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315 A.2d 483 (1974) SEAWAY SHOPPING CENTER CORPORATION v. The GRAND UNION STORES, INC., OF VERMONT, and the Grand Union Company. No. 3-73. Supreme Court of Vermont, Chittenden. February 5, 1974. *484 James D. Foley, of Yandell, Page & Archer, Burlington, for plaintiff. Wilson, Curtis, Bryan, Quinn & Jenkins, Burlington, for defendants. Before SHANGRAW, C. J., and BARNEY, SMITH, KEYSER and DALEY, JJ. SHANGRAW, Chief Justice. This is an appeal from a judgment entered in a civil action tried by the Chittenden County Court on December 6, 1972. Jury trial was waived and following a hearing by the court plaintiff was awarded damages in the amount of $14,839.05 and its costs. A judgment for this amount followed, and the defendants have appealed therefrom. Plaintiff, a Vermont corporation, owns and operates the Seaway Shopping Center in South Burlington, Vermont. Its principal stockholder and officer is Thomas Farrell, who developed the shopping center. The Grand Union Stores, Inc., of Vermont, is also a Vermont corporation, and a wholly owned subsidiary of The Grand Union Company. The Grand Union company is a Delaware corporation with its principal office in East Paterson, New Jersey. The Grand Union Company is a guarantor of the performance of its subsidiary company under the lease here in question. For the purposes of this opinion, Seaway Shopping Center is hereinafter referred to as "Seaway", The Grand Union Stores, Inc., of Vermont, as "Tenant", and The Grand Union Company as "Parent Company." The original lease, here in question, was between Thomas Farrell and the above Tenant. The Parent Company was guarantor of the Tenant. The lease was subsequently assigned by Farrell to Seaway. Its terms are not in dispute. Without reciting verbatim all of the pertinent provisions of the lease, the court determined under finding No. 5 that it provided, in substance, as follows: (a) That the Landlord would maintain the surface of the parking area, rights of way, curb-cuts, approaches and sidewalks in good condition. (b) That if the Landlord failed to carry out any of its obligations, the Tenant might, after reasonable notice or without notice if in the Tenant's judgment an emergency should exist, perform the obligation at the expense of the Landlord. (c) That if Tenant did so, it would be entitled to reimbursement from the Landlord, and could apply the claim against subsequent rent installments. (d) That the Landlord should also mark and reline the parking areas as often as necessary. (e) That notices or demands under the lease should be given by each party to the other by mail, to the addresses therein set forth. The trial court continued with the following findings. 6. It is undisputed, and we find, that the Tenant in July 1971, caused a substantial part of the parking area adjacent to its store premises to be repaired and repaved, and subsequently remarked. The cost of the paving was $14,050.00, and of the remarking $903.15, both costs being reasonable. *485 7. It is also conceded, and found, that Tenant made withholdings from its rent as follows: January 1, 1972 $2,500.00 February 1, 1972 2,500.00 March 1, 1972 2,500.00 April 1, 1972 2,500.00 May 1, 1972 2,500.00 June 1, 1972 2,453.15 8. It is virtually, if not actually, conceded, and we find, that the remarking in question was required and necessary, whether or not the repaving was, and we find that the deduction of $903.15 by Tenant was justified and is an allowable reduction of plaintiff's claim. 9. Since the rental obligation itself is not in question, the central issue here involved is the condition of the parking lot before the repaving was done, i. e. whether it was in "good condition" as required by the lease. We find that it was, and that the repaving by the Tenant was not justified. Additionally, no notice of the repaving was given to the Landlord, the notice which was given referring only to "repair." (Def.Ex. T) 10. Over the course of six years prior to the repaving, Tenant had from time to time notified Seaway of the recurrent need for repairs to the lot, and Seaway had made them, presumably to the satisfaction of Tenant, since the non-performance clause had not previously been invoked. 11. When repairs were needed, Seaway had an arrangement with one Armand Pare and one Rene Barsalou to make them, using their equipment and hot mix (or cold patch in winter) purchased from local suppliers. 12. The cost of these repairs to Seaway were as follows: 1966, $760.65; 1967, $20.15; 1968, $670.09; 1969, $232.01; 1970, $469.91; and 1971, $1,835.91. The total is $3,968.72, almost half of which was just before the repaving in question. 13. Mr. Farrell testified that the repaving was done by Tenant, not because of necessity, but because it desired to give the premises a "new look" and to upgrade the store to meet growing competition. We so find, for the following reasons: (a) By letter of May 5, 1970, the parent company advised Seaway (Def.Ex.L) that the parking area was badly in need of repair, "creating a very shabby appearance in comparison to the other Shopping Centers in the area." (b) It then, in August, 1970, proceeded to get an estimate of the cost of repaving from L. M. Pike & Son, Inc., (Pl.Ex. 2, p. 4) even though it did not proceed with the work. (c) On June 25, 1971, in a telephone conversation with Farrell, Mr. Hayes, Vice-president for the real estate of the parent company (which handled all these matters completely without reference to its subsidiary), asked Seaway to pay half of the cost of repaving, to upgrade the store to meet competition. Mr. Farrell refused, advising Hayes that substantial repairs had already been made and more were in process. (d) At that time, a second quotation for repaving had already been obtained by defendants, and another was in the process. (e) We are unable to find, and defendants' evidence could not make clear, who made the decision to repave. Notice was mailed July 1, 1971, although it did not specify that repaving was to be done, referring only to repairs. This notice came from Mr. Charles Bailey, assistant maintenance supervisor for the parent company. The following day he accepted the low quote for the work, and it proceeded. (f) When Mr. Bailey gave this notice and accepted the quote, he did *486 not know repairs had been made, was unaware of the then condition of the lot and had had no communication from local officials of the Tenant about the repairs. (g) Mr. Bailey testified he did not know who in the chain of command made the decision to repave. He thought it might have been the "legal department." A representative of the legal department was present through the trial, but did not testify. The vagueness of this whole line of testimony as to individual decisionmaking within the corporate structure tends to reinforce the conclusion that the reasons for repaving were other than as stated in the formal notice. 14. The defendants, although entitled to deduct the sum of $903.15 from the rent, were not entitled to deduct the further sum of $14,050.00. Plaintiff is entitled to recover from defendants that sum, with interest to date in the amount of $789.05, for a total of $14,839.05, plus its taxable costs. In its conclusions the court, in part, stated: No substantial legal questions are here presented. As agreed, by the parties, the main issue involved is one of fact, whether the parking lot in question was in good condition under the terms of the lease when the repaving was done, or in such bad condition, unremedied by the landlord after tenant's request, that repaving was necessary. Strengthened by the information that tenant's responsible officials did not know of, or take into consideration, the substantial repairs which landlord had made, we have concluded that the repaving was not necessary, but was done for purposes of "upgrading" to meet competition, a worthy motive but not the landlord's responsibility under the lease. The issues raised by the defendants on appeal are primarily challenges to the findings of fact made by the trial court which they claim are clearly erroneous. The standard by which such a challenge is tested is stated in V.R.C.P. 52(a) thus: Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses and the weight of the evidence. The above Vermont rule is similar to Rule 52(a) of the Federal Rules of Civil Procedure. Defendants argue that this Court should not follow the long history of Vermont case law, but should adopt a new standard now used by the Federal Courts. It is claimed that under the Federal test, this Court should consider all of the evidence when reviewing findings of fact and not only that evidence which would be most favorable to the prevailing party in order to determine whether or not the findings are "clearly erroneous". The defendants contend that the crucial findings are clearly erroneous. This Court has interpreted the clearly erroneous test to require it to "take the evidence in the light most favorable to the prevailing party, . . . excluding the effect of modifying evidence." Green Mountain Marble Co. v. Highway Board, 130 Vt. 455, 457, 296 A.2d 198, 200 (1972). Our test, as stated in Armstrong v. Hanover Ins. Co., 130 Vt. 182, 185, 289 A.2d 669, 671 (1972), appears as follows: The prescribed law of this state is that findings must stand if there is any credible evidence which fairly and reasonably supports them, and this Court must construe them so as to support the judgment, if possible, and further, that the weight of the evidence, the credibility of the witnesses and the persuasive effect of the testimony is for the sole determination of the trier of fact. This Court thus uses the same interpretation of V.R.C.P. 52(a) as it did *487 under the previous statutory requirement found in 12 V.S.A. § 2385. In essense, the defendants urge that this Court should reconsider the case of Green Mountain Marble Co. v. Highway Board, supra, and follow the Federal practice of looking to the evidence in its entirety on appeal. They cite United States v. United States Gypsum Co., 333 U.S. 364, 394, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948), as a definitive Federal case on the "clearly erroneous" test. That opinion, in part, states: [F]indings of fact in actions tried without a jury "shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.". . . A finding is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. When findings are challenged on appeal, it is the recognized duty of this Court to search such portions of the record as are called to our attention, in order to determine whether or not there is substantial evidence to support them. We must read the evidence in support of the findings if reasonably possible, "when considered as a whole." Little v. Little, 124 Vt. 178, 182, 200 A.2d 276 (1964). In construing Federal Rule 52(a), the Gypsum case, supra, in effect held that a reviewing court should consider the "entire evidence". Under our Vermont Rule 52(a), it was held in the Little case, supra, that the evidence should be "considered as a whole." This leaves very little difference in result between the Federal rule and our case law as applied to our Vermont rule, which we now reaffirm. We are not inclined to give a different meaning to V.R.C.P. 52(a) than has been previously enunciated by this Court in our case law. The central issue is whether the parking lot in question was in "good condition" after it had been repaired by Seaway in June, 1971. It is the contention of the Tenant that the court's finding that the lot was in "good condition" prior to repaving is clearly erroneous and that Seaway's evidence as to the good condition of the parking lot after repairs had been made by Seaway was inclusive and equivocal. A number of witnesses were called by the Tenant who testified that prior to the repairs there were depressions, ruts, cracks, holes and soft spots in the parking lot and that the repairs made by Seaway in 1971 at a cost of $1,835.51 were faulty. Also, notwithstanding the repairs, there were six or seven clay spots which, at time of repaving, had to be dug out at a maximum cost of $700. The tenant introduced other evidence that following the repairs made by Seaway the general condition of the lot was poor and needed resurfacing. To the contrary, Seaway's evidence in the transcript reveals that the repairs made in June, 1971, were done in a good and workmanlike manner, that resurfacing was not necessary, and that following such repairs the parking lot was in good condition. Thus, the controversial issue relating to the condition of the parking lot at the time of repaving was left to the court for resolution. Finding No. 9 that the parking lot was in good condition prior to repaving and that the repaving by the Tenant was not justified is amply supported by the evidence. The Tenant next claims that the trial court's findings of fact that the repaving was done by tenant, not because of necessity, but because it desired to give the premises a "new look" and to upgrade the store to meet growing competition is clearly erroneous. On the contrary, Seaway urges that the trial court's finding of fact, No. 13, determining that the repaving was done *488 by the Tenant in its desire to give the premises a "new look" is substantially supported by the record. The question as to whether or not the Tenant was interested in obtaining a "new look" is not pertinent to the issue as to whether or not the parking lot was in "good condition" at the time of the repaving job done by the Tenant. By finding No. 13 the court determined that ". . . the repaving was done by Tenant, not because of necessity, but because it desired to give the premises a `new look' and to upgrade the store to meet growing competition. . . ." This finding is reinforced by subparagraphs thereof. In addition to the foregoing finding, and in support thereof, we note the following testimony of the witness, Charles J. Bailey, an employee of the Tenant. Q. It's not necessary to have an even blacktop surface, is it? A. It would be nicer than holes, sir. Having a good parking lot is good advertising. We find no basis in the record for disturbing finding No. 13. We are bound to confirm this result unless, as a matter of law, it is unsupportable. Villeneuve v. Commissioner of Taxes, 128 Vt. 356, 357, 264 A.2d 774 (1970) citing Forslund v. Cookman, 125 Vt. 112, 114, 211 A.2d 190 (1965). The prescribed law of this jurisdiction is that findings must stand if there is any credible evidence which fairly and reasonably supports them. Largess v. Tatem, 130 Vt. 271, 280, 291 A.2d 398 (1972). The issue was raised below as to whether, under the terms of the lease, the Tenant gave "reasonable notice" in writing to Seaway that the parking lot needed repaving before the Tenant proceeded to do so. This became a controverted issue. The trial court found that the notice given referred only to "repair." As stated in the findings and conclusions, the court below determined that the parking lot was in good condition by reason of the repairs made by Seaway and that the repaving done shortly thereafter by the Tenant was not necessary. This is the critical and controlling issue upon which the judgment is predicated. Therefor, the above referred to notice, or lack thereof, becomes immaterial in disposing of this appeal, and requires no consideration by this Court. Judgment affirmed.
{ "pile_set_name": "FreeLaw" }
United States Court of Appeals FOR THE EIGHTH CIRCUIT __________ No. 02-3035 __________ Dan McCarthy, as Parent and as Next * Friend of his Minor Daughter, * * Plaintiff - Appellant, * * Appeal from the United States v. * District Court for the Western * District of Arkansas. Ozark School District; Faye Boozman, * in his Official Capacity as Director, * State of Arkansas Department of Health; * John Doe, 1 through 20, in their Official * Capacities as Agents, Servants, * Employees or Officials of the State of * Arkansas, Department of Health, * * Defendants - Appellees. * ___________ No. 02-3094 ___________ Shannon Law, as Parent and Legal * Guardian of her Minor Children Joey * Law, Rob Law, and Claire Law; * * Plaintiff, * * Susan Brock, as Parent and Legal * Guardian of her Minor Children Harley * Brock, Mason Brock, Kathrine Brock * and Michael Jarrell, * * Plaintiff - Appellant, * * Appeal from the United States v. * District Court for the Eastern * District of Arkansas. * Fay W. Boozman, in his Official * Capacity as Director of the Arkansas * Department of Health; Cutter Morning * Star School District; Lake Hamilton * School District; Raymond Simon, in his * Official Capacity as Director of the * Arkansas Department of Education, * * Defendants - Appellees. * __________ No. 02-3104 __________ Cynthia Boone, Individually and as * Next Friend of Ashley Boone, * * Plaintiff - Appellant, * * Appeal from the United States v. * District Court for the Eastern * District of Arkansas. Cabot School District; Fay Boozman, in * his Official Capacity as the Director of * the Arkansas Department of Health; * John Doe, 1 through 20, in their Official * Capacities as Agents, Servants, * -2- Employees or Officials of the State of * Arkansas, Department of Health, * * Defendants - Appellees. * ___________ No. 02-3195 ___________ Shannon Law, as Parent and Legal * Guardian of her Minor Children Joey * Law, Rob Law, and Claire Law, * * Plaintiff, * * Susan Brock, as Parent and Legal * Guardian of her Minor Children Harley * Brock, Mason Brock, Kathrine Brock, * Appeal from the United States and Michael Jarrell, * District Court for the Eastern * District of Arkansas Plaintiff - Appellee * * v. * * Fay W. Boozman, in his Official * Capacity as Director of the Arkansas * Department of Health, * * Defendant, * * Cutter Morning Star School District; * Lake Hamilton School District, * * Defendants - Appellants, * * Raymond Simon, in his Official * -3- Capacity as Director of the Arkansas * Department of Education, * * Defendant. * ___________ Submitted: March 10, 2003 Filed: March 8, 2004 ___________ Before HANSEN1, Chief Judge, RILEY and MELLOY, Circuit Judges. ___________ MELLOY, Circuit Judge. These consolidated appeals involve the application of an Arkansas statute that requires the immunization of Arkansas schoolchildren against Hepatitis B. Ark. Code Ann. § 6-18-702(a).2 The district courts3 held that the statute's religious beliefs 1 The Honorable David R. Hansen stepped down as Chief Judge of the United States Court of Appeals for the Eighth Circuit at the close of business on March 31, 2003. He has been succeeded by the Honorable James B. Loken. 2 Ark. Code Ann. § 6-18-702 (2002), as in effect at the time of the district courts’ decisions, provided: (a) Except as otherwise provided by law, no infant or child shall be admitted to a public or private school or child care facility of this state who has not been age appropriately immunized from poliomyelitis, diphtheria, tetanus, pertussis, red (rubeola) measles, rubella, and other diseases as designated by the State Board of Health, as evidenced by a certificate of a licensed physician or a public health department acknowledging the immunization. .... (d)(2) The provisions of this section shall not apply if the parents or legal guardian of that child object thereto on the grounds that -4- exemption violated the Establishment Clause of the First Amendment because the exemption applied only to the “religious tenets and practices of a recognized church or religious denomination.” Ark. Code Ann. § 6-18-702(d)(2) (2000) (emphasis added). The district courts then determined that the exemption was severable from the remainder of the statute. Construing the statute without the exemption, the district courts held that the underlying immunization requirement survived Due Process, Equal Protection, Free-Exercise, and Hybrid Rights challenges. On appeal, we do not reach the merits of the claims raised below because the Arkansas legislature rendered these issues moot when it broadened the exemption to encompass philosophical as well as religious objections. See Ark. Code Ann. § 6-18-702(d)(4)(A) (2003). Instead, we set forth the general history of these matters, explain the changes in Arkansas law, and address the issue of mootness as discussed by the parties in their supplemental, post-argument briefs. I. Background Because the issues in this case do not turn on the specific facts that differentiate each individual party, we forgo a detailed discussion of the individual parties and the specific facts that gave rise to their actions. Instead, we describe the parties generally immunization conflicts with the religious tenets and practices of a recognized church or religious denomination of which the parent or guardian is an adherent or member. (Emphasis added). The State Board of Health, in cooperation with the Board of Education, on July 27, 2000, promulgated regulations that listed Hepatitis B as one of the designated diseases under Ark. Code Ann. § 6-18-702(a). 3 The Honorable Robert T. Dawson, United States District Judge for the Western District of Arkansas (Case No. 02-3035), and the Honorable Susan Webber Wright, United States District Judge for the Eastern District of Arkansas (Case Nos. 02-3094, 02-3104, and 02-3195). -5- by their respective roles. The first group of parties consists of Arkansas schoolchildren who were excluded from school or threatened with exclusion from school for failure to receive immunization treatments for Hepatitis B. This group also includes the parents of the schoolchildren (collectively, the “Schoolchildren”). The second group consists of the Arkansas Departments of Health and Education and various officials from these two departments, including Fay W. Boozman, the Director of the Arkansas Department of Health (collectively, the “Officials”). The final group consists of various individual Arkansas school districts (collectively, the “School Districts”). In each case, the Schoolchildren brought suit against the School Districts and/or the Officials. The Schoolchildren in each case alleged that they held sincere religious beliefs that prevented each child from being immunized for Hepatitis B. The Schoolchildren did not belong to any recognized religion that had as one of its tenets opposition to immunization for Hepatitis B. We, like the district courts, assume for the purposes of our analysis that the Schoolchildren held sincere religious beliefs against Hepatitis B vaccination. In Case No. 02-3035 the Schoolchildren argued that the religious beliefs exemption violated the Establishment Clause of the First Amendment by permitting exemptions only for beliefs associated with a recognized religion. They also argued that the underlying immunization requirement violated their Equal Protection and Due Process rights under the Fourteenth Amendment. The district court accepted the Schoolchildren's arguments regarding the Establishment Clause challenge, but held the religious beliefs exemption severable. The district court then rejected the Schoolchildren’s Equal Protection and Due Process challenges to the underlying immunization requirement, finding that the Supreme Court had repeatedly ruled such requirements permissible. See Zucht v. King, 260 U.S. 174, 176-77 (1922); Jacobson v. Massachusetts, 197 U.S. 11, 27-29 (1905). Accordingly, the district court preserved the immunization requirement but severed the exemption. -6- Noting the hollow nature of the Schoolchildren's victory, the district court stated: Our holding does not afford relief of any real value to the Plaintiff because his daughter remains subject to receiving the required shots as a condition of attending school within the state of Arkansas. This decision will also be of understandable concern to those who previously enjoyed the immunization exemption as adherents or members of a recognized church or religious denomination. However, the recourse of both groups is to communicate their concerns to the Arkansas Legislature, for it is within the province of the legislature and not this Court to enact a religious exemption provision that comes within constitutional boundaries. In Case No. 02-3104, the Schoolchildren brought suit against the Officials and School Districts. The district court adopted the analysis of the earlier opinion and, in addition, set forth a separate analysis to conclude that the religious beliefs exemption was unconstitutional and severable. The district court rejected the Schoolchildren's argument that the First Amendment’s Free Exercise Clause demanded a compelling interest analysis of the compulsory immunization requirement. Instead, the district court found that the statute was a neutral statute of general applicability that did not target religious beliefs. The district court also rejected the argument that other constitutional rights, such as, inter alia, a parent's right to control a child's education, reinforced the underlying Free Exercise Rights challenge and mandated the application of compelling interest review under a Hybrid Rights analysis. See, e.g., Employment Div., Oregon Dep’t of Human Res. v. Smith, 494 U.S. 872, 881 (1990) (discussing the application of compelling interest review in cases that involve alleged First Amendment violations in combination with other alleged constitutional violations). Finally, the district court rejected a Substantive Due Process challenge under the Fourteenth Amendment in which the Schoolchildren alleged that the right to refuse medical treatment was a fundamental liberty interest that mandated compelling interest review of the compulsory immunization statute. -7- In Case No. 02-3094, the Schoolchildren brought suit against the Officials and the School Districts and argued issues similar to those described above. In addition, the Schoolchildren argued that because the compulsory immunization statute provided individualized exemptions for secular purposes, such as medical exigencies, a general religious exemption was necessary to avoid a Free Exercise violation. The district court rejected these arguments. Finally, Case No. 02-3195 involves a cross-appeal from two of the School Districts, the Morningstar and Lake Hamilton School Districts. The Morningstar and Lake Hamilton School Districts moved for dismissal arguing that they were involved in no justiciable case or controversy with the Schoolchildren. Pointing to the fact that the relevant Arkansas statutes and rules provide for criminal sanctions against school officials who fail to enforce the immunization requirements, the Morningstar and Lake Hamilton School Districts characterized themselves as disinterested bystanders caught in the crossfire between the Schoolchildren and the Officials. See Ark. Code Ann. § 6-18-702(c)(2)(B) (2000) (“Any school official, parent, or guardian violating the regulations shall be subject to the penalties imposed herein.”); Id. § 6-18-702(e) (2000) (“any person found guilty of violating the provisions of this section or the regulations promulgated by the State Board of Education or the division for the enforcement hereof shall be guilty of a misdemeanor.”). The district court rejected the motion to dismiss, finding that the Lake Hamilton and Morningstar School Districts were proper parties to the litigation. After obtaining jurisdiction, we entered a temporary stay to permit the non- immunized Schoolchildren to attend school pending resolution of their appeals. After oral arguments, we noted that the Schoolchildren had followed the district court’s suggestion and communicated their concerns to the Arkansas legislature. As a result, the Arkansas legislature had amended the exemption portion of the statute to omit reference to “recognized” religions and to provide broader exemptions based on -8- “religious or philosophical beliefs.” Id. § 6-18-702 (d)(4)(A) (2003).4 It appeared, 4 Ark. Code Ann. § 6-18-702 (d)(4) provides: (A) The provisions of this section shall not apply if the parents or legal guardian of that child object thereto on the grounds that immunization conflicts with the religious or philosophical beliefs of the parent or guardian. (B) The parents or legal guardian of the child shall complete an annual application process developed in the rules and regulations of the Department of Health for medical, religious, and philosophical exemptions. (C) The rules and regulations developed by the Department of Health for medical, religious, and philosophical exemptions shall include, but not be limited to: (i) A notarized statement requesting a religious, philosophical, or medical exemption from the Department of Health by the parents or legal guardian of the child regarding the objection; (ii) Completion of an educational component developed by the Department of Health that includes information on the risks and benefits of vaccination; (iii) An informed consent from the parents or guardian that shall include a signed statement of refusal to vaccinate based on the Department of Health’s refusal-to-vaccinate form; and (iv) A signed statement of understanding that: (a) At the discretion of the Department of Health, the unimmunized child or individual may be removed from day care or school during an outbreak if the child or individual is not fully vaccinated; and -9- however, that the broadened exemption was not yet in force because the Arkansas Department of Health had not passed necessary implementing regulations and the amended statute specifically prohibited the granting of exemptions prior to passage of the implementing regulations. See Id. § 6-18-702 (d)(4)(D). Accordingly, it was not clear whether any Schoolchildren would be excluded from school in the absence of our temporary stay. We directed the parties to submit supplemental briefs to address whether the anticipated availability of a broadened exemption mooted the underlying challenges to the immunization requirement. Subsequently, the Arkansas Department of Health passed the necessary implementing regulations.5 No claims under the newly amended exemption are before the court at this time, and no Schoolchildren claim to have been (b) The child or individual shall not return to school until the outbreak has been resolved and the Department of Health approves the return to school. (D) No exemptions may be granted under this subdivision (d)(4) until the application process has been implemented by the Department of Health and completed by the applicant. 5 Rules and Regulations Pertaining to Immunization Requirements, § IV(A), (C) and (D), slip at 4-5, at http://www.healthyarkansas.com/rules_regs/immunization _requirements_2003.pdf (promulgated in part under the authority of Ark. Code Ann. § 6-18-702, signed by Governor Mike Huckabee on July 31, 2003). The relevant provisions of the new exemption requirement require religious and philosophical objectors to complete an annual application, sign a notorized statement claiming conflict with religious or philosophical beliefs, complete an educational component regarding the risks and benefits of vaccination, and sign a statement of informed consent for the exclusion of a non-immunized child from school in the event of an outbreak. -10- denied the benefit of the new exemption under the amended statute and the new, implementing regulations. II. Analysis We first address the basic question of any mootness analysis: whether the plaintiffs still hold a personal interest in the outcome of the action or whether changed circumstances already provide the requested relief and eliminate the need for court action. Next we address exceptions to the mootness doctrine, namely, whether the controversy of the present cases is one that is likely to recur but evades review and whether the Arkansas legislature’s amendment of the statute is merely a voluntary cessation of challenged conduct that is insufficient to protect the Schoolchildren on an ongoing basis. Finally, we do not address the Schoolchildren’s newly raised challenges to certain procedural requirements of the new statute and regulations because such challenges are not ripe for review. A. Mootness “Under Article III of the Constitution, federal courts ‘may adjudicate only actual, ongoing cases or controversies.’” National Right to Life Political Action Comm. v. Connor, 323 F.3d 684, 689 (8th Cir. 2003) (quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990)). Various doctrines, including the doctrine of mootness, provide the tools used to determine whether a plaintiff presents a justiciable case or controversy. Our court has stated: The Supreme Court has repeatedly described the mootness doctrine as “the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 538 U.S. 167, 189 (2000) (citations omitted). Thus, “[w]e do not have jurisdiction over -11- cases in which ‘due to the passage of time or a change in circumstances, the issues presented . . . will no longer be ‘live’ or the parties will no longer have a legally cognizable interest in the outcome of the litigation.’” Van Bergen v. Minnesota, 59 F.3d 1541, 1546 (8th Cir. 1995) (quoting Arkansas AFL-CIO v. FCC, 11 F.3d 1430, 1435 (8th Cir. 1993) (en banc)). National Right to Life Political Action Comm., 323 F.3d at 691. The first question we address, then, is whether the current litigation still presents to the Schoolchildren an opportunity for redress or whether the Schoolchildren have received the entirety of their requested relief from the Arkansas legislature and, therefore, no longer possess a personal interest in the litigation. In each of the appealed cases, the Schoolchildren sought an exemption to allow them to attend public school in Arkansas without receiving immunization against Hepatitis B. Review of the amended immunization statute and its implementing regulations make clear that the statutory exemption now available to all the individual Schoolchildren provides precisely this relief. The Schoolchildren point to no other relief that they requested in the lower courts. Instead, they argue that an exception to the mootness doctrine applies and that we must address the merits of their cases to eliminate the risk that Arkansas might later repeal the newly enacted exemption provision. Further, they argue that the new exemption provision itself is unconstitutional because it discriminates against religious objectors and imposes undue burdens through the exemption application process.6 These arguments, however, do not speak to the underlying issue of mootness. Looking, as we must, at the relief requested and the scope of the relief made available by the Arkansas 6 The Schoolchildren also argued against mootness on the grounds that, at the time of supplemental briefing, the implementing regulations were open for comment and, therefore, not yet effective. This argument, however, was transitory and became irrelevant on July 31, 2003 when the governor of Arkansas signed the implementing regulations. -12- legislature, and finding no further relief that might be appropriate or available, it is clear that the Schoolchildren no longer present a live case or controversy. Their claims are moot. B. Exceptions to Mootness Notwithstanding this finding of mootness, we may still decide a case on its merits if the controversy in the case is “capable of repetition yet evad[es] review.” Arkansas AFL-CIO v. F.C.C., 11 F.3d 1430, 1435 (8th Cir. 1993) (en banc). One condition that must exist before this exception applies is “a reasonable expectation that the same complaining party will be subject to the same action again.” Van Bergen v. Minnesota, 59 F.3d 1541, 1547 (8th Cir. 1995). The Schoolchildren argue that this exception applies because Arkansas voluntarily ceased the challenged action when it amended the immunization statute, and, therefore, might repeal the new exemption provision at any time if not prohibited from doing so by court order. In advancing this argument, however, the Schoolchildren speculate as to a mere theoretical possibility. A speculative possibility is not a basis for retaining jurisdiction over a moot case. Id. (“The party need not show with certainty that the situation will recur, but a mere physical or theoretical possibility is insufficient to overcome the jurisdictional hurdle of mootness.”). Review of the facts makes clear the speculative nature of the Schoolchildren’s argument. The Arkansas legislature promptly acted to provide a broadened exemption for philosophical and religious objectors as well as objectors who claimed medical necessity. The legislature took this action even though the outstanding district court decisions held the existing statute constitutional even without a religious exemption. The legislature took this action not only to protect the Schoolchildren, but also to protect additional children not involved in this litigation who had received exemptions under the earlier, unconstitutional exemption provision. These additional children, like the Schoolchildren, would have been subject to exclusion from school -13- under the district courts’ decisions. Simply put, the legislature acted quickly for the benefit of the Schoolchildren and other citizens of Arkansas to replace the stricken exemption provision with an exemption it believed would pass constitutional muster. In providing relief for philosophical objectors as well as eliminating the requirement that religious objectors belong to a “recognized religion,” the legislature provided relief greater than that requested in the present litigation. The Department of Health also acted quickly by passing regulations before the start of a new school year. In sum, we find nothing to suggest a likelihood that Arkansas might repeal its exemption or that Arkansas voluntarily ceased the challenged behavior merely to thwart our jurisdiction. With no “reasonable expectation” that the Schoolchildren will again face forced immunization for Hepatitis B without the possibility of exemption, the exception to the mootness doctrine does not apply. The Schoolchildren argue not only that the general mootness exception applies, but also that, because the state voluntarily altered its own laws, the specialized exception for voluntary cessation applies. City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982) (“It is well settled that a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.”). This exception, however, is merely a specialized form of the general exception discussed above and provides no basis for retaining jurisdiction in the present case. “[T]he standard we have announced for determining whether a case has been mooted by the defendant’s voluntary conduct is stringent: ‘a case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.’” Young v. Hayes, 218 F.3d 850, 852 (8th Cir. 2000) (quoting United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203 (1968)). As explained above, there is no basis on which to conclude that the challenged behavior–mandatory immunization against Hepatitis B without the availability of an exemption–might reasonably be expected to recur. -14- Finally, we reject the Schoolchildren’s new challenges to the procedural requirements of the amended legislation and the accompanying implementing regulations. These requirements include an annual exemption application, submission of a notorized statement to request the exemption, completion of an educational component that “includes information on the risks and benefits of vaccination,” submission of a signed informed consent statement regarding refusal to vaccinate, and submission of a signed statement authorizing the Department of Health to exclude non-immunized children from school during the presence of an outbreak of a covered disease. See Ark.Code Ann. §6-18-702(4)(A) (2003). The Schoolchildren conceded during the course of these proceedings that a state may exercise its police power to exclude non-immunized children from public schools during an actual emergency, such as an outbreak. Further, none of the procedural requirements of the amended statute and new regulations empowers Officials to assess the merits of the Schoolchildren’s beliefs, and the requirements for religious objectors mirror those for philosophical objectors. Finally, the basis of their challenges to the educational components and application requirements are not entirely clear as these requirements apply equally to philosophical objectors as well as religious objectors. We need not resolve these challenges, however, because any challenges to the procedural requirements are not yet ripe. To the extent the Schoolchildren challenge the educational component or other aspects of the application process under the new exemption, their claims are speculative and involve no concrete injury–no Schoolchildren have applied for nor been denied exemption under the new statute. The purpose of the ripeness doctrine is “to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Abbot Labs. v. Gardner, 387 U.S. 136, 148-49 (1967). Were we to address the newly enacted exemption statute and regulations before first giving the Department of Health the opportunity to work with the -15- Schoolchildren, we would inappropriately and prematurely entangle the court in an abstract disagreement. In Case Nos. 02-3035, 02-3094, 02-3104, and 02-3195 we dismiss all pending claims as moot and all newly raised challenges as unripe for review. ______________________________ -16-
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274 Kan. 939 (2002) 58 P.3d 716 STATE OF KANSAS, Appellee, v. JAMES McINTOSH, Appellant. No. 86,386. Supreme Court of Kansas. Opinion filed December 6, 2002. *940 Paige A. Nichols, assistant appellate defender, argued the cause, and Reid T. Nelson, assistant appellate defender, Steven R. Zinn, deputy appellate defender, and Jessica R. Kunen, chief appellate defender, were with her on the briefs for appellant. Keith E. Schroeder, district attorney, argued the cause, and Thomas R. Stanton, deputy district attorney, and Carla J. Stovall, attorney general, were with him on the briefs for appellee. The opinion of the court was delivered by LOCKETT, J.: Defendant petitions for review from the Court of Appeals' affirmance of his convictions of rape, aggravated indecent liberties with a child, and two counts of aggravated criminal sodomy and his sentence of 316 months' imprisonment. Defendant claims (1) the trial court erred in finding that he failed to establish a compelling reason to require the victim to submit to an independent psychological examination; (2) the Court of Appeals erred in finding that a district court has no authority to order an independent physical examination of a victim in a criminal case; and (3) the trial court erred in admitting expert testimony. The facts as set forth in the Court of Appeals' opinion provide sufficient background in this case. Further facts are incorporated in the opinion as necessary. "McIntosh lived with Zoe D., his girlfriend, from December 1995 until July 1999. After McIntosh moved out, Zoe's daughter, A.D., told her mother that McIntosh had sexually abused her. Zoe reported the sexual abuse to the police. "A.D. was interviewed by Detective Eric Buller, but the interviews were not recorded. A.D. told Detective Buller that McIntosh raped her using his finger and penis and that he anally and orally sodomized her. A.D. stated that the incidents occurred in several different locations throughout their residence and in the *941 family van. A.D. also told the detective that the sexual abuse began when McIntosh moved into the house when A.D. was 7 years old and ended when McIntosh moved out of the house when she was 10 years old. "McIntosh was charged [in a complaint attested to by the prosecuting attorney] with five counts of rape, nine counts of aggravated criminal sodomy, five counts of aggravated indecent liberties with a child, and two counts of aggravated indecent solicitation of a child. Two counts of aggravated criminal sodomy and two counts of aggravated indecent solicitation of a child were dismissed at the preliminary hearing. Single counts of aggravated criminal sodomy and rape were dismissed by the State after it conceded that it could not prove that those offenses occurred in Reno County, Kansas. A jury convicted McIntosh of two counts of aggravated criminal sodomy and single counts of rape and aggravated indecent liberties with a child. McIntosh was sentenced to 316 months' imprisonment." State v. McIntosh, 30 Kan. App.2d 504, 505-06, 43 P.3d 837 (2002). The Court of Appeals affirmed McIntosh's convictions. McIntosh filed a timely petition for review. We granted review solely upon the three issues briefed to this court. See K.S.A. 20-3018(c); Supreme Court Rule 8.03(a)(5)(c) (2001 Kan. Ct. R. Annot. 56). DISCUSSION Prior to trial, McIntosh filed a motion requesting both a physical and psychological examination of the victim, A.D. The trial judge denied the motion. Psychological Examination A trial court's denial of a defendant's motion to compel the victim, who is not a party in the State's criminal action but is often referred to as the complaining witness or complainant, in a sex abuse case to undergo a psychological examination is reviewed for abuse of discretion. See State v. Gregg, 226 Kan. 481, 489, 602 P.2d 85 (1979); State v. Bourassa, 28 Kan. App.2d 161, 164, 15 P.3d 835 (1999), rev. denied 269 Kan. 934 (2000). The party who asserts the court abused its discretion bears the burden of showing such abuse. State v. Thompkins, 271 Kan. 324, 334-35, 21 P.3d 997 (2001). "Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, it cannot be said that the trial court abused its discretion." State v. Doyle, 272 Kan. 1157, 1168, 38 P.3d 650 (2002). *942 In Gregg, this court was faced, as a matter of first impression, with whether the trial court abused its discretion in denying the defendant's motion for the victim in a criminal case involving a sex crime to submit to a psychiatric examination. The victim in Gregg was an 8-year-old girl who was the sole witness to corroborate the charges against the defendant. The Gregg court first looked to other jurisdictions for guidance and noted that other jurisdictions fell into one of the following three categories: (1) The court has no inherent power to compel a psychiatric examination; (2) the defendant has an absolute right to an order compelling a psychiatric examination; and (3) the trial judge has the discretion to order a psychiatric examination of a complaining witness where compelling reason is shown. The court noted that the minority view was that the court had no inherent power to compel a psychiatric examination, while the majority of jurisdictions recognized that the trial judge has discretion to order a psychiatric examination when a compelling reason exists. 226 Kan. at 485-87. The Gregg court adopted the majority view, stating: "We, too, adopt the `middle ground' and hold a trial judge has the discretion to order a psychiatric examination of the complaining witness in a sex crime case if the defendant presents a compelling reason for such examination. Even if a trial court finds a compelling reason for ordering the psychiatric examination, the further safeguard as to its admissibility remains." 226 Kan. at 489. The Gregg court, in finding that the trial court did not abuse its discretion in denying the defendant's motion for psychiatric examination of the victim, relied upon the fact that the defendant in that case failed to put forth evidence as to (1) the victim's mental instability; (2) the victim's lack of veracity; (3) the victim's having asserted similar charges against other men that were later proven to be false; or (4) other reasons why the victim should be required to submit to such an examination. 226 Kan. at 490. In reaching its decision, the Gregg court quoted in length from Ballard v. Superior Court, 64 Cal.2d 159, 49 Cal. Rptr. 302, 410 P.2d 838 (1966) (statutorily overruled by Cal. Penal Code § 1112 [West 1985]): "`We therefore believe that the trial judge should be authorized to order the prosecutrix to submit to a psychiatric examination if the circumstances indicate a *943 necessity for an examination. Such necessity would generally arise only if little or no corroboration supported the charge and if the defense raised the issue of the effect of the complaining witness' mental or emotional condition upon her veracity. Thus, in rejecting the polar extremes of an absolute prohibition and an absolute requirement that the prosecutrix submit to a psychiatric examination, we have accepted a middle ground, placing the matter in the discretion of the trial judge.' 64 Cal.2d at 17[6]-177, []." Gregg, 226 Kan. at 489. See State v. Rucker, 267 Kan. 816, 822, 987 P.2d 1080 (1999) (recognized trial judge has discretion to order psychological examination of victim in sex crime case if defendant presents compelling reason); State v. Lavery, 19 Kan. App.2d 673, Syl. ¶ 1, 877 P.2d 443, rev. denied 253 Kan. 862 (1993); see Annot, 45 A.L.R. 4th, 310. Unlike the California Legislature, the Kansas Legislature has not statutorily overruled the 22-year-old decision in Gregg. Thus, it can be said that the legislature approves of the court ordering such examinations. Cf. In re Adoption of B.M.W., 268 Kan. 871, 881, 2 P.3d 159 (2000) (when legislature fails to modify statute to avoid standing judicial construction of statute, legislature is presumed to agree with court's interpretation). The trial court in this case found: "Here, the defense hasn't put on any evidence or any reason whatsoever that would get to a level of compelling. The defense is more than free at trial to attack the findings of Horizons [John Theis], and they are more than free to attack Dr. Glover's examination. But the fact that this defendant simply wants to have those findings verified is not a compelling reason to have a little eleven-year-old girl subjected to a psychological exam and particularly to a physical exam." Regarding this issue, the Court of Appeals stated: "Here, McIntosh argues that an independent psychological examination was required because a State witness completed a sexual abuse evaluation of A.D. and that he wanted his own expert to evaluate A.D. Specifically, McIntosh wanted an independent psychological examination of A.D. to determine whether A.D. suffered from post traumatic stress disorder as found by the State's witness. In addition, McIntosh wanted to ascertain the effect of the repeated questioning of A.D.'s memory of the alleged events. The trial court denied McIntosh's motion for a psychological examination of A.D. after finding that none of the factors cited by the Gregg court were argued by McIntosh. "We find that the trial court correctly determined that McIntosh failed to establish a compelling reason for A.D. to submit to an independent psychological examination. At the hearing on the motion for a psychological examination, McIntosh *944 did not argue that A.D. was mentally unstable, that she lacked veracity, or that she had made false charges against other men. Moreover, the grounds argued by McIntosh did not constitute a compelling reason to require an independent psychological examination. McIntosh could have attacked the finding of post traumatic stress disorder without conducting an independent examination of A.D. Similarly, McIntosh could have cross-examined the State's witnesses concerning the psychological evidence as to the effect of repeated questioning of A.D.'s recollection of the alleged incidents. As a result, we find that McIntosh has failed to carry his burden to show that the trial court erred in denying his motion for an independent psychological evaluation of A.D." McIntosh, 30 Kan. App.2d at 507-08. Before this court, McIntosh asserts the Court of Appeals erred because he did in fact state compelling reasons for an independent psychological examination, including mental instability and lack of veracity of the victim. McIntosh specifically cites to A.D.'s bedwetting, diagnosis of attention-deficit disorder for which she never took her medication, behavioral problems at school, and resentment for the fact her biological father was not around, that were present prior to McIntosh's moving into the home, as showing A.D.'s mental instability. In support of his claim that A.D. lacked veracity, McIntosh points out: (1) A.D. did not report her allegations until 2 months after McIntosh moved out of the home; (2) A.D. demonstrated friendly feelings toward McIntosh before and after the alleged abuse; (3) A.D. gave implausible, inconsistent, and continually inflated accounts of what allegedly happened between herself and McIntosh; and (4) the medical evidence was inconsistent with A.D.'s complaints of anal sodomy. Additionally, McIntosh claims that because A.D. was subjected to multiple psychological examinations, independent examination was necessary to determine (1) the validity of the State's examining experts' conclusions and (2) whether A.D.'s recollections had been altered by the multiple previous interviews. Kansas courts have addressed similar assertions in other cases involving child victims of sexual abuse. See Rucker, 267 Kan. 822-23, (no abuse of discretion in denying defendant's motion for independent psychological examination where defendant contended victim had been under psychological care related to alleged acts, nature of victim's testimony was critical to defense, victim had psychological *945 motivations for making the charge, and evidence would be relevant to issue of credibility of victim); Gregg, 226 Kan. at 490 (no abuse of discretion where no compelling reason for independent psychiatric examination was shown or alluded to; motion was "clearly fishing expedition embarked upon in the hope something damaging and admissible in the trial would be unearthed"); Lavery, 19 Kan. App.2d 673 (no abuse of discretion in denying defendant's motion for independent psychiatric examination where defendant contended and put forth evidence that victim was inappropriately exposed to sex and was using knowledge to falsely accuse, was unsupervised most of the summer, used foul language, was possibly molested by another man, and had told false story about killers in the school basement to neighborhood girls; trial judge had also noted there was episode of victim "`playing doctor'" with neighborhood children); State v. Blackmore, 15 Kan. App.2d 539, 542, 811 P.2d 54, affd in part and rev'd in part 249 Kan. 668, 822 P.2d 49 (1991) (no abuse of discretion in denial of defendant's motion for independent psychiatric examination where victim had been taken to health center for treatment of behavioral problems and had problematic behavior that consisted of hyperactivity, sleeplessness, bowel movements in his pants, and gagging himself at night until he vomited); cf. Bourassa, 28 Kan. App.2d at 167 (abuse of discretion in denying defendant's motion for independent psychological examination where defendant proffered evidence of victim's mental instability, which involved recent charge that her father had sexually molested her, that she had mutilated two kittens the previous summer, and that she had tendency to soil herself; victim was taking Prozac and undergoing mental health counseling for behavioral disorders at time of motion; and victim's sister contradicted victim's testimony as to abuse). The October 1999 psychological examination of A.D. performed by John Theis, a licensed clinical social worker, was videotaped and provided to the defense. McIntosh was able to cross-examine Theis and other State's witnesses who interviewed A.D. In addition, McIntosh had the opportunity to put forth his own experts to testify as to whether Theis' conclusions were accurate. We note that McIntosh did call Robert Barnett, a licensed clinical psychologist, as *946 a witness to demonstrate to the jury that children are easily influenced during the interview process; that the most important interview is the first interview, which in this case was not recorded; that repeat interviews can affect the accuracy of the information conveyed; and that it is well understood that there are no behaviors or groups of behaviors that are exhibited by sexually abused children that are not also exhibited by children who are not abused. The testimony of the individuals who interviewed and counseled A.D. did not reflect that there was an attempt to influence A.D.'s account of the events. In general, A.D.'s accounts of the abuse were consistent throughout all interviews and at trial. After reviewing the record, we affirm the Court of Appeals' finding that the trial court did not abuse its discretion in finding that McIntosh did not establish a compelling reason for A.D. to submit to an independent psychological examination. Physical Examination In his motion requesting a physical examination of the victim, McIntosh relied for support upon Gregg, 226 Kan. 481, and K.S.A. 2001 Supp. 22-3212. At the hearing on the motion, defense counsel argued that the physical examination conducted by Dr. Reagan Glover was not "of a definite character to say that [A.D.] was sexually abused." Defense counsel noted that there was no photographic record of the injuries sustained to A.D. Defense counsel asserted that under such circumstances McIntosh's due process right to challenge the State's physical examination evidence of the victim required an independent examination. The State noted that the defense failed to state the relevance of a physical examination conducted more than a year after the cessation of abuse. As stated previously, the trial court, relying upon Gregg, found that McIntosh also failed to meet his burden of establishing a compelling reason for an independent physical examination. After his conviction, McIntosh asserted in his motion for judgment of acquittal or new trial that the trial court's denial of his motion for physical examination denied him the opportunity to confirm or refute the findings of Dr. Glover. The motion was denied by the trial judge. *947 Before the Court of Appeals, McIntosh claimed the trial court's denial of an independent examination of the victim infringed upon his due process rights under the United States and Kansas Constitutions. For support, McIntosh relied upon the Kansas Code of Civil Procedure, specifically K.S.A. 2001 Supp. 60-235, and Turner v. Com., 767 S.W.2d 557 (Ky. 1988). Furthermore, McIntosh asserted the standard for ordering the examination was "good cause" rather than "compelling reason." The State argued that K.S.A. 2001 Supp. 60-235 applied only to civil matters. The State maintained that the issue was not a constitutional question as McIntosh claimed, but an evidentiary ruling that is reviewed for abuse of discretion. The State asserted that following the reasoning set forth in Gregg regarding psychiatric examinations, McIntosh failed to set forth a compelling reason for an independent physical examination. The Court of Appeals agreed with the State and held that K.S.A. 2001 Supp. 60-235 does not apply in criminal cases. McIntosh, 30 Kan. App.2d at 507. The Court of Appeals also determined that the decision of the trial court was subject to review for abuse of discretion because it involved an evidentiary ruling and not a violation of a constitutional right. The Court of Appeals did not, however, address the trial court's denial of McIntosh's motion for independent physical examination based upon the rationale for a psychiatric examination under Gregg. Instead, the Court of Appeals examined the statutes and determined that the district court did not have the authority to order an independent physical examination under K.S.A. 2001 Supp. 22-3212, which governs discovery in a criminal action and provides: "(a) Upon request, the prosecuting attorney shall permit the defendant to inspect and copy or photograph the following, if relevant:.... (2) results or reports of physical or mental examinations, and of scientific tests or experiments made in connection with the particular case, or copies thereof, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney.... "(b) Upon request the prosecuting attorney shall permit the defendant to inspect and copy or photograph books, papers, documents, tangible objects, buildings or places, or copies, or portions thereof, which are or have been within the *948 possession, custody or control of the prosecution, and which are material to the case and will not place an unreasonable burden upon the prosecution." In reaching its conclusion, the Court of Appeals relied upon State v. Dressel, 241 Kan. 426, 738 P.2d 830 (1987). McIntosh, 30 Kan. App.2d at 507. We note that the lack of jurisdiction was not argued to the district court, nor was the Dressel case cited by either party on appeal. In Dressel, 241 Kan. 426, this court was faced with whether a trial court had the authority under K.S.A. 22-3212 to compel discovery from the complaining witness in a criminal case. The Dressel court concluded it did not. In Dressel, attempted felony theft and felony theft was alleged by Cargill, Inc. (Cargill). The defendants sought discovery of certain items from Cargill and sanctions for destruction of evidence. The district court noted that Cargill was not a party to the criminal case and, therefore, was outside its jurisdiction. The court denied the defendants' discovery motions and refused to impose sanctions. The court concluded that the defendants had the ability to obtain relevant records of a nonparty by use of subpoena. On appeal, the Court of Appeals held that because Cargill had hired an attorney to assist in the prosecution pursuant to K.S.A. 19-717 and this attorney had knowledge and control of the items requested by the defendant, the items were subject to discovery under K.S.A. 22-3212. On petition for review, this court reversed the Court of Appeals and affirmed the trial court, noting that because Cargill was not a party to the criminal prosecution, the trial court did not have the authority to compel discovery from Cargill under K.S.A. 22-3212. 241 Kan. at 432. The court concluded that an attorney employed under K.S.A. 19-717 to assist the prosecutor is bound by K.S.A. 22-3212 to turn over items subject to K.S.A. 22-3212 that are within that attorney's possession, custody, or control. 241 Kan. at 434. In rendering its decision, the Dressel court stated: "Failure to impose the discovery mandates of K.S.A. 22-3212 on a complaining witness does not foreclose discovery; it merely forecloses one method of discovery. Criminal defendants have the right to subpoena witnesses and to compel the production of documents. This right is statutorily provided by K.S.A. 22-3214 and *949 was explicitly recognized by this court in State v. Humphrey, 217 Kan. 352, 361, 537 P.2d 155 (1975)." 241 Kan. at 432. When determining that the district court did not have jurisdiction to subject the victim to a physical examination in this case, the Court of Appeals noted that K.S.A. 2001 Supp. 22-3212 fails to provide that an independent physical examination may be ordered but specifically provides for numerous others items that are subject to discovery. Therefore, pursuant to the maxim "expressio unius est exclusio alterius, which means `the inclusion of one thing implies the exclusion of another,'" the Court of Appeals held K.S.A. 2001 Supp. 22-3212 precluded the district court from ordering an independent physical examination of the victim. McIntosh, 30 Kan. App.2d at 510. This reasoning assumes that K.S.A. 2001 Supp. 22-3212 sets forth every possible item subject to discovery in a criminal case. The Court of Appeals failed to note that this court specifically recognized the contrary in State v. Davis, 266 Kan. 638, Syl. ¶ 1, 972 P.2d 1099 (1999). The Davis court was faced with determining whether the district court had the authority to order the county attorney to mail documents to the defense that were clearly subject to discovery and under the control of the State. K.S.A. 2001 Supp. 22-3212 provides that the prosecutor must permit the defense to "inspect and copy, or photograph" the documents, but does not specifically provide that the county attorney must mail the documents. The Davis court held that the district court had the discretionary authority to order the county attorney to mail the documents. In reaching its decision, the Davis court observed: "K.S.A. 22-3212 is based on Fed. R. Crim. Proc. 16. See State v. Jones, 209 Kan. 526, 528, 498 P.2d 65 (1972). The Federal Advisory Committee, in its notes on Rule 16, states: `[Rule 16] is intended to prescribe the minimum amount of discovery to which the parties are entitled. It is not intended to limit the judge's discretion to order broader discovery in appropriate cases. For example, subdivision (a)(3) is not intended to deny a judge's discretion to order disclosure of grand jury minutes where circumstances make it appropriate to do so.' Federal Advisory Committee's Notes on 1974 Amendment on Rule 16. *950 "Federal courts interpreting Rule 16 have held that it is within the sound discretion of the district judge to make any discovery order that is not barred by higher authority. See United States v. Campagnuolo, 592 F.2d 852, 857 n.2 (5th Cir. 1979); United States v. Sawyer, 831 F. Supp. 755, 757 (D. Neb. 1993)." Davis, 266 Kan. at 642-43. See also United States v. Richter, 488 F.2d 170, 173 (1973) ("The Federal Rules of Criminal Procedure are intended to constitute a comprehensive procedural code for criminal cases in the federal courts. But even the rules themselves do not purport to set outer limits of the power of the court."). The text of K.S.A. 2001 Supp. 22-3212 is not all-inclusive. The fact submission to physical examinations is not specifically provided for under the statute does not mean the district court does not have the authority to order the examination in a particular case. Therefore, the Court of Appeals erred in relying upon K.S.A. 2001 Supp. 22-3212 to divest the district court of the authority to order a physical examination. McIntosh's best argument is that the Court of Appeals' decision is inconsistent with this court's decision in Gregg. Although the decision and reasoning of Gregg involved a psychiatric examination, Gregg is the logical point at which to begin in determining whether a district court in this state has the authority to order a victim in a sex crime case to submit to a physical examination upon a defendant's request. The reasoning of other jurisdictions that have addressed the issue of the more intrusive physical examination is also relevant. In State v. Barone, 852 S.W.2d 216 (Tenn. 1993), the highest court in Tennessee was faced for the first time with this exact issue. Barone was convicted of two counts of aggravated rape and one count of aggravated sexual battery involving his minor daughter. On appeal, Barone contended the trial court erred in denying his motion to have the victim submit to a physical examination. The victim had been examined previously, just shortly after the abuse was reported. In rendering its decision that the trial court had the authority to order a victim to submit to a physical examination, the Barone court stated: *951 "We begin our analysis by observing that, as a matter of background, `the common law does not authorize a court to require the physical examination of a witness, because discovery in criminal cases was unknown to the common law.' State v. Smith, 260 So.2d 489, 491 (Fla. 1972). Nor does there exist in Tennessee a statutory right to a compelled physical examination of a witness by a criminal defendant, either in the Tennessee Rules of Criminal Procedure or otherwise. It is also true that there are several state courts that, in the absence of such a statutory right, have held there is no constitutional or other basis for defense-demanded physical examinations of alleged sex-offense victims. See State v. Smith, 260 So.2d 489, 489-90 (Fla. 1972); State v. Holmes, 374 N.W.2d 457, 459 (Minn. App. 1985); State, ex rel. Wade v. Stephens, 724 S.W.2d 141, 143 (Tex. Crim. App. 1987). "There are no reported cases in Tennessee addressing this issue. However, there are a number of Tennessee cases dealing with a defendant's right to request a psychological examination of sex-abuse complainants. The analysis to be followed by a trial court in ruling on that type of request is set out in Forbes v. State, 559 S.W.2d 318, 321 (Tenn. 1977), where this Court followed the general rule when it stated: "We hold that in any case involving a sex violation, the trial judge has the inherent power to compel a psychiatric or psychological examination of the victim, where such examination is necessary to insure a just and orderly disposition of the cause. Such power should be invoked only for the most compelling of reasons, all of which must be documented in the record. This discretion should be exercised sparingly.' "A number of state courts have determined that as in the case of psychological examinations, a trial court may exercise its discretion to order an involuntary physical examination of sex-abuse complainants when the defendant demonstrates a compelling reason for the examination. People v. Chard, 808 P.2d 351 (Colo. 1991); State v. DRH, 127 N.J. 249, 604 A.2d 89 (1992); State v. Ramos, 553 A.2d 1059 (R.I. 1989); State v. Delaney, 187 W. Va. 212, 417 S.E.2d 903 (1992). The decision of a trial court judge to grant or deny a motion for an independent physical examination should not be reversed on appeal absent a manifest abuse of discretion. Lanton v. State, 456 So.2d 873, 874 (Ala. Crim. App. 1984); 75 C.J.S. Criminal Law § 80 (1952). "State courts have adopted a number of approaches to determining whether an accused sex-offender is entitled to a compulsory physical examination of a complainant. First is the material assistance inquiry, which requires a physical examination when it could lead to evidence of material assistance to the defendant. See Turner v. Commonwealth, 767 S.W.2d 557 (Ky. 1988). Second is the compelling need inquiry, which balances the defendant's interest in the evidence against the burden the examination imposes upon the complainant. Some states include a factor-based balancing approach. See People v. Glover, 49 Ill.2d 78, 273 N.E.2d 367 (1971); State v. Ramos, 553 A.2d 1059 (R.I. 1989); State v. Garrett, 384 N.W.2d 617 (Minn. App. 1986). Third is the exculpatory approach, which allows a defendant a physical examination only when the evidence likely to be *952 obtained could absolutely bar his conviction. See People v. Nokes, 183 Cal. App. 3d 468, 228 Cal. Rptr. 119 (1986); State v. Hewett, 93 N.C. App. 1, 376 S.E.2d 467 (1989). Fourth is the medically deficient standard, which permits an examination only if the prosecutor's examination failed to conform to proper medical procedures. See State v. Drab, 546 So.2d 54 (Fla. Dist. Ct. App. 1989), rev. denied, 553 So.2d 1164 (Fla. 1989). See also Note, A Fourth Amendment Approach to Compulsory Physical Examinations of Sex Offense Victims, 57 U. Chi. L. Rev. 873 (1990). "Initially, we are satisfied that the Forbes rule of compelling need should be extended to physical examinations of sex-abuse complainants. We think the practice of granting such physical examinations should be engaged in with great care and only upon a showing of compelling need by the defendant. Other courts have observed, and we agree, that the highly intrusive nature of a physical exam raises the same concerns about emotional trauma, embarrassment, and intimidation to the child victim that are present with psychological examinations. People v. Chard, 808 P.2d 351, 355 (Colo. 1991). In addition, we think those concerns should be balanced against the likelihood of the examination producing substantial material evidence that will be beneficial to the defendant's case. Id. We recognize that there is a delicate balance to be struck, and that the critical inquiry is whether the evidence sought by the defendant is of such importance to his defense that it outweighs the potential for harm caused by the invasion of the complainant's privacy, including the prospect that undergoing a physical examination might be used for harassment of a prosecuting witness. See Turner v. Commonwealth, 767 S.W.2d 557, 559 (Ky. 1988)." 852 S.W.2d at 221-22. We note that the result in Barone is not unique; other jurisdictions have also reached similar conclusions. See State v. Chard, 808 P.2d 351, 357 (Colo. 1991); People v. Visgar, 120 Ill. App.3d 584, 587, 457 N.E.2d 1343 (1983); State v. D.R.H., 127 N.J. 249, 259-60, 604 A.2d 89 (1992); State v. Ramos, 553 A.2d 1059, 1062 (R.I. 1989);. However, there are other jurisdictions that refuse to recognize that a defendant could ever have the right to obtain an order for a victim to submit to a physical examination. See State v. Joyce, 97 N.C. App. 464, 467, 389 S.E.2d 136 (1990); State ex rel. Wade v. Stephens, 724 S.W.2d 141, 144-45 (Tex. App. 1987); Clark v. Commonwealth, 262 Va. 517, 521, 551 S.E.2d 642 (2001). Following the reasoning stated in Gregg and case law from other jurisdictions, we determine that where there is a compelling reason, the district court has the discretion to order a victim in a sex crime case to submit to an independent physical examination. We *953 note that it is important for district courts to recognize that the victim in a criminal case is not a party to the action. This court must now determine whether the district court abused its discretion in denying McIntosh's motion for independent physical examination. The factors from Gregg that establish a compelling reason for an independent psychological examination do not apply to the more intrusive physical examination. In addition, there is a notable distinction between psychological examiners and physical examiners. A psychological examiner is an expert witness specifically retained by the prosecution for the purpose of examining the victim. A physical examination, however, is usually conducted by a medical doctor and hospital staff. The standard of review over a trial court's decision to grant or deny a motion for discovery is abuse of discretion. See Davis, 266 Kan. at 643-44; Gregg, 226 Kan. at 489; Bourassa, 28 Kan. App.2d at 168. The Rhode Island Supreme Court set forth factors that a trial court should consider in determining whether to grant a defendant's motion for independent physical examination: "(1) the complainant's age, (2) the remoteness in time of the alleged criminal incident to the proposed examination, (3) the degree of intrusiveness and humiliation associated with the procedure, (4) the potentially debilitating physical effects of such examination, and (5) any other relevant considerations." Ramos, 553 A.2d at 1062. See also State v. Delaney, 187 W. Va. 212, 217, 417 S.E.2d 903 (1992) (in addition to factors set forth in Ramos, also consider emotional effects of examination on victim, probative value of examination to issue before court, and evidence already available for defendant's use). McIntosh argued the following reasons before the trial court as support for an independent physical examination being warranted: (1) Examination of Dr. Reagan Glover did not show sexual abuse was definite; (2) there was no photographic evidence of injuries sustained by A.D.; (3) independent examination was the best way to challenge the prosecution's evidence; (4) denial of the examination was a violation of due process; (5) defendant was denied the opportunity to challenge the evaluation of Dr. Glover; (6) Dr. Glover found no physical evidence to corroborate A.D.'s claim of *954 repeated anal sodomy; (7) A.D. delayed reporting the abuse until 2 months after McIntosh left the home; and (8) A.D.'s mother's animosity toward McIntosh was the source of A.D.'s allegations. Before the Court of Appeals, McIntosh took issue with the fact Dr. Glover was made aware of the purpose of the examination prior to conducting it and was guided through the examination by A.D.'s providing a history of the events. McIntosh cited for the first time to a study that concluded that a diagnosis is often affected and changed when a history of the examinee is given. Additionally, McIntosh cited studies and articles that he contended were are at odds with the testimony and conclusions of Dr. Glover. At trial, McIntosh did not present or attempt to present evidence to refute Dr. Glover's conclusions. The Court of Appeals noted in its decision that denying McIntosh an independent physical examination was not unfair because the objective results of the State's examination of A.D. were available through discovery, McIntosh could have cross-examined Dr. Glover on the results of the examination, and McIntosh had presented experts who had reviewed Dr. Glover's findings to refute those findings. McIntosh, 30 Kan. App.2d at 510-11. A.D. was 11 years old at the time of trial. The abuse was claimed to have begun within a couple of months of McIntosh moving into the home in December 1995. A.D. was 7 years old at the time. The abuse was alleged to continue until a couple of weeks before McIntosh moved out of the home in July 1999, when A.D. was 10 years old. The physical examination was performed on September 28, 1999. The complaint was filed against McIntosh in November of 1999, yet McIntosh failed to request an independent physical examination until September of 2000. Thus, a year passed between the first examination which occurred only 2 months after the cessation of the alleged abuse and McIntosh's request for a subsequent examination. McIntosh did not put forth an explanation for the delay, nor did he put forth any support to refute the natural assumption that signs of the physical abuse would be different, if not less evident, a year later. Requiring an 11-year-old victim to submit to a physical examination would undoubtedly be humiliating and traumatizing. McIntosh *955 attempts to downplay the humiliation and trauma that A.D. would experience by noting that A.D. has already been examined by Dr. Glover. This assertion is not convincing. Since the cessation of abuse, A.D. has undoubtedly begun to heal both physically and mentally. An additional physical examination could only serve as a setback to the healing process and should only be granted upon a showing of compelling reason. In a situation such as this, where there has already been a physical examination performed, the argument that a second physical examination is necessary must be especially compelling. Factors that a court must consider in determining whether to grant a defendant's motion for independent physical examination are (1) the victim's age; (2) the remoteness in time of the alleged criminal incident to the proposed examination; (3) the degree of intrusiveness and humiliation associated with the procedure; (4) the potentially debilitating physical and emotional effects of such examination; (5) the probative value of the examination to the issue before the court; (6) the evidence already available for the defendant's use; and (7) any other relevant considerations. The findings and testimony of the medical doctor who performed the prior physical examination for the State can, in most instances, be sufficiently challenged on cross-examination and through defense expert witness testimony. McIntosh had the burden of proving the trial court abused its discretion. See Thompkins, 271 Kan. at 334-35. McIntosh did not meet this burden. Thus, the trial court did not abuse its discretion in finding that McIntosh failed to put forth a compelling reason for A.D. to submit to an independent physical examination. Admission of Expert Witness Testimony McIntosh contends the trial court erred in admitting over objection the testimony of John Theis, a licensed clinical social worker, that A.D. exhibited behavioral patterns consistent with a child who had been sexually abused. Qualification of a witness as an expert and admission of expert witness testimony is within the broad discretion of the trial court. See State v. Heath, 264 Kan. 557, 573, 957 P.2d 449 (1998); State v. Rice, 261 Kan. 567, 589, 932 P.2d 981 (1997). *956 "Two requirements must be present before expert testimony is admissible at trial. First, the testimony must be helpful to the jury. Second, before expert scientific opinion may be received into evidence at trial, the basis of that opinion must be shown to be generally acceptable within the expert's particular scientific field." State v. Hodges, 239 Kan. 63, Syl. ¶ 1, 716 P.2d 563 (1986). Expert conclusions or opinions are inadmissible where the normal experiences and qualifications of lay persons serving as jurors permit them to draw proper conclusions from given facts and circumstances. State v. Colwell, 246 Kan. 382, 389, 790 P.2d 430 (1990). The trial judge allowed Theis to testify over McIntosh's objection. In denying McIntosh's motion for judgment of acquittal or new trial on this ground, the trial judge relied upon State v. Reser, 244 Kan. 306, 767 P.2d 1277 (1989). In Reser, this court addressed whether there was an adequate foundation to qualify a State's witness as an expert on symptoms consistent with child sexual abuse. The State's witness was a licensed clinical specialist with 12 years of experience in the area of mental health, had a master's degree in social work, and had worldwide recognition in the field of child sexual abuse. The witness testified that sexually abused children have common patterns of behavior resulting from the trauma, including failing to report the abuse immediately. The witness testified that it was her opinion that the victim exhibited behavior consistent with a child who had been sexually abused. The Reser court looked to other jurisdictions in which expert testimony regarding characteristics of sexually abused children had been held proper to provide helpful information to the jury and concluded that the expert was "imminently qualified" as an expert to testify as to common patterns of behavior resulting from child sexual abuse and that this victim had symptoms consistent with those patterns. 244 Kan. at 315. Before the Court of Appeals, McIntosh contended that there was no foundation for Theis' testimony that A.D. fit the profile of a sexually abused child. McIntosh acknowledged that the Reser court had specifically approved this type of testimony but contended that in the 10 years since Reser, research demonstrates that such testimony is no longer generally accepted. The Court of Appeals held: *957 "McIntosh argues that this court should decline to follow Reser because the court failed to address whether characteristics of child sexual abuse have been generally accepted. McIntosh adds that Reser is a decade old, and research subsequent to the case shows that the supposed indicators of child sexual abuse cited in that case are not generally acceptable. While it may be true that there is not a universally accepted profile for sexually abused children, the Reser court held that expert testimony on common patterns of behavior by child victims of sexual assault is admissible as corroborating evidence of the abuse. This court is duty bound to follow our Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Maybin, 27 Kan. App.2d 189, 205, 2 P.3d 179, rev, denied 269 Kan. 938 (2000). Because our Supreme Court has not indicated that it is departing from its previous position that expert testimony on common patterns of behavior of child victims of sexual assault is admissible corroborating evidence, this court is duty bound to follow Reser. "McIntosh suggests that this court follow State v. Bressman, 236 Kan. 296, 689 P.2d 901 (1984). In Bressman, a physician testified that in her opinion the complaining witness had been raped. On appeal, the defendant argued that the trial court erred in admitting the expert witness testimony because it was without sufficient foundation. The Bressman court agreed, finding that the trial court committed prejudicial error in permitting the expert witness testimony because there was not a sufficient foundation to qualify the physician as an expert to give such an opinion since there was no showing that she was trained as an expert in psychiatry and that she had examined the complaining witness for the purpose of rendering a diagnosis as to whether she evidenced rape trauma syndrome. 236 Kan. at 304, 689 P.2d 901. "Bressman, however, is distinguishable from the instant case. The Bressman court recognized that under State v. Marks, 231 Kan. 645, 647 P.2d 1292 (1982), qualified expert psychiatric testimony regarding rape trauma syndrome is relevant and admissible. Although expert opinion testimony on rape trauma syndrome is admissible, the Bressman court found that the physician did not qualify as an expert witness because she was not trained in psychiatry and because she did not examine the victim for the purpose of rendering a psychiatric diagnosis. Accordingly, McIntosh's reliance on Bressman is misplaced because the case supports the admission of expert witness testimony as to the characteristics of sexual assault victims, provided the testimony is given by a qualified expert. "As a result, we follow our Supreme Court precedent in Reser and hold that qualified expert witness testimony on the common patterns of behavior of a sexually abused child was admissible to corroborate the complaining witness' allegations. In addition, we find that Theis was qualified as an expert on child sexual abuse. Theis was a licensed clinical social worker with a master's degree in social work and had regularly conducted sexual abuse evaluations. In fact, Theis' qualifications were very similar to the qualifications of the expert witness in Reser, who was found to be a qualified expert on child sexual abuse. Accordingly, we find that Theis was qualified as an expert witness in this case. *958 "We further find that the trial court did not abuse its discretion in admitting Theis' testimony. There was a sufficient foundation for the expert witness testimony and Theis was qualified as an expert witness. Moreover, the expert testimony was not used to prove that A.D. was sexually abused, but rather was used to corroborate her allegations. As a result, we find that the trial court did not abuse its discretion in admitting expert witness testimony that A.D. fitted the profile of a sexually abused child." McIntosh, 30 Kan. App.2d at 520-21. As the trial court and Court of Appeals correctly recognized, Reser controls. Many of the cases from other jurisdictions relied upon by the Reser court remain good law today. See Rodriquez v. State, 741 P.2d 1200 (Alaska App. 1987); State v. Radjenovich, 138 Ariz. 270, 674 P.2d 333 (Ariz. App. 1983); Poyner v. State, 288 Ark. 402, 705 S.W.2d 882 (1986); State v. LeBrun, 37 Or. App. 411, 587 P.2d 1044 (1978), rev. denied 286 Or. 149 (1979). We note, however, State v. Cressey, 137 N.H. 402, 628 A.2d 696 (1993) (child abuse expert testimony may not be offered to prove child has been sexually abused; such evidence may only be used to explain behavioral characteristics commonly found in child abuse victims to preempt or rebut inferences the child was lying; recognized there was no difference between expert testifying the child was abused and testifying that child exhibited behaviors consistent with sexually abused children), and State v. Michaels, 264 N.J. Super. 579, 599, 625 A.2d 489 (1993) (held child abuse expert evidence is admissible only for rehabilitation purposes, e.g., explaining traits often found in children who have been abused when trait may seem inconsistent with abuse). McIntosh urges this court to reconsider the holding in Reser. For support, McIntosh cites numerous articles and cases from other jurisdictions which have concluded that such evidence should be inadmissible. McIntosh argues the identification of common characteristics associated with sexual abuse is unreliable and that some jurisdictions admit such evidence only to rehabilitate the victim. On direct examination, Theis detailed the format he underwent in evaluating A.D. and the information obtained from the interview. Theis also testified on direct that there are common patterns of abuse among sexually abused children. Upon objection from the *959 defense, the prosecutor contended Theis was qualified to testify to such because of his extensive training in dealing with sexually abused children and his performance of numerous sexual abuse examinations of children. The trial judge found Theis qualified to testify as to whether there are established patterns. Theis stated that the common patterns of abuse include: nightmares, extreme guilt, social withdrawal, acting-out behavior, firesetting, avoidance of school, aggressive behavior, inappropriate sexual acting-out, as well as other symptoms not specifically set forth. Theis then testified, over defense objection, that in interviewing A.D. he had observed behaviors that were "consistent with" a child who had been sexually abused. The behavior that Theis was referring to consisted of A.D.'s extreme nervousness when talking about the abuse, tearful and emotional breakdown, sleep disturbance, fear for her safety, distressing thoughts about the abuse, distrust of others, hypervigilance (anticipatory anxiety—worry about negative events happening again), feelings of guilt, and delayed disclosure. It must be noted that Theis testified on cross-examination that the behaviors he had identified as being consistent with children who have been sexually abused are also capable of being seen in children who have not been abused. Additionally, McIntosh put forth Robert Barnett, a licensed clinical psychologist, to testify that it is well understood that there is no single behavior or group of behaviors that are exhibited solely in sexually abused children. In cases involving sexual abuse, the evidence is often centered entirely upon the credibility of the victim and the alleged abuser. Theis' testimony provided circumstantial support in favor of A.D.'s credibility by demonstrating that her behavior was not inconsistent with someone who had been sexually abused. Theis did not testify that in his opinion A.D. was abused. McIntosh, through testimony elicited on cross-examination and later in his case in chief, made the jury aware that the presence of such behaviors in a child victim does not prove sexual abuse. Although jurisdictions differ as to the allowance of such testimony, McIntosh does not state a significant reason for this court to exclude such evidence in Kansas. *960 The Court of Appeals did not err in finding that the trial court did not abuse its discretion in qualifying Theis as an expert for the purpose of testifying as to common behaviors among sexually abused children and allowing Theis to testify that A.D. exhibited behavior consistent with a sexually abused child. The Court of Appeals and the district court are affirmed.
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Cite as 2014 Ark. 184 SUPREME COURT OF ARKANSAS No. CR-13-223 ROBERT LEANDER STIGGERS Opinion Delivered April 24, 2014 APPELLANT APPEAL FROM THE PULASKI V. COUNTY CIRCUIT COURT, FIFTH DIVISION [NO. CR2003-793] STATE OF ARKANSAS APPELLEE HONORABLE WENDELL LEE GRIFFEN, JUDGE AFFIRMED. KAREN R. BAKER, Associate Justice On June 16, 2005, a Pulaski County jury convicted appellant, Robert Leander Stiggers, of first-degree murder and first-degree battery. He was sentenced to forty years imprisonment for the murder conviction and twenty years imprisonment for the battery conviction with the sentences to run consecutively. Stiggers’s convictions and sentences were affirmed in Stiggers v. State, CACR 05-1399 (Ark. App. May 31, 2006) (unpublished). Stiggers’s convictions and sentences stem from a January 10, 2003 shooting that occurred in the Hollingsworth Courts neighborhood in Little Rock. Raynaud Muldrew and Wardell Newsome were both shot. Muldrew was found in a vehicle, and Newsome was lying near it. Muldrew died as a result of his injuries. Despite being shot in the back of the head, Newsome survived his injuries. Immediately after the shooting and at trial, Newsome identified Stiggers as the shooter. The relevant facts, as recounted by the court of appeals in Stiggers’s direct appeal are as follows: Cite as 2014 Ark. 184 Sergeant Sidney Allen . . . discovered Wardell Newsome lying on the ground near the vehicle. He had been shot four times in the right shoulder and once behind his right ear. While at the scene, Newsome told Sgt. Allen that [Stiggers] was the person who shot him. . . . Detectives Eric Knowles and Keith Cockrell questioned Newsome about the incident while he was undergoing treatment at UAMS. Newsome explained that he had borrowed a friend’s car earlier in the evening and picked up Muldrew. He told the detectives that Muldrew had purchased marijuana and then the two of them went to a liquor store to purchase cigarettes and a couple of Swisher cigars. While there, they saw [Stiggers] who asked for a ride to Hollingsworth Courts. [Stiggers] was riding directly behind Newsome in the back seat of the car, and during the ride, [Stiggers] apparently became aggressive and started yelling. Newsome stated that, at one point, he turned around and noticed that [Stiggers] was holding a small handgun. While following [Stiggers’s] directions into the Hollingsworth Courts neighborhood, Newsome testified that [Stiggers] told them to “say goodnight” and “say your prayers” because he was going to kill them. Newsome indicated that he did not think [Stiggers] was serious because they had known each other and been friends for years. Newsome explained that, as he pulled into an alley in the residential complex at [Stiggers]’s request, [Stiggers] shot him behind the right ear. He pointed out that he lost consciousness immediately, and when he regained consciousness, he noticed Muldrew slumped over in the front passenger seat. Newsome explained that he then crawled out of the vehicle to look for help, and a neighbor called the police. Newsome recognized [Stiggers]’s picture in a group of photos presented by Detectives Knowles and Cockrell, and he again identified him as the shooter. Stiggers, CACR 05-1399, slip op. at 1. After the court of appeals issued its mandate, on August 20, 2006, Stiggers filed his initial Rule 37.1 petition in Pulaski County Circuit Court. After several continuances due to issues related to Stiggers’s representation, on July 2, 2012, Stiggers filed an amended petition and the circuit court held a hearing that same day. On November 16, 2012, the circuit court denied Stiggers’s petition. Stiggers now brings this appeal and presents one issue for review: the circuit court erred by denying Stiggers’s Rule 37.1 petition because Stiggers received unconstitutional ineffective assistance of counsel when his counsel failed to interview 2 Cite as 2014 Ark. 184 and call certain witnesses. “On appeal from a circuit court’s ruling on a petitioner’s request for Rule 37 relief, this court will not reverse the circuit court’s decision granting or denying post-conviction relief unless it is clearly erroneous. E.g., Prater v. State, 2012 Ark. 164, at 8, 402 S.W.3d 68, 74. A finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed. Id., 402 S.W.3d at 74.” Mason v. State, 2013 Ark. 492, at 1–2, ___ S.W.3d ___, ___. Our standard of review requires that we assess the effectiveness of counsel under the two-prong standard set forth by the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668 (1984). Claims of ineffective assistance of counsel are reviewed under the following standard: A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. Burton v. State, 367 Ark. 109, 111, 238 S.W.3d 111, 113 (2006) (quoting Strickland, 466 U.S. at 687). The reviewing court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Id. The petitioner claiming ineffective assistance of counsel has the burden of overcoming that presumption by identifying 3 Cite as 2014 Ark. 184 the acts and omissions of counsel which, when viewed from counsel’s perspective at the time of trial, could not have been the result of reasonable professional judgment. See id. Therefore, Stiggers must first show that counsel’s performance fell below an objective standard of reasonableness and then that counsel’s errors actually had an adverse effect on the defense. Id. Stiggers must satisfy both prongs of the test, and it is not necessary to determine whether counsel was deficient if Stiggers fails to demonstrate prejudice as to an alleged error. Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam). Further, with respect to an ineffective-assistance-of-counsel claim regarding the decision of trial counsel to call a witness, such matters are generally trial strategy and outside the purview of Rule 37.1. Banks v. State, 2013 Ark. 147. Where a petitioner alleges ineffective assistance of counsel concerning the failure to call witnesses, it is incumbent on the petitioner to name the witness, provide a summary of the testimony, and establish that the testimony would have been admissible into evidence. Moten v. State, 2013 Ark. 503 (per curiam); Stevenson v. State, 2013 Ark. 302 (per curiam) (citing Hogan v. State, 2013 Ark. 223 (per curiam)). In order to demonstrate prejudice, the petitioner is required to establish that there was a reasonable probability that, had counsel performed further investigation and presented the witness, the outcome of the trial would have been different. See Carter v. State, 2010 Ark. 231, 364 S.W.3d 46 (per curiam). Trial counsel must use his or her best judgment to determine which witnesses will be beneficial to the client. Id. Nonetheless, such strategic decisions must still be supported by reasonable professional judgment. Id. Finally, “[w]hen assessing an attorney’s decision not to call a particular witness, it must be taken into account 4 Cite as 2014 Ark. 184 that the decision is largely a matter of professional judgment which experienced advocates could endlessly debate, and the fact that there was a witness or witnesses that could have offered testimony beneficial to the defense is not in itself proof of counsel’s ineffectiveness. Huls v. State, [301 Ark. 572, 785 S.W.2d 467 (1990)]; Dumond v. State, 294 Ark. 379, 743 S.W.2d 779 (1988).” Johnson v. State, 325 Ark. 44, 49, 924 S.W.2d 233, 236 (1996). We now turn to the sole issue raised by Stiggers. Stiggers’s allegation of ineffective assistance of counsel is that his trial counsel failed to interview four potential witnesses in preparation for Stiggers’s defense or call them as a witness at trial: Eddie Pride, Temika Donley, Kristopher Johnson, and Damika Mitchell. Stiggers contends that these witnesses would have supported his argument that another person, a person named “Jason,”1 was the shooter. He further asserts that the witnesses’ testimony was admissible under hearsay exceptions but that his trial counsel did not interview or call the witnesses at trial to determine what exceptions applied. Stiggers asserts that the witnesses’s testimony would have impeached the State’s witness. Finally, Stiggers asserts that he was prejudiced by his defense counsel’s failure to call these witnesses. Stiggers’s theory at trial was as follows: while he was purchasing drugs from the two victims, two unnamed men came up to the vehicle and shot the victims. Stiggers testified at trial that the two men approached the vehicle and let Stiggers run away prior to the shooting, and that as he was running away he heard the gunshots. In sum, Stiggers’s theory of the case was that someone else was the shooter. 1 The record does not reflect Jason’s last name. 5 Cite as 2014 Ark. 184 Prior to trial, on April 8, 2005, the circuit court conducted a pretrial hearing. The State made a Zinger motion to prohibit Stiggers from eliciting testimony from witnesses regarding “Jason” because the testimony was inadmissible hearsay.2 The circuit court granted the motion. Stiggers acquiesced to the circuit court’s ruling and agreed that the “Jason” testimony was hearsay, but explained that there could be a chain of events in the testimony where Stiggers could elicit such testimony. Stiggers complied with the circuit court’s ruling but reserved the right to approach the bench if such circumstances arose. At trial, defense counsel did not call Pride, Mitchell, Donley, or Johnson as witnesses. In his petition, Stiggers asserted that counsel was ineffective for not interviewing or calling the four witnesses, three of which he alleges would have provided “Jason” testimony. 2 A Zinger motion refers to Zinger v. State, 313 Ark. 70, 75–76, 852 S.W.2d 320, 323 (1993), where we held that the standard for admissibility of evidence tending to incriminate other persons in the crime being charged is as follows: A defendant may introduce evidence tending to show that someone other than the defendant committed the crime charged, but such evidence is inadmissible unless it points directly to the guilt of the third party. Evidence which does no more than create an inference or conjecture as to another’s guilt is inadmissible. [T]he rule does not require that any evidence, however remote, must be admitted to show a third party’s possible culpability . . . . [E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime. Id. (quoting State v. Wilson, 367 S.E.2d 589 (N.C. 1988) and People v. Kaurish, 802 P.2d 278 (Cal. 1990)). 6 Cite as 2014 Ark. 184 At the postconviction hearing, Stiggers introduced statements from two of the “Jason” witnesses: Donley and Johnson. The third “Jason” witness, Pride, also provided a statement; however, the circuit court did not accept Pride’s statement because Pride was not known at trial, there was no statement in the case file, and Pride had not testified at a previous hearing. Stiggers did not introduce a statement from Mitchell. At the Rule 37 hearing, defense counsel testified that he did not recall interviewing the four witnesses and did not call them as witnesses. Stiggers first asserts that Eddie Pride would have testified that Newsome told Pride that Stiggers was not the shooter but that it was “Jason.” Second, Stiggers asserts that Donley, Muldrew’s girlfriend, would have testified that Muldrew told her that “Jason” had threatened to kill Muldrew, Muldrew’s child, and the child’s mother. Third, Stiggers asserts that Johnson would have testified that “Jason” had threatened to kill Muldrew. He contends that Johnson would have testified that he overheard Muldrew on the phone with “Jason” four or five days before the shooting, and heard “Jason” discussing a “bad drug deal” or “theft of drugs” involving “Jason’s” drugs, and threatening to kill Muldrew and others. Fourth, Stiggers contends that Mitchell would have testified that she saw both victims prior to the shooting and that the vehicle’s lights were off, which was contrary to the State’s witness’s testimony. First, with regard to Pride, although Stiggers testified that he informed his counsel about Pride, defense counsel testified that prior to trial he had likely heard Pride’s name, but did not recall knowledge of Pride’s allegations that Newsome had told Pride that Stiggers was not the shooter. Defense counsel further testified that, 7 Cite as 2014 Ark. 184 that certainly would have been something . . . very important. . . . I don’t recall that ever being told to me. If I had been given that information, that would certainly would have been the diligent thing to do, to look for Mr. Pride. I would say if I had recognized that there was possibly a prior statement out there saying that someone else had done it coming from a living witness, I would have absolutely asked him about it. With regard to Donley and Johnson, defense counsel testified that after reviewing Donley and Johnson’s police statements in the file, he considered both witnesses’s testimony to be in the group of people he categorized as Zinger witnesses and concluded that their testimony would have been inadmissible hearsay. Defense counsel said “My analysis was that it didn’t come in because of Zinger and there were hearsay issues obviously, but beyond that, even beyond the hearsay, the Zinger issue kept it out.” Finally, with regard to Mitchell’s testimony, defense counsel testified that although he could “see there was some argument” that Mitchell’s testimony regarding the lights in the car being off at the time of the shooting would have helped Stiggers, he did not recall interviewing Mitchell or making a strategic decision to not interview her. Defense counsel testified that he cross-examined every witness that came near the vehicle regarding the facets of the vehicle, including the surviving witness, Newsome. Defense counsel further testified that there “was a huge amount of discrepancies” in the testimony from witnesses regarding whether the lights were on or off and that he cross-examined every witness. Here, Stiggers fails to substantiate his claim that counsel was ineffective based on the failure to interview or call the “Jason” witnesses. Stiggers has failed to meet his burden under the first prong of Strickland because he has not demonstrated that his counsel’s performance fell below an objective standard of reasonableness. Additionally, Stiggers has failed to demonstrate 8 Cite as 2014 Ark. 184 that the “Jason” testimony would have been admissible hearsay and makes conclusory allegations that it may have fit under an exception to hearsay. Further, the record supports that defense counsel’s decision to not interview or call the witnesses was based on reasonable professional judgment. The testimony was inadmissible pursuant to Zinger, as it did no more than create an inference or conjecture as to “Jason’s” involvement, the testimony was hearsay, and Stiggers failed to demonstrate that it was admissible. Nor has Stiggers met the second prong under Strickland because he has failed to demonstrate that he was prejudiced by defense counsel’s failure to interview the witnesses. Stiggers must do more than allege prejudice; he must demonstrate it with facts. Walton v. State, 2013 Ark. 254 (per curiam). Here, Stiggers provides no evidence that he suffered any prejudice as a result of counsel’s failure to call the “Jason” witnesses. We find no merit in Stiggers’s claim regarding Pride, Donley, or Johnson. Finally, with regard to Mitchell’s testimony, as discussed above, our law requires that Stiggers name the witness, provide a summary of the testimony, and establish that the testimony would have been admissible into evidence. Moten v. State, supra. The objective in reviewing an assertion of ineffective assistance of counsel concerning the failure to call certain witnesses is to determine whether this failure resulted in actual prejudice that denied the petitioner a fair trial. Woody v. State, 2009 Ark. 413 (per curiam). In order to demonstrate prejudice, Stiggers must establish that there was a reasonable probability that, had counsel performed further investigation and presented the witness, the outcome of the trial would have been different. Id. While Stiggers claims that Mitchell’s testimony regarding the vehicle would have discredited Newsome’s testimony, defense counsel testified that he cross-examined every 9 Cite as 2014 Ark. 184 witness that came into contact with the vehicle. Based on the record, we are not persuaded that had defense counsel interviewed and called Mitchell as a witness regarding the lights of the car, the outcome of the trial would have been different. Stiggers simply did not provide any support for his conclusory claims that counsel was ineffective and made no showing that counsel committed any specific error that prejudiced the defense. See Johnson v. State, 325 Ark. 44, 49, 924 S.W.2d 233, 236 (1996) (“[T]he fact that there was a witness or witnesses that could have offered testimony beneficial to the defense is not in itself proof of counsel’s ineffectiveness.”). In reviewing the record before us, we conclude that Stiggers has not met his burden. Based on the discussion above, we do not find that the circuit court erred. Affirmed. Ronald L. Davis, Jr. Law Firm, PLLC, by: Ronald L. Davis, Jr., for appellant. Dustin McDaniel, Att’y Gen., by: Nicana C. Sherman, Ass’t Att’y Gen., for appellee. 10
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994 F.2d 1433 Bankr. L. Rep. P 75,277In re Gilbert G. BEEZLEY, Debtor.Gilbert G. BEEZLEY, Appellant,v.CALIFORNIA LAND TITLE COMPANY, Appellee. No. 91-55809. United States Court of Appeals,Ninth Circuit. Submitted Oct. 6, 1992.*Decided June 4, 1993. Gilbert G. Beezley, pro se. Mark E. Rohatiner, Ellen L. Frank, Schneider, Goldberg, Rohatiner & Yuen, Beverly Hills, CA, for appellee. Appeal from the Ninth Circuit Bankruptcy Appellate Panel. Before O'SCANNLAIN and RYMER, Circuit Judges, and ZILLY,** District Judge. PER CURIAM: 1 Debtor Gilbert G. Beezley appeals the decision of the Ninth Circuit BAP, affirming the bankruptcy court's denial of his motion to reopen his bankruptcy case under 11 U.S.C. § 350(b). We have jurisdiction pursuant to 28 U.S.C. § 158(d), and we affirm. 2 Beezley argues that the bankruptcy court abused its discretion by failing to grant his motion to reopen his case. See In re Herzig, 96 B.R. 264, 266 (9th Cir. BAP 1989) (bankruptcy court's refusal to reopen a closed case under 11 U.S.C. § 350(b) reviewed for an abuse of discretion). We disagree. Based on the assumption that amendment was necessary to discharge the debt, Beezley sought to add an omitted debt to his schedules. Beezley's, however, was a no asset, no bar date Chapter 7 case. After such a case has been closed, dischargeability is unaffected by scheduling; amendment of Beezley's schedules would thus have been a pointless exercise. See American Standard Ins. Co. v. Bakehorn, 147 B.R. 480, 483 (N.D.Ind.1992); In re Stecklow, 144 B.R. 314, 317 (Bankr.D.Md.1992); In re Tucker, 143 B.R. 330, 334 (Bankr.W.D.N.Y.1992); In re Peacock, 139 B.R. 421, 422 (Bankr.E.D.Mich.1992); In re Thibodeau, 136 B.R. 7, 10 (Bankr.D.Mass.1992); In re Hunter, 116 B.R. 3, 5 (Bankr.D.D.C.1990); In re Mendiola, 99 B.R. 864, 865 (Bankr.N.D.Ill.1989). If the omitted debt is of a type covered by 11 U.S.C. § 523(a)(3)(A), it has already been discharged pursuant to 11 U.S.C. § 727. If the debt is of a type covered by 11 U.S.C. § 523(a)(3)(B), it has not been discharged, and is non-dischargeable.1 In sum, reopening here in order to grant Beezley's request would not have "accord[ed] relief to" Beezley; thus, there was no abuse of discretion. 3 AFFIRMED. O'SCANNLAIN, Circuit Judge, concurring: 4 The simple question with which we are presented--whether the bankruptcy court abused its discretion by denying the debtor's motion to reopen--requires, in my view, more than a simple answer. I write separately to address certain matters that the per curiam opinion does not discuss, but which are squarely presented on the record before us and implicate important principles of bankruptcy law. 5 * Beezley filed for bankruptcy under Chapter 7 on June 10, 1987. Because he had no assets available for distribution to his creditors in bankruptcy, no bar date was set by the court establishing a deadline for creditors to file proofs of claim. 6 Three years earlier, California Land Title Co. ("Cal Land") had obtained a default judgment against Beezley in California state court arising out of a 1979 transaction in which Beezley was the seller and Cal Land the title insurer of certain real property. Beezley made no mention of Cal Land's claim or of its judgment against him in any of his schedules. Consequently, Cal Land did not receive notice of Beezley's bankruptcy. Beezley received his discharge on November 6, 1987, and his case was thereafter closed. 7 In January 1990, Beezley moved to reopen his bankruptcy case for the purpose of amending his schedules to add the omitted debt to Cal Land. Cal Land filed a memorandum with the bankruptcy court in opposition to Beezley's motion to reopen, advising the court that Cal Land would seek to establish that its claim was nondischargeable. The bankruptcy court held a hearing, at the conclusion of which it denied Beezley's motion, citing the case of In re Stark, 717 F.2d 322 (7th Cir.1983) (per curiam). The Bankruptcy Appellate Panel ("BAP") subsequently affirmed by memorandum, citing the same authority. II 8 The source of the bankruptcy court's power to reopen a closed case is section 350(b).1 This section gives the court discretion to reopen a case "to administer assets, to accord relief to the debtor, or for other cause." The question posed by this appeal is whether the bankruptcy court abused that discretion in denying Beezley's motion to reopen. See In re Herzig, 96 B.R. 264, 266 (9th Cir. BAP 1989) (decision on motion to reopen reviewed for abuse of discretion). Answering this question is a complicated affair, and requires close attention to the difficult language of sections 523 and 727 of the Bankruptcy Code. 9 * Section 727(b) of the Bankruptcy Code states in part: "Except as provided in section 523 of this title, a discharge under subsection (a) of this section discharges the debtor from all debts that arose before the date of the order for relief under this chapter [i.e., the date of the bankruptcy filing]...." "The operative word is 'all'. There is nothing in Section 727 about whether the debt is or is not scheduled. So far as that section is concerned, a pre-bankruptcy debt is discharged, whether or not it is scheduled." In re Mendiola, 99 B.R. 864, 865 (Bankr.N.D.Ill.1989). See In re Stecklow, 144 B.R. 314, 317 (Bankr.D.Md.1992) ("breadth of the discharge" under § 727 is "comprehensive"); In re Thibodeau, 136 B.R. 7, 8 (Bankr.D.Mass.1992) ("s 727(b) itself makes no exception for unlisted debts"). Thus, unless section 523 dictates otherwise, every prepetition debt becomes discharged under section 727. Section 523(a) provides in part: 10 (a) A discharge under section 727 ... of this title does not discharge an individual debtor from any debt-- 11 (3) neither listed nor scheduled ... in time to permit-- 12 (A) if such debt is not of a kind specified in paragraph (2), (4), or (6) of this subsection, timely filing of a proof of claim, unless such creditor had notice or actual knowledge of the case in time for such timely filing; or 13 (B) if such debt is of a kind specified in paragraph (2), (4), or (6) of this subsection, timely filing of a proof of claim and timely request for a determination of dischargeability of such debt under one of such paragraphs, unless such creditor had notice or actual knowledge of the case in time for such timely filing and request[.] 14 Unscheduled debts are thus divided into two groups: those that are "of a kind specified in paragraph (2), (4), or (6) of this subsection," and those that are not. Loosely speaking, the paragraphs in question describe debts arising from intentional wrongdoing of various sorts (respectively, fraud, fiduciary misconduct, and the commission of malicious torts). What distinguishes these from all other debts is that, under section 523(c) and rule 4007(c), a creditor must file a complaint in the bankruptcy court within 60 days after the date established for the first meeting of creditors in order to assert their nondischargeability. Failure to litigate the dischargeability of these sorts of debts right away disables the creditor from ever doing so; an intentional tort debt will be discharged just like any other. 15 Section 523(a)(3) threatens nondischargeability in order to safeguard the rights of creditors in the bankruptcy process. The difference between subparagraphs (A) and (B) reflects the different rights enjoyed by and requirements imposed upon different kinds of creditors. For most creditors, the fundamental right enjoyed in bankruptcy is to file a claim, since this is the sine qua non of participating in any distribution of the estate's assets. Section 523(a)(3)(A) safeguards this right by excepting from discharge debts owed to creditors who did not know about the case in time to file a claim. By contrast, for creditors holding intentional tort claims the salient rights are not only to file a claim but also to secure an adjudication of nondischargeability. Thus, section 523(a)(3)(B) excepts intentional tort debts from discharge notwithstanding the creditor's failure to file a timely complaint under section 523(c) if the creditor did not know about the case in time to file such a complaint (even if it was able to file a timely proof of claim). 16 With this in mind, the convoluted language of section 523(a)(3) can be paraphrased as follows: 17 (a) A discharge does not cover-- 18 (3) an unscheduled debt if-- 19 (A) with respect to a debt not covered by § 523(c), the failure to schedule deprives the creditor of the opportunity to file a timely claim, or 20 (B) with respect to an intentional tort debt covered by § 523(c), the failure to schedule deprives the creditor of the opportunity to file a timely claim or a nondischargeability complaint. B 21 In applying section 523(a)(3) to the case before us, it is preferable to begin with subsection (A). 22 As noted, the entire thrust of subparagraph (A) is to protect the creditor's right to file a proof of claim, and so to participate in any distribution of the assets of the estate. However, "[i]n a case without assets to distribute the right to file a proof of claim is meaningless and worthless." Mendiola, 99 B.R. at 867. The bankruptcy rules therefore permit the court to dispense with the filing of proofs of claim in a no-asset case. 23 In a chapter 7 liquidation case, if it appears from the schedules that there are no assets from which a dividend can be paid, the notice of the meeting of creditors may include a statement to that effect; that it is unnecessary to file claims; and that if sufficient assets become available for the payment of a dividend, further notice will be given for the filing of claims. 24 Bankr.Rule 2002(e). 25 When a no-dividend notice under Rule 2002(e) is sent out, an exception is made to the basic rule requiring proofs of claim to be filed within 90 days after the date established for the first meeting of creditors. Under this exception, creditors need not file a proof of claim unless and until the clerk sends notice that non-exempt assets have been located which may permit a dividend to be paid. Bankr.Rule 3002(c)(5). In practice, "[t]he exception has now subsumed the rule, so that in most cases there is no time limit (bar date) set by the Clerk's office for creditors to file their proofs of claim." In re Corgiat, 123 B.R. 388, 389 (Bankr.E.D.Cal.1991). See In re Tucker, 143 B.R. 330, 332 (Bankr.W.D.N.Y.1992). 26 The critical point here is that in most cases filed under Chapter 7 (i.e., no asset, no bar date cases), "the date to file claims is never set and thus § 523(a)(3)(A) is not triggered." In re Walendy, 118 B.R. 774, 775 (Bankr.C.D.Cal.1990). That is, in a no asset, no bar date case, section 523(a)(3)(A) is not implicated "because there can never be a time when it is too late 'to permit timely filing of a proof of claim.' " Mendiola, 99 B.R. at 867. See In re Tyler, 139 B.R. 733, 735 (D.Colo.1992); In re Peacock, 139 B.R. 421, 424 (Bankr.E.D.Mich.1992); Walendy, 118 B.R. at 776. 27 "Thus, in the typical no asset Chapter 7 case, where the no dividend statement of [rule] 2002(e) is utilized by the clerk and no claims bar date set, the prepetition dischargeable claim of an omitted creditor, being otherwise unaffected by § 523, remains discharged. In other words, in the typical Chapter 7 case, the debtor's failure to list a creditor does not, in and of itself, make the creditor's claim nondischargeable." Corgiat, 123 B.R. at 391. Stated differently, where section 523 does not except a prepetition debt from discharge, the debt remains within the scope of the discharge afforded by section 727. Scheduling, per se, is irrelevant. See Mendiola, 99 B.R. at 867 ("since Section 523(a)(3)(A) does not apply, the debts the Debtor seeks to add to the schedules are already discharged, even though they were not listed or scheduled"); accord American Standard Ins. Co. v. Bakehorn, 147 B.R. 480, 487 (N.D.Ind.1992); Tyler, 139 B.R. at 735; Stecklow, 144 B.R. at 315; Tucker, 143 B.R. at 334; Peacock, 139 B.R. at 424; Thibodeau, 136 B.R. at 8. Since dischargeability is unaffected by scheduling in a no asset, no bar date case, "reopening the case merely to schedule the debt is for all practical purposes a useless gesture." In re Hunter, 116 B.R. 3, 5 (Bankr.D.D.C.1990); accord American Standard, 147 B.R. at 483 (of "no legal effect"); Stecklow, 144 B.R. at 317 ("futile"); Tucker, 143 B.R. at 334 ("unnecessary" and "unwarranted"); Peacock, 139 B.R. at 422 ("pointless"); Thibodeau, 136 B.R. at 10 ("meaningless"). 28 Similarly, even if an omitted debt falls under section 523(a)(3)(B), no purpose is served by reopening solely in order to amend the schedules; scheduling, per se, is irrelevant to dischargeability even under this subparagraph once a case is closed. As noted above, section 523(a)(3)(B) provides that, if the debt flows from an intentional tort "of a kind specified" in the relevant paragraphs, the debtor's failure to schedule in time to provide notice to the creditor of the need to seek an adjudication of dischargeability is conclusive (at least in the absence of actual knowledge of the bankruptcy on the part of the creditor). The debt is not discharged. "Scheduling makes no difference to outcome. 'Reopening a case does not extend the time to file complaints to determine dischargeability. Either the creditor had actual, timely notice of the [case] or he didn't. Amending the schedules will not change that.' " Mendiola, 99 B.R. at 868 (quoting In re Karamitsos, 88 B.R. 122, 123 (Bankr.S.D.Tex.1988)); accord American Standard, 147 B.R. at 484; Thibodeau, 136 B.R. at 10. III 29 Beezley moved to reopen his bankruptcy case in order to add the omitted debt to Cal Land to his schedules, apparently in the mistaken belief that by amending his schedules he would discharge the debt. Cal Land, upon receiving notice of Beezley's motion, vigorously opposed it, also, apparently, under the mistaken impression that the listing of the previously omitted debt would accomplish its discharge. As the analysis set forth above shows, however, because Beezley's was a no-asset, no-bar-date Chapter 7 proceeding, the amendment of Beezley's schedules, in and of itself, could not possibly have had any effect on the status of his obligation to Cal Land. Either the debt was long ago discharged by the operation of sections 523 and 727 or it was not. 30 Beezley's request for leave to amend his schedules was therefore a request for that which is legally irrelevant. The bankruptcy court was surely not required to involve itself in such a pointless exercise. The court thus could, without abuse of discretion, have simply rejected Beezley's motion out of hand. See Mendiola, 99 B.R. at 867. 31 Were this what the bankruptcy court did in fact, I would feel no need to add to what is said in our per curiam opinion. But it did not do so, and the substance of the bankruptcy court's actual ruling (and the BAP's affirmance) reveals, I submit, a misconception that we should not allow to pass uncorrected. 32 The bankruptcy court denied Beezley's motion only after it concluded that the omission of Cal Land from Beezley's schedules was not inadvertent, but was the result of an "intentional design" on Beezley's part. The court reached this conclusion based on the evidence provided by a letter that Beezley had written in 1983 and sent to the state court in which Cal Land's suit against him was then pending. The letter, signed by Beezley, is addressed "To Whom it May Concern," and bears the caption, "Re: Ventura County Superior Court Filing No. 74389, Cal Land Title v. G. Beezley or Air Trans Systems." 33 The bankruptcy court observed that "the existence of the lawsuit and your reference to the lawsuit [in the letter] evidences your knowledge that [Cal Land] want[ed] money from you. It's clear that you knew they had a claim against you." It was this that persuaded the court that the case should not be reopened. "There is other authority from other circuits that states that amending--reopening this case--reopening the case to amend the schedules to add omitted creditors is appropriate where there is no evidence of fraud or intentional design behind the omission. And that's In Re: Stark out of the 7th Circuit. It's a circuit level case."Whatever else might be said, it is incontrovertible that the bankruptcy court did not rely on the reasoning that underlies the per curiam opinion in concluding that Beezley's motion should be denied. Rather, both the bankruptcy court in denying the motion, and the BAP in affirming the denial, treated the rule in Stark as authoritative. Why did the bankruptcy court not simply reject Beezley's motion out of hand as a pointless waste of time? Why did the court feel the need to rely upon authority from another circuit to decide Beezley's motion? 34 The answer, I believe, is that the bankruptcy court thought it was adjudicating the dischargeability of Beezley's debt when it denied his motion to reopen and amend his schedules. That is, the bankruptcy court, just like Beezley and Cal Land, proceeded here on the basis of the erroneous assumption that it would be necessary (and sufficient) for Beezley to reopen the case and add Cal Land to his schedules in order to discharge the omitted debt. 35 This is apparent from examining In re Stark itself. In June 1980, the Starks incurred certain hospital bills. In August 1980, they filed a bankruptcy petition. No bar date was set, and no assets distributed. Because the Starks believed that the hospital bills would be paid by their insurance company, they did not include the hospital in their schedule of creditors. The Starks received their discharge in November 1980. As it happened, however, the hospital bills were not paid by the insurance company. The hospital obtained a judgment against the Starks in November 1981. The Starks then moved to reopen their bankruptcy case to amend their schedule of creditors to include the hospital. The Seventh Circuit ruled that they should be permitted to do so. 36 As explained above, there was no need whatsoever to "permit" the Starks to amend their schedules. Since theirs was a no-asset, no-bar-date case, the Stark's debt to the hospital was discharged by the operation of section 727 along with all their other prepetition debts in November 1980. The Seventh Circuit panel that decided the case failed to recognize this. Indeed, the panel believed that if section 523 were literally applied, the Starks' debt would have been excepted from discharge. In this respect, the panel stated that it agreed with the district court that "section 523(a) should not be mechanically applied to deprive a debtor of a discharge in a no asset case...." Id. at 323. 37 Thus the Stark panel believed that it had to "exercise its equitable powers" in order to allow the debtors to discharge their omitted debt. Id. Further the panel believed that exercising those powers to permit the debtors to amend their schedules would achieve the desired end. This explains the holding in the case: "In a no-asset bankruptcy where notice has been given [that no bar date will be set], a debtor may reopen the estate to add an omitted creditor where there is no evidence of fraud or intentional design." Id. at 324. 38 The analysis presented above clearly demonstrates that Stark misstates the law. Stark treats the question whether to reopen a closed no-asset, no-bar-date case to amend the schedule of creditors as equivalent to the question whether to permit discharge of the omitted debt.2 But, again, scheduling, per se, is irrelevant. The legal standard articulated in Stark is simply incorrect, and I would disapprove reliance on it in the bankruptcy courts of this circuit. IV 39 The damage done by an incautious reliance on Stark is far from trivial. By applying Stark, both the bankruptcy court and the BAP effectively held that Beezley was not entitled to litigate the question whether his debt to Cal Land had been discharged by the operation of sections 523 and 727 unless his omission of Cal Land from his schedules was in good faith. Such a holding interposes an equitable barrier between the debtor and his discharge that Congress simply did not enact in the Bankruptcy Code. Nowhere in section 523(a)(3) is the reason why a debt was omitted from the bankruptcy schedules made relevant to the discharge of that debt.3 Courts are not free to condition the relief Congress has made available in the Bankruptcy Code on factors Congress has deliberately excluded from consideration.4 40 It cannot be overemphasized that we deal here with matters that are absolutely fundamental to the integrity of the Bankruptcy Code: the balance struck between the rights of creditors on the one hand, and the policy of affording the debtor a fresh start on the other. How to strike that balance is an inordinately difficult question--a question of public policy--as to which reasonable minds may and quite frequently do differ. Our task is, perhaps, a relatively easier one, for we have only to apply the law as Congress has written it. What Congress deemed a proper balancing of the equities as between debtor and creditor with respect to unlisted debts it has enacted in section 523(a)(3) of the Bankruptcy Code. It is not for the courts to restrike that balance according to their own lights. 41 Yet this, albeit inadvertently, is what the panel in Stark did. Stark stated that a debtor must prove his good faith before the discharge of an omitted debt will be recognized. There, this rule passed unnoticed as a sort of boilerplate--the Starks' good faith was never in question. As applied by the bankruptcy court in the circumstances of this case, however, this rule operated to supplant the analysis mandated by section 523, and to substitute in its stead a test involving equitable considerations wholly foreign to that section. See Peacock, 139 B.R. at 427 ("whether or not the debtor was reckless in omitting [the] claim is of no moment" with respect to the discharge of the omitted debt). The result is fundamental error affecting significant rights under the Bankruptcy Code.5 42 The analysis the Code requires is, I submit, as follows: Because Beezley's was a noasset, no-bar-date case, section 523(a)(3)(A) does not bar the discharge of his debt to Cal Land under section 727(b). Cal Land has alleged, however, that Beezley committed fraud in connection with the transaction that was the subject of its lawsuit against him, and that the debt evidenced by the default judgment it obtained against Beezley is therefore nondischargeable under section 523(a)(3)(B). Had Beezley listed this debt in his bankruptcy schedules, Cal Land would have been required under Bankruptcy Rule 4007(c) to litigate this nondischargeability question "within 60 days following the first date set for the meeting of creditors," which had long since passed when this litigation commenced. However, because Beezley failed to schedule the debt, Bankruptcy Rule 4007(b) affords Cal Land the right to litigate dischargeability outside the normal time limits, again in accordance with section 523(a)(3)(B). See American Standard, 147 B.R. at 484 ("In effect, a debtor who fails to list a creditor loses the jurisdictional and time limit protections of Section 523(c) and Rule 4007(c)."). See also In re Lochrie, 78 B.R. 257, 259-60 (9th Cir. BAP 1987). 43 This is the only right Cal Land can claim by virtue of its omission from Beezley's schedules. In particular, Cal Land cannot escape the need to prove nondischargeability merely because Beezley's failure to list his debt to Cal Land may have been intentional or may have prejudiced its ability to show that Beezley committed fraud years ago, as the holding in Stark would suggest. Stark has no place in the analysis of the matter at hand. IV 44 Faced with Beezley's motion on the one hand, and Cal Land's opposition on the other, I believe the bankruptcy court could have construed the matter as a request under Bankruptcy Rule 4007(b) for a determination of dischargeability--for this, as the court itself recognized, was really what both parties wanted.6 This, however, is now of little moment from the standpoint of the litigants. The important point is that whether Beezley's debt to Cal Land is in fact nondischargeable remains to be adjudicated. 45 In sum, Stark introduces a notion of "good faith" into the Bankruptcy Code's finely tuned system for determining the dischargeability of omitted debts. Because adequate and explicit means for determining dischargeability are provided in the Code itself, the bankruptcy courts of this circuit should place no reliance on Stark. * The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed.R.App.P. 34(a), Ninth Circuit Rule 34-4 ** The Honorable Thomas S. Zilly, United States District Judge for the Western District of Washington, sitting by designation 1 We express no opinion as to whether the omitted debt was or was not discharged 1 All references are to the Bankruptcy Code, Title 11, United States Code 2 That the Stark case proceeds on this erroneous premise has been repeatedly recognized in the bankruptcy courts. See In re Peacock, 139 B.R. 421, 426 & n. 9 (Bankr.E.D.Mich.1992) (warning against "misplaced reliance on confusing comments in Stark ": "[T]he train began to run off the track when the lawyers in Stark misperceived the issue. The Seventh Circuit failed to put the train back on the track in time to prevent the analytical chaos which has ensued."); In re Thibodeau, 136 B.R. 7, 10 (Bankr.D.Mass.1992) (Stark "is based upon the unexamined assumption ... that in a no-asset case where no claim filing deadline has been fixed, a debt must be listed in order to be discharged"); In re Guzman, 130 B.R. 489, 491 n. 4 (Bankr.W.D.Tex.1991) (Stark "erroneously assumed that, unless the case were re-opened as the debtor requested, the creditor's claim would not be discharged"); In re Musgraves, 129 B.R. 119, 121 n. 6 (Bankr.W.D.Tex.1991) (same); In re Bulbin, 122 B.R. 161, 161 (Bankr.D.D.C.1990) (refusing to follow "dicta in [Stark ] which assumed for purposes of decision and without discussion that listing of an omitted creditor was necessary to make the omitted creditor's claim dischargeable"); In re Hunter, 116 B.R. 3, 5 (Bankr.D.D.C.1990) (same); In re Crull, 101 B.R. 60, 61 (Bankr.W.D.Ark.1989) (Stark "incorrectly assume[d] that if a case is reopened and an omitted creditor's claim is listed by amendment, the discharge automatically and retroactively applies"); In re Mendiola, 99 B.R. 864, 868 (Bankr.N.D.Ill.1989) ("it is clear from the opinion in Stark that the Court assumed that the purpose that would be served by the reopening and addition of the omitted creditor was the discharge of that creditor's claim"); In re Anderson, 72 B.R. 495, 496 (Bankr.D.Minn.1987) (Stark is "based on false premises regarding the nature and effect of a discharge") 3 There need be no concern that applying section 523(a)(3) according to its terms will encourage debtors to ignore their obligation to list all claims in their schedules. A debtor must declare under penalty of perjury that the statements made in his schedules are true and correct. A debtor who knowingly and fraudulently omits a creditor thus risks global denial or revocation of his discharge--that is, the withholding of all bankruptcy relief--under section 727 of the Bankruptcy Code. See 11 U.S.C. §§ 727(a)(4)(A), 727(d)(1). In addition, knowing and fraudulent misstatements in connection with a bankruptcy proceeding may be penalized by up to five years in prison and a $5,000 fine. See 18 U.S.C. § 152 4 That this was a deliberate congressional choice is plain from the legislative history of the Bankruptcy Reform Act of 1978, Pub.L. No. 95-598, 92 Stat. 2549. The Senate Report notes that the new section 523(a)(3) "follows current law, but clarifies some uncertainties generated by the case law construing 17a(3) [of the old Bankruptcy Act]." S.Rep. No. 95-989, 95th Cong., 2d Sess. 78-79, reprinted in 1978 U.S.C.C.A.N. 5787, 5864. The formal statements of both the House and Senate leaders responsible for the final shape of the new Bankruptcy Code leave no doubt as to which "uncertainties" were intended to be clarified: "Section 523(a)(3) ... is intended to overrule Birkett v. Columbia Bank, 195 U.S. 345, 25 S.Ct. 38, 49 L.Ed. 231 (1904)." 124 Cong.Rec. H11089 (Sept. 28, 1978), reprinted in 1978 U.S.C.C.A.N. 6436, 6522 (statement of Rep. Edwards); 124 Cong.Rec. S17406 (Oct. 6, 1978), reprinted in 1978 U.S.C.C.A.N. 6505, 6522 (statement of Sen. DeConcini) In Birkett, the Supreme Court construed the predecessor of section 523(a)(3), which excepted from discharge any debt "not ... duly scheduled in time for proof and allowance, ... unless [the] creditor had notice or actual knowledge of the proceedings in bankruptcy." The Court stated that: Actual knowledge of the proceedings contemplated by the section is a knowledge in time to avail a creditor of the benefits of the law--in time to give him an equal opportunity with other creditors--not a knowledge that may come so late as to deprive him of participation in the administration of the affairs of the estate or to deprive him of dividends.... That the law should give a creditor remedies against the estate of a bankrupt, notwithstanding the neglect or default of the bankrupt, is natural. The law would, indeed, be defective without them. It would also be defective if it permitted the bankrupt to experiment with it--to so manage and use its provisions as to conceal his estate, deceive or keep his creditors in ignorance of his proceeding without penalty to him. 195 U.S. at 350, 25 S.Ct. at 39 (emphasis added). The legislative history of section 523(a)(3) declares unambiguously that Birkett was intended to be overruled. Assuming that we require such an explicit directive before we will be moved to heed the clear command of the Bankruptcy Code itself, I see no way to avoid the force of this one. Congress has expressly disapproved the importation of equitable notions of a debtor's good faith or a creditor's fair opportunity to participate in the bankruptcy process into the interpretation and analysis of section 523(a)(3). See Mendiola, 99 B.R. at 869-70 ("[T]he clear language of Section 523(a) is not an aberration, but represents a Congressional policy choice. Congress could have excepted from the debtor's discharge debts that were omitted, intentionally or otherwise, from the schedules. Congress might simply have continued pre-Code law.... Instead, the legislative history shows that Congress expressly overruled that prior law and created the narrow exception found in § 523(a)(3)...."). 5 The equitable rule applied in Stark to a no-asset, no-bar-date case was originally developed for use in a very different kind of bankruptcy. The incautious use of such a standard outside the context in which it originated is at the heart of the problems we confront here The typical Chapter 7 bankruptcy is the no-asset, no-bar-date case. In some instances, however, the debtor has no assets to distribute to creditors, but a bar date is set by the clerk's office. See In re Corgiat, 123 B.R. 388, 390-91 (Bankr.E.D.Cal.1991) (recognizing the importance of this distinction); In re Walendy, 118 B.R. 774, 775-76 (Bankr.C.D.Cal.1990) (same). In such a case, section 523(a)(3)(A) operates with respect to an omitted creditor as follows: a deadline for filing claims is established; the omitted creditor receives no notice of the debtor's bankruptcy; the deadline for filing claims passes; the debtor's case is closed, with no assets having been distributed; the omitted creditor, technically, has been deprived of the right protected by section 523(a)(3)(A), i.e., the right to file a timely proof of claim; thus, by operation of the plain language of the Bankruptcy Code, the omitted debt would appear to be excepted from discharge. Many courts, however, have felt that this is an inequitable result. After all, since no assets were distributed, the omitted creditor has suffered no real prejudice because of its inability to file a timely proof of claim. Such a creditor is in exactly the same situation as the creditors that did file. Allowing this creditor to retain its pre-bankruptcy claim against the debtor seems to amount to an undeserved windfall, for the creditor is left in a better position than all other creditors merely by virtue of having been left off the debtor's schedules. These courts have thus recognized an equitable exception to the operation of section 523(a)(3). The exception, usually associated with the case of Robinson v. Mann, 339 F.2d 547 (5th Cir.1964), provides that in a no-asset bankruptcy where a bar date was set, a debtor may reopen the case to add an omitted creditor to its schedules nunc pro tunc where there is no evidence of fraud or intentional design, or any material prejudice to the creditor. In this context, technically, it is indeed necessary to reopen the case and add the omitted creditor to the schedules, for only this permits the relation back nunc pro tunc of the scheduling. This procedure is obviously a legal fiction, but it provides a means of avoiding the results of a literal application of section 523(a)(3)(A), thus discharging the omitted debt and fostering the debtor's fresh start. A comparison of Stark and Robinson shows that the rules they announce are, in fact, identical. Yet there is no need for such a rule in a no-asset, no-bar-date Chapter 7, hence no justification for its application. In the Robinson-type case, the debtor, in effect, asks the bankruptcy court to do him a favor, to intercede on his behalf so as to shield him from the operation of the plain language of the Code, and so permit the discharge of his omitted debt. It is entirely appropriate in this context to impose an equitable requirement of good faith on the debtor: if a court is to invoke its equity powers to do the debtor a favor it is not too much to ask that his hands be clean. In a no-asset, no-bar-date case like this one, however, the debtor needs no favors from the bankruptcy court, since his omitted debt will be discharged by the straightforward operation of section 523(a)(3). Applied here, what developed as an equitable condition precedent to the court's granting the debtor additional relief beyond that afforded by the Bankruptcy Code becomes an equitable barrier to the debtor's receiving the relief the Code itself expressly grants. I express no opinion on the propriety of the equitable exception announced in Robinson as applied in its proper context. A debate is currently raging among the bankruptcy courts of this circuit regarding this very issue. Compare In re Laczko, 37 B.R. 676, 678-79 (9th Cir. BAP 1984) (rejecting Robinson and adopting "strict" view of § 523(a)(3)), aff'd without op., 772 F.2d 912 (9th Cir.1985), with In re Brosman, 119 B.R. 212, 213-16 (Bankr.D.Alaska 1990) (refusing to follow Laczko ). My point is simply that, whereas Robinson contravenes the plain language of the Code for what is perhaps a good reason, Stark contravenes the Code for no reason whatsoever. 6 The Memorandum filed by Beezley (acting, let us recall, pro se) in support of his motion to reopen in the bankruptcy court requested "relief from a judgment by court after default ... by reopening the estate and permitting scheduling and listing of this debt." So styled, I must agree that the denial of this motion by the bankruptcy court did not constitute an abuse of discretion, for the reasons stated in the per curiam opinion--that is, that the "relief" requested (amendment of the schedule of creditors) was no relief at all
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137 F.3d 326 AVONDALE INDUSTRIES, INC., Petitioner,v.Rodney PULLIAM; Director, Office of Worker's CompensationPrograms, U.S. Department of Labor, Respondents. No. 97-60569 Summary Calendar. United States Court of Appeals,Fifth Circuit. March 31, 1998. Joseph J. Lowenthal, Jr., R. Scott Jenkins, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, LA, for Petitioner. Joseph Paul Demarest, Favret, Demarest, Russo & Lutkewitte, New Orleans, LA, for Pulliam. Thomas O. Shepherd, Jr., Clerk, Benefits Review Bd., Washington, DC, Carol DeDeo, Assoc. Sol., U.S. Dept. of Labor, Dir., Office of Workers Comp. Programs, Washington, DC, for Director, Office of Worker's Compensation Programs, U.S. Dept. of Labor. Petition for Review of an Order of the Benefits Review Board. Before DUHE, DeMOSS and DENNIS, Circuit Judges. DUHE, Circuit Judge: 1 Appellee injured his shoulder and sued Appellant, his former employer, for permanent and total disability payments under the Longshore and Harbor Workers' Compensation Act. The administrative law judge awarded him permanent, partial disability payments and calculated his wage earning capacity by averaging the hourly wage of five jobs which Appellant had found for Appellee. The Benefits Review Board affirmed. The res nova issue presented is the proper method of computing post-injury wage earning capacity when the employer locates more than one suitable job for the claimant. We affirm the ALJ's use of averaging. 2 * In May 1992, Rodney Pulliam ("Pulliam"), a sheet metal mechanic for Avondale Shipyards ("Avondale"), fell off a scaffold and injured his shoulder. Pulliam continued to work for Avondale until July when he quit. 3 In February 1994, Pulliam underwent surgery on his shoulder but was not able to return to work until January 1995. In the meantime, Avondale hired a certified rehabilitation counselor to analyze Pulliam's ability to be re-employed. The counselor conducted a labor market survey to identify jobs within Pulliam's mental and physical capabilities as well as his geographic area. The counselor found forty-four such jobs, none of which Pulliam secured. 4 Pulliam sued Avondale for permanent, total disability compensation under the Longshore and Harbor Workers' Compensation Act ("LWHCA"). In attempting to establish total disability, Pulliam argued to the administrative law judge ("ALJ") that he had diligently tried to obtain other employment, but that no one would hire him. He pointed to the fact that he contacted all but five1 of the prospective employers. The ALJ disagreed, finding that Pulliam had not been diligent in his job search. Rather, the ALJ found that Pulliam had, in at least two instances, misrepresented the status of his injury so as to hurt his chances of being hired. Thus, Pulliam was entitled only to permanent, partial disability.2 5 In calculating Pulliam's post-injury wage earning capacity, the ALJ averaged the hourly wage of the five jobs for which Pulliam did not apply. Avondale unsuccessfully appealed to the Benefits Review Board ("BRB") arguing alternatively that the ALJ should have based Pulliam's compensation using the highest wage of the five jobs and that the ALJ should have considered all forty-four jobs in his calculation. The BRB affirmed the ALJ's findings and adjusted the ALJ's calculation of the average.3 Avondale now appeals. II 6 When the BRB affirms an ALJ's decision, we may reverse the ALJ's decision only if it is not supported by substantial evidence and is not in accordance with the law. New Thoughts Finishing Co. v. Chilton, 118 F.3d 1028, 1030-31 (5th Cir.1997). Substantial evidence is evidence that "a reasonable mind might accept as adequate to support a conclusion." Pierce v. Underwood, 487 U.S. 552, 564-65, 108 S.Ct. 2541, 2549-50, 101 L.Ed.2d 490 (1988) (internal quotation marks omitted). 7 * While 33 U.S.C. § 908(c)(21) sets forth the formula for calculating an employee's lost wage earning capacity, it gives no guidance for determining what the post-injury earning capacity is. Thus, the courts have determined post-injury earning capacity on a case by case basis. See Licor v. Washington Metropolitan Area Transit Authority, 879 F.2d 901 (D.C.Cir.1989); Pilkington v. Sun Shipbuilding and Dry Dock, 9 B.R.B.S. 473. 8 Avondale argues that the BRB should have vacated and remanded the ALJ's decision because the ALJ used the average of the wages rather than the highest wage. In P & M Crane v. Hayes, 930 F.2d 424 (5th Cir.1991), this Court held that an employer could satisfy its burden of proving alternate employment by showing that there was one job available in the local community. Here, Avondale points out that it more than satisfied its burden by showing that there were forty-four jobs available. Moreover, Avondale could have avoided this litigation altogether by finding the highest paying alternate employment for Pulliam. Instead, it provided Pulliam with a choice of forty-four jobs. 9 Avondale also urges this Court to reverse the ALJ's judgment based on policy. It contends that were we to affirm the ALJ, we would be discouraging other employers from attempting to find a range of suitable, alternate employment. To get around the averaging scheme, an employer would have to find only one, high paying job. Thus, should we reverse the ALJ, we would be encouraging employers to find a range of alternate employment. We disagree. 10 First, we find the policy argument unpersuasive. The employer, to avoid paying permanent, total disability benefits, has to show that there is suitable, alternate employment. We think it unlikely that an employer would risk having to pay permanent, total disability benefits by showing only one job available. Rather, the presumption that the employee is permanently and totally disabled would seem to encourage the employer to find as many alternate jobs as possible. 11 Second, in Shell Offshore, Inc. v. Cafiero, 122 F.3d 312, 318 (5th Cir.1997), we held that averaging was a reasonable method for determining an employee's post-injury wage earning capacity. We now explain why. We have held that an employer need not show that a specific job opening is available when proving suitable, alternate employment. See, Avondale Shipyards, Inc. v. Guidry, 967 F.2d 1039 (5th Cir.1992) (holding that an employer has to show only general availability). Thus, the courts have no way of determining which job, of the ones proven available, the employee will obtain. Averaging ensures that the post-injury wage earning capacity reflects all jobs available. B 12 We now address Avondale's argument that the ALJ should have calculated Pulliam's post-injury wage earning capacity by using all forty-four jobs. Avondale argues that the ALJ acted improperly in finding that Pulliam was not diligent and that he had applied for all but five of the forty-four jobs. While we agree that these findings seem inconsistent, we give deference to an ALJ's findings of fact. Wilkerson v. Ingalls Shipbuilding, Inc., 125 F.3d 904, 906 (5th Cir.1997). It is reasonable that the ALJ could find that Pulliam merely applied for most of the forty-four jobs and yet was not diligent in his job search. Thus, we do not find error in the ALJ using the five jobs to determine the average. CONCLUSION 13 For the above reasons we AFFIRM. 1 We note that the ALJ stated that Pulliam contacted all but six of the prospective employers; however, we are concerned with only five of those jobs because Pulliam gave no explanation for failing to contact those prospective employers 2 Under the LWHCA, the ALJ calculates loss of wage earning capacity by taking two thirds of the difference between the average of what the worker had earned and what the worker can earn post-injury. See 33 U.S.C. § 908(c)(21) 3 The ALJ had initially found that the average of the five jobs was $5.25/hour. The BRB adjusted the average to $5.99/hour
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COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS § Leonardo Ramirez, § No. 08-19-00097-CR Appellant, § Appeal from the v. § 41st District Court The State of Texas, § of El Paso County, Texas State. § (TC# CR 20170D04632) § ORDER The Court GRANTS the Court Reporter’s third request for an extension of time within which to file the Reporter’s Record until August 12, 2019. NO FURTHER REQUESTS FOR EXTENSION OF TIME TO FILE THE REPORTER’S RECORD WIL BECONSIDERED BY THIS COURT. It is further ORDERED that Bertha A. Prieto, Official Court Reporter for the 41st District Court, for El Paso County, Texas, prepare the Reporter’s Record for the above styled and numbered cause and forward the same to this Court on or before August 12, 2019. IT IS SO ORDERED this 29th day of July, 2019. PER CURIAM Before McClure, C.J., Rodriguez and Palafox, JJ.
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611 S.E.2d 750 (2005) 272 Ga. App. 91 REYNOLDS v. The STATE. No. A05A0768. Court of Appeals of Georgia. March 9, 2005. Certiorari Denied June 6, 2005. *751 George Jackson, Jackson & Schiavone, Savannah, for Appellant. Daniel Craig, District Attorney, Henry Syms, Jr., Madonna Little, Assistant District Attorneys, for Appellee. BLACKBURN, Presiding Judge. Having pled guilty in 1999 to aggravated child molestation and child molestation, Gary Reynolds directly appeals the trial court's denial of his motion to set aside his sentence, which motion was filed more than four-and-one-half years after his unappealed sentence was entered. We hold that since Reynolds's sentence fell within the range of allowable sentences for the charged crimes, his claim that the sentence was void is without merit. Accordingly, his motion to set aside that sentence was untimely, depriving this direct appeal of jurisdiction. For this reason, we must dismiss the appeal. *752 In March 1999, Reynolds was charged with six counts of child molestation[1] and one count of aggravated child molestation[2] arising out of conduct that took place between October 1992 and December 1994. In May 1999, he pled guilty to one count of child molestation and to one count of aggravated child molestation. At the guilty plea hearing, attorneys for both sides, Reynolds himself, and the judge all believed and discussed that the range of punishment for the aggravated molestation count was ten to thirty years, with the range for the child molestation count five to thirty years. All were further under the impression that Reynolds faced a mandatory minimum sentence of ten years to serve on the aggravated child molestation count. The court sentenced Reynolds to twenty years on each count (ten to serve and ten on probation), with the sentences to run concurrently. The final sentence was entered on May 17, 1999. After serving four-and-one-half years of his prison sentence, Reynolds in December 2003 moved the court to set aside his sentence on the ground that at the time he committed the crimes, former OCGA § 16-6-4 set the punishment range for aggravated child molestation from two to thirty years (not ten to thirty years with a ten-year-imprisonment mandatory minimum as was believed at the sentencing hearing) and set the punishment range for child molestation from one to twenty years (not five to thirty). Reynolds argued that he had received a sentence greater than that prescribed by law and that therefore his sentence was void. He claimed that, as his sentence was void, no time restriction precluded him from bringing the present motion to set aside, even though it was filed four-and-one-half years after his sentencing. The trial court disagreed. The court held that a motion to set aside a sentence (based on the ground that the court had misapprehended the law and had therefore failed to exercise its discretion) was required to be filed within the term of court during which the sentence was entered. The court further held that even though void sentences may be challenged at any time, the twenty-year sentences here fell within the range of allowable sentences even under the former OCGA § 16-6-4, and that therefore the sentences were not void. As four-and-one-half years were far beyond the term of court, the court found it had no jurisdiction and denied the motion. We agree. 1. It is undisputed that the court misapprehended the law at the time it sentenced Reynolds. Where the court has made such a mistake, a defendant is normally entitled to have his sentence vacated and to be resentenced by a court that has a correct apprehension of the possible range of punishments. See Banks v. State;[3]Mallarino v. State.[4] However, the defendant's right to have his sentence so modified is not unlimited. He may raise the issue in his initial direct appeal of his conviction (the procedure followed in Banks and Mallarino; Reynolds, however, filed no initial direct appeal here). Otherwise, he must make a timely motion in the trial court below. "Except as provided by statute, a sentencing court has no power to modify a valid sentence of imprisonment after the term of court in which it was imposed has expired." State v. Hart.[5] See Sasser v. Adkinson[6] ("in the absence of a statute providing to the contrary, the trial court's authority to vacate or modify a judgment ends with the expiration of the term of court in which the judgment was entered") (punctuation omitted). *753 Subsequent to the 1992 amendment of OCGA § 17-10-1(a) and prior to 2001, no statute purported to extend beyond the court's term the time in which a court could modify a sentence. Levell v. State;[7]Latham v. State.[8] See Ga. L. 1992, p. 3221, § 1. Thus, at the time the court imposed Reynolds's sentence in May 1999, the court's power to modify the sentence was limited to the court's term. In 2001, however, the General Assembly enacted OCGA § 17-10-1(f), which provides: Within one year of the date upon which the sentence is imposed, or within 120 days after receipt by the sentencing court of the remittitur upon affirmance of the judgment after direct appeal, whichever is later, the court imposing the sentence has the jurisdiction, power, and authority to correct or reduce the sentence and to suspend or probate all or any part of the sentence imposed. Ga. L. 2001, p. 94, § 5. Regardless of whether OCGA § 17-10-1(f) should be applied to Reynolds's December 2003 motion to set aside his sentence, that motion was far too late. It was not filed in the term in which the sentence was entered,[9] nor was it filed within a year of the date upon which the sentence was imposed, nor was it filed within 120 days of the trial court's receipt of a direct-appeal remittitur (as no direct appeal was filed). Accordingly, the trial court lacked subject matter jurisdiction and did not err in denying the motion. Kinsey v. State.[10] 2. Reynolds argues, however, that his sentence was void and therefore could be challenged at any time. Crumbley v. State[11] held that "[w]here a sentence is void, . . . the court may resentence the defendant at any time." See Jones v. State[12] ("a trial court's jurisdiction to modify a sentence extends beyond its statutory limitation only when the sentence is void") (footnote omitted); Howard v. State[13] ("`if the sentence imposed was a void sentence, then a new and valid sentence can be imposed by the trial judge at any time'"). The sentence here, however, was not void. "A sentence is void if the court imposes punishment that the law does not allow." Crumbley, supra at 611(1), 409 S.E.2d 517. "When the sentence imposed falls within the statutory range of punishment, the sentence is not void and is not subject to post-appeal modification beyond that provided in OCGA § 17-10-1(f)." Jones, supra at 670, 604 S.E.2d 483. See Daniel v. State.[14] Here, Reynolds's two twenty-year concurrent sentences (ten to serve, ten on probation) on the child molestation count and on the aggravated child molestation count fell within the ranges of punishment allowed in former OCGA § 16-6-4 (one to twenty for child molestation; two to thirty for aggravated child molestation) that applied to such offenses committed between October 1992 and December 1994. Accordingly, the sentences were not void. See Rehberger v. State;[15]Kinsey, supra at 653-654(1), 578 S.E.2d 269; Daniel, supra at 475(3), 585 S.E.2d 752. Compare Gonzalez v. State[16] (where fines were not authorized by controlling statute, sentence was void); Hahn v. State[17] (where imprisonment not authorized, *754 imprisonment sentence was void); McCranie v. State[18] (incest sentence void where incest merged with rape charge). Thus, the motion to set aside those sentences, filed four-and-one-half years after sentencing, was untimely. See Barber v. State;[19]Shaw v. State.[20] Reynolds argues that the court's misapprehension of the applicable range of sentences voids the sentences. However, "[a]ssertions taking issue with the procedure employed in imposing a valid sentence or questioning the fairness of an imposed sentence do not allege a sentence is void and therefore are not a means for post-appeal, post § 17-10-1(f) sentence modification." Jones, supra at 670-671, 604 S.E.2d 483. See Williams v. State[21] (failure to conduct required hearing did not render a sentence void). A court which misapprehends the law and therefore fails to properly exercise its discretion in sentencing commits a procedural error; since the procedural error does not void the resulting sentence, a dissatisfied defendant must challenge the sentence in a timely manner. Daniel, supra at 475(3), 585 S.E.2d 752; Newby v. State;[22]Shaw, supra at 232-233, 504 S.E.2d 18. Absent such a timely challenge, the only avenue for reviewing the sentence lies in a petition for writ of habeas corpus. See Jones, supra at 671, 604 S.E.2d 483. 3. Where the untimely challenge in the trial court below does not raise valid allegations that the sentence was void, the Supreme Court of Georgia recently held that not only is the trial court without jurisdiction to modify the sentence, but that the trial court's "[r]ulings on pleadings asserting erroneous procedure or unfair treatment are not subject to direct appeal because they are not rulings on whether the sentence is void." (Emphasis supplied.) Jones, supra at 671, 604 S.E.2d 483. See Williams, supra at 688-689(1), 523 S.E.2d 857 (direct appeal only authorized where petition properly alleges sentence was void). Accordingly, appeals on such rulings are to be dismissed, not affirmed. Jones, supra at 671, 604 S.E.2d 483. See Boyd v. State[23] (dismissing direct appeal where it was not an attack on a void sentence). For this reason, we dismiss this appeal. Appeal dismissed. MILLER and BERNES, JJ., concur. NOTES [1] OCGA § 16-6-4(a). [2] OCGA § 16-6-4(c). [3] Banks v. State, 225 Ga.App. 754, 756-757(5), 484 S.E.2d 786 (1997). [4] Mallarino v. State, 190 Ga.App. 398, 399-400(1), 379 S.E.2d 210 (1989). [5] State v. Hart, 263 Ga.App. 8, 9, 587 S.E.2d 164 (2003). [6] Sasser v. Adkinson, 245 Ga.App. 719, 720, 538 S.E.2d 800 (2000). [7] Levell v. State, 247 Ga.App. 615, 616-617(1), 544 S.E.2d 523 (2001). [8] Latham v. State, 225 Ga.App. 147, 148-150, 483 S.E.2d 322 (1997). [9] See OCGA § 15-6-3(5)(A). [10] Kinsey v. State, 259 Ga.App. 653, 654(1), 578 S.E.2d 269 (2003). [11] Crumbley v. State, 261 Ga. 610, 611(1), 409 S.E.2d 517 (1991). [12] Jones v. State, 278 Ga. 669, 670, 604 S.E.2d 483 (2004). [13] Howard v. State, 234 Ga.App. 260, 261(1), 506 S.E.2d 648 (1998). [14] Daniel v. State, 262 Ga.App. 474, 475(3), 585 S.E.2d 752 (2003). [15] Rehberger v. State, 267 Ga.App. 778, 779-780, 600 S.E.2d 635 (2004). [16] Gonzalez v. State, 201 Ga.App. 437, 438, 411 S.E.2d 345 (1991). [17] Hahn v. State, 166 Ga.App. 71, 72-74(1), 303 S.E.2d 299 (1983). [18] McCranie v. State, 157 Ga.App. 110, 111(2), 276 S.E.2d 263 (1981). [19] Barber v. State, 240 Ga.App. 56, 57, 522 S.E.2d 238 (1999). [20] Shaw v. State, 233 Ga.App. 232, 233, 504 S.E.2d 18 (1998). [21] Williams v. State, 271 Ga. 686, 691(2), 523 S.E.2d 857 (1999). [22] Newby v. State, 261 Ga.App. 96, 581 S.E.2d 659 (2003). [23] Boyd v. State, 253 Ga.App. 238, 239, 558 S.E.2d 787 (2002).
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" FILED\n (...TRUNCATED)
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"\n22 B.R. 447 (1982)\nIn re Maris K. RINEER and Diane M. Rineer, Debtors.\nMaris K. RINEER and Dian(...TRUNCATED)
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