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https://www.courtlistener.com/api/rest/v3/opinions/3224262/ | Appeal dismissed. *Page 698 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3224267/ | On Rehearing.
The statement in Deason v. Alabama Great Southern, supra, on the subject of the burden of proof in cases like this, was repeated in Southern Railway v. Slade, 192 Ala. 570, 68 So. 867, but hardly under circumstances to make it more authoritative than in the first-named case, as we find upon consulting the original transcript of the record on file in this court. On consideration that this question will recur, and that it should be decided on correct principle, the court adheres to the ruling expressed in its first opinion. Louisville Nashville v. Miller, 109 Ala. 500, 19 So. 989, is also cited by appellees to this point. But, very clearly, the opinion in that case is inapt. It deals with the sufficiency of the complaint. But, while the question of the burden of proof was not at issue, the court was far from any expression in favor of appellees' contention. The court said that the *Page 63
presence on the right of way of sufficient dry grass for ignition and communication of fire to adjacent property was evidence of negligence, for which the railroad company would be liable "if it was there in consequence of the defendant's negligence"; and in Southern Railway v. Slade, supra, a case on all fours with this, the court held that defendant's liability was a question for the jury. For these reasons, thus briefly stated, the court is of opinion that the application for rehearing should be overruled.
Application overruled.
All the Justices concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2891700/ | NO. 07-05-0204-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
SEPTEMBER 28, 2005
______________________________
RONALD THOMAS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 64TH DISTRICT COURT OF HALE COUNTY;
NO. A15178-0310; HONORABLE ROBERT W. KINKAID, JR., JUDGE
_______________________________
Before QUINN, C.J., and REAVIS and HANCOCK, JJ.
ON ABATEMENT AND REMAND
Appellant Ronald Thomas has appealed his conviction and sentence following his
conviction for possession of a controlled substance and assessment of punishment that
includes an 18 month sentence in a state jail facility. A copy of a notice of appeal was filed
with this Court on June 7, 2005. The clerk’s record and reporter’s record have been filed.
An order allowing trial counsel, Mr. Kregg Hukill, to withdraw was granted by the trial court
on June 6, 2005. No appellate counsel has been appointed.
Appellant’s brief was due on August 22, 2005 and has not been filed. The clerk of
this court sent a letter, dated September 14, 2005, to appellant notifying him that the brief
and an extension of time to file the brief had not been filed. No response to the clerk’s
letter has been received.
The trial court has the responsibility for appointing counsel to represent indigent
defendants, as well as the authority to relieve or replace counsel. TEX . CODE CRIM . PROC .
ANN . arts. 1.051(d), 26.04(c) (Vernon 2005 & Supp. 2004). See also Enriquez v. State, 999
S.W.2d 906, 907 (Tex.App.–Waco 1999, no pet.). Accordingly, we now abate this appeal
and remand the cause to the trial court for further proceedings. TEX . R. APP. P. 43.6.
Upon remand the trial court shall immediately conduct such hearings as may be
necessary to determine the following, causing proper notice of any such hearing to be
given:
1. whether appellant still desires to prosecute this appeal and is indigent
and entitled to appointed counsel.
Should it be determined that appellant desires to continue the appeal, then the trial
court shall also take such measures as may be necessary to assure appellant effective
assistance of counsel, which measures may include the appointment of new counsel. If
new counsel is appointed, the name, address, telephone number, and state bar number
of counsel shall be included in the order appointing new counsel.
The trial court shall execute findings of fact, conclusions of law, and such orders as
the court may enter regarding the aforementioned issues and cause its findings and
2
conclusions to be included in a supplemental clerk's record. A supplemental reporter's
record of any hearing shall also be included in the appellate record. The trial court shall
file the supplemental clerk's record and the supplemental reporter's record with the Clerk
of this Court by October 28, 2005. Finally, if new counsel is appointed, appellant's brief will
be due within 30 days after the deadline for filing of the supplemental clerk's record and
the supplemental reporter's record and the State's brief will be due within 30 days
thereafter. TEX . R. APP. P. 38.6(a) & (b).
It is so ordered.
Per Curiam
Do not publish.
3 | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2670511/ | 13-2760
Pathania v. Metropolitan Museum of Art
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR
AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
18th day of April, two thousand fourteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
JOHN M. WALKER, JR.,
CHRISTOPHER F. DRONEY,
Circuit Judges.
____________________________________________
AJAY PATHANIA,
Plaintiff-Appellant,
v. No. 13-2760
METROPOLITAN MUSEUM OF ART,
Defendant-Appellee.*
____________________________________________
For Plaintiff-Appellant: STEWART LEE KARLIN, The Law Offices of Stewart
Lee Karlin, P.C., New York, NY.
*
The Clerk of the Court is directed to amend the official caption to conform to the above.
1
For Defendant-Appellee: RICHARD H. BLOCK (Jessica W. Catlow, on the
brief), Mintz, Levin, Cohn, Ferris, Glovsky and
Popeo, P.C., New York, NY.
Appeal from a judgment entered following an order granting, in part, defendant-
appellee’s motion for summary judgment (Azrack, M.J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court be and is hereby AFFIRMED.
Plaintiff-Appellant Ajay Pathania appeals a June 20, 2013 judgment entered by the
United States District Court for the Eastern District of New York (Azrack, M.J.) pursuant to an
order granting, in part, the motion of Defendant-Appellee Metropolitan Museum of Art (“the
Met”) for summary judgment.1 On appeal, Pathania contends that the district court erred in
granting the Met summary judgment as to his hybrid § 301/ Duty of Fair Representation (“§ 301/
DFR”) claim. We assume the parties’ familiarity with the underlying facts and procedural
history, to which we refer only as necessary to explain our decision. For the reasons that follow,
we affirm.
We review the district court’s grant of summary judgment de novo, resolving all
ambiguities and drawing all reasonable inferences in favor of the non-moving party. See Garanti
Finansal Kiralama A.S. v. Aqua Marine & Trading Inc., 697 F.3d 59, 63–64 (2d Cir. 2012).
Summary judgment is appropriate only where the record shows “that there is no genuine dispute
1
The parties consented to proceed before a magistrate judge and to the magistrate judge’s
authority to direct the entry of final judgment. See D. Ct. Dkt. No. 29. Following the district
court’s partial grant of the Met’s motion for summary judgment, the parties stipulated to the
dismissal with prejudice of the sole surviving claim. See D. Ct. Dkt. No. 50.
2
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a).
The elements of a § 301/DFR claim are well established. To prevail, the plaintiff must
prove “(1) that the employer breached a collective bargaining agreement and (2) that the union
breached its duty of fair representation vis-a-vis the union members.” White v. White Rose Food,
237 F.3d 174, 178 (2d Cir. 2001). While the district court ruled that the Met was entitled to
summary judgment as to both elements, we find the second element dispositive and so do not
reach the first.
A union breaches its duty of fair representation when its conduct towards its members is
arbitrary, discriminatory, or undertaken in bad faith. See Marquez v. Screen Actors Guild, Inc.,
525 U.S. 33, 44 (1998); see also Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 67 (1991).
Having shown that the union’s actions meet this standard, the plaintiff must then “demonstrate a
causal connection between the union’s wrongful conduct and [the plaintiff’s] injuries.” Spellacy
v. Airline Pilots Ass’n–Int’l, 156 F.3d 120, 126 (2d Cir. 1998).
Pathania argues that the decision by District Council 37, Local 1503 (“the Union”) not to
bring a grievance on his behalf to challenge the legitimacy of his layoff under the Union’s
collective bargaining agreement was either arbitrary or undertaken in bad faith. “[A] union’s
actions are arbitrary only if, in light of the factual and legal landscape at the time of the union’s
actions, the union’s behavior is so far outside a ‘wide range of reasonableness,’ . . . as to be
irrational,” id. at 129 (alterations in original) (quoting O’Neill, 499 U.S. at 67) (internal quotation
marks omitted), and we have noted that this latitude of discretion means that “[a] union’s
reasoned decision to support the interests of one group of employees over the competing interests
3
of another group does not constitute arbitrary conduct,” id. We have similarly noted that “the
duty of fair representation is not breached where the union fails . . . to process a grievance due to
error in evaluating the merits of the grievance.” Cruz v. Local Union No. 3 of Int’l Bhd. of Elec.
Workers, 34 F.3d 1148, 1153-54 (2d Cir. 1994). Finally, we note that “[a] showing of bad faith
requires a showing of fraudulent, deceitful, or dishonest action.” White, 237 F.3d at 179 (internal
quotation marks and alterations omitted).
Notwithstanding these precedents, Pathania contends, first, that he is entitled to an
“inference” that the Union breached its duty of fair representation because the Met’s breach of
the collective bargaining agreement was so apparent, and, second, that the fact that he had
contested a Union election three months prior to his layoff raises at least a triable issue of fact as
to whether the Union decided not to bring a grievance in order to retaliate against him.
The first of Pathania’s arguments appears to suggest that the obviousness of the Met’s
breach raises the inference that the Union acted arbitrarily in declining to bring a grievance. This
proposition finds no support in the law of this Circuit, and we decline to invent such a link
between the first and second elements of a § 301/ DFR claim here. Because evidence adduced on
summary judgment established that the Union took its position on the merits of Pathania’s
grievance on the basis of a reasoned judgment about the optimal way in which seniority-based
layoffs should be undertaken (that is, to assure that skill sets of Met employees were preserved),
we conclude that the Union did not act arbitrarily in declining to bring Pathania’s grievance.
The second of Pathania’s arguments in support of an “inference” of bad faith is also
soundly defeated by the Met’s evidentiary showing on summary judgment. Assuming, arguendo,
that the temporal proximity of Pathania’s contesting of a Union election and the Union’s decision
4
not to bring a grievance on his behalf raises a plausible inference that the Union acted in bad
faith, the Met’s evidentiary showing on summary judgment renders that inference unreasonable.
The Met introduced evidence that the Union decided not to press Pathania’s grievance following
its negotiations with the Met about the Met’s across-the-board layoffs, and that the Union
subsequently made a good faith determination not to contest the Met’s decision that Pathania and
nineteen of his peers should be laid off due to their relative seniority within each shop. We
discern no evidence of fraud, deceit, or dishonesty in the Union’s reasoned explanation for its
decision not to bring a grievance on Pathania’s behalf. On the contrary, whether evincing a good
faith (but perhaps erroneous) interpretation of the collective bargaining agreement, or a
principled determination by the Union that its membership’s broader interests were better served
if the Met’s across-the-board layoffs respected the seniority of Union members within each shop,
the Union’s decision not to bring grievances on behalf of members such as Pathania was patently
above the minimum requirements of the implied duty of fair representation. Accordingly, we
affirm the grant of summary judgment in the Met’s favor regarding Pathania’s § 301/ DFR claim.
We have considered Pathania’s remaining arguments and find them to be without merit.
For the reasons stated herein, the judgment of the district court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
5 | 01-03-2023 | 04-19-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/2670513/ | 13-1498-ag
Mesura v. Holder
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order
filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 18th day of April, two thousand fourteen.
PRESENT:
GUIDO CALABRESI,
JOSÉ A. CABRANES,
DEBRA ANN LIVINGSTON,
Circuit Judges.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
JONATHAN MESURA,
Petitioner,
-v.- No. 13-1498-ag
ERIC H. HOLDER, JR., UNITED STATES ATTORNEY
GENERAL,
Respondent.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
FOR PETITIONER: JUSTIN CONLON, Hartford, CT.
FOR DEFENDANTS-APPELLEES: KEITH MCMANUS, Office of Immigration
Litigation (Song E. Park, Senior Litigation
Counsel; Matt A. Crapo, Attorney, on the brief),
for Stuart F. Delery, Assistant Attorney
General, United States Department of Justice,
Washington, D.C.
1
Petition for review of a Board of Immigration Appeals decision, entered March 25, 2013.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the petition for review is DENIED.
Jonathan Mesura, a native and citizen of Mexico, seeks review of a March 25, 2013, order of
the BIA affirming the October 23, 2012, decision of an Immigration Judge (“IJ”), finding him
removable and ineligible for cancellation of removal. In re Jonathan Mesura, No. A205 497 280 (B.I.A.
Mar. 25, 2013), aff ’g No. A205 497 280 (Immig. Ct. Hartford, Oct. 23, 2012). We assume the parties’
familiarity with the underlying facts and procedural history in this case.
In order for an alien who is not a lawful permanent resident to demonstrate eligibility for
cancellation of removal, he must show, inter alia, that he has been a person of good moral character.
8 U.S.C. § 1229b(b)(1)(B). In order to establish “good moral character,” the applicant must show
that he has not committed any of the offenses listed in 8 U.S.C. § 1101(f) which would preclude a
finding of good moral character. The enumerated offenses in that section are followed by a “catch-
all” provision, stating that “[t]he fact that any person is not within any of the foregoing classes shall
not preclude a finding that for other reasons such person is or was not of good moral character.” 8
U.S.C. § 1101(f). The agency found that Mesura had not established the requisite good moral
character pursuant to the catch-all provision.
Whether we have jurisdiction to review a determination that an applicant lacks good moral
character pursuant to the catch-all provision is an open question in our Circuit. See Sumbundu v.
Holder, 602 F.3d 47, 55 & n.6 (2d Cir. 2010). We decline to reach this issue here and instead assume
jurisdiction, see Abimbola v. Ashcroft, 378 F.3d 173, 180 (2d Cir. 2004), and conclude that substantial
evidence supports the agency’s determination that Mesura did not establish good moral character, see
8 U.S.C. § 1252(b)(4)(B); Mei Fun Wong v. Holder, 633 F.3d 64, 68 (2d Cir. 2011).
The agency did not err in its factual findings regarding Mesura’s positive equities and the
negative factors. See 8 U.S.C. § 1252(b)(4)(B). Although Mesura may disagree with the IJ’s
description of his criminal record as “serious” because the six convictions were all misdemeanors
and did not result in any actual jail time, the IJ did not mischaracterize the record, as there is no
evidence that he erroneously thought, for instance, that the convictions were felonies or resulted in
jail time. Cf. Mendez v. Holder, 566 F.3d 316, 323 (2d Cir. 2009). Mesura also argues that the IJ
overlooked some positive equities because he did not note that Mesura paid his taxes. However, the
failure to explicitly note this factor as a positive equity does not qualify as an error. See id.; Xiao Ji
Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d Cir. 2006) (“[W]e presume that an IJ has taken
into account all of the evidence before him, unless the record compellingly suggests otherwise.”).
Moreover, the IJ reasonably concluded that Mesura’s lengthy conviction record, and the seriousness
of his convictions for reckless endangerment and running from the police, outweighed his positive
2
equities, regardless of the fact that the convictions were misdemeanors and did not result in jail time.
See Castro v. Holder, 597 F.3d 93, 99 (2d Cir. 2010); Matter of T-, 1 I&N Dec. 158, 159 (BIA 1941).
While Mesura argues that the agency erred in its moral character determination because it
failed to apply precedent, prior cases regarding the catch-all moral character provision establish that
the agency should weigh the positive equities against the negative factors to determine whether the
applicant’s character is “up to the standard of the average citizen.” Matter of T-, 1 I&N Dec. at 159.
These cases do not establish a hard and fast rule of law, but instead reflect that moral character
should be determined on a case-by-case basis. See, e.g., Matter of Seda, 17 I&N Dec. 550, 554-55
(BIA 1980); Matter of Locicero, 11 I&N Dec. 805, 805 (BIA 1966); Matter of C-, 3 I&N Dec. 833 (BIA
1950); Matter of K-, 3 I&N Dec. 180, 181 (BIA 1949). Because the agency did not err in its factual
findings, and considered the relevant factors when weighing the equities, it adhered to precedent and
reasonably concluded that Mesura did not establish good moral character.
Because the agency’s determination that Mesura did not establish good moral character is
dispositive of his application for cancellation of removal, see 8 U.S.C. § 1229b(b)(1), we do not reach
Mesura’s challenge to the moral turpitude finding regarding his larceny conviction.1
For the foregoing reasons, we DENY the petition for review.
FOR THE COURT,
Catherine O’Hagan Wolfe, Clerk of Court
1 The IJ’s determination as to good moral character was not dependent on the finding that Mesura had been
convicted of a crime involving moral turpitude (“CIMT”). See Joint App’x 114–16. Accordingly, we need not consider
whether the IJ’s assessment of moral character would have changed if Mesura’s larceny conviction had been not
characterized as a CIMT.
3 | 01-03-2023 | 04-19-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/997463/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-7277
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DERRICK GREEN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Herbert N. Maletz, Senior Judge, sitting
by designation. (CR-93-180-S, CA-97-1352-HNM)
Submitted: December 17, 1998 Decided: January 7, 1999
Before WILKINS, NIEMEYER, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Derrick Green, Appellant Pro Se. Barbara Slaymaker Sale, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Derrick Green seeks to appeal the district court’s order deny-
ing his motion filed under 28 U.S.C.A. § 2255 (West 1994 & Supp.
1998). We have reviewed the record and the district court’s opin-
ion and find no reversible error. Accordingly, we deny a certif-
icate of appealability and dismiss the appeal on the reasoning of
the district court. See United States v. Green, Nos. CR-93-180-S;
CA-97-1352-HNM (D. Md. Jun. 18, 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
*
Although the district court’s order is marked as “filed” on
June 17, 1998, the district court’s records show that it was
entered on the docket sheet on June 18, 1998. Pursuant to Rules 58
and 79(a) of the Federal Rules of Civil Procedure, it is the date
that the order was entered on the docket sheet that we take as the
effective date of the district court’s decision. See Wilson v.
Murray, 806 F.2d 1232, 1234-35 (4th Cir. 1986).
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2980748/ | Order filed February 26, 2015
In The
Fourteenth Court of Appeals
____________
NO. 14-14-00870-CV
____________
LOWELL MALCOLM MCCOY, Appellant
V.
KARON K. ELS, Appellee
On Appeal from the 300th District Court
Brazoria County, Texas
Trial Court Cause No. 75438-F
ORDER
Appellant’s brief was due February 17, 2015. No brief or motion for
extension of time has been filed.
Unless appellant files a brief with this court on or before March 30, 2015,
the court will dismiss the appeal for want of prosecution. See Tex. R. App. P.
42.3(b).
PER CURIAM | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/4539924/ | 06/08/2020
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 20-0091
No. DA 20-0091
STATE OF MONTANA,
Plaintiff and Appellee,
v.
MARY DARLEAN WRIGHT,
Defendant and Appellant.
ORDER
Upon consideration of Appellant’s motion for extension of time, and
good cause appearing,
IT IS HEREBY ORDERED that Appellant is granted an extension
of time to and including July 15, 2020, within which to prepare, file,
and serve Appellant’s opening brief on appeal.
Electronically signed by:
Mike McGrath
Chief Justice, Montana Supreme Court
June 8 2020 | 01-03-2023 | 06-08-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3811980/ | This case is in all things identical with Ex parte Hudson
(case No. A-411, decided at this term of court, ante, p. 393,107 P. 735, and the decision in that case settles all questions raised in this.
The petition for rehearing is denied.
FURMAN, PRESIDING JUDGE, concurs, DOYLE, JUDGE, dissents. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/128150/ | 538 U.S. 921
MARYLANDv.PRINGLE.
No. 02-809.
Supreme Court of United States.
March 24, 2003.
1
CERTIORARI TO THE COURT OF APPEALS OF MARYLAND.
2
Ct. App. Md. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari granted. Reported below: 370 Md. 525, 805 A. 2d 1016. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/997483/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-7108
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CLAYTON PERRY CROWE,
Defendant - Appellant.
Appeal from the United States District Court for the Western Dis-
trict of North Carolina, at Bryson City. Lacy H. Thornburg, Dis-
trict Judge. (CR-94-32, CA-98-103-2)
Submitted: December 17, 1998 Decided: January 6, 1999
Before WILKINS, NIEMEYER, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Clayton Perry Crowe, Appellant Pro Se. Deborah Ann Ausburn, Assis-
tant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Clayton Perry Crowe 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 and find no reversible error. Accordingly, we deny a cer-
tificate of appealability and dismiss the appeal on the reasoning
of the district court. See United States v. Crowe, Nos. CR-94-32;
CA-98-103-2 (W.D.N.C. July 1, 1998).* We dispense with oral argu-
ment because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
DISMISSED
*
Although the district court’s order is marked as “filed” on
June 30, 1998, the district court’s records show that it was
entered on the docket sheet on July 1, 1998. Pursuant to Rules 58
and 79(a) of the Federal Rules of Civil Procedure, it is the date
that the order was entered on the docket sheet that we take as the
effective date of the district court’s decision. See Wilson v.
Murray, 806 F.2d 1232, 1234-35 (4th Cir. 1986).
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3444824/ | Affirming.
The appeal is from a $1,192.60 judgment for personal injuries resulting from an automobile collision.
At about 1 a. m., January 29, 1934, Elmer Schweinefus was driving Miss Brewsaugh from Latonia, where they had spent the evening, to her home at 1621 Holman street, Covington. Schweinefus had difficulty in operating his car. It stalled several times and would not pull the hill oil Madison avenue between Seventeenth and Eighteenth streets. According to Miss Brewsaugh and Schweinefus, when the car failed to climb the hill he turned his car east into Seventeenth street at or near the bottom of the underpass to take the car out on Seventeenth street. After the car had gotten over into Seventeenth street beyond the east curb line of Madison the car stopped, and after being there about 30 seconds a taxi driven by Walter Elliott struck his car and injured Miss Brewsaugh. There was *Page 434
further evidence that Elliott was on the wrong side of the street, was driving at a high rate of speed, and that the entire street in back of Schweinefus' car was clear. It was also shown that the glass and wreckage were found on the east or left-hand side of the street in the direction in which the taxicab was going, and also on the sidewalk. On the other hand, Elliott, the driver of, the taxicab, testified that the Schweinefus car was parked on the west curb of Madison as he came under the viaduct. On reaching a point a short distance from the Schweinefus car, that car pulled to the left as if to make a U turn, or a turn into Seventeenth street. He applied his brakes and did everything possible to avoid the accident, but Schweinefus did not stop, and he struck the Schweinefus car in the middle section and wrecked both cars.
It is argued that Elliott's account of the accident is the more plausible, but it is at once apparent that the conflict in the evidence made a question for the jury, and it cannot be said that the verdict is flagrantly against the evidence.
Perhaps the principal ground urged for a reversal is that the court erred in refusing an offered instruction submitting the question of contributory negligence on the part of plaintiff in riding in a disabled automobile. It is true that a guest must exercise ordinary care for his own safety, and where he fails to observe an obvious danger or to warn the driver thereof, he may be guilty of contributory negligence. Stephenson's Adm'x v. Sharp's Ex'rs, 222 Ky. 496, 1 S.W.2d 957. A case might arise where the accident was due to the disabled condition of the car, and that condition was known to the guest, but here the accident was not due to the fact that the brakes were defective, or that the car would not pull the hill. Not only so, but the probability of danger from the stalling of the car, or its failure to pull the hill, was not so great as to impose upon appellee the duty of leaving the car at 1 o'clock on a very cold morning and walking to her home. We therefore conclude that the court did not err in refusing the offered instruction.
It is also claimed that the court erred in refusing an offered instruction authorizing the submission to the jury of the question, whether Schweinefus was appellee's agent in driving her home. The basis of this contention *Page 435
is that appellee testified that Schweinefus was merely taking her home, and that was the sole purpose of the trip. A girl's escort, or beau, who drives her to or from an entertainment, may be inclined to obey her every whim, but he is not her agent or servant in the legal sense that she has the right to command and he the duty to obey. Her relation is simply that of an invited guest, and the driver's negligence is not imputable to her, even though taking her home may be the sole purpose of the trip.
Another contention is that there was no evidence that at the time of the accident Walter Elliott, the driver of the taxicab, was engaged in the business of John R. Hinternisch. Proof that the defendant owned the car, and that it was being driven by his employee at the time of the accident, is of itself sufficient to create the presumption that the driver was acting within the scope of his employment, Ashland Coca Cola Bottling Co. v. Ellison, 252 Ky. 172, 66 S.W.2d 52, and where, as here, that character of proof was supplemented by the evidence of the driver of the taxicab that he was answering a call, it is at once apparent that there is no merit in appellant's contention.
Lastly, it is insisted that the verdict is excessive. The evidence discloses that appellee's clavicle was broken, and she received other bruises. She was in the hospital for nine days, and it was six weeks before she was able to go back to work. Though the broken clavicle has healed, it has left a deformity which can only be relieved by an operation which of itself would leave a sear. A mere recital of the facts is sufficient to show that the Verdict is not unreasonable.
Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3444825/ | Affirming.
On September 30, 1926, the appellant, Smith-Hager Ice Company, addressed a letter to the appellee, Robert Reid, which is as follows:
"This is to verify your conversation with Mr. Smith regarding storage room:
"We rent you our east storage room for apples from now to March 1st, 1927, for the sum of $425.00.
"Kindly acknowledge receipt of this and oblige."
On October 2, 1926, appellee replied as follows: "I will take your east storage room, for apples, from now to March 1st, 1927, for the sum of $425.00."
After the making of this contract, appellee stored in the room mentioned 1,034 barrels of apples during the month of October. They remained there until February 1927, when they were sold. At the time they were removed it was discovered that they had become impregnated with some substance which gave them an objectionable odor and taste. Later is was determined that this substance was creosote which had been used in constructing the storage room. The storage room was built a year or two before the contract was made, and creosote was used on the lumber that went into the room. That the apples were damaged by reason of this peculiar odor and taste is not seriously denied. The appellee in his petition alleged that the damages amounted to $3,619, but the jury in its verdict agreed with him only to the extent of finding that his damages were $789.50.
The chief contention made by counsel for appellant is that the contract created only the relation of landlord and tenant between the parties and that the laws applicable *Page 491
to warehousemen do not govern this case. It is true that the contract contains the necessary elements of a contract between a landlord and tenant, but the proof shows that appellant prepared this room particularly for storage purposes. It knew that appellee desired to use the room which he rented to store his apples, and that fact is mentioned in the letter addressed to appellee by appellant as well as the reply thereto. We cannot agree that the law governing contracts between landlord and tenant governs this case. It is true that the landlord is not liable for injuries upon the ground of negligence alone. He is liable only where he has been guilty of deceit in some form either active or by concealment. Thomasson v. Hiatt, 174 Ky. 293,192 S.W. 19. But this contract created the relationship of bailor and bailee, and in such cases it is the general rule that the burden of proof is on the bailor to show that the loss or injury to goods was due to the negligence or other fault of the bailee. It is sufficient, though, if he proves facts from which such negligence or fault may be inferred so as to make a prima facie case. If it is shown that the goods were delivered to the bailee in good condition, he will be liable for any loss or injury to them while in his custody, unless he affirmatively establishes that such loss or injury was not due to his failure to exercise due care. 40 Cyc. 470. It was held in the case of Smith v. Diamond Ice Storage Co., 65 Wn.-576, 118 P. 646, 38 L.R.A. (N.S.) 994, that where a cold storage company or warehouseman receives perishable property for preservation, it is to be regarded as bailee for hire and obligated with the duty of using ordinary care in the protection and care of the property intrusted to it. A case somewhat similar to the one before us was that of Henderson Mining Mfg. Co. et al. v. Cimini, 185 Ky. 85, 213 S.W. 923. That was a case where apples had been delivered to a warehouse under a state of facts somewhat similar to those before us, and when they were removed it was discovered that they were almost worthless. Suit was instituted against the bailee, and a judgment recovered for the amount of damages shown by the evidence. In that case it was shown that the apples were sound and properly packed when delivered in storage, and that the temperature in the cold storage plant was not kept uniform. The evidence was conflicting on the question of proper care on the part of the bailee, and the court held that it was a question for the jury. We think the evidence in this case was sufficient to justify its submission *Page 492
to the jury on the question as to whether the storage room was properly constructed and was suitable for the purpose for which it was rented. We must therefore hold that appellant was not entitled to a peremptory instruction. This disposes of its chief contention. It urges as another ground for reversal that appellee examined the room where his apples were to be placed, and that he in the exercise of ordinary care should have discovered the unfit condition of the room which caused the injury, and that for this reason he ought not to be allowed to recover. He testified that he did not discover it, and the evidence was conflicting on this point. The instructions covered every point which could be raised by the pleadings and appear to have fully protected every right which appellant could have in this case. The jury was liberal towards appellant, and we find no error in the record.
Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/128164/ | 538 U.S. 922
PARKMANv.UNIVERSITY OF SOUTH CAROLINA ET AL.
No. 02-786.
Supreme Court of United States.
March 24, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT.
2
C. A. 4th Cir. Certiorari denied. Reported below: 44 Fed. Appx. 606. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/2986826/ | Order filed May 21, 2013
In The
Fourteenth Court of Appeals
NO. 14-12-00553-CR
JARED LEVI COLEMAN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 23rd District Court
Brazoria County, Texas
Trial Court Cause No. 66104
ORDER
This court has determined, pursuant to Texas Rule of Appellate Procedure 34.5(f) and
34.6(g)(2), that it must inspect the original of State's Exhibits #2 CD, #3 CD, #4 CD, #7
CD, #18 CD, #22 CD, # 25 CD and # 26 CD
The clerk of the 23rd District Court is directed to deliver to the Clerk of this court the
original of State's Exhibits #2, #3, #4, #7, # 18, #22 #25 and #26, on or before May 31, 2012.
The Clerk of this court is directed to receive, maintain, and keep safe this original exhibit; to
deliver it to the justices of this court for their inspection; and, upon completion of inspection, to
return the original of State's Exhibits #2, #3 #4, #7, #18, #22, #25, and #26, to the clerk of the
23rd District Court.
PER CURIAM | 01-03-2023 | 09-23-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2799398/ | Filed 5/7/15 P. v. Asturias CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A137391
v.
RICARDO A. ASTURIAS, (San Francisco City and County
Super. Ct. No. 215883)
Defendant and Appellant.
Appellant Ricardo A. Asturias was convicted, following a jury trial, of continuous
sexual abuse of a child and possession of child pornography. On appeal, he contends (1)
the trial court erred and violated his constitutional right to a public trial when it closed the
courtroom during the testimony of the minor victim’s parents; (2) the trial court abused
its discretion and violated appellant’s due process rights when it admitted evidence of
prior uncharged sexual offenses; and (3) the award of $625,000 in noneconomic
restitution was not authorized by law, violated his due process rights, and constituted an
abuse of discretion; he further claims that the restitution awards for both economic and
noneconomic damages violated his right to a jury trial. We shall affirm the judgment.
PROCEDURAL BACKGROUND
Appellant was charged by amended information with one count of continuous
sexual abuse of a child under the age of 14 (Pen. Code, § 288.5, subd. (a)—count 1);1 two
counts of lewd acts on a child under the age of 14 (§ 288, subd. (a)—counts 2 & 3); and
one count of possession of child pornography (§ 311.11, subd. (a)—count 4).
1
All further statutory references are to the Penal Code unless otherwise indicated.
1
Following a jury trial, appellant was convicted of continuous sexual abuse of a
child under the age of 14 and possession of child pornography.
On December 14, 2012, the trial court sentenced appellant to a total term of 16
years, eight months in prison. The court also awarded the victim $5,875 in economic
restitution and $625,000 in noneconomic restitution.
Also on December 14, 2012, appellant filed a notice of appeal.
FACTUAL BACKGROUND
Prosecution Case
At the time of trial, “Jane Doe,” who was born in 2004, was eight years old and in
the third grade. She lived with her parents and her 13-year-old brother Her mother,
“Mrs. Doe,” testified that appellant is the first cousin of Jane’s father, and the children
called him Uncle Al. Appellant was a constant presence in the lives of the Doe children;
they often saw him on a weekly basis for weekend dinners at the Doe house, at family
events, and on vacations. In addition to other vacation trips, appellant frequently traveled
with the Doe family to Jane’s uncle’s vacation home in Sonoma County, which the
family called “the ranch.” When he visited the Doe home, appellant sometimes went
upstairs with Jane to her room, to see her artwork or play a game. They would be there
alone for five to twenty minutes. Jane’s parents trusted appellant “completely.” Jane felt
like appellant was her uncle and she loved him very much. Appellant lived in an
apartment about five blocks from the Doe home.
On October 1, 2010, after appellant had volunteered to babysit for Jane and her
brother while their parents went out to dinner to celebrate their birthdays, Mrs. Doe
mentioned his offer to her husband in front of Jane, who was sitting nearby. The next
night, October 2, Jane, who was then six years old and in first grade, told her mother, “I
want Uncle Al to visit, but I don’t want him to babysit.” When Mrs. Doe asked her why
not, Jane asked, “Can I tell you a secret?” She then told Mrs. Doe that appellant “tickles
my privates and I don’t like it.” Mrs. Doe was “completely stunned.” She asked follow-
up questions, and Jane told her it happened “[e]very time he goes to my room.” Jane
seemed hesitant and uncomfortable about “telling on” appellant. She also seemed shy
2
and embarrassed. Mrs. Doe assured her that appellant would not be babysitting, and then
dropped the subject until she had a chance to talk to her husband, who was working a 24-
hour shift as a firefighter.
On October 4, 2010, Mrs. and Mr. Doe, who were still “in disbelief,” asked Jane
some questions about what appellant had done. Jane told them that appellant had touched
her privates under her underwear and had put his finger inside her. She said the touching
had happened in her room and also at the ranch, the vacation home in Sonoma. Mr. and
Mrs. Doe waited a couple of days to report what Jane had told them because Mr. Doe was
initially extremely upset and in a state of disbelief. They spoke first with an attorney
friend, who explained that, if they reported the molestation, it did not mean Jane would
be taken away from them. Mr. and Mrs. Doe then met with a social worker who helped
them to make a report to Child Protective Services. In mid-October, Jane was
interviewed at CASARC (Child and Adolescent Support Advocacy and Resource Center)
at San Francisco General Hospital. Jane also had a medical examination.
Mrs. Doe recalled that, on one occasion a short time before the disclosure, Jane
did not want to hug appellant goodbye, which was unusual for her. Since the disclosure,
they had talked about appellant on occasion. Jane had “wanted to make sure that
[appellant] wouldn’t be coming to the house, that she wouldn’t see him.” Mrs. Doe and
Jane’s therapist had also talked to Jane about the fact that she would need to testify in this
case. Jane was nervous about this; she did not want to testify.
Jane Doe’s father, “Mr. Doe,” testified that appellant was like a brother to him.
The Does and their extended family included appellant in all family gatherings and
vacations, including visits to the ranch in Sonoma. Appellant also came to dinner at the
Doe home almost weekly for many years. When he was at their house, appellant would
often go upstairs with Jane to read a book or look at her artwork. When they were at the
ranch, appellant and Jane also spent time alone together in the living room, watching
movies on a laptop. Even when there were numerous children at the ranch, appellant
paid particular attention to Jane.
3
On October 2, 2010, after his wife called him at work to let him know that Jane
had told her about the molestation, Mr. Doe was “in a complete state of shock.” The next
afternoon, Jane told Mr. Doe that appellant was touching her in her private parts, under
her clothes. She said it always happened when they were alone, either upstairs in the
bedroom or at the ranch. Jane, who was six and in first grade at the time, said it had
started when she was in pre-kindergarten. The following day, Mr. and Mrs. Doe spoke
again with Jane, using a doll for Jane to show them where appellant had touched her. She
pointed to the doll’s vagina area and said that appellant had used his fingers to touch her
there, under her underwear, and that he touched her “inside.”
The Does then took Jane to a social worker, to make sure that the reporting of the
molestation “was done in the most protective, calming way so that [Jane] was taken care
of.” The social worker called Child Protective Services and, at some point, the Does
were interviewed by police officers. After they reported the molestation, Jane would
periodically get scared and ask about what was going to happen and if she would have to
see appellant again.
Before Jane’s disclosure, Mr. Doe never had any reason to suspect that appellant
was molesting her. At some point after the disclosure, Mr. Doe’s cousin Tony told him
that appellant had emailed him photographs of little girls, and Tony had told him to stop.
Mr. Doe also remembered that a week or two before the disclosure, appellant had been at
the Doe house for dinner and had spent time upstairs with Jane. When he left, Jane
refused to hug him goodbye, which she had never done before.
Eight-year-old Jane Doe testified that appellant made her both happy and sad
when she was in pre-kindergarten and kindergarten, and made her feel bad when she was
in first grade. They would have “tickle fights” in Jane’s room, and would tickle each
other. Appellant tickled her in good spots, like her stomach, armpit, and knee. But he
also tickled her in bad spots, like her foot and her vagina or private parts. Appellant
would be kneeling and she would be lying on the bed when he tickled her. When he
tickled her private parts, he did it both over and under her clothes. When he went under
her clothes, he sometimes tickled her over and sometimes under her underwear. He used
4
one finger to tickle Jane under her underwear, on the outside of her private parts. It hurt
when he tickled her there.
When Jane was in pre-kindergarten, appellant touched her private parts under her
underwear more than five and less than ten times, over her underwear but under her
clothes more than five and less than ten times, and over her clothes more than five and
less than ten times. When she was in kindergarten, it also happened more than five and
less than ten times each under her underwear, over her underwear, and over her clothes.
She did not remember it happening when she was in first grade. Appellant told Jane that
his tickling her vagina was “ ‘a secret and you can’t tell.’ ” Jane was afraid to tell him
she did not like him touching her private parts.
While Jane was in pre-kindergarten, in addition to the touching in her bedroom,
appellant touched her private parts over her clothes about five times while they were
sitting on the couch at the ranch in Sonoma, watching a movie. This made Jane feel bad.
The only other time appellant tried to touch Jane’s private parts besides at her house or
the ranch was one time at a Special Friends Day at her preschool. She was sitting on his
lap and his hand was on her thigh, moving closer to her private parts. She tried to push
his hand away because there were a lot of other people there and she did not like it when
he did that.
Jane remembered telling her parents that appellant was touching her private parts.
She did not want him to babysit because she was afraid he would touch her private parts.
The last time he was at her house, before she told her parents, appellant had touched her
private parts over her clothes.
Isabel K. is appellant’s adult daughter. She grew up in El Salvador and had
moved to the United States in 1992. Isabel, who was born in 1970, testified that she had
not had a relationship with appellant for over 20 years. Isabel has an older sister,
Victoria A., who was born in 1967, and an older brother, Diego, who was born in 1969.
She also has a stepbrother, Sebastian, who was appellant’s son from a subsequent
marriage; he was born in 1977 or 1978. Appellant and Isabel’s mother divorced when
5
Isabel was five years old, in about 1975. She and her siblings continued to visit appellant
after the divorce, usually on the weekends.
Isabel learned about appellant’s criminal case from Sebastian. She did not know
the Doe family, but she contacted Jane Doe’s father and told him she was willing to
testify in the case. She then contacted the district attorney’s office. She reached out to
Mr. Doe and the district attorney’s office because she “believed that this has gone long—
too long [sic] and it needs to stop.”
Appellant began sexually abusing Isabel after her parents’ divorce, when she was
between the ages of six and eight. During his Saturday visits, he would take her and her
siblings to a swim club. Her first memory of the abuse was from one day when he was
sitting in a chair at the club, and he grabbed her and made her sit on his lap. He held her
in place and “was kind of moving me back and forth on his privates.” Appellant was
wearing a Speedo and Isabel was in a swimsuit. He had an erection.
Another time, Isabel was alone with appellant at a coffee farm he owned. It was
very hot outside and appellant said they should swim naked in the river. In the river, he
pulled her toward him and touched her vulva with his erect penis, though his penis never
penetrated her vagina. While touching her, he looked at her with a “smirk,” as “if it was
the most natural thing in the world.” After these incidents, Isabel continued to spend
time with appellant because she was a little girl and, even though she did not like what he
was doing, he was her father and she loved him.
On another occasion, when appellant was living at his aunt’s house while she was
away, he put Isabel in a walk-in closet that contained a tripod and video camera. Her
brother came into the closet and said, “Huh, would you believe my dad wants me to fuck
you?” They laughed and then just sat there until appellant let them out. Another day,
Isabel was with appellant at his aunt’s house. They were lying on his aunt’s bed and
appellant, who was fully dressed, was rubbing her leg. He then started to touch her
vulva, on top of her underwear. She said “No” twice and pushed him away. He slapped
her on the leg and said, “You’re acting just like your sister Victoria.” Isabel, who could
hear her brothers playing in the shower in a nearby bathroom, said she wanted to go
6
shower with her brothers. Appellant made the boys get out of the shower, and he got in
with Isabel. After her brothers left the bathroom, appellant soaped up his hand and
started touching her vulva to the point that it hurt. He then said it was her turn to wash
him, and handed her the soap. She did not recall whether she did what he asked. That
night, appellant said the children had to take a pill so they would not get dengue when
they visited the coffee farm the next day. They took the pills and Isabel recalled waking
up in the middle of the night completely naked. She was in bed with appellant and her
two brothers.
At some point, Isabel’s sister Victoria asked if their father touched her in places
she did not like. When Isabel said yes, Victoria took her and her brother to tell their
mother what had been happening. Isabel saw appellant one more time after that, in
approximately 1978, when he was about to move to the United States and he stopped by
to say goodbye to Isabel and her siblings. She did not see him again after that until she
came to court to testify in the present case. She was testifying “[b]ecause he needs to be
stopped.”
Victoria, appellant’s other adult daughter, testified that she had lived all her life in
El Salvador, and had not seen appellant since he left El Salvador in approximately 1980.
Appellant had called her two or three times since 1980; the last time was in 2000. He
also sent her an email every year on her birthday, but she never responded. Victoria, who
was born in 1967, was the oldest of her siblings. She had a brother, Diego; a sister,
Isabel; and a half brother, Sebastian. Victoria had learned about the criminal case against
appellant from Sebastian.
Appellant began sexually abusing Victoria when she was four or five years old.
The abuse stopped when she was about 12 or 13, after she told her mother about it.
Before her parents divorced, in 1976 or 1977, appellant would take her into his bedroom
when no one else was around, take off her clothes, and touch her vagina and masturbate
her. Appellant would also be naked and would have an erection, and would fondle her
with his finger and his penis. This occurred many times throughout the years. He always
touched her in basically the same way, masturbating her. He also caressed her breasts.
7
After Victoria’s parents divorced, when she was about nine, appellant abused her
at other locations, such as at a coffee farm he owned. He would take the children there
for the weekends. He would have them take off their clothes and swim in the pond. She
recalled appellant fondling her vagina with his hand while sitting under a tree at the farm.
After the divorce, appellant lived in a small house, where he molested Victoria many
times in his bedroom. Later, appellant remarried and moved with his wife to an
apartment. He continued to abuse Victoria there, fondling her vagina after getting her
away from her brother and sister. Appellant also took Polaroid photographs of Victoria
when she was naked. He told her to pose on the bed by lying on her belly and putting her
butt up or lying on her back with her legs open. She was between eight and ten years old
when he took the pictures.
The abuse never occurred around any adults or in front of Victoria’s siblings. At
some point, Victoria started telling appellant that she did not like what he was doing and
that she wanted him to stop. In response, he told her that he loved her and the sexual acts
were a way of demonstrating that love. He once showed her a book to try to prove that it
was normal for an adult to demonstrate his love for a child in that way.
When Victoria was 11 or 12 years old, she asked her sister and brother whether
appellant had ever touched their private parts. After they both told her he had done so,
Victoria took them to her mother and told her that appellant had been molesting them and
that they did not want to see him anymore. As a result, they stopped visiting appellant.
Victoria did not tell her mother about the abuse sooner because she was scared. Once,
when she had told appellant that she was going to tell her mother, he said that nobody
would believe her, which intimidated her. Victoria was testifying because she “wanted to
help to put a stop to what he has been doing all throughout his life.”
Albert “Tony” B. testified that both appellant and Mr. Doe are his first cousins.
He knew appellant as a child in El Salvador and they reconnected in the United States
when Tony was an adult. They became close, talked on the phone regularly, emailed
each other, and saw each other at family functions.
8
In approximately 2005, appellant occasionally sent Tony emails that had an
attachment containing one or more candid photographs of a pre-pubescent girl who was
naked. Appellant sent such emails five or six times, with photographs of a different girl
attached to each email. Initially, Tony deleted the emails after opening them. He was
concerned that the emails contained child pornography, but did not contact the authorities
because he loved appellant, who was family. Tony believed appellant had a penchant for
little girls. Sometime after 2001, he had talked to appellant about sexual interest in
children being wrong, and appellant had responded that this country has puritanical views
about children. Appellant said that in other countries it is “perfectly legal” to be with a
young girl. Appellant once told Tony that he had many firewalls on his computer
because he could “[g]o to jail” for the things that were on it. In 2010, Tony learned from
Mr. Doe that appellant had molested Jane and spoke with a police officer who was
investigating the case.
San Francisco Police Inspector Alexis Goldner testified that she had investigated
this case and obtained a search warrant for appellant’s home because she believed she
would likely find child pornography on his computers. Goldner executed the search
warrant on October 19, 2010, at appellant’s residence in San Francisco. Officers seized a
laptop computer, a desktop computer, two thumb drives, and a floppy disk. During a
forensic examination of appellant’s computers and related equipment, officers found over
900 pornographic images of young, underage girls from a site called Ukraine Angels on
appellant’s hardrive. The girls appeared to be under the age of 12, and were in
provocative poses, with some lying down, some leaning over, and some with their
buttocks in the air.2
Gloria Samayou, a licensed clinical social worker, testified that she worked for the
San Francisco District Attorney’s office, but was stationed at the Child Adolescent
2
The parties stipulated that Dr. Tonya Chaffee, a board-certified pediatrician and
adolescent medicine doctor who was the medical director of CASARC and a professor at
the University of California, San Francisco, had examined the photographs and
concluded that the girls depicted in them were between the ages of six and twelve.
9
Support Advocacy Resource Center (CASARC) at San Francisco General Hospital.
CASARC is comprised of a forensic team that works with children who have experienced
trauma. The team provides medical examinations, forensic interviews, and therapy.
Samayou, who was the multidisciplinary interview coordinator at CASARC, interviewed
Jane Doe on October 15, 2010. The videotaped interview was shown to the jury.
At the time of the interview, Jane was six years old and in the first grade. She said
that she and her Uncle Al did “tickle fights.” He sometimes tickled her in “okay” spots,
but sometimes tickled her in “the not okay spots,” such as the bottom of her foot, her
armpit, her knees, or her stomach. Appellant and Jane also played Monopoly and read
Dr. Seuss books together.
After some hesitation, Jane told Samayou that appellant sometimes tickled her in a
spot she did not like. She was not sure if she should say what spot she was talking about.
Jane felt “shy” about it, but agreed to write it down. Jane then said that appellant tickled
her “in the private part and I don’t like it there.” She explained that appellant tickled her
private parts, where she goes to the bathroom, with his finger. He sometimes tickled her
over clothes and “the clothes wiggle because we’re moving so much.” Jane pointed to
the vagina in a picture of a girl doll and said that was where appellant tickled her.
Appellant sometimes tickled Jane under her clothes by unsnapping her pants and
putting his finger under her underwear. He would then tickle her in the middle of her
vagina, “[s]ort of, just a little bit” inside. It did not feel good when he did this; it felt
“weird” and hurt a little bit. This happened “[a] lot more” than once. He would tickle
her vagina when they were alone in her room. He did it every time they saw each other,
including the last time she saw him. She would be lying on her bed and he would be
standing or kneeling when he tickled her. Appellant also touched Jane at the ranch while
they were alone, watching movies on a laptop. He started touching her vagina when she
was about four.
Jane never said anything to appellant when he touched her vagina because she did
not want to hurt his feelings. She explained, “he’s my uncle and I still like him even
10
when he does that.” Jane told her parents about what he had done because she “thought
maybe they would tell Uncle Al to stop.”
Susan Houser, a pediatric nurse practitioner who worked at CASARC, testified
about a forensic examination she performed on Jane Doe on October 20, 2010. Jane had
a small notch to her hymen, which was a normal finding in both children who had been
sexually abused and those who had not. Hence, it could neither confirm nor negate
sexual abuse. Houser understood that the last incident of vaginal touching had occurred
two weeks before the examination. Digital penetration can cause minor scratch marks
and even some tearing to the hymenal tissues. The tissue, however, heals very quickly
and scarring is uncommon.
Psychologist Anthony Urquiza, a professor and the director of a child abuse
treatment program in the Department of Pediatrics at the University of California at
Davis Medical Center, testified as an expert in child abuse accommodation syndrome.
Dr. Urquiza testified that there are many misperceptions about child sexual abuse, and
described child sexual abuse accommodation syndrome, which explains some of the
common behaviors and experiences of children who have been sexually abused. He also
explained the five components of child sexual abuse accommodation syndrome, which
include secrecy, helplessness, entrapment and accommodation, delayed and unconvincing
disclosure, and retraction or recantation.
Defense Case
Mrs. Doe identified various photographs and described the layout of the ranch in
Sonoma.
DISCUSSION
I. Closure of the Courtroom During the Testimony of Jane Doe’s Parents
Appellant contends the trial court erred when it closed the courtroom during the
testimony of Jane Doe’s parents, violating his constitutional right to a public trial.
A. Trial Court Background
Before trial, the prosecution moved to close the trial to the general public during
the testimony of Jane and her parents pursuant to section 859.1, which permits closure of
11
a courtroom in certain circumstances during “the testimony of, and testimony relating to,
a minor . . . in order to protect the minor’s . . . reputation.” (§ 859.1, subd. (a).) In the
alternative, the prosecution requested that the courtroom be closed for these witnesses’
testimony pursuant to factors set forth by the United States Supreme Court in Waller v.
Georgia (1984) 467 U.S. 39, 48 (Waller).
During a subsequent hearing on the motion, defense counsel stated that he had no
objection to the request to close the courtroom during Jane’s testimony. Counsel did,
however, object to closure of the courtroom during Jane’s parents’ testimony. Counsel
argued “that the statute and the case law has not been satisfied” given that “the court
needs an abundance of factors to close the courtroom. I think it’s clear with Jane Doe
that the privacy rights of a minor victim is absolutely overriding, but I don’t think there’s
sufficient information to close the courtroom for adult witnesses, albeit attorneys or
members of the bench or any other professionals. So I just don’t think the court has a
sufficient basis at this point to close the courtroom for the parents.”
The prosecutor responded that the testimony of Jane’s parents was clearly “going
to be relating to their daughter,” pursuant to section 859.1, and that there were “some
unique circumstances, given the professions of the parents in this case, that they do
practice [law] in San Francisco. The courthouse does contain many of their colleagues
and acquaintances, some who should be excluded from the proceedings. . . . [P]art of the
livelihood of them . . . depends on their reputation and that, you know, it can be tainted
from this getting out into the public. So I mean, it goes towards both Jane Doe’s
reputation as well as her parents’ reputation in this case. [¶] . . . [¶] But the main thing is
to ensure and to protect the privacy of Jane Doe[,] the victim in this matter, and . . . since
we know that the parents are going to be testifying in regards to acts upon her, that her
privacy is most fully protected by closing the courtroom during that time.” The
prosecutor also stated, however, that the prosecution was open to appellant having a
support person present in the courtroom during the Does’ testimony.
The trial court observed that section 859.1 is applicable to, not only a minor’s
testimony, but also to “anybody that might be testifying about the minor, which goes to
12
protection of—which would relate to issues that require the protection of her, quote,
reputation and confidentiality.
“And given that both of her parents practice regularly in this court, anybody
coming in . . . could look in and see them and it might not mean anything. They may be
here to testify for any number of reasons. But someone sitting in the courtroom is going
to know very clearly that they are talking about their daughter, who’s a minor, and with
regard to the specific charges. And that, I think, does—in essence, that would undermine
closing the courtroom for the minor’s testimony because . . . they, too, are going to be
testifying about the same events and, primarily, depending on how I rule on other
motions, possibly what she has told them about those events. So in essence, almost the
same thing as the testimony itself.
“So I do feel very strongly that certainly, these are open hearings, but I do think
that with regard to Mr. and Mrs. [Doe], because their testimony does relate specifically to
[Jane] and what’s going on with [Jane] vis-à-vis this case, that I’m going to find that
there is good cause to grant the People’s motion pursuant to [section] 859.1 with regard
to both [Jane’s] testimony and her parents’ testimony. [¶] . . . [¶]
“And I would add to that[,] knowing the culture of the Hall of Justice, any lawyer
who might come in and peek in and see a defense lawyer or prosecutor sitting on the
stand is going to be compelled to come in through those doors to hear what they have to
say. And so while we may not intend to attract that kind of attention, it may. And before
you know it, we may have quite a sizable crowd in here. And I just think that that would
completely undermine any efforts we make in closing the courtroom as to [Jane]
personally.”
Immediately after opening statements and just before Mrs. Doe testified, the trial
court stated: “I noticed that there are people out in the audience and, as a general rule,
these cases are open to the public. However, for certain purposes the law does provide
that I can make an exclusion order for certain people’s testimony. I have made that order
with regard to three of the witnesses in this case, one of whom is about to testify, so I’m
going to have to ask everyone in the audience to please leave the courtroom. Thank
13
you.” The following morning, just before Mr. Doe testified, the trial court said: “And as
I recall, I did make a ruling that when family members were present, only court
personnel, attorneys, assistants could be present in the courtroom. I know the three
people in the gallery are interns for the various parties, so I’d ask that we put a sign out to
make sure that we don’t have anyone coming in.” After Mr. Doe’s testimony, the court
stated : “So per the court’s exclusion order, the basis for exclusion is now finished so we
can take the sign off and the courtroom is reopened for the record.”
B. Legal Analysis
1. The Public Trial Right and Exceptions to That Right
The United States Supreme Court has upheld the right to a public trial pursuant to
“two different provisions of the Bill of Rights, both applicable to the States via the Due
Process Clause of the Fourteenth Amendment. The Sixth Amendment directs, in relevant
part, that ‘[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial. . . .’ The Sixth Amendment right, as the quoted language makes explicit, is
the right of the accused.” (Presley v. Georgia (2010) 558 U.S. 209, 211-212 (Presley);
accord People v. Woodward (1992) 4 Cal.4th 376, 382 (Woodward), citing U.S. Const.,
amends. VI, XIV; Cal. Const., art. I, § 15; Pen. Code, § 686, subd. 1.)3
Although the United States Supreme Court “has further held that the public trial
right extends beyond the accused and can be invoked under the First Amendment”
(Presley, supra, 558 U.S. at p. 212), appellant’s claim rests on his Sixth Amendment right
to a public trial.
“ ‘ “ ‘The requirement of a public trial is for the benefit of the accused; that the
public may see he is fairly dealt with and not unjustly condemned, and that the presence
of interested spectators may keep his triers keenly alive to a sense of their responsibility
and to the importance of their functions. . . .’ ” ’ [Citations.] [¶] In addition to ensuring
that judge and prosecutor carry out their duties responsibly, a public trial encourages
3
Our Supreme Court has observed that “a defendant’s state constitutional public
trial right appears to be coextensive with the federal guarantee . . . .” (Woodward, supra,
4 Cal.4th at p. 381, citing People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 525-526.)
14
witnesses to come forward and discourages perjury. [Citations.]” (Waller, supra, 467
U.S. at p. 46, fn. omitted.)
When a defendant’s public trial right is violated, the error is structural. (See
Waller, supra, 467 U.S. at pp. 49-50 [agreeing with view that “the defendant should not
be required to prove specific prejudice in order to obtain relief for a violation of the
public-trial guarantee”]; People v. Baldwin (2006) 142 Cal.App.4th 1416, 1424
(Baldwin); compare Woodward, supra, 4 Cal.4th at p. 385 [court’s error, in temporarily
barring new spectators from attending prosecutor’s closing arguments, did not violate
public trial right and, therefore, reversal was not required.)
The Supreme Court has recognized, however, that in certain situations the public
trial right can give way to other important interests that would otherwise be prejudiced.
“[T]he right to an open trial may give way in certain cases to other rights or interests,
such as the defendant’s right to a fair trial or the government’s interest in inhibiting
disclosure of sensitive information. Such circumstances will be rare, however, and the
balance of interests must be struck with special care. . . . [¶] ‘The presumption of
openness may be overcome only by an overriding interest based on findings that closure
is essential to preserve higher values and is narrowly tailored to serve that interest. . . .’
[Citation.]” (Waller, supra, 467 U.S. at p. 45, quoting Press-Enterprise Co. v. Superior
Court of California (1984) 464 U.S. 501, 510 (Press-Enterprise Co.); accord Globe
Newspaper Co. v. Superior Court for Norfolk County (1982) 457 U.S. 596, 606-607
(Globe Newspaper Co.).)
In Waller, the court set forth the general standards for trial courts to apply before
excluding the public from any stage of a criminal trial: “[T]he party seeking to close the
hearing must advance an overriding interest that is likely to be prejudiced, the closure
must be no broader than necessary to protect that interest, the trial court must consider
reasonable alternatives to closing the proceeding, and it must make findings adequate to
15
support the closure.” (Waller, supra, 467 U.S. at p. 48; accord, Presley, supra, 558 U.S.
at pp. 213-214; Woodward, supra, 4 Cal.4th at p. 383.)4
In Globe Newspaper Co., supra, 457 U.S. at page 607, the court addressed one
overriding interest that, in certain circumstances, could overcome the presumption of
openness: the well-being of a minor victim who testifies during a criminal sex-offense
trial. There, the court struck down Massachusetts’s mandatory rule that barred the press
and public from criminal sex offense trial during the testimony of minor victims. (Ibid.)
The court agreed with the state that its interest in “safeguarding the physical and
psychological well-being of a minor is a compelling one. But as compelling as that
interest is, it does not justify a mandatory closure rule, for it is clear that the
circumstances of the particular case may affect the significance of the interest. A trial
court can determine on a case-by-case basis whether closure is necessary to protect the
welfare of a minor victim. Among the factors to be weighed are the minor victim’s age,
psychological maturity and understanding, the nature of the crime, the desires of the
victim, and the interests of parents and relatives.” (Id. at pp. 607-608, fns. omitted.)
The court further observed that, “while other States have statutory or constitutional
provisions that would allow a trial judge to close a criminal sex-offense trial during the
testimony of a minor victim, no other State has a mandatory provision excluding both the
press and the general public during such testimony. [Citations.] Of course, we intimate
no view regarding the constitutionality of these state statutes.” (Globe Newspaper Co.,
supra, 457 U.S. at p. 608, fn. 22.)
California is among those states that have enacted statutory provisions allowing
the trial court to close a portion of a criminal sex-offense trial in certain circumstances.
(See § 859.1.) Section 859.1 provides in relevant part:
“(a) In any criminal proceeding in which the defendant is charged with any
offense specified in Section 868.8[5] on a minor under the age of 16 years, . . . the court
4
In Presley, supra, 558 U.S. at page 214, the Supreme Court confirmed that “trial
courts are required to consider alternatives to closure even when they are not offered by
the parties.”
16
shall, upon motion of the prosecuting attorney, conduct a hearing to determine whether
the testimony of, and testimony relating to, a minor . . . shall be closed to the public in
order to protect the minor’s . . . reputation.
“(b) In making this determination, the court shall consider all of the following:
“(1) The nature and seriousness of the offense.
“(2) The age of the minor . . . .
“(3) The extent to which the size of the community would preclude the anonymity
of the victim.
“(4) The likelihood of public opprobrium due to the status of the victim.
“(5) Whether there is an overriding public interest in having an open hearing.
“(6) Whether the prosecution has demonstrated a substantial probability that the
identity of the witness would otherwise be disclosed to the public during that proceeding,
and demonstrated a substantial probability that the disclosure of his or her identity would
cause serious harm to the witness.
“(7) Whether the witness has disclosed information concerning the case to the
public through press conferences, public meetings, or other means.
“(8) Other factors the court may deem necessary to protect the interests of
justice.”6
2. Appellant’s Claim Regarding the Constitutionality
of Section 859.1 was Forfeited
Appellant first contends section 859.1 is unconstitutional on its face because it
does not require the trial court to adhere to the factors described in Waller. According to
appellant, the statute improperly “permits closure without requiring that the trial court
consider reasonable alternatives to closing the courtroom, that the closure be no broader
than necessary to protect an overriding interest that is likely to be prejudiced by a public
5
Appellant was charged with violating two offenses specified in section 868.8:
sections 288 and 288.5.
6
Section 859.1 was amended in 2004 to protect, not only minors, but also “a
dependent person with a substantial cognitive impairment.” (§ 859.1 subd. (a).)
17
proceeding, and that the trial court make findings adequate to support the closure.
[Citations.]” Respondent counters that appellant has forfeited the claim that section
859.1 is unconstitutional by failing to object on that ground in the trial court.
“[A]s a general rule, ‘the failure to object to errors committed at trial relieves the
reviewing court of the obligation to consider those errors on appeal.’ [Citations.] This
applies to claims based on statutory violations, as well as claims based on violations of
fundamental constitutional rights. [Citations.]” (In re Seaton (2004) 34 Cal.4th 193,
198; accord, People v. Romero (2008) 44 Cal.4th 386, 411.)
Here, in light of appellant’s failure to raise any facial constitutional challenge to
section 859.1 in the trial court, we decline to address the issue on appeal. The failure to
even hint at such an objection deprived the trial court of the opportunity to address it
before making its ruling. (See, e.g., People v. Romero, supra, 44 Cal.4th at p. 411
[reason for forfeiture “rule is to allow errors to be corrected by the trial court and to
prevent gamesmanship by the defense”].)7
3. Application of Section 859.1 To the Present Case
We turn now to appellant’s contentions that the trial court failed to comply with
the procedural requirements of section 859.1 and that its decision to close the courtroom
during Mr. and Mrs. Does’ testimony was substantively erroneous.
a. The Trial Court Complied with the Procedural
Requirements of Section 859.1
According to appellant, the trial court erred when it (1) failed to hold an
evidentiary hearing and (2) made no specific findings regarding several of the factors
7
At oral argument, counsel for appellant argued, in particular, that subdivision
(b)(5) of section 859.1—which provides that the court must consider “[w]hether there is
an overriding public interest in having an open hearing”—unconstitutionally shifts the
burden to the defendant to demonstrate an overriding interest in an open courtroom, in
violation of the first Waller factor, which requires the proponent of the closure to
“advance an overriding interest that is likely to be prejudiced.” (Waller, supra, 467 U.S.
at p. 48.) However, in light of defense counsel’s failure to object on this ground in the
trial court, we will not address this or any other argument regarding the facial
constitutionality of section 859.1. (See People v. Romero, supra, 44 Cal.4th at p. 411.)
18
listed in section 859.1 before granting the prosecutor’s motion to close the courtroom
during the testimony of Mr. and Mrs. Doe.
Appellant first argues that the court’s reliance solely on the prosecutor’s assertions
regarding the need to protect Jane Doe’s privacy, rather than conducting an evidentiary
hearing, was error. Appellant cites Baldwin, supra, 142 Cal.App.4th at page 1420, in
which the trial court granted the prosecutor’s motion to close the courtroom during the
testimony of a minor victim in a criminal sex-offense trial based only on the prosecutor’s
unsubstantiated statement that it would be difficult for the victim to testify in front of a
large group of spectators. The appellate court found that, “[w]ithout questioning [the
minor] and observing her firsthand, the trial court was in a poor position to evaluate
whether [she] needed the court’s protection during her testimony. [Citation.] [¶]
Although there is no requirement the trial court hold an evidentiary hearing before
closing proceedings, several courts have recognized this as ‘the better course’ [citations],
and the failure to hold a hearing ‘is relevant to the lawfulness of any closure’ [citation].”
(Id. at p. 1422, quoting Guzman v. Scully (2d Cir. 1996) 80 F.3d 772, 775-776 [without
asking witness whether he felt intimidated by certain spectators, court could not ascertain
whether there was an interest that was likely to be prejudiced by failing to remove those
spectators from courtroom].)8
The present case, however, is distinguishable from Baldwin in several ways. First,
and most significantly, defense counsel did not object to closing the courtroom for Jane’s
testimony and in fact acknowledged at the hearing that “it’s clear with Jane Doe that the
privacy rights of a minor victim is absolutely overriding.” 9 Therefore, the only
8
It is notable that, in Baldwin, the appellate court expressly found that the trial
court’s ruling had not been made pursuant to section 859.1, and therefore did not analyze
the propriety of its ruling under that section. (See Baldwin, supra, 142 Cal.App.4th at
p. 1423.)
9
We also observe that there was indirect evidence in the record regarding Jane’s
need for protection during her testimony—and, by extension, that of her parents—
regarding the sexual abuse. Before trial, the prosecution filed a motion with the trial
court requesting that Jane be permitted to testify by closed circuit television due to her
19
remaining question was whether closure during the parents’ testimony was necessary to
protect Jane’s agreed-upon privacy right.
In addition to the prosecutor’s motion and argument on this point, the record
contained evidence extremely relevant to the closure request. Defense counsel had
previously filed a motion to disqualify the entire San Francisco County bench from
presiding over the trial to avoid violating appellant’s right to an impartial trial. The
motion was based on the fact that Mr. and Mrs. Doe were “extremely well known
members of the San Francisco criminal defense bar,” who were “also well known and
respected by the San Francisco County Bench.” Counsel recounted in the motion that, at
the preliminary hearing in this case, the presiding trial judge had stated that he had known
Mr. Doe for over 25 years “in both a professional and personal level, including sporting
events and social events,” and that he had known Mrs. Doe “for nearly 20 years in a
professional level.” In a declaration attached to the motion, defense counsel further
stated that Jane’s father “has been a respected member of the San Francisco County Bar
for over (25) years, and involved in criminal defense for as long,” and that he “has
professional, political, and personal relationships with most if not all of the San Francisco
County Bench.” He also stated that Mrs. Doe “has been a member of the San Francisco
County Bar for over (15) years, and involved in criminal defense for as long.” Counsel
extreme discomfort about testifying in front of appellant. Declarations of Jane’s mother
and therapist were attached to that motion. In her declaration, Mrs. Doe, stated that Jane
“feels very embarrassed and shy when asked to talk about what the defendant did.” Jane
had said she “could not” testify in front of appellant and “would run away” to avoid
doing so. Similarly, Jane’s therapist stated that, “[w]hen discussing the possibility of
court testimony, [Jane] stated clearly that while she may be able to talk to someone about
the incidents, she would not testify and ‘run away’ if she was asked to talk about the
abuse incidents in front of Uncle Al.” Appellant opposed the motion, based on his Sixth
Amendment right to confrontation. At a hearing on the motion, the prosecutor said that
“there has been some work in trying to get [Jane] comfortable enough to be able to be in
the courtroom without . . . feeling that she would need to run away and be suffering from
. . . so much distress that she may not be able to testify in front of the defendant in the
presence of the jury.” The prosecutor therefore withdrew the motion without prejudice to
its renewal if necessary closer to the time of trial.
20
also noted that Mrs. Doe had been “a well respected employee” of a San Francisco
governmental organization for over 15 years, and that she “has professional, political,
and personal relationships with most if not all of the San Francisco County Bench.”
Counsel further averred that any prejudice or bias against appellant based on these
“extensive relationships of the alleged victim’s family” would be detrimental to the
defense and would violate due process.10
The motion to disqualify and the accompanying declaration, both of which were
contained in the case record, along with the trial court’s own experience with “the culture
of the Hall of Justice,” were extremely relevant to the subsequent motion to close the
courtroom during Mr. and Mrs. Does’ testimony. They provided a basis upon which the
court could consider “the extent to which the size of the community would preclude
[Jane’s] anonymity” (§ 859.1, subd. (b)(3)), as it determined the potential harm to Jane’s
reputation if the courtroom remained open during her parents’ testimony. (See 859.1,
subds. (a) & (b)(6).)
Appellant also argues that the court should have ascertained whether Jane’s
parents wished to have the courtroom closed during their testimony. He notes that,
during a hearing regarding various in limine motions, Mr. Doe responded to defense
counsel’s request that Jane’s parents be excluded from the courtroom while the court
addressed certain motions. Mr. Doe, who asked to be heard on behalf of himself and his
wife, stated: “So I do have an objection, as the victim’s parents, to [defense counsel’s]
blanket assertion that there’s some concern about us sitting here in terms of motions in
limine. Any of the other witnesses—it’s an open courtroom. It’s a public forum. Any
witness in this case has a right to walk into this court and listen, like any other citizen, to
listen to the proceedings. . . . [¶] And so it’s an effort to not let us, as parents of the
victim[], sit in a public forum day-in and day-out and listen to what’s going on with our
10
The prosecutor did not oppose the motion to disqualify the San Francisco
County bench, but deferred to the trial court, which ultimately denied the motion on the
ground that there was no statutory authority for challenging more than “one judge one
time.”
21
daughter’s case. . . .” According to appellant, Mr. Doe’s statement about the “open
courtroom” shows that he likely would have opposed the closure during his testimony.
On the contrary, what Mr. Doe’s statement actually reflects is (1) his belief in his and
Mrs. Doe’s right to be present “day-in and day-out” during in limine hearings and (2) his
lack of shyness about expressing to the court his opinion on a pending in limine motion.
That he apparently was present and did not say a word during the portion of the hearing
addressing closure of the courtroom during his and his wife’s testimony, which took
place just a short time after he spoke up against their exclusion from the courtroom
during any portion of the in limine hearing, provides a fairly strong inference that he did
not object to such a closure.11
In sum, the court was able to make an informed decision based, not only on the
prosecutor’s motion and the hearing on that motion, but also on information already in
the record that was relevant to the resolution of the issue. (Compare Baldwin, supra, 142
Cal.App.4th at p. 1420.) In the circumstances of this case, the court did not err in failing
to hold a separate evidentiary hearing.
Appellant further argues, in summary fashion, that the court erroneously failed to
make findings regarding many of the factors listed in section 859.1, which a trial court
must consider. (See § 859.1, subd. (b) [in determining whether to close hearing to public,
“the court shall consider all of the following”].) In particular, appellant argues that the
court “made no finding that Jane Doe’s reputation would be harmed; it conducted no
analysis of the nature and seriousness of the offense; it did not assess the likelihood of
public opprobrium due to the status of the victim[;] it did not assess whether there was a
substantial probability that disclosure of Jane Doe’s identity would cause serious harm to
her[; and] [i]t did not assess how Jane Doe’s age . . . factored into its decision.”
11
Moreover, while a parent’s interests are relevant to a determination of whether
the overriding interest in a minor’s well-being will be prejudiced (see Globe Newspaper
Co., supra, 457 U.S. at pp. 607-608), here, where the need to protect Jane’s overriding
privacy interest during her testimony was already agreed to by the parties, the court’s
focus under section 859.1 was properly on how the parents’ testimony would affect
Jane’s privacy rights.
22
Again, appellant’s argument ignores a crucial fact: Defense counsel, while
objecting to a closed courtroom during the parents’ testimony, stated that it was “clear
with Jane Doe that the privacy rights of a minor victim [are] absolutely overriding.” At
that point, given the parties’ agreement that Jane’s privacy rights warranted closure of the
proceedings during her testimony, there was no reason for the court to weigh all of the
factors relating to the need to protect Jane’s reputation.12 Rather, the only question
before the court was whether, to fully protect Jane’s privacy rights, the courtroom also
had to be closed during Jane’s parents’ testimony. The court therefore focused on the
two issues central to that determination.
The court first addressed the threshold question of whether Mr. and Mrs. Does’
testimony would, like Jane’s own testimony, require them to describe the sexual abuse
Jane suffered. (See § 859.1, subd. (a).) As to this question, the court found that their
testimony would be, “in essence, almost the same thing as [Jane’s] testimony itself” and
would therefore “relate specifically to [Jane] and what’s going on with [Jane] vis-à-vis
this case.” The remainder of the court’s findings were addressed to the second question:
“The extent to which the size of the community would preclude anonymity of” Jane.
(§ 859.1, subd. (b)(3).) The court defined the community as legal professionals
practicing in the Hall of Justice, to which Mr. and Mrs. Doe, who also practiced there,
12
In light of defense counsel’s agreement to close the courtroom during Jane’s
testimony, there was no need to weigh many of the factors in section 859.1, subdivision
(b), that would otherwise have to be considered in determining whether the interest in
protecting the minor’s reputation outweighed the defendant’s interest in a public trial.
(See § 859.1, subd. (b)(1), (b)(2), & (b)(4).)
In addition, subdivisions (b)(5) and (b)(7) of section 859.1 primarily reflect the
original purpose of the bill that ultimately became the statute: to balance the minor
victim’s privacy rights with the press and public’s First Amendment public trial rights.
(See, e.g., Office of Criminal Justice Planning, Enrolled Bill Rpt., Analysis of Assem.
Bill No. 1325 (1989-1990 Reg. Sess.) Sept. 6, 1990.) Here, there was no indication
whatsoever—from appellant or any other source—that there was any First Amendment
issue related to an overriding public interest in having an open hearing (§ 859.1, subd.
(b)(5)), or that Jane or parents had disclosed information regarding the case to the public.
(See § 859.1, subd. (b)(7).)
23
were well known. As the court explained: “[K]nowing the culture of the Hall of Justice,
any lawyer who might come in and peek in and see a defense lawyer or prosecutor sitting
on the stand is going to be compelled to come in through those doors to hear what they
have to say. And so while we may not intend to attract that kind of attention, it may.
And before you know it, we may have quite a sizable crowd in here. And I just think that
would completely undermine any efforts we make in closing the courtroom as to [Jane]
personally.”
The court’s findings demonstrate that it considered the factors set forth in section
859.1 that were relevant to whether closure of the courtroom during Mr. and Mrs. Does’
testimony was necessary to fully protect Jane’s reputation. (Compare Baldwin, supra,
142 Cal.App.4th at p. 1423 [in which appellate court found that section 859.1 was
inapplicable because “[t]he prosecutor did not contend [the minor victim’s] reputation
needed protection, and the court made none of the findings required by section 859.1”].)
b. The Trial Court’s Ruling Under Section 859.1 Was Substantively Correct
Appellant argues that, in addition to procedural deficiencies, the trial court’s
decision to close the courtroom during Mr. and Mrs. Does’ testimony was substantively
erroneous. According to appellant, the court’s sole rationale for closing the courtroom
during their testimony was that an open courtroom would threaten Jane’s anonymity and
reputation, and that rationale was “destroyed” by the numerous times—from the
preliminary hearing through the prosecutor’s opening statement—that Mr. and Mrs. Doe
were referred to by name. Thus, appellant avers, by the time of their testimony, “the cat
was already out of the bag” since “[t]hose people sitting in the audience had already
heard the prosecutor describe the nature of the allegations and identify the entire family
in her opening statement. There was thus no more anonymity to protect—and thus no
justification for closing the courtroom during the testimony of Jane Doe’s parents.”
Appellant misconstrues the nature of the prosecutor’s request and the trial court’s
ruling. The concern was not about spectators who might be in the courtroom during
opening statements hearing the parents’ names or about records clerks later coming upon
the names in the written record. Instead, the motion and the court’s findings regarding
24
the need to protect Jane’s reputation were focused on the small Hall of Justice community
of legal professionals who knew Mr. and Mrs. Doe professionally, whose curiosity would
likely be piqued by seeing that they were testifying in a criminal case, and who would
therefore enter the courtroom and learn that their daughter had been molested. Again, as
the court stated, the spectacle of the parents testifying could lead to “quite a sizable
crowd in here,” which “would completely undermine any efforts we make in closing the
courtroom as to [Jane] personally.”
Such an occurrence would plainly not protect Jane’s privacy. Rather, it would
both increase the number of people who heard the Does’ testimony about the molestation
and, in particular, would eliminate Jane’s anonymity amongst the community of people
with whom Jane’s parents would have to continue to interact on a professional basis.
(See § 859.1, subd. (b)(6).) Moreover, having to testify about their daughter’s sexual
victimization by a trusted family member in front of their curious professional peers
would undoubtedly add to the already significant trauma experienced by Jane’s family.
(See ibid.) The court’s ruling thus was not undercut by either the prior mention of Jane’s
parents’ names or their subsequent appearance in the transcript, where there was no
danger that members of the legal community in question would observe them on the
witness stand and come into the courtroom to listen to them testifying about the details of
their daughter’s molestation.13
There was no substantive error in the trial court’s ruling under section 859.1.14
13
Similarly, that the prosecution issued press releases following appellant’s
conviction and sentencing does not undermine trial court’s ruling, given that the press
releases, which disclosed appellant’s identity only, and not that of the Does, did not relate
to the issue of concern regarding maintaining Jane’s privacy at trial vis-à-vis the legal
community at the Hall of Justice. (See ; [as of
May 7, 2015].)
14
We do note that the term, “community,” as used in section 859.1, is ambiguous.
Although the Hall of Justice community described by the court may not be what we
would imagine a typical community to be, it does meet one of the dictionary definitions
of community, which is “a unified body of individuals” such as “a body of persons of
25
4. Alleged Constitutional Violation of Appellant’s Right to a Public Trial
Appellant contends that, regardless of the propriety of the courtroom closure under
section 859.1, the trial court violated his Sixth Amendment and state constitutional rights
to a public trial when it closed the courtroom during the testimony of Jane Doe’s
parents.15
As previously discussed, under the Sixth Amendment, four factors must be
satisfied before the trial court may close a courtroom to the public during any stage of a
criminal trial: “[T]he party seeking to close the hearing must advance an overriding
interest that is likely to be prejudiced, the closure must be no broader than necessary to
protect that interest, the trial court must consider reasonable alternatives to closing the
proceeding, and it must make findings adequate to support the closure.” (Waller, supra,
467 U.S. at p. 48; accord, Woodward, supra, 4 Cal.4th at p. 383.)
a. An Overriding Interest that Is Likely to Be Prejudiced
Regarding the requirement of advancing an overriding interest that is likely to be
prejudiced, appellant essentially repeats two of his earlier arguments, both of which we
have already addressed, in claiming that any interest Jane had in anonymity was not
common and especially professional interests scattered through a larger society.”
(Merriam-Webster Dictionary Online, http://www.merriam-webster.com/dictionary/
community.) Therefore, in the circumstances of this case, we find that the court
reasonably concluded that the added presence and likely curiosity of this small legal
community of which Jane’s parents were members, centered as it was in the Hall of
Justice where the trial was taking place, would make it difficult to protect Jane’s
anonymity were the courtroom to remain open during Mr. and Mrs. Does’ testimony.
15
To the extent respondent’s forfeiture argument (see part I., B., 2., ante) includes
appellant’s failure to challenge the constitutionality of the statute as it was applied to him,
we believe that defense counsel’s objection to closure of the courtroom during the
testimony of Mr. and Mrs. Doe was sufficient to preserve the issue for appeal. First, the
prosecutor had based her closure motion on both section 859.1 and the Waller factors.
Second, during argument on the motion, defense counsel referred to both “the statute and
the case law,” and observed that “the court needs an abundance of factors to close the
courtroom.” Although he did not expressly mention the federal or state Constitution,
counsel’s reference to the case law and the need to consider various factors was adequate
to preserve the issue, especially given the constitutional interests necessarily implicated
by any courtroom closure.
26
compelling enough to override the “ ‘presumption of openness.’ ” (Waller, supra, 467
U.S. at p. 45, quoting Press-Enterprise Co., supra, 464 U.S. at p. 510.) He first asserts
that no overriding interest was shown because the court did not hear any evidence or
make any findings that disclosure of Jane’s parents’ testimony would damage her
reputation. As previously discussed (see part I., B., 3., a., ante), defense counsel agreed
at the outset that Jane’s right to privacy constituted an overriding interest justifying
closure of the courtroom. There was thus no need for additional evidence or findings on
this point.
Appellant next asserts that closing the courtroom during Jane’s parents’ testimony
would not further Jane’s privacy interests with respect to the sexual abuse given that her
anonymity had already been compromised earlier in the trial through the use of her
parents’ full names in court. Again, as we previously explained (see part I., B., 3., b.,
ante), the closure order was narrowly aimed at legal professionals at the Hall of Justice
who might observe Mr. or Mrs. Doe on the witness stand, be drawn into the courtroom,
and hear them describe the details of the molestation, which would both invade Jane’s
privacy and cause additional distress to her family. Hence, Jane’s overriding interest in
protection of her privacy remained unaffected by the prosecutor’s use of her parents’
names.
The Supreme Court has emphasized that a state’s interest in “safeguarding the
physical and psychological well-being of a minor is a compelling one.” (Globe
Newspaper Co., supra, 457 U.S. at pp. 607-608.) We conclude that the first Waller
requirement of advancing “an overriding interest that is likely to be prejudiced” was
satisfied in this case. (See Waller, supra, 467 U.S. at p. 48.)16
16
We also observe that the California Constitution affords special protections to
victims of crime. Proposition 9, the “Victims’ Bill of Rights Act of 2008: Marsy’s
Law,” amended the California Constitution to guarantee crime victims certain rights,
including the right “[t]o be treated with fairness and respect for his or her privacy and
dignity, and to be free from intimidation, harassment, and abuse, throughout the criminal
or juvenile justice process.” (Cal. Const., art. I, § 28, subd. (b)(1).) Marsy’s Law further
provides that “[a] victim, the retained attorney of a victim, a lawful representative of the
27
b. The Closure Should Be No Broader than Necessary
to Protect the Overriding Interest
Appellant argues that the trial court made no effort to ensure that the closure was
no broader than needed to protect Jane’s anonymity.
As previously discussed (see part I., B., 3., a., ante), using the framework of
section 859.1, the trial court determined that, in order to protect Jane’s privacy and
reputation, it was necessary to close the courtroom during the testimony of her parents.
As the court explained, Mr. and Mrs. Does’ testimony about the sexual abuse would be
“almost the same thing” as Jane testifying about it. In examining the breadth of the
closure, it must be noted that the court did not close the courtroom to the public during
the entire trial. (Compare Waller, supra, 467 U.S. at pp. 48-49 [trial court’s blanket
closure of entire seven-day suppression hearing without considering specific need for
privacy was overbroad].) Nor did it even close the courtroom during all testimony
“relating to” Jane Doe since, unlike with the testimony of Jane’s parents, this other
testimony would neither draw the Hall of Justice community into the courtroom nor
reveal Jane’s identity. (§ 859.1, subd. (a).) Social worker Gloria Samayou testified about
the interview she conducted with Jane, in which Jane had described the sexual abuse.
Pediatric nurse practitioner Susan Houser testified about the results of the forensic
examination she performed on Jane. In addition, when Mrs. Doe briefly testified again
during the defense case, primarily identifying photographs and describing the layout of
the ranch in Sonoma, it appears that the courtroom remained open. Beyond Jane’s
testimony itself, the closure was limited to her parents’ testimony during the prosecution
case only. This was based on the court’s reasonable finding that such a closure was
necessary to protect Jane’s privacy with respect to her parents’ Hall of Justice peers, in
light of their detailed testimony recounting Jane’s disclosure of the sexual abuse, which
included explicit descriptions of the nature of that abuse. (See part I., B., 3., b., ante; cf.
victim, or the prosecuting attorney upon request of the victim, may enforce the rights
enumerated in subdivision (b) in any trial or appellate court with jurisdiction over the
case as a matter of right. The court shall act promptly on such a request.” (Cal. Const.,
art. I, § 28, subd. (c)(1).)
28
United States v. Yazzie (9th Cir. 2014) 743 F.3d 1278, 1289 [courtroom closure was
narrowly tailored to asserted interest because courtroom was closed only during
testimony of child victims].)
Moreover, even during the testimony in question, no one connected to the case
was excluded; all courtroom personnel, as well as attorneys, assistants, and interns for the
parties and, of course the jury, were present. Also, there is no indication that any portion
of the trial, including the testimony in question, was not reported, and the transcripts are
available for public review. Finally, although the prosecutor had stated in her motion to
close the courtroom and at the hearing on that motion that she would not object to a
support person for appellant being in the courtroom during the parents’ testimony, neither
appellant nor his counsel expressed his desire for the presence of a support person.
It is also important to note that section 859.1 itself implicitly requires the court to
weigh the competing interests in determining whether protection of a minor victim’s
reputation requires a temporary closure of the courtroom during either the testimony of
the minor or testimony relating to that minor. Hence, the statute itself permits a closure
that is no broader than necessary to protect the minor victim’s reputational interest. (See
Waller, supra, 467 U.S. at p. 48.) Rather than making a blanket closure order based on
the state’s compelling interest in “safeguarding [Jane’s] physical and psychological well-
being,” the court in this case considered the particular circumstances of the case,
weighing various factors, including, inter alia, “the desires of the victim” and the
“interests of parents,” before making its temporary closure order. (Globe Newspaper Co.,
supra, 457 U.S. at pp. 607-608, fn. omitted.) The court thereby balanced appellant’s and
Jane’s competing interests to allow a form of closure no broader than necessary in the
circumstances. (See Waller, at p. 48; accord, Woodward, supra, 4 Cal.4th at p. 383.)
c. Consideration of Reasonable Alternatives to Closing the Proceeding
Appellant claims the trial court failed to consider any reasonable alternatives to
closing the courtroom during Mr. and Mrs. Does’ testimony.
First, section 859.1 itself addresses the requirement that the court consider
reasonable alternatives to closing the courtroom by permitting only a temporary closure
29
of the courtroom during certain specified testimony by or relating to minor victim, and
only when absolutely necessary to protect the minor’s reputation. Here, the court
considered the alternative of closing the courtroom during Jane’s testimony only, but,
after examining the relevant factors in section 859.1 and considering the specific
circumstances, reasonably determined that closure during the parents’ testimony was also
necessary to protect Jane’s reputation. (Compare Waller, supra, 467 U.S. at pp. 48-49
[court should have considered alternatives to closure of entire suppression hearing, such
as obtaining more detailed information from the prosecution about the need for closure,
and then “closing only those parts of the hearing that jeopardized the interests
advanced”].)
Appellant nevertheless asserts that the court should have considered several
additional alternatives to temporarily closing the courtroom during the testimony of
Jane’s parents. For example, according to appellant, the court should have asked the
prosecutor to provide more information about its need for closure or questioned Jane, her
therapist, or her parents. As already discussed (see part I., B., 3., a., ante), the court had
sufficient information about Jane’s situation and the importance of the interest at stake.
Appellant also asserts that the court should have considered “beginning Jane Doe’s
parents’ testimony, and then calling a recess to discuss how to proceed if the ‘sizable
crowd’ the court feared materialized—or even if a single legal professional known to
Jane Doe’s parents happened to enter the courtroom. The judge could have allowed Jane
Doe’s parents to communicate with her via a signal of some sort if legal professionals
they were acquainted with entered the courtroom. The judge could have taken other
steps, as well, for example, ordering the court reporter and bailiff not to discuss the
matter with other courthouse employees or legal professionals, which would have
reduced the risk that gossip would draw legal professionals acquainted with Jane Doe’s
parents to the courtroom.” Appellant also suggests that the court could have placed a
sign on the door or stationed a bailiff outside the courtroom to exclude “all legal
professionals not directly connected to the case.” The requirement, however, is that the
court consider “reasonable” alternatives to closing the courtroom. These suggestions by
30
appellant involve unwieldy methods that would have only served to distract both the jury
and the witnesses from the testimony at hand and/or would have likely been ineffective in
providing the protection the court deemed necessary.
We conclude the trial court considered reasonable alternatives to closing the
courtroom during the testimony of Jane’s parents. (See Waller, supra, 467 U.S. at p. 48.)
d. Court Must Make Findings Adequate to Support the Closure
In asserting that the trial court did not make findings adequate to support the
closure, appellant primarily repeats arguments about the propriety of closing the
courtroom generally, which we have already addressed elsewhere in this opinion.17 We
believe the court’s findings, in which it explained the basis of its ruling that closure was
necessary, were adequate to support its decision. Unlike Baldwin, in which the trial court
made only the conclusory finding that, “when a child under the age . . . of 16 is testifying
about such matters, the courtroom may be closed upon their request” (Baldwin, supra,
142 Cal.App.4th at p. 1420), the record here reflects that the trial court “balanced the
competing interests and fashioned an order narrowly tailored to infringe on the competing
interests as little as possible.” (Id. at p. 1243.)
In sum, because the trial court’s ruling complied with the factors set forth in
Waller, we conclude the closure of the courtroom during the testimony of Jane Doe’s
parents did not violate appellant’s Sixth Amendment right to a public trial. (See Waller,
supra, 467 U.S. at p. 48; Woodward, supra, 4 Cal.4th at p. 383.)
17
For example, appellant argues that the court should have questioned Jane’s
parents about their wishes, should have questioned Jane or her therapist about whether
the potential damage to her reputation would traumatize her, and “made no finding that
disclosure of Jane Doe’s identity would harm her reputation; rather it seemed to assume
that it would.” As to the last point, we again note that appellant not only failed to object
to closing the courtroom during Jane’s testimony, defense counsel acknowledged that
Jane’s privacy rights were “absolutely overriding.”
31
II. Prior Uncharged Sexual Offenses
Appellant contends the trial court abused its discretion and violated his due
process rights when it admitted evidence of prior uncharged sexual offenses pursuant to
Evidence Code section 1108.
A. Trial Court Background
Before trial, the prosecutor moved in limine to introduce testimony at trial,
pursuant to Evidence Code sections 1101, subdivision (b), and 1108, regarding prior
uncharged offenses committed by appellant. Specifically, the prosecutor asked that
appellant’s adult daughters, Isabel and Victoria be permitted to testify about appellant’s
sexual abuse of them when they were young children; that appellant’s ex-brother-in-law,
Jaime B., be permitted to testify that appellant forcibly engaged in anal intercourse with
him when he was a child; that appellant’s ex-wife, Donna Asturias, be permitted to testify
about his possession of a magazine containing pornographic photographs of very young
looking girls, about a video he took of young girls at a water park, “zoom[ing] in on the
children’s vaginas and butts,” and about a pornographic photograph she found in his
possession, which depicted a girl who appeared to be approximately three years old; and
that appellant’s cousin, “Tony” B. be permitted to testify that appellant sent him
pornographic images of prepubescent girls via the Internet.
Following an Evidence Code section 402 hearing, during which Isabel testified
about appellant’s sexual abuse of her as a child, the court told defense counsel and the
prosecutor that there was “no doubt in my mind that [Isabel’s proposed testimony] is
definitely proper [section] 1108 testimony. And there are incredible similarities between
what Isabel has testified to and what we believe that . . . Jane Doe is going to testify to.”
The court later reiterated its belief that the probative value of Isabel’s testimony was not
outweighed by the danger of undue prejudice, and found it admissible under both section
1108 and section 1101, subdivision (b). The court further stated that it was willing to
consider whether to also admit Victoria’s proposed testimony if the prosecutor chose to
bring her from El Salvador to testify at an Evidence Code section 402 hearing. Finally,
the court found that Jaime B.’s proposed testimony “is definitely in the category of far
32
more prejudicial than probative. [¶] . . . [¶] So my feeling is . . . that I probably would
not let that in.” The prosecutor then withdrew Jaime B. as a proposed witness due to the
potentially prejudicial nature of his testimony.18
Some time after the initial Evidence Code section 402 hearing at which Isabel
testified, the court held another Evidence Code section 402 hearing at which Victoria was
expected to testify. At that hearing, defense counsel withdrew his request for an
Evidence Code section “1108 hearing,” based on the prosecutor’s offer of proof
regarding Victoria’s testimony. Counsel then asked “to make [an Evidence Code section]
352 argument” instead. Counsel stated that “the fear[] of the defense is that this jury will
be making a decision ruling on guilt based upon an inordinate amount of 1101/1108
evidence. To date, the court has ruled admissible information from Donna, [Tony],
Isabel, and now, with the expected admission of Victoria, what I would ask the court at
this point is to revisit the issue of the admissibility of Donna and [Tony]. [¶] Taking the
offer of proof contained in the People’s 1108 argument for Victoria, that clearly, as well
as with Isabel, appear to be [sic] the most relevant and probative for these charges. . . .
“So what I’m asking the court at this time to do, in light of the information
provided by Isabel and Victoria, that the court revisit the information from Donna and
[Tony], rule that that is more prejudicial than probative, and proceed forward only
allowing the testimony relating to Isabel and Victoria.”
Following additional argument by the prosecutor, defense counsel responded:
“I’m not, with this argument, trying to curtail Victoria or Isabel. . . . [¶] And I think that
by allowing in the information from Victoria and Isabel, which does appear relevant to
the allegation with regards to [Jane] Doe, without the information from [Tony] and
Donna, I think what it does is sanitize potential prejudice with issues that aren’t directly
related to this case . . . . [¶] . . . [¶] What I’m asking for is the court to sanitize the 1101
and 1108 and allowing in the most probative so we are not trying uncharged cases.”
18
The court had previously found admissible, with certain limitations, the
proposed testimony of Donna and Tony.
33
The court ruled, based on the prosecutor’s offer of proof, that Victoria could
testify, but that it would “only . . . allow her to testify to any acts that are the same as
those alleged with [Jane], namely of the fondling of her vagina, vulva, crotch, breasts.”
The court also said it would allow “her testimony that the defendant took photos of her
and would have her pose in different positions, because I do think that’s somewhat
relevant to the whole issue of child pornography and his intent as to what he’s viewing,
. . . but I am not going to allow the testimony with regard to the oral copulation or the use
of the massager. I think that kind of tips . . . towards the prejudice and a little bit away
from the probative value . . . .”19
The court then revisited its ruling on the admissibility of Donna’s and Tony’s
testimony, and determined that Tony’s testimony was highly relevant and admissible, but
that Donna’s testimony could be unduly prejudicial and should therefore be excluded.
At trial, Isabel and Victoria testified to the sexual abuse appellant inflicted on
them when they were young children. The court thereafter instructed the jury based on
CALCRIM No. 1191, regarding evidence of uncharged sex offenses.20
19
Thereafter, defense counsel also stated that he had no objection to Victoria
testifying that appellant showed her a book of adults and children engaging in sexual acts,
in an attempt to convince her that the sexual abuse was normal so that she would continue
to tolerate it.
20
The court’s instruction, pursuant to CALCRIM No. 1191, provided as follows:
“The People presented evidence that the defendant committed the crimes of Lewd and
Lascivious Act upon [a] Child under the age of 14 and/or Continuous Sexual Abuse
against Victoria and Isabel that were not charged in this case. These crimes are defined
for you in these instructions.
“You may consider this evidence only if the People have proved by a
preponderance of the evidence that the defendant in fact committed the uncharged
offenses. Proof by a preponderance of the evidence is a different burden of proof from
proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if
you conclude that it is more likely than not that the fact is true.
“If the People have not met this burden of proof, you must disregard this evidence
entirely.
“If you decide that the defendant committed the uncharged offenses, you may, but
are not required to, conclude from that evidence that the defendant was disposed or
34
B. Legal Analysis
As a preliminary matter, we note that the record is unclear regarding whether
appellant objected to admission of the testimony of either Isabel or Victoria. Although
the discussion between counsel and the court at the two relevant hearings on this issue
were somewhat convoluted, defense counsel did state that the sisters’ testimony would be
both relevant and probative, and asked that only their testimony be admitted at trial,
arguing that the testimony of Tony and Donna. should be excluded under Evidence Code
section 352 as more prejudicial than probative. What is not clear is whether counsel was
making this argument as a suggested compromise, given the court’s apparent decision to
admit Isabel’s and Victoria’s testimony in any case, or whether he had withdrawn his
initial objection to the sisters’ testimony.21 Giving appellant the benefit of the doubt, we
will presume that appellant preserved this issue for appeal.
Evidence Code section 1108, subdivision (a), provides: “In a criminal action in
which the defendant is accused of a sexual offense, evidence of the defendant’s
commission of another sexual offense or offenses is not made inadmissible by Section
1101,[22] if the evidence is not inadmissible pursuant to Section 352.” 23
inclined to commit sexual offenses, and based on that decision, also conclude that the
defendant was likely to commit and did commit Continuous Sexual Abuse and/or Lewd
and Lascivious Act upon a Child, as charged here. If you conclude that the defendant
committed the uncharged offenses, that conclusion is only one factor to consider along
with all the other evidence. It is not sufficient by itself to prove that the defendant is
guilty of the charged crimes of Continuous Sexual Abuse and/or Lewd and Lascivious
Act upon a Child. The People must still prove each charge beyond a reasonable doubt.
“Do not consider this evidence for any other purpose.”
21
Counsel did raise this issue in a motion for a new trial, which the court denied.
The filing of a new trial motion, however, was not alone sufficient to preserve the issue
for appeal. (See People v. Mayorga (1985) 171 Cal.App.3d 929, 940-941.)
22
Subdivision (a) of Evidence Code section 1101 provides: “Except as provided
in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s
character or a trait of his or her character (whether in the form of an opinion, evidence of
reputation, or evidence of specific instances of his or her conduct) is inadmissible when
offered to prove his or her conduct on a specified occasion.”
35
“In enacting section 1108, the Legislature recognized the ‘ “serious and secretive
nature of sex crimes and the often resulting credibility contest at trial,” ’ and intended in
sex offense cases to relax the evidentiary restraints imposed by section 1101 ‘to assure
that the trier of fact would be made aware of the defendant’s other sex offenses in
evaluating the victim’s and the defendant’s credibility.’ [Citation.]” (People v.
Hernandez (2011) 200 Cal.App.4th 953, 965 (Hernandez).) In People v. Johnson (2010)
185 Cal.App.4th 520, 532, footnote 9, a panel of this Division discussed the particularly
probative nature of prior sexual offense evidence in sex offense prosecutions: “The
legislative history of section 1108 suggests an underlying psychological abnormality that
makes such evidence especially probative: ‘The propensity to commit sexual offenses is
not a common attribute among the general public. Therefore, evidence that a particular
defendant has such a propensity is especially probative and should be considered by the
trier of fact when determining the credibility of a victim's testimony.’ (Sen. Rules Com.,
Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 882 (1995-1996 Reg.
Sess.) as amended July 18, 1995, p. 8.)”
In People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), our Supreme Court held
that Evidence Code section 1108 does not violate a defendant’s due process rights.
While acknowledging the general rule against admitting propensity evidence due to its
great potential to unduly prejudice the defendant (see § 1101, subd. (a)), the court held
that, “in light of the substantial protections afforded to defendants in all cases to which
section 1108 applies, we see no undue unfairness in its limited exception to the historical
rule against propensity evidence.” (Falsetta, at p. 915.)
The “substantial protections” to which the Falsetta court referred consist of the
requirement that the court “engage in a careful weighing process under section 352.”
(Falsetta, supra, 21 Cal.4th at p. 917.) As part of this weighing process, “the probative
value of the evidence must be balanced against four factors: (1) the inflammatory nature
23
In his briefing, appellant’s entire argument focuses on the propriety of admitting
this testimony under Evidence Code sections 1108 and 352. Hence, we do not address
the alternative basis for the court’s ruling: Evidence Code section 1101, subdivision (b).
36
of the uncharged conduct; (2) the possibility of confusion of issues; (3) remoteness in
time of the uncharged offenses; and (4) the amount of time involved in introducing and
refuting the evidence of uncharged offenses.” (People v. Branch (2001) 91 Cal.App.4th
274, 282 (Branch), citing People v. Harris (1998) 60 Cal.App.4th 727, 737-741
(Harris).) “ ‘ “ ‘As with other forms of relevant evidence that are not subject to any
exclusionary principle, the presumption will be in favor of admission.’ ” ’ ” (People v.
Loy (2011) 52 Cal.4th 46, 62, quoting legislative history; accord, People v. Merriman
(2014) 60 Cal.4th 1, 62.) In addition, section 1108 does not require any particular
similarity between the charged offense and a defendant’s other offenses since such a
requirement “ ‘ “would tend to reintroduce the excessive requirements of specific
similarity under prior law which [section 1108] is designed to overcome . . . . Many sex
offenders are not ‘specialists,’ and commit a variety of offenses which differ in specific
character.” ’ [Citation.]” (People v. Soto (1998) 64 Cal.App.4th 966, 984, quoting
legislative history.)
We review the trial court’s decision to admit the prior offense evidence for an
abuse of discretion. (Hernandez, supra, 200 Cal.App.4th at p. 966.)
With respect to the probative value of the testimony in question, defense counsel
himself acknowledged that the prior sexual offense evidence was extremely probative
regarding whether appellant committed the current offenses against Jane Doe. (See
Branch, supra, 91 Cal.App.4th at p. 282.) We disagree with appellant’s assertion that the
probative value of the evidence was significantly diminished by the fact that neither
Isabel nor Victoria came forward to accuse appellant until after they heard that he had
been accused of molesting Jane. (Cf. People v. Ewoldt (1994) 7 Cal.4th 380, 405
[probative value of evidence of “same design or plan” may be further increased if
independent evidence of additional instances of similar misconduct were produced].)
Isabel had never met the Doe family, while Victoria had met Mr. Doe only once, in the
1990’s. That they each came forward only after hearing from their half brother about the
current allegations against appellant does not diminish the probative value of their
testimony in the circumstances of this case.
37
Appellant further claims that the danger of undue prejudice outweighed the
inarguably probative value of the prior offense evidence, as shown by an examination of
the four factors relevant to such a determination. (See Branch, supra, 91 Cal.App.4th at
p. 282.) We disagree.
First, appellant claims that the prior offense evidence was more inflammatory than
the evidence regarding appellant’s sexual abuse of Jane Doe. In particular, he points out
that Isabel testified that she woke up naked in bed with her siblings after being given a
pill by appellant; that appellant moved her back and forth on his lap while he had an
erection; that he placed his erect penis near her vagina while they were both naked, and
may have attempted to penetrate her; that, while in the shower together, he washed her
vagina and asked her to wash him, while he had an erection; and that he locked her in a
closet with her brother and a video camera and asked her brother to “fuck” her.
Appellant also observes that, although the court excluded some of Victoria’s proffered
testimony, it allowed her to testify that appellant forced her to pose naked while he took
photographs of her.24
Although some of the evidence regarding appellant’s molestation of Isabel may
have been more inflammatory than the evidence regarding his abuse of Jane, we do not
believe that testimony was so highly prejudicial as to outweigh the probative value of this
evidence. Most of the prior offense evidence was strikingly similar to that of Jane (see
discussion, post) and, moreover, it is to be expected that appellant, who had significantly
greater access to and privacy with his daughters, would engage in some conduct with
them that circumstances would not allow him to engage in with Jane. (See Branch,
supra, 91 Cal.App.4th at pp. 283-284 [“While appellant seems to have engaged in a
wider variety of sexual offenses over a longer period of time with [prior victim], the
24
The court excluded potentially inflammatory testimony by Victoria “with regard
to the oral copulation or the use of the massager.” The court apparently admitted the
testimony regarding appellant taking photographs of Victoria under Evidence Code
section 1101, subdivision (b), based on its relevance “to the whole issue of child
pornography and his intent as to what he’s viewing.”
38
nature of the offenses was very similar to the ones involving [current victim],” which
made it “unlikely that the jury would have been so prejudiced against appellant as a
consequence of [prior victim’s] ‘inflammatory’ testimony that he was denied a fair
trial”]; compare Harris, supra, 60 Cal.App.4th at p. 738 [where defendant was charged
with nonviolent sex offenses against women he knew, prior offense evidence involving a
wholly dissimilar vicious attack on a stranger 23 years earlier was “inflammatory in the
extreme”].)
Second, according to appellant, the jury likely convicted him of sexually abusing
Jane to punish him for committing the uncharged prior offenses against his daughters.
Both Isabel and Victoria stated that they were testifying because they believed that
appellant had to be stopped. Even assuming this testimony alerted the jury to the fact that
appellant had not been convicted of the prior offenses, there is no evidence to support
appellant’s hypothesis that the jury’s verdict in this case was based on a desire to punish
appellant for molesting his daughters. Nor is there any indication that the issues were
confused. Indeed, of the many questions the jury asked during deliberations, none related
to the prior offense evidence. (See Branch, supra, 91 Cal.App.4th at p. 284.) Moreover,
the court gave CALCRIM No. 1191, which instructed the jury to consider the prior
offense evidence “only for the purpose of showing that appellant ‘was disposed or
inclined to commit sexual offenses’ and . . . admonished [it] not to ‘consider this
evidence for any other purpose.’ ” (Hernandez, supra, 200 Cal.App.4th at p. 969.) We
presume the jurors understood and followed this instruction. (Ibid.)
Third, appellant argues that the remoteness of the prior offenses—which occurred,
at the latest, 28 years before the offenses against Jane—diluted their probative value and
rendered them unduly prejudicial. “No specific time limits have been established for
determining when an uncharged offense is so remote as to be inadmissible. [Citation.]”
(Branch, supra, 91 Cal.App.4th at p. 284.) However, “significant similarities between
the prior and the charged offenses may ‘balance[] out the remoteness.’ [Citation.] Put
differently, if the prior offenses are very similar in nature to the charged offenses, the
prior offenses have greater probative value in proving propensity to commit the charged
39
offenses. (Id. at p. 285 [30-year gap between past and present offenses was not too
remote, given remarkable similarities between charged and uncharged offenses]; see also,
e.g., Hernandez, supra, 200 Cal.App.4th at pp. 967-968 [gap of up to 40 years between
similar offenses]; People v. Waples (2000) 79 Cal.App.4th 1389, 1395 [gap of up to 20
years between similar offenses]; Soto, supra, 64 Cal.App.4th at pp. 977-978, 991-992
[gap of up to 30 years between similar offenses]; compare Harris, supra, 60 Cal.App.4th
at pp. 738-739 [prior crime, which occurred 23 years earlier, was inflammatory “in the
extreme,” far more serious, and wholly dissimilar to charged offenses].)
Here too, there were significant similarities between the charged and uncharged
offenses. All of the offenses involved young, prepubescent, female relatives whom
appellant repeatedly molested over multiple years by touching them in the vaginal area.
He engaged in these acts primarily at his or other family members’ homes, in private, but
often with other people nearby. Although, as discussed earlier, appellant engaged in
some additional acts with Isabel and Victoria, the charged and uncharged offenses are
nonetheless “remarkably similar.” (Branch, supra, 91 Cal.App.4th at p. 285.)
Accordingly, the substantial similarities between the charged and uncharged offenses
balanced out the remoteness of the prior offenses. (See ibid.)
Fourth, appellant asserts that he was prejudiced by the fact that Isabel’s and
Victoria’s testimony, which covered 65 pages of reporter’s transcript, consumed more
time—i.e., two additional pages of reporter’s transcript—than did Jane’s testimony. This
was not an undue consumption of time, especially given that presentation of all of the
testimony at trial consumed approximately 580 pages, which means the prior offenses
testimony took up less than 12 percent of the total testimony. (See People v. Frazier
(2001) 89 Cal.App.4th 30, 42 [defendant was not prejudiced by amount of time it took to
present evidence of uncharged crimes where evidence related to those crimes consumed
27 percent of total trial transcript].)
In sum, we conclude the trial court did not abuse its discretion when it determined
that the danger of undue prejudice did not outweigh the probative value of the prior
sexual offense evidence in demonstrating appellant’s disposition to commit the charged
40
offenses. (See Evid. Code, §§ 1108, 352; Falsetta, supra, 21 Cal.4th at pp. 917-918;
Branch, supra, 91 Cal.App.4th at p. 282.)25
III. Restitution for Noneconomic and Economic Damages
Appellant contends the award of $625,000 in noneconomic restitution was not
authorized by law, violated his due process rights, and constituted an abuse of discretion.
Appellant further claims that the restitution award for both economic and noneconomic
damages violated his right to a jury trial.
A. Trial Court Background
Before sentencing, the prosecutor sought victim restitution in the amount $625,000
for noneconomic damages and $5,875 for economic damages. At the sentencing hearing,
defense counsel addressed the requested restitution amounts, stating, “[i]n terms of the
defense, we are not seeking a hearing on those issues. We are conceding the economic.
They seem absolutely appropriate under the statute.
“In terms of the noneconomic, it appears to be based upon the case of People v.
Smith [(2011) 198 Cal.App.4th 415 (Smith)], which the [district attorney’s] office has
cited. . . . That was a case last year. . . . [¶] My question and my objections first, that it’s
improper under due process protections, so I protect those arguments. But most
importantly, Your Honor, there doesn’t appear to be, even in the Smith case,
substantiation for the amount. The [District Attorney’s] office is asking for not only the
period of time that the facts were based in trial and the allegations [sic], but two years—
roughly two years of litigation and an additional eight years thereafter.
“The Smith case, what the amount was based on, purely the period of abuse. So
again, I would submit on the period of abuse under the Smith case. But to suggest that
$50,000 per year while the case was being litigated appears to set up a situation where to
take the time to litigate a case or perhaps get assignment out to a courtroom would
potentially cost the defendant $50,000. So I don’t think there’s a basis in the Smith case.
25
In light of this conclusion, we also reject appellant’s claim that the court’s abuse
of discretion violated his due process rights.
41
“I’ll submit with my objections on noneconomic damages, but that they be based
upon the period of abuse that was found at the trial and not for subsequent litigation or an
additional eight years. I’m not sure of the basis for that, so I would object.”
The prosecutor responded that, just as in the case of Smith, supra, 198 Cal.App.4th
415, the prosecution was requesting $50,000 per year in noneconomic restitution from the
start of the abuse through trial, with an additional eight years of future restitution
thereafter. The prosecutor further argued, “And I think we’ve show[n] evidence of
trauma by the fact that the victim had already engaged in over two years of therapy. The
fact that at the beginning of the therapy process there were declarations from [Jane’s
mother and therapist] stating the . . . emotional trauma that she had suffered, to the point
that early in her therapy they didn’t think she would be able to emotionally testify in this
case, along [with] the fact that she continued to undergo therapy and has and still
continues to have a fear of harm from the defendant that somehow he will get up and
escape jail and he will hurt her for telling the truth and for stopping the abuse.”
The court then ruled on the restitution request as follows: “I order restitution in
the amount of $5,875 for economic losses due to the cost of providing ongoing therapy to
date for [Jane] and Mrs. [Doe].
“Also, pursuant to the request for additional restitution under the Smith formula, I
do find that it is appropriate in this case, not only for the time that you abused [Jane] for
those two years, but for the two years of this pending litigation while this child had to
wait and, frankly, worry about whether you were going to get out of jail and whether or
not she was going to have to testify and the fact that she had to testify, and also for the
psychological trauma she will no doubt continue to suffer for many years ahead.
“For all that, under the Smith formula, I am going to award $50,000 a year for a
period of 12.5 years, again, 2.5 years of having suffered the abuse at your hands, the two
years during the duration of this litigation, and an additional eight years in the future until
she is . . . 16 years of age.”
42
B. Legal Analysis
Article I, section 28, subdivision (b)(13)(A)-(C), of the California Constitution,
provides crime victims the right to restitution from criminal defendants. Section 1202.4,
subdivision (f), which implements that constitutional right, “requires the trial court to
order the defendant to pay restitution to the victim ‘in an amount established by court
order, based on the amount of loss claimed by the victim or victims or any other showing
to the court.’ ‘The defendant has the right to a hearing before a judge to dispute the
determination of the amount of restitution . . . .’ (§ 1023.4, subd. (f)(1).)” (Smith, supra,
198 Cal.App.4th at p. 431.)
Although restitution orders are generally limited to the victim’s economic
damages, under section 1202.4, subdivision (f)(3)(F), restitution shall be ordered for
“[n]oneconomic losses, including, but not limited to, psychological harm, for felony
violations of Section 288.” Unlike economic damages, which are concerned with
“objectively verifiable monetary losses” (Civ. Code, § 1431.2, subd. (b)(1)),
noneconomic damages relate to “subjective, nonmonetary losses including, but not
limited to, pain, suffering, inconvenience, mental suffering, emotional distress, loss of
society and companionship, loss of consortium, injury to reputation and humiliation.”
(Civ. Code, § 1431.2, subd. (b)(2); see Smith, supra, 198 Cal.App.4th at p. 431.)
1. The Restitution Award for Noneconomic Damages
Was Not an Unauthorized Sentence
Appellant first argues that the restitution award for noneconomic damages was not
authorized by law because he was convicted of continuous sexual abuse of a child under
the age of 14 pursuant to section 288.5, while section 1202.4, subdivision (f)(3)(F),
expressly provides for the award of noneconomic restitution “for felony violations of
Section 288” only. He further argues that, because section 288 is not a lesser included
offense of section 288.5, “his section 288.5 conviction cannot be viewed as the equivalent
43
of three section 288 convictions.”26
“Section 288.5 was enacted in 1989 in order to remedy some of the problems of
pleading, proof and jury instruction that had arisen in the prosecution of ‘resident child
molesters’ under section 288. [Citations.] It provides a severe penalty (6, 12 or 16 years
in prison) for anyone who, while residing with or having recurring access to a child under
the age of 14, engages, over [three] months or longer, in [three] or more acts of
substantial sexual conduct, as defined in section 1203.066, subdivision (b), or lewd acts
under section 288. (§ 288.5, subd. (a).) Only one count of section 288.5 may be charged
for each victim, and no other felony sex offense may be charged involving the same
victim and occurring within the charged time period. (§ 288.5, subd. (c).)” (People v.
Avina (1993) 14 Cal.App.4th 1303, 1308 (Avina).)
Appellant is correct when he observes that some violations of section 288.5 might
not also constitute violations of section 288, given that section 288 requires a specific
“intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that
person or the child,” while section 288.5 can be violated without possession of such an
intent.27 (See Avina, supra, 14 Cal.App.4th at p. 1313.) As Division Three of this
26
At oral argument, we granted the request of appellant’s counsel to provide
supplemental briefing on this issue. Both appellant and respondent submitted letter
briefs, which we have considered.
27
Section 288.5 provides in relevant part: “(a) Any person who either resides in
the same home with the minor child or has recurring access to the child, who over a
period of time, not less than three months in duration, engages in three or more acts of
substantial sexual conduct with a child under the age of 14 years at the time of the
commission of the offense, as defined in subdivision (b) of Section 1203.066, or three or
more acts of lewd or lascivious conduct, as defined in Section 288, with a child under the
age of 14 years at the time of the commission of the offense is guilty of the offense of
continuous sexual abuse of a child . . . .”
Section 1203.066, subdivision (b), defines the “substantial sexual conduct”
discussed in section 288.5 as “penetration of the vagina or rectum of either the victim or
the offender by the penis of the other or by any foreign object, oral copulation, or
masturbation of either the victim or the offender.”
Section 288, subdivision (a), provides in relevant part: “[A]ny person who
willfully and lewdly commits any lewd or lascivious act . . . upon or with the body, or
44
District explained in Avina, supra, 14 Cal.App.4th at pages 1313-1314: “Section 288
requires the specific intent of ‘arousing, appealing to, or gratifying the lust or passions or
sexual desires of [the defendant] or of the child . . . .’ A conviction for section 288.5, in
contrast, could be based upon a course of substantial sexual conduct within the meaning
of section 1203.066, subdivision (b), which requires no specific intent. . . . [S]uch acts
could be engaged in for nonsexual purposes, for example for the infliction of pain, or to
appeal to the sexual interest of a third person. Because section 288.5 could be violated
without necessarily also violating section 288, the latter is not necessarily included within
the former.”
In this case, respondent contends the jury must necessarily have found that
appellant acted with the specific intent described in section 288 when it convicted him of
violating section 288.5 because the trial court instructed the jury, pursuant to CALCRIM
No. 252, that continuous sexual abuse, as charged in count 1, and lewd and lascivious act
on a child, as charged in counts 2 and 3, “require a specific intent or mental state . . . .
For you to find a person guilty of these crimes, that person must not only intentionally
commit the prohibited act, but must do so with a specific intent and/or mental state. The
act and the specific intent and/or mental state required are explained in the instruction for
that crime.” The court then instructed the jury regarding the elements of those crimes.
(CALCRIM Nos. 1110 & 1120.)
The instruction on continuous sexual abuse, however, did not completely resolve
this issue. That instruction told the jury that, to find appellant guilty of continuous sexual
abuse, the People were required to prove, inter alia, that appellant “engaged in three or
any part or member thereof, of a child who is under the age of 14 years, with the intent of
arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or
the child, is guilty of a felony . . . .”
Under subdivision (c) of section 288.5, “[n]o other act of substantial sexual
conduct, as defined in subdivision (b) of Section 1203.066, with a child under 14 years of
age at the time of the commission of the offenses, or lewd and lascivious acts, as defined
in Section 288, involving the same victim may be charged in the same proceeding with a
charge under this section unless the other charged offense occurred outside the time
period charged under this section or the other offense is charged in the alternative.”
45
more acts of substantial sexual conduct or lewd or lascivious conduct with the child.”
(CALCRIM No. 1120.) Although the instruction described the specific intent necessary
for lewd or lascivious conduct, it merely defined “substantial sexual conduct” as
“masturbation of either the child or the perpetrator, or penetration of the child’s or
perpetrator’s vagina or rectum by the other person’s penis or any foreign object,” without
discussing the intent requirement. (Ibid.)
Finally, the court instructed the jury, pursuant to CALCRIM No. 3516, that count
1 (continuous sexual abuse) and counts 2 and 3 (lewd and lascivious acts on a child) were
alternative charges and that, if the jury found appellant guilty of count 1, it was required
to find him not guilty of counts 2 and 3.
Although we agree with appellant that CALCRIM No. 1120 left unclear the intent
required for a finding that appellant had engaged in substantial sexual conduct, we
nevertheless are convinced that, in the totality of the circumstances, it is inconceivable
that the jury could have found that appellant engaged in the acts described as substantial
sexual conduct without also finding that he possessed the specific “intent of arousing,
appealing to, or gratifying the lust, passions, or sexual desires of” himself or Jane Doe.
(§ 288, subd. (a).) That is because none of the evidence presented or arguments of
counsel during trial even hinted at the possibility that appellant had anything other than
the sexual intent described in section 288 when he touched Jane.28 Moreover, although
the jury instructions on intent were incomplete, the only intent discussed in those
instructions was specific sexual intent. Indeed, when instructing on the alternative nature
of count 1 (continuous sexual abuse) and counts 2 and 3 (lewd and lascivious act on a
28
For example, during closing argument, the prosecutor stated that the jury could
consider the testimony of appellant’s daughters and his cousin Tony “to show that
[appellant] acted with a sexual intent when he sexually abused [Jane], when he touched
her in the vagina . . . .” Again, during her rebuttal argument, the prosecutor asked the
jury: “[I]s that [the touching of Jane’s vagina] an innocuous act? Is that an act that does
not have anything to do with sexual intent or sexual gratification? I submit to you that
that is evidence that the defendant’s intent and the way he acted was sexual interest in
arousing and to [sic] appealing to either trying to arouse [Jane’s] interest which, as we
hear from the testimony, did not work, or to satisfy his own sexual interest in this case.”
46
child), after telling the jury that, if it found appellant guilty of continuous sexual abuse in
count 1, it was required to “find him not guilty of the two counts of lewd and lascivious
act upon a child. It [count 1], essentially, encompasses what’s charged in counts 2 and
3.” (Italics added.)
Hence, given the complete lack of evidence that appellant’s repeated acts of sexual
abuse were “engaged in for nonsexual purposes, for example for the infliction of pain, or
to appeal to the sexual interest of a third person” (Avina, supra, 14 Cal.App.4th at pp.
1313-1314), we conclude that the jury necessarily found that appellant possessed the
specific sexual intent described in section 288 when it found him guilty of continuous
sexual abuse under section 288.5.
Appellant asserts that, even assuming that the jury’s finding of guilt under section
288.5 constituted a finding that he had committed three or more violations of section 288,
the noneconomic restitution award was nonetheless improper because, even though
section 1202.4, subdivision (f)(3)(F), refers to “violations” rather than convictions of
section 288, an award of noneconomic restitution in this case based on unadjudicated
violations of section 288 would violate, inter alia, his constitutional rights to due process
and a jury trial. We disagree.
As already discussed, the jury in this case found appellant guilty of section 288.5
based on three or more violations of section 288. Thus, because the section 288.5
conviction necessarily encompassed violations of section 288, to hold that Jane could
have recovered noneconomic restitution had appellant been convicted of a single
violation of section 288, but may not recover such restitution after the jury found that he
had committed multiple violations of the same statute, would lead to an absurd result.
(See People v. Adames (1997) 54 Cal.App.4th 198, 212 (Adames) [“ ‘[w]e will not parse
each literal phrase of a statute if doing so contravenes the obvious underlying intent, or
leads to absurd or anomalous results’ ”]; see also Avina, supra, 14 Cal.App.4th at p. 311
[“section 288.5 focuses on ‘a series of acts occurring over a substantial period of time,
generally on the same victim and generally resulting in cumulative injury’ ”]).
47
In Adames, supra, 54 Cal.App.4th 198, the appellate court addressed a similar
issue with respect to section 1202.1, a statute mandating AIDS testing for defendants
convicted of crimes listed in subdivision (e) of the statute. The defendant in that case
was charged with and convicted of continuous sexual abuse of a child under section
288.5, which was not listed in section 1202.1, subdivision (e), although section 288 was a
listed offense. (Adames, at p. 213.) The court considered whether AIDS testing could be
ordered only when a defendant was convicted of a listed offense or whether, instead,
testing could be ordered if the conduct of which the defendant was convicted
encompassed a listed offense. (Ibid.)
The Adames court concluded: “The Legislature’s intent clearly is to require AIDS
testing of anyone who has committed ‘[l]ewd or lascivious acts with a child in violation
of Section 288[.]’ [(§ 1202.1, subd. (e)(6).)] The interpretation that restricts AIDS
testing only to convictions under section 288 leads to a patently absurd result. Logically,
the Legislature did not intend to require AIDS testing where a defendant violated section
288 under some circumstances, e.g., where he was charged with a violation of and
convicted under section 288, but not under other circumstances, e.g., where he was
convicted of section 288.5 based on multiple violations of section 288. We therefore
adopt the . . . interpretation requiring the AIDS testing mandate of section 1202.1 to
apply to a conviction which necessarily encompasses a violation of section 288.
[Citation.]” (Adames, supra, 54 Cal.App.4th at p. 213.)
Here too, we decline to adopt an interpretation of section 1202.4, subdivision
(f)(3)(F), that would lead to a “patently absurd result” (Adames, supra, 54 Cal.App.4th at
p. 213), and conclude that the trial court properly awarded Jane noneconomic restitution
based on appellant’s conviction for violating section 288.5, which, as we have found,
“necessarily encompasses” multiple violations of section 288. (Adames, at p. 213)
2. The Restitution Award Did Not Violate Appellant’s
Sixth Amendment Right to a Jury Trial
Appellant contends the trial court’s restitution award amounted to punishment and
therefore violated his Sixth Amendment right to a jury trial, pursuant to Southern Union
48
Co. v. United States (2012) 132 S.Ct. 2344 (Southern Union Co.) and Apprendi v. New
Jersey (2000) 530 U.S. 466 (Apprendi).29
In Apprendi, supra, 530 U.S. at page 490, the United States Supreme Court held
that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” In Blakeley v. Washington (2004) 542 U.S. 296, 303, the
court further explained that the “ ‘statutory maximum’ for Apprendi purposes is the
maximum sentence a judge may impose solely on the basis of the facts reflected in the
jury verdict or admitted by the defendant.” A trial court, therefore, may not impose
punishment that the jury’s verdict alone does not allow. (Id. at pp. 303-304.)
More recently, in Southern Union Co., supra, 132 S.Ct. at page 2357, the United
States Supreme Court held that Apprendi applies to the imposition of criminal fines. In
that case, the defendant company had been convicted of an environmental offense, which
called for a maximum fine of $50,000 for each day the relevant statute was violated.
(Southern Union Co., at p. 2349.) The jury had not made a specific finding as to the
number of days of violation, and the trial court therefore made that finding. (Ibid.) The
high court reversed, after holding that the trial court’s factual finding as to the number of
days the defendant committed the offense violated Apprendi. (Southern Union Co., at
p. 2357.) As the court explained: “Apprendi’s ‘core concern’ is to reserve to the jury
‘the determination of facts that warrant punishment for a specific statutory offense.’
[Citation.] That concern applies whether the sentence is a criminal fine or imprisonment
or death. Criminal fines, like these other forms of punishment, are penalties inflicted by
the sovereign for the commission of offenses.” (Southern Union Co., at p. 2351.)
California courts, however, have uniformly concluded that victim restitution is not
primarily criminal in nature. (See, e.g., People v. Pangan (2013) 213 Cal.App.4th 574,
585 [“direct victim restitution is a substitute for a civil remedy so that victims of crime do
29
Although appellant did not object in the trial court on this ground, his contention
that he was denied his right to a jury trial is exempt from the forfeiture rule. (See People
v. Tully (2012) 54 Cal.4th 952, 980, fn. 9.)
49
not need to file separate civil suits”]; People v. Millard (2009) 175 Cal.App.4th 7, 35-36
[primary purpose of a victim restitution hearing is “to provide a victim with a civil
remedy for economic losses suffered, and not to punish the defendant for his or her
crime”]; People v. Harvest (2000) 84 Cal.App.4th 641, 648-649 [“Although restitution
has an element of deterrence [citation], the primary purpose of victim restitution is to
provide monetary compensation to an individual injured by crime”].) As the cases point
out, the chief purpose of a victim restitution order is to compensate the victim for losses,
not to punish the defendant for the offense committed. (Compare Southern Union Co.,
supra, 132 S.Ct. at p. 2350 [criminal fines are penalties imposed by the state based on
commission of offenses].)
In addition, victim restitution is distinguishable from a criminal fine in that a fine
has a statutory maximum as to the amount of money that may be ordered paid. With
victim restitution, the purpose of which is full reimbursement for all losses incurred, there
is no specified limit on the amount that may be awarded. (People v. Harvest, supra, 84
Cal.App.4th at p. 647.) Thus, victim restitution orders—whether for economic or
noneconomic losses—are simply not comparable to criminal fines. Accordingly, just as
there can be no Apprendi violation where the trial court imposes a restitution fine within
the range prescribed by statute (see Southern Union Co., supra, 132 S.Ct. at p. 2353;
People v. Kramis (2012) 209 Cal.App.4th 346, 351), there can be no such violation where
the court orders victim restitution, for which “no maximum is prescribed.” (Southern
Union Co., at p. 2353 [observing that there can “be [no] Apprendi violation where no
[statutory] maximum is prescribed”]; cf. United States v. Phillips (9th Cir. 2012) 704
F.3d 754, 770-771 [distinguishing Southern Union Co., by observing, in context of
criminal forfeiture, that “[a] judge cannot exceed his constitutional authority by imposing
a punishment beyond the statutory maximum if there is no statutory maximum”].)
For these reasons, appellant was not entitled to a jury trial on the amount of victim
restitution to be ordered pursuant to section 1202.4.
50
3. The Restitution Award Did Not Violate Appellant’s Due Process Rights
Appellant next argues that the trial court erred and violated his due process rights
by awarding noneconomic restitution to Jane for the time between appellant’s arrest and
trial. (See In re Lewallen (1979) 23 Cal.3d 274, 278-279 [trial court violates due process
when it treats a defendant more harshly because he or she exercises jury trial right].)
The trial court stated that, “under the Smith formula, I am going to award $50,000
a year for a period of 12.5 years, again, 2.5 years of having suffered the abuse at your
hands, the two years during the duration of this litigation, and an additional eight years in
the future until she is . . . 16 years of age.” Appellant objected to the restitution award for
the period between appellant’s arrest and his conviction.
First, we do not agree that the trial court was punishing appellant for exercising his
right to a jury trial. The court was aware of Jane’s fear of appellant and fear of testifying,
from the time she reported the abuse onward. The court also found that Jane would
continue to feel the effects of the abuse for many years after it occurred, not just until
appellant was convicted. The period of litigation was thus merely one phase in the years
of suffering the court found that Jane had experienced in the past and would continue to
experience in the future as a result of the abuse. Second, as the appellate court in Smith
explained: “We are not concerned with the court’s statements in making the award. As
would a jury, the court was searching for some way to quantify [the victim’s] pain and
suffering.” (Smith, supra, 198 Cal.App.4th at p. 437.)30 Here, the trial court did not err
in awarding noneconomic restitution to Jane for the ongoing trauma she suffered as a
result of appellant’s conduct, both before and after his conviction.
30
In Smith, the trial court had stated that it was awarding the victim $50,000 per
year in noneconomic restitution for 15 years of sexual abuse, which ended when she was
23. The defendant argued that this award was improper, since the defendant was
convicted of only seven years of abuse, until the victim turned 15. The appellate court
found no abuse of discretion, stating that there was no credible argument that the victim’s
“psychological harm ended when she was 15 years old.” (Smith, supra, 198 Cal.App.4th
at p. 437.)
51
4. The Trial Court Did Not Abuse Its Discretion
Appellant’s final restitution-related contention is that the trial court’s award of
$625,000 in noneconomic damages constituted an abuse of discretion.
The trial court awarded Jane $50,000 per year in restitution for a total of 12.5
years, which included the two and one-half years of abuse, the two years between her
report of the abuse and appellant’s conviction, and an additional eight years, until she
turned 16, to compensate her “for the psychological trauma she will no doubt continue to
suffer for many years ahead.” Appellant objected, and argued that the noneconomic
restitution should be limited to the years during which Jane was abused.
“Generally speaking, restitution awards are vested in the trial court’s discretion
and will be disturbed on appeal only when the appellant has shown an abuse of
discretion. [Citation.] . . . ‘ “While it is not required to make an order in keeping with
the exact amount of loss, the trial court must use a rational method that could reasonably
be said to make the victim whole, and may not make an order which is arbitrary or
capricious.” ’ [Citation.] ‘ “When there is a factual and rational basis for the amount of
restitution ordered by the trial court, no abuse of discretion will be found by the
reviewing court.” ’ [Citation.]” (People v. Holmberg (2011) 195 Cal.App.4th 1310,
1320.)
In Smith, supra, 198 Cal.App.4th at page 436, the appellate court found that this
standard was not applicable to victim restitution for noneconomic losses since, “[u]nlike
restitution for economic loss, . . . [restitution] for noneconomic loss is subjectively
quantified.” The Smith court adopted a standard of review based on the civil jury
instruction regarding noneconomic loss. (Smith, at p. 436, quoting CACI No. 3905A
(2009 ed.) [“ ‘No fixed standard exists for deciding the amount of these damages. You
must use your judgment to decide a reasonable amount based on the evidence and your
common sense’ ”].) As the Smith court explained: “The obvious difference between the
review of a civil award of noneconomic damages and a criminal restitution order for
noneconomic damages is that the trial court, not a jury, makes the determination in the
first instance. Even with that difference in mind, we see no reason to adopt any other
52
standard of review. We therefore affirm a restitution order for noneconomic damages
that does not, at first blush, shock the conscience or suggest passion, prejudice or
corruption on the part of the trial court. [¶] Admittedly, this standard is not as delimited
as the review of a restitution order for economic damages. By their nature, economic
damages are quantifiable and thus awards of economic damages are readily reviewed for
whether they are ‘rationally designed to determine the . . . victim’s economic loss.’
[Citation.] Noneconomic damages, however, require more subjective considerations.
Thus, the different standard is justified.” (Smith, at p. 436.)
Applying this different standard, the Smith court held that the trial court did not
abuse its discretion when it ordered the defendant to pay $750,000 in restitution for
noneconomic losses to the victim who had suffered years of sexual abuse. (Smith, supra,
198 Cal.App.4th at p. 436.) We agree with the court in Smith that the standard of review
for restitution orders for economic losses is not directly applicable to review of an order
for noneconomic losses, which requires a more subjective analysis.
In this case, the molestation of Jane Doe began when she was four years old, and
continued for two and one-half years, until she reported the abuse to her parents at age
six. Her abuser was her “Uncle Al,” a close and beloved family member, who had
repeated access to Jane over some of the most vulnerable years of her short life because
of the family’s complete trust in him. There is evidence in the record of Jane’s
psychological trauma during the years of and immediately after the abuse. There is of
course no evidence in the record of what the future will hold for Jane. It would, however,
be naïve to assume that there will be no continuing psychological and emotional
repercussions after suffering such lengthy abuse, at such a tender age, by a much-loved
relative. In light of the evidence in the record of appellant’s betrayal and its inevitably
traumatic effects on Jane, we conclude the restitution order in this case, which includes
the upcoming years only until Jane turns 16, does not “shock the conscience or suggest
passion, prejudice or corruption on the part of the trial court.” (Smith, supra, 198
Cal.App.4th at p. 436.) There was no abuse of discretion.
53
DISPOSITION
The judgment is affirmed.
54
_________________________
Kline, P.J.
We concur:
_________________________
Stewart, J.
_________________________
Miller, J.
55 | 01-03-2023 | 05-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2799401/ | Filed 5/7/15 Graham v. American Golf CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
JACK GRAHAM, B240340, B241341, B245011
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC458571)
v.
AMERICAN GOLF CORPORATION
et al.,
Defendants and Respondents.
APPEALS from judgments of the Superior Court of Los Angeles County. Luis A.
Lavin and Barbara Ann Meiers, Judges. Affirmed.
Jack Graham, in pro. per., for Plaintiff and Appellant.
Lee Tran & Liang, James Lee and Joe H. Tuffaha for Defendants and
Respondents.
___________
Plaintiff Jack Graham, who is self-represented, appeals from judgments dismissing
certain defendants after Judge Lavin sustained their demurrers and a judgment entered
after Judge Meiers granted summary judgment in favor of other defendants. The subject
of these rulings was Graham’s claims that defendants illegally charged the public for golf
services on public golf courses and deprived him of his right to work as a golf instructor
at Los Angeles County (County) and City of Long Beach (City) golf courses managed by
American Golf Corporation (American Golf). Graham also sued Goldman Sachs Group,
Inc., as American Golf’s alleged alter ego.
Graham argues that Judges Lavin and Meiers erred in making the above rulings.
He also asserts that this case is subject to an automatic stay and that Judge Meiers erred
in refusing to stay the case while his appeals from Judge Lavin’s demurrer rulings were
pending. Finally, he claims for the first time on appeal that Judge Meiers should be
recused.
We conclude that the matter was not subject to an automatic stay and that the trial
court did not err in sustaining the demurrers, granting summary judgment, and refusing to
stay the case before ruling on the summary judgment motions. We also conclude that
Graham’s recusal request fails for not following the required procedures. Accordingly,
we affirm.
BACKGROUND
The verified first amended complaint
Graham filed a complaint in BC458571 in the superior court on April 1, 2011.1
He filed a verified first amended complaint (FAC) in the same action on May 17, 2011,
against the County and several County officials and employees (County defendants); the
City and its elected officials and employees (City defendants); American Golf; several
American Golf officers (American Golf individual defendants); the Goldman Sachs
Group, Inc., GS Capital Partners 2000 L.P., Lloyd Blankfein, Thomas Ferguson, and
1
We note that Graham also filed a complaint in the superior court in BC425995
on November 13, 2009, which he voluntarily dismissed without prejudice on January 5,
2011.
2
Whitehall Street Global Real Estate Limited Partnership 2001 (Goldman Sachs
defendants); and Starwood Capital Group, LLC, SOF V1 U.S. Holdings, LLC, Barry S.
Sternlicht, National Golf Operating Partnership, David G. Price, and Kimberly Wong
(related entity defendants). Some of the corporate and individual defendants were never
served.
Graham alleged causes of action in the FAC against all defendants for:
(1) violation of the “right of Expression and Speech” under the California Constitution;
(2) violation of his fundamental right to work as a golf instructor; (3) violation of his
right of equal protection under the California Constitution; (4) violation of the Unfair
Practices Act (Bus. & Prof. Code, § 17000 et seq.); (5) violation of the Cartwright Act
(Bus. & Prof. Code, § 16700 et seq.); (6) violation of the Bane Act (Civ. Code, § 52.1);
(7) public nuisance; (8) “Unfair Competition Law Act,” violation of Business and
Professions Code section 17200 et seq.; (9) public nuisance; (10) “Unfair Competition
Law Act,” violation of Business and Professions Code section 17200 et seq.; (11) fraud;
and (12) government waste.
Graham alleged “two primary rights at issue”: the public’s right to golf services at
City- and County-owned golf courses not exceeding the actual cost of providing those
services, and his right to give golf lessons at these courses. He alleged that defendants
acted in concert to waste government resources, restrain and monopolize the golf
instruction industry, maintain a public nuisance, invest in golf course management,
manage golf courses, and overcharge the public for golf services. Only golf instructors
who were employees of American Golf could teach at the City- and County-owned golf
courses and there were no golf courses in his local area at which he could teach.
The FAC is 123 pages in length, exclusive of attached exhibits. We thus
summarize those portions of the FAC pertinent to this appeal.
Graham alleged that he filed a tort claim against the County on May 3, 2008,
which the County rejected on August 29, 2008. Graham further alleged that the County’s
notice of rejection was served on him on September 11, 2008. He alleged that he filed a
3
tort claim against the City on December 15, 2008, which the City rejected on February 3,
2009.
He also averred that he “filed” a lawsuit in the federal district court for the Central
District of California (district court) on March 10, 2009,2 and that he did so within the
six-month deadline required by the Tort Claims Act (Gov. Code, § 900 et seq.). The
record reveals that the district court initially refused to file Graham’s complaint, which
was only lodged on March 10, 2009, as well as a fee waiver request, because Graham had
failed to include “a ‘short and plain statement’ of the claims as required by Fed.R.Civ.P.
8(a).”
The record also reveals that the complaint Graham lodged on March 10, 2009, just
within a day or so of the expiration of the Tort Claims Act deadline, was in a federal case
(CV09 01684) different from the federal case in which a different complaint was actually
filed (CV09 04794) on July 2, 2009, after the six-month deadline had long expired. The
July 2, 2009 complaint bears a stamp indicating that Graham paid a filing fee in that case.
The record further reveals that the complaints filed in the two different federal cases were
not the same. As illustrative only, the complaint filed on July 2, 2009, contains causes of
action for public nuisance and fraud and a taxpayer claim under Code of Civil Procedure
section 526a3 that were not in the complaint that Graham lodged in a different case on
March 10, 2009, and that the district court rejected for filing.4
2
Graham alleged a March 10, 2008 date, which clearly was a typographical error
given that a 2008 date would have predated notice of rejection from the County. The
record of the lodged complaint in district court confirms that the 2008 date was a
typographical error.
3
Graham alleged violation of Civil Code section 526a, which does not exist. We
understand him to be referring to Code of Civil Procedure section 526a.
4
The record does not reveal what, if anything, further happened in the federal case
in which Graham lodged his first federal complaint. The civil docket sheet for that case,
of which we take judicial notice (see fn. 5, post), does not indicate any further
proceedings.
4
On October 16, 2009, the district court in CV09 04794 dismissed Graham’s
federal claims (asserting First Amendment, equal protection under the Fourteenth
Amendment, and federal antitrust claims) and declined to exercise supplemental
jurisdiction over state claims that Graham had alleged in the FAC were “essentially the
same claims set out in this state court action.” On October 29, 2009, Graham filed a
notice of appeal in the Ninth Circuit Court of Appeals (Ninth Circuit).5
In his “Informal Opening Brief” filed in the Ninth Circuit on April 13, 2010,
Graham stated that he was appealing only from the district court’s ruling regarding his
federal claims: “[T]he district court judge wants the state law claims to be dealt with in
the state court forum.[6] And Graham is fine with that, and already filed a state court
action on the state law claims over which the district court judge declined to exercise
supplemental jurisdiction. Indeed, Graham is not appealing the district court judge’s
choice to not exercise supplemental jurisdiction over the state law claims.”
On March 7, 2011, Graham filed a “Notice to the 9th Circuit Court of Change in
Circumstances Possibly Relevant to the Appeal Decision,” dated March 4, 2011, in which
he retracted his earlier statement that he was not appealing from the district court’s ruling
regarding his state law claims. Apparently Graham changed his mind after the superior
court stayed Graham’s first state court case pending Graham’s federal appeal.
On March 4, 2011, the Ninth Circuit affirmed the district court’s rulings, although
Graham alleges erroneously so.7 As noted above, Graham filed his complaint in the
superior court in the case before us on April 1, 2011.
5 Pursuant to Evidence Code section 452, subdivision (d), we take judicial notice
of the records of the district court and Ninth Circuit referenced herein.
6 Graham was apparently referring to the complaint that he filed in a different
superior court case on November 13, 2009, which he voluntarily dismissed on January 5,
2011, without prejudice. (See fn. 1, ante.)
7 We take judicial notice of the Ninth Circuit’s docket in Graham’s appeal
indicating that Graham’s efforts to seek rehearing in the Ninth Circuit and his petition for
writ of certiorari in the United States Supreme Court were denied.
5
In the FAC in the current case, Graham alleged a fraud claim against all “the
named Defendants.” He averred that defendants charged him and the public fees for golf
services in excess of 300 percent to 500 percent of the cost of providing those services, in
violation of Government Code section 50402, subdivision (a).8 Defendants knew that
they violated Government Code section 50402, subdivision (a) and withheld from the
public “the mandate of” Government Code section 50402, subdivision (a) and their price-
gouging practices. Defendants intended to defraud Graham and the public in order to
make profits.
As proof, he attached as exhibit D documents purportedly demonstrating that the
director of parks and recreation for the County reported to the County board of
supervisors that Government Code section 50402, subdivision (a) was satisfied as long as
the fees charged were in keeping with prevailing market rates. He further alleged that
City council members, the director of parks and recreation for the City, and American
Golf charged golf fees based on market rates rather than the cost of providing golf
services, as required by Government Code section 50402, subdivision (a). Graham and
the public were unaware of the mandate of Government Code section 50402, subdivision
(a) and reasonably relied on defendants to charge lawful amounts for golf services.
Graham was damaged in the amount of “about $5,000” in excess fees, and the public has
been damaged in the amount of “many millions of dollars.”
Graham asserted alter ego claims against American Golf “as being nothing more
than an ‘instrumentality’ of its parents,” which were Goldman Sachs Group, Starwood
Capital Group, LLC, Goldman Sachs Group’s GS Capital Partners 2000 L.P., Goldman
Sachs Group’s Whitehall Street Global Real Estate Limited Partnership 2001, Starwood
8 Government Code section 50402, subdivision (a) provides: “(a) A city, county,
or city and county owning property or leasing property which is devoted to park,
amusement, or recreational purposes may make a charge for use or services provided
therein in the amount as may be provided by resolution by the governing body. No
charge shall be imposed which exceeds the cost of the service provided. To the extent
feasible, charges for similar uses or services imposed by a governing body pursuant to
this section shall be uniform throughout its area of jurisdiction.”
6
Capital Group’s SOF VI U.S. Holdings, LLC, and National Golf Operating Partnership.
According to the FAC, American Golf was registered as a corporation in the State of
California, maintained headquarters in Santa Monica, and had its own corporate officers
separate from the Goldman Sachs defendants. The FAC alleged that the Goldman Sachs
defendants “use[d] [American Golf] as an ‘instrumentality,’ which it clearly is, and to
facilitate and perpetrate such unlawful, corrupt, and deceitful activities as the scheme
described in this Complaint.” American Golf “is without hard assets, and without cash,
and sends all its profits . . . right back to its parents.” “There is a unity of interest and
ownership between [American Golf] and its parents such that the separate personalities
. . . do not truly exist.”
Graham prayed for actual and punitive damages, “restitutionary disgorgement,”
declaratory relief, injunctive relief, and costs of suit and attorney fees.
The demurrers to the FAC
On August 26, 2011, the Goldman Sachs defendants demurred to all 12 causes of
action.9 So did American Golf. The City defendants and the County defendants also
demurred to all 12 causes of action. The related entity defendants filed a joinder to the
Goldman Sachs demurrer. Judge Lavin heard the demurrers on January 9, 2012, and
issued his rulings on January 23, 2012.
Graham sought judicial notice of several documents. Pertinent to this appeal,
Judge Lavin denied Graham’s request for judicial notice as to Graham’s exhibit H.
Exhibit H was the County’s notice of rejection of Graham’s tort claims. Exhibit H
included a copy of a letter from the County dated September 3, 2008, informing Graham
that his claim filed on May 3, 2008, was rejected. It also included copies of a declaration
of service by mail indicating that the notice of denial of claim was mailed on
September 4, 2008, to a street number address of “547” as well as an envelope addressed
to the same street number with a “return to sender” postal sticker on it. Exhibit H also
9According to the demurrer, one of the Goldman Sachs defendants, Whitehall
Street Global Real Estate Limited Partnership 2001, was never served, but the demurrer
applied with equal force to it.
7
included copies of a declaration of service by mail indicating that the notice of denial of
claim was mailed on September 11, 2008, to a street number address of “5447.”
On January 23, 2012, Judge Lavin sustained American Golf’s demurrer without
leave to amend as to the 10th (unfair competition) and 12th (government waste)10 causes
of action for failure to state a claim because they “may not be asserted against a private
entity.” He sustained the demurrer with leave to amend as to the 11th (fraud) cause of
action. Judge Lavin stated that Graham failed to plead his fraud claim “with the required
specificity or failed to allege justifiable reliance.” Judge Lavin overruled the demurrer as
to the remaining causes of action against American Golf because the moving party had
“not addressed certain aspects of the claims,” “the claims were not resolved in the prior
federal court litigation, or the claims may not be resolved at this stage of the litigation.”
Judge Lavin sustained the Goldman Sachs defendants’ demurrer in its entirety,
with 10 days’ leave to amend, for failure to state a viable legal theory and because the
alter ego allegations were “conclusory.”
Judge Lavin sustained the County defendants’ demurrer without leave to amend as
to the fifth (violation of the Cartwright Act), eighth (unfair competition), and 10th (unfair
competition) causes of action on the basis of immunity. He sustained the County
defendants’ demurrer with 10 days’ leave to amend as to the remaining causes of action.
The order stated, “According to paragraph 148 in the FAC, the County rejected Plaintiff’s
claim on May 3, 2008. The federal lawsuit was not filed until July 2, 2009, or more than
six months after his claim was rejected. Thus, even if the filing of the federal lawsuit
tolled the statute of limitations for filing this state court lawsuit, Plaintiff’s claims as to
these defendants are time-barred. To the extent that Plaintiff is relying on a different date
for presentation of his claim to the County, leave to amend is granted.”
10 Graham disclaims appealing from Judge Lavin’s ruling as to the 8th (unfair
competition), 10th (unfair competition), and 12th (government waste) causes of action,
but instead “reserve[d]” his appeal as to those claims for “later in time.” We therefore do
not address these causes of action.
8
Judge Lavin also sustained the City defendants’ demurrer without leave to amend
as to the fifth (violation of the Cartwright Act), eighth (unfair competition) and 10th
(unfair competition) causes of action on the basis of immunity. He sustained the City
defendants’ demurrer with 10 days’ leave to amend as to the 11th (fraud) cause of action
for failure to plead fraud with specificity and to plead justifiable reliance. The trial court
overruled the City defendants’ demurrer as to the remaining causes of action because the
claims were not “time-barred or the Court cannot determine at this time whether they
should have been presented to the City of Long Beach at an earlier time.” Finally, Judge
Lavin sustained the related defendants’ demurrer with 10 days’ leave to amend.
Graham did not file an amended complaint. On February 14, 2012, American
Golf filed a notice of ruling of Judge Lavin’s demurrer rulings.
Thus, the first, second, third, fourth, fifth, sixth, seventh, eighth, and ninth causes
of action remained as to American Golf and its officers. The first, second, third, fourth,
sixth, seventh, ninth, and 12th causes of action remained as to the City defendants.
The April 2 and May 11, 2012 appeals
On April 2, 2012, Graham filed a notice of appeal from a “[j]udgment of dismissal
after an order sustaining a demurrer” that was “entered on . . . January 23, 2012.” On
April 13, 2012, the trial court filed a judgment of dismissal with respect to the claims
against the Goldman Sachs and related entity defendants, as well as the County
defendants on the basis that the time to amend had expired without Graham’s having filed
an amended complaint. Graham filed a notice of appeal as to the April 13, 2012
judgment of dismissal on May 11, 2012.
On May 25, 2012, the American Golf defendants and the City defendants filed a
verified answer to the remaining claims.
The summary judgment motions
American Golf’s motion for summary judgment
American Golf filed a motion for summary judgment on July 2, 2012. American
Golf argued that the following causes of action failed as a matter of law. The first cause
of action for violation of right of expression and speech failed because American Golf’s
9
policy relating to golf instruction services was reasonable and viewpoint neutral. The
second cause of action for violation of the alleged fundamental right to work failed
because no such right exists and American Golf had not prevented Graham from working
as a golf instructor in the City. The third cause of action for violation of equal protection
failed because Graham’s rights under the equal protection and privileges and immunities
clauses had not been violated. The fourth cause of action for violation of the unfair
practices law failed because American Golf did not have a monopoly over the golf
instruction industry in the City. The fifth cause of action for violation of the Cartwright
Act failed because there was no evidence that American Golf acted in concert with a
separate and independent entity to restrain trade. The seventh cause of action for public
nuisance failed because the alleged conduct did not constitute a nuisance, California
statutes authorized American Golf’s conduct, and Government Code section 50402 did
not apply to American Golf. The eighth cause of action for violation of the unfair
competition law failed because it was based on the same legal duties underlying
Graham’s deficient predicate claims of anticompetition in the golf lesson market. The
ninth cause of action for public nuisance failed because Graham had not suffered an
injury different in kind from any injury to the general public, the alleged conduct did not
constitute a nuisance, California statutes authorized American Golf’s conduct, and
Government Code section 50402 did not apply to American Golf.
In addition, American Golf argued that the sixth cause of action for violation of
the Bane Act failed because there was no evidence that American Golf coerced or
interfered with Graham’s alleged legal rights independent from the deprivation of his
alleged legal rights.
Graham did not file an opposition to the motion for summary judgment.
On September 12, 2012, Judge Meiers granted American Golf’s motion in its
entirety for the reasons stated in its motion and ordered American Golf to prepare a
written order reflecting the bases asserted in the moving papers. American Golf prepared
the order, which was signed and filed on September 25, 2012.
10
The City defendants’ motion for summary judgment
The City defendants filed a motion for summary judgment on July 2, 2012. The
grounds were similar to those in American Golf’s motion.
The first cause of action for violation of the right of expression and speech failed
because American Golf’s policy relating to golf instruction services was reasonable and
viewpoint neutral. The second cause of action for violation of the fundamental right to
work failed because of the absence of any such right. The third cause of action for
violation of equal protection failed because American Golf’s policy relating to golf
instruction services was reasonable and viewpoint neutral. The fourth cause of action for
violation of the unfair practices law failed because it was based on the same legal duties
underlying Graham’s deficient predicate claims. The sixth cause of action for violation
of the Bane Act failed because Graham could not establish a violation of his rights under
the California Constitution and the City defendants were immune from liability under
Government Code section 520.6. The seventh cause of action for public nuisance failed
because the City defendants’ conduct was authorized by law, Graham lacked standing to
assert a claim for public nuisance, and the alleged conduct did not constitute a nuisance.
The ninth cause of action for public nuisance failed because the City defendants’ conduct
was authorized by law, Graham lacked standing to assert a claim for public nuisance, and
the alleged conduct did not constitute a nuisance. The 12th cause of action for
government waste failed because Graham lacked standing, the City had discretion to
lease the golf courses under the doctrine of separation of powers, and there was no gift of
public funds.
The City defendants also argued that Graham’s claim for punitive damages was
subject to summary adjudication because the City was immune from punitive damages.
On September 12, 2012, Judge Meiers granted the City defendants’ motion in its
entirety for the reasons stated in the motion and ordered the City defendants to prepare a
written order reflecting her rulings based on the arguments in the moving papers. The
City defendants prepared the order, which was signed and filed on September 25, 2012.
11
Judge Meiers’s sua sponte motions
On August 31, 2012, Judge Meiers made a sua sponte motion for judgment on the
pleadings and a motion to strike irrelevant, false, or improper matter pursuant to Code of
Civil Procedure sections 438 and 436, respectively. The court stated: “[U]nder [Code of
Civil Procedure section] 438, the court is of the tentative view that the entire complaint
ought possibly to be dismissed for failure to state a cause of action as to any defendant.
. . . If the motions for summary judgment are granted, there would seem to be little
purpose in having additional ‘Doe’ defendants still remaining or other defendants who
have been named but not yet appeared in the case additionally subject in the future to
responding to the existing complaint only to have to re-litigate issues which have already
been adjudicated with respect to the plaintiff’s claims and tested by other defendants.”
She set a briefing schedule on these motions and set the hearing for September 12, 2012,
the same date as the continued hearing date for Graham’s stay motion discussed below.
On September 12, 2012, Judge Meiers granted judgment on the pleadings “as to
all defendants and all causes of action not yet dismissed or the subject already of
summary adjudication/judgment including, but not limited to all Does, all unserved and
served defendants, all who have answered and all who have not yet answered.” (Final
judgment entered on March 13, 2013.)11 Judge Meiers observed that if she granted the
judgment on the pleadings as to “all the Does and the unserved parties,” the appeals could
be “consolidated and heard at one time.” She granted the judgment on the pleadings
“based on all the law and arguments cited in the previously filed demurrers as well as all
of the law cited in the Summary Judgment/Adjudication Motions.”
Graham’s application for a stay
On August 13, 2012, Graham filed an ex parte application for a stay for additional
time to oppose the motions for summary judgment. His application was based on the
11 We note that the final judgment is not in the record. On our own motion, we
take judicial notice of that document in the superior court’s file. (Evid. Code, § 452.)
12
volume of the two summary judgment motions and his “interlocutory” appeals of the
January 23, 2012 and April 13, 2012 judgments of dismissal.
On August 31, 2012, Judge Meiers continued the hearing on Graham’s stay
motion to September 12, 2012. She stated: “Plaintiff’s motion to stay this case to await
the outcome of pending appeals remains under submission and will be ruled upon on
September 12, 2012 when many other matters are before the court for hearing. Plaintiff
remains expected to file all papers due from plaintiff in a timely manner in light of the
court’s earlier tentative to deny the stay motion and in light of the fact that no stay has . . .
been ordered. [¶] In addition, if there is no stay ordered, the court will be ruling on
summary judgment/adjudication motions on that date.”
On September 5, 2012, Graham filed a petition for a writ of supersedeas
requesting a stay, which we denied on September 13, 2012.
On September 12, 2012, Judge Meiers denied Graham’s motion for a stay, stating:
“[T]he parties are not all tied together in such a way that any decision on another
defendant’s effort to get out of the case would in any way affect the posture of appeals
with regard to another group of defendants who have issues of demurrers, or dismissals
for failure to serve.” With respect to the denial of Graham’s motion for a stay, Judge
Meiers also observed that if she granted the two motions for summary judgment, the
appeals could be consolidated and heard at one time.
On November 7, 2012, Graham filed a notice of appeal from the entry of the
summary judgment. That judgment, however, was entered only on March 13, 2013.12
On March 5, 2013, we consolidated the appeals filed on April 2, 2012, May 11, 2012, and
November 7, 2012.
12 We take judicial notice of the entry of judgment on March 13, 2013, in the
superior court’s file. We treat Graham’s November 7, 2012 notice of appeal as a valid
premature notice of appeal. (Cal. Rules of Court, rule 8.104 (d) [notice of appeal filed
after judgment rendered but before entered is valid and treated as filed immediately after
entry of judgment]; First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956,
958–959.)
13
Proceedings after oral argument
After oral argument, we requested briefing pursuant to Government Code section
68081 on whether Graham’s lodging of a complaint in the district court on March 10,
2009, tolled the running of the six-month deadline for filing his claim under the Tort
Claims Act even though Graham’s complaint was formally filed only on July 2, 2009,
which was after the latter deadline had expired. We also asked for briefing on tolling, if
any, under 28 United States Code section 1367(d). We received Graham’s and
defendants’ responses on March 30, 2015.
DISCUSSION
Graham must demonstrate error on appeal
An appellant’s responsibility on appeal is to demonstrate error and support his or
her argument by citation to the record and to applicable legal authority. (Bains v. Moores
(2009) 172 Cal.App.4th 445, 455.) We examine Graham’s arguments, keeping in mind
the appellate principle that we are not required to review undeveloped claims or to make
arguments for the parties. (Paterno v. State of California (1999) 74 Cal.App.4th 68,
106.) When a brief fails to contain legal argument with citation of the applicable
authorities, we may treat the argument as waived. (Ellenberger v. Espinosa (1994)
30 Cal.App.4th 943, 948.) Similarly, a party’s failure to support an argument with the
necessary citations to the record results in waiver of the argument. (Nwosu v. Uba (2004)
122 Cal.App.4th 1229, 1246.) A self-represented party is subject to the same rules as a
party who is represented by counsel. (City of Los Angeles v. Glair (2007) 153
Cal.App.4th 813, 819.)
Judge Meiers properly found that the remaining proceedings should not be stayed
We reject Graham’s contention that an automatic stay prevented Judge Meiers
from hearing the motions for summary judgment. Graham claims that because he filed a
notice of appeal as to the order dismissing the Goldman Sachs defendants and the County
defendants, he was entitled to an automatic stay of all proceedings still in the trial court
under Code of Civil Procedure section 916, subdivision (a).
14
While “[a]n order sustaining a demurrer is usually not immediately appealable,
because it is not on its face a final judgment . . . it may be treated as a judgment for
purposes of appeal when, like a formal judgment, it disposes of the action and precludes
further proceedings.” (Thaler v. Household Finance Corp. (2000) 80 Cal.App.4th 1093,
1098 (Thaler).)
On April 2, 2012, Graham filed a notice of appeal from a “[j]udgment of dismissal
after an order sustaining a demurrer” that was “entered on . . . January 23, 2012.” On
April 13, 2012, the trial court filed an order of dismissal against the Goldman Sachs
defendants and the County defendants. They were the only parties against whom Graham
could have pursued an appeal at that time because the demurrer rulings eliminated all of
Graham’s claims against those parties. (Thaler, supra, 80 Cal.App.4th at p. 1098.) To
the extent Graham may have been attempting to file a notice of appeal from that part of
the order sustaining the demurrers of the American Golf defendants and the City
defendants, such an appeal would have been premature because there were claims
remaining in the trial court as to those defendants. (Ibid.)
Code of Civil Procedure section 916, subdivision (a) provides in pertinent part that
“the perfecting of an appeal stays proceedings in the trial court upon the judgment or
order appealed from or upon the matters embraced therein or affected thereby, including
enforcement of the judgment or order, but the trial court may proceed upon any other
matter embraced in the action and not affected by the judgment or order.”
“‘[W]hether a matter is “embraced” in or “affected” by a judgment [or order]
within the meaning of [section 916] depends on whether postjudgment [or postorder]
proceedings on the matter would have any effect on the “effectiveness” of the appeal.’
[Citation.]” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189.) “‘The
purpose of the automatic stay rule is “to protect the appellate court’s jurisdiction by
preserving the status quo until the appeal is decided. The rule prevents the trial court
from rendering an appeal futile by altering the appealed judgment or order by conducting
other proceedings that may affect it.”’ [Citation.]” (Chapala Management Corp. v.
15
Stanton (2010) 186 Cal.App.4th 1532, 1542.) Our focus thus is on whether allowing the
remaining claims to proceed in the trial court would have affected the appeals.13
We assume, without deciding, that our review is de novo because whether the
automatic stay in Code of Civil Procedure section 916, subdivision (a) applied to the
proceedings remaining in the trial court affected the trial court’s jurisdiction to proceed.
Here, after the dismissal of the Goldman Sachs defendants and the County
defendants, the remaining appearing defendants were the City and the American Golf
defendants. Graham has not articulated how the proceedings against the City and
American Golf in the trial court would have affected the appeals. As an appellant, it is
Graham’s burden to do so or forfeit his argument. We fail to discern how the alter ego
and other issues on appeal from Judge Lavin’s demurrer rulings would have been
impacted by the proceedings then pending before Judge Meiers, and Graham has not
carried his burden to demonstrate otherwise.
To the extent Graham argues that Judge Meiers abused her discretion in denying
his ex parte application for temporary stay, we disagree. Code of Civil Procedure section
918, subdivision (a) gives the trial court discretionary power to stay the enforcement of
any judgment or order, subject to certain restrictions not pertinent here. (City of Hollister
v. Monterey Ins. Co. (2008) 165 Cal.App.4th 455, 482.) On August 13, 2012, Graham
filed an ex parte application for a stay for additional time to oppose the motions for
summary judgment on the grounds that the summary judgment motions were “massive,”
his appeals from Judge Lavin’s rulings were pending, and Judge Meiers should
reconsider “sua sponte” Judge Lavin’s demurrer rulings.
On September 12, 2012, Judge Meiers denied Graham’s motion for a stay,
concluding that the parties were not “all tied together in such a way” that any decision
13For example, in Green Trees Enterprises, Inc. v. Palm Springs Alpine Estates,
Inc. (1967) 66 Cal.2d 782, the Supreme Court determined that the trial court had
continuing jurisdiction over a matter and properly extended an injunction restraining the
defendants from foreclosing their deed of trust where the plaintiff appealed from only a
portion of a judgment cutting the purchase price of the property in half. (Id. at p. 787.)
16
would affect the appeals with regard to the dismissals. She also observed that Graham
had failed to oppose the summary judgment motions even though he had filed “maybe
two hundred pages in support of request[s] for continuances.” We conclude that Judge
Meiers did not abuse her discretion in denying Graham’s motion for a stay. (Code Civ.
Proc., § 918, subd. (a) [trial court “may” stay enforcement of judgment or order]; City of
Hollister v. Monterey Ins. Co., supra, 165 Cal.App.4th at p. 482.)
The trial court did not err in sustaining the demurrers to the fraud cause of action
Graham contends the trial court erred in sustaining the demurrers with leave to
amend the 11th cause of action for fraud because he (1) pleaded his fraud claim with
sufficient specificity; (2) properly alleged justifiable reliance; and (3) was guaranteed a
jury trial on his fraud claim under article 1, section 16 of the California Constitution.
“When a plaintiff elects not to amend after the court sustains a demurrer with
leave to amend, we assume the complaint states as strong a case as possible, and we will
affirm the judgment if the unamended complaint is objectionable on any ground raised by
the demurrer. [Citation.]” (Gutkin v. University of Southern California (2002) 101
Cal.App.4th 967, 981.) Here, Graham did not amend the FAC after the demurrer was
sustained with leave to amend as to the fraud cause of action.
We examine the allegations of the FAC with the following guidelines in mind.
The elements of fraudulent misrepresentation are: “‘“(1) the defendant represented to the
plaintiff that an important fact was true; (2) that representation was false; (3) the
defendant knew that the representation was false . . . ; (4) the defendant intended the
plaintiff to rely on the representation; (5) the plaintiff reasonably relied on the
representation; (6) the plaintiff was harmed; and (7) the plaintiff’s reliance on the
defendant’s representation was a substantial factor in causing that harm to the
plaintiff.”’” (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 605–606
(Graham).)
The elements of fraudulent concealment are: “(1) concealment or suppression of a
material fact; (2) by a defendant with a duty to disclose the fact to the plaintiff; (3) the
defendant intended to defraud the plaintiff by intentionally concealing or suppressing the
17
fact; (4) the plaintiff was unaware of the fact and would not have acted . . . know[ing] of
the concealed or suppressed fact; and (5) plaintiff sustained damage as a result of the
concealment or suppression of the fact.” (Graham, supra, 226 Cal.App.4th at p. 606.)
Fraud must be pleaded with specificity. The policy of liberal construction of
pleadings will not save defective fraud allegations. (Small v. Fritz Companies, Inc.
(2003) 30 Cal.4th 167, 184.) The complaint must plead facts which “‘“‘show how, when,
where, to whom, and by what means the representations were tendered.’”’ [Citation.]”
(Ibid.)
Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772
(Goldrich) offers guidance. In that case, we affirmed the trial court’s demurrer to a
second amended complaint that merely alleged in conclusory fashion that the defendants
falsely represented to the plaintiff, physicians, and the public that the defendants’ breast
implants were safe. We concluded that the plaintiff failed to present any facts supporting
a claim of fraud; the conclusory allegations offered no facts; and it was impossible to
determine what was said or by whom, or whether statements were made in writing or
orally. (Id. at p. 783.)
Here, the FAC’s allegation that the defendants misrepresented to Graham that the
golf fees were lawful and the allegation that the golf fees were 300 percent to 500 percent
of the cost of providing services were vague and conclusory, and not fact-based. As in
Goldrich, supra, 25 Cal.App.4th 772, Graham did not allege “‘“‘how, when, where, to
whom, and by what means the representations were tendered.’”’” (Small v. Fritz
Companies, Inc., supra, 30 Cal.4th at p. 184.)
Further, Graham alleges misrepresentations were made at golf courses and “within
the resolutions” passed by the City and the County “where they daringly tell the public
they are raising the fees for golf services in accordance with Government Code section
50402, subdivision (a).” Graham’s allegation that he justifiably relied on this alleged
misrepresentation because defendants concealed the mandate of Government Code
section 50402, subdivision (a) is inconsistent with the allegation that Graham learned of
18
the mandate of Government Code section 50402, subdivision (a)—a statute which is
available to the public—by doing legal research.
The exhibits attached to the FAC also demonstrate that the setting of public golf
fees was not hidden from the public. Exhibit D to the FAC, regarding “approval of
department of parks and recreation: revised golf course greens fees (all districts)
(3 votes),” stated that the setting of the public golf fees is subject to the public hearing
notice requirements of Government Code sections 6062a (publication of notice shall be
for 10 days in a newspaper) and 66018 (public hearing requirements). That same exhibit
recites that “[i]n accordance with Section 50402 of the Government Code, these changes
must be approved by a resolution of your Board.”
Finally, Graham’s assertions that he was somehow deprived of his constitutional
right to a jury trial because the trial court sustained the demurrer is not supported by legal
argument. (Berger v. California Ins. Guarantee Assn. (2005) 128 Cal.App.4th 989,
1006–1007.) We observe that, generally speaking, when a trial court sustains a demurrer,
the court has determined that the allegations of facts are not sufficient to state a cause of
action under any legal theory, assuming all alleged facts to be true, and thus there would
be no factfinding role for the jury. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
The trial court did not err in determining that Graham’s alter ego allegations were
legally deficient
Graham contends that the trial court erred in determining the alter ego allegations
with respect to the Goldman Sachs defendants were insufficiently alleged because (1) the
FAC specifically alleged a unity of interest between the Goldman Sachs defendants and
American Golf, (2) the FAC alleged an injustice would result if an alter ego relationship
were not found; (3) the issue of alter ego liability was a question of fact for the jury to
decide; and (4) if the jury chose not to pierce the corporate veil, the doctrine of agency or
respondeat superior would apply.
“Alter ego is a limited doctrine, invoked only where recognition of the corporate
form would work an injustice to a third person. [Citation.] To prevail on a claim of ‘alter
ego,’ the third party must show (1) there is such a unity of interest that the separate
19
personalities of the corporations no longer exist; and (2) inequitable results will follow if
the corporate separateness is respected.” (Tomaselli v. Transamerica Ins. Co. (1994)
25 Cal.App.4th 1269, 1285.) Facts such as inadequate capitalization, commingling of
assets, and disregard of corporate formalities must be established to demonstrate the
fundamental element of alter ego liability: whether respecting the separate status of the
corporations would produce an inequitable result. (Ibid.)
“To justify piercing the corporate veil on an alter ego theory in order to hold a
parent corporation liable for the acts or omissions of its subsidiary, a plaintiff must show
. . . ‘specific manipulative conduct’ by the parent toward the subsidiary which ‘relegate[s]
the latter to the status of merely an instrumentality, agency, conduit or adjunct of the
former . . . .’” (Laird v. Capital Cities/ABC, Inc. (1998) 68 Cal.App.4th 727, 742,
overruled on other grounds in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 524.)
We conclude that the allegations of the FAC were merely conclusory and not fact-
based. “A complaint must set forth the facts with sufficient precision to put the defendant
on notice about what the plaintiff is complaining and what remedies are being sought.”
(Leek v. Cooper (2011) 194 Cal.App.4th 399, 415 (Leek).) “An allegation that a person
owns all of the corporate stock and makes all of the management decisions is insufficient
to cause the court to disregard the corporate entity.” (Ibid.) In Leek, the allegations that
the defendant was the owner of a Honda dealership and owned its stock and made all the
business decisions, and that other codefendants were agents and employees of each other
“neither specifically alleged alter ego liability, nor alleged facts showing a unity of
interest and inequitable result from treatment of the corporation as the sole actor.” (Ibid.)
Graham did not specifically allege facts showing a unity of interest between
American Golf and the Goldman Sachs defendants or an inequitable result if corporate
separateness were disregarded. Graham did not allege that American Golf disregarded
corporate formalities. To the contrary, Graham alleged that American Golf observed
corporate formalities in that it was registered as a corporation in the state of California,
maintained headquarters in Santa Monica, and had its own corporate officers separate
from the Goldman Sachs defendants. The FAC also did not contain specific factual
20
allegations demonstrating that American Golf was a mere instrumentality of the Goldman
Sachs defendants, or supporting an inference of manipulation of the corporate structure
by the Goldman Sachs defendants. Further, Graham failed to allege specifically any
scheme, transfers of profits, or fraud.
Fatal to Graham’s alter ego claims was his failure to allege with specificity that an
inequitable result would follow if American Golf were treated as a defendant separate
from the Goldman Sachs defendants. Graham merely alleged that a finding against
American Golf could potentially bankrupt American Golf and allow the Goldman Sachs
defendants to “avoid disgorgement of the millions and millions of dollars of unlawfully
acquired monies sent to them by [American Golf] over years.” Difficulty in enforcing a
judgment if the corporate veil is not pierced does not, by itself, satisfy the element of an
inequitable result. (Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523,
539.)
Further, because the allegations in a complaint regarding alter ego are properly
subject to a demurrer (Leek, supra, 194 Cal.App.4th at p. 415), we do not agree with
Graham’s argument that the jury should be able to decide whether or not the corporate
veil should be pierced. Furthermore, there is no right to a jury trial for alter ego claims
because they are equitable in nature. (Dow Jones Co. v. Avenel (1984) 151 Cal.App.3d
144, 147–148.)
Graham argues that the law of agency and the doctrine of respondeat superior
would apply if the jury chose not to pierce the corporate veil. The focus on appeal is
whether the trial court erred in making its rulings, specifically its ruling that Graham’s
alter ego allegations were insufficient. Graham’s reference to general rules regarding the
liability of an agent and the doctrine of respondeat superior does not rescue his
inadequate alter ego allegations.
Graham’s claims against the County defendants subject to the Tort Claims Act were
untimely although not on the ground asserted by the trial court
Graham contends that the trial court erred in dismissing claims subject to the Tort
Claims Act against the County because the trial court (1) incorrectly found that the
21
County had rejected his tort claims on May 3, 2008, when the County actually rejected
those claims on August 29, 2008; (2) failed to take judicial notice of exhibit H attached to
the FAC, which demonstrated that he was served with that rejection on September 11,
2008; (3) failed to recognize that Graham’s federal complaint was constructively filed
within the Tort Claims Act deadline; and (4) erred in applying the Tort Claims Act at all
because Graham’s prayer for money damages was merely incidental to his prayer for
injunctive relief, which Graham asserts is the main form of relief he is seeking in this
case.
Graham’s complaint against the County defendants was not timely filed under
the Tort Claims Act (Gov. Code, § 900 et seq.)
Graham contends that the trial court erred in finding that the County rejected his
claims on May 3, 2008. In fact, as alleged in the FAC, they were rejected on August 29,
2008, and that rejection was served on him only on September 11, 2008, and not the
September 4, 2008 date advocated in the County’s demurrer. The trial court compounded
its error by not crediting his lodging of his federal complaint on March 10, 2009, in
finding that the federal complaint was filed only on July 2, 2009.14
More specifically, Graham contends that under the doctrine of constructive filing,
although he paid his filing fees in his federal case only on July 2, 2009, at which time his
federal complaint was stamped “filed,” that file-stamped date related back to the date of
his lodging of the federal complaint for purposes of satisfying the six-month deadline
under the Tort Claims Act. He also contends that his complaint in the current action was
timely filed because of tolling under 28 United States Code section 1367(d) during the
time he was pursuing his federal case.
A plaintiff cannot sue a public entity in court without first presenting his or her
tort claim to the public entity within six months of accrual of the claim. (Gov. Code,
§ 911.2, subd. (a); K.J. v. Arcadia Unified School Dist. (2009) 172 Cal.App.4th 1229,
14
Graham does not challenge on appeal the trial court’s ruling that he did not
timely present his tort claims to the City. We therefore do not address this issue.
22
1238.) If the public entity rejects the tort claim, the plaintiff must commence his or her
lawsuit within six months of notice by personal or mail service of the public entity’s
rejection of the claim. (Gov. Code, § 945.6, subd. (a)(1); K.J., at p. 1238.)
Graham contends that the trial court erred in refusing to take judicial notice under
Evidence Code section 45215 of exhibit H to the FAC, which demonstrated that the
County sent him notice of its rejection of his tort claims only on September 11, 2008.16
We need not reach the issue of whether the trial court erred in refusing to take judicial
notice of exhibit H because Graham alleged in the FAC that the County served Graham
with the rejection notice on September 11, 2008. (Unruh-Haxton v. Regents of University
of California (2008) 162 Cal.App.4th 343, 349 [for purposes of ruling on a demurrer,
facts pleaded in the complaint are assumed to be true].) Defendants themselves rely on
exhibit H in their opposition brief despite their seeming objection to that exhibit.
Graham asserts that because the lodging of his federal complaint on March 10,
2009, was within the six-month deadline imposed by the Tort Claims Act, albeit barely, it
was of no consequence that the complaint was deemed filed only on July 2, 2009. He
relies on the doctrine of constructive filing recognized by the Third Circuit in McDowell
v. Delaware State Police (3d Cir. 1996) 88 F.3d 188 for this proposition.
Under rule 3 of the Federal Rules of Civil Procedure (28 U.S.C.), “[a] civil action
is commenced by filing a complaint with the court.” (Italics added.) The Ninth Circuit
has recognized that a limitations period can be satisfied by the lodging of a complaint
within the limitations deadline even if, because of noncompliance with a local rule, the
15 Evidence Code section 452 permits a court to take judicial notice of, among
other things, state decisional, constitutional, and statutory laws; regulations issued by
public entities; official acts of state legislative, executive, and judicial departments; court
records; court rules; laws of nations; and facts and propositions not reasonably subject to
dispute and capable of accurate determination by resort to reasonably indisputable
sources. (Evid. Code, § 452, subds. (a)–(g).)
16
Defendants claim that the notice of rejection was actually mailed to Graham on
September 4, 2008, but as noted ante, our review of exhibit H shows that the
September 4, 2008 notice was mailed to the wrong address and was returned to sender.
23
complaint was not formally filed until after expiration of the limitation period. Thus, in
U.S. v. Dae Rim Fishery Co. (9th Cir. 1986) 794 F.2d 1392, the Ninth Circuit held that a
complaint was “constructively filed” by putting it in the possession of the custody of the
clerk, “despite any subsequent rejection by him of the pleading for noncompliance with a
provision of the local rules.” (Id. at p. 1395.) To do otherwise would “conflict with the
mandate of Federal Rule of Civil Procedure 1 to provide a just and speedy determination
of every action.” (Ibid.)
Similarly, in Cintron v. Union Pacific R. Co. (9th Cir. 1987) 813 F.2d 917, the
Ninth Circuit held that the district court erred in dismissing a complaint that had been
rejected by the clerk for noncompliance with local rules regarding format and for
overpayment of the filing fee causing the complaint to be resubmitted in the correct
format and with the correct fee after the statute of limitations had expired. (Id. at p. 921.)
The trouble with Graham’s argument is that as detailed ante, the complaint he
lodged on March 10, 2009, is not the same one that he filed on July 2, 2009, not to
mention that Graham filed them in two different district court cases. Graham has not
cited any case that would relate a filing deadline back to a different case and a different
complaint under the doctrine of constructive filing. It is an appellant’s responsibility to
provide the appellate court with applicable case authority to support an argument, and a
failure to do so constitutes a forfeiture of that argument. (Ellenberger v. Espinosa, supra,
30 Cal.App.4th at p. 948.)
In addition, even if, arguendo, Graham’s second federal complaint could be related
back to the date of lodging of his first federal complaint, he did not timely file the
complaint in the superior court case before us. Graham argues that 28 United States
Code section 1367(d) tolled any running of the Tort Claims Act deadline for the time
during which his case was pending in federal court and on appeal in the Ninth Circuit and
added an additional 30 days for him to file his state law claims in the superior court.
Section 1367(d) of title 28 of the United States Code provides in pertinent part:
“The period of limitations for [a claim eligible for supplemental jurisdiction that is
dismissed] shall be tolled while the claim is pending and for a period of 30 days after it is
24
dismissed unless State law provides for a longer tolling period.” As the Supreme Court
recognized in City of Los Angeles v. County of Kern (2014) 59 Cal.4th 618, this provision
tolls the running of a limitations period while supplemental state claims are pending in
federal court. (Id. at p. 630.) It also gives litigants a “grace period” within which to file
claims in state court once the federal court has refused to exercise supplemental
jurisdiction over the state law claims: “If a cause of action would be lost, or have only
scant days or weeks remaining on the clock when dismissal occurs, parties are assured an
opportunity to proceed in state court, provided they act diligently.” (Ibid.)
The problem here is that although Graham filed a notice of appeal on October 29,
2009, at that time Graham eschewed appealing from the district court’s dismissal of his
state law claims. It was only on March 7, 2011, when he filed his “Notice to the 9th
Circuit Court of Change in Circumstances Possibly Relevant to the Appeal Decision” that
he notified the Ninth Circuit that he wanted the appellate court to consider his state law
claims. This was after the Ninth Circuit had issued its decision on Graham’s appeal on
March 4, 2011, and after Graham dismissed his first state complaint on January 5, 2011.
It appears to us that there was no tolling of the Tort Claims Act deadline under 28 United
States Code section 1367(d) during the time Graham’s appeal was filed and decided.
Graham filed his complaint in superior court in the case before us on April 1, 2011,
which was beyond any 30-day grace period set forth in 28 United States Code section
1367(d), where there was no tolling from October 29, 2009, through March 7, 2011, even
assuming that the constructive filing doctrine applied to Graham’s multiple federal
complaints.17
Graham was not exempt from filing a tort claim
Graham argues that because injunctive relief was the main form of relief he is
seeking in the FAC, he was not required to file a tort claim with the County. Although
17 Because we find that Graham has not demonstrated why the constructive filing
doctrine would apply to his federal complaints, we do not address defendants’ argument
in their March 30, 2015 letter brief that 28 United States Code section 1367(d) cannot
“trump” the Tort Claim Act’s filing deadline.
25
Graham has raised this argument for the first time only on appeal, we address his
argument because it involves a question of law on undisputed facts. (McDonald’s Corp.
v. Board of Supervisors (1998) 63 Cal.App.4th 612, 618.)
The filing requirements of the Tort Claims Act apply to actions for money
damages. (Loehr v. Ventura County Community College Dist. (1983) 147 Cal.App.3d
1071, 1079 (Loehr).) “Although this term is not defined in the act, it is comprehensive in
scope and includes tort claims arising out of negligence, nuisance, breach of statutory
duties, and intentional wrongs. [Citation.]” (Ibid.) When a complaint contains a claim
for injunctive relief that is incidental to a plaintiff’s claims for damages, the requirements
of the Tort Claims Act still apply. (Loehr, at p. 1081 [plaintiff’s causes of action were
aimed at recovering monetary damages for loss of future earnings, emotional and mental
distress, pain and suffering; two causes of action seeking injunctive relief were incidental
to prayer for damages].)
The trial court sustained the County’s demurrer as untimely with respect to
Graham’s causes of action for (1) violation of the “right of Expression and Speech”;
(2) violation of fundamental right to work as a golf instructor; (3) violation of right of
equal protection; (4) violation of the Unfair Practices Act (Bus. & Prof. Code, § 17000
et seq.); (6) violation of the Bane Act (Civ. Code, § 52.1); (7) public nuisance; (9) public
nuisance; (11) fraud; and (12) government waste.
Our review of those causes of action reveals that they are aimed at recovering
monetary damages and that Graham’s prayer for injunctive relief is merely incidental to
those money damages claims. As detailed ante, his prayer for relief included actual
damages, “Restitutionary disgorgement,” exemplary damages, nominal damages,
“trebling” of actual damages, costs of suit, and attorney fees for violation of his primary
rights. As we observed above, Graham himself alleges that his FAC centered around
“two primary rights”—Graham’s and the public’s right to golf services not exceeding the
actual cost of the services and Graham’s right to give golf lessons. Thus, the main object
of the FAC is recovery of what Graham contended to be “hundreds-of-millions of
dollars” in overcharged fees for golf services, among other monetary relief.
26
That recovery of monetary damages was Graham’s main goal is further
underscored by his allegations that piercing the corporate veil was necessary because
American Golf may not have the funds necessary to pay for a judgment in this case.
The purported hold harmless clauses
Graham contends that unspecified hold harmless clauses in the County’s contracts
with American Golf would require American Golf to indemnify the County. From this
premise, he concludes that his claims do not involve money damages against the County.
Graham does not allege any such agreement in the FAC other than to allege that
American Golf provided a free legal defense to the County. Graham has failed to cite to
any legal support for the premise of his argument, to wit, that the existence of an
indemnity right negates having to comply with the Tort Claims Act. That an action is for
money damages is what triggers compliance with the Tort Claims Act, and not whether
monetary damages are ultimately recoverable or how a judgment in such an action would
ultimately be funded. (Loehr, supra, 147 Cal.App.3d at p. 1081.) Finally, Graham did
not raise this argument in his opposition to the County’s demurrer, and thus he forfeited
the argument on appeal.
Graham failed to demonstrate that the trial court erred in applying the immunity
doctrine to Graham’s claims
Graham argues that “[t]he business partnership of [American Golf] and its owners
with the County and City as established by the golf course property management
agreements, or so-called ‘leases,’ establish an illegal proprietary undertaking for which
there is no immunity for any Defendant party.” (Boldface omitted.) Judge Lavin
sustained the County defendants’ and City defendants’ demurrer to the fifth, eight, and
10th causes of action “on the basis of immunity.” As previously noted ante at footnote
10 of this opinion, Graham disclaims appealing from Judge Lavin’s ruling as to the
eighth and 10th causes of action regarding violation of Business and Professions Code
section 17200 et seq. We thus address Graham’s argument only with respect to his fifth
cause of action for violation of the Cartwright Act.
27
Graham relies principally on People ex rel. Freitas v. City and County of San
Francisco (1979) 92 Cal.App.3d 913 (Freitas) for the proposition that defendants had a
proprietary relationship with American Golf and therefore were not immune from
liability under the Cartwright Act. Freitas does not support Graham’s position. Indeed,
the Freitas court held that the City of San Francisco was immune from the Cartwright
claims in that case. (Freitas, supra, 92 Cal.App.3d at pp. 921, 925.) Graham also relies
on Board of Trustees v. City of Los Angeles (1975) 49 Cal.App.3d 45 (Board of Trustees)
and Guidi v. State of California (1953) 41 Cal.2d 623 (Guidi). Neither case is apt.
In Board of Trustees, a state university brought a declaratory relief action asserting
that a local permitting regulation could not be applied to a circus that leased the
university’s real property. Division Two of our appellate district held that the city’s
permitting ordinance was not preempted and could be applied to the circus-lessee. “The
question here then is whether the state has preempted the field of regulating the type of
activity in which the board’s lessee was engaged, or whether the regulation of private
persons engaged in such activity on the board’s land impinges upon the sovereignty of
the state. We conclude that both questions must be answered in the negative and resolved
in favor of the city’s power to enforce its ordinance against the board’s lessees.” (Board
of Trustees, supra, 49 Cal.App.3d at p. 49.) Board of Trustees did not address the
Cartwright Act or the filing deadline in the Tort Claims Act. Guidi does not assist
Graham either because even assuming arguendo that violation of the Cartwright Act were
a tort, Guidi was “effectively overruled in the tort context.” (Bame v. City of Del Mar
(2001) 86 Cal.App.4th 1346, 1357, fn. 7, citing Great Western Shows, Inc. v. Los Angeles
County (9th Cir. 2000) 229 F.3d 1258, 1265.)
Graham has the burden as an appellant to cite applicable legal authority.
Graham’s having failed to do so, we reject his argument.
28
The granting of the demurrer did not deprive defendants of the right to file motions
for summary judgment, and the trial court did not deprive Graham of his jury trial
rights
Graham contends that because Judge Lavin set a trial date for the claims that were
not dismissed, the defendants “had no reason to file their two motions for summary
judgment or summary adjudication.” Graham also contends that Judge Meiers’s granting
of the summary judgment motions violated his constitutional right to a jury trial. He
further contends that Judge Meiers improperly made a sua sponte motion for judgment on
the pleadings.
A demurrer attacks the sufficiency of a pleading. “‘A general demurrer may be
sustained without leave to amend where it is probable from the nature of the defects and
previous unsuccessful attempts to plead that the plaintiff cannot state a cause of action.’
[Citations.]” (Oddone v. Superior Court (2009) 179 Cal.App.4th 813, 823.) On the other
hand, a summary judgment motion attacks whether a triable issue of fact exists. “‘The
trial court must grant a summary judgment motion when the evidence shows that there is
no triable issue of material fact and the moving party is entitled to judgment as a matter
of law. [Citations.] In making this determination, courts view the evidence, including all
reasonable inferences supported by that evidence, in the light most favorable to the
nonmoving party. [Citations.]’ [Citation.]” (Hypertouch, Inc. v. ValueClick, Inc. (2011)
192 Cal.App.4th 805, 818.)
Judge Lavin’s overruling of the demurrer as to certain causes of action did not
leave the FAC invulnerable to a later attack by way of summary judgment, nor bar a later
motion by Judge Meiers for judgment on the pleadings. “‘A motion for judgment on the
pleadings may be made at any time either prior to the trial or at the trial itself. [Citation.]
The motion may be made even when a general demurrer has been previously overruled.
The interests of all parties are advanced by avoiding a trial and reversal for defect in the
pleadings. . . . If the demurrer is erroneously overruled, he is acting properly in raising
the point again, at his next opportunity. If the trial judge made the former ruling himself,
he is not bound by it. [Citation.] And, if the demurrer was overruled by a different
29
judge, the trial judge is equally free to reexamine the sufficiency of the pleading.
[Citations.]’ [Citation.]” (Donohue v. State of California (1986) 178 Cal.App.3d 795,
800–801.)
The sustaining of a demurrer or granting of a motion for summary judgment does
not deprive Graham of his right to a jury trial. The jury’s role is to act as an independent
fact finder. (Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 973.) The jury does
not decide legal issues. (Ibid.) When the trial court sustains a demurrer, it assumes a
plaintiff’s alleged facts to be true; thus the only remaining issues are legal ones for the
court to decide, and not the jury. (Oddone v. Superior Court, supra, 179 Cal.App.4th at
p. 823.) Similarly, when the trial court grants a summary judgment motion, it has
determined that no issue of material fact needs to be tried. (Hypertouch, Inc. v.
ValueClick, Inc., supra, 192 Cal.App.4th at p. 818.)
Thus, the trial court’s sustaining of the demurrers and granting of the motions
noted above did not deprive Graham of a jury trial because, by definition, there were no
material facts for the jury to find.
Graham failed to follow proper procedures for disqualification of Judge Meiers
Without citation to the record or legal authority, Graham requests that Judge
Meiers “be recused from sitting as the trial court judge in such further proceedings as will
be occurring in this lawsuit.” A party seeking disqualification of a judge must present a
request for disqualification at the earliest practicable opportunity and not for the first time
on appeal. (Code Civ. Proc., § 170.3; In re Steven O. (1991) 229 Cal.App.3d 46, 54.)
Graham has failed to follow proper procedures in requesting disqualification of Judge
Meiers. We therefore have nothing to review.
30
DISPOSITION
The judgments are affirmed.
NOT TO BE PUBLISHED.
BENDIX, J.*
We concur:
ROTHSCHILD, P. J.
JOHNSON, J.
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
31 | 01-03-2023 | 05-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/8540661/ | La Jueza Asociada Señora Fiol Matta
emitió la opinión del Tribunal.
Hoy nos corresponde resolver si los gastos operacionales de un demandante deben deducirse de la partida de lucro cesante otorgada a éste para compensarle por la ganancia dejada de percibir producto de un incumplimiento de contrato. En particular, examinaremos si existe alguna diferencia entre los gastos operacionales que varían según el volumen de negocio de la empresa y los gastos fijos que no guardan relación con las fluctuaciones en el volumen del negocio. De contestarse en la afirmativa estas interrogan-tes, debemos determinar cómo llevar a cabo ese cómputo.
I — l
El 23 de octubre de 1998, El Coquí Landfill (El Coquí o Waste Management) presentó una demanda de cobro de dinero e incumplimiento de contrato contra el Municipio de Gurabo (Municipio), reclamando el pago de $584,634.58 por servicios relacionados con el depósito de desperdicios. Durante el transcurso de ese pleito, las partes llegaron a un acuerdo extrajudicial, en el que el Municipio se compro-metió a pagar la mitad de la deuda reclamada y, a cambio de la condonación del monto restante, suscribió un con-*691trato de exclusividad por cinco años con El Coquí para el depósito de desperdicios sólidos recolectados por el Municipio.(1) La transacción fue aprobada nuevamente por la Legislatura Municipal y recogida en el “Contrato para la disposición de desperdicios sólidos municipales”, que entró en vigor el 1 de noviembre de 2002 y terminó el 31 de octubre de 2007. En conformidad con los términos del con-trato, el Municipio se comprometió a transportar todos los desperdicios recolectados y a depositarlos en el vertedero de Waste Management en Humacao. Las partes acordaron que, si se privatizaba el recogido de los desperdicios, el Municipio requeriría al contratista que los transportara para depositarlos en el vertedero de Waste Management. (2) El Municipio se asesoró legalmente en todas las etapas de los procedimientos, incluyendo las negociaciones y el per-feccionamiento del contrato.
Mientras estaba vigente su contrato exclusivo con Waste Management, el Municipio suscribió un “Contrato para proveer servicios de recogido y disposición de desper-dicios sólidos no peligrosos en el Municipio de Gurabo” con la compañía ConWaste. Mediante dicho contrato —que co-menzaba el 1 de noviembre de 2003 y vencía el 31 de octu-bre de 2010 — , el Municipio otorgó a ConWaste el “derecho exclusivo sobre el ‘recogido, recolección, transporte y dispo-sición de desperdicios’ ” sólidos en Gurabo.(3) A partir de la firma de ese segundo contrato, el Municipio y ConWaste continuaron depositando los desperdicios recogidos en Gu-rabo en el vertedero de Waste Management.
*692En febrero de 2006, mientras aún faltaba cerca de año y medio para que venciera el contrato con Waste Management, el Municipio dejó de depositar los desperdicios en el vertedero localizado en Humacao. Poco después, el 2 de mayo de 2006, el contrato entre el Municipio y ConWaste fue enmendado para conceder a esta compañía la facultad de determinar el lugar donde se dispondrían los desperdicios. De igual forma, ConWaste se hizo responsa-ble por los costos de depósito y disposición de los desperdicios.(4) Producto de esta enmienda al contrato, ConWaste comenzó a depositar los desperdicios en un ver-tedero en Fajardo que no le pertenecía a Waste Management. Tras percatarse de lo ocurrido, Waste Management escribió una carta a ConWaste informándole del contrato de exclusividad que tenía con el Municipio y soli-citando que éste se respetara. A pesar de ello, ConWaste continuó operando según lo establecido en el contrato en-mendado con el Municipio.
Tras un juicio en los méritos, el Tribunal de Primera Instancia declaró “con lugar” la demanda presentada por Waste Management contra el Municipio por incumpli-miento de contrato y contra ConWaste por interferencia torticera. En cuanto a los daños, el foro primario determinó que los demandados debían pagar a Waste Management $1,229,401.44 como compensación por las ganancias deja-das de percibir a causa del incumplimiento, más el 4.25% en concepto de interés legal.
Para demostrar los daños, Waste Management presentó una tabla que resumía la cantidad de desperdicios que el Municipio había depositado en su vertedero durante los *693trece meses antes del incumplimiento. Al multiplicar dicha cantidad por el precio acordado en el contrato, el deman-dante identificó los ingresos mensuales que percibió en dicho periodo. Tomando esto como base, estimó un promedio mensual y proyectó los ingresos dejados de percibir corres-pondientes a los meses restantes en el contrato.
La tabla presentada por Waste Management fue elabo-rada por el Sr. Félix Renta, contador público autorizado y gerente de contabilidad de Waste Management, quien tes-tificó a favor de dicha compañía. En el contrainterrogato-rio, se le preguntó al señor Renta si el análisis del ingreso dejado de percibir constituía un cálculo del ingreso bruto. El testigo contestó en la afirmativa.(5) Acto seguido, se le preguntó si ello quería decir que el análisis no contenía los costos reales en los que Waste Management hubiera incu-rrido si el Municipio no hubiese incumplido el contrato. El señor Renta lo negó, ya que, según expuso, no había gastos asociados al volumen de desperdicios depositados en el vertedero.(6) Es decir, que los gastos eran fijos y que no se afectaban por las fluctuaciones en el volumen de depósitos. Además, el abogado del Municipio le preguntó si la proyec-ción realizada representaba alguna cantidad neta: “O le pregunto, ¿en algún momento dado ustedes hicieron un es-timado de costos para ver de [sic] cuánto de esta cantidad se le iban en gastos operacionales a usted?”, a lo que el señor Renta contestó “[n]o, no se hizo ningún análisis de esa manera ...”.(7) Por último, el representante legal del Municipio preguntó: “O sea, que, sencillamente, usted pre-paró esta tabla, pero no preparó otra con los estimados de costo sobre la operación de haber depositado desde febrero del dos mil seis (2006) hasta octubre del dos mil siete
*694(2007), ¿verdad?”.(8) El señor Renta contestó en la afirmativa.
Inconforme con la determinación del foro de instancia, los codemandados recurrieron al Tribunal de Apelaciones señalando la comisión de varios errores, entre ellos que el contrato suscrito entre el Municipio y Waste Management era inválido porque no contenía una cláusula de rescisión y que hubo vicio de consentimiento por dolo. Además, alega-ron que la partida de $1,229,401.44 incluía costos operacio-nales {overhead) que no debían compensarse, sino que, por el contrario, debían deducirse del cómputo de daños. Es decir, que la partida de daños debía incluir únicamente las ganancias netas que Waste Management dejó de devengar por el incumplimiento. En particular, el Municipio cues-tionó la falta de un informe de costos o gastos que justifi-cara la partida otorgada, más allá de la tabla que demos-traba la cantidad de depósitos realizados antes del incumplimiento y que sirvió de base para proyectar los in-gresos correspondientes a los meses que restaban en el contrato.(9) El Tribunal de Apelaciones confirmó el dicta-men del foro primario..
El Municipio recurrió a este Tribunal mediante un re-curso de apelación, alegando los mismos errores presenta-dos ante el foro apelativo. En cuanto al cómputo de daños, el Municipio alega que el Tribunal de Primera Instancia “nunca realizó estimado de costo para ver cuánto conlle-vaba el gasto operacional y poder determinar su alegada pérdida neta”.(10) En particular, cuestiona la insuficiencia del testimonio del señor Renta, pues éste aceptó que no *695analizó el impacto de la merma en depósitos sobre los gas-tos operacionales del vertedero.
El 6 de mayo de 2011, otorgamos a Waste Management un término de veinte días para que mostrara causa por la cual no debíamos expedir el auto y modificar la sentencia del Tribunal de Apelaciones en cuanto a la partida de da-ños concedidos. En cumplimiento con nuestra orden, Waste Management presentó dos argumentos principales. En primer lugar, insistió en que se trata de un asunto de credi-bilidad; que el tribunal de instancia creyó el testimonio del perito sobre las pérdidas económicas sufridas por Waste Maganement y que debe darse deferencia a esa determinación. Para la demandante, la tabla presentada y aceptada por el Tribunal de Primera Instancia, en unión al testimonio del señor Renta, es suficiente para determinar las “ganancias” que generó Waste Management justo antes del incumplimiento y para proyectar lo que debió haber recibido durante la vida restante del contrato.(11) Waste Management enfatizó en que este testimonio no fue refu-tado y que el Municipio no presentó prueba que estable-ciera otro cálculo en cuanto a los daños, particularmente sobre los alegados gastos operacionales que debieron deducirse.(12) Aún más, argumentó que, en su testimonio, el señor Renta expresó que “Waste Management no incurría en gastos o costos adicionales que estuvieran asociados a la disposición de los desperdicios sólidos en el vertedero de Humacao”.(13)
En cuanto a los costos incurridos por Waste Management, insistió en que éstos no incrementaron con el volu-men de toneladas de basura, pues en la operación de un *696vertedero, los costos incurridos mensualmente son constantes. Ello así, ya que el vertedero ya está construido y el mantenimiento que conlleva el mismo es el mismo in-dependientemente de la cantidad de basura depositada. De igual forma, la empleomanía [sic] y equipos utilizados es el mismo, y tampoco dependen del volumen de basura”.(14)
En segundo lugar, Waste Management propone que ha-gamos una distinción entre los gastos operacionales fijos y los gastos que varían según el volumen de negocios de una empresa. Para ello, cita varios casos de otras jurisdiccio-nes, incluyendo la federal, en los que se ha resuelto que los gastos operacionales fijos, conocidos como overhead, no de-ben ser deducidos de una partida de daños. La recurrida sostiene que, como los gastos operacionales fijos no son de-ducibles de dicha partida como cuestión de derecho, y el tribunal de instancia determinó, como cuestión de hecho, que Waste Management no incurría en gastos operaciona-les que se afectaran con los cambios en el volumen de de-pósitos de desperdicios en su vertedero, se debe confirmar la decisión del Tribunal de Apelaciones, incluyendo la par-tida de daños otorgada por el foro de instancia. Tomando en consideración los escritos de las partes y el derecho apli-cable, procedemos a acoger el recurso como un certiorari, expedir el auto y resolver.
HH I — i
El Artículo 1059 de nuestro Código Civil establece que “[l]a indemnización de daños y perjuicios corresponde no sólo al valor de la pérdida que haya sufrido, sino tam-bién el de la ganancia que haya dejado de obtener el acree-dor, salvo las disposiciones contenidas en las secciones siguientes”.(15) Como explica el tratadista Manresa, este *697artículo atiende dos tipos de daños. En primer lugar, or-dena compensar a la persona que ha sido privada de lo que ya tenía. A esto se le conoce como daño emergente o daño positivo. En segundo lugar, también provee una compensa-ción cuando se impide a una persona aprovecharse de lo que le hubiera correspondido. A esta segunda modalidad de daños se le conoce como lucro cesante o daño negativo.(16) Según Manresa, “ ‘[e]n ambos casos, la realidad del perjui-cio y la justicia de la reparación tiene [n] igual evidencia’ ”.(17) De la misma forma, Castán Tobeñas vincula directa-mente el concepto de “lucro cesante” al mandato del Código Civil de reparar la “ganancia dejada de obtener”.(18) Ello aplica tanto al contexto contractual como al extra-contractual. (19)
Como puede apreciarse del texto del Artículo 1059 de nuestro Código Civil, lo que se compensará al acreedor serán las ganancias dejadas de percibir, no necesariamente todo ingreso futuro frustrado.(20) En particular, nuestra ju-*698risprudencia demuestra que los daños compensables en ca-sos de lucro cesante se refieren a la ganancia neta insatis-fecha por la conducta del demandado, no al ingreso bruto. Desde 1940 resolvimos que la compensación corresponderá a “los daños sufridos por razón de la pérdida de beneficios netos ...”.(21) Más de sesenta años después, empleamos un análisis similar al resolver que, para calcular el lucro ce-sante de un trabajador que recibe un salario fijo, se tomará como punto de partida su salario bruto, mientras que el de un trabajador que no recibe un salario fijo se calculará a partir de su ingreso neto.(22) De esa manera se cumple el objetivo de nuestra normativa sobre responsabilidad civil, tanto contractual como extracontractual, de reparar el daño causado, devolviendo al agraviado a su situación original.
Como señala Castán, “ ‘[e]l derecho a la indemnización no puede implicar un enriquecimiento, sino sólo obtener el resarcimiento del daño efectivo’ ”.(23) Por lo tanto, al com-putarse la indemnización, debe descontarse “cualquier ventaja al acreedor”, de manera que la partida otorgada refleje “el verdadero importe del daño”.(24) En ese sentido, “ ‘[s]i el daño ... ha de ser real y efectivo, claro es que sólo podrá apreciarse deduciendo el valor patrimonial de las ventajas que el propio acto dañoso acarree a la persona interesada. Sólo la diferencia podrá considerarse en Dere-cho pérdida sufrida o ganancia dejada de obtener”.(25) Por su parte, el Tribunal Supremo de España ha resuelto que la partida de daños por lucro cesante “debe ajustarse al beneficio neto, a la verdadera ‘ganancia’ que se deja de ob-tener”, pues, de lo contrario, la compensación perdería su *699característica de restitución.(26) Por lo tanto, hace falta “re-ducir la indemnización por lucro cesante concedida a la ganancia neta que resulte de tomar en consideración los gastos efectuados ... para deducirlos”.,(27)
De lo anterior surge que, en cuanto a los gastos operacionales, particularmente en el contexto contractual, la “ventaja” a deducirse de la partida por lucro cesante consiste de aquellos gastos en los que el demandante hubiera tenido que incurrir si el demandado hubiese cumplido con su obligación. Para el tratadista Femenía López, esto es cónsono con la necesidad de identificar “las ‘deducciones del daño resarcible’ para calificar la ‘concurrencia de factores que disminuyen la obligación resarcitoria del deudor, como consecuencia de la ventaja que aquéllos reportan al mismo acreedor’, cuestión a la que conceptualmente se ha denominado compensatio lucri cum danno”.(28) Según el autor:
El fundamento legal de la figura se encuentra en el propio artículo 1.106 del Código civil [equivalente al 1059 nuestro], que al disponer que la indemnización de daños y perjuicios comprende no sólo el valor de la pérdida sufrida, sino también el de la ganancia dejada de obtener, está diciendo que la con-formación del daño resarcible debe hacerse sobre la base del perjuicio realmente experimentado, para lo cual tendrán que computarse todos aquellos lucros o provechos, dimanantes del daño, que signifiquen un paliativo o aminoración del que-branto patrimonial sufrido por el perjudicado.(29)
En ese marco normativo, Femenía López hace referen-cia a una Sentencia de la Audiencia Provincial de Soria que discutió la partida de daños en un caso de corte de sumi-*700nistro eléctrico. En esa ocasión, la sala provincial resolvió que, al calcularse el lucro cesante, había que deducir “ las partidas correspondientes a ciertos gastos fijos como los de amortización de maquinar [i] a (no utilizada ni desgastada durante el lapso temporal en que la planta permaneció pa-ralizada), además de los correspondientes a materias pri-mas o energía’ ”.(30) En esa misma dirección, Femenía Ló-pez ofrece como ejemplo el caso de la paralización de vehículos destinados a actividades empresariales. En esa situación, “deberán detraerse determinados gastos que de-jan de generarse y que suponen una compensación para el peijudicado, siendo el más claro ejemplo de esta partida el importe de combustible que no se consume al estar el ve-hículo paralizado, los peajes que no se abonan, la repercu-sión de la amortización por la compra del vehículo o las reparaciones o revisiones ordinarias”.(31)
En ese sentido, nuestro Código Civil requiere que se deduzcan de la partida de lucro cesante aquellos gastos en los que el demandante hubiera incurrido si el demandado hubiese cumplido su obligación, pero que no se materializaron debido al incumplimiento. Como veremos, más allá de una clasificación rígida, lo que corresponde es concretar los gastos operacionales no incurridos. Por eso, las clasificaciones que analizaremos a continuación no pretenden ser una camisa de fuerza; más bien sirven para facilitar la labor del tribunal. Por lo tanto, el cálculo deberá enfocarse en determinar los costos que el demandante realmente se ahorró como consecuencia del incumplimiento del demandado.
Como señaláramos, el recurrido sugiere que adoptemos la normativa prevaleciente en algunas jurisdicciones de Estados Unidos, que distingue entre los gastos operaciona-*701les fijos y aquellos que, en efecto, varían según el volumen de actividad de la empresa. Dicha normativa es cónsona con la doctrina civilista previamente discutida, por lo cual la mencionaremos rápidamente.
La primera distinción que se hace en la doctrina estado-unidense es entre los gastos operacionales como lucro emergente o como lucro cesante, pues en dicha tradición, al igual que en el Derecho Civil, se compensa tanto por las pérdidas causadas como por las ganancias dejadas de obtener.(32) En el primer supuesto, se trata de aquellos gas-tos en que haya incurrido una persona como parte del cum-plimiento de una obligación contractual. En caso de que la otra parte incumpla con su prestación, el perjudicado puede incluir en su partida de daños todos los gastos ope-racionales en que incurrió, independientemente de si eran fijos o, por el contrario, estaban relacionados directamente con la empresa abortada, siempre y cuando hayan sido previsibles. Hay unanimidad entre las jurisdicciones de Estados Unidos en cuanto a que los gastos operacionales son compensables como daño emergente.(33)
Así, en los casos de incumplimiento contractual, si se adquiere algún tipo de equipo o material, o se incurre en algún otro gasto con miras al cumplimiento del contrato, el demandante podrá presentar prueba al respecto, y ese tipo de daño será compensado. El problema se da en el segundo supuesto, al calcular las ganancias dejadas de percibir. Se plantea, específicamente, si se deben deducir los gastos operacionales de la partida de lucro cesante que debe pa-gar el demandado cuando no se ha incurrido en dichos gas-*702tos precisamente porque se ha incumplido con el contrato. En esos casos, para obtener la cuantía que comprende el ingreso neto, hace falta deducir los gastos operacionales que se hubieran materializado de haberse cumplido el con-trato, pero en los que realmente no se incurrió debido al incumplimiento contractual. Si bien hay unanimidad sobre el primer supuesto, la normativa estadounidense se ha dividido, en cuanto a ciertos aspectos, sobre el segundo.(34)
Para efectos de ese segundo supuesto, la mayoría de las jurisdicciones en Estados Unidos distinguen entre los gas-tos operacionales fijos que no fluctúan con el volumen de negocio y que, por lo tanto, no se ven afectados si se incum-ple el contrato, y los gastos operacionales variables que oscilan de acuerdo con el volumen de negocio realizado. Esta distinción responde a la norma general de que un demandante no puede recuperar las ganancias brutas no percibidas, sino únicamente las ganancias netas frustradas.(35) Por lo tanto, si el gasto se evitó como conse-cuencia del incumplimiento, se deducirá de la partida de lucro cesante. Como hemos visto, igual ocurre en el derecho civil.
Las jurisdicciones que distinguen entre gastos operacionales fijos y gastos operacionales variables definen los primeros como aquellos en que se incurre independien-*703temente de la productividad de la empresa.(36) De igual forma, definen los segundos como aquellos que fluctúan con el vaivén del volumen de actividad realizada o están directamente vinculados con dicho volumen.(37) En cuanto a los gastos operacionales variables, los tribunales y co-mentaristas han tenido que recurrir al uso de ejemplos para poder distinguirlos efectivamente. Los gastos por con-cepto de impuestos, seguros, arrendamiento del local co-mercial principal y salarios gerenciales normalmente se consideran fijos.(38) En cuanto a los gastos considerados como variables, se han mencionado el combustible, el man-tenimiento, la depreciación del equipo, los intereses, algu-nos seguros, los salarios ordinarios, los beneficios laborales y los arrendamientos particulares relacionados con la pres-tación incumplida.(39)
Sin embargo, los tribunales han enfatizado que no se pueden hacer listas universales, pues todo depende del ne-gocio particular. En algunos casos, un gasto será conside-rado fijo, mientras que en otro puede caracterizarse como variable. El elemento crucial será si, en efecto, se hubiera incurrido en el gasto sólo de haberse cumplido la obligación.(40)
*704Lo anterior no supone una dicotomía inflexible entre gastos operacionales fijos y gastos operacionales variables. Hay algunos costos que no se pueden clasificar de manera tajante como fijos o variables debido a su naturaleza. En esa dirección, hay gastos que se consideran semifijos o semivariables. Estos gastos incluyen una cantidad base fija, que no se verá afectada por las fluctuaciones en el volumen o actividad del negocio, y otra porción que varía de acuerdo con el nivel de actividad que se realiza, si ésta se amplía con el tiempo. Estos costos semivariables o semi-fijos contienen una porción que no debe deducirse al calcu-lar la ganancia neta, pues, si bien se trata de gastos ope-racionales que varían con el volumen de negocios, no responden en proporción inmediata a las fluctuaciones en el nivel de actividad. En ese sentido, caen más dentro de la definición de gastos operacionales fijos, pues la caracterís-tica fundamental de un gasto operacional variable no es el mero hecho de su fluctuación, sino que esta fluctuación tenga un vínculo directo y proporcional con el volumen de negocio. Por lo tanto, esos costos son susceptibles de divi-dirse en elementos fijos y elementos variables, según sea el caso. Por último, a pesar de que se menciona que en los negocios de servicio casi todos los gastos operacionales son fijos, ello no varía la norma de que sólo se pueden deducir de la partida de ganancia perdida los gastos operacionales variables. (41)
Finalmente, los tratadistas y la mayoría de los tribunales estadounidenses también coinciden en que el peso de la prueba para demostrar que un gasto operacional es fijo y no variable recae sobre el demandante que reclama el lucro cesante.(42) Lo mismo concluye la doctrina *705española.(43) Es decir, se presumirá que un gasto operacio-nal varía con una merma en la actividad económica del demandante, a menos que éste demuestre lo contrario. En caso de que logre demostrarlo, el gasto operacional se con-siderará fijo e independiente del volumen de actividad eco-nómica del demandante y no se deducirá de la partida de lucro cesante. Si, por el contrario, el demandante no logra cumplir con el peso de la prueba, el gasto operacional se entenderá variable y procederá una disminución proporcio-nal en la partida de lucro cesante.
Corresponde al Tribunal de Primera Instancia hacer esta determinación con prueba suficiente, de manera que pueda confeccionar un remedio adecuado. No bastará que el demandante presente una tabla que recoja los ingresos dejados de percibir; tiene que pasar prueba sobre sus gas-tos operacionales y demostrar su naturaleza fija no variable.(44) De concluirse que todos los gastos operaciona-les son fijos, no se deducirá cantidad alguna de la partida por lucro cesante. Si no se demuestra la naturaleza fija de los gastos, se entenderá que son variables y se podrán deducir.(45) En ese caso, para hacer la deducción correspon-diente, el foro primario deberá calcular el aumento en los gastos operacionales variables que se hubiera manifestado si el demandado hubiese cumplido con su obligación.
Lo fundamental al hacer esta determinación es identifi-car los gastos operacionales en los cuales se hubiera incu-*706rrido si se hubiese cumplido el contrato, en vez de un simple análisis rígido entre gastos fijos y variables. La distinción entre gastos operacionales fijos y variables tiene como objetivo guiar el trabajo del tribunal, no atarle las manos. Por esa razón, el cálculo debe enfocarse en deter-minar los costos que el demandante realmente se ahorró por el incumplimiento. Al momento de calcular la cuantía de lucro cesante, el objetivo debe ser determinar aquellos gastos que no se materializaron debido al incumplimiento contractual. Estos son los costos que se deberán reducir de la cuantía de lucro cesante, es decir, que no se le compen-sarán al demandante.
HH HH l-H
En virtud de lo anterior, resolvemos que, cónsono con la naturaleza reparadora de nuestro ordenamiento civil contractual y extracontractual, y el mandato del Artículo 1059 del Código Civil, cuando se otorguen daños por concepto de lucro cesante deberán deducirse todos los gastos operacionales en los cuales el demandante hubiera incurrido si el demandado hubiese cumplido con su obligación. De esta manera, la partida por lucro cesante reflejará únicamente las ganancias netas que el demandante ha dejado de percibir. Corresponde al demandante presentar prueba al tribunal sobre sus gastos operacionales y demostrar que éstos son de naturaleza fija, es decir, que hubiera incurrido en ellos independientemente del cumplimiento del contrato. De lo contrario, se entenderá que los gastos operacionales son variables y se deducirán de la partida de daños otorgados.
En el caso de autos, el Municipio y ConWaste son soli-dariamente responsables por los daños causados a Waste Management. El contrato exclusivo firmado por el Munici-pio y Waste Management aún tenía varios meses de vigen-cia cuando el primero incumplió con su obligación y *707ConWaste intervino torticeramente en la relación contractual. Sin duda, el demandante tiene derecho a re-cuperar, por concepto de lucro cesante al amparo del refe-rido Artículo 1059 del Código Civil, las ganancias netas que haya dejado de percibir. No obstante, en el juicio, Waste Management se limitó a producir una tabla con las proyecciones de depósitos de desperdicios utilizando los de-pósitos anteriores como base. De esa manera, demostró los ingresos brutos que hubiera recibido si el Municipio hu-biera cumplido con su obligación contractual. En cuanto a las ganancias netas, aunque el señor Renta testificó que, por la naturaleza del negocio, los gastos operacionales de la empresa no fluctuaban de acuerdo con el volumen de los desperdicios depositados en el vertedero de Humacao, lo cierto es que también expresó que no se hizo ningún estu-dio o análisis para verificar si ello era cierto. Es decir, no se demostró que los gastos operacionales fueran fijos. Lo que es más, ni siquiera se presentó prueba alguna sobre los gas-tos operacionales en general.
Evidentemente, Waste Management desconocía que te-nía que demostrar a cuánto ascendían sus gastos operacio-nales y que éstos eran fijos. Por lo tanto, el expediente es insuficiente para determinar adecuadamente si, en efecto, hay que hacer alguna deducción a la partida de lucro cesante. Siendo ello así, es necesario que el foro de instan-cia celebre una vista evidenciaría para determinar, en primer lugar, cuáles son los gastos operacionales del verte-dero de Waste Management en Humacao, pues la presunción de que éstos son variables se activa una vez se determina el monto total de gastos operacionales, cosa que no ha ocurrido en este caso. En segundo lugar, una vez se establezca a cuánto ascienden dichos gastos operacionales, se debe determinar su naturaleza fija o variable, según los criterios explicados en esta Opinión.
Por los fundamentos expuestos anteriormente, se acoge el recurso como un “certiorari” y se expide el auto para mo-*708dificar la sentencia del Tribunal de Apelaciones y devolver el caso al Tribunal de Primera Instancia para la continua-ción de los procedimientos según dispuesto en esta Opinión.
Se dictará sentencia de conformidad.
El contrato firmado por las partes incluye una tabla para el cómputo del costo del servicio, el que varía según el volumen de los desperdicios depositados. En particular, las partes acordaron que El Coquí Landfill (El Coquí o Waste Management) cobraría al Municipio de Gurabo (Municipio) una tarifa de 30 dólares por tonelada por los primeros 18 meses; 33 dólares por los próximos 12 meses; 36 dólares por los siguientes 12 meses y 40 dólares por tonelada los últimos 18 meses. Sentencia del Tribunal de Primera Instancia, pág. 3; Apéndice de la Apelación, pág. 61.
Sentencia del Tribunal de Primera Instancia, pág. 4; Apéndice de la Apela-ción, pág. 52.
Sentencia del Tribunal de Primera Instancia, pág. 5; Apéndice de la Apela-ción, pág. 53.
Previamente, el contrato disponía que las partes acordarían designar me-diante común acuerdo el vertedero donde serían depositados los desperdicios recolectados. De igual forma, el Municipio asumió la obligación de pagar los costos del depósito de los desperdicios en el vertedero seleccionado. Sentencia del Tribunal de Primera Instancia, pág. 5; Apéndice de la Apelación, pág. 53. Desde que entró en vigor este contrato y hasta febrero de 2006, las partes habían acordado depositar los desperdicios en el vertedero de Waste Management, de forma que el Municipio pu-diese cumplir con sus obligaciones contractuales con dicha entidad.
Transcripción del juicio en sus méritos, pág. 86; Apéndice de la Apelación, pág. 678.
“[N]o hay costos fijos asociados a ese volumen”. íd.
Transcripción del juicio en sus méritos, pág. 89; Apéndice de la Apelación, pág. 681. Acto seguido, el abogado del codemandado replicó “No se hizo”, a lo que el señor Renta ripostó: “No”. íd.
Íd.
También cuestionó que Waste Management hubiera utilizado un periodo de trece meses para hacer sus cálculos, ya que ello permitió incluir en dos ocasiones el mes de enero. Los demandados alegan que eso infló indebidamente las proyecciones, pues enero es uno de los meses con mayores depósitos de desperdicios por las fiestas navideñas.
Apelación, pág. 19.
Moción en cumplimiento de orden, págs. 4-5.
“Este se limita a argumentar, a manera de ejemplo, que se [debieron] des-contar los gastos operacionales incurridos por Waste Management. Nótese que esta argumentación se basa en alegados/gastos’ que no fueron presentados ni probados por el Municipio ni por ConWaste”. Id., pág. 7. Además, señala que dichos “alegados ‘gastos’ ni siquiera fueron investigados por las partes demandadas en el proceso de descubrimiento de prueba”. íd., pág. 7 esc. 2.
(Énfasis suprimido). íd., pág. 8.
Íd.
31 L.P.R.A. sec. 3023.
J.M. Manresa y Navarro, Comentarios al Código Civil español, Madrid, Ed. Reus, 1967, T. VIII, Vol. I, pág. 276. Véase, además, C. Valverde y Valverde, Tratado de Derecho Civil español, 4ta ed., Valladolid, Talleres Tipográficos “Cuesta”, 1937, T. III, págs. 113-116.
Manresa, op. cit., pág. 276. Ahora bien, el tratadista reconoce que. existe cierta diferencia entre ambas formas de daños y perjuicios. Según éste, en el caso del lucro cesante, “hay en éste una fatal concurrencia de los caracteres de futuro, con-tingente, variable y, sobre todo discutible, que contrastan de modo notable con aque-llas relativas a seguridad de prueba y facilidad de apreciación”, como en el daño emergente. Id., pág. 277. Igual cautela sugiere Castán Tobeñas al expresar que el daño negativo debe ser calculado con mayor prudencia que el llamado “daño positivo”. J. Castán Tobeñas, Derecho civil español, común y foral, Madrid, Ed. Reus, 1983, T. III, pág. 243.
Castán Tobeñas, op. cit., pág. 242.
RJ. Femenía López, Criterios de delimitación del lucro cesante extracontrac-tual, Valencia, Ed. Tirant lo Blanch, 2010, pág. 201.
Manresa ofrece como ejemplo un caso de una venta con fines de reventa frustrada por la conducta del demandado. En ese ejemplo existe un “implícito per-juicio por el precio de ésta en cuanto había de ser superior al de venta". Manresa, op. cit, pág. 278, citando la Sentencia del Tribunal Supremo de España de 31 de octubre de 1936. En varias ocasiones en su tratado, Manresa enfatiza el elemento de la ganancia: ‘Valor de la ganancia dejada de obtener”, id., pág. 283; “pago de la diferencia de precio”, id., pág. 287. Véase, además, M. Albadalejo, Derecho Civil, 5ta ed., Barcelona, Librería Bosch, 1980, T. II, Vol. I, pág. 199.
(Énfasis suplido). R. Muñiz de León & Co. v. Melón Hnos. & Cía., 56 D.P.R. 330, 340 (1940). Este caso trató de una causa de acción por embargo ilegal.
S.L.G. Rodríguez v. Nationwide, 156 D.P.R. 614 (2002).
Castán Tobeñas, op. cit., pág. 253.
Íd.
(Énfasis suprimido). íd., pág. 253, citando al tratadista Roces.
(Énfasis suplido). Sentencia de 19 de diciembre de 2005, Repertorio de Ju-risprudencia 295, Aranzadi.
(Énfasis suplido). íd.
(Escolio omitido). Femenía López, op. cit, pág. 201.
(Énfasis suplido). íd. De esa forma se aplica adecuadamente el “principio institucional de la reparación íntegra, que obliga a reparar todo el daño, pero sólo el daño; ni más ni menos”. íd., pág. 202.
Sentencia SAP de Soria, Sección Primera de 13 de septiembre de 2004, citada en Femenía López, op. cit., pág. 203.
(Énfasis suplido). Id. Véase, por ejemplo, Sentencia de la SAP de Valencia, Sección Undécima de 16 de mayo de 2007.
Anotación, Comment Note: Overhead Expense Recoverable Element of Damages, 3 A.L.R.3d 689, 693 (1965) (“[LJosses caused and the gains prevented .... In § 329 of Restatement of Contracts, it was said that one measure of damages for a breach of contract is the net amount of the losses caused and gains prevented by the breach, in excess of savings made possible”). (Énfasis suplido). Véase, además, J. Ross Pepper, Recovering Lost Profits: Prove. Calculate. Award, 44 Tenn. B. J. 14, 15 (2008) (“A plaintiff may not recover lost gross profits, gross revenues or gross sales. Only lost net profits may be recovered”).
Anotación, supra, pág. 695.
Id. “If, however, the plaintiff’s claim for damages is based on the theory that the defendant has prevented the plaintiff from carrying out certain transactions and has thereby been responsible for causing the plaintiff a loss of profits, there has been a divergence of opinion as to whether or not the plaintiff must deduct the overhead expenses allocable to the unperformed transactions in computing the amount of lost profits recoverable from the defendant íd., pág. 692. Algunas jurisdicciones no permiten deducción alguna por concepto de gastos operacionales, como California, Iowa, Luisiana, Oklahoma y Pensilvania, mientras otras sí permiten deducciones por gastos operacionales variables, como Minnesota, Nueva York, Carolina del Norte y Virginia. Id., pág. 697. Véase, además, Ross Pepper, supra, pág. 15; H.K. Munson, Fixed Overhead Expenses: The Gremlins of Lost Profits Damages, 56 J. Mo. Bar 104 (2000).
Ross Pepper, supra, pág. 15. Véase, además, Ameristar Jet Charter, Inc. v. Dodson Intern. Parts, Inc., 155 S.W.3d 50, 54 (Mo. 2005) (“The goal of awarding damages is to compensate a party for a legally recognized loss. ... A party should be fully compensated for its loss, but not recover a windfall”).
Munson, supra, pág. 104 (“[R]egardless of the volume of output. They do not vary with the volume of business”).
Id. (“At times, expenses that are generally considered to be overhead may fluctuate as the volume of business increases or decreases. These variable overhead expenses, also referred to as direct or variable expenses, consist of those overhead type of expenses directly linked to, or which fluctuate with, the volume of output”). Véase, además, Ameristar Jet Charter, Inc. v. Dodson Intern. Parts, Inc., supra, pág. 55.
Ameristar Jet Charter, Inc. v. Dodson, supra.
Íd., pág. 56.
Ross Pepper, supra, pág. 16. Véase, además, Buono Sales, Inc. v. Chrysler Motors Corporation, 449 F.2d 715 (3er Cir. 1971). En esa ocasión, el tribunal de circuito federal resolvió que debía deducirse de la partida de lucro cesante el ingreso que pudo obtener el demandante por el espacio comercial no ocupado por el deman-dado producto de su incumplimiento de contrato. Es decir, lo que en otras circuns-tancias podría calificarse como un gasto operacional fijo, se convirtió en una partida deducible porque el demandante obtuvo una ventaja como consecuencia del incum-plimiento del demandado, pues el espacio desocupado pudo ser explotado económicamente.
Ross Pepper, supra, pág. 15.
Íd. (“The burden of proof is on the plaintiff”). Véase, además, Buono Sales, Inc. v. Chrysler Motors Corporation, supra, pág. 720.
Véase Valverde y Valverde, op. cit., pág. 115. Esto responde a la norma general de que la prueba del daño incumbe al acreedor.
El caso Ameristar Jet Charter, Inc. v. Dodson Intern. Parts, Inc., supra, es altamente ilustrador. El Tribunal Supremo de Missouri resolvió que no era suficiente que un funcionario de la empresa demandante presentara una tabla con un estimado de las ganancias frustradas. Dado que el alto foro estatal concluyó que algunos gas-tos operacionales pueden ser fijos en ciertos contextos pero variables en otros, y que el expediente era insuficiente para determinar qué gastos operacionales correspondían a una u otra clasificación, el Tribunal devolvió el caso al foro de instancia para una vista evidenciaría sobre la cuantía de los daños.
Por su parte, Ross Pepper propone que, si el demandante falla en presentar esta prueba, el tribunal podrá presumir que la evidencia no presentada hubiese sido adversa a la reclamación del demandante. Ross Pepper, supra, pág. 15. | 01-03-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/3435941/ | The defendant, Des Moines Mutual Insurance Association, executed and delivered its policy on May 11, 1929, to the plaintiff (appellant), Ed Welty, insuring his share of the crop on certain described real estate in Woodbury County, Iowa, for the year 1929. A hailstorm occurred June 30, 1929.
The petition in this cause was filed on the 18th day of February, 1930. The next term of the district court of Woodbury County, Iowa, commenced March 3, 1930. On the 10th day of March, the plaintiff took default judgment against the defendant in the sum of $4,000, which represented, as alleged, a total loss of the crops in question through hail damage. On the 25th day of March, 1930, the defendant insurance company filed its application or motion to set aside the default, accompanied by affidavit of merits and its answer to the petition. This was in conformity to the statute. Section 11589, Code, 1927.
It appears from the affidavit of merits filed by the defendant that plaintiff's original notice was, upon its receipt by the defendant insurance company, sent to the legal firm of Jepson, Struble Sifford, Sioux City, Iowa. The envelope containing the original notice was lost, and the firm of attorneys to whom it was addressed never received same. The non-delivery of the envelope may not be said to have happened through any fault of the party sending the same.
The proposition involved on this appeal is readily determined.Barber v. Shattuck, 207 Iowa 842, is stare decisis here. In that case the plaintiff commenced action against the defendant for damages growing out of false and fraudulent pretenses. There was a judgment by default. The defendant made application to set aside the default, and relief was granted, and the trial court vacated the judgment. It is said in opinion:
"From that judicial action, appellant is now attempting to appeal. Does he have the right so to do? We are constrained to answer in the negative."
It was held that an order setting aside a default judgment is nonappealable. It must be borne in mind that we are not dealing *Page 1137
with an order that "grants or refuses a new trial," within the meaning of Section 12823, Paragraph 3, Code, 1927.
The appeal is — Dismissed.
FAVILLE, C.J., and STEVENS, ALBERT, and WAGNER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435953/ | The questions presented for our decision herein arise upon the pleadings. *Page 603
Plaintiff filed a petition asserting that it is the unqualified owner and entitled to possession of certain described personal property of the value of $875.73. Plaintiff also asserted that it has sustained damage by reason of the loss of the use of said property in the sum of $250. The prayer of the petition, as amended, was that a writ of replevin issue, that plaintiff have judgment for the property, or its value, and damages for its wrongful detention. A writ of replevin was issued, the property seized and turned over to the plaintiff on September 9, 1938.
The answer of the defendant Nick Stergios consisted of a general denial and also the assertion that he purchased the property from the plaintiff, became the owner thereof and entitled to its possession until June 1938, when he sold the same to his wife, and since said date claims no ownership or right to possession. The answer of the defendants Wink and Currence asserted that the property described in the petition was owned by the said Nick Stergios and his wife and the defendants claimed no ownership or right to possession. Plaintiff's reply to such answers consisted of a general denial.
On December 21, 1938, pursuant to leave of court, the intervener, Verda M. Stergios, wife of the defendant Nick Stergios, filed her petition of intervention, asserting that prior to June 30, 1938, the property was owned by her and her husband; on said date her husband executed a bill of sale to her; on September 9, 1938, the property was wrongfully taken by the plaintiff on writ of replevin; the value of the property was $685.50; her damages for loss of possession were $214; she asked for return of the property or judgment for its value, together with damages in the sum of $214, interest and costs.
On December 28, 1938, the court entered an order requiring plaintiff to answer the petition of intervention not later than January 4, 1939. On January 3, 1939, plaintiff filed a temporary reply to the petition of intervention, which consisted of a general denial and was not verified. The intervener filed a motion to strike the temporary reply for the reason that it was not verified and for default and judgment against the plaintiff. On January 19, 1939, the court entered an order sustaining *Page 604
the motion to strike, overruling the motion for default and judgment, and granting plaintiff until February 1, 1939, to answer the petition of intervention. On January 27, 1939, the plaintiff filed an answer to the petition of intervention which consisted of a general denial and was verified.
On May 23, 1939, the defendant Nick Stergios and his wife, the intervener, filed a motion to strike the plaintiff's petition and all amendments thereto for the reason that the allegations therein showed a claim and prayer for relief in an amount in excess of $1,000 and in excess of the jurisdiction of the court. On June 9, 1939, this motion was sustained. On the following day, the defendants and intervener filed a motion for judgment on the pleadings, which asserted that the plaintiff's petition, as amended, had been stricken; there were no material issues tendered by the pleadings; no issues remained undisposed of for trial; the record showed the writ of replevin was unlawfully issued, the seizure of the property thereunder illegal, the intervener entitled to judgment on the merits for the possession of the property or the value thereof, and for damages; the plaintiff was in default, and there was nothing remaining for the court to do but enter judgment against the plaintiff and its surety as provided by law and as prayed for in the petition of intervention.
On July 1, 1939, the motion for judgment on the pleadings came on for hearing. The parties appeared by counsel. The motion was argued and taken under advisement. On July 26, 1939, the motion was sustained with provision that evidence as to value would be taken at a later date, to be set by the court, and judgment to be entered thereon. No later date appears to have been set by the court, but, on August 9, 1939, evidence was introduced on behalf of the intervener, in the absence of the plaintiff, pursuant to which evidence the court determined that the value of the property was $650, the intervener's damages $150, and judgment was entered in favor of intervener for $800, with interest and costs. From this judgment, the plaintiff and the surety on its replevin bond appeal.
[1] This court has repeatedly recognized that the statutes *Page 605
of procedure in this state do not contemplate a motion for judgment on the pleadings. Notwithstanding this fact, such a motion has been entertained. The circumstances which would justify such a motion are stated in our recent decision of Briley v. Board of Supervisors, 227 Iowa 55, 57, 287 N.W. 242, at the commencement of said opinion, as follows:
"This case comes to us on an appeal from an order sustaining a motion for judgment for plaintiff on the pleadings. While there is no statutory authorization for such a motion, it has been the practice of trial courts in this state to permit the filing of such a motion where the allegations of the answer raise no issue to be tried as, for instance, where the answer admits the amount due as claimed by plaintiff. Viall v. First National Bank,115 Iowa 11, 87 N.W. 733. In other cases the procedure has been treated as by mutual consent of the parties. Crom v. Henderson,182 Iowa 89, 165 N.W. 397; State ex rel. Freeman v. Carvey,175 Iowa 344, 154 N.W. 931; and Hilsinger v. Zimmerman Steel Company,193 Iowa 708, 187 N.W. 493."
At the close of the opinion, 227 Iowa, at page 61, 287 N.W., at page 244, we state: "On this record, motion for judgment on the pleadings would not lie for the reason that, under the answer of defendants, an issue of fact was raised and the motion should have been overruled."
By reason of the foregoing, it is apparent that the motion for judgment on the pleadings herein should not be sustained if the pleadings raised issues of fact to be tried. Apparently the trial court overlooked the fact that, after the temporary reply to the petition of intervention had been stricken because not verified, the plaintiff filed an answer, which was verified and was timely filed. The answer to the petition of intervention was a general denial. The motion for judgment of the pleadings sought a judgment in favor of the intervener, as prayed for in her petition of intervention. Intervener's prayer for relief depended upon her assertion of ownership, which was denied. The answer to the petition of intervention raised disputed issues to be tried before such relief could be ordered by the court. The *Page 606
assertion in the motion that there were no such issues is contrary to the record.
[2] The same thing is true as to the Contention that plaintiff was in default. In the case of La Forge v. Cooter, 220 Iowa 1258, 1262, 264 N.W. 268, 270, we state:
"It has been held by this court that judgment by default should not be entered while an answer is on file. See Arbuckle v. Bowman, 6 Iowa, page 70; Key v. Hayden, 13 Iowa 602; Douglass v. Langdon Bros., 29 Iowa 245. * * * When an answer is on file, no default can be entered for want of a plea, and certainly no default can be entered for want of an appearance until the case is regularly assigned or comes on for hearing in accordance with the rules of the court."
Under the record herein, the intervener was not entitled to judgment in the summary manner employed by the trial court. There were issues of fact to be tried and determined before she would be entitled to judgment. Trial on such issues was denied the plaintiff. The court erred in sustaining the motion for judgment on the pleadings. The judgment thereafter entered was pursuant to such erroneous ruling and is likewise erroneous.
[3] In view of the disposition of this cause above stated, it is not necessary to discuss or decide other propositions raised by appellants. Appellee has filed a motion to dismiss on the ground that the question here presented is moot. Ordinarily, such a motion is made to depend upon facts arising subsequent to the entry of the judgment. The facts upon which the appellees' motion is based are asserted to have occurred before judgment was entered in the court below. They should have been presented to the trial court but were not. They are not properly presented to this court. The motion to dismiss is overruled.
By reason of the foregoing, the judgment herein appealed from must be and it is reversed. — Reversed.
HAMILTON, C.J., and HALE, STIGER, SAGER, MITCHELL, BLISS, and RICHARDS, JJ., concur. *Page 607 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2902943/ | COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
RUBEN ORTIZ, §
No. 08-07-00045-CR
Appellant, §
Appeal from the
v. §
409th District Court
THE STATE OF TEXAS, §
of El Paso County, Texas
Appellee. §
(TC# 20060D03406)
§
OPINION
This is an appeal from a jury conviction for the offense of family-violence assault, enhanced
to a felony offense by the allegation of a prior conviction for family-violence assault. At the
punishment stage of trial, Appellant pleaded true to an enhancement paragraph which alleged a prior
felony conviction for possession of a controlled substance. The jury assessed punishment at thirteen
years’ imprisonment. We affirm.
Appellant’s court-appointed counsel has filed a brief in which she has concluded that the
appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v.
California, 386 U.S. 738, 87 S. Ct. 1396 (1967), by presenting a professional evaluation of the
record, demonstrating why, in effect, there are no arguable grounds to be advanced. See High v.
State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978); Currie v. State, 516 S.W.2d 684 (Tex.
Crim. App. 1974); Jackson v. State, 485 S.W.2d 553 (Tex. Crim. App. 1972); Gainous v. State, 436
S.W.2d 137 (Tex. Crim. App. 1969). A copy of counsel’s brief and the appellate record were
delivered to Appellant, and Appellant was advised of his right to file a pro se brief. Appellant did
1
file a pro se brief, and the State has filed a reply brief.
The Court of Criminal Appeals directs that we not address the merits of issues raised in
Anders briefs or in pro se responses thereto. Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim.
App. 2005). We may only determine (1) that the appeal is wholly frivolous and issue an opinion
explaining that we have reviewed the record and find no reversible error; or (2) that arguable grounds
for appeal exist and remand the cause to the trial court, so that new counsel may be appointed to brief
the issues. Id.
We have carefully reviewed the record and counsel’s brief and agree that the appeal is wholly
frivolous and without merit. Further, we find nothing in the record that might arguably support the
appeal.
The judgment is affirmed.
KENNETH R. CARR, Justice
September 11, 2008
Before Chew, C.J., McClure, and Carr, JJ.
(Do Not Publish)
2 | 01-03-2023 | 09-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2948617/ | IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-76,973
EX PARTE ROSLYN MARIE TURNER, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 10CR1181 IN THE 405TH DISTRICT COURT
FROM GALVESTON COUNTY
Per curiam.
OPINION
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the
clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty, was convicted of
possession of a controlled substance, and sentenced to three years’ imprisonment. She did not appeal
her conviction.
Applicant contends that her due process rights were violated because a forensic scientist did
not follow accepted standards when analyzing evidence and therefore the results of his analyses are
unreliable. The State and the trial court agreed that relief was warranted before remand, but the
record was insufficient to decide the case at that time. This Court remanded the application to obtain
2
more information. Specifically, the Court needed three additional pieces of information to resolve
this case: (1) a copy of the Department of Public Safety (DPS) report Applicant was relying on for
her claim; (2) a determination that the lab technician named in that report was the only scientist that
worked on this sample; and (3) a finding as to whether the sample was destroyed or could be
retested. The trial court has now provided this Court with all the information necessary to resolve
this case on the merits. The DPS report shows that the lab technician who was solely responsible
for testing the evidence in this case is the scientist found to have committed misconduct, and the
evidence in this case has been destroyed and therefore cannot be retested. Applicant is therefore
entitled to relief.
Relief is granted. The judgment in Cause No. 10CR1181 in the 405th District Court of
Galveston County is set aside, and Applicant is remanded to the custody of the Sheriff of Galveston
County. The trial court shall issue any necessary bench warrant within 10 days after the mandate of
this Court issues.
Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional
Institutions Division and Pardons and Paroles Division.
Delivered: February 27, 2013
Publish | 01-03-2023 | 09-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3099392/ | NO. 07-10-0439-CR
NO. 07-10-0440-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
JUNE 29, 2012
______________________________
DEMETRIS ANTWAN WHITE, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 242[ND] DISTRICT COURT OF HALE COUNTY;
NOS. B18407-1005, B18408-1005; HONORABLE ED SELF, JUDGE
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION ON REHEARING
This Court originally issued an opinion on May 3, 2012. Appellant, Demetris Antwan White, filed a Motion for Rehearing requesting that we delete Footnote 3 pertaining to the procedural history of this case. Having reviewed Appellant's motion and the State's response, we believe Appellant's motion to be meritorious. Accordingly, we hereby withdraw our opinion of May 3, 2012, and substitute this opinion in lieu thereof.
Appellant, Demetris Antwan White, was convicted by a jury of assaulting a public servant and evading arrest/detention. He was sentenced by the jury to four years confinement, suspended in favor of five years community supervision, and fined $250.00 in the assault offense and two hundred days confinement, not suspended, and a fine of $250.00 in the evading arrest/detention offense. In two issues, Appellant asserts the trial court erred in (1) admitting extraneous offense evidence of a prior, uncharged evading arrest offense; and (2) submitting an extraneous offense instruction to the jury at the conclusion of the guilt/innocence phase that was an improper comment on the weight of the evidence by the trial judge. We modify the judgment in Cause No. B18407-1005 to delete the order that Appellant pay $2,340.00 in court-appointed attorney's fees and affirm that judgment as modified, and we affirm the judgment in Cause No. B18408-1005.
Background
Officer Korey Ferguson of the Plainview Police Department attempted to stop a motor vehicle for a traffic offense when that vehicle suddenly sped away. Eventually the vehicle came to a stop, whereupon the driver exited and immediately began running. During the foot chase that followed, the fleeing suspect grabbed a bicycle and flung it in the officer's direction, striking him on and below the knee. At trial, Officer Ferguson testified that it was at this point that he recognized that suspect as being Appellant. The chase continued across a couple of fences and into an alley where, at some point, the suspect being pursued struck Officer Ferguson in the chest with his forearm and avoided detention. The suspect then entered a residence and locked the door. The officer returned to the vehicle and identified it as being registered to Appellant's cousin, Stephanie White.
Both Appellant and the State concede that the primary issue raised by the defense was the identity of the person who fled from the scene of the traffic stop and assaulted Officer Ferguson. After Appellant raised the issue of identity through cross-examination, Officer Ferguson testified on redirect that he had seen Appellant three or four times prior to the incident, had verbal contact with him in all but one of those prior contacts, and did not have verbal contact during that particular contact because Appellant "evaded me." Appellant objected to the "relevance" of this statement, contending it was evidence of "extraneous conduct." Even though the trial court overruled those objections, Appellant did not request an immediate limiting instruction.
Extraneous Offenses
In his first issue, Appellant claims the trial court erred in admitting Officer Ferguson's statement that Appellant had previously "evaded me" because that evidence was irrelevant, constituted an inadmissible extraneous offense, and was substantially more prejudicial than probative. See Tex. R. Evid. 401, 403 & 404(b).
Because trial courts are in the best position to decide substantive admissibility questions, we review a trial court's ruling under an abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990) (op. on reh'g); Powell v. State, 63 S.W.3d 435, 438 (Tex.Crim.App. 2001). To obtain a reversal of a conviction based on error in the admission of evidence, an appellant must establish that the trial court's ruling was outside the zone of reasonable disagreement and the error affected his substantial rights. Tex. R. App. P. 44.2(b); Montgomery, 810 S.W.2d at 391. As with other trial errors, to preserve an evidentiary complaint on appeal, the appellant must raise a specific complaint at trial, Tex. R. App. P. 33.1(a)(1)(A), and the appellant's point of error on appeal must comport with his objection at trial. See Guevara v. State, 97 S.W.3d 579, 583 (Tex.Crim.App. 2003) (holding that appellant failed to preserve any error regarding admission of evidence because his objection at trial did not comport with complaint raised on appeal).
As to Appellant's Rule 401 argument, while relevant evidence is generally admissible, evidence which is not relevant is inadmissible. Tex. R. Evid. 402. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without that evidence. Tex. R. Evid. 401.
Here, Appellant's counsel thoroughly attacked Officer Ferguson's credibility by questioning his ability to identify Appellant while he was caught up in a chase through poorly lit areas at night. Appellant also offered the testimony of Twila Hines, Appellant's friend, who testified that another person was driving the vehicle that Officer Ferguson attempted to stop; Neva Yarbrough, Appellant's girlfriend, who testified Appellant was in another town playing cards at the time of the incident; and Stephanie White, who testified she had no idea what Appellant was doing at the time of the incident, but that he never drove her vehicle. Accordingly, the determination of the identity of the person fleeing from Officer Ferguson was a fact of significant consequence to the determination of the action. An extraneous offense may be admissible, to show the identity of the accused. Tex. R. Evid. 403(b). Therefore, evidence pertaining to identity was relevant and the trial court's decision to deny Appellant's objection on the basis of Rule 401 lies within the zone of reasonable disagreement. See Page v. State, 213 S.W.3d 332, 336 (Tex.Crim.App. 2006) (holding that evidence of an extraneous offense is relevant and may be admissible when the issue of identity has been raised by defense counsel's cross-examination).
As to Appellant's Rule 403 argument, Appellant did not make this argument at trial. Because his complaint on appeal does not conform to his complaint at trial, those arguments are waived. Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002); Veleta-Hernandez v. State, No. 07-10-0460-CR, 2012 Tex. App. LEXIS 3099, at *19 (Tex.App.--Amarillo April 19, 2012, no pet. h.).
As to Appellant's Rule 404(b) argument, Appellant contends the complained of evidence was inadmissible because the State failed to provide notice of its intent to use that evidence after he had made a timely request for such notice. See Hernandez v. State, 176 S.W.3d 821, 824 (Tex.Crim.App. 2005) (holding that Rule 404(b) literally conditions the admissibility of other-crimes evidence on the State's compliance with the notice provision contained therein). Rule 404(b) states, in relevant part:
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of . . . identity, . . . provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State's case-in-chief such evidence other than that arising in the same transaction.
(Emphasis added).
Because the complained of evidence was not introduced during the State's case-in-chief, but was instead offered in rebuttal to the defense raised by cross-examination of the State's witness, Appellant was not entitled to notice pursuant to Rule 404(b). Jaubert v. State, 74 S.W.3d 1, 4 (Tex.Crim.App. 2002).
In addition, after reviewing the record, we have a fair assurance that even if the admission of the complained of evidence was error, it did not influence the jury or had but a slight effect and we conclude that it did not have a substantial or injurious effect on the jury's verdict and did not affect Appellant's substantial rights. See King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). Accordingly, we further hold that any error in admitting the complained of evidence would have been harmless. Tex. R. App. P. 44.2(b). Appellant's first issue is overruled.
Jury Charge
In issue two, Appellant asserts the trial court's limiting instruction on extraneous offenses was an improper comment on the weight of the evidence. Appellate review of purported error in a jury charge involves a two-step process. Middleton v. State, 125 S.W.3d 450, 453 (Tex.Crim.App. 2003). First, we determine whether the jury instruction was erroneous. Id. Second, if error occurred, then an appellate court must analyze that error for harm. Id. The issue of error preservation is not relevant until harm is assessed because the degree of harm required for reversal depends on whether the error was preserved. Id.
If, as here, Appellant offered no objections to the charge, charge error does not require reversal unless he can show "egregious harm." Almanza v. State, 686 S.W.2d 157, 174 (Tex.Crim.App. 1985) (op. on reh'g), reaffirmed, Middleton v. State, 125 S.W.3d 450, 453 (Tex.Crim.App. 2003). Errors that result in egregious harm are those that affect the very basis of the case, deprive the defendant of a valuable right, vitally affect the defensive theory, or make a case for conviction clearly and significantly more persuasive. Taylor v. State, 332 S.W.3d 483, 489 (Tex.Crim.App. 2011). Appellant contends he was egregiously harmed by the improper instruction because identity was the sole defense advanced by him at trial and the instruction directed the jury's attention to the complained of testimony.
First, we note that we have already found that the complained of testimony was both relevant and admissible. Secondly, "[b]ecause the court used the phrases `if any were committed' and `if any' in the limiting instruction, the instruction does not constitute a comment on the weight of the evidence." Easter v. State, 867 S.W.2d 929, 941 (Tex.App. -- Waco 1993, pet. ref'd). Finding no error by the trial judge in charging the jury with the limiting instruction given in this case, Appellant's second issue is overruled.
Attorney's Fees
We also note an issue not raised by Appellant regarding the assessment of attorney's fees. The written judgment in Cause No. B18407-1005 orders the defendant to pay court-appointed attorney's fees totaling $2,340.00. In order to assess attorney's fees in a judgment, a trial court must determine the defendant has financial resources that enable him to offset in part or in whole the costs of legal services provided. Tex. Code Crim. Proc. Ann. art. 26.05(g) (West Supp. 2011). Furthermore, the record must reflect some factual basis to support that determination. Barrera v. State, 291 S.W.3d 515, 518 (Tex.App.--Amarillo 2009, no pet.); Perez v. State, 280 S.W.3d 886, 887 (Tex.App.--Amarillo 2009, no pet.). The record in this case does not contain any evidence to support such a determination. Therefore, we conclude that the order to pay attorney's fees was improper. See Mayer v. State, 309 S.W.3d 552, 555-56 (Tex.Crim.App. 2010). When the evidence does not support an order to pay attorney's fees, the proper remedy is to delete the order. Id. at 557. Accordingly, we modify the judgment in Cause No. B18407-1005 to delete the order that Appellant pay $2,340.00 in court-appointed attorney's fees.
Conclusion
The judgment in Cause No. B18407-1005 is modified to delete the order that Appellant pay $2,340.00 in court-appointed attorney's fees and we affirm that judgment as modified. The judgment in Cause No. B18408-1005 is affirmed.
Patrick A. Pirtle
Justice
Do not publish. | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3227052/ | In the court below, this appellant was tried upon a complaint containing two counts. The first count charged him with the offense of using abusive, insulting, or obscene language, in the presence or hearing of a woman. The second count charged the offense of public drunkenness.
Upon the trial in the court below, there was a general verdict of guilty as charged in the complaint, and the jury assessed a fine against him. Failing to pay the fine, and costs, or to confess judgment therefor, the court duly sentenced him to perform hard labor for the county for the correct period of time as provided by statute.
From the judgment of conviction which appears regular in all respects, this appeal was taken.
There is no bill of exceptions. Motion for a new trial, based upon fourteen separate and distinct grounds, is incorporated in the record; but in the absence of a bill of exceptions, the action of the court overruling and denying said motion may not be considered on this appeal.
There is no error apparent on the record, therefore the judgment of conviction from which this appeal was taken will stand affirmed.
Affirmed. *Page 239 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/128182/ | 538 U.S. 923
ROPER, SUPERINTENDENT, POTOSI CORRECTIONAL CENTERv.SIMMONS.
No. 02-1057.
Supreme Court of United States.
March 24, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT.
2
C. A. 8th Cir. Certiorari denied. Reported below: 299 F. 3d 929. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/2899975/ | BRIAN MILLSAP V. SHOW TRUCKS USA, INC.
NO. 07-08-0307-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JANUARY 6, 2009
______________________________
AARON JAMEL LEWIS,
Â
Appellant
v.
THE STATE OF TEXAS,
Â
Appellee
                                    _________________________________
FROM THE 181st DISTRICT COURT OF POTTER COUNTY;
NO. 50,322-B; HON. JOHN B. BOARD, PRESIDING
_______________________________
ON ABATEMENT AND REMAND
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
          Aaron Jamel Lewis (appellant) appeals from his conviction for possession of a
controlled substance in a drug-free zone. He filed his notice of appeal on July 22, 2008.
The clerkâs record was filed on October 24, 2008, the reporterâs record on October 17,
2008, and a supplemental clerkâs record on December 8, 2008. Appellantâs brief was due
on November 24, 2008. Neither a brief nor a motion for extension was filed by that date
with the court. On December 10, 2008, the court sent a letter to appellant notifying him
that the brief was overdue and that the brief or response was due on December 22, 2008.
On December 11, 2008, counsel for appellant filed a motion for extension of time to file
appellantâs brief, which was granted to December 29, 2008. To date, no brief or extension
motion has been filed.
          Consequently, we abate the appeal and remand the cause to the 181st District Court
(trial court) for further proceedings. Upon remand, the trial court shall immediately cause
notice of a hearing to be given and, thereafter, conduct a hearing to determine the
following:
          1.       whether appellant is indigent;
Â
          2.       whether appellant desires to prosecute the appeal;
Â
3. whether appellant has been denied the effective assistance of
counsel due to appellate counselâs failure to timely file an appellate
brief. See Evitts v. Lucey, 469 U.S. 387, 394, 105 S. Ct. 830, 834-35,
83 L. Ed. 2d 821, 828 (1985) (holding that an indigent defendant is
entitled to the effective assistance of counsel on the first appeal as of
right and that counsel must be available to assist in preparing and
submitting an appellate brief).
          We further direct the trial court to issue findings of fact and conclusions of law
addressing the foregoing subjects. Should the trial court find that appellant desires to
pursue the appeal, is indigent, and has been denied effective assistance of counsel, we
further direct it to appoint new counsel to assist in the prosecution of the appeal. The
name, address, phone number, telefax number, and state bar number of the new counsel,
if any, who will represent appellant on appeal must also be included in the courtâs findings
of fact and conclusions of law. Furthermore, the trial court shall also cause to be
developed 1) a supplemental clerkâs record containing the findings of fact and conclusions
of law and 2) a reporterâs record transcribing the evidence and argument presented at the
aforementioned hearing. Additionally, the trial court shall cause the supplemental clerkâs
record to be filed with the clerk of this court on or before February 5, 2009. Should
additional time be needed to perform these tasks, the trial court may request same on or
before February 5, 2009.
          It is so ordered.
Â
                                                                           Per Curiam
Do not publish.
icer to ask. James v. State,
102 S.W.3d 162, 173 (Tex. App.-Fort Worth 2003, pet. ref'd); Leach v. State, 35 S.W.3d
232, 235 (Tex. App.-Austin 2000, no pet.). Nor does the encounter become a further
detention simply due to the request for permission to search. Vargas v. State, 18 S.W.3d
247, 252-53 (Tex. App.-Waco 2000, pet. ref'd). Further, the officer is not required to inform
the occupants that they are free to leave. Id. at 252 n.1.
At bar, the evidence shows that the officer requested permission from the driver to
search the vehicle and that consent to do so was voluntarily given. Thus, he was
authorized to act upon the consent given him. And, it reasonably falls within the scope of
the consent granted by the person in control of the vehicle to ask those in the car to exit it
so the search can be conducted.
Next, while the officer did ask both occupants to empty their pockets, the contents
of their respective pockets were not in issue here; indeed, the record does not even
indicate what the contents were. Rather, it was what the officer saw on the appellant's
forearms after she emptied her pockets that caused him to question her further. The garb
she wore was such that it allowed him to observe scars and red, scabby needle tracks
extending from her wrists to her elbows. Being uncovered, red, scabby and perceivable
by the eye, the trial court could have reasonably inferred from the evidence that they were
in plain view. See Walter v. State, 28 S.W.3d 538, 541-42 (Tex. Crim. App. 2000), quoting
Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993), (defining
plain view as contraband left in open view and observed by a police officer from a lawful
vantage point so that no invasion of a legitimate expectation of privacy has occurred). And,
being in plain view, the officer need not have had reasonable suspicion or probable cause
to mentally seize what he saw; that is, being in plain view, neither the federal or state
constitutions required the officer to ignore, or prevented him from testifying about, the
marks even if we were to assume that he had no basis to ask appellant to empty her
pockets. (2) So too could it be said that the marks and what they indicated (i.e. recent drug
use) created reasonable suspicion that criminal activity was afoot and appellant was
involved in it. See Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001) (defining
reasonable suspicion as specific articulable facts when combined with rational inferences
from those facts which would lead an officer to reasonably suspect that a particular person
has engaged or is or soon will be engaging in criminal activity). Thus, the officer had lawful
basis to temporarily detain appellant and ask her questions sufficient to either negate or
substantiate that suspicion. See Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App.
1997) (discussing the scope of the investigation that the officer may undertake if
reasonable suspicion of criminal activity exists).
Next, in questioning appellant about whether she used methamphetamine, he
discovered that she did. This, coupled with the officer's belief (based upon his having seen
like marks on "many occasions") that the tracks indicated "recent use" of the drug, the
officer's observation of the Crown Royal bag in appellant's open purse, and his knowledge
and experience that drugs are often kept in Crown Royal bags (3) constituted facts sufficient
to justify the conclusion that drugs were probably in the bag. (4) See Rojas v. State, 797
S.W.2d 41, 43 (Tex. Crim. App. 1990) (stating that probable cause to search "exists when
the facts are sufficient to justify the conclusion that the property which is the object of the
search is probably in the area to be searched"). So, the totality of the circumstances would
permit a trial court to find that the officer had probable cause (under both the federal and
state constitutions) to remove the bag from the purse and search it for drugs.
Accordingly, we 1) conclude that the trial court did not abuse its discretion by
denying the motion to suppress, 2) overrule the two issues before us, and 3) affirm the
judgment rendered below.
Brian Quinn
Justice
Publish.
1. The Fourth Amendment to the federal constitution and article I, §9 of the Texas Constitution are the
same in material aspects but are to be construed independently. Richardson v. State, 865 S.W.2d 944, 948
(Tex. Crim. App. 1993); Uresti v. State, 98 S.W.3d 321, 329 (Tex. App.--Houston [1st Dist.] 2003, no pet.)
2. Nothing of record suggests that but for the request to empty her pockets, the marks on her bare arms
would not have been seen.
3. See Jurdi v. State, 980 S.W.2d 904, 906 (Tex. App.-Fort Worth 1998, pet. ref'd) (wherein
methamphetamine and drug paraphernalia was found in a Crown Royal bag); Hollis v. State, 971 S.W.2d 653,
655 (Tex. App.-Dallas 1998, pet. ref'd) (wherein the officer found cocaine in a Crown Royal bag and testified
that such bags are often used to carry drugs); Wells v. State, 968 S.W.2d 483, 484 (Tex. App.-Eastland 1998,
pet. ref'd), cert. denied, 526 U.S. 1021, 119 S. Ct. 1259, 143 L. Ed. 2d 355 (1999) (wherein drug paraphernalia
was discovered in a Crown Royal bag); Rhodes v. State, 913 S.W.2d 242, 249 (Tex. App.-Fort Worth 1995),
aff'd, 945 S.W.2d 115 (Tex. Crim. App. 1997) (wherein officers testified that in their experience, Crown Royal
bags are frequently used to carry drugs);
4. Appellant contradicted the officer's testimony that her purse was open and the Royal Crown bag in
plain view. This testimony, however, created a question of fact for the trial court to resolve. And, apparently,
the trial court resolved it against appellant. We defer to that finding given the applicable standard of review. | 01-03-2023 | 09-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2886468/ | NO. 07-02-0020-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
NOVEMBER 14, 2002
______________________________
IN THE INTEREST OF K.D.K., A MINOR CHILD
_________________________________
FROM THE 253RD DISTRICT COURT OF LIBERTY COUNTY;
NO. 51,737; HON. CHAP B. CAIN, III, PRESIDING
_______________________________
Before QUINN and REAVIS, JJ., and BOYD, SJ.1
In this appeal, the Attorney General of Texas (the State) challenges a judgment of
the trial court holding that appellee Ralph Paul Keeling (Ralph) owes no arrearage in child
support and is entitled to a reimbursement from the State for wages and tax refunds
withheld. In three issues, the State contends 1) Ralph’s payment of child support directly
to his former spouse could not discharge his debt because his former spouse had
assigned her right to receive child support to the State and Ralph received notice of that
assignment, 2) Ralph failed to exhaust his administrative remedies so the trial court lacked
jurisdiction to render judgment against the State, and, alternatively, 3) Ralph’s failure to
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).
use available administrative remedies waived his counterclaim for reimbursement from the
State. We reverse the judgment of the trial court and remand for a new trial.
Background
Ralph and Vikki Keeling were divorced by order dated August 30, 1996. Vikki was
awarded custody of their minor child, and Ralph was ordered to pay child support at the
rate of $200 per month ($100 semi-monthly). That decree directed that child support
payments were to be made to the district clerk’s office and that any direct payments to
Vikki were deemed in addition to and not in lieu of his child support obligation. There was
also a warning in capital letters as follows: “FAILURE OF A PARTY TO MAKE A CHILD
SUPPORT PAYMENT TO THE PLACE AND IN THE MANNER REQUIRED BY A COURT
ORDER MAY RESULT IN THE PARTY NOT RECEIVING CREDIT FOR MAKING THE
PAYMENT.”
In December 1996, a notice of assignment was filed showing that Ralph was
ordered to pay child support to the Attorney General because his child was receiving
financial assistance under the Aid to Families with Dependent Children Program (AFDC).
On December 20, 1996, the court signed an order directing that payments were to be
made to the Office of the Attorney General through the registry of the court. Despite these
circumstances and the admonitions in the divorce decree, Ralph continued to make his
monthly support payments directly to Vikki. Ralph also bought Vikki a vehicle for which
she gave him credit against his future support payments.
The State subsequently filed a motion for enforcement of the child support order
and sought collection of the amounts Ralph failed to pay to the State. Ralph’s employer
2
was also administratively ordered to withhold payments, and the State intercepted his
federal tax refund.
The trial court held a hearing and found there was no arrearage in Ralph’s child
support obligation and that he was entitled to reimbursement of $5,463 from the State for
monies which were wrongfully withheld or garnished. The State appealed.
Issue One - Discharge of Obligation to the State
In the first issue, it is argued that because Ralph received notice of the assignment
of Vikki’s child support payments to the State, he could not legally discharge his obligation
by making payments directly to her. Thus, the trial court erred in declaring that he owed
the State nothing. We agree and sustain the issue.
As authorized by federal law, the approval of an application for financial assistance
constitutes an assignment to the Office of the Attorney General of any right the applicant
or his child has to child support from any other person. TEX . FAM . CODE ANN . §231.104(a)
(Vernon 2002). Thus, once Vikki applied for and began receiving AFDC benefits, the State
was entitled to receive (via assignment) Ralph’s child support payments as reimbursement
for the financial assistance being given to Vikki. In the Interest of A.M.E., 71 S.W.3d 401,
403 (Tex. App.—San Antonio 2001, no pet.) (holding to that effect).
Moreover, Ralph did not argue that he failed to receive notice of the assignment of
Vikki’s right to child support or of the court’s order directing payment to the State. Indeed,
after those documents were executed, he communicated to the State and explained that
he was making the payments directly to Vikki because when she received child support
3
from the district clerk the money took too long to reach her and she did not receive the full
$200 per month. Thus, it is clear that he knew of the assignment in question.
Parties to a divorce decree do not have the authority to modify a child support
obligation without court approval. State v. Borchers, 805 S.W.2d 880, 882 (Tex.
App.—San Antonio 1991, writ denied). Nor may they opt to disregard federal and state law
effectuating assignments. Thus, by law, Ralph’s support payments belonged to the State,
and sending them directly to Vikki did not somehow negate the State’s right to them. And,
though Ralph delivered the payments to someone other than the assignee, he remains
liable for their payment to the State. See Buffalo Pipeline Co. v. Bell, 694 S.W.2d 592, 596
(Tex. App.—Corpus Christi 1985, writ ref’d n.r.e.); (holding that after the debtor receives
notice of a valid assignment, payment made by the debtor to the assignor or to any person
other than the assignee does not discharge the debtor from liability to the assignee);
Manes Const. Co., Inc. v. Wallboard Coatings Co., Inc., 497 S.W.2d 334, 337 (Tex. Civ.
App.—Houston [14th Dist.] 1973, no writ) (holding that where the account debtor paid
money directly to the assignor of accounts receivable at a time when he had actual notice
of the assignment, the debtor subjected himself to double liability). Therefore, the trial
court erred in finding that Ralph was not indebted to the State and in rendering judgment
in favor of Ralph for the monies or tax refunds withheld from his pay and intercepted,
respectively.
Our disposition of this issue relieves us from having to address the State’s
remaining issues. Accordingly, we reverse the judgment of the trial court and remand the
cause for a new trial.
4
Brian Quinn
Justice
Do not publish.
5 | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3445423/ | Reversing.
The appellant, Andy Sizemore, was indicted in the Breathitt circuit court for the murder of Albert Noble, and on his trial in that court for the crime, by verdict of the jury, was found guilty thereof and his punishment fixed at imprisonment in the penitentiary for life. By this appeal he seeks the reversal of the judgment rendered by the trial court in approval of that verdict and directing its enforcement.
Only two of the several grounds upon which the appellant based his motion for a new trial made in and overruled by the court below, are relied on in the brief of appellant's counsel for the reversal of the judgment of conviction. The first of these two grounds is, that he was prevented from receiving a fair and impartial trial because of the bias and prejudice entertained towards and against him by two members of the jury, viz., S.P. Carpenter and William Griffith, arising, as alleged, out of the relationship sustained by each of them to Albert Noble, the victim of the homicide in question, and the family of the latter.
On the hearing of the appellant's motion for a new trial by the circuit court, it was established by the affidavit of one Cola Hudson, purporting to be based upon his acquaintance with the jurors, Carpenter and Griffith, and knowledge of their family connections and that of the deceased, in which, among other things, it is stated that Carpenter "is an uncle of Sam Noble, and that Sam Noble is an uncle of the deceased, Albert Noble;" that Griffith's "son, Bob Griffith, married a first cousin to the deceased, Albert Noble." The above statements contained in the affidavit of Hudson were corroborated by the affidavit of the appellant, which, however, as to those statements was based upon information received by the affiant after the trial or his case. It was, however, substantially further stated in the latter affidavit that though Carpenter and Griffith, the two jurors *Page 639
named, were each fully questioned on a voir dire examination under oath, with respect to their qualifications to sit as jurors in the trial of the appellant's case, neither of them disclosed the relationship then existing, as above stated, between him and the deceased or between his family and that of the deceased; that the appellant did not know that either of such relationships existed at the time Carpenter and Griffith were accepted or sworn as jurors, or during the trial; and that neither relationship did, in fact, become known to him or his counsel until after the return of the verdict finding him guilty of the murder of the deceased, and; furthermore, that Sam Noble, said in the affidavits to be an uncle of the deceased and the nephew of the juror Carpenter, was present throughout the appellant's trial, manifesting his interest in the prosecution.
Neither by affidavit, nor other method, did the Commonwealth introduce or offer any evidence to contradict that furnished by the affidavits filed in behalf of the appellant referred to, or to attack the credibility of the affiants, therefore the facts set forth therein must be accepted by us as true. With this in view, the question under consideration can, we think, be readily solved.
It is difficult to determine from the statements of the affidavits the precise nature of the kinship of the juror Carpenter to the deceased, i. e., whether it was one by consanguinity or by affinity. If it is the meaning of those statements that Carpenter was an uncle of the father of the deceased and therefore a great uncle of the deceased, the relationship was one by consanguinity; but if it is their meaning that Sam Noble, the uncle of the deceased, of whom Carpenter is said to be in uncle, was but a half-brother of the father of the deceased, that is, the son of the same father but of a different mother, who is, or was, a sister of Carpenter, then the kinship of the latter to the deceased was not one of consanguinity, but of affinity.
By Bouvier's Law Dictionary, vol 1, page 97, consanguinity is thus defined: "Relationship by blood," and affinity as "The connection existing in consequence of marriage, between each of the married persons and the kindred of the other." It is obvious from these definitions that the relationship shown to have been sustained by the juror Griffith to the deceased and his family was one by affinity. It is unnecessary, however, for us to classify the relationship here shown to have existed between *Page 640
each of the jurors, Carpenter and Griffith, and the deceased and his family, but sufficient to declare that, whether as to either it was a relationship by consanguinity or by affinity, such relationships manifestly were and are of a character that disqualified them as jurors in this case, and had they in proper time been made known to the appellant or the trial court, would, because of the bias, actual or implied, arising in contemplation of law from their existence, have required the exclusion of Carpenter and Griffith from service on the jury.
Both actual and implied bias are defined by the Criminal Code of this state; the first in section 209 and the second in the several subsections of section 210 of that volume. And in the latter section relationship by affinity as well as by consanguinity is named as a ground of disqualification. We have in this state no statute prescribing the degree of relationship within, or beyond, which the juror will be disqualified; and where this is the ease we know of no better rule for the courts to be guided by than that announced in 35 C. J., section 331:
"In the absence of statutory provision as to the degree of relationship, the question is to be determined by the court according to the probability of prejudice or partiality resulting therefrom, and the court may, on the ground or probable prejudice, sustain a challenge to a juror, although the relationship is not within the degree prescribed by statute as rendering the juror incompetent, or where the degree of relationship is uncertain, or where there is any family connection reasonably calculated to prevent the juror from being impartial, although not amounting to actual relationship. . . ."
While in numerous cases of homicide we have refused to reverse judgments of conviction because of the failure of the circuit court to grant appellant a new trial on account of bias or prejudice on the part of one or more of the trial jury, alleged to have resulted from their relationship to the person killed (Miracle v. Commonwealth, 148 Ky. 483; Mansfield v. Commonwealth, 163 Ky. 288), it will be found from an examination of those cases that the ruling of the trial court in refusing the appellant the new trial was based on evidence, furnished by the testimony of the juror or others, which contradicted that introduced by the appellant in support of the motion. *Page 641
But in the case at bar we must be controlled by the record before us; and in the absence of any evidence that might tend to prove that the jurors, Carpenter and Griffith, were not related to the deceased, or his family, as stated in the affidavits filed in support of the appellant's motion for a new trial, or if so related, that they were ignorant of it, or that such relationship was known to the appellant when he accepted the jury by which he was tried, we can but hold that the overruling of the appellant's motion for a new trial by the circuit court must be declared reversible error. For as said in the recently decided lease of Ellis and Whobrey v. Commonwealth, 207 Ky. 162:
"It is fundamental, and goes to the very root of the administration of justice, that parties litigant are, in jury trials, entitled to have their causes heard by unbiased and unprejudiced jurors." Leadingham v. Commonwealth, 180 Ky. 38; Brooks v. Commonwealth, 144 Ky. 107; Dailey v. Gaines, 1 Dana (31 Ky.) 529.
No reason is apparent for our passing on the appellant's contention with respect to the alleged newly discovered evidence, which was also made a ground for the new trial refused by the circuit court. As the judgment of the circuit court must be reversed upon the ground first considered, and the case remanded to that court for another trial, the appellant will be afforded ample time to procure the evidence referred to for such trial. Other rulings of the trial court complained of in the record as error, but which have not been discussed or urged in the brief of appellant's counsel as grounds for reversal, will not be passed on; and in view of the retrial of the case yet to occur, we have refrained from discussing the evidence contained in the record, or expressing any opinion as to its weight or effect.
For the reasons indicated, the judgment of the circuit court is reversed and cause remanded to that court with directions to set it aside and grant the appellant a new trial, and for such further proceedings as may not be inconsistent with the opinion herein. *Page 642 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3063665/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-14431 APRIL 1, 2009
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 08-00142-CV-ORL-28-GJK
UNITED STATES OF AMERICA,
Petitioner-Appellee,
versus
RUSSELL GENTILE,
Respondent-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 1, 2009)
Before BIRCH, HULL and FAY, Circuit Judges.
PER CURIAM:
Russell Gentile appeals the district court’s order denying his motion to
vacate, brought pursuant to Fed.R.Civ.P. 60(b)(4). Gentile’s motion sought
vacatur of the district court’s underlying order granting the government’s petition
for approval of a levy on Gentile’s primary residence, pursuant to Internal Revenue
Code (“I.R.C.”) § 6334(e)(1). For the reasons set forth below, we affirm.
I.
The government filed a petition for judicial approval of a levy upon
Gentile’s primary residence, pursuant to § 6334(e)(1), for the purposes of
collecting $144,551.76 in unpaid federal taxes from 2000 and 2001. Section 6334
governs what assets are exempt from levies for tax collection purposes. Pursuant
to § 6334(e)(1), “a principal residence shall not be exempt from levy if a judge or
magistrate of a district court of the United States approves (in writing) the levy of
such residence.” The government attached the declaration of Internal Revenue
Service (“IRS”) officer Daniel Haber. Haber declared that (1) he had reviewed
applicable IRS records and determined that Gentile owed $144,551.76; (2) the IRS
gave Gentile notice, and demanded payment, of the liability, but Gentile failed to
pay; (3) the IRS had attempted to satisfy the liability from assets besides Gentile’s
private residence, but had found that no reasonable alternative existed; and (4) the
IRS generally had followed the requirements of applicable law and relevant
2
administrative procedures. Gentile filed a motion to dismiss the government’s
petition for failure to state a claim, pursuant to Fed.R.Civ.P. 12(b)(6), on the
ground that the government had not established the essential elements of unpaid
federal income tax liabilities because the taxes demanded were an unconstitutional
direct tax on his earnings. The district court held a hearing and received exhibits.
Gentile objected to the exhibits on the ground that they did not demonstrate that
the taxes demanded were constitutional. On February 15, 2008, the district court
entered an order granting the government’s petition for approval.
Three months later, on May 16, 2008, Gentile filed the instant motion to
vacate, pursuant to Rule 60(b)(4), on the ground that the order was void because
the district court had acted inconsistently with due process of law. Gentile asserted
that the demanded taxes were unconstitutional. The government responded that
this Court had long ago dismissed arguments such as Gentile’s that were based on
the unconstitutionality of the federal income tax. On June 16, 2008, the district
court denied Gentile’s Rule 60(b) motion to vacate. On July 31, 2008, Gentile
filed a notice of appeal (“NOA”) from this denial.
II.
As an initial matter, the scope of our review is limited to the district court’s
denial of Gentile’s Rule 60(b) motion to vacate. Gentile filed his NOA more than
3
60 days after the district court’s entry of the February 15, 2008 order granting the
government’s petition for approval. See Fed.R.Civ.P. 4(a)(1)(B) (“When the
United States or its officer or agency is a party, [an NOA] may be filed by any
party within 60 days after the judgment or order appealed from is entered.”)
Gentile’s Rule 60(b) motion to vacate, moreover, did not toll the time for filing the
NOA because the Rule 60(b) motion was filed more than 10 days after the district
court granted the government’s petition for approval on February 15, 2008. See
Fed.R.Civ.P. 4(a)(4)(A)(vi) (instructing that a Rule 60 motion that is filed no later
than ten days after the judgment is entered tolls the running of the 60-day time for
filing an NOA). Therefore, the instant appeal is untimely as to the underlying
order granting the petition for approval. See Fed.R.Civ.P. 4(a)(1)(B). Moreover,
review of the denial of Gentile’s Rule 60(b) motion to vacate does not give us
authority to review the grant of the government’s petition for approval. See Am.
Bankers Ins. Co. of Florida v. Northwestern Nat’l Ins. Co., 198 F.3d 1332, 1338
(11th Cir. 1999) (holding that appeal from a denial of a Rule 60(b) motion to
vacate is “narrow in scope” and must address only the propriety of denying the
Rule 60(b) motion to vacate and not the underlying judgment).
III.
We review de novo a district court’s denial of a Rule 60(b)(4) motion to
4
vacate on the ground of voidness. Burke v. Smith, 252 F.3d 1260, 1263 (11th Cir.
2001). Pursuant to Rule 60(b), the district court “may relieve a party or its legal
representative from a final judgment, order, or proceeding” if, inter alia, “the
judgment is void.” Fed.R.Civ.P. 60(b)(4). “Generally, a judgment is void under
Rule 60(b)(4) if the court that rendered it lacked jurisdiction of the subject matter,
or of the parties, or if it acted in a manner inconsistent with due process of law.”
Burke, 252 F.3d at 1263 (internal quotation marks omitted). We have held that
“Rule 60(b) may not be used to challenge mistakes of law which could have been
raised on direct appeal.” Am. Bankers Ins. Co. of Florida, 198 F.3d at 1338. As to
subject matter jurisdiction, “a plaintiff who invokes the jurisdiction of a federal
court bears the burden of showing (1) an injury in fact, meaning an injury that is
concrete and particularized, and actual or imminent, (2) a causal connection
between the injury and the causal conduct, and (3) a likelihood that the injury will
be redressed by a favorable decision.” KH Outdoor, L.L.C. v. Clay County, Fla.,
482 F.3d 1299, 1303 (11th Cir. 2007). As to due process, the Due Process Clause
generally requires notice and an opportunity to be heard. Mullane v. Cent.
Hanover Bank & Trust Co., 339 U.S. 306, 313-14, 70 S.Ct. 652, 657, 94 L.Ed. 865
(1950).
IV.
5
The district court did not err in denying Gentile’s Rule 60(b) motion to
vacate on the ground of voidness. See Burke, 252 F.3d at 1263. Gentile argues
that the grant of the government’s petition for approval was void because (1) the
district court denied him due process by failing to consider his arguments on the
constitutionality of the demanded taxes, (2) the district court lacked subject matter
jurisdiction because the government had failed to establish an actual injury, and
(3) the demanded taxes were unconstitutional. First, the district court did not
violate Gentile’s due process rights. Haber in his declaration stated that the IRS
gave Gentile notice of the intended levy, and the record demonstrates that the
district court held a hearing on the matter. Gentile has not challenged this
evidence. Thus, Gentile received notice and an opportunity to be heard. See
Mullane, 339 U.S. at 313-14, 70 S.Ct. at 657. Gentile repeatedly argued, in his
Rule 12(b)(6) motion to dismiss and in objecting to the government’s exhibits, that
the taxes demanded were unconstitutional direct taxes on his earnings. Although
he argues as much, Gentle has not demonstrated that the district court did not take
into account these arguments.
Also, the available record demonstrates that the district court had subject
matter jurisdiction. Haber stated that he had reviewed applicable IRS records and
determined that Gentile owed $144,551.76. Thus, the government showed that it
6
suffered an actual injury, and the district court had subject matter jurisdiction. See
KH Outdoor, L.L.C., 482 F.3d at 1303. Although he argues that the government’s
showing was insufficient because it did not cite specific tax code provisions or
explain how the assessments constituted indirect taxes in assessing his tax
liabilities, Gentile has not presented evidence that the government’s notice of tax
liabilities did not include this information or how the absence of such information
establishes that the government did not suffer an injury in fact.
Finally, Gentile’s arguments regarding the constitutionality of the demanded
taxes were not properly brought in his Rule 60(b) motion to vacate, as they should
have been made on direct appeal. See Am. Bankers Ins. Co. of Florida, 198 F.3d at
1338. Thus, we need not consider these arguments. Accordingly, because Gentile
has not demonstrated that he did not receive due process or the district court did
not have subject matter jurisdiction, we affirm.
AFFIRMED.
7 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3063677/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-14959 ELEVENTH CIRCUIT
MARCH 31, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D.C. Docket No. 04-60602-CV-KAM
RICHARD LANE,
FAITH LANE,
Plaintiffs-Appellants,
versus
XYZ VENTURE PARTNERS, L.L.C.,
a Florida Limited Liability Company,
GEORGE OTHON, an individual,
REESE WAUGH, an individual,
Defendants-Appellees,
CAPITAL ACQUISITIONS AND
MANAGEMENT COMPANY, a business entity,
Defendant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 31, 2009)
Before CARNES, WILSON and COX, Circuit Judges.
PER CURIAM:
I. BACKGROUND
Plaintiffs Richard Lane and Faith Lane worked for Capital Acquisitions and
Management Company (CAMCO). They allege that they were fired because they
complained of racial discrimination. They brought suit against CAMCO, asserting
several discrimination claims, as well as a claim for overtime pay under the Fair
Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. After they filed their suit,
CAMCO went into receivership. The Lanes, fearing CAMCO would become
insolvent and that they would be unable to obtain complete relief from CAMCO
alone, sought leave to amend their Complaint to add XYZ Venture Partners, L.L.C.,
the corporate parent of CAMCO; and Eric Woldoff, George Othon, and Reese
Waugh, who are the owners of both XYZ and CAMCO, and who are the officers and
directors of CAMCO. (R.1-22 at 2-3; R.1-53 at 4.)
CAMCO opposed the Lanes’ motion, and noted in a footnote that the court’s
“personal jurisdiction over XYZ, Waugh, and Othon is questionable.” (R.1-25 at 5.)
The court gave leave to amend, and XYZ, Woldoff, Othon, and Waugh were added
as defendants. The newly-added defendants first moved the court to stay the
proceedings pending the determination of an involuntary bankruptcy petition that
2
would force CAMCO into bankruptcy, which was denied. (R.1-51.) The defendants
then filed a motion to dismiss, which was granted as to the only claim against Waugh
and Othon, the overtime pay claim, (R.1-53 at 2), because the court concluded it
could not exercise personal jurisdiction over Waugh and Othon under the Florida
long-arm statute.1 The Lanes appeal the dismissal of their overtime pay claim against
Waugh and Othon.
II. CONTENTIONS OF PARTIES
The Lanes argue that the district court erred first in even considering Waugh
and Othon’s motion to dismiss because they waived any defense of lack of personal
jurisdiction when they moved to stay the suit, and because the court had already
concluded it had personal jurisdiction over Waugh and Othon when it gave leave to
the Lanes to amend their Complaint and add Waugh and Othon as defendants.
Additionally, the Lanes argue that the district court improperly shifted the
burden of showing personal jurisdiction back to them, as Waugh and Othon did not
adequately rebut their allegations of personal jurisdiction.2
1
We do not discuss the disposition of the other claims, nor the remainder of the procedural
history of the case, as only the appeal of the order and judgment dismissing the claim against Waugh
and Odom for want of personal jurisdiction is before us. (R.3-235 at 1.)
2
We do not address this argument because our analysis of why personal jurisdiction is lacking
under Florida’s long-arm statute is applicable to the jurisdictional allegations Plaintiffs make in their
Amended Complaint. Thus, it is irrelevant whether Plaintiffs have produced evidence to support
their jurisdictional allegations, since the allegations themselves are insufficient to show jurisdiction
3
Finally, the Lanes argue that jurisdiction under the Florida long-arm statute is
appropriate under either Fla. Stat. § 48.193(1)(a), which permits the exercise of
jurisdiction over those who conduct business in Florida, or Fla. Stat. § 48.193(1)(b),
which permits the exercise of jurisdiction over those who commit torts in Florida.3
Waugh and Othon did not file a brief in this appeal.
III. ISSUES ON APPEAL
We decide in this appeal whether a motion to stay constitutes a waiver of
personal jurisdiction under Rule 12(h)(1). We also decide whether the law of the case
precludes the district court from dismissing the claims against Waugh and Othon for
want of personal jurisdiction.
Finally, we decide whether the corporate shield doctrine precludes the exercise
of jurisdiction under sections 48.193(1)(a) and (b) of the Florida long-arm statute.
under the long-arm statute.
3
The Lanes also argue that the district court erred in dismissing the claim against Waugh and
Othon instead of transferring the case to the Northern District of Illinois, where personal jurisdiction
over Waugh and Othon could be obtained. The Lanes did not argue that transfer was more
appropriate than dismissal before the district court, and so we do not consider that argument here.
See F.D.I.C. v. Verex Assur., Inc., 3 F.3d 391, 395 (11th Cir. 1993) (“appellate courts generally will
not consider an issue or theory that was not raised in the district court.”) (citations omitted).
4
IV. DISCUSSION
A.
First, Waugh and Odom did not waive their defense of lack of personal
jurisdiction by moving to stay the proceedings before moving to dismiss for lack of
personal jurisdiction. While it is true that the defense of lack of personal jurisdiction
can be waived by filing a motion which does not raise the defense, Fed. R. Civ. P.
12(h)(1), waiver is only accomplished if the defense is not asserted in the first motion
made under Rule 12 or responsive pleading. Fed. R. Civ. P. 12(h)(1)(B), 12(g)(2).
In this case, a motion to stay is neither a responsive pleading nor a motion made
under Rule 12, and thus does not operate as a waiver of the defense of lack of
personal jurisdiction under Rule12(h).
B.
Second, the Lanes argue that the district court determined that it had
jurisdiction over Waugh and Odom when it granted the leave to amend, and thus the
law of the case precludes a contrary ruling. The Lanes argue that Waugh and Odom
“previously litigated the personal jurisdiction issue when they raised it in response
to Lane’s Motion to Join XYZ, Waugh, Othon, and Woldoff . . ., because the district
court rejected the Defendants’ argument, and granted the Motion to Join.”
(Appellant’s Br. at 45.) This argument is meritless. First, Waugh and Odom did not
5
respond to the Lanes’ Motion to Join, only CAMCO did. Second, even CAMCO did
not raise the issue of Waugh and Odom’s jurisdiction; it merely noted in a footnote
that “personal jurisdiction over XYZ, Waugh, and Odom is questionable.” (R.1-25
at 5 n.2.)
C.
The Lanes argue that the court had personal jurisdiction over Waugh and Othon
under either the business activity provision or the tortious act provision of the long-
arm statute. See Fla. Stat. §§ 48.193(1)(a)-(b) (providing jurisdiction over those who
conduct business or commit torts in Florida). Specifically, the Lanes argue that the
district court erred in concluding that the corporate shield doctrine precluded it from
exercising personal jurisdiction under these provisions of the long-arm statute.
The district court held that the acts of CAMCO’s officers and owners that were
performed for the benefit of CAMCO cannot form the basis of personal jurisdiction
under Fla. Stat. §§ 48.193(1)(a)-(b). The court relied on Doe v. Thompson, 620 So.2d
1004 (Fla. 1993), which held that the corporate shield doctrine prohibited the exercise
of jurisdiction under the Florida long-arm statute over corporate employees whose
only conduct in Florida was in furtherance of a corporation’s interests. Doe, 620
So.2d at 1006. The court reasoned that because the Lanes’ claim for overtime wages
against Waugh and Othon is based on their actions taken as corporate officers and
6
owners in furtherance of the business of CAMCO, the corporate shield doctrine
applied.
The Lanes contend that the corporate shield doctrine does not apply for two
reasons. First, they cite our opinion in Delong for the proposition that:
it is reasonable and comports with notions of ‘fair play’ and ‘substantial
justice’ to extend a forum’s long-arm statute to a non-resident individual
who commits an act in the forum for which he can be held substantively
liable, even if his actions in and contacts with the forum were entirely
in his capacity as a corporate officer or director.
Delong Equip. Co. v. Washington Mills Abrasive Co., 840 F.2d 843, 851-52 (11th
Cir. 1988) (internal citation omitted). But a few sentences later we made clear that
our holding was limited to “situations where the nonresident individual physically
was present in the forum when he participated in the tort.” Id. at 852 (emphasis
added.) In this case, the Lanes have not alleged that Othon and Waugh were
physically present in Florida when they participated in a tort. Indeed, the Lanes’
claim for overtime wages does not even sound in tort. See Walling v. Jacksonville
Terminal Co., 148 F.2d 768, 771 (5th Cir. 1945) (Under FLSA, “‘[w]ages are due
according to principles of contract, not of tort.’” (quoting Bowman v. Pace, 119 F.2d
858, 861 (5th Cir. 1941)).4
4
The Lanes cite Delong Equip. Co. v. Washington Mills Abrasive Co., 840 F.2d 843 (11th
Cir. 1988) for the proposition that claims arising from violations of federal statutes can be torts. But,
Delong addressed antitrust, not FLSA, claims, which we have repeatedly held are a species of
7
Second, the Lanes argue that the corporate shield doctrine does not apply if the
officer who seeks to invoke it can be personally liable in the suit. This argument is
meritless, as the Florida Supreme Court has specifically held that the corporate shield
doctrine may preclude the long-arm statute from conferring jurisdiction over a
defendant even though he may be personally liable. Doe, 620 F.2d at 1006.
The corporate shield doctrine as articulated by the Florida Supreme Court in
Doe precludes a Florida Court from exercising personal jurisdiction over Waugh and
Othon under the Florida long-arm statute in this case. The district court therefore did
not err in concluding it could not exercise jurisdiction over Waugh and Othon, and
thus did not err in dismissing the overtime pay claim against them.
V. CONCLUSION
Waugh and Othon did not waive their defense of lack of personal jurisdiction,
and the law of the case did not preclude the court from dismissing the Lanes’ claim
against Waugh and Othon for lack of personal jurisdiction. Additionally, the
corporate shield doctrine precludes the exercise of personal jurisdiction over Waugh
and Othon under the Florida long-arm statute, and so the overtime pay claim against
them was properly dismissed.
business tort. Id. at 848. See also Todorov v. DCH Healthcare Authority, 921 F.2d 1438, 1459 (11th
Cir. 1991) (antitrust claim is a tort) (citations omitted).
8
AFFIRMED.
9 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/8540804/ | *842Opinión disidente emitida por la
Jueza Asociada Señora Pabón Charneco.
Emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved.
(1)
Ante la Opinión que antecede, no queda otra alternativa que disentir del resultado anunciado. A través de solo doce (12) páginas, una mayoría de este Tribunal se aferra a una aplicación equivocada de Domínguez Castro et al. v. E.L.A. I, 178 DPR 1 (2010), certiorari denegado, Dominguez Castro v. Puerto Rico, 131 S.Ct. 152 (2010). Con una escueta opinión per curiam —huérfana de autor específico— se le da una trastada final a miles de servidores públicos, utilizando una metodología adjudicativa que raya en la constitucionalización de un “sello de goma”. No puedo prestar mi voto a ese proceder, por lo que debo emitir estas breves expresiones.
I
De acuerdo con la doctrina de Domínguez Castro v. E.L.A. I, supra, los tribunales deben limitarse a analizar la razonabilidad de las medidas legislativas que tengan el efecto de menoscabar relaciones contractuales. Sin embargo, el producto final del ratio decidendi de la Opinión per curiam que hoy se emite nos invita a concluir que la Ley Núm. 3-2013 es razonable porque... porque el Gobierno lo dice. Soy de la opinión que ese no es el análisis constitucional que requiere Domínguez Castro v. E.L.A. I, *843supra, y U.S. Trust Co. of New York v. New Jersey, 431 US 1 (1977).
Al igual que discute el hermano Juez Asociado Señor Rivera García en su opinión disidente, considero que para que el Estado cumpla con el estándar de razonabilidad al momento de alterar las pensiones de los empleados públicos, este debe proveer algún beneficio al empleado que aminore el impacto de los cambios negativos en la relación contractual. Por eso, ante la eminencia de los intereses involucrados, entiendo que para llevar a cabo el análisis de razonabilidad los tribunales deben utilizar el estándar siguiente:
To be sustained as reasonable, alterations of employees’ pension rights must bear some material relation to the theory of a pension system and its successful operation, and changes in a pension plan which result in disadvantage to employees should be accompanied by comparable new advantages. (Enfasis suplido). Allen v. City of Long Beach, 287 P.2d 765, 767 (Cal. 1955).
Ese es el estándar que sabiamente han utilizado varios tribunales que han analizado legislaciones como la involucrada en los casos de autos. Véanse: Calabro v. City of Omaha, 531 N.W.2d 541 (1995); Singer v. City of Topeka, 607 P.2d 467 (Kan. 1980); Betts v. Board of Administration, 21 Cal.3d 859 (1978). Un proceder contrario convertiría la actuación del Estado en un mero ejercicio de poder deslegitimado. Lamento que este Tribunal avale tal utilización del poder.
Nótese que el estatuto que analizamos en Domínguez Castro v. E.L.A. I, supra, cumplía con ese estándar de razonabilidad. La Ley Núm. 7-2009 (3 LPRA sec. 8791 et seq.) compensaba el efecto negativo del menoscabo contractual por ser una medida temporera, que afectaba un número limitado de empleados públicos y que colocaba a disposición de los cesanteados una serie de ayudas *844económicas que amortizaban el efecto patrimonial a estos. Ese proceder cumplía adecuadamente con el estándar de razonabilidad que propongo. Ello a diferencia de la Ley Núm. 3, supra, que contiene menoscabo tras menoscabo, con efectos presentes y futuros, en el patrimonio de los trabajadores. Por esta razón, y por lo profundamente discutido en las opiniones disidentes de los compañeros Jueces Asociados Señores Kolthoff Caraballo, Rivera García y Estrella Martínez, la Ley Núm. 3, supra, debería ser declarada inconstitucional.
II
Por otro lado, si bien es cierto que el crédito de Puerto Rico está en riesgo y se ha alegado que declarar inconstitucional la Ley Núm. 3, supra, causaría finalmente su degradación, este no es el Foro para pasar juicio sobre ello. Sencillamente, esa es una consideración exógena al Derecho que no debe guiar la decisión de los casos de autos. Si el principio de independencia judicial significa algo es que ese tipo de amenaza no puede empañar la labor constitucional de los tribunales en Puerto Rico.
Lamentablemente, con la Opinión que hoy se emite, el crédito que sí ha quedado degradado es el de la credibilidad del Estado como patrono. Con solo doce (12) páginas este Tribunal dio la bendición final para que en apenas unos cuantos días miles de puertorriqueños vean sus vidas alteradas ante el cambio inminente e ineludible de su futuro económico. En unos días tendrán que aportar más a un sistema de retiro que nuevamente se les ha prometido, pero con el conocimiento de que, tras años de labor incansable al servicio de su Isla, la pensión original a la cual eran acreedores sencillamente se esfumó. En doce (12) páginas de análisis judicial pasajero, se selló ese nuevo futuro de los empleados públicos en Puerto Rico. El sacrificio *845de largos años de estos servidores públicos merecía mucho más que eso.
Finalmente, tres (3) miembros de este Tribunal que conforman la Mayoría en este caso han dado su anuencia a este lamentable proceder. Ello a pesar de haber disentido enérgicamente de lo resuelto en Domínguez Castro v. E.L.A. I, supra. Este es tan solo el segundo capítulo de una saga en la cual aparentemente presenciaremos una “virazón” en la metodología adjudicativa de estos tres (3) compañeros. Véase Alvarado Pacheco y otros v. ELA, 188 DPR 598 (2013). Parecería que ahora estamos ante un “nuevo” Tribunal Supremo. La inconsistencia de estos tres (3) compañeros en las últimas semanas “es evidente e irrefutable. Nada, que esta falta de constancia sólo se puede entender —tal vez— cuando, desde la orilla, observamos el flujo y reflujo de la marea”. Domínguez Castro v. E.L.A., supra, pág. 161, opinión disidente de la Juez Asociada Rodríguez Rodríguez.
III
Por todo lo anterior, declararía la Ley Núm. 3, supra, inconstitucional. Por ende, revocaría la sentencia emitida por el Tribunal de Primera Instancia.
Home Bldg. & Loan Ass’n v. Blaisdell, 290 US 398, 425 (1934). | 01-03-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/997513/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-6923
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DARVISH WORDELL BRYANT,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, District Judge. (CR-
95-450-PJM, CA-97-4063-PJM)
Submitted: December 17, 1998 Decided: January 5, 1999
Before WILKINS, NIEMEYER, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Darvish Wordell Bryant, Appellant Pro Se. Steven Michael Dettel-
bach, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Darvish Wordell Bryant 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 and find no reversible error. Accordingly, we deny
a certificate of appealability and dismiss the appeal on the rea-
soning of the district court. See United States v. Bryant, Nos.
CR-95-450-PJM; CA-97-4063-PJM (D. Md. Apr. 30, 1998). We further
find that Bryant’s challenge to the district court’s sentencing
calculation is not cognizable on collateral review because he
failed to raise it on direct appeal. See Stone v. Powell, 428 U.S.
465, 477 n.10 (1976). Bryant’s motion to proceed in forma pauperis
is granted. His motion for production of a transcript at govern-
ment expense is denied. We dispense with oral argument because the
facts and legal contentions are adequately presented in the mate-
rials before the court and argument would not aid the decisional
process.
DISMISSED
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2886356/ | NO. 07-02-0376-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
DECEMBER 6, 2002
______________________________
FLOYD WEATHERTON, APPELLANT
V.
LIBERTY MUTUAL INSURANCE COMPANY, APPELLEE
_________________________________
FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2000-511,528; HONORABLE BLAIR CHERRY, JR., JUDGE
_______________________________
Before REAVIS and JOHNSON, JJ. and BOYD, S.J.*
In this proceeding, appellant Floyd Weatherton attempted to appeal a summary
judgment in favor of appellee Liberty Mutual Insurance Company. The judgment of the trial
court was executed on May 29, 2002. On June 27, 2002, appellant filed a motion seeking
new trial. On August 28, 2002, appellant filed his notice of appeal.
*
John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
Texas Rule of Appellate Procedure 26.1(a) provides that if a motion seeking new
trial is filed, the notice of appeal must be filed within 90 days from the date the judgment
is signed. Without a timely filed notice of appeal, we have no jurisdiction to consider an
appeal.
Because appellant’s notice of appeal was not filed within the 90 day period from the
date of the judgment in this case, we have no jurisdiction to consider the appeal.
Because his notice of appeal was not timely filed, this court notified appellant by
letter that his appeal would be dismissed for want of jurisdiction if he, or any person
desiring to continue the appeal, did not file a response within ten days from the date of the
notice, showing grounds for continuing the appeal. See Tex. R. App. P. 42.3(a)
Accordingly, having received no response showing grounds for continuing this
appeal, the appeal must be, and is hereby, dismissed for want of jurisdiction.
John T. Boyd
Senior Justice
Do not publish. | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3453508/ | Affirming.
The opinion on the first appeal may be found under the same style in 294 Ky. 189, 171 S.W.2d 4. Pursuant to that opinion, the judgment was set aside and a new trial granted, resulting in a verdict and judgment in favor of appellee in the sum of Seven Thousand Dollars ($7,000), Two Thousand Dollars ($2,000) more than the award made on the first trial. Reversal is sought because it is contended, (1) the Trial Court erred in overruling appellant's motion for a directed verdict; (2) the verdict is against the weight of the evidence; (3) the Court erred in admitting incompetent evidence, and in refusing to admit competent evidence; (4) the Court erred in giving and refusing instructions; (5) the Court erred in refusing to permit appellant to file additional motion, and grounds for a new trial, after the original motion for a new trial had been overruled, and more than three days had transpired since the verdict was rendered; and (5a) if appellant's position in respect to the 5th complaint should be upheld, the judgment should be reversed because of the additional ground filed viz., that the verdict was agreed upon by lot.
The first two contentions may be disposed of as one. It is admitted in appellant's brief that "there is very little difference between the testimony offered by the appellee at this trial and that offered at the former trial except that William Hounshell is contradicted more *Page 80
by deposition taken at this trial than by the former trial." William Hounshell was an eyewitness to the accident although he was some distance removed from the scene. He was inducted into the United States Army after the first trial, and his deposition was taken to be used upon the second trial if his presence could not be obtained. It is insisted that the testimony he gave in his deposition is so contradictory of the testimony he gave on the first trial as to render his evidence without probative value and insusceptible of belief; and, disregarding his evidence, plaintiff has failed to introduce any evidence on the second trial sufficient to support the verdict that the driver of appellant's bus was negligent in its operation at the time of the accident. In this connection, our attention is called to the fact that the passenger who testified on the first trial that appellee's decedent was running toward the place where she was struck when the bus was one hundred fifty (150) feet from the point of impact was not introduced on the second trial; nor was the evidence he gave at the first trial read to the jury. While there are some discrepancies in Hounshell's deposition and his testimony at the first trial, they are not of such magnitude as to render his testimony of no probative value. These discrepancies were brought to the attention of the jury, and addressed themselves to the question of the credibility of the witness. But, disregarding Hounshell's testimony entirely, the witness, Dixie Sowards, whose absence occasioned the circumstances upon which the reversal of the judgment on the first trial was obtained, appeared as a witness on the second trial, and testified to facts from which the jury reasonably might have inferred that the driver of the bus was not keeping a lookout ahead. She testified that the automobile which was the sole object it is claimed obstructed the view of the driver was parked near a filling station fifty (50) feet south (in the direction of the bus) of the scene of the accident, and that the deceased was "almost running" from the time she left the store until she was struck by the bus, a distance of forty (40) feet. That testimony, if true, coupled with the testimony of the driver of the bus that he did not see the deceased until he was within twenty-five (25) feet of her, if true, would conclusively establish the fact that he was not keeping a lookout ahead as he approached the scene of the accident. In addition to that, other witnesses *Page 81
testified that the bus was between one hundred forty (140) and one hundred fifty (150) feet from the scene of the accident when appellee's decedent came into view of the driver of the bus, had he been looking ahead. This testimony was sufficient for the jury to infer that the driver had failed in his duty in that respect, and substantially supplied the evidence given by the passenger on the first trial, when the latter testified that he actually saw the child proceeding into the path of the bus when the bus was one hundred fifty (150) feet from the point of the impact. Thus, it will be seen that there is no material difference in the testimony adduced upon the first trial and that introduced upon the second. It follows that the Trial Court did not err in overruling appellant's motion for a peremptory instruction, and that the verdict was not against the weight of the evidence.
The Court permitted appellee to read the evidence given by William Hounshell on the first trial of the case, pursuant to a stipulated order signed by the parties, approved by the Trial Judge, and entered in the record. That stipulation reads:
"It is agreed by the parties that either side may read the evidence of any witness on this trial who testified on the former trial of this case at the regular November Term 1941 of this court.
"Francis M. Burke, atty. for Plff.
"R.W. Keenon, atty. for Deft."
The attorney for appellant objected to the reading of Hounshell's testimony because his deposition was taken after the first trial for the purpose of using it upon the second trial. We see no merit to this complaint. Counsel for defendant knew the deposition had been taken when he signed the stipulation. Had he wished to make an exception of the testimony of William Hounshell, he should have specifically excluded it in the stipulation. As a matter of fact, the deposition, if properly objected to, could not have been used as substantive testimony by appellee, because it had not been filed in the record previous to the trial. Section 585, Civil Code of Practice. It is obvious, therefore, the Court did not err in permitting Hounshell's testimony given on the first trial to be introduced in evidence on the second trial. Appellant was permitted to read the cross-examination contained in Hounshell's deposition, after the reading of which, appellant's counsel *Page 82
objected to appellee reading the direct examination given in the deposition; and now complains that the Court erred in permitting the direct examination to be read. Appellant had the right to introduce the deposition for the purpose of contradicting the testimony of Hounshell given on the first trial, but for that purpose only; but, when he introduced the cross-examination for that purpose, appellee, in turn, had the right to read the whole deposition to explain, if it did, any discrepancy which might have appeared between the cross-examination contained in the deposition and the evidence given by the witness on the first trial of the case. Therefore, this complaint is without merit. Appellant then moved the Court to be permitted to introduce in evidence a statement purported to have been made and signed by the witness, Hounshell, previous to the first trial of the case. On the first appeal, we held that the rejection of this statement in evidence was not error, because the witness admitted making the statement, but explained the discrepancies in it and his testimony. See former opinion, 171 S.W.2d page 8. We said: "If the witness had denied making the former statements, no doubt the court would have permitted defendant to have introduced the writing for impeachment purposes." In Hounshell's deposition, he denied making certain statements contained in the writing, and it is now insisted that the Court erred in not permitting the writing to be introduced because of this fact, in view of the above quoted portion of the opinion on the first appeal. But here again, we are of the opinion the Court did not err. In rejecting the statement, the Court plainly stated that the ground for rejecting it was that its authenticity had not been proved by any witness, although the person who is purported to have written the statement was present at all times during the trial. Counsel for appellee virtually dared appellant to introduce the person who it is claimed wrote the statement attributed to Hounshell, and whose testimony that the statement was authentic would have rendered it competent to be introduced in evidence. Appellant refused to place the witness on the stand; therefore, it cannot complain of the Court's ruling that the statement was not admissible in evidence.
In the opinion on the first appeal, we approved the instructions given by the Court. On the second trial, an additional instruction was offered. While the instruction *Page 83
offered differs in wording from the instruction on sudden emergency offered on the first trial, it substantially incorporates the same theory, and which we held was not applicable to a case of this character; and, since we so held in the first opinion, it is binding on this appeal unless, as is contended, we should abolish the rule long in effect that the opinion on a first appeal is the law of the case and, right or wrong, is binding on the second appeal. The argument is made that several courts have departed from the rule upon the more nearly sound principle that a decision, if palpably erroneous, ever should be corrected, even though such procedure might prolong litigation unreasonably. We find it unnecessary to discuss this point, because we are of the opinion that the decision on the first trial, in respect to appellant's right to an instruction on sudden peril or emergency, is sound, for the reasons given in the opinion.
Finally, it is urged that the judgment should be reversed, because the verdict admittedly was arrived at by lot. We have often condemned verdicts of this character, and would not hesitate to do so in this instance if that question were actually before us; but we have concluded that it is not. On the day the verdict was entered, counsel for appellant prepared and filed motion and grounds for a new trial. This complaint was not incorporated as one of the grounds for which a new trial was sought. The Court immediately overruled the motion, and entered an order accordingly. J.A. Runyon, one of the attorneys for appellant, on the following day learned that the verdict was arrived at by lot, in the following manner: The jurors agreed that each would write the amount he thought the plaintiff should recover, all the amounts were then to be added together, divided by twelve, and the result be rendered as the unanimous verdict of the jury. It appears that none of the jurors reserved the right to refuse to agree upon the verdict thus determined by lot. With this information coming to him the day after the verdict was rendered, he had that day and the following in which to amend his motion and grounds for a new trial; but he did not do so. Instead, he communicated this information to the chief counsel for appellant, who on the seventh day after the trial amended the grounds, whereby he set up this complaint. Section 342, Civil Code of Practice reads: *Page 84
"The application for a new trial must be made at the term in which the verdict or decision is rendered; and, except for the cause mentioned in section 340, subsection 7, shall be within three days after the verdict or decision is rendered, unless unavoidably prevented."
We have held that a motion and grounds for a new trial may be amended by setting up additional grounds at the same term of court at which the trial was had, although the time for filing the motion originally had transpired. Houston v. Kidwell,83 Ky. 301, 7 Ky. Law Rep. 266; Wooldridge v. White, 105 Ky. 247,48 S.W. 1081, 20 Ky. Law Rep. 1144; and Million v. Million's Ex'rs, 104 S.W. 768, 31 Ky. Law Rep. 1156. But in none of those cases had the Court passed on the motion. In Kentucky Central Railway Co. v. Smith, 93 Ky. 449, 20 S.W. 392, 14 Ky. Law Rep. 455, 18 L.R.A. 63, we held that where the Court had passed on the motion and the amendment was not tendered within the three days provided by Section 342 of the Civil Code of Practice, the Court was without power to permit the amendment to be filed or to reconsider his ruling on the motion, where the movant was not unavoidably prevented from doing so in the time allowed. There is no conflict in these decisions. This seems to be conceded, but it is argued that since Mr. Keenon, the chief counsel for appellant, did not learn of the manner in which the verdict was arrived at until after the time for filing the motion and grounds had expired the case falls within the exception contained in Section 342, supra, in that appellant was unavoidably prevented from filing the ground within the time provided. In this connection, it is contended that Mr. Runyon was employed for the sole purpose of assisting in the selection of the jury and, since his employment was so limited, notice to him of the irregularity was not notice to appellant. Mr. Keenon filed his affidavit, wherein he stated Mr. Runyon's employment was limited to assisting him in the selection of the jury. The record shows Mr. Runyon's name was signed to practically all, if not all, of the pleadings, and that he examined one of the four witnesses who personally testified for appellant. Over objection of appellant, he was required to testify as to the scope of his employment. He stated that he had conferred approximately twenty-five times with Mr. Keenon concerning the defense of the action, and that he was never informed *Page 85
that his employment was limited as asserted by Mr. Keenon. The Court properly concluded, under these circumstances, that the employment was not limited and that the knowledge of Mr. Runyon was imputable to appellant. Complaint is made that the Court erred in requiring Mr. Runyon to testify as to the scope of his employment without the consent of his client, because the information he was required to disclose was privileged as a confidential communication between attorney and client. Section 606, subsection 4 of the Civil Code of Practice, in so far as pertinent, reads:
"No attorney shall testify concerning a communication made to him, in his professional character, by his client, or his advice thereon, without the client's consent; * * *."
In entering into a contract of employment with a client, an attorney represents himself exclusively and is not acting for his client. Therefore, the terms and scope of his employment are not communications made to the attorney in his professional character by the client. Each deals with the other at arm's length until after the contract of employment has been agreed upon. Therfore, it was not error for the Court to require Mr. Runyon to testify as to the terms of his employment by his client. We are, therefore, of the opinion that the Court properly refused to consider the ground that the verdict was arrived at by lot, in support of the motion for a new trial.
The judgment is affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3453514/ | Affirming.
This is the third appeal in this case from the Whitley Circuit Court. As the issues and facts appear in the opinions on the two former appeals reported in Whitley Lodge No. 148 of Knights of Pythias v. West, 288 Ky. 698, 157 S.W.2d 320, and Id., 293 Ky. 341, 168 S.W.2d 1009, we will not encumber this opinion with them except insofar as they apply to the questions raised on this appeal.
After the second reversal in 293 Ky. 341,168 S.W.2d 1009, the only issue left for trial was whether or not Hacker waived his right to rely upon the covenant of general warranty contained in the deed. The court instructed the jury on the measure of damages and told them to find for plaintiffs unless they believe from the evidence that the grantee Hacker knew of the easement at the time he accepted the deed from Watson and *Page 672
agreed to accept the lot with the easement thereon, in which event plaintiffs waived their right to rely upon the general warranty contained in the deed and the verdict should be for defendant.
Under this instruction the jury found for defendant and plaintiffs seek to reverse the judgment entered on the verdict because: 1. The court erred in his oral instruction to the jury after the case was submitted and the jury came into open court and asked the judge for "a little more light on the easement proposition," in that the judge singled out and stressed certain evidence favorable to defendant; 2. the court permitted Hacker to be contradicted without the proper foundation being laid as required by section 598 of the Civil Code of Practice; 3. the court gave undue prominence in the instructions to the defense of "waiver" by incorporating it in both the first and second instructions and then defining the term.
All the substantive evidence on the subject of waiver was given by Hacker and Gillispie, the escrow agent, as Watson was dead. Hacker testified for plaintiffs and Gillispie for defendant. Each testified fairly and frankly and there is but little, if any, difference between them as to what transpired between Hacker and Watson when it was discovered an easement existed across the back end of the lot, as is seen from these excerpts taken from their testimony. Hacker was asked:
"Q. What did Mr. Watson say to you then and there about the title to the property and about you taking it? A. Mr. Watson said that that dispute came up and that he did not know anything about the alley, he says, 'You can take it as it is or call the deal off.'
* * * * * *
"Q. With reference to the time he said that to you, when did you get the deed? A. I got it right then — that day."
Gillispie was asked:
"Q. On that day, about August 3rd, when Hacker and Watson were in the bank and had the talk in your presence concerning that passageway, what was said, if anything, by Mr. Watson about the delivery of the deed to Hacker and whether Hacker would take the property? A. The day they were discussing it, I don't know whether that was on August 3rd or before *Page 673
that, but I believe it was the day before, must have been August 2nd; anyway Mr. Watson told Mr. Hacker in my presence to take it like it was or call the trade off.
* * * * * *
"Q. What did you do with the deed after that? A. Put it back in my desk drawer.
"Q. What did you do with it later, anything? A. Yes sir. I think the next day Mr. Hacker came in and said he had decided to take the deed and that I could deliver the checks.
"Q. Did you give him the deed? A. I did.
"Q. Did you deliver the checks to whomever they were going? A. Yes, I did."
From the above quotations there can be no doubt that Hacker waived his right to rely upon the warranty contained in the deed and the court would not have erred had he sustained defendant's motion for a directed verdict. Such being the case, it is not necessary to consider the errors relied upon by plaintiffs for reversal, as in no event could plaintiffs have been prejudiced if such errors were committed, since defendant was entitled to a peremptory instruction. Godfrey v. Beattyville Coal Co., 101 Ry. 339, 41 S.W. 10, 19 Ky. Law Rep. 501; Henry v. J. G. McCrory Co., 279 Ky. 248,130 S.W.2d 846; Cookendorfor v. Pendleton, etc. Ins. Co., 287 Ky. 735,155 S.W.2d 204.
The judgment is affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3453516/ | Reversing.
The question presented is whether or not the vendor, who retained possession after the execution, delivery, and acceptance of a deed, must suffer loss by reason of fire which occurred between the time of the execution of the deed and the delivery of possession.
On October 15, 1945, appellants, Bernie Cole, and Violet Cole, his wife, executed and delivered to appellee, Tessie Back, a deed for some 65 acres of land with certain buildings thereon including a residence. Nothing is said in the deed concerning the passing of possession but the testimony discloses that an oral agreement was made between the parties whereby appellants retained possession of the premises until March 1, 1946.
Appellee and her father testified that they agreed for appellants to retain possession until the date above, but stated that appellants agreed to deliver the property in as good condition as it was on the day the deed was executed. Appellants denied this agreement but stated they were to retain possession because of the fact they had purchased another place in Montgomery County and could not obtain possession until that date, and were to retain possession of the property until then.
It is further established that appellants and appellee had lived in Ohio for three years or more, and appellants had not been back to this property which had been sold for something over one year but had left their furniture *Page 670
in the building. No one lived in the house as a tenant. However, Mace Burton, father of appellant, Violet Cole, had some of his clothing, bed clothes, and other personal belongings at the residence, and had for over three years been accustomed to stop at the residence from time to time and spend the night or change his clothes. On the morning of February 12, 1946, about 9 o'clock in the morning, Mace Burton and Benjamin Pugh, who lived in the neighborhood, entered the residence in controversy. After building a fire in the grate in the front room, the chimney to which also served a grate in an adjoining room, they sat by the fire and talked for approximately an hour. It appears that Benjamin Pugh was awaiting the return of his children from a nearby store, and upon their return Pugh left with the children. Immediately after this, Mace Burton heard a roaring sound, and when he opened the door to the adjoining room he found it to be on fire. He called Benjamin Pugh back to help fight the fire but the residence and its contents were completely destroyed.
Appellee filed suit in lower court seeking to recover from the appellants the value of the building burned, alleging that it was burned through the negligence of appellants, their representative and agent. Upon trial appellee recovered the sum of $1000. From this verdict and judgment appellants appeal.
Both at the conclusion of evidence for plaintiff below, and of all the evidence, motions were entered for a peremptory instruction on the ground that the proof did not show any negligence on the part of appellants, and second, it did not show any negligence on the part of Mace Burton, or even if there was negligence on the part of Mace Burton, there was no agency relationship between Mace Burton and appellants.
Appellants urge as a principal ground for reversal the alleged error of the lower court in overruling appellants' motion for a directed verdict at the close of appellee's testimony. They base this contention upon, first, the appellee failed entirely to produce sufficient evidence to substantiate either the allegation of negligence on the part of appellants, or Mace Burton, and second, they utterly failed to establish any agency relationship between appellants and Mace Burton. Certainly *Page 671
there are no personal acts of negligence on the part of appellants individually as they had been absent and away from the house for more than a year.
Appellee alleged that it was the negligence of appellants' representative or agent, and if there was any negligence established it was the negligence of Mace Burton.
Appellants take the position that there was no negligence even on the part of Mace Burton, but if there was sufficient proof of negligence to submit the matter to the jury, even then appellee must fail since there was no proven agency relationship between appellants and Mace Burton.
Mace Burton was not made a party to this action. The circumstances surrounding the starting of the fire in the grate might possibly be sufficient to show that there was negligence. The testimony shows that Mace Burton had some personal belongings such as clothes, bed clothes, and some furniture in this house, and during the time appellants had been in Ohio, which was approximately three years, Mace Burton, the father of appellant, Violet Cole, and father-in-law of Bernie Cole, had from time to time used the house for his own personal purposes; that he had access to the house at any time he desired; that on the particular occasion he was going to the house for the purpose of changing clothes to go and visit a son; and that a Mr. Pugh accompanied him on this particular day, who described the manner in which the fire was started in the grate.
Pugh testified that Burton put some kindling in the grate and then applied some kerosene from a number two lamp. He then put some coal on and applied more kerosene. He stated the lamp was about two-thirds full of kerosene. Burton testified he used about two tablespoonfuls of kerosene.
The two men then sat before the fire for about an hour talking. Whether or not this was negligence is problematical, but under the circumstances possibly it was sufficient to take the cause to the jury.
In the instant case the title of the property was entirely in the vendee. This is not a case of where a vendor has retained possession for some specific reason *Page 672
until a conveyance is made or a deed executed, or is operating merely under an executory contract wherein he had agreed to execute deed upon fulfillment of certain conditions, creating equitable title in the vendee, with legal title yet in the vendor. The title was entirely in the vendee. If the contract had merely been executory, the general rule, subject to certain conditions and limitations, that the vendor must bear the burden of any loss by the destruction of, or injury to, the property would apply. The appellants retained possession merely as a place of storage for their furniture until they could get possession of a place they had bought. True, it was their duty to resort to such means as might reasonably be expected to be used by a person of ordinary prudence to protect the property, but beyond that they were not required to go. Mace Burton was not a tenant in possession. To say the most, he was nothing more than a licensee with permission to use the house for his own personal use. Appellee knew this as she stated she had visited the house two or three times and had seen Mr. Burton there. Should we take the view that Burton was the tenant it would not then follow that he was the representative or servant of appellants. It is generally said:
"The relation of landlord and tenant, in the absence of stipulations to the contrary, imposes upon the tenant certain duties in connection with the use of the property but, in itself, involves no idea of representation or agency such as will render the landlord responsible to third persons for the torts of the tenants with respect to the use of the demised property." 32 Am. Jur., Landlord and Tenant, Section 761.
In order to establish legal responsibility there must be some sort of legal relationship. And, as stated above, the relationship of landlord and tenant, in itself, involves no idea of representation or of agency. If Burton was representative or servant, as alleged herein, it follows then that appellants must have been the master or principal. To impose liability on them, then Mace Burton must necessarily have acted within the scope of his employment since the very nature and object of this relationship implies this. Appellee failed to establish by any probative evidence any such relationship. *Page 673
Under the evidence herein, we cannot conclude other than that Mace Burton was at the house on this particular morning of the fire on his own personal business. He was not there in the employment of the appellants, or as their representative, or as their agent, but merely acting for himself, in his own interest, and on his own behalf, and by no stretch of the imagination can it be said that there is proof here showing that he was representing or acting for the appellants.
Consequently, we conclude that the court erred in not peremptorily instructing for the appellants as they here contend.
The judgment is reversed for proceedings not inconsistent herewith. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/837279/ | 763 N.W.2d 280 (2009)
PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Paul David GIBBS, Defendant-Appellant.
Docket No. 137609. COA No. 274003.
Supreme Court of Michigan.
April 3, 2009.
Order
On order of the Court, the application for leave to appeal the September 9, 2008 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
MARILYN J. KELLY, C.J. (dissenting).
I would grant leave to appeal. This may be a case where the erroneous admission of evidence and the misuse of evidence were so offensive to sound judicial process that they cannot be regarded as harmless.
Admittedly, the appearance of defendant's guilt was strong, and the jury found *281 him guilty of first-degree premeditated murder.[1] However, in the course of the trial, the court improperly admitted at least five hearsay statements damaging to defendant. Included was the statement that, before her death, the victim believed that defendant had attempted to kill her.[2]
The trial court also improperly allowed the prosecution to introduce, over defendant's objection, a video recording in which a witness recounted that defendant had told her that the victim was dead. The witness claimed that defendant had predicted that he would get "pinned" for her death.[3] The trial court then allowed the witness to testify directly about the conversation, erroneously ruling that the conversation constituted a prior inconsistent statement.[4]
Not only did the judge allow this considerable, inadmissible evidence, the prosecutor intentionally used it extensively. The Court of Appeals concluded that there was prosecutorial misconduct. It stated:
[D]espite ... clear evidence establishing that the prosecution knew of the limited use of [Louella] Bibbins's prior inconsistent statements, the prosecution repeatedly argued the inconsistent statements as substantive evidence of defendant's guilt. In its closing statement, the prosecution made the following comments:
... And, Paul Gibbs told Louella Bibbins, Tammie is dead, and they're going to pin it on me; six hours, five hours before her body was found....
* * *
... No one else knew she was dead before her body was found....
* * *
At about 1:00 o'clock eastern time the cellphone he's using hits a cell tower in South Bend, Indiana [with the call to Louella Bibbins]; 6:35, 6:40 p.m. that same day, Mr. Moseng and Ms. Stornello call the police [to report finding a body]. He knew she was dead before she was found. It's that important. It's important enough that he calls Louella Bibbins to lie about it. That's how important it is.
* * *
Another quick example, the East Lansing interview with Louella and Donald Gibbs, when she was explaining the details of that call to Officer [Scott] Despins, he made a note it's on the tape. This was just prior to 5:55 p.m., a full 40 to 45 minutes before Mr. Moseng and Ms. Stornello had even called the police yet. So, at the time she was talking, she didn't know how important it was, so she told the truth.
In its rebuttal closing argument, the prosecution again stated that defendant "knew she was dead before she was found."[[5]]
The prosecutor made these statements, knowing that the evidence had been improperly admitted.[6] The Court of Appeals *282 determined the errors "extremely significant," but affirmed the conviction because it concluded, more probably than not, that the errors were not outcome determinative.[7]
When the error and misconduct are so many and great as here, it is difficult for an appellate court to presume what a jury would have done had the errors not occurred. It also raises serious questions about the point at which it can no longer be said that a defendant was afforded a fair trial. This presents problems for appellate courts that seek not to second-guess jury verdicts. The Court in People v. Robinson attempted to provide guidance when it stated: "Where it is claimed that error is harmless, two inquires are pertinent. First, is the error so offensive to the maintenance of a sound judicial process that it never can be regarded as harmless? Second, if not so basic, can we declare a belief that the error was harmless beyond a reasonable doubt?"[8] The purpose of the first inquiry "is to deter prosecutorial misconduct and to safeguard those individual rights which are so fundamental that the impact of their violation cannot be fully assessed."[9]
In Robinson, this Court found that the prosecutor's deliberate injection of "improper evidence and the trial court's acquiescence in it are such affront to the integrity of the trial process that we will not countenance it."[10] In so ruling, this Court quoted People v. Bigge:
That statutory provision is not a cure-all for it must serve within constitutional limitations or else be declared void. Minor errors which clearly can be held not to have affected the result may be mollified by this statutory provision, but errors which deprive an accused of the right of due process of law cannot be composed thereby to the detriment of an accused. The responsibility of maintaining the right of fair trial and due process of law is placed with the judicial branch and cannot be otherwise by legislative permission. We are not concerned with the guilt or innocence of the accused, for we are not triers of the facts and must apply the law to the case as tried. The statement was inexcusable, wholly without warrant of law, planted irremovable impression and rendered defendant a victim of the error. The prosecutor, by such statement of intended proof of defendant's guilt, brought an effect so probable, so inadmissible, and so prejudicial as to constitute irreparable error.[[11]]
The tainted evidence improperly admitted in this case was very powerful. Moreover, the use of nonsubstantive evidence as substantive evidence ensured defendant's conviction. It appears that the prosecutor introduced the inadmissible hearsay to show that defendant was a brutish, controlling *283 man who, by virtue of his bad character, was likely the murderer. There was no reason to introduce the prior statements about the telephone conversation except to use them substantively to show defendant's guilt. The prosecutor repeatedly used these statements as substantive evidence knowing it was improper to do so.
Where the evidence of guilt is strong, this Court should not allow a prosecutor to succeed in abusing the justice system by hiding behind a shield emblazoned with the words "Harmless Error." I would grant leave to consider whether, in this case, this Court, should condone as harmless error the prosecutor's deliberate injection of inadmissible evidence and misuse of nonsubstantive prejudicial evidence.
NOTES
[1] MCL 750.316(1)(a).
[2] People v. Gibbs, unpublished opinion per curiam of the Court of Appeals, issued September 9, 2008 (Docket No. 274003), 2008 WL 4149033 at 2.
[3] Gibbs, supra at 3.
[4] Id.
[5] Id. at 4-5.
[6] After the court improperly overruled defendant's objection to the telephone call, it stated the jury likely needed a cautionary instruction that a prior inconsistent statement is not substantive evidence. The prosecutor responded that the court was "`absolutely correct.'" Id. at 4. Then, when the court made it clear that the videotape was for impeachment purposes only, the prosecutor replied, "`That's true your honor.'" Id.
[7] Id. at 7. Under the harmless error analysis, a trial court's nonconstitutional error in admitting evidence is not grounds for reversal. An exception exists if, after an examination of the entire cause, it affirmatively appears more probable that not that the error was outcome determinative. People v. Lukity, 460 Mich. 484, 495-496, 596 N.W.2d 607 (1999). An error is outcome determinative if it undermines the reliability of the verdict. People v. Whittaker, 465 Mich. 422, 427, 635 N.W.2d 687 (2001).
[8] People v. Robinson, 386 Mich. 551, 563, 194 N.W.2d 709 (1972) (citations omitted).
[9] People v. Christensen, 64 Mich.App. 23, 33, 235 N.W.2d 50 (1975).
[10] Robinson, 386 Mich. at 563, 194 N.W.2d 709.
[11] Id., quoting People v. Bigge, 288 Mich. 417, 421, 285 N.W. 5 (1939) (emphasis added in Robinson). | 01-03-2023 | 03-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/128210/ | 538 U.S. 925
MARSH & McLENNAN COS., INC., AND SUBSIDIARIESv.UNITED STATES.
No. 02-1200.
Supreme Court of United States.
March 24, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT.
2
C. A. Fed. Cir. Certiorari denied. Reported below: 302 F. 3d 1369. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/128223/ | 538 U.S. 926
LAWRENCEv.FLORIDA.
No. 02-8428.
Supreme Court of United States.
March 24, 2003.
1
CERTIORARI TO THE SUPREME COURT OF FLORIDA.
2
Sup.Ct. Fla. Certiorari denied. Reported below: 831 So.2d 121. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3227670/ | The appellee, a foreign corporation, paid certain privilege taxes under the act of March 7, 1907 (Gen. Acts 1907, p. 418), which was subsequently declared to be unconstitutional by the Supreme Court of the United States in the case of Southern Railway v. Greene, 216 U.S. 400, 30 Sup. Ct. 287, 54 L. Ed. 536, 17 Ann. Cas. 1247.
The questions argued by counsel for appellant on this appeal have been heretofore determined by this court in the following recent cases: Smith, as Auditor, v. Tenn. Coal, Iron R. R. Co., 192 Ala. 129, 68 So. 865; Bigbee Fertilizer Co. v. Smith, 186 Ala. 552, 65 So. 37; Lovelady v. Loveman, Joseph Loeb, 191 Ala. 96, 68 So. 48; Allgood, as Auditor, v. Sloss-Sheffield Steel Iron Co., 71 So. 724.1 A discussion therefore of the questions here presented in brief would but result in a repetition of what has been said in the above-cited authorities. The correctness of these cases has been attacked by counsel. The argument advanced in brief has been given due consideration by us, but we have not been persuaded that the above-noted decisions were erroneous, and we therefore adhere to what was therein decided. These authorities are decisive of the instant case, and it therefore results that the judgment appealed from will be affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and SAYRE, JJ., concur.
1 196 Ala. 500. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/128236/ | 538 U.S. 927
GRANADOSv.TEXAS.
No. 02-8470.
Supreme Court of United States.
March 24, 2003.
1
CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS.
2
Ct. Crim. App. Tex. Certiorari denied. Reported below: 85 S.W.3d 217. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3227673/ | The defendant was tried at the Spring term, 1928, of the circuit court of Coffee county on a charge of violating the prohibition law. The jury returned a verdict of guilty and assessed a fine of $50. Judgment of conviction was entered forthwith, but defendant was released on his own recognizance and permitted to go home upon his promise to return on a certain day for sentence. Failing to return, defendant was brought into court on a capias and sentence was pronounced on September 14, 1928, being the fall term of the court. This was not a discontinuance by the state such as was the case in Ex parte King, 16 Ala. App. 118, 75 So. 710. The court had the power and authority at a subsequent term to complete the judgment and to sentence the prisoner. Clanton v. State,96 Ala. 111, 11 So. 299; Charles v. State, 4 Port. 107; Snyder v. State, 18 Ala. App. 188, 90 So. 40.
Section 4625 of the Code of 1923 does not affect the rule as above laid down. That section renders inoperative any suspension of sentence not authorized by law, and the penalties thereunder are directed at the presiding judge who should be guilty of its violation.
The judgment is affirmed.
Affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3183123/ | NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0130n.06
Case No. 14-1862
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Mar 07, 2016
DEBORAH S. HUNT, Clerk
TINA VARLESI, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
WAYNE STATE UNIVERSITY, et al., ) DISTRICT OF MICHIGAN
)
Defendants-Appellants. )
)
Before: BATCHELDER, McKEAGUE, and STRANCH, Circuit Judges.
ALICE M. BATCHELDER, Circuit Judge. Tina Varlesi was a graduate student in the
School of Social Work at Wayne State University (WSU). After receiving a failing grade and
being denied a degree from the social work program, she brought suit in federal court, against
WSU, her faculty advisor, Carol Premo, the WSU Director of Field Education, Anwar Najor-
Durack, and the Dean of the WSU School of Social Work, Phyllis Vroom, claiming, among
other things, pregnancy discrimination in violation of Title IX and Michigan’s Elliott-Larson
Civil Rights Act (ELCRA), and retaliation for her complaining about that discrimination.1
A jury found the defendants liable, and awarded Varlesi $848,690 in damages. The defendants
appeal the judgment and the denial of certain motions. We AFFIRM.
I.
In 2006, Tina Varlesi graduated from college with excellent grades, a degree in
psychology, and aspirations of being a social worker. That fall, she enrolled at WSU to obtain an
M.S. in Social Work, which is a two-year, graduate program with both classroom coursework
No. 14-1862
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and hands-on “field” work doing actual social work at an agency under the tutelage of a
(purportedly) licensed, qualified social worker. She was not an employee, nor was she even a
volunteer or an intern; she was a student paying WSU for this experience via tuition and fees.
Varlesi’s first year performance was outstanding: excellent grades in her classes and a
“satisfactory” (the highest possible grade) in both of her field placements. Apparently, one
agency even offered her a job, to commence after she obtained her degree. But during the
intervening summer, Varlesi became pregnant, although she was not married, and during her
placement in the fall semester of her second year, the trouble started (though her classroom
grades remained excellent).
That fall semester, beginning September 2007, Varlesi’s “faculty advisor,” Carol Premo,
placed her at the Veteran’s Administration (VA) Hospital under a “field instructor” named
Pamela Mackey, a placement that was problematic from the beginning, even before Varlesi
discovered her pregnancy (circa September 24, 2007).2 Varlesi did not like the placement at the
VA and Mackey did not like Varlesi, complaining extensively to Premo and ultimately
terminating the placement early. When Varlesi accused Mackey of pregnancy discrimination,
Premo summarily rejected the accusation and did not investigate. But, despite Mackey’s
scathing report, Premo did not fail Varlesi from that placement. Instead, Premo passed Varlesi
and placed her at the Salvation Army Adult Rehabilitation Center (an all-male rehabilitation
center for ex-convicts, drug addicts, etc.) for the spring semester, under a field instructor named
1
Other defendants named in this action obtained summary judgment. Those judgments are not appealed.
2
According to the WSU “School of Social Work Field Education Manual,” a “faculty advisor” and a “field
instructor” each has specific, defined authority, roles, and responsibilities:
The faculty advisor “provides assistance and feedback to the student at the [field placement] agency and mediates
placement related issues, including any that might occur between the student and the field instructor,” but more
importantly, “monitors and grades the student’s field work performance.” R. 56-3 at 11 (Manual), Pg ID# 1284.
Correspondingly: “A field instructor is a Licensed Masters Social Worker (LMSW) with 2 years post-MSW
experience and [an] agency staff member who supervises students at the field placement agency. The field
instructor also evaluates students and provides feedback to the faculty advisor for grading.” Id.
No. 14-1862
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Joyce Stefanski, with the expectation that Varlesi would also make up the incomplete hours from
the fall semester.
Varlesi began the spring semester, her final semester in the program, on January 7, 2008,
at the Salvation Army placement and Stefanski addressed her obvious pregnancy immediately,
ordering her not to drive after dark or in bad weather, questioning her marital status and living
arrangements, and announcing that though she had “had relations” with someone, the men at the
rehab “can look but they cannot touch.” Other students were present for this uncomfortable
conversation. And, within days, Sefanski was complaining to Premo about Varlesi’s alleged
underperformance, poor attendance, and bad attitude. There was also a separate problem. On
January 11, 2008, another student, Amber Bergin (one of three other students Premo had placed
at the Salvation Army), sent a mass email critical of the placement experience and of Stefanski
personally, pointing out, among other things, that Stefanski was not a licensed social worker, or
even actually a social worker, as was required by the Manual. The email infuriated Stefanski and
prompted a meeting on January 14, 2008, during which Stefanski told Premo she wanted to be
rid of Varlesi, and Varlesi requested to be reassigned. Premo refused. The placement continued.
Two weeks later, on January 27, 2008, there was another meeting, this one at Varlesi’s
request, attended by Varlesi, Stefanski, Premo, and Najor-Durack (Premo’s boss, the Director of
Field Education). During this meeting, Varlesi directly accused Stefanski of pregnancy
discrimination. Stefanski denied any discrimination but said she had told Varlesi repeatedly to
stop “rubbing her belly” and to wear looser clothing, and said that the men at the facility were
being “turned on by her pregnancy.” Neither Premo nor Najor-Durack considered any of that
discriminatory. They considered it reasonable under the circumstances and told Varlesi to wear
No. 14-1862
Tina Varlesi v. Wayne State University, et al.
looser clothing.3 They also told Varlesi that she could or should drop out of the program because
of her pregnancy.
The January 27th meeting did not resolve or improve the situation. Stefanski continued
to hound Varlesi, who complained to the WSU Office of Equal Opportunity, the WSU
Ombudsman, and Najor-Durack. Varlesi also hired an attorney. Premo was angry at Varlesi for
going over her head and scolded her about it. But Premo never criticized Varlesi’s performance
or warned her that she was failing the placement. In fact, when Varlesi sent Premo an email that
she thought things were improving, Premo responded (in her only email response to Varlesi’s
many emails), on February 2, 2008, with: “You have no idea how much that pleases me. I knew
I was backing a winner.” R. 196-1. Stefanski was still complaining to Premo, but neither ever
put anything in writing.
But the situation had not actually improved, and Varlesi requested yet another meeting,
which occurred on March 17, 2008, and comprised Varlesi, Stefanski, Premo, and Gary Gillow
(Stefanski’s boss). Stefanski again complained about Varlesi’s rubbing her belly, wearing tight
clothing, and stimulating the men with her pregnancy; Premo again supported Stefanski. When
Varlesi again raised the pregnancy discrimination, and her complaints about it, Premo scolded
3
Stefanski reenacted this “belly rubbing” during her trial testimony, R. 176 at 11-12, and while the written
transcript leaves much to the imagination, it does not appear from the context that this rubbing was sexual or
provocative. In fact, Stefanski at one point testified that she thought the belly rubbing was due to discomfort,
indicative of a medical problem with Varlesi or the baby. But she nonetheless insisted that it could have been
sexually suggestive, R. 176 at 69, and Premo testified that Stefanski’s problem with the belly rubbing was that it was
sexually “stimulating” the men, R. 175 at 18. Apparently, only Stefanski ever saw it; Premo denied ever seeing any
belly rubbing and Najor-Durack was only present for the one meeting, at which there was no belly rubbing.
Stefanski’s boss at the Salvation Army, Gary Gillow, denied ever seeing belly rubbing.
Apparently, only Stefanski thought that Varlesi’s clothing–which was maternity clothing–was too tight.
Stefanski testified that Varlesi wore slacks and sweaters (one that wrapped around like a robe) and never showed too
much skin. For her part, Premo testified that she never saw Varlesi wearing clothing that was too tight, but simply
relied on Stefanski’s statements. Nor did Gary Gillow ever see Varlesi wearing inappropriate clothing.
Finally, the accusation that Varlesi’s pregnancy was sexually stimulating the men was not thoroughly
developed or explained. Apparently, Stefanski and Premo (and perhaps Najor-Durack) harbored a belief that
pregnancy itself is sexually arousing to all or certain men, though at trial the defendants offered no expert testimony
to substantiate such an opinion nor did any of the men testify to actually having been “turned on” or aroused.
No. 14-1862
Tina Varlesi v. Wayne State University, et al.
her again and instructed her that she was not to talk to Najor-Durack or others about pregnancy
discrimination. But no one criticized Varlesi’s work quality and, oddly, they even discussed
where she wanted to work when she completed her degree. When Varlesi worried about
Stefanski’s malevolence, Premo assured her that she (Varlesi) was “doing great,” that Stefanski
had no authority to fail her, and in fact, Stefanski had never given anyone a failing evaluation.
Nonetheless, Stefanski continued to hound Varlesi about her belly, her clothing, and her
pregnancy, and to threaten a failing evaluation.
On April 15, 2008, Stefanski gave Varlesi a failing evaluation. Moreover, as the district
court noted, “WSU admit[ted] that Stefanski’s evaluation of [Varlesi] was the worst evaluation
any WSU social worker student ha[d] ever received.” R. 81 at 9 n.4. 4 Prior to and during the
eventual trial, Varlesi’s attorney established that this evaluation was procedurally deficient and
much of it was unsubstantiated, biased, and substantively untrue. At the time of the evaluation,
Varlesi had complained to Premo, Najor-Durack, and others that it was untrue, unfair, and based
on discrimination, but her complaints fell on deaf ears. She emailed, called, and wrote a lengthy
point-by-point rebuttal for Premo, who ignored her and the rebuttal. On April 29, 2008, Premo
gave Varlesi a failing grade in the placement, thus preventing her from obtaining the degree from
the social work program.
That same day, Varlesi filed a formal discrimination charge with WSU, which WSU
rejected on the basis that the School of Social Work had already investigated and dismissed it.
At trial, however, Dean Vroom confirmed that there had been no such investigation. Meanwhile,
Regardless, this peculiar accusation, in the context of this lawsuit, appears to be an accusation against pregnant
women in general (not Varlesi in particular) and is plainly discriminatory.
4
Recall that Varlesi wasn’t a poor student; she wasn’t even an average student; she was an excellent
student who had received top grades in her coursework and top evaluations in her first two placements and even a
job offer. None of the men in recovery at the Salvation Army ever complained about her and even Gary Gillow
(Stefanski’s boss) had a favorable opinion of her. Given the extremity of the review, in light of these other
circumstances, its legitimacy was immediately suspicious. And it was proven illegitimate via other evidence.
No. 14-1862
Tina Varlesi v. Wayne State University, et al.
Najor-Durack provided information to Vroom to oppose Varlesi’s grade appeal and, relying on
that information, Vroom denied the appeal and denied Varlesi’s request for readmission to the
program. Eventually, at trial, Varlesi’s counsel established that Najor-Durack had skewed or
fabricated the information against Varlesi, that Vroom had not followed the School’s procedures,
and that the approach and the harsh result were unique in the history of the program.
Varlesi brought this action in federal court, claiming pregnancy discrimination and
retaliation in violation of Title IX and Michigan’s ELCRA, among other things. She named the
four defendants already discussed herein as well as Stefanski, the Salvation Army, and three
WSU panel members who had denied her reinstatement. The parties filed numerous motions
with the district court and have appealed the court’s decisions as to several of those motions.
During discovery, the defendants sought an independent medical examination (IME) of
Varlesi, in order to challenge Varlesi’s claim of damages based on emotional harm. The court
denied the motion, explaining that Varlesi was not invoking an expert or asserting any medical
harm, she was just claiming “garden variety” emotional harm resulting from the ordeal. This is
typical of almost every tort case, and every tort case does not necessitate an IME. Here, the
court determined that an IME was not clearly necessary at that still-early stage of discovery,
denied it without prejudice, and specifically allowed that the defendants could refile the motion,
if no later than 90 days before trial. R. 53 at 6; PgID 558. The defendants never refiled the
motion.
The defendants moved for summary judgment. The court granted summary judgment to
the Salvation Army upon finding that it is not an educational institution subject to Title IX or
Michigan’s ELCRA counterpart, R. 81 at 15; nor was the Salvation Army subject to ELCRA as
either Varlesi’s employer, R.81 at 23, or a place of public accommodation, R. 81 at 27. The
court granted summary judgment to Stefanski on the same basis, among others. R. 81 at 29. The
No. 14-1862
Tina Varlesi v. Wayne State University, et al.
court also granted summary judgment on Varlesi’s other claims against the WSU defendants
(i.e., marital status discrimination, R. 81 at 39; sexual harassment, R. 81 at 48; and due process,
via qualified immunity, R. 81 at 53, which eliminated the three reviewing WSU panel members).
But, on Varlesi’s claims of pregnancy discrimination and retaliation, the court denied summary
judgment, finding that she had made a prima facie case and identified evidence for a jury
determination as to whether the defendants’ explanation (inadequate performance) was pretext:
[Varlesi] easily creates a fact issue on the question of whether the WSU
Defendants’ proffered reason—namely, performance issues—was the true reason
for the failing grade, in light of Premo’s statement to [Varlesi] a mere two weeks
before Stefanski issued her review of [Varlesi][,] that [Varlesi] was ‘doing great.’
Premo Dep. at 353. The WSU Defendants are hard pressed to rely on performance
deficiencies when [Varlesi]’s ultimate evaluator—Premo—told [Varlesi] as the
semester was nearing an end that she was ‘doing great.’ Nothing catastrophic
happened between the time of that statement and the issuance of her final grade.
R. 81 at 38-39; see also R. 81 at 45. Thus, the two claims proceeding to trial were pregnancy
discrimination and retaliation, against Premo, Najor-Durack, Vroom, and WSU.
The defendants moved in limine to exclude certain evidence from trial, including
Varlesi’s testimony about her emotional damages. The court granted that motion in part;
allowing Varlesi to testify but disallowing any expert statement or hearsay. R. 118 at 5. The
defendants sought to exclude certain other evidence as irrelevant, including: (1) discriminatory
statements by Salvation Army employees, (2) violations of the Field Education Manual, and
(3) that a WSU employee told Varlesi to omit accusations of discrimination from her application
for reinstatement. The court found this evidence relevant and denied the motion. Meanwhile,
Varlesi moved to exclude evidence of her 2002 hospitalization and the termination of her marital
engagement in 2007. The court found this evidence relevant to Varlesi’s claims of emotional
distress, but nonetheless excluded the evidence as too prejudicial, unless Varlesi “open[ed] the
door in her testimony about how she ha[d] been damaged emotionally.” R. 118 at 10.
No. 14-1862
Tina Varlesi v. Wayne State University, et al.
Following a 13-day trial, the jury ruled for Varlesi, finding the defendants liable and
awarding $848,690 in damages ($148,690 economic; $200,000 future; and $500,000 non-
economic). The district court entered judgment according to that verdict.
The defendants moved for judgment as a matter of law, a new trial, and a remittitur of the
damages award, claiming that (1) the verdict was contrary to the evidence, (2) the damages were
excessive, (3) the trial was unfair, (4) the court erred in certain evidentiary rulings, (5) the jury
instructions were improper, and (6) Varlesi’s counsel committed some unarticulated misconduct.
R. 169 at 2. The district court denied the motion in its entirety. The defendants appeal.
II.
Because we review most of these claims for abuse of discretion and because most of the
defendants’ arguments here are that the district court abused its discretion by misconstruing facts
or evidence, we begin with this standard of review. “The district court abuses its discretion when
it applies an erroneous legal standard, misapplies the proper legal standard, or relies on clearly
erroneous facts.” E.E.O.C. v. Peoplemark, Inc., 732 F.3d 584, 590 (6th Cir. 2013) (emphasis
added). Otherwise, an “[a]buse of discretion is defined as a definite and firm conviction that the
trial court committed a clear error of judgment.” Id. (quotation marks omitted). And “the trial
judge’s exercise of discretion is entitled to substantial deference, especially when the rationale
for the [decision] was predominantly fact-driven.” Id. (editorial and quotation marks omitted).
A.
The defendants claim that the district court abused its discretion by excluding certain
evidence about Varlesi’s 2002 hospitalization for mental health issues and the termination of her
marital engagement in the summer of 2007. Specifically, the defendants argue that Varlesi
“opened the door” to admission of this evidence of possible other causes of her emotional
No. 14-1862
Tina Varlesi v. Wayne State University, et al.
distress with her testimony about her ongoing emotional distress. The court found the evidence
relevant but much more prejudicial than probative and held that Varlesi did not open the door.
On appeal, the defendants cite Maday v. Public Libraries, 480 F.3d 815 (6th Cir. 2007),
as support for their proposition that “[e]vidence of alternative sources of emotional distress, such
as concurrent psychiatric illnesses or marital problems, should be admitted at trial.” Apt. Br. at
43 (emphasis added). First, it is a stretch to say that Maday stands for any such proposition and
there are numerous reasonable arguments that it does not. See Maday, 480 F.3d at 821 (holding
that the plaintiff had waived any purported social-worker-client-confidentiality privilege by
putting her emotional state at issue in the case). But, even accepting the proposition as
defendants state it, “should” is not “must,” and neither the defendants nor Maday suggest that
Federal Rule of Evidence 403 does not apply or that the court misapplied Rule 403 when it
balanced the relevance against the prejudice.
Instead, the defendants disagree with the court’s weighing of the evidence, contending
that when Varlesi testified about her ongoing emotional harm, the evidence of her 2002 mental
health and 2007 relationship turmoil “outweigh[ed] any prejudice because it directly rebut[ted]
[her] allegations” that she was “harmed only by Defendants.” Apt. Br. at 46. Varlesi points out
that the court excluded only two specific things: (1) her psychiatric hospitalization in 2002 and
(2) the “reason” for the termination of her marital engagement in 2007. The defendants could,
and did, raise (and question Varlesi and others about) alternative sources of emotional distress,
including: that Varlesi’s fiancé and father of her child left her, her mother’s significant health
issues, the deaths of close family and friends, the birth of her son and her being a single mother,
and the rigors of the litigation in this case. That is, the defendants did present significant
evidence to rebut any suggestion that Varlesi was “harmed only by Defendants.”
No. 14-1862
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On the whole, the court did not rely on any clearly erroneous facts; it relied on the record
facts and its decision is entitled to substantial deference. See Peoplemark, 732 F.3d at 590. We
find no abuse of discretion in this determination.
B.
The defendants claim that the district court abused its discretion by withholding until the
close of evidence the formal admission into evidence of certain letters, thus preventing the use of
the letters during testimony at trial. The defendants argue that these letters show (1) that
Varlesi’s performance problems predated the discrimination and retaliation and (2) that Premo
had supported Varlesi initially even though she knew Varlesi was pregnant and had complained
about discrimination. The defendants do not cite any cases to support this claim of error, but cite
only Federal Rule of Evidence 901 (authentication of evidence), and that only in passing.
The two letters in question were written by Pamela Mackey, the field instructor at the VA
Hospital where Varelsi did her fall 2007 semester placement; were very critical of Varlesi’s
performance at that placement; and were sent to Premo as attachments to an email. But the
letters themselves were undated. Moreover, Mackey testified that she might have written the
letters after Premo had already failed Varlesi, and this revelation was exacerbated when Najor-
Durack testified that, after failing Varlesi, Najor-Durack had solicited negative information from
Mackey about Varlesi to justify the failing. Thus the district court had concerns that the letters
were after-the-fact fabrications rather than contemporaneous reports that would have justified
Premo’s decision at the time, and withheld admission until the defendants produced the dated
email correspondence that established when Mackey had actually sent the letters to Premo.
Even assuming these letters were relevant (and that is questionable, given that Premo
passed Varlesi in that fall 2007 placement despite these letters and Mackey’s opinion should
have had no bearing on the grade for the spring 2008 Salvation Army placement), this was
No. 14-1862
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merely an exercise of the court’s Federal Rule of Evidence 901 authority. The court did not rely
on any clearly erroneous facts; it relied on the accurate record facts and its decision is entitled to
substantial deference. See Peoplemark, 732 F.3d at 590. On these facts and this record, there
was no abuse of discretion in this determination.
C.
The defendants argue that, by allowing the jury to award future damages, the district
court abused its discretion, first because any award of future damages would be too speculative
as a matter of law due to Varlesi’s young age; and second, because Varlesi did not prove that she
had mitigated her damages. Neither of these arguments has merit.
The defendants cite several cases as support for their proposition that Varlesi’s young age
necessarily rendered any future damages unavailable as a matter of law, but none of those cases
actually holds (or even suggests) that her “young age” is determinative. And that is not the law.
The law requires that, because future damages (a.k.a. front pay) are “often speculative,” the
district court must have “flexibility and wide discretion” in crafting such a remedy. Shore v.
Fed. Express Corp., 42 F.3d 373, 378 (6th Cir. 1994). And there are certain factors that must
guide the award of future damages, including mitigation of damages, “the availability of
employment opportunities, the period within which one by reasonable efforts may be re-
employed, the employee’s work and life expectancy, [and] the discount tables to determine the
present value of future damages,” among others. Roush v. KFC Nat’l Mgmt. Co., 10 F.3d 392,
399 (6th Cir. 1993). Varlesi provided evidence about, and the district court considered, these
factors, including her mitigation efforts, her inability to enroll in other graduate programs after
her failure at WSU, her job search and the prior job offer, and Bureau of Labor statistics.
As for mitigation, it was defendants’ burden to prove that Varlesi did not mitigate, see
Maden v. Chattanooga City Wide Serv. Dep’t, 549 F.3d 666, 680 (6th Cir. 2008), and they failed
No. 14-1862
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to persuade the district court or the jury. Given that the record does contain evidence of
Varlesi’s mitigation efforts, this is yet another argument about the weighing of the evidence.
The court did not rely on any clearly erroneous facts; it relied on the record facts and its
decision is entitled to substantial deference. See Peoplemark, 732 F.3d at 590. We find no abuse
of discretion in this determination.
D.
The defendants argue that the district court abused its discretion by denying their motion
for remittitur because: (1) the amount is so excessive that it shocks the conscience, (2) Varlesi
could invest the award and receive interest from that investment in perpetuity, and (3) Varlesi’s
evidence did not justify the award. The defendants cite several cases, but none is persuasive or
even clearly applicable. This is just another disagreement about the weighing of the evidence.
This award does not shock the conscience. Remittitur “should be granted only if the
award clearly exceeds the amount which, under the evidence in the case, was the maximum that
a jury could reasonably find to be compensatory for the plaintiff’s loss.” Roush, 10 F.3d at 397
(emphasis in the original; quotation marks omitted). The evidence here demonstrates that the
defendants’ discrimination and retaliation deprived Varlesi of the opportunity for employment in
her chosen field by denying her a graduate degree and denying her the ability to obtain that
degree elsewhere, thus causing actual damages and foreseeable emotional harm. This award
does not necessitate remittitur.
The defendants’ second argument—that Varlesi could invest the award at 5% interest and
receive dividends in perpetuity—is irrelevant and wholly frivolous. How a litigant might spend,
save, or invest an award has no bearing on the propriety of that award.
Finally, Varlesi produced evidence that the jury ultimately believed and found
informative in its calculation of damages. The defendants disagree with the weight of that
No. 14-1862
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evidence and they had their opportunity to counter it at trial. They failed to do so and their
continued disagreement does not mean the court abused its discretion.
The court did not rely on any clearly erroneous facts; it relied on the record facts and its
decision is entitled to substantial deference. See Peoplemark, 732 F.3d at 590. Again, we find
no abuse of discretion.
E.
The defendants claim that the district court abused its discretion by admitting (1) the
School of Social Work Field Manual and the defendants’ failure to abide by it, and (2) certain
pregnancy-related derogatory statements made to Varlesi by Salvation Army employees. Just to
be clear, the district court admitted the former as evidence that the defendants’ post-hoc
explanation was simply pretext and the latter as proof that the defendants were fully aware of the
discrimination.
The defendants argue that the evidence was misleading, irrelevant, and prejudicial; that
the potential for prejudice and confusion outweighed the probative value. But the defendants
offer no reason (or even argument) that the court was obligated or required to exclude this
evidence. This is, at best, another disagreement with the district court’s weighing of the
evidence. The court did not rely on any clearly erroneous facts; it relied on the record facts and
its decision is entitled to substantial deference. See Peoplemark, 732 F.3d at 590. The court did
not abuse its discretion in this evidentiary determination.
F.
The defendants claim the district court abused its discretion by refusing to give certain
requested jury instructions because they were correct statements of the law. To be sure, one
factor in a court’s determination of the propriety of a requested jury instruction is that it is a
correct statement of the law. See Williams v. Eau Claire Pub. Sch., 397 F.3d 441, 445 (6th Cir.
No. 14-1862
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2005) (citation omitted). But, even when that is so, it is nonetheless improper for a court “to
instruct the jury on an issue when there has been insufficient evidence presented to support a jury
finding on that issue.” Tuttle v. Metro. Gov’t of Nashville, 474 F.3d 307, 322 (6th Cir. 2007).
The first requested instruction was the same-actor-inference instruction; i.e., the same
actor (Premo) passed Varlesi in the fall 2007 semester but failed her in spring 2008, despite
Varlesi’s pregnancy and discrimination claims in both terms, so the jury could infer that after
first giving Varlesi a passing grade, Premo would not have discriminated or retaliated against her
four months later. But Premo’s attitude and the surrounding circumstances changed markedly
during this period. When Premo passed Varlesi in her VA Hospital placement (fall 2007
semester), Premo was unsure of exactly what had occurred there, or whom to believe. And while
Varlesi had raised accusations of pregnancy discrimination, she had not filed any formal
complaints and she certainly had not directly disobeyed Premo’s order that she not complain to
Najor-Durack. By the end of spring 2008, however, after four intense months of pregnancy
discrimination, accusations, meetings, discrimination complaints, and threats, Premo was—by
her own admission—fed up with Varlesi. Simply put, the evidence did not support the giving of
this instruction.
The second requested instruction was the presumption-of-regularity instruction; i.e., the
jury could presume that the defendants had regularly performed their duties. But the evidence
was to the contrary. The defendants did not perform their duties according to the written policies
contained in the School of Social Work Field Manual. In clear violation of, or disregard for, the
policies, Premo conducted her duties as “faculty advisor” to Varlesi without any plan, structure,
or consistency; kept no notes or records; did almost nothing to alleviate a very problematic
situation involving Varlesi’s pregnancy, instead condoning and joining the discrimination;
ordered Varlesi—in direct contravention of the Manual and the law—to stop raising
No. 14-1862
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discrimination complaints to Premo’s superiors; and then, by Premo’s own admission, failed
Varlesi in retaliation for making those complaints. Najor-Durack joined in the pregnancy
discrimination (ordering Varlesi to wear looser maternity clothing and advising her to drop out of
the program because she was pregnant), and then fabricated evidence to support the failing grade
and prevent a fair grade appeal or reinstatement review. Vroom ignored the Manual and rubber-
stamped the failing grade without any investigation; she also agreed with the dismissal of the
discrimination complaint despite knowing that no actual investigation or inquiry had ever been
undertaken. There is no “regularity” in any of that.
The third requested instruction was the business-judgment instruction, i.e., WSU had
discretion over its business judgments, even if they were wrong. But the decision to discriminate
and retaliate against a student, and then cover it up, is not a business judgment.
As the district court found, the evidence did not support these requested instructions. The
court did not rely on any clearly erroneous facts; it relied on the record facts and its decision is
entitled to substantial deference. See Peoplemark, 732 F.3d at 590. We find no abuse of
discretion in these determinations.
G.
The defendants argue that the district court used the wrong standard of causation for the
retaliation claim, based on University of Texas Southwest Medical Center v. Nassar, 133 S. Ct.
2517, 2526, 2533 (2013), which held that “Title VII retaliation claims must be proved according
to traditional principles of but-for causation.” That is, the defendants argue that Varlesi was
required to prove that Premo gave her the failing grade “because of” her complaining to Premo’s
superiors about the discrimination; it is not enough that the complaining (i.e., protected activity)
was merely a “motivating” or “substantial” factor influencing the failing grade (i.e., retaliatory
action).
No. 14-1862
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The defendants’ contend that the court instructed the jury that Varlesi had only to prove
that the protected activity was a “significant factor” motivating Premo’s retaliatory act. See Apt.
Br. at 58-59. Two of the court’s actual instructions are pertinent here:
Federal and state law also prohibit an educational institution from retaliating
against a student because the student has engaged in a protected activity.
R. 186 at 185, lines 7-10; PgID 8848 (emphasis added).
To establish a causal connection [for retaliation], Plaintiff must demonstrate that
her participation in a protected activity was a significant factor in Defendants’
adverse decisions.
R. 186 at 187, lines 21-24; PgID 8850 (emphasis added).
But Nassar, a Title VII case, went to some lengths to differentiate Title VII from Title IX
with regard to prohibitions on retaliation. See Nassar, 133 S. Ct. at 2530-31. Moreover, this
trial predated the Court’s issuance of Nassar by about five months, so the difference between
“because” and “significant factor” was not meaningful at the time and, in fact, “significant
factor” was actually the law. And the jury verdict form was framed as an express question that
used “because” and not “significant factor”:
Question 2
Do you find that any one of, or more than one of the Defendants . . . retaliated
against Plaintiff by awarding her a grade of ‘unsatisfactory’, dismissing her from
the Wayne State University and/or failing to reinstate her because she complained
about pregnancy discrimination?
R. 128 (emphasis added). The jury voted yes.
The Fourth Circuit considered a similar situation and rejected the employer’s argument
that Nassar’s change in the law warranted a new trial, explaining:
[D]espite the improper instructions, it is not clear that the jury actually determined
[the defendant]’s liability under the incorrect standard. The jury’s verdict sheet
may constitute ‘evidence to the contrary’ of our typical assumption that the jury
followed the district court’s instruction on this claim. On its verdict sheet, the
jury found that [the plaintiff] had proven ‘he was terminated from his employment
by the defendant because of his opposition to activity made unlawful under Title
VII.’ Under Nassar, the use of ‘because of’ indicates the existence of a but-for
No. 14-1862
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causal relationship. . . . The jury’s finding that there was no lawful reason for [the
plaintiff]’s termination indicates that it could have concluded retaliation was a
but-for cause of the adverse employment action.
E.E.O.C v. A.C. Widenhouse, Inc., 576 F. App’x 227, 231-32 (4th Cir. 2014) (editorial marks,
citations, and certain quotation marks omitted). Notably, like Nassar, Widenhouse was a Title
VII case, whereas the present case is a Title IX discrimination and retaliation case.
But the basic premise holds: the jury here found expressly that the defendants retaliated
against Varlesi because she complained, “because” means “but-for” under Nassar, and the
defendants have not shown that the outcome would have been different had the court consistently
used “because” instead of “significant factor” in its oral instructions. Therefore, even assuming
that Nassar applies to Title IX claims, we conclude as the Fourth Circuit did in Widenhouse that
the defendants cannot demonstrate prejudice from this perceived error and it is consequently not
reversible.
H.
The defendants claim that the district court erred by refusing a directed verdict based on
insufficient evidence. Fed. R. Civ. P. 50 (providing that the court may grant a judgment as a
matter of law if “a reasonable jury would not have a legally sufficient evidentiary basis to find
for the party”). In reviewing the district court’s order, we must view the evidence in the light
most favorable to the party against whom the motion is made, giving that party the benefit of all
reasonable inferences. The motion should be granted, and the district court reversed, only if
reasonable minds could not come to a conclusion other than one favoring the movant. See K & T
Enters., Inc., v. Zurich Ins. Co., 97 F.3d 171, 175-76 (6th Cir. 1996). Simply put, Varlesi
produced evidence that Premo joined or enabled Stefanski’s discrimination against her due to her
pregnancy and also retaliated against her (via a failing grade in her placement and failing her
from the program) for complaining about that discrimination; Najor-Durack joined in the
No. 14-1862
Tina Varlesi v. Wayne State University, et al.
pregnancy discrimination (ordering Varlesi to wear looser maternity clothing and advising her to
drop out because she was pregnant), then solicited evidence to support Premo’s failing grade and
prevent a fair grade appeal or reinstatement review; and Vroom ignored the Manual, approved
the failing grade without investigation, and agreed with the dismissal of the discrimination
complaint despite knowing that no actual investigation or inquiry had ever been undertaken.
A reasonable jury could point to this evidence as a basis for its verdict.
I.
The defendants argue that the district court should have granted them summary judgment,
for the reasons “discussed in Defendants’ Motion for Summary Judgment.” Apt. Br. at 60. But
“a losing party may not appeal an order denying summary judgment after a full trial on the
merits.” Hill v. Homeward Residential, Inc., 799 F.3d 544, 549-50 (6th Cir. 2015).
This claim is frivolous.
III.
For all of the foregoing reasons, we AFFIRM the judgment of the district court. | 01-03-2023 | 03-07-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435685/ | I. The first count of the petition claimed $150 as damages for the destruction of two acres of growing corn, and for injury to one other acre of growing corn. The alleged injury was caused on June 6, 1924, as the result of a heavy rainfall and alleged diversion of the water by the defendant upon the plaintiff's land. The second count was predicated upon a similar diversion, following a heavy rainfall on June 14, 1925. The alleged injury was suffered upon the same farm as that described in Count 1, and resulted, as alleged, in the destruction of eight acres of corn and one-half acre of potatoes, and in *Page 656
other injury, to the damage of the plaintiff in the sum of $640. The discussion between the parties has taken a wide range, and has covered many subjects, some of which do not appear to us very pertinent. The real problem presented to us is to discover in the record some affirmative act of negligence or some failure of duty on the part of the defendant which could be deemed the efficient and proximate cause of the injury suffered by the plaintiff. Thelocus quo was upon the Missouri flats, at a place where there is no drainage, and no "fall" available for drainage purposes, and where the elevation was substantially that of the Missouri River. It was within an organized drainage district known as the "Pony Creek Drainage District." The improvement of this drainage district consisted in a shallow excavation of the purported stream, and in the construction of levees on its berms. Pony Creek in its natural condition was a variable and intermittent stream extending southerly toward the Missouri River, and extending from the foot of the highlands which skirt the Missouri flats on their easterly side. It was a shallow stream, which readily overflowed in times of heavy rainfall. Such overflows had no return to the creek after the subsidence of the flood, but they spread out over vast areas, and formed lakes and ponds. This creek was crossed by the defendant's railway, running east and west, — the crossing being substantially at right angles. Prior to 1902, the railway company carried its railway across this creek and the areas on either side thereof, on a trestle for a distance of 300 feet or more. Proceedings for the establishment of the Pony Creek Drainage District were begun in 1902, and the work was completed in 1904. The improvement contemplated and constructed pursuant to such proceedings was not a drainage project. The plan was to construct what may be termed an aqueduct, which should conduct the water coming from the highlands and confine the same within its banks, so as to prevent its spread over great areas. At its head, this aqueduct received the waters collected from a watershed of 8,000 acres of high lands. Levees were constructed on either side, to a height of four or five feet above the natural surface. It was sought thereby to conduct all the water from the upper sources within these levees to an outlet some distance south of the railroad and its trestle. The plan of the improvement had no *Page 657
provision for any drainage of the areas contiguous to the stream or the levees. Pursuant to these proceedings (though denying their legal validity) the defendant-company abandoned its trestlework and built a bridge over the channel of the improvement, consisting of a single span 80 feet long, with a clearance of 7 feet above the ground. The distance between the levees was 50 feet. The improvement did not prove efficient. The channel filled up with silt. Clean-outs were ordered and had in 1908, 1916, and in 1923. In 1908, some changes were made in the plans. Pursuant to these, the defendant-company raised its bridge1.6 feet, giving it a clearance of 8.45 feet. At the time of the construction of its bridge, in 1902, the defendant-company abandoned its trestlework, and substituted therefor an embankment, extending from each end of its bridge. The plaintiff's farm lies on the south side of the embankment and on the east side of the Pony Creek levee, and abuts upon each. It nestles in the angle made by the railroad embankment on its north side and the Pony Creek levee on its west side. The following diagram roughly indicates its location at Angle A:
[EDITORS' NOTE: DIAGRAM IS ELECTRONICALLY NON-TRANSFERRABLE.]
Plaintiff's position in her litigation is somewhat unique. She averred that the defendant caused the waters to be dammed up, and thereby to be cast upon her. She averred that the bridge was the obstruction which so dammed the waters. Ordinarily it is an upper proprietor who complains of obstructed streams. She is not an upper proprietor. What happened was an extraordinary rainfall on each of the dates named in her petition, — June 6, 1924, and June 14, 1925. The collected waters from the hillsides of the upper area came down in such enormous volume as to submerge the railroad, with its embankment and its bridge. When the water rose to the level of the railroad, it necessarily overflowed, and escaped *Page 658
in all directions. The contention of the plaintiff in argument is that, if the railroad bridge had been higher, so that the water could have passed under it, there would have been no overflow, and she would not have suffered thereby. In its final analysis, however, her complaint is that the railroad embankment was not high enough to protect her against the overflow. The plaintiff predicates her complaint against the defendant, not upon any specific conduct, nor upon any specific failure of duty, other than the negligence which may be implied from the mere fact that the plaintiff's embankment and bridge, as constructed, proved unavailing to confine the waters within the channel of Pony Creek. If this were a case where the defendant had obstructed a natural watercourse, so as to hold or divert water upon the land of another to his injury, it would be subject to liability therefor. This might fairly be termed a common-law liability. The mere fact that the waters were withheld and diverted would be evidence of the inadequacy of the provision made therefor. This is the theory upon which plaintiff has proceeded in this case. But her case is not of that kind. In such a case, there is a continuing duty upon the railroad company to keep open the watercourses with adequate openings. Failure to perform that duty is necessarily actionable. What was the duty resting upon the defendant in this case, as between it and the plaintiff? To answer this question, account must be taken of the organization of the drainage district. The organization of this district and the inclusion of the defendant and its right of way therein created a new status for the defendant. This organization was an exercise of the power of the state, and it laid its mandates upon the defendant. The defendant was not at liberty to ignore them nor to substitute its own judgment or discretion therefor. The organization of this district was had under the statutes then in force, which, so far as material herein, appear as Section 1989et seq., 1913 Supplement. Under these statutes, the property owners in a district had no control over the plan of the improvement. This was to be fixed by the board of supervisors, with the help and advice of a competent engineer. Every property owner became under legal duty to conform thereto. Section 1989-a18 defines the duty of a railroad company whose right of way is crossed by the proposed improvement. *Page 659
This section provides that the county auditor shall serve written notice upon the railroad company, "stating the nature of the improvement to be constructed, the place where it will cross the right of way of such company, and the full requirements for its complete construction across such right of way as shown by the plans, specifications, plat and profile of the engineer appointed by the board, and directing such company to construct such improvement according to said plans and specifications at the place designated, * * * and upon receiving said notice it shall be the duty of such railroad company to construct the improvement across its right of way according to the plans andspecifications furnished in said notice * * * if such railroad company shall fail, neglect or refuse to do so within the time fixed in said notice the auditor shall cause the same to be done under the supervision of the engineer in charge of the improvement and such railroad company shall be liable for the cost thereof to be collected by the county in any court having jurisdiction."
If, therefore, the railroad company responded to this demand upon it, it performed its full duty under the statute. If it failed to do so, the board of supervisors had power to carry out the improvement according to the plans, at the cost of the railroad company. In either event, the railroad company could not be deemed responsible for the plan. If the plan laid before it should prove to be impracticable and unworkable, the fault therefor could not be attributed to the railroad company or to any other property owner. So far as appears in this record, the defendant-company performed the requirements made upon it in such notice. If the cross section of the improvement was not large enough, or if the clearance was not high enough, the responsibility therefor was upon the superior authority. In any event, negligence may not be predicated by the plaintiff upon the mere fact that the improvement, as actually constructed according to plan, did not prove efficient in the emergency.
It appears from the evidence that, upon the construction of this improvement, more water flowed down Pony Creek than had ever done before. There was a clear tendency to an increase of flow in the successive years. The upper section of Pony Creek had a considerable fall in elevation, and the current *Page 660
there was swift, and carried with it much silt brought down from the higher ground. Later in its course, and before it reached the defendant's right of way, the bed of the stream became flat. The loss of current precipitated the silt, and the channel filled up rapidly, and to such an extent that, for much of the distance, the bed of the stream was higher than much of the natural surface of the ground. Moreover, the swift running of the water from the upper level to the lower one caused the water to rise more rapidly where the current was slower.
In the first instance, as constructed in 1902 and 1903, the improvement consisted merely of waste banks, resulting from the work of excavation of the channel. The excavation was two or three feet deep. The engineer in charge was Dean, who was used as a witness by both sides, and who testified for the plaintiff as follows:
"There were waste banks on either side of the ditch: in someplaces dressed up to constitute levees; in others, wasted on the sides of the ditch."
The height of these waste banks was 4 or 5 feet. These waste banks were extended up to the right of way on either side. The right-of-way embankment was at that time about 7 feet high. In 1908, a clean-out was ordered by the board of supervisors; also, repair and improvement. The distance between the levee was extended by 50 feet. The material taken by excavation was piled up again as waste banks, to a higher elevation than before. At this time, the defendant-company raised its bridge 1.6 feet. What occurred in the building up of waste banks and levees was substantially repeated in 1916 and in 1923. Approximately 125,000 yards of dirt were taken out of the channel at each time. The waste banks forming the levees were piled up at irregular heights, ranging from 8 to 15 feet. The levees, crossing the right of way, consisted of the railroad embankment. This was approximately 8 feet. At other places, the waste banks were as high as 15 feet. It does not appear whether the board of supervisors fixed a definite elevation for the height of the levee. Manifestly, no levee, as such, could be higher than its lowest point. A short distance above the railroad bridge was a wagon bridge, where the level of the levee was substantially the same as at the railroad *Page 661
bridge. A similar condition existed 350 feet below the railroad bridge. Presumptively, this construction of the levee was not in violation of any order by the board. If it had been, the board had power and duty to correct it. The defendant's bridge rested on piers at each end. It had no intermediate supports. Its strength was provided for by steel girders.
On each of the dates in question, an extraordinary rainfall occurred. Each was sufficiently similar to the other that we need not describe them separately. One of the witnesses for the plaintiff measured 5 inches of rainfall in 25 minutes of time. There is considerable range in the testimony as to the extent of the rainfall, but it appears from that of many witnesses that in a very brief time there was a rainfall of approximately 10 inches.
Plaintiff argues that the steel girders operated as a dam, and obstructed the flow of the water, and caused it to rise higher above the bridge than below it. The material of a bridge necessarily operates as an obstruction pro tanto, whenever the level of the water reaches it. Up to that level, the bridge offered no interference. When the water reached that level, it reached also the level of the embankment. According to the testimony of some of plaintiff's witnesses, the water did in fact reach a level one foot higher than the top of the bridge. Irrespective of that, when the eight-foot level was reached, the water was bound to escape from Pony Creek. It did escape, and did run over the railway embankment in both directions, and necessarily found its way to the land of the plaintiff. Her land was low and flat, and without any provision for drainage. It was in that area which, prior to the construction of the improvement, was necessarily flooded by every overflow of Pony Creek. The construction of the improvement operated to her substantial protection in times of ordinary rainfall. Though she does not in terms base her complaint upon want of sufficient elevation of the levee and the embankment, yet such is the essence of it. If this was a deficiency, it inhered in the plan of the improvement. The dimensions of a drain or of a conduit are of the very essence of the plans and specifications thereof.
It does appear that the cross section under the bridge had been diminished by the accumulation of silt thereunder. Though *Page 662
the clean-out of the ditch occurred in the summer of 1923, the clearing and excavation then made had all been rendered nugatory by the further deposit of silt before the month of June, 1924. The defendant-company had no responsibility for this. It was the natural and necessary result of the construction of the improvement as planned. If the defendant had interposed obstacles to, or interference with, the natural working of the improvement as planned and constructed, a different question would be presented.
At this point, the appellee cites and relies upon such cases asChicago N.W.R. Co. v. Drainage Dist., 142 Iowa 607, and MasonCity Ft. D.R. Co. v. Board of Supervisors, 144 Iowa 10. In the latter case we said:
"The right of drainage through the natural watercourse is a natural easement appurtenant to the land of every individual through which it runs, and every owner of the land along such watercourse is obliged to take notice of the easement by others along the same. In constructing its embankment or culverts or bridges through it, the company does so subject to the right of the state by appropriate agencies to provide for such use of the natural watercourse as subsequently may become necessary and proper for public interests."
Also:
"Drainage, within the contemplation of the above statute, is for public use, convenience, and welfare (Sisson v. Board ofSupervisors of Buena Vista County, 128 Iowa 442); and, this being so, the making of the improvement is within the police power of the state, and injury such as here claimed, being merely incidental thereto, cannot be regarded as the taking of property, within the contemplation of the Constitution. Chicago, B. Q.R.Co. v. People, supra [200 U.S. 561]."
These cited authorities are not applicable at all to plaintiff's case. In these cases, the state was exercising its supreme authority through the agencies provided by statute, and the railway companies were challenging such exercise of power by the state, on the ground that it was in violation of the constitutional rights of such companies.
In the case at bar, the state did exercise its authority, *Page 663
and through its proper agencies did plan and order and construct the improvement in question, and every landowner involved was bound to be obedient thereto.
Whether one landowner in a drainage district may, under any circumstances, sue another landowner in the same district for injuries resulting from the deficiency or limitation of the improvement constructed, we have no occasion now to determine. It is conceivable, in such a case, that an upper proprietor might suffer injury because the tile drain of the lower proprietor might prove inadequate to carry promptly away the water delivered from the upper land. Counsel would hardly suggest liability of the lower proprietor in such a case, even though the lack of capacity in the lower drain operated as a dam in checking the flow of water.
What we hold at this point is that, in ascertaining the nature and scope of the defendant's duty in relation to this watercourse, account must be taken of the fact that the state had asserted its supreme authority in the organization of the drainage district and in the construction of the improvement, and that the statutory duty thereby imposed upon the defendant became paramount and controlling.
Though the defendant was bound, under the statute, to construct the proposed improvement across its own right of way, and at its own expense, in the first instance, yet, both under the Constitution and under the statute, it was entitled to damages on account of such construction. Manifestly, it could not enlarge its claim for damages by constructing the improvement in larger dimensions than those laid before it. For like reason, it must be said, we think, that, in conforming to the plans adopted by the supreme authority, it cannot be deemed to have done so at its own peril.
As we have already indicated, no fact appears in this record which tends to establish any affirmative act of negligence or any omission of duty except that the improvement, as constructed, proved inadequate, on the particular extraordinary occasions, to protect the plaintiff. Such inadequacy does not constitute proof of negligence, either of the defendant or any other individual landowner in the district. The defendant's motion for a directed verdict should, therefore, have been sustained. *Page 664
II. The abstract of appellant has not conformed to the rule requirements. The record is quite voluminous, and should have been carefully indexed. The evidence in the record was not indexed to any extent, except that the names of the witnesses were set forth alphabetically. Many exhibits were introduced, and are interspersed through the record. Not one of them was referred to in the purported index. This omission was partially atoned for by attaching an index to the brief, wherein the exhibits were included. But no suggestion was made anywhere to bring such index to our attention. The record is complicated, and we have been put to much additional labor by reason of the omission stated. We think the appellant should be penalized for the infraction noted. It will be ordered that no costs shall be taxed in this court for the appellant. For the reasons indicated in Division I hereof, the judgment of the district court is reversed. — Reversed.
All the justices concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3435686/ | Charles D. Nolan filed a petition in equity, alleging that Benton county, Iowa, entered into a contract with Larimer
Shaffer, Inc., for the supplying by Larimer Shaffer of crushed rock to be used in the construction of certain highway improvements; the said contract being entered into on or about April 14, 1932. The petition further alleged that on that date the appellant entered into an oral contract with the said Larimer Shaffer, Inc., to furnish equipment and to perform labor of drilling blasting holes in the rock quarry of said company, which was situated near Cedar Rapids, in Linn county; that the said Nolan, in the performance of said oral contract on his part, drilled a large number of blasting holes in said quarry; that an itemized statement thereof was filed in the office of the auditor of Benton county on January 7, 1933; that the balance due the appellant for said drilling was $1,868.72; and that there was a balance due from Benton county to Larimer Shaffer, Inc., on this contract, in the sum of $2,961.19. *Page 601
The appellant also alleged that the appellees, E.K. Larimer Hardware Company and the American Trust Savings Bank each claimed some interest in the funds in the hands of the county of Benton, and he prayed that the court find and determine the rights and interests of the respective parties to the funds, and that judgment be entered accordingly and direction given in order that the county auditor of Benton county might pay out the funds constituting the balance held by the county to the parties entitled thereto, and that the fund be impressed with the lien of the appellant in the amount of $1,868.72. The appellant prayed generally for such further rights and awards, including the taxing against said fund of a reasonable attorney's fee as provided in chapter 452 of the 1931 Code, and for costs.
The appellees American Trust Savings Bank filed an answer and cross-petition in which they admitted the contract between Larimer Shaffer and Benton county for the furnishing of the crushed rock by Larimer Shaffer to Benton county, but denied that the appellant had any claim whatever to the funds in the possession of Benton county as the balance due on said contract with Larimer Shaffer, and denied that the appellant furnished material or performed labor in the said highway improvement and that he was entitled to a lien under chapter 452 of the Code. As a cross-petition, the American Trust Savings Bank pleaded an assignment by Larimer Shaffer, Inc., to the bank of all their right, title, and interest in the proceeds received from the contract between Larimer Shaffer, Inc., and Benton county, alleging the assignment to have been executed under date of November 7, 1932, and that notice of said assignment was served upon the auditor of Benton county.
The appellees E.K. Larimer Hardware Company, Inc., filed an answer and cross-petition in which they admitted the contract between Larimer Shaffer and Benton county, providing for Larimer Shaffer to furnish crushed rock to be used in the construction of certain highway improvements in Benton county; but they denied that the appellant had any right, title, or interest to the funds in the hands of Benton county, and denied that the claim of the appellant was within the provisions of the statutes of the state of Iowa relating to labor and material in public improvements, and denied that the appellant furnished any labor or material in the construction of said public improvements in Benton county. By way of cross-petition, E.K. Larimer Hardware Company pleaded that on the 5th day of January, 1933, they obtain a judgment against *Page 602
Larimer Shaffer, Inc., in the sum in excess of $8,000 and costs, in the district court of Linn county, Iowa, for powder and explosives sold and delivered to Larimer Shaffer for use in the quarry at Cedar Rapids; that by virtue of an execution on said judgment the county of Benton was garnished on January 7, 1933; that the county of Benton had filed its answer as garnishee, admitting that it had in its possession the sum of $2,961.19. E.K. Larimer Hardware Company alleged that their claim and lien upon the said fund in the hands of Benton county was prior and superior to the claim or lien of the appellant and any of the other defendants.
The appellees Larimer Shaffer filed an answer in which they admitted that they had entered into a contract with the county of Benton to supply crushed rock to the county of Benton for certain highway construction, and admitted that the appellant had filed a claim with the county auditor of Benton county, but denied the other allegations of the petition.
The appellee Porter Kimm filed an answer alleging that there was a claim due him of $310.52 on account of labor and service rendered by him in construction work.
The appellees E.K. Larimer Hardware Company filed their answer to the cross-petition of the American Trust Savings Bank, in which they denied on information and belief the existence of the assignment by Larimer Shaffer to said bank, and denied that said assignment was superior to the rights of the appellees E.K. Larimer Hardware Company.
The Massachusetts Bonding Surety Company filed an answer in which it admitted the execution of its bond, but denied that the appellant furnished any material or services in the construction of the public improvement as contemplated by the statute.
The other claimants who had filed claims with the county auditor all withdrew their claims.
It is apparent, therefore, that the pleadings present two controversies: First, that between the appellant on the one hand and the appellees the American Trust Savings Bank and Larimer Hardware Company, on the other hand, as to whether the appellant's claim set forth in his petition was such a claim that would entitle the appellant to a lien under chapter 452 of the Code; and, second, if the appellant had no lien under his claim as filed by him with the county auditor of Benton county, then the controversy was between the American Trust Savings Bank and E.K. Larimer *Page 603
Hardware Company as to whether the bank was entitled to the entire fund under its alleged assignment or whether the Larimer Hardware Company was entitled to the entire fund under its judgment and garnishment.
In view of the situation just referred to as to the issues, the court at the commencement of the trial made the following ruling:
"The cause came on for hearing upon the issues presented by the Plaintiff's petition and the answers thereto, the trial upon the issues between the Defendants, American Trust Savings Bank and E.K. Larimer Hardware Company, raised by the cross-petitions being reserved and continued to a later date. Cause proceeds to trial only on the issues of the claim of the Plaintiff. The issues as to the other Defendants continued."
Under the ruling above set out, the court listened to the evidence presented by the appellant and by the appellees on the claim of the appellant, and entered an order and decree in which the court found that the appellant was not entitled to the relief asked for in his petition and was not entitled to have his claim, asserted by him in his petition, established against the funds in the hands of Benton county, under chapter 452 of the Code; that the appellant's petition and the claim presented thereby against the funds in the hands of Benton county was dismissed at appellant's costs. And the court in the decree ordered that the trial of the issues raised by the cross-petitions filed by the appellees American Trust Savings Bank and E.K. Larimer Hardware Company be continued to such date as agreed upon by said appellees.
From the order and judgment of the lower court, Charles D. Nolan, the plaintiff below, has appealed to this court.
The questions which confront this court now are whether or not the lower court was right in holding that the appellant, Charles D. Nolan, was not entitled to the relief prayed for in his petition, to wit, the establishment of a lien against the funds in the hands of Benton county under chapter 452 of the Code, and whether or not the lower court was right in refusing to enter a judgment against Larimer Shaffer, Inc., for the amount due the said Charles D. Nolan for drilling blasting holes in the quarry.
[1] We will first take up the question of whether or not Nolan was entitled to a lien under chapter 452 of the 1931 Code against the funds in the hands of the county auditor of Benton county. *Page 604
Code, section 10305, provides:
"10305. Claims for material or labor. Any person, firm, or corporation who has, under a contract with the principal contractor or with subcontractors, performed labor, or furnished material, service, or transportation, in the construction of a public improvement, may file, with the officer, board or commission authorized by law to let contracts for such improvement, an itemized, sworn, written statement of the claim for such labor, or material, service, or transportation."
It will be noted that the statute just quoted provides that those who are entitled to liens must be those who "under a contract with the principal contractor or with subcontractors, performed labor, or furnished material, service, or transportation, in the construction of a public improvement." In the case at bar Larimer Shaffer were not engaged in the construction of a public improvement. Larimer Shaffer, Inc., had entered into a contract with Benton county, not for the construction of a public improvement, but for the furnishing of certain crushed rock which was to be delivered to Benton county. It is true that the record shows Benton county was going to use the crushed rock in the construction of a public improvement, but the construction was to be by Benton county and not by Larimer
Shaffer. Larimer Shaffer's contract simply provided for the furnishing to Benton county of the crushed rock, and not for the construction of a public improvement.
This very question has lately been before this court. In the case of Forsberg v. Koss Construction Company, reported in218 Iowa 818, at page 825, 252 N.W. 258, Chief Justice Claussen, speaking for the court, said:
"One who furnishes material under contract with the principal contractor may file a claim for the price of such material. One who performs labor under contract with the principal contractor may file a claim for his wages. But the employee of one who furnishes material to the principal contractor has no contract with the principal contractor and performs no labor for him. His contract of employment is with the one who furnishes the material, and his labor is performed for the materialman. He may not file a claim for his wages because his labor was not performed under contract with the principal contractor. It seems clear, under the statute, that demands for labor and materials entering into the production *Page 605
and transportation of material furnished to the principal contractor, up to the time it is delivered, may not be filed as claims under the statute, for the requirement of the statute is that the material must be furnished and the labor performed under contract with the principal contractor.
"We are not unmindful of the fact that under the statute one who furnishes material or performs labor under contract with a subcontractor in the construction of a public improvement may file a claim. The relationship between the principal contractor and the materialman is contractual, but the fact that the contractor has a contract with the materialman does not make the materialman a subcontractor. The laborer who works on the job with a shovel has a contract with the contractor under which he performs a part of the work, as indispensable to its completion as the furnishing of material, yet no one would contend for a moment that he is a subcontractor."
In view of the decision above cited, which covers the case at bar, we are constrained to hold that the lower court was right in denying to the appellant the lien which he claimed.
[2] The second proposition which is before this court is the claim of the appellant that he is entitled to personal judgment against Larimer Shaffer.
It appears from the record that there is no question Larimer
Shaffer, Inc., are indebted to Mr. Nolan, the appellant, in the amount of $1,868.72. It is admitted in the record by the president of said corporation that they were so indebted. And, in view of the admission by Larimer Shaffer, Inc., the lower court should have entered personal judgment against Larimer Shaffer, Inc., in the amount of $1,868.72, with interest and costs. And the judgment and decree of the lower court will be reversed and remanded, with direction to the lower court to enter judgment against the appellees Larimer Shaffer, Inc., and as to all other parties the judgment and decree of the lower court will be affirmed. — Affirmed in part, reversed in part.
CLAUSSEN, C.J., and EVANS, STEVENS, KINDIG, ANDERSON, and KINTZINGER, JJ., concur. *Page 606 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2949043/ | IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-53,354-04
EX PARTE ROBERT ALLEN GILMORE, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 23784A-422 IN THE 422nd DISTRICT COURT
FROM KAUFMAN COUNTY
Per curiam.
ORDER
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the
clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of driving while
intoxicated and sentenced to forty years’ imprisonment. No direct appeal was taken.
Applicant contends that prison officials are failing to credit him with all the pre-sentence jail
time awarded in his judgment. Specifically, the Applicant alleges that he is being denied credit for
the following periods set out in his judgment:
A. September 8, 2004 until September 10, 2008; and
2
B. March 10, 2005 until March 10, 2005.
In order to resolve Applicant’s claim, on April 20, 2012, the trial court signed an order
designating the following issue:
Whether the Applicant’s judgment accurately reflects the pre-trial credit due
to him, and whether TDCJ’s records accurately reflect the time awarded in
the judgment.
The Applicant’s writ was then forwarded to this Court, two years later, without any resolution
of the issue designated by the trial court.
In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334
S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact.
The trial court shall order the Texas Department of Criminal Justice’s Office of the General
Counsel to file an affidavit stating whether or not Applicant is receiving credit for the time periods
set out on his judgment in this case. The affidavit should also indicate whether or not Applicant has
submitted his claim to the time credit resolution system of TDCJ, and if so, the date when the claim
was submitted.
The trial court may also order depositions, interrogatories or a hearing. In the appropriate
case, the trial court may rely on its personal recollection. Id. If the trial court elects to hold a
hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be
represented by counsel, the trial court shall appoint an attorney to represent Applicant at the hearing.
TEX . C ODE CRIM . PROC. art. 26.04.
The trial court shall make findings of fact and conclusions of law as to whether Applicant
has properly exhausted his administrative remedies as required by TEX . GOV ’T CODE § 501.0081(b)-
(c). The trial court shall also make findings and conclusions as to whether Applicant is receiving
3
the proper amount of time credit. The trial court shall also make any other findings of fact and
conclusions of law that it deems relevant and appropriate to the disposition of Applicant’s claim for
habeas corpus relief.
This application will be held in abeyance until the trial court has resolved the fact issues. The
issues shall be resolved within 90 days of this order. A supplemental transcript containing all
affidavits and interrogatories or the transcription of the court reporter’s notes from any hearing or
deposition, along with the trial court’s supplemental findings of fact and conclusions of law, shall
be forwarded to this Court within 120 days of the date of this order. Any extensions of time shall
be obtained from this Court.
Filed: November 5, 2014
Do not publish | 01-03-2023 | 09-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3063562/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-14996
APRIL 14, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 03-00558-CR-TWT-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARUEL ANTONIO RIVERA,
a.k.a. Tony Martinez,
a.k.a. Tony,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(April 14, 2009)
Before BARKETT, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Aruel Antonio Rivera, a federal prisoner convicted of conspiracy to possess
with intent to distribute and to distribute at least 5 kilograms of cocaine and at least
50 grams of cocaine base, appeals the district court’s denial of his pro se 18 U.S.C.
§ 3582(c)(2) motion to reduce sentence based on Amendment 706 to the
Sentencing Guidelines. In denying his § 3582 motion, the district court noted that
Rivera was sentenced to a mandatory life sentence and was a career offender. On
appeal, Rivera argues that the district court’s denial of his motion was based on
facts that were unsupported by the record because the district court factually erred
in finding that he was sentenced as a career offender and that he was serving a
mandatory minimum life sentence.
“We review a district court’s decision whether to reduce a sentence pursuant
to 18 U.S.C. § 3582(c)(2), based on a subsequent change in the sentencing
guidelines, for abuse of discretion.” United States v. Brown, 332 F.3d 1341, 1343
(11th Cir. 2003). We review “de novo the district court’s legal conclusions
regarding the scope of its authority under the Sentencing Guidelines.” United
States v. White, 305 F.3d 1264, 1267 (11th Cir.2002). A district court’s findings
of fact are reviewed for clear error. United States v. Crawford, 407 F.3d 1174,
1177 (11th Cir. 2005). However, we will not reverse based on a harmless error.
United States v. Mathenia, 409 F.3d 1289, 1292 (11th Cir. 2005).
A district court generally cannot modify a term of imprisonment after it has
2
been imposed. United States v. Moreno, 421 F.3d 1217, 1219 (11th Cir. 2005).
However, there is an exception under 18 U.S.C. § 3582(c)(2) that provides:
[When] a defendant . . . has been sentenced to a term of
imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing Commission
pursuant to 28 U.S.C. § 944(o), . . . the court may reduce the
term of imprisonment, after considering the factors set forth in
[18 U.S.C. § 3553(a)] to the extent that they are applicable, if
such a reduction is consistent with applicable policy statements
issued by the Sentencing Commission.
18 U.S.C. § 3582(c)(2).
Amendment 706 to the Sentencing Guidelines reduced by two levels the
base offense level for crack cocaine cases calculated under U.S.S.G. § 2D1.1(c).
U.S.S.G. App. C, Amend. 706. The amendment became effective on November 1,
2007. Id. The Sentencing Commission listed Amendment 706 in § 1B1.10(c) on
March 3, 2008, therefore making the amendment retroactively applicable. See
U.S.S.G. App. C, Amend. 713. However, a movant is not entitled to a resentencing
pursuant to Amendment 706 when the provisions of that amendment do not result
in a lower base offense level and guidelines range. United States v. James, 548
F.3d 983, 986 (11th Cir. 2008).
Here, the district court clearly erred in finding that Rivera was sentenced as a
career offender and he was sentenced to a mandatory life sentence. Nonetheless,
the district court did not abuse its discretion in denying Rivera’s § 3582 motion
3
because his guideline range was unaffected by Amendment 706 as his sentence
was not based on crack cocaine. Accordingly, we affirm.
AFFIRMED.
4 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/128261/ | 538 U.S. 929
BLANKSv.COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION.
No. 02-8539.
Supreme Court of United States.
March 24, 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/1868755/ | 277 F. Supp. 28 (1967)
SAN JUAN HOTEL CORPORATION, Plaintiff,
v.
Jacob LEFKOWITZ, Defendant.
Civ. 411-67.
United States District Court D. Puerto Rico.
December 4, 1967.
González, Jr., González-Oliver & Novak, San Juan, P. R., for plaintiff.
Benicio Sánchez-Castaño, San Juan, P. R., for defendant.
*29 ORDER
CANCIO, Chief Judge.
This is a diversity action in which Plaintiff, a Puerto Rico corporation, seeks to recover $27,000.69 from the Defendant, a citizen of New York.
Plaintiff's claim results from credit which it extended to the Defendant at a hotel operated by the Plaintiff in Puerto Rico. Part of the claim ($1,000.69) represents unpaid bills for lodging, food and liquor, and the balance represents credit extended to the Defendant at the hotel's gambling Casino.
Process was served on the Defendant pursuant to Rule 4.7(b) of the Rules of Civil Procedure of Puerto Rico by serving the summons and complaint on the Secretary of State and mailing copies thereof to the Defendant in New York, by certified mail, return receipt requested.
The Defendant moved to dismiss the complaint on the ground that the Court lacks personal jurisdiction over him because (1) his activities within Puerto Rico were not "business transactions" within the meaning of Rule 4.7(a) (1) and, if they were, then (2) the statute is unconstitutional insofar as it applies to a natural person. We disagree with both of these contentions.
Rule 4.7 (Puerto Rico's "long-arm statute") like similar legislation recently enacted by many of the States, results from a continual affirmation of the law of extra-territorial jurisdiction effected by the United States Supreme Court, culminating in International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945) and McGee v. International Life Insurance Co., 355 U.S. 220, 78 S. Ct. 199, 2 L. Ed. 2d 223 (1957). In International Shoe, the Court reformulated the test of due process governing the assertion of in-personam jurisdiction over non-residents by abandoning the former rigid tests of "residence", "presence" and "doing business," and substituting in their stead the flexible requirement that the Defendant need merely have certain minimum contact with the territory of the forum, such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. In McGee, the Court went on to establish that a single act having its impact within the territory of the forum, could satisfy the "minimum contact" requirement laid down in International Shoe.
The landmark cases create new opportunities for the State to lengthen the reach of their Courts' jurisdiction. They have done so, both by new legislation, and by broad judicial interpretation of these new statutes. The Illinois legislature led the way in 1955, and many others, including that of Puerto Rico, soon followed; and like the courts of more states, the courts of the Commonwealth have gone on to construe their long-arm legislation as a "single act" statute, i. e., to expand the jurisdiction of the courts to the fullest extent permissible under the Constitution, limited only by the requirements of due process. In Executive Air Services, Inc. v. Beech Aircraft Corporation, 254 F. Supp. 415, at p. 417 (D.C.P.R. 1966), this Court stated as follows:
"To obtain jurisdiction over a juridical person in the manner foreseen in Rule 4.7 of the Rules of Civil Procedure of Puerto Rico, it is enough that that person have the minimal contacts in Puerto Rico envisaged by the Supreme Court of the United States in International Shoe Co. v. State of Washington, (1945) 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95, and McGee v. International Life Insurance Co., (1957), 355 U.S. 220, 78 S. Ct. 199, 2 L. Ed. 2d 223."
There can be little doubt that the Defendant's activities in Puerto Rico out of which this action arises were more than sufficient to satisfy the criterion of "minimum contacts" necessary to bring the Defendant within the reach of Rule 4.7. The Defendant voluntarily came to the Commonwealth, ran up a hotel bill for food, liquor and lodging, accepted credit here and executed instruments evidencing his indebtedness here. Compare these activities with those of the defendants in Talcott Inter-American Corp. v. *30 Hilton Motors Corp., Civil No. 66-3543, wherein the defendants, residents of Florida, had no contacts with the Commonwealth other than to execute an instrument in Florida guaranteeing some commercial transactions which were to be carried out by others in Puerto Rico. This single act, done in Florida, was held to have been sufficient contact with Puerto Rico to sustain service under Rule 4.7. If the Talcott defendants could be reached by our long-arm statute, although they did not come here personally, did not sign here the instruments out of which their obligation arose, and did not incur in primary obligations here to repay money, then surely this defendant, who has done all these things, should be made to answer in the Courts of the Commonwealth.
Having determined in Executive Air Services that Rule 4.7 is intended to be as broad as the Constitution permits, we must now decline Defendant's invitation to emasculate the statute by narrowly limiting the term "business transaction" to include only commercial transactions for profit. Courts of other jurisdictions have generally rejected this argument. See e. g. Kochenthal v. Kochental, Oct. 3, 1967, 28 A.D.2d 117, 282 N.Y.S.2d 36 (App.Div.2d Dept.); Van Wagenberg v. Van Wagenberg, 241 Md. 154, 215 A.2d 812 (1965). And in cases involving the enforcement of a debt, the loan transaction is considered a "transaction of business" without reference to the purpose for which the proceeds were advanced. Hamilton National Bank of Chattanooga v. Russell, 261 F. Supp. 145 (E.D.Tenn. 1966). Accordingly, we hold that a nonresident who accepts credit here "carries out business transactions within Puerto Rico" within the meaning of Rule 4.7(a) (1) of the Rules of Civil Procedure of Puerto Rico, whether or not such credit was accepted in connection with matters of a commercial nature.
The Defendant attempts to distinguish International Shoe and McGee on the ground that the defendants in each of those cases were corporations, rather than natural persons. This, we find to be a distinction without a difference. Where jurisdiction is based upon a defendant's activities within, or contacts with, the territory of the forum, we fail to see a logical reason why jurisdiction should not attach to a natural person as it would to a corporation ultimating identical activities within that territory. Other courts have applied the doctrine of International Shoe and McGee to natural persons as well as to corporations, without distinction. Sugg v. Hendrix, 142 F.2d 740 (5th Cir. 1944); Hamilton National Bank of Chattanooga v. Russell, supra; Snow v. Clark, 263 F. Supp. 66 (W.D.Va.1967); St. Clair v. Righter, 250 F. Supp. 148 (W.D.Va.1966); Mulhern v. Gerold, 116 F. Supp. 22 (D.C. Mass.1953); Golberg v. Dean, 200 F. Supp. 161 (W.D.Tenn.1961); American Cas. Co. v. Harrison, 96 Supp. 537, 551 (W.D.Ark.1951); Nelson v. Miller, 11 Ill. 2d 378, 143 N.E.2d 673 (1957); Sunday v. Donovan, 16 Ill.App.2d 116, 147 N.E.2d 401 (1958); Lewis Mfg. Co. v. Superior Court, 140 Cal. App. 2d 245, 295 P.2d 145 (1956); Wm. E. Strasser Construction Corp. v. Linn, 97 So. 2d 458 (Fla.1957); State ex rel. Weber v. Register, 67 So. 2d 619 (Fla.1953).
Although we need not reach this issue for the purpose of this decision, the Defendant's motion must be denied on another ground as well. It appears that the Defendant executed certain instruments called "Markers" to evidence his indebtedness in the gambling Casino. Each of these "Markers" bears a printed legend which provides that the borrower submits to the jurisdiction of the Courts of the Commonwealth and that the borrower consents to service of process on him by mail outside the territorial limits of the Commonwealth. There can be no doubt that such a submission and consent is effective to confer jurisdiction when service is made in the manner agreed to. National Equipment Rental, Ltd. v. Szukhent, 375 U.S. 311, 84 S. Ct. 411, 11 L. Ed. 2d 354 (1964); National Equipment Rental, Ltd. v. Reagin, 338 F.2d 759 (2d Cir. 1964); Gilbert v. Burnstine, 255 *31 N.Y. 348, 174 N.E. 706, 73 A.L.R. 1453 (1931).
The motion to dismiss the complaint is therefore DENIED in all respects and defendant shall submit his answer within 20 days from the date of entry of this Order. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4002518/ | The defendant was charged with the crime of grand larceny by information alleging the offense to have been committed the 13thday of May, 1935. On December 2, 1935, he pleaded guilty to the charge. He made a motion in arrest of judgment on the ground that, since Rem. Rev. Stat., § 2281 [P.C. *Page 564
§ 8716], (Laws of 1909, chapter 249, § 29, p. 897) providing for indeterminate sentences, was specifically repealed by § 9, chapter 114, Laws of 1935, p. 319, and since § 2, p. 309 (Rem. Rev. Stat. (Sup.), § 10249-2 [P.C. § 4503-32]), of the latter act is ex post facto with respect to the crime charged in the information, there is no valid subsisting law under which judgment and sentence can be entered against him. Overruling the motion in arrest of judgment, the court entered judgment sentencing the defendant to a "term of not more than fifteen years" in the state penitentiary. Defendant appeals, assigning error in the denial of his motion in arrest of judgment.
[1] Under the facts of this case, it is apparent that § 2, chapter 114, Laws of 1935, p. 309, is ex post facto, and that the penalty provided therein cannot be imposed upon defendant.Lindsey v. State, 301 U.S. 397, 57 S. Ct. 787.
[2] As we have observed, the court fixed the maximum term at fifteen years. This judgment and sentence conforms explicitly with the terms of Rem. Rev. Stat., § 2605 [P.C. § 8948] (Laws 1909, chapter 249, § 353, p. 998). That section defines grand larceny and fixes the penalty "by imprisonment in the state penitentiary for not more than fifteen years." The judgment and sentence did not conform, however, with the terms of Rem. Rev. Stat., § 2281, which provides that the court shall fix the minimum as well as the maximum of the term to be served.
The question now to be determined is what effect the specific repeal of Rem. Rev. Stat., § 2281, contained in chapter 114, Laws of 1935, has with respect to crimes of grand larceny committedprior to the effective date of the latter act. The answer is found in Rem. Rev. Stat., § 2006 [P.C. § 9198], which provides: *Page 565
"No offense committed and no penalty or forfeiture incurred previous to the time when any statutory provision shall be repealed, whether such repeal be express or implied, shall be affected by such repeal, unless a contrary intention is expressly declared in the repealing act, and no prosecution for any offense, or for the recovery of any penalty or forfeiture, pending at the time any statutory provision shall be repealed, whether such repeal be express or implied, shall be affected by such repeal, but the same shall proceed in all respects, as if such provision had not been repealed, unless a contrary intention is expressly declared in the repealing act. Whenever any criminal or penal statute shall be amended or repealed, all offenses committed, or penalties or forfeitures incurred while it was in force shall be punished or enforced as if it were in force, notwithstanding such amendment or repeal, unless a contrary intention is expressly declared in the amendatory or repealing act, and every such amendatory or repealing statute shall be so construed as to save all criminal and penal proceedings, and proceedings to recover forfeitures, pending at the time of its enactment, unless a contrary intention is expressly declared therein."
This section has been repeatedly held to constitute a valid and sufficient saving clause as to crimes committed prior to the effective date of an act repealing former criminal statutes.State v. Fair, 35 Wash. 127, 76 P. 731, 102 Am. St. 897;State v. Ames, 47 Wash. 328, 92 P. 137; State v. Hanover,55 Wash. 403, 104 P. 624, 107 P. 388; State v. Newcomb,58 Wash. 414, 109 P. 355; State v. Lorenzy, 59 Wash. 308,109 P. 1064, Ann. Cas. 1912B, 153. Consequently, with respect to crimes of grand larceny committed prior to the effective date of chapter 114, Laws of 1935, Rem. Rev. Stat., §§ 2281 and 2605, are valid and subsisting laws under which appellant is amenable for the offense to which he pleaded guilty.
As has been noted, the judgment and sentence imposed *Page 566
upon appellant fixed only a maximum term. It should also have provided for a minimum term. The judgment and sentence is set aside, and the cause is remanded, with directions to enter judgment and sentence fixing the minimum and maximum of the term to be served by appellant in accordance with the provisions of Rem. Rev. Stat., §§ 2281 and 2605.
ROBINSON, MILLARD, GERAGHTY, and MAIN, JJ., concur. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4002523/ | The statutes cited by the majority declare the public policy of this state which, in my view, the opinion obviously contravenes. The statutes clearly disclose the legislative intent that the business of the county shall be conducted, and that the offices of the county shall be maintained, at the county *Page 358
seat. While a prosecuting attorney in his private practice of the law may maintain a private office in as many places as he deems advisable, it is unthinkable that he may be permitted, as the majority opinion in effect holds, to do so at the expense of the taxpayers.
BLAKE and MALLERY, JJ., concur with MILLARD, J. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3444829/ | Affirming.
Kathleen Allen, widow of C.B. Allen, deceased, appeals from a judgment dividing the $750 exemption equally between her and the two infant children of the decedent by a former wife.
The facts are: The decedent, C.B. Allen, married appellant about three months before his death. At that time she was sixteen, and is now seventeen years of age. At the time of his marriage he had two infant children, one Doris Allen, now five years of age, who lived and now lives with her guardian and maternal grandfather, George Browning, and the other *Page 763
C.B. Allen, Jr., a little over two years of age, who now lives with his paternal grandfather, J.E. Allen, and has lived with him since he was about four months of age. Appellant now lives with her parents, at Buckner, Oldham county, and neither of the infants has ever lived with her. Her parents, with whom she resides, live in a house containing not exceeding five rooms. Her father's two sons also occupy the house. Appellant is willing to take the infants to her father's house and to care for and rear them, and her parents are willing for this to be done. The grandparents with whom the infants reside are unwilling to give them up. They are between forty and forty-five years of age and about the same age of appellant's parents. Appellant has no estate of her own except such as she will receive in this action.
Appellant takes the position that the facts bring the case within the rule announced in Crain v. West, 191 Ky. 1,229 S.W. 51, 52, that, under the statute, section 1403, subd. 5, Kentucky. Statutes, the exempted property amounting to $750, required to be set apart to the widow and infant children cannot be divided between her and the children so long as she maintains a home to which the children have access, and are permitted to use and enjoy the property, though without her fault they do not live with her, and attention is called to the statement of the court that in only two instances had a division or partition of the exempted property between a widow and her children been upheld; one where the mother was confined in prison, Eversole v. Eversole, 169 Ky. 793, 185 S.W. 487, L.R.A. 1916E, 593, and the other, where the widow had ceased to be a housekeeper and the children were involuntarily compelled to find homes elsewhere, Landrum v. Landrum, 187 Ky. 196,218 S.W. 717. It is true that the court made the observation concerning the above cases, and announced the rule referred to, but in the same connection it added the following:
"But, where the unity of the family, from no fault of the children, can be no longer maintained, equity will assert itself to secure the rights of the children in the property."
Then, too, it must not be overlooked that in that case the widow maintained a home to which the children *Page 764
had access, and that the children who were old enough to make a choice in the matter preferred to live elsewhere. In the case under consideration, the situation is different. Appellant herself is only seventeen years of age. The infants have never lived with appellant, but have always lived with their own grandparents, and are too young to choose a home for themselves. Indeed, if the court were called upon to determine their custody, it would award them to their own grandparents in preference to their stepmother and step-grandparents. Through no fault of the infants they must stay where they are. Not only so, but appellant is not maintaining a separate home, but is herself living in the small home of her parents, together with four others. In view of these circumstances, we are forced to conclude that the case is one where the unity of the family from no fault of the children can no longer be maintained, and there should be a division of the exempted property.
Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1001996/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 00-1662
In Re: JOHN D. GOELZ,
Petitioner.
On Petition for Writ of Praecipe.
(CA-99-413-3-MU)
Submitted: June 27, 2000 Decided: July 10, 2000
Before LUTTIG and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Petition denied by unpublished per curiam opinion.
John D. Goelz, Petitioner Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
John D. Goelz brought this action seeking a writ of praecipe,
an injunction, and a restraining order barring the district court
from proceeding in his contract action that had been removed to
federal court from state court. Essentially, Goelz is seeking man-
damus relief. As explained in the order denying Goelz’s earlier
mandamus petition challenging the district court’s jurisdiction
over his contract case, mandamus relief is not available because
Goelz has another remedy, namely to appeal any unfavorable final
district court decision.* We therefore deny relief. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
PETITION DENIED
*
The district court denied Goelz’s motion to remand. See
Caterpillar Inc. v. Lewis, 519 U.S. 61, 74 (1996) (by timely filing
motion for remand, litigant “did all that was required to preserve
his objection to remand”).
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3435687/ | [1] The record before us is somewhat unsatisfactory. The record was not settled by the trial court nor was it settled by stipulation of counsel. A certificate of counsel for appellant, similar to that required for an abstract of the record prior to the adoption of Rule 340 of the Rules of Civil Procedure, is set forth. This does not constitute compliance with said Rule 340. However, the case has been fully argued and submitted without any objection by appellee or his counsel. We do not like to condone such practice, but, in the absence of any complaint by appellee, we assume that counsel on both sides consider that the record that is before us is correct. Unfortunately, it does not give a clear picture of the facts upon which a decision should be made.
In the pleadings it is asserted that Cecil and Nada Axline were married December 6, 1929, were divorced April 21, 1943, and remarried in September 1943. While the testimony does not establish these facts it indicates that they may be substantially correct. In August 1945, Cecil commenced an action for divorce. The ground stated was that Nada had been guilty of adultery with one Ralph Cornwall. An amendment to the petition was filed striking out the charge of adultery and substituting therefor the charge of cruel and inhuman treatment. On September 10, 1945, Nada not having appeared and default being entered against her, the court entered a decree of divorce in favor of Cecil. Pursuant to a stipulation signed by Cecil and Nada the court awarded Cecil the homestead and Nada the household goods and kitchen furniture and awarded the custody of their three sons — William, aged thirteen, Duane, aged ten, and Walter, aged four — to Cecil with a provision as stipulated that "as long as plaintiff approves the care given the children by the defendant, the defendant may care for *Page 1053
them for the plaintiff at a rate of compensation mutually agreed upon by the parties."
On January 19, 1946, four months after the decree was entered, Nada filed an application to modify the decree, which asserted that Cecil had neglected to provide any care or support for the children and had refused to surrender their custody to her and asked that she be given their custody and a reasonable amount for their support. Resistance was filed thereto by Cecil.
Nada testified that she and her children live with Ralph Cornwall and his son; Cornwall pays her a weekly sum for himself and his boy and she does about four washings a week which average about $1.50 to $2; Cecil has not contributed anything for the support of the children since the decree was entered; "He said that I had them now and I could support and take care of them"; at the time of the trial William and Walter were with Nada and Duane was with Cecil's sister; William has a paper route which nets him $4.50 to $5 per week. As to Duane, Nada testified:
"I would rather his father keep him, because he has told him that he doesn't have to mind me and he has put him up against me, so that he doesn't mind me, and I don't think it is fair either. I have trouble with him and I would rather his father keep him. If his father doesn't, I will take him and do the best I can with him."
Cecil testified that in September 1945, when the divorce was granted, Nada was receiving $120 per month allotment from the government. Cecil was then in the Army. Later he was discharged and, at the time of this bearing, was averaging $30 per week working at Rath Packing Company in Waterloo. Since the decree he has bought Duane and Walter some clothes and has given his sons some small amounts of money. He admitted that he had given Nada no money. He refused to do so because she was living with Cornwall and was not married to him. There is no evidence what relations exist between Nada and Cornwall. Except for Cecil's statement as to his suspicions the record is silent. On examination by the court, Cecil testified: *Page 1054
"Q. She has had the children since the divorce, have you ever talked over anything with her about what you should pay for the support of the children? * * * A. I asked her what kind of agreement would you like to make, and * * * she says, `What do you think about it?' and I says, `It's up to you,' and I says, `I don't want you to take care of the children if you aren't married and have them living right here,' and she just turned around and walked off into the house. Q. You knew if she kept the children you were to pay her something for it, didn't you? A. Yes sir. Q. And she has borne all of the expense, shelter and clothing and nursing, and all that, and ever since the divorce, hasn't she? A. Well, two of them, yes. * * * Q. What do you get at Rath's since you got out of the army? A. It averaged around $30 a week. I have the stubs here with me. Q. Around thirty? A. Yes sir. Q. Are you dissatisfied to have these two children with her? A. I am as long as they are living that way. Q. If they would get married, it would be all right? A. Yes sir."
Cecil is living at Waterloo with his father and mother. His proposal to the court was that William and Walter live with Cecil's parents at Waterloo, that he had talked it over with his mother and she approved it. Cecil's mother testified that she was willing to take care of the children without expectation of compensation.
In dismissing the proceedings, the trial court determined as follows:
"That there is no such substantial change in the conditions of the parties since the rendering of the said decree, and no circumstances that would justify modification of such decree; and the court finds as a conclusion of law that the original decree is conclusive upon the parties; that the power to grant a modification is not a power to grant a new trial or try the same issues, and that unless there is a material change in the conditions and circumstances of the parties the court has no right to modify the decree."
[2] The appellant contends that the trial court erred in refusing to modify the decree because by its terms it is indefinite and unenforceable and in finding as a matter of law *Page 1055
that there was no such substantial change in the circumstances of the parties since the entry of the decree of divorce that would justify modification thereof. We find that there is merit in such contention.
The proceedings herein are had pursuant to the provisions of section 598.14, Code, 1946 (section 10481, Code, 1939), which provides as follows:
"When a divorce is decreed, the court may make such order in relation to the children, property, parties, and the maintenance of the parties as shall be right. Subsequent changes may be made by it in these respects when circumstances render them expedient."
One of the decisions of this court construing said statute, upon which the trial court relied, is that of Newburn v. Newburn,210 Iowa 639, 641, 231 N.W. 389, 390, wherein we stated:
"The statute, Section 10481, authorizes the court, upon proper application, after a divorce decree has been granted, to modify the same, upon proof of substantial changes in the circumstances of the parties which render such modification expedient. This statute has been many times considered and applied by this court. It has always been held that the original decree is conclusive upon the parties as to the then circumstances of the parties, and that the power to grant a modification in the decree is not a power to grant a new trial, or to retry the same issues, but only to adapt the decree to the changed conditions of the parties. [Citing cases.]"
Another decision upon which the trial court relied is that of Toney v. Toney, 213 Iowa 398, 400, 239 N.W. 21, 22, wherein we stated:
"It is also the rule of Iowa that facts and circumstances must be shown by the party seeking a modification of a decree awarding alimony that will warrant the court under equitable principles to justify a finding that there has been a change in circumstances such as to make a modification equitable under all the facts and circumstances of the case. Morrison v. Morrison, *Page 1056 208 Iowa 1384. See, also, McNary v. McNary, 206 Iowa 942."
The principles set forth in the foregoing quotations are well established by repeated pronouncements of this court, but, in applying them, there are factors presented by the record herein which should have been given more consideration than they received from the learned trial court.
In Slattery v. Slattery, 139 Iowa 419, 422, 116 N.W. 608, 609, in discussing the effect of the court's approval to a stipulation of the parties in a divorce decree, we stated:
"We quite agree with counsel for appellant that a husband and wife, involved in divorce proceedings, may arrange between themselves for the disposition of their property interests and the custody of their children; and effect will be given by the court to a stipulation, if entered into in good faith and the provisions thereof are found to be fair and reasonable. This we have frequently said. Blake v. Blake, 7 Iowa, 46; Martin v. Martin, 65 Iowa 255; White v. White, 75 Iowa, 218. But parents cannot, by contract entered into between themselves, put one or the other beyond all responsibility for the support and maintenance of their offspring. Irrespective of any rights which might arise from such a contract, personal to the immediate parties, the children have rights which must be respected by their parents; and the courts, in the interests of the children and of the general public, will enforce such rights whenever it becomes necessary to do so. Accordingly, where the custody and maintenance of children is provided for by contract, it is within the power of the court, acting in authority of the statute, to set aside the contract and to decree such provisions in lieu thereof as the interests of the children shall seem to demand."
In Mitvalsky v. Mitvalsky, 191 Iowa 8, 11, 179 N.W. 520, 522, we stated:
"The two children of the parties were, at the time of the trial, two boys, aged 9 and 5, respectively. Their custody was awarded the mother, and with it went an allowance of $15 a month for the support of each child. In a sense, the *Page 1057
defendant confesses that this is inadequate, because he asserts that he is willing on his own motion to provide more. He does not seem to have done so, to any substantial extent at least. And he is in court resisting a larger allowance. At any rate, it should not be a matter of grace in the father to provide sufficiently for the decent maintenance of his children. He has not been divorced from his children. * * * We are unable to see why the fact, if it be one, that the allowance for the children was, in effect, a consent decree, opposes our conclusion. The necessity for changing a consented-to allowance may be as imperative as if the allowance were wholly the act of the court."
We think that the effect of the ruling of the learned trial court herein is to make the support of these children by their father too much a matter of grace on his part. The decree did not end his obligation to provide for their care. The record indicates that the children will be taken care of in one way or another but there is no specific provision thereon. In view of the situation that has developed, we are of the opinion that specific provision should be made thereon.
We have held repeatedly that, in cases of this kind, the best interests of the children are paramount. Freese v. Freese,237 Iowa 451, 459, 22 N.W.2d 242, 246, and cases cited. The decree of divorce herein granted custody to the father and contemplated that the children would be cared for by the mother at a rate of compensation to be mutually agreed upon. Cecil refuses to pay anything unless Nada marries Cornwall. If that occurs, then he is willing for her to care for them and apparently would consider making some contribution therefor. But unless the marriage takes place Cecil will not contribute to the support of the children. If that is not satisfactory to Nada, then Cecil will let his mother care for the children, which she states she will do without expectation of compensation.
The apparent indifference displayed by Cecil toward his children is difficult to understand. The record is meager as to what was the situation at the time that the decree was entered. About all that is shown is that the court contemplated *Page 1058
that Nada would care for them as long as Cecil approved and that Cecil would pay a reasonable amount of compensation to Nada. It now appears that Cecil intends to delegate the custody to his mother, and perhaps his sister, but there is no specific arrangement as to what will be done nor does Cecil assume any specific obligation toward his children. He impliedly confesses that he cannot care for them himself. Such being the case, we are of the opinion that the court should have clarified the decree and made specific provision for their care. See Dunham v. Dunham,189 Iowa 802, 178 N.W. 551.
While this cause is triable de novo here, the record is too meager to enable us to determine what should be for the best interests of the children. Accordingly, the order appealed from is reversed and the cause is remanded with directions that further proceedings be had to enable the court to determine what is for the best interests of these children and that specific provision be made for their care and custody and we suggest the trial court consider the question of a temporary allowance for the support of the children pending further proceedings. — Reversed and remanded with directions.
The foregoing opinion, written by Justice MILLER before his retirement from the court, is adopted as the opinion of the COURT.
HAYS, J., takes no part. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2822410/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MELISSA R. BOYD,
Appellant,
v.
TIMOTHY M. BOYD,
Appellee.
Nos. 4D14-198 and 4D14-1876
[July 1, 2015]
Consolidated appeals from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Renee Goldenberg, Judge; L.T. Case
No. 01-21063 (36).
Robert D. Burgs of Robert D. Burgs, P.A., Plantation, for appellant.
Catherine L. Roselli, Fort Lauderdale, for appellee.
CIKLIN, C.J.
In this post-dissolution case, the former wife appeals the trial court’s
order adopting a general magistrate’s report and recommendation. She
raises multiple grounds for reversal, one of which we find has merit. We
hold that the court erred in not establishing a child support arrearage
amount due and payable by the former husband.
The parties were divorced in 2002. The final judgment provided that
the former husband would pay $751.82 a month in child support for the
parties’ daughter. In 2012, the former wife petitioned for an upward
modification of child support based on an alleged increase in the former
husband’s income.
At trial, the parties offered evidence regarding the former husband’s
child support payments during the period the child was attending private
school. The former wife testified that the former husband offered to pay
$500 a month toward the child’s private school tuition, which cost
approximately $600 a month. The arrearage affidavit she offered into
evidence reflected that the former husband made no monthly payments
during the period of time the child attended private school. However, at
a deposition, the transcript of which was entered into evidence, the
former wife explained that the arrearage affidavit did not include any
payments until May 2003 because, until then, the former husband paid
the child’s school directly so she was not aware as to the specific amount
paid. The former husband testified that he could not remember exactly
what he paid, but he believed it was “$650, $680, $690, somewhere in
that range” each month for the sixteen-month period the child attended
private school.
The parties also offered evidence regarding the child support
payments made after the child left private school and entered the public
education system. The former husband testified he paid $500 a month
in child support. The former wife offered a record of payments she
created using bank records. That document reflected that the former
husband made some monthly payments, but he did not pay every month
and he did not always pay $500. The former wife calculated that the
former husband owed a total of $55,917.48 as of January 5, 2011.
The general magistrate did not set an arrearage amount and instead
made the following findings in her report:
Here, based upon the credible evidence at the hearing, along
with [the former wife’s] sworn testimony offered at her
deposition taken on December 1, 2011, the child support
was not paid through the State Depository and, by
agreement of the parties, was paid by [the former husband]
directly to Sheridan Christian School for tuition where the
Parties’ daughter attended school until she began attending
public elementary school. The undersigned does not find
[the former wife’s] testimony that she was unsure whether
[the former husband] made consistent payments to the
private school to be credible. As such, [the former wife] has
failed to show that the child support payments set forth in
the affidavit were not paid by [the former husband]; and
thus, is not entitled to civil contempt or enforcement on this
issue. Likewise, there is no credible evidence that the
arrearage amount set forth in the affidavit is owed by [the
former husband].
In the former wife’s written exceptions to the report, she objected to
the magistrate’s failure to establish an arrearage amount. After a
hearing on the exceptions, the trial court denied the former wife’s
exceptions and approved the report and recommendations issued by the
magistrate.
2
On appeal, the former wife argues that the trial court erred in not
setting an arrearage amount. She claims the parties stipulated to a
maximum amount of arrearages and agreed that the former husband
could seek credits against that amount for payments he made for the
child’s school tuition years ago.
“A trial court’s decision to accept or reject a magistrate’s conclusions
is . . . reviewed for an abuse of discretion.” Kozell v. Kozell, 142 So. 3d
891, 893 (Fla. 4th DCA 2014) (citation omitted). ‘“A magistrate’s findings
are subject to being set aside by the trial court when they are clearly
erroneous or the magistrate misconceived the legal effect of the
evidence.’” Id. (quoting McNamara v. McNamara, 988 So. 2d 1255, 1258
(Fla. 5th DCA 2008)).
We find that the record does not support the former wife’s claim that
the parties stipulated to an amount of arrearages. The trial transcript
reflects that there were discussions about a stipulation, but the parties
did not clearly agree to a specified amount of arrearages that would serve
as a starting point against which credits could be applied. Nonetheless,
the trial court erred in approving the general magistrate’s report and
recommendation where it is clear that the parties expected the
magistrate to set an arrearage amount (and where there is sufficient
evidence available to set the amount)—but yet failed to do so. We
remand with two issues in mind.
First, an arrearage amount should have been calculated for the period
the child attended private school. We do not disturb the magistrate’s
credibility determination, adopted by the trial court, with respect to
whether the former husband made child support payments while the
child attended private school. However, the former husband’s own
testimony, found credible and relied on by the magistrate, established
that he did not pay the full court-ordered monthly amount during that
sixteen-month period. Where a party concedes that not all court-ordered
child support was paid, the trial court errs in failing to resolve the
amount of arrearages. See Bryer v. Bryer, 704 So. 2d 616, 617-18 (Fla.
4th DCA 1997).
Second, the magistrate did not make any credibility determination
with respect to testimony related to child support payments for the
period the child attended public school. This is the time period that
comprises the bulk of the arrearage amount. The magistrate essentially
found that it was not necessary to set an arrearage amount because the
former wife did not establish the amount she claimed in her affidavit was
3
actually and specifically owed. Again, the former husband’s testimony
established that he did not pay the full court-ordered monthly amount.
Thus, it was a stipulated fact that there was an accumulated arrearage
but the amount was not addressed by the magistrate or the trial court.
The parties provided conflicting evidence on this issue, and the
magistrate or the trial court was required to resolve the conflict in
evidence and calculate an arrearage amount. Accordingly, the trial court
erred when it adopted the report and recommendation and therefore we
reverse and remand for the trial court to resolve the issue of arrearages.
Reversed and remanded with directions.
FORST and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
4 | 01-03-2023 | 07-30-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1028803/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-2109
In Re: MICHAEL A. SMITH, SR.,
Petitioner.
On Petition for Writ of Habeas Corpus.
(3:96-cr-00058-jpj-l)
Submitted: April 8, 2009 Decided: May 4, 2009
Before WILKINSON, TRAXLER, and SHEDD, Circuit Judges.
Petition dismissed by unpublished per curiam opinion.
Michael A. Smith, Sr., Petitioner Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael A. Smith, Sr., filed a petition for an
original writ of habeas corpus challenging his 1997 conviction
for possession with intent to distribute cocaine base. This
court ordinarily declines to entertain original habeas petitions
filed under 28 U.S.C. § 2241 (2006), and this case provides no
reason to depart from the general rule. Moreover, we find that
the interests of justice would not be served by transferring the
case to the district court. * See 28 U.S.C. § 1631 (2006); Fed.
R. App. P. 22(a). Accordingly, we dismiss the petition. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
PETITION DISMISSED
*
The district court has previously denied Smith’s motion
for post-conviction relief filed pursuant to 28 U.S.C. § 2255
(West Supp. 2008), see United States v. Smith, No. 7:99-cv-
00135-jct-gc (W.D. Va. Dec. 14, 1999). On appeal, this court
denied a certificate of appealability and dismissed. United
States v. Smith, No. 00-6128, 2000 WL 429934 (4th Cir. Apr. 21,
2000) (unpublished). Should Smith wish to file a second or
successive § 2255 motion in the district court, he must seek
authorization from this court to do so, 28 U.S.C. § 2244(b)(3)
(2006).
2 | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/997501/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-7204
JASON L. BLACK,
Petitioner - Appellant,
versus
WARDEN, Buckingham Correctional Center,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Albert V. Bryan, Jr., Senior
District Judge. (CA-98-505-AM)
Submitted: December 17, 1998 Decided: January 6, 1999
Before WILKINS, NIEMEYER, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Jason L. Black, Appellant Pro Se. Daniel John Munroe, OFFICE OF
THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Jason Black appeals the district court’s order denying relief
on his petition filed under 28 U.S.C.A. § 2254 (West 1994 & Supp.
1998). We have reviewed the record and the district court’s
opinion and find no reversible error. Although we agree with Black
that the district court erroneously found that he had failed to
exhaust his claim that he was denied a fair trial based on the
trial court’s denials of his motions for a mistrial, see Castille
v. Peoples, 489 U.S. 346, 350 (1989), we find that the state
court’s adjudication of this claim did not result in a decision
that involved an unreasonable application of federal law. See 28
U.S.C.A. § 2254 (West 1994 & Supp. 1998). Accordingly, we deny a
certificate of appealability and dismiss the appeal on the rea-
soning of the district court. See Black v. Warden, No. CA-98-505-
AM (E.D. Va. June 16, 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
*
Although the district court’s order is marked as “filed” on
June 15, 1998, the district court’s records show that it was
entered on the docket sheet on June 16, 1998. Under Rule 58 and
79(a) of the Federal Rules of Civil Procedure, it is the date the
order was entered on the docket sheet that we take as the effective
date of the district court’s decision. See Wilson v. Murray, 806
F.2d 1232, 1234-35 (4th Cir. 1986).
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4224037/ | Court of Appeals
of the State of Georgia
ATLANTA, November 28, 2017
The Court of Appeals hereby passes the following order
A18I0074. TRACY LLEWELLYN v. JASON BRYANT et al..
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:
16STCV055
Court of Appeals of the State of Georgia
Clerk's Office, Atlanta, November 28, 2017.
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 | 11-28-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/3453051/ | Affirming in part and reversing in part.
In March, 1921, the appellant, who was then indebted to the appellee, Pikeville Grocery Company, in the sum of $472.89, which indebtedness he later reduced to the sum of $399.89, executed to it a mortgage on a certain piece of real estate which the pleadings herein concede was his homestead. The appellant's wife did not join in this mortgage, nor did she ever release or waive the right of homestead exemption. In June, 1921, the appellant was duly adjudicated a bankrupt in the federal courts and thereafter in due course of time received his discharge in bankruptcy. It is averred in the appellee's pleadings, which averment is not denied by the appellant, that the latter after his adjudication and discharge in bankruptcy again promised to pay the Pikeville Grocery Company the indebtedness which he owed it. This suit was later brought to collect that indebtedness and to foreclose the mortgage securing it. The lower court granted the appellee the relief it sought, and from that judgment this appeal is prayed. Of course, in so far as the court gave a personal judgment against the appellant for the debt sued on, the judgment will be affirmed. The appellant's only defense to this indebtedness was his discharge in bankruptcy, but as he does not deny that after that discharge be again promised to pay the appellee what he owed it, such discharge can no longer shield him.
However, in so far as the judgment adjudged the appellee a mortgage lien on the property in question it will have to be reversed. Section 1706 of the Statutes provides:
"No mortgage, release or waiver of such exemption (homestead) shall be valid unless the same be in writing, subscribed by the defendant and his wife, *Page 751
and acknowledged and recorded in the same manner as conveyances of real estate; and such exemption in favor of an execution debtor, or one against whom judgment has been rendered, shall continue after his death for the benefit of his widow and children, but shall be estimated in allotting dower."
In the case of Mattingly's Adm'r v. Hazel, 117 Ky. 397,78 S.W. 178, 25 Ky. Law Rep. 1483, this section of the Statutes was construed. There a mortgage was executed by a married man on land owned and occupied by him as a homestead. His wife did not join in the mortgage. Thereafter another mortgage was put on the property in question by the owner, in which mortgage his wife did join. Later a question arose as to the priority of liens between these two mortgages, and it was held that the mortgage which was given secondly in point of time was the only one which constituted a lien on the property, since the first mortgage was void under section 1706 of the Statutes because it was not signed and acknowledged by the wife. The mortgage of the homestead here in question was not signed or acknowledged by appellant's wife, and she has never waived the right of homestead in this property, for which reason the mortgage was void under the provisions of the statute quoted.
The judgment of the lower court in so far as it awarded a personal judgment against the appellant is affirmed, but in so far as it awarded a lien on the property in question it is reversed, with instructions to dismiss the appellee's petition in so far as it seeks to assert a lien by virtue of the mortgage set up in its pleadings. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1869250/ | 589 F. Supp. 95 (1984)
Buford HORTON and Laretta Horton, Husband and Wife, and Phillip Allen Roberson, By and Through His Guardians and Next Friends, Buford Horton and Laretta Horton; Jamie A. Williams and Rhonda Williams, By and Through Janie Williams, Next Friend, Plaintiffs,
v.
MARSHALL PUBLIC SCHOOLS, Herbert Cleek, Individually and in His Official Capacity as Superintendent of Marshall Public Schools; Spence Holder, Individually and in His Capacity as Principal of Marshall Public Schools; Coy England, Cecil Ray Jennings, Jr., Bob Blare, James Hubbard, and Melvin Englands, Individually and in their Respective Official Capacities as Members and Directors of the School Board of the Marshall School District, Defendants.
Civ. No. 83-3038.
United States District Court, W.D. Arkansas, Harrison Division.
March 8, 1984.
Filed June 1, 1984.
*96 Marcia McIvor, Ozark Legal Services, Fayetteville, Ark., Margaret Reger, Ozark Legal Services, Harrison, Ark., for plaintiffs.
W. Paul Blume, Little Rock, Ark., for defendants.
MEMORANDUM OPINION
H. FRANKLIN WATERS, Chief Judge.
This action arises out of the efforts of Phillip Roberson and Rhonda Williams to be enrolled as students in the Marshall Public Schools. On about September 13, 1982, Phillip Roberson, who was 17 years old, was brought by his father to Marshall, Arkansas, to live with his mother, Barbara Roberson, and his uncle and aunt, Buford and Laretta Horton, all residents of the Marshall School District. Prior to this, Phillip had lived with his father in Springfield, Missouri. When the father began to experience marital difficulties, he brought Phillip to Marshall to live with Ms. Roberson. Ms. Roberson had moved to Marshall, where she owned property, the previous July; she had found work and registered to vote in Marshall. Phillip enrolled in the Marshall Public Schools and attended regularly, making good grades and causing no problems.
Sometime after Phillip moved to Marshall, Ms. Roberson left Marshall. Phillip remained with the Hortons. On about January 4, 1983, Phillip was called to the office of the principal of Marshall High School, Mr. Spence Holder. Mr. Holder informed Phillip that he could only attend Marshall High School if he lived with a parent or *97 legal guardian living in Marshall. No written notice of any potential or impending dismissal was ever sent to Phillip, his parents, or his aunt and uncle. On January 7, 1983, Phillip's name was removed from the rolls of Marshall High School. Following the removal of his name from school rolls, Phillip and members of his family made several attempts to obtain permission for Phillip to be readmitted. Mrs. Horton did contact Ozark Legal Services and initiated guardianship proceedings. Phillip was denied readmission to Marshall High School until February 11, 1983, when he was allowed to return to school on the condition that Mr. Horton be named legal guardian of Phillip. Subsequent to returning to school, Phillip was advised that because he had missed more than 15 class periods in each subject during the spring 1983 semester, school policy required that he automatically receive failing grades in all of his courses for the semester. On April 20, 1983, Mr. and Mrs. Horton and Phillip filed this action under 42 U.S.C. § 1983 requesting the court to issue a preliminary injunction requiring Marshall Public Schools to reinstate Phillip as a student in good standing and to permit him to make up any work missed during his absence. (Subsequent to plaintiffs filing suit, an agreement was reached with the school district allowing Phillip to make up the time and the work he had missed during his absence.) Plaintiffs also request that the court issue a declaratory judgment that the removal of Phillip from Marshall Public Schools rolls violated the due Process and the Equal Protection clauses of the Fourteenth Amendment to the United States Constitution and that ARK.STAT.ANN. § 80-1501, as amended by Act 828 of 1981, is unconstitutional. Plaintiffs also requested damages.
On April 26, 1983, Janie Ann Williams and Rhonda Williams sought permission from the court to intervene in this action. Rhonda, a ninth grader, had been sent on about April 4, 1983, by her mother to live in Marshall with her uncle and aunt, Leo G. and Janie Ann Williams, because of domestic problems at home. On April 6, Mrs. Williams took Rhonda to be enrolled in the Marshall Public Schools, but was told by Mr. Holder that Rhonda could not be enrolled unless Mrs. Williams obtained letters of guardianship. Mrs. Williams investigated the possibility of obtaining guardianship letters, but Rhonda's mother was reluctant to agree to such a proceeding. Rhonda was never admitted to the Marshall Public Schools even though she remained in Marshall for the remainder of the 1982-83 school year. As a consequence of her not being allowed to enroll in the Marshall schools, Rhonda was forced to repeat the ninth grade in another school district the following year. By an order signed December 13, 1983, the court granted Mrs. Williams and Rhonda permission to file their complaint in intervention, seeking the same relief sought by Phillip and the Hortons.
In both removing Phillip's name from the school rolls and refusing to enroll Rhonda, Mr. Holder followed a policy that a parent or guardian must reside in the school district for a child to be eligible to attend Marshall Public Schools. This policy was based upon ARK.STAT.ANN. § 80-1501 (Repl.1980). The plaintiffs contend that section 80-1501 is unconstitutional on its face as a violation of the Equal Protection Clause.
The Supreme Court has on a number of occasions had the opportunity to consider the constitutionality of state regulations which impose a condition of residency upon the right to receive a benefit. In Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969), the Court overturned a Connecticut requirement that applicants for public assistance must have lived in the state for at least one year before they could become eligible to receive such benefits. Although the Supreme Court held that such a durational requirement clearly violated the Equal Protection Clause by penalizing the fundamental right of interstate travel without promoting a compelling state interest, Justice Brennan, writing for the Court, noted:
*98 We imply no view of the validity of waiting-period or residence requirements determining eligibility to vote, eligibility for tuition-free education, to obtain a license to practice a profession, to hunt or fish, and so forth. Such requirements may promote compelling state interests on the one hand, or, on the other, may not be penalties upon the exercise of the constitutional right of interstate travel. Shapiro v. Thompson, supra, at 638 n. 21, 89 S.Ct. at 1333 n. 21.
In Dunn v. Blumstein, 405 U.S. 330, 92 S. Ct. 995, 31 L. Ed. 2d 274 (1972), Tennessee law limited voter registration to those persons who at the time of the election had been residents of Tennessee for one year and residents of the county for three months. The Supreme Court invalidated the durational component of the residence requirement, but Justice Marshall added, "We emphasize again the difference between bona fide residence requirements and durational residence requirements ... an appropriately defined and uniformly applied requirement of bona fide residence may be necessary to preserve the basic conception of a political community, and therefore could withstand close constitutional scrutiny." Dunn v. Blumstein, supra, at 344, 92 S.Ct. at 1004.[1]
The Supreme Court has also drawn similar distinctions between durational residence requirements and bona fide residence requirements in cases involving publicly supported education. The constitutionality of a Connecticut statutory definition of "resident" and "non-resident" for purposes of tuition payment at state-supported colleges and universities was at issue in Vlandis v. Kline, 412 U.S. 441, 93 S. Ct. 2230, 37 L. Ed. 2d 63 (1973). A student's residence classification was established at the time of enrollment and was permanent and irrebuttable for the entire time the student remained at the university. The Court did not question Connecticut's right to classify students by residency status and to charge non-residents higher tuitions and fees; rather, the Court ruled that the Due Process Clause was violated by a permanent, irrebuttable presumption of nonresidence. In Starns v. Malkerson, 401 U.S. 985, 91 S. Ct. 1231, 28 L. Ed. 2d 527 (1971), the Court summarily affirmed a district court decision upholding a regulation of the University of Minnesota providing that no student could qualify as a resident for tuition purposes until he had been a bona fide domiciliary for at least one year. See Starns v. Malkerson, 326 F. Supp. 234 (D.Minn.1970) (three-judge court).
More recently, in Plyler v. Doe, 457 U.S. 202, 102 S. Ct. 2382, 72 L. Ed. 2d 786 (1982), the Supreme Court held that a Texas statute which authorized local school districts to deny enrollment to children who could not establish that they had been legally admitted into the United States was constitutionally infirm under the Equal Protection Clause. Justice Brennan did state, however, that a school district was within its rights "to apply ... established criteria for determining residence" to an undocumented child or to any other child seeking admission to its schools. Plyler v. Doe, supra, at 227 n. 22, 102 S.Ct. at 2400 n. 22.[2]
In Martinez v. Bynum, 461 U.S. 321, 103 S. Ct. 1838, 75 L. Ed. 2d 879 (1983), the Supreme Court again looked at TEX.EDUC. CODE ANN. § 21.031(b) (Supp.1982), the same statute in question in Plyler. Specifically, the Court reviewed section 21.031(b), (c) and (d) which denied tuition-free admission to a minor living apart from a parent, guardian, or other person having lawful control of him if his presence in the school *99 district was "for the primary purpose of attending the public free school."[3] The plaintiffs had amended their complaint to narrow the issue to whether section 21.031 was unconstitutional on its face.
The Court had little difficulty in arriving at the conclusion that:
A bona fide residence requirement, appropriately defined and uniformly applied, furthers the substantial state interest in assuring that services provided for its residents are enjoyed only by residents. Such a requirement with respect to attendance in public free schools does not violate the Equal Protection Clause.... It does not burden or penalize the constitutional right of interstate travel, for any person is free to move to a State and to establish residence there. A bona fide residence requirement simply requires that a person does establish residence before demanding the services that are restricted to residents.
Martinez v. Bynum, supra, at ___, 103 S.Ct. at 1839, 75 L.Ed.2d at 879.
Once this principle was established, the remaining issue became whether section 21.031 was a bona fide residence requirement. The Court chose as its test of residence a two-part definition requiring both physical presence and an intention to remain.[4] This "classic" definition of residence was distinguished from the traditionally more rigorous test of domicile, essentially the standard used in Vlandis to determine whether a college student qualified for resident tuition status. In general, domicile denoted the fixed and permanent home of an individual, the place to which he had the intention of returning whenever he was absent. "This standard [domicile] could not be applied to school-age children in the same way that it was applied to college students." Martinez v. Bynum, supra, at ___, 103 S.Ct. at 1874, 75 L.Ed.2d at 889.
ARK.STAT.ANN. § 80-1501 (Repl.1980) provides that the public schools of any Arkansas school district will be open and free to those children "who are domiciled in the district or, in the case of minors, whose parents or legal guardians are domiciled in the district...."[5] The issue here then is whether section 80-1501 imposes a bona fide residence requirement or whether it truly imposes a standard which may not be applied to public school-age students.
Domicile is most often used to designate "a person's true, fixed, and permanent home and place of habitation ... where he *100 intends to remain, and to which he expects to return when he leaves without intending to establish a new domicile elsewhere." Sturgis v. Washington, 368 F. Supp. 38 (W.D.Wash.1973), summarily aff'd, 414 U.S. 1057, 94 S. Ct. 563, 38 L. Ed. 2d 464 (1974). Any single definition of domicile will not be totally satisfactory, however, because
The concept of domicil cannot be defined so as to embrace all of its phases. The difficulty arises because "domicil" is never employed in the abstract, but always with reference to various specific ... rights ... consequently, the term has come to have different meanings even within the same jurisdiction, depending upon the connection in which it is used. 25 Am.Jur.2d 5.
As a general rule in Arkansas, domicile and residence have not been considered to be synonymous. Stephens v. AAA Lumber Co., 238 Ark. 842, 384 S.W.2d 943 (1964). The difference in the terms is most often expressed as a matter of intent: "Domicile differs from residence only in the existence of a subjective intent to remain more or less permanently in the particular state." Wheat v. Wheat, 229 Ark. 842, 318 S.W.2d 793 (1958). In a more recent case the Arkansas Supreme Court held that there was no particular length of time required to establish domicile, but that there must be residence attended by such circumstances manifesting a bona fide intention of making it a fixed and permanent abode. Moon v. Moon, 265 Ark. 310, 578 S.W.2d 203 (1979). In Moon the test of domicile focused on an inquiry into the existence of a bona fide intention to become a permanent resident of the new abode. For purposes of deciding whether a plaintiff was a citizen of Arkansas for diversity jurisdiction it was said that "[to] acquire a domicile of choice, the law requires the physical presence of a person at the place of the domicile claimed, coupled with the intention of making it his present home." Ellis v. Southeast Construction Co., 260 F.2d 280 (8th Cir.1958). Therefore, it appears that there is authority to support the notion that in Arkansas domicile means actual residence in a place accompanied by the subjective intent of making it a present home more or less permanently.[6]
The Arkansas Supreme Court has not yet had an opportunity to explain exactly what domicile in section 80-1501 requires, but it has cited the statute in other contexts. In Newark School Dist. v. Cord-Charlotte School Dist., 278 Ark. 110, 644 S.W.2d 253 (1983), the court interpreted ARK.STAT. ANN. § 80-1528 (Supp.1981) regarding legal transfers between school districts.[7] The court did not address the issue of just what domicile means for purposes of attending public schools; its only comment that might be helpful here was that the dispute in Newark began when the Newark school district allowed students "residing" in the Cord-Charlotte school district to attend *101 its schools. Newark School Dist. v. Cord-Charlotte School Dist., supra, at 111, 644 S.W.2d 253. The court again cited sections 80-1501 and 80-1528 in Delta Sp. School Dist. # 5 v. McGehee Sp. School Dist. # 17, 280 Ark. 489, 659 S.W.2d 508 (1983). There, the issue was whether students who "reside and are domiciled in one district" may attend school in another district without the consent of both districts. The court held that the plain meaning of section 80-1501 was that children were entitled to a free education in the district where they were domiciled and concluded that it was error to allow children "who reside in and are domiciled in" one district to attend school in another district without the consent of both districts. Delta Sp. School Dist. # 5 v. McGehee Sp. School Dist. # 17, supra, 659 S.W.2d at 509.
In deciding whether section 80-1501 is a bona fide residence requirement of the sort approved in Martinez, we take as our starting point the Supreme Court's minimum standard for permissible residence requirements:
But at the very least, a school district generally would be justified in requiring school-age children or their parents to satisfy the traditional, basic residence criteria i.e., to live in the district with a bona fide intention of remaining there before it treated them as residents. Martinez, at ___, 103 S.Ct. at 1874, 75 L.Ed.2d at 889.
We note a substantial similarity between the Supreme Court's basic residence criteria and the definition of domicile, nor are we the only ones to do so. Justice Marshall, the lone dissenter in Martinez, believed that the standard approved by the majority of the Court was not the traditional definition of residence, but rather was the standard for determining domicile. Justice Marshall went so far as to suggest that the cases which the majority cited in support of its definition of residence involved not the common law concept of residence at all, but actually concerned state statutes which expressly incorporated a domiciliary standard or which were so interpreted by state courts. See Martinez at ___ n. 5, 103 S.Ct. at 1847 n. 5, 75 L.Ed.2d at 893 n. 5.
Certainly, the domicile requirement in section 80-1501 would be constitutionally suspect if it imposed any sort of durational requirement upon the right to attend the free public schools of Arkansas. While such a requirement may be applied to college students, it could not be applied in the same manner to school-age students. Martinez at ___, 103 S.Ct. at 1844, 75 L.Ed.2d at 889. We feel sure, however, that section 80-1501 contains no such standard nor would it ever be interpreted to require residence for a minimum period of time. See Moon v. Moon, supra.
We are not overlooking the fact that the traditional definition of domicile has required "a subjective intent to remain more or less permanently." Wheat v. Wheat, supra. Under the minimum standards of Martinez, however, a school district may require that public school students or their parents live in the district with a bona fide intention to remain there:
Of course, the "intention to remain" component of the traditional residency standard does not imply an intention never to leave. Given the mobility of people and families in this country, changing a place of residence is commonplace. The standard accommodates that possibility as long as there is a bona fide present intention to remain. Martinez at ___ n. 13, 103 S.Ct. at 1844 n. 13, 75 L.Ed.2d at 889 n. 13.[8]
*102 Likewise, we believe that the "intention to remain more or less permanently" component of the traditional domicile standard can accommodate a mobile society. This is true in part because as previously noted the concept of domicile adapts itself to different purposes within a jurisdiction, depending upon the right involved. In Arkansas the right of all persons between the ages of six and twenty-one years to a free public education was established in art. 14, § 1, of the Arkansas Constitution.[9] The Arkansas Supreme Court has consistently leveled any obstacle to the right to receive a free public education. In Dowell v. School District No. 1, Boone County, 220 Ark. 828, 250 S.W.2d 127 (1952), the court held that no school district could require payment of a registration fee to attend the public schools, citing the constitutional mandate for free education. In Special School Dist. No. 65 v. Bangs, 144 Ark. 34, 221 S.W. 1060 (1920), the court agreed that an Act of the General Assembly allowing a school board to charge tuition when it deemed it necessary to do so was not permitted under the Arkansas Constitution, saying "... under the plain mandate of our Constitution ... the gratuitous instruction of all the persons in the school district between the ages of six and twenty-one years is guaranteed in the public schools." Bangs, supra, at 36, 221 S.W. at 1060. See also Common School Dist. 42 v. Stuttgart Special School Dist. 22, 187 Ark. 119, 58 S.W.2d 680 (1933), and Board of Directors of Gould Special School Dist. v. Holdtoff, 171 Ark. 668, 285 S.W. 357 (1926).
Given the long-standing commitment to the principle that Arkansas public schools should be open and free to all school-age children living in a school district, we find it difficult to believe that domicile for purposes of public school attendance would be interpreted to require anything more than a present intention to remain, a standard already approved in Martinez. Neither are we persuaded that the concept of domicile in section 80-1501 does not countenance and would not accommodate the mobility of contemporary families, even those who reside in a school district for a period of time without the intention of making that home a fixed and permanent abode.
An issue also exists as to whether section 80-1501, though constitutional, was applied in a manner which denied plaintiffs' due process. The now familiar inquiry into this issue involves two steps: first, were plaintiffs deprived of a protected interest and, second, if so, what process was their due. Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S. Ct. 1148, 71 L. Ed. 2d 265 (1981).
Those property interests protected by the Due Process Clause may include an interest in receiving a benefit, but the recipient of that benefit must have a legitimate claim of entitlement to it. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. *103 2701, 33 L. Ed. 2d 548 (1972). Property interests "are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Board of Regents v. Roth, supra, at 577, 92 S.Ct. at 2709. In Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975), the Supreme Court held that a state must recognize as a property interest a student's legitimate entitlement to a public education and that such a property interest may not be terminated for misconduct without some minimum due process protection. Of course, in the present case the deprivation of the right to attend public school was not based upon any misconduct upon Phillip's or Rhonda's part, but rather it was based upon their ineligibility under state law to attend the Marshall Public Schools. However, because "education is perhaps the most important function of state and local governments," Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), we believe a student's right to public education is a protected property interest in either case.[10]
In regard to the issue of what process was due, a student facing interference with the protected interest in public education "must be given some kind of notice and afforded some kind of hearing ... the timing and content of the notice and the nature of the hearing will depend on appropriate accommodation of the competing interests involved." Goss v. Lopez, supra, 419 U.S. at 579, 95 S.Ct. at 739. We cannot find in either Rhonda's or Phillip's case that the minimum requirements of due process were not met. It appears that under the circumstances adequate notice of the potential eligibility problems was given and both parties were given adequate opportunity to respond and to correct any mistakes of fact. This is not to say, however, that the school officials involved did everything that they could have done to aid the students more completely, but that is not what the Due Process Clause requires. We find only that the minimum requirements were complied with.
In conclusion, the court finds that ARK. STAT.ANN. § 80-1501 is a constitutional residence requirement and that it was applied in a constitutional manner. Therefore, judgment will be entered for the defendants.
NOTES
[1] See also Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S. Ct. 1076, 39 L. Ed. 2d 306 (1974) (Court invalidated a one-year residence requirement for eligibility for public medical assistance), and McCarthy v. Philadelphia Civil Service Commission, 424 U.S. 645, 96 S. Ct. 1154, 47 L. Ed. 2d 366 (1976) (per curiam) (distinguished continuing-residence requirement from a durational requirement).
[2] In reaching its decision, the Court in Plyler reaffirmed its position in San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973), that public education is not a fundamental right granted to individuals by the Constitution.
[3] The pertinent sections of section 21.031 provide:
(b) Every child in this state ... who is over the age of five years and not over the age of 21 years on the first day of September of the year in which admission is sought shall be permitted to attend the public free schools of the district in which he resides or in which his parent, guardian, or the person having lawful control of him resides....
(c) The board of trustees of any public free school district ... shall admit into the public free schools of the district free of tuition all persons ... who are over five and not over 21 years of age ... if such person or his parent, guardian or person having lawful control resides within the school district.
(d) In order for a person under the age of 18 years to establish a residence for the purposes of attending the public free schools separate and apart from his parent, guardian, or other person having lawful control of him under an order of a court, it must be established that his presence in the school district is not for the primary purpose of attending the public free schools. The board of trustees shall be responsible for determining whether an applicant for admission is a resident of the school district for purposes of attending the public schools.
[4] "When ... a person voluntarily takes up his abode in a given place, with intention to remain permanently, or for an indefinite period of time; or, to speak more accurately, when a person takes up his abode in a given place, without any present intention to remove therefrom, such place of abode becomes his residence...." Inhabitants of Warren v. Inhabitants of Thomaston, 43 Me. 406 (1857).
[5] The complete text of section 80-1501 reads:
The public schools of any school district in this State shall be open and free through completion of the secondary program, to all persons between the ages of six (6) and twenty-one (21) years who are domiciled in the district or, in the case of minors, whose parents or legal guardians are domiciled in the district, or to all persons between these ages who have been legally transferred to the district for education purposes.
[6] Compare this definition with one used to determine domicile at the time of death of an incompetent for purposes of appointing a domiciliary administrator. In those circumstances domicile was established by the abandonment of any previous domicile with the intent not to return, and actual residence in a place with the intent of making the new residence a permanent home. Phillips v. Sherrod Estate, 248 Ark. 605, 453 S.W.2d 60 (1970).
[7] Section 80-1528, in relevant part, provides:
Upon the petition of any person residing in any particular school district (resident district), to transfer the children or wards of such person to another school district (receiving district), the Board of Directors of the resident district may enter into an agreement with the Board of Directors of another school district transferring the children to the receiving district for purposes of education.... After the petition has been approved by the Board of Directors of the resident district and the Board of Directors of the receiving district, copies of such written consent shall be filed in the office of the County Clerk, with the person filing the petition and in the administrative office of the respective school districts. This legal transfer of children from one district to another places the responsibility for the education of the children on the receiving district and permits the receiving district to count these children in average daily membership for state aid purposes. This Act [this section] does not transfer the local tax money from the resident district. [emphasis added.]
[8] Neither are we overlooking the fact that the Arkansas General Assembly amended section 80-1501 in 1981 by substituting domicile for residence. The original text of section 80-1501 as adopted in 1931 read:
The public schools of any school district shall be open and free to all persons between the ages of six [6] and twenty-one [21] years, residing in that district, and the directors of any district may permit older or younger persons to attend the schools under such regulations as the State Board of Education may prescribe.
[9] The original text of art. 14, § 1, of the Constitution of the State of Arkansas (adopted in 1874) provides:
§ 1. Free school system. Intelligence and virtue being the safeguards of liberty and the bulwark of a free and good government, the State shall ever maintain a general, suitable and efficient system of free schools whereby all persons in the State between the ages of six and twenty-one years may receive gratuitous instruction.
In 1967, art. 14, § 1, was amended by Amendment 53 as follows:
§ 1. Free school system.
Intelligence and virtue being the safeguards of liberty and the bulwark of a free and good government, the State shall ever maintain a general, suitable and efficient system of free public schools and shall adopt all suitable means to secure to the people the advantages and opportunities of education. The specific intention of this amendment is to authorize that in addition to existing constitutional or statutory provisions the General Assembly and/or public school districts may spend public funds for the education of persons over twenty-one (21) years of age and under six (6) years of age, as may be provided by law, and no other interpretation shall be given to it.
(Amendment 53 was adopted to confirm specifically the power of the General Assembly and of local school districts to spend public funds for the education of persons over twenty-one and under six years of age. Fortman v. Texarkana School Dist. No. 7, 257 Ark. 130, 514 S.W.2d 720 (1974).
[10] See also Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970), in which the Court held due process required that welfare recipients have an opportunity to establish their eligibility under applicable statutes to receive welfare benefits. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1869327/ | 589 F. Supp. 718 (1984)
Carol McGUIRE, Plaintiff,
v.
Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
No. 83 Civ. 2800.
United States District Court, S.D. New York.
July 9, 1984.
*719 Binder & Binder, Hauppauge, N.Y., for plaintiff; Charles E. Binder, Hauppauge, N.Y., of counsel.
Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City, for defendant; Sally Lord, Asst. U.S. Atty., New York City, of counsel.
OPINION
EDWARD WEINFELD, District Judge.
Plaintiff Carol McGuire ("McGuire") brought this action pursuant to 42 U.S.C. § 405(g) (1982) to review the final determination of the Secretary of Health and Human Services ("Secretary") denying her Social Security disability benefits. The Secretary moves, and McGuire cross-moves, for judgment on the pleadings in accordance with Rule 12(c), Fed.R.Civ.P. There is no dispute that plaintiff was insured during the relevant period for provision of disability benefits.[1] The sole question on this appeal is whether the Secretary's determination that McGuire was not disabled within the meaning of 42 U.S.C. § 423(d) (1982) is supported by "substantial evidence."[2]
Plaintiff, who for seven years worked as a legal secretary, claims that since 1979 she has been afflicted with arthritis and lupus erythematosus ("L.E."). The latter, she claims, affects her skin and joints, and causes fatigue and chronic, at times severe, pain, precluding her return to work as a legal secretary, which entailed typing, filing papers, answering the telephone, and other duties. She has been treated for L.E. by two physicians, Dr. Chandra Menon, from 1979 through February 1980, and, from February 1980 through the present, by Dr. Richard Benda. In 1982 she also was treated by Dr. Thomas A. Cerillo, a podiatrist, for cysts in her feet, which he diagnosed as associated with L.E. McGuire has also been examined by two consultative physicians designated by the Social Security Administration, Drs. Murray Sherwin and Harry Jackson.
Following a hearing, McGuire's claim was rejected by the Administrative Law Judge ("ALJ") on the ground that she failed to meet the requirement under the Secretary's regulations that she have a "severe impairment," that is, "any impairment which significantly limits [claimant's] physical or mental ability to do basic work activities ...."[3] The ALJ noted that plaintiff's *720 condition was "under control" and that her prescription for Aristocort cortisone compound had been reduced from 48 milligrams to alternating doses of 16 and 32 milligrams "with improvement."[4] He also relied upon McGuire's testimony purportedly to the effect that "she can do a full range of activities, including housework, taking care of her child, playing ball games, driving (or taking public transportation) activities which involve sitting, standing, grasping[,] and manipulation of the hands."[5]
In deciding McGuire was thus not disabled, the ALJ rejected not only the findings of McGuire's treating physician, Dr. Benda but also those of the Social Security Administration's consultative physician, Dr. Sherwin, who examined McGuire in June 1981. Dr. Benda had concluded in his most recent report, dated March 4, 1982, that McGuire "is unable to hold a steady job as she is unable to do anything with her hands and her stamina is very poor."[6] Dr. Sherwin found that in an eight-hour work day claimant could not walk for even two hours and could not repetitively use her hands for "grasping, pushing/pulling, or fine manipulation."[7] The ALJ rejected these findings on the ground that Dr. Benda's conclusion was not backed by "supporting objective clinical findings"[8] and that Dr. Sherwin's evaluation was "inconsistent with the medical findings" and not substantiated by an "objective medical report."[9]
The ALJ, relying on his assessment of McGuire's demeanor and the consistency of her testimony, also rejected what he characterized as McGuire's claim of "constant, severe[,] and debilitating pain." In this regard, the ALJ relied on Dr. Jackson's finding that when McGuire was examined on October 15, 1981, she appeared to be in only "mild distress."[10] The ALJ also relied on statements by plaintiff's podiatrist, Dr. Cerillo, which he construed as indicating that the pain associated with the cysts on McGuire's right foot could be "corrected by surgery."[11] Finally, the ALJ reiterated McGuire's testimony concerning her activities, noted above, as a basis for rejecting plaintiff's claim of disabling pain.[12]
On February 16, 1983, the Social Security Administration's Office of Hearings and Appeals denied McGuire's request that the decision of the ALJ be reversed. The ALJ's decision thus became the Secretary's final decision,[13] leading to the instant action.
DISCUSSION
The Court's task on this motion is limited to reviewing the record to determine whether the Secretary's factual determination that McGuire did not suffer any "severe impairment"[14] is supported by substantial evidence.[15] "Substantial evidence is defined as `"such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."'"[16] Before concluding that McGuire is not entitled to benefits, *721 the Secretary is obligated to consider the record evidence of (1) objective medical facts; (2) diagnoses or medical opinions based on these facts; (3) subjective evidence of pain and disability testified to by the claimant; and (4) the claimant's educational background, age, and work experience.[17] It is the Court's duty not only to determine whether this consideration has been made, but, more particularly, to review the Secretary's compliance with "well established"[18] principles governing the evaluation of the record evidence, especially that of expert medical opinions by treating physicians. As our Court of Appeals has recently noted:
The ... cases [in this Circuit] establish a sequence, and in effect posit an analytical framework, which the ALJ should follow. Initially, the ALJ should see whether the treating physician has determined that the claimant is disabled. He should then examine the record for conflicting evidence. Upon finding conflicting evidence, he should compare the probative value of the treating physician's opinion with the probative value of the conflicting evidence.... It [i]s improper for the ALJ to ... requir[e] from the start that [claimant's treating physician's] expert opinion be accompanied by concrete and detailed clinical support.[19]
Recognizing that the scope of review of the Secretary's decision is narrow and limited, the Court is nevertheless persuaded by its own word-by-word reading of the administrative record that the decision of the ALJ, which stands as the Secretary's final decision in this case, was not rendered with due regard for the rules governing the consideration of expert medical opinions and the plaintiff's subjective evidence of pain and disability, and is not otherwise supported by substantial evidence.
The record evidence that McGuire's treating physician, Dr. Benda, had concluded McGuire was disabled is clear and unequivocal. In his March 4, 1982, report, Dr. Benda noted that McGuire suffered from "severe tiredness and lethargy" as well as "swelling and redness of the fingers and both hands with marked limitation of motion," and that, notwithstanding doses of 48 milligrams of Aristocort, four days per week, "her joint and skin manifestations [of systemic lupus erythematosus] are unchanged."[20] His conclusion, quoted in part above, reads as follows:
The prognosis for recovery is guarded and this tends to be a chronic condition and requires constant monitoring of her physical status and blood chemistries. At this point in time [McGuire] is unable to hold a steady job as she is unable to do anything with her hands and her stamina is very poor. In addition she also has complaints of pains in her feet which she has seen a [p]odiatrist for in the past, and she is unable to stand for any prolonged lengths of time.
I believe on the basis of the preceding that this patient is disabled and is unable to work at this time.[21]
Dr. Benda's conclusion and the ALJ's ultimate determination that "claimant does not have any impairment or impairments which significantly limit the ability to perform basic work-related functions" are irreconcilable; clearly, the ALJ rejected Dr. Benda's expert evaluation. The ALJ appeared to rely on four independent grounds to justify this action, but upon analysis none of the purported reasons is sufficient under applicable law, as applied to the administrative record before the ALJ.
*722 The first proffered reason, and that which appears to have most influenced the ALJ, was the ALJ's observation that Dr. Benda "provided no supporting objective clinical findings" to back his conclusion of disability. This observation, in light of the record evidence, is questionable to say the least,[22] and, in any event, the ALJ's reliance on the absence of clinical evidence is directly contrary to the repeated admonition by our Court of Appeals that "there is no requirement that the [treating] physician's `medical testimony "be supported by `objective' clinical or laboratory findings."'"[23] Indeed, the ALJ rejected not only the treating physician's conclusion of McGuire's disability on this improper basis, but also that of the Secretary's own consultative physician, Dr. Sherwin, to the effect that McGuire was completely unable to use her hands for repetitive actions, could not walk for a total of two hours, and could not sit or stand in excess of two hours, each work day.[24] The ALJ's remark, with respect to Dr. Sherwin's conclusion, that it was "inconsistent with the medical findings," is without any support in the record. Indeed, it is unclear to what medical findings he referred.
The second basis upon which the ALJ appeared to rest his rejection of Dr. Benda's conclusion of disability is McGuire's testimony, which the ALJ interpreted as admitting she "can do a full range of activities, including housework, taking care of her child, playing ball games, driving (or taking public transportation) activities which involve sitting, standing, grasping[,] and manipulation of the hands."[25] A fair reading of McGuire's testimony, however, does not reveal she made the admissions as expansively set forth by the ALJ. The ALJ's characterization of McGuire's various statements disregards significant portions of her testimony that negate any inference of her ability to perform work-related activities, and is not otherwise justified by any articulated reason. McGuire did testify that she drives to her doctor's appointments, walks her son to school, and does some housework and shopping, "[i]f I am up to it."[26] There was no testimony to the effect that she "play[ed] ball games"[27] and McGuire expressly doubted that she could ride public transportation if she could *723 not get a seat.[28] She affirmed she could not walk more than five or six blocks at a stretch, could not do heavy lifting, could not type because of "lumps on my fingers," and was so fatigued after even light housework that she felt she had "put in forty hours."[29]
Moreover, even if the ALJ were correct in his assessment that McGuire "can do a full range of activities," there is no substantial evidence in the record that she can perform normally for more than a short period of time.[30] The question before the ALJ was whether McGuire was significantly lacking in "the abilities and aptitudes necessary to perform most jobs."[31] Her testimony does not supply evidence relevant to this issue such that a reasonable mind could accept it as adequate to support the ALJ's ultimate conclusion of non-disability. The evidence, in fact, points in the opposite direction.
The third apparent basis for the ALJ's refusal to credit Dr. Benda's evaluation is the lapse in time between Dr. Benda's March 4, 1982, report, and McGuire's hearing before the ALJ on August 9, 1982. McGuire testified that as of her hearing date she was taking alternate doses of 16 and 32 milligrams of Aristocort, four days per week, which, she asserted "controlled" her disease, as opposed to the 48 milligram doses mentioned in Dr. Benda's report. The ALJ cryptically referred to this change of dose as coming about "with improvement." Whatever the ALJ's intention in making the statement, there is no substantial evidence that the reduction in dose was indicative of "improvement" in McGuire's condition between March and August 1982.[32] To the contrary, the only direct evidence of plaintiff's symptomology on August 9, 1982, plaintiff's testimony, indicated plaintiff's condition had not improved. The implication that McGuire exaggerated her symptoms is not justified, especially in light of adjustments, at other times, in her dosage of Aristocort required to minimize the negative side effects of the cortisone compound.[33] That McGuire's disease was "controlled" on her hearing date is not probative on the issue of disability. McGuire clearly explained that the fact that her disease was "controlled" signified only that her condition had not worsened. She contended her treatment would not cure her disorder. On these points the medical documentation uniformly supports her position.
Finally, insofar as the ALJ relied on a statement by McGuire's podiatrist that the cysts on her feet should be removed by surgery "if pain persists," his conclusion that McGuire did not suffer a severe impairment is not supported by substantial evidence.[34] Given the record evidence, surgical *724 removal of the cysts would not render McGuire's disease a "non-severe impairment," as defined by the Secretary's regulations.[35] Dr. Cerillo noted that even after surgery "recurrence [of the cysts is] frequent[.]" The cysts, moreover, are only a small portion of McGuire's medical problems. The podiatrist did not, nor would it have been proper for him to, prescribe an entire course of treatment for claimant's L.E. Indeed, Dr. Benda stated that, wholly aside from the pains in her feet, McGuire "is unable to hold a steady job as she is unable to do anything with her hands and her stamina is very poor."[36] McGuire's failure, up to the date of the hearing, while still under treatment by the podiatrist, to submit to surgery, does not by itself provide substantial evidence that she was not suffering a severe impairment and thus not disabled within the meaning of the Social Security Act.
Although the record's failure to support a finding that there was substantial evidence contradicting Dr. Benda's conclusion that plaintiff was disabled is alone basis for reversal and remand,[37] it is important to note as well that the ALJ's rejection of McGuire's testimony of pain as not credible is also not supported by substantial evidence. In rejecting McGuire's claims, the ALJ asserted that she had been inconsistent in her statements concerning her pain. The ALJ thus noted that although "claimant testified in a straightforward, credible manner of constant, severe and debilitating pain[,]" Dr. Jackson "noticed only a mild distress from pains in her hands and feet."[38] A review of McGuire's testimony fails to indicate that she ever testified to "constant, severe[,] and debilitating pain." She did testify to having "stiffness [in her joints] just about all the time,"[39] that recurring pain in her shoulder would prevent her from working at a job that required lifting,[40] that she experienced pain in her hands, wrists, and other joints "about three days a week,"[41] and that about three times a month she experienced "flareups" of severe pain, which "fe[lt] as though[] a bone [wa]s broken," and which required administration of codeine.[42] Dr. Jackson's finding, based on his single examination in October 1981 almost ten months before her administrative hearing that McGuire was in only mild distress is not inconsistent with these symptoms. McGuire did not need to prove "constant, severe[,] and debilitating pain" to show her disability. Chronic and recurring pain traceable to a medical cause and significantly limiting a claimant's ability to perform basic work activities would qualify her as having a "severe" impairment for purposes of the regulations.[43] The record fails to indicate substantial evidence in support of the ALJ's implicit conclusion that McGuire's pain was not of this nature.
Moreover, the ALJ's rejection of McGuire's testimony is unsound for other *725 reasons. The ALJ noted that in evaluating pain, among the factors to be considered was "expressions of pain during the hearing."[44] He then observed that McGuire "sat comfortably throughout the hearing[,] ... answered questions spontaneously and did not appear preoccupied with physical distress" and that she testified to what the ALJ referred to as "engag[ing] in all types of physical and mental activities"; he concluded, from the foregoing, that "her allegation concerning the severity of her pain is not credible."[45] This conclusion is a non sequitur. Plaintiff testified that at times her disorder was in remission and she was at times free of pain. The ALJ's emphasis on "expressions of pain during a hearing" would penalize claimants who are free of pain during the taking of testimony, and yet who are nevertheless legitimately disabled, and indeed may encourage the simulation of pain at administrative hearings.
The decision of the Secretary is accordingly reversed and remanded for further proceedings, consistent with the foregoing.
So ordered.
NOTES
[1] See 42 U.S.C. § 423(c)(1)(B) (1982).
[2] Id. § 405(g).
[3] 20 C.F.R. § 404.1520(c) (1983); Record at 13. The regulations define "basic work activities" as "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. § 404.1521(b) (1983).
The determination of whether a disability insurance claimant is "severely" impaired is the second in a five step sequence used by the Secretary to make an ultimate determination of disability, which our Court of Appeals has summarized as follows:
First, the Secretary considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the Secretary next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on the medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Secretary will consider him disabled without considering vocational factors such as age, education and work experience; the Secretary presumes that a claimant who is afflicted with a "listed" impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the Secretary then determines whether there is other work which the claimant could perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam), quoted, Bluvband v. Heckler, 730 F.2d 886, 891 (2d Cir.1984).
Under the Secretary's regulations, L.E. is a "listed" impairment if it extends to claimant's "renal or cardiac or pulmonary or gastrointestinal or central nervous systems," 20 C.F.R. § 404.1501 App. 1, § 10.04 (1983). There was ample evidence in the administrative record to support a determination that McGuire was not so afflicted and McGuire on this series of motions does not contend she was entitled to a finding of per se disability on the basis of the regulations or that the regulations are invalid. Cf. Keith v. Heckler, 732 F.2d 1089, 1093 (2d Cir.1984) (challenge to severity regulation). The Court of Appeals for the Second Circuit has studiously avoided a ruling on the latter issue. See id. at 1094.
[4] Record at 12.
[5] Id.
[6] Id. at 91.
[7] Id. at 78.
[8] Id. at 12.
[9] Id.
[10] Id.; see id. at 81.
[11] Id. at 89. The ALJ erroneously refers to the podiatrist as "T.A. Calb." Id. at 12.
[12] Id. at 13.
[13] Id. at 2-3.
[14] See supra note 3.
[15] 42 U.S.C. § 405(g) (1982).
[16] Aubeuf v. Schweiker, 649 F.2d 107, 112 (2d Cir.1981) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971)); see Bluvband v. Heckler, 730 F.2d 886, 891 (2d Cir.1984); McBrayer v. Secretary of Health & Human Servs., 712 F.2d 795, 798 (2d Cir.1983).
[17] Rivera v. Schweiker, 717 F.2d 719, 723 (2d Cir.1983); Leftenant v. Schweiker, 543 F. Supp. 989, 990 (S.D.N.Y.1982).
[18] Bluvband v. Heckler, 730 F.2d 886, 892-93 (2d Cir.1984).
[19] Id. at 893; see id. at 892-93 (citing Donato v. Secretary of Health & Human Servs., 721 F.2d 414, 419 (2d Cir.1983); Rivera v. Schweiker, 717 F.2d 719, 723 (2d Cir.1983); Eiden v. Secretary of Health, Educ. & Welfare, 616 F.2d 63, 64 (2d Cir.1980); Alvarado v. Califano, 605 F.2d 34, 35 (2d Cir.1979); Bastien v. Califano, 572 F.2d 908, 912 (2d Cir.1978); Cutler v. Weinberger, 516 F.2d 1282, 1287 (2d Cir.1975)).
[20] Record at 91.
[21] Id.
[22] Although the ALJ does not explain what he meant by "objective clinical findings," Dr. Benda's March 1982 report states that his diagnosis was based not only on McGuire's "swelling and redness of the fingers and both hands" and "typical butterfly rash ... as well as multiple areas of erythema," but also claimant's "abnormal blood serology," id. Blood tests performed in February 1980, the detailed results of which are reported in the record, see id. at 76, included an "antinuclear antibodies test," which is used to diagnose L.E. That test registered positive results.
[23] Bluvband v. Heckler, 730 F.2d 886, 893 (2d Cir.1984) (quoting Eiden v. Secretary of Health, Educ. & Welfare, 616 F.2d 63, 65 (2d Cir.1980) (quoting Cutler v. Weinberger, 516 F.2d 1282, 1287 (2d Cir.1975))).
[24] It should be noted as well that the ALJ apparently ignored Dr. Sherwin's affirmation in his report that his evaluation was "based upon history and [my] clinical examination, as well as any test results, and not on the claimant's allegations." Record at 78 (emphasis in original). An omission of a medical expert's affirmation of facts favorable to the claimant "raise[s] serious questions about the ALJ's findings that appellant ... no longer [or does not] suffer from a severe impairment." Varela v. Secretary of Health & Human Servs., 711 F.2d 482, 284-85 (2d Cir.1983) (per curiam).
[25] Record at 12. The importance of this characterization of McGuire's testimony to the ALJ's determination is evident by the fact that he mentioned no fewer than three times that McGuire admitted that she "plays ball." See id. at 10, 12, 13. McGuire's actual testimony was as follows:
A: I used to be very sports inclined. I would play ball. And very active. And Now I really you know I can't do it. That does bother me.
Q: What are the other types of things that you can't do any more?
A: That I can't do any more[?]
Q: Yes[.]
A: I can't hit the ball with the bat you know. It is hard to grip it really is. You know I will flare up or else I am sore. It is hard. And even to play ball with my son, it is hard. I have to stay away from sun .... I am allergic to the sun more or less.
Record at 32-33 (emphasis added).
[26] Record at 30.
[27] See supra note 25.
[28] Record at 28.
[29] Id. at 28, 29, 30.
[30] Findings of severe impairment are often consistent with the ability to perform normally for short periods. See, e.g., Carroll v. Secretary of Health & Human Servs., 705 F.2d 638, 643 (2d Cir.1983) (claimant "sometimes reads, watches television, listens to the radio, rides buses and subways" and "sat still for the duration of the hearing and was in no evident pain or distress"); Aubeuf v. Schweiker, 649 F.2d 107, 113 (2d Cir. 1981) (claimant gets up, eats breakfast, listens to the radio, goes out in the yard, walks down the road, can drive a car with difficulty and pain, goes shopping and visiting with his wife); Quinones v. Secretary of Health & Human Servs., 567 F. Supp. 188, 191 (E.D.N.Y.1983) (claimant "seemed to be in no difficulty during the 18 minute hearing and ... drove himself 1½ hours to the hearing"); Leftenant v. Schweiker, 543 F. Supp. 989, 991 (S.D.N.Y.1982) (claimant "tends the household and takes care of ... two children"; can lift a "5-pound shopping bag"; "prepares and cooks the meals for the family"; "travel[s] to visit"; "is able to drive, but takes mass transit and cannot walk too far").
[31] 20 C.F.R. § 404.1521(b) (1983).
[32] McGuire denied that her condition had improved during her treatment with Dr. Benda. Record at 13.
[33] See id. at 80. In his March 4, 1982, report, Dr. Benda noted that McGuire suffered "the side effects of fluid retention and weight gain," id. at 91, from the Aristocort.
[34] The Secretary's regulations do not explicitly authorize an ALJ to consider the case with which an impairment could be cured when determining whether that impairment is "severe." Rather, a separate rule, 20 C.F.R. § 404.1530(a) (1983), states that the Secretary will not award benefits unless the claimant "follow[s] treatment prescribed by [her] physician if this treatment can restore [claimant's] ability to work" (emphasis added).
[35] See 20 C.F.R. § 404.1521(a) (1983).
[36] Record at 91 (emphasis added).
[37] McGuire's request for benefits, as the ALJ recognized, see id. at 12, is premised on claims of both physical impairment (e.g., physical limitations on movement and stamina), and disabling pain. The decisions in this circuit recognize such claims as independent grounds for disability benefits, see Rivera v. Schweiker, 717 F.2d 719, 724 (2d Cir.1983). A finding that McGuire did not suffer disabling pain would thus not necessarily preclude the award of benefits. Dr. Benda's finding of disability was not based explicitly on McGuire's allegations of pain, see Record at 91-92, and an administrative finding that McGuire did not experience disabling pain would thus not amount to substantial evidence contradicting the treating physician's conclusion of disability.
[38] Record at 12.
[39] Id. at 23.
[40] Id. at 30.
[41] Id. at 35.
[42] Id. at 38.
[43] See Rivera v. Schweiker, 717 F.2d 719, 724 (2d Cir.1983); 20 C.F.R. § 404.1520(c) (1983).
[44] Record at 12.
[45] Id. at 13. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8540805/ | Opinión disidente emitida por el
Juez Asociado Señor Kolthoff Caraballo.
Salary and pensions are not synonymous.
(1)
Si usted tuviera 30 años de edad y le anunciaran que a los 40 indefectiblemente va a morir, ¿invertiría sus últimos *84610 años de vida aportando a un plan de retiro? ¡Claro que no! ¿Para qué?, si usted jamás alcanzará la edad de retiro. Pues algo parecido es lo que el Estado ha provocado con la aprobación de la Ley Núm. 3-2013. Un análisis profundo y a conciencia me lleva irremediablemente a concluir que, en lo que respecta a la dramática reducción de las anualidades que impone, esta ley ha convertido al Sistema de Re-tiro de los Empleados del Gobierno de Puerto Rico en un particular oxímoron: obliga al empleado público a aportar a un plan de retiro con el cual jamás podrá retirarse. Es una contradicción de términos, porque los “planes de retiro” son precisamente para poder “retirarse”.
Cuando a un empleado que ha aportado a su plan de retiro por espacio de 20, 23, 25, 30 o más años de honroso servicio público, se le anuncia que cuando finalmente alcance su edad de retiro recibirá, en lugar de una pensión acordada equivalente al 75% o 65% de su salario, una pensión de apenas 40%, 35% o hasta el 30%, ese empleado sabe que realmente no se podrá retirar. De manera que, además de que tendrá que aportar por más tiempo y en mayor cantidad a su “plan de retiro”, al final esta persona tendrá que continuar trabajando, ya sea en la posición que ocupa en el servicio público o buscar otro empleo a tiempo completo en la empresa privada.(2) Tal grado de menoscabo contractual hace necesaria una intervención de esta Curia, que no puede relegarse en aras de la autolimitación o no intervención con los poderes de las otras dos ramas de gobierno.
Ciertamente, este Tribunal está impedido de dictaminar la forma y manera en que las ramas hermanas de gobierno deben resolver un problema de política pública. Eso, claramente constituiría una intromisión indebida en sus poderes, pues al Tribunal Supremo no le corresponde legislar o *847establecer cuál ha de ser la política pública del país. No nos corresponde gobernar.
Sin embargo, en circunstancias como las de los casos de autos, estamos obligados a impedir o al menos mitigar cualquier acción de las ramas políticas dirigida a menoscabar sustancial y permanentemente los derechos adquiridos de los ciudadanos. Sobre todo, cuando tal menoscabo es tan sustancial y de tal naturaleza que no cumple con el grado de razonabilidad que exige el escrutinio racional que en el pasado hemos utilizado en estatutos socioeconómicos. Los casos de autos son claramente distinguibles de Domínguez Castro et al. v. E.L.A. I, 178 DPR 1 (2010), cert. denegado, Domínguez Castro v. Puerto Rico, 131 S.Ct. 152 (2010). En esta ocasión, el interés propietario de los empleados públicos así como la violación de sus derechos adquiridos son sustancialmente distintos en gravedad y naturaleza.
Soy consciente —como debemos serlo todos— de que el Gobierno se encuentra en una extremadamente difícil situación financiera. Sin embargo, pienso que si el barco está haciendo agua y existe la amenaza real de un naufragio, se lanzan por la borda primeramente las bagatelas. Luego, si es necesario, las cosas importantes y finalmente las cosas más valiosas. Para cualquier persona trabajadora la pensión por la cual ha trabajado toda su vida constituye su seguridad y posesión más valiosa. Por eso, y aunque estoy impedido de identificarlas, veo claramente muchas “bagatelas fiscales” y múltiples “cosas importantes” que precisarían ser arrojadas por la borda, antes que las valiosas pensiones de decenas de miles de nuestros empleados públicos.
I
La sentencia del Tribunal de Primera Instancia en el contexto de la Regla 10.2 de Procedimiento Civil
En los casos de autos no procedía la desestimación de las causas presentadas por los demandantes, pues no se cumplió con la jurisprudencia interpretativa de la Regla *84810.2 de Procedimiento Civil.(3) Contrario a lo resuelto por el Tribunal de Primera Instancia, las alegaciones de las demandas no dejaban de exponer una reclamación que justificara la concesión de un remedio. Me explico.
Sabido es que la Regla 10.2 de Procedimiento Civil, supra, concede el que un demandado presente una moción de desestimación contra cualquier alegación hecha en el cuerpo de una demanda. Sin embargo, tal desestimación procederá solo si “es evidente de las alegaciones de la demanda que algunas de las defensas afirmativas prosperará”. (Enfasis suplido).(4) Del mismo modo, en diversas ocasiones hemos expresado que ante una moción de desestimación las alegaciones hechas en la demanda tienen que ser interpretadas en conjunto, liberalmente y de la manera más favorable posible para la parte demandante.(5) Además, al resolver una moción de desestimación fundamentada en la Regla 10.2 de Procedimiento Civil, supra, el tribunal tiene la obligación de dar por ciertos y buenos todos los hechos bien alegados por el demandante.(6) Por último, y específicamente al evaluar la defensa de si la demanda deja de exponer una reclamación que justifique la concesión de un remedio, el tribunal deberá “determinar si a base de éstos [hechos] la demanda establece una reclamación plausible que justifique que el demandante tiene derecho a un remedio, guiado en su análisis por la experiencia y el sentido común”.(7)
En los casos de autos, los demandantes expusieron claramente en sus alegaciones no solo un menoscabo sustancial y permanente en sus pensiones, sino que especificaron y detallaron el grado de ese menoscabo, sobre todo con re*849lación a la cantidad en que se verían reducidas sus anualidades futuras. Sin embargo, y sin explicación aparente, el Tribunal de Primera Instancia obvió tales alegaciones. Conforme lo requiere la Regla 10.2 de Procedimiento Civil, supra, el foro de primera instancia debió —y podía con razonable facilidad— determinar que con la aprobación de la Ley Núm. 3-2013 todos los demandantes sufrirán al momento de su retiro una reducción promedio en sus pensiones de entre 30% a 45%. De esta forma, y guiado por un análisis racional y objetivo, el Tribunal de Primera Instancia hubiera tenido que concluir que tal reducción en las anualidades de los demandantes constituye un menoscabo no solo sustancial y permanente, sino demasiado drástico en comparación con la pensión que el Estado acordó que les honraría, a cambio de sus constantes aportaciones. United Auto., Aerospace, Agr. Implement Workers of America Intern. Union v. Fortuño, 633 F.3d 37, 45-46 (1er Cir. 2011). De manera que los demandantes alegaron claramente la forma, extensión y severidad en las que la Ley Núm. 3-2013 socavaba sus expectativas contractuales. Id.
Por otro lado, de las alegaciones de los demandantes también surgía claramente que estos expusieron alternativas no contempladas en la Exposición de Motivos ni en el resto del cuerpo de la Ley Núm. 3-2013, que constituían opciones más moderadas y que, al menos de su faz, parecerían viables para sustituir y así cuando menos mitigar el menoscabo a sus pensiones.(8) Como surge del texto de la propia Ley Núm. 3-2013, las enmiendas que esta establece tienen el propósito de “en conjunto [...] reducir [...] el déficit actuarial del Sistema [de Retiro y] el déficit de caja”,(9) y no de solventar el déficit total de la agencia. (Enfasis suplido). Por lo tanto, las distintas alternativas propuestas por los demandantes no debían evaluarse como un remedio *850total o una cornucopia a los problemas de la agencia, sino como un paliativo que podría sustituir parte de los ingresos que el Gobierno busca al menoscabar las pensiones de los demandantes. En síntesis, no es esencial el que se implanten todas las enmiendas aprobadas por la Ley Núm. 3-2013. Es posible identificar aquellas más drásticas al menoscabo de las pensiones de los servidores públicos y sustituirlas por alguna de las alternativas propuestas por los propios demandantes. U.S. Trust Co. of New York v. New Jersey, 431 US 1, 29-30 (1977) {“The determination of necessity can be considered on two levels. First, it cannot be said that total repeal of the covenant was essential; a less drastic modification would have permitted the contemplated plan without entirely removing the covenant’s limitations on the use of Port Authority revenues and reserves to subsidize commuter railroads”). (Enfasis suplido).
Por otro lado, en casos en los que se cuestiona la constitucionalidad de una ley por el menoscabo de obligaciones contractuales, el primer paso es determinar si la ley en cuestión ha provocado un menoscabo substancial del contrato entre las partes. De determinarse la existencia de un menoscabo substancial, entonces procede en segundo término determinar si tal menoscabo es razonable y necesario para conseguir un propósito importante para el Estado.(10) Ahora bien, cuando el Estado es una de las partes en tal contratación, nuestro escrutinio debe ser más riguroso, otorgándole menos deferencia a la acción legislativa en el análisis de razonabilidad y necesidad. U.S. Trust Co. of New York v. New Jersey, supra, pág. 26 (“complete deference to a legislative assessment of reasonableness and necessity is not appropriate because the State’s self-interest is at stake”). (Énfasis suplido).
En la evaluación de una moción de desestimación según la Regla 10.2 de Procedimiento Civil, supra, fundamentada en que la parte demandante dejó de exponer una causa de *851acción que amerite la concesión de un remedio, ninguna de las partes tiene que presentar prueba. Sin embargo, y como señalamos, lo que sí es necesario determinar es si los hechos alegados en la demanda establecen de su faz una reclamación que sea plausible y que, como tal, justifique que el demandante tiene derecho al remedio que busca o, al menos, a parte de este. Si se determina que los hechos alegados “no cumple [n] con el estándar de plausibilidad, el tribunal debe desestimar la demanda”.(11) Lo que se busca con el análisis de plausibilidad es el “no permitir que una demanda insuficiente proceda bajo el pretexto de que con el descubrimiento de prueba pueden probarse las alegaciones conclusorias”.(12)
Me parece evidente que en los casos de autos, las alegaciones de los demandantes eran claras y suficientes en el aspecto del drástico menoscabo producido por la Ley Núm. 3-2013, sobre todo en lo concerniente al Art. 5-103(6)(iii-iv) de la ley, que establece la dramática reducción de sus anualidades futuras. Asimismo, me parece que las alegaciones son plausibles en el aspecto de la viabilidad de opciones más moderadas para sustituir y cuando menos mitigar el menoscabo a las pensiones de los demandantes. Además, en sus alegaciones los demandantes enumeraron distintas alternativas que se le presentaron a la Asamblea Legislativa, de las cuales no surge de la exposición de motivos de la ley que alguna fuera considerada. U.S. Trust Co. of New York v. New Jersey, supra, págs. 30-31 (“[A] State is not completely free to consider impairing the obligations of its own contracts on a par with other policy alternatives”). (Énfasis suplido).
Por todo lo anterior, me parece que —al analizar las alegaciones de las demandas— el Tribunal de Primera Instancia no podía concluir que era evidente que los deman*852dantes no tenían una reclamación que justificara la concesión de un remedio. En este contexto y en casos como los de autos, son lapidarias las expresiones del Dr. José A. Cuevas Segarra:
En aquellos casos en los que esté involucrado un alto interés público, no debe desestimarse ninguna acción bajo la Regla 10.2 de Procedimiento Civil, por insuficiencia de las alegaciones, salvo en aquellas ocasiones en que no quepa duda que bajo ninguna situación de hechos que surja lógicamente en la demanda, es posible conceder un remedio adecuado, cualquiera que este sea. (Énfasis suplido).(13)
I—I HH
Las diferencias entre los casos de autos y el caso de la notoria Ley Núm. 7-2009
Ciertamente erró el foro de instancia al implicar que los casos de autos son similares al caso Domínguez Castro et al. v. E.L.A. I, supra, que interpretó la Ley Núm. 7-2009, Ley Especial Declarando Estado de Emergencia Fiscal y Estableciendo Plan Integral de Estabilización Fiscal para Salvar el Crédito de Puerto Rico. 3 LPRA see. 8791 et seq. Como adelanté, en esta ocasión el interés propietario de los empleados públicos así como la violación de sus derechos adquiridos son sustancialmente distintos en gravedad y naturaleza.
Primeramente, la controversia en el caso Domínguez Castro et al. v. E.L.A. I, supra, se circunscribía básicamente al despido de empleados públicos y principalmente al reclamo de que tales despidos constituían una violación a la cláusula constitucional del debido proceso de ley, en su aspecto sustantivo y procesal.(14) Mientras Domínguez Castro requería meramente un análisis según un escrutinio racional que justificara la acción del Estado, en los casos de *853autos se trata de un reclamo de una violación a la cláusula de no menoscabo de obligaciones contractuales en el que el propio Estado es el violador del contrato entre las partes, según ya lo determinó el foro de instancia. Como señalamos, tal realidad obliga a un escrutinio más riguroso, otorgándole menos deferencia a la acción legislativa en el análisis de razonabilidad y necesidad.
Además, es claro que si constituye una gran contrariedad la pérdida o disminución de nuestros salarios —como fue el caso Domínguez Castro— mucho peor es la virtual pérdida de una pensión de retiro, sobre todo cuando se ha trabajado y aportado a esta por décadas. Y es que la pérdida de un salario y la pérdida de una pensión no son sinónimos.(15) Mientras —como detallamos más adelante— un empleado público no ostenta un derecho adquirido en la permanencia de su empleo, sí lo tiene en cuanto a su pensión. Pero, además y en el aspecto real o pragmático, la persona que pierde un empleo —sobre todo en los años en que todavía puede ser más productivo— siempre tiene la expectativa de poder conseguir otro. En el ínterin, esa persona descansa en la seguridad de que llegada su vejez, lo que ha aportado a su pensión permanezca inalterado y le sirva para su retiro. Sin embargo, al que conserva su empleo, pero le alteran sustancialmente la anualidad que ha de recibir en el momento de su retiro, no le queda ni opción ni esperanza. Máxime, cuando, como ocurrirá con la mayoría de los empleados públicos a consecuencia de la ley aquí en controversia, si alguno decidiera renunciar y buscar un “nuevo horizonte” con mejores beneficios futuros, no podrá llevarse consigo las aportaciones realizadas a su plan de retiro.(16)
En segundo lugar, en Domínguez Castro, ante el reclamo de los empleados públicos sobre la ilegalidad de sus despidos por la retroactividad de la Ley Núm. 7, no les *854reconocimos un derecho adquirido, pues no existe ley alguna que expresa o implícitamente le reconozca a un empleado público un derecho irrestricto a no ser despedido, sino todo lo contrario.(17) En ese sentido, señalamos que “no cabe hablar de un derecho adquirido a la retención o a no ser cesanteado de un empleo en el servicio público, pues se encuentra ausente el elemento del amparo de una ley anterior [del Art. 3 del Código Civil] que hubiese concedido tal derecho”.(18) Sin embargo, es claro que los demandantes de los casos de autos sí tienen en sus respectivos contratos de pensiones, no solo un derecho o interés propietario, sino un derecho adquirido mediante la Ley Núm. 447 de 15 de mayo de 1951, según enmendada, 3 LPRA sec. 761 et seq., la Ley Núm. 1 de 16 de febrero de 1990, según enmendada, 3 LPRA sec. 766b et seq., y la Ley Núm. 305 de 24 de septiembre de 1999, según enmendada, 3 LPRA see. 761 et seq. Como señalamos en Domínguez Castro, “no todo derecho o interés propietario es a su vez un derecho adquirido”.(19) Pero los demandantes de los casos de autos, al juramentar como empleados públicos lo hicieron al amparo de unas condiciones contractuales definidas claramente por la ley vigente al momento de su juramentación, lo que constituye claramente un derecho adquirido. Así, recientemente, en Pagán Santiago et al. v. ASR, 185 DPR 341, 354 (2012), señalamos que “la Asamblea Legislativa no tiene facultad para menoscabar ese derecho adquirido de naturaleza contractual, o que ha sido ‘comprado’, por ese participante mediante aportaciones compulsorias provenientes de su salario”.
Por otro lado, en Domínguez Castro et al. v. E.L.A. I, supra, el reclamo de menoscabo contractual que se hizo fue en función, no de las pensiones de retiro de los empleados públicos, sino del incumplimiento temporero de los conve*855nios colectivos de aquellos servidores públicos unionados por virtud de la Ley Núm. 45 de 25 de febrero de 1998.(20) Específicamente, indicamos que era “meritorio señalar que la legislación impugnada es producto de una situación de emergencia y la suspensión de las disposiciones de los convenios que no sean conformes a la referida Ley Núm. 7 es temporera”. (Enfasis suplido).(21) Como ya expresamos, el contrato que se menoscaba en los casos de autos es la seguridad de las pensiones de retiro de los demandantes y la vigencia de tal menoscabo no es temporera sino permanente.
Es claro entonces, que la naturaleza de la causa de acción y el reclamo constitucional en el caso de la Ley Núm. 7 y los casos de autos son muy distintos. Domínguez Castro era un caso de despidos, alegada violación de debido proceso de ley y menoscabo temporero (en aquellos empleados unionados) de sus convenios colectivos. En los casos de autos nos enfrentamos al reclamo de un menoscabo sustancial y permanente de un contrato entre el Gobierno de Puerto Rico y los empleados públicos,(22) muchos de los cuales han laborado por décadas en el servicio público, haciendo sus aportaciones con una expectativa muy distinta a lo que ahora la Ley Núm. 3-2013 les anuncia.
Ciertamente y como ya señalamos, los beneficios provenientes de planes de pensión claramente pueden ser más importantes que el salario de un empleado.(23) De hecho, como implicamos en el normativo Bayrón Toro v. Serra, 119 DPR 605 (1987), la persona que se convierte en empleado de gobierno con la expectativa de hacer una carrera en el servicio público, no lo hace necesariamente por el salario que recibirá. Ya “ [a] nteriomente hemos reconocido los sacrificios económicos que conlleva la dedicación al servicio *856público”.(24) Así, señalamos que “[s]ólo si se ofrecen beneficios marginales tales como un atractivo plan de retiro, puede el Gobierno atraer personal competente, que de otra forma ofrecería sus servicios a la empresa privada”.(25) Además, en Bayrón Toro señalamos que “[e]s indiscutible que cuando alguien acepta una oferta de empleo toma en consideración y descansa en la seguridad que le brinda el sistema de retiro que le ofrece dicho empleo”.(26) Ciertamente, estos casos no son Domínguez Castro et al. v. E.L.A. I.
HH 1—i hH
El Sistema de Retiro de los Empleados del Gobierno de Puerto Rico ha confrontado un déficit actuarial desde sus mismos inicios. Basta con citar la propia Exposición de Motivos de la Ley Núm. 3-2013, al describir la primera de las causas principales de la crisis:
Desde sus comienzos, el Sistema no contó con las aportaciones adecuadas para mantener un nivel saludable de solvencia. El Sistema fue diseñado como un sistema de beneficio definido cuyas pensiones estaban fijadas por ley y no dependían del monto de las aportaciones que hicieran los patronos o los empleados. La ley que creó el Sistema estableció un nivel de aportación que no estaba ligado a los beneficios que tenía que pagar el Sistema y tampoco se ajustaba a los cambios económicos o actuariales que afectaban el nivel de beneficios. (Énfasis suplido).(27)
Como vemos, el fundamento de la crisis del Sistema de Retiro estriba en un problema de diseño: la ley que creó el Sistema estableció un nivel de aportación que no estaba *857ligado a los beneficios que este tenía que pagar y tampoco se ajustaba a los cambios económicos o actuariales que afectaban el nivel de beneficios.
A este problema base se sumó el incumplimiento por parte de las distintas agencias con las aportaciones suplementarias requeridas; la aprobación de varias leyes entre 1960 y el presente que aumentaron los beneficios, pero que no contaron con aportaciones adicionales, y el hecho de que el gobierno nunca realizó la aportación patronal recomendada por los actuarios para poder cubrir los beneficios de retiro.(28) De manera que al cuestionarnos: ¿cuándo ha estado bien financieramente nuestro Sistema de Retiro? La contestación es nunca. O, expuesto de otra forma, ¿desde cuándo ha existido el déficit del Sistema de Retiro? La contestación, por la admisión que hace la propia Ley Núm. 3-2013, es siempre. La conclusión entonces es que el problema deficitario siempre ha existido; siempre ha sido el mismo, pero se ha ido agravando por las propias acciones incorrectas del Gobierno.
Con relación a lo anterior, me parece justo lo implicado por el Tribunal Supremo federal al final de la opinión en U.S. Trust Co. of New York v. New Jersey, supra, pág. 32, y que ha sido adoptado en otras jurisdicciones. Y es que, de determinarse que el problema que el Estado busca resolver con la implantación del estatuto que menoscaba el contrato en cuestión existía al momento cuando se incurrió en la obligación, tal menoscabo no puede determinarse como razonable y necesario. Massachusetts Community College Council v. Com., 649 N.E.2d 708, 713 (1995). (“An impairment is not a reasonable one if the problem sought to be resolved by an impairment of a contract existed at the time the contractual obligation was incurred”). (Enfasis suplido). Incluso, si los cambios ocurridos a través de los años hasta el momento en que se propuso la medida que menoscaba el contrato, obedecen a un incremento de lo que *858en esencia es el mismo problema habido cuando se contrató originalmente, el menoscabo es irrazonable e innecesario. Carlstrom v. State, 694 P.2d 1, 5 (Wash. 1985) (“The United States Supreme Court has observed that if the state is aware of problems when it enters into a contract, the state cannot impair those contracts on the basis of problems that have only changed in degree rather than in kind”). (Enfasis suplido). No me cabe la menor duda de que esta es la situación en los casos de autos.
IV
En Bayrón Toro señalamos que “[l]a solución más adecuada es aquella que nos permita armonizar, por un lado, el interés de proteger los derechos de los participantes y, por el otro, el de permitirle al Estado la libertad de adoptar cambios que garanticen la estabilidad y solvencia del sistema”.(29) Ante un claro menoscabo no solo sustancial sino drástico de los beneficios de los demandantes, específicamente por la reducción de sus anualidades futuras, se imponía que el foro de instancia encontrara ese balance entre las necesidades reales del Sistema de Retiro y los derechos de los empleados. Entiendo que al final, tal balance hubiera requerido que el foro primario preservara la constitucionalidad de la inmensa mayoría de las enmiendas establecidas por la Ley Núm. 3-2013. Sin embargo, creo que la reducción en las anualidades futuras de los empleados públicos, en el grado que fue impuesta, no pasa el cedazo constitucional por constituir una medida demasiado drástica, ante la existencia de posibles opciones más moderadas que sirven el mismo fin.
Advierto en la decisión que hoy toma la Mayoría de esta Curia lo que me sospecho es una actuación cuidadosa, recelosa, suspicaz ante la amenaza de una degradación del *859crédito del País. Sin embargo, con nuestra decisión permitimos que a nuestros servidores públicos, víctimas inocentes de los errores del Estado, se les quite tanto sin que se les conceda nada.
Por todo lo anterior, respetuosamente disiento.
Oregon State Police Officers’ Ass’n v. State, 323 Or. 356, 374 (1996).
Para los policías, solo estaría disponible la segunda opción porque estos están obligados a retirarse a los 58 años de edad.
32 LPRA Ap. V.
Trans-Oceanic Life Ins. v. Oracle Corp., 184 DPR 689, 701 (2012).
Colón v. Lotería, 167 DPR 625, 649 (2006).
íd.
R. Hernández Colón, Derecho procesal civil, 5ta ed., San Juan, Ed. Lexis-Nexis, 2010, pág. 268.
Véanse alegaciones 4.58 y 4.59 de la Petición presentada ante el Tribunal de Primera Instancia.
Véase la Exposición de Motivos de la Ley Núm. 3-2013.
U.S. Trust Co. of New York v. New Jersey, 431 US 1 (1977).
Hernández Colón, op. cit., pág. 268. Véase, además, Ashcroft v. Iqbal, 556 US 662 (2009).
íd.
J.A. Cuevas Segarra, Tratado de derecho civil, 2da ed., San Juan, Pubs. JTS, 2011, T. II, pág. 529.
Domínguez Castro et al. v. E.L.A. I, 178 DPR 1, 38-48 (2010).
Oregon State Police Officers’ Ass’n v. State, 323 Or. 356, 374 (1996).
Véase Art. 5-110 de la Ley Núm. 3-2013.
Domínguez Castro et al. v. E.L.A. I, supra, págs. 67-70.
íd., pág. 69.
íd., pág. 68.
3 LPRA sec. 1451 et seq.
Domínguez Castro et al. v. E.L.A. I, supra, págs. 89-90.
Pagán Santiago et al. v. ASR, 185 DPR 341 (2012).
Oregon State Police Officers’ Ass’n v. State, supra; Rose City Transit Co. v. City of Portland, 271 Or. 588 (1975).
Bayrón Toro v. Serra, 119 DPR 605, 616 (1987).
íd.
íd.
Exposición de Motivos de la Ley Núm. 3-2013, pág. 5.
íd.
Bayrón Toro v. Serra, supra, pág. 618. | 01-03-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1009996/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-1966
CARL G. ELY; GILDA ELY, Administrators of the
Estate of Carl G. Ely, Jr., deceased,
Plaintiffs - Appellants,
versus
FORTIER LOSS CONTROL CONSULTANTS,
INCORPORATED,
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap. Glen M. Williams, Senior
District Judge. (CA-02-25-2)
Submitted: January 29, 2003 Decided: March 12, 2003
Before WIDENER and NIEMEYER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Carl E. McAfee, MCAFEE LAW FIRM, P.C., Norton, Virginia, for
Appellants. Donald W. Huffman, HUFFMAN & NIXON, P.C., Roanoke,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Carl G. Ely and Gilda Ely appeal the district court’s order
granting Fortier Loss Control Consultants’ motion to dismiss their
wrongful death action. We have reviewed the record and find no
reversible error. We note that the facts relied on by the district
court in reaching its conclusion were contained in the complaint.
Based on those facts, it is clear that Plaintiffs’ decedent was
contributorily negligent, and his negligence was the proximate
cause of his fatal accident. Accordingly, we affirm on the
reasoning of the district court. See Ely v. Fortier Loss Control
Consultants, Inc., No. CA-02-25-2 (W.D. Va. Aug. 2, 2002). 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/1869550/ | 589 F.Supp.2d 39 (2008)
UNITED STATES of America,
v.
Wilford OLIVER, Defendant.
Criminal Action No. 00-157-13(RCL).
United States District Court, District of Columbia.
December 15, 2008.
Arvind Kumar Lal, Thomas S. Rees, United States Attorney's Office, Washington, DC, for Plaintiff.
Cynthia Katkish, William Jackson Garber, Washington, DC, for Defendant.
MEMORANDUM & ORDER
ROYCE C. LAMBERTH, Chief Judge.
I. INTRODUCTION
Now before the Court is defendant Oliver's motion [2372] pursuant to 18 U.S.C. 3582(c)(2) to reduce his sentence based on amendments to the United States Sentencing Guidelines. Upon consideration of the motion, the United States opposition [2381], applicable law, and the entire record herein, the motion will be DENIED.
II. FACTUAL AND PROCEDURAL BACKGROUND
Petitioner was involved in a large drug ring operating out of the D.C. area. On July 31, 2003, the defendant pleaded guilty to a criminal information charging him with conspiracy to distribute and to possess with intent to distribute fifty grams or more of "crack" cocaine. He did so pursuant to a Federal Rule of Criminal Procedure 11(c)(1)(C). Since the time of his sentence, the United States Sentencing Commission has lowered the applicable sentencing guidelines for crack cocaine offenses and made the guidelines retroactive. U.S.S.G., Supplement to Appendix C, Amendments 706, 711 (Nov. 1, 2007); 18 U.S.C. § 3582(c)(2). Accordingly, defendant has filed a pro se motion for a reduction in his sentence. Because his request is contrary to the 18 U.S.C. § 3582(c)(2), the rules of criminal procedure, the sentencing guidelines, and applicable case law, his motion will be denied.
*40 III. ANALYSIS
The place to start is with the statute that supposedly confers jurisdiction on this Court to reduce the defendant's sentence. 18 U.S.C. § 3582(c)(2) states that:
[I]n the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment
...
(emphasis added). However, a plea agreement pursuant to Rule 11(c)(1)(C) is not a sentence "based on a sentencing range" that has been set by the Sentencing Commission. The D.C. Circuit has stated that "[a] sentence arising from a Rule 11(e)(1)(C)[1] plea, however, does not result from the determination of an appropriate guidelines offense level, but rather from the agreement of the parties: an agreement that is binding on the court once it is accepted by the court." United States v. Heard, 359 F.3d 544, 548 (D.C.Cir.2004) (citing Fed.R.Crim.P. 11(e)(1)(C)). Accordingly, 18 U.S.C. § 3582(c)(2) has no application to the present case.
Moreover, as noted by the D.C. Circuit, the rule of criminal procedure under which Oliver entered his plea does not allow for the Court to modify his sentence. Federal Rule of Criminal Procedure 11(c)(1)(C) states that an agreement on a sentence under this rule "binds the court once the court accepts the plea agreement." Certainly, the sentencing guidelines may have some bearing on what sentence a defendant decides to plead to because they help inform the defendant of what sentence he could be facing in the event that he decides to go to trial. Nevertheless, as noted by the rule, the ultimate agreement is a contract signed by the parties and is not a result of the Court consulting the sentencing guidelines and sentencing the defendant accordingly. Indeed, when a Court accepts a Rule 11(c)(1)(C) plea it forgoes that opportunity. As a result, the Court has no power to modify the sentence under the Federal Rules of Criminal Procedure.
The sentencing guidelines themselves also counsel against the defendant's request. Section 1B1.10 of the sentencing guidelines, which governs retroactively lowering a defendant's sentence, states that a court may only reduce a defendant's sentence as provided by 18 U.S.C. § 3582(c)(2). In other words, the sentencing guidelines do not confer on defendants additional avenues for challenging a sentence. And, as noted above, § 3582(c)(2) itself only allows for a sentencing reduction if the defendant was originally sentenced under the guidelines. Cf. United States v. Profeta, No. 01-3030, 2001 WL 1488668, at *1 (D.C.Cir.2001) (per curiam) (stating that if a defendant is sentenced to a statutorily mandated minimum sentence the district court has no authority to reduce a sentence under 18 U.S.C. § 3582(c)(2)).
Finally, other federal courts have thus far[2] rejected similar motions in the specific *41 context of the retroactive crack cocaine amendments to the sentencing guidelines. See, e.g., United States v. Grigsby, 560 F.Supp.2d 1066, 1067-68 (D.Colo.2008); United States v. Johnson, No. 05-40107-01-RDR, 2008 WL 4758581, *1 (D.Kan. Oct. 27, 2008); United States v. Fonville, No. 01-1015-LRR, 2008 WL 2953610, *2 (N.D.Iowa July 29, 2008); United States v. Tindall, No. 04-00031-2, 2008 WL 2518546, *1 (W.D.Va. June 19, 2008); United States v. Clayborn, No. 05-51-01, 2008 WL 2229531, *2 (M.D.Pa. May 28, 2008); United States v. Gordon, No. 97-24-FHS, 2008 WL 901911, *1 (E.D.Okla. Mar. 31, 2008). Those courts, like this one, had no trouble rejecting similar motions for the reasons articulated above.
IV. CONCLUSION AND ORDER
Because the defendant was sentenced pursuant to an agreement under Federal Rule of Criminal Procedure 11(c)(1)(C), this Court has no power to modify his sentence under 18 U.S.C. 3582(c)(2). Accordingly, it is hereby
ORDERED that defendant's motion [2372] is denied.
SO ORDERED.
NOTES
[1] Rule 11(e)(1)(C) has since been renumbered as 11(c)(1)(C).
[2] Amendment 706 of the Sentencing Guidelines generally reduces by two levels the offense level that is applicable to cocaine base offenses. The Commission set March 3, 2008 as the date that Amendment 706 could be applied retroactively. As a result, decisions on this precise issue are of recent vintage. However, previous decisions addressing this issue with regard to other amendments to the sentencing guidelines have reached the same conclusion. See, e.g., United States v. Peveler, 359 F.3d 369, 379 (6th Cir.2004) ("[T]he plain language of the current version of Rule 11(e)(1)(C), now Rule 11(c)(1)(C), generally precludes the district court from altering the parties' agreed sentence under 18 U.S.C. § 3582(c). This conclusion applies despite the retroactivity of a subsequent amendment to a relevant guidelines utilized to determine the defendant's sentence."). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3453056/ | Judgment of conviction for violation of the prohibition law, imposing a fine of $100 and 30 days in jail.
Appeal denied; judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2892826/ | NO. 07-03-0398-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
FEBRUARY 1, 2005
______________________________
DAVID CHILDERS AND WIFE, JEANETTE CHILDERS, APPELLANTS
V.
DR. GEORGE R. WALTERS, M.D., ET AL., APPELLEES
_________________________________
FROM THE 72
nd
DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2002-518,673; HONORABLE J. BLAIR CHERRY, JR., JUDGE
_______________________________
Before QUINN and REAVIS, JJ. and BOYD, S.J.
(footnote: 1)
MEMORANDUM OPINION
David Childers and wife Jeanette Childers appeal the trial court’s order granting the motion for summary judgment filed by appellees George R. Walters, M.D.,
et al.
, in response to their health care liability claim. By a sole issue, the Childers contend the trial court erred in granting Walters,
et al
.’
s
motion for summary judgment.
(footnote: 2) We affirm.
In the summer of 1997, David Childers became aware of LASIK surgery and scheduled an appointment with Dr. Walters at the Lubbock Regional Eye Center. Childers did not see Dr. Walters during this visit and was instead examined by a staff member and informed he was not a good candidate for LASIK surgery because of the poor condition of his eyes. According to his deposition, he could not recall the name of the person who examined him or whether that person was a doctor. In 1999, after attending a seminar given by Dr. Walters on LASIK technology, Childers scheduled an appointment for September 29 for an examination and evaluation. Childers was examined by technician Jim Hudak and did not see Dr. Walters during that visit.
Doctor Walters performed LASIK surgery on Childers on Friday, October 8, 1999. According to Childers, while he was in a recovery room, Dr. Walters told him his surgery “went okay,” but added there was a possibility he was allergic to the anesthetic drops which would delay the healing process. The following Monday and Tuesday, Childers was seen by Hudak for his post-surgery exams and complained his vision was still blurred. He was told his vision had not improved because the cells had not grown back due to the allergic reaction to the drops. Nevertheless, he was instructed to continue using the drops and told he would be contacted from someone in the Amarillo office. Childers and his wife drove to Amarillo where he was examined by Dr. Tom Baker and then returned to Lubbock.
Childers did not see Dr. Walters again until approximately two weeks after the surgery and was again told his recovery was slow due to the allergic reaction. During the months following the surgery, Dr. Walters became concerned and suspected Childers was suffering from dry eye syndrome. According to Dr. Walters’s affidavit, on April 18, 2000, Childers came to his office to schedule an appointment and expressed a loss in confidence and requested a second opinion.
A friend and colleague of Childers’s recommended he see Dr. John B. Bowen, O.D., for a second opinion. On May 4, 2000, he was examined by Dr. Bowen, who, without criticizing Dr. Walters, stated he had never seen results like Childers’s from laser surgery. Concerned with Childers’s dissatisfaction, Dr. Walters recommended he see Dr. Henry Gelender, a cornea expert, for debridement–manual removal of epithelial cells. On June 1, 2000, Dr. Gelender diagnosed Childers with basement membrane corneal dystrophy and also performed debridement in Childers’s left eye followed by a repeat treatment on July 24, 2000. Childers was treated by Dr. Gelender until November 2000, and the summary judgment evidence shows his visual acuity improved while under Dr. Gelender’s care. Doctor Gelender recommended that Childers return to Dr. Walters for follow-up treatment. He also concluded that most of Childers’s problems were related to the dystrophy and not the allergic reaction to the anesthetic drops.
In July 2001, Dr. Walters referred Childers to Dr. Rhea L. Siatkowski in Oklahoma City. After only one visit, she determined Childers could be treated in Lubbock by Dr. David McCartney. Doctor McCartney concluded that Childers had not been a good candidate for LASIK surgery. Childers became a regular patient of Dr. McCartney’s and his last appointment with Dr. Walters was July 13, 2001.
Pursuant to section 4.01 of the Texas Medical Liability and Insurance Improvement Act,
(footnote: 3) on March 1, 2002, Dr. Walters was notified in writing that Childers was asserting a health care liability claim against him. Suit was filed on July 18, 2002, and Dr. Walters filed his answer alleging, among other matters, the two year statute of limitations as an affirmative defense.
See
Art. 4590i, § 10.01. Upon completion of discovery, Dr. Walters filed a motion for summary judgment on the sole ground of limitations, which the trial court granted.
Standard of Review
In reviewing a summary judgment, this Court must apply the standards established in Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985):
1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.
2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.
3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.
For a party to prevail on a motion for summary judgment, he must conclusively establish the absence of any genuine question of material fact and that he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). A movant must either prove all essential elements of his claim, MMP, Ltd. v. Jones, 710 S.W.2d 59 (Tex. 1986), or negate at least one essential element of the non-movant's cause of action. Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Once the movant has established a right to summary judgment, the non-movant has the burden to respond to the motion for summary judgment and present to the trial court any issues that would preclude summary judgment. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex. 1979); Barbouti v. Hearst Corp., 927 S.W.2d 37, 64 (Tex.App.--Houston [1st Dist.] 1996, writ denied).
Issues which the non-movant contends preclude the granting of a summary judgment must be expressly presented to the trial court by written answer or other written response to the motion and not by mere reference to summary judgment evidence. McConnell v. Southside School Dist., 858 S.W.2d 337, 341 (Tex. 1993). Issues not expressly presented to the trial court in writing shall not be considered on appeal as grounds for reversal. Tex. R. Civ. P. 166a(c).
Childers contends the trial court erred when it granted Dr. Walters’s motion for summary judgment. Specifically, he contends (1) all claims asserted by him were viable and not time barred by article 4590i, section 10.01, and (2) his claims were viable at the time they were brought due to fraudulent concealment. We disagree.
Health care liability claims filed prior to September 1, 2003, are governed by article 4590i of the
Texas Medical Liability and Insurance Improvement Act.
(footnote: 4) The Act provides
that suit be brought within two years of the occurrence of the breach or tort or the date the medical or health care treatment that is the subject of the claim or the hospitalization for which the claim is made is completed. Art. 4590i, § 10.01. When the precise date of the negligence can be ascertained, limitations begins to run on that date and subsequent treatment is immaterial. Husain v. Khatib, 964 S.W.2d 918, 919 (Tex. 1998). Childers does not contend that follow-up care caused any injuries and he did not present any summary judgment evidence that Dr. Walters was negligent in his follow-up care.
See
Chambers v. Conaway, 883 S.W.2d 156, 158 (Tex. 1993). Thus, the ascertainable date of the surgery,
i.e.
, October 8, 1999, began the limitations period. Childers was required to file suit by October 8, 2001, unless he could establish the limitations period had been tolled.
See
Art. 4590i, § 4.01(c) (providing that limitations is tolled for 75 days following the giving of notice as provided in the Act).
See also
Borderlon v. Peck, 661 S.W.2d 907, 909 (Tex. 1983).
By his response to Walters’s motion for summary judgment, Childers alleged fraudulent concealment. During his deposition he testified he believed Dr. Gelender and Dr. Siatkowski were in “cahoots” with Dr. Walters. Although Dr. Walters owed a duty to discover a negligent act or that an injury had occurred and a failure to disclose constitutes fraudulent concealment, the estoppel effect ended when Childers learned of facts, conditions, or circumstances that would have caused a reasonably prudent person to make inquiry, which, if pursued, would lead to the discovery of the concealed cause of action.
See
Clements v. Conard, 21 S.W.3d 514, 521 (Tex.App.--Amarillo 2000, pet. denied); Thames v. Dennison, 821 S.W.2d 380, 384 (Tex.App.--Austin 1991, writ denied).
According to the evidence, in April 1990, when Childers lost confidence in Dr. Walters, he sought a second opinion from Dr. Bowen on May 4, 2000, on advice from a colleague and without Dr. Walters’s recommendation. Dr. Walters also provided for other opinions and made arrangements for Childers to see Dr. Gelender and Dr. Siatkowski. Although Childers contended the doctors acted in concert, he did not produce any evidence to support his suspicion. To the contrary, Childers testified that Dr. Bowen was not critical of Dr. Walters’s performance of the surgery, but only surprised at the result. Childers cannot rely on the tolling doctrine of fraudulent concealment after he admitted a loss in confidence and sought a second opinion on his own initiative in April 2000.
See
Velsicol Chemical Corp. v. Winograd, 956 S.W.2d 529, 531 (Tex. 1997).
Although Childers gave notice of his claim on March 1, 2002, as required by section 4.01(a) of the Act, which would have tolled the limitations period for 75 days per sub-paragraph (c), we conclude the tolling provision did not apply because suit was not filed until July 18, 2002, well beyond the limitations period.
See
De Checa v. Diagnostic Center Hosp., Inc., 852 S.W.2d 935, 937 (Tex. 1993); Simmons v. Healthcare Centers of Texas, Inc., 55 S.W.3d 674, 677, (Tex-App.--Texarkana 2001, no pet.). The Childers’ sole issue is overruled.
Accordingly, the judgment of the trial court is affirmed.
Don H. Reavis
Justice
FOOTNOTES
1:John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
2:See
Malooly Bros., Inc. v. Napier, 419 S.W.2d 119, 121 (Tex. 1970).
3:See
former Tex. Rev. Civ. Stat. Ann. art. 4590i, now codified at Tex. Civ. Prac. & Rem. Code Ann. §§ 74.001 - 74.507 (Vernon Pamph. Supp. 2004-05).
See also
Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 864, 866.
4:Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 23.02(d), 2003 Tex. Gen. Laws 864, 899. | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3812071/ | I concur in the conclusion, but am doubtful as to the reasoning of the majority opinion, which is based upon the assumption that the claim of Hall against Doughty is barred by the statute of limitations. It is my view that the petition does not show that the claim is barred, and that the right of Hall to get a money judgment accrues only when Hall shall have paid the debt or any part thereof. Under our decisions, as between Hall and Doughty, the latter became the principal debtor and Hall his surety. Beardsley v. Stephens,134 Okla. 243, 273 P. 240; Page v. Hinchee, 174 Okla. 537, 51 P.2d 487. The petition being silent as to whether Hall could have maintained an action against Doughty for indemnity by reason of the provisions of 12 O. S. 1941 § 1108, we must assume that the right of Hall to secure a money judgment (not to compel payment by an equitable proceeding as authorized in 15 O. S. 1941 § 380, and in 12 O. S. 1941 § 1107) against Doughty exists by reason of the provisions of 15 O. S. 1941 § 381, under which the cause of action for reimbursement accrues when and only when Hall shall have paid the mortgage debt or any part thereof. Miller v. National Surety Co., *Page 262 159 Okla. 76, 14 P.2d 228. Since it seems clear that the petition does not disclose on its face that Hall's claim against Doughty for reimbursement is barred, it follows that the petition does not disclose that the right of the Commissioners of the Land Office to a money judgment against Doughty is barred, and the demurrer to the petition should have been overruled.
I think there is a very serious question as to whether the right of the Commissioners of the Land Office to recover a money judgment against Doughty is superior to the right of Doughty, and if Hall's claim for reimbursement against Doughty should be barred by limitations or laches, or lost by reason of any other fact, the right of the state, which is derivative only, would probably likewise be barred or lost. See Page v. Hinchee, above; 41 C. J. 754; 19 Rawle C. L. 378; 37 Am. Jur. 335, § 1016; 21 A. L. R. at 488, annotation. I doubt if the state's right is greater than the right of any other mortgagee would be under like circumstances. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/829179/ | Order Michigan Supreme Court
Lansing, Michigan
March 3, 2011 Robert P. Young, Jr.,
Chief Justice
Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
141255(55) Diane M. Hathaway
Mary Beth Kelly
Brian K. Zahra,
Justices
PROGRESSIVE MICHIGAN INSURANCE
COMPANY,
Plaintiff-Appellant,
SC: 141255
v COA: 287505
Kent CC: 07-003903-CK
WILLIAM SMITH and SHERI HARRIS,
Defendants,
and
SCOTT MIHELSIC and ANDREA MIHELSIC,
Defendants-Appellees,
and
PIONEER STATE MUTUAL INSURANCE
COMPANY,
Intervening Defendant.
______________________________________
On order of the Chief Justice, the motion by plaintiff-appellant for extension of the
time for filing their brief and appendix is considered and, it appearing the brief and
appendix were filed February 24, 2011, the time for filing is extended to that date.
I, Corbin R. Davis, 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.
March 3, 2011 _________________________________________
Clerk | 01-03-2023 | 03-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2980760/ | February 26, 2015
JUDGMENT
The Fourteenth Court of Appeals
VALENTINA RAMIREZ, Appellant
NO. 14-15-00022-CV V.
KATHRYN AUMAN, Appellee
________________________________
Today the Court heard the parties’ joint motion to dismiss the appeal from
the judgment signed by the court below on October 10, 2014. Having considered
the motion and found it meritorious, we order the appeal DISMISSED.
We further order that each party shall pay its costs by reason of this appeal.
We further order that mandate be issued immediately.
We further order this decision certified below for observance. | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3110786/ | NO. 07-10-00120-CV; 07-10-00121-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
--------------------------------------------------------------------------------
MARCH 9, 2011
--------------------------------------------------------------------------------
HARVEY FLOYD HODO, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
--------------------------------------------------------------------------------
FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY;
NO. 18700-A, 18765-A; HONORABLE RICHARD DAMBOLD, JUDGE
--------------------------------------------------------------------------------
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Harvey Floyd Hodo, an inmate proceeding pro se, perfected appeal from two trial court orders, dated March 23, 2010, in each referenced cause, which, pursuant to section 501.014(e) of the Texas Government Code, authorized the Texas Department of Criminal Justice, Institutional Division, to withhold from Hodo's inmate trust account the following amounts to pay for costs associated with his criminal convictions: (1) $1,586.50 in cause number 18700-A; and (2) $486.50 in cause number 18765-A. Hodo filed pro se notices of appeal on April 6, 2010, challenging the withdrawal orders. On June 17, 2010, this Court abated the appeals for 180 days to allow Hodo time to take such action as is necessary to (1) obtain the necessary documentation of the underlying court orders; (2) compare the underlying court order to the withdrawal orders; (3) file appropriate motions to modify, correct, or rescind the withdrawal orders; (4) present those motions to the trial court; (5) schedule any necessary hearing; and (6) obtain from the trial court final appealable orders addressing those motions. See Tex. R. App. P. 27.2; see also Iacono v. Lyons, 6 S.W.3d 715 (Tex.App.--Houston [1st Dist.] 1999, no pet.) (finding appeal prematurely filed and abating and remanding to permit the jurisdictional defect to be cured).
On January 10, 2011, this Court received a supplemental clerk's record in these appeals that includes a November 12, 2010 Order on Defendant's Motion to Rescind the Withdrawal Notification Orders, which modified the March 23, 2010 withdrawal orders to omit the assessment of attorney's fees and "Juvenile Crime and Delinq. Fee." As a result of these modifications, the trial court recalculated the costs associated with Hodo's criminal convictions to be $1,286.00 in cause number 18700-A; and $286.00 in cause number 18765-A. The trial court further entered Amended Orders to Withdraw Funds reflecting the modifications.
These appeals were reinstated on January 10, 2011. On January 11, 2011, Hodo was notified that, by order of this Court, his appellate brief was due to be filed on or before February 10, 2011. Hodo did not file his brief nor request an extension of time to file his brief by this date. Consequently, by letter dated February 18, 2011, the Clerk of this Court notified Hodo that his brief was past due and that failure to file his brief with this Court on or before February 28, 2011, could result in dismissal of his appeal pursuant to Rule 38.8(a) of the Texas Rules of Appellate Procedure. Hodo has neither filed his brief nor responded to this Court's February 18, 2011 correspondence.
Accordingly, we now dismiss this appeal for want of prosecution and failure to comply with a notice from the Clerk of this Court requiring a response or other action in a specified time. See Tex. R. App. P. 38.8(a)(1), 42.3(b), (c).
Mackey K. Hancock
Justice | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/4539926/ | 06/08/2020
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 18-0328
No. DA 18-0328
STATE OF MONTANA,
Plaintiff and Appellee,
v.
JUAN ANASTASIO RODRIGUEZ,
Defendant and Appellant.
ORDER
Upon consideration of Appellee’s motion for a 14-day extension of time,
and good cause appearing therefor,
IT IS HEREBY ORDERED that Appellee is granted an extension of time to
and including June 22, 2020, within which to prepare, serve, and file its response
brief.
JMK Electronically signed by:
Mike McGrath
Chief Justice, Montana Supreme Court
June 8 2020 | 01-03-2023 | 06-08-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1028896/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-6090
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARK ANTHONY JACOBS,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (2:97-cr-00136-WLO-1)
Submitted: May 21, 2009 Decided: May 29, 2009
Before MOTZ, TRAXLER, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mark Anthony Jacobs, Appellant Pro Se. Robert Michael Hamilton,
Angela Hewlett Miller, Assistant United States Attorneys,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mark Anthony Jacobs appeals the district court’s order
denying his motion for a reduction of sentence pursuant to 18
U.S.C. § 3582(c) (2006). We have reviewed the record and find
no reversible error. Accordingly, we affirm on the reasoning of
the district court. United States v. Jacobs, No. 2:97-cr-00136-
WLO-1 (M.D.N.C. Dec. 12, 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/2889639/ | NO. 07-03-0182-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
DECEMBER 21, 2004
______________________________
REGINA LEA REED, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 64TH DISTRICT COURT OF HALE COUNTY;
NO. A14585-0208; HONORABLE ROBERT W. KINKAID, JR., JUDGE
_______________________________
Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINION
Appellant Regina Lea Reed appeals from her conviction and sentence for
possession of a controlled substance by fraud. We affirm.
Appellant pled guilty to a charge of possession of a controlled substance by fraud.
She was admonished, both orally and in writing, by the trial court. Appellant confirmed that
she understood the written admonishments. The court questioned appellant to confirm that
she was competent to enter the plea, that the plea was being given knowingly and
voluntarily and that she understood the rights that she was waiving by pleading guilty. The
court accepted the plea and found appellant guilty.
There was no plea bargain as to punishment. Appellant waived a jury and the court
heard evidence regarding punishment. Appellant was sentenced to incarceration in the
Texas Department of Criminal Justice, Institutional Division, for five years.
Appointed appellate counsel has filed a Motion to Withdraw as Counsel and a Brief
in Support thereof. In support of the Motion to Withdraw, counsel has certified that, in
compliance with Anders v. California, 386 U.S. 738, 744-745, 87 S. Ct. 1396, 18 L. Ed. 2d
493 (1967), the record has been diligently reviewed and that, in the opinion of counsel, the
record reflects no reversible error or grounds upon which a non-frivolous appeal can
arguably be predicated. Counsel has discussed why, under the controlling authorities,
there is no arguably reversible error in the trial court proceedings or judgments. See High
v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. 1978).
Counsel has certified that a copy of the Anders brief and motion to withdraw have
been forwarded to appellant, and that counsel has appropriately advised appellant of her
right to review the record and file a pro se response. Appellant has not filed a response.
We have made an independent examination of the record to determine whether
there are any non-frivolous grounds on which an appeal could arguably be founded. See
Penson v. Ohio, 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); Stafford v. State,
-2-
813 S.W.2d 503, 511 (Tex.Crim.App. 1991). The record reveals no such grounds. We
agree with appellate counsel that the appeal is frivolous.
Counsel’s Motion to Withdraw is granted. The judgment of the trial court is affirmed.
Phil Johnson
Chief Justice
Do not publish.
-3- | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/4198789/ | NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 24 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: ADINA I. ZAHARESCU, No. 14-55403
Debtor. D.C. No. 2:13-cv-06570-RGK
______________________________
SATISH SHETTY, MEMORANDUM*
Appellant,
v.
LSI TITLE COMPANY,
Appellee.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Submitted August 9, 2017**
Before: SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges
Satish Shetty appeals pro se from the district court’s order affirming the
bankruptcy court’s order dismissing claims against appellee in Shetty’s adversary
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
proceeding. We review de novo our own jurisdiction and whether a bankruptcy
court’s decision is final. Silver Sage Partners, Ltd. v. City of Desert Hot Springs
(In re City of Desert Hot Springs), 339 F.3d 782, 787 (9th Cir. 2003). We dismiss.
This court lacks jurisdiction over this appeal because “the bankruptcy
court’s order did not dispose of all of the issues in the adversary proceeding” or
“direct entry of judgment under Fed. R. Civ. P. 54(b) which applies to adversary
proceedings in bankruptcy by virtue of Bankruptcy Rule 7054.” Walther v. King
City Transit Mix, Inc. (In re King City Transit Mix, Inc.), 738 F.2d 1065, 1066-67
(9th Cir. 1984) (appellate jurisdiction in bankruptcy extends only to matters
appealable to the district court as of right).
Appellee’s motion to take judicial notice (Docket Entry No. 12) is denied as
unnecessary.
DISMISSED.
2 14-55403 | 01-03-2023 | 08-24-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/997562/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-7389
MICHAEL RICHARD D’ALESSANDRO,
Petitioner - Appellant,
versus
WILLIS E. MORTON; ATTORNEY GENERAL OF THE
STATE OF NEW JERSEY; ATTORNEY GENERAL OF THE
STATE OF MARYLAND,
Respondents - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Frederic N. Smalkin, District Judge. (CA-
97-2316-S)
Submitted: December 15, 1998 Decided: January 13, 1999
Before WIDENER, MURNAGHAN, and NIEMEYER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Michael Richard D’Alessandro, Appellant Pro Se. John Joseph Curran,
Jr., Attorney General, Ann Norman Bosse, OFFICE OF THE ATTORNEY
GENERAL OF MARYLAND, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Michael D’Alessandro seeks to appeal the district court’s
order denying relief on his petition filed under 28 U.S.C.A. § 2254
(West 1994 & Supp. 1998). We have reviewed the record and the dis-
trict court’s opinion and find no reversible error. The district
court fully complied with this court’s mandate in D’Alessandro v.
Morton, No. 97-7850 (4th Cir. June 30, 1998) (unpublished).
D’Alessandro failed to waive his right to be present at state post
conviction proceedings or to indicate alternative acceptable pro-
cedures and thus has failed to exhaust his state remedies. See
Farmer v. Circuit Court, 31 F.3d 219, 224 (4th Cir. 1994).
Accordingly, although we grant D’Alessandro leave to proceed in
forma pauperis, we deny a certificate of appealability and dismiss
the appeal on the reasoning of the district court. D’Alessandro v.
Morton, No. CA-97-2316-S (D. Md. Aug. 27, 1998). We deny D’Ales-
sandro’s motion to appoint counsel. We dispense with oral argument
because the facts and legal contentions are adequately presented in
the materials before the court and argument would not aid the
decisional process.
DISMISSED
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/997600/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ALBERT MANNING SCOTT, SR.,
Petitioner-Appellant,
v.
No. 98-7164
UNITED STATES OF AMERICA, WILLIE
J. SCOTT, in his capacity as Warden,
U.S.P. Atlanta,
Respondents-Appellees.
Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
James A. Beaty, Jr., District Judge;
P. Trevor Sharp, Magistrate Judge.
(CA-98-509-1)
Submitted: December 17, 1998
Decided: January 11, 1999
Before WILKINS, NIEMEYER, and TRAXLER, Circuit Judges.
_________________________________________________________________
Remanded by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Albert Manning Scott, Sr., Appellant Pro Se.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Albert Manning Scott, Sr., appeals an order of the magistrate judge
dismissing without prejudice his motion filed under 28 U.S.C.A.
§ 2241 (West 1994 & Supp. 1998). We remand for further proceed-
ings.
Absent consent of the parties to the magistrate judge's jurisdiction
to enter final judgment under 28 U.S.C. § 636(c) (1994), this court
has no jurisdiction to review a magistrate judge's order. See
Silberstein v. Silberstein, 859 F.2d 40, 41-42 (7th Cir. 1988); Parks
ex rel. Parks v. Collins, 761 F.2d 1101 (5th Cir. 1982). The record
before the court does not reflect consent of the parties to the magis-
trate judge's exercise of jurisdiction or referral of the action to the
magistrate judge under 28 U.S.C. § 636(c).
We accordingly grant Scott's application to proceed in forma
pauperis and remand the case for determination by the district court.
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.
REMANDED
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4224039/ | [Cite as Wood v. Simmers, 2017-Ohio-8718.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Donald E. Wood, :
Appellant-Appellant, :
v. : No. 17AP-269
(C.P.C. No. 16CV-11455)
Richard J. Simmers, Chief, Division of :
Oil and Gas Resources Management, (ACCELERATED CALENDAR)
:
Appellee-Appellee.
:
D E C I S I O N
Rendered on November 28, 2017
On brief: Donald E. Wood, for appellant. Argued: Donald
E. Wood.
On brief: Michael DeWine, Attorney General, and Gene D.
Park, for appellee. Argued: Gene D. Park.
APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Appellant-appellant, Donald E. Wood, appeals from a judgment of the
Franklin County Court of Common Pleas affirming an order of the Oil and Gas
Commission ("commission") in favor of appellee-appellee, Richard J. Simmers, Chief,
Division of Oil and Gas Resources Management. For the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} Appellant is the owner of 16 oil and gas wells in Ohio. Appellant is also an
attorney licensed to practice law in Ohio. On July 6, 2015, appellee issued Chief's Order
2015-345, finding that appellant "failed to maintain and/or file financial assurance with
the Division" as required by R.C. 1509.07(C). (Chief's Order at 1.) The chief's order
No. 17AP-269 2
required appellant to "immediately suspend all oil and gas operations" and, within 30
days of receipt of the order, do one of the following: execute and file a surety bond,
certificate of deposit, irrevocable letter of credit, cash or cashier's check with the division;
properly plug and abandon all wells; or transfer ownership of all his oil and gas wells to
another qualified owner. (Chief's Order at 2.)
{¶ 3} On August 3, 2015, appellant filed a notice of appeal to the commission,
pursuant to R.C. 1509.36, from the July 6, 2015 chief's order. Therein, appellant argued
the chief's order affected a change of policy in the Division of Oil and Gas Resources
Management regarding financial assurance and such change in policy may be affected
only by an amendment to the relevant provisions of the Ohio Revised Code or the Ohio
Administrative Code, not by a chief's order. According to appellant, prior to July 6, 2015,
the chief permitted well owners to establish proof of financial responsibility by filing a
Form 3 Financial Statement. R.C. 1509.07(B)(3).
{¶ 4} On January 11, 2016, appellant filed a motion with the commission,
pursuant to Civ.R. 23(B)(3), seeking certification of a class of existing, non-exempt well
owners who received the chief's order prohibiting them from providing proof of financial
responsibility by means of a Form 3 Financial Statement. In appellant's motion, appellant
represented that approximately 43 such well owners received the chief's order at issue in
the case.1
{¶ 5} On November 18, 2016, the commission issued an order denying appellant's
motion to certify a class. The stated reasons for the denial of the motion are that "[t]he
statutes and rules applicable to the Commission do not specifically empower this
Commission to certify a class action" and "[w]hile the Commission may look to the civil
rules for guidance, strict compliance with the civil rules is not required unless specifically
referenced." (Order at 3, 4.) The commission did not reach the merits of appellant's
arguments regarding the lawfulness of Chief's Order 2015-345.
1 "[U]nder Civ.R. 23(B)(3), a class action is maintainable if the plaintiff is seeking damages and the court
makes two findings: 'that the common questions predominate over questions affecting only individual
members and that a class action is superior to other available methods for the fair and efficient adjudication
of the controversy.' " Stammco, L.L.C. v. United Tel. Co. of Ohio, 136 Ohio St. 3d 231, 2013-Ohio-3019, ¶ 23,
quoting Warner v. Waste Mgt., Inc., 36 Ohio St. 3d 91, 96 (1988).
No. 17AP-269 3
{¶ 6} Pursuant to R.C. 1509.37, appellant appealed to the Franklin County Court
of Common Pleas from the decision of the commission. On January 4, 2017, appellant
filed a motion requesting the common pleas court to certify a class action pursuant to
Civ.R. 23(B)(3). In a decision and entry dated March 21, 2017, the common pleas court
affirmed the commission's November 18, 2016 order and denied appellant's January 4,
2017 motion to certify a class. Appellant appealed to this court from the decision of the
common pleas court.2
II. ASSIGNMENT OF ERROR
{¶ 7} Pursuant to App.R. 12(A)(1)(c), courts of appeal decide appeals on
assignments of error, not arguments or issues contained in a brief. Hamilton v.
Hamilton, 10th Dist. No. 14AP-1061, 2016-Ohio-5900, ¶ 9, citing In re Estate of Taris,
10th Dist. No. 04AP-1264, 2005-Ohio-1516, ¶ 5. See also Bonn v. Bonn, 10th Dist. No.
14AP-967, 2015-Ohio-3642, ¶ 15. The difficulty in doing so in this case is that appellant's
brief does not contain an assignment of error designated as such.
{¶ 8} This court has recently noted that "[a]ppellate courts have discretion to
dismiss appeals that fail to set forth assignments of error." Angus v. Angus, 10th Dist. No.
14AP-742, 2015-Ohio-2538, ¶ 10, citing CitiMortgage, Inc. v. Asamoah, 10th Dist. No.
12AP-212, 2012-Ohio-4422, ¶ 5; Tonti v. Tonti, 10th Dist. No. 06AP-732, 2007-Ohio-
2658, ¶ 2. "Many times, however, appellate courts instead review the appealed judgment
using the appellants' arguments in the interest of serving justice." Angus at ¶ 10, citing
Asamoah at ¶ 6; Tonti at ¶ 2. Thus, this court has the discretion to consider and rule on
arguments made in an appellate brief in the absence of an assignment of error. Angus at
¶ 10. See also Pankey v. Ohio Adult Parole Auth., 10th Dist. No. 11AP-36, 2011-Ohio-
4209, ¶ 4 (appellate court, in the interest of justice, construed appellant's "Issue
Presented for Review" as an assignment of error and addressed the merits of the appeal).
{¶ 9} Appellee has not moved this court to dismiss the appeal due to appellant's
failure to assert an assignment of error in its merit brief. Additionally, we note that
appellant's brief contains the following question under the heading "statement of the
case":
2By order dated July 27, 2017, this court denied appellant's motion to stay proceedings before the Oil and
Gas Commission.
No. 17AP-269 4
When the Chief of the Division of Oil and Gas Resources
Management, State of Ohio, engages in the practice of
administrative rulemaking through the issuance of unlawful
chief's orders, may the recipients of those orders form a class
to appeal the orders, or must each recipient individually
appeal the order pursuant to Ohio Revised Code Section
1509.36?
{¶ 10} Because the alleged trial court error is clear from appellant's "statement of
the case" and the arguments contained in appellant's brief, and because appellee has
responded to those arguments, we will construe appellant's statement of the case as an
assignment of error and rule on the merits of the appeal. Angus; Pankey.
III. STANDARD OF REVIEW
{¶ 11} Pursuant to R.C. 1509.37, appeals for the commission's order, in relevant
part, state as follows:
Any party adversely affected by an order of the oil and gas
commission may appeal to the court of common pleas of
Franklin county.
***
If the court finds that the order of the commission appealed
from was lawful and reasonable, it shall affirm the order. If
the court finds that the order was unreasonable or unlawful, it
shall vacate the order and make the order that it finds the
commission should have made. The judgment of the court is
final unless reversed, vacated, or modified on appeal.
{¶ 12} Thus, "[t]he standard of review on an appeal for the common pleas court
from the commission is whether the commission's order was reasonable and lawful."
Simmers v. N. Royalton, 10th Dist. No. 15AP-900, 2016-Ohio-3036, ¶ 21, citing Martz v.
Div. of Mineral Resources Mgt., 10th Dist. No. 08AP-12, 2008-Ohio-4003, ¶ 13; Johnson
v. Kell, 89 Ohio App. 3d 623, 625 (10th Dist.1993). " ' "Unlawful" means that which is not
in accordance with law.' " " ' "Unreasonable" means that which is not in accordance with
reason, or that which has no factual foundation.' " Id. at 626, quoting Citizens Commt. to
Reserve Lake Logan v. Williams, 56 Ohio App. 2d 61, 70 (10th Dist.1977).
No. 17AP-269 5
{¶ 13} The standard of review for this court in an appeal from an order of the
common pleas court is set forth in Lorain City School Dist. Bd. of Edn. v. State Emp.
Relations Bd., 40 Ohio St. 3d 257, 260-61 (1988), as follows:
In reviewing an order of an administrative agency, an
appellate court's role is more limited than that of a trial court
reviewing the same order. It is incumbent on the trial court to
examine the evidence. Such is not the charge of the appellate
court. The appellate court is to determine only if the trial
court has abused its discretion. An abuse of discretion " '* * *
implies not merely error of judgment, but perversity of will,
passion, prejudice, partiality, or moral delinquency.' " State,
ex rel. Commercial Lovelace Motor Freight, Inc., v. Lancaster
(1986), 22 Ohio St. 3d 191, 193, 22 OBR 275, 277, 489 N.E.2d
288, 290. Absent an abuse of discretion on the part of the
trial court, a court of appeals must affirm the trial court's
judgment. See Rohde v. Farmer (1970), 23 Ohio St. 2d 82, 52
Ohio Op. 2d 376, 262 N.E.2d 685.
The fact that the court of appeals, or this court, might have
arrived at a different conclusion that did the administrative
agency is immaterial. Appellate courts must not substitute
their judgment for those of an administrative agency or a trial
court absent the approved criteria for doing so.
{¶ 14} "On questions of law, however, the court of appeals' review is plenary."
Gemini Energy, Inc. v. Div. of Mineral Resources Mgt., 10th Dist. No. 06AP-633, 2007-
Ohio-5091, ¶ 9, citing Univ. Hosp., Univ. of Cincinnati College of Medicine v. State Emp.
Relations Bd., 63 Ohio St. 3d 339 (1992), paragraph one of the syllabus.
IV. LEGAL ANALYSIS
{¶ 15} The commission denied appellant's motion for class certification stating
that "[t]he statutes and rules applicable to the Commission do not specifically empower
this Commission to certify a class action" and "[w]hile the Commission may look to the
civil rules for guidance, strict compliance with the civil rules is not required unless
specifically referenced." (Nov. 18, 2016 Order at 3, 4.) Appellant argues that the
commission order denying class certification is unlawful and unreasonable because there
is nothing in R.C. 1509.36 that prohibits the commission from certifying a class pursuant
to Civ.R. 23(B)(3). Appellee argues that in the context of an appeal from a chief's order
No. 17AP-269 6
filed pursuant to R.C. 1509.36, the commission has no authority to certify a class action
under Civ.R. 23. We agree with appellee.3
{¶ 16} "The General Assembly created the Oil and Gas Commission." Chesapeake
Exploration, L.L.C. v. Oil & Gas Comm., 135 Ohio St. 3d 204, 2013-Ohio-224, ¶ 13,
quoting R.C. 1509.35(A) ("There is hereby created an oil and gas commission consisting of
five members appointed by the governor."). "Because the commission is a creation of
state law, 'its powers and duties extend only so far as the statutes grant authority, while
being constrained by whatever limits the statutes impose.' " Id. at ¶ 13, quoting Delaney
v. Testa, 128 Ohio St. 3d 248, 2011-Ohio-550, ¶ 20. " 'When the General Assembly grants
an administrative agency power to hear appeals, the statutory language determines the
parameters of the agency's jurisdiction.' " Chesapeake at ¶ 13, quoting Cuyahoga Cty. Bd.
of Cty. Commrs. v. Daroczy, 10th Dist. No. 08AP-123, 2008-Ohio-5564, ¶ 17. For
example, even though R.C. 1509.36 generally confers appellate jurisdiction on the
commission over appeals by persons adversely affected by orders of the chief, the
Supreme Court of Ohio has held that the commission does not have appellate jurisdiction
over the chief's decisions to issue a permit to drill a new oil and gas well because R.C.
1509.06(F) manifestly divests the commission of such jurisdiction. Chesapeake at ¶ 14.
See also Athens Cty. Fracking Action Network v. Simmers, 10th Dist. No. 16AP-133,
2016-Ohio-5388 (appeal to the commission dismissed for lack of jurisdiction where the
permit to drill the injection well was the only order appealed from and the separate permit
authorizing the company to inject brine was not appealed).
{¶ 17} R.C. 1509.36 provides for appeals to the commission, in relevant part, as
follows:
Any person adversely affected by an order by the chief of the
division of oil and gas resources management may appeal to
the oil and gas commission for an order vacating or modifying
the order.
***
The appeal shall be in writing and shall set forth the order
complained of and the grounds upon which the appeal is
3 Whether the chief's order constitutes unlawful rulemaking is not an issue before this court in this appeal.
No. 17AP-269 7
based. The appeal shall be filed with the commission within
thirty days after the date upon which the appellant received
notice by certified mail and, for all other persons adversely
affected by the order, within thirty days after the date of the
order complained of. Notice of the filing of the appeal shall be
filed with the chief within three days after the appeal is filed
with the commission.
{¶ 18} There is no provision in R.C. 1509.36 or elsewhere in R.C. Chapter 1509
permitting the commission to certify a class of similarly situated well owners seeking to
vacate or modify a chief's order. Contrary to appellant's assertion, the fact that the
statutory language does not preclude such certification does not mean that the statute
permits it. Rather, because the commission is a creation of state law, its powers and
duties extend only so far as the statutes grant authority. Chesapeake at ¶ 13. By enacting
R.C. 1509.36, the General Assembly granted the commission power to hear appeals, and it
is the statutory language that determines the parameters of the commission's jurisdiction.
Id. See also Daroczy. Nothing in the statutory language authorizes the commission to
certify a class of similarly situated well owners in an R.C. 1509.36 appeal timely filed by
one such well owner. Under the statutory language, any party seeking to appeal to the
commission from a chief's order must comply with the filing requirements of R.C.
1509.36.
{¶ 19} Moreover, as the commission noted, when the General Assembly created
the commission, it did not specify the procedural rules that apply in commission
proceedings. Rather, R.C. 1509.35(G) states that "[t]he commission, in accordance with
Chapter 119. of the Revised Code, shall adopt rules to govern its procedure." The rules
adopted by the commission appear at Ohio Adm.Code 1509-1-09 through 1509-1-26. The
rules contain provisions permitting "interested persons" to participate in a timely R.C.
5109.36 appeal filed by another either as intervenors or amicus curiae. Ohio Adm.Code
1509-1-13 and 1509-1-14. The commission's rules also specify that discovery in appeals to
the commission "shall be conducted in accordance with the procedural provisions of the
'Ohio Rules of Civil Procedure.' " Ohio Adm.Code 1509-1-17. There is, however, no
provision in the rules authorizing class certification and no provision incorporating or
adopting Civ.R. 23 in proceedings before the commission.
No. 17AP-269 8
{¶ 20} Additionally, we note that Civ.R. 1(A) entitled "Applicability" provides as
follows: "These rules prescribe the procedure to be followed in all courts of this state in
the exercise of civil jurisdiction at law or in equity, with the exceptions stated in division
(C) of this rule." This court has previously stated that "[t]he Ohio Rules of Civil Procedure
apply (with some exceptions) to 'all courts of this state,' not to administrative bodies."
Village of Harbor View v. Jones, 10th Dist. No. 10AP-356, 2010-Ohio-6533, ¶ 54, quoting
Civ.R. 1(A).
{¶ 21} Accordingly, we hold that the certification of a class action, pursuant to
Civ.R. 23(B)(3), is unavailable to litigants in an R.C. 1509.36 appeal to the commission
from a chief's order.
{¶ 22} Appellant claims, however, that absent class certification, R.C. 1509.36
effectively denies individual well owners due process of law because the expenses
associated with challenging an unlawful chief's order in the commission are prohibitory.
At oral argument, appellant maintained that he elected to appeal the chief's order
because, as a licensed attorney, he could represent himself. According to appellant,
certifying a class of permit holders in the commission, pursuant to Civ.R. 23(B)(3), would
achieve economies of time, effort, and expense and promote uniformity of decision as to
persons similarly situated without sacrificing procedural fairness or bringing about other
undesirable results. Though we agree that such economies are perceived benefits of
Civ.R. 23(B)(3) class certification, we note that R.C. 1509.36 provides, in relevant part, as
follows:
Sections 1509.01 to 1509.37 of the Revised Code, providing for
appeals relating to orders by the chief or by the commission,
or relating to rules adopted by the chief, do not constitute the
exclusive procedure that any person who believes the person's
rights to be unlawfully affected by those sections or any
official action taken thereunder must pursue in order to
protect and preserve those rights, nor do those sections
constitute a procedure that that person must pursue before
that person may lawfully appeal to the courts to protect and
preserve those rights.
No. 17AP-269 9
{¶ 23} Appellee maintains that the above-cited provision in R.C. 1509.36 negates
the due process argument raised by appellant inasmuch as the statute preserves
appellant's access to the courts. We agree.
{¶ 24} In State ex rel. Fisher v. Nacelle Land & Mgt. Corp., 90 Ohio App. 3d 93
(11th Dist.1993), the state filed an action seeking injunctive relief and the imposition of
civil fines, alleging the corporate well owner failed to abide by the conditions attached to a
permit. The trial court granted summary judgment in favor of the state, and the
corporation appealed to this court. In rejecting the state's contention that the corporation
had no right of appeal because it had failed to appeal the chief's order to the commission,
pursuant to R.C. 1509.36, the Eleventh District held as follows:
The plain meaning of the language in this statute does not
require the procedure set forth to be pursued before appealing
to the courts. Thus, the trial court correctly determined that
the R.C. 1509.36 appeal is neither mandatory nor exclusive
and appellants' collateral attack on the order of the ODNR is
not barred by failure to pursue an R.C. 1509.36 appeal.
Id. at 97.
{¶ 25} Similarly, in Nacelle Land & Mgt. Corp. v. Ohio Dept. of Natural Resources,
65 Ohio App. 3d 481 (10th Dist.1989), a corporation engaged in the business of pumping
brine, waste generated from drilling oil, into underground wells applied for and received a
permit from the department. The permit set forth the pumping pressure at which the
corporation could operate. The corporation initially appealed to the commission,
pursuant to R.C. 1509.36, but later abandoned that appeal after shuttering its business
and capping all of its wells. The corporation subsequently filed a civil action against the
Ohio Department of Natural Resources in the Court of Claims of Ohio alleging that the
unreasonably low pumping pressure limits in the permit resulted in extraordinary
operating costs which essentially put the company out of business. The Court of Claims
dismissed the complaint due to the corporation's failure to exhaust administrative
remedies and sovereign immunity.
{¶ 26} On appeal, this court held that the state's prior consent to be sued by way of
an administrative action did not bar an action by the permit holder in the Court of Claims
for money damages where such an action would provide the only effective remedy. This
No. 17AP-269 10
court also determined that the corporation was not required to exhaust its administrative
remedies under R.C. 1509.36 before seeking monetary relief in the Court of Claims.4
{¶ 27} The foregoing case law and the plain language of R.C. 1509.36 establish that
a well owner may seek relief from an allegedly unlawful chief's order in the courts and
need not exhaust administrative remedies before doing so. Because R.C. 1509.36 is not
the exclusive means to challenge a chief's order, there is no merit to appellant's contention
that considerations of fundamental fairness and due process of law require the
commission to consider certification of a class of similarly situated well owners in an
appeal timely filed by one such well owner pursuant to R.C. 1509.36.
{¶ 28} We also disagree with appellant's argument that the trial court, in ruling on
appellant's R.C. 1509.37 appeal from the commission's November 18, 2016 order, erred by
failing to entertain appellant's January 4, 2017 motion for class certification. We have
previously determined that R.C. 1509.36 determines the jurisdictional parameters of the
commission when ruling on appeals from the chief's orders. For similar reasons, R.C.
1509.37 limits the authority of the common pleas court in appeals from the commission.
The relevant language of R.C. 1509.37 reads, in relevant part, as follows:
If the court finds that the order of the commission appealed
from was lawful and reasonable, it shall affirm the order. If
the court finds that the order was unreasonable or unlawful, it
shall vacate the order and make the order that it finds the
commission should have made.
{¶ 29} Here, the common pleas court found that the commission's decision to deny
class certification was lawful and reasonable. Under such circumstances, R.C. 1509.37
required the common pleas court to "affirm the order." Nothing in R.C. 1509.37 permits
the common pleas court to entertain a motion for class certification in ruling on an appeal
from the commission. Karas v. State of Ohio, 1oth Dist. No. 79AP-37 (Sept. 11, 1979) (in
an appeal from the commission, "the Common Pleas Court was bound by the direction of
R.C. 1509.37, which provides that 'If the court finds that the order of the board appealed
4We ultimately affirmed the judgment of the Court of Claims because we found that the decision to permit
appellant to inject brine into its underground wells at a specifically prescribed pressure was a basic policy
decision within the state's limited immunity from liability.
No. 17AP-269 11
from was lawful and reasonable, it shall affirm such order.' ").5 Moreover, Civ.R. 1(C)
specifies that the civil rules where "clearly inapplicable, shall not apply to procedure
(1) upon appeal to review any judgment, order or ruling" or "(8) in all other special
statutory proceedings." Because we find that Civ.R. 23(B)(3) certification is clearly
inapplicable in an R.C. 1509.37 appeal, class certification is unavailable to litigants in such
an appeal. See Griffin v. Bur. of Workers' Comp., 10th Dist. No. 11AP-1126, 2012-Ohio-
3655, ¶ 6
{¶ 30} For the foregoing reasons, we hold that the common pleas court did not err
when it affirmed the order of the commission and denied appellant's motion for class
certification. Accordingly, to the extent appellant's merit brief sets forth a reviewable
assignment of error, we overrule it.
V. CONCLUSION
{¶ 31} Having overruled appellant's sole assignment of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BROWN and KLATT, JJ., concur.
_______________
5Civ.R. 82 provides that the civil rules "shall not be construed to extend or limit the jurisdiction of the courts
of this state." | 01-03-2023 | 11-28-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/3240291/ | Appeal dismissed. *Page 622 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/808558/ | NOTE: This order is nonprecedential
United States Court of Appeals
for the FederaI Circuit
KYD, INC.,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee,
AND
POLYETHYLENE RETAIL CARRIER BAG
COMMITTEE, HILEX POLY CO., LLC, AND
SUPERBAG CORPORATION,
Defendants-Cross Appellants.
2012-1533, -1534
Appeals from the United States Court of international
Trade in case no. 09-CV-0034, Chief Judge Donald C.
Pogue.
ON MOTION
ORDER
Upon consideration of the United States’ unopposed
motion for a scheduling order,
KYD, INC. V. US 2
IT Is ORDERED THAT:
(1) The motion is granted. KYD’s opening brief is due
September 17, 2012. Po1yethy1ene Retai1 Carrier Bag
Committee’s ("PRCBC”) opening brief and response to
KYD’s brief is due NoVember 1, 2012. The United States’
response to both parties’ briefs shall be due December 17,
2012. KYD’s response to PRCBC’s brief and reply to the
United States’ and PRCB’s briefs are due January 7,
2013. PRCBC’s reply brief to KYD and the United States
is due January 28, 2013.
(2) The United States’ previously filed motion for a
scheduling order is withdrawn.
For The Court
SEP 114 2012 /s/ J an Horbaly
Date J an Horbaly
Clerk
cc: Carrie A. Dunsmore, Esq.
David Craven, Esq.
Stephen A. Jones, Esq.
s25 ILED
FFEALS FDR
SEP 1 4 ZU"|'Z
JAN HORBALY
CLERK | 01-03-2023 | 09-14-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/4271382/ | NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
AUSTIN NASHAT DIAMOND, Appellant.
No. 1 CA-CR 17-0670
FILED 5-1-2018
Appeal from the Superior Court in Mohave County
No. S8015CR201500910
The Honorable Richard D. Lambert, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Janelle A. McEachern Attorney at Law, Chandler
By Janelle A. McEachern
Counsel for Appellant
STATE v. DIAMOND
Decision of the Court
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge David D. Weinzweig joined.
C R U Z, Judge:
¶1 This appeal is filed in accordance with Anders v. California, 386
U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969). Counsel for Austin
Nashat Diamond has advised this Court that counsel found no arguable
questions of law and asks us to search the record for fundamental error.
Diamond was convicted of theft, a Class 3 felony, and trafficking in stolen
property in the first degree, a Class 2 felony. Diamond was given an
opportunity to file a supplemental brief in propria persona, but he has not
done so. After reviewing the record, we affirm Diamond’s convictions and
sentences.
FACTUAL AND PROCEDURAL HISTORY
¶2 We view the facts in the light most favorable to sustaining the
convictions and sentences and resolve all reasonable inferences against
Diamond. See State v. Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998).
¶3 In 2013, the two victims employed Diamond in their business
in Fort Mohave and allowed him to stay in their home for short periods of
time because he did not have a place to stay. By December 2013, Diamond
had stopped staying at the house, and one of the victims noticed their two
Omega watches were missing. There were no signs of a break-in. The other
victim called the police and gave them the serial number of one of the
missing watches. A few months later, she provided the other watch’s serial
number and notified the police that the victims had discovered several
other items were missing from their home.
¶4 Because Diamond had previously mentioned to the victims
that he went to pawn shops, the victims told the police to check the local
pawn shops for Diamond’s name. The next day, the police told the victims
they had found two watches with the correct serial numbers by entering
2
STATE v. DIAMOND
Decision of the Court
Diamond’s name into the Leads Online system.1 The police were only able
to recover one of the watches from a pawn shop in Mohave County. They
were unable to recover the second watch.
¶5 The State indicted Diamond for theft, a Class 3 felony, and
trafficking in stolen property in the first degree, a Class 2 felony, in August
2015. It alleged Diamond committed the offenses while on felony probation
and the aggravating factors of substantial value of the property taken,
Diamond committed the offense in expectation of receipt of something of
pecuniary value, the victims suffered emotional or financial harm, and
Diamond was convicted of a felony offense within ten years prior to the
commission of the offense.
¶6 After trial, a jury found Diamond guilty of both counts. It also
found Diamond committed the offenses while on probation for a conviction
of a felony offense and in the expectation of the receipt of anything of
pecuniary value. The court found Diamond was convicted of a felony
offense within ten years prior to the commission of the offense. The
superior court sentenced Diamond to 9.25 years’ imprisonment for
trafficking in stolen property and a concurrent sentence of 6.5 years’
imprisonment for theft. It also ordered Diamond to complete a term of one
year and one month of community service and credited Diamond with 218
days served prior to sentencing. Finally, it required Diamond to pay several
fees2 and $15,885.80 in restitution to the victims.
¶7 Diamond timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and
13-4033.
DISCUSSION
¶8 We review Diamond’s convictions and sentences for
fundamental error. See State v. Flores, 227 Ariz. 509, 512, ¶ 12 (App. 2011).
Counsel for Diamond has advised this Court that after a diligent search of
the entire record, counsel has found no arguable question of law. We have
read and considered counsel’s brief and fully reviewed the record for
1 The Leads Online system is a resource for pawn shops. The shops
enter items into the system, and law enforcement may look up items by
serial number to discover who had pawned or sold the items and when.
2 $20 probation assessment; $13 assessment fee pursuant to A.R.S.
§ 12-116.04; $20 time payment fee pursuant to A.R.S. § 12-116.
3
STATE v. DIAMOND
Decision of the Court
reversible error, see Leon, 104 Ariz. at 300, and find none. All of the
proceedings were conducted in compliance with the Arizona Rules of
Criminal Procedure. So far as the record reveals, counsel represented
Diamond at all stages of the proceedings, and the sentences imposed were
within the statutory guidelines. We decline to order briefing and affirm
Diamond’s convictions and sentences.
¶9 Upon the filing of this decision, defense counsel shall inform
Diamond of the status of the appeal and of his future options. Counsel has
no further obligations unless, upon review, counsel finds an issue
appropriate for submission to the Arizona Supreme Court by petition for
review. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Diamond shall
have thirty days from the date of this decision to proceed, if he desires, with
a pro per motion for reconsideration or petition for review.
CONCLUSION
¶10 For the foregoing reasons, we affirm Diamond’s convictions
and sentences.
AMY M. WOOD • Clerk of the Court
FILED: AA
4 | 01-03-2023 | 05-01-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/128323/ | 538 U.S. 934
RAMOS-COTAv.UNITED STATES.
No. 02-8909.
Supreme Court of United States.
March 24, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.
2
C. A. 9th Cir. Certiorari denied. Reported below: 50 Fed. Appx. 373. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/2767745/ | CORRECTED COPY
UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
CONN, HOFFMAN and GIFFORD
Appellate Military Judges
UNITED STATES, Appellee*
v.
Sergeant INEZ T. MARTINEZ, JR.
United States Army, Appellant**
ARMY 20080699
Headquarters, Fort Carson
Debra Boudreau, Military Judge (arraignment)
Thomas Molloy, Military Judge (trial)
Colonel Michael W. Meier, Staff Judge Advocate
For Appellant: Captain Brent A. Goodwin, JA (argued); Colonel Mark Tellitocci,
JA; Lieutenant Colonel Matthew M. Miller, JA; Major Bradley M. Voorhees, JA;
Captain Brent A. Goodwin, JA (on brief); Colonel Mark Tellitocci, JA; Major
Bradley M. Voorhees, JA; Captain Brent A. Goodwin, JA (on brief regarding
specified issues).
For Appellee: Major Adam S. Kazin, JA (argued); Colonel Norman F. J. Allen III,
Colonel, JA; Lieutenant Colonel Martha C. Foss, JA; Lieutenant Colonel Francis C.
Kiley, JA; Major Karen J. Borgerding, JA (on brief); Colonel Norman F. J. Allen III,
Colonel, JA; Lieutenant Colonel Martha C. Foss, JA; Major Adam S. Kazin, JA;
Major Karen J. Borgerding, JA (on brief regarding specified issues).
7 October 2010
---------------------------------
OPINION OF THE COURT
---------------------------------
GIFFORD, Judge:
Appellant was charged with absence without leave and drunk on duty, in
violation of Articles 86 and 112, Uniform Code of Military Justice (10 U.S.C.
§§ 886 and 912) [hereinafter UCMJ]. A military judge, sitting as special court-
martial convicted appellant, pursuant to his pleas, of absence without leave for more
than thirty days and drunk on station, in violation of Articles 86 and 134, UCMJ, 10
U.S.C. §§ 886 and 934. The military judge sentenced appellant to a bad-conduct
discharge, confinement for six months and reduction to the grade of Private E1. For
the Specification of Charge II, the convening authority disapproved the finding of
*Corrected
**Corrected
MARTINEZ ARMY 20080699
drunk on station, in violation of Article 134, UCMJ (10 U.S.C. § 934) and instead
approved a finding of incapacitation for duty through the prior wrongful indulgence
of alcohol [hereinafter "incapacitation for duty by reason of drunkenness"], in
violation of Article 134, UCMJ, 10 U.S.C. § 934. The convening authority limited
confinement to 164 days and otherwise approved the adjudged sentence.
In review before this court pursuant to Article 66(c), UCMJ, appellant raises
two assignments of error, to-wit:
I.
WHETHER A REASONABLE PERSON WOULD
QUESTION THE TRIAL JUDGE'S IMPARTIALITY
WHEN A SENIOR MILITARY JUDGE, WHO
APPEARED TO HAVE ASSISTED THE GOVERNMENT
DURING TRIAL, ENTERED THE TRIAL JUDGE'S
CHAMBERS DURING RECESS AND DELIBERATIONS,
IN VIOLATION OF APPELLANT'S RIGHT TO DUE
PROCESS.
II.
THE OMISSSION OF ANY REFERENCE TO THE
SENIOR MILTARY JUDGE WHO APPEARED TO HAVE
ASSISTED THE GOVERNMENT DURING TRIAL AND
ENTERED THE TRIAL JUDGE'S CHAMBERS DURING
RECESSES AND DELIBERATIONS MADE [THE]
RECORD OF TRIAL SUBSTANTIALLY INCOMPLETE
IN CONTRAVENTION OF [ARTICLE] 54(c), UCMJ,
AND RULE FOR COURTS-MARTIAL 1103(b)(2)(B),
AND WAS A SUBSTANTIAL ERROR.
For appellant's first assignment of error we assume, without deciding, that the
military judge committed plain error when he did not disqualify himself or obtain
waiver, under the provisions of Rule for Courts-Martial [hereinafter R.C.M.] 902(a),
based on his knowledge of the supervisory judge's contact with the trial counsel
regarding a request for recess in tandem with other facts of the case. We further
find, however, after review of this case under the factors set forth in Liljeberg v.
Health Services Acquisition Corp., 486 U.S. 847 (1988), reversal of the findings is
not warranted. We additionally find, upon review of the entire record, that
appellant's second assignment of error is without merit. Article 59(a), UCMJ.
Although not raised by appellant, we also find that the convening authority
exceeded his authority under Article 60(c), UCMJ, and R.C.M. 1107(c), when he
MARTINEZ ARMY 20080699
approved incapacitation for duty by reason of drunkenness for the Specification of
Charge II. We grant relief in our decretal paragraph. We affirm the remaining
findings and the sentence as reassessed. We briefly address this error and
appellant's first assignment of error, although do so in reverse order.
I. IMPROPER CONVENING AUTHORITY ACTION
Background
In the Specification of Charge II, appellant was charged with being drunk on
duty. Article 112, UCMJ. See also Manual for Courts-Martial, United States (2008 ed.).
[hereinafter MCM], Part IV, para. 36a. Prior to trial, appellant entered into a pretrial
agreement wherein he agreed, in exchange for a limitation on sentence, to plead
guilty to "drunk on duty" to the Specification of Charge II.
At trial, for the specification of Charge II and Charge II, appellant entered a
plea of guilty to "the named lesser-included offense of drunk on station" in violation
of Article 134. The offense of drunk on station is listed in MCM, Part IV, para. 73.
Neither the trial counsel nor the defense counsel objected to or commented upon
appellant's plea to drunk on station. Prior to appellant's entry of pleas, the military
judge commented on the record that the parties had discussed, at a R.C.M. 802
session, that appellant was changing his plea of guilty from Article 112 to Article
134 and "the [his] form of plea to the lesser-included offense." The record does not
detail whether the R.C.M. 802 session specified which Article 134 offense appellant
was pleading to, nor the form appellant’s plea would take. In noting corrections to
the stipulation of fact, however, the military judge stated the words "drunk on duty"
were amended to read "drunk on station."
After entry of pleas, the military judge acknowledged that appellant had
“entered a plea of guilty to the crime of drunk on station." The military judge
advised appellant, however, of the elements of a third offense: incapacitation for
duty through the prior wrongful indulgence of alcohol. Article 134, UCMJ; MCM,
Part IV, para. 76. During the ensuing providence inquiry, the colloquy between the
military judge and appellant established appellant satisfied the elements for the
offense of incapacitation for duty through the prior wrongful indulgence of alcohol.
During the providence inquiry, the trial counsel twice asked the military judge to
obtain additional information from appellant to ensure that a sufficient factual
inquiry had been obtained to satisfy elements of the offense of incapacitation for
duty by reason of drunkenness—i.e., that appellant had been subject to the
requirement to perform duties as an infantryman (MOS 11B) non-commissioned
officer and that his conduct was prejudicial to good order and discipline in the
Armed Forces or was of a nature to bring discredit upon the Armed Forces. When
the military judge entered findings, however, he found appellant guilty of the
offense to which he pled guilty—drunk on station.
MARTINEZ ARMY 20080699
In his written post-trial recommendation [hereinafter “PTR”] to the convening
authority pursuant to R.C.M. 1106, for the Specification of Charge II, the staff judge
advocate [hereinafter SJA] recommended the convening authority approve a finding
of guilty for the Article 134, UCMJ, offense of incapacitation for duty through prior
wrongful indulgence of alcohol. In responding to the SJA's PTR, neither appellant
nor his trial defense counsel commented on the SJA’s recommendation to the
convening authority to approve the Article 134 offense of incapacitation for duty
through drunkenness instead of drunk on station. In taking action pursuant to
Article 60(c) and R.C.M. 1107(c), the convening authority approved a finding of
guilty of incapacitation for duty through drunkenness, in accordance with the SJA’s
recommendation.
Discussion
Because the Article 134, UCMJ, offense of incapacitation for duty by reason
of drunkenness is not a lesser-included offense of the Article 134, UCMJ, offense of
drunk on station, we find the convening authority exceeded his authority under
Article 60(c), UCMJ, and R.C.M. 1107(c). As a result, his approval of the
Specification of Charge II is a nullity.
A convening authority is not required to specifically act on the findings of a
court-martial. Article 60(c), UCMJ, and R.C.M. 1107(c). See also United States v.
Alexander, 63 M.J. 269 (C.A.A.F. 2006); United States v. Diaz, 40 M.J. 335 (C.M.A.
1994). If he chooses to act on the findings of a court-martial, however, a convening
authority is limited to the options delineated in Article 60(c), UCMJ, and R.C.M.
1107(c). Diaz, 40 M.J. at 341.
Pertinent to the case sub judice, both Article 60(c)(3)(B) and R.C.M.
1107(c)(1) contain identical language regarding a convening authority's discretion.
As this court stated in United States v. Henderson, Article 60(c) authorizes a
convening authority "to modify any adjudged finding of guilty by setting aside the
finding of guilty and dismissing the related charge or specification or by approving a
lesser-included offense of the adjudged finding of guilty.” 56 M.J. 911 at 912
(Army Ct. Crim. App. 2002). Specifically, the language of Article 60(c) and R.C.M.
1107(c) authorizes a convening authority to "change a finding of guilty to a charge
or specification to a finding of guilty to an offense that is a lesser-included offense
of the offense stated in the charge or specification" (emphasis added). 1
1
The full texts of Article 60(c) and R.C.M. 1107(c) are set forth below.
(continued . . .)
MARTINEZ ARMY 20080699
To determine whether an offense is a lesser included offense of a charged
offense, we apply the "elements test" derived from Schmuck v. United States, 489
U.S. 705 (1989). If the elements of one offense are a subset of the charged offense,
the offense would be a lesser-included offense of the charged offense. Id. at 716.
Applying the Schmuck elemental analysis to the instant case, we find the offense of
incapacitation for duty by reason of drunkenness in violation of Article 134, UCMJ,
(. . . continued)
Article 60(c)(3) states:
(c) Action on the findings of a court-martial by the convening
authority or other person acting on the sentence is not required.
However, such person, in his sole discretion, may—
(A) dismiss any charge or specification by setting aside a
finding of guilty hereto; or
(B) change a finding of guilty to a charge or specification to
a finding of guilty to an offense that is a lesser-included
offense of the offense stated in the charge or specification.
(emphasis added).
Rule for Courts-Martial 1107(c) states:
(c) Action on findings. Action on the findings is not required.
However, the convening authority may, in the convening
authority’s sole discretion:
(1) Change a finding of guilty to a charge or specification to a
finding of guilty to an offense that is a lesser-included
offense of the offense stated in the charge or specification;
or
(2) Set aside any finding of guilty and—
(A) Dismiss the specification and, if appropriate, the
charge, or
(B) Direct a rehearing in accordance with subsection (e) of
this rule.
(emphasis added).
MARTINEZ ARMY 20080699
is not a lesser-included offense of drunk on station in violation of Article 134,
UCMJ.
The offense of drunk on station under Article 134, UCMJ, requires the
government establish two elements:
(1) That the accused was drunk, disorderly, or drunk and
disorderly on board ship or in some other place; and
(2) That, under the circumstances, the conduct of the
accused was to the prejudice of good order and discipline
in the armed forces or was of a nature to bring discredit
upon the armed forces.
MCM, Part IV, para. 73.
The offense of incapacitation for duty by reason of drunkenness under Article
134, UCMJ, requires the government establish four elements:
(1) That the accused had certain duties to perform;
(2) That the accused was incapacitated for the proper
performance of such duties;
(3) That such incapacitation was the result of previous
wrongful indulgence in intoxicating liquor or any drug;
and
(4) That, under the circumstances, the conduct of the
accused was to the prejudice of good order and discipline
in the armed forces or was of a nature to bring discredit
upon the armed forces.
MCM, Part IV, para. 76.
Restatement of the elements of each offense clearly reflects that the two
offenses share only one element in common: that, under the circumstances, the
conduct of the accused was to the prejudice of good order and discipline in the
armed forces or was of a nature to bring discredit upon the armed forces.
Restatement of the elements similarly clearly reflects that the two offenses do not
share in common the two elements set forth in incapacitation for duty by reason of
drunkenness: that one had duties to perform and was incapacitated to perform such
duties through the prior wrongful indulgence of intoxicating liquor or alcohol. Both
of these elements are patently not elements of the offense of drunk on station.
Accordingly, under the Schmuck elemental analysis, those two elements clearly
MARTINEZ ARMY 20080699
establish that incapacitation for duty by reason of drunkenness under MCM, Part IV,
para. 76, is not a lesser included offense of drunk on station under MCM, Part IV,
para. 73. Based on our conclusion above, we need not address whether the elements
of "drunkenness" under MCM, Part IV, Article 73, and "incapacitation" under MCM,
Part IV, para. 76, are the same for the purpose of the Schmuck elemental analysis.
Cf. United States v. Gonzalez, 60 M.J. 572, 578-79 (Army Ct. Crim. App. 2004).
Because incapacitation for duty by reason of drunkenness is not a lesser-
included offense of drunk on station, the convening authority exceeded the scope of
his authority under Article 60(c)(3)(B) and R.C.M. 1107(c)(1). The convening
authority's action with regard to the Specification of Charge II is a nullity and we
take appropriate action in our decretal paragraph.
II. APPELLATE CHALLENGE TO MILITARY JUDGE'S IMPARTIALITY
Background
Appellant was arraigned by Colonel (COL) B and tried by COL M. Appellant
was advised at the time of arraignment that COL M would likely be trying his case.
The record of trial reflects that although he was an experienced judge advocate,
appellant's court-martial was COL M's first court-martial as a military trial judge.
Colonel B [hereinafter "supervisory judge"] provided oversight of COL M
[hereinafter "military judge"] during appellant's court-martial.
After appellant's trial, his trial defense counsel submitted clemency matters to
the convening authority pursuant to R.C.M. 1105. In a memorandum to the
convening authority, the trial defense counsel asserted that the supervisory judge's
contact with the trial counsel during appellant's court-martial was "unusual" and
created a perception by appellant that the supervisory judge was "assisting the
prosecution." The trial defense counsel asserted, inter alia, that the supervisory
judge had "unusual" contact with the trial counsel at least twice during appellant's
trial while she was sitting in the spectator section of the courtroom. The trial
defense counsel further stated that as a result of one communication, the trial
counsel requested a recess and the supervisory judge followed the military judge
into his chambers during the recess. The trial defense counsel noted the supervisory
judge also accompanied the military judge into his chambers during deliberations.
The trial defense counsel expressly acknowledged he observed the supervisory
judge's action at trial, but did not take action at that time. The trial defense counsel
stated that the actions of the supervisory judge left appellant with an honest belief
that the trial judiciary was less than impartial towards him.
The SJA's addendum included a sworn affidavit from the trial counsel. In the
affidavit, the trial counsel acknowledged twice interacting with the supervisory
judge while appellant's court-martial was in session and the supervisory judge was in
MARTINEZ ARMY 20080699
the spectator section. On one occasion, the supervisory judge passed the trial
counsel a note informing him that the military judge had failed to elicit facts during
the providence inquiry addressing two elements in the Specification of Charge II.
The trial counsel stated that he had already noted the omission, thus the supervisory
judge did not inform him of something of which he was not aware. The trial counsel
further stated the supervisory judge verbally asked him to seek a recess—which he
did—after which the supervisory judge accompanied the military judge into his
chambers. The trial counsel stated that after a short recess, the military judge
returned and proceeded to ask further questions about appellant's pretrial agreement.
The trial counsel's affidavit also confirmed that the supervisory judge accompanied
the military judge into his chambers at deliberations.
In a sworn affidavit obtained pursuant to this court's order, the supervisory
judge identified her role in appellant's case, explained her supervisory relationship
with the military judge, why she and the military judge shared judicial chambers,
and emphasized the non-substantive nature of their conversations regarding
appellant's case. The supervisory judge recalled communicating with the trial
counsel while appellant's court-martial was in session by passing a note to the trial
counsel. The supervisory judge stated she did so to request a recess after the
military judge failed to address most of the provisions of appellant's pretrial
agreement and the supervisory judge had been unsuccessful in being able to gain the
military judge's attention. The supervisory judge further stated that when the court
recessed, she informed the defense counsel that she had asked the trial counsel to
request the recess. The supervisory judge acknowledged accompanying the military
judge into his chambers after requesting the recess and advising him of the
omissions in addressing all the terms of the pretrial agreement. She emphasized that
at no time did she and the military judge discuss any substantive issues regarding
appellant's case. The supervisory judge stated she does not recall any
communications with the trial counsel about the elements.
In a sworn affidavit also obtained pursuant to this court's order, the military
judge identified his role in appellant's case, explained the supervisory judge's
supervisory relationship with him, explained why he and the supervisory judge
shared the singular judicial chambers, and emphasized the non-substantive nature of
their conversations regarding appellant's case. The military judge's statement
reflected he became aware of the supervisory judge's request for a recess made via
the trial counsel, although it does not reflect he was aware of the precise mode of
communication. The military judge made no mention of knowledge of any other
contact between the supervisory judge and the trial counsel while appellant's court-
martial was in session. The military judge noted that after the trial counsel
requested a recess, the supervisory judge accompanied him into his chambers. The
supervisory judge advised him of the omissions in addressing many of the terms of
the pretrial agreement. The military judge emphasized that at no time did he and the
supervisory judge discuss any substantive issues regarding appellant's case.
MARTINEZ ARMY 20080699
Review of the record of trial reflects that after conducting his factual inquiry
during the providence inquiry on the Specification of Charge I, the military judge
asked both counsel whether they thought any further inquiry was needed. The trial
counsel requested the military judge make further inquiry of appellant on the
elements mentioned in the trial counsel's affidavit.
The record further reflects that when conducting his inquiry to determine
whether appellant understood the terms of his pretrial agreement, the military judge
initially only addressed a portion of the pretrial agreement with the appellant before
concluding the inquiry. Shortly after the military judge appeared to have concluded
his inquiry of the pretrial agreement and proceed to other portions of the guilty plea
inquiry, the trial counsel requested a recess. After the trial resumed, the military
judge resumed his inquiry into terms of the pretrial agreement and addressed terms
of appellant's pretrial agreement not previously discussed.
Discussion
Appellant did not challenge the military judge's participation at trial. When
an appellant does not raise the issue of disqualification until appeal, we examine the
claim under the plain error standard of review. United States v. Jones, 55 M.J. 317,
320 (C.A.A.F. 2001) (citations omitted).
Appellant avers that a "reasonable person" would question the impartiality of
a military judge who would allow an individual (i.e., the supervisory judge) who
appeared to be "assisting the prosecution" (i.e., her contact with the trial counsel
during the court-martial) to accompany him into his chambers during recesses and
deliberations. As a result, appellant asserts the military judge should have recused
himself under the provisions of R.C.M. 902(a). The facts of the instant case are
somewhat novel, insofar as we examine the conduct of two judges to determine
whether one military judge should have disqualified himself under R.C.M. 902(a),
although we do not do so under a theory of imputation. Cf. Jones, 55 M.J. at 319-20
and United States v. Lynn, 54 M.J. 202 (C.A.A.F. 2000).
Rule for Courts-Martial 902 delineates general and specific bases for judicial
disqualification. Whereas R.C.M. 902(b) establishes several specific bases for
disqualification, R.C.M. 902(a) establishes a general basis for disqualification on the
appearance of bias. 2 Specifically, R.C.M. 902(a) provides, “Except as provided in
2
Appellant does not assert, and there is no evidence in the record of trial to warrant,
that the military judge should have disqualified himself for any of the five bases
listed under R.C.M. 902(b). The full text of R.C.M. 902(b) is set forth below:
(continued . . . )
MARTINEZ ARMY 20080699
subsection [902] (e) of this rule, a military judge shall disqualify himself or herself
in any proceeding in which that military judge’s impartiality might reasonably be
questioned.”
In interpreting R.C.M. 902(a), our superior court articulated the following
standard: "[a]ny conduct that would lead a reasonable man knowing all the
circumstances to the conclusion that the judge's impartiality might reasonably be
questioned is a basis for the judge's disqualification." United States v. Quintanilla,
(. . . continued)
(b) Specific grounds. A military judge shall also disqualify himself or herself
in the following circumstances:
(1) Where the military judge has a personal bias or prejudice concerning a
party or personal knowledge of disputed evidentiary facts concerning the
proceeding.
(2) Where the military judge has acted as counsel, investigating officer,
legal officer, staff judge advocate, or convening authority as to any
offense charged or in the same case generally.
(3) Where the military judge has been or will be a witness in the same case,
is the accuser, has forwarded charges in the case with a personal
recommendations to disposition, or except in the performance of duties as
military judge in a previous trial of the same or a related case, has
expressed an opinion concerning the guilt or innocence of the accused.
(4) Where the military judge is not eligible to act because the military
judge is not qualified under R.C.M. 502(c) or not detailed under R.C.M.
503(b).
(5) Where the military judge, the military judge’s spouse, or a person
within the third degree of relationship to either of them or a spouse of such
person:
(A) Is a party to the proceeding;
(B) Is known by the military judge to have an interest, financial or
otherwise, that could be substantially affected by the outcome of the
proceeding; or
(C) Is to the military judge’s knowledge likely to be a material witness
in the proceeding.
MARTINEZ ARMY 20080699
56 M.J. 37, 78 (C.A.A.F. 2001) (quoting United States v. Kincheloe, 14 M.J. 40, 50
(C.M.A. 1982) (interpreting 28 U.S.C. § 455(a))). The test is objective, judged from
a reasonable person viewing the proceedings. 3 Quintanilla, 56 M.J. at 78. A key
point of the standard is knowledge of all the facts. See e.g., United States v. Lynn,
54 M.J. at 205; United States v. Mitchell, 39 M.J. 131, 143 (C.M.A. 1994).
We have carefully examined the record of trial, which includes sworn
affidavits from the supervisory judge, the military judge, and the trial counsel
addressing, inter alia, the substance of appellant's disqualification allegation. We
find the supervisory judge had previously arraigned appellant and thus was known to
appellant as a military judge. The supervisory judge attended appellant's trial to
provide oversight of the military judge, as it was his first trial as a military judge.
During trial, the supervisory judge sat behind the trial counsel in the spectator
section of the court-room. At times, the supervisory judge took notes.
While appellant's court-martial was in session, there were two "irregular"
contacts between the supervisory judge and the trial counsel. Both communications
took place during the guilty plea phase of appellant’s court-martial. One
communication occurred during the providence inquiry and advised the trial counsel
to communicate to the military judge that he needed to further address two elements
of the specification of Charge II. The second communication consisted of the
supervisory judge advising the trial counsel to request a recess. While there is a
factual dispute in the record of trial as to which communication was verbal and
which was written, the disputed issue is immaterial to resolution of the legal issue
before this court. Both communications occurred while the supervisory judge was
sitting in the spectator section of the courtroom.
We find the evidence supports that during trial the military judge became
aware of one of the communications between the supervisory judge and the trial
counsel, although perhaps not the precise mode of communication. Specifically, the
military judge became aware of the supervisory judge's request for a recess via the
trial counsel. The military judge's knowledge of the communication between the
supervisory judge and the trial counsel occurred during the providence inquiry phase
of appellant's court-martial. Subsequent to this communication between the trial
counsel and the supervisory judge, when the court was placed in recess, the
supervisory judge accompanied the military judge into his chambers. The
supervisory judge also accompanied the judge into his chambers during
deliberations.
3
See R.C.M. 902(c)(1) wherein the term "proceeding" is defined to include "pretrial,
trial, post-trial, appellate review, or other states of litigation." See also Mitchell, 39
M.J. at 143.
MARTINEZ ARMY 20080699
Consonant with the observations of the Supreme Court of the United States in
Liljeberg, we do not expect military judges to be prescient and "disqualify
themselves based on facts they do not know." Liljeberg, 486 U.S. at 861. We find
the evidence does not support that the military judge was aware of the
communication between the supervisory judge and the trial counsel regarding the
need to further address elements of the Specification of Charge II. As a result, we
find no merit in appellant's assertion that the military judge should have disqualified
himself (or discussed waiver) under R.C.M. 902(a) based on that communication in
tandem with other facts of the case.
We assume, without deciding, however, that the military judge committed
plain error when he did not disqualify himself or obtain waiver, under the provisions
of R.C.M. 902(a), as a result of his knowledge of the supervisory judge's contact
with the trial counsel regarding a request for recess in tandem with other facts of the
case. The other facts include, but are not limited to: appellant’s knowledge of the
supervisory judge’s status as a member of the U.S. Army Trial Judiciary; the
circumstances of the supervisory judge's attendance at appellant's trial (e.g., sitting
behind the trial counsel and taking notes); her irregular communication with the trial
counsel; the lack of timely and full disclosure on the record by the appropriate
parties of the contacts between the supervisory judge and the trial counsel; and the
supervisory judge's access—albeit permissible—to the military judge during recess
and deliberations, which all contributed to appellant's allegation that the supervisory
judge was assisting the prosecution and the military judge did not act impartially.
We now analyze whether his failure to do so requires reversal under the standards
set forth in Liljeberg.
The first Liljeberg factor requires consideration of "the risk of injustice to the
parties in the particular case." 486 U.S. at 864. In the present case, our review of
the record convinces us that appellant suffered no injustice based on the military
judge's failure to disqualify himself. Importantly, we find the record of trial
establishes no evidence of bias by the military judge in the adjudication of
appellant's case. Based on review of the record and knowledge of all the facts, we
find the military judge conducted appellant's trial in a fair and legal manner. 4 In that
4
Although the military judge incorrectly made inquiries of the appellant related to
incapacitation for duties versus drunk on station (see Section I), for the purpose of
the Care inquiry, it was appropriate for the military judge to inquire into all the
facts of the offense to which the appellant "pled" guilty. United States v. Care, 18
U.S.C.M.A. 535, 539, 40 C.M.R. 247, 251 (1969); United States v. Davenport , 9
M.J. 364 (C.M.A. 1980). The military judge's inquiry into the incorrect offense,
however, did not create material prejudice to a substantial right (Article 59(a),
UCMJ) of appellant or violate a due process right vis-à-vis the allegation of error
regarding disqualification.
MARTINEZ ARMY 20080699
regard, we highlight that the military judge adjudged a sentence that included a
confinement term one month less than what was in the appellant's pretrial agreement
with the convening authority.
In addition, we note the record of trial reflects that the "senior military judge"
who accompanied the military judge into chambers was performing a supervisory
function. The contact the two judges had regarding appellant's case was not
substantive, but rather limited to procedural matters. See Jones, 55 M.J. at 320
(addressing substantive and non-substantive acts vis-à-vis 28 U.S.C. § 455(a)). Such
discussions were permitted under the judicial rules of conduct. Code of Judicial
Conduct for Army Trial and Appellate Judges, Canon 2, Rule, 2.9(A)(3) (16 May
2008). We further note the two judges shared office space as a result of space
constraints. In sum, the evidence supports that the contact and communications
between the two judges was not improper. Finally, we note the convening authority
granted appellant clemency in the form of sentence relief in response to his
identification of the "unusual" contact between the supervisory judge and the trial
counsel.
The second Liljeberg factor requires consideration that "the risk that denial of
relief will produce injustice in other cases." 486 U.S. at 864. The disqualification
challenge presented to the military judge in the case sub judice flowed from the
actions of the supervisory judge and form the gravamen of appellant's claim. If such
contacts had not occurred, we have little doubt that the supervisory judge's
accompaniment of the military judge into chambers would not have given rise to a
challenge under R.C.M. 902(a). Review of the record of trial establishes appellant's
belief the supervisory judge was "assisting the prosecution" lacks legal merit. In so
finding, we construe appellant's allegation of "assisting the prosecution" to aver a
bias in favor of the prosecution. The evidence reflects that the supervisory judge's
interactions with the trial counsel during the proceedings were intended to facilitate
the Care inquiry after she was unsuccessful in gaining the attention of the military
judge. The supervisory judge's action advanced the interests of appellant and the
government insofar as they were intended to ensure the requirements of the
providence inquiry were satisfied. 5 Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247;
Davenport, 9 M.J. 364. While the supervisory judge's actions are not to be
5
Pursuant to a pretrial agreement, appellant agreed to plead guilty in exchange for a
sentence limitation by the convening authority. In accordance with R.C.M. 910(e)
and Care, 18 U.S.C.M.A. at 539, 40 C.M.R. at 251 and Davenport, 9 M.J. 364
(C.M.A. 1980), he was required to provide a factual predicate to the charges to
which he pled guilty.
MARTINEZ ARMY 20080699
countenanced, her actions did not amount to a bias in favor of the prosecution. 6
Finally, as previously stated, knowledge of all the facts reflects the contact between
the two judges was not improper.
Appellant's case presents rather novel facts. We recognize the extreme
sensitivity members of the Army trial judiciary exercise in safeguarding the rights of
accused—as demonstrated in the hundreds of cases that are reviewed before this
court each year. Thus, notwithstanding our foregoing conclusions, these additional
observations further convince us it is not necessary to reverse the results of the
present case to ensure military judges exercise the appropriate degree of caution
when dealing with counsel in the future.
The third Liljeberg factor considers "the risk of undermining the public's
confidence in the judicial process." 486 U.S. at 864. The irregularity which gave
rise to appellant’s challenge relates to appearance of impropriety. The record is
devoid of any evidence that the military judge demonstrated any bias towards or
against either party. R.C.M. 902(b). Review of the entire record of appellant’s case
reveals the military judge adjudicated appellant's case in a fair and legal manner.
When the circumstances giving rise to appellant's concern were brought to the
attention of the convening authority, appellant was granted the clemency requested,
though there was no finding of legal error. With full knowledge of all the facts of
appellant's case and recognizing the circumstances in appellant's case are unlikely to
recur, we conclude reversal of appellant's conviction is not required to avoid
undermining the public's confidence in the judicial process. After careful
application of the Liljeberg factors to appellant's case, we are convinced the
remaining finding of guilty and sentence set forth below should be affirmed and no
injustice will result from such affirmance.
Notwithstanding our conclusions regarding the merits of appellant's
allegation, we nonetheless find this case troublesome. The circumstances which
gave rise to appellant's challenge (i.e., communication between the supervisory
judge and trial counsel) could easily have been avoided. Although we recognize and
appreciate the role of supervisory judges in protecting the interests of an accused
6
Cf. United States v. Chavira, 25 M.J. 705, 707-708 (A.C.M.R. 1987) (this court
found error for improper ex parte contact by a military judge who was trying to
"accomplish the ends of justice, but [did so] . . . contrary to law" when he strongly
suggested trial counsel obtain another panel). Distinct from our conclusion herein
pertaining to the second Liljeberg factor, the conclusion in Chavira pertained to
whether error occurred (i.e., the finding of ex parte communication). See also
Quintanilla, 56 M.J. at 44, 79 (commenting that not all ex parte communications
require disqualification under R.C.M. 902(a), "particularly if the evidence shows
that the communication did not involve . . . favoritism for one side").
MARTINEZ ARMY 20080699
while providing oversight of new military judges, the issues that arose in appellant's
case could have been handled differently to avoid the direct communication between
the supervisory judge and trial counsel. Although not all ex parte communications
between judges and counsel are impermissible, in general most are. See Quintanilla,
56 M.J. at 37. As a result, regardless of motive, we caution members of the
judiciary and counsel alike to avoid ex parte communications that might create
demonstrations of bias (R.C.M. 902(b)) or a perception of bias (R.C.M. 902(a)).
regardless of motive. This ensures strict compliance with the rules while
maintaining and promoting confidence in our judiciary and justice system. 7 In
addition, once the irregular contact between the supervisory judge and trial counsel
occurred there should have been timely and full disclosure on the record and the
defense counsel allowed to inquire, as appropriate, whether any basis for
disqualification existed. See e.g., Quintanilla, 56 M.J. 77-79. Only with a timely
and full disclosure could the defense counsel have made a decision regarding waiver
under R.C.M. 902(e). Id. Finally, once the defense counsel observed conduct he
believed may give rise to an issue under R.C.M. 902(a), he should have timely raised
the issue. See e.g., United States v. Burton, 52 M.J. 223, 226 (C.A.A.F. 2000)
(noting failure of the defense to challenge the impartiality of a military judge may
permit an inference that the defense believes the military judge remained impartial).
The appearance standard in R.C.M. 902(a) is intended to promote public
confidence in the integrity of the judicial system. Quintanilla, 56 M.J. at 45.
Moreover, as our superior court noted in Quintanilla, "[t]he rule also serves to
reassure the parties as to the fairness of the proceedings, because the line between
bias in appearance and in reality may be so thin as to be indiscernible." Id.
(citations omitted). As a result, we caution judges and counsel alike to exercise the
diligence necessary to preserve and promote that public confidence.
7
In Quintanilla, our superior court noted that certain ex parte communications might
be permissible (e.g., “incidental communications that involve noncontroversial
matters such as routine scheduling discussions . . . does not mandate
disqualification”). 56 M.J. at 44 (citations omitted). When such ex parte
communications occur, however, Quintanilla cited to a multi-factor test one must
engage in to determine whether the ex parte communication necessitates
disqualification under R.C.M. 902. Id. (citations omitted). As a result,
notwithstanding the conclusion that some ex parte contact is permissible, the better
practice for avoiding unnecessary litigation and preserving and promoting
confidence in our military justice system is avoiding ex parte contact altogether.
We recognize, however, that when such ex parte contact occurs, the multi-factor test
provides a useful framework for assessing whether disqualification must occur.
MARTINEZ ARMY 20080699
III. CONCLUSION
The findings of guilty to Charge II and its specification are set aside and
dismissed. The remaining findings of guilty are affirmed. We have considered
appellant’s other assignments of error, including matters raised pursuant to United States v.
Grostefon, 12 M.J. at 431 (C.M.A. 1982) and find them without merit. Reassessing the
sentence on the basis of the error noted, the entire record, and the principles of
United States v. Sales, 22 M.J. 305 (C.M.A. 1986), and United States v. Moffeit, 63
M. J. 40 (C.A.A.F. 2006), including Judge Baker’s concurring opinion, we affirm
only so much of the sentence as provides for bad-conduct discharge, confinement for
104 days and reduction to the grade of Private E1. All rights, privileges, and
property, of which appellant has been deprived by virtue of that portion of his
sentence set aside by this decision, are ordered restored. See UCMJ arts. 58b(c) and
75(a).
Senior Judge CONN and Judge HOFFMAN concur.
FOR
FORTHE
THECOURT:
COURT:
MALCOLMH.H.
MALCOLM SQUIRES,
SQUIRES, JR. JR.
Clerk of Court
Clerk of Court | 01-03-2023 | 01-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3063563/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-14822 ELEVENTH CIRCUIT
APRIL 14, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 05-61115-CV-DTKH
PETER J. CORINES,
Plaintiff-Appellant,
versus
BROWARD COUNTY SHERIFF’S DEPARTMENT,
Defendant,
UNKNOWN NAMED AGENTS, ET AL.,
FORT LAUDERDALE POLICE AND MARINE DIVISION,
R. BLISH,
Officer,
J. HANCOCK,
Officer,
TIMOTHY J. BABBITT,
Officer, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 14, 2009)
Before BIRCH, HULL and PRYOR, Circuit Judges.
PER CURIAM:
Peter J. Corines appeals pro se the summary judgment in favor of Officers
Robbie Blish, James Hancock, Timothy Babbitt, and Sergeant Michael O’Connor
of the Fort Lauderdale Police Department, and against Corines’s complaint of false
arrest and false imprisonment. 42 U.S.C. § 1983. The district court concluded that
the officers had probable cause to arrest Corines. We affirm.
I. BACKGROUND
Corines owned a yacht worth about $250,000 and failed to make mortgage
payments on the vessel. In February 2001, the mortgagor, Charter One Bank,
enlisted National Marine Liquidators to repossess the yacht. Later that month,
Jason Lessnau, a recovery manager for National Liquidators, moved the yacht to a
dock owned by the company.
On March 2, 2003, Corines spoke with Dorreen Arra, a representative of
Charter One, who told Corines that the bank had repossessed the yacht. The next
2
day, Corines wrote the bank in an effort to refinance the yacht. In the letter,
Corines stated that Lessnau had told Corines that he could reclaim the yacht if he
paid the outstanding balance on the mortgage within ten days. Meanwhile,
National Liquidators wrote Corines to arrange the transfer of personalty that was
on the yacht.
On March 14, 2003, Corines arrived at the dock under the guise of collecting
his personalty. Corines had a set of keys to the yacht and proceeded to drive the
yacht away from the dock. National Liquidators contacted the police and
requested that they stop the yacht. Officers Blish and Hancock intercepted Corines
and ordered him to heave to a landing.
According to Officer Hancock, Corines stated that he owned the yacht and
produced registration forms for the vessel. The officers did not question whether
Corines held title to the yacht, but inquired whether he had legal possession of the
yacht. Corines offered to prove that he had satisfied his outstanding mortgage, but
produced only photocopies of checks.
Thomas Plachter, an employee of National Liquidators, drove to the scene.
Plachter told the police that the yacht had been repossessed by National
Liquidators and produced documents to support his claim to the vessel. Included
in the documents was an affidavit executed by Doreen Arra that stated she
3
“desire[d] to prosecute” Corines.
The officers placed Corines under arrest for grand larceny, detained him
overnight, and released him the next day. A further investigation revealed that
Corines had reached an agreement with Charter One for repayment of the
mortgage. The State of Florida did not prosecute Corines.
Corines filed a complaint that alleged that he had been falsely arrested and
falsely imprisoned by the Broward County Sheriff and unknown agents of the
Sheriff’s Department and the Fort Lauderdale Police and Marine Divisions.
Corines later amended his complaint to name as defendants Officers Blish,
Hancock, Timothy Babbit, Sergeant Michael O’Connor, and John Doe officers.
The district court dismissed for failure to state a claim the complaint against the
Broward County Sheriff.
Corines moved to join as indispensable parties Charter One Bank and its
employee Doreen Arra and National Liquidators, and its employees Jason Lessnau
and Thomas Plachter. Corines alleged that the bank, repossession company, and
their employees conspired with the police to arrest Corines for financial gain. A
magistrate judge denied Corines’s motion on the basis that the proposed defendants
were not state actors and Corines had failed to allege with specificity the purported
conspiracy. Corines filed an amended motion to join and alleged that the proposed
4
defendants acted under color of state law because they made false statements to the
officers and swore to false affidavits. The magistrate judge denied the motion on
two grounds: (1) Corines failed to allege a conspiracy because providing false
information to police officers did not convert the private parties into state actors
and (2) a settlement agreement reached in a separate civil lawsuit barred Corines
from further litigation against Charter One and National Liquidators. Corines
objected to the decision, but the district court overruled the objection and ruled that
Corines failed to allege there was an understanding between the proposed
defendants and the police because “by [Corines’s] own admission, the officers did
not understand that the information being provided was false.”
Corines moved to compel the Fort Lauderdale Police Department and the
officers to produce documents related to his arrest. Corines complained that the
Department had not produced any documents, and the officers had provided
Corines with only one investigative report during their depositions. Corines also
complained that, although counsel for the officers had produced six pages of
documents, he did not know whether other documents existed that had not been
produced. The officers responded that they had provided all documents in their
possession. The magistrate judge denied the motion as untimely because it was
filed after discovery ended.
5
Corines filed a second motion to compel and argued that the Department and
the officers might have tape-recorded witness statements and other documents.
Corines acknowledged that the officers had “technically” complied with the
subpoena. The officers repeated from their earlier response that they had produced
all documents in their possession. The magistrate judge denied the motion “for the
reasons stated . . . in the defendants’ response.”
The officers moved for summary judgment. The officers asserted the
defense of qualified immunity and argued that they had probable cause and, in the
alternative, arguable probable cause, to arrest Corines. The officers submitted
several documents in support of their motion, including the offense incident report,
an affidavit executed by Plachter, and excerpts of the depositions of Corines,
Hancock, and Blish. The incident report stated that the police had received a call
reporting Corines’s yacht stolen from National Liquidators and, after Corines was
discovered and ordered to dock the yacht, Plachter produced documents to
establish the claim of National Liquidators to the vessel and signed a complaint to
prosecute Corines. The report was executed on March 14, but Officer Babbitt
waited five days, until March 19, to certify the complaint. Plachter stated in his
affidavit that he had told the officers to arrest Corines for stealing the yacht. In
their depositions, Officers Hancock and Blish testified that Corines produced
6
documents to prove that he owned the yacht, but Plachter produced evidence that
National Liquidators was in rightful possession of the yacht. Both Hancock and
Blish testified that Plachter executed the victim affidavit at the scene. Officer
Blish testified that he failed to adhere to usual procedures to witness the affidavit at
the scene. Corines testified at his deposition that he was neither told he could or
could not take the yacht and that he saw Plachter sign the affidavit for his arrest.
Corines filed a joint response and cross-motion for summary judgment.
Corines argued that an issue of fact existed about whether the officers had probable
cause to arrest him; challenged the evidence in support of the arrest; and
complained that the officers failed to adequately investigate his claim of
ownership. In his motion for summary judgment, Corines argued that the officers
lacked probable cause to arrest him because he was entitled to possess the yacht.
Corines submitted several documents with his motion, two of which were relevant
to his argument that the officers lacked probable cause: (1) an affidavit in which
Corines stated that he had paid the outstanding balance on his mortgage before he
reclaimed the yacht and that the officers denied Corines an opportunity to establish
that he was in rightful possession of the vessel, and (2) the deposition of Officer
Babbitt in which he admitted that he was off duty on the day of Corines’s arrest
and that he should not have witnessed Plachter’s victim affidavit.
7
A magistrate judge recommended that the district court grant summary
judgment in favor of the officers. The magistrate concluded that the officers had
probable cause and, in the alternative, arguable probable cause, to arrest Corines.
The district court granted summary judgment in favor of the officers.
II. STANDARDS OF REVIEW
We review a summary judgment de novo and view all evidence in the light
most favorable to the non-moving party. Case v. Eslinger, 555 F.3d 1317, 1325
(11th Cir. 2009). “‘With the facts so construed, we have the plaintiff's best case in
hand, and therefore, material issues of disputed fact are not a factor in the court’s
analysis of qualified immunity and cannot foreclose the grant or denial of summary
judgment based on qualified immunity.’” Id. (internal quotation marks omitted
(quoting Bates v. Harvey, 518 F.3d 1233, 1239 (11th Cir. 2008)). We review the
denial of motions to compel discovery and to join parties for an abuse of
discretion. Swan v. Ray, 293 F.3d 1252, 1253 (11th Cir. 2002) (per curiam)
(joinder); Sanderlin v. Seminole Tribe of Fla., 243 F.3d 1282, 1285 (11th Cir.
2001) (discovery).
III. DISCUSSION
Corines challenges three rulings of the district court. First, Corines argues
that the officers lacked probable cause to arrest him. Second, Corines argues that
8
he was entitled to further discovery from the officers. Third, Corines argues that
Charter One, National Liquidators, and their employees qualified as state actors
and should have been added as defendants. These arguments fail.
The existence of probable cause creates an absolute bar to an action for false
arrest and false imprisonment under section 1983. Eslinger, 555 F.3d at 1326–27;
Marx v. Gumbinner, 905 F.2d 1503, 1506 (11th Cir. 1990). Probable cause to
arrest exists when “the facts and circumstances within the officer’s knowledge, of
which he or she has reasonably trustworthy information, would cause a prudent
person to believe, under the circumstances shown, that the suspect has committed .
. . an offense.” Rankin v. Evans, 133 F.3d 1425, 1435 (11th Cir. 1998) (internal
quotation marks omitted (quoting Williamson v. Mills, 65 F.3d 155, 158 (11th Cir.
1995)). This standard is practical and applied with the understanding that, if a
police officer conducts a reasonable investigation, his ultimate judgment rests on
the “probabilit[y]” of guilt “as understood by those versed in the field of law
enforcement.” Illinois v. Gates, 462 U.S. 213, 231–32, 103 S. Ct. 2317, 2328–29
(1983).
The district court correctly granted summary judgment in favor of the
officers. After National Liquidators reported the yacht stolen, its representative,
Plachter, met with the officers at the site where Corines landed the yacht, produced
9
documents that established that National Liquidators had repossessed the yacht on
behalf of Charter One, and executed a victim affidavit to prosecute Corines. A
reasonable officer could have objectively concluded that Corines had committed a
grand larceny under state law. See Fla. Stat. § 812.014. Because the officers had
probable cause to arrest Corines, his complaint of false imprisonment also fails.
Eslinger, 555 F.3d at 1330.
The district court did not abuse its discretion by denying Corines’s motion to
compel discovery. The officers assert that they produced all documents in their
possession. Corines speculates that other relevant evidence exists, but he does not
explain the relevance of additional documents or how they would lead to the
discovery of relevant evidence. See Porter v. Ray, 461 F.3d 1315, 1324 (11th Cir.
2006) (“[T]he discovery rules do not permit [a party] to go on a fishing
expedition.”).
The district court also did not abuse its discretion when it denied Corines’s
motion for joinder. A district court may join to an action as a defendant persons or
entities when “any right to relief is asserted against them jointly, severally, or in
the alternative with respect to or arising out of the same transaction, occurrence, or
series of transactions or occurrences.” Fed. R. Civ. P. 20(a)(2). Corines argues
that Charter One, National Liquidators, and their employees were transformed into
10
state actors when they conspired with the officers to seize his yacht, but he failed to
allege that the proposed defendants and the officers “‘reached an understanding’ to
deny [Corines] his . . . rights.” NAACP v. Hunt, 891 F.2d 1555, 1563 (11th Cir.
1990). Corines instead alleged that the proposed defendants provided false
information to the officers. Corines also argues that Jason Lessnau was a state
actor by virtue of his state license to repossess, but “licensing and regulation are
not enough to transform private [parties] into state actors for section 1983
purposes.” Harvey v. Harvey, 949 F.2d 1127, 1132 (11th Cir. 1992). Corines
failed to state a claim against the proposed defendants.
IV. CONCLUSION
The summary judgment in favor of the officers is AFFIRMED.
11 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2998720/ | UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 1, 2005*
Decided February 24, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 04-2712
FENG LAI HAN, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals
v. No. A77 651 881
ALBERTO R. GONZALES,
Respondent.
ORDER
Feng Lai Han, a native and citizen of China, entered the United States in
February 1996 on a six-month non-immigrant business visa. He overstayed and on
June 13, 2000, the Immigration and Naturalization Service initiated removal
proceedings. Han then sought asylum, withholding of removal, and protection
under the Convention Against Torture (“CAT”), alleging that he would be
persecuted if returned to China because he and his wife violated the government’s
family planning policies. An Immigration Judge, however, found Han’s asylum
*
On October 25, we granted the parties’ joint motion to waive oral argument.
Therefore, the appeal is submitted on the briefs and the record. See Fed. R. App. P.
34(f).
No. 04-2712 Page 2
petition untimely and also denied his request for withholding of removal or
protection under the CAT. Han appealed to the Board of Immigration Appeals,
which adopted and affirmed the IJ’s decision, and now petitions for review.
Han’s petition rested on the claim that he and his wife ran afoul of Chinese
officials by conceiving a second child in 1993. Han alleged that officials threatened
him and, because his wife would not undergo a voluntary abortion, his employment
was terminated. Government officials, he testified, then forced his wife to abort
their child. Three years later, in 1996, Han left China with the aid of
“snakeheads”—paid smugglers—though his wife and their four-year-old son stayed
behind.
Only Han testified at his hearing on the merits before the IJ. In addition to
his testimony, he provided the IJ with an I-589 form, which included his written
statement and five additional documents: (1) a copy of a notarized household
register dated June 4, 1998; (2) a copy of a notarized marriage certificate indicating
that Han married Jinhua Zhang on October 11, 1988; (3) copies of two “diagnosis
certificates” reporting that Zhang underwent an abortion on March 8, 1993 and had
an IUD implanted on May 18, 1993; and (4) a copy of a receipt dated March 24,
2003 pertaining to medical treatment received by Zhang.
The IJ denied Han relief. The IJ first found that Han’s petition for asylum,
filed on May 24, 2001, was untimely because 8 C.F.R. § 208(a) requires individuals
seeking political asylum to file their application within one year of entry into the
United States, and here Han did not file his application until more than four years
after arriving. The IJ also found that Han could neither establish changed country
conditions nor extraordinary circumstances to overcome the filing deadline. Next,
the IJ denied Han withholding of removal or protection under the CAT because he
failed to submit credible evidence to support either claim. The IJ, though, made no
explicit credibility finding regarding Han’s testimony. Focusing instead on the
documents Han submitted, the IJ characterized them as “suspicious” because they
were prepared years later in 2002 and 2003, ostensibly for the purpose of seeking
asylum, and that, other than the questionable documents, there was “nothing in the
record to objectively support” Han’s testimony. The BIA, in a one paragraph per
curiam order, affirmed the IJ’s decision.
Initially, the government argues that we lack jurisdiction to review the IJ’s
determination that Han’s asylum claim was untimely, see Vladimirova v. Ashcroft,
377 F.3d 690, 695 (7th Cir. 2004), and Han apparently concedes as much (his
petition for review makes no mention of the issue). We therefore limit our review to
the IJ’s denial of Han’s remaining claims regarding withholding of removal and
protection under the CAT. Id. at 696. To prevail on a withholding of removal claim,
Han must show that “it is more likely than not” that he will be persecuted if
No. 04-2712 Page 3
returned to China. See INS v. Stevic, 467 U.S. 407, 429-30 (1984); Vladimirova, 377
F.3d at 695. A CAT claim, however, requires Han to “show that it is more likely
than not that he would be tortured if returned to” China. Jamal-Daoud v.
Gonzales, 403 F.3d 918, 925 (7th Cir. 2004).
Han presents a single issue for review. In a cursory two-page argument, he
suggests that the IJ erred by discrediting his oral testimony based on the alleged
inadequacy of his supporting documents. According to Han, he provided sufficient
testimony that his wife underwent a forced abortion and implantation of an IUD,
and this testimony alone should have established past persecution. The
government responds that the IJ was entitled to consider the supporting documents
submitted by Han and, after discounting them, to conclude that he had not
supported his claims.
An alien’s oral testimony, if credible, is evidence that does not require
corroboration. See Dawoud v. Gonzales, 424 F.3d 608, 612 (7th Cir. 2005). An IJ
may require corroboration from an alien found to be incredible, Gontcharova v.
Ashcroft, 384 F.3d 873, 877 (7th Cir. 2004), but in this case the IJ did not reach a
credibility determination, see Iao v. Gonzales, 400 F.3d 530, 534 (7th Cir. 2005).
Thus, the IJ’s criticisms of Han’s application must support the denial of relief. But,
they do not.
Turning first to the IJ’s analysis of Han’s supporting documents, we have
permitted the inference that the use of fraudulent documents reflects negatively on
an alien’s claim when the documents are provided “to establish an element of the
asylum claim,” Dong v. Gonzales, 421 F.3d 573, 578-79 (7th Cir. 2005), but this is
not a case of fraudulent documents. The IJ discounted Han’s documents because
they were not contemporaneous with the events they reported; he did not explicitly
find them to be forgeries. Thus, the IJ’s choice to assign the documents no weight
should not have discredited Han’s claims for withholding of removal or protection
under the CAT. Cf. Kourski v. Ashcroft, 355 F.3d 1038, 1039 (7th Cir. 2004) (alien
must know or suspect that a document is fraudulent for the forgery to be “evidence
against the credibility of his testimony”).
Setting aside the IJ’s analysis of Han’s documents, the only remaining
ground the IJ gave to deny the application was the fact that Han and his family
remained without incident in China from 1993-1996, and that his wife and son
continue to live there. It is true that “evidence that an asylum applicant’s family
members remain unharmed in their home country may support a finding that the
applicant is unlikely to suffer future persecution.” Nakibuka v. Gonzales, 421 F.3d
473, 479 (7th Cir. 2005). But where, as here, coercive family planning is the alleged
form of persecution it is not relevant that an alien or his family has or can prevent
persecution by avoiding pregnancy. See Dong, 421 F.3d at 578. Han’s allegation
No. 04-2712 Page 4
that his wife was forced to have an abortion, if believed, entitles him to a
presumption of persecution if forced to return to China, see Zhang v. Gonzales, 434
F.3d 993, 1001-1002 (7th Cir. 2006); Dong, 421 F.3d at 580; Lin v. Ashcroft, 385
F.3d 748, 752 (7th Cir. 2004) (discussing statutory amendment allowing individuals
subject to China’s “one child” policy to seek asylum); Qui v. Ashcroft, 329 F.3d 140,
148 (2d Cir. 2003) (spouse may seek asylum based on wife’s forced abortion or
sterilization).
Accordingly, we GRANT the petition for review of Han’s withholding and
CAT claims and REMAND the case to the BIA for further proceedings. | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3047297/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-3031
___________
Donald G. Becker, *
*
Petitioner - Appellant, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri.
Al Luebbers, *
*
Respondent - Appellee. *
___________
Submitted: December 9, 2008
Filed: August 27, 2009
___________
Before MELLOY and BENTON, Circuit Judges, and DOTY,1 District Judge.
___________
MELLOY, Circuit Judge.
In 1995, a Missouri jury convicted Donald G. Becker of sodomizing and
attempting to rape his minor daughters in violation of Missouri Revised Statutes
§§ 566.060 and 566.030, Cumulative Supplement 1991. He currently is serving a life
sentence for the attempted rape conviction and has completed a concurrent, seven-year
1
The Honorable David S. Doty, United States District Judge for the District of
Minnesota, sitting by designation.
sentence for the sodomy conviction.2 Becker exhausted his present claims in state
court and filed a timely petition for federal habeas relief.
Becker argues that trial counsel was constitutionally ineffective for failing to:
call certain witnesses or offer written statements, police reports, hospital records, or
juvenile records to show that the victims were not credible; call other witnesses to
contradict a victim’s description of one of the offenses; cross-examine the victims
more vigorously; and impeach the victims more completely with prior false
statements, prior false allegations of sexual abuse, and purported motives for falsely
accusing Becker. The district court3 rejected Becker’s claims, applying the standards
of the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), codified in part
at 28 U.S.C. § 2254(d). We affirm.
I. Background
Becker and his wife had two daughters, TKB born in 1977 and TRB born in
1980. Becker separated from his wife shortly after the younger daughter, TRB, was
born, and he moved to California. TKB and TRB stayed near St. Louis. The
daughters visited Becker three times in California after about 1987 and also saw him
during some holiday visits in St. Louis when Becker returned for Christmas with his
2
Becker’s state proceedings were protracted and involved a mistrial, conviction
at a second trial, and the imposition of two concurrent life sentences. He then
received a grant of state post-conviction relief resulting in a reduction of his life
sentence for the sodomy conviction to the term of seven years. The grant of state
post-conviction relief and the remand occurred for reasons related to changes in
Missouri law and unrelated to the issues now on appeal.
3
The Honorable Donald J. Stohr, United States District Judge for the Eastern
District of Missouri, adopting the report and recommendation of the Honorable Lewis
M. Blanton, United States Magistrate Judge for the Eastern District of Missouri.
-2-
family at his mother’s home. Eventually, Becker moved back to St. Louis, but his
daughters saw him infrequently after his return. Neither girl made allegations against
Becker contemporaneously with any sexual abuse. Rather, the crimes came to light
several years after the fact.
In 1994, the older daughter, TKB, was placed under general anesthesia for oral
surgery. While TKB was in a semi-conscious state during administration of the
anesthesia, a nurse and an anesthesiologist heard her say that she had been sexually
molested by her father. This statement prompted an investigation that led to more
specific allegations from TKB and TRB and, eventually, to Becker’s indictment. The
State brought numerous sexual abuse charges against Becker, alleging various degrees
of lascivious contact with both of his daughters between April 1987 and July 1991.
At trial, both daughters testified that Becker touched their vaginas with his
hands on several occasions. In addition, TKB testified that Becker had attempted to
have intercourse with her on at least one occasion. Regarding this attempted rape,
TKB testified that in July 1991, at her grandmother’s house in St. Louis, Becker had
been “touching her all day” and ultimately attempted to have intercourse with her.
According to TKB, she attempted to jump out of an upper-story window after this
encounter.
Testimony from another family member who was present on the day of the
attempted rape corroborated TKB’s claim regarding her attempt to jump out of the
window. In fact, TKB was admitted to a hospital in July 1991 for injuries sustained
in an attempt to jump out of a window. At the time of this hospital admission,
officials asked TKB about possible abuse, but she denied that she was a victim of
abuse. She blamed her actions on problems and ongoing disagreements with her
mother and trouble with her boyfriend.
-3-
Becker’s trial counsel cross-examined TKB but did not question her as to
specific details regarding her prior juvenile-court record or prior allegations of sexual
abuse that she purportedly had made against police officers. In addition, trial counsel
did not question TKB extensively about the attempted rape or events surrounding the
attempted rape. Through the testimony of other witnesses, including a psychiatrist
who treated TKB, the jury heard that TKB had psychological problems, suffered
depression, experienced suicidal ideation, and had attempted suicide repeatedly. In
addition, the jury learned that TKB had been hospitalized several times and involved
in several run-ins with the law. The psychiatrist also testified as to his diagnoses and
treatment of TKB regarding each hospital admission. The jury also learned that TKB
had been in trouble with juvenile authorities in Illinois starting around 1991 for
absenteeism from school, fighting, staying out late, running away from home, and
drinking. Importantly, and consistent with the defense theory of the case, the jury
heard that, as a consequence of TKB’s allegations against Becker, she avoided having
to serve a then-pending term of juvenile detention in Illinois related to a 1993 assault.
The jury also heard that, not only had TKB denied being a victim of sexual
abuse at the time that she attempted to jump through the window, she had repeatedly
denied being a victim of sexual abuse when asked by hospital personnel at the time
of several other hospital admissions. During her hospital admissions, she repeatedly
blamed her actions and psychological problems on her boyfriend, her mother, and her
mother’s boyfriend. Finally, the jury learned that TRB, TKB’s younger sister, did not
make any allegations of sexual abuse until after her sister had done so.
TKB and TRB testified that Becker also molested their female cousin, JB, who
was a minor, and that a male relative who was also a minor had witnessed Becker’s
crimes. These two relatives testified at trial, denied having witnessed Becker abuse
TKB or TRB, and denied being victims of Becker’s abuse. JB claimed that TKB had
attempted to coerce her into making allegations of sexual abuse against Becker. In
fact, JB had surreptitiously recorded a telephone call from TKB that JB characterized
-4-
as an attempt by TKB to convince her to make false allegations against Becker.
Prosecutors characterized the tape as a show of support by TKB encouraging JB to
reveal abuse rather than an attempt by TKB to have JB fabricate allegations of abuse.
The jury listened to the tape, and based on the verdict, it is clear that the jury believed
TKB’s testimony and the prosecutors’ characterization of the tape and disbelieved JB.
The jury heard from TKB and TRB, as well as other family members, that the girls’
allegations against Becker had caused a split in Becker’s extended family and that the
two other family-member minors referenced above were aligned with the side of the
family that supported Becker.
The jury also heard descriptions of two instances of suspicious conduct or
statements that preceded TKB’s revelation of abuse. First, a neighbor testified that
she saw Becker kiss TKB and TRB inappropriately when they were very young by
putting his tongue in their mouths. Second, the wife of one of TKB’s cousins testified
that, on one occasion after TKB had been very upset, TKB stated that she hated her
father “because he always treats me like I’m his girl friend or something.” TKB
herself recited this statement in her own testimony when asked whether she had ever
spoken of the abuse to an adult prior to her anesthesia-induced revelation in the
operating room.
Based on this evidence, the jury convicted Becker of seven counts that included
several counts of sexual abuse and sodomy, and one count of attempted rape. Five of
these counts were dependant, in part, upon Becker’s status as a prior felon based on
a 1989 felony theft conviction. Becker moved for a new trial as to these five counts
because the date of his prior felony was later than the dates alleged in these counts.
The trial court granted the motion, and the state elected not to pursue the five counts
further. As noted above, Becker received sentences of life imprisonment on each of
the two remaining counts (one count of sodomy as to TRB and one count of attempted
rape as to TKB), but the state courts reduced the sentence on the sodomy count to
seven years’ imprisonment based on issues not relevant to these federal proceedings.
-5-
Regarding the issues now on appeal, Becker filed a Missouri Rule of Criminal
Procedure 29.15 motion in state court seeking post-conviction relief. He argued that
trial counsel was ineffective for failing to offer juvenile records, medical records, and
available written reports and testimony from several potential witnesses. Becker
argued these materials and testimony would have shown details of TKB’s prior
interactions with law enforcement, prior interactions with other public officials and
medical personnel, prior false allegations of sexual abuse, and attempts to encourage
TRB to make claims against Becker. Becker argued that these details would have
established TKB and TRB to be non-credible.
Becker also alleged that trial counsel was ineffective due to inadequate cross-
examination of TKB and TRB and due to a failure to offer available evidence
regarding a purported motive for TRB to falsely accuse Becker of sexual abuse.
Becker asserted that TRB was mad at him for not buying her a Notre Dame jacket and
that this anger served as her motive to make false accusations.
Becker also argued that trial counsel was ineffective for failing to fully question
certain family-member witnesses regarding their memory of the day of the attempted
rape. Finally, he argued ineffectiveness based on a failure to call as witnesses several
other family members and TKB’s boyfriend from the time of the attempted rape, all
of whom he claimed would have offered testimony contradicting TKB’s description
of the day of the attempted rape. The state court granted Becker an evidentiary
hearing on his claims.
At the Rule 29.15 evidentiary hearing, Becker presented several witnesses,
including trial counsel and the potential family-member witnesses. He also presented
a St. Louis police officer against whom TKB had allegedly made claims of sexual
abuse, the police officer’s wife, and an internal affairs investigator involved with an
investigation of possible abuse by the officer. These witnesses did not state that TKB
had made claims of abuse. Rather, the officer and wife stated that they had heard
-6-
rumors regarding claims against the officer, and the investigator stated that she did not
know whether TKB or someone else had made the allegations. Becker did not offer
as witnesses several other law enforcement officials, social workers, or medical
personnel whom he claimed had knowledge regarding TKB’s prior allegations of
sexual abuse and her credibility in general. He did, however, offer written reports
from several such people. He did not offer testimony from TKB or TRB, and they
have not recanted their allegations or trial testimony.
The state motion court rejected Becker’s ineffective-assistance claims related
to the failure to offer testimony from law enforcement officials, social workers, or
medical personnel. The court held that, with no testimony from these witnesses at the
Rule 29.15 hearing, the court could not know what the witnesses might have said at
trial. Becker argued that the witnesses’ written reports and statements provided at the
Rule 29.15 hearing sufficiently demonstrated what the witnesses would have said if
called to testify. The motion court, however, held that the reports were not self-
proving in that they did not clearly show TKB had made prior false allegations of
sexual abuse.
The state motion court also rejected Becker’s claims related to trial counsel’s
alleged failure to more vigorously cross-examine the victims as to credibility issues,
including the victims’ interactions with the witnesses mentioned above, the victims’
purported motivations to falsely accuse Becker, and the victims’ purported prior
allegations of sexual abuse. The state motion court held that trial counsel had
adequately cross-examined the victims and that the evidence from the post-conviction
hearing did not prove that further or different cross-examination of the victims would
have substantially detracted from the victims’ credibility or produced testimony
favorable to Becker. Regarding Becker’s explanation of TRB’s purported motive to
fabricate accusations against him, Becker argued that TRB was mad at him for not
buying her a Notre Dame jacket. Trial counsel explained that he elected not to
impeach TRB regarding this purported dispute, or present testimony regarding the
-7-
dispute, because he did not believe the dispute was of sufficient gravity to serve as a
motive to fabricate such serious allegations. The state motion court rejected Becker’s
ineffective assistance claim related to TRB’s purported motive to lie as a matter
attributable to counsel’s trial strategy.
Trial counsel explained the general strategy employed at trial. He also
explained several of his decisions regarding specific witnesses. As to family members
and the events that occurred on the day of the attempted rape, trial counsel stated that
he elected to have a witness describe the small house where the attempted rape
allegedly occurred to demonstrate the infeasibility of the victim’s allegations. He
chose this path rather than using the testimony of other family members to contradict
specific aspects of TKB’s testimony because he did not believe the other family
members’ testimony would “ring true.” Trial counsel stated specifically that the trial
occurred several years after the day at issue, and he did not believe a jury would
believe that the members of Becker’s extended family would have remembered the
events of the day so long after the fact. The state motion court determined that
counsel’s election not to call several potential witnesses to describe these events was
a decision within the wide area of permissible attorney strategy.
On appeal, the Missouri Court of Appeals affirmed the denial of post-conviction
relief regarding the family-member testimony on the same grounds as the motion
court, finding that trial counsel, as a matter of trial strategy, elected not to pursue this
testimony. It also affirmed as to the claims of ineffectiveness related to cross-
examination of the victims and related to testimony and reports from the non-family-
member witnesses. The Court of Appeals went further, however, and provided two
additional grounds for denying relief. First, the court held that extrinsic evidence of
prior bad acts reflecting on credibility would not have been admissible in Missouri at
the time of trial. The court concluded, therefore, that trial counsel’s failure to
introduce testimony or reports regarding TKB’s prior acts and prior false allegations
of abuse could not be considered ineffective assistance. Finally, the Missouri Court
-8-
of Appeals held in the alternative and as a matter of law that a failure to introduce
impeachment evidence can never serve as a basis for Rule 29.15 relief.4
Becker then sought habeas relief in the federal district court, asserting twenty-
seven claims for relief. The district court denied relief. We granted a certificate of
appealability as to six allegations of ineffective assistance: (1) failure to call medical
personnel or public officials as witnesses or introduce their reports to establish that
TKB previously had made false reports of sexual abuse; (2) failure to call certain
family members or TKB’s boyfriend and failure to more vigorously question other
family members about the events on the day of the attempted rape; (3) failure to
introduce evidence that TKB previously had made prior false allegations of sexual
4
This broad statement appears to be an established aspect of Missouri law. See,
e.g., State v. Daugherty, 906 S.W.2d 812, 818 (Mo. Ct. App. 1995). In fact, there is
language in Eighth Circuit cases suggesting this broad and unqualified rule might
comport with Strickland v. Washington, 466 U.S. 668 (1984). See Mills v.
Armontrout, 926 F.2d 773, 774 (8th Cir. 1991) (“Generally, trial strategy and tactics
‘are not cognizable in a federal habeas corpus proceeding.’ We agree that the decision
not to attempt to impeach the witness was a strategic one.” (internal citation omitted)).
We suggest, however, that it is appropriate to limit Mills to its facts and that
Missouri’s blanket rule may not, in fact, comport with Strickland. Arguably, such a
rule could be deemed an unreasonable application of Strickland in cases where
impeachment evidence is sufficiently strong and clear, and the witness’s testimony is
so critical to a conviction, that no reasonable attorney could fail to use the
impeachment evidence. In such a case, there is a strong argument that prejudice
would be clear. See, e.g., Steinkuehler v. Meschner, 176 F.3d 441, 445–46 (8th Cir.
1999) (holding, in a pre-AEDPA case, that a trial attorney’s failure to impeach a
critical witness with a strong basis for impeachment merited habeas relief for an Iowa
inmate). In general, Strickland is a flexible standard broadly applicable to the full
spectrum of attorneys’ actions. As such, an attempt to hold, categorically, that
ineffectiveness regarding impeachment evidence can never support a Strickland claim
may go too far. In the present case, however, it does not matter because, as discussed
below, the other grounds that the state courts offered for rejecting Becker’s claims are
valid and adequate to support the state court’s rulings.
-9-
abuse; (4) failure to more fully cross examine TRB regarding motives for falsely
accusing Becker and failure to impeach TRB regarding testimony that she had not
seen Becker since 1991; (5) failure to more fully cross examine TKB regarding the
events surrounding the attempted rape, letters she wrote to her sister regarding
allegations against Becker, and her purported anger towards Becker at the time of the
allegations; and (6) failure to introduce nine specific items of evidence related to the
witnesses that counsel elected not to use at trial.
II. Discussion
Although the certificate of appealability identifies six separate issues, these
issues overlap in that some deal with the failure to call witnesses, others involve a
failure to introduce statements, reports, or other credibility evidence regarding those
same witnesses, and still others relate to a failure to more fully cross examine TKB
or TRB as to issues that the unused testimony or evidence purportedly would have
addressed. The overlap between the issues reduces the points that require discussion
to five allegations of ineffective assistance based upon: (A) a failure to introduce
credibility evidence in the form of reports or testimony from third parties regarding
specific past actions bearing on TKB’s credibility; (B) a failure to more fully cross
examine TRB; (C) a failure to introduce impeachment evidence in the form of
testimony or hospital records indicating that TKB had written letters to TRB
encouraging her to support TKB’s claims against Becker; (D) a failure to more fully
cross examine TKB; and (E) a failure to more fully question family-member
witnesses, or call as witnesses additional family members and a boyfriend, all of
whom purportedly witnessed some of the events on the day of the attempted rape.5
5
Becker also argues that the cumulative effect of the alleged errors establishes
prejudice. Because we hold none of Becker’s individual claims of error amount to
constitutionally defective representation, Becker’s cumulative error argument is
without merit. Even if we were to deem some aspect of counsel’s performance
deficient under Strickland, any prejudice analysis would have to be limited to
-10-
“We review the district court’s conclusions of law de novo and its factual
findings for clear error.” Hunt v. Houston, 563 F.3d 695, 702 (8th Cir. 2009). We
may grant a habeas corpus petition under AEDPA only where “the relevant state court
decision was either ‘contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States,’
. . . or ‘based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.’” Id. (quoting 28 U.S.C. § 2254(d)(1), (2)).
All of Becker’s claims assert constitutionally ineffective assistance of counsel under
the standard of Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel is
ineffective within the meaning of Strickland if “(1) trial counsel’s performance was
so deficient as to fall below an objective standard of the customary skill and diligence
displayed by a reasonably competent attorney, and (2) trial counsel’s deficient
performance prejudiced the defense.” Armstrong v. Kemna, 534 F.3d 857, 863 (8th
Cir. 2008).
A. Evidence Regarding TKB’s Credibility Based on Specific Past Acts
The evidence related to this issue includes reports and potential testimony from
public officials reflecting on TKB’s credibility and concerning prior false statements
and past allegations regarding sexual abuse by a police officer. The evidence also
includes TKB’s juvenile records and medical records purportedly showing TKB had
spoken and written letters to TRB trying to convince her to fabricate allegations
against Becker. We address the question of letters from TKB to TRB separately
consideration only of the consequences of the constitutionally defective aspects of
representation, not an accumulated prejudice based on asserted but unproven errors
as urged by Becker. In Middleton v. Roper, 455 F.3d 838 (8th Cir. 2006), we
reiterated the position that only prejudice from actual instances of constitutionally
ineffective assistance can support the granting of habeas relief on a Strickland claim.
See id. at 851 (“We repeatedly have recognized a habeas petitioner cannot build a
showing of prejudice on a series of errors, none of which would by itself meet the
prejudice test.” (internal quotation omitted)).
-11-
below. Regarding TKB’s juvenile records, the trial court excluded the details of those
records. Trial counsel, nevertheless, discussed in general terms the contents of the
juvenile records. As a result, the jury learned about TKB’s troubled past and her
avoidance of juvenile detention due to the timing of her allegations against Becker.
The jury also learned that TKB was a troubled girl with several suicide attempts,
hospitalizations, and run-ins with law enforcement and that TKB or her mother had
purportedly accused a police officer of sexually abusing TKB. The state courts
correctly determined that trial counsel was not ineffective for abiding by the court’s
ruling excluding the specifics of TKB’s juvenile records. Counsel still conveyed the
material aspects of those records to the jury as relevant to the general theory that TKB
was a troubled girl who fabricated serious allegations to avoid detention.
The potential testimony from officials and the officials’ reports would have
been extrinsic evidence of TKB’s prior bad acts reflecting on credibility but not rising
to the level of prior convictions. The state courts determined that the absence of Rule
29.15 testimony from these witnesses precluded relief because Becker failed to prove
what their testimony would have been had trial counsel called them to testify. Becker
argues the written reports sufficed to prove the content of the missing testimony.
The state courts rightly rejected this argument. The record was unclear as to
whether TKB herself or her mother had actually made the allegations. The officer
who purportedly had assaulted TKB denied knowledge of the allegations and stated
only that he had heard rumors of such allegations. That officer’s wife provided similar
testimony at the Rule 29.15 hearing. There was an internal investigation regarding
allegations of sexual abuse, which started following a referral from other officials, but
TKB had not made any allegations to the internal affairs officer investigating the
matter. The investigation did not result in any charges against the officer, and TKB
denied that any abuse occurred. At trial, the psychiatrist stated that TKB’s mother
may have been the source of allegations against the police officer. Whether or not this
statement by the psychiatrist was true, Becker failed to develop evidence in his post-
-12-
conviction proceedings demonstrating that the psychiatrist was incorrect and that TKB
was the source of any such allegations.
Further, and more generally, this evidence and forecasted testimony (with the
exception of the purported draft letters from TKB to TRB) was merely credibility
evidence unrelated to the allegations against Becker; it was evidence of prior
misconduct reflecting on credibility but not amounting to prior convictions. In
Rousan v. State, 48 S.W.3d 576, 590 (Mo. 2001) (en banc), the Missouri Supreme
court stated that certain records were not admissible for impeachment purposes
because the records were extrinsic evidence of prior bad acts reflecting on credibility,
and such evidence was not admissible in Missouri’s courts. The Missouri Supreme
Court later described this rule more completely:
While a party may cross-examine the witness regarding specific acts of
misconduct relating to credibility, these prior acts may not be proven by
extrinsic evidence. Thus, when a defendant cross-examines a witness
about prior misconduct, the defendant is bound by the witness’s answer
and cannot offer evidence to the contrary, unless, of course, the character
of the witness has been put in issue on direct examination.
State v. Long, 140 S.W.3d 27, 30 (Mo. 2004) (en banc) (internal citations omitted).
Accordingly, although trial counsel was free to cross-examine TKB regarding
the alleged prior false reports and alleged coercion of her sister, Missouri law
prohibited counsel from introducing the testimony and reports Becker relies upon to
prove that TKB was non-credible. The state correctly argues that trial counsel was not
ineffective for abiding by the evidentiary rule applicable at the time of trial.6
6
Becker correctly notes that the Missouri Supreme Court , in Long, 140 S.W.3d
at 30-31, amended the seemingly strict exclusionary rule of Rousan. In Long, the
court noted that the rationale behind the exclusionary rule of Rousan was the desire
to avoid mini-trials on collateral issues that would arise every time parties attempted
-13-
Becker’s claim also fails on other grounds. The state’s theory of the case was
that sexual abuse by Becker had driven much of TKB’s delinquent behavior and
psychological problems. The state presented evidence to this effect including
testimony from the psychiatrist who had treated TKB over the course of several years.
Trial counsel’s theory of the case was that TKB’s behavior and psychological
problems were evidence that TKB was untruthful, manipulative, and vindictive and
that, as a result, her testimony and allegations were not sufficiently reliable to support
a conviction. Given these competing potential views of the case, trial counsel faced
a delicate balancing act regarding the issue of TKB’s credibility, and trial counsel
made its decisions regarding use of the contested testimony and evidence as a matter
of trial strategy. See Middleton v. Roper, 455 F.3d 838, 846 (8th Cir. 2006)
(“Judicial scrutiny of counsel’s performance is highly deferential, indulging a strong
presumption that counsel's conduct falls within the wide range of reasonable
professional judgment.” (quotation omitted)).
to prove facts regarding prior bad acts not established by prior convictions. Id. at 30.
The court determined in Long that, in certain cases, a witness’s testimony might be
so vital to the prosecution, and the impeachment evidence so strong, that the strict
exclusionary rule had to be amended to include limited exceptions in order to strike
the proper balance between giving the jury full exposure to relevant credibility
information and preventing inefficient mini-trials on collateral issues. Id. at 30–31.
In any event, the Missouri Supreme Court did not decide Long until 2004, long after
Becker’s 1995 trial.
Given the fact that Rousan was controlling at the time of trial, the state court
reasonably applied Strickland, in rejecting Becker’s claims of ineffective assistance.
AEDPA requires only that state courts apply clearly established U.S. Supreme Court
precedent in a reasonable manner, Williams v. Taylor, 529 U.S. 362, 407–10 (2000),
and Strickland requires only that trial counsel perform in a manner consistent with that
of “reasonably competent attorney.” Strickland, 466 U.S. at 687. Here, the Missouri
Court of Appeals concluded that trial counsel’s failure to attempt to introduce
inadmissible evidence comported with the attorney-performance standard of
Strickland. This determination withstands our scrutiny under AEDPA.
-14-
B. A Failure to More Fully Cross-Examine TKB
A separate but related question is whether counsel failed to adequately cross-
examine TKB as to the issues referenced above. Even Rousan permitted trial counsel
to question TKB as to prior bad acts not established by a prior conviction, and specific
similar instances of prior false allegations could be fertile ground for questioning an
accuser. Becker’s current ineffective-assistance claim based on this theory fails,
however, because the evidence of TKB’s prior, purportedly false allegations and
evidence regarding the coercion or coaching of her sister was mixed and confusing at
best. In light of this fact, Becker needed to present evidence at his Rule 29.15 hearing
sufficient to show what TKB’s answers or testimony might have been had counsel
cross-examined her about these issues. Without such evidence, there can be no
showing of prejudice as required to prevail on a claim of ineffective assistance.
Strickland, 466 U.S. at 691–92.
As already discussed, Becker alleges that TKB falsely accused a police officer
of sexually assaulting her. The evidence Becker presented at his Rule 29.15 hearing
regarding this issue, however, failed to showed that TKB herself had made any such
allegation, and at trial, the mental health professional stated that TKB’s mother, and
not TKB, had made this prior accusation. Given the uncertainty as to whether TKB
or her mother had made this allegation, and the absence of evidence at the Rule 29.15
hearing to prove that TKB had made the prior, false allegation of sexual abuse, Becker
failed to establish that trial counsel acted outside the permissible bounds of
professional conduct by not questioning her as to this issue. On the present record,
the results of different or further cross-examination of TKB are speculative at best.
As such, there was no unreasonable application of Strickland in the state court’s denial
of Becker’s claim.
-15-
C. A Failure to Introduce Evidence Regarding Letters from TKB to TRB
We address the draft letters from TKB to TRB separately because, unlike the
other documents and records identified by Becker, these letters relate to the facts of
the case; they are not merely general background evidence of prior acts purportedly
bearing on credibility. Becker did not produce the draft letters from TKB to TRB, and
medical records referencing the letters do not make clear what the content of the
letters had been. As such, it is by no means certain that the letters reflected an attempt
by TKB to induce TRB to falsely accuse Becker rather than mere encouragement to
disclose truthful claims of abuse and support TKB in her claims of abuse. In short,
the documents Becker presented were not self-proving, and without more evidence or
testimony in the Rule 29.15 hearing, it is unknown what, if any, prejudice may have
resulted from the failure to introduce these materials.
D. A Failure to More Fully Cross-Examine TRB
Becker also argues trial counsel should have cross-examined TRB about her
anger at Becker for not buying her the Notre Dame jacket and about false trial
testimony in which TRB claimed not to have seen Becker since 1991, when Becker
claims to have seen her and traveled with her after that time. He also argues trial
counsel should have cross-examined TRB regarding letters from TKB and
conversations with TKB in which Becker claims TKB asked TRB to make false
accusations against Becker. The state courts determined counsel’s performance in
these areas comported with Strickland, and we agree.
Regarding the Notre Dame jacket, TRB’s anger at Becker, and her purported
motive to falsely accuse Becker of sexual abuse, we agree with the state post-
conviction court that counsel acted well within the scope of reasonable representation
in electing not to pursue this line of questioning. The purported basis for TRB’s anger
was not proportionate to the accusations she made, and trial counsel is not ineffective
-16-
for making the strategic decision not to pursue cross-examination as to a theory that
he described at the Rule 29.15 hearing as making “no sense.” See, e.g., Link v.
Luebbers, 469 F.3d 1197, 1205 (8th Cir. 2006) (“Generally, only when ignored issues
are clearly stronger than those presented, will the presumption of effective assistance
of counsel be overcome.” (internal citation omitted)).
Regarding TRB’s testimony that she had not seen Becker since 1991, the state
post-conviction court held it was not ineffective representation to fail to question TRB
about her misstatements. TRB was a child-witness who was upset at the time of trial.
Her failure to correctly remember the dates of visits with Becker around 1991 was not
of great value in discrediting her testimony or defending Becker against the claims of
sexual abuse. As to the counts involving TRB, timing was not an element of the
offenses, and as such, the value of further cross-examination on this topic would have
been solely related to TRB’s general credibility. Counsel in cases such as this may
make strategic decisions as to when to continue with cross-examination of upset
witnesses and when to terminate questioning due to the perceived limited value of
exposing minor inconsistencies in testimony that does not bear directly on the offense.
Regarding cross-examination as to TRB’s desire to help TKB, TRB admitted
her desire to support her sister, and as such, cross-examination was not absent as to
this issue. To the extent Becker argues counsel should have delved into conversations
or letters between TRB and TKB, the state court correctly determined that the value
of any such cross-examination would be speculative at best. As already discussed,
there is no evidence that TKB asked TRB to lie. TRB did state that she did not have
an opportunity to speak with TKB between the time when TRB initially denied being
a victim of abuse and the time when TRB disclosed the abuse to her mother. The
medical records appear to contradict this claim, suggesting that TRB and TKB did, in
fact, speak to one another during this time. Without evidence showing that TKB
encouraged TRB to lie, however, and without evidence tending to show that TRB’s
possible misstatement about talking to her sister on a particular date was anything
-17-
more than an innocent mistake, the impeachment value of this statement is limited.
The testimony as a whole showed that the sisters were aware of each other’s abuse,
had confided in each other for years, and were attempting to support each other.
Finally, we note that trial counsel cross-examined TRB about the house where
Becker attempted to rape TKB, and TRB provided a response helpful to Becker. In
reference to a question about a Christmas in 1987 or 1988 when TRB was present in
the house and when TRB alleged Becker sexually abused her, she stated that the house
was small and some family member likely would have seen what Becker had done.
This cross-examination was consistent with trial counsel’s strategy to show the
improbability of abuse occurring in the small crowded space. In the context of the
trial as a whole, trial counsel was not ineffective in his cross examination of TRB.
E. Failure to Call Certain Family Members and a Boyfriend as Witnesses
and Failure to Question Witness Linda Bays Regarding Events on the
Day of the Attempted Rape
Becker alleges that counsel was ineffective for failing to call three of Becker’s
family members and TKB’s boyfriend to describe the events that occurred on the day
of the attempted rape. Becker also alleges trial counsel was ineffective for failing to
elicit more detailed testimony about that day from a family member who did testify
at trial. According to testimony from these witnesses at the Rule 29.15 hearing, they
would have stated that TKB and her boyfriend arrived at Becker’s mother’s house in
the late afternoon or early evening approximately one half hour after Becker arrived
and that TKB and Becker immediately began fighting. These witnesses claimed TKB
and Becker were fighting because TKB had run away from her mother and Becker had
refused to let her stay with him, instead ordering her to return home or wait for her
mother or an aunt to pick her up. The witnesses testified generally consistently with
one another that Becker and TKB’s argument started outside, moved inside, and
continued in an upstairs room for five to ten minutes until other family members went
-18-
into the room to check on Becker and TKB. TKB subsequently tried to jump out of
a window.
The witnesses were inconsistent in their precise descriptions of the amount of
time that elapsed between TKB’s arrival and her attempt to jump out of the window.
In addition, some witnesses’ testimony was generally suspect in that the witnesses
described TKB as arriving at the home at about 5:30 or 6:00 p.m. and stated that a
matter of minutes elapsed before TKB attempted to jump through the window, but
they also stated that it was dark or getting dark when she attempted to jump through
the window. Counsel noted at the Rule 29.15 hearing that, given the time of the year
(July), it would not have been approaching dark until two or more hours later.
Counsel also made the point that, with the exception of the boyfriend, these potential
witnesses were aligned with Becker in a family divide caused by the allegations
against Becker.
According to Becker, the testimony from these witnesses would have shown
that Becker did not have an opportunity to attempt to rape TKB, Becker and TKB
were fighting about an issue related to TKB’s mother and related to Becker refusing
to let TKB live with him, and the events of the day were dramatically different than
described by TKB (she had testified that Becker had been attempting to touch her “all
day”). Becker argued the testimony from TKB’s boyfriend would have been
particularly helpful to his defense because the boyfriend, unlike Becker’s relatives,
presumably would have been more inclined to support TKB’s version of events rather
than Becker’s version.
Trial counsel stated at the Rule 29.15 hearing that he did not believe the
testimony from these witnesses would “ring true” because he did not think jurors
would believe that these witnesses would remember the details of the event several
years after the fact (the day at issue was in July 1991 and the trial was in 1995). Trial
counsel interviewed and personally assessed the credibility of these potential
-19-
witnesses, other than the boyfriend, and made a decision not to call the family-
member witnesses based on his own professional judgment and credibility assessment.
Regarding the decision not to call the family-member witnesses that counsel actually
interviewed, counsel’s actions fall within the broad range of performance permitted
by Strickland. See Strickland, 466 U.S. at 690 (“[S]trategic choices made after
thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable.”).
Regarding the boyfriend, Becker’s argument presents a closer question. Becker
argues that counsel failed to interview TKB’s boyfriend, and therefore, could not have
exercised professional judgment in electing not to call him at trial. The boyfriend
testified at the Rule 29.15 hearing that no one had contacted him at the time of
Becker’s trial. A decision not to call a witness generally does not comport with
Strickland if the record establishes that counsel did not actually assess the credibility
of the witness. See, e.g., Armstrong v. Kemna, 534 F.3d 857, 864–65 (8th Cir. 2008)
(“[S]trategic choices resulting from lack of diligence in preparation and investigation
[are] not protected by the presumption in favor of counsel.”) (quotations omitted).
Here, however, the primary motive for trial counsel’s election not to use the witnesses
was his belief that jurors would find it incredible that onlookers would remember the
particular details of the day four years after the fact. The trial in this case did not
occur shortly after the alleged crime, but several years after the fact. Counsel
reasonably questioned the general credibility of detailed accounts of a day several
years after the fact provided by minor participants. This same rationale applies to
testimony from the boyfriend just as it applies to the family-member testimony, even
if trial counsel did not interview the boyfriend.
Further, the boyfriend’s testimony, even if offered at trial and believed by the
jury, would not have precluded the jury from finding Becker guilty. The potential
testimony, while contradicting TKB’s claim that Becker had been trying to touch her
“all day,” still left a window of time during which TKB and Becker were alone in an
-20-
upstairs bedroom from which family members heard fighting and commotion.
Accordingly, even if circumstances surrounding the boyfriend could support a finding
of ineffective assistance of counsel, Becker has failed to show prejudice related to this
witness. The boyfriend does not claim to have entered the house, and his potential
testimony describes his observations from outside the house. His potential testimony
is fully consistent with Becker and TKB having had an opportunity to be alone in an
upstairs room for a short period of time prior to TKB’s attempt to jump through the
window.
To the extent Becker urges us to view the impeachment value of the boyfriend’s
testimony as sufficient to support a claim of ineffective assistance of counsel, we
reject his arguments. The boyfriend’s testimony would have been of greater
impeachment value than the family members’ because the family members clearly
were aligned with Becker whereas there is no suggestion that the boyfriend was biased
in favor of Becker. It would not have been of great impeachment value, however,
because TKB herself had not offered a highly detailed description of the day at issue.
Rather, she described the abuse, described trying to jump out the window, and only
obliquely referenced Becker as having been trying to touch her “all day.” We note
that all of these potential witnesses testified consistently with one another and with
trial witnesses as to the fact that TKB attempted to jump through an upper-story
window. The state courts reasonably determined that counsel’s performance
comported with Strickland when noting that counsel’s strategy was based on the
likelihood of witnesses remembering such a dramatic occurrence but not necessarily
remembering all the details that occurred earlier on that same day. Accordingly, we
reject Becker’s claims based on counsel’s failure to call the family members and
boyfriend as witnesses.
We affirm the judgment of the district court.
______________________________
-21- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3047298/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-3577
___________
In re: T.G. Morgan, Inc., *
*
Debtor, *
____________________ *
*
Diane S. Blodgett, *
*
Appellant, *
* Appeal from the United States
v. * Bankruptcy Appellate Panel
* for the Eighth Circuit.
John R. Stoebner, *
* [UNPUBLISHED]
Appellee, *
____________________ *
*
Edward Clement; Audrey Florence; *
Tom Lingenfelter, *
*
Appellants, *
*
v. *
*
John R. Stoebner, *
*
Appellee, *
____________________ *
*
Diane S. Blodgett; Edward Clement; *
Audrey Florence; Tom Lingenfelter, *
*
Appellants, *
*
v. *
*
John R. Stoebner, *
*
Appellee. *
___________
Submitted: June 11, 2009
Filed: August 27, 2009
___________
Before MELLOY, BEAM, and COLLOTON, Circuit Judges.
___________
PER CURIAM.
Diane S. Blodgett, Edward Clement, Audrey Florence, and Tom Lingenfelter
appeal a decision of the Bankruptcy Appellate Panel (“BAP”) affirming the
bankruptcy court’s* denial of their objections to the Chapter 7 Trustee’s Final Report
and of their motion under Federal Rule of Civil Procedure 60(b). This appeal arises
out of the involuntary bankruptcy of T.G. Morgan, Inc., a rare coin investment group
that was sued by the Federal Trade Commission and eventually reached a settlement
with the Commission. Appellants have been parties to various disputes in the
bankruptcy proceedings, which began over seventeen years ago and have resulted in
several previous appeals to this court. See, e.g., Lingenfelter v. Stoebner, 188 F.
App’x 554 (8th Cir. 2006); Stoebner v. Lingenfelter, 115 F.3d 576 (8th Cir. 1997);
Stoebner v. Blodgett, No. 96-1083, 1996 WL 563881 (8th Cir. Oct. 4, 1996); Stoebner
v. Parry, Murray, Ward & Moxley, 91 F.3d 1091 (8th Cir. 1996).
*
The Honorable Robert J. Kressel, United States Bankruptcy Judge for the
District of Minnesota.
-2-
On July 23, 2007, the Chapter 7 trustee, John R. Stoebner, submitted his Final
Report and Proposed Distribution, which sought to distribute the remaining funds in
the bankruptcy estate to pay the claims of unsecured creditors and administrative
expenses, including trustee’s and attorney’s fees. Appellants objected to the final
report, arguing that the Trustee had breached his fiduciary duties and taken other
illegal actions throughout the bankruptcy proceedings. On August 27, 2007, the
Trustee responded to the objections and gave notice of a hearing on the objections
before the bankruptcy court on September 5, 2007. On the same day as the hearing,
at which the appellants did not appear, the bankruptcy court overruled their objections
and approved the Trustee’s report. Appellants appealed the order to the BAP.
Appellants subsequently argued in correspondence to the bankruptcy court that
they had not received notice of the hearing, and they eventually filed a Rule 60(b)
motion seeking relief from the order overruling their objections. The BAP remanded
the pending appeal to the bankruptcy court for the limited purpose of ruling on the
Rule 60(b) motion. Following a hearing, the bankruptcy court denied the motion.
Appellants moved for reconsideration, which the bankruptcy court denied. Appellants
appealed, and the BAP consolidated the two appeals.
The BAP affirmed the orders of the bankruptcy court. See Blodgett v. Stoebner
(In re T.G. Morgan, Inc.), 394 B.R. 478 (8th Cir. BAP 2008). It held that the
bankruptcy court properly overruled appellants’ objections to the final report and
denied their Rule 60(b) motion. The BAP concluded that appellants lacked standing
to object to the report and that their claims were barred by res judicata and collateral
estoppel. Id. at 483-85. With respect to their claims of lack of notice, the BAP held
that appellants were not entitled to notice, because they lacked standing, and that even
if they were entitled to notice, the bankruptcy court did not err in finding that the
notice was proper under the circumstances. Id. at 485-86.
Having carefully reviewed the record, we affirm the judgment of the bankruptcy
court for the reasons stated in the BAP’s opinion. See 8th Cir. Rule 47B.
______________________________
-3- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3047301/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-1078
___________
Walid El-Baz Abdelwahab; Alice *
Abdelwahab, *
*
Plaintiffs - Appellants, * Appeal from the United States
* District Court for the
v. * District of Minnesota.
*
Denise Frazier, District Director, et al., *
*
Defendants - Appellees. *
___________
Submitted: May 14, 2009
Filed: August 26, 2009
___________
Before LOKEN, Chief Judge, EBEL* and CLEVENGER,** Circuit Judges.
___________
LOKEN, Chief Judge.
This immigration case illustrates how complex laws and procedures and the
overlapping jurisdiction of multiple agency offices can result in unfortunate delays in
resolving issues of great importance to individual petitioners. In the midst of
*
The HONORABLE DAVID M. EBEL, United States Circuit Judge for the
United States Court of Appeals for the Tenth Circuit, sitting by designation.
**
The HONORABLE RAYMOND C. CLEVENGER, III, United States Circuit
Judge for the United States Court of Appeals for the Federal Circuit, sitting by
designation.
protracted agency proceedings, petitioners Walid El-Baz Abdelwahab, a citizen of
Egypt, and his wife Alice, a U.S. citizen, brought this action seeking an order
compelling officials of the Department of Homeland Security (DHS) to approve
Alice’s Form I-130 spousal immigrant visa petition, then pending on appeal, and to
set aside the agency’s revocation of a previously approved Form I-140 immigrant
worker visa petition. When the district court1 heard argument on the government’s
motion to dismiss and Abdelwahab’s motion for declaratory relief, the I-130 petition
had been granted and a hearing was scheduled before the immigration judge (IJ)
presiding over pending removal proceedings. The district court dismissed the action,
concluding the I-130 issue was moot and the relief requested regarding the still-
revoked I-140 petition, though not moot, was beyond the court’s jurisdiction. The
Abdelwahabs appeal. With the appeal pending, the United States Customs and
Immigration Services (USCIS) reinstated the I-140 approval, and the IJ then granted
Abdelwahab adjustment of status. We affirm.
I.
Abdelwahab entered the United States in mid-1997. He married Alice six
months later, and she filed a Form I-130 petition in early 1998. The St. Paul District
Office of USCIS2 denied the petition, finding that the couple married for the purpose
of evading the immigration laws. DHS then commenced removal proceedings in early
2003 because Abdelwahab had remained in the United States longer than his
nonimmigrant visa permitted. See 8 U.S.C. § 1227(a)(1)(B). Four months later, a
1
The HONORABLE JOAN N. ERICKSEN, United States District Judge for the
District of Minnesota.
2
On March 1, 2003, the Department of Homeland Security absorbed the former
Immigration and Naturalization Service. See Kirong v. Mukasey, 529 F.3d 800, 802
n.1 (8th Cir. 2008). USCIS, a division of DHS, is responsible for the adjudication of
immigrant visa petitions. See 6 U.S.C. § 271(b). Several actions in this case were
taken by INS, while others were taken by USCIS or other DHS offices.
-2-
Minnesota restaurant filed a Form I-140 employment-based petition on Abdelwahab’s
behalf with USCIS’s Nebraska Service Center. That office approved the I-140
petition in January 2004, unaware that Mrs. Abdelwahab’s Form I-130 petition had
been denied on account of marriage fraud.3 Abdelwahab then filed a petition for
adjustment of status in the removal proceeding, based on the I-140 approval.
In July 2004, the St. Paul District Office notified Abdelwahab’s employer of
its intent to exercise discretion under 8 U.S.C. § 1155 to revoke the I-140 approval on
account of marriage fraud. However, the IJ denied DHS’s motion to continue the
removal proceeding and granted Abdelwahab adjustment of status. See 8 U.S.C.
§ 1255. DHS revoked the I-140 approval and appealed the IJ’s decision to the Board
of Immigration Appeals (BIA). Meanwhile, in August 2004, the BIA dismissed
Abdelwahab’s separate administrative appeal from the I-130 denial because no appeal
issues had been identified with the notice of appeal. In September 2005, the BIA
vacated the IJ’s grant of adjustment of status, based upon the I-140 revocation. The
BIA denied a motion to reopen the I-130 appeal and remanded for consideration of
additional relief “including voluntary departure.”
The Abdelwahabs filed this action in district court in July 2006, challenging
DHS’s denial of the I-130 petition and revocation of the I-140 approval. In May
2007, responding to a motion filed by DHS, the BIA in an opinion sharply critical of
DHS’s handling of the I-130 petition vacated its order dismissing the I-130 appeal and
remanded for de novo consideration of the I-130 petition. The St. Paul District Office
approved the I-130 petition on remand. At that point, the parties’ dispositive cross
motions were argued before the district court, six weeks before a scheduled hearing
before the IJ in the related but distinct removal proceeding.
3
The Immigration and Nationality Act provides that no employment-based
petition may be granted after a determination that an alien married “for the purpose
of evading the immigration laws.” 8 U.S.C. § 1154(c).
-3-
The Abdelwahabs argued to the district court that USCIS incorrectly denied the
I-130 petition, and that its St. Paul District Office acted ultra vires in revoking the I-
140 approval when only the Nebraska Service Center had that authority under the
applicable DHS regulations. Defendants argued that the I-130 claim was now moot
and that 8 U.S.C. § 1252(a)(2)(B)(ii) stripped the court of jurisdiction to review the
discretionary revocation of the I-140 approval. The district court granted defendants’
motion to dismiss, concluding (i) that the I-130 claim was moot because, “whatever
its flaws at whatever level, the 130 has been granted,” and (ii) that the relief sought
on the I-140 claim, though not moot, was beyond the court’s jurisdiction for a variety
of reasons. This appeal followed. With the appeal pending, USCIS reinstated its
approval of the I-140 petition, and the IJ then granted adjustment of status.
II.
On appeal, the Abdelwahabs argue the district court erred in concluding that it
lacked jurisdiction to review whether USCIS lawfully revoked its approval of the I-
140 petition. Defendants argue the appeal is moot because the I-140 approval has
been reinstated and Abdelwahab’s status adjusted to lawful permanent resident.
Abdelwahab replies that the issue is not moot because the I-140 approval was not
reinstated nunc pro tunc, which means he must wait four more years before he is
eligible to become a naturalized citizen. We put this mootness issue aside and turn to
the merits of the district court’s decision, reviewing its jurisdictional rulings on
undisputed facts de novo. State ex rel. Nixon v. Coeur D’Alene Tribe, 164 F.3d 1102,
1108 (8th Cir.), cert. denied, 527 U.S. 1039 (1999) (standard of review).
In revoking the prior I-140 approval, USCIS exercised authority granted by 8
U.S.C. § 1155, which provides, “The Secretary of Homeland Security may, at any
time, for what he deems to be good and sufficient cause, revoke the approval of any
petition approved by him under section 1154 of this title.” The parties briefed and
argued the appeal as though it turns on two related jurisdictional issues – whether
-4-
Congress in 8 U.S.C. § 1252(a)(2)(B)(ii) stripped federal courts of jurisdiction to
review the agency’s exercise of its § 1155 authority, and if so, whether the agency
committed an error of law that Congress restored our jurisdiction to review in the
later-enacted 8 U.S.C. § 1252(a)(2)(D).4 The district court decided these questions,
but it based its dismissal of the action on other factors as well. We discuss them all.
1. Focusing on the plain language of § 1155 -- the Secretary “may” revoke an
I-140 approval “at any time, for what he deems to be good and sufficient cause” --
three circuits have held that § 1155 revocations are actions “specified [by statute] to
be in the discretion of . . . the Secretary” within the meaning of § 1252(a)(2)(B)(ii),
and therefore not subject to judicial review. See Ghanem v. Upchurch, 481 F.3d 222,
224 (5th Cir. 2007); Jilin Pharmaceutical USA, Inc. v. Chertoff, 447 F.3d 196, 202-05
(3d Cir. 2006); El-Khader v. Monica, 366 F.3d 562, 567-68 (7th Cir. 2004). But see
ANA Int’l, Inc. v. Way, 393 F.3d 886, 891-95 (9th Cir. 2004). Like the district court,
we agree. See also Onyinkwa v. Ashcroft, 376 F.3d 797, 799 (8th Cir. 2004).
Sidestepping this adverse precedent, the Abdelwahabs argue they raise an issue
of law that courts have jurisdiction to review under 8 U.S.C. § 1252(a)(2)(D) --
whether the St. Paul District Office of USCIS acted ultra vires, and therefore beyond
its discretion, because the Secretary’s regulations granted exclusive authority to
4
§ 1252(a)(2)(B)(ii) provides in relevant part: “Notwithstanding any other
provision of law . . . no court shall have jurisdiction to review . . . any . . . decision or
action of . . . the Secretary of Homeland Security the authority for which is specified
under this subchapter to be in the discretion of . . . the Secretary.” By its plain
language, § 1252(a)(2)(B)(ii) applies to discretionary action not taken in a removal
proceeding. Cf. Van Dinh v. Reno, 197 F.3d 427, 431-32 (10th Cir. 1999).
§ 1252(a)(2)(D) provides in relevant part: “Nothing in [§ 1252(a)(2)(B)] . . .
shall be construed as precluding review of constitutional claims or questions of law
raised upon a petition for review filed with an appropriate court of appeals in
accordance with this section.”
-5-
revoke I-140 approvals to DHS’s Nebraska Service Center. The Second Circuit
reviewed whether USCIS complied with a statutory notice requirement in Firstland
International, Inc. v. INS, 377 F.3d 127 (2d Cir. 2004), so there is some support for
the general principle.5 But the argument is flawed in this case.
First, § 1252(a)(2)(D) applies only to questions of law “raised upon a petition
for review filed with an appropriate court of appeals.” Thus, it does not grant
jurisdiction to review questions of law in district court cases. See Hassan v. Chertoff,
543 F.3d 564, 566 (9th Cir. 2008); Hamilton v. Gonzales, 485 F.3d 564, 568 (10th
Cir. 2007); Jilin, 447 F.3d at 206 n.16. This does not end the inquiry because, even
if § 1252(a)(2)(B) otherwise bars review of a discretionary act, we have jurisdiction
to review a “predicate legal question that amounts to a nondiscretionary determination
underlying the denial of relief.” Ibrahimi v. Holder, 566 F.3d 758, 764 (8th Cir. 2009)
(quotation omitted). But the case on which the Abdelwahabs rely for their ultra vires
contention, Zadvydas v. Davis, 533 U.S. 678 (2001), reviewed whether the agency
exceeded its statutory authority. Here, § 1155 gave the Secretary of Homeland
Security express authority to revoke the approval of I-140 petitions, and the Secretary
has discretion to delegate that authority within USCIS. See 6 U.S.C. § 271(b)(1); 8
C.F.R. § 205.2(a). Whether properly delegated authority was in fact exercised by the
proper agency official, when the agency considers the action properly taken, looks like
an issue beyond our jurisdiction under § 1252(a)(2)(B)(ii), not a “predicate legal
question.”6
5
The Abdelwahabs’ contention that we should review whether USCIS complied
with the notice requirement at issue in Firstland is without merit. Congress repealed
that requirement retroactively in the Intelligence Reform and Terrorism Prevention
Act of 2004, Pub. L. No. 108-458, § 5304, 118 Stat. 3638, 3736 (2004).
6
Though review under the Administrative Procedure Act does not apply to
actions “committed to agency discretion by law,” 5 U.S.C. § 701(a)(2), this limitation
does not bar judicial review if the agency has an established policy governing its
exercise of discretion, see INS v. Yang, 519 U.S. 26, 32 (1996). However, as the
-6-
Second, even if we may review the issue, the Abdelwahabs failed to establish
that the St. Paul District Office had no authority to exercise the Secretary’s discretion
under the DHS regulations then in effect. The regulations provided that any USCIS
officer “authorized to approve [an I-140] petition . . . may revoke the approval of that
petition.” 8 C.F.R. § 205.2(a) (2004). The regulations further provided that Form I-
140 petitions “must be filed with the Service Center having jurisdiction over the
intended place of employment, unless specifically designated for local filing . . . .”
8 C.F.R. § 204.5(b) (2004).7 Therefore, the Abdelwahabs argue, only Service Centers
may approve or revoke I-140 petitions. We disagree. A regulation requiring that
petitions be filed in one office is not a directive that only that office may take final
action on a petition. When the I-140 petition was revoked, District Offices were
responsible for administration and enforcement of immigration laws within their
assigned geographic areas “unless any such power and authority . . . has been
exclusively delegated to another immigration official or class of immigration officer.”
8 C.F.R. § 100.2(d)(2)(ii) (2004).8 Because the power to approve or revoke I-140
Ninth Circuit explained in Spencer Enters., Inc. v. United States, 345 F.3d 683, 691
(9th Cir. 2003), § 1252(a)(2)(B)(ii) is a broader prohibition:
[U]nder the APA, even a decision that is wholly discretionary by statute
may be reviewed if regulations or agency practice provide standards by
which an agency's conduct may be judged. Under § 1252(a)(2)(B)(ii) .
. . if the statute specifies that the decision is wholly discretionary,
regulations or agency practice will not make the decision reviewable.
We have previously noted that judicial review may be circumscribed “where a
procedural rule is designed primarily to benefit the agency in carrying out its
functions.” Ngure v. Ashcroft, 367 F.3d 975, 983 (8th Cir. 2004).
7
This provision was amended this year to read: “Form I-140 . . . must be filed
in accordance with the instructions on the form.” 74 Fed. Reg. at 26,936-37.
8
This provision and others were removed from the regulations to increase
agency efficiency. See 74 Fed. Reg. 26,933 (June 5, 2009) (effective July 6, 2009).
-7-
petitions had not been “exclusively delegated to another immigration official or class
of immigration officer,” id., the Abdelwahabs have failed to prove that the St. Paul
District Office acted ultra vires. In these circumstances, an extraordinary writ
invalidating this otherwise valid agency action may not be granted.
2. Even if judicial review is not foreclosed by § 1252(a)(2)(B)(ii), we would
affirm dismissal of the action on the record before the district court. When the district
court acted, USCIS had rescinded its marriage fraud finding and granted the I-130
petition. This removed the basis for the I-140 revocation. Although the revocation
was still in effect, a hearing was pending before the IJ on remand from the BIA, whose
prior ruling triggered the grant of I-130 relief. At this point, there were further
administrative remedies to be exhausted, even if those remedies had appeared to be
exhausted when the lawsuit was first commenced.
3. Finally, even if the I-140 revocation issue is not moot, the Abdelwahabs seek
an improper judicial remedy. They complain that the I-140 approval was not
reinstated nunc pro tunc. But that is an issue of administrative remedy that must be
raised to the agency. If the extent of the remedy is ultimately subject to judicial
review -- which is highly doubtful because the extent of an administrative remedy is
a quintessentially discretionary agency action -- it may only be reviewed after the
agency has considered the question. Instead, the Abdelwahabs seek an interlocutory
declaratory judgment that they hope will persuade the agency to grant further relief,
or a judicial order usurping the agency’s remedial authority. In either event, such
relief was clearly beyond the district court’s jurisdiction under the Immigration and
Nationality Act.
The judgment of the district court is affirmed.
______________________________
-8- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/128347/ | 538 U.S. 935
OLIVER, AKA BANKS, AKA AZIZv.UNITED STATES.
No. 02-8938.
Supreme Court of United States.
March 24, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT.
2
C. A. 3d Cir. Certiorari denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/128359/ | 538 U.S. 936
DUSSAULTv.UNITED STATES.
No. 02-8968.
Supreme Court of United States.
March 24, 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. 413. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/4224041/ | [Cite as State v. Armstrong, 2017-Ohio-8715.]
THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 16AP-410
(C.P.C. No. 14CR-5938)
v. :
(REGULAR CALENDAR)
Clare Armstrong, :
Defendant-Appellant. :
D E C I S I O N
Rendered on November 28, 2017
On brief: Michael DeWine, Attorney General, Anthony J.
Molnar, William C. Greene, and Darcy T. Cook, for appellee.
Argued: Anthony J. Molnar.
On brief: Peterson, Conners, Swisher & Peer LLP, and
Gregory S. Peterson, for appellant. Argued: Gregory S.
Peterson.
APPEAL from the Franklin County Court of Common Pleas
BROWN, J.
{¶ 1} This is an appeal by defendant-appellant, Clare Armstrong, from a
judgment of conviction and sentence entered by the Franklin County Court of Common
Pleas following her entry of an "Alford"1 plea of guilty to one count of forgery.
{¶ 2} On November 7, 2014, appellant was indicted on three counts of forgery, in
violation of R.C. 2913.31(A) (all felonies of the fifth degree), and two counts of tampering
with records, in violation of R.C. 2913.42(A) (both felonies of the third degree). The
indictment alleged in part that appellant had aided and abetted with others in preparing
1 North Carolina v. Alford, 400 U.S. 25 (1970).
No. 16AP-410 2
documents containing the forged signature of Steven L. Hitchens, purporting to verify his
attendance at continuing education courses for nursing home administrators.
{¶ 3} On September 8, 2015, appellant filed a motion to dismiss the indictment,
asserting in part that plaintiff-appellee, State of Ohio, was limited to charging her with
respect to the penalties for fraud found under R.C. Chapter 4751, including the provisions
of R.C. 4751.09 and 4751.99, based on the fact the alleged conduct was related to the
renewal of a nursing home administrator license of appellant's employer, Hitchens. On
September 18, 2015, the state filed a memorandum contra. On February 11, 2016, the trial
court conducted a hearing on the motion. By decision and entry filed February 19, 2016,
the court denied appellant's motion to dismiss the indictment.
{¶ 4} On May 2, 2016, appellant entered an "Alford" plea of guilty to one count of
forgery, in violation of R.C. 2931.31(A), a felony of the fifth degree. The entry of guilty
plea indicated that the parties jointly recommended to the trial court a sentence of
community control. By judgment entry filed May 3, 2016, the trial court imposed a
sentence of three years community control.
{¶ 5} On appeal, appellant sets forth the following two assignments of error for
this court's review:
[I.] THE TRIAL COURT ERRORED IN DENYING
APPELLANT'S MOTION TO DISMISS BASED UPON
COMPREHENSIVE STATUTORY PROCEDURE PROVIDED
BY O.R.C. CHAPTER 4751.
[II.] THE TRIAL COURT ERRORED IN DENYING
APPELLANT'S MOTION TO DISMISS THE INDICTMENT
AS VIOLATING THE DUE PROCESS CLAUSES OF THE
CONSTITUTIONS OF THE UNITED STATES AND STATE
OF OHIO.
{¶ 6} Appellant's two assignments of error are interrelated and will be considered
together. Under these assignments of error, appellant asserts the trial court erred in
denying her motion to dismiss the indictment on both statutory and due process grounds.
{¶ 7} At the outset, we note the state raises an argument as to whether appellant
has preserved the right to appeal the rulings of the trial court as set forth in her
assignments of error. Specifically, the state maintains that appellant waived her right to
No. 16AP-410 3
challenge the trial court's denial of her pre-trial motion to dismiss by entering an Alford
plea of guilty to one count of forgery pursuant to a plea agreement with the state.
{¶ 8} In general, "if a defendant enters a guilty plea, such plea acts as a waiver of
an individual's right to raise most issues on appeal." State v. Benman, 10th Dist. No.
03AP-1012, 2004-Ohio-3935, ¶ 12. See also State v. Legg, 4th Dist. No. 14CA23, 2016-
Ohio-801, ¶ 12 ("a voluntary, knowing, and intelligent guilty plea waives any alleged
constitutional violations unrelated to the entry of the guilty plea and nonjurisdictional
defects in the proceedings").
{¶ 9} As noted under the facts, appellant entered an Alford plea of guilty based on
North Carolina v. Alford, 400 U.S. 25 (1970). This type of plea "is predicated upon the
defendant's desire to obtain a lesser penalty rather than risk the consequences of a jury
trial." Benman at ¶ 12. Ohio courts have "recognized that an Alford plea is 'a species of a
guilty plea, which, in effect, waives a defendant's right to raise most issues on appeal.' "
State v. Gilmer, 6th Dist. No. L-12-1079, 2013-Ohio-3055, ¶ 6, quoting State v. Ware, 6th
Dist. No. L-08-1050, 2008-Ohio-6944, ¶ 12. See also State v. Darks, 10th Dist. No.
05AP-982, 2006-Ohio-3144, ¶ 14, quoting State v. Carter, 124 Ohio App. 3d 423, 429 (2d
Dist.1997) ("An Alford plea is 'merely a species of a guilty plea, having the effect of
waiving [a defendant's] right to appeal.' ").
{¶ 10} In arguing appellant waived the right to raise the issues presented on
appeal, the state relies on case law generally holding that a plea of guilty waives a
defendant's ability to challenge the denial of pretrial motions. See, e.g., Huber Heights v.
Duty, 27 Ohio App. 3d 244 (2d Dist.1985) (declining to reach merits of trial court's failure
to grant motion to suppress where defendant entered guilty pleas to offenses); State v.
McPherson, 8th Dist. No. 82558, 2004-Ohio-5202, ¶ 5 ("By entering a guilty plea,
defendant waived his right to appeal the court's rulings on pretrial motions."); State v.
Mastice, 2d Dist. No. 10154 (June 8, 1987) (defendant's guilty plea operated as a waiver of
claimed errors by trial court in overruling pretrial motions to suppress evidence and for
separate trials).
{¶ 11} In response to the state's waiver argument, appellant contends the issues
raised in her appeal implicate the trial court's subject-matter jurisdiction which, appellant
notes, cannot be waived. See, e.g., State v. Kremer, 3d Dist. No. 15-05-05, 2006-Ohio-
No. 16AP-410 4
736, ¶ 5 ("Subject matter jurisdiction refers to the authority of the court to hear a matter
and may not be waived.").
{¶ 12} Specifically, appellant argues the trial court lacked subject-matter
jurisdiction to accept the plea in this case based on her contention that the state, pursuant
to R.C. 1.51, could only have charged her with a misdemeanor under a special provision of
R.C. Chapter 4751 (i.e., R.C. 4751.09) rather than with a felony under a general criminal
provision (i.e., forgery under R.C. 2913.31 and/or tampering with records under R.C.
2913.42).2 As such, appellant maintains that her guilty plea did not waive the issue of
whether she could only have been charged under a special statutory provision.
{¶ 13} Even assuming that appellant's Alford plea of guilty did not waive the issues
presented, we find unpersuasive appellant's contention that she could only have been
charged with a misdemeanor under R.C. 4751.09. As indicated, appellant's argument is
predicated on her contention that R.C. Chapter 4751, pertaining to the requirements for
the administration of nursing homes (including licensure), is a special statutory provision
that prevails over conflicting general criminal code provisions.
{¶ 14} In considering the interpretation of statutes "and their application, an
appellate court conducts a de novo review, without deference to the trial court's
determination." State v. Sufronko, 105 Ohio App. 3d 504, 506 (4th Dist.1995). Under
Ohio law, "[p]rinciples of statutory construction require that specific statutory provisions
prevail over conflicting general statutes." Id., citing State v. Volpe, 38 Ohio St. 3d 191, 193
(1988).
{¶ 15} R.C. 1.51 states as follows:
If a general provision conflicts with a special or local
provision, they shall be construed, if possible, so that effect is
given to both. If the conflict between the provisions is
irreconcilable, the special or local provision prevails as an
exception to the general provision, unless the general
provision is the later adoption and the manifest intent is that
the general provision prevail.
2 Under Ohio law, a court of common pleas "has original jurisdiction in felony cases and its jurisdiction is
invoked by the return of an indictment." State v. Hillman, 10th Dist. No. 06AP-1230, 2008-Ohio-2341, ¶ 41.
While appellant challenges whether the state could charge her under a general provision based on her
contention that a more special provision prevails, we do not construe appellant's argument as otherwise
challenging the jurisdiction of the trial court over the charged offenses (i.e., felony fifth-degree forgery and
felony third-degree tampering with records).
No. 16AP-410 5
{¶ 16} In State v. Chippendale, 52 Ohio St. 3d 118 (1990), the Supreme Court of
Ohio "provided a framework in which to analyze a conflict between general and special
provisions." State ex rel. Dublin Sec. v. Ohio Div. of Sec., 68 Ohio St. 3d 426, 430 (1994).
Specifically, the court in Chippendale held in part:
[I]t is critical in the first instance to determine whether the
statutes upon which the prosecution seeks to proceed are
general, special or local. If the statutes are general and do not
involve the same or similar offenses, then R.C. 1.51 is
inapplicable.
However, if one of the statutes is general and one specific and
they involve the same or similar offenses, we must then ask
whether the offenses constitute allied offenses of similar
import.
To summarize, R.C. 1.51 comes into play only when a general
and a special provision constitute allied offenses of similar
import and additionally do not constitute crimes committed
separately or with a separate animus for each crime. When
this is the case, we must proceed with our analysis of R.C. 1.51.
Id. at 120.
{¶ 17} Thus, a conflict arises "when the same conduct receives different penalties
under two different statutes." State v. Hardy, 2d Dist. No. 27158, 2017-Ohio-7635, ¶ 49.
However, if the offenses "are not allied offenses of similar import they are not
irreconcilable under R.C. 1.51." Id.
{¶ 18} In determining whether offenses are allied offenses of similar import, "the
Ohio Supreme Court held that courts must evaluate 'the conduct, the animus, and the
import.' " State v. Stewart, 10th Dist. No. 16AP-884, 2017-Ohio-7840, ¶ 43, quoting State
v. Ruff, 143 Ohio St. 3d 114, 2015-Ohio-995, paragraph one of the syllabus. In Ruff, at
paragraph three of the syllabus, the Supreme Court held that, pursuant to R.C.
2941.25(B), "a defendant whose conduct supports multiple offenses may be convicted of
all the offenses if any one of the following is true: (1) the conduct constitutes offenses of
dissimilar import, (2) the conduct shows that the offenses were committed separately, or
(3) the conduct shows that the offenses were committed with separate animus."
{¶ 19} With respect to the charged offenses in the instant case, R.C. 2913.31 sets
forth the elements of forgery, and states in part as follows:
No. 16AP-410 6
(A) No person, with purpose to defraud, or knowing that the
person is facilitating a fraud, shall do any of the following:
(1) Forge any writing of another without the other person's
authority;
(2) Forge any writing so that it purports to be genuine when it
actually is spurious, or to be the act of another who did not
authorize that act, or to have been executed at a time or place
or with terms different from what in fact was the case, or to be
a copy of an original when no such original existed;
(3) Utter, or possess with purpose to utter, any writing that
the person knows to have been forged.
{¶ 20} Appellant was also charged with (but did not enter a plea to) the offense of
tampering with records, pursuant to R.C. 2913.42, which states as follows:
(A) No person, knowing the person has no privilege to do so,
and with purpose to defraud or knowing that the person is
facilitating a fraud, shall do any of the following:
(1) Falsify, destroy, remove, conceal, alter, deface, or mutilate
any writing, computer software, data, or record;
(2) Utter any writing or record, knowing it to have been
tampered with as provided in division (A)(1) of this section.
{¶ 21} R.C. Chapter 4751 governs nursing home administrators, including
licensing requirements. R.C. 4751.09(A) states that "[n]o person shall * * * [s]ell or
fraudulently obtain or furnish any license, or temporary license, or aid or abet therein."3
{¶ 22} Appellant asserts that R.C. Chapter 4751 sets forth a comprehensive special
statutory procedure, including a provision addressing fraud. Appellant further contends
the offenses set forth in the nursing home licensing statute and the general criminal code
are allied offenses of similar import and were committed with the same animus. Thus,
appellant argues, the trial court erred in denying the motion to dismiss the indictment
charging the more general felony offenses of forgery and tampering with records.
3R.C. 4751.99 sets forth the penalties for a violation of R.C. 4751.09, and states as follows: "Whoever violates
section 4751.02 or 4751.09 of the Revised Code may be fined not more than five hundred dollars for the first
offense; for each subsequent offense such person may be fined not more than five hundred dollars or
imprisoned for not more than ninety days, or both."
No. 16AP-410 7
{¶ 23} In response, the state argues that R.C. 4751.09(A) is not a special or local
provision in relation to the charged offenses, nor are the charged offenses of forgery and
tampering with records allied offenses of similar import with R.C. 4751.09(A). In support
of its argument, the state relies in part on this court's decision in Columbus v. Clark, 10th
Dist. No. 14AP-719, 2015-Ohio-2046.
{¶ 24} In Clark, the appellant was convicted and sentenced in municipal court for
resisting arrest under Columbus General Offenses Code 2321.33. On appeal, the
appellant challenged her conviction, asserting that "principles of statutory construction
require the specific statutory provision that addresses resisting enforcing officials in
traffic situations, City Traffic Code 2109.03, 'prevail' over the general resisting arrest
statute, City General Offenses Code 2321.33, because both sections provide different
penalties for the same conduct." Id. at ¶ 13. The appellant in Clark argued that her
conviction was in violation of the Supreme Court's decision in Volpe, which she cited "for
the rule that '[w]ell-established principles of statutory construction require that specific
statutory provisions prevail over conflicting general statutes.' " Id. at ¶ 17, quoting Volpe
at 193.
{¶ 25} In considering the applicable law and statutes, this court held in part:
We find the character of these two statutes, compared, do not
fit the mold of "general" and "special or local" provisions and,
therefore, do not trigger an analysis under R.C. 1.51. City
General Offenses Code 2321.33 includes the element of
reckless or forceful behavior and the element of lawful arrest,
both which are unnecessary for conviction under City Traffic
Code 2109.03. Even if characterized as a general and a
specific statute, they are not "irreconcilable" and can be
construed "so that effect is given to both." R.C. 1.51.
Specifically, each statute provides a different penalty for a
different course of conduct. * * * City General Offenses Code
2321.33 addresses resisting situations in any context where
the person uses force or acts recklessly, while City Traffic
Code 2109.03 addresses resisting situations in traffic contexts
where the person does not use force or act recklessly. The
slightly harsher penalty attached to City General Offenses
Code 2321.33 reflects a higher degree of culpability attached
to a person's use of force or reckless behavior.
Clark at ¶ 23.
No. 16AP-410 8
{¶ 26} The state argues that, similar to Clark, R.C. 4751.09 does not contain the
same culpability or mens rea required for the charged offenses. We agree.
{¶ 27} As set forth above, R.C. 2913.31 provides in part that "[n]o person, with
purpose to defraud, or knowing that the person is facilitating a fraud, shall * * * [f]orge
any writing so that it purports to be genuine when it is actually spurious," or "[u]tter, or
possess with purpose to utter, any writing that the person knows to have been forged."
(Emphasis added.) Thus, the culpable mental state under R.C. 2913.31 is "purpose" or
"knowing." See also State v. Brown, 2d Dist. No. 10403 (Jan. 20, 1988) ("A necessary
element of forgery is that it be accompanied by a purpose to defraud or the knowledge
that it is facilitating a fraud."). Similarly, tampering with records requires the mental
state of "knowing" and "purpose." See, e.g., State v. Hayes, 7th Dist. No. 07-MA-134,
2008-Ohio-4813, ¶ 67 ("In order to commit a violation of [R.C.] 2913.42(A)(1), the
offender must act knowingly and with the purpose to defraud.").
{¶ 28} By contrast, R.C. 4751.09 does not state a mens rea or culpable mental state.
Under Ohio law, "[s]ituations involving strict liability and statutes that do not discuss
culpability" are addressed under R.C. 2901.21.4 State v. Stansell, 2d Dist. No. 23630,
2010-Ohio-5756, ¶ 15. In this respect, R.C. 2901.21 provides a rule "for determining
whether statutes not specifying any culpable mental state impose strict liability or instead
require some level of culpability, that is, recklessness." State v. Tolliver, 140 Ohio St. 3d
420, 2014-Ohio-3744, ¶ 14. Thus, pursuant to the provisions of R.C. 2901.21, where a
statute is silent as to a culpable mental state, the statute "imposes either strict criminal
liability or, at most, requires the state to prove that an accused acted recklessly." State v.
Frey, 166 Ohio App. 3d 819, 2006-Ohio-2452, ¶ 17 (4th Dist.). See also State v. Ferguson,
2d Dist. No. 08CA0050, 2011-Ohio-4285, ¶ 27 (noting that where statute "is silent as to
any culpable mental state," and "does not plainly indicate a purpose to impose strict
liability, * * * recklessness is the default culpable mental state that applies").
4 R.C. 2901.21(B) states in part: "When language defining an offense does not specify any degree of
culpability, and plainly indicates a purpose to impose strict criminal liability for the conduct described in the
section, then culpability is not required for a person to be guilty of the offense." R.C. 2901.21(C)(1) states:
"When language defining an element of an offense that is related to knowledge or intent or to which mens
rea could fairly be applied neither specifies culpability nor plainly indicates a purpose to impose strict
liability, the element of the offense is established only if a person acts recklessly."
No. 16AP-410 9
{¶ 29} In the present case, in denying appellant's motion to dismiss, the trial court
determined that the charging statutes had a different mens rea or level of culpability than
R.C. 4751.09. We agree, as the charged offenses set forth a mens rea of purpose or
knowingly, while R.C. 4751.09 implicates a lesser mens rea of recklessness (or is a strict
liability offense that has no mens rea). Moreover, the offense of forgery requires the
forging of a "writing" (or the uttering of a "writing"),5 whereas the plain language of R.C.
4751.09, which proscribes the act of fraudulently obtaining a license, does not require a
writing (or document) with respect to the fraudulent conduct. Thus, a violation of R.C.
4751.09 would not necessarily result in a violation of either R.C. 2913.31 or 2913.42.
{¶ 30} Because the charging statutes do not contain the same mens rea or
culpability as R.C. 4751.09, nor do they prohibit the same conduct, we agree with the state
that they are not allied offenses of similar import. As such, and "[e]ven if categorized as a
general and a specific statute," the statutes at issue are not irreconcilable and "do not
trigger an analysis under R.C. 1.51." Clark at ¶ 23. Accordingly, the trial court did not err
in failing to grant appellant's pretrial motion to dismiss the indictment on statutory
grounds.
{¶ 31} We also find no merit with appellant's contention that the trial court erred
in failing to dismiss the indictment on due process grounds. Appellant points to language
in an administrative application form for annual license renewal which contained a
warning that misrepresentation or falsification on the application may result in
suspension or revocation of a nursing home administrator license. According to
appellant, the state's attempt to impose a more severe criminal consequence than that set
forth in the application was a violation of fundamental due process. We disagree.
{¶ 32} In general, "the decision whether or not to prosecute and what charge to file
or bring" rests within the discretion of the prosecutor. State v. Cecil, 10th Dist. No. 84AP-
999 (Oct. 17, 1985). Accordingly, a prosecutor's "charging discretion" is ordinarily beyond
the purview of appellate review "so long as the complaints and indictments are based on
5 Tampering with records, pursuant to R.C. 2913.42, similarly requires a "writing" or "record." Further,
third-degree tampering with records, as charged in the indictment in the instant case, restricts "the type of
statements proscribed to writings, computer software, data, or records which are kept by a government
entity." State v. Chandler, 11th Dist. No. 2015-T-0033, 2016-Ohio-1017, ¶ 20.
No. 16AP-410 10
the statutory elements of the offense." State v. Ziegelhofer, 6th Dist. No. WD-02-038,
2003-Ohio-1404, ¶ 12.
{¶ 33} The fact that a defendant's conduct may violate more than one statute "does
not force the state to prosecute [such defendant] under the lesser statute." State v.
Cooper, 66 Ohio App. 3d 551, 553 (4th Dist.1990). Further, the fact that a prosecutor
"may be influenced by the penalties available upon conviction, * * * standing alone, does
not give rise to a violation of the * * * Due Process Clause." United States v. Batchelder,
442 U.S. 114, 125 (1979). Nor is the state "required to proceed against a defendant under
a specific statute where the specific and general statute 'each provides a different penalty
for a different course of conduct' and are therefore reconcilable." Clark at ¶ 19, quoting
State v. Culwell, 10th Dist. No. 96APA04-504 (Nov. 26, 1996).
{¶ 34} In the instant case, appellant does not contend she did not have fair notice
of the charged offenses under the indictment. Further, we have previously noted that R.C.
4751.09 and the charging statutes do not prohibit identical conduct. We also find
unpersuasive appellant's contention that, based on her reliance on warning language on
an application form pertaining to licensed nursing home administrators, she could not
have been aware that a scheme to forge (0r conspire to forge) attendance records could
subject her to criminal liability under Ohio's felony forgery statute. Even accepting that
appellant relied on language set forth in an administrative application form as somehow
limiting her potential criminal liability, appellant cites no authority for the proposition
that the state was estopped, on due process grounds, from pursuing a prosecution for
forgery (or complicity to commit forgery) under such circumstances. On review, the trial
court did not err in failing to grant the motion to dismiss the indictment as violative of
due process.
{¶ 35} Based on the foregoing, appellant's first and second assignments of error
are overruled, and the judgment of the Franklin County Court of Common Pleas is hereby
affirmed.
Judgment affirmed.
TYACK, P.J., and LUPER SCHUSTER, J., concur.
_______________________ | 01-03-2023 | 11-28-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4224043/ | [Cite as Iske v. Iske, 2017-Ohio-8717.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Cynthia S. Iske, :
Plaintiff-Appellee, :
No. 17AP-215
v. : (C.P.C. No. 15DR-4321)
Randy G. Iske, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on November 28, 2017
On brief: Harry Lewis Co., LPA, and Gregg R. Lewis, for
appellee. Argued: Gregg R. Lewis.
On brief: Kokensparger Ryan Legal Group, Steven J.
Kokensparger, and Corinne N. Ryan, for appellant.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations
BRUNNER, J.
{¶ 1} Defendant-appellant, Randy G. Iske, appeals from a February 22, 2017
judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations,
issuing a decree of divorce and dividing assets of the parties. The parties concede, and we
agree, that the trial court erred in considering Randy's1 Oppenheimer Funds to be both a
separate asset and a marital asset. Thus we sustain the second assignment of error. We
also agree that the trial court's order that the parties "equalize[]" retirement accounts,
including Social Security, is ambiguous. (Feb. 22, 2017 Am. Decree, Decision, & Entry at
22.) However, we construe that statement as dictating that Social Security accounts are not
to be divided and should only be considered for the purposes of dividing plaintiff-appellee's,
1 Because the parties share the same last name, for ease of reference we refer to them by first name.
No. 17AP-215 2
Cynthia S. Iske, State Teachers Retirement System ("STRS") pension. Hence we sustain in
part and overrule in part Randy's third assignment of error. We find no merit in Randy's
remaining two assignments of error and overrule them. Based on our disposition of the
assignments of error, we reverse the decree of the trial court in part and direct that the trial
court modify its decree to treat Randy's Oppenheimer Funds as a separate asset and enforce
its decree in regard to retirement accounts with the understanding that Social Security
accounts are not to be divided and may only be considered for the purposes of dividing a
public pension. In all other respects, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On November 20, 2015, Cynthia filed a complaint for divorce against her
husband, Randy. (Nov. 20, 2015 Compl.) The parties were able to resolve many of their
differences by agreement and stipulation. Nearly a year later, on October 31, 2016, the trial
court held a bench trial on unresolved issues. According to stipulations executed
immediately prior to trial, the issues to be resolved by trial were the value of a family farm
property in Iowa, the relative separate property interests of each party in the marital
residence on Kul Circle, and the termination date of the marriage (which would affect the
division of bank accounts and retirement accounts). (Oct. 31, 2016 Pretrial Stip. at 4-5, filed
Nov. 1, 2016.)
{¶ 3} Three witnesses testified at the October trial; Cynthia, Randy, and their son,
Nicholas Iske. (Tr., filed Apr. 25, 2017.) In addition to the live testimony, the parties
submitted the deposition testimony of two stipulated experts on the likely value of the
farmland owned jointly by the parties. (Van Zee Dep., filed Oct. 24, 2016; Smith Dep., filed
Oct. 28, 2016.) We review the testimony of these witnesses as is relevant to the issues
contested in this appeal.
{¶ 4} Cynthia testified first. She testified that she and Randy were married on
June 24, 1995. (Tr. at 8.) She moved out of the marital residence on May 8, 2016 and
rented an apartment. (Tr. at 12-13.) She testified that moving out and ending the marriage
was entirely her decision and that there were no attempts at reconciliation. (Tr. at 17-19,
27.) She admitted that she and her husband had discussed counseling and that each party
had offered to engage in counseling at one point in time. (Tr. at 28.) However, the offers
took place at different times and, in each instance, when one of them was ready to engage
No. 17AP-215 3
in counseling, the other was not. Id. She testified that she was not seeing anyone else but
had stopped socializing with her husband by fall 2015. (Tr. at 17, 19.)
{¶ 5} On the topic of finances, she testified consistent with the pretrial stipulation
that she had her own retirement that was funded from her own earnings. (Tr. at 26-27;
Pretrial Stip. at 4.) Neither her testimony nor the stipulation expressly indicated whether
she could expect to receive Social Security distributions in retirement. She testified that the
Iowa farm property deed indicates that she and Randy owned it as joint tenants. (Tr. at 21;
see also Smith Dep., Ex. 6, filed Oct. 28, 2016.) In her testimony she agreed that although
she owned a house on Maidens Larne Drive prior to the marriage, that Randy paid the
mortgage on the property once they moved in together and that they both invested money
in the house in the form of renovations. (Tr. at 23-24.) She therefore admitted that the
$16,782.60 proceeds from the sale of the Maidens Larne house (which were used to buy
their current marital residence on Kul Circle) were marital property. (Tr. at 24-25; Pl.
Ex. 3.)
{¶ 6} Randy confirmed that he and Cynthia were married on June 24, 1995. (Tr. at
38.) He testified that he considered his marriage over the day his wife told him it was, at
the end of August 2015. (Tr. at 93.) He said that he offered to do counseling with her, but
she told him she had already made up her mind that it was over. (Tr. at 93-94.)
{¶ 7} Randy testified that when he and Cynthia bought a house on Kul Circle, he
took $22,731.38 from his premarital account with Oppenheimer Funds, and contributed
that to the down payment. (Tr. at 42; Def. Ex. C.) He testified that after his wife moved
out, he paid off the mortgage on the Kul Circle property. (Tr. at 70-72.) He testified that
the money used to pay off the mortgage came entirely from his work earnings. (Tr. at 91.)
{¶ 8} With respect to the Iowa property, Randy explained that his father had owned
320 acres of farmland in Iowa. (Tr. at 49.) His father divided it up into four parcels of
approximately 80 acres and gave one parcel to Cynthia and Randy jointly and one parcel
apiece to each of Randy's three brothers. (Tr. at 50.) The parties stipulated that if their 80
acres were sold, $30,000 would go to Randy's brother, Michael, because that brother had
taken on the responsibility of working the farmland in order to satisfy certain loans
originally obtained by Randy's father. (Tr. at 54.) Randy also testified that a sum of money
would have to be paid to his mother to pay her for the remainder of her life estate in the
No. 17AP-215 4
property. (Tr. at 53-54.) When one of Randy's other brothers, Alfred, sold his 80 acres, he
was compelled to fund an annuity to pay his mother $700 per month for 10 years. (Tr. at
53-55.) Randy stated that if the property were sold, he would have to compensate his
mother according to the same terms. (Tr. at 58.) In addition, he explained (and his son,
Nicholas Iske, confirmed) that Randy agreed to pay his sister $50,000 from the proceeds
of any sale as a matter of fairness, since she had been left out of the original gift of farmland.
(Tr. at 63-64, 77-79.) Randy and Nicholas also testified that Cynthia was aware of this
agreement and had not evinced disagreement with it. (Tr. at 61-62, 80.)
{¶ 9} The first expert to testify, by way of deposition, was John Van Zee, a real
estate sales associate with Farmers National Company. (Van Zee Dep. at 7.) He testified
that he did a market analysis with comparable sales in order to arrive at an appropriate
price per acre per Corn Suitability Rating point (CSR1).2 Id. at 13-14; see also Van Zee Dep.,
Ex. 1, filed Oct. 24, 2016. Comparable sales for a market analysis consisted of nearby recent
actual sales of cropland, discounted where appropriate to avoid counting proceeds related
to non-crop land or buildings. (Van Zee Dep. at 16-18; Van Zee Dep., Ex. 1 at 1.) Using this
analysis, Van Zee calculated an average price of $100.52 per CSR1 point per acre. (Van Zee
Dep., Ex. 1 at 1.) He multiplied this by the 71.1 tillable acres contained within Randy and
Cynthia's property and the CSR1 rating for the land (65.1) to obtain a value of $465,278.
Id. at 2. To this he also added a figure for the 6.9 acres of timbered land included within
the property at an estimated value of $2,000 per acre. Id. Thus his total forecasted market
value for the land was $479,078. Id. The market value estimate did not include any value
for buildings on the land. Id. He testified that the estimate was not an appraisal (which
would have also included an income and cost approach) but solely an opinion as to the likely
market price the land would fetch. (Van Zee Dep. at 21; Van Zee Dep., Ex. 1 at 2.)
{¶ 10} The second expert to testify by deposition was Ken Smith, an attorney who
assists in farmland transactions and owns one-third interest in a 7,413-acre farming
operation in Ukraine. (Smith Dep. at 5-6, 42, 50.) Smith also testified as a fact witness
because he was one of the attorneys who was involved in the negotiation of Randy's
2 Van Zee admitted that, effective in January 2016, CSR1 was replaced by CSR2, which takes into account
improvements in land production due to improved tilling, terracing, seed technology, herbicides, and other
technology. (Van Zee Dep. at 19.) He testified, however, that CSR2 values are higher, and thus, if anything,
his price forecast would be heightened by the use of CSR2 figures. Id. at 19-20, 48-49.
No. 17AP-215 5
mother's life estate and the sale of part of the original 320 acres by Randy's brother, Alfred.
Id. at 6-30. Smith explained that the farm was transferred in four parcels to the four
brothers due to debt trouble incurred by the parents but that the parents had intended to
reserve a life estate for themselves. Id. at 6-14. Due to an error by another attorney
however, the life estate was not properly reserved. Id. at 12-14. Thus there was some
litigation and negotiation after Randy's father died when the first brother sought to sell his
80 acres. Id. at 14-16. Smith confirmed that Randy's brother Michael had farmed the land
and helped pay off the debt on the farm and that Michael had received payment from Alfred
on the sale of Alfred's land. Id. at 20-21. Smith also confirmed that an annuity was created
from Alfred's sale of his parcel in favor of Randy's mother in exchange for a quit-claim of
her interest in Alfred's 80 acres. (Smith Dep. at 41; Smith Dep., Exs. 4-5.) He opined that
a similar claim would be made if Randy and Cynthia were to sell their parcel. (Smith Dep.
at 41.) Smith also confirmed that some of the brothers have agreed to make a payout to
their sister on sale of the land due to the fact that she was otherwise left out of the original
land gift. (Smith Dep. at 48-49.)
{¶ 11} On the topic of estimated value, Smith testified that the Iske farm is worth
$280,000. Id. at 40; Smith Dep., Ex. 7. He explained that it is a "rolling" farm, the contours
and borders of which make it less valuable to potential mega farm purchasers. (Smith Dep.
at 32-41.) Smith testified, moreover, that based on sales he had recently participated in, he
thought prices had lately dropped. Id. at 43-44; see also Smith Dep., Ex. 7. But he could
not recall any specifics of the sales that he had participated in that led him to believe prices
had fallen in the area. (Smith Dep. at 54-56.) He was also not definite about whether his
$280,000 figure took account of the life estate and other debts and agreements related to
the property. Compare Id. at 40-41 with Smith Dep., Ex. 7.
{¶ 12} Following closing briefs by the parties, the trial court, on January 6, 2017,
issued a divorce decree and entry. (Jan. 6, 2017 Decree, Decision, & Entry.) Randy moved
for a new trial based on a number of alleged errors in the trial court's decision. (Feb. 3,
2017 Mot. for New Trial.) The trial court declined to grant a new trial, but, due to the
presence of a number of clerical errors, the trial court issued an amended decree and entry
on February 22, 2017. (Feb. 22, 2017 Am. Decree, Decision, & Entry; Feb. 22, 2017 Decision
& Entry Denying Mot. for New Trial.)
No. 17AP-215 6
{¶ 13} In the amended decree the trial court made a number of rulings relevant to
this appeal. It decided that the termination date of the marriage would be the date of the
final hearing in the case. (Feb. 22, 2017 Am. Decree, Decision, & Entry at 5-8.) It found
that there was insufficient evidence from which to conclude that Randy's payoff of the Kul
Circle mortgage was accomplished solely with his separate property. Id. at 11. It stated that
the Oppenheimer Fund moneys were Randy's separate property but also not his separate
property. Id. at 10, 21. It listed all the retirement accounts (an unknown amount for
Randy's accrued Social Security value, $8,778.34 for Cynthia's STRS accrued value, nothing
for Cynthia's Social Security accrued value, and various accrued value account totals for the
privately-held accounts) and then directed that, "the plans shall be equalized between the
parties." Id. at 22. It found Van Zee's analysis more credible than Smith's and adopted his
CSR1 valuation of $479,078. Id. at 16. The trial court also decided that Randy's brother
(Michael) and his sister were due $30,000 and $50,000, respectively, from any proceeds.
Id. at 16-19. Finally, the trial court concluded that Randy's mother had a life estate interest
in the property similar to the interest recognized when Alfred sold his 80 acres and that, of
the 10 years estimated for her life estate when Alfred sold his property, 53 months remained
on the farm property owned by Randy and Cynthia. Id. The trial court found the obligation
owed to Randy's mother to buy her interest in the property to be $700 per month for 53
months, or $37,100. Id. The trial court calculated the remaining marital value of the Iowa
farmland to be $361,978, and it ordered Randy to pay the sum of $180,989 to Cynthia
within 18 months or on the sale of the property, whichever occurred first. Id. at 19-20.
{¶ 14} Randy now appeals.
II. ASSIGNMENTS OF ERROR
{¶ 15} Randy asserts four assignments of error for review:
[1.] THE TRIAL COURT ERRED IN ITS DETERMINATION
OF THE DE FACTO DATE OF DIVORCE FOR PURPOSES OF
PROPERTY DIVISION.
[2.] THE TRIAL COURT ERRED IN TREATING
APPELLANT'S PRE-MARITAL ACCOUNTS AS MARITAL
EVEN AFTER THE COURT HAD DETERMINED THE VERY
SAME ACCOUNTS TO BE THE SEPARATE PROPERTY OF
THE APPELLANT IN OTHER SECTIONS OF THE DECREE.
No. 17AP-215 7
[3.] THE TRIAL COURT ERRED IN INCLUDING
APPELLANT'S SOCIAL SECURITY RETIREMENT
CONTRIBUTIONS IN THE RETIREMENT ACCOUNTS
WHICH WERE TO BE "NETTED OUT".
[4.] THE TRIAL COURT ERRED IN ADOPTING ITS OWN
FORMULA FOR DETERMINING THE LEGAL AND
ECONOMIC VULNERABILITY OF THE PARTIES IN THE
POTENTIAL SALE OF THE IOWA PROPERTY RATHER
THAN RELYING UPON THE TESTIMONY OF THE EXPERT
WITNESSES.
(Emphasis sic.)
III. DISCUSSION
A. Standard of Review
{¶ 16} We have previously explained the standard for reviewing a trial court's
disposition of marital property:
A domestic relations court enjoys broad discretion in
fashioning a division of marital property, and its decision will
not be reversed absent an abuse of that discretion. Kaechele v.
Kaechele (1988), 35 Ohio St. 3d 93, 95, 518 N.E.2d 1197. The
term "abuse of discretion" connotes more than an error of law
or judgment; rather, it implies that the court's attitude was
unreasonable, arbitrary or capricious. Blakemore v.
Blakemore (1983), 5 Ohio St. 3d 217, 219, 5 Ohio B. 481, 450
N.E.2d 1140. A reviewing court may not substitute its judgment
for that of the trial court unless, considering the totality of the
circumstances, the trial court abused its discretion. Holcomb v.
Holcomb (1989), 44 Ohio St. 3d 128, 131, 541 N.E.2d 597. A
court should not review discrete aspects of a property division
out of the context of the entire award. Baker v. Baker (1992),
83 Ohio App. 3d 700, 702, 615 N.E.2d 699. Rather, a court
should consider whether the trial court's disposition of marital
property as a whole resulted in a property division which was
an abuse of discretion. Id.
Hamad v. Hamad, 10th Dist. No. 06AP-516, 2007-Ohio-2239, ¶ 54.
{¶ 17} Notwithstanding the overarching standard of review, previous decisions of
this Court support the view that it is legitimate for an appellate court to review factual
determinations of the trial court for manifest weight and sufficiency. Hamad at ¶ 56, 61;
Mantle v. Sterry, 10th Dist. No. 02AP-286, 2003-Ohio-6058, ¶ 31; see also Irvin v.
Eichenberger, 10th Dist. No. 16AP-657, 2017-Ohio-5601, ¶ 40, fn. 5. Furthermore, this
No. 17AP-215 8
Court has frequently remarked that " 'no court has the authority, within its discretion, to
commit an error of law.' " JPMorgan Chase Bank, N.A. v. Liggins, 10th Dist. No. 15AP-
242, 2016-Ohio-3528, ¶ 18, quoting State v. Akbari, 10th Dist. No. 13AP-319, 2013-Ohio-
5709, ¶ 7. Thus, we review the distribution of assets for abuse of discretion, we review
individual factual determinations for manifest weight and sufficiency, and we review
questions of law de novo.
B. First Assignment of Error – Whether the Trial Court Erred in Refusing
to Find a De Facto Termination Date
{¶ 18} Ohio statute defines the period of a marriage as follows:
(2) "During the marriage" means whichever of the following is
applicable:
(a) Except as provided in division (A)(2)(b) of this section, the
period of time from the date of the marriage through the date
of the final hearing in an action for divorce or in an action for
legal separation;
(b) If the court determines that the use of either or both of the
dates specified in division (A)(2)(a) of this section would be
inequitable, the court may select dates that it considers
equitable in determining marital property. If the court selects
dates that it considers equitable in determining marital
property, "during the marriage" means the period of time
between those dates selected and specified by the court.
R.C. 3105.171(A)(2)(a) and (b).
{¶ 19} Neither party contests the fact that the marriage began on June 24, 1995, nor
is there dispute as to the date of the "final hearing" in this matter. Rather, Randy argues
that the court erred and abused its discretion when it failed to find an earlier de facto
termination date with the result that he was deprived of 50 percent of the benefit of the Kul
Circle mortgage payoff. (Randy's Brief at 15-25.) That is, because he paid off the mortgage
after his wife moved out and he believed the marriage to be over (but before the final
hearing) Randy argues that such portion of the home's value should be considered his
separate property. Id.
{¶ 20} The Supreme Court of Ohio has instructed courts that the law for determining
the duration of marriage for the purpose of asset division must stand the test of fairness on
review:
No. 17AP-215 9
The choice of a date as of which assets available for equitable
distribution should be identified and valued must be dictated
largely by pragmatic considerations. The public policy giving
rise to equitable distribution is at least in part an
acknowledgment that marriage is a shared enterprise or joint
undertaking. While marriage is literally a partnership, it is a
partnership in which the contributions and equities of the
partners do differ from individual case to individual case.
Assets acquired by the joint efforts of the parties should be, on
termination, eligible for distribution. But the precise date upon
which any marriage irretrievably breaks down is extremely
difficult to determine, and this court will avoid promulgating
any unworkable rules with regard to this determination. It is
the equitableness of the result reached that must stand the test
of fairness on review.
Berish v. Berish, 69 Ohio St. 2d 318, 319-20 (1982). Additionally, we have focused on a
variety of factors to consider on a case-by-case basis. Rogers v. Rogers, 10th Dist. No.
96APF10-1333, 1997 Ohio App. LEXIS 4033, *11-17 (Sept. 2, 1997) (describing cases). One
factor is that the de facto termination of a marriage should be mutual; this avoids the
inequitable result of one party unilaterally engineering an advantageous termination date
for the division of assets. Farley v. Farley, 10th Dist. No. 99AP-1103, 2000 WL 1231091,
2000 Ohio App. LEXIS 3902, *18-23 (Aug. 31, 2000).
{¶ 21} Here the trial court recognized evidence from which it could determine a de
facto termination date:
1. The parties separated on May 8, 2016.
2. Neither party has or is presently cohabitating since
separation.
3. The parties have ceased intimate relations.
4. [Cynthia] retained counsel to proceed with a divorce in
September, 2015.
5. The divorce was filed on November 1, 2015.
6. The parties did not discuss terms for a separation prior to
[Cynthia] filing.
7. The parties essentially maintain[ed] separate finances
throughout the marriage with each party's income going to
specific obligations.
No. 17AP-215 10
8. There have been no meaningful attempts at reconciliation
prior to the filing of the divorce. Both parties considered
counseling, but no counseling ever took place.
9. Neither party is having an extramarital affair.
10. Neither party has taken a vacation with a member of the
opposite sex.
11. Neither party has been a host for any joint social get
together.
12. The parties finally separated all financial matters as of
August, 2016.
13. The parties have similar incomes.
14. The initial commencement of the divorce was a unilateral
decision made by [Cynthia] without [Randy's] knowledge or
agreement.
(Feb. 22, 2017 Am. Decree, Decision, & Entry at 7-8.) Among those findings, the trial court
made observations indicating it would be fair to consider the final hearing date the end date
of the marriage pursuant to R.C. 3105.171(A)(2)(a) rather than to name a de facto date. In
doing so, the trial court observed that the parties maintained separate finances throughout
the marriage and that they have similar incomes. (Feb. 22, 2017 Am. Decree, Decision, &
Entry at 7.)
{¶ 22} Upon review, the trial court observed the instruction of Berish, that "[i]t is
the equitableness of the result reached that must stand the test of fairness on review."
Berish at 320. And while there was ample evidence in this case to suggest that the marriage
was irretrievably on the path to ending before the final hearing, fixing an exact date for de
facto termination is (as the Berish court noted) "extremely difficult." Id. In this case, there
was no need to undertake that difficult task because there was no proof that either party
would disproportionately suffer (since incomes were relatively equal and the parties kept
their assets separate throughout the marriage) if the termination date remained the final
hearing date. (Feb. 22, 2017 Am. Decree, Decision, & Entry at 7.)
{¶ 23} Although Randy argues as he did at trial, that his payoff of the Kul Circle
house came solely from his earnings and not at all from joint property, his testimony on
this matter was somewhat ambiguous. (Randy's Brief at 15-25; Nov. 15, 2016 Randy's
No. 17AP-215 11
Closing Argument at 2-4.) He testified, for example, that the Huntington account (from
which the payoff of the Kul Circle house mortgage came) was funded at least in part from
joint accounts that he "managed." (Tr. at 65-72; Pl. Exs. 9, 11, 28.) And it is not clear from
Randy's testimony or the bank records that the approximately $20,000 transferred from
the Huntington account to pay off the Kul Circle mortgage came entirely from wages earned
by Randy after a point where the marriage had broken-down irretrievably.
{¶ 24} The trial court's factual findings were supported by the evidence and not
manifestly against its weight. In applying Berish to the trial court's findings, we find the
trial court fairly reached an equitable result for the parties in determining the marriage
termination date pursuant to R.C. 3105.171(A)(2)(a), and thus, we find no abuse of
discretion. Randy's first assignment of error is overruled.
C. Second Assignment of Error – Whether the Trial Court Erred in
Treating Randy's Oppenheimer Funds as Both Separate and Marital
Property
{¶ 25} On page 10 of its amended decree and entry, the trial court referred to
Randy's Oppenheimer accounts as separate property. (Feb. 22, 2017 Am. Decree, Decision,
& Entry at 10.) On page 21 it found, based on a disputed balance sheet filed with the parties'
pretrial stipulations, that the parties had a balance in the Oppenheimer account ending in
4609 of $26,648.30 of which $4,372.00 was Randy's separate property. Id. at 21; Pretrial
Stip. Randy argues, and Cynthia concedes, that this was error, that the balance sheet was
disputed, and that the Oppenheimer accounts were Randy's separate property. (Cynthia's
Brief at 17.)
{¶ 26} Randy's second assignment of error is sustained.
D. Third Assignment of Error – Whether the Trial Court Erred in
Considering Randy's Social Security but not Cynthia's in Making
Division of Assets
{¶ 27} An Ohio common pleas court is not empowered to order the division of Social
Security assets but, "[i]n making an equitable distribution of marital property in a divorce
proceeding, a trial court may consider the parties' future Social Security benefits in relation
to all marital assets." Neville v. Neville, 99 Ohio St. 3d 275, 2003-Ohio-3624, ¶ 6-11,
syllabus; accord Irvin at ¶ 41. An Ohio statute, enacted several years after Neville, provides
that a court may consider, "[a]ny retirement benefits of the spouses, excluding the social
No. 17AP-215 12
security benefits of a spouse except as may be relevant for purposes of dividing a public
pension." R.C. 3105.171(F)(9) (division (F)(9) first effective April 7, 2009).
{¶ 28} Randy now argues that the trial court erred in considering his Social Security
retirement when it did not also consider Cynthia's, and asks that we order the trial court to
only consider his Social Security contributions for the years in which Cynthia was not also
contributing to Social Security and was instead accumulating a public pension. (Randy's
Brief at 29.) But, although Cynthia apparently worked for some time in a job (Nationwide
Children's Hospital) in which she likely would have contributed to the Social Security
system, we do not find in the record any evidence of her contributions to Social Security or
some indication that is entitled to receive benefits at some future date. This apparent
deficiency of the record is corroborated by the trial court's statement in denying Randy's
motion for a new trial:
[Cynthia's] social security benefits were not provided in
evidence. However, [Randy's] Social Security Benefits were
included on the Balance Sheet filed November 1, 2016. [T]he
Court cannot consider information that is not provided to the
Court at the time of trial.
(Feb. 22, 2017 Decision & Entry on Motion for New Trial at 3.)
{¶ 29} "Appellate review is limited to the record as it existed at the time the trial
court rendered its judgment." Wiltz v. Clark Schaefer Hackett & Co., 10th Dist. No. 11AP-
64, 2011-Ohio-5616, ¶ 13 (collecting cases). The trial court could only consider evidence
before it in reaching its conclusions in a trial based on the evidence. The trial court did not
abuse its discretion in failing to consider evidence that was not presented.
{¶ 30} Randy also argues that the trial court erred when it ordered the parties to
"equalize[]" all the retirement plans because that might be understood to require division
of his Social Security or the use of it for a purpose other than "dividing a public pension."
(Randy's Brief at 29; Randy's Reply Brief at 5-6); R.C. 3105.171(F)(9). That is, the trial court
listed all the retirement accounts—an unknown amount for Randy's Social Security,
$8,778.34 for Cynthia's STRS, nothing for Cynthia's Social Security, and various account
totals for all the privately held accounts in each of their names. (Feb. 22, 2017 Am. Decree,
Decision, & Entry at 22.) Then the trial court directed that "the plans shall be equalized
between the parties." Id. We recognize that there may exist ambiguity in the trial court's
No. 17AP-215 13
directive to the extent it could be construed to imply that Randy's Social Security is to be
divided or considered other than for the purpose of dividing Cynthia's STRS. R.C.
3105.171(F)(9).
{¶ 31} Sometimes court judgments require interpretation by the same or another
court.
If the words and language in a judgment or decree are free of
ambiguity, and appear to express clearly and plainly the sense
intended, there is no need to resort to other means of
interpretation. Rohr v. Williams, 7th Dist. No. 06 MA 171,
2007-Ohio-7207, ¶ 21. "An ambiguous order is one that is
unclear or indefinite and is subject to more than one rational
interpretation." Id. at ¶ 22. "If the language is ambiguous, then
the trial court has broad discretion when clarifying that
ambiguous language." Id. If a judgment is susceptible to two
possible interpretations, we must adopt the interpretation
which gives effect to the judgment in its entirety without
eliminating part of the judgment. Ward v. Ward, 13 Ohio
App.3d 302, 303, 13 Ohio B. 368, 468 N.E.2d 1132 (10th
Dist.1983).
Murphy v. Murphy, 10th Dist. No. 12AP-1079, 2013-Ohio-5776, ¶ 37; see accord Scheel v.
Rock Ohio Caesars Cleveland, L.L.C., 8th Dist. No. 105037, 2017-Ohio-7174, ¶ 17. Although
the court's directive could be construed broadly and as being inapposite to the proscription
of dividing Social Security assets expressed in Neville and in R.C. 3105.171(F)(9), we
interpret it to be that Randy's Social Security is to be considered solely for the purpose of
dividing Cynthia's STRS.
{¶ 32} Randy's third assignment of error is overruled in part and sustained in part
so as to give full effect to the trial court's judgment.
E. Fourth Assignment of Error – Whether the Trial Court Erred in its
Valuation of the Iowa Farm Property
{¶ 33} The trial court made the factual finding that Van Zee's analysis was more
credible than Smith's and adopted Van Zee's valuation of the Iowa farmland, subject to the
court's factual findings concerning deductions necessary for debts or payments owed to
Randy's brother, mother, and sister. (Feb. 22, 2017 Am. Decree, Decision, & Entry at 16-
20.) Randy argues that the trial court erred in not finding Smith more credible than Van
Zee because Smith was familiar with the land in question and was not biased in favor of
high values. (Randy's Brief at 32.) Randy argues that because Smith is an attorney who
No. 17AP-215 14
earns most of his income from practice and Ukrainian farm ownership, Smith has little
incentive to inflate estimates, as opposed to Van Zee who earns his income from sales of
Iowa farmland. Id. Randy also argues Van Zee did not take into account debts and
payments to Randy's brother, mother, and sister that diminish the overall value of the
property. Id. at 33-35. Randy argues the trial court's valuation was speculative. Id.
{¶ 34} The parties stipulated that both Van Zee and Smith were experts. (Pretrial
Stip. at 5.) Van Zee was transparent about the method of his valuation, stating that he
determined the value of the land by calculating the average cost per acre per CSR1 point for
five comparable nearby recent sales. (Van Zee Dep. at 16-18.) He provided detailed
information about the recent sales including what was sold, for how much, when, and by
what means. Id.; Van Zee Dep., Ex. 1 at 1. He determined the value of the subject property
by multiplying CSR1 score by tillable acres by average regional price per acre and added an
estimated amount for each acre of timbered land to arrive at a value of $479,078. Id. at 2.
By contrast, Smith testified generally that the Iske farm was a "rolling" farm and not
attractive to mega farm purchasers. (Smith Dep. at 32-41.) His opinion affidavit was based
on the sales of two neighboring parcels, extrapolating that the price per acre should be only
approximately 60 percent of what Van Zee had calculated. (Smith Dep., Ex. 7.) But Smith
was unable to recall any specifics of the two sales which led him to opine on the price per
acre. (Smith Dep. at 54-56.) Nor was he definite about whether or not his $280,000
valuation included the life estate and other debts related to the property. Id. at 40-41; Smith
Dep., Ex. 7. Given this evidence, we cannot find that the trial court lost its way in
determining the credibility of these two expert witnesses such that its finding was
manifestly against the weight of the evidence.
{¶ 35} The trial court likewise did not err in crediting the parties' stipulation that
$30,000 was owed to Randy's brother, Michael. (Tr. at 54.) Based on the consistent
testimony of Randy and Nicholas, we do not find that the trial court erred in deducting from
its value $50,000 to pay to Randy's sister. (Tr. at 61-64, 77-80.) Nor was it against the
manifest weight of the evidence for the trial court to have concluded, based on the
deposition testimony of Smith, corroborated by Randy's testimony and exhibits to Smith's
deposition that Randy's mother had a life estate in Randy and Cynthia's 80 acres similar to
that which was determined when Alfred sold his 80 acres. (Smith Dep., Exs. 3-4; Smith
No. 17AP-215 15
Dep. at 15-22, 41; Tr. at 58.) Although Randy argues on appeal that his mother's life estate
could have changed in value, he testified at trial that, if the Iowa property were sold, he
would be required to compensate his mother according to the same terms as his brother,
Alfred. (Tr. at 58.) Based on the evidence before the trial court, it was not an abuse of
discretion to have multiplied the months left in Randy's mother's ten-year, annuity-based
life estate remainder, based on the sale of Alfred's land, by $700 per month and also to have
deducted that from the overall value of Randy and Cynthia's farm property. (Feb. 22, 2017
Am. Decree, Decision, & Entry at 19-20.)
{¶ 36} The trial court's findings regarding the Iowa property were supported by
sufficient evidence. Its evidentiary findings were not against the manifest weight of the
evidence before it. Once the trial court made its factual findings, it fairly adjudged how to
divide the parties' assets and did not abuse its discretion under the law. See Id. at 16-20.
We overrule Randy's fourth assignment of error.
IV. CONCLUSION
{¶ 37} The trial court followed the law in finding that the parties' marriage ended on
the date of the final hearing before it. It did not abuse its discretion in failing to find a de
facto termination date for the marriage. As the finder of fact, the trial court's valuation of
the Iowa farm property, reliant on the testimony of one expert over the other, was within
the court's discretion. Having determined the facts important to valuing the farmland for
the purposes of dividing its value between the parties, the trial court fairly determined its
value. We interpret the trial court's judgment to give it full effect such that Randy's Social
Security assets may be used to offset the distribution from Cynthia's STRS pension. But the
trial court's simultaneous consideration of a retirement account in Randy's name as both
separate property and marital property must be reversed and remanded to the trial court
for correction.
{¶ 38} We therefore sustain Randy's second assignment of error, sustain in part and
overrule in part his third assignment of error, overrule his first and fourth assignments of
error, and remand the judgment for the Franklin County Court of Common Pleas, Division
of Domestic Relation, for further consideration. On remand, we instruct the trial court to
modify its decree to treat Randy's Oppenheimer Funds as a separate asset and to enforce
its decree on retirement accounts with the understanding that Randy's Social Security
No. 17AP-215 16
account is not to be divided and should only be considered as may be relevant for purposes
of dividing Cynthia's STRS.
Judgment reversed in part,
affirmed in part, and remanded.
DORRIAN and HORTON, JJ., concur. | 01-03-2023 | 11-28-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/128380/ | 538 U.S. 937
BROWNv.GERLINSKI, WARDEN.
No. 02-9020.
Supreme Court of United States.
March 24, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT.
2
C. A. 3d Cir. Certiorari denied. Reported below: 43 Fed. Appx. 521. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1872977/ | 396 F.Supp. 1180 (1973)
Joseph A. D'AMBRA and Constance C. D'Ambra
v.
UNITED STATES of America.
Civ. A. No. 4619.
United States District Court, D. Rhode Island.
August 8, 1973.
As Amended August 9, 1973.
Girard R. Visconti, Providence, R.I., for plaintiffs.
Lincoln C. Almond, U.S. Atty., Everett C. Sammartino, Asst. U.S. Atty., Providence, R.I., for defendant.
OPINION
PETTINE, Chief Judge.
This is an action brought under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) by Constance C. D'Ambra and her husband Joseph A. D'Ambra for physical and emotional injuries sustained by the plaintiff wife and losses incurred by the plaintiff husband as a *1181 result of the trauma suffered by Constance D'Ambra from witnessing her four year old son, Gregory A. D'Ambra, being struck and killed by a United States mail truck.
The defendant moved to dismiss this case pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a cause of action. By stipulation of the parties, the motion to dismiss was decided on the basis of the transcript and the findings of fact made by this Court in Joseph A. D'Ambra v. United States of America, C.A. No. 4545. (March 17, 1972). In that case the Court found, inter alia, that the mail truck driver was negligent and that both Constance D'Ambra and her son were free from contributory negligence, and accordingly imposed liability for wrongful death on the defendant. This finding of liability was affirmed by the First Circuit Court of Appeals in D'Ambra v. United States, No. 72-1205 (October 24, 1972).[1]
On the basis of these facts and the eyewitness status of the mother to the accident, this Court held that a cause of action for the negligent infliction of psychic injury exists under Rhode Island law. D'Ambra v. United States, 354 F. Supp. 810 (D.C.R.I.1972).
During the course of the pre-trial proceedings of this case, the issue arose as to the collateral estoppel effect of the findings of fact on the negligence of the mail truck driver made in Joseph A. D'Ambra v. United States of America, supra. Whether there is estoppel in the case at bar depends on whether the principle of mutuality of estoppel applies. Under this doctrine, Constance D'Ambra would not be able to assert offensively the findings made against the government in the wrongful death action since the government would not have been able to use such findings, if in their favor, against her as she was not a party, nor in privity to a party, in the prior adjudication.
Rhode Island law governs the issue of collateral estoppel. See Filice v. United States, 271 F.2d 782, 783 (9th Cir. 1959). There is, however, no Rhode Island precedent on this issue. In such circumstances, this Court is duty bound to predict the law of Rhode Island.
The trend in both federal and state courts is away from the rigid requirements of mutuality of estoppel. Blonder-Tongue v. University Foundation, 402 U.S. 313, 326, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1970). The landmark case rejecting this doctrine, Bernhardt v. Bank of America, 19 Cal.2d 807, 122 P.2d 892, 895 (1942) established in its stead the following criteria for the evaluation of the applicability of res judicata:
". . . Was the issue decided in the prior adjudication identical with the one presented in the action in question? Was there a final judgment on the merits? Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication?"
The test of the fairness of rules of res judicata, as has been stated so well by Judge Hastie is
". . . the achievement of substantial justice rather than symmetry . . ." Bruszewski v. United States, 181 F.2d 419, 421 (3rd Cir. 1950) cert. den. 340 U.S. 865, 71 S.Ct. 87, 95 L.Ed. 632 (1950); cited in Blonder-Tongue v. University Foundation, supra at 305, 91 S.Ct. 1434.
Applying the Bernhardt rules to this case, the defendant would be estopped from the relitigation of the issues of negligence. However, the defendant does not have any cause to complain since he has already enjoyed full opportunity *1182 to litigate these issues. Furthermore, I am persuaded that the adoption of the Bernhardt rules will minimize litigation and economize judicial time. See 1 B J. Moore, Federal Practice paragraph 0.412[1] p. 1809. I therefore find that the courts of Rhode Island would adopt the principles set forth in Bernhardt, if confronted with this question and that the defendant is collaterally estopped from the relitigation of the findings on negligence.
Moreover, and perhaps independently dispositive of the issue of collateral estoppel, is the fact that the defendant did not object to the application of collateral estoppel, although specifically invited to do so by this Court. See Pre-trial Order of December 26, 1972.
Given the pre-trial rule on collateral estoppel, id., the scope of this trial was limited to the issues of causation and damages.
FINDINGS OF FACT
On the basis of the testimony given by Constance C. D'Ambra,[2] her husband, Joseph D'Ambra and the psychiatrist who treated her, Doctor Eufrocino N. Beltran, I find the following descriptions of Constance D'Ambra to be true. Prior to June 2, 1970 (the date of the accident with Gregory) Constance D'Ambra was in good health, had a good relationship with her husband and children, slept well, had the reputation of being a calm person, was fairly cheerful and happy, and never consulted a psychiatrist or took a tranquilizer. Since that date and up to the present time she has suffered a loss of appetite, has trouble sleeping, and has nightmares of the accident and of her son covered with blood. Occasionally she pounds on the table in the kitchen, and according to her husband, she sometimes pounds on the bed while she sleeps. She re-experiences the sensation of warm blood running down her body, as when she picked up her son at the scene of the accident. When it is inclement weather, she tends to wonder whether her son is cold and wet. Because she is reminded of Gregory when she holds her recently born twins, she has trouble holding them. And she is afraid that an accident similar to the one that happened to Gregory will befall her other children.
Constance D'Ambra has had limited psychiatric treatment. She saw Doctor Beltran on five occasions: July 24, 1970; July 31, 1970; August 17, 1970; September 14, 1970; and March 9, 1973. She rejected treatment after the visit of September 14 because she felt that no one could help her.
Doctor Beltran diagnosed the condition of Constance D'Ambra as psychoneurosis, depression type. He characterized her withdrawal from treatment in 1970 as a manifestation of her psychoneurotic state.
According to Doctor Beltran, there had been progressive improvement in the mental condition of Constance D'Ambra during the 1970 visits. At that time his prognosis of treatment time was two to four months. At the 1973 visit, Doctor Beltran testified that Constance D'Ambra was more depressed than she had been at her first visit with him in 1970. He now estimates that she required two to three years of weekly one hour sessions with a psychiatrist. The fee for such medical services is forty dollars per hour.
Doctor Beltran further testified that on her first visit with him Constance D'Ambra related that in spite of her emotional state, she was able to carry out her household routine, although not without certain difficulty. There is no evidence that the psychoneurosis has since interfered with the fulfillment of Constance D'Ambra's roles of housekeeper and mother, except for the aforementioned uncomfortableness in holding the twins.
*1183 Two doctors testified as to the cause of the plaintiff's psychoneurosis. Doctor Beltran gave his opinion based on his treatment of Constance D'Ambra. Doctor Thomas Greason gave his opinion in response to a multi-portioned hypothetical question. Both doctors testified that viewing the accident would be sufficient to cause the psychoneurosis. However, they both additionally testified that if she had not seen the accident, but instead heard of the accident, a similar psychoneurosis might have developed. Doctor Greason testified that witnessing the accident probably increased the trauma. The opinion of Dr. Beltran was that witnessing the accident brought about a more intense and prolonged mental effect than would have otherwise resulted. Neither doctor was able to define the difference in degree of severity of depression between witnessing such an accident and only hearing about it. According to Doctor Greason, there is no method of the computerization of such a difference. Doctor Beltran expressed the view, and I so find, that the witnessing of the accident plus the actual loss of the child by death produced the psychoneurosis.
DISCUSSION OF LAW
Simone v. The Rhode Island Company, 28 R.I. 186, 66 A. 202 (1907) established that there can be recovery for the fright experienced from the defendant's negligence, when that fright is followed by physical ills, or gives rise to nervous disturbances which in turn lead to physical ills. This rule allowing recovery only when there are concomitant or subsequent physical manifestations of the psychic trauma was reaffirmed in Bedard v. Notre Dame Hospital, 89 R.I. 195 151 A.2d 690 (1959).
The threshold issue thus is whether a psychoneurosis is a category of "physical ills." There is no guidance on this issue from the Rhode Island Courts. In Simone v. The Rhode Island Company, supra at 188, 66 A. 202, the ills alleged were of a type indisputably physical, including vomiting, insomnia, headache, pains in the left side, left leg, and back, weakness, and fainting attacks. In Bedard v. Notre Dame Hospital, supra, there was involved a claim for damages for "unadulterated" mental anguish caused by the retention of the plaintiff's son in a hospital, until the hospital bill was paid. The Court held that under the rule of Simone, such mental anguish could not be the basis of an award for damages.
It is thus necessary for this Court to ascertain the law of Rhode Island on the status of psychoneurosis. On the process of prediction, it has been written:
"At its best, it is the wise and experienced use of many sources in combination . . . it is . . . logic, both inductive and deductive." Corbin, the Laws of the several States, 50 Yale L.J. 762, 775-6 (1941), quoted in H. Hart and H. Wechsler, The Federal Courts and the Federal System, 630 (1953).
It is elementary that the scope of a rule can only be determined in the light of its purpose. One apparent intent of the Simone doctrine is to ferret out those claims of injury caused by fright which are most amendable to fraud. It therefore is the objective manifestation of the injury which is crucial, not whether the injury is, in conventional terms, physical or mental.
The First Circuit has reached a similar conclusion. In Petition of United States, 418 F.2d 264 (1st Cir. 1969), the Court stated:
"The term `physical' is not used in its ordinary sense for purposes of applying the `physical consequences' rule. Rather, the word is used to indicate that the condition or illness for which recovery is sought must be one susceptible of objective determination. Hence, a definite nervous disorder is a `physical injury' sufficient to support an action for damages in negligence. Espinosa v. Beverly Hospital, 114 Cal.App.2d 232, 249 P.2d 843 (1953); Bowman v. Williams [164 Md. 397, 165 A. 182 (1933)]; Savard v. Cody *1184 Chevrolet, Inc. [126 Vt. 405, 234 A.2d 656 (1967)]."
Buttressing this interpretation of the physical consequences rule is the fact that the Simone Court quoted approvingly the following statement from Sloane v. Southern Cal. Ry. Co., 111 Cal. 668, 680, 44 P. 320:
"The real question presented by the objections and exception of the appellant is, whether the subsequent nervous disturbance of the plaintiff was a suffering of the body or of the mind. The interdependence of the mind and body is in many respects so close that it is impossible to distinguish their respective influence upon each other. It must be conceded that a nervous shock or paroxysm, or a disturbance of the nervous system, is distinct from mental anguish, and falls within the physiological, rather than the psychological, branch of the human organism. It is a matter of general knowledge that an attack of sudden fright or an exposure to imminent peril has produced in individuals a complete change in their nervous system, and rendered one who was physically strong and vigorous weak and timid. Such a result must be regarded as an injury to the body rather than to the mind, even though the mind be at the same time injuriously affected." Simone v. The Rhode Island Co., supra at 200, 66 A. at 208. (emphasis added).
A psychoneurosis is defined by a certain complex of symptoms. It is a "definite nervous disorder" for which recovery can be had under the "physical consequences rule." In accord, Petition of United States, supra. I have found that the psychoneurosis of Constance D'Ambra was precipitated both by the trauma of witnessing the accident and by the actual death of the child. However, the cause of action at bar is solely for the fright and mental distress of a mother caused by seeing her child in peril and grievously wounded or killed.[3] The question arises, therefore, can the emotional injury of Constance D'Ambra be apportioned between the trauma of viewing the accident and the death of the child? On the state of the record, I can find no rational basis for such apportionment. Although both expert witnesses testified that witnessing such an accident is a severe trauma which probably intensified any psychoneurosis attributable to the death of the son, neither could estimate the degree of exacerbation. The legal issue is whether the plaintiff must be denied recovery in view of the impracticality of allocation of injury. For reasons stated, infra, I find recovery should not be denied this plaintiff.
There is no controlling precedent at hand. However, decisional law as to the liability of joint tortfeasors and the comments of legal academicians offer a base for analogies from which the issue can be resolved. When the harm caused a person by several tortfeasors is theoretically separable, the prevailing rule has been that each tortfeasor is liable only for that portion for which he is responsible, 2 Harper and James, The Law of Torts § 20.3 at 1125, and the plaintiff has the burden of proof as to the extent of each defendant's contribution. In the absence of such proof, the plaintiff, of course, foregoes all recovery.
Legal scholars have, nevertheless, long advocated shifting the burden of proof to the defendant. See Wigmore, Joint Tortfeasors and Severance of Damages, 17 Ill.L.Rev. 458 (1923); Carpenter, Workable Rules for Determining Proximate Cause, 20 Calif.L.Rev. 396, 406 (1932). Professor Wigmore pointed out that the rationale of the imposition of joint and several liability when there is a concert of action among tortfeasors "the unfairness of putting on the injured party the impossible burden of *1185 proving the specific shares of harm done by each and the ingenuity of letting all . . . go scot free because the respective shares cannot be ascertained" is equally applicable whenever several tortfeasors cause a harm which is not "obviously assignable in parts to the respective wrongdoers." Wigmore, supra 458, 459.
The Restatement of Torts, Second has adopted this rule that the burden of proof on apportionment of harm falls on the tortfeasor in § 433B(2) which provides:
"(2) Where the tortious conduct of two or more actors has combined to bring about harm to the plaintiff, and one or more of the actors seeks to limit his liability on the ground that the harm is capable of apportionment among them, the burden of proof as to the apportionment is upon each such actor."
The justification given in the Reporter's Comment for this provision is essentially the same as that given by Professor Wigmore:
"The reason for the exceptional rule placing the burden of proof as to apportionment is the injustice of allowing a proved wrongdoer who has in fact caused harm to the plaintiff to escape liability merely because the harm which he has inflicted has combined with similar harm inflicted by other wrongdoers, and the nature of the harm itself has made it necessary that evidence be produced before it can be apportioned."
Restat.Torts 2d. Comment at 444.
In spite of the opinion of eminent authorities and the position of the Restatement, courts have shifted the burden of proof on apportionment in only two limited areas. Several courts have adopted the rule of the Restatement in the case of injury caused by the chain collision of automobile. Maddux v. Donaldson, 362 Mich. 425, 108 N.W.2d 33 (1961); Rund v. Grimm, 252 Iowa 1266, 110 N.W.2d 321 (1961); Holtz v. Holder, 101 Ariz. 247, 418 P.2d 584 (Ariz.1966); Matthews v. Mills, 288 Minn. 16, 178 N.W.2d 841 (1970); Fugere v. Pierce, 5 Wash. App. 592, 490 P.2d 132 (1971). The rationale of these cases is based on the unfairness of the imposition of the burden of proof on the innocent victim as opposed to the defendant.
Also, where the negligent infliction of injury aggravates a pre-existing condition or disease, and no apportionment is possible, it has been held that the defendant is liable for the entire damage, i. e. Newbury v. Vogel, 151 Colo. 520, 379 P.2d 811 (1962); (pre-existing arthritic condition); Kawamoto v. Yasutoke, 49 Haw. 42, 410 P.2d 976 (1966) (possible prior back problems and an arthritic condition; Blaine v. Byers, 91 Idaho, 665, 429 P.2d 397 (1967) (pre-existing arthritic condition); Matsumoto v. Kabu, 52 Haw. 629, 484 P.2d 147 (1971) (pre-existing back pain); Wise v. Carter, 119 So.2d 40 (Fla.App.1960) (prior injury). The justifications for this principle are, however, different from that used in the multi-collision cases. It is sometimes said that a tortfeasor takes his victim as he finds him. See Blaine v. Byers, supra. Another rationale is that when a prior condition does not cause pain or disability, the injury caused by the tortfeasor is the proximate cause of the pain or disability. Comment Apportionment of Damages, 49 Denver L.J. 115, 116 (1972) and cases cited therein. See also Newbury v. Vogel, supra.
There is no law in Rhode Island on the rule for burden of proof on apportionment where the injury is for practical purposes indivisible. Nor is there Rhode Island case law on the rule to be applied when a tortfeasor aggravates a pre-existing condition or disease of his victim. Again, it is necessary to predict the law of Rhode Island.
The first consideration is whether the fact that the case at bar does not involve injury caused by several tortfeasors who have the possibility of haggling liability among themselves should preclude the imposition of the burden of proof on the *1186 defendant. I cannot find that it should. Where an injury which is indivisible is caused by the negligence of the defendant concurring with an innocent cause, as a force of nature, the defendant is held responsible for the entire injury. Haverly v. State Line & S.R. Co., 135 Pa. 50, 19 A. 1013 (1890) (fire caused by negligence and wind); Jackson v. Wisconsin Tel. Co., 88 Wis. 243, 60 N.W. 430 (1894) (negligently left wire plus lightning); Long v. Crystal Refrig. Co., 134 Neb. 44, 277 N.W. 830 (1938) (defective building plus wind), and where an injury is theoretically divisible and one cause is innocent, the circumstance most analogous to the instant case, the aggravation of pre-existing injury cases constitute authority for holding the tortfeasor totally liable. Although the logic of these later cases cannot be extrapolated to the instant case, they do illustrate the proposition that each type of case must be evaluated to determine the fairness of shifting the burden of proof to the defendant.
The rationale of Professor Wigmore and the Restatement 2d for the allocation of the burden of proof to the defendant is applicable here. However, the unique circumstances of the case at bar form even more compelling reason for the adoption of the rule in this class of cases. The defendant is responsible for both causes of the injury. He is saved from liability for psychic injury for loss of a child only because of policy reasons. The burden of proof of allocation of injury should clearly be on him and not the innocent plaintiff.
Since there was no basis for allocation presented in the record, I hold the defendant liable for the entire psychoneurosis.[4]
Having ruled that the plaintiff is entitled to a verdict, I must award a sum which will compensate her for the injury she has suffered. Past medical expenses amount to only eighty-four dollars and there is no loss of earnings to be considered. Therefore, the prime determination to be made is the parameters of recovery for mental injury.
It is well established law that in a single negligence case any award of damages must not be punitive nor can it be speculative but rather it must be based on the evidence so as to reasonably compensate the injured party. The difficulty lies in computing a just sum.
"The law measures the compensation for suffering of this kind, as of course, in terms of money. While the device of the law may be inadequate, it has been said that to forbid the consideration of the elements of mental suffering, because the law scales are not perhaps sufficiently delicate for their measurement, is equally to condemn the use of the scales in all other directions and in the very cases and for the very purposes now admittedly sanctioned by the law." 22 Am. Jur.2d sec. 198, n. 21, citing Merrill v. Los Angeles Gas & E. Co., 158 Cal. 499, 111 P. 534.
There are no guidelines in precedent offering a basis for such calculations. However, as I have noted, this impreciseness in the law does not bar recovery but rather places the entire burden on the court or jury, as the case may be, whose calculations must stem from maturity of judgment in analyzing the factual situation before it and thus give some form to an amorphus legal conundrum.
*1187 My findings of fact detail the psychiatric manifestations of the plaintiff together with the doctor's opinion as to necessary future treatments. Considering this data it is my considered opinion the plaintiff has not established a permanent disability within that degree of certainty warranting an award of damages on such a basis. Dr. Beltran, as I have found, estimates she requires two to three years of weekly one hour psychiatric sessions at an estimated cost of forty ($40) dollars per hour. Conceding the patient's mind could still be triggered into a depression at some time subsequent to the conclusion of these treatments, the probability and possibilities of her mental susceptibility and factual setting coalescing at the right time are in this case too conjectural and speculative for consideration by the Court.
I find a fair award is and do hereby enter judgment in the amount of $10,000 to plaintiff Constance C. D'Ambra and in the amount of $84.00 for actual expended medical expenses to plaintiff Joseph A. D'Ambra.
NOTES
[1] D'Ambra v. United States, No. 72-1205 (October 24, 1972) also requested argument on whether the Rhode Island Wrongful Death Act is punitive within the meaning of the Federal Tort Claims Act. In a later opinion, the First Circuit Court of Appeals held that the Rhode Island Wrongful Death Act is punitive and established a judicial formula for the computation of damages for wrongful death. D'Ambra v. United States of America, No. 72-1205 (June 7, 1973).
[2] Part of the testimony of Constance D'Ambra was orally presented by Constance D'Ambra and part of the testimony was entered orally by counsel for the plaintiff per stipulation of the parties.
[3] Emotional injury from bereavement resulting from negligence is not the basis of a cause of action. Such a cause of action is precluded by the likelihood of unlimited liability and disproportionate liability in relation to culpability.
[4] There is a second possible approach to the problem. Where two causes are substantial factors in producing a single indivisible result, each is charged with all of it. Prosser, The Law of Torts 250 (3d ed.). The classic case is that of two automobiles colliding and injuring a third person. Id.
It may be conceptually possible to characterize a psychoneurosis as a single indivisible result. However, this rule of indivisible injury was developed in relation to physical injury. With emotional injury, there is feedback from the person effected which can serve as a basis for the determination by a psychiatrist of the cause(s) of the psychic hurt. The court therefore believes that a mental disorder should be regarded as theoretically divisible. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1873028/ | 396 F.Supp. 632 (1975)
STATE OF ILLINOIS ex rel. William J. SCOTT, Attorney General, and People of the State of Illinois, ex rel. William J. Scott, Attorney General, Plaintiffs,
v.
Alexander P. BUTTERFIELD, Administrator, Federal Aviation Administration, et al., Defendants.
No. 74 C 2410.
United States District Court, N. D. Illinois, E. D.
June 16, 1975.
*633 *634 William J. Scott, Atty. Gen. of Ill., Chicago, Ill., for plaintiff.
James Michael Keane, Chicago, Ill., for Village of Schiller Park, intervenor.
Arnold Kanter, U. S. Atty., Chicago, Ill., for defendants.
MEMORANDUM OPINION
Motions to Intervene and Motion to Dismiss
MAROVITZ, District Judge.
I.
Background
Since the passage of the National Environmental Policy Act[1] on January 1, 1970, there has been a plethora of litigation but a dearth of consensus as to the resolution of several issues regarding the construction of said Act. Under the Act, all agencies of the Federal Government are to include in their consideration and development of major federal actions having significant effect on the environment a "detailed statement by the responsible official" on five aspects of the proposed action. They are: "(i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of longterm productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented." 42 U.S.C. § 4332 (2)(C).
This detailed statement is to be issued only after the "responsible federal official" has obtained input from every federal agency which has "jurisdiction by law or special expertise with respect to any environmental impact involved." Id. In addition, comments and views of appropriate state and local agencies are to be solicited and appended to the statement. Upon its completion, this report is to be "made available to the President, the Council on Environmental Quality and to the public . . ., and [it is to] accompany the proposal through the existing agency review processes . . . ." Id. Finally, the Act provides that these provisions shall be applied by all Federal agencies to the "fullest extent possible." 42 U.S.C. § 4332 (1).
Plaintiffs, the State of Illinois and the People of the State of Illinois, seek declaratory and injunctive relief with regard to certain actions of officers and employees of the Federal Aviation Administration ("F.A.A.") and the Civil Aeronautics Board ("C.A.B.") which have allegedly resulted in the uncontrolled increase in aircraft operations, noise, and air pollutants at O'Hare International Airport in violation of the National Environmental Policy Act ("N.E.P.A.") and other provisions of the law.
Plaintiffs claim that excessive aircraft noise interferes with human speech, sleep and other normal and reasonable *635 activities of the residents and inhabitants of the area adjacent to and surrounding O'Hare Airport. Plaintiffs further allege that said excessive noise deprives plaintiffs of the full, normal and reasonable enjoyment, use and value of their properties.
Plaintiffs make similar claims as to the degradation of air quality caused by excessively large quantities of pollutants both from aircraft emissions and from other mobile air-polluting sources to wit: that the resulting degradation affects the health, safety and welfare of citizens of the State of Illinois who reside, work, visit, or otherwise frequent the area adjacent to the Airport, and that the resulting degradation deprives the State of Illinois and the citizens of the State of the full or reasonable use of property owned by them which is located in the areas adjacent to and surrounding the Airport.
The Complaint
The action is brought in six counts, four of which concern the National Environmental Policy Act. Count I charges that the F.A.A. defendants have failed to prepare an impact statement for certain individual actions as required by the N.E.P.A. The primary allegations read:
Subsequent to January 1, 1970, Defendants Butterfield and Cyrocki, or their predecessors in office, have undertaken the following actions:
a) Pursued a policy of unlimited growth in air traffic at the Airport, resulting in a substantial increase in the daily number of aircraft operations at the Airport;
b) Undertaken and completed the installation of various flight control, navigational and other equipment which has increased the capacity of the Airport to accommodate additional aircraft;
c) Authorized and directed the use by aircraft of a newly constructed runway and taxiway;
d) Established, altered and otherwise changed or controlled the standard flight paths and patterns of aircraft arriving at and departing from the Airport;
e) Failed to enact regulations which would reduce or control the emission of noise and other pollutants from aircraft arriving at, departing from, or moving about the Airport; and,
f) Undertaken or completed various other actions which have, or may have, adverse environmental impacts upon the areas adjacent to and surrounding the Airport. Complaint, par. 32
Count II claims that these actions, considered collectively, also constitute a "major federal action significantly affecting the quality of the human environment" for which defendants Butterfield or Cyrocki, or their predecessors in office, were required to prepare a detailed environmental impact statement under the provisions of 42 U.S.C. § 4332 (2)(C).[2]
Count III claims that the F.A.A. defendants have failed to consider environmental factors and appropriate alternatives to their actions as required by the N.E.P.A., and particularly Sections 102(2)(A), 102(2)(B), and 102(2)(D) therein.[3]
*636 Count IV claims that the F.A.A. defendants have failed to comply with the notice and publication requirements of the Administrative Procedure Act in their promulgation of flight rules and policies.
Count V alleges that the C.A.B. defendants have failed to prepare an impact statement for certain of their actions as required by the N.E.P.A. Plaintiffs aver that subsequent to January 1, 1970, the C.A.B. defendants, or their predecessors in office, have, as a matter of policy, established O'Hare as a central airport for national and international commerce, and that in furtherance thereof these defendants have authorized numerous commercial air carriers to engage in air transportation at the Airport, resulting in a significant increase in the number of aircraft utilizing the Airport and a significant increase in the amount of noise and air pollutants emitted into the outdoor atmosphere of the area adjacent to and surrounding the Airport.
Finally, Count VI claims that all the defendants have unlawfully performed actions which have created a nuisance in the State of Illinois.
Though the relief sought varies from count to count, the overall gist of plaintiffs' prayer seeks a declaratory judgment that defendants' actions which result in an increase in the number of aircraft arriving at and departing from O'Hare are unlawful due to the absence of an environmental impact statement and due to a failure to abide by the Administrative Procedure Act, and further seeks an injunction in the increase of aircraft operations pending compliance with § 4332(2)(C) of the National Environmental Policy Act of 1969.
II.
Motions to Intervene
Four local governments and one environmental organization have applied to intervene as plaintiffs in this action. Fed.Rules Civ.Proc. Rule 24, 28 U.S.C. They are the City of Park Ridge, the City of Des Plaines, the Village of Niles, the Village of Schiller Park, and the National Organization to Insure a Sound-controlled Environment. Rule 24 (b), the content of which deals with permissive intervention, states, "Upon timely application anyone may be permitted to intervene in an action: . . . (2) when an applicant's claim or defense and the main action have a question of law or fact in common . . . In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties." Each applicant-intervenor has filed a complaint substantially identical to the complaint of the State of Illinois, and the intervenors are amenable to the submission of joint pleadings and briefs, reserving the right to file a supplemental brief to that filed by the State of Illinois and the People of this State. Each intervenor also reserves the right to represent interests of its citizens that may be different from the interests of the State of Illinois should this cause reach trial. The applications to intervene pursuant to Rule 24(b) are granted. We do not decide whether these parties may intervene as of right under Rule 24(a).
III.
Defendants move to dismiss this suit pursuant to Fed.Rules Civ.Proc. Rules *637 12(b)(1), 12(b)(6), and 12(b)(7), 28 U.S.C.[4]
Jurisdiction over Subject Matter
Jurisdiction herein is invoked pursuant to 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 1332 (diversity), 28 U.S.C. § 1361 (mandamus), 28 U.S.C. § 1337 (commerce), and 5 U.S.C. §§ 701-706 (Administrative Procedure Act). Defendants deny this court's jurisdiction under the above-enumerated statutes, and further argue that jurisdiction is barred by the doctrines of sovereign immunity and failure to exhaust remedies.[5]
In Pennsylvania Environmental Council, Inc. v. Bartlett, 315 F.Supp. 238 (M.D.Pa.1970), aff'd, 454 F.2d 613 (3d Cir. 1971), an action was brought to enjoin a planned relocation of a highway and to require upgrading and repairing of an existing roadway. The claim was grounded, in part, on plaintiffs' contention that defendants were in violation of the N.E.P.A. In a footnote the district court said, ". . . [J]urisdiction clearly exists under the Administrative Procedure Act and the Federal Question Statute." 315 F.Supp. at 240 n. 1. Unfortunately, the issue is not quite that clear. As the court notes in Charlton v. United States, 412 F.2d 390, 396 (3d Cir. 1969) (concurring opinion):
There continues to be a dispute in the courts and in academic circles as to whether the Administrative Procedure Act is jurisdictional, i. e., whether the Act itself is an affirmative grant of jurisdiction to the district courts to review agency action according to its terms absent any other basis for federal jurisdiction. See, e. g., Toilet Goods Ass'n., Inc. v. Gardner, 360 F. 2d 677, 679, n. 1 (2d Cir. 1966), aff'd, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed. 2d 697 (1967); Cappadora v. Celebrezze, 356 F.2d 1 (2d Cir. 1966); Ove Gustavsson Contracting Co. v. Floete, 278 F.2d 912 (2d Cir.), cert. denied, 364 U.S. 894, 81 S.Ct. 225, 5 L.Ed.2d 188 (1960); Powelton Civic Home Owners Ass'n. v. HUD, 284 F. Supp. 809, 819-820 (E.D.Pa.1968). See also Jaffe and Nathanson, Administrative LawCases and Materials 288 (3d ed. 1968); Jaffe, Judicial Control of Administrative Action 528 (1965); 3 Davis, Administrative Law Treatise 291 (1958); Byse and Fiocca, Section 1361 of the Mandamus and Venue Act of 1962 and "Nonstatutory" Judicial Review of Federal Administrative Action, 81 Harv.L.Rev. 308, 326-331 (1967).
We are inclined to agree with Charlton, however, that:
Although the Supreme Court has not expressly decided the issue, decisions of the Court . . . offer support to the position that one "suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, * * *" 5 U.S.C. § 702, may seek review of such action under the Administrative Procedure Act. See, e. g., Abbott Laboratories v. Gardner, 387 U.S. 136, 140-141, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); Rusk v. Cort, 369 U.S. 367, 371-372. 82 S.Ct. 787, 7 L.Ed.2d 809 (1962). 412 F.2d at 396.
Similarly, there is a dispute whether the N.E.P.A. provides substantive rights which imply a remedy pursuant to § 1331 jurisdiction. Several cases have recognized subject matter jurisdiction under this statute. See, e. g., Sierra Club v. Froehlke, 359 F.Supp. 1289 (S.D.Tex.1973); Harrisburg Coalition Against Ruining the Environment v. Volpe, 330 F.Supp. 918, 921 (M.D.Pa. 1971); Ely v. Velde, 321 F.Supp. 1088, *638 1094 (E.D.Va.1971); Pennsylvania Environmental Council, Inc. v. Bartlett, supra.
In Sierra Club v. Froehlke, 486 F.2d 946 (7th Cir. 1973), the court examined whether an environmental impact statement prepared by the Corps of Engineers concerning a flood control dam project on the Kickapoo River, Wisconsin, complied with the mandates of the N.E. P.A. The court reaffirmed its view that, "Pro forma compliance with the substantive guidelines of [Section 4331] simply will not suffice. [Section 4332] of NEPA provides that its procedures be implemented and carried out `to the fullest extent possible.' Scherr v. Volpe, 466 F.2d 1027, 1031 (7th Cir. 1972)." 486 F.2d at 953. The court continued, "In light of these statements, we feel compelled to hold that an agency's decision should be subjected to a review on the merits to determine if it is in accord with the substantive requirements of NEPA." If, as the Seventh Circuit indicates, this court has jurisdiction to review an environmental impact statement on the merits, a fortiori the court must have jurisdiction to determine whether said statement is required at all. To hold otherwise is to allow an agency to circumvent review merely by failing to file a statement. See also, Hanly v. Kleindienst, 471 F.2d 823 (2d Cir. 1972) (Hanly II) (court review of agency's decision not to file an environmental impact statement).
In light of our determination that our jurisdiction is properly invoked pursuant to 28 U.S.C. § 1331 and the Administrative Procedure Act, we decline to rule on the other alleged bases of jurisdiction.
Further, we do not consider this suit barred by the doctrine of sovereign immunity. National Helium Corp. v. Morton, 486 F.2d 995 (10th Cir. 1973); Environmental Defense Fund, Inc. v. Corps of Engineers of U.S. Army, 325 F. Supp. 749, 763 (E.D.Ark.1971); Crowther v. Seaborg, 312 F.Supp. 1205, 1219 (D. Colo.1970). In National Helium the court ruled that divers helium purchase contracts entered into pursuant to the Helium Act, 50 U.S.C. § 167 et seq., could not be terminated by the Secretary of the Interior without the filing by the Interior Department of an environmental impact statement in accordance with the dictates of the N.E.P.A. To the defense of sovereign immunity the court stated, 486 F.2d at 1000:
We have fully considered the Supreme Court cases which prohibit injunctive relief against governmental officers on account of their upholding the rights of the government arising under a contract. Such a suit is distinguished by the Supreme Court from actions seeking compensations for an alleged wrong and are regarded as actions against the sovereign to which there has not been consent. . . .
* * * * * *
We view the action seeking to require the Department to file an impact statement to stand on a different footing in relationship to the sovereign immunity doctrine and the cited cases because the action merely seeks to obtain compliance with the National Environmental Policy Act of 1969 and is not for the purpose of asserting and enforcing a private right. . . . (citations and footnotes omitted).
Thus, we do not find this doctrine availing as a bar to plaintiffs' maintenance of this suit.
Nor do we find that we should dismiss for plaintiffs' failure to exhaust administrative remedies, inasmuch as we discern no formal steps as yet untaken by plaintiffs which will provide them an opportunity to urge defendants to comply fully with the N.E.P.A., and the result of which would produce an agency order subject to judicial review. Cf., Jewel Companies, Inc. v. F.T.C., 432 F.2d 1155, 1159 (7th Cir. 1970).
Defendants suggest that plaintiffs have bypassed their administrative remedy provided in 49 U.S.C. § 1482(a). That section provides, in part:
Any person may file with the Administrator or the Board, as to matters *639 within their respective jurisdictions, a complaint in writing with respect to anything done or omitted to be done by any person in contravention of any provisions of this chapter, or of any requirement established pursuant thereto.
In International Navigator's Council of America v. Shaffer, 144 U.S.App.D.C. 29, 444 F.2d 904 (1971), this section was held unavailable as a means to compel the Administrator of the F.A.A. to perform his statutory duties under the Federal Aviation Act. "The Section was patently designed to provide a tool for the investigation and adjudication by the Administrator of claimed violations of the Federal Aviation Act by those subject to its terms rather than to serve as a vehicle for challenging official action or inaction." 444 F.2d at 908. ". . . [O]ur research . . . has failed to uncover any case in which the statute has been utilized to complain of the Administrator for failure adequately to perform his asserted statutory responsibilities." Id.
We have also reviewed the F.A.A. and C.A.B. procedures for implementation of the National Environmental Policy Act of 1969. 39 Fed.Reg. 35231 (1974); 40 C.F.R. § 399.110. While these procedures have provisions for citizen involvement in preparation of the environmental impact statement, the procedures are deficient in providing for citizen views as to whether said statement is required in the first instance.
Thus we conclude that plaintiffs have no additional avenues of relief to pursue, and the action does not fall for failure to exhaust administrative remedies.
Complaint States a Claim Upon Which Relief Can Be Granted
Defendants assert that the allegations in paragraph 32 of the complaint[6] do not refer to specific, concrete and affirmative actions which this court is to review; rather, defendants' alleged actions are said to concern F.A.A. policy, operations, and "various other actions which have, or may have, adverse environmental impacts", and which defendants consider too abstract to qualify as "major federal actions" sufficient to state a claim. Clearly, though, this is incorrect. The Council on Environmental Quality, in its guidelines for preparation of environmental impact statements, said as to types of actions covered by the Act:
§ 1500.5
(a) "Actions" include but are not limited to:
(1) Recommendations or favorable reports relating to legislation including requests for appropriations . . . .
(2) New and continuing projects and program activities: directly undertaken by Federal agencies; . . . or involving a Federal lease, permit license certificate or other entitlement for use . . .
(3) The making, modification, or establishment of regulations, rules, procedures, and policy. 40 C.F.R. § 1500.5
Since the actions described in paragraph 32 of the complaint are alleged to be those of administrators of the F.A.A., those actions are necessarily "Federal."
In Scientists' Institute for Public Information, Inc. v. Atomic Energy Commission, 156 U.S.App.D.C. 395, 481 F.2d 1079 (1973), the court noted:
The legislative history of the Act indicates that the term "actions" refers not only to construction of particular facilities, but includes "project proposals, proposals for new legislation, regulations, policy statements, or expansion or revision of ongoing programs * * *." Thus there is
"Federal action" within the meaning of the statute not only when an agency proposes to build a facility itself, but also whenever an agency makes a decision which permits action by other parties which will affect the quality of the environment. NEPA's impact *640 statement procedure has been held to apply where a federal agency approves a lease of land to private parties, grants licenses and permits to private parties, or approves and funds state highway projects. In each of these instances the federal agency took action affecting the environment in the sense that the agency made a decision which permitted some other party private or governmentalto take action affecting the environment. (footnotes omitted). 481 F.2d at 1088-1089.
Further, we do not consider the suit vulnerable to attack simply because O'Hare International reached its tremendous size prior to the enactment of the N.E.P.A. The requested relief is directed towards a meaningful environmental evaluation of a further increase in aircraft traffic and operations. The problem of retroactive application is addressed by Guideline 11 of the Council on Environmental Quality,[7] which provides:
To the maximum extent practicable the section 102(2)(C) procedure should be applied to further major Federal actions having a significant effect on the environment even though initiated prior to enactment of the Act on January 1, 1970. Where it is not practicable to reassess the basic course of action, it is still important that further incremental major actions be shaped so as to minimize adverse environmental consequences. It is also important in further action that account be taken of environmental consequenses not fully evaluated at the outset of the project or program.
In Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275 (9th Cir. 1973), the court discussed this guideline, saying:
The fact that it is not practicable to reassess the basic course of action does not mean that an environmental impact statement need not be filed prior to a further major action taken pursuant to that basic course of action. The qualifying language in the second sentence of Guideline 11 is not intended to eliminate the possibility of a [§ 4332(2)(C)] statement. Rather, it serves to advise that while it may be deemed too late to reassess the project as a whole, further incremental major actions must be shaped so as to minimize adverse environmental consequences, and "to the maximum extent practicable," the [4332(2)(C)] procedure must be complied with.
And recently the Seventh Circuit in Swain v. Brinegar, 517 F.2d 766 (7th Cir., 1975), affirmed its language in Scherr v. Volpe, 466 F.2d 1027 (7th Cir. 1972), that "Although the Act is not to be given retroactive effect, it does apply . . . to certain projects `ongoing' when the Act became effective." 466 F.2d at 1034.
Thus it would seem that the kind of activity described in paragraph 32 of the Complaint is just the kind of "further incremental major actions" to which the CEQ was addressing itself in Guideline 11. Thus, while no claim would lie which compels the production of an environmental impact statement reviewing the feasibility of maintaining O'Hara as a major commercial international airport in light of its reputation as a significant source of pollution, we believe a claim would lie which compels the production of a statement giving consideration to the environmental effects of activities creating increased operational growth of theAirport.
Count II of the Complaint differs from Count I in that it challenges defendants' failure to prepare an impact statement with respect to the collective impact of certain actions as opposed to an impact statement for just particular actions. Count II states a separate claim than Count I. Scientists' Institute for Public Information, Inc. v. Atomic Energy Commission, 156 U.S.App.D.C. 395, 481 F.2d 1079, 1086-1088 (1973). This *641 is seen in Council on Environmental Quality, Memorandum to Federal Agencies on Procedures for Improving Environmental Impact Statements (May 16, 1972).[8]
Individual actions that are related either geographically or as logical parts in a chain of contemplated actions may be more appropriately evaluated in a single, program statement. Such a statement also appears appropriate in connection with * * * the development of a new program that contemplates a number of subsequent actions. * * * [T]he program statement has a number of advantages. It provides an occasion for a more exhaustive consideration of effects and alternatives than would be practicable in a statement on an individual action. It ensures consideration of cumulative impacts that might be slighted in a case-by-case analysis. And it avoids duplicative reconsideration of basic policy questions.
* * * * * *
Assuming, arguendo, we are incorrect in finding that paragraph 32 of the Complaint adequately avers major Federal action significantly affecting the quality of the human environment, Count IIIalleging violations of 42 U.S. C. §§ 4332(2)(A), (B), and (D)[9] nonetheless states a claim. In Hanly v. Kleindienst, 471 F.2d 823 (2d Cir. 1972) (action to enforce compliance with the N.E.P.A. with respect to erection of a jail and other facilities), the court reasoned that these substantive sections could not be subject to the "major Federal action" stricture accompanying § 4332(2)(C). "Indeed if they were so limited [§ 4332(2)(D)], which requires the agency to develop appropriate alternatives to the recommended course of action, would be duplicative since [§ 4332(2)(C)], which does apply to actions `significantly affecting' the environment, specifies that the detailed impact statement must deal with `alternatives to the proposed action.' 42 U.S.C. § 4332(2)(C)(iii)." 471 F.2d at 834-835.
Hanly's view that §§ 4332(2)(A), (B), and (D) stand independent of § 4332(2)(C) is further strengthened by its holding that § 4332(2)(B) requires that before a preliminary or threshold determination of significance is made the responsible agency must give notice to the public of the proposed major federal action and an opportunity to submit relevant facts which might bear upon the agency's threshold decision. 471 F. 2d at 836. "Otherwise the agency, lacking essential information, might frustrate the purpose of NEPA by a threshold determination that an impact statement is unnecessary. Furthermore, an adequate record serves to preclude later changes in use without consideration of their environmental significance as required by NEPA. (Footnote omitted)." Id. at 835.
Having concluded that a claim is stated against the F.A.A. defendants, it is but a minor extension of reasoning to so hold as to the C.A.B. defendants. The Civil Aeronautics Board has the statutory power to issue, alter, amend, modify, suspend or revoke air carrier permits or certificates of convenience and necessity. 49 U.S.C. §§ 1371 and 1372. The complaint alleges that the Board, in deciding whether or not to award, amend, or concel said permits or certificates, has assumed or adopted a policy that the airport shall be used as a primary point for the transfer of passengers and cargo traveling in air commerce; that the adoption of said policy has resulted in an unnecessary increase of air traffic at the Airport; and that said policy has never been subjected to the scrutiny required by N.E.P.A.
The C.A.B. defendants have replied that, "With regard to Board authorizations for commercial air carriers to *642 engage in air transportation at O'Hare, and particularly Board action since January 1, 1970, there is no evidence indicating the adoption of a policy to make O'Hare a central or hub airport. The State has failed to identify where a statement of this alleged policy appears, or to suggest, if the alleged policy has not been formally enunciated, what events in a course of conduct by the Board have led to the de facto establishment of this policy."[10] The short reply to that argument is that plaintiffs need not submit any evidence to withstand a motion to dismiss. A court assumes the verity of all well-pleaded facts on a motion to dismiss, and a complaint will not be dismissed for failure to state a claim unless it appears beyond doubt that plaintiffs can prove no set of facts which would entitle them to relief. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 2 L. Ed.2d 80 (1957).
In the policy statements of the C.A.B. dealing with implementation of the National Environmental Policy Act of 1969,[11] the Board said in part:
. . . [T]he Board believes that those of its actions which may fall within the category of "major Federal actions significantly affecting the quality of the human environment" are primarily, but not exclusively, those licensing activities which result in the authorization of air transportation
(i) * * *; or
(ii) To be operated under conditions or with equipment which might result in changes significantly affecting noise or air pollution levels.
Examples would include . . . the authorization of a substantial increase in service at existing airports, the authorization of service . . . by aircraft with unusual noise or air pollution characteristics, or the authorization of service which requires flight patterns, altitudes, or other operating characteristics which might result in a substantial or unusual environmental impact. (Emphasis added). 14 C.F.R. § 399.110(c)(1)
Interestingly, at least one federal appellate court held prior to N.E.P.A. that questions of environmental impact are are proper "public interest" questions in the Board's certification inquiry. Palisades Citizens Association, Inc. v. Civil Aeronautics Board, 136 U.S.App.D. C. 346, 420 F.2d 188, 192 (1969). How strange it would be to hold now, with the advent of the N.E.P.A., that the Board has a lesser duty.
In holding thus far that Counts I-V have stated claims upon which relief can be granted, we are not swayed to consider otherwise by defendants' authorities. For example, in City of Boston v. Volpe, 464 F.2d 254 (1st Cir. 1972), the City of Boston was appealing the denial of a preliminary injunction which would have restrained the Massachusetts Port Authority from continuing construction of the Outer Taxiway at Logan Airport, pending decision on the merits of Boston's complaint that many federal statutes and regulations, including the N.E.P.A., had not been complied with in connection with the processing of the Port Authority's request for a federal airport development grant. Inasmuch as the City of Boston abandoned its claim to preliminary relief against the federal defendants in the district court[12], the First Circuit was confronted with the threshold issue of "not whether the federal agencies have failed to follow the procedures, but whether, assuming such failure, a preliminary injunction should be issuednot against the agenciesbut against the Port Authority."[13] That court was resolving the factual issue of when, in light of the Airport and Airway Development Act, the federal *643 government becomes a partner with a local authority for purposes of subjecting the local authority to the strictures both of that act and of the National Environmental Policy Act. Our concern is clearly distinguishable; we must resolve what constitutes "major action", and not what constitutes "Federal."
In Virginians for Dulles v. Volpe, 344 F.Supp. 573 (E.D.Va.1972), suit was brought primarily against the F.A.A. as operator of the Washington National Airport, and against the commercial airlines which operate jet aircraft at that airport. The complaint alleged, inter alia, F.A.A. violations of the N.E.P.A., and sought to reduce alleged pollution from aircraft emissions and aircraft noise through the "prompt phasing out of all jet aircraft operations from the airport," 344 F.Supp. at 575, or at least abatement of jet operations through diversion to other local airports. Specifically, plaintiffs claimed that introduction of the Boeing 727-200 jets at Washington National Airport in 1968 was a "major action" requiring an environmental impact statement under § 4332(2)(C) of the Act.
Following a trial on the merits, the court concluded that "the airport has certainly reached that stage of completion that `the costs already incurred' in adopting and using it as a commercial jet airport `so outweigh the benefits of altering or abandoning' it as such that `no feasible and prudent alternative to the use' would exist. Arlington Coalition v. Volpe, 458 F.2d 1323 (4th Cir. 1972.)"[14] The court further concluded that the introduction of the Boeing 727-200 jet into Washington National Airport in 1968 was not a "major action" as that term is used in § 4332(2)(C) because the difference between the 727-200 jet and the 727-100 jet (the predecessor of the 727-200 jet) is minimal insofar as "`affecting the quality of human environment' is concerned."[15]
We note, initially, that the suit herein is not directed to the shut-down of O'Hare International Airport or any phase thereof; the attack is directed at its unstudied growth and the requested injunction is aimed at further increases in operation pending compliance with the N.E.P.A. More importantly, for purposes of relating Virginians for Dulles to the case at bar, is the fact that the court's conclusions were drawn from evidence at trial; evidently the court concluded that the complaint therein stated a claim upon which relief could be granted. Hence we do not view Virginians for Dulles as contradicting our conclusion.
Count VI sounds in tort, and claims that all defendants have unlawfully exercised their power and jurisdiction over aircraft moving in interstate commerce by unreasonably failing to utilize existing technologies for the control of aircraft noise and air pollutant emissions, thereby inflicting injury on persons and property in the neighborhood of O'Hare and creating a nuisance in the State of Illinois. Defendants urge dismissal of this count on the alternative grounds that: (1) Congress has preempted the field of common law nuisance actions based upon aircraft noise and air pollution, or (2) where a public or semi-public enterprise is authorized by statute, nuisance claims arising out of proper operations are to be denied. We agree with defendants that Count VI must be dismissed, but we make our determination on different grounds. For even assuming, arguendo, that federal regulations have not pre-empted the field of common law nuisance as to aircraft noise and air pollution and that the doctrine of legalized nuisance does not apply, we findbased on the authority of Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585 (1962)that liability for the nuisance claim lies with the City of Chicago and does not lie against the federal defendants.
*644 In Griggs, Allegheny County owned and maintained the Greater Pittsburgh Airport at a site it acquired to provide airport facilities under the National Airport Plan.[16] In one approach zone the pattern of flight established by the Civil Aeronautics Administrator[17] for aircraft landing at and departing from the airport required aircraft to fly regularly and frequently at very low altitudes over Griggs' residential property. The resulting noise, vibrations and danger forced Griggs and his family to move from their home. The Supreme Court held, with Justices Black and Frankfurter dissenting, that the County had taken an air easement over Griggs' property for which it had to pay compensation. The dissent felt that the United States, and not the Greater Pittsburgh Airport, had "taken" the airspace over Griggs' property. 369 U.S. at 91, 82 S. Ct. 531.
The Griggs Court reasoned:
It is argued that though there was a "taking," someone other than respondent was the takerthe airlines or the C.A.A. acting as an authorized representative of the United States. We think, however, that respondent, which was the promoter, owner, and lessor of the airport, was in these circumstances the one who took the air easement in the constitutional sense. Respondent decided, subject to the approval of the C.A.A., where the airport would be built, what runways it would need, their direction and length, and what land and navigation easements would be needed . . .
[I]t is the local authority which decides to build an airport vel non, and where it is to be located. We see no difference between its responsibility for the air easements necessary for operation of the airport and its responsibility for the land on which the runways were built. (Footnote omitted). 369 U.S. at 89, 82 S.Ct. at 533.
Plaintiffs argue that Griggs is no longer viable since the passage of the Federal Aviation Act of 1958,[18] asserting that said Act created a structure which provided for total federal control over the routing of commercial air carriers and over the design of aircraft as well as more control over the design of airports.[19]
We think plaintiffs should note that the dissent made this same argument, stating:
Congress has over the years adopted a comprehensive plan for national and international air commerce, regulating in minute detail virtually every aspect of air transitfrom construction and planning of ground facilities to safety and methods of flight operations . .
These airspaces are so much under the control of the Federal Government that every takeoff from and every landing at airports such as the Greater Pittsburgh Airport is made under the direct signal and supervisory control of some federal agent.[20] 369 U.S. at 92-93, 82 S.Ct. at 535-536.
We must assume that since the majority of the Court rejected that argument then, the Court would do likewise today.
*645 Further, it is clear that plaintiffs could plead a good claim against the City of Chicago as proprietor of O'Hare International Airport. In City of Burbank v. Lockheed Air Terminal, 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973), the Court had occasion to discussalbeit in a footnotethe putative right of an airport proprietor to issue aircraft noise regulations in light of pre-empting federal legislation. The footnote says, in part:
The letter from the Secretary of Transportation also expressed the view that "the proposed legislation will not affect the rights of a State or local public agency, as the proprietor of an airport, from issuing regulations or establishing requirements as to the permissible level of noise which can be created by aircraft using the airport. Airport owners acting as proprietors can presently deny the use of their airports to aircraft on the basis of noise considerations so long as such exclusion is nondiscriminatory." (Emphasis added.)
* * * * * *
Appellants and the Solicitor General submit that this indicates that a municipality with jurisdiction over an airport has the power to impose a curfew on the airport, notwithstanding federal responsibility in the area . . We do not consider here what limits, if any, apply to a municipality as a proprietor.
Plaintiffs contend that a nuisance action against the City of Chicago is ineffective because of the pre-emptive effect of federal legislation. But both pieces of legislation to which plaintiffs apparently referthe Noise Control Act of 1972[21] and the Clean Air Act[22] contain specific provisions for citizen suits[23] against appropriate federal defendants.
Finally, while we recognize that Griggs differs from the case at bar in that it involved the Federal Airport Act, since repealed, and the "taking" of property under the Fourteenth Amendment, we still consider the case controlling. All salient sections of the legislation relied upon in the Griggs opinion have been incorporated in substantially identical language in the Airport and Airway Development Act of 1970, 49 U.S.C. § 1701 et seq., and particularly § 1711 et seq. Further, both cases involve similar tortious behavior with the result that the reasoning of Griggs is generally applicable to this claim. Thus, Count VI is dismissed.
Suit not Lacking Person Needed for Just Adjudication
We see no merit in defendants' motion to dismiss this suit for plaintiffs' failure to sue the City of Chicago. As plaintiffs note, since the City of Chicago is subject to service of process and its joinder would not deprive this court of jurisdiction, the City of Chicago ("Chicago") is at very most "a party to be joined if feasible." Fed.Rules Civ.Proc. Rule 19, 28 U.S.C.A. The suit is certainly not susceptible to dismissal under Rule 12(b)(7).
Rule 19(a) reads, in pertinent part:
A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action *646 and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations by reason of his claimed interest.
Should this court hold for plaintiffs on the merits and enjoin further increases in aircraft operations and further issuing of carrier permits pending the filing of an environmental impact statement, it is clear that Chicago is not needed to execute said relief. Further, no argument is seriously proffered that Chicago's absence leaves any of the persons already parties subject to multiple or inconsistent obligations.
We need only consider, then, whether Chicago's absence will, as a practical matter, impair or impede its ability to protect its interest relating to the subject of this action. We do not believe that it will. First, defendants' cries of economic deterioration and damage to the City of Chicago are fanciful; the proposed relief would essentially maintain the status quo pending the filing of an environmental impact statement. More significantly, it is inconceivable that either the F.A.A. or C.A.B. could produce a meaningful statement without consulting the City of Chicago for its views and without balancing in among the factors adduced the economic impact of any proposed action on the City of Chicago. The City of Chicago is not prejudiced by its absence, and we hold that the City is not a party to be joined if feasible.
There being no further arguments of merit to consider, we order that defendants shall answer or further plead to Counts I-V of the Complaint. The motions to intervene are granted subject to the conditions stated herein, and defendants' motion to dismiss is denied except as to Count VI.
NOTES
[1] 42 U.S.C. § 4321 et seq. (1970) (Pub.L. 91-190, § 2, Jan. 1, 1970, 83 Stat. 852).
[2] Also referred to as § 102(2)(c) of the National Environmental Policy Act.
[3] 42 U.S.C. §§ 4332(2)(A), (B), and (D) respectively. Those sections read:
The Congress authorizes and directs that, to the fullest extent possible:
* * * * *
(2) all agencies of the Federal Government shall
(A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decisionmaking which may have an impact on man's environment;
(B) identify and develop methods and procedures, in consultation with the Council on Environmental Quality established by subchapter II of this chapter, which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations;
* * * * *
(D) study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources; . . ..
[4] Rule 12(b)(1) asserts lack of jurisdiction over the subject matter; Rule 12(b)(6) asserts failure to state a claim upon which relief can be granted; Rule 12(b)(7) asserts failure to join a party under Rule 19.
[5] While these doctrines are probably more appropriately discussed with Rule 12(b)(6), we confront the issues here for convenience and clearer organization.
[6] Set forth in this opinion in the first paragraph of the section entitled "The Complaint."
[7] Guideline 11, CEQ Guidelines, 36 Fed.Reg. 7724 (April 23, 1971).
[8] Reprinted in 3 BNA Environment Reporter 82, 87.
[9] See note 3, supra.
[10] Memorandum in Support of Defendants' Motion to Dismiss, p. 18.
[11] Code of Federal Regulations, Title 14, Chapter II, Subchapter F, Part 399, Subpart JPolicies Relating to the Quality of the Human Environment.
[12] 464 F.2d at 257 n. 4.
[13] 464 F.2d at 257. Footnote omitted.
[14] 344 F.Supp. at 577-578.
[15] 344 F.Supp. at 578.
[16] 49 U.S.C. § 1101 et seq. Repealed and replaced by 49 U.S.C. § 1711 et seq.
[17] The duties of the Civil Aeronautics Administrator were transferred to the Federal Aviation Agency Administrator, 72 Stat. 806-807, and most recently to the Secretary of Transportation and the Federal Aviation Administrator within that Department. 80 Stat. 931.
[18] 72 Stat. 739.
[19] Inasmuch as O'Hare International Airport was originally designed (under a different name) as a military port in 1941, and began commercial flights in 1946, one might argue that increased federal control of airport design in 1958 is irrelevant. We do not, however, rest our decision on this reasoning.
[20] Emphasis added and footnotes omitted.
[21] 42 U.S.C. § 4901 et seq.
[22] 42 U.S.C. § 1857 et seq.
[23] 42 U.S.C. § 4911 and 42 U.S.C. § 1857h-2, respectively. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4224046/ | 11/28/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
September 7, 2017 Session
IN RE CALEB F. ET AL.
Appeal from the Juvenile Court for Montgomery County
No. 14-JV-794, 14-JV-795 Timothy K. Barnes, Judge
___________________________________
No. M2016-01584-COA-R3-JV
___________________________________
Shortly after entry of an agreed permanent parenting plan, Father filed a petition to find
Mother in contempt and to modify the parenting plan. The petition alleged that a material
change in circumstance had occurred since the adoption of the agreed plan, such as
Mother allegedly interfering with Father’s parenting time. The juvenile court found a
material change in circumstance had occurred and modified the parenting plan by
increasing Father’s parenting time. From this ruling, Father appealed, claiming that the
court erred by not granting him equal parenting time. Because the court’s order
modifying the plan contains insufficient findings of fact and conclusions of law, we
vacate and remand.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Vacated and
Case Remanded
W. NEAL MCBRAYER, J., delivered the opinion of the court, in which ANDY B. BENNETT
and RICHARD H. DINKINS, JJ., joined.
Sharon T. Massey, Clarksville, Tennessee, for the appellant, Bryan F.
Mark R. Olson and Taylor R. Dahl, Clarksville, Tennessee, for the appellee, Kera S.
OPINION
I.
On December 18, 2014, Bryan F. (“Father”) filed a petition in the Juvenile Court
for Montgomery County, Tennessee, for civil contempt against Kera S. (“Mother”) and
for modification of permanent parenting plan. The plan, which had been approved by an
October 8, 2014 order, addressed the parties’ two children: Caleb F., born in May 2007,
and Jack F., born in February 2009 (together, the “children”). According to the order
approving the plan, the parties had “reached a substantial agreement with regard to the
terms of the [plan].” The plan designated Mother as the primary residential parent and
awarded her 295 days of parenting time each year, while Father received 70 days.
In his modification petition, Father alleged that Mother had “willfully violated the
Court’s Order and plan as follows”:
a. By denying the Father his allotted parenting time;
b. By denying the Father the ability to communicate with the children by
phone or other means;
c. By demeaning the Father to the children and instructing them to lie to
him[;]
d. By harassing the Father to his Army superiors about child support
despite his compliance with the Court’s Order;
e. By failing or refusing to inform Father of medical emergencies of
children;
f. Mother is intentionally scheduling events and appointments for children
on Father’s days of visitation.
Based on these allegations, Father asserted that a material change in circumstance
warranted a modification of the parties’ agreed parenting plan. Father sought, among
other things, “more time with the children” and a “recalculat[ion of] any award of child
support arrearages based upon any re-calculated child support figures resulting from this
petition.”
Mother filed a response, generally denying all material allegations in Father’s
petition. She counter-petitioned for civil and criminal contempt, alleging that Father
abused the children and requesting that Father’s parenting time be supervised.1
A.
The juvenile court held a trial over three days in August and November of 2015
and in January of 2016. The first day of the trial focused primarily, not on the allegations
of Father’s petition, but on a concern identified by the children’s guardian ad litem.
Calling the case “the strangest” he had ever seen, the GAL stated he had “grave
concerns” for the children. In opening statements, the GAL asserted that the children
1
The day following the filing of the petition for modification, the Kentucky Cabinet for Health
and Family Services received a report of suspected child abuse or neglect involving Father and his then
girlfriend. The court suspended Father’s parenting time as a result. Following an investigation, the
Cabinet for Health and Family Services found the allegations to be “unsubstantiated,” and the court
permitted Father to resume his parenting time.
2
acted “vastly different” in Mother’s care as opposed to Father’s care. In Mother’s care,
the children were “very much out of control,” but with Father, the children acted “like
appropriate children.” With respect to Caleb, who had been diagnosed with autism,
specifically, the GAL questioned “whether the conditions for which Caleb ha[d] been
diagnosed truly exist[].” The GAL could not understand how “someone with autism
c[ould] turn that off depending on which parent they [we]re with.”2
The testimony during the first day of trial largely corroborated the GAL’s
impressions. Two therapists and a case manager from Health Connect America testified
that, when the children were with Father, they were respectful and well-behaved. But,
when the children were under Mother’s care, the children acted unruly and defiant.
According to the testimony, the children would throw tantrums, squeal, moan, run around
the office, and kick and hit each other and Mother.
One therapist opined that Mother “enables” the children’s behavior, and she
recommended that Mother have a mental health assessment. The other therapist was of
the opinion that Mother’s “anxieties and her hatred towards [Father]” were detrimental to
the children’s mental health. She also recommended that Mother be mentally evaluated.
The second day of testimony undercut many, if not all of the concerns, expressed
by the witnesses from Health Connect America. A psychologist, who gave Mother a
psychological assessment after the first day of trial, stated that she found nothing
abnormal with Mother. When asked to square her assessment with the concerns
expressed by the Health Connect America witnesses, the psychologist testified that the
Health Connect America witnesses may have made assumptions about how Mother was
parenting, without speaking to Mother. And, in the psychologist’s view, some of the
statements by the Health Connect America witnesses “were not based on anything other
than speculation.”
The psychologist also explained why the children might behave differently in the
care of Mother and Father. In the psychologist’s view, it was not uncommon for children
to exhibit different behaviors in the home of one parent versus the home of the other.
The behavioral difference could be attributed to the fact that Mother had dealt with the
children all their lives whereas Father was relatively new to their lives. The psychologist
also pointed to the difference in the voice used by a father versus a mother and the
expectations that each parent might be placing on the children.
Only on the last day of the trial did the evidence focus on Father’s reasons for
seeking a modification of the parenting plan. Father asserted that Mother interfered with
his parenting time. He cited an incident on December 10, 2014, when Mother was not
home at an agreed-upon time for exchange of the children and failed to contact him. But
2
During the course of the trial, Father stipulated that Caleb was autistic.
3
Mother explained that she took the children’s half-brother to the emergency room for a
chest x-ray. While at the hospital, Mother also had Caleb seen because of an asthma
attack earlier in the day at school. To establish that she communicated these events to
Father, Mother entered into evidence her phone records. The phone records included a
text message sent to Father forty minutes prior to the exchange time detailing their
whereabouts and showed a three-minute phone call to Father’s phone later that day.
Father also accused Mother of not giving him the children on another occasion
around Thanksgiving when they did not have school. Under the agreed parenting plan,
Father exercised parenting time with the children on non-school days other than specified
holidays. According to Mother, only Jack was out of school the day Father referenced.
In addition, because it was close to the Thanksgiving break, which under the plan
alternated between Mother and Father, Mother did not believe that Father was entitled to
have the children for that additional day.
Although the parenting plan allowed Father two phone calls per week, Father
complained that Mother would sometimes not answer the phone. According to Father,
when Mother did answer, she would either refuse to let him speak to the children, make
noise in the background during the call, or cut the call short.
Father testified to other complaints regarding Mother. Father claimed Mother
would tell the children that she could not buy Christmas presents because of Father’s
failure to pay child support and that she called Father a liar in the children’s presence.
During Father’s time in the military, Mother contacted Father’s superiors regarding past
due child support. Father also alleged that Mother did not keep him adequately informed
about the children while they were in her care. Father complained that Mother failed to
advise him of Caleb’s asthma attack at school until after the fact and that Mother did not
give adequate notice of changes in the children’s extracurricular activities.
Mother testified that it was difficult to communicate with Father because he would
use obscene words and call her names. She admitted that her conduct when interacting
with Father and his wife had been inappropriate on occasion, such as “flipp[ing them]
off” at an exchange. Mother explained that Father and his wife videotaped the
exchanges, which irritated Mother. But Mother denied ever interfering with Father’s
parenting time and, in fact, claimed to have offered him more time than he was entitled to
receive. Mother also complained that Father undermined her parenting and told the
children she was a liar.
B.
At the conclusion of trial, the juvenile court announced that it would modify the
permanent parenting plan. Among other things, the court stated its purpose was “to try to
4
do what’s in the best interests of these children, particularly Caleb.” On May 4, 2016, the
court entered its “Final Order,” making the following findings:
The Court found, by a preponderance of the evidence, that the
children exhibit different behavior with the Father than with the Mother.
The Court found that there is not sufficient evidence to conclude that the
Mother has been doing anything wrong with regard to parenting the
children. No expert testimony was presented related to any deficiency of
the Mother. The testimony showed that the Mother’s parenting has been
appropriate.
There has been a material change of circumstances which would
warrant a modification of the current Permanent Parenting Plan.
The order then modified the parenting plan by increasing Father’s parenting time to 120
days and correspondingly decreasing Mother’s parenting time to 245 days. The court set
child support at $977 per month and awarded retroactive child support. In addition, the
court ordered the parties to split equally the cost of Caleb’s private school education.
From this decision, Father filed a notice of appeal. Father argues that the court
abused its discretion by not ordering equal parenting time and that the court’s “ruling was
erroneous, contrary to the weight of evidence and not supported by the record.”
II.
A.
As an initial matter, we must address Mother’s argument that Father’s notice of
appeal was untimely. An untimely notice of appeal deprives us of subject matter
jurisdiction over the appeal. Ball v. McDowell, 288 S.W.3d 833, 836 (Tenn. 2009).
Subject matter jurisdiction implicates our power to adjudicate a particular type of case or
controversy. Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004); Toms v. Toms, 98
S.W.3d 140, 143 (Tenn. 2003); Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn.
2000). If we lack subject matter jurisdiction, we are required to dismiss the appeal. See
Tenn. R. App. P. 3(e); Arfken & Assocs., P.A. v. Simpson Bridge Co., Inc., 85 S.W.3d
789, 791 (Tenn. Ct. App. 2002).
The thirty-day period in which a party aggrieved by the final judgment must file
either a post-trial motion or a notice of an appeal begins with the entry of a final
judgment. See Tenn. R. Civ. P. 59.02; Tenn. R. App. P. 4(a)-(b). Mother points out that
the “Final Order” adopting the modified permanent plan was entered on May 4, 2016, but
Father did not file his notice of appeal until July 27, 2016. Consequently, our analysis of
5
whether this appeal was timely turns on whether the “Final Order” constituted a final
judgment.
We conclude that the “Final Order” was not a final judgment.3 The Tennessee
Rules of Appellate Procedure define “final judgment” by exclusion. A final judgment is
not an “order that adjudicates fewer than all the claims or the rights and liabilities of
fewer than all the parties.” Tenn. R. App. P. 3(a). Orders that resolve fewer than all
claims or the rights and liabilities of fewer than all the parties are “subject to revision at
any time before entry of a final judgment adjudicating all the claims, rights, and liabilities
of all parties.” Id. Our Supreme Court has described a final judgment as a judgment
“that resolves all of the parties’ claims and leaves the court with nothing to adjudicate.”
Ball, 288 S.W.3d at 836-37.
Clearly, the court’s May 4, 2016 order did not resolve the parties’ claims. The
order did not address Mother’s counter-petition for contempt and request that Father’s
parenting time be supervised. While this case was pending on appeal, this Court
“identified at least four issues that appear to remain unresolved.” And as a result, on
October 25, 2016, we ordered the parties to obtain from the juvenile court a final order
disposing of all the pending claims and motions. On November 23, 2016, the court
entered an order disposing of outstanding motions and requests for relief. With the entry
of the November 23, 2016 order, Father’s prematurely filed notice of appeal was treated
as filed as of November 23, 2016. See Tenn. R. App. P. 4(d).
Alternatively, Mother argues that, because Father’s notice of appeal does not
reference the “Final Order” entered on May 4, 2016, the scope of his appeal is limited to
matters addressed in an order that was referenced in the notice.4 See id. 3(f) (“The notice
of appeal . . . shall designate the judgment from which relief is sought[.]”). We disagree.
The notice of appeal is not a “review-limiting device.” Id. 13(a) advisory committee cmt.
(“[O]nce any party files a notice of appeal the appellate court may consider the case as a
whole.”); Thompson v. Logan, No. M2005-02379-COA-R3-CV, 2007 WL 2405130, at
3
Mother also argues that no Rule 59 post-trial motion was filed within thirty days of the May 4
order to extend the deadline for the filing of the notice of appeal. Certain post-judgment motions, if
timely made, will toll the commencement of the thirty-day period for filing the notice of appeal until the
trial court adjudicates the pending post-judgment motion. Tenn. R. Civ. P. 59.01; Tenn. R. App. P. 4(b).
Because of our conclusion that the May 4 order was not a final judgment, this argument is similarly
unavailing.
4
Father’s notice of appeal referenced a “final judgment of the Juvenile Court of Montgomery
County filed on the 1st day of July.” The record contains no final judgment filed or entered on that date.
Mother posits that Father’s notice of appeal may be referring to an order that was entered on July 8, 2016,
following a hearing that occurred on July 1, 2016. The July 8, 2016 order addressed, among other things,
Caleb’s schooling and Father’s child support obligation.
6
*16 (Tenn. Ct. App. Aug. 23, 2007) (“[A]n appeal from a final judgment brings up all
pre-judgment orders or decisions, and any question of law or fact may be considered.”).
B.
We now turn to Father’s issues on appeal. We review the trial court’s factual
findings de novo on the record, with a presumption of correctness, unless the evidence
preponderates otherwise. Tenn. R. App. P. 13(d); see, e.g., Armbrister v. Armbrister, 414
S.W.3d 685, 692 (Tenn. 2013). Evidence preponderates against a trial court’s finding of
fact when it “support[s] another finding of fact with greater convincing effect.” Watson
v. Watson, 196 S.W.3d 695, 701 (Tenn. Ct. App. 2005). In weighing the preponderance
of the evidence, determinations of witness credibility are given great weight, and they
will not be overturned without clear and convincing evidence to the contrary. In re
Adoption of A.M.H., 215 S.W.3d 793, 809 (Tenn. 2007). We review the trial court’s
conclusions of law de novo, with no presumption of correctness. Armbrister, 414 S.W.3d
at 692.
Trial courts have wide discretion in fashioning parenting plans. Marlow v.
Parkinson, 236 S.W.3d 744, 748 (Tenn. Ct. App. 2007) (citing Parker v. Parker, 986
S.W.2d 557, 563 (Tenn. 1999)). We do not interfere with these decisions except upon a
showing of abuse of that discretion. See, e.g., Suttles v. Suttles, 748 S.W.2d 427, 429
(Tenn. 1988). A trial court abuses its discretion only if it: (1) applies an incorrect legal
standard; (2) reaches an illogical conclusion; (3) bases its decision on a clearly erroneous
assessment of the evidence; or (4) employs reasoning that causes an injustice to the
complaining party. Konvalinka v. Chattanooga-Hamilton Cty. Hosp. Auth., 249 S.W.3d
346, 358 (Tenn. 2008); see also Kline v. Eyrich, 69 S.W.3d 197, 203-04 (Tenn. 2002);
Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001). In other words, if “reasonable
minds can disagree as to [the] propriety of the decision made,” the trial court’s ruling will
be upheld. Eldridge, 42 S.W.3d at 85 (quoting State v. Scott, 33 S.W.3d 746, 752 (Tenn.
2000)).
Regrettably, in this case our review is hampered by the juvenile court’s failure to
make specific findings of fact and conclusions of law. As noted by Mother in her brief,
the court did specify the material change of circumstance that potentially justified
modification of the agreed permanent parenting plan. And as noted by both parties, the
court did not specify the statutory best interest factors upon which it relied in making a
determination of the children’s best interests. The court also failed to find that the plan as
modified was in the children’s best interest.
Tennessee Rule of Civil Procedure 52.015 requires trial courts to make findings of
fact and conclusions of law, even if neither party requests them. See, e.g., Ward v. Ward,
5
The Tennessee Rules of Civil Procedure governed this proceeding under Tennessee Rule of
7
No. M2012-01184-COA-R3-CV, 2013 WL 3198157, at *14 (Tenn. Ct. App. June 20,
2013). Rule 52.01 provides, in relevant part, “In all actions tried upon the facts without a
jury, the court shall find the facts specially and shall state separately its conclusions of
law and direct the entry of the appropriate judgment.” Tenn. R. Civ. P. 52.01. “Simply
stating the trial court’s decision, without more, does not fulfill this mandate.” Barnes v.
Barnes, No. M2011-01824-COA-R3-CV, 2012 WL 5266382, at *8 (Tenn. Ct. App. Oct.
24, 2012).
“[F]indings of fact are particularly important in cases involving the custody and
parenting schedule of children, as these determinations often hinge on subtle factors,
including the parents’ demeanor and credibility during [the] proceedings.” In re Connor
S.L., No. W2012-00587-COA-R3-JV, 2012 WL 5462839, at *4 (Tenn. Ct. App. Nov. 8,
2012) (quoting Hyde v. Bradley, No. M2009-02117-COA-R3-JV, 2010 WL 4024905, at
*3 (Tenn. Ct. App. Oct. 12, 2010)). The parties themselves deserve to know the factual
basis for the trial court’s decision on such important matters. Ward, 2013 WL 3198157
at *15. Trial courts also need to be as “precise as possible in making child custody
findings” in order to facilitate appellate review. In re Elaina M., No. M2010-01880-
COA-R3-JV, 2011 WL 5071901, at 88 (Tenn. Ct. App. Oct. 25, 2011).
Under Rule 52.01, the trial court’s order should indicate why and how it reached a
decision, and which factual findings led the court to rule as it did. Pandey v. Shrivastava,
No. W2012-00059-COA-R3-CV, 2013 WL 657799, at *4 (Tenn. Ct. App. Feb. 22,
2013). Although the court need not list every applicable statutory factor and an
accompanying conclusion for each factor, the trial court is required to “consider all
applicable factors.” Id. (quoting In re Connor S.L., 2012 WL 5462839, at *4). But we
have no indication that a trial court has considered all applicable statutory factors apart
from its written order. Anil Const., Inc. v. McCollum, No. W2013-01447-COA-R3-CV,
2014 WL 3928726, at *8 (Tenn. Ct. App. Aug. 7, 2014) (“It is well-settled that a trial
court speaks through its written orders—not through oral statements contained in the
transcripts—and that the appellate court reviews the trial court’s written orders.”) (citing
Alexander v. JB Partners, 380 S.W.3d 772, 777 (Tenn. Ct. App. 2011); Palmer v.
Palmer, 562 S.W.2d 833, 837 (Tenn. Ct. App. 1977)).
If we cannot determine from the trial court’s written order what legal standard it
applied or what reasoning it employed, then the trial court has not complied with Rule
52.01. See Ray v. Ray, No. M2013-01828-COA-R3-CV, 2014 WL 5481122, at *16
(Tenn. Ct. App. Oct. 28, 2014). The reviewing court must be able to ascertain “the steps
by which the trial court reached its ultimate conclusion on each factual issue.” Lovlace v.
Copley, 418 S.W.3d 1, 35 (Tenn. 2013) (quoting 9C CHARLES ALAN WRIGHT &
ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE § 2579, at 328 (3d ed. 2005)).
“Without such findings and conclusions, this court is left to wonder on what basis the
Juvenile Practice and Procedure 101(c)(3)(D).
8
[trial] court reached its ultimate decision.” Hardin v. Hardin, W2012-00273-COA-R3-
CV, 2012 WL 6727533, at *3 (Tenn. Ct. App. Dec. 27, 2102) (quoting In re K.H., No.
W2008-01144-COA-R3-PT, 2009 WL 1362314, at 88 (Tenn. Ct. App. May 15, 2009)).
We face precisely that scenario in this case.
Here, we are left to wonder what material change in circumstance prompted the
court’s decision to modify the parties’ agreed permanent parenting plan. Only a short
period of time had elapsed between the approval of the plan and Father’s petition to
modify. Father’s petition alleged various acts by Mother, such as interference with his
parenting time and harassment. But the court made no factual findings regarding Father’s
allegations, did not assess witnesses’ credibility, and made no mention of the statutory
best interest factors that should have directed its decision. Tenn. Code Ann. § 36-6-
106(a) (2017); see also Pandey, 2013 WL 657799, at *4. Although Father presented
evidence at trial, and the court found, that the children behaved differently when they
were with Father than when they were with Mother, the court also found that Mother’s
parenting was appropriate. Because the court did not make sufficient findings of fact or
conclusions of law to explain its decision, we cannot discern whether the court erred or
abused its discretion.
Although “the appellate court may choose to conduct its own independent review
of the record” in the absence of sufficient findings of fact, it is not prudent to do so in this
case. Williams v. Singler, No. W2012-01253-COA-R3-JV, 2013 WL 3927934, at *10
(Tenn. Ct. App. July 31, 2013); see also Lovlace, 418 S.W.3d at 36; Brooks v. Brooks,
992 S.W.2d 403, 404-05 (Tenn. 1999); Coley v. Coley, No. M2007-00655-COA-R3-CV,
2008 WL 5206297, at *6 (Tenn. Ct. App. Dec. 12, 2008). Unlike other cases in which
we have conducted an independent review, this record lacks conclusions of law and
assessments of the witnesses’ credibility. Without these determinations, we are ill-
equipped to conduct an independent review of the record.
Thus we vacate the juvenile court’s order and remand for entry of an order in
compliance with Rule 52.01. See Pandey, 2013 WL 657799, at *5-6; Hardin, 2012 WL
6727533, at *6; In re Connor S.L., 2012 WL 5462839, at *4; Simpson v. Fowler, No.
W2011-02112-COA-R3-CV, 2012 WL 3675321, *4 (Tenn. Ct. App. Aug. 28, 2012).
Pending entry of the trial court’s order on remand, the provisions of the current parenting
plan entered on May 4, 2016, will remain in effect as a temporary order.
C.
Mother requests that this Court grant her an award of attorney’s fees on appeal.
We have discretion under Tennessee Code Annotated § 36-5-103(c) to award a prevailing
party fees incurred on appeal. Pippin v. Pippin, 277 S.W.3d 398, 407 (Tenn. Ct. App.
2008); Shofner v. Shofner, 181 S.W.3d 703, 719 (Tenn. Ct. App. 2004). We consider the
following factors in our decision to award fees: (1) the requesting party’s ability to pay
9
the accrued fees; (2) the requesting party’s success in the appeal; (3) whether the
requesting party sought the appeal in good faith; and (4) any other relevant equitable
factors. Hill v. Hill, No. M2006-02753-COA-R3-CV, 2007 WL 4404097, at *6 (Tenn.
Ct. App. Dec. 17, 2007). In light of these factors and our decision to vacate and remand
the juvenile court’s judgment, we decline to award Mother her attorney’s fees incurred on
appeal.
III.
Based on the foregoing, we vacate the judgment of the juvenile court and remand
for all further proceedings as may be necessary and consistent with this opinion. The
current permanent parenting plan will remain in effect pending the entry of an order
containing the necessary findings of fact and conclusions of law.
_________________________________
W. NEAL MCBRAYER, JUDGE
10 | 01-03-2023 | 11-28-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/1873659/ | 141 B.R. 752 (1992)
In re Billie Vester RASBURY, Debtor.
In re BILL'S FORESTRY SERVICE, INC., Debtor.
UNITED STATES of America, Appellant,
v.
Billie Vester RASBURY and Bill's Forestry Service, Inc., Appellees.
No. CV-91-H-2445-W.
United States District Court, N.D. Alabama, W.D.
March 3, 1992.
*753 Jack W. Selden, Richard E. O'Neal, U.S. Atty.'s Office, Birmingham, Ala., Scott Crosby, Neal I Fowler, U.S. Dept. of Justice, Tax Div., Washington, D.C., for appellant.
Marvin E. Franklin, Najjar Denaburg P.C., Birmingham, Ala., Bruce Peter Ely, Tanner & Guin, Tuscaloosa, Ala., for appellees.
MEMORANDUM OF OPINION
HANCOCK, District Judge.
The court has before it the above-referenced matter on appeal from the United States Bankruptcy Court for the Northern District of Alabama, Western Division 130 B.R. 990; jurisdiction exists pursuant to 28 U.S.C. § 158(a).
The proceeding below involved the debtors' objection to claims filed by the Internal Revenue Service (the "IRS"); the litigation that ensued was a core proceeding under 28 U.S.C. § 157(b)(2)(B). On appeal, the Bankruptcy Court's findings of fact are due to be affirmed unless clearly erroneous. Birmingham Trust National Bank v. Case, 755 F.2d 1474, 1476 (11th Cir.1985); In re Alchar Hardware Co., 764 F.2d 1530, 1532 (11th Cir.1985); Bankruptcy Rule 8013. The test to be applied to factual findings "is not whether a different conclusion from the evidence would be appropriate, but whether there is sufficient evidence in the record to prevent clear error in the trial judge's findings." In re Garfinkle, 672 F.2d 1340, 1344 (11th Cir.1982). Issues of law and the bankruptcy court's determination of the legal significance that it attaches to its factual findings, however, are to be reviewed de novo. Citicorp, Inc. *754 v. Davidson Lumber Co., 718 F.2d 1030, 1032 (11th Cir.1983).
The record reflects that on September 5, 1991, the bankruptcy court entered an order sustaining the debtors' objections to claims filed by the IRS for withholding taxes (income, FICA and FUTA), interest and penalties allegedly owed by the debtors for the tax years 1986, 1987 and 1988. The bankruptcy court disallowed the IRS claims, finding that the government had failed to meet its burden of proof regarding liability and amount, and that the debtors had demonstrated that they were entitled to the Section 530 "safe harbor" provisions of 26 U.S.C. § 3401.
The memorandum of opinion entered in conjunction with the September 5, 1991 order indicates that the bankruptcy court made the following findings of fact. Beginning in 1976, debtor Billie Vester Rasbury of Winfield, Alabama worked for himself in the logging contracting business. In 1986 he incorporated his sole proprietorship under the name of Bill's Forestry Service, Inc. ("BFS") in Fayette, Alabama. Rasbury became the president of the corporation; he and his wife were and are the sole shareholders.
Rasbury and BFS contracted with forest product companies to supply logs, remove timber from the land of others and pay crews who cut, skidded, bunched and hauled logs. Rasbury provided heavy equipment such as skidders, hydroaxes, knuckleboom loaders and some of the trucks and fuel used to haul the cut timber. The men hired by Rasbury provided some of the trucks used for hauling, along with saws, hand tools, safety equipment and their skills.
At the hearing before the bankruptcy court, three BFS crew members testified that they were paid as independent subcontractors, a practice they claimed was consistent with widespread custom in the logging industry in West Alabama in the 1980s. Thomas F. Collins of Fayette, Alabama, a certified public accountant who handled the Rasbury and BFS accounts for the years at issue (1986, 1987 and 1988), testified that he advised Rasbury of the potential for problems with the IRS in classifying the crew members as independent contractors. Collins further testified, however, that he advised Rasbury that his crew members qualified as independent contractors under the "twenty factors" test (a reference to interpretations by the IRS and various courts of the "usual common law rules" referred to in 26 U.S.C. § 3121(d)(2)).
Rasbury's employees generally testified that they were paid by the ton of wood produced, that they had no "employment" benefits such as health insurance or pension rights other than workman's compensation insurance, and that crew members hired and fired their own coworkers and decided when to work.
Witnesses for the government included three former truck drivers for BFS, one of whom testified that he had worked for Rasbury for about seven months and that the signature on the independent contractor contract under his name was not his.[1] Another former driver testified that he had worked for BFS in 1987-88; the third claimed to have worked for the debtor firm for six months. All three witnesses indicated that they were paid by the day rather than by tonnage. The debtor, however, introduced evidence that all three had signed 4669 Forms attesting that they had paid their own taxes on funds paid to them as independent contractors.
Expert witnesses for Rasbury[2] testified that paying logging crew members as independent *755 contractors was widespread industry custom in West Alabama in the 1980s. The government introduced as an expert witness Ken Rolston of Panama City Beach, Florida, a former executive with the American Pulpwood Association based in Washington, D.C.[3] and former forester and wood procurement specialist with Kimberly-Clark Corporation in Childersburg, Alabama.[4] Rolston testified that in his opinion crew members who brought "nothing but bare hands" to the job were employees rather than independent contractors. He admitted, however, that a worker who brought his own truck to the job "sound[ed] like an independent contractor," and that the classification was debatable as to crew members who brought their own tools, supplied their own gasoline and hired their own coworkers.
Rasbury testified and government exhibits showed that Rasbury and BFS carried workmen's compensation insurance on crew members for the three years in question. According to Rasbury, the insurance was a requirement to do business with big firms like Weyerhaeuser, and he deducted the cost of the men's coverage from the per-ton rate paid to them, similar to a self-insurance program.
Rasbury and other witnesses for the debtors further testified that Rasbury filed IRS informational Forms 1099 on his men as independent contractors for most of the funds paid them by BFS. Smaller sums were paid to the men and listed on W-2 Forms; these sums were for hours at minimum wage paid for equipment maintenance on "rain days."[5] Rasbury contended that the payment for maintenance was different because it was not the production work of cutting, skidding, bunching, loading and hauling logs, and that he preferred to base such work on tonnage because the incentive increased production.
Both sides agreed that workers for the debtors signed written contracts indicating that they understood that they were independent contractors and that Rasbury would not withhold income, FICA or FUTA taxes from the amounts they earned under their respective contracts. The evidence was inconclusive as to whether Rasbury filed 1099 Forms for the tax years prior to 1986, although Rasbury testified that he instructed his then-accountant, Joe White (a public accountant but not a C.P.A.), to file these forms once he learned in 1979 that they were required. White testified that he never received the information necessary to fill out the 1099 Forms; the IRS, however, presented no evidence showing that it had verified through its own records that the forms were not filed. Both sides agree that the debtors filed 1096 and 1099 Forms with the IRS and their workers for the years at issue.
Connie Brown, C.P.A. and revenue agent for the IRS, testified that BFS was picked at random for a "TCMP" (Taxpayer Compliance Measurement Program) audit for the 1987 tax year, thereby initiating the sequence of events that resulted in the tax proceeding before the bankruptcy court. According to Brown, related returns are requested as part of the "package audit" requirement, "to see if there is a potential payroll tax issue." Brown testified that in reviewing the returns she noticed that in some cases 1099 and W-2 Forms had been issued to the same persons and that the W-2 Forms were filled out in multiples of $134.00.[6] After reviewing the debtors' records, Brown and the IRS concluded that the debtors' workers should have been classified as employees and that BFS should *756 have been withholding federal income taxes and FICA and FUTA employment taxes.
Collins, however, testified that he and Rasbury were told that if they were able to contact all of the workers who had been paid as independent contractors and have them sign IRS 4669 Forms attesting that each worker had paid his own tax on the compensation reported on the 1099 Forms, the taxes actually paid by the workers would be deducted from any liability assessed against BFS and Rasbury.[7] According to Collins, he and Rasbury were able to obtain the necessary signatures from 94% of the workers; they were unable to find the remaining 6%.
On April 14, 1989, Brown prepared an "unagreed report" alleging that Rasbury owed some $161,502.69 in taxes, interest and penalties. Negotiations between the debtors and the IRS continued into the summer of 1989 but broke down when Rasbury was unable to persuade other logging contractors to come forward with affidavits for the IRS admitting that they also paid their crews as independent contractors.
On June 22, 1989, the IRS issued a letter "proposing adjustments" of $161,502.69 to the debtors' tax obligations for the years 1986, 1987 and 1988. Brown's "unagreed report" was attached to the letter. Rasbury and Collins testified that the debtors began treating crew members as employees effective October 1, 1989, in response, according to Collins, to the IRS audit process.
On April 4, 1990, Rasbury filed his individual Chapter 11 bankruptcy petition, and on July 5, 1990, BFS filed its corporate Chapter 11 bankruptcy petition. There is no evidence that the IRS assessed the taxes allegedly owed by the debtors or perfected a tax lien on the debtors' property prior to the filing of the bankruptcy petitions. On July 20, 1990, and on August 31, 1990, the IRS filed Proofs of Claim against Rasbury and BFS, respectively, for the $161,502.69 in withholding taxes, interest and penalties claimed for 1986, 1987 and 1988.[8] Thereafter, on October 5, 1990, the debtors filed their objection to the IRS's claims.
In resolving the above-described controversy, the bankruptcy court relied on the following conclusions of law:[9] 1) that in *757 bankruptcy, the government has the ultimate burden of proving that the liability alleged on its proof of claim is indeed owed by the debtor, whether the taxes are assessed or unassessed; 2) that the bankruptcy context alters the taxpayer's normal burden to prove that his workers are independent contractors, as opposed to employees; 3) that since the government must prove the amount owed, it has the burden of establishing whether the taxpayer was due abatement and whether a penalty should be applied, and 4) that the debtors in this case have the burden of proving, by a preponderance of evidence, that their arrangement with their crew members for the tax years in question qualifies for Section 530 "safe harbor" status.
Applying the above legal standards to the facts, the court found 1) that the IRS had failed to prove the amount identified in its proof of claim because it never established a specific amount due (taxes, interest, or penalty); 2) that the IRS had failed to meet its burden of proving that BFS's crew members were improperly classified as independent contractors; and 3) that the "safe harbor" of Section 530 would apply to the debtors for the tax years 1986, 1987 and 1988. Accordingly, the court ordered that the debtors' objection to the IRS claims be sustained, and that such claims be disallowed.
Both sides agree that the following issues are relevant on appeal: 1) Did the Bankruptcy Court err in placing the ultimate burden of proof upon the government to substantiate its proofs of claim as to the legal liability of the debtors? 2) Did the Bankruptcy Court err in placing the ultimate burden of proof upon the government to substantiate its proofs of claim as to the amount of liability owed by the debtors? 3) Did the Bankruptcy Court err in determining that the debtors were entitled to relief under Section 530 of the 1978 Revenue Act? For reasons set forth more fully below, the court concludes that the bankruptcy court's factual findings are not "clearly erroneous," and that its conclusions of law are correct. Thus, the decision of the bankruptcy court is due to be affirmed.
As illustrated by the above issues, the proper allocation of the burden of proof is crucial to the resolution of this case. It has long been settled that the burden of proof in the litigation of tax matters generally rests with the taxpayer. Helvering v. Taylor, 293 U.S. 507, 515, 55 S. Ct. 287, 291, 79 L. Ed. 623 (1935). In a bankruptcy case, however, the burden of proof with regard to a claim is ultimately upon the claimant. Under Bankruptcy Rule 3001(f), a properly filed proof of claim constitutes prima facie evidence of the validity and amount of the claim. The debtor, however, need only present evidence supporting its objection in order to shift the burden of proving the claim back to the claimant. See In re Leedy Mortgage Co., 111 B.R. 488, 491 (Bankr.E.D.Pa.1990).
Here the government argues that "controlling case law in the Northern District of Alabama and in the Eleventh Circuit holds that a debtor has the ultimate burden of proof in proving that it is not liable for unassessed tax liabilities reflected on a filed proof of claim." The government further argues that the debtor also has the burden of proving that, although it may be legally liable, it is not liable for the amount claimed on the filed proof of claim. In support of its argument, the government cites (while noting that other courts have held otherwise)[10]In re *758 Terrell, 75 B.R. 291 (N.D.Ala.1987), rev'g 65 B.R. 365 (Bankr.N.D.Ala.1986), aff'd w/out opinion, 835 F.2d 1439 (11th Cir. 1987).
Terrell involved the appeal of a judgment entered in a chapter 7 proceeding wherein the bankruptcy court held that the government bore and had failed to sustain its burden of proving by a preponderance of the evidence (1) that the debtor was a "responsible person" for the 26 U.S.C. § 6672 penalty in connection with the failure of two closely held corporations to pay their withholding tax liabilities; and (2) that the debtor's alleged omissions were "willful" for such tax indebtedness to be nondischargeable pursuant to 11 U.S.C. § 523(a)(1)(A). Terrell, 75 B.R. at 293. On appeal, the district court held that the bankruptcy court erred as a matter of law in placing the burden of proof on the government in a "responsible officer" case under Section 6672. According to the district court,
The law is unambiguous. In a responsible officer case, once an assessment is made, the burden of proof, both as to responsibility and willfulness, is on the taxpayer.
Id. at 295. Accordingly, the district court concluded: "[t]he case law is clear that the taxpayer, even a taxpayer in bankruptcy, has the burden of proof under 26 U.S.C. Section 6672." Id. at 296.
The court finds that Terrell's application is properly limited to its factual situation. The decision quite clearly deals with the imposition of penalties under Section 6672,[11] which penalties are not sought in this case. Moreover, the holding was based on the assumption that the taxes at issue had been assessed, which is not the case here.[12] Even the cases cited by the government, Resyn Corp. v. United States, 851 F.2d 660, 662-63 (3rd Cir.1988) and Kontaratos v. United States, 36 B.R. 928, 931 (D.Maine 1984), place the burden of proof on the debtor in situations where assessments were made by the IRS prior to bankruptcy.
The better-reasoned authority[13] suggests that the government should bear the burden of proof in claims litigation, especially where, as here, the taxes and/or penalties at issue have not been assessed. The court therefore concludes that the bankruptcy court correctly placed the ultimate burden on the government to prove, with regard to its claims against the debtors, *759 both the legal liability of the debtors and the amount of said liability.
Applying this standard, the court finds no error in the analysis or the conclusions of the bankruptcy court. To establish the debtors' legal liability, the government had to prove that the debtors' workers were employees and not independent contractors. An employee is defined in 26 U.S.C. § 3121(d)(2) as:
Any individual who, under the usual common law rules applicable in determining the employer-employee relationship, has the status of an employee.
Regulations 31.3121(d)-1(c), 31.3306(i)-1 and 31.3401(c)-1 all provide, in part:
[G]enerally, the relationship of the employer and employee exists when the person for whom services are performed has the right to control and direct the individual who performs the services . . . it is not necessary that the employer actually direct or control the manner in which the services are to be performed; it is sufficient if he has the right to do so.
The issue, then is whether the taxpayer had the requisite "right to control;" thus, it was the government's burden to prove that Rasbury and BFS did in fact have such a right with regard to their workers.
The bankruptcy court, analyzing the evidence presented by the parties under a modified version of the "twenty factors" test,[14] determined that the government had failed to satisfy this burden.[15] Specifically, the court found (1) that loggers historically determined their own hours, and that while Rasbury had assigned his workers to a tract, the crews set their own time and chose their own method of removing the timber;[16] (2) that loggers trained on the job; (3) that only the end result of the workers' services (the delivery of the logs) was integrated into Rasbury's business; (4) that workers cooperated as a team to achieve the greatest productivity, since individual *760 were paid on a per-ton basis; (5) that crew members hired other crew members;[17] (6) that while it is common for logging crew members to develop a long-standing relationship with one logging contractor, it is also common for workers to leave one contractor for another, or to work for more than one contractor at a time;[18] (7) that Rasbury did not set the hours of work for his crew members[19] (8) that while crew members had to work as the team directed, when the team was not working they were free to work for others; (9) that all of BFS's work was done on tracts assigned by various mills;[20] (10) that crew members set their own order or sequence of tasks; (11) that no oral or written reports were required; (12) that the crew was paid by the ton for log production work;[21] (13) that none of the workers were paid expenses of any kind; (14) that Rasbury and BFS furnished the heavy equipment for its workers, while some of the drivers brought their own trucks and other crew members furnished their own saws, hardhats and other safety equipment;[22] (15) that crew members who supplied their own trucks, chain saws, safety gear or other equipment should be viewed as having a "significant investment;"[23] (16) that *761 since crew members were paid by the ton, their profit depended on the timber cut and removed, less their expenses;[24] (17) that crew members could and did work for more than one firm at a time; (18) that workers advertised to logging producers through word-of-mouth; (19) that although Rasbury did, on occasion, hire and fire workers, the crew would also discharge individual members who failed to pull their share of the load; and (20) that each crew member had a right to terminate his relationship with BFS at any time (an indication of an employer/employee relationship).
In addition to the above factors, the bankruptcy court also referred to the following considerations: (1) that in the 1980s in West Alabama it was widespread custom to classify loggers as independent contractors;[25] (2) that most of the crew members and Rasbury intended to create an independent contractor relationship; (3) that all of the parties employed as crew members by Rasbury and BFS signed written contracts designating themselves as independent contractors, and that 94% of them, after the fact, signed 4669 Forms attesting that they had paid their own taxes on the money paid to them by BFS; and (4) that with the exception of a limited workmen's compensation program, BFS provided its crew members with no employee-type benefits, and that BFS provided workmen's compensation to its workers because it was a condition required to do business with large log consumers.
Viewing the evidence as a whole, the court cannot conclude that the findings of the bankruptcy court with regard to the status of debtors' workers were "clearly erroneous." Applying proper legal standards, the court correctly concluded that the government had failed to carry its burden of proving that the debtors' workers for the years at issue were "employees" rather than "independent contractors;" accordingly, the debtors are not liable for failing to withhold federal employment taxes as to these workers.
Because the government failed to establish the legal liability of the debtors, it is not necessary for the court to consider whether the government carried its burden of establishing the amount of such legal liability, or whether the debtors carried their burden of showing entitlement to the "safe harbor" provisions of Section 530. Absent legal liability for the taxes allegedly owed, the debtors' objection to the proofs of claim filed by the government were properly sustained, and such proofs of claim were rightfully disallowed. Accordingly, a separate order affirming the *762 decision of the bankruptcy court will be entered.
ORDER OF AFFIRMANCE
In accordance with the memorandum of opinion this day entered, it is ORDERED, ADJUDGED and DECREED that decision of the bankruptcy court entered in the above referenced case on September 5, 1991 is AFFIRMED.
NOTES
[1] This same witness admitted on cross-examination that he had been involved in a physical fight with Rasbury after he quit his job, that he had been convicted of breaking and entering, a felony, and that he had neither paid his taxes nor filed a return with the IRS for 1988, 1989 or 1990.
[2] These expert witnesses included 1) Collins; 2) two logging contractors and 15-20 cutters, skidders and logging truck drivers; 3) C. Stephen Richardson, a Tuscaloosa C.P.A. with three logging contractors as current clients and some seven to eight in the past; 4) G. Levert Lawrence, another Tuscaloosa C.P.A. with five logging contractors as current clients and some ten in the past; and 5) Terry W. Jacobs, a registered forester working with Mid-South Forestry Service, Inc. in Gordo, Alabama.
[3] Rolston described the pulpwood association as a trade/lobbying organization which represented more large paper mills and pulpwood purchasers than logging contractors such as debtors.
[4] The Kimberly-Clark Mill is located some 100 miles from Tuscaloosa.
[5] The amount reported on the W-2 Forms was also the amount reported to the debtors' insurance company for workmen's compensation insurance.
[6] The debtor testified and stated in his brief that the men listed on the W-2 forms were being paid minimum wage for "rain day" preventive maintenance. Forty hours at the then-minimum wage of $3.35 per hour would be $134.00.
[7] The Form 4669, Employee Wage Statement, is a statement made by the wage-earners of a business that the wages paid to them by the company, from which taxes were not withheld, have been reported on their income tax returns, and that the taxes due were paid. Brown testified that the deduction of taxes actually paid by the workers who received the compensation would "abate" liability assessed against Rasbury.
[8] On April 30, 1991, the IRS filed an adjusted Proof of Claim for a total of $211,776.02 in taxes, interest and penalties. Brown testified that she knew of no attempt by the IRS to follow up on the 4669 Forms she had asked Rasbury to complete; thus, the total claimed by the IRS is for the maximum taxes due as if none of the workers had paid any such taxes themselves. The Bankruptcy Court asked Brown whether the IRS had computed the taxes actually paid by the 94% of debtors' crew members who had signed the 4669 Forms to determine how much, if any, taxes were actually due. Brown replied, "That abatement is not made until the tax is assessed. There can be no abatement until assessment and there is no assessment because of the bankruptcy." Brown did not explain why the IRS did not compute the actual unpaid taxes for informational or evidentiary purposes.
In its brief filed on November 12, 1991, the government states that such computation was begun at the request of its counsel after discussing the case with the debtors' counsel and agreeing that if in fact the taxes had been paid, then the amount at issue would be significantly less. According to the government, counsel agreed to postpone the trial initially set for early March to provide the IRS with time to research the issue. However, "early research" indicated that the majority of taxes claimed to have been paid by the workers had in fact NOT been paid, and, based on this information and the understanding that the research could take a considerable amount of time, both sides agreed to proceed to trial.
As stated earlier, the record contains 4669 Forms signed by some 94% of the debtors' workers, indicating that such workers were paid as independent contractors. While the government argues that such forms were not "verified" by the IRS, there is no evidence challenging the truth of the information contained therein. Nothing of record documents the so-called "early research" conducted by the IRS, which research purportedly contradicts the implications of the 4669 Forms.
[9] At the outset the court noted that both sides had presented evidence designed to put the instant case in the larger context of a nationwide, decades-long dispute between the IRS and the forestry products industry over how workers should be classified for withholding tax purposes. The controversy typically has involved a dispute both over how workers should be classified under the twenty "common law" factors and whether the Section 530 "safe harbor" should be applied where the IRS finds a misclassification. While acknowledging that a perspective on the general controversy was helpful, the bankruptcy court emphasized that the central issue before it involved "the equities of the situation of this particular individual debtor, this particular corporate debtor for the particular years in question in West Alabama." See Memorandum of Decision dated September 5, 1991, pp. 11-12.
[10] See, e.g., In re Fidelity Holding Co., Ltd., 837 F.2d 696, 698 (5th Cir.1988); In re Watson, 456 F. Supp. 432, 435 (S.D.Ga.1978); In re Premo, 116 B.R. 515, 524 (Bankr.E.D.Mich.1990) (and cases cited therein); In re Brady, 110 B.R. 16, 18 (Bankr.D.Nev.1990).
[11] The government argues that any attempt to distinguish the factual scenario in the instant case from that in Terrell is "unpersuasive" because (1) the taxes at issue in a responsible person dispute are also at issue in an employee/independent contractor dispute and thus are afforded the same priority in bankruptcy, and (2) if the bankruptcy court had sustained the claims of the government, then Rasbury could have been determined to be the responsible person who would bear the liability to pay the unpaid employment taxes should the corporation be unable to do so. The fact remains that in this case the issue below was not whether Rasbury was the "responsible person" for the purposes of Section 6672, and no such determination was made.
[12] As the government points out, whether the underlying taxes had been assessed in Terrell is "confusing" at best. A chart contained in a footnote in the initial bankruptcy court's decision indicates that the relevant underlying tax liability was unassessed, due to the automatic stay. 65 B.R. at 366. The district court's decision, however, indicates that a tax lien based on the debtor's failure to pay the withholding taxes had been filed and that the IRS had assessed penalties under Section 6672. 75 B.R. at 294. Even if the taxes at issue had not been assessed, it is clear that the district court based its holding on an assumption that such an assessment had been made. 75 B.R. at 295 (wherein the court recites the "unambiguous law" that "once an assessment is been made, the burden of proof, both as to responsibility and willfulness, is on the taxpayer"). Thus the court refuses to apply the holding in Terrell to cases where, as here, the taxes at issue remain unassessed.
[13] As noted by the court in the In re Premo decision:
[T]he practice in bankruptcy of requiring the claimant to prove his claim is in essence an application of the general rule allocating the burden of proof to the moving party. Those cases which have invoked this rule even when the claimant is a taxing authority have done so on the basis that (1) the Code lacks any provision which distinguishes government claims from claims of private entities . . . and (2) the IRS should be "treated like any other claimant under the Bankruptcy Code because the estate is a party in interest and not just the taxpayer."
In re Premo, 116 B.R. at 523 (citations omitted).
[14] The factors to be considered in making the determination include the industry's right to control how work shall be done, opportunities for profit or loss, investment in facilities, permanency of relation and skill required in the claimed independent operation. No one factor is controlling, nor is the list complete. See United States v. Silk, 331 U.S. 704, 716, 67 S. Ct. 1463, 1469-1470, 91 L. Ed. 1757 (1947). The IRS has compiled a non-exclusive list of twenty factors to be used in analyzing and deciding whether workers are employees or independent contractors. See Revenue Ruling 87-41, 1987-1 C.B. 296. These factors address the following considerations: (1) instructions, (2) training, (3) integration, (4) services rendered personally, (5) hiring, supervision and paying assistants, (6) continuing relationship, (7) set hours of work, (8) mandatory full time, (9) doing work on employer's premises, (10) order or sequence (of tasks) set, (11) oral or written reports, (12) payment by the hour, week or month, (13) payment of business and/or travelling expenses, (14) furnishing of tools and materials, (15) significant investment, (16) realization of profit or loss, (17) working for more than one firm at a time, (18) making service available to the general public, (19) right to discharge, and (20) right to terminate.
In addition to the twenty IRS factors, the court also considered four others: (1) industry practice or custom, (2) the intent of the parties (how they viewed the relationship), (3) the existence of written, signed independent contractor agreements, and (4) whether employee-type benefits were provided.
[15] Both parties agree that not all twenty factors add insight into the logging industry's employment practices (see Gov't. Brief filed Nov. 12, 1991, p. 29), and the bankruptcy court did not address all such factors. In its reply brief filed on December 10, 1991, the government states that those factors which it did not address in its earlier brief are either indicia of employee status, namely factors 4 (services rendered personally) and 10 (order or sequence set), or do not provide significant insight into the proper treatment of the workers, namely factor 18 (making a service available to the general public).
[16] The government relies on testimony from two workers, Robert Sharp and James Brown, that either Rasbury or his foreman told them when and where to work. The testimony of the debtors' witnesses, however, is to the contrary. The bankruptcy court concluded that the more credible evidence indicated that the workers set their own hours and chose their own methods of removing the timber, and the evidence supports such a finding. The fact that Rasbury may have assigned his workers to various tracts does not necessarily establish the requisite "right to control." As the Alabama Supreme Court has pointed out:
. . . the right to control is not established by a showing that the alleged employer retains the right to supervise the alleged employee merely to determine if the employee performs in conformity with the contract.
See Danford v. Arnold, 582 So. 2d 545, 547 (Ala. 1991).
[17] The government's witnesses (Robert Sharp, Jerry Knight and James Brown) testified that they were hired by Rasbury and that he did the hiring and firing of crew members. As stated earlier, the bankruptcy court discredited the testimony of Jerry Knight based on the fact that he had been in a fight with Rasbury after quitting his job, was a convicted felon and had not paid his taxes or filed a return with the IRS for 1988, 1989 or 1990. While it is undisputed that Rasbury testified that he did, on occasion, hire workers, he further testified that he did not supervise or pay assistants. Moreover, he, Don Moore and Ray Goodwin all testified that often crew members would hire and fire workers. See Transcript, pp. 40-41; 151; 172-173.
[18] The government points out that even the debtor and the debtors' witnesses testified that loggers worked for the debtors on a continuing basis, and that no worker testified that his working relationship was severed due to the completion of a particular job under contract. However, the evidence introduced by the debtors shows that the number of workers hired for the years in question far exceeded the number of workers for the crew or crews at any one time, suggesting a high turnover rate. See Debtors' Ex. 3. Moreover, the testimony indicated that it was not uncommon for workers to leave one contractor for another or to work for more than one contractor at one time.
[19] As mentioned earlier, the testimony on this issue is conflicting. However, since the government bears the burden of proof, it is incumbent upon it to produce the greater amount of evidence showing that the debtors did not tell the workers when to work. The government relies on testimony by three of the debtors' former workers, one of which was discredited by the bankruptcy court. The court agrees with the bankruptcy court that such testimony does not constitute the "greater amount of evidence."
[20] The government argues that even if the debtors did not own the premises on which work was done, they, and not the workers, were "in control" of the property. The government fails to indicate the evidence on which it bases such an assumption.
[21] The government points out that testimony on this issue is in conflict. It places great weight on the fact that while it contacted only three former workers, all three testified that they were paid by the day. As stated previously, the testimony of one former worker was discredited by the bankruptcy court. Rasbury, Moore and Goodwin all testified that workers were paid on a per ton basis of the total timber produced. See Transcript, pp. 32, 148, 171, 175, 177. The government has the burden to prove that the debtors paid their workers by the day; the evidence fails to show that it carried this burden.
[22] The court expressly rejected the "bare hands" test articulated by government expert Rolston. Noting that many skilled professionals and craftsmen who operate as independent contractors carry their best, albeit intangible, tools inside their head, the court found the same to be the case with logging crew members. Sept. 5, 1991 order, p. 24.
The government argues that the bankruptcy court overstated the strength of the record to support its holding, pointing out that only one witness testified that he brought his own truck, while three others (Sharp, Brown and Knight) testified that the debtors provided the trucks. The government also points out that while Moore testified that he brought his own equipment to the job, Brown testified that Rasbury provided the chainsaws. Conceding that the testimony is in conflict on this issue, the court once again fails to find that the government produced evidence sufficient to carry its burden of proof.
[23] The court agrees with the government that the workers' investment in tools and personal safety equipment was not a "significant investment" in the workings of debtors' business, given that Rasbury admitted he provided most of the heavy equipment critical to the operation of said business. The bankruptcy court was incorrect in its application of the legal standards relevant to this issue; the evidence does not show that the workers had a "significant investment" in the debtors' business.
[24] The government argues that the bankruptcy court applied the legal standard incorrectly in concluding that the workers stood to realize the type of "profit or loss" generally associated with independent contractor status. According to the government, payment by the ton is simply not the equivalent of realizing the requisite profit or loss, and the facts fail to show that debtors' workers were "subject to a real risk of economic loss due to significant investments or a bona fide liability for expenses." The court cannot agree. The facts here are similar to those found in the E.C. Jones 1978 WL 1245 case, wherein a tree cutter working for the debtor was determined to be an independent contractor rather than an employee for tax purposes. In making this determination, the court noted that the cutter "had both the opportunity for profit and loss . . . the lower a tree cutter could hold his costs, the higher his profit. Such profit clearly depended on [the cutter's] skill and entrepreneurship." E.C. Jones, 79-1 U.S.T.C., 1978 WL 1245.
[25] The government argues that "industry custom" is only relevant in the discussion of the applicability of Section 530, not in the discussion of the common law. Numerous cases, however, have utilized industry custom as an important factor in determining worker classification. See E.C. Jones v. United States, 79-1 U.S.T.C., 1978 W.L. 1245 (E.D.Tex.1978) (wherein the court found it was "the custom within the logging industry for tree cutters to perform their services as independent contractors rather than employees"); Jobbers Warehouse Company v. United States, 78-1 U.S.T.C. para. 9359, 1977 W.L. 1332 (D.S.D.1977) (jury instructed "that another factor to consider is the custom in the trade or industry . . . in arriving at a finding of whether an employer-employee relationship existed in this case"); Moore v. United States, 68-2 U.S.T.C. para. 9661 (E.D.Tex.1968). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1874019/ | 408 F. Supp. 717 (1976)
In re CO-BUILD COMPANIES, INC., a/k/a "West Indies Enterprises, Inc.," Debtor.
Richard I. RUBIN, Receiver of Co-Build Companies, Inc., a/k/a "West Indies Enterprises, Inc.," et al.
v.
VIRGIN ISLANDS REFINERY CORPORATION.
Bankruptcy No. 75-287.
United States District Court, E. D. Pennsylvania.
January 19, 1976.
*718 *719 Stuart H. Savett, Philadelphia, Pa., for plaintiffs.
MEMORANDUM AND ORDER
BECHTLE, District Judge.
This action is here on appeal, pursuant to § 39(c) of the Bankruptcy Act, 11 U.S.C. § 67(c), from a temporary restraining order entered by the bankruptcy court on April 3, 1975, and from stay orders entered on April 9, 1975, and April 16, 1975. The appeal is primarily concerned with the power of the bankruptcy court to exercise its summary jurisdiction.
On April 10, 1974, Co-Build Companies, Inc. ("Co-Build"), Warren Trafton and Rodgers Bressi entered into two contracts with appellant Virgin Islands Refinery Corporation ("VIRCO"), whereby VIRCO agreed to purchase certain tracts of real estate located in St. Croix, United States Virgin Islands. For reasons that are not entirely clear from the record, VIRCO never purchased the real estate. Co-Build, Trafton and Bressi then filed a complaint against VIRCO seeking specific performance of the contracts in the United States District Court for the Virgin Islands, Division of St. Croix ("Virgin Islands Action"). VIRCO filed an answer alleging that Co-Build had breached the contracts and counterclaimed to recover advance payments it had made pursuant to the agreements. In addition, VIRCO filed various discovery requests which are presently the subjects of motions to compel.
On February 18, 1975, Co-Build filed with the bankruptcy court for the Eastern District of Pennsylvania a Petition for Arrangement under Chapter XI of the Bankruptcy Act. 11 U.S.C. § 701 et seq. That same day, Richard I. Rubin was appointed as receiver. On March 14, 1975, Rubin, Trafton and Bressi commenced an adversary proceeding against VIRCO pursuant to Chapter XI Rule 1161(a)(1) seeking specific performance of the above-mentioned contracts and an order restraining VIRCO from purchasing certain other properties. The Bankruptcy Judge, without notice to VIRCO, granted the restraining order and preliminarily enjoined it from purchasing those certain other properties.
On April 3, 1975, counsel for VIRCO made a special appearance before the bankruptcy court asking it to lift the March 14 preliminary injunction. At that time, VIRCO also filed a "Motion to Dismiss Complaint" for lack of subject matter jurisdiction and in personam jurisdiction, and a "Motion to Dismiss or Transfer Debtor's Chapter XI Proceedings and Adversary Proceedings Pursuant to Rule 11-61" for want of proper venue. After a hearing, the Bankruptcy Judge vacated the preliminary injunction. That afternoon, counsel for Rubin, Trafton and Bressi appeared again before the Bankruptcy Judge seeking a temporary restraining order to prevent VIRCO from purchasing the same properties that had been the subject of the vacated preliminary injunction. The Bankruptcy Judge granted the motion, apparently basing his decision upon submitted affidavits alleging that, if VIRCO was allowed to purchase other properties, it would be financially unable to perform its alleged contractual obligations as set forth in the complaint filed in the adversary proceedings.
On April 9, 1975, special counsel for the receiver appeared before the Bankruptcy Judge and moved for the entry of an order enjoining VIRCO from proceeding in any manner with the Virgin Islands Action. The motion was granted. On April 16, 1975, upon application by special counsel to the receiver, the Bankruptcy Judge further ordered VIRCO to withdraw its outstanding motion in the Virgin Islands Action to compel answers to interrogatories and to compel production of documents. Said stay orders were to remain in effect until the bankruptcy court determined the issue of jurisdiction raised by VIRCO in its response to the complaint filed by Co-Build in the *720 adversary proceeding. To date, the bankruptcy court has not ruled on that issue. This appeal followed.
The issue presented is whether the bankruptcy court had the power to exercise its summary jurisdiction over the contractual obligation which VIRCO allegedly owes to Co-Build. There is no question that a bankruptcy court in a Chapter XI proceeding has "exclusive jurisdiction of the debtor and his property, wherever located."[1] However, a bankruptcy court may only exercise summary jurisdiction if it can be determined that it has possession, either actual or constructive, of the property in question. "And the test of this jurisdiction is not title in but possession by the bankrupt at the time of the filing of the petition in bankruptcy." Thompson v. Magnolia Petroleum Co., 309 U.S. 478, 481, 60 S. Ct. 628, 630, 84 L. Ed. 876, 880 (1940).[2]
It is apparent that actual possession is not involved in this case. Nevertheless, Co-Build contends that it had actual possession of the real estate involved in the agreements of sale at the time it filed the Petition for Arrangement and, as such, the bankruptcy court had summary jurisdiction over that property. We would agree with this proposition had that real estate been the object of Co-Build's adversary complaint. It was not. Rather, Co-Build's ultimate objective in bringing the suit was to recover money from VIRCO. Essentially, Co-Build's complaint is the equivalent of a bill for specific performance of a contract, i. e., for money allegedly due and owing under two contracts. See In re Avondale Farms Dairy, Inc., 25 F. Supp. 605 (E.D.Pa.1938). This alleged contractual obligation is a chose in action which, by its nature, cannot be in the physical possession of anyone. Therefore, we must determine if Co-Build had constructive possession of the chose in action.[3]
In order to determine whether the bankruptcy court had constructive possession of the alleged debt, a preliminary inquiry must be made into the nature of the dispute to ascertain whether VIRCO's adverse position is substantial or "so insubstantial and obviously insufficient, either in fact or law, as to be plainly without color of merit, and a mere pretense." Harrison v. Chamberlin, 271 U.S. 191, 195, 46 S. Ct. 467, 469, 70 L. Ed. 897, 900 (1926). If the latter, then summary jurisdiction is proper; if the former, the receiver "must resort to a plenary action in a court that has personal jurisdiction over the adverse claimant in order to establish that the property is an asset subject to the jurisdiction of the reorganization or bankruptcy court." In re Lehigh Valley Railroad Company, 458 F.2d 1041, 1044 (3d Cir. 1972).[4]
*721 It is clear from VIRCO's answer and counterclaim filed in the Virgin Islands Action that it disputes Co-Build's right to collect the alleged debt. But it is not clear from the record whether the nature of VIRCO's adverse position is substantial or plainly without color of merit. All that is before this Court is VIRCO's general allegations that Co-Build breached certain conditions contained in the contracts. Had VIRCO set forth the alleged breaches with greater particularity, this Court could finally determine the issue of summary jurisdiction. See Willyerd v. Buildex Company, 463 F.2d 996, 998, 1001-1002 (6th Cir. 1972). Without that particularity, it will be necessary to remand to the bankruptcy court so that it may decide whether VIRCO's adverse claim is in fact substantial. See In re Penn Central Transportation Company, 453 F.2d 520, 523 (3d Cir. 1971) (Seitz, C. J., concurring), cert. denied, 408 U.S. 923, 92 S. Ct. 2493, 33 L. Ed. 2d 334 (1972). If it so finds, then the Bankruptcy Judge should dismiss Co-Build's adversary complaint.
Concerning the April 9 and 16, 1975, stay orders, the Bankruptcy Judge based his rulings upon Chapter XI Rule 11-44(a). That rule states:
A petition filed under Rule 11-6 or 11-7 shall operate as a stay of the commencement or the continuation of any court or other proceeding against the debtor, or the enforcement of any judgment against him, or of any act or the commencement or continuation of any court proceeding to enforce any lien against his property, or of any court proceeding, except a case pending under Chapter X of the Act, for the purpose of the rehabilitation of the debtor or the liquidation of his estate.
Before this rule may be invoked, it is necessary to determine if the alleged debt is the property of Co-Build via the constructive possession analysis. If the bankruptcy court finds VIRCO's claims to be substantial, then it has no power to stay. See Bayview Estates, Inc. v. Bayview Estates Mobile Homeowners Association, 508 F.2d 405, 408 (6th Cir. 1974). Since this analysis was not made prior to the April 9 and 16, 1975, stay orders, they will be vacated.
Similarly, the bankruptcy court did not decide whether it had constructive possession of the alleged debt prior to its entering the April 3, 1975, temporary restraining order. Therefore, it too will be vacated. The Court notes, however, that even if the bankruptcy court was to find on remand that it had constructive possession of the alleged debt, it could not then reinstate the order restraining VIRCO from purchasing other properties. This is because the scope of the constructive possession only allows the bankruptcy court to determine the rights to the alleged debt, i. e., that the debt is an asset of the bankrupt and, therefore, subject to the summary jurisdiction of the bankruptcy court. Such a finding does not then allow the bankruptcy court to go further and enjoin VIRCO from using its funds as it pleases, including the buying of other properties, simply because at some uncertain date in the future it may be more difficult to collect the debt from VIRCO. The bankruptcy court only has jurisdiction over the contractual obligation and not over the source from which it might eventually be satisfied.
Finally, VIRCO asks this Court to transfer the Chapter XI proceedings to the United States District Court for the Virgin Islands pursuant to Chapter XI Rule 11-13 and Bankruptcy Rule 116. Also, assuming that summary jurisdiction exists over the alleged debt, VIRCO asks that the Chapter XI adversary proceeding be transferred to the same district pursuant to Chapter XI Rule 11-61 and Bankruptcy Rule 782. We will not grant VIRCO's first request as such a determination is more properly made by *722 the bankruptcy court.[5] Similarly, VIRCO's second request must await a determination by the bankruptcy court concerning summary jurisdiction. If the bankruptcy court finds that it has summary jurisdiction, then it should take up the question of transferring the Chapter XI adversary proceeding along with the question of transferring the entire Chapter XI proceeding.
An appropriate Order will be entered.
NOTES
[1] Section 311 of the Bankruptcy Act, 11 U.S.C. § 711, provides:
Where not inconsistent with the provisions of this chapter, the court in which the petition is filed shall, for the purposes of this chapter, have exclusive jurisdiction of the debtor and his property, wherever located.
[2] The Court notes that summary jurisdiction in a Chapter XI proceeding may be broader in scope than summary jurisdiction in ordinary bankruptcy. That is, in addition to having summary jurisdiction over property in its actual or constructive possession, a bankruptcy court in a Chapter XI proceeding has summary jurisdiction over all property owned by the debtor, regardless of what party has possession. See In re Copeland, 391 F. Supp. 134, 138-140 (D.Del.1975). Such a difference, however, will not affect the outcome of this appeal because, notwithstanding how the property is ultimately characterized (owned or possessed), if the opposing party substantially disputes the debtor's claim to the property in question, the bankruptcy court may not exercise summary jurisdiction over that property. Id. at 140.
[3] A chose in action may be property of the debtor within the meaning of § 311 of the Bankruptcy Act. 11 U.S.C. § 711. Bayview Estates, Inc. v. Bayview Estates Mobile Homeowners Association, 508 F.2d 405 (6th Cir. 1974). See generally Willyerd v. Buildex Company, 463 F.2d 996 (6th Cir. 1972); In re Penn Central Transportation Company, 453 F.2d 520 (3d Cir. 1971), cert. denied, 408 U.S. 923, 92 S. Ct. 2493, 33 L. Ed. 2d 334 (1972).
[4] Plenary jurisdiction is governed by § 23(b) of the Bankruptcy Act, 11 U.S.C. § 46(b). That section requires that a plenary action be filed in a federal district court where an independent basis of federal jurisdiction exists, unless the defendant consents to jurisdiction, or the case arises under §§ 60, 67 or 70 of the Bankruptcy Act, 11 U.S.C. §§ 96, 107 or 110. It is obvious that none of the exceptions apply in this case. Therefore, if the bankruptcy court does not find that it has summary jurisdiction over the alleged debt, Co-Build's action against VIRCO cannot be brought in the Eastern District of Pennsylvania, as there would be no independent basis of federal jurisdiction such as diversity of the parties or a federal question.
[5] See Advisory Committee's Note, Bankruptcy Rule 116. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1874023/ | 408 F. Supp. 251 (1975)
UNITED STATES of America, Plaintiff,
v.
Anthony Joseph GIACALONE, Defendant.
Crim. No. 5-80852.
United States District Court, E. D. Michigan, S. D.
September 8, 1975.
Robert C. Ozer, Sp. Atty., Detroit Strike Force, U. S. Dept. of Justice, Detroit, Mich., for government.
S. Allen Early, Jr., Detroit, Mich., for defendant.
MEMORANDUM OPINION
RALPH M. FREEMAN, District Judge.
This is a motion filed by the defendant, Anthony J. Giacalone, to dismiss a *252 three-count indictment pursuant to Rule 12(b) of the Federal Rules of Criminal Procedure. The defendant is charged in Counts I and II of the indictment with (1) having caused a "certain check" to be placed in the United States mail, and (2) having received the same check from the United States mail for purposes of executing a scheme and artifice to defraud, both in violation of 18 U.S.C. § 1341. Count III alleges a conspiracy to use the United States mail to execute a scheme to defraud in violation of 18 U.S.C. § 371.
By this motion the defendant has challenged the authority of Special United States Attorney Robert C. Ozer, as the Chief of the Detroit Organized Crime Strike Force of the Department of Justice, to conduct the grand jury proceedings from which the indictment against the defendant issued. The defendant asserts that Mr. Ozer was not properly authorized as an "attorney for the government" within the meaning of 28 U.S.C. § 515 and, therefore, he was not entitled to be present while the grand jury was in session or to receive disclosure of matters before the grand jury under Federal Rule of Criminal Procedure 6(d) and (e). An "attorney for the government" is defined as, inter alia, "an authorized assistant of the Attorney General." F.R. Cr.P. 54(c).
On February 20, 1975, John C. Keeney, Acting Assistant Attorney General, appointed Mr. Ozer as Special United States Attorney by what appears to be a standard form letter. The letter of appointment specifically directed Mr. Ozer to file informations and to conduct in the Eastern District of Michigan and other judicial districts of the United States "any kind of legal proceedings, civil or criminal, including grand jury proceedings . . . which United States Attorneys are authorized to conduct."
Authority for the appointment and the direction it established is found in title 28 U.S.C. § 515. The statute provides:
(a) The Attorney General or any other officer of the Department of Justice, or any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrates, which United States attorneys are authorized by law to conduct, whether or not he is a resident of the district in which the proceeding is brought. (b) Each attorney specifically retained under authority of the Department of Justice shall be commissioned as special assistant to the Attorney General, and shall take the oath required by law. . . .
The defendant initially contended that Mr. Ozer's appointment failed to comply with the statute on the sole ground that he had not taken the Oath of office as required by Section 515(b). To substantiate this allegation, the defendant presented a certification by the clerk of the court dated May 28, 1975 which stated that the court records of this district failed to disclose that an Oath of Office was filed or recorded by a Robert C. Ozer.
In reply, the government presented a photocopy of a certified copy of the original Oath of Office which was apparently subscribed and sworn to by Mr. Ozer on February 27, 1975. The government also presented a certification from the clerk of the court dated August 4, 1975, acknowledging that the original Oath of Office for Mr. Ozer had been misplaced in the court files and that the certified copy of the Oath has now been furnished to the Clerk's office.
At the hearing on this motion, defendant's counsel stated that he was unaware of the existence of the certified copy of Mr. Ozer's original Oath of Office or that the original Oath had been misplaced in the court files. Without pressing this matter further, defendant's counsel sought to raise additional grounds for challenging the authority of Mr. Ozer's appointment as Special United States Attorney. Since these new grounds for dismissal all relate to the *253 initial issue raised by the defendant's motion, this Court took the matter under advisement thereby permitting the defendant to assert the additional grounds raised at the hearing.
In addition to the original ground asserted in support of this motion, the defendant now claims that Mr. Ozer's letter of appointment fails to comply with the statute in two basic respects. First, it is contended that the letter of appointment is too broad because it fails to give specific direction in the grant of authority as required by Title 28, Section 515(a). Second, it is further alleged that the Acting Assistant Attorney General lacks the authority under Title 28, Section 515(a) to appoint a Special United States Attorney.
The defendant's original ground in support of his motion must be decided adversely to him in light of the government's certified document establishing that Mr. Ozer took the Oath of Office on February 27, 1975, a time prior to his involvement with the grand jury in this case. The defendant has neither contradicted nor challenged the authenticity of this document and this Court may, therefore, accept it as secondary evidence that Mr. Ozer has complied with the Oath requirement of 28 U.S.C. § 515(b), Belt v. United States, 73 F.2d 888 (5th Cir., 1934).
Moreover, the mere failure of a Special United States Attorney to file or record an otherwise valid appointment with the district court does not invalidate the appointment nor vitiate the privilege of the Special United States Attorney to be present before the grand jury under Rule 6 of the Federal Rules of Criminal Procedure. It is the authorization and not the filing which authorizes the government attorney to act. May v. United States, 236 F. 495, (8th Cir., 1916); United States v. Morton Salt Company, 216 F. Supp. 250, 256 (Minn.D. C.1962).
The defendant's additional grounds in support of his motion have been decided adversely against him by two appellate circuits in In Re Persico, 522 F.2d 41 (2nd Cir., 1975) and United States v. Wrigley, 520 F.2d 362 (8th Cir., 1975); DiGirlomo v. United States, 520 F.2d 372 (8th Cir., 1975); United States v. Agrusa, 520 F.2d 370 (8th Cir., 1975). All of these cases involved standard form letters of appointment identical in terms to the letter of appointment in this case. The courts in both circuits rejected the same legal and factual contentions raised by the defendant in this case in upholding the validity of the appointments under 28 U.S.C. § 515(a).
In Wrigley the Eighth Circuit held that letters of appointment which stated that Special Attorneys were "specifically [authorized and] directed . . to conduct any kind of legal proceedings . . . which United States Attorneys are authorized to conduct" substantially complied with 28 U.S.C. § 515(a). This holding was based upon a careful reading of the statutory language and a review of the legislative history of the statute. The court concluded that the statute, 28 U.S.C. § 515(a), was not a limitation but was rather a grant of authority that makes the powers of the Attorney General coextensive with his duties. The court further concluded that:
[t]he decision as to when special attorneys were to be employed, however, was left solely to the discretion of the Attorney General. Nothing in the legislative history, and certainly nothing in the statute, evidences a congressional intent to subject the Attorney General's decisions to review. His is the duty to conduct the criminal litigation of the United States. 28 U.S.C. § 516.
In Persico the Second Circuit upheld an identical letter of appointment by relying upon administrative guidelines that establish limitations on the special attorney's authority. The court concluded that the letter of appointment satisfied the "specifically directed" requirement of 28 U.S.C. § 515(a) on the ground that "such a specific direction to an attorney regularly employed on a full-time basis by the Department of Justice need not be embodied in a single written authorization, *254 but may be implied in other writings, guidelines, practices and oral directions transmitted through a chain of command within the Department." The court also cited the Wrigley decision apparently as an alternative rationale for its holding.
The defendant would have this Court disregard the holdings in Wrigley and Persico and instead follow the opposing view as expressed in United States v. Crispino, 392 F. Supp. 764 (S.D.N.Y.1975), and United States v. Dulski, 395 F. Supp. 1259, 17 Cr.L. 2219 (E.D.Wis., 1975). Both cases held that the form letter of appointment was too broad to satisfy the "specifically directed" requirement of 28 U.S.C. § 515(a). Both of these cases, however, were considered and rejected by the Wrigley court. There is no reason to depart from that holding here.
The defendant's assertion that the Acting Assistant Attorney General lacks the authority under the statute to appoint a Special United States Attorney was specifically considered and rejected in United States v. Agrusa, 520 F.2d 370 (8th Cir., 1975), a companion case to Wrigley. There, the court was presented with the question whether the Attorney General can delegate his authority under 28 U.S.C. § 515(a) to subordinate officers of the Department of Justice pursuant to 28 U.S.C. § 510. Section 510 of the United States Code provides:
The Attorney General may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General.
The court held that 28 U.S.C. § 510 gives the Attorney General the right to delegate any of his authority to any officer or employee of the Department of Justice, including the Acting Assistant Attorney General John C. Keeney. The court stated:
. . . Nothing in 28 U.S.C. § 515(a) or its legislative history evidences a congressional intent to limit the delegation authority of the Attorney General under 28 U.S.C. § 510. The delegation here to Assistant Attorney General Henry C. Petersen and Acting Assistant Attorney General John C. Keeney was in all respects proper.
The defendant has apparently cited the decision by the Honorable Cornelia Kennedy of this District in United States v. Aquino, 338 F. Supp. 1080 (E.D. Mich., 1972) to support his contention on this matter. That case involved the validity of an order extending a wire tap authorization issued by the Executive Assistant Attorney General. The court held that the wire tap authorization was invalid because it was not specifically authorized by either the Attorney General or the Assistant Attorney General as required by 18 U.S.C. § 2516. This holding was based on the conclusion that 18 U.S.C. § 2516 was a specific congressional limitation on the right of the Attorney General to delegate his authority under 28 U.S.C. § 510. Accord, United States v. Giordano, 416 U.S. 505, 94 S. Ct. 1820, 40 L. Ed. 2d 341 (1974). There was no mention in Aquino whatsoever of 28 U.S.C. § 515(a) which is involved in this case.
The Aquino decision is clearly distinguishable from what is involved here. 28 U.S.C. § 515(a), unlike 18 U.S.C. § 2516, is a grant of authority to the Attorney General and not a limitation. United States v. Wrigley, 520 F.2d 370 (8th Cir., 1975). Thus there is no basis for concluding that the language of 28 U.S.C. § 515(a) is a limit on the delegation authority of the Attorney General under 28 U.S.C. § 510.
The defendant in his supplemental brief in support of this motion has also requested that there be held a special hearing to determine whether there has been a full and complete compliance with the intra-departmental guidelines of the Department of Justice governing the interrelationships between Special United States Attorneys of the Strike Force and the United States Attorneys offices. This, however, is a matter of internal concern of the Department of *255 Justice. It must be emphasized that the defendant has not contended that the actions of Special Attorney Ozer have caused him demonstrated prejudice or deprived him of a Constitutional right. The sole question raised by the defendant's motion is whether Congress gave the Attorney General the authority to appoint special attorneys under a broad letter of appointment and whether the authority of appointment can be delegated to an Acting Assistant Attorney General. This Court has accepted the conclusion reached in the Wrigley case that the decision as to when special attorneys are to be employed was left solely to the discretion of the Attorney General and that this authority may be delegated to an Acting Assistant Attorney General.
For all the foregoing reasons, the motion to dismiss is denied.
An appropriate order may be submitted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3047304/ | Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
2-4-2009
Liu v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 07-3346
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Recommended Citation
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-3346
YING LIU
a/k/a HONG YING LIN,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES,
Respondent
On Petition for Review of a Decision and Order of the
Board of Immigration Appeals
(BIA No. A77-121-691)
Immigration Judge: Alberto J. Riefkohl
Submitted under Third Circuit LAR 34.1(a)
October 28, 2008
BEFORE: SLOVITER and GREENBERG, Circuit Judges,
and IRENAS, District Judge*
(Filed: February 4, 2009)
Gary J. Yerman
Yerman & Associates
401 Broadway
Suite 1210
New York, NY 10013-0000
Attorneys for Petitioner
Jeffrey S. Bucholtz
Acting Assistant Attorney General
U.S. Department of Justice
Civil Division
Alison Marie Igoe
Senior Litigation Counsel
Office of Immigration Litigation
Edward J. Duffy
Paul F. Stone
United States Department of Justice
Office of Immigration Litigation
*The Honorable Joseph Irenas, Senior Judge of the United
States District Court for the District of New Jersey, sitting by
designation.
2
P.O. Box 878
Ben Franklin Station
Washington, DC 20044-0000
Attorneys for Respondent
OPINION OF THE COURT
GREENBERG, Circuit Judge.
I. INTRODUCTION
This matter comes on before this Court on a petition for
review brought by Ying Liu of a decision and order entered July
25, 2007, of the Board of Immigration Appeals (“BIA”). Liu is
a citizen of the People’s Republic of China from Fujian
Province who has resided in the United States since 1999 even
though she does not have a lawful presence here and an
immigration judge (“IJ”) ordered her removed.
Liu first attempted to enter this country when she flew to
Atlanta in 1997 but inasmuch as she could not legally enter she
was not admitted and thus she returned to China. Nevertheless,
on June 2, 1999, she again arrived in the United States, this time
at Los Angeles, but airport immigration personnel advised her
that she did not appear to be admissible and did not have the
3
documentation required to authorize her admission.1 At that
time, in a sworn statement, she said that she was a citizen of
China and had been living legally in Brazil. This claim had
documentary support because Liu possessed a Chinese passport
issued on November 19, 1998, by the Chinese Consulate
General in Sao Paulo, Brazil. Moreover, her knowledge of facts
about Brazil further supported her claim to have been in that
country, as she correctly identified Brasilia as its capital and
Portugese as its language. She also stated at Los Angeles that
after she left Brazil she went to Cambodia and Hong Kong
before coming to the United States. At Los Angeles Liu gave
her reason for coming to this country as the economic conditions
in Brazil as she said they were not good and thus she had come
to the United States “[t]o seek job opportunity.” App. at 288.
Of course, this economic explanation for her entry into the
United States could not have been a basis for the granting of
asylum.2
1
In her brief Liu indicates that she “entered the United States
on September 24, 1999,” petitioner’s br. at 2, but this date
appears to be incorrect. For our purposes the difference between
the June 2, 1999, and September 24, 1999, is immaterial as what
is significant is not when she arrived but the fact that she did not
have a lawful basis to come here as well as what she said after
she arrived and in subsequent proceedings.
2
In Li v. Attorney General, 400 F.3d 157, 159 (3d Cir. 2005),
we held “that deliberate imposition of severe economic
disadvantage because of a protected ground may rise to the level
of persecution.” Liu’s claim did not meet the Li criteria for
asylum.
4
In October 1999, the former Immigration and
Naturalization Service initiated removal proceedings against
Liu. At a hearing on those proceedings on August 28, 2000, Liu
dramatically shifted her explanation of why she came to the
United States and in doing so demonstrated her lack of concern
for the truth by testifying that she never had been to Brazil but
had left China by reason of her opposition to its family planning
population control policies. She attempted to explain away her
earlier claim of having resided in Brazil on the basis of it being
a fabrication that a smuggler suggested to her. Thus, she
conveniently changed her reason for coming to this country
from seeking economic improvement, a reason plainly
insufficient to support an asylum claim, to her opposition to
Chinese birth control measures, a reason that might support an
asylum claim. Clearly, she gave a materially false statement
either at the Los Angeles airport when she entered the country
or at her hearing before the IJ in her initial judicial attempt to
obtain asylum.
The IJ understandably rejected Liu’s testimony because
the evidence demonstrated, among other things, that Liu’s
original statement that she had been in Brazil had been accurate,
as her passport had been issued in that country and was stamped
showing her entry into Cambodia.3 Thus, the IJ found that she
was “constantly adjusting her story” and “her oral testimony and
3
Although the IJ did not mention the point, Liu’s testimony
that a smuggler fabricated her alleged Brazil connection is hard
to believe because a smuggler likely would have known that a
desire for economic improvement could not support an asylum
application.
5
her written application for asylum were strictly a concocted and
invented story which had nothing to do with the original facts to
come to this country.” Id. at 200.4 Accordingly, the IJ denied
her application for asylum, withholding of removal, and
protection under the Convention Against Torture. Moreover,
the IJ ordered her removed from the country. Liu appealed from
the IJ’s order to the BIA which affirmed the IJ’s decision
without opinion on November 6, 2002. She did not file a
petition for review of the BIA’s decision and order.
But Liu did not leave the United States, even though she
did not have legal status here and the IJ, affirmed by the BIA,
ordered her removed. Rather, she remained in this country,
married, and had two children. Subsequently, however, she
filed a motion to reopen and a request to file a successive
asylum application with the BIA predicated on her claim that if
removed to China she would be sterilized forcibly on account of
4
Sometimes we have been critical of IJs because they have
questioned the bona fides of an alien’s testimony on the basis of
very slight and unimportant inconsistencies in it. See, e.g.,
Gabuniya v. Attorney General, 463 F.3d 312, 322 (3d Cir.
2006). The situation here does not come within that category
because the fundamental changes in the reasons that Liu gave
for coming to this country and in describing where she
previously had been cannot be attributed to a clarification of her
memory and are highly significant. In this regard, we point out
that her claim that she had been in Brazil but left that country
because of economic conditions was inconsistent with her claim
that she came to the United States to avoid China’s birth control
policies.
6
the birth of her children in this country. Liu filed numerous
documents in support of her application, eleven she listed as
“Personal Evidence” and fourteen she listed as “Background
Information.”
Liu’s application to reopen, however, was not successful
for on July 25, 2007, the BIA issued a comprehensive decision
and order denying her motion. In its decision the BIA pointed
out that both her motion to reopen and her request to file a
successive asylum application were untimely. Furthermore,
both applications depended on Liu demonstrating that there had
been changed conditions or circumstances in China between the
time of her original asylum and removal proceedings and the
filing of the motion to reopen, and that the evidence showing the
changed conditions previously had been unavailable and could
not have been discovered or presented at her earlier hearing.
The BIA concluded that Liu had not made these showings and
thus denied her motion. Moreover, the BIA concluded that Liu
did not demonstrate that she had a reasonable fear of persecution
if she returned to China. Furthermore, the BIA rejected Liu’s
contention that 8 U.S.C. § 1158(a)(2)(D) established an
independent basis for an alien filing an asylum application at
any time without regard for the time limitations otherwise
applicable to motions to reopen. Liu has filed a petition for
review of the July 25, 2007 decision and order, and we now
deny her petition.
On this petition for review Liu makes four principal
points: (1) the BIA erroneously mischaracterized her claims by
finding that she based them on the birth of her children in this
country; (2) the BIA’s conclusion that she had not demonstrated
7
germane changed circumstances in China was wrong; (3) she
was eligible to file a successive asylum application because, in
her view, the material provisions in the Immigration and
Nationality Act (“INA”) “when read together could not be
clearer. Congress expressly stated that an applicant could move
to reopen without concern for time limitations, upon a showing
of changed conditions that were previously unavailable, in order
to apply for asylum.” Petitioner’s br. at 23 (emphasis in
original); and (4) she is eligible for asylum because she has a
reasonable fear of persecution if she returns to China.
II. JURISDICTION AND STANDARDS OF REVIEW
The BIA had jurisdiction under 8 C.F.R. § 1003.2(c) and
we have jurisdiction pursuant to 8 U.S.C. § 1252. There are two
standards of review applicable on this petition. First, we review
the denial of a motion to reopen for an abuse of discretion. See
Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004). Second,
again using a deferential standard of review, we uphold the
BIA’s factual determinations if they are “supported by
reasonable, substantial, and probative evidence on the record
considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478,
481, 112 S. Ct. 812, 815 (1992) (citation and quotation marks
omitted). In applying the second standard, we can reject the
BIA’s factual findings only if “any reasonable adjudicator
would be compelled to conclude to the contrary.” Id.; 8 U.S.C.
§ 1252(b)(4)(B).
8
III. DISCUSSION
We reject all of Liu’s contentions. First, the BIA in
considering Liu’s motion to reopen understood the obvious
point that the birth of Liu’s children in the United States was a
change in her personal circumstances and not a change in
conditions in China. Thus, as we explain below, the question
became, as the BIA correctly recognized, “whether [Liu] has
successfully presented evidence which was previously
unavailable or undiscoverable, that shows a material change in
the coercive population control policy in China since her last
hearing.” App. at 2.
Second, the record fully supports the BIA’s conclusions
that Liu did not demonstrate changed circumstances in China
and would not have a reasonable fear of persecution if she
returned to China. It is clear that under our standard of review
we must uphold these conclusions. In reviewing the BIA’s
findings we, of course, consider our nearly contemporaneous
opinion in Zheng v. Attorney General, 594 F.3d 260 (3d Cir.
2008), and find that the BIA’s decision was consistent with the
standards that we set forth in that case. In Zheng, the BIA did
not consider adequately the materials that the petitioners had
submitted with their applications to reopen, but in this case it
certainly did so.
In this regard we take the unusual step of quoting the
BIA’s conclusions at length as they demonstrate the type of
findings that are sufficient under Zheng:
[Liu] submits her affidavit claiming that upon
9
deportation to China she will likely be targeted
and forcibly sterilized due to the birth of her 2
United States citizen children. She also submits
her father-in-law’s letter dated February 20, 2007,
which says that the [Chinese Population and
Family Planning Law (“PFPL”)] is executed more
strictly in [her] hometown, Changle City, Fujian
Province. He mentions a villager who was forced
to have an abortion because she had already given
birth to a son. He believes that it is highly like
that his daughter will be sterilized by government
officials upon her return. [Liu] also submits
additional background evidence of country
conditions.
Most notably, [Liu] contends that the 2005
and 2006 State Department Country Reports
establish a clear inference that conditions in China
have deteriorated drastically, and the use of
persecutive birth control methods is on the rise.
However upon closer examination, the reports
only indicate that the Chinese government
continues its population control policy and that
enforcement varies by province. Contrary to what
[Liu] argues, the 2006 Country Report does not
confirm for the first time that incidents of forced
sterilization occur in Fujian Province. It says that
Fujian officials ‘reportedly’ sterilized women.
[Liu] also presents the Congressional Executive
Commission on China’s 2006 Annual Report,
which describes new measures that the Chinese
10
government is taking to ensure enforcement of the
PFPL. Additionally, [Liu] contends that a March
14, 2006, letter from the ‘Administrative Office of
the National Population and Family Planning
Committee’ regarding the legal applicability and
use of laws toward the reproductive behavior of
Chinese citizens residing abroad shows that she
would be sterilized upon her return. However, as
addressed in the recent precedent[ial] decision,
Matter of J-W-S-, 24 I & N Dec. 185, 190-93
(BIA 2007), the Population and Family Planning
Commission of Fujian Province, in response to an
inquiry by the U.S. Consulate General in
Guangzhou, stated in an October 2006 letter that
children born abroad, if not registered as
permanent residents of China, are not considered
against the number of children allowed under
China’s family planning laws. Bureau of
Democracy Human Rights, and Labor, U.S. Dep’t
of State, China: Profile of Asylum Claims and
Conditions 30 (May 2007) [hereinafter 2007
Profile]. According to the 2007 Profile ‘a person
born in the United States to Chinese parents who
enters China on a U.S. passport . . . will be regard
as a U.S. citizen.’ By national regulation,
children born overseas are ‘not . . . counted’ for
birth planning purposes when the parents return to
China. In Matter of J-W-S- this Board concluded
that the Chinese government does not have a
national policy of requiring forced sterilization of
a parent who returns with a second child born
11
outside of China. The background evidence
presented in the instant case does not alter this
assessment.
App. at 2-3 (certain internal citations omitted).5 After setting
out the foregoing findings, the BIA concluded in a finding our
standard of review requires us to accept, that “[n]one of the
evidence presented states or infers that overseas Chinese
returnees are subject to forced sterilization after giving birth to
2 children abroad.” Id. at 3.
Ordinarily, as we pointed out in Zheng:
[A] motion to reopen must be filed no later than
90 days after the date on which the final
administrative decision was rendered in the
proceeding sought to be reopened [but] the 90-day
limitation does not apply if the movant seeks
reopening based on changed circumstances
arising in the country of nationality or in the
country to which deportation has been ordered, if
such evidence is material and was not available
and could not have been discovered or presented
5
It is significant that Chinese officials correctly understand
that children born in the United States to Chinese parents are
United States citizens. After all, it seems entirely logical that
the Chinese officials would exclude United States citizens when
considering its birth control policies, as such persons are likely
to live in this country, at least if not registered as permanent
residents of China.
12
at the previous hearing.
Zheng, 549 F.3d at 265 (internal quotation marks and citations
omitted). Liu, however, filed more than a motion to reopen as
she included a successive application for asylum in her motion
to reopen when filing that motion; the two procedures are not
identical. In this regard Liu correctly concedes, as the BIA held,
that after completion of removal proceedings an alien must file
an asylum application in conjunction with a motion to reopen.
Nevertheless, though her argument is somewhat ambiguous on
the point, she may be contending that an alien is able to file a
successive asylum application predicated on a change in
personal circumstances, in her case the birth of her children in
this country, even though she does not demonstrate a change in
country conditions justifying a motion to reopen.
In considering Liu’s possible argument based on a
change in personal circumstances, we are aware that 8 U.S.C. §
1158(a)(2)(D) permits an untimely or successive asylum
application based on “the existence of changed circumstances
which materially affect” the alien’s eligibility for asylum.
Furthermore, we acknowledge that these circumstances arguably
could include the birth of children born in this country, as the
term “changed circumstances” in 8 U.S.C. § 1158(a)(2)(D) is
not limited expressly to circumstances in the alien’s country of
nationality. But we are of the view that this provision must be
applied in harmony with 8 U.S.C. § 1229a(c)(7)(C) and the
regulations at 8 C.F.R. §§ 1003.2(c)(2), 1003.2(c)(3)(ii), and
1003.23(b). Accordingly, we conclude that 8 U.S.C §
1158(a)(2)(D) allows successive asylum applications only
within the 90-day reopening period for orders denying asylum
13
unless the alien can show changed country conditions on the
required accompanying motion to reopen.
It seems plain that 8 U.S.C. § 1229a supports the
conclusion that the BIA reached as any other construction of the
INA would frustrate Congress’s intention in establishing a 90-
day reopening period subject to a changed country conditions
exception. Furthermore, our result is consistent with the intent
Congress expressed in 8 U.S.C. § 1158(a)(2)(C) to preclude an
alien from filing an asylum application if she “previously
applied for asylum and had such application denied.” Thus, we
are satisfied that in considering an application to file a
successive asylum application the BIA should apply 8 U.S.C. §
1229a(c)(7)(C)(ii), which provides that the 90-day time limit on
motions to reopen does not apply if the motion is to apply for
asylum or withholding of removal based on “changed country
conditions arising in the country of nationality.” In this case,
Liu did not meet that exacting standard, and thus the BIA
correctly denied her application.
We have not overlooked the possibility that under the
BIA’s construction of the INA an alien applying initially for
asylum beyond the ordinary one-year limitation in 8 U.S.C. §
1158(a)(2)(B) after her arrival in the United States might be
successful in her application without showing a change in
country conditions after the time of her entry, whereas an alien
otherwise similarly situated would not be successful if she
previously unsuccessfully had applied for asylum. Nevertheless,
if we reached a contrary conclusion and did not subject an alien
citing changed personal circumstances in seeking asylum to the
numerical and time limitations on motions to reopen, as well
14
requiring that regardless of her changed personal circumstances
she demonstrates that there are changed country conditions, we
would not honor Congress’s purpose in the INA to avoid abuse
of the system. See Joaquin-Porras v. Gonzales, 435 F.3d 172,
179-80 (2d Cir. 2006).
We observe in reaching our conclusions we have much
company because the Court of Appeals for the Second Circuit
within the last year squarely held that “an alien subject to a final
order of removal who files a successive asylum application
based only on changed personal circumstances must also file a
motion to reopen based on changed country conditions pursuant
to 8 C.F.R. § 1003.2(c)(3)(ii), when the ninety-day deadline has
passed for such a motion.” Jin v. Mukasey, 538 F.3d 143, 147
(2d Cir. 2008). Jin, in turn, cited opinions of four other courts
of appeals reaching the same result. Id. at 152.6 We also point
out that our result is consistent with the result the BIA
consistently reaches as it has held that a “successive asylum
application cannot be considered . . . except as part of a timely
and properly filed motion to reopen or one that claims that the
late motion is excused because of changed country conditions.”
In re C-W-L- 24 I. & N. Dec. 346, 354 (B.I.A. 2007).
It is also significant that if we did not reach our result, we
would permit an alien who had failed to obtain asylum but
nevertheless illegally remained in the country following an order
of removal to extend her time for applying for asylum through
her control of her personal circumstances by marrying and
6
One of those opinions is a not precedential opinion in our
Court on which we do not rely.
15
having children, even though it is clear that Congress intended
to limit successive applications for asylum. On this point, we
agree with the Court of Appeals for the Second Circuit, which
in Wang v. BIA, 437 F.3d 270, 274 (2d Cir. 2006), stated that
such “gaming of the system in an effort to avoid deportation is
not tolerated by the existing regulatory scheme.” Furthermore,
if we detached a changed personal circumstance application for
asylum after an initial rejection of an asylum claim from the
limitations on motions to reopen, we in effect would circumvent
8 U.S.C. § 1229a(c)(7)(A), which provides that “[a]n alien may
file one motion to reopen proceedings under this section.”
In sum, we defer to the BIA’s construction of the INA in
which it concluded that after completion of removal proceedings
an alien must file an asylum application in conjunction with a
motion to reopen and must meet the time and numerical
limitations on motions to reopen. We think it is clear that the
BIA’s construction of the INA is owed deference under
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837, 104 S. Ct. 2778 (1984). See Briseno-Flores v.
Attorney General, 492 F.3d 226, 228 (3d Cir. 2007). Moreover,
the BIA’s construction of the INA seems to us to be based on a
permissible reading of the statute. See INS v. Aguirre-Aguirre,
526 U.S. 415, 424, 119 S. Ct. 1439, 1445 (1999).
For the foregoing reasons the petition for review of the
decision and order of the BIA entered July 25, 2007, will be
denied.
16 | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/4005477/ | This is an action of trespass on the case brought in the circuit court of Marion County in 1919 for damages to a vacant lot in the city of Fairmont. A demurrer to the amended declaration was sustained by the lower court in Jan. 1925. The court then certified here the question of the sufficiency of the amended declaration. *Page 370
The case as pleaded is as follows. In 1914 the lot in question was owned jointly by Harry Shaw, E. C. Martin, Lora M. Robinson, Lizzie M. Robinson, and Lucy O. Powell. In 1915 the defendant built a bridge along a street in front of, and across another street near, the lot. The bridge was so constructed that it shut off the light and obstructed the view from the lot, and also "acts and same is a sort of sounding board, and by reason whereof the noise of the engines, cars and trains operated and passing over the same, and teams, wagons and vehicles passing under the same of said streets renders it practically impossible to carry on, or to hear an ordinary conversation at any place on plaintiff's premises while trains, engines and cars are being operated over said bridge and railroad and while vehicular traffic is passing thereunder, thereby rendering said premises unsuitable for business or for dwelling, or for business sites or home sites and thereby greatly injuring and damaging said premises." Lucy O. Powell sold her undivided interest in the lot in 1916, together with her right to damages by reason of the alleged trespass, to C. D. Robinson. Since the institution of this suit, in 1921, E. C. Martin has also sold his undivided interest and right of damages for the trespass on the lot to C. D. Robinson. Lizzie Robinson died in 1918, leaving to survive her C. D. Robinson, her husband, and A. F. Robinson, R. M. Robinson and Helen R. Robinson Stoetzer, her only children and heirs at law.
The plaintiffs in the amended declaration are Harry Shaw, E. C. Martin, Lora M. Robinson, C. D. Robinson (husband of Lizzie Robinson) and A. F. Robinson, Robt. M. Robinson and Helen R. Robinson Stoetzer (children of Lizzie Robinson.)
The demurrer to the declaration was sustained on the theory of misjoinder of parties as plaintiffs. Our attention is directed to the fact that C. D. Robinson holds a life estate in the interest of his deceased wife in the lot, and that her children are remainder-men. Jordan v. City of Benwood, 42 W. Va. 312, and Yeager v. Town of Fairmont, 43 W. Va. 259, are relied upon by demurrant. In the Jordan case Judge BRANNON shows very clearly that the interests of the tenant *Page 371
and the remainder-men respectively, in damages for a trespass, are entirely separate.
"If these be a tenant for years or life in actual possession, he can sue for any trespass affecting his immediate residential interests; and the reversioner or remainder-men, if the act does a permanent injury to the inheritance, may sue as to that; but they are separate claims. The particular tenant recovers for damage only to present enjoyment, covering his entire term, and the remainder-man or reversioner only for damage to the remainder or reversion. Suth. Dam. 1033; Sedg. Meas. Dam. par. 74; 1 Add. Torts. 407-9; Dry Dock Co. v. Armstrong, 17 F. 216.
Jordan v. Benwood, supra.
In the Yeager case, a tenant and a remainder-man sought jointly to recover damages for injury to a lot. A demurrer to the declaration was sustained. The ruling was based on the Jordan case, and held that the claims of the tenant and remainder-man could not be prosecuted jointly.
Curry v. Ry. Co., 87 W. Va. 548, contains a dictum which is not in accord with the Jordan and the Yeager cases. We find a like departure from those decisions in McIntire v. Coal Co.118 Pa. 108. The argument of the dictum in the Curry case is plausible, and I would be impressed by it if the proposition were a new one. But it is in conflict with one of the cardinal rules of pleading relative to actions ex delicto which has come to us from the Common Law and the soundness of which is, according to Hogg, "self-evident". "Where two or more persons have a separate interest and sustain a separate damage, they must sue separately and cannot join even though their several injuries were caused by the same act." 15 Ency. Pl. and Pr. 541. Accord: Hogg's Pl. and Forms, 36 A. (y); Chitty on Pl. 96 (16 Am. Ed.). As pointed out by Judge BRANNON in the Jordan case, the injury to a tenant is one that affects his enjoyment of the tenancy, and is not necessarily permanent. The injury for which a remainder-man may recover is permanent and is one which *Page 372
lessens the market value of the property. Neither the tenant nor the remainder-man has any claim to the damages which the other may recover. Their interests are several and their damages distinct. Therefore under the established rule of pleading which this court should not disregard, the life tenant and the remainder-men may not sue jointly for the injury alleged herein. "Joint owners of property whether it be real or personal must generally join in actions for damages for a trespass thereon. But in an action by a person in and entitled to possession, the reversioner or remainder-men should not be joined." 24 Standard Ency. Pro. 941-2. Little Rock etc. Co. v.Dyer, 35 Ark. 360. In this action, however, neither the life tenant nor the remainder-men can join with the other plaintiffs. The trespass for which redress is sought occurred before the death of Lizzie Robinson. Under the Common Law, when one co-tenant died, after a cause of action had accrued, the cause survived to the remaining co-tenants. See Freeman on Co-Tenancy and Partition, pars. 362 and 363. In par. 364 Mr. Freeman summarizes as follows:
"In the two preceeding sections, we have considered the effect of the death of one co-tenant after the accruing of a joint cause of action and before the commencement of a suit thereon; and have found the rule to be universal that all joint causes of action survive to the last survivor, irrespective of the nature of the cotenancy, —"
Accord: Dicey on Parties to Actions Rule 82, par. 402; Shipman's Com. Law Pl. point 2, p. 138.
"Though extremely technical, the rule as to survivorship as applied to cases of this kind is so thoroughly embedded in the proceedural laws of the Virginias, as not to warrant departure therefrom".
Pollock v. Herman, 84 W. Va. 427.
This rule is not changed by Sec. 2 of Ch. 127 of the Code. That section has been held to apply only in case of a sole *Page 373
plaintiff or defendant. Henning v. Farnsworth, 41 W. Va. 548.
The right to sue for a trespass to real property, passes by statute to a personal representative. Demurrant contends that the personal representative of Lizzie Robinson should therefore be made a party to this action. But since the ownership of the lot was a cotenancy, her personal representative can not be joined as a party plaintiff with the survivors. Rowe v. PulpCo., 42 W. Va. 551; Israel v. Jones, 97 W. Va. 173, Chitty on Pl. 100.
The demurrant also challenges the right of C. D. Robinson to sue in his own name as the assignee of Lucy Powell and E. C. Martin. In Tolsom v. Elwes, 1 Leigh 436, the history of the procedure in regard to the assignment of rights of action is thus briefly traced. "At Common Law, we know, choses in action
were not assignable nor could courts of law formerly take any notice of the equitable, where it was distinct from the legal rights. Courts of equity, however, held those assignments good and enforced them, and in later time courts of law have so far relaxed as in some instances to notice the equitable right. * * * But the courts of law have never gone so far as to suffer the assignee to institute a suit in his own name." Carr, Judge, who wrote this opinion explained that he was not speaking of commercial paper made assignable by the statute of Anne. This statute is practically the same as Sec. 14, Ch. 99 of our Code, which authorizes the assignment of "bond, note, account, or writing not negotiable." During the century which has elapsed since the decision in Tolsom v. Elwes, we find little change in the procedure by which an assignee may recover in an action exdelicto. The rule has been the subject of criticism, but it has been closely followed by the majority of courts. 5 C. J. 986, par. 189 and note 11, page 987. In Clark v.Hogeman 13 W. Va. 718, and in Bently v. Standard Fire Ins. Co.,40 W. Va. 729, this court adhered strictly to the Common Law, and held that the assignment of a chose in action vested in the assignee only the equitable title, the legal title remaining in the assignor. In the opinion in the Bently case, Judge BRANNON terms this an "unreasonable *Page 374
rule", but admits that it is "firmly settled". The courts that follow the Common Law practice have proceeded on the theory that the assignor held the legal title as a kind of trustee for the assignee, and therefore if the assignor failed to act for the assignee, the assignee had the right to use the name of the assignor as plaintiff in an action to recover. This view as stated in 3 Standard Ency. of Pro. 89, par. 2, is:
"In following the rule of equity and making assignments effective, courts of law do not consider the chose itself as capable of assignment. The legal title is regarded as still remaining in the assignor; the assignment, however, is treated as in the nature of a declaration of a trust by the assignor for the benefit of the assignee, and confers upon the assignee an authority to bring an action at law in the name of the assignor, the holder of the legal title, and reduce the chose to possession."
Accord: 2 Rawle C. L. 638 par. 48; 5 C. J. 981 pars. 176 and 177; 17 Am. and Eng. Ency. of Law, 508 (1 Ed.); Dicy on Parties, 82-3.
Consequently we must conclude that the children of Lizzie Robinson are not proper parties to this action, and that C. D. Robinson is not a proper party either as tenant for life, or as assignee of Lucy Powell and E. C. Martin. C. D. Robinson may, however, use the names of his assignors for the purpose of having them join with Harry Shaw and Lora Robinson as plaintiffs. Or Harry Shaw and Lora Robinson may, as surviving co-tenants, maintain this action for the benefit of themselves and C. D. Robinson and the children of Lizzie Robinson. If a recovery is made by those plaintiffs who have the right to maintain this action, such recovery "inures to the benefit of all the co-tenants therein, respectively, and an accounting therefor may be compelled". 38 Cyc. 119-120.
It is apparent that this opinion is based solely on the rules of Common Law pleading. Statutory systems of pleading usually if not invariably require all of the real parties in interest to be before the court. Equity procedure in this state *Page 375
so requires. The dictum in Curry v. Ry. Co. supra, indicates the trend of modern judicial thought when divorced from Common Law restrictions. But the Constitution of this state declares that the Common Law shall continue to be the law until altered or repealed by the Legislature. Therefore this court must uphold and require compliance with Common Law pleading until it is so changed. It should not be modified or disregarded because of supposed expediency or for other personal opinion of the court.
The ruling of the circuit court on the demurrer is therefore affirmed.
Ruling affirmed. | 01-03-2023 | 07-06-2016 |