciding if the grounds for termination should result in a termination of parental rights under the best-interest framework set out in section 232.116(2). Id. at 706-07. Even if the court finds “the statutory best-interest framework supports termination of parental rights,” the court must proceed to the third and final step: considering “if any statutory exceptions set out in section 232.116(3) should serve to preclude termination of parental rights.” Id. at 707. III. Discussion. The State notes this is a difficult case. We agree. The children were removed from parental custody in April 2014 due to allegations of drug use by the parents in the home with the children and ongoing domestic abuse. The 4 children were placed with their paternal aunt. The father’s parental rights were terminated primarily because he did not seek adequate help for his substance abuse and anger issues leading to repeated incidents of domestic abuse against the mother. The mother took advantage of the services offered to her but continued to maintain her relationship with the father knowing that he was not participating in the services he needed to address his substance abuse and violence issues. By the time of the termination hearing, the only real concern was the mother’s relationship with the father. A family safety, risk, and permanency provider testified “there was not really any parenting concerns” with the mother, but she was concerned about the mother’s lasting relationship with the father. Asked about her concerns if the father were not around, in Antarctica for example, the provider answered: If he wasn’t present, there wouldn’t be any concerns. [The mother] addressed all her substance abuse concerns right from the start and knocked out all of her treatment right away. I don’t think she missed any appointments in treatment, and hasn’t really missed any therapy. She completed her parenting class. She’s been on top of everything. It’s just the relationship with [the father] that’s been the concern. The DHS social worker testified similarly. In recommending termination of the mother’s parental rights, the worker testified: I support termination with regards to her, too. I don’t believe these last 14, 15 months that she really has truly gained insight into her situation with [the father] and how their history of domestic violence and drug usage, how that really, truly impacts her children, or I feel like she would have addressed that earlier on in this case. She saw no obstacle to the mother getting her children back, but for her relationship with the father. She testified that “if it was provable today that [the father] was out of the picture, [she] would have no additional reservations about 5 the safety of the kids with [the mother,” agreeing the mother had “addressed her substance abuse . . . . My concern is just her relationships.” The mother testified the court’s April 16, 2015 permanency order directing the county attorney to institute termination of parental rights proceedings was a “wake-up call” for her. That was the first time it was obvious to her that she had to choose between the father and her children. She testified the father moved out of her home April 16, 2015, and they had not lived together since. Besides seeing the father in passing at visitations with the children, the mother testified her only contact with the father after April 16, 2015, was to give him a total of three rides to the children’s birthday parties and baseball games. She said she had no other contact with him because she did not “want anything to interfere with [her] chances of being not terminated with [her] children. It’s not worth the risk.” She said she intended to divorce the father and explained why she had not yet done so. The juvenile court concluded: In [the mother’s] case, the unfortunate source of the adjudicatory harm to her sons which fulfils the final element of these termination grounds proceeds directly from their father, rather than her. [The mother] has done everything anyone has asked of her in regards to treatment and direct care of her children; by all reports she is strongly bonded to the children, cares for them deeply, and earnestly strives to satisfy their physical, mental, and emotional needs—further, these attempts are more than minimally adequate. This is not to say [or] imply that [the father] alone bears the total weight of the separation from and the harm to the children: both parents have continuously and actively participated in a cycle of domestic violence, drug use, and child neglect. The major difference is that when forcibly separated by government action, [the mother] becomes a capable parent—[the father] does not. However, this separation is just that: forced. Together, [the mother and father] have exposed their children to violence, neglect, and devastatingly dangerous drug abuse—each share in a 6 necessary portion of failure leading to the harms placed upon [the children]. [The mother] has been informed, repeatedly and to the point that she has become acrimonious regarding it, that her relationship with a man who is unwilling to participate in services is the “main reason” that reunification could not take place. Regardless of whether the conversations turned on the onus of [the father’s] danger to the children, his lack of participation in services, or his re- emerged drug use and criminal involvement, [the mother] was on notice for at least a year that her relationship with [the father] was the core deficit—perhaps the only remaining direct deficit—in her ability to parent. It is entirely possible (though the court does not rest its conclusion on the issue) that [the mother and father] remain in contact even now at this late date, long after the State has activated the machinery of irrevocable separation. Regardless of if this is so, the extensive and invariant history of disastrous reunion between the two is sufficient enough to be reliably predictive: an inference case law commands this court to make. This clear and convincing inference is strengthened by the closeness of residence between [the mother and father’s] family, the suspicious and collusive questioning of DHS professionals regarding how to demonstrate separation, [the father’s] sudden residency with [the mother] in October-November 2014, and the refusal of the mother to sustain a civil no contact order, file for separation, or file for divorce with [the father]. Perhaps the most painful evidence is [the mother’s] letter to the court which is part of exhibit record in these cases: It is obvious from reading that [the mother] loves her children dearly, and blames herself, stating that she “can never forgive herself” for this separation. Absent from this letter, however, is any awareness of the critical role that her relationship with [the father] has played in her continued separation from her children. This honest and heartfelt statement to the court contains, by notable absence, the fullest proof of the problem in this case. Unfortunately, [the mother] has failed to adequately protect her children from their father. The court finds it is fatal to her capacity to parent and unlikely to change. It should be noted that the past behavior here is not the drug use, but the unshakable relationship with [the father]. Should it be only the drug use, the life changes of [the mother] in this case would buck such reliance on history. (Internal citation omitted.) To be sure, we share the juvenile court’s concerns about the history of the relationship between the mother and the father. Certainly, a court can consider 7 past performance to gain insight into a parent’s future parenting, In re O’Neal, 303 N.W.2d 414, 422-23 (Iowa 1981), but have we become so cynical that we do not believe a person can turn over a new leaf? We think not. Past performance is not an absolute predictor of the future; it only may be indicative of what the future holds. See In re R.M., 431 N.W.2d 196, 199 (Iowa Ct. App. 1988). Some three months elapsed between the April 16 permanency hearing and the July 23 termination hearing. The mother testified she terminated her relationship with the father after her “wake-up call” at the April permanency hearing. In a July 7, 2015 letter to the DHS social worker, the mother’s therapist stated: Since [the mother’s] last court date, she reported cutting all ties with [the father]. I felt like she was really honest about her feelings. She has a lot of frustration towards [the father] and really not wanting anything to do with him because his focus isn’t their children. I believe after court in April was a big wake-up call and it really hit [the mother]. We find no clear and convincing evidence in the record that the mother and father clandestinely resumed their relationship after April 16, 2015. The fact that the mother gave the father three rides to family events is not enough. The DHS worker testified she received a text message on April 29, 2015, from the mother’s sister that somebody reported the father was back at the mother’s home. The sister had not personally seen the father there; somebody told her. That “somebody” was not identified. The DHS worker did not confront the mother with this information. This “evidence” is far from clear and convincing. And to the juvenile court’s credit, it was not considered in reaching its decision. There is 8 nothing more in the record other than suspicion, innuendo, and speculation by the State’s witnesses. This is not clear and convincing evidence. The juvenile court’s termination was founded on the mother’s relationship with the father: “the core deficit—perhaps the only remaining direct deficit—in her ability to parent.” The court concluded “the extensive and invariant history” of the relationship between the two was “sufficient enough to be reliably predictive” that the two would continue a relationship in the future, thereby exposing the children to an adjudicatory harm for which they were originally removed from the home. We disagree. There is no clear and convincing evidence in the record that the mother and father continued their relationship after the April permanency hearing. Prior to that time, the mother’s relationship with the father appeared unshakable. But we must take into account the mother’s permanency hearing epiphany, when it finally became obvious to her that she had to choose between her children or the father. We can speculate that she did and will continue her relationship with the father, based upon their history, the closeness between the mother’s residence and that of the father’s family, and the fact that she had not yet filed for divorce from the father. Speculation is not enough. We are not so naïve to think there is no possibility the mother and father have continued some clandestine relationship, but it is the State’s duty to prove by clear and convincing evidence that a relationship did continue and that because of the nature of the relationship, the children would be exposed to adjudicatory harm by the father if the children were returned to the mother’s home. The State has not met its burden in this case. 9 For this reason, we reverse the juvenile court’s order terminating the mother’s parental rights to her children. We remand the case to the juvenile court for further proceedings consistent with this opinion. We need not address the mother’s other arguments raised on appeal, nor do we retain jurisdiction. REVERSED AND REMANDED.

01-03-2023

10-14-2015

https://www.courtlistener.com/api/rest/v3/opinions/3062395/

IN THE COURT OF APPEALS OF IOWA No. 15-1374 Filed October 14, 2015 IN THE INTEREST OF D.E. and D.B., Minor Children, M.E., Mother, Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Pottawattamie County, Craig M. Dreismeier, District Associate Judge. A mother appeals the termination of her parental rights. AFFIRMED. Roberta J. Megel of Public Defender Office, Council Bluffs, for appellant. Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd and Kathryn K. Lang, Assistant Attorneys General, Matthew Wilber, County Attorney, and Eric Strovers, Assistant County Attorney, for appellee. Norman L. Springer Jr. of McGinn, McGinn, Springer & Noethe, Council Bluffs, for father. Te’Ya T. O’Bannon of O’Bannon Law, P.C., Council Bluffs, attorney and guardian ad litem for minor child. Considered by Doyle, P.J., and Mullins and Bower, JJ. 2 BOWER, Judge. A mother1 appeals the termination of her parental rights to two children, D.E. and D.B., claiming clear and convincing evidence does not support the termination of her parental rights. We affirm the juvenile court’s order. We review de novo, proceedings terminating parental rights. See In re A.M., 843 N.W.2d 100, 110 (Iowa 2014). The three-step statutory framework governing the termination of parental rights is well established and need not be repeated herein. See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010). The juvenile court issued a thorough and well-reasoned order terminating the mother’s parental rights, and we adopt the findings of fact and conclusions of law in the juvenile court’s order as our own. The juvenile court terminated the mother’s parental rights pursuant to Iowa Code sections 232.116(1)(e), (f), (i), and (l) (2013). When the juvenile court terminates parental rights on more than one statutory ground, we may affirm the order on any ground we find supported by the record. In re D.W., 791 N.W.2d 703, 707 (Iowa 2010). To terminate the mother’s parental rights pursuant to Iowa Code section 232.116(1)(f), the State must prove: (1) the child is four years of age or older; (2) the child has been adjudicated a child in need of assistance (CINA); (3) the child has been removed from the physical custody of the mother for at least twelve of the last eighteen months, or for the last twelve consecutive months; and (4) there is clear and convincing evidence that at the present time 1 The children’s respective fathers’ parental rights were terminated and they do not appeal. 3 the child cannot be returned to the custody of the mother as provided in section 232.102. In finding termination was proper under 232.116(1)(f), the juvenile court reasoned: The Court finds that both kids are over four years of age. The children have been removed from the care of their parents for at least twelve of the last eighteen months and they have been adjudicated as children in need of assistance. Services have been offered to correct the problems associated with their removal however even with the services offered, the children are unable to be returned to any parent’s care now or in the foreseeable future. This case started off as a result of [the mother]’s substance abuse use. This has been an issue of hers for a long period of time which resulted in prior contacts with juvenile court and criminal court. This problem has not been resolved. Quickly after becoming involved with the department in December 2013, her mental health issues arose which still remain unresolved. [The mother] still has anxiety issues and blacks out without the children being in her care and even while residing in a smaller community. Some of her behaviors while exercising visitation certainly emphasize her need for ongoing treatment. The children have issues which need attention as well and she has failed to engage in those services. Her children need a strong parental presence and they have lacked this with their mother. [The mother] has a difficult time trying to address her own issues let alone those of her children. Although it appears she has housing, given her history, it seems just a matter of time before this ends. She testified that her current residence has been her home off and on for the past seven years. That statement alone is telling of her instability given the number of times she moved throughout the CINA case. Efforts have been made to address all of these issues however this Court agrees with Ms. Shepley in her conclusions that the children can’t be returned to her care at this time. We agree with the juvenile court’s reasoning and find clear and convincing evidence supports termination of the mother’s parental rights to the two children pursuant to Iowa Code section 232.116(1)(f). 4 Even if a statutory ground for termination is met, a decision to terminate must still be in the best interests of a child after a review of section 232.116(2). P.L., 778 N.W.2d at 37. In determining the best interests of the child, we give primary consideration to “the child’s safety, to the best placement for furthering the long-term nurturing and growth of the child, and to the physical, mental, and emotional conditions and needs of the child.” See Iowa Code § 232.116(2). Encouragingly, we note the children have been progressing in foster care. We echo the juvenile court’s sentiment that reunification of the children with the mother would blunt the children’s progress. The children need permanency now, and can no longer wait for their mother to parent them at some point in the future. See In re D.S., 806 N.W.2d 458, 474 (Iowa Ct. App. 2011). We affirm the juvenile court’s order terminating the mother’s parental rights without further opinion. See Iowa Ct. R. 21.26(1)(a)–(e). AFFIRMED.

01-03-2023

10-14-2015

https://www.courtlistener.com/api/rest/v3/opinions/1866201/

150 B.R. 644 (1993) In re Albert J. AUCOIN, Jr., Debtor. Bankruptcy Appeal No. 92-0449, Bankruptcy No. 91-11678K. United States District Court, E.D. Louisiana. January 27, 1993. *645 Dennis Michael Dendy, Amato & Creely, Gretna, LA, for appellant. John E. McAuliffe, Jr., Bienvenu, Foster, et al., New Orleans, LA, for appellees. OPINION WICKER, District Judge. This matter is before the Court on appeal from the Bankruptcy Court. The issue is whether the bankruptcy judge erred in granting an extension of time within which to object to the discharge of the debtor and the dischargeability of the debts owed to them. After considering the record, the briefs of counsel, and the applicable law, the Court finds the bankruptcy judge did not err and his ruling is AFFIRMED. FACTS On April 26, 1991, Albert J. Aucoin, Jr. filed for Chapter Seven protection. He listed both Campbell & Associates Liquidating Corporation (hereafter Campbell Liquidating) and Southern Insurance Facilities Liquidating Corporation (hereafter Southern Liquidating) as creditors.[1] The first meeting of creditors was scheduled for June 4, 1991. The deadline for filing objections/complaints to the discharge of the debtor under 11 U.S.C. § 727 and/or filing a complaint to determine dischargeability under 11 U.S.C. § 523(c) was August 5, 1991. On August 2, 1991 both Campbell Liquidating and Southern Liquidating filed a "Motion to Extend Time to Object to Discharge," in which they made the following allegations: Prior to institution of the bankruptcy proceedings Aucoin had been an officer and director of both corporations; certain corporate assets had been *646 transferred, sold or otherwise disposed of while he served in those positions; the movers had requested that Aucoin deliver to them all corporate books, records, papers, etc., and an accounting for the period during which he controlled the corporations; Aucoin had failed to provide either the documents or the accounting. The movers stated they needed additional time to obtain and review the requested documents and to acquire information concerning possible grounds for objection to discharge. They prayed for an order extending the time in which they "might file a complaint objecting to the discharge of the debtor." In a memorandum in support of the motion for extension, the movers asserted that at Aucoin's deposition, taken several days after the deadline for filing complaints expired, they learned of "many instances of mishandling of funds, breach of fiduciary duty, conflicts of interest and fraud." Among the specific acts they alleged were the following: (a) Aucoin had paid a personal debt to his bookie from Campbell's account. (b) A tax refund of $30,000 to Campbell Liquidating was deposited in the account of Campbell & Associates (a separate corporation), then a check was written to and an entry made on the books of Campbell Liquidating for $19,000 as a tax refund. A check for the balance was written to Aucoin as an "accounting fee," although no entry recording that fee was made on Campbell Liquidating's books. (c) Many of the checks written on the Campbell Liquidating account do not have proper accounting references. (d) Checks written on the Campbell Liquidating account were made payable to one entity while the check stubs and accounts showed payment to a different entity. (e) A check was written to Slurry Dynamics Corporation (of which Aucoin was a 20% shareholder) at a time when the corporations owed no money to Slurry. Aucoin opposed the motion, asserting that an extension was not warranted because the debtors "had available to them on or before the initial deadline for objecting to mover's discharge sufficient information to determine whether to object to said discharge." ACTION OF THE BANKRUPTCY COURT At the January 8, 1992 hearing on the motion for extension, counsel for movers argued that their motion was filed on August 2, 1991, prior to the August 5th deadline; that it was not until the debtor's deposition on August 9th that the creditors discovered that (1) there had been irregularities regarding payment of checks and allocation of an IRS refund, (2) the debtor had not turned over the corporations' Omni Bank account records, and (3) the debtor had produced no records to support his claim that the irregular payments were for his out-of-pocket expenditures.[2] The debtor argued that the creditors had enough information by June 1991 to file a complaint or objection; alternatively, that the motion referred only to "discharge" rather than "discharge of debts" or "dischargeability". After the debtor's counsel affirmed there were still records that had not been turned over to the movers, the bankruptcy judge granted the motion and stated he was extending the deadline for 30 days, for both discharge and dischargeability. On January 17, 1992 the debtor filed a notice of appeal.[3] On appeal, Aucoin contends the bankruptcy court erred because the creditors *647 sought an extension of time to object to discharge of the debtor, but had not sought an extension of time to object to discharge of the particular debts. APPLICABLE LAW Bankruptcy Rule 8013 sets out the standard for review of bankruptcy court rulings: On an appeal the district court . . . may affirm, modify, or reverse a bankruptcy judge's judgment, order, or decree or remand with instructions for further proceedings. Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the bankruptcy court to judge the credibility of the witnesses. A bankruptcy court's findings of fact are reviewable under the "clearly erroneous" standard, but conclusions of law are subject to de novo review. Matter of Consolidated Bancshares, Inc., 785 F.2d 1249, 1252 (5th Cir.1986). Bankruptcy Rule 9013 states that a written motion "shall state with particularity the grounds therefor, and shall set forth the relief or order sought." Aucoin contends the debtors' motion did not satisfy Rule 9013's requirements because "nowhere in those motions did they refer to the dischargeability of any debt. Rather, that motion, both in its caption and the body, requested an Extension of Time to Object to the Debtors Discharge," and it was only in the memorandum in support of the motion that the term "dischargeability" was used. Aucoin argues that discharge of the debtor is different from dischargeability of a debt and, therefore, the terms are not interchangeable. As pointed out in In Re Billings, 146 B.R. 431, 435 (N.D.Ill.1992), discharge of the debtor and dischargeability of specific debts are distinct concepts under the Bankruptcy Code and are not interchangeable: [There is] a presumption in the [Bankruptcy] Code that the debtor will be granted a discharge and that all of his debts will be discharged. [There are] two instances when this presumption will fail. First, under § 727 where the debtor acts dishonestly in connection with the bankruptcy case, then none of the debtor's obligations will be discharged. Second, if the court does grant the debtor a discharge, but a creditor or the debtor satisfies the burden of showing that discharge of a specific debt is contra the policies and language of § 523, then a specific obligation will not be discharged. * * *[4] Bankruptcy Rule 9013 is derived from F.R.Civ.P. 5(a) and 7(b)(1). Bankruptcy Rule 9013 Advisory Committee Note. One of the purposes of the Federal Rules of Civil Procedure is to simplify the pleading phase of litigation. Carey v. Schuldt, 42 F.R.D. 390, 395 (E.D.La.1967). The purpose of the particularity requirement is to afford notice of the grounds and prayer of a motion to both the court and the opposing party, providing that party with a meaningful opportunity to respond in court with enough information to process the motion correctly. Registration Control Systems v. Compusystems, Inc., 922 F.2d 805, 807 (Fed.Cir.1990). In construing the requirement for particularity, if the court can comprehend the basis of a motion and deal fairly with it, technicalities ought to be avoided. McGarr v. Hayford, 52 F.R.D. 219, 221 (S.D.Cal. 1971). Similarly, where opposing counsel is aware of the specific grounds of a motion, and the grounds are stated by the court to both counsel at oral argument, the motion is sufficiently specific. See King v. Mordowanec, 46 F.R.D. 474, 477 (D.R.I. 1969). Where the parties have discussed the grounds for a motion in their briefs and at oral argument, failure to state the grounds in the motion itself does not require denial of the motion. See Span-Deck, *648 Inc. v. Fabcon, Inc., 570 F.Supp. 81, 86 (D.Minn.1983). "[T]he bankruptcy law is not supposed to function merely as a procedural gauntlet. . . ." In Re Kolstad, 928 F.2d 171, 173 (5th Cir.1991), cert. den., ___ U.S. ____, 112 S.Ct. 419, 116 L.Ed.2d 439. "[D]eadlines for filing complaints against the discharge or dischargeability of a particular claim are timed to put the parties on early notice whether a debtor may fail to achieve these most desired rewards of the bankruptcy process." Id., n. 5. Where there is no prejudice to the debtor, the granting of an extension of time for filing an application for determination of the dischargeability of a debt is not an abuse of discretion. See In Re Jones, 560 F.2d 775, 778 (7th Cir.1977). Further, when the affairs of a debtor are complex and additional time is necessary for a creditor to clarify its position on any objections, the creditor is entitled to an extension of time to file a complaint. In Re Sturgis, 46 B.R. 360 (Bankr.W.D.Okla.1985). Similarly, an extension of time for creditors to object is appropriate when a debtor has failed to completely disclose all available information in his possession relating to dischargeability. In Re Halliwell, 130 B.R. 508 (Bankr.S.D.Ohio 1991). CONCLUSION The focus of the debtor's appeal is that the movers used the term "discharge" rather than "dischargeability." Whether the motion was interpreted as applying to discharge of the debtor or to dischargeability of particular debts, however, it is uncontested that the debtor failed to produce all of the records requested by the creditors. The creditors established sufficient cause for the extension of time and the debtor has not shown he was prejudiced or misled by the terminology in the motion. Accordingly, the bankruptcy court's order granting the extension of time and making it applicable to dischargeability of debts as well as to discharge of the debtor is AFFIRMED. NOTES [1] The liquidating corporations should not be confused with Campbell & Associates, Inc., and Southern Insurance Facilities, Inc., which are separate creditors of Aucoin. Both of the latter filed complaints in August 1991 regarding dischargeability of debts owed to them. [2] The parties stipulated that the debtor had turned over the corporate records to the movers prior to filing for bankruptcy, and had turned over most of the checkbooks and cancelled checks in June 1991, except for those from Omni Bank. [3] The movers apparently filed a complaint objecting to the dischargeability of the debts owed to them on January 27, 1992. That complaint is not in the designated record on appeal, but is recorded on the docket sheet and the parties refer to it in their memoranda. [4] The court explained, at 433-434, that § 727 "serves a policing function by ensuring that only honest debtors are permitted to take advantage of the bankruptcy laws." Among the conditions for denial of discharge are proof of the debtor's mishandling of property, failure to produce adequate books and records, commission of bankruptcy crimes, and failure to explain losses. Section 523, in contrast, exempts specified debts from the general discharge, on grounds that the debtor acted in an improper manner at the time he or she incurred the specific debt.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2882136/

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-04-00006-CR ______________________________ SAMUEL HEATH COCHRAN, Appellant   V.   THE STATE OF TEXAS, Appellee                                                On Appeal from the 4th Judicial District Court Rusk County, Texas Trial Court No. CR01-128                                                   Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION             Samuel Heath Cochran has appealed from an order of the Fourth Judicial District Court denying his motion for return of property. The property he seeks to recover consists of polaroid pictures of brickwork and construction introduced as evidence in his criminal trial for attempted manufacture of a controlled substance. Cochran was convicted December 6, 2001, over two years ago.             This Court has jurisdiction to hear appeals brought from judgments of conviction and from other orders as allowed by law. See Tex. R. App. P. 25.2(a)(2). As a general rule, an appellate court may consider appeals by criminal defendants only after conviction. See Ex parte Shumake, 953 S.W.2d 842, 844 (Tex. App.—Austin 1997, no pet.). Intermediate appellate courts have no jurisdiction to review interlocutory orders absent express authority. See Ex parte Apolinar v. State, 820 S.W.2d 792, 794 (Tex. Crim. App. 1991); McKown v. State, 915 S.W.2d 160, 161 (Tex. App.—Fort Worth 1996, no pet.).             This appeal does not fall within one of the exceptions to the rule. We conclude this Court is without jurisdiction to entertain this appeal.                       We dismiss the appeal for want of jurisdiction.                                                                                       Josh R. Morriss, III                                                                                     Chief Justice Date Submitted:          February 23, 2004 Date Decided:             February 24, 2004 Do Not Publish of the anus, breast, or any part of the genitals of a child . . . . Tex. Penal Code Ann. § 21.11(c)(1) (Vernon 2003). In this case, the jury acquitted Rex of two of the alleged sexual acts, and found him guilty of touching T.R.'s genitals. The evidence is not particularly strong, but there is evidence that it occurred, and that when T.R. pulled away, Rex pursued to continue fondling him, and there is evidence that might indicate an emission of semen by Rex. There is also evidence that, if believed by the jury, could have easily supported a different result. We are not, however, permitted to second-guess a jury's determination that evidence is sufficient when the credibility of the witness is at bar, as in this instance. We find the evidence legally and factually sufficient to support the verdict. We affirm the judgment. Bailey C. Moseley Justice Date Submitted: November 4, 2008 Date Decided: November 5, 2008 Do Not Publish

01-03-2023

09-07-2015

https://www.courtlistener.com/api/rest/v3/opinions/2907427/

Sonny Marquez MOTION TO DISMISS DENIED SEPTEMBER 13, 1990 NO. 10-90-111-CR Trial Court # 90-199-C IN THE COURT OF APPEALS FOR THE TENTH DISTRICT OF TEXAS AT WACO * * * * * * * * * * * * * SONNY MARQUEZ,    Appellant v. THE STATE OF TEXAS,    Appellee * * * * * * * * * * * * * From 54th Judicial District Court McLennan County, Texas * * * * * * * * * * * * * O P I N I O N * * * * * * * Pursuant to Rule 60(b) of the Texas Rules of Appellate Procedure, the State filed a motion to dismiss Sonny Marquez's appeal on August 10, 1990. Marquez was convicted of Burglary and sentenced to ten years in the Texas Department of Corrections on June 13, 1990. Affidavits of Dan Weyenberg and Coy Jones of the McLennan County Sheriff's Office indicate that Marquez escaped from the county jail on June 30, 1990. Law enforcement officers returned Marquez to the jail after they found Marquez on July 16, 1990. Jones and Weyenberg affied that Marquez's return was not voluntary. Notice of appeal was filed on July 10, 1990, and the transcript was filed on August 10, 1990. Rule 60(b) provides in part: (b) Criminal Cases. An appeal shall be dismissed on the State's motion, supported by affidavit, showing that appellant has escaped from custody pending the appeal and that to the affiant's knowledge, has not voluntarily returned to lawful custody within the State within ten days after escaping. The appeal shall not be dismissed, or, if dismissed, shall be reinstated, on filing of an affidavit of an officer or other credible person showing that appellant voluntarily returned to lawful custody within the State within ten days after escaping. TEX. R. APP. P. 60(b) (emphasis added). The source for this rule is former Texas Code of Criminal Procedure Article 44.09. See TEX. CODE CRIM. PROC. art. 44.09 (1965)(repealed 1986). At the time Article 44.09 was repealed, it provided for escape "after giving notice of appeal," instead of "pending the appeal" as Rule 60(b) now provides. In Bullock v. State, 709 S.W.2d 669 (Tex. Crim. App. 1986), the court discussed the applicability of Article 44.09 to a defendant who escapes before the appellate court obtains jurisdiction. The defendant in Bullock was asserting that if a defendant escapes before the record is filed in the reviewing court and he is returned to custody before the record is filed the appeal will not be dismissed. Id at 670. The court disagreed with the defendant's assertion in Bullock because the defendant's premise was based on Article 44.09 which provided for escape "pending appeal" prior to its amendment in 1981. Id. Therefore, because the defendant in Bullock escaped after he gave notice of appeal, his appeal was dismissed. Id. In this case, not only was the notice of appeal filed after Marquez had escaped, but the transcript was filed after Marquez had been returned into custody. Therefore, at the time Marquez escaped there was no appeal pending, and Rule 60(b) does not apply. Because the "pending appeal" language is identical to the language of Article 44.09 before it was amended in 1981, now the law is as it was before 1981: "If the appellant is back in custody when the record reaches the appellate court, the appeal will not be dismissed, but will be treated regularly." Austell v. State, 638 S.W.2d 888, 890 (Tex. Crim. App.). The State's motion to dismiss is denied. PER CURIAM PUBLISH      IN THE TENTH COURT OF APPEALS   No. 10-05-00088-CR   Ex parte David Murphy,   Appellant       From the 52nd District Court Coryell County, Texas Trial Court # FT-04-15251   MEMORANDUM  Opinion             David Murphy filed an application for writ of habeas corpus with the trial court under article 11.07 of the Texas Code of Criminal Procedure.[1]  Because the trial court did not act on the writ within 20 days, the failure of the court to act constitutes a finding that there are no controverted, previously unresolved facts which are material to Murphy’s confinement.  Tex. Code Crim. Proc. Ann. art. 11.07, § 3(c) (Vernon Supp. 2004-2005).  At this point, the trial court clerk “shall immediately transmit to the Court of Criminal Appeals a copy of the application….”  Id.           The trial court clerk sent this Court the record of application.  We have no jurisdiction of article 11.07 writ applications.  See Tex. Code Crim. Proc. Ann. art. 11.05 (Vernon 1977); see also Nix v. State, 65 S.W.3d 664, 670 n. 26 (Tex. Crim. App. 2001).  Thus, it appears the record was mistakenly sent to this Court rather than the Court of Criminal Appeals.           The Clerk of this Court is, therefore, ordered to immediately forward the record in this cause to the Court of Criminal Appeals as an 11.07 writ made returnable to the Court of Criminal Appeals.           Accordingly, this cause is dismissed.                                                                      TOM GRAY                                                                    Chief Justice   Before Chief Justice Gray,           Justice Vance, and           Justice Reyna Appeal Dismissed Opinion delivered and filed February 16, 2005 Do Not Publish [CR25] [1] Murphy filed a previous writ with the trial court dated September 27, 2004.  That writ is the subject of Murphy’s notice of appeal in Cause Number 10-04-00366-CR.  This writ of habeas corpus was filed on December 3, 2004, and is not a part of the referenced appeal.Â

01-03-2023

09-10-2015

https://www.courtlistener.com/api/rest/v3/opinions/3435682/

Plaintiff brought this action against the defendant grain company for $104.46, with interest, for corn sold and delivered by the plaintiff to the defendant. Intervener in his petition of intervention asserted plaintiff was indebted to him on a promissory note in the amount of $93.97, with interest at seven per cent from and after June 15, 1938; that the note was secured by a chattel mortgage signed by plaintiff, his brother, and mother, covering this corn and other property; that he did not give consent to plaintiff to sell the corn upon which he had the mortgage lien and that on the day of sale he notified defendant of his lien and thereafter received the $104.97 from *Page 1236 the defendant. Intervener further alleged that he received from the sale of two horses and three cattle owned by the plaintiff and included in the chattel mortgage the sum of $132.73; that from the proceeds he paid off a prior mortgage to the Farm Security Administration in full, or $156.22, and applied the balance upon his note, which left a balance due intervener on the note of $18.79, with interest at seven per cent from April 19, 1939. Defendant filed an answer admitting the payment to intervener of the $104.97 and plaintiff filed a reply to the petition of intervention alleging in substance that at the time he executed and delivered the chattel mortgage to intervener, the latter orally promised that he would in no manner interfere with any agreements or arrangements made with the representatives of the Farm Security Administration relative to the payment of its obligation. Upon these issues the case was tried to the court without a jury and the court rendered judgment in favor of the intervener and against the plaintiff for $20, the balance due on plaintiff's note to intervener, and $2.28 attorney's fee in favor of intervener's attorney. [1] It is unnecessary to comment upon all the evidence in the case for plaintiff complains of but one error. Plaintiff asserts that the trial court erred in sustaining intervener's objections to testimony as to a conversation had with the intervener, either about the security or anything else in connection with the signing of the chattel mortgage and note which he gave to the intervener. We are referred to two places in the record where plaintiff asserts the court erred in sustaining objections. While plaintiff was on the witness stand his attorney asked him the following question: "Now prior to the time that you gave Mr. Hamill this note and mortgage, did you have any conversation with him about the security or anything else in connection with it?" A little later the following question was put to the same witness: "Were all the matters affecting the property and the matters *Page 1237 as to the liens ahead of it referred to in that oral conversation which you said you had before the mortgage was signed, all put into the written instrument itself?" To both questions the court sustained intervener's objections that the testimony was incompetent and an attempt to vary by parol testimony the terms of a written instrument. [2] We will consider both questions together and our first observation is that there was no offer of testimony. It is the settled rule of this court that where the record does not disclose what counsel expects to prove by a witness, or the question does not show the nature of the intended proof, then no prejudice is shown by a sustained objection. Pearson v. Butts,224 Iowa 376, 276 N.W. 65; Arnold v. Livingstone, 155 Iowa 601, 134 N.W. 101. Moreover, it is clear from the record in this case that substantially the same questions were answered by this witness. After the court sustained the objection to the first question the attorney asked him: "Did you discuss there, before these papers were signed, whether — how much you owed Mr. Hamill, and about making out the mortgage, and what the security was, and things of that kind?" To this question, over objection, the witness answered in the affirmative. Again, this same witness was asked the following question: "Were the matters referred to in that conversation concerning the amount and the security and the liens ahead of the security and the agreements relating thereto reduced to writing and put in the mortgage itself?" The witness answered in the affirmative, but later stated that he did not understand the question, and again he was asked: "Do you know what was said in those conversations about the liens ahead of it and releases and all those things affecting the property?" The witness answered in the affirmative and he was then asked: *Page 1238 "Do you know if all those things affecting the property was put into the mortgage?" Objection was made to this question, which the court overruled, and the witness answered in the affirmative. In view of this record of all the testimony, it seems clear that the witness did in fact give his testimony concerning the matters about which he was interrogated in the questions upon which plaintiff now predicates the claimed error. In this situation no prejudicial error results. Sonka v. Yonkers,191 Iowa 599, 180 N.W. 876; Morrow v. Downing, 210 Iowa 1195, 232 N.W. 483. We find no error sufficient to warrant a reversal of the case. Since the plaintiff complained of no other error in the trial below, the judgment in the district court is hereby affirmed. Intervener's motion to dismiss the appeal is overruled. — Affirmed. All JUSTICES concur.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/127949/

538 U.S. 904 AMERICAN INSURANCE ASSN. ET AL.v.GARAMENDI, INSURANCE COMMISSIONER, STATE OF CALIFORNIA. No. 02-722. Supreme Court of United States. March 10, 2003. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. 2 C. A. 9th Cir. [Certiorari granted sub nom. American Insurance Assn. v. Low, 537 U. S. 1100.] Motion of Mitsubishi Materials Corp. et al. for leave to file a brief as amici curiae granted.

01-03-2023

04-28-2010

https://www.courtlistener.com/api/rest/v3/opinions/127960/

538 U.S. 905 BOWENv.CALIFORNIA. No. 01-8816. Supreme Court of United States. March 10, 2003. 1 CERTIORARI TO THE COURT OF APPEALS OF CALIFORNIA FOR THE FOURTH APPELLATE DISTRICT. 2 Ct. App. Cal., 4th App. Dist. Certiorari denied.

01-03-2023

04-28-2010

https://www.courtlistener.com/api/rest/v3/opinions/1513236/

425 F. Supp. 727 (1977) Michael A. BREW, suing by his next friend Anthony C. Brew v. F. David MATHEWS, Secretary of Health, Education and Welfare. Civ. A. No. 76-131. United States District Court, E. D. Pennsylvania. January 20, 1977. John J. Kelly, Jr., Kelly & Mooney, Philadelphia, Pa., for plaintiff. Robert S. Forster, Jr., Asst. U. S. Atty., Philadelphia, Pa., for defendant. Before ADAMS, Circuit Judge, and FULLAM and VanARTSDALEN, District Judges. OPINION VanARTSDALEN, District Judge. Defendant, the Secretary of Health, Education and Welfare (HEW), has moved to dissolve the three judge court convened pursuant to 28 U.S.C. § 2282 and § 2284. The motion will be granted. Plaintiff applied for disability insurance benefits under provisions of the Social Security Act. HEW, by final action, denied the claim. Plaintiff appealed to the district court pursuant to section 205(g) of the Act, 42 U.S.C. § 405(g). The appeal alleges that sections 202(d)(1)(C)(i), (iii) and (d)(8) of the Social Security Act, 42 U.S.C. *728 §§ 402(d)(1)(C)(i), (iii) and (d)(8), as interpreted by HEW, create an unconstitutional classification that arbitrarily precludes claimant from benefits. A motion was made by plaintiff to convene a three judge court. The relief sought was a declaratory judgment and an injunction prohibiting enforcement of the challenged provisions of the statute. Section 205(g) of the Social Security Act provides for review by a district court of final administrative action concerning claims for benefits under the Social Security Act. On review a district court "shall have the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). Section 205(h) provides, inter alia, that "no finding of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided." Simply stated, HEW contends that the above quoted exclusive remedies provided in sections 205(g) and 205(h) of the Act preclude the district court from granting any equitable relief, and therefore a three judge court is without jurisdiction to restrain and enjoin the Secretary from enforcing any provision of the Act, even if such provision is unconstitutional. HEW argues that a single judge of a district court can grant complete relief to a claimant by reversing the final decision of the Secretary and awarding benefits, if the court determines that the challenged provisions of the Act, as interpreted by the Secretary, constitute an unconstitutional classification. In determining the present motion, this court is faced with what the Supreme Court has stated are "difficult and perhaps close jurisdictional arguments"[1] that involve "complicated questions of legislative intent and a statutory provision, 42 U.S.C. § 405(h), which has baffled district courts and courts of appeals for years . . . ."[2] Nevertheless by reason of the Act of August 12, 1976, Pub.L. 94-381, which repealed 28 U.S.C. § 2282 and substantially amended 28 U.S.C. § 2284 whereby three judge courts are no longer required whenever an Act of Congress is challenged on constitutional grounds, the present decision will be of little legal significance or precedential value. Anthony Brew became entitled to disability benefits under the Social Security Act in March of 1969. Michael Brew, a minor, was adopted by Anthony Brew on June 11, 1973. Application on behalf of Michael Brew for benefits as a dependent child of Anthony Brew was denied by final administrative action, and the present appeal with a request for convening the three judge court was filed. The challenged sections of the Social Security Act, as interpreted by HEW, allow a so-called post-disability adopted child to qualify for benefits only if the child has been living with and receiving at least one-half of his or her support from the adoptive parent for a period of one year immediately preceding the date of such parent's disability benefits entitlement. Plaintiff's substantive constitutional argument contends that the statute creates a wholly arbitrary and invalid classification as between those post-disability adopted children who have been living with and supported by the adoptive parent prior to disability entitlement, and those who have not. Plaintiff contends that the rationale of Jimenez v. Weinberger, 417 U.S. 628, 94 S. Ct. 2496, 41 L. Ed. 2d 363 (1974), controls the jurisdictional, procedural and substantive issues of this case. The Supreme Court noted probable jurisdiction, 414 U.S. 1061, 94 S. Ct. 567, 38 L. Ed. 2d 467 (1973), from a three judge district court decision upholding the constitutionality of the Social Security Act's various classifications of illegitimate children. Without mention of the jurisdictional problem, the Supreme Court held that the challenged provisions created un-constitutional categories, and remanded the *729 case to the lower court to determine if the claimant factually qualified for benefits under the Supreme Court's guidelines. In Weinberger v. Salfi, 422 U.S. 749, 95 S. Ct. 2457, 45 L. Ed. 2d 522 (1975), also relied upon by the defendant, a widow and her child were denied social security survivors benefits for failure to qualify under the nine month "duration-of-relationship" requirement of the Social Security Act. A three judge court held that the Act was unconstitutional both as to the named plaintiffs and to a class composed of all persons similarly disqualified. Jurisdiction was claimed under 28 U.S.C. § 1331.[3] The Supreme Court held that class action relief, at least as to claimants who had not exhausted administrative remedies, was precluded; that there was no "federal question" jurisdiction under 28 U.S.C. § 1331; and on the merits that the classification was constitutional. The significance of Salfi to the present jurisdictional issue is stated at 422 U.S. 763, n.8, 95 S. Ct. 2466: Since § 405(h) is the basis for district court jurisdiction, there is some question as to whether it had authority to enjoin the operation of the duration-of-relationship requirements. Section 405(h) accords authority to affirm, modify or reverse a decision of the Secretary. It contains no suggestion that a reviewing court is empowered to enter an injunctive decree whose operation reaches beyond the particular applicants before the court. In view of our dispositions of the class action and constitutional issues in this case, the only significance of this problem goes to our own jurisdiction. If a § 405(g) court is not empowered to enjoin the operation of a federal statute, then a three-judge District Court was not required to hear this case, 28 U.S.C. § 2282, and we are without jurisdiction under 28 U.S.C. § 1253. However, whether or not the three-judge court was properly convened, that court did hold a federal statute unconstitutional in a civil action to which a federal agency and officers are parties. We thus have direct appellate jurisdiction under 28 U.S.C. § 1252. McLucas v. DeChamplain, 421 U.S. 21 at 31-32, 95 S. Ct. 1365 at 1372, 43 L. Ed. 2d 699 (1975). Thus, despite defendant's argument to the contrary, Salfi does not determine the issue as to whether a three judge court was properly convened in this case. Norton v. Mathews, 427 U.S. 524, 96 S. Ct. 2771, 49 L. Ed. 2d 672 (1976), seemingly could not skirt the issue, because there a three judge district court had upheld the validity of Social Security Act classifications of illegitimate children. Thus, direct appeal under 28 U.S.C. § 1252 was not available as it was in Salfi. Appellate jurisdiction, therefore, could derive only from a duly convened three judge court under 28 U.S.C. § 1253, which of necessity required subject matter jurisdiction in the three judge district court. Again, however, the issue though recognized was avoided. 427 U.S. 524, 530 & n.7, 96 S. Ct. 2771, 2774. The Court held that Mathews v. Lucas, 427 U.S. 495, 96 S. Ct. 2755, 49 L. Ed. 2d 651 (1976), settled the issue on the merits in favor of the constitutionality of the challenged provision. Therefore, irrespective of whether the three judge court had proper jurisdiction, the Court ruled that there would be "no point" in a remand for procedural improprieties. The opinion concludes as follows: Making the assumption, then, without deciding, that our jurisdiction in this case is established, we affirm the judgment in favor of the Secretary on the basis of our decision in Mathews v. Lucas, ante. Significantly, Justices Stevens, Brennan and Marshall dissented in Norton on the merits and in so doing concluded that the three judge court had been properly convened, and could resolve the constitutional issues. In Kohr v. Weinberger, 378 F. Supp. 1299 (E.D.Pa.1974), a three judge district court *730 was convened to pass upon the constitutionality of classifications based on sex contained in the Social Security Act. The court, noting that plaintiff conceded he had not exhausted all administrative remedies then available, nonetheless held it had jurisdiction and that the statutory provisions were valid. On appeal, the Supreme Court vacated and remanded, 422 U.S. 1050, 95 S. Ct. 2671, 45 L. Ed. 2d 704 (1974), with directions to reconsider jurisdiction in light of the intervening Salfi decision. Thereafter, without opinion, the three judge court dissolved itself. Had the decision been due to failure to exhaust administrative remedies, presumably the action would have been dismissed, rather than the court dissolved. There appears to be no relevant legislative history in regard to Congress's intent as to whether sections 205(g) and (h) permit or preclude injunctive and/or declaratory relief of the type sought in this case. As outlined above, case law is scant and inconclusive. The statute refers to a judgment by the district court "affirming, modifying or reversing" the Secretary's decision. There is no mention of enjoining, restraining or granting of equitable relief. Many statutes passed by Congress provide expressly for such types of relief where intended. See, e. g., 50 U.S.C.App. § 925(a) (Emergency Price Control Act of 1942, § 205(a), granting power to enter "a permanent or temporary injunction, restraining order, or other order"); 29 U.S.C. § 217 (Fair Labor Standards Act, § 17, granting courts power "to restrain violations"); 15 U.S.C. §§ 21(c), 45(c) (Clayton Act and Federal Trade Commission Act, granting power to "enter a decree affirming, modifying, or setting aside the order of the commission or board, and enforcing the same to the extent that such order is affirmed, and to issue such writs as are ancillary to its jurisdiction or are necessary in its judgment to prevent injury to the public"). In Porter v. Warner Holding Co., 328 U.S. 395, 66 S. Ct. 1086, 90 L. Ed. 1332 (1946), the Supreme Court was faced with the issue of whether the district courts, having been granted express injunctive powers under the Emergency Price Control Act of 1942, could order relief in the form of restitution. The Court stated: Moreover, the comprehensiveness of this equitable jurisdiction is not to be denied or limited in the absence of a clear and valid legislative command. Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court's jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied. "The great principles of equity, securing complete justice, should not be yielded to light inferences, or doubtful construction." Id. at 398, 66 S. Ct. at 1089 quoting Brown v. Swann, 35 U.S. (10 Pet.), 497, 503, 9 L. Ed. 508 (1836). Fourteen years later, in Mitchell v. Robert De Mario Jewelry, Inc., 361 U.S. 288, 80 S. Ct. 332, 4 L. Ed. 2d 323 (1960), the Court was asked to determine whether an express power to grant injunctive relief under the Fair Labor Standards Act also implied the power to order reimbursement of lost wages. The Court held that the district court had erred in taking the approach that the equitable relief in question must be expressly conferred by an act of Congress or necessarily implied from a congressional enactment. Instead, the Court stated, "the proper criterion is that laid down in Porter v. Wagner Co. [sic]" Together, the Porter and Mitchell cases suggest that full equity powers are presumed to lie in a federal district court, and the contrary must be shown, either expressly or by "necessary and inescapable inference." However, Porter and Mitchell are distinguishable. Equitable powers of some degree had been expressly granted to the district courts under the statutes there being considered, and an attempt was being made to expand those express equitable powers. In the case before us, § 205(g) grants no express equity power. In any event, under the Porter and Mitchell criterion there would seem to be a "necessary and inescapable inference" that § 205(g) denies district courts the right to issue injunctive relief. A close perusal of §§ 205(g) and (h) of the Act reveals that *731 Congress intended a very confined scheme of judicial review of the Secretary's decisions. Section 205(h), as recently construed in the Salfi decision, appears to be the exclusive jurisdictional basis for such review, expressly precluding review under any of the general federal question provisions. In addition, the Salfi decision restricts the availability of class actions under 205(g) which challenge a decision of the Secretary, by requiring that all class members obtain a "final decision . . . made after a hearing." 422 U.S. at 763-64, 95 S.Ct. at 2466. Sections 205(g) and (h), read together, suggest that Congress envisioned case-by-case review and resolution rather than granting sweeping injunctive powers to invalidate portions of the Act. The question arises as to how an effective constitutional challenge can be made to the provisions of the Social Security Act, if judicial review is limited to affirming, modifying, or reversing the Secretary's decisions. The Supreme Court resolved the problem in Flemming v. Nestor, 363 U.S. 603, 80 S. Ct. 1367, 4 L. Ed. 2d 1435 (1960). In that case, the plaintiff challenged the constitutionality of a provision of the Social Security Act, pursuant to which the Secretary had terminated benefits. Although the action drew into question the constitutionality of the Act, no injunctive relief was sought. The Court, in addressing the jurisdictional issue of whether a three judge district court should have been convened, stated: Under the decisions of this Court, this § 205(g) action could, and did, draw into question the constitutionality of § 202(n). See, e. g., Anniston Mfg. Co. v. Davis, 301 U.S. 337, 345-346, 57 S. Ct. 816, 820, 81 L. Ed. 1143. However, the action did no more. It did not seek affirmatively to interdict the operation of a statutory scheme. A judgment for appellee would not put the operation of a federal statute under the restraint of an equity decree; indeed apart from its effect under the doctrine of stare decisis, it would have no other result than to require the payment of appellee's benefits. 363 U.S. at 607, 80 S. Ct. at 1370. Hence, the Supreme Court held that where a claimant is denied benefits by the Secretary pursuant to a provision of the Act which is constitutionally invalid, a proper mode of relief is reversal of the Secretary's decision and an order to pay benefits to the claimant. In considering the motion to dissolve this three judge district court, it is appropriate to consider the generally restrictive attitude expressed by the Supreme Court and the lower federal courts toward the convening of three judge district courts. In applying the three judge court statute, the Supreme Court has consistently stressed that "the three-judge-court legislation is not `a measure of broad social policy to be construed with great liberality;' but is rather `an enactment in the strict sense of the term and to be applied as such.'" Mitchell v. Donovan, 398 U.S. 427, 431, 90 S. Ct. 1763, 1765, 26 L. Ed. 2d 378 (1970), quoting Phillips v. United States, 312 U.S. 246, 251, 61 S. Ct. 480, 85 L. Ed. 800 (1941). See Gonzalez v. Automatic Employees Credit Union, 419 U.S. 90, 97-98, 95 S. Ct. 289, 42 L. Ed. 2d 249 (1974). The rationale supporting this policy is clear in that the system of three judge district courts places an additional burden on the federal judiciary and where possible, the convocation of such a court is to be avoided.[4] The Secretary's motion to dissolve the three judge district court will be granted and an appropriate order will be entered. We wish to make clear the limited scope of the action being taken. The disposition here does not indicate that Mr. Brew is foreclosed from challenging the constitutionality of sections 202(d)(1)(i), (iii) and (d)(8). Rather, we hold merely that Congress, *732 in section 205(g), established a statutory regime whereby constitutional challenges in social security benefit matters would be resolved on a case-by-case basis, instead of through the broader medium of injunctive actions. Since a three judge district court is provided for under the statute only in cases where injunctive relief is sought, this special three judge court must be dissolved. However, social security claimants, like Mr. Brew, remain free to press their constitutional claims before a single district judge. NOTES [1] Norton v. Mathews, 427 U.S. 524, 530, 96 S. Ct. 2771, 2774, 49 L. Ed. 2d 672 (1976). [2] Weinberger v. Salfi, 422 U.S. 749, 787, 95 S. Ct. 2457, 2477, 45 L. Ed. 2d 522 (1975) (Brennan, J., dissenting). [3] The present action makes no class action allegations, nor does it assert § 1331 federal question jurisdiction. Jurisdiction is asserted solely under section 205(g) of the Act. [4] However, the importance of such "policy" considerations is obviously of less significance in view of the repeal of 28 U.S.C. § 2282 and the amendment to 28 U.S.C. § 2284, adopted by Congress in apparent favorable response to the Court's pronouncements of the needless judicial burdens imposed by three judge courts with direct appeal to the United States Supreme Court.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2767341/

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-6946 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHANEL ELEASE FAISON, a/k/a Chanel Faison Faison, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Rebecca Beach Smith, Chief District Judge. (4:12-cr-00004-RBS-TEM-2; 4:13-cv-00093- RBS) Submitted: December 22, 2014 Decided: January 7, 2015 Before DUNCAN and WYNN, Circuit Judges, and DAVIS, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Chanel Elease Faison, Appellant Pro Se. Robert Edward Bradenham, II, Howard Jacob Zlotnick, Assistant United States Attorneys, Andrew Lamont Creighton, OFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia; Kelly Kathleen Pearson, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; John Curtis Hanley, Kevin Louis Rosenberg, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Chanel Elease Faison seeks to appeal the district court’s order denying relief on her 28 U.S.C. § 2255 (2012) motion. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2012). 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) (2012). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the motion states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85. We have independently reviewed the record and conclude that Faison 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 3 contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED 4

01-03-2023

01-07-2015

https://www.courtlistener.com/api/rest/v3/opinions/4538769/

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0944-18T2 JACQUELINE CONNELL, Plaintiff-Appellant, and JOSEPH CONNELL, Plaintiff-Respondent, v. NATIONAL RETAIL SYSTEMS, INC., Defendant-Respondent. __________________________ Argued telephonically February 13, 2020 – Decided June 4, 2020 Before Judges Rothstadt and Mitterhoff. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-0940-16. Scott B. Piekarsky argued the cause for appellant (Piekarsky & Associates, LLC, attorneys; Scott B. Piekarsky, of counsel and on the briefs; Jennifer O'Neill, on the briefs). Michael O'Brien Boldt argued the cause for respondent National Retail Systems, Inc. (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; Kevin B. Walker, of counsel and on the brief; Anastasia Stylianou, on the brief). Joseph Connell, respondent pro se, joins in the brief of appellant Jacqueline Connell. PER CURIAM Plaintiff Jacqueline Connell appeals from two orders entered by the Law Division on April 27, 2018 granting defendant National Retail Systems, Inc. (NRS) summary judgment on its counterclaim for breach of contract, denying her cross-motion for summary judgment, and dismissing her complaint. She also challenges an August 17, 2018 order fixing the amount of attorney's fees awarded to NRS in an earlier order, and a September 28, 2018 order denying her motion for reconsideration. The parties' dispute focused upon an agreement between plaintiff, her husband, plaintiff Joseph Connell, and NRS, a company owned and operated by plaintiff's family members. 1 The agreement required Joseph to refrain from 1 Joseph Connell did not file an appeal but notified this court that he "adopt[ed] all pleadings filed by" plaintiff and her attorneys. We refer to Joseph and other A-0944-18T2 2 specified conduct. The motion judge granted NRS summary judgment on its counterclaim after he determined it was undisputed that the agreement was valid, Joseph breached the agreement, and there was no genuine issue as to a material fact about NRS being entitled to the enforcement of the agreement. On appeal, plaintiff argues that the agreement was void as to Joseph since the agreement lacked consideration and its non-compete/non-disclosure provisions were invalid, and because the agreement was void as to Joseph, summary judgment was wrongfully granted as there was no evidence supporting plaintiff's breach of the agreement. She also contends that the judge wrongfully denied her cross-motion for summary judgment, the judge erred by granting defendant attorney's fees, and the judge incorrectly denied her motion for reconsideration. We affirm the motion judge's determination that Joseph breached the agreement, substantially for the reasons expressed by the motion judge in his May 8, 2018 written decision. However, we are constrained to remand for findings as to the judge's award of counsel fees because the judge did not provide any statement of reasons for the award. individuals in this matter by their first names for clarity and to avoid any confusion arising from the common surnames in this intrafamily dispute. A-0944-18T2 3 The material facts are generally undisputed. NRS, a closely held family corporation, was formed in 1952 as a logistics company that provided freight transportation to its customers. NRS was founded and has been operated by members of plaintiff's family, the Walsh family, since its inception. From 2000 until 2009, when he passed away, plaintiff's father Francis "Frank" Walsh II (Frank) was the majority shareholder and operated the company. Since 2016, all of the company's outstanding shares have been held in a family trust established in 2012. Plaintiff's brother, Francis Walsh III, is the sole beneficiary of the trust, and since 2016 is its chief executive officer. After plaintiff married Joseph in 1987, he was hired by NRS as a dispatcher and driver in January 1992. In 1997, Joseph became a terminal manager and remained in that position until October 31, 2007, when he was terminated for cause relating to his public disclosure of personal confidential information about Frank and Francis, and financial information about NRS. The events leading to Joseph's termination centered on his volatile relationship with Francis that was marked by "long-standing differences between them." The relationship was so bad that while Frank was alive, he required that the two not interact with each other. After Francis allegedly breached that directive, a heated meeting was held at which Frank and Joseph A-0944-18T2 4 almost engaged in a physical altercation. At the meeting, Frank informed Joseph that he did not care that his son violated the directive. Joseph then made allegations about Francis's sexual relations, orientation, and activities. Frank informed Joseph that he could not have this disruption with his company and asked Joseph what it would take for him to leave. The meeting led to NRS's Board of Directors (BOD) and shareholders threatening to take action against Joseph, and he proposing on October 21, 2007, that he leave the company with a severance package, without obligating him to perform any services for the company, under the following terms,: Joseph . . . agrees to never disclose any financial or personal information pertaining to [NRS], its [BOD,] or Shareholders. Joseph . . . also agrees to reimburse [NRS] if he violates this agreement including attorney['s] fees. The reimbursement amount would include any pay or compensation obtained after the start of the signed agreement date. [NRS, BOD,] and Shareholders agree[] to continue Joseph['s] . . . current rate of pay and medical insurance until the age of 67 (his expected retirement age). In the event the company is sold, [NRS, BOD,] and Shareholders agree to pay the balance of the agreement or transfer agreement to the new owners. [NRS, BOD,] and Shareholders also agree to reimburse Joseph . . . any attorney['s] fees paid to comply with agreement. Two days later, Joseph sent an email to an NRS attorney, in which he asked the attorney to distribute to the BOD and shareholders a letter that A-0944-18T2 5 disclosed Frank's criminal convictions and how Frank encouraged Joseph to take advantage of NRS customers and provide them with false information. It also alleged illegal activities Frank participated in and how Frank was abusive towards his family. Joseph ended the letter by stating he needed to report Frank to the police for his family's safety. On October 31, 2007, NRS terminated Joseph. After his termination, plaintiff was placed on NRS's payroll, although she was not required to perform any services, she was not given a specific title and was not paid any compensation in 2007. Additionally, after Joseph’s termination, the parties entered discussions about a "[s]everance [a]greement," along the lines of his earlier proposal that provided Joseph with severance and NRS with assurances that he would no longer disseminate confidential information. During the discussions, Joseph asked if plaintiff could be included in the agreement as he worried her family, especially Frank, would retaliate against her by terminating her employment. On January 22, 2008, the final agreement was signed by NRS, plaintiff, and Joseph. It stated: Joseph and [plaintiff] . . . agree to never disclose or share [NRS], [BOD,] or Shareholders financial or personal information. Joseph . . . agrees not to work for any competitors or customers unless written A-0944-18T2 6 authorization is obtained from [NRS]. In the event that Joseph or [plaintiff] . . . violates this agreement, they agree to reimburse [NRS], for any pay or benefits received after the signing of this agreement including any attorney['s] expenses. [NRS], [BOD,] and Shareholders agree[] to continue paying [plaintiff's] current rate of pay ($104,000 per annum) and family medical insurance until their 67th birthday. In the event the company is sold or dissolved, [NRS], [BOD,] and Shareholders may elect to continue making payments as scheduled or pay off the remaining balance of this agreement. [NRS], [BOD,] and Shareholders agree to reimburse any attorney['s] fees to enforce agreement. [(Emphasis added).] Until 2015, the parties followed the agreement. During the years following the agreement's execution, plaintiff performed services without a set work schedule, helping with advertising, marketing, and organizing company events.2 She also attended conventions across the country to interact with the company's customers. Plaintiff was "paid . . . the equivalent of" Joseph's former salary and NRS considered her an asset who "did whatever she needed to do and [went] above and beyond." 2 According to plaintiff, she began working at NRS after January 22, 2008, although she later modified her start date to October 2007. A-0944-18T2 7 Inexplicably, beginning in April 2015, Joseph began to send other information in contravention of the agreement. On April 24, 2015, Joseph emailed Francis's father-in-law and stated that Francis's wife contracted a sexually transmitted disease from Francis and informed the father-in-law of Francis's sexual orientation. On another occasion, Joseph disclosed NRS's financial information to a former NRS employee and a union driver. On August 17, 2015, Joseph emailed government officials confidential information pertaining to NRS's revenue. Joseph also reported to the FBI that NRS had and was continuing to conduct illegal activity that was negatively impacting NRS's employees. On August 20, 2015, he sent an email to the local union, sharing NRS's financial information. The following day, Joseph received a cease and desist letter from NRS. Joseph then emailed several NRS employees and government officers that he would "continue to help the Union Members of Local 1964." Additionally, on August 22, 2015, Joseph sent an email to a third party, disclosing further information about NRS's past activities and financial information. In response to Joseph's actions, NRS's BOD decided to take "action to end the salary [that was being] paid to" plaintiff. On August 31, 2015, NRS A-0944-18T2 8 informed plaintiff that she was being terminated due to the company downsizing. Plaintiff and Joseph filed a complaint on March 1, 2016, alleging breach of contract and violation of the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 (CEPA).3 The complaint alleged, among other things, that the agreement was a valid contract supported by "valuable consideration," and by terminating payment to "plaintiffs" on August 31, 2015, NRS "breached the contract." NRS filed an answer and asserted counterclaims for breach of contract and unjust enrichment. In its pleading, NRS also alleged that the agreement was "a valid and enforceable contract." In response, plaintiff filed an answer to the counterclaim asserting an affirmative defense that "[t]he terms of the contract relating to Joseph . . . are unenforceable as [he] received no consideration in the form of compensation or otherwise . . . . " After the parties engaged in discovery and filed numerous motions, including plaintiff's first summary judgment motion that was denied, NRS filed a motion for summary judgment on March 16, 2018 as to its counterclaim. In support of its motion, NRS filed a statement of material facts and an affidavit 3 The CEPA claim was later dismissed with prejudice in response to NRS's Rule 4:6-2 motion. The order dismissing that claim is not under appeal. A-0944-18T2 9 from its human resource director stating that plaintiff was placed on NRS's payroll in November 2007 and received income from NRS from 2008 through 2015. Plaintiff opposed NRS's motion and filed a cross-motion for summary judgment. With her motion, plaintiff filed a response to NRS's statement of material facts and a certification provided from her as well as one from Joseph. In both certifications, plaintiff and Joseph gave their statement of material facts, that plaintiff was an employee of NRS with specific responsibilities, NRS fired plaintiff in retaliation for Joseph's actions, and that NRS was involved in illegal and fraudulent activities, which Joseph properly disclosed. In opposing NRS's motion and in support of her own motion, plaintiff argued: (1) There was a valid contract between the parties that NRS breached by suspending payments to plaintiff; (2) NRS did not argue that plaintiff, as compared to Joseph, breached the agreement or that plaintiff was terminated for any other reason; (3) Joseph did not violate the agreement by disclosing Francis's sexual activities because that information did not constitute confidential information under the agreement; (4) NRS's argument that Joseph's communications with government personnel about NRS's alleged illegal activity breached the agreement was against public policy; (5) plaintiff was entitled to A-0944-18T2 10 an adverse inference against NRS for failing to provide pertinent documents; (6) in the alternative, summary judgment should be denied as there were material factual issues in dispute; (7) plaintiff and Joseph did not breach the agreement as the agreement only prohibited Joseph from competing with NRS and disclosing information to NRS's competitors;4 (8) the liquidated damages provision of the agreement was unenforceable; and (9) NRS's unjust enrichment claim must be denied as plaintiff and Joseph did not willfully violate the agreement. After considering the parties' oral arguments, on April 27, 2018, the motion judge entered an order granting NRS's motion for summary judgment as to its breach of contract claim but denying its claims of unjust enrichment and for attorney's fees. In that same order the judge dismissed plaintiff's complaint with prejudice. The judge entered another order that day denying plaintiff's motion for summary judgment. On May 8, 2018, the judge issued a written decision setting forth his reasons. 4 In this argument, plaintiff claimed that the agreement was ambiguous as to "what financial or personal information [was] meant" in the agreement but stated that Joseph explained what the clauses meant in his certification. In Joseph 's certification, he stated that he was only prohibited from disclosing "information about rates and customers for [his] own benefit or competitors as [NRS] wanted to keep [him] from working for competitors and using [his] knowledge of NRS to benefit [him]self or to compete against NRS's competitors." A-0944-18T2 11 In his written decision, the judge stated, "the relevant provisions of the agreement at issue here [were] clear and unambiguous." The judge noted that he did not consider the validity of the non-compete or non-disclosure provisions as it was not contested, and plaintiff argued it was not applicable to this matter. As to defendant's claim that Joseph breached the agreement, the judge found that he clearly violated the agreement by disclosing personal information about Francis, i.e. his sexual endeavors, and financial information about NRS to "union members and third parties." As to defendant's unjust enrichment claim, the judge noted that the damage provision in the agreement was "clearly a liquidated damages provision" as there was no "fixed damage amount." The judge found that on its face, the liquidated damages provision was an "unenforceable penalty" because if plaintiff and Joseph breached the agreement when plaintiff turned sixty-seven years old, they would have been responsible for $2.5 million. Therefore, the judge denied summary judgment as to defendant's unjust enrichment claim. The judge did not make findings about attorney's fees or plaintiff's cross- motion for summary judgment. As to the latter, the judge only noted that "[p]laintiffs' cross-motion for summary judgment [was] denied in full." A-0944-18T2 12 NRS filed a motion for reconsideration as to the denial of attorney's fees. In opposition, plaintiff argued that contrary to NRS's contention, the judge denied fees as part of his rejection of NRS's unjust enrichment claim. Plaintiff also contended that an award of fees was unenforceable as liquidated da mages. On June 8, 2018, the judge granted the motion and stated that an award of attorney's fees stemming from defendant's breach of contract claim was warranted.5 In the order, the judge noted that "[t]he agreement clearly provide[d] for attorney['s] fees in the event of breach of the agreement." Thereafter, NRS's attorney filed a certification of services, seeking $489,102.48 in fees and costs. After retaining new counsel, plaintiff filed her opposition to NRS's application, arguing for the first time that "attorney's expenses" under the clear and unambiguous language of agreement did not include attorney's fees. (Emphasis added). On August 17, 2018, the judge awarded $371,977.48 in attorney's fees and costs. No findings were attached to the order or placed on the record. Plaintiff filed a motion to reconsider the June 8, 2018 and August 17, 2018 orders awarding attorney's fees. In her motion, plaintiff argued that portions of the agreement were unenforceable, and in the alternative, if there was a breach 5 Plaintiff has not appealed from this order. A-0944-18T2 13 of the contract, NRS was only entitled to attorney's expenses. On September 28, 2018, the judge denied this motion for reconsideration. The judge noted that he could not consider plaintiff's arguments that were raised for the first time on reconsideration, and he did not apply incorrect reasoning in granting summary judgment or in granting attorney's fees to NRS. This appeal followed. At the outset, we conclude that the issues raised by plaintiff on appeal relating to the validity of the agreement and her challenge to NRS's entitlement to attorney's fees, are procedurally barred from our consideration. The issues were not properly raised before the motion judge on summary judgment or were improperly raised for the first time on reconsideration or on appeal.6 We "will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest." Nieder v. Royal Indem. Ins., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959)). Neither of these exceptions apply to plaintiff's arguments. 6 In her reply brief to us, plaintiff confirms that she only raised these issues in her "Answer to [NRS'] Counterclaim, in discovery[], and again in [her] [m]otion for [r]econsideration." A-0944-18T2 14 Raising an argument for the first time on reconsideration does not constitute a proper presentation of an issue. A party is not permitted to use a motion for reconsideration as a basis for presenting new facts or arguments that could have been provided in opposition to the original motion. Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996). Plaintiff never explained why the issues were not raised in opposition to summary judgment. Moreover, the position taken by plaintiff on reconsideration and now on appeal contradicts her position on summary judgment where she contended the agreement was binding and valid, and she never asserted that the language of the agreement barred an award of attorney's fees. Under these circumstances, she is judicially estopped from relying on her new view of the agreement. While "judicial estoppel most often arises when a party takes inconsistent positions in different litigation, . . . it can be equally applicable where a litigant asserts inconsistent legal positions in different proceedings in the same litigation." Id. at 385. "[A] position has been 'successfully asserted' if it has helped form the basis of a judicial determination." Id. at 387-88 ("The judicial determination does not have to be in favor of the party making the assertion. If a court has based a final decision, even in part, on a party's assertion, that same party is thereafter precluded from asserting a contradictory position."). A-0944-18T2 15 Plaintiff's remaining argument relates to the motion judge's finding that Joseph breached the agreement. According to plaintiff, whatever Joseph did was not a violation of the agreement or could not be attributed to her. Applying our de novo standard of review, see R. 4:46-2(c); see also Lee v. Brown, 232 N.J. 114, 126 (2018), we conclude that plaintiff's contention in this regard is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by the motion judge. Turning to the motion judge's award of attorney's fees, we reach a different conclusion. As to that award, we are constrained to vacate the award and remand the matter back to the judge for a statement of reasons that explains how the fees and expenses were awarded under our well-settled guiding principles. See R. 4:42-9; Litton Indus., Inc. v. IMO Indus., Inc., 200 N.J. 372, 386-87 (2009); Rendine v. Pantzer, 141 N.J. 292, 316-20 (1995). Those principles include a requirement that once a court makes a determination as to the reasonableness and amount of an applicant's fees and costs, it must set forth its findings in an oral or written decision as required under Rule 1:7-4(a) to allow for meaningful appellate review. See City of Englewood v. Exxon Mobile Corp., 406 N.J. Super. 110, 123-26 (App. Div. 2009); S.N. Golden Estates, Inc. v. Cont'l Cas. Co., 317 N.J. Super. 82, 91 (App. Div. 1998). A-0944-18T2 16 Affirmed in part; vacated and remanded in part for further proceedings consistent with our opinion. We do not retain jurisdiction. A-0944-18T2 17

01-03-2023

06-04-2020

https://www.courtlistener.com/api/rest/v3/opinions/4538768/

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0858-18T2 JSTAR, LLC, Plaintiff-Appellant, v. BRICK TOWNSHIP ZONING BOARD OF ADJUSTMENT, and RTS IV, LLC, a/k/a JOSEPH R. PRESTIFILIPPO, JR., Defendants-Respondents. _____________________________ Submitted March 23, 2020 – Decided June 4, 2020 Before Judges Rothstadt, Moynihan and Mitterhoff. On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-0389-18. R.C. Shea & Associates, PC, attorneys for appellant (Robert C. Shea, of counsel and on the briefs; Dina M. Vicari and Robert C. Shea II, on the briefs). Weiner Law Group LLP, attorneys for respondent Brick Township Zoning Board of Adjustment (Ronald D. Cucchiaro, of counsel and on the brief; Richard Brigliadoro, on the brief). King Kitrick Jackson McWeeney & Wells, LLC, attorneys for respondent RTS IV, LLC (John J. Jackson, III, of counsel and on the brief; Jilian L. McLeer, on the brief). PER CURIAM Defendant RTS IV, LLC (RTS) sought preliminary and final major subdivision approval, design waivers and variance relief from defendant Brick Township Zoning Board of Adjustment (Board) (collectively defendants) to permit construction of single-family homes and ancillary improvements. The owner of an adjacent property, plaintiff JSTAR, LLC, objected and, prior to the completion of Board action on the application, filed a complaint in lieu of prerogative writs alleging the Board's violations of the Open Public Meetings Act (OPMA), N.J.S.A. 10:4-1 to -21, rendered any Board action in 2018 void.1 Plaintiff appeals from the trial court's orders granting defendants' motions for summary judgment, dismissing plaintiff's complaint with prejudice, and denying plaintiff's cross-motion for summary judgment and, similarly, dismissing its complaint with prejudice. 1 Although the complaint also alleged the Board violated the Municipal Land Use Law, N.J.S.A. 40:55D-1 to -163, plaintiff's appellate argument is limited to the alleged OPMA violations. A-0858-18T2 2 Plaintiff's present arguments center on the Board's failure to publish adequate notice of its January 3, 2018 reorganization meeting and its January 17, 2018 regular meeting. In its merits brief, plaintiff contends: POINT ONE THERE IS NO QUESTION OF MATERIAL FACT THAT OPMA HAS BEEN VIOLATED, THEREFORE, [PLAINTIFF'S] COMPLAINT SHOULD NOT HAVE BEEN DISMISSED AND THE RELIEFS OUTLINED IN [PLAINTIFF'S] COMPLAINT SHOULD HAVE BEEN GRANTED BY THE TRIAL COURT. A. [PLAINTIFF'S] COMPLAINT RELIEF REQUESTING THAT ALL BOARD DETERMINATIONS AND ACTIONS TAKEN AT THE REORGANIZATION, JANUARY 17TH REGULAR MEETING AND THE JANUARY 31ST SPECIAL MEETING, BE VOIDED DUE TO OPMA VIOLATIONS, SHOULD HAVE BEEN GRANTED BY THE TRIAL COURT. B. [PLAINTIFF'S] COMPLAINT RELIEF REQUESTING TO VOID THE BOARD'S DETERMINATION TO SCHEDULE THE JANUARY 31ST SPECIAL MEETING TO HEAR . . . RTS['S] APPLICATION SHOULD HAVE BEEN GRANTED BY THE TRIAL COURT. C. [PLAINTIFF'S] COMPLAINT RELIEF REQUESTING REVERSAL OF THE BOARD'S ACTION TO ACCEPT THE BOARD A-0858-18T2 3 ATTORNEY'S DETERMINATION THAT THE STRICT INTENT OF THE OPMA WAS MERELY "SUBSTANTIALLY COMPLIED", WHEREIN . . . RTS['S] APPLICATION SHOULD HAVE BEEN STOPPED AND REQUIRED TO RE-START, SHOULD HAVE BEEN GRANTED BY THE TRIAL COURT. D. [PLAINTIFF'S] COMPLAINT RELIEF REQUESTING THE BOARD TO TAKE REMEDIAL AND CURATIVE MEASURES TO COMPLY WITH THE PROCEDURAL REQUIREMENTS OF THE OPMA, FOR THE REORGANIZATION, JANUARY 17TH REGULAR AND JANUARY 21ST SPECIAL MEETINGS, SHOULD HAVE BEEN GRANTED BY THE TRIAL COURT. E. [PLAINTIFF'S] COMPLAINT REQUESTING THAT THE BOARD BE PROHIBITED FROM CONDUCTING ANY FUR[TH]ER MEETINGS FOR . . . RTS['S] APPLICATION INCLUDING BUT NOT LIMITED TO FEBRUARY 20, 2018, SHOULD HAVE BEEN GRANTED BY THE TRIAL COURT. F. [PLAINTIFF'S] COMPLAINT RELIEF REQUESTING THAT ALL TESTIMONY AND EXHIBITS PRESENTED BEFORE THE BOARD AND DETERMINATIONS MADE BY THE BOARD ON . . . RTS['S] APPLICATION ARE DEEMED NULL AND VOID AND RTS MUST RE-START ITS APPLICATION BEFORE THE BOARD, SHOULD HAVE BEEN GRANTED BY THE TRIAL COURT. A-0858-18T2 4 POINT TWO THE TRIAL COURT IGNORED THE UNDISPUTED FACTS AND IMPROPERLY CONCLUDED THAT THE BOARD PROPERLY COMPLETED THE PROCESS OF RATIFICATION TO RECTIFY THE OPMA VIOLATIONS. POINT THREE THE TRIAL COURT'S DECISION IMPROPERLY STATED THE FACTS OF THE CASE, REFUSED TO FOLLOW APPLICABLE LEGAL STANDARDS AND LONGSTANDING CASE LAW AND ADDRESS ALL LEGAL ISSUES RAISED BY [PLAINTIFF]. POINT FOUR THE STANDARD OF REVIEW OF SUMMARY JUDGMENT MOTIONS PERMITS THIS APPELLATE COURT TO REVERSE THE DETERMINATIONS OF THE TRIAL COURT. We agree the Board's multiple failures to comply with the OPMA require reversal of the trial court's orders and remand to the Board for proceedings consistent with this decision. The Board conducted its reorganization meeting on January 3, 2018, at which it adopted a revised 2018 annual meeting schedule and appointed the Board chairman, vice chairman, secretary, attorney, engineer, court reporter and conflict planner. RTS's application was not considered at the meeting. A-0858-18T2 5 At the January 17, 2018 regular meeting, the Board chairman announced RTS's application would not be heard because the meeting was not properly noticed, and would be carried to a special meeting on January 31, 2018. 2 At the January 31 meeting, plaintiff's counsel challenged the Board's jurisdiction. Specifically, he noted the earlier January meetings were not included in the 2017 annual meeting schedule that was published only in the Asbury Park Press (The Press). He also observed that notice of those early- January meetings appeared only in the annual meeting schedule published in a January 18, 2018 edition of The Press—after the meetings were held. Though counsel conceded proper notice was provided for the January 31 meeting, he argued to the Board that its failure to comply with the OPMA provisions regarding newspaper notice of the two earlier meetings in January rendered any actions at those meetings as well as the January 31 meeting voidable. The Board's counsel agreed that the annual meeting schedule that included the early-January meetings was published on January 18, only in The Press. However, because notices of both those meetings were posted on the bulletin board at the Board's meeting place and on the internet, and was sent by emai l to 2 Plaintiff failed to provide a transcript of the January 17, 2018 meeting. A-0858-18T2 6 The Press on January 12, he opined the Board "did meet the requirement for adequate notice [under the OPMA], except for [the requirement that notice be mailed to] the two newspapers." He commented those steps constituted "substantial compliance" with the OPMA, and invalidation of the Board's actions was not warranted. Plaintiff filed its complaint in the instant matter on February 16, 2018. The Board published notice of a February 21, 2018 special meeting 3 in The Press and The Ocean Star; the notice stated the Board was going to readopt its 2018 meeting dates. A transcript of that meeting was not provided in the appeal record. In its merits brief, however, plaintiff admits the Board readopted its 2018 annual meeting schedule; the record reflects the schedule was published on February 27, 2018, 4 only in The Press. The Board, in its merits brief, avers RTS's application was not heard at that meeting. The record contains only partial transcripts of the Board's August 15, 2018 and September 5, 2018 regular meetings. The August 15 transcript reflects the ostensible readoption of the Board's "appointment of officers and professionals 3 We note a February 21, 2018 regular meeting appears in the annual meeting schedule published on January 18, 2018. 4 The merits brief mistakenly lists the date as February 27, 2017. A-0858-18T2 7 to 2018[.]" The September 5 transcript reflects the Board's approval of "resolutions to reappoint [its] attorney and . . . professionals," including the reappointment of the Board's engineer, planner, court reporter, and the reappointment of the Board chairman, vice chairman and secretary. The record reflects notice of both the August 15 and September 5 meetings were published in only one newspaper. We review the trial court's summary judgment decision de novo, applying the same legal standard as the trial court. Wakefern Food Corp. v. Liberty Mut. Fire Ins. Co., 406 N.J. Super. 524, 538 (App. Div. 2009). Thus, we consider "whether the evidence presents a sufficient disagreement to require submission to a jury [or trier of fact] or whether it is so one-sided that one party must prevail as a matter of law." Liberty Surplus Ins. Corp. v. Nowell Amoroso P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)). If there is no genuine issue of material fact, we decide "whether the trial court correctly interpreted the law." Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007). "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). A-0858-18T2 8 Notwithstanding the trial court's finding that the Board rectified its failure to include the January 3 and January 17, 2018 regular meetings in the annual meeting schedule by publishing same "later on in the month" in both The Press and The Ocean Star, the appellate record reveals that the annual meeting schedule published on January 18, 2018, was published only in The Press. Even when the schedule was readopted in February 2018, it was again published only in The Press. N.J.S.A. 10:4-18 requires that a public body, such as the Board, mail the annual meeting notice to at least two newspapers designated by the public body pursuant to N.J.S.A. 10:4-8(d)(2).5 We see no proof that the annual meeting notice was mailed to The Ocean Star. Thus, there was no advance notice of the January 3 and January 17, 2018 meetings. Absent notice under N.J.S.A. 10:4-18, a public body must give "adequate notice" of a meeting in compliance with N.J.S.A. 10:4-8(d), which provides in pertinent part: "'Adequate notice' means written advance notice of at least 5 The statute also requires the public body to "post and maintain posted" the annual meeting notice throughout the year in a public place reserved for such or similar announcements, N.J.S.A. 10:4-18 and N.J.S.A. 10:4-8(d)(1), and submit it to the municipal clerk, county clerk and the New Jersey Secretary of State as dictated by N.J.S.A. 10:4-8(d)(3). The mandated posting, mailing and submission must be done "at least once each year, within [seven] days following the annual organization or reorganization meeting" or by January 10 if no such a meeting is held. N.J.S.A. 10:4-18. A-0858-18T2 9 [forty-eight] hours, giving the time, date, location and, to the extent known, the agenda of any regular, special or rescheduled meeting, which notice shall accurately state whether formal action may or may not be taken[.]" Notice must be posted in the same manner as required for the annual meeting schedule. N.J.S.A. 10:4-8(d)(1). It must also be "mailed, telephoned, telegrammed, or hand delivered to at least two newspapers" designated in the same manner as those to which an annual meeting notice is to be mailed. N.J.S.A. 10:4-8(d)(2). And, it must be submitted in the same manner as the annual meeting notice with the clerks and Secretary of State. N.J.S.A. 10:4-8(d)(3). The procedures required by the OPMA are meant to advance the Legislature's declared purpose to ensure the right of the public to be present at all meetings of public bodies, and to witness in full detail all phases of the deliberation, policy formulation, and decision making of public bodies, is vital to the enhancement and proper functioning of the democratic process; [to prevent] that secrecy in public affairs [that] undermines the faith of the public in government and the public’s effectiveness in fulfilling its role in a democratic society, and . . . to insure the right of its citizens to have adequate advance notice of and the right to attend all meetings of public bodies at which any business affecting the public is discussed or acted upon in any way[.] A-0858-18T2 10 [N.J.S.A. 10:4-7; see Times of Trenton Publ'g Corp. v. Lafayette Yard Cmty. Dev. Corp., 183 N.J. 519, 529 (2005).] It is undisputed that the Board failed to provide prior notice of its January 3 and January 17, 2018 meetings, and that, inexplicably, notice of all its regular meetings on the annual meeting schedule was mailed only to The Press, not to the second required newspaper. Both the Board's failure to comply with the OPMA's requirements regarding its early January meetings and its flawed attempt to remedy its initial failures cannot be countenanced. As plaintiff clearly explained to the Board at the January 31 meeting, notice of meetings must be mailed to two newspapers. The law mandates the Board's actions be declared void. The Board's actions at any non-conforming meeting are voidable by a trial court presiding at a prerogative writs hearing. N.J.S.A. 10:4-15(a). A board, however, "may take corrective or remedial action by acting de novo at a public meeting held in conformity with [the OPMA] . . . regarding any action which may otherwise be voidable[.]" Ibid. Before her elevation to our Supreme Court, then Judge Long, recognized: Willful violations of the Act require swift and strong remediation. However, invalidation of public action is an extreme remedy which should be reserved for violations of the basic purposes underlying the Act. A-0858-18T2 11 Polillo v. Deane, 74 N.J. 562 (1977), expressly permits discretion in the fashioning of remedies for technical violations of the Act which do not result from bad faith motives and which do not undermine the fundamental purposes of the [OPMA]. [Liebeskind v. Mayor and Mun. Council of Bayonne, 265 N.J. Super. 389, 394-95 (App. Div. 1993) (citation omitted).] In Polillo, much like this case, the public body's meetings, "[a]lthough . . . publicized in some form by local newspapers," were either not noticed or improperly noticed. 74 N.J. at 567. The public body conceded "the vast majority of their meetings technically violated the" OPMA. Id. at 577. The Court decried the public body's attempt to rectify its OPMA failures by taking formal votes at two meetings which complied with OPMA because such practice would undermine the OPMA's purpose, allowing an agency to close its doors when conducting negotiations or hammering out policies, and then to put on an appearance of open government by allowing the public to witness the proceedings at which its action is formally adopted. Such an interpretation of the statute would conflict with N.J.S.A. 10:4-15(a) which provides that "a public body may take corrective or remedial action by acting de novo at a public meeting held in conformity with this act." [Id. at 578 (emphasis omitted).] A-0858-18T2 12 The Court, however, did "not find it necessary, in fashioning a remedial solution, to invalidate and repudiate all other public meetings, particularly those hearings at which testimony and evidence were received." Id. at 580. The Court found the remedial provisions of N.J.S.A. 10:4-15(a) and the court's authority to "issue such orders and provide such remedies as shall be necessary to insure compliance with the provisions of the" OPMA, N.J.S.A. 10:4-16, contemplate maximum flexibility in rectifying governmental action which falls short of the standards of openness prescribed for the conduct of official business. Consistent with the breadth and elasticity of relief provided in the legislative scheme, it is entirely proper to consider the nature, quality and effect of the noncompliance of the particular offending governmental body in fashioning the corrective measures which must be taken to conform with the statute. Thus, in this context, the "substantial compliance" argument of defendants carries some weight on the question of remedy and relief. [Id. at 579.] Thus, contrary to the opinion the Board's attorney expressed at the January 31, 2108 meeting, substantial compliance with the OPMA does not, itself, justify deviations from the notice requirements. It is, as the trial court recognized, but one of the factors comprising the prism through which we view the Board's actions. A-0858-18T2 13 We first note the trial court's cogent finding that "plaintiff is not pursuing claims against other defendants" whose matters were heard at the contested hearings; only RTS's matter is in issue. We are also convinced the Board's violations were technical ones, related to the newspaper-notice requirement of the OPMA; it complied with the posting and submission requirements of N.J.S.A. 10:4-8(d)(1) and N.J.S.A. 10:4-8(d)(3). As the trial court observed, "plaintiff has been able to participate, enter its objections and otherwise have its interest protected in connection with the matter in which the Board conducted itself," and has not been excluded from participation in any Board meeting at which the RTS application was considered. The record before us does not contain evidence that the substantive issues of RTS's application were acted upon; we see only that the procedural issues here considered were raised at the January 31, 2018 meeting. The trial court stated RTS's "application is still pending before the Board and has not been resolved[.]" Plaintiff has not submitted any argument other than the procedural ones. The Board's remedial actions appear to have been good-faith attempts to rectify the mistakes made at the early January meetings. Its readoption of the meeting schedule and the appointments were de novo actions. Unfortunately, although notice of the February meeting at which the annual meeting schedule A-0858-18T2 14 was readopted was proper, the Board never mailed the schedule to two newspapers. The schedule was twice published in The Press, but it was never sent to The Ocean Star. Hence, any regular meeting on that schedule was never properly noticed. The remedial action of readopting the Board's appointments that took place at the August and September meetings, therefore, did not take place "at a public meeting held in conformity with [the OPMA]," as required by N.J.S.A. 10:4-15(a). The Board's corrective actions did not satisfy the OPMA's purposes or cure the notice-defect. We fully comprehend not every violation of the OPMA requires reversal of the body's actions at an inadequately noticed meeting. Polillo, 74 N.J. at 579. But we cannot approve the Board's initial failure to comply with the OPMA with regard to its early- January meetings, and its subsequent compliance failures in attempting to remediate those failures. Contrary to plaintiff's argument that RTS's application must be heard anew, we need not repudiate all of the Board's actions. The Polillo Court allowed the public body to "utilize so much of the testimony and evidence which it acquired in the course of its original effort as it deem[ed ] necessary and appropriate." Id. at 580. As in Polillo, any decision in that regard must be arrived at in a manner in strict conformity with the [OPMA] so that A-0858-18T2 15 the public may be fully apprised by adequate notice and a publicized agenda exactly what prior meetings and what aspects of the existing [Board] record are sought to be so utilized. [Ibid.] Again, the record does not reflect that the Board heard testimony relating to RTS's application, but if there were proceedings undisclosed to us, we do n ot foreclose the Board from considering those proceedings if it adheres to the precepts set forth herein. We "weigh[] the nature, quality and effect of the noncompliance in this case against the potential disruption of the orderly process of government, as well as the rights" of those in attendance at the procedurally-defective meetings. Aronowitz v. Planning Bd. of Twp. of Lakewood, 257 N.J. Super. 347, 359-60 (Law Div. 1992). In view of plaintiff's presence at all meetings at which RTS's application was considered, and in that the Board has not reached a final decision on that application, we follow the Polillo Court's guidance and direct the trial court to remand this matter to the Board to first conduct further proceedings on RTS's application at a properly noticed meeting after it remedies its prior notice failures by conducting de novo proceedings—again, at a properly noticed meeting—at which it shall readopt its appointments. In our judgment, the annual meeting notice was readopted de novo at the properly noticed February meeting. A-0858-18T2 16 As such, the Board need only timely mail the annual meeting schedule to two newspapers in advance of the meetings set forth therein; thereafter, any meeting set forth in the schedule would comply with the requirements of N.J.S.A. 10:4- 18. Of course, any meeting may alternatively be noticed under N.J.S.A. 10:4- 8(d). Such a course will ensure the Board does not skirt the legislative requirements of the OPMA, and that the Board's previous actions are not entirely scotched. We determine any remaining argument not here considered to be without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). We briefly comment that the Board, in addressing the last proviso clause of N.J.S.A. 10:4-15(a),6 reviewed some decisional law but did not advance how the clause applies to these circumstances. As such, we will not consider plaintiff's undeveloped argument. Chase Bank USA, N.A. v. Staffenberg, 419 N.J. Super. 386, 413 n.17 (App. Div. 2011). 6 In pertinent part, the statute provides: "[A]ny action for which advance published notice of at least [forty-eight] hours is provided as required by law shall not be voidable solely for failure to conform with any notice required in this act." N.J.S.A. 10:4-15(a). A-0858-18T2 17 The trial court's orders granting defendants' motions for summary judgment and dismissing plaintiff's complaint with prejudice, and denying plaintiff's cross-motion for summary judgment are reversed, and this matter is remanded to the trial court for an entry of an order remanding the matter to the Board for proceedings consistent with this decision. We do not retain jurisdiction. A-0858-18T2 18

01-03-2023

06-04-2020

https://www.courtlistener.com/api/rest/v3/opinions/2892627/

NO. 07-04-0039-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C MARCH 16, 2005 ______________________________ FIRST UNITED BANK, DIMMITT, TEXAS, SUCCESSOR TO SHADOW HILLS NATIONAL BANK, APPELLANT V. PANHANDLE PACKING AND GASKET, INC., INDIVIDUALLY AND D/B/A ARROW BEARINGS AND INDUSTRIAL SUPPLY AND NAMMCO FABRICATION AND LUBBOCK GASKET AND SUPPLY; AND LONE STAR GASKET AND SUPPLY, INC., APPELLEES _________________________________ FROM THE 72 ND DISTRICT COURT OF LUBBOCK COUNTY; NO. 2001-513,275; HONORABLE J. BLAIR CHERRY, JUDGE _______________________________ Before JOHNSON, C.J., and QUINN and REAVIS, JJ. OPINION First United Bank appeals the judgment of the trial court following a jury trial that Panhandle Packing and Gasket, Inc., (footnote: 1) have and recover $294,974.13, plus prejudgment interest and that Panhandle Packing and Gasket, Inc., individually and d/b/a Arrow Bearings and Industrial Supply, Nammco Fabrication, Lubbock Gasket and Supply and Lone Star Gasket and Supply, Inc. recover attorney’s fees in the amount of $45,000 and $10,000 and $7,000, respectively, for appeals to the Court of Appeals and the Supreme Court of Texas.  Presenting six issues, First United contends (1) it was not liable to its corporate depositor for breach of contract by cashing checks payable to the depositor and endorsed in blank by the depositor’s bookkeeper, (2) it was not liable to its corporate depositor for conversion by cashing checks payable to the depositor and endorsed in blank by the depositor’s bookkeeper, (3) it was not liable to its corporate depositor for negligence in cashing 476 checks endorsed in blank by the corporate bookkeeper over an eight-year period, (4) the trial court erred in submitting the question of damages in one broad-form question because the appropriate statutes of limitation and the award of attorney’s fees applicable to the three theories of liability cannot be determined, (5) the trial court erred in admitting evidence by an expert witness because his testimony was based on an unreliable foundation, and (6) the trial court erred in denying it dollar-for-dollar credit of the amount the depositor was paid by the bookkeeper per court-ordered restitution.  We reverse and render in part and reverse and remand in part. Panhandle Packing is a Texas corporation doing business as Arrow Bearings and Industrial Supply, Nammco Fabrication, and Lubbock Gasket and Supply.  Also, Lubbock Gasket and Supply is the owner of all the stock of Lone Star, a corporation.  The  corporations are affiliated and have common stock ownership, but Lubbock Gasket acts as the parent corporation. (footnote: 2)  At all times material here, Betty Kimbrell worked for Panhandle Packing as bookkeeper for the firms that maintained business deposit accounts.  By its live  pleading, among other matters, Panhandle Packing alleged: As a normal part of its financial business, Lubbock Gasket would pay and advance funds to the Internal Revenue Service and other governmental taxing entities on behalf of itself and its other subsidiaries or divisions to pay taxes and other items owed based on the payroll of employees.  In turn, each of these subsidiaries or divisions would write a check payable to Lubbock Gasket, drawn on the respective subsidiary’s or division’s own bank account at First United and sometimes at other financial institutions.  The checks would be made out to Lubbock Gasket for deposit in Lubbock Gasket’s account as reimbursement for the taxes paid. The reimbursement transaction was primarily handled by one of Lubbock Gasket’s employees, Betty Kimbrell.  Unknown to Plaintiffs, Betty Kimbrell would take the reimbursement checks to First United and instead of depositing the checks at First United and into the account of Lubbock Gasket, as she was instructed to do, Betty Kimbrell would obtain cash from the tellers at First United and then use that cash to her own benefit.   Since 1993, First United allowed Betty Kimbrell to cash checks made payable to Lubbock Gasket and endorsed by Lubbock Gasket.  As a result of . . . and due to the actions of First United, Plaintiffs have sustained damages in the amount of $676,776.09. The foregoing allegations were not pled in the alternative; thus, they constitute judicial admissions and were conclusively established in the case without the introduction of the pleadings or presentation of other evidence.   See Houston First American Sav. v. Musick, 650 S.W.2d 764, 767 (Tex. 1983).  The endorsement on the checks did not contain any restriction, i.e. , “for deposit only” or otherwise.   Panhandle Packing did business under its own name and under the three assumed names.  The embezzlement was not detected by Panhandle Packing, but was discovered when First United made inquiry about the authority of a maker on a check in 2000.  A review of the records disclosed that beginning in 1993 and continuing until June 2000, the bookkeeper endorsed approximately 476 checks in blank and kept the cash proceeds totaling $676,776.09. Seeking to recover its losses caused by the bookkeeper’s embezzlement, Panhandle Packing filed suit against First United alleging breach of contract, conversion, violations of section 4.401 of the Texas Business and Commerce Code, and negligence.  In addition to its general and specific denial that Panhandle Packing had not complied with all conditions precedent, First United pled the affirmative defenses of estoppel, the deposit agreement and corporate resolution, failure to satisfy conditions precedent, negligence of Panhandle Packing, comparative negligence, laches, good faith payment, payment, and multiple statutes of limitation. (footnote: 3)  Answering the 14 questions submitted, the jury found: ∙ the bookkeeper did not have authority to endorse the checks without restriction; ∙ First United sent a statement of accounts showing payment of items for the accounts from January 1993 through June 2000; ∙ Panhandle Packing gave First United notice that the endorsements in blank were unauthorized in June 2000; ∙ First United failed to comply with the deposit agreement, ∙ First United’s failure to comply with the agreement was not excused; ∙ the negligence of First United and Panhandle Packing was a proximate cause of the occurrence; ∙ the jury allocated 49% negligence to First United and 51% to Panhandle Packing; ∙ First United failed to exercise good faith in paying cash to the bookkeeper; ∙ the bookkeeper was Panhandle Packing’s agent; ∙ First United converted Panhandle Packing’s property; ∙ First United wrongfully exercised dominion over Panhandle Packing’s property; ∙ $294,974.13 compensates Panhandle Packing for damages resulting from First United’s failure to comply, its negligence, or conversion; and ∙ $45,000 attorney’s fees for the trial court, but none for appeals. First United suggests that the question for our review is whether a loss resulting from embezzlement by an employee of a bank customer should be borne by the employer or the bank.  Because an appeals court should not decide a case on a theory different from that on which it was pled and tried, we will consider the issue in the context of the theory on which the case was tried in the trial court and on issues that were preserved and presented  for our review.  American Mut. Liability Ins. v. Parker, 144 Tex. 453, 191 S.W.2d 844, 848 (1945); El Paso Environ. Systems v. Filtronics, 609 S.W.2d 810, 813 (Tex.Civ.App.--El Paso 1980, writ ref’d n.r.e.).  Since  issues one, two, and three present no evidence challenges before we commence our analysis, we first identify the appropriate standard of review when, as here, First United did not have the burden of proof at trial.   Standard of Review In reviewing a no evidence contention, we consider only the evidence that tends to support the findings and disregard all evidence to the contrary.  Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965); Stedman v. Georgetown S. & L. Ass'n, 595 S.W.2d 486, 488 (Tex. 1979).  When evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, such evidence is in legal effect no evidence and will not support a judgment.  Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752, 755 (Tex. 1970).  We consider only the evidence and inferences which can be drawn therefrom in the light most favorable to the jury's findings and disregard all contrary evidence and inferences.  Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex. 1993); Williams v. Gaines, 943 S.W.2d 185, 190  (Tex.App.--Amarillo 1997, writ denied). In addition, the trial court instructed the jury as follows: A fact may be established by direct evidence or by circumstantial evidence or both.  A fact is established by direct evidence when proved by documentary evidence or by witnesses who saw the act done or hear the words spoken.  A fact is established by circumstantial evidence when it may be fairly and reasonably inferred from other facts proved.   The mere fact that an incident happened, standing alone, does not permit the jury to draw the inference that the incident was caused by anyone’s negligence. Citing Dow Chemical Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001), First United contends that if its evidentiary challenges are sustained, we should proceed to examine the record to determine if the contrary proposition is established as a matter of law.  However, the rule discussed in Dow Chemical does not apply here because First United did not have the burden of proof on the issues we will discuss. Conversion Addressing First United’s issues in a logical rather than sequential order, we begin with issue two, by which it contends the evidence conclusively established it did not convert any instrument or engage in common law conversion as a matter of law.  As suggested by its argument and presented by its motion for directed verdict, objections at the charge conference, and motion for judgment notwithstanding the verdict, we consider the issue as a no evidence challenge to the jury’s answers to questions 11 and 12 by which it found that First United converted the checks.   See Hedley Feedlot, Inc. v. Weatherly Trust, 855 S.W.2d 826, 836 (Tex.App.--Amarillo 1993, writ denied).  Because both parties are corporations, we first focus on the following instruction given by the trial court: [w]hen a corporation is involved, of course, it may act only through natural persons as its agents or employees; and, in general, any agent or employee of a corporation may bind the corporation by his acts and declarations made while acting within the scope of his authority delegated to him by the corporation, or within the scope of his duties as an employee of the corporation. Panhandle Packing does not challenge the jury’s finding to question 10 that the bookkeeper was Panhandle Packing’s agent.  Additionally, Panhandle Packing acknowledges the bookkeeper’s agency status in its brief.  Because it is undisputed that First United paid the face amount of the checks to the bookkeeper as agent upon her presentment, the law of principal and agent is applicable.  In Shaw v. Kennedy, Ltd., 879 S.W.2d 240, 245 (Tex.App.--Amarillo 1994, no writ), we recognized the rule that what a principal does through an agent, he does himself.  In Pfluger v. Colquitt, 620 S.W.2d 739, 743 (Tex.Civ.App.--Dallas 1981, writ ref’d n.r.e.), a conversion case, the court held that where the jury found that a third party was acting as the seller’s agent, “the transaction had the same effect as if Pfluger had dealt personally with Colquitt because one who acts through a duly authorized agent is bound as if he had acted in person.   See also Cash v. Lebowitz, 734 S.W.2d 396, 399 (Tex.App.--Dallas 1987, writ ref’d  n.r.e.) (holding that payment to an agent had the same effect as payment directly to the principal and the agent’s subsequent conversion of the money did not defeat the rights of the person making payment). These decisions conform to the court’s instruction regarding corporate agents. In the context of the definitions of conversion in question 11, (footnote: 4) according to the judicial admissions, the bookkeeper was the person charged with the task of preparing checks and conducting necessary banking business to accomplish reimbursement to Lubbock Gasket and when checks were presented to First United, they were  “endorsed by Lubbock Gasket.”  By question 12, the jury was asked whether First United wrongfully assumed and exercised dominion over Panhandle Packing’s property.  Applying the appropriate standard of review to the evidence which includes the judicial admission that the checks were “endorsed by Lubbock Gasket,” we conclude there is no evidence to show the checks were paid on unauthorized endorsements or that payment was made  to a person not entitled to endorse the instruments.  Regarding question 12, we conclude there is no evidence to support the jury’s findings that First United wrongfully assumed and exercised dominion over the checks.  Issue two is sustained. Contract   By its first issue, First United contends the bookkeeper had authority to endorse the checks and it had no contractual liability as a matter of law.  As suggested by the argument, we also consider this a no evidence challenge to the jury’s answers to questions 1, 5, and 9, by which it found the bookkeeper did not have authority to endorse the checks as she did, First United failed to comply with its agreements with Panhandle Packing, and First United failed to exercise good faith in cashing the checks.   Authority of Bookkeeper.   (Question 1).   Among other things, the chief financial officer, and also director, officer, and principal shareholder of Panhandle Packing testified regarding the bookkeeper’s authority to endorse checks without any restrictive endorsement.  According to his testimony, when he discovered that the bookkeeper was endorsing checks without any restrictive provision, he instructed her to discontinue the practice.  Considering this evidence in the light most favorable to the jury’s finding and disregarding all evidence to the contrary, it constitutes some evidence of the absence of authority to endorse the checks without a restrictive endorsement, i.e. , “for deposit only.” Good Faith.   (Questions 5 and 9).  By its answer to question 5, the jury found that First United failed to comply with the deposit agreement.  As part of question 5, the jury was instructed as follows: Every agreement between the parties or duty arising out of the agreement imposes an obligation of good faith in its performance or enforcement. For checks presented . . . prior to January 1, 1996, “good faith” means honesty in fact in the conduct or transaction concerned. For checks presented . . . after January 1, 1996, “good faith” means honesty in fact and the observance of reasonable commercial standards of fair dealing. By its answer to question 9, which included similar instructions, the jury found that First United failed to exercise good faith in paying cash to the bookkeeper.  Among other evidence, Panhandle Packing introduced First United’s multi-page document entitled “Teller Performance Standards” which was admitted after counsel announced he had no objection.  An employee of First United testified to the performance standards and described her training. She and another employee testified that the practice of paying cash to the bookkeeper was contrary to the standards.   In  Riley v. First State Bank, 469 S.W.2d 813, 816 (Tex.Civ.App.–Amarillo 1971, writ ref’d n.r.e.), we held that the test of good faith is not diligence or negligence.  Similar issues were considered in Texas Stadium Corporation v. Savings of America, 933 S.W.2d 616 (Tex.App.--Dallas 1996, writ denied).  In affirming a summary judgment, the court concluded that the fact that some of the bank employees had acknowledged that endorsements on the checks did not comply with internal policies did not, standing alone, raise a fact issue on good faith.   Id . at 619-20.  However, according to the summary judgment evidence, the bank employees had no knowledge of the embezzlement.  In addition, the court held that even though acceptance of the checks may have constituted negligence, any negligence did not constitute bad faith and concluded the bank acted in good faith unless it had knowledge of the embezzlement.  Here, however, First United announced it had no objection to admission of the teller performance standards into evidence and did not request a limiting instruction.  Accordingly, the standards were before the jury for all purposes.  Tex. R. Evid. 105(a); Birchfield v. Texarkana Memorial Hosp., 747 S.W.2d 361, 365 (Tex. 1987); See also Cigna Ins. Co. of Texas v. Evans, 847 S.W.2d 417, 421 (Tex.App.--Texarkanna 1993, no writ) (holding that in the absence of any directive to the fact finder to consider a piece of evidence only for a limited purpose, it may consider it for any and all purposes.)  Notwithstanding Riley and Texas Stadium , because First United did not request that the teller performance standards be admitted for a limited purpose or that an appropriate instruction be given to the jury, the evidence was before the jury for all purposes.  Based on this record, we conclude the teller performance standards and the testimony of the bank employees constituted some evidence of the absence of good faith.  Issue one is overruled. Global Damage Question   By its fourth issue, First United contends the faulty submission of the global damage question prevented it from asserting its defenses that, alternatively, deny recovery to Panhandle Packing as a matter of law.   We agree.   By question 13, the jury was asked: [w]hat sum of money, if now paid in cash, would fairly and reasonably compensate Panhandle Packing and Gasket, Inc., for its damages, if any, that resulted from either First United Bank’s failure to comply with the Deposit Agreement, if any, First United Bank’s negligence, if any, or First United Bank’s conversion, if any. Do not add any amount for interest, if damages, if any. Answer in dollars and cents, if any. Answer: $          294,974.13        At the charge conference, counsel for First United objected as follows: it is an improper submission as to global damages as to each cause of action; there is no evidence, or there is insufficient evidence and an inability for the jury to determine the amount of damages for each claim separately; and each cause of action should have its own damage claim. After overruling the objections, the court submitted the charge to the jury. In Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 388-89 (Tex. 2000), the Court disapproved of the global damage issue which submitted multiple theories of recovery.  After discussing a single broad-form damage question which commingled invalid theories of liability with valid theories, the Court held the error was harmful because it could not be determined whether the improperly submitted theories formed the sole basis for the jury’s finding. Here, having held there was no evidence to support the submission of the  conversion ground, the rule announced in Crown Life is controlling.   See also Iron Mt. Bison Ranch v. Easley Trailer Mfg., 42 S.W.3d 149, 156 (Tex.App.--Amarillo 2000, no pet).  Moreover, the prejudice and harm resulting from submission of multiple theories in one question is magnified because application of the statute of limitations to a given factual situation is a question of law, See Musgrave v. Brookhaven Lake Owners, 990 S.W.2d 386, 397 (Tex.App.--Texarkana 1999, pet. denied).  The applicable statutes of limitation to the  three distinct theories of recovery cannot be determined.   Although First United pled various statutes of limitation, because of the global submission of multiple theories, the court was unable to apply the appropriate limitations statute. (footnote: 5)  Issue four is sustained. Negligence   By it’s third issue, First United contends the evidence established it was not negligent in cashing the checks.  By its answer to question 8, the jury found Panhandle Packing 51 percent negligent.  Accordingly, it may not recover damages if its percentage of responsibility is more than 50 percent.  Tex. Bus. & Com. Code Ann. §§ 33.001 & 33.002(a) (Vernon 2002).  Further, by its motion for judgment, Panhandle Packing did not seek judgment based on negligence.  Considering our disposition of the case and the jury’s finding that  Panhandle Packing’s responsibility was greater than 50%, it is unnecessary to address this issue.  We do not have authority to render advisory opinions.  Firemen’s Ins. Co of Newark, New Jersey v. Burch, 442 S.W.2d 331, 333 (Tex. 1968); See also Tex. Const. art. V, § 8. Our disposition of First United’s second and fourth issues pretermits consideration of the remaining issues.  Having held there was no evidence to support the jury’s finding of conversion and that submission of the damage question on three theories of recovery was harmful error, but having overruled First United’s no evidence challenge on the contract claim, we reverse and render in part and reverse and remand in part.   Accordingly, the judgment of the trial court is reversed and judgment is hereby rendered that Panhandle Packing and Gasket, Inc. take nothing against First United Bank of Dimmitt on its statutory and common law conversion claims and negligence claim; that portion of the trial court’s judgment regarding Panhandle Packing’s contract claim on its deposit agreement is reversed and the cause is remanded for further proceedings. Don H. Reavis    Justice Johnson, C.J., not participating. FOOTNOTES 1:Because the judgment makes the award of $294,974.13 to Panhandle Packing, to avoid confusion, we will refer to plaintiff/appellee as Panhandle Packing except as otherwise necessary. 2:According to the judgment, Panhandle Packing and Gasket, Inc. is to recover $361,565.55 including interest from First United, but Panhandle Packing and Gasket, Inc., individually and d/b/a Arrow Bearings and Industrial Supply, Nammco Fabrication, Lubbock Gasket and Supply, and Lone Star Gasket and Supply are to recover only the attorney’s fees awarded.  Notwithstanding the unexplained variation, for purposes of our analysis,  the precise legal relationship among appellees is not controlling. 3:By five special exceptions, First United asserted (1) the allegation of conversion  failed to allege sufficient facts, (2) the petition did not state a specific amount of damages being sought, (3) the petition failed to identify the contract allegedly breached, (4) failure to satisfy conditions precedent, and (5) failure to plead sufficient facts regarding the bad faith claim.  Because the record does not show that the exceptions were brought to the attention of the trial court, they present nothing for our review.   See Tex. R. Civ. P. 90. 4:“Convert” for check presented by Betty Kimbrell prior to January 1, 1996, means an instrument is paid on an unauthorized indorsement.  Then “convert” for checks presented after January 1, 1996, means a bank makes or obtains payment with respect to an instrument for a person not entitled to enforce the instrument. 5:By it’s motion for judgment, Panhandle Packing alleged that contract damages based on a four-year statute of limitations would be $333,435.14; based on a three-year statute would be $198,675.32 per section 3.118 of the Business and Commerce Code; and based on a two-year statute would be $107,683.83 per section 16.003 of the Texas Civil Practice and Remedies Code.

01-03-2023

09-07-2015

https://www.courtlistener.com/api/rest/v3/opinions/127980/

538 U.S. 907 NARTRON CORP.v.STMICROELECTRONICS, INC. No. 02-1008. Supreme Court of United States. March 10, 2003. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT. 2 C. A. 6th Cir. Certiorari denied. Reported below: 305 F. 3d 397.

01-03-2023

04-28-2010

https://www.courtlistener.com/api/rest/v3/opinions/3222065/

A majority of the court are of the opinion that the portion of the oral charge excepted to by the defendant, and upon which this cause was reversed by the Court of Appeals, was not reversible error. True, the portion excepted to omitted to state that the conduct of defendant must have been the proximate cause of the death of the deceased — a point as to which there seems to have been no serious controversy — but, looking to the entire oral charge and the defendant's given charges, which are a part of the record, we think there could have been no possible misunderstanding on the part of *Page 3 the jury that the defendant's conduct must have been the proximate cause of the death of the deceased in order to convict him. We are of course aware of the fact that an erroneous statement of the law in the oral charge is not cured by a written one which corrects the error of the oral charge, but here the law as stated in the oral charge was correct, and it was at most incomplete in omitting or failing to emphasize the fact that the facts and law as hypothesized must have caused the death of the deceased and the written charges instructing the jury that this was essential to a conviction, was in no sense contradictory or inconsistent with any part of the oral charge. The writ of certiorari is awarded, the judgment of the Court of Appeals is reversed, and the cause is remanded to said court for a further consideration of same in conformity with this opinion. Writ awarded; reversed and remanded. ANDERSON, C J., and SAYRE, SOMERVILLE and BOULDIN, JJ., concur.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/4268585/

STATE OF VERMONT ENVIRONMENTAL COURT } In re: Higgins - Jockey Lane subdivision final plat } Docket No. 200-8-06 Vtec (Appeal of Clark W. Hinsdale, III, and Monica Tupper) } } Decision and Order on Motion for Summary Judgment Appellants Clark W. Hinsdale III and Monica M. Tupper appealed from a decision of the Development Review Board (DRB) of the Town of Monkton granting final plat approval to Appellee-Applicants John and Lesley Higgins for a six-lot subdivision. Appellants are represented by Liam L. Murphy, Esq. and Pamela A. Moreau, Esq.; Appellee-Applicants are represented by Matthew T. Daly, Esq.; and the Town of Monkton is represented by David Rath, Esq. Appellee-Applicants have moved for summary judgment on all questions in the Statement1 of Questions. Appellants have only responded specifically with regard to Questions 1, 2, 8, 9, and 10. However, failure to respond to a motion for summary judgment does not result in automatic summary judgment in favor of the moving party; the Court must nevertheless satisfy itself that the materials supporting the motion for summary judgment are “both formally and substantively sufficient to show absence of a fact question” and that the moving party is entitled to judgment as a matter of law. Miller v. Merchant’s Bank, 138 Vt. 235, 238 (1980); see also Milton Educ. & Support Ass’n v. Milton Bd. of School Trustees, 171 Vt. 64, 74-75 (2000) (quoting Bacon v. Lascelles, 165 Vt. 1 Some of the questions in the Statement of Questions are framed in terms of whether the application contains all the information required by the regulations; other questions are framed in terms of whether the proposal satisfies certain sections of the regulations. 1 214, 218 (1996)). In this de novo appeal, the Court must apply the substantive standards that were applicable before the DRB to determine whether there are any genuine issues of material fact and whether Appellee-Applicants are entitled to judgment as a matter of law. V.R.E.C.P. 5(g); 10 V.S.A. 8504(h). The following facts are undisputed unless otherwise noted. Appellee-Applicants own an 85.83-acre parcel of land that they propose to subdivide into the six lots at issue in the present application. The project property has frontage on the north side of Jockey Lane in the Town of Monkton. Appellant Tupper owns a 10.2-acre parcel of land immediately to the north of and adjoining Appellee-Applicants’ property. Appellant Hinsdale owns 78.5 acres of land in two parcels north of Appellee-Applicants’ property, separated from it by another unrelated property. Appellants claim rights of access to their property from Jockey Lane via private rights-of-way and/or by a so-called “pent” public road, over Appellee-Applicants’ property. Appellants have filed2 a complaint for declaratory relief in the Addison Superior Court for a declaration that the pent road and the rights-of-way exist over the Higgins’ property giving access to Appellants’ properties from Jockey Lane. Appellee-Applicants propose to divide the 85.83-acre parcel into six lots, numbered3 as Lots 7 through 12, each proposed to have a building site for a single-family house. The 2 The complaint was filed on July 25, 2007 and was assigned Docket No 197-7-07 Ancv, but as it has not yet been served, it is not a public record, no answer has been filed, and it has not been scheduled by the Superior Court. 3 Appellee-Applicants use a numbering system beginning with Lot 7, possibly due to a prior subdivision having lots numbered 1 through 6, while Appellants’ Exhibit C shows the lots for the present proposal as numbered 1 through 6. To avoid confusion, this decision uses the numbering system used by Appellee-Applicants’ application at issue in the present case, referring to the lots as numbered 7 through 12. 2 relative locations of the proposed building envelopes and infrastructure in relation to the rights-of-way are the focus of Appellants’ Statement of Questions. The southernmost five of the six proposed lots: Lots 7 through 11, range from 5.1 acres to 7.9 acres in size. Proposed Lot 12 contains the remaining 53.8 acres and comprises the northern half of the project. Proposed Lot 7 has frontage on Jockey Lane. Access to the subdivision is proposed to be by a subdivision road having a fifty-foot-wide right-of-way and extending northerly from Jockey Lane at the southwesterly corner of Lot 7, through Lots 7 and 8, and terminating in a cul-de-sac located wholly on Lot 9. A thirty-thousand-gallon fire pond with a dry hydrant is proposed to be constructed within the loop of the cul-de-sac, to provide water for fire fighting. Two additional fifty-foot-wide easements benefitting Lot 12 extend northerly from the cul-de-sac, one over Lot 9 and one over Lot 11. Access to each house site is via a separate driveway from the subdivision road, except that access to the house site on Lot 12 is by an extension of the driveway serving Lot 11. Appellants and Appellee-Applicants appear to agree4 that several rights-of-way cross the proposed subdivision and appear to agree as to their locations; they disagree as to the legal status of these rights-of-way and as to whether the more westerly of these is a so-called “pent” or enclosed public road.5 4 As further discussed with regard to Question 1, below, the easement and right-of- way sheet of Appellee-Applicant’s application, Sheet C2, shows dotted-and-dashed lines in these locations, but lacks a legend or notes to explain what the dotted-and-dashed lines are intended to represent. 5 The term “pent road” is defined as “any town highway which, by written allowance of the selectmen, is enclosed and occupied by the adjoining landowner with unlocked stiles, gates and bars in such places as the selectmen designate.” 19 V.S.A. § 301(4). The legislative body of a municipality may discontinue any town highway under the procedures found in 19 V.S.A. §§ 708-11. 19 V.S.A. § 771(a). 3 Two asserted rights-of-way extend northerly from Jockey Road, crossing into Lot 12 of the proposed subdivision at its southeasterly and southwesterly corners. The more easterly of these rights-of-way extends northerly from Jockey Lane along the proposed subdivision roadway to just past the driveway for the house site on Lot 7, and then extends northerly through proposed Lots 8 and 9, crossing through or very close to the proposed sites for the septic disposal fields, house sites, and well shield envelopes on Lots 8 and 9. After extending onto Lot 12 at its southeasterly corner, one branch of this right-of-way extends to the north across Lot 12 onto the property directly to the south of Appellant Hinsdale’s property. On Lot 12., the other branch of the more-easterly right-of-way turns to the west and extends westerly across Lot 12, crossing the proposed driveway to the Lot 12 house site and crossing through the proposed site for the primary disposal field for Lot 12. The more westerly of the two asserted rights-of-way is the one claimed by Appellants to be a “pent” public road. It extends northerly from Jockey Lane over unrelated land and enters the proposed subdivision along the westerly boundary of Lot 11 onto Lot 12 at its southwesterly corner, extending to the north across Lot 12 onto or near Appellant Tupper’s property. Appellee-Applicants and the Town of Ferrisburgh entered into a settlement stipulation that was ratified by the Town of Ferrisburgh on June 5, 2007, ratified by the Town of Monkton on July 9, 2007, and approved by the Court on July 17, 2007. The stipulation provided that Ferrisburgh would agree to approval of the subdivision if the traveled portion of the access drive is at least twenty feet wide, if all other roads in the subdivision are at least fourteen feet wide, if the dry hydrant and fire pond are constructed to provide sufficient fire protection as determined by the Chief of the Ferrisburgh Fire Department, if Appellee-Applicants convey an easement to the Town of Monkton at the southeast corner of the property for the construction of a separate cul-de-sac adjacent to 4 Jockey Lane, if Appellee-Applicants provide by covenant for the maintenance of the dry hydrant, fire pond, and subdivision roadway, and if they file a revised plot plan6 depicting these conditions. DRB Checklists It is the practice of the DRB to maintain a checklist, filled out by the DRB or its staff, listing the required submissions for each stage of the subdivision application process, which in Monkton comprises sketch plan review, followed by preliminary and then final subdivision plat review. See In re Appeal of Carroll, 2007 VT 19, ¶¶ 13-14. As this is a de novo appeal, the fact that an the applicant’s submissions were checked off by the DRB or its staff as meeting the requirements for each stage of review is not dispositive of any issue on appeal, any more than any other portion of the DRB’s decision which is before the Court in this appeal. Question 5 of the Statement of Questions Appellants’ Question 5 asks whether the proposed subdivision is consistent with certain 2006 amendments to 19 V.S.A. §§ 302 and 305, the statute addressing the classification and inspection of town highways. Nothing in the Monkton Subdivision Regulations incorporates by reference any provisions of Title 19, nor is Title 19 within the jurisdiction of the Court as defined in 4 V.S.A. § 1001(b). Accordingly, Question 5 is beyond the jurisdiction of the Court and Appellee-Applicants’ motion to dismiss Question 5 is GRANTED. 6 Although this settlement has been approved, if the revised plot plan has been filed, a copy has not been provided to the Court. 5 Questions 1 and 6 of the Statement of Questions Appellee-Applicants have also moved to dismiss Questions 1 and 6 as beyond the jurisdiction of the Court. Appellants’ Question 1 addresses whether the proposed subdivision plat contains certain information required to be included in the application. Question 1 asks whether the subdivision plat contained in the application accurately shows and identifies existing accesses to Appellants’ parcels to the north of the subdivision property, pursuant to § 210(4) of the Subdivision Regulations.7 That section requires (in the first subsection (4)) that the applicant submit information regarding “existing restrictions on the use of land, including easements” and requires (in the second subsection (4)) that the applicant submit information regarding “streets which are proposed, mapped, or built.” While Appellee-Applicants are correct that this Court is without jurisdiction to determine the extent of the property rights of the parties with respect to any claimed right- of-way or claimed pent public road, the Court does have jurisdiction to determine whether an application for subdivision has met all the requirements for submission and for approval under the municipality’s regulations. See, e.g., Appeal of Cole, Docket No. 174-10-01, slip op. at 1 (Vt. Envtl. Ct. May 12, 2003); In re: Appeals of Van Nostrand, Docket Nos. 209-11- 04 Vtec and 101-5-04 Vtec, slip op. at 4 (Vt. Envtl. Ct. Jan. 13, 2006). The Court has only been provided with reduced size versions of the subdivision plans, at a reduction of approximately one-quarter of the size of the plans submitted with the application, including two versions of Sheet C2, entitled “LOT LAYOUT, RIGHT OF WAY, AND EASEMENT SHEET,” one dating from December of 2005 and one dated May 7 Section 210 contains one set of numbered subsections for minor subdivisions and another set of numbered subsections requiring additional information to be submitted for major subdivisions. The both sets of information are required for the present project as a “major” subdivision of more than three lots and requiring a new street. 6 23, 2006, with a revision date marked Final Permit Approval, dated 6/12/06. The final version of Sheet C2 shows dotted-and-dashed lines extending from Jockey Lane towards the north (as well as an east-west line through proposed Lot 12) in the locations asserted by Appellants to be either private rights-of-way or a pent public road. However, there is no legend or key on Sheet C2 to define whether these dotted-and- dashed lines are claimed by Appellee-Applicants to be “existing restrictions on the use of land, including easements” or to be “streets which are . . . mapped,” under § 210, or whether Appellee-Applicants’ plan is simply showing them as disputed rights-of-way. Nor can the Court find within the application materials submitted with the present motions any narrative or other indication of what the dotted-and-dashed lines are intended to represent. Without such a key, legend, note8 or narrative, material facts are in dispute as to whether Sheet C2 of the proposed subdivision plan meets the requirements of § 210. Therefore, Appellee-Applicants’ motion for summary judgment on Question 1 is DENIED. Appellants’ Question 6 asks whether the application adequately addresses “the municipal burdens to Monkton and Ferrisburgh associated with the upgrading and maintenance of Jockey Lane and other municipal roads.” However, unlike the standards applicable to conditional use approval, compare 24 V.S.A. § 4414(3)(A)(i), (iii), nothing in the Subdivision Regulations appears to address the upgrading or maintenance of municipal roads9 beyond the boundaries of the subdivision parcel. To extent that the project’s effect 8 Compare Note 7 on the sheet of the application entitled “SUBDIVISION PLAT,” referring to a different easement than those apparently shown on Sheet C2.. 9 Moreover, even if the Subdivision Regulations did address the municipal burden on the roads within the Town of Monkton, they do not address the upgrading and maintenance of roads in neighboring towns. In any event, the Town of Ferrisburgh had standing as an interested party in this matter, and entered into a settlement with Appellee- 7 on Jockey Lane is addressed by the project’s curb cut permit, if it is the Selectboard that granted the curb cut permit, an appeal of that decision is also beyond the jurisdiction of this Court. 4 V.S.A. § 1001(b). Accordingly, Question 6 is beyond the jurisdiction of the Court and Appellee-Applicants’ motion to dismiss Question 6 is GRANTED. Questions 8 and 9 of the Statement of Questions Appellants’ Question 8 asks whether the application accurately identifies “requested waivers of road frontage and other district planning standards.” While § 140 of the Subdivision Regulations allows the Development Review Board, and hence this Court in this de novo appeal, to waive the provision of otherwise-required improvements, subject to appropriate conditions, the portion of the application provided to the Court contains no indication that Appellee-Applicants have requested any waivers of any of the requirements of the Subdivision Regulations. It is up to Appellee-Applicants to determine whether they wish to request any waivers10 in their application. Accordingly, Appellee-Applicants’ Motion for Summary Judgment as to Question 8 is GRANTED. Appellants’ Question 9 asks whether the septic disposal facilities for the subdivision are “properly sited” vis-à-vis the “existing accesses to adjoining properties.” The issue raised by Question 9 is not whether the proposed locations of the septic disposal facilities Applicants, so that Question 6 as it pertains to the Town of Ferrisburgh has also become moot. In re Grievance of Vt. State Employees’ Ass’n, Inc., 2005 VT 135, ¶10, 179 Vt. 578, 581 (2005). 10 Of course, if Appellants show that some requirement of the Subdivision Regulations is not met by the application, and if Appellee-Applicants therefore later determine that they wish to request a waiver, the Court would then have to consider whether to remand the application to the Development Review Board for it to consider the waiver in the first instance. 8 meet the state or local requirements for approval of septic facilities; they have received state approval which has not been appealed, and only state approval is required under §256 of the Subdivision Regulations. Rather, the issue raised by Question 9 is whether the location of the septic systems for some of the lots interferes with the rights of Appellants to the use of certain of the claimed rights-of-way. Because the Subdivision Regulations do not require the DRB, and hence this Court in this de novo appeal, to approve the location of septic systems, Question 9 is beyond the jurisdiction of this Court. Accordingly, Appellee- Applicants’ Motion for Summary Judgment as to Question 9 is GRANTED. Questions 2, 3, and 7 of the Statement of Questions Appellants’ Question 2 asks whether the proposed subdivision meets the requirements of § 321(2), (6), (7), (9), (11), (12), and (13) regarding the issues of access to adjoining parcels, fire protection, and provision for utilities. Section 321(7) is addressed below in the discussion of Question 3. Section 321(2) requires that subdivision streets “shall be arranged as to cause no undue hardship to adjoining properties, and shall be coordinated so as to compose a convenient system.” Section 321(11) requires that the “[a]rrangement of streets shall provide for continuation of existing streets between adjacent properties where necessary for convenient movement of traffic, fire protection[,] or efficient provision of utilities.” Until the status of the asserted rights-of-way (including the asserted “pent” public road) is resolved, this Court cannot determine whether the design of the subdivision or the relative locations of the subdivision roadway and those rights-of-way cause any hardship to adjoining properties or compose a convenient system, or whether the continuation of any project roadways is necessary for convenient movement of traffic, for fire protection, or for the efficient provision of utilities to those adjoining properties. Accordingly, summary judgment must be denied as to §§ 321(2) and (11). 9 Section 321(6) requires that “[w]here a tract is subdivided into lots much larger than the minimum size required in the Zoning District in which a subdivision is located” the DRB may require that streets be laid out to permit future subdivision. The minimum lot size in the RA 5 zoning district has not been provided to the Court, but assuming from the name of the district that the minimum lot size is five acres, only lot 12 is “much larger” than the minimum lot size. As the easement for the subdivision roadway has been extended onto Lot 12 in two locations, the subdivision meets this requirement. Accordingly, summary judgment must be granted in favor of Appellee-Applicants as to § 321(6). Section 321(9) states that “[h]alf streets and privately owned reserve strips controlling access to streets or adjacent property shall be prohibited.” The proposal does not appear to propose any half streets or privately-owned reserve strips. Accordingly, summary judgment must be granted in favor of Appellee-Applicants as to § 321(9). Section 321(12) states that “[i]f the adjacent property is undeveloped and the street must be a dead-end temporarily, right[s] of way and improvements shall be extended to the property line.” Until the development status of adjacent property and the status of the asserted rights-of-way (including the asserted “pent” public road) is resolved, this Court cannot determine whether the asserted rights-of-way would qualify as extension of rights- of-way to the property line under this section. Accordingly, summary judgment must be denied as to § 321(12). Section 321(13) states that “[n]o dead-end streets shall be permitted except when topographic or physical conditions make it impossible, at the time, to extend it or connect it with another proposed or existing street.” No proposed or existing streets have been claimed to exist on any adjoining property. Accordingly, summary judgment must be granted in favor of Appellee-Applicants as to § 321(13). Therefore, because the issue of whether rights-of-way and a pent road exist on the proposed subdivision, Appellee-Applicants’ motion for summary judgment on Question 10 2 is DENIED as to §§ 321(2), (11) and (12) and is GRANTED in favor of Appellee-Applicants as to as to §§ 321(6), (9) and (13). Appellants’ Question 3, and a portion of Question 2, asks whether the proposed subdivision meets the requirements of § 321(7) of the Subdivision Regulations with regard to provisions for widening the existing public street, that is, Jockey Lane. Section 321(7) requires that, “[w]here the subdivision borders on an existing street and the Town Plan or Official Map indicates plans for realignment or widening of the street that would require reservation of some land of the subdivision,” the final plat must mark those areas as “Reserved for Street Realignment (or Widening) Purposes.” Appellee-Applicants have not provided either the Town Plan or the Official Map, nor have they provided an affidavit of an appropriate Town official, to show that the Town Plan and Official Map do not indicate plans for realignment or widening of Jockey Lane. As material facts have not been provided to support the granting of Appellee-Applicants’ motion for summary judgment on Question 3, it is DENIED, without prejudice to its renewal at or before trial. Appellants’ Question 7 asks whether the proposed subdivision application adequately demonstrates that the Monkton Fire Department can provide fire protection to the proposed subdivision. We treat this question as addressing whether the subdivision proposal meets § 445 of the Subdivision Regulations, rather than addressing the capacity of the Monkton Fire Department (as in the case of Question 6). Material facts are in dispute, or at least have not been provided to the Court, as to whether the Monkton Fire Chief is satisfied with the adequacy of the water storage facilities for fire protection provided by the subdivision plan, as required by § 445, nor as to whether the dry hydrant to be installed in connection with that fire pond meets the requirements of § 445 for the installation of fire hydrants in the subdivision. If it does not, that requirement could be the 11 subject of a waiver request, but no such waiver request appears to have been made. As material facts have not been provided to support the granting of Appellee-Applicants’ motion for summary judgment on Question 7, it is DENIED, without prejudice to its renewal at or before trial. Question 4 of the Statement of Questions Appellants’ Question 4 asks whether the proposed subdivision meets the requirements of § 340 of the Subdivision Regulations, which addresses the reservation of land for recreation, or payment in lieu of such reservation. Appellee-Applicants are correct that § 340 is discretionary with the DRB, and hence this Court, however, they have not provided sufficient undisputed facts for the Court to make a determination that the reservation of land for recreation should not be required under § 340. As material facts have not been provided to support the granting of Appellee-Applicants’ motion for summary judgment on Question 4, it is DENIED, without prejudice to its renewal at or before trial. Question 10 of the Statement of Questions In their Statement of Questions, Appellants ask whether the proposed subdivision protects and provides for continuing forestry and recreational uses of the adjoining properties, referring to the Monkton Town Plan Section 2(E) and (F). Section 305(2) of the Subdivision Regulations requires subdivisions to “be in harmony with the Town Plan.” Appellee-Applicants argue that the “Forest Stewardship Plan” to be created by the Declaration of Covenants goes well beyond what is required by the Town Plan. However, neither party has provided a copy of the Town Plan from which the Court could determine whether the subdivision is in harmony with those Town Plan requirements. As material facts regarding the Town Plan have not been provided to support the granting of Appellee- 12 Applicants’ motion for summary judgment on Question 10, it is DENIED, without prejudice to its renewal at or before trial. Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that Appellee-Applicants’ Motion for Summary Judgment is GRANTED with respect to the portion of Question 2 addressing §§ 321(6), (9), and (13) and with respect to Questions 5, 6, 8 and 9; it is otherwise DENIED, as to the portion of Question 2 addressing §§ 321(2), (7), (11), and (12) and with respect to Questions 1, 3, 4, 7 and 10, as material facts are in dispute, or at least have not been provided to the Court, as to those questions. A telephone conference has been scheduled (see enclosed notice) to discuss the appropriate next scheduling for this matter, including whether the parties wish to proceed to schedule the trial or whether, if Appellants will be serving the complaint and otherwise pursuing the declaratory judgment action, the parties wish to wait until the superior court proceedings have been resolved. Done at Berlin, Vermont, this 28th day of September, 2007. _________________________________________________ Merideth Wright Environmental Judge 13

01-03-2023

04-24-2018

https://www.courtlistener.com/api/rest/v3/opinions/2767291/

FILED United States Court of Appeals Tenth Circuit January 7, 2015 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court TENTH CIRCUIT BRANDON CHE LEE, Plaintiff - Appellant, No. 14-3214 v. (D.C. No. 5:14-CV-03097-SAC-DJW) (D. Kan.) CLAUDE MAYE, Warden, Defendant - Appellee. ORDER AND JUDGMENT * Before GORSUCH, MURPHY, and HOLMES, Circuit Judges. Brandon Che Lee filed a civil rights suit challenging the conditions of his confinement in the federal penitentiary at Leavenworth, Kansas. He alleged that unnamed prison officials are torturing him and poisoning his food. Screening his complaint pursuant to the Prison Litigation Reform Act of 1995, 28 U.S.C. § 1915A, the district court dismissed his action as frivolous. Mindful of our * After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. obligation to construe pro se filings liberally, we dismiss this appeal on the same grounds. Unlike Federal Rule of Civil Procedure 12(b)(6), § 1915A affords courts the “unusual power to pierce the veil of the complaint’s factual allegations and dismiss those claims whose factual contentions are clearly baseless.” Neitzke v. Williams, 490 U.S. 319, 327 (1989) (construing a similarly worded provision now found at 28 U.S.C. § 1915(e)(2)). For the reasons thoroughly explained by the district court, the conclusory assertions in Mr. Lee’s filings as to the conditions of his confinement meet this standard. To the extent Mr. Lee separately suggests that his confinement is itself unlawful because of errors underlying his conviction, he must seek relief not in a civil rights action but under the federal habeas corpus statutes. See Nelson v. Campbell, 541 U.S. 637, 643 (2004). And he may pursue that relief only in the court that sentenced him, namely, the District Court for the Central District of California. See 28 U.S.C. § 2255(a). Mr. Lee’s motion to proceed in forma pauperis is denied, and this appeal is dismissed as frivolous. Mr. Lee is reminded of his obligation to pay the filing fees in full. The district court’s dismissal counts as a “strike” for purposes of 28 U.S.C. § 1915(g). Our disposition of this appeal counts as a second. ENTERED FOR THE COURT Neil M. Gorsuch Circuit Judge -2-

01-03-2023

01-07-2015

https://www.courtlistener.com/api/rest/v3/opinions/2892643/

NO. 07-03-0071-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A MARCH 8, 2005 ______________________________ RANDY L. JONES, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2001-437483; HONORABLE BRADLEY UNDERWOOD, JUDGE _______________________________ Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ. MEMORANDUM OPINION Appellant Randy L. Jones was convicted, pursuant to a plea bargain, of possession with the intent to deliver a controlled substance (methamphetamine) in the amount of 4 to 200 grams.  He was sentenced to eight years confinement in the Texas Department of Criminal Justice–Institutional Division, probated for eight years, under terms and conditions of community supervision.  He contends on appeal that the trial court erred in failing to grant his motion to reconsider its ruling on his motion to suppress. (footnote: 1) He argues there was not valid consent to search a feed bin being used by appellant, that his vehicle was searched illegally, and that an oral statement made to a law enforcement officer is inadmissible under article 38.22 of the Texas Code of Criminal Procedure. Off-duty Slaton police officer Ron McGlone went to a property located in Slaton at which he kept a horse.  Appellant kept two horses on the same premises.  Entering the barn on the property, the officer noticed that some feed was not stored as usual in a feed bin located in the barn.  He raised the lid of the feed bin and noticed a black toolbox inside.  On opening the toolbox he detected a strong odor and saw coke bottles with tubes coming out the top.  Believing the items were connected with drug activity, he went to the police station and contacted his lieutenant, officer Timms.  The officers returned to the scene.  Both officers believed the items to be a part of a drug lab, so Timms notified the federal Drug Enforcement Administration.  The officers then went to a location approximately a quarter of a mile away from the barn to wait for the DEA agents to arrive. While the officers were waiting, they saw appellant and another individual arrive at the property in a pickup McGlone recognized as belonging to appellant. The officers’ view of the entrance to the barn was obscured, but officer McGlone testified that appellant and his companion got out of the pickup and appeared to enter the barn. After about five minutes passed, they got back into the vehicle and attempted to leave the property. Timms pulled his unmarked police car behind the pickup to keep appellant from leaving the scene just as DEA agents Robertson and Bender arrived.  The officers asked appellant to move his pickup off the street, up the driveway leading to the barn. Appellant complied, and his vehicle was blocked in by the officers’ vehicles. Agent Robertson told appellant he had obtained consent to search the barn. (footnote: 2) Robertson asked appellant if there was anything in the barn that would be a safety concern.  Appellant responded there was not. The DEA agents and Timms went inside the barn, looked inside the feed bin, and found items Robertson considered to be part of a methamphetamine lab. When the agents came out of the barn, Robertson told appellant he found what he believed to be a “disassembled meth lab” inside the barn.  Appellant responded that it was not his, but belonged to someone in Lubbock.  At this point appellant and his passenger were placed in handcuffs.  Officer McGlone searched appellant’s vehicle and found a glass dish with an open pocketknife and residue in it. Robertson used a test kit to test the residue in the dish and it tested presumptively positive for methamphetamine.  Appellant was arrested. Appellant filed a motion to suppress the substance found in his truck and his statement made to agent Robertson.  After a hearing, at which the State presented the testimony of McGlone, Timms and Robertson, the trial court denied the motion to suppress.  Later, on appellant’s motion, the trial court authorized the taking of the deposition of Mr. R. T. Farley, the owner of the premises.  Appellant then filed a motion asking the court to reconsider its ruling on the motion to suppress, appending Farley’s deposition.  That motion also was denied.   Generally, a trial court’s ruling on a motion to suppress is reviewed by an abuse of discretion standard. Oles v. State , 993 S.W.2d 103, 106 (Tex.Crim.App. 1999); Maddox v. State , 682 S.W.2d 563, 564 (Tex.Crim.App. 1985).  In reviewing trial court rulings on motions to suppress, we afford almost total deference to the trial court’s determination of historical facts when it is supported by the record. Guzman v. State , 955 S.W.2d 85, 89 (Tex.Crim.App. 1997).   When, as here, the trial court fails to file findings of fact, we view the evidence in the light most favorable to the trial court's ruling, and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record.   See Carmouche v. State , 10 S.W.3d 323, 328 (Tex.Crim.App. 2000).  If the trial judge's decision is correct on any theory of law applicable to the case, the decision will be sustained. State v. Ross , 32 S.W.3d 853, 855-56 (Tex.Crim.App. 2000).  At a suppression hearing, the trial court is the sole and exclusive trier of fact and judge of the credibility of witnesses and the weight to be given their testimony.  Id. at 855. Appellant argues in his first issue that the search of the feed bin located in the barn was illegal because McGlone did not have equal control and equal use of the property and therefore his consent to search was invalid. (footnote: 3) Appellant’s contention was that even though McGlone had access to the property, the feed bin was used exclusively by appellant and McGlone did not have permission to look inside the bin, or authority to consent to its search.  McGlone, a patrolman and animal control officer for the City of Slaton, testified that he had given appellant permission to keep animals on the property because appellant had been keeping a horse at another location in town, in violation of a city ordinance.  McGlone said the property’s owner allowed him to use it in exchange for upkeep of the property. McGlone also testified he owned the feed bin and had placed it in the barn when he began using the property.  He let appellant use the bin.   Appellant’s argument on appeal is based primarily on Farley’s deposition testimony, which conflicted with McGlone’s testimony in some respects. Farley testified he gave appellant permission to put a horse on the property, but had not given McGlone permission to keep horses there. Farley said he previously had given McGlone permission to keep some goats on the property, but later asked him to remove the animals.  Appellant concludes that McGlone had no permission to use the property and could not therefore have equal control and use of the barn or feed bin. Whether McGlone had the right to use and occupy a particular area to justify his permitting officers to search that area is a question of fact.   Linnell v. State , 767 S.W.2d 925, 927-28 (Tex.App.–Austin 1989, no pet.).   Acknowledging the precept that appellate courts must defer to a trial court’s resolution of issues that turn on the credibility and demeanor of witnesses, see Guzman, 955 S.W.2d at 89, appellant suggests that there is less need for us to defer to the trial court’s evaluation of the relative credibility of McGlone’s and Farley’s descriptions of the arrangements between them with respect to McGlone’s occupancy of the barn, because Farley did not appear before the trial judge and he was required to evaluate Farley’s testimony through reading his deposition.  While appellant may be correct that we are in as good a position as the trial court to read and evaluate Farley’s deposition testimony, the deference we owe to the trial court’s fact-finding is not limited to facts based on live testimony.   Manzi v. State , 88 S.W.3d 240, 243 (Tex.Crim.App. 2002) (appellate court defers to trial court’s findings of fact even when they are based on affidavits rather than live testimony) .  Too, the trial court here at least was able to evaluate McGlone’s credibility and demeanor first-hand and to consider Farley’s deposition testimony in light of that evaluation.  Moreover, even based solely on the “cold records” of McGlone’s testimony and Farley’s deposition testimony, the nature of Farley’s testimony was such (footnote: 4) that we could not say the trial court abused its discretion by accepting McGlone’s testimony as true.   The trial court’s implied finding that McGlone had equal control over and use of the barn and feed bin, giving him capacity to consent to the search, is supported by the record.  Appellant’s first issue is overruled. In his second issue, appellant argues that search of his vehicle without a warrant was illegal because it did not fall under any exception to the warrant requirement and was performed without probable cause.  The State contends that the search was legal as a search incident to arrest. (footnote: 5)  We agree with the State. When a police officer has made a lawful custodial arrest of the occupant of an automobile, the officer may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile. New York v. Belton , 453 U.S. 454, 460, 101 S. Ct. 2860, 2864, 69 L. Ed 2d 768 (1981); State v. Ballard , 987 S.W.2d 889, 892 (Tex.Crim.App. 1999).  An officer may also examine the contents of any containers found within the passenger compartment. Belton , 453 U.S. at 460. Once an officer has probable cause to arrest, he may search the passenger compartment of a vehicle as a search incident to that arrest. Ballard , 987 S.W.2d at 892.  Probable cause exists “at that moment the facts and circumstances within the officer’s knowledge and of which [he] had reasonably trustworthy information were sufficient to warrant a prudent man in believing the arrested person had committed or was committing an offense.” Guzman v. State , 995 S.W.2d at 90.  It is irrelevant whether the arrest occurs immediately before or after the search, as long as sufficient probable cause exists for the officer to arrest before the search. Ballard , 987 S.W.2d at 892; Williams v. State , 726 S.W.2d 99, 101 (Tex.Crim.App. 1986) (citing Rawlings v. Kentucky , 448 U.S. 98, 100 S. Ct. 2556, 65 L. Ed. 2d 633(1980)). Prior to the search of appellant’s vehicle, (footnote: 6) DEA agents had observed in the feed bin items they considered to be a disassembled methamphetamine lab.  Appellant was present on the property and had apparently left the barn shortly before the officers arrived.  The officers knew that appellant had access to the barn and feed bin where the items were found. (footnote: 7)  When agent Robertson told appellant of the items’ discovery, appellant made a statement indicating he had some knowledge of them. Under the circumstances present here, these factors linked appellant to the items, and gave the officers probable cause to arrest him for possession of drug paraphernalia in the form of the methamphetamine lab. See Tex. Health & Safety Code Ann. §§ 481.002(17), 481.108 and 481.125(a) (Vernon 2003 & Supp. 2004). See generally Chavez v. State , 769 S.W.2d 284, 288-89 (Tex. App.--Houston [1st Dist.] 1989, pet. ref'd) (listing facts and circumstances indicating an accused's knowledge and control of contraband). The officer’s subsequent search of appellant’s truck was therefore lawful as a search incident to arrest. Appellant’s second issue is overruled. Appellant contends in his third issue that his oral statement to agent Robertson is inadmissable under article 38.22 of the Code of Criminal Procedure because the statement was made during a custodial interrogation prior to statutory warnings and without it being recorded. (footnote: 8)  At the hearing on the motion to suppress, agent Robertson testified: Q. Okay. Once you found these items in that grain bin, what did you do then, Agent Robertson? I came back out–we came back outside. At that point, we know we have a contaminated area; therefore, there’s certain procedures that we must follow for guidelines with DEA. I came back outside, and I told [appellant] that we had found what I believed was a disassembled meth lab inside the barn.  He said it’s not mine. As a matter of fact, let me quote what he said. I’ve got it here in my report. Okay. He said it wasn’t his, it was a guy’s in Lubbock is what he said. After he said that, did you continue on with the procedures that you were talking about? Yes, ma’am. At that–at that point, we had–we knew we had a possible methamphetamine lab there.  We didn’t know what else we had on the property, so at that time, we went ahead and through procedure, we handcuffed both persons. On cross-examination, when appellant’s counsel referred to the exchange as “that question,” Robertson emphasized, “I didn’t ask him. I just told him.”  Appellant argues that at the time of the exchange between Robertson and appellant, the officers nonetheless had focused their investigation on appellant, and had made it clear they believed he was responsible for the items they found in the barn. Additionally, because the officers believed they had probable cause to arrest appellant and did in fact arrest appellant, (footnote: 9) he was in custody at the time he made the statement. Appellant also contends that he was responding to a question from Robertson. The State does not deny appellant was in custody at the time of his statement to Robertson, but contends the statement did not stem from custodial interrogation  because he volunteered the information.   See Tex. Code Crim. Proc. Ann. art. 38.22 § 5 (Vernon 1979) (statute does not preclude admission of statement that does not stem from custodial interrogation). Custodial interrogation is questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Miranda v. Arizona , 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The Supreme Court has distinguished between volunteered custodial statements and those made in response to interrogation: [ T]he Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent.  That is to say, the term "interrogation" under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. .  .  .  A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.   Rhode Island v. Innis , 446 U.S. 291, 300-302, 100 S. Ct. 1682, 1689-90, 64 L. Ed. 2d 297 (1980). We agree appellant’s statement was not the result of questioning, or its functional equivalent, by Robertson.  The State compares Robertson’s statement with that addressed in Camarillo v. State , 82 S.W.3d 529, 534-36 (Tex.App.–Austin 2002, no pet.).  While Robertson’s remark that he had found what he believed was a methamphetamine lab in the barn is perhaps not properly characterized as “offhand,” id. at 535, the statement is not a question, and does not appear to have been calculated to elicit an incriminating response from the suspect.  Appellant’s third issue is overruled. The trial court did not abuse its discretion in denying appellant’s motion to suppress and motion to reconsider the motion to suppress. The judgment of the trial court is affirmed. James T. Campbell         Justice Do not publish.   FOOTNOTES 1:1 The trial court certified Jones’s right to appeal the ruling on his pretrial motion to suppress.  See Tex. R. App. P. 25.2(a)(2). 2:2 The consent was given by officer McGlone. 3:3 The State contends appellant has not demonstrated a legitimate expectation of privacy in the feed bin and therefore lacks standing to object to its search.   See generally Villarreal v. State , 935 S.W.2d 134 (Tex.Crim.App. 1996).  We do not reach that contention, and will assume for purposes of this discussion appellant has standing. 4:4 At the time of the deposition Mr. Farley was 87 years old.  Because of poor health, he had not been to the property in some time.  He expressed difficulty remembering some events.  We note also that Farley’s testimony he gave appellant, but not McGlone, permission to keep horses on the property is contradicted by the undisputed evidence that McGlone was keeping a horse there. 5:5 The State also argues the officers had probable cause to believe appellant’s vehicle contained contraband or the instrumentalities of a crime.  We do not reach that argument. 6:6 Appellant’s brief suggests that the search of the interior of his pickup occurred while the DEA agents and Timms were in the barn, referencing a page in the reporter’s record containing part of Robertson’s testimony.  By our reading of the record, Robertson’s testimony is clear that the search of the pickup occurred after appellant was placed in handcuffs, after the agents and Timms returned from their search of the barn.  Although McGlone’s testimony about the sequence of events is unclear at points, it is consistent that the search of appellant’s vehicle occurred after he was handcuffed.   7:7 Officer McGlone, of course, had personal knowledge of appellant’s use of the feed bin. 8:8 Article 38.22, section 3(a)(2) provides, in part, that no oral statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless statutory warnings are given to the accused prior to the making of the oral statement. The accused also must knowingly, intelligently and voluntarily waive the rights set forth in the warnings. Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a)(2) (Vernon Supp. 2004). 9:9 Appellant also asserts that his statement to Robertson is inadmissable as the product of an illegal arrest.  Our conclusion that officers had probable cause to arrest appellant disposes also of that assertion.

01-03-2023

09-07-2015

https://www.courtlistener.com/api/rest/v3/opinions/2899524/

NO. 07-08-0152-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D APRIL1, 2009 ______________________________ JOHN WAYNE JACKSON, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 84TH DISTRICT COURT OF HUTCHINSON COUNTY; NO. 10036; HONORABLE WILLIAM D. SMITH, JUDGE _______________________________ Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. MEMORANDUM OPINION           Appellant, John Wayne Jackson, was convicted by a jury of aggravated sexual assault of a child and indecency of a child by contact. He received respective sentences of thirty-five years and twenty years confinement to run concurrently. In a single point of error, Appellant contends the trial court erred in its determination that his confession was voluntary. We affirm. Background           On October 11, 2007, the Hutchinson County Grand Jury indicted Appellant for aggravated sexual assault of a child and indecency with a child by contact. On October 24, 2007, Appellant filed a motion to suppress his confession because his statements were involuntary, i.e., coerced and enticed.           On November 28, 2007, the trial court held a suppression hearing on Appellant’s motion. Detective Jerod Carr was the sole witness. Detective Carr testified that, on October 4, 2007, he went to Appellant’s house shortly before 5:00 p.m. and arrested him pursuant to a warrant. Appellant was nineteen years old and indicated he had smoked marihuana earlier that day. When they arrived at the police station, he was given his Miranda rights. From the time of his arrest through booking, he cried off and on. Initially, he denied any wrongdoing, however, after less than an hour of questioning, he admitted he had sexually assaulted the victim. After his admission, Detective Carr placed him in an interrogation room and started videotaping his confession at 5:30 p.m.           At the outset of the videotape, Detective Carr again read Appellant his rights and indicated that Appellant could terminate the interview at any time. Appellant initialed the rights he was given and signed a written statement of his rights. He also signed a statement indicating that all his statements were voluntary. Detective Carr reiterated that Appellant was free to answer his questions or not. In the twenty-seven minute interview, Appellant confessed to sexually assaulting the victim.           After a psychiatric evaluation and hearing, on February 6, 2008, Appellant was adjudged competent to stand trial. On March 31, 2008, Appellant was tried before the court and found guilty of aggravated sexual assault and indecency with a child by contact. This appeal followed. Discussion           Appellant contends his confession was not voluntary because, at the time of his statements, Detective Carr was wearing his gun and Appellant was suffering from a mental disorder, scared, and crying.           We review a trial court’s ruling on a motion to suppress evidence under a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App. 2007). The trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24-25 (Tex.Crim.App. 2007). Therefore, we give almost total deference to the trial court’s rulings on questions of historical fact and application of law-to-fact questions that turn on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673. However, when application of law-to-fact questions do not turn on the credibility and demeanor of the witnesses, we review the trial court’s rulings on those questions de novo. Id.           The statement of the accused may be used in evidence if it was freely and voluntarily made without compulsion or persuasion. Tex. Code Crim. Proc. Ann. art. 38.21 (Vernon 2005). In deciding whether a statement was voluntary, we consider the totality of the circumstances in which the statement was obtained. Creager v. State, 952 S.W.2d 852, 855 (Tex.Crim.App. 1997). A confession is involuntary if circumstances show that the defendant’s will was “overborne” by police coercion. Id. at 856. The defendant’s will may be “overborne” if the record shows that there was “official, coercive conduct of such a nature” that a statement from the defendant was “unlikely to have been the product of an essentially free and unconstrained choice by its maker.” Alvarado v. State, 912 S.W.2d 199, 211 (Tex.Crim.App. 1995).           Based on the evidence provided at the suppression hearing, the totality of circumstances show that Appellant knowingly and voluntarily gave his statement after being given his Miranda warnings. The record does not show that Appellant was under duress or that Detective Carr coerced him by using improper promises or undue physical or mental influence. The interview was relatively short, lasting less than an hour, and was not taken in abnormally adverse conditions. At no point did Appellant request an attorney or indicate that he wanted to terminate the interview.           There is nothing inherently inappropriate about the nature of police questioning in this case. “Courts have long acknowledged the legitimate role of interrogation in the investigation of crime.” Vasquez v. State, 179 S.W.3d 646, 657 n.7 (Tex.App.–Austin 2005), aff’d, 225 S.W.3d 541 (Tex.Crim.App. 2007). A defendant’s mental condition alone is not determinative of the voluntariness of the confession but is only one factor to be considered. Penry v. State, 903 S.W.2d 715, 744 (Tex.Crim.App. 1995), cert. denied, 516 U.S. 977, 116 S. Ct. 480, 133 L. Ed. 2d 408 (1995). The question becomes one of whether the accused’s mental impairment is so great that it rendered him incapable of understanding the meaning and effect of his statement. Casias v. State, 452 S.W.2d 483, 488 (Tex.Crim.App. 1970). Further, while emotional confusion brought about by the stress of the situation is relevant to the voluntariness determination, it is only one of the circumstances to be considered. Licon v. State, 99 S.W.3d 918, 925-26 (Tex.App.–El Paso 2003, no pet.) (“mere emotionalism or confusion alone will not render a confession inadmissible”).           Appellant’s demeanor throughout the interview was calm and lucid. He did not appear delusional or under the influence of drugs. Detective Carr testified that Appellant’s fear stemmed from “what he had done and the consequences,” not the result of mistreatment. Viewing the evidence in its totality, we find the trial court did not abuse its discretion in denying Appellant’s motion to suppress. Appellant’s sole point of error is overruled. Conclusion           The trial court’s judgment is affirmed.                                                                              Patrick A. Pirtle                                                                                  Justice Do not publish.         m List 1 Accent 6"/>   NO. 07-09-0369-CR                                                      IN THE COURT OF APPEALS                                          FOR THE SEVENTH DISTRICT OF TEXAS                                                                    AT AMARILLO                                                                        PANEL C                                                                 MARCH 22, 2010                                             ______________________________                                                         SHAUN HEATH BROOKS,   Appellant                                                                                v.                                                           THE STATE OF TEXAS,   Appellee                                          _________________________________                         FROM THE 251st DISTRICT COURT OF RANDALL COUNTY;                                     NO. 20486-C; HON. ANA ESTEVEZ, PRESIDING                                            _______________________________                                                                          ORDER                                            _______________________________   Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.             Shaun Heath Brooks, appellant, appeals a conviction from the offense of possession of a controlled substance and a sentence of twelve months in a state jail facility.  Appellant timely perfected this appeal by filing notice of appeal on November 12, 2009.  Subsequently, counsel for appellant has asked for and received an extension of time in which to file appellant’s brief.  On March 19, 2010, this Court received appellant’s second motion for extension of time in which to file the brief wherein an additional thirty days was requested.  Counsel cited as good cause for the second extension simply that “counsel has been involved in numerous other cases, trials and hearings.”             Those convicted of criminal acts are entitled to effective assistance of counsel on appeal.  The failure of counsel to timely prosecute an appeal falls short of rendering such assistance.  To avoid the latter circumstance from occurring at bar, we hereby grant appellant an additional twenty-one days in which to file his brief and order L. Van Williamson, SBN 21624550, 1017 W. 10th, Amarillo, Texas, 79101, to prepare and file a brief in this cause on behalf of his client, Shaun Heath Brooks, in compliance with the Texas Rules of Appellate Procedure.  Mr. Williamson is further ordered to file said brief with the clerk of this Court at 501 S. Fillmore, Suite 2-A, Amarillo, Texas, in a manner assuring that it will be personally received by said clerk on or before 5:00 p.m. on April 8, 2010.  Failure to comply with this directive will result in a hearing directing Mr. Williamson to show cause why he should not be held in contempt.                                                                                       Per Curiam Do not publish.

01-03-2023

09-09-2015

https://www.courtlistener.com/api/rest/v3/opinions/997317/

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT LARKEN MANAGEMENT, INCORPORATED, Plaintiff-Appellant, and LARKEN HOTELS LIMITED PARTNERSHIP, No. 97-2625 Plaintiff, v. SMWNPF HOLDINGS, INCORPORATED; SHEET METAL WORKERS' NATIONAL PENSION FUND, Defendants-Appellees. LARKEN MANAGEMENT, INCORPORATED, Plaintiff-Appellee, and LARKEN HOTELS LIMITED PARTNERSHIP, No. 98-1057 Plaintiff, v. SMWNPF HOLDINGS, INCORPORATED; SHEET METAL WORKERS' NATIONAL PENSION FUND, Defendants-Appellants. Appeals from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Chief District Judge. (CA-96-1574-A) Argued: October 28, 1998 Decided: November 30, 1998 Before WILKINSON, Chief Judge, and LUTTIG and MOTZ, Circuit Judges. _________________________________________________________________ Affirmed by unpublished opinion. Judge Luttig wrote the opinion, in which Chief Judge Wilkinson and Judge Motz joined. _________________________________________________________________ COUNSEL ARGUED: L. Richard Williams, GRANT, WILLIAMS, LAKE & DANGERFIELD, P.C., Phoenix, Arizona, for Appellant. John O'Brien Clarke, Jr., HIGHSAW, MAHONEY & CLARKE, P.C., Washington, D.C., for Appellees. ON BRIEF: Mark C. Dangerfield, GRANT, WILLIAMS, LAKE & DANGERFIELD, P.C., Phoenix, Arizona; Mark Fox Evans, REID & PRIEST, L.L.P., Washington, D.C., for Appellant. _________________________________________________________________ Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). _________________________________________________________________ OPINION LUTTIG, Circuit Judge: Larken Management, Inc. ("LMI") appeals a district court verdict denying its claim to a hotel that appellee SMWNPF Holdings, Inc. ("Holdings") owns. Holdings cross-appeals the district court's denial of its counterclaim for attorney's fees and other litigation costs. For the reasons that follow, we affirm. 2 I. Holdings owns a Doubletree hotel in Nashville, Tennessee, which it purchased in 1991. Holdings is a wholly owned subsidiary of the Sheet Metal Workers' National Pension Fund ("Fund"), which at the time was a partner with LMI's predecessor (Larken Properties, Inc.) and with Larken, Inc., in Larken Holdings Limited Partnership ("LHLP"). Ed Williams, former manager of investments at the Fund, was then Vice-President of Holdings. Stewart DeVore and Meg Car- rell were the chief lawyers for the Larken entities. LHLP had originally planned to purchase the Doubletree, with the Fund contributing financing. But in July 1991, LHLP missed an inter- est payment on a previous loan from the Fund, raising concerns about its financial viability. At an August 23, 1991, meeting of Williams, DeVore, and officials of Larken Properties, the parties agreed to mod- ify the deal so that Holdings would take title to the Doubletree. DeVore drafted an Assignment Agreement to carry out this modifica- tion. Williams objected to several clauses, particularly ones stating that Holdings would hold the Doubletree in trust for LHLP and even- tually convey it to LHLP. DeVore thus prepared a second draft omit- ting the "in trust" and "convey" language. The sale closed in September, with Holdings taking title to the Doubletree. Williams, however, signed the first draft, by mistake he claims. Years passed, and Holdings continued to hold the Doubletree with- out protest from LHLP. Even though LHLP was managing the hotel, it claims that it "lost track of the Doubletree" and failed to notice its rights under the Assignment Agreement that Williams had actually signed. In 1994, LHLP filed for bankruptcy. In its comprehensive list of assets, which it was required to file with the bankruptcy court, LHLP failed to list the Doubletree. In its disclosure statement, LHLP stated that under the Reorganization Plan "title to all of the Hotels and all of the Cash Flow will be delivered to" various LHLP creditors, such that "no present assets will remain with the reorganized Debtor." As part of the Plan, the Fund's interest in LHLP ended. The Fund and LHLP also, pursuant to the Plan and the bankruptcy judge's order, entered into a Release of most of their claims against each other. The 3 judge's final order, which took effect in September 1994, provided, pursuant to 11 U.S.C. § 1141, that "[t]he Debtor, all holders of Claims and Interests and all other parties in interest are hereby bound by the Plan." Over a year and a half later, in April 1996, after"discovering" the signed Assignment Agreement, LHLP asked the bankruptcy court to reopen the Plan to allow it to list its claim to the Doubletree. The bankruptcy judge denied the motion. In January 1997, Holdings sued DeVore and Carrell in federal court in Texas, alleging that they had represented Holdings, not LHLP, in the Doubletree deal, and that they had committed malprac- tice and breached fiduciary duties in allowing Williams' "mistake." On October 6, 1997, that court granted summary judgment against Holdings on the malpractice claim, holding that DeVore and Carrell were LHLP's attorneys and, in the alternative, that they acted reason- ably. SMWNPF Holdings, Inc. v. DeVore , No. 4:97-CV-033-A (N.D. Tex. 1997). Fifteen days later, following a bench trial, the district court issued its decision in the suit before us, which LMI had filed in November 1996 on behalf of LHLP. The court found numerous grounds for rejecting LMI's claim to the Doubletree: res judicata, based on the bankruptcy Plan; the Release; judicial estoppel; equitable estoppel; and ERISA. The court also rejected LMI's state-law fraud claim as barred by the statute of limitations and failing on the merits. Finally, the court rejected Holdings' counterclaim for attorney's fees and other litigation costs as "damages" for breach of the Release, and refused as "moot" LMI's motion to file DeVore as supplemental authority. II. With regard to the res judicata effect of the bankruptcy Plan, we affirm on the reasoning of the district court. LHLP could have raised its claim to the Doubletree during the bankruptcy proceeding; it did not; and LMI has offered no good reason for this failure. See gener- ally In re Varat Enterprises, 81 F.3d 1310 (4th Cir. 1996); Sure-Snap Corp. v. State Street Bank & Trust Co., 948 F.2d 869 (2d Cir. 1991). 4 Res judicata is no less appropriate as a consequence of the bank- ruptcy court's denial of the motion to reopen the Plan. The bank- ruptcy court held that its denial of the motion barred "reopening the Chapter 11 case to pursue the potential Doubletree Hotel claim in this Court." Because of the "limited scope" of the hearing on the motion to reopen, which "prevented the parties from fully litigating" res judi- cata and related issues, the court stated that its order "should not be interpreted to preclude Debtor from pursuing any cause of action for recovery of the Doubletree Hotel in any other jurisdiction." This rul- ing merely states that the denial of the motion to reopen should not be treated as preclusive, because the hearing on that motion had been limited. It says nothing about the res judicata effect of the Plan itself. On the contrary, and as the district court found, in order to deny the motion to reopen, the bankruptcy court necessarily had to find that LHLP could have raised its claim to the Doubletree during the bank- ruptcy proceeding. With regard to the meaning of the Release, which the district court held bars LMI's suit for the Doubletree, we also affirm on the reason- ing of the district court. As to Holdings' counterclaim for breach of the Release, we agree with the district court that the American Rule bars an award of attorney's fees and other litigation costs as "dam- ages" for such a breach, unless the release provides for them. See Bunnett v. Smallwood, 793 P.2d 157, 162 (Colo. 1990). It is simple for parties to include such a clause in a release, and the American Rule prevents haggling over whether a breach is"obvious," as the alternative rule requires. See Artvale, Inc. v. Rugby Fabrics Corp., 363 F.2d 1002, 1008 (2d Cir. 1966) (holding that where release is silent regarding attorney's fees for a breach, court will allow them "only for suits brought in obvious breach or otherwise in bad faith"). Other rules already provide remedies for bad faith suits. See Fed. R. Civ. P. 11. Because the Release is silent on attorney's fees, the district court properly ruled against Holdings. We see no reason to reach the issues of judicial estoppel, equitable estoppel, and ERISA, since both res judicata and the Release suffice to defeat LMI's claim. With regard to LMI's state-law fraud claim, to the extent that res judicata and the Release do not bar it, we affirm on the reasoning of the district court. 5 Finally, we reject LMI's assertion that DeVore , issued two weeks before the district court's decision, bolsters its claim via collateral estoppel. Although the district court should have considered the possi- ble preclusive effect of DeVore, its failure to do so does not under- mine its judgment. LHLP argues that the court in DeVore held (1) that DeVore and Carrell had no reason to know of Williams' alleged mistake and (2) that Williams did not make a mistake. We agree that the court made the first holding, but that does not alter the res judicata effect of the bankruptcy Plan or the force of the Release. We disagree with LMI's claim that the Texas court made the sec- ond holding. On the contrary, it did not reach the issue of whether Williams made a mistake, nor did it need to. The court stated that DeVore and Carrell knew that Williams had in his possession both versions of the agreement. They knew [Holdings] anticipated reconvey- ing the Doubletree to LHLP in the near future. They knew that . . . the document he signed was short, to the point, and needed no explanation. The [ ] language that Williams has recently testified that he specifically reviewed was sur- rounded by the trust and conveyance language . . . .[DeVore and Carrell] could reasonably have believed that Williams's execution of the [first] assignment agreement was consistent with the way the transaction was supposed to occur. This passage considers only the perspective of DeVore and Carrell, not that of Williams. The only issue before the court was the reason- ableness of DeVore and Carrell's behavior, and that was all that it decided. Because issue preclusion requires that an issue "have been actually determined in the prior proceeding," Ramsay v. INS, 14 F.3d 206, 210 (4th Cir. 1994), we cannot find preclusion on this issue, even assuming that such would be relevant. CONCLUSION For the reasons stated herein, we affirm the judgment of the district court. AFFIRMED 6

01-03-2023

07-04-2013

https://www.courtlistener.com/api/rest/v3/opinions/997382/

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 98-7001 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus ROBERT DION SAVOY, Defendant - Appellant. Appeal from the United States District Court for the Eastern Dis- trict of Virginia, at Alexandria. Claude M. Hilton, Chief District Judge. (CR-90-398-A, CA-94-1179-AM) Submitted: November 19, 1998 Decided: December 21, 1998 Before HAMILTON and WILLIAMS, Circuit Judges, and BUTZNER, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Robert Dion Savoy, Appellant Pro Se. Mark Joseph Hulkower, Herbert W. Mondros, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia; Richard Joseph Pietrofeso, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Robert Dion Savoy appeals the district court’s order denying his motion filed under 28 U.S.C. § 2255 (1994) (current version at 28 U.S.C.A. § 2255 (West 1994 & Supp. 1998)). We have reviewed the record and the district court’s opinion and find no reversible error. Accordingly, we affirm on the reasoning of the district court. United States v. Savoy, Nos. CR-90-398-A; CA-94-1179-AM (E.D. Va. Aug. 5, 1996). See Lindh v. Murphy, 521 U.S. 320 (1997). We dispense with oral argument because the facts and legal conten- tions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 2

01-03-2023

07-04-2013

https://www.courtlistener.com/api/rest/v3/opinions/1866928/

(2008) GREAT AMERICAN INSURANCE, CO., Plaintiff, v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA., a Pennsylvania corporation, and Lexington Insurance Company, a Delaware corporation as the insurers of their additional insured, General Asphalt Company, a Florida corporation., Defendants. No. 05-21427-CIV. United States District Court, S.D. Florida. July 7, 2008. ORDER GRANTING MOTIONS FOR SUMMARY JUDGMENT JAMES LAWRENCE KING, District Judge. THIS CAUSE is before the Court upon (1) the Defendant National Union Insurance Company's ("National Union") Cross-Motion for Summary Judgment (DE # 125) concerning its counterclaim seeking reimbursement of sums it paid to settle claims against General Asphalt during the underlying litigation and (2) the Defendant Lexington Insurance Company's ("Lexington") Motion for Summary Judgment (DE # 135) concerning Great American Insurance Company's ("Great American") claim against Lexington for attorney fees and costs. These motions have been fully briefed. After careful consideration of the written submissions and relevant case and statutory law, the Court concludes that National Union and Lexington are entitled to judgment as a matter of law and grants both National Union's Motion for Summary Judgment and Lexington's Motion for Summary Judgment. Factual Background Great American filed a declaratory judgment action against National Union and Lexington as the insurers of the additional insured, General Asphalt Company, Inc. ("General Asphalt"), asking the Court to determine (1) the meaning of the phrase "maintenance of traffic" in a contract entered into by General Asphalt and Bob's Barricades ("Bob's") on May 1, 2002 ("the Subcontract"), (2) whether National Union was liable for the settlement amounts paid during the underlying litigation against General Asphalt, and (3) whether Lexington was liable for Great American's attorney fees and costs to defend General Asphalt during the underlying litigation. This case arises from the settlement of an action in a Florida state court in which Mayra Suarez, as guardian of Yurely Pearce and Jennifer B. Morales-Pearce, a minor, sued General Asphalt and Bob's Barricades for negligent maintenance of traffic through a "work zone" area (the "Suarez lawsuit")[1]. According to the Complaint in the underlying state action, Yurely Pearce was driving on State Road 836 when she lost control of her car and struck an asphalt roller parked on the shoulder of State Road 836 between NW 57th Avenue and NW 72nd Avenue in Miami, Florida. In the underlying suit, it was alleged that both Bob's Barricades and General Asphalt were each negligent in the performance of the maintenance of traffic on State Road 836 and that, as a direct and proximate result of the negligence of Bob's and General Asphalt, Yurely Pearce was injured. On January 24, 2005, the underlying case proceeded to jury trial before the Honorable Frederica Smith. After Judge Smith ruled on multiple motions in limine, the underlying Plaintiffs and Bob's settled for the sum of $1 million (the "Bob's Settlement Agreement").[2] In the Bob's Settlement Agreement, the underlying Plaintiffs released any future claims against any other parties on the basis of vicarious liability arising from Bob's actions. General Asphalt and Great American assert that they were unaware of the terms of the Bob's Settlement, Agreement at any time prior to the instant action. After the Bob's Settlement Agreement was finalized, the trial between the underlying Plaintiffs and General Asphalt continued for two weeks through jury selection, the Plaintiffs' case, and a case of the defense, until the underlying Plaintiffs and General Asphalt agreed to a settlement in open court on February 3, 2005. A final, fully executed settlement agreement was entered into by the underlying Plaintiffs and General Asphalt on April 14, 2005 (the "General Asphalt Settlement Agreement"), for the sum of $7.25 million. According to the General Asphalt Settlement Agreement, General Asphalt, "by and through certain insurers, shall pay the sum of Seven Million Two Hundred and Fifty Thousand Dollars ($7,250,000.00) on or before April 30, 2005 .... As part of the settlement sum, National Union ... will make a payment of ... $3,125,000.00.... Liberty Mutual Incorporated will pay $3,000,000.00 of the total settlement sum, and Great American ... will pay $1,125,000.00 of the total settlement sum. No payment shall constitute an admission or waiver of any kind." (General Asphalt Settlement Agreement, pg. 3, ¶ 3). On May 27, 2005, Great American filed the instant action, seeking declaratory judgment that the "[Great American] Excess Policy was not required to provide coverage for and to pay any portion of the settlement in the [Suarez lawsuit] and that [Great American] is entitled to and shall recover from National Union ... the sum of $1.125 million paid as a part of the settlement with Mayra Suarez."[3] In its Amended Complaint, Great American states that the settlement payments "were made without prejudice to [the insurance companies'] right to a subsequent determination as between those insurers and National Union and Lexington as to whether the coverage of Great American was ever properly available and at risk in the action brought by Mayra Suarez and whether the amounts paid by Liberty Mutual were properly apportioned and allocated between the insurers." (Amended Complaint, pg. 15, ¶ 41). On September 28, 2007, this Court granted National Union's Motion for Summary Judgment concerning the claim that National Union should reimburse Great American for the amount that Great American paid as part of the General Asphalt Settlement Agreement. The Court reasoned that, even if General Asphalt was covered as an additional insured under the National Union Policy, National Union could not be responsible for more than its pro rata share of the General Asphalt Settlement Agreement, which it had already paid. In addition to its claim against National Union, Great American also filed a claim against Lexington, alleging that Lexington had the duty to defend General Asphalt in the underlying lawsuit and seeking to recover attorney's fees and costs incurred by Great American in its defense of General Asphalt. Lexington filed its Answer to the Amended Complaint on September 30, 2005, denying that it had a duty to defend General Asphalt in the underlying action because, inter alia, the allegations in the Complaint for that action did not fall within the coverage of Lexington's Policy. National Union filed an Amended Counterclaim on October 18, 2005, seeking to recover the $3,125,000.00 it paid to fund the settlement and declaratory relief that, inter alia, General Asphalt is not covered as an additional insured under the National Union Policy. Standard of Review Rule 56(c) of the Federal Rules of Civil Procedure authorizes summary judgment where the pleadings and supporting materials establish that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A court's focus in reviewing a motion for summary judgment is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.1997). The moving party has the burden to establish the absence of a genuine issue as to any material fact. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Tyson Foods, Inc., 121 F.3d at 646. Once the moving party has established the absence of a genuine issue of material fact, to which the nonmoving party bears the burden during trial, the nonmoving party must go beyond the pleadings and designate "specific facts showing that there is a genuine issue for trial." Celotex v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Issues of fact are genuine only if a reasonable jury, considering the evidence presented, could find for the nonmoving party. See Anderson, 477 U.S. at 247-51, 106 S.Ct. 2505. In determining whether to grant summary judgment, the district court must remember that "credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Id. at 255, 106 S.Ct. 2505. A mere scintilla of evidence in support of the non-moving party's position is insufficient, however, to defeat a motion for summary judgment. See id. at 252, 106 S.Ct. 2505. If the evidence is merely colorable or is not significantly probative, summary judgment is proper. See id. at 249-50, 106 S.Ct. 2505. Finally, the "[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to `secure the just, speedy and inexpensive determination of every action.'" Celotex, 477 U.S. at 327, 106 S.Ct. 2548. Analysis The question presented is whether General Asphalt was covered as an additional insured under the policies issued to Bob's by National Union and Lexington. To answer this question, this Court analyzes the language of the Subcontract, the Lexington Policy, and the National Union Policy. According to the Lexington Policy, an additional insured is defined as any entity given such designation in the Subcontract. The Subcontract, in pertinent part, reads: "Subcontractor shall furnish a certificate of insurance [which] name[s] General Asphalt Co., Inc. and Owner as additional insured as to general liability." (Subcontract, pg.6). Thus, it is clear that General Asphalt was an additional insured under the Lexington Policy. However, General Asphalt was only covered under the Lexington Policy for "liability" arising out of "[Bob's] work." (Lexington Policy, pg. D-4). Additionally, the National Union Policy clarifies that the operative underlying policy was the Lexington Policy. That is, if the Lexington Policy—as the primary policy—provided coverage for General Asphalt as an additional insured for the accident, the National Union Policy—as the umbrella policy—also provided coverage for General Asphalt as an additional insured. National Union asserts that neither the failure to place delineation devices (e.g.cones) around the asphalt roller in the clear zone nor the failure to transport the asphalt roller to a secure location outside the clear zone, the conduct upon which the underlying Complaint was based, were part of "[Bob's] work." The contract between General Asphalt and the Miami-Dade Expressway Authority (the "Contract"), in pertinent part, reads: 1. TRAFFIC CONTROL SHALL BE IN ACCORDANCE WITH THE PROJECT PLANS. THE CURRENT EDTION OF FLORIDA DOT ROADWAY AND TRAFFIC DESIGN (STANDARD INDEXES f600 SERIES) THE STANDARD SPECIFICATIONS FOR ROAD AND BRIDGE CONSTRUCTION AND THE MANUAL ON UNIFORM TRAFFIC CONTROL DEVICES AS MINIMUM CRITERIA. (Pretrial Stipulation, pg. 12). Thus, General Asphalt contractually agreed to perform its work in accordance with the Standard Indexes. Standard Index No. 600, in pertinent part, reads: Above ground hazards [ (i.e., any object, material, or equipment other than traffic control devices that encroaches upon the travel way that is located within the clear zone, is greater than 4" in height, and is firm and unyielding) ] are to be considered work areas during working hours and treated with appropriate work zone traffic control procedures. During non-working hours, all objects, materials and equipment that constitute an aboveground hazard must be stored/placed outside the travel way and clear zone and be shield by a barrier or crash cushion. (Index No. 600, pg. 2). The questions of whether the accident occurred during working hours or whether the asphalt roller was within the clear zone are not dispositive. Specifically, the instant action can be resolved as a matter of law by determining the scope of "[Bob's] work." This Court rules, as a matter of law, that the transportation of the asphalt roller (or providing notice to General Asphalt that the asphalt roller needed to be transported) was not part of "[Bob's] work." The Subcontract (dated May 1, 2002) merely states that Bob's was responsible for the "Maintenance of Traffic." (Subcontract, pg.1). This phrase is neither given a definition nor provided any other meaning by the contract. The parties do not dispute that Bob's completed a bid on March 27, 2002 (the "Bid"), for this project. The parties only dispute whether the Bid is part of the Subcontract due to the fact that the Bid was not signed by a General Asphalt representative. Even assuming the Bid is not part of the Subcontract, this Court analyzes the Bid to ascertain meaning for the ambiguous phrase "Maintenance of Traffic." See Friedman v. Virginia Metal Prods. Corp., 56 So.2d 515, 517 (Fla.1952) ("Where either general language or particular words or phrases used in insurance contracts are `ambiguous', that is, doubtful as to meaning, or, in the light of other facts, reasonably capable of having more than one meaning so that the one applicable to the contract in question cannot be ascertained without outside aid, extrinsic evidence may be introduced to explain the meaning."); Gulf Cities Gas Corp. v. Tangelo Park Serv. Co., 253 So.2d 744, 748 (Fla. 4th DCA 1971) ("Where the language of a contract is ambiguous or unclear as to a particular right or duty, the court may receive extrinsic evidence to the contract for the purpose of determining the intent of the parties at the time of the contract."). The Bid, in pertinent part, reads: Following is a quote for maintenance of traffic required for the above job. The lump sum price includes the post-mounted construction signs, barricades, cones, hi intensity lights, and target arrows. It also includes the labor for the set-up and pick-up of 1) either a single or double lane closure or 2) a ramp closure. (Bid, pg.1) (emphasis added). The only labor referred to in the bid concerns the set-up and pick-up of lane and ramp closures. Furthermore, the Bid quoted a price for the "Lump Sum Maintenance of Traffic" as $92,500.00—the same amount codified in the Contract. Thus, the Bid constitutes valuable insight into the intent of the contracting parties. It would be unreasonable for a jury to find that the responsibility for the subsequent removal or transportation of the asphalt roller would reside with a party other than General Asphalt, who both owned the asphalt roller and initially placed it at the particular location where the accident occurred (each of which are undisputed facts). The deposition of Robert A. Lopez Sr., who was an employee of General Asphalt, supports this legal conclusion. He testified that "General Asphalt moves its own equipment [ (i.e., the asphalt roller)]." (Deposition, pg.103). In sum, this Court concludes that the phrase "Maintenance of Traffic" did not include the labor associated with transporting an asphalt roller owned by General Asphalt. Similarly, this Court rules, as a matter of law, that: the placement of delineation devices (e.g., cones) around the asphalt roller was not part of "[Bob's] work." Again, the Bid lists the set-up and pick-up of lane and ramp closures as the only labor for which Bob's is responsible. Thus, based upon these undisputed facts, a reasonable jury could not find that Bob's was responsible for the placement of delineation devices around the asphalt roller under any circumstances (e.g., working or non-working hours, within or outside the clear zone, etc.). This legal conclusion is overwhelmingly supported by the record before this Court. First, during a deposition conducted on February 24, 2004, Robert A. Lopez, Sr. testified that his understanding was that General Asphalt did not require Bob's to place delineation devices around the asphalt roller. (Deposition, pg.103). Second, in an affidavit given on December 30, 2004, Robert Lindquist, who was Vice President of a separate road and highway company in Florida and has personal knowledge of industry practices, stated that "[t]he term `maintenance of traffic' in the road construction industry does not include the provision of inspection and maintenance of the clear zone with regard to equipment, material and supplies of the general contractor, or any contractor on the project, by a barricade company such as Bob's ... in this case." (Affidavit, pg.2, ¶ 6). Third, Thomas Brady, who is an employee of Bob's and drafted the Bid, stated in an affidavit that it was neither his understanding with regard to this particular contract nor general industry practice for the phrase "maintenance of traffic" to "include inspecting or maintaining the clear zone, whether that be during work hours or non-work hours." (Affidavit, pg.2, ¶ 5). Fourth, in an affidavit given on December 30, 2004, Eric Runyon, who was Vice President of Bob's and negotiated the Subcontract on behalf of Bob's, stated that [t]he term `maintenance of traffic' is a generic term. In the contracts Bob's [ ] enters into it means the provision of signage and barricades or other maintenance of traffic items such as arrow boards and variable message signs. It does not mean, and has never meant the provision of inspection and maintenance of the clear zone for the general contractor or other contractors on the project at any time, whether or not during work hours. (Affidavit, pg.4, ¶ 16) (emphasis added). In sum, this Court rules that no reasonable jury could find that the placement of delineation devices around the asphalt roller was part of "[Bob's] work." Even assuming that a reasonable jury could find that placement of delineation devices was within "[Bob's] work," such a finding would be inconsequential due to the fact that the failure to place delineation devices around the asphalt roller was clearly not the cause—either actual or proximate—for the accident. On April 4, 2006, all parties in the instant action stipulated that regardless of fault, the failure to place the delineation devices around the asphalt roller was not the proximate cause of the injuries to Ms. Pearce. It is undisputed her vehicle was out-of-control, skidding sideways with no chance of recovery for over 130 feet before it crashed into the asphalt roller, and, it is undisputed the delineation devices would provide absolutely no cushion for the crash. (Pretrial Stipulation, pg. 10). This Court finds that Great American's subsequent attempt to assert causation is unpersuasive. Great American fails to allege with any specificity how the placement of delineation devices around the asphalt roller would have prevented the accident. Thus, this Court further rules, in the alternative and as a matter of law, that the failure to place delineation devices around the asphalt roller was not the cause of the accident. Accordingly, no reasonable jury could find "liability" against Bob's for the accident. Due to the fact that the underlying injuries did not arise from "[Bob's] work," General Asphalt was not covered as an additional insured for this accident under either the Lexington Policy or the National Union Policy. Thus, this Court rules that National Union is entitled to recover (from Great American) the amount of their contribution for the settlement of the claim against General Asphalt in the underlying litigation. Additionally, this Court rules, as a matter of law, that Great American is not entitled to recover attorney fees and costs. Great American asserts that, because the Complaint for the underlying litigation alleged that General Asphalt was covered as an additional insured under the Lexington Policy, Lexington owed a duty to defend General Asphalt on all claims. See Travelers Indem. Co. of Illinois v. Royal Oak Enters., Inc., 344 F.Supp.2d 1358, 1365 (M.D.Fla.2004) ("The insurer's duty to defend is not affected by the merits of the third party's claim or the likelihood that the claim will ultimately be successful; an insured is entitled to a defense by its insurer against even the most frivolous suit, so long as it describes an occurrence within coverage."). However, as previously discussed, this Court rules that the transgressions alleged in the Complaint for the underlying litigation were not part of "[Bob's] work." Thus, unlike Travelers, the Complaint did not allege an occurrence within coverage (even assuming the accuracy of the factual allegations). See Lawyers Title Ins. Corp. v. JDC (Am.) Corp., 52 F.3d 1575, 1583 (11th Cir.1995) ("If the alleged facts and legal theories do not fall within a policy's coverage, no duty to defend arises.") Therefore, Lexington did not have a duty to defend General Asphalt. See Triple R Paving, Inc. v. Liberty Mut. Ins. Co., 510 F.Supp.2d 1090, 1094-95 (S.D.Fla.2007) (declining to issue a declaratory judgment granting attorney fees because the "claim at issue ... did not obviously arise out of [the subcontractor's] operations, which are the only operations to which the indemnification clause in the contract applies"). Conclusion Accordingly, after a careful review of the record and the Court being otherwise fully advised, it is ORDERED and ADJUDGED that National Union's Motion for Summary Judgment (DE # 125) and Lexington's Motion for Summary Judgment (DE # 135) are hereby GRANTED. NOTES [1] Mayra Suarez, as Guardian of Yurely Pearce, et al. v. General Asphalt Co., Inc. and Bob's Barricades, Inc., 02-30115 CA 21. [2] Lexington paid the amount of this settlement, in accordance with its coverage policy with Bob's. [3] On September 13, 2005, Great American filed an Amended Complaint [D.E. # 23]. This Declaratory Judgment claim, however, was not amended.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/1867016/

574 F.Supp. 373 (1983) INSURANCE COMPANY OF NORTH AMERICA and Asplundh Aviation, Inc., Plaintiffs, v. CITY OF NEW HAVEN, James E. Malarky and Edgar Schoonmaker, Defendants. INSURANCE COMPANY OF NORTH AMERICA and Asplundh Aviation, Inc., Plaintiffs, v. UNITED STATES of America, Defendant. Civ. A. Nos. N-76-312, N-77-139. United States District Court, D. Connecticut. October 6, 1983. *374 Thomas Wilson, Groton, Conn., James Courtney, Sussman, Shapiro, Wool, Brennan, Gray & Faulkner, New London, Conn., for plaintiffs. Frank Santoro, Asst. U.S. Atty., New Haven, Conn., Kathlynn Fadely, Trial Atty., Torts Branch, Civil Branch, Dept. of Justice, Washington, D.C., for defendant United States of America. Charles Albom and Karen Nash, Corp. Counsel, New Haven, Conn., Paul McNamara, Bridgeport, Conn., for defendants City of New Haven, James E. Malarky and Edgar Schoonmaker. MEMORANDUM OF DECISION ZAMPANO, Senior District Judge. The plaintiff, Insurance Company of North America ("INA"), as the subrogee of its insured, plaintiff Asplundh Aviation, Inc. ("Asplundh"), instituted these consolidated actions to recover stipulated damages of $300,000 to a Cessna Citation corporate jet which crashed on takeoff from Tweed-New Haven Airport on October 16, 1974. The crash occurred when the aircraft suddenly lost power after its engines ingested seagulls during takeoff. Under various tort causes of action, the plaintiff sues the City of New Haven in diversity, Civil Action N-76-312, and the United States, Civil Action N-77-139, under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80. During the bench trial, 13 witnesses testified, numerous exhibits were filed, and the Court and counsel visited the site of the accident. The Court would be remiss if, at the outset of this opinion, it did not commend counsel for their exceptional trial performance and for their comprehensive memoranda of facts and law. I. FACTUAL BACKGROUND A) The Tweed-New Haven Airport The Tweed-New Haven Airport is a small airport which is owned and operated by the City of New Haven, Connecticut under its proprietary function. The airport's two runways are located less than two thousand feet from Long Island Sound: Runway 02/20 is 150 feet wide and runs generally north-south for 5,600 feet and Runway 14/32 is 150 feet wide and runs generally east-west for 8,300 feet. During the months of September and October 1974, approximately 100 planes flew in and out of the airport on a daily basis, of which 15 were jet-type aircraft. The jet traffic consisted largely of corporate aircraft and one commercial air carrier, Allegheny Airlines, which carried a total of over 2,000 passengers in this two month period. In 1974, the Federal Aviation Administration ("FAA") maintained a facility at the airport in a glass enclosed tower elevated 45 feet above ground in an area adjacent to the runways. The controllers, who were on duty between 6:00 A.M. and 12 midnight daily, provided air traffic control services to aid in the safe, orderly and expeditious flow of air traffic. They performed all their duties from their positions in the tower and did not physically go onto the runways to inspect for hazards. Physical inspections of the runways, taxiways, and surrounding areas were carried out daily by two employees of the airport. At 6:00 A.M. when the tower opened, Eddie Jinks would drive his vehicle onto the runways to check for any conditions that might be hazardous to air traffic. Between 7:00 A.M. and 8:00 A.M., Peter Gagliardi, the field foreman at the airport, *375 would conduct a similar inspection. As a general rule, neither Jinks nor Gagliardi would inspect the runways again unless they were specifically requested to do so by airport management or the FAA controllers. B) Bird Hazard — In General During the mid-1960's, it became increasingly apparent to those involved in aviation that birds were a serious hazard to air traffic, particularly to propjets and full jet aircraft. The engines of these planes have large air intake openings which are likely to ingest birds. The birds, when ingested, may damage one or more of the rotating blades of an engine which, in turn, break off or bend the other rotating blades in the engine. The result is that the compressors in the engine become inoperative and the plane loses its power. The most dangerous times for bird-aircraft strikes to occur are when planes are taking off or landing. Data gathering and intensive analysis of the problem commenced in the 1960's and continue to this date. From April 1961 to June 1967, over 2,000 bird-plane strike incidents were reported to the Air Transport Association, most of which involved jet aircraft. Over 80 per cent of the strikes occurred when planes were leaving from or arriving at airports. More strikes took place in the month of October than in any other month of the year. Studies revealed that a total of 73 species of birds were involved in bird-plane strikes from 1961 to 1967. Gulls and waterfowl were the most common species damaging aircraft. The Herring Gull and the Ringed-billed Gull are of particular concern to air traffic in the Northeast. The Herring Gull averages 24 inches in length, has a wing span in excess of 40 inches, and generally weighs approximately three pounds. The Ringed-billed Gull is similar to the Herring Gull but somewhat smaller. These migratory birds tend to nest in the New England area, usually along the Atlantic seacoast on rocky inlets, sandbars and breakwaters. At trial, Dr. William H. Gunn, a biologist who specialized in the study of bird behavior, presented a comprehensive description of gulls' day-to-day activities, particularly as they relate to bird-aircraft strikes. The gulls roost at night and then start in their quest for food about 30 minutes before sunrise, usually along the beaches and shorelines. However, in periods of rain, heavy wind, or storms, the birds move inland for protection and to search for earthworms for food. Dr. Gunn also noted that gulls are not strong flyers and are unable to move rapidly into the air and gain flight. Undisturbed, they fly about individually but, if suddenly disturbed, they take off as a group facing the wind and as they get airborne are usually densely packed. C) Bird Hazard at Tweed-New Haven Airport There is little question that in 1974, and for a long time prior thereto, gulls presented a hazard to air traffic at Tweed-New Haven Airport. Jinks and Gagliardi testified that during inclement weather they observed gulls on and near runways over 75 per cent of the time. At times they were required to remove dead, mangled gulls from the runways. Edgar Schoonmaker, the Assistant Manager of the airport, stated that on stormy days marked by rain and wind the bird hazard at the airport could be rated as a seven on a scale of one to ten. In the year prior to the accident in question, 30 bird-plane strikes were noted by airport personnel, two of which were serious enough to force the aircraft to abort the takeoff. Written management directives referred to "gulls and other birds" as constituting hazards to aircraft and instructed employees to clear the runways of birds promptly when observed. The testimony of airport personnel confirmed Dr. Gunn's opinion that Herring Gulls and Ringed-billed Gulls would be especially attracted to the airport during rainy weather. Dr. Gunn pointed out that these gulls, roosting less than 2,000 feet from the airport property, would be likely to fly onto the runways in search of earthworms that had escaped to the concrete surfaces from rain saturated soil. Dr. *376 Gunn further explained that these gulls would tend to congregate on airport property during inclement weather because there they could establish firm footing on the runways and see for long distances in all directions. D) The Accident On October 16, 1974, Senior Captain Alan Cornell and co-pilot Frank McKeon were assigned by their employer, Asplundh, to fly the company's Cessna Citation from Philadelphia Airport to Tweed-New Haven Airport to pick up a passenger, William Neidig, for a return flight to Philadelphia. Cornell was an experienced pilot who had flown the Cessna Citation for more than 16 months and had logged 869 hours of his 3,659 hours total aviation time in this aircraft by the time of the accident. Co-pilot McKeon had 275 hours of flight time in the Cessna Citation out of a total aviation time of 532 hours. Cornell was quite familiar with Tweed-New Haven Airport, having piloted planes into it at least two dozen times prior to 1974; McKeon had never flown into the airport prior to the time of the accident. The Cessna Citation was a six passenger plane with twin rear mounted jet engines affixed approximately five feet above the ground. The aircraft was 30 feet in length, 18 feet high at the highest point of the tail, with wing spans of 30 feet. The pilot sat on the left side of the plane with the co-pilot next to him on the right side. Prior to takeoff from Philadelphia at about 5:30 A.M. on October 16, Cornell went to the local Flight Service Station to obtain weather data. He also checked to see if the Tweed-New Haven Airport had issued any Notice To Airmen ("NOTAM") warnings, which are designed to alert pilots to conditions (closed runways, bird hazards, construction, etc.) on or near the airport that may affect the safe operation of an aircraft. No NOTAMs concerning the airport were on file. After takeoff, Cornell and McKeon flew to Tweed-New Haven Airport under IFR (instrument flight rules) without incident, and landed shortly after 6:00 A.M. in foggy, rainy weather. Official sunrise was 7:03 A.M. The aircraft was parked in the ramp area in front of the tower and terminal building facing the threshold of Runway 02/20. During the landing and parking procedures, neither pilot noticed any gulls in the vicinity. The plane remained in the ramp area until passenger Neidig's arrival. At 6:49 A.M., Cornell requested and received clearance from the ground controller for the return flight to Philadelphia. Cornell then proceeded, as instructed, to the taxiway for Runway 02/20 to prepare for takeoff. At this point, despite the limited visibility, copilot McKeon observed one or two gulls in the area adjacent to Runway 02/20, but did not report the sighting to Cornell. When the aircraft reached Runway 02/20, the local controller ordered Cornell to "hold short" to permit a Navajo plane to land on that runway. The Navajo, a twin-engine, piston prop plane, touched down at a point slightly north of the Cessna Citation's hold short point. Within a minute later, at 6:58 A.M., the Cessna Citation began its takeoff roll down the runway. After travelling 2,000 feet, the plane achieved the necessary speed for takeoff. At this moment, Cornell observed gulls in front of the aircraft moving upward from right to left. Simultaneously, the pilots heard birds striking the windshield and sides of the plane. The left engine completely lost power, the right engine started to fluctuate, and the cabin filled with smoke. Cornell, realizing that the engines had ingested gulls and that the aircraft was no longer functional, aborted the takeoff by cutting off all power to the engines and applying the brakes. The aircraft skidded down the runway, went through a fence, and came to rest in a creek. Damage to the plane totalled $300,000. II. NEGLIGENCE OF THE CITY OF NEW HAVEN The parties agree that the traditional rules of negligence are applicable in this *377 case. The plaintiffs must prove that the City of New Haven owed them a duty of due care, that this duty was breached, and that the breach of duty was the proximate cause of the loss. See, e.g., Coburn v. Lenox Homes, Inc., 186 Conn. 370, 372, 441 A.2d 620 (1982); Merhi v. Becker, 164 Conn. 516, 521, 325 A.2d 270 (1973). A) The Duty Owed Under Connecticut law, the City of New Haven, as the owner and operator of a public airport, has "the duty of exercising reasonable care and control to protect its invitees from dangers which might reasonably be anticipated to arise from the conditions of the premises or the activities taking place there." Merhi, 164 Conn. at 520, 325 A.2d 270. See also Kopjanski v. Festa, 160 Conn. 61, 65, 273 A.2d 692 (1970); Warren v. Stancliff, 157 Conn. 216, 218, 251 A.2d 74 (1968). As pointed out hereinbefore, the occurrence of bird-plane strikes was, within the aviation world, a recognized hazard, particularly with respect to jet aircraft. The problem was known to be acute at airports located near the Northeast seacoast where large flocks of Herring, Ringed-billed and other gulls migrated to roost along the shores. The record demonstrates that the management at Tweed-New Haven Airport had actual notice of the hazard to aircraft created by birds. The management issued memoranda and directives which reflected that the gulls were a "bird hazard" to aviation. Shift inspectors testified that gulls were present on the premises in substantial numbers from early spring to late fall, particularly in rainy weather. Birds mangled from hitting propellers and planes were often found on the runways. In 1973, during peak bird activity, there were over five bird-plane strikes reported each month, two of which resulted in aborted takeoffs. In sum, the record is replete with evidence that gulls were regular interlopers at the airport and that airport officials knew their presence was or could be a danger to the aviation public. Thus, it is evident to the Court that at all relevant times herein, the City of New Haven owed a duty to pilots using its airport to exercise reasonable care to remedy the existing bird hazard, or at least to warn unsuspecting pilots of the peril. See Safeco Insurance Co. v. City of Watertown, 529 F.Supp. 1220, 1226 (D.S.D.1981); Gothreau v. New York, N.H. & H.R. Co., 148 Conn. 65, 67, 167 A.2d 244 (1961); Romenici v. Trumbull Electric Mfg. Co., 145 Conn. 691, 694, 146 A.2d 416 (1958). B) The Breach of Duty The parties, by way of testimonial and documentary evidence, exhaustively explored various methods to attack the gull problem at the Tweed-New Haven Airport. At the outset, it bears mention that as a practical matter it is impossible to eliminate gulls from intruding upon airport land. The only truly effective way to prevent some offending gulls from retreating to the airport during stormy weather would be to slaughter all the gulls year after year upon arrival at their roosting habitat on Long Island Sound. Obviously, the total, indiscriminate and inhumane massacre of these elegant birds is not a rational solution to the problem. However, several remedial measures were available in 1974 to alleviate the bird hazard at the airport. These include: 1) removing the food supplies which lure the gulls to the property; 2) operating mobile bird-scanning patrols with scare devices throughout the airport; and 3) issuing appropriate NOTAMs to alert pilots to the danger.[1] The question presented is whether, to satisfy its duty of due care, the City of New Haven should have but failed to use one or more of these measures. Land Modification There is no evidence that the City of New Haven failed in its responsibility to *378 make the airport less attractive as a food source for gulls. In 1974, the property had no garbage dumps, refuse heaps, sewer outfalls or other conditions which might have provided alluring food supplies. Undoubtedly, earthworms were on the runways in wet weather and did attract the gulls, but it would be unreasonable to require the airport management to clean the runway of worms. Scare Devices In 1974, and for several years prior thereto, the airport's management and employees were aware of the value of scare devices to disperse gulls resting and eating on the property. The device utilized at Tweed-New Haven Airport involved an employee driving an automobile at and through the flocks of gulls while blowing the car horn. As a general rule, this was done on the shift inspections at 6:00 A.M. and between 7:00 A.M. and 8:00 A.M. It was also employed when a pilot or other person reported the presence of gulls on the runways. This technique had only a limited success because, as Dr. Gunn pointed out, gulls become habituated to the sound of the horn and gradually "learn" that it will not adversely affect them. The gulls merely become annoyed at the sound, fly off momentarily, and then return after the car passes. Employees of the airport confirmed that the car-horn device proved effective only as a short term deterrent. The plaintiffs contend that another more effective method should have been used to disperse the birds. Dr. Gunn testified that a scare device consisting of the broadcast of a recorded gull's distress call was a highly recommended way to discourage the presence of birds on runways. Speaking to the gulls "in their own language," he explained, causes them to "pay attention" and to fly toward the vehicle emitting the distress call. Once the birds flock in the air over the vehicle, Dr. Gunn suggested that a shotgun be used to send "shell crackers" into their midst to frighten them off the property. Occasionally, he advised, one or two birds should be shot "to get the message across that there's real danger in the area." The plaintiffs argue that the airport's failure to utilize this more advanced technique to scare off the gulls constituted a breach of due care. The Court disagrees for several reasons. First, it has not been established, at least to this Court's satisfaction, that the distress call technique was significantly more effective than the use of the car-horn device. The literature on the subject indicated that gulls, particularly Herring Gulls, soon learn to dismiss the call as a signal of danger. Plaintiffs' Exhibit 17. In fact, studies revealed that although the recorded distress call method caused immediate different reactions from the birds than the more conventional scaring devices, "the long term effects are similar." Id. In addition, as Dr. Gunn admitted, use of live ammunition around an airport "may be of very personal concern" to pilots and travellers. Second, considering the state of the art at the time, the Court finds that the use of the car-horn device on the date of the accident was a reasonable exercise of due care under the circumstances. See, e.g., Drible v. Village Improvement Co., 123 Conn. 20, 23, 192 A. 308 (1937). The use of the car-horn device to reduce the bird-aircraft hazard was, at least in 1974, a widely accepted procedure to deter birds. Most airports along the seacoast employed the device. For several years prior to the instant accident, the method proved adequate to disperse the gulls at Tweed-New Haven airport on a day-to-day basis. Although it is true that research was revealing some positive aspects of a distress call program, the procedure in 1974 was still in the experimental stages and not generally known to or utilized by owners and operators of airports. NOTAMs The NOTAM is, and was in 1974, the generally accepted method of advising pilots of a particular danger or condition at an airport which merits their special attention. In 1974, the NOTAMs were available to pilots at their local flight service stations *379 and were printed in the Airman's Information Manual. The management of the Tweed-New Haven Airport knew the value of NOTAMs to pilots using an airport, and had the ability and authority to issue a NOTAM alerting pilots to the bird hazard at the airport. Despite their experience with gulls at the airport and the knowledge that the gulls constituted a peril to air traffic, airport officials failed to issue any type of warning to pilots by way of a NOTAM regarding the probable presence of gulls on the property during certain seasons of the year and under certain weather conditions. It is reasonable to assume that pilots, if on notice that there were bird concentrations at an airport, in the exercise of due care, would take cautionary measures to avoid possible bird strikes. See Safeco, 529 F.Supp. at 1228-29. These might include changes in route and altitude assignments, checking the runways personally before takeoff, requesting airport employees to employ scare devices upon arrival and departure, and other procedures. In the Court's opinion, prudent care required the issuance of a NOTAM concerning the bird-aircraft hazard at the Tweed-New Haven Airport long prior to October 1974. The failure to do so constituted negligence. C) Proximate Cause In Coburn, the Connecticut Supreme Court defined proximate cause as "[a]n actual cause that is a substantial factor in the resulting harm" and emphasized that such a cause "may be found from the contributory negligence" of the plaintiff. 186 Conn. at 383, 441 A.2d 620. See also Magarian v. Bessoni, 160 Conn. 442, 445, 280 A.2d 357 (1971) (proximate cause is found by looking for necessary causal connection between injury and negligent act). Applying these principles to the facts in the case sub judice, the Court is compelled to the conclusion that no negligent act on the part of the Tweed-New Haven Airport was a proximate cause of the Cessna Citation's crash. Cornell testified that even if he had been given a warning of the bird hazard by way of a NOTAM, he would not have done anything differently on the morning of the accident[2] Tr. 3-61, 62. Compare Safeco (finding city liable based on fact that pilot would have used a variety of cautionary procedures on takeoff if NOTAM had warned of bird hazard). In addition, Cornell admitted that on the two dozen occasions he had flown into Tweed-New Haven Airport prior to the accident, he had observed gulls on the airport surfaces. Tr. 3-72, 73. Thus, the failure of the airport to issue a NOTAM concerning the presence of birds on the property could not have misled him and could not have been a proximate cause of the accident. As stated in Stancliff, "[t]he failure to warn an invitee of something he already knows is without legal significance." 157 Conn. at 220, 251 A.2d 74. See also Black v. United States, 441 F.2d 741, 744-45 (5 Cir.), cert. denied, 404 U.S. 913, 92 S.Ct. 233, 30 L.Ed.2d 186 (1971). In the Court's opinion, the proximate cause of the accident was the failure of co-pilot McKeon to communicate to Cornell that he noticed gulls adjacent to Runway 02/20 just prior to takeoff. Tr. 4-20. Cornell had the duty to exercise final judgment on all critical aspects of the takeoff procedures. Necessarily, he was required to be alert to last minute changes in conditions outside the plane. Cornell testified that, had McKeon informed him gulls were in the area of takeoff, he would have sought further information concerning their number, size and location. Tr. 3-118, 119, 123. Cornell was an experienced, competent pilot-in-command. If informed that gulls were near Runway 02/20, he would have had several options open to him. He could have delayed takeoff until he personally surveyed the area to estimate the extent of *380 the hazard. He could have sought further information from the control tower or requested airport employees to clear the area of the gulls. The Court is satisfied that, with a verbal warning of birds near the runway, Cornell would have recognized there was a substantial risk the aircraft would encounter gulls on takeoff and would have taken all necessary precautions to insure safe travel. McKeon was the only person who saw gulls that morning and was under a duty, as second-in-command, to relay that information to Cornell. Tr. 4-10. His failure to do so was the direct and proximate cause of the accident. See Black, 441 F.2d at 744-46; Neff v. United States, 420 F.2d 115, 120-22 (D.C. Cir.1969), cert. denied, 397 U.S. 1066, 90 S.Ct. 1500, 25 L.Ed.2d 687 (1970). III. NEGLIGENCE OF UNITED STATES The plaintiffs claim that the air traffic controllers at the Tweed-New Haven Airport were negligent in failing to advise the crew of the Cessna Citation that gulls were on or near Runway 02/20 on the morning of the accident. The United States acknowledges that its controllers had a duty to warn the plane crew of the dangers apparent to the controllers but claims they did not breach this duty. The Court agrees. The air traffic controllers are not employed to perform physical inspections of the runways. They can only rely on information received from airport management, pilots and on their own observations from the tower. The evidence was uncontroverted that neither controller on duty on October 16 saw or was informed that gulls were in the vicinity prior to the Cessna Citation's takeoff. Under these circumstances, there was no negligence on the part of either controller in granting the plane permission to takeoff. Sellfors v. United States, 16 Av.Cas. (CCH) 17,186, 17,187 (N.D.Ga.1980), aff'd mem., 697 F.2d 1362 (11 Cir.1983). In any event, the Court has found that the co-pilot's failure to report his sighting of gulls to the pilot was the proximate cause of the accident. Even a failure of the air traffic controllers to warn the crew of the danger could not be considered a continuing proximate cause after the co-pilot had discovered the danger. See Black, 441 F.2d at 745. Accordingly, judgment must enter in favor of all defendants and against all plaintiffs. NOTES [1] It was also suggested that a "chemical" method for dispersing birds might have been utilized. However, the chemical control of bird hazards at airports was not yet proven effective in 1974 and even Dr. Gunn questioned its use. [2] This testimony was not surprising. Statistics reveal that only 11 per cent of pilots revise their flight plans because of bird hazards at airports.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/3448139/

Affirming. At its 1928 session, the General Assembly passed "An Act to amend and re-enact an act appearing in chapter ninety-eight, page two hundred and sixty-six of the Acts of the General Assembly of the Commonwealth of Kentucky, one thousand nine hundred and twenty-four, approved on March tenth, one thousand nine hundred and twenty-four, entitled, 'An Act to provide for the construction of sewers in cities of the fourth class, and to provide for the payment of the same, and repealing subsection nine of section three thousand four hundred and ninety, Kentucky Statutes, relating thereto.' " This act was approved by the Governor, and is chapter 88, Acts 1928. This act authorizes the board of council of cities of the fourth class to construct, reconstruct, maintain, *Page 410 alter, repair, or change sewers along or under any of the streets, alleys, or highways of the city, or such other rights of way as it may acquire, and to assess the entire costs, including the construction of intersections to an amount not exceeding $2 per front foot of the abutting property. When, however, the amount of the quotient, after dividing the entire cost of the construction of the sewer, exceeds the sum of $2 per front or abutting foot, then the entire cost of construction of the sewer shall be assessed upon the lots and lands in the district of said sewer which may be benefited thereby according to the benefits received. It is further provided that the construction of such sewer system may include sewage disposal plants, mains, and laterals for the common use and benefit of all the sewers of the city, the cost thereof to be included in and to be a part of the total cost of the construction. The act also provides that, in the construction of such sewer system, the city may incorporate therein any sewers theretofore constructed, which, in the judgment of the board of council, may be proper and suitable for such purpose, and in such event a proper and equitable credit and abatement shall be made on account thereof to the property or the property owners served by such sewers, where same was constructed by such property owners. After the act went into effect the city council of the city of Princeton, a city of the fourth class, passed "An ordinance declaring the necessity for the construction and maintenance of a sanitary sewerage system for the City of Princeton, Kentucky, and providing for the construction of same, together with sewerage disposal works upon the ten-year installment payment plan, and naming the streets, alleys, highways, and public ways and private ways under and along which said sewers will be constructed and describing the property benefited thereby subject to the payment of the same, and declaring and defining the districts in which the same will be constructed." This action was instituted by Gus B. Baker, a citizen, taxpayer, and abutting property owner, to enjoin the city from proceeding with the letting of contracts, and the construction of the sewer system. The case was submitted on an agreed state of facts, which, so far as material, is as follows: Princeton, a city of the fourth class, is governed by a mayor and six councilmen. The ordinance in question was read at two regular sessions *Page 411 of the council. On a yea and nay vote it received the votes of four councilmen. It was then approved by the mayor and properly published. The sewers all empty through one disposal plant, the cost of which is about one-fifth of the cost of the system. The ordinance provides for one main sewer into which all other sewers will empty. Several years ago a judgment for damages was rendered against the city on account of its inadequate sewer system. The present system has been condemned by the state board of health, the county board of health, and the city board of health, as being dangerous to the health and life of the community. The proposed system is one of the best and most economical that can be planned for the city, and meets with the approval of the state and local health authorities. On final hearing, the chancellor adjudged that the city had the right to construct the proposed sewer system and denied plaintiff the relief prayed. Plaintiff appeals. It appears that about 20 years ago the city constructed a small sewer system in its business section, and that this served a few residences, including two belonging to appellant. Any one desiring to connect with the system paid a fee of $20 to the city for the privilege. No further charge was provided, and it is insisted that appellant and others who paid the fee acquired a vested right which the city is without power to interfere with or take away. It is not even claimed that there was a contract giving those who paid the connecting fee sewer privileges for all time to come. Even if there had been, it would have been beyond the power of the city to make. No rule of law is better settled than that the police power may not be bartered away. Goszler v. Georgetown, 6 Wheat. 593,5 L. Ed. 339; Stone v. Mississippi, 101 U.S. 814, 25 L. Ed. 1079; Commonwealth v. Douglass, 100 Ky. 116, 24 S.W. 233, 15 Ky. Law Rep. 581, 66 Am. St. Rep. 328. The mere right to tap a sewer system in consideration of a specified fee is simply a temporary privilege which must yield when it becomes necessary to discontinue the old system, and construct a new system in order to promote the public health. Another contention is that the act and ordinance pursuant thereto are discriminatory, in that they require improved and unimproved property to pay at the same rate. This question has been before the court on several occasions, and it uniformly has been held that sections *Page 412 171 and 172 of the Constitution have no application to assessments for public improvements which confer local benefits. Shaw v. City of Mayfield, 204 Ky. 618, 265 S.W. 13; Katterjohn v. King, 202 Ky. 69, 258 S.W. 960; Vogt v. City of Oakland, 166 Ky. 810, 179 S.W. 1037. The further point is made that the council was without power to create a single district, but should have created several districts to the end that the burden would fall more equally upon the property owners. There is nothing in the act that requires a city council to divide the city into separate districts. On the contrary, the whole matter is left to the sound discretion of the board of council, City of Jackson v. Riffle, 219 Ky. 689, 294 S.W. 142; Little v. Town of Southgate et al., 221 Ky. 604, 299 S.W. 587, and the courts are without authority to interfere, even though they may believe it would be more advisable to adopt a different plan. In conclusion, we may add that the act fully protects and safeguards the rights of the abutting property owners by giving them an opportunity to be heard, and vesting the board of council with the power to make such corrections or adjustments in the estimate or apportionment of cost as may in its judgment be just and equitable. We agree with the chancellor that the city has the power to construct the proposed sewer system in accordance with the terms and conditions contained in the ordinance. Judgment affirmed.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/1028783/

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-8602 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DANIEL WOODS, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. John Preston Bailey, Chief District Judge. (3:05-cr-00025-JPB-JES-1) Submitted: April 23, 2009 Decided: May 4, 2009 Before MICHAEL, GREGORY, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Daniel Woods, Appellant Pro Se. Thomas Oliver Mucklow, Assistant United States Attorney, Martinsburg, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Daniel Woods appeals the district court’s order denying his motion for reconsideration of the denial of his motion for reduction of sentence under 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See United States v. Woods, No. 3:05-cr-00025- JPB-JES-1 (N.D.W. Va. Dec. 8, 2008). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 2

01-03-2023

07-05-2013

https://www.courtlistener.com/api/rest/v3/opinions/2963286/

Court of Appeals of the State of Georgia ATLANTA,____________________ September 17, 2015 The Court of Appeals hereby passes the following order: A16D0022. IN THE INTEREST OF K. S., A CHILD. The Juvenile Court of Gwinnett County adjudicated K. S. delinquent and entered its order of disposition. K. S. filed a motion for new trial, which the trial court denied. K. S. then filed an application for discretionary appeal from the denial of his motion.1 OCGA § 15-11-3 authorizes direct appeals from “final judgments of a juvenile court judge.” Additionally, a final order in an adjudication of delinquency case is directly appealable. See In the Interest of T. M., 303 Ga. App. 322 (693 SE2d 574) (2010). We will grant an otherwise timely discretionary application if the lower court’s order is subject to direct appeal. See OCGA § 5-6-35 (j). Accordingly, this application is hereby GRANTED. K. S. shall have ten days from the date of this order to file a notice of appeal with the trial court. If, however, he has already filed a notice of appeal from the order at issue, he need not file a second notice. The clerk of the trial court is DIRECTED to include a copy of this order in the record transmitted to the Court of Appeals. 1 The trial court denied the motion for new trial on June 4, 2015. K. S. moved for an extension of time to file his application, which this Court granted. The application was timely filed within the additional time provided by this Court. Court of Appeals of the State of Georgia 09/17/2015 Clerk’s Office, Atlanta,____________________ I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written. , Clerk.

01-03-2023

09-21-2015

https://www.courtlistener.com/api/rest/v3/opinions/1867681/

574 F. Supp. 170 (1983) ELLIS CORPORATION, an Illinois corporation, Plaintiff, v. TEAM TEXTILE CORPORATION, a Pennsylvania corporation, Defendant. No. 82 C 7832. United States District Court, N.D. Illinois, E.D. November 17, 1983. *171 Raymond J. Kelly, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., for plaintiff. Stanley J. Adelman, C. Mark Kingseed, Sonnenschein, Carlin, Nath & Rosenthal, Chicago, Ill., for defendant. ORDER BUA, District Judge. Before the Court is the defendant's Motion to Dismiss or Transfer or, in the Alternative, to Stay the Action. For the reasons stated herein, the Motion to Dismiss is denied, the Motion to Transfer is granted, and the Motion to Stay is denied. The parties entered into a contract in 1980 under which plaintiff was to manufacture and sell certain commercial laundry equipment to defendant which was to be installed at defendant's Houston, Texas facility. When the equipment allegedly failed to function as expected, defendant stopped paying on the contract, causing plaintiff to file the instant lawsuit on December 22, 1982. Five days later, on December 27, 1982, defendant sued plaintiff in the United States District Court for the Southern District of Texas seeking rescission of the contract, general and consequential damages arising from the alleged malfunctioning of the goods sold, and damages for violation of the Texas Deceptive Trade Practices Act. Subject matter jurisdiction is based on diversity of citizenship. 28 U.S.C. § 1332. I. The Motion to Dismiss for Lack of Personal Jurisdiction Defendant Team Textile Service Corporation (Team) first claims that this Court, sitting in Illinois, has no personal jurisdiction over it and therefore, that the cause should be dismissed. Team is a Pennsylvania corporation with its main offices in Houston, Texas. It claims that it is not licensed to do business in Illinois and in fact does not do business in Illinois. Furthermore, it claims that no part of the transaction which forms the basis of the instant lawsuit took place in Illinois. Plaintiff argues that, at very least, the transaction took place in part in Illinois. Under the Illinois Long-Arm Statute, a non-resident defendant submits to the jurisdiction of the courts located in Illinois when the cause of action, inter alia, arises from the transaction of any business within the state. Ill.Rev.Stat. ch. 110 ¶ 2-209(a)(1) (1981). This provision has been interpreted as requiring that the foreign defendant's business in Illinois at least be related to the cause of action. Volkswagen Insurance *172 Co. v. Whittington, 58 Ill.App.3d 621, 625, 16 Ill. Dec. 179, 374 N.E.2d 954 (1978). Determination of whether a defendant has performed acts sufficient to have submitted to the jurisdiction of a particular forum state is based upon the due process notions of whether requiring him to defend therein is reasonable and does not offend "`traditional notions of fair play and substantial justice.'" International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed. 95 (1945), quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S. Ct. 339, 342, 85 L. Ed. 278 (1940). This determination, in turn, is made on a case-by-case basis taking into account the quality of the defendant's activities in the forum state in the context of the circumstances presented. Braband v. Beech Aircraft Corp., 72 Ill. 2d 548, 21 Ill. Dec. 888, 382 N.E.2d 252 (1978). A single business transaction, however, is sufficient for personal jurisdiction. Cook Associates, Inc. v. Colonial Broach and Machine Co., 14 Ill. App. 3d 965, 304 N.E.2d 27 (1973). In the case at bar, the parties contracted following negotiations which were conducted in part by defendant placing a telephone call to plaintiff's offices in Illinois.[1] At no time did any representatives of defendant physically come to Illinois. Once the terms of the contract were memorialized, the proposed terms were sent to defendant in Texas where the document was signed and returned to plaintiff in Illinois for acceptance. The contract specifically provided that it did not become binding until accepted by plaintiff, an event which occurred in Illinois. The products were manufactured in Illinois and delivered, F.O.B. Chicago, Illinois, in Texas where they were installed and used by defendant. When defendant failed to make payments on the goods, Louis E. Schutt, plaintiff's controller, called Houston but was instructed to contact defendant's parent corporation, Dometic, in Bloomington, Illinois which was taking care of the payments. Schutt contacted Dometic and discussed the delinquent payment problem. Subsequently, a check for roughly $158,000, drawn on a Bloomington, Illinois bank, was received. On another occasion, on August 20, 1980, a check for $105,000 was received, also from Bloomington, Illinois. Defendant Team Textile admits that from October, 1979 through May, 1981, its corporate books and records were maintained in Bloomington, Illinois. It also admits that during that time period, payments on its debts were made by its parent, Dometic, out of the Bloomington, Illinois office. However, it denies that it ever did business in Illinois and maintains that all other corporate functions took place in Houston. This Court need not determine that defendant was doing business in Illinois in order to assert personal jurisdiction over it despite the fact that a persuasive argument could be made in support thereof based on Team's apparent interrelatedness with Dometic, an Illinois based entity. Instead, the court need only find that the transaction which lies at the heart of this suit was in some way related to this forum. This may be done with ease. In Kropp Forge Co. v. Jawitz, 37 Ill.App.2d 475, 186 N.E.2d 76 (1st Dist. 1962), the court held that either the making of the contract itself or the activity in furtherance of it in Illinois was sufficient to constitute the transaction of business in Illinois. While in the case at bar, the parties cannot agree whether the contract was made in Illinois by defendant's admission, it was at least partially performed here by defendant. This factor is sufficient to constitute the transaction of business in Illinois. Defendant has therefore submitted to jurisdiction in an Illinois forum, thus *173 requiring that the Motion to Dismiss be denied. II. The Motion to Transfer Venue In addition to moving to dismiss, defendant has moved to transfer the instant matter to the Southern District of Texas, Houston Division, where its later filed case against the plaintiff is currently pending. Under 28 U.S.C. 1404(a), a district court, for the convenience of parties and witnesses, in the interest of justice, may transfer any civil action to any other district where it might have originally been brought. Before a transfer can be made under the statute, subject matter jurisdiction and venue must be technically proper in the transferor court. Chicago R.I. & P.R. Co. v. Igoe, 212 F.2d 378 (7th Cir. 1954); Wilmot H. Simonson Co. v. Green Textile Associates, Inc., 554 F. Supp. 1229 (N.D.Ill.1983). These requirements have been met in the instant case. In support of its motion, defendant notes that most of the nonparty ... witnesses in the case reside in Texas and would not be subject to compulsory process in Illinois. In addition, defendant claims that the cost of producing the witnesses, among them party witnesses, whose testimony would be available in Illinois, would be prohibitive and would severely impair its ability to continue operations during trial. Moreover, defendant claims that it would ask that the jury be allowed to view the equipment so that demonstration of the alleged defects would be simplified. This equipment, of course, is located in Houston and could not be moved. Finally, defendant argues that the interests of justice require the Court to grant the transfer motion. Among the factors cited in support of this argument is the fact that plaintiff would not be unduly burdened by the transfer because of its extensive contacts and dealings in Texas. In addition, defendant notes that all relevant facts and events surrounding the solicitation and formation of the contract, as well as a majority of the performance of it, transpired in Texas. Plaintiff essentially disagrees with each factor cited by defendant and claims that it would be burdened with hardship were the instant matter transferred to Texas. Plaintiff claims that because it is incorporated in Illinois and does business here, it would be forced to transport its witnesses and other evidence to Texas. Additionally, plaintiff notes that the goods in question were designed and manufactured in Illinois and that defendant would not be burdened by trial in Illinois because of its presence in the state at its parent company's offices located in Bloomington. Plaintiff correctly notes that transfer should not be granted when to do so would merely shift, rather than eliminate, the inconvenience to the parties. Bodine's, Inc. v. Sunny-O, Inc., 494 F. Supp. 1279, 1286 (N.D.Ill.1980). However, in this Court's view, the burden which defendant would be required to face if the matter were litigated in Illinois is far greater than that which would be imposed upon plaintiff were transfer ordered. While plaintiff's choice of forum is important, it is of reduced value where, as here, the chosen forum lacks significant contact with the underlying cause of action Hotel Constructors, Inc. v. Seagrave Corp., 543 F. Supp. 1048 (N.D.Ill.1982). Notwithstanding its jurisdictional connection with Illinois, the instant case is really a cause of action which arose in Texas and is strongly related to that forum. At the time that defendant apparently chose to withhold the payments due under the contract, the payments were being made from Texas. Indeed, even when the payments were being sent from Illinois they were not sent from this judicial district as Bloomington, Illinois, from which the payments originated, is located in McLean County which is in the Central District of Illinois. 28 U.S.C. § 95(b). The choice not to pay was made because of the malfunctioning and nonperformance of the product which occurred solely in Texas. The product is presently located in Texas and cannot be moved without the incurrence of unreasonable *174 expense. Because the central issue in this case revolves around the performance of the product, access to the product in both the discovery and trial stages is a necessity. Thus, regardless of where the case proceeds, plaintiff would be required to bear the burden of obtaining access to the product in Texas so that it may properly try its case. In any event, it would be required to transport many of its witnesses to Texas so, at very least, inspection of the product and other discovery could be undertaken.[2] While the Court is constrained to transfer venue based on convenience, in the instant matter, the final determination actually requires a balance of inconvenience. While no forum would be wholly convenient for both parties, it is the opinion of this Court that the Houston, Texas forum is the more preferable one as it is quite convenient for defendant and imposes less of a burden on plaintiff than would be imposed on defendant were the matter litigated here. This is especially true in light of the fact that the Northern District of Illinois, located in Chicago, while technically a proper venue, has little actual connection with the cause of action. Conclusion For the reasons stated herein, defendant's Motion to Dismiss for lack of personal jurisdiction is denied, but the Motion to Transfer to the United States District Court for the Southern District of Texas, Houston Division, is granted. The Motion to Stay Proceedings is denied. IT IS SO ORDERED. NOTES [1] Such conduct alone is insufficient to give rise to personal jurisdiction. Nu Way Systems of Indianapolis, Inc. v. Belmont Marketing, Inc., 635 F.2d 617, 619 (7th Cir.1980); Woodfield Ford, Inc. v. Akins Food Corporation, 77 Ill. App. 3d 343, 32 Ill. Dec. 750, 395 N.E.2d 1131 (1st Dist. 1979). [2] Plaintiff relies heavily upon the well reasoned opinion of Judge Marshall in Ronco Inc. v. Plastics, Inc., 539 F. Supp. 391 (N.D.Ill.1982) in support of its position. In Ronco, the Court weighed many of the same factors involved in the case at bar in concluding that transfer to Texas would be inappropriate. However, unlike in the case at bar, in Ronco the defendant who sought transfer had sold products to an Illinois corporation and had them shipped into Illinois. In the case at bar the opposite is true. Moreover, in Ronco it was clear that the contract had been entered into in Illinois and that Illinois law was controlling. In the case at bar, it is unclear at this point which state's law controls the contract as the parties dispute exactly where the contract was entered into.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2899698/

NO. 07-08-0457-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B FEBRUARY 27, 2009 ______________________________ ASHLEY MCCALL STOKES, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE COUNTY COURT AT LAW NO. 1 OF POTTER COUNTY; NO. 121,944; HONORABLE W. F. “CORKY” ROBERTS, JUDGE _______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. ON ABATEMENT AND REMAND           Following a plea of guilty to the offense of driving while intoxicated appellant, Ashley McCall Stokes, was sentenced to confinement in the county jail for 120 days and was fined $500. The jail sentence was then probated for 18 months. The clerk’s record was filed on December 15, 2008.           Texas Rule of Appellate Procedure 25.2(a)(2) requires that a trial court shall enter a Certification of Defendant’s Right of Appeal each time it enters a judgment of guilt or other appealable order. Tex. R. App. P. 25.2(a)(2); Hargesheimer v. State, 182 S.W.3d 906, 911 (Tex.Crim.App. 2006). An appeal must be dismissed if the certification has not been made part of the record under the applicable rules. Tex. R. App. P. 25.2(d). An appellate court that has an appellate record that includes a certification is obligated to review the record to ascertain whether the certification is defective. Dears v. State, 154 S.W.3d 610, 615 (Tex.Crim.App. 2005).           Pursuant to an amendment to Rule 25.2(d), which became effective on September 1, 2007, the certification of defendant’s right of appeal must be signed by the defendant and a copy must be given to her. Tex. R. App. P. 25.2(d). Additionally, the certification shall include a notice that the defendant has been informed of her rights concerning appeal, as well as her right to file a pro se petition for discretionary review.           The clerk’s record does not contain a certification of appellant’s right to appeal. Furthermore, it does not reflect whether a copy of the certification was given to the defendant nor does it indicate whether the defendant was given the required admonishments. Furthermore, our letter of December 17, 2008, directed the trial court to file a certification within 30 days. Additionally, our letter directed the trial court clerk to file a supplemental record containing the certification within 15 days from the date the certification was filed. To date, this court has not received a supplemental clerk’s record containing a properly executed certification. See Tex. R. App. P. 34.5(c)(1).           Consequently, we abate this appeal and remand the cause to the trial court for further proceedings. See Tex. R. App. P. 34.5(c)(2). Upon remand, the trial court shall utilize whatever means necessary to secure a Certification of Defendant’s Right of Appeal in compliance with Rule 25.2(d). Once properly executed, the certification shall be included in a supplemental clerk’s record and filed with the Clerk of this Court on or before March 16, 2009. Id.           This order constitutes notice to all parties of the defective certification pursuant to Rule 37.1 of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 37.1. If a supplemental clerk’s record containing a proper certification is not filed in accordance with this order, this matter will be referred to the Court for dismissal. See Tex. R. App. P. 25.2(d).           It is so ordered.                                                                 Per Curiam   Do not publish. ium Shading 2 Accent 3"/> NO. 07-10-0234-CV   IN THE COURT OF APPEALS   FOR THE SEVENTH DISTRICT OF TEXAS   AT AMARILLO   PANEL B   JULY 13, 2010     In re JOHNNY LEE REY, Relator     Memorandum Opinion     Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. Pending before the court is the petition of Johnny Lee Rey for a writ of mandamus.  Rey asks that we direct the Honorable Ana Estevez, District Judge, 251st Judicial District, to act upon a pending motion and to void an “Order to Withdraw Inmate Funds” (Order to Withdraw).  We deny the petition.             The motion in question involved Rey’s effort to have the trial court vacate the aforementioned Order to Withdraw.  The trial court acted upon that motion by denying it on June 25, 2010.  A true and correct copy of that order is attached to this opinion as exhibit A.  Thus, the portion of Rey’s petition asking us to direct the trial court to act upon his motion is now moot. To the extent that the trial court issued the Order to Withdraw and now denied Rey’s motion to strike or otherwise vacate it, the appropriate avenue for relief available to him is via appeal.  Harrel v. State, 286 S.W.3d 315, 321 (Tex. 2009).  Since the Texas Supreme Court has so held, he has an adequate remedy of law and, therefore, is not entitled to relief via mandamus.             The petition for writ of mandamus is denied.                                                                                       Per Curiam                                    Â

01-03-2023

09-09-2015

https://www.courtlistener.com/api/rest/v3/opinions/4268596/

STATE OF VERMONT ENVIRONMENTAL COURT } In re: R.L. Vallee PUD (Spillane’s) - 811 Williston Rd. } Docket No. 100-5-07 Vtec (Appeal of Timberlake Associates LLP) } } Decision and Order on Cross-Motions for Partial Summary Judgment Appellant Timberlake Associates LLP appealed from a decision of the Development Review Board of the City of South Burlington, approving a preliminary plat application by Appellee-Applicant R. L. Vallee, Inc. for a Planned Unit Development (PUD) at Spillane’s Service Center at 811 Williston Road. Appellant is represented by Pamela A. Moreau, Esq. and Liam L. Murphy, Esq; Appellee-Applicant is represented by Thomas G. Walsh, Esq.; and the City is represented by Amanda Lafferty, Esq. Appellant and Appellee-Applicant have each moved for summary judgment on Questions 1 and 21 of the Statement of Questions. The following facts are undisputed unless otherwise noted. Prior to 1987 the .48-acre property at 811 Williston Road, close to the Interstate 89 interchange, was improved with an existing 2,240-square-foot gasoline service station building with eight available fueling positions. In 1987, then-owner Mobil Oil Corporation (Mobil) applied for site plan approval to demolish the existing gasoline service station building, to construct a 1,089-square-foot building for use as a convenience store, and to install two canopies, one on the east side over one gasoline island, and one on the west side over two gasoline islands, with a total of six gasoline dispensers providing twelve fueling positions. The property is in the Commercial 1 zoning district and the Traffic Overlay 1 1 The scheduling order in this matter anticipated that the motions would also address Question 5 of the Statement of Questions; however, Appellants withdrew Question 5 in their July 26, 2007 Motion for Partial Summary Judgment, at p. 1, n.1. 1 zoning district. The proposal included two curb cuts from Williston Road, each to be thirty- five feet in width as shown on the 1987 plan, and proposed to move the existing access to the adjacent property closer to Williston Road. The then-Planning Commission denied the application, which was appealed to the Chittenden Superior Court. The Court also denied the application, due to concerns regarding increased traffic based on the additional fueling positions, and due to concerns regarding left-hand turns from the property to the westbound lanes of Williston Road. The Vermont Supreme Court affirmed the denial in an unpublished decision, In re Mobil Oil Corp., Docket No. 90-212, Entry Order at 2 (Vt. Supreme Ct., Apr. 1, 1992). In the twenty years since the 1987 application, South Burlington has adopted new Zoning Regulations, the latest of which were adopted May 12, 2003 and amended effective October 24, 2006. In the twenty years since the 1987 application, changes may also have been made in the configuration of Williston Road adjacent to and east and west of the property, and to nearby intersections and accesses to other nearby properties; however, material facts regarding such changes have not been provided to the Court2 in connection with the present motions. In early 2007, Appellee-Applicant applied for preliminary plat approval for a planned unit development to retain the now-existing 2,313-square-foot service station building and its now-existing front (north side) canopy and two front (north side) gasoline islands. Appellee-Applicant proposes to change the building’s use to a convenience store and short-order restaurant, and to reduce the number of fueling positions on the existing front gasoline islands from eight to six. Based on the 2007 site plan, the westerly curb cut is proposed to remain at thirty-five feet in width and the easterly curb cut is proposed to 2 In its reply memorandum filed on August 10, 2007, at p. 10, Appellee-Applicant alludes to differences on Williston Road, including the existence of Appellant’s business neighboring the project property. 2 be reduced from 34.8 feet to twenty-five feet in width. The proposal also includes additional striping at the easterly end of the existing raised median curbing in the center of Williston Road, apparently intended to regulate vehicles seeking to exit the property to the left, or westerly, across traffic onto the westbound lanes of Williston Road. The application proposes to remove some existing parking spaces and pavement, and to increase the landscaped areas, so as to reduce the front yard coverage from the existing 90.45% coverage to 70.2% percent coverage, and to reduce the impervious coverage from the existing 91.94% coverage to 69.2% coverage. The Zoning Regulations in effect at the time of the 1987 application for this property required commercial driveways to be a minimum of twenty feet wide and a maximum of thirty-six feet wide. 1985 S. Burlington Zoning Regulations § 19.103(b). The 2006 Zoning Regulations governing Appellee-Applicant’s PUD application do not contain similar numerical requirements; rather, they require that the project incorporate “access, circulation and traffic management strategies sufficient to prevent unreasonable congestion of adjacent roads.” 2006 S. Burlington Zoning Regulations § 15.18 A(3). While the DRB is entitled to reject an application without hearing and render a decision if the issues have been decided in an earlier appeal3 or “involve substantially or materially the same facts by or on behalf of” the applicant, 24 V.S.A. § 4470(a), the DRB is not required to do so. Rather, the DRB, and hence this Court in this de novo appeal, may consider even the same or a substantially similar application if the surrounding physical circumstances or applicable regulations have changed, and may consider a changed 3 The current statute, 24 V.S.A. § 4470(a), in part codifies, for zoning applications, the doctrine of collateral estoppel or issue preclusion, which bars the relitigation of claims already fully adjudicated in a prior proceeding. Trickett v. Ochs, 2003 VT 91, ¶10 (citing In re Central Vermont Public Service Corp., 172 Vt. 14, 20 (2003)). 3 application developed to address the problems for which the earlier application was denied. A successive application4may be presented if “there has been a substantial change in the application or the circumstances.” In re Armitage, 2006 VT 113, ¶8 (citing In re Carrier, 155 Vt. 152, 158-59 (1990)); In re: Murphy Conditional Use Application, Town of Bakersfield v. Murphy, Docket Nos. 134-6-06 Vtec and 168-7-06 Vtec, slip op. at 8-9 (Vt. Envtl. Ct., Nov. 16, 2006). A substantial change in circumstances can occur when there have been changes to the application itself, to address concerns that caused the previous denial, Armitage, 2006 VT 113, ¶9, a change in the physical surroundings of the property, Carrier, 155 Vt. at 158 (citing Rocchi v. Zoning Bd. of Appeals, 248 A.2d 922, 925 (Conn. 1968)), or a change in the governing regulations. In re Miller Subdivision Final Plan (Appeal of Fothergill), Docket No. 178-7-06 Vtec, slip op. at 6-7 (Vt. Envtl. Ct., Mar. 21, 2007); see also DuPage Forklift Serv., Inc. v. Material Handling Serv., Inc., 744 N.E.2d 845, 850 (Ill. 2001) (citing Restatement 2d of Judgments §28(2)). However, if an applicant merely seeks to introduce additional evidence in a successive proceeding that could have been presented in the earlier proceeding, the DRB, and hence this Court, is not required to reconsider the application. In re Armitage, 2006 VT 113, ¶9. While we do not now decide whether the differences in the present application from the 1987 application either meet the requirements of the 2006 Zoning Regulations, or address the 1987 Superior Court’s concerns about the 1987 application, in the present case, Appellant-Applicant is entitled to demonstrate that the intervening changes in the physical circumstances along that stretch of Williston Road, the intervening changes in the Zoning Regulations, or the changes in the proposal, allow the application to be made and allow the DRB, and hence this Court, to consider the application on its merits. 4 This doctrine may be referred to as the “successive application doctrine,” Armitage, 2006 VT 113, ¶6; 24 V.S.A. §4470(a); it embodies the same principles as the doctrine of collateral estoppel. Carrier, 155 Vt. at 158. 4 Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that Appellant’s Motion for Partial Summary Judgment on Questions 1 and 2 is DENIED, and Appellee-Applicant’s Motion for Partial Summary Judgment on Questions 1 and 2 is GRANTED. A telephone conference has been scheduled (see enclosed notice) to discuss whether the present preliminary plat approval appeal should be placed on inactive status pending the DRB’s decision of the final plat approval application, as discussed in the initial conference held in this matter on July 2, 2007 (so that all issues may be heard together on their merits), and to establish the mediation schedule contemplated by the July 3, 2007 scheduling order. Done at Berlin, Vermont, this 17th day of August, 2007. _________________________________________________ Merideth Wright Environmental Judge 5

01-03-2023

04-24-2018

https://www.courtlistener.com/api/rest/v3/opinions/4268592/

STATE OF VERMONT ENVIRONMENTAL COURT } In re: Hartland Group, 237 North Ave. Project } Docket No. 120-6-05 Vtec (Appeal of Bjerke, et al.) } } Decision and Order Appellants Alan Bjerke, Valerie Hockert-Lotz, Edward Winant, Annelein Beukenkamp-Winant, James Bumpas and Molly Bumpas appealed from the decision of the Development Review Board (DRB) of the City of Burlington, granting Appellee-Applicant Hartland Group, LLC’s application for approval of a project consisting of twenty-five condominiums and a restaurant-café at 237 North Avenue. Appellants are represented by Paul S. Gillies, Esq. and Appellant Alan A. Bjerke, Esq.; Appellee-Applicant is represented by Brian Dunkiel, Esq. and Ronald A. Shems, Esq.; and the City is represented by Kimberlee J. Sturtevant, Esq. Certain issues in this appeal were resolved on summary judgment.1 An evidentiary hearing was held in this matter before Merideth Wright, Environmental Judge, and a site visit was taken with the parties and their representatives. The parties were given the opportunity to submit written memoranda and requests for findings. Upon consideration 1 The decision and order on summary judgment issued in this matter on December 14, 2006, is hereby incorporated in this decision and will not be repeated except as necessary for clarity in this decision. As agreed by the parties at trial and reflected in their post-trial filings, the issues remaining for trial after the resolution of the summary judgment motion were Question 4 relating to the number of parking spaces required for the proposed café, waiver of a loading space, and waiver of parking spaces; Question 5, which contained subsections (a) through (e); Questions 6(a) and 6(b); and Question 9. Question 9 was resolved on the record on the first day of trial. 1 of the evidence as illustrated by the site visit, and of the written memoranda and requests for findings filed by the parties, the Court finds and concludes as follows. Appellee-Applicant proposes to redevelop an existing .65-acre parcel2 of property, currently improved with an existing 16,500 square-foot commercial (warehouse) building, at 237 North Avenue. The building was originally in use as an automobile showroom and dealership. Appellee-Applicant proposes a twenty-five-unit condominium complex and a forty-seat restaurant-café. Appellee-Applicant’s parcel is located at the intersection of North Avenue and Berry Street in a Residential Medium-Density zoning district in the City’s “Old North End” neighborhood. As more fully described and analyzed in the Decision and Order on summary judgment, the commercial warehouse use of the building is nonconforming but holds a valid permit. The proposed residential use is a conforming use in the district; the café is analyzed as a change of a preexisting nonconforming commercial warehouse use under §5.1.8. The café use proposed for the portion of the building fronting on North Avenue will be less harmful or detrimental to the neighborhood than the warehouse use as it is entitled to operate under its existing permit. The project property is roughly rectangular, with the shorter dimension facing the west side of North Avenue. The next street intersecting with the west side of North Avenue to the north of Berry Street is Sunset Court. The northerly lot line of the project parcel is bordered by three residential lots having frontage on Sunset Court. 2 The parcel as a whole encompasses an additional 0.05 acre strip of land on the westerly end of the original parcel (at the top of the cliff), purchased from the City in September 2004. However, a condition of the deed states that the additional parcel “will not be used to calculate allowable density, setbacks or lot coverage to meet zoning requirements for the development” of the original 0.65-acre lot. Accordingly, the calculations regarding density, setbacks and lot coverage in this case have been based upon the 0.65-acre lot size rather than the full 0.7-acre lot size. 2 The southerly lot line of the project parcel runs approximately along the northerly side of Berry Street to the westerly side of the intersection of Berry Street with Lakeview Terrace, where it makes an approximate two-foot jog to the north, and continues towards the west along the northerly side lot line of Appellants Hockert-Lotz and Bjerke’s property. The parcel’s westerly lot line runs at an angle along the top of the cliff above the adjacent city-owned property. Question 6(a) - Major Impact Development criterion §13.1.6(d) (soil erosion or reduction in the capacity of the land to hold water) Appellee-Applicant has argued that the criterion in the Zoning Ordinance regarding soil erosion and the soil’s capacity to hold water is sufficiently similar to criterion 4 of Act 250 so that the positive conclusion in the unappealed Act 250 permit on soil erosion and the soil’s capacity to hold water should conclude this issue in this Court, based on principles of issue preclusion. Trepanier v. Getting Organized, Inc., 155 Vt. 259, 265 (1990); In re Stowe Club Highlands, 166 Vt. 33, 36-37 (1996). It is unnecessary to analyze all the criteria for applying issue preclusion in the present case, and especially “the legal standards and burdens employed in each action” and “the procedural opportunities available in each forum.” Trepanier, 155 Vt. at 265. Rather, the better practice in the present context is to reach the merits of the issue so that this Court’s conclusions are clear, based on the evidence presented in this proceeding. For the purposes of determining runoff, the existing parking area acts as impervious surface even though is partly paved and partly of compacted gravel. Therefore, the impervious surface is not increased even though a greater proportion of the property will be covered with the building. Under current conditions, stormwater runs off the property uncontrolled. The project proposes to collect stormwater falling on the building by conducting it 3 to roof drains and thence to stormwater detention tanks to be located below the floor slab of the parking garage. The tanks will be equipped with access for cleaning. Oil will be separated from the stormwater and the stormwater will be controlled by a slow-release orifice to provide twelve to twenty-four hours of detention time to minimize the effect of a storm on the City’s stormwater system. The project proposes to conduct stormwater falling on the westerly grassed area and ground-level patios to a shallow sedimentation basin located at the westerly end of the property. The proposed stormwater system will reduce the risk of soil erosion and other stormwater pollution after construction. In addition, the erosion prevention and sediment control plan proposed to be followed during construction will prevent unreasonable soil erosion during construction. The capacity of the land to hold water will be improved by the sedimentation tank system and the sedimentation basin. The proposal therefore meets §13.1.6(d) of the Zoning Ordinance. Question 6(b) - Major Impact Development criterion §13.1.6(e) (unreasonable congestion or unsafe conditions with respect to use of the highways) and Question 5 - Design Review criterion § 6.1.10(d) as to traffic Appellee-Applicant has argued that the traffic criteria in the Zoning Ordinance are sufficiently similar to criterion 5 of Act 250 so that the positive conclusion in the unappealed Act 250 permit on traffic should conclude the issue in this Court, based on principles of issue preclusion. For the same reasons as with regard to Question 6(a), the Court will reach the merits of the issue based on the evidence presented in the present case. The proposed residential use will generate approximately eleven to thirteen one- way vehicle trips in the morning and afternoon peak hours or one vehicle trip every five minutes. Unlike the former commercial warehouse, the proposed residential and café uses will not generate any tractor-trailer use on Berry Street or on Lakeview Terrace. Deliveries to the café will be by service vehicles which will park on North Avenue. 4 Although approximately half of the patrons of the café are expected to walk or bicycle rather than to drive to the café, the traffic analysis was performed as if all patrons would drive to the café. Using that assumption, and using local data from a café on a street with similar characteristics on the south side of Burlington, the café is expected to generate approximately 76 one-way trips (46 arriving and 30 departing) in the morning or the Saturday peak hour,3 and is expected to generate 17 one-way trips (11 arriving and 6 departing) in the afternoon peak hour. Approximately 75% of the morning trips and 50% of the Saturday trips would be so-called “pass-by” trips, that is, vehicles that would be on North Avenue anyway but would stop and park to visit the café. These pass-by trips would not generate any additional traffic on North Avenue although they could still have an effect on the traffic due to the parking maneuvers of those vehicles. The peak hour trip generation of the former permitted warehouse use was 22 one-way trips (19 arriving and 3 departing) in the morning peak hour and 22 one-way trips (10 arriving and 12 departing) in the afternoon peak hour. Based on the traffic analysis in evidence, the minor additional traffic generated by the proposal over that generated by the former permitted warehouse use will not adversely affect the substantial volume of traffic already traveling on North Avenue, and will not change the levels of service for any of the directions of use of the intersection at North Avenue and Berry Street. North Avenue to the north of Washington Street and the project location is a relatively wide and open roadway, passing by several large open properties with 3 The morning peak hour for traffic (approximately 1000 vehicles) on North Avenue at this location is from 7:15 to 8:15 a.m., 70% of which is southbound. The afternoon peak hour (approximately 1200 vehicles) is from 4:30 to 5:30 p.m, 59% of which is northbound. The Saturday peak hour (approximately 950 vehicles) is from 11:45 a.m. to 12:45 p.m., 54% of which is southbound. 5 institutional uses, owned by the Archdiocese of Burlington, before reaching the more built- up area beginning three houses north of Sunset Court. Drivers traveling southbound on North Avenue often drive towards Burlington at a relatively high rate of speed appropriate to a more suburban location. Currently, the segment of North Avenue extending from Washington Street to North Street is a high-accident location, primarily in the southbound lane and primarily due to southbound drivers’ lack of attention to conditions when approaching the more built-up area, which features increased congestion, slower traffic, and more turning maneuvers. Appellee-Applicant proposes to install several so-called bulb-outs to serve as traffic- calming measures. These are areas in which the sidewalk is enlarged with curbing into the street, and in which street trees are proposed to be planted. The street trees will not have foliage below a height of ninety-six inches, so that they will not impair visibility. Two bulb-outs are proposed to be installed on the west side of North Avenue, one across from Convent Square (to the north of the project property) and one on the corner of North Avenue and Berry Street; the remaining one is proposed to be installed on Berry Street near the corner of North Avenue. The bicycle lane on the west side of North Avenue will end at the more northerly bulb-out; a bicycle lane also is located on the east side of North Avenue. The more northerly bulb-out will also protect the parking spaces on the west side of North Avenue southerly from that point. From the point of view of traffic safety, the bulb-outs will narrow the roadway and provide a clear visual cue to southbound drivers that they are approaching a more built-up area and need to slow down and be more alert to vehicle slowing and turning movements, as well as to pedestrians and cyclists. The bulb-out at the North Avenue/Berry Street intersection serves the additional function of allowing drivers exiting Berry Street to ‘nose out’ safely farther into the North Avenue right-of-way to have better visibility of oncoming North Avenue traffic for making turning maneuvers. The installation of the bulb-outs will 6 therefore make conditions safer with respect to traffic on the adjoining roadway and will not create undue congestion. The proposal therefore meets §13.1.6(e) and §6.1.10(d) of the Zoning Ordinance. Question 5 - Design Review Criteria § 6.1.10(a) (b), (c) and (j) (other than traffic and parking4) Design Review Criterion § 6.1.10(a) - Relate development to its environment As more fully described in the summary judgment decision, the original building, when in use as an automobile dealership and repair facility, had large display windows for the showroom facing North Avenue; the windows have been bricked in since the prior use of the building for a printing business. The present application proposes to restore the front part of the building, facing North Avenue, to the appearance of the original automobile showroom facade, restoring its windows, and to convert that space for the café use, with the interior space designed to resemble the style of the showroom. The application proposes to expand the building’s footprint towards the west, and to convert the property’s use to a mixed-use building containing twenty-five residential condominiums and an associated garage, as well as the café. The resulting building is designed to have a ground floor that fills the footprint of the building; above that level it is designed with three separate three-story segments, each having two stories above the ground floor. The resulting proposal has the appearance and mass of three smaller buildings above the ground floor. The ground floor contains the parking garage in the central portion of the building, including room for household storage units assigned to the residential units, for bicycle racks, and for the garbage storage for the building. An 4 As to traffic, Question 5(d) (relating to site plan criterion 6.1.10(d)) is addressed with Question 6(b), above; as to parking, it is addressed with Question 4, below. 7 elevator for the central portion of the building is accessible from the garage and from a pedestrian entrance from Berry Street. Vehicular access to the garage is from Berry Street, much closer to North Avenue than the current access to the rear parking lot for the existing building. On the ground floor of the westerly end of the proposed building, three single- story condominium units are proposed, with ground floor patios facing west towards Lake Champlain, and lawn areas landscaped with trees at the westernmost portion of the property. Above the ground floor, the three separate building segments contain the twenty- two remaining condominium units. The eastern building segment, above the café, will contain four two-bedroom condominium units on the second floor and three two-bedroom units on the third floor, and will not have roof terraces. The middle building segment, above the garage, is set back considerably from the northerly side of the ground floor, to minimize its visibility from and to the neighboring properties to the north. It will contain eight two-bedroom condominium units, four on the second floor and four on the third floor. In addition, the windows on the north side of the building have been designed and placed relatively high on the walls so as to minimize any visibility of the neighboring property to the north from those units. The western building segment will contain six two-bedroom condominium units over the three ground floor units: three on the second floor and three on the third floor, as well as one two-story, two-bedroom condominium unit on the second and third floors over the southwesterly corner of the garage, facing Berry Street. A second Berry Street pedestrian entrance to the building, near the intersection of Berry Street with Lakeview Terrace, provides access for the western residential units, and a second elevator provides access to the units on the upper floors. Roof-top terraces are proposed at the southern or Berry Street end of the central building, over the two-story unit at the southern side of the western building overlooking the intersection of Berry Street with Lakeview Terrace, and 8 over the three westerly units. The central building has been designed so that no roof-top terraces overlook the houses to the north on Sunset Court. As well as installing complying exterior lighting on the building, the project proposes to replace outdated street light fixtures along Berry Street with modern street light designed and in locations so as to reduce glare on neighboring properties on Berry Street. Slatted ventilation openings within the garage have been designed to minimize the effects of automobile headlights within the garage on any neighboring properties. The proposed development relates appropriately to its context, which includes multi-family residential, institutional and commercial buildings along both sides of North Avenue, as well as a wide variety of residential buildings along North Avenue, Berry Street, Lakeview Terrace, Washington Street and Convent Square. The area is characterized by a diversity of building styles, materials, heights and roof shapes even among the residential buildings, which are located fairly close together, typical of this older neighborhood within walking distance of downtown Burlington. The visual context includes a large, flat-roofed commercial building just to the north across North Avenue, occupied by a medical equipment and supply business, as well as several institutional buildings set in their own grounds to the north of the project on the same side of North Avenue. Because the proposed project is divided into three masses above the ground floor, is set back from the north side of the ground floor, and is stepped back along its west side, it does not present an inappropriate visual mass. Therefore, as proposed, the project will meet § 6.1.10(a) of the Zoning Ordinance. Design Review Criterion § 6.1.10(j) - Consider the microclimate (including noise) The heating system for the entire building consists of two high-efficiency natural- gas-fired hot water boilers located in the mechanical room next to the café in the northeastern area of the ground floor. Insulated distribution piping distributes the heat to 9 the condominium units and to the café. The heating system is vented to the roof. It has been designed to minimize heat loss and will not appreciably affect the microclimate. The residential units have been designed to have excellent natural ventilation. While unit owners may opt to install an air conditioning cooling system, they will be prohibited by the condominium bylaws from installing window-mounted air conditioning units. Any owner wishing to install air conditioning may do so only by installing a split-system air conditioner with the condenser portion contained in a small unit mounted centrally on the building’s roof. The noise generated by these units is comparable to or less than that generated by window units; however, as they would be mounted on the roof and shielded, any such noise will be less noticeable to the neighbors. The café kitchen is proposed to be equipped with a hood exhaust system with air filters designed to control odor, also vented to the roof of the easterly building. Food waste produced by the café operation will be stored in a refrigerated unit inside the building until it is removed by a commercial waste handling company three times a week. Therefore, with the conditions imposed below, the project as proposed will meet §6.1.10(j) of the Zoning Ordinance. Design Review Criteria § 6.1.10(b) and (c) - Preserve the landscape and Provide open space The project does not propose alterations to the generally level topography of the property except to add a small amount of fill at the westerly end of the property. The open lawn at the westerly end of the property will extend westerly of the ground level patios for the three ground-level units at the westerly end of the building. The existing condition of the property provides very little open space, as that concept is used in the Zoning Ordinance. Although the term “open space” is not defined, the term “landscaped open space” is defined in the Article 30 of the Zoning Ordinance to 10 exclude parking lots or driveways. Similarly, limitations on lot coverage in §5.3.2, et seq. of the Zoning Regulations include both paved and unpaved parking areas in the calculation of lot coverage, and exclude lawns, gardens and unpaved landscaped areas. Because the existing parking lot does not qualify as “open space” under the ordinance, the fact that part of it will be covered by the new building does not created a violation of §6.1.10. Indeed, its formerly nonconforming use as a commercial parking lot will be replaced by a conforming residential use. It is only because the parking lot has not been used recently at the level allowed under the existing permit for the warehouse that the immediate neighbors have been able to enjoy oblique westerly views over portions of the parking lot. The ordinance does not require those views to be preserved in this district, compare §6.1.11(b); the Court is constrained to follow the Zoning Ordinance as it now exists. The small amount of open space on the North Avenue and Berry Street sides of the building will be preserved and attractively landscaped. The setbacks required in this area reflect its medium-density urban location. The existing trees along the south side of the parking lot are not well maintained and are largely non-native species, but in the summer months they do provide a green, leafy appearance when viewed from down Lakeview Terrace looking to the north towards the Berry Street intersection. That area is proposed to be landscaped with trees and shrubs along the building and in the curve of the intersection, including a new street tree at the intersection, to provide a similarly green and leafy appearance looking towards the westerly building entrance. The project proposes planting several trees along the westerly open space area and to provide a more dense hedge of Dark American Arborvitae between the property and that of Appellants Bjerke and Hockert-Lotz. Four cottonwood trees at the boundary between the project property and Appellant Winants’ property to the north are located on the Winant property. This type of tree is fast 11 growing and has weak wood, reflected in its common name. It deteriorates rapidly after reaching maturity. The two more westerly of these trees on the Winant property do not have significant root development on the project property, as observed during non- invasive testing. They are nearing the end of their useful life; one has sustained structural ice storm damage and the other has developed what the consulting arborist characterized as a “threatening lean.” However, they will be protected during construction as the landowner has declined to have them replaced in connection with construction. The two more easterly trees have substantial root systems extending under the existing building slab and turning away from the project property due to this obstruction. These two trees will be protected during construction and, while they would benefit from pruning, they are likely to improve over time due to having more room for their root development as a result of the greater setback of the building in that area. Therefore, with the condition imposed below, the project as proposed will meet §§6.1.10(b) and (c) of the Zoning Ordinance. Question 4 - Parking and waivers (§§10.1.19 and 10.1.20), and Question 5 - Design Review Criterion §6.1.10(d) as to efficient and effective circulation The project proposes an on-site garage under the central part of the building, having thirty parking spaces, nine of which are long spaces designed to accommodate an additional car in tandem.5 Appellee-Applicant proposes to assign one space to each of the twenty-five condominium units, so that each unit will have an assigned space; nine of the units will have an additional tandem space as an amenity. The five remaining spaces in the garage are discussed below with regard to the café parking. Without waivers, the project 5 As discussed in the December 14, 2006 summary judgment decision, §10.1.16 of the Zoning Ordinance precludes the additional tandem spaces from being counted as spaces for the purpose of determining compliance with the parking space requirements. 12 would require fifty parking spaces for the residential units; and would require a loading space for the café, and ten6 parking spaces for the café. Appellee-Applicant conducted a study of the parking availability within a two- minute walk (500 feet) of the project property and within a four-minute walk (1000 feet) of the project property. On-street parking is available along the west side of North Avenue, along Washington Street and Convent Square, along the north side of Berry Street, and along the east side of Lakeview Terrace. An inventory of fifty-eight parking spaces is available within 500 feet and an inventory of approximately 113 spaces is available within 1000 feet. Occupancy rates were surveyed during the peak periods of 7:00 to 8:15 a.m. and 5:00 to 8:00 p.m. The overall occupancy rate did not exceed 50%, even in the higher- occupancy late-evening hours. An average of 34 unoccupied spaces is available within 500 feet and an average of 72 unoccupied spaces is available within 1000 feet. Lakeview Terrace tended to have a higher occupancy rate, with 35% of its sixteen spaces (within 1000 feet) occupied in the early evening hours, and up to 75% occupied after 7:30 p.m. Efficient and effective circulation Circulation of vehicles within the building’s garage will be adequate; parking maneuvers were studied using a template of a relatively large-size passenger vehicle. There is sufficient maneuvering room within the garage for vehicles to be able to exit the garage frontwards, giving the drivers ample visibility to turn safely into a traveled lane of Berry Street. The shift of the outlet of the garage farther east along Berry Street (than the 6 Appellants suggest that the café would require more than ten spaces, figured under Table 10-A of the Zoning Ordinance at one space for every four seats plus one space for each 75 square feet of gross floor area intended for patron use but without seats. However, Appellee-Applicant has committed itself to requiring the café owner or operator, whether through a lease document or a deed, to maintain the café at a combined level of seats and floor area to require no more than ten parking spaces. 13 location of the current exit from the parking lot) reduces the potential for conflict at the Berry Street/Lakeview Terrace intersection. The proposal therefore meets §6.1.10(d) of the Zoning Ordinance as to efficient and effective circulation within and from the property. Parking spaces for the residential units Appellant-Applicant seeks a waiver of 50% of the off-street parking spaces that would otherwise be required, as provided by §10.1.19 of the Zoning Ordinance, based on the availability of alternate transportation modes, and based on data regarding the local availability of unoccupied on-street parking spaces. However, although the City’s parking policies may have changed since the adoption of §10.1.19, the ordinance has not been amended to allow an applicant to demonstrate that “the regulation is unnecessarily stringent” due to the availability of on-street parking spaces. The terms “shared or dual use” and “unique use times,” in the context of the ordinance’s minimum off-street parking requirements, see §10.1.8 and Table 10-A, refers to the shared use of off-street spaces, for example by several businesses in a single building, or the use of the same off-street spaces for a daytime office use and for an evening restaurant use. In the present case, the project does not propose shared or dual use of off-street spaces, except for the two spaces in the garage available for condominium visitors when the café is closed. The project location is relatively close to downtown Burlington and has excellent access to alternate transportation modes. Three CCTA bus stops are located within 500 feet, with one southbound stop within 100 feet. A bicycle lane is located on both sides of North Avenue to the north, and on the other side of North Avenue to the south, with access to the Burlington Bicycle Path. The area is served by pedestrian sidewalks south into downtown Burlington. Due to the availability of alternate modes of transportation and the project’s proximity to downtown commercial uses and employment, an unusually high percentage (28%) of the existing population of this census tract does not use a vehicle for 14 commuting to work, but instead either walks, bicycles, or travels by bus. Vehicle ownership is also low in this district, with households of one to two people (as are anticipated for this project) having 1.08 vehicles per household. Although under §10.1.20 a waiver or more than 50% of the required parking spaces is allowed to be considered for affordable housing units, the evidence did not support the provision of less than one assigned space per unit for the residential units in this project, even though four of the units are anticipated to qualify as affordable housing units. The availability and projected use of alternate transportation modes for this project warrants a waiver of twenty-five of the fifty off-street parking spaces that otherwise would be required for the residential units in this project. Loading space for the café One loading space is required for the café, but may be entirely waived under §10.1.20(d). There is sufficient parking along North Avenue in front of the proposed café to accommodate grocery and other deliveries to the café, as long as those deliveries are scheduled to occur in off-peak daytime hours. Moreover, such deliveries by truck could be accomplished along North Avenue with fewer maneuvers and less reversing than inside the garage entrance, and therefore would require less use of the trucks’ required back-up beeper, which is preferable in a neighborhood with nearby residential uses. The proposal meets the requirements of the ordinance for waiver of the loading space for the café. Parking spaces for the café Without a waiver, the project requires ten off-street parking spaces for the café (see footnote 6 above). Appellant-Applicant seeks a waiver of 50% of the off-street parking spaces that would otherwise be required for the café, as provided by §10.1.19 of the Zoning Ordinance, based on the availability of alternate transportation modes, and based on data 15 regarding the local availability of unoccupied on-street parking spaces. However, Appellee-Applicant also proposed that only the two spaces in the garage nearest the entrance would be allocated to the café use during café hours (and at other times would be available to visitors to the condominiums), while the remaining three spaces in the garage would be allocated as second parking spaces to three of the condominium units. This proposal appears effectively to request a waiver of eight off-street parking spaces for the café use. As discussed above, although the evidence showed ample on-street parking in the area to accommodate the café use between the hours of 7 a.m. and 8 p.m., the ordinance as it currently exists does not allow consideration of the availability of on-street parking to justify a waiver of the off-street parking requirements. Appellant-Applicant did not present evidence of its arrangement for the use of any off-street parking spaces on other commercial or institutional property along North Avenue that could be considered for waiver under the “unique use times” provision of §10.1.19 (or, if within 400 feet, could be considered as providing some of the required parking spaces for the café under §10.1.13).7 While Appellee-Applicant only proposed to allocate two spaces within the garage to the café use, there is no provision in the ordinance allowing waiver of more than 50% of the off-street parking spaces required for the café use. The project does not propose to obtain the use of off-street spaces in any other nearby commercial or institutional location. Accordingly, without consideration of any remote off-street spaces, the maximum allowable waiver under the present ordinance requires that all five of the remaining spaces in the garage be allocated to the café use during the hours of operation of the café. Based on the density of residential occupancy of the surrounding area on both sides 7 Any future proposal under these sections would have to be considered as an amendment application. 16 of North Avenue, and extrapolating from the data on the area residents’ use of other modes of transportation to travel to work, at least 50% of the customers of the café are expected to originate in the surrounding area and to walk or bicycle to the café. Based on the availability and projected use of alternate modes of transportation, and with conditions as imposed below, a waiver of five of the required ten off-street parking spaces for the café is warranted. Based on the foregoing, it is hereby ORDERED and ADJUDGED that the project is approved as proposed, with the conditions imposed by the DRB and the following additional conditions: 1) Window-mounted air conditioning units are prohibited; such prohibition shall also be incorporated in any lease agreement or deed governing any portion of this project. 2) The operation of the café shall be restricted to a size at which it requires no more than ten parking spaces, through a binding legal document such as a lease agreement, deed, or condominium agreement, unless and until the permittee obtains an amendment to this permit with regard to parking. 3) Five spaces within the garage shall be assigned to the café use during café hours, unless and until the permittee obtains an amendment to this permit with regard to parking. 4) As the evidence of the availability of on-street parking for café patrons did not extend past 8:00 p.m., the hours of operation of the café shall not extend past 8 p.m. unless and until the permittee obtains an amendment to this permit with regard to parking. 5) Café food waste shall be stored in a refrigerated unit inside the building until it is removed by a commercial waste handling company. 6) Deliveries to the café shall be scheduled so as not to coincide with the peak hours for traffic along North Avenue. 17 7) If either of the two more easterly cottonwood trees on the boundary of the Winant property that are expected to survive do not in fact survive within two growing seasons after construction, the permittee shall work with a professional arborist to offer the landowner the replacement of those trees with trees of an appropriate size and species to become established and grow successfully in or near the location of those two trees. Appellee-Applicant shall prepare a judgment order for the Court’s signature, also incorporating issues concluded by the summary judgment decision, and approved as to form by the other attorneys. If they do not agree, Appellee-Applicant’s proposed judgment order shall be filed on or before September 12, 2007, and any party’s objections to the form of the order shall be filed as soon as possible but not to exceed four business days after the filing of the proposed judgment order. Dated at Berlin, Vermont, this 31st day of August, 2007. ______________________________________ Merideth Wright Environmental Judge 18

01-03-2023

04-24-2018

https://www.courtlistener.com/api/rest/v3/opinions/4538773/

IN THE COMMONWEALTH COURT OF PENNSYLVANIA Washington Township Independent : School District, : Petitioner : : v. : No. 142 C.D. 2019 : Argued: December 12, 2019 Pennsylvania State Board of Education, : Respondent : BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge OPINION BY JUDGE BROBSON FILED: June 4, 2020 I. INTRODUCTION Following our remand order in Washington Township Independent School District v. Pennsylvania State Board of Education, 153 A.3d 1177 (Pa. Cmwlth. 2017) (WTISD I) (en banc), the Pennsylvania State Board of Education (Board) disapproved the application of Washington Township Independent School District (WTISD) for assignment from Dover Area School District (Dover SD) to adjacent Northern York County School District (Northern York SD).1 WTISD petitions for review of the Board’s adjudication. For the reasons set forth below, we will reverse and remand. 1 In WTISD I, this Court vacated the Board’s November 19, 2015 Order, which, like the current decision on appeal, disapproved the creation of WTISD and its transfer from Dover SD to Northern York SD. We remanded with instructions that the Board follow certain administrative procedures and confine its review of the application to the standards applicable to the organization of school districts within the Commonwealth. II. BACKGROUND Washington Township is located in the northwest corner of York County, along York County’s western border with Adams County. In York County, Washington Township borders Franklin Township to the northwest, Carroll Township to the north, Warrington Township to the northeast, Dover Township to the southeast, and Paradise Township to the south. Franklin, Carroll, and Warrington Townships lie in Northern York SD, along with Monaghan Township. Dover SD includes only Washington and Dover Townships. The Public School Code of 1949 (School Code)2 provides a mechanism by which a majority of taxpayers within a municipality may petition the court of common pleas to establish the municipality as an independent school district for the 2 Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 1-101 to 27-2702. 2 sole purpose of transferring the municipality from its current school district to an adjacent contiguous school district. The three-step process involves the court of common pleas, the Secretary of Education (Secretary), and the Board. In July 2012, the Washington Township Education Coalition (WTEC) filed a petition with the Court of Common Pleas of York County (common pleas court), requesting a transfer of Washington Township from Dover SD to Northern York SD and enumerating its reasons for asserting that the transfer had educational merit. After conducting a hearing and confirming that 1,406 of Washington Township’s 1,929 taxable inhabitants (approximately 73%) had signed the petition, that the petition properly described the territory, and that the petition set forth WTEC’s reasons for the requested transfer, the common pleas court referred the petition to the Secretary for her educational merits review.3 In evaluating the merits of the petition from an educational standpoint, the Secretary4 considered the potential impact of the transfer on the Washington 3 The initial procedure before a court of common pleas is outlined in Section 242.1(a) of the School Code, added by the Act of June 23, 1965, P.L. 139, 24 P.S. § 2-242.1(a). As we explained in WTISD I: In ruling on a petition, the court’s role is strictly procedural, and it is not to inquire into petitioner’s alleged reasons for the proposed transfer or rule on the merits of those reasons. . . . [B]efore approving the petition, the common pleas court must refer the petition to the Secretary for a determination of “the merits of the petition . . . from an educational standpoint.” Section 242.1(a) of the School Code. . . . If the Secretary determines that the petition has merit, and the common pleas court determines that the petition meets the technical requirements above, the common pleas court must order the establishment of an independent school district. WTISD I, 153 A.3d at 1179-80. 4 In July 2014, the Acting Secretary of Education was Dr. Carolyn Dumaresq. (Certified Record (C.R.) Item No. 3.) Secretary Dumaresq delegated the matter to the Acting Deputy 3 Township students, the students who would remain in Dover SD, and the students in Northern York SD. After comparing the respective schools’ performances on certain educational metrics (SAT scores, proficiency in math and reading, graduation rates, drop-out rates, truancy rates, and in-school arrest rates), the Secretary concluded that Northern York SD outperformed Dover SD on each of the metrics. Ultimately determining that the proposed transfer would have a positive educational impact on the Washington Township students and that the parties had not presented sufficient evidence to demonstrate that the transfer would have a negative impact on the students who would remain in Dover SD or the students in Northern York SD, the Secretary deemed the petition meritorious from an educational standpoint. The common pleas court thereafter entered an order, dated November 10, 2014, creating WTISD and transmitting the matter to the Board for review pursuant to Sections 292.1 and 293.1 of the School Code, 24 P.S. §§ 2-292.1, 2-293.1.5 A committee of the Board held a multi-day hearing in June 2015. Secretary for the Office of Elementary and Secondary Education to prepare a pre-adjudication determination. The Deputy Secretary issued her determination on July 2, 2014. By letter dated August 7, 2014, Secretary Dumaresq notified the common pleas court that no party appealed the pre-adjudication determination, as provided in Section 35.20 of the General Rules of Administrative Practice and Procedure, 1 Pa. Code § 35.20 (“Actions taken by a subordinate officer under authority delegated by the agency head may be appealed to the agency head by filing a petition within 10 days after service of notice of the action.”). Accordingly, Secretary Dumaresq informed the common pleas court that the pre-adjudication determination became the final adjudication in the matter, and she relinquished jurisdiction to the common pleas court. 5 Following approval of the petition by the common pleas court and the Secretary, the matter moves to the Board under Section 292.1 of the School Code, which provides: When an independent district is created by the court of common pleas for purposes of transfer from one school district to another, the court shall submit to the State Board of Education its decree creating such district. Such decree shall be considered an application for the 4 Ultimately, the committee recommended that the Board disapprove the petition for the creation of WTISD and its transfer from Dover SD to Northern York SD. Following an affirmative vote of the majority of its members, the Board adopted and accepted the committee’s recommendation and disapproved WTISD’s petition. WTISD petitioned this Court for review, raising a multitude of issues, including whether the Board improperly disregarded and/or deviated from the Secretary’s determination of educational merit, erred in not considering the petition pursuant to that standard, and erred in not deeming relevant the same measures of comparison that the Secretary accorded weight. In considering this issue, we examined the respective roles of the Secretary6 and the Board in the context of assignment of said district to the designated administrative unit of the approved county plan. (Emphasis added.) 6 The Secretary’s role is set forth in Section 242.1(a) of the School Code, which provides, in pertinent part: In all cases where an independent district is proposed for transfer from one school district to another, the merits of the petition for its creation, from an educational standpoint, shall be passed upon by the [Secretary] and the petition shall not be granted by the court unless approved by him. We observed that the Secretary’s “authority is not open-ended but instead restricted to the substantive provisions of the School Code.” WTISD I, 153 A.3d at 1184 (citing In re Petition for Formation of Indep. Sch. Dist., 17 A.3d 977, 991 (Pa. Cmwlth. 2011) (Riegelsville II)). Further, analogizing the Secretary’s role to a veto power, we held in Riegelsville II: [W]hen the Secretary exercises his [or her] discretion to determine whether a proposed transfer has “merit from an educational standpoint,” he [or she] must be guided by the policy choices made by the legislature in the [School Code] and not by his [or her] own personal sense of what constitutes good education policy. 5 independent school districts for transfer purposes, beginning with Article II, Subarticle (i) of the School Code,7 which is commonly referred to as the School Reorganization Act of 1963. As to the Board’s role, we wrote: To accomplish the purposes and goals of the School Reorganization Act of 1963, the General Assembly granted the Board certain powers and duties. First, the General Assembly mandated that the Board, by no later than July 1, 1965, develop statewide standards and procedures to evaluate objectively the performance (i.e., adequacy and efficiency) of the educational programs of each public school in the Commonwealth. Section 290.1 of the School Code.[8] Second, the General Assembly mandated that the Board, within 90 days of the effective date of the act, develop standards for approval of administrative units, which, once approved, would become school districts. Sections 291,[9] 296,[10] 297[11] of Riegelsville II, 17 A.3d at 991. “This ‘manifest restriction’ on the Secretary’s power is ‘necessary lest the statute violate the proscription against delegating legislative power to an administrative agency.’” WTISD I, 153 A.3d at 1184 (quoting Riegelsville II, 17 A.3d at 991). 7 Added by the Act of August 8, 1963, P.L. 564, 24 P.S. §§ 2-290 to -298. “The General Assembly enacted the School Reorganization Act of 1963 because it recognized that the existing system of more than 2,000 school districts in the Commonwealth was ‘incapable of providing adequate education and appropriate training for all of the children of the Commonwealth.’” WTISD I, 153 A.3d at 1185 (quoting Section 290 of the School Code, 24 P.S. § 2-290). “[T]he primary legislative objective” of the School Reorganization Act of 1963 was “reorganization in the direction of fewer and larger units.” Chartiers Valley Joint Schs. v. Cty. Bd. of Sch. Dirs. of Allegheny Cty., 211 A.2d 487, 494 (Pa. 1965) (discussing purpose of School Reorganization Act of 1963 and upholding its constitutionality). The General Assembly added Sections 242.1, 292.1, and 293.1 to the School Code through the Act of June 23, 1965, P.L. 139, “in order to provide additional authority to the Board with respect to the reorganization of school districts.” WTISD I, 153 A.3d at 1186. “During this time, the Board was in the process of performing its statutory duties under the School Reorganization Act of 1963 . . . .” Id. at 1184-85. 8 24 P.S. § 2-290.1. 9 24 P.S. § 2-291. 10 24 P.S. § 2-296. 11 24 P.S. § 2-297. 6 the School Code. In establishing these standards, the General Assembly required the Board to consider “topography, pupil population, community characteristics, transportation of pupils, use of existing school buildings, existing administrative units, potential population changes and the capability of providing a comprehensive program of education.” Section 291 of the School Code. WTISD I, 153 A.3d at 1185-86 (emphasis and footnotes added) (footnote omitted). As to the Board’s role, specifically as it relates to the General Assembly’s enactment of Sections 292.1 and 293.1 of the School Code, we observed: These amendments to the School Code empower the Board to either “approve or disapprove the creation and transfer” of an independent school district. Section 293.1 of the School Code. Neither Section 292.1 nor 293.1 of the School Code set forth standards or factors that the Board should consider in this step of the approval process. As we recognized in Riegelsville II with respect to the Secretary’s authority, however, the Board’s authority is not open-ended, but instead restricted to the substantive provisions of the School Code, as supplemented by Act 150.[12] WTISD I, 153 A.3d at 1186 (emphasis and footnote added) (citation omitted). Having examined the statutory provisions, we described the Board’s review as follows: [W]e conclude that the Board’s authority under Section 293.1 of the School Code derives from and relates to the Board’s authority to set standards for the approval of the organization of school districts in the 12 In 1968, the General Assembly passed the School District Reorganization Act of 1968, Act of July 8, 1968, P.L. 299, 24 P.S. §§ 2400.1-.10, also referred to as Act 150. The General Assembly passed Act 150, a supplement to the School Reorganization Act of 1963, to facilitate completion of the orderly reorganization of school districts required under the School Reorganization Act of 1963. See Appeal of Borough of Cambridge Springs Sch. Dist., 275 A.2d 840 (Pa. Super. 1971) (en banc). 7 Commonwealth under Section 292 of the School Code.[13] The entirety of the “reorganization” subdivision of the School Code, as supplemented by Act 150, is devoted to providing procedures and standards for the creation of school districts. Today, we presume that Pennsylvania’s existing 500 school districts are subject to these standards. When it receives the trial court’s decision creating an independent school district for transfer purposes, the Board is required to treat that decision as an application for the assignment of that independent school district to an existing school district. Section 292.1 of the School Code. In other words, the application is a request to the Board to redraw school district lines—i.e., to amend an existing plan of organization. In evaluating that request, the Board is constrained to apply the standards for the creation and organization of school districts, those being the standards that the General Assembly directed the Board to develop in Section 291 of the School Code and Section 1 of Act 150. Both sections provide: The State Board of Education . . . shall adopt standards for approval of administrative units . . . taking into [account/consideration] the following factors: topography, pupil population, community characteristics, transportation of pupils, use of existing school buildings, existing administrative units, potential population changes and the capability of providing a comprehensive program of education. Section 1 of Act 150; Section 291 of the School Code. The Board must also consider the following directive of the General Assembly, also found in both [Section 293(a) of] the School Code[14] and [Section 3 of] Act 150: [N]o plan of organization of administrative units shall be approved in which any proposed school district contains a pupil 13 24 P.S. § 2-292. 14 24 P.S. § 2-293(a). 8 population of less than four thousand (4,000), unless when factors of topography, pupil population, community characteristics, transportation of pupils, use of existing school buildings, existing administrative units, potential population changes and the capability of providing a comprehensive program of education are considered by the [Board] as requiring the approval of a plan of organization of administrative units in which one or more of the proposed school districts contains a pupil population of less than four thousand (4,000). Section 3 of Act 150; Section 293(a) of the School Code. The Board’s scope of review under Section 293.1 of the School Code must be distinguished from the Secretary’s “educational merits” review under Section 242.1 of the School Code. Under the latter, the Secretary is to evaluate only the educational merit of the petition to create an independent school district for transfer purposes. Under Section 293.1 of the School Code, and based on the standards set forth above, the Board is reviewing not the petition filed and approved by the Secretary and the common pleas court, but an application for assignment of the newly-created independent school district to the designated receiving school district, as set forth in the common pleas court’s decree. It must look at the proposed amendment to the organizational plan and determine whether the assignment of the newly-created independent school district to the receiving district would violate the adopted Board standards or express statutory standards that govern the organization of school districts. If allowing the assignment would not violate these standards, then the Board should approve the amendment “and direct the Council . . . to make the necessary changes [to] the county plan.” Section 293.1 of the School Code. If approval of the application would be contrary to these standards, then the Board should deny the application. In short, the Board’s review is the third and final review in a three-part process to seek approval for the creation and transfer of an independent school district to another 9 existing school district. . . . The common pleas court reviews the petition for completeness. The Secretary reviews the petition for educational merit. The Board reviews the common pleas court’s decree as an application in order to determine whether assignment of the newly-created independent school district to the receiving district would violate standards for the organization of school districts adopted by the Board and established by statute. WTISD I, 153 A.3d at 1186-88 (emphasis added and in original) (footnote omitted). As to the Board’s initial decision disapproving the creation and transfer of WTISD, we concluded: Turning to the Board’s decision on appeal, it is clear from reading both the initial written decision (September 17, 2015) and the written decision on reconsideration (November 19, 2015) that the Board was operating under the false impression that its review in this matter was broad and virtually unlimited. The Board cites to no standards governing its review in either written decision. The Board’s scope and standard of review should have been confined to determining whether assignment of WTISD to Northern York [SD] would result in a reorganization of school districts that violated statutory and Board-promulgated standards. Because the Board did not so confine its review, we must vacate the Board’s decision and remand the matter to the Board for review and reconsideration under the proper scope and standard of review. Id. at 1188 (emphasis added) (footnote omitted). In doing so, “[w]e acknowledge[d] that there could be some overlap between the Secretary’s educational merits review . . . and the Board’s review . . . , considering the Board’s mandate to consider ‘the capability of providing a comprehensive program of education’ in setting its standards for the organization of school districts. Section 291 of the School Code.” Id. at 1188 n.19. 10 We vacated the Board’s order and remanded the matter to the Board with direction to treat the common pleas court’s November 10, 2014 “Order Establishing Independent School District for Purposes of Transfer Pursuant to 24 P.S. [§] 2-242.1” as an application for the assignment of WTISD to Northern York [SD]. Section 292.1 of the School Code. The Board shall place this item on the agenda for its next meeting, at which the Board must either vote to approve or disapprove the application. Section 293.1 of the School Code. As noted above, in rendering this preliminary decision, the Board must adhere to the proper scope and standard of review. If approved, the Board must direct the Council to make appropriate revisions to the school district lines. Id. If disapproved, the Board must give its reasons for the disapproval. Id. Thereafter, if requested by WTISD, the Board must hold a hearing confined to its reasons for disapproval and thereafter issue an adjudication that comports with the [Administrative Agency Law, 2 Pa. C.S. §§ 501-508, 701-704]. Id. at 1189. On remand, the Board convened on March 9, 2017, to reconsider the application for assignment, and the Board denied the application. By letter dated May 11, 2017, the Board memorialized the reasons for its preliminary determination. First, the Board expressed concern that the application, if granted, would impair the ability of Dover SD and Northern York SD to provide a comprehensive program of education for their students. Second, the Board felt that it was unlikely that Northern York SD’s existing facilities could accommodate the students from WTISD. Third, the Board expressed concerns about the difference in curricula between the two school districts, noting that each school district has established a curriculum tailored to their particular students’ aptitudes, abilities, and interests. Finally, the Board 11 noted that consideration of communities of interest did not weigh in favor of approving the transfer. WTISD requested a hearing. By letter dated May 19, 2017, the Board appointed a hearing officer and instructed the hearing officer to prepare a proposed report and order for the Board’s consideration.15 By letter dated August 2, 2017, the hearing officer sought clarification from the Board regarding various aspects of the matter. By letter dated September 14, 2017, the Board provided the hearing officer and parties with instructions regarding the issues to be addressed, the school districts to be considered, and the burden of proof. In that letter, the Board instructed the hearing officer to address the factors set forth in Section 291 of the School Code and in Hoots v. Commonwealth of Pennsylvania, 672 F.2d 1107 (3d Cir. 1982). In April 2018, the hearing officer conducted an administrative hearing over the course of several days.16 15 See 1 Pa. Code §§ 35.202, .205. 16 At the hearing, WTISD called Robert Schoch, an education finance consultant, as a witness. It also elicited the testimony of several residents of Washington Township: (1) Joe Sieber; (2) Kathy Kennedy Meyer; (3) Ralph McGregor; and (4) John Peters. Intervenor Dover Area Education Association, PSEA/NEA (DAEA) called Carla Claycomb, Ph.D., an employee of the Pennsylvania State Education Association (PSEA) in various capacities since 2003, as a witness. Dover SD offered the testimony of several of its employees: (1) Tracy L. Kum, Superintendent; (2) Jennifer A. Benko, Business Manager; (3) Jared C. Wastler, Dover Area High School Principal; (4) Christopher E. Cobb, North Salem Elementary School Principal; and (5) Charles Benton, Director of Career Education and Academic Services and Dover Area High School Director of Career and Technical Education Programs. Keep Us in Dover Schools (KIDS), organized to oppose the transfer of Washington Township to Northern York SD, called the following witnesses: (1) Rachel Mailey, a parent of students who currently attend Dover SD schools and a resident of Washington Township; (2) Sandra Sweitzer, a farmer who currently resides within the boundaries of Dover SD, presumably in Washington Township; and (3) Heather Dengler, a resident of Washington Township with students who attend schools in Dover SD. Northern York SD called as a witness its Superintendent, Eric C. Eshbach, Ed.D. 12 Following the close of the record, the hearing officer issued a proposed report (Proposed Report), in which he described the standards he applied as follows: The standards identified by the Board for consideration are as follows: 1) Whether the transfer makes available educational programs and educational opportunities to meet the varying needs, aptitudes, abilities and interests of individuals residing in the district; 2) Whether the geographic area (as defined by the re-structured district) has developed the characteristics of a community; 3) Whether the transfer utilizes existing buildings to the maximum extent practical avoiding unnecessary new construction where possible; 4) Whether pupil population changes are supported by reliable studies of area development and demonstrate the desirability of the transfer; and 5) Whether the transfer demonstrates a capability of providing a comprehensive program of education. Importantly, the factors set forth by the [] School Code at 24 P.S. § 2-291, and those articulated by the Board are not mutually exclusive. Instead, the two frameworks clearly have overlapping aspects and, therefore, must be considered in conjunction with one another, where possible. This [P]roposed [R]eport is being rendered in accordance with the directives concerning the factors to be considered, as set forth in the Board’s September 14, 2017 correspondence. (Decision at 41-42.) The hearing officer included in the Proposed Report findings of fact, summarizing the testimony of the witnesses, and the following conclusions of law: 1. The Board is not precluded from approving the transfer of [WTISD] into [Northern York SD] by 24 P.S. § 2-293(a) based upon the student population of each school district. 2. The evidentiary record establishes by a preponderance of the evidence that the [Dover SD] and [Northern York SD] will be able to provide comprehensive programs of education to their students following the transfer of [WTISD] to [Northern York SD]. 13 3. The evidentiary record establishes by a preponderance of the evidence that the transportation of [WTISD] students will be enhanced by the transfer of [WTISD] into [Northern York SD]. 4. The evidentiary record does not establish by a preponderance of the evidence that the transfer of [WTISD] to [Northern York SD] will make educational programs and opportunities available which meet the varying needs, aptitudes, abilities and interests of individuals residing in both school districts. 5. The evidentiary record does not establish by a preponderance of the evidence that the geographic area will reflect the characteristics of the community as a result of the transfer of [WTISD] to [Northern York SD]. 6. The preponderance of the evidentiary record does not weigh in favor of transferring [WTISD] to [Northern York SD] based upon the use of existing buildings to [the] maximum extent practical, and the avoidance of unnecessary new construction. 7. The preponderance of the evidentiary record does not weigh in favor of transferring [WTISD] to [Northern York SD] based upon pupil population changes. 8. Approval of the transfer of [WTISD] to [Northern York SD] would be contrary to the standards adopted by the Board. 24 P.S. § 2-291; Hoots v. Commonwealth of Pennsylvania, 672 F.2d 1107, 1111 n.3 (3[]d Cir. 1982). (Decision at 39-40 (emphasis added).) Thus, the Proposed Report concluded that the proposed transfer of WTISD met the standards pertaining to comprehensive programs of education and transportation but failed to meet standards pertaining to varying needs, aptitudes, abilities and interests of individuals residing in both school districts; characteristics of a community; lack of pupil populations studies; and use of existing buildings to the maximum extent practical and the avoidance of unnecessary new construction. Following the filing of exceptions, by order dated January 10, 2019, the Board 14 adopted the Proposed Report and, upon a vote by a majority of the members of the Board, denied WTISD’s application. This appeal followed. III. ISSUES On appeal, WTISD argues that the Board disregarded this Court’s remand order, directing the Board to apply the statutory and board standards for organization of school districts when it appointed a hearing officer and directed that hearing officer to apply different standards. WTISD also argues that, in denying the application, the Board improperly engaged in a “weighing test” to determine whether the transfer would be beneficial or desirable, rather than determining simply whether the transfer met the statutory or adopted Board standards. Finally, WTISD argues that the hearing officer failed to evaluate the evidence properly, because his findings merely summarized testimony and did not review the documents admitted as evidence. In addition to the merits, pending before the Court is the Board’s Application for Leave to File Post-Submission Communication Pursuant to Pa. R.A.P. 2501(a) (“Board Application”).17 IV. DISCUSSION A. Board Application Our remand order directed the Board to consider WTISD’s application for assignment to Northern York SD pursuant to the standards for organization of school districts. Sections 291 and 293(a) of the School Code inform us that the 17 The Board has also filed an Application to Strike a portion of WTISD’s answer to the Board Application, contending that WTISD improperly included the header “New Matter” as an introduction to certain paragraphs of its answer. Though the Board is technically correct that “New Matter” is a designation reserved for pleadings, the designation is not material for purposes of this Court’s consideration of the Board Application. Accordingly, we will deny the Board’s Application to Strike. 15 General Assembly directed the Board to adopt standards for the organization of school districts based on certain enumerated factors and not to approve a school district of less than 4,000 pupils unless the factors enumerated in those sections required approval of such a small district. In reviewing the Board’s actions following remand, we are troubled by the Board’s failure below to locate, let alone identify, standards for the creation of school districts despite the General Assembly’s directives in the School Code. We would have expected these standards to be found in the Pennsylvania Code. Instead, the Board on remand below directed the hearing officer to follow a 1982 Third Circuit opinion, Hoots. Hoots addressed challenges to the consolidation of various school districts that resulted in the creation of racially segregated schools. In a footnote, the federal court in Hoots refers to Standards for Approval of Administrative Units that were purportedly adopted by the Board. The federal court, citing an exhibit not present in the record before this Court, wrote: [T]he State Board adopted Standards for Approval of Administrative Units. These standards provided, inter alia, that: (a) An administrative unit shall make available an educational program and educational opportunities to meet the varying needs, aptitudes, abilities, and interests of individuals residing in the administrative unit. (b) Consideration should be given to whether a geographic area has developed the characteristics of a community. Community, as used here, includes one or more municipalities and the surrounding territory from where people came for business, social, recreational, fraternal or similar reasons. Neither race or religion shall be a factor in determining administrative unit boundaries and differences in the social and economic level of the 16 population shall not be a basis to determine these boundaries. .... (c) An administrative unit shall utilize existing buildings to the maximum extent practical avoiding unnecessary new construction where possible. (d) Pupil population changes may be considered in the planning of administrative units where the changes are supported by reliable studies of area development showing past pupil population trends and future projections based on recognized statistical methods. (e) Consideration shall be given to the capability of providing a comprehensive program of education which shall mean the ability to educate and train each child within his capacity to the extent demanded by the immediate requirements of his growth and his relationship to the strengthening of this Commonwealth and nation, and shall include, but not be limited to, wealth per pupil, qualifications of professional staff, enrollment and diversification of curriculum. Hoots, 672 F.2d at 1111 n.3. It is difficult to discern whether the Third Circuit in Hoots paraphrased the supposed standards or included them in the footnote verbatim, and, through the use of the term “inter alia,” it is clear that the summary or recitation, whichever it may be, is incomplete. During oral argument in this matter, we raised our concern about the Board’s reliance on Hoots and the apparent lack of any published standards for evaluating WTISD’s application. The Board conceded in its merits brief and during oral argument that it could not locate standards beyond those set forth in Hoots. Following oral argument, however, the Board filed the Board Application, claiming that, with the help of a research archivist, the Board located what it claimed to be the applicable standards adopted by the Board, as published in the Pennsylvania 17 Bulletin. 1 Pa. B. 196 (August 22, 1970). Inexplicably, these standards do not appear anywhere in the Pennsylvania Code. Nonetheless, while WTISD raises numerous objections to the Board Application, WTISD does not dispute the fact that the Board, nearly 50 years ago, published the standards in the Pennsylvania Bulletin. The Pennsylvania Code, the supplements thereto, and the Pennsylvania Bulletin serve as “the only legal evidence of the valid and enforceable text” of regulations, statements of policy, or other documents required or authorized to be so published. 45 Pa. C.S. § 901(a). Publication of these Board standards in the Pennsylvania Bulletin “creates a rebuttable presumption that the document was duly issued or promulgated, approved as to legality, and all requirements otherwise met.” Sullivan v. Dep’t of Transp., Bureau of Driver Licensing, 682 A.2d 5, 8 n.4 (Pa. Cmwlth. 1996) (en banc) (citing 45 Pa. C.S. § 905). WTISD does not offer any citation to any subsequent act by the legislature, the Board, or the courts declaring the published standards invalid, repealing them, replacing them, or amending them in any material way. Accordingly, the Court will grant the Board Application and consider the published standards in the Pennsylvania Bulletin (Board Standards), to the extent applicable, in evaluating the merits of WTISD’s appeal of the Board’s adjudication.18 In doing so, we will apply the Board Standards to the reorganized school districts, as proposed in the WTISD application. The question, then, is whether the Board erred in evaluating the question properly before it, that being whether the reconfigured school districts—new Dover SD and new Northern York 18 For ease of reference, we have attached a copy of the Board Standards to this Opinion. In the Board Application, the Board does not seek a remand to afford it the opportunity to reconsider its decision in light of the recently uncovered Board Standards. WTISD opposes any remand for such purpose. 18 SD—meet the applicable statutory and regulatory standards for administrative units.19 B. Analysis of Grounds for Disapproval The Board Standards addressing school district organization are set forth in Chapters 2-100 (Introduction), 2-200 (Annexation for School Purposes), and 2-300 (Reorganization of School Districts) of the Board’s regulations, as published in the August 22, 1970 Pennsylvania Bulletin. Notwithstanding WTISD’s arguments to the contrary, the Board Standards address more than the county-wide reorganization of school districts mandated by legislation in the 1960s. As section 2-110 of the Board Standards provides: “The [School Code] carries numerous provisions for school district organization and changes in school district boundaries.” The Board regulations reference three types of actions with respect to school district boundaries: (1) annexation; (2) school district reorganization; and (3) “minor changes in school district boundaries without disturbing municipality boundaries.” Board Standards § 2-110 (emphasis added). Using the Board’s terminology, this matter involves a minor change to school district lines, in that it seeks to relocate an entire municipality from one school district to an immediately adjacent district. We, therefore, look to Chapter 2-300 of the Board Standards. 19 We emphasize here, as we did in WTISD I, that the General Assembly, in establishing a mechanism by which petitioning taxpayers could create an independent school district for transfer to an adjoining existing district, created a framework that required approval of the creation of the independent school district for transfer purposes and approval of its assignment to the receiving district unless doing so would create new district boundaries that violate the statutory or regulatory standards governing school districts. The General Assembly did not bestow upon the Board a veto power over the judgment of the taxpayers. It also did not empower the Board to weigh the subjective desirability of the grant or denial of a transfer. This is not an exercise of discretionary authority within the Board. 19 1. Varying Needs, Aptitudes, Abilities and Interests Section 2-352(4) of the Board Standards provides: “An administrative unit shall make available an educational program and educational opportunities to meet the varying needs, aptitudes, abilities and interests of individuals residing in the administrative unit.” 20 Although phrased as a directive, this standard can be applied in evaluating minor revisions to school district lines. In the context of this matter, then, the Board could consider whether new Dover SD and new Northern York SD will be able to meet this directive. In addressing this standard, the Board wrote: WTISD bears the burden of proving that educational programs and opportunities will be available which satisfy the varying needs, aptitudes, abilities and interests of individuals residing in [Dover SD] and [Northern York SD] after the transfer. WTISD fails to make any substantive arguments for why the transfer will satisfy the varying needs, aptitudes, abilities and interests of individuals residing within both Districts after the transfer. Instead, WTISD essentially argues that because both Districts will be able to offer comprehensive programs of education, both Districts implicitly satisfy this standard. For the reasons stated above however, the anticipated ability to provide comprehensive programs of education is not the equivalent of establishing that the transfer will satisfy the varying needs, aptitudes, abilities and interests of individuals within the Districts. [Dover SD] contends that WTISD has failed to meet its burden of establishing that the transfer will make available educational programs and opportunities which satisfy the needs, aptitudes, abilities and interests of individuals in both Districts. Although not expressly stated, the underpinnings of [Dover SD’s] assertions rest upon the notion that because the programs of instruction within the 20 Administrative unit is another term for school district. An administrative unit is defined as “a geographic area under the control of a single board of school directors.” Board Standards § 2-352(1). 20 District are developed and/or approved by the publicly elected Board of School Directors, they necessarily reflect the needs, aptitudes, abilities and interests of the residents within the District. [Dover SD], therefore, contends that because the transfer will result in [Dover SD] students losing educational and program opportunities they would otherwise continue to have absent the transfer, the transfer will not promote the needs, aptitudes, abilities and interests of the residents within the District. The record demonstrates that [Dover SD] provides programs of education different from those offered by [Northern York SD], including the provision of full-day kindergarten. When addressing the anticipated reduction in student population resulting from the transfer, [Dover SD] High School Principal, Jared Wastler, testified that the classes offered by the High School are based upon factors which include the students’ graduation requirements, the sequencing of core courses and space availability, particularly [Dover SD’s] Career Technology Education Program. Moreover, several courses have set requirements on the grade levels at which the students are able to take the classes. Several of [Dover SD’s] four-year educational programs traditionally start their Career Technology Education Program students in ninth grade as an introductory course which forms the foundation upon which subsequent courses are offered. The record also shows that the transfer would result in [Dover SD] students having reduced educational and extracurricular opportunities. In particular, Mr. Wastler testified that the High School would not be able to offer its current course selection on an annual basis if the number of students fall below the acceptable range due to the loss of students. He additionally established that a loss in student population may also result in Dover High School having to return to providing combination classes wherein two or three different level classes are taught in the same room. North Salem Elementary School Principal, Christopher E. Cobb, testified that the transfer will probably require the North Salem Elementary School to reduce its teaching staff to two teachers per grade level due to the reduction in the number of students. Mr. Cobb established that the loss of one teacher per grade level would preclude the 21 North Salem Elementary School from departmentalizing its course structure, and would result in North Salem Elementary School reducing the number of its encore teachers and services, such as the reading specialist and learning support teachers. [Dover SD] Director of Career Education and Academic Services, Charles Benton, testified that [Dover SD’s] philosophy towards its STEM[21] program is different from the philosophy of [Northern York SD] which is only STEM[-]oriented. As an example, the [22] agricultural-based CTE program courses offered by [Dover SD] are different from the STEM courses offered by [Northern York SD] in that they are approved by the Commonwealth of Pennsylvania, are subject to State guidelines and are validated by end-of-program examinations. Further, [Dover SD] provides full-day education at the York County School of Technology, while [Northern York SD] offers half-day technical programs. [Dover SD] Superintendent also highlighted the technology initiatives of [Dover SD], including the provision of iPads to students, which are not being provided by [Northern York SD]. As indicated above, Dr. Claycomb opined that [Dover SD] High School [s]tudents who transfer to [Northern York SD] could potentially lose access to programs of study in which they currently participate, including the District’s geo-spacial information program, career and technical education program, drop-out re-engagement program, agricultural educational program, and specific pathway programs. [Dover SD] estimates that it will experience a net loss of approximately $2.3 million in annual revenue (3% of its budget) if the [WTISD] transfer occurs. Dr. Claycomb testified that the anticipated lost revenue to [Dover SD] may result in loss of programs that are currently of value to the local community. WTISD’s attempts to counter the foregoing evidence by asserting that [Dover SD] will eventually adapt to the changes in student population and lost revenue, and will 21 STEM is the acronym for “Science, Technology, Engineering and Math.” 22 CTE is the acronym for “Career and Technical Education.” 22 overcome the “temporary concerns” created by the transfer. Despite arguing that academic merit is not a factor for consideration in this matter, WTISD also argues, in part, that “[g]iven that Northern [York SD] is academically superior in every area measured, it is simply not credible to argue that the transfer is going to have a negative impact of [sic] [WTISD s]tudents.” WTISD’s argument bears little weight in that the breadth of the first Hoots standard extends beyond the confines of the effect the transfer will have on students’ academic experience. Instead, Hoots requires an examination of the needs, aptitudes, abilities and interests of all those residing within [Dover SD]. For that reason, the potential ability by [Dover SD] to adjust its student population in the years after the merger cannot negate the disruption the transfer will have on the District’s existing programs and opportunities which, in turn, reflect the fabric, character and priorities of the residents of [Dover SD]. Accordingly, the evidentiary record addressing the educational programs and opportunities available which meet the varying needs, aptitudes, abilities and interests of individuals residing in [Dover SD] fails to support the transfer by a preponderance of the evidence. (Decision at 52-55 (emphasis added) (citations omitted).) The Board’s analysis essentially holds that differences between educational programs offered by the receiving and losing school districts, the anticipated change in Dover SD’s programs, and inconvenience to Dover SD as a result of the proposed transfer will result in districts incapable of providing “educational programs and educational opportunities to meet the varying needs, aptitudes, abilities and interests of individuals residing in the administrative unit.” See Section 2-352(4) of the Board Standards. We must conclude that the Board erred in the manner in which it applied this standard. It is undisputed that both school districts currently “meet the varying needs, aptitudes, abilities and interests of” their students. There is, however, no evidence or finding by the Board that if WTISD is drawn into Northern York SD, either 23 Northern York SD or Dover SD will be unable to meet this directive as a result. Certainly, there is a plethora of evidence, much of it the Board credited, of how the current curricula at Dover SD relating to STEM and vocational-technical training differ from those of Northern York SD. There is also evidence of differences in how the school districts deploy technology to support student learning (Dover SD provides iPads to students). While this evidence shows that some WTISD students will have a different learning experience in Northern York SD, there is no evidence in the record to support any finding or conclusion that WTISD students could not thrive in Northern York SD or, more directly, that Northern York SD cannot and will not “meet the varying needs, aptitudes, abilities and interests of” those students. There is also credited evidence of how Dover SD may have to alter its current curriculum to account for the loss of WTISD students. Indeed, the testimony of Dover SD witnesses shows that Dover SD can, if necessary, adapt. No witness testified that Dover SD cannot make the necessary adjustments and still meet the varying needs, aptitudes, abilities and interests of the students remaining in Dover SD. The Board standards do not require the applying independent school district to establish that the losing school district will be able to preserve every existing program post-transfer. Nor does it require the independent school district to establish that the transfer will impose no inconvenience or disruption on the losing district or its remaining student population. That, however, is how the Board interpreted this particular standard. In that regard, the Board erred. If we allow this error to stand, the mountain that an independent school district would have to climb before the Board would be insurmountable. In sum, the Board erred as a matter of law in how it applied this particular standard to the WTISD application. Rather than focus on whether both school 24 districts, post-transfer, will be able to “meet the varying needs, aptitudes, abilities and interests of” their new student populations, the Board improperly pitted one district’s existing curriculum and offerings against the other’s and made inconvenience and disruption to Dover SD the paramount focus of its legal analysis. In reality, even based on the evidence and findings of the Board, we have no doubt that both Northern York SD and Dover SD will be able to meet this Board standard post-transfer, even if they have to adapt their existing programs of instruction and curricula to do so. 2. Community Characteristics Section 2-352(7)(c) of the Board Standards provides: Consideration should be given to whether a geographic area has developed characteristics of a community. Community, as used here, includes one or more municipalities and the surrounding territory from which people come for business, social, recreational, fraternal or similar reasons. Neither race nor religion shall be a factor in determining administrative unit boundaries and differences in the social and economic level of the population shall not be a basis to determine these boundaries. In its directions to the hearing officer, the Board asked that the hearing officer hear and consider whether the geographic area of the new Northern York SD has developed the characteristics of a community. Implicit in the Board’s direction is its view that municipalities will only be approved for transfer if the municipality has an existing community connection to the receiving school district. In terms of fact finding, the Board found the evidence was insufficient to establish that the new Northern York SD, with WTISD, will reflect the characteristics of the community. It reasoned: The evidentiary record on this issue almost exclusively took the form of anecdotal evidence comprising 25 witness[es]’ personal preferences rather than the presentation of empirical or statistical evidence. Based upon the testimony provided, each party is found to have presented evidence of equal weight regarding whether the residents of Washington Township most closely identify with the character of the current Dover [SD] boundaries, or with the anticipated character of the community resulting from the transfer. Because WTISD bears the burden of proving by a preponderance of the evidence that Washington Township has developed the character of the community to be formed by the transfer, and because the record fails to establish through substantial evidence that the residents of Washington Township more closely affiliate themselves with the character of the post-transfer community, WTISD has not sufficiently satisfied its burden on this issue in support of the transfer. (Decision at 56 (citations omitted).) We again take issue with how the Board has applied one of the statutory and regulatory standards to the minor school district revision sought by WTISD. This particular standard, such as it is, requires only consideration of whether a geographic area (not a proposed administrative unit) has developed characteristics of a community. The clear concern here was that when the counties proposed new school district lines, in response to the legislative directives in the 1960s to create fewer and larger school districts, they were to pay careful attention to avoid, if at all possible, breaking up communities in the process. Unlike the Board, we do not read this standard as requiring counties to establish through their county plans that each proposed administrative unit enjoys an existing and established community bond. Again, that would be too steep a hill to climb. The counties could, however, draw the administrative units in a way to avoid, as much as possible, breaking up communities. Properly interpreted, then, the statute and regulation require the Board, in this instance, to consider whether the transfer of WTISD to Northern York SD divides, 26 or breaks up, a community. Considering that we are here evaluating the transfer of an entire municipality from one school district to another, a minor revision, this standard is easily met. The Board’s regulation defines community as including, inter alia, a municipality. Here, Washington Township (by over 70% of its taxpaying residents), a community, has expressed its desire through the petition process authorized by the General Assembly to move its community from Dover SD to Northern York SD. The will of that community cannot be set aside by anecdotal evidence of some residents who oppose the transfer. We are not discrediting the notion that some in Washington Township have developed a sense of community within Dover SD. That, however, is likely the case in every instance where a municipality invokes the statutory process to move to another school district. Longstanding school district lines create a sense of community. Every petition to establish an independent school district for transfer purposes under the School Code proposes to break up an existing school district. The General Assembly understood this when it passed the legislation. It could not have intended that proposed breakup to also be a basis for denying the petition. Yet, that is how the Board has applied the standard in this case. It did so in error. In short, the Board committed legal error in its application of the community considerations standard. WTISD’s application for assignment proposes transfer of an entire community—Washington Township—to Northern York SD. There is no finding by the Board or evidence in the record to suggest that the assignment, if allowed, will result in breaking up some other community. Accordingly, consideration of community characteristics does not warrant denial of the application for assignment of WTISD to Northern York SD. 27 3. Use of Existing School Buildings Section 2-352(7)(e) of the Board Standards provides: “An administrative unit shall utilize existing buildings to the maximum extent practical avoiding unnecessary new construction where possible.” The Board, in analyzing this standard, wrote: WTISD addresses this standard in its Post-Hearing Brief by asserting that the proposed transfer is anticipated to have a beneficial impact on [Dover SD] by relieving some of the overcrowding experienced by the District. WTISD additionally asserts that “Northern [York SD] will not need any additional new construction . . . .” Although the record supports the argument that a reduction in student population and the construction of its new High School may alleviate current overcrowding within [Dover SD], the record equally shows that the existing infrastructure within [Northern York SD] is inadequate to accommodate the additional students anticipated by the transfer. Superintendent of Schools, Dr. Eshbach, opined that the transfer of 250-300 students from [Dover SD] to [Northern York SD] would be “significant”. Dr. Eric Eshbach’s Statement to the [Board], revised March 7, 2018, stated, in part, “To accommodate this anticipated increase in enrollment [approximately 300 students], new classrooms and shared-use space must be added to the existing facilities at the Wellsville Elementary School and the Northern Middle School” in [Northern York SD]. The record shows that the elementary schools within [Northern York SD] are at 80% capacity. However, the addition of students from [WTISD] would increase the capacity of the District’s middle school to 93%. Dr. Eshbach qualified the remarks in his report to a small degree at the hearing by testifying that although the addition of students to Wellsville Elementary School will not require additions to the school, it would nevertheless require using current spaces in different capacities and would have an impact on [Northern York SD’s] educational program. 28 The record also shows that the Northern York County Policy Manual limits its middle school class size to 28-35 students. For that reason, [Northern York SD] anticipates the need to rapidly renovate its middle school to properly accommodate the additional students it would receive through the transfer of [WTISD] students into the District. Dr. Eshbach established that the addition of students through the transfer of [WTISD] students would cause class size to exceed that range, absent renovations. He also anticipates the need for [Northern York SD] to expand its middle school cafeteria and add or expand some classrooms and common spaces should the transfer occur because the current middle school does not have space to add another teaching team to the building. Dr. Eshbach also testified that, in terms of funding, [Northern York SD] would probably require the suspension of some of the PlanCon rules established by the Commonwealth in order to renovate its middle school in a timely manner. Based on the foregoing evidence, the record fails to establish that the transfer would utilize existing buildings to the maximum extent practical so as to support the proposed transfer. (Decision at 56-58 (citation omitted).) As with the standard above relating to communities, this standard seems to be more relevant to the reorganization of school districts mandated by the General Assembly. We note that the standard does not prohibit new construction; rather, it requires school districts to do two things: (1) utilize existing buildings to the maximum extent practical; and (2) avoid unnecessary new construction. To the extent this standard can be applied when considering an application for the assignment of independent school districts, as the Board attempted to do, the assignment does not violate the standard. The evidence and the Board’s findings reveal that Northern York SD has the ability to absorb the additional students with limited renovations to and repurposing of existing space at its schools. Through renovations and repurposing, Northern 29 York SD will be using its existing buildings “to the maximum extent practical,” avoiding the construction of new buildings. The Board, therefore, erred in concluding that the transfer would not meet the standard relating to the use of existing buildings. 4. Studies of Population Changes Section 2-352(7)(b) of the Board Standards provides the following with respect to pupil population changes: Pupil population changes may be considered in the planning of administrative units when the changes are supported by reliable studies of area development showing past pupil population trends and future projections based on recognized statistical methods. Examples of reliable studies of area development are those made by planning commissions, public utility companies and established survey agencies. (Emphasis added.) Similarly, Section 2-352(7)(g) of the Board Standards provides the following with respect to population changes generally: Population changes may be considered in the planning of administrative units when the changes are supported by reliable studies of area development showing expansion of the area and by growth projections based on recognized statistical methods. Examples of reliable studies of population growth beyond a normal projection are those made by planning commissions, public utility companies and established survey agencies. (Emphasis added.) The Board, in addressing these standards, wrote: WTISD advocates for the transfer of [WTISD] students, in part, due to anticipated growth within [Dover SD] which, it contends, will place an enormous strain on the District’s resources. In support of that argument, WTISD relies primarily upon the testimony of its expert, Mr. Schoch, and upon observations made by several witnesses from within the community who drove through 30 what was described at the hearing as new residential communities within [Dover SD]. Mr. Schoch opined that [Dover SD’s] student population is expected to increase by approximately 3,000 students due to new construction of residential communities over the next ten (10) to twenty (20) years. Accordingly, WTISD argues that the transfer of approximately 250 students from [Dover SD] to [Northern York SD] will alleviate some of the District’s overpopulation and, therefore, supports the transfer. In contrast, [Dover SD] opposes the transfer on economic grounds by challenging Mr. Schoch’s contention that [Dover SD] will be able to recover the revenue loss from the transfer through a combination of residential growth within the District and cost containment. Like their arguments that the transfer will degrade the Districts’ abilities to provide comprehensive programs of education, [Dover SD] and DAEA argue that the revenue loss from the change in student population due to the transfer will, in turn, result in sufficient diminished educational opportunities for [Dover SD] students to justify the denial of the transfer. The District also asserts that Mr. Schoch failed to present sufficient evidence that the change in student population from the transfer will benefit [Northern York SD]. In its September 14, 2017 correspondence, the Board described this factor as “Whether pupil population changes are supported by reliable studies of area development and demonstrate the desirability of the transfer.” The Court in Hoots described this factor somewhat differently as permitting consideration of pupil population changes “in the planning of administrative units where the changes are supported by reliable studies of area development showing past pupil population trends and future projections based on recognized statistical methods.” Hoots, 672 F.2d at 1111 n.3. None of the parties have cited to any legal authority, and the [hearing o]fficer is not aware of any such authority which specifically addresses this factor in detail. In Hoots v. Commonwealth of Pennsylvania, 359 F. Supp. 807, 809 (W.D. Pa. 1973)[,] and its progeny however, this factor was addressed in the context of a class action lawsuit which contested plans of reorganization and 31 consolidation of school districts which the plaintiffs contended were racially segregated. Id. at 809. Unlike this case where the transfer of approximately 250-300 [WTISD] students is the salient issue, the courts’ consideration of this factor in the Hoots cases primarily focused upon whether greater demographic shifts favored consolidation, as reflected by past pupil population trends and future population projections. For that reason, the [hearing o]fficer interprets the factor articulated by the Board as calling for a determination of whether greater student population trends in each school district, as shown through reliable studies of area development, support the transfer. Because the arguments advanced by [Dover SD] and DAEA on this issue pertain to the ability by [Dover SD] to continue to provide a comprehensive education to its students after the transfer, and/or the ability of both Districts to provide qualified professional staffs and diversified curricula, they are not materially relevant to this factor but, instead, are more particularly suited to other factors already discussed herein. WTISD presented evidence of student population trends, to some degree, primarily through Mr. Schoch. Mr. Schoch opined that [Dover SD’s] student population is expected to increase by approximately 3,000 students due to new construction over the next ten (10) to twenty (20) years. However, he was unaware of whether Dover Township or Dover Borough has begun the development of new residential properties or whether there are any housing development plans within Washington Township. For that reason, WTISD’s evidence regarding current, and/or new development consisted, in large part, of testimony and general observations of lay witnesses who had merely driven through various residential communities in the area. WTISD also relies upon the growth projections over the next 10 to 30 years reflected by the new Dover Township High School’s increased capacity of approximately 200 students. Mr. Schoch did not speak with any members of [Northern York SD] or [Dover SD] as part of his review. Accordingly, Mr. Schoch’s analysis regarding [Dover SD’s] growth potential was admittedly based upon his review of a Joint Comprehensive Plan/Growth 32 Management Plan for Dover Borough/Dover Township Region developed approximately ten years ago, in January 2008. Mr. Schoch conceded that although the Comprehensive Plan set forth 20-year growth projections using 2006 statistics, the projections within the plan have not come to fruition in the 10 years since the Plan’s creation. Notably, he has not conducted a similar analysis of residential growth or building capacity in [Northern York SD]. For that reason, the record on this issue comprises mostly of speculative student population growth estimates from residential housing units, without knowing how many students per house, if any, will exist, or if and when the developments will achieve build-out. Although he had conducted an analysis of [Dover SD’s] population projections based, in part, upon the York County Planning Commission’s population projections, Mr. Schoch admitted to not having conducted a similar analysis for [Northern York SD]. Nor has he made similar projections for [Northern York SD]. Upon consideration of the foregoing, the [hearing o]fficer finds that the growth projections offered by the WTISD on the basis of possible residential development and the capacity increase of the High School of 200 students over the next 10 to 30 years are too speculative to constitute a preponderance of the evidence that the transfer is desirable based upon anticipated pupil population changes, as shown through reliable studies of area development and future projections. (Decision at 58-61 (emphasis added) (citations omitted).) We agree with WTISD that the Board erred as a matter of law in how it applied these standards to the application for assignment. Importantly, there is nothing in the Board Standards that requires an independent school district for transfer purposes to prove, by population studies, the “desirability” of the application for assignment. It was clear error by the Board to impose such a nonexistent burden on WTISD. Rather, the population studies standards, like other standards in the Board Standards, appear to be linked to legislative directives in the 1960s to create larger and fewer school districts in the Commonwealth, with a 4,000 pupil average daily 33 membership goal per district, at a minimum. As part of the reorganization, a county board of school directors could use “reliable studies” to justify its proposed plan of reorganization and how the plan satisfies that statutory pupil population standard. To the extent this standard could be applied in this situation—a minor revision to existing district lines to transfer an entire municipality to an adjacent school district—the standard would likely only come into play if the proposed transfer of an entire municipality would, from a population perspective, dramatically and materially alter pupil populations in the losing and receiving school districts. The proposed transfer of students cannot overwhelm a receiving district with pupils it cannot reasonably accommodate nor result in the losing district becoming so small that it cannot reasonably operate at the time of transfer or for a reasonable period into the future, taking into consideration anticipated increases or decreases in pupil population. Neither the evidence nor the Board’s findings support such a dramatic and material shift of student population in this matter. Both Northern York SD and Dover SD currently have fewer than 4,000 pupils (between 3,000 and 3,500 students),23 meaning both are already below the statutory minimum threshold. That 23 Dover SD is the larger of the two. For the 2016-2017 school year, Dover SD’s enrollment was 3,499 students. (C.R., Hearing Exhibits, at 000046.) Northern York SD’s enrollment for that school year was 3,192 students. (Id. at 000052.) These numbers are in accord with enrollment data maintained by the Pennsylvania Department of Education (Department), https://www.education.pa.gov/Documents/Data%20and%20Statistics/Enrollment/ Enrollment%20Projections/School%20District%20Enrollment%20Projections.pdf (last visited June 4, 2020). For the 2018-2019 school year, the last school year reported by the Department, Northern York SD’s student population was 3,224. Dover SD’s student population was 3,516. Roughly speaking, then, the transfer of WTISD to Northern York SD will yield redrawn school districts that are roughly equal in size from a pupil population perspective. 34 will not change if the Board approves the application for assignment.24 The shift of student population would be approximately 250 pupils to Northern York SD, or roughly 7% of the Dover SD student population. As noted above, the Board’s findings and the evidence support the conclusion that Northern York SD is capable of absorbing the additional student population. Dover SD presses its concern over the financial impact of the transfer. According to its Business Manager, Ms. Benko, the loss of revenue to Dover SD resulting from the transfer could be approximately $2.3 million. (Board Finding of Fact (FF) # 93.) According to Mr. Schoch, this loss of revenue is approximately 3% of Dover SD’s annual budget of approximately $75 million. (FF ## 21, 22.) Ms. Benko further testified that Dover SD anticipates the need to increase property taxes, furlough professional employees and staff, and modify curriculum if the transfer is approved. (FF ## 96, 100.) Nonetheless, Ms. Benko testified, and the Board found, that Dover SD “has not . . . conducted a comprehensive analysis of ways to reduce expenses following the transfer.” (FF # 96.) Every transfer of a municipality from one school district to another will have a financial impact on both the receiving and losing districts. The General Assembly acknowledges this in the School Code, requiring the court of common pleas, in its decree establishing an independent school district for transfer purposes, to “determine the amount, if any, of the indebtedness and obligations of the school district, from whose territory such independent district is taken, that said district shall assume and pay, and, a statement prorating the State subsidies payable between or 24 It is for this reason that we reject DAEA’s contention that the proposed transfer “would result” in school districts with disfavored pupil populations—i.e., below 4,000 students. These school districts are already below the preferred minimum threshold for student population. 35 among the losing district or districts and the receiving district.” Section 242.1(a) of the School Code. What the testimony and fact finding by the Board show is that Dover SD may face some difficult business choices as a result of the transfer. Dover SD does, however, have choices. In other words, there is no evidence in the record, or finding by the Board, that Dover SD cannot weather the financial consequences of the transfer. Indeed, as we have noted above, the evidence of record and the Board findings show indisputably that Dover SD and Northern York SD can adapt, academically and financially, to the transfer and still meet the standards for school districts under the School Code and the Board’s regulations. In short, the Board’s factual findings and the evidence of record establish that, from a pupil population perspective, the transfer of WTISD from Dover SD will not overwhelm Northern York SD with students that it cannot reasonably accommodate nor result in Dover SD being reduced to such a size that it cannot reasonably operate after the transfer. The Board, therefore, erred in concluding that the transfer would violate standards relating to pupil population. C. Effective Date Northern York SD has remained neutral on the merits of both the original petition to establish WTISD for transfer purposes and the application for approval of the assignment of WTISD to Northern York SD. Its paramount and laudable focus has been on securing a reasonable transition period with oversight to provide a comprehensive program of education to its current students while planning to do the same for its future students. Section 226 of the School Code, 24 P.S. § 2-226, provides the following with respect to transition: If any new school district is made by the creation of any . . . independent school district, . . . or if the boundary 36 lines of any school district are changed, by reason of the changing boundary lines of any . . . independent school district, then, in any such case, the change, so far as it relates to school districts or school affairs, shall take effect at the beginning of the first school year after such . . . independent school district has been created . . . or such change in boundary lines permanently affected. (Emphasis added.) The common pleas court created WTISD for transfer purposes in November 2014. We cannot make the new boundaries retroactively effective to the 2015-2016 school year. The fallback, then, is the first school year after such change in boundary lines is permanently affected. We agree with Northern York SD that a reasonable period of transition is necessary, particularly because both districts have been operating under a period of uncertainty over the last five years while this matter has been slowly making its way through the common pleas court, the Secretary, the Board, and now this Court. Both school districts must have a reasonable period of time to plan academically and financially for their new student populations. Accordingly, and consistent with governing law, we will remand this matter to the Board with direction that it make revisions to the York County plan of organization of school districts to reflect the assignment of WTISD to Northern York SD effective with the 2021-2022 school year.25 The Board should then transfer the 25 The COVID-19 pandemic has placed a tremendous stress on our school districts and students. Effective March 16, 2020, Governor Tom Wolf indefinitely suspended in-class instruction at brick and mortar schools throughout the Commonwealth. On April 9, 2020, he extended the school closure order for the remainder of the 2019-2020 school year. School districts have moved to distance learning platforms in an effort to educate their student populations and complete the academic year, and extracurricular activities and interscholastic athletic competitions have been cancelled. With lingering uncertainty as to when these and other COVID-19 precautions will be lifted, an effective date of the 2020-2021 academic year will place too much stress on already burdened school districts as they attempt to manage the remainder of this academic year and plan (hopefully) to return to some sense of normalcy next school year. 37 matter back to the common pleas court to oversee the implementation of the reassignment. In particular, but without limitation, the common pleas court must “determine the amount . . . of indebtedness and obligations of [Dover SD], [if any, that Northern York SD] shall assume and pay, and, a statement prorating the State subsidies payable between or among [Dover SD] and [Northern York SD].” Section 242.1(a) of the School Code. V. CONCLUSION For the reasons set forth above, the Board erred in its evaluation of the standards for the organization of school districts set forth in the School Code and the Board’s regulations as applied to the application for approval of the assignment of WTISD to Northern York SD. As neither the Board’s fact finding nor the evidence of record show that the assignment will result in school districts that do not meet statutory and Board standards for administrative units, we will reverse the Board’s decision denying the application and remand the matter to the Board for further proceedings consistent with this Opinion. P. KEVIN BROBSON, Judge Judges Cohn Jubelirer and Fizzano Cannon did not participate in the decision of this case. 38 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Washington Township Independent : School District, : Petitioner : : v. : No. 142 C.D. 2019 : Pennsylvania State Board of Education, : Respondent : ORDER AND NOW, this 4th day of June, 2020, the order of the Pennsylvania State Board of Education (Board), dated January 10, 2019, is REVERSED. This matter is REMANDED to the Board for further action in accordance with the accompanying Opinion. The Board’s Application for Leave to File Post-Submission Communication Pursuant to Pa. R.A.P. 2501(a) is GRANTED. The Board’s Application to Strike is DENIED. Jurisdiction relinquished. P. KEVIN BROBSON, Judge

01-03-2023

06-04-2020

https://www.courtlistener.com/api/rest/v3/opinions/808539/

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-6725 RUSSELL LEON DAVID, SR., Plaintiff - Appellant, v. JON E. OZMINT, Director, South Carolina Department of Corrections; DONALD R. SAMPSON, Dr.; A. G. ALEWINE, Dr.; K. MCCULLOUGH, Nurse; S. SHERMAN, Nurse, Defendants - Appellees. Appeal from the United States District Court for the District of South Carolina, at Beaufort. R. Bryan Harwell, District Judge. (9:10-cv-01976-RBH) Submitted: September 11, 2012 Decided: September 14,2012 Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges. Dismissed by unpublished per curiam opinion. Russell Leon David, Sr., Appellant Pro Se. Mason Abram Summers, RICHARDSON, PLOWDEN & ROBINSON, PA, Columbia, South Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Russell Leon David, Sr. seeks to appeal the district court’s order adopting the magistrate judge’s report and recommendation, which advised summary judgment in favor of the Defendants named in David’s 42 U.S.C. § 1983 (2006) action. We dismiss the appeal for lack of jurisdiction because the notice of appeal was not timely filed. In a civil case where the United States, a federal agency, or a federal officer is not a party, the notice of appeal must be filed no more than thirty days after the entry of the district court’s final judgment or order, Fed. R. App. P. 4(a)(1)(A), unless the district court extends the appeal period under Fed. R. App. P. 4(a)(5), or reopens the appeal period under Fed. R. App. P. 4(a)(6). “[T]he timely filing of a notice of appeal in a civil case is a jurisdictional requirement.” Bowles v. Russell, 551 U.S. 205, 214 (2007). Here, the district court’s order was entered on the docket on April 12, 2011. As the district court has subsequently determined, David did not file a notice of appeal as to that order until May 31, 2011. Because David failed to file a timely notice of appeal or to obtain an extension or reopening of the appeal period, we dismiss the appeal. We dispense with oral argument because the facts and legal 2 contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 3

01-03-2023

09-14-2012

https://www.courtlistener.com/api/rest/v3/opinions/997389/

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 98-1796 BILLY J. GIBSON, Petitioner, versus DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PRO- GRAMS, UNITED STATES OF LABOR; BULLION HOLLOW ENTERPRISES, Respondents. On Petition for Review of an Order for the Benefits Review Board. (97-1127) Submitted: November 30, 1998 Decided: December 21, 1998 Before WILKINS and TRAXLER, Circuit Judges, and BUTZNER, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Billy J. Gibson, Petitioner Pro Se. James Byron Leonard, UNITED STATES DEPARTMENT OF LABOR, Arlington, Virginia; Michael Francis Blair, PENN, STUART & ESKRIDGE, Abingdon, Virginia, for Respon- dents. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Billy Gibson seeks review of the Benefits Review Board’s de- cision and order affirming the administrative law judge’s denial of black lung benefits pursuant to 30 U.S.C.A. §§ 901-945 (West 1986 & Supp. 1998). Our review of the record discloses that the Board’s decision is based upon substantial evidence and is without revers- ible error. Accordingly, we affirm on the reasoning of the Board. See Gibson v. DOWCP, No. 97-1127 (B.R.B. May 12, 1998). We dis- pense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 2

01-03-2023

07-04-2013

https://www.courtlistener.com/api/rest/v3/opinions/1867951/

103 B.R. 281 (1989) In re Ralph L. WALKER, Debtor. Ralph L. WALKER, Plaintiff-appellee, v. Robert WILDE, Monty Higley, and Jonnie Higley, Defendants-appellants. No. 88-NC-0103A. United States District Court, D. Utah, C.D. June 8, 1989. *282 John K. Rice, Midvale, Utah, for defendants-appellants. Ralph L. Walker, Highlands Ranch, Colo., pro se. Mary Ellen Sloan, Salt Lake City, Utah, Chapter 7 Trustee. Stephen Plowman, Logan, Utah, for debtor/plaintiff-appellee. MEMORANDUM DECISION AND ORDER ALDON J. ANDERSON, Senior District Judge. This bankruptcy case came before the court on certain creditors' appeal from the order of the bankruptcy court, the debtor's motion to dismiss the appeal, and the creditors' motion to strike the motion to dismiss and for sanctions. The court heard argument on the motions on February 22, 1989 and discussed the possibility of settlement with the parties. When settlement efforts failed, the court took the matter under advisement. After reviewing the record on appeal and the parties' written and oral arguments, the court enters this ruling. Factual background The debtor is Ralph Walker; the creditors who filed this appeal are Monty and Jonnie Higley. In April 1985, the Higleys sued Walker in Utah state court, alleging that he deceptively appropriated $3,950 from them in a real estate transaction involving a mobile home. At that time, Walker was a real estate broker. Walker filed a Chapter 11 petition in bankruptcy in February 1986, temporarily halting the state court action on the eve of trial. Later, his bankruptcy petition was dismissed, and the Higleys' action proceeded. Walker stated that he was going to file another bankruptcy petition, but the Higleys deny receiving formal notice of another petition until they obtained a judgment which was satisfied from the Utah Real Estate Recovery Fund. Walker had in fact filed a Chapter 7 petition in Colorado on November 21, 1986. When he appealed to the Utah Supreme Court, the judgment was set aside in view of the automatic stay under bankruptcy law. The Bankruptcy Court for the District of Colorado granted Walker a Chapter 7 discharge on June 26, 1987. He had also filed an adversary proceeding against the Higleys, seeking damages for violation of the automatic stay. The court transferred venue of both the bankruptcy and the adversary proceedings to Utah. The Higleys filed several motions with the bankruptcy court here. See, In re Walker, 91 B.R. 968 (Bankr.D.Ut.1988). They appeal the denial of two of those motions: a motion for relief from the postdischarge *283 injunction and a motion for an extension of time to file an objection to the dischargeability of their claim. Motions to dismiss and to strike Walker argues that the Higleys' appeal should be dismissed because the bankruptcy court's order denying their motions is an interlocutory order which is not appealable. The bankruptcy court dealt with the motions as part of the adversary proceeding but noted that they were "more properly brought in the main bankruptcy case." Walker, 91 B.R. at 969 n. 1. Because the order relates more to the bankruptcy than to the on-going adversary proceeding, the Higleys say it is a final order. In any event, they insist that the order is appealable. They ask the court to strike the motion to dismiss as untimely and frivolous. The court does not need to decide whether the bankruptcy court's order was final or interlocutory since interlocutory orders may also be appealed with leave of court. 28 U.S.C. § 158(a). Walker protests that no leave to appeal was obtained, but the bankruptcy rules provide: Appeal improperly taken regarded as a motion for leave to appeal. If a required motion for leave to appeal is not filed, but a notice of appeal is timely filed, the district court or bankruptcy appellate panel may grant leave to appeal or direct that a motion for leave to appeal be filed. 11 U.S.C. Rule 8003(c) (1984). In these circumstances, the court regards the Higleys' timely notice of appeal as a motion for leave to appeal and grants the motion. Standard of review In reviewing an order of the bankruptcy court, "[f]indings of fact by the bankruptcy court are not set aside unless clearly erroneous; conclusions of law are subject to de novo review." In re Posta, 866 F.2d 364, 366-67 (10th Cir.1989). Motion for relief from the post-discharge injunction The Higleys argue that in denying their motion for relief from the post-discharge injunction, the bankruptcy court made three main errors: finding that they failed to prove another entity liable on the debt; finding that relief from the injunction would prejudice Walker's "fresh start"; and applying the Curtis standard. Liability of another entity When a discharge in bankruptcy is granted, the automatic stay of proceedings against the debtor is replaced by the statutory injunction set forth at 11 U.S.C. § 524(a)(2). However, "discharge of a debt of the debtor does not affect the liability of any other entity on . . . such debt." 11 U.S.C. § 524(e). The Higleys want the injunction modified so they can proceed against another entity, the Utah Real Estate Recovery Fund. The recovery fund is established from a fee charged to every person who applies for or renews a real estate sales agent's license. To recover from the fund, a person must obtain a final judgment against a real estate licensee based on fraud, misrepresentation or deceit in any real estate transaction. See, Utah Code Ann. §§ 61-2a-1 to 61-2a-12 (1986). Then, [t]he license of any real estate licensee for whom payment from the fund is made under this chapter shall be automatically revoked. . . . A discharge in bankruptcy does not relieve a licensee from the penalties and obligations of this section. § 61-2a-9 (1986). The bankruptcy court reasoned: Since no personal liability has been established for Walker, no collection can be made from the recovery fund. To establish the liability of the recovery fund, the Higleys would have to relitigate Walker's liability in this court, in state court, or have Walker confess judgment. Walker, 91 B.R. at 974. The Higleys say there is no requirement that they prove the debtor's or other entity's liability before proceeding on the debt. They ask the court to follow a factually similar case, In re Fasse, 40 B.R. 198 *284 (Bankr.D.Colo.1984). There, the court held that § 524 did not prevent a creditor from continuing her state court action against a real estate broker who was discharged in bankruptcy in order to perfect her right to recover from Colorado's recovery fund. As the bankruptcy court emphasized, relief from the injunction was allowed in Fasse only "so long as the `enforcement proceedings are not asserted against the debtor.'" Walker, 91 B.R. at 975. At that time, Colorado's recovery fund had no mandatory or automatic provision for revocation of real estate broker's license. Id., n. 9. When it was amended in 1987 to provide for automatic revocation, the Bankruptcy Court for the District of Colorado found the new statute unconsitutional. Id., nn. 9 & 11. The bankruptcy court for this district believed Utah's provision for automatic revocation is likewise invalid because "it declares the underlying obligation to be nondischargeable and is therefore in contravention of the Bankruptcy Code, the Supremacy Clause and 11 U.S.C. § 525(a)." Id., n. 11. The bankruptcy court did not need to reach the issue of the constitutionality of the recovery fund statute, and neither does this court. The important point is that, in view of the automatic revocation provision, the Higleys could not recover from the fund without proving Walker's liability and, at least indirectly, asserting enforcement proceedings against him. For this reason, the bankruptcy court correctly concluded that action against the recovery fund would violate the statutory injunction. Prejudice to Walker's Fresh Start The bankruptcy court determined that action against the recovery fund would prejudice the "fresh start" to which Walker is entitled after a discharge in bankruptcy, citing In re Mann, 58 B.R. 953 (Bankr.W.D.Va.1986). In Mann, a creditor wanted the § 524 injunction lifted so she could seek recovery in state court under the uninsured motorist clause of her policy. The court explained that the injunction is needed "only when continuance of the civil suit will result in efforts to collect a judgment award from the debtor or his property." 58 B.R. at 958. The state court action was allowed to proceed because the "Debtor and his property are not subject to any risk and maintenance of the suit does not frustrate the policy of the Bankruptcy Code in giving the Debtor a fresh start in his economic life." Id. The Higleys argue that relitigation would not be required. Even if it were required, they say defending a civil lawsuit would not be prejudicial to Walker's fresh start if no effort is made to collect a judgment from him. Again, the Higleys' argument ignores the indirect but automatic effect of the Utah statute on which they rely. Under the statutory scheme, Walker's license would be revoked if they recover from the fund, and he would have to reimburse the fund to obtain a new license — or obtain a judgment that the requirement is invalid. The Higleys say the bankruptcy court disregarded the following facts: (1) Walker's license was revoked in September 1987; (2) he has not engaged in the occupation of selling real estate since February 1986 but instead works as a real estate appraiser; and (3) he has made no attempt to have his license reinstated. The bankruptcy court noted that Walker's license had already been revoked and that there was no evidence of damages from the revocation. Walker, 91 B.R. at 975 n. 10. Nevertheless, the bankruptcy court thought the argument that "such actions have no potential effect on the debtor or his property is to ignore reality." Id. The potential for prejudice may support a finding that the injunction or automatic stay should be enforced. For example, in In re Curtis, 40 B.R. 795 (Bankr.D.Utah 1984), the bankruptcy court enforced the automatic stay because of the "potential disruption and expense to the debtors' estate." At 807 (emphasis added). The Curtis standard The Higleys also cite error in the bankruptcy court's reliance on In re Curtis, 40 *285 B.R. 795 (Bankr.D.Utah 1984). Curtis set forth the standards for relief from the automatic stay, but this case involves relief from the post-discharge injunction. The bankruptcy court explained that creditors have a greater opportunity to obtain relief if they seek it early in the proceedings. The standards for relief from the injunction are narrower than the standards for relief from the automatic stay because post-discharge relief may affect the debtor's fresh start. Thus, the bankruptcy court considered the Curtis standards "more closely" here. Walker, 91 B.R. at 975. The court agrees that in these circumstances the Higleys cannot fail to seek relief from the automatic stay and then expect "to come to court for relief from the injunction over one year after the discharge has been granted." Id. at 975-76. The bankruptcy court did not err in drawing analogies to the Curtis case and applying a stricter standard here. Motion for an extension of time to determine dischargeability A complaint to determine the dischargeability of a creditor's claim generally must be filed within sixty days after the first meeting of creditors, but certain kinds of claims may be excepted from this deadline under 11 U.S.C. § 523(c). The bankruptcy court agreed the Higleys' claim was one of the kinds specified in § 523(c) but held that section "inapplicable because of the actual knowledge of the bankruptcy filing by their attorney-agent, Wilde." Walker, 91 B.R. at 978. The record shows that Walker failed to list the Higleys on his list of creditors so they would receive formal notice of the bankruptcy. However, Wilde's notes indicated that on February 22/26, 1987, another creditor informed Wilde of the bankruptcy petition, the court in which it was filed, the court's address, the case number, and the name and address of the chapter 7 trustee. Wilde said he contacted the court and was told to make written inquiry but received no response until May 21, 1987 — more than a month after the April 12, 1987 bar date for filing a complaint to determine dischargeability. The Higleys say the bankruptcy court made three errors in denying their motion for an extension of time: (1) concluding that Wilde was imputed with knowledge of the bankruptcy when Walker said he was going to file; (2) failing to determine whether Wilde's actual knowledge came soon enough to file a timely proof of claim or request a determination of dischargeability; and (3) finding that Wilde breached his duty of inquiry. A recent Tenth Circuit decision is dispositive of these issues: In re Green, 876 F.2d 854 (10th Cir.1989). There, the creditor had asserted a claim against the debtor in state court. While the creditor was seeking sanctions against the debtor for failure to respond to discovery, the debtor filed a petition for relief under Chapter 7 of the Bankruptcy Code. The creditor was not listed on the creditors' list and received no formal notice of the petition. However, it learned of the petition from its general partner sometime in August 1986. The bar date for filing complaints to determine dischargeability was September 2, 1986. For some reason, the creditor did not file its complaint until two days after the bar date. The bankruptcy court dismissed the complaint as untimely, and the district court affirmed. The Tenth Circuit also affirmed, holding that "a creditor who does not receive formal notice of the filing of a petition for bankruptcy relief under Chapter 7, but who has actual knowledge shortly after the filing, is bound by the bar date for filing complaints to determine dischargeability." Green, at 855. The court explained that there are "statutory and substantive differences between creditor's rights under Chapters 11 and 7" of the Bankruptcy Code. Id., at 856. In the Chapter 11 context, "a creditor, who has general knowledge of a debtor's reorganization proceedings, has no duty to inquire about further court action." Id., quoting Reliable Elec. Co. v. Olson Constr. Co., 726 F.2d 620, 622 (10th Cir. 1984). However, the rule that governs notice and dischargeability in Chapter 11 does *286 not apply in Chapter 7. Under § 523(a)(3)(A), the debt of a creditor with actual, timely notice can be discharged. Therefore, "a Chapter 7 creditor holding an unsecured claim does not have the `right to assume' receipt of further notice." Green, at 857. Although the Higleys did not receive formal notice that Walker had filed a Chapter 7 petition, the evidence was clear that they had actual knowledge through their agent and attorney on February 22/26, 1987 — approximately six weeks before the bar date for filing a complaint. Under the rule affirmed in Green, they were bound by the bar date. The bankruptcy court concluded that "if a creditor has actual notice, nothing will toll the running of that date with the exception of a timely filed request to extend the time to file a complaint." 91 B.R. at 980. The bankruptcy court's conclusion comports with the Green rule. It also comports with the policy of giving the debtor a "fresh start" after a discharge in bankruptcy. The Higley's motion for an extension of time to file a complaint was filed on July 15, 1988 — more than a year after Walker's debts were discharged, more than fifteen months after the bar date and more than sixteen months after they received actual notice of the bankruptcy. In these circumstances, the court agrees that the motion is untimely. Order The Higleys' notice of appeal is regarded as a motion for leave to appeal and is granted. Walker's motion to dismiss the appeal and the Higleys' motion to strike the motion to dismiss are denied. As to the merits of the appeal, the bankruptcy court's findings of fact are not clearly erroneous, and its ultimate conclusions of law are correct. The court therefore enters this order affirming the bankruptcy court's decision.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2767714/

CORRECTED COPY UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before COOK, CAMPANELLA, and HAIGHT Appellate Military Judges UNITED STATES, Appellee v. Private E1 JONATHAN J. BLAIR United States Army, Appellant ARMY 20110846 Headquarters, 2nd Infantry Division T. Mark Kulish, Military Judge Colonel Jeffrey D. Pedersen, Staff Judge Advocate (pretrial) Lieutenant Colonel Paula I. Schasberger, Staff Judge Advocate (pos t-trial) For Appellant: Lieutenant Colonel Imogene M. Jamison, JA; Major Jacob D. Bashore, JA (on second supplemental brief); Lieutenant Colonel Peter Kageliery , Jr., JA; Major Jacob D. Bashore, JA (on supplemental brief); Lieutenant Colonel Imogene M. Jamison, JA; Lieutenant Colonel Peter Kageliery, Jr., JA; Major Jacob D. Bashore, JA (on original brief). For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Daniel D. Maurer, JA (on second supplemental brief); Lieutenant Colonel Amber J. Roach, JA; Major Katherine S. Gowel, JA; Captain Daniel D. Maurer, JA (on supplemental and original brief). 29 August 2013 ----------------------------------- OPINION OF THE COURT ----------------------------------- HAIGHT, Judge: A military judge sitting as a general court-martial convicted appellant, pursuant to his plea, of indecent conduct, in violation of Article 120, Uniform Code of Military Justice, 10 U.S.C. § 920 (2006 & Supp V 2011), amended by 10 U.S.C. § 920 (2012) [hereinafter UCMJ]. The military judge sentenced appellant to a bad - conduct discharge and confinement for eighteen months. The convening authority approved only so much of the sentence as provided for a bad -conduct discharge and confinement for eleven months. The convening authority awarded appellant forty- five days of confinement credit. BLAIR—ARMY 20110846 Appellant’s case is before this court for review pursuant to Article 66, UCMJ. Appellate counsel assigns three errors to this court and appellant personally raises matters pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). The second assignment of error merits discussion but no relief. The remaining assignments of error and those matters personally raised by appellant pursuant to Grostefon are without merit. BACKGROUND On 7 February 2011*, appellant and Private (PVT) AA discussed the possibility of the two having sex that night, before PVT AA was set to depart Korea the next day. That night, the two attended a party in the barracks where PVT AA consumed alcohol. Appellant danced and flirted with PVT AA throughout the evening and was aware of her significant alcohol consumption. At some point during the party, appellant made a fist -pumping motion that mimicked a train conductor to another servicemember, U.S. Navy Petty Officer (PO) Shawn Bradley. The Petty Officer understood this gesture to indicate that appellant and he would engage in sexual intercourse with PVT AA “simultaneously or in quick succession.” Private AA was unaware appellant had signaled PO Bradley and had not told appellant she consented to sexual intercourse with PO Bradley. After leaving the party and while appellant and PVT AA walked to appellant’s room, PVT AA noticed PO Bradley was following them. Regarding this third party, PVT AA, albeit in a diminished state, did implore appellant multiple times, “whatever he is doing, don’t allow him to touch me.” Each time, appellant affirmed he would not let anybody else touch her and provided reassurance by repeatedly stating, “I got you girl.” However, appellant did not tell PO Bradley to stop following them and did not prevent him from entering the room with appellant and PVT AA. Once inside his barracks room, appellant engaged in sexual intercourse with PVT AA in full view of PO Bradley and fully aware of his presence. Private AA was initially unaware PO Bradley was even in the room but after he approached them and attempted to place his penis in PVT AA’s mouth as she was having sex with appellant, she rebuffed PO Bradley’s efforts and pushed him away. At some point, another soldier, Specialist (SPC) Kirk Vogt, entered the room and also observed appellant and PVT AA engaging in sexual intercourse. Again, appellant was aware of SPC Vogt’s presence but did not stop or request that he leave the room. In fact, PVT AA once again asked appellant to not let anybody el se touch her, a request with which appellant again assured PVT AA he would comply. However, after ejaculation, appellant abandoned PVT AA and went to the bathroom. Petty Officer Bradley then had sexual intercourse with PVT AA, followed by SPC Vogt. Appellant returned from the bathroom while SPC Vogt was *Corrected 2 BLAIR—ARMY 20110846 having sex with PVT AA. Upon seeing appellant and realizing she was engaged in sexual intercourse with somebody other than appellant, PVT AA struggled and cried out, “[s]top, get him off me.” Appellant did finally end up assisting PVT AA and pushing SPC Vogt against a dresser. While also charged with crimes such as conspiracy and aggravated sexual assault, appellant entered into a pretrial agreement to only plead gu ilty at his general court-martial to indecent conduct, in violation of Article 120, UCMJ, for having sexual intercourse in the presence of others. Appellant was sentenced to a bad- conduct discharge and confinement for eighteen months. While the pretrial agreement capped the confinement at twelve months, t he convening authority ultimately approved the bad-conduct discharge and confinement for eleven months. For his role in this incident, SPC Vogt was also tried by a general court - martial, but he was convicted of the more serious offense of aggravated sexual assault. His adjudged sentence was a dishonorable discharge and three years of confinement. The same convening authority as in this case reduced the confinement by one month but otherwise approved the adjudged sentence. Also based on this incident, PO Bradley was originally charged with similar assaultive crimes. However, he negotiated a pretrial agreement with his armed service’s convening authority, the commander of III MEF Headquarters Group, III Marine Expeditionary Force, under the terms of which he agreed to plead guilty to the indecent conduct of engaging in sex in the presence of others in exchange for a referral to a Summary Court-Martial. As a result of his low-level court-martial, PO Bradley was sentenced to restriction for thirty days and reduction to the grade of E- 4. His convening authority suspended the reduction but approved the restriction. Before this court, appellant now complains his sentence is disproportionately severe when compared to the punishment received by his co -actor, PO Bradley. As such, appellant requests this court disapprove his bad -conduct discharge and sentence to confinement. LAW AND DISCUSSION This court may “affirm only such findings of guilty and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved.” UCMJ art. 66(c). “Article 66(c)’s sentence appropriateness provision is a sweeping congressional mandate to ensure a fair and just punishment for every accused.” United States v. Baier, 60 M.J. 382, 384 (C.A.A.F. 2005) (internal quotation omitted). The Court of Appeals for the Armed Forces (CAAF) has stressed the importance of this court’s role in evaluating sentence appropriateness to ensure “uni formity and evenhandedness of sentencing decisions.” United States v. Sothen, 54 M.J. 294, 296 (C.A.A.F. 2001). 3 BLAIR—ARMY 20110846 We make such determinations in light of the character of the offender, the nature and seriousness of his offenses, and the entire record of tr ial. United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (citing United States v. Mamaluy, 10 U.S.C.M.A. 102, 106-07, 27 C.M.R. 176, 181 (1959)). We are not required to “engage in sentence comparison with specific cases ‘except in those rare instances in which sentence appropriateness can be fairly det ermined only by reference to disparate sentences adjudged in closely related cases.’ ” United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999) (quoting United States v. Ballard, 20 M.J. 282, 283 (C.M.A. 1985)). At this court, appellant bears the burden of demonstrating that PO Bradley’s case is “closely related” to appellant's case and that the sentences are “highly disparate.” Id. If successful, “then the [g]overnment must show that there is a rational basis for the disparity.” Id.; United States v. Durant, 55 M.J. 258, 260 (C.A.A.F. 2001). “Sentence comparison does not require sentence equation.” Durant, 55 M.J. at 260. In cases alleged to be highly disparate, “the test . . . is not limited to a narrow comparison of the relative numerical values of the sentences at issue, but also may include consideration of the disparity in relation to the potential maximum punishment.” Lacy, 50 M.J. at 289. We have a great deal of discretion in determining whether a particular sentence is appropriate but we are not authorized to engage in exercises of clemency. United States v. Nerad, 69 M.J. 138, 148 (C.A.A.F. 2010); Lacy, 50 M.J. at 288; United States v. Healy, 26 M.J. 394, 395–96 (C.M.A. 1988). Closely Related and Highly Disparate Sentences We must first determine if appellant has met his burden that the cases to be compared are closely related. Closely related cases include those which pertain to “coactors involved in a common crime, servicemembers involved in a common or parallel scheme, or some other direct nexus between the servicemembers whose sentences are sought to be compared.” Lacy, 50 M.J. at 288. In this case, we find appellant has met his burden of proving his co -actor’s case is closely related. Appellant, PO Bradley, and SPC Vogt all engaged in an indecent course of conduct with the same victim; that is, in the barracks, while in each other’s view and presence, they engaged in sex with a fellow servicemember who was intoxicated to some level. All three were initially charged with both assaultive crimes as well as indecent conduct in that their sexual activity was open and notorious. While eac h faced individual courts-martial, all faced trials stemming from a common incident. Next, we must determine if appellant has shown the sentences in the closely related cases to be highly disparate. We note here that because the co-actors were tried at different levels of court-martial, this could appear to involve an issue of “differences in initial disposition rather than sentence uniformity.” United States v. Noble, 50 M.J. 293, 294-95 (C.A.A.F. 1999). However, as both appellant and PO 4 BLAIR—ARMY 20110846 Bradley were tried, convicted, and sentenced, this is not an instance where “[t]here is no court-martial record of findings and sentence that can be compared, which [would mean] that the issue of sentence uniformity is not present. ” Noble, 50 M.J. at 293. Petty Officer Bradley pleaded guilty to indecent conduct and was ultimately sentenced to thirty days restriction and a suspended one -grade reduction. However, appellant, who like PO Bradley only pleaded guilty to the indecent co nduct charge, received a federal conviction and was sentenced to a punitive discharge and confinement for eighteen months, albeit only eleven months of confinement was approved. Therefore, we find appellant has also met his burden to show these sentences to be highly disparate. Rational Basis for the Disparity The burden now shifts to the government to demonstrate a rational basis exists to justify the difference in the relevant sentences. We find three strong and cogent reasons for any variation in the relative uniformity of appellant’s and PO Bradley’s sentences. Before detailing those reasons, we address any notion that a cross- services comparison would be inappropriate. If co-actors are in different services and fall under different convening authorities, this may factor into any sentence comparison but does not preclude it. In the past, service courts have expressed some reluctance to compare sentences across services. Specifically, the Air Force Court of Criminal Appeals has found: . . . . While there are certain disciplinary ideals and needs which are common to the Profession-at-arms as a whole, the several services which comprise the United States Armed Forces have separate and diverse missions which dictate different needs and emphases on the many facets of good order and disciplinary (sic). The morale, welfare, and good order and discipline needs, and specific areas of emphases thereof, will differ for a fighter wing when compared to a logistics or training center and vice versa. This factor grows when expanded to the various services. The commander of an air force base located near a metropolitan area will have far different good order and discipline needs than a commander of an Army Post with a different mission, or a commander of a naval vessel sailing in some remote part of the world. United States v. Rencher, 1998 WL 88628, at *5 (A.F. Ct. Crim. App. 20 Feb. 1998). See also United States v. Turner, 28 M.J. 556 (C.G.C.M.R. 1989) (determining that comparing Coast Guard cases with cases from the other military services would lead that reviewing court into a morass from which there would be no escape). 5 BLAIR—ARMY 20110846 These cautions were expressed at a time before the military’s superi or court’s further guidance on this issue in Lacy and Sothen. See Lacy, 50 M.J. at 288; Sothen, 54 M.J. at 296. While we agree that the impact of certain crimes may differ according to the perpetrator’s service, unit, location, military occupational spec ialty, and assigned duties, this impact is but one factor in the analysis, but not conclusive of whether the analysis should be conducted in the first place. In today’s environment of joint bases, joint deployments, joint units and task forces, joint commissions, and joint hearings, we no longer fear entering the “morass” of cross - service sentence comparison when appropriate. Accordingly, we now turn to the rational bases for the disparate outcomes in the closely related cases at hand. First, appellant’s charges were preferred against him on 5 April 2011 and referred to general court -martial on 13 June 2011. Appellant and the convening authority entered into a pretrial agreement on 8 September 2011 wherein appellant agreed to plead guilty to indecent con duct at his general court-martial in exchange for a confinement cap of twelve months and disapproval of any dishonorable discharge. During the pretrial processing of appellant’s court-martial, on 15 June 2011, appellant was found guilty at a Field Grade Article 15, UCMJ, hearing and received extra duty for 45 days, restriction for twenty-six days, forfeiture of $733.00 pay for one month, and reduction to the grade of E-1 (from then E-3). This nonjudicial punishment was administered for appellant’s failure to repair on 11 April 2011, wrongfully going off -post while his pass privileges were suspended on 7 May 2011, and neglectfully losing his military identification card on 1 June 2011. This nonjudicial punishment was included in the stipulation of fact, entered as aggravation evidence, and was expressly agreed upon as appropriate for consideration when fashioning an appropriate sentence. On the other hand, unlike appellant, there is no indication that PO Bradley engaged in any further misconduct warranting official action pending his upcoming trial. Second, clearly a main reason for the disparity found here is a result of PO Bradley’s case being referred to a summary court-martial. Obviously, the potential maximum punishment varies greatly dependi ng on the forum. This difference in the respective maximum punishments is a proper consideration when comparing disparate sentences. See Lacy, 50 MJ at 289. Nevertheless, appellant asserts, in essence, it was unfair for PO Bradley to be tried by the Mar ine Corps at a summary court-martial when the Army elected to try appellant at a general court -martial. This complaint rings somewhat hollow in light of our superior court’s observation, “[t]he military justice system is highly decentralized. Military co mmanders stationed at diverse locations throughout the world have broad discretion to decide whether a case should be disposed of through administrative, nonjudicial, or court -martial channels.” Lacy, 50 M.J. at 287. Surely, if the proper exercise of thi s discretion extends to courses of action other than court -martial, it must also extend to the decision as to which of the three levels of court -martial the charges are to be 6 BLAIR—ARMY 20110846 referred. Accordingly, variance in the exercise of discretion does not equate to an abuse of that discretion. Simply put, PO Bradley was able to negotiate a more favorable pretrial agreement with his convening authority than appellant was able to with his. * Even accepting PO Bradley’s treatment as relatively lenient, we find no impropriety or unlawful, invidious, or impermissible discrimination by either convening authority. Hence, the disparity in disposition does not seriously detract from the appearance of fairness and integrity in military justice nor does it “rise to the level of an obvious miscarriage of justice or an abuse of discretion.” United States v. Snelling, 14 M.J. 267, 269 (C.M.A. 1982) (quoting United States v. Olinger, 12 M.J. 458 460 (C.M.A. 1982)). “Ordinarily, leniency towards one accused does not necessari ly flow to another, nor should it. Disparity that results from a convening authority’s . . . judgment does not necessarily entitle a service person to some form of appellate relief.” United States v. Kelly, 40 M.J. 558, 570 (N.M.C.M.R. 1994). See also Durant, 55 M.J. at 264 (Effron, J., dissenting) (reasoning “that a sentence adjustment is not required where the sentence at issue is found to be objectively appropriate and . . . the disparity is largely the result of the coactor’s relatively lenient sentence”). In fact, any perceived leniency afforded PO Bradley by his convening authority is readily explained by PVT AA’s victim preference letter in that case: . . . I hereby elect to express my preference not to testify in Okinawa against [PO Bradley]. I understand that my preference not to participate in this case may mean that [PO Bradley] is charged with a lesser offense, and that his case may be dealt with at a lower forum. I think that this is an appropriate outcome . . . . * A certified true copy of the “Summary Court -Martial Package” of PO Bradley, to include: the record of trial; the initial charges which were withdrawn ; the signed and introduced summary court-martial memorandum of pretrial agreement ; the summary of proceedings signed by the summary court -martial officer; and the admitted victim preference letter by PVT AA, are before this court over appellate defense counsel’s objection. We specifically note that even absent consideration of any portions of that package not already introduced by appellate defense counsel, our “closely - related” case comparison and ultimate decision would be the same and still result in this court affirming appellant’s findings and sentence. We further note that judicial notice of relevant portions of the summary court -martial record was an available option. See United States v. Smith, 56 M.J. 653, 660 n.7 (Army Ct. Crim. App. 2001). 7 BLAIR—ARMY 20110846 . . . But to the extent that my views affect the command’s decision, I believe the best outcome would be for [PO Bradley] to plead guilty to a lesser offense at a lower forum. I have relocated to CONUS and for personal reasons I am hoping to move on from these events as soon as I am finished testifying in the two related Army cases. Third, one factual distinction between appellant’s conduct and that of his co - actors provides perhaps the most compelling reason for the disparity. It was appellant, not PO Bradley and not SPC Vogt, in whom PVT AA placed her trust, a trust which appellant almost immediately thereafter unabashedly betrayed. Rather than keeping his promises of “I got you, girl,” he most assuredly did not “have her back.” These facts and circumstances surrounding appellant’s offense were properly considered in aggravation. See Rule for Courts-Martial 1001(b)(4). Accordingly, we find appellant’s case to be closely related to that of PO Bradley, their disposition and sentences to be highly disparate, but t here are good and cogent reasons that constitute a rational basis for that disparity. Furthermore, apart from the comparative analysis, we find appellant’s disposition and sentence, both adjudged and approved, to be appropriate and not excessively severe. CONCLUSION On consideration of the entire record, submissions of the parties, and those matters personally raised by appellant pursuant to Grostefon, we hold the findings of guilty and the sentence as approved by the convening authority are correct in law and fact. Accordingly, the findings of guilty and the sentence are AFFIRMED. Senior Judge COOK and Judge CAMPANELLA concur. FOR FOR THE THE COURT: COURT: MALCOLM H. SQUIRES, JR. MALCOLM H. SQUIRES JR. Clerk Clerk of of Court Court 8

01-03-2023

01-09-2015

https://www.courtlistener.com/api/rest/v3/opinions/2767729/

UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before KERN, ALDYKIEWICZ, and MARTIN Appellate Military Judges UNITED STATES, Appellant v. Specialist BENJAMIN C. HILL United States Army, Appellee ARMY MISC 20120755 Headquarters, III Corps and Fort Hood Kirsten Brunson and Patricia H. Lewis, Military Judges Colonel Stuart W. Risch, Staff Judge Advocate For Appellee: Lieutenant Colonel Peter Kageleiry, Jr., JA; Captain Robert Feldmeier, JA (on brief). For Appellant: Lieutenant Colonel Amber J. Roach, JA; Captain Chad M. Fisher, JA; Captain Kenneth W. Borgnino, JA (on brief). 19 October 2012 -------------------------------------------------------------------------- OPINION OF THE COURT AND ACTION ON APPEAL BY THE UNITED STATES FILED PURSUANT TO ARTICLE 62, UNIFORM CODE OF MILITARY JUSTICE ------------------------------------------------------------------------- MARTIN, Judge: Appellee is charged with two specifications of violating a lawful general regulation for hazing, two specifications of aggravated sexual contact, and two specifications of housebreaking with the intent to commit aggravated sexual contact therein, in violation of Articles 92, 120, and 130, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 920, 930 (2006 & Supp. IV 2010) [hereinafter UCMJ]. During a pretrial motion hearing, the military judge found there was a Rule for Courts-Martial [hereinafter R.C.M.] 707 speedy-trial violation and dismissed the charges against appellee with prejudice. The military judge later reconsidered and reversed the ruling, thereby reinstating the charges. However, a second military judge later assigned to the case again dismissed the charges, ruling the first military judge improperly reversed her initial decision. The United States then filed a timely appeal with this court pursuant to Article 62, UCMJ, contending the second military HILL—ARMY MISC 20120755 judge erred. We agree with appellant and remand the case to the military judge for further proceedings consistent with this decision. BACKGROUND Appellee and several co-conspirators are charged with unlawfully entering the quarters of newly assigned, junior enlisted soldiers and hazing them by forcibly touching their genitalia, anus, groin, inner thigh, and buttocks. These incidents allegedly took place over several months at Contingency Operating Site Marez in Iraq. When one of the alleged victims notified the chain of command about the hazing ritual, the commander put into place a series of restrictions against the appellee and the alleged co-conspirators in the case. While we need not determine whether or not the restrictions constituted an arrest, it is important to note that the restrictions were the subject of a R.C.M. 707 speedy-trial motion by the defense and subsequent ruling by the first military judge assigned to the case. On 8 March 2012, after an Article 39(a), UCMJ, session where several witnesses testified regarding the restrictions against appellee, the first military judge [hereinafter MJ 1] ruled the government violated R.C.M. 707. 1 Specifically, she found the conditions placed on appellee by his commander in Iraq constituted an “arrest,” and as such, started the 120-day clock on 10 July 2011. (See Appendix for the case-processing timeline). The charges were referred on 2 December 2011, and received by the trial court on 6 December 2011, so that 146 days had elapsed from the imposition of pretrial restraint until receipt of charges. 2 After applying the 1 R.C.M. 707(a), reads, in pertinent part: In general. The accused shall be brought to trial within 120 days after the earlier of: (1) Preferral of charges; (2) The imposition of restraint under R.C.M. 304(a)(2)–(4); or (3) Entry on active duty under R.C.M. 204. 2 The merit of MJ 1’s R.C.M. 707 ruling itself is not before this court; therefore, we need not determine the correctness of the military judge’s conclusion that 146 days elapsed between the imposition of restraint and appellee being “brought to trial.” However, we note that the military judge ended her computation on the date of service to the court, in accordance with the Rules of Practice Before Army Courts- Martial, Rule 1.1. This rule provides “that any period of delay from the judge’s receipt of the referred charges until arraignment is considered pretrial delay approved by the judge per R.C.M. 707(c),” whereas, R.C.M. 707 defines “brought to trial” as the date of arraignment. 2 HILL—ARMY MISC 20120755 Barker factors, see Barker v. Wingo, 407 U.S. 514, 530 (1972), the military judge granted the defense motion to dismiss all charges with prejudice. Following this ruling, the government filed its first notice of intent to appeal pursuant to Article 62, UCMJ. In accordance with the procedures for a government appeal, MJ 1 reviewed the record of proceedings, and on 21 March 2012, signed a form entitled “Authentication of the Record of Trial” pursuant to R.C.M. 908(b)(5). However, on 23 March 2012, MJ 1 emailed counsel that she believed her ruling was in error and that she would like to conduct a proceeding in revision. No such proceeding was ever conducted. On 27 March 2012, the trial counsel notified MJ 1 that the government was withdrawing the notice of appeal under Article 62, UCMJ, and requested that she reconsider and reverse her decision to dismiss the charges. Notably, the appeal was never filed with this court. Ultimately, MJ 1 issued a new ruling on 28 March 2012 wherein she reversed her earlier decision to dismiss the charges with prejudice. Citing to United States v. Ruffin, 48 M.J. 211 (C.A.A.F. 1998) (holding that release from pretrial confinement with no subsequent pretrial restraint restarts the speedy trial clock), MJ 1 found the charges were brought to trial within the 120-day time-limit. Accordingly, MJ 1 reversed her earlier decision and denied the defense motion to dismiss the charges. On 25 June 2012, a second military judge [hereinafter MJ 2] was detailed to the case and held an Article 39(a), UCMJ, session to address MJ 1’s most recent ruling. The second military judge reviewed the authentication procedures of R.C.M. 908(b)(5) and the reconsideration provisions of R.C.M. 905(f), and decided that a court-martial is effectively without jurisdiction to reconsider a decision after the record is authenticated for the purposes of a government appeal pursuant to Article 62, UCMJ. Consequently, MJ 2 concluded that MJ 1’s ruling in reconsideration was ineffectual, because it occurred after the record of proceedings was authenticated and at a time when the court-martial was without jurisdiction. Accordingly, MJ 2 ruled the case was dismissed with prejudice. The government, acting within its discretion under Article 62(a)(1)(A), UCMJ, then filed the instant appeal with this court, complaining, in essence, that MJ 2 erred by holding that MJ 1 was without authority to reconsider her earlier decision. LAW AND DISCUSSION “In criminal cases, prosecution appeals are not favored and are available only upon specific statutory authorization.” United States v. Wuterich, 67 M.J. 63, 70 (C.A.A.F. 2008). As post-trial appeals by the government are very limited due to the constitutional prohibition against double jeopardy, the prosecution “has a somewhat broader opportunity than the defense to file appeals during the trial.” Id. 3 HILL—ARMY MISC 20120755 The specific statutory authorization for interlocutory prosecution appeals in courts- martial is provided by Article 62, UCMJ. When reviewing matters under Article 62, UCMJ, we “may act only with respect to matters of law.” UCMJ art. 62(b). See R.C.M. 908(c)(2). The issue before this court involves the procedural posture of the case at the time MJ 1 decided to reconsider her initial ruling which was the subject of a government appeal. Upon further review of her decision to dismiss the charges against appellee, MJ 1 decided that it was appropriate to reconsider this ruling. However, the government had already provided its notice of intent to appeal, and MJ 1 had already authenticated the record of proceedings for that appeal. Thus, the court-martial was under a stay of proceedings. See R.C.M. 908(b)(4). Before the appeal was filed with this court, however, the trial counsel notified the military judge that the government was electing not to pursue its appeal, and following this notification, MJ 1 reconsidered and reversed her decision. Jurisdiction Appellee argues that MJ 1 was without jurisdiction to reconsider her ruling following the government’s notice of intent to appeal. Appellee’s argument draws upon the text of R.C.M. 908(b)(4), which states, inter alia: Effect on the court-martial. Upon written notice to the military judge under subsection (b)(3) of this rule, the ruling or order that is the subject of the appeal is automatically stayed and no session of the court-martial may proceed pending disposition by the Court of Criminal Appeals of the appeal, except that solely as to charges and specifications not affected by the ruling or order . . . . Thus, appellee argues that MJ 1 could not properly act until jurisdiction of the case was returned by action of the Court of Criminal Appeals. Although we agree with appellee that the court-martial was initially without authority to act when the government notified the court of its intent to appeal, we conclude that MJ 1 was within her authority to reconsider her ruling when the trial counsel withdrew the government’s notice of intent to appeal prior to filing the record with this court. In United States v. Browers, 20 M.J. 356, 359 (C.M.A. 1985), the court noted that “Congress intended for Article 62 appeals to be conducted ‘under procedures similar to [those governing] an appeal by the United States in a federal civilian prosecution.’” Id. (quoting S. Rep. No. 98-53, at 6 (1983)) (alteration in original). As such, our superior court looked to federal precedent for guidance when determining the effect of an Article 62, UCMJ, appeal on a trial proceeding. Id. The Browers Court went on to note that in federal appellate practice, once the United States files a sufficient notice of appeal, “[t]he district court is divested of 4 HILL—ARMY MISC 20120755 jurisdiction to take any action with regard to the matter,” and jurisdiction is transferred from the district court to the court of appeals. Id. (quoting United States v. Hitchmon, 602 F.2d 689, 692 (5th Cir. 1979) (en banc)). The transfer of jurisdiction in Article 62, UCMJ, appeals, however, is not akin to the loss of personal or subject matter jurisdiction. Indeed, the Supreme Court has cautioned “a rule should not be referred to as jurisdictional unless it governs a court’s adjudicatory capacity, that is, its subject-matter or personal jurisdiction. Other rules, even if important and mandatory . . . should not be given the jurisdictional brand.” United States v. Humphries, 71 M.J. 209, 211 (C.A.A.F. 2012) (quoting Henderson v. Shinseki, ___ U.S. ___, 131 S.Ct. 1197, 1202–03 (2011)) (internal citations omitted). Instead of a permanent loss of the ability to act, Article 62,UCMJ, as implemented by R.C.M. 908, provides a stay of proceedings upon notice of the appeal. This is true regardless of whether a military judge dismisses some or all of the charges with or without prejudice. See, e.g., United States v. Boehm, 17 U.S.C.M.A. 530, 535, 38 C.M.R. 328, 333 (1968) (holding that dismissal of charges for a speedy-trial violation does not “amount to a finding of not guilty”); United States v. Brooks, 41 M.J. 792, 795–96 (Army Ct. Crim. App. 1995) (holding that dismissal of charges with prejudice did not “amount to a finding of not guilty”); United States v. McClain, 65 M.J. 894, 901 (Army Ct. Crim. App. 2008) (holding that when a trial is ended prior to a decision on guilt or innocence, a retrial is not barred (citing United States v. Scott, 437 U.S. 82, 98–99 (1978))). See also United States v. Thompson, 68 M.J. 308, 313 (C.A.A.F. 2010) (affirming a case where, prior to review under Article 67, UCMJ, an Article 62, UCMJ, appeal vacated the military judge’s ruling to dismiss the charges with prejudice pursuant to a claimed speedy-trial violation). Indeed, Article 62, UCMJ, creates a process whereby the trial is essentially paused until such time as the government withdraws its appeal, or files the appeal with the Court of Criminal Appeals and the appellate court disposes of the issue. We recognize R.C.M. 908(b)(4) does not explicitly state that the government can withdraw its notice of intent to appeal. Furthermore, while R.C.M. 908(b)(6)– (7) provides the government with the option of deciding whether or not to file the appeal, 3 and R.C.M. 908(b)(8) directs the trial counsel to notify the military judge 3 R.C.M. 908(b)(6) provides: Forwarding. Upon written notice [of intent to appeal] to the military judge . . . trial counsel shall promptly and by expeditious means forward the appeal to a representative of the Government designated by the Judge Advocate General. . . . The person designated by the Judge Advocate General shall promptly decide (. . . continued) 5 HILL—ARMY MISC 20120755 and the other parties in the event the government elects not to file the appeal, there is no direct language in the rule that provides for the stay to be lifted. Nonetheless, we find that these provisions should not be interpreted to limit the ability of the government to withdraw its own notice of intent to appeal before that appeal is filed with the Court of Criminal Appeals. “The interpretation of provisions of the R.C.M.” is a question of law that is reviewed de novo. United States v. Dean, 67 M.J. 224, 227 (C.A.A.F. 2009) (citing United States v. Hunter, 65 M.J. 399, 401 (C.A.A.F. 2008)). “Ordinary rules of statutory construction apply in interpreting the R.C.M.” Hunter, 65 M.J. at 401. Reading R.C.M. 908(b)(4) in isolation supports appellee’s argument that the stay can only be terminated, and jurisdiction returned to the trial court, upon disposition by the Court of Criminal Appeals. However, “[s]tatutory construction . . . is a holistic endeavor.” United Savings Ass’n v. Timbers of Inwood Forest Associates, 484 U.S. 365, 371 (1988). See United States v. Curtin, 9 U.S.C.M.A. 427, 430, 26 C.M.R. 207, 210 (1958) (“It is a fundamental principle that in the construction of statutes and regulations the whole and every part thereof must be considered in the determination of the meaning of any of its integral parts.”). In this situation, we must also consider provisions contained elsewhere in the rule, to include R.C.M. 908(b)(6)–(8), so as to ensure that they are not rendered inoperable or ineffective. When R.C.M. 908(b)(4) is read in conjunction with R.C.M. 908(b)(6)–(8), it is clear the trial counsel is not prevented from withdrawing a government appeal. See, e.g., United States v. Santiago, 56 M.J. 610, 612 (N.M. Ct. Crim. App. 2001) (discussing the procedural history of the case, which included the government filing an Article 62, UCMJ, appeal, withdrawing it, then filing a request for (. . . continued) whether to file the appeal with the Court of Criminal Appeals and notify the trial counsel of that decision. Id. (emphasis added). R.C.M. 908(b)(7) provides: Appeal filed. If the United States elects to file an appeal, it shall be filed directly with the Court of Criminal Appeals, in accordance with the rules of that court. Id. (emphasis added). In the U.S. Army, The Judge Advocate General has designated the Chief of the Government Appellate Division, in coordination with the Assistant Judge Advocate General for Military Law and Operations, as the government representative with the authority to decide whether to file an Article 62, UCMJ, appeal with the Army Court of Criminal Appeals. Army Reg. 27-10, Legal Services: Military Justice, para. 12-3 (3 Oct. 2011). 6 HILL—ARMY MISC 20120755 reconsideration). If we applied appellee’s construction of R.C.M. 908(b)(4), these other portions of the R.C.M. would be meaningless. Moreover, if the government elected not to file its appeal with this court, then the case would not be ripe for our review, yet no other court would have authority to act. This would create a type of judicial limbo, where the stay would prevent the trial court from acting but the Court of Criminal Appeals would be without power to act either. Such a construction would frustrate judicial economy by preventing the court-martial from reconsidering and ruling in favor of the appealing party before the appeal is even filed. 4 Accordingly, we hold that the trial court was within its authority to act when the government provided written notice to MJ 1 that it elected not to file an appeal. 5 4 The purpose of the R.C.M. 908(b)(4) stay of proceedings is to ensure that the government has an opportunity for meaningful review by preventing the military judge from moving forward on the charges at issue. R.C.M. 908 analysis at A21-59 (stating that “subsection (1) provides the trial counsel with a mechanism to ensure that further proceedings do not make an issue moot before the Government can file notice of appeal”). It stands to reason, then, that the party benefiting from the stay can terminate the stay by withdrawing the appeal prior to filing it with the Court of Criminal Appeals, thereby mooting the issue. Cf. Browers, 20 M.J. at 358. 5 Our interpretation of R.C.M. 908 results in a procedure similar to that employed in the federal system. See Wuterich, 67 M.J. at 71 (reiterating that Congress intended for Article 62, UCMJ, appeals to be conducted “under procedures similar to [those governing] an appeal by the United States in a federal civilian prosecution” (quoting Browers, 20 M.J. at 359 (alteration in original)). 18 U.S.C. § 3731 is the analogous federal provision that allows for an appeal by the United States in this context. The Federal Rules of Appellate Procedure allow for the appellant to voluntarily dismiss this type of appeal at the trial court level before it is “docketed with the circuit clerk.” Fed. R. App. P. 42. 7 HILL—ARMY MISC 20120755 Reconsideration following Authentication Although the stay was lifted and jurisdiction of the case was with the trial court, MJ 2 ruled that R.C.M. 905(f) 6 and 1102(d) 7—which only allow reconsideration of a ruling prior to authentication of the record of trial—prevented reconsideration of MJ 1’s initial ruling. In making her ruling, MJ 2 applied the limitations found in R.C.M. 905(f) to the procedures used in preparing a government appeal for appellate review. The government argues that this application of R.C.M. 905(f) is erroneous because authentication of a “record of trial” is different than authentication of a “record of proceedings.” We agree with the government and hold that authentication of the record of proceedings in this case did not prevent MJ 1 from reconsidering her earlier decision. While R.C.M. 905(f) is an appropriate avenue for the military judge to reconsider a prior ruling under the circumstances presented in the case, see, e.g., United States v. Daly, 69 M.J. 485, 486 (C.A.A.F. 2011) (discussing the government’s ability to file a request for reconsideration of an order to dismiss charges in an Article 62, UCMJ, case), its limitation concerning reconsideration after completing a record of trial does not apply here. 8 Rule for Courts-Martial 908 provides the detailed procedures for an appeal by the United States when the military judge issues a ruling that terminates the 6 R.C.M. 905(f) provides: Reconsideration. On request of any party or sua sponte, the military judge may, prior to authentication of the record of trial, reconsider any ruling, other than one amounting to a finding of not guilty, made by the military judge. Id. (second emphasis added). 7 R.C.M. 1102(d) provides: When directed. The military judge may direct a post-trial session any time before the record is authenticated. The convening authority may direct a post-trial session any time before the convening authority takes initial action on the case or at such later time as the convening authority is authorized to do so by a reviewing authority. Id. (second emphasis added). 8 Rule for Courts-Martial 905(f) also prohibits reconsideration of a ruling amounting to a finding of not guilty. In this case, neither MJ 2’s nor MJ 1’s ruling to dismiss the charges amounts to a finding of not guilty. Boehm, 38 C.M.R. at 333. Cf. McClain, 65 M.J. at 901 (citing Scott, 437 U.S. at 98–99). 8 HILL—ARMY MISC 20120755 proceedings or excludes evidence that is substantial proof of a fact material in the proceedings. Specifically, R.C.M. 908(b)(5) outlines the process by which the government will complete a record of proceedings for the issues appealed pursuant to Article 62, UCMJ: Upon written notice to the military judge under subsection (b)(3) of this rule, trial counsel shall cause a record of the proceedings to be prepared. Such record shall be verbatim and complete to the extent necessary to resolve the issues appealed. R.C.M. 1103(g), (h), and (i) shall apply and the record shall be authenticated in accordance with R.C.M. 1104(a). The military judge or the Court of Criminal Appeals may direct that additional parts of the proceeding be included in the record; R.C.M. 1104(d) shall not apply to such additions. Id. (emphasis added). This provision distinguishes the record of proceedings from a record of trial and limits the record of proceedings to matters necessary for consideration of the Article 62, UCMJ, appeal. The discussion to R.C.M. 905(f) references R.C.M. 1102(d), which MJ 2 also relied on to reach her findings. Rule for Courts-Martial 1102 provides procedures to conduct post-trial sessions and should not be relied upon to limit a military judge’s authority to act following an interlocutory appeal. The rule gives guidance to the parties on how to conduct a proceeding in revision in order to correct errors, omissions, or an inconsistent action by the court-martial. The rule also provides a process by which to hold post-trial Article 39(a), UCMJ, sessions, but a military judge can only direct such a session prior to authentication of the record of trial. As such, MJ 2 concluded this rule is another basis for the decision that the authentication of the record terminated MJ 1’s authority to review her original decision to dismiss the charges with prejudice. However, by the plain language of the rule, R.C.M. 1102(d) does not apply to an Article 62, UCMJ, appeal. Indeed, the rule in general is entitled “Post-trial sessions,” and each provision refers to proceedings undertaken after a final adjournment of the court-martial. 9 9  The distinction between a record of trial and a record of proceedings is further highlighted by the processing directives outlined by R.C.M 1102(d) versus those encompassed in R.C.M. 908(b). Rule for Courts-Martial 1102(d) provides that the authority to direct a post-trial session transfers from the military judge, to the convening authority, to the reviewing authority. In contrast, R.C.M. 908(b)(5)–(6) provides that upon notice of the intent to appeal, the trial counsel will then forward the appeal directly to the representative of the government designated by The Judge Advocate General, while action by the convening authority is not required.   9 HILL—ARMY MISC 20120755 CONCLUSION A narrow interpretation of the pertinent Rules for Courts-Martial without the use of contextual matters or without regard to the interplay between the various rules leads to a very restrictive conclusion whereby an “authentication” would automatically divest a trial court of authority to take any action on the ruling or order at issue. Here, however, the record of trial was not authenticated within the meaning of R.C.M. 905(f); instead, the record of proceedings was authenticated under R.C.M. 908(b)(5) in order to support the requirements of the Article 62, UCMJ, appeal. Upon the government’s notice of intent to appeal, the proceedings were stayed until such time as either this court ruled on a properly filed appeal or the government withdrew its notice of intent to appeal. Upon withdrawal of its notice of intent to appeal, MJ 1 regained authority to act on the case and was within her discretion pursuant to R.C.M. 905(f) to reconsider and reverse her earlier ruling. Accordingly, MJ 2 erred by concluding otherwise and dismissing the charges. The appeal of the United States pursuant to Article 62, UCMJ, is therefore granted. The ruling of the second military judge, dismissing the charges with prejudice, is vacated and the record will be returned to the military judge for action not inconsistent with this opinion. Senior Judge KERN and Judge ALDYKIEWICZ concur. FORTHE FOR THECOURT: COURT: MALCOLM MALCOLMH.H. SQUIRES, JR. JR. SQUIRES, Clerk of Court Clerk of Court 10 HILL—ARMY MISC 20120755 APPENDIX Timeline 03 July 2011 Initial conditions of liberty imposed on appellee in Iraq 10 July 2011 Additional conditions on liberty imposed on appellee in Iraq 13 August 2011 Charges preferred against appellee just prior to his redeployment to Fort Hood, Texas (the conditions on liberty were lifted, and no further restrictions that would trigger R.C.M. 707 were placed on the appellee) 01 September 2011 Original date of the Article 32 (Defense delay until 6 September 2011) 07 September 2011 Article 32 Investigation 02 December 2011 Charges referred 06 December 2011 Referred charges served on the court 10 February 2012 Arraignment and Article 39a Session, MJ 1 presiding 08 March 2012 Ruling on Defense Motion to Dismiss, MJ 1 presiding 09 March 2012 Notice of original Article 62 Appeal filed 23 March 2012 MJ 1 provides notice to counsel of her intent to conduct a proceeding in revision in order to correct her original Ruling on Defense Motion to Dismiss 27 March 2012 Government notice of withdrawal of original Article 62 Appeal 28 March 2012 Reconsideration of Ruling on Defense Motion to Dismiss, MJ 1 presiding 25 June 2012 Article 39a Session, MJ 2 presiding, oral ruling that case is dismissed, with prejudice 26 June 2012 Government files Request for Reconsideration, Denied by MJ 2 27 June 2012 Notice of current Article 62 Appeal filed 11

01-03-2023

01-09-2015

https://www.courtlistener.com/api/rest/v3/opinions/128067/

538 U.S. 913 SILVAv.KALBAC ET AL. No. 02-8641. Supreme Court of United States. March 10, 2003. 1 CERTIORARI TO THE DISTRICT COURT OF APPEAL OF FLORIDA FOR THE THIRD DISTRICT. 2 Dist. Ct. App. Fla., 3d Dist. Certiorari denied. Reported below: 809 So. 2d 80.

01-03-2023

04-28-2010

https://www.courtlistener.com/api/rest/v3/opinions/128082/

538 U.S. 914 LONDONv.MILLER, SUPERINTENDENT, EASTERN CORRECTIONAL FACILITY. No. 02-8744. Supreme Court of United States. March 10, 2003. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT. 2 C. A. 2d Cir. Certiorari denied.

01-03-2023

04-28-2010

https://www.courtlistener.com/api/rest/v3/opinions/1001392/

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 99-2633 JERRY MEYERS JOHNSON, Petitioner - Appellant, versus INTERNAL REVENUE SERVICE, Respondent - Appellee. Appeal from the United States Tax Court. (Tax Ct. No. 14639-97) Submitted: April 13, 2000 Decided: April 19, 2000 Before WIDENER and WILKINS, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Jerry Meyers Johnson, Appellant Pro Se. Ann Belanger Durney, Michelle Contos France, UNITED STATES DEPARTMENT OF JUSTICE, Wash- ington, D.C., for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Jerry Meyers Johnson appeals from the tax court’s order deter- mining a deficiency with respect to his 1994 federal income tax liability. Our review of the record and the tax court’s opinion discloses no reversible error. Accordingly, we affirm on the rea- soning of the tax court. See Johnson v. Internal Revenue Service, No. 14639-97 (U.S.T.C. Nov. 2, 1999). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 2

01-03-2023

07-04-2013

https://www.courtlistener.com/api/rest/v3/opinions/2898473/

NO. 07-07-0473-CR, 07-07-0474-CR, 07-07-0475-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B NOVEMBER 19, 2009                                        ______________________________ CALVIN JARROD HESTER, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 108TH DISTRICT COURT OF POTTER COUNTY; NO. 54,995-E, 54,996-E, 54,997-E; HONORABLE ABE LOPEZ, JUDGE _______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. MEMORANDUM OPINION           Appellant Calvin Jarrod Hester was indicted for the offenses of possession of marijuana, possession of cocaine with intent to distribute, enhanced, and possession of methamphetamine with intent to distribute, enhanced. Each indictment also included a deadly weapon notice. At trial, appellant plead guilty to each of the three charged offenses and plead “true” to the enhancements alleged in the cocaine and methamphetamine possession indictments. Appellant elected to have the trial court decide punishment and to decide the deadly weapon issue for each offense.           The State presented evidence to show that Amarillo police officers executed a search warrant at a one-bedroom house occupied by appellant and his girlfriend. Both were present when the warrant was executed. Officers found marijuana, methamphetamine, cocaine, and drug paraphernalia in various locations in the small house, along with nearly $1,000 in cash. The house was equipped with video cameras inside. Police found a .380 semi-automatic pistol with a magazine, stored in a Crown Royal bag. The bag was in the bedroom inside a backpack located on the floor, next to a safe and a dresser. The safe contained coins and gift cards. One drawer of the dresser contained marijuana. The backpack also contained a homemade plastic marijuana bong. Appellant told the police all the drugs were his, for his personal use. Both appellant and his girlfriend were arrested.           The next day, appellant’s girlfriend placed a phone call to her mother from the Potter County Jail, telling her the police missed a large amount of cash near the bathtub and asking that she retrieve the cash. Police intercepted the call and executed a second warrant, finding nearly $8,000 in cash in the bathroom of appellant’s residence, concealed in a Crown Royal bag that appellant admitted was his.           Appellant testified at trial. Although he acknowledged the money and drugs were his, he said the .380 pistol was not his. He testified he did not know where it came from. He said the backpack was not his, and that it looked like “a female’s bag.” He said the bedroom contained clothes belonging to another female friend, in addition to his girlfriend’s clothes. He further stated that Manuel Campbell, referred to in the record as a “known drug dealer,” stayed at the house occasionally and was there just before the police arrived, cooking crack cocaine. Appellant’s testimony also suggested Campbell was angry with him and had reasons to “get” appellant.           After hearing the evidence presented, the judge found it sufficient to show appellant used the pistol to facilitate his possession and distribution of contraband and entered a deadly weapon finding for each offense. On appeal, through six issues, appellant challenges the legal and factual sufficiency of the evidence to support the deadly weapon finding in each cause. We affirm.                                                                 Analysis          By appellant’s six issues, he contends the evidence presented did not show that the gun was his, that it was in close proximity to drugs, that he was the sole occupant of the house, or that other evidence directly linked him to the gun. Evidentiary Sufficiency Supporting Deadly Weapon Finding            To review evidence for legal sufficiency, we must view the evidence in the light most favorable to the verdict and determine if a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Narvaiz v. State, 840 S.W.2d 415, 423 (Tex.Crim.App.1992), cert. denied, 507 U.S. 975, 113 S. Ct. 1422, 122 L. Ed. 2d 791 (1993) citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979).           A factual sufficiency review requires us to view all of the evidence in a neutral light and ask whether the jury was rationally justified in finding guilt (or an affirmative finding) beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). We apply the same analysis to evidence supporting an affirmative deadly weapon finding. See Mendez v. State, No. 01-07-00680-CR, 2008 WL 5263415, *2 (Tex.App.–Houston [1st Dist.] Dec. 18, 2008, no pet.) (mem. op., not designated for publication) (conducting sufficiency review of evidence supporting deadly weapon finding). Evidence is factually insufficient when the evidence supporting the conviction is so weak that the verdict seems clearly wrong and manifestly unjust, or the evidence supporting the conviction is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Grotti v. State, 273 S.W.3d 273, 283 (Tex.Crim.App. 2008); Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App. 2007); Sanchez v. State, 243 S.W.3d 57, 72 (Tex.App.–Houston [1st Dist.] 2007, pet. ref’d). Our evaluation should not intrude upon the fact finder's role as the sole judge of the weight and credibility given to any witness's testimony. See Fuentes v. State, 991 S.W.2d 267, 271 (Tex.Crim.App.1999). The weight to be given contradictory testimonial evidence is within the sole province of the fact-finder. See Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Crim.App. 1997). In conducting a factual-sufficiency review, we must discuss the evidence that, according to the appellant, most undermines the trial court's findings. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).           An affirmative deadly weapon finding may be made when the State establishes, inter alia, (1) that a deadly weapon was used or exhibited during the commission of a felony offense or (2) that the defendant was a party to the offense and knew that a deadly weapon would be used or exhibited. Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(2) (Vernon Supp. 2008). Any employment of a firearm or other deadly weapon, even its simple possession, to facilitate the commission of another offense constitutes a "use" of the weapon. Patterson v. State, 769 S.W.2d 938, 941 (Tex.Crim.App.1989).           In Patterson, officers executing a search warrant found the defendant sitting on a couch near a table on which methamphetamine was located. Id. at 939. A pistol was on the couch beside the defendant's leg. Id. The court held that the evidence supported a finding that the defendant used the pistol to facilitate his possession of the methamphetamine. Id. at 942. In Gale v. State, twenty pounds of marihuana, several unloaded firearms, and ammunition for those firearms were found in the bedroom closet of the defendant's house. Gale v. State, 998 S.W.2d 221, 223 (Tex.Crim.App.1999). The court held that the evidence supported a finding that the defendant used the weapons to facilitate his possession of the marijuana. Id. at 226. In Coleman v. State, drugs and drug paraphernalia were found throughout the defendant's residence. Coleman v. State, 145 S.W.3d 649, 650-51 (Tex.Crim.App. 2004). In a bedroom, officers found a pistol, a rifle, and a safe containing bottles of PCP and a large amount of money. Id. at 651. The court held that a rational trier of fact could find that the defendant used the firearms to facilitate his possession and distribution of the drugs. Id. at 655. In Wynn v. State, the court reversed a deadly weapon finding because the defendant was charged as a party to the offense and the evidence showed he was not in the house with the drugs and guns, he was not the only occupant of the house, the owner of the guns was not determined, and no guns or drugs were found in the only room connected with the defendant. Wynn v. State, 847 S.W.2d 357, 360-61 (Tex.App.–Houston [1st Dist.] 1993), aff’d, 864 S.W.2d 539 (Tex.Crim.App. 1993).           Courts have recognized that it is common for narcotics dealers to possess firearms for the purpose of protecting themselves because they possess large amounts of drugs and cash. See, e.g., Moreno v. State, 978 S.W.2d 285, 289 (Tex.App.–Fort Worth 1998, no pet.). See also Wilson v. State, 132 S.W.3d 695, 698 (Tex.App.–Amarillo 2004, pet. ref’d) (recognizing it is “rather settled” that weapons are associated with the drug trade). The Court of Criminal Appeals has noted that a firearm is “used” during the commission of the felony offense of possessing contraband in the sense that the firearm protects and facilitates the care, custody and management of the contraband. Gale, 998 S.W.2d at 224. See also Dimas v. State, 987 S.W.2d 152, 154-55 (Tex.App.–Fort Worth 1999, pet. ref’d) (narcotics supervisor testified it was customary for drug dealers to have firearms and “use” them to protect themselves, their drugs, and their money).           Appellant argues his case is distinguishable from Patterson, and is more similar to Wynn. He points to evidence showing he was not the only occupant of the house, and that his girlfriend knew the location of the $8000 hidden in the bathroom. But the evidence shows appellant was the primary occupant of the small house. Among the items police found there was a rent receipt in appellant’s name. Appellant testified his relationship with his girlfriend was of long standing, and testified she, like appellant, sold marijuana. Neither her presence in the house nor her knowledge of the hidden cash weakens the incriminating inferences properly drawn from the presence of the pistol in the bedroom. See also Charles v. State, 915 S.W.2d 238, 241 (Tex.App.–Beaumont 1996, pet. ref'd) (also distinguishing Wynn).           Appellant also points out the evidence of the locations at which the different drugs were found in the house is not specific, and argues there is thus no evidence the pistol and the drugs were found in close proximity. We disagree. Appellant testified the marijuana blunts were in the dresser drawer, and other evidence also shows marijuana in the bedroom. Appellant also testified powder cocaine and additional marijuana were found in the refrigerator in the kitchen. While the pistol was not in the same container as any of the drugs, it was found very near the dresser. Further, the bedroom and the kitchen of the house were immediately adjacent, so the pistol was within feet of the drugs located there.           Citing Wynn, appellant also argues there is no evidence his fingerprints were found on the gun or in the room where it was found, others had access to the house and no evidence shows he owned the gun. Appellant is correct the record contains no fingerprint evidence. But fingerprint evidence was unnecessary to establish that appellant lived in the one-bedroom house, that the room in which the pistol was found was his bedroom, and that the backpack containing the pistol was on the floor along the wall between the bedroom and the bathroom, covered by a blanket. Appellant testified to those facts. Appellant denied the gun was his, but it was in his bedroom among other items he acknowledged were his, and the trial court was not required to accept his denial. See Cain, 958 S.W.2d at 408-09.           By his guilty plea, appellant admitted he possessed the cocaine and methamphetamine with the intent to distribute it. He also plead guilty to possession of marijuana and testified he sold marijuana blunts, and “a block of weed with a whole bunch of rolled up blunts” were in the bedroom dresser. The gun was found inside the nearby backpack in a Crown Royal bag, and appellant acknowledged ownership of the $8000 cash found in another stashed Crown Royal bag. Based on the standard discussed in Patterson, 769 S.W.2d at 941, the fact-finder could, from the evidence it heard, infer that appellant was in possession of the gun found in his bedroom and it was used to protect and facilitate his possession of drugs. See Hooper v. State, 214 S.W.3d 9, 15 (Tex.Crim.App. 2007) (discussing permissible inferences). The nature of the weapon supports that conclusion. See Coleman, 145 S.W.3d at 655 (Cochran, J., concurring).           Viewing all the evidence in light most favorable to the judge’s verdict, we find that the evidence is sufficient to allow the fact finder to determine beyond a reasonable doubt that appellant possessed the weapon and used it to facilitate possession and intended distribution of marijuana, cocaine, and methamphetamine. Accordingly, we find the evidence legally sufficient to support the trial court’s finding that appellant used a deadly weapon during the commission of the three drug offenses. Appellant’s first three issues are overruled.           On the same evidence, we find the evidence is also factually sufficient to support the trial court’s affirmative deadly weapon findings. Appellant testified that his girlfriend and Campbell had access to his home, and effectively argues the gun could have belonged to either of them. As noted, he also testified Campbell was out to “get” him. Viewing the evidence in a neutral light, we find that favoring the findings is not so weak, nor the contrary evidence appellant emphasizes so strong, as to make the trial court’s findings clearly wrong or manifestly unjust. Accordingly, we hold that the evidence is factually sufficient to support the finding that appellant used a deadly weapon during the commission of the three narcotics offenses. We overrule appellant’s fourth, fifth and sixth issues.           Having overruled appellant’s issues, we affirm the trial court’s judgment.                                                                                  James T. Campbell                                                                                     Justice         Do not publish.   talic;} p.NewDocument, li.NewDocument, div.NewDocument {mso-style-name:"New Document"; mso-style-unhide:no; mso-style-qformat:yes; mso-style-next:Normal; margin-top:0in; margin-right:0in; margin-bottom:10.0pt; margin-left:0in; line-height:115%; mso-pagination:widow-orphan; font-size:12.0pt; mso-bidi-font-size:11.0pt; font-family:"Arial","sans-serif"; mso-fareast-font-family:Arial; mso-bidi-language:EN-US;} span.BalloonTextChar {mso-style-name:"Balloon Text Char"; mso-style-noshow:yes; mso-style-priority:99; mso-style-unhide:no; mso-style-locked:yes; mso-style-link:"Balloon Text"; mso-ansi-font-size:8.0pt; mso-bidi-font-size:8.0pt; font-family:"Tahoma","sans-serif"; mso-ascii-font-family:Tahoma; mso-hansi-font-family:Tahoma; mso-bidi-font-family:Tahoma; mso-bidi-language:EN-US;} span.HeaderChar {mso-style-name:"Header Char"; mso-style-noshow:yes; mso-style-priority:99; mso-style-unhide:no; mso-style-locked:yes; mso-style-link:Header; mso-ansi-font-size:11.0pt; mso-bidi-font-size:11.0pt; mso-bidi-language:EN-US;} span.FooterChar {mso-style-name:"Footer Char"; mso-style-priority:99; mso-style-unhide:no; mso-style-locked:yes; mso-style-link:Footer; mso-ansi-font-size:11.0pt; mso-bidi-font-size:11.0pt; mso-bidi-language:EN-US;} span.FootnoteTextChar {mso-style-name:"Footnote Text Char"; mso-style-noshow:yes; mso-style-priority:99; mso-style-unhide:no; mso-style-locked:yes; mso-style-link:"Footnote Text"; mso-bidi-language:EN-US;} .MsoChpDefault {mso-style-type:export-only; mso-default-props:yes; font-size:10.0pt; mso-ansi-font-size:10.0pt; mso-bidi-font-size:10.0pt; mso-ascii-font-family:Arial; mso-fareast-font-family:Arial; mso-hansi-font-family:Arial; mso-bidi-font-family:Arial;} /* Page Definitions */ @page {mso-footnote-separator:url("07-10-0289.cr%20opinion_files/header.htm") fs; mso-footnote-continuation-separator:url("07-10-0289.cr%20opinion_files/header.htm") fcs; mso-endnote-separator:url("07-10-0289.cr%20opinion_files/header.htm") es; mso-endnote-continuation-separator:url("07-10-0289.cr%20opinion_files/header.htm") ecs;} @page WordSection1 {size:8.5in 11.0in; margin:1.0in 1.0in 1.0in 1.0in; mso-header-margin:.5in; mso-footer-margin:.5in; mso-title-page:yes; mso-even-header:url("07-10-0289.cr%20opinion_files/header.htm") eh1; mso-header:url("07-10-0289.cr%20opinion_files/header.htm") h1; mso-even-footer:url("07-10-0289.cr%20opinion_files/header.htm") ef1; mso-footer:url("07-10-0289.cr%20opinion_files/header.htm") f1; mso-first-header:url("07-10-0289.cr%20opinion_files/header.htm") fh1; mso-first-footer:url("07-10-0289.cr%20opinion_files/header.htm") ff1; mso-paper-source:0;} div.WordSection1 {page:WordSection1;} --> NO. 07-10-0289-CR   IN THE COURT OF APPEALS   FOR THE SEVENTH DISTRICT OF TEXAS   AT AMARILLO   PANEL E   JULY 21, 2011     ANDREW JOSEPH WILSON,                                                                                              Appellant v.   THE STATE OF TEXAS,                                                                                             Appellee ___________________________   FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY;   NO. 1146243D; HONORABLE RUBEN GONZALEZ, PRESIDING     Memorandum Opinion     Before QUINN, C.J., PIRTLE, J., and BOYD, S.J.[1]             Andrew Joseph Wilson was convicted of unlawfully posessing a firearm after pleading guilty to the charge.  On appeal, he challenges the trial court’s denial of his motion to suppress the firearm, which weapon was discovered in his vehicle.  We affirm the judgment.              On January 21, 2009, Officers Nickolas Brown and Ryan Sparks were driving down a residential street in a moderate to high crime area in Fort Worth.  It was around 2:00 a.m.  They noticed a vehicle parked on the street facing the wrong direction.  They decided to cite it, and as they began to place the citation on the vehicle, appellant was discovered sitting in it.             When questioned why he was so parked, appellant replied that he was waiting for his uncle.  However, he was unable to supply a last name for the man and then admitted that he was waiting for a friend.  The officers obtained appellant’s identification, checked it with dispatch, and discovered that he had outstanding arrest warrants.  This resulted in their placing him under arrest.  At that point, the officers also decided to impound the car and contacted a wrecker for that purpose.  Before the wrecker removed the vehicle, it was searched, and the officers found a handgun in the console during that search.  It was that evidence that appellant sought to suppress.  And, he attempted to do so on the grounds that the search was neither a permissible search incident to arrest nor an inventory search.             We review the trial court’s ruling on a motion to suppress under the standard discussed in Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005).  In doing so, we defer to the trial court’s resolution of historical fact but review de novo its interpretation of the law.  Id. at 493.  So too do we look at the totality of the circumstances to determine the legitimacy of the search.  Kothe v. State, 152 S.W.3d 54, 62-63 (Tex. Crim. App. 2004).                  Appellant argues that because the gun was not accessible to him at the time the search was conducted, it could not be a search incident to arrest.  Thus, it violated the tenets of Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009).  Per the latter, police may search a vehicle incident to arrest only it if is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense underlying the arrest.  Id. 556 U.S. at __; 129 S. Ct. 1719.  Officer Brown conceded at trial that appellant was not capable of returning to his vehicle and that there was no reason to believe there was any evidence in the car pertaining to his arrest.               Yet, Brown also testified that the officers were unable to leave the vehicle where it was located because it was parked illegally, they knew of no one with whom to leave it and, consequently, they decided to impound it.[2]  Furthermore, the wrecker was contacted before the search occurred and the gun found.  Additionally, Officer Sparks testified that appellant’s vehicle had property in it that the officers did not want to be liable for in the event of theft.              Finally, exhibits at the suppression hearing included a copy of the Fort Worth vehicle impoundment procedures and a copy of the inventory from the vehicle.  The former authorized impoundment if the vehicle was lawfully parked and the arrestee asked that another take control of it.  Neither condition applied, however, because the car was illegally parked and appellant never sought to make a request.             Police officers may lawfully inventory the contents of a vehicle after an arrest if the inventory is conducted pursuant to lawful impoundment of the vehicle.  Benavides v. State, 600 S.W.2d 809, 810 (Tex. Crim. App. 1980); accord St. Clair v. State, 338 S.W.3d 722, 724 (Tex. App.–Amarillo 2011, no pet.) (stating that police may conduct an inventory search of a vehicle if impoundment is the only reasonable alternative to protect it).  And, even if a search does not qualify as a search incident to arrest, it may still qualify as an inventory search.  Moskey v. State, 333 S.W.3d 696, 702 (Tex. App.– Houston [1st Dist.] 2010, no pet.).  Appellant argues that any alleged inventory search was a pretext because the police department impoundment procedures did not authorize an impoundment in this situation, there was no danger to the vehicle or its contents because the officers had the key, the officers were originally only going to leave a citation and there were other alternatives to impoundment.  However, officers are not required to independently investigate possible alternatives to impoundment absent some objectively demonstrable evidence that alternatives existed.  St. Clair v. State, supra; Garza v. State, 137 S.W.3d 878, 882 (Tex. App.–Houston [1st Dist.] 2004, pet. ref’d).  So, the contention that they could have solicited approval from others to leave the car there is of no moment.  So, given the totality of circumstances appearing of record, we conclude that the trial court could have legitimately ruled that the search conducted was a permissible inventory search. Accordingly, the judgment is affirmed.                                                                                                                                                             Per Curiam Do not publish.     [1]John T. Boyd, Senior Justice, sitting by assignment. [2]A man claiming to be a friend of appellant approached the officers after appellant had been arrested, but the friend also had outstanding warrants and was arrested. Â

01-03-2023

09-08-2015

https://www.courtlistener.com/api/rest/v3/opinions/3063557/

[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ FILED U.S. COURT OF APPEALS No. 08-11342 ELEVENTH CIRCUIT APRIL 14, 2009 Non-Argument Calendar THOMAS K. KAHN ________________________ CLERK D. C. Docket No. 03-80056-CR-WPD UNITED STATES OF AMERICA, Plaintiff-Appellee, versus KARLTON SPAULDING, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida _________________________ (April 14, 2009) Before BIRCH, MARCUS and ANDERSON, Circuit Judges. PER CURIAM: Karlton Spaulding (“Spaulding”), a federal prisoner, appeals his convictions for cocaine offenses and carrying a firearm during a drug trafficking crime. Spaulding argues that the district court erred in denying his motion to dismiss the indictment on grounds that the four-year and eight-month delay between his indictment and trial violated his Sixth Amendment right to a speedy trial. We find no reversible error and AFFIRM his convictions. I. BACKGROUND On 5 September 2002, Spaulding and Marlon Shanahan (“Shanahan”) were arrested after purchasing seven kilograms of cocaine for $81,000 from an undercover officer in West Palm Beach, Florida. R10 at 116-117, 120-122, 124. The transaction was recorded on audio and videotape, as were previous negotiations. Id. at 118-23; R9 at 63-122. Agents recovered a loaded handgun, which Spaulding had purchased, from an automobile used during the exchange. R10 at 56, 60-61, 131. In order to preserve the undercover officer’s identity for other investigations, authorities pretended to arrest the undercover officer and released Spaulding and Shanahan. Id. at 122-23; R3 at 45, 84. On 22 April 2003, a federal grand jury in the Southern District of Florida indicted Spaulding and Shanahan for (1) conspiracy to possess with intent to distribute cocaine and (2) attempted possession with intent to distribute cocaine, both in violation of 21 U.S.C. §§ 841 and 846. R1-3 at 1-2. Spaulding was 2 charged in a third count with possessing a firearm during a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A)(i). Id. at 2-3. The indictment was sealed until Spaulding’s arrest pursuant to the government’s motion. R1-1; R1-2. Because authorities were unable to locate either Spaulding or Shanahan, both men were deemed fugitives in July 2003. R1-6. Authorities finally arrested Spaulding in DeKalb County, Georgia on 12 October 2007, at which time his indictment was unsealed. R1-8; R1-23 at 2; R3 at 86-87. Spaulding was arraigned on 14 November 2007 and pled not guilty. R1- 15. On 7 December 2007, Spaulding filed a motion to dismiss the indictment on grounds that he had been deprived of his Sixth Amendment right to a speedy trial. R1-23. Several federal agents testified at a two-day hearing about their efforts to locate Spaulding. After Spaulding’s 2002 arrest and release, the undercover agent involved in the drug sale twice called Spaulding to see if he would come back to Florida. R3 at 84-85. FBI Agent Vincent Dreaden then began looking for Spaulding at his last known residence in McRae, Georgia, located in Telfair County. Id. at 4. After several weeks of investigation, Agent Dreaden met with the Telfair County Sheriff and with Spaulding’s father, a deputy sheriff in Telfair County. Id. at 5-6. Although Spaulding’s father had no idea where his son was, he 3 promised to assist the FBI. Id. Agent Dreaden then tracked down Shanahan’s wife and searched her house, her mother’s house, and her grandmother’s house in hopes of finding Shanahan and Spaulding. Id. at 7. He and FBI Agent Brett Racine also investigated a residence in Warner Robbins, Georgia, after receiving information that Spaulding might be living there. Id. at 12, 32. Agent Racine spent several months surveilling a house in Warner Robbins and showed Spaulding’s photograph to residents and local law enforcement officers. Id. at 33-35. Meanwhile, Agent Dreaden continued to keep in contact with the police in McRae and periodically drove by Spaulding’s listed residence to see if the car Spaulding used to drive was there. Id. at 18-19, 23. He also sent Spaulding’s photographs to the FBI office in West Palm Beach. Id. at 12. In addition to the FBI agents in the Atlanta Division, the Miami Division assisted in the hunt for Spaulding. Id. at 42, 49. Special Agent Michael Donohoe searched public databases for credit cards using Spaulding’s social security number. Id. at 46-47. Those databases indicated that Spaulding’s address in McRae had not changed since 2002. Id. at 47. Agent Donohoe also obtained Spaulding’s driver’s license through the Georgia Department of Motor Vehicles but it only listed a post office box as his address. Id. The FBI conducted “mail covers” in 2004 and 2006 where the front covers of all mail sent to various 4 addresses associated with Spaulding were copied and forwarded to the FBI. Id. at 48, 51, 71-72. Moreover, Agent Donohoe subpoenaed phone records to ascertain a phone number for Spaulding and placed his name in the NCIC database, a national computer system that would alert police officers to Spaulding’s outstanding arrest warrant. Id. at 49, 52. He continued to run Spaulding’s name through computer databases at least twice a year. Id. at 67. Although Agent Donohoe obtained records for Spaulding’s 1999 conviction for aggravated assault, he did not contact Spaulding’s probation officer because he determined that Spaulding had been released early from probation in February 2001.1 R3 at 62-64. In October 2007, a DeKalb County police officer arrested Spaulding for failing to yield to a pedestrian. Id. at 86-87. After Spaulding was fingerprinted, authorities discovered he had an outstanding arrest warrant. Id. at 87. Spaulding told police he was living in Decatur, Georgia. Id. at 82. The police called the residence and learned that Spaulding had been living there sporadically for the last five years with his mother and grandmother. Id. at 83. The car that Spaulding was driving was registered to his wife, Kelly Melvin, whom Spaulding had married in November 2002. Id. at 77-78, 80, 87-88. The district court denied Spaulding’s motion to dismiss the indictment. R1- 1 Court records indicate that Spaulding’s probation ended in February 2004, however. R4-34. 5 31 at 5. The court found there was no presumption of prejudice and that Spaulding had not shown actual prejudice. Id. A jury convicted Spaulding on all charges and he was sentenced to a total of 181 months of imprisonment and five years of supervised release. R1-72 at 1-3. This appeal followed. II. DISCUSSION “Determination of whether a defendant’s constitutional right to a speedy trial has been violated is a mixed question of law and fact.” United States v. Ingram, 446 F.3d 1332, 1336 (11th Cir. 2006) (quotation marks and citation omitted). We review the district court’s legal conclusions de novo and its factual findings for clear error. See id. A defendant’s Sixth Amendment right to a speedy trial cannot be quantified into a specific number of days or months. See Vermont v. Brillon, ___ U.S. ___, ___ S. Ct. ___, No. 08-88, 2009 WL 578642, at *6 (U.S. Mar. 9, 2009). The right must be evaluated under the particular circumstances of each case using a balancing test which weighs the conduct of both the government and the defendant. See id. Relevant factors include the “‘[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.’” Id. (quoting Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192 (1972)). The defendant must prove actual prejudice unless the first three factors all weigh 6 heavily against the government. See Ingram, 446 F.3d at 1336. We first evaluate the length of the delay between the date of the indictment and the trial date. See id. at 1337 n.3. Any delay beyond one year is “presumptively prejudicial” and triggers further analysis under the Barker test. See id. at 1336 (quotation marks and citation omitted). The district court correctly found, and the government concedes, that the length of the four-year, eight-month delay weighs in Spaulding’s favor and warrants consideration of the remaining factors. Spaulding maintains that the district court erred in concluding that the reason for the delay, the second Barker factor, only weighed slightly in his favor. Spaulding agrees with the district court’s finding that he did not actively evade apprehension. He contends that government agents were not diligent in searching for him, however, because: (1) they did not contact his mother, grandmother, or probation officer; (2) they did not check tax records using his social security number, which would have revealed his employment with an auto dealership in Decatur, Georgia and his Decatur address2 ; (3) they did not investigate whether he was married or contact his wife; and (4) they did not search the internet, which 2 Although Spaulding apparently did not file any income tax returns from 2002 to 2007, his employer filed 1099 forms in 2004 and 2005 that listed Spaulding as an employee and listed Spaulding’s Decatur address. R4 at 15-16, 37-38. 7 would have shown that Spaulding had been fighting professionally under the name of “Carlton Spaulding” in Atlanta since December 2004 (R4-45). The government bears the burden of explaining the reason for the delay. See Ingram, 446 F.3d at 1337. Invalid reasons include “[g]overnment actions which are tangential, frivolous, dilatory, or taken in bad faith.” United States v. Schlei, 122 F.3d 944, 987 (11th Cir. 1997) (citation omitted). For example, the government may not deliberately delay a trial in order to weaken a defendant’s case. See Barker, 407 U.S. at 531, 92 S. Ct. at 2192. On the other hand, a missing witness is a valid reason justifying a delay. See id., 92 S. Ct. at 2192. Where the missing individual is the defendant, “the government is not required to exhaust all conceivable avenues” in finding him. United States v. Bagga, 782 F.2d 1541, 1543 (11th Cir. 1986). The Sixth Amendment mandates only a “diligent, good-faith effort” on behalf of the government to find the defendant and bring him to trial. Id. (quotation marks and citation omitted). Accordingly, if the government pursues a missing defendant with reasonable diligence from his indictment to his arrest, then no speedy trial violation exists. See Doggett v. United States, 505 U.S. 647, 656, 112 S. Ct. 2686, 2693 (1992). This conclusion generally holds no matter how great the delay, so long as the defendant cannot show specific prejudice to his defense. See id., 112 S. Ct. at 2693. 8 Government negligence falls somewhere in between diligent prosecution and bad faith delay. See id. at 656-57, 112 S. Ct. at 2693. Negligence is a “more neutral reason” that counts less heavily against the government. See Barker, 407 U.S. at 531, 92 S. Ct. at 2192. The longer the delay, the more heavily the government’s negligence weighs against it. See Doggett, 505 U.S. at 657-58, 112 S. Ct. at 2693-94 (concluding that eight-and-a-half year delay between indictment and trial, six years of which was attributable to the government’s negligence, violated defendant’s speedy trial right). If the defendant is free and residing outside the jurisdiction where the indictment was returned, however, the government’s negligence “does not necessarily tip the scale” in the defendant’s favor. Bagga, 782 F.2d at 1543. The record supports the district court’s finding that the government’s actions lay “in the middle ground between diligence and bad faith; but closer to diligence than bad faith.” R1-31 at 4. The evidence established that government agents consulted with law enforcement agencies in Georgia and Florida; enlisted the help of Spalding’s father; searched public and law enforcement databases; surveilled suspected residences; interviewed witnesses and showed them photographs of Spaulding; monitored mail sent to relatives; subpoenaed telephone records; contacted the Georgia Department of Motor Vehicles; utilized the NCIC database; 9 and attempted to lure Spaulding back to Florida after his arrest. Based on this evidence, the district court found that “the [g]overnment continued to periodically monitor the situation in an effort to locate Spaulding” and “consistently pursued Spaulding from indictment to arrest.” Id. The district court also found “no evidence that the government intentionally held back its prosecution to gain some impermissible advantage at trial.” Id. As for the seven-month delay in indicting Spaulding, the district court likewise found that no bad faith had been shown because the government was protecting on-going investigations involving the undercover agent. Id. at 5. None of these findings are clearly erroneous. It is true the government may have been able to do more. Yet its failure to do so was not egregious given its continuous, good-faith efforts to locate Spaulding coupled with the fact that Spaulding was living in a different state than where the indictment was returned. Thus, although the post-indictment delay here was longer than the two-year delay in Ingram, the government’s concerted efforts to locate Spaulding greatly exceeded the “less than weak” attempts of the single law enforcement agent pursuing Ingram. Ingram, 446 F.3d at 1339-40 (concluding that the government’s negligence weighed heavily against it where the arresting agent knew where the defendant lived and worked, failed to contact his brother who was a policeman, and did not refer the case to any other law enforcement 10 agency).3 We therefore conclude that the second factor does not weigh heavily against the government. The third factor is the defendant’s assertion of his right to a speedy trial. See id. at 1336. If the defendant knew of the indictment years before his arrest but waited until he was arrested to invoke his right to a speedy trial, then this factor weighs heavily against him. See Doggett, 505 U.S. at 653, 112 S. Ct. at 2691. However, if the defendant did not learn about the indictment until his arrest, and afterwards promptly asserted his speedy trial right, then this factor weighs heavily against the government. See Ingram, 446 F.3d at 1335, 1340. The district court found that Spaulding invoked his speedy trial right within a month of his initial appearance. R1-31 at 4. Nevertheless, the district court concluded that this factor did not weigh heavily in his favor because Spaulding knew of the possible criminal charges before his 2007 arrest. Id. Spaulding disputes this finding as clearly erroneous. He emphasizes that the indictment remained sealed until after his 2007 arrest, and insists that he was never informed that he would be charged or that there were pending charges against him when he was released in September 2002. We need not determine whether the district court clearly erred in finding that 3 The two-year post-indictment delay also weighed more heavily against the government in Ingram because of the added two-and-a-half-year pre-indictment delay. See id. at 1339. 11 Spaulding knew of the possible criminal charges. Even assuming that Spaulding is correct and that the third factor weighed heavily in his favor, Spaulding would still be required to show actual prejudice because the reason for the delay did not weigh heavily against the government. See Ingram, 446 F.3d at 1336 (noting that only if “all three of these factors weigh heavily against the Government, the defendant need not show actual prejudice”); see also Schlei, 122 F.3d at 988 (concluding that the defendant must establish actual prejudice because the reasons for the delay weighed in the government’s favor). In order to prove actual prejudice, the accused must demonstrate one of the following: (1) oppressive pretrial incarceration, (2) anxiety and concern, or (3) possible impairment of his defense. See Barker, 407 U.S. at 532, 92 S. Ct. at 2193. Spaulding contends that only the third element, his ability to prepare his case, was affected by the delay. Prejudice may be shown where a witness dies, disappears, or is unable to recall distant events. See id., 92 S. Ct. at 2193. On the other hand, a defendant must proffer more than “conclusory assertions of prejudice” or “unsubstantiated allegations of witnesses’ faded memories.” United States v. Hayes, 40 F.3d 362, 366 (11th Cir. 1994). No actual prejudice has been shown here. Spaulding submits the delay hampered his entrapment defense because he could not properly investigate 12 whether two drug dealers, Shanahan and Jose “Primo” Castillo, influenced him to commit the crimes. Yet Spaulding did not call these (or any) individuals as witnesses at trial. R11 at 86. Nor does he claim that they were unavailable to testify or that their memories had faded. It is also unclear how these drug dealers could have supported an entrapment defense given that neither men were working for the government or were aware of the undercover agent’s identity. See United States v. Padron, 527 F.3d 1156, 1160 (11th Cir. 2008) (noting that a successful entrapment defense requires both government inducement of the crime and the defendant’s lack of predisposition). In any event, the jury heard the tape recordings of the September 2002 drug transaction as well as previous conversations leading up to that incident. Spaulding’s bare assertion of prejudice, without more, is insufficient to establish actual prejudice. Accordingly, his claim of a speedy trial violation fails. The district court properly denied his motion to dismiss the indictment on this basis. III. CONCLUSION The record in this case does not establish that Spaulding was deprived of his Sixth Amendment right to a speedy trial. Although there was a substantial pre-trial delay, the government made numerous efforts to locate Spaulding in good faith. The reason for the delay thus did not weigh heavily against the government. 13 Furthermore, Spaulding failed to produce any evidence that the delay impaired his defense. In the absence of any evidence showing actual prejudice, the district court correctly concluded that Spaulding’s speedy trial right was not violated and denied his motion to dismiss the indictment. Finding no error, we AFFIRM Spaulding’s convictions. AFFIRMED. 14

01-03-2023

10-14-2015

https://www.courtlistener.com/api/rest/v3/opinions/2986802/

Dismissed and Memorandum Opinion filed May 23, 2013. In The Fourteenth Court of Appeals NO. 14-13-00402-CR NO. 14-13-00403-CR CHARLES RAY ANDRUS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 228th District Court Harris County, Texas Trial Court Cause No. 981453 and 982427 MEMORANDUM OPINION Appellant entered a plea of guilty to the offenses of burglary of a habitation with intent to commit theft and robbery. In each case, in accordance with the terms of a plea bargain agreement with the State, the trial court sentenced appellant on July 23, 2004, to confinement for thirty-five years in the Institutional Division of the Texas Department of Criminal Justice. The sentences were ordered to run concurrently. No timely motion for new trial was filed in either case. In each case, appellant’s notice of appeal was not filed until May 1, 2013. A defendant’s notice of appeal must be filed within thirty days after sentence is imposed when the defendant has not filed a motion for new trial. See Tex. R. App. P. 26.2(a)(1). A notice of appeal which complies with the requirements of Rule 26 is essential to vest the court of appeals with jurisdiction. Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998). If an appeal is not timely perfected, a court of appeals does not obtain jurisdiction to address the merits of the appeal. Under those circumstances it can take no action other than to dismiss the appeal. Id. Accordingly, the appeals are ordered dismissed. PER CURIAM Panel consists of Chief Justice Hedges and Justices Boyce and Donovan. Do Not Publish — Tex. R. App. P. 47.2(b). 2

01-03-2023

09-23-2015

https://www.courtlistener.com/api/rest/v3/opinions/3448871/

Reversing. In an action to recover damages for personal injuries suffered when he was struck by a taxicab owned by the Louisville Taxicab Transfer Company, the plaintiff, Patrick J. Byrnes, was awarded $3,000 by the jury, and, from the judgment rendered on the verdict, the defendant has appealed. The chief complaints are of the instructions. The appellee was struck by one of appellant's taxicabs when he was crossing from the east to the west side of Eighteenth street or Dixie Highway in Louisville, Kentucky. The accident happened about 7:30 p. m., September 11, 1942. The appellee testified that he was crossing Dixie Highway at its intersection with St. Louis avenue when he was struck, but all other witnesses, including his own, placed him near the center of Dixie Highway about 100 feet south of the intersection. Most of them stated that he stepped off the curb on the east side of Dixie Highway in front of the third house from the intersection, and was walking diagonally across the street toward the southwest corner of St. Louis avenue and Dixie Highway where his wife was standing when he was struck. Appellee fixed the speed of the taxicab at 45 miles an hour, although he admitted it was almost against him when he first saw it. No other witness fixed the rate of speed at more than 25 miles an hour, and the driver of the taxi stated to a policeman immediately after the accident that he was traveling at a speed of about 25 miles an hour when he first saw appellee crossing the street about 20 feet in front of his cab. He immediately applied the brakes and turned his cab to the left in an effort to avoid striking appellee, but the right front fender and bumper struck him. The cab stopped within two or three feet after striking appellee, with the front wheels across the center line of the street. The court instructed the jury that it was the duty of the driver of the taxicab to drive at a speed no greater than 25 miles an hour unless they believed from the *Page 562 evidence that a speed greater than 25 miles an hour was not unreasonable or improper driving considering the traffic conditions and use of the highway at the time and place of the accident. Appellant insists that the instruction is erroneous since there was no competent evidence of probative value that the taxicab was traveling at a speed greater than 25 miles an hour. Appellee testified without objection that the taxicab was traveling at a speed of about 45 miles an hour. It is true that his opportunity for observing and estimating the rate of speed was slight, but he was entitled to have his testimony considered by the jury for whatever it was worth. White v. Saunders, 289 Ky. 268, 158 S.W.2d 393. Coupled with the admission of the driver of the taxicab immediately after the accident that he was traveling at a speed of 25 miles an hour, we think this evidence was sufficient to authorize a submission of the question of speed to the jury. KRS 189.570 and an ordinance of the City of Louisville provide that a pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway. The appellant requested the court to instruct the jury that it was the appellee's duty to yield the right of way to the taxicab. The court refused to so instruct the jury, but, in the instruction on contributory negligence, told them that if they believed from the evidence that appellee "crossed Eighteenth Street at a place other than the regularly designated crosswalk for pedestrians, then it was his further duty to exercise such increased care for his own safety commensurate with the increased danger, if any, involved in crossing said street at said place." In addition to the duties of appellee enumerated in the instruction on contributory negligence, the court should have told the jury that it was his duty when crossing the roadway at a point other than the regularly designated crosswalk for pedestrians to keep a lookout for approaching cars, and if he saw, or by the exercise of ordinary care could have seen, appellant's car approaching not to attempt to pass in front of it if it was so near to him that the driver could not, by the exercise of ordinary care, avoid striking him. This is a specific duty imposed by statute, and an instruction on it should be given when authorized by the evidence and an instruction is requested. In Ramsey v. Sharpley, *Page 563 294 Ky. 286, 171 S.W.2d 427, it was argued that the instruction on contributory negligence was erroneous because it failed to charge the jury that a pedestrian crossing between intersections and without the limits of a crosswalk should yield the right of way to a motor vehicle traveling upon the highway. The contention was disallowed because the defendant in that case did not offer an instruction on the duty of the plaintiff to yield the right of way. Here, such an instruction was offered and while it probably was not correct in the form offered, yet it was the duty of the court to give a correct instruction on the subject. The appellant also complains because the court, in its instruction on the measure of damages, authorized the jury to award damages for any permanent impairment of appellee's power to earn money, it being argued that the evidence failed to show his injuries are permanent. The appellee suffered a simple fracture of the pelvic bone without any displacement, and a few days after the accident it was discovered that he had a hernia. There was proof that the hernia was caused by the accident. There was no proof that the injury to the pelvic bone would result in any permanent impairment of appellee's power to earn money. All of the medical testimony was to the contrary. There was some conflict in the evidence as to the extent of the hernia, but Dr. Thomas J. Lynch, appellee's physician, testified that it was fully developed and that it will incapacitate the appellant until it is reduced or corrected by an operation. In other words, the appellee's power to earn money has been permanently impaired by reason of the hernia unless an operation is performed to reduce the hernia and the operation is successful. One injured through the negligence of another must use ordinary diligence to effect a cure and thus to minimize the damages, but he is not required to submit to an operation or suffer his damages to be reduced where an operation would be serious and critical and likely to be attended with some risk and possible failure. He is bound to submit to an operation only when a reasonably prudent man, under the circumstances, would do so. Billroy's Comedians v. Sweeny, 238 Ky. 277, 37 S.W.2d 43; Fremd v. Gividen,233 Ky. 38, 24 S.W.2d 915; Stewart Dry Goods Co. v. Boone,180 Ky. 199, 202 S.W. 489; Louisville N. R. Co. v. Kerrick,178 Ky. 486, 199 S.W. 44; 15 Am. Jur., Damages, sec. 39; Annotation in *Page 564 11 A.L.R. 230. The appellant failed to introduce any evidence as to the nature and seriousness of an operation required to reduce appellee's hernia, the probability of its success, or whether, under the circumstances, a reasonably prudent man would submit to it. Such evidence, if it had been introduced, would not have deprived appellee of his right to an instruction on the permanent impairment of his power to earn money, but, at most, might have authorized a qualification of the instruction on the measure of damages in accordance with the foregoing rule. It is claimed that the verdict is excessive, but, since the proof may be different on another trial, we refrain from passing on that question. The judgment is reversed, with directions to grant appellant a new trial.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3448873/

Reversing. On July 12, 1919, W.E. Gambill and A.L. Gambill, who owned two tracts of land in Breathitt county, executed a coal-mining lease thereon to the Gambill Coal Company, a copartnership. The lease, which was to run for 25 years, provided for a royalty of 15 cents per ton for all coal mined during the World War, and 10 cents per ton for coal thereafter mined. It further provided for a minimum royalty of not less than $100 per month, with the stipulation that, if in any month the royalty on the coal mined did not amount to $100, the deficiency might *Page 554 be made up by royalties in excess of the minimum in any succeeding month of the same year. There was the further agreement that the minimum royalty should be paid in all cases except where the lessees were prevented from mining "by floods, explosions and other unavoidable accidents or casualties" beyond their control, and that in the event operations ceased from any such causes they should notify promptly the lessors, and that no claim for any abatement of royalty could be made or allowed unless prompt written notice was given. The lease was sold and assigned to Ellison and Slusher, trustees, and at the same time the lessors entered into a supplemental contract with Ellison and Slusher. After referring to the original lease and its sale and transfer, the contract recited that "parties of the first part hereby agree to and make the following alterations and changes in said lease." Among the provisions of the contract are the following: "First. The said parties of the first part hereby agree with the parties of the second part, that if at any time during the life of this lease or any renewal thereof, second party desires to remove any coal from adjacent or adjoining lands, through or over the land embraced in the original lease the second party may do so by paying one (1c) cent per ton to the lessor, William E. Gambill, his heirs or assigns, and in the event of any removal of any coal as above described, the second party agrees to render a monthly statement and to pay same as payments made under the original lease. "Second. It is also agreed by the parties of the first part that the lease herein referred to shall be for the term of thirty (30) years from and after the date thereof, instead of for the period of Twenty-five (25) years as set out in said lease. "Third. It is agreed that on the termination of this lease or any extension granted thereof that the said parties of the second part may remove from the leased premises all of the personal property, fixtures and appurtenances that have been placed thereon by them, provided that on said termination they have complied with all of the terms of this lease, and have paid the parties of the first part all sums of money due them under this lease, but they are not to remove any buildings erected on said leased premises." *Page 555 On March 2, 1921, Ellison and Slusher conveyed all their rights to the Ellser Coal Company, which assumed all of their liabilities under the lease. The Ellser Coal Company paid the Gambills a large sum of money for the lease contracts and also spent a large sum of money in the equipment of the mine. On one of the tracts the coal was not of sufficient thickness and quality to justify mining operations. All the coal of sufficient thickness and quality to be mined, with the exception of the pillars and ribs, was removed from the other tract by January 1, 1924. On August 6, 1924, written notice was given the lessors that, owing to a breakdown in the machinery in the power house, and other casualties beyond its control, it was prevented from operating the mines, and that no minimum royalty would accrue for the month of August, or any subsequent month, until the machinery was repaired and other casualties overcome. Thereafter the lessee continued to pay the minimum royalty up to and including October, 1924. Later on a controversy arose between the lessors and the coal company with respect to the payment of minimum royalties. On January 8, 1925, the lessee wrote the lessors that the coal had been exhausted and that the lessee was no longer liable for the minimum royalties. Not being able to reach an amicable settlement of the matter, the lessors brought this action on April 9, 1925, against the lessee for a construction of leases and a declaration of their rights and liabilities thereunder. The lessee joined issue on certain allegations of the petition, asked a cancellation of the leases, and asserted a counterclaim for (1) minimum royalties, (2) damages for failure to get possession of the premises, (3) $3,000, the amount of insurance collected by the lessee on the commissary building, which was destroyed by fire. On final hearing the court canceled the leases, gave the lessee 90 days within which to remove its property from the mines, and dismissed the counterclaim. The lessors appeal. Appellants insist that the court erred in rejecting their counterclaim for minimum royalties during the time that appellee retained possession of the leased premises and used them for hauling coal from adjoining land. On the other hand, appellee contends that, when the coal was exhausted the right of the lessors to minimum royalties ceased, and was not affected by the fact that appellee retained possession under the supplemental contract of *Page 556 1920. In support of this position appellee relies on Auxier Coal Co. v. Big Sandy M. C. Coal Co., 194 Ky. 14,238 S.W. 189, and argues that the supplemental contract related to a new and independent subject-matter, and conferred an additional right separate and distinct from the original lease. It is true that it was held in the case of Auxier Coal Co. v. Big Sandy M. C. Coal Co., supra, that, under a mining lease like the one in question, the exhaustion of the coal terminated the lease and avoided the further payment of minimum royalties, but in that case the court did not have before it the liability of the lessee in case he retained possession of the premises for some purpose under the lease. The rule on the subject seems to be that, even where the coal is exhausted, the lessee is not released from liability for the fixed rental or royalty based on minimum production if he retains possession of the premises for some purpose under the lease (40 C. J. 1035; Virginia Iron, etc., Co. v. Graham, 124 Va. 692, 98 S.E. 659; New York Coal Co. v. New Pittsburg Coal Co., 86 Ohio St. 140, 99 N.E. 198), although the purpose for which it is retained is not a mining purpose (Lennox v. Vandalia Coal Co., 158 Mo. 473,59 S.W. 242). In the last-mentioned case the question was very similar to the one here involved. There the lease required the lessee to mine coal at a stated royalty, and provided for a minimum production and a minimum rental on that basis. It further provided that the term should end when the workable coal was exhausted, but gave the lessee the right to use the shaft on the demised premises for the purpose of hoisting coal mined from other lands. After the exhaustion of the coal the lessee remained in possession of the premises and continued to use the shaft for hoisting coal from other lands. It was held that the lessee could not escape the payment of the minimum rental on the ground of exhaustion of the coal so long as he retained possession of the demised premises for any purpose under the lease, including the hoisting of coal from other lands. It must not be overlooked that in that case the right to hoist coal from adjoining lands was given in the original lease, and the only consideration therefor was the mimimum royalty, *Page 557 while in this case the new right was conferred by supplemental contract and there was an additional charge therefor. In view of the additional charge for the additional privilege we hardly think it fair to make the minimum royalty the basis of recovery during the time that the lessee used the premises for hauling coal from adjoining lands. However, it was never contemplated that the right to haul coal from other lands should continue after the original lease terminated. That right was not separate from or independent of the original lease. On the contrary, it was an inseparable incident of that lease and was to continue only "during the life of this lease or any renewal thereof." Though the original lease was to last for 25 years, and by the supplemental contract the time was extended to 30 years, the right to mine coal from adjoining lands did not continue for that length of time unless the original lease was still in force. Notwithstanding the period fixed in the contract the exhaustion of the coal terminated the lease from and after the notice of January 8, 1925. Its life was then ended, and with it the right to haul coal from adjoining land. Nothwithstanding this fact appellee thereafter retained possession, not only of the commissary and other buildings, but of the mine itself for the purpose of transporting coal from the adjoining property. In the circumstances we conclude that appellee should pay something more than one cent per ton on the coal so hauled, and the additional compensation should be the fair and reasonable value of the use and occupation of the leased premises during the time that appellee after January 8, 1925, continued to haul coal from adjoining lands through the premises. Moreover, it must not be overlooked that, though the lease was terminable on notice for unavoidable accidents or casualties preventing the lessees from mining, the lease distinctly provided that there should be no abatement of royalties, unless prompt written notice was given. As the last payment of royalties was made in October, 1924, and the written notice was not given until January 8, 1925, appellant is also entitled to recover the minimum royalties accruing between those two dates. On a return of the case the court will hear evidence on the value of the use and occupation of the leased premises for the time above indicated, and render judgment in favor of appellants for that amount, together with the unpaid minimum royalties up to January 8, 1925. Judgment reversed, and cause remanded for proceedings consistent with this opinion. Whole court sitting. *Page 558

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/4538763/

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1259-18T4 STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROBERTO BURGOS, Defendant-Appellant. ________________________ Submitted May 13, 2020 – Decided June 4, 2020 Before Judges Fuentes and Mayer. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 14-09-1449. Joseph E. Krakora, Public Defender, attorney for appellant (Howard E. Drucks, Designated Counsel, on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Ednin D. Martinez, Assistant Prosecutor, on the brief). PER CURIAM Defendant Roberto Burgos appeals from an August 30, 2018 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm. On September 10, 2014, defendant was indicted by a Hudson County grand jury on the following charges: third-degree possession of controlled dangerous substances (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree distributing or dispensing CDS, N.J.S.A. 2C:35-5(a)(1), (b)(3) (count two); third-degree distributing or dispensing CDS in a school zone, N.J.S.A. 2C:35-7 (count three); and second-degree distributing or dispensing CDS within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count four). We briefly summarize the facts. A Jersey City police officer was on routine surveillance for suspected drug activity. The officer observed certain activities that, based on the officer's training and experience, caused the officer to believe defendant was selling drugs. The officer saw a minivan pull directly in front of his car, providing the officer with an unobstructed view. The officer then saw defendant place a plastic bag containing white powder on the front passenger seat of the minivan. The driver of the minivan, co-defendant Paola Greenwood, gave money to defendant. Suspecting the bag contained cocaine, the officer arrested defendant. A-1259-18T4 2 Prior to trial, defendant moved to suppress the drug evidence and the judge held an evidentiary hearing. In a March 18, 2015 order and accompanying written decision, the judge denied the suppression motion. The jury trial began on May 26, 2015, and defendant was found guilty on all counts. The trial judge merged counts one, two, and three with count four, and sentenced defendant to a term of eight years, with four years of parole ineligibility. Defendant appealed his conviction and sentence. This court affirmed the conviction and sentence on direct appeal. State v. Burgos, No. A-0740-15 (App. Div. June 8, 2017). The Supreme Court denied defendant's petition for certification. State v. Burgos, 231 N.J. 315 (2017). Defendant filed a PCR petition on March 14, 2018, and an amended PCR petition on May 31, 2018, alleging ineffective assistance of counsel because: (1) trial counsel failed to obtain defendant's cellphone records; (2) trial counsel stipulated to the State's lab report confirming the substance sold by defendant was cocaine; (3) trial counsel failed to request the judge conduct a Sands/Brunson1 analysis before defendant elected not to testify at trial; and (4) appellate counsel "failed to appeal the trial court's denial of defendant's motion 1 State v. Sands, 76 N.J. 127 (1978); State v. Brunson, 132 N.J. 377 (1993). A-1259-18T4 3 to suppress evidence despite multiple inconsistencies in the arresting officer's testimony at the suppression hearing and at trial." The PCR judge heard argument on defendant's petition. In an August 30, 2018 order, the judge denied defendant's PCR petition and request for an evidentiary hearing. In her oral decision, the PCR judge concluded trial counsel was not ineffective in failing to obtain defendant's cellphone records. Defendant claimed his cellphone records should have been obtained to disprove that he spoke to co-defendant on the date of his arrest. However, the judge determined there was strong evidence against defendant and the cellphone records would not have led to a different outcome based on the testimony of the arr esting officer, who saw defendant on his cellphone prior to the arrest, and co- defendant, who testified she texted defendant about buying cocaine. In rejecting defendant's argument on this point, the judge explained trial counsel "does not need to pursue every investigative path that is suggested by their client if they do not believe the method will be productive or effective. Counsel . . . has the right to choose which strategic path they see fit for the [defendant]." The judge held trial counsel's failure to obtain defendant's cellphone records "did not affect the trial to such an extent that it was impossible to obtain a fair trial." A-1259-18T4 4 The PCR judge also rejected defendant's claim that his trial counsel was ineffective in stipulating to the State's lab report and failing to explain the import and consequences of that report. The report confirmed the substance sold by defendant to Greenwood was cocaine. The judge determined defendant's claimed failure to understand the lab report would be used as evidence against him at trial was nothing more than "a bald assertion." She concluded defendant was "quite naïve" to believe the State would not use the report, which identified the substance that established the primary evidence against defendant. In addition, the PCR judge determined trial counsel was not ineffective in failing to file a Sands/Brunson motion prior to defendant deciding whether he would testify. She found such a motion would not have aided defendant's decision whether to testify at trial because defendant's prior convictions could have been introduced at trial provided the trial judge sanitized the convictions to include "only the number, degree, and date of the defendant's prior similar convictions." Brunson, 132 N.J. at 394. The judge inferred trial counsel was familiar with the existing case law regarding the use of prior convictions at trial. Therefore, she concluded defense counsel exercised appropriate trial strategy by advising defendant not to testify at trial. If defendant testified, the State would have cross-examined him regarding the prior convictions and the PCR judge A-1259-18T4 5 noted such cross-examination would likely have been detrimental to defendant's case. Further, the PCR judge determined appellate counsel was not ineffective in failing to appeal the trial judge's ruling on the motion to suppress the drug evidence. The judge deemed the evidence against defendant was strong based on the testimony of the officer who witnessed the drug transaction. In addition, Greenwood, who purchased cocaine from defendant, testified against defendant at trial. Both witnesses were extensively cross-examined by defendant's trial attorney. The PCR judge concluded there was strong proof supporting admission of the drug evidence under the plain view doctrine and therefore any appeal regarding the denial of the suppression motion would have been meritless. On appeal, defendant raises the following arguments: POINT ONE THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST- CONVICTION RELIEF DESPITE THE INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL AS ESTABLISHED BY THE U.S. CONST. AMEND. VI AND BY THE N.J. CONST. ART. I, ¶10. (a) Legal Standards Governing Applications for Post- Conviction Relief. A-1259-18T4 6 (b) The PCR Court's Rulings. (c) The PCR Court Erred in Rejecting Defendant's Claim that Trial Counsel's Refusal to Subpoena Cell Phone Records Constituted Ineffective Assistance of Counsel. (d) The PCR Court Erred in Rejecting Defendant's Claim that Trial Counsel's Failure to File a Sands/Brunson Motion Constituted Ineffective Assistance of Counsel. (e) The PCR Court Erred in Rejecting Defendant's Claim that Trial Counsel's Failure to Properly Explain the Import and Consequence of the State Lab Report Constituted Ineffective Assistance of Counsel. (f) The PCR Court Erred in Rejecting Defendant's Claim that Appellate Counsel's Failure to Appeal the Suppression Court's Ruling Constituted Ineffective Assistance of Counsel. (g) The PCR Court Erred in Rejecting Defendant's Claim that the Errors of His Trial Counsel and His Appellate Counsel Cumulatively Constituted Ineffective Assistance of Counsel. POINT TWO THE COURT ERRED IN REFUSING TO GRANT DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING REGARDING DEFENDANT'S CLAIMS OF INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL. We review a claim of ineffective assistance of counsel under the two- prong test established by the United States Supreme Court in Strickland v. A-1259-18T4 7 Washington, 466 U.S. 668 (1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, defendant must demonstrate that defense counsel's performance was deficient. Strickland, 466 U.S. at 687. Second, defendant must show there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. The mere raising of a claim of ineffective assistance of counsel does not entitle the defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). An evidentiary hearing is necessary only if a petitioner presented sufficient facts to make out a prima facie claim of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 462 (1992); R. 3:22-10(b). Having reviewed the record, we are satisfied that defendant failed to make a prima facie showing of ineffective assistance of trial or appellate counsel under the Strickland/Fritz analysis. We first consider defendant's claim that appellate counsel should have appealed the denial of his motion to suppress the drug evidence. However, defendant failed to demonstrate that an appeal from the denial of his suppression motion would have been meritorious. Defendant baldly asserted that the seized A-1259-18T4 8 evidence was not in plain view of the arresting officer. However, the judge who handled the suppression motion and the PCR judge deemed the evidence admissible based on the arresting officer's knowledge and experience in illegal drug sales, and the officer's eyewitness account of the transaction. "Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most a few key issues." Jones v. Barnes, 463 U.S. 745, 751-52 (1983). Because the issues were vigorously litigated at a suppression hearing, appellate counsel's failure to appeal the trial judge's denial of the suppression motion was not ineffective assistance of counsel. Defendant also argues his trial counsel was ineffective because he failed to file a Sands/Brunson motion and never told defendant that his prior convictions might be used for impeachment purposes if defendant testified at trial. At the discretion of the trial judge, the State would have been permitted to introduce sanitized evidence of defendant's prior drug related convictions for impeachment purposes, subject to the exclusion of any convictions based on remoteness. Brunson, 132 N.J. at 391-92; Sands, 76 N.J. at 144-45. Trial counsel was aware defendant would have been subject to vigorous cross- examination based on his extensive prior history of criminal convictions and A-1259-18T4 9 therefore counsel made a strategic decision in advising against defendant testifying at trial. We agree with the PCR judge that a pre-trial application pursuant to Sands/Brunson would not have changed the outcome of the trial and trial counsel was not ineffective in failing to file such a motion. We next consider defendant's claim that trial counsel inadequately investigated his case and failed to subpoena his cellphone records on the day of his arrest. The officer testified he saw defendant talking on a cellphone prior to the observed drug transaction although the officer did not know who was on the other end of the telephone conversation. The officer was subject to extensive cross-examination at the suppression hearing and at trial, and defense counsel tested the officer's credibility and veracity. In addition, Greenwood testified that she texted defendant to buy cocaine. Defense counsel challenged Greenwood's testimony by way of cross-examination and elicited that the charges against her were downgraded in return for her trial testimony against defendant. Defendant presented no facts, supported by affidavits or certifications based upon personal knowledge, demonstrating presentation of his cellphone records would have changed the outcome of the trial. See Cummings, 321 N.J. Super. at 170. A-1259-18T4 10 We turn to defendant's claim that trial counsel was ineffective as a result of stipulating to the admission of the State's lab report. The lab report confirmed the substance defendant sold to Greenwood was cocaine. Defendant is not challenging the method by which the laboratory performed the test or any flaw in the actual testing. Rather, defendant argues he was unaware the evidence would be used against him at trial. Experienced trial attorneys often stipulate to the contents of an uncontested lab report as part of trial strategy. See State v. Marshall, 123 N.J. 1, 165 (1991) (holding trial strategy decisions by counsel made after an investigation of the law and facts are almost always unassailable). Defendant failed to explain how his counsel's stipulation to the State's lab report was deficient, particularly where there was no independent report suggesting the tested substance was not cocaine. We agree with the PCR judge that it would have been naïve of defendant to believe the State would not rely on the primary physical evidence against him as a result of his trial counsel stipulating to the findings in the lab report. See N.J.S.A. 2C:35-19, which "codifies the procedures under which a defendant may assert or waive objections to the admission of a laboratory certificate in a given case." State v. Simbara, 175 N.J. 37, 48 (2002). A-1259-18T4 11 We are satisfied the record fully supports a conclusion that defendant has failed to meet both prongs of the Strickland/Fritz test. The evidence against defendant was overwhelming. Defendant's claims regarding trial counsel and appellate counsel are nothing more than improper bald assertions that are insufficient to establish ineffective assistance of counsel. There is no merit to defendant's position that counsels' representation of his interests before the trial court or appellate court was substandard. Because defendant failed to make a prima facie showing of ineffective assistance of counsel, an evidentiary hearing was not warranted. Preciose, 129 N.J. at 462-63 (1992). Affirmed. A-1259-18T4 12

01-03-2023

06-04-2020

https://www.courtlistener.com/api/rest/v3/opinions/3063558/

[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 08-14611 APRIL 14, 2009 Non-Argument Calendar THOMAS K. KAHN CLERK ________________________ D. C. Docket No. 05-80021-CR-DTKH UNITED STATES OF AMERICA, Plaintiff-Appellee, versus DAVID AUSTIN, JR., Defendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida _________________________ (April 14, 2009) Before HULL, MARCUS and ANDERSON, Circuit Judges. PER CURIAM: David Austin, Jr., a federal prisoner proceeding pro se, appeals the district court’s denial of his pro se post-conviction motion challenging sentencing enhancements based on his status as an armed career criminal. After review, we vacate and remand. I. BACKGROUND In 2005, Austin pled guilty to being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g) and 924(e). Austin had six prior felony convictions, which included aggravated battery, aggravated assault, sale of a substance in lieu of cocaine and three convictions for carrying a concealed weapon. At sentencing, the district court imposed sentencing enhancements because Austin qualified as an armed career criminal, pursuant to U.S.S.G. § 4B1.4(a) and the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). The district court imposed the ACCA’s mandatory minimum sentence of 180 months’ imprisonment. Austin appealed his sentence to this Court. In his direct appeal, Austin argued that the district court erred in sentencing him as an armed career criminal because his prior convictions had not been alleged in the indictment or admitted in his guilty plea. This Court affirmed, concluding that, based on Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219 (1998), the district court was permitted to enhance his sentence based on uncharged prior convictions. See U.S. v. Austin, 202 F. App’x 445, 447 (11th Cir. 2006). 2 Two years later, on July 31, 2008, Austin filed the instant pro se motion in the district court, which he entitled “pro se nunc pro tunc motion based on defendant’s ‘actual innocence’ of the illegal sentence.” Austin’s motion argued that the district court had erred in sentencing him as an armed career criminal because (1) his prior convictions for carrying a concealed weapon no longer constitute “violent felonies” after this Court’s decision in United States v. Archer, 531 F.3d 1347 (11th Cir. 2008); (2) his conviction for sale of a substance in lieu of cocaine was not a “serious drug offense”; and (3) his aggravated assault conviction was not a “violent felony.” Austin asked the district court to construe his motion under the appropriate statute that would afford him relief. Two days later, on August 2, 2008,1 the district court denied Austin’s July 31, 2008 motion, stating: ENDORSED ORDER denying Defendant David Austin Jr.’s motion to reduce his sentence. Defendant contends that some of the prior convictions which were relied upon to categorize him as an armed career criminal are not violent felonies as that term has been defined in Bega[y] v. United States, 128 S. Ct. 1581 (2008), and United States v. Archer, ___ F.3d ___ (11th Cir. 2008). These decisions, however, are not retroactive. Thus, unless defendant raised these issues on direct appeal, the court is without authority to grant relief. 1 The district court ruled two days after Austin filed his pro se motion. If the government had been given time to respond, it appears the government would have alerted the district court of the need to give notice under Castro v. United States, 540 U.S. 375, 382-83, 124 S. Ct. 786, 792 (2003). 3 Austin filed this appeal. II. DISCUSSION Austin’s pro se motion did not identify the statute under which he was seeking relief and asked the district court to construe his motion under the appropriate statute. The district court denied Austin’s motion without identifying the statute under which it was analyzing Austin’s claims or some other source of its jurisdiction over Austin’s claims. On appeal, the government identifies two possible statutory bases for Austin’s pro se post-conviction motion: (1) 18 U.S.C. § 3582(c); or (2) 28 U.S.C. § 2255. The government argues that § 3582(c) does not authorize the district court to grant relief and that the district court could not construe Austin’s motion as a § 2255 motion because it did not give the notice and warnings required by Castro v. United States, 540 U.S. 375, 382-83, 124 S. Ct. 786, 792 (2003). A district court may properly recharacterize a pro se litigant’s motion as a § 2255 motion; however, before doing so, the district court must notify the prisoner of its intention to do so, inform the prisoner of the consequences of that recharacterization and provide the prisoner with an opportunity to withdraw or amend his motion. See Castro, 540 U.S. at 382-83, 124 S. Ct. at 792. Federal courts “have an obligation to look behind the label of a motion filed by a pro se 4 inmate and determine whether the motion is, in effect, cognizable under a different remedial statutory framework.” United States v. Jordan, 915 F.2d 622, 624-25 (11th Cir. 1990). Additionally, an appeal from a district court’s denial of a § 2255 motion is limited to the issues identified in a certificate of appealability (“COA”) issued by the district court or this Court. See Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S. Ct. 1029, 1039 (2003); 28 U.S.C. § 2253(c). Here, Austin filed a notice of appeal in the district court. If a pro se petitioner files a notice of appeal, the district court must treat it as an application for a COA and then either issue a COA or state why a COA should not issue. See Edwards v. United States, 114 F.3d 1083, 1084 (11th Cir. 1997); Fed. R. App. P. 22(b)(1). A district court is required to rule upon an application for a COA before we will consider a request for a COA. Edwards, 114 F.3d at 1084. It is undisputed that, in ruling on Austin’s pro se motion, the district court did not provide Austin with the Castro notice and warnings and did not issue a COA ruling in response to Austin’s notice of appeal. Because the district court did not explain the basis for its jurisdiction or the statute under which it was construing Austin’s pro se motion, we do not know whether the district court was construing Austin’s motion under § 2255 or had some other source of jurisdiction. We 5 therefore vacate the district court’s order and remand to the district court for further proceedings. On remand, the district court should either: (1) state its intention to construe Austin’s motion as a § 2255 motion, comply with the Castro requirements and construe any subsequent notice of appeal as an application for a COA; or (2) if it chooses not to proceed under § 2255, either explain the basis for its exercising of jurisdiction or indicate why jurisdiction is lacking. VACATED AND REMANDED. 6

01-03-2023

10-14-2015

https://www.courtlistener.com/api/rest/v3/opinions/128121/

538 U.S. 916 ST. HILAIREv.NEW HAMPSHIRE REAL ESTATE COMMISSION. No. 02-824. Supreme Court of United States. March 10, 2003. 1 Petition for rehearing denied. 537 U. S. 1113.

01-03-2023

04-28-2010

https://www.courtlistener.com/api/rest/v3/opinions/2403630/

658 F. Supp. 2d 831 (2009) BIG DIPPER ENTERTAINMENT, LLC. et al., Plaintiffs, v. CITY OF WARREN, Defendant. Case No. 07-14716. United States District Court, E.D. Michigan, Southern Division. September 17, 2009. *833 Jay A. Schwartz, Mary A. Mahoney, Susan L. Brown, Schwartz Law Firm, Farmington Hills, MI, for Plaintiffs. Raechel M. Badalamenti, Robert S. Huth, Jr., Kirk and Huth, Clinton Township, MI, for Defendant. OPINION & ORDER SEAN F. COX, District Judge. This matter is currently before the Court on the parties' cross-motions for summary judgment. The parties have briefed the issues and the Court held a hearing on September 9, 2009. For the reasons set forth below, the Court shall grant summary judgment in favor of Defendant with respect to Plaintiffs' federal claims and the Court shall decline to exercise supplemental jurisdiction over Plaintiffs' remaining state law claims. BACKGROUND On November 2, 2007, Plaintiffs Big Dipper Entertainment, L.L.C. ("Big Dipper") and Aquarius Investments, L.L.C. ("Aquarius") (collectively "Plaintiffs") filed this action against Defendant City of Warren (the "City of Warren" or "Defendant"), *834 on the basis of federal question jurisdiction. Plaintiffs' Complaint asserts the following five counts: "42 U.S.C. § 1983" (Count I); "Unlawful Creation of the Downtown Development Authority and/or Creation or Expansion of the Downtown District" (Count II); "Vested Right to Operate an SOBS on the Subject Property" (Count III); "Right to Issuance of an Official Address and Local Approval of a Liquor License and Topless Activity Permit" (Count IV); and "Declaratory and Injunctive Relief Entitlement to Use of Subject Property as a Restaurant/Bar Offering Entertainment by Semi-Nude Performers." Count I, Plaintiffs' § 1983 claim, is the only federal claim in this action. The remaining claims are state law claims over which this Court may exercise supplemental jurisdiction. The matter is currently before the Court on the parties' respective summary judgment motions. Plaintiffs' Motion for Summary Judgment is brought with respect to Plaintiffs' federal claims only. The motion does not seek summary judgment with respect to any of the state law claims. In this motion, Plaintiffs ask the Court to grant summary judgment in their favor with respect to Count I and rule that: 1) the locational restrictions of the challenged ordinances are unconstitutional because they do not leave open adequate alternative avenues of expression; and 2) the SOB licensing ordinances, as applied by the City of Warren, are unconstitutional prior restraints on protected expression Defendant's Motion for summary judgment seeks summary judgment in its favor with respect to all claims asserted by Plaintiffs. This Court's practice guidelines for motions for summary judgment provide, in pertinent part, that: a. The moving party's papers shall include a separate document entitled Statement of Material Facts Not in Dispute. The statement shall list in separately numbered paragraphs concise statements of each undisputed material fact, supported by appropriate citations to the record . . . b. In response, the opposing party shall file a separate document entitled Counter-Statement of Disputed Facts. The counter-statement shall list in separately numbered paragraphs following the order or the movant's statement, whether each of the facts asserted by the moving party is admitted or denied and shall also be supported by appropriate citations to the record. The Counter-Statement shall also include, in a separate section, a list of each issue of material fact as to which it is contended there is a genuine issue for trial. c. All material facts as set forth in the Statement of Material Facts Not in Dispute shall be deemed admitted unless controverted in the Counter-Statement of Disputed Facts. Both parties complied with the Court's practice guidelines such that: 1) the parties submitted a Joint Statement of Undisputed Material Facts (Docket Entry No. 62) ("Joint Stmt."); 2) Defendant filed its statement of material facts, which Plaintiffs responded to in writing; and 3) Plaintiffs filed their statement of material facts, which Defendants responded to in writing. The following material facts are gleaned from the parties' statements and the evidence submitted by the parties. 1. Prior Challenges To Warren's Ordinances: For several years, the City of Warren has had in place a series of ordinances that relate to sexually oriented businesses ("SOBs"). These ordinances have been *835 challenged in at least two prior actions in this district. See 15192 Thirteen Mile Road, Inc. v. City of Warren, 626 F. Supp. 803 (E.D.Mich.1985); Warren Gifts, LLC v. City of Warren, Case No. 02-70062. In 15192 Thirteen Mile Road, Inc., the plaintiffs filed suit under § 1983 challenging the constitutionality of Warren Zoning Ordinance 14.02(C), which regulated the ability of adult businesses to locate within the City of Warren. At that time, Ordinance 14.02(C) "require[d]: 1) that adult businesses be located on a major thoroughfare, as designated in the Master Thoroughfare Plan; 2) that the proposal site be no closer than 500 feet to the property line of an area zoned residential or an existing residential use; and 3) that the proposed site be no closer than 1000 feet to the property line of another adult business, or to the property line of any church or school." Id. at 808-09. The City of Warren's ordinance was declared partly constitutional and party unconstitutional in 15192 Thirteen Mile Road, Inc. Specifically, the court struck down the provision prohibiting SOBs from locating on major thoroughfares as unconstitutional. The other locational restrictions, however, were found constitutional. In finding those restrictions constitutional, the court concluded the ordinance was aimed at controlling secondary effects of adult businesses and that the ordinances left adequate avenues of expression available. 2. The Challenged Ordinances Here: In this case, Plaintiffs make two separate constitutional challenges. First, Plaintiffs claim that the locational restrictions of Section 14.01, prohibiting SOBs from locating in either "the Downtown District" or "within the Downtown Development District," are unconstitutional and violate the First Amendment because they do not leave open adequate alternative avenues of expression. Second, they claim that the SOB licensing ordinances, as applied by the City of Warren to Plaintiffs, are unconstitutional prior restraints on protected expression. a. The Locational Restrictions Of Section 14.02(C) Prohibiting SOBs From Locating In Either "The Downtown District" Or "Within The Downtown Development District:" The minutes of a Warren City Council meeting held on October 11, 2005 reflect that the City Council discussed amending the ordinances for SOBs and include that: Scott D. Bergthold stated that this would be a short supplement to the extensive discussion of June 10, 2005, in which amendments that would strengthen the Constitutionality of the code were discussed. There was previously a presentation before City Council on the extensive secondary effects data it received several months ago. Tonight, he would add affidavits from the police department and accompanying Michigan State Police department report outlining illicit sexual activity that has occurred in sexually oriented businesses. That was further evidence of the negative secondary effectives of adult uses. The language of the ordinance has been updated and strengthened. And it took into account recent cases such as those decided since June 10th of this year the 6th Circuit Court of Appeals, upon which the City of Warren relied in adopting this ordinance, including Cincinnati v. Union Township, which was decided by the full Court on June 21, 2005. More recent cases were also included. . . . . Mr. Bergthold stated that the questions showed that the colloquy, discussions, and the extensive review of secondary effects information reinforced the fact that City Council was intent on doing what was Constitutionally permissible *836 and sound and also effective to address the negative secondary effects of adult businesses. Councilwoman Moore stated that this Ordinance was a long time coming, and a great deal of hard work had gone into it. Chairman Fouts stated that based on the expert witness and the City Attorney's Office, he would vote in favor of this. Council woman Kamp and Councilwoman Moceri stated that they were in agreement with regard to the suggested amendments and they would be part of the motion. (Ex. 2 to Def.'s Br.) A motion was then made to adopt the ordinance with the suggested amendments, and the motion carried unanimously. (Id.). Thus, "[o]n October 11, 2005, Warren amended the location criteria for SOBs by enacting Ordinance 30-961, Section 14.01(s), which provides: The site for the SOB business must be located more than 750 feet from the nearest lot line any of the following zoning districts: R-1-A, R-1-B, R-1-C, R-1-P, R-2, R-3, R-3-A, R-4, R-5, any mixed residential zone such as Planned Unit Development or the Downtown District. Defendant's Response Brief Exhibit I; See also Defendant's Motion for Summary Judgment Exhibits 2 and 3. (Joint Stmt. ¶ 8) (emphasis in original). "On February 1, 2006, Warren published a Public Notice of its intention to make additional amendments to Section 14.01(s), specifically giving notice of the intent to add `a new provision which prohibits the location of sexually oriented businesses within the boundaries of the Warren Downtown Development Authority.' Plaintiffs' Motion for Summary Judgment Exhibit 73, p. 6 (35A of the Warren Weekly Edition)." (Joint Stmt. ¶ 12). "On February 14, 2006, City Council passed a Moratorium on the issuance of any SOB licenses in any area included within the `Downtown District.' Plaintiffs' Motion for Summary Judgment Exhibit 21 and 23, 25 (Vogt. dep.) p. 14-16, 28-30." (Joint Stmt. ¶ 17). "On March 14, 2006, Council discussed the proposed amendments to the zoning ordinances as reflected in the minutes of the Council meeting. Defendant's Response Brief Exhibit H." (Joint Stmt. ¶ 20). "On March 28, 2006, Warren enacted amended Section 14.01(s), codified as Ordinance 30-964, and Article 21B a/k/a the Urban Design Manual to exclude and/or limit certain uses, including, but not limited to, SOBs. Defendants's Motion for Summary Judgment Exhibits 5, 10 (Article 21B.17) and Exhibit 11." (Joint Stmt. ¶ 22). "Section 14.01(s), as amended March 28, 2006, provides: To be consistent with the objective and stated purpose of the Downtown Development Authority Ordinance, Sec. 2-108 et seq., sexually oriented businesses as defined in Chapter 6 of the Code of Ordinances shall be prohibited from locating within the Downtown Development District boundaries as described by Chapter 2 of the Code of Ordinances. Defendant's Motion for Summary Judgment Exhibit 11. (Joint Stmt. ¶ 23) (emphasis added). b. The SOB Licensing Ordinances: Ordinance Section 6.276 et seq. was enacted on October 11, 2005 "providing a revised licensing process for SOBs. Defendant's Motion for Summary Judgment Exhibit 4." (Joint Stmt. ¶ 8). Section 6-284(c) "specifically requires the SOB License applicant to appear in person before the City Clerk and submit a completed application `on a form provided *837 by the City Clerk.'" (Joint Stmt. ¶ 16). It also requires applications to be notarized. (Def.'s Exhibit 4 at 1). "Section 6-299 requires the Clerk to either grant the license or issue a letter of intent to deny the application within 20 days of its filing." (Joint Stmt. ¶ 18). Section 6-285(a) provides that a temporary license shall be issued to an applicant "upon the filing of a completed application," valid until a decision of the City to grant or deny a license has been made, which is to occur within 20 days of application. Section 6-299(b) states that a provisional license shall be issued to any business initiating court action to challenge a license denial, suspension, or revocation. In addition, The City's ordinances provide for prompt review of a revoked license. (See Sec. 6-299, in Def.'s Exhibit 4). On February 14, 2006, Tim Sosnovske hand delivered an application for a SOB license to the City Clerk's office in Warren. (Joint Stmt. ¶ 14). That application was not notarized at that time. (Id.). On March 8, 2006, the Clerk sent a letter to Sosnovske rejecting the SOB License Application. (Joint Stmt. ¶ 19). ANALYSIS Because subject matter jurisdiction over this action is based solely on Plaintiffs' § 1983 claim, the Court will address that claim first because if it is dismissed, the Court must consider whether it should exercise supplemental jurisdiction over Plaintiffs' remaining state law claims. I. Plaintiffs' Federal Claims: Plaintiffs' federal claims, asserted under § 1983, consist of the following two claims: 1) the locational restrictions of Section 14.01, prohibiting SOBs from locating in either "the Downtown District" or "within the Downtown Development District," are unconstitutional and violate the First Amendment because they do not leave adequate alternative avenues of expression available; and 2) the SOB licensing ordinances, as applied by the City of Warren to Plaintiffs, are unconstitutional prior restraints on protected expression and therefore violate the First Amendment. A. Are The Challenged Ordinances Unconstitutional Because They Do No Leave Adequate Avenues of Expression Available? The parties agree that, "an ordinance that imposes geographic restrictions on sexually oriented businesses is constitutional if: (1) the restrictions are aimed at secondary effects of such businesses rather than the content of the expression occurring there, (2) the restrictions are narrowly tailored to serve a substantial government interest, and (3) alternative channels of expression remain available." Bronco's Entertainment, Ltd. v. Charter Tp. of Van Buren, 421 F.3d 440, 451 (6th Cir.2005) (citing City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S. Ct. 925, 89 L. Ed. 2d 29 (1986)). The City of Warren contends that it is entitled to summary judgment because the evidence establishes that it has met the above test. Plaintiffs, on the other hand, contend that they are entitled to summary judgment because the locational restrictions of the City's 2006 Ordinance do not leave adequate alternative avenues of expression available and are therefore unconstitutional. "It is now recognized that governments have a substantial interest in controlling adverse secondary effects of sexually oriented establishments, which include violent, sexual, and property crimes as well as blight and negative effects on property values." Richland Bookmart, Inc. v. Knox County, Tennessee, 555 F.3d 512, *838 524 (6th Cir.2009); see also Bronco's Entertainment, Ltd., 421 F.3d at 451 ("The importance of the township's interest in combating the secondary effects of sexually oriented businesses is `not debatable.'") The City contends that it adopted the challenged ordinance to combat the secondary effects of sexually oriented businesses: In this case, Warren enacted the subject Ordinances after presentation by outside counsel Scott Bergthold, City Attorney George Constance, Assistant City Attorney Annette-Gattari-Ross, the Warren Police Chief, and others, on the negative secondary effects of SOBs. Exhibits 2, 3, 4,5, (Expert Report of Dr. McCleary), 9, 10 and 11. Warren relied on 49 studies and reports discussing negative secondary effects of SOBs that had been produced over a span of three decades. See Exhibits 2, 5 and 9. The secondary effects studies relied upon by Warren were conducted in jurisdictions with populations ranging from several hundred to several million. See Exhibit 5, p. 8-9. The studies relied on by Warren were conducted in the west, southwest, mountain west, midwest, northeast, southeast, and plains regions. Dr. Richard McCleary points out that despite the demographic diversity, all the studies reviewed arrived at the consensus finding that SOBs have large, significant negative secondary effects. See Exhibit 5, p. 8-9. Dr. McCleary further recognizes that these are the same reports that have been relied on by legislatures across the country over the last two decades. See Exhibit 5, p. 9. Dr. McCleary also notes that the Ordinances enacted by Warren are nearly identical to those in other jurisdictions where the studies were completed or relied on— each of which concluded that there is a strong expectation that such ordinances will mitigate crime-related secondary effects from SOBs. See Exhibit 5, p. 8 and Appx II-H. (Def.'s Br. at 9). Defendant notes that in Warren Gifts, LLC v. City of Warren, 02-CV-70062, a similar constitutional challenge was made to Section 14.01(s) and was rejected by the Honorable Robert Cleland. At the time of that case, "Section 14.01(s) contained substantially the same regulations on SOBs in 2002 as exist today, except that the exclusion of SOBs in the Downtown District was first included in October 11, 2005." (Def.'s Resp. Br. at 4-5). Judge Cleland concluded that: L. The Warren Zoning Ordinance is not aimed at prohibiting offensive speech, but at combating the "undesirable secondary effects of such businesses." M. The Warren Zoning Ordinance is designed to serve a substantial government interest. There is an obvious relationship between a business and the adjacent properties, which the Warren Zoning Ordinance was designed to address. N. The property at 32778 Van Dyke Avenue abuts a residential district. The Warren Zoning Ordinance is designed to combat the negative effects that adult businesses would have on such areas. (Warren Gifts, LLC v. City of Warren, at 5-6). Exhibit 2 to Defendant's Motion consists of Warren City Council Meeting Minutes for a meeting held on October 11, 2005. The minutes for that meeting reflect that the City Council discussed amending the ordinances for SOBs and include that: Scott D. Bergthold stated that this would be a short supplement to the extensive discussion of June 10, 2005, in which amendments that would strengthen *839 the Constitutionality of the code were discussed. There was previously a presentation before City Council on the extensive secondary effects data it received several months ago. Tonight, he would add affidavits from the police department and accompanying Michigan State Police department report outlining illicit sexual activity that has occurred in sexually oriented businesses. That was further evidence of the negative secondary effectives of adult uses. The language of the ordinance has been updated and strengthened. And it took into account recent cases such as those decided since June 10th of this year the 6th Circuit Court of Appeals, upon which the City of Warren relied in adopting this ordinance, including Cincinnati v. Union Township, which was decided by the full Court on June 21, 2005. More recent cases were also included. . . . . Mr. Bergthold stated that the questions showed that the colloquy, discussions, and the extensive review of secondary effects information reinforced the fact that City Council was intent on doing what was Constitutionally permissible and sound and also effective to address the negative secondary effects of adult businesses. Councilwoman Moore stated that this Ordinance was a long time coming, and a great deal of hard work had gone into it. Chairman Fouts stated that based on the expert witness and the City Attorney's Office, he would vote in favor of this. Council woman Kamp and Councilwoman Moceri stated that they were in agreement with regard to the suggested amendments and they would be part of the motion. (Ex. 2 to Def.'s Br.) A motion was then made to adopt the ordinance with the suggested amendments, and the motion carried unanimously. (Id.). Exhibit 8 to Defendant's motion is the "Resolution to Adopt Moratorium Prohibiting The Location Of Any Sexually Oriented Business Within The Downtown Development District And The Van Dyke TIFA Authority District Boundaries," which states, in pertinent part: The City of Warren has adopted an ordinance regulating sexually oriented businesses in order to promote the health, safety and general welfare of the citizens of the City as set forth in Chapter 6 of the Warren Code of Ordinances; and has adopted locational criteria for sexually oriented businesses in the Zoning Ordinance, section 14.01. In addition, the City of Warren has authorized a Downtown District in Chapter 2 of the Code of Ordinances for the purpose of halting property value deterioration, eliminate the causes of deterioration; and promote development and economic grown, among other states purposes. . . . . The City Council has requested that to support the mission statement of the T.I.F.A. to eliminate blight and create new development, that the Van Dyke TIFA Authority District be included in the proposed amendment to section 14.01(s) of the Zoning Ordinance . . . (Ex. 8 to Def.'s Motion) (emphasis added). Defendants have not submitted copies of the actual reports that were presented to the City Council. They state that the reports are "voluminous but were produced in discovery." (Def.'s Br. at 9 n. 7). Defendant's Expert Report states that the "factual predicate of the Warren Ordinance includes most of the studies cited below at II.E." and then lists 29 different *840 studies. (Ex. 5 to Def.'s Br. at 8 & 14-15). Defendant states that copies of the actual reports will be made available to the Court upon request. Plaintiffs do not dispute that these various secondary-effects reports, gathered by Mr. Bergthold, were presented to the City Council. Plaintiffs do appear to challenge, however, the City of Warren's reliance on those reports. (See Pls.' Resp. Br. at 13) (Asserting that "the City gave lip service to a series of outdated reports generated for pay on behalf of groups which sought to outlaw sexual expressions" and "As Plaintiffs' expert, Bruce McLaughlin, demonstrates in his Predicate Report, there is no actual reliable evidence that adult businesses present any special risk to any substantial interest."). To the extent that Plaintiffs challenge the reports on the ground that the reports are not new reports, or that the City of Warren did not prepare the reports itself, such challenges are without merit. Both the Supreme Court and the Sixth Circuit "have repeatedly held that local governments need not conduct their own studies demonstrating that adverse secondary effects result from the operation of sexually oriented businesses or that the measures chosen will ameliorate these effects." Richland Bookmart, Inc., 555 F.3d at 524; see also Bronco's Entertainment, Ltd., 421 F.3d at 451 ("A municipality is not required to `conduct new studies or produce evidence independent of that already generated by other cities to demonstrate the problem of secondary effects,'"). Simply stated, the "First Amendment does not require a city, before enacting such an ordinance, to conduct new studies or produce 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." Richland Bookmart, Inc., 555 F.3d at 524. "Nor are local governments required to demonstrate empirically that its proposed regulations will or are likely to successfully ameliorate adverse secondary effects." Id. "Thus, insofar as Plaintiffs merely dispute the relevance of `foreign' and outdated studies, they fail to create a genuine issue of material fact to survive summary judgment." Id. As explained in Richland Bookmart, Inc., however, "[t]his is not to say that, provided the now-standard list of studies and judicial opinions is recited, no plaintiff could ever successfully challenge the evidentiary basis for a secondary-effects regulation. Albeit light, the burden on the government is not non-existent, and a plaintiff may put forth sufficient evidence to further augment that burden." Id. at 524-25. A burden-shifting framework applies with respect to the evidentiary challenges in secondary-effects cases. See Richland Bookmart, Inc., supra, at 524-28. Plaintiffs' briefs do not discuss the burden-shifting framework outlined in Richland Bookmart, Inc., nor do they provide any analysis of how they believe it should be applied here. Thus, the Court does not believe that Plaintiffs are truly challenging the evidentiary basis of the reports the City of Warren relied upon. Moreover, even if they were making such a challenge, the Court does not believe that they would succeed in making such a challenge for the same reasons the challenge in Richland Bookmart, Inc. failed: It is unnecessary for us to go through every piece of evidence Plaintiffs offer in an attempt to cast doubt on the County's findings and rationale. While the County may rely on evidence from other locations and anecdotal evidence, Plaintiffs' burden is heavier and cannot be met with unsound inference or similarly anecdotal information. Giving Plaintiffs' *841 evidence the most charitable treatment, it suggests merely that the County `could have reached a different conclusion during its legislative process' with regard the need to regulate some categories of sexually oriented businesses. Richland Bookmart, Inc., 555 F.3d at 527. This Court further concludes that the challenged ordinances are narrowly tailored to serve a substantial interest. Again, the importance of the City of Warren's "interest in combating the secondary effects of sexually oriented businesses is `not debatable.'" Bronco's Entertainment, Ltd., 421 F.3d at 451 (quoting Wojcik v. City of Romulus, 257 F.3d 600, 614 (6th Cir.2001)). Moreover, the challenged ordinances apply only to SOBs—the category of establishments shown to produce the unwanted secondary effects. Like the plaintiffs in Bronco's Entertainment, Ltd., Plaintiffs appear to assert that the ordinances are not narrowly tailored because their geographic restrictions are more stringent than those that were applied to SOBs under the City of Warren's prior ordinances. That argument "misapprehends the nature of the `narrowly tailored' test in this context. A contentneutral regulation, such as the [ordinances challenged here,] need not be less restrictive than other possible regulations; it need only refrain from `burden[ing] substantially more speech than is necessary to further the government's legitimate interests.'" Bronco's Entertainment, Ltd., 421 F.3d at 451 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 799, 109 S. Ct. 2746, 105 L. Ed. 2d 661 (1989)). That test is met here given that the ordinances apply only to SOBs and, as explained below, preserve a sufficient number of channels for such expression. Under Renton, a zoning ordinance will be found to violate the First Amendment if it does not allow for "reasonable alternative avenues of communication." Renton, 475 U.S. at 50, 106 S. Ct. 925. The Sixth Circuit has noted that "the Supreme Court has made it clear that alternative sites need not be viable commercial properties." Bronco's Entertainment, Ltd., 421 F.3d at 452 (Citing Renton, supra) (emphasis added). In prior cases, parties attempting to show that sufficient alternative channels do not exist have attempted to discount "certain sites because the sites are occupied or because the current owners might be unwilling to sell to a sexually oriented business" but the Sixth Circuit has held that "[u]nder Renton, these factors are irrelevant." Id. The First Amendment does not require a government to ensure that an adult business will be able to obtain a site. Rather, the First Amendment "requires only that [the government] refrain from effectively denying respondents a reasonable opportunity to open and operate an adult [business] within the city." Renton, 475 U.S. at 54, 106 S. Ct. 925. The City of Warren contends that alternative channels of expression are left open. It states that "[i]n this case, there are 39 alternate sites throughout the various sections in Warren." (Def.'s Br. at 10). These 39 sites are identified in Exhibit 16 to Defendant's Brief. The City of Warren asserts that "the fact that some or all of the sites identified as potential alternate SOB locations are occupied by existing businesses, are not currently for sale or lease or are not "commercially viable" for an adult use does not give rise to a First Amendment violation. Renton, at 54 [106 S. Ct. 925]; American Mini Theatres, at 71 n. 35." (Id.). Even so, it notes that its expert, Alan C. Weinstein has opined that 25 of these 39 sites are actually viable and available for SOB use. Exhibit 15 to Defendant's Motion for Summary Judgment is the "Expert Report *842 of Alan C. Weinstein." His report includes a section titled, "Findings and Opinions Regarding Alternative Avenues of Communication" that states that the City of Warren has identified four areas as being potentially available for the location of SOBs and further describes those areas as: 2. Descriptions and Analyses of Individual Areas • Area 1—Portions of Section 6 in the Warren Zoning Atlas Description Approximately 14 individual sites zoned M-2, all but one improved with an existing structure, with these structures ranging from approximately 830 sq. ft. to over 33,000 sq. ft. One of the sites is too small for any commercial use. The 13 remaining sites could be used, or could be reconfigured to be used, as a Sexually Oriented Business. Analysis 13 sites are potentially available in Area 1. • Area 2—Portions of Section 24 in the Warren Zoning Atlas Description One site zoned C2 & M2 improved with a structure of 2,363 sq. ft. Analysis One site is potentially available in Area 2. • Area 3—Portions of Section 26 in the Warren Zoning Atlas Description Approximately 17 individual sites zoned M-2, all but one improved with an existing structure, with these structures ranging from approximately 832 sq. ft. to over 86,000 sq. ft. One of the sites is too small for any commercial use. The 16 remaining sites could be used, or could be reconfigured to be used, as a Sexually Oriented Business. Analysis At least 6 sites would be potentially available after sites were combined to achieve sufficient parking to meet zoning requirements. • Area 4—Portions of Section 28 in the Warren Zoning Atlas Description Approximately 7 individual sites zoned M-2, all but one improved with an existing structure, with these structures ranging from approximately 3,480 sq. ft. to over 65,000 sq. ft. These 7 sites could be used, or could be reconfigured to be used, as a Sexually Oriented Business. Analysis 7 sites are potentially available. (Ex. 15 to Def.'s Motion for Summ. J. at 3-4). The City asserts that its "alternate locations satisfy even the most recent approaches discussed in BBI Enters., Inc. v. City of Chicago, 874 F. Supp. 890, 896 (N.D.Ill.1995) wherein the court holds that the best measure of adequate alternative locations is evaluation of the relationship between the number of sites available in a city for adult uses and the size of the city's population. BBI notes that Centerfold Club, Inc. v. City of St. Petersburg, 969 F. Supp. 1288 (M.D.Fla.1997) recognizes that a proportion of one (1) site per 12,565 residents is inadequate. In this case, however, Warren's alternate sites equates to one (1) site per 3,544 residents according to census results. This is a ratio that is four (4) times greater than that in Centerfold Club." (Def.'s Br. at 10-11). The City also relies on Jott, Inc. v. Charter Township of Clinton, 224 Mich. App. 513, 569 N.W.2d 841 (1997) and Executive Arts Studio, Inc. v. City of Grand Rapids, 227 F. Supp. 2d 731 (W.D.Mich. 2002). *843 Plaintiffs, on the other hand, contend that the locational restrictions of the City's 2006 Ordinance do not leave adequate alternative avenues of expression available and are therefore unconstitutional. In responding to the City's motion, Plaintiffs note that according to the City's own calculations, "there exist, at most, 39 parcels of land" on which an SOB could theoretically operate. (Pls.' Resp. Br. at 15) (emphasis in original). Plaintiffs assert that those parcels "comprise only 46 out of 22,000 + acres in the City, or two tenths of a percent (.2%) of the total property in Warren and only .8% of the commercial and industrial zoned property in Warren." (Pls.' Resp. Br. at 15). Plaintiffs rely heavily on Executive Arts. They assert that the district court in that case "struck down the Grand Rapids ordinance because the .8% of commercial property and .06% of overall land in Grand Rapids available to adult bookstores failed to provide adequate alternative avenues." (Pls.'s Resp. Br. at 18). Plaintiffs assert that Executive Arts is "particularly suited for application herein as Grand Rapids is the second largest city in Michigan with approximately 28,000 acres and Warren is Michigan's third largest city with approximately 22,000 acres and similar proportionate populations." (Id.). Plaintiffs assert that the City of "Warren's ratios for SOBs are more meager than were Grand Rapids'," and on that ground alone, the City of Warren's "ordinance must be found to violate the First Amendment on its face for failing to consider or provide constitutionally required alternate avenues for protected expression." (Id.). Whether an ordinance leaves open adequate alternative channels of communication is an issue that must be decided based on the specific facts of each case. Christy v. City of Ann Arbor, 824 F.2d 489, 491 (6th Cir.1987). To date, the Sixth Circuit has not identified a minium number of sites, or percentage of acreage, that must be available to provide sufficient channels of communication. Moreover, while other circuits have set forth various criteria for determining whether a sufficient number of sites exist (see e.g., Boss Capital, Inc. v. City of Casselberry, 187 F.3d 1251, 1254 (11th Cir. 1999); Young v. City of Simi Valley, 216 F.3d 807 (9th Cir.2000)), the Sixth Circuit has not done so, nor has it formally[1] adopted the approaches of these other circuits. In Boss Capital, the Eleventh Circuit held that the following factors may be considered: 1) the size of the population; 2) geographical size; 3) the number of acres available to adult uses as a percentage of geographic size; 4) the location of the sites within the municipality; 5) the number of adult entertainment establishments currently in existence; and 6) the number of adult entertainment establishments wishing to operate within the municipality. Boss Capital, 187 F.3d at 1254. The Ninth Circuit considers similar factors. Young, 216 F.3d at 822. Thus, there are at least two different ways in which this Court could approach this issue. As the district court in Executive Arts noted, one measure is simply a comparison of the number of sites here to those in other cases. Executive Arts, 227 F.Supp.2d at 754. Another way of deciding the issue would be to consider the various factors considered by other circuits. In Renton, the Supreme Court found that the challenged ordinance allowed for *844 "reasonable alternative avenues of communication" where it left "520 acres, or more than five percent of the entire land area of Renton," open to use for adult businesses. There are few decisions within the Sixth Circuit following Renton that directly address the issue of whether a sufficient number of sites exist. If this Court were to base its ruling on those cases, the Court would find that reasonable alternative avenues of communication exist here. In Bronco's Entertainment, Ltd., the plaintiffs asserted that Van Buren Township's ordinance violated the First Amendment by unduly restricting expressive activity. The district court ruled that the township adopted the challenged ordinance to combat the secondary effects of SOBs and held that sufficient channels of expression were left open. The Sixth Circuit affirmed. In doing so, it noted that the "record supports the district court's finding that numerous channels of expression are available to [SOBs] in the township. The township presented detailed maps and other evidence demonstrating that 48 sites could be used under the current geographic restrictions and that 27 of these sites are `easily developed.'" Bronco's Entertainment, Ltd., 421 F.3d at 451. The Sixth Circuit further noted that the 27 easily developed sites equated to roughly one for every 900 residents of the township. The plaintiff in Jott, Inc. claimed that Clinton Township's ordinance was unconstitutional because it fails to allow for reasonable alternative avenues of communication. The Michigan Court of Appeals affirmed the trial court's decision that the challenged ordinance is a constitutionally valid time, place, and manner restriction. The appellate court held that "12 sites totaling 50.97 acres represents a reasonable opportunity under Ordinance 260 for Jott, Inc. to open and operate a topless bar within the Township." Id. at 534, 569 N.W.2d 841. In CLR Corp. v. Henline, 702 F.2d 637 (6th Cir.1983), the Sixth Circuit found the challenged ordinance did not allow for reasonable alternative avenues of communication where its impact was to permit only two to four restricted uses and those would be in a half-mile strip of the 25 square mile city of Wyoming, Michigan. In Executive Arts, 227 F. Supp. 2d 731 (W.D.Mich.2002), the district court found that the challenged ordinance, as applied, does not allow for adequate alternative channels of communication. The evidence presented by the parties established that there were either six or seven sites available for adult uses within the City of Grand Rapids, which comprised approximately 16.7 acres or .88% of the commercial area of the city. Although the court found this was insufficient as applied, the court expressly noted that it "might still conclude the number of sites (6 or 7) to be adequate if the uses regulated by Article 25 of the Zoning Ordinance were limited solely to adult bookstores or adult uses. That, however, is not the ordinance at issue. Article 25 of the Zoning Ordinance casts a broad net over various unrelated businesses, rendering them subject to the same locational restrictions as adult uses." Id. at 755. This is because the definition of "adult book store" in the ordinance at issue encompassed far more than businesses whose principal activity was the sale of adult material. It included businesses that offered only a small amount of sexually-explicit materials for sale. As a result, it covered many types of businesses that are not typically viewed as adult businesses, "such as a video store with a single shelf of sexually-explicit videos, a book store such as Schuler's Bookstore which has art books depicting the human anatomy, or a *845 party/convenience store with a small section of sexually-explicit magazines." Id. at 745. The challenged ordinance here, unlike the ordinance at issue in Executive Arts, does not contain an overly broad definition of SOBs. The Sixth Circuit affirmed in Executive Arts Studio, Inc. v. City of Grand Rapids, 391 F.3d 783 (6th Cir.2004). In doing so, it explained: [W]hen this ordinance is applied to Executive Art's situation, it is evidence that it fails constitutional scrutiny. This can generally only be perceived when Executive Arts sought a site for its business, for absent the additional regulated activities from which Executive Arts must maintain a distance, along with the increased number of these establishments due to the broad use of `segment or section' in the ordinance, it would appear that sufficient sites would be potentially available. Id. at 797 (emphasis added). In this case, the City of Warren has submitted evidence to establish that 39 sites are available for SOBs, 25 of which are viable and actually available for SOB use. That is considerably more than: 1) the two to four sites that were found insufficient in CLR; 2) the 12 sites that were found sufficient in Jott, Inc.; and 3) the 6 or 7 sites that were found inadequate in Executive Arts. The number of sites is most comparable to the 48 sites, 27 of which were easily developed, that were found sufficient in Bronco's Entertainment, Inc. Based on these cases, the Court finds that reasonable alternative avenues of communication exist here. As stated supra, although the Sixth Circuit has not formally adopted such an approach, other circuits have set forth various criteria for determining whether a sufficient number of sites exist, including: 1) the size of the population; 2) geographical size; 3) the number of acres available to adult uses as a percentage of geographic size; 4) the location of the sites within the municipality; 5) the number of adult entertainment establishments currently in existence; and 6) the number of adult entertainment establishments wishing to operate within the municipality. Boss Capital, 187 F.3d at 1254. Even if this Court were to consider these factors, however, the Court's conclusion would not change. One factor that other courts consider is population, geographic size, and percentage of geographic size. The City of Warren, Michigan is located in Southeastern Michigan. The United States Census Bureau reports that in 2000, Warren's population was 138,247. See www.quickfacts. census.gov. The Census Bureau reports that Warren is comprised of 34 square miles, which equates to 21,760 acres. Here, 46 acres out of approximately 22,000 acres is available for use by SOBs. The parties agree that works out to be approximately.8% of all commercial property. That is roughly the same percentage that was seen in Executive Arts, which may have been sufficient if it had not been for the very broad definition of adult book store in the ordinance. One district court within the Sixth Circuit has stated that courts "have generally found the number to be inadequate if fewer than a dozen sites, or under 1% of the city acreage, is potentially available." Dia v. City of Toledo, 937 F. Supp. 673, 678 (N.D.Ohio 1996). Here, far more than a dozen sites are available and those parcels comprise just under one percent of the City's commercial property. Another factor that courts consider is the ratio of available sites and population. Here, the available sites work out to a ratio of 1 site per 3,544 residents (population of 138,247 divided by 39). That is less favorable than the 1 site per 900 residents ratio that was sufficient in Bronco's Entertainment. *846 It is, however, significantly more favorable than the ratio in Executive Arts, which amounted to 1 site per 13,186. Again, the sites in Executive Arts may have been sufficient if it had not been for the very broad definition of adult book store in the ordinance. The Eleventh Circuit has stated that the number of SOBs in existence is a factor to be considered. Moreover, both the Eleventh and Ninth Circuits direct that evidence regarding supply and demand should be considered. In a footnote in Executive Arts, the Sixth Circuit appeared to agree that evidence regarding supply and demand for SOBs may be relevant to the inquiry. Executive Arts, 391 F.3d at 790 n. 3 (citing North Avenue Novelties, Inc. v. City of Chicago, 88 F.3d 441, 445 (7th Cir.1996)). In North Avenue, the Seventh Circuit held that sufficient alternate channels of communication existed where between 22 and 56 locations for SOBs existed in the City of Chicago. In so holding, the court noted that the evidence before it included that the "Chicago Zoning Administrator testified that his office receives only about 4 or 5 inquiries per year concerning possible adult use locations." Here, there is one SOB that currently exists in the City of Warren—Jon Jon's Lounge, an adult cabaret located at 28039 Mound Road that offers semi-nude entertainment. (See Wojno Affidavit). Jon Jon's Lounge was established in 1996 and recently expanded. (Id.; see also Cerrito Affidavit at ¶ 4). Aside from the license sought by Plaintiffs, the City of Warren has received only one other application for a SOB during the last five years. (Wojno Affidavit). The Court believes that the fact that only two licenses for SOBs have been requested in the last five years further supports the Court's finding that 39 potential new sites, in addition to the currently existing adult cabaret, provide for sufficient alternate channels of communication. B. Are The SOB Licensing Ordinances An Unconstitutional Prior Restraint On Protected Expression? There are two types of constitutional challenges to an ordinance: 1) facial challenges; and 2) applied challenges. The Sixth Circuit has explained the distinction between "facial" and "applied" challenges to legislative enactments as follows: A court may hold a statute unconstitutional either because it is invalid "on its face" or because it is unconstitutional "as applied" to a particular set of circumstances. Each holding carries an important difference in terms of outcome: If a statute is unconstitutional as applied, the State may continue to enforce the statute in different circumstances where it is not unconstitutional, but if a statute is unconstitutional on its face, the State may not enforce the statute under any circumstances. Traditionally, a plaintiff's burden in an as applied challenge is different than from that in a facial challenge. In an as applied challenge, "the plaintiff contends that application of the statute in the particular context in which he has acted, or in which he proposes to act, would be unconstitutional." Therefore, the constitutional challenge is limited to the plaintiff's particular situation. Ross v. Duggan, 113 Fed.Appx. 33 (6th Cir.2004) (quoting Women's Medical Professional Corp. v. Voinovich, 130 F.3d 187, 193 (6th Cir.1997)). Here, Plaintiffs appear to make only a facial challenge to the SOB Licensing Ordinances. (See Pl.'s brief at 15 asserting that the "City of Warren's SOB licensing scheme, though perhaps facially constitutional," is unconstitutional as applied to Plaintiffs) (emphasis added). Nevertheless, *847 the Court does not view that statement as an "admission" that the ordinances are facially constitutional. The Court will therefore consider both types of challenges. 1. Are The SOB Licensing Ordinances, On Their Face, Unconstitutional Prior Restraints On Protected Expression? A prior restraint exists when the exercise of a First Amendment right depends on the prior approval of public officials. Bronco's Entertainment, Inc., 421 F.3d at 444 (citing Deja Vu of Nashville, Inc. v. Metropolitan Government of Nashville, 274 F.3d 377, 400 (6th Cir.2001)). Prior restraints are presumptively invalid because of the risk of censorship associated with the vesting of unbridled discretion in governmental officials and the risk of indefinitely suppressing speech when a licensing law fails to provide for the prompt issuance of a license. Bronco's Entertainment, Inc., 421 F.3d at 444. To overcome the presumption of invalidity, a scheme for licensing sexually oriented businesses must incorporate procedural safeguards. Id. In Richland Bookmart, Inc., the Sixth Circuit held that "prompt judicial review and preservation of the status quo are the only constitutionally indispensable procedural safeguards." Richland Bookmart, Inc., 555 F.3d at 533 (emphasis in original). The court concluded that the SOB licensing scheme before it was indeed a prior restraint on protected speech. Id. at 532. It also explained, however, that "prior restraints are not unconstitutional per se." Id. at 533. It then proceeded to analyze whether the SOB licensing scheme before it met the requirements of providing for prompt judicial review and preservation of status quo. The court concluded that the SOB licensing scheme before it satisfied both constitutional requirements where it: 1) provides for prompt judicial review of a revoked license (Sec. 11); 2) provides for the preservation of the status quo while a license application is pending and while an appeal from a revocation of the license is pending: Sec. 5(a) states that a Temporary License shall be issued to an applicant within 24 hours, valid until a decision to grant or deny a license has been made, which is to occur within 20 days of application; and Sec. 11(b) states that a Provisional License shall be issued to any business initiating court action to challenge a license denial, suspension or revocation. As Defendants note (Response Br. at 10-11), the licensing scheme at issue here is essentially the same licensing scheme analyzed and held facially constitutional in Richland Bookmart, Inc.: Rich and Booksmart, Inc. This Case: Provides prompt review of Provides for prompt review a revoked license (Sec. 11) of a revoked license (Sec. 6-299). Provides for the preservation Provides for the preservation of the status quo while of the status quo while a license application is a license application is pending and while an pending and while an appeal from a revocation of appeal from a revocation of the license is pending: the license is pending: Sec. 5(a) states that a Sec. 6-285(a) provides that Temporary License shall be a temporary license shall be issued to an applicant within issued to an applicant 24 hours, valid until a "upon the filing of a completed decision to grant or deny a application," valid license has been made, until a decision of the City which is to occur within 20 to grant or deny a license days of application. has been made, which is to occur within 20 days of application. Sec. 11(b) states that a Sec. 6-299(b) states that a Provisional License shall be provisional license shall be issued to any business issued to any business initiating court action to initiating court action to challenge a license denial, challenge a license denial, suspension or revocation. suspension, or revocation. Thus, under Richland Bookmart, Inc., the licensing scheme here satisfies both requirements. On their face, therefore, the City of Warren's SOB Licensing Ordinances are not an unconstitutional prior restraint. *848 Accordingly, in order to establish a constitutional violation with respect to these ordinances, Plaintiffs must establish that the SOB Licensing Ordinances are an unconstitutional prior restraint as they have been applied to them. 2. Are The SOB Licensing Ordinances Unconstitutional Prior Restraints As Applied To Plaintiffs? Plaintiffs assert that the SOB licensing ordinances are an unconstitutional prior restraint because, even if facially valid, they are unconstitutional as applied to them by the City of Warren. As the City notes, Plaintiffs' briefs do not provide any standard for an analysis of this claim, nor do they cite to any cases where a court has held that such an "as applied" violation occurred. Rather, Plaintiffs appear to take the position that a constitutional violation somehow occurs if they can establish that the City of Warren failed to comply with any of the various provisions in its SOB licensing scheme. They do not provide any authority to support such a position and the Court finds it to be without merit. In order for a SOB licensing scheme to constitute an unconstitutional prior restraint on its face, the licensing scheme must fail to meet one of the only two constitutionally indispensable procedural safeguards: 1) prompt judicial review or 2) preservation of the status quo. Richland Bookmart, Inc., supra; see also East Brooks Books, Inc. v. City of Memphis, 48 F.3d 220 (6th Cir.1995) (the following two safeguards are essential: "the licensor must make the decision whether to issue the license within a specified and reasonable time period during which the status quo is maintained, and there must be the possibility of prompt judicial review in the event that the license is erroneously denied."). Thus, to show that the SOB licensing scheme is an unconstitutional prior restraint as actually applied to them, Plaintiffs must show that in their particular situation they were not actually afforded either: 1) prompt judicial review or 2) preservation of the status quo. In other words, the failures that the Plaintiffs complain of must go to one these two constitutionally required procedural safeguards. Just asserting that the City failed to follow some provision contained in its ordinances is not enough to establish a constitutional violation. a. Did The City Of Warren Fail To Make A Decision Within A Constitutionally Reasonable Time Period? Plaintiffs assert that "a licensing ordinance that permits public officials to effectively deny an application by sitting on it indefinitely" is invalid. Plaintiffs appear to assert that the SOB licensing scheme is an unconstitutional prior restraint, as applied to them, because they did not receive a decision on their SOB application until twenty-four (24) days after it was submitted, as opposed to the 20 days specified in the City's ordinance. Plaintiffs have not cited a single case in support of this position. The Court agrees with Plaintiffs that a city could have a licensing scheme that is constitutional on its face but is nevertheless unconstitutional as applied to their particular situation. In H.D.V.-Greektown, L.L.C. v. City of Detroit, 2008 WL 441487 (E.D.Mich.2008), the plaintiffs challenged a city's zoning ordinance and made both a facial and as-applied challenge. Although the trial court determined that the ordinance was not unconstitutional on its face, it nevertheless concluded that the ordinance was unconstitutional as applied to the plaintiffs. In doing so, it noted that the city had failed to actually act on the *849 plaintiffs' sign permit applications for over a span of three years. Thus, even though the City of Warren's SOB licensing scheme is facially constitutional and requires that a decision on an application to be made within a specified period of 20 days, the licensing scheme could be deemed unconstitutional, as applied, if the City actually failed to render a decision on Plaintiffs' application within a constitutionally reasonable amount of time. Twenty-four days, however, is not a constitutionally unreasonable period of time under the existing case law. See e.g., Bronco's Entertainment, Inc., 421 F.3d at 448 ("We believe that the time period within which the township must grant or deny an application for a license—a total of 44 business days," is "sufficiently brief.") Accordingly, the Court concludes that Plaintiffs' argument that the SOB licensing scheme constitutes an unconstitutional prior restraint because, as applied to them, they were not given a decision on their application within a constitutionally reasonable period of time, is without merit. b. Did The City Of Warren Fail To Preserve The Status Quo While Plaintiffs' Application Was Pending? Plaintiffs also assert that the City failed to maintain the status quo while their application was pending and note that the City did not grant Plaintiffs a temporary license after submission of their application. Temporary permits issued upon the submission of a completed application "are one way to comply with" the constitutional requirement that any restraint imposed in advance of a final judicial determination on the merits must be limited to the preservation of the status quo. Deja Vu of Cincinnati v. Union Twp. Bd. Of Trustees, 411 F.3d 777, 778 (6th Cir.2005) (emphasis added). They are not the only way of adequately preserving the status quo and are not required to pass constitutional muster. Id. (noting that the "resolution in the present case also provides for an additional First Amendment safeguard not contained in the ordinance that was upheld by the court in Littleton[2]—the issuance of a temporary permit."). In East Brooks Books, Inc. v. City of Memphis, 48 F.3d 220 (6th Cir.1995), the plaintiffs asserted that the licensing scheme at issue did not maintain the status quo pending judicial review. "Specifically, plaintiffs [asserted] that an applicant denied a permit must be allowed to operate pending judicial review." Id. at 225. The Sixth Circuit rejected that argument, explaining that the "status quo for a business seeking a permit to begin operating a sexually oriented business" is "non-operation. The city, therefore, does not need to allow operation pending review." It explained that "[a]t least in the case of a permit denial,"[3] the constitution "does not require more." The Court therefore concludes that Plaintiffs' argument that the SOB licensing scheme constitutes an unconstitutional prior restraint because, as applied to them, the status quo was not preserved while their application was pending, is without merit. Accordingly, the Court concludes that Plaintiffs cannot establish that the SOB licensing scheme constitutes an unconstitutional prior restraint, either facially or as applied to them. *850 II. Should This Court Exercise Supplemental Jurisdiction Over Plaintiffs' Remaining State Law Claims? Given that the Court's ruling that the City of Warren is entitled to summary judgment with respect to Plaintiffs' federal claims, the Court must consider whether it should exercise supplemental jurisdiction over the remaining state law claims. The applicable statute regarding supplemental jurisdiction, 28 U.S.C. § 1367, provides, in pertinent part, that district courts may decline to exercise supplemental jurisdiction over a claim when: 1) the claim raises a novel or complex issue of State law; 2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction; 3) the district court has dismissed all claims over which it has original jurisdiction, or 4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. 28 U.S.C. § 1367(c). In Moon, the Sixth Circuit addressed the issue of supplemental jurisdiction (also referred to as pendent jurisdiction) and reversed a district court's decision to exercise supplemental jurisdiction following dismissal of all federal claims in the case. Moon v. Harrison Piping Supply, 465 F.3d 719 (6th Cir.2006). In doing so, the court stated: [A] federal court that has dismissed a plaintiff's federal-law claims should not ordinarily reach the plaintiff's state-law claims. See 28 U.S.C. § 1367(c)(3); United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966) ("Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well."); Hankins v. The Gap, Inc., 84 F.3d 797, 803 (6th Cir. 1996); Gaff v. Fed. Deposit Ins. Corp., 814 F.2d 311, 319 (6th Cir.1987); Landefeld [v. Marion Gen. Hosp., Inc.], 994 F.2d [1178] at 1182 [(6th Cir.1993)]. Id. at 728. "Residual jurisdiction should be exercised only in cases where the `interests of judicial economy and the avoidance of multiplicity of litigation' outweigh our concern over `needlessly deciding state law issues.'" Id. (quoting Landefeld, 994 F.2d at 1182). The court further noted that in the "ordinary case," the exercise of pendent jurisdiction is improper. Id. The Court does not believe that interests of judicial economy outweigh the concern over needlessly deciding issues of state law here. This Court therefore declines to exercise jurisdiction over the remaining state law claims. CONCLUSION AND ORDER For the reasons set forth above, IT IS ORDERED that Plaintiffs' Motion for Summary Judgment is DENIED. It is further ORDERED that Defendant's Motion for Summary Judgment is GRANTED IN PART. The Motion is GRANTED to the extent that the Court grants summary judgment in favor of Defendant with respect to Plaintiffs' federal claims. The Court DECLINES TO EXERCISE SUPPLEMENTAL JURISDICTION over Plaintiffs' remaining state law claims and therefore DISMISSES those claims. IT IS SO ORDERED. NOTES [1] In Executive Arts, the Sixth Circuit noted that the district court looked to the factors in Boss Capital. However, it did not expressly adopt the approach or apply the various factors set forth in Boss Capital. [2] City of Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774, 124 S. Ct. 2219, 159 L. Ed. 2d 84 (2004). [3] Instances where a SOB is already licensed and operating, and then has its permit revoked, present a different situation but that is not the situation presented here.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2767585/

Case: 14-20105 Document: 00512894300 Page: 1 Date Filed: 01/08/2015 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 14-20105 FILED Summary Calendar January 8, 2015 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff - Appellee v. FRANCISCO RODRIGUEZ, Defendant - Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 4:12-CR-744-1 Before JOLLY, BARKSDALE, and OWEN, Circuit Judges. PER CURIAM: * Francisco Rodriguez challenges the 168-month sentence imposed for his conviction for possession, with intent to distribute, 500 grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1). He claims the sentence is procedurally unreasonable because the district court failed to adequately explain it. * 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: 14-20105 Document: 00512894300 Page: 2 Date Filed: 01/08/2015 No. 14-20105 Although post-Booker, the Sentencing Guidelines are advisory only, and a properly preserved objection to an ultimate sentence is reviewed for reasonableness under an abuse-of-discretion standard, the district court must still properly calculate the advisory Guidelines-sentencing range for use in deciding on the sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that respect, for issues preserved in district court, its application of the Guidelines is reviewed de novo; its factual findings, only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). But, Rodriguez did not raise this issue in district court; therefore, review is only for plain error. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012). Under that standard, he must show a forfeited plain (clear or obvious) error that affected his substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he does so, we have the discretion to correct the error, but should do so only if it seriously affects the fairness, integrity, or public reputation of the proceedings. Id. At sentencing, the district court stated that it had considered the 18 U.S.C. § 3553(a) sentencing factors. In any event, because the sentence imposed was within the advisory-Guidelines-sentencing range, little explanation of the sentence was required, Rita v. United States, 551 U.S. 338, 356-57 (2007); and our court will infer the district court considered the § 3553(a) sentencing factors, e.g., United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). Therefore, even assuming arguendo the district court erred, Rodriguez has not shown that his substantial rights were affected. E.g., United States v. Mondragon-Santiago, 564 F.3d 357, 365 (5th Cir. 2009). AFFIRMED. 2

01-03-2023

01-08-2015

https://www.courtlistener.com/api/rest/v3/opinions/4538766/

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4053-18T2 RAYMOND L. CAPRA, Plaintiff-Appellant, v. SETON HALL UNIVERSITY, an educational corporation of New Jersey, Defendant-Respondent. __________________________ Submitted May 11, 2020 – Decided June 4, 2020 Before Judges Geiger and Natali. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-0891-18. Rabner, Baumgart, Ben-Asher & Nirenberg, PC, and S. Micah Salb (Lippman, Semsker & Salb, LLC) of the Maryland bar, admitted pro hac vice, attorneys for appellant (Eugenie F. Temmler, of counsel; David H. Ben-Asher, of counsel and on the briefs; S. Micah Salb, on the briefs). McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys for respondent (James P. Lidon, of counsel and on the brief; Kelly R. Anderson, on the brief). PER CURIAM Plaintiff Raymond L. Capra appeals from a January 31, 2019 Law Division order denying his motion for summary judgment; a February 11, 2019 order granting summary judgment to defendant Seton Hall University (Seton Hall) dismissing counts one and two of Capra's complaint; and an April 12, 2019 order granting summary judgment to defendant dismissing count three of the complaint.1 Capra argues the motion court erred in granting summary judgment because he presented prima facie evidence that Seton Hall breached its employment contract with him and acted in bad faith. We disagree and affirm. I. In 2006, Seton Hall hired Capra as a full-time instructor in the Classical Studies in the Languages, Literatures, and Cultures Department (the Department). The terms of Capra's employment were outlined in the Full-Time Faculty Member 1 Plaintiff did not brief the dismissal of his claim for declaratory judgment (count three). We deem the issue waived and decline to address it. See Woodlands Cmty. Ass'n v. Mitchell, 450 N.J. Super. 310, 318-19 (App. Div. 2017) ("An issue not briefed on appeal is deemed waived." (quoting Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011))); Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2020) (same). A-4053-18T2 2 Term Contract that both he and Seton Hall renewed annually. In 2010, Capra received a Ph.D. in Classical Philology. That same year, he was selected for a tenure-track position at Seton Hall as an Assistant Professor. Following the promotion, Capra signed a series of annual Full-Time Faculty Member Probationary contracts. Each probationary contract required Capra to "apply for tenure not later than the fall semester of 2015." In the event he was not granted tenure, his employment would "automatically terminate on June 30, 2017." The contracts also stated that "[t]here is no automatic right to tenure. Tenure is conferred only by specific affirmative action by the University's Board of Regents." Each contract noted that Capra's position with Seton Hall was "subject to the Faculty Guide." In the fall of 2015, Capra applied for promotion to the position of Associate Professor with tenure. Capra acknowledges that the Department's Policies and Procedures Regarding Applications for Promotion and Tenure impose the following minimum scholarly performance requirements: (1) at least four articles published or accepted in peer-reviewed journals and at least one additional scholarly article published; (2) a contract or manuscript pending publication; (3) at least five conference papers given; and (4) a clear research program laid out. A-4053-18T2 3 Further, Capra acknowledges the standards, criteria, policies, and procedures pertaining to promotion and tenure are contained in Article 4 of Seton Hall's Faculty Guide. Under Article 4, three overarching factors would be applied in evaluating Capra's application: (1) teaching effectiveness; (2) scholarship; and (3) service to Seton Hall, the profession, and the community. Moreover, Capra had to demonstrate "four (4) years of full-time college or university teaching experience, evidence of teaching excellence, scholarly publication, research, or other creative work in the appropriate discipline or field" and "promotion to this rank rests on proven ability and accomplishments." (Emphasis added). Capra's application was first considered by the Rank and Tenure Committee for the Languages, Literatures, and Cultures Department. There, Capra was recommended for promotion by an anonymous vote of fourteen to one. The dissenting voter noted Capra's limited publications, having "published only two articles for the book chapters in the fall of 2010 and in the spring of 2015." Another colleague, who voted to advance Capra's application, did so "[d]espite [Capra] having few publications." A colleague who voted in favor of the promotion expressed "considerable misgivings about [Capra's] scholarly record and promise," stating "two chapters in books (not even peer-reviewed articles) are not sufficient to merit tenure according to our Departmental standards." Another colleague stated, "I A-4053-18T2 4 wish he had a more active profile in scholarship." The Chair of the Department supported Capra's promotion but noted "[w]hile several voters wished that Dr. Capra had been able to publish a bit more, only the lone dissenter felt that Dr. Capra's scholarship did not meet departmental requirements." Next, Capra's application was considered by the Rank and Tenure Committee for the College of Liberal Arts and Sciences, which recommended Capra for promotion by an anonymous vote of seven to two. One dissenting voter explained "Capra's research/scholarly productivity is not sufficient to warrant tenure and promotion to associate professor." The other dissenting Committee member stated: "Unfortunately, [Capra's] scholarship output is low. He only has produced [three] publications in the time since his hire: one of these publications being a book review." Another Committee member stated Capra has been "less productive" in his scholarship and had produced "not quite enough to meet the department's standards." Under the Faculty Guide, the Dean of the College of Arts and Sciences submits a separate recommendation to the Provost. The Dean recommended promoting Capra to Associate Professor but expressed the following concern, "I, like a few of his colleagues, lament his limited publications, albeit in substantial presses." Capra's application was then submitted to the University Rank and Tenure Committee for review. Under the Faculty Guide, the Committee issues its A-4053-18T2 5 recommendations to the Provost. The Committee recommended that Capra be promoted and granted tenure by a vote of eight to three. Finally, Capra's application was submitted to Seton Hall's Provost. At the time, Dr. Larry A. Robinson served as the Provost and Executive Vice President. In his capacity as provost, Robinson was required by the Faculty Guide to consider each application for promotion and/or tenure after the applicant's department, College Rank and Tenure Committee, dean, and the University Rank and Tenure Committee had evaluated the application and provided their advisory recommendations. The prior recommendations were not binding meaning the provost could either endorse the application—thereafter referring it to the University's Board of Regents for consideration and approval—or deny it. A denial would be final unless "the application had been positively recommended by majority vote of the University Rank and Tenure Committee." In that case, "the decision of the provost is appealable to the president" by letter. Robinson denied Capra's application. In a March 16, 2016 letter, Robinson advised Capra: I have carefully considered your application for Associate Professor with Tenure. This review has included my personal study of your application materials, as well as the recommendations of your department, dean, and University Rank and Tenure Committee. A-4053-18T2 6 I regret to inform you that I am unable to recommend you for promotion to the rank of Associate Professor with Tenure. My decision is based on my evaluation of your performance as a faculty member according to the criteria, and only the criteria, set forth in Article 4.1- 4.5 of the Faculty Guide, which states the standards in the areas of Teaching Effectiveness, Scholarship, and Service to the University, the Profession and the Community. I am appreciative of the contributions that you have made to Seton Hall. Capra appealed Robinson's decision to Seton Hall's then President, Dr. A. Gabriel Esteban. In his letter to President Esteban, Capra surmised that the Robinson's denial was due to his "error in writing the application in that [he] underrepresented [his] scholarship as required under Faculty Guide 4.3b." He claimed this underrepresentation "led to a few negative evaluations of [his] scholarship and may have been a factor in the Provost's decision." On April 8, 2016, President Esteban notified Capra that she would not overturn Robinson's decision, stating that "[a]fter careful consideration and reflection, I have decided to not grant your appeal to overturn the Provost's decision that you have not yet fully satisfied all criteria for the rank of associate professor with tenure as contained in Article 4-1 to 4.5." A-4053-18T2 7 On February 6, 2018, Capra filed a three-count complaint alleging breach of contract (count one) and breach of the implied covenant of good faith and fair dealing (count two) based upon Robinson's purportedly generic denial letter. Capra also sought a declaratory judgment (count three) that he "satisfied the requirements of the Faculty Guide for promotion and tenure, and that [Seton Hall] is obligated to grant promotion and tenure to [Capra], retroactive to July 1, 2016," and award him back pay, lost benefits, punitive damages, interest, and costs. Capra moved for summary judgment on counts one and two while Seton Hall cross-moved for summary judgment as to those same counts. The motion court heard oral argument on January 31, 2019.2 It issued an oral decision and separate orders denying Capra's motion and granting Seton Hall's cross-motion. Regarding Capra's breach of contract claim, the motion court found that he failed "to identify any contractual provisions that require [Seton Hall or Robinson] to provide detailed reasoning when denying an application for promotion to associate professor with tenure."3 The court determined that Seton Hall was not 2 The complaint did not allege that Seton Hall breached the contract by not providing annual evaluations of Capra. In addition, Capra made no such argument during oral argument before the motion court. 3 The motion court did not consider Capra's late reply brief and opposition to Seton Hall's cross-motion, which were received by the court on January 30, A-4053-18T2 8 obligated to promote Capra but "was [only] required to weigh certain criteria and follow certain procedures in evaluating his application for promotion," which it did. As to Capra's implied covenant of good faith and fair dealing claim, the motion court concluded that Capra could not "establish that . . . defendant acted pursuant to [an] improper motive or in bad faith in the evaluation of [his] application for promotion." Seton Hall subsequently moved for summary judgment on count three. The motion court granted defendant's unopposed motion dismissing that count. This appeal followed. Defendant raises the following points for our consideration: POINT I. SETON HALL DENIED DR. CAPRA'S APPLICATION FOR PROMOTION WITHOUT REASON. A. Seton Hall and Dr. Capra Formed a Contract. B. Dr. Capra Fully Satisfied the Criteria for Promotion. 1. It is Undisputed that Dr. Capra Satisfied the Effective Teaching Requirement. 2. It is Equally Clear – and Undisputed – that Dr. Capra Satisfied the Record of Service Requirement. 2019, the day before the motions' return date. See R. 4:46-1 (requiring reply briefs and opposition to cross-motions to be served and filed not later than four days before the return date). A-4053-18T2 9 3. Dr. Capra Has Proved Excellence in His Scholarship. 4. Tenure is Consistent with "the Needs of the Department or College." C. The Provost Denied Dr. Capra's Application Without Reason. D. Seton Hall Also Refused to Identify Any Reasons for the Provost's Decision During the Litigation. POINT II. BY DENYING DR. CAPRA'S APPLICATION FOR PROMOTION WITHOUT EXPLANATION, SETON HALL BREACHED ITS CONTRACT WITH DR. CAPRA. POINT III. SETON HALL IS FORECLOSED FROM ARGUING THAT DR. CAPRA'S JOB PERFORMANCE DID NOT MERIT PROMOTION. POINT IV. THE PROVOST IS NOT EMPOWERED TO MAKE HIS DECISIONS BY FIAT. POINT V. SETON HALL'S ARBITRARY DECISION CONSTITUTES A BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING. POINT VI. THE TRIAL COURT PLAINLY VIOLATED LAW BY GRANTING DEFENDANT'S CROSS-MOTION. II. Our review of a ruling on summary judgment is de novo, applying the same legal standard as the motion court. Townsend v. Pierre, 221 N.J. 36, 59 A-4053-18T2 10 (2015) (citing Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014)). That is, we "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Summary judgment must be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." RSI Bank v. Providence Mut. Fire Ins. Co., 234 N.J. 459, 472 (2018) (quoting R. 4:46-2(c)). "When no issue of fact exists, and only a question of law remains," a reviewing court "affords no special deference to the legal determinations of the trial court." Ibid. (quoting Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 (2016)). III. We first address Capra's claim that the motion court erred by dismissing his breach of contract claim. We disagree. A-4053-18T2 11 Capra argues "Seton Hall breached its contract with [him] because it cannot demonstrate that it evaluated [his] application for promotion according to the criteria stated in the" Faculty Guide. The motion court noted that Article 5.3 of the Faculty Guide "omits the provost from the listed individuals and bodies required to provide reasons for a recommendation." Thus, unlike the prior reviewers, the provost is only required to notify an applicant "of his action on the application," namely whether he endorsed or denied it. Robinson did just that, advising Capra that he was "unable to recommend [Capra] for promotion to the rank of Associate Professor with Tenure." Capra states that he had written three book chapters and two book reviews; was working with another author to translate a book into English; delivered presentations at eleven academic conferences; and had various ideas for future research projects. However, despite Capra's accomplishments, several of his colleagues—both voting for and against Capra's promotion—cited his lack of academic work as his primary setback. Even the Dean acknowledged Capra's "limited publications." The Faculty Guide makes clear that only advisory "recommendations" were garnered from the three Rank and Tenure Committees and the Dean. Robinson was free to endorse or deny it without relying upon faculty opinion. A-4053-18T2 12 Neither Capra's self-serving representations regarding his academic credentials, nor the comments of colleagues in favor of promotion and tenure, suffice to create an issue of disputed material fact precluding summary judgment. See Molthan v. Temple Univ. of Com. Sys. of Higher Educ., 778 F.2d 955, 962 (3d Cir. 1985) (stating "the evidence as a whole must show more than a denial of tenure [or promotion] in the context of disagreement about the scholarly merits of the candidate's academic work, the candidate's teaching abilities or the academic needs of the department or university") (alteration in original) (quoting Zahorik v. Cornell Univ., 729 F.2d 85, 94 (2d Cir. 1984)); Sarmiento v. Montclair State Univ., 513 F. Supp. 2d 72, 89 (D.N.J. 2007) (finding "plaintiff's subjective belief he was more qualified for the job does not create an issue of fact for the jury") (quoting Dungee v. Ne. Foods, Inc., 940 F. Supp. 682, 689 (D.N.J. 1999), aff'd, 285 F. App'x 905 (3d Cir. 2008)); Harel v. Rutgers, State Univ., 5 F. Supp. 2d 246, 271 (D.N.J. 1998) (explaining that Faculty Appeal Board's recommendation for tenure and disagreement with the President, Vice President, and University's denial of tenure was insufficient to warrant grant of tenure), aff'd sub nom., Harel v. Rutgers, 191 F.3d 444 (3d Cir. 1999). Capra also argues that Seton Hall "breached the contract by failing to provide [him] with the annual evaluations required by the contract." He claims "Seton Hall A-4053-18T2 13 evaluated [him] only once during his five years of probationary service" and did not advise him of his progress toward tenure. Capra's complaint, however, does not allege that Seton Hall breached the contract by failing to perform annual evaluations or contain any facts in support of that claim. Capra cannot amend the complaint through opposition to a dispositive motion. See Labree v. Mobil Oil Corp., 300 N.J. Super. 234, 236-37 (App. Div. 1997) (rejecting a plaintiff's fraud claim first raised in an opposing brief where the complaint did not allege fraud, the underlying facts for fraud were not pleaded, and plaintiff did not move to amend the complaint). Moreover, this argument was not argued before the motion court and was not decided on the merits. "[A]ppellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest." Selective Ins. Co. of Am. v. Rothman, 208 N.J. 580, 586 (2012) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). Capra does not raise jurisdictional questions or matters of significant public interest.4 4 In his reply brief on appeal, Capra concedes that Seton Hall's failure to conduct annual evaluations is not reviewable. Moreover, the record establishes that Capra was denied promotion and tenure due to inadequate scholarship not inadequate work performance, teaching effectiveness, or service to Seton Hall, the profession, and A-4053-18T2 14 Capra also argues that his employment contract with Seton Hall is illusory because "[u]nder [Seton Hall's] interpretation of the contract, [it] could never be held to its promise to evaluate tenure applications based on the criteria established by the" Faculty Guide. The record demonstrates, however, that Robinson's discretion was not "unfettered," as Capra claims. Instead, as provost, he was required to evaluate each application for tenure according to the Faculty Guide criteria and then to "notify each applicant of his action on the application." In his denial letter to Capra, Robinson stated that he based his decision upon Articles 4.1 to .5, "which states the standards in the areas of Teaching Effectiveness, Scholarship, and Service to the University, the Profession and the Community." Robinson certified that he "conducted [his] own independent review and analysis" of Capra's application, which was "extensive, rigorous and contemplative." Ultimately, he concluded that "Capra's record as a whole did not evidence sufficient proven ability and community. In any event, the minimum requirements for adequate scholarly performance are set forth in Department Policies and the Faculty Guide. Capra does not claim he was unaware of those requirements nor does he claim that annual evaluations were necessary to inform him whether he met those requirements. He merely argues that annual evaluations were not performed in four of his five probationary years. For these reasons, we decline to consider this issue. A-4053-18T2 15 accomplishments during his probationary period to merit a promotion to Associate Professor with the accompanying award of lifetime tenure." In any event, Robinson's decision was not final because Capra appealed to President Esteban, who could have reversed it. The record also indicates Capra later pursued reconsideration by interim President, Mary J. Meehan, who responded: In your request to me for reconsideration, you offer only your own disagreement with the academic judgments of both the former Provost and former President. Essentially, you are asking me to consider substituting my judgment for the judgment of my predecessor and the former Provost. This I cannot do - - your personal disagreement (and the several letters of support from former students and one of your own professors) is not a basis to revisit the substantive and reasoned decisions made before my arrival at the University. Indeed, both under the Faculty Guide and through your attorney, you have been provided with ample opportunity to explain and advance your application and dispute any aspect of the decisions by Drs. Robinson and Esteban. Consequently, not only have you exhausted all appeals under the Faculty Guide, but you present no basis for reconsideration. [(Emphasis omitted).] The contract was not illusory; it provided further review of the provost's decision to deny an application for promotion and tenure, which Capra availed himself of. A-4053-18T2 16 IV. Finally, Capra argues Seton Hall breached the implied covenant of good faith and fair dealing by denying his "application without stating any facts, reasons, or analysis for the decision—indeed, without even proof that the [P]rovost considered the application on its merits—it acted capriciously and it breached the covenant of good faith and fair dealing." We are unpersuaded by this argument. The implied covenant of good faith and fair dealing is "a component of every contract." Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 109 (2007). "'Good faith' entails adherence to 'community standards of decency, fairness or reasonableness.'" Id. at 109-10 (quoting Wilson v. Amerada Hess Corp., 168 N.J. 236, 245 (2001)). It "requires a party to refrain from 'destroying or injuring the right of the other party to receive' its contractual benefits." Id. at 110 (quoting Brunswick Hills Racquet Club, Inc. v. Route 18 Shopping Ctr. Assocs., 182 N.J. 210, 224-25 (2005)). Accordingly, to succeed on this claim a plaintiff must demonstrate a defendant's "bad motive or intention." Ibid. (quoting Brunswick Hills, 182 N.J. at 225). The motion court concluded that Capra could not establish Seton Hall acted with an "improper motive or in bad faith in the evaluation of [Capra's] application for promotion." The court found that the contractual "process and procedure were followed, event to the extent that after this [P]rovost denied him, he followed the A-4053-18T2 17 next process, which was an appeal, and was addressed by the [P]resident, who had the right and the authority to overrule the [P]rovost and did not." A party opposing summary judgment cannot merely rely on unsupported allegations in its pleadings. See Pressler & Verniero, cmt. 2.2 on R. 4:46-2 ("[B]are conclusions in the pleadings without factual support in affidavits will not defeat a motion for summary judgment." (Citations omitted)). During discovery, Capra elected not to take any depositions. As a result, there is no testimony impeaching Robinson or President Esteban, which might have lent credence to his bad faith claim. The motion record contains no other evidence of any improper motive or intention. As the motion court noted, the record demonstrates that Seton Hall provided Capra with the proper procedures and notice for promotion that were contractually afforded to him by the Faculty Guide. Capra has not demonstrated a prima facie case for a breach of the implied covenant of good faith and fair dealing. See Wilson, 168 N.J. at 251 (holding that bad motive or intention is an essential element of a breach of the implied covenant of good faith claim). Additionally, Seton Hall presented Robinson's certification, explaining that he engaged in an "independent," "extensive," "rigorous," "contemplative," and A-4053-18T2 18 "thorough review" of Capra's application and his decision to deny it came after "careful deliberation." Robinson also noted the following: I understand that Dr. Capra now asserts that my decision not to endorse his application to the University's Board of Regents represents bad faith conduct on my part that resulted in a breach of contract by the University. Those allegations reflect both a dramatic change and deviation from Dr. Capra's previously-stated acceptance of responsibility for the denial of his application [detailed in his March 21, 2016 letter to President Esteban] and a troubling lack of candor. . . . It is noteworthy that Dr. Capra did not accuse me of failing to review his application until after Dr. Esteban denied his appeal. . . . In sum, although Capra claims that Robinson and Seton Hall reviewed his application in bad faith, his "[b]are conclusions in the pleadings without factual support in tendered affidavits, will not defeat a meritorious application for summary judgment." Cortez v. Gindhart, 435 N.J. Super. 589, 606 (App. Div. 2014) (quoting Brae Asset Fund, L.P. v. Newman, 327 N.J. Super. 129, 134 (App. Div. 1999)). It was Capra's burden, in response to Seton Hall's motion for summary judgment, to present evidence demonstrating there is a genuine issue of material fact for trial. Brill, 142 N.J. at 528-29; Pressler & Verniero, cmt. 2.2 on R. 4:46-2. He failed to do so. Accordingly, the court properly granted summary judgment dismissing count two. A-4053-18T2 19 Capra's remaining arguments are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). Affirmed. A-4053-18T2 20

01-03-2023

06-04-2020