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987 A.2d 811 (2009) COM. v. CONWAY. No. 836 MDA 2008. Superior Court of Pennsylvania. October 23, 2009. Affirmed.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/515104/

862 F.2d 316 Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Jake E. CANTRELL, Defendant-Appellant. No. 88-5003. United States Court of Appeals, Sixth Circuit. Nov. 15, 1988. Before BOYCE F. MARTIN, Jr. and DAVID A. NELSON, Circuit Judges, and CONTIE, Senior Circuit Judge. PER CURIAM. 1 This is an appeal from a conviction for willful misapplication of bank funds. Finding that the trial court did not err in allowing the case to go to the jury, and that reversal is not required for any of the other reasons advanced by the appellant, we shall affirm the conviction. 2 * 18 U.S.C. Sec. 656 reads in part as follows: 3 "Whoever, being an officer, director, agent or employee of, or connected in any capacity with any ... insured bank ... willfully misapplies any of the moneys, funds, ... assets or securities intrusted to the custody or care of such bank ... shall be fined not more than $5,000 or imprisoned not more than five years, or both...." 4 The defendant in this case, Jake Cantrell, was involved in the establishment and operation of three banks in Tennessee and Georgia: The Dayton Bank and Trust Company of Dayton, Tennessee; the Farmers Bank and Trust Company in Winchester, Tennessee (through its holding company, Farmbanc); the Bank of Cumming, in Cumming, Georgia. According to S.R. "Russ" McGee, a business associate, Cantrell wanted to buy more stock in Farmbanc, but was limited by Tennessee's chain banking laws in the amount of stock he could hold. Cantrell therefore asked McGee to take out a loan from Dayton Bank & Trust Company and buy the stock for him. Cantrell undertook to give McGee a note to cover McGee's indebtedness. 5 The President of Dayton Bank & Trust Company, J. Walter Spiva, testified at trial that although he did not know how much Dayton Bank stock Cantrell controlled, Cantrell and the bank "pretty much were identified synonymously." From the time Spiva began working for Dayton Bank & Trust, he said, Cantrell "had been pretty much the head of the bank, the ultimate authority." 6 One day in January of 1983 Cantrell called Spiva and told him that Russ McGee's income was going to be increased by $100,000. (McGee had earned about $60,000 in 1982.) Cantrell said, according to Spiva, that McGee was looking for a place to invest his extra money and had decided to purchase shares in Farmbanc. Because of the advent of bank deregulation in Tennessee, it was believed that this stock would appreciate in value. Cantrell told Spiva that he had committed the bank to lend McGee $412,000 to buy the stock, and Spiva was instructed to do the necessary paperwork. Cantrell also told Spiva that although the financial statement on file for McGee could not support a loan of that size, a new financial statement, reflecting a larger income, would be forthcoming. 7 Although he had some doubts about the loan, Spiva followed Cantrell's instructions and advanced McGee the money under a loan agreement dated January 23, 1983. Spiva testified that the board of directors of the Dayton Bank was never informed that Cantrell had any financial interest in the loan. Shortly after the loan was made, the Bank of Cumming assumed 90 percent of it through a $372,000 "participation." 8 Upon receiving the loan proceeds, McGee testified, he handed the money over to Cantrell, his "agent." Cantrell gave McGee a $412,000 note to cover the contingency of the bank's calling the loan. 9 Cantrell used the $412,000 to purchase 10,000 shares of Farmbanc stock in McGee's name. In March of 1983 McGee signed an agreement giving Cantrell an option to buy the stock at the original purchase price. (Cantrell never exercised this option.) In due course, Cantrell supplied McGee with funds to make the first loan payment, which was due in July of 1983, and to make a second loan payment in January of 1984. 10 McGee decided in 1984 to take a new job with an insurance company. He observed at this time that the Farmbanc stock was not performing as well as anticipated, and he asked Cantrell to pay off the loan. According to McGee's testimony, Cantrell did so. 11 Meanwhile, a bank examiner discovered the existence of the loan during an examination of the Bank of Cumming. The discovery led ultimately to Cantrell's being indicted and tried for violating 18 U.S.C. Sec. 656 and 18 U.S.C. Sec. 2. The indictment charged that Cantrell, 12 "Being in fact an officer of Dayton Bank and Trust Company, Dayton, Tennessee, and connected to said bank in his capacity as a de facto officer of said bank and a shareholder of Rhea Bancshares, Inc., the holding company of said bank, the deposits of which bank were then insured by the Federal Deposit Insurance Corporation, with intent to injure and defraud said bank, did willfully and knowingly misapply and cause to be misapplied monies of the said bank in the amount of $412,000 in that he, Jake E. Cantrell, caused Walter Spiva, an officer of Dayton Bank and Trust Company to make [a] Dayton Bank and Trust Company bank loan in the amount of $412,000 in the name of S.R. McGee, Jr., of which he, Jake E. Cantrell, was the true and undisclosed beneficiary." 13 The jury returned a verdict of guilty, and Cantrell was sentenced to five years imprisonment and a fine of $5,000, the maximum penalty provided for in the statute. II 14 The first issue presented is whether Cantrell could properly be found to have had enough of a connection with the Dayton Bank to be covered under 18 U.S.C. Sec. 656. Simply being a bank depositor is not enough. See Logsdon v. United States, 253 F.2d 12 (6th Cir.1958). It is clear from the transcript that Cantrell was not an employee or director of the bank, or even a majority stockholder. Cantrell could come within the statute, however, if he was a de facto officer of the bank, pulling the bank's financial strings from outside the official organizational structure. 15 Mrs. Phoebe Frazier, vice-president and cashier of the bank, testified at trial that she heard Cantrell announce around March of 1982 that "he did not have anything to do with the bank after that." But Walter Spiva, the president of the bank and its de jure decision-maker, testified that Cantrell was giving the orders at the bank long after March 1982. There was considerable evidence that Cantrell did, in fact, call the shots at the bank, and the trial court was not required to find otherwise. III 16 Whether the evidence was sufficient to support a conviction for misapplication of funds by the de facto officer is a more tangled issue. "Willful misapplication "is not defined in the statute. One frequently cited opinion dealing with willful misapplication, United States v. Gens, 493 F.2d 216 (1st Cir.1974), divides the misapplication cases into three categories: 17 "First, those in which bank officials knew the named debtor was either fictitious or wholly unaware that his name was being used ... Second, cases in which bank officials knew the named debtor was financially incapable of repaying the loan whose proceeds he passed on to the third party ... Third, cases in which bank officials assured the named debtor, regardless of his financial capabilities, that they would look for repayment only to the third party who actually received the loan proceeds: in other words where the debtor allowed only his name to be used, enabling the bank officials to grant a de facto loan to a third party to whom the bank was unwilling to grant a formal loan." 18 493 F.2d at 222; see also United States v. Foster, 566 F.2d 1045 (6th Cir.1977) (applying Gens ). 19 United States v. Duncan, 598 F.2d 839 (4th Cir.1979), defined a Sec. 656 violation in terms of the following elements: 20 "For a violation of Sec. 656 to be proved, the government must show, in addition to the status of both bank and defendant, that the defendant acted willfully, that he misapplied funds, moneys or credits belonging to or entrusted to the custody of the bank and that he did so with the intent to injure or defraud the bank. While the statutory language no longer makes reference to the last mentioned element, it remains a necessary part of the government's proof." 21 598 F.2d at 858. 22 All of the elements of a Sec. 656 violation are present, as the jury could well have found, in the case at bar. Cantrell told Spiva, the president of the Dayton Bank, that although McGee's present financial status was insufficient to support a loan of the magnitude of $412,000, McGee's income would soon almost triple. This was not true. McGee testified at trial that he had no reason to expect a major increase in his income, and he said that he would not have been able to pay off the $412,000 note without Cantrell's assistance. Whether or not Cantrell knew that he was telling Spiva an untruth is, of course, a factual determination for the jury; but there was no effective rebutal of Spiva's testimony, or McGee's. Moreover, according to Spiva, the board of directors was never informed that Cantrell had an interest in the loan to McGee. 23 The evidence shows that Cantrell obtained the $412,000 loan for McGee in the expectation of gaining personal advantage from it. According to McGee's testimony, Cantrell had McGee sign an agreement under which McGee would be obligated to sell the Farmbanc stock to Cantrell at the original purchase price if Cantrell paid off McGee's indebtedness. In return, Cantrell gave McGee a demand note for $412,000 with a "verbal understanding" that if the bank called its note, McGee could call his. That the stock purchase option was never exercised is of no moment. It is not necessary, in showing misapplication of funds, to prove actual gain by the defendant or actual loss by the bank. "It is sufficient that the defendant at least temporarily deprive the bank of the possession, control or use of its funds." Duncan, 598 F.2d at 858. 24 The jury could well have found that Cantrell (a) had the Dayton Bank make a loan to a person who was financially incapable of repaying it; (b) for the purpose of having that person buy stock which Cantrell would have an option to purchase; (c) without informing the Dayton Bank of his interest in the loan. Under any reasonable construction, this constitutes misapplication of funds under Sec. 656. 25 Defendant Cantrell made little attempt to rebut the evidence against him. He called only one witness, Millard Oakley, the man from whom the 10,000 shares of Farmbanc stock had been purchased. Oakley testified, basically, that it was he who sold the stock and that he, not McGee or Cantrell, ultimately pocketed the $412,000. That fact hardly helps Cantrell, however, because Cantrell put himself in a position to acquire the stock. Neither is Cantrell helped by the fact that the Dayton Bank got its $412,000 back, with interest, assuming that this is true. What matters is the risk of loss that was imposed on the bank during the period when the loan was outstanding, and the loss of the opportunity to lend the money to more credit-worthy borrowers. Although the Bank of Cumming took a 90 percent participation in the loan, it was not obligated to do so--and the Dayton Bank was still left with a $40,000 exposure. Defendant's argument that the loan was "risk-free" is not helped by the fact that the Cumming Bank "charged off" half of its share of the loan--meaning, in the words of government witness John Mitchell, that "the bank considers it to be of such doubtful collectability that it should no longer be carried in their assets." And it should be noted that although McGee testified that Cantrell paid off the loan, there is evidence in the record that the loan was in fact charged off by the Dayton Bank & Trust as uncollectible, as well. 26 We think there was substantial evidence to support the conclusion that this case falls in Gens' second category of misallocation, where "bank officials [i.e., Cantrell] knew the named debtor was financially incapable of repaying the loan whose proceeds he passed on to the third party [i.e., Cantrell]." There was also substantial evidence showing willfulness and intent to defraud. IV 27 Cantrell contends that the indictment was unconstitutionally vague because it characterized him as "in fact an officer of Dayton Bank and Trust Company" as well as "a de facto officer of said bank." Cantrell maintains that the government was trying to use two theories without having to choose between them. The argument is creative but unpersuasive. It is clear from a reading of the indictment that "in fact" was used as a synonym for de facto. 28 Cantrell also argues that the indictment was unconstitutionally vague because it failed to discriminate between misapplying funds directly, misapplying funds through the agency of another person, and misapplying funds by aiding and abetting another in doing so. The statute does not so discriminate, however, and the indictment was not deficient. 29 Cantrell argues that the court's charge to the jury gave improper examples of misapplication of funds. Of the three examples given, the first two were taken almost verbatim from the second and third examples in Gens. The third example departed from Gens: 30 "Third, the bank officer or person connected in some capacity with the bank makes a loan to a named debtor, McGhee, with the intent that the proceeds be used for his own benefit and conceals his interest in the loan from the bank. In such a case, the financial condition of the nominal borrower, McGhee, is not relevant. 31 However, where the bank officer or person connected in some capacity with the bank derives no benefit from the loan, he may properly loan money to a named debtor, McGhee, whom the bank officer or person connected with the bank in some capacity knows will reloan the money if the named debtor, McGhee, is creditworthy and understands that he is responsible to repay the loan. 32 In this situation, the bank official or person connected in some capacity with the bank has granted a loan to a financially []capable party who knows his obligation to repay the loan and thus has protected the interests of the bank." 33 Cantrell contends that this example was prejudicial because it characterized McGee as a "nominal borrower." Cantrell made no specific objection on this ground at the charge conference, however, and thus waived any right to complain of the phrase here, absent plain error affecting his substantial rights. United States v. Bouquett, 820 F.2d 165, 170 (6th Cir.1987); see also United States v. Saussy, 802 F.2d 849, 853 (6th Cir.1986); cert. denied, 107 S.Ct. 1352, 94 L.Ed.2d 522 (1987). No such error existed. 34 Cantrell also contends that the third example of misapplication was unfairly prejudicial because it deviated from established court interpretations of 18 U.S.C. Sec. 656, such as those made in Gens and in United States v. Foster, 566 F.2d 1045 (6th Cir.1977). But while perhaps not congruent with the examples in Gens, the third example does in fact describe a "nominee loan." In all of the examples in Gens, a bank official had used a named debtor to lend to a third party; here, the allegation was that the bank official had used the named debtor to lend to himself. If the unauthorized lending to a third party in the Gens examples is forbidden by the statute, then certainly the unauthorized lending to oneself is forbidden also. 35 We have carefully examined the remaining objections to the charge, not all of which were made known to the trial court, and we do not find that the court committed any error that would justify setting the conviction aside. The judgment of the district court is AFFIRMED.

01-03-2023

08-23-2011

https://www.courtlistener.com/api/rest/v3/opinions/6363755/

Opinion by Judge Rogers, The Court of Common Pleas of Westmoreland County reversed an order of the Liquor Control Board suspending the restaurant liquor license of Argonne Tavern, Inc. for thirty days. Argonne was cited and suspended for violating Section 491(10) of the Liquor Code1 which forbids licensees “to fortify, adulterate or contaminate any liquor ... or to refill wholly or in part, with any liquid or substance whatsoever, any liquor bottle or other liquor container. ” On the Board’s appeal we remanded the record for findings *380of fact and conclusions of law as to whether the licensee, which the Board found to he in possession of five liquor bottles containing liquor other than the brands indicated by their labels, rebutted the presumption that “mere possession of adulterated liquor is prima facie evidence of knowledge of the illegal act.” Pennsylvania Liquor Control Board v. Argonne Tavern, Inc., 25 Pa. Commonwealth Ct. 286, 287-88, 361 A.2d 480, 481 (1976). See Commonwealth v. Koczwara, 397 Pa. 575, 155 A.2d 825 (1959); 400 Lounge, Incorporated Liquor License Case, 204 Pa. Superior Ct. 207, 203 A.2d 362 (1964). The court below found that Argonne’s owner did not refill any bottles and that the presumption had been rebutted by (1) the testimony of the owner that he was the only employe on duty on the day the offense was alleged to have occurred and he did not refill any liquor bottles; and (2) the admission by the Commonwealth that distillery formulae were not used to determine whether five bottles contained the brand of liquor stated on the labels. The court relied on IfiO Lounge, supra. In J¡00 Lounge, the licensed establishment employed 13 persons, including 10 bartenders, contained five bars and had capacity for 600 patrons. The licensee there had no prior record of violations. Of the sis bottles tested only one, when tested against a single control bottle, was found to contain liquor with characteristics so different from that of its labeled brand that refilling was indicated. The Superior Court ruled that those circumstances and the fact that the state chemist analyzed the deviant bottle only by comparison with one unopened bottle overcame the presumption. The facts of the present case are much different. Argonne’s owner testified in the court hearing that only he and his wife worked for Argonne. Argonne has been cited for Sunday sales, sales between the hours of 2:00 A.M. and 7:00 A.M., maintain*381ing gambling devices, permitting gambling and permitting lewd and obscene films. Tbe state chemist who performed the tests on the bottles testified in some detail that the State keeps a continuoxisly updated record of the content and characteristics of authentic samples of various liquor brands obtained from bottles from State warehouses and that the contents of all of Argonne’s five bottles tested were compared against those records and found to deviate. Here one of Argonne’s bottles was compared against 11 control bottles and another was compared against 25 control bottles. Argonne offered no evidence except its owner’s testimony that he was the only person working in the bar when the offense was allegedly committed and that he had not refilled any bottles that day. We hold that this evidence was insufficient to rebut the presumption based on possession that the licensee knew of the violation of the statute. Commonwealth v. Speer, 157 Pa. Superior Ct. 197, 42 A.2d 94 (1945). Order And Now, this 1st day of June, 1977, the order of the Court of Common Pleas of Westmoreland County sustaining the licensee’s appeal is reversed and the order of the Pennsylvania Liquor Control Board suspending Argonne’s license for thirty days is reinstated. Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §4-491(10).

01-03-2023

06-24-2022

https://www.courtlistener.com/api/rest/v3/opinions/2273036/

318 S.W.3d 208 (2010) STATE of Missouri, Respondent, v. Jeffrey L. STARNES, Appellant. No. WD 69573. Missouri Court of Appeals, Western District. June 15, 2010. Motion for Rehearing and/or Transfer to Supreme Court Denied July 27, 2010. Application for Transfer Denied September 21, 2010. *209 Craig A. Johnston, Columbia, MO, for appellant. *210 Shaun L. Mackelprang and Jayne T. Woods, Jefferson City, MO, for respondent. Before Division Three: JAMES M. SMART, JR., Presiding Judge, JOSEPH M. ELLIS, Judge and GARY D. WITT, Judge. GARY D. WITT, Judge. After a jury trial, Jeffrey Starnes was convicted of driving while intoxicated (DWI). Based on this conviction, Starnes was sentenced by the trial court as a "chronic offender" to ten years in the Missouri Department of Corrections. Because the trial court failed to hear evidence and make a finding that Starnes had four or more intoxicated related offenses prior to the case being submitted to the jury in violation of Section 577.023,[1] we vacate the sentence and remand for resentencing. I. Factual Background Jeffrey Starnes was charged in the Circuit Court of Clay County with DWI for events occurring on July 27, 2007, in violation of § 577.010. The substitute information alleged that Starnes was a "chronic offender" under § 577.023 because he had been convicted of four or more prior "intoxication-related traffic offenses." Beginning on January 14, 2008, the case was tried before a jury. It is not disputed that the State introduced conclusive evidence of three of Starnes's prior intoxication-related traffic offenses during its case in chief, but outside of the hearing of the jury. The fourth intoxication-related traffic offense was a conviction from Kansas City Municipal Court in 1997. The evidence was unclear if this was a conviction for DWI or Driving with an Excessive Blood Alcohol Content (BAC).[2] The trial court also noted that, among other things, the relevant exhibit (Exhibit 4) failed to prove that Starnes was represented by counsel or waived the right to counsel in writing when found guilty of the 1997 municipal offense. Because this evidentiary hearing took place during the State's case in chief, the trial court ruled that the State would be allowed further time during the course of the trial to rectify these evidentiary problems. After the close of all evidence and immediately prior to closing arguments, the trial court asked counsel whether there were any other issues that needed to be discussed before the case was submitted to the jury. The State reminded the trial court of the issue pertaining to "the priors," but the Court stated that "that's not a jury issue." The jury returned a verdict of guilty as charged. After this finding of guilt by the jury, the trial court immediately held a hearing pertaining to the State's evidence on this fourth prior conviction. The trial court further ruled that "the proof and argument's still open to the fourth intoxication-related offense, and the one you have pleaded that in my view you haven't proven is the one that starts out, on or about December 15th, 1997." (Emphasis added.) The trial court noted on the record that Exhibit 4 contained evidence not only pertaining to the 12/15/97 intoxication-related *211 traffic offense, but it also contained evidence pertaining to another charge Starnes had allegedly been found guilty of in Kansas City Municipal Court for driving while intoxicated on September 5, 1996. In an attempt to clarify its rulings on this issue, the trial court stated that "we have to break State's Exhibit 4 up into two pieces" so that the evidence pertaining to the 1996 municipal offense was distinct and different from the 1997 offense. Specifically, a new exhibit was created (Exhibit 8) and admitted that contained the evidence pertaining to the 12/15/97 conviction. The evidence pertaining to the previous conviction, stemming from the 1996 incident, remained Exhibit 4 but was no longer considered by the trial court because the 1996 offense was not pled in the First Amended Information. Starnes's trial counsel argued at the hearing that Exhibit 8 did not demonstrate beyond a reasonable doubt that Starnes was represented by counsel when found guilty by the municipal court on December 15, 1997. Starnes further argued that while Exhibit 8 demonstrated that Starnes was represented by counsel in this matter at some time, the State could not prove that counsel had represented Starnes when he was found guilty by the municipal court because handwritten notes on Exhibit 8 demonstrated that counsel was granted leave to withdraw on September 29, 1997. At the end of the hearing on January 15, 2008, the trial court did not make a ruling as to whether Starnes was a chronic offender; instead, the trial court continued the matter to allow the State to gather additional evidence on the issue of Starnes's conviction in municipal court on December 15, 1997. Prior to continuing the hearing, Starnes's trial counsel stated that he would not object to the State "trying to gather some more information" pertaining to this fourth conviction. Finally, the trial court ruled that it was not going "to file the verdict as of today since we don't know the level of the offense and evidence is still coming in on judge stuff" and that the Court was "not accepting the judgment today." On January 16, 2008, the trial court entered an order that stated, in part, the following: Because the proof is not complete on issues to be determined by the court, i.e., whether the defendant has 3 or 4 prior intoxication related offenses, a determination that will determine whether defendant is guilty of a Class C or a Class B felony, the verdict is not filed. The defendant shall have 15 additional days within which to file a motion for new trial or, other appropriate relief. The date on which defendant's 25 days within which to file his motion will not begin to run until the court enters an order on the remaining issue. On January 25, 2008, the trial court held another evidentiary hearing on this issue. At the beginning of the hearing, the trial court allowed the State to submit into evidence Exhibit 101. Exhibit 101 was similar to Exhibit 8 in that they both contained evidentiary documentation that attempted to establish that Starnes was found guilty of BAC on December 15, 1997; however, Exhibit 101 provided additional documentation that a second attorney had entered his appearance in this case at an unknown time, possibly before the other attorney had withdrawn. The State argued that from this second entry of appearance the trial court could reasonably infer that Starnes was represented by an attorney at the 12/15/1997 guilty plea hearing. On February 1, 2008, the trial court held yet another evidentiary hearing on this issue, wherein Starnes called two witnesses to testify regarding whether *212 Starnes was represented at the 12/15/1997 hearing. Bernard Schneider, the Court Administrator of the Kansas City Municipal Court, testified that in his opinion in reviewing the relevant court records, Starnes was represented by counsel when pleading guilty. Starnes testified at the hearing that he was not represented by counsel when he pled guilty. At the end of this evidentiary hearing, the trial court concluded that it was "firmly convinced that the defendant was represented by counsel when he entered his plea to reduced charge on December 15th, 1997," and that therefore Starnes would be "sentenced on a Class B Felony" as a chronic offender. On February 26, 2008 the Defendant filed his Motion for New Trial. On April 3, 2008, the trial court sentenced Starnes to ten years in the Missouri Department of Corrections. Starnes now appeals. II. Analysis In his sole Point Relied On, Starnes argues that the trial court erred "in finding Appellant to be a chronic DWI offender under Section 577.023" because the State failed to prove beyond a reasonable doubt that Starnes was a chronic offender prior to the case being submitted to the jury as required by Section 577.023. Section 577.023.1(2)(a) states that a "chronic offender" is a person "who has pleaded guilty to or has been found guilty of four or more intoxication-related traffic offenses," and Section 577.023.5 provides that any individual who is proven to be "a chronic offender shall be guilty of a class B felony." It is not disputed on appeal that the State timely proved and the trial court timely found, beyond a reasonable doubt, that Starnes had three previous convictions for intoxication-related traffic offenses, meeting the requirements for a conviction as a Class C Felony, Aggravated Offender under Section 577.023. Solely in dispute is whether the State properly and timely proved, and the trial court properly and timely found, the fourth such conviction to exist beyond a reasonable doubt. Section 577.023.8 specifies that, "[i]n a jury trial, the facts [establishing chronic offender status] shall be pleaded, established and found prior to submission to the jury outside of its hearing." (Emphasis added.) Section 577.023.16 similarly provides that "[e]vidence of prior convictions shall be heard and determined by the trial court out of the hearing of the jury prior to the submission of the case to the jury" and "[a]fter hearing the evidence, the court shall enter its findings thereon." (Emphasis added.) The Supreme Court of Missouri has repeatedly made it clear that the statutory timing requirements for the State to present evidence to the trial court of prior, aggravating offenses are mandatory and not discretionary. In State v. Severe, the Supreme Court of Missouri held that "[w]hen presenting evidence against a defendant charged with a crime, the language of the statute is of paramount importance." 307 S.W.3d 640, 644 (Mo. banc 2010). In Severe, defendant was convicted of driving while intoxicated after a jury trial, and the trial court sentenced defendant as a "persistent offender" in light of the fact that the State had proven that defendant had "two prior alcohol related-convictions." Id. at 641. While the appeal of her conviction was pending, the Supreme Court decided Turner v. State, 245 S.W.3d 826 (Mo. banc 2008), which held that a municipal DWI plea that resulted in a suspended imposition of sentence could not be used to enhance the offense to a class D felony. Id. *213 Because one of the defendant's prior convictions was for a municipal DWI guilty plea that resulted in a suspended imposition of sentence, the Supreme Court of Missouri reversed the trial court's judgment and remanded for resentencing based on its conclusion that "[b]eing sentenced to a punishment greater than the maximum sentence for an offense constitutes plain error resulting in manifest injustice." Id. In so holding, the Court expressly rejected the State's argument that it should be provided an opportunity on remand to prove the existence of other prior intoxication related offenses because the applicable statute provides "that `in a jury trial, the facts shall be pleaded, established and found prior to submission to the jury.'" Id. at 644 (quoting 558.021.2, emphasis added by the Court).[3] In Severe, the Missouri Supreme Court relied heavily on its previous holdings in State v. Emery, 95 S.W.3d 98 (Mo. banc 2003), and State v. Teer, 275 S.W.3d 258 (Mo. banc 2009), which dealt squarely with the issue of when prior convictions must be pled and proven to the trial court pursuant to Section 558.021. "Section 577.023 follows the same procedures as Section 558.021 to establish persistent DWI offender status." State v. Rose, 169 S.W.3d 132, 136-37 (Mo.App. E.D.2005). In Emery, the Supreme Court of Missouri concluded that the trial court had erred in sentencing the defendant as a prior and persistent offender because at trial the State failed to present evidence to prove the existence of the alleged prior offenses. 95 S.W.3d at 101. Because a remand allowing the State to present additional evidence of the defendant's prior convictions "would require the sentencing court to commit error by violating" the timing requirement of the statute, the Supreme Court in Emery remanded "for resentencing without regard to prior or persistent offender status." Id. at 100, 102. In refusing to allow the State an opportunity to present further evidence of the prior convictions on remand, the Supreme Court also relied on the fact that the genesis of the problem was "`prosecutorial laxity'" in failing "to prove prior convictions `in conformity with applicable statutory requirements.'" Id. at 101 (quoting State v. Cullen, 39 S.W.3d 899, 906 (Mo.App. E.D. 2001)). The Supreme Court of Missouri in Teer expanded upon why the statutory language in question "imposes a mandate requiring that prior offender status be pleaded and proven prior to the case being submitted to the jury." 275 S.W.3d at 261 (emphasis added). In Teer, during trial the State moved to amend the information in order to charge the defendant as a prior offender due to a previous stealing conviction, and the trial court "sustained this motion after the case was submitted to the jury but before the verdict." Id. at 260 (emphasis added). In reversing the defendant's conviction on appeal, the Missouri Supreme Court held that the trial court's failure to make the relevant ruling until after the case was submitted to the jury was in error for the following reasons: Section 558.021.2 unequivocally provides that the prior offender status "shall" be pleaded and proven prior to the case being submitted to the jury. The word *214 "shall" generally prescribes a mandatory duty.... As such, section 558.021.2 implicates a defendant's liberty and, like other criminal statutes, should not be extended by judicial interpretation so as to embrace persons and acts not specifically and unambiguously brought within its terms. This interpretive rule applies to both the procedural and substantive aspects of criminal statutes and requires the statute to be construed strictly against the state and in favor of the defendant. The plain language of section 558.021.2 imposes a mandate requiring that prior offender status be pleaded and proven prior to the case being submitted to the jury. When the plain language of section 558.021.2 is construed in favor of the defendant, the absence of a penalty provision does not necessarily mean that compliance with the statute is merely directory. There is no dispute that Teer's status as a prior offender was not plead and proven until after the case was submitted to the jury. This procedure violated the plain language of section 558.021.2. 275 S.W.3d at 261-62 (citation omitted). Teer, Emery, and Severe all require that this matter be vacated and remanded for re-sentencing as an "aggravated offender" because the trial court erred in hearing evidence and in making findings regarding Starnes's alleged chronic offender status after the case was submitted to the jury, in direct violation of the timing requirements of Section 577.023. The State's attempts to distinguish the aforementioned case law on appeal are unavailing. To begin with, the State cites to statutory language other than the language this Court is required to interpret in order to support its argument that "[s]ince the enactment of bifurcated proceedings, the phrase `prior to submission to the jury' [in section 577.023] can mean one of two things: prior to submission of the case for a guilt determination, or prior to the submission of the case for a punishment recommendation." The State argues that the applicable language of Section 577.023.8, which it concedes has not changed since it first became law in 1982, somehow took on a new meaning when the legislature adopted bifurcated trial proceedings pursuant to Section 557.036. But the State fails to cite any authority to support this proposition and for good reason because the "`fundamental rule of statutory interpretation is to ascertain the intent of the legislature from the language used, to give effect to that intent if possible, and to consider the words used in their plain and ordinary meaning.'" Inter City Fire Prot. Dist. v. DePung, 283 S.W.3d 277, 279 (Mo. App. W.D.2009) (quoting State ex rel. Doe Run Co. v. Brown, 918 S.W.2d 303, 306 (Mo.App. E.D.1996)). Here, the Missouri Supreme Court has made clear on numerous occasions that the language of the statute in Section 577.023, by itself, is clear and unambiguous, and thus not open to interpretation from other sources. Here, the State had ample opportunity to prove, pursuant to the statutorily required timing requirements, that Starnes was a chronic offender. The trial court made an express finding that the State failed to make a showing beyond a reasonable doubt of the fourth alcohol related offense prior to the case being submitted to the jury. Accordingly, the instant case provides an even more compelling case for vacation of the sentence than the Supreme Court of Missouri's most recent holding in this area of the law in Severe because, unlike in Severe, the State could have prevented the evidentiary problem that is the subject of this appeal through proper presentation of the relevant evidence at trial. *215 The State further argues that Starnes's claim on appeal should be denied because the evidence submitted by the State in its case in chief was sufficient to prove that Starnes had four prior intoxication related traffic offenses. The State ignores the fact that the trial court made an express ruling that the evidence presented in the State's case in chief was, in fact, insufficient in this regard. Specifically, after the case was submitted to the jury, the trial court found that "the one you have pleaded that in my view you haven't proven is the one that starts out, on or about December 15th, 1997." Accordingly, we will defer to the factual determination of the trial court and will not re-weigh the evidence in this regard on appeal. The State further argues on appeal that Starnes was not prejudiced by the trial court's error in this regard based on the assumption that Starnes is "in fact" a chronic offender and "that defendants generally cannot establish prejudice when they are, in fact, prior offenders and not entitled to jury sentencing." But this argument was rejected by the Supreme Court of Missouri in Severe. In Severe, it was undisputed that, even when excluding the municipal SIS conviction pursuant to Turner, the defendant was still a prior offender who was not entitled to jury sentencing. Severe, 307 S.W.3d at 641-43. Nonetheless, the Supreme Court of Missouri reversed and remanded for re-sentencing on the lesser conviction and held that the State was not entitled to adduce additional evidence of the defendant's other priors because to do so would violate the timing requirements of the statute. Id. at 644-46. Stated another way, the Court held that whether the State could prove that the defendant was a persistent offender was irrelevant because the State failed to adduce such proof at the proper time under the statute. Id. For the reasons discussed at length previously, the trial court erred when it sentenced Starnes as a "chronic offender" instead of as an "aggravated offender" in light of the fact that the State only proved (and the trial court only found) three prior convictions prior to the case being submitted to the jury. Moreover, this error was prejudicial because Starnes was sentenced to a ten year term of imprisonment, which is a term greater than the maximum seven year sentence allowable as a matter of law pursuant to Section 577.023.4 for the Class C felony enhanced sentence for an "aggravated offender." Severe, 307 S.W.3d at 644-46; Teer, 275 S.W.3d at 262. Finally, notwithstanding the fact that the trial court so erred in this regard, the State suggests that this Court should not grant relief to Starnes pursuant to plain error review. We disagree. There can be no doubt that this Court is constrained to plain error review because Starnes failed to timely file a motion for new trial. Rule 29.11(b) provides, in relevant part, that a "motion for new trial ... shall be filed within fifteen days after the return of the verdict" and that the court "may extend the time for filing of such motions for one additional period not to exceed ten days." In this case, the trial court attempted to extend the period for which Starnes could file his motion for new trial beyond that permitted by Rule 29.11.[4] The jury returned its guilty verdict on January 15, 2008, thus beginning the time for which Starnes had to file his motion for new trial. *216 Nonetheless, on January 16, 2008, the trial court entered an order that Starnes's time to file a motion for new trial would not begin until "the court enters an order on the remaining issue" regarding whether it would sentence Starnes on the Class C or B felony. Despite the trial court's express warning to Starnes that the Court may not have jurisdiction to so expand the time to file his motion for new trial, Starnes apparently relied on this order in waiting until February 26, 2008, to file his motion for new trial. We do not condone Starnes's failure to timely file his motion for new trial because only he can ensure that his claims are properly preserved for review by this Court. However, we note that the failure to timely file a motion for new trial does not preclude this Court's review of any alleged error. State v. Johnson, 150 S.W.3d 132, 136 (Mo.App. E.D.2004) ("In this case, the record clearly indicates Defendant was sentenced improperly, resulting in a manifest injustice and a miscarriage of justice. Therefore, we exercise our discretion and review for plain error [notwithstanding the fact that Defendant failed to timely file his motion for new trial].") Plain error review requires this Court to find a "manifest injustice or a miscarriage of justice" pursuant to Rule 30.20. The Supreme Court of Missouri just recently held in Severe that "[b]eing sentenced to a punishment greater than the maximum sentence for an offense constitutes plain error resulting in manifest injustice." Severe, 307 S.W.3d at 642. "`Where it appears that a defendant has been improperly sentenced as a prior or persistent offender, plain error review is appropriate.'" State v. Manley, 223 S.W.3d 887, 892 (Mo.App. W.D.2007) (quoting State v. Stephens, 88 S.W.3d 876, 885 (Mo.App. W.D.2002)). "A defendant cannot by waiver confer jurisdiction on the court to impose a sentence not authorized by law." State v. Prell, 35 S.W.3d 447, 450 (Mo.App. W.D.2000). Because the trial court erred when sentencing Starnes as a "chronic offender" instead of as an "aggravated offender," Starnes was sentenced to a punishment greater than the maximum allowable sentence as a matter of law. Thus, this constituted plain error resulting in manifest injustice. Severe, 307 S.W.3d at 641-43.[5] Finally, we reject the State's argument that Starnes "waived any challenge to the timing of the court's determination of Appellant's chronic offender status." The State insinuates that this waiver by Starnes took place on two separate occasions, and accordingly each one will be analyzed separately. To begin with, the State points to the fact that Starnes did not object during the following colloquy that transpired between the Court and the State immediately prior to the case being submitted to the jury: The Court: It's time to invite the jury in.... Anything else we need to talk about before the jury comes in? The State: Judge, the only other issue is the priors. The Court: Well, that's not a jury issue. The State: No, not a jury issue. The Court: The jury's waiting. Let's get the jury issues in their hands, and *217 then we can talk about Court issues as you like. (Emphasis added.) Starnes could not have been expected to make a specific objection based on Section 577.023 to the above comments because all the Court stated was that the State would be free to "talk" about "Court issues." The trial court was correct in its assertion that the issue of prior criminal convictions was not a "jury issue," and thus Starnes could not be expected to object to this truism. In response to the State's argument that Starnes had waived this issue by not objecting, even the trial court later acknowledged that it did not consider Starnes's silence to constitute a waiver of this issue when it made the following statement: "Well, the record will be plain enough that I was not relying on the agreement of the parties in doing what I did." As discussed previously, the State went well beyond talking about the issue of Starnes's prior conviction, and the trial court actually heard further evidence on this issue on which the Court made the ultimate finding that Starnes was a chronic offender. In its last attempt to demonstrate that Starnes is not entitled to plain error review, the State argues that Starnes waived this issue after the jury had returned its verdict and the reversible error had already been committed. Specifically, after the jury returned its guilty verdict, the trial court held a hearing on the issue of Starnes's alleged fourth prior conviction. At that hearing, the Court expressly found that its previous findings were insufficient to sentence Starnes as a chronic offender. For the reasons explained previously, there can be no doubt that the trial court then erred by acting upon the erroneous belief that "proof and argument's still open as to the fourth intoxication-related offense." The State is correct that Starnes's trial counsel later stated, after the jury returned its verdict, that he would not object to the State "trying to gather some more information" as it pertained to Starnes's fourth municipal conviction and setting it over for a hearing for that purpose. But we do not believe that this statement by trial counsel should preclude this Court from reviewing for plain error because had Starnes's trial counsel objected, the trial court would not have been able to take corrective action in light of the fact that the error in question was irreconcilable pursuant to Section 577.023. The sanction of waiver only takes on meaning when a "timely objection would have allowed the trial court to take corrective action," and here it would have been impossible for Starnes to "sandbag" the trial court on the issue in light of all the circumstances. State v. Dueker, 990 S.W.2d 670, 682 (Mo.App. E.D.1999). When Starnes's trial counsel came back for the subsequent hearing and immediately objected to the State introducing further evidence in this regard, the State and trial court were in no worse of a position than they were after the case was submitted to the jury. We must also note that the case law that the State cites simply does not support its argument that Starnes somehow waived this issue. For example, the State quotes Emery, 95 S.W.3d at 103, for the proposition that "because the defendant `chose to sit on his statutory right,'" "he waived it," but this principle was directed solely as to whether the defendant in Emery waived his right to jury sentencing which is not at issue here. In fact, Emery actually supports the conclusion that Starnes had no duty to object to the State's failure to prove the fourth conviction prior to the submission of the case to the jury because in Emery the defendant did not so object at trial. Id. at 102. Yet the Supreme *218 Court of Missouri still "remanded the matter for re-sentencing without regard to prior or persistent offender status" in light of the fact that the State adduced no evidence at trial of the defendant's relevant prior convictions. Id. at 100. Finally, the State attempts to analogize the instant case to State v. Anderson, 294 S.W.3d 96 (Mo.App. E.D.2009). It should be noted that Anderson was decided prior to the Supreme Court's decision in Severe and the outcome of Anderson may have been different following the Supreme Court's later holding. In addition, Anderson is different from the instant case for at least two reasons. In Anderson, during trial the defendant stipulated that he had prior "pleas of guilty" during which he was represented by counsel, and based on these stipulations the trial court made a finding that he was a prior offender. Id. at 99. Here, Starnes never stipulated that he had four prior convictions; to the contrary, once the evidentiary issue was raised by the trial court, Starnes never conceded that the State proved beyond a reasonable doubt that he was represented by counsel or waived that right as it pertains to his 12/15/97 guilty plea. Moreover, after the case was submitted to the jury in Anderson, the trial court made an additional finding that the defendant was a persistent offender, and in doing so the trial court expressly advised the defendant that such a finding could well violate the Supreme Court of Missouri's holding regarding "the timing of this finding... under State v. Emery." Id. at 99. The defendant expressly stated that he did not object, and this led the Eastern District to conclude as follows: Here, when the trial court proposed to take judicial notice of a file and to make a finding that Anderson was a persistent offender after the case had been submitted to the jury, it asked Anderson whether he had an objection. Anderson responded that he did not, and it should be noted that Anderson was fully aware of the trial court's error because the trial court pointed it out to him and still he chose to acquiesce in the trial court's conduct. As a result, Anderson affirmatively waived review of this claim of error. Id. at 100. For reasons already expanded upon at length, Anderson does not govern the resolution of the instant dispute. Under the guidance of Severe and the Supreme Court of Missouri's other relevant precedents, we conclude that a limited remand is required for the trial court to re-sentence Starnes as an "aggravated offender" because "[b]eing sentenced to a punishment greater than the maximum sentence for an offense constitutes plain error resulting in manifest injustice." Severe, 307 S.W.3d at 642. Point granted. Conclusion Because Starnes was improperly sentenced as a chronic offender to ten years imprisonment, his sentence is hereby vacated and the cause is remanded with instructions that Starnes be resentenced as an aggravated offender. All concur. NOTES [1] All statutory citations are to RSMo 2000 as updated through the 2007 Cumulative Supplement, unless otherwise indicated. [2] In its original information the State alleged that it was a conviction for DWI. On the first day of trial the State filed, without objection, a substitute information alleging that it was a conviction for BAC. [3] The majority in Severe analyzes section 558.021.2 as the relevant statute, when in fact as the dissent correctly notes "this case deals with 577.023." 307 S.W.3d at 642 n. 4 (Breckenridge, J., dissenting). Indeed, the distinction between these two statutes is irrelevant for the purposes of this analysis because "[b]oth statutes contain identical language that requires presentation of such evidence prior to the case's submission to the jury." Id. [4] All rule citations are to the Missouri Supreme Court Rules (2010), unless otherwise indicated. [5] In concluding that a manifest injustice occurred, we note that the trial court's error in sentencing Starnes as a chronic offender not only sentenced him to a term of imprisonment longer than that permitted by law, it also had other collateral consequences because 577.023.6 provides that "[n]o chronic offender shall be eligible for parole or probation until he or she has served a minimum of two years imprisonment."

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2273045/

317 S.W.3d 621 (2010) J.K.M., Plaintiff-Appellant, v. Kenneth J. DEMPSEY, M.D., Defendant-Respondent. No. SD 29791. Missouri Court of Appeals, Southern District, Division One. July 28, 2010. *622 Daniel H. Rau, Cape Girardeau, MO, for Appellant. Robert J. Amsler, Jr., and David L. Hares, St. Louis, MO, for Respondent. DON E. BURRELL, Judge. J.K.M. ("Plaintiff")[1] appeals the trial court's dismissal of his civil damages action against Kenneth J. Dempsey, M.D. ("Defendant") *623 based on Plaintiff's failure to timely file the health care affidavit required by section 538.225.[2] Although Plaintiff attempted to avoid characterizing his claims against Defendant as based on medical negligence, the factual averments set forth in Plaintiff's petition required that such an affidavit be filed. Because Plaintiff did not file a health care affidavit within the time allowed by statute, the trial court was required to dismiss Plaintiff's action without prejudice upon Defendant's motion and its judgment doing so is affirmed. Factual and Procedural Background When reviewing the trial court's dismissal of a petition, we treat the facts pleaded as true and construe all averments liberally and favorably to the appellant. Kanagawa v. State, 685 S.W.2d 831, 834 (Mo. banc 1985). In accordance with that standard, the following is a summary of the factual averments of Plaintiff's petition. On April 4, 2001, Plaintiff was taken by his mother to Ferguson Medical Group in Sikeston, Missouri for the treatment of warts he had on his right hand. At that medical facility, Defendant told Plaintiff and his mother that he was going to inject Plaintiff with the "famous Swiss wart burner vaccine." Defendant then inserted an 18-gauge needle into Plaintiff's right buttock and injected what he later revealed to Plaintiff's mother was merely a saline solution.[3] Plaintiff claims that Defendant did not have Plaintiff's consent to insert the needle into his body or inject him with saline solution and that any alleged consent was obtained by fraud and deceit. Plaintiff's claims against Defendant were characterized as breach of fiduciary duty and assault and battery. Plaintiff's petition further alleged that "as a direct and proximate result of the aforementioned breach of fiduciary duty by [Defendant], [Plaintiff] has suffered physical injury, severe emotional distress, depression, great indignity, humiliation, nervousness, anxiety and worry." Along with his answer to Plaintiff's petition, Defendant filed a "Motion to Dismiss for Failure to File Health Care Affidavit, pursuant to Section 538.225[.]" The trial court heard Defendant's motion to dismiss on June 26, 2008, at which time it granted Plaintiff thirty days to obtain the required health care affidavit. Plaintiff obtained the affidavit of Dr. James E. Palen, M.D. on July 11, 2008. Presumably in response to the filing of that affidavit, the trial court held a follow-up hearing on July 24, 2008. At that hearing, Defendant again moved to dismiss the petition, based on several alleged deficiencies in the affidavit obtained from Dr. Palen. Defendant's specific complaints were: a) It states that the health care provider believes [Defendant] breached the standard of care but fails to use the language set forth in the statute leaving to question whether the health care provider believes [Defendant] failed to use such care as a reasonably prudent and careful health care provider would have under similar circumstances; b) It states the health care provider believed the breach of the standard of care was the proximate and direct cause of injury but fails to follow the statutory requirement that the health care provider must believe that [Defendant] failed to use such care as a reasonably prudent *624 and careful health care provider would have under similar circumstances; c) It fails to state whether James Palen, M.D. is licensed; d) It fails to state whether James Palen, M.D. is currently practicing or whether he authored the written opinion within five years of his retirement; e) It states that James Palen, M.D. is a general practitioner and he is not in the specialty of [Defendant], who practiced as a dermatologist and; f) The health care affidavit fails to provide the address and qualifications of James Palen, M.D. Defendant supported his motion with an affidavit in which he set out his specialization as a board-certified dermatologist. At the close of this hearing, the trial court granted Plaintiff an additional thirty days in which to obtain an appropriate health care affidavit. Plaintiff then filed an amended health care affidavit four days after the trial court's thirty-day deadline had expired. Plaintiff apparently understood that his amended affidavit was still deficient and requested by motion additional time, up to September 19, 2008, to obtain an amended affidavit in conformity with the trial court's order. Although the trial court granted this request for additional time, Plaintiff never filed such an amended affidavit.[4] On September 18, 2008, Defendant filed his "Fourth Amended Motion to Dismiss for Failure to File Health Care Affidavit Pursuant to § 538.225, R.S.Mo[.]" This motion asserted, among other things, that the trial court lacked the "power to extend the time for [Plaintiff] to submit an affidavit pursuant to § 538.225, R.S.Mo. after the expiration of the first one hundred eighty (180) days." On April 1, 2009, the trial court entered an order dismissing Plaintiff's case. On May 26, 2009, the trial court incorporated its previous order of dismissal and designated it as a judgment. Plaintiff now appeals that judgment of dismissal. Analysis Plaintiff's two points on appeal are not in compliance with the requirements of Rule 84.04(d).[5] As Defendant has addressed Plaintiff's points on the merits and we do not believe the deficiencies substantially impede appellate review, we review Plaintiff's points ex gratia. See DeLong Plumbing Two, Inc. v. 3050 N. Kenwood LLC, 304 S.W.3d 784, 788 (Mo.App. S.D. 2010). The gist of Plaintiff's first point is that the trial court erred in requiring him to obtain a health care affidavit at all "in that there was no medical treatment provided by [Defendant] and he: breached the fiduciary duty owed to [Plaintiff]; that [Plaintiff] was assulted [sic] and battered by [Defendant]; and, that [Plaintiff] is entitled to puntivie [sic] damages as a result of the breach of fiduciary duty and/or being assaulted and battered." Plaintiff's second point alleges, in toto, "The trial court erred in finding that the affidavit filed by [Plaintiff] in compliance with § 538.225 was deficient." Standard of Review We review the grant of a motion to dismiss by the circuit court de novo. Gibbons v. J. Nuckolls, Inc., 216 S.W.3d 667, 669 (Mo. banc 2007). Matters of statutory interpretation and the application of the statute to specific facts are also reviewed *625 de novo. Boggs ex rel. Boggs v. Lay, 164 S.W.3d 4, 23 (Mo.App. E.D.2005). Point I: Was an Affidavit Required? Section 538.225 provides: 1. In any action against a health care provider for damages for personal injury or death on account of the rendering of or failure to render health care services, the plaintiff or the plaintiff's attorney shall file an affidavit with the court stating that he or she has obtained the written opinion of a legally qualified health care provider which states that the defendant health care provider failed to use such care as a reasonably prudent and careful health care provider would have under similar circumstances and that such failure to use such reasonable care directly caused or directly contributed to cause the damages claimed in the petition. 2. As used in this section, the term "legally qualified health care provider" shall mean a health care provider licensed in this state or any other state in the same profession as the defendant and either actively practicing or within five years of retirement from actively practicing substantially the same specialty as the defendant. 3. The affidavit shall state the name, address, and qualifications of such health care providers to offer such opinion. 4. A separate affidavit shall be filed for each defendant named in the petition. 5. Such affidavit shall be filed no later than ninety days after the filing of the petition unless the court, for good cause shown, orders that such time be extended for a period of time not to exceed an additional ninety days. 6. If the plaintiff or his attorney fails to file such affidavit the court shall, upon motion of any party, dismiss the action against such moving party without prejudice. 7. Within one hundred eighty days after the filing of the petition, any defendant may file a motion to have the court examine in camera the aforesaid opinion and if the court determines that the opinion fails to meet the requirements of this section, then the court shall conduct a hearing within thirty days to determine whether there is probable cause to believe that one or more qualified and competent health care providers will testify that the plaintiff was injured due to medical negligence by a defendant. If the court finds that there is no such probable cause, the court shall dismiss the petition and hold the plaintiff responsible for the payment of the defendant's reasonable attorney fees and costs. Section 538.225 (emphasis added). Missouri courts have interpreted this section as applying to more than just medical negligence causes of action. Our Supreme Court has stated that "by using the words `any action' in sec. 538.225.1, the legislature clearly demonstrated its intent that the statute not only apply to a negligence action" but should include other claims of personal injury against a health care provider. Budding v. SSM Healthcare Sys., 19 S.W.3d 678, 680 (Mo. banc 2000). The legislature also "intended to impose specific limitations on the traditional tort causes of action available against a health care provider." Id. "Included in these limitations is [ ... ] the requirement that the cause of action be dependent upon an affidavit by a `legally qualified health care provider' of failure to exercise reasonable care attributable to the defendant health care provider[.]" Id. (quoting section 538.225). *626 The appropriate question to ask when determining if a health care affidavit is required is whether the allegations against the defendant arise from the defendant's actions as a health care provider.[6]See Jacobs v. Wolff, 829 S.W.2d 470, 472 (Mo.App. E.D.1992). The plaintiff in Jacobs sued Dr. Wolff on theories of tortious interference with contract, negligent infliction of emotional distress, negligence, and prima facie tort. Id. at 471. The Eastern District held that section 538.225 applied because the claim for damages related to wrongful acts alleged against a health care provider, regardless of how the claims were characterized by the plaintiff. Id. at 472. See also Gaynor v. Washington Univ., 261 S.W.3d 650, 653-54 (Mo. App. E.D.2008) (a health care affidavit is still required by section 538.225 in a personal injury action in which proof is based on res ipsa loquitur). "Health care services" are statutorily defined in Section 538.205(5) as Any services that a health care provider renders to a patient in the ordinary course of the health care provider's profession or, if the health care provider is an institution, in the ordinary course of furthering the purposes for which the institution is organized. Professional services shall include, but are not limited to, transfer to a patient of goods or services incidental or pursuant to the practice of the health care provider's profession or in furtherance of the purposes for which an institutional health care provider is organized[.] Section 538.205(5). See also Mello v. Giliberto, 73 S.W.3d 669, 679 (Mo.App. E.D. 2002) (quoting section 538.205(5) and holding that a health care affidavit was required when the plaintiff's true claims related to the wrongful acts of health care providers in providing health care services to the patient and the requested damages were for the patient's personal injuries and resulting death). This court addressed whether the health care affidavit required by section 538.225 must be filed in an action based on an intentional tort in St. John's Reg'l Health Ctr., Inc. v. Windler, 847 S.W.2d 168, 171 (Mo.App. S.D.1993). In St John's, expounding on Jacobs, we articulated the test as follows: "[I]f a court determines that the relationship of the parties is that of health care provider and recipient and that the `true claim' relates only to the provision of health care services, then the health care affidavit is mandatory." Id. at 171. After applying this test, we concluded that the plaintiff's "true claim" required the filing of a health care affidavit because *627 her claim (characterized as false imprisonment) was based on "the incorrect—or totally absent—medical determination that she needed to be confined." Id. at 171. The Western District, in Vitale v. Sandow, held that a health care affidavit was required in a suit for libel brought against physicians who published letters stating that the plaintiff's "physical symptoms were due to malingering." 912 S.W.2d 121, 122 (Mo.App. W.D.1995). The court held that the statements were of a medical diagnosis and "constituted [the doctors'] evaluation of [the plaintiff's] condition, which is the precise reason he was referred to these doctors." Id. at 122. Further, the court determined that the central issue at trial would be whether the plaintiff was, in fact, malingering. Id. For this reason, "the basis of [the plaintiff's] true claim for damages is that the doctors' diagnosis was incorrect," and a medical affidavit was therefore required. Id. In the case at bar, Plaintiff's petition avers that Plaintiff "went to [Defendant's] medical practice to obtain medical treatment for various skin conditions including warts." The petition then claims that Defendant "owed a fiduciary duty to [Plaintiff] to properly inform [Plaintiff] of the medical benefits of the treatment to be performed to properly obtain his informed consent to participate in such treatment." The petition further claims that Defendant "breached his fiduciary duty of obtaining consent to a worthless and painful course of medical treatment [...]." (Emphases added). Plaintiff's true claim is that Defendant failed to appropriately obtain informed consent and rendered improper medical services. "`The basic philosophy in malpractice cases is that the doctor is negligent by reason of the fact that he has failed to adhere to a standard of reasonable medical care and that consequently the service rendered was substandard and negligent.'" Wuerz v. Huffaker, 42 S.W.3d 652, 656 (Mo.App. E.D.2001) (quoting Aiken v. Clary, 396 S.W.2d 668, 673 (Mo. banc 1965)). "This applies whether the alleged malpractice consists of improper care or treatment or a failure to sufficiently inform a patient to enable the patient to give informed consent to the treatment." Wuerz, 42 S.W.3d at 656. Because the true nature of Plaintiff's claim was that he suffered personal injury as a result of Defendant's rendering of health care services, the trial court did not err in finding that Plaintiff was required to file a health care affidavit pursuant to section 538.225. Point I is denied. Point II: Sufficiency of Affidavit Irrelevant Because Not Timely Filed Section 538.225 requires that a health care affidavit "shall be filed no later than ninety days after the filing of the petition unless the court, for good cause shown, orders that such time be extended for a period of time not to exceed an additional ninety days." Section 538.225.5. "If the plaintiff or his attorney fails to file such affidavit the court shall, upon motion of any party, dismiss the action against such moving party without prejudice." Section 538.225.6 (emphasis added). "When a statute mandates that something be done by providing that it `shall' occur and also provides what results `shall' follow a failure to comply with the statute, it is clear that it is mandatory and must be obeyed." SSM Health Care St. Louis v. Schneider, 229 S.W.3d 279, 281 (Mo.App. E.D.2007). The trial court is required to dismiss the case if the plaintiff does not file the affidavit within the statutory time period. Gaynor v. Washington Univ., 261 S.W.3d at 652-53 (Mo.App. E.D.2008). *628 Plaintiff filed his Petition on April 20, 2007, and filed his first health care affidavit on July 11, 2008—over a year after his petition was filed. This delay was well beyond the absolute 180-day limit imposed by section 538.225. Because section 538.225 required the trial court to dismiss Plaintiff's petition (upon Defendant's motion) after the maximum time allowed for the filing of the health care affidavit had passed, the court committed no error in doing so. Whether Plaintiff's tardy affidavit otherwise complied with the requirements of section 538.225 is moot. Plaintiff's second point is also denied, and the trial court's judgment of dismissal is affirmed. BARNEY, J., and BATES, P.J., concur. NOTES [1] The events described in Plaintiff's petition were alleged to have occurred when Plaintiff was twelve years' old. Plaintiff's petition was filed six years later. Because this lawsuit was prosecuted in Plaintiff's own name, we presume it was not filed until after his eighteenth birthday. See Rule 52.02 (requiring that civil actions by minors "may be commenced and prosecuted only by a duly appointed guardian of such minor, or if there is no such guardian, by a next friend appointed in such civil action[.]") Rule 52.02(a), Missouri Court Rules (2007). As the record does not reveal the actual date of Plaintiff's birth, we identify him only by initials out of an abundance of caution. In any event, Plaintiff will have attained the age of majority by the time any new lawsuit might be filed. [2] Unless otherwise indicated, all statutory references are to RSMo, Cum.Supp.2006. [3] Defendant's purported reason for injecting the saline was for its placebo effect. [4] The amended affidavit Plaintiff did file was ruled defective by the trial court in its Judgment and Order dated April 1, 2009. [5] All rule references are to Missouri Court Rules (2010). [6] Plaintiff argues in support of his first point that Defendant was not a "health care provider" in this case because "the relationship between a health care provider and a recipient is a consensual relationship[,]" that the consent necessary is an informed one, and Plaintiff did not consent to the insertion of the needle into his buttock. We cannot reconcile this argument with Plaintiff's admission at oral argument that the fiduciary duty he alleges Defendant breached arose out of the doctor-patient relationship. Plaintiff has also failed to provide any support for the notion that the consent necessary to create a doctor-patient relationship is dependent on consent to undergo specific procedures within a course of treatment. The cases cited by Plaintiff do not help him. In Corbet v. McKinney, 980 S.W.2d 166 (Mo.App. E.D.1998), it was held that no physician-patient relationship with defendant was created when the patient's personal physician merely contacted the defendant physician by telephone and discussed the patient's case. In Spruill v. Barnes Hosp., 750 S.W.2d 732 (Mo.App. E.D.1988), it was held that the plaintiff's breach of contract action was actually a malpractice claim, which was effectively barred under the applicable statute of limitation. In Barnhoff v. Aldridge, 327 Mo. 767, 38 S.W.2d 1029 (1931), it was held that the claim the plaintiff characterized as a breach of contract action was actually a medical malpractice action barred by the applicable statute of limitation.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2273071/

23 Cal. App. 4th 1285 (1994) 28 Cal. Rptr. 2d 699 ERIC JACOBSON, Plaintiff and Appellant, v. SIMMONS REAL ESTATE, Defendant and Respondent. Docket No. C016159. Court of Appeals of California, Third District. March 28, 1994. *1288 COUNSEL Eric Jacobson, in pro. per., for Plaintiff and Appellant. Shepard & Haven, Mark A. Hurst, Nancy L. Dye and Karen E. Halbo for Defendant and Respondent. OPINION SIMS, J. Plaintiff obtained a judgment against defendant for breach of a written contract and was awarded his costs. Although he is not an attorney and appeared in the action pro se, plaintiff sought an award of attorney fees pursuant to the attorney fee clause of the contract for the time he spent on the case. The trial court declined to award the requested fees. On appeal, plaintiff contends he was entitled to a fee award as a matter of law, the denial of fees violates his state and federal rights to due process and equal protection, and the amount of his fee request was reasonable. We affirm. FACTS AND PROCEDURAL BACKGROUND Plaintiff rented a storage locker from defendant. During a seven-year period, plaintiff made numerous late payments of rent which were accepted *1289 by defendant. However, when plaintiff fell behind in rent in April 1986, defendant entered his locker without prior notice to plaintiff and sent its contents to an auction house which consigned the items to a landfill. Plaintiff filed a complaint in propria persona, and the matter was ordered to judicial arbitration. Plaintiff retained an attorney to represent him in that proceeding. The arbitrator found that defendant had systematically received plaintiff's late payments and was estopped from demanding strict compliance with the terms of the rental agreement. Plaintiff was awarded $1,500 "together with costs of suit as submitted by cost bill." The award was entered as a judgment on October 28, 1992, and notice of entry of judgment was mailed the same day. On November 16, 1992, plaintiff filed a memorandum of costs which was untimely under the 15-day limit of rule 870 of the California Rules of Court. (Further references to rules are to the California Rules of Court.) Plaintiff noticed a motion for attorney fees of $2,138.95 for work performed by his counsel, plus $5,900 in "fees compensating plaintiff for his labor in self-representation...." The motion was based on Code of Civil Procedure section 1033.5, subdivision (a)(10)(A), which allows attorney fees when authorized by contract, and the South Davis Storage Rental Agreement (Rental Agreement) which provided: "If it shall become necessary for either party hereto to engage attorneys to institute legal action for the purpose of enforcing its rights hereunder or for the purpose of defending legal action brought by the other party hereto, the party or parties prevailing in such litigation shall be entitled to receive all costs, expenses and fees (including reasonable attorney's fees) incurred by it in such litigation (including appeals)." The motion also relied on the decision in Consumers Lobby Against Monopolies v. Public Utilities Com. (1979) 25 Cal. 3d 891 [160 Cal. Rptr. 124, 603 P.2d 41] (CLAM). On November 20, 1992, defendant noticed a motion to tax certain of plaintiff's costs. Plaintiff filed his opposition the day before the scheduled hearing, which was untimely under rule 317(a) which requires that papers opposing a motion must be filed five days prior to the hearing. The trial court excused the untimely filings pursuant to Code of Civil Procedure section 473, awarded plaintiff various costs and the attorney fees claimed on behalf of his counsel, and omitted to award any funds for plaintiff's self-representation. Plaintiff appeals. *1290 DISCUSSION I (1) Before considering plaintiff's substantive arguments, we consider his contention the trial court failed to give his fee request due consideration because it ruled on the merits of the request immediately after deciding that plaintiff's untimely filings were excusable under Code of Civil Procedure section 473. The point lacks merit. The trial court received plaintiff's opposition to the motion to tax costs on December 9, 1992, the day before the scheduled hearing. During a conversation with a court employee, plaintiff was informed that the court would not consider the opposition because it was not filed a sufficient number of days prior to the hearing. However, at the hearing, the trial court excused the untimely filing. Nothing in the record suggests the trial court was unfamiliar with plaintiff's untimely submission or was otherwise unprepared to rule on the fee request. Absent any indication to the contrary, we presume the trial court regularly performed its official duty and was sufficiently prepared to rule on the fee request. (Evid. Code, § 664; cf. People v. Wader (1993) 5 Cal. 4th 610, 661 [20 Cal. Rptr. 2d 788, 854 P.2d 80].) II (2a) Plaintiff contends that, as a nonattorney party who successfully represented only himself in civil litigation, he is entitled as a matter of law to fees reasonably compensating him for his efforts at self-representation. We are not persuaded. As the prevailing party, plaintiff was statutorily entitled to recover his costs. (Code Civ. Proc., § 1032.) Recoverable costs include "Attorney fees, when authorized by ... Contract." (Code Civ. Proc., § 1033.5, subd. (a)(10)(A).) Because the Rental Agreement listed attorney fees among the recoverable "costs, expenses and fees," plaintiff was entitled to recover his attorney fees as an item of costs. The Rental Agreement provided that attorney fees are recoverable "If it shall become necessary for either party hereto to engage attorneys to institute *1291 legal action...."[1] (Italics added.) Notwithstanding this explicit contractual language, plaintiff claims it is "now the accepted rule in California" that fees need not have been "actually incurred" through the payment of funds to a third party. The point is unavailing. Older California decisions declared the rule that an attorney appearing pro se is not entitled to an award of attorney fees. (E.g., City of Long Beach v. Sten (1929) 206 Cal. 473 [274 P. 968].) However, in Renfrew v. Loysen (1985) 175 Cal. App. 3d 1105, 1107-1110 [222 Cal. Rptr. 413] the court, relying on dictum in CLAM, questioned the soundness of the rule and held that an attorney prosecuting his own contractual claim pro se is entitled to attorney fees under Civil Code section 1717 (pp. 1109-1110; see Hambrose Reserve, Ltd. v. Faitz (1992) 9 Cal. App. 4th 129, 131 [11 Cal. Rptr. 2d 638]; Leaf v. City of San Mateo (1984) 150 Cal. App. 3d 1184, 1187-1189 [198 Cal. Rptr. 447].) Plaintiff acknowledges that Renfrew involved an attorney who represented herself in litigation, but claims there is "no well-reasoned basis for a rule which allows awards of contractually-based attorney's fees to a licensed attorney who successfully represents himself but disallows awards of contractually-based attorney's fees to a competent nonattorney who successfully represents only himself." Plaintiff is incorrect. The "well-reasoned basis" for distinguishing between a licensed attorney who represents himself or herself and a nonattorney who does likewise is that the written contract which provides for the fee award specifies that it is an attorney fee. Plaintiff and defendant could have specified that they would be liable for "legal services fees" rather than "attorney fees," had that been their intention, but they did not do so. Plaintiff disagrees, suggesting that the term "attorney's fees" refers to "the activity of performing legal representation" rather than to "the status of the actor as a member of the bar." Plaintiff relies on CLAM and the dissenting opinion of Justice Crosby in Atherton v. Board of Supervisors (1986) 176 Cal. App. 3d 433, 440 [222 Cal. Rptr. 56], but his reliance on these authorities is misplaced. (3) Generally, a party is entitled to attorney fees only if specifically authorized by statute or private agreement. (Code Civ. Proc., § 1021.) There *1292 are, however, three well-established exceptions to the rule: the "common fund," "substantial benefit," and "private attorney general" theories. (CLAM, supra, 25 Cal.3d at p. 906.) (4) Under the common fund theory, "`"one who expends attorneys' fees in winning a suit which creates a fund from which others derive benefits, may require those passive beneficiaries to bear a fair share of the litigation costs."'" (Id. at p. 907, quoting Serrano v. Priest (1977) 20 Cal. 3d 25, 35 [141 Cal. Rptr. 315, 569 P.2d 1303].) CLAM held that in quasi-judicial rate reparation cases the Public Utilities Commission has discretion to award attorney fees under the "common fund" exception, and that where nonattorneys appear before the commission in a representative capacity as permitted by commission rules, nonattorneys may be awarded funds from the common fund. (Id. at pp. 905-909, 913-915.) In his Atherton dissent, Justice Crosby argued that CLAM "considered the term `attorney fees' [as used in Serrano] to be descriptive not of the person who performs a particular service but of the service performed." (176 Cal. App.3d at p. 440 (dis. opn. of Crosby, J.).) (2b) Plaintiff urges us to construe the term "attorney's fees" as used in the Rental Agreement in the manner suggested by Justice Crosby. We decline to do so. The words of a contract are to be understood in their ordinary and popular sense unless used by the parties in some technical sense. (Civ. Code, § 1644; Xuereb v. Marcus & Millichap, Inc. (1992) 3 Cal. App. 4th 1338, 1344 [5 Cal. Rptr. 2d 154].) In ordinary usage, an "attorney" is a person "legally appointed to act for another." (American Heritage Dict. (2d college ed.) p. 140.) As stated by the majority in Atherton v. Board of Supervisors, supra, 176 Cal. App. 3d 433, "... the very use of the term `"attorney fees" presupposes that the prevailing party has been represented by an attorney.' [Citation.]" (Id. at pp. 436-437, quoting Pitts v. Vaughn (3d Cir.1982) 679 F.2d 311, 312.) The parties could not have intended the technical meaning suggested by Justice Crosby because the contract was executed in November 1978, prior to the decisions in CLAM and Atherton. Plaintiff claims an interpretation of "attorney's fees" which requires a pro se litigant to pay his opponent's attorney fees if he loses but precludes him from recovering his own self-representation fees if he wins violates the reciprocity provision of Civil Code section 1717 which provides in pertinent part: "(a) In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce the contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract ... shall be entitled to reasonable attorney's fees in addition to other costs." The point is meritless. *1293 Civil Code section 1717 ensures reciprocity by providing that any successful litigant, not just the one named in the contract, can recover fees that have been paid to an attorney. (Xuereb v. Marcus & Millichap, Inc., supra, 3 Cal. App.4th at p. 1342.) Nothing in the statutory language suggests the Legislature intended to establish parity between pro se and represented litigants by entitling the former to legal service fees whenever the contract provides for an award of attorney fees.[2] Plaintiff claims that a construction of the Rental Agreement which precludes an award of legal services fees to a pro se litigant runs afoul of Civil Code section 1649 which provides: "If the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it." Plaintiff claims defendant "could not reasonably have believed that [plaintiff], as the signatory of the form (i.e. adhesion) contract, understood the attorney's fees clause as precluding [plaintiff's] ability to recover costs, expenses and fees under it in the event [he] could not afford to hire an attorney and had to sue [defendant] himself." We disagree. Defendant reasonably could believe that plaintiff would understand the term "attorney's fees" in its ordinary sense, as "`presuppos[ing] that the prevailing party has been represented by an attorney.'" (Atherton v. Board of Supervisors, supra, 176 Cal. App.3d at p. 436.) Whether plaintiff actually understood the term in that manner is immaterial. (5) Finally, plaintiff claims a favorable construction of the Rental Agreement is required by Civil Code section 1654 which provides in pertinent part: "In cases of uncertainty not removed by the preceding rules, the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist." Plaintiff claims the phrase "attorney's fees" must be construed against defendant who selected the standard-form rental agreement. (Citing Graham v. Scissor-Tail, Inc. (1981) 28 Cal. 3d 807 [171 Cal. Rptr. 604, 623 P.2d 165].) However, section 1654 operates only when the uncertainty has not been removed by other rules of construction. Here, the ambiguity is removed by interpreting the phrase "attorney's fees" in its ordinary and popular sense. (Civ. Code, § 1644.) *1294 Were we to adopt the definition of "attorney's fees" suggested by plaintiff, we would effectively revise the parties' contract to create an obligation beyond the scope of the language they selected. "It is widely recognized that the courts are not at liberty to revise an agreement under the guise of construing it. Neither abstract justice nor the rule of liberal interpretation justifies the creation of a contract for the parties which they did not make themselves." (Hinckley v. Bechtel Corp. (1974) 41 Cal. App. 3d 206, 211 [116 Cal. Rptr. 33]; see Diaz v. United California Bank (1977) 71 Cal. App. 3d 161, 172 [139 Cal. Rptr. 314].) "`[T]he courts cannot rewrite a contract to avoid difficulty or hardship. [Citation.]'" (Pacific Architects Collaborative v. State of California (1979) 100 Cal. App. 3d 110, 123 [166 Cal. Rptr. 184], quoting Wyandotte Orchards, Inc. v. Oroville-Wyandotte Irrigation Dist. (1975) 49 Cal. App. 3d 981, 986-987 [123 Cal. Rptr. 135].)[3] III (6) Plaintiff next contends the "cost statute ... as interpreted by the trial court" violates his state and federal due process and equal protection rights because it "permits recoupment of attorney fees to those successful litigants who could afford to hire an attorney (and as interpreted by California appellate courts, by litigants who are themselves attorneys), but denies said fees as costs to successful and competent litigants who could not afford to hire an attorney and had to prosecute their cases themselves." The point has no merit. The denial of self-representation fees was compelled by the parties' private agreement to reimburse attorney fees rather than legal services fees, not by the trial court's interpretation of Code of Civil Procedure section 1033.5. The private act of adopting contractual terms does not constitute state action. It is only when state law encourages the decisionmaking procedure in question or when a statute permits that which had been prohibited by common law, that the decisions of private parties can potentially be considered state actions. (King v. Meese (1987) 43 Cal. 3d 1217, 1228-1230 [240 Cal. Rptr. 829, 743 P.2d 889] [private insurers' setting rates *1295 not state action; no due process violation]; Payne v. Superior Court (1976) 17 Cal. 3d 908, 914 [132 Cal. Rptr. 405, 553 P.2d 565].) State law did not encourage the parties to adopt an attorneys-only limitation, nor was such a limitation forbidden at common law. (King, supra, at p. 1230.) Nevertheless, plaintiff claims equal protection principles apply because the contract is enforceable by the state courts. (Citing Shelley v. Kraemer (1947) 334 U.S. 1 [92 L. Ed. 1161, 68 S. Ct. 836, 3 A.L.R. 2d 441].) Assuming without deciding that plaintiff is correct, his argument fails because attorneys and nonattorneys are not similarly situated. (In re Eric J. (1979) 25 Cal. 3d 522, 530 [159 Cal. Rptr. 317, 601 P.2d 549].) Of necessity, attorneys are subject to a myriad of expenses related to maintaining a license and a practice which nonattorneys do not bear. The parties could rationally conclude that the greater expenses associated with employment of an attorney (or even self-representation by an attorney) warrants recoupment of fees from the losing litigant.[4] IV (7) Defendant requests an award of sanctions on the ground that plaintiff's appeal is frivolous because he brought this appeal "for the sole purpose of harassing the respondent/defendant." Defendant relies on plaintiff's assertion in his verified memorandum of costs that he "persisted in representing [himself] in this case ... in order to hold defendant to account for his wrongful action, in the belief this would deter similarly wrongful conduct by defendant against the many hundreds of present and future tenants of South Davis Storage...." Defendant's reliance on this passage is misplaced because the act of seeking redress of wrongful actions cannot be equated with "harassment" without chilling unreasonably litigants' access to the courts. (In re Marriage of Flaherty (1982) 31 Cal. 3d 637, 650 [183 Cal. Rptr. 508, 646 P.2d 179].) "The standards for determining whether an appeal is frivolous are contained in In re Marriage of Flaherty (1982) 31 Cal. 3d 637 [183 Cal. Rptr. 508, 646 P.2d 179]. Flaherty provides that an appeal may be found frivolous and sanctions imposed when (1) the appeal was prosecuted for an improper motive — to harass the respondent or delay the effect of an adverse judgment; or (2) the appeal indisputably has no merit, i.e., when any reasonable attorney would agree that the appeal is totally and completely without merit. *1296 (Id. at p. 650.) [¶] Flaherty cautions that `any definition [of a frivolous appeal] must be read so as to avoid a serious chilling effect on the assertion of litigants' rights on appeal. Counsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win on appeal. An appeal that is simply without merit is not by definition frivolous and should not incur sanctions.' (Ibid.)" (Bach v. County of Butte (1989) 215 Cal. App. 3d 294, 310 [263 Cal. Rptr. 565], italics in original.) We will not impose sanctions here. DISPOSITION The judgment is affirmed. Defendant's request for sanctions is denied. Puglia, P.J., and Raye, J., concurred. NOTES [1] Plaintiff contends, without citation of authority, that the phrase "to engage attorneys" is "nothing more than incidental, somewhat carelessly drawn lead-in verbiage in a boilerplate attorney's fee clause, which describe the manner in which litigation is ordinarily, but not always, instituted, i.e., by attorneys." Plaintiff's attempt to avoid the ordinary meaning of the language is not persuasive. (See Civ. Code, § 1644.) [2] Plaintiff claims that, even if he is not entitled to a fee award for his work on the entire case, he is entitled to fees for the arbitration phase because the Legislature has specified that arbitration hearings "shall provide the parties themselves maximum opportunity to participate directly in the resolution of their disputes...." (Code Civ. Proc., § 1141.10, subd. (b)(2).) Plaintiff is wrong. Nothing in this language suggests the Legislature intended to supplant provisions of private agreements requiring the payment of attorney fees with a generalized directive that every prevailing party is entitled to recover legal service fees whether they were represented by an attorney or not. [3] Plaintiff relies on several federal cases which awarded fees to nonattorney parties who prevailed under federal statutes providing for awards of attorney fees. (Cuneo v. Rumsfeld (D.C. Cir.1977) 553 F.2d 1360 [100 App.D.C. 184] [attorney appearing in propria persona]; Quinto v. Legal Times of Washington, Inc. (D.D.C. 1981) 511 F. Supp. 579, Holly v. Acree (D.D.C. 1976) 72 F.R.D. 115, Jones v. United States (D.D.C. 1979) 81 F.R.D. 700, Marschner v. Department of State, etc. (D.Conn. 1979) 470 F. Supp. 196.) Here, however, the attorney fee obligation is circumscribed by the parties' private agreement, not by a federal statute. Nothing in any of the cited cases suggests that the present parties intended the term "attorney's fees" as used in their agreement to encompass fees for legal services provided by nonattorneys. [4] In light of our conclusion it is unnecessary to consider plaintiff's contention that the hours he claimed for labor in self-representation were reasonable.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2273666/

991 A.2d 100 (2010) 191 Md. App. 196 Jose Luis RODRIGUEZ v. STATE of Maryland. No. 2852, September Term, 2006. Court of Special Appeals of Maryland. March 24, 2010. *103 Anne K. Olesen, on the brief, Washington, DC, for appellant. *104 Michelle W. Cole (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, for appellee. Panel: SALLY D. ADKINS,[*] WOODWARD, WRIGHT, JJ. WOODWARD, J. Jose Luis Rodriguez, appellant, was arrested on June 25, 2006, in connection with two burglaries of Fratelli's Restaurant in Salisbury, Maryland. On December 7, 2006, a jury trial was held in the Circuit Court for Wicomico County, Maryland, before Judge Donald C. Davis. The jury found appellant guilty of two counts each of burglary in the second degree, burglary in the fourth degree, and theft over $500, and one count of wearing, carrying or transporting a handgun in a vehicle on public roads. The judge sentenced appellant to an aggregate sentence of 33 years in prison, with all but 17 years suspended, and five years probation. Appellant was also ordered to pay restitution to the owners of the restaurant. On appeal, appellant presents four issues[1] for our review, which we have condensed into two questions: I. Did the trial court err in denying the motion to suppress appellant's statement to police? II. Did the trial court err or abuse its discretion in limiting appellant's examination of two witnesses? For the following reasons, we shall affirm the judgments of the circuit court. BACKGROUND In June 2006, Fratelli's Restaurant was burglarized twice. The first burglary occurred early in the morning on June 23, 2006. At approximately 2 a.m., Sergeant Brian Waller of the Salisbury University Police Department reported to the restaurant in response to a security alarm, but did not see anything when he arrived. Nicholas Sakellis, one of the owners of Fratelli's Restaurant, testified that he discovered the restaurant had been burglarized when he arrived at about 9 a.m. He testified that he found the restaurant's side-door locked, an office window broken, a crowbar on the desk in the restaurant's office, and a Fratelli's bank bag missing. According to Sakellis, the missing bank bag contained seven or eight thousand dollars. He testified that nothing else was taken from the restaurant. Eugene Peed, a Salisbury University employee, testified that he saw a dark-colored Honda parked in the back of Fratelli's early in the morning on June 23, 2006. In the early morning hours of June 25, 2006, Fratelli's was burglarized again. *105 Sergeant Waller responded again, along with Officer Kelly Craven of the Salisbury University Police Department. Sergeant Waller testified that they saw a red Oldsmobile Alero parked in the restaurant's parking lot, and it was warm to the touch. He stated that Officer Craven informed him that the car had not been there when she patrolled the area earlier that morning. Both Sergeant Waller and Officer Craven testified that, when they went to inspect Fratelli's, a man ran out of the restaurant and fled. Sergeant Waller chased him on foot, as did Sergeant Anthony Glenn, another police officer who responded to the scene of the burglary. Sergeant Waller and Officer Glenn lost sight of the suspect, searched the Salisbury University campus for forty-five minutes, but did not locate the man. Sergeant Waller testified that he momentarily got a view of the man's side profile, and for the most part, only saw the man's back or his "back side at an angle." He described the man as six feet tall, slenderly built, light-skinned black or dark-skinned white, and wearing a light colored ball cap and a white t-shirt. At about 8:30 a.m., on June 25, appellant was arrested in the Fratelli's parking lot when he arrived in a dark-colored Honda Accord with Corey Clark, Jessica Murphy, and Jose Luis Gonzales Ruperto. Appellant was driving the Honda toward the Alero, which was owned by Clark. Several officers testified that Ruperto was acting "antsy," "nervous, [and] kind of flighty" as he moved "all over the back of the [Honda]" and reached down "underneath the driver's seat." Appellant was described as being out of it, going "in and out of being asleep and awake" while seated in the car. Sergeant Waller testified that at one point, appellant was "laid over the steering wheel making a sound that sounded to me like he was snoring with his eyes shut and drool." Comparing appellant and Ruperto with the suspect he had chased hours before, Sergeant Waller testified that, although Ruperto was a little taller, he could not exclude either of them. During a search of the Honda, officers found a handgun under the driver's seat and tools that matched the color and brand of the crowbar that was left at Fratelli's following the first burglary. The Alero was also searched; in the glove compartment officers found appellant's wallet containing his Maryland driver's license, social security card, and $810 in cash. Officer Bobbie Jo Donoway drove appellant to the Sheriff's Office following his arrest. Officer Donoway testified that, during the transport, Mr. Rodriguez went "from one extreme to the other;" he was "completely enraged" one moment and then "fall[ing] asleep" the next. According to Officer Donoway, appellant's "eyes were extremely red, and he was very upset." Officer Donoway testified that she asked him a series of questions in an effort "[t]o calm him down and to make sure that he was, in fact, okay." She testified that, at one point appellant said: "I can't keep doing this, I'm already in trouble, I'm going to jail, I did it." At appellant's trial, on December 7, 2006, Clark and Murphy testified for the State. Clark stated that she had known appellant for a couple months, and they had spent a lot of time together. In the beginning her relationship with appellant was "sexual," but then they were "just friends." Clark testified that she would use heroin and crack cocaine with appellant. Clark stated that on the evening of June 24, she and appellant were at "[s]ome house over on the west side" with Murphy, Ruperto, and a Puerto Rican man. According to Clark, she, Murphy, appellant, and Ruperto were all "getting high" over *106 the course of the next 12 hours. Clark testified that appellant left the house around 3 a.m. on June 25 and returned a couple hours later without her car. Clark also testified that she remained in one room the entire night with Murphy and Ruperto, and was "awake that whole time." Clark also testified that a few days before June 25, she saw a bank bag in appellant's car and appellant "all of a sudden" was in possession of a large sum of money that he kept in stacks folded in a towel in his closet. Murphy testified that on the evening of June 24, she, Clark, appellant, Ruperto, and some other men were at a house on the west-side. Murphy admitted that she, Clark, appellant and Ruperto were doing drugs and engaging in sexual activities. Murphy stated that appellant left the house sometime in the early morning for "maybe an hour and 45 minutes." She only learned that appellant had left when she noticed that Clark's car was not outside the house. Murphy testified, as did Clark, that later in the morning of June 25, appellant drove her, Clark, and Ruperto to Fratelli's restaurant to pick up Clark's car. Appellant testified in his own defense. According to appellant, on the evening of June 24, 2006, he and Ruperto rode in appellant's Honda to meet Clark and Murphy in the parking lot of Fratelli's Restaurant. Appellant testified that Clark and Murphy were in Clark's Alero, and the four agreed to leave the Alero at Fratelli's so that they could ride in one car to buy drugs for the night. Appellant testified that they then drove to a house "just to have sex and use some drugs." Appellant testified that the four left the house in his Honda and returned to Fratelli's parking lot to pick up Clark's car. Finally, appellant stated that the cash in his wallet was part of the $2000 that his parents had sent him to rent an apartment. The defense also called Ruperto to testify. Outside the presence of the jury, Ruperto invoked his Fifth Amendment privilege against self-incrimination when asked about the burglaries. With the jury present, Ruperto was questioned about the gun found under the driver's seat of appellant's Honda and invoked his Fifth Amendment privilege. Following Ruperto's testimony, Deputy Mark Walker took the stand. Deputy Walker testified that Ruperto admitted to him that the gun was his. Deputy Walker explained that, after Ruperto testified at appellant's trial, Ruperto was taken to the holding area. At some time thereafter, Ruperto started beating on the holding cell door. Deputy Walker asked him if there was something wrong. Ruperto responded, in broken English, "gun mine, charges mine, he's innocent." At the conclusion of trial on December 7, 2006, the jury returned a verdict, finding appellant guilty of two counts of burglary in the second degree, two counts of burglary in the fourth degree, and two counts of theft over $500, and one count of wearing, carrying or transporting a handgun in a vehicle on public roads. The judge sentenced appellant to 15 years' in prison with all but seven years suspended on one count of second degree burglary, to a consecutive 15 years' imprisonment with all but seven years suspended on the other count of second degree burglary, and to a consecutive three years' incarceration on the hand gun charge. Appellant was placed on five years' probation upon release from incarceration. The remaining convictions merged for sentencing purposes. Appellant was also ordered to pay restitution to the owners of Fratelli's Restaurant. On December 26, 2006, appellant timely noted this appeal. *107 We will set forth additional facts and proceedings below as necessary to discuss the questions presented. DISCUSSION I. Motions Hearing On December 1, 2006, at a motions hearing, the defense sought to suppress statements made by appellant to Officer Donoway while appellant was being transported to the Sheriff's Office in her patrol vehicle following his arrest. The defense moved to exclude appellant's statements, arguing that his statements were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and additionally were not voluntarily given. Officer Donoway was the only witness who testified at the suppression hearing. Her testimony is set forth in its entirety: [PROSECUTOR]: State[] your name and agency. [WITNESS]: Deputy [] Donoway with the Wicomico County Sheriff's Office, currently assigned to the SRO Division. [PROSECUTOR]: On June 25th of 2006 at approximately 9:46 a.m., were you working at the Sheriff's Office? [WITNESS]: Yes, I was. [PROSECUTOR]: What was your assignment at that time? [WITNESS]: I was actually assigned to the airport duty when I was called to a different location to transport a subject for detectives at our agency. [PROSECUTOR]: What location were you called to? [WITNESS]: 306 South Salisbury Boulevard. [PROSECUTOR]: Is that Fratelli's Restaurant? [WITNESS]: Yes, it is, yes. [PROSECUTOR]: When you went to that location, did you make contact with someone? [WITNESS]: I did. I made contact with First Sergeant Tim Robinson who advised me that I needed to transport a subject for the detectives to the Sheriff's Office. [PROSECUTOR]: Had you had any involvement in the investigation of that case? [WITNESS]: I did not. I [was] working the airport prior to the transport. [PROSECUTOR]: Did you have any involvement in the investigation after the transport? [WITNESS]: No, I didn't. [PROSECUTOR]: Who was the subject that Sergeant Robinson asked you to transport? [WITNESS]: He didn't actually advise me of the subject's name prior to the transport. I found out later that it was Jose Luis Rodriguez. [PROSECUTOR]: Do you see that person in the courtroom? [WITNESS]: Yes, sitting at the defense table. [PROSECUTOR]: And the record reflect she identified [appellant]. Were you in a marked police car? [WITNESS]: Yes, I was. [PROSECUTOR]: Where did you place [appellant]? [WITNESS]: In the front seat passenger's side. [PROSECUTOR]: Was he in handcuffs? [WITNESS]: Yes, he was. [PROSECUTOR]: Do you have any information regarding whether he was advised of his Miranda rights prior to transport? [WITNESS]: I do not. *108 [PROSECUTOR]: Did you advise him of Miranda rights before transport[?] [WITNESS]: I did not. I did not place him under arrest. [PROSECUTOR]: During the transport, were you intending to interrogate him for investigative purposes? [WITNESS]: No, I was [not]. [PROSECUTOR]: Describe what happened during the transport, please. [WITNESS]: Actually, the other officers placed him in my patrol vehicle. When we were in route back [appellant] became very angry and upset using profanity. He was enraged that he was being taken into custody. He went from moments of complete outrage[] to that he seemed like he was going to pass out. I kept asking [appellant], are you okay? He was mumbling things. Sometimes he used profanity and I couldn't understand him. One of the things he said to me was I can't do this anymore, I have to stop this. [Appellant] then slumped down into the seat and his eyes were extremely red, and I was concerned that something was wrong with him. So I asked him, again, are you okay? [Appellant] replied, yes. I asked [appellant]—what [] lead to this was that he was upset. He said that he didn't do anything, that he was going to go to jail. And I asked [appellant], I said, have you been arrested before because, you know, that's something to consider if you haven't been arrested before. I don't know why you are so upset. He had made the comment, yes, for taking a car. I can't keep doing this. I'm already in trouble. I'm going to jail. I did it. After that, I placed [appellant] into a cell at the Sheriff's Department and I let detectives know that he was there, and he was fine, and I let them know some of the comments that he had made because I wasn't familiar with [appellant] or anything that was going on at Fratelli's, but obviously, he was upset about something. [PROSECUTOR]: What was your purpose in speaking to [appellant] during the transport? [WITNESS]: I was concerned. Like I said, he went from moments of outrage to anger where I was trying to calm him down during the transport to where he acted like he was going to pass out. So I didn't know if he was okay. If I needed to take him to the hospital. So I wanted the detectives to also know that he went from one extreme to the other, you know, in case there was an episode with them when they actually came back and spoke to him. [PROSECUTOR]: What was your purpose in asking, have you been arrested before? [WITNESS]: I was trying to calm the subject down. Obviously, he did not want to go to jail. I was trying to make him feel better. If he didn't have a record, you know, maybe things would work out better for him. [PROSECUTOR]: Was your purpose in speaking to [appellant] to obtain incriminating information, statements from him? [WITNESS]: No, it was not. [PROSECUTOR]: Did he appear to you to be under the influence of drugs or alcohol? [WITNESS]: I'm not sure if he was under the influence of drugs or alcohol or if he was suffering from sleep deprivation. *109 I'm not sure. He was not acting in his right mind, no. [PROSECUTOR]: Did you make any threats to [appellant] before, during transport? [WITNESS]: No, I did not. [PROSECUTOR]: Did you make any promises to him to get him to speak to you? [WITNESS]: No, I did not. [PROSECUTOR]: Apply any coercion to him whatsoever? [WITNESS]: No, I did not. [PROSECUTOR]: Thank you. Your witness. CROSS-EXAMINATION [DEFENSE COUNSEL]: You indicated, and these are my words, you indicated that he was out of it. Is that a fair characterization of what was [going] on? [WITNESS]: Yes. [DEFENSE COUNSEL]: And he was coming back into the ability to converse with you and then he didn't have the ability to converse with you, is that correct? [WITNESS]: He went from using profanity and cussing me out and every single law enforcement officer out that was at the scene to not talking and acting like he was going to go to sleep. Those are the two extremes that he was going back and forth from. [DEFENSE COUNSEL]: The particular statement that I'm concerned about is the statement where at the end of the statement is, I did it. That was a statement that he made immediately following your question, have you ever been arrested before, is that correct? [WITNESS]: Actually, he made other comments before he said, I did it. [DEFENSE COUNSEL]: I understand that, but the question that you offered to him most recent in time prior to him saying I did it was have you ever been arrested before, is that correct? [WITNESS]: To the best of my knowledge, yes. [DEFENSE COUNSEL]: And when you asked him have you ever been arrested before, he answered the question that he had? [WITNESS]: He didn't say, yes, I had. He said, I keep doing this. I'm already in trouble. I'm going to jail. I did it. He did not say he had actually been in jail, no. [DEFENSE COUNSEL]: Did you record that statement in some way in terms of notes or— [WITNESS]: Yes. Actually when I came back to the Sheriff's Department, I spoke to the detectives, and they asked me to write a supplement in which I did. [DEFENSE COUNSEL]: Okay. The questions, are you okay, were those questions that were out to [appellant] before, after, or both before and after the point in time that you asked the question, have you ever been arrested? [WITNESS]: During the entire transport, I kept asking him if he was okay. [DEFENSE COUNSEL]: So you asked him that question after you asked him, have you ever been arrested? [WITNESS]: Yes. I asked him if he was okay when I placed him in the cell. [DEFENSE COUNSEL]: Okay. How many times did you ask him that question? [WITNESS]: I can't recall. *110 [DEFENSE COUNSEL]: The extent of your interaction with [appellant] lasted just during the period of time of transport in the car? [WITNESS]: Yes, sir. [DEFENSE COUNSEL]: Then you placed him in a cell? [WITNESS]: Yes, sir. [DEFENSE COUNSEL]: Any other law enforcement officers in the car during the time of transport? [WITNESS]: No, sir. [DEFENSE COUNSEL]: I don't have any further questions of this witness, Your Honor. (Emphasis added). In denying defense counsel's motion to suppress, the trial court stated: Well, here, I agree with [defense counsel] at least in part. There, obviously, is no question that [appellant] was in custody at the time of these particular statements, and it's clear also that there was interrogation in the sense that there was a question asked. But, and in the sense that any question, I guess, could be by definition an interrogation, but within the context here, interrogation refers to either expressed questioning or its functional equivalent or anything else, any other actions or words on the part of law enforcement that the police should know are reasonably likely to elicit an incriminating response from a defendant. In this particular case because [appellant] was acting in what the officer determined to be an—I will describe it— as a strange way, having personality swings from being enraged and cursing to then seeming to go to sleep or perhaps be on the threshold of passing out, she asked the defendant on several occasion[s] if he was all right, and at least a number of those occasions would indicate, would respond not necessarily, as I understand it with saying he was all right, but rather talking about his situation that he can't do this anymore, things of that sort, and there came a time when in what the officer determined to be a, would be perhaps a question that might permit her to calm [appellant] down asked if he had been arrested before. And if that's obviously a question. Is it a question that either this officer or a reasonable officer would ha[ve] reason to believe or know was reasonably likely to elicit an incriminating response? Well, if saying, Yes, I have been arrested, I have been arrested before would be incriminating, then certainly it's interrogation within the meaning of these rules. But whether or not he has been arrested before, it would seem to me is irrelevant to and is certainly not inculpatory so far as this particular case is concerned because what is inculpatory here relates to the circumstances and facts of this case, not some other case which may have—for which he may have been arrested. And for [appellant] to respond to that, yes, I did it, I'm going to jail referring to this case is not a response that I think a reasonable officer or this officer would have occasion to reasonably expect, so whether or not he had been given Miranda warnings, I think, is immaterial with respect to the question of whether or not there was interrogation within the Supreme Court and Maryland decisions relating to interrogation without the benefit of Miranda. As to whether or not the statement was voluntary, of course, that decision is made based on the totality of the circumstances. *111 It is the State's burden of proof to establish beyond a reasonable doubt, but I think it's perhaps—there is Judge Moylan indicated that when the issue is voluntariness, the failure of the defendant to testify almost forecloses any chance of prevailing. And under the officer['s] testimony, clearly, she considered [appellant] to be acting in a strange way because of mood swings and was concerned enough with that, that she asked him on a number of occasions if he was all right. On the other hand, it's obvious that she was satisfied with his responses to that extent, because at least from the evidence, she took him on to the Sheriff's Department or to the Detention Center, placed him in lockup there rather than taking him to the hospital which she made those inquiries, she said, to determine whether or not she should divert to the hospital. No evidence of threats, promises, coercion and anything else, and based on the totality of the circumstances, I'm satisfied that the statement was voluntary as well, so I will deny the motion. (Emphasis added). A. Standard of Review When reviewing a circuit court's disposition of a motion to suppress evidence, we "consider only the facts and information contained in the record of the suppression hearing." Longshore v. State, 399 Md. 486, 498, 924 A.2d 1129 (2007). "`[W]e view the evidence and inferences that may be reasonably drawn therefrom in a light most favorable to the prevailing party on the motion,'" in this case, the State. Owens v. State, 399 Md. 388, 403, 924 A.2d 1072 (2007) (quoting State v. Rucker, 374 Md. 199, 207, 821 A.2d 439 (2003)). We defer to the trial court's factual findings and uphold them unless they are shown to be clearly erroneous. Owens, 399 Md. at 403, 924 A.2d 1072. We also make our "`own independent constitutional appraisal,'" by reviewing the relevant law and applying it to the facts and circumstances of this particular case. Longshore, 399 Md. at 499, 924 A.2d 1129 (quoting Jones v. State, 343 Md. 448, 457, 682 A.2d 248 (1996)). B. Miranda Appellant first argues that the trial court erred by not granting defense counsel's motion to suppress the statements Officer Donoway obtained from appellant. Specifically, appellant contends that Officer Donoway's questioning of appellant constituted custodial interrogation and was not subject to an exception from Miranda for questions relating to routine booking or public safety, "as it did not occur during routine booking and was not justified by an emergency." Further, appellant argues that Officer Donoway's questions were the functional equivalent of custodial interrogation, because she should have known that her questions were likely to elicit an incriminating statement from appellant. Finally, appellant contends that the trial court improperly interpreted Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), when it based its decision "on whether a direct response to the question `Have you ever been arrested before?' would be incriminating." The proper inquiry under Innis, appellant asserts, was "whether, under the totality of the circumstances, Officer Donoway's questions were reasonably likely to elicit an incriminating response, not whether a direct response to her questions would have been incriminating." (Emphasis in original). *112 According to appellant, a correct application of Innis would have led the court to the conclusion that, "[g]iven [appellant's] impaired mental condition, his emotional volatility, and his demonstrated tendency to ramble in response to the officer's initial questions, Officer Donoway should have known that continued questioning was likely to elicit an incriminating response." We disagree and explain. In Miranda, the Supreme Court held that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." 384 U.S. at 444, 86 S.Ct. 1602. Custodial interrogation refers to "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id. When a suspect is in custody, "[p]rior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." Id. A person may waive the effectuation of his or her Miranda rights, "provided the waiver is made voluntarily, knowingly and intelligently." Id. It is well established that Miranda warnings are not required in the absence of interrogation. Innis, 446 U.S. at 300, 100 S.Ct. 1682 ("It is clear therefore that the special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation."); see also Ashford v. State, 147 Md.App. 1, 37, 807 A.2d 732 (2002). In Innis, the Supreme Court stated that the term "interrogation" under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. 446 U.S. at 301, 100 S.Ct. 1682 (footnote omitted). In other words, custodial interrogation involves "either express questioning or its functional equivalent." Id. at 300-01, 100 S.Ct. 1682. Appellant's initial argument focuses on the phrase "express questioning" in Innis. Appellant puts forth a two-part analysis. First, appellant contends that Officer Donoway's questioning of appellant constituted "express questioning," because she directly questioned appellant when appellant was in custody. Second, appellant argues that the only exceptions to the "express questioning" test of Innis are where the officer's questions relate to routine booking or public safety. Appellant, in effect, contends that any question posed by a law enforcement officer to a suspect in custody, other than a question relating to routine booking or public safety, constitutes "express questioning," under Innis and thus is violative of Miranda. The legal basis for appellant's argument was rejected by the Court of Appeals in the recent case of Prioleau v. State, 411 Md. 629, 984 A.2d 851 (2009). In Prioleau, undercover detectives observed the petitioner enter a home at 1610 Regester Street, emerge with a bag of suspected cocaine, and hand the bag to Keith Evans, who strolled back and forth on Regester Street engaging in "hand to hand transactions" with individuals who approached. Id. at 633, 984 A.2d 851. The police then arrested Evans and escorted him into the house at 1610 Regester Street, where numerous torn clear plastic bags were found *113 on the floor, indicating drug activity in the house. Id. at 634, 984 A.2d 851. The petitioner was also arrested, driven to 1610 Regester Street, and was walked up to the entrance of the house by the arresting officer. Id. When the petitioner reached the front door, a detective was standing there. Id. The detective said to the petitioner: "What's up, Maurice?" Id. The petitioner then said: "I'm not going in that house. I've never been in that house." Id. The Court of Appeals held that the above statements by the petitioner were not the product of either actual interrogation or its functional equivalent. Id. at 639, 984 A.2d 851. The Court began its analysis by observing that it is clear that (1) Petitioner was "in custody" when he made the inculpatory statement, and (2) none of the exceptions to the requirements of Miranda v. Arizona are applicable. Petitioner was therefore entitled to suppression of the statement at issue if that statement resulted from either actual interrogation or the functional equivalent of interrogation. Prioleau, 411 Md. at 638-39, 984 A.2d 851 (emphasis in original) (footnotes omitted). In addressing the issue of whether "What's up, Maurice?" constituted "actual interrogation," the Court stated that "it is very well settled that not every question constitutes `interrogation' of a suspect who is in custody when the question is asked." Id. at 639, 984 A.2d 851. The Court quoted with approval the case of Johnson v. State, 269 Ind. 370, 380 N.E.2d 1236, 1240 (1978), wherein the Supreme Court of Indiana stated: "The term `interrogation' has been defined as a process of questioning by law enforcement officials which lends itself to obtaining incriminating statements. Not every statement uttered by a police officer which is punctuated with a question mark will necessarily constitute an interrogation.... Rather, it is necessary to view the statement in the context in which it was made." Prioleau, 411 Md. at 639, 984 A.2d 851 (citation omitted) (alteration in original). The Court of Appeals went on to articulate the type of questions that constitute "actual interrogation" as those "directed to the issue of whether a suspect who is in custody has engaged in and/or has knowledge of criminal activity." Id. Finally, the Court cited to its opinion in Hughes v. State, 346 Md. 80, 95-96, 695 A.2d 132 (1997), for the principle that "`the critical inquiry is whether the police officer, based on the totality of the circumstances, knew or should have known that the question was reasonably likely to elicit an incriminating response.'" Prioleau, 411 Md. at 643, 984 A.2d 851. The Court concluded that the question "What's up, Maurice?" did not constitute actual or express interrogation contemplated by Miranda. Id. at 643, 645-46, 984 A.2d 851. In Smith v. State, 186 Md.App. 498, 974 A.2d 991, cert. granted, 410 Md. 702, 980 A.2d 482 (2009), Judge Charles Moylan, Jr. reached a similar conclusion in his scholarly synthesis of Miranda procedures and Miranda applicability rules. Judge Moylan wrote: What Precisely is Miranda Interrogation? In its simplest form, interrogation is an easy concept to grasp. It is a police officer asking a question of a suspect about the suspect's involvement in a crime. At the edges, however, the concept can get a little blurry. It is not always an orchestrated set of alternating questions and answers. Every actual question, moreover, is not necessarily followed by a question mark. *114 It has been the more shadowy concept of the functional equivalent of interrogation that Miranda has had to come to grips with in terms of its applicability. Id. at 540-41, 974 A.2d 991. Therefore, "express questioning" under Innis refers to the commonly understood concept of interrogation, namely, a law enforcement officer asking a question of a suspect in custody about the suspect's involvement in a crime or where, under the totality of the circumstances, the officer knew or should have known that the question was reasonably likely to elicit an incriminating response.[2] In the case sub judice, none of Officer Donoway's questions asked appellant about his involvement in a crime. Officer Donoway's repeated questions, "are you okay?," sought information about appellant's physical well-being. Officer Donoway's somewhat garbled question, "I asked [appellant]—what lead to this was that he was upset," was not an inquiry into appellant's involvement in a crime. Finally, the key question of "have you ever been arrested before," was directed toward appellant's prior contact with the criminal justice system and not with appellant's involvement in an earlier crime. Nevertheless, appellant argues that Officer Donoway's questioning "was still interrogation because Officer Donoway should have known that her questions were likely to elicit an incriminating response from [appellant]." We disagree. In Hughes, the Court of Appeals stated that the "[a]ssessment of the likelihood that an otherwise routine question will evoke an incriminating response requires consideration of the totality of the circumstances in each case, with consideration given to the context in which the question is asked." 346 Md. at 95, 695 A.2d 132. The intent of the police may be helpful in the analysis, but it is not dispositive. See State v. Conover, 312 Md. 33, 44 n. 6, 537 A.2d 1167 (1988); Innis, 446 U.S. at 301 n. 7, 100 S.Ct. 1682 ("This is not to say that the intent of the police is irrelevant, for it may well have a bearing on whether the police should have known that their words or actions were reasonably likely to evoke an incriminating response."). The police, however, "cannot be held accountable for the unforeseen results of their words or actions." Innis, 446 U.S. at 302, 100 S.Ct. 1682. Here, the question that produced appellant's incriminating response was "have you ever been arrested before." Appellant asks us to inquire, "whether, under the totality of the circumstances, Officer Donoway's questions were reasonably likely to elicit an incriminating response, not whether a direct response to her question[] would have been incriminating." The problem with this contention is that at the motions hearing defense counsel argued only that "an objective officer under the circumstances might expect that a question dealing with [appellant's] prior criminal behavior ... might elicit an incriminating response." (Emphasis added). Defense counsel did not claim that any other question, alone or in combination, played a role in causing the incriminating response. Thus appellant's challenge to the other questions posed by Officer Donoway has not been preserved for appellate review. See Maryland Rule 8-131(a). Nevertheless, we will consider all of the questions posed by Officer Donoway to appellant as a part of our consideration of the totality of the circumstances. *115 Officer Donoway was not involved in the investigation of the robberies at Fratelli's restaurant either before or after the transport of appellant to the Sheriff's Office. She was working at the airport when she was told to transport "a subject" to the Sheriff's Office. Officer Donoway did not know appellant's name and was not familiar "with [appellant] or anything that was going on at Fratelli's." During the transport, appellant displayed extreme mood swings—he "became very angry and upset using profanity" and then "he seemed like he was going to pass out." He kept going back and forth between the extremes. When appellant acted like he was going to pass out, Officer Donoway asked him if he was okay. The purpose of the question was to determine if Officer Donoway needed to take him to the hospital. Appellant answered "yes" (he was okay), and when they arrived at the Sheriff's Office, Officer Donoway told the detectives that appellant "was fine." During the times that appellant was angry and using profanity, Officer Donoway tried to calm him down. She asked appellant, in effect, why was he upset. Appellant answered that he did not do anything and that he was going to jail. Officer Donoway then asked him, "I said, have you ever been arrested before because, you know, that's something to consider if you haven't been arrested before." (Emphasis added). Officer Donoway testified that she was trying to make appellant "feel better," because if he did not have a record, "maybe things would work out better for him." Appellant responded, "yes, for taking a car. I can't keep doing this. I'm already in trouble. I'm going to jail. I did it." It is clear that Officer Donoway's only job was to transport appellant to the Sheriff's Office; she played no role in the criminal investigation of the robberies at Fratelli's restaurant. During the transport, Officer Donoway was called upon to respond to appellant's behavior. Her questions were directed to finding out if appellant was okay when he appeared to pass out or to calming him down when he was angry and using profanity. Officer Donoway testified that she had no intention of interrogating appellant during the transport for investigative purposes and that her purpose in speaking to appellant was not to obtain incriminating statements from him. Regarding the precise question at issue, "have you ever been arrested before," we agree with the trial court that the question was "irrelevant" to the criminal investigation of the instant case, and that appellant's initial answer, "yes, for taking a car," was "certainly not inculpatory so far as this particular case is concerned because what is inculpatory here relates to the circumstances and facts of this case, not some other case ... for which he may have been arrested." After having answered Officer Donoway's question appropriately, appellant proceeded to spontaneously make four statements having nothing to do with the question, the last of which was "I did it." After a consideration of the totality of the circumstances surrounding the transport of appellant to the Sheriff's Office by Officer Donoway, we cannot conclude that Officer Donoway should have known that her question to appellant, "have you ever been arrested before?," was "reasonably likely to elicit an incriminating response" from him. See Innis, 446 U.S. at 301, 100 S.Ct. 1682. Appellant's response, "I'm already in trouble. I'm going to jail. I did it," was "a classic `blurt,' to which the protections of Miranda do not apply." Prioleau v. State, 179 Md.App. 19, 30, 943 A.2d 696 (2008), aff'd, 411 Md. 629, 984 A.2d 851 (2009). Accordingly, we hold that *116 appellant's inculpatory statement did not result from "express questioning" in violation of Miranda. C. Voluntariness As a second basis for error, appellant argues that his statements to Officer Donoway were not voluntary, "because his mental impairment prevented him from knowing or understanding what he was saying." Appellant further complains that "[t]he State offered no other testimony to prove voluntariness," and the court erred when it based its decision regarding whether appellant's statements were voluntarily given "on Officer Donoway's conduct, rather than on [appellant's] demonstrated mental impairment." Appellant concludes that, because "[n]o other evidence supported the trial court's voluntariness finding[,] ... the statements should have been suppressed." Appellant's argument is without merit. When a defendant properly challenges the voluntariness of a confession or inculpatory statement in a pre-trial motion, the burden is on the State to affirmatively show voluntariness by a preponderance of the evidence. Harper v. State, 162 Md.App. 55, 72, 873 A.2d 395 (2005). "`The trial court's determination regarding whether a confession was made voluntarily is a mixed question of law and fact.'" Knight v. State, 381 Md. 517, 535, 850 A.2d 1179 (2004) (quoting Winder v. State, 362 Md. 275, 310-11, 765 A.2d 97 (2001)). We review the trial judge's ultimate decision on the issue of voluntariness de novo. Id. "We do not look, however, at the trial record for additional information, nor do we engage in de novo fact-finding." Id. In order to be deemed voluntary, a confession must satisfy the mandates of the State and Federal Constitutional provisions as well as Maryland non-constitutional law. Id. at 532, 850 A.2d 1179. The "`totality of the circumstances' [] governs the analysis of voluntariness under the State and Federal Constitutional provisions.'" Griner v. State, 168 Md. App. 714, 734, 899 A.2d 189 (2006) (quoting Burch v. State, 346 Md. 253, 266, 696 A.2d 443 (1997)). The test requires us to "look to all of the elements of the interrogation to determine whether a suspect's confession was given freely to the police through the exercise of free will or was coerced through the use of improper means. On the non-exhaustive list of factors we consider are the length of the interrogation, the manner in which it was conducted, the number of police officers present throughout the interrogation, and the age, education and experience of the suspect." Harper, 162 Md.App. at 72-73, 873 A.2d 395 (quoting Winder v. State, 362 Md. 275, 307, 765 A.2d 97 (2001)). Thus, "[o]rdinarily, the voluntariness of the defendant's inculpatory statement is determined based on a totality of the circumstances test." Harper, 162 Md.App. at 72, 873 A.2d 395. Maryland non-constitutional law, however, "`requires that "no confession or other significantly incriminating remark allegedly made by an accused be used as evidence against him, unless it first be shown to be free of any coercive barnacles that may have attached by improper means to prevent the expression from being voluntary."'" Harper, 162 Md.App. at 73, 873 A.2d 395 (quoting Winder v. State, 362 Md. 275, 307, 765 A.2d 97 (2001)). Under Maryland non-constitutional law a confession is involuntary when a defendant "is so mentally impaired that he does not know or understand what he is saying," or when the confession "is induced by force, undue influence, improper promises, *117 or threats." Hoey v. State, 311 Md. 473, 482-83, 536 A.2d 622 (1988). There is no evidence of force, threats, improper promises, or coercion of any kind. Appellant only challenges his statements under Maryland non-constitutional law because he claims that his mental impairment prevented him from knowing or understanding what he said. Accordingly, the "`crucial question'" becomes "`whether [appellant's] disclosure[] to the police w[as] freely and voluntarily made at a time when he knew and understood what he was saying.'" Id. at 482, 536 A.2d 622 (quoting Wiggins v. State, 235 Md. 97, 102, 200 A.2d 683 (1964)). "`Whether [appellant] was under the influence of a drug at the time of giving the incriminating statement is a factor to be considered in determining the voluntariness of that statement.'" Harper, 162 Md.App. at 83, 873 A.2d 395 (quoting Hof v. State, 337 Md. 581, 620, 655 A.2d 370 (1995)). In the instant case, Officer Donoway acknowledged that appellant "went from moments of outrage to anger ... to where he acted like he was going to pass out" and that appellant "was not acting in his right mind." Nevertheless, appellant responded directly and appropriately to Officer Donoway's questions. Appellant answered "yes" to the question, "are you okay?" When asked whether he had been arrested before, appellant answered "yes, for taking a car." Appellant's responses to Officer Donoway's questions convinced Officer Donoway that appellant was okay and that he was not in such a condition that he had to be taken to the hospital. In fact, upon arriving at the Sheriff's Office, Officer Donoway informed the detectives that appellant "was fine." Accordingly, we conclude that the State met its burden of proving, by a preponderance of the evidence, that appellant was not so mentally impaired that he did not know what he was saying or understand what was being said to him. When considering the totality of the circumstances under the State and Federal Constitutional provisions, we also conclude that appellant's statements were voluntary. Appellant was being transported to the Sheriff's Office by one officer who had no knowledge of appellant or the crime under investigation; appellant had been arrested before and thus was familiar with the process; he correctly answered the questions posed to him and his answers demonstrated that he understood the severity and consequences of his actions; and Officer Donoway was not forceful or vociferous, but rather attempted to ease some of appellant's concerns and calm him down. Based on the totality of the circumstances, we are persuaded that appellant freely confessed to Officer Donoway that he committed the burglary. Therefore, the motions judge did not err in denying appellant's motion to suppress. II. Examination of Two Witnesses Appellant argues that the trial court "infringed on [appellant's] right to present a full defense by not allowing him to introduce evidence implicating third-party guilt," which was the defense theory at trial. First, appellant contends that the court improperly limited defense counsel's examination of Sakellis regarding whether he ever suspected that Saul Hernandez, a former employee of Fratelli's, committed the burglary, when there was "a police report recording Sakellis's suspicions." Appellant insists that the excluded evidence was more than a "blind allegation," and its weight "was for the jury to decide." Second, appellant argues that "the trial court abused its discretion by not allowing *118 the defense to question [Ruperto] about the burglaries," when there was evidence that Ruperto "was a plausible alternative suspect in the burglaries." Appellant also asserts that the court's erroneous exclusion of evidence implicating Hernandez and demonstrating Ruperto's involvement in the burglaries was not harmless beyond a reasonable doubt. We disagree and explain. A. Standard of Review "The Confrontation Clause of the Sixth Amendment and Article 21 of the Maryland Declaration of Rights guarantee a defendant in a criminal case the right to confront the witnesses against him." Ebb v. State, 341 Md. 578, 587, 671 A.2d 974 (1996). This right, however, is limited by the trial court's discretion "to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Id. (internal quotations omitted). Therefore, "the scope of examination of witnesses at trial is a matter left largely to the discretion of the trial judge and no error will be recognized unless there is clear abuse of discretion." Thomas v. State, 143 Md.App. 97, 110, 792 A.2d 368 (internal quotations omitted), cert. denied, 369 Md. 573, 801 A.2d 1033 (2002). Limitation of cross-examination should not occur, however, until after the defendant has reached his constitutionally required threshold level of inquiry. Stated another way, although the scope of cross-examination is generally limited to the subjects raised on direct examination, within that limit a defendant should be free to cross-examine in order to elucidate, modify, explain, contradict, or rebut testimony given in chief. It is also proper to cross-examine as to facts or circumstances inconsistent with testimony, and to bring out the relevant remainder or whole of any conversation, transaction, or statement brought out on direct questioning. Finally, and particularly pertinent to the instant case, one should be allowed to cross-examine in order to determine the reasons for acts or statements referred to on direct examination. Smallwood v. State, 320 Md. 300, 307, 577 A.2d 356 (1990) (citations and internal quotations omitted). The trial court thus conducts a "balancing test:" the trial court "must allow a defendant wide latitude to cross-examine a witness as to bias or prejudices, but the questioning must not be allowed to stray into collateral matters which would obscure the trial issues and lead to the factfinder's confusion." Id. at 307-08, 577 A.2d 356 (citation omitted). B. Sakellis In his brief, appellant states that, immediately following the first burglary, Sakellis told police that he suspected that Hernandez had committed the first burglary. Appellant now complains that the court should have allowed him to question Sakellis regarding this statement and present the police report to the jury. At trial, defense counsel inquired into this matter during the cross-examination of Sakellis. Defense counsel asked Sakellis whether anyone by the name of Saul Hernandez had ever worked for him, and Sakellis responded, "No." Defense counsel pressed the issue further and the following ensued: [DEFENSE COUNSEL]: Your testimony today is that you didn't speak to law enforcement officers on the 23rd day of June and told them that you *119 suspected that Saul Hernandez had committed the burglary? [PROSECUTOR]: Objection. Move to strike. THE COURT: Basis? [PROSECUTOR]: It's not relevant. THE COURT: All right. [DEFENSE COUNSEL]: Your Honor, my theory is that someone other than [appellant] committed this crime. One of those suspects who could have been considered— [PROSECUTOR]: Objection. [DEFENSE COUNSEL]: Permission to approach? THE COURT: All right. (Whereupon, counsel approached the bench, and the following ensued.) [DEFENSE COUNSEL]: I have in my possession a report that was generated by a law enforcement officer on the 23rd day of June that indicates that [] Sakellis told that officer that he suspected that person— [PROSECUTOR]: Keep your voice down, please. [DEFENSE COUNSEL]: A person by the name of Saul Hernandez who had previously worked for Fratelli's had committed this crime. [PROSECUTOR]: It's based on pure blind speculation. Absolutely no proof whatsoever to make that allegation even if he did. THE COURT: Yes. I will sustain the objection. Later in the trial, defense counsel asked the trial court to revisit this issue: [DEFENSE COUNSEL]: Had I been permitted to, I would ask some [] further follow-up questions on a subject of [] Hernandez based on a report I received. My understanding is that [] Sakellis told the police officer who responded on the date of the first burglary that he believed that [Hernandez], a Hispanic employee who had worked for him for a few days had committed this crime. [] Sakellis indicated that he had employee papers with [Hernandez's] information on his desk and that Sakellis said that [Hernandez's] employee information was also missing. * * * [PROSECUTOR]: Also, I want on the record, Your Honor, that he gave absolutely no foundation for drawing that conclusion. THE COURT: Well— [PROSECUTOR]: And has testified here today that nothing else was missing except the money. THE COURT: Well, I understand. It seems to me ..., what is the purpose for which you want to pursue this line of inquiry? [DEFENSE COUNSEL]: I just want to develop as many plausible alternative suspects as I can for [appellant's] benefit. We have fingerprint testing that was available in the sense that there were fingerprints suitable for comparison found that were not compared to anyone beside my client under circumstances where []. Sakellis believed that this person may have been involved because certain items were taken during the course of the burglary. I believe that he is a plausible alternative suspect who should have been investigated, was not investigated, and is to the detriment to my client, that's the only reason I am making an issue out of it. THE COURT: All right. *120 You are not seeking to ask these questions from the impeachment standpoint. You are not trying to impeach [] Sakellis, but only to show that there is another plausible suspect who was not— [DEFENSE COUNSEL]: That's the purpose, yes. THE COURT: Okay. All right. Well, I will sustain the objection. Based on our review of the record, we agree with the State that appellant's allegation that Hernandez was a suspect "lacked any foundation." Defense counsel clearly stated that the purpose of his inquiry was not to impeach Sakellis; it was "to develop as many plausible alternative suspects... for [appellant's] benefit." The record, however, fails to support appellant's proffer as to what Sakellis' proposed testimony would have been. Sakellis had already testified that Hernandez never worked for him and that nothing was missing from the restaurant after the first burglary, except the money. Thus Sakellis had denied the very facts that appellant was seeking to elicit from him. Absent a factual predicate for defense counsel's further questioning regarding Hernandez's connection to the burglary, the court's allowance of the requested cross-examination would have served only to confuse the jury. See Smallwood, 320 Md. at 307, 577 A.2d 356. Therefore, the court did not abuse its discretion in sustaining the prosecutor's objection.[3] C. Ruperto Defense counsel also called Ruperto as a witness to establish that Ruperto was a plausible suspect with respect to the burglaries and the firearm counts. Prior to Ruperto's taking the stand, Ruperto's counsel informed the court that Ruperto intended to invoke his Fifth Amendment privilege against self-incrimination in response to all questions. The court permitted defense counsel to question Ruperto regarding his involvement in the burglaries outside the presence of the jury. In response to all questions, Ruperto exercised his Fifth Amendment privilege against self-incrimination. The court then permitted defense counsel to question Ruperto in front of the jury concerning the handgun recovered from under the driver's seat of appellant's Honda. Ruperto exercised his Fifth Amendment privilege as to all questions asked regarding the handgun. Appellant asserts that the court erred in refusing to allow defense counsel to question Ruperto about the burglaries before the jury. We need not address the merits of appellant's contention because, even assuming an abuse of discretion, appellant was clearly not prejudiced by the court's ruling. See Nottingham Vill., Inc. v. Balt. County, 266 Md. 339, 356, 292 A.2d 680 (1972) (noting that the trial court's decisions regarding matters concerning the nature and scope of cross-examination will only be disturbed upon a showing of a prejudicial abuse of discretion). After Ruperto asserted his Fifth Amendment privilege before the jury, he was taken to a holding cell where he admitted to Deputy Walker that the handgun was his. Defense counsel was allowed to reopen his case and call Deputy Walker as a witness. Deputy Walker testified that Ruperto told him in broken English, "gun mine, charges *121 mine, he's innocent." Because Ruperto's confession to the gun and the "charges" was before the jury, we conclude that appellant has not shown prejudicial abuse of discretion occasioned by the refusal of the trial court to allow defense counsel to question Ruperto about the burglaries before the jury.[4] JUDGMENTS OF THE CIRCUIT COURT FOR WICOMICO COUNTY AFFIRMED; APPELLANT TO PAY COSTS. ADKINS, J., dissenting. I respectfully dissent from the majority's holding that Officer Donoway's questions to Rodriguez did not violate Rodriguez's Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). I believe that Officer Donoway violated Rodriguez's Miranda rights the moment that her dialogue with him shifted from general inquiries about his well-being to specific inquiries about his prior arrest record. The Supreme Court's decision in Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), defined the meaning of "interrogation" for Miranda purposes. The rule in Innis is clear: "interrogation" includes both "express questioning" by a law enforcement officer and also "words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response." Id. at 301-02, 100 S.Ct. at 1689-90 (emphasis removed). The majority interprets Innis in light of the Court of Appeals's decision in Prioleau v. State, 411 Md. 629, 984 A.2d 851 (2009), to hold that Donoway's questioning of Rodriguez did not violate his Miranda rights. In that case, the Court of Appeals held that defendant Maurice Prioleau's Miranda rights were not violated when a detective asked Prioleau "[w]hat's up, Maurice?" at the scene of Prioleau's arrest. Prioleau, 411 Md. at 632, 984 A.2d at 852. The Court stated that it was not reasonably likely that the detective's greeting in that case would elicit an incriminating response. See id. at 651, 984 A.2d at 864. In my opinion, the majority construes Prioleau far too broadly. In the present case, Donoway's comments are by no means as innocuous as those at issue in Prioleau. Had Donoway gone no further than repeated inquiries into whether Rodriguez was "okay," she would not have run afoul of Miranda. Instead, she chose to question Rodriguez as to his past history with law enforcement and arrests, a topic that had nothing to do with calming him down, as she claimed, and everything to do with evoking a conversation about his problems with the law, including the circumstances of his present arrest. Donoway's question to Rodriguez is clearly distinguishable from the question posed in Prioleau, which was permissible in part because it did not involve "a question on anything that [involved] illegal activity." Prioleau, 411 Md. at 651, 984 A.2d at 864. Regardless of whether Donoway was credible in explaining that she had no intention of eliciting incriminating statements from Rodriguez through her questioning, her remarks do not pass muster under the objective standard imposed by Innis. 446 U.S. at 301-02, 100 S.Ct. at 1689-90. Because Donoway's questioning of Rodriguez was unconstitutional interrogation under Miranda, Rodriguez's statements to the officer should be suppressed. I would *122 vacate Rodriguez's conviction, and remand the case to the trial court for a new trial without this evidence. NOTES [*] Sally D. Adkins, now serving on the Court of Appeals, participated in the hearing and conference of this case while an active member of this Court; she participated in the adoption of this opinion as a specially assigned member of this Court. [1] Appellant's issues, in the words of his brief, are: 1. Whether the trial court erred by admitting the statements [appellant] made in response to Officer Donoway's explicit questioning in the absence of Miranda warnings. 2. Whether [appellant]'s mental impairment rendered the incriminating statements he made in response to Officer Donoway's questioning involuntary. 3. Whether the trial court erred by refusing to allow [appellant] the right to present a full defense by limiting his cross-examination of the complaining witness regarding an alternative suspect the witness had implicated. 4. Whether the trial court erred by refusing to allow [appellant] the right to present a full defense by questioning Jose Luis Gonzales Ruperto before the jury about Ruperto's involvement in the burglaries. [2] An incriminating response is one "whether inculpatory or exculpatory—that the prosecution may seek to introduce at trial." Rhode Island v. Innis, 446 U.S. 291, 301 n. 5, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) (emphasis in original). [3] We agree with the State that "[t]he fact that this statement was included in a police report makes this evidence no more relevant particularly where the statement may not have been accurate." [4] Defense counsel did not ask to recall Ruperto to the witness stand after learning of his confession.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2273802/

991 A.2d 216 (2010) 201 N.J. 417 Hermes REYES and Leonor Reyes, Plaintiffs-Appellants, v. Harry C. EGNER, Holly Egner, and Prudential Fox & Roach Realtors, Defendants-Respondents, and Harry C. Egner and Holly Egner, Defendants/Third-Party Plaintiffs, and Columbia Reyes, Third-Party Defendant/Fourth-Party Plaintiff, v. Prudential Fox & Roach Realtors, Fourth-Party Defendant. No. A-90 September Term 2008 Supreme Court of New Jersey. Argued October 27, 2009. Decided April 8, 2010. John J. Novak, Toms River, argued the cause for appellants (Mr. Novak, attorney; Deborah A. Plaia, on the briefs). Michael T. Kearns, New Brunswick, argued the cause for respondent Prudential *217 Fox & Roach Realtors (Hoagland, Longo, Moran, Dunst & Doukas, attorneys; Mr. Kearns and Dawn P. Marino, on the briefs). Barry S. Goodman, Woodbridge, argued the cause for amicus curiae New Jersey Association of Realtors (Greenbaum, Rowe, Smith & Davis, attorneys; Mr. Goodman, Jamie A. Yonks, and Steven B. Gladis, on the brief). William S. Bloom, Edison, submitted a letter in lieu of brief on behalf of respondents Harry C. Egner and Holly Egner (Methfessel & Werbel, attorneys). PER CURIAM. The members of the Supreme Court being equally divided, the judgment of the Appellate Division is affirmed. JUSTICE LaVECCHIA, concurring. In Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 448, 625 A.2d 1110 (1993), we recognized the existence of a duty of care between a real estate agent conducting an open house to attract potential homebuyers and a member of the public who attended that open house. Recognition of that duty of care was intended to ensure the safety of the visitors to the open house tour, limited to alerting open-house attendees "only to defects that are reasonably discoverable through an ordinary inspection of the home undertaken for purposes of its potential sale." Ibid. In the instant matter, the Appellate Division determined that the Hopkins duty of care did not extend to the short-term lease of a summer rental facilitated through the services of a real estate agent. Reyes v. Egner, 404 N.J.Super. 433, 466-67, 962 A.2d 542 (App.Div.2009). We issued a limited grant of certification to review that determination, 199 N.J. 130, 970 A.2d 1047 (2009), and now an evenly divided Court affirms the judgment of the Appellate Division that granted summary judgment to the agent. I, and the justices joining this concurrence, would affirm the judgment of the Appellate Division, substantially for the reasons expressed in the thoughtful opinion by Judge Sabatino, and briefly add the following to amplify why we decline to embrace, on these facts, the extension of the Hopkins duty of care that our dissenting colleagues would apply. I. Initially, we note, as did the Appellate Division, that plaintiffs[1] must obtain an extension of the duty of care that was announced in Hopkins in order to succeed in their action against the real estate agent in this matter. As Hopkins arose in the specific context of an open house conducted in connection with the sale of real property, to recognize a similar duty where a short-term tenant already has taken occupancy of a rental property plainly requires an extension of Hopkins. Our disinclination to adopt such an extension in this case arises not from a conviction that Hopkins must be limited strictly to the factual context of an open house to sell real property, *218 as we need make no such limiting determination in order to resolve this case. Rather, our affirmance of the grant of summary judgment to the real estate agent hinges on the specific facts presented in this matter, the most central of which is that the Reyes family resided in the summer home for nine days before the unfortunate injury to their family member occurred. Our decision to extend a duty of care in Hopkins was based on the application of a fairness inquiry that weighed and balanced four factors: (1) the nature of the parties' relationship; (2) the nature and foreseeability of the risk; (3) the existence of an opportunity to inspect and to warn; and (4) the public policy underlying the imposition of the duty. Hopkins, supra, 132 N.J. at 439-45, 625 A.2d 1110 (citing Goldberg v. Hous. Auth. of the City of Newark, 38 N.J. 578, 583, 186 A.2d 291 (1962)); see Rogers v. Bree, 329 N.J.Super. 197, 201, 747 A.2d 299 (App.Div.2000) (synthesizing four factors analyzed in Hopkins). It is unnecessary to engage in a full analysis of each of those considerations, for there is a plain and decisive difference between the facts in Hopkins and those in the present case relating to the third factor: the opportunity to inspect. The visual inspection by a realtor discussed in Hopkins, which is done for the purpose of ensuring the safety of visitors attending a realtor's open house tour of real property listed for sale, stands in marked contrast to the intimate knowledge of a property that an occupant acquires from actually residing in it. Our holding in Hopkins did not suggest an intent to require that a realtor provide an ongoing guarantee of a property's safety, nor was it designed to protect occupants of a property from personal responsibility for awareness of their surroundings and the dangers inherent in those surroundings. Rather, Hopkins established the proposition that realtors owe a duty of care to protect invited visitors to a marketed piece of property from physical conditions that the nature and duration of their visit might not afford them an opportunity to recognize for themselves.[2]See Hopkins, supra, 132 N.J. at 444-45, 625 A.2d 1110. As noted, the Reyes family lived in the shore rental home for more than a week before the injury-causing accident occurred. A nine-day actual occupancy offered ample opportunity to the occupants to inspect and discern physical defects in the property. The facts of this case simply do not compel an extension of the Hopkins duty of care to plaintiffs' cause of action. Finally, we take issue with the suggestion of our dissenting colleagues that an extension of the Hopkins duty to inspect under the circumstances presented would not impair the short-term rental market in New Jersey. See post at 432-33, 991 A.2d at 224-25. To the contrary, we cannot help but conclude that so broad an extension of Hopkins, with the expected increase in insurance premiums for real estate agencies that would follow, would *219 impact the cost of short-term rentals. We cannot imagine that those increases would be borne by anyone other than the renters—the families, friends and individuals —who vacation in New Jersey each year. On the facts presented, we find no compelling reason to subject the rental industry to the chilling effect of such an extension of the Hopkins duty of care. II. In sum, we would affirm the grant of summary judgment to the real estate agent, substantially for the reasons stated by the Appellate Division and as augmented in this opinion. Chief Justice RABNER and Justice RIVERA-SOTO join in this opinion. Justice ALBIN, dissenting. On a late summer's day, seventy-two year old Hermes Reyes opened the sliding glass door separating the master bedroom from the outside deck of the summer house his daughter had rented. Immediately outside the bedroom's sliding glass door was a seven-inch drop to an intermediate step followed by a six-and-one-half inch drop to the deck. There was no warning of a drop from the bedroom to the deck; the color and grain of the wood of the deck and step suggested one continuous surface. Unaware of the drop, Reyes lost his balance as he stepped outside, tumbling toward the deck's stairs, which had no handrail. He fell down the deck's five steps and onto the ground, suffering severe and permanent injuries. In Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 625 A.2d 1110 (1993), this Court determined that a real estate broker who held an open house for potential buyers had a duty to warn of any reasonably discoverable dangerous conditions in the home. In Hopkins, similar to the facts here, the allegedly dangerous condition that caused injury to the visitor was an inconspicuous step down separating two rooms in a house. In this case, however, because of a three-Justice to three-Justice stalemate, the judgment of the Appellate Division is affirmed, placing no duty on a real estate broker to warn of reasonably discoverable dangerous conditions in a short-term rental. The discordant results in these two cases are difficult to reconcile. The real estate broker, when holding an open house, has a duty to warn of dangerous conditions, even if receiving no financial benefit from the visitor, but has no corresponding duty to a short-term renter from whom a financial profit is made. Our tort jurisprudence now demands that a broker at an open house say, "buyer, watch your step," but allows a broker with full knowledge of a dangerous condition to remain mute to a short-term lessee, and by his silence say, "renter be damned." This cannot be the result the Court had in mind in Hopkins. The failure to place on brokers a reasonable duty of care in the present case is a sharp departure from our evolving common law standards. Tort law does more than allocate costs among responsible tortfeasors; it also is aimed at reducing the number of preventable accidents. Simple economics, moreover, suggests that when imposing a duty of care results in fewer accidents, there will be fewer insurance payouts, which ultimately should lead to an overall reduction in insurance premiums. In short, imposing a duty of care should have no adverse financial impact on the short-term rental market. The Appellate Division deferred to this Court to determine whether to impose a duty on brokers to warn the unwary of dangerous conditions in short-term rentals, as we did in Hopkins for open houses. *220 Sadly, my concurring colleagues today take a pass on the Appellate Division's invitation to refine our developing common law. Because of this lost opportunity, brokers will have no legal incentive to protect short-term renters from the type of avoidable tragedy that occurred in this case. I. Plaintiff Hermes Reyes filed a civil action in the Middlesex County Superior Court in 2005, alleging that he suffered serious personal injuries as a result of a dangerous condition on rental property owned by defendants Harry and Holly Egner. The property was leased by defendant Prudential Fox & Roach Realtors, the broker, to Reyes's daughter, Columbia.[1] Reyes claims that the Egners and Prudential had a duty to give fair warning of the reasonably discoverable dangerous condition that caused his injuries.[2] Because the trial court entered judgment against Reyes, dismissing his complaint against Prudential on the basis that the broker had no duty to warn of a purportedly dangerous condition on the rental property, at this stage we must view the evidence in the light most favorable to Reyes.[3] A. The summer rental home in Stone Harbor, New Jersey, where Reyes suffered his injuries, was sold to the Egners on February 14, 2003. Prudential was the listing agent on the property. On the purchase date, a Prudential agent conducted a walk-through with the Egners, and the Egners authorized Prudential, in a written contract, to act as their "agent to complete rental agreements and execute leases on [their] behalf." Under the contract, Prudential also was given authority "to make necessary emergency repairs to [the] property and/or appliances." Before listing the property, another Prudential agent visited the house to verify information about its amenities. In exchange for Prudential's services, which included listing and advertising the property, the Egners agreed to pay a twelve-percent commission on any signed lease. Prudential advertised available summer properties to potential renters on its website, on local radio, and in the Philadelphia Inquirer. Prudential mailed a brochure listing available summer rentals to Columbia Reyes. In the spring of 2003, she called Prudential and had numerous conversations with one of its agents about renting a summer home. Ultimately, she decided to rent the Egners' house for two weeks, beginning August 23, 2003. Acting as the Egners' agent, Prudential sent Columbia a lease agreement, which she signed and returned with a down payment. Under the terms of the contract, *221 Columbia agreed to pay $4,050, which included a $500 returnable security deposit, for the two-week rental. Columbia did not visit the Stone Harbor property until the start of the rental period. The rental property featured four bedrooms, including a master bedroom with a sliding glass door that led to a small wood deck overlooking the backyard. To get to the deck through the master bedroom's sliding glass door, one would have to step down seven inches onto a wooden "intermediate platform," and then step down another six-and-one-half inches onto the deck itself. The deck was connected to the backyard by five steps. There was no sign or visual cue cautioning a guest walking through the sliding glass door that the deck was not on the same level as the bedroom. As the trial court noted, "if you look at the picture out the bedroom door, it appears that you're walking onto a single space.... It could be an optical illusion." In short, a guest would have no warning of the drop once he stepped through the bedroom's sliding glass door onto the deck. Reyes arrived with Columbia and other family members at the start of the lease period. Reyes and his wife stayed in the master bedroom. On the ninth day of their vacation, Reyes opened the bedroom's sliding glass door for the first time, expecting to step onto a level deck. Unaware of the drop, Reyes lost his balance and stumbled headlong towards the deck's stairs, which had no handrail. He then fell down the flight of stairs leading to the backyard. Reyes was transported to a hospital where he remained for the next five days. After his discharge, he spent five-and-one-half weeks receiving treatment at a rehabilitation facility. He claimed that he suffered severe and permanent injuries to his back. B. The trial court granted judgment in favor of Prudential, finding that Prudential had no duty to inspect the home it rented to the Reyes family and no duty to warn the family of reasonably discoverable dangerous conditions on the property. The court distinguished this case from Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 625 A.2d 1110 (1993), on the basis that an open house—the Hopkins scenario—is of more limited duration than a two-week rental period. The court also determined that imposing a duty of care on Prudential would be unjust because of the seemingly nominal services it provided and fee it received. The Appellate Division affirmed the trial court's dismissal of Reyes's claim against Prudential.[4]Reyes v. Egner, 404 N.J.Super. 433, 467, 962 A.2d 542 (App.Div.2009). The appellate panel construed Hopkins as imposing a broker's duty to warn of reasonably discoverable dangerous conditions only to potential home buyers visiting during an open house. Id. at 464, 962 A.2d 542. In declining to impose a duty on Prudential, the panel nevertheless noted that Reyes had "raised several policy arguments for why a broker should be liable in tort for failing to perform an adequate inspection of rental property." Id. at 466-67, 962 A.2d 542 (footnote omitted). The panel "reserve[d]" to this Court whether the duty imposed on brokers in Hopkins should be extended for the protection of those enjoying short-term rentals. Id. at 467, 962 A.2d 542. *222 We granted Reyes's petition for certification. 199 N.J. 130, 970 A.2d 1047 (2009). I believe that the facts here provide as compelling a case as Hopkins for imposing on brokers a duty to warn short-term renters of reasonably discoverable dangerous conditions. II. A. In Hopkins, supra, the plaintiff accompanied her son and daughter-in-law to an open house hosted by the broker, defendant Fox & Lazo Realtors. 132 N.J. at 432, 625 A.2d 1110. The broker's representative permitted the three to tour the premises on their own. Ibid. At some point, plaintiff walked down a hallway unaware that it led to a step-down foyer. Ibid. The hallway and the foyer were covered with the same vinyl pattern, effectively camouflaging the approaching step. Ibid. Plaintiff lost her footing as she stepped into the foyer, fracturing her ankle. Ibid. In Hopkins, we concluded that a broker owed a duty to warn a potential purchaser and his guests, invited to an open house, "of any dangerous conditions that the broker might reasonably discover while examining a residence in preparation for an open house." Id. at 445, 625 A.2d 1110. "The broker is not responsible for latent defects that are hidden and of which the broker has no actual knowledge." Id. at 448-49, 625 A.2d 1110. We suggested that, before conducting an open house, the broker's inspection should consist of an examination of the premises to ascertain the obvious physical characteristics that are material to its saleability, as well as those features that a prospective purchaser would routinely examine during a "walk through" of the premises. Included are such features relating to the safety, not only of the customer as a potential buyer and ultimate owner or occupier of the home, but also of visitors who are present on the property on the invitation of the broker. That inspection would impose on the broker the duty to warn of any such discoverable physical features or conditions of the property that pose a hazard or danger to such visitors. [Id. at 444-45, 625 A.2d 1110.] We did not "view the imposition of a duty to undertake a reasonable broker's inspection ... and to give adequate warnings with respect to hazards readily discoverable through such an inspection, to be an unreasonable economic strain on a broker's livelihood." Id. at 446, 625 A.2d 1110. We believed that it was "reasonable and fair" for the broker to bear at least some of the costs related to the injury suffered by the plaintiff given the economic benefits the broker received from conducting an open house. Ibid. We noted that the broker would "retain a right of either contribution or indemnification from the homeowner," emphasizing that the homeowner "remains primarily liable for the safety of all invitees on the property, including open-house visitors." Id. at 447, 625 A.2d 1110. Therefore, the broker would not be "solely responsible for the increased costs" related to the imposition of a duty to warn unsuspecting visitors at an open house of reasonably discoverable dangers. Id. at 446-47, 625 A.2d 1110. B. The logic and commonsense of Hopkins lead to imposing a duty on brokers to warn of reasonably discoverable dangerous conditions in the homes they are leasing to short-term renters. In deciding whether to impose a duty of care, our Court has looked to four factors: (1) "the relationship of the parties"; (2) "the nature of the *223 attendant risk"; (3) "the opportunity and ability to exercise care"; and (4) "the public interest in the proposed solution." Id. at 439, 625 A.2d 1110; see also Acuna v. Turkish, 192 N.J. 399, 414, 930 A.2d 416 (2007); Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 573, 675 A.2d 209 (1996). First, in this case, as the homeowners' agent, Prudential had a "cognizable relationship" with the Reyes family to whom it leased the Stone Harbor property. See Hopkins, supra, 132 N.J. at 440, 625 A.2d 1110. Prudential advertised the property, forwarded a brochure to Columbia, and engaged in numerous conversations with her with the intent of renting property to her and her family. Prudential succeeded in leasing the Stone Harbor house to the Reyes family for two weeks in the summer and mailed to Columbia the contract governing the rental. In this case, Prudential received a direct economic benefit from the Reyes family, a twelve-percent commission on the lease, as well as a commission on every other lease to every other family renting the Stone Harbor house. In contrast, the broker in Hopkins received no tangible benefit from the injured plaintiff (or her son and daughter-in-law) who was merely visiting the realtor's open house. Here, Prudential was operating in a much larger market and, evidently, leasing many other short-term rentals. Accordingly, the financial benefits from summer rentals to Prudential, and other similarly-situated brokers, are hardly nominal. Second, "the nature of the attendant risk" was significant. A camouflaged step connecting the master bedroom to the outside deck of the Stone Harbor property led to a foreseeable injury—in this case, a seventy-two-year-old man losing his balance and then tumbling down a flight of stairs that had no handrail. In short, the risk here was that a house guest would suffer grievous and severe injuries from a dangerous condition of the property. Third, Prudential had "the opportunity and ability to exercise care." A Prudential agent did a walk-through of the Stone Harbor property at the time the Egners purchased the house. Additionally, after the Egners authorized Prudential "to complete rental agreements and execute leases on [their] behalf," Prudential followed its practice of having an agent visit the house to detail the amenities available to a renter. Surveying the amenities must mean more than counting tea cups in a cupboard; it must require some form of visual inspection of the premises. Prudential agents had the opportunity to notice a non-latent, reasonably discoverable dangerous condition on the Stone Harbor property. The New Jersey Administrative Code also mandates that licensed New Jersey real estate agents "make [a] reasonable effort to ascertain all material information concerning the physical condition of every property for which he or she accepts an agency." N.J.A.C. 11:5-6.4(b). The "reasonable effort" contemplated by the regulation includes a "visual inspection of the property to determine if there are any readily observable physical conditions affecting the property." N.J.A.C. 11:5-6.4(b)(1)(ii). Clearly, post-Hopkins, brokers were on notice that a camouflaged or concealed step down separating one room from another was a potentially dangerous condition. A duty to warn is an appropriate burden to impose on Prudential because, in its role as broker, Prudential— not the homeowners—was communicating with the Reyes family. Finally, although the parties may disagree about the kind of inspection N.J.A.C. 11:5-6.4(b) demands, that issue might be informed by expert testimony on what is reasonable and customary in the broker/realty industry. *224 See Hopkins, supra, 132 N.J. at 444, 625 A.2d 1110. The last factor is "the public interest in the proposed solution." The purpose of our tort system is not "simply to provide legal redress to an injured party," but to give incentives to discourage negligent conduct. Hopkins, supra, 132 N.J. at 448, 625 A.2d 1110. Thus, one of the central objectives of tort law is to prevent accidents. Imposing a duty to warn of a reasonably discoverable dangerous condition—the type of condition that would be apparent to a broker after conducting an inspection under N.J.A.C. 11:5-6.4(b)(1)(ii) —would give brokers an "incentive[ ] to minimize risks of harm" to unsuspecting short-term renters. Ibid. The public has a strong interest in reducing the number of accidents that occur by ensuring that those who know or should know of a dangerous condition give notice to the unwary. When the cost of preventing an accident by conducting a reasonable inspection is less than the cost of paying for one, economics will impel brokers to give the necessary warnings. See id. at 447, 625 A.2d 1110; cf. George Lefcoe, Property Condition Disclosure Forms: How the Real Estate Industry Eased the Transition from Caveat Emptor to Seller Tell All, 39 Real Prop. Prob. & Tr. J. 193, 213-16 (2004) (discussing how brokers, as result of expanded tort liability, became driving force behind promoting seller disclosures of property defects, which reduce post-sale suits against brokers). This Court has "recognized the salutary effect of shifting the risk of loss" to those who are in a position to prevent harm arising from a dangerous condition. Hopkins, supra, 132 N.J. at 447, 625 A.2d 1110. Imposing a duty on brokers to warn of reasonably discoverable dangerous conditions in no way weakens the primary duty that homeowners, who lease their properties, must bear for not warning of or repairing dangerous conditions that threaten short-term renters. See Reyes, supra, 404 N.J.Super. at 452, 460-61, 962 A.2d 542. Because homeowners are not excused from liability for reasonably discoverable dangerous conditions that may cause injury to an invitee, principles of comparative negligence would apply, and realtors would have a right to contribution or indemnification. See N.J.S.A. 2A:15-5.3(e); N.J.S.A. 2A:53A-1 to -3; Hopkins, supra, 132 N.J. at 447, 625 A.2d 1110. Moreover, principles of comparative negligence also would limit, and sometimes bar, a recovery against a realtor when a plaintiff fails to exercise reasonable care after becoming aware of a dangerous condition. See N.J.S.A. 2A:15-5.1 to 5.3; see also Berger v. Shapiro, 30 N.J. 89, 99, 152 A.2d 20 (1959) ("If the guest is aware of the dangerous condition or by a reasonable use of his faculties would observe it, the host is not liable."). Imposing a duty on brokers would not increase the number of lawsuits; indeed, the opposite would occur. Some short-term renters will sue homeowners for injuries caused by dangerous conditions of which those renters were not made aware. That is true today, and it will be true tomorrow. The threat of bringing brokers into those cases would only reduce the number of lawsuits. That is so because, in a certain percentage of cases, brokers would make short-term renters aware of reasonably discoverable dangerous conditions, and therefore the accidents would never happen. Finally, it is unlikely that imposing a duty to inspect and warn would impair the short-term rental market. See Hopkins, supra, 132 N.J. at 446, 625 A.2d 1110 ("Given the economic benefits that inure to the broker ..., to ask the broker to internalize the costs associated with conducting *225 its business is reasonable and fair."). Presumably, realtors already purchase insurance as part of the cost of doing business, and any additional cost would be spread among homeowners who would benefit financially from fewer lawsuits, if the imposition of the duty logically leads to fewer accidents. Indeed, if there were fewer accidents, and fewer lawsuits, one would expect an overall decrease in insurance premiums. See, e.g., David A. Hyman & Charles Silver, The Poor State of Health Care Quality in the U.S.: Is Malpractice Liability Part of the Problem or Part of the Solution?, 90 Cornell L.Rev. 893, 917-920 (2005) (detailing how tort liability and high insurance premiums led anesthesiologists to enact reforms, and "[a]s anesthesia became safer, lawsuits against anesthesiologists became less frequent and liability premiums for anesthesiologists declined significantly"). Any increase in premiums for brokers should be offset by a decrease in premiums for homeowners, resulting in a wash for the short-term rental market. III. Before imposing a duty of care on a party, a court must consider notions of fairness and public policy. Acuna, supra, 192 N.J. at 414, 930 A.2d 416. Here, fairness and public policy dictate that brokers, such as Prudential, bear a duty to inspect and warn residents of short-term rental properties about reasonably discoverable dangerous conditions. Undoubtedly, those unfamiliar with the property will be relying on the skill and knowledge of the realtor who is renting the premises. That plaintiff in this case is the father of the person who signed the rental contract does not relieve the broker of a duty to warn because it is foreseeable that family members and even friends will reside in a short-term rental. A dangerous condition of the property will be no less dangerous to the people whose names are not on the contract. See generally Carvalho, supra, 143 N.J. at 572-73, 675 A.2d 209; cf. Monaco v. Hartz Mt. Corp., 178 N.J. 401, 418-19, 840 A.2d 822 (2004) (finding commercial landlord owed duty to employee of tenant as invitee, and that, under Hopkins's analysis, "[t]he fairness and justice of recognizing a duty in such circumstances are clear beyond cavil"). As our common law of torts has evolved, we have recognized that fairness and public policy require the imposition of duties of care that earlier did not exist. See Hopkins, supra, 132 N.J. at 435, 625 A.2d 1110 ("Because public policy and social values evolve over time, so does the common law."); see also Kelly v. Gwinnell, 96 N.J. 538, 556, 476 A.2d 1219 (1984) (imposing duty on social hosts not to serve alcohol to visibly intoxicated guests); Trentacost v. Brussel, 82 N.J. 214, 231, 412 A.2d 436 (1980) (imposing duty on landlord "to take reasonable security measures for tenant protection on the premises"); Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 384, 161 A.2d 69 (1960) (abolishing privity requirement in product-liability suits against manufacturers). In his concurring opinion in Hopkins, supra, Justice Clifford found that imposing a duty on brokers to warn clients in an open house of a dangerous condition would be "`no big deal,' ... just nudg[ing] the law forward an inch or so." 132 N.J. at 451, 625 A.2d 1110. Likewise, imposing a duty on brokers in the circumstances of this case would be another incremental advance in the law. Importantly, the New Jersey Association of Realtors, which appeared as amicus curiae on behalf of Prudential, admitted during oral argument before this Court that if a door to the second floor of a house opened into thin air, the broker would have a duty to warn of the danger before *226 the tenant blithely walked through that door to his doom. The Association, which opposes any extension of Hopkins, seemingly concedes that an unsuspecting renter must be warned of some dangerous conditions. However, if a broker has a duty to warn, the question of whether a condition on the premises is dangerous (or dangerous enough) and whether it is reasonably discoverable by a broker would be a matter for a jury.[5] My three concurring colleagues who are affirming the Appellate Division's judgment suggest that had Reyes taken his fall on day one of the rental, the broker might have had a duty to warn. My concurring colleagues state that "[a] nine-day actual occupancy offered ample opportunity to the occupants to inspect and discern physical defects in the property." Ante at 421-22, 991 A.2d at 218. Here, Reyes discovered the defect when, for the first time, he stepped onto the deck and fell down a flight of stairs. Whether Reyes had "ample opportunity" to discover the defect, or should have known of the defect, has nothing to do with Prudential's duty to warn. Rather, whether Reyes should have discovered the danger implicates the doctrine of comparative negligence, not duty, and therefore would be a question for a jury to determine. If Prudential had a duty to warn, and indeed warned, of reasonably discoverable dangers on day one, presumably there would not have been an accident on day nine. The duty to warn stands apart from whether Reyes stepped onto the defective deck on the first day rather than the ninth day of his vacation. IV. New Jersey's citizens would benefit if brokers warn short-term renters of reasonably discoverable dangerous conditions on the premises. Reducing preventable accidents is in the public interest. Brokers have specialized knowledge and experience in the field of realty and already are required to inspect rental properties. It is not unreasonable to impose on brokers a duty to warn the unwary from whom they are profiting. If they violate that duty, they should be prepared to bear the cost of their negligence. Because the Court is evenly split on whether brokers owe a duty to short-term renters, the ultimate resolution of this issue must await another day. I would impose a duty on brokers, such as Prudential, to inspect and warn short-term renters of reasonably discoverable dangers on the premises. I therefore respectfully dissent. Justices LONG and WALLACE join in this opinion. For affirmance—Chief Justice RABNER and Justices LaVECCHIA and RIVERA-SOTO—3. For reversal—Justices LONG, ALBIN and WALLACE—3. NOTES [1] In this opinion, we use "plaintiffs" to refer collectively to Hermes Reyes, who died during the pendency of these proceedings, and his wife, Leonor Reyes, who has asserted a per quod claim based on his injuries, with reference to their cause of action against Prudential Fox & Roach Realtors. Notwithstanding the Appellate Division's affirmance of the award of summary judgment in favor of Prudential, the panel's decision expressly permitted the plaintiffs' cause of action against the homeowners, Harry C. Egner and Holly Egner, to proceed. Reyes v. Egner, 404 N.J.Super. 433, 462, 962 A.2d 542 (App.Div.2009). This opinion addresses only plaintiffs' cause of action against Prudential and is not intended to address or limit any other viable cause of action that may exist as between any party involved in this case. [2] We note that the licensing body for real estate agents, the New Jersey Real Estate Commission, has promulgated regulatory requirements recognizing a realtor's obligation to engage in a "reasonable effort to ascertain all material information concerning the physical condition of every property for which he or she accepts an agency or which he or she is retained to market...." N.J.A.C. 11:5-6.4(b). That "reasonable effort" must include, at least, "[a] visual inspection of the property to determine if there are any readily observable physical conditions affecting the property." N.J.A.C. 11:5-6.4(b)(1)(ii). Although we are uncertain of the extent of the duty that the Commission means to impose by that regulation, we are satisfied that that regulatory duty does not extend to the imposition of liability in the scenario presented in this matter, where a tenant has, for nine consecutive days, been in possession of and in residence at the rental property. [1] The Egners filed a third-party complaint against Columbia, who in turn filed a fourth-party complaint against Prudential. The complaint against Columbia was later dismissed. [2] Reyes's wife, Leonor, filed a consortium claim against defendants in the same action. Reyes died on March 23, 2009. [3] The trial court clearly applied the wrong standard in granting summary judgment in favor of Prudential. Reyes moved for summary judgment on the basis that Prudential owed him a duty of care. It would have been entirely proper for the trial court to deny Reyes's motion, viewing the facts in the light most favorable to Prudential. Instead the court dismissed Reyes's claims. In effect, the court granted summary judgment for Prudential, which was not the moving party, while viewing the facts in the light most favorable to Prudential. See R. 4:46-2(c) ("The judgment... shall be rendered forthwith if ... the moving party is entitled to a judgment or order as a matter of law." (emphasis added)); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146 (1995). [4] The trial court had entered summary judgment in favor of the Egners. The Appellate Division, however, reversed and remanded for trial on the issue of the Egners' liability as homeowners. The discussion in this opinion is limited to Reyes's case against Prudential. [5] It is worth noting that Prudential's own expert report (submitted during the appeal) indicates that licensed realtors have a duty to disclose known defects and "apparent defect[s] (such as a bare wire hanging from a ceiling) in a summer rental unit."

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/559601/

931 F.2d 24 Steven WEDEMEIER, Appellee,v.CITY OF BALLWIN, MISSOURI, a Municipal Corporation, WilliamSpencer, David Wangrow, Appellants.James OLIN, Appellee,v.CITY OF BALLWIN, MISSOURI, a Municipal Corporation, WilliamSpencer, David Wangrow, Appellants.Kyle MUELLER, Appellee,v.CITY OF BALLWIN, MISSOURI, a Municipal Corporation, WilliamSpencer, David Wangrow, Appellants.Jeffrey CHILTON, Appellee,v.CITY OF BALLWIN, MISSOURI, a Municipal Corporation, WilliamSpencer, David Wangrow, Appellants.Jeffrey CHILTON, Appellant,v.CITY OF BALLWIN, MISSOURI, a Municipal Corporation, WilliamSpencer, David Wangrow, Appellees.Kyle MUELLER, Appellant,v.CITY OF BALLWIN, MISSOURI, a Municipal Corporation, WilliamSpencer, David Wangrow, Appellees.James OLIN, Appellant,v.CITY OF BALLWIN, MISSOURI, a Municipal Corporation, WilliamSpencer, David Wangrow, Appellees.Steve WEDEMEIER, Appellant,v.CITY OF BALLWIN, MISSOURI, a Municipal Corporation, WilliamSpencer, David Wangrow, Appellees. Nos. 89-3068 to 89-3071, 90-1452. United States Court of Appeals,Eighth Circuit. Submitted Oct. 9, 1990.Decided April 23, 1991. John F. Cowling, St. Louis, Mo., for appellant. Alen E. DeWoskin, St. Louis, Mo., for appellees. Before ARNOLD and FAGG, Circuit Judges, and WATERS,* District Judge. FAGG, Circuit Judge. 1 Steven Wedemeier, James Olin, Kyle Mueller, and Jeffrey Chilton (the young men) brought this civil rights action under 42 U.S.C. Sec. 1983 against the City of Ballwin, Missouri, and three Ballwin police officers after the officers mistook the young men for burglary suspects and arrested them. The jury found two of the officers violated the young men's constitutional rights in arresting them without probable cause and using excessive force during the arrest. The jury found the city liable for the officers' unconstitutional acts on the ground the city had a policy or custom causing its police officers to arrest suspected criminals without probable cause and to use excessive force when apprehending them. The district court did not submit the case to the jury on a failure-to-train theory. After trial, the district court awarded the young men their attorney's fees under 42 U.S.C. Sec. 1988, and costs, including expert witness fees, under 28 U.S.C. Secs. 1821(b), 1920(3). The city appeals the district court's denial of its motion for judgment notwithstanding the verdict (JNOV) on the issue of municipal liability, and the young men appeal the amount of attorney's fees and costs awarded. The officers do not appeal. We reverse in part, affirm in part, and remand to the district court for further proceedings. 2 First, we address the city's appeal. The city contends the district court should have granted its motion for JNOV because the young men presented no evidence the city had a policy or custom that caused its police officers to arrest the young men without probable cause or to use excessive force in their apprehension. We agree. 3 It is well established that a municipality cannot be held vicariously liable under 42 U.S.C. Sec. 1983 for its employees' unconstitutional acts. Monell v. Department of Social Servs., 436 U.S. 658, 691, 694, 98 S. Ct. 2018, 2037, 56 L. Ed. 2d 611 (1978). When a municipal policy or custom is the moving force behind a constitutional violation, however, municipal liability attaches. Id. at 694, 98 S.Ct. at 2037. Generally, an isolated incident of police misconduct by subordinate officers is insufficient to establish municipal policy or custom. See City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24, 105 S. Ct. 2427, 2436, 85 L. Ed. 2d 791 (1985) (plurality); Patzner v. Burkett, 779 F.2d 1363, 1367 (8th Cir.1985); Powell v. Gardner, 891 F.2d 1039, 1045 (2d Cir.1989). By the same token, a single deviation from a written, official policy does not prove a conflicting custom or usage. Williams-El v. Johnson, 872 F.2d 224, 230 (8th Cir.), cert. denied, --- U.S. ----, 110 S. Ct. 85, 107 L. Ed. 2d 51; --- U.S. ----, 110 S. Ct. 199, 107 L. Ed. 2d 153 (1989). 4 Viewing the record in the light most favorable to the young men, there is no evidence of municipal policy or custom independent of the officers' misconduct. The only official policy the young men identified is a police policy forbidding the use of excessive force when arresting suspects. The young men do not assert this policy is constitutionally deficient. In addition, they presented no evidence of other incidents in which city police officers arrested suspects without probable cause or used excessive force. In short, the young men proved nothing more than an isolated episode of police misconduct by two subordinate officers. 5 We cannot infer the existence of an unconstitutional city policy, or custom conflicting with the official policy, from this single occurrence. Tuttle, 471 U.S. at 821, 105 S.Ct. at 2435 (plurality), 830-31, 105 S. Ct. at 2440 (Brennan, J., concurring); Williams-El, 872 F.2d at 230. Indeed, the city's official policy was not ignored--the police chief found the officers violated the policy and disciplined them. Because no evidence supported the submission of the municipal liability issue to the jury on the theory the officers were carrying out a city policy or custom, we conclude the district court committed error in refusing to grant the city's motion for JNOV. 6 We now turn to the young men's appeal. The young men contend the district court abused its discretion in determining the amount of their attorney's fees. After calculating the lodestar using figures provided by the young men's attorney, the district court adjusted the fee downward, including an adjustment reflecting the limited degree of success achieved. See generally Hensley v. Eckerhart, 461 U.S. 424, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983). We conclude the district court did not abuse its discretion in exercising its equitable judgment to adjust the fee. Having reversed the judgment against the city, however, we must remand to the district court for reconsideration of the fee award in light of the young men's further limited success. In so doing, we also reject the young men's contention the district court abused its discretion in denying enhancement of the fee based on the risk involved and the results obtained. See generally Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 483 U.S. 711, 107 S. Ct. 3078, 97 L. Ed. 2d 585 (1987) (plurality); Blum v. Stenson, 465 U.S. 886, 104 S. Ct. 1541, 79 L. Ed. 2d 891 (1984). 7 The young men next contend the district court abused its discretion in disallowing expert witness fees in excess of $30 per day. See 28 U.S.C. Secs. 1821(b), 1920(3) (1988); Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445, 107 S. Ct. 2494, 2499, 96 L. Ed. 2d 385 (1987). They assert the entire expense for services their experts rendered may be shifted to the city as a part of "a reasonable attorney's fee" under 42 U.S.C. Sec. 1988. See Crawford, 482 U.S. at 445, 107 S.Ct. at 2499 (Blackmun, J., concurring); id. at 446 n. 1, 107 S. Ct. at 2500 n. 1 (Marshall, J., dissenting). The Supreme Court's contrary holding in West Virginia University Hospitals, Inc. v. Casey, --- U.S. ----, 111 S. Ct. 1138, 1148, 113 L. Ed. 2d 68 (1991), forecloses this argument. The young men also argue the district court improperly disallowed other costs not included in the bill of costs. We conclude, however, the district court did not abuse its discretion in assessing costs. 8 In summary, we: (1) reverse the district court's ruling denying the city's motion for JNOV and remand with directions to enter judgment in the city's favor; (2) remand the young men's motion for attorney's fees to the district court for reconsideration; and (3) affirm the district court's award of costs, including expert witness fees. * The HONORABLE H. FRANKLIN WATERS, Chief Judge of the United States District Court for the Western District of Arkansas, sitting by designation

01-03-2023

08-23-2011

https://www.courtlistener.com/api/rest/v3/opinions/1890817/

369 Mich. 439 (1963) 120 N.W.2d 225 MACK v. PRECAST INDUSTRIES, INC. Calendar No. 104, Docket No. 49,480. Supreme Court of Michigan. Decided March 7, 1963. Rehearing denied May 9, 1963. *441 Doyle, James & Dark, for plaintiff. Paulson, Bennett & Palmer, for defendant H.H. Shinville, Inc. DETHMERS, J. (dissenting). This is a suit under the survival act and the wrongful death act, for injury and death of plaintiff's decedent. From verdict and judgment of no cause for action for defendant Shinville, plaintiff appeals. No appeal is taken from dismissal as to the other 2 defendants. Defendant's negligence and contributory negligence of plaintiff's decedent were placed in issue by the pleadings. Plaintiff says "the charge of the court is the sole matter on review." The first claim of error relates to the statement in the court's charge that for the plaintiff to recover the jury must find that the decedent "was free of any negligence, however slight, which contributed to his injury." Plaintiff says it was error to so instruct the jury "without further instructing the jury that the negligence, however slight, must be a proximate or direct cause of the injuries and death." There is no difference in meaning to say, as the court did, that the negligence, however slight, of decedent which would bar plaintiff's right to recover must be that "which contributed to his injury" or to say, as plaintiff urges that the court should have said, that it must be that which is "a proximate or direct cause of the injuries and death." They are one and the same thing. The court elsewhere properly defined contributory negligence and proximate cause. If negligence contributes to, it is a proximate cause of the injury. Plaintiff also says that the court erred *442 in causing the words "however slight" to modify the word "contributed" rather than the words "proximate" or "direct" cause. The court did neither. A reading of the portion of the charge above quoted makes it manifest that the court properly caused the words "however slight" to modify the word "negligence". This is as it should be, according to the case relied upon by plaintiff in this connection, Huey v. Milligan, 242 Ind 93 (175 NE2d 698). That court (p 106) emphasized the difference between saying "slight negligence which is proximate cause" and "negligence which is a slight cause." To bar recovery, decedent's negligence, however slight, must have been a proximate, direct, contributory cause. Plaintiff cites Schattilly v. Yonker, 347 Mich. 660, to the effect that attempts to discuss, in the charge to the jury, the difference between "mere" negligence and "actionable" negligence are more likely to confuse than clarify and that no such distinction exists in Michigan law. From that, it does not follow that a plaintiff's negligence, however slight, which contributed to his injury would not bar his right to recover. An instruction that it would bar it is a correct statement of the law. From the statement in Schattilly that no distinction exists in Michigan law between mere negligence and actionable negligence, the necessary implication is that mere negligence is actionable. By the same token, mere negligence or negligence however slight, on a plaintiff's part, which is a proximate cause of or contributes to his injury, is a bar to his right to recover. In Vinton v. Township of Plainfield, 208 Mich. 179, 183, the court's instruction included the following: "The plaintiff can recover providing he himself or his son were not guilty of any negligence which contributed in any degree to the injury." While that language was not specifically challenged, *443 this Court said of the instructions containing that statement that they were proper. In Zylstra v. Graham, 244 Mich. 319, 328, there was included in the instructions the statement that if plaintiff's decedent was guilty of contributory negligence "no matter how slight" the verdict must be for defendant. Again, while that statement was not directly challenged, the instructions were approved as sufficiently informing the jury as to the duties and responsibilities of both parties. In Haara v. Vreeland, 254 Mich. 462, 466, the court instructed the jury that for plaintiff to recover it must find that plaintiff "was free from any negligence which contributed to the injury and when I say any negligence, I mean even the slightest." Plaintiff specifically challenged the use of the word "slightest" in this connection. It was held to be not prejudicial to plaintiff's case. Reference has been made to the statement in this Court's majority opinion in People v. Campbell, 237 Mich. 424, 429, that, "slight negligence is never actionable either in the civil or criminal law and is not so under this statute." From this, it is reasoned that neither can slight negligence of a plaintiff be contributory negligence barring his right to recover. The statute referred to in the quotation was PA 1921, No 98,[*] defining the crime of negligent homicide under which the prosecution in that criminal case had been brought. No question did or could have arisen in that criminal prosecution as to the propriety of a jury instruction on slight contributory negligence such as here given. The mentioned statement in the opinion was gratuitous, obiter dictum, made without benefit of citation or authorities, and was not necessary nor even pertinent to the decision that the conviction should be reversed and a new trial granted because of error in admitting evidence *444 as to defendant's violation of the speed limit in a business district at a point remote from the scene of the accident and in an instruction to the jury that the deceased, for whose killing defendant was being criminally prosecuted, was, as a matter of law, free from contributory negligence. It is of no precedential value here. Also cited is Michigan Central R. Co. v. Coleman, 28 Mich. 440 (4 Am Neg Cas 1). There, in a suit by a passenger against the railroad, this Court held improper an instruction that carriers of passengers are "legally bound to exert the utmost care and skill in conveying their passengers, and are responsible for the slightest negligence or want of skillfulness" and "that the degree of responsibility to which carriers of passengers are subjected is not ordinary care, which will make them liable for ordinary neglect, but extraordinary care which renders them liable for slight neglect." Of that instruction, this Court said (p 449) that it "would fairly permit the jury to find anything to be negligence which could by any possibility be avoided." Despite the use of the words "however slight" in the instructions in the instant case, they did not, as in Coleman, indicate that the duty reposing on plaintiff's decedent was to exert the utmost care and skill or that he was subjected to responsibility for extraordinary care, or that he was guilty of contributory negligence if he did or failed to do anything which could by any possibility be avoided. On the contrary, the court in this case expressly told the jury that the duty reposing on plaintiff's decedent was "to exercise ordinary care for his own protection." We are aware of the situation in Clark v. Grand Trunk Western R. Co., 367 Mich. 396, in which 5 of the 8 members of this Court signed an opinion holding that a claim of error of the kind above considered was without merit and 1 of those 5 then also joined *445 the 3 remaining members of this Court in signing an opinion holding it to be reversible error. The consequence thereof may be debatable. In Iwrey v. Fowler, 367 Mich. 311, this Court, after holding that for another reason the case should be reversed and remanded for new trial, also said the following (pp 316, 317): "Complaint is also made with reference to the following statement in the charge, likewise bearing on the question as to the contributory negligence of Mrs. Iwrey: "`Under our law it does not make any difference if the defendant is 99.9% guilty of negligence, if the plaintiff driver is 1-10th of 1%, or in any way guilty of negligence that contributed to the accident she cannot recover.' "It is insisted that said statement might have been interpreted by the jurors as barring recovery on the basis of negligence so slight as to be immaterial, or possibly on a finding of remote lack of due care as distinguished from negligence proximately contributing to the accident. That the instruction might have been so construed is possible. The specific reference to stated percentages might well have been confusing." The instruction at bar made it clear that the only negligence of decedent which would defeat plaintiff's cause of action is negligence which proximately causes the accident, and that proximate cause means that act or failure to act which an ordinarily prudent person ought reasonably to have foreseen might produce the injury in question. These instructions did not, as in Iwrey, give the jury occasion to find "remote lack of due care as distinguished from negligence proximately contributing to the accident" as a bar to recovery. Both in Iwrey and in Schattilly note is taken of the possibility for confusion in the instructions there *446 involved. This factor also is mentioned in comments of the Illinois supreme court committee in its Illinois Pattern Jury Instructions. To a suggestion of that character, made to the trial courts of this State, that this type of instruction might, in the interests of clarity, better be omitted in the future, this writer has no objection. This does not include agreement that the instructions given in this case were confusing or constituted prejudicial error. Appellant further complains of the court's repeating the words "however slight" 16 times. This occurred 6 times during the main charge and 10 times when the jury had returned to ask the court questions about contributory negligence and to what acts of decedent the defendant's claims of contributory negligence were directed. The court, after conferring with counsel on both sides and apparently with their consent and approval, then advised the jury that defendant's claim of contributory negligence went to 2 particular claimed acts of decedent. These were not acts which could be done slightly. Either they were or were not done. That was a disputed question of fact. If the jury found that decedent had done 1 or either of them they could properly find him guilty of contributory negligence. The questions asked by the jury and the answers of the court thus given, limiting the possibility of contributory negligence to 2 claimed specific acts, eliminated altogether any possible consideration of some slight negligence or anything remote from the proximate causes of the injury. When the jury returned to inquire about defendant's theory as to what claimed acts of decedent constituted contributory negligence, the court answered their questions but did not repeat plaintiff's request, on which the court had already instructed, that in determining whether decedent was guilty of contributory negligence, he must be judged not only *447 by his own actions but also by what he had a right to expect of others as to performance of their legal duties. This was not error, inasmuch as the subject had been thoroughly covered. Baker v. Saginaw City Lines, Inc., 366 Mich. 180. Plaintiff charges as error the court's failure to give the requested instruction that decedent was presumed to be free from contributory negligence. Plaintiff says that not only did the defense fail to overcome or rebut the presumption by evidence but, on the contrary, it was supported by the testimony of an impartial eyewitness who saw and testified concerning what decedent did, completely contradicting and refuting the defense's claim of contributory negligence. Under such circumstance, there was no occasion for an instruction on a presumption when plaintiff had the benefit of express testimony covering the subject of the claimed presumption. Furthermore, the court properly instructed the jury, under former Court Rule No 23, § 3a (1945),[**] that the burden rests on defendant to prove contributory negligence. With plaintiff no longer bearing the burden of proving decedent's freedom from contributory negligence, the difficulty formerly confronting such plaintiff when eyewitness proofs were unavailable, is absent and the need for instruction as to the presumption has vanished. The court instructed that "merely because there was an accident does not mean that somebody must be liable. There are accidents, many accidents, for which nobody is liable for one reason or another." This was not an "unavoidable accident" instruction such as held to be erroneous in McClarren v. Buck, 343 Mich. 300. As in Lober v. Sklar, 357 Mich. 166, despite repeated requests from court to counsel for suggestions or criticisms of his lengthy instructions, *448 plaintiff's counsel said nothing about this part of the instruction and no objection or suggestion was made that an "unavoidable accident" instruction had been given. No reversible error occurred in this connection. The judgment should be affirmed. Costs to defendant. CARR, C.J., and KELLY, J., concurred with DETHMERS, J. BLACK, J. I agree with Justice DETHMERS that the trial judge, in the repetitious course of instruction upon the subject of contributory negligence, "caused the words `however slight' to modify the word `negligence.'" I do not agree that this was "properly" done, and take issue with my Brother's conclusion that what in unintended fact was an argument to the jury, for the defense by the trial judge, did not constitute reversible error. The argument was the final one of the case. It must have been effective. We have consistently held that unnecessary repetition of the instructed burden-duty of one party or the other, in a typical negligence case, is of itself argumentatively prejudicial (Bowmaster v. William H. De Pree Co., 252 Mich. 505, 515; Buchel v. Williams, 273 Mich. 132, 136). And I experience no difficulty in holding that such error is compounded unto reversible error when the matter thus repeated — 16 times — is of itself tacitly conceded[1] if not patent error. This plaintiff, like the dodo, never had a chance. Her decedent by repeated instruction was held to a high or extraordinary degree of common-law care *449 on penalty of verdict against her; whereas the defendants were held only to the duty to exercise that degree of care which the common law exacts generally; that of ordinary or due care. The result was a verdict coerced by erroneous and prejudicial instruction, given repeatedly even after a visibly puzzled jury had twice requested definitive instruction on the subject of what is and what is not negligence and contributory negligence. I know of no better way to direct a verdict for the defendant in like circumstances excepting that such be done without instruction at all. Possibly, if not probably, members of this Court need be not too far distant, time-wise, from our trial courtrooms to comprehend the devastating influence argumentatively erroneous instructions, repeated for one side or the other, have upon jurors; men and women who have just taken an oath to "take the law from the court." As said in McDuff v. Detroit Evening Journal Co., 84 Mich. 1, 10 (22 Am St Rep 673): "Appellate courts must presume that one occupying so important a position as that of circuit judge can influence a jury. It is their duty to follow his instructions as to the law. * * * Trial courts, therefore, cannot be too circumspect and careful to see that questions of fact are submitted to the unbiased judgment of the jury, which, under our jurisprudence, are for their sole determination." Now for a little law, resumptive of the inconclusive debate started in Clark v. Grand Trunk W.R. Co., 367 Mich. 396, 402. A day or so after Justice DETHMERS submitted (February 20, 1963) his proposed opinion of this case of Mack, the latest volume of American Law Reports arrived in the law offices and law libraries of Michigan (87 ALR2d). In that volume the reader finds an exhaustive annotation of the topic, "Propriety and prejudicial effect of instructions *450 referring to the degree or percentage of contributory negligence necessary to bar recovery," commencing at page 1391. It is unnecessary here to review the multitudinous cases cited therein, the annotator having accurately summarized (1398, 1399): "The decided weight of authority tends to view that contributory negligence is not susceptible of division into degrees or percentages, and that an instruction importing such division or inviting a comparison of the relative amount of negligence attributable to the parties to the action is erroneous."[2] In the annotated case (Busch v. Lilly, 257 Minn 343 [101 NW2d 199, 87 ALR2d 1389]), the court said, unanimously (p 344): "As early as Craig v. Benedictine Sisters Hospital Ass'n, 88 Minn 535 (93 N.W. 669), we held that it was erroneous to instruct that if plaintiff's intestate was negligent in any degree — even the slightest degree — and his negligence contributed in the slightest degree to his death, the plaintiff could not recover." This is, of course, fully consistent with Restatement of Torts, § 465, p 1229 et seq., the substance of which is that the plaintiff's negligence is a legally contributory cause "if, but only if, it is a substantial factor in bringing about his harm." Proceeding further, through section 465, we find that Restatement refers us, for definition of the phrase "substantial factor," to those sections of the work which define the defendant's conduct as a "substantial factor" in bringing about the plaintiff's harm. There is, I trow, some difference — in the applied common law of contributory negligence — between a "substantial" factor and a "slight" factor. Plaintiffs *451 should not be instructed out unless their contributed negligence is something more than "slight"; which is to say again, as in the Clark Case at 405, that the respective duties of plaintiff and defendant — in typical common-law negligence cases — are measurable properly and alike by the standard of ordinary or due care. Benedict v. City of Port Huron, 124 Mich. 600, a case which seems steadily to have been read 2 ways by lawyers and judges for many years, may be responsible for the error below. Be that as it may, the case has never been dissected by this Court for its veritable essence; yet as veteran trial lawyers know full well the wording thereof has caused no end of controversial discussion in our trial courts when some party defendant has requested an instruction that "contributory negligence, however slight," bars recovery. The first fact of Benedict is that the decision "no reversible error" was begotten, not of correctness of the criticized charge but of final conclusion that the trial judge made it "clear," to the jury, that want of ordinary care was made the test of contributory negligence (p 606). The Court said what cannot be said for this case of Mack (p 606): "The language quoted from the charge might, under some authorities, be objectionable, if standing alone; but, in connection with the remainder of the charge, it is clear that want of ordinary care was made the test of contributory negligence." The second fact of Benedict is the unfortunate failure — seen now by hindsight — of Justice HOOKER to continue unto context end thereof his limited quotation from Cremer v. Town of Portland, 36 Wis 92. The Justice's quotation must have been taken from Beach on Contributory Negligence (3d ed), § 20, p 24, a then new work which arrived (March 24, 1899) in *452 the State law library but a few months prior to submission of the Benedict Case. Note Justice HOOKER'S authoritative reference to Beach on the same page of Benedict's report (p 606). Here is the rest of the quotation from Cremer (pp 99, 100), with Mr. Beach's added single sentence comment: "`And so were the jury instructed, in substance and effect. It is not the law that slight negligence on the part of the plaintiff will defeat the action. Slight negligence is the want of extraordinary[3] care and prudence, and the law does not require of a person injured by the carelessness of others, the exercise of that high degree of caution as a condition precedent to his right to recover damages for the injuries thus sustained.' The weight of the most intelligent authority will, it is believed, sustain this position." My Brother refers the profession to Haara v. Vreeland, 254 Mich. 462, suggestibly as authority for holding that the present "however slight" instruction, even though it was driven home 16 times (the word "slightest" was used once in Haara's charge), was at best harmless error. Here, submitted without comment, is the reason why Haara's appeal to the point came for naught (pp 466, 467): "Without holding that the exact wording of the charge is an accurate statement of the law, we are of the opinion that at least as used in the context of the charge it was not prejudicial. The quoted sentence is from the very early part of the charge where the court was obviously attempting to lay before the jury a general outline of the issues involved. In the same paragraph he further stated: "`You will let me state that so that there will be no doubt about the question and that the court will not be misunderstood. That the 2 things the burden *453 is upon the plaintiff to establish, the 2 things: First, that the defendant was guilty of negligence. Second, that the plaintiff was free from negligence; and establish these 2 things by a preponderance of the proof, before you pass to the assessment of damages.' "In the next paragraph the court properly defined negligence and contributory negligence, and particularly applied the same test as to what constituted negligence on the part of the defendant and as to what constituted contributory negligence on the part of Mr. Haara." (Emphasis supplied by present writer.) To summarize all this, there is no respectable authority extant for the repetitious instructions plaintiff criticizes. This is not to indicate or hint any partisan or unfair conduct on the part of the trial judge. He, too, as suggested above, may have read the Benedict Case as many others have. Certainly, convinced as he was that such instructions were "the law," his error was no more than that of other honest and capable judges, proceeding honestly and capably. As this Court once said, through Justice COOLEY (Wheeler v. Wallace, 53 Mich. 355, 358): "In this case we are satisfied the plaintiff has not had a fair trial. In saying this it is not necessary to impute to the judge any purpose to be a partisan in the case, or otherwise unfair. It is not likely he intended to try the case with less than his customary urbanity and courtesy; and when he brings before the jury, as he does in his charge, the familiar figure of the goddess of justice, with her scales nicely weighing and scrutinizing the evidence, it is to be assumed that he means to be as impartial himself as he directed the jury to be. It is nevertheless possible for a judge, however correct his motives, to be unconsciously so disturbed by circumstances that should not affect him, as to do and say, in the excitement of a trial, something, the effect of which he *454 would not at the time realize, and thereby accomplish a mischief which was not designed. Possibly such circumstances may have existed in this case." It is said, finally, that counsel "apparently" consented to repetition of this "however slight" legal torture of the decedent's duty to protect himself from injury. I find no hint in the appendices of such unbelievable "consent" and observe that the adjective "apparently" does not — by itself — supply facts. I agree with Justice DETHMERS that no reversible error resulted from denial of plaintiff's request to charge that her decedent was presumptively free from contributory negligence. The request was not phrased in accordance with what apprehendedly is the instructionally correct rule for cases like this, set forth in durable Gillett v. Michigan United Traction Co., 205 Mich. 410, 421. Aside from that, I must register disagreement with the conclusion that former Court Rule No 23, § 3a (1945),[4] now GCR 1963, 111.7, has eliminated need for instruction, when such instruction is otherwise appropriate, upon the subject of presumed due care. Conceivably, many cases will come to this Court where, even though the defendant now bears the burden of proving contributory negligence, the plaintiff on properly couched request in a jury case, or on judicial consideration of a nonjury case, will be entitled to aid of the presumption. Surely that will be true when, as here, the defendant's proof of such negligence presents a doubtful, or uncertainly circumstantial, question of fact for the jury, and certainly it will be true when the defendant presents no proof of contributory negligence. Such a case, by the way, was before us when Kratochvil v. City of Grayling, 367 Mich. 682 (tried after the effective date of said section 3a) was before us. The opinion of that case was *455 written for a unanimous Court by my Brother DETHMERS. Its pertinent essence was (p 687): "That leaves plaintiff [administratrix], then, where she started, with the benefit of the presumption mentioned in the Kruis Case [Kruis v. Grand Rapids, G.H. & M.R. Co. 190 Mich. 105]." For the error above I would reverse and remand for new trial, with costs to plaintiff. KAVANAGH, SOURIS and OTIS M. SMITH, JJ., concurred with BLACK, J. O'HARA, J., took no part in the decision of this case. NOTES [*] Re-enacted in PA 1931, No 328, § 325 (CL 1948, § 750.325 [Stat Ann 1954 Rev § 28.557]). — REPORTER. [**] As added, effective June 1, 1958. See 352 Mich. xiv. See currently, GCR 1963, 111.7. — REPORTER. [1] The reference is to Justice DETHMERS' statement that he has "no objection" to a suggestion "that this type of instruction" (that of holding a plaintiff to the duty of refraining even from "slight" contributory negligence) might "better be omitted in the future." (p 446.) [2] For a like summation, headed "Instructions favoring defendant," see page 1404 of the annotation. [3] The stress by italics, laid upon "extraordinary", is that of the Wisconsin court; not that of the present writer. [4] As added, effective June 1, 1958. See 352 Mich. xiv. — REPORTER.

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345 A.2d 504 (1975) UNION MUTUAL LIFE INSURANCE COMPANY et al. v. Joseph W. EMERSON et al. and International Union of Elevator Constructors et al. Supreme Judicial Court of Maine. October 8, 1975. *505 Bernstein, Shur, Sawyer & Nelson by Gregory A. Tselikis, Sumner T. Bernstein, Portland, for plaintiffs. Charles R. Larouche, S. Kirk Studstrup, Asst. Attys. Gen., Augusta, for defendants. Ranger, McTeague & Higbee, P.A. by Patrick N. McTeague, Brunswick, for intervenors. Before DUFRESNE, C. J., and WEATHERBEE, WERNICK, ARCHIBALD, and DELAHANTY, JJ. ARCHIBALD, Justice. This case is before us on report pursuant to Rule 72(b), M.R.C.P. Union Mutual Life Insurance Company (Union Mutual) sought a decision from the Board of Elevator Rules and Regulations[1] (the Board) that its home office building is an "industrial plant" and, therefore, not required to have its elevators serviced by a licensed elevator mechanic as is mandated by 26 M.R.S.A. § 439.[2] Bradley G. Westcott is a party plaintiff and an employee of Union Mutual. Since at the time he did not have requisite experience while employed by an elevator company, he was denied the opportunity to take an examination which would qualify him for an elevator mechanic's license under the provisions of 26 M.R.S.A. § 440.[3] The defendants are the supervising elevator inspector and the director and former director of the Bureau of Labor and Industry. The Internation Union of Elevator Constructors and certain members of the Union moved to intervene in the action and were allowed to do so in accordance with Rule 24(b), M.R.C.P. In an administrative hearing the Board determined that Union Mutual's home office building was not an industrial plant and also that Mr. Westcott was ineligible to take the requested examination. Union Mutual and Westcott then appealed to the *506 Superior Court pursuant to 26 M.R.S.A. § 403, seeking a reversal of the foregoing orders and a declaration that both sections 439 and 440 were invalid. By agreement of the parties the case was then reported to the Law Court. The issue raised by Mr. Westcott may be rather summarily disposed of. During the pendency of this litigation, 26 M.R.S.A. § 440 was amended, effective October 1, 1975.[4] Under the amended act an applicant may qualify for the examination if in addition to the qualifications previously existing he "has had equivalent experience as defined by regulations of the board." As far as the record now discloses Mr. Westcott is presently eligible to take the examination. Since his challenge to the statute was premised on the invalidity of the provision requiring two years experience while employed by an elevator company, the issue thus raised is no longer viable. In Berry v. Daigle, 322 A.2d 320, 328 (Me.1974), we held: "[A] statute passed during the course of litigation, and which obviates the gravamen of the complaint, moots and renders unnecessary a determination of the former controversy." See also Shapiro Bros. Shoe Co., Inc. v. Lewiston-Auburn S.P.A., 320 A.2d 247 (Me.1974); Good Will Home Association v. Erwin, 285 A.2d 374 (Me.1971); Cumberland Farms v. Maine Milk Comm., 160 Me. 389, 205 A.2d 158 (Me.1964). The following questions remain: (A) Is the Union Mutual office building an industrial plant as that term is used in 26 M.R.S.A. § 439? (B) If the office building is not an industrial plant as defined in Section 439, does the act violate Union Mutual's right to equal protection under either the United States or the Maine Constitutions? FACTS Union Mutual occupies certain premises in Portland as its home office, out of which it conducts an insurance business which is national in scope. The building is three stories in height, has a floor area of approximately 230,000 square feet and is served by one freight and four passenger elevators. Approximately nine hundred people are employed in the building. Additionally, substantial numbers of business invitees visit the premises on a daily basis. The elevators are in nearly constant use. Within this structure is also a printing facility operated by Union Mutual which handles the total printing demands of the company. The mail room employs eight persons. Dining facilities are available, staffed by twenty people who serve an average of slightly less than seven hundred customers daily. Also included within the complex is a data processing service which has the second largest computer installation in Maine. Several concerns other than Union Mutual avail themselves of the computer service. In order to maintain the structure Union Mutual employs a "plant engineer"[5] who heads a staff of forty-one persons and is responsible for all the necessary in-house maintenance and much of the work involved in the servicing and repair of numerous types of equipment, electrical and otherwise. These essential facts appeared in testimony and by stipulation in a hearing before the Board. The Board reached the conclusion that "Union Mutual Life Insurance Company is not an industrial plant within the meaning of Section 439. . . ." *507 A Was it error by the Board to conclude in light of all of the facts that the building occupied by Union Mutual was not an "industrial plant"? It is argued that the Legislature envisioned an industrial plant in the context of Section 439 as one that not only is highly capitalized, has a large labor force, is departmentalized, produces some kind of a product, occupies a building or buildings exclusively for business purposes but also has on its staff skilled personnel competent to maintain the plant with safety for those who occupy it. We do not agree with the scope of this definition. If the argument advanced were to be adopted, it would seem that any general office building could in theory qualify as an industrial plant. An elementary rule of statutory construction is that words must be given their common meaning unless the act discloses a legislative intent otherwise. Doughty v. Maine Central Trans. Co., 141 Me. 124, 39 A.2d 758 (1944); Portland Terminal Co. v. Boston and M.R.R., 127 Me. 428, 144 A. 390 (1929). Furthermore, we determine such intent by giving statutory language that construction which men of "common intelligence would readily ascribe" thereto. State v. Shaw, 343 A.2d 210, 213 (Me.1975); State v. Davenport, 326 A.2d 1 (Me.1974). The term "industrial plant" has been construed in other jurisdictions as not having the broad sweep that Union Mutual would have us adopt. "[T]he ordinary man would understand an industrial plant to be any factory, business or concern which is engaged primarily in the manufacture or assembly of goods or the processing of raw materials, or both." State Police Department v. Hargrave, 142 Ind.App. 684, 693, 237 N.E.2d 269, 274 (1968). The Pennsylvania Court used the following language in defining the term industrial plant: "By no stretch of the imagination could a bank building, a hotel, a theater or any of the other business establishments referred to by plaintiff [office building, restaurant] be considered an industrial plant. It is true that we sometimes speak of `the movie industry', the `hotel industry' or `the banking industry', but that is merely a loose use of language to convey that idea that the particular business is a sizeable one. In spite of that colloquialism, we do not speak of the buildings housing such businesses as `industrial plants.'" North Side Laundry Co. v. Board of Property Assess., 366 Pa. 636, 639, 79 A.2d 419, 421 (1951). The record clearly indicates that the structure occupied by Union Mutual serves the primary purpose of providing office facilities so that its employees may do those things necessary in the home office of a large insurance company. We find no error in the interpretation given by the Board to the term "industrial plant." B Union Mutual's attack on the constitutionality of 26 M.R.S.A. § 439 is likewise without merit. All acts of the legislature are presumed to be constitutional and the burden of proof is on the party who asserts an infirmity. State v. Rush, 324 A.2d 748 (Me.1974); Baxter v. Waterville Sewerage Dist., 146 Me. 211, 79 A.2d 585 (1951). A statute will not be found to be a violation of equal protection if facts may reasonably be conceived to justify it. McGowan v. State of Maryland, 366 U.S. 420, 81 S. Ct. 1101, 6 L. Ed. 2d 393 (1961); State v. King, 135 Me. 5, 188 A. 775 (1936). There can be no differences in the treatment of persons under law except upon *508 some reasonable differentiation fairly related to the object of the regulation. However, if the classification, although discriminatory, is based upon such difference, it is not a violation of equal protection. Shapiro Bros. Shoe Co., Inc. v. Lewiston-Auburn S.P.A., supra; Portland Pipe Line Corp. v. Environmental Imp. Com'n, 307 A.2d 1 (Me.1973); Wright v. Michaud, 160 Me. 164, 200 A.2d 543 (1964). The classification drawn by the Legislature exempting "industrial plants, manufacturing plants and hospitals" from the provisions of Section 439 can be rationally defended. First, there is no doubt, as the parties admit, that the State has a legitimate interest in the exercise of its police power in promoting the safe maintenance and repair of elevators. Secondly, the method chosen, i. e., maintenance and repair by licensed persons, is reasonably calculated to further that interest. The Legislature could have determined that industrial and manufacturing plants are more likely to employ persons qualified to service elevators since the repair of mechanical and electrical equipment is an integral part of their operation. Moreover, it could have decided that industrial and manufacturing plants present a reduced risk of injury since they use elevators primarily for moving freight, not people. Likewise, it would not be unreasonable for the legislature to conclude that a hospital, in view of the complex type of equipment it employs, will be staffed with persons who are both safety conscious and technically competent. We may also assume that the Legislature had an awareness of the great number of elevators to be found in stores, hotels, and office buildings throughout the State, of varying sizes and with varying types of supportive personnel. The common denominator of these establishments is the use of the elevators therein by the general public, the legislative concern being that such use be as safe as possible. It accomplished this purpose by requiring that the servicing and repair of such elevators be done only by persons found qualified to do so by their ability to pass an examination. If discrimination in some degree results, such discrimination is nonetheless constitutionally tolerable. Finally, Union Mutual contends that if its building is not an industrial plant the statute suffers from "under inclusion" since in fact a maintenance staff equal in size and expertise to that of any industrial plant in the State is employed in the maintenance and mechanical operation of this building. Where, as here, the classification has some reasonable basis, it does not violate the equal protection clause of either the United States or Maine Constitutions merely because it is not made with mathematical nicety, or because in practice it results in some inequality. Morey v. Doud, 354 U.S. 457, 77 S. Ct. 1344, 1 L. Ed. 2d 1485 (1957); Atl. & Pac. Tea Co. v. Grosjean, 301 U.S. 412, 57 S. Ct. 772, 81 L. Ed. 1193 (1937); Ozan Lumber Co. v. Union County Bank, 207 U.S. 251, 28 S. Ct. 89, 52 L. Ed. 195 (1907). In Ace Tire Co., Inc. v. Municipal Officers of Waterville, 302 A.2d 90, 95 (Me. 1973), we held: "If a statute is within the legitimate range of the police power, has a fair tendency to accomplish the end proposed, is not unjustly discriminative, and does not destroy nor despoil a particular class, courts should not declare it unreasonable merely because they consider it impolitic or because it will operate harshly upon some individuals. The necessity for the statute and the manner of its enforcement are fundamentally legislative, not judicial, questions. . . ." The entry is: Remanded to the Superior Court for further proceedings consistent with this opinion. POMEROY, J., did not sit. All Justices concurring. NOTES [1] 26 M.R.S.A. § 431. [2] "No person shall service, repair, alter or install any elevator unless he is licensed as an elevator mechanic under section 440. Elevator work in industrial plants, manufacturing plants and hospitals may be performed by plant personnel who are not licensed under sections 439 to 441, provided such work is supervised by the plant engineer." [3] "The director shall issue an elevator mechanic's license to any person who makes application therefor, provided said person has had at least 2 years experience in the service, repair, alteration or installation of elevators while employed by an elevator company and provided said person shall satisfactorily pass the examination provided for in section 441." (Emphasis supplied.) [4] P.L. 1975, ch. 286. [5] All parties have agreed that this person is a qualified "plant engineer" as that term is used in Section 439.

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242 F.2d 526 The TEXAS COMPANY, Claimant, Appellant,v.R. O'BRIEN & CO., Inc., Libelant, Appellee. No. 5171. United States Court of Appeals First Circuit. March 20, 1957. 1 Joseph F. Dolan, Boston, Mass., with whom Joseph M. Brush, New York City, was on brief, for appellant. 2 Seymour P. Edgerton, Boston, Mass., with whom Bingham, Dana & Gould, Boston, Mass., was on brief, for appellee. 3 Before WOODBURY and HARTIGAN, Circuit Judges, and ALDRICH, District Judge. 4 ALDRICH, District Judge. 5 This is an appeal from a final decree of the District Court following the confirmation of an assessor's report on damages. Appellant appeared as claimant in a libel in admiralty brought by appellee, as owner of the trawler Lynn, against the S.S. Ventura. On November 28, 1951, the Lynn was struck and sunk by the Ventura. This proceeding followed. After the District Court had determined that the Ventura was solely at fault, R. O'Brien & Co. v. S.S. Ventura, D.C.Mass.1954, 130 F. Supp. 176, affirmed sub nom. Texas Co. v. R. O'Brien & Co., 1 Cir., 1955, 225 F.2d 280, the question of damages was referred to an assessor. The assessor found that although the Lynn had been raised and re-commissioned, she was a constructive total loss. No criticism is made of this finding. Under this circumstance the normal measure of damages is the vessel's fair market value immediately before the sinking. Alaska S.S. Co. v. Inland Navigation Co., 9 Cir., 1914, 211 F. 840. The assessor found that there was no market value established. Appellant complains of this finding, and further contends that the assessor's determination of a value of $200,000 is clearly erroneous. Admiralty Rule 43½, 28 U.S.C.A., 1932, 286 U.S. 572; United States v. Kirkpatrick, 3 Cir., 1951, 186 F.2d 393; cf. The I. C. White, 4 Cir., 1924, 295 F. 593 ("substantial error"). 6 The assessor found that at the time the Lynn was struck there was a "tight market" for fishing vessels, by which was meant many buyers, but few sellers. This condition lasted from 1951 to the spring of 1953. He found that ten sizable trawlers were sold in this area during that period, though as to one certain statistics were missing. These vessels varied in age, construction, and size. Some were smaller than the Lynn, some larger; some younger, and some older. Some were better than the Lynn in some respects, and not in others, while others exceeded the Lynn in other particulars. In various instances individual characteristics of these vessels were close to the Lynn's, but in none were they all close. 7 Comparable sales are normally "the best evidence of market value." Baetjer v. United States, 1 Cir., 1944, 143 F.2d 391, 397, certiorari denied, 1944, 323 U.S. 772, 65 S. Ct. 131, 89 L. Ed. 618. Nor is the use of such evidence confined to where a layman can interpret it by inspection, or by the application of some mathematical formula. Dean v. Woods, Em.App., 1948, 169 F.2d 952. If the assessor was unable, unaided, to find the market value of the Lynn from these other sales, he should not then have proceeded, "failing market value," to quote his report, to determine worth on some other basis, citing The President Madison, 9 Cir., 1937, 91 F.2d 835, 845. This was a misconception. The Madison presented the exceptional case where, because of the special purpose and peculiarities of the vessel, what she would bring on the market would not fairly represent her true worth. In such event market value is not the test. Cf. United States v. Eastern S.S. Lines, Inc., 1 Cir., 1948, 171 F.2d 589. Obviously this rule is to be sparingly applied. The I. C. White, 4 Cir., 1924, 295 F. 593. It is the very reverse of the situation here, where the vessel was of popular design, with many buyers available. Under these circumstances she had a market value, and the sole endeavor should have been to determine what it was, not to have sought something else. This is not to say that other factors besides sales could not be regarded, but they should have been considered only insofar as they shed light upon this single objective. 8 It is not clear on what basis, or on what evidence, the assessor determined value. It was not on original cost, depreciated, as there was no evidence of such cost. It was not on reproduction cost, depreciated, because the assessor found that this figure lay between $180,000 and $228,000, and that it was not necessary to find it any more definitely. It was not on earnings. He "discarded earnings," as "too indefinite," and we agree with his action. It was not on hull insurance, as there was no evidence thereof. It was not on the opinion of the owner, as he expressly rejected it. This action, too, was clearly correct, since it was based upon earnings. It was not upon any expert opinion, because he found that even as to "the most credible * * * I am not inclined to give it any weight." 9 While the testimony of an expert does not have to be accepted, if the assessor could not reach a conclusion from the sales he should not have rejected it without some reason. Cullers v. Commissioner of Internal Revenue, 8 Cir., 1956, 237 F.2d 611; Capitol-Barg Dry Cleaning Co. v. Commissioner of Internal Revenue, 6 Cir., 1942, 131 F.2d 712. However, we feel he did have reason. On the basis of their lack of qualifications, either general or particular, three of appellant's experts could easily be disregarded. Appellant's remaining expert, Barrie, had general qualifications. He had, also, special knowledge of the Lynn, having appraised her sister ship, the Triton, in 1952. That appraisal had been $185,000. The Triton had a one-year-old 500 horsepower engine (as against the Lynn's 350 h.p.), installed at a cost of $66,000, with $20,000 more spent on her for repairs. She was 15 years old, against the Lynn's 10. Barrie valued the Lynn at $140,000. If a 15 year old hull without engine or repairs was worth $100,000, possibly $140,000 for the same hull only 10 years old, with an engine, even if the Lynn's engine were of no great worth, might seem low. He made no attempt to explain this, or to show how his figure of $140,000 was to be reconciled with the $185,000 obtained for the smaller Rosalie D. Morse. 10 Appellee's expert, Allen, the assessor found the most credible. He valued the Lynn at "$200,000 to $225,000; over $200,000." Passing the fact that his opinion in 1951 had apparently been "around $200,000," and that he changed his testimony on the stand to say the vessel was worth $200,000 even in the admittedly soft market of 1948, we think his underlying basis was unsupported. He made his appraisal by computing reproduction cost, depreciated, and then adding a substantial amount to it because the market was tight. Reproduction costs were also high. Quite possibly they were even higher than market. There was no evidence that other vessels were selling over their depreciated reproduction cost. Cost, either original or reproduction, may bear no relation to market value at any particular moment in an industry that fluctuates as this one. Cf. The I. C. White, 4 Cir., 1924, 295 F. 593. 11 Perhaps because of his misconception about market value, we think it clear that the assessor failed to give adequate weight to contemporary sales. The vessel most like the Lynn was the Rosalie D. Morse. She sold for the highest price of the ten, $185,000. She was 7 years old. Assuming a straight line depreciation of 5%, as testified to by appellee's expert, she was then 35% depreciated. Depreciating her for 3 more years, to bring her to the age of the Lynn, would reduce this figure to $142,000. On the other hand, the Lynn was 170 gross tons, as against the Morse's 153. Her fish-carrying capacity, though less than the Lynn's, was on a more favorable ratio to her tonnage. Increasing $142,000 proportionately to that ratio would result in $164,000. For an adequate comparison there must, however, be a deduction for the fact that the orphaned Lynn's engine presented a serious parts difficulty. 12 The Esther M. was also 7 years old. She was 250 gross tons, against the Lynn's 170, and had a 550 h.p. motor rather than 350. She brought $175,000. If that were depreciated for 3 more years, at 5%, it would mean, for this much larger boat, $135,000. It is true that this was a forced sale, for which some allowance should be made. The Carole June, with 400 h.p., had a gross tonnage slightly greater than the Rosalie D. Morse, but she carried 8% less fish. She sold for $123,000, when only 5 years old. The Batavia, a larger and more desirable hull than the Lynn, except for her age, but with a 10-year-old 600 h.p. engine, sold for $126,000. She needed some $20,000 spent on her. Even appellee's expert did not use this sale as justifying his valuation of the Lynn. Clearly, not even the most favorable of the sales would warrant finding a market value of $200,000. 13 Since the decree must be reversed, the question arises as to what further action we should take. The older cases, without discussion of the weight to be accorded to the decision below, made their own findings of value. The Cushing, 2 Cir., 1923, 292 F. 560, affirmed sub nom. Standard Oil Co. of New Jersey v. Southern Pacific Co., 1925, 268 U.S. 146, 45 S. Ct. 465, 69 L. Ed. 890; The I. C. White, 4 Cir., 1924, 295 F. 593; Alaska S.S. Co. v. Inland Navigation Co., 9 Cir., 1914, 211 F. 840. Insofar as such action may have been bottomed on the principle that an admiralty appeal was a trial de novo, this is no longer law. The present admiralty rule is that findings are not to be reversed unless "clearly erroneous," comparable to Fed. Rules Civ.Proc. rule 52(a), 28 U.S.C.A., McAllister v. United States, 1954, 348 U.S. 19, 75 S. Ct. 6, 99 L. Ed. 20. Some courts have held Rule 52(a) not to apply where the findings below were based upon stipulated or undisputed subsidiary facts.1 We have not. Collins v. Commissioner of Internal Revenue, 1 Cir., 1954, 216 F.2d 519. In our opinion Rule 52(a) unambiguously governs all findings, and its additional caveat, that due regard is to be given to the trial court's opportunity to judge credibility, is merely cautionary advice, not a variation in the scope of review. Cf. Galena Oaks Corp. v. Scofield, 5 Cir., 1954, 218 F.2d 217. We do not think the substantive test, and possible success on appeal, whatever the nature of the case, should depend upon whether the evidence at the trial had been stipulated or contested. But once a finding has been determined to be clearly erroneous, different considerations apply to our subsequent action. Our disposition may quite properly depend upon the then state of the record. In such event, if all subsidiary facts have been already found, or stand admitted, there can be no need of sending the case back. Our acceptance of the assessor's special findings here gives us a record free of dispute except as to the ultimate factual inference to be drawn, and hence leaves us as fully able to draw it as would be the trial court. The test for reversibility does not require us to return the case for a new finding. Smith v. Dravo Corp., 7 Cir., 1953, 208 F.2d 388; see Yanish v. Barber, 9 Cir., 1956, 232 F.2d 939, 947. 14 In our opinion the market value of the Lynn at the time of the collision on the basis of the subsidiary findings below was $150,000. 15 A judgment will be entered vacating the order of the District Court and remanding the case to that Court for the entry of a decree in conformity with the views expressed in this opinion. Notes: 1 There is a singular lack of unanimity on this point, not only between, but within, individual circuits. The following are recent examples: Court free to disregard ultimate findings when based upon written or undisputed evidence: Kraft Foods Co. v. Commissioner of Internal Revenue, 2 Cir., 1956, 232 F.2d 118; United States v. One 1950 Buick Sedan, 3 Cir., 1956, 231 F.2d 219 (court reaches result by indicating an ultimate "inference" is not a "finding of fact."); Seagrave Corp. v. Mount, 6 Cir., 1954, 212 F.2d 389; Chicago, Burlington & Quincy R. Co. v. United States, 7 Cir., 1955, 221 F.2d 811; Stevenot v. Norberg, 9 Cir., 1954, 210 F.2d 615. Court cannot reverse such findings merely because it disagrees with them, but must conclude they are "clearly erroneous": Central Ry. Signal Co. v. Longden, 7 Cir., 1952, 194 F.2d 310; Coleman v. Sears, Roebuck & Co., 8 Cir., 1956, 238 F.2d 206; Hycon Manufacturing Co. v. H. Koch & Sons, 9 Cir., 1955, 219 F.2d 353, certiorari denied, 1955, 349 U.S. 953, 75 S. Ct. 881, 99 L. Ed. 1278; Kaye v. Smitherman, 10 Cir., 1955, 225 F.2d 583, certiorari denied, 1955, 350 U.S. 913, 76 S. Ct. 197, 100 L. Ed. 800; Bishop v. United States, 1955, 96 U.S.App.D.C. 117, 223 F.2d 582, judgment vacated and remanded, 1956, 350 U.S. 961, 76 S. Ct. 440, 100 L. Ed. 835 semble. 16 WOODBURY, Circuit Judge (dissenting). 17 I quite agree with Judge Aldrich's excellent analysis. My only disagreement is with the disposition made of the case as a result of that analysis. It seems to me that on the state of the record we ought not to find the value of the Lynn ourselves but that instead we ought to remand the case to the District Court for it, after re-reference to an assessor or not as it may see fit, to consider the evidence in the record anew in the light of our opinion, and, on such reappraisal to exercise its fact finding function again by making an amended finding of value. See reasoning of L. Hand, in Petterson Lighterage & Towing Corp. v. New York Central R. Co., 2 Cir., 1942, 126 F.2d 992, 996. Compare, however: Stuart v. Alcoa S.S. Co., 2 Cir., 1944, 143 F.2d 178, 179; Porello v. United States, 2 Cir., 1946, 153 F.2d 605, 608; The Friendship II, 5 Cir., 1943, 135 F.2d 520, 521. See particularly Menefee v. W. R. Chamberlin Co., 9 Cir., 1950, 183 F.2d 720. But note Bone, J., dissenting, Id., 183 F.2d at page 723.

01-03-2023

08-23-2011

https://www.courtlistener.com/api/rest/v3/opinions/813052/

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT DRENDOLYN SIMS, No. 11-55401 Plaintiff - Appellant, D.C. No. v. 3:09-cv-01356- JM-WMC MIKE STANTON , Defendant - Appellee. OPINION Appeal from the United States District Court for the Southern District of California Jeffrey T. Miller, Senior District Judge, Presiding Argued and Submitted August 8, 2012–Pasadena, California Filed December 3, 2012 Before: Stephen Reinhardt, Barry G. Silverman, and Kim McLane Wardlaw, Circuit Judges. Opinion by Judge Reinhardt 2 SIMS V . STANTON SUMMARY* Civil Rights The panel reversed the district court’s summary judgment granting qualified immunity to a police officer and remanded in this action brought under 42 U.S.C. § 1983. Plaintiff suffered serious injuries as a result of the officer’s act of kicking down the front gate of her yard. She alleged that the officer violated her Fourth Amendment rights by his warrantless entry into the curtilage of her house during his pursuit of a suspect, who had committed at most a misdemeanor offense. The panel first held that plaintiff’s yard was curtilage entitled to the same Fourth Amendment protections as her home. The panel held that the officer’s actions amounted to an unconstitutional search and that the law at the time of the incident would have placed a reasonable officer on notice that his warrantless entry into the curtilage of a home constituted an unconstitutional search, which could not be excused in this case under the exigency or emergency exception to the warrant requirement. COUNSEL L. Marcel Stewart, San Diego, California, for Petitioner. Peter J. Ferguson, Santa Ana, California, for Respondent. * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. SIMS V . STANTON 3 OPINION REINHARDT, Circuit Judge: Drendolyn Sims suffered serious injuries as a result of officer Mike Stanton’s act of kicking down the front gate to her small, enclosed yard. Sims was standing directly behind the gate when it swung open, knocking her down and rendering her temporarily unconscious, or at least incoherent, causing a laceration on her forehead and an injury to her shoulder. Stanton unreasonably believed that his warrantless entry into the curtilage of Sims’s home was justified by his pursuit of Nicholas Patrick, who had committed at most a misdemeanor offense by failing to stop for questioning in response to a police order. Sims filed an action in district court under 42 U.S.C. § 1983, alleging that her Fourth Amendment rights had been violated by Stanton’s warrantless entry into her front yard and seeking damages for her injuries. The district court found that Stanton was entitled to qualified immunity and granted his motion for summary judgment. Reviewing that decision de novo, we must determine whether Stanton violated Sims’s Fourth Amendment right to be free from a warrantless entry into her front yard and whether the contours of that right were sufficiently established at the time that a reasonable officer would have been aware that his conduct was unconstitutional. We conclude that Stanton’s actions amounted to an unconstitutional search. We hold that the law at the time of the incident would have placed a reasonable officer on notice that his warrantless entry into the curtilage of a home constituted an unconstitutional search, which could not be excused under the exigency or emergency exception to the 4 SIMS V . STANTON warrant requirement. Stanton was, therefore, not entitled to qualified immunity. BACKGROUND1 On May 27, 2008 at approximately one o’clock in the morning, Officer Stanton and his partner responded to a radio call regarding an “unknown disturbance” in the street involving a baseball bat in La Mesa, California. The officers were driving a marked car and wearing police uniforms. Stanton was familiar with the area as one “known for violence associated with the area gangs,” and he “was also aware of gang members being armed with weapons such as guns and knives.” Still, when the officers arrived, they observed nothing unusual. The officers noticed three men walking in the street. Upon seeing the car, two of the men turned into a nearby apartment complex. The third, who turned out to be Patrick, crossed the street about twenty-five yards in front of the police car and walked quickly toward Sims’s home, which was located in the same direction as the police car. Neither officer saw Patrick with a baseball bat or any other possible weapon. The officers had no information that would link Patrick to the disturbance. Nor did the officers observe any conduct on Patrick’s part that would suggest that he had been 1 Although we review a district court’s grant of summary judgment de novo, evaluating the facts in the light most favorable to the nonmoving party, most of the material facts in this case are not in dispute. Thus, we set forth the undisputed facts and note where a disputed fact affects the legal analysis that follows. See LaLonde v. Cnty. of Riverside, 204 F.3d 947, 950 n.3 (9th Cir. 2000). SIMS V . STANTON 5 involved in the disturbance that they had been called to investigate. According to Stanton’s version of the facts, he exited the patrol car, announced “police,” and ordered Patrick to stop multiple times in a voice that was loud enough that all persons in the area would have heard his commands. Whether Patrick heard the commands or not, he did not stop. Instead, he entered the gate to Sims’s front yard and the gate shut behind him. Believing that Patrick was disobeying his lawful order (a misdemeanor offense under California Penal Code § 1482) and “fearing for [his] safety,” Stanton made a “split-second decision” to kick open the gate to Sims’s yard. Sims was standing behind the gate when it flew open, striking her and sending her into the front stairs. She was temporarily knocked unconscious, or at least became incoherent, as a result of the blow and sustained a laceration on her forehead, an injury to her shoulder, and was taken to the hospital. The gate Stanton kicked open is part of a fence made of “sturdy, solid wood” that is more than six feet tall, enclosing the front yard to Sims’s home. Sims lives in a manufactured home with a small front yard that abuts the house. She states that she “enjoy[s] a high level of privacy in [her] front yard.” Her fence, which was built for “privacy and protection,” ensures that her outdoor space is “completely secluded” and cannot be seen by someone standing outside the gate. Additionally, the front yard is used for talking with friends, 2 California Penal Code § 148 makes “willfully resist[ing], delay[ing], or obstruct[ing]” an officer “in the discharge or attempt to discharge any duty of his or her office” a misdemeanor offense punishable by up to one year and by a fine of up to $1000. § 148; see also In re M.M., 54 Cal. 4th 530, 533 (2012) (§ 148 is a misdemeanor offense). 6 SIMS V . STANTON as Sims was doing on the evening of the incident, and for storing her wheelchair, which she keeps parked inside the fence. Sims’s complaint against Stanton alleged unconstitutional arrest, search, excessive force, and additional state law tort claims. Stanton moved for summary judgment, which the district court granted, finding that (1) Stanton did not use excessive force; (2) exigency and a lesser expectation of privacy in the curtilage surrounding Sims’s home justified the warrantless entry; and (3) no clearly established law put Stanton on notice that his conduct was unconstitutional and therefore he was entitled to qualified immunity. Sims appeals the district court’s decision on her unconstitutional search claim and the grant of qualified immunity to Stanton.3 DISCUSSION The Fourth Amendment prohibits officers from entering an enclosed front yard—curtilage—without a warrant, to the same extent that it prohibits them from entering a home. See United States v. Perea-Rey, 680 F.3d 1179, 1184 (9th Cir. 2012). Thus, we first must determine whether Sims’s front yard was curtilage. If so, Stanton’s warrantless entry is unconstitutional unless it meets the requirements for an exception to the warrant rule. We next review the facts presented to the district court to determine whether Stanton’s warrantless entry meets either 3 After dismissing Sims’s federal claims, the district court declined to exercise supplemental jurisdiction over her state law claims and dismissed them without prejudice. Because we reverse the dismissal of Sims’s federal claims, we also reverse the dismissal of Sims’s state law claims. SIMS V . STANTON 7 the exigency or emergency exceptions to the warrant requirement. Hopkins v. Bonvicino, 573 F.3d 752, 763 (9th Cir. 2009). Because both exceptions turn on the seriousness of the underlying offense, we ultimately conclude that Stanton’s warrantless entry cannot be justified by his pursuit of Patrick, who committed, at most, only a misdemeanor. See United States v. Johnson, 256 F.3d 895, 908 n.6 (9th Cir. 2001) (en banc) (exigency exception); LaLonde, 204 F.3d at 958 n.16 (emergency exception). Curtilage Before analyzing the exceptions to the warrant requirement, it must be determined whether Sims’s yard is curtilage and therefore entitled to the same Fourth Amendment protections as her home. It is well-established that “[t]he presumptive protection accorded people at home extends to outdoor areas traditionally known as ‘curtilage’—areas that, like the inside of a house, harbor the intimate activity associated with the sanctity of a person’s home and the privacies of life.” United States v. Struckman, 603 F.3d 731, 738 (9th Cir. 2010) (quoting United States v. Dunn, 480 U.S. 294, 300 (1987)) (internal quotations and alterations omitted). “Because the curtilage is part of the home, searches and seizures in the curtilage without a warrant are also presumptively unreasonable.” Perea-Rey, 680 F.3d at 1184 (citing Oliver v. United States, 466 U.S. 170, 180 (1984)). The district court recognized that Sims’s front yard was curtilage, but erred in finding that its status as curtilage entitled Sims to a “lesser expectation of privacy . . . as opposed to the home itself.” 8 SIMS V . STANTON Sims’s small, enclosed, residential yard is quintessential curtilage. “[A] small, enclosed yard adjacent to a home in a residential neighborhood [] is unquestionably such a ‘clearly marked’ area ‘to which the activity of home life extends,’ and so is ‘curtilage’ subject to the Fourth Amendment protection.” Struckman, 603 F.3d at 739 (quoting Oliver, 466 U.S. at 182 n.12). Because Sims’s front yard obviously meets the definition of curtilage, the district court did not need to analyze it under the factors announced by the Supreme Court in United States v. Dunn. 480 U.S. at 294. These factors serve as “useful analytical tools” to ensure that Fourth Amendment protections extend to areas that are much further from the house but that still should be “treated as the home itself.” Id. at 300–01. Here, however, the factors are unnecessary because it is “easily understood from our daily experience” that Sims’s yard is curtilage.4 Oliver, 466 U.S. at 182 n.12; see also Struckman, 603 F.3d at 739. 4 Of course, applying the Dunn factors to Sims’s yard leads to the same result. The first factor, “the proximity of the area claimed to be curtilage to the home,” id. at 301, is met because her front yard is adjacent to her home and extends only a short distance. The second factor, whether the area is “included within an enclosure surrounding the home,” id., is met because a tall wooden fence encloses both her front yard and her home. Sims meets the third factor, “the nature of the uses to which the area is put,” id., because Sims stated that she enjoyed a high degree of privacy in her front yard, that she used it to store her wheelchair, and that she entertains guests there. The final factor, “steps taken by the resident to protect the area from observation by people passing by,” id., is met because the gate that Stanton kicked in was a “sturdy, solid wood,” six- foot-high fence with narrow slats between the planks of wood. Stanton’s argument that because he could see the front door it was not entitled to the same expectation of privacy is beside the point. The warrantless entry was to Sims’s yard, which Stanton obviously could not see prior to kicking in the front gate; if he could have, he would have known that Sims was standing behind it. SIMS V . STANTON 9 Because curtilage is protected to the same degree as the home, the district court erred in applying a “totality of the circumstances” balancing inquiry that justified the warrantless intrusion based in part on a “lesser expectation of privacy” in one’s front yard as compared to one’s home. We hold that the Fourth Amendment protects Sims’s yard, a mere extension of the home itself, from warrantless search. Perea- Rey, 680 F.3d at 1184. Stanton’s warrantless entry, therefore, was presumptively unconstitutional. Struckman, 603 F.3d at 743. Exceptions To The Warrant Requirement When the warrantless search is to home or curtilage, we recognize two exceptions to the warrant requirement: exigency and emergency. Hopkins, 573 F.3d at 763. “These exceptions are narrow and their boundaries are rigorously guarded to prevent any expansion that would unduly interfere with the sanctity of the home.” Id. at 763. The exigency exception assists officers in the performance of their law enforcement function. It permits police to commit a warrantless entry where “necessary to prevent . . . the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.” Id. at 763 (citing United States v. McConney, 728 F.2d 1195, 1199 (9th Cir. 1984) (en banc)). The emergency exception, in contrast, seeks to ensure that officers can carry out their duties safely while at the same time ensuring the safety of members of the public. It applies when officers “have an objectively reasonable basis for concluding that there is an immediate need to protect others or themselves from serious harm.” Id. at 764 (citing United States v. Snipe, 515 F.3d 947, 951–52 (9th Cir. 2008)) (internal emphasis omitted). 10 SIMS V . STANTON Under either exception, our review of whether the circumstances justified the warrantless entry considers the seriousness, or lack thereof, of the underlying offense. Johnson, 256 F.3d at 908 n.6 (exigency exception); LaLonde, 204 F.3d at 958 n.16 (emergency exception). The district court erroneously granted summary judgment to Stanton, despite clear precedent that precludes the finding of an exception to the warrant requirement when the circumstances turn on only a misdemeanor offense. Johnson, 256 F.3d at 908 n.6; LaLonde, 204 F.3d at 958 n.16. Exigency Exception Stanton attempts to show that exigent circumstances justified his warrantless entry, specifically that Patrick would have escaped arrest. The burden to show exigent circumstances rests on the officer, who must “point[] to some real immediate and serious consequences if he postponed action to get a warrant.” Welsh v. Wisconsin, 466 U.S. 740, 749–50, 751 (1984) (internal quotation marks and citation omitted). We have recognized circumstances that justify a warrantless entry to prevent “the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.” Hopkins, 573 F.3d at 763 (quoting McConney, 728 F.2d at 1199). Not every law enforcement action, however, justifies an exception to the warrant requirement. The recognition that sometimes law enforcement needs take precedence must be balanced against the Fourth Amendment protections against unreasonable searches. We have given officers clear guidance on how to approach the balance between “a person’s right to be free from warrantless intrusions” and SIMS V . STANTON 11 “law enforcement’s interest in apprehending a fleeing suspect.” Johnson, 256 F.3d at 908 n.6. We have said, “[i]n situations where an officer is truly in hot pursuit and the underlying offense is a felony, the Fourth Amendment usually yields,” but “in situations where the underlying offense is only a misdemeanor, law enforcement must yield to the Fourth Amendment in all but the ‘rarest’ cases.” Id. (citations omitted). Stanton offers nothing to show why in this case the Fourth Amendment should yield. Stanton does not argue that this case involves probable cause for any crime more serious than the single misdemeanor of disobeying an officer’s order to stop.5 We do not doubt that Stanton believed that Patrick might escape arrest if he did not follow him into Sims’s front yard. The possible escape of a fleeing misdemeanant, assuming Patrick had been fleeing, is not, however, a serious enough consequence to justify a warrantless entry. The precedent relied on by the district court, United States v. Santana, which held that a “suspect may not defeat an arrest which has been set in motion in a public place . . . by the expedient of escaping to a private place,” involved a fleeing felon. 427 U.S. 38, 43 (1976). Since Santana, the Supreme Court and our court have made it clear that the exigency exception to the warrant requirement generally applies only to a fleeing felon not to a fleeing misdemeanant. Welsh, 466 U.S. at 750; Johnson, 256 F.3d at 908 n.6. The district court erroneously applied this precedent. 5 W hether Stanton had probable cause to believe that Patrick had violated California Penal Code § 148 is fiercely debated by the parties. W e do not need to decide this question, because, even if Stanton had probable cause to believe that Patrick violated § 148, that violation would at most be a misdemeanor offense. 12 SIMS V . STANTON The warrantless intrusion is particularly egregious in this case because Stanton violated the Fourth Amendment rights of an uninvolved person, Sims. See Johnson, 256 F.3d at 909. Stanton could have knocked on the door and asked Sims for permission to enter and speak with, or arrest, Patrick. Knocking on the door would still not have justified a warrantless entry, but at the very least, with the warning of a knock, Sims might have been able to move away from behind the gate before Stanton kicked it open. In any event, the record before us does not reveal any “rare” circumstances that would call for an exception to the rule that “where the underlying offense is only a misdemeanor, law enforcement must yield to the Fourth Amendment.” Johnson, 256 F.3d at 908 n.6. Emergency Exception Stanton asserts that he pursued Patrick into Sims’s curtilage because he feared for his own safety. To establish that the circumstances gave rise to an emergency situation, Stanton must show an “objectively reasonable basis for fearing that violence was imminent.” Ryburn v. Huff, 132 S. Ct. 987, 992 (2012). As in the case of an exigency exception, an “officer[’s] assertion of a potential threat to [his] safety must be viewed in the context of the underlying offense.” LaLonde, 204 F.3d at 958 n.16.6 Where the threat is to the officer’s safety, we observe that “[o]ne suspected of committing a minor offense would not likely resort to 6 Stanton attempts to distinguish LaLonde on the ground that it involved the warrantless entry into a home, rather than a front yard. This distinction is meaningless because the yard is curtilage and therefore entitled to the same protection as the home under the Fourth Amendment. See discussion supra, pp. 7–9. SIMS V . STANTON 13 desperate measures to avoid arrest and prosecution.” Id. (quoting United States v. George, 883 F.2d 1407, 1413 n.3 (9th Cir. 1989)). Reviewing the constitutionality of the warrantless entry de novo, we conclude that the record does not support a finding of an emergency after Patrick entered Sims’s fenced yard. Stanton was called to investigate a disturbance involving a baseball bat at one o’clock in the morning. Although Stanton knew the area as one associated with gangs whose members may be armed, he had no information tying Patrick to the reported disturbance. He did not see Patrick carrying a baseball bat or any other weapon.7 The only facts in the record suggesting suspicious behavior were that Stanton observed Patrick “cross the street and quickly walk/run toward” Sims’s home, and that after he ordered Patrick to stop, Patrick “looked directly at [Stanton], ignored [his] lawful orders and quickly went through a front gate.” Once Patrick fled into Sims’s front yard, without signaling in any way that he would engage Stanton, return with a weapon, or otherwise threaten him with violence, there was simply no evidence of imminent danger to the officer or anyone else. The circumstances of this case stand in stark contrast to the facts that supported the officer’s reasonable belief in Ryburn that danger could be imminent. In Ryburn, four officers went to high school student Vincent Huff’s home to investigate threats that he was going to “shoot up” the school. 132 S. Ct. at 988. The officers testified to facts that were specific to Mrs. Huff and her son that “led them to be concerned for their own safety and for the safety of other 7 W hen Patrick was eventually stopped, he had no weapon on his person. 14 SIMS V . STANTON persons in the residence.” Id. at 990. In addition to the reported threat of a school shooting, these facts included: the unusual behavior of the parents in not answering the door or the telephone; the fact that Mrs. Huff did not inquire about the reason for their visit or express concern that they were investigating her son; the fact that she hung up the telephone on the officer; the fact that she refused to tell them whether there were guns in the house; and finally, the fact that she ran back into the house while being questioned. Id. Based on the suspected presence of weapons in the home of a teenager who had threatened to commit a violent felony by the use of deadly weapons, those officers had an “objectively reasonable basis” to fear that “family members or the officers themselves were in danger.” Id. at 990. Here, Stanton attempts to justify his fear that Patrick threatened his safety, by pointing to the report of an incident involving a bat and his belief that Sims’s neighborhood was a high-crime area. However, none of the factors: Stanton’s belief that Patrick committed a misdemeanor by failing to heed his order, the original call to the police regarding the disturbance, the presence of gangs and the crime rate in the neighborhood, nor a combination of all three is sufficient to constitute an “emergency” that justified breaking down a closed gate and entering without a warrant. Stanton described Sims’s neighborhood as “an area known for violence associated with the area gangs,” and stated that he “was also aware of gang members being armed with weapons such as guns and knives.” Based on the facts SIMS V . STANTON 15 which he knew about the neighborhood and the report of a disturbance in the street, Stanton speculates that Patrick may have been carrying a concealed weapon, that he may have gone into Sims’s home in order to arm himself and then return to the street, or that someone armed inside Sims’s home might have attempted to interfere with Patrick’s arrest. Without some particularized facts relating to Patrick, Stanton’s inferences are too generalized and speculative to provide an “objectively reasonable basis” for fearing that violence might be imminent, see Ryburn, 132 S. Ct. at 992, and nothing in the record reveals an emergency that justifies the warrantless entry of a home’s curtilage in pursuit of a misdemeanant. A contrary conclusion would undermine Fourth Amendment protections for individuals residing, often not by choice, in poor neighborhoods where crime is more prevalent than in wealthy communities. As we have said in the context of drawing inferences from neighborhood characteristics to support reasonable suspicion of criminal activity, “[w]e must be particularly careful to ensure that a ‘high crime’ area factor is not used with respect to entire neighborhoods or communities in which members of minority groups regularly go about their daily business.” United States v. Montero- Camargo, 208 F.3d 1122, 1138 (9th Cir. 2000). We do not imply that general factors, such as the time of day, the nature of the call, or the officers’ prior experience with gangs and violence in the neighborhood, are of no relevance to an officer’s fear that violence may occur. To justify an emergency exception to the warrant requirement, however, these factors must be combined with particularized evidence that the person being pursued or the home being investigated poses a threat to the officer’s or the public’s safety. This was not the case here: Patrick entered Sims’s home, where he was 16 SIMS V . STANTON apparently welcome, and gave Stanton no reason to believe that his or anyone else’s safety would be in danger. In sum, Stanton’s “assertion of a potential threat to [his] safety,” based on generalized assumptions concerning the neighborhood or its residents, rather than specific facts relating to the individuals involved, did not justify an exception to the warrant requirement when viewed “in the context of the underlying offense,” at most a misdemeanor. LaLonde, 204 F.3d at 958 n.16. Qualified Immunity In a claim for civil damages under § 1983, to avoid the bar of qualified immunity, the plaintiff must show that the officer violated a constitutional right and that the right was “clearly established” at the time of the occurrence. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The determination whether a right was clearly established “must be undertaken in light of the specific context of the case, not as a broad general proposition.” Saucier v. Katz, 533 U.S. 194, 201 (2001). The individual circumstances of the case do not, however, provide a basis for qualified immunity if “the unlawfulness was apparent in light of preexisting law.” Jensen v. City of Oxnard, 145 F.3d 1078, 1085 (9th Cir. 1998) (internal citation omitted). “Although earlier cases involving ‘fundamentally similar’ facts can provide especially strong support for a conclusion that the law is clearly established, they are not necessary to such a finding.” Hope v. Pelzer, 536 U.S. 730, 741 (2002). The Supreme Court has made clear that “officials can still be on notice that their conduct violates established law even in novel factual circumstances.” Id. Therefore, the “salient question” is SIMS V . STANTON 17 “whether the state of the law” in 2008 gave Stanton “fair warning” that his warrantless entry was unconstitutional. Id. Contrary to the district court’s findings, a reasonable officer should have known that the warrantless entry into Sims’s front yard violated the Fourth Amendment because clearly established law afforded notice that Sims’s front yard was curtilage and, was therefore, protected to the same extent as her home. Established law also afforded notice that a warrantless entry into a home cannot be justified by pursuit of a suspected misdemeanant except in the rarest of circumstances. Since well before the incident occurred in 2008, Supreme Court law and the precedent of this court had established that, on the basis of the record before us, Stanton’s conduct was clearly unconstitutional. A front yard has been considered curtilage since 1984 when the Supreme Court decided Oliver v. United States. 466 U.S. at 170. A front yard enclosed by a six-foot-tall, wooden fence, in which private items are stored and social interactions take place is the paradigmatic example of curtilage and is both “clearly marked” and “easily understood.” Id. at 182 n.12. Thus, Stanton should have known that his warrantless entry was presumptively unconstitutional. This presumption may be overcome only by circumstances justifying either an exigency or emergency exception. Stanton attempts to show exigent circumstances by pointing to the risk that Patrick might escape. It should have been clear to Stanton, however, from Supreme Court and Ninth Circuit decisions that law enforcement actions involving a misdemeanor offense will rarely, if ever, justify a warrantless entry. Welsh, 466 U.S. at 750 (clearly 18 SIMS V . STANTON established since 1984); Johnson, 256 F.3d at 908 (clearly established since 2001). That Welsh leaves open the possibility for a “rare” exception to this rule does not mean that the rule was not clearly established at the time and does not change our qualified immunity analysis. Here, nothing in the record suggests that this case was “rare” in any respect. Stanton also contends that the emergency exception justified his warrantless entry by asserting that he feared for his safety. The circumstances of this case belie the reasonableness of that fear. The non-serious nature of the underlying offense, failure to heed an officer’s command, precludes us from finding, on the record before us, that an emergency exception was applicable. LaLonde, 204 F.3d at 958 (clearly established since 2000). So, too, does the lack of any reasonable basis for any specific concern that the individuals involved were likely to engage in any act of violence. Accordingly, Stanton is not entitled to qualified immunity. For the reasons stated above, the district court’s order granting summary judgment in favor of the defendant is REVERSED and REMANDED.

01-03-2023

12-04-2012

https://www.courtlistener.com/api/rest/v3/opinions/2278657/

4 S.W.3d 1 (1999) David Walter HUGHES, Appellant, v. The STATE of Texas. No. 628-98. Court of Criminal Appeals of Texas. June 16, 1999. *2 Ralph H. Walton, Jr., Granbury, for appellant. Richard L. Hattox, DA, Granbury, Matthew Paul, State's Atty., Austin, for the State. OPINION HOLLAND, J., delivered the opinion of the Court, in which MEYERS, MANSFIELD, PRICE, WOMACK, KEASLER, and JOHNSON JJ., joined. David Walter Hughes was convicted of indecency with a child by contact. Tex. Penal Code § 21.11. The jury assessed punishment at fifteen years confinement and a $5,000 fine. The Second Court of Appeals affirmed the conviction in an unpublished opinion. Hughes v. State, No. 2-97-425-CR (Tex.App.-Fort Worth March 12, 1998) (not designated for publication). We granted discretionary review to determine whether the Court of Appeals erred in determining the State properly impeached its own witness under Rule 607.[1] I. Factual Background While investigating a 911 call to the residence of K.P., Officer Russell Ford was approached by K.P.'s two daughters, nine-year-old "Jessica Ives"[2] and six-year-old J.M. After speaking with Jessica, Officer Ford notified Child Protective Services (C.P.S.) of possible sexual abuse by appellant, Jessica's step-father. The next day Susan Curlee, a C.P.S. case worker, conducted a videotaped interview with Jessica. After the interview Curlee and another C.P.S. caseworker, Marleigh Meisner, met with K.P. Appellant was subsequently indicted for indecency with a child. At a pre-trial hearing concerning Jessica's outcry, she testified the first person she told about appellant's abuse was her mother, K.P. Jessica testified she told K.P. on several occasions that appellant was "coming in [her] room and touching [her] where he wasn't suppose[d] to." Following Jessica's testimony, the State called K.P. to the stand. K.P. had charges pending against her for the offense of failure to report the abuse. The State stated it was willing to give K.P. use immunity for her testimony in the present case. The trial court agreed. The State asked K.P. a series of questions concerning statements she made to Curlee and Meisner in the CPS interview. Specifically, the State asked K.P. if she told Curlee and Meisner that Jessica had *3 reported the abuse to her. The State also asked if K.P. told them that she confronted appellant with Jessica's allegations and he admitted they were true. K.P. admitted to meeting with Curlee and Meisner, but denied making the statements. The State called Curlee to testify. Curlee testified that K.P. made the statements she denied in her testimony. Curlee testified that K.P. not only stated in the C.P.S. interview that Jessica had reported the abuse to her but that appellant had confessed when she confronted him with Jessica's allegations. Specifically, Curlee testified that K.P. told both her and Meisner that appellant admitted the allegations were true, stated he couldn't explain why he was abusing Jessica, and promised K.P. that he would stop. At appellant's trial, the State called K.P. to testify. The State again asked K.P. if she told Curlee and Meisner that appellant had confessed to sexually abusing Jessica when she confronted him. K.P. again admitted to meeting with Curlee and Meisner but denied making any statements inculpating appellant. The State then called Curlee and Meisner to impeach K.P.'s testimony. Defense counsel objected on the basis that their testimony was improper impeachment, was intended to elicit inadmissible hearsay, and was violative of Rule 403. The trial court overruled these objections and allowed the testimony on the ground that it was offered for purposes of impeaching K.P.'s testimony. As in the pretrial hearing, Curlee testified that K.P. told her in the interview that appellant had admitted to abusing Jessica. Curlee also testified that K.P. stated appellant told her that he did not know why he had abused Jessica but that he would not do it again. Curlee further testified that K.P. stated she had put a lock on Jessica's door to prevent appellant from continuing to abuse her. Meisner testified that she was present when Curlee interviewed K.P. and affirmed Curlee's testimony relating to the interview. On appeal, appellant argued the State called K.P. for the sole purpose of impeaching her with otherwise inadmissible hearsay evidence. The State responded that the impeachment evidence was admissible as substantive evidence under article 38.072 of the Texas Code of Criminal Procedure and rules 801 and 803 of the Texas Rules of Criminal Evidence. Without addressing either contention, the Second Court of Appeals held the testimony was proper impeachment evidence under Rule 607 of the Texas Rules of Criminal Evidence. Hughes, slip op. at 8. The Court of Appeals observed that "[u]nless a witness' prior inconsistent statement falls within a hearsay exception, it is admissible only for purposes of impeachment and not as substantive evidence." Relying on Miranda v. State, 813 S.W.2d 724, 735 (Tex.App.-San Antonio 1991, pet. ref'd), the Court of Appeals held the jury was presumed to have followed the trial court's instruction that the testimony regarding K.P.'s prior inconsistent statements could only be used to determine her credibility and not to determine Hughes' guilt. Hughes, op. at 6. Appellant maintains that the State's right to impeach its own witness under Rule 607 "does not extend to employment of such impeachment as a mere subterfuge to get otherwise inadmissible hearsay evidence before the jury." Pruitt v. State, 770 S.W.2d 909, 911 (Tex.App.-Fort Worth 1989, pet. ref'd); United States v. Johnson, 802 F.2d 1459, 1466 (D.C.Cir.1986). Appellant contends the State's sole purpose in calling K.P. was to impeach her and, thus, get before the jury appellant's alleged admissions of guilt which were otherwise inadmissible. The State claims it called K.P. to testify to Jessica's outcry which the evidence was admissible under article 38.072 of the Texas Code of Criminal Procedure because appellant "made no objection to any other predicate required and has made no assertion nor has argued any evidence that *4 would have made the child's statements to [K.P.] inadmissible." Tex.Code Crim. Proc. art. 38.072.[3] The State also claims it called K.P. to testify to appellant's admission of guilt which was admissible under rules 801 and 803 of the Texas Rules of Criminal Evidence. Tex.R.Crim. Evid. 801 and 803. Hence, the State contends because K.P. denied both Jessica's outcry and appellant's admission of guilt it was permissible to attack her credibility with prior inconsistent statements. II. Rule 607 Although a few courts of appeals have addressed this issue, this Court has yet to resolve the issue squarely.[4] In Barley v. State, 906 S.W.2d 27 (Tex.Crim.App.1995), the defendant claimed a witness for the State was called for the sole purpose of impeaching him to place before the jury substantive evidence which was otherwise inadmissible. Because the defendant's objection to the introduction of the impeachment evidence at trial did not comport with his complaint on appeal, this Court concluded the defendant failed to preserve error. Barley, 906 S.W.2d at 36. In a footnote, however, this Court suggested how the issue should be resolved. Specifically, this Court observed that although a showing of "surprise" or "injury" was no longer required for a party to impeach its own witness under Rule 607, there did appear to be a growing distinction among the courts as to whether the State was aware its witness would testify unfavorably. Id. at 38 n. 11. Specifically, this Court observed that in those cases where courts refused to admit prior inconsistent statements under the guise of impeachment, it was obvious the State's primary intent in calling the witness was to introduce inadmissible hearsay. Barley, 906 S.W.2d at 38 n. 11 (citing United States v. Hogan, 763 F.2d at 702 and Pruitt v. State, 770 S.W.2d at 911). In cases similar to Barley, however, where there was no clear showing that the State was aware the witness would testify unfavorably, the trend seemed to be "an analysis conducted in the context of a Rule 403 balancing approach." Barley, 906 S.W.2d at 38 n. 11. Some of the courts of appeals have interpreted the footnote in Barley as creating an exception to Rule 607 where the State is, or should be, aware that its witness will testify unfavorably.[5] An examination *5 of this evidentiary rule, however, reveals no such exception. Rule 607 permits the credibility of a witness to be attacked by any party, including the party calling the witness. Tex.R.Crim. Evid. 607. The rule abandons the traditional "voucher" rule which prohibited a party from impeaching its own witness.[6] The plain language of Rule 607 also dispenses with the surprise and injury exception to the "voucher" rule which served as a prerequisite to impeaching one's own witness.[7] Because grafting a surprise requirement would contravene the plain language of Rule 607, we decline to adopt this common-law distinction.[8] Instead, we conclude the State's knowledge that its own witness will testify unfavorably is a factor the trial court must consider when determining whether the evidence is admissible under Rule 403. Analyzing lack of surprise or injury in terms of Rule 403 is preferable not only because it comports with the plain language of Rule 607, but because it will lead to the conclusion that a trial court abuses its discretion under Rule 403 when it allows the State to admit impeachment evidence for the primary purpose of placing evidence before the jury that was otherwise inadmissible.[9] The impeachment evidence must be excluded under Rule 403's balancing test because the State profits from the witness' testimony only if the jury misuses the evidence by considering it for its truth. Consequently, any probative value the impeachment testimony may have is substantially outweighed by its prejudicial effect. With this in mind, we now turn to the *6 instant case to determine whether the trial court erred in failing to exclude the impeachment testimony under Rule 403's balancing test. III. Rule 403 Appellant claims the Court of Appeals erred in failing to hold the trial court abused its discretion under Rule 403 when it permitted the State to admit K.P.'s prior inconsistent statements for purposes of impeachment. Specifically, appellant contends because the State knew in advance that K.P. would deny having told Curlee and Meisner that appellant confessed to committing the offense alleged, the State's sole purpose for calling K.P. as a witness was to get appellant's confession before the jury. The State contends even if its primary purpose in calling K.P. was to impeach her with prior inconsistent statements, the trial court did not abuse its discretion under Rule 403 because had K.P. testified to these matters the jury could consider the evidence as substantive proof of appellant's guilt. We disagree. Relying on Rule 803, the State claims K.P.'s testimony regarding appellant's confession was admissible as a statement against interest. See Tex.R.Crim. Evid. 803(24). A statement against interest is admissible as an exception to the hearsay rule, if at the time of its making, the statement tended to subject the declarant to criminal liability such that a reasonable person would not have made the statement unless she believed it to be true and there are corroborating circumstances. Tex.R.Crim. Evid. 803(24); Burks v. State, 876 S.W.2d 877, 904-05 (Tex.Crim.App.1994). Though the State is correct that K.P.'s testimony relating to appellant's confession qualified as a statement against interest, any statements K.P. may have made to Curlee and Meisner concerning appellant's confession do not fall within the parameters of Rule 803(24) because Curlee and Meisner do not have firsthand knowledge of the confession. The State also claims that K.P.'s testimony concerning appellant's confession was admissible under Rule 801(e)(2) as an admission by party opponent. A statement qualifies as an admission by party opponent if it is offered against a party and it is the party's own statement. Tex.R.Crim. Evid. 801(e)(2). Unlike declarations against interest, this nonhearsay exception neither requires the statement be against the party's interest nor corroborated. Like declarations against interest, however, the witness testifying to the party admission must have firsthand knowledge of the party's admission; otherwise any testimony regarding the admission is hearsay. Tex.R.Crim. Evid. 801(e)(2) (now Tex.R. Evid. 801(e)(2)). Consequently, because Curlee and Meisner did not have first hand knowledge of appellant's confession the evidence was inadmissible for substantive consideration under this evidentiary rule.[10] IV. Conclusion The State claims its reasons for calling K.P. to testify were legitimate because *7 it wanted to elicit evidence relating to Jessica's outcry and appellant's confession. While these maybe legitimate reasons for calling K.P. to testify at appellant's trial, the State fails to offer this Court any explanation for why it expected K.P. to testify differently than she had at the pretrial hearing. More importantly, however, an examination of the record reveals the State elicited no favorable testimony from K.P. The lack of favorable testimony suggests the State was attempting to use K.P. prior inconsistent statements under the guise of impeachment for the primary purpose of placing before the jury evidence which was not otherwise admissible. Consequently, we conclude the State had little, if any, legitimate purpose in admitting K.P.'s prior inconsistent statements to impeach her testimony. Due to the highly prejudicial nature of this evidence we conclude any probative value it may have had was substantially outweighed by its prejudicial effect. We hold the Court of Appeals erred in failing to find the trial court abused its discretion under Rule 403 when it permitted the State to admit evidence of K.P.'s prior inconsistent statements to impeach her testimony. Having determined the trial court erred in failing to exclude the impeachment evidence under Rule 403, this cause is remanded to the Court of Appeals for it to conduct a harm analysis in the first instance. The judgment of the Court of Appeals is reversed, and the cause remanded for proceedings consistent with this opinion. KELLER, J., delivered a dissenting opinion. McCORMICK, P.J., dissented without an opinion. KELLER, J., filed this dissenting opinion. Although the statements at issue here were admitted on an impeachment theory, an appellate court must uphold a trial court's ruling on any theory of law applicable to the case. Jones v. State, 982 S.W.2d 386, 389 (Tex.Crim.App.1998); Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990). If the statements were admissible under a hearsay exception, then the trial court's decision to admit the evidence would be correct, albeit on a different theory of law than contemplated by the trial court. The Court of Appeals found that the evidence constituted proper impeachment, however, and never reached the issue of whether the evidence was admissible under a hearsay exception. The majority finds that the Court of Appeals erred in holding the evidence admissible as impeachment, and further finds that no hearsay exception applies. As a result, the majority concludes that it was error to admit the evidence. The majority remands the case for a harm analysis. While I agree that the statements at issue in the present case were not admissible under an impeachment theory,[1] I find that there is indeed an applicable hearsay exception. The statements at issue in the present case are "out of court" on two levels: 1. They constitute appellant's statements to his wife, and 2. They constitute appellant's wife's statements to the social workers. The statements do not technically fall within the "hearsay within hearsay" rule because appellant's statements are party-opponent admissions, which are defined as "not hearsay." Rule 801(e)(2)(A). Nevertheless, the problem is analytically the same as a hearsay within hearsay problem. Regarding "hearsay within hearsay" the rules provide: *8 Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules. Rule 805.[2] The testimony of the social worker must be justified on two levels: (1) as to appellant's statements, and (2) as to the wife's statements. Because appellant's statements to his wife are clearly party-opponent admissions, which are defined as not hearsay under the rules, the first level may be easily dispensed with. The applicable rule provides: "A statement is not hearsay if... [t]he statement is offered against a party and is his own statement." Rule 801(e)(2)(A). Had appellant's wife testified in court about appellant's statements, those statements would have been admissible as party-opponent admissions. The next question is whether the social worker could testify about the wife's out of court statements. The wife's statements fall within a hearsay exception—statements against interest. The rules provide that statements that tend to subject the declarant to criminal liability are admissible so long as corroborating circumstances clearly indicate the trustworthiness of the statements: A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, or to make him an object of hatred, ridicule, or disgrace, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. Rule 803(24). In the present case, the wife's statements tended to subject her to liability for failing to report child abuse, a Class B misdemeanor. See Texas Family Code § 261.109.[3] The wife's statements indicated that appellant's abuse of the child had been continuing and that the abuse occurred multiple times after appellant promised his wife that he would stop. By acknowledging that she had been aware of continuing abuse, she subjected herself to liability for not reporting that abuse. And in fact, appellant's wife was charged with that offense at the time the trial court gave her "use immunity" in exchange for her testimony at appellant's trial. The majority contends that, while general statements by the wife to social workers concerning her knowledge of abuse qualify as statements against interest, her statements regarding appellant's admissions of guilt do not. However, the fact that appellant confessed his guilt to his wife shows his wife's knowledge of the abuse (because he confessed it to her), and that knowledge is incriminating because she failed to report what she had learned. The record also shows corroborating circumstances. The social worker testified that the wife was not in custody and that her statements were voluntarily given. Moreover, the social worker had previously interviewed the children, and the wife's testimony was consistent with the children's allegations. See Green v. State, 840 S.W.2d 394, 412 (Tex.Crim.App.1992), cert. denied, 507 U.S. 1020, 113 S. Ct. 1819, 123 L.Ed.2d 449(1993)(other witnesses identified the defendant at the time of the murder and only defendant's fingerprints were on the murder weapon). That the trial court subsequently granted the wife immunity does not alter the *9 above analysis. The wife's statements, at the time they were made, subjected her to criminal liability. I would affirm the judgment of the Court of Appeals. I respectfully dissent. NOTES [1] Effective March 1, 1998, the Texas Rules of Criminal Evidence and Texas Rules of Civil Evidence were merged to form the Texas Rules of Evidence. The Rules of Evidence referred to in this opinion are substantially the same as their predecessors in the Rules of Criminal Evidence. Hence, the scope and application of the new rules would be the same as the old ones. Nevertheless, because this case was tried before the effective date of the new rules, we will apply the former Texas Rules of Criminal Evidence. [2] "Jessica Ives" was the pseudonym used for the complainant at trial. [3] Article 38.072 provides for the admissibility of hearsay testimony of a child abuse victim, age twelve years or younger, if it was the first statement made about the abuse by the child to a person 18 years of age or older and, on or before the 14th day before the date the proceeding began. Tex.Code Crim. Pro. art. 38.072; Long v. State, 800 S.W.2d 545, 547 (Tex.Crim.App.1990). [4] See e.g, Braggs v. State, 951 S.W.2d 877 (Tex.App.-Texarkana 1997, pet. ref'd); Zule v. State, 802 S.W.2d 28 (Tex.App.-Corpus Christi 1990, pet. ref'd); Pruitt v. State, 770 S.W.2d 909 (Tex.App.-Fort Worth 1989, pet. ref'd); Miranda v. State, 813 S.W.2d 724 (Tex. App.-San Antonio 1991, pet. ref'd). A number of United States Courts of Appeals have addressed this same question in connection with Federal Rule 607 which serves as the pattern for our state rule. These courts have unanimously held that "impeachment by prior inconsistent statement may not be permitted where employed as a mere subterfuge to get before the jury evidence not otherwise admissible." Whitehurst v. Wright, 592 F.2d 834, 839 (5th Cir.1979) (quoting United States v. Morlang, 531 F.2d 183, 190 (4 th Cir.1975)); United States v. Johnson, 802 F.2d 1459, 1466 (D.C.Cir.1986); Accord United States v. Peterman, 841 F.2d 1474, 1479 (10th Cir.1988), cert. denied, 488 U.S. 1004, 109 S. Ct. 783, 102 L. Ed. 2d 774 (1989); United States v. Frappier, 807 F.2d 257, 259 (1 st Cir.1986), cert. denied, 481 U.S. 1006, 107 S. Ct. 1629, 95 L. Ed. 2d 203 (1987); United States v. Sebetich, 776 F.2d 412, 429 (3rd Cir.1985); United States v. Crouch, 731 F.2d 621, 624 (9 th Cir.1984), cert. denied, 469 U.S. 1105, 105 S. Ct. 778, 83 L. Ed. 2d 773 (1985); United States v. Webster, 734 F.2d 1191, 1192 (7th Cir.1984); United States v. Fay, 668 F.2d 375, 379 (8 th Cir.1981); United States v. Miller, 664 F.2d 94, 97 (5th Cir.1981); cert. denied, 459 U.S. 854, 103 S. Ct. 121, 74 L. Ed. 2d 106 (1982); United States v. DeLillo, 620 F.2d 939, 946 (2d Cir.), cert. denied, 449 U.S. 835, 101 S. Ct. 108, 66 L. Ed. 2d 41 (1980). [5] See Braggs v. State, 951 S.W.2d 877, 883 (Tex.App.-Texarkana 1997, pet. ref'd). [6] Rule 607 eliminated the policy behind the voucher rule that a party "vouched" for its witnesses. See Russeau v. State, 785 S.W.2d 387, 390 (Tex.Crim.App.1990) (quoting Advisory Committee's Note to Federal Rule 607: "The traditional rule against impeaching one's own witness is abandoned as based on false premises. A party does not hold out his witness (sic) as worthy of belief, since he rarely has a free choice in selecting them."); see also Chambers v. Mississippi, 410 U.S. 284, 296, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973) ("Whatever validity the `voucher rule' may once have enjoyed and apart from whatever usefulness it retains today in the civil trial process, it bears little present relationship to the realities of the criminal process."). [7] As an exception to the "voucher" rule, a party was permitted to impeach its own witness when surprised and injured by the witness' testimony. See Act of June 18, 1966, 59 th Leg., R.S., ch. 722, § 1, 1965 Tex. Gen. Laws 317, 470, codified as Vernons's Ann.Code.Crim. Proc. Art. 38.28 (repealed effective Sept. 1, 1986). See e.g., Goodman v. State, 665 S.W.2d 788 (Tex.Crim.App.1984); Puckett v. State, 640 S.W.2d 284 (Tex.Crim.App.1982). The surprise requirement was introduced into the Code of Criminal Procedure provision which permitted impeachment of one's own witness when that witness' testimony injured the calling party. Pelton v. State, 167 Tex. Crim. 649, 322 S.W.2d 529 (1959). The exception prevented parties from calling witnesses who they knew would testify unfavorably for the sole purpose of getting the witness' prior inconsistent statement before the jury. See e.g., Lewis v. State, 593 S.W.2d 704, 706 (Tex.Crim.App.1980). [8] Although the reasoning varies, almost all the federal courts have refused to graft a rigid surprise requirement before a party can impeach its own witness. See e.g., United States v. Hogan, 763 F.2d 697, 702 (5th Cir.1985), modified on other grounds, 771 F.2d 82 (5th Cir.1985), aff'd in part, rev'd in part, 779 F.2d 296 (5th Cir.1986); Webster, supra, at 1193 (7th Cir.1984); DeLillo, supra, at 946-47. [9] See Miranda v. State, 813 S.W.2d 724 (Tex.App.-San Antonio 1991, pet. ref'd) (quoting Whitehurst v. Wright, 592 F.2d 834, 839 (5 th Cir.1979) for proposition that application of Rule 403's balancing test would require that "impeachment by prior inconsistent statement may not be permitted where employed as a mere subterfuge to get before the jury evidence not otherwise admissible"). In her dissenting opinion, Judge Keller suggests Rule 403 is inapplicable because the State failed to elicit substantive evidence from K.P. and, thus, could not impeach her under Rule 607. Slip op. at n. 1. The plain language of Rule 607 provides "[t]he credibility of a witness may be attacked by any party, including the party calling the witness." Tex.R.Crim. Evid. 607 (emphasis added). Rather than graft the predicate suggested by Judge Keller onto Rule 607, we find the preferable approach for examining this issue to be Rule 403's balancing test because it both comports with the plain language of Rule 607 and leads to a conclusion that admitting evidence under the guise of impeachment is impermissible. [10] In her dissenting opinion, Judge Keller contends although the State could not proffer K.P.'s statements to Curlee and Meisner under the theory of impeachment, the trial court did not err in admitting the evidence because it was admissible under the statement against interest exception to the hearsay rule. Op. at 3. That is, Judge Keller insists Curlee and Meisner could testify regarding K.P.'s statements because they "tended to subject her to liability for failing to report child abuse, a Class B misdemeanor." Id. Although any statements K.P. may have made to Curlee and Meisner concerning the fact that she was aware that Jessica had been sexually abused but failed to report the abuse to authorities qualify as statements against interest, her statements regarding appellant's alleged admission of guilt do not. Instead, these statements are against appellant's interest. Consequently, Curlee and Meisner's testimony regarding K.P.'s statements to them that appellant had allegedly admitted his guilt to her is inadmissible hearsay. See Tex.R.Crim. Evid. 801(e)(2) and 803(24). [1] But I would so hold for different reasons than those announced by the majority. A witness' mere denial that she heard another person make an incriminating statement does not, on its own, constitute substantive evidence (having no tendency to prove a fact of consequence), and hence, cannot supply a predicate for impeachment. [2] All references to rules are to the Texas Rules of Criminal Evidence in effect at the time of trial unless otherwise specified. [3] The offense provides: "A person commits an offense if the person has cause to believe that a child's physical or mental health or welfare has been or may be adversely affected by abuse or neglect and knowingly fails to report as provided in this chapter." Texas Family Code § 261.109(a).

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/794328/

447 F.3d 1067 UNITED STATES of America, Plaintiff-Appellee,v.Alexander "Alex" WHITE PLUME; Percy White Plume, their agents, servants, assigns, attorneys, and all others acting in concert with the named defendants, Defendants-Appellants,Tierra Madre, LLC, a Delaware limited liability company; Madison Hemp and Flax Company 1806, Inc., a Kentucky corporation, Intervenor Defendant.Owe Aku Tiospaye; Indigenous Law Institute; Institute for Cultural Ecology; Oglala Sioux Tribe; The Hemp Industries Association; Vote Hemp, Amici on behalf of Appellants.United States of America, Plaintiff-Appellee,v.Alexander "Alex" White Plume; Percy White Plume, their agents, servants, assigns, attorneys, and all others acting in concert with the named defendants, Defendants,Tierra Madre, LLC, a Delaware limited liability company; Madison Hemp and Flax Company 1806, Inc., a Kentucky corporation, Intervenor Defendant-Appellants.Owe Aku Tiospaye; Indigenous Law Institute; Institute for Cultural Ecology; Oglala Sioux Tribe; The Hemp Industries Association; Vote Hemp, Amici on behalf of Appellants. No. 05-1654. No. 05-1656. United States Court of Appeals, Eighth Circuit. Submitted: December 12, 2005. Filed: May 17, 2006. COPYRIGHT MATERIAL OMITTED Bruce H. Ellison, argued, Rapid City, SD, for appellant White Plume. David C. Frankel, argued, San Francisco, CA, for Tierra Madre. Mark E. Salter, argued, Asst U.S. Attorney, Sioux Falls, SD, for appellee. Before BYE, BEAM, and GRUENDER, Circuit Judges. BEAM, Circuit Judge. 1 Alex and Percy White Plume, members of the Oglala Sioux Tribe (Tribe) on the Pine Ridge Indian Reservation, and Tierra Madre, LLC and Madison Hemp and Flax Company 1806, Inc. (the Companies), (collectively, "Appellants") appeal the district court's1 grant of summary judgment in favor of the United States. We affirm. I. BACKGROUND 2 In 1998, the Tribe Council passed tribal ordinance number 98-27 which amended the Oglala Sioux Tribal Penal Code, Title 9, Section 106 (Marijuana) and Section 106.00 (Controlled Drugs and Substances). The amendment to Title 9, Section 106 provided for a sentence of labor not to exceed six months, or a fine not to exceed $360, or both, for any Indian who farmed, gathered, or dealt in marijuana. Section 106(e), which defines "marijuana" for purposes of the penal code, was amended to exclude all parts of the Cannabis plant that contain less than one percent of the chemical tetrahydrocannabinol (THC) by weight. The amended ordinance specifically excluded "industrial hemp" by definition. A definition of industrial hemp was added to section 106.00, describing it as 3 [a]ll parts and varieties of the plant Cannabis sativa, both indigenous and imported, that are, or have historically been, cultivated and harvested for fiber and seed purposes and contain a tetrahydrocannabinol concentration of one percent or less by weight. 4 Appellee's App. at 13. Before passage of the amendments, the United States Attorney for South Dakota had notified the Tribe of the Drug Enforcement Agency's (DEA) position that the manufacture of hemp required a DEA Certificate of Registration (DEA registration) permitting the manufacture of marijuana. He also warned that anyone cultivating marijuana or hemp without one was subject to criminal prosecution. 5 Pursuant to the ordinance, and without a DEA registration, Alex White Plume raised a cannabis crop on federal trust land in 2000. White Plume contracted to sell the crop to Tierra Madre, a hemp processing company. The government learned of the crop, obtained samples of it under a search warrant, and, pursuant to court order, destroyed it. The next year, Percy White Plume tried his hand at growing cannabis on federal trust land without a DEA registration, and told the government he was doing so. He was sent a DEA registration application, but it was never completed, and a registration was never issued. As earlier, the government destroyed the crop. That crop was under contract to be sold to another hemp processing company, Madison Hemp. Undaunted, in 2002, Alex White Plume planted yet another cannabis crop on federal trust land, and, equally undaunted, the government again took samples and discovered traces of THC. Instead of prosecuting the White Plumes, the government asked the district court to declare them in violation of the Controlled Substances Act (CSA) and to permanently enjoin them from manufacturing or distributing cannabis. 6 The district court found that the White Plumes had violated the CSA by cultivating, without a DEA registration, hemp, which the court held was included in the definition of marijuana under the CSA. It also found that the Treaty of Fort Laramie of 1868 (Treaty) did not preserve any right of the Tribe to grow cannabis. Finally, the court determined that the classification of hemp as marijuana was not irrational and unconstitutional. The court ordered the White Plumes permanently enjoined from cultivating Cannabis sativa L. without a valid DEA registration. II. DISCUSSION 7 Appellants argue the district court erred (1) by holding that industrial hemp is subject to the CSA, (2) by finding that the Treaty does not grant the Tribe the right to cultivate hemp, and (3) by failing to find that regulating hemp under the CSA constitutes a due process and equal protection violation.2 A. Industrial Hemp Is Subject to the CSA 8 The CSA makes it illegal to manufacture, distribute, dispense, or possess any controlled substance except as authorized by the CSA. 21 U.S.C. §§ 841(a)(1), 844(a). A controlled substance is anything listed in a schedule under the CSA. Id. at § 802(6). A person who proposes to engage in the manufacture or distribution of a controlled substance must obtain a registration (DEA registration) issued by the attorney general pursuant to regulations established by that office. Id. at §§ 822-824; 21 C.F.R. §§ 1301 et seq. The CSA establishes five "schedules" of controlled substances differentiated by the scheduled drugs' potential for abuse, usefulness in medical treatment, and potential consequences if abused. To be placed on Schedule I, a drug or substance must have a "high potential for abuse," must have "no currently accepted medical use in treatment in the United States," and there must exist "a lack of accepted safety for use of the drug or other substance under medical supervision." 21 U.S.C. § 812(b)(1). "Marihuana" (marijuana) and "tetrahydrocannabinols" (THC) are both listed on Schedule I. Id. at § 812(c)(Schedule I)(c)(10), (17). 9 Appellants first argue that the hemp the White Plumes attempted to farm is not "marijuana." Section 802(16) defines marijuana as "all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin." Excepted from the definition are 10 the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination. 11 21 U.S.C. § 802(16). Appellants argue that the court ignored evidence that industrial hemp and marijuana are really different species of Cannabis, and that the drug "marijuana" that Congress sought to regulate in the CSA is Cannabis indicus. But Congress clearly defined "marijuana" as Cannabis sativa L. in the CSA. "`We are persuaded that Congress adopted "Cannabis sativa L." believing it to be the term that scientists used to embrace all marihuana-producing Cannabis; the other named sorts were not seen as separate Cannabis species.'" United States v. Gavic 520 F.2d 1346, 1352 (8th Cir.1975) (quoting United States v. Honneus, 508 F.2d 566, 575 (1st Cir.1974)). See New Hampshire Hemp Council, Inc. v. Marshall, 203 F.3d 1, 3 (1st Cir.2000) ("[B]oth the drug commonly known as marijuana and various industrial products (e.g., rope) derive from different portions of the plant popularly called the hemp plant and designated Cannabis sativa in the Linnaean system of botanical classification."). 12 In support of their argument that Congress did not intend to regulate industrial hemp, Appellants also assert that while the definition of "marijuana" in the modern CSA was carried forward from the Marihuana Tax Act of 1937 (Tax Act), which the CSA replaced, the Tax Act's practical effect of excluding industrial-use portions of the plant from regulation by not taxing them, was not carried forward. As a result, Appellants argue, Congress unintentionally subjected industrial hemp to regulation under the CSA. They cite Hemp Council for a bit of history to support this assertion. 13 The definition of "marijuana" under the CSA is derived from the Tax Act, 50 Stat. 551, Hemp Council, 203 F.3d at 7, and uses identical language as that used in the Tax Act. 14 The term "marihuana" means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds, or resin; but shall not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination. 15 50 Stat. 551 § 1(b). The practical effect of the Tax Act, however, was to treat industrial-use and drug-use marijuana differently by taxing them at different rates, or not at all. 16 All producers of cannabis sativa and certain legitimate users (e.g., doctors) were subject to a small tax, ($1 per year), Marihuana Tax Act § 2(a), 50 Stat. at 552; see also S.Rep. No. 75-900, at 4, but no tax was applied to transfers of the mature stalk of the plant, which is useful only for industrial use, S.Rep. No. 75-900, at 4, and which was specifically excluded from the definition of "marijuana," Marihuana Tax Act § 1(b), 50 Stat. at 551. By contrast, to discourage "illicit" uses, an extremely high tax ($100) applied to each transfer of other parts of the plant to anyone who had not registered with the government and paid his own occupational tax. Marihuana Tax Act §§ 6, 7(a)(2), 50 Stat. at 553-54. . . . Transfers that did not comply were made criminal. Id. §§ 4, 8, 12, 50 Stat. at 553, 555, 556. See generally S.Rep. No. 75-900; Smith v. United States, 269 F.2d 217, 218-20 (D.C.Cir.), cert. denied, 361 U.S. 865, 80 S.Ct. 130, 4 L.Ed.2d 108 (1959). 17 Hemp Council, 203 F.3d at 7. When Congress passed the CSA, it adopted the Tax Act's definition of marijuana verbatim. But since the CSA abandoned the Tax Act's complex tax scheme in favor of criminal sanctions (which could be avoided by a DEA registration), as a way to regulate marijuana production and distribution, the CSA now criminalized the growing of marijuana whether it was intended for industrial-use or drug-use. 18 While in 1937 Congress had indicated in legislative history that production for industrial uses would be protected (primarily by a relatively low tax), see S.Rep. No. 75-900, at 4; Smith, 269 F.2d at 218-20, we can find no indication that Congress in 1970 gave any thought to how its new statutory scheme would affect such production. ... Congress' main vehicle for protecting industrial-use plant production in 1937 was not its basic definition of "marijuana," which included plants ultimately destined for industrial use; it was the complex scheme of differential tax rates and other requirements for transfers. That is the regime that was drastically modified in 1970 in favor of a broad criminal ban (subject only to federal licensing), a ban which read literally embraces production of cannabis sativa plants regardless of use. 19 Id. Given the legislative history of the Tax Act and the CSA's adoption of its definition of marijuana, Appellants' argument that Congress did not intend to criminalize the growing of marijuana for industrial purposes is plausible, but ultimately not persuasive, for we are bound by the language of the CSA. If the language of a statute is unambiguous, the statute should be enforced as written unless there is clear legislative intent to the contrary. United States v. Milk, 281 F.3d 762, 766 (8th Cir.2002). The language of the CSA unambiguously bans the growing of marijuana, regardless of its use, and unlike the situation with the Tax Act, we find no evidence that Congress intended otherwise. 20 The possibility remains that Congress would not have adopted the 1970 statute in its present form if it had been aware of the effect on cultivation of plants for industrial uses. But that is only a possibility and not a basis for reading the new statute contrary to its literal language, at least absent a clear indication that Congress intended to protect plant production for industrial use as it existed under the prior tax statute. 21 Hemp Council, 203 F.3d at 7 (citation omitted). We agree with the First Circuit. Essentially, what Appellants seek from this court is amendment of the CSA. But the proper venue for amending a statute is, of course, the duly elected legislature, equipped as it is to make those policy decisions. 22 "We as judges of the U.S. Court of Appeals have only the power to interpret the law; it is the duty of the legislative branch to make the law. We must refuse to infringe on the legislative prerogative of enacting statutes to implement public policy. The problems of public policy are for the legislature and our job is one of interpreting statutes, not redrafting them." 23 Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1033 (8th Cir.2003) (quoting Welsh v. Boy Scouts of Am., 993 F.2d 1267, 1270-71 (7th Cir.1993)). 24 Appellants also argue that hemp is distinguished from marijuana because it contains virtually no THC, making it incapable of having a high potential for abuse as required by the CSA for a drug to be included on Schedule I. In Hemp Council, a case similar to this one, the appellant proposed to grow industrial hemp. He argued that Congress had not intended to regulate non-psychoactive (low THC) Cannabis sativa (that portion of the plant used for industrial products). The court held that though at "some stage" Cannabis sativa may contain such low levels of THC that it would be impractical to use as a drug, "problems of detection and enforcement easily justify a ban broader than the psychoactive variety of the plant." Hemp Council, 203 F.3d at 6. 25 The plain language of the CSA states that Schedule I(c) includes "any material . . . which contains any quantity of [THC]," (emphasis added) and thus such material is regulated. Appellants point to a pair of Ninth Circuit cases which hold that Congress meant to regulate only materials containing any quantity of synthetic THC, and not natural THC (of which hemp contains trace amounts). "`[I]f naturally-occurring THC were covered under THC, there would be no need to have a separate category for marijuana, which obviously contains naturally-occurring THC.'" Hemp Indus. Ass'n. v. DEA, 357 F.3d 1012, 1014 (9th Cir.2004) (Hemp II) (quoting Hemp Indus. Ass'n v. DEA, 333 F.3d 1082, 1089 (9th Cir.2003)(Hemp I)). In Hemp II, appellants manufactured and sold food and cosmetic products made from hemp seed and oil. They did not grow Cannibas sativa. They challenged a DEA rule seeking to regulate any product that contains any amount of natural or synthetic THC. The court held that the DEA could regulate 26 foodstuffs containing natural THC if it is contained within marijuana, and can regulate synthetic THC of any kind. But they cannot regulate naturally-occurring THC not contained within or derived from marijuana-i.e., non-psychoactive hemp products-because non-psychoactive hemp is not included in Schedule I. The DEA has no authority to regulate drugs that are not scheduled, and it has not followed procedures required to schedule a substance. 27 Hemp II, 357 F.3d at 1018. 28 The reasoning of Hemp II does not help Appellants because the case is distinguishable. The White Plumes were growing Cannabis sativa, from which hemp is ultimately derived, but from which "psychoactive" marijuana is also derived. Thus, even according to Hemp II, the White Plumes' farming of hemp is regulated by the CSA because it is marijuana at some point in the farming operation, containing natural THC. By contrast, the appellants in Hemp II did not grow marijuana, but manufactured products using imported hemp which, though containing natural THC, was not, at the time they possessed it, part of a marijuana plant. Indeed, in Hemp I, the court acknowledged that "[t]he industrial hemp plant itself, which falls under the definition of marijuana, may not be grown in the United States. Therefore, the seeds and oil must be imported." 333 F.3d at 1085 n. 2 (emphasis added). See Hemp Council, 203 F.3d at 7 n. 6 ("Of course, stalks and fiber can still be possessed, see Limbach v. Hooven & Allison Co., 466 U.S. 353, 355, 104 S.Ct. 1837, 80 L.Ed.2d 356 (1984) (noting that hemp fibers are not grown in the United States but can be imported), but that is because of the explicit carve-out contained in the statute . . . ."). 29 Because the CSA does not distinguish between marijuana and hemp in its regulation, and because farming hemp requires growing the entire marijuana plant which at some point contains psychoactive levels of THC, the CSA regulates the farming of hemp. 30 B. The Treaty of Fort Laramie of 1868 Does Not Grant a Treaty Right to Farm Hemp 31 Appellants further argue that the Treaty gives the White Plumes a right to grow hemp. The Treaty between the United States and the Tribe provided in part that if any head of a family within the Tribe wished to farm, the government would provide them with a tract of land, as well as seeds and agricultural implements for the first year. Appellants assert that because hemp was either grown by Indian tribes or its cultivation was being encouraged by the United States government at the time of the signing of the Treaty, language guaranteeing farming support to the Tribe means the Treaty contemplated all kinds of farming, including hemp. Regardless of the historical accuracy of the assertion that the federal government encouraged hemp growing when the Treaty was signed, the plain language of the treaty merely refers to "farming"-it mentions nothing about farming hemp. Indian treaties are to be interpreted liberally in favor of Indians, and any ambiguities are to be resolved in their favor. Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 200, 119 S.Ct. 1187, 143 L.Ed.2d 270 (1999). The record does not support an assertion that the Treaty is ambiguous as to whether it contemplated the growing of hemp by the Tribe. 32 Under statutory interpretation, a statute is ambiguous if it is "`capable of being understood in two or more possible senses or ways.'" Chickasaw Nation v. United States, 534 U.S. 84, 90, 122 S.Ct. 528, 151 L.Ed.2d 474 (2001) (quoting Webster's Ninth New Collegiate Dictionary 77 (1985)). The language of the Treaty as written is not ambiguous on the matter of farming hemp because the Treaty is not written in the context of permitting the cultivating of particular crops. Rather, the Treaty simply provides for government assistance should members of the Tribe choose to farm. Given that the CSA prohibits the cultivation of marijuana without a DEA registration, and given that "the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States . . . shall extend to the Indian country," the White Plumes may not cultivate hemp without a DEA registration, and the Treaty does not reserve any such right. 18 U.S.C. § 1152. 33 C. The CSA Does Not Violate Substantive Due Process 34 The Companies assert that the CSA violates substantive due process under either strict scrutiny or rational basis review. The government asserts that they did not make these claims below and so may not raise them for the first time on appeal. The record indicates that the Companies asserted in their Answer and Counterclaim that they could proceed against the DEA under the Administrative Procedure Act (APA) for "violation of the constitutional rights of Tierra Madre and Madison Hemp." Though the government's point that the Companies did not develop these arguments below is well-taken, we think what little they did raise is sufficient in this case for purposes of our appellate review. 35 The government also challenges the Companies' standing to bring the constitutional claims. To have standing, a party must show that it has suffered a concrete and actual or imminent injury-in-fact, the injury is fairly traceable to the challenged action of the defendant, and it is likely that the injury can be redressed by the court. McClain v. Am. Econ. Ins. Co., 424 F.3d 728, 731 (8th Cir.2005). The Companies can show that they sustained injury by not receiving the products for which they contracted with the White Plumes. The government argues that any injury suffered by the Companies is not legally protected because it involves contracts with the White Plumes that are void for conspiring to violate the CSA. But that is the ultimate question to be decided by this court-whether the White Plumes' activities are regulated by the CSA, and by extension whether the Companies' contracts were valid. The government also argues that the Companies' injury cannot be redressed because they ask this court to assume a legislative role and find that hemp is not marijuana under the CSA. That is a characterization of the case that, while relevant in a broader sense, does not necessarily bear on the narrow question of redressability. We find that the Companies have sufficient standing in this case for purposes of raising these constitutional issues on appeal. 1. Strict Scrutiny Does Not Apply 36 Though we find the constitutional issues preserved for appeal and the requisite standing satisfied, the Companies have a tough row to hoe. They ask this court to be the first to find that farming-and by extension, farming hemp-is a fundamental right subject to strict scrutiny protection under the Fifth Amendment Due Process Clause. In this regard, we are guided by the Supreme Court's own reticence to declare from the bench what is and what is not a "fundamental right." 37 [W]e "ha[ve] always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended." By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore "exercise the utmost care whenever we are asked to break new ground in this field," lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court. 38 Washington v. Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (second alteration in original) (citations omitted). The Supreme Court has not declared "farming" to be a fundamental right, and we decline to do so today. It follows that we also decline to declare "hemp farming" a fundamental right. Since we do not deal here with a fundamental right, we do not apply strict scrutiny to the due process question. Doe v. Miller, 405 F.3d 700, 710 (8th Cir.2005). 39 2. CSA Classification Is Not Arbitrary and Irrational 40 The Companies also assert that the CSA's regulation of hemp is not rationally related to a legitimate governmental purpose. Here, the Companies face the high hurdle of the rational basis test, which assumes the constitutionality of the statute at issue. See United States v. Fogarty, 692 F.2d 542, 547 (8th Cir.1982). In Fogarty, this court addressed an argument that the CSA's classification of marijuana as a Schedule I drug was unconstitutionally irrational and arbitrary because marijuana, it was argued, does not meet the criteria for Schedule I drugs-as relevant here, that it did not have a high potential for abuse. We noted that "`the judiciary may not sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines.'" Id. (quoting New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976)). We held that the ongoing debate about the physical and psychological effects of marijuana and whether it had any medicinal value was a sufficiently rational reason for Congress to include marijuana on Schedule I. Id. at 547-48. 41 The Companies argue that Fogarty is distinguishable because the scheduling of the drug marijuana was challenged in that case, whereas the scheduling of "industrial hemp" is challenged in the instant case. The First Circuit faced a similar argument in Hemp Council, and we agree with its reasoning that found at least one rationale for regulating hemp under the CSA. "It may be that at some stage the plant destined for industrial products [hemp] is useless to supply enough THC for psychoactive effects. But problems of detection and enforcement easily justify a ban broader than the psychoactive variety of the plant." 203 F.3d at 6. Since categorizing marijuana, be it for drug- or industrial-use, as a Schedule I substance passes muster under the rational basis test, the CSA does not violate the Companies' due process rights. III. CONCLUSION 42 We are not unmindful of the challenges faced by members of the Tribe to engage in sustainable farming on federal trust lands. It may be that the growing of hemp for industrial uses is the most viable agricultural commodity for that region. And we do not doubt that there are a countless number of beneficial products which utilize hemp in some fashion. Nor do we ignore the burdens imposed by a DEA registration necessary to grow hemp legally, such as the security measures required by the regulations. See 21 C.F.R. §§ 1301 et seq. But these are policy arguments better suited for the congressional hearing room than the courtroom. Today we fulfill our role to interpret and apply the statute as written by Congress, and affirm the district court. Notes: 1 The Honorable Richard H. Battey, United States District Judge for the District of South Dakota 2 Appellants did not develop an equal protection argument on appeal, so we do not address that issue

01-03-2023

04-19-2012

https://www.courtlistener.com/api/rest/v3/opinions/795379/

459 F.3d 804 Terrance BERGER and Donald Laxton, Plaintiffs-Appellants,v.AXA NETWORK LLC and Equitable Life Assurance Society of the United States, Defendants-Appellees. No. 05-2495. United States Court of Appeals, Seventh Circuit. Argued February 14, 2006. Decided August 18, 2006. Joshua N. Rose (argued), Rose & Rose, Washington, DC, for Plaintiffs-Appellants. Nancy G. Ross (argued), McDermott, Will & Emery, Chicago, IL, for Defendants-Appellees. Before BAUER, RIPPLE and WILLIAMS, Circuit Judges. RIPPLE, Circuit Judge. 1 Section 510 of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1140, prevents employers from altering their workers' employment status for the purpose of interfering with rights under an ERISA-qualified benefit plan. The named plaintiffs in this class action, two insurance salesmen, have invoked § 510 against their employers, AXA Network LLC and the Equitable Life Assurance Society of the United States (collectively, "AXA"). They allege that AXA intentionally deprived them of benefits by changing the way that insurance salesmen are defined as full-time employees of the company. The district court awarded summary judgment to AXA on the ground that the limitation period applicable to the plaintiffs' claim had expired; it ruled alternatively that the plaintiffs' assertions failed as a matter of law. We agree with the district court that the plaintiffs' claim is time-barred. Accordingly, we affirm the judgment of the district court on that ground and find it unnecessary to reach the merits. 2 * BACKGROUND A. Facts 3 In this de novo review of the district court's grant of summary judgment to AXA, we must construe the facts in a manner that resolves all reasonable inferences in the non-movant's favor. See Scaife v. Cook County, 446 F.3d 735, 738-39 (7th Cir.2006). Indeed, there is little dispute concerning the basic facts. The defendants in this action, AXA Network LLC and the Equitable Life Assurance Society of the United States — to whom we refer collectively as "AXA" — are insurance brokerage subsidiaries of the France-based AXA Financial, Inc. Both subsidiaries are headquartered in New York City and provide the same pension and welfare benefits to their employees, agents and managers through a number of ERISA-qualified plans. AXA maintains a network of agency offices throughout the United States. Each satellite office employs a staff of insurance salesmen who work locally, selling policies to customers in their region. The lead plaintiffs in this action, Terrance Berger and Donald Laxton, are Illinois residents who signed on as insurance salesmen with a local AXA office near Chicago in the early 1980s. After having worked for the company for three years, each entered into an agreement with AXA known as the "14th Edition" contract that permitted them to sell AXA policies as independent contractors. 4 AXA insurance salesmen, despite being independent contractors, were able to participate in the company's ERISA-qualified plans. To become eligible, they had to be considered an "employee" under the Internal Revenue Code, which includes "full-time life insurance salesman" within the definition of "employee." 26 U.S.C. § 3121(d)(3)(B). An IRS regulation, in turn, defines a "full-time insurance salesman" as an individual "whose entire or principal activity is devoted to the solicitation of life insurance or annuity contracts, or both, primarily for one life insurance company." 26 C.F.R. § 31.3121(d)-1(d)(3)(ii). This definition is a default; the employer and employee may choose to redefine "full-time" status via contract, so long as they act reasonably. See Brian E. Gates, Internal Revenue Manual § 4.23.5-3 (2005). 5 At the time that the plaintiffs entered into their 14th Edition contracts with AXA, the company employed essentially an "honor system" to qualify salesmen as full-time agents. Under this system, salesmen were asked, upon contracting with AXA, to complete a FICA form indicating whether they intended to devote their principal business activity to the solicitation of life insurance or annuity policies for AXA. Assuming they answered affirmatively, AXA then applied a presumption that agents who had submitted an appropriate FICA form were statutory employees. When Mr. Berger and Mr. Laxton entered into 14th Edition contracts with AXA, both indicated on their FICA forms that they intended to devote their principal business activity to selling AXA policies. AXA then relied on these representations to qualify them as full-time agents and to allow them to participate in AXA's ERISA-qualified plans. 6 In the mid-1990s, senior management at AXA began recommending that the company do away with the "honor system" and no longer accept a salesman's representation that he was committed to selling AXA policies full-time. Instead, management proposed a new policy that tied statutory employee status to an objective measure of annual insurance sales. The idea was that this objective formula more accurately measured the agents' intent to devote their principal business activity to selling AXA policies. The proposal was adopted, and AXA announced that, starting January 1, 1999, agents under 14th Edition contracts who failed to meet a specified sales goal during the preceding year no longer would be considered statutory employees. The plaintiffs were alerted to this policy change by letters from AXA headquarters, dated February 6, 1998. In 1999, Mr. Berger failed to meet the new annual sales threshold and lost his status as a statutory employee. Mr. Laxton met the same fate the following year. As a result, they were no longer eligible to participate in AXA's benefit plans. From 1999 to 2004, several thousand other AXA agents lost full-time status and plan eligibility as a result of the change in policy. B. District Court Proceedings 7 On January 7, 2003, Mr. Berger and Mr. Laxton filed a three-count complaint alleging that AXA's 1999 change in the way it classified agents violated § 510 of ERISA, see 29 U.S.C. § 1140.1 In 2004, the district court granted the plaintiffs' motion for certification of a class consisting of the thousands of other insurance agents who had been reclassified by AXA and denied eligibility for benefits. 8 AXA then moved for summary judgment, asking the court to dismiss the class action on the ground that the plaintiffs' claims were time-barred or, alternatively, on the ground that they failed as a matter of law. The district court granted the motion. Because § 510 lacks a statute of limitations, the court borrowed a limitations period from the law of New York, the state that, in its view, had the most significant relationship to the dispute. The court determined that the most analogous claim for relief under New York law is a claim for retaliatory discharge under the state's workers' compensation law; New York law bars such claims after two years, see N.Y. Work. Comp. Law § 120. The court then rejected the plaintiffs' theory that each yearly denial of full-time status started the limitations clock anew. The court held that the plaintiffs' claims accrued in 1998, when they first learned of AXA's decision to change the way it classified insurance salesmen, or, at the latest, when the policy became effective in January 1999. In either case, the plaintiffs' failure to institute this action until January 7, 2003, barred their claim under the applicable two-year statute of limitations. 9 The district court held, alternatively, that the plaintiffs' grievance under § 510 failed as a matter of law. That section, which is designed to protect the employment relationship from being changed in ways intended to deny benefits, did not, according to the court, apply to the present dispute. In the court's view, the employment relationship between AXA and its salesmen had not been altered by the 1999 change in policy. What had changed was that, instead of taking an agent's word that he was committed to selling AXA policies full-time, AXA had chosen to employ a concrete sales calculus in order to make the full-time determination objective. This change, the district court concluded, did not offend § 510. II DISCUSSION 10 We first address whether the district court correctly determined the appropriate limitations period for an action under § 510 of ERISA, see 29 U.S.C. § 1140. In examining this problem, we must confront several difficult methodological issues that have "spawned a vast amount of litigation" and "uncertainty for both plaintiffs and defendants." Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 377, 379, 124 S.Ct. 1836, 158 L.Ed.2d 645 (2004). A. 11 In enacting ERISA, Congress supplied an express limitations period for several parts of the statute;2 it did not, however, provide one for actions grounded in § 510.3 Section 510 also was enacted too early to permit us to apply the default four-year federal limitations period contained in 28 U.S.C. § 1658(a). That statute functions as a catch-all limitations period for federal causes of action that do not have their own limitations periods.4 The catch-all, however, applies only to those causes of action created after 1990. Although the Supreme Court has held that, under certain circumstances, a new amendment to an older federal statute can trigger § 1658(a), see Jones, 541 U.S. at 382, 124 S.Ct. 1836, § 510 of ERISA has not been amended since its original enactment in 1974. 12 Because Congress has failed to provide any statutory direction, our inquiry must be guided by principles of federal common law. The basic approach is well-settled. When Congress fails to provide a statute of limitations for a federal claim and § 1658(a) is not applicable, federal courts must borrow the most analogous statute of limitations from state law. See Reed v. United Transp. Union, 488 U.S. 319, 323, 109 S.Ct. 621, 102 L.Ed.2d 665 (1989); Teumer v. Gen. Motors Corp., 34 F.3d 542, 546-47 (7th Cir.1994). The Supreme Court has recognized a limited exception to this general rule: 13 We decline to borrow a state statute of limitations only when a rule from elsewhere in federal law clearly provides a closer analogy than available state statutes, and when the federal policies at stake and the practicalities of litigation make that rule a significantly more appropriate vehicle for interstitial lawmaking. 14 Reed, 488 U.S. at 324, 109 S.Ct. 621 (internal quotation marks omitted). The Supreme Court also has made clear, however, that this exception is "a closely circumscribed[,] ... narrow exception to the general rule," id. at 324, 109 S.Ct. 621, and that state law remains the "lender of first resort," N. Star Steel Co. v. Thomas, 515 U.S. 29, 34, 115 S.Ct. 1927, 132 L.Ed.2d 27 (1995). In any event, borrowing directly from federal law in this case is foreclosed by our prior cases. See, e.g., Teumer, 34 F.3d at 546-47 (applying a state limitations period to a claim under § 510); Tolle v. Carroll Touch, Inc., 977 F.2d 1129, 1137 (7th Cir.1992) (same). 15 In Teumer, we held that "the five-year statute of limitations governing retaliatory discharge claims in Illinois should apply to all § 510 actions in which Illinois limitations law is to be borrowed." Teumer, 34 F.3d at 550. However, in Teumer, we did not have to choose between the law of Illinois and the law of another state in borrowing a state statute of limitations.5 In the present case, by contrast, the parties dispute whether Illinois or New York law ought to supply the limitations period. Illinois is the forum state and home to the named plaintiffs in this class action. New York, on the other hand, is the location of AXA's headquarters, where the plan is administered and where the decisions at issue in this case were made. It is also the state whose substantive law is, by the terms of the plan, applicable to disputes arising under that contract. 16 In order to determine whether Illinois or New York law ought to supply the limitations period, we first must identify a choice of law rule or methodology that will permit our determination to be a principled one. The Supreme Court has not set forth a definitive choice of law formula to govern the selection of a limitations period. See Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 705 n. 8, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966) (reserving the question).6 However, its rulings on related issues and the experience of our sister circuits provide helpful guidance. B. 17 We begin our journey with a principle upon which there is no real disagreement: In fashioning a choice of law rule to govern our quest for the most appropriate state limitations period, our task, when the underlying claim is a federal claim, is to fashion a federal choice of law rule.7 This principle is really nothing more than a corollary principle to the more general maxim that, when state law is borrowed in a federal question suit, the choice of "which [state] law to select is itself a question of federal law." Resolution Trust Corp. v. Chapman, 29 F.3d 1120, 1124 (7th Cir.1994) (citation omitted) (emphasis added). In Chapman, we explained: 18 What law Illinois courts would choose is ... irrelevant. This is not a diversity case, where Erie would require the forum court to apply the whole law of the state, including its choice of law principles. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). It is a suit by a federal agency invoking federal jurisdiction per 12 U.S.C. § 1441a(l)(1), which says that suits to which the [Resolution Trust Corp.] is a party "shall be deemed to arise under the laws of the United States". Federal law may well look to state law for substantive principles, see United States v. Kimbell Foods, Inc., 440 U.S. 715, 727-29, 99 S.Ct. 1448, 59 L.Ed.2d 711 (1979), but which law to select is itself a question of federal law, as Kimbell Foods and O'Melveny & Myers [v. FDIC, 512 U.S. 79, 114 S.Ct. 2048, 129 L.Ed.2d 67 (1994),] show. The Supreme Court in O'Melveny & Myers did not ask what law a state court would have selected; it approached the question as one for independent decision. Id. 8 19 This general principle is easily applicable to the borrowing of a state statute of limitations to fill a gap left open in a federal statute. Unlike when our jurisdiction is based on diversity of citizenship, the exercise of federal question jurisdiction does not implicate concerns of federalism and interstate comity. "State legislatures do not devise their limitations periods with national interests in mind." Reed, 488 U.S. at 324, 109 S.Ct. 621 (internal quotation marks omitted); Gluck v. Unisys Corp., 960 F.2d 1168, 1179 n. 8 (3d Cir. 1992) ("A state court or legislature does not necessarily seek to further or even consider federal laws when it develops its choice of law provisions."). In federal question cases, we must ensure only that the borrowed limitations period is compatible with the purpose of the federal statute. In view of this general principle, we now must evaluate several possible methodologies for determining which state's law should apply. 20 One possible approach would be simply to choose, in every case, the forum state's law as the source of the applicable limitations period. The prime advantage of this approach is its simplicity; neither the court nor the parties remain in doubt concerning which state's law ought to apply. Certainly, predictability and ease of administration are factors long recognized in the fashioning of any choice of law tool. See Restatement (Second) of Conflict of Laws § 6(2).9 21 This approach is not without disadvantages, however. The selected limitations period, drawn in rote fashion from the forum state's law, may have only a limited relationship to the federal cause of action and its underlying policies. When a state, either by statute or by case law, makes a certain limitations period applicable to a particular state cause of action, a conscious decision is made that the public policy of the state ought to permit suit on that state-created cause of action only for the length of time permitted by that limitations period. Whatever the reasons for the state's policy on how long a state cause of action ought to remain alive, those policy concerns may not have much relevance to the congressional policies that animate a federal cause of action in the district court under the court's federal question jurisdiction. See Reed, 488 U.S. at 324, 109 S.Ct. 621; Gluck, 960 F.2d at 1179 n. 8. 22 The force of this criticism partially is assuaged, no doubt, by the fact that the state limitations period is linked to a state cause of action that at least somewhat resembles the federal cause of action. Here, for instance, the state limitations period typically borrowed in § 510 actions is the one that applies to the state cause of action for retaliatory discharge, a cause of action that embodies at least some of the same protective policy concerns that are contained in § 510. See Teumer, 34 F.3d at 547 (noting that § 510 protects workers against "the disruption of employment privileges to punish (i.e. retaliate for) the exercise of benefit rights" (emphasis omitted)). 23 Nevertheless, we must conclude that the automatic application of the forum state's statute of limitations does risk endangering federal policies by displacing them in favor of state concerns that are driven by local geographical factors or local interests and that are different from or even inimical to national policy interests. "Federal law is no judicial chameleon, changing complexion to match that of each state wherever lawsuits happen to be commenced." D'Oench, Duhme & Co. v. FDIC, 315 U.S. 447, 471-72, 62 S.Ct. 676, 86 L.Ed. 956 (1942) (Jackson, J., concurring). 24 A second possible approach is to fashion a choice of law rule as a matter of federal common law by relying on the approach to statutes of limitations set forth in the Restatement (Second) of Conflict of Laws. See Held v. Mfrs. Hanover Leasing Corp., 912 F.2d 1197, 1202 (10th Cir.1990) (discussing this approach). The Restatement has a special section devoted to the selection of an appropriate statute of limitations: Section 142.10 This section was revised in 1988 to reflect "the emerging trend" in the way courts were approaching limitations questions. See Reinke v. Boden, 45 F.3d 166, 168-69 (7th Cir.1995). The comments to the revision observed that, in the period after the adoption of the Second Restatement in 1971, many courts had ceased to "characterize the issue of limitations as ipso facto procedural and hence governed by the law of the forum." Restatement (Second) of Conflict of Laws § 142 cmt. e.11 Instead, these courts had decided that a claim should not be maintained "if it is barred by the statute of limitations of the state which, with respect to the issue of limitations, is the state of the most significant relationship to the occurrence and the parties." Id. As revised, section 142 resolves limitations conflicts through the Restatement's general, multi-factor "interest analysis," id. § 6(2),12 despite retaining "a decided forum bias." Eugene F. Scoles et al., Conflict of Laws 130 (4th ed.2004). 25 Application of the Restatement approach to the task before us requires a significant amount of prudence and caution. Full-scale implementation of the Restatement would amount to using a tool created for one task to accomplish another. Section 142 provides that, if the forum has a longer statute of limitations that would permit the claim, the longer period should apply unless there is no "substantial" forum interest and the "state having a more significant relationship to the parties and the occurrence" would bar the claim. Restatement (Second) of Conflict of Laws § 142(2)(a), (b). This task of accommodating the interests of two states is, of course, not the appropriate focus of the judicial inquiry in the task before us. Our task is not to reconcile the competing interests of Illinois and New York but to identify the state statute of limitations that is most compatible with the underlying policies of the federal cause of action before us, ERISA § 510. From this perspective, Restatement § 142 is a helpful tool in our task only insofar as it counsels that the appropriate statute of limitations, in certain cases, may not be that of the jurisdiction in which the court sits, but rather one from another jurisdiction that has a more significant relationship with the parties and with the transaction. 26 Our examination of these two approaches convinces us that neither is a totally effective tool in identifying the appropriate statute of limitations for a claim based on federal law. Total adherence to forum law would provide a great deal of certainty and avoid a "trial within a trial" on the statute of limitations issue. Certainly, "`[f]ew areas of the law stand in greater need of firmly defined, easily applied rules than does the subject of periods of limitations.'" Wilson v. Garcia, 471 U.S. 261, 266, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985) (quoting Chardon v. Fumero Soto, 462 U.S. 650, 667, 103 S.Ct. 2611, 77 L.Ed.2d 74 (1983) (Rehnquist, J., dissenting)). There will be occasions, however, when the statute of limitations of another state ought to be applied — not because that state has a greater interest in the application of its own law as opposed to the law of the forum — but because application of that state's law is more consistent with the federal policies embodied in the substantive federal statute. See Gluck, 960 F.2d at 1179 & n. 8. 27 Because both of the methodologies that we have out-lined are tools created for other tasks, some of our sister circuits have suggested a third approach. Under this approach, a federal court selects a statute of limitations from the forum state's law unless another state has more significant contacts with the dispute.13 This approach gives adequate, indeed great, weight to the concerns of predictability, certainty and ease of administration. It also ensures at least some minimum congruence between the policy concerns underlying the federal cause of action and those underlying the state cause of action from which the limitations period is borrowed. 28 We believe that this approach has significant merit. However, the congruence may be truly minimal, and therefore we hesitate to characterize forum law as the "presumptive" choice. In our view, it is preferable to refer to the forum's limitations period instead as a starting point. If another state with a significant connection to the parties and to the transaction has a limitations period that is more compatible with the federal policies underlying the federal cause of action, that state's limitations law ought to be employed because it furthers, more than any other option, the intent of Congress when it created the underlying right. C. 29 We now must apply this approach to the case before us. In our view, New York is the state with the most significant relationship to the parties and to the transaction. The occurrence at issue here was the corporate decision on the part of AXA to alter the criterion for determining whether an employee ought to be considered a full-time insurance salesman. That change was made by AXA management in New York and documented by evidence and by witnesses in New York. Moreover, the decision was applicable to all AXA's salesmen, not simply to those in Illinois. Although the named plaintiffs reside in Illinois, other members of the class reside in states other than Illinois. Thus, Illinois is simply a spoke rather than the hub of this lawsuit.14 Additionally, although not dispositive to our decision today, it is not entirely irrelevant that the plan chose New York law to govern non-ERISA disputes arising out of the document. Although the choice of law clause does not apply directly to the problem before us,15 its presence serves as strong evidence of the parties' "justified expectations," see Restatement (Second) of Conflict of Laws § 6(2), that New York law would fill in the necessary gaps in federal ERISA law. 30 We recognize, of course, that Illinois, as the forum state and home to the named plaintiffs, has some connection with this action. Indeed, the comments to Restatement § 142 recognize that, at least in state court litigation, the decision of which state's law to apply "becomes difficult in situations where, although the forum is not the state of the most significant relationship to important issues in the case, some forum interest would be served by entertainment of the claim," as, for example, "where the domicil of the plaintiff is in the state of the forum." Id. § 142 cmt. g. However, the comments go on to say that, "[i]n such a situation, the forum should entertain the claim only in extreme and unusual circumstances." Id. This latter statement, made by the Restatement authors in the context of state conflicts jurisprudence, seems even more important in the context of ERISA, where uniformity of treatment among beneficiaries is a primary concern. See generally Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 56, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987) (discussing the legislative history of ERISA on the need for uniformity of treatment). Indeed, were we to follow the plaintiffs' theory to its logical end, this class action would be governed by a "crazy quilt" of limitations periods and the federal interest in uniformity would be rendered nugatory. Doe v. Blue Cross & Blue Shield, 112 F.3d 869, 874 (7th Cir.1997). We conclude therefore that application of New York limitations law to the present dispute better serves the federal policies at issue in this case and should displace the law of the forum. D. 31 Now that we have selected New York law as the source of the applicable limitations period, we must "`characterize the essence of' the federal claim in question and find the most analogous cause of action." Teumer, 34 F.3d at 547 (citing Wilson, 471 U.S. at 267-70, 105 S.Ct. 1938). In Teumer, we held that allegations similar to the ones set forth in this complaint most resembled the tort of retaliatory discharge under Illinois law, which, like § 510, encompasses "discharges that either retaliate against or interfere with the exercise of favored rights." Teumer, 34 F.3d at 549 (emphasis in original). Noting that § 510 protects workers against the "disruption of employment privileges to prevent (i.e. interfere with) the vesting or enjoyment of benefit rights," we concluded that the Illinois tort of retaliatory discharge captured "`the essence of' the federal claim in question" and was therefore "the most analogous cause of action." Teumer, 34 F.3d at 546-47 (emphasis in original) (quoting Wilson, 471 U.S. at 267-70, 105 S.Ct. 1938). 32 Like Illinois, New York has a retaliatory discharge cause of action, contained in New York Workers' Compensation Law § 120. Section 120 provides in pertinent part: 33 It shall be unlawful for any employer or his or her duly authorized agent to discharge or in any other manner discriminate against an employee as to his or her employment because such employee has claimed or attempted to claim compensation from such employer, or because he or she has testified or is about to testify in a proceeding under this chapter and no other valid reason is shown to exist for such action by the employer. 34 Any complaint alleging such an unlawful discriminatory practice must be filed within two years of the commission of such practice.... 35 N.Y. Work. Comp. Law § 120. The Second Circuit, relying expressly on our analysis in Teumer, held that section 120 of the workers' compensation law provides the closest New York analog to a suit under § 510. See Sandberg v. KPMG Peat Marwick, L.L.P., 111 F.3d 331, 335-36 (2d Cir.1997). Noting that section 120 protects against the same employer actions as § 510, including employer interference with obtaining benefits, our colleagues on the Second Circuit believed the parallel between the New York statute and § 510 to be "obvious." Id. at 336. We agree; the plaintiffs therefore had two years to institute this proceeding. E. 36 Finally, we must determine what event started the clock running on the two-year limitations period. This question of "accrual" is decided by reference to federal common law. See Tolle, 977 F.2d at 1138 (citing Delaware State Coll. v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980)). We begin our analysis by identifying the alleged unlawful conduct that forms the basis for the claim and then ascertaining when this act occurred. See Tolle, 977 F.2d at 1139. After fixing the date of the alleged unlawful act, we then determine when the plaintiffs discovered "an injury resulting from this unlawful act." Id. In this case, for the plaintiffs' claims to have been timely under the applicable two-year statute of limitations, those claims must have accrued some time after January 7, 2001. 37 In an action under § 510, the unlawful act is the decision to interfere purposefully with a plan "participant's ability to collect benefits to which the participant would otherwise be entitled or from taking actions to prevent such a participant from collecting benefits to which he or she may become entitled." Id. Because an employer can violate this prohibition before a participant has applied for or even becomes entitled to benefits, the accrual of a § 510 claim turns on the discovery of the decision to interfere with benefits rather than on the eventual effect of that decision. This was our reasoning in Tolle, in which we rejected a plaintiff's claim that her § 510 claim accrued on the date that her termination went into effect instead of on the date of the defendant's earlier decision to terminate her. We held that "it is the decision and the participant's discovery of this decision that dictates accrual." Id. at 1140-41; see also Teumer, 34 F.3d at 550. 38 As a result, we cannot accept the plaintiffs' contention that "[i]t is the application of the policy to a particular plaintiff, not the existence of the policy in the abstract, that violates the law and causes injury to each employee." Appellants' Br. at 23. Here, the plaintiffs' § 510 claim is directed at AXA's 1998 change in its method for determining a salesman's full-time status. As in Tolle, the plaintiffs' discovery of their employer's allegedly unlawful decision put them on notice of a potential ERISA violation and provided the factual basis for their claim. The clock started running at this moment, not when the plaintiffs eventually failed to meet their sales quotas and ultimately lost eligibility.16 39 Because the plaintiffs brought this action more than two years after their claim accrued, the district court properly dismissed the action as time-barred. Conclusion 40 For the foregoing reasons, the judgment of the district court is affirmed. 41 AFFIRMED. Notes: 1 Only the ERISA count survived a motion to dismiss. The other allegations are not before us in this appeal 2 For instance, claims under Part 4 of ERISA, the sections governing plan fiduciaries, expire within six years or three years, depending on when the plaintiff knows or should know of the fiduciary's breachSee 29 U.S.C. § 1113. Similarly, actions under Subtitle E, the special provisions for multiemployer plans, id. §§ 1381-1453, must be brought within six years from when they arose or three years from when the underlying actions were discovered. However, § 510, id. § 1140, was codified in Part 5 of ERISA, "Administration and Enforcement," to which the statute of limitations in § 1113 expressly does not apply. 3 See Tolle v. Carroll Touch, Inc., 977 F.2d 1129, 1137 (7th Cir.1992) ("Congress did not provide a statute of limitations for claims premised upon Section 510 of ERISA."). We note, additionally, that it is not uncommon for Congress to omit limitations periods from federal statutes. See, e.g., Goodman v. Lukens Steel Co., 482 U.S. 656, 660-61, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987) (discussing the omission in 42 U.S.C. § 1981); Wilson v. Garcia, 471 U.S. 261, 266-67, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985) (discussing the omission in 42 U.S.C. § 1983). 4 Section 1658(a) was a response to the host of "practical problems" that arise from the practice of borrowing state statutes of limitations to fill gaps in federal statutes. As the House Report to § 1658(a) described, reliance on analogous state statutes obligates judges and lawyers to determine the most analogous state law claim; it imposes uncertainty on litigants; reliance on varying state laws results in undesirable variance among the federal courts and disrupts the development of federal doctrine on the suspension of limitation periods. H.R.Rep. No. 101-734, at 24 (1990), as reprinted in 1990 U.S.C.C.A.N. 6860, 6870. 5 See Teumer v. Gen. Motors Corp., 34 F.3d 542, 547 (7th Cir.1994) ("Because Illinois is both the forum state and the state in which the significant events of this case took place, we will refer to its law without resolving the difficult question of what is the proper choice-of-law rule when selecting state limitation periods for federal claims."). 6 We do not believe that the Supreme Court decided this issue by implication inNorth Star Steel Co. v. Thomas, 515 U.S. 29, 115 S.Ct. 1927, 132 L.Ed.2d 27 (1995), although one of our sister circuits appears to have thought otherwise, see Int'l Union, United Plant Guard Workers of America v. Johnson Controls World Servs., 100 F.3d 903, 905 (11th Cir.1996). As recently as last Term, the Supreme Court recognized that this issue has yet to be resolved. See Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 378, 124 S.Ct. 1836, 158 L.Ed.2d 645 (2004) ("The practice of borrowing state statutes of limitation also forced courts to address the frequently present problem of a conflict of laws in determining which State statute was controlling, the law of the forum or that of the situs of the injury." (internal quotation marks and alterations omitted)). 7 See, e.g., Wang Labs., Inc. v. Kagan, 990 F.2d 1126, 1128 (9th Cir.1993) ("We decide as a matter of federal law which state statute of limitations is appropriate."); Gluck v. Unisys Corp., 960 F.2d 1168, 1179 (3d Cir.1992) ("If a statute of limitations of a state other than the forum state were implicated in the litigation of a federal claim, then federal, not state, choice of law principles would govern."); Champion Int'l Corp. v. United Paperworkers Int'l Union, 779 F.2d 328, 332-34 (6th Cir.1985) (holding that federal law, rather than a state borrowing statute, should govern the choice between the forum state's statute of limitations and that of another state in an action under the federal labor laws). 8 Subsequently, the primary holding ofChapman was overruled by the Supreme Court in Atherton v. FDIC, 519 U.S. 213, 117 S.Ct. 666, 136 L.Ed.2d 656 (1997). We later recognized that Chapman's "ruling on choice-of-law, however, presumably remains controlling precedent." FDIC v. Wabick, 335 F.3d 620, 625 n. 2 (7th Cir.2003). 9 See infra note 14. 10 Section 142 provides: Whether a claim will be maintained against the defense of the statute of limitations is determined under the principles stated in § 6. In general, unless the exceptional circumstances of the case make such a result unreasonable: (1) The forum will apply its own statute of limitations barring the claim. (2) The forum will apply its own statute of limitations permitting the claim unless: (a) maintenance of the claim would serve no substantial interest of the forum; and (b) the claim would be barred under the statute of limitations of a state having a more significant relationship to the parties and the occurrence. Restatement (Second) of Conflict of Laws § 142. 11 See also Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 778, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984) ("There has been considerable academic criticism of the rule that permits a forum State to apply its own statute of limitations regardless of the significance of contacts between the forum State and the litigation."). 12 Section 6(2) states that the factors relevant to the choice of the applicable rule of law include (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied. Restatement (Second) of Conflict of Laws § 6(2). 13 The Third and Ninth Circuits have employed this approachSee Wang Labs., 990 F.2d at 1128; Gluck, 960 F.2d at 1179. 14 Cf. Restatement (Second) Conflict of Laws § 192 cmt. h (noting that, with respect to group life insurance policies, rights against the insurer are usually governed by the law that governs the master policy (usually the place of the corporate headquarters) because it is "desirable that each individual insured should enjoy the same privileges and protections"). 15 The plan's choice-of-law provision cannot control our inquiry for two reasons. First, it would be against the weight of precedent to apply a broad choice-of-law provision to limitations issues where, as here, the provision does not extend expressly to statutes of limitations,see R.68-1, Ex.25 at 279 ("To the extent ERISA is not applicable or does not preempt state law, the laws of the State of New York shall govern."). See Cole v. Mileti, 133 F.3d 433, 437-38 (6th Cir.1998); Gluck, 960 F.2d at 1179; Trs. Operative Plasterers' & Cement Masons' Local Union Officers & Employees Pension Fund v. Journeymen Plasterers' Protective & Benevolent Soc'y, Local Union No. 5, 794 F.2d 1217, 1221 (7th Cir.1986). Second, the plaintiffs' claim does not arise out of the plan itself. Rather, it is an action for interference with the employment status of the salesmen that in turn ends up denying them benefits under the plan. The plan's contractual choice-of-law provision cannot control a claim under § 510 that is by definition extra-contractual. 16 Finally, the plaintiffs argue that, even if they discovered the factual basis for their claim as early as January 1999, they suffered a continuing violation each time that AXA terminated their plan eligibility for failure to meet the new sales quotas. As authority for this proposition, the plaintiffs rely onBazemore v. Friday, 478 U.S. 385, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986), a case in which black agricultural workers were permitted to recover for a pattern of salary discrimination that began prior to the enactment of the civil rights laws; the Court allowed the claims because each week's discriminatory paycheck was considered to be a new and actionable wrong. The plaintiffs in this case have not alleged a continuing wrong. Although the plaintiffs may have felt the continuing effects of their ineligibility for ERISA benefits, their allegations make clear that AXA's wrongful conduct, if any, involved the decision to change the way it classified insurance salesmen. There are no allegations that, once AXA had changed its policy, it then applied the new policy in a discriminating manner among salesmen. The plaintiffs therefore have alleged one violation not several, and it must be from the date of this single violation that the plaintiffs' time for filing their claim began to run. Cf. Delaware State Coll. v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980) ("It is simply insufficient for [the plaintiff] to allege that his termination gives present effect to the past illegal act and therefore perpetuates the consequences of forbidden discrimination." (internal quotation marks omitted)).

01-03-2023

04-19-2012

https://www.courtlistener.com/api/rest/v3/opinions/2782383/

This opinion was filed for rec:ord at B'·In re Disciplinary Proceeding Against Pf~fer, No. 201,327-9 protect his client's interest, with the result that a viable settlement offer lapsed and her claim is now barred by the statute of limitations. Rather than challenge the factual basis of the Washington State Bar Association's (WSBA) three-count complaint, Pfefer's brief to this court raises arguments about due process and unconstitutional vagueness. He does not cite to any testimony, evidence, or argument that the events of his representation did not occur exactly as the hearing officer found. Our own review of the record shows the same-a knowing disregard of fundamental professional duties owed to his client and an indifference to making restitution. The WSBA Disciplinary Board (Board) unanimously recommended that Pfefer be suspended from the practice of law for six months and pay restitution to his former client in the amount of unaccepted settlement offer. We affirm, suspend Pfefer for six months, and condition his return to practice on the payment of restitution of $5,834.15 to his former client and the payment of costs and expenses to the WSBA. FACTUAL HISTORY AND MISCONDUCT In February 2006, Ana Ortiz and her minor daughter were injured in an automobile accident. Ortiz hired Pfefer to represent her and her daughter. On February 10, 2009, six days before the statute of limitations would run, Pfefer filed a complaint on behalf of Ortiz and her daughter in King County Superior Court. 2 In re Disciplinary Proceeding Against Pfefer, No. 201,327-9 The court set a trial date of July 26, 2010, a deadline of July 21, 2010 for filing a confirmation ofjoinder, and a deadline of April19, 2010 for moving to change the trial date. On the day of the April 19 deadline, Pfefer moved to continue the trial, which was reset to March 21, 2011. The amended order required that settlement/mediation be completed by February 22, 2011 and a joint confirmation ofreadiness for trial be filed by February 28,2011. A February 8, 2011 court order reminded both parties of the deadlines. Pfefer did little before these deadlines passed. He did not conduct discovery, disclose witnesses, submit the case to mediation (or move to waive it), or exchange exhibits with defense counsel. He did not meet with Ortiz or other witnesses to prepare for trial. Although reminded by a personal phone call from the superior courtjudge's bailiff, he also did not file the joint confirmation of trial readiness by the February 28, 2011 deadline. Because Pfefer did not file the joint confirmation, the case was not sent to trial. Pfefer did not inform Ortiz that her case was not proceeding to trial. On March 21, 2011, Ortiz appeared at the King County courthouse, unaware that her case had not been sent to trial. Pfefer did not appear; he was evidently in Spokane where he maintained his office. The court dismissed Ortiz's cas,e that same day because Pfefer had failed to meet the court's deadlines. 3 In re· Discipl{naty ProCeeding Against Pjefer, No. 201,327-9 On March 24, 2011, opposing counsel offered to settle Ortiz's case for $6,580.06. Pfefer did not communicate this offer to Ortiz. On March 31, 2011, Pfefer filed a motion for reconsideration. The court granted the motion, and Ortiz's case was set for a new trial date of June 13, 2011. On May 5, 2011, Pfefer filed a notice of immediate withdrawal, "effective immediately." Ass~n's Ex. A-132, at 1. Pfefer informed Ortiz of his withdrawal by leaving a phone message with one of Ortiz's friends and mailing her a copy of the notice. Ortiz attempted to file an objection in court to Pfefer's withdrawal, but it was struck for lack of proof of service. On May 19, 2011, her case was dismissed. The statute of limitations on her claim then expired. PROCEDURAL HISTORY The WSBA filed a complaint with the Board under the Rules for Enforcernent of Lawyer Conduct (ELC) 10.3, charging Pfefer with three counts of misconduct, and the case proceeded to a hearing. The hearing officer found all thr~e counts were proved: count one, that Pfefer violated Rules of Professional Conduct (RPC) 1.3 and RPC 3.2 by failing to comply with dates and deadlines set out in the May 18, 2~10 and February 8, 2011 orders and by failing to meet with Ortiz in preparation for trial; count two, that Pfefer violated RPC 1.2(a) and/or RPC 1.4 by failing to consult Ortiz regarding the settlement offer and failing to 4 In re Disciplinary Proceeding Against Pfefer, No. 201,327-9 advise her that her.case had been dismissed; and count three, that Pfefer violated RPC 1.16(c) and.( d) for making his withdrawal effective immediately in violation of court rules. The hearing officer applied the American Bar Association's Standards for Imposing Lawyer Sanctions (1991 & Supp. 1992) to determine the appropriate sanction. For all counts, the hearing officer determined that Pfefer acted knowingly. In weighing aggravating or mitigating factors, the hearing officer found that aggravating factors in ABA Standards std. 9.22(d) (multiple offenses) and std. 9.22(j) (indifference to making restitution) applied. He also found that mitigating factors in ABA Standards std. 9.32(a) (absence of prior disciplinary record) and std. 9 .32(b) (absence of a dishonest or selfish motive) applied. Finding that the aggravating and mitigating factors were in equipoise, the hearing officer recommended a six-month suspension on each count. The ~earing officer also concluded that Pfefer should pay in restitution $6,580.06, the amount of the uncommunicated settlement offer. The Board, by unanimous decision, adopted the hearing officer's findings, conclusions, and recommendation of a six-month suspension. The Board reduced the amount of restitution to $5,834.15, the "amount of the uncommunicated settlement offer less 5 In re Disciplinary Proceeding Against Pfefer, No. 201,327-9 costs directly attributable to Ortiz's case." Decision Papers (DP) at 30. It also assessed costs and expenses under ELC 13.9. Pfefer appeals to this court. ANALYSIS This court gives considerable weight to the hearing officer's findings of fact. Unchallenged findings of fact are considered verities on appeal, while challenged findings are upheld so long as they are supported by substantial evidence. Conclusions of law are reviewed de novo and are upheld if supported by the findings of fact. In re Disciplinary Proceeding Against Marshall, 160 Wash. 2d 317, 330, 157 P.3d 859 (2007). An attorney must present arguments why specific findings are not supported by the record and cite to the record in support of that argument. Simply arguing an alternative version of events or an alternative explanation will not suffice to overturn the hearing officer's conclusions. Marshall, 160 Wash. 2d at 331. Sanctions recommended to this court by a unanimous board will be upheld unless there is a clear reason for departure. In re Disciplinary Proceeding Against Sanai, 177 Wash. 2d 743, 760, 302 P.3d 864 (2013), cert. denied, i • . • . ~----U.S. ____ , 134 S. Ct. 1324, 188 L. Ed. 2d 307 (2014). 6 In re Disciplinary Proceeding Against Pfefer, No. 201,327-9 ·, !!l'ti[er 's Dut; Process !.fzguments Lack Merit Pfefer_, rather than challenging the· factual findings that support his sanction, argues that his right to due process was violated by the hearing examiner. According to Pfefer, the hearing examiner improperly considered his own (the hearing offlcer' s) knowledge and experience without the support of expert testimony in concluding that Pfefer's conduct violated the RPC. Because the hearing officer's "secret opinion" was incapable of cross-examination, Pfefer asserts he was denied due process. Resp't-Lawyer's Br. Opposing Disciplinary Bd. 's Decision at 28. ~n essen~e, Pfefer argues that expert testimony is required to establish the violations of thy RPC. We disagree . .In Burtch, we held that a hearing officer may properly refuse to qualify witnesses as experts if those witnesses lack the ability to assist the trier of fact. In re Disciplinary Proceeding Against Burtch, 162 Wash. 2d 873, 890, 175 P.3d 1070 (2008). In that case, we hel~ that the hearing officer did not err in limiting the questioning of two attorney-witnesses because there was no showing that either "lawyer had a specialty in ethics or any other specialty that would assist the trier of fact in. this case, the hearing officer, also a lawyer." Burtch, 162 Wash. 2d at 890. Pfe±~r fails to understand that hearing officers are capable of determining the facts .' and applying; the ±1:tcts and evidence of the case to the RPC and concluding whether 7 In r~DisciplindryProceeding Against P.fefer, No. 201,327-9 an attorney's conduct met the standards established by the rules. The record here contains simple documentary evidence and testimony from witnesses about the history of Ortiz's case, from which the hearing officer determines the facts and draws reasonable inferences in light of the overall testimony and evidence. See In re Disabili~y Proceeding Against Diamondstone, 153 Wn.2d 430,440, 105 P.3d 1 (2005); In re Disciplinary Proceeding Against VanDerbeek, 153 Wash. 2d 64, 82, 101 P.3d 88 (2004). We find no due process or unfairness concerns with this procedure. Pfefer also alleges that he was denied due process when the hearing officer ruled that Pfefer's law partner, Robert Caruso, could not serve both as a fact witness andas co-counsel at the disciplinary hearing. Pfefer argues that RPC 3.7 1 does not apply at disciplinary hearings because the language of the rule states that it applies only "at a trial." See Resp't-Lawyer's Br. Opposing Disciplinary Bd. 's Decision at 17. We disagree. The comments to RPC 3. 7 state that the purpose of 1 "(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless: "(l) the testimony relates to an uncontested issue; "(2) the testimony relates to the nature and value of legal services rendered in the case; "(3) disqualification ofthe lawyer would work substantial hardship on the client; or "(4) the lawyer has been called by the opposing party and the court rules that the lawyer may continue to act as an advocate. "(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9." 8 In re Disciplinary Proceeding Against Pfefer, No. 201,327-9 the rule is to protect the "tribunal" from prejudice and confusion. RPC 3.7 cmt. 3. ''Tribunal,'' as defined under the RPC, "denotes a court, an arbitrator in a binding arbitration proceeding or legislative body, administrative agency or other body acting in an adjudiCative capacity," evidenced "when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party's interests in a particular matter." RPC l.O(m). The plain language ofRPC l.O(m) and RPC 3.7 support application ofRPC 3.7 to disciplinary hearings. More fundamentally, Pfefer fails to show on this record that the hearing officer disqualified Caruso at all. Rather, he gave Pfefer a choice: either Caruso could act as advocate and cross-examine two of the WSBA's witnesses (including Ortiz) or he could testify as a fact witness. Pfefer chose the latter. The hearing officer ruled that Pfefer had the opportunity to testify in the narrative, subject to objection, and Caruso was permitted to sit at counsel's table and advise Pfefer throughout the hearing. Because the record shows that the hearing officer did not disq~Jalify Caruso from assisting Pfefer at the disciplinary hearing, we find no error. 9 In r.e. Disciplinary Proceeding Against Pfefer, No. 201,327-9 Substantial Evidence Supports the Findings o[Fact Unchallenged findings of fact are treated as verities on appeal, and we give great weight to the hearing officer's determination of credibility and veracity of witnesses. Marshall, 160 Wash. 2d at 330. Pfefer challenges only two of the hearing officer's findings of fact. After a full review of the record, we find that the findings of fact are supported by substantial evidence. Under count one, the evidence establishes that Pfefer failed to diligently pursue his client's case, in violation ofRPC 1.3 2 and RPC 3.2. 3 He waited over a year after the beginning of representation to file Ortiz's suit, during which time he performed little or no investigation or discovery. After the case was filed, Pfefer failed to comply with any of the deadlines established in the court's February 8, 2011 order requiring completion of the joint confirmation and that the case be submitted to mediation. Despite being reminded by both his paralegal and the superior court's bailiff, he failed to file the joint confirmation by the deadline of February 28, 2011 and because of this the case was dismissed. Pfefer challenges the hearing officer's finding of fact that he found it not credible that Pfefer's reason for failing to file the joint confirmation was due to some confusion about 2 "A lawyer shall act with reasonable diligence and promptness in representing a client." 3 "A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client." 10 In re Disciplinary Proceeding Against Pfefer, No. 201,327-9 local King County rules. Clerk's Papers (CP) at 201. We agree that Pfefer's conduct was not the product of confusion. Rather, the record amply demonstrates a knowing failure by Pfefer to show reasonable care in Ortiz's case by complying with simple court deadlines. We agree with the hearing officer's conclusion that Pfefer violated RPC 1.3 and RPC 3.2. Under count two, we find substantial evidence that Pfefer violated RPC 1.2(a)4 and RPC 1.4 5 by failing to consult Ortiz about the dismissal of her case and for failing to consult her regarding the settlement offer. Pfefer testified that he believed that the offer was ineffective or a sham, and for that reason he did not communicate the offer to Caruso. The hearing officer found his explanation was 4 "Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify." 5 "(a) A lawyer shall: "(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules; "(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished; "(3) keep the client reasonably informed about the status of the matter; "(4) promptly comply with reasonable requests for information; and "(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. "(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." 11 In re Disciplinary Proceeding Against Pfefer, No. 201,327-9 not credible. CP at 202. Pfefer challenges this finding. We agree with the hearing examiner. RPC 1.4 requires communication of settlement offers to clients. The "effectiveness" of such an offer is immaterial in regard to an attorney's obligation to inform the client on his or her case. Pfefer informed Ortiz neither of the substance nor the existence of the settlement offer, nor does the record show that Ortiz previously indicated that she would not accept a settlement in the amount offered. Pfefer had provided no evidence or justification in not communicating the offer to Ortiz. Similarly, Pfefer proffers no justification for not informing Ortiz that her case had been dismissed. RPC 1.4 requires an attorney to communicate with his or her client, and no excuse or reason was established for this lapse. We have previously addressed this situation and affirmed disciplinary action against an attorney who failed to honestly inform the client of the reason the court dismissed the client's case. In re Disciplinary Proceeding Against Starczewski, 177 Wash. 2d 771, 780, 306 P.3d 905 (2013) (attorney failed to inform client that case had been dismissed on procedural grounds and later told client that case had been dismissed on the merits). Pfefer's conduct violates the requirements of the RPC because he failed to inform his client that her case was dismissed at all. We agree with the hearing officer's conclusion that Pfefer violated RPC 1.2(a) and RPC 1.4. 12 In re Disciplinary Proceeding Against Pfefer, No. 201,327-9 We also uphold the charges under count three, that Pfefer violated RPC 1.16(c)6 and RPC 1.16(df by withdrawing from Ortiz's representation "effective immediately." RPC 1.16(c) permits withdrawal following notice to or permission of a tribunal but only if the lawyer "compl[ies] with applicable law.'' In this case, ·that "applicable law" is Superior Court Civil Rule (CR) 71(c)(l), which mandates that "[t]he attorney shall file and serve a Notice of Intent to Withdraw on all other parties in the proceeding. The notice shall specify a date when the attorney intends to withdraw, which date shall be at least 10 days after the service of the Notice of Intent to Withdraw." Before this 10-day period can begin to run, however, notice must first be served on the client. CR 71 (c)(2). Pfefer's notice of withdrawal, given to the court "effective immediately," violated CR 71 (c)( 1) because it failed to permit the 10-day period following filing, a period that itself cannot begin to run until service is effective, and proof of service filed, in accordance with CR 71(c)(2). The hearing officer's unchallenged 6 "A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation." 7 "Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law." 13 In re Disciplinary Proceeding Against Pfefer, No. 201,327-9 findings established that Pfefer informed Ortiz of his withdrawal only by leaving a message with a friend and mailing a copy of the notice. Pfefer argues that if he did violate CR 71, he was nonetheless in substantial compliance. Immediate withdrawal is not substantial compliance with a procedure that requires, at a minimum, 10 days' notice, especially here where Ortiz's case was facing dismissal based on Pfefer's lack of diligence in complying with the court's scheduling orders and where the statute of limitations would expire shortly after the case was dismissed. This evidence also supports the conclusion that Pfefer failed to protect Ortiz's interests in violation ofRPC 1.16(d). His immediate withdrawal, filed May 5, 2011, left his client with little chance to pursue her case. Ortiz tried to object in court, but the objection was stricken for lack of proof of service. Ortiz's case was dismissed on May 19, and the statute of limitations ran six days later. It was Pfefer' s conduct and his withdrawal "effective immediately" that caused her legal claim to be barred. We agree with the hearing officer's conclusion that Pfefer violated RPC 1.16(c) and RPC 1.16(d). Sanctions Analysis We affirm the hearing officer's and unanimous Board's recommended sanctions against Pfefer. This court applies the ABA Standards in all lawyer 14 In re Disciplinary Proceeding Against Pfefer, No. 201,327-9 discipline cases. In re Disciplinary Proceeding Against Halverson, 140 Wash. 2d 475, 492, 998 P.2d 833 (2000). Under this two-step process, the presumptive standard is first determined by considering ( 1) the ethical duty violated, (2) the lawyer's mental state, and (3) the extent of actual or potential harm caused by the misconduct. The next step is to consider the application of any mitigating or aggravating factors. In re Disciplinary Proceeding Against Dann, 136 Wash. 2d 67, 77, 960 P .2d 416 (1998) (citing In re Disciplinary Proceedings Against Johnson, 118 Wash. 2d 693, 701, 826 P.2d 186 (1992)). This court reviews sanctions de novo but will uphold a unanimous recommendation by the Board unless there is a clear reason for departure. In re Disciplinary Proceeding Against Behrman, 165 Wn.2d 414,422, 197 P.3d 1177 (2008). Pfefer has shown no reason for departure. In his sanctions analysis, the hearing officer concluded that Pfefer acted knowingly under all three counts and caused injury to Ortiz's interests and that of the legal system. We agree. Pfefer's knowing failure to diligently prosecute Ortiz's claim caused her case to be dismissed (twice) and subsequently barred by the statute of limitations. His failure to communicate the settlement offer prevented her from considering acceptance. And his means of withdrawal left his client's interests unprotected. The presumptive sanction for Pfefer's misconduct is suspension. The 15 In re Disciplinary Proceeding Against Pfefer, No. 201,327-9 hearing officer determined that ABA Standards std. 4.4 applied to counts one and two. ABA Standardsstds. 4.42(a) and (b) state that suspension is generally appropriate when "a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client" or "a lawyer engages in a pattern of neglect and causes injury or potential injury to a client." The hearing officer also determined that ABA Standards std. 7.0 applied to count three. Under that standard, "[s]uspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal system." ABA Standards std. 7 .2. We agree with this determination. The second step under the ABA Standards is to consider any mitigating or aggravating factors. The hearing officer found two aggravating factors 8 and two mitigating factors 9 present. We agree with this determination. Pfefer does not argue that his sanction is disproportionate, nor would we find it to be so in this case. Pfefer also argues that the amount of restitution should be reduced to reflect his firm's costs but fails to support his argument with any explanation on why such costs are borne by his firm and not by Ortiz. The Board, based on the evidence and 8 ABA Standards std. 9.22(d) (multiple offenses), (j) (indifference to making restitution). 9 ABA Standards std. 9.32(a) (absence of prior disciplinary record), (b) (absence of dishonest or selfish motive). 16 In re Disciplinary Proceeding Against Pfefer, No. 201,327-9 argument from Pfefer, reduced the amount of restitution from $6,580.06 to $5,834.15 in order to reflect costs attributable to Ortiz's case. We find that no further reduction is appropriate and affirm restitution in the amount of $5,834.15. WSBA Costs Finally, Pfefer objects to the costs and expenses assessed against him by the chair of the disciplinary board (Chair) under ELC 13.9(a). The WSBA filed a statement of costs and expenses, as required under ELC 13.9(d), listing five headings and the costs associated with each. 10 Pfefer had 20 days from the date of service to file exceptions. ELC 13.9(d)(4). Two days before the deadline, Pfefer filed a blanket objection "to all costs stated by disciplinary counsel as no documentation supports any of these costs." DP at 98. The WSBA had 10 days to reply. ELC 13.9(d)(5). Although not strictly required by the rules, the WSBA provided detailed receipts of all charges. Ten days later the Chair entered the costs under ELC 13.9(e), finding the costs and expenses appropriate. The day after the Chair entered the costs, Pfefer filed a supplemental 10 (1) "Court reporter charges for attending and transcribing depositions or hearing" in the amount of$4,463.15, (2) "Necessary travel expenses ofhearing officers, disciplinary counsel, investigators, adjunct investigative counsel, adjunct trial counsel or witnesses for both investigation and prosecution" in the amount of$1,254.67, (3) "Special mail or delivery charges" in the amount of $10.07, (4) "Other: translation services and court records" in the amount of $1,102.90, and (5) "Expenses under ELC 13.9(c)" in the amount of$3,000. DP at 97. The total claimed is $9,830.79. 17 In re Disciplinary Proceeding Against Pfefer, No. 201,327-9 objection. His supplemental objections challenged virtually every expense, objecting to, for example, mileage reports for disciplinary counsel, 11 lunch expenses, parking, the use of in person questioning of witnesses at the disciplinary hearing instead of performing the hearing telephonically, document fees, and interpreter's services. The Chair did not consider Pfefer's supplemental objections, concluding they were too late. We agree with the WSBA that Pfefer's supplemental objections were untimely. Independently, we have reviewed the costs and expenses assessed against Pfefer and find that all costs were "reasonably and necessarily incurred" by the WSBA pursuant to ELC 13.9(b). CONCLUSION The record amply demonstrates that Pfefer knowingly failed to provide his client with the representation required by the RPC, resulting in injury to his client. Clients expect, and RPC establish, due diligence by attorneys: Pfefer showed little. We adopt the Board's unanimous recommendation, suspend Pfefer from the practice of law for six months, and condition his reinstatement on his payment of 11 Pfefer's supplemental motion to take judicial notice of the distance between the cities of Burien and Seattle is denied. 18 In re Disciplinary Proceeding Against Pfefer, No. 201,327-9 restitution to Ortiz for $5,834.15 and the costs and expenses assessed against him under ELC 13.9. WE CONCUR: -~~ l c --+·CJ_;;__.- / td1~~-- / 19

01-03-2023

02-26-2015

https://www.courtlistener.com/api/rest/v3/opinions/2280248/

64 Cal. App. 4th 1506 (1998) KATHY V. JOVINE, Plaintiff and Appellant, v. FHP, INC., et al., Defendants and Respondents. Docket No. B105314. Court of Appeals of California, Second District, Division Three. June 24, 1998. *1508 COUNSEL Daniel Romano and Kenneth H. Moss for Plaintiff and Appellant. Heller, Ehrman, White & McAuliffe, Deborah C. Saxe and John P. LeCrone for Defendants and Respondents. OPINION CROSKEY, J. This is a case about due process of law. Plaintiff Leo Baumohl[1] appeals from a summary judgment entered in favor of his employer, FHP, Inc. (FHP), and his supervisor, Charles Kiskaden (Kiskaden; collectively, defendants) after the trial court confirmed and adopted the decisions of a court-appointed referee on three motions for summary adjudication filed by the defendants. *1509 Our review of the appellate record demonstrates that the trial court's reference of such law and motion matters was not authorized by either statute or the consent of the parties and amounted to an improper delegation of judicial power. We therefore shall reverse the judgment without reaching or discussing the merits of defendants' summary adjudication motions. Whether right or wrong, the parties on each side of a dispositive motion are entitled to have the issues fully considered and resolved by the trial court and, in the absence of a proper stipulation, the responsibility to decide cannot be delegated irrespective of the burdens imposed by the court's pending caseload. FACTUAL AND PROCEDURAL BACKGROUND[2] This case arises out of the termination of plaintiff's employment by FHP in September 1993. On February 6, 1995, plaintiff filed his second amended complaint which is the operative pleading before us. It has eight causes of action: (1) breach of implied contract, (2) breach of the covenant of good faith and fair dealing, (3) violation of Labor Code section 1050,[3] (4) defamation, (5) wrongful termination in violation of public policy, (6) intentional infliction of emotional distress, (7) negligent infliction of emotional distress, and (8) interference with contractual relations. FHP is a health care provider and plaintiff, who was hired in August of 1989, worked in the corporate marketing department. Plaintiff alleges that in the course of his employment, he became aware of certain "illegal" advertising practices by an advertising agency used by FHP. One of the employees of that agency was the husband of one of FHP's high level executives. Plaintiff claims that this conflict of interest created a hostile work environment whereby FHP employees, including plaintiff, were coerced to use that particular agency or risk losing their jobs and were abused by the personnel of that agency. In addition, FHP paid exorbitant invoices submitted by the agency over the objection of FHP employees, including plaintiff. Top executives of the advertising agency were allowed to participate in confidential meetings of FHP's executive committee and received access to inside information which, plaintiff claims, allowed them to illegally make profits on stock trades in violation of federal insider trading laws. *1510 Plaintiff alleges that when he reported such activities to his superiors they took no action.[4] Instead, plaintiff himself was wrongfully accused of participating in illegal activities, misusing company funds, creating fictitious invoices and engaging in acts of sexual harassment. He claims he was made the target of a campaign designed to force him to resign, all despite exemplary performance reviews. When he refused to give up his job, plaintiff was fired and, he alleges, false records were generated, designed to demonstrate that his termination was for cause. Many of the false charges set out in those records were published and repeated by FHP officials both internally and to third parties outside of FHP. In response to these allegations, the defendants filed a demurrer to the sixth and seventh causes of action for emotional distress. This demurrer was sustained without leave to amend.[5] Defendants answered the balance of the causes of action in plaintiff's complaint with a general denial and the assertion of a number of affirmative defenses. In essence, it was and is the position of the defendants that plaintiff is nothing more than a disgruntled former employee who has no legal or factual basis for his claim for wrongful discharge and related causes of action. For example, defendants allege that plaintiff's employment was at will and every employment application, employee manual and relevant correspondence received, signed or approved by plaintiff all expressly confirm and acknowledge such fact. In addition, defendants assert that there can be no wrongful discharge claim as plaintiff was not fired in violation of any fundamental public policy. Defendants similarly dismiss the balance of plaintiff's causes of action as unsupported by the evidence and/or the applicable law. Prior to the making of the court orders which are central to this appeal, plaintiff and the defendants engaged in extensive discovery proceedings. Apparently, acrimony developed not only between the parties, but also between counsel. This circumstance contributed to repeated discovery disputes which were presented to the trial court. On June 7, 1995, the court had before it the motion of the defendants for a protective order and for imposition of sanctions against both plaintiff and his counsel. At the same time, the court had on calendar the motion of plaintiff to compel attendance at a deposition of defendants' custodian of records together with the production of certain records. What happened at that hearing is central to our resolution of this appeal. After listening to the arguments of counsel on the relative merits of plaintiff's motion to compel attendance of defendants' custodian of records, the court expressed understandable frustration: *1511 "The Court: You lawyers really think we haven't got anything to do but resolve nonsense like this. Get together, meet and confer, set a date, set the deposition and produce the custodian. "[Defendants' Counsel]: I am willing to produce the custodian. "The Court: Don't try this kind of stuff in here. Call each other up on the phone and resolve it. "[Plaintiff's Counsel]: We called each other numerous times. There is [sic] numerous letters. "The Court: Well, set the deposition for another date. You knew she was in trial and couldn't appear. "[Plaintiff's Counsel]: This is a dispute over what happened after she came back from trial. "The Court: Look, get together, meet and confer, and resolve this because the next time you come in here on this issue of something [sic] not being available, not appearing at deposition, somebody is going to pay for it." The court then turned its attention to the defendants' motion for a protective order. Defendants were seeking to limit the number of plaintiff's requests for admissions. Plaintiff had propounded 212 requests and defendants wanted a limit of 35. The court listened to counsel's argument and then reminded plaintiff that the court had previously "suggested" that plaintiff voluntarily limit the number of his requests. The following then transpired: "The Court: And the force behind that suggestion was if I couldn't get you to agree I was going to send the whole thing to a referee. "[Defendants' Counsel]: Yes. "The Court: I didn't order him to limit anything because I can't do that. I don't know that much about the case. I did not know then and I don't know now whether he needs to have every one of those things answered, and I didn't want to have to go through and pick over all of the requests. And I was suggesting that perhaps you get together and work it out. It seems to me that you could have at least answered some of them." The court then indicated that it was willing to assume that plaintiff had a good faith basis for making his discovery request until the contrary was demonstrated. The following exchange then took place: *1512 "The Court: I am going to make that assumption. [¶] The initial request for a protective order is denied, and what I am going to do, I think I am going to send this to a referee because — unless I can get some indication from counsel that you are going to take off the gloves and pick up the phone and just talk to each other. "[Defendants' Counsel]: We have tried that, Your Honor. "The Court: Well, doesn't seem to be working. "[Defendants' Counsel]: Mr. Romano refuses to deal with me. He — "The Court: I know. I know. I know. "[Defendants' Counsel]: There aren't a lot of options. "The Court: You don't want to deal with her? You don't like her? "[Plaintiffs' Counsel]: Your Honor, they're misrepresenting to the court time and time again. I signed a statement — I submitted to you a declaration, a letter — ... [¶].... "The Court: Hold it. Hold it. Hold it. [¶] I don't want to get into this back and forth. I'm going to send this to a referee and the referee will work it out. That way I can spend my time on other things. [¶] Let's send this to Judge Nelson. Do you have any suggestions who you wish to go to? "[Plaintiff's Counsel]: No, Your Honor. "The Court: All right, good. Send it to Judge Nelson.[[6]] "[Defendants' Counsel]: Are the fees split between the parties, Your Honor? "The Court: Yes. "[Plaintiff's Counsel]: Your Honor, may I ask the court give discretion to Judge Nelson to award fees in accordance — *1513 "The Court: Yes. I will do that. Let's give discretion to the referee, let him make the judgment. "[Plaintiff's Counsel]: Thank you, Your Honor. "The Court: All right. So, the motion for protective order is denied and this matter is — it appears to me that the interest of the efficiency of justice will be best served by appointing a special referee to handle this pursuant to section 639e of CCP. It's ordered that Judge Nelson, who is a retired judge — what is the phone number? "The Clerk: I'll have to look it up, Judge. "The Court: All right. Well, give one of them a copy, give it to me and I'll sign it. [¶] Anyway, the special referee shall have the power to set the date, time and place of all hearings necessary as agreed upon by the parties, or in the event no agreement can be reached the special referee shall fix the date, time and place of such hearings. He also has the power to direct issuance of subpoenas, preside over hearings, take evidence, rule on objections, motions, and other requests made before, during and after hearing with the same powers if the court were to preside, except any power of contempt, which is exclusively reserved to this court. [¶] And there are other orders that are in this document, and you will be — fill one out and give one to each counsel. And this matter then be handled by Judge Nelson. [¶] All right. Thank you very much." It appears from this discussion that the court may have had a form order already prepared which, when the names of the referee and counsel were known, was simply completed and handed to counsel. Although this is not entirely clear, it appears reasonable to conclude that the trial court made such references on a routine basis. Whatever the efficacy of that conclusion, however, two points are made very clear by the actual written order signed by the court on the same day, June 7, 1995. First, the appointment of a referee was purportedly made pursuant to Code of Civil Procedure, section 639, subdivision (e),[7] and second, the written appointment order went well beyond the scope of that statutory authority. The order, which was entitled, "Order Appointing Special Referee to Supervise, Hear and Determine Discovery Matters [639(e) C.C.P.]," provided in part: *1514 "It appears that the interests of justice and efficiency will be best served in this matter by appointment of a Special Referee pursuant to Section 639(e) of the Code of Civil Procedure. "It is therefore ordered that Henry P. Nelson, Retired Judge of the Los Angeles Superior Court, ... is hereby appointed Special Referee in this action for the purpose of supervising, hearing, and determining any and all motions and disputes relating to discovery/law and motion, including Motion(s) for Summary Judgment."[8] (Italics added.) Shortly after the appointment of the referee, the defendants proceeded to bring three successive motions for summary adjudication.[9] The first was heard by the referee on November 9, 1995 and related solely to the first and second causes of action in plaintiff's complaint relating to his contract claims. In essence, defendants asserted that the undisputed evidence demonstrated that plaintiff was an "at-will" employee and thus, as a matter of law, could not recover for either breach of contract or breach of the implied covenant. The evidence supporting this contention consisted of correspondence between plaintiff and FHP, in which it was recited that plaintiff "understood" that his employment would be "at-will," and the provisions of the Employee Policies and Procedures Manual, which recites that the employment of all employees was at will. Plaintiff did not dispute the correspondence nor his awareness of the provisions of the manual, but countered that such evidence did not establish all of the terms of his employment. He *1515 presented evidence the employment agreement included the provision that he would only be terminated in accordance with the four-step disciplinary procedures spelled out in the manual, but which were not followed in his case. Nonetheless, on November 13, 1995, the referee issued a written order purporting to grant the defendants' motion and to dismiss plaintiff's first and second causes of action with prejudice.[10] Plaintiff did not file any objection with the trial court to this order by the referee, although he does argue that he is nonetheless permitted to attack such order because the original reference order was void.[11] On March 4, 1996, the second of the three summary adjudication motions was heard by the referee. This motion by the defendants attacked the third, fourth and eighth causes of action of plaintiff's complaint: (1) Defendants contended that there was no admissible evidence that they had made any misrepresentation about plaintiff following the termination of his employment which prevented (or attempted to prevent) plaintiff from obtaining employment in violation of Labor Code section 1050 (third *1516 cause of action). Plaintiff presented evidence that he lost out on four employment opportunities following his termination as the result of false statements about him and his activities at FHP, which statements he claimed were made and broadcast by FHP officials; (2) Defendants also argued that there was no admissible evidence that any of the defendants had made defamatory statements about plaintiff or, if they did, such statements were conditionally privileged (fourth cause of action). Plaintiff countered with evidence that many false statements had been made about him and that the defendants were liable therefore either directly or under the doctrine of respondeat superior and that no privilege was applicable because defendants had acted maliciously; (3) Finally, defendants asserted that the defendant Kiskaden could not be held liable for interference with plaintiff's employment by FHP because he was an employee of FHP and at all times he was acting within the course and scope of that employment; thus, his acts were those of FHP and one party to a contract cannot interfere with or induce a breach of that contract (eighth cause of action). Plaintiff ignored the principle of law underlying defendants' argument and simply argued that the evidence of Kiskaden's actions demonstrated a design and intent to terminate plaintiff's employment. The referee, on March 20, 1996, ruled in defendants' favor as to all three causes of action, again finding that plaintiff did not have a viable claim. He granted defendants' motion and ordered the dismissal with prejudice of plaintiff's third, fourth and eighth causes of action.[12] On March 7, 1996, after the referee had heard defendants' second motion for summary adjudication, but before he had filed his March 20 ruling *1517 thereon, plaintiff filed an ex parte application with the trial court to modify the original reference order of June 7, 1995. Plaintiff requested that the order be modified to preclude the referee from hearing or deciding any summary judgment motions. The court denied the motion on March 8, 1996, essentially on the grounds that plaintiff had agreed to the reference and had not acted with reasonable diligence in raising objections to the hearing of dispositive motions by the referee.[13] Finally, on March 25, 1996, the referee heard defendants' third motion for summary adjudication which was directed at the last remaining cause of action, the fifth, in which plaintiff had alleged his tortious wrongful discharge claim. Defendants based their motion on the contention that plaintiff had presented no admissible evidence establishing that he was terminated in violation of any statute designed to protect or promote a fundamental public policy, and therefore no cause of action would lie. Plaintiff responded with evidence that FHP officials had engaged in activity which was either unlawful, represented a serious conflict of interest, violated shareholder interests or enabled violations of various federal securities laws. Plaintiff claimed that he acted as a "whistleblower" and that was what caused his termination and that, as a result, he was entitled to have his case presented to a jury. These were the arguments which plaintiff presented in his opposition papers filed with the referee; however, he did not personally attend the hearing on defendants' motion which the referee held on March 25, 1996. He declined *1518 to attend in protest of the referee's assertion of authority under the reference order of June 7, 1995.[14] On April 2, 1996, plaintiff filed objections to the referee's second ruling granting a summary adjudication to plaintiff's third, fourth, and eighth causes of action. In this pleading, plaintiff raised for the first time a formal direct objection to the appointment of a referee to hear motions for summary judgment. Plaintiff argued that the reference order was not valid and asked for a hearing before the trial court on defendants' summary adjudication motions. As we discuss below, the trial court denied this request on May 3, 1996. Also on April 2, 1996, the referee signed and filed his third and final order granting defendants' motion for summary adjudication as to plaintiff's fifth cause of action. The referee ordered that plaintiff's last remaining cause of action be dismissed with prejudice.[15] *1519 Following receipt of the referee's order of April 2, plaintiff again filed objections to the referee's authority to make such an order and requested a full hearing before the trial court on the defendants' several motions for summary adjudication. The court granted a hearing on the issues raised by plaintiff's objections to the referee's authority, and that hearing was held on April 12, 1996. Plaintiff argued that the appointment of a referee to hear law and motion matters, including summary judgment motions, amounted to a general reference which could not be done without the parties' consent. That is, that the reference order of June 7, 1995, to the extent that it authorized the referee to hear defendants' three summary adjudication motions, went beyond the court's jurisdiction and was therefore void from the inception. After hearing counsel's comments and argument, the court took plaintiff's request and objections under submission.[16] *1520 Thereafter, the court, on May 3, 1996, issued a minute order entitled "Ruling on Orders Granting Defendant FHP's Motions For Summary *1521 Adjudication Filed March 20, 1996 and April 2, 1996." In that order,[17] the court confirmed, approved and adopted the findings and orders of the referee as the findings and orders of the court. On June 13, 1996, the court signed and filed a final judgment in accordance with the findings and orders made by the referee. Plaintiff has filed this timely appeal. ISSUES PRESENTED Although the parties extensively argue both the procedural and substantive merits of the summary judgment entered in defendants' favor on plaintiff's second amended complaint, we will focus only on the procedural questions which have been raised. The first is whether the trial court's reference of this matter to a designated referee under Code of Civil Procedure section 639, subdivision (e), without the express written consent of both parties, empowered the referee to hear and (effectively) determine the motions for summary adjudication filed by the defendants. The second question is whether plaintiff's failure to object to such reference until after the referee had heard (but not decided) the second of defendants' three motions now precludes him from raising the issue. As we explain below, we answer both of those questions in the negative. DISCUSSION 1. General and Special References A reference by the trial court involves the sending of a pending action or proceeding, or some issue raised therein, to a referee for hearing, determination and report back to the court. The procedure is most commonly employed where complicated accounts can more conveniently be examined or taken outside of court, and to resolve discovery disputes or certain types of family law issues. (See generally, 6 Witkin, Cal. Procedure (4th ed. 1997) Proceedings Without Trial, § 58, p. 457; De Guere v. Universal City Studios, Inc. (1997) 56 Cal. App. 4th 482, 496-497 [65 Cal. Rptr. 2d 438].) *1522 The Code of Civil Procedure[18] provides for two types of reference. A "general" reference is conducted pursuant to section 638, subdivision (1),[19] which authorizes the trial court to refer any or all issues to a referee for trial and determination, provided that the parties have agreed thereto in an agreement filed with the clerk or judge or entered in the minutes or docket. (De Guere v. Universal City Studios, Inc., supra, 56 Cal. App.4th at pp. 496-497; Ruisi v. Thieriot (1997) 53 Cal. App. 4th 1197, 1208 [62 Cal. Rptr. 2d 766].) Such agreement of the parties is required in order to comport with the constitutional prohibition against delegation of judicial power. (Ruisi v. Thieriot, supra, 53 Cal. App.4th at p. 1208.) The finding and determination of the referee upon the whole issue must stand as the finding of the court and judgment may be entered thereon in the same manner as though the matter had been tried by the court. (§ 644; Estate of Bassi (1965) 234 Cal. App. 2d 529, 536 [44 Cal. Rptr. 541].) A "special" reference is one conducted pursuant to section 639. The findings of the referee are advisory only, and do not become binding unless adopted by the court; the court must independently consider the referee's findings before acting. (Ruisi v. Thieriot, supra, 53 Cal. App.4th at p. 1208.) The consent of the parties is not required; however, such nonconsensual reference is authorized under section 639 only in certain specified circumstances: "(a) When the trial of an issue of fact requires the examination of a long account on either side; in which case the referees may be directed to hear and decide the whole issue, or report upon any specific question of fact involved therein. [¶] (b) When the taking of an account is necessary for the information of the court before judgment, or for carrying a judgment or order into effect. [¶] (c) When a question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of the action. [¶] (d) When it is necessary for the information of the court in a special proceeding. [¶] (e) When the court in any pending action determines in its discretion that it is necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon." (§ 639.) This statutory scheme carefully preserves the distinction which must be maintained between general and special references in order to comply with *1523 the constitutional mandate regarding the delegation of judicial power. (1) "[A] general reference has binding effect, but must be consensual, whereas a special reference may be ordered without consent but is merely advisory, not binding on the ... court. [Citations.]" (Aetna Life Ins. Co. v. Superior Court (1986) 182 Cal. App. 3d 431, 436 [227 Cal. Rptr. 460].) 2. The Trial Court's Reference in This Case Was Beyond Its Authority (2a) The record clearly discloses that the trial court purported to make a reference under section 639, subdivision (e). The reference was made in the context of a discovery dispute which was apparently both prolonged and acrimonious. There is nothing in the record, other than one phrase in the court's written order, which made any reference to matters other than discovery issues. It certainly was not discussed with counsel at the time that the court decided to make the reference; and the written order itself bore the title: "Order Appointing Special Referee to Supervise, Hear and Determine Discovery Matters [639(e) C.C.P.]" (Italics added.) The trial court plainly decided to send the case to a referee to resolve pending discovery matters. However, shortly after the reference, the referee commenced to hear and determine three separate summary adjudication motions which effectively disposed of plaintiff's case. Without plaintiff's consent, the trial court had no authority to make a general reference. (Ruisi v. Thieriot, supra, 53 Cal. App.4th at p. 1208; Murphy v. Padilla (1996) 42 Cal. App. 4th 707, 714 [49 Cal. Rptr. 2d 722].) Hearing, considering and deciding dispositive motions is not one of the special references authorized by section 639 which the court may make without consent. Clearly, plaintiff did not consent to a general reference. There certainly was no written agreement to that effect nor does the record reflect any agreement to a general reference entered in the court's minutes or docket.[20] The only power the court had, therefore, was to make a special reference under section 639. However, such power is limited to those specific matters set out in that section. "The trial court has no authority to assign matters to a referee ... for decision without explicit statutory authorization. [Citations.]" (Ruisi v. Thieriot, supra, 53 Cal. App.4th at p. 1208, fns. omitted, italics added.) Concededly, as we have already noted, hearing and ruling upon a summary judgment motion is not "explicitly authorized" by the statute. We cannot distinguish this case from Aetna Life Ins. Co. v. Superior Court, supra, 182 Cal. App. 3d 431. That matter involved an action between an *1524 insurance company and its insured for tortious breach of an insurance contract where the trial court assigned all law and motion summary judgment proceedings to a referee without the written consent of the parties. After the referee granted the insured's motion for summary adjudication of certain coverage issues, the insurer sought a writ. In making the assignment, the trial court, as in the case here, had relied on section 639[21] and specified in its order that the referee was a "special" referee. The order required the referee "to report findings and make recommendations to the court within ten (10) days following the determination of each motion." After the referee's written report had been submitted to the court, the insurer asked the trial court to treat the referee's findings (which stated that relevant policy exclusionary language was ambiguous) and conclusion (that coverage was not excluded by the policy) as advisory and set a hearing on the referee's report. The court denied this request and ordered that the findings and conclusion of the referee were without substantial controversy and "`shall be deemed established.'" (182 Cal. App.3d at p. 435.) On the insurer's petition, the Aetna Life court issued a writ of mandate. The court noted that the reference order purported to be a special reference. "Yet, the superior court treated the referee's findings and conclusions of law as binding and determinative of the issue. No rehearing procedure was provided and there is no evidence the superior court judge who made the final order ever considered the matter himself, independently of the referee's decision. He simply entered judgment on the referee's report as though it were a binding decision of the court itself. Yet, as we have stated, the reference was not a consensual general reference, the record being wholly lacking in any evidence of a written agreement of the parties to such a binding general reference. We view this action as an abdication of judicial responsibility not authorized by law and contravening the constitutional restrictions upon the exercise of judicial power." (182 Cal. App.3d at p. 436, italics added.) The trial court in this case did essentially the same thing. After receiving the referee's written reports granting defendants' three summary adjudication motions, and ordering dismissal of plaintiff's several causes of action with prejudice, it held a hearing but only on plaintiff's objection to the reference process. On April 12, 1996, the court listened to counsel's argument on the question of whether the original reference order of June 7, 1995 (to the *1525 extent that it purported to authorize the referee to hear and determine summary judgment motions) had exceeded the court's authority. It is clear from the record that this was not a de novo hearing on defendants' original motions, but only a hearing on (1) plaintiff's objections to the process and (2) the question of whether the trial court should conduct a hearing on defendants' motions. The court took these issues under advisement and three weeks later issued a minute order in which it "confirmed, approved and adopted" the findings and orders of the referee as the findings and orders of the court. While it is true that the court's minute order recited that the court had "carefully read and considered the documents submitted on the motions and the orders and the objections filed thereto," it is not at all clear that the court actually conducted a de novo review of the defendants' motions and plaintiff's opposition thereto. Indeed, reading the record as a whole, the inference which we feel compelled to draw is that it did not do so, but rather simply adopted the referee's reports as its own. At the very least, the trial court's actions in this matter give the appearance of an unconstitutional delegation of judicial power and abdication of judicial responsibility. If the trial court actually engaged in a de novo review, consideration and resolution of defendants' motions, then it owed to the parties, and to any reviewing court which later might be called upon to consider the case, the obligation to ensure that the record clearly so reflected.[22] Given the state of this `record, and all of the circumstances of the case which we have exhaustively described, we are unwilling to assume that defendants' motions were independently considered and decided by the trial court.[23] We thus reject defendants' principal argument that the recitations in the court's order of May 3, 1996, distinguish this case from Aetna Life. As did the reviewing court in that case, we conclude that the reference here for the purpose of hearing and determining summary judgment motions was beyond the trial court's authority. *1526 3. Plaintiff Did Not Waive Nor Is He Estopped to Assert His Right to Object to the Reference Defendants argue that plaintiff's failure to initially object to the court's June 7, 1995 reference to Judge Nelson, and his failure to raise any objection to the actions of the referee until March 7, 1996, amounted to an acquiescence in, or agreement to, the court's order, and constituted a waiver of any right to assert the objections raised by this appeal. They also argue that, by virtue of his acts and omissions, plaintiff should be estopped to assert such objections. At the very least, defendants argue, plaintiff should be bound by his counsel's off-the-record consent to the assignment to Judge Nelson of the first of the defendants' three summary adjudication motions. We reject each of these arguments. First, the record is clear that at the hearing where the trial court announced its decision to send the matter to a referee, both the context and purpose of the trial court's action was to facilitate the resolution of pending discovery disputes. Indeed, the trial court, both in its statements on the record and in the title of its written order, indicated that this was a special reference under section 639, subdivision (e). There was no reason for the plaintiff to raise any objection. As his counsel argued, both below and to this court, "plaintiff had no objection" to a special reference of discovery issues. Both the defendants and the trial court, in its March 8, 1996, order denying plaintiff's ex parte application to modify the order of June 7, 1995, make much of the trial court's statement on June 7: "Let's give discretion to the referee, let him make the judgment."[24] We find the reliance on this isolated statement to be, at a minimum, disingenuous. The record plainly demonstrates that the quoted remark was made in response to plaintiff's questions about the scope of Judge Nelson's authority to award fees and sanctions against defendants for their failure to make discovery. The trial court was not purporting to give the referee the power to make or render a judgment, but rather was simply confirming that the award of fees or sanctions for discovery abuse would be left to Judge Nelson's "judgment," that is, to his discretion.[25] Second, any general reference to a referee without plaintiff's written or on-the-record oral consent is an act in excess of the trial court's jurisdiction. *1527 (Ruisi v. Thieriot, supra, 53 Cal. App.4th at p. 1208; Murphy v. Padilla, supra, 42 Cal. App.4th at p. 714.) Section 638 very clearly requires a written agreement to a general reference, or at least an agreement made in open court which is entered in the minutes or docket of the court. Neither the statutory language nor any case authority which we have been able to discover recognizes that such agreement may be "implied," or accomplished "de facto," as the trial court sought to do in this case. In addition, as we explain below, we reject defendants' argument that plaintiff's off-the-record consent to the referee hearing defendants' first summary adjudication motion was effective to give the referee the power to hear that motion or the other two which followed; such off-the-record consent did not operate as a waiver of plaintiff's right to object to the general reference or as the basis for an estoppel to assert such right.[26] (3) It is well settled that "`"Waiver always rests upon intent. Waiver is the intentional relinquishment of a known right after knowledge of the facts. [Citations]. The burden, moreover, is on the party claiming a waiver of a right to prove it by clear and convincing evidence that does not leave the matter to speculation, and `doubtful cases will be decided against a waiver.'"' [Citations.]" (DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe & Takeout III, Ltd. (1994) 30 Cal. App. 4th 54, 60 [35 Cal. Rptr. 2d 515].) "The pivotal issue in a claim of waiver is the intention of the party who allegedly relinquished the known legal right." (Ibid.) While it is true that this record presents some evidence of an intent on the part of the plaintiff to relinquish his right to assert a lack of compliance with section 638, it is at best equivocal and anything but clear and convincing. However, our rejection of defendants' claim of waiver does not rest on the quantum of evidence supporting that claim, but rather on public policy grounds. *1528 (4) The doctrine of estoppel is made up of four elements: "`(1) the party to be estopped must be apprised of the facts; (2) [it] must intend that [its] conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) [the other party] must rely upon the conduct to [her] injury.' [Citations.]" (Cole v. City of Los Angeles (1986) 187 Cal. App. 3d 1369, 1374 [232 Cal. Rptr. 624]; see also Hair v. State of California (1991) 2 Cal. App. 4th 321, 328-329 [2 Cal. Rptr. 2d 871].) In this record, we can find no evidence of any detrimental reliance by defendants on plaintiff's failure to make a more timely objection to the referee's hearing and con- sideration of defendants' dispositive motions. There was no change of position by defendants. Their preparation and presentation of the motions prior to plaintiff's initial objection papers (filed on March 7, 1996) were no different than would have been the case had plaintiff asserted the objection earlier. Plaintiff's off-the-record consent to the referee's consideration of defendants' first motion apparently took place after defendants had already prepared, filed and calendared that motion. Certainly, there is nothing in this record to reflect that defendants in any way detrimentally relied or acted upon the referee's single ruling made prior to plaintiff's initial objections on March 7, 1996. However, as we do with defendants' waiver argument, we reject the application of estoppel to bar plaintiff's objection to the general reference not simply because there is no substantial evidence to support it, but also, and more significantly, because important public policy considerations compel such a result. In evaluating defendants' contentions regarding waiver and estoppel it is useful to distinguish this case from In re Horton (1991) 54 Cal. 3d 82 [284 Cal. Rptr. 305, 813 P.2d 1335]. In that case, the Supreme Court held that the actions of an attorney for a criminal defendant in trying the case before a commissioner, without first obtaining a formal written consent to such commissioner signed by the defendant, amounted to a "tantamount stipulation" sufficient to satisfy the constitutional requirement that a temporary judge must be authorized to try the case. The holding in Horton was based on the following circumstances. First, defense counsel in Horton had the authority to stipulate to all procedural matters, including a trial before a commissioner, and did so stipulate. (Id. at pp. 90-91, fn. 2, 92-95.) Second, the statutory scheme (§ 259) provided that the constitutionally recognized position of "temporary judge" (Cal. Const., art. VI, § 21) may be filled by a commissioner appointed for that purpose. Third, in Horton, both counsel intended that defendant's trial be conducted by the commissioner and the execution of a written consent by the defendant was inadvertently overlooked.[27] Fourth, defendant's attorney fully participated in and vigorously *1529 tried the case before the commissioner and no objection was raised to such procedure until after defendant had been found guilty, and then not by direct attack on appeal but by collateral attack through a petition for habeas corpus. Here, we have no such circumstances. First, while it is true that an attorney has the power to consent to procedural matters,[28] here, unlike in Horton, the statutory scheme is very specific as to the nature and method by which a party must consent to a general reference. Such consent must be in writing and filed with the clerk or, if oral, the consent must be entered on the record. There is no claim that such statutory requirements were followed or even attempted in this case. Second, no statute provides that privately-paid referees may be appointed, absent the statutorily specified consent, to fill the constitutionally recognized position of temporary judge. (Cf. §§ 259, 638 & 639; see also Cal. Rules of Court, rule 244(a).) Third, there is no evidence in this record that either party had any intention of agreeing to a general reference. Instead, the evidence shows that the parties understood only that a referee would be appointed under section 639, subdivision (e), to resolve a discovery dispute. Thus, unlike the absence of the defendant's formal written stipulation in Horton, the absence of plaintiff's counsel's written agreement or oral consent entered on the record to a general reference was not because an intended consent was inadvertently omitted, but because (1) the reference was framed as the kind of reference which did not require such an explicit consent, and (2) the trial court therefore never had reason to request, nor the parties reason to grant, the requisite consent. Finally, unlike the defendant's attorney in Horton, plaintiff's counsel did not vigorously litigate the case on its merits and wait until after he had lost the case before objecting to the referee's adjudication of the nondiscovery motions; instead, he repeatedly voiced his objections to the trial court after the referee had ruled on the first of the three motions for summary adjudication, and again on direct appeal.[29] Even if there were a factual basis for the application of waiver or estoppel, we would not apply them to the circumstances presented by this case. *1530 (5) While it is true that, "[w]hen ... the court has jurisdiction of the subject, a party who seeks or consents to action beyond the court's power as defined by statute or decisional rule may be estopped to complain of the ensuing action in excess of jurisdiction [] [Citations.]" (In re Griffin (1967) 67 Cal. 2d 343, 347 [62 Cal. Rptr. 1, 431 P.2d 625]), it is also true that, "[w]hether he shall be estopped depends on the importance of the irregularity not only to the parties but to the functioning of the courts and in some instances on other considerations of public policy. A litigant who has stipulated to a procedure in excess of jurisdiction may be estopped to question it when `[t]o hold otherwise would permit the parties to trifle with the courts.' [Citation.] On the other hand waiver of procedural requirements may not be permitted when the allowance of a deviation would lead to confusion in the processing of other cases by other litigants. [Citation.] Substantive rules based on public policy sometimes control the allowance or disallowance of estoppel." (Id. at p. 348, italics added.)[30] Here, as already noted, plaintiff did not wait until all that remained was a collateral attack, nor, for that matter, did he even wait until he filed this *1531 appeal to raise the issue of the referee's right to determine dispositive motions in addition to discovery matters. Instead, he objected in the trial court, and he did so prior to the time that the referee announced his ruling on defendants' second motion or had heard or considered defendants' third motion. His objections provided ample opportunity and notice to the trial court to enable it to conduct a proper independent review and consideration of the defendants' three summary adjudication motions. Thus, it cannot be concluded that plaintiff's actions amounted to a "trifling" with the judicial system. More significantly, to ratify, on the grounds of either waiver or estoppel, the general reference made by the trial court in this case would effectively undermine two important public policies: (1) the constitutional prohibition on improper delegation of judicial power, and (2) the principle that the courts are open to litigants and the cost of operating them is borne as a public expense as they are an integral and essential part of our democratic form of government. Allowing trial courts routinely to shift their responsibilities to private judges unfairly requires the litigants, who are already paying taxes to fund the operation of the courts, to also bear the very substantial cost of private judges, in addition to all other litigation expenses. If not circumscribed, such a burden ultimately could discourage persons with meritorious claims from pursuing them in court because they cannot afford to do so. Strict enforcement of the statutory requirement for a written agreement or oral consent entered on the record serves both of these important public policies because it (1) prevents general references to privately paid referees without the formal and express consent of the parties, (2) protects access to the courts and (3) counters any perception that justice is only available to those who can afford to purchase it. Given that (1) compliance with the statutorily imposed consent requirements imposes no significant burden on either the trial court or the litigating parties and (2) recognition of the doctrines of waiver and estoppel to avoid such requirements would serve only to undercut and interfere with the important policies which they further, we believe that the jurisdictional defect presented by this record should not be subject to waiver or avoidance by estoppel irrespective of the evidence of plaintiff's initial acquiescence and limited participation in the proceedings before the referee. Our determination that plaintiff neither waived his right to object to the reference nor is estopped from asserting it is "in harmony with the proper operation" of the judicial system. (In re Griffin, supra, 67 Cal.2d at p. 348.) CONCLUSION (2b) We conclude that the trial court's reference to Judge Nelson of any matters other than those explicitly authorized under section 639, subdivision *1532 (e), was in excess of its jurisdiction and therefore voidable.[31] However, because of the nature of this jurisdictional error, its significance to the functioning of the courts and to the public in general, and the importance of the public policies furthered by the strict enforcement of the provisions of section 638, we do not treat plaintiff's tardy objections and initial and limited participation in the proceedings before the referee as a waiver of, or an estoppel to object to, the lack of statutorily required consent to the reference. Therefore, we will return this matter to the trial court. Any renewal by defendants of their summary adjudication motions should be filed, noticed, heard and decided in accordance with the provisions set out in section 437c and in a manner which is consistent with the views expressed herein. While we recognize the burden of the heavy caseloads carried by trial court judges, we must express a word of caution. The parties are entitled to the decision of the trial court with respect to each matter or issue presented by them except where they properly agree otherwise or a statute permits an appropriate reference. The apparently routine[32] practice of referring out law and motion matters without obtaining the parties' prior written or record consent cannot be justified however helpful it might be in calendar management. "Efficiency is not more important than preserving the constitutional integrity of the judicial process." (Aetna Life Ins. Co. v. Superior Court, supra, 182 Cal. App.3d at p. 437.)[33] In addition, resort to such measures "masks the true needs of the judiciary and is [even more] unwise" than the wholesale use of commissioners as temporary judges which was criticized by Division Seven of this district in Reisman v. Shahverdian (1984) 153 Cal. App. 3d 1074, 1092 [201 Cal. Rptr. 194]. *1533 As we noted earlier, in reaching our decision we have not considered or addressed the substantive merits of defendants' motions and we express no opinion thereon. Indeed, the judgment rendered by the trial court in this case ultimately may prove to have been correct. But as we also said earlier, this case is about plaintiff's right to due process of law. DISPOSITION The summary judgment is reversed in its entirety and the matter is remanded to the trial court for further proceedings not inconsistent with the views expressed herein. Each party shall bear its own costs on appeal. Klein, P.J., and Aldrich, J., concurred. NOTES [1] Leo Baumohl is now deceased, having passed away during the pendency of this appeal. Plaintiff's sister and sole survivor was appointed as his successor-in-interest by the trial court on February 25, 1998, for the purpose of prosecuting this action to conclusion. (See Code Civ. Proc., §§ 377.11, 377.31-377.33.) However, as a matter of both convenience and clarity, we shall refer to plaintiff in this opinion without regard to the substitution of parties. [2] The facts which are relevant to the issues which we discuss are not in dispute. To the extent that there is a dispute with regard to the facts relating to the substantive merits of plaintiff's claims (we generally summarize such facts only for purposes of context), we rely on the facts as set out in the declarations submitted to the referee by plaintiff in opposition to defendants' motions. [3] Labor Code section 1050 provides: "Any person, or agent or officer thereof, who, after having discharged an employee from the service of such person or after an employee has voluntarily left such service, by any misrepresentation prevents or attempts to prevent the former employee from obtaining employment, is guilty of a misdemeanor." [4] One of plaintiff's superiors, whom he claims engaged in the activities described in his complaint, is the individual defendant, Charles Kiskaden. [5] Plaintiff does not contest that ruling in this appeal. [6] While peripheral to our main concern, we cannot help but note that this procedure for selection of the referee did not comply with the mandate set out in California Rules of Court, rule 244.2(b), which is expressly applicable to references made by court order. That subdivision provides, in relevant part: "In selecting the referee, the court shall accept nominations from the parties and provide a sufficient number of names so that the parties may choose the referee by agreement or elimination. The parties may waive this procedure by a waiver noted in the minutes...." (Italics added.) [7] Code of Civil Procedure section 639, in relevant part, provides: "When the parties do not consent, the court may, upon the application of any party, or of its own motion, direct a reference in the following cases: [¶] ... [¶] (e) When the court in any pending action determines in its discretion that it is necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon." (Italics added.) [8] The balance of the relevant part of the order provided: "POWERS OF SPECIAL REFEREE "In order to accomplish this purpose, the Special Referee shall have the following powers: "1. To set the date, time and place of all hearings necessary as agreed upon by the parties, or in the event that no agreement can be reached, the Special Referee shall fix the date, time, and place of such hearings. "2. To direct the issuance of subpoenas; preside over hearings, take evidence, rule on objections, motions and other requests made before, during and after hearings with the same power as if the Court were to preside thereat (except for the power of contempt, which is specifically reserved to this Court). "RECORD AND REPORT "1. All proceedings before the Special Referee shall be reported in writing to this Court within 20 days from the completion of such hearing, with a proposed order on the issues presented at hearing and any recommendations for the imposition of sanctions. "2. Objections to the report of the Special Referee shall be filed with the Clerk of this Court within fifteen (15) days after the report itself is mailed to counsel, that any party who objects to the report shall serve and file notice of a request for a hearing with this Court, and that copies of the objections and any responses shall be served upon the referee." [9] By our summary characterizations of the competing showings made by the parties with respect to each of these motions we intend no expression of opinion as to whether or not there exist any disputed issues of material fact. Our purpose is only to provide context for our consideration of the orders of the referee and the subsequent actions taken by the trial court. [10] In the relevant portion of his order, the referee stated as follows: "After full consideration of the evidence, the separate statements submitted by each party, the authorities submitted by counsel, as well as counsel's oral argument, the Court finds that there are no triable issues of material fact as to the First and Second Causes of Action and FHP is entitled to summary adjudication as a matter of law for the following reasons: "1. That the terms of Plaintiff's employment were governed by an express integrated contract under which he was an at-will employee whose employment was terminable at any time with or without cause; "2. That Plaintiff's at-will status precludes Plaintiff's First Cause of Action for breach of contract based upon a termination without cause. Camp v. Jeffer, Mangels, Butler & Marmaro, 35 Cal. App. 4th 446, 620 (1995) [41 Cal. Rptr. 2d 329]. "3. That Plaintiff's Second Cause of Action for breach of an implied covenant of good faith and fair dealing is also precluded by reason of the express at-will provision in his contract of employment. "IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that said Motion for Summary Adjudication is GRANTED, and the First and Second Causes of Action in Plaintiff's Second Amended Complaint shall be, and hereby are, dismissed with prejudice." Two comments should be made about this order: (1) It does not satisfy the requirements of Code of Civil Procedure section 437c, subdivision (g), regarding the description of supporting evidence and (2) its reference to the existence of an "integrated" agreement of employment is not supported by any evidence in the record. [11] The record reflects that, at the time of the June 7, 1995, reference order, this first motion for summary adjudication by the defendants was pending before the trial court. Following the appointment of Judge Nelson as referee, there apparently was an unrecorded discussion in chambers with the trial court at which plaintiff's counsel either requested or approved the reference of this motion to Judge Nelson. (See fn. 16, post, for quoted colloquy between plaintiff's counsel and the court which took place at hearing on Apr. 12, 1996.) We note that such consent, which was given only with respect to the first of defendants' three motions, was not made or documented in accordance with the specific requirements of Code of Civil Procedure, section 638, which we discuss below. [12] The relevant portion of the referee's order provides: "The Referee has read and considered the Defendant's motion, memorandum of points and authorities, compendium of out-of-state authorities, transcript excerpts, separate statement, and declarations and [P]laintiff's opposition to Defendant's motion, his separate statement, declarations, additional statement of facts and objection to declarations, followed by Defendant's reply, response to purported additional facts, supplemental declarations, objections to Plaintiff's evidence, supplemental transcript excerpts, researched the authorities cited by counsel, and has concluded a lengthy hearing consisting of the presentations of counsel. "After a full consideration and re-examination of all of the above, the Special Referee finds that there are no triable issues of material fact as to the Third, Fourth, and Eighth Causes of Action, and Defendants are entitled to summary adjudication as a matter of law for the following reasons: "(i) Plaintiff's purported Third Cause of Action against FHP and Kiskaden for violation of California Labor Code section 1050 has no merit as a matter of law because there is no admissible evidence that Defendants made any misrepresentations regarding Plaintiff to any potential employer or with the intent to prevent Plaintiff from obtaining employment. (See Exhibit 1 hereto, Excerpts from Defendants' Separate Statement of Undisputed Facts and Supporting Evidence: Facts 1 through 12.) "(ii) Plaintiff's purported Fourth Cause of Action against FHP and Kiskaden for defamation has no merit as a matter of law because there is no admissible evidence that Defendants made any defamatory statements regarding Plaintiff and, moreover, the alleged statements would have been privileged. (See Exhibit 1 hereto, Defendants' Separate Statement of Undisputed Facts and Supporting Evidence: Facts 13 through 20.) "(iii) Plaintiff's purported Eighth Cause of Action against Kiskaden for interference with Plaintiff's employment contract with FHP has no merit as a matter of law because Kiskaden was acting within the course and scope of his employment with FHP when he discharged Plaintiff and, accordingly, cannot be held liable for unlawfully interfering with Plaintiff's employment contract. (See Exhibit 1 hereto, Defendants' Separate Statement of Undisputed Facts and Supporting Evidence: Facts 21 through 22.) "IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Defendants FHP, Inc. and Charles E. Kiskaden's Motion for Summary Adjudication is GRANTED, and the Third, Fourth, and Eighth Causes of Action in Plaintiff's Second Amended Complaint are hereby DISMISSED, with prejudice." [13] In its minute order of March 8, 1996, the trial court stated, in relevant part: "This motion, filed on March 7, 1996 and after the reference heard Defendants Second Summary Adjudication of Issues, has not been made with reasonable diligence. [CRC Rule 244.2(c).] Further, although this Court's order only referred to CCP 639(e), since the parties had agreed to the terms outlined by the Court this was a de facto order under CCP 638. This Court clearly stated to the parties, "Let (the reference) make the judgment." [Record citation omitted.] Plaintiff's request for relief has been waived by the failure to take exception thereto in a timely manner. Consequently, Plaintiff is estopped from objecting at this late stage in the proceedings as no objection was made with reasonable diligence." [14] In a letter to the referee dated March 25, 1996, plaintiff's counsel stated: "In accordance with your request at our telephone conversation today, this letter provides you with Plaintiff's position as to the hearing on Defendants' motion for summary adjudication scheduled for today: As we stated in our opposition papers, Plaintiff does not concur that you have the authority or jurisdiction to hear this matter, and accordingly, we have elected not to appear at your office. However, Plaintiff does not waive his right to argue the merits of this motion before Judge Dunn of the Los Angeles Superior Court. "Further, on March 4, 1996, I informed both you and Ms. Saxe I will not be appearing at today's hearing, and both you and Ms. Saxe stated your agreement with this. I was therefore surprised to hear today that Ms. Saxe was present at your office." [15] The referee's order, in relevant part, provides: "The Referee has read and considered the Defendant's motion, separate statement of undisputed facts and supporting evidence in support of the motion, the memorandum of points and authorities, appendix of statutes, appendix of transcript excerpts, compendium of out-of-state authorities, and declarations of Deborah Saxe, Charles E. Kiskaden, Marguerite O'Toole, Burke Gumbiner, and Charlotte Patterson; as well as Plaintiff's opposition to Defendant's motion, objections to evidence, and his separate statement in opposition to Defendant's motion. Further, the Referee has read and considered Defendant's reply brief, reply to Plaintiff's response to Defendant's separate statement, supplemental declaration of Deborah Saxe, objections to Plaintiff's evidence and request to strike Plaintiff's objections, supplemental appendix of transcript excerpts, and Defendant's response to Plaintiff's purported additional facts. The Referee has researched the authorities cited by counsel, and has considered the presentation of Defendant's counsel. "After a full consideration and re-examination of all of the above, the Special Referee finds that there are no triable issues of material fact as to the Fifth Cause of Action, and Defendant FHP, Inc. is entitled to summary adjudication as a matter of law for the following reasons: .... [¶].... [in the omitted material the referee described his findings and conclusion as to each of plaintiff's theories as to why a violation of a statute expressing a fundamental public policy had occurred; tracking arguments of the defendants, the referee concluded in each instance that there was no admissible evidence of the violation of any statute embodying a fundamental public policy in the termination of plaintiff]. "IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that the motion of Defendant FHP, Inc. for Summary Adjudication is GRANTED, and each of the claims set forth in the Fifth Cause of Action in Plaintiff's Second Amended Complaint shall be, and hereby is, dismissed with prejudice." [16] The colloquy between counsel and the court is instructive. The following is taken from the relevant portion of the court reporter's transcript of the hearing on April 12, 1996: "[Plaintiff's Counsel]: I believe, as we stated in our ex parte papers, that the referee which was appointed under 639, that order exceeded the court's jurisdiction. "The Court: Yes. "[Plaintiff's Counsel]: Now, we did not waive our objection to that appointment by merely appearing before the referee. We never agreed to that referee under 638, as the court might have indicated in the minute order. Merely by me saying on the record `Thank you, your honor' — "The Court: Well, let me ask you, because when the reference was made you knew the reference had been made. I told you I'm going to refer this to a referee and I told you who. "[Plaintiff's counsel]: For discovery purposes, your honor. That's what it was for. "The Court: I don't think that's necessarily the case, but we'll talk about that. "But let's put that aside for a moment and talk about the reference itself. At the time that I made the reference I told you who the referee was going to be, and there was no objection. "[Plaintiff's counsel]: There were no objections. "The Court: Nobody said a word. ".... .... .... .... .... .... .... "[Defendants' counsel]: Yes, your Honor. As I recall, what you did was to ask me and Mr. Romano if we had anybody to suggest, and we said we did not. You said, well, then we will send it out to Judge Nelson. "The Court: That's what I normally do. "[Defendants' counsel]: That's what you did. "The Court: And I have to confess to you that, you know, your recollection of this case — I just cannot imagine that I would impose a referee on attorneys. All you had to do, and although my memory does not serve me well right now, but I do know that my procedure is to say, look, I am going to send this out to Judge Nelson, is that all right, or do you have any objections, or do you have any other persons that you would prefer. And when I don't get a response my assumption is that the referee is all right. "And what's bothering me about that is that it seems to me that what the objection here is is to what the referee did and not really what — who he was, because there was never any statement at the time that I want an opportunity to formally submit 3 names and have counsel submit 3 names, because that happens all the time, okay. "[Plaintiff's counsel]: Your honor, the court's recollection is correct in that we did not ask at the time. And the only issue is whether or not — I believe that the court appointment process was not in compliance with the California rules of court on that point. "The Court: I understand. "[Plaintiff's counsel]: So, the issue is did we waive it. I don't believe we waived it. We do object to the referee handling the summary judgment motion. "The Court: Oh no, that's a different issue. But I'm talking about the reference itself. "[Plaintiff's counsel]: I believe, your honor, that the procedure for reference did not follow the California rules of court or statutory requirements for statute appointment, and it might well be we did not raise objection on the record on that point, but I don't believe that we waived our objection. ".... .... .... .... .... .... .... "[Plaintiff's counsel]: Basically, your honor, we had no objection to the referee having discovery motions. We have objections, and our concerns grew every time we prepared [sic] before the referee, as to his ability to conduct dispositive motions in this case. ".... .... .... .... .... .... .... "[Plaintiff's counsel]: We believe this particular referee, your honor, and I can just state on the record based on my observation of this referee's conduct on the summary adjudication, is unqualified. I believe he is biased, and I don't think he is qualified to rule on dispositive motions on cases such as this. This is a complicated case. "The Court: Oh, I know it's complicated. That's one of the reasons I sent it out to a referee. "[Plaintiff's counsel]: I understand that. And, like I said, your honor, going back to the point which we discussed, which was we never consented to him hearing the summary adjudication motion, but going beyond that, your honor — "The Court: Let's go beyond that. "[Plaintiff's counsel]: We have stated pursuant to the court's order of reference objections to the referee's rulings on the last two summary adjudication motions, and what we would like to do, your honor, is have a hearing de novo essentially before the court on those motions where the record can be made as to the court's ruling, a record can be made on evidentiary objections so that the case is clear, clean, however way the court rules, and either party can proceed on that basis. [¶] I don't believe today is the hearing day, by the way, your honor. "The Court: No certainly not, if there is going to be a hearing. [¶] Do you have anything further? "[Plaintiff's counsel]: No, your Honor. ".... .... .... .... .... .... .... "[After listening to the argument of defendants' attorney, the court asked plaintiff's counsel if he had anything further]: "[Plaintiff's counsel]: Yes your Honor. There was never — the appointment order was not under 638. It was under 639 and there was absolutely never agreement that — by us to submit this whole case to a referee for all purposes. I think the record has to be clear on that. "The Court: Well, I don't know if the record is clear on that. "[Plaintiff's counsel]: Your honor, the issue is whether or not we waived. It is — I am not going to deny that one of the conferences before court we asked to have the first hearing go before Judge Nelson. The issue is whether or not that is an appointment under the statute. "The Court: I understand your position clearly; very clear. "[Plaintiff's counsel]: That's all I have to state, your Honor. "The Court: I'm going to look at this, take a close look at it and make sure because I don't want to wind up doing something and have to do it over again. So, I want to look at it and make sure that I'm correct and make sure that my order was specific enough and clear enough so that whatever ruling I make will preclude us from having to go over this again. So, let me spend more time reading your papers here and I will give you a ruling on this probably sometime early next week. "[Plaintiff's counsel]: Thank you, your Honor." [17] In its minute order of May 3, 1996, the court stated: "The Court having carefully read and considered the documents submitted on the motions and the orders and the objections filed thereto, now confirm, approve and adopt said findings and orders as the findings and orders of this Court. Further, Defendant is ordered to prepare a judgment in accordance with the orders granting summary adjudications, and submit it to the court for signature with copy to opposing counsel, within 10 days." [18] All further statutory references are to the Code of Civil Procedure unless otherwise indicated. [19] Section 638 provides: "A reference may be ordered upon the agreement of the parties filed with the clerk, or judge, or entered in the minutes or in the docket, or upon the motion of a party to a written contract or lease which provides that any controversy arising therefrom shall be heard by a reference if the court finds a reference agreement exists between the parties: "1. To try any or all of the issues in an action or proceeding, whether of fact or of law, and to report a statement of decision thereon; "2. To ascertain a fact necessary to enable the court to determine an action or proceeding." [20] As we pointed out in footnote 11, ante, the off-the-record "consent" of plaintiff's counsel to the referee hearing the first of the defendants' three summary adjudication motions did not satisfy these requirements. [21] The trial court in Aetna Life based its reference order on section 639, subdivision (d), which authorizes a nonconsensual assignment to a referee "[w]hen it is necessary for the information of the court in a special proceeding." [22] For example, a proper trial court order in these circumstances would (1) reflect that the trial court itself had read and considered all of the papers filed in support of and in opposition to each of the three summary adjudication motions, (2) set forth the trial court's ruling on all evidentiary objections properly raised by the parties, and (3) provide full compliance with the mandate of section 437c, subdivision (g). Such a detailed order would be particularly appropriate where, as here, the trial court did not allow the parties an opportunity to argue the motions orally. [23] That plaintiff clearly had no opportunity to present oral argument in support of his opposition to defendants' motions is not a factor to which we have given any weight as it appears (and we assume without deciding) that a party has no absolute right to oral argument on a motion for summary judgment. (See Sweat v. Hollister (1995) 37 Cal. App. 4th 603, 613-614 [43 Cal. Rptr. 2d 399], disapproved on another ground in Santisas v. Goodin (1998) 17 Cal. 4th 599, 609, fn. 5 [71 Cal. Rptr. 2d 830, 951 P.2d 399]; cf. Rieger v. Reich (1958) 163 Cal. App. 2d 651, 666-667 [329 P.2d 770] [abuse of discretion standard applies to decision not to allow oral argument].) [24] In its written minute order of March 8, 1996, denying plaintiff's motion to modify the order of June 7, 1995, which motion objected to the reference, the trial court emphasized that, "This Court clearly stated to the parties [on June 7, 1995], `Let (the reference) make the judgment.'" [25] In its order of March 8, 1996, the trial court engaged in a little revisionist history in attempting to recast the June 7, 1995 order as a general reference to which plaintiff had agreed: "Further, although this court's order [of June 7, 1995] only referred to CCP 639(e), since the parties agreed to the terms outlined by the Court this was a de facto order under section 638." (Italics added.) In our view, this is not a fair characterization of the June 7 order or its genesis. [26] Some cases have suggested that an invalid reference is not even subject to waiver at all. For example, one case noted: "An invalid reference constitutes jurisdictional error which cannot be waived." (Ruisi v. Thieriot, supra, 53 Cal. App.4th at p. 1208; see also International Jet Ski Boating Assn., Inc. v. Superior Court (1991) 232 Cal. App. 3d 112, 116 [283 Cal. Rptr. 33]; Aetna Life Ins. Co. v. Superior Court, supra, 182 Cal. App.3d at pp. 436.) However, we do not believe that this is an accurate statement of the law. While it is not uncommon for cases to state that an act in excess of a court's jurisdiction is void, only acts in excess of subject matter jurisdiction are void; acts in excess of other kinds of jurisdiction are merely voidable. (Conservatorship of O'Connor (1996) 48 Cal. App. 4th 1076, 1088 [56 Cal. Rptr. 2d 386].) The principle of subject matter jurisdiction relates to a court's inherent authority to deal with the case or matter before it. In contrast, a court acts in excess of jurisdiction where, even though it has subject matter jurisdiction, it has no jurisdiction or power to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites. (Id. at pp. 1087-1088.) The doctrines of waiver and estoppel apply only to voidable acts (i.e., to acts which are in excess of these other kinds of jurisdiction). (Id. at p. 1088.) Assigning a matter to a referee without first obtaining the statutorily required written consent filed with the clerk or entered in the minutes or docket is such an act; it is beyond the power of the court, but is not in excess of its subject matter jurisdiction and therefore is merely voidable. [27] Furthermore, stipulation to a temporary judge must be made in writing unless the temporary judge is a court commissioner. (Cal. Rules of Court, rule 244(a).) Thus, in Horton, the lack of a written stipulation to the commissioner who served as a temporary judge was not contrary to law. [28] The general rule is that, in both civil and criminal matters, a party's attorney has general authority to control the procedural aspects of the litigation and, indeed, to bind the client in these matters. (Blanton v. Womancare, Inc. (1985) 38 Cal. 3d 396, 403 [212 Cal. Rptr. 151, 696 P.2d 645, 48 A.L.R. 4th 109].) [29] This case is also distinguishable from cases such as Whoop, Inc. v. Dyno Productions, Inc.[*] (Cal. App.) and Lovret v. Seyfarth (1972) 22 Cal. App. 3d 841, 860 [101 Cal. Rptr. 143], on which defendant expressly relies. Those were cases in which a party voluntarily participated in an arbitration proceeding, and there was no issue as to whether there had been compliance with a statutory prerequisite to valid consent. [*] Reporter's Note: Opinion (B107774) deleted upon direction of Supreme Court by order dated August 12, 1998. In Whoop, Inc., the issue was whether the defendant, Dyno Productions, was bound by an arbitration award, given its claim that it was not a party to the proceedings. Underlying the arbitration award were two lawsuits which had been resolved by a settlement which resulted in, as a term of settlement, a written stipulation and order for appointment of a referee pursuant to section 638. The issue was not whether there was proper consent to the referee, but whether Dyno Productions, which had been formed as an entity after the stipulation was made, was bound thereby. In Lovret, the defendant Seyfarth participated without objection in an arbitration hearing, and did not seek to vacate the resulting arbitration award. Instead, she not only participated in the arbitration hearing, but also joined in the confirmation proceedings by filing cross-demands and causing workmen's and materialmen's liens on the property to be removed as a part of the judgment confirming the award. Later, she attempted to argue that she was not a party to the arbitration. The Lovret court held: "One submitting a counterclaim without resorting to an extraordinary remedy, available to him, may not claim after an adverse ruling in arbitration that the counterclaim was not an issue in the arbitration proceedings. [Citation.]" (Lovret v. Seyfarth, supra, 22 Cal. App.3d at p. 859.) The court therefore held her bound by the arbitration. However, it also concluded that because the parties had not stipulated to the commissioner who corrected and then confirmed the arbitration award, the matter would be reversed. [30] In Griffin, the Supreme Court discussed the application of the doctrine of estoppel to bar a litigant from asserting judicial error based upon an exercise or power which was in excess of the court's jurisdiction. The trial court had revoked a defendant's probation and sentenced him to prison. It did so after the probationary period had expired. This, the trial court was without power to do. However, the reason that this occurred is that the court had previously granted the defendant a one-month continuance of the revocation hearing in order to allow him time to retain private counsel. As a result, the revocation order was entered after the probationary period had expired although the original hearing on the charged violation of probationary conditions had been timely scheduled. The Supreme Court held that the defendant could be estopped to argue that the trial court's action was in excess of its jurisdiction. In doing so, the court articulated the legal principles relevant to the application of the doctrine of estoppel to the case before us. [31] Our decision should not be read as affecting any findings, recommendations or decisions which Judge Nelson may have made with respect to discovery issues which were presented to him pursuant to the order of June 7, 1995, and which were within the express authorization of section 639, subdivision (e). [32] That this practice may be routine is suggested by the use of form orders, such as the one signed by the court in this case. [33] In a slightly different but certainly related context, we recently were critical of an apparently increasing tendency of trial courts to refer matters properly before them to privately paid referees. "The justice system not only must be fair to all litigants; it must also appear to be so. The increasingly common practice of referring discovery matters, without regard to the financial burdens imposed upon litigants, threatens to undermine both of these goals." (Solorzano v. Superior Court (1993) 18 Cal. App. 4th 603, 615 [22 Cal. Rptr. 2d 401].) This problem was recognized and addressed by an amendment to California Rules of Court, rule 244.2(a) in 1996. We have the same reaction to the circumstances presented here. In our view, references by a trial court should be limited to those cases where not only is there no unfair financial burden imposed on the parties, but also where the parties are not deprived of the trial court's actual and direct participation in the decisionmaking process without their express consent where such consent is required and, where it is not, without substantial reasons therefor clearly articulated by the court.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2280275/

179 N.J. Super. 613 (1981) 433 A.2d 448 STATE OF NEW JERSEY, BY THE COMMISSIONER OF TRANSPORTATION, PLAINTIFF, v. PAUL F. KASTNER ET AL., DEFENDANTS. Superior Court of New Jersey, Law Division Monmouth County. Decided February 9, 1981. *614 Abraham Frankel, Deputy Attorney General, argued the cause for plaintiff (John J. Degnan, Attorney General of New Jersey). Robert S. Tobin argued the cause for defendants Kastner. Peter J. Edwardsen submitted a brief for defendants Errico. SHEBELL, A.J.S.C. On April 19, 1979 plaintiff, State of New Jersey acquired by condemnation a portion of property owned by defendants Kastner. On May 7, 1979 the State deposited $10,800 with the Superior Court as estimated compensation for the property acquired. The Kastners have applied to withdraw that amount. However, their application is opposed by Frederick and Rosemary Errico, mortgagees of the property. This mortgage was for $22,000 in December 1974. The Kastners have made the payments on the mortgage regularly, and as of November 1, 1980 there was $18,776.33 remaining due on the mortgage. Defendants Errico seek to have the full amount of the condemnation award plus interest paid to them. The mortgagees state that the value of the remaining property has been reduced to $40,500 as a result of the partial taking. Mortgagors have submitted an appraisal certification indicating that the value of the remaining property is $46,000. Neither party disputes the fact that the value of the remaining property is at least twice the amount of the mortgage. *615 In an attempt to support their position that a lienholder is entitled to have his lien completely satisfied on a partial taking, the mortgagees cite the case of Orange v. Wall Day Realty Co., 150 N.J. Super. 1 (App.Div. 1977). That case holds that a lien of unpaid real estate taxes assessed against an entire parcel is a lien upon a condemnation award despite the fact that only a portion of the parcel is taken by the condemnation. There is specific statutory authority in N.J.S.A. 20:3-42 for the recovery by a municipality of taxes or other municipal liens or charges out of a condemnation award. There is, however, no such statutory authority to support the mortgagees' contention. The mortgage makes no such provisions for payment of the proceeds of a condemnation award in the event of a partial taking. In the early case of Gray v. Case, 51 N.J. Eq. 426 (Ch. 1893), the court held that in the event of a partial taking of property and the granting of a condemnation award, the lienholder cannot enforce his lien against the condemnation award unless the remaining property is of insufficient value to satisfy the lien. Such has not been shown in the present case. There is no good reason not to follow the holding of the Gray case. The motion of defendants Kastner for payment to them of the condemnation award of $10,800 is hereby granted. The Erricos are denied the relief sought.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2283468/

129 Cal.Rptr.2d 741 (2003) 105 Cal.App.4th 905 Sally M. PRATT, Plaintiff and Appellant, v. VENCOR, INC., et al., Defendants and Appellants. No. F038462. Court of Appeal, Fifth District. January 27, 2003. *742 Gianunzio & DeSantis and Victor Gianunzio, Oakland, for Plaintiff and Appellant. Jackson, Lewis, Schnitzler & Krupman, D. Gregory Valenza, Sacramento, and Tyler A. Brown, San Francisco, for Defendants and Appellants. OPINION WISEMAN, J. This case is like a bottle of fine California Chardonnay—very dry. It addresses a purely procedural question of the "trigger date" for the commencement of the 60-day time period within which the court must rule on a motion for judgment notwithstanding the verdict (JNOV) when there is no corresponding motion for a new trial. We publish to resolve the contention that there is ambiguity in the language of Code of Civil Procedure sections 629 and 660[1] in determining the latest date for ruling on a JNOV motion. We hold, pursuant to sections 629 and 660, that where there is no new trial motion filed, the latest date for ruling on a motion for JNOV is: (1) 60 days from and after the mailing of notice of entry of judgment by the clerk of the court pursuant to section 664.5, or (2) 60 days from and after service on the moving party by any party of written notice of the entry of the judgment, whichever is earlier. *743 PROCEDURAL HISTORY[2] In September 1996, Sally M. Pratt (plaintiff) filed suit against Vencor, Inc., Stephanie Luell, and May Turner (defendants) for age discrimination, wrongful termination in violation of public policy, intentional and negligent infliction of emotional distress, breach of employment contract, and breach of the implied covenant of good faith and fair dealing. A jury found in favor of plaintiff and against Vencor in the amount of $473,857. A jury also found in favor of plaintiff and against Luell and Turner in the amount of $41,849.60. The judgments were filed on September 21, 2000. On October 5, 2000, defendants filed and served a notice of motion and motion for partial JNOV. On November 6, 2000, plaintiff served a notice of entry of judgment on defendants. No notice of entry of judgment was ever served by the clerk of the court. On January 4, 2001, the trial court signed its decision on the motion for partial JNOV, granting the motion with respect to the claim for negligent infliction of emotional distress, thus reducing plaintiffs judgment against Vencor by $200,000. In addition, plaintiff no longer prevailed on her negligence claim against Luell and Turner. The decision was served on the parties on January 5, 2001. On February 13, 2001, plaintiff filed a notice of motion and motion to strike the court's order granting partial JNOV on the ground it was void because the court lacked jurisdiction at the time the order was entered. The court denied the motion, finding the "trigger date" of the filing of a notice of intention to move for a new trial does not apply when only a motion for JNOV is filed, and therefore the court had jurisdiction to grant the motion. Plaintiff appealed only the court's order denying her motion to strike, and defendants filed a protective cross-appeal. DISCUSSION Plaintiff contends the trial court lacked jurisdiction to grant defendants' motion for a partial JNOV because it failed to timely issue its decision within the statutory limits set forth in sections 629 and 660. Since the issue concerns the proper interpretation of statutory provisions, we review the trial court's decision de novo. (See People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432, 101 Cal.Rptr.2d 200, 11 P.3d 956; People ex rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619, 632, 92 Cal. Rptr.2d 115 [appellate courts independently determine proper interpretation of a statute].) The time limit for ruling on a JNOV motion is set forth in section 629, which states: "The court, before the expiration of its power to rule on a motion for a new trial, either of its own motion, after five days' notice, or on motion of a party against whom a verdict has been rendered, shall render judgment in favor of the aggrieved party notwithstanding the verdict whenever a motion for a directed verdict for the aggrieved party should have been granted had a previous motion been made. "A motion for [JNOV] shall be made within the period specified by [s]ection 659 . . . in respect of the filing and serving of notice of intention to move for a new trial. The making of a motion for [JNOV] shall not extend the time within which a party may file and serve notice of intention to move for a new trial. The court shall not rule upon the motion for [JNOV] until the expiration of the *744 time within which a motion for a new trial must be served and filed, and if a motion for a new trial has been filed with the court by the aggrieved party, the court shall rule upon both motions at the same time. The power of the court to rule on a motion for [JNOV] shall not extend beyond the last date upon which it has the power to rule on a motion for a new trial. If a motion for [JNOV] is not determined before such date, the effect shall be a denial of such motion without further order of the court." Section 660 addresses the time limits for ruling on a new trial motion: "Except as otherwise provided in [s]ection 12a . . ., the power of the court to rule on a motion for a new trial shall expire 60 days from and after the mailing of notice of entry of judgment by the clerk of the court pursuant to [s]ection 664.5 or 60 days from and after service on the moving party by any party of written notice of the entry of the judgment, whichever is earlier, or if such notice has not theretofore been given, then 60 days after filing of the first notice of intention to move for a new trial. If such motion is not determined within said period of 60 days, or within said period as thus extended, the effect shall be a denial of the motion without further order of the court." Section 629 provides that the court must rule on a JNOV motion by the last date upon which it has the power to rule on a new trial motion. Section 660 sets forth three triggering events for the 60-day jurisdictional requirement under which a court must rule on a new trial motion. The 60-day period commences upon the earliest of three events: (1) when the clerk of the court, pursuant to court order, mails notice of entry of judgment; (2) when any party serves written notice of entry of judgment on the moving party; or (3) if no such notice has been previously given, upon the filing of the first notice of intention to move for a new trial. (§§ 660, 664.5, subd. (d); Dodge v. Superior Court (2000) 77 Cal.App.4th 513, 517, 91 Cal.Rptr.2d 758; In re Marriage of Liu (1987) 197 Cal.App.3d 143, 150, 242 Cal.Rptr. 649.) In this case, there was no notice of intention to move for a new trial. Defendants filed only a motion for JNOV. Plaintiff urges us to interpret sections 629 and 660 to require the trial court to rule on the JNOV motion within 60 days from the time the motion was filed. Plaintiff argues the JNOV motion is functionally equivalent to a notice of intention to move for a new trial and starts the 60-day jurisdictional clock. We articulated the rules of statutory construction in People v. Superior Court (Gary) (2000) 85 Cal.App.4th 207, 213, 101 Cal.Rptr.2d 874: "`The court's role in construing a statute is to "ascertain the intent of the Legislature so as to effectuate the purpose of the law." [Citations.] In determining the Legislature's intent, a court looks first to the words of the statute. [Citation.] "[I]t is the language of the statute itself that has successfully braved the legislative gauntlet." [Citation.] "`When looking to the words of the statute, a court gives the language its usual, ordinary meaning. [Citations.] If there is no ambiguity in the language, we presume the Legislature meant what it said and the plain meaning of the statute governs. [Citations.]' [Citation.]" The plain meaning of sections 629 and 660 is clear. Section 629 provides: "The power of the court to rule on a motion for [JNOV] shall not extend beyond the last date upon which it has the power to rule on a motion for a new trial." The time *745 limit for ruling on a motion for a new trial is triggered by the earliest of three events. One of these events is not the filing of the JNOV motion. It is the filing of a notice of intent to move for a new trial. Section 660 simply cannot be read to include the filing of a JNOV motion as a triggering event. (See Sturgeon v. Leavitt (1979) 94 Cal.App.3d 957, 964, 156 Cal.Rptr. 687 ["`[T]he judicial function is simply to ascertain and declare what is in terms or substance contained in the statute, not to insert what has been omitted, or omit what has been inserted. . ..' [Citation.]"].) We are not persuaded that the Legislature meant for the 60-day jurisdictional requirement to begin to run from the filing of a motion for JNOV alone, without the filing of a motion for intention to move for a new trial. The court in Espinoza v. Rossini (1966) 247 Cal.App.2d 40, 55 Cal. Rptr. 205, explained the rationale behind the amendments to section 629: "It is the general rule that where an order granting a new trial is regularly made by the trial court and correctly entered by the clerk in the court minutes, the court's jurisdiction is exhausted, and it may not thereafter vacate or modify the order. . .. ". . . [S]ection 629, which authorizes an aggrieved party to move for [JNOV], provided prior to 1961 that the motion could be made in the alternative with a motion for new trial. The 1961 amendments relieved the party of the burden of making these motions in the alternative. And, the section as amended also provides that the motion shall be made within the period prescribed for the filing of a motion for a new trial; that the court shall not rule on the motion until the period for filing a motion for new trial has expired; that if a motion for new trial is also made by the aggrieved party the court shall rule on both motions at the same time, and that if the court does not rule on the motion within the time prescribed it shall be deemed denied. From this it is evident that in amending section 629 the Legislature simply intended to enable an aggrieved party to move for [JNOV] while preserving his right to move for a new trial, and without forfeiting the right to the new trial if the court grants the motion notwithstanding the verdict and is thereafter reversed by the appellate court. In other words, the procedure to be followed by both the court and the aggrieved party in relation to a motion for [JNOV] is synchronized with the procedure prescribed for a motion for a new trial, containing the same time periods, time limits and consequences . . .." (Espinoza v. Rossini, supra, 247 Cal.App.2d at pp. 45-46, 55 Cal.Rptr. 205; see also Catania v. Halcyon Steamship Co. (1975) 44 Cal.App.3d 348, 351, 118 Cal. Rptr. 513.) In light of this history, we find no credence to the argument that the Legislature meant for the section 660 time limit commencing upon the filing of a notice of intention to move for a new trial to apply to the filing of a notice of a JNOV motion. A motion for JNOV is not synonymous with or equivalent to a notice of intention to move for new trial. (Cf. §§ 629, 657.) The meaning of each statute appears plain, clear and unambiguous on its face. "The court cannot ignore the plain words of the statute unless it appears the words used were, beyond question, contrary to what was intended by the Legislature." (County of Madera v. Carleson (1973) 32 Cal.App.3d 764, 768-769, 108 Cal. Rptr. 515, disapproved on another ground in Frink v. Prod (1982) 31 Cal.3d 166, 180, 181 Cal.Rptr. 893, 643 P.2d 476.) Here, they were not. *746 Plaintiff argues, that in the hypothetical situation where no notice of entry of judgment is ever served, a party could be forced to appeal a judgment without receiving a ruling on a JNOV motion. If no notice of entry of judgment is served, rule 2(a)(3) of the California Rules of Court sets an outside limit on the time for appeal—180 days after entry of judgment. Plaintiff maintains the Legislature could not have intended "to create such an exception to the orderly process of timely decisions on post trial motions." Plaintiffs argument is unconvincing. The hypothetical assumes courts will ignore their duties to timely rule on JNOV motions. We cannot and do not make this assumption. (See Evid.Code, § 664 [presumed official duty regularly performed]; Wolf gram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43, 60, 61 Cal.Rptr.2d 694 [courts presume judges obey all laws]; Brown v. Superior Court (1925) 70 Cal.App. 732, 737, 234 P. 409 [presumption is that court will do what law demands of it, as and when occasion arises].) In this case, no notice of intention to move for a new trial was filed. The notice of entry of judgment was served on November 6, 2000. The court issued its decision on the JNOV motion on January 4, 2001, within 60 days from service of the notice of entry of judgment.[3] Thus, the court properly denied plaintiffs motion to strike the court's order granting partial JNOV. As a result of our decision, it is not necessary to reach the merits of defendants' protective cross-appeal. It is therefore dismissed. DISPOSITION The judgment is affirmed and the cross-appeal is dismissed. Costs are awarded to defendants. WE CONCUR: DIBIASO, Acting P.J., and GOMES, J. NOTES [1] All statutory references are to the Code of Civil Procedure unless otherwise indicated. [2] The underlying facts are omitted because they are not relevant to the issue on appeal. [3] The record provided to us by the parties does not include a file-stamped copy of the court's decision on the JNOV motion or an order entered in the permanent minutes of the court granting the motion. The parties agree that the date the court ruled on the JNOV motion was January 4, 2001, We therefore use January 4, 2001, as the date of the court's ruling on the JNOV motion, as we address only those contentions raised by the parties. (See Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4, 188 Cal.Rptr. 115, 655 P.2d 317; Dills v. Redwoods Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1, 33 Cal.Rptr.2d 838 ["We will not develop appellants' arguments for them. . .."].)

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2283384/

440 A.2d 1048 (1982) Ruthanne SINGAL v. CITY OF BANGOR and Nite Owl, Inc. Supreme Judicial Court of Maine. Argued January 4, 1982. Decided February 9, 1982. *1049 Gross, Minsky, Mogul & Singal, George C. Schelling (orally), Bangor, for plaintiff. Twitchell, Linscott & Badger, Frederick J. Badger, Jr., Orman G. Twitchell (orally), Bangor, for defendants. Before McKUSICK, C. J., GODFREY, ROBERTS, CARTER, VIOLETTE and WATHEN, JJ., and DUFRESNE, A. R. J. DUFRESNE, Active Retired Justice. The defendant Nite Owl, Inc.[1] appeals from a decision of the Superior Court, Penobscot County, in an 80B proceeding that reversed a decision of the Bangor Zoning Board of Appeals. The Board had granted Nite Owl's application for a permit to install two self-service gasoline pumps and underground storage tanks as an accessory, customarily incidental and subordinate use *1050 on the same lot, to the operation thereon of a grocery/superette at the corner of Broadway and Burleigh Roads, in Bangor, Maine, the area being zoned C-1 as a neighborhood commercial zone under the city's ordinance. Nite Owl challenges the Superior Court's decision on the grounds that summary judgment was inappropriate in this case and that the court misconstrued the zoning ordinance. We find no merit in the appellant's arguments and therefore deny the appeal. Standing Before discussing the issues raised on appeal, we must first determine whether Ruthanne Singal, the appellee, initially had the necessary standing to appeal the Board's decision. 30 M.R.S.A. § 2411(3)(F) provides that, in zoning cases, [a]n appeal may be taken, within 30 days after the decision [of the Board of Zoning Appeals] is rendered, by any party to Superior Court from any order, relief or denial in accordance with the Maine Rules of Civil Procedure, Rule 80B. The hearing before the Superior Court shall be without a jury. (Emphasis supplied). Rights of appeal from decisions of administrative tribunals are statutory, and capacity of any appellant to prosecute an appeal therefrom, i.e. standing to appeal, must needs depend on the particular wording of the specific appeal statute involved. The reference zoning appeal statute gives appeal standing to a party at the administrative level, i.e. before the administrative agency, here the Zoning Board of Appeals. Not only must it appear that the appellee, Ruthanne Singal, was a party before the Board, but she must further demonstrate that by reason of the Board's action or inaction she suffered a particularized injury. See Matter of Lappie, Me., 377 A.2d 441 (1977). Even though the issue of standing was not raised by the parties, the matter is jurisdictional and will be examined by the court on its own motion for the first time at the appellate level. McNicholas v. York Beach Village Corp., Me., 394 A.2d 264, 266 (1978). See also Desmond v. Persina, Me., 381 A.2d 633, 637 (1978); State v. Joey F., Me., 438 A.2d 1273 (1982). Indeed, deficiency in standing to appeal, whether arising from failure of party status before the agency or from the absence of particularized aggrievement as a result of agency action or inaction, gives rise to a lack of subject-matter jurisdiction in the courts sitting on appeal, whether at the initial appellate level in the Superior Court, or at the final stage of the appeal in the Law Court. See Walsh v. City of Brewer, Me., 315 A.2d 200, 210-11 (1974). This Court has already construed the term "party" as used by the Legislature in 30 M.R.S.A. § 2411(3)(F), the zoning appeal statute. We viewed the statutory scheme as using the word "party" in the broad sense of meaning any participant in the proceedings who is aggrieved by the action or inaction of the zoning board of appeals. Pride's Corner Concerned Citizens Assn. v. Westbrook Board of Zoning Appeals, Me., 398 A.2d 415, 417-18 (1979). The appellee in the instant case did appear by her attorney at the hearing on Nite Owl's application before the Zoning Board of Appeals, where, as an owner of property and resident on Burleigh Road in Bangor in the neighborhood of the proposed business undertaking, she opposed a construction of the pertinent ordinance provisions which would permit the sale of gasoline from two self-service pumps with storage tanks as an accessory use in connection with the operation of a grocery/superette at the corner of Burleigh and Broadway Roads in a neighborhood commercial zone classified as C-1. Through her attorney she participated in the proceedings in opposition to the grant of a permit to Nite Owl, arguing strenuously to the Board that the zoning ordinance if properly interpreted did not allow the sale of gasoline in a C-1 zone. Nite Owl's appeal of the Code Enforcement Officer's denial of its application for a permit to install the gasoline pumps and tanks undoubtedly caused the Zoning Board of Appeals pursuant to Article 24, Section 2(a) of the zoning ordinance to notify by *1051 U.S. mail all abutting owners and owners of properties within 100 feet of the exterior boundaries of the appellant's property. Presumably, Singal's status as a proper party in opposition was knowingly recognized by the Board and, thus, her capacity to appeal to the Superior Court from the Board's adverse decision by reason of her participation in the administrative hearing must follow, provided the record also shows that she suffered a particularized injury from the Board's decision. It is generally conceded that the operation of gasoline service stations do cause such problems in the vicinity as traffic congestion, noise, danger of fire and depreciation of surrounding property values. See, e.g. P. Rohan, Zoning and Land Use Controls, § 40.04(4) (1981). The sale of gasoline from self-service pumps at an island in front of a grocery/superette establishment, although different in degree from such commerce at full-fledged gasoline service stations, do pose similar problems of traffic congestion, noise, fire hazards and property depreciation of some consequence. Given the potential for such a particularized injury of some appreciative magnitude, the appellee is an aggrieved party having standing to seek judicial review of the Board's decision. Pride's Corner Concerned Citizens Assn., supra, at 418; Matter of Lappie, supra, at 443. Summary Judgment Under Rule 56(c), M.R.Civ.P., summary judgment may be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that a party is entitled to a judgment as a matter of law. Nite Owl argues that the issue, whether or not the sale of gasoline by means of the operation of self-service pumps as an accessory use to the operation of a grocery/superette is permissible in a C-1 zone under the zoning ordinance of the City of Bangor, is one of fact on which the parties are in disagreement, and that this legally precluded the grant of summary judgment as was done in this appeal at the Superior Court level. We disagree. This Court has consistently held that the meaning of terms or expressions in zoning ordinances calls for the construction of legislation and is a question of law for the court. LaPointe v. City of Saco, Me., 419 A.2d 1013, 1015 (1980); Moyer v. Board of Zoning Appeals, Me., 233 A.2d 311, 318 (1967). Whether a proposed use, principal or accessory, falls within a given categorization contained in zoning regulations is a question of law, on which the zoning board's determination as well as that of the single justice is subject to review. Moyer, supra, at 318. Hence, summary judgment was appropriate in the present appeal under Rule 56(c), M.R.Civ.P. Construction of the Ordinance The Bangor zoning ordinance provides that a grocery/superette is a permitted use in a C-1 zone. Also permitted are accessory uses on the same lot with, and of a nature customarily incidental and subordinate to, the principal use, here a grocery/superette. Although neither grocery nor superette is defined by the ordinance, Article 3, Section 1 thereof ordains that terms not defined shall have their customary dictionary meanings. Webster's Third International Dictionary used by the Presiding Justice to construe the ordinance defines "superette" as a supermarket operating on a scale smaller than usual as measured by space occupied or outdoor storage, and "grocery" as a place of business of a retail grocer. Supermarket, on the other hand, is defined as a departmentized self-service chain or independent retail market that sells foods, convenience goods and household merchandise arranged in open mass display. The question then becomes whether gasoline fits into the category of goods sold by a superette, i.e. a grocery store or small supermarket. Although the appellant argues that "goods" is a category broad enough to encompass gasoline, we find it so broad as to be virtually meaningless in helping to determine exactly what was intended to be sold in a grocery/superette. *1052 When a term of a zoning ordinance is ambiguous or uncertain, the court should construe that term reasonably "with regard both to the objects sought to be obtained and to the general structure of the ordinance as a whole." LaPointe v. City of Saco, 419 A.2d at 1015; Robinson v. Board of Appeals, Town of Kennebunk, Me., 356 A.2d 196, 198 (1976); Moyer v. Board of Zoning Appeals, Me., 233 A.2d at 317. It is through consideration of the whole ordinance that the legislative intent can be ascertained. Our examination of the Bangor zoning ordinance convinces us that the sale of gasoline was not intended as a permitted use in a C-1 zone. The ordinance is highly restrictive in its treatment of gasoline service stations, permitting them only as special exceptions in the heavier C-2, C-3 and C-4 commercial zones, when the applicant can demonstrate, among other things, that the health, safety, welfare and property values of the neighborhood will not be affected. Since many of the same dangers necessitating restrictions on gasoline service stations are inherent in the self-service sale of gasoline, it would be unreasonable to conclude that the sale of gasoline was intended either as the primary business of, or as a use accessory to, a grocery/superette. Otherwise, a use considered undesirable for many reasons even in heavy commercial zones would be permitted without restriction in a neighborhood commercial zone. We note further that the Bangor zoning ordinance in controlling land uses in C-1 neighborhood commercial zones, in its statement of purposes, expressly limits these land uses primarily to small service businesses and retail stores, such as (section 3 of article 11) grocery/superettes, delicatessens, drug stores, self-service laundromats, laundry pick-up stations, etc., plus "accessory uses on the same lot and customarily incidental to and subordinate to the above uses." The stated accessory use clause does not expressly permit, in connection with the operation of the enumerated small service businesses and retail stores, accessory structures as other parts of the ordinance may provide in other zones. A structure, principal or accessory, as defined by the ordinance is "[a]nything constructed or erected with a fixed location on the ground or attached to something having a fixed location on the ground, including but not limited to, mobile homes, buildings, walls, fences, billboards, signs, piers and floats." (Emphasis added). In a Neighborhood Commercial Zone, section 3 of article 11 further provides that "no business may be conducted in a structure with more than 2000 square feet in gross floor area, and no goods or materials may be displayed or stored outdoors, except goods or materials of a seasonal nature displayed for retail sale and such outside storage display area may not exceed 1% of the gross floor area of the building." (Emphasis provided). It is obvious that gasoline used in the operation of motor vehicles would not come within the meaning of "goods or materials of a seasonal nature" and, thus, under the provisions of the ordinance, could not be displayed for retail sale and stored in cans, casks, vats, tanks or other types of containers, located on the surface of the ground outside the principal business structure. We believe it would be against the comprehensive spirit of the ordinance as above indicated to view the sale of gasoline from pumps and tanks attached to a concrete foundation or otherwise bolted into the ground as permissible as an accessory use to the business of grocery/superette. Also, gasoline pumps, having a fixed location on the ground, must be viewed as structures under the ordinance, on a par with "walls, fences, billboards, [and] signs" specifically mentioned in the ordinance. We hold that the sale of gasoline in a C-1 zone was not an accessory use to the operation of a grocery/superette under the zoning ordinance of the City of Bangor. The parties have brought to our attention the amendment of the ordinance on May 12, 1980, which specifically prohibits the sale of gasoline in a neighborhood commercial zone. This amendment was enacted by the *1053 City Council of the City of Bangor and consisted in deleting from the ordinance the category "grocery/superette" as a permitted use in a C-1 zone and inserting instead thereof "grocery store not including the sale of motor vehicle fuel." The appellant argues that this change in the ordinance made pending appeal from the Board's decision to the Superior Court, unless the contrary clearly appears, evidenced a purpose and intent on the part of the City Council to change the effect of the existing law. Matheson v. City of Portland, Me., 288 A.2d 476, 478 (1972) and In Re Bangor & Aroostook Railroad Co., 159 Me. 86, 188 A.2d 485, 489 (1963) are cited for that proposition. The appellee countered with the case of Fahey v. City Council of City of Sunnyvale, 208 C.A.2d 667, 25 Cal. Rptr. 314, 319 (1962) which stands for the rule that, when an amendment is only for the purpose of clarification, it is merely a restatement of the prior law in a clearer form and the law as it existed prior to the amendment remains the same after it. In Mundy v. Simmons, Me., 424 A.2d 135, 137 (1980), we did say that, at times, when there is ambiguity in prior legislative terminology, enactments by a subsequent legislature may throw light on the legislative intent underlying previously enacted legislation and may be taken into consideration in dissipating the uncertainty of a foundational statute. The same rule would apply respecting ordinances enacted by the legislative bodies of municipalities. Because of the change in the ordinance, however, we have had to consider, as we must, the question of mootness, since it is a well-settled principle that legislation passed during the course of litigation may render moot, or unnecessary, a determination of the existing controversy by supplanting the gravamen of the complaint. See Thomas v. Zoning Bd. of Appeals, etc., Me., 381 A.2d 643, 646 (1978). We are satisfied that the case is not moot, since the dismissal of Singal's appeal from the Board's decision in favor of Nite Owl on the ground of mootness would give the administrative decision effectiveness which under a proper interpretation of the ordinance it would not possess. See W. W. Cross & Co. v. National Labor Relations Board, 1st Cir., 174 F.2d 875 (1949). We do conclude that, from the comprehensive structure of the Bangor zoning ordinance and its self-consistency when all its parts are considered together, it clearly appears that the permitted use of grocery/superette in a neighborhood commercial zone as provided by the ordinance prior to its amendment on May 12, 1980 did not allow the sale of gasoline as an accessory use and that the subsequent amendment merely reflected a clarification of the law as it existed at the time of Nite Owl's application to the Board. The entry will be: Appeal denied. Judgment affirmed. All concurring. NOTES [1] The City of Bangor is not appealing the decision of the Superior Court.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2283716/

129 Cal.Rptr.2d 410 (2003) 105 Cal.App.4th 349 Evan GRANOWITZ, a Minor, etc., Plaintiff and Appellant, v. REDLANDS UNIFIED SCHOOL DISTRICT et al., Defendants and Appellants. No. E030144. Court of Appeal, Fourth District, Division Two. January 14, 2003. Rehearing Denied January 31, 2003. Review Denied April 30, 2003.[*] *411 Atkinson, Andelson, Loya, Ruud & Romo, Ronald C. Ruud and Jennifer E. *412 Mullendore, Riverside, for Defendants and Appellants. Gagen, McCoy, McMahon & Armstrong, Gregory L. McCoy, Danville, and Tara-Nicholle B. Nelson for Association of California School Administrators as Amicus Curiae on behalf of Defendants and Appellants. Best, Best & Krieger, Dina O. Harris, San Diego, and Cathy S. Holmes, Riverside, for California School Boards Association Education Legal Alliance on behalf of for Defendants and Appellants. Granowitz, White and Weber, Richard A. Granowitz, Steven R. Weber, San Bernardino; and Harry W.R. Chamberlain II for Plaintiff and Appellant. GAUT, J. 1. Introduction Evan Granowitz, a high school senior, was suspended for five days after several fellow students accused him of sexually-related misbehavior, including grabbing a girl by the buttocks. After a nine-day trial, the court found plaintiff had been denied due process and, under 42 United States Code section 1983, awarded plaintiff general damages in the amount of $45,000 and punitive damages in the amount of $50,000. The court also awarded plaintiff attorney's fees in the amount of $75,268. Plaintiff and defendants have filed cross-appeals. On appeal, the principal issue is whether, as a matter of law, defendants afforded plaintiff due process in suspending him. Employing a melange of federal and state law and administrative regulations, plaintiff claims violations of both procedural and substantive due process. We decide the trial court erred in its determination that plaintiff was denied due process and reverse the judgment. 2. Factual and Procedural Background Because the pertinent facts are undisputed, we primarily adopt the trial court's recitation of the facts from the statement of decision. Defendant Robert Denham was the principal at Redlands High School. Prompted by student complaints, he investigated sexually inappropriate conduct by four male students, including plaintiff. Denham talked to plaintiff, other students, and school staff, including teachers and counselors. Plaintiff and the three other boys told Denham other students were trying to blackmail them and impair their college prospects. Denham then asked plaintiff and his parents to attend a meeting on February 10, 1998. The purpose of the meeting was to allow plaintiff to respond to the charges against him. Plaintiff, his mother, and his father, a lawyer, met with Denham, who explained that plaintiff and three other boys on the speech team had been implicated in sexual misconduct. Denham told plaintiff and his parents that he had interviewed several credible witnesses and he was deciding whether to suspend plaintiff for sexual harassment. Denham described four kinds of objectionable behavior by plaintiff including: inappropriate sexual comments and gestures; simulating masturbation or sex; groping or "diddling" of other boys; and, grabbing a girl by the buttocks. According to A Concise Dictionary of Slang and Unconventional English,[1] "diddle" means "to digitate sexually and successfully." Denham understood "diddling" to mean grabbing a boy's genitals or digitally probing a boy's anus. Based on the advice of counsel to protect the identity of witnesses and victims, Denham did not provide specific names, dates, or locations in *413 spite of repeated demands from plaintiff and his father for more detail. Plaintiff denied most of the alleged misconduct although earlier, during another conversation with Denham, he had acknowledged making ribald comments among like-minded peers who were not offended. At the February 10th meeting, plaintiff admitted touching a girl's buttocks accidentally when trying to attract her attention. Plaintiffs father suggested the girl plaintiff had grabbed was biased because her mother owed money to plaintiffs father. Following the meeting, Denham decided to impose the longest term of suspension, five days. The notice of suspension listed the reasons for plaintiffs suspension as being for violations of the Education Code: "48900(a)(2) Wilfully used force or violence upon the person of another, except in self-defense; 48900(i) Committed an obscene act; 48900(n) Committed a sexual battery as defined in Section 243.4 of the Penal Code; 48900.2 Sexual harassment." In the meeting, Denham had not specifically mentioned "wilfully us[ing] force or violence upon the person of another, except in self-defense" or sexual battery, as prohibited by section 48900, subdivisions (a)(2) and (n). After serving his suspension, plaintiff graduated from high school in 1998 and started college at Emory University in the fall. On October 14, 1998, plaintiff filed a federal civil rights action in the United States District Court. On December 18, 1998, he dismissed the federal action subject to a stipulation between the parties in which they agreed to a dismissal without prejudice to allow plaintiff to file an amended complaint in state court. The stipulation provided the statute of limitations "shall be tolled during the time frame this action was pending before this court, and for 30 days thereafter." Plaintiff filed the present state action on January 19, 1999, but he did not include a cause of action for violation of his federal civil rights. During trial in August 2000, plaintiff filed a motion to amend his complaint to state a federal civil rights claim and seeking monetary damages. The court granted the motion and awarded plaintiff general damages, punitive damages, and attorney's fees under 42 United States Code section 1983 against defendant Denham personally. 3. Constitutional Due Process The parties disagree as to the proper standard of review on the issue of whether plaintiff was afforded due process. Plaintiff asserts we must look for substantial evidence to support the trial court's decision. Defendants maintain that it is proper to conduct a de novo review of the trial court's application of the law to the undisputed material facts. We agree with defendants that the proper standard of appellate review is de novo.[2] In reaching this conclusion, we emphasize that we are deciding only whether plaintiff was suspended in accordance with the limited requirements of due process under the circumstances of this case. We recognize the deference we must accord to an administrator's decision to discipline a student.[3] *414 Plaintiff argues he was denied due process under federal and state constitutional law, the Education Code, and the regulations of the Redlands Unified School District. Defendants make the more compelling argument that the trial court erred in deciding plaintiff was denied due process. We first consider the issue of procedural due process. When facing a temporary short-term suspension, a student has minimal procedural due process rights, including the right to a hearing. As described by the United. States Supreme Court in Goss v. Lopez:[4] "We do not believe that school authorities must be totally free from notice and hearing requirements if their schools are to operate with acceptable efficiency. Students facing temporary suspension have interests qualifying for protection of the Due Process Clause, and due process requires, in connection with a suspension of 10 days or less, that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story. The Clause requires at least these rudimentary precautions against unfair or mistaken findings of misconduct and arbitrary exclusion from school. [Fn. omitted.] ". . . [I]n being given an opportunity to explain his version of the facts . . . the student [must] first be told what he is accused of doing and what the basis of the accusation is. . .."[5] Recognizing the burden it would place on the public schools, the Goss court rejected more expanded due process rights for short-term suspensions: "We stop short of construing the Due Process Clause to require, countrywide, that hearings in connection with short suspensions must afford the student the opportunity to secure counsel, to confront and cross-examine witnesses supporting the charge, or to call his own witnesses to verify his version of the incident. Brief disciplinary suspensions are almost countless. To impose in each such case even truncated trial-type procedures might well overwhelm administrative facilities in many places and, by diverting resources, cost more than it would save in educational effectiveness. Moreover, further formalizing the suspension process and escalating its formality and adversary nature may not only make it too costly as a regular disciplinary tool but also destroy its effectiveness as part of the teaching process. . .."[6] Before and after Goss, courts have consistently refused to impose stricter, adversarial, "trial-like procedures and proof on public school suspension proceedings.[7] Instead, an informal meeting between the school official and a student or between the official and a student and his parents has been held to comport with due process.[8] *415 Plaintiff protests that he was not provided with enough detail to allow him to refute the charges and, additionally, that the formal grounds given in the written notice of suspension did not match the reasons given orally by Denham in the pre-suspension meeting. Defendants assert plaintiff was informed about the complaints made against him and given an opportunity to respond to them. We agree. First, we conclude Denham adequately explained the reasons for the suspension to plaintiff. Although Denham did not identify plaintiffs accusers, he offered sufficient descriptions of diddling and simulated masturbation to allow plaintiff to deny he had ever engaged in such distinctive and inappropriate activity. Furthermore, plaintiff had admitted making comments or gestures that could be construed negatively and also unintentionally touching a girl who strongly objected. No more was required to advise plaintiff about the accusations against him. Nor was he entitled to know the identities of his accusers especially in a case involving sexual misconduct.[9] Disclosing those identities might have exposed Denham and the school to lawsuits by the complainants. Additionally, the reasons for suspension given by Denham in the meeting were the same as the grounds listed in the notice of suspension, the only difference being that in the notice the reasons were expressed in specific statutory language. Section 48900 of the Education Code lists the following as grounds for suspension: "A pupil may not be suspended from school . . . unless the superintendent or the principal of the school in which the pupil is enrolled determines that the pupil has committed an act as defined pursuant to one or more of subdivisions (a) to (q), inclusive: "[(a)](2) Willfully used force or violence upon the person of another, except in selfdefense. "[¶] [¶] "(i) Committed an obscene act or engaged in habitual profanity or vulgarity. "[¶] . . . [¶] "(n) Committed . . . a sexual battery as defined in Section 243.4 of the Penal Code." Education Code section 48900.2 also permits suspension for sexual harassment: "In addition to the reasons specified in Section 48900, a pupil may be suspended from school . . . if the superintendent or the principal of the school in which the pupil is enrolled determines that the pupil has committed sexual harassment as defined in Section 212.5. "For the purposes of this chapter, the conduct described in Section 212.5 must be considered by a reasonable person of the same gender as the victim to be sufficiently severe or pervasive to have a negative impact upon the individual's academic performance or to create an intimidating, hostile, or offensive educational environment." Education Code section 212.5 similarly describes sexual harassment to mean "unwelcome sexual advances, requests for sexual favors, and other verbal, visual, or physical conduct of a sexual nature, made *416 by someone from or in the work or educational setting, under any of the following conditions: "(c) The conduct has the purpose or effect of having a negative impact upon the individual's work or academic performance, or of creating an intimidating, hostile, or offensive work or educational environment." Certainly, everything of which plaintiff was accused—obscene gestures and comments, simulated sexual acts, diddling, and groping—could properly be identified by Denham, as a high school principal, as sexual harassment under Education Code sections 212.5 and 48900.2, meaning "unwelcome sexual advances, requests for sexual favors, and other verbal, visual, or physical conduct of a sexual nature, made by someone from or in the . . . educational setting. . .." The same conduct also fits the definition of Education Code section 48900, subdivision (i), prohibiting "an obscene act or engaging] in habitual profanity or vulgarity." Additionally, plaintiffs uninvited touching of other boys and a girl could qualify as "the wilful use of force or violence" or sexual battery.[10] The use of statutory language in the notice of suspension to describe plaintiffs offenses, as well as the addition of other grounds for the suspension, did not violate due process.[11] The record also does not support that defendants violated any right of substantive due process. A school suspension is an executive decision that does not implicate rights of substantive due process if "proper procedural protections are afforded,"[12] as they were here. In the absence of any constitutional due process violation, plaintiffs section 1983 claim fails.[13] 4. Due Process Under State Law and Administrative Regulations Although no damages or attorney's fees were recoverable except under section 1983,[14] we briefly address plaintiffs other claims. Just as there was no constitutional due process violation, there was no violation of the suspension procedures set forth in the Education Code. Education Code section 48911, subdivision (b), provides that a suspension must be preceded by an "informal conference" between the principal and the student. That is what occurred here. We reject plaintiffs argument that he could not be suspended for a first offense. Education Code section 48900.5 allows suspension under section 48900, subdivision (a), for a first offense for the use of force or violence on another person or if "the pupil's presence . . . threatens to disrupt the instructional process." Both those elements were established. Even if Denham based the suspension solely on the incident in which plaintiff purportedly grabbed a girl's buttocks, that conduct qualifies for a first-time suspension under section 48900, subdivision (a), both as the use of force on another person and as a threat to the instructional process. For the same reason, we reject plaintiffs contention *417 that section 48900.5 required the principal to impose alternative forms of discipline before suspension. Lastly, there was no violation of Redlands Unified School District Administrative regulation No. 5144.1. The regulation authorizes first-time expulsion for causing, attempting, or threatening physical injury to another person. The regulation also authorizes first-time expulsion for committing an obscene act or disrupting school activities, in conjunction with threatening to disrupt the instructional process. Plaintiff argues he could not be suspended on the first occasion for acts constituting sexual harassment, obscene acts, wilful use of force or violence, or sexual battery. He characterizes the Education Code as a "menu" from which a school district can choose grounds for expulsion. In other words, plaintiff interprets Regulation 5144.1 as repealing the statutory grounds for suspension enacted under the Education Code. Plaintiffs brief asserts "[i]t is fundamental and undisputable that an administrative agency may place more restrictions on itself than are placed on it by the Legislature, the state [Constitution, or the United States Constitution." What plaintiff actually argues is that the school district can adopt fewer grounds for suspension than state law allows. Plaintiff offers no authority for this startling interpretation of administrative fiat. But the recent case of Martin v. Shawano-Gresham School District, recognizes suspension is justified under state law even when the grounds for suspension are not expressly stated under school rules. In that case, the school prohibited the use of tobacco and state law prohibited possession of tobacco. The court held the student was properly suspended for possession.[15] Here we hold plaintiff was properly suspended for the grounds stated in the notice of suspension. 5. Disposition Our decision on the issue of due process disposes of all the other issues raised in the appeal and the cross-appeal. In particular, it eliminates any possibility that plaintiff could have overcome the defense of qualified immunity because plaintiff could not have proved that defendants violated a right "clearly established at the time of the alleged violation."[16] As a final note, we join the Seventh Circuit in deploring the exploitation of the legal system to pursue a case of this ilk. A minor suspension of trivial effect, accomplished with proper constitutional safeguards, has resulted in a costly expenditure of judicial, public, and private resources: "Something has gone badly wrong when the scarce judicial resources of the . . . courts are brought to bear on a case which has so little merit as this one. This is the type of case that trivializes the work of the courts and the Constitution we seek to interpret. Moreover, these cases divert judicial energy from litigants who have serious and valid claims."[17] We also adopt the sentiments of Judge Kozinski expressed in a case where he called the complaint of a disciplined student "a triumph of petulance over common sense. A teenager who gets into trouble . . . might, for lack of mature judgment, feel that [he] is the one who has been wronged. But [he] can't turn such wishful thinking into a lawsuit without support from [his] parents and the services of a lawyer-adults who do not have youth and *418 inexperience as excuses. Before bringing suit, [a student's] parents might profitably have pondered their own culpability. . .. [A parent-lawyer] might have thought about whether it was right to impose the cost, risk and pain of a lawsuit on a civil servant who acted responsibly under difficult circumstances. . .. [The student] and the adults who abetted [him] might all have taken a lesson in common sense from the other students who . . . suffered the same `harm'—but did not make a federal case out of it. "There are, unfortunately, too many instances of genuine official abuse. [Citations.] Our ability to deal with such cases is diminished when the civil rights laws are trivialized as they were here. It reflects ill on the legal profession and our litigious society...."[18] We reverse the judgment and award defendants their costs as the prevailing party. We concur: McKINSTER, Acting P.J., and RICHLI, J. NOTES [*] Kennard, J., dissented. [1] Beale, P. A Concise Dictionary of Slang and Unconventional English (1989). [2] Goddard v. South Bay Union High School Dist. (1978) 79 Cal.App.3d 98, 105, 144 Cal. Rptr. 701; California School Employees Assn. v. Kern Community College Dist. (1996) 41 Cal.App.4th 1003, 1008, 48 Cal.Rptr.2d 889. [3] Epperson v. Arkansas (1968) 393 U.S. 97, 104, 89 S.Ct. 266, 21 L.Ed.2d 228; Bethel School Dist. No. 403 v. Fraser (1986) 478 U.S. 675, 686, 106 S.Ct. 3159, 92 L.Ed.2d 549; Hazelwood School District v. Kuhlmeier (1988) 484 U.S. 260, 274-276, 108 S.Ct. 562, 98 L.Ed.2d 592. [4] Goss v. Lopez (1975) 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725. [5] Goss v. Lopez, supra, 419 U.S. at pages 581-582, 95 S.Ct. 729. [6] Goss v. Lopez, supra, 419 U.S. at page 583, 95 S.Ct. 729. [7] West v. Derby Unified School District No. 260 (10th Cir.2000) 206 F.3d 1358, 1364; Charles S. v. Board of Education (1971) 20 Cal.App.3d 83, 92, 97 Cal.Rptr. 422. [8] Martin v. Shawano-Gresham School District (2002) 295 F.3d 701, 706-707; Smith v. Severn (7th Cir.1997) 129 F.3d 419, 428; C.B. v. Driscoll (11th Cir.1996) 82 F.3d 383, 385-386; Charles S. v. Board of Education, supra, 20 Cal.App.3d at page 94, 97 Cal.Rptr. 422. [9] Section 48918, subdivision (f); California Code of Regulations, title 5, section 4621, subdivision (a); Coplin v. Conejo Valley Unified School District (C.D.Cal.1995) 903 F.Supp. 1377, 1382-1383, citing Newsome v. Batavia Local School District (6th Cir. 1988) 842 F.2d 920, 924-925 and Brewer v. Austin Independent School District (5th Cir. 1985) 779 F.2d 260, 263. [10] Education Code section 48900, subdivisions (a)(2) and (n). [11] Smith v. Severn, supra, 129 F.3d at pages 427-428. [12] C.B. v. Driscoll, supra, 82 F.3d at page 387. [13] Parratt v. Taylor (1981) 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420, overruled on other grounds in Daniels v. Williams (1986) 474 U.S. 327, 330, 106 S.Ct. 662, 88 L.Ed.2d 662; Baker v. McCollan (1979) 443 U.S. 137, 140, 99 S.Ct. 2689, 61 L.Ed.2d 433. [14] Tirpak v. Los Angeles Unified School Dist. (1986) 187 Cal.App.3d 639, 644, 232 Cal.Rptr. 61. [15] Martin v. Shawano-Gresham School District, supra, 295 F.3d at page 706, footnote 4. [16] Wilson v. Layne (1999) 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818. [17] Smith v. Severn, supra, 129 F.3d 419, 430. [18] Smith v. McGlothlin (9th Cir. 1997) 119 F.3d 786, 788-789.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2283795/

338 S.W.3d 230 (2011) Jason RILEY; and The Courier-Journal, Inc., Appellants, v. Honorable Susan Schultz GIBSON, Judge, Jefferson Circuit Court, Appellee. and Commonwealth of Kentucky; and Don Sinclair Fielder, Real Parties in Interest. No. 2010-SC-000619-MR. Supreme Court of Kentucky. May 19, 2011. *232 Jon. L. Fleischaker, Jeremy Stuart Rogers, Caroline Lynch Pieroni, Dinsmore & Shohl, LLP, Louisville, KY, for appellants. Hon. Susan Schultz Gibson, Judge, Jefferson Circuit Court, Louisville, KY, for appellee. Erin Clark White, Assistant Commonwealth Attorney, Office of the Commonwealth's Attorney, Louisville, KY, for Commonwealth of Kentucky, Real Party in Interest. Amy Irene Hannah, Louisville, KY, for Don Sinclair Fielder, Real Party in Interest. Opinion of the Court by Justice NOBLE. Appellants, Jason Riley and the Courier-Journal, Inc., appeal the Court of Appeals' denial of a writ of mandamus or prohibition requiring media access to a juror contempt hearing. Because a right of access does extend to criminal contempt hearings, the Court of Appeals is reversed. I. Background This case arises out of a hearing held by Jefferson Circuit Court Judge Susan Schultz Gibson to address a juror's alleged disobedience of the court's admonition to avoid publicity about the case. Immediately after the verdict had been issued, two jurors alleged that a third juror had disobeyed the court's admonition by seeking out television coverage online. The Commonwealth moved for a mistrial based on these allegations. Instead, the judge questioned the third juror about the accusation in open court, and that juror denied any wrongdoing. No other evidence was presented. The judge then ruled that any alleged juror misconduct did not impact the verdict, and denied the Commonwealth's motion for a mistrial. The trial court subsequently issued subpoenas for the three jurors, two accusers and one accused, to appear on May 10, 2010 for a "contempt of court" hearing. When they arrived, the judge took the jurors into chambers and asked each to state his position. The accused juror was not represented by counsel, and was not allowed to cross-examine the two accusers. Excluded from this hearing were the Commonwealth's Attorney and Appellant Riley, a reporter from the Courier-Journal, both of whom objected to their exclusion. Following the hearing, the trial court determined that there was insufficient evidence to find the accused juror to be in contempt of court, and again allowed the verdict to stand. At this point, Appellants restated in writing their objection to the closure of the hearing and moved for immediate release of a recording of the hearing. The court granted this motion and the recording of the hearing was released. Dissatisfied by this result, Appellants filed a petition for a writ of mandamus or prohibition against Judge Gibson's closure of the hearing. The Court of Appeals denied the writ for mootness. That ruling is on appeal to this Court as a matter of right. CR 76.36(7). II. Analysis Before addressing the merits of the writ, this Court must address whether the case *233 is moot, and if so, what effect that has on the availability of a writ. A. Mootness This case is unquestionably moot. The contempt hearing that the media sought access to is over. No one is requesting that the trial court now redo the contempt hearing to allow media access. Indeed, as evidence of mootness, no one has filed a response to Appellants' request for the writ. Appellants themselves do not desire relief particular to this case but believe a writ will serve to bar exclusion of the media in future contempt proceedings. In other words, while Appellants admit mootness, they believe this matter must be resolved now, in an advisory manner, because it is capable of repetition, yet evading review. "Capable of repetition, yet evading review" is a well-recognized exception to the mootness doctrine, although one to be used sparingly. Because claims for live media access, such as this one, inherently seek relief from situations that abruptly and completely expire after a hearing is complete, they tend to fall into this category of being capable of repetition, yet evading review. For example, in Lexington Herald-Leader Co. v. Meigs, 660 S.W.2d 658, 660 (Ky.1983), members of the press had unsuccessfully objected to their exclusion from voir dire proceedings. The press sought immediate relief in the Court of Appeals, and this Court remanded and ordered the trial court to conduct a hearing on the propriety of closing the proceedings. Reaching the same conclusion about conducting individual voir dire, the court again denied access to the media, who again filed a writ petition. But by the time they were able to obtain a hearing, voir dire had been completed. Id. at 661. The Court of Appeals, therefore, dismissed the petition as moot. See id. Finding the problem of media exclusion from voir dire capable of repetition, yet evading review, this Court found the dismissal for mootness to be error. Id. The Court quoted the United States Supreme Court's determination that "because criminal trials are typically of `short duration,' such an order will likely `evade review.'" Id. (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S. Ct. 2613, 73 L. Ed. 2d 248 (1982)). Because a live case or controversy on these facts would likely continue to evade the Court's adjudication in the future, the Court issued an opinion. See id. Ultimately, though the media exclusion was initially erroneous, this Court concluded that the error was cured by the trial court's hearing, and affirmed the exclusion based on the trial court's reasons for the exclusion. This case is equally capable of repetition, yet evading review. Private contempt hearings carry the same inherent immediacy and expiration as private voir dire. Thus, this Court concludes that this case fits within the limited exception to mootness for cases that are technically moot but are capable of repetition while evading review. Consequently, after exercising caution in approaching a moot case, it is appropriate to consider the writ petition itself. B. Appropriateness of Writ A writ of prohibition or mandamus is an extraordinary form of relief and should not freely be granted. The two situations where a writ may normally be appropriate are (1) [where] the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court; or (2) [where] the lower court is acting or is about to act erroneously, although within its jurisdiction, and *234 there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted. Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004). We need not analyze whether either of these circumstances arise here, however, for this Court has recognized sui generis availability of writs by the media seeking trial access. Central Kentucky News-Journal v. George, 306 S.W.3d 41, 44 (Ky.2010). "In short, `to preserve higher values,' the news media have been made an exception to the usual rules regarding standing to intervene and standing to seek mandamus where access is denied." Courier-Journal and Louisville Times Co. v. Peers, 747 S.W.2d 125, 128 (Ky.1988). "Such must be the case . . . because `[t]he First Amendment guarantee of freedom of the press and the Sixth Amendment guarantee of public trial in criminal cases, as presently interpreted and applied in judicial decisions, have placed the news media in a unique position in demanding access to court proceedings. . . .'" George, 306 S.W.3d at 44 (quoting Peers, 747 S.W.2d at 127-28). Although this precedent has treated the media as excepted from the standard requirements for a writ, its analysis could equally be used to explain why such petitions by the media are likely to satisfy the requirements of the second type of writ described in Hoskins v. Maricle. Such a writ has two criteria for availability: there exists no adequate remedy by appeal or otherwise; and great injustice and irreparable injury would result if the petition is not granted. Since the media seeking access to court proceedings is never itself party to those proceedings, it has no alternate remedy aside from a writ petition. Because the injury the media claims in such actions is potentially an abridgement of its First Amendment right to access information, great injustice and irreparable injury would indeed result if a meritorious petition were to be denied. Thus, due to the media's unique third-party interest in cases such as this, a writ is potentially an appropriate remedy. C. Right of Access Turning to the merits of the writ petition, we must first note that the United States Supreme Court held in In re Oliver, 333 U.S. 257, 68 S. Ct. 499, 92 L. Ed. 682 (1948), that a person charged with contempt, that is, the contempt defendant, is entitled to "be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf. . . ." Id. at 508-509. Further, "[i]t is the `law of the land' that no man's life, liberty or property be forfeited as a punishment until there has been a charge fairly made and fairly tried in a public tribunal." Id. at 510 (emphasis added). But this right belongs to the contempt defendant, not the media. The question, then, is whether the media enjoys a separate right of access to contempt hearings. Appellants' request for access to contempt hearings is grounded in the freedom of the press provided by the First Amendment. Of course, no explicit "right of access" can be found in the First Amendment, or anywhere else in the Constitution. Neither Freedom of Speech nor of the Press directly provides such a right. Those First Amendment provisions, on their face, concern the freedom to express information and ideas, not the right to gather information and ideas; in other words, they protect output, not input. However, the United States Supreme Court has declared that these freedoms of *235 expression may sometimes imply a constitutional right of access. "[W]ithout some protection for seeking out the news, freedom of the press could be eviscerated." Branzburg v. Hayes, 408 U.S. 665, 681, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972). Thus, the Court has allowed this implicit right where access to certain proceedings, or documents, is essential for bedrock First Amendment expression to be exercised. The question presented here is whether the hearing in this case is such a proceeding to require media access. Appellants claim that the U.S. Supreme Court has recognized the extension of this freedom to criminal contempt proceedings. They state that in Richmond Newspapers v. Virginia, 448 U.S. 555, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980), "the U.S. Supreme Court recognized that the First Amendment right of access applies not only to criminal trials but also to contempt hearings." This Court is bound by the United States Supreme Court's decisions on all matters of federal law, including, obviously, the First Amendment. Thus, a Supreme Court opinion applying the right of access to contempt hearings would bind this Court's resolution of this case. The only mention of contempt hearings in Richmond Newspapers is indirect and appears in its discussion of Levine v. United States, 362 U.S. 610, 80 S. Ct. 1038, 4 L. Ed. 2d 989 (1960). The Court noted that Levine had held that even criminal contempt hearings, while not within the Sixth Amendment realm of "criminal prosecutions," still must meet the due process requirement of the Fourteenth Amendment. Richmond Newspapers, 448 U.S. at 574-75, 100 S. Ct. 2814 (citing Levine, 362 U.S. at 616, 80 S. Ct. 1038). Though it did not decide the exact question of media access to contempt proceedings, Richmond Newspapers went on to hold that the long history and logic of allowing public access to criminal trials demonstrated the existence of the right implicitly in the First Amendment. This analysis established what has become known as the two-tiered history-and-logic test. "These considerations of experience and logic are, of course, related, for history and experience shape the functioning of governmental processes. If the particular proceeding in question passes these tests of experience and logic, a qualified First Amendment right of public access attaches." Press-Enterprise v. Superior Court II, 478 U.S. 1, 9, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986). In cases where the Supreme Court has extended a right of access to certain proceedings, it has emphasized that public access to such proceedings serves an integral public purpose. Importantly, protecting the defendant himself does not provide sufficient logical grounds for extending this right, as that interest is vindicated instead by the Sixth Amendment and the Due Process Clause. Levine, 362 U.S. at 616, 80 S. Ct. 1038. A First Amendment right of access is only needed to supplement the rights of a defendant where the public itself is invested in the proceeding. The Supreme Court has stated that "[t]he value [to the public] of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known." Press-Enterprise v. Superior Court I, 464 U.S. 501, 508, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984). But why does the public itself care what occurs during such criminal trials? The Court explained, This openness has what is sometimes described as a `community therapeutic value.' Criminal acts, especially violent crimes, often provoke public concern, *236 even outrage and hostility; this in turn generates a community urge to retaliate and desire to have justice done. Whether this is viewed as retribution or otherwise is irrelevant. When the public is aware that the law is being enforced and the criminal justice system is functioning, an outlet is provided for these understandable reactions and emotions. Proceedings held in secret would deny this outlet and frustrate the broad public interest; by contrast, public proceedings vindicate the concerns of the victims and the community in knowing that offenders are being brought to account for their criminal conduct by jurors fairly and openly selected. Id. at 508-09, 104 S. Ct. 819. This community therapy is provided by public access to most, if not all, stages of standard criminal prosecutions. See Richmond Newspapers, 448 U.S. 555, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980) (criminal trials); Press-Enterprise I, 464 U.S. 501, 104 S. Ct. 819 (some preliminary hearings); Press-Enterprise II, 478 U.S. 1, 106 S. Ct. 2735 (voir dire). Thus, if it can be established that all defendants, or the public at large, have a stake in the process and outcome of such proceedings, then public access must be allowed. Clearly, this would include public access to criminal contempt proceedings, which are analogous to criminal trials in general, given that the purpose of criminal contempt proceedings is to impose punishment. The public's interest in access is to make sure that the court's contempt power is not being abused, either to the unfair benefit or detriment of those accused of acting contemptuously. This interest is sufficient to require access under the First Amendment. The question, then, is whether the hearing in this case was actually a contempt hearing. Interestingly, the trial court in this case held two hearings regarding the alleged contempt. The first hearing was held immediately after the verdict came in, when two jurors approached the court to complain about the acts of a third. The accused juror was questioned at length on the record, and denied the accusations. In her ruling after the juror testimony, the trial judge did not address the alleged contempt directly, but instead held that even if the juror had done as charged, it had no effect on the verdict. This ruling essentially found the alleged behavior to be harmless. However, on reflection, the trial court decided to make an additional record regarding the conduct, and subpoenaed all three jurors to appear on May 10, 2010 for a contempt hearing. Over objection from the Courier-Journal and the Commonwealth, they were taken to the judge's chambers rather than being heard in open court. The hearing was recorded, and the judge explained that because of the allegations made after the trial, she was making a record, and all she wanted to hear was "a bare statement" by each juror of what they heard or said. All three jurors made their statement, and then the trial court commented that she was required to "follow up" on good faith allegations by confronting the person accused and making a record. She further explained that "in order to hold anybody in contempt, I need to find by clear and convincing evidence that the contempt occurred." In conclusion, she expressed a need to "be very cautious about ever holding a juror in contempt, because it's such an incredible chilling effect on the jury system," and stated that she did not find that there was clear and convincing evidence of a willful violation of her juror conduct order. She further concluded that she had brought the jurors in because this issue had caused "80 *237 or 90 man hours" of delay. She then told the jurors they were free to go. The trial court then informed the prosecutor and the Courier-Journal that she had decided not to hold anyone in contempt, and that she would give them a recording of the hearing. The Courier-Journal followed this with a written objection to being excluded, and a request for immediate possession of the recording, which the court granted. The transcript of the contempt hearing demonstrates the problem the trial court Was having in protecting the sanctity of the jury process and addressing a possible contempt of court. Courts have long protected the historic privacy of jury deliberations. This historic privacy generates much value to the sanctity of trials. As Justice Cardozo articulated, "Freedom of debate might be stifled and independence of thought checked if jurors were made to feel that their arguments and ballots were to be freely published to the world." Clark v. United States, 289 U.S. 1, 13, 53 S. Ct. 465, 77 L. Ed. 993 (1933). More recently, Justice Blackmun explained that "[t]he State has a similar interest in protecting juror privacy, even after the trial—to encourage juror honesty in the future. . . ." Press-Enterprise I, 464 U.S. at 515, 104 S. Ct. 819 (Blackmun, J., concurring). In dealing with jurors, this is an administrative duty of the court which must be balanced with actual misconduct by a juror. There is continuing confusion about the process and parameters of an action for contempt. Unfortunately, many courts exercise this inherent power to protect the sanctity of the courts without regard for the type of contempt alleged and the type of penalty to be given to one held in contempt. A contempt is "willful disobedience toward, or open disrespect for, rules or orders of court." Commonwealth v. Burge, 947 S.W.2d 805 (Ky.1996). A contempt occurring in the presence of the court is direct contempt, while a contempt committed outside the presence of the court is indirect contempt. Id. at 808. A contempt may be civil, which requires performance of a court order, or criminal, which allows punishment rather than obedience. Id. The latter requires a hearing and presentation of evidence, and must comport with due process, including the right to counsel and public access. Commonwealth v. Pace, 15 S.W.3d 393 (Ky. App.2000); In re Oliver, 333 U.S. 257, 68 S. Ct. 499, 92 L. Ed. 682 (1948). If a court intends to punish a defendant for contempt with a serious fine for a single contempt, or confinement in excess of six months, there must be a trial by jury. Codispoti v. Pennsylvania, 418 U.S. 506, 94 S. Ct. 2687, 41 L. Ed. 2d 912 (1974). Jurors may be punished for criminal contempt for disobeying the orders of the court. KRS 432.230. Clearly, the trial court here was trying to balance respectful treatment of a juror with a possibility that she may have to punish a juror for misconduct. During a juror's term of service, the trial court has the additional duty of jury management, ensuring that jurors are available and present for trial, that they are properly instructed on their conduct, and following up on indications that they might have violated that conduct requirement. In doing this, the trial court has any number of communications with some or all of the jury venire outside the confines of any specific trial. From the scant record before us, it appears that the trial court may have been prepared to issue a contempt ruling and punishment if her further inquiries convinced her that the accused juror had committed the contempt. However, the "hearing" was not an appropriate contempt hearing, lacking the requisite due process. *238 The juror was not represented by counsel; the juror was not allowed to cross-examine his accusers, and there was no public access. By questioning the jurors in her chambers, the trial court recognized the importance of protecting jury deliberations, even after trial, and referenced the fact that she had no wish to cause a "chilling effect" on future jurors. What she was really doing was examining jurors about their respect for the importance of the court's orders, and whether one juror in particular had disobeyed her orders. Thus, despite the judge's apparent willingness to hold the juror in contempt, this hearing could be viewed more as a preliminary investigation as part of the court's power to manage the jury, rather than a true contempt hearing. From such a preliminary inquiry, the trial court could have decided to hold a full contempt hearing by issuing a rule or show cause order, followed by a public hearing at which the accused was represented by counsel, had the right to testify, present witnesses, and question all witnesses, and which was tried to a jury if more than six month's confinement or a serious fine was an option. Nonetheless, as far as the media was concerned, this hearing was labeled a criminal contempt proceeding, and as such, the media was entitled to be present, as was the public at large. If the court had intended simple jury management, practice would have allowed an initial inquiry to the jurors, which would not have required placement on a docket or making a record. Such a limited inquiry should be kept separate from an actual, formal contempt proceeding. Although conducted improperly, due to the time spent on the issue and the desire to make a record, we conclude that the trial court intended a contempt hearing in this instance. Because the public's interest in a criminal contempt proceeding is essentially the same as its interest in any criminal trial, criminal contempt proceedings must be open to the public, including the media. Although it is arguable here that after the first hearing the court was more interested in making a record to support her trial ruling denying a mistrial, the second proceeding, labeled a contempt hearing, must be taken at face value and regarded as such for purposes of public access. It is not sufficient to hold the hearing first, and then determine what it is. The media and the public have the right to rely on what the docket says in pursuing their right to access. III. Conclusion For the aforementioned reasons, the Court of Appeals' denial of a writ of mandamus or prohibition on grounds of mootness is reversed. An exception to the mootness doctrine allows the media to pursue a writ when a case is capable of repetition but evades review. Additionally, The Courier-Journal and Mr. Riley are entitled to a writ stating that criminal contempt hearings are to be afforded public access. Public access is not required, however, for the court's jury management functions, which are to be kept separate from contempt proceedings. MINTON, C.J.; ABRAMSON, CUNNINGHAM, and VENTERS, JJ., concur. SCHRODER, J., concurs in result only by separate opinion in which SCOTT, J., joins. SCHRODER, J., concurring in result only: The majority struggles too much to uphold the right of access in this case. In my view, the case is a simple one. The right of the public and press to attend criminal trials is implicit in the guarantees of the First Amendment. Richmond Newspapers, Inc. v. Virginia, 448 U.S. *239 555, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980). The proceeding at issue was to consider punishing a juror for disobeying the trial court's admonition in a prior trial. This is a criminal contempt trial. It is subject to the press and public's right of access. Id. Case closed. SCOTT, J., joins.

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10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2284735/

120 Cal.Rptr.2d 714 (2002) 99 Cal.App.4th 11 In re JOY M., a Person Coming Under the Juvenile Court Law. Orange County Social Services Agency, Plaintiff and Respondent, v. Joseph B., Defendant and Appellant. No. G029812. Court of Appeal, Fourth District, Division Three. June 6, 2002. *715 Michael D. Randall, Los Angeles, under appointment by the Court of Appeal for Defendant and Appellant. Benjamin P. de Mayo, County Counsel, and Julie Agin, Deputy County Counsel for Plaintiff and Respondent. Jacquelyn E. Gentry, under appointment by the Court of Appeal for the Minor. Certified for Partial Publication.[*] OPINION O'LEARY, J. Joseph B.[1] appeals the juvenile court's jurisdiction and disposition orders regarding his daughter, Joy M., contending: (1) the court improperly relied on a psychological evaluation report to deny family reunification services; (2) the court otherwise erred by denying such services; (3) the court should have allowed monitored telephone visitation between Joseph and Joy; and (4) insufficient evidence supported one of the grounds for the court's jurisdictional finding. We affirm. *716 * * * Joseph had a long history of paranoid schizophrenia, but his stepmother claimed he did "wonderfully" when he complied with his treatment. Joy's mother, who had a history of mental illness and hospitalizations, disappeared when Joy was a baby. Cynthia B. became Joy's babysitter, and within a short time she began to date Joseph. They eventually married, and the marriage lasted about seven years. The marriage was strained by Joseph's mental illness, failure to take his medication regularly, drug and alcohol abuse, and sudden rages and domestic violence. Before the couple separated, Joseph's inappropriate behavior increased, including the throwing and breaking of objects and assaultive behavior toward Joy and Cynthia. In a reported incident in 1998, Joseph kicked and pinched Joy. Cynthia separated from Joseph in August 2000, and they divorced in December. Joseph had custody of Joy, but Cynthia had visitation every Wednesday and every other weekend. Things did not go well from there. Joy was unkempt and dirty and complained she was often hungry. A child abuse report was filed against Joseph three weeks after he and Cynthia separated. It contained allegations Joseph neglected Joy and struck her on the head and shoulders. The report was deemed inconclusive, however. Another report, filed in November 2000, substantiated claims of neglect and minor battery. Joseph claimed at the time that the television was evil and talked to him. A third report indicated Joseph's condition was deteriorating and he was in denial about his mental illness. He was not taking his medication and was drinking. The social worker observed increasing risk and noted Joy basically cared for herself. The incident leading to dependency proceedings occurred in May 2001. When Cynthia arrived to pick up Joy for a Wednesday visit, Joseph became especially violent. He screamed and engaged Cynthia in a scuffle. Joy was sandwiched between them, and when Joseph pushed Cynthia off the porch, both she and Joy fell. Joseph began hitting Cynthia but was stopped by a neighbor. When the police arrived, Joseph told them he had never been married and he did not know Cynthia. He claimed, in essence, Cynthia had tried to kidnap Joy. He was arrested and charged with inflicting injury on a child and cruelty to a child. Joy said she was always afraid of her dad and he was mean, yelled at her, and called her names. She indicated Joseph had not been taking his medication regularly and she was often hungry. Joy was released to Cynthia, whom she called "mom." Joseph was in custody at the detention hearing and remained in jail or involuntarily hospitalized during most of the dependency proceedings.[2] A social worker interviewed him at the jail in June, and although he denied suffering from mental illness and claimed he regularly took his medications, he spoke in incomplete sentences and used meaningless words. Joseph's jail psychiatric case manager reported he was unstable and uncooperative and avoided treatment. He was suffering from delusions and the staff was unsure whether he was swallowing his medication. At the detention hearing, the social worker requested psychological evaluations to determine Joseph's functional *717 level, but that request was denied after Joseph objected. In her jurisdiction/disposition report in late June, the social worker again requested the evaluations, specifying they were necessary to determine whether Joseph could benefit from reunification services. While he was out of custody awaiting the jurisdiction hearing, Joseph was uncooperative with his care coordinator at the county mental health department. He refused psychiatric treatment, including medication and therapy. He was not functional at all, seeming angry and depressed over losing custody of Joy. The care coordinator believed Joseph needed hospitalization and a conservator. Joseph's former psychiatrist told the social worker Joseph is clearly psychotic and disorganized. He treated Joseph for six to nine months sometime before Joy was taken from him. Joseph apparently cooperated with the treatment program then, but the psychiatrist had not seen him recently. The psychiatrist opined that if Joseph was refusing medication and was secluding himself in his residence, he would not benefit from reunification services, and it might not be safe to have Joy reside with him. While the jurisdiction hearing was pending, Joy said she did not want to return to her father and never wanted to see him again. Joy initially indicated she might be willing to speak with him on the telephone but later refused to do so. She was happy and doing well in Cynthia's care. At the jurisdiction hearing in mid-August, Joseph submitted the case on the social worker's reports. The court struck allegations of drug and alcohol use but otherwise sustained the petition. The petition contained allegations Joseph suffered from an unresolved mental illness, his ability to care for Joy was impaired, Joy was exposed to domestic violence in the home, and Joseph remained incarcerated in the jail's psychiatric unit. The Orange County Social Services Agency (SSA) again asked the court to appoint two mental health care professionals to evaluate whether Joseph would benefit from reunification services and asked for a 30-day continuance to facilitate the reports. Joseph's attorney objected to the appointment and objected to the continuance, saying Joseph had not been given notice SSA would seek to deny reunification services on the ground he was mentally disabled. Counsel for SSA noted the social worker's June report contained a recommendation for evaluations for that purpose, and the court ordered two professionals qualified under the Family Code to be appointed to evaluate whether Joseph would benefit from reunification services. It continued the hearing for one month. A psychiatrist and a psychologist were appointed to do the written evaluations. The psychiatrist reported Joseph was being held involuntarily in a psychiatric ward. He was in denial about his mental illness and constantly spat out oral medication, requiring an emergency injection of antipsychotic and antianxiety drugs. His psychotic behaviors were increasing, and he was disorganized, agitated, and hallucinating. Nevertheless, Joseph believed he was the perfect father. The psychiatrist concluded Joseph's mental illness and antisocial behavior made it likely Joy would be abused and neglected if she were returned to his custody and it was unlikely he would benefit from reunification services within a year. The psychiatrist recommended no visitation. In her report, the psychologist opined Joseph suffered from severely disabling mental illness and he presently was unable *718 to benefit from reunification services. She concluded he would be a danger to Joy's physical and emotional health until he could be psychiatrically stabilized. She also recommended against visitation. At the disposition hearing, the court accepted a social worker's addendum report and the psychiatric reports into evidence without objection. The social worker testified Joy continued to refuse contact with Joseph and noted both evaluations recommended against visitation. Joseph testified he had no mental health problems and did not think he needed his medications, although he would "probably" take them if released because otherwise another evaluation might be necessary. Joseph said he had been taking his medications orally and denied receiving any injections. He expressed a willingness to see Joy again but did not know she had refused to see him. At the end of the hearing, Joseph's counsel argued the evidence was insufficient because the psychologist was not qualified under law to opine whether Joseph would benefit from reunification services. The court disagreed, declared Joy a dependent child, took legal custody from Joseph, and denied reunification services. The court ordered no visits between Joseph and Joy pending a six-month review hearing based on the evaluator's recommendations but authorized SSA to allow visits if Joy's therapist believed it would be in her best interests. I Joseph argues the evidence was insufficient to deny reunification services because the court improperly relied on the psychologist's report when nothing in the record showed she was qualified to render her opinion. He forfeited that claim by failing to object to the report at trial. Welfare and Institutions Code section 361.5, subdivision (b)[3] specifies when a court may deny reunification services. It provides in relevant part: "Reunification services need not be provided ... when the court finds, by clear and convincing evidence, any of the following: [¶] ... [¶] (2) That the parent or guardian is suffering from a mental disability that is described in Chapter 2 (commencing with Section 7820) of Part 4 of Division 12 of the Family Code and that renders him or her incapable of utilizing those services." Subdivision (c) of section 361.5 speaks to the proof required under subdivision (b)(2) and provides in relevant part: "When it is alleged ... that the parent is incapable of utilizing services due to mental disability, the court shall order reunification services unless competent evidence from mental health professionals establishes that, even with the provision of services, the parent is unlikely to be capable of adequately caring for the child...." As relevant, Family Code section 7827, which is a part of the Family Code chapter referenced in section 361.5, reads: "(a) `Mentally disabled' as used in this section means that a parent or parents suffer a mental incapacity or disorder that renders the parent or parents unable to care for and control the child adequately. [¶] ... [¶] (c) ... [T]he evidence of any two experts, each of whom shall be a physician and surgeon, certified either by the American Board of Psychiatry and Neurology or under Section 6750 of the Welfare and Institutions Code, [or] a licensed psychologist who has a doctoral degree in psychology *719 and at least five years of postgraduate experience in the diagnosis and treatment of emotional and mental disorders, is required to support a finding under this section." Joseph notes section 361.5, subdivision (c) requires "competent evidence from mental health professionals" and Family Code section 7827 provides that to be qualified, an examining psychologist must have a doctoral degree and at least five years of postgraduate experience. Because nothing in the record shows how much experience the examining psychologist had, Joseph concludes her evidence was incompetent and the evidence was insufficient to support the court's finding under section 361.5, subdivision (b). To address Joseph's claim, we must examine two pertinent cases on this topic, one of which arose in this court. In In re Catherine S. (1991) 230 Cal.App.3d 1253, 1257-1258, 281 Cal.Rptr. 746, the Court of Appeal found section 361.5, subdivisions (b)(2) and (c) engrafted the competency requirements for the evaluators contained in Civil Code section 232, subdivision (a)(6), the precursor to Family Code sections 7820 et seq. Since one of the psychologists who testified in that case was unquestionably not properly licensed, the court found the evidence was insufficient to support the denial of reunification services. Because the issue was insufficiency of the evidence, the court refused to apply a harmless error analysis. (In re Catherine S., supra, 230 Cal.App.3d at pp. 1257-1258, 281 Cal.Rptr. 746.) In In re Jennilee T. (1992) 3 Cal.App.4th 212, 222-223, 4 Cal.Rptr.2d 101, we dealt with a similar situation and distinguished Catherine S. We noted that unlike Catherine S. where the expert was unquestionably unqualified, nothing in the record in Jennilee T. showed either of the experts were unqualified. Indeed, affirmative evidence showed they were. (In re Jennilee T., supra, 3 Cal.App.4th at pp. 222-223, 4 Cal.Rptr.2d 101.) This case is unlike In re Jennilee T. and Catherine S. There was no evidence the examining psychologist was clearly unqualified, as in Catherine S., but nothing showed she was qualified, as in Jennilee T. The record is a blank on that point. If proof of the examiner's qualifications is an affirmative element of proof, the evidence was insufficient, and Joseph had no need to object to raise the issue on appeal. (See Martin v. Hall (1971) 20 Cal.App.3d 414, 421, 97 Cal.Rptr. 730 [not necessary to raise sufficiency issue in trial court].) On the other hand, if the examiner's qualifications relate solely to the issue of competency of the examiner's evidence on the issue of mental disability or propriety of unification services, failure to object to the evidence at trial forfeits the issue on appeal. (In re Tracy Z. (1987) 195 Cal.App.3d 107, 113, 240 Cal. Rptr. 445 [judgment based on incompetent evidence may be affirmed if no objection was lodged in trial court]; accord, In re Se. T. (2002) 95 Cal.App.4th 168, 176, fn. 25, 115 Cal.Rptr.2d 335.) Section 361.5, subdivision (c) requires "competent evidence from mental health professionals" to support the denial of reunification services. Family Code section 7827, subdivision (c) specifies "evidence of any two experts [with specified minimum qualifications] is required to support a finding [of mental disability] under this section." Does this language engraft an additional element onto the proof required to show a mental disability that will justify denial of reunification services? No. Testimony by medical professionals relating to mental disability is indisputably expert testimony. To testify as an expert, a witness must possess adequate *720 knowledge, training, and experience. But to challenge a witness on the ground of inadequate qualifications, the opponent of the testimony must lodge an objection, and the trial court determines the witness's competency as a preliminary fact. (Evid. Code, § 720, subd. (a); see also People v. Flores (1992) 7 Cal.App.4th 1350, 1359-1360, 9 Cal.Rptr.2d 754 [claim that witness lacked necessary expertise was forfeited due to lack of objection].) These longstanding rules establish that a proffered expert's competency is not an element of proof relating to the merits. We must consider whether the Legislature intended to change these rules as they relate to dependency matters when it enacted section 361.5 and Family Code section 7827. Neither section expressly makes the examiner's qualifications an element of proof. The sections merely require evidence from competent experts and Family Code section 7827, subdivision (c) states what minimum qualifications render an expert competent. The statutory language does not suggest the proponent of the evidence must submit affirmative proof of the qualifications. Thus, nothing in the statutes compels the conclusion the Legislature intended to upset the traditional rules requiring a challenge to an expert's competency to be made by an affirmative objection. This reading makes sense. As we see from this case, the court maintains a list of competent examiners. It expressly ordered that qualified experts be appointed. Indeed, if we did not find Joseph forfeited his attack on the expert's qualifications, we could find the court's express order had been properly executed, providing evidence both examiners were properly qualified. (Evid.Code, § 664 [presumption official duty has been regularly performed]; Estate of Crabtree (1992) 4 Cal.App.4th 1119, 1125, 6 Cal.Rptr.2d 224 [presumption applies to court clerks].) We have no reason to believe placing the onus on the party opponent to object to the proffered expert evidence will result in the admission of incompetent expert opinion. Joseph asserts that if an objection was necessary, he objected adequately to preserve the issue. His attorney failed to object, however, when SSA offered the reports into evidence. When cross-examining the social worker, the attorney asked whether she knew how much experience the psychologist had, and the social worker said she did not know. Joseph's attorney made no objection to the report at this juncture. When arguing the case after the evidence was in, the attorney urged, "I would submit [SSA] has not met its burden. I know the court articulated that it believes to become a member of [an expert] panel, a psychologist has to ascertain [sic] certain standards, but I am not aware of that evidence being before the court now. [¶] ... [¶][M]y position is simply that the Family Law Code 7827(C) [sic] requires that the psychologist have five years' [sic] postgraduate experience in treating and diagnosing mental or emotional disorders, and ... there is no evidence of that before the court so under the circumstances, the court is compelled to order services to [Joseph]." Although Joseph and SSA characterize these statements as an objection, we have our doubts. It reads much more like an argument that the evidence was insufficient, an argument based on the incorrect assumption SSA had the burden to prove the psychologist's qualifications as an element of its case. Even assuming it was somehow an objection to, or a motion to strike, the psychologist's report, it was insufficient. *721 Evidence Code section 353 provides in relevant part: "A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless ... [t]here appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion." "`[T]he objection must be made in such a way as to alert the trial court to the nature of the anticipated evidence and the basis on which exclusion is sought, and to afford the [party opponent] an opportunity to establish its admissibility.' [Citation.]" (People v. Hayes (1999) 21 Cal.4th 1211, 1261, 91 Cal.Rptr.2d 211, 989 P.2d 645.) Joseph's "objection" failed the requirements of Evidence Code section 353 on two counts: It was untimely and did not adequately alert the court Joseph sought to exclude the psychologist's report. As to the first point, an objection could have been lodged when the psychologist's report was admitted into evidence. Joseph's attorney did not say anything at the time and did not comment on the matter until all of the evidence was in. At that point, SSA was effectively precluded from presenting evidence that the psychologist had the requisite qualifications. (See Pineda v. Los Angeles Turf Club, Inc. (1980) 112 Cal.App.3d 53, 61, 169 Cal.Rptr. 66 [point forfeited on appeal where party objected long after witness testified; earlier objection would have allowed problem to be easily corrected].) At the very least, counsel should have made a motion to strike the report when it became clear the social worker did not know whether the psychologist was qualified. (See People v. Szeto (1981) 29 Cal.3d 20, 32, 171 Cal.Rptr. 652, 623 P.2d 213 [motion to strike should have been raised when problem with testimony was revealed on cross-examination].) Beyond untimeliness, the objection—if it was that—lacked clarity and specificity. Joseph's attorney conveyed his belief evidence of the psychologist's qualifications was needed, but he gave no clue he wanted the evaluation excluded. Under these circumstances, SSA had no opportunity to evaluate the potential impact of an objection regarding the psychologist's qualifications on the evidence it had presented. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1120-1121, 36 Cal.Rptr.2d 235, 885 P.2d 1 [later generalized objection was insufficient to preserve claim of error regarding earlier specific evidence].) Joseph argues his due process rights were violated because he had "no notice the case would take such a departure from the `specific directions' of [Family Code section 7827]." He cites no authority, and we are aware of none, for the proposition his failure to appreciate the need to object constitutes a lack of adequate notice. Joseph contends the trial court improperly took judicial notice of its list of qualified experts to find the necessary proof had been made. We do not read the court's brief comments about its experts list to be a taking of judicial notice. Even if it were, however, it would be irrelevant because we have concluded proof of the qualifications was unnecessary in the absence of an objection. The trial court properly considered the psychologist's report when it denied reunification services.[4] *722II-IV[**] The jurisdiction and disposition orders are affirmed.[5] WE CONCUR: SILLS, P.J., and BEDSWORTH, J. NOTES [*] Under California Rules of Court, rules 976(b) and 976.1, only the factual and procedural background, part I of the discussion, and the disposition are certified for publication. [1] In a related writ proceeding (Joe B. v. Superior Court (2002) 99 Cal.App.4th 23, 120 Cal. Rptr.2d 722), Joseph's attorney informed us Joseph's true first name is Joe. At the attorney's request, we amended the writ petition to reflect the true name. We refer to him in this opinion as "Joseph'' because that is the name used in the pleadings in the juvenile court. [2] Joseph was released from jail in late June but was rearrested in early August when he failed to appear in court. He was hospitalized immediately when he was again released from jail in late August. [3] All further statutory references are to the Welfare and Institutions Code unless otherwise noted. [4] Because we find the challenge to the psychologist's qualifications was forfeited, we deny SSA's request for us to take evidence on appeal. [**] See footnote *, ante. [5] In a footnote, Joseph argues he received inadequate notice SSA would seek to deny him reunification services under section 361.5. We are not fond of footnote arguments, as they make us unsure whether the appellant is attempting to raise a ground on appeal or is merely making a passing comment. Out of an abundance of caution, we will assume it is the former and will address it briefly: SSA gave Joseph notice of an intent to proceed under section 361.5 in its June 27 report. It reinforced that intent at a hearing in mid-August. The hearing on reunification services did not occur for another month. Notice was adequate.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/1759202/

635 So. 2d 1125 (1994) Edna Guilfore, Wife of/and Julian GUILFORE v. D.H. HOLMES CO., LTD., et al. No. 94-C-0376. Supreme Court of Louisiana. April 4, 1994. Denied. KIMBALL and ORTIQUE, JJ., would grant the writ. DENNIS, J., not on panel.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2284674/

93 F. Supp. 2d 622 (2000) MUNICIPAL MORTGAGE & EQUITY, LLC, Plaintiff v. SOUTHFORK APARTMENTS LIMITED PARTNERSHIP, Defendant No. CIV.AMD 00-171. United States District Court, D. Maryland. April 12, 2000. *623 *624 Thomas Christopher Dame, Paul Stephen Caiola, Gallagher, Evelius & Jones, Baltimore, MD, for Plaintiff. Mark D. Gately, Miles & Stockbridge, Baltimore, Steve W. Gaskins, Patrick R. Martin, Flynn & Gaskins, L.L.P., Minneapolis, MN, for Defendants. MEMORANDUM DAVIS, District Judge. Municipal Mortgage & Equity, LLC, a Delaware limited liability company with its principal place of business in Baltimore and the successor to SCA Tax Exempt Fund Limited Partnership (hereafter "MuniMae"), has brought this diversity action against Southfork Apartments Limited Partnership ("Southfork"), a limited partnership organized under the laws of Minnesota. MuniMae seeks a declaratory judgment pursuant to 28 U.S.C. § 2201(a) establishing the priorities of certain amounts owed by Southfork upon Southfork's contemplated prepayment of principal and interest under certain loan agreements entered into by the parties in January 1988. Pending before me is Southfork's motion to dismiss for lack of personal jurisdiction, improper venue and failure to join an indispensable party. See Fed.R.Civ.P. 12(b)(2), (3) and (7). The issues have been fully briefed and no hearing is necessary. For the reasons set forth below, I am persuaded that the exercise of jurisdiction over Southfork under the circumstances here would not comport with the fundamental fairness required by the Due Process Clause of the Fourteenth Amendment. Accordingly, I will grant Southfork's motion to dismiss. I Effective on January 1, 1988, for the purpose of developing a low and moderate income multifamily housing project (the "Project"), Southfork and the City of Lakeville, Minnesota ("Lakeville"), acting through its Housing and Redevelopment Authority, entered into a loan agreement in the amount of $10,375,000 (the "Loan Agreement"). The loan was secured by a Promissory Note and Mortgage, as well as Southfork's assignment to Lakeville of the Project's rents and leases (the "Security"). To finance the loan, Lakeville issued tax-exempt, twenty-year revenue bonds (the "Bonds"), which MuniMae had agreed to purchase. MuniMae had initially chosen a party other than Southfork to develop the Project. When the financing arrangements with that party fell through, MuniMae approached Southfork. After a meeting between the parties' representatives in Minnesota, Southfork submitted an application to MuniMae to finance the Project. Upon the completion of preliminary negotiations, MuniMae issued a Commitment Letter (the "Commitment") to Southfork, dated December 9, 1987, memorializing MuniMae's willingness to purchase the Bonds issued by Lakeville to finance the Project. The Commitment was conditioned on, inter alia, the attainment by Southfork of tax increment financing from Lakeville. Southfork accepted the Commitment on December 11, 1987. MuniMae purchased the Bonds and augmented the original loan amount by $175,000, in the form of a parity working capital loan, for a total of $10,555,000 in proceeds to Southfork. The bond purchase and additional parity working capital loan were consummated as contemplated by, and contemporaneously with, the Loan Agreement through an Indenture of Trust Agreement (the "Indenture," together with the Loan Agreement, the "Loan Documents") between Lakeville and Sovran Bank/Maryland, as trustee for MuniMae (the "Trustee"). Under the *625 terms of the Indenture, Lakeville assigned substantially all of its rights and interest in the Bonds and the Security to the Trustee and the Trustee transferred the proceeds to Southfork.[1] In satisfaction of the Commitment's tax increment financing condition and concurrently with the execution of the Loan Documents, Southfork and the Housing and Redevelopment Authority of Lakeville (the "Authority") entered into an Interest Reduction Loan Agreement (the "Interest Agreement"), in which the Authority agreed to lend to Southfork, in the form of an immediate tax rebate, fifty percent of real estate levies on the Project. During the construction of the Project, which the Loan Documents envisioned to be completed in or around December 1988, Southfork periodically received, upon its written request sent from Minnesota to MuniMae in Maryland, a release of construction funds which were transmitted, upon MuniMae's approval, by the Trustee from Maryland. Following the completion of the Project's construction, Southfork continued to send periodic interest payments and bond servicing fees to the Trustee, which, in turn, transmitted them to MuniMae. Between 1988 and 1995, Southfork sent interest payments and bond servicing fees to the Trustee in Maryland. Since 1995, Southfork has sent interest payments and servicing fees to a successor Trustee in New York. In addition to sending interest payments and servicing fees to the Trustee, Southfork submits the Project's monthly leasing and operating reports, quarterly cashflow reports, annual budgets and annual financial statements to MuniMae for audit and review in Maryland. Further, representatives from MuniMae travel from Maryland to perform an annual physical inspection of the Project in Lakeville. The parties do not dispute that all face-to-face negotiations leading up to the transaction, and all subsequent face-to-face meetings, if any, occurred in Minnesota. Nor do they dispute that the transaction was negotiated by local Minnesota counsel for all parties and was ultimately consummated in Minnesota. None of Southfork's partners is a citizen of Maryland. The Project, located in Lakeville, was designed by Minnesota architects, built by Minnesota contractors, financed by municipal bonds issued and tax increment subsidization provided by Lakeville. While the Commitment designates Maryland law under its choice of law provision,[2] the Loan Documents, negotiated by local Minnesota counsel for all parties and executed approximately a month later, designate Minnesota law.[3] The Loan Agreement contains a merger clause which provides that "[t]his Agreement and the other Mortgage Loan Documents constitute the entire agreement among the parties hereto with respect to the transactions contemplated herein and therein, and supersede all prior oral or written agreements, commitments or understandings with respect to the matters provided for *626 herein and therein." Loan Agreement at § 10.17 (emphasis added). II Where, as here, a hearing is not held, in order to defeat a motion to dismiss for lack of personal jurisdiction, see Fed. R.Civ.P. 12(b)(6), the plaintiff's burden is to establish prima facie that personal jurisdiction is proper under the Maryland Long-Arm Statute and consonant with due process considerations. See Choice Hotels, Int'l, Inc. v. Madison Three, Inc., 23 F. Supp. 2d 617, 619 & n. 1 (D.Md.1998) (citing Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 60 (4th Cir.1993) and Blue Ridge Bank v. Veribanc, Inc., 755 F.2d 371, 373 (4th Cir.1985)). In considering a challenge to personal jurisdiction, "the court must construe all relevant pleading allegations in the light most favorable to the plaintiff, assume credibility, and draw the most favorable inferences for the existence of jurisdiction." Combs v. Bakker, 886 F.2d 673, 676 (4th Cir.1989). Both Maryland appellate courts and the United States Court of Appeals for the Fourth Circuit "have shown a willingness to collapse [the long-arm and constitutional] inquiries into a single analysis, since the Maryland Long-Arm Statute is to be interpreted as extending to constitutional limits." Choice Hotels, 23 F.Supp.2d at 619 (citing Maryland and Fourth Circuit personal jurisdiction precedent).[4] The Supreme Court has explained that a court may constitutionally exercise specific jurisdiction over a defendant when a cause of action arises out of the defendant's minimum contacts with the forum. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S. Ct. 1868, 80 L. Ed. 2d 404 (1984). Based on the submissions of the parties, the exercise of personal jurisdiction over Southfork in this case, if at all, must be based on specific, as opposed to general, jurisdiction. The exercise of specific personal jurisdiction here requires a prima facie showing by MuniMae that (1) Southfork purposely directed its activities toward MuniMae, a resident of Maryland, the forum state, or purposely availed itself of the privilege of conducting activities here; (2) MuniMae's cause of action arises out of or results from Southfork's Maryland-related contacts; and (3) Maryland's exercise of personal jurisdiction in the case is reasonable, i.e., is consistent with "fair play and substantial justice." See Choice Hotels, 23 F.Supp.2d at 620 (quoting Cape v. von Maur, 932 F. Supp. 124, 126 (D.Md.1996) and Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477-78, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985)). In assessing the sufficiency of Southfork's contacts with Maryland for long-arm and constitutional purposes, the "touchstone" is whether Southfork's contacts were "purposefully established" by Southfork such that it "will not be haled into a jurisdiction solely as a result of `random,' `fortuitous,' or `attenuated' contacts." Choice Hotels, 23 F.Supp.2d at 620 (citing Burger King, 471 U.S. at 474-75 (citations omitted)). "Prior negotiations and contemplated future consequences along with the terms of the contract and the parties' actual course of dealing," Burger King, 471 U.S. at 479, are the relevant evaluative factors in determining whether Southfork has purposefully established the requisite contacts in Maryland. In fleshing out the meaning of "prior negotiations and contemplated future consequences," "courts have considered various factors in the contract situation, including [where] the parties contemplated that the work would be performed, where negotiations were conducted ... [and] where payment was made .... The *627 strongest factor that seems to have emerged, however, is a determination of whether the defendant initiated the business relationship in some way." Nueva Eng'g, Inc. v. Accurate Electronics, Inc., 628 F. Supp. 953, 955 (D.Md.1986); Potomac Design, Inc. v. Eurocal Trading, Inc., 839 F. Supp. 364, 370 (D.Md.1993) (citing Nueva Eng'g). III I agree with Southfork that application of the above principles to the circumstances established in the record here fails to establish prima facie that Southfork has purposefully availed itself of the benefits and protections of Maryland law such that the exercise of jurisdiction over Southfork would be fair and reasonable in this declaratory judgment action. Accordingly, Southfork is not subject to the exercise of specific personal jurisdiction in this case. First, as to the determination of who initiated the business relationship, see Nueva Eng'g, 628 F.Supp. at 955 (citing August v. HBA Life Ins. Co., 734 F.2d 168 (4th Cir.1984) and Vishay Intertechnology, Inc. v. Delta Int'l Corp., 696 F.2d 1062 (4th Cir.1982)); Potomac Design, 839 F.Supp. at 370, the submissions of the parties establish unmistakably that MuniMae courted Southfork. MuniMae argues that Southfork initiated the business relationship between the parties when Southfork submitted an application to MuniMae to finance the Project. Contrary to MuniMae's assertion, however, the two affidavits by Thomas H. Healy, chairman of Southfork's general partner, establish that the relationship was initiated when a representative of MuniMae traveled to Minnesota to secure Southfork as the developer of the Project after arrangements with the first developer had fallen through. MuniMae's affidavit, provided by its Senior Vice President, Earl W. Cole, III, in asserting that "Southfork's application for financing was reviewed and approved in Baltimore" is obfuscatory at best on this issue. It does not, in any event, undermine the conclusion that MuniMae, rather than Southfork, initiated the transaction. Second, as to the "prior negotiations" between the parties, Burger King, 471 U.S. at 479, 105 S. Ct. 2174; Nueva Eng'g, 628 F.Supp. at 955, it is undisputed that all face-to-face negotiations between the parties occurred in Minnesota by local Minnesota counsel for all parties. The Loan Documents, moreover, were executed in Minnesota. Third, as to where the parties contemplated performance was to occur, Nueva Eng'g, 628 F.Supp. at 955; Potomac Design, 839 F.Supp. at 370, the submissions of the parties establish that the Project was designed by an architect in Minnesota, constructed by local Minnesota contractors, managed by Southfork, a Minnesota limited partnership, and financed in part and regulated by Lakeville, a Minnesota municipality. MuniMae attempts to cast this transaction purely in terms of a bond purchase arrangement. Manifestly, this strained view is divorced from the inherent nature of the parties' undertaking, which was, in essence, a venture to finance and construct a housing project in Minnesota in cooperation with Southfork, a private developer, and Lakeville, a Minnesota municipality. Fourth, as to the parties' course of dealing, the facts indicate that Southfork did not avail itself of the benefits and protections of Maryland law. MuniMae seizes upon Burger King and, among other cases, my relatively recent opinion in Choice Hotels Int'l to highlight the parallels between Southfork and the franchisees who were ultimately found subject to personal jurisdiction in those cases. Like those franchisees, MuniMae argues, Southfork entered into a "carefully structured 20-year relationship that envisioned continuing and widereaching contacts," Burger King, 471 U.S. at 480, 105 S. Ct. 2174, with MuniMae in Maryland *628 and, consequently, a relationship by which Southfork necessarily availed itself to the benefits and protections of Maryland law. In Burger King and Choice Hotels, the franchisees "purposefully availed [themselves] of the benefits of [the forum's] law by entering into ... significant long-term commercial franchise agreement[s] from which substantial benefits would accrue" to them in their respective states from a citizen of the forum state. Choice Hotels, 23 F.Supp.2d at 620; Burger King, 471 U.S. at 478-82, 105 S. Ct. 2174. The franchise agreements in those cases provided for the use of "trademarks and service marks," the acquisition of a "variety of proprietary information concerning standards, specifications, procedures and methods for operating," Burger King, 471 U.S. at 465, 105 S. Ct. 2174, the receipt of market research and inventory-control guidance, and allowed the franchisees to "tap into ... established national reputation[s] and to benefit from proven procedures ... enabl[ing the franchisees] to go into ... business with significantly lowered barriers to entry." Id.; Choice Hotels, 23 F.Supp.2d at 620 (drawing similarities between franchise agreement at issue with the franchise agreement in Burger King). In return for these benefits, the franchisees "commit[ted] themselves to payment of monthly royalties, advertising and sales promotion fees, and rent computed in part from monthly gross sales." Burger King, 471 U.S. at 465, 105 S. Ct. 2174; Choice Hotels, 23 F.Supp.2d at 619 (discussing franchise fees). Further, and importantly, the franchisees agreed to submit to "exacting regulation of virtually every conceivable aspect of their operations," which included the imposition of "standards and ... rigid regulation out of conviction that `[u]niformity of service, appearance, and quality of product is essential to the preservation' of the franchisor's image and the benefits accruing therefrom to both Franchisee and Franchisor." Burger King, 471 U.S. at 465, 105 S. Ct. 2174. The Loan Documents, by contrast, reveal that the relationship between the parties was not as "carefully structured ... and widereaching," id. at 480, 105 S. Ct. 2174, as MuniMae suggests. Under the Loan Documents, Southfork was only required during the construction of the Project to request construction funds from the Trustee, which was at the time located in Maryland. Following completion of the Project's construction through 1995, Southfork sent interest payments and bond servicing fees to the Trustee in Maryland. After 1995, Southfork sent payments to a successor Trustee in New York. In addition, the Loan Documents required Southfork to send the Project's progress and operating reports to MuniMae in Maryland. The dispatches between Southfork and MuniMae do not rise to the level of "exacting regulations of every conceivable aspect of ... operations," characteristic of the "wide-reaching" relationships in the franchise context that was so critical to the exercise of personal jurisdiction in Burger King and Choice Hotels.[5] *629 Finally, as to "contemplated future consequences," Burger King, 471 U.S. at 479, 105 S. Ct. 2174; Nueva Eng'g, 628 F.Supp. at 955; Potomac Design, 839 F.Supp. at 370, it is clear that the parties' choice of Minnesota law compels the conclusion that the exercise of personal jurisdiction is not constitutionally proper in this case. The Supreme Court instructs that a choice-of-law provision should not be ignored in considering whether a defendant has purposefully invoked the benefits and protections of a State's laws for jurisdictional purposes. See Burger King, 471 U.S. at 482, 105 S. Ct. 2174. In Burger King, the Court affirmed the understanding that a defendant "purposefully avail[s] himself of the benefits and protections of [the forum state's] laws by entering into contracts expressly providing that those laws would govern ... disputes." Id. Here, although the Commitment issued by MuniMae designated Maryland law, the superseding Loan Documents, see Loan Agreement at § 10.17 ("This Agreement and the other Mortgage Loan Documents constitute the entire agreement ... and supersede all prior oral or written agreements, commitments or understandings with respect to the matters provided for herein and therein.")(emphasis added), make unmistakable the parties' bargainedfor understanding that Minnesota law would govern the resolution of matters pertaining to this transaction. When considered with the factors discussed above, i.e., that Southfork did not initiate the business relationship; that negotiations between the parties and the execution of the Loan Documents occurred in Minnesota; that performance under the Loan Documents to a substantial degree took place in Minnesota; and, that Southfork's relationship with the forum is attenuated, at best — the selection by the parties, and Southfork in particular, of Minnesota law over Maryland law, when the choice of Maryland law was clearly an available option, weighs heavily in favor of the conclusion that Southfork did not intend to avail itself of the benefits and protections of Maryland law.[6] The foregoing examination of "[p]rior negotiations and contemplated future consequences *630 along with the terms of the contract and the parties' actual course of dealing," Burger King, 471 U.S. at 479, 105 S. Ct. 2174; Nueva Eng'g, 628 F.Supp. at 955; Potomac Design, 839 F.Supp. at 370, reveals that Southfork did not purposefully avail itself of the benefits and protections of Maryland law and that the exercise of personal jurisdiction over Southfork would not be reasonable. IV For the reasons set forth above, I will grant Southfork's motion to dismiss for lack of personal jurisdiction. A separate order follows. NOTES [1] Lakeville retained the right to payment for extraordinary services incurred in enforcement Southfork's obligations under the Loan Documents, see Loan Agreement at § 5.03, and the right to indemnification for certain conflicts arising out of the transaction, see id. at § 7.01. [2] See Commitment at § 24 ("Choice of Law — The rights and obligations of the parties with respect to this Commitment shall be determined in accordance with the State of Maryland"). [3] See Loan Agreement at § 10.10 ("Applicable Law. The laws of the State shall govern the construction of this Agreement"); Exhibit C to Loan Agreement at C-2 ("`State' — The State of Minnesota"); Indenture at § 14.05 ("Governing Law. The substantive laws of the State shall govern this Indenture and all Bonds issued hereunder."); id. at § 14.08 ("Intention as to Seal and Contract. It is intended that this Indenture, when signed on behalf of [Lakeville] and [Sovran] ... shall constitute a contractual obligation under seal under the laws of the State with force and effect as an agreement ...."); Exhibit B to Indenture at B-2 ("`State'— The State of Minnesota"). [4] The provision of Maryland's Long-Arm statute relevant here provides: "In general. — A court may exercise personal jurisdiction over a person, who directly or by an agent ... [t]ransacts any business or performs any character of work or service in the State ...." Md.Code Ann., Cts. & Jud. Proc. § 6-103(b)(1). [5] The facts and circumstances in this case are more analogous to those in Talegen Corp. v. Signet Leasing and Fin. Corp., 104 Md.App. 663, 657 A.2d 406, cert. denied, 340 Md. 215, 665 A.2d 1058 (1995). In that case, the nonresident defendant challenging personal jurisdiction in Maryland had entered into a contract with a third party. Subsequently, pursuant to the terms of the contract and with the consent of the defendant, the third party assigned the contract to the plaintiff, a resident of Maryland. Pursuant to the assigned contract, the defendant sent payments, notices and information to the plaintiff in Maryland. Reversing the trial court's determination that personal jurisdiction over the non-resident defendant was proper, the Court of Special Appeals, drawing on Hanson v. Denckla, 357 U.S. 235, 252, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958), held that "the unilateral act of a third party lessor in assigning a lease agreement, which action necessarily requires the lessee to mail payments and send certain notices to the assignee, does not create the necessary `minimum contacts' between the lessee and the State in which the assignee is located." 104 Md.App. at 674, 657 A.2d at 412. Here, the gravamen of Southfork's contractual undertakings centered on its relationship with Lakeville, the "lender" under the Loan Agreement. Lakeville, like the third party in Talegen, essentially assigned, through the Indenture, all of the Security under the Loan Agreement to the Trustee, a Maryland resident. Thus, although the analogy is not exact because Southfork executed the Commitment, Southfork's situation here is not unlike that of the nonresident defendant in Talegen, who became associated with the resident plaintiff through a "unilateral act" (of assignment) by the original party with whom it contracted, Lakeville. See also The Harry and Jeanette Weinberg Foundation Inc. v. ANB Investment Management and Trust Co., 966 F. Supp. 389 n. 3 (D.Md.1997) (distinguishing Burger King on "several grounds," including the fact that "national franchise agreements, such as the one involved in Burger King, present unique policy issues involving protection of trademarks and maintenance of uniform standards."). MuniMae's reliance on cases such as Mininberg v. Kresch, 863 F. Supp. 261 (D.Md.1994), in which courts have reasoned that a mere agreement to send payments due on a promissory note into the forum is sufficient to support a conclusion that a defendant engaged in "purposeful availment," is not persuasive as I remain unconvinced of the rule's constitutionality. [6] Just as a choice of law provision in favor of the forum state, when combined with other factors, "reinforce[s] ... deliberate affiliation with the forum State and the reasonable foreseeability of possible litigation there," Burger King, 471 U.S. at 482, 105 S. Ct. 2174, a choice of law provision which opts away from the forum state, when combined with other factors disfavoring the exercise of personal jurisdiction, raises the negative implication that personal jurisdiction in the forum state was not contemplated. Cf. Ellicott Mach. Corp. v. John Holland Party Ltd., 995 F.2d 474, 478 (4th Cir.1993) (finding against the exercise of personal jurisdiction because, inter alia, unlike the Burger King contract, "the contract ... contain[ed] no choice-of-law provision" and contained a provision indicating a preference for non-forum law); Allegiant Physicians Services, Inc. v. Sturdy Mem. Hosp., 926 F. Supp. 1106, 1116 (N.D.Ga.1996) (citing Burger King and concluding that "the parties' decision to invoke [non-forum] law, and not [forum] law, weighs against [defendant's] contacts with [the forum].").

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2284716/

93 F. Supp. 2d 1140 (2000) The HOLMES GROUP, INC., Plaintiff, v. VORNADO AIR CIRCULATION SYSTEMS, INC., Defendant. No. 99-1499-WEB. United States District Court, D. Kansas. March 8, 2000. Jay F. Fowler, Jim H. Goering, Timothy B. Mustaine, Foulston & Siefkin L.L.P., Wichita, KS, James W. Dabney, Pennie & Edmonds LLP, New York City, for Plaintiff. Kent A. Meyerhoff, Fleeson, Gooing, Coulson & Kitch, L.L.C., Edward L. Brown, Jr., Wichita, KS, Jeffrey D. Karceski, Lisa A. Dunner, Peter W. Gowdey, Lynn E. Eccleston, Samuel P. Burkholder, Pillsbury, Madison & Sutro, L.L.P., Washington, DC, for Defendant. Memorandum and Order WESLEY E. BROWN, Senior District Judge. Plaintiff Holmes Group Inc. filed this action seeking, among other things, a declaratory judgment holding that Holmes' *1141 sale of its fan and heater products does not infringe any valid or enforceable "trade dress" claimed by defendant Vornado under 15 U.S.C. §§ 1501 et seq. The matter is now before the court on Holmes' motion for summary judgment on its first cause of action seeking the aforementioned relief. Holmes argues it is entitled to summary judgment by virtue of the collateral estoppel effect of previous litigation involving defendant Vornado and another fan manufacturer. The court heard preliminary arguments from the parties relating to this issue at a hearing on January 3, 2000, and concludes that further argument would not assist in deciding the questions presented. I. Facts. 1. Holmes is a manufacturer of branded consumer household products. Holmes manufactures and sells a wide variety of household fan and heater products in U.S. interstate commerce, including the Holmes® Model HAOF-90 BlizzardTM Oscillating Power Table Fan; the Holmes® Model HFH 298 Power AccutempTM Bedroom Heater; and the Holmes® Model HFH 299 Power Heater. 2. Defendant Vornado is a competitor of Holmes in the U.S. fan and heater business. Vornado sells household fan and heater products, some of which incorporate arcuate vane structures exemplified in Exhibits 11 and 12 of the declaration of James W. Dabney. 3. On or about November 26, 1999, Vornado lodged a complaint with an administrative agency in Washington, D.C., known as the International Trade Commission (the "ITC"). In its ITC complaint, Vornado claimed to be the owner of a "trade dress" comprised of a "spiral grill design" embodied in certain Vornado fan and heater products, and asserted that Holmes' sale of the Holmes products essentially infringed that trade dress in alleged violation of 15 U.S.C. § 1125(a). 4. In its answer in this action dated December 30, 1999, defendant interposed an affirmative defense which substantially repeated the trade dress allegations contained in the ITC complaint. Defendant's answer in this action alleges that the spiral grill design embodied in certain Vornado fan and heater products constitutes nonfunctional trade dress and that Holmes' sale of the Holmes Products infringes that trade dress in violation of 15 U.S.C. § 1125(a). 5. The trade dress which defendant has accused Holmes of infringing in this action and in the ITC complaint, exemplified by the grill structure incorporated in the Vornado Model 550G "compact" fan depicted in Exhibit 5 to defendant's ITC complaint, is the exact same mechanical configuration which the Tenth Circuit has explicitly held "cannot be protected as trade dress" in Vornado I. 6. On November 6, 1992, Vornado commenced an action in this court entitled Vornado Air Circulation Systems, Inc. v. Duracraft Corp., Civ. Action No. 92-1453-WEB (D.Kan.). Vornado's complaint asserted that the aforementioned "spiral grill design", which Vornado then referred to as the "Patented AirTensityTM Grill", constituted non-functional trade dress subject to regulation and injunction under 15 U.S.C. § 1125(a). 7. On July 5, 1995, the Tenth Circuit rendered a judgment reported at 58 F.3d 1498 which rejected defendant's trade dress claim and concluded: Vornado included the arcuate grill van structure as an element of its patent claims and described the configuration as providing an "optimum air flow." Then, after the first patent issued and Vornado subsequently found evidence that other grill structures worked as well or better than the spiral grill, Vornado did not repudiate or disclaim in any way the grill element of its patent. Instead, Vornado sought and received a reissued patent that expanded its claims with respect to the grill. Even if we discount entirely Vornado's extensive advertising campaign emphasizing *1142 the importance of the "AirTensity Grill," this patent history on its face obviates any need for a remand on the question of inventive significance. We simply take Vornado at its word. Because the "Patented AirTensity Grill" is a significant inventive element of Vornado's patented fans, it cannot be protected as trade dress. The Tenth Circuit opinion reversed this court's initial ruling in favor of Vornado. See Vornado Air Circulation Systems, Inc. v. Duracraft Corp., 1994 WL 1064319 (D.Kan., Mar.4, 1994). 8. On January 8, 1996, the Supreme Court of the United States denied a petition by Vornado for review of the Tenth Circuit's Vornado I decision. This court subsequently entered final judgment dismissing with prejudice, on the merits, the trade dress claim which Vornado had asserted in Vornado I, and awarded costs against Vornado. 9. In Vornado I, the Tenth Circuit specifically considered and decided the issue of whether the arcuate or "spiral" grill configuration embodied in Vornado fan and heater products was eligible for protection as trade dress under 15 U.S.C. § 1125(a). By its complaint in the ITC and its affirmative defense in this action, defendant seeks to re-litigate the very same issue, which was actually, necessarily, and finally decided adversely to defendant in Vornado I. II. Summary Judgment Standards. The standards and procedures for summary judgment are well established and will not be fully repeated here. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). In essence, summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Id. III. Arguments. Holmes argues that under the doctrine of collateral estoppel the judgment in Vornado I bars Vornado from asserting in this action that the configuration of its "AirTensity Grill" qualifies for trade dress protection under 15 U.S.C. § 1125(a). As such, Holmes contends it is entitled to summary judgment on its claim for a declaratory judgment of non-infringement. In response, Vornado contends that collateral estoppel should not be applied because there has been a fundamental change in the controlling law, and because application of the doctrine in this case would be unfair to Vornado. IV. Discussion. The federal courts have traditionally adhered to the doctrine of collateral estoppel. Allen v. McCurry, 449 U.S. 90, 94, 101 S. Ct. 411, 66 L. Ed. 2d 308 (1980). Under that doctrine, "once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case." Id. The doctrine furthers several important interests: it relieves parties of the cost and vexation of multiple lawsuits, it conserves judicial resources, and, by preventing inconsistent decisions, it encourages reliance on adjudication. Id. The Supreme Court has recently reaffirmed the benefits of collateral estoppel and has applied it in contexts not recognized at common law. For example, the Court has eliminated the requirement of "mutuality" of parties and has permitted a litigant not a party to a federal case to assert the doctrine "offensively" in a new federal suit against the party who lost on the issue in the first case. Id. at 94-95, 101 S. Ct. 411. The elements of collateral estoppel are clearly satisfied in this case.[1] The only *1143 real question is whether the doctrine should not be applied because of a change in the law since Vornado I. It is well established that an intervening change in the law can be a sufficient basis for declining to apply collateral estoppel. See e.g., Montana v. United States, 440 U.S. 147, 155, 99 S. Ct. 970, 59 L. Ed. 2d 210 (1979); Spradling v. City of Tulsa, 198 F.3d 1219, 1223 (10th Cir.2000); Bingaman v. Dept. Of Treasury, 127 F.3d 1431, 1437 (Fed.Cir. 1997) ("In a number of cases, this court and others have held that a significant change in the `legal atmosphere' — whether in the form of new legislation, a new court decision, or even a new administrative ruling — can justify a later court's refusal to give collateral estoppel effect to an earlier decision."). Vornado contends this "change in the law" exception is met because in Midwest Industries, Inc. v. Karavan Trailers, Inc., 175 F.3d 1356 (Fed.Cir.1999), the Federal Circuit expressly rejected the Tenth Circuit's Vornado I holding, ruling instead that a claim for trade dress protection was not barred by the fact that a product configuration had been claimed as a significant inventive element of a patent. Id. at 1364. As part of its ruling in that case, the Federal Circuit abandoned its prior practice of applying regional circuit law on questions involving the relationship between patent law and other federal law rights, and said that "[h]enceforth, will apply our own law to such questions." Id. at 1359. This alteration is potentially significant in the instant case, because Vornado has asserted a counterclaim alleging infringement of Vornado's patent. Under 28 U.S.C. § 1295(a)(1), the Federal Circuit has exclusive jurisdiction over an appeal from a final judgment of a district court if the district court's jurisdiction is based in whole or in part on a patent claim. Thus, it is possible (although not entirely certain) that any appeal of this court's judgment will be to the Federal Circuit[2], and that the Federal Circuit will apply its own law to the trade dress claim — a law that is now clearly at odds with the Tenth Circuit law underlying the judgment in Vornado I. By contrast, if the case is found not to involve a claim under the patent laws, an appeal would go to the Tenth Circuit, which would presumably apply the same rule expressed in Vornado I to bar Vornado's claim of trade dress. See 15 U.S.C. § 1121(a). The court concludes that this clear conflict in the substantive law of the circuits does not require, nor does it warrant, a refusal to apply the law of collateral estoppel in this action. In the prior case, Vornado had a full and fair opportunity to litigate its trade dress claim against another manufacturer, and that claim was ultimately decided against Vornado by the Tenth Circuit. Vornado petitioned the Supreme Court to review the ruling, but the Court declined to do so, leaving intact this court's resulting judgment that Vornado was barred from claiming trade dress rights in its grill design. The Tenth Circuit law upon which that judgment was based has not changed since Vornado I, and the court sees nothing to substantiate Vornado's hopeful speculation that if the Tenth Circuit were to revisit the issue "it would choose a different path than it articulated in Vornado I." Def. Mem. at 5. All of the procedural machinations and intercircuit intrigue implicated by this action *1144 cannot obscure a central truth: Vornado I constitutes a final and valid judgment of this court and the law upon which that judgment was based remains unchanged. Under such circumstances, this court will not refuse to give effect to its own prior judgment. Aside from an asserted change in the law, Vornado also points out that collateral estoppel should not be applied where it would result in unfairness to a defendant. Citing Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 331, 99 S. Ct. 645, 58 L. Ed. 2d 552 (1979). But the unfair circumstances identified by the Court in Parklane Hosiery — lack of incentive to prosecute the first action, inconsistency with other judgments in favor of the defendant, and lack of procedural opportunities in the first action — are clearly not present in this case. Cf. at 330. Vornado nevertheless argues unfairness would result because manufacturers against whom Vornado competes may be able to obtain trade dress protection on features of a type that Vornado is barred from protecting by Vornado I. Def. Mem. at 4. The Restatement (Second) of Judgments suggests that it might be inappropriate to apply collateral estoppel where its application "would impose on one of the parties a significant disadvantage, or confer on him a significant benefit, with respect to his competitors," or where it "would result in a manifestly inequitable administration of the laws." Restatement (Second) of Judgments, § 28, comment c. Notwithstanding the fact that some inequality could emerge from the difference in law between the circuits, the court cannot agree that the circumstances of this case warrant re-litigation of the legal issue determined in Vornado I.[3] As Holmes points out, conflict in the law between circuits is not unheard of, and the fact that one circuit disagrees with another does not necessarily mean the former would decline to give collateral estoppel effect to a judgment arising in the latter. But that is a matter for the Federal Circuit (or the Tenth Circuit) to determine. Cf. Colby v. J.C. Penney Co., 811 F.2d 1119, 1124 (7th Cir.1987) ("the responsibility for maintaining the law's uniformity is a responsibility of appellate rather than trial judges"). Likewise, the ITC must determine in its own right whether the doctrine of collateral estoppel should apply to bar any of the claims now pending before it. Insofar as this action is concerned, however, this court previously entered a valid and final judgment in Vornado I and the Tenth Circuit law upon which that decision was based has not been changed. Under principles of collateral estoppel, the ruling in Vornado I bars Vornado from re-litigating the same issue in this action. Accordingly, Holmes is entitled as a matter of law to judgment declaring that it has not infringed *1145 Vornado's asserted trade dress rights. V. Vornado's Motion to Stay. The court has considered defendant Vornado's Motion to Stay (Doc. 53) pending a ruling by the Federal Circuit on Vornado's appeal of the preliminary injunction in this case, but the court concludes the motion should be denied. Given the straightforward question presented by the motion for summary judgment, the court does not believe judicial economy would be furthered by holding the motion in abeyance. VI. Conclusion. Defendant Vornado's Motion to Stay (Doc. 53) is hereby DENIED. Plaintiff Holmes' Motion for Summary Judgment on its first cause of action (Doc. 42) is hereby GRANTED. NOTES [1] The trade dress now claimed by Vornado is identical to that which it asserted in Vornado I; Vornado I was decided on the merits; Vornado was a party to the prior action; and Vornado had a full and fair opportunity to litigate the issue in the prior action. See Matosantos Commercial Corp. v. Applebee's Intern., Inc., 64 F. Supp. 2d 1105, 1108 (D.Kan. 1999) (listing elements of collateral estoppel). [2] Holmes contends it is doubtful the Federal Circuit would have jurisdiction over an appeal in this case, citing the "well-pleaded complaint rule" of Christianson v. Colt Industries, 486 U.S. 800, 108 S. Ct. 2166, 100 L. Ed. 2d 811 (1988), and pointing out that Holmes' complaint asserts no patent claim. This court does not need to stray into this procedural thicket to decide the issue before it. Regardless of which Court of Appeals would have jurisdiction, the court determines that the principles of collateral estoppel should be applied in this case. [3] As the Restatement points out, two concepts of equality are at odds with each other in this type of situation. One concept is that the outcomes of similar legal disputes between the same parties at different points in time should not be disparate. The other is that the outcomes of similar legal disputes being contemporaneously determined between different parties should be resolved according to the same legal standards. See Restatement (Second) of Judgments, § 28, comment c. In such a situation, "the choice must be made in terms of the importance of stability in the legal relationships between the immediate parties, the actual likelihood that there are similarly situated persons who are subject to application of the rule in question, and the consequences to the latter if they are subject to different legal treatment." Id. Although the foregoing standards provide fodder for both sides of the collateral estoppel argument in this case, the court finds in them no compelling reason for declining to apply the same rule that was previously applied to the same issue in Vornado I. The court notes that since Vornado I, Holmes and other companies have manufactured various products in reliance upon the rule expressed in that case. See Marino Decl. ¶ 22. Failure to apply collateral estoppel here would likely create a baffling state of legal affairs insofar as manufacture of these products is concerned. Cf. American Medical Intern., Inc. v. Secretary of Health, Education & Welfare, 677 F.2d 118, 123 (the surest way to obtain decisional uniformity is to give estoppel effect to the earliest judgment).

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/1759213/

407 S.W.2d 873 (1966) Dorothy GADDIS et vir, Appellants, v. William C. SMITH et al., Appellees. No. 7646. Court of Civil Appeals of Texas, Amarillo. October 10, 1966. Rehearing Denied November 14, 1966. *874 Huff & Bowers, Lubbock, Robert W. Gauss, Lubbock, of counsel, for appellants. Crenshaw, Dupree & Milam, Evans, Pharr, Trout & Jones, Lubbock, Max C. Addison and David Hughes, Lubbock, of counsel, for appellees. DENTON, Chief Justice. This is a malpractice case. Suit was brought by Dorothy Gaddis and her husband against Dr. William C. Smith and Dr. Stuart Nemir, Jr. for damages for personal injuries suffered by the plaintiff as a result of a surgical operation performed by the defendants. Plaintiffs alleged the defendants performed a Caesarean Section upon Mrs. Gaddis on January 7, 1959 and that during such operation the defendants negligently left a surgical sponge inside her body. This suit was filed February 21, 1964. Both defendants invoked the two-year statute of limitations by their answers and by motions for summary judgment. The trial court granted the motions for summary judgment. The plaintiffs' pleadings alleged the defendants performed an operation upon Mrs. Gaddis on January 7, 1959. She experienced an apparent uneventful recovery and had no complaints until she was examined by another doctor in 1963 when she complained of backaches. Shortly thereafter, on October 10, 1963, the doctor discovered and removed a surgical sponge when he performed another operation. The issues here, namely, that the pleadings, motions and depositions raised a material issue of fact; and the application of the two-year statute of limitations deprived plaintiffs of a property right without due process of law, have been settled by the Supreme Court. Stewart v. Janes, Tex. Civ.App., 393 S.W.2d 428 (Writ.Ref.) is squarely in point here and involved substantially the identical fact situation and questions of law. The court held the trial court properly granted a summary judgment. A Writ of Certiorari was denied in that case by the United States Supreme Court on March 28, 1966. The Stewart case followed Carrell v. Denton (Tex.Comm. App.), 138 Tex. 145, 157 S.W.2d 878 (Opinion adopted), which held that where suit is based on negligence in failing to remove a gauze sponge from the body of the plaintiff the cause of action accrued at that time, notwithstanding the plaintiff's ignorance of such fact until some four years later. There were no allegations in the petition sufficient to toll limitations. Wright v. Bida (Tex.Civ.App.) 359 S.W.2d 661. The judgment of the trial court is affirmed.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2284841/

93 F. Supp. 2d 481 (2000) Andre AGAPOV, Plaintiff, v. Tamara NEGODAEVA, Board of Managers of 188 East 70th Street Condominium and John Does 1 through 5, representing parties whose identities are currently unknown to plaintiff and may be tenants or occupants of the premises involved in this action, Defendants. No. 99 Civ. 5183(MBM). United States District Court, S.D. New York. April 19, 2000. *482 Roger J. Bernstein, New York City, for plaintiff. Val Mandel, New York City, for defendant Tamara Negodaeva. Nancy S. Pitkofsky, Wolf Haldenstein Adler Freeman & Herz LLP, New York City, for defendant Board of Managers of 188 East 70th Street Condominium. OPINION and ORDER MUKASEY, District Judge. On June 17, 1999, Andre Agapov, an alien and lawful permanent resident of the United States, domiciled in New York, initiated this conversion action in Supreme Court, New York County. Agapov named as defendants Tamara Negodaeva, an alien living in Moscow; the Board of Managers of 188 East 70th Street Condominium, the duly elected governing body of a condominium located in New York ("the Board"); and five John Does, each of whom may be tenants or occupants of the condominium. On July 16, 1999, Negodaeva filed a notice of removal pursuant to 28 U.S.C. § 1441 (1994). Agapov now moves to remand this action to state court, and for attorney's fees. For the reasons stated below, Agapov's motion is granted as to his request for a remand, and is denied as to his request for attorney's fees. I. When a defendant seeks to remove an action from state court to federal court, she bears the burden of proving that federal subject matter jurisdiction exists. See Gilman v. BHC Secs., Inc., 104 F.3d 1418, 1421 (2d Cir.1997). Negodaeva argues that this court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1332 (1994). (Notice of Removal ¶ 6) Pursuant to § 1332, the federal district courts have subject matter jurisdiction over civil actions in which the amount in controversy exceeds $75,000 and the action is between ... (2) citizens of a State and citizens or subjects of a foreign state; [or] (3) citizens of different States and in which citizens or subjects of a foreign state are additional parties ... Under the 1988 amendments to § 1332, "an alien admitted to the United States for permanent residence shall be deemed a citizen of the State in which such alien is domiciled." ("the deeming provision") Negodaeva argues that § 1332(a)(2) jurisdiction exists because she is a "citizen ... of a foreign state," and Agapov, as an alien who is a lawful permanent resident of New York, must be "deemed a citizen of [New York]." (Def. Mem. Opp'n at 1) In response, Agapov argues that the deeming provision may not be applied to this case because to do so would violate the Constitution and frustrate Congress's intent in passing the 1988 amendments. However, Agapov's constitutional and statutory arguments need not be reached here, because regardless of *483 whether the deeming provision applies to this case, § 1332 jurisdiction may not be exercised. If the deeming provision does not apply, as Agapov contends, this action is one in which an alien plaintiff (Agapov) is suing an alien defendant (Negodaeva) and a United States defendant (the Board).[1] Section 1332 does not confer jurisdiction over such an action. See, e.g., 15 James Wm. Moore et al., Moore's Federal Practice § 102.77 (3d ed.1999) (noting that when "an alien plaintiff sues an alien and a citizen of a state, there is no diversity jurisdiction") (collecting cases). If the deeming provision does apply, as Negodaeva argues, then a New York plaintiff (Agapov) is suing an alien defendant (Negodaeva) and a United States defendant (the Board). In this situation, if the Board is a New York citizen, the complete diversity required by Strawbridge v. Curtis, 7 U.S. (3 Cranch) 267, 2 L. Ed. 435 (1806), is lacking because Agapov and the Board are both New York citizens. Accordingly, § 1332 jurisdiction may be exercised only if the Board is not a New York citizen. As the party asserting federal jurisdiction, Negodaeva has the burden of so proving, and she has not carried it. Indeed, the only relevant information in the record is that the Board is the duly elected governing body of a building located in New York. (Compl. ¶ 3; Answer ¶ 2) If the Board is unincorporated, that it manages a New York building is not pertinent to the question of its state citizenship. See United Food & Commercial Workers Union v. CenterMark Properties Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir.1994) ("the citizenship of an unincorporated association ... is determined [for diversity purposes] by the citizenship of each of its members"). Alternatively, if the Board is incorporated, see N.Y. Real Property Law § 339-v(1)(a) (McKinney 1999) (stating that condominium management boards may incorporate), that it manages a New York building certainly does not suggest that the Board is not a New York citizen. Indeed, if anything, this fact suggests that the Board should be regarded as a New York citizen. See generally Moore et al., supra, at § 102.54[4] (noting that "a corporation that generally fashions its business policy and makes its management decisions in a single state is deemed to have its principal place of business in that state" and is thus a citizen of that state for diversity purposes) (collecting Second Circuit cases). In sum, assuming that the deeming provision applies to this case, § 1332 jurisdiction may be exercised only if the Board is not a New York citizen, and Negodaeva has not carried her burden of proving that. Therefore, the court lacks subject matter jurisdiction over this action.[2] In light of this conclusion, two matters warrant brief mention. First, the Board argues that personal jurisdiction may not be exercised over it because it was not properly served in the state action. (Answer at 2) However, because I have concluded that this court may not exercise subject matter jurisdiction over this case, I need not reach this argument. See Ruhrgas A.G. v. Marathon Oil Co., 526 U.S. 574, 584-85, 119 S. Ct. 1563, 143 L. Ed. 2d 760 (1999) (holding that consideration of jurisdictional issues need not be "sequenc[ed]," and that a federal court may therefore "choose among threshold grounds for denying audience to a case"); see also Cantor Fitzgerald, L.P. v. Peaslee, 88 F.3d 152, 155 (2d Cir.1996) (noting that federal courts have discretion in choosing which jurisdictional issues to address first, but that the subject matter jurisdiction inquiry *484 "customarily" precedes the personal jurisdiction inquiry, and that when the dispostive personal jurisdiction question is based on state law, "federalism concerns may tip the scales in favor of first deciding the question of subject-matter jurisdiction") (internal quotation marks and citations omitted). Second, neither party has moved to dismiss the Board as a dispensible party pursuant to Fed.R.Civ.P. 21. Although Rule 21 permits a federal court to dismiss a party sua sponte, I decline to do so here. II. Plaintiff has moved also for attorney's fees. A federal court has discretion to award attorney's fees if a case was improperly removed from state court. See 28 U.S.C. § 1447(c) (1994). However, there is no evidence that Negodaeva acted in bad faith in seeking removal, or that her removal application was frivolous or plainly unreasonable. Therefore, an award of attorney's fees is not warranted. See, e.g., Clark v. Wey, No. 92 Civ 9179(MBM), 1993 WL 313043, *3 (S.D.N.Y.1993). * * * * * * For the reasons state above, plaintiff's motion to remand this case to state court is granted, and his request for attorney's fees is denied. SO ORDERED: NOTES [1] The citizenship of the John Doe defendants is irrelevant. See 28 U.S.C. § 1441(a)(1994) ("For purposes of removal, ... the citizenship of defendants sued under fictitious names shall be disregarded"). [2] Even if the Board is not a New York citizen, it is possible that § 1332 jurisdiction may not be exercised over this case. See Moore et al., supra, at § 102.78[3][a]. However, because there is no evidence that the Board is not a New York citizen this possibility need not be considered here.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2285166/

34 Cal.Rptr.3d 542 (2005) 133 Cal.App.4th 132 Laurence UNDERWOOD et al., Plaintiffs and Appellants, v. Kelly L. CORSINO et al., Defendants and Respondents. No. B175020. Court of Appeal, Second District, Division Four. October 6, 2005. Burlison & Luostari and Robert C. Burlison, Jr., La Canada, for Plaintiffs and Appellants. Francis A. Jones for Respondents. HASTINGS, Acting P.J. Plaintiffs and appellants Laurence and Ella Underwood appeal from a judgment entered in favor of their commercial tenant, defendant and respondent Kelly Corsino, and her subtenant, defendant and respondent Kim Conway (collectively respondents). *543 The trial court ruled in favor of respondents in connection with appellants' unlawful detainer action against respondents and also ordered abatement of rent in favor of respondents. We conclude the trial court exceeded its authority in ordering abatement of rent. Accordingly, we remand with directions to the trial court to modify the judgment. FACTS In October 2002, appellants entered into a lease with Corsino for use of commercial property as a production studio. Certain provisions of the lease allowed Corsino to do build-out improvements of the property, and appellants agreed to be responsible for installing a climate control unit, checking and repairing the roof, and repairing a hole in the back yard. The lease also required Corsino to utilize the property in accord with all municipal ordinances. In March 2003, the property was used for videotaping of a "wrap party." Certain municipal code violations were asserted in connection with the party which led to criminal charges against Laurence Underwood, Corsino and her husband. The charges were ultimately dismissed against Underwood and Corsino. On May 1, 2003, Corsino entered into an agreement to sublease the property to Conway, which was approved in writing by appellants. Appellants agreed that no rental payment for the month of July was due because they had construction work done rendering the premises unusable. On August 6, Corsino tendered a $2,300 check payable to Laurence Underwood. Underwood did not process the check. Instead, on August 11, 2003, appellants caused a three-day notice to quit to be served on Corsino. It alleged that Corsino was $4,925 in arrears for nonpayment of rent, that she violated certain municipal ordinances in connection with the "wrap party," and that she was otherwise in breach of the lease. In September 2003 appellants filed their unlawful detainer complaint against respondents. Respondents answered asserting various affirmative defenses. One asserted that appellants "frustrated the purpose of the lease agreement by preventing defendants from conducting the stated business of the lease." No affirmative relief was sought by respondents. At the court trial on December 2, 2003, Corsino testified that appellants had agreed to abate the rent for July because of construction and that she had tendered a check in the amount of $2,300 on August 6, 2003, and she admitted that she paid no rent for the period from October through December 2003. She did not believe that she should be required to pay rent through December because she and her subtenant were precluded from conducting business on the premises because of acts taken by appellants, including service of the three-day notice to quit. The trial court ruled in favor of respondents. It concluded appellants had failed to prove the alleged nonpayment of $4,925 in rent, the alleged violation of the city ordinance, and the alleged breaches of the lease. In addition, the court concluded that service of the notice to quit prevented respondents from making use of the property as a production studio and that "there will be an abatement of all of the rent from and after the date of August 11, 2003 [when the notice to quit was executed], until December 2, 2003." Judgment was entered accordingly. Appellants moved for an order vacating the judgment or, alternatively, for a new trial with respect to the issue of abatement of rent. The trial court denied appellants' motion. *544 DISCUSSION Appellants challenge only that portion of the judgment abating rental payments from August 11, 2003, through December 2, 2003. "An unlawful detainer action is a summary proceeding, the primary purpose of which is to obtain the possession of real property in the situations specified by statute. [Citations.] The statutory procedure must be strictly followed. [Citation.] The sole issue before the court is the right to possession; accordingly, a defendant is not permitted to file a cross-complaint or counterclaim and, `a defense normally permitted because it "arises out of the subject matter" of the original suit is generally excluded . . . if such defense is extrinsic to the narrow issue of possession. . . .' [Citation.]" (Vasey v. California Dance Co. (1977) 70 Cal.App.3d 742, 746-747, 139 Cal.Rptr. 72, criticized on another point in Molen v. Friedman (1998) 64 Cal.App.4th 1149, 1156, 75 Cal.Rptr.2d 651.) Frustration of purpose is a legitimate defense to an unlawful detainer action which, if established, results in the tenant's retention of the premises. (Green v. Superior Court (1974) 10 Cal.3d 616, 633, 111 Cal.Rptr. 704, 517 P.2d 1168 (Green), questioned on another point in Davis v. Superior Court (1980) 102 Cal.App.3d 164, 167-168, 162 Cal.Rptr. 167.) Green established that if the subject premises are for residential use and the landlord has breached the covenant of habitability, abatement of rent in favor of the tenant is appropriate. (Green, at p. 638, 111 Cal.Rptr. 704, 517 P.2d 1168.) The ruling in Green was codified by enactment of Code of Civil Procedure section 1174.2.[1] (Hyatt v. Tedesco (2002) 117 Cal.Rptr.2d 921, 96 Cal.App.4th Supp. 62, 67.) But we have found no corresponding statute within the unlawful detainer scheme for a commercial tenancy, and respondents have cited us to none. Respondents do cite to sections 1161.1, subdivision (a) and 1174, subdivision (b), for the proposition that a trial court must determine the amount of rent due when it decides an unlawful detainer action. Those sections so provide.[2] But each section *545 addresses how to assess the amount of rent due where the landlord is successful in the unlawful detainer action. They do not provide authority for a trial court to order abatement of rent in favor of a tenant who has prevailed. "It has long been recognized that the unlawful detainer statutes are to be strictly construed and that relief not statutorily authorized may not be given due to the summary nature of the proceedings. [Citation.]" (WDT-Winchester v. Nilsson (1994) 27 Cal.App.4th 516, 526, 32 Cal.Rptr.2d 511.) Because there is no statutory authority for abatement of rent in favor of a successful commercial tenant, the trial court erred. DISPOSITION The judgment is reversed and the matter is remanded to the trial court with directions to vacate that portion of the judgment abating rental payments from and after August 11, 2003. The judgment is otherwise affirmed. Costs on appeal are awarded to appellants. CURRY and WILLHITE, JJ., concur. NOTES [1] All further references are to the Code of Civil Procedure. [2] As pertinent, section 1161.1, subdivision (a) provides: "[I]n cases of possession of commercial real property after default in the payment of rent: [¶] (a) If the amount stated in the notice provided to the tenant pursuant to subdivision (2) of Section 1161 is clearly identified by the notice as an estimate and the amount claimed is not in fact correct, but it is determined upon the trial or other judicial determination that rent was owing, and the amount claimed in the notice was reasonably estimated, the tenant shall be subject to judgment for possession and the actual amount of rent and other sums found to be due. However, if (1) upon receipt of such a notice claiming an amount identified by the notice as an estimate, the tenant tenders to the landlord within the time for payment required by the notice, the amount which the tenant has reasonably estimated to be due and (2) if at trial it is determined that the amount of rent then due was the amount tendered by the tenant or a lesser amount, the tenant shall be deemed the prevailing party for all purposes. If the court determines that the amount so tendered by the tenant was less than the amount due, but was reasonably estimated, the tenant shall retain the right to possession if the tenant pays to the landlord within five days of the effective date of the judgment (1) the amount previously tendered if it had not been previously accepted, (2) the difference between the amount tendered and the amount determined by the court to be due, and (3) any other sums as ordered by the court." Section 1174, subdivision (b), provides: "The jury or the court, if the proceedings be tried without a jury, shall also assess the damages occasioned to the plaintiff by any forcible entry, or by any forcible or unlawful detainer, alleged in the complaint and proved on the trial, and find the amount of any rent due, if the alleged unlawful detainer be after default in the payment of rent. If the defendant is found guilty of forcible entry, or forcible or unlawful detainer, and malice is shown, the plaintiff may be awarded statutory damages of up to six hundred dollars ($600), in addition to actual damages, including rent found due. The trier of fact shall determine whether actual damages, statutory damages, or both shall be awarded, and judgment shall be entered accordingly."

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2285123/

183 F. Supp. 2d 1077 (2002) Gary BARRON, Jennie Hord, and Kim Alderson, Plaintiffs, v. LEE ENTERPRISES, INC., Herald and Review, Mike Gulledge, and Terri Kuhle, Defendants. No. 00-CV-2273. United States District Court, C.D. Illinois, Urbana Division. January 28, 2002. *1078 *1079 William C. Faber, Jr., Law Firm of William Faber, Ltd., Decatur, IL, for Plaintiff. Charles C. Hughes, Daniel P. Fossier, Hughes, Hill & Tenney, Decatur, IL, for Defendant. ORDER McCUSKEY, District Judge. This case is before the court for ruling on various motions. Following this court's careful review of all the documents presented by the parties and the arguments of the parties, this court rules as follows: Defendants' Motion for Leave to File Affirmative Defenses (# 39) is GRANTED; *1080 Defendants' Motion for Leave to File an Additional Affirmative Defense (# 47) is GRANTED; Plaintiffs' Motions to Strike (# 49, # 53, # 55) are DENIED; and Defendants' Motion for Summary Judgment as to Counts I and II (# 43) is GRANTED. Judgment will be entered in favor Defendants on Counts I and II of Plaintiffs' Complaint. Count I contained Plaintiffs' only federal claim, Plaintiffs' claim for overtime pay under the Fair Labor Standards Act (FLSA). Because judgment has been entered on Plaintiffs' only federal claim, this court declines to retain supplemental jurisdiction over Count V, Plaintiffs' only remaining claim, which is a state law claim for misrepresentation. Count V of Plaintiffs' Complaint will be dismissed without prejudice so that it may be refiled in state court. Because of this court's rulings, this court concludes that Plaintiffs' Motions Regarding Defendants' Experts (# 33) are MOOT. FACTS Defendant Lee Enterprises, Inc. is a Delaware corporation doing business as the Decatur Herald & Review. The Decatur Herald & Review prints and delivers newspapers, on a daily basis, to subscribers in and around Macon County, Illinois. Defendant Mike Gulledge is the publisher of the Decatur Herald & Review and Defendant Terri Kuhle is the human resource/personnel manager at the Decatur Herald & Review. Plaintiffs Garry Barron, Jennie Hord and Kim Alderson were employed by the Decatur Herald & Review as district managers in the circulation department. Barron was employed from August 1998 to May 1999 and was paid $425 per week, plus occasional bonuses. Hord was employed from April 1998 to March 2000. Hord started at $400 per week and was paid $480 per week at the time her employment terminated. Alderson was employed from November 1997 to March 2000. Alderson started at $400 per week and was paid $525 per week at the time her employment terminated. Hord and Alderson also received occasional bonuses. Plaintiffs all testified at their depositions that their job duties as district manager included distributing bundled newspapers to carriers at about 2:00 a.m. each day, finding additional newspapers because there were not enough bundles to cover all the routes, cleaning the service center and parking lot, delivering newspapers on routes that did not have a carrier, recruiting carriers and finding substitutes, responding to customer complaints, and collecting from customers. Plaintiffs testified that much of the work they performed was manual labor. Plaintiffs testified that they were assigned a district but often had to do work in other districts when there was no manager for that district. They also were required to assist other district managers. Plaintiffs testified that they worked every weekend and on holidays. All three Plaintiffs testified that they did not do any sales work. Barron testified that he spent two to two and one-half hours per day delivering newspapers. Hord testified that she spent six to seven hours each day delivering newspapers, sometimes more. Alderson testified that she spent an average of six hours per day delivering newspapers. Barron testified that he viewed his job as a liaison between the Decatur Herald & Review and the independent carriers. During the time Plaintiffs worked at the Decatur Herald & Review, the newspapers included preprinted and dated supplements, such as Sunday color comics, magazines such as Parade, coupons and other types of advertising supplements. Supplements were included with the newspapers on an average of six days per week. *1081 These preprinted supplements were shipped to the Decatur Herald & Review by paying advertisers. These advertisers placed orders with the Decatur Herald & Review to have preprinted and dated supplements inserted in the newspapers and delivered to subscribers in and around Macon County. Preprinted supplements were shipped directly from out-of-state printers in Michigan, Kansas, Wisconsin and Indiana. The preprinted supplements were dated by the individual out-of-state advertisers to coincide with preplanned sales or special promotions by the respective advertiser. The preprinted supplements were inserted into newspapers on a date specified by the individual advertiser and delivered to subscribers by carriers. The preprinted supplements were stored on skids at the Decatur Herald & Review for two to ten days. Plaintiffs delivered newspapers which contained preprinted and dated supplements which were shipped from outside of Illinois. On October 4, 2000, Plaintiffs filed a five-count Complaint (# 1) against Defendants. In the supporting documentation attached to the Complaint, Barron claimed that he worked 75 hours most of the weeks he worked for the Decatur Herald & Review. Hord claimed that she worked 87 hours every week she was employed at the Decatur Herald & Review. Alderson claimed that she worked 102 hours, or more, the majority of the weeks she was employed at the Decatur Herald & Review. In Count I, Plaintiffs alleged that they were entitled to overtime pay pursuant to the FLSA. In Count II, Plaintiffs alleged that Defendants were liable for violations of the Illinois Minimum Wage Law (820 Ill. Comp. Stat. 105/1 et seq.). In Count V, Plaintiffs alleged that they were entitled to damages for misrepresentation of employment conditions and pay.[1] In their Answer to Count I(# 10), Defendants stated that "Plaintiffs were exempt as defined by the Fair Labor Standards Act." ANALYSIS I. DEFENDANTS' MOTIONS FOR LEAVE TO FILE On October 22, 2001, Defendants filed a Motion for Leave to File Affirmative Defenses (# 39) and a Memorandum of Law (# 40) in support. Defendants sought to add three affirmative defenses: (1) that Plaintiffs were exempt from the requirements of the FLSA as bona fide administrative employees; (2) that Plaintiffs were exempt from the requirements of the FLSA for the time they spent delivering newspapers and on outside sales; and (3) that Plaintiffs were exempt from the overtime requirements of the FLSA under § 13(b)(1) of the FLSA, the Motor Carrier Act, because they delivered newspapers containing supplements and other materials printed outside of Illinois to their final intended destination within Illinois. Defendants noted that the Answer they filed clearly stated that Plaintiffs were employees who were exempt from the overtime provisions of the FLSA. Defendants argued that the key issue in the case is "clearly whether Plaintiffs were exempt from coverage under the FLSA." Defendants also noted that the issue of the Motor Carrier Act was raised during the depositions of Plaintiffs' expert witnesses and in the supplemental disclosures of Defendants' expert witnesses. Defendants therefore argued that allowing them to file *1082 their affirmative defense would serve the ends of justice by causing the pleadings to conform to the evidence and would not raise issues that would cause surprise to Plaintiffs or prejudice Plaintiffs' cause of action. Defendants specifically noted that Plaintiffs had "generally declined the opportunity to perform even basic discovery as evidenced by their strategy to forego depositions of the experts retained by [Defendants]." On October 29, 2001, Plaintiffs filed a Memorandum of Law Opposing Defendants' Motion to File New Affirmative Defense-Motor Carrier Act (# 41). Plaintiffs stated that they opposed only the third proposed affirmative defense. Plaintiffs argued that the defense of the Motor Carrier Act exemption was late and a surprise. Plaintiffs argued that the proposed addition of the Motor Carrier Act exemption changed the theory of the defense, raised a panoply of new factual matters and effectively annulled the discovery work of the case. Plaintiffs also argued that Defendants had not provided any explanation for their delay. Plaintiffs did not request additional time for discovery or state what discovery would be necessary to respond to this defense. This court notes that the Motor Carrier Act, 29 U.S.C. § 213(b)(1), is an exemption from the overtime requirements of the FLSA which is included in the FLSA. This court further notes that Defendants have claimed from the time they filed their Answer that Plaintiffs are exempt from the overtime provisions of the FLSA. This court therefore concludes that it would not cause undue surprise or be unduly prejudicial to Plaintiffs to allow Defendants to raise the issue of the exemption provided by the Motor Carrier Act. This court additionally notes that Plaintiffs' argument that allowing Defendants to raise this defense would annul the discovery work done in the case rings somewhat hollow when Plaintiffs conducted very little discovery in this case. Plaintiffs did not depose Defendants expert witnesses or, in fact, Defendants Gulledge or Kuhle. Plaintiffs have not suggested any discovery they would have done or would wish to do based upon the defense of the Motor Carrier Act. Accordingly, for the reasons stated, Defendants' Motion for Leave to File Affirmative Defenses (# 39) is GRANTED. On November 15, 2001, Defendants filed a Motion for Leave to File Additional Affirmative Defense (# 47). Defendants sought to add a Fourth Affirmative Defense based upon the applicable statute of limitations for the FLSA set forth at 29 U.S.C. § 255(a). Plaintiffs filed a Response (# 52) on November 23, 2001. Plaintiffs stated that they were fully aware of the statute of limitations applicable to the FLSA. They stated that adding this affirmative defense did not surprise or prejudice them. Accordingly, Plaintiffs stated that they had no objection to Defendants' Motion. Therefore, Defendants' Motion for Leave to File Additional Affirmative Defense (# 47) is GRANTED. II. PLAINTIFFS' MOTIONS TO STRIKE On November 19, 2001, Plaintiffs filed a Motion to Strike Defendants' Motion for Summary Judgment (# 49). Plaintiffs argued that Defendants' Motion did not comply with Rule 7.1(D) of the Local Rules of the Central District of Illinois. Defendants filed their Response (# 51) on November 23, 2001. Defendants noted that Rule 7.1(D) of the Local Rules was revised, effective December 1, 2000. Defendants argued that their Motion complied with the revised Local Rule. This court agrees with Defendants that their Motion for Summary Judgment, as filed, was in compliance with the revised Local Rule. *1083 Accordingly, Plaintiff's Motion to Strike Defendants' Motion for Summary Judgment (# 49) is DENIED. On December 3, 2001, Plaintiffs filed a Motion to Strike Defendants' Supplemental Disclosures (# 53). Plaintiffs state that Defendants tendered supplemental disclosures on November 21, 2001. Plaintiffs contend that the supplemental disclosures include names of witnesses not previously disclosed. Plaintiffs complain that they will not have an opportunity to depose the newly named witnesses because the discovery deadline has passed. However, Plaintiffs' argument again rings hollow because Plaintiffs did not depose the witnesses named by Defendants during the discovery period. This court concludes that Plaintiffs have not shown that they have been prejudiced by Defendants' supplemental disclosures. Accordingly, Plaintiffs' Motion to Strike Supplemental Disclosures (# 53) is DENIED. On December 7, 2001, Plaintiffs filed a Motion to Strike Affidavits Submitted by Defendants in Support of Defendants' Motion for Summary Judgment (# 55). Plaintiffs complained that the affidavits do not recite that the affiant is competent to testify to the matters contained in the affidavit. Plaintiffs also complained that the information contained in the affidavits was never before disclosed or made known to Plaintiffs. Plaintiffs are correct that Rule 56(e) provides that affidavits filed in support of a motion for summary judgment "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Fed.R.Civ.P. 56(e); Markel v. Board of Regents of Univ. of Wisc. Sys., 276 F.3d 906, 912 (7th Cir.2002). "Thus, statements outside the affiant's personal knowledge or statements that are the result of speculation or conjecture or merely conclusory do not meet this requirement." Stagman v. Ryan, 176 F.3d 986, 995 (7th Cir.1999), cert. denied, 528 U.S. 986, 120 S. Ct. 446, 145 L. Ed. 2d 363 (1999). This court has carefully reviewed the affidavits submitted by Defendants in support of their Motion for Summary Judgment. The court notes that each of the affidavits states the basis for the affiant's knowledge. The affidavits do not include statements which are based upon speculation or conjecture. This court concludes that, in conformity with Rule 56(e), the statements in the affidavits are based upon personal knowledge, set forth facts that would be admissible at trial, and show that the affiants are competent to testify as to the matters stated. This court additionally notes that Plaintiffs have not cited any authority for the proposition that the affidavits should be stricken because the information contained in the affidavits was never before disclosed or made known to Plaintiffs. This court notes that this was almost inevitable because Plaintiffs conducted little discovery in this case. Accordingly, for the reasons stated, Plaintiffs' Motion to Strike Affidavits Submitted by Defendants in Support of Defendants' Motion for Summary Judgment (# 55) is DENIED. III. DEFENDANTS' SUMMARY JUDGMENT MOTION On November 1, 2001, Defendants filed a Motion for Summary Judgment as to Counts I and II(# 43).[2] Defendants also filed a Memorandum in Support (# 44) and *1084 supporting documentation. On December 7, 2001, Plaintiffs filed their Memorandum Opposing Defendants' Motion for Summary Judgment (# 56) and attached supporting documents. Defendants filed a Reply (# 58) on December 19, 2001. A. SUMMARY JUDGMENT STANDARD Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). In ruling on a motion for summary judgment, a district court has one task and one task only: to decide, based upon the evidence of record, whether there is any material dispute of fact that requires a trial. Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir.1994). In making this determination, the court must consider the evidence in the light most favorable to the party opposing summary judgment. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970). "When considering all the evidence presented in a motion for summary judgment, a court cannot make credibility determinations nor can it choose between competing possible inferences." Williams v. Alex's Transp., Inc., 969 F. Supp. 1142, 1144 (N.D.Ill.1997), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The court's role "is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact." Turk v. Buffets, Inc., 940 F. Supp. 1255, 1258 (N.D.Ill.1996), quoting Doe v. R.R. Donnelley & Sons, Co., 42 F.3d 439, 443 (7th Cir.1994). B. COUNT I-OVERTIME WAGE CLAIM UNDER FLSA 1. OVERVIEW In Count I of their Complaint (# 1), Plaintiffs alleged that they are entitled to overtime pay based upon the FLSA. Defendants, in their Motion for Summary Judgment (# 43), argue that they are entitled to judgment on Plaintiffs' claims in Count I because Plaintiffs were exempt from the overtime requirement of the FLSA.[3] Under the FLSA, employers must pay their employees at least one and a half times their regular wages for the number of hours worked that exceed 40 in a given week. 29 U.S.C. § 207(a)(1); Piscione v. Ernst & Young, L.L.P., 171 F.3d 527, 533 (7th Cir.1999); Mielke v. Laidlaw Transit, Inc., 102 F. Supp. 2d 988, 990 (N.D.Ill.2000). However, as all employees know, the FLSA includes numerous exemptions from this requirement. Mielke, 102 F.Supp.2d at 990, citing 29 U.S.C. § 213(a)(1)-(17); 29 U.S.C. § 213(b)(1)-(30). Defendants contend that three exemptions apply in this case. First, Defendants claim that Plaintiffs are exempt based upon § 13(b)(1) of the FLSA, the Motor Carrier Act, because Plaintiffs performed exempt motor carrier work. 29 U.S.C. § 213(b)(1). Second, Defendants argue that Plaintiffs are exempt because they were employees "employed in a bona fide . . . administrative . . . capacity." 29 U.S.C. § 13(a)(1); Piscione, 171 F.3d at *1085 533. Third, Defendants argue that Plaintiffs were exempt under § 13(d) of the FLSA because they were "engaged in the delivery of newspapers to the consumer." 29 U.S.C. § 213(d). The FLSA is a remedial act and the exemptions from its requirements are to be narrowly construed against employers. Klein v. Rush-Presbyterian St. Luke's Med. Ctr., 990 F.2d 279, 282 (7th Cir.1993). Defendants bear the burden of establishing that Plaintiffs fit within the claimed exemptions. See Piscione, 171 F.3d at 533; Shaw v. Prentice Hall Computer Publ'g, Inc., 151 F.3d 640, 642 (7th Cir.1998). Defendants have cited only one published opinion which is directly on point, Webb v. Athens Newspapers, Inc., 999 F. Supp. 1464 (M.D.Ga.1998). Plaintiffs have not cited, and this court has not found, any contrary authority. This court finds the reasoning of the court in Webb very persuasive and applicable to this case. In Webb, the plaintiffs were employed as assistant district managers and district managers in the circulation department of a newspaper. The plaintiffs in Webb had job duties very similar to the job duties Plaintiffs have testified they had in this case. In Webb, the plaintiffs also delivered newspapers on open routes. The district court in Webb first concluded that genuine issues of material fact precluded a finding that the plaintiffs were employed in a bona fide administrative capacity and were exempt from the requirements of the FLSA under 29 U.S.C. § 213(a)(1). Webb, 999 F.Supp. at 1467-68. The court in Webb also recognized that § 13(d) of the FLSA exempted the work done by Plaintiffs in delivering newspapers and that this exemption could be "tacked" with exempt work under the administrative exemption. See 29 C.F.R. § 541.600. The court concluded, however, that "[b]ecause genuine factual issues exist as to the administrative exemption, the section 13(d) exemption cannot be utilized until those issues are resolved." Webb, 999 F.Supp. at 1468. Finally, however, the court determined that the Motor Carrier Act applied because the plaintiffs were required to deliver newspapers almost every day and the newspapers contained supplements at least six and sometimes seven days a week, many of which were printed outside the state. Webb, 999 F.Supp. at 1468-72. Therefore, the court concluded that the plaintiffs were exempt from the overtime requirements of the FLSA. Webb, 999 F.Supp. at 1473. This court concludes that the same result is warranted in this case. 2. MOTOR CARRIER ACT EXEMPTION As noted, Defendants argue that the overtime provisions of the FLSA are not applicable because Plaintiffs performed exempt motor carrier work. The Motor Carrier Act provides that employers do not have to pay overtime compensation to "any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service pursuant to the provisions of section 31502 of Title 49." 29 U.S.C. § 213(b)(1). For the statutory exemption under § 13(b)(1) to apply, the Secretary of Transportation need not actually regulate the employee or his employer; "it applies whenever the Secretary has the authority to regulate a driver's hours and safety." Klitzke v. Steiner Corp., 110 F.3d 1465, 1468 (9th Cir.1997); see also Webb, 999 F.Supp. at 1468 n. 4. The Department of Transportation (DOT) "retains its jurisdiction over the specified employees regardless of whether it has chosen to actually exercise its regulatory authority, and the overtime exemption applies to such employees despite the lack of DOT regulation." *1086 Turk, 940 F.Supp. at 1259, citing Levinson v. Spector Motor Serv., 330 U.S. 649, 661, 67 S. Ct. 931, 91 L. Ed. 1158 (1947); Southland Gasoline Co. v. Bayley, 319 U.S. 44, 47, 63 S. Ct. 917, 87 L. Ed. 1244 (1943). The Motor Carrier Act extends the power of the Secretary of Transportation to "motor carriers engaged in interstate commerce." Webb, 999 F.Supp. at 1468, quoting 49 U.S.C. § 302(a). An "employee is subject to the power of the Secretary of Transportation if the employee, in the performance of his or her duties, affects the safe operation of motor vehicles transporting goods in interstate commerce on public roadways." Webb, 999 F.Supp. at 1468. The jurisdiction of the Secretary of Transportation necessarily extends to transportation within a state that "is a practical continuity of movement from the manufacturers or suppliers without the state, through [a] warehouse and on to customers whose prior orders or contracts are being filled." Klitzke, 110 F.3d at 1469, quoting Walling v. Jacksonville Paper Co., 317 U.S. 564, 569, 63 S. Ct. 332, 87 L. Ed. 460 (1943). "The activities of one who drives in interstate commerce, however frequently or infrequently, are not trivial. Such activities directly affect the safety of motor vehicle operations." Turk, 940 F.Supp. at 1261, quoting Crooker v. Sexton Motors, Inc., 469 F.2d 206, 210 (1st Cir. 1972). Even a minor involvement in interstate commerce as a regular part of an employee's duties subjects the employee to the jurisdiction of the Secretary of Transportation. Williams, 969 F.Supp. at 1144. The court in Webb noted that the nonjudicial enforcement and interpretation of the FLSA is done by the Department of Labor through the Administrator of the Wage and Hour Division. Webb, 999 F.Supp. at 1469, citing 29 U.S.C. § 204. The views of the Administrator on the applicability of the exemption under § 13(b)(1) have been expressed in interpretations from time to time. Webb, 999 F.Supp. at 1469. While these interpretations are not binding on the courts, they can provide guidance. Webb, 999 F.Supp. at 1469. The Wage and Hour Division's Field Operation Handbook contains interpretations of the Administrator as they relate to specific employment situations. Webb, 999 F.Supp. at 1469. Section 24d00(b) of the Handbook addresses the application of the § 13(b)(1) exemption as it relates to persons transporting and delivering newspapers. The Handbook states: (a) The delivery of newspapers within the State in which they are printed is not transportation over which the DOT has jurisdiction. While such delivery drivers are engaged in the interstate communication or transmission of news so as to be covered by the FLSA, they are not transporting property (the newspaper) in interstate or foreign commerce within the meaning of the Motor Carrier Act. (b) Certain newspapers of the type described in (a) above contain as an integral part weekly supplements, such as comics, magazines and the like, which are produced outside the State. If these supplements are obtained by the newspaper in complete and finished form and no processing work is performed on them by the newspaper establishment, the movement within the State of the supplements printed out of State constitutes part of a practical continuity of movement of the goods from the point of origin to the ultimate destination. Thus, the Sec 13(b)(1) exemption is applicable to the delivery drivers who transport and deliver the newspaper containing the supplements. The temporary storage of the supplements at the newspaper *1087 establishment awaiting insertion into the paper does not change the interstate character of the transportation. Field Operations Handbook § 24d00. In Webb, the evidence showed that the plaintiffs were required to drive newspapers to subscribers almost every day they worked for the newspaper. The evidence also showed that the newspapers contained supplements at least six and sometimes seven days a week, many of which were printed outside of the state. The court took judicial notice of the fact that "certain types of advertising supplements, including those involved in this case, are dated materials." Webb, 999 F.Supp. at 1472 n. 7. The court stated: Supplements such as the Sunday comics and Parade magazine, as well as others, are dated materials. As such, the advertisers only receive the intended benefit from them if they reach the consumers on the dates printed on the supplements. . . . Once the date on the supplement has passed, the supplement is worthless to the advertiser. Webb, 999 F.Supp. at 1472. The court in Webb concluded that it was apparent that the plaintiffs were engaged in "interstate commerce" within the meaning of the § 13(b)(1) exemption "in the transportation of these supplements, whose final destination points were the homes of Athens Newspapers' customers." Webb, 999 F.Supp. at 1472. The court therefore concluded that the plaintiffs were exempt from the overtime wage requirements of the FLSA based upon the § 13(b)(1) exemption. Webb, 999 F.Supp. at 1472. In this case, the evidence shows that, during their employment, Plaintiffs delivered newspapers on a daily basis, and for a substantial period of time each day. The evidence also shows that, during the time Plaintiffs worked at the Decatur Herald & Review, the newspapers included preprinted and dated supplements, such as Sunday color comics, magazines such as Parade, coupons and other types of advertising supplements. Supplements were included with the newspapers on an average of six days per week. These preprinted supplements were shipped to the Decatur Herald & Review by paying advertisers. These advertisers placed orders with the Decatur Herald & Review to have preprinted and dated supplements inserted in the newspapers and delivered to subscribers in and around Macon County. Preprinted supplements were shipped directly from out-of-state printers in Michigan, Kansas, Wisconsin and Indiana. The preprinted supplements were dated by the individual out-of-state advertisers to coincide with preplanned sales or special promotions by the respective advertiser. The preprinted supplements were inserted into newspapers on a date specified by the individual advertiser and delivered to subscribers by carriers. The preprinted supplements were stored on skids at the Decatur Herald & Review for two to ten days. Based upon these facts, this court concludes that the reasoning of the court in Webb applies, and Plaintiffs are exempt from the overtime wage requirements of the FLSA. Plaintiffs essentially concede this point, but argue that Defendants have advanced the Motor Carrier Act exemption too late, after discovery closed. Plaintiffs contend that the late assertion of this exemption is unfair to them. While this court is not unsympathetic to Plaintiffs' argument, this court again notes that Plaintiffs have not suggested any discovery they would have done or would wish to do based upon Defendants' assertion of the Motor Carrier Act exemption. In Defendants' Reply (# 58), Defendants note that Plaintiffs have never sought an extension to conduct discovery pursuant to Rule 56(f) (Fed.R.Civ.P. 56(f)). This court concludes *1088 that Plaintiffs have not shown prejudice as they have not shown how discovery could undermine the application of the Motor Carrier Act exemption in this case. This court fails to see how Plaintiffs could challenge the fact that the newspapers they delivered contained dated supplements which were printed out of state. This court also notes that Plaintiffs could not challenge their own testimony that they delivered these newspapers on a daily basis, and for a substantial period of time each day. Therefore, for the reasons stated, and based upon Webb, this court concludes that Defendants are entitled to summary judgment on Plaintiffs' claim for overtime pay under the FLSA. Accordingly, Defendants are entitled to summary judgment on Count I of Plaintiffs' Complaint. Because of this conclusion, this court does not need to consider Defendants additional arguments that Plaintiffs are exempt based upon the administrative and newspaper delivery exemptions.[4] C. COUNT II-MINIMUM WAGE LAW CLAIM In Count II of their Complaint, Plaintiff alleged that, as a result of the many hours worked each week by Plaintiffs, Defendants failed to pay them the minimum wage as required by the Illinois Minimum Wage Law. See 820 Ill. Comp. Stat. 105/4(a) (West 2000). In their Motion for Summary Judgment, Defendants argue that, if summary judgment is granted as to Count I, summary judgment should also be granted as to Count II. Plaintiffs have not responded to this argument. This court agrees with Defendants. The Illinois Minimum Wage Law excludes from its definition of "employee" those individuals for whom the Secretary of Transportation has jurisdiction under the Motor Carrier Act. Turk, 940 F.Supp. at 1262, citing 820 Ill. Comp. Stat. 105/3(d)(7) (West 2000). Accordingly, this court concludes that Defendants are entitled to summary judgment on Count II of Plaintiffs' Complaint. IV. SUPPLEMENTAL JURISDICTION This court notes that the only claim remaining in this case is Count V, a state law claim of misrepresentation. 28 U.S.C. § 1367(a) provides that, "in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C. § 1367(a). 28 U.S.C. § 1367(c) provides: The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if — (1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. 28 U.S.C. § 1367(c) (emphasis added). "The plain wording of the statute makes *1089 clear that a district court has discretion to retain or to refuse jurisdiction over state law claims." Groce v. Eli Lilly & Co., 193 F.3d 496, 500-01 (7th Cir.1999). A district court, in considering the factors set forth in § 1367(c) "should consider and weigh in each case, and at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity." Groce, 193 F.3d at 501, quoting City of Chicago v. International College of Surgeons, 522 U.S. 156, 173, 118 S. Ct. 523, 139 L. Ed. 2d 525 (1997). In this case, Plaintiffs' Complaint alleged a cause of action based upon the FLSA, which gave this court original jurisdiction over the case. This court therefore had supplemental jurisdiction over Plaintiffs' state law claims. However, judgment has now been entered in favor of Defendants on Plaintiffs' only federal claim. "`[T]he general rule is that, when all federal claims are dismissed before trial, the district court should relinquish jurisdiction over pendent state-law claims rather than resolving them on the merits.'" Kennedy v. Schoenberg, Fisher & Newman, Ltd., 140 F.3d 716, 727 (7th Cir.), cert. denied, 525 U.S. 870, 119 S. Ct. 167, 142 L. Ed. 2d 136 (1998) (quoting Wright v. Associated Ins. Cos., 29 F.3d 1244, 1251 (7th Cir.1994)). Cases involving difficult and unresolved issues of state law may well be adjudicated more accurately and more expeditiously in a state court. Centres, Inc. v. Town of Brookfield, Wis., 148 F.3d 699, 704 (7th Cir.1998). In addition, respect for the state's interest in applying its own law, along with the state court's greater expertise in applying state law, are paramount concerns. Kennedy, 140 F.3d at 728. Based upon these considerations, this court, in its discretion, declines to exercise supplemental jurisdiction over Plaintiffs' remaining state law claim. See 28 U.S.C. § 1367(c)(3); Kennedy, 140 F.3d at 727-28. V. PLAINTIFFS' MOTIONS REGARDING DEFENDANTS' EXPERTS On October 22, 2001, Plaintiffs filed their Motions Regarding Defendants' Experts (# 33). Plaintiffs first argued that the experts disclosed by Defendants, John P. Murray and Philip K. Hanna, were not qualified to render expert opinions in this case. Plaintiffs also argued that the supplemental opinions provided by Murray and Hanna were not timely as they were disclosed after the deadline for disclosing experts. Plaintiffs next argued that Hanna's testimony should not be allowed because it was identical to the testimony of Murray and was therefore cumulative. Finally, Plaintiffs argued that the experts' opinions regarding the credibility of Plaintiffs should be barred. Defendants did not rely on their experts' reports in support of their Motion for Summary Judgment.[5] Accordingly, this court did not need to consider the issue of the admissibility of the experts' opinions prior to ruling on the Motion for Summary Judgment. At this point, judgment has been entered in favor of Defendants on Count I and Count II of the Complaint and Count V will be dismissed by this court. Therefore, this court concludes that Plaintiffs' Motions Regarding Defendants' Experts (# 33) are MOOT. IT IS THEREFORE ORDERED THAT: *1090 (1) Defendants' Motion for Leave to File Affirmative Defenses (# 39) is GRANTED. (2) Defendants' Motion for Leave to File an Additional Affirmative Defense (# 47) is GRANTED. (3) Plaintiffs' Motions to Strike (# 49, # 53, # 55) are DENIED. (4) Defendants' Motion for Summary Judgment as to Counts I and II (# 43) is GRANTED. Judgment is entered in favor of Defendants and against Plaintiffs on Counts I and II of Plaintiffs' Complaint. Count V remains pending. However, because judgment has been entered on Plaintiffs' only federal claim, this court declines to exercise supplemental jurisdiction over the remaining state law claim. Plaintiffs' remaining claim, Count V, is dismissed without prejudice. Plaintiffs may refile this claim in state court pursuant to § 13-217 of the Illinois Code of Civil Procedure (735 Ill. Comp. Stat. 5/13-217 (West 2000)). (5) Plaintiffs' Motions Regarding Defendants' Experts (# 33) are MOOT. (6) This case is terminated. The final pretrial conference scheduled for February 8, 2002, and the jury trial scheduled for March 4, 2002, are hereby VACATED. The parties shall be responsible for their own court costs. NOTES [1] Plaintiffs' Complaint also included Count III, reformation of employment contracts, and Count IV, accounting. This court entered an Order (# 23) on June 4, 2001, which accepted the Magistrate Judge's Report and Recommendation (# 19), and dismissed Counts III and IV with prejudice. [2] Defendants are not seeking summary judgment on Count V of Plaintiffs' Complaint. In Count V, Plaintiffs are seeking damages for misrepresentation based upon Illinois law. [3] Defendants also claim that Plaintiffs are exempt from the minimum wage and record-keeping requirements of the FLSA. However, this court has carefully reviewed Count I of Plaintiffs' Complaint and concludes that Plaintiffs have only brought an action under the FLSA for overtime pay. [4] This court notes that, if this issue was considered, this court would conclude, as did the court in Webb, that genuine issues of material fact exist regarding whether these exemptions apply to Plaintiffs. [5] Plaintiffs' did not depose either expert, so deposition testimony of the experts was not available.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/1760318/

961 S.W.2d 253 (1997) Gregory Andrew FRANKS, Appellant, v. The STATE of Texas, Appellee. No. 01-95-01273-CR. Court of Appeals of Texas, Houston (1st Dist.). May 29, 1997. Discretionary Review Refused December 3, 1997. *254 E.G. Huff, Houston, for appellant. Sandra J. Pomerantz, Houston, for appellee. Before TAFT, WILSON, ANDELL and HUTSON-DUNN[1], JJ. Published in Part Pursuant to Tex R. App. P. 90. OPINION TAFT, Justice. This appeal involves a conviction for indecency with a child. The court sentenced the appellant, Gregory Andrew Franks, to nine years in prison and assessed a $5,000 fine. The complaints involved in this appeal center around exchanges between the appellant and three jurors during a recess in appellant's criminal trial. In three points of error, the appellant asserts that the trial court abused its discretion in denying his motion for mistrial, for failing to order a separate competency hearing before a jury, and for failing to refer his motion for recusal to an administrative judge. The appellant also alleges that he was denied a fair trial guaranteed by the Texas Constitution because of ineffective representation and cumulative error. Motion for Mistrial In his first point of error, the appellant asserts that the trial court erred in denying his motion for mistrial. The appellant asserts that at least two of the three jurors he talked to received information clearly prejudicial to his defense. Furthermore, he asserts the trial court did not ask either of these jurors whether the information given them by appellant would affect their deliberations, nor did they explicitly claim that their encounter with the appellant would have no such effect. However, the judge did admonish each of the jurors that they were not to consider anything the appellant may have said in their deliberations, to which they agreed. In addition, the judge admonished the jurors not to divulge any information about their encounter with the rest of the panel. During an early recess, the appellant approached juror Samford while he was waiting for the elevator. Before Samford realized what was happening, the appellant reached out and shook his hand and introduced himself. The appellant may have said something about meeting Samford the day before. Samford, upon realizing who the appellant was, stood by stonefaced and did not reply. The judge admonished Samford not to use this encounter in any part of his deliberations, and Samford agreed. In another recess, the appellant entered the elevator with two other jurors. He attempted to exchange pleasantries with them, but the two stood by quietly not acknowledging him. The appellant then asked them how they felt about the trial's progress and said something about alcohol or drug use. The two jurors continued to ignore him. They then got off the elevator and walked away from him. During the court's examination of juror Tanner, the following colloquy occurred: THE COURT: Okay. What was it that he said to you? THE JUROR: He asked us how it was going, how we thought it was going, and made a remark about the alcohol and something about the drugs that was very— this part I am not even sure I even heard. Sounded like he just said Rosemary or basil or, you know, because I am not familiar with that kind of stuff; but, did refer to something like that. Okay. THE COURT: Obviously, this is not to be any part of your deliberations? THE JUROR: No, it has no— THE COURT: Okay. THE JUROR: I have no problem with that. THE COURT: Okay. Great. If you would, please, when you go back to the *255 jury room, please don't discuss the fact that you and I have had this conversation outside the presence of the rest of the jury. THE JUROR: In fact, I never said anything. Neither one of us said to the other jurors what was said to us. Just the one was spoken to and how we should handle it. (sic) The court then examined juror Park. When asked whether there had been any conversation in the elevator between anybody about the case, Park replied that there had not been and that he had heard nothing about the case. He did relate that the appellant asked him what he thought, to which he did not reply. The court then admonished Park not to use this contact with the appellant in his deliberations and not to speak about it with any of the other jurors. Article 36.22 of the Code of Criminal Procedure states "No person shall be permitted to converse with a juror about the case on trial except in the presence and by the permission of the court." TEX.CODE CRIM. P. ANN. art. 36.22 (Vernon 1981). Rule 30 of the Rules of Appellate Procedure provides that a new trial shall be granted an accused where a juror has conversed with any other person in regard to the case. TEX.R.APP. P. 30(b)(7). It appears no Texas case has addressed the situation presented here involving a defendant who initiates unauthorized conversation with jurors. The difficulty with treating a defendant initiating jury contact like other instances of unauthorized conversation with the jury is that it gives a defendant the power to create a mistrial by his own actions. The general rule is that injury is presumed whenever a juror receives information about the case from an unauthorized source. Thus, if a defendant or his agent gives a juror information about the case it is impossible for the trial court to avoid granting a mistrial. A defendant who does not like the way the trial is going can deliberately cause a mistrial by engaging in such unauthorized conversation with jurors. By treating the error as reviewable, the foundation is laid for requiring a trial court to declare a mistrial whenever a defendant engages in a more blatant violation of article 36.22. It is a well-settled principle of law that an accused cannot invite error and then complain of it. See Ex parte Guerrero, 521 S.W.2d 613, 614 (Tex.Crim.App.1975). The rule applies when a defendant is the "moving factor" creating the error. Id. There is no question that the appellant was the moving factor creating the error in this case. Accordingly, we hold the rule of invited error applies here to preclude our review of point of error one. The judgment is affirmed. En banc review requested by TAFT, J., with respect to the first point of error. TEX.R.APP. P. 100(f). SCHNEIDER, C.J., and COHEN, MIRABAL, O'CONNOR, WILSON, HEDGES, TAFT and NUCHIA, JJ., voted for en banc review. ANDELL, J., voted against en banc review. Joining in this portion of the opinion are SCHNEIDER, MIRABAL, COHEN, WILSON, HEDGES and NUCHIA, JJ. ANDELL, J., concurring in the opinion on point of error one, joined by O'CONNOR and HUTSON-DUNN, JJ. ANDELL, Justice, concurring. The discussion of the remaining points of error does not meet the criteria for publication TEX.R.APP.P. 90, and is thus ordered not published. ANDELL, Justice, concurring. I concur with the majority's resolution of the first point of error, concerning jurors receiving information from an unauthorized source. I would overrule the point of error. However, I would not analyze it under the doctrine of invited error. The majority extends the doctrine of invited error too far by including actions by a defendant alone that do not involve an action by the court. In this case, the appellant filed a motion for mistrial based on the fact that the jury had been exposed to evidence from an outside source, *256 namely himself. The judge did not grant the mistrial. Invited error is defined as: "In appellate practice, the principle of invited error is that if, during the progress of a cause, a party requests or moves the court to make a ruling which is actually erroneous, and the court does so, that party cannot take advantage of the error on appeal or review." Black's Law Dictionary 543 (6th edition)(1990). The Court of Criminal Appeals has applied invited error when the defendant has "invited" the court to do something, the court has then done the act, and thereafter the defendant complains of the court's action. See Kelley v. State, 823 S.W.2d 300, 302 (Tex. Crim.App.1992) (defendant requested a name change, trial court changed indictment to reflect name change, when defendant complained the name change was error, the court held any objection was waived); Capistran v. State, 759 S.W.2d 121, 124 (Tex.Crim.App. 1988) (defendant requested the trial proceed on the evidence presented during an earlier trial, trial court did so, and then defendant complained on appeal the trial court erred in receiving evidence without appellant's written consent, appellate court held objection waived); Livingston v. State, 739 S.W.2d 311, 341 (Tex.Crim.App.1987) (defendant requested a charge, the court gave the charge requested, when defendant complained the charge was error, appellate court held error was invited.); Murphy v. State, 640 S.W.2d 297, 299-300 (Tex.Crim.App.1982) (appellate court held defendant was estopped from complaining about the legality of a search when he elected to prevent any disputed fact issue from coming before jury); Cadd v. State, 587 S.W.2d 736, 741 (Tex.Crim.App.1979) (appellate court held defendant in no position to complain about the charge given because the defendant requested the charge); Holmes v. State, 140 Tex. Crim. 619, 146 S.W.2d 400, 403 (App.1940) (defendant objected to the wording of the charge, the wording was taken out, then defendant complained the wording was not in the charge, appellate court held defendant invited error and could not complain). A review of the appellate court decisions also shows the doctrine of invited error has only been applied when there has been an "invitation" by the defendant to the court to commit error, the court does what was requested, and thereafter the defendant complains of that action. See McCray v. State, 861 S.W.2d 405, 409 (Tex.App.—Dallas 1993, no pet.) (court held defendant invited error when he rejected a defensive issue in the charge and then complained when it was not put in); Mann v. State, 850 S.W.2d 740, 742 (Tex.App.—Houston [14th Dist.] 1993, pet. ref'd) (defendant who stipulated to evidence and told court to take judicial notice of all testimony and evidence presented at another hearing, invited trial court error and could not complain on appeal); Ex parte Hargett, 827 S.W.2d 606, 607-608 (Tex.App.—Austin 1992, pet. ref'd) (defendant invited error when he told the court the case could be decided on the record and then complained on appeal that he was denied an evidentiary hearing); Rivera v. State, 684 S.W.2d 174, 176 (Tex.App.—Houston [14th Dist.] 1984, pet. ref'd) (defendant invited error when he put his own character at issue, trial court allowed in State's evidence about his character, and on appeal defendant contends trial court erred in allowing it in). In this case, only juror Tanner heard anything from appellant about the case. Therefore, the two other jurors' interactions with the appellant did not prejudice him in any way, and the trial court did not err in denying the appellant's motion for mistrial based on their testimony alone. Tanner did hear something relating to the trial but was unsure exactly what it was she heard. She could not specifically relate what she heard or how it related to the trial. Of course, information that the appellant was intoxicated or was using drugs at the time of the offense could prejudice the appellant's case. However, Tanner agreed that she would not use the information in any way during her deliberations. She also agreed not to discuss the matter with any other juror. I would resolve point of error one by holding that the trial court did not err in denying the appellant's motion for mistrial because the appellant did not show how he was harmed by his discussions with the jurors. This case should not expand the invited error doctrine to a situation that involves a *257 defendant's actions alone. The appellant did not "invite" the court to commit error and the court committed no error. O'CONNOR and HUTSON-DUNN, JJ., join this concurrence. NOTES [1] The Honorable D. Camille Hutson-Dunn, retired Justice, Court of Appeal, First District of Texas at Houston, sitting by assignment.

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713 A.2d 339 (1998) 1998 ME 169 Jeanette B. DUFOUR v. INTERNAL MEDICINE ASSOCIATES and Hanover Insurance Co. Supreme Judicial Court of Maine. Argued June 9, 1998. Decided July 7, 1998. Jeffrey Neil Young (orally), McTeague, Higbee, MacAdam, Case, Watson & Cohen, Topsham, for employee. Michael Richards (orally), Troubh, Heisler & Piampiano, P.A., Portland, for employer. Before WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, and SAUFLEY, JJ. RUDMAN, Justice. [¶ 1] Internal Medicine Associates (IMA) appeals from the decision of the Workers' Compensation Board granting Jeanette B. Dufour's petition for award related to a 1990 injury. IMA contends that, because Dufour had returned to her pre-injury employment without a loss of earnings, and because she voluntarily quit her post-injury employment in 1994, any resulting loss of earning capacity is due to her decision to quit and not due to her work-related injury.[1] We disagree and affirm the decision. [¶ 2] Dufour suffered a work-related carpal tunnel injury on September 10, 1990, while working as an office manager for IMA. She returned to work without a reduction of earnings, and was able to comply with her doctor's recommendation to reduce typing and keyboard work by delegating data entry assignments to other employees. Dufour left her employment in 1994 for reasons unrelated to her injury. Dufour found employment at Mechanical Systems Engineers roughly one week after leaving IMA. Eight months later, she quit her position with Mechanical Systems Engineers in order to accept a position at Central Maine Orthopedics. Dufour was terminated from this latter employment after a month. In February 1995, she obtained temporary employment through Bonney Personnel performing data entry work, during which she suffered a significant aggravation of her 1990 work-injury. [¶ 3] Dufour filed a petition for award against IMA for the September 10, 1990 injury. In 1997, the Board granted Dufour's petition, finding that: ... Dufour left her job with [IMA] as of January 15, 1994 for reasons unrelated to her work injury. At the time she left her job, she was physically capable of performing it. I believe her testimony that she periodically suffered symptoms in her hands and wrists between the date of injury and the time she left, but I note she never lost time from work. The Board also found that, although Dufour's aggravation injury in 1995 resulted in a short-term period of increased incapacity, "[a]s of May 9, 1995, she was back to her baseline level of symptoms" that she had experienced prior to her 1995 aggravation injury.[2] The Board concluded further that Dufour's earnings of $400 a week at Mechanical *340 Engineering Systems accurately reflects her current post-injury earning capacity. The Board awarded short-term total and fifty percent continuing partial incapacity benefits based on the difference between her 1990 average weekly wage and her post-injury earning capacity of $400 a week.[3] We granted IMA's petition for appellate review pursuant to 39-A M.R.S.A. § 322 (Supp.1997). [¶ 4] IMA does not dispute that Dufour's entitlement to partial benefits for her 1990 injury is governed by former section 55-B, which provided: "While the incapacity for work resulting from the injury is partial, the employer shall pay the injured employee a weekly compensation equal to 2/3 the difference, due to the injury, between the employee's" pre-injury earnings and what the employee "is able to earn after the injury...." 39 M.R.S.A. § 55-B (Supp.1990) (effective for injuries occurring after September 30, 1989 and before October 17, 1991), repealed and replaced by P.L.1991, ch. 615, § D-7 (emphasis added). IMA contends that, because Dufour voluntarily quit her employment, any loss of earnings was not "due to the injury," but due to her own voluntary decision to quit. IMA relies on Coty v. Town of Millinocket, 393 A.2d 156, 157 (Me.1978). In Coty, we affirmed the denial of the employee's petition for further compensation, based on the finding that his unsuccessful work-search after being laid off from his post-injury job was the result of a general economic downturn, and not due to the employee's incapacity. Id.; see also 1C A. Larson, The Law of Workmen's Compensation, § 57.63, at 10-492.11-12 (1993) ("[l]oss of employment should not be deemed due to disability if a worker without the disability would lose employment or suffer a reduction in earnings under the same economic conditions"). [¶ 5] We have stated, however, that "evidence of actual wages is a useful indicator [of post-injury earning capacity], not a talisman" and "the mere fact, standing alone, that the employee is earning the same after the injury as before will not bar an award for partial disability." Severy v. S.D. Warren Co., 402 A.2d 53, 55 (Me.1979); see also Hardy v. Hardy's Trailer Sales, Inc., 448 A.2d 895, 898-99 (Me.1982); Mailman v. Colonial Acres Nursing Home, 420 A.2d 217, 220-21 (Me.1980); 1C A. Larson, The Law of Workmen's Compensation, § 57.21(c) (1993). The Board found in this case that, although Dufour was able to return to her pre-injury employment with IMA at her pre-injury wage, those earnings did not reflect her true capacity to earn after her injury. Based on competent evidence, the Board concluded that her actual ability to earn for this period is best reflected by her earnings of $400 a week at Mechanical Engineering Systems after leaving IMA. This is a factual determination which we will overturn only if the evidence compels otherwise. See Smith v. Great Northern Paper, Inc., 636 A.2d 438, 439 (Me.1994). In Coty, 393 A.2d at 157, by contrast, the employee provided no evidence of a diminished earning capacity. See also Mailman, 420 A.2d at 220. [¶ 6] IMA contends, however, that even if $400 a week were all that Dufour is able to earn in the general labor market, Dufour suffered no loss of earning capacity because IMA had accommodated her injury and she was "able to earn" her pre-injury wage. While the Board could have found that Dufour was able to earn a wage reflecting the wage she was earning at the time she left her employment with IMA, it found other facts more compelling and concluded that her current earning capacity is less. The statute does not compel the Board to set her current earning capacity at the amount she was earning when she left IMA. [¶ 7] IMA contends that its interpretation is consistent with the purpose of the Act to encourage employers to accommodate their employees' injuries and return them to employment at or near their pre-injury wage. Although such a result would encourage employers to accommodate injured employees and return them to work, it could also have a *341 chilling effect on an employee's willingness to return to work in a specially adapted position. We find no support in former section 55-B for IMA's contention, and therefore affirm the decision of the Board.[4] The entry is: Decision of the Workers' Compensation Board affirmed. NOTES [1] Because Dufour's injury occurred prior to January 1, 1993, IMA concedes that 39-A M.R.S.A. § 214 (Supp.1997) does not apply. P.L.1991, ch. 885, § A-10. [2] IMA filed a petition for award against Bonney Personnel for Dufour's 1995 injury. IMA's petition was resolved by a consent decree in 1996. [3] The Board did not award incapacity benefits for the period between her termination of employment with IMA and her aggravation injury in 1995. Dufour has not appealed from that decision. [4] IMA's additional contention that it is entitled to terminate benefits pursuant to 39-A M.R.S.A. § 218(5) (Supp.1997), even in the absence of a petition for reinstatement, was recently rejected by our decision in Thompson v. Claw Island Foods, 1998 ME 101, ¶¶ 6, 16-19, 713 A.2d 316.

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695 F. Supp. 398 (1988) Robert K. NELLIS, Plaintiff, v. SERVICE WEB OFFSET CORP., Defendant. No. 87 C 5473. United States District Court, N.D. Illinois, E.D. September 15, 1988. Russell J. Fee, Oak Park, Ill., for plaintiff. *399 Timothy L. Moorehead, McDermott, Will & Emery, Chicago, Ill., for defendant. MEMORANDUM OPINION AND ORDER SHADUR, District Judge. Robert Nellis ("Nellis") has sued his ex-employer Service Web Offset Corp. ("Service Web"), asserting a violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621-634. Service Web has moved for summary judgment under Fed.R.Civ.P. ("Rule") 56. For the reasons stated in this memorandum opinion and order, the motion is granted and this action is dismissed. Facts[1] In July 1977 Service Web, which is engaged in the commercial printing business, hired Nellis (then aged 54) as a production operator (Nellis Dep. 5-6). That job required Nellis to oversee the entire production process of printing jobs assigned to him (id. 24). At that time Nellis' supervisor was the head of the production department, David Liberty ("Liberty") (id. 52). Production operators work closely with the salespeople who give them job orders. For that purpose Liberty would assign specific salespeople to work with particular production operators (id. 58-60). Nellis soon encountered problems when salespeople Erwin Lukas and Kate McCarty, then assigned to him, complained to Service Web President Donald Borzak ("Borzak") that Nellis was not responsive when they needed decisions made and that Nellis was unable to provide answers to questions about the progress of projects. Later all the other salespeople assigned to Nellis expressed dissatisfaction with his performance (Borzak Dep. 46). Unfortunately, Nellis' performance problems were not limited to his relationship with salespeople: 1. Borzak also complained to him about his judgment (Nellis Dep. 71-72). 2. Nellis apparently had problems handling complicated multi-piece jobs and conceptualizing layouts for such jobs (id. 166-67, 193). 3. Shipping department employees complained about having to make decisions Nellis should have made (id. 198-99). 4. Finally, Liberty received complaints from the foremen of all four plant departments, expressing their frustrations at not being able to read Nellis' instructions and at not receiving answers to their questions (Liberty Dep. 74-87). Liberty eventually discussed those complaints with Nellis (Liberty Dep. at 87-89). Liberty also conducted annual oral performance evaluations of Nellis. During those reviews Liberty criticized Nellis for lacking aggressiveness (Nellis Dep. 199-200). Service Web's Executive Committee comprised Borzak, Secretary-Treasurer and part-owner Alan Mitchell ("Mitchell"), Chief Operating Officer Joan Vanderbeck and department heads Carl Bruno, Robert Saluga ("Saluga") and Liberty. They frequently discussed Nellis' performance as a production operator. They saw no improvement on Nellis' part and, as Service Web's sales volume began to increase during the period from 1977 to 1983, Nellis' deficiencies became more troubling for the company (Liberty Dep. 89, 98; Borzak Dep. 18, 51). In December 1983 Nellis was transferred to the position of estimator (Nellis Dep. 54-55, 74-75). It was the Executive Committee's consensus that moving him to estimator might relieve him of some of the pressures of his job (Borzak Dep. 53). Furthermore, Saluga — head of the estimating department and Nellis' new supervisor — was overworked, and it was hoped that Nellis could help him (Saluga Dep. 49-50). *400 Nellis had extensive experience and training as an estimator. He had been trained in that line of work at the Printing Industry of Illinois, where he received a degree (Nellis Dep. 11-14). Before working at Service Web, Nellis had been an estimator at Riley Printing Company from 1973 to 1977 (Nellis Dep. 30-32). Indeed, before that Nellis had been an estimator for over 15 years at Segerdahl Printing Company, performing work similar to the estimating Nellis did at Service Web (Nellis Dep. 37-39). Nellis considered himself qualified for the Service Web estimator position (Nellis Dep. 77). Nevertheless Nellis continued to have performance problems. Saluga delayed Nellis' first oral review from July 1984 until September 1984 because he was perplexed at why Nellis could not "catch on" to the job. Saluga then told Nellis (1) he should be doing better, (2) Saluga was unhappy with Nellis' performance and (3) Nellis' prior experience should make performance easy. Saluga asked Nellis if he had any ideas on how to improve his performance, but Nellis had none (Nellis Dep. 79-80; Nellis Dep. Ex. 2; Saluga Dep. 85-89). Nellis' difficulties forced Saluga to check each quotation prepared by Nellis every day (Saluga Dep. 54-55). In many cases either Saluga or estimator Carl Johnson would prepare the job layouts for Nellis (id. 114-18). Salespeople would not go directly to Nellis for estimates unless they were assigned to him by Saluga, because they had lost confidence in him (id. 81-82). In 1985, frustrated over Nellis' inability to perform his job as estimator adequately, Service Web created a new position specifically for Nellis. His new title was biller/estimator and, in conjunction with the change, he was moved near the accounting department and controller Seymour Lempert. Although the job was similar to Nellis' prior one, billing now became his primary responsibility. As a biller Nellis compared actual costs with estimated costs and provided information to accounting personnel, who then prepared computer invoices. Saluga remained Nellis' supervisor (Nellis Dep. 88-90, 92; Saluga Dep. 151). Nellis encountered difficulties in that job as well. He was unable to give accurate treatment to even 30% of the billing assigned to him (Saluga Dep. 138, 144). Nellis sought help on a number of assignments (id. 155). His inability to perform adequately was illustrated by his handling of the B & B account, one of Service Web's major customers. Even after Borzak repeatedly showed him how to do the work, Nellis could not grasp the assignment. Borzak expressed his exasperation over Nellis' failure to understand. Finally Borzak lost all confidence in Nellis' ability to do the job and assigned the B & B billing to a production operator (Borzak Dep. 67-72; Saluga Dep. 136, 141). Service Web's 1985 sales volume declined approximately $2 million from the preceding year. Service Web faced increasing pressure from an industry-wide slump (Borzak Dep. 20-21). Owners Borzak and Mitchell took a salary cut, six or seven bargaining unit employees were released from the bindery (Borzak Dep. 23-24), and the Executive Committee discussed other ways to make cuts, evaluating dispensable job functions and employees (id. 26-29). On November 20, 1985 the Executive Committee decided to reduce one employee from production and one from estimating (Saluga Dep. 160-61): 1. Darlene Williams' position as a production operator was abolished, and she (a 28-year-old) was offered a demotion to an open position as a switchboard operator. 2. Nellis' position of biller/estimator was also abolished (Saluga Dep. 163-66; Borzak Dep. 42). Two other employees, Mary Acker and Susan Engles, were either promoted or transferred when their positions were eliminated (D.Int.Ans. 10).[2] *401 After the decision to terminate Nellis had been made, he suffered a heart attack in December 1985. Service Web paid Nellis his full salary while he recovered, and Nellis was not terminated until June 1986 (Saluga Dep. 182, 194-96; Borzak Dep. 79). He was then 63 years old. ADEA's Principles From ADEA's very nature, the ultimate burden of a terminated employee in the protected age group (40 to 70 years old) "is to prove that he was discharged because of his age" (Oxman v. WLS-TV, 846 F.2d 448, 452 (7th Cir.1988)).[3] That does not call for proof "that age was the sole factor motivating the employer's decision, only that age was a determining factor in the sense that he would not have been fired but for the employer's motive to discriminate on the basis of age" (id.). Where (as here) a plaintiff offers no direct or circumstantial evidence that age was a determining factor in the discharge, he or she must turn to the indirect, burden-of-production-shifting method of proof originally established for Title VII cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S. Ct. 1817, 1824-26, 36 L. Ed. 2d 668 (1973), and later adapted to ADEA claims (Ayala v. Mayfair Molded Products Corp., 831 F.2d 1314, 1318 (7th Cir.1987).[4] Application of that ping-pong approach to reduction-in-force ("RIF") cases has proved troubling (Oxman, 846 F.2d at 453 (citation omitted)): Unlike the typical discharge case, an employer who terminates employees pursuant to a RIF rarely replaces the employees it let go.... An employee challenging his treatment in a RIF case, therefore, cannot satisfy the fourth element of the McDonnell Douglas prima facie proof formulation for non-RIF discharge cases — that the employer sought a replacement for him. This creates a problem, because the first three elements of the prima facie proof formulation cannot, standing alone, create a presumption of discrimination. After a false start in that respect (Matthews v. Allis-Chalmers, 769 F.2d 1215, 1217 (7th Cir.1985) (per curiam)), our Court of Appeals has recently established a new test for RIF cases in Oxman (specifically overruling Matthews). Now the prima facie case for the plaintiff in such a case requires a showing that (Oxman, 846 F.2d at 455): 1. He was within the protected age group. 2. He was performing according to his employer's legitimate expectations. 3. He was terminated. 4. Others not in the protected class were treated more favorably. Steps 2 and 3 of the original McDonnell Douglas framework — the post-prima-facie-case shifting of the burden to the employer to produce a legitimate, nondiscriminatory reason, followed by the return of the burden to the employee to offer proof that such reason is pretextual — remain unchanged by Oxman. And of course the teaching of Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 1093, 67 L. Ed. 2d 207 (1981) is that the burden of persuasion of intentional discrimination always remains on the employee. Application to Nellis As already indicated, Nellis' reliance on the indirect, burden-shifting method of proof requires that he establish a prima facie case as his first step. Service *402 Web offers a twofold response to his efforts in that respect: 1. It says Nellis has not established a prima facie case even in the lower-threshold sense applicable to a Rule 56 motion. 2. Even were that not so, there is no evidence that reasonably suggests Service Web's articulated, nondiscriminatory reasons for terminating Nellis were pretextual. As this Court has observed in such cases as Stratton v. Handy Button Machine Co., 639 F. Supp. 425, 430-31 (N.D.Ill.1986), an employee's prima facie component of demonstrating that he was performing according to the employer's "legitimate expectations" could be read broadly enough to telescope the entire analysis (and, in this case, both phases of Service Web's response) into a one-step McDonnell Douglas (or Oxman) inquiry. That possibility is well illustrated here. Thus on the prima-facie-case approach, there is no question that Nellis was within the protected age group (the first Oxman factor) and that he was terminated (the third factor). And from a perspective most favorable to Nellis, it appears a reasonable inference that at least one employee not in the protected class was treated more favorably (the fourth factor): When Darlene Williams' position as a production operator was also abolished as part of the RIF, she was offered a demotion to an open position as a switchboard operator — an option not made available to Nellis. It is thus the third Oxman factor — performance according to the employer's legitimate expectations — on which Nellis' prima facie case must hinge. And by definition those defeated expectations are the very factors that constitute Service Web's articulated, nondiscriminatory reasons for firing Nellis. As suggested a bit earlier, the same considerations thus apply at both levels of the McDonnell Douglas analysis — steps 1 and 3. There is no need to rehearse the extensive areas of dissatisfaction with Nellis' performance already detailed in the "Facts" section of this opinion. Suffice it to say that during his tenure with Service Web, Nellis had worked in three positions with decreasing levels of responsibility and difficulty. Yet Nellis proved unable to have performed any of the three jobs adequately, even though on paper he was highly qualified by experience and education for all three. Given that focus of the controversy, Nellis understandably blends the first and third steps of the McDonnell Douglas framework. This opinion will simply review his contentions without attempting to label them as going to the legitimate-expectations component of the prima facie case or, instead, to the pretextual nature of Service Web's statement of its reasons for firing Nellis: its defeated expectations. First Nellis contends Service Web has established and followed step-by-step procedures in cases of performance problems, but it did not follow those procedures with Nellis.[5] If true, that might perhaps give rise to an inference of pretext. But the contention is unsupported by evidence. All that is offered is an isolated instance in which Service Web did send one employee to a psychologist for counseling before she was terminated (Liberty Dep. 50-51). Nothing suggests any "established procedures" for dealing with problems, as contrasted with informal handling of individual employee problems on an ad hoc basis. And nothing is offered to suggest any disparate treatment of Nellis (that is, different handling under like circumstances) — indeed, Service Web explains without contradiction that the one instance of counseling was directed to the employee's job attitude, concededly not among Nellis' many problems. Nellis next argues that his substandard work performances were to be expected, given the disorganized environment in which he was required to function. In essence, he does not challenge Service Web's characterization of his performance, *403 instead attacking Service Web for what he views as an unproductive work environment. But Nellis' opinions about Service Web's efficiency and organization are irrelevant. Even if he were right (a matter on which this Court need not express an opinion), it would remain true that "ADEA is about age discrimination, not shabby or numbskull employment practices" (Zick v. Verson Allsteel Press Co., 644 F. Supp. 906, 913 (N.D.Ill.1986), aff'd mem., 819 F.2d 1143 (7th Cir.1987)). This nonissue adds nothing to the analysis of whether Service Web engaged in disparate treatment because of Nellis' age. Nellis' third contention is that Service Web imposed unreasonable expectations as to his performance as an estimator and biller/estimator. Here the short answer is that Nellis was eminently qualified both by experience and education for both jobs. Indeed, Nellis concedes that he considered himself qualified to be an estimator (Nellis Dep. 77) and that he was not discriminated against during his tenure in that job (id. 107-08). Accordingly his third argument is without merit.[6] Nellis also says Service Web did not inform Nellis what was expected of him. Not true. Borzak, Liberty and Saluga all expressed dissatisfaction with Nellis. Nothing in the record supports the notion that Nellis was unaware of Service Web's expectations. It must then be concluded that Nellis has not met his burden of showing a genuine issue of material fact on the issue of Service Web's legitimate perceptions of his inadequate performance. And it matters not whether that issue is perceived as a step 1 (prima facie case) or step 3 (absence of pretext) failure on his part in McDonnell Douglas-Oxman terms. Out of an abundance of caution, however, another issue that clearly relates only to the second and third steps of the McDonnell Douglas framework will also be examined. Service Web has articulated a legitimate, nondiscriminatory reason for Nellis' discharge: its economically motivated RIF. Here too Nellis has not met his burden of creating a material factual issue as to pretext. On that score Nellis Mem. 23 says Service Web was not in any real financial difficulty. He points to its $2,555,000 capital expenditure program and its increased depreciation expense of $393,372 (which assertedly depressed its earnings artificially) to argue that Service Web's decrease in sales volume is illusory. At best his argument is a non sequitur; at worst it is an unreasonable (and impermissible) effort to substitute his business judgment for his employer's. Depreciation is of course a legitimate expense of doing business, one directly related to the anticipated need for capital-asset replacement. And in the latter respect Saluga testified (Dep. 19) that companies in the commercial printing business must rebuild their equipment every seven years "to keep current or else you're out of business." Nellis prefers to ignore the fact that six or seven bindery employees were terminated, while at the same time owners Borzak and Mitchell took a pay cut (Borzak Dep. 23-24). Those steps were viewed by Service Web as forced by the marked decline in its net sales and net income. Nellis Mem.Ex. O confirms that: Net Sales Net Income 1984 $19,610,365 $261,946 1985 18,466,233 51,773 1986 17,526,707 41,628 Again nothing supports Nellis' contention of any fabricated disguise for age discrimination. In sum, Nellis has once more failed to create a genuine issue of material fact on the pretext question. His attempt to manipulate the numbers cannot alter the conclusion that Service Web responded to a *404 decline in net sales and income with an economically motivated RIF.[7] This case is all too typical of the phenomenon sometimes encountered in employment discrimination cases: Someone who is within a protected group (whether age, race, sex, national origin or something else) believes that an adverse employment decision has been made because of that factor, when all the objective evidence shows the action stemmed instead from the employer's legitimate dissatisfaction with the employee's job performance. Understandably the employee's self-induced perceptions of discrimination are insufficient to establish a genuine issue of fact (Hights v. International Harvester Co., 675 F. Supp. 418, 424 (N.D.Ill.1987); cf. Williams v. Williams Electronics, Inc., 856 F.2d 920, 924 (7th Cir.1988) (upholding summary judgment for employer because employee's "own self-interested assertions concerning her abilities are not in themselves sufficient to raise a genuine issue of material fact")). No evidence reasonably creates an inference that Nellis was terminated because of his age. Conclusion Nellis has failed to establish any genuine issue of material fact requiring trial. Service Web is entitled to a judgment as a matter of law. This action is dismissed with prejudice. NOTES [1] Familiar Rule 56 principles impose on the movant the burden of establishing the lack of a genuine issue of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552-53, 91 L. Ed. 2d 265 (1986)). For that purpose this Court draws all "reasonable inferences, not every conceivable inference" in the light most favorable to the nonmovant — in this case Nellis (DeValk Lincoln Mercury, Inc. v. Ford Motor Co., 811 F.2d 326, 329 (7th Cir.1987)). [2] Nellis' memorandum labels the latter two as "younger employees," but the record does not identify their ages. Although Service Web does not dispute Nellis' characterization, such unsupported assertions do not meet the Rule 56(e) requirement of admissible evidence. As it happens, it makes no difference whether those two employees fall within or without the ADEA-protected class. [3] This opinion will refer to what an ADEA plaintiff must prove, because that is the form in which the controlling cases address the requirements. It should, however, be emphasized that in the present context — involving opposition to a summary judgment motion — all Nellis must do is to advance evidence that (with reasonable inferences in his favor) creates a material factual issue, rather than to prove his case by a preponderance of the evidence. [4] Both because the McDonnell Douglas formulation is so familiar by now and because (as the following text discussion reflects) it has had to be restructured for cases like this one, it will not be repeated here in its initial form. [5] Specifically, Nellis Mem. 19 asserts Service Web employed a combination of "formal" and "informal" meetings with supervisors, coupled with employment counseling by Judy Smith (a Service Web employee) or a hired psychologist or both. [6] In this area Nellis Mem. 21 places the blame for his problems on Saluga, asserting Saluga could not delegate work and was an oppressive manager. In a sense that is a variant of Nellis' second argument and thus irrelevant. But even in substantive terms, Nellis glosses over the fact that two other employees working under Saluga—Garth Guido and Kevin Smith — were able to perform their jobs adequately. It is simply not reasonable to infer that Saluga and not Nellis himself was to blame for Nellis' poor performance. [7] Nellis Mem. 15 suggests that his alleged replacement by younger employees evidences discrimination. But that fact standing alone (as it does here) does not suffice to create an inference of discriminatory intent. Kephart v. Institute of Gas Technology, 630 F.2d 1217, 1224 (7th Cir.1980) (per curiam) approved this statement of the reason underlying that principle, taken from Langesen v. Anaconda Co., 510 F.2d 307, 313 (6th Cir.1975): It is apparent that in the usual case, absent any discriminatory intent, discharged employees will more often than not be replaced by those younger than they, for older employees are constantly moving out of the labor market, while younger ones move in.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/799059/

678 F.3d 1203 (2012) Rogelio FIGUEREO-SANCHEZ, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. No. 10-14235. United States Court of Appeals, Eleventh Circuit. May 1, 2012. *1204 Joseph P. Rockers (Court-Appointed), Goodwin Procter, LLP, Boston, MA, Robert C. Khayat, Jr., King & Spalding LLP, Atlanta, GA, Petitioner-Appellant. Karin Bethany Hoppmann, Robert E. O'Neill, Sara C. Sweeney, Tampa, FL, for Respondent-Appellee. Before CARNES, MARTIN and JORDAN, Circuit Judges. MARTIN, Circuit Judge: Rogelio Figuereo-Sanchez, a citizen of the Dominican Republic, has lived in the United States since 1972. In April 2004, he pleaded guilty to, and was sentenced to ninety-six months imprisonment for, conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(b)(1)(A)(ii)(II) and 846. Mr. Figuereo-Sanchez is now subject to deportation. *1205 See Figuereo-Sanchez v. U.S. Att'y Gen., 382 Fed.Appx. 211, 212 (3d Cir.2010) (denying petition for review of BIA final order to deport Mr. Figuereo-Sanchez). Here he appeals the District Court's denial of his motion for federal habeas post-conviction relief. In October 2005, following his conviction, Mr. Figuereo-Sanchez filed a pro se "Motion for Transcripts in Order to Prepare for a Motion Under 28 U.S.C. § 2255." The District Court denied that motion without explanation. Several months later, in May 2006, Mr. Figuereo-Sanchez filed a document entitled, "Supplement Pursuant to Federal Rules of Civil Procedures Rule 15(a), to Movants [sic] Title 28 United States Code, Section 2255 Filing." In this filing, he claimed ineffective assistance of counsel stemming from his lawyer's failure to consult with him regarding his right to appeal. He also reiterated his request for transcripts, and asked for sixty days to prepare a Certificate of Appealability should the District Court deny his motion. The District Court never ruled on this May 2006 motion. In July 2008, Mr. Figuereo-Sanchez, still proceeding pro se, filed a "Motion to Vacate Judgment Pursuant to Rule 60(b)(6)." In this Rule 60(b) motion, he restated his claim for ineffective assistance of counsel based on his trial counsel's failure to appeal the conviction, and added that his guilty plea was not knowingly or intelligently made. Among other forms of relief, Mr. Figuereo-Sanchez requested a new trial, or in the alternative, that the District Court treat his earlier transcript request as a § 2255 petition. On July 31, 2008, the District Court construed the Rule 60(b) motion as a motion to vacate under 28 U.S.C. § 2255. It then denied the motion as time-barred, because more than one year had elapsed since the time that Mr. Figuereo-Sanchez's judgment became final in late 2004. See 28 U.S.C. § 2255(f)(1).[1] Two years later, Mr. Figuereo-Sanchez filed a § 2255 motion before the same judge in a new proceeding, seeking to vacate his sentence. In it, he asserted that his trial counsel failed to inform him of the risk of deportation if he pleaded guilty, and alleged that the failure violated Padilla v. Kentucky, ___ U.S. ___, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), which requires counsel to inform defendants of the risk of deportation in guilty pleas. He requested that the District Court vacate his guilty plea and sentence. The District Court dismissed the § 2255 motion for lack of jurisdiction, noting that it had construed the July 2008 Rule 60(b)(6) motion as a § 2255 motion. This being the case, the Court determined that the motion before it was a successive § 2255 motion, which required authorization from the Eleventh Circuit under 28 U.S.C. § 2244(b)(3)(A) before it could be filed in the lower court. Mr. Figuereo-Sanchez asked the District Court to reconsider its decision, arguing that the Court had failed to comply with the dictates of Castro v. United States, 540 U.S. 375, 124 S.Ct. 786, 157 L.Ed.2d 778 (2003). Specifically, he alleged that the District Court had failed to provide him with notice before construing his Rule 60(b)(6) motion as a § 2255 motion. The District Court denied the motion to reconsider, noting that although it construed the Rule 60(b) motion as a § 2255 petition without issuing Castro warnings, that recharacterization was "exactly what Plaintiff requested the Court to *1206 do in the opening paragraph of his motion as an alternative means of seeking relief. Thus, Plaintiff can hardly complain that this Court failed to follow the dictates of Castro. . . ." Further, the Court stated that the ineffective assistance of counsel claim failed on the merits, because Mr. Figuereo-Sanchez's conviction became final before Padilla was decided, and Padilla did not announce a rule that should apply retroactively on collateral review. This Court granted a Certificate of Appealability on whether the District Court properly denied the § 2255 motion as successive, and whether Padilla announces a retroactively applicable new rule of law. I. We first consider whether the District Court erred in denying Mr. Figuereo-Sanchez's § 2255 motion as successive, when it had previously construed his Rule 60(b) motion as a § 2255 petition without issuing Castro warnings, reviewing the issue de novo. See Gooden v. United States, 627 F.3d 846, 847 n. 2 (11th Cir.2010).[2] The Supreme Court held in Castro that when a district court recharacterizes a pro se motion as a § 2255 habeas petition, it must: 1) notify the litigant of the pending recharacterization; 2) warn the litigant that the recharacterization will subject any subsequent § 2255 motion to restrictions; and 3) provide the litigant an opportunity to withdraw the motion or amend it to include all available § 2255 claims. 540 U.S. at 383, 124 S.Ct. at 792. If a district court fails to issue these warnings, it cannot later consider the recharacterized motion as a previously filed § 2255 motion. Id. We have interpreted the rule in Castro to be "categorical and mandatory," and therefore not subject to exception. Gooden, 627 F.3d at 848-49 (citing United States v. Blackstock, 513 F.3d 128, 132 (4th Cir.2008)). Therefore, the only question before us is whether the District Court recharacterized Mr. Figuereo-Sanchez's July 2008 Rule 60(b) motion within the meaning of Castro. The government argues that the District Court "fairly read" Mr. Figuereo-Sanchez's Rule 60(b) motion as a request to construe it as an initial § 2255 petition. It further argues that, even if Mr. Figuereo-Sanchez had not actually intended to recharacterize his Rule 60(b) motion, he had repeatedly requested that the District Court allow him to challenge his sentence under § 2255. Therefore, the District Court was entitled to recharacterize the Rule 60(b) motion without issuing Castro warnings. Mr. Figuereo-Sanchez responds that the request for recharacterization in his Rule 60(b) filing only referred to his earlier transcript requests, and the District Court never recharacterized those filings. As to the government's assertion that the District Court could have "fairly read" the Rule 60(b) motion as a request to recharacterize the filing under § 2255, we note that the passage from the July 2008 Rule 60(b) motion that the government cites is ambiguous at best.[3] This ambiguity only underscores the importance of issuing Castro warnings to pro se litigants. *1207 As the Supreme Court explained in Castro, "the very point of the warning is to help the pro se litigant understand not only (1) whether he should withdraw or amend his motion, but also (2) whether he should contest the recharacterization, say, on appeal." 540 U.S. at 384, 124 S.Ct. at 793. Thus, Castro warnings would have provided Mr. Figuereo-Sanchez an opportunity to contest the recharacterization, or proceed under § 2255, thereby resolving any ambiguity about the nature of his request. Further, if we were to construe this ambiguity against Mr. Figuereo-Sanchez, it would undermine the mandate to construe pro se filings liberally, in favor of the pro se litigant. See Stewart, 646 F.3d at 857 n. 1. Finally, although Mr. Figuereo-Sanchez expressed a clear desire to challenge his conviction under § 2255 in his earlier transcript requests, those filings have no bearing on whether the District Court recharacterized the July 2008 Rule 60(b) motion. To the extent that Castro warnings are categorical and mandatory, the previously expressed intent of a pro se litigant to challenge his conviction under § 2255 does not absolve the District Court of the obligation to issue Castro warnings in the event that it recharacterizes any current filing as a § 2255 motion. We therefore hold that the District Court failed to comply with Castro when it recharacterized Mr. Figuereo-Sanchez's Rule 60(b) motion as a § 2255 motion. As a result, his July 2010 motion for federal habeas relief cannot be treated as a second or successive § 2255 filing. II. Having concluded that Mr. Figuereo-Sanchez's July 2010 § 2255 motion is a first petition under Castro, we must now consider whether he may benefit from the Supreme Court's recent decision in Padilla v. Kentucky, ___ U.S. ___, 130 S.Ct. 1473, 176 L.Ed.2d 284. Typically, federal habeas petitioners have one year from when their conviction becomes final to seek § 2255 relief in district courts. See 28 U.S.C. § 2255(f)(1). However, § 2255 grants an additional one year for petitioners to file a § 2255 motion from "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." Id. § 2255(f)(3). We have previously held that a court other than the Supreme Court may determine retroactivity under § 2255(f)(3). Dodd v. United States, 365 F.3d 1273, 1278, 1280-81 (11th Cir.2004). In deciding retroactivity issues under § 2255(f)(3), we have applied the rubric developed in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). See Howard v. United States, 374 F.3d 1068, 1073-74 (11th Cir.2004). Therefore, we now apply that rubric in analyzing whether Mr. Figuereo-Sanchez's July 2010 motion was timely under § 2255(f)(3). Under Teague, a court must first answer whether the Supreme Court decision in question announced a new rule.[4] 489 U.S. at 300, 109 *1208 S.Ct. at 1070. If yes, a court must then determine whether that new rule satisfies an exception to the general prohibition against the retroactive application of new rules on collateral review. See id. at 305-310, 109 S.Ct. at 1073-75. Teague recognizes two exceptions: 1) new rules that place certain kinds of primary conduct beyond the reach of criminal law; and 2) decisions that announce "watershed rules of criminal procedure." Id. at 311-12, 109 S.Ct. at 1076. On appeal, both Mr. Figuereo-Sanchez and the government agree that Padilla announced a new rule of constitutional law.[5] Therefore, we need not decide whether Padilla announced a new right, or merely clarified an existing rule of constitutional law. For this case, we will assume, but not decide, that Padilla announced a new right. The parties here debate only whether Padilla announces a "watershed" rule of criminal procedure. The Supreme Court has explained that in order to qualify as a watershed rule, a decision must satisfy two requirements. First, it must "alter our understanding of the bedrock procedural elements essential to the fairness of the proceeding." Whorton v. Bockting, 549 U.S. 406, 418, 127 S.Ct. 1173, 1182, 167 L.Ed.2d 1 (2007) (quotation marks omitted). Second, it must announce a rule "without which the likelihood of an accurate conviction is seriously diminished." Schriro v. Summerlin, 542 U.S. 348, 352, 124 S.Ct. 2519, 2523, 159 L.Ed.2d 442 (2004) (quotation marks omitted). The Supreme Court has repeatedly referred to the Sixth Amendment right to counsel embodied in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) as the touchstone of what constitutes a watershed procedural rule. See Beard v. Banks, 542 U.S. 406, 407, 124 S.Ct. 2504, 2514, 159 L.Ed.2d 494 (2004); Howard, 374 F.3d at 1080 ("The exception that proves the exception . . . is a new Gideon-related rule."). It is clear that Padilla did not alter any bedrock elements of criminal proceedings. In Padilla v. Kentucky, the Supreme Court applied Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) to hold that, based on prevailing professional norms, a defense counsel's failure to advise a defendant of the risk of deportation following a guilty plea in a criminal case constituted constitutionally deficient representation. 130 S.Ct. at 1482-84. Thus, we cannot say that Padilla has altered our understanding of bedrock procedural elements, see Whorton, 549 U.S. at 418, 127 S.Ct. at 1182, given that the Court merely defined the contours of deficient and effective representation under Strickland. Neither can we agree with Mr. Figuereo-Sanchez that deficient representation under Padilla would result in "an impermissibly large risk of an inaccurate conviction" for the purposes of retroactivity. Id. (quotation marks omitted). There is little doubt that ineffective assistance of counsel may affect the accuracy and fairness of a conviction. See Strickland, 466 U.S. at 686, 104 S.Ct. at 2064 (noting that ineffective assistance of counsel may "so undermine[] *1209 the . . . adversarial process that the trial cannot be relied on as having produced a just result"). However, it is "not enough under Teague to say that [the] rule. . . . is directed toward the enhancement of reliability and accuracy in some sense." Sawyer v. Smith, 497 U.S. 227, 242-43, 110 S.Ct. 2822, 2831-32, 111 L.Ed.2d 193 (1990). In Strickland, the Supreme Court distinguished the impact of deprivation of counsel from the impact of ineffective assistance of counsel with regard to the accuracy of criminal proceedings. 466 U.S. at 692, 104 S.Ct. at 2067. The Court explained that deprivation of counsel renders it "so likely" that the adversarial process has been undermined "that case-by-case inquiry into prejudice is not worth the cost." Id. In other words, deprivation of counsel under Gideon and its progeny creates a presumption of an "impermissibly large risk" of inaccuracy in the outcome. See Whorton, 549 U.S. at 418, 127 S.Ct. at 1182. By contrast, the Court in Strickland refused to extend that same presumption to typical ineffective assistance of counsel claims. 466 U.S. at 693, 104 S.Ct. at 2067. To the contrary, the Court required the petitioner to demonstrate "a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695, 104 S.Ct. at 2068-69. Thus, we cannot say that ineffective assistance of counsel under Strickland is on par with deprivation of counsel under Gideon in terms of its presumed effect on the accuracy of the proceedings. As for Padilla, we acknowledge that a guilty plea as a result of ineffective assistance of counsel may result in an inaccurate conviction. See Stano v. Dugger, 921 F.2d 1125, 1141 (11th Cir.1991) ("[A] guilty plea is equivalent to a conviction. . . ."). However, even after demonstrating constitutionally deficient representation under Padilla, a petitioner must still prove prejudice under Strickland. Padilla, 130 S.Ct. at 1483-84. In order to show prejudice, a petitioner "must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985); Stano, 921 F.2d at 1149. This stands in stark contrast to the presumption under Gideon that deprivation of counsel renders "the risk of an unreliable [conviction] intolerably high." Whorton, 549 U.S. at 419, 127 S.Ct. at 1182; see also Howard, 374 F.3d at 1078. With this precedent in mind, we conclude that Padilla did not announce a watershed rule of criminal procedure. As a result, Mr. Figuereo-Sanchez's petition for federal habeas corpus is untimely under § 2255. III. For the reasons stated, we hold that the District Court failed to issue Castro warnings when it recharacterized Mr. Figuereo-Sanchez's July 2008 motion as a § 2255 petition. However, we affirm the District Court on the ground that Mr. Figuereo-Sanchez's July 2010 petition for post-conviction relief was untimely under § 2255. AFFIRMED. NOTES [1] Both the District Court and the Eleventh Circuit denied Mr. Figuereo-Sanchez's applications for a Certificate of Appealability. In so doing, this Court construed the Rule 60(b) motion as a § 2255 motion. [2] The government argues that this Court should review "only for clear error the district court's determinative factual finding[] that Figuereo-Sanchez asked for the court to construe" his July 2008 Rule 60(b) motion as a § 2255 motion. However, the district court's decision is not based on findings of fact, but on a characterization of the pleadings. Cf. Horsley v. Rivera, 292 F.3d 695, 700 (11th Cir.2002). [3] In his July 2008 Rule 60(b) motion, Mr. Figuereo-Sanchez requested that the District Court "construe this motion as a motion to r[e]call the Courts [sic] mandate on November 8th, 2005 denying the motion listed at docket entry #85 [transcript request] and construing this action as petitioner's first filing under [§ 2255] as petitioner requested with the motion . . . at #89 [supplement to transcript request]." It is unclear whether he was asking the District Court to recall its November 2005 order denying the transcript request and construe that request as a § 2255 petition; or whether he was asking the District Court to recall its November 2005 order denying the transcript request, and construe the July 2008 Rule 60(b) motion as a § 2255 petition. The awkwardly worded passage lends itself to either interpretation. [4] If the decision merely clarifies an old rule, see, e.g., Williams v. Taylor, 529 U.S. 362, 392, 120 S.Ct. 1495, 1512, 146 L.Ed.2d 389 (2000) ("[I]t can hardly be said that recognizing the right to effective counsel breaks new ground or imposes a new obligation on the states.") (quotation marks omitted), then the decision applies retroactively. However, under such circumstances the petitioner will not be able to take advantage of the extended statute of limitations under § 2255, which requires a newly recognized right by the Supreme Court. 28 U.S.C. § 2255(f)(3). [5] Although this position requires Mr. Figuereo-Sanchez to convince this Court that Padilla is a watershed rule of criminal procedure, it also gives him a chance to avoid the time bar of § 2255(f)(1). See 28 U.S.C. § 2255(f)(1), (3).

01-03-2023

05-01-2012

https://www.courtlistener.com/api/rest/v3/opinions/2348861/

(2008) David DeBIASI, Plaintiff, v. CHARTER COUNTY OF WAYNE, et al., Defendants. No. 02-CV-71956-DT. United States District Court, E.D. Michigan, Southern Division. March 11, 2008. OPINION AND ORDER REGARDING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT GERALD E. ROSEN, District Judge. I. INTRODUCTION This is a reverse race and sex discrimination action brought by a former Wayne County Sheriffs Department Lieutenant against his former employer, the Charter County of Wayne, Michigan; the former Wayne County Sheriff, Robert Ficano; and the County's Personnel Director, Mark Ulicny. The case is presently before the Court on Defendants' Renewed Motion for Summary Judgment. After initial briefing and status conference discussions with counsel, the Court directed supplemental briefing. The parties have complied with the Court's directives and, accordingly, have filed supplemental briefs. Having reviewed and considered the parties' briefs and supporting evidence, the Court has determined that oral argument is not necessary. Therefore, pursuant to Eastern District of Michigan Local Rule 7.1(e)(2), Defendants' Motion will be decided on the briefs. This Opinion and Order sets forth the Court's rifling. II. PERTINENT FACTS Plaintiff David DeBiasi is former member of the Wayne County Sheriffs Department. After receiving his B.A. Degree from Michigan State University in 1977, DeBiasi began his employment with Wayne County in May 1979 as a police officer with the Detroit Metropolitan Wayne County Airport Police Department. He became a member of the Wayne County Sheriffs Department in 1984 when the Airport Police Department was merged into the Sheriffs Department. During his career with the Sheriffs Department, DeBiasi participated in a number of special task forces and assignments, and received promotions to Sergeant, Lieutenant: and Executive Lieutenant. In February 1985, at his request, DeBiasi was transferred to the Drug Enforcement Administration's Joint Task Force where he worked as an undercover narcotics officer. Then, in 1988, he was promoted to Sergeant. After spending two months in the Internal Affairs Unit, DeBiasi returned to the Narcotics Unit, and in January 1989, he was appointed as the commanding officer of the Metropolitan Narcotics Task Force. In March of 1992, DeBiasi became a member of the ATF Joint Task Force. He was promoted to Lieutenant in 1993 and to Executive Lieutenant in 2000. As Executive Lieutenant, DeBiasi was in charge of the day-to-day operations of all of the narcotics and undercover units within the Sheriffs Department, including the various federal-state drug enforcement task forces. On January 16, 2002, a notice was posted that the Wayne County Personnel/Human Resources Department was accepting letters of interest from Sheriffs Department lieutenants interested in being considered for a promotion to Commander. The only requirement to apply for this promotion was that the applicant have 18 months seniority-in-grade as a lieutenant. DeBiasi, who is white, and 15 other applicants applied for the promotion. The racial and sexual composition of the applicant pool was as follows: 11 white males, one white female, two African-American males, and two African-American females. It is undisputed that each of the applicants met the 18-months-in-grade requirement. The Collective Bargaining Agreement between Wayne County and Plaintiffs Union, Wayne County Law Enforcement Supervisory Local 3317 (the "CBA") further provided that eligibility for promotion would be evaluated by the County Personnel Director and the Sheriff based upon the applicant's work record, education and experience. See CBA § 22.15. Defendant Robert Ficano, then the Wayne County Sheriff, interviewed the applicants for Commander on February 18 and 25, 2002. On March 4, 2002, Ficano announced his decision — he awarded the promotion to Lieutenant Pamela McClain, a black female. Ms. McClain earned a Bachelor of Arts Degree from the University of Michigan in 1980 and a Juris Doctorate from the University of Detroit-Mercy Law School in 1995. She joined the Wayne County Sheriffs Department in 1984. During her tenure within the Department, Ms. McClain worked in a number of units including the Wayne County Jail Master Control Unit, Frank Murphy Hall of Justice Security Unit, and the Wayne-Macomb Auto Theft Task Force. She earned the rank of Detective in 1990 and was then assigned first, to the Enforcement Unit of the Friend of the Court, and then to the Internal Affairs Section. In November 1990, she was promoted to the rank of Sergeant and was assigned to the Jail Division where she was responsible for the training, evaluation and supervision of sworn and non-sworn police officers as well as the supervision of over 1200 inmates. In 1991, she transferred to the Internal Affairs Section. She was promoted to Lieutenant in 1996. In 1999, she was promoted to Executive Lieutenant and became the Administrative Lieutenant to the Divisional Commander at the Wayne. County Jail. In May 2001, McClain transferred to the Civil Process/Felony Warrants Section of the Friend of the Court Enforcement Unit and then, in August of that same year, was assigned to the Sheriffs Department Executive Operations Unit. It was from her Executive Operations Unit position that Ms. McClain was promoted to Commander. Plaintiff does not dispute that Ms. McClain was qualified for promotion to Commander. However, he maintains that McClain got the promotion instead of him because she is a black female. Prior to the posting of the Commander's opening, Plaintiff exchanged e-mails with one of his superior officers, Chief Eric Smith. In these e-mails, Chief Smith expressed the opinion that he believed that Defendant Ficano was going to promote Ms. McClain because she was a black female and Defendant Ficano did not have any black female commanders. [See Plaintiff s Ex. 8.][1] Defendant Ficano was acting as Sheriff during the entire promotion process but was commencing a political campaign for the upcoming election of County Executive. Plaintiff contends that McClain was promoted in order to ensure that Defendant Ficano could win over the black votes during the election. While Chief Smith told Plaintiff in one e-mail that Plaintiff was his candidate for the commander's position, Chief Smith acknowledged that he had no power in influencing the Sheriffs decision and also informed Plaintiff that Undersheriff Watts was supporting a different candidate. Plaintiff also claims to have had a telephone conversation with Chief Smith in which Smith allegedly confirmed Plaintiffs suspicions concerning McClain's impending promotion to commander. Plaintiff claims that Smith told him on January 8, 2002 that he had had a conversation with Defendant Ficano in which Ficano told Smith that "he [Ficano] was going to promote McClain because he needs a B/F [black female] for the Detroit votes. The Chief [Smith] said had it not been an election year I [Plaintiff] would have been promoted." [Plaintiffs Ex. 9, p. 17.][2] Chief Smith, however, testified in his deposition that he "never had that conversation with the sheriff' and that he never made any such comments to Plaintiff. [Smith Dep., p. 29.] As indicated above, in this action, Plaintiff is suing three defendants: Wayne County; former Wayne County Sheriff Robert Ficano; and Mark Ulicny, Personnel. Director of Wayne County. In his Five-Count Amended Complaint, Plaintiff alleges that in failing to promote him, Defendants engaged in reverse race and sex discrimination in violation of 42 U.S.C. § 1983 (Count I), Title VII of the Civil Rights Act of 1964, as amended. (Counts II and III); and the Michigan Elliott-Larsen Civil Rights Act (Counts IV and V). III. DISCUSSION A. STANDARDS APPLICABLE TO MOTIONS FOR SUMMARY JUDGMENT Summary judgment is proper "`if the pleadings, depositions, answer to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Fed. R.Civ.P. 56(c). Three 1986. Supreme Court cases — Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) — ushered in a "new era" in the standards of review for a summary judgment motion. These cases, in the aggregate, lowered the movant's burden on a summary judgment motion.[3] According to the Celotex Court, In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof. Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. After reviewing the above trilogy, the Sixth Circuit established a series of principles to be applied to motions for summary judgment. They are summarized as follows: * The movant must meet the initial burden of showing "the absence of a genuine issue of material fact" as to an essential element of the non-movant's case. This burden may be met by pointing out to the court that the respondent, having had sufficient opportunity for discovery, has no evidence to support an essential element of his or her case. * The respondent cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must "present affirmative evidence in order to defeat a properly supported motion for summary judgment." * The trial court no longer has the duty to search the entire record to establish that it is bereft of a genuine issue of material fact. * The trial court has more discretion than in the "old era" in evaluating the respondent's evidence. The respondent must "do more than simply show that there is some metaphysical doubt as to the material facts." Further, "[w]here the record taken as a whole could not lead a rational trier of fact to find" for the respondent, the motion should be granted. The trial court has at least some discretion to determine whether the respondent's claim is plausible. Betkerur v. Aultman Hospital Association, 78 F.3d 1079, 1087 (6th Cir.1996). See also, Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir.1989). The Court will apply the foregoing standards in deciding Defendants' Motion for Summary Judgment in this case. B. PLAINTIFF'S TITLE VII CLAIMS AGAINST INDIVIDUAL DEFENDANTS FICANO AND ULICNY WILL BE DISMISSED As an initial matter, although not addressed by the parties, the Court finds that Defendants Ficano and Ulicny cannot be held individually liable under Title VII. In Wathen v. General Elec. Co., 115 F.3d 400, 405 (6th Cir.1997), the Sixth Circuit held "[A]n individual employee/supervisor, who does not otherwise qualify as an `employer,' may not be held personally liable under Title VII." Based upon an examination of the statutory scheme and remedial provisions of Title VII, the Wathen court concluded that Congress did not intend to provide for individual employee/supervisor liability under the federal statute. Rather, the court determined that the term "agent" was included in the statutory language merely "to incorporate respondent superior liability into the statute." 115 F.3d at 406. Therefore, Plaintiffs' Title VII claims against Defendants Ficano and Ulicny will be dismissed.[4] C. PRIMA FACIE PROOF OF DISCRIMINATION It is well-established that the burden is on an employment discrimination plaintiff — under both federal and Michigan law — to establish a prima facie case of discrimination. See Lautermilch v. Findlay City Schools, 314 F.3d 271, 275 (6th Cir.2003), cert. denied, 540 U.S. 813, 124 S.Ct. 63, 157 L.Ed.2d 27 (2003); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct, 1089, 67 L.Ed.2d 207 (1981); Carden v. General Motors, 156 Mich.App. 202, 210, 401 N.W.2d 273 (1986), app. denied, 428 Mich. 891, 403 N.W.2d 811 (1987). A Title VII plaintiff may establish a prima facie case of discrimination either by presenting direct evidence of intentional discrimination by the defendant, Terbovitz v. Fiscal Court, 825 F.2d 111, 114-15 (6th Cir.1987) (citing Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 621-22, 83 L.Ed.2d 523 (1985)), or by showing the existence of circumstantial evidence which creates an inference of discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. See Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1246 (6th Cir.1995).[5] Similarly, an employment discrimination plaintiff can establish his claim of unlawful discrimination under Michigan law either (1) by producing direct evidence of discrimination or (2) by presenting a prima facie case of discrimination in accordance with the McDonnell Douglas/Burdine framework. Hazle v. Ford Motor Co., 464 Mich. 456, 462-63, 628 N.W.2d 515, 520-21 (2001); Town v. Michigan Bell Telephone Co., 455 Mich. 688, 694-95, 568 N.W.2d 64, 67-68 (1997). Plaintiff here contends that he can make out his claim of discrimination under both theories. a. Plaintiff Has Failed to Produce Direct Evidence of Reverse Race or Sex Discrimination A plaintiff may establish intentional discrimination on the part of his or her employer by presenting credible, direct evidence of discriminatory intent on the part of the decision-maker. See Terbovitz v. Fiscal Court of Adair County, 825 F.2d at 114-15; Hazle v. Ford Motor Co., 464 Mich. at 462-63, 628 N.W.2d at 520-21. "Direct evidence" of discrimination is "evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer's actions." See Talley, 61 F.3d at 1248; Hazle v. Ford Motor Co., 464 Mich. at 462, 628 N.W.2d at 520 (quoting Jacklyn v. Schering-Plough Healthcare Products Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999)). When a plaintiff can cite direct evidence of discrimination, the McDonnell Douglas/Burdine shifting burdens of proof are not applicable. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985); DeBrow v. Century 21 Great Lakes, Inc., 463 Mich. 534, 539, 620 N.W.2d 836, 838 (2001). The presentation of direct evidence is generally sufficient to submit the plaintiff's case to the jury. Harrison v. Olde Financial Corp., 225 Mich.App. 601, 610, 572 N.W.2d 679 (1997). However, to withstand summary judgment, the plaintiffs evidence must be admissible. Fed.R.Civ.P. 56(e). Inadmissible hearsay evidence cannot be considered. Hartsel v. Keys, 87 F.3d 795, 803 (6th Cir.1996), cert. denied, 519 U.S. 1055, 117 S.Ct. 683, 136 L.Ed.2d 608 (1997); Jacklyn v. Schering-Plough Healthcare Prod. Sales Corp., 176. F.3d 921, 927 (6th Cir.1999). Plaintiff in this case relies upon his personal log notes reflecting a telephone conversation he claims to have had with Chief Eric Smith on January 8, 2002 as "direct evidence" of reverse race and sex discrimination. Plaintiff wrote in his log that Smith told him on January 8, 2002 that he had had a conversation with Defendant Ficano the previous Friday in which Ficano allegedly told Smith that "he [Ficano] was going to promote McClain because he needs a B/F [black female] for the Detroit votes. The Chief [Smith] said had it not been an election year I [Plaintiff] would have been promoted." [See Plaintiffs Ex. 9, p. 4.] As indicated above, Smith categorically denies having had any such conversation with Plaintiff and denies having made the statements attributed to him. [Smith Dep., p. 29.] First of all, statements of persons who were not involved in the employment decision at issue do not constitute "direct evidence" of discrimination. Carter v. University of Toledo, 349 F.3d 269, 273 (6th Cir.2003). In Carter, the Sixth Circuit held that a university provost's statements that the dean of the plaintiffs department was racist did not constitute direct evidence of race discrimination since the vice provost played no part in the decision to terminate the plaintiff's employment. Similarly, in this case, Chief Smith was not involved in the decision to promote Pam McClain to the commander's position. [See Smith Dep., pp. 10, 23, 58-60.] Smith testified that he was not involved in the posting of the position, he was not involved in the interview process, and he was not involved in assisting the sheriff in developing selection criteria. Id. p. 10. Smith further testified that the sheriff never asked him for his preference of candidates and never solicited any input whatsoever from him concerning the position. Id. p. 23. He explained that several years earlier, he disagreed with the sheriff relative to a commander the sheriff appointed and was told quite bluntly by the sheriff that it was his [the sheriffs] selection. Id. pp. 59-60. Since then he was no longer "in the loop." Id. Pursuant to Carter, because he was not involved in the decision to promote Pam McClain, Smith's statements cannot constitute "direct evidence" of discrimination. The decision maker in this case was Defendant Ficano. Thus, statements made by him can constitute direct evidence. However, the statement by Ficano that Plaintiff seeks to rely upon — that he was going to promote Pam McClain because he needed to hire a black female to curry favor with Detroit voters — is buried beneath several layers of hearsay.[6] Picano allegedly made the statement to Chief Smith, who allegedly related it to DeBiasi, who recorded what Smith allegedly told him in his log. Evidence containing multiple levels of hearsay is inadmissible for its truth unless each layer, analyzed independently falls within an established hearsay exception or is treated as nonhearsay. Fed.R.Evid. 805; Moore v. KUKA Welding Sys. & Robot Corp., 171 F.3d 1073, 1081 (6th Cir.1999). Defendants argue that Plaintiffs log cannot be considered because it is inadmissible hearsay. As indicated above, inadmissible hearsay evidence cannot be considered on summary judgment. Jacklyn, supra. However, at the summary judgment stage, the focus is not on the admissibility of the evidence's form. Celotex v. Catrett, supra, 477 U.S. at 324, 106 S.Ct. at 2553 (explaining that in requiring the nonmoving party to produce evidence to withstand a motion for summary judgment, "[w]e do not mean that the nonmoving party must produce evidence in a form that would be admissible at trial"); see also Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir.2003), cert. denied, 541 U.S. 937, 124 S.Ct. 1663, 158 L.Ed.2d 358 (2004) ("At the summary judgment stage we do not focus on the admissibility of the evidence's form.") The majority of circuits interpret Celotex to permit consideration of evidence submitted at summary judgment in nonadmissible form when the evidence "will be reduced to admissible form at trial." McMillian v. Johnson, 88 F.3d 1573, 1584 (11th Cir.1996) (allowing otherwise admissible evidence to be submitted in inadmissible form at the summary judgment stage, though at trial it must be submitted in admissible form). See also Gleklen v. Democratic Cong. Campaign Comm., Inc., 199 F.3d 1365 (D.C.Cir.2000) (holding that any evidence considered by a court at the summary judgment stage "must be capable of being converted into admissible evidence." Id. at 1369); J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1542 (3rd Cir.1990), cert. denied, 499 U.S. 921, 111 S.Ct. 1313, 113 L.Ed.2d 246 (1991) (holding that hearsay evidence produced in an affidavit opposing summary judgment may be considered if ale out-of-court declarant could later present the evidence through direct testimony, i.e., in a form that would be admissible at trial); cf., Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir.1990) ("[A]bsent a Showing of ad, missibility — and none was forthcoming here — appellant may not rely on rank hearsay . . . to oppose proper motions for summary judgment.") Thus, the Court need not decide whether DeBiasi's log itself is admissible. Instead the focus is on the admissibility of its contents. Id. If the contents of DeBiasi's log could be presented in an admissible form at trial, the Court may consider the log's contents in deciding Defendants' summary judgment motion. Fraser v. Goodale, supra, 342 F.3d at 1037. In Fraser, the plaintiff relied upon her diary in opposing her employer's motion for summary judgment on her ADA claim. This diary detailed the effects that her diabetes had on her daily life. The defendant argued that the diary was hearsay evidence, and, therefore, could not be considered by the court. The Ninth Circuit disagreed. "It would be sufficient if the contents of the diary are admissible, even if the diary itself is inadmissible." 342 F.3d at 1036. The court then examined the contents of the diary and found: The contents of the diary are mere recitations of events within Fraser's personal knowledge and, depending on the circumstances, could be admitted into evidence at trial in a variety of ways. Fraser could testify to all the relevant portions of the diary from her personal knowledge. Fed.R.Evid. 602. If she forgets the exact dates or the details of the events, she may be able to use the diary to refresh her recollection. Fed. R.Evid. 612. . .. If the diary fails to refresh her recollection, she might still be able to read the diary into evidence as a recorded recollection under Fed. R.Evid. 803(5). Because the diary's contents could be presented in an admissible form at trial we may consider the diary's contents in the Bank's summary judgment motion. Id. at 1037. Similarly, in J.F. Feeser, Inc. v. Serv-A-Portion, Inc., the Third Circuit determined that the district court erred in refusing to consider the affidavit of one of the defendant's competitors in which he stated that his salespeople complained to him about losing sales because of defendant's discriminatory pricing. The court explained: In Williams v. Borough of West Chester, 891 F.2d 458 (3d Cir.1989), we noted that Fed.R.Civ.P. 56(e) requires the production, at the summary judgment stage, of evidence "`as would be admissible at trial' . . . and thus `reduc[ible] to admissible evidence.'" Id. at 466 n. 12. We cited Celotex v. Catrett, however, in which the Supreme Court rejected the view that the non-moving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment. 477 U.S. at 324, 106 S.Ct. at 2553. We thus concluded that hearsay evidence produced in an affidavit opposing summary judgment may be considered if the out-of-court declarant could later present the evidence through direct testimony, i.e., in a form that "would be admissible at trial." Williams, 891 F.2d at 465-66 n. 12. Here, there is no indication that Spagnola's salesforce would be unavailable to testify at trial. The averments of Spaynola's affidavit are capable of proof through admissible evidence and we will consider them now on de novo review. 909 F.2d at 1542 (emphasis added). At issue in this case are Plaintiff's log notes of a telephone conversation Plaintiff allegedly had with Chief Smith in which Smith purportedly told Plaintiff that he had had a conversation with Defendant Ficano the previous Friday, and in that previous conversation, Ficano told Smith that he [Ficano] was going to promote McClain because he needs a black female for the Detroit votes. Plaintiffs log is clearly hearsay, but the statements in the log — that Chief Smith told DeBiasi that he had had a conversation with Sheriff Ficano in which Ficano told Smith he was going to promote McClain because he needed a black female in the upcoming election — if capable of proof through admissible evidence at trial, could be considered by the Court here. However, Smith's alleged statements are not capable of proof through admissible evidence at trial because Smith denies having had any such conversation with the Sheriff and denies having told Plaintiff that he had any, such conversation. At his deposition he was questioned at length about the matter and he testified as follows: Q: Do you recall in having a conversation with Mr. DeBiasi wherein you told him that — this is his statement — we then discussed — and here again, we're at Logbook No. 9, 1648 to 52. We then discuss, then discussed the fact — we being you and he — we discussed the fact that last Friday the sheriff said he was going to promote Pam McClain because he needed a black female for the Detroit vote. Do you recall having such a conversation with Mr. DeBiasi to that effect? A: No. Q: Are you saying you don't recall or it never happened? A: I know that there was never a conversation between myself and the sheriff [where] he indicated that to me. Those conversations were between Dave and I. Q: Okay. As I understand your question, your answer — A: Maybe I don't understand your question. Q: Sure, sure. This is David DeBiasi's handwritten notes, and — A: Referencing a conversation with me. Q: Yes. And it states we, being you and Mr. DeBiasi, then discussed the fact that last Friday, the sheriff said he was going to promote Pam McClain because he needs a black female for the Detroit vote. Do you recall making such a statement or statements to that effect to Mr. DeBiasi? A: No. Q: Is it that you don't recall or you didn't make those statements? A: I didn't make that statement because I never had that conversation with the sheriff. [Smith Dep., pp. 28-29.] Thus, unlike the statements of the hearsay declarants in Feeser and Fraser who could provide first-hand testimony at trial regarding what they said in their out-of-court statements, since Smith has denied making the statements attributed to him by Plaintiff, the statements are not capable of proof at trial through his first-hand testimony. They are inadmissible hearsay statements that may not be considered by the Court in deciding Defendants' motion for summary judgment. Plaintiff argues, however, that because Chief Smith is a supervisor, his statements should be deemed nonhearsay under Fed. R.Evid. 801(d)(2)(D), thereby permitting the Court to consider the imbedded nonhearsay admission of Sheriff Ficano. In support of this argument, Plaintiff relies upon Carter v. University of Toledo, 349 F.3d 269 (6th Cir.2003). In Carter, the plaintiff, an African-American, sued her former employer, the University of Toledo, alleging that the university failed to renew her contract as a visiting professor because of her race. In opposing the defendant's motion for summary judgment, Carter offered — as both direct evidence of discrimination and circumstantial evidence of discriminatory pretext — statements allegedly made to her by Dr. Earl Murry, the Vice Provost of the University, in a telephone conversation they had while contract renewal was pending. Carter claimed that Murry told her in that telephone conversation that the college of education consisted of "a bunch of racists" and that the dean of the college of education was "trying to whitewash the faculty." (Murry denied making the statements.) Murry's duties as Vice Provost included acting as chief negotiator for the faculty's collective bargaining agreements, coordinating faculty recruiting, hiring, training, and orientation, advising the Provost on tenure and promotions, reviewing salary matters, and ensuring compliance with affirmative action requirements. Murry, however, was not the decision maker with regard to the decision not to rehire Carter as a visiting professor in the college of education. The parties disputed whether Murry's comments were admissible as nonhearsay under Fed.R.Evid. 801(d)(2)(D) as "statement(s) by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship." The university's position was that only statements made by declarants who are direct decision-makers concerning the adverse employment action at issue can qualify as nonhearsay under Rule 801(d)(2)(D). Since it was undisputed that Murry was not the decision-maker with regard to the non-renewal of Carter's contract, the university argued that his statements did not qualify as nonhearsay under the Rule and, hence, could not be considered on summary judgment.[7] The Sixth Circuit examined its prior decisions in this area of law and from that examination determined that whether a statement qualifies as nonhearsay under Rule 801(d)(2)(D) goes beyond simply determining if the declarant is a direct decision-maker with regard to the adverse employment action. Id. at 275. Rather, to determine whether a statement qualified as nonhearsay under the Rule, the Court instructed courts to examine the scope of the declarant's employment and determine whether the declarant has the ability to influence a personnel decision. Id. "Being a direct decision-maker, of course, constitutes strong proof that a statement was made within the scope of employment, but the "scope of employment" criterion extends beyond decision-makers." Id. The Court found that Murry's comments in Carter were within the scope of his employment because [a]lthough Murry did not have direct authority to decide whether Carter's appointment was renewed, his oversight of the affirmative action process at the University places his statements concerning the racial composition of the workforce within the ambit of his authority. Indeed, Murry testified that he ensures that the deans comply with affirmative action requirements when hiring faculty. 349 F.3d at 276. In the instant case, Smith's deposition testimony makes clear that Smith had no influence over the decision to promote Pam McClain to commander. As noted above, Smith testified that he was not involved in posting the commander's position, nor was he involved in the interview process or assist the sheriff in developing criteria that would be used to select the commander. [Smith Dep., p. 10]. More importantly, Smith testified that he did not have the ability to influence Sheriff Ficano as to whom he appointed to a commander's position. Id. at 59. He testified that Ficano never asked him for his preference or for any formal input as to the commander's position filled by McClain and, in fact, Ficano even appointed a commander assigned to work directly under Smith's command without any input at all from Smith. Id. at 23, 24. Smith said that at the relevant time, he was not "in the loop" because he did not work in the same physical location as the sheriff and because "the sheriff and I ha[d] disagreements . . . relative to a commander that he appointed years ago and I disagreed with it . . . and I was told quite bluntly that it's his decision. And I didn't agree with that appointment and that kind of has [had] ramifications and somewhat bitter feelings, nothing personal. But in terms of me having influence into who commanders are, it's limited. . .." Id. at 59-60. Unlike the declarant in Carter, in the present case, Smith did not have oversight of the promotion process nor has Plaintiff demonstrated that personnel decisions were within the scope of Smith's employment. There are simply no record facts from which this Court can conclude that Smith's statements fall within the scope of Fed.R.Evid. 802(d)(2)(D). The statements are inadmissible hearsay. Therefore, the Court cannot consider Smith's statements — or the imbedded statement allegedly made by Sheriff Ficano to Smith — in deciding Defendants' motion for summary judgment. DeBiasi also claims that Chief Smith and Undersheriff Watts told Lieutenant Gerard Grysko that Sheriff Ficano was going to promote Pam McClain to curry the favor of black voters in the County Executive election. In support of this claim, DeBiasi points to the deposition testimony of Lieutenant Grysko. However, DeBiasi does not claim — and Grysko did not testify — that Smith and Watts said that Sheriff Ficano told them this. The best characterization of Grysko's testimony was that this was Smith and Watts' opinion of the matter. Specifically, Grysko testified in his deposition that he had heard "rumors" from "good sources in the department" — rumors he said he first heard from Wayne Wolf or a member of Wolf's "crew" in the registry and special transportation unit and then added that he also heard them from Chief Smith and Undersheriff Watts — that Pam McClain was going to be promoted because she was a black female. See Grysko Dep., pp. 31-32. Grysko later clarified his testimony and said that after he heard this "rumor" from Wayne Wolf, he confronted Undersheriff Watts with it but that all that Watts said was that "he didn't know what I was talking about, that I was crazy." Id. at 33. In any event, Grysko admitted, however, that he never talked to, or heard this from, Sheriff Ficano: "I only know what [other] people told me." Id. Even if Plaintiff could overcome the hearsay nature of Grysko's testimony, the substance of this evidence is nothing more than rumor and opinion. It is well-settled that "direct evidence of discrimination cannot be based on rumors, conclusory allegations, or subjective beliefs." Hein v. All America Plywood Co., Inc., 232 F.3d 482, 488 (6th Cir.2000); Mitchell v. Toledo Hospital 964 F.2d 577, 582 n. 4 (6th Cir. 1992). The foregoing discussion makes clear that Plaintiff has not presented direct evidence of discrimination. Therefore, to make out a prima facie case, Plaintiff will have to satisfy the McDonnell Douglas/Burdine standards. b. Application of the McDonnell Douglas Paradigm Under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), to set forth a prima facie case of discrimination based on a failure to promote, a plaintiff must show: (1) he is a member of a protected class; (2) he applied and was qualified for promotion; (3) he was considered for and denied the promotion; and (4) other employees of similar qualifications who were not members of the protected class received promotions. Sutherland v. Michigan Dep't of Treasury, 344 F.3d 603, 614 (6th Cir.2003). In Title VII "reverse discrimination" cases where, as here, a member of the majority is claiming discrimination on the basis of race, the Sixth Circuit has held that to satisfy the first prong of the McDonnell Douglas test, the plaintiff must demonstrate "background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority." Grizzell v. City of Columbus, Div. of Police, 461 F.3d 711, 719 (6th Cir.2006); Zambetti v. Cuyahoga Cmty. College, 314 F.3d 249, 255 (6th Cir.2002) (quoting Murray v. Thistledown Racing Club, Inc., 770 F.2d 63, 67 (6th Cir.1985)); see also Sutherland, 344 F.3d at 614-15.[8] Under the fourth prong, Plaintiff must show that the he was treated differently than other similarly-situated employees who were not members of the protected class. Zambetti, supra. Once a plaintiff establishes a prima facie case of discrimination, the burden of production then shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the defendant's action. DiCarlo v. Potter, 358 F.3d 408, 414 (6th Cir.2004). If the defendant carries this burden, the plaintiff must prove that the legitimate reasons offered by the defendant were in fact a pretext for discrimination. Id. at 414-15. Defendant concedes, for purposes of this motion, that Plaintiff can establish that as a white male, he was a protected class member who was qualified for the appointment to the commander's position that was awarded to Lieutenant McClain, an African-American female. Defendant, however, argues that Plaintiff cannot establish the first and fourth prongs of the modified McDonnell Douglas framework. Defendant contends that Plaintiff cannot demonstrate background circumstances showing that Wayne County was the unusual employer that discriminated against the majority nor can he establish that he was treated differently than similarly-situated minority employees. (i) "Background Circumstances" The Sixth Circuit has not developed a bright line test for what constitutes "background circumstances" for the purpose of the first McDonnell Douglas prong in a reverse discrimination case. Therefore, the Court looks to prior decisions for guidance. In Zambetti v. Cuyahoga Community College, 314 F.3d 249 (6th Cir.2002), the court found inadequate Plaintiff's evidence that the community college police chief disregarded the Selection Advisory Committee's recommendation only the three times the plaintiff was not promoted because no evidence was presented as to how many times the committee recommended the hiring of someone with less seniority. 314 F.3d at 257. The court also determined that no inference could be drawn from the fact that the chief hired only one white person for ten to fifteen vacancies in six years because no evidence was presented concerning the racial composition of the applicant pools for those positions. Id. Nonetheless, the court found sufficient evidence to create an issue of fact as to the "background circumstances" prong because the chief was himself African-American. "This is sufficient, in our opinion, to satisfy Murray's "background circumstances" requirement." Id. The composition of the workforce and the sex of the plaintiffs supervisor were similarly held to constitute sufficient background circumstances to satisfy the first prong of the McDonnell Douglas test in Turner v. Grande Pointe Healthcare Community, 2007 WL 2601386 (N.D.Ohio Sept. 10, 2007), a reverse gender discrimination case. In Turner, the court found that the fact that the majority of the workforce and management at Grande Pointe, as well as all of the decision makers in the plaintiffs case, were females "support[s] the suspicion that the defendant is the unusual employer who discriminates against the majority." Id. at *13. The court looked to statistical evidence in Sutherland v. Michigan Dept. of Treasury, 344 F.3d 603 (6th Cir.2003). In that case, the court found that the plaintiffs presented significant evidence in the form of statistical data tending to show that in the years prior to the employment decisions at issue, the Treasury Department considered race in making employment decisions: Plaintiffs-Appellants provided a substantial amount of statistical data relating to the Treasury Department's promotion and hiring patterns over the past few decades as they relate to race. For example, Plaintiffs-Appellants point out that in 1983, blacks held 11.5% of the auditor positions in Treasury, even though blacks represented only 5.2% of the, qualified labor force in Michigan. In addition, they assert that, from 1980 through July 1989, protected class members, including racial minorities, females and disabled people, represented seventy-seven percent of all new hires in the Audit Division of Treasury. Furthermore, Plaintiffs-Appellants claim that as recently as March 2000, a roster of the audit Division indicated that protected class members held seventy-one percent of the auditor positions in the Michigan offices of the Audit Division. Specifically, the March 2000 roster indicates that black employees held twenty-nine percent of the Audit Division positions in Michigan, even though a 1990 census, the most recent census prior to the March 2000 roster, demonstrated that blacks represented only 7.7% of the qualified labor force in Michigan at that time. Based on this significant statistical evidence, we believe that Plaintiffs-Appellants at least raised a genuine issue of material fact with respect to whether background circumstances tended to show that Treasury is the "unusual employer who discriminates against the majority," 344 F.3d at 615-16. See also, Murray v. Thistledown Racing, 770 F.2d 63, 68 (6th Cir.1985) (suggesting that reverse discrimination plaintiff might have satisfied the "background circumstances" prong of the test had he been able to show that the employment practices were grounded in an affirmative action program). By contrast, in Rivette v. United States Postal Service, 625 F.Supp. 768 (E.D.Mich. 1986), the court found insufficient statistical support in the plaintiffs evidence to indicate that the Postal Service in general or administrators in its Detroit offices discriminated against white employees. The court explained: Plaintiff listed the number of black and white employees promoted to level 17 and above in all Detroit offices for the years 1978 through 1981. Those figures indicate that in 1979, an equal number of blacks and whites were promoted to level 17 or above. In 1980 and 1981, considerably more blacks were promoted at the upper levels than whites. Plaintiff has failed, however, to provide any statistics on the racial make-up of the Detroit offices as a whole. Thus, the court has no way of determining whether the increase in promotions of blacks at the upper levels was in any way disproportionate. Demographic changes over the years might well have led to an increased number of black employees at all levels working in the City of Detroit, while white employment figures within the city dwindled as they opted to work in suburban locations. 625 F.Supp. at 772. In this case, Plaintiff points to the racial and sexual composition of the pool of applicants for the position of commander during Defendant Ficano's tenure as Wayne County Sheriff and the race and sex of the individuals ultimately appointed by Sheriff Ficano. The evidence presented shows that from 1992 through 2002, there were 45 applicants[9] for 9 commander positions.[10] One of the appointments during this time period — the appointment of Lawrence Meyer, a white male, to the position of police commander in the Warrant Enforcement Division of the Community Justice Department — was made by Jeriel Heard, the head of the Community Justice Department, not Sheriff Ficano. [See Plaintiffs Supplemental Response, Ex. 8.] The remaining eight appointments to commander were made by Sheriff Ficano. The composition of the 1992-2002 applicant pool was as follows: WHITE MALES 25 55.6% BLACK MALES 13 28.9% WHITE FEMALES 5 11.1% BLACK FEMALES 2 04.4% ___ 45 Ficano's commander appointments from 1992-2002 were as follows: WHITE MALES 0 0.0% BLACK MALES 5 62.5% WHITE FEMALES 2 25.0% BLACK FEMALES 1 12.5% ___ 8 [See Plaintiffs Supplemental Response Exhibits 4 and 5.] The evidence presented by Plaintiff shows that in over ten years of discretionary appointments, Defendant Ficano never promoted a white male to a commander's position, even though white males made up over 55% of the applicant pool. Indeed, in 1996 and 1999, when Plaintiff DeBiasi was previously a candidate for promotion, white males made up nearly 70% of the applicant pool, yet Ficano promoted two black males and a white female. Id. In 2002, when Ficano promoted Pamela McClain, 60% of the candidate pool was white. Id. Again, Ficano promoted a minority candidate. Id. Although Plaintiffs percentages are based upon a relatively small statistical sample, the Sixth Circuit has noted that "even a small statistical sample . . . can nevertheless serve as circumstantial evidence making discrimination more likely." Cicero v. Borg-Warner Automotive, Inc., 280 F.3d 579, 593 (6th Cir.2002); see also Kulling v. Grinders for Industry, Inc., 115 F.Supp.2d 828, 839 (E.D.Mich.2000) (finding that, although the plaintiffs' statistical analysis was not be as probative as it might have been, it nevertheless could serve to increase the likelihood that the decisions to eliminate certain positions were based on impermissible discrimination.) In their Reply to Plaintiffs Supplemental Response, Defendants attempt to refute Plaintiffs evidence that Ficano did not promote any white males to commander with the affidavit of Carrie Skronek, the Division Director of Employment Programs for the Wayne County Department of Personnel/Human Resources who states that personnel records show that between 1990 and 1999, six white males were appointed to "high level executive positions assigned to the Wayne County Sheriff s Department." [Skronek Aff. ¶ 2.] Ms. Skronek, however, does not state that Sheriff Ficano made these appointments and no underlying records concerning these appointments have been provided. There is no evidence to show who appoint ed them; how they were appointed; why they were appointed; or to what specific positions they were appointed. Indeed, from other evidence presented in this case, it has been shown that the County Executive can make "Department Executive" or "DE" appointments. Former County Executive Edward McNamara — who was the County Executive from 1987 to 2002 made at least one Department Executive appointment when he appointed Richard Fenton as Chief of Police at the Metropolitan Detroit Airport. See footnote 10, supra; see also Plaintiffs first Response Brief, Ex. 19. Fenton's job classification, like that of the individuals named in Ms. Skronek's affidavit, was "DE5." In any event, the Court believes that the evidence presented by the parties at least raises a question of fact with respect to whether background circumstances raise the suspicion that Defendant Wayne County is the unusual employer who discriminates against the majority.[11] (ii) Similarly-Situated Candidates for Commander Position Defendants also argue that Plaintiff cannot demonstrate that he was similarly situated to Pamela McClain, the successful candidate for promotion to commander in March 2002, because they reported to different persons, had different and diverse work assignments, different educational background, and different personalities. Defendants' argument is misplaced for two reasons. First, Defendants argue that DeBiasi cannot show that he and McClain were "similarly situated in all material respects," as required under controlling Sixth Circuit law, because, prior to being considered for promotion, they reported to different supervisors. However, application of this factor in a failure to promote case is inapposite. What matters is not who supervised them prior to promotion, but whether the person who considered them for promotion was the same person. The remainder of the "differences" set forth by Defendant are also inapposite as they go to a comparison of Plaintiff's and McClain's qualifications. As this Court held in Hoffman v. Sebro Plastics, Inc., 108 F.Supp.2d 757 (E.D.Mich. 2000), it is impermissible, under controlling Sixth Circuit law, to compare the qualifications of a plaintiff and similarly-situated employees at the prima facie case stage. In Hoffman, the defendant argued that the plaintiff had not established that she and Eric Johnson, the assistant foreman who received the promotion to the midnight shift foreman position she sought, were not "similarly situated" because she had not established "that she was more qualified than Johnson" and because she worked for 5% years on the day shift while Johnson was an assistant foreman on the midnight shift. The Court held, "[T]hese are issues to be raised in rebuttal as legitimate nondiscriminatory, reasons. As the Cline court explained, `forcing plaintiffs to make such a proof at the prima facie stage defies the very purpose of the production stage and the overall sequence of McDonnell Douglas.'" 108 F.Supp.2d at 773 (quoting Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 665 (6th Cir.2000)). The test of similarly-situated in the failure to promote context is instead whether the plaintiff and the promoted person he compares himself with "both had experience which could make them viable candidates for [the position sought]." Anthony v. BTR Automotive Sealing Sys., Inc., 339 F.3d 506, 516 (6th Cir.2003). Applying this standard, it is clear that both Plaintiff DeBiasi and Pamela McClain were "viable candidates" for Commander. The relevant factors are that both DeBiasi and McClain were qualified for promotion, they were both placed on the eligibility list, and were both considered for promotion by the same person, Defendant Ficano. Accordingly, the Court finds that the "similarly-situated" element is satisfied. D. PRETEXT Having concluded that Plaintiff has raised a genuine issue of material fact with respect to his prima facie case, the Court turns to the question of whether Defendants have articulated a legitimate, non-discriminatory reason for choosing Pamela McClain over David DeBiasi for promotion to the commander's position in March 2002. The Court finds that Defendants have satisfied their burden in this regard. Defendants' proffered reason for selecting McClain over DeBiasi and the other candidates was that McClain presented the best overall qualifications. Specifically as compared to DeBiasi, Defendants point out that McClain worked in a number of different units within the Sheriffs Department over the course of her 15-year career while Plaintiff DeBiasi spent almost all of his, career in the Narcotics Unit. McClain also had a law degree; DeBiasi did not. McClain also attended more than a dozen training seminars that Plaintiff did not attend. Consequently, after reviewing the candidates' personnel files and what they had done in the department, and after personally interviewing each of them, Sheriff Ficano selected McClain for the promotion because she had the "widest breadth of experience and education." [See Ficano Dep., p. 12.] The burden of production, therefore; shifts back to Plaintiff to demonstrate by a preponderance of the evidence that the legitimate reasons offered by Defendants were in fact a pretext for discrimination. Imwalle v. Reliance Medical Prod., Inc. 515 F.3d 531 (6th Cir.2008); E.E.O.C. v. Avery Dennison Corp., 104 F.3d 858, 862 (6th Cir.1997) (citing Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1093). Plaintiff can establish pretext by demonstrating that the reasons offered by the defendant: (1) has no basis in fact; (2) did not actually motivate the decision not to promote him, or (3) was insufficient to warrant the decision not to promote him. Zambetti, 314 F.3d at 258 (citing Manzer v. Diamond Shamrock Chem. Co., 29 F.3d 1078, 1084 (6th Cir.1994)). A showing that a proffered reason had "no basis in fact" consists of evidence establishing that the proffered reasons for the employer's decision never happened, or are factually false. Manzer, 29 F.3d at 1084. To make a showing that the proffered reasons "did not actually motivate the employer's conduct," the plaintiff must present evidence "which tend[s] to prove that an illegal motivation was more likely than that offered by the defendant." Id. Finally, a showing that the proffered reasons were "insufficient to motivate the employer" consists of evidence that other employees, particularly employees not in the protected class, were not treated the same way, even though they engaged in substantially identical conduct. Manzer, 29 F.3d at 1084. According to the Manzer court, the first and third types of rebuttals — that the reason offered by the employer has no basis in fact or was insufficient to warrant the employer's decision — "are direct attacks on the credibility of the employer's proffered motivation for firing the plaintiff, and if shown, provide an evidentiary, basis for what the Supreme Court has termed a `suspicion of mendacity,'" sufficient to withstand summary judgment. Id.[12] As for the second Manzer option — that the employer's articulated reason did not actually motivate the employer's actions — the Sixth Circuit has held, If the bare bones elements of plaintiffs prima facie case were sufficient to make this showing, . . . the entire "burden shifting" analysis of McDonnell Douglas and its successors would be illusory . . .. Accordingly, we hold that, in order to make this type of rebuttal showing, the plaintiff may not rely simply upon his prima facie evidence, but must, instead, introduce additional evidence of [prohibited] discrimination. Gray v. Toshiba Am. Consumer Prods., 263 F.3d 595, 600 (6th Cir.2001) (quoting Manzer, 29 F.3d at 1084) (emphasis added). Regardless of which rebuttal method is employed, the plaintiff retains the ultimate burden of producing "sufficient evidence from which the jury could reasonably reject [the defendants'] explanation and infer that the defendants intentionally discriminated against him." Johnson v. Kroger Co., 319 F.3d 858, 866 (6th Cir.2003). Plaintiff in this case challenges Defendants' stated reason that McClain had "better qualifications" as pretextual. He claims that Defendants' reliance upon McClain's law degree is misplaced because McClain has not passed the state bar examination and has never practiced law. Plaintiff further points out that Defendants have failed to explain why a juris doctorate degree is more significant than his attendance at the FBI National Academy. The Supreme Court has stated that "qualifications evidence may suffice, at least in some circumstances, to show pretext." Ash v. Tyson Foods, Inc., 546 U.S. 454, 126 S.Ct. 1195, 1197, 163 L.Ed.2d 1053 (2006). In Bender v. Hecht's Department Stores, 455 F.3d 612, 626 (6th Cir.2006), cert. denied, ___ U.S. ___, 127 S.Ct. 2100, 167 L.Ed.2d 814 (2007), the Sixth Circuit held that the probative value of qualifications evidence in terms of demonstrating pretext must be balanced against "the principles that employers are generally `free to choose among qualified candidates,' [quoting] Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir.1987), and that `[t]he law does not require employers to make perfect decisions, nor forbid them from making decisions that others may disagree with,' [quoting] Hartsel v. Keys, 87 F.3d 795, 801 (6th Cir.1996)." Thus, "[w]hether qualifications evidence will be sufficient to raise a question of fact as to pretext will depend on whether a plaintiff presents other evidence of discrimination." Bender, 455 F.3d at 626. The court explained: In the case in which a plaintiff does provide other probative evidence of discrimination, that evidence, taken together with evidence that the plaintiff was as qualified as or better qualified than the successful applicant, might well result in the plaintiff's claim surviving summary judgment. . .. On the other hand, in the case in which there is little or no other probative evidence of discrimination, to survive summary judgment the rejected applicant's qualifications must be so significantly better than the successful applicant's qualifications that no reasonable employer would have chosen the latter applicant over the former. In negative terms, evidence that a rejected applicant was as qualified or marginally more qualified than the successful candidate is insufficient, in and of itself, to raise a genuine issue of fact that the employer's proffered legitimate, nondiscriminatory rationale was pretextual. Id. at 627 (citation omitted and emphasis added). Plaintiff here has not shown that his qualifications were "so significantly better than [McClain's] qualifications that no reasonable employer would have chosen the latter applicant over the former." Id. Construed in the light most favorable to him, Plaintiff's argument at best is that he and McClain had equal qualifications. This is not sufficient to establish pretext under Bender. Plaintiff's only other admissible pretext evidence is the same evidence that he used to make out his prima facie claim of reverse discrimination — Ficano's alleged "pattern" of not promoting white male officers to commander positions even though white males comprised the majority of the candidates for promotion. While statistical evidence may be used to establish pretext, here we do not have any true "statistical" evidence. No expert testimony nor any standard-deviation methodology has been presented. "For statistics to be valid and helpful in a discrimination case, `both the methodology and the explanatory power of the statistical analysis must be sufficient to permit an inference of discrimination'" Simpson v. Midland-Ross Corp., 823 F.2d 937, 944 (6th Cir.1987). All that has been presented in this case is evidence of a perceived numerical pattern with regard to eight discrete promotions over ten years off of six different eligibility lists presenting a combined pool of 45 candidates. However, this numerical pattern does not establish that the promotions, in general — or the promotion of McClain, in particular — were more likely than not the result of unlawful discrimination. As the court explained in Barnes v. GenCorp, Inc., 896 F.2d 1457 (6th Cir. 1990), cert. denied, 498 U.S. 878, 111 S.Ct. 211, 112 L.Ed.2d 171 (1990), when a plaintiffs statistics indicate a disproportionate discharge or hire rate for a protected group, "there are three possible explanations for the discrepancy: the operation of legitimate selection criteria, chance, or the defendant's bias." Id. at 1468 (citing D. Baldus and J. Cole, Statistical Proof of Discrimination 291 (1980) and Palmer v. Shultz, 815 F.2d 84, 90-91 (D.C.Cir.1987)). When a plaintiff demonstrates a significant statistical disparity in the discharge [or hiring] rate, he or she has provided strong evidence that chance alone is not the cause of the discharge [or hiring] pattern. The statistics do not and cannot determine whether the more likely cause is the defendant's bias or a legitimate selection criterion. Barnes at 1468-69 (emphasis added). Since Plaintiff's numerical evidence of past promotions does not establish that it was more likely than not that the cause of the perceived promotion pattern was intentional discrimination, the evidence is insufficient to establish that Defendants' proffered non-discriminatory reason for promoting Pamela McClain instead of Plaintiff was pretextual. See Barnes at 1469.[13] CONCLUSION For all of the reasons set forth above in this Opinion and Order, IT IS HEREBY ORDERED that Defendants' Motion for Summary Judgment is GRANTED. Accordingly, IT IS FURTHER ORDERED that Plaintiff's Complaint be, and hereby is, DISMISSED, in its entirety, with prejudice. NOTES [1] These e-mails stated as follows: 11/19/01 10:02 a.m. (from David DeBiasi to Eric Smith) Hi Boss, Sorry to bother you but I have no other source to research these rumors flying around. I was hoping you could shed some light on them. . .. The strongest one is that the Sheriff is going to make a commander in December. The name that keeps surfacing is Pam McClain because she would be the first black elevated to that rank. I have heard Wayne Wolf's name mentioned but several independent sources keep pointing toward McClain. Any insight into this? I have even heard it mentioned that two commanders might be made. Where in the heck would the money come from? Dave 11/19/01 12:12 p.m. (from Eric Smith to David DeBiasi) Only one commander's position. I told [Undersheriff] Watts that you were my guy, he wants Wolf. I don't see Wolf as having a chance. Pam is in the running as well. I see it as between you and Pam. Realistically I see Pam as having the edge because the Sheriff does not have a blk. female commander and he may have an election next yr. I will keep my word to you and do all that I can. I am here day by day. * * * * * * 12/19/01 04:36 p.m. (from David DeBiasi to Eric Smith) Hi Boss, Heard some more rumors that I thought I would run by you since I am not in the inner circle of knowledge. The word is that a req had been sent to Ulicney for the commanders position with McClain's name on it but that someone may have sent a letter to Ulicney challenging any commander's appointment because it has not been posted. Is this true? The other rumor is that Wolf will be getting commander's pay as sort of a consolation prize. I guess the bottom line is what is the status of this mess.? This perpetual dangling carrot is beginning to wear me out after almost three years. Is there any chance for me or am I being strung along here? . . . Dave 01/02/02 12:47 (Eric Smith to Dave DeBiasi) Dave, Like I indicated earlier in a previous e-mail, I am committed to you for the promotion. Wayne is in the hunt as well as McClain. I think that Pam has the edge as the Sheriff does not have a[n] african american female commander. I have heard nothing about a requ being sent over, but I am not to[o] close to the loop anymore. I heard that he will make some decision in Jan. I'[m] still with you for whatever it's worth. [2] This information is from a log which Plaintiff allegedly kept. See Plaintiff's Ex. 9. He testified in his deposition that he updated his log by recording events as they happen, and at the latest, at the end of each day. See DeBiasi Dep., p. 196. [3] "Taken together the three cases signal to the lower courts that summary judgment can be relied upon more so than in the past to weed out frivolous lawsuits and avoid wasteful trials." 10A C. Wright, A. Miller, M. Kane, Federal Practice & Procedure, § 2727, at 35 (1996 Supp.). [4] There is no similar prohibition against individual liability for individuals in supervisory positions under the Michigan civil rights statutes. See Elezovic v. Ford Motor Co., 472 Mich. 408, 419-26, 697 N.W.2d 851, 857-61 (2005) (holding that under the Michigan Elliott-Larsen Civil Rights Act, supervisors are subject to individual liability, as the corporate employer's agent). [5] The proof required to establish a discrimination claim under Title VII is also the proof required to prove a Section 1983 discrimination claim. See Lautermilch v. Findlay City Schools, 314 F.3d at 275. [6] Ficano's statement itself is an admission by a party opponent and not hearsay. See Fed. R.Evid. 801(d)(2)(A). [7] The hearsay/nonhearsay nature of the statements was discussed only in connection with the plaintiff's proffer of the statements as circumstantial pretext evidence, not with regard to whether they constituted direct evidence of discrimination because the Sixth Circuit found that "even if Murry's comments are admissible as nonhearsay, they do not constitute direct evidence of discrimination" since "Murry was not a decision-maker with regard to Carter's visiting professorship," and "comments made by individuals who are not involved in the decision-making process regarding the plaintiffs employment do not constitute direct evidence of discrimination." 349 F.3d at 273 (citing Hopson v. DaimlerChrysler Corp., 306 F.3d 427, 433 (6th Cir. 2002)). [8] Michigan does not require these "background circumstances." See Lind v. City of Battle Creek, 470 Mich. 230, 681 N.W.2d 334 (2004). [9] Plaintiff's Supplemental Response Brief Exhibit 5 shows a total of 59 applicants. Plaintiff has included in his total applicant calculation the total number of applicants who were eligible and applied for commander positions in 1992, 1996, 2000, 2001, 2002 and 2003. [See Plaintiff's Supplemental Response Exhibits 4 and 5.] Presumably, Plaintiff includes the 2003 eligible applicants because, although this action centers around Defendant's failure to promote him, to commander in 2002, Plaintiff remained an employee of Wayne County Sheriff's Department until his retirement on May 1, 2004. However, Ficano was elected County Executive in 2002 and left his position as Wayne County Sheriff at the end of that year. He was no longer the sheriff in 2003. Further, no evidence has been presented that any commander positions were posted after March 2002 or that any commander appointments were made — by Sheriff Ficano or his successor, Warren Evans — after the March 2002 appointment of Pamela McClain. Therefore, the Court will not consider the 14 individuals listed as 2003 applicants on page 7 of Plaintiff's Supplemental Response Ex. 4. [10] In Defendants' Supplemental Response to the Court's Request, for Additional Discovery, [attached to Plaintiff's Supplemental Response Brief at Ex. 4], Defendants provided a chart of "Persons' Holding Command Positions" during Sheriff Ficano's tenure. Included in that chart were five persons who were appointed to the position of commander pursuant to the provisions of an earlier collective bargaining agreement under which the Sheriff had no discretionary appointment authority with respect to promotions to commander. Article 16, Section 4, ¶ C of that earlier CBA provided, "The Sheriff must promote the highest person on the promotional eligibility list." [See Plaintiff's Supplemental Response Brief, Ex. 1]. Therefore, they are not included in the appointment total. Additionally, two individuals on this chart, Carl Zahn and Richard Fenton, listed as appointments effective in 1996 and 1997, respectively, were not Ficano discretionary appointments, either. Carl Zahn previously held a position that was administratively reclassified to a "commander" position in 1996, and Richard Fenton was originally promoted to commander under the non-discretionary promotion provisions of the 1986-90 CBA. (Fenton was subsequently appointed Chief of Police at Metropolitan Detroit Airport, an executive position, by then County Executive Edward McNamara. In 1997, Fenton decided to leave the Airport Police Chief position and return to his previous Commander position. (The CBA permits employees returning from executive service to return to a former position in which they had civil service status.) Therefore, he was not "appointed" in 1997 to the commander position by Sheriff Ficano.) Accordingly, Fenton and Zahn are not included in the, list of commanders appointed during Ficano's tenure. [11] As indicated above, this "background circumstances" requirement only applies to Plaintiff's federal claims. "Background circumstances" are not required under the Michigan Elliott-Larsen Act. See Lind v. City of Battle Creek, 470 Mich. 230, 681 N.W.2d 334 (2004). [12] Michigan's law regarding pretext law differs from federal law in this regard in that it requires "pretext plus." Under Michigan law, [D]isproof of an employer's articulated reason for an adverse employment decision defeats summary disposition only if such disproof also raises a triable issue that discriminatory animus was a motivating factor underlying the employer's adverse action. In other words, plaintiff must not merely raise a triable issue that the employer's proffered reason was pretextual, but that it was a pretext for . . . discrimination. Therefore, . . . in the context of summary disposition, a plaintiff must prove discrimination with admissible evidence, either direct or circumstantial, sufficient to permit a reasonable trier of fact to conclude that discrimination was a motivating factor for the adverse action taken by the employer toward the plaintiff. Lytle v. Malady, 458 Mich. 153, 579 N.W.2d 906, 916 (1998) (footnotes omitted); see also Town v. Michigan Bell Telephone Co., 455 Mich. 688, 568 N.W.2d 64, 68-69 (1997). [13] To the extent that Plaintiff also points to the evidence of what Plaintiff recorded in his personal log — that Smith told him in a telephone conversation that he had had a conversation with Defendant Ficano in which Ficano told Smith that "he [Ficano] was going to promote McClain because he needs a B/F [black female] for the Detroit votes — as set forth above, this evidence is inadmissible hearsay and, as such, may not be considered here, particularly since Smith has denied these conversations. As for Chief Smith's testimony and e-mails to DeBiasi about McClain's hiring, these present nothing more than evidence of Smith's opinion about Whom Ficano was going to hire. It is well-settled that opinions expressed by co-workers who have no direct involvement in the decision-making processes have no probative value as to the employer's alleged discriminatory intent. Haley v. General Elec. Co., 3 Fed.Appx. 240, 248 (6th Cir.2001); see also Chappell v. GTE Prods. Corp., 803 F.2d 261, 268 (6th Cir.1986), cert. denied, 480 U.S. 919, 107 S.Ct. 1375, 94 L.Ed.2d 690 (1987) (personal beliefs, conjecture and speculation are insufficient to support an inference of age discrimination.); Mitchell v. Toledo Hosp., 964 F.2d 577, 585 (6th Cir.1992) (holding that rumors, conclusory allegations and subjective beliefs which are wholly insufficient evidence to establish a claim of discrimination as a matter of law).

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2348875/

123 N.J. Super. 167 (1973) 302 A.2d 138 STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. GABRIEL CATTANEO, DEFENDANT-APPELLANT. Superior Court of New Jersey, Appellate Division. Argued January 22, 1973. Decided March 21, 1973. *169 Before Judges CARTON, MINTZ and HORN. Mr. Seymour Margulies argued the cause for appellant (Mr. Howard M. Stroger, on the brief). Mr. Edwin H. Stern, First Assistant Prosecutor, and Mr. Edward C. Megill, Assistant Prosecutor, argued the cause for respondent (Mr. Geoffrey Gaulkin, Prosecutor of Hudson County, attorney). The opinion of the court was delivered by MINTZ, J.A.D. Defendant was tried to a jury on a four count-indictment in which he was charged in the first two counts with perjury, in violation of N.J.S.A. 2A:131-1, and in the third and fourth counts with false swearing, in violation of N.J.S.A. 2A:131-4. At all relevant times in question defendant was Acting Chief of Detectives in the Hudson County Sheriff's Office and then Chief Inspector in that Bureau. *170 The indictments resulted from defendant's testimony on September 23, 1971 before the grand jury which was inquiring into certain allegations concerning the purchase of tickets by sheriff's officers in Hudson County to the Democratic Party annual dinner. The first count essentially charged that defendant committed perjury when he testified that to his knowledge within the last ten years it never cost more than $100 for one ticket to that dinner; that in the past four years it never cost any individual more than $100 to receive one ticket, and that he never received more than $100 for an individual ticket from any member of his staff. In the second count defendant was charged with perjury when he testified before the grand jury that the 3% contribution in Hudson County did not apply to tickets that he distributed; that everyone he spoke to gave willingly; that he had no first hand experience with the 3% contribution tradition, and that he did not ever remember receiving 3% of any employee's salary for a ticket. The third count charged defendant with false swearing in violation of N.J.S.A. 2A:131-4, based upon the same testimony before the grand jury referred to in the first count. The fourth count charged defendant with false swearing based on the same testimony mentioned in the second count. The jury found defendant not guilty on the first count; guilty of perjury as alleged in the second count, guilty of false swearing under the third count, and failed to return a verdict on the fourth count. The court thereupon entered a dismissal as to the fourth count. In summary, defendant was convicted of perjury concerning his testimony respecting the 3% contribution of an employee's salary for the purchase of a ticket, and false swearing with respect to his testimony that he never received more than $100 for the sale of a ticket. Defendant was sentenced from one year to 18 months on the second count and fined $2,000, plus costs of trial. On the third count defendant received the same custodial sentence, *171 to be served concurrently with that imposed on the second count. On appeal defendant raises several contentions. Initially he argues that the court erred in denying his motion to dismiss the indictment, and that the counts in the indictment charging him with false swearing should have been dismissed as plain error. N.J.S.A. 2A:81-17.2a2 provides that any public employee testifying before a grand jury is immune from prosecution in a subsequent criminal proceeding based upon his grand jury testimony or the evidence derived therefrom. The only stated exception is perjury; there is no immunity from prosecution for that offense. Defendant contends, among other things, that (a) under the cited statute he was immune from prosecution for anything other than perjury; (b) he was the "target" of the grand jury proceeding and the prosecutor was accordingly obligated to advise him of his Fifth Amendment rights, and (c) he had a right to counsel when testifying before the grand jury. Prior to testifying defendant signed a waiver of immunity, which he now contends was not voluntary and therefore ineffectual. The motion to dismiss the indictment was made prior to the empanelling of a jury. The trial judge, in denying the motion, referred to the colloquy preceding the execution of the waiver and concluded that defendant fully understood the contents of the waiver of immunity, and further stated that if defendant was the "target" of the grand jury proceeding, his testimony could not be used against him in connection with the substantive offense under investigation, but he would not be immune from a prosecution for perjury or false swearing within the purview of N.J.S.A. 2A:81-17.2al et seq. We note that defendant was employed in the Sheriff's Office for about 17 years and during the relevant period in question held a superior position. We are satisfied that the record supports the finding that the waiver was fully understood and voluntarily made by defendant. Hence we need not reach the question whether immunity is granted for *172 the lesser offense of false swearing, although not specifically mentioned in N.J.S.A. 2A:81-17.2a2. Defendant next argues that since he was the "target" of the grand jury proceeding, the prosecutor was obligated to advise him of his Fifth Amendment rights. It is clear that if it is "unmistakable" that the grand jury was actually conducting an investigation directed against the witness, there is a duty to advise him of his privilege against self incrimination. State v. Fary, 19 N.J. 431 (1955). However, this duty does not arise unless the proceeding is merely a "ruse" by which it is sought to induce the witness to unwittingly give evidence against himself. Fary, supra, 19 N.J. at 438. State v. Grundy, 136 N.J.L. 96, 98 (Sup. Ct. 1947). Further, it is the burden of the witness to show that such a "ruse" existed, and any doubt is resolved in favor of the validity of the indictment. Fary, supra, 19 N.J. at 438. In the case at bar, there was no showing that the real purpose of the grand jury proceeding was to obtain incriminating statements that could be used in a planned prosecution of defendant for a substantive offense, or that the proceeding was other than a general inquiry, as recited in the indictment. Moreover, we find that the grand jury proceeding was a general inquiry. Finally, even if defendant was a "target" and therefore was entitled to be advised of his privilege against self incrimination, the failure to so advise does not preclude prosecution for perjury or false swearing. State v. Falco, 60 N.J. 570, 585 (1972); State v. Williams, 59 N.J. 493, 500 (1971). Defendant's argument that he had a right to counsel is also without merit. That a constitutional right to counsel does not arise when a person testifies at a grand jury proceeding, such as was conducted here, is well-settled. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). In re Groban, 352 U.S. 330, 77 S.Ct. 510, 1 L.Ed.2d 376 (1957). United States v. Morado, 454 F.2d 167 (5 Cir.1972). United States v. DiMichele, 375 F.2d 959 (3 *173 Cir.), cert. den. 389 U.S. 838, 88 S.Ct. 54, 19 L.Ed.2d 100 (1967). State v. Williams, 59 N. J 493, 501-502 (1971). Defendant argues that the trial court committed reversible error by failing to charge the jury that corroboration was necessary to sustain a conviction for perjury. It is clear that if the State produces a single witness to establish the falsity of the defendant's statement, there must be corroboration of that witness' testimony to sustain a conviction for perjury. State v. Bulach, 10 N.J. Super. 107, 110 (App. Div. 1950); State v. Taylor, 5 N.J. 474 (1950). However, the corroboration may be circumstantial in nature. The rationale behind the rule is that a defendant should not be convicted for perjury on the sole basis of his word being pitted against one other person's word, i.e., "oath against oath." 7 Wigmore on Evidence (3d ed. 1940), §§ 2040, 2041. However, this is not the circumstance in this case. The State produced seven witnesses at trial who were employees of the Hudson County Sheriff's Office during the period in question. Each testified that at various times he paid defendant sums substantially greater than $100 for a single ticket. Five of the seven also testified to the effect that the sum paid was or was supposed to be 3% of their salaries. It was clear from their testimony that defendant was aware of the sums paid. Several of the witnesses testified that defendant told them the amounts to be paid; another testified that defendant had a sheet of paper with a list of names on it and the amounts to be paid. The evidence was overwhelming that defendant lied when he testified that he never received more than $100 for one ticket and that the 3% rule never applied to tickets he distributed. There were five, not one, witnesses testifying in direct refutation of defendant's statement that the 3% rule never applied to tickets that he distributed. It may be argued that corroboration still should have been charged since the jury conceivably may have believed only one of the witnesses. Although the trial judge did not use *174 the term "corroboration" in his charge or explain the concept of corroboration as set forth in State v. Bulach, 10 N.J. Super. 107, 111 (1950), we note that he instructed the jury to determine the guilt or innocence from "the whole complex of all the testimony," stressed the factor of credibility and then told them to decide whether the State had proved defendant's guilt beyond a reasonable doubt. There was no request to charge the necessity for finding corroboration in order to convict for perjury, as in Weiler v. United States America, 323 U.S. 606, 65 S.Ct. 548, 89 L.Ed. 495 (1944), and no objection taken to the failure of the trial judge to instruct the jury in this respect. Actually defense counsel at the conclusion of the charge, in the course of making certain objections thereto, stated to the trial judge, "You certainly were explicit on the elements of proof, and I appreciate that." It ill behooves defendant to now urge plain error in the trial court's failure to charge the jury on corroboration. Under the circumstances of this case, we are satisfied that the error, if any, did not produce an unjust result. State v. Macon, 57 N.J. 325 (1971). Defendant further contends that the trial judge erred in submitting the entire grand jury testimony to the jury for its consideration in its determination as to whether defendant lied, thereby allowing a finding of guilt based upon the grand jury testimony not alleged to be false in the indictment. However, the trial court especially told the jury that its use of the transcript was limited to the issues of falsity of the subject sets of questions. This was proper. State v. Doto, 16 N.J. 397, 404 (1954). We have considered defendant's contention that the sentence is manifestly excessive. The trial judge noted defendant's health problem, the rights of the public, and indicated that deterrence was a factor to be considered. We do not find *175 any abuse of discretion committed by the trial judge in connection with the sentence. We have considered the remaining points urged by defendant and find them to be devoid of merit. Affirmed.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2348948/

69 F. Supp. 2d 240 (1999) MILL-BERN ASSOCIATES, INC., Plaintiff v. DALLAS SEMICONDUCTOR CORPORATION; Gregory Cappelli; and William Galluccio, Defendants. No. CIV.A.98-11348-GAO. United States District Court, D. Massachusetts. September 21, 1999. Francis A. Mooney, McLaughlin, Mooney & Associates, Wellesley, MA, Edward J. Byrnes, Woburn, MA, for Plaintiff. Joan A. Lukey, Hale & Dorr, Boston, MA, for Defendants. MEMORANDUM AND ORDER O'TOOLE, District Judge. Mill-Bern Associates, Inc. ("Mill-Bern"), a Massachusetts corporation, brought this action in the Massachusetts Superior Court against Dallas Semiconductor Corporation ("Dallas"), a Texas corporation, and two individual employees of Dallas: Gregory Cappelli, a resident of New York, and William Galluccio, a resident of Massachusetts. The defendants, commonly represented, answered in the state court, stating in one of their affirmative defenses their belief that Galluccio, the Massachusetts resident, had been added *241 to the lawsuit for the sole purpose of defeating diversity jurisdiction. On June 23, 1998, the defendants conducted a deposition of a witness designated by Mill-Bern pursuant to Fed.R.Civ.P. 30(b)(6). The defendants contend that the witness's testimony revealed that Mill-Bern had no viable claims against Galluccio. As a result of the deposition, they concluded that their suspicions about Galluccio's joinder as a defendant had been confirmed. Consequently, on July 10, 1998, the defendants filed a notice of removal pursuant to 28 U.S.C. §§ 1441(b) and 1446(b), asserting that but for the fraudulent joinder of Galluccio, there would be complete diversity of citizenship between the plaintiff and the other defendants, giving the Court jurisdiction under 28 U.S.C. § 1332 and qualifying the case for removal. After the case was entered in this Court, the plaintiff moved to remand. Essentially, Mill-Bern makes two arguments in favor of its motion. First, it says the case was not properly removed, because the removal notice was filed more than thirty days after the service of the complaint and no event has occurred that extended or renewed that time limit. See 28 U.S.C. § 1446(b). Second, the plaintiff argues that the claims asserted against Galluccio could not be held to be meritless on the basis of a single deposition when there is more discovery to be conducted by both sides, cf. Fed.R.Civ.P. 56(f), and that, in any event, the fact that the claims against Galluccio may not succeed is not an adequate basis for concluding that Galluccio was named as a defendant solely to defeat diversity. A. Timeliness Ordinarily, a case must be removed within thirty days after the defendant has received the "initial pleading setting forth the claim for relief." 28 U.S.C. § 1446(b). If the case is not removed within this time, the right to remove expires. However, a case that is not originally removable might, in the course of proceedings, become removable. The second paragraph of § 1446(b) provides for this later opportunity to remove: If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, ... The defendants seek to take advantage of this second opportunity. On its face, Mill-Bern's complaint did not present a removable case because there was not complete diversity between the plaintiff and all defendants. The defendants argue that the June 23rd deposition first revealed the suit's removability by demonstrating that the claims asserted against Galluccio were baseless. Since the defendants filed notice of removal within thirty days of the deposition, removal should be proper under § 1446(b). To succeed on this theory, the defendants must show not only that the content of the deposition made the case removable, but also that the deposition was the kind of "other paper" that may renew an otherwise expired right of removal. In the defendants' view, the deposition, or at least the written transcript of it, qualifies as an "other paper." There is no authoritative support for the defendants' theory in this circuit. However, courts elsewhere have held that deposition testimony may constitute an "other paper." See, e.g., S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 494 (5th Cir.1996) (concluding that transcript of deposition testimony is "other paper" permitting removal under § 1446(b)); Haber v. Chrysler Corp., 958 F. Supp. 321, 326-27 (E.D.Mich. 1997) (concluding that deposition itself was "other paper" triggering time for removal, so that attempted removal more than thirty days after date of deposition was untimely). Such cases seem to take the view that the term "other paper" in § 1446(b) should be given "an embracive construction" *242 to include "a wide array of documents." See 14C Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3732, at 300, 306 & n. 28 (3d ed.1998). That is a doubtable proposition. As a general matter, the removal statutes are to be strictly construed. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S. Ct. 868, 85 L. Ed. 1214 (1941); American Home Assurance Co. v. Insular Underwriters Corp., 494 F.2d 317, 319 (1st Cir. 1974); Santiago v. Barre Nat'l, Inc., 795 F. Supp. 508, 510 (D.Mass.1992). Strict construction would seem to call for giving a narrower, rather than a broader, interpretation to the scope of the words "other paper" in § 1446(b). Moreover, whether "other paper" is expansively or narrowly construed as a general matter does not determine whether a particular case will be removable. Removability is determined by the peculiar facts of each case. In one case, an expansive interpretation may lead to a conclusion that removal was timely, while in another case, where the timing and sequence of events is different, the same expansive interpretation may lead to a conclusion of untimeliness. See Rahwar v. Nootz, 863 F. Supp. 191, 192 (D.N.J.1994) (on more expansive interpretation, removal timely and jurisdiction upheld); Central Iowa Agri-Sys. v. Old Heritage Advertising and Publishers, 727 F. Supp. 1304, 1305-06 (S.D.Iowa 1989) (on more expansive interpretation, removal untimely and case remanded); Harrell v. Reynolds Metals Co., 599 F. Supp. 966, 968 (N.D.Ala.1985)(on stricter interpretation, removal untimely and case remanded); Gottlieb v. Firestone Steel Prods. Co., 524 F. Supp. 1137, 1139 (E.D.Pa.1981) (on stricter interpretation, removal timely and jurisdiction upheld). The variety of outcomes suggests that courts may sometimes be tempted by the prospect of an appealing result to choose the mode of interpretation of § 1446(b) — strict or expansive — that will lead to that result. Indeed, some courts have explicitly justified their mode of interpretation by the desirable policy end it serves. See Haber, 958 F.Supp. at 326; Brooks v. Solomon Co., 542 F. Supp. 1229, 1230-31 (N.D.Ala.1982). However, because a chosen mode of interpretation will not itself determine whether the case has been timely removed or not, policy cannot justify choosing either a strict or an expansive interpretation of the words "other paper." The better approach is simply to construe the words "other paper" according to the customary canons of statutory interpretation, without worrying how the construction is characterized. The canon of first resort is that the words of the statute should be given their "plain meaning." See Couvertier v. Gil, 173 F.3d 450, 452 (1st Cir.1999). Application of this canon eliminates the idea that an "other paper" need not be a paper at all. See Gottlieb, 524 F.Supp. at 1139. But cf. Haber, 958 F.Supp. at 327 (deposition testimony itself was "other paper"); Poole v. Western Gas Resources, Civ. A. No. 97-2929, 97-3035, 1997 WL 722958, at *2 (E.D.La. Nov.18, 1997) ("This Court finds no functional difference between a deposition and a transcript of a deposition for purposes of the removal statute."). In their ordinary meaning, the words "other paper" suggest a document of some kind, not just an oral transmittal of information. The defendants here do not take the extreme position that the oral deposition itself was the "other paper." Rather, they contend that their receipt of the written transcript of the deposition renewed their opportunity to remove the case. A second canon of construction, ejusdem generis, requires consulting the context in which the words appear for help in understanding the meaning to be given them. The words "other paper" are part of a series: "amended pleading, motion, order or other paper." Following as they do three specific terms, the general words "other paper" should be understood to describe something that shares some common characteristic or quality with the other terms in the series. See Berniger v. *243 Meadow Green-Wildcat Corp., 945 F.2d 4, 8 (1st Cir.1991); Macaulay v. Boston Typographical Union, No. 13, 692 F.2d 201, 204 (1st Cir.1982). The first three terms in the series — amended pleading, motion, order — each describe a document that serves a relatively formal purpose in the litigation and is formally filed and/or served on the parties.[1] It is easy to conclude that a "paper" that shares those characteristics — a filed affidavit, for example — falls within the scope of the phrase. Is it just as acceptable to understand the phrase to encompass "papers" that are not similarly filed or served? Another way of putting the question is to ask which of the two following rephrasings of the series expressed in the statute better captures the intended meaning: (A) "amended pleading, motion, order or other similar paper;" or (B) "amended pleading, motion, order or other paper of any kind." The second choice places no limit on what might qualify as an "other paper," and is broad enough to encompass the daily newspaper or any other casual writing. Even if it were granted that a "paper" must have some relation to the case, the second phrasing could still be understood to include such informal "papers" as correspondence, documents examined in the course of discovery, and perhaps even reported cases.[2] Oral communications, themselves not qualifying, could be simply reduced to writing and become a "paper." Thus, a deponent's answers might be transcribed and qualify. So would information given to an insurance investigator and memorialized in a written memorandum. Practically speaking, alternative (B) is equivalent to saying that the time for removal would restart after a party had received an "amended pleading, motion, order or other information in written form" indicating removability. One problem immediately apparent with this construction of "other paper" is that it makes the first three words in the series superfluous. More likely, the drafters expressed three examples of papers that would trigger a new opportunity to remove as a way of describing the kinds of papers they had in mind. "Other paper" is not merely some "other written-down information." Rather, an "other paper" is one that somehow matches and fits with the preceding "papers" listed, because it is similar to them. See Berniger, 945 F.2d at 8-9; Macaulay, 692 F.2d at 204. This interpretation is further supported by the fact that the term "paper" is commonly used in the Rules of Civil Procedure to refer to a variety of documents that are formally filed and served. See, e.g., Fed. R.Civ.P. 5(d) ("All papers after the complaint required to be served upon a party, together with a certificate of service, shall be filed with the court ...."); 6(e) ("Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is *244 served upon the party by mail, 3 days shall be added to the prescribed period."); 7(b)(2) ("The rules applicable to captions and other matters of form of pleadings apply to all motions and other papers provided for by these rules."); 11(a) ("Every pleading, written motion, and other paper shall be signed by at least one attorney of record ...."); 77(a) ("The district courts shall be deemed always open for the purpose of filing any pleading or other proper paper ...."). Under Massachusetts rules of procedure deposition transcripts are not required to be filed with the court or served on other parties. See Mass. R. Civ. P. 5(a), (d)(2) (West 1999). In practice, a party ordinarily obtains a transcript by purchasing it from the court reporter. Except that it is written and is related to the case in litigation, a transcript of deposition testimony does not share common defining characteristics with an amended pleading, a motion, or a court order. If, to qualify under § 1446(b) as an "other paper," a document must be similar to one of those formal "papers," then a deposition transcript does not qualify. This solution is not without its drawbacks. It is to some degree artificial; it excludes some "papers" that are, as a practical matter, the way parties may learn about whether a suit may be subject to removal. On the other hand, an artificial line is often, as here, a distinct line, and distinct lines are easy to follow. See Smith v. Bally's Holiday, 843 F. Supp. 1451, 1455 (N.D.Ga.1994); Gottlieb, 524 F.Supp. at 1140 ("Defendants should not be required to `guess' when a case becomes removable."). There is a value — not just to defendants — in being able to tell with some assurance what kind of event (or "paper") will trigger a renewed thirty-day opportunity for removal. In sum, I conclude that the receipt by the defendants of the transcript of Mill-Bern's Rule 30(b)(6) deposition did not authorize the removal of the case from the state court under the second paragraph of § 1446(b). Consequently, the case was untimely removed and must be remanded to the state court. B. Fraudulent Joinder As a separate reason for remanding the case, I also conclude that the defendants have not established, as it is their burden to do, that Galluccio was fraudulently joined. Mill-Bern presses three claims arising under Massachusetts law against Galluccio: intentional interference with contractual and advantageous relations, intentional interference with prospective contractual and advantageous relations, and unfair or deceptive business acts or practices in violation of Mass. Gen. Laws ch. 93A, §§ 2 and 11. The defendants' contention is that the Mill-Bern deposition under Rule 30(b)(6) revealed to them that the plaintiff is unable to offer admissible evidence to prove any of the claims against Galluccio. Since there is no hope that a judgment against Galluccio could be obtained, they argue, the inference should be drawn that he is named in the suit only as a device to avoid federal jurisdiction. The defendants do not contend that the complaint fails to allege claims, which, if proven, would lead to a judgment against Galluccio. Their argument is only that the claims, potentially viable on their face, cannot be proven. The defendants say that the plaintiff lacks admissible evidence that would prove the claims. That proposition cannot be established on the basis of a single deposition. The defendants assert, for example, that the deponent was able to support the allegations that Galluccio attempted to interfere with Mill-Bern's relationships with its employees and clients only by repeating "multiple layers of hearsay." Defs.' Mem. Oppos. Pl.'s Mot. for Remand, at 14. But all that means is that the deponent could not be the source of the admissible evidence for those matters, and not that the plaintiff would be unable, through sources other than the deponent (such as the original *245 source of the "hearsay"), to offer evidence that would be admissible to prove the necessary facts. The deposition in question occurred shortly after the suit was filed. There is, presumably, further discovery to be taken by the parties. It would be a hasty, not to say reckless, judgment to jump to the conclusion that the plaintiff will be unable to develop evidence in support of its well-pleaded allegations on the basis of a single deposition. If the issue now before me were presented on a motion for summary judgment under Rule 56, there can be little doubt that the plaintiff would be able to object successfully that no decision should be rendered until it had had an adequate opportunity to conduct its own discovery. See Fed.R.Civ.P. 56(f). The plaintiff's allegations against Galluccio are the kind that are typically proven by evidence from a variety of sources about activities that occurred over a course of time. One could imagine a case where a defendant's liability depended entirely on proof of a relatively discrete act or event, such as whether the defendant had signed a promissory note. In contrast, proof of unlawful interference with contracts is generally considerably less direct, and it is less reasonable in such a case to demand that the plaintiff proffer admissible evidence of its claims before it has had a fair opportunity to conduct discovery. It follows that if the Court would not grant summary judgment on the present record, it should not form the slightly more drastic conclusion that the claims against Galluccio are so meritless that an inference of fraudulent joinder is warranted. C. Coda There is a further wrinkle that deserves comment, because it has relevance to both the timeliness and fraudulent joinder issues. One might wonder why the defendants did not seek to eliminate Galluccio from the suit via a summary judgment motion in the state court and then remove the Galluccio-less case. The state court's grant of summary judgment would seem to qualify as an "order" comfortably within the ordinary meaning of § 1446(b) so as to provide an opportunity for timely removal. One reason, of course, is that the state court might have taken the same view that I have of a summary judgment challenge before the plaintiff has had an adequate opportunity for discovery, and the motion might therefore have failed. That presumably would have doomed any following argument that Galluccio had been fraudulently joined. There is another reason, however, that the defendants candidly acknowledged at the hearing on the motion to remand. The Supreme Court long ago made clear that a case that was not removable when initially brought, because there was not complete diversity, would become removable by the elimination of all nondiverse defendants only if the change resulted from the voluntary act of the plaintiff, such as a voluntary dismissal. The elimination of nondiverse parties over the objection of the plaintiff, such as by a ruling on a defendant's motion for summary judgment, would not make the case removable. See American Car & Foundry Co. v. Kettelhake, 236 U.S. 311, 315-16, 35 S. Ct. 355, 59 L. Ed. 594 (1915); see also Powers v. Chesapeake & O. Ry. Co., 169 U.S. 92, 18 S. Ct. 264, 42 L. Ed. 673 (1898). There could be some question whether that rule endures after the amendment to § 1446(b) that permits a new opportunity for removal after a party receives an "order" that makes the case removable. The Supreme Court has not answered that question, but the consensus of the lower courts is that the rule retains its vital force. See 14B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3723, at 583 & n. 22 (3d ed.1998). In this case, application of the rule would mean that even if the state court granted the defendants' motion and dismissed the plaintiff's claims against Galluccio, leaving only "diverse" defendants, *246 the case could not then be removed. The defendants have sought to avoid the effect of the Kettelhake rule by refraining from presenting their summary judgment argument to the state court — a no-win proposition for their removal objective — and instead presenting it here disguised as a fraudulent joinder claim. Perhaps they should be given credit for their ingenuity, but it should not surprise them that a federal court, careful of the limits of its diversity jurisdiction, is, in the circumstances, unwilling to indulge the masquerade. Order For all the foregoing reasons, it is ORDERED that the plaintiff's motion to remand the case to the Massachusetts Superior Court is GRANTED, and the case is REMANDED. NOTES [1] A party may receive notice of the paper "through service or otherwise." 28 U.S.C. § 1446(b). Among other things, this indicates that, while a "paper" might be required to be served, the running of the removal time period does not await formal service. Thus, for example, if the plaintiff files an amended complaint and sends a courtesy copy to the defendant, the time for removal starts from the informal receipt of the pleading rather than with the formal receipt by service. The same provision pertains to the defendant's receipt of the initial pleading. See 28 U.S.C. § 1446(b). Cf. Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 119 S. Ct. 1322, 143 L. Ed. 2d 448 (1999). The provision only has significance with respect to "papers" that need to be served. I do not read this provision, as some have, as implicitly suggesting that papers that do not require service must be included within the term "other paper." If such papers were included, it would not be necessary to provide that notice of the removability could be received "by service or otherwise;" that would be obvious. [2] Some courts have adopted this broad approach. See Rahwar, 863 F.Supp. at 192 (informal statement of damages is "other paper"); Broderick v. Dellasandro, 859 F. Supp. 176, 179-80 (E.D.Pa.1994) (letter from counsel); Hessler v. Armstrong World Indus., 684 F. Supp. 393, 394-95 (D.Del.1988) (same).

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2348951/

69 F. Supp. 2d 171 (1999) Paul VOLLE, et al., Plaintiffs, v. Peter B. WEBSTER, et al., Defendants. No. Civ.A.99-265-P-H. United States District Court, D. Maine. October 1, 1999. James Bopp, Jr., Raeanna S. Moore, Bopp, Coleson & Bostrom, Terre Haute, *172 IN, John A. McArdle, III, Campbell & McArdle, P.A., Portland, ME, for plaintiffs. William R. Stokes, Assistant Attorney General, Augusta, ME, for defendants. Stephen C. Whiting, Whiting Law Firm, P.A., Portland, ME, for Christian Civic League & Christian Action League. MEMORANDUM DECISION HORNBY, Chief Judge. This "election law" case[1] involves ballot measures, not candidate elections. In November, Maine voters will vote their views on partial-birth abortion (along with eight other ballot initiatives) and Town of Falmouth voters will vote on a charter amendment. No candidates will be elected on either ballot. Paul Volle is an individual Maine resident. Management Research and Development Association ("MRDA") is Volle's unincorporated business association that ordinarily engages in publishing, printing, typesetting and consulting on manufacturing and quality issues. They both want to solicit money and make expenditures in support of advocacy seeking to influence the outcome of the November statewide and Falmouth ballot questions. If they do so, Maine statutes require them to register with the State as political action committees. According to Maine's election statute, anyone who spends over $50 on a ballot issue — for example, Volle, if he spends $51 to erect a sign on his front lawn or to hold a koffee klatch or barbecue to urge his neighbors how to vote on one of these ballot questions — becomes a "political action committee." See 21-A M.R.S.A. § 1052(5)(A)(3).[2] He then must appoint a treasurer before actually spending the money, see id. § 1054, and the treasurer must keep records for at least four years, see id. He also must register with the Maine Commission on Governmental Ethics and Election Practices within seven days and disclose to the Commission bank accounts, assets, the position he takes on the issue, anyone who has contributed money, and more. See id. § 1053. According to the United States Supreme Court, advocacy concerning referendum-type elections of this sort involves "core political speech," and state regulation of election advocacy accordingly requires "exacting scrutiny" to ensure that the regulation is "narrowly tailored" to an "overriding state interest." McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 347, 115 S. Ct. 1511, 131 L. Ed. 2d 426 (1995). The Court has reminded us that the premise of the First Amendment is that voters are presumed to be able to assess the persuasiveness of a message and vote a ballot issue up or down on its merits. See id. at 348-49, 115 S. Ct. 1511. Applying the Supreme Court's exacting scrutiny, I conclude that Maine's registration statute as currently written does violate the First Amendment as it applies to individuals like Volle or associations like MRDA.[3] *173 ANALYSIS Volle and MRDA make two basic arguments against the statute: that in taking a position on these ballot measures they will be engaging solely in issue advocacy, not the support of any candidate for election, and that the First Amendment prohibits Maine from regulating this type of pure issue advocacy in any way, even by registration requirements; that in any event, even if Maine can constitutionally require registration in connection with advocacy on ballot measures that do not involve candidate elections, Supreme Court caselaw limits any such registration requirements to those organizations whose major purpose is the passage or defeat of a ballot measure. The State concedes that Volle's and MRDA's major purpose is not the ballot measure, but contends that the State's regulations really require only the reporting of expenditures and contributions directed to a particular election outcome and that, construed in this manner, they pass constitutional muster. I analyze these two issues as the parties have presented them, then proceed to a third. 1. Can There Be Any State Registration Requirement in Connection With Advocacy About a Noncandidate Ballot Measure? Volle and MRDA argue that any registration requirement at all in a state election that does not involve candidates is per se invalid. The State disagrees. The Supreme Court's most recent pronouncement in this area of noncandidate elections is Buckley v. American Constitutional Law Foundation, 525 U.S. 182, 119 S. Ct. 636, 142 L. Ed. 2d 599 (1999) ("Buckley II").[4] That decision struck down a number of Colorado regulations concerning the state's petition process. In doing so, however, the Supreme Court said *174 that it was legitimate for a state to require sponsors of ballot initiatives to disclose to the State the names of proponents of the petition and the amount being spent. See id. at 647, 648. The Court approvingly identified that requirement as a way to inform voters of "the source and amount of money spent by proponents to get a measure on the ballot." Id. at 647. In Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 102 S. Ct. 434, 70 L. Ed. 2d 492 (1981), the Supreme Court had earlier struck down state limitations on money contributions to political committees supporting or opposing a ballot measure. In doing so, the Court observed that "[t]he integrity of the political system will be adequately protected if contributors are identified in a public filing revealing the amounts contributed...." Id. at 299-300, 102 S. Ct. 434. Both Buckley II and Berkeley involved issue-only elections; no candidate voting was involved. Together they amount to an unequivocal declaration that although there are First Amendment restrictions on what a state can do, a public filing requirement in an issue-only election is not wholly prohibited.[5] The plaintiffs argue, however, that neither case supports a "registration" requirement. Registration is an ambiguous term; it can be more or less burdensome and might be crafted so as to require no more than the disclosure permitted by Buckley II and Berkeley —"I have spent or received this much and here I am." Registration, I conclude, is not per se prohibited. 2. Can Registration Be Required When the Major Purpose of the Person or Association to be Registered is Not the Passage or Defeat of the Ballot Question? The plaintiffs also contend that only organizations whose major purpose is the passage or defeat of a ballot measure can be required to register. The State's position on this issue is more complicated, as I explain below. As the plaintiffs argue, Buckley I narrowed the scope of the Federal Election Campaign Act because of First Amendment concerns. As a result, under the federal statute, general registration and disclosure requirements can now apply only to organizations that are under the control of a candidate or whose "major purpose" is the nomination or election of a candidate. Buckley I, 424 U.S. at 78, 96 S. Ct. 612. The first test—candidate control— does not apply here. On the second test, the State has conceded for purposes of this case that the November election in Maine is not the major purpose of either Paul Volle the individual or MRDA, the association.[6] But according to the State, that is not the end of the matter. The Supreme Court has held that individuals, and groups that are not political committees under the major purpose test of the federal statute, can nevertheless be required to report "(1) when they make contributions earmarked for political purposes or authorized or requested by a candidate or his agent, to some person other than a *175 candidate or political committee, and (2) when they make expenditures for communications that expressly advocate the election or defeat of a clearly identified candidate." 424 U.S. at 80, 96 S. Ct. 612. The State asserts that Maine's registration requirements are really only reporting or disclosure requirements of the sort approved in Buckley I, apply only to monies raised or spent for the express advocacy of the passage or defeat of a specific ballot measure and thereby comply with the language of Buckley I directed to organizations that are not political committees and individuals.[7] Thus, the Attorney General's Office argued at the hearing that an individual like Volle would have to report only the amounts he raised and spent for the ballot campaign. See also Defs.' Br. at 17.[8] The Maine statute is written far more broadly than the Attorney General's Office would have it. First, as soon as the money threshold is passed, the registration requirement applies, and much more than disclosure of campaign fund-raising and expenditures is involved. See 21-A M.R.S.A. § 1053. If Volle spends $51, he becomes a political action committee under the statute and must then disclose the "names and addresses of the depositories in which funds of the committee are kept and the account numbers of each depository account." Id. at § 1053(3). If Volle— or anyone else who spends $51 on a lawn sign urging a particular vote on the ballot— chooses not to set up a separate committee or to establish separate bank accounts, it is hard to see how he can avoid disclosing all his bank accounts under section 1053. The same holds true for an association and its bank accounts. Likewise, the statute requires that in the registration statement the "total assets of the committee [i.e., Volle] available to influence elections" be itemized and disclosed. Id. at § 1053(5). The Attorney General's Office argues that this requirement would not apply to an individual, or would require disclosure of only the amounts Volle actually spent. But the clear language is to the contrary; all of Volle's assets are available to him to use as he chooses and must therefore be disclosed. In the case of an organization, all of its assets are likewise available for use as an owner/manager chooses and must be disclosed. Beyond the expenditure and fund-raising disclosures that the State argues can constitutionally be required, Volle must also appoint a treasurer even if he spends only $51 (and must appoint the treasurer before he spends the money). See id. at § 1054. Detailed records and receipts must be retained. See id. at § 1057. At least two reports must be filed in connection with the election, see id. at § 1059(2)(C), and if Volle or MRDA neglects to file a termination report, see id. at § 1061, then quarterly reports must also be filed, see id.; id. at § 1059(2)(A). Thus, Maine has far more extensive requirements than Buckley I suggests is permissible. Without a doubt, they would operate to deter spending in support of speech favoring or opposing ballot measures. Essentially, the Attorney General's Office is asking the court to read into Maine's one-size-fits-all registration/disclosure statute two separate sets of rules: one set for political action committees *176 whose major purpose is a ballot measure — they would have to report all of their activities; and a second set for individuals and organizations whose major purpose is not a ballot measure — they would have to report only campaign-related receipts, expenditures and assets. The statutory language simply will not bear this creative reading. 3. Can the Maine Statute Survive the First Amendment Challenge? The specific answers to the parties' arguments as they have framed them, therefore, are that (1) states have some authority to require that the proponents of the passage or defeat of a ballot measure and the expenditures they make must be disclosed; (2) Volle and MRDA cannot constitutionally be subjected to the full panoply of registration and reporting requirements that Buckley I examined under the Federal Election Campaign Act; but under Supreme Court caselaw Maine can subject them (and others like them) to some carefully crafted mandatory disclosures. Applying the "exacting scrutiny" the Supreme Court has called for, looking for an "overriding state interest" and assessing whether the statute is "narrowly tailored" to accomplish that interest, McIntyre, 514 U.S. at 347, 115 S. Ct. 1511, I conclude that Maine's registration statute goes considerably beyond what is permitted and is therefore unconstitutional as it applies to an individual like Paul Volle and an association like MRDA. As Bellotti, 435 U.S. at 790, 98 S. Ct. 1407, and Buckley II, 525 U.S. at ___, 119 S.Ct. at 648, recognized, corruption and the appearance of corruption are not really at stake in a referendum, where the electorate can assess the particular issue on the merits and need not worry about a candidate's being beholden to a contributor on some future vote. But although McIntyre, 514 U.S. at 341-43, 115 S. Ct. 1511, refers enthusiastically to the Republic's tradition of anonymous pamphleteering, the Court has also recognized in Berkeley, 454 U.S. at 299-300, 102 S. Ct. 434, and Buckley II, 525 U.S. at ___, 119 S.Ct. at 647, 648, that the State has a legitimate interest in letting the voters know where the money comes from. That interest is not as significant as the corruption concern, however, see McIntyre, 514 U.S. at 356, 115 S. Ct. 1511; and, more importantly, can be achieved by simple disclosure requirements — as Maine has demonstrated in its independent expenditure statute for candidate elections. See 21-A M.R.S.A. § 1019.[9] Under that statute, Maine has developed a simple form for such a disclosure. See Ex. 1. In contrast, the panoply of registration requirements Maine has implemented for noncandidate ballot measures is simply too broad under the First Amendment for speakers like Paul Volle and MRDA. I have looked carefully at the Maine statute, but I cannot limit it so as to survive constitutional attack, because its provisions are integrated one with another. If Maine wishes to preserve some limited regulatory oversight of ballot measure advocacy fund-raising and spending, as I have suggested it can under current Supreme Court precedents, then there are legislative decisions to be made that involve the definition of political action committee (or rejection of the category), what information is to be reported and when. There are no separate provisions in this statute that I can segregate out from the rest and uphold as constitutional as they apply to Volle and MRDA. CONCLUSION Accordingly, the plaintiffs' request for declaratory judgment[10] is GRANTED as follows: *177 It is hereby adjudged that 21-A M.R.S.A. §§ 1052(5)(A)(3) and (4) are unconstitutional as they apply to Volle and MRDA. The Clerk shall enter judgment accordingly. SO ORDERED. NOTES [1] At a hearing on September 24, 1999, the parties submitted the case on a stipulated record consisting of the factual allegations of the Verified Complaint; the exhibits attached to the defendants' memorandum in response to the motion for preliminary injunction; and exhibit 1 admitted at the hearing on September 24, 1999. The defendants have raised no challenge to the plaintiffs' standing or to the court's authority to issue the relief requested. Accordingly, I address only the merits of the dispute. [2] A person or association that solicits money and spends over $1,500 is also covered. 21-A M.R.S.A. § 1052(5)(A)(4). [3] The State wisely has not argued that because money (contributions or expenditures) triggers the registration requirement, First Amendment interests are not at stake. The Supreme Court has let there be no doubt on this score: the invasion of privacy or belief may be as great when the information sought concerns the giving and spending of money as when it concerns the joining of organizations, for "[f]inancial transactions can reveal much about a person's activities, associations, and beliefs." Our past decisions have not drawn fine lines between contributors and members but have treated them interchangeably. In Bates, for example, we applied the principles of NAACP v. Alabama and reversed convictions for failure to comply with a city ordinance that required the disclosure of "dues, assessments, and contributions paid, by whom and when paid." The strict test established by NAACP v. Alabama is necessary because compelled disclosure has the potential for substantially infringing the exercise of First Amendment rights. Buckley v. Valeo, 424 U.S. 1, 66, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976) (per curiam) (citations omitted. The Court went on to discuss the state interests that might justify a First Amendment incursion.) See id. at 66-68, 96 S. Ct. 612. [4] Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659 ("Buckley I"), is the fountain-head of First Amendment election caselaw. That case involved a First Amendment challenge to the Federal Election Campaign Act ("FECA"). The Court carefully distinguished express advocacy of the election or defeat of a specific candidate from the general discussion of political issues, see 424 U.S. at 42-44, 78-80, 96 S. Ct. 612, and recognized far more authority in the government to regulate the former than the latter, see id. at 19-23, 96 S. Ct. 612. The Court emphasized the distinction in FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 248-49, 107 S. Ct. 616, 93 L. Ed. 2d 539 (1986). In order to avoid First Amendment problems of vagueness and overbreadth, Buckley I also limited the FECAs' general reporting requirements to political committees that either were controlled by a candidate or whose "major purpose" was the nomination or defeat of a candidate. See 424 U.S. at 79, 96 S. Ct. 612. But Buckley I was concerned specifically with elections that involved the election of candidates, not elections that involved other ballot measures like referenda. Only in later cases did the Supreme Court deal with ballot measures other than candidate elections. In First National Bank of Boston v. Bellotti 435 U.S. 765, 790, 98 S. Ct. 1407, 55 L. Ed. 2d 707 (1978), it recognized that votes on ballot measures involve less risk of corruption that would justify state regulation than do candidate elections where there is concern to avoid a quid pro quo arrangement between a candidate and the contributor. "Referenda are held on issues, not candidates for public office. The risk of corruption perceived in cases involving candidate elections simply is not present in a popular vote on a public issue." Id. at 790, 98 S. Ct. 1407 (citations and footnote omitted); accord Buckley II, 525 U.S. at ___, 119 S.Ct. at 648. Then in McIntyre, 514 U.S. at 347, 115 S. Ct. 1511, the Supreme Court made clear that exacting scrutiny applies to any state regulation of advocacy in noncandidate elections like referenda. [5] In Berkeley, the Court also observed: "Here, there is no risk that the Berkeley voters will be in doubt as to the identity of those whose money supports or opposes a given ballot measure since contributors must make their identities known under § 112 of the ordinance, which requires publication of lists of contributors in advance of the voting." 454 U.S. at 298, 102 S. Ct. 434. See also Vote Choice, Inc. v. DiStefano, 4 F.3d 26, 31-33 (1st Cir.1993)(declining to find per se invalid a Rhode Island statute that required all political action committees to disclose their contributors). [6] Although the major purpose test can be used in assessing an artificial entity (lawyers are accustomed to articles of incorporation that specify purposes, and balance sheets and profit and loss statements are comfortably used in measuring activities) it makes little sense in dealing with an individual. For example, the fact that someone's housing expenditure is the major component of his household budget hardly makes housing his major purpose. The Supreme Court has never used the test in connection with an individual, so far as I am aware, and its discussion in Buckley I, 424 U.S. at 79-80, 96 S. Ct. 612, suggests that the major purpose test does not apply to an individual. [7] Buckley I's language is directed at candidate elections, and there could be some debate whether the "major purpose" test applies to noncandidate elections. Aside from their argument that registration is per se prohibited in a noncandidate election (an argument I have rejected in section 1), the plaintiffs do not press the point, nor do the defendants. [8] The plaintiffs assert that they are not challenging the required disclosure of independent expenditures, the subject of this portion of Buckley I, and of a separate Maine statutory provision, 21-A M.R.S.A. § 1019, the independent expenditure reporting requirement for candidate elections. (Section 1019 does not apply to noncandidate ballot measures; indeed, "independent expenditure" is a term that makes much less sense in the context of noncandidate elections.) But I take the Attorney General's argument to be that the logic of this portion of Buckley supports the position the State takes on the registration requirement. [9] A third state interest is sometimes recognized— disclosure to aid the state in its enforcement efforts where there are dollar limitations. Buckley I, 424 U.S. at 67-68, 96 S. Ct. 612. There are no dollar limitations to enforce, however, in noncandidate elections and that state interest accordingly is not present here. [10] I do not at this time grant injunctive relief because I have been given no indication that the State will decline to comply with this court's declaratory judgment. If I am wrong, the plaintiffs are obviously free to revisit the matter. I also do not declare the statute unconstitutional on its face. See Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 504, 105 S. Ct. 2794, 86 L. Ed. 2d 394 (1985). As I have said in text, the plaintiffs' arguments that the State can never require registration are incorrect; there may well be some political action committees to whom this statute can constitutionally apply.

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262 S.W.3d 189 (2007) RICHARD HARP HOMES, INC., Appellant, v. Jim VAN WYK and Marla Van Wyk, Appellees. No. CA 06-1446. Court of Appeals of Arkansas. September 12, 2007. Niswanger Law Firm, PLC, by: Stephen Niswanger, Little Rock, AR, for appellant. Albert Janney Thomas, III, Little Rock, AR, for appellee. *190 KAREN R. BAKER, Judge. This is an appeal from an order denying a motion by appellant Richard Harp Homes, Inc. (Harp), seeking to compel arbitration of a cross-claim filed against it by appellees Marla and Jim Van Wyk. The circuit court found that the arbitration provision was supported by mutuality of obligation but that the obligations were rendered illusory when the contract is considered as a whole. We affirm. In April 2004, Harp agreed to construct a home for the Van Wyks in a subdivision covered by a "Bill of Assurance" containing a provision regulating setback lines between adjacent lots. The agreement contained the following provisions: 10. DISPUTES OR CLAIMS: A. It is mutually agreed that all disputes and controversies between the parties arising out of or in connection with this Contract as to the existence, construction, validity, interpretation or meaning, performances, nonperformance, enforcement, operation, breach, continuance, or termination thereof or any claim, whatsoever, including, without limitation, alleged misrepresentation, unjust enrichment, fraud, negligence and violations of the Arkansas Deceptive Trade Practices Act (Ark.Code Ann. § 4-88-101, et seq.), Arkansas Unfair Practices Act (Ark.Code Ann. § 4-75-201, et seq.) or any other consumer protection statute shall be submitted to non-binding mediation in accordance with the rules and procedures of the American Arbitration Association and by using the following procedure. Any warranty claims shall first be submitted to any dispute resolution procedure as set forth in the warranty program called for herein. Thereafter, either party may demand mediation by setting forth such claims in such detail as shall give the other party notice and by submitting the claim so mediation in accordance with the rules and procedures of the American Arbitration Association; provided, the parties may mutually agree at the time of a dispute to use a mediation service other than the American Arbitration Association. 1. Within thirty (30) days after the demand, the other party shall prepare a response to the allegations set forth in the Statement setting forth such other matters the other party considers pertinent. 2. Each party shall bear her or his or its own mediation costs and expenses and shall equally bear the cost of the mediation. B. If the parties are unable to settle or resolve the dispute or controversy by mediation, the claim shall be submitted to binding arbitration before one (1) arbiter in accordance with the rules and procedures of the American Arbitration Association in which event the decision of the arbitrator shall be final and binding upon both Parties and may be entered in any Court having jurisdiction; provided, the parties may mutually agree at the time of a dispute to use an arbitration service other than the American Arbitration Association. Demand for arbitration shall be made in writing with the other party to the claim and with the arbitrator. A demand for arbitration shall be made within a reasonable time after the claim, dispute or other matter in question has arisen, but in no event later than the date for the institution of legal proceedings based upon the law of the state where the property is located. The cost of the arbitrator shall be paid by the no-prevailing party or as *191 determined by the arbitrator. The parties acknowledge and agree that the subject matter of this Contract and the undertakings of the parties are matters involving interstate commerce, and as such this arbitration clause is governed by and enforceable pursuant to the Federal Arbitration Act, 9 U.S.C. § 1, et seq. C. The parties stipulate that the provisions of this Contract shall be a complete defense to any suit, action, or proceeding instituted in any federal, state, or local court or before any administrative tribunal with respect to any controversy or dispute arising during the period of this Contract. The mediation and arbitration provisions shall, with respect to the controversy or dispute, survive the termination or expiration of this Contract. D. Said Warranty provides for final and binding arbitration regarding any controversy, claim or complaint arising under said Warranty, which is not resolved by mutual agreement between PURCHASER and BUILDER. PURCHASER'S sole remedy for any such unresolved Warranty matter is the final and binding arbitration stated herein, the right to sue the BUILDER in court being expressly waived. . . . . 31. BREACH BY PURCHASER: If this Contract is breached by PURCHASER or if the PURCHASER fails for any reason to complete his purchase of Property in accordance with the terms and conditions set forth herein, BUILDER shall have the following non-exclusive remedies: BUILDER shall be excused from further performance and may sell the property to a third party without in any way limiting BUILDER'S remedies set forth below; or BUILDER may declare this Contract terminated and Earnest Money plus non-refundable funds shall be forfeited and in addition five thousand dollars ($5,000) shall be paid by PURCHASER to BUILDER as liquidated damages. Earnest Money, non-refundable funds or other damages paid to BUILDER, shall not in any way prejudice the rights of BUILDER or Broker in any action for damages or specific performance, or both. PURCHASER shall be obligated to pay all costs or losses which BUILDER may sustain, including lost profit, court costs and expenses of litigation, including attorneys' fees. PURCHASER shall also be obligated to pay any sales commissions that are due. 32. BREACH BY BUILDER: If this Contract is breached by BUILDER or if BUILDER fails for any reason to complete the sale, PURCHASER may terminate this Contract by written notice to BUILDER and receive a refund of the Earnest Money as PURCHASER'S sole remedy. PURCHASER hereby waives the right to damages or specific performance, or both from BUILDER. PURCHASER hereby waives the defense of non-mutuality of remedies. During construction, Harp discovered that one corner of the structure may be in violation of the setback provision of the bill of assurances. Harp asserts that, when it brought the matter to the attention of the Van Wyks, it was instructed to complete the residence. In April 2005, Harp submitted a proposal to ensure that the residence would comply with the bill of assurances. After the proposal was approved by the Van Wyks and the architectural committee, the Van Wyks refused to allow *192 the modifications to be made. John Crow and his wife, Lee Ann McMillan-Crow, live next door to the Van Wyks on the side where the Van Wyk home allegedly encroaches on the setback line. On March 16, 2006, the Crows filed suit against Harp and the Van Wyks seeking to enforce the setback requirements of the bill of assurances. Harp answered, stating that "the Van Wyks' structure appears to sit within the setback area" but otherwise denying the material allegations of the complaint. The Van Wyks denied the material allegations of the complaint. They subsequently amended their answer to assert a cross-claim against Harp. The cross-claim stated causes of actions for failure to return a security deposit for rental property, breach of contract, breach of implied warranty, negligence, fraud, slander, and deceptive trade practices[1]. The cross-claim also sought punitive damages. Harp responded by filing a motion to compel arbitration.[2] The Van Wyks opposed the motion, asserting that the arbitration provision lacked mutuality and that some of their claims were not subject to arbitration. At the hearing on the motion, Harp argued that the agreement required arbitration of all claims between the parties. The Van Wyks admitted that they amended their complaint to eliminate the claims that would be subject to arbitration, i.e., the breach-of-contract and deceptive-trade-practices claims. They also asserted that the remaining tort and fraud claims had no connection with the agreement containing the arbitration provision. The trial court ruled from the bench and found that, although the arbitration clause contained mutuality of obligation, that mutuality was rendered illusory when the contract was read as a whole, considering the remedies provided each party in paragraphs 31 and 32. A written order was entered on August 17, 2006. Harp filed its notice of appeal on September 18, 2006.[3] The Crows subsequently dismissed Harp from the original suit. An order denying a motion to compel arbitration is an immediately appealable order. Ark. R.App. P.-Civ. 2(a)(12); IGF Ins. Co. v. Hat Creek P'ship, 349 Ark. 133, 76 S.W.3d 859 (2002). We review a circuit court's order denying a motion to compel arbitration de novo on the record. IGF Ins., supra. Harp argues that the mutuality of the arbitration provision is not rendered illusory because it has not reserved the right to pursue its remedies through any means other than arbitration. We find this case to be controlled by the supreme court's decision in Tyson Foods, Inc. v. Archer, 356 Ark. 136, 147 S.W.3d 681 (2004), because the agreement in the present case, when read as a whole, does not clearly and specifically limit Harp to its remedies in arbitration. In Tyson Foods, the court held that an arbitration agreement lacked the necessary mutuality of obligation where swine producers were *193 limited to pursuing any grievance in an arbitration forum while the owner of the swine (Tyson) retained the sole right to pursue legal or equitable remedies. Tyson, 356 Ark. at 146, 147 S.W.3d at 687. The court also noted that there is no mutuality of obligation where one party uses an arbitration agreement to shield itself from litigation, while at the same time reserving its own ability to pursue relief through the court system. Id. The same rules of construction and interpretation apply to arbitration agreements as apply to agreements generally, thus we will seek to give effect to the intent of the parties as evidenced by the arbitration agreement itself. Id. In the present case, paragraph 10 purports to require that both parties submit "all disputes" to mediation and arbitration. Paragraphs 31 and 32 then specify the remedies available to each party in the case of a breach. Included in paragraph 31, entitled "Breach by Purchaser," is the following language: "[Van Wyk] shall be obligated to pay all costs or losses which [Harp] may sustain, including lost profit, court costs and expenses of litigation, including attorneys' fees." (Emphasis added.) While this language does not specifically reserve Harp's right to litigate any or all disputes, it does render the agreement ambiguous so that the trial court can construe the agreement. The ambiguity arises because the italicized section could be seen as merely illustrative of the types of costs or losses for which the Van Wyks would be responsible. On the other hand, the language could indicate an intent that Harp retained the right to bring suit in court for a breach.[4] In Tyson Foods, the supreme court declined to read into the contract qualifying language that would have made it clear that Tyson's remedies were limited to the confines of arbitration. Tyson, 356 Ark. at 143, 147 S.W.3d at 685. In the present case, it would be necessary to change the wording of paragraph 31 in order for the court to find an unambiguous mutuality of obligation. However, that would be contrary to the rules of construction that require that effect be given to all provisions of the agreement. Id. at 143-44, 147 S.W.3d at 685. Therefore, the circuit court correctly declined to compel the parties to submit to arbitration, and we affirm. Affirmed. ROBBINS and GLOVER, JJ., agree. NOTES [1] The cross-claim was later amended to omit the causes of action for breach of implied warranty and violation of the Deceptive Trade Practices Act. [2] Harp also answered the cross-claim, denying the material allegations. Harp asserted that the Van Wyks were the first party to breach the agreement. [3] The order was entered on August 17, 2006, and the notice of appeal was filed on September 18, 2006. The thirtieth day on which to file the notice of appeal fell on Saturday, September 16, 2006. Therefore, the time for filing the notice of appeal was extended to the following business day, Monday, September 18. Ark. R.App. P.-Civil 9; Watanabe v. Webb, 320 Ark. 375, 896 S.W.2d 597 (1995). [4] Cf Hamilton v. Ford Motor Credit, Inc., 99 Ark.App. 124, 257 S.W.3d 566 (2007) (finding the arbitration agreement to be unambiguous where it allowed both parties to demand arbitration while, at the same time, allowing both parties to maintain certain rights, such as the right of Ford Motor Credit to protect its security interest in the vehicle).

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956 A.2d 1261 (2008) Brian WATERMAN, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. No. 562, 2007. Supreme Court of Delaware. Submitted: June 18, 2008. Decided: August 22, 2008. *1262 Nicole M. Walker, Esquire, Office of Public Defender, Wilmington, DE, for Appellant. John Williams, Esquire, Department of Justice, Dover, DE, for Appellee. Before STEELE, Chief Justice, HOLLAND, BERGER, JACOBS and RIDGELY, Justices. BERGER, Justice: In this appeal we consider, among other things, whether the Superior Court abused its discretion by allowing a child victim's videotaped statement into the jury room during deliberations. The trial court did so in an effort to balance the information given to the jury. During defendant's interrogation by the police, the interrogating officer described the victim's account of events, and repeatedly told defendant that he believed the victim. After the interrogation tape was played for the jury, the trial court sua sponte instructed the jury to disregard the officer's comments. In addition, in order to give the jury an opportunity to review what the victim actually said, as opposed to the officer's description of what she said, the court decided to allow the victim's statement to go into the jury room. We conclude that the trial court's concerns did not warrant departure from the "default" rule announced in Flonnory v. State.[1] Nonetheless, we are satisfied that the trial court's error was harmless beyond a reasonable doubt. Accordingly, we affirm. FACTUAL AND PROCEDURAL BACKGROUND Brian Waterman lived at his step-grandmother's farm. Amy Taylor[2] and her siblings regularly visited relatives at the farm, and Amy knew Waterman as "Uncle Brian." Beginning when she was eight years old, Amy was sexually abused by Waterman. She did not tell anyone until more than a year later. When Amy's mother learned of the assaults, she suggested that Amy keep a journal and write about things that made her sad. Amy brought four pages from that journal to an interview with Diane Klecan, of the Children's *1263 Advocacy Center ("CAC"). Klecan videotaped the interview, during which Amy described Waterman's assaults. Amy agreed to let Klecan keep the journal pages, which also described the incidents. After the interview, Klecan turned the journal pages and the videotape over to the police. Detective Mark G. Ryde, of the Delaware State Police, interrogated Waterman. Ryde restated Amy's allegations and told Waterman that Amy was being sincere, truthful, and honest. Ryde also explained that a "high proportion" of victims in these cases tell the truth, and that Amy's recall of dates, places and facts "are details that an 8-year-old can't make up, cannot lie about." Throughout the interrogation, Waterman denied any improper contact with Amy. Amy was the first witness at trial. The trial court allowed the jury to see her videotaped CAC interview pursuant to 11 Del. C. § 3507, but the court stated that the videotape would not be allowed to go into the jury room. Later in the State's case, the audio tapes of Ryde's interrogation of Waterman were admitted into evidence and played for the jury. At the end of the trial, the court decided, over Waterman's objection, that the jury should have access to the CAC videotape during its deliberations. The jury convicted Waterman on multiple counts of rape and related crimes. This appeal followed. DISCUSSION Waterman raises two arguments on appeal: (1) that the four pages from Amy's journal should not have been allowed into evidence, since the remaining pages were unavailable; and (2) that Amy's videotaped interview should not have been allowed to go into the jury room during deliberations. The first issue requires little discussion. Amy brought four torn out pages from her journal to her CAC interview, and allowed Klecan to keep those pages. At some point, the rest of the journal was either misplaced or destroyed. There is no suggestion that Amy, or anyone else, intentionally disposed of the journal to prevent it from being used at trial. Waterman argues that, because the entire journal was not available, he was unable to determine whether other entries might have contradicted the four pages that were introduced into evidence. He says that this limitation on his ability to effectively cross-examine Amy deprived him of a fair trial. We find no merit to this argument. The fact that the entire document no longer exists does not mean the four pages that remain must be excluded. First, there is nothing to suggest that the lost portion of the journal contradicted anything on the four remaining pages. Second, Waterman was able to examine Amy and the two child care supervisors, who had seen the entire journal, about its contents. We conclude that the trial court acted well within its discretion in admitting the four pages into evidence.[3] Waterman's second issue on appeal has merit. He contends that the trial court erred in allowing Amy's CAC videotape to be available to the jury during deliberations. Waterman relies on the decision in Flonnory v. State,[4] where this Court held: As a general matter, recorded or written out-of-court § 3507 statements that are played or read during trial should not be admitted as separate trial exhibits that the jury can take into the jury room during deliberations.... The reason derives from the concern ... that allowing *1264 the jury to have transcripts of trial testimony during their deliberations might result in the jury giving undue emphasis and credence to that portion of the testimony.... Thus, we hold that the "default" rule is that written or tape or video-recorded § 3507 statements should not be admitted into evidence as separate trial exhibits that go with the jury into the jury room during deliberations.... The trial judge does, however, have discretion to depart from this default rule when in his judgment the situation so warrants (e.g., where the jury asks to rehear a § 3507 statement during its deliberations or where the parties do not object to having the written or recorded statements go into the jury room as exhibits.) When the CAC videotape was played for the jury, the trial court cited Flonnory and ruled that the tape would not be allowed into the jury room. The trial court reversed itself at the end of the trial, however, in an effort to address a separate problem concerning the tapes of Waterman's police interrogation. Ryde made numerous inadmissible comments during his interrogation of Waterman. He described Amy's allegations of abuse, which was inadmissible hearsay. In addition, Ryde vouched for Amy's credibility and explained why he believed she was telling the truth. It is settled in Delaware that experts may not usurp the jury's function by opining on a witness's credibility.[5] The Waterman interrogation tapes should have been redacted before being played for the jury.[6] The trial court, recognizing the problem, promptly instructed the jury that Ryde's description of Amy's accusations was not evidence, and that the jury is the sole arbiter of a witness's credibility. The trial concluded shortly after Ryde's testimony. Waterman elected not to testify and the defense rested without putting on any witnesses. At that point, the trial court reconsidered its earlier ruling on Amy's CAC videotape: Ordinarily, and certainly as a result of Flonnory, the tape itself is not to be introduced into evidence for the jury to review during the course of its deliberations.... Flonnory allows tapes ... such as the audio tape played a little earlier of the defendant's conversation with Detective Ryde. Flonnory also allowed the Court to ... retain some discretion over whether to admit any other tapes. I am now going to exercise that discretion subject to input from counsel on this issue to allow ... the Children's Advocacy Center tape, to be a State's exhibit and there are several reasons I am exercising that discretion. One of them was really triggered by my need to explain that ... all of Detective Ryde's assertions of what Amy was saying, certain something happened in a chicken house, something happened here ... a lot of these kinds of things which are not evidence, and the jury cannot consider his statements of what she said as evidence, as I told them. There are a number of such statements.... And, if the jury follows my instructions, and I presume that they do, they will disregard Detective Ryde's assertions of what Amy said.... That leaves the jury to consider what they heard on the tape from the Children's Advocacy Center ... which they would not otherwise have in the jury room with *1265 them—versus the [defendant's tapes] on which there [are] a lot of ... assertions that Detective Ryde repeats to Mr. Waterman. And in my view, for the jury's purposes that simply isn't fair. They need to be able to consider evidence, if you will, versus evidence, and that would not happen if [the CAC tape] were not evidence to go before them, even though they are allowed to take notes, even though they heard and saw the video. Waterman objected, arguing that the CAC tape would give undue emphasis to the complaining witness's testimony and cause him undue prejudice. We conclude that the trial court's concerns did not justify departure from the "default" rule that § 3507 statements should not be allowed into the jury room. In Flonnory, this Court identified two circumstances where it might be appropriate to deviate from the default rule—if the jury requests the tape or both parties consent. Neither of those circumstances was present here. Moreover, the trial court's concern about fairness, or balance, arose because of the inadmissible statements in the Ryde tapes. The State could have avoided the "balance" problem by redacting Ryde's interrogation tapes to eliminate his numerous objectionable comments.[7] Finally, the State did not request a departure from Flonnory, and Waterman raised an appropriate objection. In light of all of these factors, we find that the trial court abused its limited discretion by allowing the jury to have the CAC tape during deliberations. Our decision does not require reversal, however, because we are satisfied, beyond a reasonable doubt, that the error was harmless.[8] This case was not close. Amy's testimony in court and on the CAC tape was detailed and unequivocal. Amy had a credible explanation for the delay in reporting her abuse, and she had no reason to fabricate a story—either to help herself or to harm Waterman. Other witnesses established that Waterman and Amy frequently were together at the farm, outside of the presence of other adults. The State's evidence was uncontradicted. In addition to the strength of the State's case is the fact that the error was not significantly prejudicial. It was proper for the jury to see the CAC videotape. The error was in letting the jury have the tape to review during deliberations. Here, the trial lasted less than two days, and there was not much other evidence for the jury to consider. Thus, whether the jury reviewed the tape during deliberations or not, the contents of the tape would have been fresh in the jury's mind. In sum, the trial court's error did not deprive Waterman of a fair trial. CONCLUSION Based on the foregoing, the judgments of the Superior Court are affirmed. NOTES [1] 893 A.2d 507 (Del.2006). [2] The victim's name is a pseudonym selected by the Court pursuant to Supr.Ct. R. 7(d). [3] Smith v. State, 913 A.2d 1197 (Del.2006). [4] 893 A.2d 507, 526-27 (Del.2006). [5] Powell v. State, 527 A.2d 276 (Del.1987); Holtzman v. State, 1998 WL 666722 (Del.); Hassan-El v. State, 911 A.2d 385, 396 (Del. 2006). [6] Holtzman v. State, 1998 WL 666722 at *5. [7] Waterman, also, could have eliminated this problem if he had objected to the unredacted tapes. He did not. We assume that Waterman thought it was a good trial strategy to have the jury hear him repeatedly maintaining his innocence in the face of persistent, argumentative, police questioning. [8] Hawkins v. State, 2006 WL 1932668 at *3 (Del.).

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388 F. Supp. 1362 (1975) HUFFMAN TOWING, INC., Plaintiff, v. MAINSTREAM SHIPYARD & SUPPLY, INC., Defendant. No. GC 74-5-K. United States District Court, N. D. Mississippi, Greenville Division. January 27, 1975. *1363 *1364 Frank S. Thackston, Jr., Greenville, Miss., for plaintiff. Clayton J. Swank, III, Greenville, Miss., for defendant. MEMORANDUM OPINION KEADY, Chief Judge. On January 11, 1974, Huffman Towing, Inc. (Huffman), a Missouri corporation, filed a complaint in admiralty against Mainstream Shipyard & Supply, Inc. (Mainstream), a Mississippi corporation, for the arrest of the M/V H. F. LEONARD (ex M/V HAVANA ZEPHYR). Huffman alleged that Mainstream's delay in performing a contract for repair of its towboat had caused Huffman to suffer substantial damages and had created a dispute over the charges owed Mainstream for the repair work. Upon posting bond for $340,000, Huffman gained possession of the arrested vessel. On January 18, Mainstream filed its answer denying breach of contract and counterclaiming for $336,037.79 as the balance owing by Huffman for repairs to the towboat. On January 21, Huffman admitted owing to Mainstream the sum of $282,670.59, which it paid into the registry of the court.[1] Huffman's bond was reduced to $65,000 pending the outcome of the dispute.[2] In an evidentiary hearing, the court received stipulated facts, live testimony and documentary exhibits. The court now makes a merits determination, incorporating herein findings of fact and conclusions of law as required by Rule 52, F.R.Civ.P. I. FINDINGS OF FACT During the early part of 1973, Huffman desired to repower the LEONARD and solicited bids from four shipyards, including Mainstream, whose proposal was accepted.[3] Mainstream's offer, as set forth in its letter dated March 23, proposed to repower the towboat for $294,000, stating "the work can be scheduled for July 1, 1973, and should require about 60 days to complete."[4] Huffman on April 27 accepted the offer in writing and tendered Mainstream the specified downpayment of $60,000. The time of completion expressed in the contract — "about sixty days" from July 1 — was a material and important consideration to Huffman in deciding to accept Mainstream's offer; and at all pertinent times Mainstream knew of the importance of time because of the vessel's potentiality for earning revenues when placed in service. The undisputed evidence reveals that the work could reasonably have been accomplished by Mainstream within 60 days from commencement or by September 1. Huffman delivered the vessel to Mainstream's yards at Greenville, Mississippi, about June 22. At the time of delivery, and even prior thereto, Huffman contemplated that Mainstream would do certain additional work, over and beyond the items specified in the repowering contract, while the vessel was at Mainstream's *1365 shipyard; and Huffman anticipated that the extra items authorized by it would be done by Mainstream on a time and materials basis and without a fixed time of completion. The cost of these extra repairs authorized by Huffman while the vessel was at Mainstream's shipyard was, excluding sale of parts only, about $82,000. It is stipulated that after crediting Huffman with payments of $342,670.59, a balance of $52,653.13 is owed Mainstream, subject to Huffman's offset for damages, if any. The parties' plans went awry, however, and the contract work, with all extra items ordered by Huffman, was not completed until January 9, 1974, or some 130 days after the original September 1 deadline. The contract work, beyond removing the engines from the LEONARD, was delayed for several weeks beyond July 1. Mainstream attributed this initial delay to the fact that its engine repair shop had become flooded when the Mississippi River rose above 50 feet on the Greenville stage, a condition which first occurred on March 27 and continued to June 1. As a consequence, Mainstream was unable to do comparable engine work on other towboats for which Mainstream had contracted prior to making the Huffman contract. Mainstream was, of course, fully aware of the flooded condition and other work commitments when it submitted the Huffman proposal and it at no time prior to acceptance sought to qualify the contract or extend the time for completion. Huffman assigned its port engineer, Wayne Morris, to supervise the contract work, keep up with its progress, and determine what additional repairs should be made by Mainstream. About July 24, Morris first realized that Mainstream would be unable to complete the contract work by September 1 and so advised his superiors. Huffman made no move to rescind the contract because of delay, and allowed Mainstream to proceed in performing the contract work. Had Huffman rescinded the contract in July or August, it would have been confronted with the likelihood of greater costs from another shipyard and still greater delays in readying the LEONARD for service. It is apparent that Huffman minimized the amount of its actual damages by allowing the LEONARD to remain at Mainstream's shipyard for repairs. Morris emphasized to John Sansing, Mainstream's manager, that Huffman was anxious to have the contract work completed as soon as possible and consistently stressed the importance of time. Even so, Mainstream's progress on the contract work was slow, and continued at substantially less than its efficient capability until the latter part of September. During this time interval, Mainstream was proceeding with two other repowering jobs, accepted incoming new repair jobs, and had other crews engaged in constructing new vessels. As a consequence, in many work weeks Mainstream devoted less than one-third of its potential manpower capacity to the contract work on the LEONARD. Sansing conceded that at least thirty days' delay in performing the Huffman contract was caused by work done on other vessels. On various occasions between July and December Morris requested Sansing to perform extra work on the LEONARD; these requests were usually made orally and handled informally. Morris stated that he did not want the extra work to delay the job, but when Morris' requests involved the employment of the same crafts as were engaged in the contract work — such as electricians, fitters, welders, and engine mechanics — Sansing advised Morris of the difficulties because of limited manpower available. Notwithstanding this, Morris issued extra work orders. Morris also knew that certain extra items which Sansing agreed to perform, but without specifying a date for completion, would, to some extent, likely delay completion of the contract work. The time expended on the contract work amounted to 4800 man hours, while the extra work items required 4300 man hours. Frequently, the *1366 same crafts worked aboard the LEONARD performing contract work or extra work, depending upon the exigencies of a given work day. Huffman made no written protest of the delay until October 31, when it demanded completion by November 15. Despite Morris' claims to the contrary, some of the extra items ordered by him did delay performance of the contract work. Morris testified to the effect that the aggregate of the extra items took about five weeks to accomplish, but he maintained they could have been completed within the original contract period. Morris' testimony is sharply disputed by Sansing and Allen Mott, Mainstream's vice-president. Mott was of the view that the extra work necessarily delayed contract performance from 8 to 10 weeks, while Sansing's estimate of such delay was from 6 to 8 weeks. From this conflicting evidence, the court finds that the contract performance was reasonably delayed 56 days, or eight weeks, because of the extra work ordered by Huffman.[5] Thus, it is fair and reasonable to apportion the 130-day delay in contract performance between the parties by attributing 74 days of the time overrun to Mainstream under the contract and 56 days to Huffman because of the extra work. During the fall months of 1973, market conditions for employing a towboat of the type of the M/V H. F. LEONARD were favorable, and a steady demand existed for such vessels with capacity to tow barges on the inland waterways. The LEONARD, if it had been ready for service on September 2, could have been profitably used by Huffman. Substantial evidence establishes that the towboat could have been chartered for $1,600 per day, plus cost of fuel, and the vessel had a net daily revenue earning capacity of $330.41, exclusive of depreciation and fixed overhead expenses. In addition, Huffman incurred a daily charge of $44.07 for "port risk" insurance, a cost which would have been avoided had the LEONARD been in service.[6] II. CONCLUSIONS OF LAW Huffman's basic contention is that the contractual provision that "work can be scheduled for July 1, 1973, and should require about 60 days to complete," is a sufficiently definite requirement as to time of performance to be binding and enforceable against *1367 Mainstream, for the breach of which a claim for damages arises. We agree. It is, of course, elemental that any ambiguity in the writing should be construed against Mainstream, the drafter of the instrument. The critical words in the document, "should", denoting obligation, and "about", signifying no more than reasonable deviation in the period of time, reasonably convey an intent of a binding undertaking with respect to time. This interpretation is corroborated by undisputed proof that both of the contracting parties entered into the agreement with knowledge of time's importance, and Mainstream fully intended to be bound by the expressed promise as to time of performance.[7] See 1 Williston on Contracts, 3rd Ed., § 40 at 126. Mainstream also conceded that 60 days after commencement of the job was a reasonable time within which to complete the contract. Mainstream does not seriously contest the basic legal principles advanced by Huffman, but asserts that it nevertheless has alternative defenses, as follows: (a) The flooding of Mainstream's engine shops for two months, as a matter of law, extended the time for performance, or excused Mainstream from complying with the promise to complete the contract by September 1. (b) Huffman waived the time clause in the contract by acquiescing in the delay and allowing Mainstream to complete the contract. (c) Huffman waived the time clause in the contract by requesting Mainstream to perform extra work. (d) Since the total delay was attributable in part to Mainstream and in part to Huffman, no apportionment of delay between the parties is factually or legally permissible, thus precluding Huffman from claiming any damages. (e) The evidence fails to show that Huffman suffered losses which are legally recoverable. Finding that Mainstream's contentions are without merit, the court will now discuss each of them. (a) It is well settled that a contract to repair a vessel is maritime, that principles of admiralty govern the rights of a shipowner, and that the terms of the repair contract are construed in accordance with federal law. North Pacific Steamship Co. v. Hall Bros. M. R. & S. Co., 249 U.S. 119, 39 S. Ct. 221, 63 L. Ed. 510 (1919); Alcoa Steamship Co. v. Charles Ferran & Co., 383 F.2d 46 (5 Cir. 1967); Sicula Oceanica S. A. v. Wilmar Marine Eng. & Sales Corp., 413 F.2d 1332 (5 Cir. 1969). In Sicula Oceanica, the Fifth Circuit applied to a maritime contract the general principle of contract law that a supervening discovery of facts that makes the promised performance more difficult, or the occurrence of subsequent events having this effect, if they are such as to be commonly foreseeable and in contemplation, usually does not discharge the contractor from his duty. A corollary rule is that an act of God which renders performance more difficult but not impossible does not excuse the contractor from his unconditional promise. Jones v. United States, 96 U.S. 24, 24 L. Ed. 644 (1878); 1 Am.Jur.2d, Act of God, § 13, p. 684. What Mainstream now characterizes as supervening occurrences (the flooding of its engine shop and other major contract work antedating the Huffman proposal) were clearly evident to Mainstream when it made the offer and continued to be apparent until the moment of Huffman's acceptance. Yet, Mainstream failed to insert in its offer any clause for an extension in any eventuality. The flood therefore cannot be a legally acceptable reason for delay. In any case, it was not impossible, by any means, for Mainstream to finish the contract by September 1. The scheduling of other work, rather than spring flooding, was the basic cause of delay, and surely Mainstream cannot be heard *1368 to contend that its own excessive contracting practices constitute a legal defense to performance of those contracts. Thus, Mainstream's assertion that it should be excused from the time clause because of an act of God or other work difficulties is wholly untenable. (b) When Huffman realized that the contract would not be performed on time and acquiesced in Mainstream's continuing the work, Huffman, of course, waived the right to rescind the contract, but it did not waive a right of action for damages for the delay resulting from Mainstream's breach of contract. R. B. Boak & Co. v. U. S. Shipping Board, 11 F.2d 523 (5 Cir. 1926); Farr v. Hain S. S. Co., 121 F.2d 940 (2 Cir. 1941); Robberson Steel Co. v. Harrell, 177 F.2d 12 (10 Cir. 1949). As the Tenth Circuit succinctly stated in Harrell: "[T]he prevailing rule of wide acceptation with which we find ourselves in accord is that while acceptance of performance after breach may operate as a waiver of the right to treat the contract as terminated by the breach, such acceptance standing alone and without more does not constitute an effective waiver of the right of action for damages caused by the breach." 177 F.2d at 16. The principal cases relied upon by Mainstream, Oklahoma State Fair Exposition v. Lippett Bros., Inc., 243 F.2d 290, 292 (10 Cir. 1957) (construing Oklahoma law), and Glen Cove Marina, Inc. v. Vessel Little Jennie, 269 F. Supp. 877 (E.D.N.Y.1967) (applying maritime law), are fully supportive of the foregoing principle.[8] In the case sub judice, there was no agreement, express or implied, to extend the time for performing the contract work, and Huffman's acquiescence, which operated to minimize its damages, did not constitute an abandonment of Mainstream's obligation to finish the contract work on time. Thus, Mainstream's argument that the time clause was waived by Huffman's acquiescence is rejected. (c) The written contract contained no clause allowing for extra work, nor any provision to extend the time of performance in that eventuality. Yet the parties, at all times, did contemplate that extra work would be done. The evidence shows without dispute that Huffman, when authorizing the additional repairs, did not intend to abandon the September 1 completion date for the contract work; and Mainstream, in accepting requests for the extra work, clearly understood the shipowner's intention. Given these circumstances, we hold that the ordering of extra work, per se, did not constitute an abandonment by Huffman of the fixed date for completing the original work. To establish a complete waiver, Mainstream would have to show that the shipowner's act of ordering any extra repairs, regardless of their nature, inevitably prevented the contractor from timely performance, a burden which Mainstream has utterly failed to carry. 13 Am.Jur.2d, Building, etc. Contracts, § 48 at 51. Of course, to the extent that extra work necessarily delayed the contract performance, the time for completion was extended. (d) The central question in this case, as perceived by us, is raised by Mainstream's argument that since both parties contributed to the delay — Mainstream by not completing the contract work on schedule, and Huffman by ordering certain extra items which did necessarily take additional time — no apportionment of the delay is permissible, thus defeating the shipowner's claim for damages. This court has carefully considered this issue, bearing in mind that *1369 the majority rule, which is adhered to by the United States Supreme Court, precludes an apportionment of delay between the parties where the contract expressly provides for liquidated damages in event of delay. See Anno. 152 A.L.R. 1359 et seq. The leading case supporting the majority rule is United States v. United Engineering & Contracting Co., 234 U.S. 236, 34 S. Ct. 843, 58 L. Ed. 1294 (1914). There United Engineering entered into a contract with the government to build a drydock. The contract called for completion within seven calendar months, with a provision that the contractor pay damages at a fixed rate of $25 a day for delay. Two supplemental contracts extended the delivery date for six months, with the work being actually completed and accepted three and one-half years after the extended delivery date. It was factually determined that 240 days out of the three and one-half years' delay were attributable to the contractor and the remainder to the government. The government withheld $6,000 or $25 per day for 240 days from its final payment, claiming that it was entitled to such apportionment. Rejecting this contention, the Supreme Court held that the contractual stipulation for liquidated damages was waived by the government's conduct. Nevertheless, the Court clearly recognized that its holding did not preclude the government from recovering actual damages for the delay chargeable to the contractor. The Court emphasized that: "The rule of the original contract cannot be insisted upon, and liquidated damages measured thereby are waived. . . . Under such circumstances we think it [the government] must be content to recover such damages as it is able to prove were actually suffered." (Our emphasis). 234 U.S. at 242, 34 S.Ct. at 845. Reiterating that the government was not barred from recovering actual as distinguished from liquidated damages, the Court stated: "This principle [against apportionment] is applicable here; the conduct of the government's agents had caused the delays up to May 1, 1913, and the subsequent delays, though chargeable to the claimant, would only give rise to a claim for damages measured by the actual loss sustained." (Our emphasis). 234 U.S. at 243, 34 S.Ct. at 846. In a recent decision, Acme Process Equipment Co. v. United States, 347 F.2d 509, 171 Ct. Cl. 324 (1965), the Court of Claims had occasion to analyze the rationale of United States v. United Engineering & Contracting Co. While refusing to make an apportionment for delays in a contract providing for stipulated damages where the delay was caused by both parties, the Court emphasized that the rule of law was limited to a denial of liquidated damages and not actual damages. The Court stated in relevant part: "It [the rule against apportionment] does not deprive the Government of an opportunity to prove and recover its actual damages caused by the contractor's delay; instead, the defendant merely loses its right to insist on an artificial measure of damages agreed on by the parties for the situation in which the contractor alone is responsible for the delay." 347 F.2d at 535. The rule, of course, allows no recovery to the owner where he sustains no actual damages from the contractor's delay. Massman Construction Co. v. City Council of Greenville, 147 F.2d 925 (5 Cir. 1945). In the case sub judice, the contract has no provision for liquidated damages, and we are not called upon to apply the majority rule respecting nonapportionment which we would unhesitatingly follow, if applicable here. Instead, Huffman claims actual damages for delay supported by credible evidence, and not a sum of money specified as damages in the contract. We agree with Huffman's position that although an owner is responsible for part of the total time delay beyond the contract deadline, it may recover *1370 its actual damages for that proportion of the total delay for which the contractor, rather than itself, is responsible. Mainstream citing no persuasive authority to the contrary, we hold that, as a matter of law, the delay in this case is susceptible of apportionment. We also find from substantial evidence that the amount of delay chargeable to each party has been reasonably shown, thus enabling the court fairly to charge both the shipowner and the contractor with the amount of delay attributable to each. Surely, Mainstream cannot complain if it is credited with that portion of the delay which its own proof discloses, with reasonable certainty, was caused by Huffman's acts. Conversely, Huffman, which urges a proper apportionment, is justly treated by charging Mainstream with all delay except that portion which was caused by the shipowner's act. Using this rationale, the court apportions to Mainstream 74 days delay and to Huffman 56 days delay.[9] (e) Mainstream's last contention is that Huffman at all events must be denied recovery because of failure to prove actual damages. The principal item of damage asserted by the shipowner was for the loss of revenue sustained while the LEONARD was detained by Mainstream and out of service. Huffman was engaged in an established business of operating and chartering towboats and barges, having a fleet of four towboats, including the LEONARD, which it had owned and operated for 20 years. As heretofore found, Huffman showed, with reasonable certainty, that the daily charter rate for the vessel was $1,600, exclusive of fuel; after deducting the ordinary operating expenses from the gross fee, the vessel's daily net revenue capacity was $330.41. These calculations were based on Huffman's operating experience with the LEONARD after it was returned to service. Huffman's approach is, we think, the proper measurement for the net income lost during the period of detention by the contractor. Delta Marine Drilling Co. v. M/V Baroid Ranger, 454 F.2d 128 (5 Cir. 1972); Ove Skou v. United States, 1973 A.M.C. 1482, 478 F.2d 343 (5 Cir. 1973).[10] Mainstream nevertheless asserts that Huffman has failed to carry the burden of showing actual damages. The principal thrust of its argument is two-fold: first, that the work contemplated by the repowering contract alone would not render the LEONARD operable. This contention is refuted by evidence that none of the extra work, other than the underwater repairs, was essential to the vessel's operation, the remaining extras being only to improve an otherwise operable vessel. Second, *1371 Mainstream asserts that the sum of $330.41 cannot stand as the net daily revenue earning capacity of the LEONARD because that figure does not include deductions for the vessel's depreciation or for Huffman's administrative overhead. Admittedly, if depreciation to the LEONARD were deducted as an operating expense, the daily net earning would be reduced to $142.61; and while Huffman's overhead expense is not disclosed, the probability is that if a portion thereof were allocated to the LEONARD, the lost profits would be substantially reduced, possibly to a zero figure. Thus, Mainstream asserts vigorously that in a computation of profits in this case all expenses of every kind must be deducted, in accordance with generally accepted principles of accounting. Although there is a split of opinion among the courts as to whether fixed expenses are excludable by a plaintiff in computing loss of profits, the better view, in our opinion, is that overhead or fixed expenses, which are not affected by a breach of contract, should not be deducted in calculating the lost profits attributable to the breach. This is so because such expenses remain constant, irrespective of the breach, and nonperformance of the contract produces no overhead cost savings. Vitex Mfg. Corp. v. Caribtex Corp., 377 F.2d 795, 798 (3 Cir. 1967); Buono Sales, Inc. v. Chrysler Motors Corp., 449 F.2d 715 (3 Cir. 1971); Restatement, Contracts, § 329. See Anno. 3 A.L.R. 3d 689, 697-704, collating cases expressing both views, and n.16 at page 697. The Uniform Commercial Code is supportive of our position. Miss.Code Ann. § 75-2-708(2) (1972). We have no difficulty in holding that Huffman properly excluded overhead expenses in its computation of lost profits. We place depreciation on a towboat in the same class as a fixed overhead expense because it, too, accrues at a constant rate, regardless of whether the boat is operated or not.[11] In addition to the clearly established daily loss of profits of $330.41, Huffman incurred a direct expense for "port risk" insurance of $44.07 during the period of the vessel's detention by Mainstream. We, therefore, hold that Huffman has a valid offset of $27,711.52,[12] against Mainstream's admitted balance of $52,653.13, leaving $24,941.61 owing to Mainstream. This sum should bear interest at the rate of 6% per annum from January 10, 1974, or the day following the date of completion of all repairs. Prejudgment interest, accrued to date in the amount of $1,571.32, is properly allowable in admiralty, if not as a matter of right in contract claims, 3 Benedict on Admiralty (6th Ed.) § 419, certainly at the discretion of this court. Sinclair Refining Co. v. S. S. Green Island, 426 F.2d 260 (5 Cir. 260); Petition of Canal Barge Co., 323 F. Supp. 805, 823 (N.D.Miss.1971), modified 480 F.2d 11 (5 Cir. 1973). In addition, Mainstream is due interest of $518.21 for a delay in payment of 11 days, or from January 10 to January 21, of Huffman's admitted obligation of $282,670.59. Mainstream asserts it is also due interest on this admitted obligation from date of deposit with Clerk on January 21 until January 29. (n.1). A lapse of nine days occurred before the check, the certification of which was procured by Huffman on its bank of account, was deposited by the court Clerk in the court's registry account. We disagree that the sum represented by the *1372 check continued to bear interest until it was paid. Granted that Huffman, as the drawer, was not discharged until the certified check was paid, nevertheless, the check was negotiated by delivery to the Clerk, the named payee, and this had the effect of suspending the underlying obligation of Huffman, pro tanto, until the instrument was presented for payment. Uniform Commercial Code § 3-202(1), 3-802(1)(b); 60 Am.Jur.2d, Payment, § 45. Thus, interest claimed by Mainstream would be owing only if the check had been dishonored when presented for payment. Accordingly, let a decree be entered in favor of Mainstream against Huffman and the surety on its bond. NOTES [1] Huffman tendered to the Court Clerk its certified check for the stated amount drawn on a St. Louis bank; the Clerk deposited the check in the court's registry account on January 29; on the next day Mainstream received payment from the Clerk, and claims interest on the payment until the certified check was presented for payment. [2] By an amended complaint, Huffman increased its claim for damages for delay to $78,800. Other claims made in the amended complaint relating to items of allegedly defective gear boxes and engine realignment are reserved for separate trial under Rule 42(b), F.R.Civ.P., in accordance with the court's pretrial ruling. [3] Other bid proposals for the repowering work were received from (a) Lemont Shipbuilding and Repair Company for $356,000, with no completion time specified; (b) St. Louis Shipyard for $334,000, providing 90 days from date of acceptance to obtain the required engines, etc., with job to be completed within 4 to 5 weeks after receipt of engines and gear at the shipyard; and (c) National Marine Service for $284,995, with no completion time specified. [4] Mainstream's proposal as submitted to Huffman contained a handwritten notation that new E2 power packs, rather than rebuilt packs, would be used in the engines supplied by Mainstream. [5] This calculation of time for extra work is made by allowing 14 days for essential underwater work to the shaft and rudders, 5 days for painting and sandblasting of the hull, 21 days for enlarging the fuel tanks, and 16 days for various other items, including continuous electrical and pipe work of an extensive nature, and loss of time incident to transfer of work crews from contract work to extra work. Although Huffman authorized the underwater work in July, it did not request the fuel tank work until December. Morris conceded, reluctantly, that the underwater and fuel tank work, taken together, would cause a 16-day delay, but he was unwilling to acknowledge his actions accounted for further delay. [6] Other elements of damage for down-time contended for by Huffman but which the court rejects are: (1) $37.35 per day subsistence for Wayne Morris and his crew while stationed at Greenville. This item is disallowed because LEONARD'S crew, employed by Huffman to do other work, could have lived aboard the vessel the entire time of repair except for the extra work to the galley and boat interior ordered by Huffman. (2) Interest at $14 per day on the $60,000 downpayment, which sum Huffman temporarily borrowed from its bank. This claim is denied because upon completion of repairs, Huffman executed a long-term ship mortgage against the vessel in a gross sum covering all repairs. Huffman thus was at all times financing the cost of LEONARD'S repairs. The interest on the greater sum is, of course, deducted as an operating expense to arrive at the net revenue earning figure of $330.41. (3) $80.56 per day attributed to labor increase. This item is rejected as wholly speculative and also duplicative of labor costs included in the operating expenses deducted in order to arrive at net revenue earning capacity. (4) 1% per month for "inflation". This item is not only speculative but incomprehensible because the 1% appears to be calculated against an unknown factor. [7] Mainstream's argument that the contract does not make "time of the essence" is irrelevant since Huffman does not here seek to be relieved of an obligation to pay the contract price, but to collect damages for the delay in a fully executed contract. See 6 Williston on Contracts, 3rd Ed. § 846. [8] The court, in Glen Cove Marina, Inc., stated: "Even though a court finds that a party's delay in performance should not deprive him of his rights under the contract, he may still be required to compensate the other party for damages suffered as a result of the delay." 269 F. Supp. at 880. See 17 Am.Jur.2d, Contracts, § 388, p. 833. [9] The same result obtains whether Huffman ordered the additional work in July or December, or at any time in between. [10] Judge Wisdom, writing for the Court, in OVE SKOU: "`If the vessel is under charter and if off-hire as a result of the collision, damage to the owner can be computed by calculating the lost charter hire and deducting any savings to the owner attributable to the ship's being out of service. In other words, the ordinary operating expenses can be deducted from the charter hire and out of pocket expenses during the layup added in when arriving at proper damages.' BUE, at 917; Moore McCormack Lines v. Esso Camden, 2 Cir., 1957, [1957 A.M.C. 971,] 244 F.2d 198; Hygrade NO. 24 v. Dynamic, 2 Cir. 1956, [1956 A.M.C. 1032,] 233 F.2d 444. Where the shipowner makes no savings of operating expenses during repairs the charter price is an adequate measure of damage.'" "The general measure of the economic loss of a vessel during detention is net profit. The contract rate for rental of the vessel is a proper guide for measuring the lost income of the shipowner. Delta Marine Drilling Co. v. M/V Baroid Ranger, 5 Cir. 1972, [1972 A.M.C. 312,] 454 F.2d 128. From a gross charter price must be subtracted the ordinary expenses the shipowner would incur in earning that gross fee. Steamboat Potomac v. Cannon; Umbria, 1897, 166 U.S. 404, 421, 17 S. Ct. 610, 617, 41 L. Ed. 1053. The burden is upon the shipowner to prove the extent of damages actually sustained by him. Steamboat Potomac, 105 U.S. at 630 [26 L. Ed. 1194]; BUE, Admiralty Law in the Fifth Circuit — II, 5 Houst.L.Rev. 772, 915-20 (1968)." [11] As James B. Young, certified public accountant, testified, a towboat comparable to the LEONARD has a useful life of 16 to 18 years, and on which depreciation is taken at a constant rate over the entire period. Although Young admitted that depreciation is a deductible expense under generally accepted accounting principles, he also stated that it should not be considered in determining the true net loss to Huffman. [12] This consists of 74 days unexcused delay at $330.41 per day, totaling $24,450.34, and 74 days of port risk insurance cost at $44.07 per day, totaling $3,261.18.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2314115/

216 F. Supp. 835 (1963) The UNITED STATES of America, v. Martin SOLOMON et al., Defendants. United States District Court S. D. New York. April 15, 1963. Robert M. Morgenthau, U. S. Atty., for the United States; Charles J. Fanning, Asst. U. S. Atty., of counsel. Irving Younger, New York City, for defendant Martin Solomon. LEVET, District Judge. Martin Solomon, one of the above-named defendants, is charged in two counts with violations of Title 21 U.S.C. §§ 331(k), 333(a) and 353(b) (1); Title 18 U.S.C. § 2, in dispensing certain drugs, to wit, 35 tablets of Metandren (Methyltestosterone) and 100 tablets of D'Amphetamine Sulfate, without a prescription, etc. The defendant waived trial by jury and was tried before the court. Stipulations *836 conceded the performance but not the illegality of the acts set forth in the information. At the close of the government's case, the defendant rested and moved to dismiss the information. The charge was brought on by information (filed October 10, 1962), signed by Vincent L. Broderick, United States Attorney, who, after the resignation of his former superior, Robert M. Morgenthau, was appointed by the judges of the United States District Court, Southern District of New York, by order dated September 5, 1962, as the interim United States Attorney, pursuant to the provisions of Section 506 of Title 28, United States Code. Misdemeanors may be prosecuted by an information signed by the attorney for the government. Rule 7(a), (c), Fed.R.Crim.P. Title 28 U.S.C. § 506 is as follows: "The district court for a district in which the office of United States attorney is vacant, may appoint a United States attorney to serve until the vacancy is filled. The order of appointment by the court shall be filed with the clerk of the court. June 25, 1948, c. 646, § 1, 62 Stat. 909." Title 28 U.S.C. § 501 is as follows: "The President shall appoint, by and with the advice and consent of the Senate, a United States attorney for each judicial district. As amended Mar. 18, 1959, Pub.L. 86-3, § 11(a), 73 Stat. 9." Defendant claims that the information is invalid because the appointment of Mr. Broderick by the district court judges, pursuant to Section 506, is unconstitutional as it violates the doctrine of separation of powers. I. At the outset is the question of the timeliness of the defendant's objections to the information. Rule 12(b) (2), Fed. R.Crim.P. provides: "Defenses and objections based on defects in the institution of the prosecution or in the indictment or information other than that it fails to show jurisdiction in the court or to charge an offense may be raised only by motion before trial. * * *" Under Rule 12(b) (2) a failure of the information to charge a crime may be raised at any time during the pendency of the proceedings in the trial court (cf. United States v. Vannatta, 189 F. Supp. 937 (D.C.Hawaii 1960), where indictment was challenged on this ground the day before the trial) and even for the first time on appeal (Carlson v. United States, 296 F.2d 909 (9 Cir., 1961)). Similarly, the lack of the court's jurisdiction over the offense charged cannot be waived. See United States v. Rosenberg, 195 F.2d 583 (2 Cir., 1952). However, defects such as the duplicity of the indictment (United States v. Frank, 3 Cir., 290 F.2d 195), its undue length or a prejudicial joinder (United States v. Campisi, 306 F.2d 308 (2 Cir., 1962)) or personal jurisdiction over the defendant (United States v. Rosenberg, supra) are waived by failure to raise a timely objection. The question in this case is simply to determine whether the alleged defective signature of the United States Attorney is such as can be waived by failure to raise a timely objection. The chronology of the essential facts in this case is simple. On September 5, 1962, this court, pursuant to 28 U.S.C. § 506 appointed Vincent L. Broderick United States Attorney. This information was filed October 10, 1962. Originally, the defendant pleaded guilty to the counts, but thereafter moved to withdraw the plea. On November 20, 1962, his motion was granted and, on the same day, he entered a plea of not guilty. At the same time, Judge Weinfeld set December 3, 1962 for motions. On December 4, 1962, Mr. Broderick was superseded when Robert M. Morgenthau, who had been reappointed by the President, was sworn in as United States Attorney. The prosecution of this offense was continued under Mr. Morgenthau. On December 17, 1962, defendant's motion to suppress certain evidence was denied. On March 15, 1963, the trial was held and concluded. *837 The alleged defect, notwithstanding its alleged constitutional basis, appears to be one in the institution of the prosecution, rather than a jurisdictional defect or a failure to charge an offense. While there is no case precisely in point, analogously the periphery of the problem has not gone untouched. Thus, it has consistently been held under Rule 12(b) that any defects in the empaneling of the grand jury are waived by the defendant's failure to raise a timely objection. See Scales v. United States, 260 F.2d 21, 44-46 (4 Cir., 1958), aff'd 367 U.S. 203, 259, 81 S. Ct. 1469, 6 L. Ed. 2d 782. In Poliafico v. United States, 237 F.2d 97 (6 Cir., 1956), cert. denied 352 U.S. 1025, 77 S. Ct. 590, 1 L. Ed. 2d 597 (1957) the defendant was held to have waived the defect where he first objected to the empaneling of the grand jury at the time the petit jury was being selected. See also Moffatt v. United States, 232 F. 522, 529 (8 Cir., 1916), cited with approval in Notes of Advisory Committee on the Criminal Rules, 18 U.S.C.A. In United States v. Atlantic Commission Co., 45 F. Supp. 187 (E.D.N.C.1942), the defendant challenged the indictment on the ground it was not signed, authorized or endorsed by the United States Attorney for the district, but, rather, was signed by a Special Assistant Attorney General appointed under a statute which the defendants challenged as unconstitutional in violation of the Fifth Amendment. The court held under the circumstances "that the omission of the United States Attorney's signature is merely a formality, which does not invalidate the indictment." United States v. Atlantic Commission Co., supra at 192. See also, United States v. Sheffield Farms Co., 43 F. Supp. 1, 3 (S.D.N.Y.1942) (indictment signed by Special Assistant Attorney General); Frisbie v. United States, 157 U.S. 160, 15 S. Ct. 586, 39 L. Ed. 657 (1895). However, analogies are not identities and the defendant is correct that the subscription of an indictment by the United States Attorney is simply a certification that he will perform his statutory duty of prosecuting those indicted. While these cases are not entirely dispositive of the issue, each analogously supports the proposition that a defect such as presented here is one in the institution of the prosecution and may be waived by the lack of a timely objection. The defendant's position, "if there is no indictment or information, the prosecution must fail, for without an indictment or information no offense has been charged nor does the court have jurisdiction of the case," is somewhat conclusory. What the defendant alleges is not that there is no information, but, rather, that the information is defective because of the invalid subscription by the United States Attorney. Albeit the constitutional basis of the defendant's objection, this defect is not a failure of the information to charge a crime nor a lack of jurisdiction in the court of the offense charged. Under Rule 12(b) (2) the court "for cause shown may grant relief from the waiver." But the defendant has shown nothing to occasion the granting of such relief. "A defendant seeking an adjudication of tardily made motions has the burden of demonstrating that these motions are nonetheless made within a reasonable time because of the presence of special circumstances." United States v. Freeling, 31 F.R.D. 540, 543-544 (S.D. N.Y.1962). The information concerned with this defense appears to have been available to the defendant since the commencement of the action (cf. Scales v. United States, supra) and there is no contention that this defense could be more appropriately entered at the trial where a fuller opportunity for its presentation would be available. Cf. United States v. Shelton, 211 F. Supp. 869 (D.D. C.1962). It is difficult to conceive a defect which could more correctly be characterized as one in the institution of the prosecution than that presented urged by the defendant. Since the record makes clear that the defense was waived, Fed.R.Crim.P. 12(b), there would appear to be no need *838 to pass on the constitutional issues presented. Yet, in view of the fact that the "brooding omnipotence" of the Constitution may well alter the normally salutory rule of waiver, I shall pass to the merits. II. THE DOCTRINE OF SEPARATION OF POWERS. The general nature of the doctrine of separation of governmental powers has been stated by the United States Supreme Court: Kilbourn v. Thompson, 103 U.S. 168, 190, 26 L. Ed. 377 (1880); Springer v. Philippine Islands, 277 U.S. 189, 201, 48 S. Ct. 480, 72 L. Ed. 845 (1928). In Kilbourn, Mr. Justice Miller said supra, 103 U.S. at 190-191: "It is believed to be one of the chief merits of the American system of written constitutional law, that all the powers intrusted to government, whether State or national, are divided into the three grand departments, the executive, the legislative, and the judicial. That the functions appropriate to each of these branches of government shall be vested in a separate body of public servants, and that the perfection of the system requires that the lines which separate and divide these departments shall be broadly and clearly defined. It is also essential to the successful working of this system that the persons intrusted with power in any one of these branches shall not be permitted to encroach upon the powers confided to the others, but that each shall by the law of its creation be limited to the exercise of the powers appropriate to its own department and no other. To these general propositions there are in the Constitution of the United States some important exceptions. * * *" In Springer, Mr. Justice Sutherland wrote: "It may be stated then, as a general rule inherent in the American constitutional system, that, unless otherwise expressly provided or incidental to the powers conferred, the legislature cannot exercise either executive or judicial power; the executive cannot exercise either legislative or judicial power; the judiciary cannot exercise either executive or legislative power. * * *" (277 U.S. pp. 201-202, 48 S.Ct. p. 482.) See also J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 406, 48 S. Ct. 348, 72 L. Ed. 624 (1928). The origin of this doctrine stems from Montesquieu, Harrington, and Locke (Willis, Constitutional Law, 130 (1936)) and from Cromwell's Institute of Government (Willis, supra, at 135) and to some extent from Plato and Aristotle (Vanderbuilt, The Doctrine of the Separation of Powers and Its Present Day Significance, 38, 39 (1953)). It was endorsed by our Founding Fathers, Washington, John Adams, Jefferson and Madison (Vanderbilt, supra at 4. See also 10 Holdsworth, History of English Law, 713-716 (1938); Sharp, The Classical American Doctrine of "The Separation of Powers," 2 U.Chi. L.Rev. 385-436 (1935)). III. THE DOCTRINE DOES NOT REQUIRE THREE WATER-TIGHT COMPARTMENTS. "The written Constitution of the United States does not expressly create a separation of governmental powers. All the powers of government may be commingled by any state of the Union without a violation of the United States Constitution." Willis, Constitutional Law, 133 (1936); Dreyer v. Illinois, 187 U.S. 71, 23 S. Ct. 28, 47 L. Ed. 79 (1902). Although the powers of government under the United States Constitution are divided into the legislative, the executive and judicial, there is no complete separation of powers "by conferring the whole of any class of functions exclusively upon the department primarily empowered to exercise them and by limiting those exercisable by it to those belonging to that class." Rottschaefer, *839 Constitutional Law, 45 (1939). See also Willis, supra at 130-177. Madison, writing in The Federalist No. 47, "The Separation of Powers: I," wrote: "One of the principal objections inculcated by the more respectable adversaries to the Constitution, is its supposed violation of the political maxim, that the legislative, executive, and judiciary departments ought to be separate and distinct. In the structure of the federal government, no regard, it is said, seems to have been paid to this essential precaution in favor of liberty. The several departments of power are distributed and blended in such a manner as at once to destroy all symmetry and beauty of form, and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of other parts." (The Federalist, Wright ed. 1961, at 336) After referring to Montesquieu as the "oracle" cited on this subject and stating that Montesquieu viewed the Constitution of England as the Standard or as "the mirror of political liberty," Madison further elaborated: "On the slightest view of the British Constitution, we must perceive that the legislative, executive, and judiciary departments are by no means totally separate and distinct from each other. The executive magistrate forms an integral part of the legislative authority. He alone has the prerogative of making treaties with foreign sovereigns, which, when made, have, under certain limitations, the force of legislative acts. All the members of the judiciary department are appointed by him, can be removed by him on the address of the two Houses of Parliament, and form, when he pleases to consult them, one of his constitutional councils. One branch of the legislative department forms also a great constitutional council to the executive chief, as, on another hand, it is the sole depositary of judicial power in cases of impeachment, and is invested with the supreme appellate jurisdiction in all other cases. The judges, again, are so far connected with the legislative department as often to attend and participate in its deliberations, though not admitted to a legislative vote. "From these facts, by which Montesquieu was guided, it may clearly be inferred that, in saying `There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates,' or, `if the power of judging be not separated from the legislative and executive powers,' he did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other. His meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this, that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted. This would have been the case in the constitution examined by him, if the king, who is the sole executive magistrate, had possessed also the complete legislative power, or the supreme administration of justice; or if the entire legislative body had possessed the supreme judiciary, or the supreme executive authority. This, however, is not among the vices of that constitution. The magistrate in whom the whole executive power resides cannot of himself make a law, though he can put a negative on every law; nor administer justice in person, though he has the appointment of those who do administer it. The judges can exercise no executive prerogative, though they are shoots from the executive stock; nor any legislative *840 function, though they may be advised with by the legislative councils. The entire legislature can perform no judiciary act, though by the joint act of two of its branches the judges may be removed from their offices, and though one of its branches is possessed of the judicial power in the last resort. * * *" (pp. 337-38)[1] Hence, Madison, referring to the doctrine of separation of powers, wrote: "* * * the political apothegm there examined does not require that the legislative, executive, and judiciary departments should be wholly unconnected with each other." The Federalist No. 48, at 343 (Wright ed. 1961).[2] Madison, as Professor Malcolm P. Sharp pointedly observed, "urged that the classical statements and examples of the principle indicated that the doctrine was not to be rigidly, but flexibly, applied" and "recognized clearly that a government could operate efficiently only if it were made flexible by blending." 2 U.Chi.L.Rev. 385, 407. Chief Justice Vanderbilt of the Supreme Court of New Jersey, in 1953 wrote: "The division of government into three branches does not imply, as its critics would have us think, three watertight compartments. Montesquieu, as we have seen, knew better; the three departments, he said, must move `in concert.'" (Emphasis supplied) Vanderbilt, op. cit. supra at 50. The isolation of these powers is not intended and any completed division between departments is impossible.[3] Note, Constitutional Law, Separation of Powers, 38 Yale L.J. 114 (1928); 16 C.J.S. Constitutional Law § 105, p. 486 and cases cited. Chief Justice Vanderbilt also pointed out the many non-judicial functions performed by judges from colonial times to and including the present. Vanderbilt, The Doctrine of the Separation of Powers and Its Present Day Significance, 113-120 (1953). IV. APPOINTMENT OF A TEMPORARY PROSECUTING OFFICER DOES NOT VIOLATE THE CONSTITUTION OF THE UNITED STATES. As already appears, although the doctrine of separation of powers is a most salutary doctrine, it was never rigidly engrafted upon the Constitution. Its application, therefore, must be subordinated to the particular provisions of that *841 instrument in this instance as to methods of appointment. Accordingly, the Constitution provides that "the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." Constitution, Art. 2, § 2, Cl. 2. Thus, Congress had implemented Article 2, Section 2, Clause 2 by the passage of Section 506, Title 28 U.S.C., above quoted. In similar fashion, Congress has empowered the district courts to appoint bankruptcy referees (Title 11 U.S.C. § 62); to appoint United States commissioners (Title 28 U.S.C. § 631); clerks of the district courts (Title 28 U.S.C. § 751). The delegation of appointment of bankruptcy referees has been held constitutional under Article 2, Section 2 of the United States Constitution in Birch v. Steele, 5 Cir., 1908, 165 F. 577, 586; as to United States commissioners, see Rice v. Ames, 180 U.S. 371, 378, 21 S. Ct. 406, 45 L. Ed. 577 (1901); Go-Bart Importing Co. v. United States, 282 U.S. 344, 353, 51 S. Ct. 153, 75 L. Ed. 374 (1931); In re Circuit Ct. Com'rs, 65 F. 314 (C.C.W.D.N.C.1894); and as to clerks, In re Hennen, 13 Pet. 230, 10 L. Ed. 138 (1839). As indicated by Willis, "Appointment and removal of officers should probably strictly be regarded as executive functions; yet under state and the United States constitutions they seem to be those which may be exercised by any branch of the government." In fact, "Prior to the adoption of the United States Constitution, the appointing function was not regarded as necessarily included in the executive office; * * *." Willis, Constitutional Law 141 (1936). See also 16 C.J.S. Constitutional Law § 139, p. 640. In connection with appointments, Willis stated: "Encroachment of Judicial on Executive Department: Appointment. — By the weight of authority the legislature may vest in the courts, or judges, the appointment of officers whose selection is not otherwise provided for in the constitution. The theory of these decisions seems to be that the power of appointment is not intrinsically an executive power. A better explanation would be that in this respect the doctrine of separation of powers has been broken down. There are some contra decisions." (Emphasis supplied) (Willis, op. cit. supra at 150-51) The essential principles involved in this case were passed upon by the United States Supreme Court as long ago as 1879 in Ex parte Siebold, 100 U.S. 371, 25 L. Ed. 717 (1879). In that case a federal statute entitled, "An Act to enforce the right of citizens of the United States to vote in the several States of this Union, and for other purposes" was involved. The statute related to elections of members of the House of Representatives. One of the objections to the enforcement of the statute was that the Act of Congress imposed upon the circuit courts duties not judicial in requiring them to appoint supervisors of elections whose duties, it was alleged, were entirely executive in character. It was contended that no power can be conferred upon the courts of the United States to appoint officers whose duties are not connected with the judicial department of the government. As to this feature, Mr. Justice Bradley stated: "The Constitution declares that `the Congress may, by law, vest the appointment of such inferior officers as they think proper, in the President alone, in the courts of law, or in the heads of departments.' It is no doubt usual and proper to vest the appointment of inferior officers in that department of the government, executive or judicial, or in that particular executive department to which the duties of such officers appertain. But there is no absolute requirement to this effect in the Constitution; and, if there *842 were, it would be difficult in many cases to determine to which department an office properly belonged. Take that of marshal, for instance. He is an executive officer, whose appointment, in ordinary cases, is left to the President and Senate. But if Congress should, as it might, vest the appointment elsewhere, it would be questionable whether it should be in the President alone, in the Department of Justice, or in the courts. The marshal is pre-eminently the officer of the courts; and, in case of a vacancy, Congress has in fact passed a law bestowing the temporary appointment of the marshal upon the justice of the circuit in which the district where the vacancy occurs is situated. "But as the Constitution stands, the selection of the appointing power, as between the functionaries named, is a matter resting in the discretion of Congress. And, looking at the subject in a practical light, it is perhaps better that it should rest there, than that the country should be harassed by the endless controversies to which a more specific direction on this subject might have given rise. The observation in the case of Hennen, to which reference is made (13 Pet. 258 [10 L. Ed. 138]), that the appointing power in the clause referred to `was no doubt intended to be exercised by the department of the government to which the official to be appointed most appropriately belonged,' was not intended to define the constitutional power of Congress in this regard, but rather to express the law or rule by which it should be governed. The cases in which the courts have declined to exercise certain duties imposed by Congress, stand upon a different consideration from that which applies in the present case. * * * "In our judgment, Congress had the power to vest the appointment of the supervisors in question in the circuit courts." (supra, 100 U.S. at 397-398) In United States v. Mitchell, 136 F. 896 (C.C.D.Or.1905), the defendant attacked an indictment because the United States Attorney, who secured this indictment, was not a resident of the district, although appointed by the court. The court, however, stated, 136 F. at 906: "* * * The principle is settled that there is a presumption from the undisturbed exercise of a public office that the appointment to it is valid. In the present case it is not questioned that the court had authority to make a valid appointment to this office, and that it did appoint Mr. Heney, and that during the performance by him, as district attorney, of all the acts and things complained of, he was in the undisturbed and unquestioned exercise of that office. His right to the office cannot be attacked collaterally. Whether he is in fact ineligible to hold the office is not material to the purposes of this inquiry. He is a de facto officer, and is entitled to continue in the office until it is judicially declared by a competent tribunal, in a proceeding for that purpose, that he has no right to it. 8 Ency. of Law, 788, citing a large number of cases. * * *" (Emphasis supplied) Furthermore, the appointive power of the judiciary contemplated by Section 506 in no wise equates to the normal appointive power. First, the judiciary's power is only of a temporary nature. "[T]he appointment itself contemplates only a temporary mode of having the duties of the office performed until the President acts * * *." 16 Ops. Att'y Gen. 538, 540 (1880). Second, the exercise of the appointive power by the judiciary in no wise binds the executive. The statute clearly contemplates that the executive branch is free to choose another United States Attorney at any time, the judicial appointment notwithstanding. *843 "It was not to enable the circuit justice to oust the power of the president to appoint, but to authorize him to fill the vacancy until the president should act, and no longer." In re Farrow, 3 F. 112 (C.C.N.D.Ga.1880). "The authority given to fill the office to the circuit justice is an authority only to fill it until action is taken by the President." 16 Ops. Att'y Gen., supra at 540. The order of this court appointing Mr. Broderick, which is in effect challenged here, provides: "WE DO HEREBY APPOINT Vincent L. Broderick to serve as such Attorney of the United States * * * until the President of the United States shall fill such vacancy * * *." Both the statute and the exercise of its power here are constitutionally permissible. V. Lastly, the defendant contends that should Section 506 be found to be valid under Article 2, Section 2, Clause 2, United States Constitution, it would then provide a nexus between court and prosecutor too close to comport with due process of law. The defendant makes no contention that there was such a nexus in this case. Rather, he contends that the court, possessing the appointive power, likewise possesses removal power and it is the combination that provides an alleged nexus too close to comport with due process. Even assuming that such a nexus would prove violative of due process (cf. Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749 (1927)), the contention rests on an unfounded premise. While the normal appointive power carries with it the power of removal (In re Hennen, 13 Pet. 230, 10 L. Ed. 138 (1839)), the power in this instance is in no wise equivalent. As has already been pointed out, the President may, at any time, remove the judicially appointed United States Attorney, pursuant to 28 U.S.C. § 504. The language of subsection (b), "[e]ach United States attorney shall be subject to removal by the President * * *," clearly authorizes the executive to remove any United States Attorney, regardless of the nature of his appointment. The statutory scheme for the temporary appointment by the judiciary of the United States Attorney comports in all respects with due process of law. CONCLUSION Since I have found both that the defendant has waived the defense by failing to raise a timely objection and, in the alternative, that the statute is constitutional, I must and do find the defendant Solomon guilty. Sentence is set for May 14, 1963, at 10:00 A.M. in room 705. The customary pre-sentence report is to be prepared. So ordered. NOTES [1] Holdsworth well states: "* * * The main faults of Montesquieu's theory were that it exaggerated the sharpness of the separation; and that it failed to bring out the fact that it was the autonomy in the action and in the development of these divided, though not quite separated powers, which, by enabling them to check and balance one another, was the guarantee of liberty. * * *" 10 Holdsworth, History of English Law 721 (1938). [2] Madison in The Federalist No. 47 stated: "If we look into the constitutions of the several States, we find that, notwithstanding the emphatical and, in some instances, the unqualified terms in which this axiom has been laid down, there is not a single instance in which the several departments of power have been kept absolutely separate and distinct." (op. cit. supra at 339) It appears that at the time of the proposed adoption of the Federal Constitution there were at least seven states, to wit, New Hampshire, Massachusetts, Maryland, Virginia, North Carolina and Georgia, which had constitutional provisions requiring separation of powers. (op. cit. supra at 339-342) Yet no such provision was inserted in the United States Constitution. [3] In "redefining" the doctrine of separation of powers, Willis wrote: "* * * this doctrine can be stated as the doctrine that there are three branches of government and that each department of government has given to it and may exercise constitutionally any power, whatever its essential nature, if such power has been given to it by the people either directly by the Constitution or indirectly by the Supreme Court; that each may not exercise any powers not so given to it, irrespective of what their essential nature may be; but that at present each department exercises more of its own essential powers than any other department exercises." (pp. 176-77) (Emphasis supplied)

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2315128/

518 F. Supp. 2d 815 (2007) Jean MILLS, Personal Representative the Estate of Connie Mills, Plaintiff, v. CITY OF ROANOKE, et al., Defendants. Civil Action No. 7:07CV00220. United States District Court, W.D. Virginia, Roanoke Division. October 12, 2007. *816 Melvin E. Williams, Terry Neill Grimes, Terry N. Grimes PC, Roanoke, VA, for Plaintiff. *817 Timothy R. Spencer, Roanoke City Attorneys Office, Roanoke, VA, for Defendants. MEMORANDUM OPINION GLEN E. CONRAD, District Judge. Jean Mills, the Personal Representative of the Estate of Connie Mills, filed this civil rights action against the City of Roanoke and two officers with the Roanoke City Police Department ("RCPD"), Tracy Huff and Bobby Harman. The case is presently before the court on the defendants' motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the following reasons, the court will grant the defendants' motion. Background The following facts, which are taken from the plaintiffs complaint, are accepted as true for purposes of the defendants' motion to dismiss. See Estate Constr. Co. v. Miller & Smith Holding Co., 14 F.3d 213, 217-218 (4th Cir.1994). On July 29, 2005, Michael Holmes, a convicted felon, shot and killed Connie Mills at her home in the City of Roanoke. Approximately two months prior to this incident, Tracy Huff, while on duty as an officer with the RCPD, observed Holmes sleeping in an automobile while holding a firearm wrapped in a shirt. Holmes initially fled from Huff, but later turned himself in to the RCPD.[1] The plaintiff alleges that at all times relevant to the instant complaint, the RCPD maintained and enforced a policy of not arresting or charging felons found in possession of a firearm. Instead, the RCPD referred such cases to federal authorities for prosecution.[2] The plaintiff alleges that, pursuant to this policy, Bobby Harman directed Huff not to arrest or charge Holmes with being a felon in possession of a firearm. Thus, from the date that Huff observed Holmes in possession of a firearm through July 29, 2005, the date that Connie Mills was shot and killed, the defendants did not arrest or charge Holmes. The plaintiff alleges that had the RCPD arrested, obtained a warrant for, or sought an indictment for. Holmes, he would have been arrested and either incarcerated or placed on pretrial monitoring as of July 29, 2005. The plaintiff further alleges that as a direct and proximate result of the RCPD policy and the, actions of the defendants, Holmes remained free and without legal restraint, and thereafter shot and killed Connie Mills. Additionally, the plaintiff alleges that the risk of harm was reasonably foreseeable to the defendants. The plaintiff, Connie Mills' mother, filed this action against the defendants on April 26, 2007. In Count I, the plaintiff asserts a substantive due process claim against the defendants. In Count II, the plaintiff asserts an equal protection claim against the defendants. In Count III, the plaintiff asserts a state law claim for nonfeasance against the City of Roanoke. Discussion The defendants have moved to dismiss the plaintiffs claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure. "The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint"; such motion "does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." *818 Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir.1999) (internal citations omitted). When reviewing a claim pursuant to Rule 12(b)(6), the court must accept all of the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Id. at 244. Although "a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, ___ U.S. ___, 127 S. Ct. 1955, 1964-1965, 167 L. Ed. 2d 929 (2007). Instead, assuming the factual allegations in the complaint are true, they "must be enough to raise a right to relief above the speculative level." Id. I. Substantive Due Process Claim The plaintiff first asserts that the defendants violated Connie Mills'"substantive due process right to life" under the Fourteenth Amendment. (Compl. at 5.) To support her substantive due process claim, the plaintiff alleges that the defendants had a duty to enforce the laws, preserve the peace, and protect the citizens of the City of Roanoke, and that a foreseeable consequence of the defendants' decision not to arrest or charge Holmes was that he would use a firearm to commit additional criminal acts. The plaintiff further alleges that had the defendants arrested or charged Holmes, Mills would not have been killed. In moving to dismiss the plaintiffs substantive due process claim, the defendants argue that the claim is foreclosed by the United States Supreme Court's decisions in DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989) and Town of Castle Rock v. Gonzales, 545 U.S. 748, 125 S. Ct. 2796, 162 L. Ed. 2d 658 (2005). In DeShaney, the petitioner was a child who was beaten and permanently injured by his father, with whom the child lived. DeShaney, 489 U.S. at 191, 109 S. Ct. 998. The respondents were social workers and other local officials who received complaints that the child was being abused by his father, but did not act to remove the child from his father's custody. Id. The petitioner filed suit against the respondents, alleging that their failure to act deprived him of his liberty in violation of the Due Process Clause of the Fourteenth Amendment. Id. The Supreme Court disagreed, holding "[a]s a general matter," that "a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause." Id. at 197, 109 S. Ct. 998. In reaching this decision, the Supreme Court emphasized that "nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors." Id. at 195, 109 S. Ct. 998. "Its purpose was to protect people from the State, not to ensure that the State protected them from each other." Id. Approximately twenty-five years later, the Supreme Court decided the case of Town of Castle Rock, which involved a procedural due process claim arising from the murder of three children by their father. Town of Castle Rock, 545 U.S. at 754, 125 S. Ct. 2796. The Supreme Court was faced with the question of "whether an individual who has obtained a state-law restraining order has a constitutionally protected property interest in having the police enforce the restraining order when they have probable cause to believe that it has been violated." Id. at 750, 125 S. Ct. 2796. In attempting to answer this question, *819 the Court examined whether Colorado law gave the respondent, the children's mother, a right to enforcement of a restraining order that had been issued at her request, and ultimately determined that Colorado law did not make enforcement of restraining orders mandatory. Id. at 758-760, 125 S. Ct. 2796. The Court went on to explain that even if Colorado law gave the respondent an entitlement to the enforcement of the restraining order, it would not necessarily mean that such entitlement constituted a property interest for purposes of the Due Process Clause. Id. at 766, 125 S. Ct. 2796. The Court ultimately held that the indirect nature of the benefit conferred on the respondent as a result of the restraining order was insufficient to give rise to a protected property interest. Id. In its conclusion, the Court emphasized that "Mil light of today's decision and that in DeShaney, the benefit that a third party may receive from having someone else arrested for a crime generally does not trigger protection under the Due Process Clause, neither in its procedural nor its `substantive' manifestations." Id. at 768, 125 S. Ct. 2796. In response to the defendants' motion to dismiss, the plaintiff argues that her substantive due process claim is cognizable, under an exception to DeShaney's general rule. In DeShaney, the Supreme Court noted that "[w]hile the State may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him more vulnerable to them." DeShaney, 489 U.S. at 201, 109 S. Ct. 998. Relying on this passage, circuit courts have acknowledged that there may be possible constitutional liability when the state creates a dangerous situation or renders individuals more vulnerable to danger. Butera v. District of Columbia, 235 F.3d 637, 649 (D.C.Cir.2001) (citing decisions from every circuit). It is this state-created danger exception that the plaintiff relies on in this case.[3] The PLAINTIFF CONTENDS THAT THE DEFENDANTS created the danger by not arresting or charging Holmes. However, the state-created danger exception does not apply when officials merely fail to act. As the United States Court of Appeals for the District of Columbia Circuit explained in Butera: [T]he circuits have held that a key requirement for constitutional liability is affirmative conduct by the State to increase or create the danger that results in harm to the individual. No constitutional liability exists where the State actors had no hand in creating the danger but [simply] stood by and did nothing when suspicious circumstances dictated a more active role for them. Absent such affirmative conduct by the State to endanger an individual, courts have rejected liability under a State endangerment concept. Butera, 235 F.3d at 650 (internal citations omitted). Stated differently, "the issue is whether the officers did anything affirmative to embolden the person causing harm to another." Brooks v. Knapp, 221 Fed. Appx. 402, 407 (6th Cir.2007). "Failure to act, as opposed to affirmative conduct, does not cause a state-created danger to arise." Id. This distinction between an official's failure to act, as opposed to affirmative conduct, has been expressly relied upon by the United States Court of Appeals for the Fourth Circuit. The leading Fourth *820 Circuit; case on the state-created danger exception is Pinder v. Johnson, 54 F.3d 1169 (4th Cir.1995). In Pinder, the Court was "was faced with a case in which it had to decide the contours of DeShaney's state-created danger exception." Stevenson v. Martin County Bd. of Educ., 3 Fed.Appx. 25, 31 (4th Cir.2001). Carol Pinder's ex-boyfriend, Don Pittman, broke into her home, pushed her, punched her, and threatened to kill her and her children. Pinder, 54 F.3d at 1171. Pinder called the police, and when an officer arrived, she told him about Pittman's abusive actions and threats. Id. The officer arrested Pittman, who was hostile and unresponsive. Id. When Pinder expressed concern over the safety of herself and her children, and asked whether it would be safe for her to return to work, the officer assured Pinder that Pittman would be locked up overnight. Id. However, the officer ultimately charged Pittman with only misdemeanor offenses, and he was released on his own recognizance. Id. While Pinder was at work, Pittman set fire to her house, killing her three sleeping children. Id. Pinder filed a § 1983 action against the officer, claiming, in part, that the officer created the danger. Id. at 1175. The Fourth Circuit ultimately rejected Pinder's reliance on the state-created danger exception, and held that, "[a]s was true in DeShaney, the state did not `create' the danger, it simply failed to provide adequate protection from it." Id. The Court emphasized that "[i]n both cases, the most that can be said of the state functionaries . . . is that they stood by and did nothing when suspicious circumstances dictated a more active role for them.'" Id. (quoting DeShaney, 489 U.S. at 203, 109 S. Ct. 998); see also Stevenson, 3 Fed.Appx. at 31 ("In order to create a danger, the state has to take some affirmative steps. Liability does not arise when the state stands by and does nothing in the face of danger."). Based on the Fourth Circuit's decision in Pinder, the court concludes that the plaintiff in this case has failed to state a substantive due process claim against the defendants on the basis of the state-created danger exception. While the plaintiff alleges that the defendants created the danger by affirmatively deciding not to arrest Holmes, it is clear that the defendants took no affirmative action. Instead, the defendants failed to act. Such an "omission claim" fails as a matter of law under Pinder. Notwithstanding the Fourth Circuit's application of the state-created danger exception in Pinder, the plaintiff argues that her substantive due process claim is viable in light of decisions rendered by other circuits. However, each of the three cases on which the plaintiff relies, Reed v. Gardner, 986 F.2d 1122 (7th Cir.1993), Cornelius v. Town of Highland Lake, 880 F.2d 348 (11th Cir.1989), and Nishiyama v. Dickson County, 814 F.2d 277 (6th Cir. 1987), is factually distinguishable. In Reed v. Gardner, the Reed family suffered a tragic accident when a drunk driver crossed the center line of the highway and crashed into the family's vehicle. Reed, 986 F.2d at 1123. Earlier that day, three police officers had arrested the original driver of the car, leaving an intoxicated passenger behind. Id. The passenger became the drunk driver who caused the collision approximately two hours later. Id. The Reed family filed a § 1983 action in which they alleged, in part, that the three police officers violated their constitutional rights by creating a dangerous situation and failing to protect them from it. Id. at 1125. In dismissing the claim under Rule 12(b)(6), the district court held that the police officers did not create the dangerous situation because the original driver herself was arrested for driving while intoxicated. Id. at 1124. However, the *821 United States Court of Appeals for the Seventh Circuit reversed the district court's decision, emphasizing that the pleadings contained no allegation that the original driver was intoxicated when the officers arrested her, and that the district court erred by relying on information contained in one of the defendants' motions to dismiss. Id. Considering the plaintiffs' allegations in light of DeShaney, the Seventh Circuit distinguished the case from those in which state actors merely "stood by and did nothing when suspicious circumstances, dictated a more active role for them," and held that "[p]olice officers who remove sober drivers and leave behind drunk passengers with keys may be said to create a danger or at least render others on the road more vulnerable." Id. at 1125 (internal citations' omitted). The Court emphasized that it was the affirmative act of removing the original passenger, combined with the officers' knowledge of the passenger's intoxication, which subjected them to potential liability, and that if the officers "had failed to arrest [the original driver], `they would have had no liability if she had exchanged places with [the passenger] and he had driven headlong into the Reeds' car.'" Id. (emphasis added). Likewise, the Court noted that the plaintiffs' faced an "insurmountable hurdle on summary judgment," given the potential evidence of the original driver's intoxication, since "police officers are not subject to liability under section 1983 for exchanging one drunk driver for another." Id. As the Court explained, "[t]he reason is simple: without state intervention, the same danger would exist." Id. Affirmative conduct on the part of municipal officials was also present in the case of Cornelius v. Town of Highland Lake, which was decided shortly after De-Shaney by the United States Court of Appeals for the Eleventh Circuit. In Cornelius, the plaintiff, who served as Town Clerk, was kidnapped and terrorized by two prison inmates, while they were assigned to a community work squad program in Highland Lake. Cornelius, 880 F.2d at 349-350. The plaintiff filed a 1983 action against the Town, several municipal officials, and various members of the Alabama Department of Corrections, alleging that they violated her constitutionally protected liberty interests. Id. at 349. Evaluating the facts in light of DeShaney's state-created danger exception, the Court held that the municipal officials "did indeed create the dangerous situation of the inmates' presence in the community by establishing the work squad and assigning the inmates to work around the town hall." Id. at 356. Additionally, "the defendants increased Mrs. Cornelius's vulnerability to harm by regularly exposing her to the work squad inmates by virtue of her position of Town Clerk." Id. Such affirmative actions, coupled with the degree of control that the municipal officials exercised over the plaintiff as Town Clerk, led the Court to conclude that there was a genuine issue of material fact as to whether the officials violated the plaintiffs due process rights. Id. Finally, Nishiyama v. Dickson County involved egregious affirmative conduct on the part of the defendants. In Nishiyama, which was decided by the United States Court of Appeals for the Sixth. Circuit before DeShaney, the plaintiff alleged that the Dickson County Sheriffs "policy and practice of entrusting fully-equipped patrol cars to inmate Charles Hartman, a convicted felon, deprived their daughter of her life without due process of law." Nishiyama, 814 F.2d at 278. The Sheriff and his deputy allegedly permitted Hartman to operate a patrol car, while he was incarcerated, even though they were aware that Hartman had assaulted a young woman in the past. Id. at 279. On the night *822 that Kathy Nishiyama was murdered, Harman had full, unsupervised possession of a patrol car, after he transported the deputy to the deputy's home. Id. Hartman then began roaming the highways in three counties and stopped several motorists by flashing the car's blue lights. Id. When officials in one county learned that an inmate was stopping motorists, they contacted the Dickson County dispatcher, who, in turn, notified the Sheriff and his deputy. Id. Both officials did nothing, and in the interim, Hartman pulled over Kathy Nishiyarna and killed her. Id. Based on these allegations, the Sixth Circuit held that the plaintiffs "established a claim that the defendants' conduct under color of state law deprived Kathy Nishiyama of a constitutionally-protected interest in life." Id. at 281. In reaching this decision, the Court emphasized that "the death of Kathy Nishiyama cannot be viewed as so remote a consequence of the defendants' actions as to automatically preclude liability under section 1983. Through their established practice of entrusting the police car to Hartman, [the defendants] set in motion the specific forces that allowed him to commit his crime." Id. The affirmative acts on the part of the defendants in Reed, Cornelius, and Nishiyama are clearly distinguishable from the plaintiff's allegations in this case. As previously stated, the plaintiff's substantive due "process claim is based on the defendants' failure to arrest or charge Holmes. Such a "[f]ailure to act, as opposed to affirmative conduct, does not cause a `state-created danger' to arise." Brooks, 221 Fed.Appx. at 407. Instead, "[the defendants] must have done something affirmative to increase the harm beyond that of which they were already cognizant." Id. Given the absence of any allegations of such affirmative conduct on the part of the defendants, the plaintiffs substantive due process claim must be dismissed. II. Equal Protection Claim The plaintiff next asserts an equal protection claim against the defendants. To support this claim, the plaintiff alleges, in part, as follows: [T]he RCPD's policy and its application are at odds with the laws of the Commonwealth of Virginia, and therefore, the RCPD subjects and continues to subject persons within the City of Roanoke, including Connie Mills, to dissimilar treatment from persons located elsewhere in the Commonwealth of Virginia, who are not subjected to the risk of convicted felons in possession of firearms being free and without legal restraint to further commit criminal acts. The RCPD policy deprives all persons within the City of Roanoke, of which Mills was a member, of the equal protection of the laws and their constitutional right to be availed of the equal protection of the laws. (Compl. at 7.) In moving to dismiss this claim, the defendants argue that the plaintiffs allegations are legally insufficient, in that the defendants can only exercise control and discretion over law enforcement policies within the City of Roanoke, and that the plaintiffs allegations confirm that the defendants have treated all individuals within the jurisdiction of the City of Roanoke equally. As the defendants point out, the Equal Protection Clause of the Fourteenth Amendment states that no state shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. Const amend. XIV. § 1 (emphasis added). To state an equal protection claim, the plaintiff must allege facts which show that the defendants treated Connie Mills differently from others with whom she was similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination. Veney *823 v. Wyche, 293 F.3d 726, 730-731 (4th Cir. 2002). Although the plaintiff argues that citizens of the City of Roanoke are treated differently than citizens of other localities as a result of the RCPD policy, the Supreme Court has held that the Equal Protection Clause "relates to equality between persons as such, rather than between areas and . . . territorial uniformity is not a constitutional prerequisite." McGowan v. Maryland, 366 U.S. 420, 427, 81 S. Ct. 1101 6 L. Ed. 2d 393 (1961). As long as all individuals within the jurisdictional reach of a policy are equally affected by the policy, it does not matter that those in a different jurisdiction are not subjected to the same policy. As the Supreme Court explained in Salsburg v. Maryland, 346 U.S. 545, 74 S. Ct. 280, 98 L. Ed. 281 (1954): There is nothing in the Constitution to prevent any State from adopting any system of laws or judicature it sees fit for all or any part of its territory. If the State of New York, for example, should see fit to adopt the civil law and its method of procedure for New York City and the surrounding counties, and the common law and its method of procedure for the rest of the State, there is nothing in the Constitution of the United States to prevent it from doing so. This would not, of itself, within the meaning of the Fourteenth Amendment, be a denial to any person of the equal protection of the laws. . . . It means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in the same place and under like circumstances. Sedsburg, 346 U.S. at 551, 74 S. Ct. 280 (internal citations omitted) (emphasis added). In this case, the plaintiff alleges that "all persons within the City of Roanoke," of which Connie Mills was a citizen, were affected by the RCPD's policy of not arresting or charging felons found in possession of a firearm and instead referring such cases to federal authorities for prosecution. Because the plaintiff does not allege that Connie Mills was treated any differently from anyone within the jurisdictional reach of the RCPD policy, she has failed to state a viable equal protection claim. See Rodgers v. Johnson, 174 Fed. Appx. 3, 4 (3rd Cir.2006) (holding that the plaintiff's equal protection claim was without merit, where the plaintiff challenged Philadelphia's requirement that persons seeking to renew their gun permits must submit to fingerprinting, since all persons within Philadelphia were subject to the same requirement, and the plaintiff did not contend that he was treated differently from other similarly situated persons within Philadelphia); Slade v. Hampton Roads Regional Jail, 303 F. Supp. 2d 779, 782-783 (E.D.Va.2004) (holding that the jail does not violate the Equal Protection Clause by charging its inmates a daily fee, as permitted by Virginia Code § 53.1-131.3, even if other local jails choose not to exercise such authority, "as long as that facility applies the statute equally to all pretrial inmates under its supervision. . . . "). III. Nonfeasance Claim The plaintiffs final claim is one for nonfeasance under Virginia law against the City of Roanoke. To support this claim, the plaintiff alleges that the RCPD is charged with enforcing the laws of the Commonwealth of Virginia and protecting the citizens of the City of Roanoke; that the RCPD's failure to enforce the laws constitutes nonfeasance by the City of Roanoke; and that the City's nonfeasance resulted in Connie Mills' death. For the following reasons, the court concludes that this claim is also subject to dismissal. *824 Generally, an individual or entity has no duty under Virginia law to control the conduct of third persons in order to prevent physical harm to another. Marshall v. Winston, 239 Va. 315, 318, 389 S.E.2d 902 (Va.1990). "This is especially the case when the third person commits acts of assaultive behavior because such conduct cannot reasonably be foreseen." Id. This "general rule applies unless `(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct; or (b) a special relation exits between the actor and the other which gives to the other a right to protection.'" Id. (quoting Restatement (Second) of Torts § 315). The special relationship referenced in § 315(a) is detailed in § 319 of the Restatement (Second) of Torts. Id. "Section 319 provides that lone who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.'" Id. The Supreme Court of Virginia has held that no special relationship exists between a public official and a claimant, for purposes of § 315(b), where the claimant is merely a member of the general public to whom no distinguishable, special duty is owed. Id. at 319, 389 S.E.2d 902; see also Burdette v. Marks, 244 Va. 309, 312, 421 S.E.2d 419 (Va.1992) ("A public official cannot be held civilly liable for violating a duty owed to the public at large because it is not in society's best interest to subject public officials to potential liability for every action undertaken."). Applying these principles, the court concludes that the plaintiff has failed to state a claim for nonfeasance against the City of Roanoke. No special relationship existed between the City and Holmes, pursuant to §§ 315(a) and 319 of the Restatement (Second) of Torts, since the RCPD did not take custody of or exercise control over Holmes. Compare Fox v. Custis, 236 Va. 69, 75, 372 S.E.2d 373 (Va.1988) (holding that a parolee, who had been released from incarceration, was not in the custody of his parole officers for purposes of § 319) with Dudley v. Offender Aid and Restoration of Richmond, Inc., 241 Va. 270, 276, 401 S.E.2d 878 (Va.1991) (holding that a felon placed in a halfway house for the remainder of his sentence was in the custody of the halfway house for purposes of § 319). Additionally, the plaintiff has failed to allege facts which, if proven, would establish that Connie Mills "was an identifiable person, or a member of an identifiable class of persons, to whom the defendants owed a duty distinguishable from the duty they owed to the citizenry at large." Marshall, 239 Va. at 320, 389 S.E.2d 902. To support her claim for nonfeasance, the plaintiff relies primarily on the Supreme Court of Virginia's decision in Dudley v. Offender Aid and Restoration of Richmond, Inc. However, the facts of Dudley are clearly distinguishable from the allegations in the instant case. In Dudley, a convicted felon with a lengthy criminal record, Timothy Spencer, was permitted to serve a, portion of his sentence at a halfway house owned and operated by Offender Aid and Restoration of Richmond, Inc. ("OAR"). Dudley, 241 Va. at 272-273, 401 S.E.2d 878. The motion for judgment alleged that the halfway house was ill-kept, and that residents were essentially unsupervised, with security measures being practically nonexistent. Id. at 274, 401 S.E.2d 878. On the evening of September 19, 1987, Spencer allegedly left the halfway house, broke into Debbie Davis' apartment, raped and murdered her, and returned around 12:30 a.m. Id. Although Spencer was unaccounted for during the evening head count, OAR personnel made no inquiry into his activities. *825 Id. Spencer's absence from the halfway house without authorization was allegedly a common occurrence, and his violations of the rules went unreported, Id. at 275, 401 S.E.2d 878. Davis' family filed suit against OAR, contending that it had a duty to exercise care in its supervision of Dudley. Id. The Supreme Court of Virginia agreed. The Court held that OAR had a custodial duty over Spencer, for purposes of § 319 of the Restatement (Second) of Torts, since Spencer was actively serving a sentence, and since OAR, through its contract with the Virginia Department of Corrections, undertook responsibility to continuously supervise him. Id. at 276, 401 S.E.2d 878. The Court also held that the plaintiff alleged sufficient facts to establish that OAR knew or should have known that Spencer was likely to cause bodily harm to others unless he was controlled. Id. at 277, 401 S.E.2d 878. Finally, the Court emphasized that OAR was not a public entity, and thus, that Marshall, in which the Court limited the duty owed by public entities and officials, was "inapposite." Id. Based on the foregoing distinguishable facts, the court is unable to conclude that Dudley provides support for the plaintiffs claim for nonfeasance. As previously stated, the plaintiff's allegations establish that the RCPD did not take custody of or exercise control over Holmes. Additionally, the City of Roanoke is a public entity, and. the plaintiff does not attempt to distinguish any duty owed to Connie Mills from any duty owed to the citizenry at large. Consequently, the City had no duty to control Holmes' conduct, and the plaintiff's claim for nonfeasance must be dismissed. Conclusion For the reasons stated, the court will grant the defendants' motion to dismiss. The Clerk is directed to send certified copies of this memorandum opinion and the accompanying order to all counsel of record. FINAL ORDER In accordance with the accompanying memorandum opinion, it is now. ORDERED that the defendants' motion to dismiss shall be and hereby is GRANTED, and this action shall be STRICKEN from the active docket of the court. The Clerk is directed to send certified copies of this order and the accompanying memorandum opinion to all counsel of record. NOTES [1] Under Virginia law, possessing a firearm after having been convicted of a felony is a Class 6 felony, which is punishable by a maximum term of imprisonment of five years. See Va.Code §§ 18.2-308.2 and 18.2-10. [2] Under federal law, possessing a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g), is a felony punishable by a maximum term of imprisonment of ten years. See 18 U.S.C. § 924(a)(2). [3] The plaintiff expressly indicates in her response to the defendants' motion to dismiss that she is not relying on the second recognized DeShaney exception, which applies when the state has created a special relationship with an individual. See Pinder v. Johnson, 54 F.3d 1169, 1174-1175 (4th Cir.1995).

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2315157/

410 Pa. Super. 377 (1991) 599 A.2d 1346 COMMONWEALTH of Pennsylvania, Appellant, v. Gary Lee FRANKENFIELD, Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. John F. DREHER, Appellee. Superior Court of Pennsylvania. Submitted August 19, 1991. Filed November 12, 1991. *378 John F. Spirk, Jr., Asst. Dist. Atty., Easton, for Com., appellant (at 1282 & 1283). William F. Zaun, Public Defender, Bethlehem, for appellee (at 1282). Leonard M. Mellon, Easton, for appellee (at 1283). Before CAVANAUGH, KELLY and MONTGOMERY, JJ. PER CURIAM ORDER: This is an appeal by the Commonwealth from an order of the trial court granting appellees' motion to suppress physical evidence. In order to invoke this Court's jurisdiction to hear an appeal from a suppression order, the Commonwealth is required to certify in good faith that the suppression order substantially handicaps or terminates the prosecution. See Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985). The Commonwealth's failure to comply with this requirement subjects the appeal to being quashed. Commonwealth v. Elliott, 376 Pa.Super. 536, 546 A.2d 654 (1988); Commonwealth v. Slovikosky, 374 Pa.Super. 441, 543 A.2d 553 (1988). *379 Review of the record in the instant case, along with the Commonwealth's brief, fails to disclose a good faith certification that the order in question either terminates or substantially handicaps the prosecution. Previously, this Court has observed that the dismissal of appeals based upon the procedural defaults of counsel improperly places the burden of these errors on a non-offending party, powerless to correct such error. See Commonwealth v. Ciotto, 382 Pa.Super. 458, 461, n. 1, 555 A.2d 930, 931, n. 1 (1989); Commonwealth v. Osteen, 381 Pa.Super. 120, 125, 552 A.2d 1124, 1126 (1989). Additionally, this Court has, in the past, ordered parties to correct procedural defects in an appeal rather than imposing a more severe sanction, i.e. quashal. See e.g. Commonwealth v. Ely, 381 Pa.Super. 510, 554 A.2d 118 (1988) (rather than quash the appeal because of a defective brief, new counsel will be appointed and directed to file a brief in conformity with the rules); Commonwealth v. Zeitlen, 366 Pa.Super. 78, 530 A.2d 900 (1987) (counsel directed to file a Pa.R.A.P. 2119(f) statement missing from the brief filed on appeal). Moreover, in Commonwealth v. Carson, 510 Pa. 568, 510 A.2d 1233 (1986), our Supreme Court observed, The failure of a party to observe the orders of a court may result in a loss to a party in a civil action, because there the loss falls upon private interests and those who invoke the power of a court must be obedient to its orders or lose its powers to serve their purposes. Criminal cases involve issues of public justice; issues that transcend the immediate parties. In criminal cases, sanction may be imposed upon individuals, including counsel for either side; sanctions that vindicate the authority of the court to maintain its schedule and enforce its order. Id., 510 Pa. at 572, 510 A.2d at 1234 (emphasis added); see also Commonwealth v. DeMarco, 396 Pa.Super. 357, 578 A.2d 942 (1990). In the instant case, we do not believe the interests of public justice would be best served by penalizing the citizens of this Commonwealth for the district attorney's failure *380 to comply with an essentially pro forma requirement. This omission may be properly corrected on appeal. Accordingly, we enter the following order: ORDER And NOW, this 12th day of November, 1991, the Commonwealth is ordered to file with this Court, within fifteen (15) days a certification explaining that the suppression order substantially handicaps or will in fact terminate the prosecution. Failure to comply with this order will result in the instant appeal being quashed by this Court. Panel Jurisdiction is retained.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2315162/

518 F. Supp. 2d 1025 (2007) Luigi LOCASTO, Petitioner, v. Mary LOCASTO, f/k/a Mary Moore, Respondent. No. 07 C 1539. United States District Court, N.D. Illinois, Eastern Division. October 5, 2007. *1026 Monica Maria Tynan, Quarles & Brady LLP, Cheri Lynn Baden, Clausen Miller P.C., Chicago, IL, for Petitioner. Mitchell Bruce Katten, Joshua Richard Diller, O'Rourke, Katten & Moody, Chicago, IL, for Respondent. MEMORANDUM OPINION AND ORDER MORTON DENLOW, United States Magistrate Judge. This case comes before the Court on Respondent's motion to enforce the June 12, 2007 settlement agreement.[1] Respondent Mary LoCasto ("Mary" or "Respondent") contends the parties reached an oral agreement during the settlement conference. Petitioner Luigi LoCasto ("Luigi" or "Petitioner") argues the parties did not reach an agreement because any agreement was conditioned upon the execution of a written agreement. Petitioner further argues there was not a meeting of the minds as to a material term because he did riot agree to a release of his rights in this action. The Court holds that the parties reached aft enforceable oral agreement on all material terms including all claims raised in this case. The following constitute the Court's findings of fact and conclusions of law. To the extent certain findings of fact may be deemed conclusions of law, they shall also be considered conclusions of law. Similarly, to the extent matters contained in the conclusions of law may be deemed findings of fact, they shall also be considered findings of fact. I. FINDINGS OF FACT A. Background Facts Mary and Luigi are married, and they are the parents of Marina LoCasto, born on June 6, 1991, and Gianluca LoCasto, born on November 5, 1995[2] (the "Children"). Mary is a citizen of the United States and Luigi is a citizen of Italy. The Children were born in the United States and lived in Italy for a period of time. In August 2005, Mary and the Children returned to the United States from Italy. *1027 On March 19, 2007, Luigi filed a petition for the return of his children pursuant to the Hague Convention on the Civil Aspects of International Child Abduction ("the Hague Convention"), 42 U.S.C. § 11603, The International Child Abduction Remedies Act, A.R.S. § 25-1005, and the Uniform Child Custody Jurisdiction and Enforcement Act, 750 Ill. Comp. Stat. 36/302 (2004) ("Luigi's Petition"). Meanwhile, Mary started divorce proceedings in the Circuit Court of Cook County, Illinois, 07 D 5284 (the "Divorce Proceeding"). Pet. Resp. Ex. A. B. June 12, 2007 Settlement Conference On June 12, 2007 the parties participated in a settlement conference ("the Conference") before the Court. Mary and her counsel were present. Mitchell Katten represents Mary in this case, and Julie P. Brett represents Mary in the Divorce Proceeding. Luigi's counsel was present at the conference, and Luigi participated by telephone. Monica Tynan and Cheri Baden represent Luigi in this case, but do not represent Luigi in the Divorce Proceeding. During the Conference the parties reached an oral agreement to settle the instant action (the "Agreement"). The material terms of the Agreement are as follows: Luigi will be allowed six weeks of visitation each year with the Children. The Children will spend three to four of the six weeks of visitation with Luigi in Italy "during the summer and/or around the children's Christmas and/or Easter vacations." Resp. Mot. Ex. C, ¶ 2. Other than the prescribed visitation Mary will retain "physical possession" of the Children. Id ¶ 1. Mary will pay half of the children's round trip airfare to Italy one time per year so long as Luigi is providing child support. If Luigi is not providing child support, he will pay the total cost for the Children's trip(s) to Italy from the United States. Luigi shall notify Mary by February 1 of each year if he wants the Children to visit him in Italy or if he intends to travel to Chicago for the Children's spring visit. Luigi shall notify Mary by April 1 of each year as to the weeks he would prefer the Children visit during the coming summer and whether the visit will be in Italy or Chicago. Mary must respond by April 8. The parties have until April 15 of each year to finalize the summer visitation schedule. The children will decide when they want to visit Luigi over their Christmas break. Luigi has until October 1 of each year to communicate with the Children about this decision and to finalize their Christmas visitation schedule. The parties intend the Children's trips to Italy will be no less than ten days, although the parties will consider the Children's schedules when deciding how long each trip will be. Mary is to obtain a new passport for Marina as soon as is practically possible and to keep Luigi apprised of the developments in securing the passport. The parties will work together on determining how the visit for this summer will take place in light of the passport issue and timing. Luigi will return the Children to the United States upon the completion of each, of their visits to Italy. Mary agrees to allow Luigi full access to the Children when he comes to Chicago for the aforementioned weeks. The Agreement is only a minimum visitation agreement and the parties are free to make any additional arrangements for visitation amongst themselves. The Agreement shall remain in effect for each of the Children until the respective child reaches the age of eighteen. The parties also agreed that Luigi's Petition for return of the Children under the Hague Convention will be dismissed. The Divorce Proceeding was not included in the Agreement. The parties agreed to *1028 memorialize the Agreement in writing, but did not condition the Agreement on the execution of a written agreement. Finally, the parties agreed that this Court would retain jurisdiction over the settlement. C. Communications After the Settlement Conference On July 12, 2007, Luigi's counsel sent Mary a draft settlement agreement ("Luigi's Draft"). Resp. Mot. Ex. B. Luigi's Draft included all material terms agreed to in the Conference, including that the Agreement would release Luigi's claims under the Hague Convention. Id. ¶ 16. Luigi's counsel provided him with a copy of Luigi's Draft before they sent it to Mary, and Luigi did not object to its terms. On July 17, 2007, Mary's counsel sent Respondent a revised version of Luigi's Draft ("Mary's Draft"). Resp. Mot. Ex. C. While Mary's Draft made some slight changes to Luigi's Draft it did not alter any material terms. On August 10, 2007, Luigi's counsel sent an email to Mary stating Luigi no longer wished to settle. On August 13, 2007, Mary filed her motion to enforce the June 12, 2007 settlement agreement.[3] Following briefing, the Court heard oral arguments on the motion on September 12, 2007. On that date the parties consented to the full jurisdiction of this Court. Also on that same date, the Court gave Luigi an opportunity to file a declaration in support of his response to the motion. Luigi filed his declaration in support of his response to Respondent's motion on September, 19, 2007. In his declaration Luigi stated that during the Conference he did not understand that the Agreement would release his rights under the Hague Convention; he thought they were only agreeing on a visitation schedule. The declaration further stated it was only sometime after reading a draft of the Agreement that Luigi realized the Agreement would settle his rights under the Hague Convention, and he was not willing to agree to that. II. CONCLUSIONS OF LAW A. Jurisdiction The courts of the States and the United States district courts have concurrent original jurisdiction of actions arising under the Hague Convention. 42 U.S.C. § 11603(a). Both parties have consented to this Court's jurisdiction over this matter pursuant to 28 U.S.C. § 636(c)(1). Moreover, this Court has jurisdiction to enforce the Agreement because the Agreement's terms include the release of Respondent and the dismissal of the case without prejudice. See Dupuy v. McEwen, 495 F.3d 807, 810 (7th Cir.2007). B. Applicable Law State contract law governs the construction and enforcement of settlement agreements. Dillard v. Starcon Intl, Inc., 483 F.3d 502, 506 (7th Cir. 2007). In order for an agreement to be enforceable under Illinois law the material terms of the agreement must be "definite and certain so that a court can ascertain the parties' agreement." Id at 507. An enforceable agreement also requires "a meeting of the minds" as to all material terms. Id. at 507-08. Finally, oral settlement agreements reached during a settlement conference before a judge are enforceable under Illinois law. See Rose v. Mavrakis, 343 Ill.App.3d 1086, 278 Ill. Dec. 751, 799 N.E.2d 469, 478 (2003). C. The Agreement is Enforceable. The Court finds that the parties reached an agreement meeting the above requirements. The material terms of the *1029 agreement were "definite and certain," and there was a meeting of the minds between the parties as to all material terms. Moreover, although the parties made an oral agreement, this agreement was made before a judge and is thus still enforceable under Illinois law. 1. All Material Terms are Definite and Certain. The material terms of the Agreement are sufficiently definite and certain for the Agreement to be enforceable. Illinois law requires that for an agreement to be enforceable the material terms must be "definite and certain." Dillard, 483 F.3d at 507. In the Conference the parties agreed upon the frequency of visitations, their length, timing and location. The parties also agreed upon the procedure for establishing the visitation schedule each year and providing for the costs of the visitations. The parties also agreed that the Agreement would release the claims under Luigi's Petition. Additionally, the parties agreed on the length of the life of the Agreement/Finally, the parties agreed to memorialize the Agreement in a written document, but did not condition the Agreement upon execution of a written document. These terms were then memorialized in both Luigi's Draft and Mary's Draft, and there were no material differences between Luigi's Draft and Mary's Draft. The minor differences in the drafts do not prevent the Court from determining what the parties agreed to on June 12, 2007.[4] Therefore, the Agreement's material terms are sufficiently definite. 2. There was a Meeting of the Minds. The parties reached a meeting of the minds as "to all material terms. An enforceable agreement requires "a meeting of the minds" as to all material terms. Dillard, 483 F.3d at 507-08. Whether there was a meeting of the minds is determined by the parties' objective conduct, not their subjective beliefs. Id. Luigi contends there was no meeting of the minds regarding the release of his claims in this case. It was clear to the Court and to the parties and their counsel that this litigation was being settled. Both Luigi and his counsel discussed with Mary that the agreement would release Mary from Luigi's claims under the Hague Convention. Luigi's objective actions after the Conference also suggest he understood the Agreement would settle the claims raised in his Petition. Almost a month after the Conference, on July 12, 2007, Luigi's counsel sent Luigi's Draft to Mary. Luigi's counsel showed this draft to Luigi before sending it to Mary. The preamble to Luigi's Draft stated that the Agreement settled and compromised "all claims set forth in this case. and alleged in [Luigi's] Petition." Resp. Mot. Ex. B. And paragraph sixteen of Luigi's Draft stated "that in consideration of the terms set forth in this Agreement, Luigi LoCasto will dismiss his petition for return of the children under the Hague Convention." Resp. Mot. Ex. B. Luigi's Draft clearly defined the terms to which Luigi agreed. Yet despite being presented with this draft by his counsel, Luigi did not express that the draft did not match his understanding of what was discussed at the Conference. It was not until *1030 August 10 that Luigi first sought to back out of the agreement. This was almost two months after the Conference and nearly one month after Luigi was presented with a draft of the Agreement by his counsel. It is irrelevant that Luigi's counsel informed Mary's counsel they had no authority to discuss the Divorce Proceeding. The Agreement did not settle any claims in the Divorce Proceeding. This was accurately memorialized in both Mary's Draft and Luigi's Draft. Both drafts state the Agreement covers the claims contained in Luigi's Petition, and neither draft refers to the Divorce Proceeding. In light of Luigi's conduct during the Conference, and the fact that his counsel prepared the first draft of the Agreement, the Court finds that Luigi's objective conduct demonstrated an understanding on his part that the Agreement would settle his claims under the Hague Convention. The Court looks to the objective outward expressions of Luigi and Mary to determine if an agreement was reached. The two drafts make it clear that an oral agreement was reached on all material terms of the contract. 3. The Oral Nature of the Agreement Does Not Render it Unenforceable. The oral Agreement is enforceable. Oral settlement agreements are enforceable under Illinois law, Dillard, 483 F.3d at 506, unless prohibited by the Statute of Frauds. Lynch, Inc. v. SamataMason, 279 F.3d 487, 490 (7th Cir.2002). When parties reach an agreement before a judge during a court-mandated settlement conference, that agreement is exempt from the Statute of Frauds. See Rose, 799 N.E.2d at 478. The Seventh Circuit has stated that under such circumstances, the Court should state the terms of the agreement on the record and have the parties acknowledge on the record that they agree to those terms. Lynch, 279 F.3d at 490. However, the fact that a judge did not insist the agreement be recorded will not invalidate the agreement if neither party asks that any part of the discussion be recorded. Id. at 491. Furthermore, the fact that parties anticipate a more formal future written agreement will generally not nullify an otherwise binding agreement. See Abbott Labs. v. Alpha Therapeutic Corp., 164 F.3d 385, 388 (7th Cir. 1999). However, where the parties intend a written agreement as a condition precedent to an agreement, an oral agreement will not be binding. See Id. at 388-89. In this case, the parties reached the agreement in the Court's presence and it is therefore exempt from the Statute of Frauds. Furthermore, despite Luigi's belated assertion to the contrary, the parties did not condition their oral agreement on the execution of a written document. Instead, they merely agreed to memorialize the agreement in writing. Therefore, the oral agreement reached during the Conference is enforceable. See Dillard, 483 F.3d at 509. III. CONCLUSION The material terms of the Agreement were sufficiently definite and certain for the Court to determine the parties' agreement. The parties' objective outward expressions at the Conference demonstrated that there had been a meeting of the minds on all material terms. The Agreement is not barred by the Statute of Frauds because it was made before the Court in a court supervised settlement conference. For the reasons set forth in this opinion, the Court grants Respondent's motion to enforce the settlement agreement. The parties are given to and including October 18, 2007 to sign the Settlement Agreement and to deliver an executed form of Agreed Order of *1031 Dismissal. In the event this does not occur, the Court hereby declares the Settlement Agreement prepared by Respondent's counsel (Exhibit C to the Motion to Enforce) is binding on the parties and the Court will enter the Agreed Order of Dismissal agreed to by the parties at the settlement conference. SO ORDERED. NOTES [1] The settlement conference was held on June 12, 2007. The June 16 date found in the motion was corrected on its face to reflect the June 12 date. [2] In Exhibit C of her motion to enforce Mary states that Gianluca LoCasto was born on May 11, 1995, but in her answer and affirmative defenses she states that he was born on November 5, 1995. Resp. Mot. Ex. C; Resp. Answer, ¶ 7. The difference does not impact the Court's decision. [3] As noted above the motion was corrected on its face to reflect the June 12 date. [4] Specifically the difference in the parties' drafts in paragraph 16 with respect to the legal form of dismissing Luigi's claims against Mary under the Hague Convention does not render the Agreement indefinite in its terms. See Wilson v. Wilson, 46 F.3d 660, 667 (7th Cir.1995); Dillard, 483 F.3d at 508 ("the parties' actions do not suggest the points of dispute over the written agreement were material"); Resp. Mot. Ex. B; Resp. Mot. Ex. C.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/1913761/

705 So.2d 208 (1997) Elisha ALKAZIN, Norman Alkazin and Lana Alkazin v. CITY OF BATON ROUGE, Parish of East Baton Rouge, Allstate Insurance Company and Billy Cheek. No. 97 CW 0738. Court of Appeal of Louisiana, First Circuit. November 7, 1997. *209 Randolph Piedrahita, Rick A. Caballero, Baton Rouge, for plaintiffs-appellees Elisha Alkazin, Norman Alkazin and Lana Alkazin. Barry G. Toups, Baton Rouge, for third party defendant State of Louisiana, DOTD. James Zito, Baton Rouge, for defendants-appellants City of Baton Rouge, Parish of East Baton Rouge. Billy Cheek, Greenwell Springs, in pro. per. Before LOTTINGER, C.J., GONZALES, J., and TYSON, J. Pro Tem.[1] RALPH E. TYSON, Judge Pro Tem. Relator, City of Baton Rouge/Parish of East Baton Rouge, filed a writ application with this court, seeking review of the trial court's granting of respondents', Elisha Alkazin and her parents (Norman and Lana Alkazin), motion to proceed without a jury. PROCEDURAL HISTORY On November 27, 1992, Elisha Alkazin was injured in an automobile accident at the intersection of Florida Boulevard and North 22nd Street in Baton Rouge, Louisiana. On April 20, 1993, Elisha Alkazin and her parents, Norman and Lana Alkazin, (collectively referred to as "respondents") filed suit against their uninsured/underinsured motorist carrier, Allstate Insurance Company, the driver of the other vehicle, Billy Cheek, and City of Baton Rouge/Parish of East Baton Rouge (relator). The respondents alleged that relator was the owner/garde/custodian of a defective traffic light, which simultaneously gave two opposing vehicles a green light. The respondents further alleged that the relator was negligent in failing to inspect and/or maintain the traffic light. Relator filed an answer on July 13, 1993, and a third party demand against the other driver on June 22, 1995. On May 17, 1996, the relator filed a request for a trial by jury. In the request, relator alleged that on May 10, 1996,[2] the governor signed House Bill No. 239 of the 1996 Legislative Session. Relator further alleged that, by this bill, every political subdivision of the State of Louisiana may request a trial by jury by general ordinance or resolution, waiving the prohibition against a jury trial, pursuant to LSA-R.S. 13:5105(A). Respondents filed a motion to proceed without a jury, on May 29, 1996. A hearing on the motion to proceed without a jury was held on August 5, 1996. Following the hearing, the trial court rendered a judgment in favor of respondents, granting their motion to proceed without a jury. *210 Relator filed this writ application, contending that the trial court erred in denying relator a jury trial and in granting respondents' motion to proceed without a jury. Subsequently, respondents filed a motion to dismiss relator's writ application, which was denied on September 2, 1997 by this court. By order, dated August 22, 1997, this court granted relator's application for writs, issued a writ of certiorari, and stayed all proceedings until further order of the court. HISTORY OF LSA-R.S. 13:5105 Before addressing relator's contentions, we must review the history of LSA-R.S. 13:5105. In 1975, the legislature enacted LSA-R.S. 13:5105, which prohibited a jury trial in suits against the state. LSA-R.S. 13:5105 provided that "[n]o suit against the state or a state agency or political subdivision shall be tried by jury." See Abercrombie v. Gilfoil, 205 So.2d 461, 464 (La.App. 1st Cir.1967). By Acts 1993, No. 993, LSA-R.S. 13:5105 was amended to provide as follows: A. No suit against a political subdivision of the state shall be tried by jury. Except upon a demand for jury trial timely filed in accordance with law by the state or a state agency or the plaintiff in a lawsuit against the state or state agency, no suit against the state or a state agency shall be tried by jury. B. Whenever a jury trial is demanded by the state, state agency, or the plaintiff in a lawsuit against the state or state agency, the party demanding the jury trial shall pay all costs of the jury trial including the posting of a bond or cash deposit for costs in accordance with Code of Civil Procedure Articles 1733 through 1734.1, inclusive. By Acts 1995, No. 598, § 1, the legislature again amended LSA-R.S. 13:5105 and added subsection C, which provides as follows: Notwithstanding the provisions of Subsection A, except upon demand for jury trial timely filed in accordance with law by the city of Baton Rouge or the parish of East Baton Rouge or the plaintiff in a lawsuit against the city of Baton Rouge or the parish of East Baton Rouge, no suit against the city of Baton Rouge or the parish of East Baton Rouge shall be tried by jury. The rights to and limitations upon a jury trial shall be as provided in Code of Civil Procedure Articles 1731 and 1732. Upon enacting LSA-R.S. 13:5105 C in 1995, the legislature did not provide for a specific effective date. Acts 1995, No. 598 contained only one section, namely § 1, which set forth the enactment of subsection C to LSA-R.S. 13:5105. Since the legislature did not provide a specific effective date, the general effective date of all laws enacted at the 1995 Regular Session was August 15, 1995, in accordance with LSA-Const. art. 3, § 19.[3]See Adams v. City of Baton Rouge, 95-2515, p. 13 (La.App. 1st Cir. 4/30/96), 673 So.2d 624, 632-33. By Acts 1996, No. 63, § 1, the legislature again amended LSA-R.S. 13:5105 and added subsection D, which provides as follows: Notwithstanding the provisions of Subsection A, a political subdivision, by general ordinance or resolution, may waive the prohibition against a jury trial provided in Subsection A of this Section. Whenever the jury trial prohibition is waived by a political subdivision, and a jury trial is demanded by the political subdivision or the plaintiff in a suit against the political subdivision or against an officer or employee of the political subdivision, the demand for a jury trial shall be timely filed in accordance with law. The rights to and limitations upon a jury trial shall be as provided in Code of Civil Procedure Articles 1731 and 1732. *211 Upon enacting LSA-R.S. 13:5105 D in 1996, the legislature set forth a specific effective date for Act No. 63 in Section 3 of the Act. Act No. 63 provides, in pertinent part, as follows: Section 3. This Act shall become effective upon signature by the governor or, if not signed by the governor, upon expiration of the time for bills to become law without signature of the governor, as provided in Article III, Section 18 of the Constitution of Louisiana. If vetoed by the governor and subsequently approved by the legislature, this Act shall become effective on the day following such approval. Act No. 63 was approved by the Governor on May 9, 1996. Thus, the effective date for LSA-R.S. 13:5105 D is May 9, 1996. The legislature did not address its intent regarding the prospective or retrospective application of LSA-R.S. 13:5105 D. Thus, we must now determine whether LSA-R.S. 13:5105 D is entitled to prospective or retrospective application. RETROACTIVITY OF LSA-R.S. 13:5105 D This court has previously addressed the issue of the prospective or retrospective application of LSA-R.S. 13:5105 C. In Blanchard v. City Parish of East Baton Rouge, La., 95-2011, p. 13 (La.App. 1st Cir. 4/30/96), 674 So.2d 317, 325, and Adams v. City of Baton Rouge, 95-2515, p. 17 (La.App. 1st Cir. 4/30/96), 673 So.2d 624, 635 this court held the following: ... LSA-R.S. 13:5105 C establishes the procedure in a suit against the state, a state agency, or a political subdivision of the state, namely whether that action may be tried before a judge or a jury. Because the statute addresses the mode or means of the trial, it is a procedural matter, which does not affect any vested rights, and, therefore, may be applied retroactively. See Jones v. City of Kenner, 338 So.2d [606, 608 (La.1976)]; Carter v. City of New Orleans, 327 So.2d [488, 491 (La.App. 4th Cir.1976)].... Thus, this court determined that LSA-R.S. 13:5105 C could be applied retroactively to allow the City of Baton Rouge/Parish of East Baton Rouge to request a jury trial when the cause of action arose prior to the amendment. After reviewing LSA-R.S. 13:5105 subsection D, we find that subsection D is simply an extension of subsection C. Subsection D allows any political subdivision, as opposed to just the City of Baton Rouge or Parish of East Baton Rouge, the right to demand a trial by jury, notwithstanding the provisions of subsection A. Like subsection C, we find that subsection D also sets forth the procedure in a suit against a political subdivision, namely, whether that action may be tried before a judge or jury. Thus, we conclude that subsection D is also procedural because it addresses the mode or means of trial and does not affect any vested rights, and, therefore, may be applied retroactively. TIMELINESS OF REQUEST OF JURY TRIAL Having determined that LSA-R.S. 13:5105 D may be applied retroactively, we must determine whether this relator is entitled to request a trial by jury pursuant to subsection D and if so, whether its request was filed timely. Relator contends that the trial court erred in failing to find the 1996 amendment to LSA-R.S. 13:5105 created a second method for relator to request a trial by jury. Relator further contends that its request for a trial by jury was filed within ten (10) days of the effective day of the 1996 amendment to LSA-R.S. 13:5105 and was timely within the contemplation of LSA-C.C.P. art. 1733. The courts have recognized the absolute and inviolate right of party to a juridical cause to a trial by jury, except as limited by law and provided the requisite procedural forms are fulfilled. Revel v. Telecheck Louisiana, 581 So.2d 405, 407 (La.App. 4th Cir.), writ denied, 588 So.2d 1116 (La.1991). While the right to a jury trial is fundamental, it must be requested timely. Sharkey v. Sterling Drug, Inc., 600 So.2d 701, 705 (La.App. 1st Cir.), writ denied, 605 So.2d 1099, 1100 (La.1992). Thus, when a party makes a timely request and complies with the other procedural requisites, his right to a jury trial cannot be violated. Revel v. Telecheck Louisiana, 581 So.2d at 407. The right of a *212 litigant to a jury trial is fundamental in character, and the courts will indulge every presumption against a waiver, loss, or forfeiture thereof. Champagne v. American Southern Insurance Company, 295 So.2d 437, 439 (La.1974). LSA-C.C.P. art. 1733 C provides that "[t]he pleading demanding a trial by jury shall be filed not later than ten days after either the service of the last pleading directed to any issue triable by a jury, or the granting of a motion to withdraw a demand for a trial by jury." If a request for a jury trial is not made timely, the right is waived, and the trial judge is vested with much discretion to disallow the filing of amended pleadings, if he finds that they are being filed solely for the purpose of circumventing the time limitations of LSA-C.C.P. art. 1733. Sharkey v. Sterling Drug, Inc., 600 So.2d at 706. In the instant case, relator filed a request for a jury trial on May 17, 1996. In its request, relator alleged that the governor signed Act No. 63 of the 1996 Legislative Session on May 10, 1996. Relator further alleged that Act No. 63, which provides that a political subdivision may request a trial by jury, was effective upon the governor's signature, and this motion for trial by jury was filed within ten (10) days of the effective date of the Act. Respondents filed a motion to proceed without a jury on May 29, 1996, contending that relator's request for trial by jury was untimely. At the hearing on the motion to proceed without a jury, the trial court determined that relator had a right to a jury trial arising on August 15, 1995, and did not file a request for a jury trial on or before August 25, 1995; thus, forfeiting its right to a jury trial. The trial court stated that "although the court acknowledges the recent amendment to LSA R.S. 13:5105 providing for the [] right to a trial by jury for political subdivisions, the court finds that this amendment does not vitiate defendant[s'] (relator) failure to timely request a trial by jury after passage of the 1995 amendment." We disagree. In the instant case, relator not only falls squarely within the parameters of subsection C, but also falls within the parameters of subsection D because of its status as a political subdivision. In addition, subsection D does not specifically exclude the application of its provisions to the City of Baton Rouge or the Parish of East Baton Rouge (relator). We find that if the legislature intended to exclude the application of subsection D to relator, it would have expressly done so in subsection D. Thus, pursuant to subsection D, relator is entitled to a trial by jury in this matter. Relator's request for a trial by jury was filed on May 17, 1996. Attached to relator's writ application was a copy of relator's Resolution 36859, adopted May 8, 1996 by the Metropolitan Council, waiving the prohibition against a jury trial in suits against the City of Baton Rouge/Parish of East Baton Rouge, as provided in LSA-R.S. 13:5105 A.[4] Although Resolution 36859 was not filed into the record, we take judicial notice of the resolution pursuant to LSA-C.E. art. 202. Based upon these facts, relator's request for trial by jury was filed within ten (10) days of the effective date (May 9, 1996) of the 1996 amendment adding LSA-R.S. 13:5105 D. Thus, we conclude that the trial court erred in granting respondents' motion to proceed without a jury. CONCLUSION For the above reasons, the writ of certiorari previously issued by this court is recalled and the writ granted is made peremptory. *213 The trial court judgment, granting the respondents' motion to proceed without a jury, is reversed, and the matter is remanded to the trial court for further proceedings consistent with views expressed herein. WRIT GRANTED AND MADE PEREMPTORY. JUDGMENT GRANTING REQUEST TO PROCEED WITHOUT A JURY REVERSED AND CASE REMANDED. LOTTINGER, C.J., concurs. NOTES [1] Judge Ralph E. Tyson is serving as judge pro tempore by special appointment of the Louisiana Supreme Court. [2] We note that House Bill No. 239 was approved on May 9, 1996 not May 10, 1996. [3] LSA-Const. art. 3, § 19 provides as follows: All laws enacted during the regular session of the legislature shall take effect on August fifteenth of the calendar year in which the regular session is held and all laws enacted during an extraordinary session of the legislature shall take effect on the sixtieth day after final adjournment of the extraordinary session in which they were enacted. All laws shall be published prior thereto, in the official journal of the state as provided by law. However, any bill may specify an earlier or later effective date. [4] Resolution 36859, provides, in pertinent part, as follows: WHEREAS, it was the clear intent of the Legislature to allow the City of Baton Rouge and Parish of East Baton Rouge to waive the prohibition against jury trials by its enactment of Act No. 598, without the necessity for further ordinance or resolution; however, to avoid confusion in further and pending litigation, it would be in the best interest of the City-Parish to comply with the provisions of House Bill No. 239 out of an abundance of caution; and WHEREAS, it is in the best interest of the City of Baton Rouge and Parish of East Baton Rouge to waive the prohibition against jury trials in litigation against this political subdivision and to authorize the Parish Attorney to waive the prohibition against jury trials by demanding same in any pending lawsuit or any future lawsuit as he deems appropriate.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2317770/

430 F. Supp. 2d 544 (2005) Gladys C. COOLEY, Plaintiff, v. Porter J. GOSS, Director of Central Intelligence, et al., Defendants. No. 1:04-CV-01052-LMB. United States District Court, E.D. Virginia, Alexandria Division. March 15, 2005. *545 Gladys C. Cooley, Annandale, VA, Pro se. Kevin J. Mikolashek, United States Attorney's Office, Alexandria, VA, for Defendants. MEMORANDUM OPINION BRINKEMA, District Judge. Before the Court is one remaining issue in defendant's Motion to Dismiss the pro se plaintiff's six-count Complaint, which essentially alleges discrimination under Title VII, 42 U.S.C. § 2000e, on the basis of race, gender and national origin, and a failure by the CIA to comply with the Freedom of Information Act("FOIA").[1]*546 In her Complaint, plaintiff seeks lost wages, savings, pension funds and job opportunities between 2001 and 2003, the period during which she was attempting to become employed by the CIA; lost earnings from missed grade and step increases; damage to her good name and professional reputation; and pain and suffering due to anxiety, humiliation and embarrassment. The Complaint seeks compensatory damages of $300,000, punitive damages of $250,000 and attorneys' fees.[2] Plaintiff, is a 50-year old, black female of Hispanic heritage and a naturalized United States citizen, who twice received conditional, offers of employment for human resources positions with the CIA. The CIA eventually rescinded both offers because of information that arose during investigations into plaintiff's suitability and background. Defendant is Porter Goss, Director of the CIA, whom plaintiff has sued in his official capacity,[3] and who has filed his Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). In the portion of defendant's Motion to Dismiss that is addressed in this Opinion, defendant contends that plaintiff failed to exhaust her administrative remedies under Title VII. Plaintiff has submitted not only an Opposition but also a brief in response to defendant's Reply, termed "Plaintiff s Opposition to Defendants' Second Motion to Dismiss." Although this last filing is not properly before the Court, because plaintiff is pro se, the Court did read and fully consider it. On January 7, 2005, the Court heard oral argument on defendant's Motion to Dismiss and issued an Order dismissing all but plaintiff's Title VII discrimination claims. The Court took those claims under advisement and ordered plaintiff to provide supplemental documentation regarding whether she is entitled to a waiver of the deadline for contacting an EEO counselor. I. Factual Background[4] At the heart of this civil action is plaintiff s three-year attempt to gain employment with the CIA as a human resources professional, a position she felt would build on her extensive experience as a personnel manager, human resources and office administrator, and recruitment coordinator at three area law firms, two of which were large, prominent firms. Plaintiff first received a conditional offer from the CIA for employment as a G-14 human resources officer on March 20, 2000. In, or around, March 2001,[5] the CIA revoked the offer *547 based on information gathered during its investigation into plaintiff's suitability and background. Plaintiff appealed this decision. In response, the CIA reversed the decision on January 30, 2003,[6] and extended plaintiff another conditional offer of employment on February 26, 2003. However, on June 3, 2003, the CIA informed plaintiff by letter that she had again been found "unsuitable" for employment "based on information that [she] provided or was otherwise revealed during [her] processing."[7] The Complaint before this Court stems from this second rejection. After the CIA rescinded the second conditional offer, plaintiff initiated the FOIA process on June 10, 2003, by requesting a copy of her investigative file. On July 3, 2003, .the Office of Security informed her that she had misdirected her letter and provided her with the proper address, where she sent her request on July 7, 2003. On July 25, 2003, plaintiff received notice that the CIA had accepted her request but could not process it within the requisite 20 days because of a backlog. As a result, the letter informed her that she had a right to treat the promised delay as a denial, which she could appeal to the Agency Release Panel, or she could wait for the records and appeal any alleged deficiency after receiving the CIA's substantive response to her FOIA request. Plaintiff did not appeal the effective denial. On June 2, 2004, the CIA released a set of documents to plaintiff and specified in an accompanying letter the statutes under which it had withheld others. The letter also advised plaintiff of her right to appeal the withholding of those documents to the Agency Release Panel within 45 days, but plaintiff again did not do so. This failure to exhaust administrative remedies is the basis for the Court's previous dismissal of plaintiff's FOIA claims. Regarding the discrimination claims, plaintiff first notified the CIA of her intent to file a complaint with the EEO on December 14, 2003, 194 days after the CIA informed her that she was unsuitable for employment. The Office of Security, which plaintiff had approached regarding where to direct correspondence concerning her discrimination complaint, referred plaintiff to an EEO counselor, whom plaintiffs attorney, Francis X. Lillis, contacted on January 21, 2004. After speaking with Lillis, the EEO counselor sent plaintiff forms that she was required to complete within 15 days to initiate her complaint. After first not receiving any response from plaintiff and then receiving a letter, rather than the completed forms, the EEO agreed to extend the 15-day deadline for plaintiff to submit her paperwork, which she did on March 15, 2004. On April 20, 2004, having reviewed plaintiff's allegations of gender, race, and national origin discrimination,[8] the EEO sent plaintiff notice *548 of her right to file a formal discrimination complaint. Plaintiff's attorney filed the formal complaint on April 30, 2004. On June 17, 2004, the EEO dismissed plaintiff's formal complaint as untimely because plaintiff had not contacted an EEO counselor within 45 days of the action she alleged to be discriminatory. Plaintiff filed the instant action within 90 days of receiving that adverse decision, in accordance with the appeal rights provided to her by the EEO. The issue before the Court is whether the EEO erred in dismissing plaintiff's admittedly untimely complaint on the ground that she did not contact an EEO counselor within 45 days of the allegedly discriminatory actions. At oral argument, plaintiff maintained that the EEO had granted her a waiver of this deadline and allowed her to file her claim out of time. To give plaintiff a full opportunity to support her waiver claim, the Court ordered plaintiff to provide an affidavit from the attorney who handled her EEO complaint regarding his communications with the EEO and any alleged promise by the EEO staff to waive the 45-day requirement. On January 31, 2005, Lillis filed his affidavit. On February 14, 2005, defendant filed a Supplemental Memorandum in Support of Defendant's Motion to Dismiss, which included the affidavit of Julie L. Lund, Counselor/Investigator for the EEO, and on February 17, 2005, plaintiff filed a Response to Defendant's Supplemental Memorandum in Support to [sic] Motion to Dismiss. II. Discussion The EEO must dismiss a Title VII complaint as untimely if the complainant did not adhere to strict filing deadlines, unless the complainant can demonstrate that she should benefit from a waiver, estoppel or equitable tolling. 29 C.F.R. § 1614.604(c); see, e.g., Zografov v. V.A. Med. Center, 779 F.2d 967, 969-70 (4th Cir.1985). Under the regulations that apply to discrimination actions against a federal employer, the complainant must first initiate contact with an EEO counselor within 45 days of the allegedly discriminatory action. 29 C.F.R. § 1614.105(a). Next, if given written permission after one or more interviews with a counselor, the complainant must file the paperwork required to initiate a formal complaint within 15 calendar days. 29 C.F.R. § 1614.106(a),(b); see Blount v. Shalala, 32 F. Supp. 2d 339, 341 (D.Md.1999). The Fourth Circuit has noted that the regulations regarding Title VII discrimination complaints put an onus on employers to make employees aware of the 45-day deadline and require the EEO to waive the deadline if an employee can demonstrate that she had neither actual nor constructive notice of the time limit. 29 C.F.R. §§ 1614.102(b)(6), 105(a)(2); see Jakubiak v. Perry, 101 F.3d 23, 26-28 (4th Cir.1996) Nealon v. Stone, 958 F.2d 584, 589-90 (4th Cir.1992). Regarding the mandatory waiver, the regulation reads in relevant part: The agency or the Commission shall extend the 45-day time limit . . . when the individual shows that he or she was not notified of the time limits and was otherwise not aware of them, that he or she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the counselor within the time limits, or for other reasons considered sufficient by the agency or Commission. § 1614.105(a)(2). However, the burden of proving a lack of such notice lies with the complainant. Id.; see also Nealon, 958 F.2d at 589-90. *549 For the reasons set forth below, despite the regulation's mandatory language, the Court finds that plaintiff has not met her burden of proving lack of notice and accordingly is not entitled to a waiver of the 45-day deadline.[9] A. Standard of Review A plaintiff appealing a final decision of an agency or the Equal Employment Opportunity Commission is entitled to a de novo review of that decision in district court.[10] 42 U.S.C. § 2000e-16(c); Kornman v. Baker, 686 F. Supp. 812, 813 (N.D.Cal.1988). Because the EEO dismissed plaintiffs complaint on procedural grounds and did not rule on the merits of her claims, the only issue before this Court is whether the EEO's dismissal of plaintiff's complaint as untimely was proper or whether the EEO should have granted her a waiver of the 45-day deadline. See Barnes, 118 F.3d at 408. B. Evidence Before the EEO Although in the Complaint and at oral argument plaintiff suggested that her attorney had requested and been granted by the EEO a waiver that would allow her untimely complaint to be considered on the merits, the affidavits of Lillis and Lund demonstrate that no such request or promise was made. In his affidavit, Lillis explains that he contacted the EEO sometime after his first consultation with plaintiff on December 8, 2003, after which the EEO sent plaintiff a letter instructing her to call the office. Instead, Lillis himself called the EEO on plaintiff's behalf and spoke with Lund, who then sent EEO forms to plaintiff. However, Lillis acknowledges that "[a]t no time did I ask that the 45 day time period be extended," and he also does not suggest that Lund offered such an extension. (Lillis Aff. at 2.) Consistent with this representation, Lund states in her affidavit that the EEO offered to extend only the 15-day deadline for plaintiff to return the paperwork necessary to initiate a complaint, after plaintiff first sent the EEO a letter in lieu of completing the forms as required. (Lund Aff. ¶ 3, 4.) Lund also confirms that Lillis did not request a waiver of the 45day deadline for contacting a counselor and that she did not grant such a waiver. Id. at ¶ 5. To the extent that plaintiff asserts that by allowing her additional time to file her paperwork, the EEO waived its right to deny her claim for untimely counselor contact, "it is well settled that a federal agency does not waive its right to object to untimely filings merely by accepting a complaint for investigation." Blount, 32 F.Supp.2d at 341. Lillis's attempt to explain why plaintiff should have been entitled to a waiver of the 45-day deadline despite not having *550 sought one from the EEO is unavailing. He explains that he did not request such a waiver because the applicable regulation states that the agency "shall" extend the deadline when a complainant "shows that he or she was not notified of the time limits and was not otherwise aware of them," an exception that plaintiff claims should apply in her case.[11]See 29 C.F.R. § 1614.105(a)(2). However, even though the regulation upon which plaintiffs former counsel relies is mandatory, not discretionary, the complainant still bears the burden of proving that she was not notified or otherwise aware of the 45-day deadline. See id.; Nealon, 958 F.2d at 589-90. In this case, plaintiff has not presented any evidence either that she attempted to explain in her EEO complaint why she waited more than six months after the allegedly discriminatory action before contacting the EEO counselor or that she requested a waiver of the 45-day deadline. Accordingly, this Court finds that based on the record before it, the EEO properly dismissed plaintiffs complaint as untimely and did not err in not granting her a waiver of the 45-day deadline. C. New Arguments and Evidence Presented To This Court As noted above, the Court extended its review of whether plaintiffs circumstances warranted a waiver of the deadline to consider arguments that she appears to have advanced before this Court but not before the EEO. Primarily, plaintiff now argues that she should benefit from a waiver of the 45-day requirement because the CIA never made her aware of the deadline. She also blames her delay in contacting an EEO counselor on the CIA's untimely processing of her FOIA request. Finally, plaintiff complains that the letter rescinding the second conditional offer stated that the decision was "not subject to appeal" and claims that she was deterred by that statement from filing a claim of discrimination.[12] Defendant responds that these arguments are insufficient to justify the six-month gap between the rejection of plaintiffs second employment application and her initial contact with the EEO. Specifically, defendant contends that plaintiff had constructive knowledge of the deadline for contacting the EEO because of her earlier dealings with the complaint process, pointing to a quote in plaintiffs Opposition that appears to reference an EEO publication that also would have discussed the relevant deadlines. As such, defendant argues, plaintiff had constructive, if not actual, knowledge of the deadline, which is all that the regulation requires. Plaintiff responds in her supplemental filing that she recently read that EEO publication on the Internet and that she never received communications regarding the EEO process during her appeal of the first rejection because the decision was reversed through the CIA's internal appeals process. *551 As noted above, the applicable regulation requires the EEO to grant a waiver when "the individual shows that he or she was not notified of the time limits and was otherwise not aware of them." 29 C.F.R. § 1614.105(a)(2) (emphasis added). Defendant has not produced evidence that refutes plaintiff's contention that the CIA failed to provide her with actual notice of the 45-day deadline. However, on the basis of plaintiff's employment history and demonstrated knowledge of the channels through which she could assert her rights as an unsuccessful job applicant, the Court concludes that plaintiff possessed at least constructive notice of the procedure for filing a discrimination claim and therefore does not qualify for a waiver under the regulations. First, in her Complaint in this action, plaintiff makes much of her long and successful history as a human resources professional. She describes herself as "a highly experienced human resources professional, with over 15 years [sic] experience in human resources management [who] possesses extensive HR education and training, and holds two Masters degrees, one in Human Resources Management from George Washington University." (Compl. ¶ 4.) In keeping with this experience, the two conditional offers she received from the CIA were for Level 14 human resources positions. The Court finds untenable the contention by a human resources professional who has worked in the personnel departments of two major law firms that she was not aware of the most basic requirements for filing a Title VII discrimination claim. Although plaintiff's direct experience was in the private sector, her graduate degree and knowledge of parallel private sector actions would have put her on notice that strict procedural requirements, including filing deadlines, would govern the filing of a discrimination complaint against a federal agency. Second, although plaintiff's first appeal was resolved through internal CIA channels and thus did not require contact with an EEO counselor, her success in pursuing that appeal demonstrates to the Court that plaintiff was aware of and sufficiently savvy to pursue her rights as an unsuccessful job applicant. This successful appeal also undercuts plaintiff's argument that she was deterred from filing a complaint by the letter that stated that she could not appeal the decision to rescind her second offer. Plaintiff's discrimination complaint with the EEO was not an appeal of the decision itself but a separate action regarding alleged discrimination that sought remedies in addition to the reinstatement of the offer. At no time, either in the rejection letter or otherwise, did the CIA advise plaintiff or even imply that she could not file a Title VII complaint based on the process underlying the hiring decision. Moreover, having successfully appealed the CIA's decision to rescind its first conditional offer on the ground that her background investigation was flawed, plaintiff cannot now argue that she believed she was forbidden from raising allegations that the CIA rescinded her second conditional offer of employment on an improper basis. Finally, plaintiff's contention that only upon receiving legal advice from Lillis in December 2003 did she consider filing a discrimination compliant is contradicted by evidence that on June 25, 2003, still within the 45-day period for contacting an EEO counselor, she contacted an attorney from one of the law firms at which she had worked requesting advice about how to seek redress for the CIA's alleged discrimination *552 against her.[13] Plaintiff's correspondence with this attorney confirms both her consideration of a possible discrimination complaint and access to significant resources regarding the proper means for addressing any allegedly discriminatory actions.[14] Plaintiff also attempts to justify her request for a waiver on the basis of the second provision of the regulation, which mandates that the agency grant relief from the deadline when a complainant shows that he or she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred [or] that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the counselor within the time limits. 29 C.F.R. § 1614.105(a)(2). Along these lines, plaintiff argues that she was unable to file her complaint sooner because the CIA did not timely respond to her FOIA request. However, this argument is unavailing for two reasons. First, plaintiff did not appeal either the CIA's determination that it would be unable to fulfill her FOIA request on time or its subsequent production of only a portion of the documents she requested. Second, and more important, she informed the EEO of her intention to file a complaint on December 14, 2003, more than six months before she received any documents as a result of her FOIA request, and she filed her formal complaint on April 30, 2004, still almost two months before the CIA released any documents to her. Clearly, then, her lengthy delay in contacting an EEO counselor was not caused by the withholding of information by the CIA, as she demonstrated well before receiving the documents her knowledge of the facts that she alleged in her EEO discrimination complaint. For all of these reasons, the Court finds that plaintiff had at least constructive notice of the 45-day deadline for contacting an EEO counselor and has not demonstrated circumstances beyond her control that prevented her from meeting this requirement. As such, plaintiff has not carried her burden of proving that she should be granted a waiver of the deadline. Accordingly, even considering the additional arguments plaintiff has raised before this Court regarding her failure to initiate contact with an EEO counselor within 45 days of the allegedly discriminatory actions, the Court finds that plaintiff's discrimination claims must be dismissed because she failed to exhaust her administrative remedies. *553 III. Conclusion For the foregoing reasons, defendant's Motion to Dismiss will be GRANTED. An appropriate Order will issue. The Clerk is directed to forward this Memorandum Opinion to counsel of record and the pro se plaintiff. NOTES [1] The six-count Complaint also alleges (1) violations of the First and Fourth Amendments for disparate treatment based on race, age, sex, national origin and naturalized citizen status, (2) the deprivation of rights under the Fifth Amendment and 42 U.S.C. §§ 1985 and 1986, (3) age discrimination, (4) defamation per se and (5) intentional infliction of emotional distress. After oral argument on defendant's Motion to Dismiss, the Court dismissed all but the Title VII counts, finding that the other counts listed above were pled under inapplicable statutes or constitutional provisions and essentially comprised employment discrimination claims for which plaintiff may seek relief only under Title VII. See Brown v. General Servs. Admin., 425 U.S. 820, 835, 96 S. Ct. 1961, 48 L. Ed. 2d 402 (1976). The Court dismissed the FOIA count because plaintiff failed to exhaust her administrative remedies by not appealing the CIA's responses to her FOIA request upon either of two opportunities she was given to do so. [2] The Complaint first requests the appointment of counsel and, in the alternative, attorneys' fees. However, barring extremely exceptional circumstances, which do not apply here, plaintiff is not entitled to appointed counsel or attorneys' fees. See Bond v. Blum, 317 F.3d 385, 398-99 (4th Cir.2003). [3] Plaintiff also sued numerous other CIA employees, in both their official and individual capacities, whom she concedes were not properly served. However, because Director Goss is the only proper defendant with regard to the claims properly before this Court, the adequacy of service on the other defendants is irrelevant. See Lissau v. S. Food Serv., Inc., 159 F.3d 177, 180-81 (4th Cir.1998). [4] The facts set forth below are derived from the Complaint and its attachments. [5] The Complaint and supporting documents do not clearly establish when this first offer was rescinded. The March date is stated in plaintiff's attorney's affidavit and defendant's Motion. Because the Complaint does not directly involve this first conditional offer, the exact date of its rescission is not relevant to the resolution of the issues before the Court. [6] Plaintiff successfully argued on appeal that the decision to rescind the offer was based on erroneous information. [7] Plaintiff makes much of a statement in the letter that the decision was not based on security concerns and that she could represent to others that she had not failed a security clearance. She later complains repeatedly that she was wrongfully not made aware of a CIA policy that candidates for the positions for which she was being considered are disqualified for having foreign national relatives, which she does. However, because the only issue before the Court is whether plaintiff failed to exhaust her administrative remedies, this Opinion will not address the merits of plaintiff's EEO complaint. See Barnes v. Levitt, 118 F.3d 404, 408 (5th Cir.1997). [8] Plaintiff was not allowed to file a claim of reprisal because she did not file a complaint with the EEO after her first rejection, so there were no EEO proceedings for which the CIA could have been retaliating. [9] Missing among the many exhibits attached to the Complaint filed in this Court is a copy of the complaint plaintiff filed with the EEO. The only records before the Court from plaintiff's proceedings before that body are the "Request to Begin Precomplaint Counseling" and the final decision dismissing her complaint as untimely, neither of which suggests that plaintiff provided any explanation for her delay in contacting the counselor or filing the complaint. The affidavit of plaintiff's attorney also suggests that plaintiff's EEO complaint did not contain a request or justification for a waiver. However, in undertaking a de novo review of the pro se plaintiff's claims, the Court has considered the justifications that she appears to have advanced for the first time before this Court. [10] Title VII's procedural requirements promote the resolution of as many claims as possible at the agency level. As such, the administrative exhaustion requirement allows for judicial review of only final agency decisions. 42 U.S.C. § 2000e-16(c); see, e.g., Frank v. England, 313 F. Supp. 2d 532, 536 (D.Md.2004). [11] Lillis relies on MICHAUD v. POTTER, No. 01A03448, 2002 WL 31153257 (E.E.O.C. Sept. 18, 2002), to support his argument that plaintiff, as a non-government employee, should be granted a waiver because the CIA did not inform her of the 45-day deadline. That case addresses a different factual scenario, which is especially important given the fact-based nature of the waiver analysis. Most notable, the plaintiff in MICHAUD, unlike the plaintiff before this Court, had attempted to file a complaint 17 days after the allegedly discriminatory action and had merely misdirected the correspondence to the local Equal Employment Opportunity Commission, rather than submitting it to the agency's EEO. See id. at *2. [12] As discussed above, plaintiff also maintains that the EEO granted her an oral waiver of the deadline; however her attorney's affidavit belies this contention. [13] The attorney, Elizabeth Rindskopf Parker, who was at that time Dean of the University of the Pacific Law School, is also a former partner at one of the firms for which plaintiff worked and former General Counsel for the CIA. In a two-page letter detailing her grievances, plaintiff suggested that she had been discriminated against by the CIA official who rescinded her offer, whom she claimed "appear[ed] to . . . discriminate against single women with children." (Compl.Ex. F.) She sought from Parker "assistance with this retaliatory and discriminatory matter," (Compl. ¶ 31) including suggestions on how to seek redress for the retraction of the second conditional employment offer, names of individuals to contact in that regard and even direct assistance from Parker. Parker responded on July 12, 2003, that she was about to leave on a trip and would contact plaintiff the next week. On July 17, 2003, Parker responded that she did not believe plaintiff was likely to succeed in challenging the CIA bureaucracy but also gave plaintiff the names of two well-connected attorneys whom she suggested might be able to help. [14] Also on June 25, 2003, plaintiff sent essentially the same letter to numerous Members of Congress, again requesting assistance addressing what she alleged to be a discriminatory hiring process.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2317797/

430 F. Supp. 2d 580 (2006) Clyde CHAMBERS v. JOSHUA MARINE, INC. Civil Action No. 04-2667. United States District Court, E.D. Louisiana. April 26, 2006. *581 Jean Albert Ouellet, Perrin, Landry, Delaunay, Dartez & Ouellet, Lafayette, LA, for Clyde Chambers. Georges M. Legrand, Clarence William Emory; Mouledoux, Bland, Legrand & Brackett, LLC, New Orleans, LA, Philip Francis Cossich, Jr., Brandon J. Taylor, David Allen Parsiola, Cossich, Sumich & Parsiola, LLC, Belle Chasse, LA, for Joshua Marine, Inc. PORTEOUS, District Judge. Before the Court is a Motion for Summary Judgment [Doc. 23] filed on behalf of Defendant, St. Paul Fire & Marine Insurance Company. This matter was submitted for the Court's consideration with oral argument on January 11, 2006. The Court, having reviewed the arguments of counsel, the Court record, the law and applicable jurisprudence, is fully advised in the premises and ready to rule. ORDER AND REASONS I. PROCEDURAL BACKGROUND Plaintiff, Clyde Chambers ("Chambers"), initially filed suit against Joshua Marine, Inc. ("Joshua Marine") and subsequently filed a First Supplemental and Amending Complaint with the evident intent to bring a direct action claim against St. Paul Fire & Marine Insurance Company ("St.Paul") pursuant to LA R.S. 22:655. St. Paul, then, filed this Motion for Summary Judgment, pursuant to Federal Rule of Civil Procedure 56, stating that St. Paul's policy does not provide coverage for the claim that is the subject of this litigation and thus, Plaintiff's direct action against St. Paul should be dismissed with prejudice. Joshua Marine filed an Opposition to St. Paul's Motion for Summary Judgment, arguing that the basis of St. Paul's Motion is flawed, and St. Paul has a duty to provide Joshua Marine with both liability coverage and an appropriate defense for the alleged accident, which forms the basis of this action. II. BACKGROUND On April 14, 2004, Plaintiff, Clyde Chambers, was employed as a Project Manager by Baker Energy. Baker Energy was performing contract work for Panaco. In connection with that work, plaintiff was riding on the CAPTAIN BRUNO (Official Number 590415), a 45 foot, Coast Guard inspected crewboat, owned and operated by Joshua Marine, Inc., which was providing transportation in connection with the Panaco project. This case involves a claim for a broken ankle sustained by Plaintiff, while riding as a passenger on the CAPTAIN BRUNO. At the time of the accident, movant, St. Paul, had in full force and effect its Charter Boat Policy of insurance No. SFG0001943 naming Joshua Marine as an insured. H. LAW AND ANALYSIS A. Law on Summary Judgment The Federal Rules of Civil Procedure provide that summary judgment should be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to *582 any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The party moving for summary judgment bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show there is some doubt as to the material facts. The nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) (emphasis added). Thus, if the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial and summary judgment is appropriate. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). B. St. Paul's Arguments In Support of Its Motion for Summary Judgment St. Paul argues that there is no possibility that reasonable minds could conclude that St. Paul's policy afforded coverage to Joshua Marine because according to St. Paul, Joshua Marine breached several conditions or express warranties that it was bound by, when it accepted the policy. St. Paul states that the established standard in American maritime law is that representations made by an insured in a contract of marine insurance are subject to the standard of uberrima fides, or "utmost good faith." Sun Mutual Insurance Co. v. Ocean Insurance Co., 107 U.S. 485, 510, 1 S. Ct. 582, 27 L. Ed. 337 (1883). This doctrine requires the insured to disclose to the underwriter all material facts affecting the risk. Sun Mutual, at 510, 1 S. Ct. 582. Sun Mutual states the test of materiality as the importance of a particular fact, "to the underwriter as likely to influence his judgment in accepting the risk." 107 U.S. at 509-10, 1 S. Ct. 582. The duty is "independent of the intention and is violated by the fact of concealment even where there is no design to deceive." Id. An assured's agreement to comply with the express warranties in the policy meets the materiality test because it contributes significantly to the underwriter's decision to insure the risk and how to set the premium. Therefore, the breach of an express warranty, for example, an express warranty of seaworthiness in a marine insurance policy, automatically suspends coverage under the policy. Aguirre v. Citizens Casualty Co. of New York, 441 F.2d 141 (5th Cir.1971). Where coverage is suspended as a result of a breach of a warranty of seaworthiness, the question of whether the seaworthiness proximately caused or contributed to the loss is irrelevant. Id., citing Gulfstream Cargo, Ltd. v. Reliance Insurance Co., 409 F.2d 974 (5th Cir.1969). Likewise, the fact that the unseaworthy condition is transitory is irrelevant, because coverage is suspended during the tenure of the unseaworthy condition. Id. St. Paul's claim is that, at the time of the accident, Joshua Marine was in material breach of several express warranties contained in St. Paul's policy No.SFG0001943. Specifically, the CAPTAIN BRUNO was being operated in clear violation of express warranties in Section I, the General Conditions, of the policy, namely: the Seaworthiness Warranty; the Licensed Captain Warranty and; the Persons on Board Warranty. Therefore, St. Paul *583 states that the policy was suspended during the period of breach and does not provide coverage for this claim. 1. Seaworthiness, Licensed Captain, and Persons on Board Warranties; Named Operator Endorsement The Seaworthiness Warranty states: Warranted at the inception of the policy that the vessel shall be in a seaworthy condition and thereafter, during the currency of this policy, you shall exercise due diligence to keep the vessel seaworthy. Seaworthy means the vessel shall be kept, in all respects; fit, tight, properly manned, equipped, supplied and in a navigable condition for its intended use and be operated and maintained in full compliance with all Coast Guard and local laws and regulations. It is undisputed that the CAPTAIN BRUNO carried more than six passengers and was not being operated by a licensed captain. Coast Guard regulations require that a "small passenger vessel" carrying six (6) or more passengers, or an "uninspected vessel" that carries less than six passengers, be operated by a licensed captain. (46 U.S.C. Subtitle II, Part F, Chapter 89, § 8902 and 8903). According to St. Paul, having the vessel operated in accordance with all Coast Guard regulations materially affected the underwriter's decision to insure this risk; so much so that it was made an express warranty in the policy. Thus, St. Paul contends that the CAPTAIN BRUNO was not properly manned at the time of the accident, nor was it being operated in compliance with all Coast Guard and local laws and regulations, which, by definition, meant that the vessel was unseaworthy at the time of the accident. The Licensed Captain Warranty states: Warranted that while the craft is engaged in a commercial venture, a licensed captain will be aboard the vessel at all times. The Licensed Captain Warranty does not specifically require the licensed captain to be at the controls at all times, but St. Paul argues that, construing the policy as a whole, it is clear that the parties' agreement was that the vessel was to be operated by a Coast Guard-licensed captain when the vessel was carrying passengers for hire as it was at the time of the accident. Captain Glenn Davis admitted that he permitted Troy M. Randazzo, a Baker production operator, to operate the vessel without verifying that he had a valid license or even asking Randazzo if he had one. St. Paul claims that this breach of the Licensed Captain Warranty precludes coverage. The Named Operator Endorsement states in pertinent part: Named Operator means the Named Insured and any other person, so designated by the Named Insured and approved by Us, to operate the insured watercraft. Named Operators approved to operate the insured watercraft are listed on the Named Operator Schedule included with this endorsement. It is hereby warranted that all coverage provided under this policy is null and void when the insured watercraft is operated by anyone other than those persons listed on the Named Operator Schedule. The Named Operator Schedule includes Captain Davis, but does not include Randazzo. St. Paul contends that the clear and unambiguous language of the endorsement makes all coverage under the policy null and void in the event of its breach, at least during the period of the breach. The Persons on Board Warranty states: *584 Warranted that a maximum of eight people will be carried on board, of which no more than six shall be passengers, while the insured watercraft is engaged in a commercial venture. There were at least eleven persons aboard the vessel at the time of the accident, ten of whom were passengers. Materiality is demonstrated by the fact that this was made the subject of an express warranty in the policy. Finally, St. Paul points to its Liability Coverage Exclusions, which states in pertinent part: We will riot cover loss or expense arising from: -Fines, penalties, punitive damages or exemplary damages. Therefore, to the extent that the Complaint raises a claim for punitive or exemplary damages, St. Paul argues that coverage for that claim is specifically and explicitly excluded by the clear and unambiguous terms and conditions of the policy. C. Joshua Marine's Opposition to Motion for Summary Judgment Joshua Marine's position is that this matter is governed by Louisiana law, not Maritime law, and that the circumstances surrounding the accident and the charter boat policy are replete with issues of fact and ambiguities which warrant the upholding of coverage, not just a denial of St. Paul's Motion for Summary Judgment. Joshua Marine states that if Louisiana law applies, it calls for denial of St. Paul's motion regardless of whether or not warranties were actually breached, and, even if federal law applies, St. Paul's Motion for Summary Judgment should be denied because St. Paul cannot prove any breach of warranty absent genuine issues of material fact and policy ambiguities. The bulk of St. Paul's argument is based on Federal law, specifically relying on the doctrine of uberrimae fidei, which holds that the utmost good faith on behalf of the insurer is required. However, the Supreme Court has concluded that the regulation of marine insurance is, in most instances, properly left with the states. Wilburn Boat Co. v. Fireman's Fund Insurance Co., 348 U.S. 310, 75 S. Ct. 368, 99 L. Ed. 337 (1955). While the mere breach of a warranty is sufficient to void coverage under uberrimae fidei, Louisiana law requires not only breach of a warranty, but also intent to deceive. IV. COURT'S ANALYSIS The Fifth Circuit held in Albany Ins. Co. v. Anh Thi Kieu that "the interpretation of a contract of marine insurance is— in the absence of a specific and controlling federal rule—to be determined by reference to [the] appropriate state law." 927 F.2d 882, 886 (5th Cir.1991), (quoting Ingersoll-Rand Financial Corp. v. Employers Ins. of Wausau, 771 F.2d 910, 912 (5th Cir.1985)). In Albany, a maritime insurance case that originated in Texas, the Fifth Circuit held that the state of Texas' insurance laws applied and not the federal maritime rule of uberrimae fidei. Id. In making that determination, the Court weighed three factors: (1) whether the federal maritime rule uberrimae fidei constitutes "entrenched federal precedent;" (2) whether the state has a substantial and legitimate interest in the application of its law; and (3) whether the state's rule is materially different from the federal maritime rule. Id. In consideration of the first factor, the Fifth Circuit stated that "none of the opinions of the Fifth Circuit which have cited the uberrimae fidei doctrine authoritatively have concluded that the doctrine applies to the exclusion of state law." Id. For that *585 matter, no Fifth Circuit opinion has ever explicitly authorized the application of the uberrimae fidei doctrine to invalidate a marine insurance policy. Id. The Court further stated, "the uberrimae fidei doctrine, in sum, is a rule which this Court has recognized, but never applied. We therefore conclude . . . that the uberrimae fidei doctrine is not `entrenched federal precedent.'" Id. Secondly, the Albany Court also found that Texas had a "substantial and legitimate interest in the application of its law." Id. The "regulation of insurance relationships, including marine insurance relationships, has historically been a matter of state concern." Id. at 888 (citing Wilburn Boat Co., 348 U.S. at 316, 75 S. Ct. at 371). The Court concluded that "states are far better equipped to balance the risks that each party to an insurance contract endures." Id. Similarly, this Court holds that Louisiana has a substantial and legitimate interest in the application of its' own insurance laws. The final factor delineated by the Fifth Circuit in Albany is whether the state's rule is materially different from the federal maritime rule. Id. The Fifth Circuit took notice of Texas' insurance law in that "an assured's misrepresentations may invalidate the policy of insurance, but only if the insured intended to deceive the insurer." Mayes v. Massachusetts Mutual Life Ins. Co., 608 S.W.2d 612, 616 (Tex.1980). "Texas law, unlike federal law, imposes an appropriate limitation that relatively minor misstatements which the insured did not intend to make do not afford the insurer an excuse to refuse payment." Albany at 889. The fundamental nature of both laws, however, is the same. Texas insurance law shares the concern of federal maritime law that an assured should not profit from her material misrepresentations to the underwriter. Id. Likewise, Louisiana's law is very similar to that of Texas' in that a misrepresentation will not defeat or void the contract unless that misrepresentation or warranty is made with the intent to deceive. Louisiana Revised Statute 22:619(a) states, "no oral or written misrepresentation or warranty made in the negotiation of an insurance contract, by the insured or in his behalf, shall be deemed material or defeat or void the contract or prevent it attaching, unless the misrepresentation or warranty is made with the intent to deceive." V. CONCLUSION This Court agrees with Defendant that Louisiana law, and not Federal Maritime law, should apply in this matter. Therefore, a mere breach of a warranty is not enough to void coverage. To the contrary, St. Paul must prove that Joshua Marine had an intent to deceive in addition to the breach of any warranty. It is the holding of this Court that, based on the evidence provided at this time, there are genuine issues of material fact that are best resolved by the trier of fact after all the testimony has been heard and all the evidence presented. Specifically, there are issues of material fact regarding whether certain warranties were actually breached, and, if so, whether an intent to deceive was present. Accordingly, IT IS ORDERED that the Motion for Summary Judgment [Doc. 23] filed on behalf of St. Paul Fire & Marine Insurance Company, be and the same is hereby DENIED.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2324997/

240 F. Supp. 2d 793 (2002) Arthur HICKEY, Petitioner, v. James SCHOMIG, Warden, Pontiac Correctional Center, Respondent. No. 02 C 2443. United States District Court, N.D. Illinois, Eastern Division. July 16, 2002. Arthur Dale Hickey, Pontiac, IL, pro se. Eric S. Palles, Chicago, IL, Gary Jay Ravitz, Ravitz & Palles, P.C., Chicago, IL, for Arthur Dale Hickey. Colleen M. Griffin, Illinois Atty. General's Office, Chicago, IL, for James Schomig. *794 MEMORANDUM OPINION AND ORDER KENNELLY, District Judge. On April 4, 2002, Arthur Hickey, who was convicted of murder in an Illinois court and sentenced to death, see People v. Hickey, 178 IU.2d 256, 227 Ill. Dec. 428, 687 N.E.2d 910 (1997) (direct appeal); People v. Hickey, ___ Ill.2d ___, ___ N.E.2d ___, 2001 WL 1137273 (Ill. Sept. 27, 2001) (post-conviction appeal), filed a notice of his intention to file a petition for habeas corpus in this Court pursuant to 28 U.S.C. § 2254. The notice, which stated that Hickey would file his petition on or before December 3, 2002, presumably was filed as a predicate to Hickey's motion (filed the same date) seeking appointment of counsel to represent him in the anticipated habeas corpus proceedings. The Court granted Hickey's motion for appointment of counsel shortly after it was filed. See 21 U.S.C. § 848(q)(4)(B). The next document the Court received in Hickey's case was an ex parte motion pursuant to 21 U.S.C. § 848(q)(8) & (10), filed June 12, 2002, seeking to have his counsel appointed to represent him in connection with an anticipated state clemency petition and also to compensate counsel for that work. The Court directed Hickey's counsel to serve the motion on the Illinois Attorney General and directed the Attorney General to respond. The Attorney General has now objected to the motion. For the reasons stated below, the Court denies Hickey's motion. Section 848 establishes enhanced penalties for persons who engage in a "continuing criminal enterprise," specifically the commission of a continuing series of violations of the federal narcotics laws, undertaken as an organizer, supervisor, or manager of a group of five or more persons, from which the defendant obtains substantial income or resources. The statute authorizes imposition of a death sentence in certain circumstances for the commission of a murder connected with a continuing criminal enterprise. Id. 848(e). Subsection 848(q)(4)(A), which was adopted in 1988, provides for the appointment of counsel and other necessary services for persons charged with federal capital offenses. Id. § 848(a)(4)(A). Subsection (q)(4)(B), adopted in 1988 along with § 848(q)(4)(A), provides that [i]n any post conviction proceeding under section 2254 or 2255 of Title 28, seeking to vacate or set aside a death sentence, any defendant who is or becomes financially unable to obtain adequate representation of investigative, expert, or other reasonably necessary services shall be entitled to the appointment of one or more attorneys and the furnishing of such services in accordance with paragraphs (5), (6), (7), (8), and (9). 21 U.S.C. § 848(q)(4)(B). Subsection (8), referenced in § 848(q)(4)(B), states than any attorney appointed under § 848(q)(4)(A) or (B) shall represent the defendant throughout every subsequent stage of available judicial proceedings, including pretrial proceedings, trial, sentencing, motions for new trial, appeals, applications for writ of certiorari to the Supreme Court of the United States, and all available post-conviction process, together with applications for stays of execution and other appropriate motions and procedures, and shall also represent the defendant in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant. 21 U.S.C. § 848(q)(8) (emphasis added). Section 848(q)(10) provides that "[c]ompensation shall be paid to attorneys appointed under this subsection" at amounts provided *795 by law. Id. § 848(q)(10) (emphasis added). The plain language of § 848(q)(8) requires counsel appointed for a habeas corpus petitioner who is under a state-imposed death sentence to represent the petitioner in connection with a later-filed petition seeking clemency from the state's authorities. There is no other way to read the statute; it unambiguously refers to representation in "proceedings for executive or other clemency," and it contains no language limiting this to federal clemency proceedings. The context of section 848(q)(8) likewise makes it abundantly clear that it applies to habeas corpus petitioners pursuing state clemency relief following their federal habeas petition; the provision was enacted as part of a statute that in plain terms requires the appointment of counsel to represent petitioners in cases brought under 28 U.S.C. § 2254, a statute that in equally plain terms applies to (and only to) "person[s] in custody pursuant to the judgment of a State court." Thus when Congress required attorneys appointed for § 2254 petitioners to pursue "proceedings for ... clemency," it necessarily contemplated that they would be seeking clemency from state authorities; no federal official has the authority to commute a sentence imposed by a state court. See U.S. Const., art. II, § 2, cl. 1 (president has "Power to grant Reprieves and Pardons for Offenses against the United States") (emphasis added); Schick v. Reed, 419 U.S. 256, 266, 95 S. Ct. 379, 42 L. Ed. 2d 430 (1974) (pardoning power "flows from the Constitution alone"). In sum, it is clear from the face of § 848(q)(8) that the statute requires an attorney appointed by a federal court for a habeas corpus petitioner who is under a state-imposed death sentence to represent the petitioner in a subsequent state clemency proceeding. Section 848(q)(10), in turn, provides that "[c]ompensation shall be paid to attorneys appointed under this subsection," and thus it plainly compels payment of compensation for clemency-related work that an attorney appointed under § 848(q)(8) is required to perform. For these reasons, the Court has no hesitation in concluding that an attorney appointed to represent a habeas corpus petitioner under a sentence of death is required to pursue state clemency relief if it is available and desired by the petitioner, and that the attorney is entitled to reasonable compensation for that work. In this regard, the Court agrees with the Eighth Circuit's decision in Hill v. Lockhart, 992 F.2d 801, 803 (8th Cir.1993), and the decisions of at least three district courts, see Cloutier v. Schomig, No. 00 C 5476 (N.D. Ill. June 12, 2002); Lowery v. Anderson, 138 F. Supp. 2d 1123, 1125 (S.D.Ind.2001); Strickler v. Greene, 57 F. Supp. 2d 313, 317-18 (E.D.Va.1999). One Circuit has reached the opposite conclusion, see Clark v. Johnson, 278 F.3d 459, 462 (5th Cir.2002), and another concluded in a different context that § 848(q)(8) does not encompass state, as opposed to federal proceedings, see In re Lindsey, 875 F.2d 1502, 1506 (11th Cir.1989). We disagree with the latter decisions; they ignore the plain language of § 848(q)(8). "If the statutory language is unambiguous, in the absence of `a clearly expressed legislative intent to the contrary, that language must ordinarily be regarded as conclusive.'" United States v. Turkette, 452 U.S. 576, 580, 101 S. Ct. 2524, 69 L. Ed. 2d 246 (1981) (quoting Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S. Ct. 2051, 64 L. Ed. 2d 766 (1980)), quoted in Reves v. Ernst & Young, 507 U.S. 170, 177, 113 S. Ct. 1163, 122 L. Ed. 2d 525 (1993). Our conclusion, however, does not end our inquiry in this case. This Court agrees with the court in Hill that *796 "Congress did not intend to encourage futile federal habeas petitions filed only to obtain attorney compensation for state proceedings." Hill, 992 F.2d at 803. Thus a petitioner who, for example, files a habeas corpus petition containing plainly unexhausted claims cannot expect to obtain appointed counsel under § 848(q)(8) in order to exhaust his state remedies, a step that the law ordinarily requires a habeas petitioner to take before filing in federal court. See Lindsey, 875 F.2d at 1506-07 (if appointment and compensation were permitted to exhaust state remedies, "inmates... would ignore the exhaustion requirement and, before seeking state remedies, futilely file for federal habeas relief. Only after procuring a federally appointed lawyer would state inmates have an incentive to set upon the right track in pursuit of state remedies."). The Court therefore agrees with Hill that as a prerequisite to appointment of counsel under § 848(q)(8) to pursue state clemency, "the district court must be satisfied ... that the request is made as part of a nonfrivolous federal habeas corpus proceeding." Hill, 992 F.2d at 803.[1] That prerequisite has not yet been met in this case. As noted earlier, Hickey has not filed a habeas corpus petition; he has simply filed a notice of intent to file such a petition. The Court thus has no way of knowing what claims Hickey's eventual petition will include, whether those claims have been exhausted, and whether they are otherwise colorable. Indeed, in view of the procedural posture of this case, the concern expressed in Lindsey—that a federal habeas petition could be filed for the primary purpose of obtaining attorney compensation for state-court (or state clemency) proceedings—is a real one. Though we do not question counsel's good faith when they represent that Hickey is making his request for appointment "as part of a nonfrivolous federal habeas corpus petition," the Court must make that assessment for itself, and we are in no position to do so at this time. For this reason, the Court denies without prejudice Hickey's motion for appointment of counsel to represent him in state clemency proceedings [docket items 8-1, 10-1]. Hickey may renew his request upon the filing of his habeas corpus petition. NOTES [1] We also agree with Hill that the request for appointment should be made prior to performing the services related to the state clemency petition, Hill, 992 F.2d at 803, and that the court must be satisfied that state law does not provide an avenue for obtaining compensation for the attorney's services. Id.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2324803/

740 A.2d 1101 (1999) 326 N.J. Super. 166 Donald COLUCCI, Plaintiff-Appellant, v. William OPPENHEIM, M.D., Defendant-Respondent. and St. Barnabas Medical Center, Defendant. Superior Court of New Jersey, Appellate Division. Argued October 20, 1999. Decided November 22, 1999. *1103 Anthony M. Mahoney, Westfield, for plaintiff-appellant (Mahoney and Mahoney, attorneys; Mr. Mahoney, of counsel and on the brief; Dennis M. Mahoney, on the brief). David P. Weeks, Woodbridge, for defendant-respondent (Ruprecht, Hart & Weeks, attorneys; Mr. Weeks, of counsel; Michael R. Ricciardulli, on the brief). Before Judges KESTIN, WEFING and STEINBERG. *1102 The opinion of the court was delivered by STEINBERG, J.A.D. In this medical malpractice case, plaintiff Donald Colucci appeals from an order dismissing his complaint against defendant William Oppenheim, M.D. with prejudice based upon a jury verdict of no cause for action, as well as from an order denying his motion for judgment notwithstanding the verdict or, in the alternative, a new trial. We reverse.[1] On September 19, 1992, plaintiff, an Essex County Sheriff's Detective attached to the Fugitive Warrant Squad, while on *1104 the job, sustained an injury to his left knee. Arthoscopic surgery was unsuccessful. Accordingly, in October 1993, plaintiff met with defendant, an orthopedic surgeon, to discuss his treatment options. Plaintiff was accompanied by Judy Jordano, R.N., his rehabilitation nurse and case manager assigned to him by his employer's workers' compensation insurance carrier. According to plaintiff, defendant recommended performance of an osteotomy. Plaintiff said defendant advised him that an osteotomy involved a realignment of the bones in his left knee. Defendant also explained that pins would have to be inserted into his knee in order to hold the realignment in place. According to plaintiff, he was told that at least one pin would be protruding from his skin. He denied that defendant ever used the word "screw". Plaintiff also denied that defendant ever advised him that an open wedge osteotomy—which involved defendant's having to fracture his leg, realign it and hold it in place with an external fixator device—was to be performed. According to plaintiff, he first became aware that an external fixator had been drilled and screwed into his leg bone when he awoke in the hospital after the surgery. Plaintiff also testified that defendant never advised him of an alternative procedure known as a closed wedge osteotomy, which involves the use of a closed long leg cast and an internal fixator as opposed to the application of an external fixator. Moreover, a closed wedge osteotomy does not involve screws or pins protruding from the patient's leg. Plaintiff contended that a closed wedge osteotomy would therefore create a lesser risk of infection. On the other hand, defendant testified that he discussed the possibility of a closed wedge osteotomy with plaintiff. Defendant also testified that, in his opinion, since the incision for an open wedge osteotomy was much smaller, there was a decreased risk of infection. According to defendant, he discussed with plaintiff the advantages and disadvantages of both types of surgeries and explained why he recommended the open wedge osteotomy. Plaintiff testified that had he known what was actually involved in an open wedge osteotomy, and the potential risks involved, he would have sought a second opinion regarding alternate treatment. Before leaving defendant's office, plaintiff was given a magazine article which discussed the open wedge tibial osteotomy. According to plaintiff, he read the article but did not understand it because it was too technical. Jordano testified that she had no independent recollection of what took place during the meeting between plaintiff and defendant but, according to reports she filed with the insurance carrier, the only two procedures that were discussed were the open wedge osteotomy and a total knee replacement.[2] The surgery was performed on November 8, 1993, at St. Barnabas Hospital. Plaintiff signed a consent to operate which indicated that the proposed surgical treatment was "upper tibial osteotomy application external fixator left tibia". The consent form was dated November 8, 1993, and indicated it was signed at 6:45 a.m. Plaintiff testified that the consent form did not describe the proposed surgical treatment at the time he signed it, thereby implying that the description was filled in after he signed the form. He said the form was presented to him as he was leaving the "pre-op" room going to the hallway that led to the operating rooms. He said that he signed the form and "within three minutes I was in the operating room". However, according to the anesthesia record, plaintiff was taken to the operating room at 8:00 a.m. *1105 Post-operative complications developed. Plaintiff is a diabetic and accordingly he is susceptible to an elevated risk of infection. He noted redness around the area of the upper screw sites and returned to defendant's office. He also experienced continued pain and redness of the screw sites as well as some swelling in the leg. In early January 1994, he was readmitted to the hospital because of increasing pain in his leg. Defendant opined that plaintiff had a low-grade infection rather than a pin-site infection. According to defendant, since plaintiff's low-grade infection which defendant referred to as an irritation or small cellulitis had resolved and plaintiff's knee had not sufficiently healed, defendant did not remove the external fixator during plaintiff's January 1994 hospitalization. Defendant removed the external fixator on March 7, 1994, because, in his judgment, the bone that was being formed was not maturing and there was a recurrence of increased temperature around the pin-sites. On March 15, 1994, plaintiff was again admitted to St. Barnabas Hospital because the pin sites had not closed since the screws had been removed. It was discovered that plaintiff had a blood-borne infection called Methicillin Resistant Staphylococcus Aureus (MRSA). According to plaintiff, the infection spread throughout his body. He went into a coma; was placed in intensive care on a respirator and feeding tube, and sustained a multiple system failure as a result of the infection. Dr. Leon Smith, who was board certified in infectious diseases, testified that plaintiff, as a result of the infection, had brain abscesses, lung problems, heart murmurs, a blood infection, kidney failure, and spinal abscesses. He opined that an infection had settled into plaintiff's spine causing spinal abscesses. According to plaintiff, he was ultimately required to undergo back surgery since the infection had eaten away the bone of his spine. In addition, plaintiff presented the testimony of Dr. Gary R. Joachim as a medical expert in the field of infectious diseases. Dr. Joachim testified that defendant deviated from the medically accepted standard of care in not recognizing and treating the infection earlier, and in the manner in which he ultimately dealt with the infection. Dr. Joachim also said that defendant's notes demonstrated that defendant had observed lucency in plaintiff's x-ray on January 25, 1994, and that this was a clear sign of a possible infection. Plaintiff also presented the testimony of Dr. Bennett Futterman, an orthopedic surgeon. Dr. Futterman opined that defendant deviated from the accepted standard of medical care since a closed wedge osteotomy should have been performed because plaintiff was a diabetic and therefore suffered an increased risk of infection. He also opined that defendant deviated from the accepted standard of care in his postoperative management of the pin sites. The jury found that defendant did not deviate from accepted standards of medical practice in his treatment of plaintiff. The jury also found that defendant failed to disclose adequate information about the material risks associated with the proposed procedure to plaintiff before obtaining his consent. However, the jury also concluded that a reasonable person with the same medical condition as plaintiff, under the same circumstances and properly informed of the risks associated with the proposed procedure, would still have consented to the surgical procedure. Accordingly, consistent with the jury's verdict, the trial judge molded the verdict to one of no cause for action. On this appeal, plaintiff raises the following arguments: The trial court erred in (1) not charging the jury regarding medical battery; (2) giving an improper charge regarding the exercise of judgment; (3) accusing plaintiff's counsel during summation of making unfair accusations against defendant; (4) removing the issue of lost wages from the jury, and (5) denying plaintiff's post-judgment motions for a judgment notwithstanding the verdict and a new trial. *1106 We first consider plaintiff's contention that the trial judge improperly accused counsel, during summation, of making unfair accusations against defendant. During the course of his summation, plaintiff's attorney made the following remarks: Sometime, ... cases are proven, not by all the evidence that's brought in, not by exhibits, not by charts, not by graphs, sometimes the case is proven by what is not brought in. These are the defendant's x-rays. These aren't all his x-rays. There are 30, 40, 50 x-rays that were taken of Mr. Colucci, just by Dr. Oppenheim, without getting involved in the hospital records. Every time we went to the office, procedural x-rays, everything else. The defense, however, is only putting these x-rays in evidence for you to take into the jury, and the dates of these x-rays are as follows. Now Mr. Colucci doesn't have any x-rays. He doesn't walk around with any x-rays, he doesn't walk around with his hospital chart. He's not the doctor. He hasn't made any entries or notes. He only has his recollection, which (defense counsel) indicated is obviously faulty and everything else. He doesn't have any of this documentation. These x-rays cover November 26th of `93, December the 7th of `93 ... DEFENDANT'S ATTORNEY: Objection, your Honor. THE COURT: I'll see you at side bar, gentlemen. (The following takes place at side bar.) THE COURT: The implications of your testimony [sic] I believe, ... are not proper. The reference to the fact that these are the only x-rays that they put into evidence, implies that they are trying to hide something. If you thought there was something in those other records, you know very well you had ample opportunity to put those x-rays into evidence. That type of argument is completely improper, sir. PLAINTIFF'S ATTORNEY: Your Honor, there are other x-rays. I can't interpret an x-ray. They are not ... THE COURT: I'm not talking about interpretation of the x-rays, sir. I said the reference you made is an implication that something is being hidden from these people, which is completely false. PLAINTIFF'S ATTORNEY: No, it's not being hidden, your Honor. And if there wasn't an objection, I think it would become apparent where I'm going... THE COURT: It's not apparent, but I will make it apparent, sir. (The following takes place in open court.) THE COURT: Counsel referred to you the fact that there are some of defendant's x-rays that have been put into evidence and indicated that there are 30, 40, 50 x-rays that were taken of Mr. Colucci. And then he said, the defense, however, is only putting these x-rays in evidence for you to take into the jury room. That clearly, in my opinion, implies that the defense was keeping from you information which was relevant and material to this case. That is not the fact. And the implication is completely uncalled for. Indeed, if [plaintiff's attorney] believed that there were other x-rays that were material and relevant to this case, he had full opportunity to present them to you and put them in evidence. The implication that there was some wrongdoing on the part of the defense in trying to keep something from you, is completely uncalled for, and you will disregard it. * * * * * PLAINTIFF'S ATTORNEY: The Court is in error as to what I was implying. The x-rays I'm referring to are *1107 actually in evidence and I put them in evidence before you. THE COURT: Now: [plaintiff's attorney]... PLAINTIFF'S ATTORNEY: I put, your Honor, the interpretation of the x-rays I'm referring to are in evidence. THE COURT: You may not have intended the implication but the Court is not in error for what it found from what you said. PLAINTIFF'S ATTORNEY: I apologize, your Honor. THE COURT: Very well, sir. Glad to hear it. PLAINTIFF'S ATTORNEY: I certainly didn't intend what the Court thought. If you turn to the report of January 25, it indicates that there is some lucency over the near cortices. Particularly over the proximal of the two distal screws is noted. He's looking at an x-ray when he saw that. He put the report in evidence. As a physician, he has his x-ray. He could have put the x-ray on a shadow box, as he did with the other x-rays. DEFENSE COUNSEL: Objection, your Honor. PLAINTIFF'S ATTORNEY: Your Honor, there's no implication. I think I have a right to comment ... THE COURT: I'll see you at side bar, sir. Let's not discuss this in front of the jury. (The following takes place at side bar.) PLAINTIFF'S ATTORNEY: There is no implication, your Honor. I believe I have a right to fairly comment on what the doctor does and doesn't do with his exhibits. That's all I'm doing. THE COURT: If you thought something could be established by putting it on the shadow box, during your cross-examination, you could have very well brought that out. PLAINTIFF'S ATTORNEY: Judge, I don't have an obligation, I believe, to do that on cross-examination. I believe the doctor, it's his x-ray, if he wants to put in a defense based on that x-ray, he has a right to do it. THE COURT: That's right. And you have a right to cross-examine if you feel that there's anything in that x-ray which supports your position. PLAINTIFF'S ATTORNEY: Right. But he didn't put it up there, so I can't cross-examination. [sic]. THE COURT: You could have put it up there, sir, could you not? PLAINTIFF'S ATTORNEY: But he's not my doctor. THE COURT: And on cross-examination you certainly could, and in fact you didn't. Seems to me implies that you had no basis for doing it. And the implication that there was some basis for doing it is improper, sir. (The following took place in open court.) THE COURT: I'm sorry we have to interrupt counsel during summations. Generally we don't do so unless it's absolutely necessary. However, counsel, again, is suggesting by the fact that ... his reference to the fact that the witness did not exhibit the x-rays to which he referred to on a shadow box, was because there was something that he did not want to reveal to you which would have been contrary to his position. The fact of the matter is, [plaintiff's attorney] went through extensive cross-examination with [defendant] as well as the other doctors and expert witnesses, and he was free to put those x-rays on the shadow box and cross-examine the witnesses as to it, if there was anything that would have supported his position and been contrary to the witnesses' position. The fact that he elected to do that indicates that he didn't believe that there was anything that would have served his purpose by doing so. To imply now, in an argument to you, that there was something in those x-rays *1108 that would have been revealed, had it been put on the shadow box, is completely improper and inconsistent with the trial and trial practice in this Court. There is full opportunity for the defense, as well as the plaintiff, to go with the testimony of these witnesses, not only in the Court, by cross-examination, but before they are in Court and during a discovery process by depositions. Interrogatories, and any other means that we provide under the rules. To imply that there's something being hidden from you or not presented to you, completely, is without foundation, and you are to disregard it. We begin by observing that counsel is allowed broad latitude in summation. Diakamopoulos v. Monmouth Med. Center, 312 N.J.Super. 20, 32, 711 A.2d 321 (App.Div.1998); Condella v. Cumberland Farms, Inc., 298 N.J.Super. 531, 534, 689 A.2d 872 (L.1996). Nevertheless, counsel's comments must be confined to the facts shown or reasonably suggested by the evidence introduced during the course of the trial. Ibid. Counsel may argue from the evidence any conclusion which a jury is free to reach. Spedick v. Murphy, 266 N.J.Super. 573, 590, 630 A.2d 355 (App.Div.), certif. denied, 134 N.J. 567, 636 A.2d 524 (1993). Indeed, counsel may draw conclusions even if the inferences that the jury is asked to make are improbable, perhaps illogical, erroneous or even absurd, unless they are couched in language transcending the bounds of legitimate argument, or there are no grounds for them in the evidence. Id.at 590-91, 630 A.2d 355. On the other hand, "[c]ounsel, in his summation to a jury should not misstate the evidence nor distort the factual picture". Matthews v. Nelson, 57 N.J.Super. 515, 521, 155 A.2d 111 (App.Div.1959), certif. denied, 31 N.J. 296, 157 A.2d 364 (1960). Here, we conclude that the trial judge erred in sustaining defendant's objection. Plaintiff's counsel's comments were based upon facts in evidence, or, at least, suggested inferences that could reasonably be drawn from the evidence introduced. After all, in evidence through the testimony of Dr. Joachim and Dr. Futterman was the fact that x-rays taken by defendant on January 25, 1994, depicted lucency. In addition, defendant's own notes of his January 25, 1994 examination referred to lucency as depicted on the x-rays. Counsel had the absolute right to comment upon the fact that defendant referred to other x-rays, and showed other x-rays on the shadow box, yet neglected to mention the January 25, 1994 x-ray depicting lucency. The trial judge erred in sustaining the objection. We must next determine whether the improper sustaining of the objection necessitates a reversal. We are deeply troubled by the fact that not only did the judge improperly sustain the objection, but he went on to advise the jury that counsel improperly implied to the jury that the defense was keeping from it information which was relevant and material to this case. Injecting his own belief into his instruction to the jury, the judge advised the jury that "that is not the fact". He further advised the jury that the implication of wrong-doing was completely uncalled for and directed the jury to disregard it. In sustaining defense counsel's later objection, the judge advised the jury that counsel was free to put the x-rays on the shadow box if he saw fit to do so. That may be true. However, counsel was not required to do so. Counsel was free to argue any legitimate inferences that could be drawn from the evidence introduced, including defendant's reliance on other x-rays, coupled with his failure to testify regarding the x-ray of January 25, 1994, since the results of that x-ray were in evidence. The judge compounded the error by advising the jury that counsel's failure to put the x-rays in question on the shadow box "indicates that he didn't believe that there was anything that would have served his purpose by doing so". Finally, he suggested *1109 to the jury that it was "completely improper and inconsistent with the trial and trial practice in this court" to imply that there was something in those x-rays that would have been revealed had they been put on the shadow box. We are satisfied that those remarks, coming from the judge, coupled with the incorrect sustainment of the objection in the first place, had the clear capacity to turn the jury against plaintiff by virtue of the judge's remarks regarding his attorney. Although great latitude is given to a trial judge in the conduct of a trial, there are limitations on that latitude. Mercer v. Weyerhaeuser Co., 324 N.J.Super. 290, 298, 735 A.2d 576 (App.Div.1999). A trial judge must conduct a trial in a fair and impartial manner without making remarks that might prejudice a party. Cestero v. Ferrara, 110 N.J.Super. 264, 273, 265 A.2d 387 (App.Div.1970), aff'd, 57 N.J. 497, 273 A.2d 761 (1971). To the jury, the trial judge is the symbol of experience, wisdom and impartiality and, as such, must take great care not to throw his judicial weight, even inadvertently, on one side or the other. Mercer v. Weyerhaeuser Co., supra, 324 N.J.Super. at 298, 735 A.2d 576. Therefore, a trial judge should never unfairly criticize counsel in front of the jury. Ibid. Here, we conclude that the remarks of the trial judge in sustaining the objection had the clear capacity to prejudice plaintiff in the eyes of the jury. We cannot conclude with any degree of confidence that the judge's remarks did not deprive plaintiff of a fair trial. We therefore reverse and remand for a new trial. For guidance of the parties on retrial, we comment briefly regarding some of plaintiff's other contentions. We turn, first, to plaintiff's contention that the trial judge erred in denying his application, made on the eve of trial, to amend his complaint to assert a claim for battery. We recognize that the broad power of amendment should be liberally exercised unless undue prejudice would result. Kernan v. One Washington Park, 154 N.J. 437, 457, 713 A.2d 411 (1998). Nevertheless, the granting of a motion to file an amended complaint always rests in the court's sound discretion. Ibid. While we recognize that ordinarily a motion for leave to amend should be granted even if the ultimate merits of the amendment are uncertain, id. at 456, 713 A.2d 411, we conclude that the judge did not mistakenly exercise his discretion in denying the motion to permit plaintiff to assert, at that late date, a claim for battery. A plaintiff may assert an action against a doctor for personal injuries under three different theories: deviation from the standard of care; lack of informed consent; battery. Baird v. American Medical Optics, 155 N.J. 54, 69-71, 713 A.2d 1019 (1998); Teilhaber v. Greene, 320 N.J.Super. 453, 463, 727 A.2d 518 (App.Div.1999). Here, plaintiff's case was based upon the theories of deviation from the standard of care and lack of informed consent. Plaintiff's contentions were that defendant failed to advise him of the alternative of a closed wedge osteotomy; failed to advise him of the details of the proposed surgery; and failed to detect and treat the resultant infection. These are claims of lack of informed consent and deviation from care. Battery, on the other hand, is an intentional tort. Whitley-Woodford v. Jones, 253 N.J.Super. 7, 11, 600 A.2d 946 (App.Div.1992). It occurs when a doctor does not obtain the consent of his patient to perform a particular operative procedure and is, therefore, an unauthorized invasion of the body. Ibid. The battery theory is reserved for those instances where the patient consents to the performance of one kind of operation and the physician performs a substantially different one for which authorization was not obtained, Samoilov v. Raz, 222 N.J.Super. 108, 119, 536 A.2d 275 (App.Div.1987), or where no consent at all is obtained. However, where surgery is authorized but the consent is uninformed, negligence applies *1110 rather than battery. Tonelli v. Khanna, 238 N.J.Super. 121, 127, 569 A.2d 282 (App.Div.), certif. denied, 121 N.J. 657, 583 A.2d 344 (1990). Where a patient consents to surgery, although perhaps not with adequate information, an action for battery is generally inappropriate. Id. at 126-27, 569 A.2d 282. Generally, the battery theory applies where the surgery was completely unauthorized as, for instance, where the plaintiff did not consent to the particular medical treatment provided. Id. at 127, 569 A.2d 282. Simply put, plaintiff's theories throughout the case were those of informed consent and deviation. He had consented to surgery to correct his knee condition; the issue in this regard was whether he had been adequately informed regarding the particular procedure used. Plaintiff has not demonstrated any facts throughout these proceedings, including on appeal, which would entitle him to pursue a claim of battery. The judge did not mistakenly exercise his discretion in denying the application to amend the complaint, and in denying the application at the end of the case to charge battery to the jury. We next consider plaintiff's contention that the trial judge erred in giving the "standard exercise of judgment charge" which we had specifically criticized in Morlino v. Medical Center of Ocean County, 295 N.J.Super. 113, 684 A.2d 944 (App.Div. 1996). On February 26, 1998, a few days before trial began, our Supreme Court affirmed Morlino. See Morlino v. Medical Center of Ocean County, 152 N.J. 563, 706 A.2d 721 (1998). The Court held that Model Jury Charge 5.36(A), when considered as a whole, does not have the capacity to confuse jurors. However, the Court noted that the charge may benefit from review and referred it to the Supreme Court Committee on Model Jury Charges, Civil, to determine whether fewer than eleven references to "judgment" would adequately communicate to the jury that medicine is not an exact science and that physicians and surgeons must exercise judgment. Id. at 590, 706 A.2d 721. In addition, because of its potential to confuse the jury, the Court stated that the revised charge should eliminate the sentence suggesting that a doctor is not liable for a mistake that results from the exercise of judgment. Ibid. Finally, the Court directed the Committee to attempt to make the entire charge shorter and clearer. Depending upon how the proofs develop at retrial, if the court decides to give an exercise of judgment charge it should consider the Model Jury Charge in effect at the time of retrial, and, in any event, must conform to the suggestions set forth in Morlino, supra. Obviously, it would be extremely helpful to the trial judge if the parties would submit requests to charge pursuant to R. 1:8-7(a). The court should conduct a charge conference, on the record, as was done in this case. Finally, we address plaintiff's contention that the trial judge erred in removing the issue of lost wages from the jury. For guidance of the parties on retrial, we suggest that if a factual issue is presented whether plaintiff was able to work prior to his treatment by defendant, or would have been able to work at some point in the future, but became permanently and totally disabled as a result of the tortious conduct of defendant, or whether his earning capacity was diminished by the tortious conduct of defendant, a jury question would be presented. Reversed and remanded for a new trial. NOTES [1] The complaint also named St. Barnabas Medical Center as a defendant. Summary judgment was granted to St. Barnabas. Plaintiff does not appeal that determination. [2] All parties agree that a total knee replacement was not advisable for plaintiff due to his young age at the time.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2324805/

740 A.2d 1200 (1999) Jeanne SMITH, Appellant v. PHILADELPHIA GAS WORKS and Commonwealth of Pennsylvania, Department of Transportation and James J. Anderson Construction Company and Bell Atlantic Pa., Inc. and City of Philadelphia and Walter Rowe, Inc. and Seravalli Company. Commonwealth Court of Pennsylvania. Argued October 4, 1999. Decided November 15, 1999. *1201 Jordon R. Pitock, Philadelphia, for appellant. Leon W. Tucker, Philadelphia, for appellee, Phila. Gas Works. Anthony J. Bilotti, Philadelphia, for appellee, Dept. of Transp. Linell Lukesh, Philadelphia, for appellee, Bell Atlantic PA. Before COLINS, J., FRIEDMAN, J., and JIULIANTE, Senior Judge. FRIEDMAN, Judge. Jeanne Smith (Plaintiff) appeals from an order of the Court of Common Pleas of Philadelphia County (trial court) granting nonsuit against Plaintiff and in favor of six defendants as a result of a motion for discovery sanctions filed by one defendant. Plaintiff contends that the trial court erred in dismissing her case as to the five defendants who were not parties to the motion. We agree and, therefore, reverse. On November 15, 1996, Plaintiff filed suit against seven defendants, alleging that her car hit a manhole cover, causing her to lose control of her car and to suffer injuries. The case went to arbitration, which resulted in a decision against Plaintiff and in favor of all seven defendants. Plaintiff appealed the arbitrators' decision to the trial court, which granted summary judgment in favor of one of the seven defendants.[1] The six remaining defendants were: Philadelphia Gas Works (PGW); Commonwealth of Pennsylvania, Department of Transportation (PennDOT); James T. Anderson Construction; Bell Atlantic PA, Inc.; City of Philadelphia; and Walter Rowe, Inc. (Rowe) (collectively, Defendants). *1202 On September 3, 1997, Defendant Rowe served a Request for Production of Documents and Things on Plaintiff.[2] Plaintiff did not respond to Defendant Rowe's discovery request; thus, on October 20, 1997, Defendant Rowe filed a motion to compel Plaintiff to respond. Plaintiff did not contest that motion, and on November 4, 1997, the trial court entered an order directing Plaintiff to respond to Defendant Rowe's discovery request within twenty days. On December 22, 1997, after Plaintiff still failed to respond to the discovery request, Rowe filed a motion for sanctions. On January 9, 1998, the trial court entered an order, agreed to by Plaintiff, giving Plaintiff forty-five days to respond to Rowe's discovery request and indicating that, if Plaintiff failed to comply, she "may be prohibited from introducing any type of evidence, including evidence of physical [sic]".[3] When Plaintiff still failed to respond, Rowe filed yet another motion for sanctions on February 24, 1998 which Plaintiff did not contest. Nothing in the record indicates that any of the five other defendants formally adopted or joined Rowe's motions. As a result of Rowe's motion, the trial court issued an order dated March 6, 1998, stating that Plaintiff "is prohibited from introducing any type of evidence, including evidence of physical condition, at time of trial."[4] That order also fixed the trial date for April 20, 1998. When the case was called for trial, the trial court, as a result of its March 6, 1998 order barring Plaintiff from presenting any evidence at trial, dismissed Plaintiff's case against all six remaining defendants. Thereafter, Plaintiff filed a "Motion for Removal of Non-Suit and for a New Trial." The trial court denied Plaintiff's motion, and Plaintiff now appeals from that denial. On appeal, Plaintiff concedes that the trial court correctly dismissed her case against Defendant Rowe as a result of the sanction for Plaintiff's noncompliance with the trial court's order directing her to respond to Rowe's discovery request. Plaintiff argues, however, that the trial court erred by dismissing her case against the five other Defendants[5] who were not parties to Rowe's motion to compel or its motions for sanctions. We agree. Initially, we note that the decision whether to sanction a party for a discovery violation and the severity of that sanction are matters vested in the sound discretion of the trial court. We will not reverse a trial court's order imposing a discovery sanction unless the trial court abused its discretion. Croydon Plastics Co. v. Lower Bucks Cooling & Heating, 698 A.2d 625 (Pa.Super.1997), appeal denied, 553 Pa. 689, 717 A.2d 1028 (1998). An abuse of discretion includes "not only errors of judgment but also the overriding or misapplication of the law." Racunas v. Ringgold School District, 70 Pa.Cmwlth. 221, 452 A.2d 917, 919 n. 7 (1982). Here, because the trial court's order dismissing Plaintiff's case against the five non-moving Defendants as a result of a discovery sanction *1203 favoring the non-movants was an abuse of discretion, we reverse. Under Pa. R.C.P. No. 4019(a)(1)(viii), a trial court may "make an appropriate order" if a party "fails to make discovery or to obey an order of court respecting discovery." As the trial court points out, Pa. R.C.P. No. 4019(c)(2) specifically authorizes trial courts to enter orders prohibiting the disobedient party from introducing evidence at trial. (Trial court op. at 1-2.) Likewise, we note that Pa. R.C.P. No. 4019(c)(3) permits a court to enter a judgment of non pros against a disobedient plaintiff. Thus, the trial court's sanction against plaintiff and in favor of Defendant Rowe was a proper exercise of the trial court's discretion. However, "nothing in Pa. R.C.P. No. 4019 intimates that a court may impose sanctions in favor of non-moving parties. Rather, a motion must be presented to the court." DeMarco v. Borough of East McKeesport, 125 Pa.Cmwlth. 13, 556 A.2d 977, 979 (1989), appeal denied, 525 Pa. 614, 577 A.2d 545 (1990). The facts of DeMarco are remarkably similar to those of the instant case. In DeMarco, the plaintiff failed to respond to the discovery request of one of four defendants. That single defendant thereafter moved to compel discovery and the trial court entered an order compelling the plaintiff to respond. When the plaintiff still did not respond, the single defendant moved for sanctions, and the trial court entered an order dismissing the plaintiff's complaint with prejudice. Based on that order, all four of the defendants individually requested the prothonotary to enter judgments in their favor, and the judgments were entered. We ruled that, despite the broad language of the trial court's discovery sanction order, the judgments in favor of the three non-moving defendants were improperly entered because those defendants had not presented motions for sanctions to the trial court. We painstakingly explained in DeMarco that "Pa. R.C.P. No. 4019(a)(1) directs the court to exercise its discretion in fashioning an appropriate order upon consideration of the motion for sanctions before it," and the trial court's authority does "not extend to concerns or matters extraneous to" the motion before it. Id. In other words, a trial court may not sua sponte impose a sanction order for violations of pretrial discovery orders; rather, the sanction order must be imposed pursuant to a motion of a party. 5 Standard Pennsylvania Practice 2d § 34.69. Here, the effect of the trial court's dismissal of Plaintiff's case against all seven defendants was to sua sponte impose a discovery sanction in favor of parties who did not file motions for the sanction. Thus, here, as in De-Marco, the trial court lacked authority to consider the effect of Plaintiff's noncompliance with its discovery order upon defendants who neither filed motions themselves nor formally adopted or joined in the motions filed. See id. Defendants, however, argue that we are precluded from considering Plaintiff's arguments because her appeal is untimely and because she failed to contest Rowe's motions at the time the sanctions were entered. We disagree. First, we note that discovery orders are interlocutory and not appealable until there is a final judgment in the underlying action. Baranowski v. American Multi-Cinema, Inc., 455 Pa.Super. 356, 688 A.2d 207, appeal denied, 550 Pa. 675, 704 A.2d 633 (1997). Thus, Plaintiff's appeal, filed after the dismissal of her case and within thirty days of the trial court's denial of her motion for removal of nonsuit, was timely. Relying on Baranowski, Defendants also argue that Plaintiff's failure to contest Rowe's motion for sanctions at the time the motion was filed results in waiver of Plaintiff's right to contest the sanctions on appeal. In Baranowski, the superior court stated that, where a plaintiff fails to contest the imposition or severity of sanctions, arguments against those sanctions are waived. Id. Thus, Defendants argue *1204 that Plaintiff's failure to contest the imposition, or severity, of the sanction at time of Rowe's motion constituted waiver of any arguments against the sanction. Baranowski, however, is distinguishable. In that case, the trial court did not abuse its discretion by imposing sanctions in favor of non-moving parties. In Baranowski, unlike this case, all of the defendants benefiting from the sanction order were parties to the motion to compel and the motion for sanctions.[6] There was no claim that the trial court exceeded its authority by sua sponte imposing a sanction in favor of a party who did not file a motion. See, e.g., DeMarco. Also, in Baranowski, the superior court was careful to point out that the plaintiff had notice of the severity of the proposed sanctions and still failed to respond. Here, in sharp contrast, although there is no question that Plaintiff's counsel should have been more diligent, Defendant Rowe's motions to compel and for sanctions gave no indication to Plaintiff that the proposed sanction of preclusion of evidence would accrue to the benefit of the non-moving defendants. Nor should Plaintiff's counsel have been alert to that possibility in light of the case law to the contrary. See, e.g., DeMarco. Although any, or all, of the other five Defendants could have joined in Rowe's discovery request and motions, they did not. Moreover, the proposed order drafted by Rowe's counsel and attached to Rowe's motion for sanctions was silent with respect to any of the other Defendants. Indeed, when the trial court entered the March 6, 1998 sanction order, it is obvious that it did not intend to prohibit Plaintiff from introducing evidence against any and all of the six remaining defendants, with the exception of Defendant Rowe, because the trial court, in the same order, set a trial date for April 20, 1998. Certainly, there would have been no need to schedule a trial if Plaintiff was barred from introducing evidence against the five non-moving defendants as well. We also reject Defendant Penn-DOT's contention that Plaintiff's appeal is barred because her notice of appeal mentioned only the trial court's July 31, 1998 order denying Plaintiff's motion for removal of nonsuit and did not include an appeal from the trial court's March 6, 1998 sanction order prohibiting Plaintiff from introducing evidence at trial. PennDOT's argument would have us elevate form over substance. Here, although Plaintiff did not specify the discovery sanction order in her notice of appeal, there is no question that the sole basis for the trial court's order dismissing Plaintiff's case was the sanction order. Indeed, the trial court's memorandum opinion in support of its July 31, 1998 order, from which Plaintiff unquestionably appealed, consists exclusively of a discussion of the trial court's reasons for imposing the March 6, 1998 discovery sanction against Plaintiff. Finally, we point out that courts "have inherent power to correct their own judgments, even after expiration of the appeal period, and this power extends to the correction of obvious or patent mistakes...." DeMarco, 556 A.2d at 979. In DeMarco, we ruled that dismissal of a complaint on the basis of a trial court's imposition of discovery sanctions in favor of non-moving parties made the judgments void ab initio. We therefore held that the plaintiff's petition to open/strike judgments was timely even though filed beyond the time for appeal. Here, as in DeMarco, the trial court's obvious and patent mistake of imposing a discovery sanction in favor of non-moving parties made the judgments in favor of the non-moving parties void ab initio and requires correction even though *1205 Plaintiff did not contest the sanction order when it was entered. Accordingly, we reverse the April 20, 1998 decision of the trial court entering nonsuit against Plaintiff and in favor of Defendants PGW, PennDOT, James T. Anderson Construction, Bell Atlantic PA, Inc. and City of Philadelphia. We also reverse the trial court's order of March 6, 1998, prohibiting Plaintiff from introducing any evidence at trial insofar as it may prohibit Plaintiff from introducing any evidence with respect to those five Defendants, and we remand this case to the trial court for further proceedings in accordance with this opinion.[7] O R D E R AND NOW, this 15th day of November, 1999, we reverse the April 20, 1998 decision of the trial court, docketed April 28, 1998, entering nonsuit against Plaintiff and in favor of defendants Philadelphia Gas Works; Commonwealth of Pennsylvania, Department of Transportation; James T. Anderson Construction; Bell Atlantic PA, Inc.; and City of Philadelphia. We also reverse the trial court's order of March 6, 1998, prohibiting Plaintiff from introducing any evidence at trial insofar as it may prohibit Plaintiff from introducing any evidence with respect to those five defendants, and we remand this case to the trial court for further proceedings in accordance with this opinion. Jurisdiction relinquished. Judge COLINS dissents. Judge LEADBETTER did not participate in the decision in this case. NOTES [1] As a result, Defendant Seravalli Company was dismissed, and Plaintiff did not appeal that order. [2] Plaintiff's brief mistakenly refers to the discovery request as interrogatories. [3] The sentence was incomplete, apparently due to a clerical error on the part of the attorney who drafted the order. [4] The trial court also ordered Plaintiff to pay a counsel fee of $150 and costs of $90 to Rowe for the preparation and filing of the two motions for sanctions and the motion to compel. Plaintiff has not challenged that portion of the order. We note that nothing in the record indicates whether, prior to entering its order prohibiting Plaintiff from introducing any evidence at trial, the trial court reviewed Rowe's discovery request to determine "the importance of the precluded evidence in light of [Plaintiff's] failure to comply." See Croydon Plastics Co. v. Lower Bucks Cooling & Heating, 698 A.2d 625, 629 (Pa.Super.1997), appeal denied, 553 Pa. 689, 717 A.2d 1028 (1998). Rowe did not attach a copy of the discovery request to its motions, and the record does not contain a copy of Rowe's discovery request. [5] Those five defendants are: PGW; Penn-DOT; James T. Anderson Construction; Bell Atlantic PA, Inc.; and City of Philadelphia. [6] For this reason, the cases relied upon by the trial court for entering a judgment of non pros in favor of the five non-moving Defendants are inapplicable. In Lawrence v. General Medicine Ass'n., Ltd., 412 Pa.Super. 163, 602 A.2d 1360 (1992), and Poulos v. Department of Transportation, 133 Pa.Cmwlth. 322, 575 A.2d 967 (1990), the trial courts' entry of non pros as a discovery sanction was limited to only those defendants who had filed the motions to compel and for sanctions. [7] In so ruling, we do not intend to condone or reward Plaintiff's counsel's routine disregard of the Rules of Civil Procedure before the trial court and the Rules of Appellate Procedure before this court, as well as orders of both the trial court and this court. Indeed, Plaintiff's brief filed in this court was barely passable, and the research contained in the brief was not only unhelpful to our determination, but also a reflection of Plaintiff's counsel's inattentiveness and lackadaisical attitude exhibited throughout this case. Here, Plaintiff has prevailed as a result of the law, not through any effort on the part of her counsel.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2324808/

740 A.2d 1208 (1999) Mark B. ARONSON, Petitioner, v. PENNSYLVANIA PUBLIC UTILITY COMMISSION, Respondent Commonwealth Court of Pennsylvania. Submitted on Briefs October 1, 1999. Decided November 16, 1999. *1209 Mark B. Aronson, petitioner, pro se. Rhonda L. Daviston, Harrisburg, for respondent. Before McGINLEY, J., KELLEY, J., and MIRARCHI, Jr., Senior Judge. MIRARCHI, Jr., Senior Judge. Mark B. Aronson (Aronson) appeals pro se from an order of the Pennsylvania Public Utility Commission (PUC) that dismissed his formal complaint against The Peoples Natural Gas Company (Peoples), determining that (1) Peoples' utility charges are exempted from the disclosure requirement under the Truth in Lending Act (TILA), 15 U.S.C. §§ 1601-1667f, and (2) the public utility services provided by Peoples were adequate and reasonable under Section 1501 of the Public Utility Code, 66 Pa.C.S. § 1501. The relevant facts found by the administrative law judge (ALJ) and adopted by the PUC are as follows. Peoples provides natural gas utility services in Pennsylvania. On or about August 21, 1997, Peoples sent Aronson a gas bill, listing an account balance of $557.36 and an optional payment amount of $113. The bill stated, "Please Pay By Sep 11, 1997 To Avoid A Late Payment Charge Of $6.57 (1.5%)." On the reverse side of the bill, Peoples explained the "Optional Payment Plan" as follows: "This plan lets you spread payments over the entire year. Each month you have a choice of paying the Account Balance or the Optional Payment Amount. All residential customers are eligible." The bill further stated: "A late payment charge is added to your bill if either the Account Balance or the Optional Amount is not paid by the `Please Pay By' date. The charge is 1½% of the amount you owe." Aronson paid neither the total account balance nor the optional payment amount by September 11, 1997. On September 23, 1997, Peoples sent Aronson a gas bill for the following month. The bill listed a new account balance of $586.44 (new service charges of $22.51 + the unpaid balance of $557.36 + a late payment charge of $6.57) and an optional payment amount of $206.57, and stated, "Please Pay By Oct 14, 1997 To Avoid A Late Payment Charge of $6.91 (1.5%)." On September 29, 1997, Aronson remitted the optional payment amount of $113 listed in the August bill, which was received at Peoples' bill payment center in Baltimore, Maryland on October 3, 1997. *1210 Peoples' employee reviewing the payment history of an account on a particular day does not have updated information regarding payments received earlier that day. As a result, Peoples sent Aronson a ten-day turn-off notice on October 3, 1997, stating that Peoples planned to turn off the gas service upon Aronson's failure to pay the overdue amount listed in the August bill by October 16, 1997. The bill further stated that Peoples would not turn off the service if Aronson, inter alia, called Peoples at the toll-free number listed in the notice to make payment arrangements or dispute the bill. Finally, the notice stated: "AFTER you talk with us, if you are not satisfied, you may file a complaint with the Pennsylvania Utility Commission (PUC). The PUC will delay the turn-off if you file the complaint before the turn off date." (Emphasis in original.) On October 8, 1997, Aronson called Peoples and was told by Peoples' employee to disregard the turn-off notice. The employee stated that Aronson's payment was received on October 3, 1997, that his account was current as of October 3, 1997, and that his payment and the turn-off notice must have crossed in the mail. On October 10, 1997, Aronson filed pro se a formal complaint with the PUC, alleging that in issuing the monthly billing statements, Peoples failed to comply with TILA which requires disclosure of the consumer credit costs, and that Peoples' billing practice and the turn-off notice do not comply with Section 1501 of the Public Utility Code, 66 Pa.C.S. § 1501, which provides in relevant part that "[e]very public utility shall furnish and maintain adequate, efficient, safe, and reasonable service ...." Relying on the previous initial decision of an ALJ in the proceeding involving Aronson's similar challenge to the monthly billing statements of the Bell of Pennsylvania, the ALJ concluded that the PUC lacks subject matter jurisdiction over the issue of Peoples' alleged violation of TILA because Peoples' utility charges are exempted from the disclosure requirement under TILA. The ALJ further concluded that Aronson failed to establish that the utility services provided by Peoples were inadequate and unreasonable. The ALJ accordingly recommended that Aronson's formal complaint be denied. The PUC subsequently denied Aronson's exceptions to the ALJ's initial decision and dismissed the formal complaint. Aronson's appeal to this Court followed.[1] Aronson first contends that in the monthly billing statements, Peoples failed to list the specific due date, the annual percentage rate for late payment charges, the total amount from which the late payment charges are computed, and the method of computing those charges, in violation of TILA. TILA was enacted "to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit, and to protect the consumer against inaccurate and unfair credit billing and credit card practices." 15 U.S.C. § 1601(a). To achieve the stated purposes, TILA requires lenders to disclose, inter alia, the annual percentage rate, the method of calculating the finance charge, the balance upon which the finance charge will be imposed, the amount of finance charge, and the due date or periods of payments scheduled to repay the indebtedness. 15 U.S.C. §§ 1602(a), 1605, 1606 and 1638(a). In imposing the disclosure requirement on lenders, however, TILA specifically exempts, inter alia, "[t]ransactions under public utility tariffs, if the [Federal Reserve] *1211 Board determines that a State regulatory body regulates the charges for the public utility services involved, the charges for delayed payment, and any discount allowed for early payment." 15 U.S.C. § 1603(4). Pursuant to the authority granted by TILA, the Federal Reserve Board subsequently promulgated the regulations exempting certain transactions from the disclosure requirement, including: (c) Public utility credit. An extension of credit that involves public utility services provided through pipe, wire, other connected facilities, or radio or similar transmission (including extension of such services), if the charges for service, delayed payment, or any discounts for prompt payment are filed with or regulated by any government unit. The financing of durable goods or home improvements by a public utility is not exempt. 12 CFR § 226.3(c). In Pennsylvania, every public utility is required to file with the PUC "tariffs showing all rates established by it and collected or enforced, or to be collected or enforced, within the jurisdiction of the [PUC]." Section 1302 of the Public Utility Code, as amended, 66 Pa.C.S. § 1302. Further, the PUC regulations extensively regulate public utility services, including information to be included in the billing statements, the late payment charges to be imposed, and the resolution of disputes between the public utility and its customers. Hence, Peoples' utility charges are exempted from the disclosure requirement under TILA and 12 CFR § 226.3(c).[2]See also Ferguson v. Electric Power Board of Chattanooga, 378 F.Supp. 787 (E.D.Tenn. 1974), aff'd, 511 F.2d 1403 (6th Cir.1975) (the late charges imposed in public utility bills are specifically exempted from the disclosure provision of TILA). Aronson next contends that even if Peoples' utility charges are exempted by TILA and 12 CFR § 226.3(c), Peoples must still disclose the information listed in TILA to provide adequate and reasonable services required by Section 1501 of the Public Utility Code. As the party filing a formal complaint with the PUC, Aronson had the burden of establishing that Peoples failed to provide adequate and reasonable services. Section 332(a) of the Public Utility Code, as amended, 66 Pa.C.S. § 332(a). In reviewing the PUC's decision, this Court must defer to the interpretation of the governing statutes, regulatory pronouncements and terms of the tariffs rendered by the PUC that has the particular expertise over public utility matters. Springfield Township v. Pennsylvania Public Utility Commission, 676 A.2d 304 (Pa.Cmwlth.1996); W.C. McQuaide, Inc. v. Pennsylvania Public Utility Commission, 137 Pa.Cmwlth. 282, 585 A.2d 1151 (1991). The PUC regulations at 52 Pa.Code §§ 64.11-64.22 contain the specific payment and billing standards which all public utilities are required to comply. Under the regulations, public utilities are permitted to assess "a late charge or penalty on any overdue bill" in an amount not exceeding "1.5% interest per month on the full unpaid and overdue balance of the bill." 52 Pa.Code § 56.22(a). Peoples' tariff approved by the PUC provides in relevant part: A bill will be rendered as nearly as possible on the same day every month and shall be payable upon presentation. A bill shall be deemed delinquent if it is not paid by the due date. The due date for residential and commercial ratepayers shall be twenty (20) days after the *1212 date of mailing the bill unless the Company agrees to an extension. Delinquent residential accounts shall be subject to a late-payment charge of one and one-half percent (1½) per month for bills not paid within five days after the due date. Peoples' Tariff, p. 26. In the monthly billing statements, Peoples clearly instructed its customers, in customer-friendly language, to pay either the account balance or the optional payment amount by a certain date to avoid a specified amount of a late payment charge calculated at the monthly percentage rate of 1.5%. Peoples' monthly billing statements thus contained all the information required by the regulations and the tariff approved by the PUC, including the due date, the late payment charge rate and the amount from which the late charge is computed. Moreover, the PUC approved the specific language used in Peoples' monthly billing statements under the detailed "plain language" guidelines set forth in 52 Pa.Code § 69.251. In addressing Aronson's argument that the "please-pay-by" date in the bills is not a due date, that his account therefore can never become "overdue," and that he may elect to have the late payment charge added to the outstanding balance without paying either the total account balance or the optional payment amount, the ALJ stated: [P]erhaps it requires someone with the training and intelligence of Mr. Aronson to tell the difference,[3] but I believe that this Commission is correct in assuming that most members of the population of ratepayers, particularly those not trained in the finer points of legal drafting, would understand please pay by a certain date to mean that certain date is the date payment due. Further, the language concerning the application of a late payment charge at the very least infers that failure to pay the certain date will result in the imposition on [sic] an additional charge. And just what is that additional charge? Why it is 1.5% of the amount that should have been paid. The ALJ's Initial Decision, p. 14. We agree with the ALJ's reasoning and conclude that Peoples' monthly billing statements complied with the applicable regulations, the tariff and the PUC's plain language guidelines and, therefore, constitute adequate and reasonable services under Section 1501 of the Public Utility Code.[4] Aronson further contends that the issuance of the turn-off notice on October 3, 1997 was improper because under the tariff, his payment should be deemed to have been made on September 29, 1997, the date of the postmark on the remittance of the payment. The ALJ found, however, that Peoples' employee reviewing the payment history on Aronson's account on October 3, 1997 did not have updated information regarding the receipt of his payment earlier that day. Moreover, Peoples never acted on the turn-off notice. As the ALJ stated: Mr. Aronson's claim that Peoples' issuance of a shut off notice is in some way an actionable violation is in error. Mr. Aronson chose the time to make his payments. The fact that his payment was technically received at or about the same time as the notice was being issued points out the impossibly high standard he wants Peoples to meet. It is important to notify customers that payment has not been received in a timely fashion *1213 so that if an oversight has occurred it can be corrected before any significant arrearage has accumulated. The ALJ's Initial Decision, pp. 25-26. Finally, Aronson asserts that Peoples improperly required the customers to talk to Peoples before filing a complaint with the PUC. The PUC regulations, however, require the public utilities to attempt to resolve disputes with the customer before an informal or formal complaint is filed with the PUC. The regulations at 52 Pa.Code § 56.141(1) provide: § 56.141 Dispute procedures. A notice of dispute, including termination disputes, shall proceed in the first instance, according to this section: (1) Attempted resolution. If, at any time prior to the actual termination of service, a ratepayer advises the utility that he disputes any matter covered by this chapter, including but not limited to credit determinations, ... the accuracy of utility metering and billing ..., the utility shall attempt to resolve the dispute in accordance with § 56.151 (relating to general rule). Moreover, the language used by Peoples in the turn-off notice complies with 52 Pa.Code § 56.2, which requires the termination notice to include, in conspicuous print, the following statement: "If, AFTER discussing your problem with the Utility you remain dissatisfied, you may file an informal complaint with the Public Utility Commission." We therefore reject Aronson's challenge to the turn-off notice.[5] Accordingly, the order of the PUC is affirmed. O R D E R AND NOW, this 16th day of November, 1999, the order of the Pennsylvania Public Utility Commission in the above-captioned matter is affirmed. NOTES [1] This Court's scope of review of the PUC's decision is limited to determining whether the PUC violated constitutional rights or committed an error of law, or whether its findings are supported by substantial evidence in the record. Loma, Inc. v. Pennsylvania Public Utility Commission, 682 A.2d 424 (Pa. Cmwlth.1996), appeal denied, 548 Pa. 675, 698 A.2d 597 (1997). [2] In Aronson v. Peoples Natural Gas Co., 180 F.3d 558 (3rd Cir.1999), a separate action filed by Aronson against Peoples, the United States Court of Appeals for the Third Circuit rejected Aronson's argument that TILA does not authorize the Federal Reserve Board to make a blanket exemption for public utilities and that the Federal Reserve Board must make an affirmative individualized determination that the state agency regulates utility charges before such charges become exempt from TILA. [3] In his written sworn testimony submitted at the hearing, Aronson described his educational background, which included graduation from a business school and a law school. [4] At the hearing, Peoples' witness stated that Peoples was considering addition of the language, "without past late payment charges," in explaining the late payment charge in the monthly billing statement, to clarify that the late charge is calculated at the rate of 1.5% of the owed amount, not including past late charges. Peoples' willingness to improve the billing statement, however, does not establish that the current monthly billing statements are inadequate and unreasonable. [5] Aronson argues, without citing any supporting authority, that this Court should report all decisions. Suffice it to note that a decision of whether to publish an opinion is up to this Court's discretion and does not implicate a constitutional right to due process, as Aronson asserts.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2318286/

156 F.Supp.2d 376 (2001) MANHATTAN TELECOMMUNICATIONS CORPORATION, INC. d/b/a Metropolitan Telecommunications a/k/a MetTel, Plaintiff, v. DIALAMERICA MARKETING, INC., Art Conway, Frank Conway, and John Redinger, Defendants. No. 01 CIV. 1342(SAS). United States District Court, S.D. New York. July 31, 2001. *377 *378 Joshua D. Rievman, Sheryl B. Galler, Hoguet Newman & Regal, LLP, New York City, for Plaintiff. Jeffrey M. Garrod, Michael S. Haratz, Orloff, Lowenbach, Stifelman & Siegel, P.A., Roseland, NJ, for Defendants. OPINION AND ORDER SCHEINDLIN, District Judge. Manhattan Telecommunications Corporation, Inc. d/b/a Metropolitan Telecommunications a/k/a MetTel ("MetTel") brings this action against DialAmerica Marketing, Inc. ("DialAmerica"), Art Conway, Frank Conway, and John Redinger (collectively, "Individual Defendants"), seeking to recover damages it suffered as a result of defendants' alleged fraudulent billing scheme. Plaintiff asserts three claims, only one of which arises under federal law. Specifically, plaintiff contends that defendants have engaged in a pattern of racketeering activity in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq.[1] Plaintiff also asserts pendent state law claims for common law fraud and breach of contract. Defendants now move to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), and 12(b)(6). For the reasons stated below, defendants' motion to dismiss is granted pursuant to Rules 12(b)(6) and 12(b)(1). I. BACKGROUND MetTel is a leading integrated communications provider that focuses on delivering voice and data services to the residential and business markets. See Amended Complaint ("Am.Compl.") ¶¶ 5, 10. In November 1998, MetTel commenced negotiations with DialAmerica, a provider of telemarketing services.[2]See id. ¶¶ 6, 12. Over the course of these negotiations, Frank Conway, an Account Executive for DialAmerica, represented that DialAmerica would bill MetTel only for the hours that DialAmerica's teleservice representatives ("TSRs") were actually engaged in telephone sales for MetTel; would not charge MetTel for training its TSRs; and would charge MetTel a flat rate of $27 per hour per TSR. See id. ¶¶ 14, 15, 16. In reliance on Frank Conway's oral representations, MetTel entered into an agreement with DialAmerica for telemarketing services. See id. ¶ 17. However, no agreement was memorialized until approximately four months later, on April 5, 1999. See id. ¶ 22. In early December 1998, DialAmerica began performing telemarketing services for MetTel. See id. ¶ 20. Each day, DialAmerica would transmit reports to MetTel via electronic mail showing the number of hours worked by DialAmerica's TSRs. See id. ¶ 25. DialAmerica also mailed monthly invoices to MetTel. See id. ¶ 26. Between December 1998 and September 2000, MetTel *379 paid in excess of $2.6 million to DialAmerica for its telemarketing services. See id. ¶ 27. In mid-October 2000, MetTel discovered, during a visit to one of DialAmerica's service centers, that DialAmerica's TSRs worked fewer hours than shown on DialAmerica's reports and invoices. See id. ¶¶ 32-33. On November 3, 2000, following MetTel's complaints to DialAmerica, "Frank Conway finally admitted that DialAmerica, together with and through the Individual Defendants, in the regular course of conducting its business, adds hours to the bills of customers who pay hourly rates in order to cover costs such as TSRs' breaks and ... training." Id. ¶ 36. Redinger, Frank Conway's supervisor, later admitted to the same practice of overbilling clients. See id. ¶¶ 9, 48. Art Conway, DialAmerica's president and controlling shareholder, is alleged to direct and control DialAmerica's fraudulent billing practices. See RICO Statement ¶ 6(c).[3] Plaintiff filed its complaint on February 23, 2001. The Amended Complaint and RICO Statement were filed on March 15, 2001. In Claim I of the Amended Complaint, plaintiff pleads a RICO claim under 18 U.S.C. § 1962(c) ("section 1962(c)"). Plaintiff maintains that all of the defendants were employed by or associated with an enterprise consisting of DialAmerica, MetTel and other unnamed DialAmerica customers who pay hourly rates to DialAmerica. See Am. Compl. ¶ 53. Furthermore, plaintiff alleges that by their fraudulent billing scheme, defendants conducted or participated in the affairs of the alleged enterprise through a pattern of racketeering activity consisting of mail and wire fraud. See id. ¶ 54. In Claim II for common law fraud against DialAmerica and Frank Conway, plaintiff asserts that Frank Conway, on behalf of DialAmerica, made knowingly false representations with the intent to deceive MetTel into contracting with DialAmerica. See id. ¶¶ 63-72. Finally, Claim III charges DialAmerica with breach of contract. See id. ¶¶ 73-81. II. LEGAL STANDARD Dismissal of a complaint for failure to state a claim pursuant to Rule 12(b)(6) is proper only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of [its] claim which would entitle [it] to relief." Harris v. City of New York, 186 F.3d 243, 247 (2d Cir.1999); see also Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir.1998) ("The task of the court in ruling on a Rule 12(b)(6) motion is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.") (quotation marks and citation omitted). To properly rule on a 12(b)(6) motion, the Court must accept as true all material facts alleged in the complaint and draw all reasonable inferences therefrom in the nonmovant's favor. See Harris, 186 F.3d at 247. However, "bald assertions and conclusions of law will not suffice" to defeat even the liberal standard applied to a Rule 12(b)(6) motion. Tarshis v. Riese Org., 211 F.3d 30, 35 (2d Cir.2000). III. DISCUSSION A. The RICO Claim To properly state a RICO claim for damages under section 1962(c), a plaintiff must allege: (1) a violation of the RICO statute; (2) an injury to business or property; and (3) that the injury was caused by the RICO violation. See De Falco v. Bernas, *380 244 F.3d 286, 305 (2d Cir.2001). Section 1962(c) makes it unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity .... 18 U.S.C. § 1962(c). To allege a violation of section 1962(c), "a plaintiff must show that he was injured by defendants' (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity." Cofacredit, S.A. v. Windsor Plumbing Supply Co., Inc., 187 F.3d 229, 242 (2d Cir.1999). The requirements of section 1962(c) must be sufficiently alleged as to each defendant. See De Falco, 244 F.3d at 306. In considering civil RICO claims, a court must be mindful of the devastating effect such claims may have on defendants. See Katzman v. Victoria's Secret Catalogue, 167 F.R.D. 649, 655 (S.D.N.Y.1996) ("Civil RICO is an unusually potent weapon — the litigation equivalent of a thermonuclear device.") (quotation marks and citation omitted). "`Because the mere assertion of a RICO claim ... has an almost inevitable stigmatizing effect on those named as defendants, ... courts should strive to flush out frivolous RICO allegations at an early stage of the litigation.'" Allen v. New World Coffee, Inc., No. 00 Civ. 2610, 2001 WL 293683, at *3 (S.D.N.Y. Mar. 27, 2001) (quoting Schmidt v. Fleet Bank, 16 F.Supp.2d 340, 346 (S.D.N.Y.1998) (quotation marks omitted)). "[C]ourts must always be on the lookout for the putative RICO case that is really nothing more than an ordinary fraud case clothed in the Emperor's trendy garb." Schmidt, 16 F.Supp.2d at 346 (quotation marks omitted). Defendants contend that MetTel has not adequately alleged a violation of section 1962(c) for three reasons: (1) the pleading of an alleged enterprise is legally flawed; (2) defendants' control of the conduct of the enterprise has not been adequately pled; and (3) plaintiff cannot show a pattern of racketeering activity because its claims of fraud fail as a matter of law. 1. Enterprise — General Principles Section 1961 of Title 18 defines an "enterprise" as "any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity." 18 U.S.C. § 1961(4). This language demonstrates that Congress sought to define the term enterprise "as broadly as possible", including within the definition both a legal entity and a group of individuals that comprise an "association in fact". United States v. Indelicato, 865 F.2d 1370, 1382 (2d Cir.1989) (citation omitted). The definition of an enterprise, however, is not without limits. An enterprise must be "a group of persons associated together for a common purpose of engaging in a course of conduct." United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981). To adequately allege the existence of an enterprise, the enterprise must be supported by "evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit." Id.; see also De Falco, 244 F.3d at 307. Where the plaintiff alleges an association-in-fact enterprise, rather than a legal entity, a court "must look to the hierarchy, organization, and activities of the association." Schmidt, 16 F.Supp.2d at 349 (quotation marks and citation omitted). The RICO enterprise "must exhibit structural continuity which exists where there is an organizational *381 pattern or system of authority that provides a mechanism for directing the group's affairs on a continuing, rather than an ad hoc, basis." Pavlov v. Bank of New York, 135 F.Supp.2d 426, 430 (S.D.N.Y.2001) (quotation marks and citations omitted). In addition, the RICO "enterprise" must be distinct from the RICO "person" — that is to say, the enterprise cannot merely consist of the named defendants. See Discon, Inc. v. NYNEX Corp., 93 F.3d 1055, 1063 (2d Cir.1996). The Supreme Court recently reaffirmed that principle in Cedric Kushner Promotions, Ltd. v. King, 531 U.S. 1050, ___, 121 S.Ct. 2087, 2090, 150 L.Ed.2d 198 (2001), where the Court stated: We do not quarrel with the basic principle that to establish liability under [section] 1962(c) one must allege and prove the existence of two distinct entities: (1) a "person"; and (2) an "enterprise" that is not simply the same "person" referred to by a different name. The statute's language, read as ordinary English, suggests that principle. The Act says that it applies to "person[s]" who are "employed by or associated with" the "enterprise." In ordinary English one speaks of employing, being employed by, or associating with others, not oneself. In addition, the Act's purposes are consistent with that principle. Whether the Act seeks to prevent a person from victimizing, say, a small business, or to prevent a person from using a corporation for criminal purposes, the person and the victim, or the person and the tool, are different entities, not the same. Id. at 2090 (citations omitted). See also Reves v. Ernst & Young, 507 U.S. 170, 185, 113 S.Ct. 1163, 122 L.Ed.2d 525 (1993) (stating that liability "depends on showing that the defendants conducted or participated in the conduct of the `enterprise's affairs,' not just their own affairs.") (emphasis in original). A plaintiff may not circumvent this "distinctness" requirement "by alleging a RICO enterprise that consists merely of a corporate defendant associated with its own employees or agents carrying on the regular affairs of the defendant ...." Riverwoods Chappaqua Corp. v. Marine Midland Bank, N.A., 30 F.3d 339, 344 (2d Cir.1994) (holding that the activities of two loan officers acting within the scope of their authority could not subject them to RICO liability for conducting the affairs of the alleged enterprise-bank). However, a corporate entity may be held liable as a RICO person "where it associates with others to form an enterprise that is sufficiently distinct from itself." Id.; see also Cullen v. Margiotta, 811 F.2d 698, 730 (2d Cir.1987) (stating that a defendant may be a "RICO `person' and one of a number of members of the RICO `enterprise'"). 2. Application MetTel alleges an association-infact enterprise consisting of DialAmerica, MetTel, and other unnamed customers who contracted to pay hourly rates to DialAmerica. As alleged in the RICO Statement, "[t]he usual and daily activities of the enterprise are DialAmerica's performance of telemarketing services on behalf of its customers including MetTel and billing its customers for those activities." RICO Statement ¶ 8. Additionally, the structure of the alleged enterprise is pled in the following language: Defendants Frank Conway and John Redinger conducted the affairs of the enterprise by managing DialAmerica's account with MetTel and other customers, supervising and monitoring DialAmerica's TSRs assigned to those accounts, and preparing and transmitting or mailing fraudulent reports and invoices from *382 DialAmerica to MetTel and other customers or causing such fraudulent reports and invoices to be prepared and transmitted or mailed. Defendant Art Conway conducted the affairs of the enterprise by directing the marketing and billing practices of DialAmerica and causing fraudulent reports and invoices to be prepared and transmitted or mailed to MetTel and other customers of DialAmerica. Id. ¶ 6(c). The alleged enterprise is a veiled attempt to bypass the distinctness requirement and to hold DialAmerica — ostensibly, the deep pocket defendant — liable as a RICO person.[4]See R.C.M. Executive Gallery Corp. v. Rols Capital Co., No. 93 Civ. 8571, 1997 WL 27059, at *8 n. 8 (S.D.N.Y. Jan. 23, 1997) ("The allegation that the plaintiffs were part of an associated-in-fact enterprise to defraud themselves is a transparent conclusory allegation that the Court is not bound to accept even on a motion to dismiss."). The alleged enterprise has no "organizational pattern or system of authority", Pavlov, 135 F.Supp.2d at 430, other than that embedded in the organization of DialAmerica. See Goldfine, 118 F.Supp.2d at 401 (dismissing RICO claim because, in part, "[p]laintiffs fail to allege any chain of command of the enterprise, or how, if at all[,] the alleged `members' functioned as an integrated group or directed the affairs of the alleged enterprise apart from the predicate acts themselves."). Plaintiff has failed to allege a single fact that demonstrates that DialAmerica, MetTel and other unknown customers of DialAmerica have united together to "function as a continuing unit" that has an actual existence, organization, and structure. Turkette, 452 U.S. at 583, 101 S.Ct. 2524. Moreover, the alleged purpose of the enterprise underscores that it is a fiction created by plaintiff to circumvent the distinctness requirement. According to plaintiff's RICO Statement, the purpose of the enterprise "is for MetTel and other customers to receive telemarketing sales services from DialAmerica and for DialAmerica to be compensated for its services at rates set by contract." RICO Statement ¶ 6(b). It is apparent, however, that this purpose is the business of DialAmerica. MetTel, DialAmerica, and DialAmerica's customers are no more united in an enterprise than any vendor and its customers. See First Nationwide Bank v. Gelt Funding Corp., 820 F.Supp. 89, 98 (S.D.N.Y.1993) (dismissing association-in-fact enterprise consisting of mortgage broker and different borrowers who had engaged in a series of unrelated loan transactions because plaintiff failed to specify the structure or personnel of the enterprise or how the various defendants came together as a group); Cullen v. Paine Webber Group, Inc., 689 F.Supp. 269, 273 (S.D.N.Y.1988) (clients of broker-plaintiffs did not constitute an enterprise "any more than would, for example, a stamp collection" because "[t]he clients of the broker-plaintiffs did not share a common purpose or associate together; their only link was their broker"). Indeed, plaintiff's allegation that it is associated in an enterprise with DialAmerica is belied by its contract, which explicitly states that the relationship between MetTel and DialAmerica "is solely that of independent contractors," not "employer/employee, franchisor/franchisee, agent/principal, partners, joint venturers, co-owners, or otherwise as participants in *383 a joint or common undertaking." 4/5/99 Metropolitan Telecommunications Sales Authorization Agreement, Ex. A to 4/12/01 Verification of John Redinger ¶ 6.1.[5]Cf. Medallion TV Enters. v. SelecTV of Cal., Inc., 627 F.Supp. 1290, 1295 (C.D.Cal.1986) (plaintiff adequately pled enterprise by alleging that it entered into joint venture with defendant), aff'd, 833 F.2d 1360 (9th Cir.1987). In short, while plaintiff's alleged enterprise is creative, no amount of artful pleading can create an enterprise out of such a loose connection of separate and independent business entities.[6] To construe the RICO statute to embrace plaintiff's alleged enterprise would broaden its scope far beyond anything Congress ever imagined. Plaintiff's proposed interpretation of the statute would essentially delete the enterprise element from the statute as every company would become a potential RICO "person" associated in an enterprise with its customers. Accordingly, plaintiff's RICO claim is dismissed.[7] B. Supplemental Jurisdiction Pursuant to 28 U.S.C. § 1367(c)(3), a district court may decline to exercise supplemental jurisdiction over state law claims where "the district court has dismissed all claims over which it has original jurisdiction." Because plaintiff's RICO claim — its only federal claim — cannot survive dismissal, I decline to exercise supplemental jurisdiction over plaintiff's claims of common law fraud or breach of contract. See Martinez v. Simonetti, 202 F.3d 625, 636 (2d Cir.2000) (directing dismissal of supplemental state law claims where no federal claims remained).[8] IV. CONCLUSION For the reasons stated above, defendants' motion to dismiss the Amended *384 Complaint is granted. The Clerk of the Court is directed to close this case. SO ORDERED. NOTES [1] Federal jurisdiction is based on 28 U.S.C. § 1331, federal question jurisdiction, and 18 U.S.C. § 1964, which authorizes federal courts to hear RICO suits. There is no assertion of diversity jurisdiction. [2] Both MetTel and DialAmerica are Delaware corporations. See Am. Compl. ¶¶ 5, 6. MetTel's principal place of business is in New York and DialAmerica's principal place of business is in New Jersey. See id. ¶ 6. [3] For purposes of a motion to dismiss, the RICO Statement is deemed to be part of the complaint. See Goldfine v. Sichenzia, 118 F.Supp.2d 392, 396 (S.D.N.Y.2000). [4] Indeed, in its original complaint, plaintiff alleged that the RICO enterprise consisted only of DialAmerica and the Individual Defendants, see Complaint ¶ 48, thereby running afoul of the distinctness requirement. See Riverwoods, 30 F.3d at 344. [5] Although not attached as an exhibit, the contract between MetTel and DialAmerica is quoted in the Amended Complaint, see Am. Compl. ¶¶ 75, 76, and is essential to plaintiff's breach of contract claim. Therefore, it is necessarily incorporated in the Amended Complaint and can be properly considered by this Court as part of the pleadings. See Cortec Indus. Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir.1991) (finding that documents referred to or incorporated in the complaint may properly be considered by the district court, even if those documents are not attached as exhibits). [6] I do not suggest that a victim of racketeering activity can never unite with a RICO "person" to form an enterprise. Indeed, this very question has deeply divided the circuit courts of appeals as well as the district courts. Compare Jaguar Cars, Inc. v. Royal Oaks Motor Car Co., Inc., 46 F.3d 258, 266-67 (3d Cir.1995) (rejecting claim that corporation can be the enterprise victimized by the racketeering activities of the defendant "persons"), with Shapo v. Engle, No. 98 C 7909, 1999 WL 1045086, at *8-*9 (N.D.Ill. Nov. 12, 1999) (disagreeing with Jaguar Cars), Hansel `N Gretel Brand, Inc., Savitsky, No. 94 Civ. 4027, 1997 WL 543088, at *3 (S.D.N.Y. Sept. 3, 1997) (disagreeing with Jaguar Cars), and Com-Tech Assoc. v. Computer Assoc. Int'l, 753 F.Supp. 1078, 1088 (E.D.N.Y.1990) ("Even though the plaintiffs themselves are also the `enterprise', it is permissible for the victimized enterprise to sue for damages under RICO, so long as it is alleged that the defendants conducted the enterprise through a pattern of racketeering activity.") (emphasis in original). Because plaintiff has not adequately pled the existence of an enterprise, the question of whether a plaintiff-victim may be a member of the enterprise need not be addressed or decided. [7] Because the RICO claim is deficient for failure to adequately plead an enterprise, it is unnecessary to reach the merits of defendants' other grounds for dismissal of the RICO claim. [8] Because this Court declines to exercise supplemental jurisdiction over plaintiff's state law claims, it is unnecessary to reach the merits of those claims.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/818915/

SLIP-OP 03 - 83 UNITED STATES COURT OF INTERNATIONAL TRADE : ANSHAN IRON & STEEL COMPANY, LTD., : et al., : : Plaintiffs, : : v. : Before: Wallach, Judge : Cons. Court No: 02-00088 UNITED STATES OF AMERICA, : : Defendant, : : and : : BETHLEHEM STEEL CORPORATION, et al., : and GALLATIN STEEL COMPANY, et al., : : Defendant-Intervenors. : __________________________________________: [Motion for Judgment upon the Agency Record Denied. Commerce’s Final Determination Affirmed in Part and Remanded in Part.] Decided: July 16, 2003 Lafave & Sailer LLP (Francis J. Sailer), for Plaintiff Anshan Iron & Steel Co., Ltd. and Benxi Iron & Steel (Group) Co., Ltd. White & Case LLP (William J. Clinton), for Plaintiff Shanghai Baosteel Group Corp., Baosteel America, Inc., and Baosteel Group International Trade Corp. Robert D. McCallum, Jr., Assistant Attorney General; David M. Cohen, Director; Lucius B. Lau, Assistant Director; Stephen C. Tosini, Trial Attorney; Arthur D. Sidney, Office of Chief Counsel for Import Administration, U.S. Department of Commerce, of counsel, for Defendant. Dewey Ballantine LLP (Bradford L. Ward), for Defendant-Intervenors Behtlehem Steel Corp., 1 National Steel Corp. and United States Steel Corp. Schagrin Associates (Roger B. Schagrin), for Defendant-Intervenors Gallatin Steel Co., IPSCO Steel Inc., Nucor Corp., Steel Dynamics, Inc. and Weirton Steel Corp. OPINION Evan J. WALLACH, Judge. I. Introduction Plaintiffs Anshan Iron & Steel Company, Ltd., New Iron & Steel Company, Ltd. and Angang Group International Trade Corporation (“Plaintiff Anshan” or “Anshan”); Benxi Iron & Steel Company, Ltd., Benxi Steel Plate Company, Ltd., and Benxi Iron & Steel Group International Economic and Trade Company, Ltd. (“Plaintiff Benxi” or “Benxi”); and Shanghai Baosteel Group Corporation, Baosteel American, Inc., and Baosteel Group International Trade Corporation (“Plaintiff Baosteel” or “Baosteel”) (collectively “Plaintiffs”) move for judgment upon the agency record pursuant to USCIT Rule 56.2, challenging the decision of the United States Department of Commerce, International Trade Administration (the “Department,” “Commerce” or “ITA”) in Final Determination of Sales at Less Than Fair Value: Certain Hot Rolled Carbon Steel Flat Products from the People’s Republic of China, 66 Fed. Reg. 49632 (Sept. 28, 2001) (“Final Determination”) and the accompanying Issues and Decision 2 Memorandum for the Less than Fair Value Investigation of Certain Hot Rolled Carbon Steel Flat Products from the People’s Republic of China: April 1, 2000 through September 30, 2000 (Sept. 21, 2000) (“Decision Memo”). Pub. Doc. 349, Appendix to Memorandum of Law in Support of Baosteel’s Rule 56.2 Motion for Judgment Upon The Agency Record (“Baosteel App.”) Attachment 4. Plaintiffs primarily contest Commerce’s determination that proper valuation of Plaintiffs’ factors of production necessitates the assignment of surrogate values to Plaintiffs’ self- produced intermediate inputs rather than the assignment of factors of production for those inputs. Plaintiffs also dispute additional aspects of the Final Determination, namely: (1) Commerce’s alleged reliance on information outside the record; (2) Commerce’s reliance on a single Indian company for purposes of deriving surrogate financial ratios; (3) Commerce’s selection of surrogate values for steel scrap and iron ore; (4) Commerce’s valuation of coking coal and Silicon Barium Strontium Aluminum; (5) Commerce’s alleged failure to adjust Plaintiff Baosteel’s factors of production for its defective hot-rolled sheets; and (6) Commerce’s inclusion of factors of production for all of the producers in the Baosteel Group. For the reasons set forth below, the Final Determination is affirmed in part and remanded in part. II. Background Plaintiffs are producers and exporters of the subject merchandise, certain hot-rolled carbon steel flat products, from China. In the production of hot-rolled steel, Plaintiffs 3 incorporate purchased and self-produced inputs. Self-produced inputs include electricity generated from the processing of purchased coal, in addition to oxygen, nitrogen, and argon gases. These intermediate inputs are produced from purchased materials, including, inter alia, iron ore, scrap, coal, water, and various chemicals. On February 26, 2001, Plaintiffs provided a factors of production database to the Commerce Department, in which they reported their consumption of coal and other material, energy, and labor factors used to produce the intermediate inputs. During on-site verification, Commerce verified the accuracy of the reported factors. In Notice of Preliminary Determination of Sales at Less Than Fair Value: Certain Hot- Rolled Carbon Steel Flat Products From the People’s Republic of China, 66 Fed. Reg. 22,183 (May 3, 2001) (“Preliminary Determination”), Commerce did not include valuations for Plaintiffs’ factors of production database, but rather assigned surrogate values to Plaintiffs’ intermediary inputs. In order to calculate general expenses, Commerce used the average of two Indian steel producers’ (Tata Iron and Steel Company, Ltd. (“TATA”) and Steel Authority of India, Ltd. (“SAIL”)) 1999-2000 financial statements. For profit, Commerce used information from TATA. Id. at 22,193. In the Final Determination, Commerce continued to value plaintiffs’ factors of production according to their intermediate inputs. As for general expenses and profit, Commerce relied solely on a 2000-2001 financial statement of TATA Steel instead of a combination of the two steel companies. On October 15, 2001, and October 31, 2001, Plaintiffs Anshan, Benxi and Baosteel submitted letters to Commerce requesting an opportunity to comment on allegedly new 4 information referenced in Commerce’s final determination. Commerce rejected and returned plaintiffs’ letters on the ground that the letter contained untimely argumentation. III. Jurisdiction and Standard of Review The court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (1994). In reviewing the Final Determination, the court “shall hold unlawful any determination, finding, or conclusion found . . . to be unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B) (1999). “Substantial evidence is something more than a ‘mere scintilla,’ and must be enough reasonably to support a conclusion.” Primary Steel, Inc. v. United States, 17 CIT 1080, 1085, 834 F.Supp. 1375, 1380 (1993) (citing Ceramica Regiomontana, S.A. v. United States, 10 CIT 399, 405, 636 F.Supp. 961, 966 (1986), aff’d, 810 F.2d 1137 (Fed. Cir. 1987)). “As long as the agency’s methodology and procedures are reasonable means of effectuating the statutory purpose, and there is substantial evidence in the record supporting the agency’s conclusions, the court will not impose its own views as to the sufficiency of the agency’s investigation or question the agency’s methodology.” Ceramica Regiomontana, 10 CIT at 404-5. 5 IV. Analysis 1. Commerce’s Valuation of Plaintiffs’ Intermediate Inputs is Unsupported by the Evidence and Not in Accordance With Law Plaintiffs claim Commerce incorrectly valued Plaintiffs’ factors of production by assigning surrogate values to respondents’ intermediate inputs instead of to the factors of production for those intermediate inputs. In the Final Determination, Commerce determined that it would continue “to value respondents’ energy inputs (i.e., oxygen, argon, nitrogen, and electricity) through the use of surrogate valuation, rather than based on surrogate valuation of the factors going into the production of those inputs.” Decision Memo at Comment 2. According to Plaintiffs: (1) Commerce deviated from its past practice without providing Plaintiffs an opportunity to comment on a new methodology for the valuation of intermediate inputs; and (2) Commerce’s decision to assign surrogate values to intermediate inputs was unsupported by substantial evidence because the record contained verified factors of production for those intermediate inputs. In valuing Plaintiffs’ intermediate inputs, Commerce deviated from its well-established practice of assigning surrogate values to the factors of production for those intermediate inputs without providing an adequate explanation for such deviation. Commerce’s failure to rely on Plaintiffs’ submitted and verified factors of production is also inconsistent with the statute’s directive to use the best available information to construct a nonmarket economy (“NME”) 6 product’s normal value as it would have been if the NME were a market economy country. a. Commerce’s Established Practice is to Value The Factors Of Production for Self-Produced Intermediate Inputs The antidumping statute provides that if subject merchandise is exported from an NME, and “the administering authority finds that available information does not permit the normal value of the subject merchandise to be determined,” Commerce “shall determine the normal value of the subject merchandise on the basis of the value of the factors of production utilized in producing the merchandise.” 19 U.S.C. § 1677b(c)(1) (1999). In valuing factors of production, Commerce is to “utilize, to the extent possible, the prices of costs of factors of production in one or more market economy countries that are . . . at a level of economic development comparable to that of the nonmarket economy country, and . . . significant producers of comparable merchandise.” Id. § 1677b(c)(4). Commerce must also value these factors of production “based on the best available information regarding the values of such factors in a market economy country or countries considered to be appropriate by the administering authority.”1 Id. § 1677b(c)(1). While the statute does not define “best available information,” it “grants to Commerce broad discretion to determine the ‘best available information’ in a reasonable manner on a case-by-case basis.” Timken Co. v. United States, 2001 CIT 96, 166 F. Supp. 2d 608, 616 (2001). 1 19 U.S.C. § 1677b(c)(3) provides that factors of production may include hours of labor required, quantities of raw materials employed, amounts of energy and other utilities consumed, and representative capital cost, including depreciation. 19 U.S.C. § 1677b(c)(3). 7 Although Commerce benefits from a certain amount of discretion, this court has consistently interpreted 19 U.S.C. § 1677b(c) to require determination of an NME product’s normal value as it would have been if the NME were a market economy country. See Baoding Yude Chem. Indus. Co. v. United States, 170 F. Supp. 2d 1335, 1337 (2001); see also Nation Ford Chem. Co. v. United States, 21 CIT 1371, 1372, 985 F. Supp. 133, 134 (1997), aff’d, 166 F.3d 1373 (Fed. Cir. 1999). In valuing self-produced intermediate inputs, Commerce’s normal practice has therefore been to calculate a respondent’s self-produced intermediate inputs by assigning a surrogate value to the factors of production going into the production of those intermediate inputs.2 In Final Determination of Sales at Less Than Fair Value: Certain Cut-to- Length Carbon Steel Plate from the People’s Republic of China (“CTL Plate”), 62 Fed. Reg. 61,964 (Nov. 20, 1997), for instance, Commerce refused to disregard the reported and verified intermediate input factors of production that had been submitted by the respondents. Commerce said that: the value of the subject merchandise in this case is more accurately measured if the self-produced gases are valued based on the actual inputs used to make these gases. In NME cases, the Department selects the surrogate values that reflect best the costs that would have been incurred in producing the subject merchandise if the costs of such production had been determined by market forces. 2 See CTL Plate, 62 Fed. Reg. 61,964, 61,966 (Nov. 20, 1997); Final Determination of Sales at Less Than Fair Value: Coumarin From the People’s Republic of China, 59 Fed. Reg. 66,895, 66,899 (Dec. 28, 1994) (stating that “under section 773 of the Act it is appropriate to value all of the factors or production, including intermediate inputs captively-produced by the responding producer,” and that “this methodology is consistent with Department practice in NME cases”); Silicomanganese From the People’s Republic of China: Notice of Final Results of Antidumping Duty Administrative Review, 65 Fed. Reg. 31,514, 31,515 (May 18, 2000) and accompanying Issues and Decision Memorandum (May 18, 2000) (the Department’s “established practice” is to “valu[e] self-produced inputs using the value of the materials, energy and labor employed to manufacture the input”). 8 Id. at 61,976, Decision Memorandum at Comment 11. Commerce went on to summarize its practice as follows: It is the Department’s practice to collect data on all direct inputs actually used to produce the subject merchandise, including any indirect inputs used in the in-house production of any direct input. Id. (emphasis added). Commerce’s practice is based on a statutory mandate to accurately estimate the actual experiences of an NME respondent as if it were a market economy. Defendant-Intervenors Bethlehem claim that the statute requires Commerce “to build[] up its factors of production based on the quantities of the inputs used, not on the upstream costs associated with the production of those inputs.” See Memorandum of Defendant-Intervenors Bethlehem Steel Corporation, National Steel Corporation, and United States Steel Corporation In Response to Plaintiffs’ Motions For Judgment On The Agency Record (“Bethlehem Memo”) at 12. According to Bethlehem, “regardless of whether an NME producer of the subject merchandise purchases or produces the inputs, the Department, in calculating normal value, utilizes the quantities of the inputs actually consumed by the NME producer in the production of the subject merchandise.” Id. Both Defendant and Defendant-Intervenors claim this practice has been established by Commerce in Freshwater Crawfish Tail Meat from the People’s Republic of China: Final Results of Administrative Antidumping Duty and New Shipper Reviews, and Final Rescission of New Shipper Review, 65 Fed. Reg. 20,948 (Apr. 19, 2000) (“Crawfish from the PRC”), and Final Determination of Sales at Less Than Fair Value: Foundry Coke Products from the People’s Republic of China, 66 Fed. Reg. 39,487 (July 31, 2001) (“Foundry Coke from the 9 PRC”), and affirmed by this court in Pacific Giant, Inc. v. United States, 223 F. Supp. 2d 1336 (2002).3 Although Pacific Giant dealt with the proper valuation of factors of production, the facts and holding of the case fail to address the proper valuation of self-produced intermediate inputs. There, Chinese crawfish producers argued Commerce should not assign any value to the water consumed during crawfish tailmeat production. Pac. Giant, 223 F. Supp. 2d at 1346. Because no cost was incurred for the water, the producers maintained Commerce should instead assign a value to the electricity used to pump water from their wells. Id. In response, Commerce argued that (1) water was a factor of production even though no cost was associated with its use, and (2) no record evidence existed that electricity costs for pumping water had been reported to Commerce. Id. The court never discussed electricity as a factor of production for water consumption, nor did it weigh the importance of valuing one over the other. The central issue was not whether water should be valued as an intermediate input, but rather whether water is a factor of production even though no cost is associated with its usage. Id. Similarly, in Crawfish from the PRC, a crawfish producer argued that no value should be assigned to raw crawfish because it was not a factor of production. Crawfish from the PRC, 65 Fed. Reg. 20,948, and accompanying Issues and Decision Memorandum at Comment 27. The 3 Defendant-Intervenors also cite to Notice of Final Determination of Sales at Less Than Fair Value: Structural Steel Beams From the People’s Republic of China , 67 Fed. Reg. 35,479 (May 20, 2002), Notice of Preliminary Determination of Sales at Less Than Fair Value: Certain Cold-Rolled Carbon Steel Flat Products From the People’s Republic of China, 67 Fed. Reg. 31,235 (May 9, 2002), and Notice of Final Determination of Sales at Less Than Fair Value: Carbon and Certain Alloy Steel Wire Rod From Ukraine, 67 Fed. Reg. 55,785 (Aug. 30, 2002), as evidence of Commerce’s past practice. These determinations, however, were based on the final determination under review in the present case. 10 producer maintained that because it collected live crawfish using company-employed laborers, only the labor cost should be a relevant factor of production. The Department held that it is the quantities of inputs that is relevant, and not the costs associated with those inputs. Id. Commerce reasoned that since raw crawfish was a factor of production, the fact that it was purchased or collected became irrelevant. Commerce, however, never considered live crawfish an intermediate input. On the contrary, Commerce emphasized the primary nature of the input at issue (i.e., crawfish), stating that “whether [respondent] purchased or collected crawfish, the Department still utilizes the quantities of raw materials employed during its calculation of constructed value.” Id. (emphasis added). Commerce was thus not faced with the issue of determining whether a self-produced intermediate input should be valued based upon its factors of production. Foundry Coke from the PRC similarly does not support Defendant and Defendant- Intervenor Bethlehem’s position. In Foundry Coke from the PRC, respondents argued that coal purchased from affiliates should be treated as a self-produced input and that surrogate values should be assigned to the actual inputs used to produce the coal (i.e., the intermediate input). Foundry Coke from the PRC, 66 Fed. Reg. 39,487, and accompanying Issues and Decision Memorandum at Comment 3. Commerce simply concluded that “[b]ased on the record facts, we do not consider that coal is a self-produced input for any of the respondents. . . . Therefore, we did not value coal using the factors of production for coal from the coal mines.” Id. This court subsequently remanded the issue in CITIC Trading Co. v. United States, Slip Op. 03-23, 2003 Ct. Int’l Trade LEXIS 33 (Mar. 4, 2003), holding that Commerce had failed to adequately explain why it did not consider respondents’ coal a self-produced input. The court specifically concluded 11 that “a remand is necessary so that Commerce may properly determine whether applying a factors of production methodology to the coal produced by the related coal mines is appropriate.” Id. at 32-33, 2003 Ct. Intl. Trade LEXIS at 48. The key issue therefore was not whether coal should be valued as an intermediate input, but rather whether coal was or was not a self-produced input. Defendant-Intervenors Gallatin further claim that 19 U.S.C. § 1677b(c) vests Commerce with broad discretion in constructing normal values in nonmarket economy cases. See Memorandum of Gallatin Steel Co.; IPSCO Steel Inc.; Nucor Corporation; Steel Dynamics, Inc.; and Weirton Steel Corporation in Response to Plaintiffs’ Rule 56.2 Motions For Judgment On The Agency Record (“Gallatin Memo”) at 7. According to Defendant-Intervenors Gallatin, “[s]ince the statute does not specify what constitutes best available information, these decisions are largely within Commerce’s discretion.” Gallatin Memo at 7-8. However, none of the cases cited by Defendant-Intervenors Gallatin address Commerce’s discretion in deciding whether to value a respondent’s factors of production for self-produced intermediate inputs.4 As Plaintiff Baosteel correctly points out, the issue here is not about the best values for Plaintiffs’ intermediate inputs, but rather, the selection of appropriate factors for valuation. See Reply in Support Of Plaintiff Baosteel’s CIT Rule 56.2 Motion For Judgment Upon The Agency Record (“Baosteel’s Reply”) at 8. 4 See, e.g., Nation Ford Chem. Co. v. United States, 166 F.3d 1373, 1377 (“While § 1677b(c) provides guidelines to assist Commerce in this process, this section also accords Commerce wide discretion in the valuation of factors of production in the application of those guidelines.”); Shakeproof Assembly Components Div. of Ill. Tool Works, Inc. v. United States, 23 CIT 479, 481, 59 F. Supp. 2d 1354, 1357 (“[T]he very structure of the statute suggests Congress intended to vest discretion in Commerce by providing only a framework within which to work.”); Olympia Indus. v. United States, 7 F. Supp. 2d 997, 1000 (CIT 1998) (“The relevant statute . . . does not clearly delineate how Commerce should determine what constitutes the best available information.”). 12 Defendant and Defendant-Intervenors have failed to provide any authority supporting the proposition that Commerce’s established practice is to value self-produced intermediate inputs based on the intermediate inputs’ value. In light of CTL Plate and Commerce’s practice of valuing the factors of production of self-produced intermediate inputs, analysis must turn to whether Commerce provided an adequate explanation for its departure from well-established practice. b. Commerce’s Reasoning For its Change Of Practice is Unsupported by the Evidence and Not in Accordance With Law Commerce is generally at liberty to discard one methodology in favor of another where necessary to calculate a more accurate dumping margin, subject to two important restrictions. Fujian Mach. & Equip. Imp. & Exp. Corp. v. United States, 178 F. Supp. 2d 1305, 1327 (CIT 2001). First, Commerce may not alter its methodology where a respondent has detrimentally relied on an old methodology used in previous reviews. See, e.g., Shikoku Chems. Corp. v. United States, 16 CIT 382, 388-389, 795 F. Supp. 417 (1992). Second, Commerce must explain the basis for its change of methodology and demonstrate that its explanation is in accordance with law and supported by substantial evidence. Cultivos Miramonte S.A. v. United States, 21 CIT 1059, 1064, 980 F. Supp. 1268, 1274 (1997); Fujian Mach., 178 F. Supp. 2d at 1327-28. Pursuant to 19 U.S.C. § 1677m(g), Commerce must also provide the parties affected by the change a final opportunity to comment before the Final Determination. 19 U.S.C. § 1677m(g)(1999). 13 In this case, Commerce provided several reasons for its decision to assign surrogate values to Plaintiffs’ intermediate inputs instead of the factors going into the production of those inputs. First, Commerce reasoned that the use of Plaintiffs’ factors of production data would result in a mathematically incorrect result. Decision Memo at Comment 2. For purposes of surrogate value calculations, Commerce relied on the financial statements of only one surrogate producer: TATA. According to Commerce, TATA purchased energy, and “[t]his purchased power, which is included in the amount for materials, labor, and energy, is a fully loaded cost.” Id. Commerce therefore concluded that “[b]ecause respondents are self-producing some or all of their energy, by applying a financial ratio which includes in its denominator fully loaded energy costs to factors which contain a small portion, if any, of respondents’ energy costs, the Department would be understating normal value.” Id. Commerce also reasoned that Plaintiffs’ “self generation of the energy inputs in question (i.e., electricity, argon, oxygen, and nitrogen) is a heavily capital intensive process.” Id. According to Commerce, Plaintiffs’ capital intensive process would result in further inaccuracies because these “capital costs . . . do not appear on TATA’s financial statements and would not be included in the normal value under respondents’ preferred methodology.” Id. Finally, Commerce explained that, apart from mathematical inaccuracies, Plaintiffs’ preferred methodology would require Commerce “to conduct in essence two investigations, one into the production of the subject merchandise and another into the production of the inputs into certain factors.” Id. Implicit in this statement is Commerce’s conclusion that conducting two investigations would be excessive and unnecessary. Both Defendant and Defendant-Intervenor Bethlehem claim Commerce’s reasoning is 14 supported by substantial evidence. According to Bethlehem, it is the consumption of inputs and not the purchase or production of inputs that is of importance when assigning surrogate values. Bethlehem Memo at 12. Bethlehem argues that if Commerce were to follow Plaintiffs’ methodologies, it would result in mathematical inaccuracies because financial ratios including all the costs of production (i.e., depreciation, financial expense, etc.) would be applied to factors of production including no costs of production. In other words, it would result in an understatement of normal value because the financial ratio’s denominator would be inflated in comparison to Plaintiffs’ factors of production.5 Id. at 19-20. Bethlehem further argues that focusing on “upstream” inputs would, as explained by Commerce in the Final Determination, result in a needless expansion of Commerce’s factors of production analysis. Id. at 21. As Plaintiffs correctly point out, however, Commerce’s conclusion is entirely based on its capital valuation of Plaintiffs’ and TATA’s electrical and gas production facilities. See Brief of Plaintiffs in Support of Rule 56.2 Motion (“Anshan Brief”); Memorandum of Law in Support of Baosteel’s Rule 56.2 Motion for Judgment Upon the Agency Record (“Baosteel Memo”) at 25. According to Commerce, Plaintiffs’ self-generation of energy inputs is “capital intensive,” whereas TATA’s is not because it purchases its energy. Decision Memorandum at Comment 2. Commerce simply bases this conclusion on one line in TATA’s financial statements indicating that it purchases power. Id. The fact that TATA purchases power, however, does not negate the 5 Financial ratios are used to determine overhead, financial and selling, general and administrative factors (“E”). The denominator consists of the surrogate’s material, labor, and energy costs (“Y”). Consequently, if (1/Y x (surrogate value)) = E, and (E + (surrogate value)) = normal value (“NV”), then the greater Y is, the smaller NV becomes. 15 possibility that it produces power as well.6 In fact, as Plaintiff Anshan points out, the same excerpts of TATA’s financial statements supporting Commerce’s “purchase of power” conclusion also seem to indicate that TATA derived a certain amount of income from the “Sale of power and water.” See Anshan Brief at 20; Petitioners’ Surrogate Value Submission, June 19, 2001, page 32, reprinted in Appendix of Public Documents Cited in Brief of Plaintiffs in Support of Rule 56.2 Motion Part B (“Anshan App. Part B”), AR282. Nowhere in the Final Determination does Commerce address the issue, nor does it provide any further explanation as to its rationale that a company’s purchase of power excludes the possibility of its production. Indeed, Commerce acknowledged TATA’s electricity production capabilities in a recent determination.7 See Notice of Preliminary Determination of Sales at Less Than Fair Value: Certain Cold-Rolled Carbon Steel Flat Products From the People’s Republic of China, 67 Fed. Reg. 31,235, 31,239 (May 9, 2002) (“Cold-Rolled Carbon Steel”). In Cold-Rolled Carbon Steel, Commerce stated: In this case, as explained below, to value overhead, selling general and administrative (“SG&A”), interest, and profit, we are relying on the 2000- 2001 financial statements of Steel Authority of India Limited (“SAIL”) and TATA Steel (“TATA”), both of whom are Indian integrated steel producers of cold-rolled steel. The financial statements of both companies . . . indicate that during the 2000-2001 financial year SAIL and TATA self 6 For instance, Plaintiff Baosteel both produced and purchased electricity during the period of investigation. See Baosteel’s Brief at 25; see also Baosteel’s February 26, 2002 Section D response, at D-13, Baosteel App., Attachment 8. 7 Although Commerce issued this determination subsequent to the determination under review in the present case, this court may take judicial notice of subsequent events that are properly brought before the court’s attention. See Borlem S.A. - Empreedimentos Industriais v. United States, 913 F.2d 933, 937 (Fed. Cir. 1990) (noting that deference is not owed to a determination that is based on data that the agency generating those data indicates are incorrect), cited in Union Camp Corp. v. United States, 23 CIT 264, 53 F. Supp. 2d 1310, 1325 (1999). 16 produced approximately 60 and 54 percent, respectively, of the electricity they consumed. Id. Commerce’s decision in the present case therefore directly contradicts its previous acknowledgment that, during the year in question, TATA produced a significant amount of the electricity it consumed. Even if TATA did not produce power, no implication would arise regarding its use of oxygen, argon, and nitrogen. Commerce fails to provide any explanation as to why TATA would treat such elemental gases as power inputs, nor how they could be used to “produce power.” As stated by Plaintiff Baosteel, “[i]t is general knowledge, especially to Commerce, which has conducted hundreds of investigations and administrative reviews involving steel products, that oxygen facilitates burning in the blast furnace, nitrogen helps to anneal steel, and argon is used to flush molten metal to remove dissolved gases.” Baosteel Memo at 31. Consequently, even if Commerce’s conclusion regarding TATA’s purchase of power were supported by substantial evidence, it would remain inapplicable to TATA’s oxygen, argon, and nitrogen production capacity. Commerce’s additional explanation that Plaintiffs’ methodology would require it to conduct two investigations (i.e., one into the production of subject merchandise and another into the production of the inputs into certain factors) is similarly unsupported by substantial evidence and contrary to statutory authority. The record in the present case contained complete and verified factors of production for electricity and industrial gases.8 Moreover, the alleged 8 See e.g., Angang Verification Report at 9, 11 and Verification Exhibits 12 (gases) and 13 (electricity); and Benxi Verification Report at 8, 9 and Verification Exhibits 11 (electricity) and 13 (gases (oxygen)), reprinted in Appendix of Business Proprietary Documents Cited in 17 difficulty of determining factors of production for intermediate inputs stands in sharp contrast to Commerce’s treatment of other intermediate inputs in the present case. See Baosteel’s Reply at 5; see also Baosteel’s February 26, 2001 Section D response, Baosteel App. at Attachment 8. Commerce has therefore failed to provide any evidence that this alleged difficulty in conducting an investigation into a respondent’s factors of production for self-produced intermediate inputs is any more complex than any other factors of production analysis conducted in previous investigations. Commerce’s rationale would unfairly disadvantage any NME producer wishing to produce its own inputs. This conclusion is contrary to the statute’s directive to use the “best available information regarding the values of such factors in a market economy country or countries considered to be appropriate by the administering authority.” 19 U.S.C. § 1677b(c)(1). On this basis, this court finds that Commerce’s decision to assign surrogate values to Plaintiffs’ intermediate inputs constitutes a deviation from its established practice to value the factors of production of self-produced intermediate inputs. Commerce has failed to provide an adequate explanation, supported by substantial evidence and in accordance with law, for its deviation from established practice. A remand is necessary so that Commerce may either (1) provide an adequate explanation for its deviation from previous practice, or (2) assign surrogate values to Plaintiffs’ factors of production for its self-produced intermediate inputs.9 Brief of Plaintiffs in Support of Rule 56.2 Motion Part A (“Anshan App. Part A”); see also Baosteel Verification Report at 17-18, Baosteel App. at Attachment 9. 9 Because Commerce’s decision to value Plaintiffs’ intermediate input was not supported by substantial evidence, this court will not examine Plaintiffs’ additional claim that Commerce relied on information outside of the record without providing Plaintiffs an opportunity to comment upon such evidence. 18 2. Commerce Properly Exercised its Discretionary Judgment in Choosing to Rely on the TATA 2000-2001 Financial Statements To Derive Plaintiffs’ Surrogate Financial Ratios As previously discussed, Commerce must value a respondent’s factors of production “based on the best available information regarding the values of such factors in a market economy country or countries considered to be appropriate by the administering authority.” Id. The NME regulations provide that for “manufacturing overhead, general expenses, and profit . . . the [Department] normally will use non-proprietary information gathered from producers of identical or comparable merchandise in the surrogate country.” 19 C.F.R. §351.408(c)(4). In selecting surrogate values, “the statute grants to Commerce broad discretion to determine the ‘best available information’ in a reasonable manner on a case-by-case basis.” Timken Co. v. United States, 201 F. Supp. 2d 1316, 1319 (CIT 2002). In the Preliminary Determination, Commerce relied on the 1999-2000 financial statements of two Indian steel manufacturers: SAIL and TATA. In the final determination, however, Commerce relied solely on a 2000-2001 TATA annual report submitted by petitioners subsequent to the preliminary determination. Commerce explained: There are several factors concerning SAIL’s 1999-2000 financial statements which, when considered together, lead to a determination that they are not an appropriate basis on which to value surrogate overhead, SG&A, and profit. SAIL’s 1999-2000 financial statements are not contemporaneous with the POI, SAIL did not make a profit in fiscal year 1999-2000, and SAIL embarked on a substantial government sanctioned financial and business restructuring plan during fiscal year 1999-2000, which envisaged the waiver of loans, write-down of assets, and government subsidies. 19 Decision Memo at Comment 4. Plaintiffs claim Commerce improperly excluded the 1999-2000 SAIL financial account from its surrogate financial ratio calculations. According to Anshan,“[c]ombining SAIL’s and Tata’s financial experience provides a much better chance that the Department’s financial ratios will not be aberrational and improper.” Anshan Brief at 28. Although Plaintiffs concede that the 2000-2001 TATA accounts are more contemporaneous to the POI, Plaintiffs claim that it is Commerce’s practice to emphasize representativeness over contemporaneity. According to Plaintiffs, it is Commerce’s long-standing practice to base surrogate values on multiple producers even if it means resorting to less contemporaneous financial data. Baosteel Memo at 40. Plaintiff Baosteel further disputes Commerce’s conclusion that subsidized and unprofitable surrogate producers are not representative of the surrogate industry. According to Baosteel, it was improper for Commerce to base its exclusion of the SAIL account based on unprofitability because “the largest segment of the domestic industry in fact was not profitable.” Id. at 41. Plaintiff Baosteel further maintains that Commerce’s exclusion of SAIL based on subsidization was arbitrary and inconsistent with Commerce’s use of the same account in previous investigations. Id. at 43. As Defendant correctly points out, however, Commerce has broad discretion to determine what is best available information for its surrogate value calculations. Defendant’s Memorandum In Opposition To Plaintiffs’ Motions For Judgment Upon The Agency Record (“Defendant’s Memo”) at 22-23 (citing Timken Co., 201 F. Supp. 2d at 1319). In this case, Commerce determined that the 2000-2001 TATA account was best available information because it was (1) contemporaneous to the period of investigation, and (2) more representative of 20 the surrogate industry than the 1999-2000 SAIL account. Decision Memo at Comment 4. Although 19 U.S.C. § 1677b(c) fails to indicate the time periods from which surrogate values are supposed to be taken, this court has repeatedly recognized that Commerce’s practice is to use surrogate prices from a period contemporaneous with the period of investigation.10 Accordingly, Commerce’s decision to rely on the 2000-2001 TATA accounts was not arbitrary, as Plaintiffs claim, but rather based on a long-standing practice to provide an accurate surrogate for nonmarket economy prices. Although Commerce should not sacrifice representativeness for contemporaneity, Commerce did not base its exclusion of the SAIL account solely on the contemporaneity of TATA’s surrogate values.11 Commerce examined contemporaneity in combination with the financial experience of SAIL in 1999-2000, and only then concluded that TATA’s 2000-2001 statements would be more appropriate and accurate. Decision Memo at Comment 4. This decision was based on SAIL’s lack of profitability, a “substantial government sanctioned financial and business restructuing plan,” and SAIL’s receipt of government subsidies. Id. After considering these factors in toto, Commerce concluded that SAIL’s account should be excluded. Commerce was never constrained to rely on multiple producers nor was it constrained to 10 See Shandong Huarong Gen. Corp. v. United States, 159 F. Supp. 2d 714, 728 (CIT 2001); Coalition for the Pres. of Am. Brakedrum and Rotor Aftermarket Mfrs. v. United States, 23 CIT 88, 44 F. Supp. 2d 229, 259 (1999) (“Commerce’s practice is to use publicly available values which are ‘representative of a range of prices within the [period of investigation],’” quoting Union Camp Corp. v. United States, 20 CIT 931, 941 F. Supp. 108, 116 (1996)). 11 One should not be mutually exclusive of the other. If Commerce, and this court, emphasize the importance of contemporaneity, it is to achieve greater representativeness. 21 consider an unprofitable company representative of the Indian surrogate industry as a whole.12 Plaintiff Anshan further disputes Commerce’s inclusion of the TATA 2000-2001 accounts because petitioners submitted the account subsequent to the preliminary determination. Brief of Plaintiffs in Support of Rule 56.2 Motion (“Anshan Brief”) at 29. Plaintiffs, however, had ample opportunity to comment or supplement petitioner’s submission of the 2000-2001 TATA accounts. The Department’s regulation provided them with up to ten days from service “to rebut, clarify or correct” factual information submitted by any other party. 19 C.F.R. § 351.301(c). Plaintiff’s suggestion that the Department should have asked for additional information would essentially shift or remove Plaintiffs’ burden of developing the record through submission of factual information. If Plaintiffs were under the belief that SAIL’s 2000-2001 accounts would have provided Commerce with a more representative and accurate description of the Indian surrogate industry, they should have submitted this information. Because Plaintiffs never submitted this information, Commerce properly exercised its discretion in choosing the best available information on the record to derive its surrogate financial ratios. Accordingly, use of TATA’s 2000-2001 statements to derive surrogate financial ratios 12 See, e.g., Pure Magnesium From the People’s Republic of China: Final Results of Antidumping Duty New Shipper Administrative Review, 63 Fed. Reg. 3085, 3088 (Jan. 21, 1998) (noting that use of a financial report of a single Indian producer to value factory overhead, SG&A, and profit, is more appropriate even though other data is available); Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, Germany, Italy, Japan, Romania, Singapore, Sweden, and the United Kingdom; Final Results of Antidumping Duty Administrative Review, 63 Fed. Reg. 33320, 33349 (June 18, 1998) (holding that even though two financial statements for calculating factor overhead, SG&A, and profit were available, use of just a single financial statement is more appropriate because of contemporaneity with the POR); see also Notice of Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination: Carbon and Certain Alloy Steel Wire Rod From Ukraine, 67 Fed. Reg. 17,367, 17,373 (Apr. 10, 2002). 22 was reasonable. 3. Commerce’s Valuation of Steel Scrap Was Reasonably Valued Based on A Source From The Surrogate Country In the Final Determination, Commerce derived a value for steel scrap of $146.54 per metric ton based on data derived from the Monthly Statistics of the Foreign Trade of India (“MSFT”). Decision Memo at Comment 13. Plaintiffs Anshan and Benxi claim this value is aberrational in comparison to world market prices of steel scrap which, during the POI, ranged from $86.50 to $110. Anshan Brief at 34. To support this contention, Plaintiffs cite to average prices for steel scrap quoted in American Metal Market and Metal Bulletin, two publications based on American and European prices. Id. While Plaintiffs may have only demonstrated that there is a noticeable difference in steel scrap prices among the American, European, and Indian markets, they have not shown that the Indian price is aberrational in comparison to other Indian prices, or to prices from other countries of similar economic development to China. Nor have Plaintiffs demonstrated that American and European prices are a reliable benchmark of comparison to Indian prices.13 The antidumping statute provides that Commerce must value a respondent’s factors of production based on the best available information in a market that is of comparable economic development to the nonmarket economy country. 19 U.S.C. §§ 1677b(c)(1), 1677b(c)(4). Plaintiffs are essentially 13 Plaintiffs might have shown that the global market price for scrap steel was, in fact, the price normally paid in comparable market economies. They failed to do so. 23 citing to prices reported from the United States and the Netherlands, countries that are certainly not at a level of development similar to China. See Decision Memo at Comment 13. As Defendant-Intervenors correctly point out, Commerce based its surrogate value for steel scrap on “a publicly available source from the primary surrogate country that was contemporaneous with the POI and specific to the input at issue.” Bethlehem Memo at 43. Accordingly, Commerce properly exercised its discretion to select best available information from a market that is of comparable economic development to China. 4. Commerce’s Valuation of Iron Ore Was Reasonably Based on an Average of World Prices for Iron Ore Imports into India In the Final Determination, Commerce valued Plaintiff Anshan and Benxi’s iron ore supplied locally based on an Indian surrogate value derived from MSFT data. Final Determination, Decision Memo at Comment 15. Plaintiff Anshan claims Commerce improperly valued its iron ore because it valued low-grade domestic ore at a higher price than high grade imported Indian and Australian ore. Anshan Brief at 37. According to Anshan, Commerce should have treated Plaintiffs’ Australian ore prices as a “cap” on domestic prices “since it is unthinkable that the Plaintiff companies would pay more for low-grade domestic product than for superior imported product.” Id. at 38. To support this contention, Plaintiffs cite to section 351.408 of the Department’s regulations, which states that: [W]here a factor is purchased from a market economy supplier and paid for in a market economy currency, the Secretary normally will use the price paid to the 24 market economy supplier. In those instances where a portion of the factor is purchased from a market economy supplier and the remainder from a nonmarket economy supplier, the Secretary normally will value the factor using the price paid to the market economy supplier. 19 C.F.R. § 351.408(c)(1); Anshan Brief at 38. Plaintiffs, however, have failed to establish that Commerce’s choice of surrogate values for domestic ore is aberrational. As Anshan itself acknowledges, the majority of its iron ore is supplied from within China, whereas a relatively small amount of ore is imported from Australia and India. Anshan Brief at 37. Commerce exercised its discretion in choosing to rely on an average of world prices for iron ore imports into India. As stated by Commerce: The surrogate value for iron ore from MFST is preferable to a single Australian price because the MFST value is based on an average of world prices for iron ore imports into India from the POI. By contrast, the Australian price is based on a single spot price from one country. Therefore, we have continued to use the iron ore value from MFST for the final determination. Decision Memo at Comment 15 (internal citations omitted). Plaintiffs claim Defendant and Defendant-Intervenors fail to address Commerce’s regulation 19 C.F.R. § 351.408, and the requirement of a “cap” on domestic iron ore valuation. Reply Brief In Support of Motion of Plaintiffs Anshan and Benxi For Judgment On The Agency Record Pursuant to Rule 56.2 (“Anshan Reply”) at 10. Plaintiffs, however, already raised the argument in the investigation below, and Commerce provided the following answer: [W]e agree with Petitioners . . . that it is the Department’s standard practice with respect to market economy purchased inputs to ignore small-quantity purchases because the size of the purchases could result in aberrational values. 25 Decision Memo at Comment 15. Contrary to Plaintiffs’ assertions, the language of 19 C.F.R. § 351.408 does not restrict Commerce’s broad discretion to determine best information available when choosing surrogate values. 19 C.F.R. § 351.408 provides that Commerce “normally will value the factor using the price paid to the market economy supplier.” 19 CFR § 351.408 (emphasis added). This language merely suggests a particular methodology, but does not impose upon Commerce the requirement of selecting the market economy price of a respondent’s purchases to the exclusion of more appropriate values. In the present case, Commerce chose the MSFT values because it determined that Plaintiffs’ imports of iron ore were too minimal to provide an adequate surrogate value for its substantial domestic purchases. Accordingly, Commerce’s valuation of Plaintiffs’ iron ore was supported by substantial evidence and in accordance with law. 5. Commerce Reasonably Valued Plaintiffs’ Coking Coal According to Use Rather Than Type Commerce derived a value for Plaintiffs’ coal based on coking coke data from the MSFT. Decision Memo at Comment 12. Plaintiff Anshan claims that Commerce, instead of relying solely on coking coal values, should have used a blend of coking coal and less expensive coal values. Anshan Brief at 42-43. According to Plaintiffs, there are five different types of coal used in their coke-making process, with only [ %] of “rich coal” falling within the higher grade coking coal category. Id. at 44. As Defendant-Intervenors correctly point out, however, Plaintiffs have failed to establish 26 that Commerce’s valuation of coking coal was unreasonable. Bethlehem Brief at 46-47. Commerce noted that the MSFT provides three classifications of coal according to use: The Monthly Statistics of the Foreign Trade of Indian (“MSFT”), the source of the surrogate value data, are clearly labeled in such a manner as to separate values for coal according to use rather than type as asserted by Angang. There are three broad classifications: steam coal (i.e., coal used to generate steam for heating and power generation purposes), coking coal (i.e., coal used to create coke), and other coal (i.e., coal used for some other purpose) . . . Therefore, the Department has determined that coal used in the coking stage will be valued at the coking coal surrogate value . . . In other stages, where Benxi and Angang labeled an input as “coal,” it will be given the surrogate value for “other coal.” Decision Memo at Comment 12. Although Anshan maintains that it uses different grades of coal for coke-making, they have failed to establish that Commerce’s decision to value coal used for coke-making as “coking coal” was unreasonable. The record does contain Plaintiffs’ submissions that their coal is divided into five different types of coal. Anshan Verification Report Exhibit 5-A (AR 381) reprinted in Appendix of Business Proprietary Documents Cited in Brief of Plaintiffs in Support of Rule 56.2 Motion Part A (“Anshan App. Part A”). Plaintiffs, however, have failed to establish that Commerce should have valued only “rich coal” as coking coal, when all of the five categories of coal are used in the coke-making process,14 or that the 14 Moreover, Commerce properly rejected Plaintiffs’ additional submissions as they were submitted more than a week after the 19 C.F.R. § 351.301(b)(1) deadline for submission of unsolicited factual information. See Memorandum from Catherine Bertrand through James doyle to Edward C. Yang re: Verification of Sales and Factors of Production for Angang Group International Trade Co. Ltd., New Iron & Steel Co., Ltd., Angang Group Hong Kong Co., Ltd. (“Angang”) in the Antidumping Duty Investigation of Hot-Rolled Carbon Steel Flat Products from the People’s Republic of China (June 28, 2002), P.R. Doc 198, Appendix to Memorandum of Defendant-Intervenors Bethlehem Steel Corporation, National Steel Corporation, and United States Steel Corporation in Response to Plaintiffs’ Motions for Judgment in the Agency Record (“Bethlehem App.”), Doc. 13, at 2-3. 27 Indian surrogate’s broad categorization of “coking coal” excludes Plaintiffs’ “lesser” grades of coal.15 Commerce’s decision was therefore an exercise of its discretionary judgment to value Plaintiffs’ factors of production based upon the best available information in the primary surrogate country. Accordingly, Commerce’s decision was in accordance with law and supported by substantial evidence. 6. Commerce Correctly Calculated Plaintiff Benxi’s Factors for Silicon Barium Strontium Aluminum During the investigation below, Plaintiff Anshan identified its use of a product combination called Silicon Barium Strontium Aluminum Calcium (“SBSAC”). Plaintiff Benxi, however, identified its use of a product combination called Silicon Barium Strontium Aluminum. Plaintiffs claim these product combinations are the same, but were mistakenly identified by Plaintiff Benxi without the last chemical compound of Calcium. Anshan Brief at 44-45. In the Final Determination, Commerce valued Plaintiff Anshan’s SBSAC based upon the proportion of each element reported to Commerce, whereas for Plaintiff Benxi, Commerce used a simple average of the import values for each constituent element. Decision Memo at Comment 14. In 15 There is also no evidence on the record suggesting that MSFT’s broad classifications of coal are unique or unusual. On the contrary, coking coke is classified within the Harmonized Tariff Schedule of the United States (“HTSUS”) 2704.00.00 under the general description of “[c]oke larger than 100 mm (4 inches) in maximum diameter and at least 50 percent of which is retained on a 100-mm (4-inch) sieve after drop shatter testing pursuant to ASTM D 3038, of a kind used in foundries.” 28 addressing Plaintiff Benxi’s submissions, Commerce stated: For Benxi, we do not have information regarding the chemical content of the input at issue. We disagree with Benxi that we should apply Angang’s reported formula to value Benxi’s input containing strontium because it is unclear whether Benxi and Angang used the same input. Benxi identified the input as silicon barium strontium aluminum, whereas Angang identified the input as silicon barium strontium aluminum calcium . . . Thus, the difference in the names of the inputs implies that Benxi and Angang used different inputs. In addition, there is insufficient information regarding the use of this input to ascertain whether Benxi and Angang used the same input. Id. Plaintiff Anshan argues that Commerce improperly “assumed that each of the four elements in the Benxi name of the product was present equally in the product at Benxi for valuation purposes.” Anshan Brief at 45. According to Anshan, it “was an unnecessary profession of ignorance” for Commerce to “allocate[] the cost [of] 25 percent to each.” Id. As Defendant correctly points out, however, the respondents reported a variety of different alloys containing silicon, including SilicoCalcium and SilicoCalciumBarium. Defendant’s Memo at 42-43. Not only did Plaintiff Benxi fail to correctly identify its product combination, but it also failed to report the proportion of each element in each alloy. Id. Although Commerce is required to verify the information upon which it relied in making its final determination, the burden of creating an adequate record rests with Plaintiff Benxi. See Mannesmannrohren-Werke AG v. United States, 120 F. Supp. 2d 1075, 1085 (citing Chinsung Indus. Co. v. United States, 13 CIT 103, 106, 705 F.Supp. 598, 601 (1989) (“If plaintiffs’ argument were to prevail the result would be to . . . shift the burden of creating an adequate record from respondents to Commerce.”)). When “necessary information is not available on the record . . . the administering authority and 29 the Commission shall . . . use the facts otherwise available in reaching the applicable determination under this title.” 19 U.S.C. § 1677e(a) (1999). Here, Commerce could not assume that Plaintiff Benxi’s product combination was the same as Plaintiff Anshan’s because there were numerous Silicon product combinations on the record and Plaintiff Benxi, unlike Plaintiff Anshan, failed to identify the relative percentage of each element in each alloy. Accordingly, Commerce’s decision to assign an equal percentage to each element reported by Plaintiff Benxi was a reasonable decision based on the facts otherwise available in the record. 7. Commerce’s Refusal to Adjust Plaintiff Baosteel’s Factors of Production for Defective Hot- Rolled Sheets Is Not In Accordance With Law Plaintiff Baosteel claims that Commerce should have adjusted Baosteel’s factors of production to reflect its decision to treat Baosteel’s defective hot-rolled sheets as non-prime merchandise under investigation sold in the home market.16 Baosteel Brief at 46. Plaintiff 16 In its factors of production calculations, Commerce’s practice is to make negative adjustments to normal value in order to account for sale revenue of by-products generated during the production process. See Notice of Final Determination of Sales at Less Than Fair Value: Bulk Aspirin From the People’s Republic of China, 65 Fed. Reg. 33,805, 33,807 (May 25, 2000) and the accompanying Issues and Decision Memorandum for the Final Determination in the Antidumping Investigation of Bulk Aspirin from the People’s Republic of China (May 17, 2000) at Comment 13; see also Sebacic Acid From the People’s Republic of China: Preliminary Results of Antidumping Duty Administrative Review, 65 Fed. Reg. 18,968, 18,971 (April 10, 2000); Certain Cut-to-Length Carbon Steel Plate From Romania: Preliminary Results of Antidumping Duty Administrative Review, 64 Fed. Reg. 48,581, 48,583 (Sept. 7, 1999). In the present case, Commerce rejected Baosteel’s by-product claim for defective hot-rolled sheet and instead treated it as non-prime merchandise under investigation sold in the home market. Memorandum from Carrie Blozy through James Doyle to The File re: Analysis for the Final Determination of 30 Baosteel maintains it had “originally calculated its factors of production by dividing the amount of materials, labor, and energy consumed in the production of merchandise under investigation and other subsidiary products (including defective sheet) by the amount of merchandise under investigation produced during the POI (excluding defective sheet).” Id. at 47. According to Baosteel, “Commerce should have adjusted Baosteel’s reported factors by adding the total amount of non-prime hot-rolled sheet produced during the POI to the total amount of merchandise under investigation produced.” Id. Defendant claims Plaintiff Baosteel “neglected to report the amount of subject merchandise subject to review” and “failed to exhaust its administrative remedies with respect to adjustment of the amount of merchandise under investigation . . . by not raising this issue until its Rule 56.2 brief.” Defendant’s Memo at 46. Contrary to Defendant’s assertions, however, Plaintiff Baosteel did raise the issue in its case brief to Commerce during the investigation. See Brief of Shanghai Baosteel Group Corporation, Baoshan Iron and Steel Co., Ltd, and Baosteel Group International Trade Corporation (July 27, 2001) at 27-29, PR Doc. No. 212; Appendix of Public Documents in Support of Defendant’s Opposition to Plaintiffs’ Motions for Judgment Upon the Agency Record (“Def. App.”) at 3. Plaintiff Baosteel also provided sufficient information in its questionnaire responses for Commerce to correctly identify the subject merchandise and the defective merchandise produced during the period of investigation. See Baosteel’s February 26, 2002 Section D response, PR Doc. No. 125 at Exhibits 2-10. Although Commerce’s decision not to treat the defective hot-rolled sheet as a byproduct Certain Hot-Rolled Carbon Steel Flat Products from the People’s Republic of China: Shanghai Baosteel Group Corporation (“Baosteel Group”), PR Doc. No. 347 at 3. 31 was an exercise of its discretion, it should have reflected this decision in Plaintiff Baosteel’s factors of production calculations by including defective sheets as merchandise under investigation. Accordingly, a remand is necessary so that Commerce may correct this ministerial error. 8. Commerce’s Inclusion of All Baosteel Subsidiaries in its Normal Value Calculations is Supported by Substantial Evidence and Otherwise in Accordance With Law Plaintiff Baosteel claims that Commerce erroneously included the factors of production of producers in the Baosteel Group that did not sell merchandise to the United States during the POI in its normal value calculations. Baosteel Memo at 47. According to Baosteel, some of the producer in the Baosteel Group sold the subject merchandise to the United States during the POI, while others did not. Id. Plaintiff Baosteel claims that, for purposes of normal value calculations, Commerce should “recalculate [the] weighted-average normal values for Baosteel based on the factors of production only for those producers within the Baosteel Group that sold subject merchandise in, or to, the United States during the POI.” Id. at 49. Plaintiff Baosteel, however, misconstrues the scope of the antidumping statute. The term “subject merchandise” refers to “the class or kind of merchandise that is within the scope of the investigation . . .”. 19 U.S.C. § 1677(25)(1999). In the present case, the scope of the investigation encompasses certain hot-rolled carbon steel flat products from the People’s Republic of China. Final Determination, 66 Fed. Reg. 49,633, 49,634. No language within the statute supports Plaintiff Baosteel’s proposition that non-exporting subsidiaries that 32 manufactured the subject merchandise during the POI should be excluded. In fact, Commerce’s questionnaire, consistent with its practice, clearly states: If you produce the subject merchandise at more than one facility, you must report the factor use at each location. You must also report the output of the subject merchandise at the various facilities during the POI.17 U.S. Department of Commerce Antidumping Duty Investigation Questionnaire, Case No. A-570- 865 (Jan. 4, 2001) at D-1, PR Doc. No. 39, Appendix to Memorandum of Defendant-Intervenors Bethlehem Steel Corporation, National Steel Corporation, and United States Steel Corporation in Response to Plaintiffs’ Motions for Judgment on the Agency Record (“Bethlehem App.”) at Doc. 14. Furthermore, as Defendant and Defendant-Intervenors correctly point out, Plaintiffs’ preferred methodology would essentially facilitate manipulation of prices as “foreign producers with multiple facilities would be able to move the production of U.S. sales to their most efficient operations, thereby . . . understating normal value.” Bethlehem Brief at 49; see also Defendant’s Memo at 45. Accordingly, Commerce’s decision to include all of the producers in the Baosteel Group was supported by substantial evidence and in accordance with law. V. Conclusion For the foregoing reasons, the Court remands this case so that Commerce may: (a) 17 US Department of Commerce Antidumping Duty Investigation Questionnaire, Case No. A-570-865 at D-1 (Jan. 4, 2001), P.R. 39 (D-I App. Doc. 14). 33 reconsider its factors of production analysis by either providing an adequate explanation for its deviation from previous practice, or assigning surrogate values to Plaintiffs’ factors of production for its self-produced intermediate inputs; and (b) adjust Plaintiff Baosteel’s factors of production calculations in order to reflect Commerce’s decision not to treat Baosteel’s defective hot-rolled sheets as a byproduct. ________________________ Evan J. Wallach, Judge Dated: July 16, 2003 New York, New York 34

01-03-2023

02-04-2013

https://www.courtlistener.com/api/rest/v3/opinions/2350532/

222 N.J. Super. 122 (1987) 536 A.2d 282 STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. MICHAEL ROACH, DEFENDANT-APPELLANT. Superior Court of New Jersey, Appellate Division. Argued November 10, 1987. Decided December 28, 1987. *124 Before Judges MICHELS, SHEBELL and GAYNOR. Jon Steiger, designated attorney, argued the cause for appellant (Alfred A. Slocum, Public Defender, attorney for appellant; Jon Steiger, on the brief). Robert A. Honecker, Assistant Prosecutor, argued the cause for respondent (John A. Kaye, Monmouth County Prosecutor, attorney for respondent; Mark P. Stalford, Assistant Prosecutor, of counsel and on the brief). The opinion of the court was delivered by GAYNOR, J.A.D. An indictment returned by a Monmouth County Grand Jury charged defendant with two counts of aggravated sexual assault (N.J.S.A. 2C:14-2.a), sexual assault (N.J.S.A. 2C:14-2.b), aggravated criminal sexual contact (N.J.S.A. 2C:14-2.a), endangering the welfare of a child (N.J.S.A. 2C:24-4.a) and two counts of distributing a controlled dangerous substance (N.J.S.A. 24:21-19.a(1) and 24:21-26.b). One distribution count was dismissed on the State's pretrial motion. A mistrial was declared by the trial judge upon being informed by the jury, after two hours of deliberation, that they were "hopelessly deadlocked." Defendant's subsequent motion to dismiss the indictment *125 on grounds of double jeopardy was denied and the case proceeded to a second trial. Following this second trial, defendant was convicted of distribution of a controlled dangerous substance but the jury was deadlocked as to the remaining counts alleging unlawful sexual conduct. A mistrial as to those counts was declared.[1] Defendant was thereupon sentenced to a seven-year prison term and ordered to pay a $25 VCCB penalty. On this appeal, defendant advances the following arguments in support of his contentions that his conviction should be reversed and the distribution count of the indictment should be dismissed or, alternatively, his sentence should be modified or the matter remanded for resentencing with directions to afford defendant the presumption of non-incarceration: I. THE DEFENDANT'S MOTION FOR A DISMISSAL OF COUNT SIX OF THE INDICTMENT AT THE CONCLUSION OF THE STATE'S PROOF WAS ERRONEOUSLY DENIED. II. THE DEFENDANT'S FIRST TRIAL WAS IMPROPERLY TERMINATED AND THE SECOND TRIAL WAS THEREFORE A DEPRIVATION OF THE DEFENDANT'S FIFTH AMENDMENT RIGHT NOT TO BE SUBJECTED TO MULTIPLE PROSECUTIONS. III. THE SENTENCE IMPOSED BELOW WAS MANIFESTLY UNFAIR: IT WAS AN ABUSE OF DISCRETION TO IMPOSE A CUSTODIAL TERM. The State's evidence in the first trial pertaining to the alleged unlawful distribution of a controlled dangerous substance, disclosed that defendant, while a counsellor at the Monmouth County JINS[2] Shelter, had participated in the use of marijuana and cocaine with one J.B., a juvenile resident of the shelter. J.B. testified that he and defendant had smoked a marijuana cigarette together by passing it back and forth between them, but that he, J.B., had supplied the marijuana. In a written statement given to the prosecutor's investigator, *126 J.B. had stated that defendant got him high a couple of times on marijuana and that defendant uses cocaine but had never supplied any to him. The investigator also testified that during questioning at the prosecutor's office defendant admitted to having brought marijuana into the shelter and sharing it with J.B. Defendant's motion at the conclusion of the State's case for a dismissal of this charge was denied. In denying defendant's motion, the trial judge concluded that the undisputed evidence as to the passing back and forth of a marijuana cigarette between defendant and J.B. could constitute a transfer within the meaning of the statute prohibiting the distribution of marijuana. He reasoned: Let's take this in two steps. First of all, let it be said that distribute as that statute — as that word is defined means, to deliver a controlled dangerous substance; and deliver has a definition which means, an actual or attempted transfer from one person to another of a controlled dangerous substance. And there is no question in this Court's mind that there need not be a sale. There need not be a money transaction. There may not be a giving over and forever surrendering to have a delivery under that statute. Delivery means attempted to transfer or the actual transfer from one person to another of C.D.S. It certainly in this Court's opinion covers the situation where a marijuana cigarette is passed from person A to person B to person D for instance. D is the defendant and then back to A, D the defendant transfers it back to A that is a delivery of a controlled dangerous substance and it matters not in this Court's opinion that that item was in the process of being smoked all around in a peace pipe type of setting. That is a transfer and that is a delivery. As I understand the definition that constitutes a distribution of controlled dangerous substance. Defendant argues that this is a strained and contrived interpretation of the concept of distribution as used in the statute. Assertedly, it was not within the contemplation of the Legislature "to permit the conviction of individuals for the distribution of marijuana when the circumstances are such that individuals merely passed a small quantity of marijuana back and forth between themselves in the course of ingesting it." We disagree. The Legislature decreed that "it shall be unlawful for any person knowingly or intentionally [t]o ... distribute ... a *127 controlled dangerous substance," N.J.S.A. 24:21-19.a(1), and permited the imposition of an enhanced term of imprisonment upon "[a]ny person who is at least 18 years of age who violates § 19a(1) by distributing any other controlled dangerous substance ... to a person 17 years of age or younger who is at least three years his junior...." N.J.S.A. 24:21-26.b. The term "[d]istribute" is defined in N.J.S.A. 24:21-2 as meaning "to deliver other than by administering or dispensing a controlled dangerous substance," and "`[d]istributor' means a person who distributes." Delivery is "the actual, constructive, or attempted transfer from one person to another of a controlled dangerous substance, whether or not there is an agency relationship." Id. We discern nothing in this statutory language to suggest that the Legislature intended that distribution of a controlled dangerous substance not include the transfer of marijuana as two individuals passed a "joint" back and forth in sharing the smoking of it. "Distribute" under the Act clearly and simply means delivery, that is, the "transfer from one person to another of a controlled dangerous substance...." N.J.S.A. 24:21-2. State v. Heitzman, 209 N.J. Super. 617, 621 (App.Div. 1986), aff'd, 107 N.J. 603 (1987). As the clear and unambiguous language of the statute admits of no other interpretation further exploration to discern legislative intent is unnecessary. State v. Valentin, 208 N.J. Super. 536, 539 (App. Div. 1986), aff'd, 105 N.J. 14 (1987). As we observed in State v. Sainz, 210 N.J. Super. 17, 25 (App.Div. 1986), aff'd, 107 N.J. 283 (1987), distribution under the Act is present "whether the intent is merely to share cocaine casually with a friend or to control a widespread network of illicit distribution and sale." Ibid. In Heitzman, we also noted that distribution does not require a commercial sale but can take place in the sharing of marijuana with social guests. 209 N.J. Super. at 620-621. We perceive no valid distinction between the passing of an unlighted or lighted marijuana cigarette *128 from one person to another as would permit the delivery of the unlighted material to be considered distribution of a controlled dangerous substance but not the transfer of a lighted "joint." Moreover, here, even if the substance were furnished by J.B., defendant's position at the JINS Shelter required that upon obtaining possession of the marijuana cigarette it be confiscated. By passing it back to the juvenile and thus permitting further unlawful use of the substance, defendant knowingly and intentionally transferred the marijuana to J.B. Clearly, defendant thereby engaged in distribution of the marijuana within the intendment of the statute. Although evidence of such conduct alone was sufficient to warrant the denial of defendant's motion for acquittal, the additional testimony pertaining to defendant's oral admission and the written statement originally given by J.B. to the investigator provided further support for the trial judge's conclusion that a jury issue had been presented. Viewing the State's evidence in its entirety and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences reasonably to be drawn therefrom, it was properly determined that a reasonable jury could find defendant guilty of distribution of a controlled dangerous substance to J.B. beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 458-459 (1967). We also discern no error in the denial of defendant's motion to dismiss the indictment because of the claimed violation of his Fifth Amendment right arising by reason of the retrial. As the first trial assertedly had been improperly terminated, the second trial thus would unlawfully subject defendant to multiple prosecutions for the same offenses. Our review of the record satisfies us that defendant's first trial was not improperly terminated. The mistrial due to the deadlocked jury was declared by the trial judge only after being repeatedly *129 informed by the jury that it was unable to reach a unanimous verdict. After having deliberated some two and one-half hours, the jury sent a note to the judge stating it was deadlocked. With consent of counsel, the trial judge responded by asking the jury if it would be helpful to continue deliberations on the following day or whether it was hopelessly deadlocked. By note, the jury again indicated it was hopelessly deadlocked. The jury was then brought in and the judge inquired of the foreman whether the note stating that it was hopelessly deadlocked was a consensus. The foreman replied that it was. The mistrial was then declared. The Code permits the termination of a trial because of the "failure of the jury to agree upon a verdict after a reasonable time for deliberation has been allowed." N.J.S.A. 2C:1-9.d(2). The facts of each case are determinative as to whether the time allowed for deliberation is reasonable, United States ex rel. Russo v. Superior Court of N.J., 483 F.2d 7, 13 (3 Cir.1973), cert. den., 414 U.S. 1023, 94 S.Ct. 447, 38 L.Ed.2d 315 (1973), and the determination as to what factual situations merit a mistrial and allow a defendant to be reprosecuted is a matter within the broad discretionary authority of the trial judge. Id.; State v. Reddick, 76 N.J. Super. 347, 351 (App.Div. 1962). A trial judge's decision in this regard will be upset only for an abuse of that discretion. State v. Thomas, 76 N.J. 344, 362 (1978). Defendant argues, although without any factual foundation, that the approximate two and one-half hours of jury consideration could hardly be considered a reasonable time for its deliberations. This argument lacks persuasiveness in view of the opportunity afforded the jury to continue deliberations and its repeated response of a hopeless deadlock. Under such circumstances, the trial judge cannot be faulted for concluding that a mistrial was appropriate due to the jury's inability to agree *130 upon a verdict. See Reddick, 76 N.J. Super. 347 (App.Div. 1962). Moreover, defense counsel made no objection at the time to the trial court's action. Defendant's reliance upon United States ex rel. Russo and State v. Esposito, 148 N.J. Super. 102 (App. Div. 1977), certif. den., 74 N.J. 260 (1977), is misplaced as the situations presented in those cases render them factually inapposit. Finally, we find no merit in defendant's contention that the trial court abused its discretion in imposing a custodial sentence. Defendant's assertion that the presumption against incarceration afforded to first offenders by N.J.S.A. 2C:44-1.e was applicable lacks substance. As his conviction subjected defendant to an enhanced maximum sentence of ten years — a term in consort with a second degree offense — it suggested "at least presumptively, that the nature of that Title 24 offense is incompatible with a noncustodial sentence." State v. Sobel, 183 N.J. Super. 473, 480 (App.Div. 1982). However, while the trial judge followed the sentencing guidelines, we are constrained to conclude that the application of those guidelines to the circumstances of this case renders the imposition of a seven-year prison term so unreasonable as to be shocking to the judicial conscience. State v. Roth, 95 N.J. 334, 364-366 (1984). In our view, a custodial sentence of four years is sufficiently severe to reflect the gravity of the offense committed by defendant and to deter him and others from participating in such antisocial activity. In the exercise of our original jurisdiction, we therefore modify defendant's sentence by committing him to the custody of the Commissioner of Corrections for a term of four years. We affirm the conviction of defendant but modify his sentence as herein provided. The matter is remanded to the Superior Court, Law Division, Monmouth County, for the necessary correction of the judgment of conviction. NOTES [1] Defendant's motion to dismiss the remaining counts of the indictment was denied and the case was placed on the inactive trial list pending this appeal. [2] Juveniles In Need of Supervision.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2350554/

113 Pa. Commonwealth Ct. 105 (1988) 536 A.2d 503 Chester County Tax Claim Bureau and Main Line Investors Realty Corp., Appellants v. Ronald B. Griffith, Appellee. No. 450 C.D. 1987. Commonwealth Court of Pennsylvania. Argued December 14, 1987. January 27, 1988. Argued December 14, 1987, before Judges CRAIG and BARRY, and Senior Judge NARICK, sitting as a panel of three. *106 Thomas A. Dreyer, for appellants. Alan J. Jarvis, with him, Susan P. Windle, for appellee. OPINION BY SENIOR JUDGE NARICK, January 27, 1988: The Chester County Tax Claim Bureau and Main Line Investors Realty Corp. (hereinafter collectively referred to as Appellants) appeal from a decision and order of the Court of Common Pleas of Chester County which invalidated a tax sale and directed the Chester County Tax Claim Bureau to conduct another sale. We affirm. The facts may be summarized as follows. Ronald B. Griffith (Griffith) owned real property located at R. D. No. 2, Telegraph Road, Honey Brook, West Caln Township, Chester County, Pennsylvania consisting of 1.9 acres with improvements. This parcel of property is known as Lot No. 49 according to the Chester County Tax Claim Bureau records. In 1984, Griffith failed to pay the county, township and school district taxes on his property. On October 6, 1986, the property was subjected to a tax sale in order to collect the delinquent taxes. Appellant Main Line Investors Realty Corporation purchased the property at the sale. On December 10, 1986, Griffith filed a petition to set aside the tax sale *107 complaining that the property had not been properly posted as required by law. The trial court found as fact that the posted notice with respect to Lot 49 was defective in that the notice was not placed on the premises as required by Section 602(e)(3) of the Real Estate Tax Sale Law (Law), Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. §5860.602(e)(3). Accordingly, the trial court invalidated the October 6, 1986 tax sale and directed that another sale be conducted as required by law. Appellants appealed the trial court's order to this Court. We must determine whether the trial court properly invalidated the tax sale when although the property owner received notice of the tax sale, there is evidence that the property was not posted properly as required by law, and this is asserted as a defense by the property owner.[1] In tax sale cases, our scope of review is limited to determining whether the trial court abused its discretion, rendered a decision with lack of supporting evidence or clearly erred as a matter of law. Molchan Appeal, 94 Pa. Commonwealth Ct. 423, 503 A.2d 1051 (1986). Section 602 of the Law sets forth three types of notice which are required for a valid tax sale: publication, certified mail and posting. Griffith contended in the trial court that his property was not posted in accordance with Section 602(e)(3) of the Law which provides: "Each property scheduled for sale shall be posted at least ten (10) days prior to the sale". It is long settled that a valid tax sale requires strict compliance with the notice provisions of Section 602 of the Act; and all three types of notice are required for a tax sale to be valid. If any is defective the sale is void. Trussell Appeal, 102 Pa. Commonwealth Ct. 32, 517 *108 A.2d 221 (1986); Area Homes, Inc. v. Harbucks, Inc. and The Equitable Trust Co., 75 Pa. Commonwealth Ct. 97, 461 A.2d 357 (1983); Daubenspeck Appeal, 48 Pa. Commonwealth Ct. 612, 411 A.2d 837 (1980); also see Stephens Appeal, 53 Pa. Commonwealth Ct. 423, 419 A.2d 206 (1980); Povlow Appeal, 48 Pa. Commonwealth Ct. 435, 410 A.2d 376 (1980). Regarding compliance with the Section 602 notice provisions, this Court stated in Clawson Appeal, 39 Pa. Commonwealth Ct. 492, 498, 395 A.2d 703, 706 (1979): The statutes, however, impose duties, not on owners, but on the agencies responsible for sales; and such of those duties as relate to the giving of notice to owners of impending sales of their properties must be strictly complied with. Hence, the inquiry is not to be focused on the neglect of the owner, which is often present in some degree, but on whether the activities of the Bureau comply with the requirements of the statute. (Citations omitted.) With respect to the requirement for posting, this Court opined in Trussell Appeal that: "One of the historical purposes of posting has been to notify the public at large of the existence of the sale, such that any interested parties would have an opportunity to participate in the auction process . . .", id. at 35, 517 A.2d at 222. The local agency has the initial burden of showing that the notice provisions of Section 602 of the Act have been complied with and a tax sale will not be invalidated when that burden is met. See Area Homes, Inc. However, when there is evidence that this burden has not been met a tax sale may be invalidated. Id. In the case at hand the testimony presented by Appellants revealed that a county sheriff and his deputy went to the property in order to post it. According to the sheriff, he directed the deputy (the deputy did not *109 testify) to post the property and that the property was properly posted by the deputy. However, Griffith presented two witnesses, Michael Lindenlauf and Robin Doll, in support of his position that the property was not properly posted. Lindenlauf was the owner of property located near Griffith's property. Lindenlauf testified that on a certain day in early September he was showing certain property that he owned to Robin Doll and her husband, and that while walking with Mr. Doll on another nearby lot, this lot known as Lot 51 according to Chester County Tax Claim Bureau records, a tax sale notice was found posted to a tree. Lindenlauf testified that he realized this was for Griffith's property and that he directed his brother to deliver this notice to Griffith. Robin Doll testified that on a certain day in early September she accompanied her husband in order to examine certain property owned by Lindenlauf. Mrs. Doll testified that while Lindenlauf and her husband were walking in the woods on a nearby lot (Lot 51), they found a tax sale notice for the Griffith property posted to a tree. Based upon the evidence before it, the trial court concluded that the property was not properly posted. Thus, because the testimony of Robin Doll and Michael Lindenlauf supports the trial court's decision, we cannot conclude that the trial court abused its discretion. Therefore, for the reasons set forth herein, we will affirm the order of the Court of Common Pleas of Chester County. ORDER AND NOW, this 27th day of January, 1988, the order of the Court of Common Pleas of Chester County in the above-captioned matter is hereby affirmed. NOTES [1] There is no dispute that Griffith was timely served with notice of the sale.

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222 N.J. Super. 281 (1988) 536 A.2d 787 INDUSTRIAL DEVELOPMENT ASSOCIATES A/K/A INDUSTRIAL DEVELOPMENT ASSOCIATION, PLAINTIFF-APPELLANT, v. COMMERCIAL UNION SURPLUS LINES INSURANCE COMPANY, EXECUTIVE EXCESS LTD., P.P.G. INDUSTRIES, INC., ANTONIO SUAREZ D/B/A ICP AND PUGLIESE SWIMMING POOLS CORPORATION, DEFENDANTS-RESPONDENTS, AND F.T.P., INC., DEFENDANT-RESPONDENT CROSS-APPELLANT. Superior Court of New Jersey, Appellate Division. Argued September 29, 1987. Reargued December 15, 1987. Decided January 21, 1988. *284 Before Judges PRESSLER, MUIR, Jr. and SKILLMAN. Michael F. Chazkel argued the cause for appellant. John S. Fitzpatrick argued the cause for respondent Executive Excess, Ltd. (Haggerty & Donohue, attorneys; John S. Fitzpatrick, on the brief). Robert H. Tell argued the cause for respondent-cross-appellant F.T.P., Inc. (Lynch, Martin & Philibosian, attorneys; Robert H. Tell, of counsel and on the brief). Brian C. Matthews argued the cause for respondent P.P.G. Industries, Inc. (Tompkins, McGuire & Wachenfeld, attorneys; Brian C. Matthews, of counsel and on the brief). Susan M. Danielski argued the cause for respondent Commercial Union Surplus Lines Ins. Co. (Cozen and O'Connor, attorneys; Gerard Harney and Susan M. Danielski, on the brief). The opinion of the court was delivered by SKILLMAN, J.A.D. This insurance litigation arises out of a fire which damaged several buildings in an industrial complex in Newark. Plaintiff Industrial Development Associates (Industrial) is a limited partnership formed in 1979 to acquire the industrial complex, which consisted of 22 buildings located on approximately 7 1/2 acres of land. Industrial's general partners are Anthony Pugliese, Jr. and his son, Anthony Pugliese, III. Anthony Pugliese, III (hereafter referred to as Pugliese) was responsible for supervising extensive renovations of the buildings in preparation for leasing them to commercial tenants. Pugliese, acting as agent for Industrial, hired Pugliese Swimming Pools Corp., also owned by the Puglieses, as the general contractor for the renovations, which included demolition, repairs of the plumbing, heating, and sprinkler systems, and a variety of other rehabilitative work. *285 In July of 1980, when there were already tenants occupying some of the buildings, Pugliese attempted to obtain insurance on six of the buildings through Anthony Suarez, an insurance broker with whom he had previously done business in connection with other renovation projects. Unable to secure coverage in the conventional marketplace, Suarez contacted Thomas Guthrie of F.T.P., Inc. (FTP), also an insurance broker, to obtain his assistance in securing coverage from a surplus lines insurer. Around August or September of 1980, Suarez visited the premises for approximately one-half hour, accompanied by Guthrie. Pugliese alleges that during this inspection he informed Guthrie, who is now deceased, that the sprinkler system in the buildings was disconnected. Guthrie, in the part of his deposition read to the jury, denied being told this. Guthrie subsequently contacted Michael Himowitz of defendant Executive Excess (Executive), another insurance broker, who in turn communicated with Thaxter H. Polk of defendant Commercial Union (Commercial), a surplus lines insurer. According to Himowitz, Guthrie informed him that the sprinkler system was operational and he passed on this information to Commercial. Polk then gave Himowitz the order to bind the coverage. A binder dated August 28, 1980 was issued by FTP and signed by its President, Frank Powell. This binder identified Suarez's company as the broker for Industrial and Commercial as the insurer. Powell apparently received an oral authorization from Executive to issue this binder. Himowitz sent Guthrie a confirmation of insurance, dated October 9, 1980, which indicated that coverage had become effective on September 5, 1980. A policy of insurance was subsequently issued by Commercial. On March 18, 1981, a serious fire erupted during renovations when an acetylene torch being used to remove piping came in contact with chemical residue in the pipes. Industrial filed a claim with Commercial for the losses it incurred in the fire. Commercial rejected the claim on the grounds that the inoperability *286 of the sprinkler system on the date of the fire constituted a violation by Industrial of the Automatic Sprinkler clause of the Protective Safeguards Endorsement of the policy. This endorsement warranted that the premises were protected by a sprinkler system and imposed an obligation upon Industrial to immediately notify Commercial of any impairment of the system. On March 21, 1984, Industrial filed this lawsuit against Suarez,[1] FTP, Executive and Commercial based on the rejection of its insurance claim. Industrial also named the renovations contractor, Pugliese Swimming Pools, as a defendant, alleging that its negligence in performing the renovations had caused the fire. Additionally, a former owner of the property, PPG Industries, Inc. (PPG), was joined as a defendant on the theory that its negligence in leaving chemical paint residues in the pipes when it sold the property had been a contributing cause of the fire. On January 10, 1986, Commercial and Executive successfully moved for summary judgment on the grounds that the undisputed facts showed that Industrial had breached the Protective Safeguards Endorsement of the policy by failing to have an operational sprinkler system as of the date of the fire. The trial court acknowledged the existence of a factual dispute as to whether Guthrie had been informed that the sprinkler system was inoperative. However, the court concluded that Commercial and Executive could not be held responsible for Guthrie's failure to notify them that the premises did not have sprinklers, because it had been established as a matter of law that Guthrie's employer, FTP, was not acting as an agent for Commercial and Executive. The case subsequently proceeded to trial against FTP, PPG and Pugliese Swimming Pools. Industrial settled with Pugliese *287 Swimming Pools during trial. At the close of Industrial's case, the trial court granted motions by FTP and PPG for dismissal. Industrial appeals and FTP cross-appeals from the summary judgments in favor of Commercial and Executive. We reverse the dismissal at the close of Industrial's case entered in favor of FTP and the summary judgments in favor of Commercial and Executive. We affirm the dismissal of PPG. I Commercial and Executive were granted summary judgment based on the trial court's conclusion that Industrial had breached its obligations under the Automatic Sprinkler clause of Protective Safeguards Endorsement of the policy, thereby suspending coverage as of the date of the fire. The relevant portion of this endorsement provides as follows: In consideration of the premium at which this policy is written, based on the protection of the premises by the sprinkler system and in connection therewith an approved central sprinkler supervisory service, it is a condition of this policy that the insured shall exercise due diligence in maintaining in complete working order all equipment and services pertaining to the operation of the approved central sprinkler supervisory service which are under the control of the insured. The insured shall give immediate notice to this Company of any impairment in or suspension of the sprinkler system or services (within the knowledge of the insured). In arguing that Industrial breached this provision, Commercial and Executive rely on the undisputed fact that the sprinkler system had been disconnected for a substantial period of time prior to the fire. Industrial's position is that Commercial and Executive are estopped from relying upon the Protective Safeguards Endorsement because their agent, Guthrie, was aware when he bound the policy that the sprinkler system had been disconnected in connection with renovations on the buildings. See Harr v. Allstate Ins. Co., 54 N.J. 287 (1969). The response of Commercial and Executive is that Guthrie and his employer, FTP, were not their agents but rather Industrial's agents. The issue on which the grant of summary judgment in favor of Commercial and Executive turns is whether FTP, an intermediary *288 in the placement of the policy insuring Industrial's premises, was acting as the agent of the insured, Industrial, or the insurer, Commercial. According to a leading commentator in the field of insurance, "... it is clear that this is a question of fact ..." and "[h]ence it is to be determined from all the facts of each case, and not from the mere words used, whether the agent represented the insurer or insured, or whether he acted for both." W.R. Vance, Handbook on the Law of Insurance (3 ed. 1976), at 435; see also 3 Couch, Insurance (2 ed. 1984) § 26.29 at 562. The decisions in this state have also recognized that the status of an insurance agent as agent of the insured or of the insurer "... depends upon the intention of the parties and is a question of fact to be determined by the jury." Higgins v. Fidelity-Phoenix Fire Ins. Co. of N.Y., 107 N.J.L. 175, 177 (E. & A. 1930); see also Lilly v. Allstate Ins. Co., 218 N.J. Super. 313, 322 (App.Div. 1987). The relationship among the Industrial, Commercial and the three intermediaries involved in the placement of the policy on Industrial's premises was governed by the New Jersey Surplus Lines Law, N.J.S.A. 17:22-6.40, et seq. The purpose of this law is to regulate the placement of insurance with companies which are not authorized to directly transact business with prospective insurers in New Jersey, commonly called surplus lines insurers. See Railroad Roofing, etc., Co. v. Financial Fire & Casualty Co., 85 N.J. 384, 389 (1981). The primary means adopted by the Legislature for regulating this business is to require surplus lines insurers to conduct their business through surplus lines agents who are licensed by the State. N.J.S.A. 17:22-6.42(c). "New Jersey's requirement that surplus lines insurers receive all business through surplus lines agents represents a compromise affording New Jersey residents the in-state availability of this coverage when needed, while at the same time protecting state residents from direct solicitation by these relatively unregulated insurers." Evanston Ins. Co., Inc. v. Merin, 598 F. Supp. 1290, 1298 (D.N.J. 1984). Thus, Commercial, as a surplus lines insurer, could only conduct business in *289 New Jersey through a licensed surplus lines agent acting on its behalf. Suarez was not licensed as a surplus lines agent, and Industrial admits that he acted as its agent in obtaining the policy with Commercial. However, both Executive and FTP were licensed as surplus lines agents in New Jersey. Industrial's position is that Executive dealt with Industrial's agent, Suarez, through FTP. Hence, Industrial argues that FTP was acting as Executive's agent and as Commercial's subagent in extending coverage on Industrial's premises. Commercial's position is that it dealt only with Executive in connection with the Industrial policy. Hence, it argues that if it had any agent at all in writing this coverage, it was solely Executive. We are satisfied that extending all reasonable inferences in favor of Industrial, there exist factual issues as to whether FTP was acting as an agent for Commercial and Executive in the placement of coverage on Industrial's property. There is evidence that Guthrie conveyed the impression to Industrial that he was acting as Commercial's agent. Industrial's broker, Suarez, testified in depositions that Guthrie was "representing the insurance company," which it could be inferred was a reference to Commercial. Pugliese also testified that his impression, derived from either Suarez or Guthrie, was that Guthrie was representing the insurer. Moreover, there was evidence from which it could be inferred that Commercial and Executive expressly or impliedly authorized FTP to act as their agent in connection with this transaction. Under N.J.S.A. 17:22-6.50, the surplus lines agent has the responsibility to "... promptly issue and deliver to the insured evidence of the insurance...." FTP was the agent which issued a binder to Industrial on August 28, 1980, shortly after Guthrie visited the premises and Commercial decided to write the coverage. This binder listed Associated Financial Services (Suarez's company) as Industrial's broker and included FTP's identification number as a surplus lines agent. In our opinion, this document would support an inference that FTP *290 was acting as the agent for Commercial and Executive in providing coverage to Industrial.[2] In fact, even in the absence of a statutory mandate such as N.J.S.A. 17:22-6.50 requiring the insurer's agent to issue a certificate of insurance, we have concluded that the issuance of a certificate of insurance is evidence that a party is the insurer's agent or, in the alternative, that the insurer is bound by that party's acts under the doctrine of apparent agency or agency by estoppel. Mattia v. Northern Ins. Co. of New York, 35 N.J. Super. 503, 512-513 (App.Div. 1955); see also Cheshansky v. Merchants' Fire Ins. Co., 102 N.J.L. 414, 417 (E. & A. 1926). Accordingly, we conclude that the summary judgments in favor of Commercial and Executive must be reversed.[3] II Industrial's theory of liability against FTP at trial was that FTP had breached its duty of care as the broker for *291 Industrial by failing to procure a policy which would provide coverage even though the sprinkler system was disconnected.[4] FTP did not dispute the existence of evidence that its employee, Guthrie, had been informed that the sprinkler system was disconnected, and that this evidence would present a jury question as to whether FTP breached its duty to exercise reasonable skill, care and diligence in procuring the proper coverage for its insured. See Bates v. Gambino, 72 N.J. 219, 224-225 (1977). However, FTP asserted that even if the policy had been written without the Protective Safeguards Endorsement requiring maintenance of a sprinkler system, Industrial could not recover because it had breached the "increase of hazards" provision of the policy by permitting the use of the acetylene torch which caused the fire. Therefore, FTP argued that it could not be held liable, because its negligence, if any, was not the proximate cause of Industrial's lack of coverage for the fire. The "increase of hazards" clause provides: [T]his company shall not be liable for loss occurring (a) while the hazard is increased by any means within the control or knowledge of the insured; This standard clause of a basic fire insurance policy is mandated by statute, N.J.S.A. 17:36-5.20. Such increase of hazards clauses have been the subject of interpretation in numerous decisions in this state and in other jurisdictions. See, e.g., Goldman v. Piedmont Fire Ins. Co., 198 F.2d 712 (3rd Cir.1952); Asbell v. Pearl Assurance Co., 59 N.J. Super. 324 (App. Div. 1960); Orient Ins. Co. v. Cox, 218 Ark. 804, 238 S.W.2d 757 (1951); see generally 8 Couch, Insurance (2 ed. 1984) § 37A:273 et seq. "An increase in hazard takes place when a *292 new use is made of the insured property, or when its physical condition is changed from that which existed when the policy was written, and the new use or changed condition increases the risk assumed by the insurer." Couch, supra, § 37A:291 at 329. An increase of hazard will generally not be found if there has been merely "... a casual change of a temporary character." Id. at 330. Thus, the negligence of the insured does not constitute an increase in the hazard, unless that negligence results in a change of some duration in the structure, use or occupancy of the premises. Orient Ins. Co. v. Cox, supra, 238 S.W.2d at 761-762; Couch, supra, § 37A:280 at 316. Whether there has been an increase of hazard suspending coverage under a policy is a question of fact which should be determined by a jury unless the evidence is so conclusive that reasonable minds could not differ. Orient Ins. Co. v. Cox, supra, 238 S.W.2d at 762; Couch, supra, § 37A:302 at 346. Moreover, the insurer bears the burden of proving that the insured has increased the hazard. Couch, supra, at § 37A:305 at 352. At the close of Industrial's case the trial court concluded that the undisputed facts established Industrial's breach of the increase of hazards clause and therefore it dismissed Industrial's claim against FTP. The trial court made the following findings of fact and conclusions of law in support of this dismissal: There is absolutely no question in this case that the acetylene torch, the use of the acetylene torch, was the cause of the fire, and there's absolutely no question in this case that the acetylene torch was used in a negligent manner. * * * * * * * * Factually, of course, it is beyond question that the use of the acetylene torch increased the hazard. It is beyond question that the owner, in the person of Pugliese, III, who was the operative head of both the owner and the contractor, knew that increased the hazard. The only question is whether this transitory passage of an increased hazard comes within the terms of the policy provisions and where the burden of proof on this lies. Insofar as burden of proof is concerned, I think the problem is without substance.... Where the positions of both plaintiff and the defendant have agreed that the acetylene torch was used in violation of all applicable Codes, all *293 applicable practices, there is absolutely no dispute. Neither side has contended that there was not a negligent practice in the manner in which the torch was used. So to say that this has to be passed upon by the jury is, I think to take a position which is completely untenable. I don't think a jury could possibly find that it was used not negligently. * * * * * * * * Now, the only question is was that risk the risk which existed at the time the policy was issued in September of 1980? The only evidence we have on that is that Guthrie inspected the building at the time. It was a half-hour inspection. He knew there were alterations in progress. There is nothing at all to indicate — at that time to indicate that an acetylene torch was being used in that building or in Buildings 4 and 5 where the fire occurred, and there is absolutely nothing to indicate an acetylene torch was used in buildings 4 and 5 prior to December 1980. Now, Mr. Chazkel argues that acetylene torches were used in other buildings on the tract. There were approximately 21 or 22 buildings in the tract but, of course, that was not apparent to Guthrie at the time because the alterations had been completed or, so far as we know, virtually completed in the other buildings, and there is not any indication at all that Guthrie knew of the possibility of the use of an acetylene torch without appropriate safeguards at that time. Under the circumstances, I think the appropriate interpretation of the policy is that contended for by counsel for FTP and, therefore, I grant the motion. The trial court erred in a number of respects in concluding that FTP had conclusively demonstrated through the evidence presented during Industrial's case that Industrial had violated the increase of hazards clause of its policy. First of all, a plaintiff is not required during its case in chief to anticipate an affirmative defense and to present responsive evidence. Wyatt by Caldwell v. Wyatt, 217 N.J. Super. 580, 590 (App.Div. 1987). Consequently, in the absence of a stipulation that Industrial had no additional evidence to present relevant to the defense of a breach of the increase of hazards clause, the trial court should not have granted the motion to dismiss at the close of Industrial's case. See Advance Piece Dye Works v. Traveler's Indemn. Co., 64 N.J. Super. 405, 414-415 (App.Div. 1960). Moreover, even if the evidence presented during the Industrial's case were the only evidence, the issue of Industrial's *294 breach of the increase of hazards clause should not have been taken from the jury. It is true that Pugliese testified during a part of his deposition read to the jury that the welder, Hines, had begun working at the premises only 3 or 4 months prior to the occurrence of the fire on March 18, 1981, which would have been subsequent to the inception of the policy. However, this part of Pugliese's trial testimony was vague. Q. [FTP's counsel]: I think you told us in the depositions that prior to the date of the fire, he had actually been in the employ of Pugliese Swimming Pools about 3 or 4 months? A. [Pugliese]: Something like that. On the other hand, Thomas Caruso, a supervisor of the project, testified that Hines began working shortly after he himself had started work in the fall of 1979. In addition, Pugliese testified that acetylene torches were used as soon as renovation work inside the interiors of the buildings was begun, and Caruso testified that interior renovation work was being done on the buildings for an 8 to 10 month period preceding the date of the fire. Caruso also testified that he and two other persons besides Hines did some work with an acetylene torch during the renovation project. The jury could have concluded from this testimony that some pipecutting involving the use of an acetylene torch was occurring at the time of the inception of the policy. Finally, insofar as the trial court's dismissal of Industrial's claim against FTP rests on findings of Industrial's negligence, it misconstrued the increase of hazards clause of the policy. An insured does not violate such a provision simply by virtue of its own negligence or that of its agent. Rather, it is only a change in the condition or use of the premises which will defeat an insured's claim under an increase of hazards clause of a policy. If there is an increase of the hazard, there is no need to show that it was caused by the insured's negligence, only that it was "within the control or knowledge of the insured." Conversely, if the insured is negligent but the essential condition and use of the premises remains the same on the date of a *295 loss as at the inception of the policy, there is no violation of an increase of hazards clause. Orient Ins. Co. v. Cox, supra, 238 S.W.2d at 761-762. Therefore, we conclude that the judgment in favor of FTP must be reversed. III Industrial alleged that PPG had been negligent in not emptying its pipes of all chemical residue before transferring title to the premises in 1971, approximately 10 years before the fire. The trial court concluded that this claim was governed by section 353 of the Restatement of Torts, which provides in pertinent part: A vendor of land who conceals or fails to disclose to his vendee any condition, whether natural or artificial, which involves an unreasonable risk to persons on the land is subject to liability to the vendee and others upon the land with the consent of the vendee or his subvendee or physical harm caused by the condition after the vendee has taken possession if (a) the vendee does not know or have reason to know of the condition or the risk involved. Restatement, Torts 2d, § 353 at 235 (1965). The trial court further concluded that Industrial "knew or had reason to know" of the presence of chemical residue in its pipes prior to the fire and hence that its claim against PPG was barred. Industrial does not dispute that section 353 sets forth the governing standard of liability applicable to PPG, as a former owner of the premises. See O'Connor v. Abraham Altus, 67 N.J. 106, 114-115 (1975). However, Industrial argues that there was conflicting evidence as to whether it was aware of the presence of large amounts of chemical residue in its pipes which could cause a serious fire. We reject this argument and affirm the dismissal of Industrial's claim against PPG substantially for the reasons stated by the trial court. We note in particular that there had been approximately 20 small fires caused by the contact of acetylene torches with the piping system prior to the major fire on which Industrial's claim rests. Pugliese, as the representative of *296 Industrial, was aware of many of these fires and was thereby put on notice of the existence of flammable materials in the pipes. Even if Pugliese was unaware of the quantity of chemical residue in the pipes, the prior fires provided him with sufficient knowledge of the condition of his premises to alert him to the need to determine the magnitude of the problem. Cf. O'Connor v. Abraham Altus, supra; see also Restatement, Torts 2d, § 353(2) (1965). Accordingly, the record provides ample support for the trial court's finding that Pugliese "knew or had reason to know of the condition or the risks involved." In addition, Industrial failed to present any evidence that PPG failed to disclose whatever it knew about the chemical residue in the pipes to its vendee, which was a predecessor in title of Industrial. Therefore, we affirm the trial court's dismissal of the complaint against PPG. IV Industrial also argues that the trial court erred in excluding the testimony of its damage expert, Ira Sarasohn, as to the actual cash value of the buildings at the time of the loss. Since the trial court granted motions for dismissal at the close of Industrial's case based solely on its conclusion that Industrial's liability proofs were inadequate, this appeal could be decided without considering the exclusion of Sarasohn's testimony. However, since the judgments in favor of Commercial, Executive and FTP must be reversed and the case retried, and counsel for Industrial advised us at oral argument that he intends to offer Sarasohn's testimony again at the retrial, it is appropriate to provide some guidance with respect to the admissibility of this testimony. The trial court apparently excluded Sarasohn's testimony on the grounds that his opinion would be based substantially on information furnished to him by other persons. However, a person otherwise qualified as an expert may utilize information *297 furnished to him by others in forming an opinion. Evidence Rule 56(2) now provides in pertinent part: The facts or data in the particular case upon which an expert bases an opinion or inference may be ... made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. We note that the present formulation of this rule, which became effective in 1982, "... was adopted to `allow more latitude in the admission of expert opinion testimony' without being inconsistent with the `spirit' of the old rule." Evid.R. 56 (Anno. 1987), Comment 7 at 443; see also Olesak v. Central Mutual Ins. Co., 215 N.J. Super. 155, 158 (App.Div. 1987). If Sarasohn's testimony concerning the cash value of the building at the time of the loss is offered again at the retrial, its admissibility should be determined in light of the portion of Rule 56(2) quoted above. Accordingly, the dismissal of Industrial's claim against PPG is affirmed. The dismissal of Industrial's claim against FTP and the summary judgments granted in favor of Commercial and Executive are reversed and the case is remanded for a new trial as to these defendants. NOTES [1] Suarez lacked any insurance coverage for Industrial's claim and, according to Industrial's counsel, he is judgment proof. Hence, Industrial decided not to pursue its claim against him. [2] Pursuant to N.J.S.A. 17:22-6.42(e), which was added to the Surplus Lines Law by chapter 250 of the Laws of 1981 and became effective on August 6, 1981, a surplus lines agent may not exercise binding authority on behalf of a surplus lines insurer until the Commissioner of Insurance "... has approved the written agreement between the agent and the insurer setting forth the terms, conditions and limitations governing the exercise of the binding authority by the agent." Since this provision did not become effective until after Commercial provided coverage to Industrial, it has no applicability to this case. [3] Industrial also presented three other arguments to support a reversal of the summary judgments in favor of Commercial and Executive: (1) Commercial is estopped from denying coverage because it failed to make a timely inspection of the premises which would have disclosed that the sprinkler system was inoperative; (2) the Protective Safeguard Endorsement was not a warranty but rather a condition of the policy, and coverage cannot be forfeited for breach of a condition absent a showing of appreciable prejudice to the insurer, which Commercial failed to establish; and (3) the Protective Safeguards Endorsement was ineffective because it was not mentioned in the binder issued to Industrial. Since a reversal of the summary judgments in favor of Commercial and Executive is required in any event because of the existence of factual issues regarding the status of F.T.P. and Guthrie as alleged agents of Commercial and Executive, we find it unnecessary to deal with these alternative arguments. [4] Before trial, Industrial also proceeded against FTP on the alternative theory that FTP, acting as Commercial's agent, was estopped from relying on the Protective Safeguards Endorsement of the policy. However, Industrial properly considered this theory of liability to be foreclosed by the trial court's finding, in granting summary judgment to Commercial and Excess, that FTP had not acted as their agent. Since we have reversed the grant of summary judgment in favor of Commercial and Executive, Industrial will be entitled on remand to proceed on this alternative theory.

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156 F.Supp.2d 872 (2001) SALON GROUP, INC., an Ohio Corporation, d/b/a Jacques Dessange, Plaintiffs, v. Libby D. SALBERG, Individually and Howard David Deutsch, Individually and both jointly d/b/a Deutsch & Salberg, Attorneys; Yves Anthonioz, Individually and as agent and employee of French Hair Style and Beauty Corp., a New York Corporation; Jacques Dessange, Inc., a New York Corporation; and Franklin Holdings, S.A., a French Corporation, Defendants. No. 00 C 1754. United States District Court, N.D. Illinois, Eastern Division. March 27, 2001. *873 Jacob Daniel Azulay, Stanley J. Horn, Azulay, Horn, Villasuso & Yoo, Chicago, IL, for plaintiff. Michael Joseph Meyer, Stephen Sloan Weiss, Tribler, Orpett & Crone, Chicago, IL, William H. Roth, Kelly & Roth, New York City, for defendants. Memorandum Opinion and Order GOTTSCHALL, District Judge. Salon Group, Inc. has filed a lawsuit against French Hair Style and Beauty Corp., Jacques Dessange, Inc., Franklin Holding, S.A., and others alleging breach of contract, fraud, and violations of the Racketeering Influenced in Corrupt Organizations Act ("RICO"). These charges stem from the defendants' agreements to assist Salon in the creation and operation of a hair salon in Chicago known as DESSANGE/CHICAGO. The defendants, French Hair Style and Beauty Corp., Jacques Dessange, Inc., and Franklin Holding, S.A. now move to dismiss all counts of the complaint against them. For the reasons set forth below, the motion is granted. Background Salon Group ("Salon") is an Ohio corporation with its principal place of business in Chicago. (Am.Compl. ¶ 5.) Salon entered into agreements with French Hair Style and Beauty Corporation ("FHSBC") to operate a hair and beauty salon in Chicago called "Jacques Dessange Hair Salon" ("DESSANGE/CHICAGO"). (Am. Compl. ¶ 5.) FHSBC, a New York corporation, "is the holder of all rights to license the federally *874 registered trademark `Jacques Dessange,' and other related trademarks ..., which Marks are known throughout the world in connection with luxury hair care and hair salons." (Exhibit A to Am. Compl. at 1.) According to FHSBC, FHSBC "through Jacques Dessange himself, its team of professional hairdressers, and its research at its hair care institute in Paris, has Know-How and technical knowledge in the field of hair care, hair cutting, hair fashion and trend setting, and hair products that have acquired worldwide recognition and prestige." (Id.) As asserted by Salon Grp., FHSBC is a wholly owned subsidiary of Franklin Holding, S.A. (Am.Compl. ¶ 7.) Salon's contract with FHSBC allowed Salon to use, among other things, the Dessange name and the Dessange method of hairstyling in operating Salon's Chicago hair salon, DESSANGE/CHICAGO. (Exhibit A to Am. Compl. at 1.) Jacques Dessange, Inc. ("JDI"), a New York corporation, is a beauty salon chain in New York City with fifty individuals working across three stores. (Ltr. to INS from Yves Anthonioz, Attach. to Exh. B to Am. Compl.) JDI is a 100% wholly owned subsidiary of Franklin Holding, S.A. (Id.) According to its letterhead, JDI's executive vice-president during the relevant events of this case was Yves Anthonioz. (Id.) Based on correspondence presented by Salon, it appears that Anthonioz was the primary contact person with JDI, FHSBC, and Franklin Holding, S.A. Anthonioz arranged to bring hairstylists from France to work for Salon in DESSANGE/CHICAGO. On visa application forms and letters submitted to the United States Immigration and Naturalization Service ("INS") on behalf of these hairstylists, Anthonioz claimed that the hairstylists were being brought to the United States in order to work in JDI's stores in New York City. (Id.) Franklin Holding, S.A. ("Franklin"), a French company, is the parent company to FHSBC and JDI. According to a letter from Yves Anthonioz to the INS, "Franklin Holding S.A. operates a chain of beauty salons throughout the world under the Jacques Dessange name. We have over 220 salons in France and 90 salons throughout the world." (Ltr. to INS from Yves Anthonioz, Attach. to Exh. B to Am. Compl.) The hairstylists, whom Anthonioz sent to Chicago to work in DESSANGE/CHICAGO, originally worked for Franklin in France. (Id.) According to the plaintiff's amended complaint, Salon entered into a licensing agreement with FHSBC related to the operation of Salon's hair salon in Chicago known as DESSANGE/CHICAGO. Under the agreement, it is alleged, Salon was obligated to hire hairstylists from France, familiar with the Jacques Dessange method of hair-styling and coloring, and FHSBC was required to arrange for the provision of these hairstylists. Additionally, Salon agreed to pay all necessary expenses associated with the hairstylists' applications for visas to work in Chicago. FHSBC allegedly agreed, in turn, to ensure completion of the necessary paperwork related to the immigration of these hairstylists. In order to obtain the required visas, JDI's executive vice-president, Yves Anthonioz, "insisted" that Salon hire the law firm of Deutch and Salberg ("D&S") to perform the necessary immigration work. (Am.Compl. ¶¶ 17-18.) D&S then advised that Salon and FHSBC obtain L-1(a) visas for the five hairstylists who were supposed to come from France to Chicago in order to work in the salon. Pursuant to the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(L), et. seq., an L-1(a) Visa is available "when an American company and a foreign company, having common ownership *875 of at least 50%, seek to transfer management or executive personnel from a foreign company's operation to the United States company." (Am.Compl. ¶ 21). Salon agreed to apply and pay for these visas. After D&S obtained the visas, the five hairstylists entered the United States and began working for DESSANGE/CHICAGO. On or about October 30, 1997, the INS entered DESSANGE/CHICAGO, removed the French hairstylists from the salon, and took them into custody. The INS asserted that they took this action because the hairstylists had entered the U.S. on invalid visas. According to the INS, as alleged by Salon, the hairstylists were not entitled to hold L-1(a) visas because: (1) the hairstylists did not have management/executive positions; (2) there was no common ownership between Salon and Franklin, JDI, or FHSBC; (3) the permits were not for employment in Chicago; (4) the hairstylists were not employees of Franklin for the requisite period of time under the statute; and (5) Franklin had provided "false and fraudulent" information. (Am.Compl. ¶ 28(e).) Salon was then forced to close DESSANGE/CHICAGO until December 1, 1998 when it re-opened for business. Salon alleges that because of the "adverse publicity and the negative business conditions engendered by the INS actions and the ongoing effects after the INS actions," Salon was forced to close DESSANGE/CHICAGO permanently in June, 1999. (Am.Compl. ¶ 30.) Since then, Salon alleges, it has been unable to re-open its operations because it has been unable to locate hairstylists who are knowledgeable in the Dessange method and who have valid visas. Salon is now suing the defendants, FHSBC, Franklin, and JDI for the losses it suffered following the removal of the hairstylists. In Count I, Salon alleges that FHSBC breached the licensing agreement it signed with Salon in relation to the operation of DESSANGE/CHICAGO. In Count II, Salon alleges that all the defendants perpetrated fraud on Salon. In Count IV, Salon alleges that all the defendants violated § 2 of the Illinois Consumer Fraud and Deceptive Practices Act, 815 ILCS 505/1. In Count V, Salon alleges that the defendants committed violations of the Racketeering Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961, et. seq.; and in Count VI, Salon asserts that the defendants violated the Illinois Franchise Disclosure Act, 815 ILCS 705/6. In Count III of its complaint, Salon alleges legal malpractice against D&S, the attorneys hired by Salon to process the visas. However, neither D&S nor its attorneys individually join in the present motion to dismiss. Therefore, this opinion will address all counts but Count III. The defendants have moved to dismiss (1) all claims against Franklin on the basis of a lack of personal jurisdiction; (2) all claims against FHSBC and Franklin for insufficiency of service of process; and (3) all counts of the complaint against all defendants for failure to state a claim and for lack of subject matter jurisdiction. This opinion will begin with an examination of whether the court has subject matter jurisdiction over this case. Then, it will proceed to decide whether it has personal jurisdiction over Franklin. Next, it will examine whether Franklin and FHSBC were served properly. Finally, the opinion will go on to determine whether the substantive allegations of all five counts have been properly pled. Analysis Subject Matter Jurisdiction The first issue is whether this court has subject matter jurisdiction over this case. Although the defendants have made a *876 12(b)(1) motion challenging the subject matter jurisdiction of this court, they have not refuted the plaintiff's assertions that this court has proper subject matter jurisdiction on diversity grounds. The defendants, whose principal places of business and incorporation are either France or New York, are diverse from Salon, an Ohio corporation whose principal place of business is Chicago. In addition, Salon claims damages exceeding $75,000. The requirements for diversity jurisdiction have therefore been met. See 28 U.S.C. § 1332. Personal Jurisdiction over Franklin Franklin has moved to dismiss pursuant to Rule 12(b)(2), arguing that the court lacks personal jurisdiction over Franklin since Franklin neither does business in Illinois nor took any actions in or outside of Illinois that might have been expected to have consequences within Illinois. A federal district court exercising diversity jurisdiction has personal jurisdiction if a state court in the district in which it sits would have jurisdiction. See RAR, Inc. v. Turner Diesel, Ltd., 107 F.3d 1272, 1275 (7th Cir.1997). The exercise of jurisdiction must be consistent with the Illinois long-arm statute and the Illinois and federal constitutions. Id. at 1276. Plaintiff bears the burden of demonstrating the existence of personal jurisdiction. See Steel Warehouse of Wisconsin, Inc. v. Leach, 154 F.3d 712, 714 (7th Cir.1998). To withstand a motion to dismiss for lack of personal jurisdiction, a plaintiff must provide sufficient evidence to establish at least a prima facie case of personal jurisdiction. See Turnock v. Cope, 816 F.2d 332, 333 (7th Cir.1987); see also Boit v. Gar-Tec Prods., Inc., 967 F.2d 671, 675 (1st Cir.1992) (stating that "a prima facie showing of personal jurisdiction must be based on evidence of specific facts set forth in the record; the plaintiff must go beyond the pleadings and make affirmative proof."). Personal jurisdiction over a non-resident defendant may be based on either specific or general contacts with the forum. See RAR, Inc., 107 F.3d at 1277. Specific jurisdiction exists when the claims alleged themselves relate to, or arise out of, the defendant's contacts with the forum. See id. General jurisdiction requires continuous and systematic general business contacts with the forum. See id. Salon's argument in support of the exertion of jurisdiction over Franklin does not appear to be based on any conduct of Franklin itself in Illinois but rather that "they [sic] had enough control over Dessange and FHSBC, which clearly were doing business in Illinois." (Pl. Resp. at 3.) It is thus apparently plaintiff's theory that Franklin so controlled its subsidiaries, FHSBC and Dessange, that jurisdiction over Franklin would be proper by virtue of that control. Illinois courts recognize two methods by which a plaintiff can establish jurisdiction over a foreign parent based on the activities of its subsidiary. First, the plaintiff can provide evidence that justifies piercing the corporate veil of the subsidiary. See IDS Life Ins. Co. v. SunAmerica Life Ins. Co., 136 F.3d 537, 540 (7th Cir.1998). Alternatively, the plaintiff can show that the subsidiaries were acting as the parent's agent, so that in fact, the parent was doing business in Illinois, albeit through its subsidiaries. See id. at 541. Plaintiff has made no effort to demonstrate that the corporate veil should be pierced but rather appears to rely primarily on the agency/control theory. Salon's first major problem, an insurmountable one in the court's view, is that with respect to its agency/control theory, it relies on neither allegations in its complaint nor competent evidence submitted in connection with Franklin's motion. Rather, it relies on legal arguments taking up about one page of its response brief, pages 4-5. Even, however, if the court were to *877 accept as evidence Salon's unsworn assertions in its brief (which it will not), Salon would fail to demonstrate that the court should exercise personal jurisdiction over Franklin. Salon asserts that "there were numerous contacts between Franklin Holding and Illinois" (Pl. Resp. at 4) including "regular communication between Franklin Holding and its subsidiaries" (Id.); "[o]fficers of FHSBC and Dessange regularly reported to Franklin Holding's managing director" (Id.); "[t]he Managing Director of Franklin Holding, Benjamin Dessange is also the Vice President of FHSBC" (Id.). But these ties between a parent and a subsidiary are nothing more than the normal incidents of such a relationship. See IDS, 136 F.3d at 540. Beyond this, Salon gives the court nothing but vague conclusions. It states that "[m]any or most of Dessange's and FHSBC's officers and members of the board of directors have come from Franklin Holding" (Pl. Resp. at 4) and "Franklin Holding directs and controls its wholly-owned subsidiaries, Dessange and FHSBC, and through it [sic] has many contacts with Illinois." (Id.) Such vague, conclusory statements can add nothing to the court's consideration of this issue. Salon has actually provided evidence, in the form of a declaration of John Mills, the president of Salon, that in December 1997, he attended two meetings in Chicago with a representative of Franklin to "discuss possible reimbursement for the losses" Salon incurred as a result of the INS raids "and to further the process of bringing in more hairstylists to my salon who work for Jacques Dessange in France." (Decl. of John Mills at 1, Exh. A to Pl. Resp.) But the presence of a representative of the parent only after the events giving rise to the claim is insufficient to establish either specific or general jurisdiction, since the presence was not related to the acts giving rise to the claim, nor did it represent a continuous and systematic course of business. Franklin's motion to dismiss for lack of personal jurisdiction is granted. Franklin's motion to dismiss based on improper service is denied as moot. Service of Process Defendant FHSBC asserts that it was not properly served with process. Under Federal Rule of Civil Procedure 4(h)(1), service of process on a domestic or foreign corporation may be properly effected in a judicial district of the United States "in the manner prescribed for individuals by subdivision (e)(1), or by delivering a copy of the summons and complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or law to receive service of process. ..." Fed.R.Civ.P. 4(h)(1). Rule 4(e)(1) provides that service of process is also proper if done "pursuant to the law of the state in which the district court is located, or in which service is effected. ..." Id. at 4(e)(1). Under Illinois law, "a private corporation may be served (1) by leaving a copy of the process with its registered agent or any officer or agent of the corporation found anywhere in the State; or (2) in any other manner now or hereafter permitted by law." 735 ILCS § 5/2-204. Salon attempted to serve FHSBC by serving Yves Anthonioz, whom Salon asserts, and FHSBC denies, was a director of FHSBC at the time of service, March 23, 2000. The court notes, to begin with, that neither party has addressed the issue of whether, under Illinois law, a corporation can be served by service upon a director, at least without evidence that the director is the corporation's agent for purposes of accepting service. The only case the court has found addressing this issue is admittedly of ancient vintage, but it suggests that "agent or officer" language cannot *878 be construed to encompass a corporate director. See Sarelas v. Fagerburg, 316 Ill.App. 606, 45 N.E.2d 690, 695 (1942). In contending that Anthonioz was a director, Salon points to a Dun & Bradstreet report and a report from the New York Department of State, one indicating that Anthonioz was a director of FHSBC and the other indicating that he was Chairman of the Board. (Exh. E, F to Pl. Resp.) FHSBC provides a declaration by Benjamin Dessange, the managing director of Franklin Holding and Vice President of FHSBC, averring that Anthonioz has had no affiliation with FHSBC since March, 1998, long before process was served in March, 2000. (Decl. of Benjamin Dessange, Attach to Def. Mot. to Dismiss.) Furthermore, FHSBC argues that the report from the New York Department of State was not current as of the time of service and that the Dun & Bradstreet report was inaccurate. This court concludes that FHSBC was not properly served. Salon has the burden of establishing that it properly effectuated service. See Slates v. Int'l House of Pancakes, Inc. 90 Ill.App.3d 716, 46 Ill.Dec. 17, 413 N.E.2d 457, 463 (1980) (holding that the plaintiff had the burden of establishing that he properly served an agent of the defendant.) Though self-serving, Dessange's declaration unequivocally states that Anthonioz was not an officer of FHSBC in March, 2000. Salon, on the other hand, maintains that FHSBC's evidence is "directly contradicted" by reports from Dun & Bradstreet and the Department of State of New York. The problem for Salon is that these reports do not directly contradict Dessange's declaration. Both are vague about the time periods during which Anthonioz was allegedly a director of FHSBC. The New York document on which Salon relies is a July, 1999 report from the New York Department of State, almost a year before service was attempted, and it indicates that the latest biennial statement from FHSBC was "overdue." (Exh. F to Pl. Resp.) Even assuming that Anthonioz was a director as of July, 1999, rather than the date on which the information set forth was submitted, the New York state document provides no evidence that Anthonioz was a director in March, 2000. The Dun & Bradstreet report states that it is updated weekly and indicates that its "source" is the "Department of State." (Exh. E to Pl. Resp.) Salon has made no effort to advise the court of the currency of the information on which this report is based or even to argue what the legal standing of such a Dun & Bradstreet printout is. In Duncan Electric Co. v. Trans Data, Inc., 325 N.W.2d 811 (Minn.1982), the Minnesota Supreme Court considered a conflict between a Dun & Bradstreet report and affidavits denying an individual's authority to accept service. The Minnesota service of process statute at issue was similar to the one used today in Illinois. See 735 ILCS § 5/2-204 (stating that "a private corporation may be served (1) by leaving a copy of the process with its registered agent or any officer or agent of the corporation found anywhere in the State; or (2) in any other manner now or hereafter permitted by law.") Rule 4.03 of the Minnesota Rules of Civil Procedure requires service upon a domestic corporation by delivering a copy "to an officer or managing agent, or to any other agent authorized expressly or impliedly or designated by statute to receive service of summons." Duncan, 325 N.W.2d at 811. In Duncan, affidavits submitted by the defendants stated that the individual who accepted service was not authorized to accept service on behalf of the corporation. See id. Plaintiff relied upon the "designation of the individual in a Dun & Bradstreet publication as an `office manager'," but that *879 evidence the court indicated, "in light of contrary affidavits," was insufficient to establish the requisite express or implied authority to accept service.[1]See id. The evidence is insufficient to satisfy plaintiff's burden to show that FHSBC was properly served. FHSBC's motion to dismiss is granted. Failure to State a Claim in Counts II, IV-VI[2] With Franklin and FHSBC out of the case, the court turns to JDI's Rule 12(b)(6) motion to dismiss Counts II and IV-VI for failure to state a claim. In Counts II, IV, V, and VI, Salon alleges that the defendants entered into a scheme to defraud Salon by, among other things, "knowingly recommending, advising, and representing that the L-1 visa was the right and proper visa to be used for [Salon's] operation" (Am.Compl. ¶ 43(b)) when the defendants knew that these were improper visas. Although Salon does not fully explain its allegations, it is assumed that Salon is alleging injuries that stem from relying on these representations in hiring attorneys and making its subsequent investments in DESSANGE/CHICAGO. Salon uses this alleged fraudulent scheme as the basis for its allegations of common law fraud in Count II; its allegations of violations of the Illinois Consumer Fraud and Deceptive Practices Act in Count IV; its allegations of violations of RICO in Count V; and its allegations of violations of the Illinois Franchise Disclosure Act in Count VI. The defendants assert that these allegations of fraud are not pled with particularity as required by Federal Rule of Civil Procedure 9(b). Salon responds by saying that it "does not deny that it erred and that each of these counts lacks the necessary specific factual allegations. [Salon] simply states that it wishes to file a Second Amended Complaint to correct these errors." (Pl. Resp. at 11.) Defendants reply that Salon should not be given such an opportunity to amend its complaint. The federal rules require that leave to amend be freely given, and the court will therefore give Salon one more chance to amend. That said, the court must note that Salon appears unconcerned with trying to draft a pleading that conforms to Rule 9(b), and its presentation of its position on matters such as personal jurisdiction over Franklin and the propriety of its service of process was superficial and not particularly helpful to the court. Its rather cavalier approach to these matters has cost the defense and the court considerable time and effort. If any further pleading suffers from defects comparable to those in the complaint currently before the court, no further amendment will be allowed.[3] *880 Conclusion For the foregoing reasons, Counts I, II, IV, V, and VI are dismissed, and defendants Franklin Holdings, S.A. and French Hair Style and Beauty Corp. are dismissed from this action. Any amended complaint must be filed within twenty-one (21) days of the issuance of this order. NOTES [1] A number of courts have pointed out inaccuracies in Dun & Bradstreet reports. See ATA Info. Svs., Inc. v. J.C.I., Inc., 1992 WL 162972, *2 (N.D.Ill. July 7, 1992) (noting that Dun & Bradstreet report incorrectly listed one of the defendants as an officer of defendant corporation); In re Polo Ralph Lauren, 1996 WL 98981, *4 (N.D.Ill. Feb. 29, 1996) (Dun & Bradstreet had listed a company as a partnership when, in reality, it was a Chapter "S" corporation); International Ins. Co. v. Saco Defense, Inc., 1998 WL 939680, *3 (N.D.Ill. Jan. 8, 1998) (noting that Dun & Bradstreet can be inaccurate). [2] In Count I, Salon alleges that FHSBC breached its agreement to arrange for the services of the hairstylists who were to staff DESSANGE/CHICAGO. Because Count I is asserted solely against FHSBC, and because FHSBC is dismissed from this lawsuit for insufficiency of service of process, Count I is dismissed. [3] The court reminds Salon that allegations of RICO violations must be pled carefully. In its present form, Salon's RICO count fails to allege, among other things, which substantive portions of RICO have been violated, how they were violated, how Salon was injured through their violation, which defendants conspired to commit these violations, what agreements were made in furtherance thereof, what facts support any of these allegations, and very importantly, the dates, the predicate acts, and the actors associated with the pattern of racketeering that allegedly occurred. The court sees little chance, given plaintiff's factual allegations, that it can plead the relationship and continuity aspects of RICO adequately.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2318481/

156 F.Supp.2d 798 (2001) Henry Lee DILLARD, # 245428, Petitioner, v. John PRELESNIK, Respondent. No. CIV.A.00-71114-DT. United States District Court, E.D. Michigan, Southern Division. July 18, 2001. *799 *800 Henry Dillard, Handlon Michigan Training Unit, Ionia, MI, pro se. Debra M. Gagliardi, Michigan Department of Attorney General, Habeas Corpus Division, Lansing, MI, for John Prelesnik, respondents. MEMORANDUM OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS ROSEN, District Judge. I. Introduction Petitioner, Henry Lee Dillard ("Petitioner"), presently confined at the Handlon Michigan Training Unit in Ionia, Michigan, has filed this pro se application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, Petitioner attacks his conviction of second degree murder, M.C.L. 750.317 and possession of a firearm during the commission of a felony, M.C.L. 750.227b. Petitioner was sentenced to consecutive prison terms of twenty-five to forty years and two years for these crimes. Petitioner contends that his conviction for second degree murder is supported by constitutionally insufficient evidence. II. Factual Background Petitioner's convictions arise from the murder of Donald Wright on July 19, 1994. Wright was shot to death in his parked car at about 11:00 p.m. Wright was sleeping in his car outside Timbertown Automotive, an auto repair shop where he worked. Wright planned to stay there until his workday began the next morning. Petitioner, his co-defendant Toby Roger Davis, and two other men, Edward Christopher and Edwin Ellis Rodgers, were riding around in Petitioner's car that night. Christopher and Rodgers witnessed the shooting and heard Davis and Petitioner talk about it afterwards. Christopher and Rodgers were not prosecuted. Both testified for the prosecution. The evidence indicated that Petitioner's co-defendant, Toby Roger Davis, approached the victim's car on the driver's side and fired the first shot at the victim. Edward Christopher testified that, after Davis had fired the first shot, Petitioner jumped out of his vehicle and then joined Davis at the driver's side window of the victim's car.[1] Christopher heard another *801 shot while both Davis and Petitioner were at the driver's window. Christopher could not tell who fired the second shot. Christopher saw Petitioner reach into the victim's car through a window and carry something away. Petitioner had some money in his hands when he returned to his car after the shooting. Upon returning to their car, Davis and Petitioner both claimed to have shot the victim in the head. Trial Transcript Volume III ("Tr. Vol.III") at 85-92. Donald Wright was killed by a gunshot to the head. Wright was apparently shot while sleeping in his car near his place of employment. The fatal bullet entered his head on the left side of his head above his ear, passed through his brain, and exited out of his right forehead. Wright also had a wound on the little finger of his right hand. This wound may or may not have been caused by the bullet which killed Wright. A nine millimeter bullet and a .22 caliber bullet were found in the victim's car. The bullet's entry wound in Wright's head was about ten millimeters in diameter. A.22 caliber bullet generally does not make an entry wound that large. There was an exit wound from which the bullet left the victim's head through his right forehead. A nine millimeter handgun round is much more powerful than a .22 caliber round. Generally, .22 caliber bullet fired into a person's skull will stay inside the skull after passing through the brain. However, a 9 millimeter bullet has substantially more force. When fired into a human skull, it often exits through the opposite side of the skull after passing through the brain. Tr. Vol. III at 149-54. Based on these facts, forensic pathologist Dr. Kanu Virani opined that the 9 mm bullet caused Donald Wright's death. Tr. Vol. III at 164. Dr. Virani also noted, however, that it was very unlikely but not impossible, that the victim had been killed by the .22 caliber bullet. Edwin Rodgers testified that, after Davis fired the first shot, Petitioner approached the victim's vehicle on the passenger side and fired a shot. The second shot was fired only a few seconds after the first shot. Rodgers thought Petitioner was carrying a gun which was smaller than the gun Davis carried. Rodgers testified that he heard Petitioner and Davis argue about who had shot the victim in the head. Tr. Vol. IV at 15-67. Kent Gardner, an expert on firearms identification, testified that 9mm guns are generally larger than .22 caliber guns, but that both of these calibers are available in guns various sizes. Petitioner did not testify at trial. Petitioner contends that the evidence shows that his co-defendant Toby Davis fired the shot which killed Donald Wright. Further, Petitioner argues, there was insufficient evidence to show that he aided and abetted Davis in the killing. III. Procedural History Petitioner appealed as of right to the Michigan Court of Appeals. Petitioner raised the following claims: I. Defendant-Appellant's conviction for murder in the second degree was obtained without sufficient evidence to prove guilt beyond a reasonable doubt. II. Failure to grant separate trials for the Defendant-Appellant and his co-defendant resulted in prejudicial error. III. The sentence imposed was not proportionate to the crime. IV. The sentence imposed by the trial court was so disparate that it amounts to *802 cruel and unusual punishment and thereby violates the United States and Michigan Constitutions. Petitioner's appeal was consolidated with the appeal of his co-defendant. People v. Toby Roger Davis and Henry Lee Dillard, Michigan Court of Appeals Docket Nos. 189228 and 189232 (October 23, 1995). The Michigan Court of Appeals affirmed Petitioner's convictions and sentences. The Michigan Court of Appeals rejected Petitioner's insufficiency of the evidence claim, reasoning as follows: In order to be convicted of second-degree murder, the following elements must be established beyond a reasonable doubt: that defendant caused a death with malice and without justification or excuse. People v. Neal, 201 Mich.App. 650, 654, 506 N.W.2d 618 (1993). Defendant takes issue only with whether there was sufficient evidence from which a jury could have concluded that the cause the death of the victim. While much evidence pointed at Davis as being the shooter who delivered the fatal bullet, there was evidence pointing directly at Dillard, including that Dillard fired a second shot into the victim's car and claimed that he fired the fatal bullet. Dillard also bragged to a witness that he was the shooter at the second crime scene. The bullets from the that crime scene matched the nine-millimeter bullet suspected to have caused Wright's death. The jury could have believed that Dillard, and not Davis, had the nine-millimeter gun responsible for the death. Moreover, there was testimony that it was not impossible that the .22-caliber bullet caused the death. Therefore, even if Dillard had the .22-caliber gun and not the nine-millimeter gun, the jury could have believed that he fired the fatal shot, especially where the jury could have inferred from other evidence that Davis' shot, the first shot, may have just hit Wright in the hand and not the head. Viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have determinated that the essential elements of the crime were proven beyond a reasonable doubt. People v. Wolfe, 440 Mich. 508, 515, 489 N.W.2d 748 (1992). More importantly, we note that Dillard could have been found guilty on an aiding and abetting theory as opposed to being found guilty as the principal. There was ample evidence to support his conviction as an aider and abettor. Dillard ignores this aspect of the case in its entirety when making his arguments on appeal. People v. Davis and Dillard, Nos. 189228 and 189932 at 5-6. Petitioner's application for leave to appeal in the Michigan Supreme Court raising the same issues was denied, with Justices Cavanagh and Kelly indicating that they would grant leave to appeal. People v. Dillard, 459 Mich. 945, 590 N.W.2d 66 (1999). Petitioner has filed the present application for a writ of habeas corpus raising the following claim as grounds for relief: I. PETITIONER'S CONVICTION OF SECOND DEGREE MURDER IS NOT SUPPORTED BY CONSTITUTIONALLY SUFFICIENT EVIDENCE. Respondent has filed an Answer to the petition and contends that it should be denied because the Michigan appellate courts' denial of Petitioner's sufficiency of the evidence claim was a reasonable application of applicable federal constitutional precedent. IV. Standard of Review The provisions of the Antiterrorism and Effective Death Penalty Act of 1996, *803 Pub.L. No. 104-132, 110 Stat. 1214 (April 24, 1996)("AEDPA" or "the Act"), govern this case because petitioner filed his habeas corpus petition after the effective date of the Act. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). As amended, 28 U.S.C. § 2254(d) provides that: (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. The United States Supreme Court has recently addressed the question of the proper interpretation of the amendments to the habeas corpus statute concerning entitlement to relief. The Supreme Court has stated that "[i]n sum, § 2254(d)(1) places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court." Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). The Supreme Court summarized the standard of review as follows: In sum, § 2254(d)(1) places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court. Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied — the state-court adjudication resulted in a decision that (1) "was contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "involved an unreasonable application of ... clearly established Federal law, as determined by the Supreme Court of the United States." Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 412-13, 120 S.Ct. at 1523. "[A] federal habeas court making the `unreasonable application inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable.'" Williams, 529 U.S. at 409, 120 S.Ct. at 1521. The reviewing court should not inquire whether all reasonable jurists would agree that the state court's decision was reasonable or unreasonable. The reviewing court must be aware that "an unreasonable application of federal law is different from an incorrect application of federal law." Williams, 529 U.S. at 410, 120 S.Ct. at 1522. Where constitutional trial error has been shown and the reviewing court concludes that the error had a substantial and injurious effect or influence in determining the jury's verdict, a state court ruling finding *804 such error harmless beyond a reasonable doubt is outside the realm of plausible, credible outcomes and the petitioner is entitled to habeas relief. Barker v. Yukins, 199 F.3d 867 (6th Cir.1999), cert. denied, 530 U.S. 1229, 120 S.Ct. 2658, 147 L.Ed.2d 273 (2000). "[A] state court's application of federal law is unreasonable and a writ may issue only if reasonable jurists would find it so arbitrary, unsupported or offensive to existing precedent as to fall outside the realm of plausible, credible outcomes." Barker, 199 F.3d at 871. "When a habeas court is in grave doubt as to the harmlessness of an error that affects substantial rights, it should grant relief." O'Neal v. McAninch, 513 U.S. 432, 445, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995). A federal court reviewing a habeas petition must apply the presumption of correctness to evidence-supported factual determinations made by a state court. West v. Seabold, 73 F.3d 81, 83 (6th Cir. 1996); cert. den. 518 U.S. 1027, 116 S.Ct. 2569, 135 L.Ed.2d 1086 (1996); Lundy v. Campbell, 888 F.2d 467, 469 (6th Cir.1989), cert. denied, 495 U.S. 950, 110 S.Ct. 2212, 109 L.Ed.2d 538 (1990). This presumption may only be overcome by the presentation of clear and convincing evidence by the petitioner. 28 U.S.C. § 2254(e)(1). In a post-AEDPA case involving a challenge to the sufficiency of the evidence, the Sixth Circuit Court of Appeals has stated that "[p]ursuant to subsection (1), a writ of habeas corpus may be granted if the court concludes that `no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Warren v. Smith, 161 F.3d 358, 360 (6th Cir.1998), cert. denied, 527 U.S. 1040, 119 S.Ct. 2403, 144 L.Ed.2d 802 (1999)(quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). V. Discussion Sufficiency of the Evidence Claim Petitioner contends that his conviction is not supported by constitutionally sufficient evidence. The Due Process Clause of the Fourteenth Amendment protects an accused in a criminal case against conviction except upon proof beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The issue before this Court is whether the prosecution presented evidence from which a reasonable jury could find that the essential elements of the crime were proven beyond a reasonable doubt.[2] The appropriate standard of review in a federal habeas corpus proceeding involving a claim of insufficiency of evidence in a state criminal conviction is whether, after reviewing the evidence in the light most favorable to the government, "any rational trier of fact could have found the elements of the offense beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This standard of review recognizes the trier of fact's responsibility to reasonably resolve conflicts *805 in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson v. Virginia, supra at 318, 99 S.Ct. 2781. The reviewing court does not reweigh the evidence or redetermine the credibility of the witnesses whose demeanor has been observed by the finder of fact. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983). Kines v.. Godinez, 7 F.3d 674, 678 (7th Cir.1993); cert denied, 510 U.S. 1200, 114 S.Ct. 1314, 127 L.Ed.2d 664 (1994). Determination of the credibility of a witness is within the sole province of the finder of fact and is not subject to review. United States v. Saunders, 886 F.2d 56 (4th Cir.1989). The habeas court does not substitute its judgment for that of the finder of fact. United States v. Jackson, 55 F.3d 1219, 1225 (6th Cir.1995). The habeas court must review all of the evidence in the record and determine whether a reasonable jury could have found guilt beyond a reasonable doubt. "The evidence must afford a substantial basis from which a fact in issue can reasonably be inferred." Spalla v. Foltz, 615 F.Supp. 224, 227 (E.D.Mich.1985), aff'd, 788 F.2d 400 (6th Cir.), cert. denied, 479 U.S. 935, 107 S.Ct. 410, 93 L.Ed.2d 362(1986). Circumstantial evidence from which a reasonable inference of guilt beyond a reasonable doubt may be drawn is constitutionally sufficient. Id.; Evans-Smith v. Taylor, 19 F.3d 899, 909 (4th Cir.), cert. denied, 513 U.S. 919, 115 S.Ct. 298, 130 L.Ed.2d 211 (1994)(holding that circumstantial evidence that Evans-Smith strangled his wife and staged a fake robbery-rape scene to conceal his crime was insufficient to support his murder conviction). Petitioner challenges the sufficiency of the evidence to support his second degree murder conviction. This Court must reject his challenge if, considering the evidence in the light most favorable to the prosecution, it concludes that a rational jury could have found that the elements of the crime were proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. at 319, 99 S.Ct. 2781. In making this judgment, this Court must bear in mind that the beyond a reasonable doubt standard, itself mandated by the Due Process Clause, requires the factfinder "to reach a subjective state of near certitude of the guilt of the accused [and] symbolizes the significance that our society attaches to the criminal sanction and thus to liberty itself." Jackson v. Virginia, 443 U.S. at 315, 99 S.Ct. 2781.[3]See also, Victor v. Nebraska, 511 U.S. 1, 14, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994)(rejecting a due process challenge to a jury instruction in a criminal case, concluding that, "the reference to moral certainty, in conjunction with the abiding conviction language, impressed upon the factfinder the need to reach a subjective state of near certitude of the guilt of the accused"); United States *806 v. Fountain, 993 F.2d 1136, 1139 (4th Cir. 1993); and "Beyond Reasonable Doubt" 68 N.Y.U.L.Rev. 970 (1993)(Newman, J.). This Court recognizes that the very existence of the Jackson test presupposes that juries accurately charged on the elements of a crime and on the strict burden of persuasion to which they must hold the prosecution, nevertheless may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt. The test was adopted to provide an additional safeguard against that possibility, and gives added assurance that guilt should never be found except on a rationally supportable state of near certitude, that is, proof upon which a rational factfinder could find proof of the crime beyond a reasonable doubt. Evans-Smith v. Taylor, 19 F.3d at 905. Therefore, the question before this Court in the instant case is whether the evidence, taken together and viewed in the light most favorable to the prosecution, could allow any rational trier of fact to conclude beyond a reasonable doubt that Petitioner committed the elements of second degree murder as the principal, or as an aider and abettor. Warren v. Smith, 161 F.3d at 360.[4] In conducting such an inquiry this Court considers all the evidence presented in the record. Finally, the Jackson standard "must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law." Jackson, 443 U.S. at 324 n. 16, 99 S.Ct. 2781. Petitioner was convicted of second-degree murder. To convict a defendant second-degree murder, it must be shown that the defendant "acted with intent to kill or to inflict great bodily harm or with a wanton and willful disregard of the likelihood that the natural tendency of his behavior is to cause death or great bodily harm." People v. Aaron, 409 Mich. 672, 733, 299 N.W.2d 304 (1980). Second-degree murder is a killing committed with malice aforethought, but without premeditation and without deliberation. People v. Morrin, 31 Mich.App. 301, 310-311, 187 N.W.2d 434, 438-439 (1971), leave den., 385 Mich. 775 (1975). Malice aforethought is the intention to kill, actual or implied, under circumstances which do not constitute excuse (such as insanity) or justification (such as self-defense) or mitigate the degree of the offense to manslaughter. Id.[5] *807 The elements of murder are (1) the killing of a human being (2) with the intent to kill, or to do great bodily harm, or with wilful and wanton disregard of the likelihood that the natural tendency of one's actions will be to cause death or great bodily harm. People v. Kelly, 423 Mich. 261, 273, 378 N.W.2d 365 (1985); People v. Spearman, 195 Mich.App. 434, 491 N.W.2d 606 (1992). The Michigan Supreme Court has summarized the law of first and second degree murder as follows: What was known at common law as the crime of murder, and what is now known under our statutory scheme as the crime of second-degree murder, M.C.L. § 750.317; M.S.A. § 28.549, is committed only if the actor entertains one of three possible intents: the intent to kill, the intent to inflict great bodily harm, or the intent to create a very high risk of death or great bodily harm with the knowledge that death or great bodily harm is the probable result. People v. Aaron, 409 Mich. 672, 713-714, 299 N.W.2d 304 (1980). In contrast, the statutory crime of first-degree premeditated murder is committed only if the defendant entertains the intent to kill. People v. Garcia, 398 Mich. 250, 259, 247 N.W.2d 547 (1976). In addition, the intent to kill in first-degree premeditated murder must be deliberate and premeditated. People v. Hansen, 368 Mich. 344, 351, 118 N.W.2d 422 (1962). People v. Dykhouse, 418 Mich. 488, 495, 345 N.W.2d 150, 151 (1984).[6] The requisite intent to be convicted as an aider and abettor is that necessary to be convicted of the crime "as a principal." People v. Kelly, 423 Mich. 261, 278, 378 N.W.2d 365 (1985). Malice as used in the context of second-degree murder (or felony murder) is a general intent crime and "if the aider and abettor participates in a crime with knowledge of the principal's intent to kill or to cause great bodily harm, he is acting with `wanton and willful disregard' sufficient to support a finding of malice under Aaron." Id. at 278-279, 378 N.W.2d 365. Defendant was also charged under the aiding and abetting statute, M.C.L. § 767.39; M.S.A. § 28.979, which states: "Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense." In People v. Palmer, 392 Mich. 370, 378, 220 N.W.2d 393 (1974), the Court explained the term "aiding and abetting": *808 In criminal law the phrase "aiding and abetting" is used to describe all forms of assistance rendered to the perpetrator of a crime. This term comprehends all words or deeds which may support, encourage or incite the commission of a crime. It includes the actual or constructive presence of an accessory, in preconcert with the principal, for the purpose of rendering assistance, if necessary. 22 CJS, Criminal Law, § 88(2), p 261. The amount of advice, aid or encouragement is not material if it had the effect of inducing the commission of the crime. People v. Washburn, 285 Mich. 119, 126, 280 N.W. 132 (1938). See also, People v. Cortez, 131 Mich.App. 316, 333, 346 N.W.2d 540 (1984). Aiding and abetting describes all forms of assistance given to the perpetrator of a crime and includes all words or acts that might support, encourage, assist, or incite the commission of a crime. To support a finding that the defendant aided and abetted a crime, the prosecutor must prove beyond a reasonable doubt that: (1) the crime charged was committed by the defendant or some other person, (2) the defendant performed acts or gave encouragement that assisted, supported, encouraged, or incited the crime, and (3) the defendant intended the commission of the crime or knew that the principal intended its commission at the time he gave aid and encouragement. People v. Carines, 460 Mich. 750, 757-58, 597 N.W.2d 130, 135-36 (1999). See also, People v. Wilson, 196 Mich.App. 604, 614-15, 493 N.W.2d 471, 476-77 (1992). In the present case, the prosecutor maintained that Petitioner could be found guilty of second degree murder either as the principal, or as an aider and abettor. Overwhelming evidence showed beyond a reasonable doubt that the victim, Donald Wright, was murdered, shot to death in his car while sleeping (or immediately upon awakening) in his car outside his place of employment. Overwhelming evidence also showed beyond a reasonable doubt that both Petitioner and his co-defendant Toby Roger Davis participated in the murder and that both fired a shot at the victim. As noted by the Michigan Court of Appeals, the evidence of which shooter fired the fatal shot was mixed. However, as also noted by the Michigan Court of Appeals, there was ample evidence to support Petitioner's conviction of second degree murder as an aider and abettor. There was, in fact, overwhelming evidence that Petitioner either aided and abetted Toby Roger Davis in murdering Donald Wright (if Davis fired the fatal shot), or that Petitioner killed Wright himself. Petitioner does not dispute that he rode around armed with a handgun while Davis drove his car to the place where Donald Wright was accosted and killed. Moreover, Petitioner does not dispute and the evidence was overwhelming that, only seconds after Toby Davis accosted Wright and fired a shot at him from point blank range, Petitioner did the same. This evidence was more than sufficient to allow a rational jury to conclude beyond a reasonable doubt that Petitioner performed acts that assisted, supported, encouraged, or incited Davis to attack and shoot at Wright. Petitioner's acts of approaching Wright and shooting at him at very close range also provided overwhelming evidence that Petitioner intended to kill or do great bodily harm to Wright; thus, Petitioner himself demonstrated the intent necessary to support his second-degree murder conviction. Accompanying Davis to the scene of the crime while armed, rapidly following him to accost the victim and shooting at the victim moments after Davis did shows that Petitioner was in *809 league with Davis in the murderous enterprise. It was not necessary for Petitioner to have fired before or simultaneously with Davis for a rational jury to infer from the evidence that Petitioner gave substantial assistance, support, encouragement, and incitement to Davis. Nor was it necessary for any witness to testify as to what verbal encouragement Petitioner may have given Davis before the shooting. Petitioner's deeds provided overwhelming evidence that he aided and abetted his co-defendant in the second degree murder of Donald Wright. The fact that Petitioner ran up to Donald Wright's car and shot at him moments after Davis did and the possibility that Wright may already have been dead or dying when Petitioner fired his gun does not mean that a rational jury could not infer from these facts that Petitioner gave Davis encouragement and assistance in murdering Wright. On the contrary, Petitioner's acts provided compelling evidence from which a rational jury could conclude that he assisted and encouraged Davis in the killing before Davis approached Wright and shot at him and that Petitioner intended to kill or do great bodily harm to Wright. Petitioner could well have been convicted of first degree felony murder. This Court concludes that the Michigan Court of Appeals' decision that Petitioner's second degree murder conviction is supported by constitutionally sufficient evidence is an objectively reasonable application of controlling federal law. Petitioner's claim that his murder conviction is supported by insufficient evidence because it was not clearly established that he fired the shot which killed Donald Wright lacks merit and does not warrant habeas corpus relief. VII. Conclusion Based on the foregoing, IT IS ORDERED that the petition for a writ of habeas corpus is DENIED and the matter is DISMISSED WITH PREJUDICE. NOTES [1] Christopher also testified that he was charged with assault with intent to rob while armed, assault with intent to commit murder, conspiring to commit armed robbery, and conspiring to commit murder. All four of these charges carry possible life sentences in Michigan. Tr. Vol. III at 102-03. Christopher received complete immunity from all charges before testifying at Petitioner's trial. Tr. Vol. III at 76-77. [2] Where the defense presents evidence, it is possible that this evidence might, in fact, directly or inferentially support a reasonable finding of guilt. For instance, if a defense witness called to provide alibi evidence actually testified she never saw the defendant the day of the crime, or worse (for the defendant) testified she saw the defendant and victim together shortly before the crime. However, in the present case, the defense presented no witnesses or other evidence. Therefore, the question in this case is whether the prosecution introduced sufficient evidence of guilt for a reasonable or rational jury to find proof of the crime beyond a reasonable doubt. A defendant's guilt beyond a reasonable doubt cannot be rationally or reasonably inferred from his failure to testify or present witnesses, because this would 1) shift the burden of proof from the prosecution to the defendant and 2) violate the defendant's Fifth Amendment right not to testify. [3] "In a criminal case [] we do not view the social disutility of convicting an innocent man as equivalent to the disutility of acquitting someone who is guilty.... In this context, I view the requirement of proof beyond a reasonable doubt in a criminal case as bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free." It is only because of the nearly complete and long-standing acceptance of the reasonable-doubt standard by the States in criminal trials that the Court has not before today had to hold explicitly that due process, as an expression of fundamental procedural fairness, requires a more stringent standard for criminal trials than for ordinary civil litigation. In re Winship, 397 U.S. at 371, 90 S.Ct. 1068(Harlan, J., concurring). [4] This Court recognizes that, under the AEDPA, habeas relief may be granted only if a state court decision is contrary to controlling United States Supreme Court precedent, an objectively unreasonable application of such precedent, or based on an unreasonable determination of the facts. To warrant habeas relief, a state court adjudication must not be merely incorrect; it must also be objectively unreasonable. Williams v. Taylor, 529 U.S. at 409-411, 120 S.Ct. 1495. The First Circuit has recently stated that habeas review of an insufficiency of the evidence claim involves examining whether the state court decision "is objectively unreasonable is layered on top of the underlying standard governing the constitutional right asserted[,]" and that "[i]t may be useful, although not mandatory, to review first the underlying constitutional issue, here the Jackson question." Hurtado v. Tucker, 245 F.3d 7, 15 (1st Cir.2001). This Court disagrees that an additional level of deference to the state court's decision is required in an insufficiency of the evidence claim. Under Jackson, a defendant is only entitled to relief from a jury conviction if the evidence was so deficient that no reasonable or rational jury could have found the elements of the crime beyond a reasonable doubt. Where the evidence presented at trial was so weak that the petitioner is entitled to relief under Jackson, because no rational or reasonable jury could have found proof beyond a reasonable doubt of all the elements of the crime, a state trial or appellate court's decision upholding the defendant's conviction is objectively unreasonable. [5] In People v. Morrin, Justice (then Judge) Levin succinctly defined second-degree common-law murder as follows: A person who kills another is guilty of the crime of murder if the homicide is committed with malice aforethought. Malice aforethought is the intention to kill, actual or implied, under circumstances which do not constitute excuse or justification or mitigate the degree of the offense to manslaughter. The intent to kill may be implied where the actor actually intends to inflict great bodily harm or the natural tendency of his behavior is to cause death or great bodily harm. People v. Morrin, 31 Mich. App. at 310-11, 187 N.W.2d 434. (Footnotes omitted.) [6] Consequently, second-degree murder is always a lesser included offense of first-degree murder. First-degree murder is second-degree (common-law) murder plus an element of either premeditation or the perpetration or attempt to perpetrate an enumerated felony. People v. Allen, 390 Mich. 383, 212 N.W.2d 21 (1973). Conversely, second-degree murder is first-degree murder minus premeditation or the enumerated felony. People v. Carter, 395 Mich. 434, 437-438, 236 N.W.2d 500, 502 (1975).

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2325472/

29 A.3d 1244 (2011) In the Matter of Marc B. PRESS. No. 2011-352-M.P. Supreme Court of Rhode Island. November 4, 2011. David D. Curtin. Marc B. Press. ORDER This disciplinary matter is before the court pursuant to a decision and recommendation of the Supreme Court Disciplinary Board (board) that the respondent, Marc B. Press, be suspended from the practice of law. Article III, Rule 6(d) of the Supreme Court Rules of Disciplinary Procedure provides in pertinent part: "If the [Disciplinary] Board determines that a proceeding * * * should be concluded by public censure, suspension or disbarment, it shall submit its findings and recommendations, together with the entire record, to this Court. This Court shall review the record and enter an appropriate order." The respondent was before the board pursuant to a petition for disciplinary action alleging that he had committed professional misconduct by commingling and converting funds he had received on behalf of a client. The respondent did not contest the factual allegations of the petition and acknowledged he had violated the disciplinary rules as charged. When he appeared before the board he presented mitigation evidence only. The undisputed facts are as follows. Robert D'Uva was injured in an automobile accident in November of 2007. He incurred medical bills totaling $3,416 from various providers for treatment relating to his injuries. He retained the respondent to represent him on a contingent-fee basis in his claim for damages resulting from that accident. The respondent negotiated a settlement on D'Uva's behalf in May of 2008 in the amount of $7,800. Subsequent to D'Uva's endorsement of the settlement check, the proceeds were deposited into the respondent's client account. Although the account was captioned as a client account, the respondent regularly used it for both client and personal purposes in violation of Article V, Rule 1.15(a) of the Supreme Court Rules of Professional Conduct.[1] *1245 After receipt of the settlement funds, the respondent provided D'Uva with $2,500 which was his portion of the settlement after the respondent made deductions for the respondent's fee and for payment of D'Uva's medical bills. The respondent did not provide D'Uva with a written statement showing how D'Uva's settlement was being disbursed, in violation of Article V, Rule 1.5(c) of the Supreme Court Rules of Professional Conduct.[2] The respondent failed to promptly pay the medical bills, failed to maintain the funds for payment of the medical bills in his account, and applied those funds for personal use, depleting the account, in violation of Rule 1.15(d)[3] and Article V, Rule 8.4(c) of the Supreme Court Rules of Professional Conduct[4]. When D'Uva became aware that the bills had not been paid he filed a complaint with the board. The respondent made payment on a portion of those outstanding bills, but at the time of the filing of the formal disciplinary charges $2,115 remained unpaid. The respondent paid or resolved the remaining bills shortly before the hearing held by the disciplinary board on May 18, 2011. At the disciplinary hearing the respondent acknowledged that the above-stated facts were true and admitted he had violated the cited disciplinary rules. He presented testimony that he has suffered from an addiction to both drugs and alcohol that affected his judgment. He made it clear that his testimony was offered in explanation of his conduct, but not as an excuse. The board concluded that the respondent's admitted conduct warranted a suspension from the practice of law for one year. The board has further recommended that this period of suspension run concurrently with a one-year suspension we imposed on the respondent on June 3, 2011, as reciprocal discipline for a suspension imposed by the state of Florida. In re Matter of Press, 19 A.3d 1232 (R.I.2011). The board has also recommended that, as a pre-condition to reinstatement, the respondent provide proof that he has maintained his sobriety. We agree with the board's recommendation. Professional discipline serves two functions; protection of the public and maintaining the integrity of the profession. In re Ciolli, 994 A.2d 81 (R.I.2010). We commend the respondent for seeking treatment. However, while his abuse of alcohol and drugs may explain his behavior, it is not an excuse. Therefore, professional discipline is appropriate. *1246 In similar cases where an attorney's commingling and conversion of funds has been linked to alcohol abuse or other addictions, and the attorney had repaid the funds prior to the disciplinary hearing, we have suspended the attorney from the practice of law for one year. In re Hellew, 828 A.2d 531 (R.I.2003); In re Brown, 735 A.2d 774 (R.I.1999). Furthermore, in Brown we indicated rehabilitation is a necessary prerequisite for reinstatement. Therefore, the board's recommendation for the respondent comports with prior sanctions we have imposed in like circumstances. Accordingly, it is hereby ordered, adjudged and decreed that the respondent, Marc B. Press, is suspended from the practice of law for one year. The effective date of this suspension is retroactive to June 3, 2011, and his period of suspension shall run concurrent with our previous order of suspension. At the conclusion of that period of suspension the respondent may apply for reinstatement to the practice of law. NOTES [1] Article V, Rule 1.15 of the Supreme Court Rules of Professional Conduct, entitled "Safekeeping property," provides, in relevant part: "(a) A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property." [2] Article V, Rule 1.5 of the Supreme Court Rules of Professional Conduct, entitled "Fees," provides, in pertinent part: "(c) * * * Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination." [3] Rule 1.15(d) provides in pertinent part: "Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property." [4] Article V, Rule 8.4 of the Supreme Court Rules of Professional Conduct, entitled "Misconduct," provides in relevant part: "It is professional misconduct for a lawyer to: * * * (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation * * *."

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2328018/

370 Pa. 562 (1952) McCracken Appeal. Supreme Court of Pennsylvania. Argued April 2, 1952. May 29, 1952. Before DREW, C.J., STEARNE, JONES, BELL, CHIDSEY and MUSMANNO, JJ. *563 Thomas E. Whitten, with him Charles I. Ziegler, for appellant. Harry "A." Kramer, with him Van der Voort, Royston, Robb & Leonard, for appellee. OPINION BY MR. JUSTICE MUSMANNO, May 29, 1952: At the general election held on November 6, 1951, Thomas H. McCracken qualified as candidate for the office of treasurer in the Township of Springdale, Allegheny County, on the Republican and Democratic tickets, he having won both nominations at the primaries in July of that year. Joseph Kratochvil, Jr., who was defeated for the Democratic nomination for that office in July, entered the November contest on stickers and received 313 votes. At the same election McCracken received 313 votes, plus one soldier vote, or a total of 314 votes. On one ballot (not of those just mentioned) a voter had written in with pencil the name "Joseph Kratochvil". Candidate Joseph Kratochvil, Jr., on November 28, 1951, petitioned Judges Walter Smart and John Drew of the Court of Common Pleas of Allegheny County, sitting as the County Board of Elections, to cumulate votes in his favor so that the one vote cast for Joseph Kratochvil, without the Jr., would be added to the votes cast for Joseph Kratochvil, Jr. It was asserted in behalf of the petitioner that on the disputed ballot the name Kratochvil went to the edge of the space provided for the write-in vote, thus urging the inference that the Jr. part of his name was omitted only because of the lack of space within which to write it. *564 The Elections Return Board, acting on this petition ordered a hearing and witnesses were heard. On December 21, 1951, the Return Board decided from the evidence brought before it that Joseph Kratochvil and Joseph Kratochvil, Jr., were one and the same person and accordingly ordered that the write-in vote for Joseph Kratochvil be cumulated in favor of Joseph Kratochvil, Jr., thus increasing his vote to 314 votes, being the same total number acquired by his opponent Thomas H. McCracken. On the same day, lots were cast because of the tie vote, and Joseph Kratochvil, Jr., won the toss. The County Board of Elections declared him the successful candidate and issued a certificate of election to him. Thomas H. McCracken then appealed to the Court of Common Pleas of Allegheny County and the court en banc (made up of three judges other than the two who sat on the Return Board) affirmed the decision of the Return Board. Mr. McCracken now appeals to this Court, contending the illegality of his opponent's election. We are satisfied from an examination of the record that the names Joseph Kratochvil and Joseph Kratochvil, Jr., appearing on the ballots in the election for treasurer of Springdale Township, November 6, 1951, identify one and the same individual. We are further satisfied that the opinion written by the distinguished Judge SARA SOFFEL for the court below correctly states the law applicable to the facts in the case. One of the duties of the County Board of Election, as spelled out in Section 302 of the Pennsylvania Election Code, Act of June 3, 1937, P.L. 1333, is to: ". . . receive from district election officers the returns of all primaries and elections, to canvass and compute the same, and to certify the results thereof to the Secretary of the Commonwealth, as may be provided by law, *565 and to such other authorities as may be provided by law." (italics supplied) Canvassing and computing necessarily embrace acts of discretion. This Court held in Boord et al. v. Maurer, 343 Pa. 309, 312, 22 A.2d 902, that: "The Election Code makes the County Board of Election more than a mere ministerial body. It clothes it with quasi-judicial functions, for Section 304 of the Code provides that `Each County Board of Election may make regulations, not inconsistent with this act or the laws of this Commonwealth to govern its public sessions, and may issue subpoenas, summon witnesses, compel production of books, papers, records and other evidence, and fix the time and place for hearing any matters relating to the administration and conduct of primaries and elections in the county under the provisions of this act.'" There could scarcely be a duty more apparent and impelling on an Election Board than that of ascertaining for whom votes were cast. In the computation of the vote, its functions are not limited to those of a humanized adding machine. The Board is not a multiple comptometer, making up as many lists as there are different spellings for what common sense and the obvious facts dictate are the same person. It is because the Board is charged with discretional responsibilities that it has been armed with authority and power to issue subpoenas, summon witnesses and take testimony. The County Election Board sets up the election machinery and presents the election returns to the general public. The needs of our democracy require accurate and rapid ascertainment of the people's will. And it is for that reason that the Legislature has entrusted the County Board of Elections with plenary powers in the administration of the election code. *566 The appellant maintains that the Election Board has no authority to cumulate write-in votes. To deny the Board that power is to deny it the very essence of its functions: the ascertainment of the winning candidates. In support of its position the appellant advances the case of Seim's Appeal, 316 Pa. 225, 174 A. 465. It is enough to say in this respect that Seim's Appeal was handed down three years before the Election Code of 1937 went into effect and therefore naturally bows to the superseding statutory authority. Even so, there is nothing in Seim's Appeal which prohibits a Return Board from cumulating votes. In any disputed election, nothing can be more vital towards the accomplishment of an honest and just selection than the ascertainment of the intention of the voter. What was the intention of the voter who wrote Joseph Kratochvil, instead of Joseph Kratochvil, Jr? Can anyone doubt that the voter wished to register his vote for Joseph Kratochvil, Jr.? And with that fact established, nothing should be permitted to change the effect of that intention so honestly manifested. ". . . where the voter's intention is found it should not be defeated by the fact that the name of the candidate is misspelled, the wrong initials employed, or some other or slightly different name of like or similar pronunciation has been written instead of that of the candidate actually intended to be voted for. . . . A ballot may be counted which contains a candidate's surname only, although there are other persons in the county having the same surname, it being shown that there was no other person of such name who was a candidate for the same or any other office; and so also if only the middle name of the candidate is wrong, or if the first name is abbreviated, or if the wrong initials are used." (9 R.C.L., page 1144) *567 At the oral argument, counsel for appellant indicated that one of the reasons motivating the appeal was the desire to obtain a definitive pronouncement from this Court on the question raised. While the language of the Election Code on the subject is, it seems to us, clear, it is asserted for the guidance of candidates and all concerned that the County Election Boards throughout the Commonwealth are empowered by the Pennsylvania Election Code of 1937, supra, to cumulate ballot write-in votes for any candidate, ascertained, through appropriate proceedings, to be entitled to them. Judgment affirmed.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/242703/

246 F.2d 173 CIVIL AERONAUTICS BOARD, Appellant,v.FRIEDKIN AERONAUTICS, Inc., d/b/a Pacific SouthwestAirlines, Appellee.CIVIL AERONAUTICS BOARD, Appellant,v.CALIFORNIA CENTRAL AIRLINES, Inc., Appellee. Nos. 14648, 14649. United States Court of Appeals Ninth Circuit. June 17, 1957. 1 Stanley N. Barnes, Asst. Atty. Gen., Daniel M. Friedman, Sp. Asst. to the Atty. Gen., Robert L. Griffith, Chief, Office of Compliance, John F. Wright, Compliance, Atty., Franklin M. Stone, Gen. Counsel, John H. Wanner, Associate Gen. Counsel, O. D. Ozment, Chief, Litigation & Research Division, Robert L. Park, Atty., Civil Aeronautics Board, Washington, D.C., Laughlin E. Waters, U.S. Atty., Los Angeles, Cal., for appellant. 2 Lewis T. Gardiner Meserve, Mumper & Hughes, Los Angeles, Cal., for appellee Friedkin Aeronautics, Inc. 3 Alfred C. Ackerson, Quittner & Stutman, Los Angeles, Cal., Perry H. Taft, Atherton, Cal., for appellee, California Central Airlines, Inc. 4 Before HEALY and FEE, Circuit Judges, and WALSH, District Judge. 5 WALSH, District Judge. 6 Appellant filed in the court below separate complaints against appellees charging that, in violation of Section 401(a) of the Civil Aeronautics Act of 1938, as amended,1 appellees had engaged in interstate air transportation2 without a certificate of public convenience and necessity. In each complaint, Section 1007 of the Act3 was invoked as authorizing both temporary and permanent injunctions against the claimed unauthorized operations of appellees. Appellees filed their respective answers to the complaints, and a consolidated hearing then was held on appellant's applications in each case for preliminary injunctions. After appellant had completed the presentation of its evidence, each appellee orally moved to dismiss the complaint against it. The trial court took the cases under submission and thereafter held that appellees were not engaged in interstate air transportation, granted the motions to dismiss, and entered judgments denying the applications for preliminary injunctions and dismissing the complaints. The appeals to this court followed. 7 The evidence introduced by appellant showed that appellees are common carriers whose aircraft operate solely between points in the state of California, principally San Diego, Burbank and San Francisco; that neither of the appellees has a certificate of convenience and necessity required by Section 401(a)4 as a condition precedent to engaging in interstate air transportation; and that, in addition to transporting passengers whose entire journeys are accomplished between points in California, appellees also carry passengers moving to and from out-of-state points who use appellees' services as a part of their continuous journey. With regard to this last mentioned class of passengers, considerable evidence, both oral and documentary, was directed by appellant toward portraying in detail how some of them arrived aboard and were carried by appellees' aircraft, e.g., how and by whom their reservations were made, from whom they received their tickets and to whom they made payment therefor, the kind of tickets delivered to them, how they transferred between appellees' aircraft and those of other carriers, the manner in which their luggage was checked and how it was transferred between aircraft, etc. 8 No findings of fact were made below in either case but the trial judge filed a memorandum opinion in the Pacific Southwest case (No. 14648)5 wherein he found 'that defendant was not engaged in interstate air transportation and, consequently, the Court is without jurisdiction, and this action must be dismissed (Rule 12, Federal Rules of Civil Procedure, 28 U.S.C.A.); and such is the order.'6 It is plain from the memorandum opinion that the trial court considered as determinative of the cases the fact that appellees' aircraft did not depart the state of California. The ruling was, in essence, that since appellees' aircraft do not cross state lines, appellees cannot be engaged 'in commerce between * * * a place in any State * * * and a place in any other State * * *.' In our view the cases cannot be solved so simply. 9 There was evidence in the cases which would have supported findings by the trial court: That certain transcontinental 'nonscheduled' air carriers operating between California and points such as Dallas, Kansas City, Chicago, and New York City, utilize appellees' services in transporting some of their passengers between points in California served by appellees; that with respect to some passengers carried by the transcontinental carriers from points east of California, the transcontinental carriers or their agents sell and deliver to each passenger a single ticket for passage from the point of origin to his point of ultimate destination in California, such as Oakland or San Diego, notwithstanding the fact that the particular aircraft of the transcontinental carrier for which the ticket is sold will not proceed beyond Burbank, California; that such passengers pay a single, unapportioned fare to the transcontinental carriers or their agents; that arrangements are made between the transcontinental carriers and appellees for the carriage of such passengers beyond Burbank (to Oakland or San Diego, for example) on appellees' aircraft; that such passengers make no fare payments to appellees and usually do not even see the tickets which appellees issue for the transportation beyond Burbank; and that the transcontinental carrier makes payment for the cost of the intra-California transportation upon billings from appellees.7 10 The trial judge could have found as facts with regard to appellees' operations the matters which we have just outlined; and, had he done so, then he would have had presented the questions of whether or not he should find, further, that appellees were engaged in interstate commerce under arrangements with the transcontinental carriers for the carriage of passengers on through routes and under joint rates from points outside California to the California points served by appellees, and whether or not United States v. Capital Transit Company, 325 U.S. 357, 363, 65 S. Ct. 1176, 89 L. Ed. 1663, 1669, required a holding that appellees were engaged in interstate air transportation. 11 Appellees contend that the evidence shows their relationship to the interstate transit of the passengers involved to be only casual and incidental; that, at most, the evidence shows only some instances of the simultaneous reservation of space and sale of tickets on the aircraft of both the transcontinental carriers and appellees by ticket agencies, plus some instances when the ticket agents or appellees' own personnel knew that passengers on appellees' lines had theretofore embarked or would thereafter embark upon an interstate flight via another carrier. If appellees were correct in this estimate of the evidence, then probably it would not be possible to hold that appellees were engaged in interstate air transportation. United States v. Yellow Cab Company, 332 U.S. 218, 230, 67 S. Ct. 1560, 91 L. Ed. 2010, 2020. Cf. Cederblade v. Parmelee Transportation Company, D.C.N.D.Ill., 94 F. Supp. 965; Mateo v. Auto Rental Company, Ltd., 9 Cir., 240 F.2d 831. But, as we have shown above, the evidence would support findings beyond those which appellees would concede. 12 Since the judgments of dismissal were entered at the conclusion of appellant's evidence and properly could have been based only upon the merits rather than lack of jurisdiction, the trial court was required to make complete findings of fact and conclusions of law.8 We desire to emphasize the point that it is not our purpose in what we have said above to intimate what findings of fact the trial court should have made but, rather, to show what findings he could have made from the evidence. The making of findings is not our business but that of the trial court, just as would be the exercise of discretion regarding the grant or denial of the preliminary injunction if, instead of dismissing for lack of jurisdiction, the trial judge had reached a point on the merits where it was necessary for him to determine whether or not to issue such an injunction. 13 The judgments are reversed and the cases are remanded for further proceedings not inconsistent herewith. 1 49 U.S.C.A. § 481 which, in so far as it is material here, reads: '(a) No air carrier shall engage in any air transportation unless there is in force a certificate issued by the Board authorizing such air carrier to engage in such transportation * * *.' 2 'Interstate air transportation' and other terms which are important in the case are defined in Section 1 of the Act, 49 U.S.C.A. § 401. The section reads, in part: 'As used in this chapter, unless the context otherwise requires-- '(3) 'Air commerce' means interstate, overseas, or foreign air commerce or the transportation of mail by aircraft or any operation or navigation of aircraft within the limits of any civil airway or any operation or navigation of aircraft which directly affects, or which may endanger safety in, interstate, overseas, or foreign air commerce. '(10) 'Air transportation' means interstate, overseas, or foreign air transportation or the transportation of mail by aircraft. '(20) 'Interstate air commerce', 'overseas air commerce', and 'foreign air commerce', respectively, mean the carriage by aircraft of persons or property for compensation or hire, or the carriage of mail by aircraft, or the operation or navigation of aircraft in the conduct or furtherance of a business or vocation, in commerce between, respectively-- '(a) a place in any State of the United States, or the District of Columbia, and a place in any other State of the United States, or the District of Columbia; or between places in the same State of the United States through the air space over any place outside thereof; or between places in the same Territory or possession of the United States, or the District of Columbia; '(b) a place in any State of the United States, or the District of Columbia, and any place in a Territory or possession of the United States; or between a place in a Territory or possession of the United States, and a place in any other Territory or possession of the United States; and '(c) a place in the United States and any place outside thereof, whether such commerce moves wholly by aircraft or partly by aircraft and partly by other forms of transportation. '(21) 'Interstate air transportation', 'overseas air transportation', and 'foreign air transportation', respectively, mean the carriage by aircraft of persons or property as a common carrier for compensation or hire or the carriage of mail by aircraft, in commerce between, respectively-- '(a) a place in any State of the United States, or the District of Columbia, and a place in any other State of the United States, or the District of Columbia; or between places in the same State of the United States through the air space over any place outside thereof; or between places in the same Territory or possession of the United States, or the District of Columbia; '(b) a place in any State of the United States, or the District of Columbia, and any place in a Territory or possession of the United States; or between a place in a Territory or possession of the United States, and a place in any other Territory or possession of the United States; and '(c) a place in the United States and any place outside thereof, whether such commerce moves wholly by aircraft or partly by aircraft and partly by other forms of transportation.' 3 49 U.S.C.A. § 647(a) which, in so far as it is material here, reads: '(a) If any person violates any provision of this chapter, or any rule, regulation, requirement, or order thereunder, or any term, condition, or limitation of any certificate or permit issued under this chapter, the Board, its duly authorized agent, or, in the case of a violation of section 481(a) of this title, any party in interest, may apply to the district court of the United States, for any district wherein such person carries on his business or wherein the violation occurred, for the enforcement of said provision, or of such rule, regulation, requirement, order, term, condition, or limitation; and such court shall have jurisdiction to enforce obedience thereto by a writ of injunction or other process, mandatory or otherwise, restraining such person, his officers, agents, employees, and representatives, from further violation of said provision or of such rule, regulation, requirement, order, term, condition, or limitation, and enjoining upon them obedience thereto.' 4 See footnote 1 5 Contemporaneously, by order entered in the California Central case (No. 14649) the memorandum opinion was adopted therein 6 There is error in the grounds upon which the orders of dismissal were based. Even if the court below were correct in holding as a matter of law that the defendants were not engaged in interstate air transportation, the dismissals would have to be on the merits and not for lack of jurisdiction. The court had jurisdiction over the subject matter of the actions (49 U.S.C.A. § 647, footnote 3, supra) and jurisdiction over the persons of the parties to the actions. The court had the power to entertain the suits, to consider the various elements which entered into or qualified appellant's right to the relief sought, and to render a binding decision thereon. There was no lack of jurisdiction. General Investment Company v. New York Central Railroad Company, 271 U.S. 228, 230, 46 S. Ct. 496, 70 L. Ed. 920, 921 7 There was evidence to the effect that procedures on eastbound flights are similar but not identical. For example, on flights where the aircraft of the transcontinental carrier departs from Burbank, passengers leaving at San Francisco, Oakland or San Diego for Burbank on appellees' aircraft pay to the transcontinental carrier or its agent a single fare from point of origin to point of ultimate destination; but the passengers are issued two tickets, one for passage on appellees' aircraft to Burbank and the other for onward transportation from Burbank via the transcontinental carrier to the point of ultimate destination outside California 8 Rule 41(b), Rules of Civil Procedure: 'For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him. After the plaintiff has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. In an action tried by the court without a jury the court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a). Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue, operates as an adjudication upon the merits.' Rule 52(a), Rules of Civil Procedure: 'In all actions tried upon the facts without a jury or with an advisory jury. the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment; and in granting or refusing interlocutory injunctions the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action. Requests for findings are not necessary for purposes of review. 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. The findings of a master, to the extent that the court adopts them, shall be considered as the findings of the court. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein. Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41(b).'

01-03-2023

08-23-2011

https://www.courtlistener.com/api/rest/v3/opinions/2319082/

27 A.3d 628 (2011) 162 N.H. 285 In the Matter of Erica TAPPLY and Benjamin Zukatis. No. 2010-263. Supreme Court of New Hampshire. Argued: April 7, 2010. Opinion Issued: August 11, 2011. *630 Katherine B. Stearns, of Andover, by brief and orally, for the petitioner. Wilson, Bush, Durkin, & Keefe, P.C., of Nashua (Timothy E. Bush on the brief and orally), for the respondent. *631 DUGGAN, J. The petitioner, Erica Tapply, appeals an order of the Trial Court (Lynn, C.J.) denying her motion for judicial disqualification. The sole issue on appeal is whether the trial judge, who presided over this prolonged, contentious dispute concerning the parenting rights of the respondent, Benjamin Zukatis, erred by not granting Tapply's repeated requests to recuse himself. We affirm. We begin with a recitation of the facts taken from hearing transcripts and court orders. In June 2003, Tapply and Zukatis met in Hudson and began dating. Tapply became pregnant shortly after the relationship began and their son, Z.Z., was born in 2004. Z.Z. is a special needs student with Pervasive Developmental Disorder, an autism spectrum condition, and Attention Deficit Hyperactivity Disorder. Tapply was aware that in 2000, Zukatis had pleaded guilty to charges of aggravated felonious sexual assault in New Hampshire, and kidnapping, indecent assault and battery, assault and battery, and unauthorized use of a motor vehicle in Massachusetts. He served eight months in jail and also received a deferred sentence and probation. He was ordered to enter a substance abuse treatment program, to continue in counseling, and was prohibited from having any contact with the victim, who at the time was his girlfriend. Zukatis was also required to register as a sex offender in Massachusetts. Tapply and Zukatis dated on and off until 2005 when they ended their relationship. On July 8, 2005, Tapply filed a domestic violence petition against Zukatis and obtained a temporary restraining order preventing Zukatis from having contact with her or Z.Z. The basis for her petition was that on July 7, 2005, Tapply brought Z.Z. to his pediatrician, informed the doctor that Zukatis was a convicted sex offender, and reported her concern that six to nine months earlier, Z.Z. had experienced redness around his penis that may have been indicative of sexual abuse by Zukatis. The pediatrician reported Tapply's allegations to the New Hampshire Division for Children, Youth & Families (DCYF), but did not make a determination of sexual assault. DCYF "screened out," or dismissed, the complaint because the pediatrician had found no evidence of abuse. Following a final hearing, the Merrimack District Court (Kinghorn, J.) denied the domestic violence petition. Also on July 7, 2005, Tapply went to the Merrimack Police Department to express her concerns that Zukatis may have molested Z.Z. The police interviewed Tapply, her father, Z.Z.'s pediatrician, and Zukatis, but closed the investigation in August 2005 without taking any further action. In August 2005, Tapply filed a petition for custody and support, which is the underlying action in this case. Following a hearing, the Trial Court (Hampsey, J.) appointed a Guardian Ad Litem (GAL) and entered a temporary order awarding Tapply sole decision-making and residential responsibility for Z.Z. and prohibiting Zukatis from having any parenting time pending a report from the GAL. After receiving the GAL's preliminary report, the court approved a stipulation proposed by the GAL that Zukatis be evaluated by a forensic psychologist and then be allowed one hour of supervised parenting time per week. The psychologist's report indicated that neither Zukatis's probation officer nor his counselor believed that he posed any threat to Z.Z. and that Zukatis "appeared to be making progress in dealing with his issues." Following a series of tests, the psychologist recommended that Zukatis be limited to having supervised visits with Z.Z., that such visits should continue for at least one year, and that the court should *632 obtain input from the visitation supervisor and Zukatis's and Z.Z.'s therapists before expanding Zukatis's visitation rights. In October 2006, Zukatis began weekly supervised visits with Z.Z., which continued through March 2008. Judge Lynn found that Zukatis interacted appropriately with Z.Z. during these visits and that Z.Z. never showed any signs of reluctance when with Zukatis. During this period of weekly visits, Judge Lynn granted Zukatis's motion allowing him to give Z.Z. a toy truck as a Christmas gift. The truck was delivered to Tapply but she never gave it to Z.Z. because she felt it was "a presence of [Zukatis] at [her] house and that's too upsetting." Tapply contended that she never gave Z.Z. the truck because she was following the policy of the Greater Nashua Supervised Visitation Center and that Zukatis could not usurp the Visitation Center rules by obtaining a court order. Judge Lynn later admonished Tapply for disregarding an order of the court. In October 2007, Tapply filed a "Motion to Continue Trial and to Temporarily Suspend Parenting Time for Medical Purposes." Tapply alleged that Z.Z. was having speech and behavioral issues that became worse after he spent time with Zukatis. Tapply proposed an eight-to-twelve week suspension of supervised visits to determine whether Zukatis was the cause of Z.Z.'s regression. The GAL supported Tapply's motion and the Trial Court (Groff, J.) agreed to postpone the trial and schedule an evidentiary hearing on the request to suspend visitation. In January 2008, Judge Lynn held an evidentiary hearing, but by that time Tapply no longer sought to suspend the visits. Instead, she requested that a trained therapist monitor the supervised visits to determine whether they were causing harm to Z.Z. Judge Lynn denied the relief requested and ordered that Zukatis's parenting time with Z.Z. be gradually expanded and that the visits be supervised by one of Zukatis's parents. Beginning in March 2008, Zukatis had parenting time with Z.Z. that was supervised by one or both of Zukatis's parents. After the first two visits, Tapply refused to bring Z.Z. for a third visit, later indicating to the Visitation Center Coordinator that Z.Z. had had an anxiety attack on his way to the visit. Zukatis filed a motion for contempt and, following a hearing, Judge Lynn concluded that Tapply had "no justifiable excuse for failing to produce [Z.Z.] for his scheduled visit with [Zukatis]." Judge Lynn found that Z.Z. appeared to enjoy the time he spent with Zukatis and his paternal grandparents. On May 7, 2008, at Tapply's urging, Z.Z.'s speech therapist contacted DCYF to report her concerns that Z.Z. was having "unsupervised" visits with a "level 2 sex offender" with "a history of mental illness" and who "was suspected of abusing [Z.Z.] at age 1." Judge Lynn later noted that it was clear from the therapist's report that she was relying upon information provided by Tapply. On the same date, Tapply also made a complaint to DCYF with concerns that Zukatis had abused Z.Z. DCYF initially concluded that there was insufficient information to open an investigation into these allegations of abuse. However, after Tapply complained to DCYF headquarters in Concord, the agency reopened the case. On June 17, 2008, following a mid-week visit with Zukatis, Tapply noticed that Z.Z.'s anal area was red and irritated. When Tapply asked Z.Z. what happened, he allegedly said, "I'm not telling." Tapply took a photograph of the area. Tapply brought Z.Z. to the hospital the next day and informed the doctor that she had noticed a similar rash on two other occasions *633 and believed that Zukatis had molested Z.Z. Z.Z. denied any abuse or trauma to the doctor and the medical findings were inconclusive for abuse. Tapply also reported the incident to the Merrimack, Nashua, and Lowell Police Departments and to DCYF. Tapply had Z.Z. examined again at Southern New Hampshire Medical Center, but again there was no finding that the irritation was indicative of abuse. Tapply had Z.Z. examined for a third time at Dartmouth-Hitchcock Medical Center in Nashua, and again the exam was inconclusive for abuse; however, the examining doctor expressed concern at Z.Z.'s silence when asked if "his bum or his pee-pee were hurting." Tapply also reported the June 17 incident to the GAL. The GAL filed an ex parte motion to suspend Zukatis's parenting time with Z.Z. The motion was granted, but, after a further hearing, the Trial Court (Nicolosi, J.) reinstated supervised visits between Zukatis and Z.Z. at the Nashua Visitation Center. Z.Z. was then interviewed at the Child Advocacy Center (CAC) and made no disclosures of abuse. Upon the recommendation of DCYF, Z.Z. began treatment with a licensed mental health counselor, Michelle Boutin. Boutin met with Z.Z. in August 2008 after being provided with background information by Tapply concerning herself, Zukatis, and Z.Z. Boutin acknowledged that from the beginning of her counseling and continuing through November 2008, the entire purpose of her seeing Z.Z. "was to help him feel comfortable to express himself so that he would be encouraged to make a disclosure of the sexual abuse to which he had been subjected by [Zukatis]." Judge Lynn later found that it was clear from Boutin's testimony and reports that her treatment regimen proceeded on the assumption that Z.Z. had in fact been abused by his father and that her task was to get Z.Z. to acknowledge this fact. Judge Lynn concluded that Boutin gave no serious consideration to the possibility that the information she received from Tapply might have been inaccurate or biased, or that Zukatis had not actually abused Z.Z. Judge Lynn acknowledged that Boutin offered testimony that on several occasions, in response to questions, Z.Z. made negative statements about Zukatis. Judge Lynn weighed these statements against the other evidence, including consistent third-party observations of positive interactions between Z.Z. and Zukatis, Boutin's reports on Z.Z.'s improving behavior, and the testimony of Zukatis and his father, and found that any negative comments from Z.Z. did not reflect his actual feelings toward his father and were not probative of abuse by Zukatis. Tapply next alleged that on August 26, 2008, while watching television, Z.Z. said, "penis on your bum." Tapply asked him if "someone put a penis on [his] bum" and he said "yes." Tapply asked Z.Z. to "draw a picture of who put a penis on his bum" and Z.Z. drew a stick figure that appeared to have a penis. Tapply asked who the picture was of and Z.Z. stated, "daddy." Tapply asked if "daddy put a penis on your bum," and Z.Z. said, "yes, he put it in my bum, he put it in my mouth, he spit it at me." Z.Z. never repeated these allegations to a third party and Judge Lynn later found that Tapply's testimony was not credible on this point. Judge Lynn was not persuaded that Z.Z. made the statements at all or "that if he did so, [that] the statements (and the picture) reflect reality." Tapply reported the August 26 disclosures to Boutin and DCYF, and urged DCYF to continue its investigation and to schedule a second interview with Z.Z. at the CAC. DCYF declined to conduct a second interview because Z.Z. was already *634 being seen regularly by Boutin. In November 2008, DCYF again closed its investigation of Zukatis with a determination that Tapply's allegations of abuse were unfounded. On January 13, 2009, Tapply filed a motion to recuse Judge Lynn from the case. Tapply argued that Judge Lynn had noted in his January 5, 2009 order that there was "cause to view [Tapply]'s latest allegations against [Zukatis] critically," and that during the status conference in December 2008, he stated that he was "skeptical" of Tapply. Tapply felt that these statements demonstrated a bias against her. Judge Lynn subsequently denied the motion. At the final hearing on the custody and support petition held in March 2009, Zukatis testified that he had never abused Z.Z. and that he had no sexual desire for, or interest in, young boys. Both Zukatis and his father testified that during every visit with Z.Z., at least one of Zukatis's parents was present throughout the visit. Zukatis testified that Z.Z. never took his clothes off during the visits and never said anything referring to "bums" or "butts." In regard to Z.Z.'s visit on June 17, 2008, Zukatis testified that he took Z.Z. to his apartment in Lowell and that at least one of his parents was present throughout the visit. He also testified that Z.Z. "did not have a bowel movement during the visit" and "had no occasion to take down his pants." In the final order on the petition for custody and support, issued in May 2009, Judge Lynn considered all rationales offered by the GAL and Michelle Boutin for suspending the visits between Z.Z. and Zukatis and ultimately concluded that it was in Z.Z.'s best interest to be restored to a normal relationship with Zukatis as soon as possible. Judge Lynn entered a six-month parenting plan and scheduled a review hearing, after which the court would enter a long-term parenting plan. He concluded that under the temporary six-month parenting plan, it would be best not to grant joint decision-making responsibility or unsupervised visits to Zukatis. Under the plan, Zukatis's visits would gradually expand until, for the final ninety days, he would have visits on both Saturday and Sunday every other weekend. The order also required one of Zukatis's parents to be present for all visits. The order required Zukatis to continue to attend counseling and Tapply to see a qualified mental health counselor to deal with her anger toward Zukatis and with the fact that she must share parenting responsibilities. Judge Lynn ordered Z.Z. to see a new counselor in order to give a "fresh start" with a counselor with unbiased views of the parties. Following the May 2009 order of the court, Z.Z. began meeting with a new counselor, Rebecca Partridge. Partridge indicated that on September 3, 2009, Z.Z. said, "daddy hit me." Partridge reported this to DCYF, but the agency did not take any action and Partridge did not recommend that the court take any action as a result of the statement. Judge Lynn found that whatever the basis for Z.Z.'s statement, it was not indicative of any inappropriate conduct by Zukatis. Partridge noted that during her next session with Z.Z., he said that Zukatis was his "best friend." On September 4, 2009, Tapply filed a grievance with the Judicial Conduct Committee (JCC) alleging bias and prejudice against her by Judge Lynn; that Judge Lynn failed to recuse himself from the case following Tapply's motion to recuse; that Judge Lynn "committed multiple instances of erroneous and/or egregious legal error . . . which demonstrates he has not maintained professional competence in the law"; that Judge Lynn denied her the *635 "basic and fundamental right to be fully heard according to the law"; that Judge Lynn showed disrespect toward her and others involved in the case; and that Judge Lynn failed to assure a prompt, efficient, or fair disposition of the matter or assure proper performance of himself and those under his supervision. On September 23, 2009, following a mid-week visit with Zukatis, Tapply found Z.Z. curled up in a fetal position in the bathroom. Z.Z. had some redness around his anus. Tapply alleged that Z.Z. stated, "Daddy is the boss." Tapply contacted her attorney, took a photograph of Z.Z.'s anus, and brought him to the hospital. The hospital made a finding that Z.Z.'s anus was "minimally erythematous," meaning "abnormal redness of the skin due to capillary congestion (as in inflammation)," Webster's Third New International Dictionary 773 (unabridged ed. 2002), and diagnosed Z.Z. with an "alleged sexual assault." Later that evening Tapply spoke with a Nashua police officer who had been dispatched to the hospital. The officer's report indicates that Tapply told the officer that she believed Z.Z. had been sexually assaulted by Zukatis, but at a later hearing Tapply denied telling the officer this. On September 25, 2009, Tapply filed an ex parte motion to suspend Zukatis's parenting time based upon the alleged incident of sexual assault. The Trial Court (Barry, J.) granted the petition and scheduled a hearing. Judge Lynn presided at the hearing. At the beginning of the hearing, Tapply made an oral motion to recuse Judge Lynn, which he denied. Judge Lynn heard testimony from Tapply, a DCYF case worker, and Zukatis's mother. The DCYF case worker testified that DCYF had opened an investigation based upon Tapply's allegations involving the September 23 incident and stated that they had scheduled another interview with Z.Z. at the CAC. Zukatis's mother testified that she and her husband were present for the entire visit with Z.Z. on September 23, that Z.Z. and Zukatis were never alone, and that Zukatis did not abuse Z.Z. or engage in any inappropriate conduct during the visit. She also produced a packet of time and activity logs, which she had begun keeping during Zukatis's parenting time with Z.Z. in order to guard against Tapply's accusations of abuse. At the conclusion of the hearing, Judge Lynn found that there was "no credible evidence" that Zukatis had abused Z.Z. on September 23 and that Tapply had acted "unreasonably" in lodging her allegations of abuse without making any serious effort to speak with Zukatis's parents before doing so. Judge Lynn vacated the ex parte order of September 25 and reinstated Zukatis's parenting time along with an extra weekend to make up for a missed visit. On October 6, 2009, Tapply filed a motion seeking to disqualify Judge Lynn and have his final order vacated. She argued that at the September 29, 2009 hearing, Judge Lynn went on "a judicial tirade" and that his impartiality could be reasonably questioned in the case, requiring disqualification. Judge Lynn denied the motion on October 26, 2009. On October 6, Tapply filed a second grievance with the JCC, renewing her earlier complaints against Judge Lynn and supplementing her prior grievance with additional allegations of misconduct. On the same day, Tapply's attorney also filed a grievance against Judge Lynn with the JCC. The grievance also charged that Judge Lynn engaged in a "tirade" and that he "did NOT listen to any of the evidence and decided before hand [sic] that [Tapply] is a horrible person for bringing her son to the hospital." Tapply's attorney also alleged that Judge Lynn was colluding *636 with Zukatis's attorney, which, she concluded "could be as simple as a complete and total disregard of women." She further alleged that Judge Lynn did not maintain professional competence in the law, that he was not patient, dignified, and courteous to Tapply, and that he demonstrated bias and prejudice against Tapply. On October 25, 2009, Tapply again brought Z.Z. to the emergency room with a complaint of possible child abuse. The basis for the complaint was again redness around Z.Z.'s anus and redness on his inner thigh with several puncture-type lesions that she had discovered four days earlier. Z.Z. did not say anything to indicate that any abuse caused the redness. The hospital made a clinical finding of "suspected child abuse," which Judge Lynn found was based upon Tapply's assertion to hospital staff that "there is an established history of similar problems in past visitations [with Zukatis]." The hospital notified the Merrimack, Nashua and Lowell police departments, but none of the law enforcement agencies took any action against Zukatis. On October 26, Tapply took Z.Z. to see Dr. Liliane Sznycer, who performs examinations for the hospital. Her office note indicates that she was "unable to differentiate from insect bites versus inflicted puncture or injury wounds" and that Z.Z. had "very mild perianal erythema which is entirely nonspecific and does not rule out the possibility of sexual molestation." The JCC met on November 13, 2009, and voted to dismiss the two grievances filed by Tapply and the grievance filed by Tapply's lawyer. The JCC found that the grievances related to rulings of the court "otherwise subject to appeal" and, thus, were beyond its jurisdiction. Following the dismissal of the grievances, the JCC sent Judge Lynn a letter expressing concern with the "strident tone taken by the Court in questioning Ms. Tapply and in issuing its final conclusions, as well as entering into a debate with [Tapply's attorney] after the conclusion of the hearing." On December 8, 2009, Tapply's attorney wrote to the JCC requesting that it reconsider its decision to dismiss the grievances. The JCC decided to allow Judge Lynn to respond to the attorney's letter. The JCC noted that it was only concerned with Judge Lynn's demeanor at the September 29, 2009 hearing and that it had already determined that all other matters were rulings of the court. On January 26, 2010, Judge Lynn issued an order following a review hearing on the case and found that Zukatis "at all times conducted himself properly and appropriately during his parenting time with [Z.Z.], and that the time [Zukatis and Z.Z.] have spent together has been beneficial to both individuals." Judge Lynn ordered Zukatis's parenting time to be increased, granted both parents joint decision-making responsibility, allowed Z.Z. to have overnight visits with Zukatis, and ruled that it was no longer necessary to require Zukatis's parents to supervise the visits. The order also awarded Zukatis attorney's fees for the September 29, 2009 ex parte hearing involving Tapply's accusations of sexual assault by Zukatis against Z.Z. On January 26, 2010, Tapply's attorney filed another grievance with the JCC, alleging that in the wake of the "letter of caution" issued by the JCC, Judge Lynn should have recused himself due to the "appearance of impartiality," and that he failed to disclose to all parties the letter of caution and his correspondence with the JCC. On February 5, 2010, Tapply's attorney filed another grievance with the JCC, raising concerns about alleged ex parte communications involving Judge Lynn regarding the orders in the case. *637 On February 8, 2010, Judge Lynn responded to the JCC regarding the allegations made by Tapply and her attorney. He denied that he engaged in a "judicial tirade" or that he "yelled and screamed" during the September 29, 2009 hearing. Judge Lynn acknowledged to the JCC that he spoke in a stern tone when making his findings because he felt it necessary to "admonish Ms. Tapply for what [he] found to be clearly unreasonable behavior on her part." He also pointed the JCC to allegations by Tapply's attorney that there was collusion between himself and Zukatis's attorney and that the supreme court had declined to accept Tapply's appeal "due to political pressures among the judiciary," as evidence that her characterization of the hearing may not have been completely accurate. At its meeting on February 12, 2010, the JCC "decided not to further clarify, reconsider, or otherwise take any further action" with respect to the grievances filed by Tapply and her attorney. On March 31, 2010, Tapply's attorney amended her last grievance and added two alleged violations relating to the ex parte communications. The JCC dismissed her final grievance on April 9, 2010, finding no judicial misconduct. On February 7, 2010, Tapply filed a motion for "judicial disqualification," again claiming bias on the part of Judge Lynn and raising concerns about alleged ex parte communications. The court denied the motion in a lengthy order. This appeal followed. I Tapply first argues that Judge Lynn should have granted her motion to recuse or disqualify himself because his impartiality could reasonably be questioned. Tapply points to four instances that she alleges raise questions of Judge Lynn's impartiality: (1) that he received a "letter of caution" from the Judicial Conduct Committee; (2) that he had several ex parte communications without disclosing them to the parties; (3) that his decisions in the case and his letter to the Judicial Conduct Committee evince a personal hostility toward Tapply and her attorney; and (4) that several news media outlets reported on the "letter of caution" that Judge Lynn received. "It is the right of every citizen to be tried by judges as impartial as the lot of humanity will admit." N.H. CONST. pt. I, art. 35. The New Hampshire Code of Judicial Conduct requires a judge to disqualify himself or herself in a proceeding in which his impartiality might reasonably be questioned, including, but not limited to instances where "the judge has a personal bias or prejudice concerning a party or a party's lawyer." Sup.Ct. R. 38, Canon 3E(1)(a) (amended 2011). "The party claiming bias must show the existence of bias, the likelihood of bias, or an appearance of such bias that the judge is unable to hold the balance between vindicating the interests of the court and the interests of a party." State v. Hall, 152 N.H. 374, 377, 877 A.2d 222 (2005). "The test for the appearance of partiality is an objective one, that is, whether an objective, disinterested observer, fully informed of the facts, would entertain significant doubt that justice would be done in the case." Miller v. Blackden, 154 N.H. 448, 456, 913 A.2d 742 (2006) (quotation omitted). "Judicial rulings alone almost never constitute a valid basis for a bias or partiality motion." State v. Bader, 148 N.H. 265, 271, 808 A.2d 12 (2002) (quotation and brackets omitted). "Opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of *638 prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible." Id. (quotation and brackets omitted). "Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge." Id. (quotation omitted). Tapply argues that Judge Lynn's impartiality could reasonably be questioned when he received a "letter of caution" from the Judicial Conduct Committee. The letter dismissed the grievances against Judge Lynn filed by Tapply and her lawyer, but expressed concern "with the rather strident tone taken by the Court in questioning Ms. Tapply and in issuing its final conclusions, as well as entering into a debate with [Tapply's attorney] after the conclusion of the hearing." The committee said that "a temperate response is more in keeping with expected judicial demeanor in the courtroom." Zukatis argues that the JCC had no authority to issue the letter of caution and that we should not consider it. Supreme Court Rule 40 provides the procedural rules for the JCC in dealing with a grievance filed against a judge. If the JCC finds that a grievance meets certain requirements, the grievance is to be docketed as a complaint. See Sup.Ct. R. 40(5)(c). If a grievance relates to a judge's findings, rulings, or decision, which, in effect, is a substitute for an appeal, it cannot be considered by the JCC. Sup.Ct. R. 40(5)(c)(1)(a). If the JCC dockets the grievance as a complaint, the judge is given notice of the complaint, given an opportunity to respond to the complaint, and, upon a finding of probable cause to warrant formal proceedings and the preparation of a formal statement of charges, provided with a formal hearing. Sup.Ct. R. 40(7), (8), (9), (11). If the committee then determines that there has been no violation of the Code of Judicial Conduct, the proceeding shall be dismissed, with or without a warning. See Sup.Ct. R. 40(12)(b). If the committee determines that there is a violation of the Code of Judicial Conduct but not of a sufficiently serious nature to warrant formal discipline by the supreme court, the JCC may dispose of the matter through informal resolution, which may include admonishing the judge, issuing a reprimand, requiring corrective action, or other similar remedial action. Sup.Ct. R. 40(12)(c). Here, the JCC determined that the grievances filed by Tapply and her attorney related to "ruling(s) of the Court otherwise subject to appeal," and, thus, could not be considered by the committee. See Sup.Ct. R. 40(5)(c)(1)(a). The JCC never docketed any of the grievances as a complaint. While this should have concluded the matter, the JCC admonished Judge Lynn in its letter dismissing the grievances. This was beyond the authority of the committee. The procedures provided by Rule 40 clearly establish that a grievance must be docketed as a complaint prior to the JCC taking any action against a judge, whether it be disciplinary or non-disciplinary, as in the case of the warning issued in the letter from the JCC. See Sup.Ct. R. 40(2) (defining a "warning" as "[n]on-disciplinary action taken by the committee when it is believed that a judge acted in a manner which involved behavior requiring attention although not constituting clear violation of the Code of Judicial Conduct warranting disciplinary action"). Because the grievance was dismissed and not docketed as a complaint, the JCC lacked the authority to issue the "letter of caution" to Judge Lynn. *639 Even were we to find that the JCC had the authority to issue a letter of caution, we do not find that the letter required recusal. While the letter may have expressed concern over the tone used by Judge Lynn, the letter expressed no concerns as to his partiality. Because judicial remarks that are "critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge," Bader, 148 N.H. at 271, 808 A.2d 12 (quotation omitted), we do not find that the letter of caution, without more than a concern over the judge's tone, would cause an objective, disinterested observer, fully informed of the facts, to entertain significant doubt that justice would be done in the case. See Blackden, 154 N.H. at 456, 913 A.2d 742. Tapply next argues that Judge Lynn's impartiality could reasonably be questioned because he "had several ex parte communications without disclosing such to the tribunal." Tapply's brief and argument make clear that her concern centers around the written communications between Judge Lynn and the JCC. Tapply argues that when the parties appeared for a review hearing on January 12, 2010, Judge Lynn had an obligation to inform the parties that grievances had been filed against him, that he had received a letter of caution from the JCC, and that he intended to respond to the JCC regarding the allegations in the grievances. Tapply acknowledges that at the time of the review hearing she was aware that grievances had been filed against Judge Lynn, having filed two of the grievances herself and her lawyer having filed the third. Nonetheless, she contends that Judge Lynn should have disclosed the correspondence with the JCC to Zukatis at the hearing and that his failure to do so requires recusal. The fact that Judge Lynn did not inform Zukatis of the grievances filed by Tapply fails to establish any appearance of bias against Tapply or call into question his impartiality in any way. Since it was Tapply, and not Zukatis, who filed the motion to recuse, it is irrelevant whether Zukatis was informed of the JCC communications. Tapply next argues that Judge Lynn's impartiality could reasonably be questioned because he had a "personal hostility toward [Tapply] (and her attorney) evidenced by a six page letter to the New Hampshire Judicial Conduct Committee, as well as his decisions in the case." She contends that the rulings display a deep-seated favoritism or antagonism that made fair judgment impossible. She further argues that the orders of the court were not reflective of the record in the case. We first address the letter that Judge Lynn sent to the JCC responding to concerns about his demeanor at the September 29, 2009 hearing. Again, "[t]he party claiming bias must show the existence of bias, the likelihood of bias, or an appearance of such bias that the judge is unable to hold the balance between vindicating the interests of the court and the interests of a party." Hall, 152 N.H. at 377, 877 A.2d 222. Whether an appearance of impropriety exists is determined under an objective standard. Id. After reviewing Judge Lynn's letter to the JCC, we conclude that, objectively viewed, no reasonable person would have determined that Judge Lynn was prejudiced or biased against either Tapply or her attorney. The letter provides a brief background of the issues involved in the case, all of which was contained in the court's May 26, 2009 final order. Judge Lynn noted that he did ask Tapply a series of follow up questions during her testimony, but only because she did not provide *640 direct answers to the court's initial questions. Judge Lynn acknowledged speaking in a stern tone while making findings and rulings on the record but denied that it was particularly aggressive or strident. He said that it was necessary to admonish Tapply for what he found to be clearly unreasonable behavior and then provided a detailed description of the reasons why he felt her behavior was unreasonable. As we have already established, "judicial remarks. . . that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge." Bader, 148 N.H. at 271, 808 A.2d 12 (quotation omitted). Nothing in the letter to the JCC even remotely suggests the deep-seated favoritism or antagonism alleged by Tapply. We next address the court's rulings in the case. After a thorough review of all of the transcripts and rulings in the case, we conclude that objectively viewed, no reasonable person would have determined that the trial court was prejudiced or biased against either Tapply or her attorney. There are certainly instances in the record where Judge Lynn admonished Tapply, but these were always accompanied by specific, detailed reasons related to particular events in the case. Tapply raises concern with Judge Lynn's comments that he was "skeptical" of Tapply before the final hearing had been held. The United States Court of Appeals for the Second Circuit has aptly noted that it is [a judge's] duty, while listening to and watching [witnesses], to form attitudes towards them. He must do his best to ascertain their motives, their biases, their dominating passions and interests, for only so can he judge of the accuracy of their narrations. He must also shrewdly observe the strategems of the opposing lawyers, perceive their efforts to sway him by appeals to his predilections. He must cannily penetrate through the surface of their remarks to their real purposes and motives. He has an official obligation to become prejudiced in that sense. Impartiality is not gullibility. Disinterestedness does not mean child-like innocence. If the judge did not form judgments of the actors in those court-house dramas called trials, he could never render decisions. In re J.P. Linahan, Inc., 138 F.2d 650, 654 (2d Cir.1943). When Judge Lynn noted that he was skeptical of claims made by Tapply, he was merely fulfilling his duty as the finder of fact. Judge Lynn provided detailed reasoning for his skepticism, which was supported by the record before him. For example, Judge Lynn found that Tapply had a history of making allegations of sexual abuse against Zukatis, only to have DCYF and the investigating police departments drop the case due to a lack of evidence. In regard to the September 2009 allegation, Judge Lynn found that Zukatis was never alone with Z.Z., consistent with an order of the court, and there was no reason for Tapply to reasonably believe that Zukatis's parents had not supervised the September 2009 visit. We find nothing in the rulings of the court to suggest a personal bias or partiality against Tapply or her attorney. Tapply also argues that several of the court's orders are "not reflective of the record." It appears that her primary concern is that at the final hearing in March 2009, Tapply called several witnesses and introduced numerous exhibits, mostly uncontradicted by Zukatis. She argues that Judge Lynn ignored all of the professional recommendations presented at the hearing. *641 "The trier of fact is in the best position to measure the persuasiveness and credibility of evidence and is not compelled to believe even uncontroverted evidence." Restaurant Operators, Inc. v. Jenney, 128 N.H. 708, 711, 519 A.2d 256 (1986). After a thorough review of the transcript and the order, it is clear that Judge Lynn rejected the testimony because he found it to be lacking in credibility, and not based upon some bias against Tapply and her attorney. We cannot say that Judge Lynn erred in rejecting the testimony and evidence presented by Tapply, even if such evidence was uncontradicted. Tapply further contends that Judge Lynn's impartiality could reasonably be questioned when "the `letter of caution' [he] received appeared in many media outlets while the matter was pending." Tapply argues that when the Manchester Union Leader published an article reporting on the "letter of caution," her motion for judicial disqualification and motion for reconsideration were still pending. She contends that an objective observer would reasonably question his impartiality after reading the article in the newspaper. Recognizing that the test for partiality is objective and asks whether a "disinterested observer, fully informed of the facts, would entertain significant doubt that justice would be done in the case," Blackden, 154 N.H. at 456, 913 A.2d 742 (quotation omitted), we do not find that the media reports regarding the letter of caution would cause an objective observer to reasonably question Judge Lynn's impartiality. The news article reported that the JCC dismissed the grievances alleging bias and discrimination filed by Tapply and her attorney. The article reported that the JCC was concerned about Judge Lynn's tone on the bench and also reported on the events of the custody case. We have already determined that the letter of caution itself would not cause an objective observer to reasonably question the trial judge's impartiality, and Tapply fails to explain why a news media outlet report on the letter would lead to a different result. II Tapply next argues that Judge Lynn applied the wrong standard for judicial recusal or disqualification in denying her motion for judicial disqualification. Tapply contends that the law in this state requires an objective standard while Judge Lynn applied a subjective standard. Tapply points to Judge Lynn's order in which he stated, "In summary, the court reiterates that it holds no subjective personal bias or prejudice against petitioner or her counsel and would recuse itself sua sponte if the court felt otherwise." The Code of Judicial Conduct requires a judge to disqualify himself in a proceeding where the judge's impartiality might reasonably be questioned and to avoid even the appearance of impropriety. See Sup. Ct. R. 38, Canon 3E(1); see also State v. Belyea, 160 N.H. 298, 303, 999 A.2d 1080 (2010). "The existence of an appearance of impropriety is determined by an objective standard, i.e., would a reasonable person, not the judge himself, question the impartiality of the court." Belyea, 160 N.H. at 303, 999 A.2d 1080 (quotation omitted). "The objective standard is required in the interests of ensuring justice in the individual case and maintaining public confidence in the integrity of the judicial process which depends on a belief in the impersonality of judicial decision making." Id. (quotation omitted). "The test for an appearance of partiality is whether an objective, disinterested observer, fully informed of the facts, would entertain significant doubt that justice would be done in the case." Id. (quotation omitted). *642 Additionally, the Code of Judicial Conduct requires a judge to disqualify himself whenever "the judge has a personal bias or prejudice concerning a party or a party's lawyer." Sup.Ct. R. 38, Canon 3E(1)(a). This rule requires the judge to examine whether or not he has a personal bias, which is a subjective standard, rather than an appearance of bias, which is an objective standard. After reviewing Judge Lynn's order on Tapply's motion for judicial disqualification we conclude that the court applied the correct standards. While Tapply is correct that the order includes a statement about the court's own subjective view, this was required under Canon 3(E)(1)(a). The court went on to address the objective standard regarding the appearance of bias, finding, "Under all the circumstances, the court is convinced that an objective, disinterested observer, fully informed of the facts, would not entertain significant doubt as to the court's impartiality or its ability to do justice in this case." Because Judge Lynn applied the correct standards in reviewing Tapply's motion for judicial disqualification, we do not find error. III Finally, Tapply argues that communications between Howard Zibel, general counsel for the New Hampshire Judicial Branch, and Judge Lynn constituted ex parte communications in violation of the Code of Judicial Conduct and that Judge Lynn erred in not granting her motion for disqualification. On January 12, 2010, Tapply and her lawyer testified in front of a committee of the New Hampshire legislature in support of House Bill 1156, a bill clarifying the factors considered by a court in determining the best interest of the child in parenting cases. Zibel was present at the committee hearing. Following Tapply's testimony regarding her alleged mistreatment during her parenting case, Zibel decided to look into how the court system had handled Tapply's case. Zibel assumed the case was in the Family Division and asked the administrative judge for the Family Division, Judge Edwin Kelly, at a January 14, 2010 meeting of the Judicial Branch Administrative Council if he was aware of a case involving someone named Tapply. Judge Lynn, who as chief justice of the superior court was a member of the Administrative Council, was present at the time. Judge Lynn responded that the case was in Hillsborough County Superior Court and that he had written a lengthy order in the case. This information was relayed to a state representative, who then emailed Zibel on February 1, 2010, asking if he had the records in a "case Judge Lynn presided over," pertaining to testimony before the committee on the bill. At some point between January 14 and February 1, Zibel asked Judge Lynn in a telephone conversation whether the Tapply file was a public file. Judge Lynn responded that it was and that he had issued a subsequent order in the case. On February 2, 2010, Zibel had another phone conversation with Judge Lynn on a different matter, and at the conclusion of the conversation asked whether his recent order in the Tapply case had been issued. Judge Lynn responded that he was unsure whether the clerk's office had sent the order out and then briefly described the second order. Zibel then contacted the clerk of the superior court and asked to have the orders in the Tapply case faxed to him. On February 4, 2010, Zibel formally filed the two orders he received from the superior court with the House Children and Family Law Committee for inclusion in the file on HB 1156. *643 Canon 3B(7) of the Code of Judicial Conduct states that "[a] judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding" absent one of the limited enumerated exceptions. Sup. Ct. R. 38, Canon 3B(7) (amended 2011). "Ex parte communications are those that involve fewer than all of the parties who are legally entitled to be present during the discussion of any matter." J. Alfini & a., Judicial Conduct and Ethics § 5.02, at 5-2 (4th ed. 2007). The test for recusal is an objective one, that is, whether an objective, disinterested observer, with knowledge of all the facts, would entertain significant doubt that justice would be done in the case. Blackden, 154 N.H. at 456, 913 A.2d 742. "[T]he mere fact that a judge received a communication pertaining to a matter without proper notice being afforded to all parties does not, standing alone, create any reasonable basis for questioning the judge's impartiality." R. Flamm, Judicial Disqualification § 14.3, at 379 (2d ed. 2007). Judicial disqualification is required when "the judge's impartiality might reasonably be questioned." Sup.Ct. R. 38, Canon 3E(1). Whether or not an ex parte communication requires the disqualification of the judge who either initiated or received it largely depends on the extent and nature of the communication; the circumstances under which it was made; what the judge did as a result; whether the ex parte communication adversely affected a party who has standing to complain; and whether there is reason to believe that the judge has relied on the improper communication. Flamm, supra § 14.3, at 379-80. Further, if ex parte communications concern only scheduling or other types of purely housekeeping matters and do not involve discussion of the merits of any issue in the case, they do not evidence a biased state of mind. Id. § 14.3, at 383-84. Even assuming that the communications between Zibel and Judge Lynn constituted ex parte communications, they do not rise to a level requiring judicial disqualification. All of the communications between Zibel and Judge Lynn concerned the fact that the judge was presiding over the Tapply case and that he had issued orders in that case. The sole purpose of the communications, initiated by Zibel, was to obtain copies of the orders to provide to the House Children and Family Law Committee. There is no evidence, nor does Tapply contend, that the communications involved a discussion of the merits of any issue in the case, that the communications adversely affected her case, or that Judge Lynn, in any way, relied upon these communications in making his rulings. After a thorough review of the record we cannot say that Judge Lynn erred in denying Tapply's motions for recusal and judicial disqualification as a result of the communications with Zibel. Affirmed. DALIANIS, C.J., concurred; BROCK, C.J., retired, specially assigned under RSA 490:3, concurred.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2329056/

278 P.3d 100 (2012) 249 Or. App. 651 STATE of Oregon, Plaintiff-Respondent, v. Joseph Michael KINNEY, Defendant-Appellant. C082453CR; A143099. Court of Appeals of Oregon. Argued and Submitted July 28, 2011. Decided May 9, 2012. *101 Jedediah Peterson, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services. Paul L. Smith, Assistant Attorney General, argued the cause for respondent. On the brief were John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and Denis M. Vannier, Assistant Attorney General. Before ARMSTRONG, Presiding Judge, and HASELTON, Chief Judge, and BREWER, Judge.[*] ARMSTRONG, P.J. Defendant appeals a judgment convicting him of four counts of encouraging child sexual abuse in the first degree, ORS 163.684, and four counts of encouraging child sexual abuse in the second degree, ORS 163.686. He raises three assignments of error, all but one of which we reject without discussion. We write only to address his contention that the trial court erred in admitting certain evidence despite his offer to stipulate that the disputed evidence depicted sexual conduct involving a child and that its creation involved child abuse. Because we determine that defendant's proffered stipulation did not make the evidence irrelevant or require its exclusion on the ground that its probative value was substantially outweighed by the danger that it would cause unfair prejudice to defendant, we affirm. Pursuant to a search warrant, police examined the hard drive of defendant's computer and found two images and two videos depicting child sexual abuse on it. Based on defendant's possession, dissemination, and exchange of the images and videos (the evidence), the state charged defendant with first- and second-degree encouraging child sexual abuse, ORS 163.684; ORS 163.686.[1] *102 At trial, defendant offered to stipulate "that the images * * * depict sexually explicit conduct involving a child and the creation of the visual recordings of sexually explicit conduct * * * involved child abuse." The state refused to agree to the proposed stipulation, contending that it was not required to accept a stipulation on a material element of a crime and that the evidence was relevant, despite defendant's proffered stipulation, on the issues of mistake and intent. The trial court admitted the evidence over defendant's objection that his proposed stipulation (1) made the evidence irrelevant to any issue in the case and, hence, inadmissible under OEC 401 and OEC 402[2] or (2) required the evidence to be excluded under OEC 403 because the danger of unfair prejudice to defendant from the evidence substantially outweighed the probative value of the evidence to the state.[3] Defendant appeals, contending that his proffered stipulation would have relieved the state of its burden to prove that the disputed visual recordings depicted sexually explicit conduct involving a child and that the creation of those recordings involved child abuse, thereby obviating the state's need to use the evidence to prove those elements of the charged crimes. Defendant relies on State v. Hess, 342 Or. 647, 159 P.3d 309 (2007), as support for his contention that the court erred in overruling his objection to the admission of the evidence. In Hess, the defendant offered to stipulate to the existence of his prior convictions for public indecency, the existence of which would elevate the charges in the case to felonies for sentencing purposes, and asked the court not to disclose the stipulation to the jury. Id. at 649-50, 159 P.3d 309. The state filed a motion in limine seeking to have the court read to the jury the defendant's admission to the existence of his prior convictions for public indecency, but the court denied the motion. The state appealed the court's pretrial ruling on the in limine motion. On Supreme Court review, the court explained that the "state's only arguable justification for offering evidence of [the] defendant's judicial admission during trial is that the disclosure would make the existence of the fact of the prior convictions `more probable * * * than it would be without the evidence.'" Id. at 662, 159 P.3d 309 (quoting OEC 401) (omission in Hess). The court concluded that the defendant's judicial admission to his prior convictions relieved the state of its burden to prove the existence of the convictions and that, "when a defendant makes a judicial admission to a material fact, * * * the state must demonstrate that the rules of evidence support the admission of evidence subsequently offered to prove the judicially admitted fact." Id. at 664, 159 P.3d 309. The court went on to conclude that the trial court had correctly denied the state's motion because the state had not established that the evidence was admissible notwithstanding the defendant's judicial admission. Id. Defendant argues that his case is analogous to Hess. He contends that his offer to stipulate that the evidence depicts sexually explicit conduct involving a child and that its creation involved child abuse established those facts for purposes of the trial in this case, thereby making the evidence both irrelevant and unfairly prejudicial. Despite a stipulation, evidence may be admissible because it is relevant to prove a fact that is at issue notwithstanding the stipulation. See State v. Brostrom, 214 Or. *103 App. 604, 607, 167 P.3d 460 (2007), rev. den., 344 Or. 109, 178 P.3d 249 (2008) (evidence proving a defendant's prior conviction may be "admissible for some other purpose" even though the defendant's stipulation conclusively establishes the fact of the prior conviction); State v. Sparks, 336 Or. 298, 311-12, 83 P.3d 304, cert. den., 543 U.S. 893, 125 S. Ct. 219, 160 L. Ed. 2d 158 (2004) (a stipulation makes evidence irrelevant when the evidence is relevant only to prove a fact that is established by the stipulation but not when the stipulation does not have equal evidentiary significance to the disputed evidence). In Hess, the Supreme Court recognized that the state's only justification for offering the disputed evidence was to prove the existence of the defendant's prior convictions, which was precisely what was established through the defendant's judicial admission. Here, the state contends that the graphic nature of the evidence has a tendency to prove elements of the charged crimes to which defendant did not stipulate, viz., his knowledge that the visual recordings depicted sexual conduct involving a child and that the creation of the evidence involved child abuse and that his purpose for possessing the recordings was to arouse sexual desire. Defendant responds that "showing the jury the video, as opposed to merely informing the jury that the video was of child pornography, would not make it any more likely that his actions were not a mistake. Nor would viewing the content of the video make a factfinder more likely to find that defendant's intent was to either disseminate the videos or possess them with a sexual purpose." We disagree. The graphic nature of the evidence has a tendency to establish that a person who viewed the recordings would know that they depicted sexually explicit conduct involving a child and that the conduct involved child abuse because a reasonable viewer of the evidence would know those things. Its graphic nature also makes it more likely that a person who possessed or disseminated the recordings would have a sexual purpose for doing so. Conversely, the proposed stipulated facts do not have the same evidentiary effect on those elements of the charged crime as does the evidence itself. Thus, the evidence is relevant to prove defendant's knowledge of the content of the recordings and his sexual purpose for possessing them, notwithstanding defendant's proffered stipulation about aspects of their content. Consequently, the evidence was not inadmissible under OEC 401 and OEC 402. Furthermore, the trial court did not err in overruling defendant's OEC 403 objection to the admissibility of the evidence. "Evidence is properly excluded under OEC 403 if its `probative value' is `substantially outweighed by,' inter alia, `the danger of unfair prejudice, confusion of the issues, or misleading the jury.' Evidence is `unfairly prejudicial' if it appeals to the preferences of the factfinder for reasons that are unrelated to its capacity to establish a material fact." State v. Borck, 230 Or.App. 619, 636, 216 P.3d 915, adh'd to on recons., 232 Or.App. 266, 221 P.3d 749 (2009), rev. den., 348 Or. 219, 230 P.3d 21 (2010). Evidence is not unfairly prejudicial solely because it is graphic. Sparks, 336 Or. at 313, 83 P.3d 304. Here, the disputed recordings were relevant to prove that defendant knew that they depicted sexual conduct involving a child and child abuse and that defendant had a sexual purpose for possessing them. Whether the evidence should have been excluded under OEC 403 thus depends on whether the danger of unfair prejudice to defendant from its admission substantially outweighed that relevance. Defendant contends that the graphic nature of the evidence was extremely prejudicial and "would distract any juror from deciding the issues germane to the case." Although the evidence depicts graphic images of sexual abuse of children, that is the unfortunate nature of evidence submitted in a trial in which a defendant is charged with possessing child pornography, and the graphic nature of those images alone is not a basis to exclude them under OEC 403. Cf. State v. Barone, 328 Or. 68, 88, 969 P.2d 1013 (1998), cert. den., 528 U.S. 1135, 120 S. Ct. 977, 145 L. Ed. 2d 928 (2000) (noting, in a murder trial, that, "[a]lthough the photographs in question *104 were graphic, they could not be said to be remarkable in the context of a murder trial"). We are not persuaded that the trial court erred in concluding that the danger of unfair prejudice to defendant from the disputed evidence substantially outweighed the probative value of the evidence to the state. Affirmed. NOTES [*] Brewer, J., vice Sercombe, J. [1] We cite the current version of ORS 163.684 and ORS 163.686 because, even though those statutes were amended after defendant committed the crime in this case, those amendments are immaterial to our analysis. Or. Laws 2011, ch. 515, §§ 3, 4. ORS 163.684 provides: "(1) A person commits the crime of encouraging child sexual abuse in the first degree if the person: "(a)(A) Knowingly develops, duplicates, publishes, prints, disseminates, exchanges, displays, finances, attempts to finance or sells a visual recording of sexually explicit conduct involving a child or knowingly possesses, accesses or views such a visual recording with the intent to develop, duplicate, publish, print, disseminate, exchange, display or sell it; or "(B) Knowingly brings into this state, or causes to be brought or sent into this state, for sale or distribution, a visual recording of sexually explicit conduct involving a child; and "(b) Knows or is aware of and consciously disregards the fact that creation of the visual recording of sexually explicit conduct involved child abuse." ORS 163.686 provides: "(1) A person commits the crime of encouraging child sexual abuse in the second degree if the person: "(a)(A)(i) Knowingly possesses or controls, or knowingly accesses with the intent to view, a visual recording of sexually explicit conduct involving a child for the purpose of arousing or satisfying the sexual desires of the person or another person; or "(ii) Knowingly pays, exchanges or gives anything of value to obtain or view a visual recording of sexually explicit conduct involving a child for the purpose of arousing or satisfying the sexual desires of the person or another person; and "(B) Knows or is aware of and consciously disregards the fact that creation of the visual recording of sexually explicit conduct involved child abuse; or "(b)(A) Knowingly pays, exchanges or gives anything of value to observe sexually explicit conduct by a child or knowingly observes, for the purpose of arousing or gratifying the sexual desire of the person, sexually explicit conduct by a child; and "(B) Knows or is aware of and consciously disregards the fact that the conduct constitutes child abuse." [2] OEC 401 provides that evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." OEC 402 provides that "evidence which is not relevant is not admissible." [3] OEC 403 provides that relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence."

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2329350/

100 Pa. Commw. 84 (1986) 514 A.2d 265 Arthur Keastead, Petitioner v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole, Respondent. No. 3104 C.D. 1985. Commonwealth Court of Pennsylvania. Submitted on briefs May 7, 1986. August 21, 1986. Submitted on briefs May 7, 1986, to Judges CRAIG and PALLADINO, and Senior Judge BARBIERI, sitting as a panel of three. *85 Steven B. Molder, for petitioner. Arthur R. Thomas, Assistant Chief Counsel, with him, Robert A. Greevy, Chief Counsel, for respondent. OPINION BY JUDGE PALLADINO, August 21, 1986: This is an appeal by Arthur Keastead (Petitioner) from a denial of his request for Administrative Relief by the Board of Probation and Parole (Board). We affirm. Petitioner was paroled on November 23, 1983 from a sentence of one and one-half to three years (minimum date of October 4, 1984 and a maximum date of April 4, 1986). On March 18, 1985 while in Petitioner's apartment, his parole officer observed nunchakus in the pocket of Petitioner's jacket.[1] As a result Petitioner was charged with a violation of parole condition 5(b), which required that Petitioner refrain from owning or possessing any firearms or other weapons. See 37 Pa. Code §63.4(5)(ii). Thereafter, on April 19, 1985, Petitioner was notified by his parole officer to report on April 24, 1985 at 3:00 p.m. to a specified neighborhood center in Easton, Pennsylvania. Petitioner was again reminded (by his officer, in person) on April 24, 1985 that they were to meet at the center, that same day. Petitioner failed to report as instructed, thus violating condition 3(a) of his parole which required Petitioner to maintain regular contact with the parole supervision staff by: reporting regularly as instructed. See 37 Pa. Code §63.4(3)(i). Pursuant to a parole revocation hearing held on July 17, 1985 at the Northampton County Prison, Petitioner *86 was recommitted as a technical parole violator to serve an unexpired term of ten months and twenty-eight days. This is an appeal by Petitioner following a denial of administrative relief from the Board. The Board has been granted great discretion by the legislature in matters concerning parole. Barlip v. Pennsylvania Board of Probation and Parole, 45 Pa. Commw. 458, 405 A.2d 1338 (1979). Absent a violation of constitutional rights or a showing of arbitrary and capricious disregard for the fact-finding process, this Court will not interfere with the Board's determination. Bradshaw v. Pennsylvania Board of Probation and Parole, 75 Pa. Commw. 90, 461 A.2d 342 (1983). Petitioner first alleges that because he knew that the purpose for meeting with his officer on April 24, 1985 was to detain and rearrest him, he had a right to disobey the instructions of his parole officer in order to speak with his lawyer. We disagree. An inmate does not have a right to parole. He has "no constitutional right to be released prior to the expiration of a valid sentence". Barlip v. Pennsylvania Board of Probation and Parole, 45 Pa. Commw. 458, 462, 405 A.2d 1338, 1340 (1979). Rather parole is a matter of grace and mercy shown by the Commonwealth to a convict who has demonstrated his ability to function as a law abiding member of society. Bradshaw v. Pennsylvania Board of Probation and Parole, 75 Pa. Commw. 90, 461 A.2d 342 (1983). Furthermore, it is consistent with the purpose of a parole program to limit the liberties of a convicted criminal who is permitted to enter society prior to the normal expiration of his sentence. As a condition of parole, he was required to report to his parole officer at the officer's request. Petitioner claims that, on this occasion, he had a right to see an *87 attorney rather than meet with his officer because the purpose of the meeting was to detain and rearrest him. It is well-settled that the assistance of counsel is "required at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected." Mempa v. Rhay, 389 U.S. 128 (1967), as cited in Commonwealth ex rel. Rambeau v. Rundle, 455 Pa. 8, 314 A.2d 842 (1973). However, it is at a parole revocation hearing where the parolee first stands to lose his liberty and faces the possibility of going back to prison. Commonwealth v. Tinson, 433 Pa. 328, 249 A.2d 549 (1969). It is for this reason, that a parolee's right to an attorney first attaches at a parole revocation hearing. Petitioner, unlike the parolee who is before the Board at a parole revocation hearing, did not stand to lose his liberty as a parolee simply because he was instructed to meet with his parole officer. As such, he did not have a right to see his attorney rather than meet with his parole officer, as instructed. The Board found that Petitioner neither reported nor called to explain why he did not meet with his officer. As such we hold that the Board's conclusion, that Petitioner violated condition 3(a) of his parole, is supported by substantial evidence in the record. Next, Petitioner contends that he did not violate condition 5(b) of his parole by possessing nunchakus. Arguing he is a student of the martial arts, Petitioner contends the nunchakus are an instrument of the sport, and therefore, they are not to be considered a weapon. Petitioner cites Commonwealth v. Adams, 245 Pa. Super. 431, 369 A.2d 479 (1976) in support of his argument. We find Petitioner's argument to be without merit. The Court in Adams held that while the nunchakus found on defendant's possession could be used offensively as a weapon, because the defendant was a student *88 of martial arts, and he used the nunchakus in that capacity only, his possession did not violate the Pennsylvania Criminal Statute, 18 Pa. C.S.A. §907, 908, 908(b) which prohibits the use or possession of offensive weapons. Petitioner claims that he too is a student of karate[2], and that therefore, according to Adams, his possession of the nunchakus should not constitute possession of a weapon. However, the Court in Adams was defining the word weapon as it is used in a criminal statute not as the word is used in a condition of parole. While the Code does not actually define what constitutes a weapon, Michael v. Pennsylvania Board of Probation and Parole, 85 Pa. Commw. 173, 481 A.2d 711 (1984), it is clear that the provisions of the crimes code and rules of criminal procedure are not directly applicable to recommitment actions of the Board. Miller v. Pennsylvania Board of Probation and Parole, 78 Pa. Commw. 26, 466 A.2d 1110 (1983). This Court in Michael, found that although a pocket knife with a 3-1/2 inch blade may not constitute a weapon under the Crimes Code, the Board was not wrong in ruling that the knife was a weapon for parole violation purposes. In so doing, we defined weapon, generally, "as an instrument of offensive or defensive combat: something to fight with." Id. at 175, 481 A.2d at 712. In the absence of a specific definition, and in light of Michael, we concluded that the Board was not wrong in ruling nunchakus to be a weapon for purposes of parole violation. Accordingly, we affirm the Board's decision. *89 ORDER AND NOW, August 21, 1986, the order of the Board of Probation and Parole, at No. 0985K, dated October 28, 1985, is affirmed. NOTES [1] The nunchaku is an instrument of southeast Asian origin generally used in the martial arts. It consists of two hardwood sticks hinged end to end by a length of rawhide, cord, or chain, so as to allow freedom to swivel. An individual by holding one of the sticks can swing or twirl the other. [2] While Petitioner contends that he is a student of karate, the Board concluded, after a review of all the evidence, that he was not. As such, Adams is inapposite to the case at bar.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2329305/

494 F. Supp. 2d 1255 (2007) John VANDEVENTER, as personal representative of the Estates of Elisse Vandeventer and Marissa Vandeventer, John Vandeventer, individually, and Shellee Vandeventer, individually, Plaintiffs, v. Dale GUIMOND, and Board of County Commissioners of Coffey County, Kansas, Defendants. No. 07-4018-JAR. United States District Court, D. Kansas. July 10, 2007. *1256 James L. Wisler, Wisler Law Offices, Lawrence, KS, Jeffrey C. Jones, Krutch Lindell Bingham Jones & Petrie PS, Seattle, WA, for Plaintiffs. James P. Nordstrom, Steven R. Fabert, Fisher, Patterson, Sayler & Smith, Topeka, KS, for Defendants. MEMORANDUM AND ORDER GRANTING MOTION TO REMAND ROBINSON, District Judge. This case was originally filed by plaintiffs in Franklin County, Kansas District Court and was removed by defendant Board of County Commissioners of Coffey County, Kansas ("the Board") to this Court on February 5, 2007. Currently, the following motions are pending before the Court: (1) Plaintiffs' Motion to Remand (Doc. 9); (2) Defendant Guimond's Objection to Order of Magistrate Judge (Doc. 24); (3) Defendant Guimond's Motion to Dismiss (Doc. 28); (4) Defendant Board of County Commissioners of Coffey County Kansas's Motion to Dismiss (Doc. 29); (5) Defendants' Motion to Certify Questions of Law (Doc. 30); (6) Plaintiffs' Motion to Stay Case Pending Court's Decision on Plaintiffs' Motion for Remand (Doc. 32); (7) Motion for Extension of Time to File Response as to Motion to Dismiss; (8) Plaintiffs' Motion for Extension of Time to Respond to Guimond and Coffey County Defendants' Motions to Dismiss and for Consolidated Discovery Conference with Related Federal Case (Doc. 40); and (9) Defendants' Unopposed Motion for Extension of Time to File Reply as to Motion to Dismiss (Doc. 46). As described more fully below, the Court grants plaintiffs' motion to remand. Accordingly, the remaining motions are denied as moot. I. Background This wrongful death and survival action was filed by the father and stepmother of *1257 two young girls who were killed in a plane crash on November 23, 2003, off the coast of Oregon. Plaintiffs allege that the plane crash was caused by a defective vacuum pump that should have been removed and replaced. Defendant Dale Guimond was alleged to have negligently inspected the aircraft and certified that it was airworthy, as an employee of Coffey County Airport. This case has a tortured history that the Court will endeavor to detail. Plaintiffs originally filed this case in Franklin County, Kansas District Court against Burkdoll Construction L.L.C., Clint Burkdoll, and Dale Guimond on November 23; 2005. Summons were issued to all three defendants and the Burkdoll defendants were both served on January 26, 2006.[1] At some point, counsel for plaintiffs contacted counsel for Guimond to determine the proper entity that employed Guimond, believing that airport authorities are separate entities in Kansas. Guimond's counsel declined to clarify for plaintiffs' counsel the appropriate party to name in the Amended Petition as Guimond's employer. The original petition includes the following allegations against Guimond: On June 11, 2002, subsequent to the installation by Dodson of the subject vacuum pump, Defendant Dale M. Guimond, an FAA certified air frame and power plant mechanic, was hired or otherwise retained by Defendants Burkdoll to perform, and did perform, an annual maintenance and inspection on N10BX pursuant to Federal Aviation Regulations. . . . [and] represented in the aircraft log that he had inspected said aircraft, and that that [sic] it was airworthy and approved for return to service. In conducting said annual inspection and maintenance, Defendant Guimond negligently failed to take any action relating to said vacuum pump including, but not limited to, inspecting or replacing said vacuum pump, nor did ne note in the aircraft logs nor advise the aircraft owner of the apparent inability to determine the age, hours, or condition of the vacuum pump and the lack of documentation thereof. At all times during said annual maintenance and inspection Defendant Guimond had available to him the aircraft logs which revealed that the vacuum pump which was installed by Dodson was described only as "serviceable," without any indication as to the number of hours which had been accumulated on said part. Based upon Defendant Guimond's background, training and experience, Guimond knew or should have known that this was an indication that the part was likely installed in a used condition, and that the age and number of hours of the part could not be determined. Further, at the time of the inspection, Dale Guimond knew or should have known that the aircraft should not be flown if the age, condition, and time in service of the vacuum pump could not be determined. Guimond further knew or should have known at the time of inspection that due to the condition and lack of documentation of the vacuum pump, the subject aircraft was not airworthy at the time of the inspection and dangerous to fly.[2] On June 22, 2006, plaintiffs' motion to amend the petition was granted and the Amended Petition added the following defendants: (1) Coffey County; (2) Coffey County Airport; (3) Coffey County Airport District and/or (4) Coffey County Airport Authority (collectively "the County defendants"). The substance of the original petition was not otherwise substantially amended. Service was effected on Coffey *1258 County by certified mail delivery to the Coffey County Clerk on July 5, 2006. On August 7, 2006, Guimond and the Coffey County defendants filed a motion to dismiss. The motion was based on the following arguments: (1) the Kansas Tort Claims Act's ("KTCA") immunity provisions bar any claims against these defendants; and (2) all claims are barred by the statute of limitations because service of process had not been achieved. Specifically, they argued that there had never been an attempt to serve Guimond,[3] and that the Coffey County defendants were inappropriate parties to the suit under K.S.A. § 19-105, requiring suit against a "subordinate agency of a Kansas County [to be] brought against the Board of County Commissioners of that county." On August 28, 2006, plaintiffs attempted to serve Guimond in Waterloo, Iowa, where he appeared for a deposition in related litigation. The County defendants and Guimond objected to the validity of that service under K.S.A. § 12-105b in a supplemental motion to dismiss. On September 19, 2006, a special process server was appointed by the court and on the same day she personally served Guimond, which was objected to as untimely. On October 10, 2006, plaintiffs filed a motion for leave to file a second amended petition, removing the County defendants listed in the First Amended Petition and adding the Board of County Commissioners of Coffey County, Kansas. On November 3, 2006, a return of summons was filed stating that Guimond was served the Amended Petition on October 27, 2006. The hearing on the motion to dismiss was before the Honorable James J. Smith on December 12, 2006. Also on that day, the Burkdoll defendants were voluntarily dismissed from the case by plaintiffs. At the hearing, the court declined to rule on the motion to dismiss on statute of limitations grounds, based on the service arguments. Instead, the court granted the motion to file a second amended petition to change the name of the County defendants and noted that more discovery was needed on the issue of service on Guimond. The Court denied the motion to the extent defendants sought immunity under the KTCA. The parties were to draft a Journal Entry memorializing Judge Smith's ruling, but it was never filed. On January 16, 2007, the Second Amended Petition was filed, naming the Board as a defendant. This petition was served on the Board by certified mail to the Coffey County Clerk on January 17, 2007. On January 18, 2007, a Third Amended Petition was filed, correcting a scrivener's error in the Second Amended Petition. Counsel for the parties each filed an affidavit with their briefs, discussing the decision to ultimately remove this case to federal court on February 5, 2007. Counsel agree that during a December 7, 2006 telephone conversation, plaintiffs' local counsel, James Wisler, represented to Steven Fabert, counsel for the County and Guimond, that he was concerned that once the Burkdoll defendants were dismissed, the Board would have grounds for a successful motion to change venue to the Coffey County District Court. Wisler represented that he would rather have the case removed to federal court than to have it moved to Coffey County after Judge Smith ruled on the pending motions, including the motion to dismiss. Wisler proposed to Fabert that if he would agree not to transfer *1259 venue to Coffey County, Wisler would not remove the case before Judge Smith could rule on the motion to dismiss at the December 12 hearing.[4] Wisler maintains that this offer remained open only until the date of the motions hearing and that because Fabert never advised him otherwise, the hearing proceeded. Wisler affirms that his client no longer had an incentive for removal after Judge Smith ruled, and complains that the Notice of Removal was filed with no prior consultation. Fabert attests that he did not consult with Wisler before filing the notice of removal because Wisler had expressed his preference for federal court during that conversation, and Fabert believed removal would be welcomed by plaintiffs. Fabert maintains that this impression of plaintiffs' position on the issue was a "significant consideration" in deciding to file the notice of removal. Because Fabert was aware that the time period for filing a notice of removal based on diversity had passed,[5] he wrote a letter to the Attorney General and to the United States Attorney, on behalf of Guimond, invoking his rights under the Westfall Act.[6] This letter states in part: Please consider this letter to be a request for your office to certify that Mr. Guimond `was acting within the scope of his office or employment at the time of the incident out of which the claim arose', as an FAA certified airworthiness inspector, as contemplated by 28 U.S.C. § 2679(d). If you formally decline the opportunity to certify that Mr. Guimond was acting within the scope of his office or employment at the time of the incident out of which the claim arose, Mr. Guimond will have the right under 28 U.S.C. § 2679(c)(3) to ask the court to make that determination independently. Please consider this letter also as a request that your office assume the defense of Mr. Guimond as contemplated by 28 U.S.C. § 2679(b).[7] On March 13, 2007, the United States Attorney's Officer responded to Fabert as follows: Based on my review, I have determined that Mr. Guimond was not an employee of the United States at the time of the incident. A request for a determination of whether or not he was acting within the scope of federal employment under the Westfall Act, therefore, is not appropriate and the immunity benefits of the Act are not available to Mr. Guimond.[8] II. Analysis The court is required to remand "if at any time before final judgment it appears that the district court lacks subject matter jurisdiction."[9] As the party invoking the federal court's jurisdiction, the Board carries the burden of demonstrating that the requirements for exercising jurisdiction are present.[10] Because federal courts are courts of limited jurisdiction, *1260 the law imposes a presumption against federal jurisdiction,[11] and requires a court to deny its jurisdiction in all cases where such jurisdiction does not affirmatively appear in the record.[12] "Doubtful cases must be resolved in favor of remand."[13] In their Notice of Removal, the Board cites 28 U.S.C. § 1442(a)(1) as a basis for jurisdiction. Under that statute: (a) A civil action or criminal prosecution commenced in a State court against any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending: (1) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue (emphasis added). The Board claims that because the Third Amended Petition seeks to hold it liable for the actions of Guimond, who was acting under color of order and authority granted to him by the Federal Aviation Administration ("FAA"), it is authorized to remove the suit. The Board further argues that it is entitled to immunity under the Supremacy Clause and the Westfall Act. Plaintiffs urge the Court to remand this action back to the Franklin County District Court based on the following: (1) the notice of removal is untimely; (2) the Board waived its right to remove because the County defendants and Guimond filed the motion to dismiss in state court; (3) the Board does not have standing to remove because it is not a federal agency, nor does it act under the direction of a federal officer and because it may not remove on behalf of Guimond; (4) Guimond was not a federal employee; and (5) the Board cannot establish a colorable federal defense. Finally, plaintiffs request attorneys' fees and costs. The Court addresses each of these arguments in turn. A. Procedural Objections to Removal 1. Timeliness Under 28 U.S.C. § 1446, a notice of removal must be filed within thirty days "after the receipt by the defendant, through service of process or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based,. . . ." Plaintiffs argue that because the Board had notice of the basis for the proceeding when the first Amended Petition was served on the County Clerk's Office on July 5, 2006, the thirty-day clock began to run at that time and the notice of removal is thus untimely. Plaintiffs reason that because the substantive allegations in the Amended Complaint were identical to those in the Second Amended Complaint that properly named the Board, it had notice of the suit. The parties appear to agree that the Board of County Commissioners of Coffey County[14] is the proper party to be named *1261 as Guimond's employer in this lawsuit. The Second Amended Petition is the first pleading that names the Board as a defendant, and it was properly served on the Board on January 17, 2007. "In the absence of service of process (or waiver of service by the defendant), a court ordinarily may not exercise power over a party the complaint names as defendant."[15] The Supreme Court has held, with regard to the thirty-day time period set forth in § 1446: [I]t would take a clearer statement than Congress has made to read its endeavor to extend removal time (by adding receipt of the complaint) to effect so strange a change — to set removal apart from all other responsive acts, to render removal the sole instance in which one's procedural rights slip away before service of a summons, i.e., before one is subject to any court's authority.[16] This Court finds no indication that the Board was properly served, and therefore fell within the state court's jurisdiction, before January 1'7, 2007; thus, the notice of removal on February 5, 2007 was timely filed.[17] 2. Waiver Next, plaintiffs argue that the Board waived its right to remove this case by litigating the motion to dismiss, as well as other motions, in the state court proceeding. Plaintiffs argue that the removal is an attempt to appeal Judge Smith's oral ruling at the December 12, 2006 hearing and that the Board should have been on notice early on in the case that removal jurisdiction was apparent. The Board responds that it is not possible to waive the Westfall Act defense, that it did not litigate federal immunity in state court and that plaintiffs waived the right to object to removal by inviting the removal during counsel's December 7, 2006 telephone conversation. Plaintiffs are correct that aside from the entities named in the amended petitions, the claims are substantively identical.. The original petition refers to the fact that Guimond was certified by the FAA. "Waiver occurs when a defendant `manifest[s] an intent to litigate in the state court. . . .'"[18] There is authority for the proposition that participating in the state court action, including attempting to seek affirmative relief, manifests an intent to litigate in state court, and thus waives the right to remove.[19] Plaintiffs argue that the Board's litigation of the motion to dismiss in state court constituted an intent to proceed in state court, and thus, it waived the right to remove the case. "However, [for there to be a waiver,] it must [have] be[en] unequivocally apparent that the case [was] removable [before the defendant engaged in the litigation conduct], [] the intent to waive the right to remove to federal court and to submit to state court jurisdiction *1262 must [have been] clear and unequivocal, and the defendant's actions must be inconsistent with the right to remove."[20] While the Court acknowledges that such litigation in state court could, in certain circumstances, constitute a waiver, it does not find waiver to have occurred in this case. The Board's motion to dismiss explicitly asserted that it was neither properly named, nor properly served as a party defendant. It also argued that it enjoyed immunity under the KTCA. After a hearing on the matter, Judge Smith ruled only on the immunity argument, denying the motion. Despite plaintiffs' bare assertions, the immunity argument asserted was strictly based on the KTCA and was not asserted under any federal immunity theory. It appears evident to the Court, based on counsels' respective affidavits, that removal of this case was somewhat due to a simple misunderstanding between them. Counsel for the Board attests that he believed plaintiffs desired removal based on representations made to him by plaintiffs' counsel, while plaintiffs' counsel describes an offer to refile in federal court that expired upon the Board's decision to proceed with the hearing in state court on the motion to dismiss. Either way, the Court is hesitant, given these facts, to conclude that the Board waived its right to remove when it was apparently under the impression that removal would not be contested.[21] Furthermore, as discussed more fully below, the Court does not deem it "unequivocally apparent" that the case was removable prior to the Board filing its motion to dismiss. While the petitions all mention the FAA certification obtained by Guimond, the Board (the removing party here) was arguing for dismissal primarily because of the designation and service problems with regard to both the Board and Guimond. In other words, the Board and Guimond were both arguing that they were never made proper parties to the suit, or that once they were named, the statute of limitations had run. Only after the Court allowed plaintiffs to amend their petition to properly add the Board did the Board seek removal. "[A] defendant who actively invokes the jurisdiction of the state court and interposes a defense in that forum is not barred from the right to removal in the absence of adequate notice of the right to remove."[22] Given that the Board was not properly named until January 2007, it was not provided with adequate notice of removal prior to that date. Under these circumstances, the Court is unable to conclude that it was unequivocally apparent that the Board had the right of removal prior to January 17, 2007. B. Removal under § 1442(a)(1) Normally, only state court actions that could have originally been filed in federal court are removable.[23] In order to determine whether a claim "arises under" federal law, the Court refers to the "well-pleaded complaint rule."[24] That rule provides that "federal jurisdiction exists only when a federal question is presented *1263 on the facts of the plaintiffs properly pleaded complaint. The rule makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law."[25] But federal officer removal is an exception to this rule, as "suits against federal officers may be removed [when] despite the nonfederal cast of the complaint; the federal-question element is met if the defense depends on federal law."[26] The main purpose behind this rule is to assure federal officers' ability to litigate official immunity defenses in federal court.[27] Federal officer removal is "absolute for conduct performed under color of federal office, and . . . the policy favoring removal `should not be frustrated by a narrow, grudging interpretation of § 1442(a)(1).'"[28] A defendant who is not a federal officer or agency must satisfy three elements in order to remove under the federal officer statute. It must show that: (1) it was a person acting under the direction of a federal officer when performing the inspection and certification; (2) it has raised a colorable federal defense to plaintiffs federal claims; and (3) there is a causal connection between the activities carried out under federal authority and the conduct underlying the state court action.[29] 1. "Person Acting Under" Requirements The statute "allows a federal officer to remove a case to federal court even though that officer is only one of several named defendants."[30] The doctrine also extends to private individuals and entities that are "acting under" a federal officer.[31] While it is widely accepted in the case law that corporations are considered "persons" under the statute,[32] there is disagreement with respect to state and county agencies.[33]*1264 1 U.S.C. § 1 indicates that, unless the context indicates otherwise, "person" includes corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals. Under Kansas law, counties are quasi-corporations and the "powers of a county as a body politic and corporate shall be exercised by a board of county commissioners."[34] The Court finds that this status allows the Board the right to remove under this statute if all other requirements are met, especially given that they are being sued by virtue of the fact that they employ Guimond. The Court proceeds to determine whether Guimond can establish that he was acting under a federal officer or agency. "In general, a private person does not establish federal officer jurisdiction merely by showing participation in a regulated industry."[35] Instead, a private person must show that it "effectively stands in the shoes of a federal employee and, as such, was required by the government to take actions that subjected it to liability under state law. This standard is sometimes termed `regulation plus.'" To make this showing, the Board points to the language in the Third Amended Petition that refers to Guimond as an FAA certified air frame and power plant mechanic. According to the Board, this certification allows Guimond to remove the case because he was "acting under" the color of authority granted by the FAA.[36] Further, the Board contends without citation that the regulations and directions promulgated by the FAA for the performance of annual inspections is so comprehensive that Guimond was acting under the FAA. The Board heavily relies on Judge Theis's decision in In re Air Crash Disaster Near Silver Plume, Colorado, on October 2, 1970.[37] That case was a multidistrict action under the Federal Tort Claims Act ("FTCA") against the United States, involving a plane that crashed while carrying members of the Wichita State University football team, coaches, and several fans to a scheduled game in Utah. The case included a claim against an FAA Authorized Inspector who performed an annual inspection of the plane and certified it to be airworthy approximately one month prior to the crash. After a bench trial, Judge Theis found that the inspector was a *1265 certified mechanic with airframe, power-plant and authorized inspector ratings. The court further found that the FAA required the annual inspection for airworthiness according to specific and detailed regulations, as supplemented by brochures, guidelines, and airworthiness directives from the FAA.[38] The court found that despite the fact that the FAA does not furnish the inspectors' tools, equipment, job training, job location, or compensation, the FAA, "pursuant to statutory authority, delegated to AI's the authority to conduct annual inspections to relieve the burden on FAA paid employees."[39] The court also found that the inspector failed to fulfill regulations governing the inspection.[40] Accordingly, the court concluded that the undisputed facts showed that the inspector was acting as a federal employee at the time of his inspection "within the meaning of the Federal Tort Claims Act."[41] The Court does not find In re Air Crash Disaster dispositive with regard to the facts and issues of law in this case. First, Judge Theis was evaluating whether the defendant could be considered a federal employee under the FTCA.[42] In contrast, this Court must decide if Guimond was "acting under" the FAA when he conducted an airworthiness inspection and certification of the aircraft at issue here. Second, Judge Theis made findings of fact after a trial to the court that led him to ultimately conclude that the inspector should be considered a federal employee. This Court has not been provided with any record upon which to make similar findings of fact.[43] Finally, the Board fails to point the Court to any reference in this opinion or otherwise to statutory or regulatory authority for the proposition that A & P or authorized inspector certifications constitute delegated authority by the FAA for purposes of the federal officer removal statute. The Board also relies upon the more recent Eleventh Circuit decision of Magnin v. Teledyne Continental Motors,[44] involving federal officer removal by the private employer of a Designated Manufacturing Inspection Representative ("DMIR"). The court examined the statute that controls issuance of certificates, including airworthiness certificates and determined that by statute, Congress authorized the FAA "subject to regulations, *1266 supervision, and review . . . [to] delegate to a qualified private person, or to an employee under the supervision of that person, a matter related to . . . issuing the certificate."[45] The court concluded that a DMIR is an authorized agent of the FAA under this authority. The Eleventh Circuit reasoned that because the defendant asserted as a defense that "he acted within the scope of his federal duties, that what he did was required of him by federal law, and that he did all federal law required," removal was justified.[46] The position held by Guimond in this case is distinguishable from the position discussed in Magnin. Subpart C of title 14 of the Code of Federal Regulations sets forth, pursuant to 49 U.S.C. § 44702(d)(1)(B), the kinds of designations that can be made by the FAA under that section: This part describes the requirements for designating private persons to act as representatives of the Administrator in examining, inspecting, and testing persons and aircraft for the purpose of issuing airman, operating, and aircraft certificates. In addition, this part states the privileges of those representatives and prescribes rules for the exercising of those privileges, as follows: (a) An individual may be designated as a representative of the Administrator under subparts B or C of this part.[47] Included designations are DMIRs, designated aircraft maintenance inspectors, designated engineering representatives, and designated airworthiness representatives.[48] The Board has not identified Guimond as any of these types of designated representative of the FAA. Instead, it argues that his status as a certified A & P mechanic is analogous to the DMIR in Magnin. But the basis for the Eleventh Circuit's reasoning in that case was that the FAA had designated the defendants, who were private individuals, to serve as its representatives pursuant to the statute and regulations that explicitly provide for such delegations.[49] No such delegation is alleged here, nor is there any evidence that Guimond was designated as an authorized representative by the FAA.[50] *1267 To consider Guimond to be acting under a federal agency would be to conclude, first, that there is no distinction between designated representatives and those individuals who are licensed by the FAA. More importantly, such a conclusion would require the Court to find that Guimond is entitled to federal officer removal merely based on his participation in a highly regulated industry. The law is clear that Guimond may not remove on this basis. Accordingly, the Court is unable to find that the Board can satisfy the requirement for federal officer removal that Guimond effectively stood in the shoes of the FAA, or acted under a federal officer or agency, when he conducted the airworthiness inspection and certification. 2. Colorable Federal Defense Requirement Even if the Board was able to show that Guimond acted under the FAA when he conducted the airworthiness inspection and certification, it is unable to come forward with a colorable federal defense. In so concluding, the Court is mindful that the defense need only be plausible and that its merits are not to be determined at this time.[51] In its response, the Board argues that it can assert a colorable federal defense of immunity under the discretionary function exception to liability in the FTCA. In order to claim sovereign immunity as a defense, the United States would have to be a party to this action, which it is not. In order to get around this defect, the Board asserts that because Guimond was operating under color of authority granted by the FAA, then neither he nor the Board have any liability under the Westfall Act, which would impute any liability found to the United States. This argument is both circular and flawed. First, the Court has already determined that Guimond was not acting under the FAA when he inspected and certified the aircraft in question. Second, the Westfall Act does not provide either an independent basis for removal, nor a colorable federal defense to liability here. Absent a certification that the defendant was acting within the scope of his federal employment at the time of the incident giving rise to suit, § 2679(d)(3) "directs that the case must be remanded to the state court in which the action commenced."[52] In fact, "the Westfall Act gives the named defendant no right to remove an uncertified case."[53] The Act does, however, provide: In the event that the Attorney General has refused to certify scope of office or employment under this section, the employee may at any time before trial petition the court to find and certify that the employee was acting within the scope of his office or employment. Upon such certification by the court, such action or proceeding shall be deemed to be an action or proceeding brought against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant. . . . In the event the petition is filed in a civil action or proceeding pending in a State court, the action or proceeding may be removed without bond by the Attorney General to the district court of the United States for the district and division embracing *1268 the place in which it is pending. If, in considering the petition, the district court determines that the employee was not acting within the scope of his office or employment, the action or proceeding shall be remanded to the State court.[54] The Attorney General has declined to certify that Guimond is a federal employee working within the scope of his federal employment at the time of the inspection and certification. Therefore, his only recourse would be to petition this Court to find and certify that he was acting within the scope of federal employment. Guimond has filed a motion to dismiss asserting that he enjoys immunity because of his status as a federal employee, but he has not petitioned the court under the statutory procedure set forth in the Westfall Act. Given the lack of certification, the Court fails to see how the Westfall Act could provide the Board or Guimond with a colorable federal defense in this matter. At this point, the only way in which such a defense is possible is if, after remand, the Board or Guimond petition the state court for a scope of employment certification, and the state court grants the motion, allowing the United States to be substituted as a defendant with the concomitant right to remove. This Court is unable to find that this tenuous chain of events constitutes a colorable defense.[55] Because the Board is unable to establish that its employee, Guimond, was acting under a federal officer or agency when he inspected and certified the aircraft in question, and because the Board is unable to establish a colorable federal defense, the Court lacks jurisdiction over this suit and grants plaintiffs' motion to remand this case back to the Franklin County District Court. C. Request for Fees Plaintiffs ask the Court for an award of attorneys' fees and costs incurred as a result of the improper removal of this case. Under 28 U.S.C. § 1447(c), [a]n order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal." Martin v. Franklin Capital Corp[56] sets out the appropriate standard for awarding such fees under the statute: Absent unusual circumstances, courts may award attorney's fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal. Conversely, when an objectively reasonable basis exists, fees should be denied. In applying this rule, district courts retain discretion to consider whether unusual circumstances warrant a departure from the rule in a given case. For instance, a plaintiffs delay in seeking remand or failure to disclose facts necessary to determine jurisdiction may affect the decision to award attorney's fees. When a court exercises its discretion in this manner, however, its reasons for departing from the general rule should be "faithful to the purposes" of awarding fees under § 1447(c).[57] *1269 Therefore, the Court must determine whether the Board had an objectively reasonable basis for seeking removal. Plaintiffs argue that the Board and Guimond intentionally delayed seeking removal and that they had no objectively reasonable basis for removal. The Court sees no evidence of intentional delay here. However, the Court is bothered by the length of time it is taking for this case to proceed to discovery, given that since November 2005, the parties have been litigating threshold issues of service and immunity. Despite this observation, the Court does not find that the Board's basis for removal was not objectively reasonable. There is no reason to disbelieve Fabert's affidavit in which he states that he believed the plaintiffs were in favor of the removal. As discussed at length in this Memorandum and Order, the case law on the issues involved here is varied and difficult to reconcile at times. The Board cited authority for the arguments it advanced and made an objectively reasonable attempt to extend the law in this jurisdiction. The Court simply disagrees with the Board's interpretation of the case law and regulations at issue that are dispositive on the question of federal officer removal. Accordingly, the Court denies plaintiffs' request for fees and costs. IT IS THEREFORE ORDERED BY THE COURT that plaintiffs' Motion to Remand (Doc. 9) is granted. The case shall be remanded back to the Franklin County District Court. The remaining pending motions (Does. 24, 28, 29, 30, 32, 33, 40, 46) are denied as moot. IT IS SO ORDERED. NOTES [1] Plaintiffs initially alleged that the plane was owned by the Burkdoll defendants. [2] (Doc. 8, Attach. 2 at 6-7.) [3] A return of service of summons for Guimond was filed on August 28, 2006, representing that the original petition had been sent by certified mail, addressed to Guimond at an address in Cedar Falls, Iowa on November 26, 2005 and received on November 28, 2005. The return receipt shows that it was received by Annett Osborne. (Doc. 8, Attach. 3 at 14.) [4] The Court presumes that Wisler meant that he would stipulate to dismissal in state court and then re-file the case in federal court. [5] See 28 U.S.C. § 1446(b) ("a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action.") [6] The Federal Employees Liability Reform and Tort Compensation Act of 1988, Pub.L. 100-694, 102 Stat. 4563 [hereinafter, the Westfall Act]. [7] (Doc. 16, Ex. 1 at 7.) [8] (Doc. 16, Ex. 1 at 8-9.) [9] 28 U.S.C. § 1447(c). [10] See Martin v. Franklin Capital Corp., 251 F.3d 1284, 1290 (10th Cir.2001) (citation omitted), aff'd, 546 U.S. 132, 126 S. Ct. 704, 163 L. Ed. 2d 547 (2005). [11] Frederick & Warinner v. Lundgren, 962 F. Supp. 1580, 1582 (D.Kan.1997) (citing Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir.1974)). [12] Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S. Ct. 2099, 72 L. Ed. 2d 492 (1982). [13] Thurkill v. The Menninger Clinic, Inc., 72 F. Supp. 2d 1232, 1234 (D.Kan.1999) (citing Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir.1995), cert. denied, 516 U.S. 863, 116 S. Ct. 174, 133 L. Ed. 2d 114 (1995) (further citations omitted)). [14] K.S.A. § 19-105; see also Barngrover v. County of Shawnee, No. 02-4021-JAR, 2002 WL 178914, at *1 (D.Kan. June 10, 2002) (dismissing case for failing to name the Board of County Commissioners and explaining that other Kansas cases that have allowed suits to continue despite this problem did so because the defendant either did not raise a defense of improper designation or admitted it was the defendant in the answer); Dollison v. Osborne County, 241 Kan. 374, 737 P.2d 43, 46-48 (1987). [15] Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350, 119 S. Ct. 1322, 143 L. Ed. 2d 448 (1999). [16] Id. at 356, 119 S. Ct. 1322. [17] The Court does not rule at this time on any argument asserted in other pending motions that concern the statute of limitations or service or process. [18] Chavez v. Kincaid, 15 F. Supp. 2d 1118, 1125 (D.N.M.1998). [19] See, e.g., id.; Mattel, Inc. v. Bryant, 441 F. Supp. 2d 1081, 1090-91 (C.D.Cal.2005); Integra Bank, N.A. v. Greer, No. IP 4:02-CV-244 B/H, 2003 WL 21544260, at *3 (S.D.Ind. June 26, 2003). [20] Mattel, Inc., 441 F.Supp.2d at 1091 (quoting 16 James Wm. Moore et al., Moore's Federal Practice § 107.18[3][a] (3d ed.2004) (citing numerous cases)). [21] The Court advises counsel in the future that under these circumstances, they should seek to obtain a consent to removal from the opposing party, to be filed with the notice of removal. Had this been done, it would certainly have clarified for the Court, plaintiffs' position with regard to removal. Of course, this would require prior consultation. [22] Akin v. Ashland Chem. Co., 156 F.3d 1030, 1036 (10th Cir.1998), cert. denied, 526 U.S. 1112, 119 S. Ct. 1756, 143 L. Ed. 2d 788 (1999). [23] 28 U.S.C. § 1441(a); Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S. Ct. 2425, 96 L. Ed. 2d 318 (1987). [24] See Turgeau v. Admin. Rev. Bd., 446 F.3d 1052, 1060 (10th Cir.2006). [25] Caterpillar Inc., 482 U.S. at 392, 107 S. Ct. 2425 (citation omitted). [26] Jefferson County, Ala. v. Acker, 527 U.S. 423, 431, 119 S. Ct. 2069, 144 L. Ed. 2d 408 (1999); Mesa v. California, 489 U.S. 121, 136, 109 S. Ct. 959, 103 L. Ed. 2d 99 (1989). [27] Willingham v. Morgan, 395 U.S. 402, 406-07, 89 S. Ct. 1813, 23 L. Ed. 2d 396 (1969); Christensen v. Ward, 916 F.2d 1462, 1484 (10th Cir.1990). [28] Arizona v. Manypenny, 451 U.S. 232, 242, 101 S. Ct. 1657, 68 L. Ed. 2d 58 (1981) (quoting Willingham, 395 U.S. at 407, 89 S. Ct. 1813); see also Mesa, 489 U.S. at 135, 109 S. Ct. 959. [29] Freiberg v. Swinerton & Walberg Prop. Servs., Inc., 245 F. Supp. 2d 1144, 1149 (D.Colo.2002); see also Mesa v. California, 489 U.S. 121, 138-39, 109 S. Ct. 959, 103 L. Ed. 2d 99 (1989); In re MTBE Prods. Liability Litig. v. Atlantic Richfield Co., 488 F.3d 112, 124 (2d Cir.2007); Magnin v. Teledyne Cont'l Motors, 91 F.3d 1424, 1427-28 (11th Cir.1996). [30] Akin v. Ashland Chem. Co., 156 F.3d 1030, 1034-35 (10th Cir.1998), cert. denied, 526 U.S. 1112, 119 S. Ct. 1756, 143 L. Ed. 2d 788 (1999) (emphasis added). [31] Freiberg, 245 F.Supp.2d at 1149 (citing Ryan v. Dow Chem. Co., 781 F. Supp. 934 (E.D.N.Y.1992)). [32] See, e.g., Atlantic Richfield Co., 488 F.3d 112, 124; Alsup v. 3-Day Blinds, Inc., 435 F. Supp. 2d 838, 845 n. 3 (S.D.Ill.2006) (collecting cases). [33] Compare Venezia v. Robinson, 16 F.3d 209, 212 (7th Cir.1994) (allowing state agent to remove case based on his affidavit stating that he was acting at the direction of the Federal Bureau of Investigation); Teague v. Grand River Dam Auth., 425 F.2d 130, 134 n. 1 (10th Cir.1970) ("both parties now agree that removal jurisdiction exists. The facts are admitted showing, among other things, that release of water here ordered by the Corps of Engineers under authority of the Secretary of Defense so that GRDA acted under an officer of the United States within the meaning of § 1442(a)(1)."); Clio Convalescent Ctr. v. Mich. Dep't of Consumer & Indus. Servs., 66 F. Supp. 2d 875, 876 (E.D.Mich.1999) (finding state actor entered into agreement with Sec retary of Health and Human Services to ensure compliance with federal law and, citing federal regulations, it acted as a state agent by implementing federal regulations pursuant to federal statutory, regulatory, and contractual obligations); with Vang v. Healy, 804 F. Supp. 79, 82 (E.D.Cal.1992) (holding that Director of Social Services was not a person acting under an officer of the United States, but instead, was being sued for a final administrative decision on the plaintiffs' state law claims and according to a state statutory scheme); N. Colo. Water Conservancy Dist. v. Bd. of County Comm'rs of Grand County, 482 F. Supp. 1115, 1118 (D. Colo.1980) (explaining that in Colorado, counties are political subdivisions of the state and only have powers granted to them by the legislature and that the Clean Water Act does not constitute a grant of authority to "political subdivisions of another sovereign" simply because it uses those agencies while pursuing goals). Cf Dalrymple v. Grand River Darn Auth., 932 F. Supp. 1311, 1313 (N.D. Okla.1996) (explaining that just because the defendant dam authority was licensed by a federal agency, it was not transformed into a government contractor such that it enjoyed immunity). [34] K.S.A. §§ 19-101, 19-103. [35] Alsup, 435 F.Supp.2d at 845; see also Atlantic Richfield Co., 488 F.3d 112, 124. [36] The Court notes that in its brief, the Board conflates the "arising under" requirement of § 1442(a)(1), and the colorable defense requirement. The Court discusses whether the Board or Guimond would have a colorable federal defense under the Westfall Act in the next section. [37] 445 F. Supp. 384 (D.Kan.1977). [38] Id. at 395-96. [39] Id. at 396. [40] Id. [41] Id. at 406. [42] See 28 U.S.C. § 2671. The Board's reliance on United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 104 S. Ct. 2755, 81 L. Ed. 2d 660 (1984), is similarly inapposite. Again, that case involved a suit against the United States for regulatory enforcement activities by the FAA. Further, it supports the Court's conclusion that there is a regulatory distinction between designated representatives and those who are merely certified or licensed pursuant to regulation. See infra note 47 and accompanying text. [43] The Court gives little weight to the affidavit of William Raymond Twa, Jr., attached to plaintiff's motion to remand as Exhibit 5. To the extent he opines on the meaning of federal regulations, the Court finds it constitutes a legal conclusion and in at least one instance, he asserts a legal conclusion that is inapposite to Supreme Court case law. (Doc. 9, Ex. 5 at 4 ¶ 16); Varig Airlines, 467 U.S. at 816, 104 S. Ct. 2755 ("The FAA certification process is founded upon a relatively simple notion: the duty to ensure that an aircraft conforms to FAA safety regulations lies with the manufacturer and operator, while the FAA retains the responsibility for policing compliance."). [44] 91 F.3d 1424 (11th Cir.1996). [45] 49 U.S.C. § 44702(d)(1)(B); see also § 44702(a). [46] Magnin, 91 F.3d at 1428; accord AIG Europe (UK) Ltd. v. McDonnell Douglas Corp., No. 02-8703-GAF, 2003 WL 257702, at *2-3 (C.D.Cal. Jan. 28, 2003) (allowing removal for employees who allegedly performed negligent type, production, and airworthiness certifications under the general supervision of the FAA); but see Charlima, Inc. v. United States, 873 F.2d 1078, 1079 (8th Cir.1989) (finding that designated representative of FAA is not a federal employee under the FTCA); Britton v. Rolls Royce Servs., No. C XX-XXXXXX SI, 2005 WL 15622855, at *4 (N.D.Cal. June 30, 2005) (granting remand because the complaint did not specifically identify the defendant as a DMIR, nor allege that the issuance of an airworthiness certificate was the proximate cause of the accident). [47] 14 C.F.R. 183.1; see also yang Airlines, 467 U.S. at 807, 104 S. Ct. 2755 ("The representatives act as surrogates of the FAA in examining, inspecting, and testing aircraft for purposes of certification. 14 CFR § 183.1."). [48] 14 C.F.R. §§ 183.21-183.33. [49] But cf. Charlima, 873 F.2d at 1081-82 (finding that a designated airworthiness representative is not a federal employee under the FTCA because the FAA does not exercise the requisite control of day-to-day operations and contending and citing legislative intent). [50] 48 Fed.Reg. 16176 (Apr. 14, 1983) (codified at 14 C.F.R. Part 183). This amendment to Part 183 established the designated airworthiness representative (DAR) as a new category of persons who could be designated as FAA representatives and perform certain certification functions. In expanding the "designee system" within the FAA, it states that it "is necessary to expand the designee program to respond to the many requests for FAA examination, inspection, and testing services relating to certification functions that were not within the very limited scope of designations previously authorized by Part 183." Id. [51] See, e.g., Magnin, 91 F.3d at 1427; Alsup v. 3-Day Blinds, Inc., 435 F. Supp. 2d 838, 853 (S.D.Ill.2006). [52] Osborn v. Haley, ___ U.S. ___, ___, 127 S. Ct. 881, 894, 166 L. Ed. 2d 819 (2007). [53] Id. at 900 n. 17. [54] 28 U.S.C. § 2679(d)(3). [55] To the extent the defendants may assert that their federal defense is that they complied with federal regulations governing inspection and certification, the effort also fails. Nowhere in any of the amended pleadings do plaintiffs allege that the negligent certification and inspection is a result of the failure to adhere to federal regulations. The only reference to the FAA is to the fact that Guimond was certified by the agency. The negligent conduct alleged is that based on his experience and knowledge, he should have detected certain problems with the vacuum pump at issue. [56] 546 U.S. 132, 126 S. Ct. 704, 163 L. Ed. 2d 547 (2005). [57] Id. at 711 (citations omitted).

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2330177/

357 F. Supp. 2d 1036 (2004) Steven MANNING, Plaintiff, v. Robert BUCHAN; Gary Miller; and United States of America, Defendants. No. 02 C 372. United States District Court, N.D. Illinois, Eastern Division. December 3, 2004. *1038 Leonard Stephen Becker, Law Offices of Leonard S. Becker, Arthur R. Loevy, Jonathan I. Loevy, Jonathan A. Rosenblatt, Loevy & Loevy, Kenneth N. Flaxman, Kenneth N. Flaxman, P.C., Kurt Henry Feuer, Loevy & Loevy, Raymond J. Smith, Attorney at Law, Chicago, IL, for Plaintiff. AUSA, Jonathan C. Haile, Eileen Ellen Rosen, Scott J. Jebson, Penelope Moutoussamy-George, Arnold Hyunguk Park, Mara Stacy Georges, Michael David Jacobs, Jacqueline Ann Thursby, Thomas M. Burnham, Thomas R. Weiler, David H Capizzi, Mark Christopher Egan, Norton, Mancini, Weiler & DeAno, Chicago, IL, for Defendants. *1039 MEMORANDUM OPINION AND ORDER KENNELLY, District Judge. In this Memorandum Opinion, the Court rules on a number of disputed matters preliminary to the trial of the case, set to begin on Monday, December 6, 2004. A. Plaintiff's fourth motion to compel 1. Defendants asserted the attorneyclient and work product privileges with regard to documents in the files of the United States Attorney's Office regarding dealings with Thomas Dye. The defendants have provided a privilege log containing forty items.[1] The defendants relied on the approval of Assistant United States Attorney Canella Henrichs in support of a defense of qualified immunity with regard to Manning's claim his Sixth Amendment rights were violated by the defendants' decision to have an informant elicit information from him. The Court accepted this defense on summary judgment. Manning argues that by raising the immunity defense based on advice of counsel, defendants waived the privileges in their entirety. The Court rejects that argument. It is true that the attorneyclient privilege is waived if the defendant asserts a defense that puts the attorney's advice at issue. See, e.g., Garcia v. Zenith Electronics Corp., 58 F.3d 1171, 1175 (7th Cir.1995). But as a general rule, the scope of the waiver extends only to the subject matter of the communications that were made to obtain the advice. See, e.g., Motorola, Inc. v. Vosi Technologies, Inc., No. 01 C 4182, 2002 WL 1917256, *1 (N.D.Ill. Aug. 19, 2002). Defendants expressly waived the privilege with regard to the communications that the Federal Bureau of Investigation made to Henrichs in seeking her approval and allowed inquiry of Henrichs regarding the information given to her in connection with the request to approve the recording of Dye's conversations with Manning. But they did not— either expressly or by implication—waive the privilege for matters unrelated to that particular request for advice. The Court reviewed the privilege log and, at the hearing on this motion, directed the defendants to produce for in camera inspection one item from the list. Defendants have done so and have also produced it to Manning's counsel. 2. Manning asks for production of Henrichs' so-called "grand jury file" regarding Dye's testimony before a federal grand jury regarding Manning. Manning contends the testimony was perjurious. Defendants have resisted production based on Federal Rule of Criminal Procedure 6(e). The Court has previously ruled on this matter. Manning has failed to show the "particularized need" required to permit disclosure of this material. See, e.g., United States v. Sells Engineering, Inc., 463 U.S. 418, 443, 103 S. Ct. 3133, 77 L. Ed. 2d 743 (1983). 3. Manning's request for any informant / cooperating witness file on Curtis Stover is denied as moot, based on the defendants' representation that there is no such file. 4. With regard to Manning's request for production of any Drug Enforcement Administration documents memorializing or summarizing statements given by Ronald Tyrakowski following his arrest in the summer of 1991, the Court finds that such documents were requested and that the defendants' imposition of a limitation on its search for records to those in the hands of the United States Attorney's Office and the FBI was, in this particular instance, *1040 unwarranted. Any such statements are to be produced forthwith, and in any event by no later than 9:00 a.m. on December 6, 2004. B. Plaintiff's motion for leave to file amended complaint to conform legal theories to proof at trial The Court granted summary judgment against Manning on his § 1983 claims, as he effectively abandoned them in response to defendants' motion, making no argument to rebut defendants' contention that they had not acted under color of law. Manning, having belatedly discovered that this leaves him without any claim other than the RICO claims on which he will be entitled to attorney's fees if he prevails, has now moved to file a third amended complaint reasserting the § 1983 claim. This motion is misnamed. It is not truly a motion for leave to amend—the second amended complaint already included § 1983 claims. Rather, it is a motion for reconsideration. The motion is denied. Reconsideration is appropriate, generally speaking, only when the Court overlooked or misunderstood something; it is an inappropriate way of asserting arguments that were overlooked by a party to whom the arguments were then available. See, e.g., Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990); Quaker Alloy Casting Co. v. Gulfco Inds., Inc., 123 F.R.D. 282, 288 (N.D.Ill. 1988). C. Plaintiff's motion to compel production of all evidence relating to conjugal visits to Thomas Dye in the FBI offices At a deposition taken on October 18, 2004, Thomas Dye testified that while he was a prisoner at the Metropolitan Correctional Center and working with the FBI as a cooperating witness against Manning in 1989 and the early 1990's, he was permitted by agents Buchan and Miller to have numerous unsupervised conjugal visits in the FBI's Chicago office. In a motion filed six weeks later (on the day after Thanksgiving, when the Court was closed, and just 10 days before trial), Manning asks the Court to order defendants to produce any and all documents relating to any such visits. The defendants deny that any such visits occurred, contending that Dye is making it up. Manning requests production of all visitors' logs for an unspecified period. The request is denied. The Court agrees that material reflecting such visits would be relevant if it existed. But in view of the burdensomeness of the request—it would require a monumental search for, and of, voluminous records for a long but unspecified period of time—the Court finds that Manning waited too long to pursue the issue. To order the search to be done at this time would likely derail defendants' trial preparation to a significant extent. The Court is unwilling to take that step on a matter that was, or reasonably should have been, obvious to Manning's counsel at the moment Dye testified about the purported conjugal visits. D. Plaintiff's motion to reconsider adverse ruling on Sixth Amendment claim The Court denies Manning's motion to reconsider the Court's qualified immunity finding on Manning's claim of violation of his Sixth Amendment rights. Most of Manning's arguments in the motion were made and rejected at the time of that ruling and thus are not an appropriate subject for reconsideration. In addition, the Court has reviewed the entirety of the deposition of AUSA Henrichs (whose approval of the recording of Dye's conversations with Manning formed the basis for the qualified immunity ruling), and finds that Manning was not, contrary to his *1041 argument, hampered in inquiring of Henrichs regarding the information she was given by the FBI that led to her approval of the recording of Dye's conversations with Manning. The Court rejects the remaining arguments made by Manning for the reasons stated in open court when this motion was argued. E. Defendants' motions in limine 1. Impeachment of Dye Defendants want to prevent Manning from impeaching Dye with any information that was unknown to defendants Miller or Buchan or that was not presented at Manning's trials. They have offered no legal basis for limiting impeachment in this manner. That is not to say that everything that Manning might use is otherwise proper impeachment, but any such issues will have to be taken up on an item-byitem basis. The Court agrees with defendants that statements made by the United States Attorney's Office about Dye's credibility do not constitute proper impeachment of Dye and are not admissible against Miller or Buchan on any other basis. It is conceivable they may be admissible for some proper purpose against the government, but because the FTCA claims against the government are being tried to the Court, not the jury, that subject can be deferred until a later point during the trial. The parties are advised to bring the matter to the Court's attention at some appropriate time. 2. Qualified immunity issues Defendants Buchan and Miller seek to preclude evidence of various matters on which they say they are entitled to qualified immunity and which, they say, the Court "refrained from resolving" on summary judgment. In this regard, the Court incorporates an order we entered clarifying the summary judgment ruling after we had reviewed this part of defendants' motions in limine: The Court has reviewed the motions in limine filed by the parties. Defendants' motion includes a contention that in dealing with the defendants' summary judgment motion, the Court "refrained from resolving qualified immunity issues" on what defendants characterize as five Brady v. Maryland claims made by plaintiff. See Dfdts' Mots. In Limine at 2. This contention reflects a misconception regarding the claims made by the plaintiff in this case, and a misunderstanding of the summary judgment motion and the Court's ruling. This order is entered to correct the misconception and misunderstanding. First, the plaintiff has not made, as defendants' argument suggests, a series of mini-claims for relief, each arising out of a particular bit of evidence claimed to have been concealed in connection with the plaintiffs convictions in Illinois for murder and in Missouri for kidnapping. Rather, with regard to each trial, the plaintiff has made, as referenced at pages 5-6 of the Court's summary judgment ruling, a single Bivens claim against the individual defendants and a single malicious prosecution claim against the government (as well as parallel RICO claims). In the Bivens claims, the plaintiff contends that the defendants, by using various inducements, fabricated inculpatory evidence that was used at the trials and concealed a variety of matters that are said to have been exculpatory or impeaching. It is a single claim for each trial, not a constellation of separate sub-claims. Second, summary judgment may be sought only as to a claim, not as to a bit or piece of a claim. See generally JamSports and Entertainment, LLC v. Paradama Productions, Inc., 336 F. Supp. 2d 824, 845 (N.D.Ill.2004) (citing *1042 Biggins v. Oltmer Iron Works, 154 F.2d 214, 217 (7th Cir.1946), and other cases). But even were such an approach proper, the defendants' summary judgment memorandum, even read liberally, did not ask the Court to grant summary judgment on qualified immunity as to the particular pieces of evidence catalogued by defendants in their motion in limine. The legal discussion of the plaintiffs Brady claims in the defendants' summary judgment memorandum appears at pages 20-25. Nothing in that discussion reasonably may be construed as asking the Court to grant "summary judgment" on the supposed discrete "claims" arising from the concealment of benefits to Mammolito; benefits to Dye; a statement that Dye attributed to Tyrakowski; a letter from Mrs. Pellegrino; and the act of moving Dye close to Manning. Rather, the defendants addressed the plaintiffs' claims as the Court did in its ruling, arguing that "Manning lacks any concrete evidence showing that the defendants coached and paid Dye and Mammolito to testify falsely against Manning, and then intentionally withheld this information from the prosecution in bad faith." Dfdts' SJ Mem. at 22. The Court rejected that argument in holding that a reasonable fact finder could determine that the defendants had done just that (pages 7-11 and 13-20 of our ruling), and in holding that defendants were not entitled to summary judgment on qualified immunity (pages 11-13 and 20-21). It is noteworthy that in contending that the Court "refrained" from ruling, defendants cite only their reply brief on summary judgment, not their opening brief. Dfdts' Mot. In Limine at 2. Arguments made only in a reply brief are forfeited. Third, the Court did not, in fact, refrain from ruling on the defendants' request for summary judgment on qualified immunity as to the Brady claims. The defendants seem to want to think that the Court ruled only on the claims of "fabricating evidence." Not so. First, our discussion of the Illinois case clearly described Manning's claim as a claim "that the defendants fabricated the key evidence against Manning and then concealed this fact from prosecutors and Manning's defense at trial." Ruling at 10 (emphasis added). We denied defendants' request for summary judgment on the merits of that claim, id. at 11, and made reference to that same description in denying qualified immunity. Id. at 12-13. Though our discussion regarding the Missouri case was not quite as crystal clear, the Court considered the claim as the plaintiff has always characterized it: fabrication of evidence and concealment of the fabrication from prosecutors and the defense. In short, the Court did not "refrain from resolving" the defendants' request for summary judgment on qualified immunity on the Brady claim; rather we denied that request for the reasons stated in our ruling. Order of Nov. 18, 2004. Whether or not defendants might be entitled to qualified immunity on various aspects of Manning claim—a matter that the Court can, of course, assess at trial on a motion under Federal Rule of Civil Procedure 50(a)—that would provide no basis for excluding these matters from evidence. To decide Manning's claims, the jury will be required to assess the believability of Dye and Mammolito's accounts so that it can, among other things, determine whether they were induced to fabricate evidence. Defendants' concern that the jury be prevented from finding liability based on matters that were disclosed to Manning's defense or the non-disclosure of which was not attributable to them can, the Court believes, be handled by appropriate instructions *1043 to the jury, which we will leave it to the parties to propose. 3. Evidence of Sixth Amendment violation The Court agrees with the defendants that it would be improper for Manning to introduce evidence reflecting that Buchan and Miller violated his Sixth Amendment rights by using Dye and Sylvia Herrera to elicit information from him; the Court has barred this claim on qualified immunity grounds. The Court also agrees with Manning, however, that he is likely to need to be able to explain that the improper admission of this evidence is why his Missouri conviction was overturned. Both sides' concerns may be accommodated. Manning will be permitted to elicit that the convictions were overturned because the Eighth Circuit held that the use in evidence of these matters violated Manning's constitutional right to counsel. The jury may be instructed at that time, and/or at the conclusion of the case, that this forms no part of the claims made against Miller or Buchan in this case. The Court will leave it to the parties to propose appropriate instructions. 4. Heldenbrand photographic lineup Defendants seek to bar Manning from arguing that photographic spreads that were shown to Carolyn Heldenbrand, a prosecution witness at Manning's Missouri trial, were unduly suggestive or otherwise unlawful. They argue that a claim based on a misleading identification process cannot give rise to a civil suit for violation of the accused person's constitutional rights. The Seventh Circuit appears to have determined, as defendants argue, that a plaintiff cannot maintain a claim against a law enforcement officer for violation of constitutional rights based exclusively on the officer's use of a suggestive identification procedure. See Newsome v. McCabe, 319 F.3d 301, 305 (7th Cir.2003). Rather, a constitutional claim for damages arises in the identification context only if the officer conceals information tending to undercut the identification from prosecutors or the defense. See Newsome v. McCabe, 256 F.3d 747, 749 (7th Cir.2001). In response to defendants' motion in limine, Manning has proffered a chain of circumstantial evidence which, if established, would permit a jury reasonably to find that defendant Buchan did more than simply show Heldenbrand suggestive photographic displays, that is, that he affirmatively encouraged or prompted Heldenbrand to identify Manning, and then failed to disclose this to Missouri prosecutors or Manning's defense. Res judicata does not bar this claim, as it was not presented (and did not need to be presented) to the Missouri or federal habeas courts; if the claim is proven, the defendants are not entitled to qualified immunity, as Newsome holds, see id. at 752-53; and the defendants do not get off the hook based on a prosecutor's decision to use the identification without knowledge of the concealed information. Jones v. City of Chicago, 856 F.2d 985, 994 (7th Cir.1988). For these reasons, the Court rejects defendants' request to bar evidence regarding the lineup. It will be necessary, however, to instruct the jury at some appropriate point that Manning's claim, insofar as it is based on the Heldenbrand identification, is based on withholding of evidence, not the mere suggestiveness of the photographic arrays that were used. The Court will leave it to defendants to propose an appropriate limiting and/or final jury instruction. 5. Expert testimony of Gary Wells The Court injects the defendants' request to bar the testimony of Gary Wells, a professor of psychology who *1044 will testify as an expert in the area of eyewitness identifications. According to defendants, Wells will testify that the photographic arrays shown to Carolyn Heldenbrand were highly suggestive and that a well trained law enforcement officer would have known that the procedure was improper. As Manning points out, there is more to Wells' testimony than this. Among other things, Wells will testify regarding Heldenbrand's susceptibility to suggestion. This and other opinions he will offer are relevant even under the withholding-information theory of liability discussed in the preceding section of this Memorandum Opinion— among other reasons, Manning is entitled to try to refute the notion that Heldenbrand's identification of him was genuine and legitimate. The Court also rejects defendants' argument that Wells' failure to perform laboratory testing renders his opinions inadmissible under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). Rule 702 and Daubert both require, among other things, that an expert's testimony be based on reliable principles and methods, applied reliably to the facts. See, e.g., United States v. Conn, 297 F.3d 548, 555 (7th Cir.2002). But the Seventh Circuit has made it clear that an expert is not required to substantiate his opinions through testing particularized to the specific case if the science he is using has already been shown experimentally to be reliable—which is what Wells will testify. See United States v. George, 363 F.3d 666, 672-73 (7th Cir.2004). The primary purpose of the Rule 702 / Daubert inquiry is to ensure "`that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.'" Bryant v. City of Chicago, 200 F.3d 1092, 1098 (7th Cir. 2000). It appears to the Court that Wells' expected testimony meets this standard, and thus we reject defendants' Daubert / Rule 702 challenge. Defendants will, of course, be free to inquire on cross-examination regarding the feasibility of experimental corroboration, Wells' use of it in other cases, and his non-use of it in this case. "Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Daubert, 509 U.S. at 596, 113 S. Ct. 2786. Finally, the Court agrees with plaintiff that Wells has sufficient background and expertise in the field to testify regarding law enforcement procedures regarding identifications. He is not required to have worked as a law enforcement officer, investigator, or prosecutor as a prerequisite to testifying on that topic. 6. Expert testimony of Michael Lyman Manning intends to call Michael Lyman, a professor of criminal justice, to testify regarding a series of opinions concerning defendants' use of Thomas Dye. In his report provided pursuant to Federal Rule of Civil Procedure 26(a)(2), Lyman listed his opinions as follows: 1. Defendants were aware or should have been aware that Dye was unreliable but still chose to utilize him as an informant. 2. Defendants in this case knew or should have known that Dye's statements were false regarding Manning's "confession" of the Pellegrino murder. 3. Defendants in this case knew or should have known that Mammolito's statements about Manning's involvement *1045 in the Missouri kidnapping were false. 4. Defendants in this case ignored nationally accepted informant management guidelines by "prepping" informant Dye and providing him with case files with which to memorize aspects of the case. 5. Defendants in this case inappropriately offered informant Mammolito and Dye favors and inducements in exchange for their testimony against Manning. 6. Defendants in this case ignored convincing evidence that would have established Manning's innocence. 7. Defendants in this case, knew or should have known that Manning was represented by an attorney, and that his 6th Amendment protections under the Constitution would be violated by prompting Dye and Herrera to discuss his pending criminal charges. Def. Mot. In Limine, Ex. 3 at 4. Defendants argue that these matters are not the appropriate subject of expert opinion, because they amount to comments on intent and credibility and the resolution of disputed fact issues. Manning contends that Lyman is simply making factual assumptions based on the record and giving expert opinions about proper law enforcement practice based on those assumptions. But it appears from the above, as well as the text of Lyman's report, that at least some of his opinions amount to assessing the evidence and making "findings" regarding the inferences and conclusions to be drawn. It is highly doubtful whether such testimony is admissible under Rule 702. Lyman is not, strictly speaking, giving opinions on witness credibility (which, as a general rule, are improper, see, e.g., Goodivin v. MTD Products, Inc., 232 F.3d 600, 609 (7th Cir.2000)). But the Court has a hard time seeing how his apparent conclusions about what the evidence showed and his resolution of contested issues are helpful to the jury, or what the "reliable principles and methods" are that led him to those conclusions. These elements are prerequisites to admissibility under Federal Rule of Evidence 702. See Fed.R.Evid. 702; see also, e.g., United States v. Young, 316 F.3d 649, 657 (7th Cir.2002). In his response to defendants' motions in limine, Manning points out that some aspects of Lyman's testimony, regarding proper police practices, do not constitute an assessment of what the evidence shows or an opinion on credibility. See PI. Resp. at 21. And at oral argument on the motion, Manning's counsel gave an outline of Lyman's testimony phrased in a manner that might make its admissibility less suspect. But the proffer was somewhat vague. As a result, the Court does not have a good enough handle on Lyman's actual expected testimony to assess its admissibility. Before Lyman's testimony can be offered at trial or mentioned before the jury, Manning will be required to make a more particularized proffer of how he expects Lyman to testify, so that defendants can respond and the Court can make a definitive ruling. This should be done as close to the start of trial as possible. 7. Credibility finding regarding Buchan Manning does not oppose defendants' motion to bar introduction of evidence that in 1995, another judge of this Court (Judge Shadur) made an adverse credibility finding regarding defendant Buchan following a hearing in an unrelated case. The motion is granted. 8. Prior discipline of Miller Manning says that after he filed this suit, he received at the Missouri prison *1046 where he was then housed a series of postcards taunting him about the case. See PL Summ. Judg. Ex. 86. Miller was disciplined by the FBI in the mid-1980's for conduct involving harassment of a fellow FBI agent named Donald Rochon. The harassment of Rochon, which involved other FBI agents besides Miller, included sending anonymous hate mail. Manning argues that Miller's participation in the harassment of Rochon is admissible evidence of modus operandi which can be offered in an effort to show he sent the postcards to Manning. See, e.g., United States v. Ingraham, 832 F.2d 229, 231-33 (1st Cir.1987). Defendants say that all Miller did vis-a-vis Rochon was to mail coupon reply cards to magazine publishers with Rochon's name on them. If that is correct, the Rochon evidence is inadmissible, because it does not tend to establish a modus operandi that has any bearing on the issues in the ease. But Manning contends that Miller may well have done more than this— Judge Shadur's decision in the Rochon case references a memo that documents "Miller's confession to many of the incidents" regarding Rochon. Rochon v. Dillon, 713 F. Supp. 1167, 1170 (N.D.Ill.1989). The Court previously reviewed in camera Miller's "headquarters" and "field office" FBI personnel files and directed production of a number of documents, including documents regarding the imposition of discipline in the Rochon matter. After receipt of the motion in limine, the Court again reviewed those files and saw no statement or confession of the type referenced by Judge Shadur. But we did see a letter, which we had previously overlooked, indicating the existence of a separate file regarding an administrative inquiry regarding Miller on the Rochon matter. This file, it appears, was not produced by the defense. There was no legitimate justification for its non-production. At the hearing on the motion in limine, defendants' counsel took the position that because Manning had not specifically identified the separate file, it was not produced. Counsel might as well have said, "Catch-22"; to be termed a "personnel" file. The administrative inquiry files ought to have been produced for in camera inspection. At this late juncture, the Court is not going to filter documents that defendants should have produced long ago. Defendants are directed to produce to Manning's counsel all documents held by the FBI relating to the administrative inquiry of Miller, including any statements Miller made in the course of that inquiry or otherwise. The production is to be made forthwith, and in any event by no later than 9:00 a.m. on Monday, December 6.[2] These documents may be used by plaintiff only for the purpose of this lawsuit and are to be viewed by Manning's counsel only, and not disclosed to Manning or anyone else, pending ruling by the Court on the admissibility of the matter at trial. If Manning's counsel propose to inquire about this topic at trial, they must first provide the Court with copies of the relevant documentation and seek a ruling regarding admissibility. F. Information provided by confidential sources Manning seeks to bar the defendants from offering evidence regarding several crimes of which he was allegedly suspected based on information supplied by confidential informants. During discovery, documents were produced by defendants reflecting that various unnamed sources had provided information implicating Manning *1047 in several murders and other criminal activity. Manning was not charged with any of those crimes. During the course of discovery, Manning moved to compel the defendants to identify the informants. In support of his request, Manning argued that he needed the information to show the defendants had engaged in a pattern of using informants to try to set him up for crimes he had not committed, and also because he was concerned the defendants might argue the information from the undisclosed persons in some way justified their actions that are challenged in this case. In opposing disclosure, the federal defendants—all of them—relied on the informer's privilege, which bars disclosure of the identity of confidential government informants unless the party seeking disclosure shows his need for the information outweighs the need for confidentiality. See Fed. Def. Resp. to PI. Suppl. to Mot. to Compel at 2; Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957); United States v. Herrero, 893 F.2d 1512, 1525 (7th Cir.1990); Dole v. Local 1942, IBEW, 870 F.2d 368, 372 (7th Cir. 1989). The defendants argued that "the potential benefits of disclosure [to Manning] are minimal." Id. They argued that Manning's contention that some or all of the informants might have been encouraged to lie was speculative, and in any event did not establish the relevance of the informers' identities with regard to the claims against the defendants made in this case. Id. With regard to Manning's second argument, the defendants replied that "[information which the FBI had received regarding Manning's involvement in other crimes may well be relevant—not to prove that Manning committed the other crimes, but rather for the limited purpose of explaining why the FBI took actions which it did, and especially to rebut arguments that specific actions were improperly motivated." Id. at 3-4. Defendants argued, however, that disclosure would create "a substantial risk of harm," id. at 2, as "Manning is on tape making an agreement with [Thomas] Dye to kill or have killed witnesses in Dye's case," and "[i]t is entirely possible that Manning's objective in bringing this case is to learn the identity of the individuals who have provided information against him to the FBI." Id. at 3. Defendants also indicated that Manning's motion appeared to be a veiled request to obtain a ruling that such information was inadmissible at trial, and in response defendants urged the Court not to make such a ruling at that time. Id. at 3. On September 8, 2004, the Court issued a Memorandum Opinion in which it ruled on Manning's motion to compel. Manning v. Dye, No. 02 C 372, 2004 WL 2032750 (N.D.Ill. Sept. 8, 2004). Aside from three informants whose identity had already been disclosed in one way or another, the Court declined to compel the defendants to identify the confidential informants. With regard to Manning's contention that he needed the identities to try to prove a pattern of prodding witnesses to implicate him falsely in various crimes, the Court indicated that the claim was speculative and that under controlling authority, the informer's privilege "`will not yield to permit a mere fishing expedition, nor upon bare speculation that the information may possibly prove useful.'" Id. *2 (citing Dole, 870 F.2d at 373). We also noted that some of the informants' statements had been made well after Dye agreed to inform on Manning, and that Manning's motion papers reflected he had obtained the identification of other informants through discovery, which the Court felt "ought to prove an adequate data base for him to mine to attempt to support his theory." Id. *4 n. 2. *1048 On Manning's second argument for disclosure, the Court concluded it was speculative whether the defendants would attempt to use the informants' information at trial, and that even if they did, it was unclear whether they would be able to so, as it might be "unfair to permit them to use the privilege as a sword rather than as a shield." Id. at *8. For this reason, the Court held that Manning's claim of need did not outweigh the interest in confidentiality. Id. On September 3, 2004, just before the Court entered its Memorandum Opinion on the informer's privilege issue, Manning filed a second motion addressed to the point. In this motion, he argued that the close of fact discovery was fast approaching and that he would no longer have the opportunity to conduct fact discovery even if the Court ordered disclosure of the informants' identities. He therefore contended that the defendants should be held to their claim of privilege and should be precluded from using the information about prior alleged criminal activity provided by the informants whose identity the defendants had resisted disclosing. Manning also indicated at oral argument, and later (more fully) in writing, that he sought exclusion of the evidence under Federal Rule of Evidence 403. A trial in which the defendants were permitted to declare before the jury that unnamed sources had implicated Manning in a variety of violent crimes, including several murders, would be an adversary proceeding in name only. It would be grossly unfair to require Manning to abide the defendants' use of the informants' claims without any ability to reply effectively. Though he obviously could take the stand himself and deny the informants' claims, that alone does not give him a fair opportunity to rebut the defendants' evidence. The claimed significance of the information stems from the contention that it was provided to the government by supposedly believable sources. Without knowing the identity of the sources, Manning is completely unable to challenge either part of that claim—that the sources actually provided the information, and that there was reason to believe them. That is why the defendants' contention that Manning is not harmed, because "[t]he information from the sources has been released," see Def. Resp. at 5, is without merit—Manning has no ability to challenge the defendants' reliance on the information without the identities of the sources who provided the information to the government.[3] Ordinarily when a party asserts a privilege to preclude its opponent from obtaining information in discovery, it relinquishes the ability to use that information in its favor at trial. See, e.g., United States v. Workman, 138 F.3d 1261, 1264 (8th Cir.1998) (attorney-client privilege); Harris v. City of Chicago, 266 F.3d 750, 754 (7th Cir.2001) (Fifth Amendment privilege); Santelli v. Electro-Motive, 188 F.R.D. 306, 308 (N.D.Ill.1999) (psychotherapist-patient privilege). The rationale is that it is unfair to allow a party to make selective use of information helpful to him while blocking inquiry into other aspects of the information that might be unhelpful. See, e.g., Workman, 138 F.3d at 1263. The same considerations apply here. See Jones v. United States, 9 F. Supp. 2d 1119, 1139 (D.Neb.1998) (applying the same principle following assertion of informer's privilege). Jones involved a claim for damages arising from the wrongful disclosure of tax return information by an IRS agent to a confidential informant. The *1049 court sustained the defendant's assertion of the informer's privilege, and as in this case, "at the government's insistence ... prohibited the plaintiffs from discovering the identity of the informant." Id. For this reason, the court precluded the defendant from arguing that the plaintiff had failed to prove who had received the disclosure, stating that the defendant could not use the privilege as both a shield and a sword. Id. The same is true in this case. The defendants—again, all of them[4]—resisted discovery of the basic information that Manning needed to attempt to refute the contention that the confidential informants' information contributed to their decision to place an informant (Dye) with Manning in the Cook County Jail, their belief in Dye's attribution of incriminating disclosures to Manning, and various other matters at issue in this case. Defendants seem to think that having succeeded in sustaining the privilege, they now have free rein to use the unnamed informants' information for whatever purpose they believe is appropriate. The defendants, who cite no authority for this proposition, have it backwards. Having succeeded in sustaining the privilege and in stymieing Manning's ability to challenge their reliance on the informants' information, defendants have relinquished the right to use that information for their own benefit at trial. Finally, the Court rejects the defendants' argument that because Manning could have tried to show that his need for the informants' identities outweighed the interest in confidentiality—and "still could," the defendants argue in a brief filed after the close of fact discovery, see Def. Resp. (filed Oct. 15, 2004) at 1—he should be prevented from seeking to bar the use of the informants' information. Manning did make that very argument, and the defendants persuaded the Court that he was wrong. The defendants surely were aware of the possible consequences of their successful assertion of the privilege, see Transcript of July 8, 2004 at 29-30, and now that they have succeeded, they must bear those consequences. Reversal of the Court's ruling after defendants suggested, on October 15, that Manning try again would have required an extended continuance of the trial, a course that the defendants are not free to dictate by requiring Manning to try again after he lost the first time. Even if the evidence from the unnamed informants were not subject to exclusion as a matter of privilege law, and even if (as the defendants erroneously contend) the privilege had been asserted only by the government, the Court still would preclude defendants from relying on information from sources whose identity they have chosen to protect. Manning argues in the alternative that admission of this information is barred by Federal Rule of Evidence 403. Under that Rule, the Court may exclude relevant evidence if its probative value is "substantially outweighed by the danger of unfair prejudice" or various other factors. Fed.R.Evid. 403. The information provided by the confidential sources may have probative value, but that value is nowhere near as high as the defendants claim. The defendants argue, in another context, that to determine the reasonableness of the defendants' actions, the jury "must evaluate the defendants' conduct in light of what the defendants knew at the time" of the events at issue, even if that involves wrongdoing by *1050 the plaintiff. Geitz v. Lindsey, 893 F.2d 148, 151 (7th Cir.1990). But what it appears defendants propose to do is to display before the jury the entirety of the informants' information and then step back and say that "all of this information was out there" and a fortiori justified their decision to place Dye in a cell with Manning, their reliance on the veracity of Dye's account of his conversations with Manning, and other acts at issue in the case. There has to be more to it than that. Without some showing—a showing that the defendants have made no effort to support by any evidence in the extensive record—that the defendants actually took the informants' accusations into account in taking a particular action, the probative value of the evidence is not terribly great. In addition, as Manning points out, there are other factors that adversely affect the probative value of the informants' accusations: they were in significant part uncorroborated, and none of them led to prosecution of Manning. Finally, and perhaps most importantly, exclusion of the matters as to which the defendants successfully resisted discovery will not preclude them from offering in evidence significant matters, equally prejudicial to Manning (though not unfairly so), that they say contributed to their decision making process: among other things, information from Curtis Stover regarding Manning's intention to harm witnesses; Anthony Mammolito's accusation that he, Manning, and others had kidnapped persons to carry out an extortion scheme; the fact that Manning was under indictment for those very kidnappings; the contention, made by informants (and perhaps others) that Manning had been involved in the murder of Thomas McKillip; and Manning's prior convictions. Viewed in the context of the evidence as a whole, the defendants' purported, and at this point unsupported, reliance on the confidential informants' accusations has some probative value, but not much. The other side of the balance tips strongly against admission of the evidence. There is a distinct danger that if the Court allowed in evidence the informants' claims that Manning was involved in as many as eight uncharged crimes, including several murders, the jury would unfairly disregard its obligations and find against Manning on the issue of liability based on improper grounds. But the more significant reason why the prejudice would be unfair is the one we discussed earlier: the fact that Manning, as the result of the successful privilege claim, has been hamstrung in attempting to refute the defendants' claim of reliance on the informants' information. The prejudice in this regard is no less unfair to Manning even if we were to adopt the defendants' fiction that it was only the government, not the individual defendants, that asserted the privilege. Unfair prejudice under Rule 403 does not depend on the fault of the opposing party. For these reasons, the Court grants Manning's motion to impose negative evidentiary consequences, as well as his request under Rule 403 to preclude the defendants from relying on claims of criminality made by unnamed confidential informants as explaining or justifying their challenged conduct. G. Plaintiff's motions in limine 1, 2 & 3. In his first three motions in limine, Manning seeks to preclude the defendants from offering evidence of his use of physical violence in 1983 on his then girlfriend, Marlies Vukelich; his juvenile arrests; and his former convictions.[5] De *1051 fendants argue that all of this evidence is part of the constellation of information that they relied upon in taking the actions that Manning challenges in this case. Unlike the information from the unnamed informants, Manning is not hindered by any actions of the defendants, or otherwise, in attacking any claim of reliance on this information. Assuming the defendants can establish a nexus, that is, that they took the particular information into account in taking some action that is placed at issue by way of Manning's claims, this evidence is admissible. See generally Geitz, 893 F.2d at 151. The Court cautions defendants, however, that absent evidence—such as testimony by one of the law enforcement officers whose conduct is challenged— tending to establish such a nexus, these earlier bad acts will be inadmissible for any substantive purpose. Without such a nexus, the evidence would not be relevant and would be highly and unfairly prejudicial; defendants are not entitled to spread all of the bad information about Manning on the record simply because it was "out there" at some point in time. Because of the danger of unfair prejudice to Manning if the prior bad acts are referenced before the jury but the necessary nexus is never shown, the Court will expect defense counsel to make an offer of proof satisfactory to the Court, outside the presence of the jury, before they mention or elicit evidence of these prior bad acts at trial. Defendants also argue that Manning's 1983 convictions, apparently for official misconduct and some unidentified criminal offenses relating to stolen automobiles, involved dishonesty and thus are admissible. Because more than ten years have elapsed since the dates of conviction and Manning's release from confinement, the convictions are inadmissible under Federal Rule of Evidence 609(b) unless the probative value of the particular conviction, "supported by specific facts and circumstances," substantially outweighs its prejudicial effect. Fed.R.Evid. 609(b). Defendants have not provided the Court with sufficient information about the particulars of the convictions to permit the Court to conduct the necessary balancing. If defendants actually wish to use the 1983 convictions for impeachment purposes, they must provide this supporting information before Manning takes the witness stand. 4. Information regarding a prosecutor In 1982, around the time Manning was indicted in the previously mentioned official misconduct search warrant for his apartment was executed, and a phonebook was found that contained the addresses of one of the prosecutors and the prosecutor's parents. Manning was confronted with this evidence at his deposition in the present case and stated that he was researching the background of the people who were prosecuting him; he denied any nefarious motive. This evidence was brought up at Manning's capital sentencing hearing in his Illinois murder case. Manning contends that admission of this evidence in the present case would be unfairly prejudicial, as it would suggest his dangerousness. The Court does not perceive this prejudice as unfair and thus rejects Manning's Rule 403 argument. But as with the evidence discussed in the previous section, unless the defendants can provide a nexus regarding their purported reliance on this information, it will be irrelevant and therefore inadmissible under Rule 402. The same offer-of-proof requirement established in the preceding section will apply to this evidence. *1052 5. References to Justice Patrick Quinn One of the prosecutors in Manning's Illinois case, Patrick Quinn, is now an Illinois Appellate Court justice. Justice Quinn will apparently be called to testify by the defendants at trial. Manning seeks to bar mention of the fact that he is a judge. The Court denies the motion. Defendants may elicit from Justice Quinn how he is currently employed, just as they would any other witness. But that is all: defendants may not dwell on the point and are not to address Justice Quinn as "Justice" or "judge" when questioning him. Defendants are also precluded from attempting, in testimony or argument, to draw an express or implied inference that the fact Justice Quinn now sits on the bench lends credibility to the prosecution of Manning in state court. In their response to Manning's motions in limine, defendants have hinted that this is exactly what they hope will occur; they say that the jury should hear that Quinn's "career did not founder after the Manning prosecution." Def. Resp. at 3. That would be an unfair inference. It is unlikely—and defendants have offered no evidence—that Justice Quinn's participation in the Manning case had anything whatsoever to do with his elevation to the bench. 6. Phone threat received by Missouri prosecutor Manning seeks to bar evidence that in 1991, one of the prosecutors in Manning's Missouri kidnapping case received a threatening phone message, to the effect that, "Rex, you're a f____ stat." The former prosecutor, when deposed in this case, disclaimed any basis to believe that Manning was responsible for the threat, and defendants have offered nothing to support such a claim. The motion is granted. The evidence is irrelevant, and even if it somehow might be considered relevant, its minuscule probative value is far outweighed by the risk of unfair prejudice to Manning. 7. Lost police badge found in the possession of Gary Engel The defendants claim that when arrested in 1985, Gary Engel, later a codefendant of Manning in the Missouri kidnapping case and a likely witness at trial, was found in possession of a police badge formerly belonging to Manning that Manning had reported was lost. Manning moves to exclude evidence regarding the badge. The Court denies the motion. The Court does not agree with defendants' contention that evidence regarding the badge is admissible to establish Manning's lack of credibility in the making of the report it was lost; under Federal Rule of Evidence 608(b), extrinsic evidence (such as evidence the badge turned up with Engel) is inadmissible to prove specific instances of misconduct to show a witness' untruthfulness. But the Court agrees with defendants that the badge is properly admissible to show the relationship between Manning and Engel, and that admission of the evidence would not unfairly prejudice Manning. 8. Joyce Pellegrino hearsay statement Manning was tried in Illinois for murdering James Pellegrino. Joyce Pellegrino, James' wife, told the FBI at some point that around a month before he died, James told her that if he turned up missing, she should "tell the FBI the name Steve Manning." Later, after further interviews, Mrs. Pellegrino stated that James had made the statement on the very day he was killed. In her original interviews with the authorities after reporting her husband missing, Mrs. Pellegrino had made no mention of any such statement, or of Manning. *1053 The Court agrees with Manning that James Pellegrino's statement is inadmissible hearsay if offered to prove the truth of the matter asserted. The erroneous admission of this statement at Manning's murder trial was part of the reason why the Illinois Supreme Court overturned his conviction. See People v. Manning, 182 Ill. 2d 193, 215-18, 230 Ill. Dec. 933, 695 N.E.2d 423, 433-34 (1998). The Court finds the Illinois Supreme Court's analysis persuasive. Any differences between Illinois' common law hearsay rule in this regard and Federal Rule of Evidence 803(3), relied upon by the defendants here, are immaterial. Defendants appear to argue that James Pellegrino's purported statement is admissible for a non-hearsay purpose, specifically, to show their reason for taking some action that is at issue in this case. See Def. Resp. at 5. As with the evidence discussed earlier, defendants will not be permitted to mention or adduce evidence of the statement for their proposed nonhearsay purpose unless they first make an offer of proof that they will be able to provide admissible evidence of a nexus between the statement and some action the defendants took that is at issue in this case. The Court will leave it to Manning, with this and other evidence adduced regarding defendants' reliance on hearsay concerning of his alleged bad acts, to propose a limiting instruction to be given to the jury. Manning offers another reason for excluding this evidence. He states, and defendants do not dispute, that defendants did not produce Mrs. Pellegrino's out-ofstate address to Manning until September 20, 2004, just ten days before the close of fact discovery. This did not give Manning sufficient time to attempt to subpoena Mrs. Pellegrino for a deposition. Though some time remained for expert discovery after the close of fact discovery, the time was short—just a little over two weeks— and counsel's attention and efforts were fully occupied during that period with the completion of expert discovery. In response, defendants argue that "[w]e did not provide [Mrs. Pellegrino's address] sooner because [Manning] did not request it." Def. Resp. at 5. Under Federal Rule of Civil Procedure 26(a)(1), defendants were required, "without awaiting a discovery request," to provide the name and, if known, the address and telephone number of anyone "likely to have discoverable information that the disclosing party may use to support its claims or defenses." Fed.R.Civ.P. 26(a)(1). It is not clear whether Mrs. Pellegrino would fall within this category—our sense is that the defendants propose to introduce James' statement to Mrs. Pellegrino via one of the defendants or another law enforcement agent, not via Mrs. Pellegrino herself—but in any event Manning does not rely on Rule 26(a)(1). Instead, he relies on interrogatories he served on the defendants. The Court does not see a particular discovery request that called on the defendants to produce the addresses of persons like Mrs. Pellegrino. The Court therefore rejects Manning's late-disclosure argument. 9. Mistaken reference to allegation of threat to Joyce Pellegrino Manning moves to bar one of defendants' expert witnesses, Michael Zopf, from making reference to a purported threat by Manning to Joyce Pellegrino. Defendants concede the reference was mistaken; there was no such threat. Manning's motion is granted. Defendants are directed to instruct to avoid making reference to this matter. 10. Barring claim that Manning was a suspect in the English murder Dye claimed Manning told him he had murdered Chuckie English in Elmwood *1054 Park in 1985. Defendant Miller testified at Manning's murder trial that Manning "is a suspect" in that murder (not, as Manning contends, that he "had been" a suspect). Manning states that the Elmwood Park police department's records of the investigation do not include any mention of Manning. Presumably that would not rule out the possibility that the FBI considered Manning a suspect in the murder, at least after Dye said Manning had implicated himself. But Manning wants a "judicial finding" that the FBI's files would have corroborated that Manning was not a suspect. His basis for this request is his contention that the defendants declined to produce their file on the English matter after Manning requested it in a letter dated July 19, 2004. See Pl.Ex. K. Though defendants claim they "fully responded to the discovery served by Manning in this case," see Def. Resp. at 5, the Court sees no evidence they responded to the English request other than by ignoring it. Manning also points to another series of events regarding the English matter that he contends puts him at an unfair disadvantage due to an apparent shift of position by the defendants. Manning served on the defendants interrogatories asking whether it was their position that he had murdered English, and asking for a summary of any evidence supporting their position. The government initially objected, saying "whether plaintiff committed the murder of Chuckie English is not at issue in the case," and the individual defendants disclaimed having any position on the matter. Manning also served a request for all documents relating to the English murder, but defendants objected on relevance grounds. Manning moved to compel answers to the interrogatories and document requests. At the hearing on the motion, defendants' counsel stated, without hedging, that "[w]e have told him [Manning's counsel] we are not contending that Mr. Manning committed the murder of Chuckie English." PI. Ex. J (Transcript of July 6, 2004) at 24. The Court went on to inquire, "is somebody on the defense side of the case going to stand up in front of the jury and say, he did it, or we think he did it, or there is reason to believe that he did it, or some reasonable facsimile of that?" Id. at 25. Defendants' counsel gave a similarly unequivocal response: "I can give a straight answer to that without any problem. No." Id. The Court thus proposed that Manning serve an amended interrogatory calling for this same information. Id. Manning took a slightly different tack, serving requests to admit. One of those was indistinguishable from what the Court had inquired: 3. You will not take any position at trial suggesting that Mr. Manning may have actually murdered Mr. English, nor will any witness on your behalf. Astonishingly, defendants' counsel who signed the response stated the opposite of what he had said in court just ten days earlier: RESPONSE: Denied. Based on the evidence we have seen to this point, it is our position that Manning may have actually murdered Mr. English. PLEx. J. That is not cricket. Defendants will be held to the representation their counsel made before the Court, and on which the Court expressly relied in denying that aspect of Manning's motion to compel. Defendants are barred from contending at trial that Manning committed the murder of English. This does not preclude them, of course, from offering evidence of Dye's claim that Manning admitted involvement in the murder. But *1055 defendants will be precluded from testifying that Manning was an actual "suspect" beyond what Dye claimed Manning had said—as there is no evidence the primary investigating agency (Elmwood Park) considered him as such, and defendants refused to produce any records the FBI had bearing on the English murder. Nor will defendants be permitted to claim that any records the FIB had, other than the records memorializing Manning's purported statement to Dye, indicated that Manning was a suspect. Manning's motion is therefore granted to this extent. 11. References to families or personal information The Court overrules Manning's request to bar the defendants from referring, as background, to the fact that they have families and children. 12. Witness security program payments to Dye On July 7, 2004, over defendants' objection, the Court directed the defendants to produce "generic information regarding the types of benefits provided to Dye, and with regard to monetary benefits, the disclosure must include the amounts." See Order of July 7, 2004. Defendants did not produce this information until September 16, 2004, nearly two and one-half months later, and only two weeks before the close of fact discovery. Manning served additional interrogatories, document requests, and request to admit, in letter form, on September 17, 2004, but these were served too late, as there was insufficient time before the close of discovery for defendants to answer them (as defendants promptly advised Manning). See N.D. 111. Local Rules, App. A ("Standing Pretrial Procedure Order and Forms"), ¶ 4. Manning wants to bar the defendants from suggesting that the $30,000 + benefits provided to Dye were anything other than cash payments (as Dye testified at his deposition). The request, in that form, is denied. But the Court imposed limitations on the discovery of the witness security program information following, and based upon, defendants' objection to production of any information about the program at all. For this reason, defendants will be precluded at trial from offering direct evidence regarding the details of the benefits provided to Dye beyond what they produced during discovery.[6] 13. Argument that the amount of payments to Dye was within a normal range Manning wants to bar defendants from arguing that the witness protection program benefits that Manning received were within a normal range. The basis for this request is defendants' redaction of all information from their disclosures about the program as to what constitute normal assistance. See Pl.Ex. P. Defendants make no separate response to this request, other than (by implication) their argument that these benefits are irrelevant—an argument we have rejected. See Def. Resp. at 7. Manning's motion is granted. Defendants cannot withhold during discovery information about normal ranges of benefits and then claim at trial that the benefits provided were normal. 14. Evidence regarding a methamphetamine investigation in Cincinnati Defendants do not object to Manning's request to bar mention of a supposed claim that Manning might have been involved in methamphetamine distribution in Cincinnati *1056 at some unspecified time. Though defendants have "reserve[d] the right to change their position," see Def. Resp. at 8, they may not seek to introduce such evidence without first obtaining leave of Court, outside the presence of the jury. 15. Manning's failure to file tax returns Manning asks to bar the defendants from eliciting evidence that he failed to file tax returns in certain years. Defendants argue that the evidence may be relevant to damages, but they do not explain their theory of admissibility. If defendants intend to question Manning about this, they must advise the Court before he testifies on direct, and must provide the Court with basis on which they claim this evidence is admissible. 16 & 17. Manning's suspensions as a police officer and search of storage locker The Court will permit defendants to offer evidence that Manning was suspended from the Chicago police department and then left the department following his indictment for official misconduct, and evidence regarding incriminating items found in his storage locker, so long as they can lay a foundation for the type of "nexus" discussed with regard to Manning's motions in limine 1, 2, and 3—that is, to the effect they actually considered this information in relation to some action that is at issue in this case. Defendants will be expected to make an offer of proof of the type discussed earlier before mentioning or adducing evidence about these matters. 18. Manning/Dye false alibi plan The tape recorded conversations between Dye and Manning included what the defendants characterize as discussions of a plan between Manning and Dye whereby Manning would arrange to have the witnesses against Dye killed in exchange for help in creating a false alibi for the Missouri kidnapping case. Manning's request to bar this evidence is denied. The Eighth Circuit held that the use of an informant to obtain incriminating information from Manning in the Missouri case after he was under indictment and represented by counsel violated his Sixth Amendment right to counsel. Manning v. Bowersox, 310 F.3d 571, 576 (8th Cir.2002). And under Maine v. Moulton, 474 U.S. 159, 174, 106 S. Ct. 477, 88 L. Ed. 2d 481 (1985), and United States v. Henry, 447 U.S. 264, 100 S. Ct. 2183, 65 L. Ed. 2d 115 (1980), it was the elicitation of this information, not just its use at trial, that violated Manning's right to counsel. See Henry, 447 U.S. at 264, 100 S. Ct. 2183 ("By intentionally creating a situation likely to induce Henry to make incriminating statements without the assistance of counsel, the Government violated Henry's Sixth Amendment right to counsel.") (footnote omitted). Manning asks to bar this evidence based not on the Sixth Amendment violation, but on the grounds it is irrelevant and unfairly prejudicial. The Court disagrees. The evidence is conceivably relevant to put in context Manning's purported admission to the Pellegrino murder, and may also be relevant for the purpose of explaining defendants' actions, at least so long as they can show a nexus of the type and in the manner discussed earlier in this Memorandum Opinion. Though Manning argues that the conversations do not have the import that the defendants claim, that is a matter of interpretation that is appropriately left to the fact finder at trial. Assuming defendants can establish the appropriate nexus, the evidence is relevant and not unfairly prejudicial. 19. Testimony of AUSA Canella Henrichs Manning has moved to bar the testimony of AUSA Henrichs on the ground that *1057 defendants precluded inquiry of Henrichs on numerous topics by asserting the attorney-client and work product privileges and also withheld numerous documents Henrichs had authored or reviewed on similar grounds. The Court has previously held that the attorney-client privilege was expressly waived by the government with regard to Henrichs' concurrence in the decision to record conversations between Dye and Manning, and that Manning was not precluded from inquiring of Henrichs in this area. Manning's request is thus denied to the extent he seeks to bar Henrichs from testifying about her decision to concur. Henrichs will, however, be precluded from testifying about obtaining the approval of her supervisors within the United States Attorney's Office, as the government declined to waive the work product privilege as it related to such communications. At the hearing on the motions in limine, however, defendants indicated that they intended to elicit testimony from Henrichs about subjects beyond her concurrence in the recording of Manning. Defense counsel's description of the subjects, however, was somewhat vague, and the Court does not have a clear sense of what defendants propose to elicit. Absent extraordinary circumstances, defendants will not be permitted to elicit testimony from Henrichs regarding any matter on which they claimed privilege; as discussed earlier, they cannot use the privilege to shield information and then use that same information, or aspects of it, as a sword. So that the Court can effectively monitor this area of testimony, defendants are directed to provide the Court and Manning, by the outset of the trial, a privilege log that provides a more meaningful identification of the subject matter of the documents withheld than the bare-bones privilege log that was produced in court.[7] And they must have available in the courtroom, for the Court's review if necessary, all Henrichs-related documents that they withheld on privilege grounds. 20. Tape recording of Gary Engel Manning asks the Court to exclude a tape recorded conversation between Gary Engel and Sharon Dugan, Engel's ex-wife and James Pellegrino's sister. In that conversation, Engel stated, among other things, that on the day Pellegrino disappeared, Pellegrino told Engel he was going to see manning, and later called Engel to say he was waiting for Manning, and then that Manning had arrived. This, supposedly, was the last anyone heard from Pellegrino. Manning moves to bar the evidence, first, on the ground that it was obtained in violation of Illinois' anti-eavesdropping law, which requires (with certain exceptions) both parties to consent to the recording of a conversation. See 720 ILCS 5/14-2. But federal law requires the consent of only one party, see 18 U.S.C. § 2511(2)(c), and defendant Buchan had Dugan's consent. The Illinois statute does not control admissibility in federal court, at least as to claims made under federal law, like Manning's Bivens and RICO claims. See, e.g., NLRB v. Local 90, Operative Plasterers and Cement Masons' Int'l Ass'n, 606 F.2d 189, 192 (7th Cir.1979). There is authority that the Illinois statute bars use of such evidence on claims under Illinois law, see, e.g., Fenje v. Feld, 301 *1058 F.Supp.2d 781, 817 (N.D.IU.2003), but in this case the only claim that might somehow be regarded as an "Illinois law" claim is the Federal Tort Claims Act against the government: the FTCA holds the government liable "in the same manner and to the same extent as a private individual under like circumstances" and provides that the law of the state where the challenged act or omission occurred governs. See 28 U.S.C. §§ 1346(b)(1), 2674. The parties have not addressed whether this might make the FTCA claims state law claims for purposes of the applicability of the Illinois eavesdropping statute. But because the FTCA claim is for the Court to decide, not the jury, we need not finally resolve that issue now. For the present it suffices that the tapes are not barred by the Illinois statute on the claims the jury will decide. Manning also argues that Engel's statements are inadmissible hearsay. They would be, if offered to prove the truth of what Engel asserted; in addition, Engel's expression to Dugan of his surmise that Manning committed the murder would be inadmissible on relevance grounds. But defendants appear to offer the information for a non-hearsay purpose. They argue that "it is proper for defendants to present evidence about the investigation they conducted and the information that they received." Def. Resp. at 11. This statement is a bit hard to comprehend, and'it appears to the Court to sweep far too broadly. If defendants are saying they relied in some way on Engel's statements into taking some action that is challenged in this case, they will be required to show evidence of a nexus, as discussed earlier, via an offer of proof before mentioning or adducing the evidence. If defendants have some other non-hearsay theory of admissibility, they need to explain it, clearly, succinctly, and directly—which they have not done thus far—as well as promptly. 21. Engel's arrests, convictions, and uncharged bad acts The Court grants Manning's request to exclude evidence of Gary Engel's arrests that did not result in criminal charges, his convictions that are more than ten years old, and other uncharged bad acts. Defendants have made no effort to set forth a proper basis for admissibility of this information. They make the bare, unsupported, and unexplained claim that "Engel's background is relevant to the defendants' investigation." Def. Resp. at 12. Without more, this is insufficient, and defendants make no attempt to claim, not even in bare-bones fashion, that information about Engel was something they relied on in taking the actions against Manning that are challenged in this case. 22. Federal RICO investigation Defendants state that they "do not need or now intend to introduce any details" of a purported RICO investigation of Manning that he asks the Court to bar. Though they hedge this a bit in a single sentence that states, without elaboration, that "[mjatters which were conveyed to [defendants] were provided in discovery and are relevant and admissible," see Def. Resp. at 12, that appears to involve something different from what Manning challenges, which were matters that evidently did not make it into the Manning investigatory file with which Buchan and Miller were involved. See PL Mot. In Limine at 24. Manning's motion is therefore granted. 23. Accusations raised at Manning's sentencing hearing Manning seeks to preclude the defendants from offering a "laundry list" of accusations of various crimes that were advanced at his capital sentencing proceeding. Defendants contend this information *1059 is relevant to establish the reasonableness of their actions. Perhaps so, but defendants have made no effort to establish a nexus between their purported knowledge of these allegations and any particular action they took that is challenged in this case. And there is a more significant problem. It appears, based on what the parties have advised, that the basis for the accusations that are the subject of this motion is documentation that the defendants either declined to produce in discovery, or that consisted of information from unidentified informants. Defendants are barred from introducing any such allegations for the reasons previously discussed. If there are matters referenced at Manning's sentencing hearing that were not the product of information withheld in discovery, defendants may be able to offer them in evidence, but only following the making of an offer of proof showing that they can establish a nexus between their knowledge of the allegations and some decision or action that is challenged in this case. 24. Uncharged crimes Manning seeks to bar evidence of uncharged crimes of which he was allegedly accused or suspected. It appears to the Court that this topic has been covered by the Court's rulings regarding admissibihty of information from confidential informants, or evidence of other uncharged crimes. If there is something the Court has missed, the parties should bring it to our attention promptly. 25. Information obtained from confidential informants This issue was dealt with in Section F of this Memorandum Opinion. 26. Prior convictions of Manning's witnesses The Court denies Manning's request to bar the defendants from using, to impeach Manning's witnesses, any prior convictions that were not disclosed in response to an interrogatory addressing the point. Defendants may use any convictions admissible for this purpose under Federal Rule of Evidence 609 that were disclosed in response to the interrogatory, as well as those that were otherwise made known to Manning during discovery, specifically, at the depositions of the witnesses in question. 27. Evidence regarding the McKillip murder Though Manning concedes that defendants may introduce evidence of information they had at relevant times regarding his purported involvement in the murder of Thomas McKillip, he seeks to bar them from using at trial after-acquired information to attempt to prove Manning's guilt of the murder. The Court agrees with defendants that they may introduce information that came to their attention during the course of the investigation that ultimately led to the Missouri prosecution; such information is relevant because, as defendants argue, it will provide a context for certain actions that are challenged in this case. Defendants appear also to contend, however, that they can go beyond this and offer additional evidence or information that was learned or that came to their attention at later times. The Court does not see the relevance of this, and defendants have made no effort to describe it, other than by way of an unexplained statement that such evidence "put[s] defendants' actions in context and allow[s] defendants to explain their actions." Def. Resp. at 14. Such generalities do not suffice to establish the relevance of the evidence under Federal Rule of Evidence 402 or its probative value so that the Court can conduct a Rule 403 analysis. Thus, if defendants *1060 wish to offer this after-acquired evidence for some purpose, they must follow the same offer of proof requirement previously discussed to show they can establish a nexus between this highly and potentially prejudicial information and some action or decision of theirs that is under attack. 28. Allegedly undisclosed witnesses Manning contends his counsel asked the defendants repeatedly to identify who they would call to testify at trial, stating that he wished to take the depositions of any such persons while discovery remained ongoing. He argues that the defendants' witness list provided as part of the proposed final pretrial order includes persons who were "never disclosed and/or made available for deposition" and thus should not be allowed to testify. PI. Suppl. Mot. In Limine at 3. The record reflects that Manning never served on defendants an interrogatory seeking a list of trial witnesses. Rather, he served an interrogatory seeking identification of persons with knowledge of relevant facts. When Manning's counsel had the communications with defense counsel referenced above, he relied on that interrogatory, interpreting it as asking for a list of trial witnesses. But that is not what the interrogatory said, and defense counsel made it clear he disagreed. Manning did not serve a revised interrogatory after defense counsel's position was made known. Manning's real complaint appears to be that defendants' identification of persons with knowledge incorporated en masse any persons identified in the enormous volume of material produced in discovery. Manning has a fair point when he says this was unfair in the particular circumstances of this case. But the appropriate remedy for this problem would have been a request for a more particularized answer or, as noted earlier, a revised interrogatory. Waiting until after the end of discovery and then asking the Court to strike anyone who was not named specifically is not a fair or appropriate remedy under the present circumstances. There is one witness disclosed in this manner who may fall in a different category. Manning asked for the deposition of First Assistant .United States Attorney Gary Shapiro,[8] and a letter from Manning's counsel to defendants' counsel dated July 15, 2004 reflected an agreement that defendants' counsel would produce Shapiro for a deposition during the week of August 2. See Pl.Ex. Z. Defendants contend that "[p]laintiff chose to pass on that deposition," see Def. Resp. at 16, but they do not support that contention. Manning contends that after Dye's deposition, defendants' counsel indicated he might call Shapiro to testify to rebut something Dye had said. Manning promptly renewed his request to depose Shapiro by way of a letter dated October 26, 2004, see Pl.Ex. Z, but he says he heard nothing back from defendants' counsel. The Court will require more information on these questions before determining whether Shapiro may testify. Defendants arguably may be entitled to add witnesses as a result of unanticipated matters that came up at the belated deposition, but the Court is unlikely to permit them to do so if they have not made the new witnesses reasonably available for deposition. There are two persons who defendants concede were not identified in any way until quite recently: Bill Sowers and William *1061 Monroe. Sowers is an investigator with a California prosecutor's office who defendants plan to call to rebut an allegation made by Dye in his deposition, taken after the close of discovery by agreement of the parties, that he was prosecuted in California in supposed retaliation for his refusal to testify at any retrial of Manning on the Pellegrino murder. The real problem with this is that it is difficult to see how Dye's belief constitutes admissible evidence to begin with; the Court cannot imagine what personal knowledge or admissible evidence Dye can contribute. The appropriate way to deal with Dye's statement is to seek to exclude it, not add an undisclosed witness to the list. The Court bars Sowers from testifying, though we will reconsider this ruling if it can be shown that Dye's belief about the California prosecution is admissible. The second witness is William Monroe, an FBI agent who will be called to rebut a statement by Dye that he received in witness security program payments $2,000 more than is documented in discovery. According to the defendants, Monroe "will testify about what FBI records show about payments to Dye." Def. Resp. at 15. Standing alone, Dye's late-breaking testimony on this point likely would warrant permitting defendants to add Monroe to their witness list. But there is another problem. As discussed earlier, defendants resisted discovery of any witness security program information, and based on their confidentiality concerns the Court was persuaded to impose severe limits on what had to be disclosed regarding the witness security program payments. Defendants now offer to "provide Manning with discovery of what [Monroe] finds prior to trial." Id. The Court reserves ruling on whether Monroe can testify pending the making of these disclosures, and cautions the government that if it continues to limit the scope of discovery regarding the payments, the Court likely will look unfavorably on the request to call Monroe. Manning also asks the Court to bar the testimony of Judge Edward Fiala, who presided over Manning's Illinois trial, arguing he has no relevant evidence. Defendants have not replied. This matter should be taken up before Judge Fiala, a trial judge who presides over an extremely busy docket in the Criminal Court, is brought in to testify. 29. Defendants' exhibit list Defendants' exhibit list does not conform to the requirements of the Court's standing pretrial order rules. Defendants have identified en masse what appears to be the entirety of several FBI and Buffalo Grove investigatory files, as well as the entirety of voluminous prison and employment files. The Buffalo Grove files alone consist of over 3,800 pages. This Court's standing pretrial order rules require identification of "all exhibits a party may introduce at trial." See www.ilnd.uscourts.gov/judge/kennelly/fptd.pdf, 117. This requirement has the purpose of, among other things, avoiding unfair surprise at trial and permitting the opposing party to make objections so that issues of admissibility can be addressed in a manner that will not disrupt the flow of the trial or unduly impose on the jury. As Manning correctly notes, defendants listing of the bulk exhibits "leaves Plaintiff without any ability to meaningfully challenge references to any particular document." PL Supp. Mot. In Limine at 7.[9] Because of their non-compliance with the Court's requirements, defendants will be *1062 barred, absent extraordinary circumstances, from introducing in evidence any document that has not been identified with particularity in an amended exhibit list to be provided by no later than the end of jury selection on December 6. 30. Evidence on "antisocial personality disorder" Manning has moved to bar defendants' damages expert from offering testimony that Manning might have "antisocial personality disorder." This motion was filed later than the other motions in limine because of the timing of the submission of damages expert reports. As a result, defendants have not yet had an opportunity to respond. Until they have done so and the Court has ruled, defendants should not mention or elicit testimony on this point. Conclusion For the reasons stated above, the Court grants Manning's motion to impose negative evidentiary consequences [# 114-1]; denies Manning's fourth motion to compel [# 167-1]; grants in part and denies in part Manning's and defendants' motion in limine [# 171-1, 172-1, 173-1 & 2]; denies Manning's motion to reconsider [# 177-1] and his motion for leave to file amended complaint [# 180-1]; and defers ruling on Manning's motion in limine regarding evidence of "antisocial personality disorder" [# 184-1]. The motion for leave to file an additional appearance [# 169-1] was previously granted and is therefore terminated. The case is held for a combined jury/bench trial on December 6, 2004 at 9:45 a.m. NOTES [1] In many instances, that the log does not provide sufficient information to allow the Court to determine the subject matter of the documents. [2] The Court advised defense counsel at the November 30 hearing on the motions in limine that production of these documents was required. [3] In this regard, it is noteworthy that Manning has offered evidence from which a fact finder reasonably could determine that some of the now-disclosed informants against him were prodded to fabricate information. [4] In addition to the fact that the objection to Manning's motion to compel disclosure of the informants' identity was made by all the federal defendants, defendant Buchan individually asserted the informer's privilege during his deposition, relying on promises of confidentiality he said he had made. [5] Manning's argument on the former convictions is that they cannot be used under Federal Rule of Evidence 609 to impeach his credibility; in response, defendants argue that at defendants least some of the convictions are admissible for other reasons. [6] The possible exception to this is discussed later in this Memorandum Opinion with regard to Manning's request to bar William Monroe from testifying as a defense witness. [7] The log that defendants provided plainly did not comply with Federal Rule of Civil Procedure 26(a)(5)'s requirement that a privilege log "describe the nature of the ... things not produced or disclosed in a manner that, with out revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection." Fed.R.Civ.P. 26(a)(5) (emphasis added). [8] The Court notes that despite defendants' contention that Shapiro was "listed by name" in the interrogatory answers cited in and attached to their response, see Def. Resp. at 16 (emphasis in original) & Ex. 3, the Court could not find Shapiro's name in those answers. [9] It is conceivable that defendants actually intend to introduce the files en masse. The Court seriously doubts, however, whether the files are admissible in that manner. And we are rather certain that would not be a productive way to place information before the jury.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2319661/

35 A.3d 1082 (2012) 133 Conn.App. 75 YELLOW BOOK SALES AND DISTRIBUTION COMPANY, INC. v. David VALLE. No. 32588. Appellate Court of Connecticut. Argued October 12, 2011. Decided January 17, 2012. *1083 Thomas L. Kanasky, Jr., Bridgeport, for the appellant (plaintiff). Anthony J. Natale, with whom were Shannon Philipp Butler and, on the brief, Brian L. Wolinetz, for the appellee (defendant). DiPENTIMA, C.J., and BEAR and SCHALLER, Js. SCHALLER, J. The plaintiff, Yellow Book Sales & Distribution Company, Inc. (Yellow Book), appeals from the summary judgment rendered by the trial court in favor of the defendant, David Valle. On appeal, Yellow Book claims that the court incorrectly concluded that the agreement between the parties was rendered unenforceable by the statute of frauds, General Statutes § 52-550.[1] For the reasons explained below, we affirm the judgment of the trial court. The record contains the following undisputed facts and procedural history which are relevant to this appeal. Yellow Book is a Delaware corporation engaged in the business of advertising. The defendant was the president of Moving America of CT, Inc. (Moving America), and, before that company ceased operating in 2006, entered into multiple contracts with Yellow Book on its behalf. Each of these contracts was executed through the use of a standard form containing the following provisions.[2] Paragraph 1 provides in relevant part: "Customer and [p]ublisher ... agree that [p]ublisher will publish advertising in the *1084 [directories and/or provide the [i]nternet [s]ervices, in accordance with the terms and conditions of this agreement...." Subsection A of paragraph 6 reads: "Customer agrees to pay the amounts listed on the reverse side of this agreement for print advertising in the [directories and/or [i]nternet [s]ervices." The final provision of the contract, subsection F of paragraph 15, reads: "The signer of this agreement does, by his execution personally and individually undertake and assume the full performance hereof including payments of the amounts due hereunder." The parties completed the signature provision of this form contract in a substantially similar manner on each occasion.[3] The words "Moving America" appeared on the first line. A signature reading "David Valle, President" was placed on the second line.[4] Finally, on the third line, the words "David Valle, President" were handwritten along with the date.[5] On May 27, 2009, Yellow Book commenced the present action against the defendant in his individual capacity, pursuant to the individual guarantees contained within these contracts. In its complaint, Yellow Book alleged that Moving America had since dissolved and that the defendant was individually liable to it for $28,808, the balance remaining unpaid on the account, plus interest and attorney's fees. On September 29, 2009, the defendant filed an answer denying the substantive allegations of the complaint and alleging the statute of frauds as a special defense. On October 23, 2009, Yellow Book filed a reply denying this special defense. On February 1, 2010, the defendant filed a motion for summary judgment, claiming that the imposition of liability was foreclosed by the statute of frauds as a matter of law. On April 19, 2010, Yellow Book filed an objection to the defendant's motion along with its own cross motion for summary judgment. On May 7, 2010, the defendant filed an objection to Yellow Book's cross motion for summary judgment. On July 23, 2010, the court issued a memorandum of decision granting the defendant's motion for summary judgment. Specifically, the court concluded that Yellow Book had alleged "[a] promise by the defendant to answer for the debt of Moving America" that "falls squarely within" the statute of frauds. The trial court further concluded that the written contracts presented to it were ambiguous as to whether the defendant was a party to the contract in his individual capacity and that the agreements therefore were unenforceable, *1085 as a matter of law, pursuant to the statute of frauds. This appeal followed. On appeal, Yellow Book claims that the court incorrectly concluded that (1) the promises alleged by Yellow Book constitute agreements to answer for the debt of Moving America and (2) the language contained within the various written memoranda failed to satisfy the statute of frauds.[6] We disagree. We begin our analysis by setting forth the applicable standard of review. "Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. ... On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court.... Our review of the trial court's decision to grant [a party's] motion for summary judgment is plenary." (Internal quotation marks omitted.) Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010). I Yellow Book's first claim is that the court erred in granting the defendant's motion for summary judgment because the obligation undertaken by the defendant was not a promise to answer for the debt of Moving America but, rather, an original undertaking not governed by the statute of frauds.[7] We disagree. The statute of frauds requires that a promise made to answer for the debt of another be expressed in a writing and be signed by the party against whom enforcement is sought. General Statutes § 52-550(a)(2). "Fundamentally the distinction between a contract which falls within the condemnation of [§ 52-550(a)(2)] and one which does not is that the former is a collateral undertaking to answer in case of a default on the part of the obligor in the contract, upon whom still rests the primary liability to perform, whereas in the latter the obligation assumed is a primary one that the contract shall be performed." (Internal quotation marks omitted.) Kerin Agency, Inc. v. West Haven Painting & Decorating, Inc., *1086 38 Conn.App. 329, 331-32, 660 A.2d 882 (1995). "The question as to whom credit was given, which is determinative of whether the agreement was an original undertaking not within the statute, is one of fact." (Internal quotation marks omitted.) Id., at 332, 660 A.2d 882; Bartolotta v. Calvo, 112 Conn. 385, 388-89, 152 A. 306 (1930); Equipment Distributors, Inc. v. Adams, 33 Conn.Supp. 528, 530, 358 A.2d 367 (1976). In Kerin Agency, Inc. v. West Haven Painting & Decorating, Inc., supra, 38 Conn.App. at 330, 660 A.2d 882, this court addressed a case in which an insurance company sought to recover unpaid premiums pursuant to a personal guarantee made by the president of the insured corporation. In that case, the defendant argued that enforcement of the agreement was barred by the statute of frauds because it constituted a contract to answer for the debt of the corporation. Id. In considering whether the statute of frauds applied, we stated: "The testimony at trial established that the plaintiff extended credit to [the corporation] on the basis of [the individual defendant's] personal guarantee and a review of [his] personal financial statement" and, accordingly, affirmed the trial court's conclusion that the defendant's undertaking was original rather than collateral in nature and, therefore, not governed by the statute of frauds. Id., at 332-33, 660 A.2d 882. In the present case, the defendant submitted evidence to the trial court in support of his motion for summary judgment indicating that Yellow Book extended credit solely to Moving America and that, unlike Kerin Agency, Inc., Yellow Book was not induced to act by the strength of the defendant's individual credit. Specifically, the deposition transcript of William Dest, the sales agent responsible for Moving America's account, contains the following colloquy: "Q. And Moving America was the company that the credit was extended to, correct? "A. Yes. "Q. Credit wasn't extended to [the defendant], correct? "A. No, it was extended probably to, at least the business. If the current credit report was done, it was the business that the credit was for, as far as the business, but that's the paperwork that was filled out."[8] There is no evidence in the record indicating that this fact is in dispute.[9] Absent such a dispute, the court correctly concluded that Yellow Book sought recovery pursuant to a collateral promise by the defendant to answer for the debt of Moving America. Such an agreement, as the court noted in its memorandum of decision, falls "squarely within" the statute of frauds. *1087 II Yellow Book's second claim is that the various written agreements contained within the record are not ambiguous as to whether the defendant is a party to the contract in his individual capacity, and, therefore, the court erred in concluding that enforcement was barred by the statute of frauds. We disagree. "The statute of frauds requires that the essential terms and not every term of a contract be set forth therein.... The essential provisions of a contract are the purchase price, the parties, and the subject matter for sale.... In order to be in compliance with the statute of frauds, therefore, an agreement must state the contract with such certainty that its essentials can be known from the memorandum itself, without the aid of parol proof...." (Citations omitted; emphasis added; internal quotation marks omitted.) SS-II, LLC v. Bridge Street Associates, 293 Conn. 287, 294, 977 A.2d 189 (2009). When the statute of frauds applies, summary judgment in favor of the defendant is proper when an essential provision of the contract is ambiguous. See Carta v. Marino, 13 Conn.App. 677, 681, 538 A.2d 1091 (1988). In order for the statute of frauds to be satisfied in the present case, the record must contain a writing that states, without ambiguity, that the defendant is a party to an agreement in his individual capacity.[10] Although Yellow Book argues that the addition of the phrase "[a]uthorized [s]ignature [i]ndividually and for the [c]ompany ([r]ead clause 15F on reverse side)" beneath the defendant's signature removes any ambiguity from the contract, such language cannot be read in isolation. The parties do not dispute that the defendant signed his name only once on each agreement and that the signature was always appended with the corporate designation "President." Moreover, many of the other provisions contained within these contracts indicate that the agreement was formed between Yellow Book and Moving America. Specifically, paragraph 1 of the form contract states: "Customer and [p]ublisher agree that [p]ublisher will publish advertising in the [d]irectories...." (Emphasis added.) Likewise, subsection A of paragraph 6 states: "Customer agrees to pay the amounts listed on the reverse side...." (Emphasis added.) These additional facts demonstrate that the question of whether the defendant was a party to these agreements in his individual capacity is, at least, unclear. Because these writings are subject to more than one interpretation, we agree with the court that they are ambiguous as to the identity of the parties to the contract and, therefore, do not satisfy the statute of frauds. Accordingly, we conclude that the court properly granted the defendant's motion for summary judgment. The judgment is affirmed. In this opinion the other judges concurred. NOTES [1] General Statutes § 52-550 provides in relevant part: "(a) No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged ... (2) against any person upon any special promise to answer for the debt, default or miscarriage of another...." [2] Throughout these contracts the term "publisher" is used to refer to Yellow Book, the term "customer" is used to refer to Moving America and the term "signer" is used to refer to the defendant. [3] The signature provision of the form contract appears as follows: THIS IS AN ADVERTISING CONTRACT BETWEEN YELLOW BOOK AND and ---------------------------------------------------------------------------------------------- Print Company Name X ----------------------------------------------------------------------------------------------- Authorized Signature Individually and for the Company (Read clause 15F on reverse side) Title ------------------------------------------------------------------------------------------------ Print Signer's Name SS # (required for new accounts or new signer) Date [4] We note that on the agreements dated July 20, 2005, the signature of the defendant appears on the third line while the second line was left blank. This variation, however, does not affect our analysis. [5] Despite the instructions printed beneath the third line, the defendant always included the designation "President" and never printed his social security number on this line. [6] Yellow Book also claims in its statement of issues that the court erred in denying its cross motion for summary judgment. Because this issue is not discussed in Yellow Book's brief, however, we consider it to be abandoned. See Naier v. Beckenstein, 131 Conn.App. 638, 641 n. 1, 27 A.3d 104 (2011). [7] The defendant argues that Yellow Book's failure to address this distinction in its trial court brief prevents us from considering the applicability of the statute of frauds on appeal. The court granted the motion for summary judgment after concluding explicitly that the statute of frauds applied to the present case as a matter of law. Under such circumstances, we cannot conclude that addressing this issue on appeal would constitute an ambuscade of the trial court judge. See Rowe v. Superior Court, 289 Conn. 649, 662-63, 960 A.2d 256 (2008) ("The trial court appears to have understood and rejected [the argument presented on appeal] .... Under such circumstances, we cannot conclude that the plaintiff has ambushed the trial court by seeking reversal of an issue that he had failed to raise at trial."); see also Morgan v. Hartford Hospital, 301 Conn. 388, 394 n. 7, 21 A.3d 451 (2011). [8] The following colloquy also appears in the transcript of this deposition: "Q. Okay, to reiterate a few points, when Yellow Book extended credit, your understanding is they were extending it to Moving America, correct? "A. Yes." [9] Although Yellow Book is correct to note that the form agreement contains a provision affording it the right to check the defendant's personal credit history, and extend a line of credit to him individually at its discretion, the record contains no evidence indicating that these rights were exercised in the present case. On the contrary, the undisputed evidence contained within the record demonstrates that the defendant never provided his personal social security number to Yellow Book on the front of the contract and that, despite this omission, Yellow Book provided advertising services to Moving America. [10] In addressing this issue, we note that "[n]o part of a document is necessarily more important than any other part for the purpose of determining the parties thereto and, therefore, the entire document, including the heading, body, and signature, is considered...." (Internal quotation marks omitted.) Tolk v. Williams, 75 Conn.App. 546, 555 n. 6, 817 A.2d 142 (2003).

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2324381/

64 N.J. 338 (1974) 316 A.2d 425 ASSOCIATION OF NEW JERSEY STATE COLLEGE FACULTIES, INC., A NEW JERSEY CORPORATION, ET AL., PLAINTIFFS-APPELLANTS, v. RALPH A. DUNGAN AS CHANCELLOR OF HIGHER EDUCATION AND INDIVIDUALLY, ET AL., DEFENDANTS-RESPONDENTS, AND ASSOCIATION OF NEW JERSEY COUNTY FACULTIES, INC., ET AL., PLAINTIFFS-APPELLANTS, v. THE NEW JERSEY BOARD OF HIGHER EDUCATION, ET AL., DEFENDANTS-RESPONDENTS. The Supreme Court of New Jersey. Argued October 9, 1973. Decided March 5, 1974. *341 Mr. William S. Greenberg argued the cause for the appellants (Messrs. Sterns & Greenberg, attorneys; Mr. Michael J. Herbert, on the brief). Mr. Theodore A. Winard, Assistant Attorney General, argued the cause for the respondents (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney; Mr. Stephen Skillman, of counsel; Mr. Arthur Winkler, Deputy Attorney General, on the brief). The opinion of the Court was delivered by JACOBS, J. On September 15, 1972 the defendant Board of Higher Education adopted a resolution which set forth general guidelines for the granting of tenure to faculty members in the State Colleges and for the periodic evaluation of tenured faculty members. The plaintiff Association of New Jersey State College Faculties, Inc., along with others, brought a Law Division action attacking the resolution and in due course the action was transferred to the Appellate Division. On October 20, 1972 the Board adopted a similar resolution with respect to County Colleges. The Association of New Jersey County College Faculties, Inc., along with others, appealed therefrom to the Appellate Division. R. 2:2-3(a). The matters were consolidated in the Appellate Division and while awaiting argument there we certified under R. 2:12. New Jersey's Department of Higher Education (N.J.S.A. 18A:3-1 et seq.) has for some time been concerned with the proportion of tenured and nontenured faculty at State Colleges. This concern has been the subject of comprehensive study within our State and comparable concern has been the subject of comprehensive study elsewhere. See, e.g., Tenure *342 at the State Colleges of New Jersey (Department of Higher Education, Office of the Chancellor, June, 1972); Faculty Tenure, A Report and Recommendations by the Commission on Academic Tenure in Higher Education (The Jossey-Bass Series in Higher Education 1973). At various intervals the Department expressed to the State Colleges and to the Board of Higher Education (N.J.S.A. 18A:3-6) its view that tenure reforms were necessary and that unduly high proportions of tenured faculty disserved sound educational interests. In October, 1971 the Chairman of the Board of Higher Education addressed a letter to the Chairman of the Council of State Colleges suggesting the establishment of a joint committee to discuss the matter. The suggestion was not directly implemented but the Council proceeded on its own with the establishment of a committee headed by Dr. Clyde Davis of Glassboro State College. This committee prepared a report which was transmitted to the Board of Higher Education. Thereafter the Board requested the Chancellor (N.J.S.A. 18A:3-20) to prepare a staff study on the tenure situation at the State Colleges for the Board's consideration at its July, 1972 meeting. Such a study was prepared and its results were embodied in a June, 1972 report by the Chancellor, supra. The report in its first section dealt with "Tenure and Institutional Flexibility." It noted that while there is a definite advantage to an institution in having "a stable group of faculty whose professional careers are secure," by tenure or otherwise, "an institution in which all faculty members are tenured would find itself in an intolerable situation." It would "quickly stagnate internally and lose most, if not all, of its ability to develop and change over time, consistent with its need to be responsive to the society in which it exists." It must retain "a degree of flexibility in the allocation of its faculty resources" so that it may start new programs, introduce young scholars, and meet urgent social policy by conduct such as active recruitment of "minority and female faculty members." *343 In its second section the Chancellor's report dealt with "What Proportion of the Faculty Should Be Tenured?" It recognized that it was not possible to establish with certainty the precise proportion of tenured faculty which would "`provide maximum flexibility while at the same time assuring a satisfactory base of faculty security and continuity."[*] It recognized further that in the ultimate the determination would involve delicate matters of policy and judgment, though empirical data would be helpful in determining an appropriate range. In this connection the practices at state colleges and universities throughout the country were reviewed. A 1969-70 study of state and land grant colleges indicated that 54.8% of their faculties were under tenure; a study of 31 major universities in 1961-62 indicated an average tenure rate of 57.6%; an earlier study indicated a tenure rate of 53%; and a very recent study indicated that most of the public four-year colleges had less than half of their faculties on tenure, a significant number had between 51% and 70% on tenure and only a small number had over 71% tenured. The report expressed the view that "a tenured faculty of between 50% and 60% is probably normative" and that "while normative patterns cannot, of course, be assumed to reflect sound practice, the general consensus which has developed at many institutions, each operating independently of the others, is perhaps evidence that a faculty tenured at that level is desirable." It concluded that a tenure ratio of 60% would generally "fulfill the dual and often conflicting institutional needs of both flexibility and stability." This *344 may be compared favorably with the following recommendation in the Faculty Tenure report (Jossey-Bass Series), supra at 50-51: The commission recommends that each institution develop policies relating to the proportion of tenured and nontenured faculty that will be compatible with the composition of its present staff, its resources and projected enrollment, and its future objectives. In the commission's nearly unanimous judgment, it will probably be dangerous for most institutions if tenured faculty constitute more than one half to two thirds of the total full-time faculty during the decade ahead. The institution's policy in this matter, which should be flexible enough to allow for necessary variation among subordinate units, should be used as a guide in recruitment, reappointment, and the award of tenure. Special attention should be given to the need to allow for significant expansion of the proportion of women and members of minority groups in all faculties, especially in the tenured ranks. In achieving its policy goals as to the proportion of its faculty on tenure, institutions will need to proceed gradually in order to avoid injustice to probationary faculty whose expectations of permanent appointments may have been based on earlier, more liberal practices. In a section captioned "The Current Tenure Status in the State Colleges" the Chancellor's report dealt with tenure proportions as evidenced by data submitted by the State Colleges in the spring of 1972. The tenured faculty in the colleges was approximately 63% in 1971 and had climbed to 71% in January, 1972. It was estimated that the range of tenured faculty at the colleges in 1972 would probably be "between 58% at the campus with the lowest tenure ratio and 75% at the campus with the highest tenure ratio." The report noted that while this indicated a serious tenure problem on some campuses, other factors affecting the tenure ratio must also be considered including "the growth of tenured faculty during the past several years, the effect of decreasing enrollment growth in the years ahead, the distribution of tenured faculty by department, and the distribution of tenured faculty by rank." The number of newly tenured faculty appeared generally to exceed the number of older tenured faculty who were leaving the colleges and if this trend continues, the report said, it could produce a faculty "six *345 years from now which may be 77% tenured." The report pointed out that while the tenure problem was serious enough at college-wide levels, it was perhaps even more serious at departmental levels since 30% of all departments were over 80% tenured. And it referred specially to the proportion of tenured assistant professors and instructors which it described as unduly high and which it ascribed to the practice of granting tenure without requiring "positive evidence of scholarly achievement and excellence in teaching." In addition to its proposal for the adoption of an appropriate tenure ratio, the report recommended various practice and policy changes designed generally towards the end that the granting of tenure be confined to those who have not only performed satisfactorily but who have also evidenced that they are likely to contribute to future development of the college. It recommended that each of the State Colleges establish an institutional master plan forecasting its personnel requirements. It suggested that the planning should be considered "an on-going process involving faculty, administration, students, and trustees, as appropriate, and should serve as a basic guide for personnel actions." And it noted that in presenting an individual recommendation for tenure there should be suitable indication that the recommendation is consistent with the master plan. In its discussion of "qualifications for tenure" the report suggested the establishment of criteria which would ordinarily include the possession of "an appropriate terminal degree or its equivalent." However, the report noted that the requirement of a terminal degree was a matter upon which "reasonable men may reasonably disagree." In its closing remarks the report listed the advantages and disadvantages of the policies it proposed and concluded that "on balance, the advantages far outweigh the disadvantages." At its July, 1972 meeting the Board discussed the Chancellor's report but deferred action until its fall meeting. In the meantime, copies of the report had been sent to the presidents of the State Colleges with the request that they furnish *346 them to their faculty senates for discussion, comments and recommendations which would be transmitted to the Board. On September 15, 1972, the Board, expressing its belief that, while continuous appointment of a significant proportion of a college faculty is a desirable goal, too high a proportion of tenured faculty precludes necessary flexibility, and its further belief that the recommendations in the Chancellor's report "represent a sound approach to reform of the tenure process at the State Colleges," adopted a resolution embodying the following policies regarding tenure in the State Colleges of New Jersey: 1) Each college Board of Trustees shall prepare a ten-year plan for its institution indicating the steps it plans to take to achieve a future balance of faculty in which no more than a reasonable proportion are ultimately tenured. The purpose of limiting the proportion of tenured faculty on each campus is to retain flexibility to enable the institution to respond to changing educational needs in the future. The plan established by each board shall include the proportion of tenured faculty projected each year during the ten-year period. The college trustees shall report their plan to the Board of Higher Education and shall inform the Board each year of the progress being made in achieving their goals. 2) Each State College Board of Trustees shall establish internal policies which indicate either that it will impose specific restrictions or more intensive and rigorous review procedures for any reappointment conferring tenure which brings the proportion of individuals in a department (or other major academic sub-unit) or in the college as a whole above its present level. Reappointments conferring tenure which raise the tenure rate above that level shall be made only as an unusual action when judged by the college Board of Trustees as being in the best interests of the college. 3) A reappointment conferring tenure may be offered only to faculty members who possess an appropriate terminal degree or its equivalent, except under unusual circumstances when the granting of tenure to an individual not having these qualifications is judged by a college Board of Trustees as being in the best interests of the institution. 4) Tenure should be awarded only to individuals whose performance during their probationary period gives clear evidence of the ability and willingness to make a significant and continuing contribution to the growth and development of the institution. 5) Tenure should be awarded after presentation of positive evidence of excellence in teaching, scholarly achievement, contribution to *347 college and community, and fulfillment of professional responsibilities, and not solely because negative evidence to the contrary is not presented. 6) Each college Board of Trustees should establish a procedure which the college will employ to regularly evaluate the performance of tenured faculty members. Such evaluations should occur not less frequently than every five years. These evaluations, which should include student input, should comprehend such factors as continued teaching competence, professional preparation and attainments which are directly related to teaching or administrative assignments, contributions to campus life beyond formal, assigned instructional activity and significant research, scholarly or community activity. On September 21, 1972 the Office of the Chancellor sent a memorandum to the presidents of all of the County Community Colleges. In it, attention was called to the material in the June, 1972 report and to the need for flexibility in Community Colleges, particularly "in view of their mission and changing curriculums." The memorandum noted that while the situation was not yet as critical in the Community Colleges as it had become in the State Colleges, there were indications that "serious problems may develop unless sound policies are initiated now." Copies of the resolution embodying the policies with respect to the State Colleges accompanied the memorandum with the suggestion that they be considered and discussed at a forthcoming "meeting of the Association of County College Presidents on September 28th." At its meeting on October 20, 1972 the Board, having received an endorsement from the Council of County Colleges, adopted a resolution concerning tenure policies in County Colleges. This resolution set forth policies regarding tenure in the Community Colleges which were in major respects similar to those announced with respect to State Colleges. On November 29, 1972, after the plaintiffs had instituted legal proceedings challenging the Board's action, the resolutions were filed with the Secretary of State as emergency rules within N.J.S.A. 52:14B-4(c). They were published as such in the New Jersey Register on January 4, 1973. 5 N.J.R. 8(e) and 9(a). Thereafter the Board filed notice in the New *348 Jersey Register (5 N.J.R. 143(d), 144(a)) that the public and interested persons would be afforded an opportunity to comment and that the Board may refile the rules without further notice. The Board received no comments from members of the public or other interested parties and on July 20, 1973 it promulgated separate resolutions readopting as administrative rules its tenure policies in State and County Colleges. On July 27, 1973 the Board refiled its tenure policies as administrative rules with the Division of Administrative Procedure (5 N.J.R. 265(a) and (b)) and thereafter they were assigned citations in the New Jersey Administrative Code. N.J.A.C. 9:2-9.1 et seq. and 9:4-6.1 et seq. The plaintiffs have grounded their attacks on the resolutions on three points set forth in their briefs. We shall deal with them in the order presented. Their first point asserts that the Board of Higher Education, in adopting the faculty tenure rules, violated the "procedural requirements of the New Jersey Administrative Procedure Act." N.J.S.A. 52:14B-4. See Motyka et al. v. McCorkle et al., 58 N.J. 165, 179-181 (1971); N.J. Builders, Owners and Managers Association v. Blair, 60 N.J. 330, 341 (1972); cf. Beckworth v. N.J. State Parole Bd., 62 N.J. 348 (1973). The resolutions were originally filed with the Secretary of State and were published in the New Jersey Register as "emergency rules" under N.J.S.A. 52:14B-4(c) which permits such filing and publication without prior notice and hearing when the agency finds "an imminent peril to the public health, safety, or welfare." The Board of Higher Education notes that at the time the resolutions were originally adopted, the academic year had begun, review procedures for faculty members eligible for tenure appointments were occurring on the college campuses, and the date for notification of reappointment or nonreappointment was drawing near. The Board notes further that the proportion of tenured faculty at the State and County Colleges was already "approaching a level which seriously threatened the future quality, content, and direction of the educational program offered by the institutions individually *349 and the system of public higher education as a whole" and that it "believed that it was imperative that appropriate standards and criteria for conferring tenure be applied immediately at the institutions of higher education." Prior formal notice and opportunity for submission of statements and arguments would clearly have been the preferable course; but in the light of the foregoing assertions of belief by the Board we are not prepared to say, on the very limited record before us, that its original procedure was legally improper; in any event its subsequent action which included adequate formal notice and opportunity to submit statements and arguments was sufficient to satisfy N.J.S.A. 52:14B-4(a), and to render the procedural issue moot. See Motyka, et al. v. McCorkle, et al., supra, 58 N.J. at 179-181. Furthermore, the plaintiffs are in no position to establish that they were in anywise prejudiced by the suggested procedural deficiency. Copies of the Chancellor's report had been duly sent to faculty senates for their reactions and recommendations. When thereafter pertinent meetings were held by the Board, it gave due notice that it would consider adopting tenure policies in furtherance of the report; the Board states that notice was widely sent to interested parties including "the Association of New Jersey State College Faculties, Inc., the New Jersey State Federation of Teachers, the New Jersey Education Association, and the State and County College Newspapers." At oral argument, counsel acknowledged that the plaintiffs were fully aware of the published notice that any written statements and arguments which they chose to submit would be duly received and considered by the Board of Higher Education. The plaintiffs chose not to submit any writings, apparently in the belief that such submission would be unfruitful. Be that as it may, the plaintiffs had in legal contemplation been afforded sufficient notice and hearing in substantial fulfillment of the terms of the Administrative Procedure Act. See Motyka et al. v. McCorkle et al., supra, 58 N.J. at 179-181. *350 We reject the plaintiffs' first point and come now to their second point under which they assert that "The Board of Higher Education transcended its rule-making authority by adopting Faculty Tenure Rules which illegally impair the tenure rights of the appellants." Though the Legislature was careful to vest substantial measures of autonomy in the individual colleges, it was equally careful to vest overall supervisory responsibilities in the Board of Higher Education. Thus N.J.S.A. 18A:3-13 declares that it shall be the duty of the Board of Higher Education "to advance long-range planning for the system of higher education as a whole in the state"; N.J.S.A. 18A:3-14(h) directs the Board to "establish general personnel policies for the public institutions of higher education"; N.J.S.A. 18A:3-15 provides that the Board may adopt rules for "implementing and carrying out" the law; and N.J.S.A. 18A:3-16 provides that in addition to the powers specifically provided by law the Board shall have all powers "requisite to the performance of its duties." In setting forth the powers and duties of the individual colleges, including the power and duty to appoint, promote, transfer and remove (N.J.S.A. 18A:64-6(g), (h), (i)), the Legislature made certain to avoid obscurities on the issue by specifying that the conduct of the State Colleges shall be in accordance with "the general policies and guidelines set by the board of higher education" (N.J.S.A. 18A:64-6) and that the management of the County Colleges shall be "in accordance with the rules and regulations of the board of higher education". N.J.S.A. 18A:64A-11; see also N.J.S.A. 18A:64A-7; N.J.S.A. 18A:64A-12. The pointed breadth of the aforecited legislative delegation is comparable to other legislative delegations in the educational field such as those dealt with in Jenkins, et al. v. Tp. of Morris School Dist. and Bd. of Ed., 58 N.J. 483 (1971) and in earlier decisions of this Court. See Bd. of Ed. of Elizabeth v. City Coun. of Elizabeth, 55 N.J. 501 (1970); Bd. of Ed., E. Brunswick Tp. v. Tp. Council, E. Brunswick, 48 N.J. 94 (1966); Booker v. Board of Education, Plainfield, 45 *351 N.J. 161 (1965). It leaves us with little room for doubt that the Board has been legislatively vested with power to establish tenure guidelines which it considers educationally desirable so long as those guidelines are reasonable in nature and do not impair any specific statutory provision dealing with tenure. The plaintiffs contend that the guidelines impair their tenure rights under N.J.S.A. 18A:60-1 (see also L. 1973, c. 163) but we are satisfied that they do not. N.J.S.A. 18A:60-1 does not set forth criteria which are to govern the granting of tenure; nor does the recent "Act concerning tenure for certain State and County college faculty members". L. 1973, c. 163 (N.J.S.A. 18A:60-6 et seq.). Nothing in the legislation directs that one whose classroom or professional performance is satisfactory must have his or her contract renewed over the three (N.J.S.A. 18A:60-1) or the five (L. 1973, c. 163) year period so as to enable the acquisition of tenure. Historically many considerations other than unsatisfactory classroom or professional performance have entered into discretionary determinations not to afford tenure and the determinations have not been interfered with judicially. Indeed our decisions to date have broadly upheld such discretionary right to deny tenure even without any accompanying statement of reasons. See Zimmerman v. Board of Education of Newark, 38 N.J. 65 (1962), cert. denied, 371 U.S. 956, 83 S. Ct. 508, 9 L. Ed. 2d 502 (1963); cf. Donaldson v. Board of Education of City of North Wildwood, 115 N.J. Super. 228 (App. Div. 1971), certif. granted, 59 N.J. 272 (1972); Katz v. Board of Trustees of Gloucester County College, 118 N.J. Super. 398 (App. Div. 1972). While some of us would depart from the precedents so as to require a statement of reasons (cf. Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694, 33 L.Ed.2d 570 (1972)), none of us would take the position that the reasons, to be sufficient, must be grounded entirely on unsatisfactory classroom or professional performance. To *352 the contrary we are convinced that well within the contemplation of N.J.S.A. 18A:60-1 and L. 1973, c. 163, the educational priorities and institutional needs may properly be considered, along with the pertinent individual factors, in deciding whether to grant tenure. The plantiffs have directed their attack primarily on the first, second and sixth paragraphs of the Board's resolution. In the first paragraph the Board set forth its educational goal of a college faculty in which "no more than a reasonable proportion" is tenured; this to insure sufficient "flexibility to enable the institution to respond to changing educational needs in the future." In the second paragraph it directed more rigorous review of any prospective reappointment conferring tenure which may bring the proportion of tenured personnel above "its present level." Where the present level is high, such as in excess of 60%, the phraseology of the second paragraph presents no problem. However, where the present level is low, such as 30 or 40%, a problem is presented but it may safely be assumed that in such situation the Board did not at all contemplate freezing the present level for any length of time. The overall purpose, as evidenced throughout the entire resolution, is to avoid the granting of tenure to those not sufficiently qualified and to avoid the granting of tenure in such high proportion as to defeat the needed institutional flexibility. To the extent that any alterations in the language of the resolution consistent with that purpose may be required, particularly in the light of L. 1973, c. 163 which was enacted after the promulgation of the resolution, it may be assumed that they will be made expeditiously by the Board itself; in any event the attack by the plaintiffs before us is not grounded on any deficiencies in draftsmanship but is grounded on basic legal contentions which we are rejecting in this opinion. In the sixth paragraph the Board set forth that procedures should be established for the regular evaluation of "the performance of tenured faculty members." The plaintiffs contend that N.J.S.A. 18A:60-1 makes no provision *353 for such periodic evaluation and they are fearful that it may afford a basis for dismissal beyond that contemplated by the provisions of N.J.S.A. 18A:60-1 and N.J.S.A. 18A:60-2. There would not appear to be any substantial basis for the fear since the resolution is not directed towards dismissal or the grounds therefor. As the Board's counsel asserts, the sixth paragraph represents "an affirmative effort by the Board to foster the professional development of its tenured faculty to improve, polish and expand their skills." L. 1973, c. 163 specifically provides that under guidelines established by the State Board of Higher Education, it shall be the responsibility of each college to establish formal procedure for the career development of the professional staff, including "a systematic and regular evaluation for the purpose of identifying any deficiencies, extending assistance for their correction and improving instruction." We need not pursue the subject matter here for we are not now called upon to determine the grounds of dismissal either under N.J.S.A. 18A:60-1, 2 or L. 1973, c. 163. There will be time enough for that if and when any dismissal charges are formally preferred for deficiencies appearing from the periodic evaluations. In their third and final point the plaintiffs contend that "the unilateral adoption of the Tenure Rules violated the New Jersey Employer-Employee Relations Act." That Act provides in section 7 (N.J.S.A. 34:13A-5.3) that a majority representative of public employees in an appropriate unit may act for all employees in the unit and that the majority representative and designated representatives of the public employer shall meet at reasonable times and "negotiate in good faith" with respect to grievances and "terms and conditions of employment." It also provides that proposed new rules or modifications of existing rules governing "working conditions" shall be negotiated with the majority representative before they are established. The Act is unclear in failing to define "working conditions" or "terms and conditions of employment" as used in section 7 and in *354 failing to specify what subjects are mandatorily negotiable and what subjects are exclusively within management's prerogatives. But it makes clear that its statutory terms may not be viewed so expansively as to negate the Board of Higher Education's overall supervisory responsibilities as set forth in New Jersey's Education Law (Title 18A). See, e.g., section 10 (N.J.S.A. 34:13A-8.1) which explicitly provides that no provision in the Act shall "annul or modify any statute or statutes of this State." In Dunellen Board of Education v. Dunellen Education Association, 64 N.J. 17 (1973), we were recently called upon to decide whether the local board of education's determination to consolidate the chairmanships of the Social Studies Department and the English Department was a proper subject of mandatory negotiation or arbitration under the Employer-Employee Relations Act. We held that it was not, pointing out that the determination to consolidate was predominantly a matter of educational policy within the exclusive management prerogatives of the local board. Similarly in Burlington County College Faculty Association v. Board of Trustees, Burlington County College, 64 N.J. 10 (1973), we held that the fixing of the college calendar involved a major educational determination within the exclusive responsibility of those entrusted with administering the college. See also Board of Education of City of Englewood v. Englewood Teachers Association, 64 N.J. 1 (1973); Rutgers Council of American Assoc. of University Professors v. N.J. Bd. of Higher Education, et al., 126 N.J. Super. 53 (App. Div. 1973); cf. Race, "Collective Bargaining in Higher Education," II Texas Southern L. Rev. 281 (1973); "Collective Negotiations in Higher Education: A Symposium," 1971 Wis. L. Rev. 1. In the aforecited cases we noted that it was "our clear judicial responsibility to give continuing effect to the provisions in our Education Law (Title 18A) without, however, frustrating the goals or terms of the Employer-Employee Relations Act (N.J.S.A. 34:13A-1 et seq.)." Dunellen, *355 supra, 64 N.J. at 24-25. As pointed out earlier in this opinion, the tenure resolutions of the Board of Higher Education were adopted well within the statutory powers and duties set forth in N.J.S.A. 18A:3-13; N.J.S.A. 18A:3-14(h); N.J.S.A. 18A:3-15; N.J.S.A. 18A:3-16; N.J.S.A. 18A:64-6(g), (h), (i). They represent major educational policy pronouncements entrusted by the Legislature to the Board's educational expertise and objective judgment. While the guidelines towards institutional excellence and greater administrative care in the granting of tenure undoubtedly entail individual consequences, they embody only matters not mandatorily negotiable under the principles expressed in Dunellen, supra, 64 N.J. 17, Burlington, supra, 64 N.J. 10, and Englewood, supra, 64 N.J. 1. Cf. Faculty Tenure report (Jossey-Bass Series) supra at 90: "The commission recommends that collective bargaining in colleges and universities not extend to academic freedom and tenure and related faculty personnel matters, and that grievances involving issues of freedom and tenure be referred to academic procedures outside the collective bargaining process." The Legislature has not indicated any disagreement with the Dunellen principles (64 N.J. 17) or their application to date. Nor has it expressed itself on tenure in relation to negotiation except in section 4 of Chapter 163 of the Laws of 1973. That section provides in effect that, notwithstanding the prescribed five-year probationary period, the board of trustees of the college may "as an exceptional action," and by a two-thirds majority of all of its members, grant tenure to "an individual faculty member" after employment for two consecutive academic years. Section 4 then concludes with the following: "The provisions of this section shall not be negotiable as a term and condition of employment under the `New Jersey Employer-Employee Relations Act'." It is noteworthy that in this single statutory mention of tenure in relation to negotiation, mandatory negotiation is specifically excluded. It appears evident to us, particularly in the light *356 of the continuing effect of section 10 of the Employer-Employee Relations Act (N.J.S.A. 34:13A-8.1), that the legislative silence elsewhere may not fairly or sensibly be construed as impairing the Board of Higher Education's exclusive statutory power under the Education Law to promulgate tenure guidelines which are reasonable in nature and which are not in conflict with any specific statutory provision dealing with tenure. Although our present decision supports the Board of Higher Education's position that its tenure guidelines were not mandatorily negotiable, it is not to be taken as support for any notion that such guidelines or alterations therein should be promulgated without full and timely prior consultation with accredited faculty representatives and others interested. On the contrary, we take this occasion to reiterate the views expressed in the following concluding paragraph in Dunellen which may be taken to have general application: "The holding that the consolidation was predominantly a matter of educational policy not mandatorily negotiable does not indicate that the Board would not have been well advised to have voluntarily discussed it in timely fashion with the representatives of the teachers. Peaceful relations between the school administration and its teachers is an ever present goal and though the teachers may not be permitted to take over the educational policies entrusted by the statutes to the Board they, as trained professionals, may have much to contribute towards the Board's adoption of sound and suitable educational policies. Before the passage of New Jersey's Employer-Employee Relations Act (N.J.S.A. 34:13A-1 et seq.) it was recognized that public employees had the right to be heard through their representatives on their proposals and grievances. The Act significantly broadened that right and, with the goal of peaceful labor relations in mind, created fields of mandatory negotiation. It would seem evident that, when dealing in fields with which the teachers are significantly concerned though outside the fields of mandatory negotiation, the end of peaceful labor relations will generally be furthered by some measure of timely voluntary discussion between the school administration and the representatives of its teachers even though the ultimate decisions are to be made by the Board in the exercise of its exclusive educational prerogatives." 64 N.J. at 31-32. Affirmed. *357 For affirmance — Justices JACOBS, SULLIVAN, PASHMAN and CLIFFORD and Judge CONFORD — 5. For reversal — None. NOTES [*] See A.H. Raskin, New York Times, January 16, 1974, p. 66: "The classic conception is that such flexibility is best insured by having roughly half the full-time faculty in tenured positions. The nationwide ratio now is just about at that level." Cf. Lewis B. Mayhew, The Carnegie Commission on Higher Education, p. 103 (Jossey-Bass 1973): "Institutions should be careful not to allow the proportion of the faculties on tenure to exceed approximately 50 percent."

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316 A.2d 560 (1973) STANTON LIGHTING CORPORATION, Employer-Appellant, v. Jay BERNSTEIN, Employee-Appellee. Superior Court of Delaware, New Castle. January 4, 1973. Walter P. McEvilly, Jr., Prickett, Ward, Burt & Sanders, Wilmington, for employer-appellant. Albert L. Simon, Wilmington, for employee-appellee. *561 QUILLEN, Judge: A part-time employee, who was a college student carrying a full academic load, suffered a temporary total disability compensable for the periods from November 15, 1971 through November 22, 1971 and from November 27, 1971 through June 23, 1972. The employee remained a college student carrying a full academic load throughout the periods of disability. The Industrial Accident Board, ruling on the employee's petition for review of compensation agreement and relying on Fitzgerald v. Roy's Flying "A", Del.Super., 266 A.2d 193 (1970), awarded benefits based on the average work week of his employer pursuant to the general standard set forth in the first sentence of 19 Del.C., § 2302(b). The employer has appealed arguing that the "exceptional causes" provision in the final sentence of § 2302(b) should govern and the award should be made on a part-time basis. The statute reads as follows: "(b) If the rate of wages is fixed by the day or hour, his weekly wages shall be taken to be that rate times the number of days or hours in an average work week of his employer at the time of the injury. If the rate of wages is fixed by the output of the employee, then his weekly wage shall be taken to be his average weekly earnings for during so much of the preceding six months as he has worked for the same employer. If, because of exceptional causes, such method of computation does not ascertain fairly the earnings of an employee, then the weekly wage shall be based on the average earnings for six months of an average employee of the same or most similar employment." Since, during the periods of disability, the employee was in the labor market on a part-time basis only, the Board erred in computing benefits on the employer's regular work week. Neither the Fitzgerald case nor Maver v. Dwelling Managers Co., 34 N.J. 440, 170 A.2d 35 (1961), also relied on by the employee, support an award on the general full-time standard in this case. Both cases involved employees who held regular full-time employment in addition to the part-time employment during which injury occurred. Even considering other part-time employment of the employee in this case, he does not fall within the Fitzgerald rationale. Moreover, insofar as New Jersey is concerned, it has not been brought to the Court's attention that the New Jersey statute has a provision similar to the last sentence of 19 Del.C., § 2302(b) and, even in New Jersey, it is not clear that an award would be based on a full-time work week under the facts of this case. See 34 N.J.S.A. § 34:15-37 and Krogman v. Krogman Filter Co., 89 N.J.Super. 16, 213 A.2d 256 (1965), appeal after remand, 91 N.J. Super. 1, 218 A.2d 886 (1966). See also 2 Larsen's, Workmen's Compensation Law, § 60.21, p. 88.200 where the awarding of inflated benefits is criticized if a "residual or catch-all clause" is available. Due to the "exceptional causes" of the employee being primarily a college student during the entire period of disability and thus not generally available during such period for full-time employment, the normal *562 method of computation does not ascertain fairly the earnings of the employee. Compare Hilbert v. Preferred Plating Co., 36 A.D.2d 77, 318 N.Y.S.2d 626 (1971) dealing with a limited wage expectancy of a 16 year old during a period of temporary disability. The relief requested in the petition for review of compensation agreement was to recompute the compensation in accordance with the average work week at the employer's place of business. The Court rules only on that contention. In accordance with the Court's comments above, the petition is without merit. Accordingly, the decision of the Industrial Accident Board is reversed and the Board is instructed to dismiss the petition. It is so ordered.

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978 F. Supp. 1105 (1997) CHEM-NUCLEAR SYSTEMS, INC., Plaintiff, v. ARIVEC CHEMICALS, INC., Lockheed Corp., the United States of America, and the U.S. Dept. of the Air force, Defendants. Civil Action No. 1:95-CV-1809-JTC. United States District Court, N.D. Georgia, Atlanta Division. February 10, 1997. *1106 Frank A. Lightmas, Jr., Atlanta, GA, John F. Stoviak, Philadelphia, PA, for Plaintiff. Leonard Harry Queen, Sr., Douglasville, GA, Richard Allen Horder, Atlanta, GA, Newton G. Quantz, III, Atlanta, GA, Thomas K. Bick, Washington, DC, James R. Schulz, Asst. U.S. Atty., Atlanta, GA, John C. Spinard, Atlanta, GA, Katherine A. Dreyfus, U.S.D.J., Washington, DC, for Defendants. ORDER CAMP, District Judge. This case is before the Court on Defendant Lockheed's Motion for Summary Judgment [# 52-1]; Plaintiff's Motion for Partial Summary Judgment [# 54-1]; the Motion for Summary Judgment by Defendants United States of America and the United States Department of the Air Force (collectively "the United States") [# 55-1]; Defendant Lockheed's Second Motion to Compel [# 57-2]; the United States' Motion to Extend Time to File a Motion to Compel [# 58-1]; and Defendant Lockheed's Motion to Exclude [# 70-1]. Prior to this Order, Defendant Lockheed withdrew its first Motion to Compel [# 44-1], its first Motion for Summary Judgment [# 48-1], and its Motion to Take Additional Discovery [# 57-1]. In addition, a joint motion to reopen discovery [# 73-1] was rendered moot when this Court signed a consent order that provided for additional discovery following the disposition of the various motions for summary judgment. Accordingly, the clerk is DIRECTED to terminate these motions. *1107 Plaintiff has indicated that it does not oppose the United States' Motion to Extend Time to File a Motion to Compel [# 58-1]. Accordingly, this motion is GRANTED. I. Factual Summary This case arose from the remediation, or clean up, of a site located on Basket Creek Road in Douglas County, Georgia ("the BC site"). Plaintiff Chem-Nuclear Systems remediated this site and filed this suit in order to recover the costs of this clean-up from Defendants Lockheed, the United States, Arivec Chemicals, Inc. ("Arivec"), and Young Refining Corporation. Young Refining and Plaintiff have reached a settlement, and therefore, Young Refining has been dismissed from this case. In April 1991, the United States Environmental Protection Agency ("EPA") issued an Administrative Order that required Plaintiff to remediate the BC site. This order, which was made pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), also required Young Refining, Continental Trading Company, and Mr. B.B. Husley to participated in the remediation. In response to this order, Plaintiff alone paid to remove a significant amount of drums, tires, and contaminated soil from the site. Plaintiff spent $7.5 million on this remediation. Plaintiff has sought reimbursement for these costs from the Superfund, and the EPA has denied this application. In this action, Plaintiff asserts three Counts against the various defendants. In Count I, Plaintiff seeks to recover, pursuant to CERCLA § 107(a), which is codified at 42 U.S.C. § 9607(a), the full amount of the costs incurred in remediating the BC site. In Count II, Plaintiff seeks contribution from each Defendant under CERCLA § 113(f), 42 U.S.C. § 9613(f)(1), for each Defendant's proportionate share of the remediation costs. In Count III, Plaintiff asserts a claim of unjust enrichment under state law. Finally, with respect to all of these claims, Plaintiff seeks a declaration of rights. II. Lockheed's Motion to Compel In its Second Motion to Compel [# 57-2], Lockheed seeks the production of two reports that private investigation firms prepared for Plaintiff. Lockheed argues that these reports contain information which is relevant to Plaintiff's claims against Lockheed. In response, Plaintiff argues that these reports are protected as work product and that Lockheed has failed to establish the requirements for the exceptions to the work-product doctrine. Specifically, Plaintiff argues that Lockheed cannot demonstrate the lack of an alternate source for the information sought because Plaintiff has already produced the underlying facts which are contained in these reports. A party can discover "documents and tangible things" that "were prepared in anticipation of litigation" only by showing a substantial need for the material and the inability to obtain the material from another source without "undue hardship." Fed. R. Civ. Pro. 26(b)(3). This standard applies even if an attorney did not prepare the material, and even if the material was prepared in anticipation of previous litigation. Federal Trade Comm'n v. Grolier, Inc., 462 U.S. 19, 25, 103 S. Ct. 2209, 2213, 76 L. Ed. 2d 387 (1983). In this case, the reports are protected under the work-product doctrine. Although Lockheed arguably possesses a "substantial need" for these reports, Lockheed has not demonstrated the inability to obtain this information from another source. Therefore, Plaintiff is not required to produce these documents. The reports at issue are protected as work product under Rule 26(b)(3). Lockheed does not dispute Plaintiff's claim that these reports, which are certainly "documents", were prepared in anticipation of prior litigation. As Grolier establishes, to qualify as work product, the documents need not be prepared in anticipation of the present litigation. Second, Lockheed presents a dubious "substantial need" for these reports. Lockheed alleges that Plaintiff's other responses to discovery requests have been incomplete *1108 and/or misleading. Therefore, Lockheed concludes that these reports are necessary to verify the facts that Plaintiff has disclosed. As Plaintiff argues, the need to verify already discovered information is a novel, and as far as this Court can determine, unprecedented example of a "substantial need." However, this Court will assume, without deciding, that Lockheed has articulated a "substantial need" for the reports. Even if Lockheed possess a "substantial need" for these documents, however, Lockheed has not demonstrated an inability to obtain the material from another source. Plaintiff asserts that, based on the information which Plaintiff has provided, Lockheed could conduct its own investigation of the underlying facts in order to verify the information provided by Plaintiff. In support of this argument, Plaintiff notes that the United States has already attempted to contact one of the witnesses whose statements are contained in the report. Lockheed has not responded to this particular argument. For the foregoing reasons, Lockheed's Second Motion to Compel, which includes Lockheed's motion for sanctions, [# 57-2] is DENIED. III. Lockheed's Motion to Exclude Evidence Lockheed moves to exclude the following five categories of evidence that Plaintiff has offered in support of its Motion for Partial Summary Judgment: (1) the deposition testimony of B.B. Husley, (2) the deposition testimony of C.B.F. Young, (3) Documents listed in Chem-Nuclear's Appendix as "Exhibit P", (4) testimony from a previous toxic tort action, and (5) the expert report and testimony of Anthony Marques, who is Plaintiff's expert. Resolving Lockheed's evidentiary objections is unnecessary at this point. First, in ruling on the various motions for summary judgment, this Court did not rely on the depositions of Mr. Hulsey or Mr. Young; the documents in Plaintiff's "Exhibit P"; or testimony from the previous action. In addition, although this Court considered Mr. Marques' report, this Court did not rely on Mr. Marques' conclusion, which is the focus of Lockheed's motion to exclude, that the waste "handled" by Lockheed was similar to the waste discovered in the BC site. Accordingly, Lockheed's Motion to Exclude [# 70-1] is DENIED. Of course, when this case goes to trial, Lockheed may renew the objections raised in this motion. IV. Motions for Summary Judgment A. Summary Judgment Standard Rule 56(c) of the Federal Rules of Civil Procedure defines the standard for summary judgment: Courts should grant summary judgment when "there is no genuine issue as to any material fact ... and the moving party is entitled to judgment as a matter of law." The substantive law applicable to the case determines which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). "The district court should `resolve all reasonable doubts about the facts in favor of the non-movant,' ... and draw `all justifiable inferences ... in his favor....'" United States v. Four Parcels of Real Property, 941 F.2d 1428, 1437 (11th Cir.1991). The court may not weigh conflicting evidence nor make credibility determinations. Hairston v. Gainesville Sun Publ. Co., 9 F.3d 913, 919 (11th Cir.1993), rh'g denied, 16 F.3d 1233 (1994) (en banc). As a general rule, "[the] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). However, the moving party's responsibility varies depending upon which party bears the burden of proof at trial on the issue in question. For issues upon which the moving party bears the burden of proof at trial, the moving party must affirmatively demonstrate the absence of a genuine issue of material fact as to each element of its claim on that legal issue. *1109 It must support its motion with credible evidence that would entitle it to a directed verdict if not controverted at trial. If the moving party makes such a showing, it is entitled to summary judgment unless the non-moving party comes forward with significant, probative evidence demonstrating the existence of an issue of fact. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.1993) (quoting Four Parcels, 941 F.2d at 1437-38). On the other hand, when the non-moving party bears the burden of proof at trial, the moving party is not required to support its motion with affidavits or other similar material negating the opponent's claim. Instead, the moving party may simply point out to the district court that there is an absence of evidence to support the non-moving party's case on the issue in question. Id. at 1115-16. Of course, the moving party may offer evidence to affirmatively negate a material fact upon which the non-movant has the burden and which is essential to its claim. In either case, the non-moving party may not rely upon allegations or denials in the pleadings, but instead must respond with sufficient evidence to withstand a directed verdict motion at trial. Fed.R.Civ.P. 56(e); Hammer v. Slater, 20 F.3d 1137, 1141 (11th Cir.1994) (citing Fitzpatrick, 2 F.3d at 1116-17). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. An award of summary judgment requires that there be no genuine issue of material fact. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). An issue is not genuine if it is unsupported by evidence, or if it is created by evidence that is "merely colorable" or not significantly probative. Id. at 250, 106 S. Ct. at 2511. Similarly, a fact is not material unless it is identified by the controlling substantive law as an essential element of the non-moving party's case. Id., at 248, 106 S. Ct. at 2510. B. Defendants' Motions for Summary Judgment on Count I The United States argues that it is entitled to summary judgment on Count I of the complaint because Plaintiff cannot, as a matter of law, pursue a claim for "cost recovery" under CERCLA § 107, 42 U.S.C. § 9607. The United States argues that as a "potentially responsible party" ("PRP"), Plaintiff can only pursue claims for contribution under CERCLA § 113, 42 U.S.C. § 9613. Conversely, Plaintiff argues that it can maintain both claims. On a general level, Plaintiff argues that CERCLA §§ 107 and 113 represent distinct theories of recovery which can be maintained by "any persons" — including PRPs. Alternatively, Plaintiff reasons that even if § 113 represents an exclusive remedy for parties who admit to, or have been found liable for, the contamination at issue, a PRP that denies any liability for the contamination is not limited to a § 113 claim for contribution. Despite Plaintiff's well reasoned arguments, recent Eleventh Circuit precedent establishes that Plaintiff cannot maintain a "cost recovery" action under CERCLA § 107, 42 U.S.C. § 9607. Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489 (11th Cir.1996). First, Redwing expressly holds that a § 107 claim for cost recovery is available only to an "innocent owner" of contaminated property. Second, this broad holding implicitly rejects Plaintiff's second argument and stands for the proposition that CERCLA § 113 represents a PRP's exclusive remedy to recover remediation costs even if the PRP denies liability for the contamination. In the Eleventh Circuit, only "an innocent party to the contamination" can maintain an action for cost recovery under § 107. Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1496 (11th Cir.1996). In Redwing, the plaintiff was the original owner of a site that subsequent owners discovered was contaminated. Id. at 1494. The plaintiff denied liability for the contamination under CERCLA, but nonetheless entered into a consent decree with the EPA in which the plaintiff agreed to remediate the site. Id. at 1495. After spending $1.9 million to clean up the site, the plaintiff filed claims under both §§ 107 and 113 to recover these costs from the subsequent owners of the property. Id. *1110 The Court of Appeals concluded, inter alia, that the plaintiff could only pursue a contribution claim under § 113. Id. at 1496. Specifically, the court found that "to bring a cost recovery action based solely on § 107(a) Redwing would have to be an innocent party to the contamination of ..." the site at issue. Id. at 1496. The court noted that the plaintiff's consent orders with the EPA "disavowed" liability, but concluded the plaintiff could not deny its participation in the contamination of the property. Id. In this case, both the factual background and arguments are similar to those addressed in Redwing. As was the case in Redwing, Plaintiff has remediated the site and asserts both claims for contribution and full-cost recovery against the various defendants. In addition, like in Redwing, Plaintiff denies liability under CERCLA but does not assert that it was an innocent owner of the property. Therefore, based on Redwing, Plaintiff cannot maintain an action under § 107 of CERCLA. Although the United States was the only Defendant which argued that Plaintiff could not maintain a § 107 claim, the disposition of Count I on these grounds requires the dismissal of Count I against all Defendants. The implication of the holding in Redwing is that a PRP in Plaintiff's situation is not a proper plaintiff under CERCLA § 107. Therefore, in this case, Plaintiff is not a proper CERCLA § 107 plaintiff with respect to any of the Defendants. Therefore, Count I is DISMISSED with respect to all Defendants. C. Defendants' Motion For Summary Judgment on Plaintiff's Unjust Enrichment Claim 1. The United States' Motion for Summary Judgment On Count III The United States argues that the defense of sovereign immunity mandates the dismissal of Count III. The United States argues that it has not waived its sovereign immunity for Plaintiff's state-law unjust-enrichment claim. Therefore, the United States contends that this Court lacks jurisdiction over this claim. The United States cannot be sued in federal court without a waiver of sovereign immunity. Dalehite v. United States, 346 U.S. 15, 30, 73 S. Ct. 956, 965, 97 L. Ed. 1427 (1953). The absence of a waiver of sovereign immunity deprives this Court of jurisdiction over claims against the United States. Hercules Inc. v. United States, ___ U.S. ___, ___, 116 S. Ct. 981, 985, 134 L. Ed. 2d 47 (1996). In this case, Plaintiff's unjust-enrichment claim must be dismissed. Plaintiff has not argued that the United States has consented to be sued for unjust enrichment claims under state law, and this Court is unaware of any waivers of the United State's sovereign immunity for such claims. Accordingly, Count III of Plaintiff's complaint is DISMISSED WITH PREJUDICE with respect to the United States. 2. Lockheed's Motion for Summary Judgment on Count III Georgia law applies to Plaintiff's unjust enrichment claim, but Georgia law does not definitively resolve the parties' dispute. The parties agree that, under Georgia law, an unjust enrichment claim requires the plaintiff to establish the following: (1) that the plaintiff conferred a benefit on the defendant and (2) that equity requires the defendant to compensate the plaintiff for this benefit. Engram v. Engram, 265 Ga. 804, 463 S.E.2d 12 (1995). However, the parties also apparently agree that no court applying Georgia law has addressed an unjust enrichment claim based on facts that are similar to this case. Despite this lack of direct authority, the majority of courts that have addressed the issue have rejected claims of unjust enrichment in the context of CERCLA §§ 113 and 107 litigation. Generally, these courts have concluded that when a PRP is under a legal duty to remediate a contaminated site, this remediation does not unjustly enrich other PRPs. See e.g., Nielsen v. Sioux Tools, Inc., 870 F. Supp. 435, 443 (D.Conn.1994). In reaching this conclusion, several of these courts have cited § 106 of the Restatement of Restitution which provides that "a person, *1111 who incidentally to the performance of his own duty ... has conferred a benefit upon another, is not thereby entitled to contribution." In re Energy Cooperative, Inc., No. 92 C-2392, 1995 WL 330876 *8 (M.D.Ill. May 30, 1995); Ciba-Geigy Corp. v. Sandoz Ltd., No. 92-4491, 1993 WL 668325 *8 (D.N.J. June 17, 1993); Smith Land & Improvement Corp. v. Rapid-American Corp., No. 86-0116, 1987 WL 56461 (M.D.Pa. Sept.21, 1987), rev'd on other grounds, 851 F.2d 86 (3d Cir.1988), cert. denied, 488 U.S. 1029, 109 S. Ct. 837, 102 L. Ed. 2d 969 (1989). But see CMC Heartland Partners v. General Motors Corp., 1995 WL 228946 *5 (N.D.Ill. April 14, 1995) (holding that § 106 of the restatement does not apply where the plaintiff acted pursuant to a legal duty that the plaintiff shared with the defendant). In this case, Plaintiff cannot pursue a claim for unjust enrichment against Lockheed. Plaintiff does not dispute that, as was the case in Nielsen and Energy Cooperative, it remediated the BC site based on a legal duty which was created by an EPA administrative order. Therefore, similar to the conclusions reached in these cases, even assuming that Lockheed benefited from Plaintiff's remediation, Plaintiff cannot purse an unjust enrichment claim because this benefit accrued by virtue of Plaintiff's performance of its own legal duty. Finally, even the CMC decision, which allowed an unjust enrichment claim in the context of CERCLA litigation, is distinguishable from the present case. In CMC, the court held that a plaintiff who remediated a contaminated cite could pursue an unjust enrichment claim against the present owner of the site. However, in CMC, both the plaintiff and the defendant had been subject to the administrative order that precipitated the plaintiff's remediation. Accordingly, the court concluded that, under § 81 of the Restatement of Restitution, a person who disproportionately discharges his or her portion of a shared legal duty can pursue an unjust enrichment claim against the person who shared the duty. Conversely, in this case, Lockheed was not named in the EPA's administrative order. Thus, when Plaintiff remediated the BC site, Plaintiff discharged a burden that Lockheed did not share. For the foregoing reasons, Lockheed's Motion for Summary Judgment is GRANTED on Count III of the complaint. D. Motions for Summary Judgment by Defendants Lockheed and the United States on Count II, and Plaintiff's Motion for Partial Summary Judgment Against all Defendants 1. Introduction All of the remaining Motions for Summary Judgment turn on the same issue. The parties agree on the elements that CERCLA § 107 requires Plaintiff to establish in order to obtain contribution under CERCLA § 113. The parties also agree that only one of these elements is in dispute — whether Defendants deposited, or "arranged" for the deposit, of hazardous waste in the BC site. Ironically, the parties also agree that no genuine factual dispute exists regarding this issue. Defendants Lockheed and the United States argue that the summary judgment record would not allow a reasonable jury to conclude that either Defendant deposited hazardous waste in the BC cite. Conversely, Plaintiff argues that the summary judgment record would require a reasonable jury to conclude that Defendants Lockheed and the United States deposited hazardous waste in this site. On this final point, the Court disagrees with all three parties. Based on the summary judgment record, a reasonable jury could find that none of the hazardous material "released" at the BC site originated with Lockheed or the United States. On the other hand, a reasonable jury could find that the hazardous material originated with either, or both, of these Defendants. 2. The Elements for Liability Under CERCLA § 107 In order to be entitled to contribution under CERCLA § 113, Plaintiff must establish that Defendants are subject to liability under CERCLA § 107, 42 U.S.C. § 9607(a). Therefore, Plaintiff must establish the following four elements: (1) that the BC site is a "facility" as defined by 42 U.S.C. § 9601(9), *1112 (2) that there was a release, or threatened release, of hazardous materials at the BC site, (3) that the release or threatened release caused Plaintiff to incur costs, and (4) that Defendants are "potentially responsible persons" ("PRPs") as defined in CERCLA § 107, 42 U.S.C. § 9607(a)(1)-(4). 42 U.S.C. § 9607; Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489 (11th Cir.1996); United States v. Amtreco, Inc. 809 F. Supp. 959 (M.D.Ga.1992). CERCLA § 107 establishes the following four general classes of PRPs: (1) the owners of the facility, (2) the operators of the facility, (3) those who "arranged" for the disposal of the waste, and (4) the transporters of the waste to the facility. 42 U.S.C. § 9607(a)(1)-(4); 4 William H. Rodgers, Jr., Environmental Law § 8.12 (1992). In this case, the parties agree that only a fairly narrow issue is in dispute. Defendants concede that the BC site was a "facility" as defined by CERCLA and that a release of hazardous materials occurred at the site. Furthermore, although Defendants dispute the amount of the costs that Plaintiff incurred in the remediation of the site, they do not dispute that Plaintiff in fact incurred costs because of the release. Finally, Plaintiff does not assert that Defendants were the owners of the BC site, the operators of the "facility", or the transporters of the hazardous waste. Therefore, Defendants are entitled to summary judgment unless Plaintiff has produced evidence that would allow a reasonable jury to conclude that Defendants "arranged" for the disposal of hazardous material at the BC site. Conversely, Plaintiff is entitled to summary judgment only if the summary judgment record mandates a finding that Defendants "arranged" for the deposit of hazardous material at the BC site. 3. The Parties' Arguments In support of its Partial Motion for Summary Judgment and in opposition to Lockheed's Motion for Summary Judgment, Plaintiff argues that for a number of years, Lockheed sent various waste materials to Defendant Arivec. Plaintiff contends that these materials were similar to the materials recovered at the BC site. Furthermore, Plaintiff claims that Arivec disposed of its customers' waste, including waste from Lockheed, at the BC site. Therefore, Plaintiff argues that the summary judgment record establishes that Lockheed "arranged" for the disposal of its hazardous waste at the BC site. Alternatively, Plaintiff argues that the evidence of Lockheed's contributions to the hazardous materials is sufficient to preclude summary judgment for Lockheed. Lockheed disputes that it contributed to the waste discovered at the BC site. Lockheed admits that it delivered jet fuel and "waste solvents" to Arivec over the course of several years. Lockheed further concedes that Arivec might have disposed of some of Arivec's by-produces at the BC site. However, Lockheed contends that no evidence exists which establishes a link between the waste that Lockheed sent to Arivec and the hazardous materials found in the BC site. In support of its position, Lockheed argues that Arivec only deposited a very limited type of waste at the BC site. First, Lockheed notes that Arivec was in the business of recycling, not waste disposal. Thus, Lockheed argues that Arivec only disposed of the by-products of its recycling process. Lockheed has introduced evidence that Arivec's recycling of jet fuel produced no by-products. Further, although Arivec's distillation of its customer's waste solvents produced a by-product, Lockheed argues that these by-products were not deposited at the BC site. Accordingly, Lockheed contends that certain drums which Arivec used in its recycling process represent the only possible waste that Arivec could have deposited in the BC site. The parties agree that Arivec used metal drums to collect solvents from its customers and then transported these drums to their recycling center. The parties further agree that at the recycling center, Arivec pumped the solvents out of the drums in order to prepare the drums to be sold to "drum reconditioners." However, it is undisputed that some of the solvents would settle to the bottom of the drums and form a sludge that is called "paint bottoms." The drum reconditioners would not accept drums with "paint bottoms." Therefore, based on these undisputed facts, Lockheed argues that the drums which the reconditioners would *1113 not accept were the only drums that Arivec could have disposed of at the BC site. Based on this premise, Lockheed asserts that Plaintiff has produced no evidence which would allow a jury to conclude that any of these drums contained waste from Lockheed. In other words, Lockheed first contends that the drums with "paint bottoms" represent the only possible waste from Arivec which could have been disposed at the BC site. Therefore, because no evidence exists that establishes a connection between these drums and Lockheed's waste, Lockheed contends that it is entitled to summary judgment. Similar to Lockheed's argument, the United States argues that it is entitled to summary judgment on Count II because no evidence exists which establishes that hazardous materials produced by the United States were deposited in the BC site. In support of this argument, the United States asserts that its records indicate that materials originating from Dobbins Air Force Base were sold to Arivec on only two occasions. The United States argues that both of these sales occurred after the BC site had been closed. Therefore, the United States argues that Plaintiff lacks evidence which establishes that the United States "arranged" for the disposal of hazardous waste at the BC site. Finally, in opposition to Plaintiff's Motion for Partial Summary Judgment, Arivec argues that Plaintiff has not produced sufficient evidence that it deposited hazardous materials in the BC site. Arivec admits that evidence supports the conclusion that Arivec employees dumped a number of drums which may have contained "paint bottoms" in the BC site. However, Arivec argues that no evidence indicates that these drums contained hazardous materials as defined in CERCLA. 4. Defendants' Alleged "Arranger" Liability In order to establish "arranger" liability under CERCLA § 107, the plaintiff need only establish a "minimal causal nexus" between the defendant's waste and "released" substances. United States v. Marisol Inc., 725 F. Supp. 833, 840 (M.D.Pa.1989); United States v. Bliss, 667 F. Supp. 1298 (E.D.Mo.1987) ("[The] structure of CERCLA and its legislative history make it clear that traditional tort notions, such as proximate cause, do not apply."). Specifically, the plaintiff must establish that the defendant's waste was deposited at the site and that hazardous substances "similar" to those contained in the defendant's waste remained at the site when the "release" occurred. U.S. v. Monsanto Co., 858 F.2d 160, 169 (4th Cir. 1988) ("Absent proof that a generator defendant's specific waste remained at a facility at the time of release, a showing of chemical similarity between hazardous substances is sufficient.") cert. denied, 490 U.S. 1106, 109 S. Ct. 3156, 104 L. Ed. 2d 1019 (1989). In some cases, the "minimal causal nexus" that is required to establish "arranger lability" is even more relaxed. United States v. Distler, 803 F. Supp. 46, 52 (W.D.Ky.1992). For example, in Distler, the defendants admittedly shipped their waste to Mr. Distler whose company admittedly deposited hazardous waste in the contaminated sites. The defendants moved for summary judgment arguing that no "specific evidence" indicated that their waste was ultimately deposited in the contaminated site. Id. at 51-52. The court in Distler held that "[w]here a particular generator's waste becomes unidentifiable due to commingling or mismanagement at one location, and unidentifiable waste is later removed to a release site containing the same type of waste, the causal nexus is satisfied." Id. at 52. The court noted that the evidence established that the defendant's waste had been transported to an intermediate site where the waste was commingled with waste from Mr. Distler's other customers. Id. The court then noted that the evidence established that a certain amount of the commingled waste was transported to the contaminated sites. Id. Accordingly, the court concluded that this evidence precluded summary judgment for the defendants. Id. Other courts have discussed similar situations in terms of presumptions and burden shifting. For example, in United States v. Bliss, 667 F. Supp. 1298 (E.D.Mo.1987), Mr. Bliss, who ran a waste disposal business, stored his customers' waste in one tank. Eventually, this commingled waste contaminated *1114 a number of sites which the plaintiff (the EPA) remediated. The defendants, who had sold their waste to Mr. Bliss, argued that the plaintiffs failed to rebut the possibility that all of the defendant's waste had been removed from Mr. Bliss' tanks before the "release" occurred. The court rejected this argument. Specifically, the court held that a "presumption of causation" arises when the plaintiff produces evidence that establishes the following: the defendants delivered waste to a third party, the third party commingled the defendants' waste with other waste, and the commingled waste was "released." Id. at 1311 n. 12. In reaching this conclusion, the court recognized that, as a matter of policy, the generator of the waste "bears the risk that its wastes will become unidentifiable." Id. at 1310. Because the defendants did not rebut this presumption, the court awarded summary judgment to the plaintiff. Id. at 1311. In this case, genuine factual disputes preclude the resolution of this issue on summary judgment. Regardless of whether viewed as satisfying the requisite causal nexus or as shifting the burden to defendants, the evidence is sufficient to allow a reasonable jury to conclude that waste which originated with Lockheed and/or the United States was deposited at the BC site. On the other hand, unlike in Bliss, the evidence is not sufficiently strong to preclude a finding that neither Defendants' waste was deposited in the BC site. First, the evidence indicates that both Lockheed and the United States delivered waste to Arivec. Lockheed admits that over the course of several years it delivered drums filled with waste solvents to Arivec. Similarly, with respect to the United States' shipments to Arivec, Mr. Parivechio Jr., who worked for Arivec for over thirty years, testified that between 1968 and 1970 the Air Force sent drums filled with solvents to Arivec. Although the United States' evidence calls into question the accuracy of Mr. Parivechio's recollections, such issues are for the jury to decide. Second, the parties agree about the general procedures that Arivec employed in handling its customer's waste. After receiving drums filled with solvents, Arivec cleaned and sold many of these drums to "drum reconditioners." However, Arivec stored, and ultimately disposed of, the drums with unremovable "paint bottoms." Third, Arivec "commingled" the drums of its various customers. Arivec apparently stored all of the drums with "paint bottoms" at one location. No evidence exists that Arivec separated these drums according to where the drum originated or that Arivec maintained records of which drums came from which customers. Therefore, once Arivec stored the drums, Defendants' drums became largely indistinguishable from the drums of Arivec's other customers. Fourth, the evidence would allow a reasonable jury to conclude that Arivec deposited an uncertain number of the "commingled" drums at the BC site. Mr. Nunnally, a former Arivec plant manager, testified that he recalled dumping at least 100 drums in the BC site. Of these drums, Mr. Nunnally estimated that about half contained dried "paint bottoms." Finally, the hazardous materials that were "released" at the BC site are "similar" to the materials that Defendants sent to Arivec. As discussed above, evidence indicates that Arivec employees deposited drums with "paint bottoms" in the BC site. These "paint bottoms" were actually unremovable, or "stubborn", sludge at the bottom of the drums that were used to transport waste solvents. The evidence suggests that, in general, these solvents contained a variety of CERCLA hazardous substances including toluene, tetrachloroethylene, and trichloroethylene. The Defendants do not dispute that these hazardous substances were discovered at the BC site. Based on the foregoing evidence, viewed in the light most favorable to Plaintiff, sufficient evidence exists to preclude summary judgment for Defendants. As was the case in Bliss and Distler, Defendants delivered wastes to a third party. The third party "commingled" Defendants' waste and deposited some of this commingled waste in the site at issue. Finally, the substances "released" at the contaminated site were similar *1115 to the waste that was originally delivered to the third party. Lockheed argues that Plaintiff cannot rely on the burden-shifting mechanisms recognized in Bliss because no "commingling" of "paint bottoms" occurred. Lockheed begins with the premise, which appears undisputed, that the hazardous material in the "paint bottoms" represent the only released hazardous material which plausibly can be connected to Lockheed. Based on this premise, Lockheed reasons that Arivec collected drums of waste solvents from its individual customers and then removed as much of the waste solvent as possible from each individual drum. Lockheed argues that any drums with unremovable "paint bottoms" were drums that originated with a specific, individual Arivec customer. Therefore, Lockheed argues that the "paint bottoms", which included the hazardous material at issue, always remained in the separate (i.e. not commingled) drums of Arivec's individual customers. This argument fails to appreciate the rationale behind the Bliss and Distler decisions. The actual commingling of the hazardous substances was not the operative event in these cases. Instead, the commingling of various generators' waste was significant because commingling necessarily renders impossible determining the specific generator of the material. See United States v. Wade, 577 F. Supp. 1326, 1332 (E.D.Pa.1983) ("[S]cientific technique has not advanced to a point that the identity of a generator of a specific quantity of waste can be stated with certainty."). Whether this evidentiary quandary arises because the hazardous material itself is commingled or because various drums containing the hazardous material become indistinguishable is immaterial. In both types of "commingling cases", the policy rational remains the same — a generator "bears the risk that its waste will become unidentifiable." In addition to the foregoing, Plaintiff has produced other evidence that establishes a connection between waste generated by the United States and the "release" at the BC facility. Specifically, Plaintiff's expert testified at his deposition that several of the drums removed from the BC site bore markings that were similar to markings used by the U.S. Department of Defense. Although the United States argues that this evidence is inconsistent with evidence from a prior proceeding, such arguments are relevant to the weight of the evidence and can be raised at trial. Accordingly, even without relying on the relaxed causation requirement under the Distler decision or the burden shifting of the Bliss decision, this evidence would preclude summary judgment for the United States on Plaintiff's contribution claim. Finally, as discussed above, genuine factual disputes exist regarding Arivec's status as an "arranger". Although no evidence contradicts Mr. Nunnally's testimony that he deposited drums in the BC site, a jury is free to disbelieve this testimony. Likewise, a jury could find that Plaintiff failed to establish, by a preponderance of the evidence, that the drums contained hazardous materials. V. Conclusion Defendant Lockheed's Motion for Summary Judgment [# 52-1] is GRANTED with respect to Count III of the complaint and is otherwise DENIED. Plaintiff's Motion for Partial Summary Judgment [# 54-1] is DENIED. The Motion for Summary Judgment by Defendants the United States [# 55-1] is DENIED. Count III of the Complaint is DISMISSED WITH PREJUDICE with respect to Defendant United States. Count I of the complaint is DISMISSED WITH PREJUDICE with respect to all Defendants. Lockheed's Second Motion to Compel [# 57-2] is DENIED. Defendant Lockheed's Motion to Exclude [# 70-1] is DENIED. The United States' Motion to Extend Time to File a Motion to Compel [# 58-1] is GRANTED. The clerk is DIRECTED to TERMINATE the following motions: Lockheed's First Motion to Compel [# 44-1], Lockheed's First Motion for Summary Judgment [# 48-1], Lockheed's Motion to Take Additional Discovery [# 57-1]; and the Joint Motion to Reopen Discovery [# 73-1].

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/1784663/

750 N.W.2d 357 (2008) 275 Neb. 872 COUNTY OF HITCHCOCK, Nebraska, a political subdivision of the State of Nebraska, appellant, v. William M. BARGER, also known as Bill Barger, et al., appellees. No. S-07-105. Supreme Court of Nebraska. June 13, 2008. *358 D. Eugene Garner, Hitchcock County Attorney, for appellant. George G. Vinton, North Platte, for appellees William M. Barger and RanDee L. Barger. *359 HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ. CONNOLLY, J. County of Hitchcock, Nebraska (the County), brought this action to foreclose two tax sale certificates issued for delinquent taxes on real estate owned by William M. Barger and RanDee L. Barger. After the Hitchcock County treasurer issued the certificates to the County, but before the County petitioned for foreclosure, the Bargers filed for chapter 13 bankruptcy. Under 11 U.S.C. § 362(a) (2000), the County was automatically stayed from enforcing its liens when the Bargers filed their bankruptcy petition. Under 11 U.S.C. § 108(c) (2000), the County had 30 days after receiving notice of the bankruptcy dismissal to file its petition in foreclosure. The Bargers argued that the County failed to timely file its petition. The district court agreed and granted the Bargers' motion for summary judgment. The issue is, When did the County receive notice of the bankruptcy dismissal? The Bargers argue that the County received notice when the bankruptcy court sent notice to the County treasurer in March 2002. The County argues the treasurer was not the proper party to receive notice. The County contends that it did not receive notice until June 2002 when the Hitchcock County Board of Commissioners received a letter from William Barger notifying the board of the bankruptcy dismissal. Because the notice to the treasurer was reasonably calculated to apprise the County that the bankruptcy court had dismissed the Bargers' case, we affirm. I. BACKGROUND On July 27, 1998, the County treasurer issued to the County tax sale certificate No. 13-98 for delinquent taxes on real estate owned by the Bargers. This certificate covered property described as the west half of Section 9, Township 4 North, Range 32 West of the 6th P.M., Hitchcock County. On October 1, the treasurer issued to the County tax sale certificate No. 35-98 for delinquent taxes on other real estate the Bargers owned. This certificate covered property described as the northeast quarter of Section 8, Township 4 North, Range 32 West of the 6th P.M., Hitchcock County. In December 2001, before the County petitioned to foreclose the tax certificates, the Bargers filed for chapter 13 bankruptcy. The U.S. Bankruptcy Court for the District of Nebraska dismissed the bankruptcy case in March 2002. The record reflects that on March 22, the bankruptcy court served a notice of dismissal by first class mail on "Hitchcock County Treasurer, P.O. Box 218, Trenton, NE XXXXX-XXXX." The record also contains William Barger's affidavit. The affidavit states that in "mid-June, 2002," he sent a certified letter to the board of commissioners verifying that the notice of dismissal had been received. The minutes of the July 1, 2002, board of commissioners meeting "acknowledged receipt of a `Notice of Dismissal of Chapter 13 Bankruptcy' from William M. Barger, delivered by certified mail on June 13, 2002." On July 15, 2002, the County filed its petition to foreclose on tax certificates Nos. 13-98 and 35-98. In their answer, the Bargers alleged that the certificates were void because the County failed to timely file the petition within the timeframe required under Neb.Rev.Stat. § 77-1902 (Reissue 2003), as extended by 11 U.S.C. § 108(c). The Bargers moved for summary judgment, which the district court granted. The County appeals. *360 II. ASSIGNMENTS OF ERROR The County assigns, restated and consolidated, that the district court erred in deciding the County's petition was untimely and in sustaining the Bargers' motion for summary judgment. III. STANDARD OF REVIEW Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose no genuine issue regarding any material fact or the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.[1] In reviewing a summary judgment, we view the evidence in the light most favorable to the party against whom the judgment is granted and give such party the benefit of all reasonable inferences deducible from the evidence.[2] We review questions of law independently of the lower court's conclusion.[3] IV. ANALYSIS 1. TIME FOR FILING AN ACTION TO FORECLOSE TAXES UNDER NEBRASKA LAW Under § 77-1902, an action to foreclose a lien for taxes represented by a tax sale certificate "shall only be brought within six months after the expiration of three years from the date of sale of any real estate for taxes or special assessments." Here, the treasurer issued certificate No. 13-98 to the County on July 27, 1998. The certificate expired on July 27, 2001. Under § 77-1902, the County had until 6 months later, January 27, 2002, to file its foreclosure petition on No. 13-98. The treasurer issued certificate No. 35-98 to the County on October 1, 1998. That certificate expired on October 1, 2001. Applying § 77-1902, the County had 6 months, until April 1, 2002, to file its foreclosure petition on No. 35-98. But the Bargers' filing for bankruptcy affected these time limits. 2. THE BARGERS' FILING FOR BANKRUPTCY EXTENDED THE TIME IN WHICH THE COUNTY HAD TO FILE THE FORECLOSURE PETITIONS The Bargers filed for bankruptcy in December 2001, triggering the automatic stay under 11 U.S.C. § 362(a). As a result, the County was unable to commence the actions to foreclose the tax liens. The stay continued until the bankruptcy court dismissed the Bargers' case on March 18, 2002. Under § 77-1902, the time for filing the foreclosure petition on No. 13-98 expired on January 27, during the automatic stay. The time for filing the petition on No. 35-98 expired on April 1, about 14 days after the stay terminated. The bankruptcy code offers protection for claimants whose claims might otherwise expire during the pendency of a bankruptcy stay or before, or within a short time after, the claimant learns of the stay's termination. 11 U.S.C. § 108(c) provides, in relevant part: Except as provided in section 524 of this title, if applicable nonbankruptcy law. . . fixes a period for commencing or continuing a civil action in a court other than a bankruptcy court on a claim against the debtor . . . and such period has not expired before the date of the filing of the petition, then such period does not expire until the later of— (1) the end of such period, including any suspension of such period occurring *361 on or after the commencement of the case; or (2) 30 days after notice of the termination or expiration of the stay under section 362 . . . with respect to such claim. When § 108(c) applies, "any time deadline for commencing and continuing the action is extended to 30 days after notice of termination of the stay, if the deadline would have occurred on an earlier date."[4] As mentioned, under § 77-1902, the period for filing the petition on No. 13-98 expired on January 27, 2002, before the stay terminated. The period for filing the petition on No. 35-98 expired on April 1, 2002, 14 days after the stay terminated. Therefore, January 27 and April 1 are the relevant dates for § 108(c)(1). Both dates occurred before the deadline described in § 108(c)(2), so the extension in § 108(c)(2) applies. Under § 108(c)(2), the County had 30 days following notice of the stay's termination to file the foreclosure petition for Nos. 13-98 and 35-98. Therefore, in deciding if the County's petition was timely, we must determine when the County received notice of the bankruptcy dismissal. 3. THE COUNTY RECEIVED NOTICE OF THE BANKRUPTCY DISMISSAL IN MARCH 2002 (a) To Trigger the 30-day Limit in § 108(c)(2), Notice Must Be Reasonably Calculated to Apprise the Claimant That the Stay Has Terminated or Expired The County filed its foreclosure petition on July 15, 2002. The issue is whether July 15 was within 30 days of the County's receiving notice that the bankruptcy court had dismissed the Bargers' bankruptcy. The parties disagree about when the County received that notice. The Bargers contend that the County received notice when the bankruptcy court sent notice of the dismissal to the County treasurer in March. The County contends that it did not receive notice of dismissal when the treasurer received notice because the treasurer was not the proper party to receive the notice. Instead, the County contends that it did not receive notice until it received a letter from William Barger on June 13. Because July 13 fell on a Saturday, the County argues that the petition was timely filed Monday, July 15. The County relies on Neb.Rev.Stat. § 25-510.02(2) (Reissue 1995) to argue that the proper party to receive notice was the Hitchcock County clerk or chief executive officer. Section 25-510.02(2) provides, "Any county . . . of this state may be served by personal, residence, or certified mail service upon the chief executive officer, or clerk." The County's reliance on this section is misplaced. Section 25-510.02(2) falls within chapter 25, article 5, which is entitled "Commencement of Actions; Process." The statute is relevant for determining how to serve a county when commencing an action involving the county—service of process. But the County was not served with notice of the bankruptcy dismissal for purposes of commencing an action involving the County. Therefore, § 25-510.02(2) is irrelevant. The County also argues that the County, acting by and through its board, was the "`holder'" of Nos. 13-98 and 35-98 and was the "`creditor'" for purposes of the bankruptcy proceeding.[5] Thus, according to the County, the board was the proper entity to receive notice of the bankruptcy dismissal, and the board did not receive notice until June 13, 2002. *362 The Bargers argue that under a due process analysis, the proper standard for determining whether notice to the treasurer put the County on notice is whether that notice was "reasonably calculated" to apprise the County of the bankruptcy dismissal.[6] Generally, due process requires notice "reasonably calculated . . . to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections."[7] Although we do not engage in a due process analysis here, we conclude that the "reasonably calculated" standard should apply when deciding whether purported notice is sufficient to trigger the 30-day time limit in § 108(c)(2). The "reasonably calculated" standard helps further the purpose of § 108(c). Section 108(c) protects claimants by preventing a debtor from strategically filing for bankruptcy to shorten a limitations period and using the expiration of the limitations period as a defense.[8] But once a claimant receives proper notice that the stay has expired or terminated, that party has only 30 days under § 108(c)(2) to commence or continue an action. We believe the protection offered by § 108(c) would be undermined if the 30-day limit could be triggered by something less than notice reasonably calculated to apprise the claimant that the stay had terminated or expired. Therefore, we will consider whether notice to the treasurer was reasonably calculated to apprise the County that the automatic stay had terminated. (b) Notice to the Treasurer Was Reasonably Calculated to Apprise the County That the Automatic Stay Had Terminated Another case addressing sufficiency of notice to an entity within a county system is In re Riverchase Apartments, L.P.[9] There, a county argued that it was not bound by the terms of a confirmed reorganization plan because it did not receive notice of the bankruptcy case until after the confirmation. Notice of the events leading up to the confirmation was sent to the county clerk's address. The county argued that the proper address for service of process was that of the county judge or county attorney. The issue was whether notice to the county clerk was reasonably calculated to apprise the county of the pendency of the bankruptcy. The court concluded that it was. According to the court, once the clerk received notice, "delivery to the appropriate person within the County system was the responsibility of the . . . Clerk's Office."[10] The court noted, "`A creditor may chose to organize its business by dividing activities into various departments, [but] it may not use that method of operation as a shield against notice properly sent to the creditor in its name and place of business.'"[11] We find this reasoning persuasive, given the treasurer's duties regarding tax sale certificates. For instance, the treasurer issues the tax sale certificates.[12]*363 The treasurer also keeps a sale book in which the details of the certificates are recorded.[13] Most important, when the county board is the purchaser, as it was here, the treasurer retains custody of the certificate.[14] And in such cases, the treasurer may assign the certificate to any person wishing to buy the certificate.[15] Clearly, the treasurer has many responsibilities relating to the tax sale certificates. Here, the bankruptcy dismissal notice was pertinent to the County's foreclosure actions: In effect, the notice announced the termination of the stay that had prevented the County from initiating the foreclosure of its tax sale certificates. We believe it is reasonable to conclude that once the treasurer received the dismissal notice, the treasurer had a responsibility to deliver the notice to the appropriate entity within the county system. Therefore, notice to the treasurer was reasonably calculated to apprise the board that the bankruptcy court had dismissed the case and that the County could initiate its foreclosure action. In passing, we note that had a party other than the county acquired the tax sale certificates, notice to the treasurer would not have met the "reasonably calculated" standard. The linchpin of our analysis is that the treasurer retained the certificates issued to the County and the relevant parties here are all entities within the county system. It is not unreasonable to expect the treasurer to forward the notice to the proper entity within the county system. Moreover, the treasurer's office was the central clearinghouse for the tax sale certificates. We conclude that the bankruptcy dismissal notice sent to the treasurer was reasonably calculated to apprise the County that the automatic stay was terminated. Therefore, we find that for purposes of § 108(c)(2), the County received notice of the stay's termination in March 2002, when the bankruptcy court sent the dismissal notice to the treasurer. 4. THE COUNTY'S FORECLOSURE PETITION WAS UNTIMELY Under § 108(c)(2), the County had 30 days after notice of the automatic stay's termination to file its foreclosure petition. The County received notice in March 2002 but did not file the petition until July 2002. Therefore, the County's foreclosure petition was untimely. Thus, the district court did not err in granting summary judgment for the Bargers and dismissing the County's petition. V. CONCLUSION We conclude that notice to the treasurer regarding the bankruptcy dismissal was notice reasonably calculated to apprise the County of the automatic stay's termination. Therefore, for purposes of § 108(c)(2), the County received notice of the stay's termination in March 2002. Under § 108(c)(2), the County had 30 days to file its foreclosure petition, but the County did not file the petition until July 2002. Thus, the County's petition was untimely. The district court did not err in granting the Bargers' motion for summary judgment. AFFIRMED. HEAVICAN, C.J., not participating in the decision. NOTES [1] Erickson v. U-Haul Internat., 274 Neb. 236, 738 N.W.2d 453 (2007). [2] Id. [3] See id. [4] 2 Collier on Bankruptcy ¶ 108.04 at 108-13 (rev. 15th ed. 2008). [5] Brief for appellant at 14. [6] Brief for appellees William Barger and Ran-Dee Barger at 8. [7] Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 314, 70 S. Ct. 652, 94 L. Ed. 865 (1950). See, also, In re Estate of Seidler, 241 Neb. 402, 490 N.W.2d 453 (1992). [8] See National Bank of Commerce v. Ham, 256 Neb. 679, 592 N.W.2d 477 (1999). [9] In re Riverchase Apartments, L.P., 184 B.R. 35 (Bkrtcy.M.D.Tenn.1993). [10] Id. at 40. [11] Id., quoting In re Worthing, 24 B.R. 774 (Bkrtcy.D.Conn.1982). [12] Neb.Rev.Stat. §§ 77-1809 and 77-1818 (Reissue 2003). [13] Neb.Rev.Stat. § 77-1812 (Reissue 2003). [14] § 77-1809. [15] Id.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2330379/

930 A.2d 1202 (2007) Appeal of MERRIMACK COUNTY (NEW HAMPSHIRE PUBLIC EMPLOYEE LABOR RELATIONS BOARD). No. 2006-525. Supreme Court of New Hampshire. Argued: April 19, 2007. Opinion Issued: August 23, 2007. *1205 Atlas & Atlas, P.C., of Nashua (Susan A. Atlas, on the brief and orally), for the petitioner. Backus, Meyer, Solomon & Branch, LLP, of Manchester (Jon Meyer and Ellen Purcell, on the brief), and International Chemical Workers Union Council/United Food & Commercial Workers, Local 1046C, of Akron, OH (Randall Vehar, assistant general counsel, on the brief and orally), for the respondent. DALIANIS, J. The petitioner, Merrimack County (county), appeals and the respondent, International Chemical Workers Union Council/United Food & Commercial Workers, Local 1046C (union), cross-appeals a decision of the New Hampshire Public Employee Labor Relations Board (PELRB) ordering the county to implement an arbitrator's award mandating reinstatement of an employee represented by the union. We affirm in part, vacate in part and remand. The record supports the following: The county is a public employer within the meaning of RSA 273-A:1, X (Supp.2006). The union is the exclusive bargaining representative for certain workers at the county's nursing home. The county and the union were signatories to a collective bargaining agreement (CBA). Particularly relevant to this appeal are articles 1, 2, 24 and 25 of the CBA: • Article 1 contained the parties' agreement that "any rights, duties or authority existing by virtue of the New Hampshire Revised Stat[ut]es Annotated or other law shall in no way be abridged or limited" by the CBA and that, to the extent that any CBA provision was inconsistent with "any such law, the provision(s) of law shall prevail." • Article 2 gave the county the exclusive right to manage the nursing home, including the right to discipline or discharge employees, "[e]xcept as specifically limited or abridged by the terms of [the CBA]." • Article 24 provided that "[r]esident abuse/neglect/exploitation" would not be tolerated and that "[a]ny instance of physical, verbal, mental or medical abuse/neglect/exploitation of any resident shall be grounds for immediate termination." • Article 25 contained grievance and arbitration procedures. In the case of arbitration, this article provided that the arbitrator's decision would be "final and binding" if it was "within the scope of authority and power of the Arbitrator set forth within this Agreement." This article also provided: "The function of the Arbitrator is to determine the interpretation of the specific provisions of this Agreement. It is agreed that the arbitrator shall have no authority to add to, subtract from, or modify any terms of this agreement." The CBA expired on March 31, 2002; the parties did not enter into a new CBA until after the events herein described. *1206 Beginning in May 1999, the county employed Melissa Foote as a resident assistant, and later as a licensed nursing assistant (LNA), at the nursing home. Foote also served as a shop steward for the union, participating in contract negotiations and representing bargaining unit members. On October 28, 2002, Foote was working at the nursing home where her duties included performing safety checks on certain nursing home residents every half hour and responding to their calls. At approximately 2:30 p.m., two LNAs found one of the residents sitting in his wheelchair. He had defecated. One LNA thought that the resident should be wearing an adult diaper, but the other was unsure. Foote, as the LNA primarily responsible for this resident, was called to answer this question. Foote responded to the resident's accusation that she had not attended him by pointing a finger in his face and yelling, or loudly interrupting him, to emphasize what she had done that day. Ultimately, this incident was reported to the assistant director of nursing at the nursing home, who filled out a complaint form, asked a social worker to interview the resident, and called Foote and a union representative to her office to discuss what had happened. It was also reported to the New Hampshire Department of Health and Human Services (DHHS). Based upon recommendations from the administrator and assistant administrator of the nursing home, the county's board of commissioners voted to terminate Foote's employment effective November 23, 2002. The administrator testified that he based his recommendation, at least in part, upon Foote's refusal to admit to wrongdoing. The union then filed a grievance on Foote's behalf. The parties proceeded to arbitration. The arbitration issue to which they stipulated was: "Whether there was just cause for the County to terminate Ms. Foote under the collective bargaining agreement? If not, what shall the remedy be?" In its brief to the arbitrator, the county agreed that "under RSA 28:10-a, County employees who have been employed for more than one year are entitled to a `good cause' standard of discharge." According to that brief, the county further agreed that "good cause would be examined under traditional just cause standards." After five days of hearing, the arbitrator found that while Foote had not neglected the resident, she had verbally abused him. The arbitrator further found, however, that her conduct "was no more serious than employees who have continued to work at the Nursing Home," and that had Foote admitted to having verbally abused the resident, she would not have been terminated. Therefore, the arbitrator found that terminating Foote was an "overly harsh and unreasonable penalty" for which the county lacked just cause. The arbitrator ordered the county to reinstate Foote, without back pay or other lost benefits, conditioned upon Foote's taking anger management and abuse/neglect training programs. The county refused to reinstate Foote, prompting the union to file an unfair labor practice charge with the PELRB. The county filed a counterclaim alleging that the union had engaged in an unfair labor practice by demanding Foote's reinstatement. Specifically, the county asserted that the arbitrator's award was void and unenforceable because it exceeded his authority under the CBA and because it violated public policy. The PELRB ruled in the union's favor. This appeal and cross-appeal followed. When reviewing a decision of the PELRB, we defer to its findings of fact, and, absent an erroneous ruling of law, we will not set aside its decision unless the appealing party demonstrates by a clear *1207 preponderance of the evidence that the order is unjust or unreasonable. Appeal of Nashua Police Comm'n, 149 N.H. 688, 689, 827 A.2d 1013 (2003); see also RSA 541:13 (2007). Though the PELRB's findings of fact are presumptively lawful and reasonable, we require that the record support its determinations. Appeal of City of Laconia, 150 N.H. 91, 93, 834 A.2d 329 (2003). I The county first argues that the PELRB erred by enforcing the arbitrator's award because the award exceeded the arbitrator's authority and, therefore, was not final and binding. "A judicial challenge to arbitral authority requires the reviewing court to consider both the CBA and the arbitral submission." Larocque v. R.W.F., Inc., 8 F.3d 95, 96 (1st Cir.1993); see Appeal of Police Comm'n of City of Rochester, 149 N.H. 528, 534, 823 A.2d 757 (2003) (extent of arbitrator's jurisdiction is determined by parties' agreement to arbitrate; parties may agree to submit even question of arbitrability to arbitrator); Local 238 Intern. Broth. Teamsters v. Cargill, Inc., 66 F.3d 988, 991 (8th Cir.1995) ("Once the parties have gone beyond their promise to arbitrate and have actually submitted an issue to an arbiter, we must look both to their contract and to the submission of the issue to the arbitrator to determine his authority." (quotation omitted)). "[T]he overriding concern is whether the contracting parties have agreed to arbitrate a particular dispute, not whether the agreement is within the CBA." Appeal of Police Comm'n of City of Rochester, 149 N.H. at 534, 823 A.2d 757 (quotation and citation omitted). While ordinarily we interpret contractual provisions de novo, see Appeal of Town of Durham, 149 N.H. 486, 487, 821 A.2d 1097 (2003), "the general rule [is] that the interpretation of a CBA is within the province of the arbitrator, subject to certain exceptions recognized by our case law" that are not relevant here. Appeal of State of N.H., 147 N.H. 106, 109, 784 A.2d 695 (2001); see Appeal of City of Manchester, 153 N.H. 289, 294, 893 A.2d 695 (2006) (where PELRB had authority to interpret CBA to determine whether claim was arbitrable, we review PELRB's interpretation of CBA de novo); Appeal of Town of Durham, 149 N.H. at 487-88, 821 A.2d 1097 (same). "[W]hen the parties include an arbitration clause in their CBA, they choose to have disputes concerning constructions of the CBA resolved by the arbitrator." Appeal of State of N.H., 147 N.H. at 109, 784 A.2d 695 (quotation and brackets omitted). "Because the parties have contracted to have disputes settled by an arbitrator chosen by them rather than by a judge, it is the arbitrator's view of the facts and of the meaning of the contract that they have agreed to accept." United Paperworkers Intern. Union, AFL-CIO, v. Misco, Inc., 484 U.S. 29, 37-38, 108 S. Ct. 364, 98 L. Ed. 2d 286 (1987); see Keebler Co. v. Truck Drivers, Local 170, 247 F.3d 8, 10 (1st Cir.2001). For this reason, the PELRB does not regularly have jurisdiction to interpret the CBA when it provides for final and binding arbitration. Appeal of State of N.H., 147 N.H. at 108, 784 A.2d 695. Our review of the arbitrator's interpretation of the CBA is similarly limited. See Georgia-Pacific Corp. v. Local 27, 864 F.2d 940, 944 (1st Cir.1988). Just as the court may not reject the arbitrator's factual findings simply because it disagrees with them, neither may the court reject the arbitrator's interpretation of the CBA simply because the court disagrees with it. See Misco, 484 U.S. at 38, 108 S. Ct. 364. While the arbitrator cannot ignore the plain language of the CBA, because the parties authorized the arbitrator *1208 to give meaning to that language, "a court should not reject an award on the ground that the arbitrator misread the contract." Id. "[A]s long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision." Id.; see Georgia-Pacific Corp., 864 F.2d at 944. The court's task is thus "ordinarily . . . limited to determining whether the arbitrator's construction of the [CBA] is to any extent plausible." Exxon Corp. v. Esso Workers' Union, Inc., 118 F.3d 841, 844 (1st Cir. 1997), abrogated on other grounds by Eastern Associated Coal Corp. v. United Mine Workers, 531 U.S. 57, 121 S. Ct. 462, 148 L. Ed. 2d 354 (2000). "[A]n arbitrator's view of the scope of the issue is entitled to the same deference normally accorded to the arbitrator's interpretation of the collective bargaining agreement." Larocque, 8 F.3d at 97 (quotation and ellipses omitted); see Pelletier v. Auclair Transp. Inc., 109 N.H. 302, 304, 250 A.2d 834 (1969). In looking to the parties' submission, which asked the arbitrator to decide whether the county had "just cause" to terminate Foote and, if not, to formulate a remedy, and in light of the parties' expired CBA, which did not reference "just cause," the arbitrator determined that the "traditional just cause standard" applied to his review of the county's decision. Under this standard, "the arbitrator . . . has the authority to consider the underlying issues and surrounding circumstances necessary to interpret and apply the express provisions of the CBA and reach a final decision." Appeal of City of Manchester, 153 N.H. at 293, 893 A.2d 695. The United States Supreme Court has identified seven criteria for analyzing whether just cause exists: (1) the reasonableness of the employer's position; (2) the notice given to the employee; (3) the timing of the investigation undertaken; (4) the fairness of the investigation; (5) the evidence against the employee; (6) the possibility of discrimination; and (7) the relation of the degree of discipline to the nature of the offense and the employee's past record. Misco, 484 U.S. at 34 n. 5, 108 S. Ct. 364; see Appeal of City of Manchester, 153 N.H. at 293, 893 A.2d 695 (citing seven criteria with approval). Consistent with this standard, the arbitrator examined whether Foote's conduct warranted the maximum penalty under the CBA, and determined that it did not. We cannot say that the arbitrator's interpretation of the CBA and the parties' submission is so implausible as to require reversal. See Misco, 484 U.S. at 38, 108 S. Ct. 364. Nor can we say that the county has demonstrated by a clear preponderance of the evidence that the PELRB's decision to uphold this interpretation is either unjust or unreasonable. See Appeal of Nashua Police Comm'n, 149 N.H. at 689, 827 A.2d 1013. "By requesting that the arbitrator determine whether [the county] had just cause to discharge [Foote], both parties conferred authority upon the arbitrator to decide that issue." Homestake Min. Co. v. United Steelworkers, 153 F.3d 678, 680 (8th Cir.1998) (quotation and brackets omitted). Having been asked whether there was just cause to terminate Foote and, if not, to provide a remedy, "[t]he arbitrator was free to conclude that there was no just cause for discharging [Foote], but that there was just cause for a lesser discipline." Boston Medical Center v. Service Employees Intern. Union, Local 285, 260 F.3d 16, 22 (1st Cir.2001), cert. denied, 534 U.S. 1083, 122 S. Ct. 816, 151 L. Ed. 2d 700 (2002). Our conclusion is consonant with the decisions of other courts. See id. (citing cases). In Bureau of Engraving v. Graphic Communication International Union, 284 F.3d 821, 823-24 (8th Cir.2002), for *1209 instance, as here, the arbitrator ordered the employer to reinstate an employee who had been terminated for accruing thirteen unexcused absences. Unlike the CBA at issue here, the CBA in Bureau of Engraving included a just cause provision. Bureau of Engraving, 284 F.3d at 824. It did not, however, state that thirteen unexcused absences constituted just cause. Id. at 825. As did the parties in this case, the parties in Bureau of Engraving framed the issue for the arbitration as: "Whether the Employer had just cause to terminate the employment of the grievant . . ., and if not, what should be the remedy?" Id. at 824 (quotation omitted). The arbitrator concluded that although the employee had accrued thirteen absences, the employer lacked just cause for terminating her. Id. On appeal, the employer contended that the arbitrator had exceeded his authority by ignoring the plain language of the attendance policy, which provided that the remedy for thirteen unexcused absences was termination, and by conducting a just cause analysis. Id. The court ruled that the parties' submission conferred authority on the arbitrator to conduct a just cause analysis and that the arbitrator's interpretation of the submission was reasonable. Id. at 825. As the court explained: "For reasons known only to it, [the employer] agreed to stipulate to the just cause analysis. . . . Having entered into the just cause stipulation, it is disingenuous for [the employer] to argue now that the arbitrator acted improperly by conducting the very analysis [the employer] asked it to undertake." Id.; see Homestake Min. Co., 153 F.3d at 680 (where employer requested arbitrator to determine whether employer had just cause to discharge employee, employer cannot argue that arbitrator lacked authority to decide this issue); Cargill, Inc., 66 F.3d at 990-91 (same). Similarly, here, having agreed that the arbitrator would apply "traditional just cause standards" and, in its brief to the arbitrator, having itself analyzed the decision to terminate Foote under those standards, the county cannot argue now that the arbitrator acted improperly by analyzing just cause as he did. In its brief to the arbitrator, the county conceded that "for the purposes of this arbitration, good cause would be examined under traditional just cause standards or principles." In keeping with this concession, the county argued that: the CBA permitted the county to discharge Foote; Foote's conduct could not be tolerated; Foote knew or should have known that her conduct would result in discharge; Foote was not entitled to progressive disciplinary or corrective action as such action would have been futile; Foote was not discharged because of anti-union bias; Foote was not disparately treated; and no mitigating circumstances existed that would warrant reducing Foote's termination to a lesser sanction. In short, the county argued the seven criteria set forth in Misco, 484 U.S. at 34 n. 5, 108 S. Ct. 364. Having itself analyzed its decision to terminate Foote under traditional just cause principles, the county cannot fault the arbitrator for engaging in the same analysis. The county argues that under articles 2, 24 and 25 of the CBA, once the arbitrator found that Foote had verbally abused the resident, he lacked the authority to disagree with the county's decision to terminate her. See Poland Spring Corp. v. United Food and Commercial Workers Intern. Union, Local 1445, 314 F.3d 29, 35 (1st Cir.2002), cert. denied, 540 U.S. 818, 124 S. Ct. 177, 157 L. Ed. 2d 35 (2003). To the county, once the arbitrator found that Foote committed an act listed in the CBA as "grounds for immediate termination," he was "not free to fashion a separate remedy apart from the one provided in the parties' agreement." Id. at 34. *1210 The county also contends, contrary to its argument before the arbitrator, that the parties' submission did not ask the arbitrator to apply traditional just cause principles, but rather to apply the CBA's implied definition of "just cause." While the county concedes that the CBA "was silent with respect to the articulation of a just cause standard," the county asserts that "the mere existence of a collectively bargained labor agreement mandates that the employer . . . demonstrate `cause,' `just cause' or `good cause.'" Thus, according to the county, the reference in Article 24(B) to "grounds for termination" was akin to a reference to "just cause," and that under this provision, terminating an employee for verbally abusing a resident constituted per se just cause. See Georgia-Pacific Corp., 864 F.2d at 945. To support its assertions, the county relies upon Georgia-Pacific Corp., 864 F.2d at 945-46, and Poland Spring Corp., 314 F.3d at 34-35. Both of these cases are distinguishable from this case. The CBAs in those cases unambiguously provided that employees could not be terminated except for just cause and expressly included the employee's act within the definition of just cause. See Georgia-Pacific Corp., 864 F.2d at 942; Poland Spring, 314 F.3d at 31. The CBA in the instant appeal does not even use the phrase "just cause." The instant case is, thus, unlike Georgia-Pacific Corp. and Poland Spring, which stand "for the proposition that, once an arbitrator finds that an employee committed some act specifically listed in the [CBA] as providing just cause for termination, the arbitrator is not free to determine that the act does not warrant termination but rather warrants some lesser penalty." Keebler Co., 247 F.3d at 13. When confronted with the CBA and the parties' submission asking him to determine whether just cause existed, we cannot say that the arbitrator unreasonably harmonized the two. See Trailmobile Trail. v. Inter. Un. of Elec. Workers, 223 F.3d 744, 747 (8th Cir.2000) (holding that it was up to arbitrator to harmonize management rights clause with just cause provision of CBA); Metro Chevrolet v. Union de Tronquistas, 835 F.2d 3, 4-5 (1st Cir.1987) (when CBA contains general clause prohibiting termination except for just cause and does not equate certain behavior with just cause, "an arbitrator is empowered to determine whether the employee's action which precipitated the dismissal constitutes just cause"). Had the county wanted the arbitrator to determine only whether Foote had engaged in the conduct of which she was accused, it could have framed the issue accordingly. "If the factual finding were the only bone of contention, why not frame the issue as whether [Foote] committed [abuse]? In essence, [the county] submitted a single question to the arbitrator and now complains that he lacked the authority to answer it." Hartco Flooring v. United Paperworkers of America, Local 14597, 192 Fed.Appx. 387, 391 (6th Cir.2006) (not recommended for full-text publication). Having requested that the arbitrator determine whether Foote was discharged for just cause, the county should "not now be heard to complain that the arbitrator performed the analysis that it requested instead of making a purely factual finding." Trailmobile Trailer, 223 F.3d at 747. Further, while the county's interpretation of the submission may be plausible, "[w]e do not agree that the submission to arbitration requires this interpretation, and the . . . limitations upon review of arbitration awards militate against an interpretation of the submission which would upset the award[ ] in this case." Pelletier, 109 N.H. at 304, 250 A.2d 834; see LB & B Associates v. International Broth., 461 F.3d 1195, 1198 (10th Cir.2006) (while employer's interpretation of CBA's just cause and immediate discharge provisions was *1211 one interpretation, arbitrator read these provisions differently and his interpretation was not unreasonable). The arbitrator's decision that the parties' stipulation "gave him the authority to conduct a just cause analysis is reasonable as well and the interpretation of [the stipulation] [was] within the arbitrator's domain." Bureau of Engraving, 284 F.3d at 825. While the county assumes that engaging in one episode of verbal abuse "equaled just cause for termination, . . . the arbitrator concluded otherwise. That conclusion will not be disturbed here." Id. "Whether the arbitrator's reading of the [CBA and stipulation] was strained or even seriously flawed . . . is irrelevant. The arbitrator arguably construed and applied [them], and this is precisely what the parties bargained for him to do." Bruce Hardwood Floors v. So. Coun. of Indus. Workers, 8 F.3d 1104, 1108 (6th Cir.1993); see LB & B Associates, 461 F.3d at 1200. For all of the above reasons, therefore, we hold that the PELRB did not err as a matter of law by enforcing the arbitrator's award. II The county next asserts that the PELRB erroneously enforced the arbitrator's award because the award violated public policy. "To so find, we must conclude that the PELRB's order contravenes a strong and dominant public policy as expressed in controlling statutes, regulations, common law, and other applicable authority." Appeal of Town of Pelham, 154 N.H. 125, 129, 908 A.2d 780 (2006) (quotation omitted). "[I]n such cases our review is limited to the confines of positive law, rather than general considerations of supposed public interests." Id.; see W.R. Grace & Co. v. Local Union 759, Intern. Union of United Rubber Workers, 461 U.S. 757, 766, 103 S. Ct. 2177, 76 L. Ed. 2d 298 (1983). "In the context of an arbitration award that reinstates a fired employee, the question is not whether the charged conduct offends public policy, or whether some remedy short of unconditional reinstatement . . . might have been preferable. Rather, the sole question is whether the award itself — the order for reinstatement — gives offense." Mercy Hospital v. Massachusetts Nurses Ass'n, 429 F.3d 338, 343 (1st Cir.2005), cert. denied, 547 U.S. 1111, 126 S. Ct. 1939, 164 L. Ed. 2d 663 (2006); see Eastern Associated Coal Corp., 531 U.S. at 62-63, 121 S. Ct. 462. In making this determination, "we must read the pertinent statutes and regulations in light of background labor law policy that favors determination of disciplinary questions through arbitration when chosen as a result of labor-management negotiation." Mercy Hospital, 429 F.3d at 344 (quotation omitted); Eastern Associated Coal Corp., 531 U.S. at 65, 121 S. Ct. 462. Further, "[w]ith a few limited exceptions not relevant here, [we are] bound by [the] arbitrator's findings of fact." Mercy Hospital, 429 F.3d at 344. Thus, we examine "only whether the reinstatement award, on the facts as found by the arbitrator, contravenes an explicit, well-defined, and dominant public policy." Id. at 345. The county argues that there are strong and dominant public policies against reinstating an LNA who has been found to have verbally abused a resident and who fails to understand the wrongful nature of her conduct. To support this argument, the county relies upon 42 C.F.R. § 483.13 (2006). 42 C.F.R. § 483.13 provides that a resident of a long-term care facility, like the nursing home, "has the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion." 42 C.F.R. § 483.13(b). It *1212 also provides that a long-term care facility, like the nursing home, must "[n]ot employ individuals who have been . . . [f]ound guilty of abusing, neglecting, or mistreating residents by a court of law; or . . . [h]ave had a finding entered into the State nurse aide registry concerning abuse, neglect, mistreatment of residents or misappropriation of their property." 42 C.F.R. § 483.13(c)(ii). We disagree that 42 C.F.R. § 483.13 expresses a strong and dominant public policy against reinstating an LNA who has been found by an arbitrator to have engaged in one episode of verbal abuse and/or who fails to admit her wrongdoing. While the regulation precludes nursing homes from employing individuals who have been found guilty by a court of abusing, neglecting or mistreating residents, as those terms are defined elsewhere, and from employing those for whom the State has entered an adverse finding into the State's nurse aide registry, it is silent with respect to reinstating an LNA such as Foote. Foote was not found by a court to have engaged in abuse as that term is used in 42 U.S.C.A. § 3002(1) (Supp.2007). 42 U.S.C.A. § 3002(1) defines "abuse" as the willful "infliction of injury, unreasonable confinement, intimidation, or cruel punishment with resulting physical harm, pain, or mental anguish . . . or . . . deprivation . . . of goods or services that are necessary to avoid physical harm, mental anguish, or mental illness." The arbitrator did not use this definition and we express no opinion as to whether Foote's conduct meets it. Moreover, the regulation is silent with respect to reinstatement. Other provisions in the same statutory and regulatory scheme, however, reveal that hiring (and, by extension, reinstating) an LNA who engages in a single episode of verbal abuse is not precluded. Pursuant to 42 U.S.C.A. § 1395i-3(g) (Supp.2007), a nurse aide may petition the State for removal of his or her name from the registry "upon a determination by the State that . . . the employment and personal history of the nurse aide does not reflect a pattern of abusive behavior or neglect; and . . . the neglect involved in the original finding was a singular occurrence." Thus, under federal law, a nursing home is not precluded from having in its employ an LNA, such as Foote, who was found by an arbitrator to have engaged in one episode of verbal abuse. We therefore conclude that 42 C.F.R. § 483.13 does not "establish a public policy prohibiting [Foote's] reinstatement with [sufficient] clarity." Boston Medical, 260 F.3d at 25. The county mistakenly relies upon the strong and dominant public policy against abuse of nursing home residents as support for its arguments. See, e.g., 42 U.S.C.A. § 1395i-3(c)(1)(A) (Supp.2007) (residents in skilled nursing facility have "[t]he right to be free from physical or mental abuse"). As discussed previously, "the question is not whether [Foote's] conduct violated a public policy in favor of competent nursing care, but whether the order to reinstate her violated that policy." Boston Medical, 260 F.3d at 23; see Eastern Associated Coal Corp., 531 U.S. at 62-63, 121 S. Ct. 462. Similarly misplaced is the county's reliance upon Gogebic Medical Care v. AFSCME Local 992, 209 Mich.App. 693, 531 N.W.2d 728, appeal denied, 450 Mich. 951, 549 N.W.2d 560 (1995). In that case, unlike the instant appeal, the State had entered an adverse finding against the nurse on the State's nurse aide registry. Gogebic Med. Care, 531 N.W.2d at 731. Moreover, Gogebic Medical Care Facility was decided before the United States Supreme Court decided Eastern Associated Coal Corporation and conflicts with our decision in Appeal of Town of Pelham, 154 *1213 N.H. at 129-31, 908 A.2d 780. In Eastern Associated Coal Corporation, the United States Supreme Court "adhered to the so[-]called narrow approach applied by . . . most . . . federal circuit courts, namely that a reviewing court must find the terms of an award, not the underlying conduct at issue, violated public policy." Glanstein, A Hail Mary Pass: Public Policy Review of Arbitration Awards, 16 Ohio St. J. on Disp. Resol. 297, 301 (2001); see Eastern Associated Coal Corp., 531 U.S. at 62-63, 121 S. Ct. 462. We embraced this narrow approach in Appeal of Town of Pelham, 154 N.H. at 129-31, 908 A.2d 780, where we examined whether there was a strong and dominant public policy against reinstating untruthful police department employees. The court in Gogebic Medical Care, 531 N.W.2d at 731, by contrast, examined whether the nurse's underlying conduct violated the general public policy in favor of protecting long-term care facility residents from abuse, not whether there was a strong and dominant public policy against reinstating her. Because we find that no strong and dominant public policy exists against reinstating an employee such as Foote, we hold that the PELRB did not err as a matter of law by ordering the county to comply with the arbitrator's award. See Appeal of Town of Pelham, 154 N.H. at 131, 908 A.2d 780. III In its cross-appeal, the union raises the following issues: (1) whether the PELRB erroneously dismissed the bifurcated "Reserved Issues" without an opportunity for the union to address those matters; (2) whether the PELRB applied the wrong legal standard when it failed to admit or take administrative notice of the union's evidence that would have reinforced its position that State agencies with primary responsibility to protect the public interest had recently taken actions to permit Foote to practice as an LNA; and (3) whether, if reinstatement to her former position is improper, Foote may be reinstated to another position in the county. In light of our decision to affirm the PELRB's decision upholding the arbitration award, we conclude that issues (2) and (3) are moot. With respect to issue (1), the union argues that the PELRB erred when it dismissed the Reserved Issues sua sponte. The record submitted on appeal reveals that the hearing officer's March 2, 2006 decision notified the union that the Reserved Issues would be "administratively dismissed unless either party files a request for further PELRB proceedings within 30 days." The record further reveals that on March 24, 2006, the union filed a request for further PELRB proceedings on the Reserved Issues. Nonetheless, on April 19, 2006, the PELRB dismissed the Reserved Issues as moot. The so-called Reserved Issues involved whether the county violated RSA 273-A:5, I (1999) by: (1) refusing to reinstate Foote in contravention of the arbitrator's award, thereby interfering with her licensing obligations and future job prospects; (2) engaging in anti-union discrimination by refusing to reinstate Foote; and (3) failing or refusing to provide discovery materials in connection with a proceeding before DHHS. The union argues that proving anti-union discrimination would "strengthen [its] request for additional remedies," including attorney's fees and costs. Thus, whether the county engaged in antiunion discrimination by failing to reinstate Foote does not appear to be moot. While the county asserts that the arbitrator already addressed the union's antiunion discrimination claim, the county is mistaken. The arbitrator addressed only whether the county engaged in antiunion discrimination when it terminated *1214 Foote, not whether it did so when it refused to reinstate her. In light of the record submitted on appeal, we therefore vacate the PELRB's dismissal of the Reserved Issues as moot and remand for further proceedings consistent with this opinion. See RSA 273-A:6, IX (1999) (orders and decisions of PELRB shall contain findings of fact and conclusions of law). Affirmed in part; vacated in part; and remanded. GALWAY and HICKS, JJ., concurred; DUGGAN, J., with whom BRODERICK, C.J., joined, dissented. DUGGAN, J., dissenting. Because I believe that the arbitrator fashioned his own brand of industrial justice, and that affirming the PELRB's decision threatens to create unnecessary uncertainty in our state's labor law jurisprudence, I respectfully dissent. I first explain why I disagree with the majority's analysis, and then set forth how I would resolve this case. I The arbitral submission asked the arbitrator to resolve the following inquiry: "Whether there was just cause for the County to terminate Ms. Foote under the collective bargaining agreement? If not, what shall the remedy be?" The majority holds that this submission, combined with the fact that the CBA "did not reference `just cause'" allowed the arbitrator to apply a "`traditional just cause standard'" to essentially exercise his independent judgment to determine the level of discipline for Foote's conduct. Article 24 of the CBA provides: "Any instance of physical, verbal, mental or medical abuse/neglect/exploitation of any resident shall be grounds for immediate termination." (Emphasis added.) The majority apparently concludes that there is a meaningful difference between article 24 and a hypothetical CBA that provides: "Any instance of physical, verbal, mental or medical abuse/neglect/exploitation of any resident shall be just cause for immediate termination." I do not agree. Moreover, drawing such a distinction threatens to create unnecessary uncertainty about how we will resolve future cases. For example, other CBAs might contain language such as: (1) "Any instance of physical, verbal, mental or medical abuse/neglect/exploitation of any resident shall be reason for immediate termination"; or (2) "Any instance of physical, verbal, mental or medical abuse/neglect/exploitation of any resident shall be cause for immediate termination." We will have to decide where, along a continuum, this alternative language falls, or require parties at the bargaining table to use one synonym, i.e. "just cause" over another, i.e. "grounds," "reason" or "cause." Treatises, case law, and dictionaries support the view that "just cause," "cause," "reason" and "grounds" are not distinct concepts when they are used in a collectively bargained-for agreement to describe conduct that serves as an adequate basis for discharge. Those offenses that are "grounds," "cause" or "reason" for termination are necessarily "just cause" for termination. Thus, by expressly and unambiguously providing specific "grounds" for termination, the CBA did reference a "just cause" standard. One respected arbitration treatise observes: Most collective bargaining agreements do, in fact, require "cause" or "just cause" for discharge or discipline. . . . It is common to include the right to suspend and discharge for "just cause," "justifiable cause," "proper cause," "obvious cause," or quite commonly simply *1215 for "cause." There is no significant difference between these various phrases. Elkouri & Elkouri, How Arbitration Works 887 (5th ed. 1997) (brackets omitted; emphasis added). Numerous courts use these terms interchangeably. See, e.g., Intern. Broth. of Firemen v. Nestle Co., Inc., 630 F.2d 474, 475-77 (6th Cir.1980) (repeatedly using "cause" and "grounds" interchangeably); Bruce Hardwood Floors v. UBC, Indus. Work. No. 2713, 103 F.3d 449, 455 (5th Cir.1997) (Benavides, J., dissenting) (using "ground" as synonym for "proper cause"), cert. denied, 522 U.S. 928, 118 S. Ct. 329, 139 L. Ed. 2d 255 (1997); Ohio Off. of Coll. Barg. v. Civ. Serv. Emp., 59 Ohio St. 3d 177, 572 N.E.2d 71, 75 (1991) (using "ground" interchangeably with "causes" and holding, "In essence, dishonesty, as a ground for immediate discharge, is per se just cause."); School Dist. of Beverly v. Geller, 435 Mass. 223, 755 N.E.2d 1241, 1247 n. 8 (2001) (summarizing cases where CBAs list reasons for dismissal and using the terms "just cause," "proper cause," "cause" and "grounds" interchangeably); Marathon Oil Co. v. Local Union No. 283, No. 97-1780, 1998 WL 702357, at *2 (6th Cir. Sept. 25, 1998)(using "grounds" and "cause" synonymously). Neither dictionaries nor thesauruses augur well for a distinction between these terms. See, e.g., American Heritage Dictionary 799 (3d ed. 1992) (definition of "ground" provides: "Often grounds. The underlying condition prompting an action; a cause: grounds for suspicion; a ground for divorce."); Webster's Third New International Dictionary 356 (unabridged ed. 2002) ("cause" means "a good or adequate reason: a sufficient activating factor Random House Dictionary of the English Language 235 (1966) (similar); Black's Law Dictionary 1031 (8th ed. 1999) ("cause" means "A ground for legal action . good cause. A legally sufficient reason. . . . The term is often used in employment-termination cases. — Also termed good cause shown; just cause; lawful cause; sufficient cause."); Legal Thesaurus 67 (2d ed. 1992) ("cause" and "ground" are synonyms). Even the arbitrator, with his broad discretion to construe the CBA, Paperworkers v. Misco, Inc., 484 U.S. 29, 38, 108 S. Ct. 364, 98 L. Ed. 2d 286 (1987), did not specifically offer an interpretation of the word "grounds." Instead, he acknowledged that article 24 provides that "certain kinds of conduct shall be grounds for immediate termination" and "clearly put[s] members of the bargaining unit, including Foote, on notice that they could be subject to immediate termination for incidents of abuse." Then, as the basis for his decision, he appears to have essentially used "just cause" in the arbitral submission as a vehicle to mete out a penalty that he did not find "harsh" or "unreasonable." In so doing, the arbitrator did not engage in contract interpretation, or even permissible contract misinterpretation. See Misco, 484 U.S. at 38, 108 S. Ct. 364 ("[A]s long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision."). Instead, he departed from the CBA to arrive at his own brand of industrial justice, a result that is prohibited by the plain language of the CBA ("the arbitrator shall have no authority to add to, subtract from, or modify any terms of this agreement"), the plain language of the arbitral submission ("Whether there was just cause for the County to terminate Ms. Foote under the collective bargaining agreement? If not, what shall the remedy be?" (emphasis added)), and well-settled, persuasive and *1216 overwhelming authority from jurisdictions across the country. Courts in other jurisdictions consistently hold that where an employment agreement lists certain behavior as grounds or cause for termination, and where there is a finding that such conduct has occurred, the arbitrator is not free to fashion his own remedy. Although the term "just cause" often appears in these cases, its absence does not change the essential reasoning. See, e.g., Poland Spring Corp. v. United Food, Local 1445, 314 F.3d 29, 34-35 (1st Cir.2002), cert. denied, 540 U.S. 818, 124 S. Ct. 177, 157 L. Ed. 2d 35 (2003) ("once an arbitrator finds that an employee has committed an act specifically listed in the collective bargaining agreement as providing just cause for termination, the arbitrator is not free to fashion a separate remedy apart from the one provided by the parties' agreement"); Logistics Personnel v. Truck Drivers Local Union, 6 F. Supp. 2d 650, 655 (E.D.Mich.1998) (where CBA provides that testing positive on drug test is grounds for termination, "the only relevant question, under the collective bargaining agreement, is whether the employee . . . tested positive"); Bruce, 103 F.3d at 452 (where CBA states that employee will be discharged for immoral conduct, arbitrator not free to impose ten-day suspension); Warrior & Gulf Nav. v. United Steelworkers, 996 F.2d 279, 281 (11th Cir.1993), cert. denied, 511 U.S. 1083, 114 S. Ct. 1834, 128 L. Ed. 2d 462 (1994) (where agreement required "just cause" for termination and listed certain acts for which an employee could be discharged, arbitrator lacked discretion to reduce discharge to suspension); Delta Queen Steamboat Co. v. Dist. 2 Marine Eng., 889 F.2d 599, 601, 604 (5th Cir.1989), cert. denied, 498 U.S. 853, 111 S. Ct. 148, 112 L. Ed. 2d 114 (1990) (where agreement provides for termination for "proper cause" and lists behavior that would constitute cause, arbitrator is not free to weigh proved conduct against other factors); Georgia-Pacific Corp. v. Local 27, 864 F.2d 940, 945 (1 st Cir.1988) (where arbitrator uses "just cause" as a means of ignoring specifically enumerated grounds for discharge, he engages in a "patent example of arbitral excess"); S.D. Warren Co. v. United Paperworkers' Intern., 845 F.2d 3, 8 (1st Cir.1988), cert. denied, 488 U.S. 992, 109 S. Ct. 555, 102 L. Ed. 2d 582 (1988) (where agreement provides discharge for "proper cause" and identifies specific causes upon which discharge may be based, arbitrator may not order different remedy for proved conduct); Metro Chevrolet v. Union de Tronquistas, 835 F.2d 3, 5 (1st Cir.1987) (when general "just cause" provision in contract is combined with provision that lists specific conduct upon which discharge may be based, appropriateness of penalty is removed from arbitrator's consideration); Nestle, 630 F.2d at 476 (where contract provides insubordination is basis for termination, arbitrator not free to decide that termination is too severe a penalty); Mistletoe Exp. Serv. v. Motor Expressmen's Union, 566 F.2d 692, 695 (10th Cir.1977) (where agreement provides employer may terminate employment if employee fails to meet certain conditions, arbitrator not free to substitute his own judgment for the employer's decision to terminate); Cty. Coll. of Morris Staff v. Cty. Coll., 100 N.J. 383, 495 A.2d 865 (1985) (where agreement includes list of conduct for which employees can be discharged, arbitrator exceeds his authority by reducing discharge to suspension); Ohio Off. of Coll. Barg., 572 N.E.2d at 75 (agreement provides that abuse of patient is cause to terminate and arbitrator not free to reduce penalty from termination); City of East Providence v. United Steelworkers of Am., Local 15509, 925 A.2d 246, 256 (R.I.2007) (where arbitrator determines that just cause exists, it is "patently irrational" for him to exceed his authority by considering an alternate form of *1217 discipline). There is no persuasive reason that our state's labor law jurisprudence should be different. The cases relied upon by the majority are distinguishable. For example, in Bureau of Engraving v. Graphic Communication International Union, 284 F.3d 821, 824 (8th Cir.2002), the arbitral submission asked the arbitrator to determine "`Whether the Employer had just cause to terminate the employment of grievant, Linda Puffer, and if not, what should be the remedy?'" Thus, in contrast to the instant case, the arbitral submission in Bureau of Engraving made no reference to determining just cause "under the CBA." The argument for allowing an arbitrator to depart from the CBA is much stronger when the arbitral submission, for whatever reason, gives the arbitrator broad authority and does not require him to be grounded in the parties' agreement. In Homestake Mining Co. v. United Steelworkers of America, 153 F.3d 678, 680 (8th Cir.1998), the arbitrator determined that the worker's conduct did not constitute a violation of the employer's rule. Here, by contrast, the arbitrator expressly found that Foote did abuse the elderly resident. In Trailmobile Trailer, LLC v. International Union of Electronic, Electrical, Salaried, Machine and Furniture Workers, 223 F.3d 744, 746 (8th Cir.2000), a handbook provision that listed examples of conduct that "may subject an employee to immediate discharge without warning" was at issue, and the CBA provided that the employer could only enforce "reasonable rules." In the instant case, there is no provision at issue regarding the enforcement of "reasonable rules" and the proscribed conduct is written directly into the CBA. In LB & B Associates v. International Brotherhood, 461 F.3d 1195, 1196 (10th Cir.2006), the CBA provided that an employee who engaged in sexual harassment "`may be subject to immediate discharge.'" Id. (emphasis omitted). The Tenth Circuit expressly noted that if the CBA did not use such permissive language, a different outcome would have obtained. Id. at 1198 n. 2. The CBA here uses the word "shall." See Dancart Corp. v. St. Albans Rubber Co., 124 N.H. 598, 602, 474 A.2d 1020 (1984) (the word "shall" "commonly does have a mandatory character"). In Boston Medical v. Service Employees, Local 285, 260 F.3d 16, 21 (1st Cir. 2001), cert. denied, 534 U.S. 1083, 122 S. Ct. 816, 151 L. Ed. 2d 700 (2002), there was no provision at issue which enumerated specific grounds for dismissal. Instead, the arbitrator was charged with reconciling a management rights clause, reserving to management the exclusive right to discipline, and a clause providing that employees could be discharged only for "just cause." Id. at 20-21. The First Circuit expressly noted that Boston Medical is distinguishable from "a case where the collective bargaining agreement specifically provides for automatic discharge in [certain] situations. . . ." Id. at 23 n. 5. In Local 238 International Brotherhood of Teamsters v. Cargill, Inc., 66 F.3d 988, 990 (8th Cir.1995), the Eighth Circuit found "an inherent tension or ambiguity" between the CBA and a drug and alcohol policy that was not "written verbatim into the collective bargaining agreement." However, the court clearly stated that "[i]f the collective bargaining agreement expressly provided that an employee who refuses to take an alcohol test `will be terminated,' we would agree with the district court's decision that the arbitrator's award `ignored the plain mandatory language' of that agreement. . . ." Id. Here, the CBA states that abuse shall be *1218 grounds for termination. No separate policy is involved. In order to uphold the arbitrator's decision, the majority turns to a seven-factor test. There are two reasons why we should not turn to that test in this case. First, the arbitral submission did not ask the arbitrator to decide: "Whether there was just cause for the County to terminate Ms. Foote? If not, what shall the remedy be?" Instead, it asked the arbitrator to resolve the following concrete inquiry: "Whether there was just cause for the County to terminate Ms. Foote under the collective bargaining agreement? If not, what shall the remedy be?" (Emphasis added.) Thus, the arbitrator's decision had to be anchored in the plain language of the CBA, language that unambiguously lists the conduct that constitutes "grounds" — "just cause" — to terminate. The arbitrator was not free to depart from that language. If the parties had no intention of requiring the arbitrator to enforce the unambiguous contract terms, then they would not have inserted the phrase "under the collective bargaining agreement" into the arbitral submission. Second, as the United States Court of Appeals for the Eleventh Circuit has explained, the type of broad "just cause" analysis embodied by the seven-factor test comes into play when a collective bargaining agreement does not spell out conduct that shall serve as an adequate basis for discharge. Warrior & Gulf Nav., 996 F.2d at 281 n. 8. It is not employed in every single case. The Eleventh Circuit's explanation is not inconsistent with Appeal of City of Manchester, 153 N.H. 289, 293, 893 A.2d 695 (2006), where we cited the seven-factor test with approval, but noted that in deciding just cause issues, the arbitrator has "the authority to consider the underlying issues and surrounding circumstances necessary to interpret and apply the express provisions of the CBA and reach a final decision." (Emphasis added.) Here, the arbitrator examined the surrounding circumstances and found abuse. He was then compelled to apply the express provisions of the CBA. Nothing in Appeal of City of Manchester authorizes the arbitrator to supplant an express CBA provision with a seven-factor test. If we conclude that "just cause" means employing a seven-factor test in every case, then employers will never be able to make specific types of conduct grounds for immediate termination, because anytime they try to do so, their disciplinary decisions will be subject to upset by an arbitrator. The majority states that if the county was concerned that the arbitrator might second-guess its decision to discharge Foote, then it could just have asked the arbitrator to "determine only whether Foote had engaged in the conduct of which she was accused." If that is true, then both sides would have had to have been agreeable to the idea that under the CBA, abuse, alone, does constitute a valid basis to terminate employment. Clearly (and understandably), given the posture of this case, the union would never have made such a concession. In fact, it would seem that firing Foote for abuse was one impetus that led the union to grieve the case in the first place. Furthermore, it seems unfair to fault the county for failing to anticipate that the arbitrator would depart from the plain language of the CBA. To borrow from the First Circuit: The reservation of a right to . . . discharge for [a particular type of conduct] would be wholly ineffective and meaningless if the employer's action, pursuant to such right, is subject to review by an arbitrator on the basis of appropriateness. If the reserved right is construed to mean that the employer can take no disciplinary action in excess of a *1219 reprimand, except at its own risk and subject to severe penalties in case an arbitrator should later be of the opinion that some milder action is appropriate, the effect would be that the employer's inherent right which has not been expressly relinquished by contract is no right at all. Metro Chevrolet, 835 F.2d at 5 (quotation omitted). II Accordingly, I would adopt the reasoning of the cases that hold that where a CBA lists particular types of conduct as grounds for termination, the arbitrator's inquiry ends when he finds that such conduct has occurred. Consistent with those cases, I would hold that although the "arbitrator ha[d] the authority, in the context of a just cause grievance, to consider the underlying issues and surrounding circumstances necessary to interpret and apply the express provisions of the CBA and reach a final decision," Appeal of Town of Pelham, 154 N.H. 125, 128, 908 A.2d 780 (2006), his award nevertheless had to be consistent with the CBA and the arbitral submission. Larocque v. R.W.F., Inc., 8 F.3d 95, 96-97 (1st Cir.1993). Article 24 does not say that termination for abuse may occur only where equitable or "fair." See Poland Spring, 314 F.3d at 38 (Boudin, C.J., concurring). Rather, it states, "Any instance of physical, verbal, mental or medical abuse/neglect/exploitation of any resident shall be grounds for immediate termination." (Emphasis added.) This language unambiguously gives the county just cause to terminate employment where abuse occurs. Moreover, article 2 of the CBA reserves "exclusively" to management the right to "discipline or discharge" employees. Taken together, articles 2 and 24 plainly contemplate that certain management decisions, such as termination for abuse, will not be second-guessed during arbitration. Significantly, as part of the CBA, these two provisions were among the terms and conditions bargained for by the parties and it was not for the arbitrator to ignore them. If the parties desired some other outcome, they were free to negotiate for other language to be included within the CBA. The paramount point to be remembered in labor arbitration is that the power and authority of an arbitrator is totally derived from the collective bargaining agreement and that he violates his obligation to the parties if he substitutes his own brand of industrial justice for what has been agreed to by the parties. Id. at 33 (quotations omitted). The rationale for this holding is persuasive: "contractual provisions like the [termination for abuse] clause . . . are bargained for and inserted precisely to take discretion away from arbitrators charged with enforcing the collective bargaining agreement." Poland Spring, 314 F.3d at 34-35. [T]o sustain [the arbitrator's decision] in this case, notwithstanding the pre-negotiation that took place, [is] the equivalent of . . . saying that the parties engaged in a meaningless act by negotiating the disciplinary rules and incorporating them into the collective bargaining agreement. [It says] that the arbitrator retained the right to fashion remedies even when this contractual authority was not given by the parties. That is not the law. Warren, 845 F.2d at 8. The approach outlined above may seem unfair when applied to the instant case, especially since other employees had not been discharged for abusive conduct. However, the arbitrator was free to interpret the word "abuse," and apply it however he saw fit. He was also free to find that Foote's conduct did not constitute "abuse" within the meaning of the CBA. *1220 That said, once he made a finding that abuse occurred, the CBA unambiguously required him to uphold the county's decision to terminate employment under the CBA. No interpretation of that directive is required, and ignoring it is reversible error. In conclusion, [i]t is not . . . satisfactory to say to employers that they can draft the collective bargaining agreement to clearly restrict the arbitrator from exercising the authority the arbitrator applied here. The realities of what happens at the bargaining table may make this illusory. [The CBA article at issue] was admirably drafted to give management some flexibility and give workers the protection that not every instance of [prohibited conduct] must mean termination. It can be questioned why the price of that flexibility should be to permit an arbitrator to second guess management's judgment to be less forgiving [in certain instances]. Poland Spring, 314 F.3d at 42 (Lynch, J., dissenting). I would not impose such a price, and therefore respectfully dissent. BRODERICK, C.J., joins in the dissent.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2331938/

205 F. Supp. 2d 521 (2002) Eric S. BORD, Plaintiff, v. BANCO DE CHILE and United States Department of Commerce, Defendants. No. CIV.A.01-1360-A. United States District Court, E.D. Virginia, Alexandria Division. May 15, 2002. *522 Robert B. Walker, Law Office of Robert B. Walker, Herndon, VA, for Eric S. Bord, plaintiff. John F. Anderson, Richards McGettigan Reilly & West, PC, Alexandria, VA, for Banco de Chile, defendant. Steven E. Gordon, U.S. Attorney's Office, Alexandria, VA, for U.S. Department of Commerce, defendant. MEMORANDUM OPINION HILTON, Chief Judge. This matter comes before the Court on Defendant Department of Commerce's motion to dismiss. This action arises out of the registration of the domain name banco-chile.com by the Plaintiff. Defendant Banco de Chile subsequently challenged the registration with an arbitration panel at the World Intellectual Property Organization (hereinafter "WIPO"). The WIPO arbitration panel found that the Plaintiff's registration of the domain name banco-chile.com infringed upon the trademark rights of Banco de Chile, and ordered the transfer of the domain name to Banco de Chile. The Plaintiff then brought this action seeking declaratory relief against Banco de Chile under 28 U.S.C. § 2201, 15 U.S.C. § 1114(2)(D)(v), and 15 U.S.C. § 1125. Plaintiff's First Amended Complaint also seeks relief against Defendant United States Department of Commerce (hereinafter "DOC") on three counts: judicial review of agency action pursuant to 5 U.S.C. § 702 et seq. (Count One), unlawful delegation under the United States Constitution (Count Two), and violation of 5 U.S.C. § 575(a)(3) (Count Three). In 1997 a Presidential Directive ordered the DOC to privatize the management of the Internet's Domain Name System. Pursuant to this Directive, the DOC entered into a Memorandum of Understanding with the Internet Corporation for Assigned Names and Numbers (hereinafter "ICANN"), a non-profit corporation. Under the Memorandum of Understanding *523 ICANN agreed to collaborate with the DOC to encourage competition in domain name registration and to develop consistent procedures by which to accredit registrars. In 1999 ICANN entered into an agreement with Network Solutions, Incorporated (hereinafter "NSI") which allowed NSI to continue to register domain names. This agreement also allowed for other entities to serve as domain name registrars, provided that such entities entered into a registrar accreditation agreement with ICANN. These registrar accreditation agreements mandate that all registrars include in their contracts with individual registrants certain provisions. One of the provisions that must be included in each domain name registration contract is a stipulation that the registrant will submit to a non-binding arbitration in the event that a third party claims the registration is abusive and violative of a trademark right. This arbitration procedure mandated by the accreditation agreement is the Uniform Dispute Resolution Procedure (hereinafter "UDRP"). Judicial review of UDRP proceedings is de novo and the UDRP itself applies existing U.S. trademark law. In this action, as against the Defendant DOC, Plaintiff is seeking to enjoin the continued use of the UDRP. Plaintiff alleges that the implementation and use of the UDRP violates the Due Process Clause of the Fifth Amendment, the delegation doctrine, and the Administrative Dispute Resolution Act. Defendant DOC argues that the suit should be dismissed as to the Government because the Plaintiff lacks standing to assert the suit. The Supreme Court clearly explained the requirements for standing in Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992). Over the years, our cases have established that the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an `injury in fact'—an invasion of a legally protected interest which is (a) concrete and particularized ... and (b) `actual or imminent', not `conjectural' or `hypothetical,' ... Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be `fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court.' ... Third, it must be "likely," as opposed to merely "speculative," that the injury will be `redressed by a favorable decision.' Id. at 560, 112 S. Ct. 2130 (internal citations omitted). The burden of proving that standing exists rests with the Plaintiff and must be supported by sufficient evidence. See Marshall v. Meadows, 105 F.3d 904, 906 (4th Cir.1997); Piney Run Preservation Association v. County Commissioners of Carroll County, Maryland, 268 F.3d 255, 263 (4th Cir.2001). This Court agrees with the DOC argument that Plaintiff has failed to meet all three requirements of the test for standing. The Plaintiff in this action has not suffered an injury in fact as a result of any action taken by the DOC that is both concrete and particularized and is neither conjectural nor hypothetical. The Plaintiff, by entering into a private contract with a domain name registrar, agreed to an dispute resolution policy that calls for arbitration. The arbitration process applies existing trademark law to the facts of the case. Further, such arbitration is nonbinding and permits the registrant to seek a de novo review of the dispute in federal court. Clearly under these circumstances the Plaintiff cannot assert that he has suffered *524 a concrete and particularized injury due to the promulgation of the UDRP. Plaintiff voluntarily entered into a private contract containing this dispute resolution policy and, as is evidenced by the current suit in this Court, has not suffered any particularized injury by submitting to the arbitration process. Thus, Plaintiff fails to meet the first test for standing, and cannot maintain this action as against the Defendant DOC. Plaintiff also does not meet the second requirement for standing because he fails to show that his "injury" is causally connected to the actions of the Defendant DOC. See Lujan, 504 U.S. at 560, 112 S. Ct. 2130. ICANN, the corporation which adopted and requires the UDRP, is a private entity. The registrars that include the UDRP as a part of their registration agreements are private entities. The contract between domain name registrants and the registrars are private contracts. Plaintiff in this case entered into a private contract with a domain name registrar which, in turn, had a private contract with ICANN. The DOC was not a party to either of these contracts. Indeed, the DOC's only involvement in the implementation of the dispute resolution policy adopted by ICANN comes from the Memorandum of Understanding (hereinafter "Memorandum") between the DOC and ICANN and a Statement of Policy entitled Management of Internet Names and Addresses (hereinafter "Policy Statement"). The Policy Statement recommended the development of a private entity to oversee the Domain Name System and that such private entity adopt specific policies designed to reduce trademark disputes between domain name registrants and mark owners. In addition, the Policy Statement indicated that the United States would request that WIPO develop recommendations to present to the private entity. None of the recommendations in the Policy Statement required a specific dispute resolution policy be adopted by ICANN. The Memorandum between DOC and ICANN does not bind ICANN in any way to commit to a dispute resolution policy, nor does it require ICANN to compel registrants to agree to a dispute resolution policy. Rather, the Memorandum commits ICANN to generally consider trademark issues in determining how disputes should be resolved. Thus, Plaintiff's allegations that the DOC promulgated the UDRP simply cannot be supported by either the Memorandum nor the Policy Statement. As the Supreme Court held in Lujan, standing cannot be premised upon "the independent action of some third party not before the court". 504 U.S. at 560, 112 S. Ct. 2130. In this case, the Plaintiff alleges that the promulgation of the UDRP has injured him. As was previously discussed, the UDRP is the result of independent contracts between private entities, therefore the promulgation of the UDRP is not causally connected to the actions of the DOC. For these reasons, Plaintiff fails to meet the second requirement for standing. Finally, because the Plaintiff cannot show the connection between the DOC and the promulgation of the UDRP, Plaintiff cannot meet the third test for standing. Plaintiff fails to show that a decision in his favor would redress his "injury." See Lujan, 504 U.S. at 560, 112 S. Ct. 2130. The DOC did not develop the UDRP, nor is the DOC a party to any contract which requires the UDRP. Plaintiff seeks to enjoin the continued use of the UDRP, but an injunction against the DOC would have no effect upon the continued use of this policy by the private entities ICANN and NSI. Therefore, Plaintiff has failed to show that it would be likely that a favorable decision would redress his injury. *525 Because the Plaintiff lacks standing to sue the Department of Commerce, Plaintiff's action against the Department of Commerce should be dismissed. An appropriate order shall issue. ORDER For the reasons stated in the accompanying memorandum opinion, it is hereby, ORDERED that Defendant Department of Commerce's motion to dismiss Counts One (1), Two (2) and Three (3) of Plaintiff's First Amended Complaint is GRANTED and Counts One (1), Two (2) and Three (3) of Plaintiff's First Amended Complaint are hereby DISMISSED.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2331955/

218 S.W.3d 817 (2007) Richard K. REEDER, Appellant, v. Gregory ALLPORT and Deborah Kay Allport, Individually and as next Friends of Janna Kay Allport and Derrick Gregory Allport, Appellees. No. 09-05-525-CV. Court of Appeals of Texas, Beaumont. Submitted November 2, 2006. Decided March 8, 2007. *819 Gerald R. Flatten, Rienstra, Dowell & Flatten, Beaumont, for appellant. David E. Bernsen, Jessica Depew, Brian Mazzola, Law Office of David E. Bernsen, P.C., Beaumont, for appellees. Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ. OPINION STEVE McKEITHEN, Chief Justice. The wife and children of Gregory Allport recovered damages for past and future loss of consortium arising from the accidental shooting of Gregory Allport by Richard K. Reeder. On appeal, Reeder challenges the factual sufficiency of the evidence supporting the jury's verdict and contends the jury awarded excessive amounts for these categories of damages. We hold the jury's findings are supported by factually sufficient evidence and the awards are not excessive. Consequently, we affirm the judgment. Texas law recognizes causes of action for the loss of spousal and parental consortium. Reagan v. Vaughn, 804 S.W.2d 463, 466 (Tex.1990); Whittlesey v. Miller, 572 S.W.2d 665, 666 (Tex.1978). Spousal consortium "primarily consists of the emotional or intangible elements of the marital relationship." Whittlesey, 572 S.W.2d at 666. A spouse may recover for the loss of the injured spouse's affection, solace, comfort, companionship, society, assistance, and sexual relations necessary to a successful marriage. Id. at 666. A child may recover for loss of consortium when a parent suffers serious, permanent, and disabling injuries. Reagan, 804 S.W.2d at 468. Factors considered in determining the amount of nonpecuniary damages for loss of the parent's love, affection, protection, emotional support, services, companionship, care, and society include "the severity of the injury to the parent and its actual effect upon the parent-child relationship, the child's age, the nature of the child's relationship with the parent, the child's emotional and physical characteristics, and whether other consortium giving relationships are available to the child." Id. at 467. Loss of consortium does not include an element of mental anguish. Id. Loss of consortium concerns "subjective states which present some difficulty in translating the loss into a dollar amount." Whittlesey, 572 S.W.2d at 667. The difficulty in quantifying the emotional and intangible elements of non-economic damages does not insulate the verdict from appellate review. Complaints of excessive damages are subject to a factual sufficiency standard of review. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406 (Tex.1998); Pope v. Moore, 711 S.W.2d 622, 624 (Tex.1986) (standard for remittitur of consortium and other damages). We consider and weigh all of the evidence, and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence that the verdict is clearly wrong and unjust. Ellis, 971 S.W.2d at 406-07. On October 17, 2003, Richard Reeder shot Gregory Allport in the neck. Gregory survived, spent twenty days in the hospital, spent another forty-two days in a Houston rehabilitation facility, and spent two and a half weeks in a Beaumont rehabilitation facility. As a result of permanent paralysis, Gregory is confined to a wheelchair. Nineteen months elapsed between *820 the incident and the trial. Gregory and Deborah Allport had been married 23 years at the time of the trial. The jury awarded Deborah $76,000 for past loss of consortium and $1,000,000 for future loss of consortium. The Allports' daughter Janna was seventeen at the time of the incident and nineteen at the time of trial. The jury awarded Janna $100,000 for loss of consortium in the past and $25,000 for loss of consortium in the future. The Allports' son Derrick was in the ninth grade when his father was shot. The jury awarded Derrick $100,000 for loss of consortium in the past and $75,000 for loss of consortium in the future. Reeder challenges the jury's verdict on past loss of consortium for the children and both past and future loss of consortium for Deborah. Other damages found by the jury but not challenged on appeal include the following: $47,101 for past lost earning capacity; $476,000 for future lost earning capacity; $50,000 for past pain and mental anguish; $800,000 for future pain and mental anguish; $100,000 for past disfigurement; $250,000 for future disfigurement; $100,000 for past physical impairment; $150,000 for future physical impairment; $245,000 for past medical care; $100,000 for future medical care; $100,000 for cost of vehicles; $30,000 for cost of wheelchairs; $10,000 for accessibility repairs to the home; $4,400 for past loss of household services; $60,000 for future loss of household services; and punitive damages in the amount of $1,000,000. Reeder concedes that Gregory Allport suffered a severe and disabling injury. The consortium damages awarded by the jury are excessive, he argues, because as a result of the accident, Gregory Allport's relationship with the other members of his family were strengthened, not destroyed. Reeder argues that, unlike cases in which the injured spouse or parent dies or suffers a brain injury that prevents meaningful interplay with the members of the family, Allport still occupies his place as husband and father, and provides the affection and companionship compensated by awards for loss of consortium. Certainly, the Allports' testimony reveals the blessings of a strong marriage and devoted children. Although his wife and each of his children admitted that positive benefits still flow from their relationships with him, Gregory Allport's devastating physical injuries profoundly altered those relationships. After the shooting, Gregory was physically unavailable to the family for nine weeks. Janna Allport testified that Deborah took up the burden of being available for the family while Gregory recuperated. During that time, Gregory and Deborah learned how to catheterize Gregory every four hours and to manually stimulate his bowels to induce defecation. They also learned how to properly treat his skin to prevent ulcers, how to bathe, and how to transfer Gregory into a wheelchair. In the months following the accident, Deborah had to bathe and dress Gregory because he was confined to a bed and could not perform those basic functions for himself. For a time, Gregory was depressed because he had not yet accepted that he was paralyzed. According to Gregory, adapting the daily lives of the members of the family to accommodate his disability was at times very stressful and irritating. While Gregory recuperated in Houston, the children could only see him on weekends. Janna was a varsity cheerleader and did not get to see him much because her school's football team was in the playoffs. Because of the accident and subsequent rehabilitation, Gregory was not present when Janna was named the football sweetheart on senior night and he did not attend her high school graduation ceremony. According to Deborah, Janna had *821 trouble coping with her father's condition. She was rarely at home or would leave the room when Gregory struggled to turn over. Derrick Allport became withdrawn and reacted to the stress of his father's injury and hospitalization by sleepwalking. Both children reported having to help their father get into his wheelchair after falling. Derrick had to drag his nude father from the shower to the living room couch. Derrick feels that he has to help and protect his father. Janna agreed there was a role reversal with her father because of his difficulty performing basic tasks like cooking. Derrick reported that Gregory still helps him with his homework and that the family has grown closer since the shooting. Gregory will give Janna away at her June wedding and she still confides in her father. Gregory and his son cannot go camping or play football like they used to; now their activities together are limited to watching television. Because the spinal cord injury left him without any feeling below the armpits, at age 48, Gregory can no longer engage in sexual intercourse with Deborah. Deborah must sleep on the couch because Gregory cannot roll over if she is in the bed with him. Although she loves her husband dearly, she described having "days that I don't want to wake up, and that I want to run out the door and hide because of the pressure and the loss of emotional contact with my husband, physical contact." Reeder points out that Deborah, Janna, and Derrick have not lost Gregory's love and comfort. However, love and comfort are not the only manifestations of parental consortium. The children were teenagers when the shooting occurred. Gregory's injuries were severe and altered both the physical activities in which he can engage with his children and the way in which they now must perform simple tasks that consume everyday life. Only the $100,000 awards of past lost parental consortium are challenged on appeal. The children experienced a period of physical separation from their father, followed by a period of emotional turmoil until they settled into their new roles in the family. Although Reeder did not destroy the children's consortium-giving relationship with their father, the evidence of Janna's and Derrick's loss of consortium is not so weak or the evidence to the contrary so overwhelming as to make the jury's damages finding manifestly unjust, shocking to the conscience, or a clear demonstration of bias. We hold that factually sufficient evidence supports the findings for loss of parental consortium in the past, and that the jury's award for this element of damages is not excessive. Similarly, the Allports' marriage endured through a grueling hospitalization and rehabilitation. Reeder does not direct our attention to any evidence that Gregory provided the comfort and companionship of a marriage partner to Deborah during that time. Reeder does point to several examples in the record where Deborah revealed that her husband currently provides limited companionship and comfort to her. For instance, when asked if Gregory has been supportive as she juggled jobs, teenagers, and his injuries, Deborah replied, "Of course. He tells me to sit down and take a rest and get off my feet. I need to eat. I'm not taking care of myself. Sit down, quit smoking, quit drinking coffee, eat. He's constantly telling me — trying to tell me to slow down and supporting me." The permanent loss of sexual relations and his shift from a role as helpmate to one as a dependent provides the jury with factually sufficient evidence of a loss of consortium in the future. We hold the jury's findings on past loss of spousal consortium and future loss of spousal consortium are supported by factually sufficient evidence *822 and that the amounts awarded by the jury on these elements of recovery are not excessive. We overrule all of the issues raised on appeal and affirm the judgment. AFFIRMED.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2333622/

143 Conn. 309 (1956) PAUL O. BUCKLEY v. MARGOT F. WEBB Supreme Court of Connecticut. Argued February 7, 1956. Decided April 10, 1956. INGLIS, C. J., BALDWIN, O'SULLIVAN, WYNNE and DALY, JS. Samuel Reich, with whom, on the brief, was Robert A. Epstein, for the appellant (plaintiff). Samuel E. Friedman, with whom was Arthur Levy, Jr., for the appellee (defendant). *310 DALY, J. In his complaint, the plaintiff alleged that he is the owner of an undivided one-half interest in, and is in possession of, a parcel of land in the town of Newtown; that he acquired title to his interest by a deed dated November 22, 1947; and that the defendant is the owner of the other one-half interest but claims sole ownership adverse to the plaintiff's title and ownership. He prayed a judgment determining the rights in or to the land and settling the title. The defendant, in and by her answer, claimed the entire fee, alleging that she obtained it by a deed dated April 18, 1945, which was recorded in the Newtown land records on May 15, 1952. The court, by its judgment, found the issues for the defendant, that she had an absolute title to the land in fee simple as against the plaintiff and that he had no estate or interest in the land. The plaintiff has appealed. The unchallenged material facts which were found are the following: The plaintiff and the defendant were married on October 12, 1941. On December 23, 1941, the plaintiff purchased, for their home, premises in Newtown and assumed the payment of a $15,000 mortgage thereon, held by Helen E. Woodworth. He desired to give the defendant a one-half interest in the property and instructed his New York attorney to prepare a deed which would convey such an interest to her. The attorney prepared an instrument which he believed would carry out the plaintiff's instructions, and on March 15, 1943, the plaintiff executed it. It purported to be a warranty deed conveying title to the premises from him to himself and the defendant as tenants by the entirety. The deed was recorded on March 15, 1943, in the Newtown land records. In March or April of 1945, the parties separated, *311 and thereafter each of them desired a reconciliation. The defendant told the plaintiff that she would resume living with him if he would provide her with some security. As part of the security, she requested sole ownership of the property in question, to be occupied by them as a home. The plaintiff agreed and instructed his attorney to prepare the necessary documents. On April 18, 1945, pursuant to the reconciliation agreement, the parties executed an instrument purporting to be a warranty deed conveying title to the premises from the plaintiff and the defendant to the defendant. The conveyance by the plaintiff to the defendant was unconditional and was intended by him to vest complete ownership of the property in her. On the plaintiff's instructions, his attorney delivered the deed to the defendant's attorney. At the time of delivery of the deed, the plaintiff told the defendant that it would be a blow to his pride if she recorded it and that he did not want people in Newtown to know that the property was not his. The defendant, desirous of preserving her marriage, instructed her attorney to keep the deed for safekeeping. In late 1946 or early 1947, payment of the indebtedness secured by the mortgage upon the property was requested of the plaintiff. He informed the defendant of the request and she said that she would prefer to pay off the mortgage and have the property free and clear. The plaintiff, however, told her that she knew nothing of business and that it was advantageous to have a mortgage on the property. He consulted Attorney John F. Holian of Newtown to learn whether any local bank would be interested in making a loan upon the security of a mortgage which would replace the existing one. After communicating with the local banks, Holian *312 informed the plaintiff that the City National Bank and Trust Company of Danbury would be interested in such a mortgage. The defendant was consulted and consented to the making of a mortgage to it. The plaintiff instructed Holian to prepare whatever papers would be required by the bank and authorized him to search the title of the property as requested by it. The defendant consented and agreed to have Holian act as her attorney in making any arrangements that might be necessary to obtain a mortgage from the bank. Holian made a search of the title. It revealed that the last recorded instrument affecting the title to the property was the deed dated March 15, 1943, which purported to create a tenancy by the entirety in the plaintiff and the defendant. In Holian's opinion that deed did not effectively create a joint estate in the plaintiff and the defendant because (1) a tenancy by the entirety is not recognized in this state and (2) the plaintiff deeded the property to himself. To carry out the recorded intent of the deed dated March 15, 1943, namely, that the defendant and the plaintiff would each have an undivided one-half interest in the property with survivorship, Holian prepared a quitclaim deed to Priscilla Carmody to be executed by the plaintiff and the defendant, and a quitclaim deed to the parties, with survivorship, to be executed by Priscilla Carmody. He also prepared a mortgage deed to be executed by the parties as mortgagors to the bank as mortgagee. On November 22, 1947, Holian brought to the home of the parties the two quitclaim deeds and the mortgage deed. He explained to the plaintiff and the defendant that they were to execute a quitclaim deed to Priscilla Carmody, his secretary, and that she, in return, would quitclaim the property *313 to them, thereby setting up a joint estate with survivorship. The defendant was informed and understood that one of the objects to be attained by the execution of the quitclaim deeds was to correct the deed dated March 15, 1943, so as to create a valid joint estate with survivorship in order that a valid mortgage acceptable to Holian and the mortgagee could be executed. The parties then executed the quitclaim deed in which Priscilla Carmody was named as grantee, and she executed the other one, in which she quitclaimed to them and the survivor of them all her right, title and interest in the premises. The Woodworth mortgage, which the plaintiff had assumed, was released, and the parties executed the mortgage to the bank. The instruments executed on November 22, 1947, were recorded in the Newtown land records on that day. The wording in each of the quitclaim deeds dated November 22, 1947, is clear and unambiguous. The defendant did not, on November 22, 1947, prior thereto or immediately thereafter, tell Holian or any other person that she had the deed which had been executed on April 18, 1945, or that she claimed to be the sole owner of the premises. She allowed the land records to continue to show that the property was jointly owned by the plaintiff and herself until May 15, 1952, when she caused the deed executed on April 18, 1945, to be recorded. The plaintiff did not learn that the 1945 deed was still in existence until a date in May, 1952, when the defendant told him that she had recorded it on May 15, 1952. The court also found, contrary to and inconsistent with findings recited above, the following: The defendant was not informed by anybody that she was signing a quitclaim deed on November 22, 1947. She was unaware that she was doing so. She *314 was not apprised that the other quitclaim deed was being executed by Priscilla Carmody and recorded, and she did not authorize the preparation and execution of such a deed. She did not know and was not advised that the execution of the quitclaim deeds would, in any way, alter her ownership of the property. Neither the plaintiff nor the defendant intended that any right, title or interest in the property should be conveyed by either of the quitclaim deeds executed on November 22, 1947. The plaintiff telephoned the defendant on the morning of May 15, 1952, and told her to have her warranty deed recorded. The court's conclusions were based, at least in part, on these findings. The simple issue, as the parties concede, is whether the quitclaim deed executed by them on November 22, 1947, took from the defendant the title which she had acquired by virtue of the deed of April 18, 1945. In executing the 1947 quitclaim deed, she actually divested herself of all of the right, title and interest she then had in the property unless, because of some equitable reason, it should be held otherwise. She claims that she executed it through mistake. She and the plaintiff executed the identical instrument they intended to execute. The court did not find that she was induced to execute it through fraud or duress; instead, it found that she was informed and understood that one of the objects to be attained was to create a valid joint estate with survivorship in order that a valid mortgage acceptable to Holian and the mortgagee could be executed. Hence there was no mistake, and equity cannot ignore the 1947 quitclaim deed. The court could not reasonably or logically have found that title did not leave the defendant by virtue of it. The findings that neither the plaintiff nor the *315 defendant intended that any right, title or interest in the property should be conveyed by either of the quitclaim deeds of November 22, 1947, are such that they might, as claimed by the plaintiff, properly constitute conclusions, because they might have been reached in whole or in part by deductions from other facts. Horowitz v. F. E. Spencer Co., 132 Conn. 373, 377, 44 A.2d 702. "A deduction from other facts found, whether or not it is called a conclusion, and in whatever part of the finding it is placed, is a conclusion." Wambeck v. Lovetri, 141 Conn. 558, 561, 107 A.2d 395. In so far as relevant facts are found, these conclusions must be tested to see whether they are legally or logically consistent with those facts. Horowitz v. F. E. Spencer Co., supra. This court may intervene when conclusions of the trier are unreasonable or illogical or are contrary to or inconsistent with relevant facts found. Jack Torosian, Inc. v. Guastamachio, 139 Conn. 754, 757, 97 A.2d 116; Missionary Society v. Coutu, 134 Conn. 576, 584, 59 A.2d 732; Calway v. Williamson, 130 Conn. 575, 581, 36 A.2d 377; Hayward v. Plant, 98 Conn. 374, 381, 119 A. 341. As there are inconsistencies in the findings, and the conclusions reached by the trial court are unreasonable, illogical and contrary to and inconsistent with relevant facts found, it is impossible for us to sustain the judgment. The result reached by us makes it unnecessary to discuss the other assignments of error. There is error, the judgment is set aside and a new trial is ordered. In this opinion the other judges concurred.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2333631/

213 S.W.3d 213 (2007) Sam ALDEIN, d/b/a S & R Auto Sales, Appellant, v. Sameer ASFOOR and Mid-Continental Quality Autos, Inc., Respondents. No. ED 88385. Missouri Court of Appeals, Eastern District, Division One. February 6, 2007. *214 Aaron M. Staebell, St. Peters, MO, for appellant. John R. Hamill III, St. Charles, MO, for respondent. NANNETTE A. BAKER, Judge. Introduction Sam Aldein d/b/a S & R Auto Sales ("Plaintiff") appeals the dismissal of his petition filed in the Circuit Court of St. Charles County for lack of personal jurisdiction. Plaintiff contends that Mid-Continental Quality Autos, Inc. ("Mid-Continental") and Sameer Asfoor (jointly, "Defendants") had sufficient contacts with Missouri to satisfy due process requirements and the Missouri long-arm statute. We reverse and remand. Factual and Procedural Background Plaintiff filed a Petition for Breach of Contract on December 13, 2005. In Plaintiff's petition, he alleged: Plaintiff operates S & R Auto Sales in Eastern Missouri. Mid-Continental is a Florida corporation, which buys automobiles throughout the United States for resale overseas. Mr. Asfoor is the president and vice-president of Mid-Continental. Plaintiff entered into an oral contract with Defendants by which Plaintiff would act as an agent for Defendants to purchase automobiles in Missouri. Plaintiff searched for used automobiles at automobile dealers and wholesalers based on Mr. Asfoor's specifications and instructions. Plaintiff contacted Mr. Asfoor for approval before purchasing each automobile. Plaintiff purchased the automobiles as Mid-Continental's agent and in Mid-Continental's name. Defendants agreed to pay Plaintiff $150.00 per automobile that Plaintiff purchased under this agreement. Plaintiff ultimately purchased "hundreds" of automobiles for Defendants. However, Defendants breached the contract by wrongly withholding portions of the $150.00 per automobile fee. Plaintiff suffered damages of $15,325.00. Defendant filed a Motion to Dismiss for lack of personal jurisdiction. Defendant alleged: Mid-Continental is a Florida corporation *215 with its principal place of business in Florida. It is not authorized to do business in Missouri and does not have a registered agent in Missouri. Mr. Asfoor resides in Florida. Neither Mr. Asfoor nor Mid-Continental has been to Missouri. The oral contract for the purchase of automobiles was formed in Florida. Mr. Asfoor filed an affidavit in conjunction with his Motion to Dismiss stating that the Defendants have never been to Missouri for the purpose of conducting business; the business relationship between Plaintiff and Defendants was consummated in Florida; all automobiles purchased by Plaintiff for Defendant were shipped to Florida and invoices were mailed to Florida for payment; Defendants have no business location, employees or bank accounts in Missouri; and Defendants did not agree to be subject to Missouri courts. Plaintiff responded to Defendants' motion, arguing that Defendants' authorization of Plaintiff to negotiate and purchase automobiles on their behalf in Missouri constituted transacting business in Missouri, subjecting Defendants to Missouri's long-arm statute. Plaintiff also claimed that Defendants made the contract in Missouri. In addition, Plaintiff argued that Defendants had sufficient minimum contacts with Missouri in that the automobiles were purchased in Missouri, that Defendants mailed checks to wholesalers in Missouri for automobile purchases, and the contract was formed in Missouri. Plaintiff filed an affidavit attesting to essentially the same facts set out in the response. On June 7, 2006, the trial court granted Defendants' Motion to Dismiss, stating "After full consideration of the parties' pleadings, briefs and oral arguments, this Court sustains Defendants' Motion to Dismiss for Lack of Personal Jurisdiction." Standard of Review When a defendant raises the issue of personal jurisdiction in a motion to dismiss, it is the Plaintiff's burden to show that the trial court's exercise of jurisdiction is proper. Consolidated Elec. & Mechanicals, Inc. v. Schuerman, 185 S.W.3d 773, 775 (Mo.App. E.D.2006). We defer to the trial court's determination of credibility and resolution of conflicting facts, however the sufficiency of the evidence supporting the trial court's determination is a question of law which we review independently on appeal. Id. at 776. The trial court's inquiry is limited to an examination of the petition on its face and the supporting affidavits to determine the limited question of personal jurisdiction. Lindley v. Midwest Pulmonary Consultants, P.C., 55 S.W.3d 906, 909 (Mo. App. W.D.2001). A plaintiff need not prove the elements forming the basis of the defendant's liability, but must show that the acts contemplated by the long-arm statute took place. Id at 910. If the trial court does not state any specific grounds on which it based the dismissal, we must presume the dismissal was based upon one of the grounds presented by the defendant, and we will affirm the dismissal if any ground can sustain the court's action. Id. at 911. Discussion To subject a non-resident defendant to the Missouri long-arm statute, the plaintiff must plead and prove: that the suit arose from any activity enumerated in the long-arm statute, Section 506.500[1]; and that the defendant has sufficient minimum contacts with Missouri to satisfy due *216 process requirements. Schuerman, 185 S.W.3d at 776. Section 506.500 states: 1. Any person or firm, whether or not a citizen or resident of this state, or any corporation, who in person or through an agent does any of the acts enumerated in this section, thereby submits such person, firm, or corporation, and, if an individual, his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of such acts: (1) The transaction of any business within this state; (2) The making of any contract within this state; (3) The commission of a tortious act within this state; (4) The ownership, use, or possession of any real estate situated in this state; (5) The contracting to insure any person, property or risk located within this state at the time of contracting; (6) Engaging in an act of sexual intercourse within this state with the mother of a child on or near the probable period of conception of that child. To determine whether the defendant had sufficient minimum contacts with Missouri, we consider five factors: (1) the nature and quality of the contacts; (2) the quantity of the contacts; (3) the relationship of the cause of action to those contacts; (4) the interest of Missouri in providing a forum for its residents; and (5) the convenience to the parties. Schuerman, 185 S.W.3d at 776. The first three factors are of primary importance and the last two are of secondary importance. Id. The defendant's minimum contacts must be such that maintenance of the action does not offend traditional notions of fair play and substantial justice. Laser Vision Centers, Inc. v. Laser Vision Centers International, SpA, 930 S.W.2d 29, 32 (Mo.App. E.D.1996). The application of the rule will vary with the quality and nature of the defendant's activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. Capitol Indem. Corp. v. Citizens Nat'l Bank of Fort Scott, N.A., 8 S.W.3d 893, 901-02 (Mo.App. W.D.2000). The "purposeful availment" requirement exists to prevent a defendant from being hailed into a particular jurisdiction solely as a result of random, fortuitous or attenuated contacts, or by the unilateral activity of another party or third person. Id. at 902. The court must focus on the relationship among the defendant, the forum and the litigation. Id. In this case, Plaintiff alleged in the petition that Plaintiff purchased "hundreds" of automobiles in Missouri as Mid-Continental's agent and in Mid-Continental's name. Defendants do not deny this allegation. Thus, it is undisputed that Mid-Continental purchased "hundreds" of automobiles in Missouri through Plaintiff. The "transacts any business" prong of the statute must be construed broadly so that even a single transaction may confer jurisdiction under the rule if that is the transaction sued upon. Laser Vision, 930 S.W.2d at 32. Here, there were "hundreds" of transactions, some of which are the transactions on which Plaintiff is suing. Moreover, Defendants purposely availed themselves of the privilege of conducting activities within Missouri. Defendants contracted with Plaintiff to purchase automobiles in Missouri so that Defendants could resell the automobiles for a profit. Plaintiff called Defendants to get approval for each automobile purchased. If the automobile was approved by Mr. Asfoor, *217 Mid-Continental purchased the automobiles through Plaintiff. Defendants mailed checks to wholesalers for the automobiles purchased. Then, Plaintiff shipped the automobiles from Missouri to Florida for resale. These contacts were purposeful and cannot be considered random, fortuitous or attenuated. Nor, as Defendants suggest, were Defendants subjected to contact with Missouri solely by the unilateral activity of Plaintiff. Defendants argue that they should not be subjected to jurisdiction merely "by virtue of the fact that they did business with [Plaintiff] whom they knew lived and worked in Missouri . . ." However, in this argument Defendant mischaracterizes its own actions. Defendant contracted with Plaintiff to purchase automobiles in Defendants' name in the state of Missouri. Plaintiff not only "lived and worked" in Missouri, but also worked for Defendants in Missouri. Plaintiff conducted business with third parties on Defendants' behalf and for the direct benefit of Defendants. Defendants invoked the benefits and protection of Missouri's laws each time Plaintiff purchased an automobile in Mid-Continental's name and shipped it to Defendants. See Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958). Defendants' assertion that they should not be subject to Missouri jurisdiction because they are not authorized to do business in Missouri is without merit. A corporation need not be qualified to do business as a foreign corporation as a prerequisite to long-arm jurisdiction. State ex rel Nixon v. Beer Nuts, Ltd., 29 S.W.3d 828, 834 (Mo.App. E.D.2000). Defendants also argue "[t]he use of mail and the exchange of telephone calls do not constitute the transaction business [sic] within the state of Missouri," citing, inter alia, Schoenlaub, 540 S.W.2d at 35. Here, Plaintiff has alleged much more than the use of mail and telephone calls. Plaintiff alleged that Defendants purchased automobiles in Missouri through Plaintiff, acting as Defendants' agent, and Defendants failed to honor a contract related to the purchase of those automobiles. The fact that Defendants communicated with Plaintiff by telephone and mail does not preclude a finding of personal jurisdiction. Examining the five minimum contacts factors, we find that Defendants had more than sufficient contacts with Missouri to be subjected to personal jurisdiction here. Most significantly, Defendants contracted with Plaintiff, a Missouri resident, for the specific purpose of purchasing automobiles in Missouri. As a result of that contract, Mid-Continental purchased automobiles in Missouri. Thus, the nature and quality of the contacts was significant. Moreover, this case did not arise from a single transaction. These contacts occurred as Defendants purchased "hundreds" of automobiles in Missouri. Also, the cause of action arose out of the contacts forming the basis for jurisdiction. Plaintiff alleged that Defendants did not pay the agreed upon commission for the automobiles he purchased in Missouri and shipped to Defendants. Missouri also has an interest in providing a forum for Plaintiff, a Missouri resident. The fact that the forum may be inconvenient for Mr. Asfoor is outweighed by the other four factors. Defendants cite Scullin Steel Co. v. Nat'l Railway Utilization Corp., 676 F.2d 309 (8th Cir.1982) to support their contention that purchasing items from a seller in one state to ship to another state is insufficient contact to subject the seller to jurisdiction. In Scullin, a purchaser in Philadelphia bought railroad car sets from a Missouri corporation, to be sent from Missouri to Pennsylvania. Id. at 310. The court held that the out-of-state purchaser had insufficient contacts with Missouri and *218 thus Missouri did not have personal jurisdiction. Id. at 314. Scullin is factually distinct from the case at hand. Here, Defendants were not merely buyers purchasing stock items to be shipped. Defendants contracted with Plaintiff to have Plaintiff search for and purchase automobiles on Defendant's behalf to have shipped to Florida. The automobiles had to be within Defendants' specifications. Plaintiff had to get pre-approval from Defendants before he purchased the automobiles. Defendants agreed to pay Plaintiff a commission for his time and effort spent procuring the automobiles. Defendants had more significant contacts with Missouri than the defendant in Scullin, and thus, Scullin is distinguishable from this case. Because Defendants transacted business in Missouri and had sufficient contacts with Missouri to satisfy the due process requirements, the trial court erred in determining that it did not have jurisdiction over Defendants. The decision of the trial court is reversed and the case is remanded for further proceedings consistent with this opinion. CLIFFORD H. AHRENS, P.J., and MARY K. HOFF, J., concur. NOTES [1] All statutory references are to RSMo.2000 unless otherwise noted.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/475843/

800 F.2d 973 123 L.R.R.M. (BNA) 2784, 105 Lab.Cas. P 12,069 MOTION PICTURE & VIDEOTAPE EDITORS GUILD, LOCAL 776,I.A.T.S.E., and International Photographers Guild,Local 659, Plaintiffs/Counter-Defendants/Appellees,v.INTERNATIONAL SOUND TECHNICIANS, CINETECHNICIANS ANDTELEVISION ENGINEERS OF the MOTION PICTURE ANDTELEVISION INDUSTRIES, LOCAL 695 ("LOCAL695"),Defendants/Counter-Claimants/Appellants. No. 85-6559. United States Court of Appeals,Ninth Circuit. Argued and Submitted Aug. 6, 1986.Decided Sept. 26, 1986.As Amended on Denial of Rehearing Dec. 29, 1986.* Jay D. Roth, Taylor, Roth & Bush, Leo Geffner, Geffner & Satzman, Los Angeles, Cal., for plaintiffs/counter-defendants/appellees. Timothy J. Sargent, Bodkin, McCarthy, Sargent & Smith, Los Angeles, Cal., for defendants/counter-claimants/appellants. Appeal from the United States District Court for the Central District of California. Before ANDERSON, PREGERSON, and REINHARDT, Circuit Judges. J. BLAINE ANDERSON, Circuit Judge: 1 Local 776 filed a complaint against Local 695 alleging breach of contract, interference with prospective business advantage, and libel and/or slander. Thereafter, Local 695 filed a counterclaim which, after two amendments, was the subject of a summary judgment motion. The district court granted the motion and Local 695 appeals. The district court based its decision on the failure of Local 695 to exhaust its internal remedies. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291 and the district court's certification under Rule 54(b), Fed.R.Civ.P. We affirm, but on the ground that we decline to interfere with internal union affairs. FACTS 2 This case arises out of an intraunion dispute among three local unions, Locals 695, 659 and 776, and their parent body, the International Alliance of Theatrical Stage Employees (IATSE or Alliance). In October 1973, Local 695 and Local 659 entered into a written jurisdictional agreement (the Agreement) recognizing that a person working as a "Technical Director" belonged within Local 695 and one working as a "Video Controller" belonged within Local 659. The execution of the Agreement was contingent upon approval by the International President because any jurisdictional agreement could only be enforced by IATSE. 3 On October 4, 1973, the Agreement was approved and signed by the International President. It was approved that same month by the General Executive Board (the Board) and ratified by the International Convention of IATSE. However, in 1974, the IATSE Convention passed Resolution 51 which provided that the Board would hold hearings on the entire issue of jurisdiction in the videotape field and issue a decision allocating the appropriate jurisdictions among the various local unions. The Board, after holding hearings, made a decision at its 1975 meeting in San Francisco which granted jurisdiction over technical directors to Local 776 and jurisdiction over video controllers to Local 659. Other classifications of electronic work were awarded to Local 695 and other affected local unions. This action was ratified by the 1976 IATSE Convention. 4 At the 1978 Convention, the delegates voted to vacate Resolution 51 and return all questions of jurisdiction in the videotape field to the International Union. As a result, the matter of jurisdiction was left to the determination of the International President, subject to appeals to the Board and the Convention. The IATSE, first by the International President, then by action of the Board in March, 1983, and subsequently by the action of the 1984 Convention approving the Board's actions, upheld the previous position of the IATSE that technical directors were within the jurisdiction of Local 776. Local 695, in its second amended counterclaim, disputes these and other actions, contending that the 1973 Agreement was never properly rescinded and is therefore still binding upon the parties involved. STANDARD OF REVIEW 5 A review of a district court's grant of summary judgment is de novo. Nevada v. United States, 731 F.2d 633, 635 (9th Cir.1984). In reviewing a grant of summary judgment, the court need only decide whether there are any genuine issues of material fact remaining and whether the substantive law was correctly applied. Amaro v. Continental Can Co., 724 F.2d 747, 749 (9th Cir.1984). DISCUSSION 6 There is a well-established federal policy of avoiding unnecessary interference in the internal affairs of unions. Financial Institution Employees of America, Local 1182 v. NLRB, 752 F.2d 356, 362 (9th Cir.1984); cert. granted, --- U.S. ---, 105 S.Ct. 2318, 85 L.Ed.2d 838 (1985); Jou-Jou Designs, Inc., v. International Ladies Garment Workers Union, 643 F.2d 905, 911 (2d Cir.1981); Tincher v. Piasecki, 520 F.2d 851, 854 (7th Cir.1975). See NLRB v. Boeing Co., 412 U.S. 67, 93 S.Ct. 1952, 36 L.Ed.2d 752 (1973); NLRB v. Allis-Chalmers Manufacturing Co., 388 U.S. 175, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967). "It would seem self-evident that the interpretation of a union's own constitution represents virtually the ultimate in internal affairs, and the impropriety of permitting critical examination, by ... outsiders must be considered offensive." NLRB v. Electra-Food Machinery, Inc., 621 F.2d 956, 958 (9th Cir.1980). As such, absent bad faith or special circumstances, an interpretation of a union constitution by union officials, as well as interpretations of the union's rules and regulations, should not be disturbed by the court. Monzillo v. Biller, 735 F.2d 1456, 1458 (D.C.Cir.1984); Busch v. Givens, 627 F.2d 978, 981 (9th Cir.1980); Stelling v. International Brotherhood of Electrical Workers, Local 1547, 587 F.2d 1379, 1388-89 (9th Cir.1978), cert. denied, 442 U.S. 944, 99 S.Ct. 2890, 61 L.Ed.2d 315 (1979); Vestal v. Hoffa, 451 F.2d 706, 709 (6th Cir.1971), cert. denied, 406 U.S. 934, 92 S.Ct. 1768, 32 L.Ed.2d 135 (1972).1 7 The authority of the delegates to the Convention to pass, and later rescind, Resolution 51 was provided in Article Two, Sec. 2 of the IATSE Constitution: 8 The supreme governmental powers of this Alliance and of its constituent members shall be vested in its duly elected delegates in Convention assembled and when the Convention is not in session, in the International Officers duly elected by the delegates or appointed in accordance with the laws herein provided. 9 After rescinding Resolution 51, the delegates voted to return all questions of jurisdiction in the videotape field to the International Union. Pursuant to this order, the International President had the authority to determine in which local union technical directions belonged. 10 In addition, the International President acted pursuant to the powers granted him by the IATSE Constitution. Article Seven, Sec. 6 gives the President the power to interpret "the laws of this Alliance as contained in this Constitution and By-Laws" and states that his decisions shall be binding on all members and local unions. That same provision also states that the President "shall render decisions upon questions of law where the Constitution and By-Laws contain no express provision for the determination thereof." Furthermore, Article Seven, Sec. 14 gives to the President: 11 those duties usually devolving upon the International President or executive officer of similar voluntary organizations and his authority shall be that ordinarily conferred upon similar officers having broad executive powers and in construing this section it is the desire of this Alliance to insist upon a construction which will support the actions of the International President in carrying out the expressed purposes of the Alliance ..., and the International President shall have ... the power to issue such rules, regulations, orders, or mandates as he may deem necessary or advisable in the conduct of his said office. 12 Moreover, Article Nineteen, Sec. 21 vests the final resolution of jurisdictional disputes between local unions in the International President: 13 If any affiliated Local Union shall have a grievance against another affiliated Local Union, or if there shall be a disagreement between Local Unions respecting their respective jurisdiction, membership or policies, such grievances or disputes shall be referred by the Local Unions to the International President for his decision and his decision shall be binding upon the Local Unions involved. 14 The plain language of the IATSE Constitution authorized the actions taken by the delegates at the conventions, the Board, and the International President. Their actions were neither unfair nor unreasonable. CONCLUSION 15 Absent a specific limitation in a union constitution, this court will not interfere with the efforts of a union's leaders to manage the affairs of their organization. A division of jurisdiction among local unions is one such area into which this court declines to interfere. Disputes between an international and its locals, or disputes between locals, are best left for internal settlement. 16 A written agreement between local unions, even if subsequently ratified by the international, cannot establish a permanent, immutable allocation of jurisdiction among the locals or foreclose other locals from asserting a claim to such work. In view of the broad powers ordinarily given internationals under their constitutions and bylaws, we conclude that such agreements are subject to revision, review or cancellation by the international, so long as that body follows the procedures prescribed in its charter. 17 Accordingly, the district court's grant of summary judgment is 18 AFFIRMED. * The Order amending this opinion is published at 806 F.2d 1410 1 We do not intend to suggest by our discussion in the text that the district court did not have jurisdiction over the suit as an initial matter. See United Ass'n of Journeymen of Plumbing Industry, AFL-CIO v. Local 334, 452 U.S. 615, 627 [101 S.Ct. 2546, 2553, 69 L.Ed.2d 280] (1981) (holding that Sec. 301 grants the federal courts jurisdiction over disputes between locals and internationals regarding union constitutions, but leaving open the question of 'the substantive law to apply')

01-03-2023

08-23-2011

https://www.courtlistener.com/api/rest/v3/opinions/2338816/

705 A.2d 887 (1997) COMMONWEALTH of Pennsylvania, Appellee, v. Phillip Gail MARTIN, Jr., Appellant. Superior Court of Pennsylvania. Argued September 11, 1997. Filed December 8, 1997. *889 Daniel W. Davis, Mercer, for appellant. David A. Ristvey, Assistant District Attorney, Mercer, for the Commonwealth, appellee. Before POPOVICH, SAYLOR and OLSZEWSKI, JJ. POPOVICH, Judge: This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Mercer County following appellant's conviction on the charges of possession of a controlled substance and possession of drug paraphernalia. Herein, appellant contends that the lower court erred in failing to suppress illegal narcotics and a marijuana pipe found in his possession after he was seized and searched by police pursuant to an anonymous tip. We reverse. In reviewing the denial of a motion to suppress, our responsibility is to determine whether the record supports the suppression court's factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings. If the suppression court held for the prosecution, we consider only the evidence of the prosecution's witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. When the factual findings of the suppression court are supported by the evidence, the appellate court may reverse *890 if there is an error in the legal conclusions drawn from those factual findings. Commonwealth v. Lopez, 415 Pa.Super. 252, 609 A.2d 177, 178-179 (1992). We find that the suppression court's factual findings are supported by the record and are as follows. On October 4, 1995, at approximately 3:30 p.m., a 911 dispatcher contacted a Sharon police officer and informed him that an unidentified caller had reported that Phillip Martin was selling marijuana and Percocet at the Capital Café. The officer relayed this information to Detective Raymond Greene. Detective Greene, who knew Martin and was aware that he had "a drug problem," immediately proceeded to the Capital Café. He was accompanied by two officers, both of whom were in uniform. Upon arrival, the uniformed officers remained outside the café. Detective Greene, who was not in uniform, entered the café in search of Martin. Inside, the detective observed four or five patrons, none of whom was Martin. The detective then questioned a barmaid and learned that Martin was using the restroom. After Martin exited the restroom, Detective Greene approached him, addressed him as "Phil," asked if he could speak with him and asked him "to step outside." Martin said, "Okay." He then walked out of the café and into an adjacent public parking lot. Once outside, Martin and the detective were joined by the two uniformed officers. Detective Greene then explained the reason for the officers' "visit." Specifically, he informed Martin that the department had received a tip that he was selling narcotics at the Capital Café. Martin responded that he did not use or sell illegal narcotics. The detective then asked Martin if he would mind emptying his pockets. Martin walked over to the police cruiser and placed the contents of his pockets on the cruiser's hood. Detective Greene then approached the cruiser, inspected the contents of Martin's pockets and discovered a pipe containing marijuana residue. Martin was arrested and searched by one of the uniformed officers. The search revealed a baggie of marijuana, part of a marijuana cigarette and a baggie containing Percocet. Martin was then transported to the police station and later charged with possession of a controlled substance and possession of drug paraphernalia. Martin filed a pre-trial motion to suppress, which was denied by the suppression court. Subsequently, he was tried, convicted and sentenced on all charges. This timely appeal followed. Appellant contends that the suppression court improperly denied his motion to suppress since (1) he did not voluntarily exit the café with Detective Greene, (2) he was seized illegally in the parking lot when he was questioned by Detective Greene, (3) he did not voluntarily empty his pockets and (4) the police did not have probable cause to arrest or search him. As we undertake consideration of appellant's initial claim, we are mindful that not every encounter between a citizen and the police is so intrusive as to trigger the protections provided by the Pennsylvania and United States Constitutions.[1]In the Interest of Jermaine, 399 Pa.Super. 503, 582 A.2d 1058 (1990). This Court has differentiated between a `mere encounter' [and] an `investigative detention'. A mere encounter [or request for *891 information] need not be supported by any level of suspicion, but carries no official compulsion to stop or to respond. An investigative detention must be supported by a reasonable suspicion; it subjects a suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest. [I]n order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct could have communicated to a reasonable person that the person was not free to decline the officer's requests or otherwise terminate the encounter. Commonwealth v. Vasquez, 703 A.2d 25, 30-31 (Pa.Super.1997) (citations and quotations omitted). We find that appellant was not seized by Detective Greene when he initially exited the café. Prior to leaving the café, appellant was not questioned extensively by Detective Greene. Rather, the detective merely approached appellant, indicated that he would like to speak with him and asked him if he would "step outside." There is no indication that appellant was told that he was required to leave the café. Rather, the detective simply asked for his cooperation. Florida v. Rodriguez, 469 U.S. 1, 105 S. Ct. 308, 311, 83 L. Ed. 2d 165 (1984) (per curiam)[2] ("The initial contact between the officers and respondent, where they simply asked if he would step aside and talk with them, was clearly [a] consensual encounter."). Moreover, Detective Greene approached and spoke to appellant in a non-threatening manner. There were neither threats nor any show of force. There was no evidence of any attempts at coercion or intimidation by the detective. Accordingly, we find that appellant left the café voluntarily, and, therefore, that he was not "seized." See Sibron v. State of New York, 392 U.S. 40, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968). Next, we must determine whether the questioning of appellant in the parking lot escalated an otherwise permissible police encounter into an investigatory detention requiring reasonable suspicion. When appellant exited the café, he was immediately confronted by two additional officers, both of whom were in uniform. Detective Greene then informed appellant that the police came to the café because they received a tip that he was selling drugs. N.T. 2/2/96 p. 12. As in Commonwealth v. Wright, 448 Pa.Super. 621, 672 A.2d 826, 829 (1996), we find that "the combination of the threatening presence of several officers and the indication that appellant was suspected of criminal activity [requires the conclusion that] a reasonable person would believe that he was not free to leave." A statement by a law enforcement official that a person is suspected of illegal activity is persuasive evidence that the Fourth Amendment and Article I, Section 8 of the Pennsylvania Constitution have been implicated. Florida v. Royer, 460 U.S. 491, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983) (White, J., plurality);[3]Wright, supra. We believe that appellant could conclude reasonably that the police suspected him of selling illegal narcotics based on the detective's recitation of the anonymous tip and that he could conclude reasonably that he was not free to leave. Accordingly, we find that appellant was seized by the police when he was questioned in the parking lot. See Commonwealth v. Lewis, 535 Pa. 501, 636 A.2d 619 (1994) (holding that appellant was seized where he was confronted by four officers who indicated that they were "working narcotics" and were part of a drug interdiction program); Jermaine, supra (indicating that the threatening presence of several officers and unsupported accusations of criminal activity constitute a "seizure"). Having found that appellant was seized when he was detained and questioned by Detective Greene, we must next determine whether "there were specific and articulable facts which, taken together with rational inferences from those facts, reasonably warranted *892 that intrusion." Wright, 672 A.2d at 829-830 (citation and quotation omitted). See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Specifically, we must determine whether the anonymous tip provided police with reasonable suspicion to make the investigatory stop. "When, as here, the underlying source of the police department's information is an anonymous telephone call, the courts have recognized that the tip should be treated with particular suspicion." Commonwealth v. Jackson, 548 Pa. 484, 698 A.2d 571, 574 (1997). In analyzing an anonymous tip, we must determine whether under the "totality of the circumstances" the informant's tip established the necessary reasonable suspicion that criminal activity was afoot. Alabama v. White, 496 U.S. 325, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990). Critical factors to be considered are the informant's veracity, reliability and basis of knowledge. Id. Here, the tip provided virtually nothing from which one might conclude that the caller was either honest or his information reliable. The caller provided absolutely no indication of the basis for his information regarding appellant's criminal activities. "Simply put, a tip such as this one, standing alone, would not warrant a man of reasonable caution in the belief that [a stop] was appropriate." White, 496 U.S. at 329, 110 S. Ct. at 2416 (quotation omitted). As the Pennsylvania Supreme Court has stated, "the anonymous tip may have been a mere prank call. Equally, it may have been based on no more than the caller's unparticularized hunch." Jackson, 698 A.2d at 574. However, this does not mean that an officer may never conduct an investigatory stop on the basis of an anonymous tip. A stop may be proper where the tip is sufficiently corroborated by independent police work giving rise to a reasonable belief that the tip was correct. Rather recently, in Jackson, supra, the Pennsylvania Supreme Court examined an anonymous call where the only information provided was the location of the suspect, his gender and the color of his jacket. The Court held that: If the police respond to an anonymous call that a particular person at a specified location is engaged in criminal activity, and upon arriving at the location see a person matching the description but nothing more, they have no certain knowledge except that the caller accurately described someone at a particular location. [T]he fact that a suspect resembles the anonymous caller's description does not corroborate allegations of criminal conduct, for anyone can describe a person who is standing in a particular location at the time of the anonymous call. Something more is needed to corroborate the caller's allegation of criminal conduct. Jackson, 698 A.2d at 574 (quoting Commonwealth v. Hawkins, 547 Pa. 652, 692 A.2d 1068, 1070 (1997) (Flaherty, J., plurality)). The tip in this case was similar to the tip in Jackson, except that the name of the suspect rather than his description was provided to the police. While the fact that the caller knew appellant's name indicates a greater degree of familiarity than if he only described appellant's appearance, we find that it is not sufficient detail, even when corroborated, to satisfy the reasonable-suspicion standard. Knowing a person's name is not the sort of fact restricted to "those in the defendant's inner circle of friends." Commonwealth v. Wilson, 424 Pa.Super. 110, 622 A.2d 293, 296 (1993). It is information which can easily be obtained and is known by general acquaintances of the accused. See Wilson, supra. Moreover, as in Jackson, the caller did not predict any future behavior by appellant. Because of the general nature of the tip, the only detail the police were able to corroborate was the fact that appellant was at a particular location.[4] The caller's allegation, *893 without more, did not constitute reasonable grounds for the police to suspect that appellant was engaged in criminal activity.[5] Remaining is the question of whether the evidence seized from appellant may, nevertheless, be introduced into evidence against him on the grounds that he voluntarily emptied his pockets and was searched incident to a lawful arrest. In Commonwealth v. Prosek, 700 A.2d 1305 (Pa.Super.1997), we held that when the causative factor in the relinquishment of evidence is an unconstitutional search and seizure, the contraband must be suppressed. See Jackson, supra. Thus, while we accept as true the suppression court's finding that appellant relinquished evidence when he emptied his pockets, we find that the evidence should have been suppressed as the fruit of an illegal search. The same is true of the evidence seized after appellant was arrested.[6] Reversed and remanded for proceedings consistent with this decision. Jurisdiction relinquished. OLSZEWSKI, J., files a dissenting opinion. OLSZEWSKI, Judge, dissenting: While the expression of the majority view provides a persuasive analysis and sound rationale, I am obliged to differ and respectfully dissent. I feel that the detective had reasonable suspicion to make the investigatory stop. Certainly, in cases of anonymous tips, the court must analyze the "totality of the circumstances" in determining whether there was reasonable suspicion that criminal activity was afoot. Alabama v. White, 496 U.S. 325, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990). The majority relies on the case of Commonwealth v. Jackson, 548 Pa. 484, 698 A.2d 571 (Pa.1997), where our Supreme Court held that there was no reasonable suspicion when the only corroboration of the anonymous tip was that the described person was at the particular location. The majority analogizes the instant case to Jackson by indicating that "the only detail the police were able to corroborate was the fact that appellant was at a particular location" in the instant case. To the contrary, in the instant case there is more significant corroboration that, given the totality of the circumstances, gives rise to reasonable suspicion that criminal activity is afoot. The anonymous tip gave the name of the defendant, his location, and that he was selling marijuana and Percocet. Defendant was indeed found at the described location. Further, the suppression court found that the detective knew the defendant and had knowledge that the defendant was taking prescription drugs for a motorcycle accident. The fact that defendant was known to be taking medication for an accident along with the anonymous tip that defendant was selling Percocet, a prescription drug often given for pain relief, gave significant credibility to the anonymous tip. The naming of the particular prescription drug that was being sold, a drug that coincided with the detective's knowledge of the defendant's medical condition, is beyond mere chance and indicates the *894 degree of familiarity needed to satisfy the reasonable suspicion standard. Because there was reasonable suspicion to permit the investigatory stop in the parking lot, evidence gained when defendant voluntarily emptied his pockets and recovered subject to the search following a lawful arrest was properly admissible. NOTES [1] In the lower court, appellant argued that the search and seizure at issue violated the United States and the Pennsylvania Constitutions. However, "appellant has failed to indicate [on appeal] whether his seizure was in violation of the Fourth Amendment to the United States Constitution, Article I, Section 8 of the Pennsylvania Constitution, or both Constitutions. For the sake of judicial economy, we will analyze this case under both Constitutions." Commonwealth v. Wright, 448 Pa.Super. 621, 672 A.2d 826, 828 n. 4 (1996). We note that the protections of individual privacy against unreasonable governmental searches and seizures under the Pennsylvania Constitution are more expansive than those afforded under the United States Constitution. Commonwealth v. Parker, 422 Pa.Super. 393, 619 A.2d 735 (1993). The United States Supreme Court's interpretations of Fourth Amendment guarantees do not bind this Court in reaching conclusions regarding the protections afforded under Article I, Section 8 of the Pennsylvania Constitution. Id. However, as will be discussed infra, we conclude that under both the state and federal constitutional provisions, the search and seizure in this case were unconstitutional. [2] The rules enunciated in Rodriguez were adopted by a majority of the United States Supreme Court in Florida v. Bostick, 501 U.S. 429, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991). [3] The rules enunciated in Royer were adopted by a majority of the United States Supreme Court in Bostick, supra. [4] In his dissent, our esteemed colleague argues that there was a greater degree of corroboration of the tip in this case than in Jackson, supra, and, therefore, that Detective Greene had reasonable suspicion to stop appellant. Specifically, it is argued that since appellant was found at the described location possessing the described drugs, the tip was corroborated. This argument was rejected in Commonwealth v. Hawkins, 547 Pa. 652, 692 A.2d 1068 (1997) (Flaherty, J., plurality), whose analysis was adopted in Jackson, supra. The dissent also argues that Detective Greene had prior knowledge regarding appellant which gave credibility to the tip. Specifically, the dissent indicates that the detective knew that appellant used drugs in the past and that he was prescribed medication as a result of a motorcycle accident. However, we find that the Commonwealth failed to establish the reliability of this information. During the suppression hearing, Detective Greene stated that appellant did not provide him with this information. Rather, he testified that he discovered this information from "people on the street." N.T. 2/2/96 p. 29. Detective Greene also specifically testified that he did not know the name or type of medication prescribed to appellant. N.T. 2/2/96 p. 29. In any event, even if we were to find the detective's prior knowledge to be reliable, it would be insufficient justification for stopping appellant, even in connection with the otherwise uncorroborated tip. [5] We note that "[u]pon receiving unverified information that a certain person is engaged in illegal activity, the police may always observe the suspect and conduct their own investigation. If police surveillance produces a reasonable suspicion of criminal conduct, the suspect may, of course, be briefly stopped and questioned." Hawkins, 692 A.2d at 1071. Here, there was no police surveillance and no contention that appellant was acting suspiciously when the police arrived at the café. See Commonwealth v. Anderson, 481 Pa. 292, 392 A.2d 1298 (1978). [6] In light of our discussion supra, we need not discuss appellant's remaining contentions.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2338830/

705 A.2d 497 (1998) John and Jane PEET, Jr., Petitioners, v. COMMONWEALTH of Pennsylvania, Respondent. Commonwealth Court of Pennsylvania. Argued October 7, 1997. Decided January 2, 1998. *498 Richard J. Gromen, Jr., Elizabethtown, for petitioners. Ronald H. Skubecz, Senior Deputy Atty. Gen., Harrisburg, for respondent. Before DOYLE and PELLEGRINI, JJ., and RODGERS, Senior Judge. DOYLE, Judge. John and Jane Peet appeal an order of the Board of Finance and Revenue which affirmed the decision of the Board of Appeals, which had denied the Peets' petition for a refund based on their 1992 Pennsylvania personal income tax return. The relevant facts of the case have been stipulated to by the parties pursuant to Pa. R.A.P. 1571(f). In 1992, the Peets filed both Pennsylvania and Delaware personal income tax returns. On the Delaware return, the Peets reported to Delaware an adjusted gross income[1] of $299,739 and a taxable income of $254,781. Unlike Pennsylvania's flat-rate income tax, Delaware's income tax is on a graduated scale and progressive. To calculate an individual's tax liability, the taxpayer's total taxable income from all sources is first interpolated into a tax rate table to arrive at a tax rate. This rate is then prorated to determine the Delaware tax liability. The proration percentage is derived by dividing the "Modified Delaware Source Income"[2] (Delaware Income), by the Delaware adjusted gross income[3] (total income). In the present case, the Peets' proration percentage based on their total taxable income was 28.00%. This figure was then multiplied by their total tax liability at that rate, $18,924, to arrive at a net total tax due to the state of Delaware of $5,299.[4] The Peets likewise filed a Pennsylvania personal income tax return entering income *499 from the following sources in the following amounts: 1) $197,426 entered as compensation; 2) $18,314 entered as interest; 3) $28,024 entered as dividends; and 4) $59,533 entered as gains. The Peets claimed a credit of $9,600 for Pennsylvania tax withheld, as well as a $5,299 credit for income tax paid to the state of Delaware. The Peets' total Pennsylvania tax liability, based on a tax rate of 2.95%, was $8,947. As a result of the credits for the taxes withheld and the out-of-state credit for the Delaware tax paid, the Peets' 1992 Pennsylvania income tax return indicated an overpayment of $5,952, which the Peets requested as a refund. Upon reviewing the Peets' return, the Department of Revenue determined that the Peets were only entitled to a credit of $2,514 as a result of their Delaware income tax, and not a credit of $5,299, the amount of the income tax they actually paid to Delaware. The Department of Revenue arrived at this figure through the application of Section 314 of the Pennsylvania Tax Reform Code of 1971 (Tax Code).[5] Section 314(b) provides as follows: The credit provided under this section shall not exceed the proportion of the tax otherwise due under this article that the amount of the taxpayer's income subject to tax by other jurisdiction bears to his entire income. 72 P.S. § 7314(b) (emphasis added). Applying this section, the Department calculated the Peets' credit by dividing their total taxable Delaware income ($85,204) by their entire taxable income ($303,297). This figure yielded the proportion of the Peets' Delaware income, approximately 28%, in relation to their total income. This figure was then multiplied by the Peets' Pennsylvania tax liability ($8,947) to arrive at a rounded figure of $2,514, the amount the Department indicated as the Peets' credit for taxes paid to Delaware. The Peets appealed the Department's decision to the Department of Revenue Board of Appeals, which affirmed the decision of the Department.[6] The Peets appealed that decision to the Board of Finance and Revenue, which also affirmed the decision. This appeal followed. On appeal,[7] the Peets argue that the Commonwealth erred in interpreting the meaning of "income subject to tax," as that term is used in Section 314 of the Revenue Code. Specifically, the Peets argue that, because their entire gross income was used in the calculation of their Delaware tax liability, their entire income was "income subject to tax" by Delaware, and, therefore, they should be entitled to a credit for the entire tax paid to Delaware rather than a mere percentage of that tax. In response, the Commonwealth asserts that "income subject to tax" for purposes of Section 314(b) of the Revenue Code is limited to income that is both derived from another jurisdiction and is also taxed by that jurisdiction. These arguments present us with an issue of first impression, i.e., whether income is "subject to tax" in another jurisdiction when it is used only to calculate the tax rate in that jurisdiction. Thus, we must construe not only the Pennsylvania tax credit provision but also the Delaware taxation system, as well as the interplay between the two. This issue arises, of course, because Delaware uses a taxpayer's total income to establish a tax rate first, which rate is progressive, *500 and then applies that tax rate to Delaware income; whereas Pennsylvania uses a flat tax rate of 2.95% across the board on all income and does not need to establish a rate based upon a progressively graduated scale.[8] The power of a state to tax a nonresident's income that is derived within the state is well established. See Travis v. Yale & Towne Manufacturing Co., 252 U.S. 60, 40 S. Ct. 228, 64 L. Ed. 460 (1920). However, this power is not without limitation. In order for a state to tax income derived within its borders constitutionally, there must be a connection between the jurisdiction and the income, and the tax must be applied equally to residents and nonresidents alike. E.g., Miller Brothers Co. v. Maryland, 347 U.S. 340, 74 S. Ct. 535, 98 L. Ed. 744 (1954). Absent these conditions, the taxation would violate constitutional principles of equal protection and due process, as well as the privileges and immunities of citizenship contained in Article IV, Section 2 of the United States Constitution.[9]Id. States, such as Delaware, that utilize a graduated tax scale to compute tax liability consider an individual's entire gross income, as that term is used in the federal taxation system, to establish a rate of taxation. See Kansas Stat. Ann. § 79-32, 110(b); Me.Rev. Stat. Ann. tit. 36, § 5111; New York Tax Law § 631; Vt. Stat. Ann. tit. 32, § 5811(1). The graduated system apportions tax liability based on the taxpayer's fiscal ability to pay. The applicable tax rate is then applied only to the income derived from that state to arrive at the tax liability. Thus, as in the present case, as a result of Delaware's graduated tax rate, a taxpayer with taxable income of $85,000 from Delaware and $85,000 from another state, which is a total of $170,000 for tax purposes, will pay more tax to Delaware on the Delaware income than an individual who has only $85,000 in total income, albeit all earned in Delaware. Although the process of considering otherwise non-taxable income in arriving at a tax rate is not taxpayer-friendly, as early as 1919, the United States Supreme Court concluded that this practice was constitutional. See Maxwell v. Bugbee, 250 U.S. 525, 40 S. Ct. 2, 63 L. Ed. 1124 (1919); see also Wheeler v. State, 127 Vt. 361, 249 A.2d 887 (1969). The Maxwell Court noted that "[w]hen the State levies taxes within its authority, property not in itself taxable by the State may be used as a measure of the tax imposed." Id. at 539, 40 S. Ct. at 6 (emphasis added). Although the issue in Maxwell involved an estate tax, the principles of taxation in that case have been applied to personal income taxation as well. Stevens v. State Tax Assessor, 571 A.2d 1195 (Me.), cert. denied, 498 *501 U.S. 819, 111 S. Ct. 65, 112 L. Ed. 2d 40 (1990); see also Wheeler. In response to the prospect of their citizens being taxed twice on the same income, many states, including Pennsylvania, created credits for income tax paid to another state. Section 314 of the Pennsylvania Tax Code, 72 P.S. § 7314, provides a tax credit for income taxes paid by Pennsylvania residents to another state based on income earned in that other jurisdiction. The goal of this credit is to protect Pennsylvania citizens from double taxation of their income that is earned in the other states. This goal is achieved by, in effect, "releasing" the out-of-state income through the credit. However, Subsection (b) of Section 314 limits the amount of the credit to the percentage that a taxpayer's out-of-state income bears to his or her total income. The Department's regulations, specifically 61 Pa.Code § 111.4, furnish an explanation of the out-of-state credit as well as an example of the limitation. This section provides as follows: (a) Credit allowed. The credit allowed shall be limited to that portion of tax due under this chapter determined by applying to the total of such tax a fraction, the numerator of which shall be the amount of the taxable income of the taxpayer subject to tax in the other jurisdiction and the denominator of which is the entire taxable income of the taxpayers. (b) Example of limitation on credit. A resident taxpayer earns $10,000 of wages in New York State on or after July 1, 1981. New York State permits him deductions after that date totaling $2,000, and he pays after that date a total tax of $500. In addition, he has intangible capital gains of $5,000. His total Commonwealth taxable income is $15,000 ($10,000 in wages and $5,000 in capital gains) and his total Commonwealth income tax liability is $330 (2.2% of $15,000). The credit of the taxpayer for New York income is limited to $220 ($10,000/$15,000 × 330). 61 Pa.Code § 111.4 (emphasis added). The limitation of the credit ensures that the Commonwealth receives its proper amount of taxes and does not have its revenue reduced or extinguished by a tax credit from another jurisdiction. Thus, the credit releases that income not attributable to Pennsylvania, but still permits taxation of Pennsylvania income. In arguing for a reversal of the Department's determination in the present case, the Peets posit that their entire income is taxed by the State of Delaware because the Peets' entire income, from both inside and outside of Delaware, is used to compute their Delaware tax rate. Therefore, the Peets argue, they are entitled to a credit for the entire amount of taxes paid to Delaware. We must disagree. We believe that the Delaware system, like those systems in other graduated income tax states, uses out-of-state income merely as a measure of the tax rate, rather than actually taxing that income. The Peets' Pennsylvania income, therefore, was not subject to tax by Delaware. As noted above, a state cannot constitutionally tax income that is not somehow related to that state. Miller Brothers Co. Thus, to view the Delaware tax system as the Peets suggest would render its application unconstitutional because it would permit Delaware to tax income that is not derived from or connected to Delaware, thus violating nonresident taxpayers' constitutional rights. Section 1922 of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1922, requires us to presume that the General Assembly, in enacting a statute, did not desire the statute to violate either the federal or state constitution. It logically follows, that in construing a statute of another jurisdiction, we are guided by the same presumption. Thus, we must give due regard to the presumptive constitutionality of Delaware's graduated tax system. Therefore, we must construe the Delaware tax code provisions at issue so as not to violate federal or state constitutional principles. Only by construing Delaware's taxation system as taxing only that income attributable to Delaware can we achieve this goal. Moreover, further support for this construction is drawn from jurisdictions that, like Delaware, tax out-of-state residents by using their entire gross income to calculate the tax rate, thus causing a higher tax rate to be applied to the income within that state. Cases from these jurisdictions conclude that, although out-of-state income is used to calculate *502 the appropriate tax rate, the out-of-state income itself is not subject to tax. Stevens; Brady v. State of New York, 80 N.Y.2d 596, 592 N.Y.S.2d 955, 607 N.E.2d 1060 (1992), cert. denied, 509 U.S. 905, 113 S. Ct. 2998, 125 L. Ed. 2d 692 (1993); Wheeler. The underlying rationale in these cases is the notion that consideration of out-of-state income to measure the appropriate tax rate is not tantamount to taxation of that income. Rather, the income derived from the taxing state is simply taxed at a higher rate pursuant to the graduated tax system. See United States v. Kansas, 810 F.2d 935 (10th Cir.1987). By construing Section 314 to include a credit only for income that is actually taxed by another jurisdiction, rather than merely "considered" by the state in arriving at a tax rate, we bring this Commonwealth in line with other states that have confronted this issue. E.g., Comptroller of the Treasury v. Hickey, 114 Md.App. 388, 689 A.2d 1316 (1997); Chin v. Director, Division of Taxation, 14 N.J.Tax 304 (N.J. Tax Ct.1994), aff'd sub nom., Carroll v. Director, Division of Taxation, 15 N.J.Tax 177 (N.J.Super. Ct.App.Div.1995). In addition, we note that, if we were to adopt the Peets' construction of Section 314, the purpose behind the credit would be eviscerated. The credit is partially designed to ensure that the Commonwealth receives the proper amount of tax from each taxpayer. The Peets' construction, however, would permit a taxpayer to deduct 100% of their tax paid to another jurisdiction, which would reduce, if not completely extinguish, the tax liability otherwise due to their state of residency. For example, under the Peets' formula, if a taxpayer has $300,000 in total income, $100,000 of which is derived from Delaware and $200,000 of which is derived from Pennsylvania, the taxpayer would have the following tax liability: Delaware Income Tax Pennsylvania Income Tax 28% of $100,000 = $28,000 2.95% of $200,000 = $5,900 less Delaware credit - $28,000 _______ Net Pennsylvania tax $0 Thus, Delaware's graduated tax rate of 28% would wipe out entirely any tax due to Pennsylvania, even on Pennsylvania income. Additionally, this interpretation would enrich the taxpayer by allowing him or her to avoid paying taxes otherwise due to the Commonwealth based on Pennsylvania income that is used in the calculation of the tax rate, but not taxed by another jurisdiction. We decline to reach such an unreasonable and potentially harmful result. Applying the construction that we announce today, we conclude that the Peets are entitled to a credit against the income tax paid to Delaware based on the amount of Delaware income that is attributable to and actually taxed by Delaware, rather than the amount used to calculate the tax rate. Thus, we hold that the Peets' out-of-state tax credit pursuant to Section 314 is $2,514, as the Commonwealth correctly concluded. Finally, it appears that the real substance of the Peets' complaint is not so much rooted in the Commonwealth's administration of the out-of-state tax credit as it is with Delaware's graduated system of taxation. Clearly, the Peets' Delaware income is taxed at a higher rate than it would be if they had no other income from another state. However, as we conclude that Delaware is only taxing that portion of the Peets' income attributable to that state, the better forum for the Peets' grievance is the Delaware Legislature rather than this Court. Accordingly, judgment is entered in favor of the Commonwealth. ORDER NOW, January 2, 1998, judgment is entered in favor of the Commonwealth. This order will become final, unless exceptions are filed within 30 days of the entry of this order. NOTES [1] Delaware Code Title 30, § 1101 provides as follows: Any term used in this chapter shall have the same meaning as when used in a comparable context in the laws of the United States referring to federal income taxes, unless a different meaning is clearly required. Id. Thus, Delaware "adjusted gross income," is that which is defined by 26 U.S.C. § 62(a), and means income from whatever source derived minus permitted deductions. [2] Pursuant to Delaware Code Annotated, Title 30, Section 1122, "[t]he modified Delaware source income of a nonresident individual means that part of such individual's federal adjusted gross income and modifications provided for under § 1106 of this title derived from sources within this State determined under § 1124 of this title." Del.Code Ann. tit. 30, § 1122 (emphasis added). [3] To simplify the explanation of Delaware's income tax formula, the formula first requires the taxpayers to compute their adjusted gross income and taxable income and, based on that income, then establishes a tax rate. If a taxpayer has out-of-state income, that income is used to establish the Delaware income tax rate and that rate is progressive. That progressive tax rate is the rate which Delaware applies to Delaware income. [4] The Peets claimed a $7,200 credit for taxes withheld by Delaware, which entitled them to a refund in the amount of $1,901, which Delaware sent to the Peets. [5] Act of March 4, 1971, P.L. 6, as amended, 72 P.S. §§ 7101-10004. [6] As part of their appeal, the Peets sought a refund in the amount of $5,952. [7] Although our normal standard of review of governmental agency determinations does not permit this Court to substitute its discretion for that of the agency absent a showing of bad faith, capricious action or an abuse of discretion, that standard does not apply to our review of decisions of the Board of Finance and Revenue. Norris v. Commonwealth, 155 Pa.Cmwlth. 423, 625 A.2d 179 (1993). When reviewing a decision of the Board of Finance and Revenue, this Court has the broadest discretion because, although the case is brought under our appellate jurisdiction, the Court essentially performs the functions of a trial court. Consolidated Rail Corporation v. Commonwealth, 679 A.2d 303 (Pa.Cmwlth.1996), aff'd, 547 Pa. 453, 691 A.2d 456 (1997). Additionally, although the stipulations entered into in the present case are binding and conclusive as to the facts, this Court may draw its own legal conclusions from those facts. Brown v. Commonwealth, 670 A.2d 1222 (Pa.Cmwlth.1996). [8] Two examples will demonstrate how the problem arises (assume in both hypotheticals that the taxpayer has income from Pennsylvania sources of $10,000 and income from sources in Delaware of $5,000, for a total income of $15,000). First, if the tax rate in each state was the same, say e.g. 2.95%, the computation and apportionment of the taxes would be as follows: Pennsylvania Tax: $15,000 @ 2.95% = $442.50 less credit for taxes paid to Delaware ($5,000 @ 2.95%) - $147.50 _______ Net Pennsylvania tax $295.00 _______ Under this scenario where the state tax rates are the same, Pennsylvania would receive $295 in taxes ($10,000 @ 2.95%) and Delaware would collect $147.50 in taxes ($5,000 @ 2.95%). Second, assume however, that Delaware had a progressive tax rate with a rate that was established by applying a taxpayer's gross income to a predetermined tax rate table, which resulted in a tax rate greater than 2.95%. The computation and tax apportionment, as argued by the Peets, would be as follows: Pennsylvania Tax: $15,000 @ 2.95% = $442.50 less credit for taxes paid to Delaware ($5,000 @ 5%) - $250.00 _______ Net Pennsylvania tax $192.50 _______ It should be noted that if the foreign state's tax rate was a great deal more than the tax rate of a resident taxpayer's home state, the resident taxpayer might not have any tax liability to his or her resident state even though substantial income was earned in that state. Thus, in our hypothetical, if the Delaware tax rate was ten percent rather than five percent, the tax due to Delaware would be $500. This $500 credit against the taxpayer's Pennsylvania income tax would result in no tax being due at all to Pennsylvania, even though $10,000 of income was earned here. (Pennsylvania tax, $442.50, less credit for tax paid to Delaware in the amount of $500 = no tax due.) [9] Article IV, Section 2 of the United States Constitution provides as follows: The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. U.S. Const. art. IV, § 2.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2339426/

(2008) Pamela F. REYNOLDS, Plaintiff, v. REHABCARE GROUP EAST INC., Defendant. No. 4:07-cv-00388. United States District Court, S.D. Iowa, Central Division. December 12, 2008. ORDER ROBERT W. PRATT, Chief Judge. Pamela Reynolds ("Plaintiff") filed the present action against RehabCare Group East Inc. ("Defendant" or "RehabCare") on August 29, 2007 (Clerk's No. 1), alleging that Defendant violated the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"), 38 U.S.C. §§ 4301-33. Specifically, Plaintiff claims that Defendant violated § 4311 of USERRA by discriminating against her because of her military service and that Defendant violated §§ 4312-13 by refusing to offer her reemployment after her return from active military service. Defendant filed an Answer to Plaintiffs Complaint on October 1, 2007. Clerk's No. 11. On October 4, 2007, Plaintiff filed a Motion for Preliminary Injunction. Clerk's No. 13. Following a hearing, the Court denied Plaintiffs request for a preliminary injunction in an Order dated January 29, 2008. See Reynolds v. Rehabcare Group East Inc., 531 F. Supp. 2d 1050 (S.D.Iowa 2008). On March 26, 2008, Defendant filed the present Motion for Summary Judgment. Clerk's No. 33. After receiving an extension of time for the purpose of conducting additional discovery, Plaintiff filed a Resistance to Defendant's Motion for Summary Judgment on August 15, 2008. Clerk's Nos. 49-50. Defendant filed a Reply to Plaintiffs resistance on September 3, 2008. Clerk's No. 57. Neither party has requested a hearing and the matter is, therefore, fully submitted. I. FACTUAL BACKGROUND Plaintiff is a licensed physical therapist in the State of Iowa. Def.'s Material Facts ¶ 21. In 2002, Plaintiff began providing physical therapy services at Green Hills Retirement Community ("Green Hills") in Ames, Iowa. Id. ¶ 22. Green Hills has contracted with LifeCare Services, Inc. ("LifeCare") to provide management services to Green Hills' residents. Id. ¶ 2. Rod Copple ("Copple"), Green Hills' Executive Director, is an employee of LifeCare. Id. ¶ 3. Various independent entities provide vendor services at Green Hills. Id. ¶ 4. One such vendor service provided to Green Hills' residents is rehabilitative therapy. Id. At no time has Plaintiff ever been employed by Green Hills. Id. ¶ 5. Rather, Plaintiff provided physical therapy services at Green Hills beginning in 2002 pursuant to Green Hills' contract for rehabilitation services with Plaintiffs employer, MJ Care. Id. ¶¶ 22-23. MJ Care's contract with Green Hills ended in early 2004. Id. ¶ 24. Green Hills then entered into a contract with Progressive Rehab Associates ("Progressive"), a company that provides rehabilitation services in various communities throughout Iowa. Id. ¶¶ 6, 25. Progressive provided rehabilitation services at Green Hills from May 1, 2005 to June 30, 2007. Id. ¶ 7. Plaintiff became an employee of Progressive in May 2004, id. ¶ 26, and provided rehabilitation services at Green Hills for Progressive until she was deployed to active military duty on March 23, 2006.[1]Id. ¶ 28. Plaintiff served on active duty at Fort Hood, Texas from March 23, 2006 to July 8, 2007. Id. ¶ 30. On May 3, 2007, while Plaintiff was stationed at Fort Hood, Progressive gave Green Hills sixty days notice that it was terminating the contract for rehabilitation services, apparently due to Green Hills' decision to become a Skilled Nursing Facility ("SNF").[2]Id. ¶¶ 31-33. Upon learning of Progressive's decision in this regard, Green Hills began the process of locating a new vendor for rehabilitation services.[3] On July 26, 2007, Green Hills ultimately contracted with Deerfield Retirement Community ("Deerfield"),[4] which in turn, subcontracted with RehabCare, a company that provides rehabilitation services for health care facilities nationwide, for the provision of rehabilitation services at Green Hills. Id. ¶¶ 11-13, 37-38. RehabCare was aware of Plaintiff's military service commitments prior to signing the contract with Deerfield to provide services at Green Hills. Pl.'s Material Facts ¶ 77. Plaintiff has never been employed by RehabCare. Def.'s Material Facts ¶ 14. At the time of her deployment, Plaintiff was receiving $51.28 per hour as an employee of Progressive. She worked 30 hours per week, had three weeks of annual vacation, and was allowed to participate in Progressive's 401K program. Hr'g Tr. at 39. On June 5, 2007, during her "terminal leave" from the military,[5] Plaintiff contacted Progressive and Copple and stated that she was "reapplying for [her] position as physical therapist at Green Hills," pursuant to USERRA. Pl.'s App. at 221. In a post script to Copple specifically, Plaintiff stated her understanding that "Progressive is ending its relationship with Green Hills" and asserted that any successor contractor would be "a `successor in interest' and covered by USERRA." Id. A copy of Plaintiff's letter was forwarded to Rehab-Care.[6] Plaintiff had ongoing discussions with Melissa Violette ("Violette"), the regional manager of operations for RehabCare, beginning in June 2007. See generally Hr'g Tr. (Pl.'s Testimony at 34-59). Plaintiff maintained during these conversations that RehabCare was obligated to "reemploy" her under USERRA. Id. Violette told Plaintiff that she would provide the information to her supervisors, as RehabCare had a policy of not making employment offers of any sort until such time as it actually had a contract with a specific retirement home in place. Id. at 43. After their conversations, Violette sent Plaintiff an application for employment with Rehab-Care. Plaintiff filled out the application on July 11, 2007, making substantial changes to the form of the application. See Def.'s Ex. E. Specifically, Plaintiff crossed out the word "employment" in the heading, "Application for Employment," and hand-wrote "ReEmployment/USERRA" in its place. Plaintiff further wrote: "I am an employee of Progressive Rehab Associates returning from 16 months of Active Duty with the United States Army. I am seeking reemployment as physical therapist at Green Hills Retirement Community." Id. Plaintiff also crossed out the "Applicant Statement," certifying that the information in the application was true and acknowledging that employment would be at-will, and wrote "Not applicable-See USERRA." Id. Violette asked Plaintiff to meet her at Green Hills on July 27, 2007, the first day that RehabCare was to be present at Green Hills. Hr'g Tr. at 46. Plaintiff met with Violette for approximately an hour or an hour and one-half, during which time they reviewed patient records and Plaintiff gave Violette a tour of the building. Id. at 46-47. Plaintiff also introduced Violette and another RehabCare employee to various Green Hills staff. Id. at 49. Following the tour, Plaintiff and Violette spoke privately. Id. at 50-51. Violette told Plaintiff that RehabCare really wanted to bring Plaintiff on as an employee, but that RehabCare did not think that USERRA applied to it because RehabCare did not purchase any of Progressive's assets. Id. at 51. Plaintiff responded that she believed that USERRA did apply and that her lawyer would contact RehabCare's lawyer. Id. Violette informed Plaintiff during this meeting that RehabCare had offers of employment for Plaintiff to employ her as a physical therapist at Green Hills, but Plaintiff refused to hear the offers, maintaining that "if they are not going to honor the USERRA law and reinstate me into my job that I had prior to leaving, I didn't want to hear the offer." Id. at 83. Since that time, Plaintiff has not had any further personal communication with RehabCare, except in the context of this litigation, and she has not worked for RehabCare in any capacity. II. STANDARD OF REVIEW The plain language of Federal Rule of Civil Procedure 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). "[S]ummary judgment is an extreme remedy, and one which is not to be granted unless the movant has established his right to a judgment with such clarity as to leave no room for controversy and that the other party is not entitled to recover under any discernible circumstances." Robert Johnson Grain Co. v. Chem. Interchange Co., 541 F.2d 207, 209 (8th Cir.1976) (citing Windsor v. Bethesda Gen. Hosp., 523 F.2d 891, 893 n. 5 (8th Cir.1975)). The purpose of the rule is "`not to cut litigants off from their right of trial by jury if they really have issues to try,'" Poller v. Columbia Broad. Sys., Inc., 368 U.S. 464, 467, 82 S. Ct. 486, 7 L. Ed. 2d 458 (1962) (quoting Sartor v. Ark. Natural Gas Corp., 321 U.S. 620, 627, 64 S. Ct. 724, 88 L. Ed. 967 (1944)), but to avoid "useless, expensive and time-consuming trials where there is actually no genuine, factual issue remaining to be tried." Anderson v. Viking Pump Div., Houdaille Indus., Inc., 545 F.2d 1127, 1129 (8th Cir.1976) (citing Lyons v. Bd. of Educ., 523 F.2d 340, 347 (8th Cir.1975)). The precise standard for granting summary judgment is well-established and oftrepeated: summary judgment is properly granted when the record, viewed in the light most favorable to the nonmoving party and giving that party the benefit of all reasonable inferences, shows that there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir.1994). The court does not weigh the evidence nor make credibility determinations; rather, the court only determines whether there are any disputed issues and, if so, whether those issues are both genuine and material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Wilson v. Myers, 823 F.2d 253, 256 (8th Cir.1987) ("Summary judgment is not designed to weed out dubious claims, but to eliminate those claims with no basis in material fact."). Employment actions are inherently fact based, and the Eighth Circuit has repeatedly cautioned that in employment discrimination cases, summary judgment should "seldom be granted ... unless all the evidence points one way and is susceptible to no reasonable inferences sustaining the position of the nonmoving party." Hindman v. Transkrit Corp., 145 F.3d 986, 990 (8th Cir.1998) (citations omitted); see also Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir.1994) ("[S]ummary judgment should seldom be used in employment-discrimination cases."); Hillebrand v. M-Tron Indus., Inc., 827 F.2d 363, 364 (8th Cir.1987), cert. denied, 488 U.S. 1004, 109 S. Ct. 782, 102 L. Ed. 2d 774 (1989). This is because "inferences are often the basis of the claim ... and `summary judgment should not be granted unless the evidence could not support any reasonable inference' of discrimination." Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1156 (8th Cir.1999) (quoting Lynn v. Deaconess Med. Ctr.—W. Campus, 160 F.3d 484, 486-87 (8th Cir.1998)). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact based on the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any. See Celotex, 477 U.S. at 323, 106 S. Ct. 2548; Anderson, 477 U.S. at 248, 106 S. Ct. 2505. Once the moving party has carried its burden, the nonmoving party must go beyond the pleadings and, by affidavits or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial. See Fed. R.Civ.P. 56(c), (e); Celotex Corp., 477 U.S. at 322-23, 106 S. Ct. 2548; Anderson, 477 U.S. at 257, 106 S. Ct. 2505. "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48, 106 S. Ct. 2505. An issue is "genuine" if the evidence is sufficient to persuade a reasonable jury to return a verdict for the nonmoving party. See id. at 248, 106 S. Ct. 2505. "As to materiality, the substantive law will identify which facts are material.... Factual disputes that are irrelevant or unnecessary will not be counted." Id. III. LAW AND ANALYSIS A. Plaintiffs Right to Reemployment under 38 U.S.C. §§ 4312-13 Amongst other things, Congress enacted USERRA for the express purpose of "minimiz[ing] the disruption to the lives of persons performing service in the uniformed services as well as to their employers, their fellow employees, and their communities, by providing for the prompt reemployment of such persons upon their completion of such service." 38 U.S.C. § 4301(a)(2). In furtherance of this purpose, section 4312 provides that: "[A]ny person whose absence from a position of employment is necessitated by reason of service in the uniformed services shall be entitled to the reemployment rights and benefits and other employment benefits of this chapter" if the person: (1) gave advance notice of their service to their employer; (2) was absent for service in the uniformed services for a period not exceeding five years; and (3) reports to or submits an application for reemployment within 90 days after the completion of uniformed service. Section 4313 provides that a person eligible for reemployment under USERRA "shall be promptly reemployed... in the position of employment in which the person would have been employed if the continuous employment of such person with the employer had not been interrupted by such service, or a position of like seniority, status and pay, the duties of which the person is qualified to perform." 38 U.S.C. § 4313(a)(2)(A). An employer, for purposes of USERRA, is "any person, institution, organization, or other entity that pays salary or wages for work performed or that has control over employment opportunities, including ... any successor in interest to a person, institution, organization, or other entity referred to in this subparagraph." 38 U.S.C. § 4303(4)(A)(iv) (emphasis added). There is no question that Plaintiff met all of the requirements to be eligible for reemployment under USERRA. Rather, as the Court noted in its Order on Plaintiff's Motion for Preliminary Injunction, "the fighting issue in this case is whether Plaintiff has a right to reemployment by RehabCare, given that she was employed by Progressive at the time of her deployment to active military service." Reynolds, 531 F.Supp.2d at 1056 (emphasis added). More specifically, the question is whether RehabCare is a "successor in interest" to Progressive, such that it was obligated to "reemploy" Plaintiff under USERRA. USERRA does not define the term "successor in interest." The applicable Department of Labor regulations, however, provide the following: Is a successor in interest an employer covered by USERRA? USERRA's definition of "employer" includes a successor in interest. In general, an employer is a successor in interest where there is a substantial continuity in operations, facilities, and workforce from the former employer. The determination whether an employer is a successor in interest must be made on a case-bycase basis using a multi-factor test that considers the following: (a) Whether there has been a substantial continuity of business operations from the former to the current employer; (b) Whether the current employer uses the same or similar facilities, machinery, equipment, and methods of production; (c) Whether there has been a substantial continuity of employees; (d) Whether there is a similarity of jobs and working conditions; (e) Whether there is a similarity of supervisors or managers; and, (f) Whether there is a similarity of products or services. 20 C.F.R. § 1002.35. A nearly identical test for successor liability was employed by the Eighth Circuit Court of Appeals in Leib v. Georgia-Pacific Corp., a case arising under a USERRA predecessor, the Vietnam Era Veterans' Readjustment Assistance Act of 1974, 38 U.S.C. §§ 2021 et seq.[7]Leib, 925 F.2d 240, 247 (8th Cir.1991) (adopting a test for successor liability that includes consideration of circumstances such as "whether there is (1) substantial continuity of the same business operations, (2) use of the same plant, (3) continuity of work force, (4) similarity of jobs and working conditions, (5) similarity of supervisory personnel, (6) similarity in machinery, equipment, and production methods, and (7) similarity of products or services.") (citing Smegal v. Gateway Foods of Minneapolis, Inc., 819 F.2d 191, 193 (8th Cir. 1987)). Indeed, the legislative history of USERRA states: "The Committee intends that the multi-factor analysis utilized by the court in Leib v. Georgia-Pacific Corp. is to be the model for successor in interest issues, except that the successor's notice or awareness of a reemployment rights claim at the time of merger or acquisition should not be a factor in this analysis." H.R.Rep. No. 103-65, reprinted in 1994 U.S.C.C.A.N. 2449 at 2454. In its Order on Plaintiff's Motion for Preliminary Injunction, this Court discussed extensively the only two reported cases that have considered questions of successor in interest liability under USERA—Coffman v. Chugach Support Services, Inc., 411 F.3d 1231, 1232 (11th Cir. 2005), and Murphree v. Communications Technologies, Inc., 460 F. Supp. 2d 702, 704 (E.D.La.2006). See Reynolds, 531 F.Supp.2d at 1058-60. The Court specifically declined to employ Coffman's "ownership and control" test,[8] favoring instead the "business continuity test" employed in Leib, adopted in Murphree, and requested by Plaintiff. Id. at 1060. Accordingly, bearing in mind the different standard of review applicable to the present Motion for Summary Judgment, the Court turns now, as it previously did with respect to Plaintiffs Motion for Preliminary Injunction, to an evaluation of each of the six Department of Regulation factors to determine whether RehabCare is a successor in interest to Progressive. 1. Whether there has been a substantial continuity of business operations from the former to the current employer. Defendant urges that the undisputed evidence shows that there has been no substantial continuity of Progressive's business by RehabCare. Specifically, Defendant points out numerous facts that demonstrate a lack of substantial continuity of business operations between Progressive and RehabCare. Plaintiff has never been employed by either Rehab-Care or Green Hills. Def.'s Material Facts ¶¶ 5, 14. Progressive not only has no relationship with RehabCare, but also has no existing relationship with Green Hills, never owned any portion of Green Hills, and never purchased any equipment for Green Hills—the only relationship between Progressive and Green Hills was a contractual one that ended when Progressive terminated it. Id. ¶¶ 19;[9] Hr'g Tr. at 62-63.[10] RehabCare did not "assume or take over" Progressive's contract with Green Hills, but rather entered into a separate contractual relationship with Deerfield, which had entered into a contractual arrangement with Green Hills that was separate and distinct from the contract between Progressive and Green Hills. Def.'s Material Facts ¶¶ 8, 11, 13. Progressive removed all of its patient files from Green Hills by August 19, 2007, and also removed equipment and supplies. Id. ¶ 42; Pl.'s Response ¶ 42. The services provided at Green Hills by RehabCare, other than to the extent their performance is governed by state law, was provided according to RehabCare's standards and policies, not Progressive's standards and policies. Def.'s Material Facts ¶ 46; Pl.'s Response ¶ 46.[11] RehabCare purchased absolutely nothing from Progressive, and it conducted independent assessments of all patients, started its own patient files, and utilized its own employees. Hr'g Tr. at 132 (Violette Testimony). Finally, when asked at the hearing on the Motion for Preliminary Injunction whether RehabCare's business operations at Green Hills were "separate and distinct from the operations that Progressive had," Plaintiff replied, "Yes." Hr'g Tr. at 65. Plaintiff counters these factors by arguing that there is a substantial continuity of operations between Progressive and RehabCare because RehabCare: provided the same types of rehabilitative services that Progressive provided to Green Hills residents; the services were provided in the same facility using the same or "functionally equivalent" equipment as that used by Progressive; RehabCare treated the same Green Hills residents as Progressive did; physical therapy prescriptions were made by the same physicians using the same forms for both Progressive and RehabCare; Lynn Mitchell ("Mitchell"), the director of nursing, and Dr. George Montgomery ("Dr. Montgomery") both maintained authority to prohibit physical therapists, whether from Progressive or RehabCare, from accessing patients; and Progressive and RehabCare both used forms based on Medicare mandated forms 700 and 701. Plaintiff further contends that the only real differences in Progressive's business operations and Rehab-Care's business operations are that Rehab-Care utilizes, though only rarely, a few additional pieces of therapy equipment, and that RehabCare might have provided slightly different services to specific Green Hills residents based on their unique needs. Thus, Plaintiff concludes, "a reasonable jury could find that Defendant continued to practice the business in the same manner and with the same fashion as its predecessor establishing that Defendant is a successor in interest." Pl.'s Br. at 24-25. Based on the record before it, the Court concludes that Plaintiff cannot demonstrate a continuity of business operations between Progressive and RehabCare, let alone a "substantial" continuity of business operations as required by the Department of Labor regulation. Indeed, the only "continuity" in this case comes by virtue of the fact that both Progressive and Rehab-Care provided, as a part of their overall business operation, physical therapy services on the Green Hills campus. Other than this commonality, Progressive and RehabCare had no relationship whatsoever. The mere fact that Progressive and RehabCare provided similar services to Green Hills by virtue of entirely separate and distinct contractual relationships, however, is insufficient to establish a "continuity of business operations" between Progressive and RehabCare. Indeed, to find otherwise would improperly blur the distinction between all independent service providers in a particular field. 2. Whether the current employer uses the same or similar facilities, machinery, equipment, and methods of production. Defendant next contends that there is no genuine issue of material fact on the question of whether RehabCare used the same or similar facilities, machinery, equipment, and methods of production. Specifically, Defendant points out that RehabCare did not purchase any of Progressive's equipment or supplies,[12] Def.'s Material Facts ¶ 35, and that the specific types of rehabilitation services offered to any Green Hills resident may vary depending on the professional opinion of the therapist and on the wishes of the resident's treating physician. Def.'s Br. at 7. Thus, Defendant argues, the "methods of production" employed by RehabCare are not the same as those utilized by Progressive. Id. Defendant additionally points out that the only real similarity between RehabCare and Progressive is the fact that both offered services on the Green Hills campus, a factor controlled by federal and state requirements that rehabilitation services be provided on the retirement facility's campus. Def.'s Material Facts ¶ 44. Plaintiff focuses her counter argument on the premise that a "reasonable jury could find that the physical therapy provided to the residents at Green Hills after Defendant took over the operation on July 27, 2007 was the same as that provided by Progressive." Pl.'s Br. at 25. In particular, Plaintiff points out that the Green Hills residents receiving therapy were the same, that the equipment and therapy room, both owned by Green Hills, were utilized by both Progressive and Rehab-Care in providing therapy, and that Progressive and RehabCare both used the same types of Medicare-mandated forms. Id. As it did with respect to Plaintiffs Motion for Preliminary Injunction, the Court agrees that Progressive and RehabCare provide fundamentally the same services, that is, occupational, speech, and physical therapy rehabilitation. The Court also agrees that these services were provided in the same location and in generally the same way by both Progressive and Rehab-Care. Plaintiff concedes, however, that this would be an equally true correlation between Progressive and any other rehabilitation services provider that might have entered into a contract with Green Hills. Given these factors, the Court believes that this factor is neutral in the determination of whether RehabCare is a successor in interest to Progressive. 3. Whether there has been a substantial continuity of employees. With regard to whether there was a substantial continuity of employees between Progressive and RehabCare, Defendant contends simply that "[n]o employees who previously worked for Progressive are currently working for RehabCare." Def.'s Br. at 8. Plaintiff does not dispute this fact, but argues instead that the Green Hills personnel that provided oversight of physical therapy services at Green Hills, namely Mitchell, Dr. Montgomery, and Copple, remained unchanged between Progressive and RehabCare. The Court previously rejected the contention that a continuity of Green Hills staff was sufficient to establish a continuity of employees for purposes of determining whether RehabCare is Progressive's successor in interest: Plaintiff offers absolutely no support for the proposition that this Court should evaluate continuity of employees by looking at whether the employees at Green Hills were the same during the contracts of Progressive and Rehab-Care. The question before the Court is whether Plaintiff is entitled to be reemployed by RehabCare on the basis that RehabCare is a successor in interest to Progressive, not whether Plaintiff is entitled to be reemployed by Green Hills. The fact that Progressive and Rehab-Care each provided services on the Green Hills campus does not change the fundamental fact that Plaintiff was never employed by Green Hills. Were this Court to adopt Plaintiff's position, successor interest liability under USERRA would be broadened beyond all logical bounds. Reynolds, 531 F.Supp.2d at 1062. Thus, as it did in its previous Order, the Court "finds that this factor weighs decidedly in favor of Defendant." Id. Plaintiff makes one alternative argument regarding the substantial continuity of employees factor, namely that the factor should be eliminated from consideration in this case because RehabCare discriminated against Plaintiff on the basis of her military service. Plaintiff cites Systems Management, Inc. v. NLRB, 901 F.2d 297 (3d Cir.1990) and Kallmann v. NLRB, 640 F.2d 1094 (9th Cir.1981) in support of this proposition. In both cases, which dealt with the applicability of union collective bargaining agreements when a company is purchased by new owners, the definition of "successor employer" depended on a finding that the "majority of the employees of the former enterprise were hired by the new employer." Systems Mgmt., 901 F.2d at 302 (citing Howard Johnson Co. v. Detroit Local Joint Executive Bd., Hotel & Restaurant Employees, 417 U.S. 249, 263, 94 S. Ct. 2236, 41 L. Ed. 2d 46 (1974) (requiring a "substantial continuity in the identity of the work force across the change in ownership")); Kallmann, 640 F.2d at 1100. The courts declined to require that this factor be proven where the new owner's discriminatory refusal to hire union members was the cause for the lack of continuity in the work force. See Kallmann, 640 F.2d at 1100-01 ("`It is manifest that but for [the new owner's] discriminatory refusal to offer employment to [the union's bargaining] unit employees, the Union would have continued to enjoy a majority representative status. We decline to permit an employer to rely upon its own wrongdoing and thus avoid its legal responsibilities.") (quoting NLRB v. Foodway of El Paso, 496 F.2d 117, 120 (5th Cir.1974)). Plaintiff urges that the Court should adopt the reasoning of Systems Management and Kallmann and conclude that "Defendant should therefore not be rewarded for its refusal to hire Plaintiff." Pl.'s Br. at 26. Plaintiff's argument in this regard is wholly without merit. Even assuming that Plaintiff could prove that Defendant discriminated against her on the basis of her military service, the fact remains that if RehabCare had hired Plaintiff, it would have had a grand total of one employee that was formerly employed by Progressive. The regulations require a "substantial" continuity of employees. While the term "substantial" is not defined in the regulations, it is commonly understood to refer to an "ample or considerable amount." Oxford English Dictionary Online, available at http://dictionary.oed.com (last visited December 10, 2008). The Court is hard pressed to imagine a scenario where "one" could be deemed "substantial" for purposes of this factor. 4. Whether there is a similarity of supervisors or managers. Defendant contends that there is no similarity between the supervisors and managers of Progressive and those of Rehab-Care. Plaintiff, on the other hand, points out that regardless of whether Progressive or RehabCare was providing therapy services, Dr. Montgomery and Mitchell both maintained the same ultimate responsibility and authority for oversight of physical therapy at Green Hills. Plaintiff further points out that Copple also maintained the same oversight requirements for all employees or contractors working at Green Hills, pursuant to state law. Pl.'s Br. at 29 ("Thus, Mr. Copple's responsibilities for ensuring that the individuals providing therapy to the residents of Green Hills remained unchanged after July 27, 2007."). Additionally, Plaintiff contends that RehabCare did not dictate to its therapists how therapy was performed at Green Hills and maintained "little supervision and oversight of the individual physical therapists." Id. Plaintiff admitted at the Hearing on her Motion for Preliminary Injunction that her supervisors at Progressive, Joe Albright and Drew Bossum, were no longer supervising anyone at Green Hills, and that RehabCare had its own supervisors and managers, none of whom ever worked for Progressive. Hr'g Tr. at 66. Though Plaintiff indicated that she had some supervision at Green Hills by Copple, Dr. Montgomery, nursing staff, etc., she further admitted that not one of those people had the right to hire her, fire her, or indeed take any action worse than insisting to Progressive that she not be allowed to provide services at Green Hills. Id. at 96. Copple testified at the same hearing that "[n]o one at Green Hills, including Dr. Montgomery, has the ability to take any direct supervisory actions against any of the RehabCare employees." Hr'g Tr. at 153. Dr. Montgomery testified at deposition that none "of the Green Hills staff or any of the people working there" had the right "to hire or fire anyone at all." Pl.'s App. at 130. Despite the clear and undisputed fact that not a single Progressive manager or supervisor became a manager or supervisor for RehabCare, Plaintiff nonetheless maintains that Murphree and Burns Int'l Security Services Inc. v. NLRB, 406 U.S. 272, 92 S. Ct. 1571, 32 L. Ed. 2d 61 (1972), are "dispositive to the case at bar" and require the Court to find that this factor of the analysis weighs in her favor. In Murphree, Major Thomas Murphree worked for a military support contractor, MPRI, Inc. ("MPRI") as an Assistant Professor of Military Science ("APMS") at Tulane University. Murphree, 460 F.Supp.2d at 704. At the time, MPRI had completed three years of a four year contract with the United States Army to staff the ROTC system partially with contract employees. Id. Just prior to Murphree's activation, COMTek won the contract and was designated to assume it from MPRI about six months later. Id. While deployed, MPRI filled Major Murphree's position at Tulane University and a second Tulane University APMS position was moved by the Army to Alabama. When Major Murphree sought reemployment under USERRA, COMTek informed him that neither of the APMS positions that previously existed at Tulane were available. Id. COMTek invited Major Murphree to apply for any APMS position in the nation, but emphasized its position that it owed Major Murphree no reemployment obligation because Major Murphree had been an employee of MPRI, not of COMTek. Id. Eventually, COMTek offered Major Murphree the APMS position in Alabama, but Major Murphree declined the offer because he viewed the position as inferior to his position at Tulane, and because he did not wish to relocate his family. Id. Despite a finding by the Department of Labor's Veterans Employment and Training Service that COTek was a successor in interest to MPRI, COMTek refused to rehire Major Murphree as an APMS at Tulane. Id. Major Murphree sued for, amongst other things, violation of USERRA. The district court in Murphree noted that COMTek had provided "no evidence to show that it is not a successor-in-interest under the Leib factors or the regulations" and that the available evidence "tend[ed] to support [Murphree's] position" that COMTek was a successor in interest to MPRI. Id. at 709. The court stated that genuine issues of material fact with regard to the Leib factors prevented a grant of summary judgment. Id. Specifically, the court noted, apparently in its attempt to address the "similarity of supervisors and managers" factor, that "Cadet Command clearly retained its administrative oversight of the ROTC program after the transition." Id. Plaintiff is apparently requesting that the Court draw a parallel with the present case and conclude that Dr. Montgomery, Mitchell, and Copple are the equivalent of Cadet Command. The Court, however, does not believe that Murphree offers compelling support for Plaintiff's argument. In Murphree, the precise contours of the relationships between the Army, Cadet Command, and MPRI or COMTek were neither addressed nor discussed. Furthermore, even assuming that the relationships were functionally equivalent to those in the present case, there is no indication that the Murphree court placed particular emphasis on this factor. Indeed, the conclusion that summary judgment was improper was equally, if not more, appropriate based on the court's findings that COMTek promised substantial continuity in the transition from MPRI, there was a significant continuity in the equipment used by MPRI and COMTek, there was a substantial continuity of employees,[13] and there was a substantial similarity of jobs and working conditions. Id. Plaintiff next cites Burns for the proposition that "when a service contract is involved, there is no requirement that the identical supervisors be hired by the successor for there to be continuity of the business operation." Pl.'s Br. at 28. In Burns, Burns International Security Services, Inc. ("Burns") replaced Wackenhut Corp. ("Wackenhut") in providing plant protection services to Lockheed Aircraft Service. Burns, 406 U.S. at 274, 92 S. Ct. 1571. Despite employing 27 former Wackenhut guards amongst its 42 total guards, Burns refused to bargain with the United Plant Guard Workers of America union, which had a National Labor Relations Board ("NLRB") certified collective bargaining agreement with Wackenhut. Id. The Supreme Court held that "where the bargaining unit remains unchanged and a majority of the employees hired by the new employer are represented by a recently certified bargaining agent there is little basis for faulting the [NLRB's order requiring] the employer to bargain with the incumbent union." Id. at 281, 92 S. Ct. 1571. The Court noted that, in the underlying decision, the Court of Appeals was "unimpressed with the asserted differences between Burns' and Wackenhut's operations": All of the important factors which the Board has used and the courts have approved are present in the instant case: "continuation of the same types of product lines, departmental organization, employee identity and job functions." ... Both Burns and Wackenhut are nationwide organizations; both performed the identical services at the same facility; although Burns used its own supervisors, their functions and responsibilities were similar to those performed by their predecessors; and finally, and perhaps most significantly, Burns commenced performance of the contract with 27 former Wackenhut employees out of its total complement of 42. Although the labor policies of the two companies differed somewhat, the Board's determination that the bargaining unit remained appropriate after the changeover meant that Burns would face essentially the same labor relations environment as Wackenhut: it would confront the same union representing most of the same employees in the same unit. Burns, 406 U.S. at 281 n. 4, 92 S. Ct. 1571 (quoting William J. Burns Int'l Detective Agency, Inc. v. NLRB, 441 F.2d 911, 915 (2d Cir.1971)). The Court does not read Burns so broadly as Plaintiff. The case does not forego any "requirement that the identical supervisors be hired by the successor for there to be continuity of the business operation" as Plaintiff contends. Rather, Burns provides, exactly the way Leib does, that a similarity in managers and supervisors is but one factor to be considered in the overall calculus of determining whether one entity is the successor of another. Nothing in Burns, however, can be read to support the argument that Plaintiff is making in this case, i.e., that the Court can find a similarity of supervisors and managers based on personnel that are not employed by either the predecessor company or the purported successor in interest. Accordingly, for the same reasons that the Court rejected Plaintiff's argument regarding continuity of employees, the Court finds that Plaintiffs argument regarding whether there is a similarity between supervisors and managers must fail, i.e., Plaintiff has conflated Green Hills and RehabCare. The question is whether RehabCare is a successor in interest to Progressive, which means that the primary consideration must be whether RehabCare had managers and supervisors similar to Progressive, not whether Green Hills had the same managers and supervisors during the tenure of both Progressive and RehabCare. 5. Whether there is a similarity of jobs and working conditions. Defendant argues that, other than the fact that both Progressive and RehabCare provide physical therapy services, there are no genuine similarities between the jobs and working conditions of the two entities. Specifically, Defendant points out that RehabCare provides therapy services at Green Hills pursuant to its own policies and standards and under working conditions determined by RehabCare. Plaintiff counters that the therapists working at Green Hills for both Progressive and RehabCare provide the same type of care, in the same rooms, with similar equipment and forms for Medicare reimbursement. Neither party has argued this factor differently than in the Motion for Preliminary Injunction. In its Order on that motion, the Court discussed Smegal, finding it useful in the analysis.[14] The Court found that the issue in Smegal was fundamentally the same as the issue before this Court, and the test applied in Smegal was functionally equivalent to the Leib test. Reynolds, 531 F.Supp.2d at 1063-64. The Court concluded that Smegal "supports Defendant's position that, while performing fundamentally the same work, Rehab-Care's employees were subject to different working conditions than were Progressive's employees, by virtue of different organizational policies and procedures." Id. at 1064. In its Order on Plaintiffs Motion for Preliminary Injunction, the Court "[could not] say that this factor weighs in favor of one side or the other, given the different working conditions and requirements of Progressive and RehabCare." Id. This conclusion is equally appropriate on the present record. 6. Whether there is a similarity of products or services. Plaintiff asserts that this factor weighs in her favor because Progressive and RehabCare each provided the same services at Green Hills. Defendant admits that the general rehabilitation services provided are fundamentally the same, but emphasizes that specific services provided to any particular patient may differ from one rehabilitation provider to another. Thus, since the specific services provided are subject to the professional judgment of the therapist involved, the services provided by RehabCare are not necessarily the same as those provided by Progressive. Defendant's position on this factor, while technically true, does not undermine the similarity in services provided by Rehab-Care and Progressive. Accordingly, the Court finds, as it did with respect to Plaintiff's Motion for Preliminary Injunction, that this factor weighs somewhat in favor of Plaintiff.[15] Having considered all of the Department of Labor/Leib factors, the Court finds, based on the evidence now before it, that no reasonable jury could conclude that RehabCare is a successor in interest to Progressive. Plaintiff cannot demonstrate a continuity of business operations, a continuity of employees, or a similarity in supervisors and managers. See 20 C.F.R. § 1002.35 ("In general, an employer is a successor in interest where there is a substantial continuity in operations, facilities, and workforce from the former employer."). While the services provided by both Progressive and RehabCare are generally the same, the only continuity in facilities, machinery, methodology, and working conditions comes from the fact that rehabilitative services are fairly uniform from one provider to another and the fact that the rehabilitative services provided in this case were provided by both companies at an identical location. In reaching this conclusion, the Court is mindful of its obligation to liberally construe the provisions of USERRA in favor of Plaintiff. See, e.g., Clegg v. Ark. Dept. of Correction, 496 F.3d 922, 931 (8th Cir.2007) ("Because USERRA was enacted to protect the rights of military service members and veterans it is construed broadly and `in favor of its military beneficiaries.'"); Coffman, 411 F.3d at 1238 ("USERRA `is to be liberally construed for the benefit of those who left private life to serve their country.'" (citations omitted)); Gordon v. Wawa, Inc., 388 F.3d 78, 81 (3d Cir.2004) ("[W]e construe USERRA's provisions liberally, in favor of the service member."); Hill v. Michelin N. Am., Inc., 252 F.3d 307, 312-13 (4th Cir.2001) ("Because USERRA was enacted to protect the rights of veterans and members of the uniformed services, it must be broadly construed in favor of its military beneficiaries."); Chance v. Dallas County Hosp. Dist., 176 F.3d 294, 296 n. 14 (5th Cir.1999) ("The legislative history does reveal that the USERRA is to be `liberally construed.'"); McGuire v. United Parcel Serv., 152 F.3d 673, 676 (7th Cir.1998) ("USERRA is to be liberally construed in favor of those who served their country."). This obligation for liberal construction does not, however, require the Court to discard traditional concepts of fairness and reasonableness in a strained effort to find liability where none actually exists. See, e.g., Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 285, 66 S. Ct. 1105, 90 L. Ed. 1230 (1946) (finding that liberal construction did not warrant the "distort[ion]" of the language of a USERA precursor); Aull v. McKeon-Grano Assoc., Inc., No. 06-2752, 2007 WL 655484, at *6 (D.N.J. Feb. 26, 2007) ("[E]ven a liberal construction [of USERRA] must have some limits."). On the undisputed facts of this case, Plaintiff was an employee of Progressive. She was assigned to work at Green Hills, but the terms of her employment, her rate of pay, benefits, schedule, and seniority were entirely dictated by Progressive. She could only be disciplined or terminated by Progressive. Indeed, the Court is unaware of any obligation by Progressive to maintain Plaintiffs employment at Green Hills, as opposed to at some other location where Progressive had contracted to provide services. Moreover, neither Plaintiff nor Progressive had any relationship with RehabCare. RehabCare did not assume Progressive's contract with Green Hills. It did not buy any equipment from Progressive or hire any Progressive employees. Successor liability, as Plaintiff points out in her brief, was developed to prevent situations where "`the victim of the predecessor's behavior may be left without a remedy unless recourse against the successor is allowed.'" Pl.'s Br. at 13 (quoting Holland v. Williams Mountain Coal Co., 256 F.3d 819, 825 (D.C.Cir.2001)). Successor liability is "fair," however, partly because a business entity that steps into the shoes of another business entity knows, or reasonably should anticipate, that its actions may cause it to acquire both the benefits and the liabilities of the predecessor. To adopt Plaintiffs position and hold that RehabCare is Progressive's successor in interest based simply on the fact that each had a contract to provide substantively similar rehabilitation services at Green Hills would undermine this entire premise. That is, any service contractor could be found a successor in interest to virtually any predecessor contractor based, not on its own affirmative actions or decisions, but solely on factors and circumstances entirely external to that service contractor and entirely external to the decision to contract in the first instance. The repercussions of such an outcome are simply untenable.[16] Accordingly, the Court concludes as a matter of law that RehabCare is not a successor in interest to Progressive. It, therefore, cannot be held liable under USERRA for failing to "reemploy" Plaintiff in her former position at Green Hills. B. Plaintiffs Discrimination Claim under 38 U.S.C. § 4311 Plaintiff's Complaint also alleges that Defendant discriminated against her on the basis of her military service, in violation of 38 U.S.C. § 4311. Plaintiff specifically alleges in Count 1: 1) RehabCare is an "employer" as that term is defined by USERRA; 2) RehabCare denied Plaintiff employment, reemployment, or a benefit of employment; and 3) Plaintiffs military service was a motivating factor in Rehab-Care's decision to deny Plaintiff these employment opportunities. Compl. ¶¶ 23-27. USERRA provides: (a) A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation. . . . (c) An employer shall be considered to have engaged in actions prohibited— (1) under subsection (a), if the person's membership, application for membership, service, application for service, or obligation for service in the uniformed services is a motivating factor in the employer's action, unless the employer can prove that the action would have been taken in the absence of such membership, application for membership, service, application for service, or obligation for service. 38 U.S.C. § 4311 (emphasis added). The Eighth Circuit articulated the standards for evaluating a USERRA discrimination claim in Maxfield v. Cintas Corp. No. 2: "USERRA, enacted in 1994 to improve the Veterans' Reemployment Rights Act (`VRRA'), prohibits employment discrimination on the basis of military service." Gagnon v. Sprint Corp., 284 F.3d 839, 852 (8th Cir.2002), abrogated on other grounds, Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S. Ct. 2148, 156 L. Ed. 2d 84 (2003). An employer violates USERA "when a person's membership in the uniformed services is a motivating factor in the employer's action, `unless the employer can prove that the action would have been taken in the absence of such membership, ... or obligation for service.'" Id. (quoting 38 U.S.C. § 4311(c)(1)). "Unlike the McDonnell Douglas framework [utilized in Title VII claims], the procedural framework and evidentiary burdens set out in section 4311 shift the burden of persuasion, as well as production, to the employer." Id. at 854. Under USERRA, an employee must make "`an initial showing... that military status was at least a motivating or substantial factor in the [employer's] action.'" Id. (quoting Sheehan v. Dep't of Navy, 240 F.3d 1009, 1014 (Fed.Cir.2001)). If the employee makes such a showing, "`the [employer] must prove, by a preponderance of evidence, that the action would have been taken despite the protected status.'" Id. (quoting Sheehan, 240 F.3d at 1014). 427 F.3d 544, 551 (8th Cir.2005). Plaintiff contends that it is apparent from the record that Plaintiff's military service was a "motivating factor" in Defendant's employment decisions. It is not entirely clear, however, precisely what employment decision Plaintiff contends Defendant made in a discriminatory fashion. Presumably, Plaintiff objects to either Defendant's decision not to "reemploy" her under USERRA or Defendant's decision not to hire her in the event that it was not obligated to "reemploy" her. Plaintiff argues that a reasonable jury could find that "the contract signed by Defendant would have permitted it to hire Plaintiff at her former and requested rate of $51.28/hour and that Defendant's inconsistent reasons for refusing to do so could be masking a discriminatory animus toward Plaintiff based on her military status." Pl.'s Br. at 32. As noted supra, in all her interactions with RehabCare, Plaintiff was insistent that she had a right to be "reemployed" at the Green Hills facility, pursuant to UERRA, on terms generally equivalent to those she enjoyed at Progressive.[17] Specifically, Plaintiff requested a "PRN"[18] position at a rate of $65 per hour, though at some point in time she did reduce her request to $51.28 per hour with additional benefits.[19] In the meeting between Violette and Plaintiff on July 27, 2007, Violette had three offers of employment to present to Plaintiff, one for full time employment, one for part time employment, and one for PRN status.[20] Def.'s Material Facts ¶ 57. During the meeting, Violette informed Plaintiff that RehabCare did not believe that it had an obligation to "reemploy" her under USERRA, but that the offers of employment were "good, fair rates, market rates. . . ." Def.'s Supp.App. (Violette Dep. at 72). Plaintiff declined to hear the offers, maintaining that "if they are not going to honor the USERRA law and reinstate me into my job that I had prior to leaving, I didn't want to hear the offer." Hr'g Tr. at 83; see also Def.'s Supp.App. (Pl.'s Dep. at 116-17) ("I didn't ever talk to anyone at RehabCare on specifics of an offer. Melissa and I decided that if, you know, they weren't going to recognize UERRA, we wouldn't talk about an offer because that was—I didn't feel—I felt I should be coming back into my job, not an offer."). It was only after filing the present lawsuit that Plaintiff heard from her attorneys what the offers were, though she declined to accept them even at that point in time. Def.'s Supp.App. (Pl.'s Dep. at 116-17) ("My attorney has talked to RehabCare about an offer later."). As discussed extensively in the previous section, Plaintiff was incorrect in her belief that RehabCare was her "employer" for purposes of USERRA "reemployment" under § 4312. Hence, RehabCare was entirely warranted in declining to "reemploy" Plaintiff on terms and conditions that were the same or equivalent to those Plaintiff enjoyed at Progressive. Plaintiffs claim, accordingly, could only survive if Rehab-Care, motivated at least in part by a discriminatory animus toward Plaintiffs military service, "denied initial employment" to her. The facts are clear, however, that RehabCare did not deny Plaintiff initial employment. It made every effort to offer Plaintiff the position she sought, but Plaintiff refused to even hear the offers, let alone to entertain them.[21] The Court also rejects Plaintiff's contention that comments by RehabCare employees support a conclusion that Defendant's decisions regarding employing her were motivated by military discrimination. Plaintiff cites the following "facts" in support of this proposition: 1) Defendant viewed Plaintiff and her claims under UERRA as a "distraction"; 2) Defendant made negative comments about Plaintiff and her assertion of USERRA rights; 3) Defendant developed a "game plan" in 2007 to deal with Plaintiff but none of its employees remember what that "game plan" was or who developed it; and 4) Defendant referred to Plaintiff as "beloved" by Copple and referred to not hiring her as a "bomb" to be dropped on Copple. When viewed in context, however, the comments to which Plaintiff refers do not support a discriminatory animus, but rather actually reveal significant efforts by RehabCare to employ Plaintiff under mutually agreeable terms pursuant to Rehab-Care's contract to provide services at Green Hills. For example, the "distraction" and "gameplan" references were made in response to an email from Violette to Curtis Davies ("Davies"). Violette told Davies that "[Plaintiff] called me again just now and wanted to remind me about USERRA.... As she is really going to push this USERRA thing and is confident that it includes her situation I will probably need your help Curt in handling this when the time comes." Pl.'s App. at 204. Davies replied: Let's stick to our gameplan. Don't get distracted by her throwing out USERA language. USERRA requires her employer to reemploy her. She has never worked for us. Once we have the financials and the Performa on this facility, we will determine rates of pay for those coming to work for us using the normal process. Id. Similarly, Plaintiff's claim of "negative comments" is a mischaracterization of the record. Plaintiff specifically references a comment that Plaintiff was "holding the contract hostage." The actual context of the comment, however, reveals that RehabCare had become aware of Plaintiff's demand for $65 per hour and was still attempting to finalize its contractual agreement with Green Hills, knowing that Copple wanted Plaintiff to continue providing rehabilitation services at Green Hills. Pl.'s App. at 206-07. Colleen Jones ("Jones") stated that if Plaintiff "attempts to hold this contract `hostage' for $65/hr," Jones had been instructed to contact Life-Care and "they will speak directly with Rod [Copple]." Id. at 206. And Jones' reference to "Copple's `beloved Pam,'" and a "bomb," when placed in full context, was clearly an effort to ensure full disclosure in the ongoing negotiations between Green Hills and RehabCare: "Does Rod [Copple] know and understand that we may not hire her if she won't come down on her rate? I wouldn't want Rod to tell [LifeCare] we `tricked' him into signing the contract and then he doesn't get his beloved Pam because we waited until the ink was dry to drop the bomb." Pl.'s App. at 209. Though perhaps distasteful or inarticulately stated, the Court concludes that no reasonable jury could find that such comments are indicative of discrimination. IV. CONCLUSION For the reasons stated herein, Defendant's Motion for Summary Judgment (Clerk's No. 33) is GRANTED as to both Counts of Plaintiffs Complaint. IT IS SO ORDERED. NOTES [1] Plaintiff joined the Army Reserves in 1999 as a First Lieutenant and currently holds the rank of Major. Def.'s Material Facts ¶ 27. She was notified in November 2005 that she would be activated for military duty on March 23, 2006. Id. ¶ 28. She sought, and was granted, a military leave of absence from Progressive. Id. ¶ 29. [2] Defendant contends that Progressive was not qualified to provide rehabilitation services for an SNF, whereas Plaintiff argues that Progressive simply had staffing concerns and, therefore, declined to provide services for SNFs. See Def.'s Material Facts ¶ 33; Pl.'s Response ¶ 33. The reason for Progressive's termination of services at Green Hills is not material to the present dispute. [3] While Plaintiff admits that Progressive's contract with Green Hills terminated in June 2007, Plaintiff contends that Progressive nonetheless continued to provide rehabilitation services at Green Hills until July 28, 2007. Copple testified at the Hearing on Plaintiff's Motion for Injunction that Progressive actually subcontracted with a physical therapy group in Boone, Iowa to provide this "transitional" coverage. See Hr'g Tr. at 149. [4] Deerfield is a retirement community located in Des Moines, Iowa. Def.'s Material Facts ¶ 10. [5] "Terminal leave" is leave time Plaintiff accrued that she was permitted to take prior to the formal termination of her active duty status. According to Plaintiff, she was "free to begin employment with a civilian employer" once she commenced terminal leave. Pl.'s Material Facts ¶ 78. [6] Plaintiff contends that Progressive forwarded the letter to RehabCare. Pl.'s Material Facts ¶ 78. Defendant contends that Copple forwarded the letter to RehabCare. Def.'s Response to Pl.'s Material Facts ¶ 78. In fact, an e-mail from Copple to Colleen Jones stated that Copple had "faxed and emailed [Plaintiff's letter] to [Progressive's owners] (Joe and Steve)." Pl.'s App. at 220. Regardless, there is no real dispute that RehabCare was aware that Plaintiff believed that whatever company took over rehabilitation services at Green Hills would be obligated to "reemploy" her under USERRA. Indeed, Plaintiff talked with Melissa Violette, the regional manager of operations for RehabCare, in June 2007. Violette told Plaintiff that RehabCare was aware that Copple wanted Plaintiff to return to Green Hills and that RehabCare was interested in discussing the matter with Plaintiff. Hr'g Tr. at 38. [7] The Leib test puts forth seven factors for consideration of whether one entity is a successor in interest to another, while the Department of Labor regulation puts forth only six factors. Two of the Leib factors, however, "use of the same plant" and "similarity of jobs and working conditions," are combined in the second factor of the Department of Labor regulation, which asks "[w]hether the current employer uses the same or similar facilities, machinery, equipment, and methods of production." Compare Leib, 925 F.2d at 247 with 20 C.F.R. § 1002.35. [8] The district court in Coffman determined that an analysis of the Leib factors "is unnecessary and improper when no merger or transfer of assets even transpired between the two subject companies." Coffman, 411 F.3d at 1237. [9] Plaintiff denied Defendant's assertion that "Progressive has no current contractual relationships with Green Hills, Deerfield, or RehabCare," asserting that the contract between Progressive and Green Hills provides for "a continuing contractual duty to provide records as needed." Pl.'s Response ¶ 19. The Court finds this minimal continuing duty immaterial to the successor in interest analysis. Furthermore, Plaintiff's denial is more appropriately a "qualification," given Plaintiff's own testimony at the Hearing on Plaintiff's Motion for Preliminary Injunction that Progressive has no continuing relationship at all with Green Hills. See Hr'g Tr. at 60. [10] Plaintiff testified as follows at the Hearing on Plaintiff's Motion for Preliminary Injunction: Q. Okay. Progressive never owned any portion of Green Hills assets; is that correct? A. Not to my knowledge. Q. And never bought any equipment for— from Green Hills, correct? A. Not to my knowledge. Q. And then conversely, Green Hills, never owned any portion of Progressive; correct? A. Not that I'm aware of. Q. To your understanding the only relationship that ever existed between Green Hills and Progressive was this independent contractor relationship; correct? A. That's my understanding. Hr'g Tr. at 62-63. [11] See also Hr'g Tr. at 66 (Plaintiff's testimony: Q: "Progressive had its own policies and procedures how things were done, correct?" A: "Yes." Q: And ... RehabCare has its own policies and procedures on how things were done?" A: "Yes."). [12] Much of the therapy equipment employed by both Progressive and RehabCare was owned exclusively by Green Hills. [13] COMTek even agreed to honor MPRI's "incumbent tenure for seniority based benefits." Murphree, 460 F.Supp.2d at 709. [14] In Smegal, a case arising under Labor Management Relations Act ("LMRA"), the sole question before the court was whether Gateway Foods of Minneapolis, Inc. was a successor employer to National Super Markets, Inc. ("NSM"), such that it was obligated to adhere to the terms of a collective bargaining agreement between NSM and a local union. 819 F.2d at 192. The Eighth Circuit Court of Appeals relied on the fact that the "major test for a successor employer is whether there is substantial continuity between the new operation and the old, particularly with regard to the employees." Id. at 193. The Court of Appeals found that the district court was not clearly erroneous in finding that Gateway was not a successor to NSM, since the NSM employees made up only a minority of the new group, because their work and working conditions had changed, and because the services offered had changed. Id. [15] The Court reiterates its conclusion from the Order on Plaintiff's Motion for Preliminary Injunction that this factor weighs only marginally in favor of Plaintiff. Much testimony was presented about efforts by Green Hills to become a skilled nursing facility. Plaintiff admits that Progressive ended its contract with Green Hills because it was either unable or unwilling to provide services to Green Hills once Green Hills became a skilled nursing facility. To become a skilled nursing facility under Medicare, Green Hills needs a separate Medicare certification, and has many additional requirements, over and above those that it made available on an outpatient basis. Hr'g Tr. at 69. Plaintiff admitted further that the rehabilitation services provided to a skilled nursing facility would likely be more frequent than for outpatient services, and that the paperwork is monitored more closely. Id. at 69. Progressive provided outpatient services as part of its contract with Green Hills, but did not provide skilled nursing facility services. Id. at 64. Though Green Hills had not yet become a skilled nursing facility at the time of Plaintiff's return from active duty, and indeed has not to date become a skilled nursing facility, this difference between services provided by Progressive and those that will eventually be provided by RehabCare tempers to some extent the conclusion that the similarity of products and services factor weighs in Plaintiff's favor. Reynolds, 531 F.Supp.2d at 1064 n. 8. [16] For example, service contractors would be loathe to enter into contract without a full inquiry and investigation into every other vendor who previously provided like services for fear of some unforeseen liability arising under the doctrine of successor in interest. [17] As noted previously, at the time of her deployment, Plaintiff was receiving $51.28 per hour as an employee of Progressive. She worked 30 hours per week, had three weeks of annual vacation, and was allowed to participate in the Progressive's 401K program. Hr'g Tr. at 39 [18] A "PRN" physical therapist is employed on an "as needed" basis and generally receives a higher rate of pay in lieu of benefits. Def.'s Material Facts ¶ 51; Pl.'s Response ¶ 51. [19] Plaintiff testified that she requested $65 per hour because PRN positions do not get benefits and because she had been told that "if you don't receive any benefits, that [30% should be added] on to your basic pay." Hr'g Tr. at 37. Thus, in Plaintiff's mind, $65 per hour in a PRN position would be approximately equivalent to her previous rate of pay with benefits. [20] RehabCare's offers of employment were for: "$35/hr with benefits after 32 hours/ week"; "part time position at $40/hr with partial benefits (vacation, Professional Choice Account)"; and "on-call PRN position at $45/hr without benefits but with 401(k) that matches 50% of 1 st 4%." Pl.'s App. at 226; see also Def.'s Supp.App. (Violette Dep. at 71-72). [21] To the extent that Plaintiff argues that Defendant deprived her of a "benefit of employment" or of "initial employment" by making "lowball" pay offers, her claim also must fail. The evidence in the record supports a finding that RehabCare attempted to make offers of employment to Plaintiff that provided reasonable compensation by RehabCare's standards. See Def.'s Material Facts ¶¶ 49 ("In the geographic area in question, which includes the Green Hills Retirement Community in Ames, Iowa, RehabCare's highest paid full time physical therapist makes $36.00 per hour."); 50 ("RehabCare currently has no part-time physical therapists working in this geographic area."); 51-54 (providing that PRN physical therapists in this geographical region have a "recommended target hourly rate" of $40.00 per hour according to Violette, but that a few PRN therapists make $50.00 or more per hour and that one makes $75 per hour, but is utilized only occasionally in "dire" situations); 55 (discussing that one factor considered in determining RehabCare's wage rates is "the hourly reimbursement rate to which RehabCare is entitled under its contract with a facility such as Deerfield"). The mere fact that Plaintiff did not believe the offers were reasonable once she actually found out what they were during the course of the present litigation does not automatically give rise to an inference that a jury could conclude the offers were unreasonable, let alone that they were unreasonable due to a discriminatory animus. Regardless, even under the most liberal construction of the USERRA statute, the Court is hard-pressed to say that the content of RehabCare's offers is even relevant given that Plaintiff refused to hear them in the first instance.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2339471/

97 F. Supp. 2d 1312 (2000) Kelly FURLONG, on behalf of himself and all others similarly situated, Plaintiffs, v. JOHNSON CONTROLS WORLD SERVICES, INC., a Florida corporation, Defendant. No. 99-1768-CIV. United States District Court, S.D. Florida. March 6, 2000. *1313 Donald J. Jaret, Law Offices of Donald J. Jaret, P.A., Miami, FL, for Plaintiffs. Dabney D. Ware, Kevin E. Hyde, Foley & Lardner, Jacksonville, FL, Mark A. Salzberg, Foley & Lardner, West Palm Beach, FL, for Defendant. ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT MORENO, District Judge. THIS COUSE came before the Court upon Defendant Johnson Controls World Services, Inc.'s Motion for Summary Judgment (d.e.# 19), filed on December 22, 1999. THE COURT has considered the motion, responses and the pertinent portions of the record, and is otherwise fully advised in the premises. The Plaintiff has filed a complaint alleging that the Defendant violated the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq., by failing to pay him overtime compensation. Because the Court finds that as a matter of law the Plaintiff was properly classified as an exempt "administrative employee," the Plaintiff is not entitled to overtime compensation. Therefore, the Court grants summary judgment in favor of the Defendant. LEGAL STANDARD Summary judgment is authorized where there is no genuine issue of material fact. Fed.R.Civ.P. 56(c). The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970). The party opposing the motion for summary judgment may not simply rest upon mere allegations or denials of the pleadings; the nonmoving party must establish the essential elements of its case on which it will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538 *1314 (1986). The nonmovant must present more than a scintilla of evidence in support of the nonmovant's position. A jury must be able reasonably to find for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). FACTUAL BACKGROUND The plaintiff Kelly Furlong ("Mr. Furlong") is suing his former employer, Johnson Controls World Services, Inc. ("Johnson Controls"), under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., for unpaid overtime compensation allegedly owed to him. Mr. Furlong worked for Johnson Controls, a contract service provider, from July 1, 1997 to January 25, 1999 as a senior benefits analyst in the Human Resources department. His final annual salary was $44,593.07. Pursuant to the company's sick leave policy, Mr. Furlong was always paid in whole day increments, with deductions made to his pay only for full day absences. On September 9, 1998, Mr. Furlong began a leave of absence. This leave was treated by Johnson Controls under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq. Mr. Furlong's leave continued until his physician, Dr. Gonzalez, released him to return to work on November 12, 1998. Mr. Furlong returned to work on November 16, 1998. Upon returning to work, Mr. Furlong communicated to Johnson Controls' representatives that he was released to work part-time only. Mr. Furlong also claimed that he should be receiving partial short term disability benefits since he was only released to work part-time due to the same serious health condition for which he had previously been on Family and Medical Leave. The week of November 16-20, 1998 Mr. Furlong worked one full day, three partial days, and was absent one full day. During this time, Johnson Controls worked with Mr. Furlong and his physician to determine if Mr. Furlong could work full-time or part-time since Dr. Gonzalez's November 12 release did not specify any work restrictions. On November 20, 1998, Dr. Gonzalez indicated that the Plaintiff was unable to return to work. Thus, Mr. Furlong was granted additional FMLA leave. Despite the doctor's determination that he was unable to return to work, Mr. Furlong reported to work the following week and worked two partial days.[1] The partial and full day absences between November 16-27 were counted against Mr. Furlong's twelve-week entitlement to FMLA. Then, on November 30, 1998, Johnson Controls received a second medical release that permitted Mr. Furlong to return to full-time work. On December 1, 1998, Mr. Furlong reported to work and worked full days from December 1-4, 1998. However, for the remaining days in December, Mr. Furlong continued to have numerous absences—both partial day and full day absences.[2] After the November 30, 1998 recommendation of Dr. Gonzalez releasing Mr. Furlong to full-time work, Johnson Controls no longer reduced Mr. Furlong's salary for any partial day absences in December, and only withheld compensation for full day absences. LEGAL ANALYSIS The FLSA requires employees to be paid overtime for all hours worked beyond forty hours in a workweek.[3]See 29 U.S.C. *1315 § 207. However, the FLSA exempts from the overtime compensation requirement those employees who properly qualify as "administrative employees." See 29 U.S.C. § 213(a)(1). For an employee to fall within the FLSA's exemption for administrative employees, that employee must be paid "on a salary basis." 29 C.F.R. § 541.2(e). Mr. Furlong claims that he is not an exempt salaried employee under the FLSA and, therefore, is entitled to overtime compensation for the hours worked in excess of forty. The Defendant, on the other hand, contends that Mr. Furlong is an exempt administrative employee because he satisfies the short test created by the implementing regulations to determine whether a person is an "administrative employee." See 29 C.F.R. § 541.214. The federal regulations have created two tests for determining if a person is an exempt employee. The "long test" applies to those who earn less than $250 per week, while the "short test" applies to those who earn $250 or more per week. See 29 C.F.R. §§ 541.2 and 541.214. "The regulations offer the `short test,' a safe harbor for employers, which an employee may satisfy even if she fails the long test." Nicholson v. World Business Network, Inc., 105 F.3d 1361, 1364 (11th Cir.1997). Since Mr. Furlong was paid more than $250 per week, the Court shall apply the short test. Under the short test, an individual earning at least $250 per week qualifies as an exempt bona fide administrative employee if the following conditions are met: (1) the employee performs as his primary duty office or non-manual work directly related to management policies or general business operations; (2) the employee's work "includes work requiring the exercise of discretion and independent judgment; and (3) the employee is paid on a salary basis within the meaning of the FLSA." 29 C.F.R. § 541.214; see also Haywood v. North American Van Lines, Inc., 121 F.3d 1066,1069 (7th Cir.1997). 1. Primary Duty As for the first prong of the short test, Johnson Controls must show that Mr. Furlong's duties consisted primarily of office or non-manual work directly related to management policies or general business operations. See Haywood, at 1071. Mr. Furlong held the position of senior benefits analyst at Johnson Controls. His primary duty was to evaluate the company's benefits plan and design changes. Specifically, as a senior benefits analyst, Mr. Furlong's duties consisted of: • analyzing plan designs and benefits procedural or system changes; making appropriate recommendations; • conducting plan audits to ensure compliance; assuring appropriate documentation; • developing cost/benefit analysis of various plan design changes and preparing reports and recommendations based on findings; • developing and maintaining a standard administrative manual for all benefit programs; • administering local network of doctors, hospital and support services; • coordinating customer satisfaction surveys for benefits and related products; analyzing results and making recommendations; • reviewing and revising benefit materials; communicating benefit updates and changes to employees; • assisting in developing and providing training on benefits programs and procedures; and • performing other duties assigned. The Court finds that these responsibilities are clearly office or non-manual work directly related to the management policies or general business operations of Johnson Controls. *1316 2. Exercise of Discretion and Independent Judgment As for the second prong, Johnson Controls must show that Mr. Furlong's work was of the type that required the exercise of discretion and independent judgment. Mr. Furlong claims summary judgment is inappropriate because there is a question of material fact as to whether he in fact performed the duties indicated above and whether the position in fact required the exercise of independent judgment and discretion. Aside from this conclusory statement, Mr. Furlong has not presented any evidence to satisfy his burden under Rule 56(e) that requires the nonmoving party to go beyond the pleadings and by his own affidavits, depositions, answers to interrogatories, etc., designate specific facts that would show there is a genuine issue for trial. See Fed.R.Civ.P. 56(e); see also Holifield v. Reno, 115 F.3d 1555, 1564 n. 6 (11th Cir.1997) (stating that "conclusory assertions to the contrary, in the absence of supporting evidence, are insufficient to withstand summary judgment"). In light of this, the Court finds that Mr. Furlong's work, as described above, required him to "routinely exercise discretion and independent judgment in analyzing benefit plans, changes and designs." See Aff. of Bettie Kennedy, ¶ 7. 3. Paid on a Salary Basis Finally, the third prong of the "short test" requires that Mr. Furlong be paid on a "salary basis" within the meaning of the FLSA. 29 C.F.R. § 541.214. As a threshold matter, Mr. Furlong's compensation must be more than $250 per week. As of the date of termination, Mr. Furlong's salary was approximately $857.60 per week, which substantially satisfies the minimum pay required under the federal regulations. Under the federal regulations, the salary basis of pay also requires that an employee receive "his full salary for any pay week in which he performs any work without regard to the number of days or hours worked." 29 C.F.R. §§ 541.212 and 541.118. The parties agree that, in general, pay deductions for partial day absences, or even the real possibility of such deductions, violate the salary basis of pay and render the employee non-exempt. However, the regulations contain a statutory exception. The regulations permit an employer to make deductions for absences of a day or more attributable to sickness or disability "if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for loss of salary occasioned by both sickness and disability." 29 C.F.R. §§ 541.212 and 541.118. In addition, an employer may deduct an employee's salary for hours taken as intermittent or reduced leave under the FMLA without losing the exempt status of the employee. See 29 C.F.R. § 825.206. Moreover, the regulations contain a "statutory window of correction" provision, where an employer who makes an inadvertent deduction does not necessarily lose an employee's exemption if the employer reimburses the employee for such deductions and promises to comply in the future. See 29 C.F.R. § 541.118(a)(6). The parties do not dispute the treatment of the FMLA leave between September 9 and November 16, 1998. Mr. Furlong's leave during that period of time was made pursuant to Johnson Controls' bona fide sick leave policy. The main disagreement between the parties is whether the Plaintiff was properly placed on intermittent FMLA leave during the period November 16-27, 1998. If so, then the deductions for partial days would have been permissible. However, if the placement on intermittent FMLA leave was improper, then the deductions would have violated the salary basis requirement, rendering the exemption from the FLSA "not applicable to [Mr. Furlong] during the entire period when such deductions were being made." See Auer v. Robbins, 519 U.S. 452, 117 S. Ct. 905, 912, 137 L. Ed. 2d 79 (1997)(citing 29 C.F.R. § 541.118(a)(6)). *1317 The crucial issue for this Court to determine then is whether the salary deductions made for partial day absences the week of November 16-27, 1998 violate the salary basis pay requirement described in the federal regulations. See 29 C.F.R. §§ 541.212 and 541.118. Mr. Furlong claims that he was not on FMLA leave as evidenced by Johnson Controls' letter dated January 25, 1999, notifying Mr. Furlong that his leave of absence covered the period 9/8/989 thru 11/16/98. Thus, he should have received his full salary for partial days worked thereafter. Because his pay was docked for partial day absences between November 16-27, 1998, Mr. Furlong argues it constituted an impermissible salary deduction making the FLSA exemption inapplicable to him. Thus, if Mr. Furlong was a non-exempt employee, he is owed overtime compensation since the beginning of his employment. Johnson Controls claims that the decision to deduct Mr. Furlong's pay for partial days worked between November 16-27 was based on the belief that the absences were properly treated as intermittent leave under the FMLA. It further argues that this was consistent with Mr. Furlong's representations that he was only released to work part-time. See Aff. of Bettie Kennedy, ¶ 6 and ex. O. After being released to full-time work by Dr. Gonzalez on November 30, 1998, Johnson Controls no longer deducted Mr. Furlong's salary for partial day absences in December 1998, which was consistent with the treatment of exempt administrative employees under the FLSA. Further, Johnson Controls argues that even if the deductions were impermissible, Mr. Furlong would only be entitled to overtime compensation for the time period when the deductions were impermissibly made. The Court agrees. Based on the record, the Court finds that Mr. Furlong was released by Dr. Gonzalez on November 12, 1998 and returned to work on November 16, 1998. The release was unclear as to whether Mr. Furlong could work part-time or full-time work. Mr. Furlong represented that the release was for part-time work only. See Aff. of Bettie Kennedy, ex. O (e-mails from Mr. Furlong). On November 20, 1998, Dr. Gonzalez indicated that Mr. Furlong was unable to return to work. See Aff. of Bettie Kennedy, ex. K. Nevertheless, Mr. Furlong continued to show up for work and put in two partial days during the short Thanksgiving week (Thursday and Friday were holidays). In accordance with Johnson Controls belief that Mr. Furlong was returning to work part-time, Johnson Controls treated his return as intermittent leave under the FMLA and continued to make deductions to his daily salary for partial days worked between November 16-27, 1998. Then, on November 30, 1998, Dr. Gonzalez officially recommended that Mr. Furlong was able to immediately return to work full-time. See Aff. of Bettie Kennedy, ex. L. From that day forward, the only deductions made to Mr. Furlong's pay were for full day absences. If there were any impermissible deductions made during the two-week pay period between November 16-27, they would total $289.47. Further, Johnson Controls has chosen to avail itself of the statutory window of correction in 29 C.F.R. § 541.118(a)(6) and has submitted a check to Mr. Furlong for $267.29 as reimbursement for any perceived impermissible deductions. See Auer v. Robbins, 519 U.S. 452, 117 S. Ct. 905, 912, 137 L. Ed. 2d 79 (1997)(indicating that the language of the regulation does not address the timing of reimbursement and stating that the respondent could preserve the employee's exempt status by complying with the corrective provision in § 541.118(a)(6)). Based on this election, the Court finds that any impermissible deductions that may have been inadvertently made for reasons other than lack of work and based on Johnson Controls' reliance on Mr. Furlong's representations and actions have been remedied or reimbursed. Therefore, the Court concludes that Johnson Controls has preserved the exempt *1318 status of Mr. Furlong. Even if Johnson Controls had not availed itself of the statutory window of correction, Mr. Furlong would only be entitled to overtime compensation during the time period when the impermissible deductions might have been made—between November 16-27, 1998. See generally Auer, 117 S.Ct. at 910-912. Since Plaintiff did not work more than forty hours during that period of time, there is no overtime pay to which he would be entitled. CONCLUSION In light of the analysis above, as a preliminary matter the Court concludes that the Plaintiff was an employee exempt from the overtime compensation requirements of the FLSA because he was an administrative employee paid on a salary basis. For the reasons stated above, it is ADJUDGED that Defendant's motion for summary judgment is GRANTED. NOTES [1] Mr. Furlong was absent one day and the remaining two days coincided with the Thanksgiving holidays. [2] On December 9, 1998, Mr. Furlong was absent, and worked a partial day (seven hours) on December 10, 1998. Then, from December 17-29, 1998, Mr. Furlong was totally absent from work. On December 30, 1998, he worked a partial day. [3] Johnson Controls has submitted the affidavit of Bettie Kennedy, Vice President, Human Resources, indicating that a poster explaining the Fair Labor Standards Act is posted at the headquarters facilities of Johnson Controls, "specifically at the north hallway in front of the Employee Break Room." See Aff. of Bettie Kennedy, ¶ 5.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2339985/

342 F.Supp. 898 (1972) Walter Trent AARON, for himself and for all others similarly situated, v. Curtis CLARK and D. W. Austin, Jr. in his capacity as Clerk of the Fulton County Civil Court. Civ. A. No. 16144. United States District Court, N. D. Georgia, Atlanta Division. May 4, 1972. M. Victor Geminiani, Steven Gottlieb, Atlanta, Ga., for plaintiff. Curtis Clark, pro se. Archer, Patrick & Sidener, East Point, Ga., for defendant Austin. Before BELL, Circuit Judge, and EDENFIELD and FREEMAN, District Judges. EDENFIELD, District Judge: Walter Trent Aaron invites us in this case to declare that the Georgia statutes providing for pre-judgment garnishment are unconstitutional in their entirety on the authority of Sniadach v. Family Finance *899 Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). We decline the invitation and limit our constitutional decree to the precise facts presented by this case. See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). Aaron and defendant Clark were involved in an automobile accident in November, 1971, and on January 3, 1972 Clark filed suit in Fulton County Civil Court against Aaron for compensatory and punitive damages totaling $69,250. On January 6, without notice to Aaron and prior to any hearing, Clark filed an affidavit and bond for garnishment with defendant Austin, Clerk of the Civil Court, as provided by Ga.Code Ann. §§ 46-101, 46-102 (1965).[1] In the affidavit Clark swore that Aaron was indebted to him in the amount of $69,250, that he had "reason to apprehend the loss of said sum or some part thereof unless process of Garnishment issues," and that the sum sought to be garnished was not daily, weekly, or monthly wages. A summons of garnishment was served on the Citizens and Southern National Bank, as well as several other banks in the Atlanta area. Subsequently the C & S bank notified Aaron that, pursuant to the summons of garnishment, all his money on deposit — $145 — and all money deposited in the future would be turned over to the Civil Court. Aaron is now, and was at the time of the garnishment, a full-time student at DeKalb County Junior College, and the funds on deposit at the C & S bank were to have been used to pay tuition for the upcoming quarter at that college. The court granted Aaron leave to proceed in forma pauperis, and he filed this class action seeking declaratory and injunctive relief under 42 U.S.C. § 1983 (1970). The court assumed jurisdiction, 28 U.S.C. § 1343 (1970); Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (Mar. 23, 1972), and granted Aaron's petition for a temporary restraining order enjoining the continued garnishment of the funds on deposit at C & S. A three-judge court was convened pursuant to 28 U.S. C. § 2281 (1970). In Sniadach the Supreme Court held unconstitutional a Wisconsin statute which allowed a creditor with no special need to garnish the wages of an alleged debtor without notice and prior to a hearing. The Court stated that: "A procedural rule that may satisfy due process for attachments in general, *900 see McKay v. McInnes, 279 U.S. 820 [49 S.Ct. 344, 73 L.Ed. 975], does not necessarily satisfy procedural due process in every case. The fact that a procedure would pass muster under a feudal regime does not mean it gives necessary protection to all property in its modern forms. We deal here with wages — a specialized type of property presenting distinct problems in our economic system. We turn then to the nature of that property and problems of procedural due process." 395 U.S. at 340, 89 S.Ct. at 1822. The Court proceeded to analyze some of the hardships posed by the garnishment of wages under the Wisconsin statute and concluded that such garnishment amounted to a "taking" of property which, absent notice and prior hearing, violated the fundamental principles of due process. The Court pointed out that in some "extraordinary situations" such a "taking" in the absence of notice and prior hearing might be countenanced. However, since the Wisconsin statute permitting summary seizure of wages was not restricted to "extraordinary situations," the Court declared it unconstitutional. The significance of Sniadach is that it is the first case in which the Supreme Court has held that due process requires a prior hearing even when the "taking" is relatively brief and an eventual hearing is guaranteed. The Supreme Court, 1968 Term, 83 Harv.L.Rev. 7, 114 (1969). However, the majority opinion[2] left open the question of whether pre-judgment garnishment of property other than wages would amount to a "taking" and necessitate a prior hearing. Recent federal and state court decisions on this question are in conflict.[3] But it seems to us that Sniadach certainly covers any pre-judgment summary seizure of a "specialized type of property" which may impose a great hardship on an alleged debtor. Laprease v. Raymours Furniture Co., 315 F.Supp. 716, 722 (N.D.N.Y.1970) (three-judge court). See also Brunswick Corp. v. J & P, Inc., 424 F.2d 100, 105 (10th Cir. 1970); Jernigan v. Economy Exterminating Co., 327 F.Supp. 24, 30 (N.D.Ga. 1971) (three-judge court); Fuentes v. Faircloth, 317 F.Supp. 954 (S.D.Fla. 1970) (three-judge court), prob. juris. noted, 401 U.S. 906, 91 S.Ct. 893, 27 L. Ed.2d 804 (1971). We conclude that the property garnished in this case — funds set aside for college tuition — is a "specialized type," the summary seizure of which could and did impose a great hardship on an alleged debtor. We further conclude that the Georgia law providing for pre-judgment garnishment does not restrict the summary seizure of this property to "extraordinary situations." Accordingly, we hold only that *901 the portion of Georgia law which permits pre-judgment garnishment of funds set aside for college tuition without notice and prior hearing is unconstitutional. Sniadach v. Family Finance Corp., supra. We turn first to the nature of the property involved in this case. At a hearing held in this court on Clark's motion to vacate the order granting Aaron leave to proceed in forma pauperis, it was established that approximately $130 of the $145 Aaron had on deposit at the C & S bank came from his aunt who designated its use for college tuition. The balance of the money represented Aaron's earnings from temporary employment during the Christmas recess and was also to have been used for college tuition. These funds, therefore, bore a resemblance to trust funds created to provide a beneficiary with a college education. We may take judicial notice of the fact that many Americans consider a college education as important as primary and secondary education. Some consider it an absolute necessity of life. Unquestionably, a college degree has become a prerequisite for a variety of jobs and professions and people unwilling or unable to secure other types of employment often depend upon that degree for economic survival. In view of this we believe that funds set aside for college tuition constitute the "specialized type of property" to which Sniadach certainly speaks. Although Georgia law provides the alleged debtor with the opportunity to dissolve a garnishment by posting a double bond, Ga.Code Ann. § 46-402 (1965), Aaron was and is a pauper and he could not make use of this provision. Deprived by the garnishment of access to the funds set aside for tuition for the upcoming college quarter, Aaron was faced with the immediate prospect of expulsion. That might have jeopardized his entire college career. Indeed, it was for this very reason that the court issued a temporary restraining order. It is apparent to us that the summary seizure of the tuition money imposed a great hardship on Aaron, as it would on any college student summarily deprived of funds needed shortly for tuition payments. That leaves only the question of the breadth of the Georgia statutes. If Georgia law had restricted the summary seizure of tuition money to "extraordinary situations," it might well have withstood the scrutiny of Sniadach. However, Ga.Code Ann. §§ 46-101, 46-102 are not so restricted. It is true that a creditor who wishes to summarily seize tuition money must sign an affidavit stating, among other things, that he has "reason to apprehend the loss of said sum or part thereof unless process of Garnishment issues." But these words are printed on the standard affidavit form used by defendant Austin; a creditor need only fill in the alleged debtor's name, the amount of the alleged debt, and the date, and sign the form. He is not required to allege any specific facts to support his apprehension and the veracity of his affidavit is not tested by any judicial officer. We do not believe the Georgia statutes are drawn narrowly enough so that the summary seizure of funds set aside for college tuition can be undertaken only in "extraordinary situations." In sum, we declare that those provisions of Ga.Code Ann. §§ 46-101, 46-102 which permit the pre-judgment garnishment of funds set aside for college tuition are unconstitutional in that they violate the Fourteenth Amendment by depriving plaintiff and others similarly situated[4] of property without due process of law. Defendants are therefore *902 permanently enjoined from implementing or enforcing in any manner those provisions of Ga.Code Ann. §§ 46-101, 46-102[5] which permit the pre-judgment garnishment of funds set aside for college tuition. It is so ordered. NOTES [1] Section 46-101: "In cases where suit shall be pending, or where judgment shall have been obtained, the plaintiff shall be entitled to the process of garnishment under the following regulations: Provided, however, no garnishment shall issue against the daily, weekly or monthly wages of any person residing in this State until after final judgment shall have been had against said defendant: Provided, further, that the wages of a share cropper shall also be exempt from garnishment until after final judgment shall have been had against said share cropper: Provided, further, that nothing in this section shall be construed as abridging the right of garnishment in attachment before judgment is obtained." Section 46-102: "The plaintiff, his agent, or attorney at law shall make affidavit before some officer authorized to issue an attachment, or the clerk of any court of record in which the said garnishment is being filed or in which the main case is filed, stating the amount claimed to be due in such action, or on such judgment, and that he has reason to apprehend the loss of the same or some part thereof unless process of garnishment shall issue, and shall give bond, with good security, in a sum at least equal to double the amount sworn to be due, payable to the defendant in the suit or judgment, as the case may be, conditioned to pay said defendant all costs and damages that he may sustain in consequence of suing out said garnishment, in the event that the plaintiff shall fail to recover in the suit, or it shall appear that the amount sworn to be due on such judgment was not due, or that the property or money sought to be garnished was not subject to process of garnishment. No person shall be taken as security on the bond who is an attorney for the plaintiff or a nonresident unless the nonresident is possessed of real estate in the county where the garnishment issues of the value of the amount of such bond." [2] The concurring opinion of Justice Harlan emphasized that the property of which Sniadach had been deprived was the use of the garnished portion of her wages. He felt that this deprivation could not be characterized as de minimis and that as a result Sniadach should have been accorded the usual elements of procedural due process. Sniadach v. Family Finance Corp., supra, at 342, 89 S.Ct. 1820 (concurring opinion). Justice Harlan's emphasis on "use" as the property whose summary seizure necessitates a prior hearing may well represent a broader view than that adopted by the majority opinion. See Lebowitz v. Forbes Leasing & Finance Corp., 326 F.Supp. 1335, 1345, n. 57 (E.D.Pa.1971). [3] Compare Randone v. Appellate Dept. of the Superior Court of Sacramento County, 5 Cal.3d 536, 96 Cal.Rptr. 709, 488 P.2d 13 (1971); Jones Press, Inc. v. Motor Travel Ser., 286 Minn. 205, 176 N.W.2d 87 (1970); Larson v. Fatherston, 44 Wis.2d 712, 172 N.W.2d 20 (1969) (applying Sniadach broadly to all property), with Epps v. Cortese, 326 F.Supp. 127 (E.D.Pa.1971) (three-judge court), prob. juris. noted, 402 U.S. 994, 91 S.Ct. 2185, 29 L.Ed.2d 159 (1971); Reeves v. Motor Contract Co. of Georgia, 324 F.Supp. 1011 (N.D.Ga.1971) (three-judge court); Black Watch Farms, Inc. v. Dick, 323 F.Supp. 100 (D.Conn.1971); Termplan, Inc. v. Superior Court, 105 Ariz. 270, 463 P.2d 68 (1969) (restricting Sniadach to wages). See Lebowitz v. Forbes Leasing & Finance Corp., supra; Klim v. Jones, 315 F.Supp. 109 (N.D.Cal.1970). [4] In his complaint plaintiff described the class he sought to represent as all those persons who now have or will have their property summarily seized before judgment pursuant to Ga.Code Ann. §§ 46-101, 46-102. In view of the approach we have taken in this case the class shall be restricted to all those persons who now have or will have funds set aside for college tuition which are being or will be summarily seized pursuant to Ga.Code Ann. §§ 46-101, 46-102. Rule 23(c), (d), Fed.R. Civ.P. [5] We express no views on the constitutionality of those provisions of Ga.Code Ann. §§ 46-101, 46-102 which permit the pre-judgment garnishment of property other than "specialized types," the summary seizure of which may impose great hardships on an alleged debtor, such as funds set aside for college tuition or wages (Reeves v. Motor Contract Co. of Georgia, supra). We note in passing that defendant Austin required Clark to swear in the affidavit for garnishment that the property he wished garnished was not wages. If this is now standard practice throughout Georgia, the constitutional infirmity in the Georgia pre-judgment garnishment laws pointed out by this court in Reeves has been overcome. Such a corrective procedure, among others, might well be adopted to meet the constitutional infirmity raised in the instant case.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2340682/

224 Md. 485 (1961) 168 A.2d 382 SHIELDS v. STATE [No. 186, September Term, 1960.] Court of Appeals of Maryland. Decided March 16, 1961. The cause was argued before BRUNE, C.J., and HENDERSON, HAMMOND, HORNEY and MARBURY, JJ. William T. Winand, Jr., for appellant. James H. Norris, Jr., Special Assistant Attorney General, with whom were C. Ferdinand Sybert, Attorney General, Saul A. Harris and Charles E. Moylan, Jr., State's Attorney and Assistant State's Attorney, respectively, of Baltimore City, on the brief, for appellee. PER CURIAM: The appellant, Nathaniel Shields, was charged in the first count of the indictment in this case with assault with intent to kill, and in the second count with assault and battery. He was tried in the Criminal Court of Baltimore and was found by the jury not guilty on the first count but guilty on the second. He had a long record of convictions involving crimes of violence and was sentenced to eight years' imprisonment. On this appeal he challenges the sufficiency of the evidence to support his conviction and he attacks the sentence as cruel and unusual. The pertinent facts are brief. Nathaniel Shields, aged 65, and his brother, William H. Shields, who lived together in a room which they rented in Baltimore, engaged first in a *487 drinking bout and then in two fights in April, 1960. The first fight occurred on the first floor of the house where they lived when William (who also has something of a criminal record) attacked Nathaniel with a knife. A woman friend of the landlady tried to separate the brothers and got cut for her efforts. Nathaniel then took her to a hospital, returned to the house and went upstairs to change his clothes. As he did so, he called to the landlady to lock the door; but before she could do so, William, who had gone out, re-entered the house and started up the stairs. Nathaniel met him at the head of the stairs and this time Nathaniel cut William with a razor. It is not shown that William had a knife in this fight, nor does the record clearly show that he did not. After this fight William was taken to a hospital. Nathaniel's defense was self-defense. Whether the defendant acted in self-defense or otherwise was a proper matter for determination by the jury on the testimony in this case. There is no exception to the court's charge on this subject, which submitted this issue for the jury's determination. There was no error in denying the appellant's motion for a directed verdict. We also find unsustainable the appellant's contention that the sentence was cruel and unusual and hence invalid. Heath v. State, 198 Md. 455, 466-467, 85 A.2d 43; Roberts v. Warden, 206 Md. 246, 111 A.2d 597; Kirby v. State, 222 Md. 421, 160 A.2d 786. The appellant filed a motion, pro se, in the trial court to vacate the judgment, which was denied. He sought to appeal from the order denying the motion and the State moved to dismiss the appeal from that order. Since such an order is no longer appealable (as the appellant's counsel concedes), at the time of the argument we granted the State's motion. Code (1960 Cum. Supp.), Art. 27, § 645 A (b); Brady v. State, 222 Md. 442, 160 A.2d 912. As to the matters properly before this court on appeal the judgment is affirmed. Judgment affirmed.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2341688/

5 F. Supp. 2d 611 (1998) Vashti LOVE, et al., Plaintiffs, v. CITY OF CHICAGO BOARD OF EDUCATION, et al., Defendants. No. 97 C 8786. United States District Court, N.D. Illinois, Eastern Division. May 28, 1998. *612 Gerald A. Goldman, Arthur R. Ehrlich, Jonathan C. Goldman, Goldman & Ehrlich, Chicago, IL, for Plaintiffs. Marilyn F. Johnson, Chicago Bd. of Educ., Chicago, IL, Patrick Dennis Riley, Bd. of Educ. of City of Chicago, Chicago, IL, for Defendants. MEMORANDUM OPINION AND ORDER ALESIA, District Judge. Before the court is defendant Milton Albritton's motion to dismiss plaintiffs Vashti Love, Dr. Claudine Moore, and Willie Edwards' complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, the court denies defendant's motion. I. BACKGROUND Plaintiffs Vashti Love ("Love"), Dr. Claudine Moore ("Moore"), and Willie Edwards ("Edwards") have filed suit against two defendants: Milton Albritton ("Albritton") and the City of Chicago Board of Education[1] ("the Board"). All three plaintiffs are employees of Wadsworth Elementary School ("Wadsworth"). The Board is the governing body of the school district. See 105 ILL. COMP. STAT. § 5/34-1. Albritton is the Principal of Wadsworth. Plaintiffs' complaint makes the following allegations which, for the purpose of ruling on this motion, are assumed to be true. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 81 L. Ed. 2d 59 (1984). During the years of 1996 and 1997, plaintiffs made comments and complaints regarding defendants' improper operation and implementation of the special education inclusion program and the treatment and segregation of disabled students at Wadsworth. Plaintiffs also complained that Albritton was interfering with their ability and efforts to implement special education programs and to perform their duties and assignments with the learning disabled students. In response to plaintiffs' comments and complaints and in an effort to keep plaintiffs from continuing to speak out, defendants retaliated against plaintiffs. The acts of retaliation included: (1) using inaccurate and false performance evaluations or complaints; (2) reprimanding and disciplining plaintiffs; (3) canceling programs or preventing some plaintiffs from teaching summer school; (4) *613 making false accusations; and (5) encouraging other teachers and students to act hostilely toward plaintiffs. In response to defendants' alleged acts of retaliation, plaintiffs filed a three-count complaint in this court, alleging that defendants' conduct violated 42 U.S.C. § 1983. Count I of the complaint is Love's claim against defendants; Count II is Moore's claim against defendants; and Count III is Edwards' claim against defendants.[2] The court has subject matter jurisdiction over this case pursuant to 28 U.S.C. § 1331. This matter is currently before the court on defendant Albritton's motion to dismiss the case pursuant to Federal Rule of Civil Procedure 12(b)(6). Albritton argues that plaintiffs have failed to state a claim because they have failed to allege that their speech was constitutionally protected. II. DISCUSSION A. Standard for deciding a Rule 12(b)(6) motion to dismiss When deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Cromley v. Board of Educ. of Lockport, 699 F. Supp. 1283, 1285 (N.D.Ill.1988). If, when viewed in the light most favorable to the plaintiff, the complaint fails to state a claim upon which relief can be granted, the court must dismiss the case. See FED. R. CIV. P. 12(b)(6); Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030, 1039 (7th Cir.1987). However, the court may dismiss the complaint only if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). B. § 1983 First Amendment retaliation claims In the complaint, each of the plaintiffs alleges that defendants violated § 1983 by retaliating against plaintiffs for exercising their First Amendment rights. Albritton has moved to dismiss each of the claims, arguing that plaintiffs have failed to allege that their speech was constitutionally protected. For the sake of clarity, the court's opinion on this issue will be in four parts. Part 1 lays out the general law that the court must apply in analyzing whether plaintiffs have stated a § 1983 First Amendment retaliation claim. Part 2 applies that law to Love's claim against defendants. Part 3 applies that law to Moore's claim against defendants. Finally, Part 4 applies that law to Edwards' claim against defendants. 1. The law governing a § 1983 First Amendment retaliation claim To state a claim for relief under section 1983, the plaintiff must allege (1) that the defendants deprived the plaintiff of a federally protected right and (2) that the defendant acted under color of state law. Reed v. City of Chicago, 77 F.3d 1049, 1051 (7th Cir.1996). In this case, Albritton does not argue that plaintiffs have not alleged that defendants acted under color of state law. Albritton's only argument is that plaintiffs have not alleged that defendants deprived plaintiffs of a federally protected right. The court, therefore, limits its discussion to that issue. In their complaint, plaintiffs allege that defendants violated their First Amendment rights by retaliating against them for engaging in constitutionally protected speech. In order to state a § 1983 First Amendment retaliation claim, the plaintiff must allege (1) that the speech in which the plaintiff engaged was constitutionally protected under the circumstances and (2) that the defendant retaliated against the plaintiff because of the plaintiff's speech. Gustafson v. Jones, 117 F.3d 1015, 1018 (7th Cir.1997); Barkoo v. Melby, 901 F.2d 613, 617 (7th Cir.1990). The plaintiff does not satisfy the above two requirements by including conclusory allegations in the complaint; rather, the *614 plaintiff must allege facts sufficient to show that the above two requirements are satisfied. See Gustafson, 117 F.3d at 1018-19; Caldwell v. City of Elwood, 959 F.2d 670, 672 (7th Cir.1992). In this case, Albritton does not argue that plaintiffs have not alleged that defendants took the alleged actions because of plaintiffs' speech. Albritton only argues that plaintiffs have not adequately alleged that their speech was constitutionally protected. This opinion, therefore, limits itself to that issue. Determining whether a plaintiff's speech is constitutionally protected requires the court to make a two-part determination. See Khuans v. School Dist. 110, 123 F.3d 1010, 1014 (7th Cir.1997). The court first must determine whether the plaintiff's speech involves a matter of public concern. Id.; Breuer v. Hart, 909 F.2d 1035, 1037 (7th Cir.1990). If the speech does involve a matter of public concern, the court must conduct a balancing test to determine whether the government's interest, as an employer, in providing services efficiently outweighs the plaintiff's interest in expressing himself. Khuans, 123 F.3d at 1015. To determine whether the plaintiff's speech involved a matter of public concern, the court must examine the content, form, and context of the speech. Id. at 1014. Content is the most important factor. Id.; Breuer, 909 F.2d at 1039. Speech on a matter of public concern is speech which relates to a matter of political, social, or other concern of the community. Connick v. Myers, 461 U.S. 138, 146, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983); Khuans, 123 F.3d at 1014-15. Speech which is centered on a personal dispute or grievance with the employer is not speech on a matter of public concern. Campbell v. Towse, 99 F.3d 820, 827 (7th Cir.1996). However, the mere fact that the plaintiff has a personal stake in expressing his views does not remove the plaintiff's expression from First Amendment protection. Id. If the speech does not involve a matter of public concern, the defendant's actions are not subject to judicial review. Breuer, 909 F.2d at 1037. If the speech is on a matter of public concern, the court must conduct a balancing test to determine whether "the employee's interest in expressing herself on this matter ... [is] outweighed by any injury the speech could cause to the interest of the State, as an employer, in promoting the efficiency of the public services that it performs through its employees." Waters v. Churchill, 511 U.S. 661, 668, 114 S. Ct. 1878, 128 L. Ed. 2d 686 (1994); see also Khuans, 123 F.3d at 1015. To conduct the balancing test, the court must determine whether the public employer has shown a convincing reason to forbid the speech. Gustafson, 117 F.3d at 1019. Factors the court should consider when attempting to arrive at a proper balance between the employee's and the employer's competing interests are: (a) whether the speech impaired discipline by superiors or harmony among co-workers; (b) whether the speech had a detrimental impact on close working relationships for which personal loyalty and confidence are necessary; (c) whether the speech impeded the performance of the speaker's duties; and (d) whether the speech interfered with the regular operation of the enterprise. Rankin v. McPherson, 483 U.S. 378, 388, 107 S. Ct. 2891, 97 L. Ed. 2d 315 (1987); see also Campbell, 99 F.3d at 829; Breuer, 909 F.2d at 1039-40. The court must not consider the factors in a vacuum but must consider the factors in "the context in which the underlying dispute arose." Campbell, 99 F.3d at 820. It will often be impossible for the court to conduct the balancing test when analyzing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) because it is not the plaintiff's burden to plead the employer's possible justifications and the reasons why those justifications are not convincing. See Gustafson, 117 F.3d at 1019 (explaining that it is the defendant's burden to raise justification as an affirmative defense). However, there are cases where the plaintiff pleads himself out of court by pleading facts sufficient to show that the employer's interests would outweigh the employee's interests. Id. *615 2. Count I — Love's claim against defendants The court first addresses Count I, which is Love's claim against defendants. In addition to the general allegations recited above, see supra Part I, Count I makes the following specific allegations: From October of 1994 through July of 1997, Love made specific complaints verbally and in writing regarding defendants' failure to implement the special education inclusion program and Albritton's active opposition to these programs. In retaliation and in an effort to keep Love from speaking out, defendants (1) encouraged staff members to insult, intimidate, and verbally attack Love at meetings; (2) encouraged teachers and students to harass and insult Love; (3) falsely criticized and documented Love after a classroom visitation; (4) interfered with Love's ability to administer the I.T.B.S. test in May of 1997; (5) threatened her summer school employment; (6) improperly lowered her performance rating during June of 1997; (7) removed Love from the Upper Division Inclusion Program in June of 1997; and (8) issued a tardy report which falsely accused Love of numerous incidents of tardiness. The court finds that a reasonable inference from Love's allegations is that her speech involved a matter of public concern. The implementation and operation of the inclusion program at Wadsworth is "undoubtedly a question of public importance." See Wales, 120 F.3d at 84; see also Jackson v. Chicago Sch. Reform Bd. of Trustees, No. 96 C 4277, 1997 WL 548555, at *3 (N.D.Ill. Sept.3, 1997) (explaining that "courts have been much more willing to grant First Amendment protection to complaints by public employees that arise not from an individual dispute but from a desire to reform the system"). It is true that Love alleges that her speech included comments and complaints regarding Albritton's opposition to the inclusion programs. However, a reasonable inference from this allegation is that Love was speaking out about Albritton's actions because they were affecting the inclusion program and not because they were affecting her personally. The court also finds that Love has not pleaded herself out of court by including facts which would show that Love's interest in expressing herself was outweighed by any injury caused to defendants' interests as an employer. It is true that Love alleges that defendants encouraged staff members "to insult, intimidate, and verbally attack" her at meetings. However, while there was allegedly a disruption at the school meetings, it was a disruption caused not by Love's alleged speech, but a disruption caused by defendants' reaction to Love's speech. It may be that defendants were entitled to take whatever action they did in response to Love's speech; however, the court simply cannot make that determination at this point. In sum, the court finds that Love's allegations are sufficient to withstand Albritton's motion to dismiss. A reasonable inference from the allegations is that Love's speech was constitutionally protected. It would be premature for the court to find otherwise. Accordingly, the court denies Albritton's motion to dismiss Count I of plaintiffs' complaint. 3. Count II — Moore's claim against defendants The court next addresses Count II, which is Moore's claim against defendants. In addition to the general allegations set forth above, see supra Part I, Count II makes the following specific allegations: In February of 1995, Moore spoke out against Albritton at one of the Board's open meetings about his treatment of Moore and the other plaintiffs. In March of 1995, Albritton gave Moore a warning resolution and lowered her performance rating in violation of Board procedures. In May of 1996, Moore notified the Board about Albritton's improper participation in the Local School Council election. In June of 1996, defendants suspended Moore for five days and improperly lowered her performance rating. In May of 1997, Moore spoke out about problems and wrongdoing at the Wadsworth Child Parent Center. Albritton retaliated against Moore by closing her position and lowering her evaluation by fabricating nineteen alleged weaknesses in Moore's performance. On June 5, *616 1997, Moore spoke out at an open meeting with the Board about problems with the inclusion program at Wadsworth. In August of 1997, Albritton falsely accused her of being tardy and issued a tardy report. Viewing Moore's allegations in total, the court finds Moore has sufficiently alleged that her speech involved a matter of public concern. As stated above, the implementation and operation of the inclusion program at Wadsworth is "undoubtedly a question of public importance." See Wales, 120 F.3d at 84; see also Jackson, 1997 WL 548555, at *3. It is true that Moore alleges that she spoke out in February of 1995 at one of the Board's open meetings about the way that Albritton had treated Moore and the other plaintiffs. That allegation standing alone is insufficient to show that Moore's speech involved a matter of public concern. However, the balance of Moore's allegations relate to the wrongdoing that was allegedly occurring at Wadsworth. In addition, Moore's speech took place at open board meetings. Thus, it is the allegations taken as a whole which allow the reasonable inference that Moore's speech concerned a matter of public concern and not simply a personal dispute between her and defendants. The court also finds that Moore has not pleaded herself out of court by including facts which would show that Moore's interest in expressing herself was outweighed by any injury caused to defendants' interests as an employer. There is nothing in Moore's allegations from which the court can infer that Moore's speech impaired discipline, created disharmony, had a detrimental impact on any necessarily confidential relationships, affected Moore's performance, or interfered with the regular operation of the school. It may be that defendants were entitled to take the actions that they allegedly did; however, the court cannot make that determination at this stage of the litigation. In sum, the court finds that Moore's allegations are sufficient to withstand Albritton's motion to dismiss. A reasonable inference from the allegations is that Moore's speech was constitutionally protected. It would be premature for the court to find otherwise. Accordingly, the court denies Albritton's motion to dismiss Count II of plaintiffs' complaint. 4. Count III — Edwards' claim against defendants The court next addresses Count III, which is Edwards' claim against defendants. In addition to the general allegations set forth above, see supra Part I, Count III makes the following allegations: In November of 1996, Edwards supported one of the plaintiffs at a staff meeting in voicing concerns and asking questions regarding the special education program at Wadsworth. Edwards also notified Albritton in writing about the improper treatment of some of the special education teachers at the meeting. Defendants retaliated by encouraging teachers to verbally attack Edwards and interfere with his ability to tutor some special education students. In January of 1997, Edwards submitted documentation to the Board complaining about the verbal attacks and the interference with his ability to work with the special education students. Albritton subsequently precluded Edwards from working with some students, attacked him verbally, and gave him demeaning assignments. In March of 1997, Edwards spoke with an investigator regarding problems with the special education inclusion program at Wadsworth. Defendants then reprimanded Edwards and made several false accusations about his relationship with students. Edwards' claim against defendants presents the closest question as to whether the allegations support a reasonable inference that the speech involved a matter of public concern. Edwards' allegations indicate that he spoke out about the way that he and the other plaintiffs were treated. This speech involves a personal dispute, not a matter of public concern. However, other of Edwards' allegations indicate that his speech concerned the implementation and operation of the inclusion program at Wadsworth, which is clearly a matter of public importance. Further, the personal dispute seemed to arise because Edwards voiced concerns about the inclusion program. Edwards' speech was not just complaints made to Albritton personally; rather, Edwards spoke out at open meetings *617 and with an independent investigator. Viewing these allegations in total, the court finds that Edwards has sufficiently alleged that his speech falls closer to the "public" than the "private" end of the spectrum, see Wales, 120 F.3d at 84, and, thus, that his speech involved matters of public concern. The court also finds that Edwards has not pleaded himself out of court by including facts which would show that his interest in expressing himself was outweighed by any injury caused to defendants' interests as an employer. There is nothing in Edwards' allegations from which the court can infer that Edwards' speech impaired discipline, created disharmony, had a detrimental impact on any necessarily confidential relationships, affected Edwards' performance, or interfered with the regular operation of the school. It may be that defendants were entitled to take the actions that they allegedly did; however, the court cannot make that determination at this stage of the litigation. In sum, the court finds that Edwards' allegations are sufficient to withstand Albritton's motion to dismiss. A reasonable inference from the allegations is that Edwards' speech was constitutionally protected. It would be premature for the court to find otherwise. Accordingly, the court denies Albritton's motion to dismiss Count III of plaintiffs' complaint. III. CONCLUSION For the foregoing reasons, the court denies defendant Milton Albritton's motion to dismiss plaintiffs' complaint. Defendants are given until June 11, 1998 to file an answer to plaintiffs' complaint. NOTES [1] Plaintiffs named the "City of Chicago Board of Education" as a defendant. However, the "Chicago School Reform Board of Trustees" is the proper name of this defendant. 105 ILL. COMP. STAT. § 5/34-1. [2] Each of the individual counts contains allegations of what the particular plaintiff's speech was and what actions were taken against that plaintiff. For the sake of brevity and clarity, the court will address those specific allegations in the context of examining whether that plaintiff has stated a § 1983 First Amendment retaliation claim. See infra Part II.B.2-4.

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296 A.2d 173 (1972) Maurice VALENTINO, Appellant, v. UNITED STATES, Appellee. No. 6277. District of Columbia Court of Appeals. Argued August 9, 1972. Decided October 31, 1972. Bernard W. Kemp, Washington, D. C., appointed by this court, for appellant. Thomas H. Queen, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and Peter C. Schaumber, Asst. U. S. Attys., were on brief, for appellee. Before REILLY, Chief Judge, and KELLY and PAIR, Associate Judges. PER CURIAM: This is an appeal from a conviction in a jury-waived trial for attempted burglary in the second degree (D.C.Code 1967, §§ 22-103, 22-1801(b) (Supp. V, 1972)). Appellant contends that the trial court erred in denying his motions for acquittal and to suppress certain evidence. The principal prosecution witness was a special police officer who testified that he had been assigned to guard a two-story building at 630 O Street, N.W., which contained some office equipment owned by the District government. The building was under guard because of a previous effort to break into it from the second floor of the adjoining vacant building at 632 O Street. Before going on duty at midnight the officer entered No. 632 and inspected the place where the break-in had been attempted. He noticed that some bricks contiguous to the upstairs room on that side of the party wall had been removed. The officer also testified to the following occurrences: Several hours later, while on duty at No. 630, he heard banging noises coming from the other side of the party wall adjacent to the second floor. Going outside to investigate, he saw two men who had been standing in the street, start to walk away, singing loudly. He also observed a moving figure behind a second floor window of the building next door, and called up, telling the person inside to come *174 down. Appellant emerged, explained that he had gone into the empty building to look for boxes, but had not heard a noise. The officer flagged down a police car and, together with appellant and three Metropolitan policemen, went upstairs to the second floor of the empty building, discovered that the hole had been enlarged since his midnight visit, and that on the floor there were tools and a quantity of dirt. He recalled that appellant's pants were very dirty. The testimony of this witness was corroborated by one of the police officers, who had arrived on the scene and accompanied the other officers and appellant on the revisit to the second floor. He testified that after arresting appellant he requested him to turn his trousers over to him so that the dust on the cloth could be matched against the dust in the broken wall. The officer arranged to have another pair of trousers brought to him and appellant changed into them in a police van prior to being taken to the precinct station. At trial, the pants appellant had been wearing when apprehended were identified and offered, the witness describing the dust on their surface as the same as the dust of the brick rubble found on the floor. Appellant objected to this evidence being received but the court, treating the objection as a motion to suppress, overruled it. At the conclusion of the Government's case, a motion for acquittal was denied. Appellant did not take the stand. After reviewing the record and briefs, we have concluded, contrary to appellant's contentions, that the trial court did have sufficient evidence before it to decide that appellant was guilty beyond a reasonable doubt. Hopkins v. United States, D.C.App., 274 A.2d 418 (1971); Hebble v. United States, D.C.App., 257 A.2d 483 (1969); Adams v. United States, D.C. App., 245 A.2d 640 (1968). Appellant is clearly mistaken in his assertion that there was no evidence in the record with respect to the ownership of the premises involved. Moreover, there was no error in the denial of the motion to suppress, for it is fundamental that as an incident of arrest based on probable cause, the police may seize items of evidence of the crime which are found on the arrestee, Warden v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967). We reject appellant's contention that the seizure of the challenged exhibit was analogous to cases where forcible stomach pumping, blood sampling, and the like, have been condemned by the courts. Affirmed.

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377 F. Supp. 66 (1973) Gordon ARNOLD et al. v. BACHE & CO., INC., and J. Samuel Sicherman, trading as J. Samuel Sicherman & Co. Civ. No. 69-448. United States District Court, M. D. Pennsylvania. November 16, 1973. Laster, Strohl, Kane & Mattes, and T. Linus Hoban, Welles & McGrath, Scranton, Pa., for plaintiffs. James W. Scanlon, Scranton, Pa., Sullivan & Cromwell, New York City, for defendants. MEMORANDUM AND ORDER NEALON, District Judge. In a one-count complaint filed November 3, 1969,[1] plaintiffs predicated defendant's liability upon alleged violations of the Securities Exchange Act of *67 1934[2] and the Commodities Exchange Act of 1934.[3] In support of their theories of recovery, plaintiffs alleged that the business activities of Sicherman and Bache were so intertwined that Bache should bear the responsibility for any losses caused by Sicherman's fraudulent schemes. With respect to Sicherman, plaintiffs charged that he "systematically, fraudulently, and regularly embezzled and otherwise stole the monies of the plaintiffs and other members of the plaintiffs' class of customers . . ." The facts with regard to Bache are summarized in my Memorandum and Order of September 27, 1973.[4] "Plaintiffs allege that defendant Bache aided and abetted Sicherman in his illegal operation by furnishing Sicherman with various facilities customary in commodities brokerage offices and by referring to Sicherman commodities business originating in Bache's Scranton office. Plaintiffs maintain that this activity, coupled with the sharing of brokerage fees and commissions on trades placed, created a public impression of endorsement both as to the skill and integrity of Sicherman and that the operation was backed by Bache. This endorsement, plaintiffs contend, plus the failure of Bache to properly supervise the activities of Sicherman or to correct the public impression that Sicherman was in some manner connected with Bache, allowed Sicherman to obtain customers by trading on the use of Bache's established reputation, when they knew or should have known that he was engaged in illegal and fraudulent activities." That Memorandum and Order granted defendant's motion to dismiss for lack of jurisdiction over the subject matter under the Securities and Exchange Act of 1934, but denied defendant's motion to dismiss for failure to state a claim for relief under the Commodities Exchange Act of 1934. Plaintiffs now move for an entry of final judgment against themselves and an express determination that there is no just reason for delay in order that they might perfect an appeal under Rule 54, Fed.R.Civ.P. As a condition precedent to the granting of plaintiffs' motion, it must appear that there is more than one claim for relief. "The amended rule (Rule 54) does not apply to a single claim action nor to a multiple claims action in which all of the claims have been finally decided. It is limited expressly to multiple claims actions in which `one or more but less than all' of the multiple claims have been finally decided and are found otherwise to be ready for appeal."[5] The difficulty presented by plaintiffs' motion lies in determining the parameters of a claim. Prior to the 1946 amendment to Rule 54(b), it was held that "[t]he Rules make it clear that it is differing occurrences or transactions which form the basis of separate units of judicial action." Reeves v. Beardall, 316 U.S. 283, 285, 62 S. Ct. 1085, 1087, 86 L. Ed. 1478 (1942). While the approach taken in Reeves has been seriously questioned in light of the deletion of the "occurrence or transaction" language from Rule 54, Cold Metal Process Co. v. *68 United Engineering & Foundry Co., 351 U.S. 445, 452, 76 S. Ct. 904, 100 L. Ed. 1311 (1956); Campbell v. Westmoreland Farm, Inc., 403 F.2d 939, 941 n. 3 (2d Cir. 1968); it has not been entirely repudiated, Rabekoff v. Lazere & Co., 323 F.2d 865, 866 (2d Cir. 1963); RePass v. Vreeland, 357 F.2d 801, 805 n. 4 (3d Cir. 1966); Town of Clarksville, Va. v. United States, 198 F.2d 238, 240 (4th Cir. 1952). Although the basis of liability in this action arises out of a single transaction or occurrence, I need not rest my decision solely on the authority of Reeves, supra. In RePass v. Vreeland, 357 F.2d 801 (3d Cir. 1966), allegations that defendant attorneys were negligent in (1) allowing a statute of limitations to expire before commencement of suit and in (2) negligently failing to inform plaintiff of the running of the statute, were held to constitute a single claim attired in two theories of negligence. Also, in Rebekoff v. Lazere & Co., 323 F.2d 865 (2d Cir. 1963), the Court failed to find more than one claim where a trustee in bankruptcy sued to recover a preferential transfer under both federal and state law. "[A] complaint must do more than simply state alternate legal theories to set out multiple claims for relief." Rabekoff, supra, at 866. See also Backus Plywood Corp. v. Commercial Decal, Inc., 317 F.2d 339 (2d Cir. 1963); McNellis v. Merchants National Bank and Trust Co. of Syracuse, 385 F.2d 916 (2d Cir. 1967); and cf. Campbell v. Westmoreland Farm, Inc., 403 F.2d 939 (2d Cir. 1968); Rieser v. Baltimore and Ohio Railroad Company, 224 F.2d 198 (2d Cir. 1955). From a reading of the complaint, I am persuaded that this action arises out of a single "aggregate of operative facts", McNellis, supra, at 917, presented under different legal theories, RePass, supra, which may not be separately enforced, Campbell, supra, and for which only one recovery would be allowed, Rabekoff, supra. Accordingly, plaintiffs' motion for a "determination" and "direction" under Rule 54(b) is hereby denied. NOTES [1] An amended complaint was filed May 3, 1973, to include J. Samuel Sicherman, trading as J. Samuel Sicherman & Co., as a party-defendant. [2] Under the Securities Exchange Act of 1934, plaintiffs alleged that defendant Bache was a controlling person under Section 20(a), 15 U.S.C. § 78t(a), and was therefore jointly and severally liable with defendant Sicherman for alleged violation of Section 10(b), 15 U.S.C. § 78j. [3] Under the Commodities Exchange Act of 1936, plaintiffs alleged violations of §§ 4b and 4d, 7 U.S.C. §§ 6b and 6d. [4] Arnold v. Bache & Co., D.C., 377 F. Supp. 61. [5] Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 435, 76 S. Ct. 895, 899, 100 L. Ed. 1297 (1956).

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634 F.Supp. 65 (1985) SOUTHERN NEVADA SHELL DEALERS ASSOCIATION, and Ronald Bird, Lyle Brennan, Boyd Carlson, Don David, Freddie L. Funston, David Goodwin, Harry Harvey, Al Razza, Don L. Valesquez, and Clifford Zimbelman, individually, Plaintiffs, v. SHELL OIL COMPANY, a Delaware Corporation; Atlantic Richfield Company, a Delaware Corporation; Arco Petroleum Products Company, a Division of Atlantic Richfield Company, Defendants. No. CV LV 85-910 RDF. United States District Court, D. Nevada. December 30, 1985. *66 *67 Norman Ty Hilbrecht, Hilbrecht & Associates, Las Vegas, Nev., Hiram A. deFries, Robert A. Newton, Law Offices of Newton & deFries, Laguna Hills, Cal., for plaintiffs. William G. Lowerre, George A. Nachtical, Houston, Tex., Monte N. Stewart, Wright, Shinehouse & Stewart, Las Vegas, Nev., for defendant Shell Oil Co. Donald C. Smaltz, Leighton M. Anderson, Hahn Cazier & Smaltz, Los Angeles, Cal., Thomas F. Kummer, Vargas & Bartlett, Las Vegas, Nev., for defendants Atlantic Richfield Co., and Arco Petroleum Products Co. ORDER DENYING APPLICATION FOR PRELIMINARY INJUNCTION ROGER D. FOLEY, Senior District Judge. FACTUAL BACKGROUND The individual plaintiffs are franchised dealers of motor fuel products for Shell Oil Company in Las Vegas, Nevada. Plaintiff Southern Nevada Shell Dealers Association is an incorporated association consisting of a membership of the individual plaintiffs. Collectively the plaintiffs will be referred to as the dealers. The defendants are Shell Oil Company (Shell) and Atlantic Richfield Company (Arco). On August 2, 1985, Shell and Arco entered into a property exchange agreement in which Shell agreed to convey to Arco its interest in 15 service station locations in Las Vegas, Nevada in return for Arco's agreement to convey to Shell its interest in 23 service station locations in Chicago, Illinois. By letters dated August 8, 1985, Shell notified its Nevada dealers that it had decided to withdraw from the Southern Nevada market. The letter also stated that prior to September 15, 1985, Arco would offer each of the Shell dealers an opportunity to become an Arco franchisee and that, if the franchise offer were not accepted, the dealer would be required to vacate the location by 10:00 a.m., February 14, 1986. On or about August 27, 1985, Arco offered each dealer a one year trial franchise, customarily offered to new Arco franchisees. The offer was conditioned upon the lawful termination of the dealer's existing franchise with Shell and the acquisition by Arco from Shell of the station premises by October 30, 1985. The dealers rejected the one year trial franchises. On or about September 12, 1985, Arco attempted to deliver to each dealer a written offer for a three year non-trial franchise. The dealers refused to acknowledge receipt of the three year offers, and each of the dealers who had made appointments to meet with Arco representatives to discuss the offers, cancelled their appointments. Thereafter, Arco mailed the franchise offerings to each of the dealers by certified mail. Half of the dealers refused to accept delivery, from the postal carrier, of the certified mail packages. Although half of the dealers refused delivery of the three year franchise offer, this court finds, from the evidence presented, that each of the dealers were aware of the three year offer. On October 21, 1985, the plaintiffs brought this action to enjoin Shell and Arco from proceeding with the property exchange and for damages and declaratory relief. The dealers claim Shell and Arco have not complied with the Petroleum Marketing Practices Act and that the dealers are therefore entitled to a preliminary injunction preventing Shell and Arco from proceeding with the property exchange during the pendency of this action. ANALYSIS The Petroleum Marketing Practices Act (PMPA), 15 U.S.C. § 2801 et seq., governs the termination or nonrenewal of motor fuel product franchises. The provisions of the PMPA are exclusive and pre-empt all state laws regarding the termination and nonrenewal of a motor fuel product franchise unless such state laws are the same as the applicable provisions of the PMPA. *68 15 U.S.C. § 2806(a). The court's responsibility in this case is not to determine the desirability or appropriateness of the proposed exchange or to determine whether the exchange is in the best interests of the parties or the people of Nevada. The court's responsibility in this case is to determine whether Shell and Arco complied with the PMPA in connection with the property exchange agreement. Under the PMPA, a franchisor may withdraw from marketing motor fuel through retail outlets in a specific geographic market area, and thereby terminate existing franchise agreements, if the applicable requirements are complied with. Notice Section 104 of the PMPA requires a franchisor who is withdrawing from the market in a specific geographic area to give 180 days' written notice to each franchisee and the governor of each state in which the franchisor is withdrawing. The notice must contain a statement of intention to terminate the franchise and the reasons therefor. 15 U.S.C. § 2804(c). In this case Shell sent a letter to the governor and to each dealer which stated: Shell has made a determination in good faith and in the normal course of business to withdraw from the marketing of motor fuel through retail outlets in the relevant geographic marketing area in which the Location is situated. This determination is a ground for franchise termination pursuant to the provisions of the Petroleum Marketing Practices Act ("PMPA"), 15 U.S.C. § 2802(b)(2)(E). The dealers claim the notice was defective because the reasons for withdrawal were not described with sufficient specificity. However, "[t]he PMPA requires only that the franchisor articulate with sufficient particularity the basis for the decision not to renew so that the franchisee can determine his rights under the Act." Brach v. Amoco Oil Co., 677 F.2d 1213, 1226 (7th Cir.1982). In Atlantic Richfield Co. v. Brown, No. 85 C 5131 (N.D.Ill. Oct. 21, 1985) [Available on WESTLAW, DCTU database], a statement of notice with nearly identical wording as Shell's notice letter in this case was held sufficient under the PMPA. The dealers in this case have failed to show that they were unable to determine their rights under the PMPA from the information provided in the termination notice. Shell's letter to the governor and each dealer therefore satisfied the notice requirements of the PMPA. Grounds for Termination Congress passed the PMPA in part to protect "franchisees from arbitrary or discriminatory termination or non-renewal of their franchises." At the same time Congress recognized the "importance of providing adequate flexibility so that franchisors may initiate changes in their marketing activities to respond to changing market conditions and consumer preferences." S.Rep. No. 731, 95th Cong., 2d Sess. 15, 19, reprinted in 1978 U.S.Code Cong. & Ad.News at 873, 874 and 877. In accordance with such policies, the PMPA prohibits termination or nonrenewal of a motor fuel franchise agreement unless such termination or nonrenewal is based upon a ground provided by the Act. 15 U.S.C. § 2802(a), (b)(1). In pertinent part, the Act states, at 15 U.S.C. § 2802(b): (2) For purposes of this subsection, the following are grounds for termination of a franchise or nonrenewal of a franchise relationship: . . . . . (E) [A] determination made by the franchisor in good faith and in the normal course of business to withdraw from the marketing of motor fuel through retail outlets in the relevant geographic marketing area in which the marketing premises are located, if— . . . . . (iii) in the case of leased marketing premises— (I) the franchisor during the 180-day period after notification was given pursuant to section 104 [15 U.S.C. § 2804], either made a bona fide offer to sell, transfer, or assign to the franchisee such franchisor's interests in such premises, *69 or, if applicable, offered the franchisee a right of first refusal of at least 45 days duration of an offer, made by another, to purchase such franchisor's interest in such premises; or (II) in the case of the sale, transfer, or assignment to another person of the franchisor's interest in such premises in connection with the sale, transfer, or assignment to such other person of the franchisor's interest in one or more other marketing premises, if such other person offers, in good faith, a franchise to the franchisee on terms and conditions which are not discriminatory to the franchisee as compared to franchises then currently being offered by such other person or franchises then in effect with respect to which such other person is the franchisor. Shell's Good Faith The above provisions allow a franchisor to terminate a franchise if the franchisor has determined in good faith and in the normal course of business to withdraw from the market in a particular geographic area, and if the franchisor complies with the restrictions on the method of disposition as required by subsection (iii). The dealers claim that Shell's decision to withdraw was not made in good faith and was not made in the normal course of business. The dealers contend that Shell has an adequately profitable business in Southern Nevada and that Shell's decision to withdraw was motivated by a desire to circumvent Shell's existing obligations to the dealers and thereby increase its profits. The dealers place great emphasis on the point that Shell's business in Southern Nevada was not unprofitable. However, the PMPA does not require lost profits as a grounds for termination. The legislative history of the PMPA illustrates Congress' intent regarding the meaning of "good faith" and in the "normal course of business." The legislative history states: This good faith test is meant to preclude sham determinations from being used as an artifice for termination or non-renewal. The second test is whether the determination was made "in the normal course of business". Under this test, the determination must have been the result of the franchisor's normal decisionmaking process. These tests provide adequate protection of franchisees from arbitrary and discriminatory termination or non-renewal, yet avoid judicial scrutiny of the business judgment itself. Thus, it is not necessary for the courts to determine whether a particular marketing strategy, such as a market withdrawal, or the conversion of leased marketing premises to a use other than the sale or distribution of motor fuel, is a wise business decision. S.Rep. No. 731, 95th Cong., 2d Sess. 37, reprinted in 1978 U.S.Code Cong. & Ad. News 873, 896. The affidavit of J. William Schutzenhofer, Shell's vice president of marketing, demonstrates that Shell's decision to withdraw from the Southern Nevada market was not a sham or artifice but was the result of Shell's normal decisionmaking process. The dealers have provided no evidence to establish that Shell's decisionmaking process was a deviation from its established policies and procedures or that the decision was arbitrary or discriminatory. The PMPA reflects an intent to allow franchisors to exercise reasonable business judgments which will not be second guessed by the courts. See Brach v. Amoco oil Co., 677 F.2d 1213, 1220 (7th 1982). Shell's decision to withdraw complies with the applicable provisions of the PMPA. The dealers also claim that Shell has not complied with 15 U.S.C. § 2802(b)(2)(E) (iii)(I). The dealers have cited Abadjian v. Gulf Oil Co., 602 F.Supp. 874 (C.D.Calif. 1984), for the proposition that § 2802(b)(2) (E)(iii)(I) requires Shell to either give the dealers a bona fide offer to purchase Shell's interest in each of the respective service station premises, or a right of first refusal to accept the offer Shell made to Arco. In Abadjian, the court said at 881: "Under the PMPA, a franchisor's withdrawal from a relevant geographic market can amount to a termination [or] non-renewal *70 of the franchise agreement that triggers both notice and first refusal rights for [franchisees]." However, in Atlantic Richfield Co. v. Brown, supra, with respect to the Abadjian decision, the court stated: The court's oversimplification of the rights accorded a franchisee upon withdrawal by its franchisor from the relevant geographic market can be attributed to the fact that the meaning of section 2802(B)(2)(E) was not before the court. The Abadjian court did not hold that the terminated franchisees must be granted rights of first refusal; such a holding would be at odds with the plain language of the PMPA. Brown at 10. The use of the word "or" between subclauses I and II of § 2802(b)(2)(E)(iii) clearly indicates that a franchisor is not required to proceed under subclause I but may proceed under subclause II at his option. In view of the plain wording of the statute, this court rejects the dicta in Abadjian and holds that the PMPA does not require a franchisor to give each franchisee a right of first refusal or a bona fide offer to purchase the franchisor's interest in the premises, if the franchisor otherwise complies with subclause II of § 2802(b)(2)(E)(iii). Because Shell elected to proceed under subclause II the dealers were not entitled to an offer or a right of first refusal. Arco's Good Faith When a franchisor withdraws from the market in a particular geographic area and sells, transfers or assigns his interest to another person, the franchisor may elect to proceed under subclause II of § 2802(b)(2)(E)(iii). Under subclause II the withdrawal will be allowed if "such other person offers, in good faith, a franchise to the franchisee on terms and conditions which are not discriminatory to the franchisee as compared to franchises then currently being offered by such other person or franchises then in effect and with respect to which such other person is the franchisor." The dealers claim that subclause II has not been complied with because on or about August 27, 1985, Arco offered the dealers only a one year trial franchise. The dealers claim the one year trial offer was both made in bad faith and was discriminatory as compared to franchises that Arco offers its existing franchisees. On or about September 12, 1985, Arco attempted to deliver to each dealer a three year non trial franchise. When the dealers refused to acknowledge receipt of such offers, Arco mailed the offerings by certified mail to each dealer. Shell and Arco claim the three year offers satisfied the requirements of the PMPA. The dealers claim the three year offers were untimely and claim that Arco's bad faith in first offering a one year franchise cannot be cured by the three year offers. Subclause II of § 2802(b)(2)(E)(iii) does not place a limitation on the time in which a good faith non-discriminatory offer must be made. Because there is no time limitation, this court must conclude that such offer can be made any time prior to the date the franchise is terminated. In this case the date of termination is February 14, 1986. This interpretation of subclause II is consistent with subclause I under which the franchisor could offer to sell his interest in the premises to the franchisee any time during the 180-day period after notice of termination. The dealers claim that Arco was required to make a good faith non-discriminatory offer prior to September 15, 1985, because Shell's notice of termination stated that Arco would offer each dealer an opportunity to become an Arco dealer prior to that date. The September 15, 1985, date was derived from an agreement between Shell and Arco of which the dealers were not a party. The dealers have not shown that they were damaged by Arco's failure to make the three year offers by September 15. Such a claim would be tenuous in view of the fact that the three year offers were made shortly after September 15, and the delay was caused in part by the dealers' refusal to acknowledge receipt of the offers. The *71 dealers' rights are derived from the PMPA which places no limitation on the time in which a good faith non-discriminatory offer must be made. Therefore, Arco's three year offer was timely under the PMPA. The dealers also claim that Arco's one year trial offer was discriminatory as compared to franchise offers Arco gave its existing franchisees, and that because the offer was discriminatory it was made in bad faith. The dealers claim that the PMPA does not allow a franchisor to cure his bad faith and that because the one year offers were made in bad faith the three year offers were also made in bad faith. This court cannot agree with the dealers' interpretation of the PMPA. The PMPA requires only that Arco make a good faith non-discriminatory offer. Under this court's interpretation of the PMPA, that offer can be made any time prior to the date of termination, regardless of any previous non-conforming offers. Thomas R. Murphy, Arco's region manager in charge of Southern Nevada, stated in his affidavit, that the three year franchise contracts offered to the dealers in this case were identical to Arco's franchise contracts, then in effect with its existing franchisees and that such contracts have been used exclusively by Arco since June 1984. (Murphy's declaration at 6, later converted to an affidavit.) Because Arco's three year franchise offers were not discriminatory, it is not necessary to determine whether the one year franchise offers satisfied the requirements of the PMPA. With one exception, the dealers do not otherwise challenge the three year offers as being discriminatory. They only state that it is difficult to imagine that the three year offer is comparable to Arco's existing franchises because "[p]resumably, Arco dealers have some negotiating powers and the terms and conditions of their franchise operations are determined at arms length on a case by case basis." (Dealers' reply brief at 5.) However, Thomas R. Murphy states in his supplemental affidavit that "Atlantic Richfield does not negotiate the terms and conditions of its franchise contracts with individual dealers on a case-by-case basis." (Murphy's supplemental Affidavit at 3.) Murphy's affidavit rebuts the dealers' presumption. The dealers do not otherwise challenge the three year offers as being discriminatory and the evidence presented suggests that the three year offers in this case are the same as Arco's agreements with its existing franchisees. Arco's three year offers therefore satisfied the requirements of the PMPA. The dealers put considerable emphasis upon the fact that Arco franchises are different from or inferior to their existing Shell franchises. However, this is not a consideration under the PMPA. The PMPA requires only that the franchises offered by Arco not be discriminatory as compared with Arco's existing franchises or franchises currently being offered by Arco. Certain of the dealers also indicate in their depositions that they have not received the three year offers. However, this court finds from the evidence presented that all the dealers know of the three year offers and the reason some of the dealers may not be in possession of their written offer is because of their own refusal to accept delivery of such offer. Standard for Granting a Preliminary Injunction Section 2805(b) provides that a court may grant equitable relief if necessary to remedy the effects of any failure to comply with the PMPA if the franchisee shows: 1) that the franchise has been terminated, 2) that sufficiently serious questions exist going to the merits to make such questions a fair ground for litigation, and 3) the court determines that, on balance, the hardships imposed upon the franchisor by the issuance of the injunctive relief will be less than the hardships imposed upon the franchisee if the injunctive relief is not granted. In this case the parties agree that the notice of termination satisfied the first requirement. It is not necessary to balance the hardships that will or will not be imposed on the parties because the dealers have failed to show that there exists sufficiently *72 serious questions going to the merits to make such questions a fair ground for litigation. Under the PMPA, a franchisor's withdrawal from marketing motor fuel in a specific geographic area is permitted if the franchisor complies with the applicable requirements of the PMPA. Under this court's interpretation of the PMPA, those requirements have been met. Sufficiently serious questions that would be fair grounds for litigation regarding whether Shell and Arco complied with the PMPA do not exist. The dealers are not entitled to a preliminary injunction. Included with each of Arco's three year franchise offers was a letter from Arco stating that if the dealer were willing to accept the offer, he should execute all copies of the agreement and return them to an Arco representative who would call on the dealer in about 15 days. Because of this litigation, there was no further effort to execute the agreements. Therefore, this court concludes that the three year offers remain open either until the date of termination of the Shell franchises or until Arco gives sufficient notice otherwise. ORDER WHEREFORE, IT IS ORDERED that plaintiff's application for a preliminary injunction is DENIED.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2633292/

129 P.3d 1263 (2006) 142 Idaho 514 STATE of Idaho, Plaintiff-Respondent, v. Thomas C. DICKERSON, Defendant-Appellant. No. 30367. Court of Appeals of Idaho. February 3, 2006. *1264 Molly J. Huskey, State Appellate Public Defender; Eric D. Fredericksen, Deputy Appellate Public Defender, Boise, for appellant. Eric D. Fredericksen argued. Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued. LANSING, Judge. This case involves the interpretation and the constitutionality of former Idaho Code § 18-8304, a component of the Sex Offender Registration Notification and Community Right-to-Know Act ("the Act"), as it existed in 2003. Thomas C. Dickerson contends that the charge against him for failure to register as a sex offender was improper because he was not required to register under the provisions of I.C. § 18-8304. Alternatively, he argues that if the statute is interpreted to have imposed a registration requirement upon him, then it violated his constitutional right to travel guaranteed by the Fourteenth Amendment. We hold that I.C. § 18-8304(1)(b) imposed a registration requirement upon Dickerson at the time he was charged but that the statute, as then written, was constitutionally unsound as applied to him. I. BACKGROUND In 1990, in the state of Washington, Dickerson was convicted of child rape in the second degree. In 2002, he moved to Idaho *1265 and did not register as a sex offender. In May 2003, Dickerson was charged with failure to register as a sex offender, in violation of the former I.C. §§ 18-8304 and 18-8307. He filed a motion to dismiss the charge, asserting that he was not within the class of persons required to register and that if the Act was interpreted to encompass him, it was unconstitutional in its application to interstate travelers. The district court denied Dickerson's motion. Thereafter, Dickerson entered a conditional guilty plea, reserving the right to appeal the denial of his motion to dismiss. II. ANALYSIS A. Dickerson Was Required to Register as a Sex Offender According to the Terms of Former I.C. § 18-8304(1)(b). At the time of Dickerson's alleged violation, I.C. § 18-8307(1)(a) provided that within ten days of coming into any Idaho county to establish a residence or domicile, an "offender" must register with the sheriff of that county. "Offender" was defined as "an individual convicted of an offense listed and described in section 18-8304, Idaho Code, or a substantially similar offense under the laws of another state or in a federal, tribal or military court or the court of another country." I.C. § 18-8303(8). The then-effective version of Idaho Code § 18-8304 provided, in relevant part: (1) The provisions of this chapter shall apply to any person who: (a) On or after July 1, 1993, is convicted of the crime, or an attempt, a solicitation, or a conspiracy to commit a crime provided for in [various Idaho Code sections defining sex offenses]. (b) Enters the state on or after July 1, 1993, and who has been convicted of any crime, an attempt, a solicitation or a conspiracy to commit a crime in another state, territory, commonwealth, or other jurisdiction of the United States, including tribal courts and military courts, that is substantially equivalent to the offenses listed in subsection (1)(a) of this section. (c) Pleads guilty to or has been found guilty of a crime covered in this chapter prior to July 1, 1993, and the person, as a result of the offense, is incarcerated in a county jail facility or a penal facility or is under probation or parole supervision, on or after July 1, 1993. 2001 Idaho Sess. Laws, ch. 194, § 2, pp. 660-61.[1] The characteristic of this statute that gives rise to this appeal is the distinction between the time period under subsection (a) for which convictions in the state of Idaho will require registration and the time period under subsection (b) for convictions committed elsewhere by someone who enters the state after July 1, 1993. By the statute's literal terms, under subsection (a) a person convicted of one of the designated offenses in Idaho was required to register only if the offense occurred on or after July 1, 1993, but under subsection (b), anyone who had ever been convicted of an equivalent crime in any other jurisdiction had to register if he or she moved to this state on or after July 1, 1993. *1266 Dickerson was charged under subsection (b) because he moved to the state of Idaho after July 1, 1993, having been convicted of a sex offense in 1990 in the state of Washington. Dickerson argues that as a matter of statutory interpretation, he was not required to register as a sex offender because the same time strictures in subsection (a) that triggered the registration requirement for an Idaho conviction should be deemed incorporated into subsection (b) for foreign convictions. He argues that the language of subsection (b) requiring the offense to be "substantially equivalent to the offenses listed in subsection (1)(a) of this section" incorporated not only the nature of the offense, but also the qualification that the conviction occur "[o]n or after July 1, 1993."[2] The interpretation of a statute is an issue of law over which this Court exercises free review. State v. Parker, 141 Idaho 775, 777, 118 P.3d 107, 109 (2005); State v. Yager, 139 Idaho 680, 689, 85 P.3d 656, 665 (2004). If the statutory language is unambiguous, "`the clearly expressed intent of the legislative body must be given effect, and there is no occasion for a court to consider rules of statutory construction.'" Garza v. State, 139 Idaho 533, 536, 82 P.3d 445, 448 (2003) (quoting Payette River Property Owners Ass'n v. Board of Comm'rs of Valley County, 132 Idaho 551, 557, 976 P.2d 477, 483 (1999)). The plain meaning of a statute therefore will prevail unless clearly expressed legislative intent is contrary or unless plain meaning leads to absurd results. Garza, 139 Idaho at 536, 82 P.3d at 448. Where the statute is ambiguous, we attempt to ascertain legislative intent, and in construing the statute we may examine the language used, the reasonableness of the proposed interpretations, and the policy behind the statute. Kelso & Irwin, P.A. v. State Ins. Fund, 134 Idaho 130, 134, 997 P.2d 591, 595 (2000). See Garza, 139 Idaho at 535-36, 82 P.3d at 447-48. Courts may not, however, under the guise of judicial construction, rewrite a statute to save it from constitutional infirmity. See Powers v. Canyon County, 108 Idaho 967, 972, 703 P.2d 1342, 1347 (1985); State v. Lindquist, 99 Idaho 766, 770, 589 P.2d 101, 105 (1979). Here, we find no ambiguity in the statutory language. Subsection (a) clearly states that if the conviction was for a violation of Idaho law, the registration requirement applies only to convictions occurring on or after July 1, 1993, but subsection (b) contains no such temporal limitation for convictions from another jurisdiction. It is not within our purview to add a temporal limitation to subsection (b) that the legislature did not place there. Rather, we must give effect to the clear legislative expression. If a statute as written is socially or otherwise unsound, the power to correct it is legislative, not judicial. See State v. Schwartz, 139 Idaho 360, 362, 79 P.3d 719, 721 (2003). Accordingly, we hold that the Act required Dickerson to register as a sex offender, due to his 1990 conviction in the state of Washington, upon moving to Idaho after July 1, 1993. B. Former I.C. § 18-8304(1)(b) Violates the Fourteenth Amendment Having determined that the former I.C. § 18-8304(1)(b) applied to Dickerson, we must address Dickerson's constitutional challenge to this statute. He contends that the disparity in the statute's treatment of in-state offenders versus those who were convicted elsewhere and subsequently moved to Idaho violated the constitutional right to travel.[3] The constitutionality of a statute is a *1267 question of law that we review de novo. State v. Hart, 135 Idaho 827, 829, 25 P.3d 850, 852 (2001). A party challenging the constitutionality of a statute must overcome a strong presumption of validity. State v. Cobb, 132 Idaho 195, 197, 969 P.2d 244, 246 (1998). The former I.C. § 18-8304(1) created a disparity between sex offenders who moved to Idaho after mid-1993 and offenders who were longer-term residents. A longer term resident with a pre-1993 conviction from Idaho or elsewhere did not have to register, while a person with such a conviction who moved to Idaho after June 1993 was required to do so, no matter how old the conviction. Anomalously, a person who had been convicted before 1993 in a foreign court (including a tribal court or federal court) while residing in Idaho did not have to register if he remained an Idaho resident, but if the individual moved out of state and subsequently returned to live in Idaho after 1993, the duty to register arose. Thus, whether the Act imposed a duty to register upon a sex offender turned upon whether and on what date the individual moved to Idaho. The United States Supreme Court has long held that the federal constitution guarantees a fundamental right to travel from one state to another. Saenz v. Roe, 526 U.S. 489, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966). The Supreme Court has described the right to travel as follows: The "right to travel" . . . embraces at least three different components. It protects the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State. Saenz, 526 U.S. at 500, 119 S.Ct. at 1525, 143 L.Ed.2d at 702. Dickerson argues that the third component of this right to travel was infringed because when he moved to Idaho, as a new citizen he was treated differently from citizens already domiciled here. Historically, when evaluating the constitutionality of laws that affect the right to travel, the Supreme Court conducted its analysis under the Equal Protection Clause of the Fourteenth Amendment. See New York v. Soto-Lopez, 476 U.S. 898, 106 S.Ct. 2317, 90 L.Ed.2d 899 (1986) (plurality opinion); Mem'l Hosp. v. Maricopa County, 415 U.S. 250, 258, 94 S.Ct. 1076, 1082, 39 L.Ed.2d 306, 314-15 (1974); Shapiro, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600. In the 1999 Saenz decision, however, the Court redirected the constitutional analysis to the Privileges and Immunities Clause. Saenz involved a California statute that limited the welfare benefits available to a person who had resided in the state for less than twelve months to the amount that the individual would have received in his or her previous state of domicile. The Court noted that this created a favored class—California citizens who had resided in the state for at least one year and new arrivals who last resided in another state that provided benefits at least as generous as California—and a disfavored class of new arrivals whose previous state provided benefits at a lower level than California, with subclasses at the different benefit levels determined by the law of the state of previous domicile. The Court held that this implicated "the right of the newly arrived citizen to the same privileges and immunities enjoyed by other citizens of the same state," a right protected not by the Equal Protection *1268 Clause, but by the Privileges and Immunities Clause of the Fourteenth Amendment. Saenz, 526 U.S. at 502, 119 S.Ct. at 1526, 143 L.Ed.2d at 703-04. The Court thereby revived the Privileges and Immunities Clause from nearly 130 years of obscurity. See id. at 511, 119 S.Ct. at 1530, 143 L.Ed.2d at 708-09 (Rehnquist, C.J., dissenting). After determining that the statute implicated the right to travel, the Court stated that to justify the law, the state of California had to demonstrate both a sound policy reason for discrimination against new arrivals and a permissible reason to apply a variety of rules within that class. The Court first held that classifications created by the California statute could not be justified by a purpose to deter welfare applicants from migrating to California. Such a purpose, the Court said, would be "unequivocally impermissible." The Court acknowledged that California had a legitimate fiscal interest in saving money allocated for welfare benefits, but rejected the notion that such a legitimate purpose could be permissibly accomplished by discrimination against newly arrived citizens, noting that the Fourteenth Amendment "does not provide for, and does not allow for, degrees of citizenship based on length of residence." Id. at 506, 119 S.Ct. at 1528, 143 L.Ed.2d at 705-06. The Court noted that California could achieve the same goal by reducing all welfare benefits by a few cents per month, and that the subclasses of newly arrived residents, who received different benefits depending on the benefits they had received in their former state, did not have any relevance to their needs for benefits or the state's interest in making an equitable allocation of the funds among its needy citizens. In concluding that the statute was unconstitutional the Court observed that while citizens of the United States have a right to choose to be citizens of any state, the states "do not have any right to select their citizens." Id. at 511, 119 S.Ct. at 1530, 143 L.Ed.2d at 708-09. While the Saenz case altered the constitutional underpinnings of the right to travel, it appears to have caused little change in the analyses traditionally employed under the Equal Protection Clause. As in equal protection analysis, the Court first examined whether the law created a classification that burdened the right to travel, and upon finding that it did, then analyzed the sufficiency of the state's justification for the law and considered whether the classification adequately advanced that state interest. Accordingly, to determine whether the former I.C. § 18-8304(1)(b) was unconstitutional as applied to persons who moved to Idaho after mid-1993, the initial question is whether that subsection creates a classification that burdens the right to travel. The United States Supreme Court has generally found classifications burdensome if they penalize migration or create fixed, permanent distinctions among citizens. Laws that have been found to penalize migration include civil service employment preferences for veterans who resided in the state when they entered military service, Soto-Lopez, 476 U.S. 898, 106 S.Ct. 2317, 90 L.Ed.2d 899; requirements for a period of residency before a person can secure a divorce in the state (although a burden, found to be constitutional), Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975); one-year residency requirements before indigents become eligible for free non-emergency medical care, Mem'l Hosp., 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306; durational residency requirements as a prerequisite to register to vote, Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); and durational residency requirements for welfare benefits, Shapiro, 394 U.S. at 624, 89 S.Ct. at 1325-26, 22 L.Ed.2d at 609. Laws that create fixed, permanent distinctions between citizens include tax exemptions for Vietnam veterans who resided in the state before a certain date, Hooper v. Bernalillo, 472 U.S. 612, 105 S.Ct. 2862, 86 L.Ed.2d 487 (1985); and variation in dividend distributions from state oil revenues based upon the number of years of residency, Zobel v. Williams, 457 U.S. 55, 102 S.Ct. 2309, 72 L.Ed.2d 672 (1982). In this case, I.C. § 18-8304(1)(b) has elements of both types of classifications. It penalizes persons with pre-1993 convictions who moved to the state after 1993 by requiring registration when it is not required of like offenders who are longer-term residents, *1269 and it creates fixed, permanent distinctions between sex offenders based solely upon the date when they established residency in Idaho. Thus, former I.C. § 18-8304(1)(b) creates a classification that burdens the right to travel.[4] The next question is whether the classifications created by I.C. § 18-8304(1) nevertheless pass constitutional muster. Generally, a law will survive scrutiny if the distinction it makes rationally furthers a legitimate state purpose, although some invidious distinctions are subject to strict scrutiny. Zobel, 457 U.S. at 61, 102 S.Ct. at 2313, 72 L.Ed.2d at 678. It is somewhat unclear whether strict scrutiny is appropriate in this case. The Supreme Court invoked strict scrutiny in Saenz, but did not indicate whether a less stringent standard might apply outside the facts of that case. Further, when applying an equal protection analysis in previous cases, the Court drew a distinction between laws that penalize migration and those that create fixed distinctions. As to the former, the Court generally applied strict scrutiny, see, e.g., Soto-Lopez, 476 U.S. at 904, 106 S.Ct. at 2322-23, 90 L.Ed.2d at 906; Shapiro, 394 U.S. at 631, 89 S.Ct. at 1329-30, 22 L.Ed.2d at 613; as to the latter, it declined to say whether strict scrutiny should apply, instead holding that the statutes at issue were not even rationally related to a legitimate state interest. Hooper, 472 U.S. at 618, 105 S.Ct. at 2866, 86 L.Ed.2d at 493-94; Zobel, 457 U.S. at 60-61, 102 S.Ct. at 2312-13, 72 L.Ed.2d at 677-78. Idaho Code § 18-8304(1) could arguably fall within either category. Because we conclude it cannot pass even the rational basis test, however, we need not decide whether a higher standard applies. The challenged statute differentiates between classifications based upon the date that the offender entered the state to establish or reestablish a residence. As with the California law at issue in Saenz, I.C. § 18-8304(1) creates a disfavored class (those who have pre-1993 convictions and arrived in Idaho after mid-1993), and a favored class (longer-term residents with pre-1993 convictions). To justify the law, the State must identify a legitimate policy reason to impose the registration burden only upon post-1993 arrivals. The Supreme Court has stated that the constitutionally protected right to travel does not permit state laws aimed at preventing the ingress of "undesirable" individuals. In Shapiro, the Court held: [T]he purpose of deterring the in-migration of indigents cannot serve as justification for the classification created by the one-year waiting period, since that purpose is constitutionally impermissible. If a law has "no other purpose . . . than to chill the assertion of constitutional rights by penalizing those who choose to exercise them, then it [is] patently unconstitutional." United States v. Jackson, 390 U.S. 570, 581, 88 S.Ct. 1209, 1216, 20 L.Ed.2d 138 (1968). Shapiro, 394 U.S. at 631, 89 S.Ct. at 1329-30, 22 L.Ed.2d at 613. Similarly in Saenz, the Court said: [O]ur cases have not identified any acceptable reason for qualifying the protection . . . for "the `citizen of State A who ventures into State B' to settle there and establish a home." Zobel, 457 U.S. at 74, 102 S.Ct. at 2320, 72 L.Ed.2d at 686-87 (O'Conner, J., concurring in judgment). Permissible justifications for discrimination between residents and nonresidents are simply inapplicable to a nonresident's exercise of the right to move into another State and become a resident of that State. Saenz, 526 U.S. at 502, 119 S.Ct. at 1526, 143 L.Ed.2d at 703-04. Thus, the Shapiro and Saenz decisions appear to foreclose any argument that excluding or deterring in-migration by persons with sex offense convictions is a constitutionally permissive purpose for a state law. At least two federal courts, following Saenz, have observed that disparate *1270 treatment of new residents under a state sex offender registration statute cannot be constitutionally justified by a state purpose of discouraging sex offenders from moving into the state. See Doe v. McVey, 381 F.Supp.2d 443, 450 n. 8 (E.D.Pa.2005); Lines v. Wargo, 271 F.Supp.2d 649, 677-78 (W.D.Pa.2003). In the present case, the State does not argue a goal of deterring movement of sex offenders into the state, but, instead, asserts that because of the high rate of recidivism by child molesters and the possibility of reoffense in different states many years later, the State has an interest in identifying out-of-state offenders who move to Idaho. To justify the broader registration requirements for sex offenders convicted in other jurisdictions, the State suggests these individuals are more difficult to track because their records are located in other states, and that in an emergency scenario, such as a child abduction, the State has a strong interest in having an easily-accessible local database from which law enforcement officers could identify and locate potential suspects. Gaining timely access to the names and addresses of residents with foreign sex offense convictions unquestionably is a legitimate state interest. The same can be said, however, of the need for readily available, up-to-date addresses of long-term residents with domestic convictions. Nothing in the record supports the State's premise that long-term residents with pre-1993 convictions are easy for law enforcement authorities to identify and monitor, and we think that premise is highly doubtful.[5] In addition, the classifications created by the statute are not rationally related to the purpose hypothesized by the State. The Act not only requires registration for pre-1993 foreign convictions, but also differentiates between foreign offenders based on the date they moved into the State. We cannot see how the State's interest in locating persons with foreign convictions is advanced by a law that excludes the registration of such individuals if they became Idaho residents before 1993. The State's asserted justification based on the need for a local database of individuals with foreign convictions is further undercut because the statute appears to exclude from registration persons who, while residing in Idaho before 1993, were convicted of sex crimes in the courts of other jurisdictions. Presumably, these long-term Idaho residents whose convictions occurred outside the Idaho court system would be as difficult to identify as sex offenders as new arrivals with foreign convictions would be. The State offers no reason to assume that sex offenders who entered Idaho after 1993 are more dangerous or more difficult to find than the individuals in these other classes. Thus, the purported interest is not being protected by the inequitable classification that the statute creates. The State's proposed rationale for the disparate treatment of the classifications created by I.C. § 18-8304(1) is also contradicted by subsequent legislative action amending the statute to largely eliminate these distinctions. According to minutes of legislative committee meetings, the amending legislation was presented by the Idaho State Police's Bureau of Criminal Identification, which maintains the central sex offender registry. The amending legislation's statement of purpose states that the amendment was to make updates and "corrections" to the Act. It says that the amendment "addresses an inequity" in that the former I.C. § 18-8304 did not require registration by offenders convicted in Idaho before July 1, 1993 but imposed the registration requirement on those with such convictions from other states who moved to Idaho. Statement of Purpose for 2005 House Bill 97. This legislative history suggests that the discrimination against new arrivals with pre-1993 foreign convictions in *1271 the former law was not a purposeful pursuit of any state interest or policy but was recognized as an error and possibly an unconstitutional classification. We conclude that the State's interest in apprehending re-offending sex offenders was not rationally advanced by a classification that differentiated between offenders based solely upon their date of entry into the state. Therefore, we are constrained to hold that the former I.C. § 18-8304(1)(b) created an unconstitutional burden on the right to travel insofar as it imposed a registration duty upon sex offenders with pre-July 1993 convictions who moved into the state during or after July 1993 while imposing no such duty on otherwise similarly situated longer-term residents. Because Dickerson falls within that burdened class, his judgment of conviction cannot stand. III. CONCLUSION As a matter of statutory law, Dickerson was required to register as a sex offender under the terms of I.C. § 18-8304(1)(b). Because the statutory provision under which he was convicted was unconstitutional, however, Dickerson's conviction for failure to register must be reversed.[6] The judgment of conviction entered by the district court is reversed. Chief Judge PERRY and Judge Pro Tem SCHWARTZMAN concur. NOTES [1] Because Dickerson was charged with failing to register between June 2002 and February 2003, we apply the form of the statutes in effect at that time. The statutes at issue were significantly amended and reorganized, effective July 1, 2005. 2005 Idaho Session Laws, ch. 233, § 1, pp. 710-14. Idaho Code § 18-8304(1)(b) now reads: On or after July 1, 1993, has been convicted of any crime, an attempt, a solicitation or a conspiracy to commit a crime in another state, territory, commonwealth, or other jurisdiction of the United States, including tribal courts and military courts, that is substantially equivalent to the offenses listed in subsection (1)(a) of this section and enters the state to establish permanent or temporary residence. The amendment also created a new subsection (c) that adds, as another class of persons required to register, any person who: Has been convicted of any crime, an attempt, a solicitation or a conspiracy to commit a crime in another state, territory, commonwealth, or other jurisdiction of the United States, including tribal courts and military courts, that is substantially equivalent to the offenses listed in subsection (1)(a) of this section and was required to register as a sex offender in any other state or jurisdiction when he established permanent or temporary residency in Idaho. The substantive provisions of former I.C. § 18-8307(1)(a) are now codified, as amended, in I.C. § 18-8307(4)(a). [2] At the outset, we note that our decision on this issue will be of limited precedential value because the 2005 legislative amendment modified subsection (b) to cover only out-of-state convictions that occurred on or after July 1, 1993. See note 1, supra. [3] The State argues that this constitutional issue was not preserved for appeal. We disagree. On his motion to dismiss the charge, Dickerson's reply brief to the district court argued that by requiring those without out-of-state convictions who subsequently move to Idaho to register as sex offenders when in-state offenders need not do so, the statute violated state and federal constitutional provisions because it punished people for moving across state lines and improperly favored Idaho residents. After his motion was denied, Dickerson agreed to enter a conditional guilty plea if he could preserve the constitutional issue for appeal. The prosecutor signed the conditional plea and the district court also signed an order approving the reservation of the issue. Under these circumstances, we conclude that the issue was raised and preserved for appeal. The State has also argued that in addition to being required to register under subsection (b) of I.C. § 18-8304(1), Dickerson was required to register under subsection (c) because on July 1, 1993 he was on parole for his Washington offense. If Dickerson was properly prosecuted under subsection (c), it would be unnecessary for us to reach his constitutional challenge to subsection (b). However, in the trial court the prosecution at all times proceeded under subsection (b), and never asserted a violation under subsection (c). Further, the record before us does not unequivocally show whether Dickerson was under parole or probation supervision in July 1993. Therefore, we cannot sustain Dickerson's conviction as an adjudication that fell within the purview of subsection (c). [4] Although it appears that the United States Supreme Court's line of right to travel cases all involve denial of benefits, we see no principled reason to distinguish the present case on the basis that the challenged statute imposes a burden rather than denying a benefit. The Supreme Court has said, "[S]ince the right to travel embraces the right to be treated equally in [his or] her State of residence, the discriminatory classification is itself a penalty." Saenz, 526 U.S. at 505, 119 S.Ct. at 1527, 143 L.Ed.2d at 705. [5] A similar justification for disparate treatment of new residents with foreign convictions under Pennsylvania's sex offender registration statute was rejected in Lines v. Wargo, where the court observed: There are many reasons why in-state offenders are as unknown to communities as out-of-state ones-the transience of the population, the length of time between the trial and the release from prison of an offender, the sheer size of the population of most cities and towns—and in fact these reasons have been offered in support of [sex offender registration laws] in general. Lines, 271 F.Supp.2d at 678. See also McVey, 381 F.Supp.2d at 450. [6] Although Dickerson's conviction for violating the Act when he moved to Idaho in 2002 must be reversed, it is possible that he is currently required to register under the present version of the Act. See I.C. § 18-8304(1)(c), (d).

01-03-2023

11-01-2013

https://www.courtlistener.com/api/rest/v3/opinions/2633293/

129 P.3d 1182 (2006) 110 Hawai`i 154 STATE of Hawai`i, Plaintiff-Appellee, v. Jonathan ASUNCION, Defendant-Appellant. No. 26397. Intermediate Court of Appeals of Hawai`i. February 15, 2006. *1183 Joyce K. Matsumori-Hoshijo, Deputy Public Defender, on the briefs, for defendant-appellant. Stephen K. Tsushima, Deputy Prosecuting Attorney, City and County of Honolulu, on the briefs, for plaintiff-appellee. LIM, Acting C.J., FOLEY and NAKAMURA, JJ. *1184 Opinion of the Court by FOLEY, J. Defendant-Appellant Jonathan Asuncion (Asuncion) appeals from the Judgment of Conviction and Sentence filed on January 14, 2004 in the Family Court of the First Circuit (family court).[1] A jury found Asuncion guilty of Abuse of Family or Household Members, in violation of Hawaii Revised Statutes (HRS) § 709-906 (Supp.2005),[2] and the family court sentenced Asuncion to one year of imprisonment. On appeal, Asuncion claims the family court prejudicially erred in admitting evidence of his prior acts of domestic violence against his girlfriend (Girlfriend) on April 16, 1997, December 4, 2000, and December 10, 2000 because that evidence was irrelevant and inadmissible under Hawaii Rules of Evidence (HRE) Rule 404(b) (Supp.2005)[3] and unnecessary and unduly prejudicial under HRE Rule 403 (1993).[4] We disagree and affirm. *1185 I. On July 7, 2003, Asuncion was charged by complaint with Abuse of Family or Household Members. The complaint alleged that on January 27, 2003 Asuncion physically abused Girlfriend, a family or household member. On October 7, 2003, the State filed its Notice of Intent to Use Evidence. Specifically, the State sought to introduce at trial, pursuant to HRE Rule 404(b) and State v. Clark, 83 Hawai`i 289, 926 P.2d 194 (1996), three prior police reports of abuse by Asuncion against Girlfriend. The State proffered the three reports as evidence of other incidents where Asuncion had threatened, harassed, or abused Girlfriend to provide a possible explanation for Girlfriend's recantation at trial and as evidence of Asuncion's intent, motive, modus operandi, and lack of mistake or accident. On January 8, 2004, prior to the start of trial, the family court held a hearing on the State's and Asuncion's motions in limine. The family court considered Asuncion's attorney's request that the court preclude the use of Asuncion's prior criminal record at trial. The State asserted that it would seek to allow into evidence Asuncion's three prior convictions for Abuse of Family or Household Members "pursuant to foundations laid under [HRE] 404B [sic] and State v. Clark."[5] Asuncion's attorney then discussed the application of Clark to the case at bar. Asuncion's attorney noted that the family court *1186 would probably be inclined to admit evidence of Asuncion's prior convictions to show the context of Asuncion and Girlfriend's relationship if Girlfriend were to recant her prior written statement to Honolulu Police Department Police Officer Toledo (Officer Toledo) at trial. However, Asuncion's attorney contended the holding in Clark was limited to situations in which the complaining witness had recanted the prior incidences of violence, in addition to recanting at trial. Asuncion's attorney also distinguished the instant case with Clark by pointing out that in Clark an expert witness[6] was used to demonstrate the context of the relationship between a defendant and a complaining witness. The State countered that the Hawai`i Supreme Court in Clark had stated no expert witness was required to prove that a defendant and complaining witness had an abusive relationship. The State explained that if Girlfriend were to try to characterize herself as the first aggressor or if she were to protectively lie for Asuncion about whether their relationship was abusive, Asuncion's prior convictions should be allowed so the jury could consider the context of the relationship between Girlfriend and Asuncion. The family court observed that "the question might be more precisely whether or not the variation in the accounts being made by the complaining witness amount[s] to her recantation," which was sometimes difficult to ascertain. The family court clarified that it would let in evidence of Asuncion's prior convictions if Girlfriend were to recant at trial, not to show that Asuncion and Girlfriend had an abusive relationship — i.e., to prove the truth of the matter asserted — but to demonstrate the context of their relationship and explain why Girlfriend might be recanting. Officer Toledo testified that on January 27, 2003 he responded to a call dispatching him to an apartment on Wilikina Drive. When he arrived at the apartment, Girlfriend and a teenage girl and boy were there. Officer Toledo asked Girlfriend what happened, and she told him that her boyfriend had punched her in the face several times because she was trying to stop him from taking the Playstation out of the house. Officer Toledo testified that Girlfriend's "hair was all messed up," "her eyes were puffy and red," her nose was red, she had a trembling voice, she appeared scared, and she had a redness to her left cheek. Officer Toledo documented in his report the fact that Girlfriend had redness to her left cheek, and he took a photograph of her. Officer Toledo asked Girlfriend to write and sign a statement, which she did. On cross-examination, Officer Toledo admitted that "the red and puffy eyes, the red noise [sic], [and] the trembling voice" probably could have been indications that Girlfriend had been merely crying. He testified it was possible that the redness to Girlfriend's cheek could have been from blowing her nose or rubbing her eyes. Officer Toledo testified that he did not observe any bruises, bumps, or scratches on Girlfriend's face, only redness. On redirect, Officer Toledo testified that Girlfriend told him she had gotten the redness to her left cheek from her boyfriend punching her in the face. Officer Toledo also testified that as part of his investigation he interviewed Girlfriend's son (Son). Son dictated his "HPD 252 statement" to his sister, Girlfriend's daughter (Daughter), who wrote it for him in Officer Toledo's presence. Officer Toledo conceded he did not know whether Daughter had written down Son's statement "word for word verbatim." Daughter had not witnessed the incident between Asuncion and Girlfriend. Daughter testified that Asuncion was the boyfriend of her mother (Girlfriend) and on January 27, 2003 Girlfriend and Asuncion were arguing. The fight led to physical hitting. Daughter left the house to call the police from a neighbor's phone. Police officers arrived about fifteen minutes after Daughter returned home. Daughter told the police she wanted to make a report, but the police said she could not make a report because she had not been there the whole time. Daughter testified that Son told her the "whole story," she wrote his statement down word-for-word, and Son did not write his own *1187 statement because he had a hard time spelling. Daughter testified that if there were a dispute between Girlfriend and Asuncion, it was safe to say she would side with Girlfriend. Son testified that on January 27, 2003 his mother (Girlfriend) and Asuncion were arguing about the fact that Asuncion was trying to take the Playstation. Girlfriend said to "leave it for the family." Son first testified he did not observe the fighting, but he later stated that he had misspoken and he did see physical fighting. He testified that Asuncion had a bag and was trying to leave when the argument turned physical. Asuncion was at the door when Girlfriend grabbed the bag Asuncion was carrying and tried to pull it away from Asuncion and Asuncion punched Girlfriend. Son testified that Girlfriend and Asuncion then went into their bedroom. While Asuncion and Girlfriend were in the bedroom, Son saw Asuncion again punch Girlfriend once or twice on the left side of her cheek with a closed fist. Son testified that after Girlfriend got punched in the face, she "had the scissors to defend herself" and Asuncion got scared, so Son "grabbed the scissors away." Asuncion then left. Asuncion never got stabbed or poked with the scissors. After Asuncion left, Girlfriend was crying. She was mad when Asuncion left, and she was still mad when the police arrived. Son testified that Daughter wrote down word for word his statement for him to give to the officer and he read the statement and signed it. He testified that when Asuncion and Girlfriend argued, it was fair to say he was pretty much on Girlfriend's side. Girlfriend testified that on January 27, 2003 Asuncion was her boyfriend and they were living together at Wilikina Drive. The evening of the 27th, she and Asuncion began arguing. After the argument, Asuncion said he was leaving and taking his things. He tried to walk out the door, which made Girlfriend even more mad. Girlfriend did not want Asuncion to leave, so she pulled his hair and tried to stop him from taking his Playstation. She testified that she got him around the neck, then "pulled him back and then he. . . hit me in the head too, I guess push me away." The Prosecutor asked Girlfriend about the physical altercation: Q [PROSECUTOR] He hit you on the head? A [GIRLFRIEND] Yeah, right here this side. Q What happened after he hit you on the head? A I yanked his playstation out. Oh, no, he just threw it and I took it and went in the room, then he left. Q How did he hit you in the head? A I don't know. Q Open-hand first or closed-hand fist? A I neva see. I was in a struggle. I had him around and he was like, trying to get away from me. Q Did the hit to your head cause you any pain? A Not at the moment. I was angry, and after, yeah, it was sore. Q Pardon me? A At the moment, it wasn't cause I was angry and I didn't feel nothing. Q But you did feel pain? A The next day, yeah. Q How about when — well, did the officers come? A Um, umm. Q Did you feel pain when the officers were there? A No. Q You didn't. Do you remember what time the police arrived? A About maybe 6:50, around there, yeah. Q And did he hit you anymore times besides hitting you in the head? A No. Q When the police arrived, did you write a statement? A Yes. [PROSECUTOR]: Your Honor, may the record reflect that I'm showing defense counsel what has been marked as, for identification *1188 purposes, State's Exhibit Number 4. May I approach the witness? THE COURT: Very well, you may approach. Q [PROSECUTOR]: [Girlfriend], I'm showing you what's been marked for identification purposes State's Exhibit 4.[7] Do you recognize this? A Yes. Q And what is this? A My statement I wrote. Q How do you recognize it? A My writing, my name. Q And that's your signature at the bottom? A Yes. Q And do you remember telling the officer that you got punched in the right side temple and left cheek? A Yeah. Q And do you remember telling the officer that you felt pain on both sides of your face and neck? A No, I neva — he asked me if I felt pain, and he told me to write that I had pain. Q He told you to write that? A Yeah, and he also told me to write I would prosecute. Q But you did feel pain? A No, at the time I was angry. [PROSECUTOR]: Your Honor, at this time, the State is going to ask that what's been marked as State's Exhibit 4 for identification purposes be moved into evidence? THE COURT: Any objections? [PROSECUTOR]: (indiscernible) THE COURT: Any objections, [Defense Counsel]? [DEFENSE COUNSEL]: Yes, your Honor, lack of foundation. THE COURT: The Court is going to admit into evidence over defense's objections the proposed exhibit number 4 and mark it State's number 4. You may continue. [PROSECUTOR]: Thank you, your Honor. . . . Q [Girlfriend], do you still live with the defendant? A Yes. Q And you still love him, don't you? A Yes. Q And he's the father of your two young children? A Yes. Q And you don't wanna see anything bad happen to him, do you? A No, I just want help for both of us, counseling. (Emphasis added.) After the above testimony, the family court excused the jury and heard argument regarding the introduction of prior bad acts evidence. The State explained that, in addition to the 2000 and 2001 convictions, Asuncion had been convicted of Abuse of Household or Family Members on June 2, 1997. At the time of the June 2, 1997 conviction, Asuncion and Girlfriend had been living together. The family court stated that because the purpose for allowing the prior incidents and convictions is to provide the jury with the context of the relationship and the relationship was in existence at the time, the Court is going to allow the reference to the June 2, 1997, conviction to be brought before the jury. The State then clarified that "for the purposes of Clark . . ., the State would be seeking to admit . . . the testimony regarding the prior incidences of the abuses [sic], but not the convictions." The family court agreed, stating that, according to the holding in Clark, "it is the *1189 prior acts of domestic violence, not the convictions that is [sic] admissible at this point." The family court went on to note: The Court has, however, to accomplish a balancing test to see whether the danger of unfair prejudice substantially outweighs the probative value of the evidence of the prior acts of domestic violence in this case, and Clark again is instructive. Relying on [State v. ]Castro [, 69 Haw. 633, 756 P.2d 1033 (1988)],[8] the importance of the need factor when weighing probative value versus prejudicial effect under 404-B [sic], and the court in Clark said, the Castro Court emphasis on the need for the evidence warrants the admission of the evidence at issue in the present case. And the need factor is highlighted in the [reference to Castro] in Footnote Number 4 [in Clark[9]]. . . . . The Court in balancing the factors that Clark requires it to do in this case is going to find that the need for the evidence is great and, therefore, weighing the probative value of the evidence versus the prejudicial effect, the Court is going to allow the prior evidence . . . of . . . all three acts of domestic violence for the purpose of showing the jury the context of the relationship between the victim and the defendant *1190 where the relationship is being offered as a possible explanation for [Girlfriend's] recantation at trial. . . . . . . . [T]he Court is going to suggest that the Court provide [the jury with] a cautionary or limiting instruction before the evidence is presented. (Footnotes not in original). The family court agreed to add a provision to the jury instructions explaining that the jury was not to consider the testimony on prior acts in deciding Asuncion's guilt or innocence. Asuncion's attorney stated that "we had an officer who testified as to excited utterances, as well as two other juvenile witnesses, and so I don't think the need for this evidence is as great as would be normally argued." The State countered: Neither the police officer, [Daughter]. . . nor [Son] . . . have been able to testify to . . . the context of the relationship that these people live with, and for that reason, it should be admitted notwithstanding the testimony of the other three witnesses that [sic] have testified before the Court. The family court decided that the evidence is being provided for a limited purpose under Clark, and in terms of the [HRE] 403 balancing, the Court does find that while I would agree that it's not very great because we have the testimony of the two children, nevertheless I think it's greater than the prejudicial impact. The Court does not find that the evidence will arouse the jury to overmastering hostility, particularly in . . . light of the cautionary instruction that's gonna be given. . . and therefore, outweighing anything else that anyone else might testify to in this case. The trial reconvened, and the family court instructed the jury: [Y]ou're about to hear evidence which is being admitted by the Court for a limited purpose. The jury is not to consider this evidence in deciding the innocence or guilt. . . of the defendant. The evidence is being allowed to provide you with the context of the relationship between the complaining witness and the defendant and to give you a possible explanation for the complaining witness' [sic] differing testimony in court this morning. The family court repeated the instructions, and then the direct examination of Girlfriend resumed. Girlfriend testified she did not remember an event that occurred on April 16, 1997, such as "getting hit in the head five times by [Asuncion] while he pull[ed] [her] to the ground," or that she filed a police report on that date. Girlfriend did remember there was an incident on December 4, 2000 and she had filed a police report on that date, but she did not remember exactly everything that happened. When asked if she remembered reporting that Asuncion had beaten her up; had grabbed her by the neck and the throat area, causing red bruises to the left and right side of her neck; and had pulled her hair in front of her kids, Girlfriend stated she remembered that night, her kids were not there as they were asleep, and it was just Asuncion and her. Girlfriend testified she also remembered that she and Asuncion had argued on December 10, 2000 when she had gone to Asuncion's mother's house. Asuncion had hit her in the head and squeezed her mouth, and they were hitting each other. Girlfriend testified that "there are days that I do hit him and he don't hit me and that's the truth." Girlfriend continued, "I provoke him and . . . I hit him too. I got myself too." She testified that she is "always depressed and angry." She and Asuncion would argue, and she would get mad at him. She would still be mad at him when the police came and would sometimes tell the police things to get Asuncion into trouble. When questioned by Asuncion's attorney regarding the physical altercation, Girlfriend responded that she "yanked [Asuncion's] hair back and then I put my arm around his neck" and "I don't know if he went punch or push my head like that, but he tried to pry me off of his body." Girlfriend testified she "was hitting him to stay and not leave," but Asuncion would push her away every time she went near him. Girlfriend pulled his hair again as he was trying to leave. *1191 Girlfriend testified that after Asuncion punched her, she picked up a pair of scissors and threatened Asuncion with the scissors, but then Son took the scissors from her. Asuncion's attorney questioned Girlfriend about the statement she made to the police: Q [DEFENSE COUNSEL] Okay. Now, [Girlfriend], you did say that you filled out this written statement, correct, for the police? A [GIRLFRIEND] Yeah. . . . . Q Okay. And now you're saying that basically what this says isn't entirely true then? A I never write down word for word what happened, everything what happened. The cops just told me to write. He was telling me what to write, the officer. Q Oh, I'm sorry, the officer told you what to write? A Yeah, he told — he asked me, he just said to write that that he [Asuncion] punched me in the head, that I would prosecute it cause I didn't wanna write it. Q Okay. So, the part where you say that my boyfriend, Jonathan Asuncion, punched the right side temple and punched my left cheek, that's not true. I mean, he may have contacted those areas, but you don't think he, it's not as you make this sound that he punched you? A No, cause I neva write everything from the beginning. Q Alright. So, what you actually mean is that he was trying to push you away? A Yeah. . . . . Q Okay. So this [statement] isn't entirely true, then, correct? A No. Q Okay. You know, is it safe to say that you wrote this stuff because at the time you were mad at [Asuncion]? A Yeah. In her testimony, Girlfriend stated she knew Son had filled out a statement for the police indicating that she had been punched twice. She did not tell Son or Daughter what to say. Girlfriend testified that Son and Daughter were outside on the porch and she saw Son when he walked in and grabbed the scissors from her. The State questioned Girlfriend a second time about the physical altercation: Q [PROSECUTOR] When did you pick up the scissors, was it before he punched you or after he punched you? A [GIRLFRIEND] After I had him by his hair and the neck, then he pushed me away, then I reached for the scissors. Q And when you say pushed, that's when you got punched in the face, right? A Yeah. Q Okay. So, then you got the scissors after you were punched? A Yeah, and then I went grab the scissors and my son grabbed it from me. Q Okay. So, you were punched in the face? A I don't know if it was a punch or a push cause I was, I had my hand around his neck, and all I remember is him, like tugging away from me and I reached for the scissors. Q And do you recall — did you have any injuries after you were punched in the face? A No. After Girlfriend's testimony, Asuncion moved for a judgment of acquittal, but the family court denied the motion. Regarding the evidence of Asuncion's prior acts of domestic violence, the family court gave the following instruction to the jury: "Instruction Number 5: during the trial, I told you that certain evidence was allowed into this trial for a particular and limited purpose. When you consider that evidence, you must limit your consideration to that purpose." The jury found Asuncion guilty as charged. Judgment was entered on January 14, 2004, and Asuncion timely appealed. *1192 II. A. Evidentiary Rulings "We apply two different standards of review in addressing evidentiary issues. Evidentiary rulings are reviewed for abuse of discretion, unless application of the rule admits of only one correct result, in which case review is under the right/wrong standard." State v. Ortiz, 91 Hawai`i 181, 189, 981 P.2d 1127, 1135 (1999) (internal quotation marks and citations omitted). B. Abuse of Discretion "Generally, to constitute an abuse, it must appear that the court clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of a party litigant." State v. Crisostomo, 94 Hawai`i 282, 287, 12 P.3d 873, 878 (2000) (internal quotation marks, citations, and brackets omitted). III. Asuncion claims the family court prejudicially erred by admitting evidence of his prior acts of domestic violence against Girlfriend because that evidence was irrelevant and inadmissible under HRE Rule 404(b) and unnecessary and unduly prejudicial under HRE Rule 403. A. Girlfriend's recantation In support of his argument, Asuncion maintains that admission of his prior bad acts was improper because Girlfriend's testimony did not actually amount to a recantation. Asuncion contends that, unlike the complaining witnesses in Clark and a case the Hawai`i Supreme Court cited in Clark,[10] Girlfriend did not clearly recant. Asuncion argues that Girlfriend "did not clearly and unequivocally withdraw her initial allegations" at trial, but, instead, "presented the full picture of what really happened during the altercation." To "recant," according to Black's Law Dictionary 1274 (7th ed.1999), is "[t]o withdraw or renounce (prior statements or testimony) formally or publicly." Girlfriend did recant the portion of her statement to the police that read: "I felt pain on both side [sic] of my face and head." She testified at trial that the hit to her head did not cause her any pain until the day after the incident took place and she did not feel pain when the police were at her apartment. Moreover, she clearly recanted (1) when she answered "No, I neva — he asked me if I felt pain, and he told me to write that I had pain" in answer to the question "And do you remember telling the officer that you felt pain on both sides of your face and neck?"; and (2) then again when she answered the question, "But you did feel pain?" with "No, at the time I was angry." Asuncion suggests that in order for Girlfriend's testimony to rise to the level of a recantation, she had to have testified at trial that her "initial allegations had been completely false," or "expressly [said] that her earlier description was not true." However, one of the two primary cases on this point that the Hawai`i Supreme Court relied on in Clark indicates this is not so. In Smith v. State, 669 A.2d 1 (Del.1995), the complaining witness had written in her statement to the police that she and her fiancé, Smith, had been arguing and Smith had hit her with his fists and forced her to have sexual intercourse with him. Id. at 3. Later, at Smith's trial, the complaining witness "reluctantly acknowledged that she and Smith had fought on the night in question and that they had traded punches. However, she denied having been raped." Id. The complaining witness explained that "when she spoke to the police . . . she was angry, tired and upset." Id. She testified that "she exaggerated a lot about what had happened because she wanted the police to remove Smith from the apartment." Id. *1193 The state sought to admit evidence relating to prior violent episodes between Smith and complaining witness. Id. at 5 The state argued that the fact the complaining witness was enduring an abusive relationship helped explain why she recanted her prior statement and testified the sexual relations were consensual. Id. The trial judge agreed and allowed the state to ask the complaining witness about the prior incidents. Id. Nothing in the Smith opinion suggests the complaining witness specifically testified that her "initial allegations had been completely false" or that she "expressly [said] that her earlier description was not true," and, yet, the court agreed she had recanted at trial. Id. at 5. Girlfriend's recantation of her statement to the police that she "felt pain on both side [sic] of my face and head" was critical to the State's prosecution. To convict Asuncion of Abuse of Family or Household Members, the State was required to prove beyond a reasonable doubt that Asuncion in striking Girlfriend caused her to suffer physical pain. Jury instructions numbers 14 and 15 read: Instruction Number 14: in the complaint, the defendant, Jonathan Asuncion, is charged with the offense of abuse of family and [sic] household members. A person commits the offense of abuse of family and [sic] household members if he intentionally, knowingly or recklessly physically abuses a family or household member[ ]. There are two material elements to the charge of abuse of family and [sic] household members each of which the prosecution must prove beyond a reasonable doubt. These two elements are: one, on or about January 27, 2003, in the City and County of Honolulu, State of Hawaii, Jonathan Asuncion physically abused [Girlfriend]; and two, that at the time, Jonathan Asuncion and [Girlfriend] were either family or household members. The prosecution must prove beyond a reasonable doubt that the defendant acted intentionally, knowingly or recklessly as to each element of the offense. Instruction Number 15: family or household members means spouses or persons who have a child in common, parents, children, and persons jointly residing or formerly residing in the same dwelling unit. Physical abuse means causing bodily injury to another person. Bodily injury means physical pain, illness or any impairment of physical condition. (Emphasis added.) In State v. Nomura, 79 Hawai`i 413, 903 P.2d 718 (App.1995), this court approved of such a jury instruction defining "physical abuse" under HRS § 709-906(1) as "causing bodily injury to another person," meaning, in part, "physical pain." Nomura, 79 Hawai`i at 415-16, 903 P.2d at 720-21. As this court stated, "it is evident that to `physically abuse' someone means to maltreat in such a manner as to cause injury, hurt, or damage to the person's body." Id. at 416, 903 P.2d at 721 (emphasis added). The circuit court did not err by finding that Girlfriend's testimony at trial amounted to a recantation of her written statement given to the police. B. Prior recantation, expert witness, and explanation to jury Asuncion argues that even if the testimony did amount to a recantation, the State failed to establish the relevance of the prior acts because it did not: (1) offer proof of recantation in the prior instances, (2) provide testimony from an expert on domestic violence, or (3) otherwise attempt to clarify to the jury how three instances over a seven-year period could provide an explanation for the recantation. In Clark, the complaining witness had recanted her statement to the police in one of the two prior incidents introduced into evidence at trial. Clark, 83 Hawai`i at 293, 926 P.2d at 198. However, the Hawai`i Supreme Court in Clark did not say the prior recantation was essential to its holding. In addition, in Thompson, the prior bad acts introduced into evidence by the state did not include any prior recantations by the complaining witness. Thompson, 520 N.W.2d at 470-71. Likewise, in Smith, although the state was allowed to ask the complaining witness about five prior incidents *1194 in which the defendant's conduct had resulted in the complaining witness calling the police, going to a hospital emergency room for treatment, or both, the incidents apparently did not involve recantations on the part of the complaining witness. Smith, 669 A.2d at 5. Asuncion's contention that an expert on domestic violence was required to testify during the trial in order for his prior bad acts to be introduced into evidence also lacks merit. Nowhere in Clark does the court suggest that this is so, and in neither Smith nor Thompson did the trial include testimony by an expert witness. As for whether the family court was required to explain to the jury how Asuncion's prior bad acts related to Girlfriend's in-court recantation, there is nothing in Clark or the record in the instant case to show that such an instruction was necessary. Regardless, the family court did explain to the jury, "[t]he evidence is being allowed to provide you with the context of the relationship between the complaining witness and the defendant and to give you a possible explanation for the complaining witness' [sic] differing testimony in court this morning." C. Prejudicial impact versus probative value of the evidence Finally, Asuncion argues that, even assuming the evidence of the three prior incidents was relevant under HRE 404(b) and the holding in Clark, the family court erred by admitting the evidence because its prejudicial impact substantially outweighed its probative value. After hearing the parties' arguments regarding the admission of the prior bad acts evidence, the family court explained that the prior violent incidents were being provided for a limited purpose under Clark, and in terms of the 403 balancing, the Court does find that while I would agree that it's not very great because we have the testimony of the two children, nevertheless I think it's greater than the prejudicial impact. The Court does not find that the evidence will arouse the jury to overmastering hostility, particularly in . . . light of the cautionary instruction that's gonna be given. . . and therefore, outweighing anything else that anyone else might testify to in this case. The court then instructed the jury: [Y]ou're about to hear evidence which is being admitted by the Court for a limited purpose. The jury is not to consider this evidence in deciding the innocence or guilt. . . of the defendant. The evidence is being allowed to provide you with the context of the relationship between the complaining witness and the defendant and to give you a possible explanation for the complaining witness' [sic] differing testimony in court this morning. Later, while instructing the jury, the family court reminded the jury that "during the trial, I told you that certain evidence was allowed into this trial for a particular and limited purpose. When you consider that evidence, you must limit your consideration to that purpose." "The responsibility for maintaining the delicate balance between probative value and prejudicial effect lies largely within the discretion of the trial court." State v. Brantley, 84 Hawai`i 112, 118, 929 P.2d 1362, 1368 (App.1996) (citing State v. Iaukea, 56 Haw. 343, 349, 537 P.2d 724, 729 (1975)). In Clark, the supreme court held that the complaining witness's testimony regarding Clark's prior instances of violence "far outweighs any prejudice that may result as a consequence of introducing this evidence." 83 Hawai`i at 303, 926 P.2d at 208. In reaching this decision, the court noted that Castro . . . underscores the importance of the need factor when weighing probative value versus prejudicial effect under Rule 404(b). The Castro court's emphasis on the need for the evidence warrants the admission of the evidence at issue in the present case. Here, the incidents of Clark's prior violence and Diana's [the complaining witness] behavior were admissible to show the trier of fact Diana's relationship with Clark, where that relationship *1195 was offered to explain a central fact of consequence — Diana's recantation. Id. (internal quotation marks, citation, and footnote omitted). In the instant case, pursuant to Clark, the State introduced into evidence prior instances of violence between Asuncion and Girlfriend to help explain why Girlfriend recanted at trial her statement to the police. As in Clark, the evidence of prior violence between Girlfriend and Asuncion was needed because it provided context for their relationship, whereas no other evidence in the trial did. Additionally, the family court alleviated the risk of prejudice by specifically instructing the jury not to consider the prior instances of violence in determining Asuncion's guilt or innocence. Therefore, we conclude the family court did not err by finding the probative value of the evidence outweighed its prejudicial effect. IV. The Judgment of Conviction and Sentence filed on January 14, 2004 in the Family Court of the First Circuit is affirmed. NOTES [1] The Honorable Reynaldo D. Graulty presided. [2] Hawai`i Revised Statutes (HRS) § 709-906 (Supp.2005) provides: § 709-906 Abuse of family or household members; penalty. (1) It shall be unlawful for any person, singly or in concert, to physically abuse a family or household member or to refuse compliance with the lawful order of a police officer under subsection (4). The police, in investigating any complaint of abuse of a family or household member, upon request, may transport the abused person to a hospital or safe shelter. For the purposes of this section, "family or household member" means spouses or reciprocal beneficiaries, former spouses or reciprocal beneficiaries, persons who have a child in common, parents, children, persons related by consanguinity, and persons jointly residing or formerly residing in the same dwelling unit. (2) Any police officer, with or without a warrant, may arrest a person if the officer has reasonable grounds to believe that the person is physically abusing, or has physically abused, a family or household member and that the person arrested is guilty thereof. (3) A police officer who has reasonable grounds to believe that the person is physically abusing, or has physically abused, a family or household member shall prepare a written report. (4) Any police officer, with or without a warrant, may take the following course of action where the officer has reasonable grounds to believe that there was physical abuse or harm inflicted by one person upon a family or household member, regardless of whether the physical abuse or harm occurred in the officer's presence: (a) The police officer may make reasonable inquiry of the family or household member upon whom the officer believes physical abuse or harm has been inflicted and other witnesses as there may be[.] . . . . (5) Abuse of a family or household member and refusal to comply with the lawful order of a police officer under subsection (4) are misdemeanors[.] . . . . Upon conviction and sentencing of the defendant, the court shall order that the defendant immediately be incarcerated to serve the mandatory minimum sentence imposed; provided that the defendant may be admitted to bail pending appeal pursuant to chapter 804. The court may stay the imposition of the sentence if special circumstances exist. . . . . (9) The family or household member who has been physically abused or harmed by another person may petition the family court, with the assistance of the prosecuting attorney of the applicable county, for a penal summons or arrest warrant to issue forthwith or may file a criminal complaint through the prosecuting attorney of the applicable county. (Emphasis added.) [3] Hawai`i Rules of Evidence (HRE) Rule 404 (Supp.2005) provides in relevant part: Rule 404 Character evidence not admissible to prove conduct; exceptions; other crimes. . . . . (b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible where such evidence is probative of another fact that is of consequence to the determination of the action, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, modus operandi, or absence of mistake or accident. In criminal cases, the proponent of evidence to be offered under this subsection shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the date, location, and general nature of any such evidence it intends to introduce at trial. [4] HRE Rule 403 (1993) provides: Rule 403 Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. [5] In State v. Clark, 83 Hawai`i 289, 926 P.2d 194 (1996), Clark was charged with Attempted Murder in the Second Degree for stabbing his wife, Diana. Id. at 291-92, 926 P.2d at 196-97. At trial, Diana's testimony differed greatly from what she had told a detective and others about the incident. Id. at 292, 926 P.2d at 197. Diana stated that her original story had been "a total lie." Id. at 293, 926 P.2d at 198. Whereas her original story had implicated Clark, her testimony on the stand completely exculpated him. Id. During the trial, the State asked Diana about two prior times the police had been called to her home in response to arguments between Clark and her. Id. In the first incident, the police were called to the couple's residence after Diana had been injured during an argument with Clark. Id. After the incident, Diana contended that Clark had not injured her. Id. In the second incident, the police were called to the couple's residence after the couple had quarreled. Id. Although Clark had caused substantial damage to the couple's property during the altercation, Diana initially lied to the police and told them a burglar had done the damage. Id. Diana later admitted, however, that Clark had done it. Id. Among that of other witnesses, the State presented the testimony of an expert on domestic violence. Id. The expert testified that domestic violence victims often recant allegations of abuse against their abusers. Id. A jury found Clark guilty as charged, and Clark was sentenced to a life term of imprisonment with the possibility of parole. Id. Clark appealed, arguing, in part, that the trial court erred by allowing the State to question Diana regarding the two prior incidents, which should have been precluded under HRE Rule 404(b) or Rule 403. Id. at 299, 926 P.2d at 204. The Hawai`i Supreme Court first considered the relevance of the evidence. Id. at 300, 926 P.2d at 205. The court held that "where a victim recants allegations of abuse, evidence of prior incidents of violence between the victim and the defendant are relevant to show the trier of fact the context of the relationship between the victim and the defendant, where . . . that relationship is offered as a possible explanation for the victim's recantation." Id. at 302, 926 P.2d at 207. The supreme court then weighed the probative value of the evidence against its prejudicial effect. Id. at 303, 926 P.2d at 208. It held that "[t]he Castro court's emphasis on the need for the evidence warrants the admission of the evidence at issue in the present case." Id. The supreme court was referring to the dicta set forth in State v. Castro, 69 Haw. 633, 756 P.2d 1033 (1988), when it stated: In deciding whether the danger of unfair prejudice and the like substantially outweighs the incremental probative value [of evidence], a variety of matters must be considered, including the strength of the evidence as to the commission of the other crime, the similarities between the crimes, the interval of time that has elapsed between the crimes, the need for the evidence, the efficacy of alternative proof, and the degree to which the evidence probably will arouse the jury to overmastering hostility. Castro, 69 Haw. at 644, 756 P.2d at 1041 (emphasis added) (citing E.W. Cleary, McCormick on Evidence § 190 (3d ed.1984)). Clark, 83 Hawai`i at 303 n. 4, 926 P.2d at 208 n. 4 (emphasis in original). The court held that "where the complaining witness recants his or her pre-trial accusation against the defendant, evidence of prior acts of domestic violence involving the complaining witness and the defendant is admissible, subject to the HRE 403 balancing test, to show the jury the context of the relationship between the victim and the defendant, where the relationship is offered as a possible explanation for the complaining witness's recantation at trial." Id. at 303, 926 P.2d at 208. [6] A domestic violence expert. Clark, 83 Hawai`i at 293, 926 P.2d at 198. [7] The statement Defendant-Appellant Jonathan Asuncion's girlfriend (Girlfriend) wrote for the police and signed on January 27, 2003 read as follows: On this day Jan. 27, 2003, at 6:40 p.m. my boyfriend Jonathon [sic] Asuncion punch the right side tempo [sic], and punched my left chick [sic]. I felt pain on both side [sic] of my face and head. Jonathon [sic] Asuncion is the father of my last 2 children. We been together for the past 7 yr. This inci[dent] happien [sic] at my house at . . . Wilikina Dr. . . . Wahiawa HI, 96786. I am willing to prosecute. [8] In State v. Castro, 69 Haw. 633, 756 P.2d 1033 (1988), Castro was charged with Attempted Murder and Assault in the First Degree for grabbing his girlfriend by the hair and stabbing her repeatedly in the back and neck with a knife. Id. at 639-40, 756 P.2d at 1039. Before trial, the State served notice of its intention to enter into evidence testimony concerning Castro's prior acts of violence. Id. at 640, 756 P.2d at 1039. The State contended this evidence was admissible pursuant to HRE 404(b) since it was probative of Castro's state of mind at the time he committed the offenses. Id. Castro responded with a motion in limine that the testimony should be excluded since it was being offered to prove his character in order to show that he acted in conformity therewith on the occasion in question. Id. (quotation marks and brackets omitted). The trial court found the evidence was relevant, id., in establishing intent, preparation, plan, knowledge, and modus operandi, id. at 644, 756 P.2d at 1041-42, and its probative value outweighed any prejudicial effect it could have. Id. at 640-41, 756 P.2d at 1039. When Castro's girlfriend testified, she described incidents, prior to the stabbing that had given rise to the case at bar, in which Castro had slapped and punched her, threatened her while wielding a knife, threatened her over the telephone, held a gun to her head, and raped her. Id. at 641, 756 P.2d at 1040-41. On appeal, the Hawai`i Supreme Court held that the lower "court erred when it . . . admitted evidence of the defendant's aggressive and violent character." Id. at 638, 756 P.2d at 1038. In its dicta, the court noted that if the evidence is probative of any . . . fact of consequence in the determination of the case, the court must then consider whether the prejudicial impact of the evidence would be substantially greater than its probative worth. And [i]n deciding whether the danger of unfair prejudice and the like substantially out-weighs the incremental probative value, a variety of matters must be considered, including the strength of the evidence as to the commission of the other crime, the similarities between the crimes, the interval of time that has elapsed between the crimes, the need for the evidence, the efficacy of alternative proof, and the degree to which the evidence probably will rouse the jury to overmastering hostility. [E.W. Cleary, McCormick on Evidence § 190 (3d ed.1984).] Castro, 69 Haw. at 644, 756 P.2d at 1041. The court then stated that the introduction of Castro's prior bad acts in the instant case could not be "justified on the basis of need or the inefficacy of alternative proof. For there was much more from which an inference of intentional conduct could be drawn in the evidence of the offense for which the defendant was being tried." Id. The court commented that "[t]here was even less justification to deem the evidence in question relevant on grounds that it showed preparation, plan, knowledge, and modus operandi," id., because "preparation," "plan," and "modus operandi" evidence served to identify the perpetrators of a crime, and the identity of the perpetrator in the case at bar was not in issue. Id. at 645, 756 P.2d at 1042. In addition, "knowledge" evidence was not probative because Castro did not claim that the crime for which he was being tried was committed without knowledge. Id. The court went on to hold that the incremental probative value of the evidence in question was not great. The trial court's allowance on the prosecution's case-in-chief of evidence likely to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge was an abuse of discretion. On balance, the potential for unfair prejudice being generated by the evidence was far greater than its value in establishing facts of consequence to the determination of the case. Id. at 645-46, 756 P.2d at 1042 (internal quotation marks, citations and brackets omitted). [9] See supra note 5. [10] The Hawai`i Supreme Court in Clark cites to State v. Thompson, 520 N.W.2d 468 (Minn.Ct. App.1994), a case in which the complaining witness told numerous persons, including her roommate, her sister, two police officers, and a domestic abuse counselor, that her boyfriend, Thompson, had sexually assaulted her with a hanger. Id. at 470. However, soon afterwards, she told her sister that she had lied about the assault, she had used the hanger on herself, and she did not want Thompson to go to prison because of her false allegations. Id. The state proceeded to prosecute Thompson, and a jury later found Thompson guilty. Id.

01-03-2023

11-01-2013

https://www.courtlistener.com/api/rest/v3/opinions/2344719/

256 S.W.3d 846 (2008) Joe Alan COOK, Appellant v. The STATE of Texas, Appellee. No. 06-07-00051-CR. Court of Appeals of Texas, Texarkana. Submitted March 25, 2008. Decided June 6, 2008. *847 Lew Dunn, Longview, for appellant. Lisa Tanner, Asst. Atty. Gen., Austin, for appellee. Before MORRISS, C.J., CARTER and CORNELIUS,[*] JJ. OPINION Opinion by Justice CORNELIUS (Retired). A jury convicted Joe Alan Cook of attempted aggravated sexual assault of a child. His punishment, enhanced by two prior felony convictions, was set by the jury at ninety-five years' confinement. On appeal, Cook assigns eight points of error in which he generally contends: the evidence is legally insufficient under State and Federal standards and is factually insufficient under the State standards; the failure to identify in the indictment and at trial a specific person who was the intended victim of the aggravated sexual assault violated Cook's due-process rights; Cook was convicted of an offense that does not exist; the Texas statute criminalizing online solicitation of a minor is unconstitutional; the trial court's charge in this case was fundamentally erroneous because it combined elements of two different offenses; and Cook's punishment is unconstitutional because the State failed to *848 prove that the prior convictions from Illinois used for enhancement were substantially similar to Texas felony offenses. For the reasons hereafter stated, we overrule all these contentions and affirm the judgment. The evidence at trial revealed that, on January 23, 2006, Cook, using the user name, "joe — cook — 2006," entered an internet chat room titled "Romance Texas." He initiated an online conversation with "Kacy" who had entered the chat room. Cook began the conversation by stating, "Hi, I am Joe in Longview. how are you?" Kacy responded, "im fine. 13f." Cook asked, "13?" Kacy answered, "yeah. thatz all. still wanna chat?" Cook replied, "wow. do you attend Pine Tree then?" Kacy stated, "yup. u knew," and Cook replied, "from your name, yes." Unknown to Cook, "Kacy" who was chatting with him, was actually Sergeant Michelle Stern, an investigator with the Texas Attorney General's Office who was investigating child exploitation crimes over the internet. The online profile of Kacy that Stern set up represented that Kacy lived in Longview and was a single female whose interests were "music and friends." After several minutes of chatting, Cook moved the conversation to sexual matters. He asked Kacy, "so, how personal may I get?" Eventually, Cook began an online conversation in which he described in graphic detail the sexual acts he would like to do with Kacy. Ultimately, Cook asked Kacy, "would you want to get together?" Kacy answered, "r u 4 real?" and expressed concern that she would get in trouble. In the same conversation, Cook asked if Kacy would like to see his sexual organ. Kacy answered, "I have never done it with ne one." Cook sent Kacy an image of his sexual organ. In subsequent conversations online, Cook set up a meeting with Kacy where they could "make love." Kacy said they could meet at the corner of the school, which she reminded him was "pine tree jr high." During these conversations, Cook described in graphic terms how he would have sexual relations with Kacy, who responded with "it will b my first." In a conversation finalizing plans for their meeting, Kacy stated, "r u sure it wont bug u that im 13?" Cook answered by saying that it would be better if she were older, but he knew she wanted to do it and an older man should do it so it would not hurt. Kacy also stated to Cook, "remember I cant get pg." Cook responded, "I know, won't happen, i would get in big trouble, prison for a long time." Kacy then asked why, and Cook said, "you are under 16 . . . that is against the law." Eventually, Cook and Kacy agreed to meet at a place Kacy represented to be where she lived. Cook told her that because his truck had broken down, he would go to her apartment on his bicycle. On the morning of February 1, 2006, at about 9:00 a.m., Cook arrived by bicycle at what he believed was where Kacy lived. When he knocked on the door, he was placed under arrest. He had in his possession a pair of underwear, various toiletries, a camera, a pocketknife, a "bear candle," a box of condoms, and lubricating jelly. We first consider Cook's contentions that the evidence is legally and factually insufficient to support the conviction. Cook challenges the legal sufficiency under both the Texas and the Federal standards, and the factual sufficiency under the Texas standard. In reviewing the legal sufficiency of the evidence under both the state and Federal standards, we view all the evidence in the light most favorable to the verdict, and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L.Ed.2d *849 560 (1979); King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App.2000). The evidence is factually insufficient when, although it is legally sufficient, it is so weak that the verdict appears to be clearly wrong or manifestly unjust, or the verdict is against the great weight and preponderance of the evidence. Castillo v. State, 221 S.W.3d 689, 693 (Tex.Crim.App.2007); Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim. App.2006). Cook's attack on the sufficiency of the evidence focuses not on a failure of the State to prove his acts in planning and preparing to have the sexual liaison with Kacy, but rather on the failure of the State to prove what Cook alleges are two fundamental facts necessary for a conviction, namely, that there was an actual child involved in the offense, and that Cook intended to have sexual relations with a child he believed was under the age of fourteen. We reject this contention for the following reasons. First, Cook was indicted for and convicted of attempted aggravated sexual assault of a child. See TEX. PENAL CODE ANN. § 15.01 (Vernon 2003). Section 15.01 is a general attempt statute in which the constituent elements of the attempt offense are uniform regardless of the elements of the crime actually attempted. Torres v. State, 618 S.W.2d 549, 550 (Tex. Crim.App. [Panel Op.] 1981). Thus, all the State was required to allege and prove in this case was that Cook had the intent to commit aggravated sexual assault of a child, did an act amounting to more than mere preparation, that tended but failed to effect the actual commission of the offense intended. See TEX. PENAL CODE ANN. §§ 15.01, 22.021 (Vernon Supp.2007). It was unnecessary that there be an actual child under fourteen involved in the offense, so long as Cook believed there was. See TEX. PENAL CODE ANN. §§ 15.01, 22.021. Even though the minor Kacy did not exist, Cook took every step he could have taken to commit the offense of aggravated sexual assault of a child. Had there been an actual thirteen-year-old girl, then what Cook intended to do would constitute a crime. Cook's goal was to commit the offense of aggravated sexual assault of a child, and he made every preparation to do so. Because aggravated sexual assault of a child is a crime, Cook's attempt to commit it was a crime. TEX. PENAL CODE ANN. § 15.01; Chen v. State, 42 S.W.3d 926, 930 (Tex.Crim.App.2001); United States v. Farner, 251 F.3d 510, 512 (5th Cir.2001); Smith v. State, Nos. 03-05-00399-CR & 03-05-00400-CR, 2006 WL 663712, 2006 Tex.App. LEXIS (Tex.App.-Austin Mar. 16, 2006, pets. ref'd [2 pets.]) (mem. op., not designated for publication). Second, there is ample and sufficient evidence that Cook knew Kacy represented her age to be thirteen and that he believed she was under age. The chat logs introduced in evidence, which were authenticated and confirmed by witness testimony, show that on multiple occasions, Kacy indicated she was thirteen. Additionally, Cook personally acknowledged in the chats on at least two occasions that Kacy was thirteen. Also, Kacy told Cook that she attended junior high school, and Cook told Kacy if they had the sexual encounter and it became known, he would go to prison for a long time because she was "under 16." Cook testified he never saw the online statements that Kacy was thirteen, but instead, what he saw was "18." He also testified that the online admissions showing that he knew Kacy represented her age to be thirteen were not made by him, but must have been made by someone else on his computer. Despite these denials, there is legally and factually sufficient evidence to justify the jury in choosing to disbelieve Cook's assertions in this regard. *850 Cook next argues that his rights to notice and due process were violated because the indictment did not allege and the proof did not show a specific person as the child mentioned in the indictment. This argument is without merit. First, the indictment alleged all the essential elements of attempted aggravated sexual assault of a child. It was not necessary to allege all of the elements of the intended crime; only the elements of the attempt. Young v. State, 675 S.W.2d 770, 771 (Tex.Crim. App.1984). Second, if Cook believed the indictment did not afford him sufficient notice of the intended victim's identity, he was required to object to the form or substance of the indictment before trial, or waive his right to complain of that defect either at trial or on appeal. See TEX.CODE CRIM. PROC. ANN. art. 1.14(b) (Vernon 2005); State v. Oliver, 808 S.W.2d 492, 493-94 (Tex.Crim.App.1991). Having failed to object to the indictment as to this alleged defect, Cook has waived his complaint. See Studer v. State, 799 S.W.2d 263, 273 (Tex.Crim.App.1990). Concerning the failure to identify a specific child, we have already shown that such is not necessary for a conviction of criminal attempt. Chen v. State, 42 S.W.3d at 930. Cook next asserts that the indictment erroneously blended two offenses. He argues that the indictment, in addition to alleging attempted aggravated sexual assault of a child, also included elements of the offense of online solicitation of a minor. See TEX. PENAL CODE ANN. § 33.021 (Vernon Supp.2007). It is this "blending" of two offenses that Cook argues is erroneous. We respectfully reject this argument. The indictment here alleges all of the essential elements of the offense of attempted aggravated sexual assault of a child. The inclusion of allegations relating to online solicitation of a minor is mere surplusage and do not invalidate the indictment. If the inclusion of the solicitation allegations produced any confusion for Cook in preparing to defend the charge against him, he should have made a pretrial motion to quash or other objection. He did not, so he has waived any complaint in that regard. We next consider the contention that Section 33.021 of the Texas Penal Code is overbroad and vague and therefore violates the free speech guarantees of the United States Constitution and the Texas Constitution. See U.S. CONST. amend. I; TEX. CONST. art. I, § 8. We overrule this contention. Cook has no standing to complain of the unconstitutionality of Section 33.021. He was convicted of attempted aggravated sexual assault of a child, not online solicitation of a minor, so he has not been harmed by any possible constitutional infirmity of the online solicitation of a minor statute. Cook also complains of the trial court's charge to the jury in this case, which he asserts contains elements of two different offenses. Cook did not object to the charge at the time of trial, so in order to secure a reversal because of any defect in the charge, he must show that the charge as given caused him egregious harm. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984) (op. on reh'g). The charge here was not egregiously harmful. It tracked the allegations of the indictment. That is generally sufficient. Garcia v. State, 699 S.W.2d 589, 594 (Tex.App.-Houston [14th Dist.] 1985, pet. ref'd). The charge did contain some elements that were not required for the offense for which Cook was indicted, but that surplusage only possibly added to the State's burden. It did not harm Cook. The final contention is that the sentence violates the Constitutional protections against cruel and unusual punishment. The basis for this argument is that the two felony convictions used to enhance *851 the punishment were rendered in courts in the State of Illinois. Cook argues that Section 12.42(c)(2)(B)(v) of the Texas Penal Code requires that when out-of-state convictions are relied on in a Texas criminal trial to enhance the punishment, it is incumbent on the prosecution to prove that the out-of-state convictions are for offenses substantially similar to offenses that would be felonies in Texas. TEX. PENAL CODE ANN. § 12.42(c)(2)(B)(v) (Vernon Supp. 2007); Ex parte White, 211 S.W.3d 316, 318 (Tex.Crim.App.2007). Reliance on this section of the Texas Penal Code is misplaced. That provision applies to persons convicted as habitual sexual offenders. The punishment in this case was enhanced under Section 12.42(d) of the Texas Penal Code. See TEX. PENAL CODE ANN. § 12.42(d) (Vernon Supp.2007). The "substantially similar" requirement is not applicable to enhancements under Section 12.42(d). In addition, a plea of "true" by a defendant to an enhancement paragraph is sufficient to satisfy the State's burden of proof as to the convictions alleged for enhancement purposes. Simmons v. State, 493 S.W.2d 937 (Tex.Crim.App.1973). In this case, Cook pleaded true to the enhancement paragraphs, and the State offered evidence in the form of a stipulation signed by Cook and his attorney. In that stipulation, Cook admitted that he had previously been convicted of two felonies of the third degree. Also, the trial court admonished Cook about the stipulation and the plea of true. During that admonishment, Cook was advised that if he entered a plea of true to the enhancement paragraphs, his punishment could be enhanced from two to twenty years "way up" to from two to ninety-nine years or life. Cook responded that he understood that and it was what he wanted to do. In view of Cook's plea of true to the enhancement paragraphs, as well as his stipulation and testimony and failure to object, he has waived any complaint as to the nature and authenticity of the out-of-state convictions to enhance his punishment. For all the reasons stated heretofore, we affirm the judgment of the trial court. NOTES [*] William J. Cornelius, Chief Justice, Retired, Sitting by Assignment.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2344559/

921 A.2d 500 (2007) Joan ZAMPANA-BARRY, Appellee v. Hugh A. DONAGHUE, Esquire, and Donaghue & Bradley, Appellants. Superior Court of Pennsylvania. Filed March 8, 2007. Argued August 29, 2006. Reargument Denied May 18, 2007. *501 John J. Hare, Philadelphia, for appellants. BEFORE: KLEIN, BOWES and KELLY, JJ. OPINION BY BOWES, J.: ¶ 1 Hugh A. Donaghue, Esquire, and Donaghue & Bradley, a law firm ("Appellants"), appeal the September 14, 2005 order[1] refusing to transfer this action from Philadelphia County to Delaware County. Appellants maintain that venue in Philadelphia County was improper under Pa. R.C.P. 2179. We affirm. ¶ 2 On April 27, 2005, Appellee, Joan Zampana-Barry, instituted this action against Appellants in the Philadelphia County Court of Common Pleas alleging that Appellants had negligently represented her in a legal action against K-Mart. Specifically, Appellee alleged that Appellants filed a personal injury action on her behalf against K-Mart, K-Mart subsequently filed for bankruptcy, Appellants failed to protect her right to proceed against K-Mart in the bankruptcy action, and as a result, summary judgment was granted to K-Mart in the personal injury action. ¶ 3 Appellants filed preliminary objections arguing that venue in Philadelphia County was improper pursuant to Pa. R.C.P. 1006(b) and 2179(a)(2), which pertain to venue over a corporation or other *502 similar entity. Following an evidentiary hearing, the trial court overruled the objections and determined that Philadelphia County could assert venue over Appellants because they regularly conduct business in that county. This appeal followed, wherein Appellants claim that the trial court abused its discretion in sustaining venue in Philadelphia County because the record establishes that Appellants have never regularly conducted business there. ¶ 4 Initially, we need to clarify two points. First, it is unclear from the record whether the law firm is a corporation or a partnership. Pa.R.C.P. 1006(b) provides, "Actions against the following defendants, except as otherwise provided in subdivision (c), may be brought in and only in the counties designated by the following rules: political subdivisions, Rule 2103; partnerships, Rule 2130; unincorporated associations, Rule 2156; corporations and similar entities, Rule 2179." Subdivision c of that rule relates to "an action to enforce a joint or joint and several liability against two or more defendants." ¶ 5 Thus, Pa.R.C.P. 2130 contains the provisions relating to venue over partnerships while Pa.R.C.P. 2179 governs corporations and other similar entities. Appellee's complaint, which was not answered due to the filing of preliminary objections, indicates that the law firm is a partnership, which would subject it to the venue provisions of Pa.R.C.P. 2130.[2] However, Appellants have consistently maintained that venue was improper under Pa.R.C.P. 2179(a),[3] which, as noted, governs venue against a corporation or similar entity. During the hearing on this matter, the attorney for Appellants referred to the principals of the law firm as both partners and shareholders. N.T. Hearing, 9/12/05, at 4, 14, 19. Thus, we are not able to ascertain whether the law firm is a partnership or a corporation. ¶ 6 Appellee premised venue in Philadelphia on the ground that the law firm regularly conducted business in that county. As noted, Pa.R.C.P. 2130 allows for venue against a partnership in "a county where it regularly conducts business," and identical language appears in Pa.R.C.P. 2179. Therefore, we review the same legal question regardless of which rule is applied. The fact that the precise nature of the entity is not established does not impact on the applicable principles in this appeal. *503 ¶ 7 We also must clarify an additional matter before proceeding further. Appellants did not move to transfer this action based on forum non conveniens. A change of venue based on forum non conveniens may be sought under Pa.R.C.P. 1006(d)(1), which states, "For the convenience of parties and witnesses the court upon petition of any party may transfer an action to the appropriate court of any other county where the action could originally have been brought." As noted, the issue on appeal is whether the trial court properly determined that venue over the law firm can be maintained under Pa.R.C.P. 1006(b); Pa.R.C.P. 1006(d) is thus not implicated in this appeal. ¶ 8 Nevertheless, a good deal of Appellants' argument is devoted to a discussion of facts impacting the doctrine of forum non conveniens and not the question of venue presented on appeal. For example, Appellants argue that "all the events giving rise to this litigation occurred in Delaware County. Plaintiff resides in Delaware County, the defendants reside and work in that County, the parties executed their retainer agreement in that County, they held their meetings in that County, and all legal services were provided in that County." Appellants' brief at 8-9. These matters are irrelevant to whether Appellants regularly conducted business in Philadelphia. Rather, they are pertinent only to whether Delaware County is a more convenient forum and whether venue should be transferred under Pa.R.C.P. 1006(d). See Cheeseman v. Lethal Exterminator, Inc., 549 Pa. 200, 701 A.2d 156, 162 (1997). We therefore do not consider them in our analysis. Fritz v. Glen Mills Schools, 840 A.2d 1021 (Pa.Super.2003) (where issue was whether venue was proper under Pa.R.C.P. 2179 and not one of forum non conveniens, Superior Court will not discuss why either county at issue would be a more convenient forum for litigation). ¶ 9 We now address whether the trial court correctly refused to transfer venue under Pa.R.C.P. 1006(b). The trial court is accorded "considerable discretion in determining whether or not to grant a petition for change of venue, and the standard of review is one of abuse of discretion." Purcell v. Bryn Mawr Hospital, 525 Pa. 237, 242, 579 A.2d 1282, 1284 (1990). The plaintiff's choice of forum is given great weight. Singley v. Flier, 851 A.2d 200, 201 (Pa.Super.2004). Thus, the party seeking a change of venue "bears the burden of proving that a change of venue is necessary, while a plaintiff generally is given the choice of forum so long as the requirements of personal and subject matter jurisdiction are satisfied." Purcell, supra at 243, 579 A.2d at 1284. ¶ 10 In determining whether a corporation or partnership regularly conducts business in a county, we employ a quality-quantity analysis. Id. (applying Shambe v. Delaware and Hudson Railroad Co., 288 Pa. 240, 135 A. 755 (1927), Monaco v. Montgomery Cab Co., 417 Pa. 135, 208 A.2d 252 (1965), and Law v. Atlantic Coast Line Railroad Co., 367 Pa. 170, 79 A.2d 252 (1951), to determine whether a corporation regularly conducted business in a county). A business entity must perform acts in a county of sufficient quality and quantity before venue in that county will be established. Purcell, supra. Quality of acts will be found if an entity performs acts in a county that directly further or are essential to the entity's business objective; incidental acts in the county are not sufficient to meet the quality aspect of the test. Id. Acts that aid a main purpose are collateral and incidental while those necessary to an entity's existence are direct. Id. (incidental acts include advertising, solicitation of business from a county, *504 education programs for personnel in county, hiring of personnel from the county, and purchase of supplies from county); see also Krosnowski v. Ward, 836 A.2d 143, 147 (Pa.Super.2003) (en banc) (business referrals to and from an independently operated business entity in another county do not establish venue in that county as referrals were in aid of main business purpose and not actual conduct of business in that county). Quantity of acts means those that are sufficiently continuous so as to be considered habitual. Purcell, supra. Each case must be based upon its own individual facts. Id. ¶ 11 We now review the evidence relied upon by the trial court: On September 14, 2005, a hearing on the issue of venue was conducted. Donaghue testified that the partnership was in the business of providing legal representation. Transcript, pp. 20-21. He stated, "Representing clients is essential to my business because I'm a lawyer. That's what I do." Transcript, pp. 25-26. Donaghue testified that less than three percent (3%) of the cases handled by him had contact with Philadelphia. Transcript, p. 15. Those cases represent three percent (3%) of the partnership's gross revenue since 1999. The percentage of net revenue was not provided. Transcript, pp. 9, 18. The raw numbers underlying the percentages testified to and the calculations related thereto were not provided. No accounting evidence was offered to substantiate these claims. Donaghue admitted that he has appeared and will continue to appear before the United States District Court for the Eastern District of Pennsylvania (sitting in Philadelphia) as solicitor for: Chadds Ford Township, Concord Township and Haverford Township in Delaware County. Transcript, pp. 13, 15-16. The number of years Donaghue served as a legal representative for the township was not provided. As well, Donaghue appeared and will continue to appear in the Philadelphia County Court of Common Pleas and the Superior Court of Pennsylvania as a litigator. Transcript, pp. 16, 23-25. Further Donaghue provided an additional affidavit listing 16 cases in which he represented various parties in the federal court sitting in Philadelphia. Donaghue's partner, James P. Bradley, Esquire ("Bradley"), submitted an affidavit indicating that income generated in 2003 and 2004 by "Philadelphia cases" amounted to "no more than 3% of the firm's overall gross revenue." The criteria for labeling matters "Philadelphia cases" were not provided (i.e. were these cased; initiated in Philadelphia and removed to Delaware County; litigated in Philadelphia; or involved residents of Philadelphia). Unlike the affidavits submitted by Donaghue and Bradley, the third partner, Michael Egan's affidavit failed to provide the number or percentage of "Philadelphia cases" he handled as a partner. While the affidavit noted that "presently" Mr. Egan had no active cases in Philadelphia County, no definitive time frame was attributed to the term "presently." Trial Court Opinion, 3/20/06, at 2-3. On appeal, Appellants confirm the veracity of this information by agreeing that approximately three to five percent of the law firm's income was derived from cases filed in Philadelphia County. Appellants' brief at 7. ¶ 12 We conclude that the trial court did not commit an abuse of discretion when it determined that the law firm's acts were of sufficient quality to meet the requisite standard. The purpose of a law firm is to *505 perform legal services, and the law firm concededly performed legal services in Philadelphia County. Indeed, Mr. Donaghue admitted, "Representing clients is essential to my business because I'm a lawyer." N.T. Hearing, 9/14/05, at 25-26. Representing clients is precisely what Appellants do in Philadelphia. ¶ 13 Appellants rely upon Goodman v. Fonslick, 844 A.2d 1252, 1253 (Pa.Super.2004).[4] In that case, we affirmed a trial court's transfer of a case to Montgomery County where the plaintiffs had instituted an action in Philadelphia County against a Montgomery County hospital. The plaintiffs had sought venue in Philadelphia County over the hospital based upon the facts that the hospital advertised in the county and owned an interest in two small physician's offices in Philadelphia. As noted, under Purcell, advertising is considered an incidental rather than direct act. In Goodman, we concluded that the mere fact that the physician's offices were located in Philadelphia did not constitute sufficient business contacts to support venue because there was no evidence that the two groups, totaling six to eight physicians, were clinics or branch offices of the hospital. Moreover, hospital care was not provided at those offices. We held that the hospital's business relationship with these small Philadelphia County practice groups was incidental to its main goal of providing hospital care. ¶ 14 In the present case, there could be no clearer example of an act that is performed in furtherance of its business purpose than a law firm entering a county to represent a client. The sole objective of this law firm is to represent people in legal actions, and that action was precisely what Appellants did in Philadelphia County. Appellants counter that the firm's purpose was to provide legal services to clients in Delaware County where it conducted ninety-five to ninety-eight percent of its business. However, the fact that it represented clients in Delaware County, which would permit that county to exercise venue, does not defeat the fact that the law firm entered Philadelphia County in direct furtherance of its business purpose, thus allowing for venue in Philadelphia County. ¶ 15 That venue was present in Delaware County did not negate the existence of venue in Philadelphia County. Otherwise, there would be only one county with venue over an action against a corporation or partnership, which would be in direct conflict with the language of the pertinent rules. The rules confer venue in "a" county where the business entity regularly conducts business rather than "the" county where the entity regularly conducts business. *506 ¶ 16 Herein, this law firm could not exist unless it provided legal services to clients, and the acts that Appellants performed in Philadelphia were concededly essential to the law firm's existence. The acts were not incidental acts, such as advertising, hiring personnel, conduct of an unrelated enterprise such as selling insurance, training personnel, or referrals to and from other law firms in Philadelphia County. The law firm entered Philadelphia County in furtherance of its only business objective, which was to provide legal services to clients. ¶ 17 Thus, the trial court properly found the acts were of sufficient quality to confer venue over this action in Philadelphia County because the law firm practiced law in Philadelphia. Accord Monaco, supra at 143, 208 A.2d at 256 (where taxi company entered Philadelphia County to drop off customers, trial court erred in failing to find that it regularly conducted business there since "the acts of driving into Philadelphia County at the request of customers and collecting fares there were acts directly essential to and in furtherance of corporate objects and, therefore, were of sufficient quality"). Cf. Fritz, supra (fact that students from Philadelphia County traveled to Delaware County to attend defendant school, which was located in Delaware County, did not mean that school performed acts in furtherance of its main purpose in Philadelphia); Masel v. Glassman, 456 Pa.Super. 41, 689 A.2d 314 (1997) (hospital provided all of its medical services, which was its business objective, in Bucks County and patients from Philadelphia County traveled to its facilities in Bucks County). ¶ 18 We also conclude that the trial court did not abuse its discretion in finding that the law firm's acts were of sufficient quantity to sustain venue. Appellants have conceded that over the course of many years it has conducted approximately three to five percent of its legal services in Philadelphia. As the Supreme Court stated in Monaco, supra at 143, 208 A.2d at 256, "It must be remembered that it is the word `regularly' which we are construing and not `principally.' A corporation [or partnership] may perform acts `regularly' even though these acts make up a small part of its total activities." ¶ 19 The law firm consistently has generated approximately three to five percent of its gross business revenue from cases in Philadelphia County. In Canter v. American Honda Motor Corp., 426 Pa. 38, 231 A.2d 140 (1967), the Pennsylvania Supreme Court concluded that where a corporation regularly conducted one to two percent of its total business in a county, that percentage was sufficient to satisfy the quantity aspect of the venue test. ¶ 20 In view of the facts herein, we cannot conclude that the trial court committed an abuse of discretion in determining that Appellants' contacts with Philadelphia were of sufficient quality and quantity to find that they regularly conducted business in that county. ¶ 21 Order affirmed. ¶ 22 Judge KLEIN files a Concurring Opinion. CONCURRING OPINION BY KLEIN, J.: ¶ 1 I agree with the majority that the defendant law firm has satisfied the "quality" test for determining whether the firm regularly conducts business in Philadelphia County. I also agree that under the case law, we cannot say that the trial court abused its discretion in concluding that the law firm's acts in Philadelphia County satisfy the "quantity" test as well. ¶ 2 I write separately to note that in my opinion, there are no clear standards to *507 guide the trial court in determining whether or not the "quantity" test has been met. Our case law is inconsistent and lacks specific guidelines for determining the appropriate quantity of contacts necessary to obtain venue over a corporation under Pa. R.C.P. 2179(a)(2). Whether or not the "quantity" test has been met is determined more by the gut feeling of the trial judge rather than by any objective standard. I note this because I believe that the matter at least merits clarification by a Court en banc, if possible. ¶ 3 In this case, a suburban-based law firm derives only 3-5% of its total revenue from its work in Philadelphia County, and most of this work is representing suburban clients. As part of the representation of suburban clients, the attorneys sometimes have to come into Philadelphia County. Sometimes it is because the suburban client was sued in Philadelphia, so that is not exactly voluntary work. Sometimes they have to come into Philadelphia County because that is where the federal court that handles Delaware County matters sits. We certainly would not reverse the trial court if it had determined that this amount of business was small enough to fail the "quantity" test. As our case law has developed, it would be the rare case where we could say that the trial court erred no matter which way it ruled on the "quantity" test. I do not believe it serves justice to have such a loose standard. In many of these cases, it would be just as easy to achieve justice by going to the Atlantic City casinos and betting "red" or "black" on roulette as by having a judicial determination. ¶ 4 As the majority notes, "quantity of acts" means those that are so continuous and sufficient as to be considered habitual. A single act is not enough. The determination of what quantity is sufficient to confer venue must be made on a case-by-case basis. See Purcell v. Bryn Mawr Hosp., 525 Pa. 237, 579 A.2d 1282, 1285 (1990); Kisak v. Wheeling Park Comm'n, 898 A.2d 1083, 1086 (Pa.Super.2006), app. denied, 590 Pa. 669, 912 A.2d 838 (2006). The only problem is that there is no guidance in a close case. Is it 2%? 4%? 6%? 8%? It seems to depend less on the type of business than on the attitude of the trial judge. ¶ 5 Here, the trial court suggests that the "quantity" test is satisfied because the defendant law firm, which is located in Delaware County, has provided and is likely to continue providing legal services to its clients in Philadelphia courts. (Trial Court Op., 3/30/06, at 5.) Perhaps. However, the trial court does not address the actual amount of work performed by the defendants in Philadelphia County. It is undisputed that only 3-5% of the law firm's gross revenue over a ten-year period was derived from litigation in Philadelphia. ¶ 6 In reviewing the case law, there are some cases that say 1-2% of contacts in a particular county is enough to meet the "quantity" test, while others say 3% is not enough. A sampling of the relevant cases follows. Cases that do not meet the "quantity" test. • Singley v. Flier, 851 A.2d 200 (Pa.Super.2004): The plaintiff sued Villanova University in Philadelphia County on the ground that it held a few classes and a nursing practicum in Philadelphia. Notwithstanding the number of Philadelphia students who attend Villanova, because the university did not have a campus in Philadelphia, nor did it own or operate any real estate there, this Court held there was no proper venue in Philadelphia and affirmed the transfer to Delaware County. Id. at 203. *508 • Goodman v. Fonslick, 844 A.2d 1252 (Pa.Super.2004): This Court held that the defendant hospital's activities of providing a limited number of medical services to patients in Philadelphia was insufficient to confer venue in Philadelphia County. The Goodman Court emphasized that the hospital's corporate objective was to provide medical services to patients in Montgomery County, where the hospital is located. Id. at 1255. That seems similar to the instant case, where the objective of the law firm is to provide legal services to Delaware County clients and only go into Philadelphia when circumstances require it. • Masel v. Glassman, 456 Pa.Super. 41, 689 A.2d 314 (1997): This Court held that venue was improper in Philadelphia County where the defendant medical practice, which is located in Bucks County, derived only 3% of its gross revenue from Philadelphia residents, even though it also derived 20% of its revenue from Philadelphia third-party payors. Id. at 318. This is less activity than in the instant case. • Mathues v. Tim-Bar Corp., 438 Pa.Super. 231, 652 A.2d 349 (1994): This Court upheld a change of venue from Montgomery County to York County in an employment dispute between a salesman and his employer. The plaintiff sued his employer, which had offices in York and Adams Counties, for breach of contract in Montgomery County. The Court held that venue was improper there because the company's acts in Montgomery County were "isolated and limited" and only two or three sales transactions took place in Montgomery County. Id. at 351. • Battuello v. Camelback Ski Corp., 409 Pa.Super. 642, 598 A.2d 1027 (1991): This Court affirmed the transfer of venue from Philadelphia County to Monroe County in a case against a Monroe County ski resort. As a basis for venue in Philadelphia, the plaintiff asserted, among other things, that a Philadelphia-based company, Eastern Ski Tours, regularly sent its customers there. In concluding that the quantity test was not met, the Court noted that "only five percent of Eastern's customers are from Philadelphia" and "less than one percent of Camelback's business consists of skiers sent by Eastern." Id. at 1030. The Court also noted that "the number of Philadelphia season pass holders is extremely small in relation to the total number of season passes sold." Id. at 1029. Once again, the activity in the instant case is equally isolated. Cases that meet the "quantity" test. • Canter v. American Honda Motor Corp., 426 Pa. 38, 231 A.2d 140 (1967): The Supreme Court concluded that a car dealership that regularly conducted 1-2% of its total business in Philadelphia County was sufficient to satisfy the quantity test. Although the dealership was located in Delaware County, its acts of driving into Philadelphia to demonstrate cars and consummate sales were sufficient, even though they amounted to only 1-2% of its total business. Id. at 142-43. • Monaco v. Montgomery Cab Co., 417 Pa. 135, 208 A.2d 252 (1965): The Supreme Court concluded that a taxi company that collected 5-10% of its gross revenue from customer drop-offs in Philadelphia was sufficient to sustain venue in Philadelphia County. Although the company was prohibited from picking up passengers in Philadelphia, it was permitted to pick them up in Montgomery County and drop them off in Philadelphia. The Court stated, *509 "A corporation may perform acts `regularly' even though these acts make up a small part of its total activities." Id. at 256. This is similar to the instant case. ¶ 7 The cases are imprecise in their discussion of the appropriate quantity of contacts. Rather than focus on raw percentages, some courts compare the number and type of contacts with the company's overall business purpose, employing a hybrid "quality-quantity" analysis. For example, in Singley, supra, in affirming the venue transfer to Delaware County, this Court concluded: Although one cannot dispute that the instruction of students is Villanova's main purpose, we find that these limited classes and practical experience offered in Philadelphia County, but not at a satellite campus, do not satisfy either the quantity or quality test. 851 A.2d at 203; see also Goodman, supra. Under this standard, the law firm in this case would not be subject to venue in Philadelphia County. Conclusion ¶ 8 In my view, none of the cases offers any clear guidance for trial courts in determining what quantity of contacts is sufficient to confer venue over a corporation under Rule 2179(a)(2). It appears that a plaintiff can file suit against a corporate defendant in any county where it conducts any amount of business, even if it is as little as 1 or 2%. I am concerned about the precedent we are setting by allowing venue to stand in Philadelphia County against a primarily suburban law practice, where it is undisputed that none of the activities giving rise to the litigation arose in Philadelphia. We may be giving plaintiffs too much leeway in selecting a forum in which to litigate their claims against a corporation. ¶ 9 In light of the conflicting case law, I believe this issue should be considered by a Court en banc. For this reason, I am compelled to concur. NOTES [1] After the order was entered, Appellants petitioned the trial court for inclusion of the language in Pa.R.A.P. 311(b)(2) (party can file an appeal as of right from an order sustaining venue where court states in order that substantial issue of venue is presented). The trial court denied that request, but on January 31, 2006, this Court entered an order granting Appellants' petition for review of the interlocutory order. [2] Pa.R.C.P. 2130 (emphasis added) states: Except as otherwise provided by Rule 1006(a.1) [governing medical malpractice actions] and by subdivision (c) of this rule, an action against a partnership may be brought in and only in [relating to actions regarding real and personal property] a county where the partnership regularly conducts business, or in the county where the cause of action arose or in a county where a transaction or occurrence took place out of which the cause of actions arose or in the county where the property or a part of the property which is the subject matter of the action is located provided that equitable relief is sought with respect to the property. [3] That rule provides that except as provided in Pa.R.C.P. 1006(a.1), which relates to medical malpractice actions, or by subdivision (b) of Pa.R.C.P. 2179, which pertains to actions against insurance companies based upon insurance policies, an action against a corporation or other similar entity may only be brought in: (1) the county where its registered office or principal place of business is located; (2) a county where it regularly conducts business; (3) the county where the cause of action arose; (4) a county where a transaction or occurrence took place out of which the cause of action arose, or (5) a county where the property or a part of the property which is the subject matter of the action is located provided that equitable relief is sought with respect to the property. (Emphasis added). [4] Appellants also rely upon Singley v. Flier, 851 A.2d 200 (Pa.Super.2004), wherein the plaintiff sued a university in Philadelphia County. The university had only one campus, which was located in Delaware County, where it provided its educational services. All of the university's educational facilities and classrooms were located on that campus, and the university did not own or operate any real estate in Philadelphia. In Philadelphia, it had conducted a limited number of classes and a nursing practicum, but it did not maintain a campus in that county. We stated, "Although one cannot dispute that the instruction of students is [the university's] main purpose, we find that these limited classes and practical experience offered in Philadelphia County, but not at a satellite campus, do not satisfy either the quality or quantity test." Id. at 203. Although these educational activities did appear to further the entity's main purpose, thereby meeting the quality test ipso facto, Singley, when read as a whole, clearly rests on the fact that the Philadelphia activities of the university were so limited and dwarfed by its educational facilities and activities in Delaware County that the quantity aspect of the venue test was not satisfied. Here, both legs of the venue test are met.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2344581/

267 P.3d 383 (2011) 164 Wash.App. 668 Megan PELLINO, on behalf of herself and all others similarly situated, Respondent, v. BRINK'S INCORPORATED, Appellant. No. 65077-7-I. Court of Appeals of Washington, Division 1. November 7, 2011. *386 Jeffrey W. Pagano, Ira M. Saxe, New York, NY, Timothy Lee Ashcraft, Williams Kastner & Gibbs, Tacoma, WA, for Appellant David Bergman Brinks. Adam J. Berger, Maria Lorena Gonzalez, Martin S. Garfinkel, Seattle, WA, for Respondent. *387 SCHINDLER, J. ¶ 1 In this class action lawsuit against Brink's Incorporated, messengers and drivers of armored trucks allege they did not receive meal periods or rest breaks in violation of the Washington Industrial Welfare Act, chapter 49.12 RCW (IWA) and Washington Administrative Code (WAC) XXX-XXX-XXX. Brink's appeals the judgment entered in favor of the class members and the trial court's "Findings of Fact, Conclusions of Law, and Order." Brink's asserts the trial court (1) abused its discretion in certifying the class action, (2) erred in interpreting the legal requirements for meal periods and rest breaks, and (3) abused its discretion in relying on expert testimony. We affirm. FACTS ¶ 2 The findings of fact are not challenged on appeal. Brink's Incorporated provides armored vehicle security for transporting currency, negotiable instruments, and other valuables for its customers. Brink's employs a crew consisting of a driver and a messenger for each armored truck. Most new employees begin as drivers. The messenger is responsible for the currency and other valuables, which Brink's refers to as "liability," that are transported in the armored truck. The messenger and the driver carry a firearm. ¶ 3 Brink's management assigns a route to the driver and messenger for each armored truck. Typical duties for a route include delivering and picking up liability from banks, retail stores, and other customers; emptying and restocking ATMs (automated teller machines); and at the end of the business day, delivering currency to a central bank vault, known as a "bank-out." The findings state: Some routes may specialize in a single activity, like serving ATMs. Some routes have two components separated by a return to the branch. For example, a route might involve customer pick-ups and deliveries in the morning and early afternoon, followed by either a bank-out or a series of "deposit pulls" from ATMs. ¶ 4 Drivers and messengers engage in work activities "before and after each armored vehicle run that are necessary and indispensable to the run." These activities include: "[B]uying" or checking out liability, keys, firearms, radios, and paperwork from the vault, pre-trip inspection of the truck, and loading liability and coins before the run, and "selling" liability back to the vault, and completing and returning paperwork at the end of the run.... Some class members also were assigned to "opening crew," requiring them to arrive at and secure the branch in the morning, after which they proceeded to work on armored vehicle runs. ¶ 5 Brink's management schedules a mandatory start time for each route. "Although routes do not have a mandatory completion time, branch management constructs the routes to fit within an estimated stop time," often mid to late afternoon. The findings state: Some customers have contracts that require their pick-ups to be deposited at the bank vault on the same day. In order to meet the bank-out, crews collecting cash that must be delivered to a bank at the end of the day must return to the branch by mid to late afternoon. ¶ 6 The "Daily Guide Sheet" lists the stops Brink's management schedules for the route, "including any special pick-ups or deliveries." The driver is expected to fill in the time of arrival and departure for each stop during the day on the Daily Guide Sheet, as well as the number of items delivered or picked up. "Some guide sheets also contain notations on other stops made by crew members to refuel the truck, use the restroom, or eat, and some contain notations about events on the route, such as customer delays or traffic." Between stops, the messenger completes paperwork and prepares for the next stop. Messengers are also responsible for monitoring the crew's progress. ¶ 7 Brink's pays messengers and drivers for meal periods and rest breaks. Brink's posted a "Form 132" in the Seattle and Tacoma branch offices that describes "Working *388 Conditions and Benefits." The section entitled "Break Periods" states: The security and operational rules and procedures applicable to Brink's employees assigned to work on armored vehicle crews and in other positions remain in effect at all times during such break periods. ¶ 8 The primary duty of the drivers and messengers is to guard and protect the valuables transported in the armored trucks. Brink's instructs drivers and messengers: [T]o continuously observe their surroundings for potential threats, to anticipate and "take every possible precaution" against possible attack, and to be constantly suspicious of other vehicles and pedestrians, even persons who appear to be police officers, store employers, or innocuous pedestrians. The Brink's "Basic Blue Security Training" states: The act of guarding is a function to protect Brink's employees and other personnel and to safeguard Brink's property and the property of Brink's customers. It is the duty of all crew members to be alert for hazards that may endanger the security of fellow-employees and customer shipments. The "Handbook for Brink's Personnel" states, in pertinent part: The primary duty of every armed Brink's employee is to act as a guard. That is, to enforce against employees and other persons, rules to protect the property of Brink's or its customers or to protect the safety of persons through the use of force up to and including deadly force. The Handbook also states: Keep in mind the fact that you must not only be alert, you must look alert. Only in this way can you convince the criminal element that it would be foolhardy to attack your crew or premises. ¶ 19 Brink's prohibits drivers and messengers from engaging in any personal activities while on duty during the day. The Handbook states: 3.080 READING MATERIAL AND PERSONAL ITEMS Employees, while on duty, are forbidden to carry books, magazines, newspapers, personal radios, tape players, tape recorders, personal cell phones, personal pagers, personal computers, etc. 3.090 PERSONAL BUSINESS Making purchases, paying bills or engaging in any personal business is prohibited for any member of an armored vehicle crew while on duty. ¶ 10 On April 24, 2007, Megan Pellino filed a class action lawsuit against Brink's on behalf of herself and other class members who worked as a crew member for Brink's on armored trucks in the Seattle and Tacoma branches. The complaint alleged that Brink's willfully failed to provide the crew members rest and meal breaks in violation of the IWA; WAC 296-126-092; the Minimum Wage Act, chapter 49.48 RCW; and the Wage Rebate Act, chapter 49.52 RCW.[1] ¶ 11 Pellino filed a motion for class certification under CR 23. Brink's opposed the motion. The trial court granted the motion for class certification. The order addresses numerosity, commonality, typicality, and adequacy of representation. The court defined the class and the time period as follows: [A]ll drivers and messengers who were employed by Brink's Incorporated in its Seattle or Tacoma branches during the class period of April 26, 2004 through October 31, 2007. After notifying potential class members, the class consisted of 182 messengers and drivers who worked at Brink's from April 26, 2004 through October 31, 2007 in either the Seattle or the Tacoma branch. ¶ 12 Pellino filed a motion for summary judgment asserting that Brink's failed to provide rest breaks and meal periods in violation of the requirements of state law. Pellino argued Brink's required drivers and messengers to actively work and remain vigilant during meal and rest breaks. Pellino also argued that the work demands while on the scheduled routes do not allow the drivers and messengers to take meal periods or rest breaks. *389 ¶ 13 Brink's filed a cross motion for summary judgment asserting that it had adopted rules for break procedures; that Brink's paid the drivers and messengers for the entire workday; that meal and rest breaks are a part of the schedule for the route; and that because the crew is in charge of the route, the driver and the messenger have the discretion to decide when to take breaks. The trial court denied the cross motions for summary judgment. ¶ 14 The 14-day bench trial began on November 9, 2009. Pellino argued that (1) class members did not receive "the requisite break time, because of the number of stops on the armored car runs and operational and security pressures to keep the trucks moving and complete the runs in a timely manner;" and (2) even if class members received meal periods and rest breaks, those breaks were "not legally sufficient[]. because they were required to remain on active duty guarding the armored vehicle and its contents throughout any break." ¶ 15 Eight representative class members testified on behalf of the class. Four of the class members who testified worked in the Seattle branch, and the other four worked in the Tacoma branch. One of the witnesses, Michael Jaquish, had also worked as a part-time supervisor and trainer of new messengers and drivers. In addition, Dr. Robert Abbott presented statistical evidence based on his analysis of the Daily Guide Sheets, and Dr. Jeffrey Munson, a database and data management expert, testified about the calculation of damages. At the conclusion of the case on behalf of the class members, the court denied Brink's motion to dismiss and decertify the class. In the case on behalf of Brink's, the defense introduced into evidence deposition excerpts from branch managers. ¶ 16 On January 7, 2010, the court ruled in favor of the class members. On March 9, the court entered "Findings of Fact, Conclusions of Law, and Order." The 55-page order contains 62 findings of fact and 75 conclusions of law. ¶ 17 The trial court found the testimony representative of the class members "that messengers and drivers are expected to carry out this primary job function of guarding at all times when they are out on their routes, including whenever they are using the bathroom, purchasing food, or eating" credible, and that the testimony was corroborated by the deposition and documentary evidence admitted at trial. The findings state that Brink's required the messengers and drivers "to be vigilant and alert at all times and to guard the cash and other valuables entrusted to Brink's by its customers continuously while on their runs." ¶ 18 The court rejected Brink's argument that vigilance only required a "passive state." The court found the evidence established that the vigilance required by Brink's is "active observation and mental exertion at all times." Drivers and messengers are instructed to continuously observe their surroundings for potential threats, to anticipate and "take every possible precaution" against possible attack, and to be constantly suspicious of other vehicles and pedestrians, even persons who appear to be police officers, store employees, or innocuous pedestrians. The findings state that in order to ensure constant vigilance, Brink's prohibits all personal activities when on the route, except eating, drinking, and smoking in the armored truck. The court cited the provisions in the Handbook as corroborating evidence that crew members are forbidden from "engaging in any personal business" while on duty. The court states the evidence established violation of the Handbook is grounds for termination. ¶ 19 The trial court also rejected Brink's argument that vigilance is primarily for the benefit of the driver and the messenger. The court found that Brink's requires the crew to exercise vigilance to safeguard the currency, valuables, and property of the customers. Because the driver and the messenger must always remain vigilant, as well as perform a number of additional duties while on the route, the court found that crew members "were always engaged in active work duties when on the armored vehicles." Accordingly, "there is no time during a run when drivers and messengers can relax, engage *390 in personal activities, or simply focus on eating." ¶ 20 Citing the credible and consistent testimony of the representative class members who testified, the court also found that regardless of the requirement to constantly remain vigilant, there was insufficient time to take breaks. [T]here was insufficient time for armored truck crew members to take meal periods and rest breaks and that management pushed crews to keep moving for security and business reasons. Class members were trained not to stop the vehicle for any longer than necessary in order to minimize its exposure as a target. The findings also state that "[t]he length of the routes and the number of stops ... precluded crews from taking rest stops or meal breaks," and Brink's trained the crews to stop the truck only long enough to complete the stop, both for security reasons and to "maintain the profitability of the branch." "The expectation was 12 stops per hour, approximately five minutes per stop." The evidence established that Brink's managers instructed crews not to stop the truck for breaks, but to "eat on the go." "Supervisors would check the progress of trucks throughout the day and urge crews to hurry up to remain on schedule and meet the bank-out deadline." As a result of the operational and security practices ..., drivers and messengers did not receive actual meal breaks, but ate while the truck was moving or, for drivers, during the brief periods while the messenger was making pick-ups or deliveries at a stop.... Crew members testified they never stopped the truck solely for the purpose of eating or resting.... Generally, truck crews also received no rest breaks other than occasionally running to the bathroom or grabbing food or drink to go at a stop along the route. ¶ 21 Taking into consideration the testimony of the Brink's managers that an extra 50-minute break time was included in the schedule for each route, the findings state that even if an extra 50 minutes were provided, because "of the need to remain vigilant," drivers and messengers could not take a break at the same time, and 50 minutes was not sufficient for the mandated breaks. The trial court found that "[t]he class members consistently testified that the total amount of time they generally spent on such bathroom or food stops was between three and ten minutes per day." To avoid "the negative consequences of returning late to the branch, truck crews were compelled to minimize the time spent" on taking breaks. Consequently, crew members "would not wait in line when purchasing food," and would only "use restrooms in easily accessible locations." A former branch manager testified that the "culture" of the company is to not take breaks. ¶ 22 The findings state that Dr. Abbott's analysis of the Daily Guide Sheets corroborated the absence of adequate rest and meal breaks and the duration of the stops. Statistical analysis shows the aggregate average of the duration of the recorded stops for meal periods and rest breaks each day was 8.3 minutes. The court accepted Dr. Abbott's testimony based on his statistical analysis of the Daily Guide Sheets. The court also cites to the testimony of a number of former branch managers who testified "that crew members were instructed to record rest breaks and meal periods on the daily guide sheets for tracking and accountability purposes." The court also notes "[t]his testimony is unrebutted." ¶ 23 The court concluded that Brink's violated the IWA and WAC 296-126-092 because class members were always "engaged in active work duties when on the armored vehicles." Class members in this case never received lawful breaks because they were always engaged in active work duties when on the armored vehicles, specifically, guarding and being vigilant (e.g., scanning their routes and surrounding areas, being alert and giving the appearance of alertness, looking out of windows, and maintaining communications with fellow crew members when apart). Class members had to be on watch for attack at almost every moment of their workday and be expected to respond with deadly force. *391 Accordingly, the court concluded the drivers and messengers did not receive any break "from mental and physical exertion and no opportunity for personal relaxation, activities or choice." Even when crew members went to the bathroom, it was a hurried process. When they ate, they could not be outside the truck and could not have a real lunch break. Remaining on active guard duty throughout such "breaks" compromises the purpose of rest and meal periods, because there is no relief from mental or physical exertion and no opportunity for personal relaxation, activities or choice. Thus, any time class members spent going to the restroom or eating while working in the truck does not constitute lawful break time under Washington law. ¶ 24 Regardless of the requirement to actively guard and remain vigilant, the court also concluded that the evidence established Brink's engaged in a class-wide pattern or practice of failing to provide sufficient "rest and meal break minutes" during the work day. The Court also concludes that Plaintiff has proven a classwide pattern or practice of failure to provide class members with sufficient rest and meal break minutes during their workdays, irrespective of the requirements of active guarding. This failure was the result of training, operational requirements and pressures imposed by Brink's management, including the length and number of stops on the routes, restrictions on stopping the truck for more than a few minutes at a time, and the pressure to meet bank-out deadlines. . . . The Court is persuaded by a preponderance of the evidence that, almost all the time, the employees just did not take meal breaks or rest breaks, because they were so concerned about security and about finishing the route and getting back on time. If they did take a meal or rest break, it was interrupted and never concluded. The Court concludes that Plaintiff has proved this on a classwide basis, regardless of whether or not any burden-shifting is appropriate as applied under the FLSA (Fair Labor Standards Act) and set forth in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S. Ct. 1187, 90 L. Ed. 1515 (1946). ¶ 25 The court entered a judgment in favor of the class members for $874,775.70 in back pay, $422,536.75 in prejudgment interest, and $799,155.98 in attorney fees and costs. Brink's appeals. ANALYSIS ¶ 26 Brink's contends the trial court (1) abused its discretion in certifying the class and denying the motion to decertify, (2) erred in interpreting the legal requirements for meal periods and rest breaks, and (3) abused its discretion by relying on the expert testimony.[2] Standard of Review ¶ 27 Where the trial court has evaluated evidence, our review is limited to determining whether the findings are supported by substantial evidence and, in turn, whether those findings support the conclusions of law. Standing Rock Homeowners Ass'n v. Misich, 106 Wash.App. 231, 242-43, 23 P.3d 520 (2001). We draw reasonable inferences from the facts in favor of the trial court's determination. Henry v. Bitar, 102 Wash.App. 137, 142, 5 P.3d 1277 (2000). Because Brink's does not assign error to any of the trial court's findings of fact, the findings of fact are verities on appeal. Moreman v. Butcher, 126 Wash.2d 36, 39, 891 P.2d 725 (1995). We review issues of law de novo. Perry v. Costco Wholesale, Inc., 123 Wash.App. 783, 792, 98 P.3d 1264 (2004). Class Certification ¶ 28 Brink's contends the trial court abused its discretion in certifying the class action and denying the motion to decertify. We review the decision to certify a *392 class action for manifest abuse of discretion. Lacey Nursing Ctr., Inc. v. Dep't of Revenue, 128 Wash.2d 40, 47, 905 P.2d 338 (1995). We will uphold the trial court's decision if the record shows that the court considered the criteria for class certification, and the decision is based on tenable grounds and is not manifestly unreasonable. Lacey Nursing Ctr., 128 Wash.2d at 47, 905 P.2d 338. A defendant may move for decertification at any point in the proceedings. Oda v. State, 111 Wash.App. 79, 91, 44 P.3d 8 (2002). ¶ 29 In order to certify a class action under CR 23, the plaintiffs must show numerosity, commonality, typicality, and adequacy of representation. CR 23(a). Commonality is satisfied when the alleged facts indicate that the defendant was engaged in a "`common course of conduct' in relation to all potential class members." Oda, 111 Wash. App. at 91, 44 P.3d 8[3] (quoting King v. Riveland, 125 Wash.2d 500, 519, 886 P.2d 160 (1994)). Under CR 23(a)(2), the court must conclude "there are questions of law or fact common to the class." The court must also find that one of the alternatives under CR 23(b) is met. Individual class members can present evidence to demonstrate a common course of conduct by the defendant. Miller v. Farmer Bros. Co., 115 Wash.App. 815, 825, 64 P.3d 49 (2003). ¶ 30 Brink's argues that the court abused its discretion in certifying the class because it did not have a "uniform rule or policy on breaks" and the drivers and messengers had the discretion to decide when to take breaks. Brink's asserts that because the decision of when to take breaks "varied from employee to employee," breaks were "characterized by a lack of uniformity,"[4] and do not establish commonality under CR 23. As to commonality and whether the complaint alleged a "common course of conduct," the court concluded that "[t]he principal factual and legal issues are whether class members are entitled to compensation for . . . missed rest and meal breaks under Washington law." The court also concluded that the requirements of CR 23(b)(3) were met because questions of fact common to the members of the class predominated over questions affecting individual members, and a class action was superior to the other available means to fairly and efficiently adjudicate the controversy. ¶ 31 The record shows the court engaged in a "rigorous analysis" in determining that Pellino met the requirements of CR 23. Oda, 111 Wash.App. at 93, 44 P.3d 8. The trial court concluded that questions of law or fact common to class members predominate and certified the class under CR 23(b)(3). Moreover, CR 23 does not require "that the shared questions of law or fact be identical" as to each individual class member. Miller, 115 Wash.App. at 824, 64 P.3d 49.[5] ¶ 32 We also reject the argument that Pellino's claim was not typical of the class because her breaks varied from those of the class. Typicality is satisfied if the claim "`arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if his or her claims are based on the same legal theory.'" Smith v. Behr Process Corp., 113 Wash.App. 306, 320, 54 P.3d 665 (2002)[6] (quoting In re Am. Med. Sys., 75 F.3d 1069, 1082 (6th Cir.1996)). The findings establish that Pellino could "establish liability by using representative evidence to prove a pattern or practice of violations by the defendant with respect to the class." And as the trial court noted, "[t]he consistency of the class member testimony regarding the policies and practices at Brink's with respect to rest and meal *393 breaks confirms its representative nature." We conclude the court did not abuse its discretion in certifying the class action or in denying the motion to decertify. IWA and WAC 296-126-092 ¶ 33 Brink's contends the trial court erred in interpreting the requirements of WAC 296-126-092, and concluding that the class members did not receive lawful meal and rest breaks. Brink's also asserts that the court conflated the requirements of working "on-duty" with working "on-call" in concluding that the regulations allowing intermittent rest breaks do not apply, and the court erred in concluding that class members did not waive their right to meal periods and rest breaks. ¶ 34 Washington State has a "long and proud history of being a pioneer in the protection of employee rights." Drinkwitz v. Alliant Techsys., Inc., 140 Wash.2d 291, 300, 996 P.2d 582 (2000). Remedial statutes protecting employee rights must be liberally construed. Internat'l Ass'n of Fire Fighters, Local 46 v. City of Everett, 146 Wash.2d 29, 35, 42 P.3d 1265 (2002). In construing the meaning of a provision in a wage statute, chapter 49.48 RCW, the supreme court states: A liberal construction requires that the coverage of the statute's provisions "be liberally construed [in favor of the employee] and that its exceptions be narrowly confined." Peninsula Sch. Dist. No. 401 v. Pub. Sch. Employees, 130 Wash.2d 401, 407, 924 P.2d 13 (1996). . . . "When interpreting statutory language, the goal of the court is to carry out the intent of the Legislature." Ellerman v. Centerpoint Prepress, Inc., 143 Wash.2d 514, 519, 22 P.3d 795 (2001). . . . "In ascertaining this intent, the language at issue must be evaluated in the context of the entire statute." Id. Fire Fighters, Local 46, 146 Wash.2d at 34-35, 42 P.3d 1265.[7] ¶ 35 Under the IWA, all employees shall be "protected from conditions of labor which have a pernicious effect on their health." RCW 49.12.010. The director of the Department of Labor and Industries (DL & I) is responsible for administering and enforcing "all laws respecting the employment and relating to the health, sanitary conditions, surroundings, hours of labor, and wages of employees employed in business and industry." RCW 43.22.270(4). DL & I enacted regulations in chapter 296-126 WAC to protect employee health, safety, and welfare as authorized under chapter 49.12 RCW. ¶ 36 Brink's challenges the court's interpretation of the language used in WAC 296-126-092 that "[e]mployees shall be allowed" meal periods and rest breaks to mean "the employer does have an affirmative obligation to make sure [rest and meal periods] are provided and taken," and class members "never received lawful breaks because they were always engaged in active work duties when on the armored vehicles, specifically, guarding and being vigilant."[8] The trial court's conclusions of law state, in pertinent part: However, Washington law on rest and meal breaks is clear. Because of the security *394 requirements and scheduling issues involved in these jobs, the class members were always on active duty and never received lawful breaks. . . . Class members were required by company policy and practice to engage in such work even while eating, going to the bathroom, or making stops to get food or drink. They also were never permitted to enjoy personal activities or make personal choices regarding how to spend their time during any part of their work day, including during such "breaks." The deposition testimony of the managers was quite clear that when class members were out on the vehicles, they were always on duty and always required to be vigilant. . . . With respect to meal periods, the Court concludes there is no evidence that any truck crew received the required 30 minutes (or more, depending on the duration of the work period) of meal time per class member on either an uninterrupted or intermittent basis. With respect to rest breaks, there also is no evidence that class members received at least ten minutes of uninterrupted break time during the day except on very rare occasions. These rare occasions are not sufficient to undermine the existence of the classwide pattern or practice of failure to receive adequate break time. . . . . . . Similarly, the fact that drivers and messengers were able to eat while the truck was in motion or that drivers could eat while the messenger was making a pick up or delivery does not mean that they received lawful breaks. As admitted by Brink's own supervisors, class members were required to and did continue performing their jobs during these times, even while they were eating or drinking. . . . . . . Brink's had actual or constructive knowledge that the class members were not receiving lawfully adequate breaks and therefore may be held liable for the missed time. . . . Brink's established the work rules requiring constant guarding and vigilance and made no effort to arrange conditions under which class members working on the armored vehicles could be relieved from work, rest, relax, and take true breaks. Brink's also instructed crew members in training that they should eat while on the go and could not stop the truck to take breaks and reinforced this practice through monitoring of the trucks and urging crews to hurry up and keep the trucks moving. ¶ 37 Brink's contends that an employer does not have a duty to "provide" meal and rest breaks but is only required to allow employees to take meal periods and rest breaks by not "stand[ing] in the way of employees who choose to take breaks." Brink's also contends that an employer does not have a duty to ensure employees take meal and rest breaks under WAC 296-126-092. WAC 296-126-092 states, in pertinent part: (1) Employees shall be allowed a meal period of at least thirty minutes which commences no less than two hours nor more than five hours from the beginning of the shift. Meal periods shall be on the employer's time when the employee is required by the employer to remain on duty on the premises or at a prescribed work site in the interest of the employer. (2) No employee shall be required to work more than five consecutive hours without a meal period. . . . . (4) Employees shall be allowed a rest period of not less than ten minutes, on the employer's time, for each four hours of working time. Rest periods shall be scheduled as near as possible to the midpoint of the work period. No employee shall be required to work more than three hours without a rest period. (5) Where the nature of the work allows employees to take intermittent rest periods equivalent to ten minutes for each 4 hours worked, scheduled rest periods are not required. ¶ 38 The plain language of WAC 296-196-092 imposes a mandatory obligation on the employer. WAC 296-196-092(1) states that employees "shall be allowed a meal period of at least thirty minutes" and when the employer requires the employee to remain "on duty," the "[m]eal periods shall be on the employer's time." WAC 296-126-092(2) also states that "[n]o employee shall be required *395 to work more than five consecutive hours without a meal period." In addressing rest breaks, the plain language of WAC 296-126-092(4) states that "[e]mployees shall be allowed a rest period of not less than ten minutes, on the employer's time, for each four hours of working time," and describes when rest periods "shall be scheduled." ¶ 39 The administrative policy issued by DL & I interpreting WAC 296-126-092 supports our conclusion. An agency's interpretation of law is entitled to deference "to the extent that it falls within the agency's expertise in a special area of the law." Plum Creek Timber Co. v. State Forest Practices Appeals Bd., 99 Wash.App. 579, 588, 993 P.2d 287 (2000). Administrative Policy ES.C.6 makes clear that employers have a duty to provide meal periods and rest breaks and to ensure the breaks comply with the requirements of WAC 296-126-092.[9] ¶ 40 With respect to meal periods, ES.C.6, section 7 states, in pertinent part, that if an employee is required to remain on duty during meal periods, "the employer must make every effort to provide employees with an uninterrupted meal period." And if the meal break is interrupted, the meal period is continued until the employee "has received 30 minutes total of mealtime." ES.C.6, section 7 states, in pertinent part: 7. When must the meal period be paid? Meal periods are considered hours of work when the employer requires employees to remain on duty on the premises or at a prescribed work site and requires the employee to act in the interest of the employer. When employees are required to remain on duty on the premises or at a prescribed work site and act in the interest of the employer, the employer must make every effort to provide employees with an uninterrupted meal period. If the meal period should be interrupted due to the employee's performing a task, upon completion of the task, the meal period will be continued until the employee has received 30 minutes total of mealtime. Time spent performing the task is not considered part of the meal period. The entire meal period must be paid without regard to the number of interruptions. Wash. Dep't of Labor & Indus., Administrative Policy ES.C.6, § 7, at 3-4 (rev. June 24, 2005). ¶ 41 ES.C.6, section 7 also states: As long as the employer pays the employees during a meal period in this circumstance and otherwise complies with the provisions of WAC 296-126-092, there is no violation of this law, and payment of an extra 30-minute meal break is not required. Administrative Policy ES.C.6, § 7, at 4. ¶ 42 Administrative Policy ES.C.6 defines "rest period" as a break that allows the employee to stop work duties or activities for "personal rest and relaxation." Administrative Policy ES.C.6, section 10 states: 10. What is a rest period? The term "rest period" means to stop work duties, exertions, or activities for personal rest and relaxation. Rest periods are considered hours worked. Nothing in this regulation prohibits an employer from requiring employees to remain on the premises during their rest periods. The term "on the employer's time" is considered to mean that the employer is responsible for paying the employee for the time spent on a rest period. ¶ 43 Accordingly, if an employee is on duty, the paid meal period or rest break may be interrupted, but the employee is entitled to a full 30 minutes of paid meal time and a full 10 minutes for a rest break without performing work duties on behalf of the employer. ¶ 44 In Wingert v. Yellow Freight Systems, Inc., 146 Wash.2d 841, 50 P.3d 256 (2002), the Washington Supreme Court addressed the meaning of the language used in WAC 296-126-092(4) for rest breaks. The court interpreted the language used in WAC 296-126-092(4) to "clearly and unambiguously prohibit[] working employees for longer than three consecutive hours without a rest period." *396 Wingert, 146 Wash.2d at 848, 50 P.3d 256.[10] The court held that "Yellow Freight did not comply with WAC 296-126-092(4) when it failed to provide paid rest periods to employees." Wingert, 146 Wash.2d at 848, 50 P.3d 256. The court further held that because Yellow Freight did not comply with the requirements for rest breaks, the employee's workday was extended by 10 minutes, the employer received an additional 10 minutes of labor, and the employees were entitled to compensation for that time. Wingert, 146 Wash.2d at 849, 50 P.3d 256. ¶ 45 Brink's asserts that Wingert does not apply because the court did not address meal periods. We conclude Wingert applies with equal force to the requirement that on-duty employees "shall be allowed" a total of 30 minutes for a meal period without engaging in work activities. Under ES.C.6, section 7, the failure to provide the armored truck crews with 30 minutes of total meal time while on duty violates WAC 296-126-092. If the meal period should be interrupted due to the employee's performing a task, upon completion of the task, the meal period will be continued until the employee has received 30 minutes total of mealtime. Time spent performing the task is not considered part of the meal period. The entire meal period must be paid without regard to the number of interruptions. Administrative Policy ES.C.6, § 7, at 3-4. ¶ 46 Here, the court did not err in ruling that Brink's had a duty to provide the driver and messenger with meal periods and break times. The unchallenged findings of fact support the trial court's conclusion that because the messengers and drivers were always engaged in work duties, they did not receive lawful breaks that complied with WAC 296-126-092. The unchallenged findings also support the court's conclusion that even if the crew received breaks, the drivers and messengers did not have sufficient time to take the meal and rest breaks as required by WAC 296-126-092. ¶ 47 Brink's reliance on White v. Salvation Army, 118 Wash.App. 272, 75 P.3d 990 (2003), to argue that an employer has no duty to ensure that employees take meal periods and rest breaks is misplaced. In White, we addressed the question of whether requiring employees to be on call during meal and rest breaks violated WAC 296-126-092. We held that while an employer does not have an obligation to schedule meal periods or rest breaks under WAC 296-126-092, the employer must provide breaks that comply with the requirement of "relief from work or exertion." White, 118 Wash.App. at 283, 75 P.3d 990. First, meal and rest periods are treated substantially the same by DL[&]I. The specific requirements for each are listed under the same regulation, WAC 296-126-092. Subject to certain exceptions limited to meal periods, employers are required to pay workers for both of these periods. Minimum time periods for each are set forth in the regulation. And the regulations set times, subject to certain exceptions, when each type of period must occur during the workday. Second, the underlying purpose for meal periods and rest periods—to provide relief to employees from "work or exertion"—is the same for both. The regulation expressly contemplates that an employer may require a worker to act in the interest of the employer during meal periods, provided the worker is paid for that time. We see no persuasive basis for distinguishing between permitting a worker to act in the interest of an employer during meal periods and doing so during rest periods, provided the employee is paid and provided further the underlying purpose of the rest period—relief from work or exertion—is not compromised. Being on call in this case fits these criteria. White, 118 Wash.App. at 283, 75 P.3d 990. Here, unlike in White, the unchallenged findings support the court's conclusion that the drivers and messengers did not receive meal periods or rest breaks that allowed "relief from work or exertion." White, 118 Wash. App. at 283, 75 P.3d 990. ¶ 48 Next, Brink's asserts that because it paid the drivers and messengers to remain on duty during meal periods and rest *397 breaks, WAC 296-126-092 allowed the crew to work during the paid breaks. Brink's argues that the trial court erred in concluding that "no active work can be performed" during a paid meal period and conflated an "on duty" paid meal break with the requirements for an employee "on call." ¶ 49 WAC 296-126-092(1) allows paid meal breaks where an employer requires an employee to "remain on duty on the premises or at a prescribed work site" and requires the employee to act "in the interest of the employer." However, as emphasized in White and in ES.C.6, section 7, paid breaks must provide relief from work or exertion. White, 118 Wash.App. at 283, 75 P.3d 990. ¶ 50 As with an on-duty meal break, if the employee is called on to engage in a work activity during an on-call rest break, time spent engaged in work activity does not count. Administrative Policy ES.C.6, § 13, at 5. ES.C.6, section 13 states: In certain circumstances, employers may have a business need to require employees to remain on call during their paid rest periods. This is allowable provided the underlying purpose of the rest period is not compromised. This means that employees must be allowed to rest, eat a snack or drink a beverage, make personal telephone calls, attend to personal business, close their door to indicate they are taking a break, or make other personal choices as to how they spend their time during their rest break. Administrative Policy ES.C.6, § 13, at 5. ¶ 51 Consequently, during on-duty meal breaks and on-call rest breaks, the employer may require the employee to act in the employer's interest, but when the employee must engage in work activity, that time does not count towards the break. The trial court correctly rejected the argument that if an employer pays an employee to remain "on duty," under WAC 296-126-092 there are no limitations to requiring the employee to engage in work activities during breaks. Brink's contends that since the law permits employees to be "on duty" during paid meal periods, there is, in essence, no limit to the amount of active work that can be required. The Court concludes this position is incorrect. While an "on duty" employee may be "on call" and required to remain "on the premises" during a paid meal or rest period, he or she cannot be required to carry out active work activities. It is not possible to both perform active work duties and at the same time to stop work duties for rest and relaxation, which is the underlying purpose for both rest and meal periods. See DL & I Policy ES.C.6; White, 118 Wash.App. at 283 [75 P.3d 990] (the "underlying purpose for meal periods and rest periods—to provide relief to employees from `work or exertion'—is the same for both.") As the Court of Appeals explained in Frese v. Snohomish County, 129 Wash.App. 659, 666, 120 P.3d [8]9 (2005), an employer cannot "demand unremitting work through the [paid] lunch period." . . . In summary, neither paid rest breaks nor paid meal periods have to be scheduled (although the employer should make some effort to do so), the breaks can be interrupted (within reasonable limits), and employees may be required to remain "on duty" on the employer's premises during the breaks. However, this "on duty" responsibility is limited to being "on call;" no active work can be performed, and the employees must be able to engage in personal activities and rest during these breaks. And, the full amount of required time (i.e., 10 minutes rest break for each 4 hours, and 30 minutes meal period for each 5 hours) must be provided. ¶ 52 Brink's reliance on White and Iverson v. Snohomish County, 117 Wash.App. 618, 72 P.3d 772 (2003) is misplaced. In White, unlike here, while the domestic violence counselors "were required to remain on call and available to respond to telephone calls and resident needs at all times during their shift, they did have time during which they could rest, eat, or attend to personal matters." White, 118 Wash.App. at 275, 75 P.3d 990. The record here provides an excellent example of why being on call is not inconsistent with being relieved from one's normal work duties. Workers on the graveyard shift were permitted to sleep. Workers on all shifts were also allowed to *398 eat, rest, make personal telephone calls, attend to personal business that would not take them away from the facility, and close the door to the office in order to make themselves unavailable. White, 118 Wash.App. at 283-84, 75 P.3d 990. We held that requiring the domestic violence counselors to remain on call did not violate WAC 296-126-092 because the counselors were not engaged in work-related activities. White, 118 Wash.App. at 274-75, 75 P.3d 990. ¶ 53 By contrast, the trial court's unchallenged findings in this case establish that Brink's drivers and messengers were always engaged in work activities and even if the crews had the opportunity to take breaks, there was insufficient time. Unlike in White, crew members were also strictly prohibited from using "distracting materials" or engaging in any personal activities. ¶ 54 In Iverson, a custody officer sued his employer alleging that the requirement to be on call during a meal period did not "reflect the reality of the extensive duties that he is required to perform during his lunch period." Iverson, 117 Wash.App. at 622, 72 P.3d 772. We affirmed summary judgment dismissal of the lawsuit because the custody officer presented no evidence as to the amount of time he spent performing work duties, and the only evidence in the record showed that "the work requirements do not take up more than 10 percent of the lunch period for a custody officer." Iverson, 117 Wash.App. at 622, 72 P.3d 772. Unlike in Iverson, the evidence and unchallenged findings establish that messengers and drivers were constantly engaged in work activities while working on the routes and guarding the armored truck. ¶ 55 This case is more like Frese. In Frese, the employer agreed to pay corrections officers to be "on call" during the 30-minute lunch break. Frese, 129 Wash.App. at 661, 120 P.3d 89. But the employer required the corrections officers to supervise up to 79 inmates while eating lunch. Frese, 129 Wash.App. at 664, 120 P.3d 89. The corrections officers sued, alleging the employer required them to work through the entire meal period without a break from work responsibilities as required by WAC 296-126-092. Frese, 129 Wash.App. at 662, 120 P.3d 89. We distinguished Iverson and held that the agreement to be "on call" during a paid lunch period does not make it "permissible for the employer to demand unremitting work through the lunch period." Frese, 129 Wash.App. at 665-66, 120 P.3d 89.[11] Here, in contrast to the evidence described in Iverson, declarations from corrections officers provide detailed evidence of the reality of their lunch period. Modules housing up to 79 inmates in the main jail are assigned one corrections officer, while those housing over 80 inmates are assigned two officers. The officers are required to eat in modules with inmates, and they say there is no letup in their responsibility for supervision during the meal period. In fact, one officer says meal times actually increase his duties because of the added potential for inmate disturbances. Declarants say the only time they can rest is during their 15 minute rest breaks. Without a break for lunch, sometimes this means working as long as five hours without rest. One officer who works in the central control tower is responsible for controlling all the facility's secured doors. He says there are never more than a few minutes between requests to open doors. "Some days, it will take several hours when I take a bite of a sandwich in between telephone calls, in between radio calls, in between opening doors." According to lead plaintiff Eva Frese, it is "not a question of being on call during the lunch break; the fact is that I continue to work as if there were no break at all." Frese, 129 Wash.App. at 664, 120 P.3d 89.[12] ¶ 56 Brink's contends the trial court erred in concluding that the drivers and messengers did not receive intermittent *399 rest breaks. WAC 296-126-092(5) states that "[w]here the nature of the work allows employees to take intermittent rest periods equivalent to ten minutes for each 4 hours worked, scheduled rest periods are not required." An "intermittent rest period" is defined as intervals of short duration in which employees are allowed to relax and rest, or for brief personal inactivities from work or exertion. A series of ten one-minute breaks is not sufficient to meet the intermittent rest break requirement. The nature of the work on a production line when employees are engaged in continuous activities, for example, does not allow for intermittent rest periods. In this circumstance, employees must be given a full ten-minute rest period. Administrative Policy ES.C.6, § 12, at 5. ¶ 57 The unchallenged findings support the trial court's determination that the short breaks the crew took during the day did not qualify as intermittent breaks. Although class members were able to make brief stops to run to the restroom or to grab food or drink to consume on the truck, the Court concludes that such brief stops are too short and hurried to rise to the level of "intermittent breaks." These stops did not provide a true break from work activity and opportunity for relaxation and therefore do not qualify as break time under the DL & I regulation and interpretive guidance. ¶ 58 Brink's also asserts that the trial court erred in concluding there was no evidence class members waived their right to meal periods or rest breaks. Brink's bears the burden of proof on the affirmative defense of waiver. Jones v. Best, 134 Wash.2d 232, 241-42, 950 P.2d 1 (1998). A waiver is the intentional and voluntary relinquishment of a known right. Jones, 134 Wash.2d at 241, 950 P.2d 1. It may result from an express agreement or be inferred from circumstances indicating an intent to waive. Bowman v. Webster, 44 Wash.2d 667, 669, 269 P.2d 960 (1954). To constitute implied waiver, there must exist unequivocal acts or conduct evidencing an intent to waive; waiver will not be inferred from doubtful or ambiguous factors. Cent. Wash. Bank v. Mendelson-Zeller, Inc., 113 Wash.2d 346, 354, 779 P.2d 697 (1989). Employees can waive the meal break requirements but may not waive the right to a rest break. Administrative Policy ES.C.6, §§ 8, 9, at 4. ¶ 59 The trial court found that "[t]here is no evidence in this case to support the conclusion that class members willingly and voluntarily waived their meal breaks, and there is evidence to the contrary from former branch managers."[13] The unchallenged findings support the trial court's conclusion that Brink's did not carry its burden of establishing waiver. The Court rejects Brink's argument that class members waived their breaks. Rest breaks cannot be waived under Washington law. See DL & I Policy ES.C.6. Meal periods can be waived, but only if the waiver is knowing and voluntary. Waiver is an affirmative defense on which defendant bears the burden of proof. Jones[, 134 Wash.2d at] 241-42 [950 P.2d 1]. . . . There is no evidence in this case to support the conclusion that class members willingly and voluntarily waived their meal breaks, and there is evidence to the contrary from former branch managers. Expert Testimony ¶ 60 Brink's contends the trial court erred in relying on the expert testimony of Dr. Abbott and Dr. Munson. ¶ 61 ER 702 permits expert testimony where "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." The trial court has broad discretion in ruling on the admissibility of expert testimony. Philippides v. Bernard, 151 Wash.2d 376, 393, 88 P.3d 939 (2004). We will not disturb the trial court's ruling "`[i]f the reasons for admitting or excluding the opinion evidence are `fairly debatable."'" Grp. Health Coop. of Puget Sound, Inc. v. The Dep't of Revenue, 106 Wash.2d 391, 398, 722 P.2d 787 (1986) (quoting Walker *400 v. Bangs, 92 Wash.2d 854, 858, 601 P.2d 1279 (1979)). ¶ 62 Brink's asserts Dr. Abbott's testimony regarding the Daily Guide Sheets was "flawed" because he assumed that crew members "never took breaks unless they noted them on the Guide Sheet." We disagree. ¶ 63 The unchallenged findings refute the premise of Brink's argument that unless otherwise noted, the analysis assumed crews never took breaks. The court found "the absence of recorded restroom stops or stops to grab food or drink on most of the guide sheets does not necessarily mean that such stops were not made." The court found that "the overwhelming absence of recorded meal breaks on the guide sheets and the short duration of the few meal breaks that were recorded corroborates the class member testimony that class members did not receive meal breaks." The court also notes that "Brink's has not pointed to any significant errors" in the summaries Dr. Abbott prepared, and found the summaries set forth in the exhibits were reliable. ¶ 64 Brink's also challenges the trial court's reliance on the testimony of Dr. Munson. Brink's claims the methodology used by Dr. Munson in calculating damages is unreliable. ¶ 65 Damages need not be proven with mathematical certainty, but must be supported by evidence that provides a reasonable basis for estimating the loss and does not amount to mere speculation or conjecture. Shinn v. Thrust IV, Inc., 56 Wash. App. 827, 840, 786 P.2d 285 (1990). ¶ 66 The trial court ruled that Dr. Munson's testimony established a reasonable basis to award back pay damages for violation of WAC 296-126-092. Dr. Munson used timecard punch data and payroll information produced by Brink's to calculate the total time class members worked each day. Dr. Munson then calculated the time for meal and rest breaks the class members should have received.[14] If data for a particular day was not available, Dr. Munson applied a class-wide average to determine hours and break time. After finding that Dr. Munson's calculations overstated the amounts owed for some class members who at times worked out of state or in job categories other than driver or messenger, the trial court reduced the damages award for those crew members. The record supports the trial court's finding that "Dr. Munson's overall methodology for calculating damages is sound and reasonable." ¶ 67 Brink's argues that the time crew members spent before and after going out on the daily routes should not be included in the calculation of damages because "the evidence was undisputed that employees did take breaks at the Branch." But the unchallenged findings state that work performed at the branch before and after runs "is inherently connected to work on the armored vehicle runs and there is no evidence that employees received break time during these work activities or between these work activities and the actual run." The trial court did not abuse its discretion by relying on the testimony of Dr. Munson.[15] ¶ 68 We affirm the trial court's determination that drivers and messengers did not receive lawful meal periods and rest breaks and entry of the judgment in favor of the class members. Upon compliance with RAP 18.1, based on RCW 49.46.090 and RCW 49.48.030, the class is entitled to an award of reasonable attorney fees on appeal. WE CONCUR: LAU and COX, JJ. NOTES [1] Before trial, the plaintiffs dismissed the other claims for pre-shift work and unpaid overtime. [2] We allowed Brink's to amend the opening brief and the reply brief to correctly cite to the record. In the amended briefs, Brink's improperly added to or modified the original citations. However, because Brink's does not challenge any of the trial court's findings of fact, we deny Pellino's motion to strike the amended briefs. [3] (Internal quotation marks and citation omitted.) [4] (Italics omitted.) [5] It is unclear whether Brink's is also challenging the predominance requirement under CR 23(b)(3). However, CR 23(b)(3) is satisfied if common questions of law or fact predominate over questions affecting only individual class members, or there is a "`common nucleus of operative facts'" to each class member's claim. Smith v. Behr Process Corp., 113 Wash.App. 306, 323, 54 P.3d 665 (2002) (internal quotation marks and citation omitted) (quoting Clark v. Bonded Adjustment Co., 204 F.R.D. 662, 666 (E.D.Wash.2002)). [6] (Internal quotation marks and citation omitted.) [7] (Brackets in original) (internal quotation marks and citations omitted.) [8] For the first time in the reply brief, Brink's cites Bobo v. United States, 37 Fed. Cl. 690 (1997) to argue that vigilance is not work. This court will not review an issue, theory, argument, or claim of error not presented at the trial court level. RAP 2.5(a); Demelash v. Ross Stores, Inc., 105 Wash.App. 508, 527, 20 P.3d 447 (2001). Nonetheless, Bobo is distinguishable. In Bobo, border agents sought compensation for being "vigilant" during the commute to and from work, which meant turning on the border patrol radio and keeping a lookout for immigration infractions. Bobo, 37 Fed.Cl. at 699-700. The court concluded the border agent's interpretation would mean they are "essentially `on-duty' 24 hours a day." Bobo, 37 Fed.Cl. at 699-700. Unlike in Bobo, the court found that "[t]he vigilance required of class members is not a passive state but requires active observation and mental exertion at all times." Federal courts have long held, "`[w]ork' . . . is `physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer.'" Alvarez v. IBP, Inc., 339 F.3d 894, 902 (9th Cir.2003) (quoting Tenn. Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598, 64 S. Ct. 698, 88 L. Ed. 949 (1944)). [9] Administrative Policy ES.C.6 was originally issued in 2002 and revised in 2005. [10] (Internal quotation marks and citation omitted.) [11] Because there were material issues of fact as to whether the corrections officers were denied all or part of their meal breaks, we denied plaintiffs' cross motion for summary judgment. Frese, 129 Wash.App. at 670-71, 120 P.3d 89. [12] (Footnotes omitted.) [13] Brink's managers testified that crew members did not expressly waive their breaks. [14] Brink's did not produce punch data for every class member and the data did not include the first two months of the class period. [15] Brink's also contends that the expert's testimony is not reliable because punch data was manipulated by counsel for the class before being submitted to Dr. Munson. But the record shows that Brink's produced the "total amount" data in discovery.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2633296/

129 P.3d 193 (2006) 204 Or. App. 61 Emil MARICICH Jr., Appellant, v. Robert LACOSS, Respondent. 0305-04888; A126427. Court of Appeals of Oregon. Argued and Submitted November 23, 2005. Decided February 1, 2006. *194 Brooks F. Cooper, Portland, argued the cause for appellant. With him on the briefs were James R. Cartwright and Brooks F. Cooper. Terrance C. Hunt, Portland, argued the cause and filed the brief for respondent. Before EDMONDS, Presiding Judge, and BREWER, Chief Judge, and WOLLHEIM, Judge. EDMONDS, P.J. Plaintiff appeals a judgment dismissing without prejudice his complaint against defendant on the ground of forum non conveniens. Plaintiff contends that the court acted sua sponte in ordering the dismissal and that there was no legal or factual ground for such a dismissal. Defendant responds that the basis of the trial court's ruling was raised in defendant's answer and addressed in his motion for summary judgment. We reverse and remand. Plaintiff filed this action against defendant, the current trustee of a trust of which plaintiff is a beneficiary, seeking an accounting, defendant's removal as trustee, and a surcharge for a breach of fiduciary duty in which defendant allegedly appropriated trust assets for his own use. Defendant answered, asserting in part that Oregon lacked jurisdiction over the case because he resides in California, that the trust is administered in California, and that all trust assets are located in California or in states other than Oregon. Defendant then moved for summary judgment, asserting, in part, in a supporting affidavit, that he did not misuse the assets of the trust and that plaintiff had failed to join all necessary parties. The motion also included an assertion that plaintiff's action was properly within the jurisdiction of California courts and that Oregon's "long arm" jurisdiction did not apply. Defendant also argued that the trial court should not exercise jurisdiction because the California courts had "primary" jurisdiction over the entire case, or, if the trial court did exercise jurisdiction, it should apply California law, or exercise jurisdiction only over his conduct that occurred in Oregon. Plaintiff responded, arguing that under Oregon's conflict of laws rule, Oregon law should apply because it is the state with the most significant contacts with the trust. Plaintiff also argued that defendant had contacts with Oregon sufficient to give rise to personal jurisdiction. At the start of the hearing on the motion for summary judgment, the trial court stated that it could not grant the motion on the grounds advanced by defendant based on the evidentiary record before it. The court then proposed, "I looked at this thing then as really a motion for this Court to consider itself as a forum non-conveniens, which is really what's going on, and I understand that, if it is not convenient and should be elsewhere in California, that I simply dismiss the case with leave to file the thing in California. And I think that's what you're asking for, [defendant], on that convolutiveness [sic]. "* * * * * "And, I can, as I understand it, treat your motion that way, even though it's denominated a motion for summary judgment. It's really a motion forum non conveniens." The court later stated that "I look at this thing as a forum non conveniens issue. I'm not reaching the merits of anything else, but I have told you that, it seems to me, that if I reach those merits on all — if I decided this was the convenient forum, I'd deny all your summary judgment requests because it seems to me there's a question of fact on all that stuff." *195 Defendant agreed with the court, urging that plaintiff had no legally cognizable interest in the trust until after the settlor died in California, and that the "center of gravity" for plaintiff's claims was in California. Plaintiff objected, arguing in part that he was not prepared to litigate a forum non conveniens issue because it had not been raised in the motion for summary judgment and, in plaintiff's view, was not properly before the court. The trial court disagreed with plaintiff, stating that the forum non conveniens issue had been "extensively briefed" by defendant, and that "I am treating this motion for summary judgment as an addition to a motion for summary judgment on the factual merits, a motion for dismissal, based on forum non conveniens, and that's the motion that I am granting." The trial court later signed an order stating that "The Court, having reviewed the motion, affidavits, responses and the pleadings and files herein, the Court finds that Defendant's Motion for Summary Judgment should be treated as a motion to dismiss for forum non conveniens. "NOW, THEREFORE, IT IS HEREBY ORDERED that: "Defendant's motion to dismiss plaintiff's Amended Complaint for forum non conveniens is granted." Pursuant to the order, the court later issued a general judgment of dismissal without prejudice. On appeal, plaintiff argues that the trial court erred in sua sponte dismissing the complaint on a ground not raised in the summary judgment motion, that the doctrine of forum non conveniens is not applicable because it is not recognized in Oregon, and that, if it is recognized, it should not be applied in this case, which had been pending for 16 months before the trial court's order. Defendant responds that the trial court did not act sua sponte because he pleaded lack of jurisdiction as an affirmative defense in his answer and addressed the forum non conveniens issue in his motion for summary judgment, and that, therefore, the trial court could properly consider the issue of forum non conveniens as part of his motion for summary judgment. Defendant also argues that there have been no trust assets in Oregon since 2002, that plaintiff's claims arise from defendant's conduct while the settlor and the trustee resided in California, and that plaintiff's failure to join the other three beneficiaries of the trust are additional reasons to defer jurisdiction to California. The issue whether a court has jurisdiction and the issue whether a court should defer its jurisdiction in favor of another forum are discrete issues. Here, plaintiff argued that the trial court had jurisdiction over defendant under ORCP 4 E(3), which gives the court jurisdiction over a defendant when the action "[a]rises out of a promise, made anywhere to the plaintiff or to some third party for the plaintiff's benefit, by the defendant to deliver or receive within this state or to send from this state goods, documents of title, or other things of value." ORCP 4 E(3) applies to an out-of-state trustee's explicit or implicit promise to make distributions to a beneficiary within Oregon. Dreher v. Smithson, 162 Or.App. 645, 650, 986 P.2d 721 (1999), rev. den., 329 Or. 589, 994 P.2d 130 (2000). However, an exercise of jurisdiction over an out-of-state trustee must also comport with due process of law. Id. at 650, 986 P.2d 721. In comparison, the dismissal of a case for forum non conveniens presumes that the trial court has jurisdiction, but defers its jurisdiction in favor of the jurisdiction of another court.[1]See, e.g., Novich v. McClean, 172 Or.App. 241, 251, 18 P.3d 424, rev. den., 332 Or. 137, 27 P.3d 1043 (2001) (under the doctrine of forum non conveniens, a court may dismiss an action when, despite the existence of subject matter jurisdiction, personal jurisdiction, and proper venue, trying the case elsewhere would best serve the convenience of the parties and the ends of justice). See also C.O.W., Inc. v. M.V.D., 37 Or.App. 73, 75 n. 2, 586 P.2d 107 (1978) ("While a court having jurisdiction may decline to exercise it on the basis of forum non conveniens * * *, absent jurisdiction, the issue cannot be reached."). Defendant's arguments on appeal conflate the issues of jurisdiction and forum non conveniens. Having pleaded a lack of jurisdiction in his answer as an affirmative defense, defendant could properly move for summary *196 judgment on that ground under ORCP 47. However, the trial court expressly refused to grant summary judgment on "the merits," leaving the issue whether the trial court had jurisdiction undetermined and subject to determination at trial. Even if defendant raised the issue of forum non conveniens in his motion for summary judgment (a premise with which we do not necessarily agree), the legal predicate to the exercise of the trial court's discretion to dismiss the complaint on that ground was a finding that the trial court had jurisdiction over defendant, a finding that the trial court expressly refused to make. Absent that finding, the trial court abused its discretion in dismissing the case for forum non conveniens. Defendant argues in the alternative that the trial court's dismissal of the case is "right for the wrong reason." Under that doctrine, we may — in our discretion — affirm a ruling of a trial court, even if the trial court's legal reasoning for the ruling was erroneous, if (1) the facts of the record are sufficient to support the proffered alternative basis; (2) the trial court's ruling is consistent with the view of the evidence under the alternative basis; and (3) the record is materially the same as would have been developed had the prevailing party raised the alternative basis for affirmance below. Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or. 634, 659-60, 20 P.3d 180 (2001). Here, defendant's motion for summary judgment requested in part that the case be dismissed without prejudice because plaintiff had failed to join all necessary parties, that is, the other beneficiaries of the trust, two of whom opposed the suit. In the alternative, defendant argued that the missing parties should be joined, although he questioned whether the trial court had personal jurisdiction over them because they resided in California. In his response, plaintiff argued that, as he sought relief only against the trustee personally, the other beneficiaries were unnecessary to the case. He also argued that the two beneficiaries opposed the suit only because one beneficiary was defendant's wife and the other had received loans from the trust made by defendant. At the hearing on the motion for summary judgment, the trial court stated that it would not address the joinder issue because it was dismissing the case on forum non conveniens grounds. As a result, it is not clear whether the court, if it had determined that it had jurisdiction over the beneficiaries and that they were necessary parties, would have dismissed the case on that issue, or would have allowed a motion to amend the pleadings to join the other beneficiaries, as defendant intimated. Therefore, even if we agreed with defendant's argument that plaintiff failed to join necessary parties, we cannot assume the trial court would have dismissed the case for that reason, and we decline to exercise our discretion to affirm on that ground. Reversed and remanded. NOTES [1] We assume, for purposes of this case, that the doctrine can be applied in Oregon courts.

01-03-2023

11-01-2013

https://www.courtlistener.com/api/rest/v3/opinions/2344595/

921 A.2d 551 (2007) Fred GIBBONS, t/d/b/a RE/MAX Real Estate Services, Petitioner v. BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS, State Real Estate Commission, Respondent. Commonwealth Court of Pennsylvania. Argued February 6, 2007. Decided April 9, 2007. *552 Ronald M. Buick, McKeesport, for petitioner. Judith Pachter Schulder, Counsel, Harrisburg, for respondent. BEFORE: COLINS, Judge, FRIEDMAN, Judge, and KELLEY, Senior Judge. OPINION BY Judge COLINS. Fred Gibbons (Petitioner) petitions for review from a final adjudication and order of the State Real Estate Commission (Commission) that required Petitioner to pay a fine and suspended his real estate broker's license for violating Section 604(a)(16) of the Real Estate Licensing and Registration Act (Act).[1] Petitioner is a licensed real estate broker in Pennsylvania and functions as the broker of record of his sole proprietorship, RE/MAX Real Estate Services (RE/MAX). Petitioner employed Richard K. Russ (Russ) as a licensed real estate salesperson. In May 2003, Lisa Johnson (Johnson) contacted Russ about the purchase of a commercial property. In response to Johnson's interest in the property, Russ instructed Johnson to write a check, payable to Russ's wife, in the amount of $1500. Based on prior dealings, Johnson issued the check indicating that it was for "hand money." Russ's wife, who has never been a licensee of the State Real Estate Commission, deposited the check in her personal account. In June 2003, Johnson signed an offer to purchase property. Russ prepared the offer, which listed RE/MAX as the selling broker and provided that, "$1,500.00 cash in advance is non-refundable and will be given to such broker to start as a `transaction licensee' for both buyer and seller. And $1,000.00 to be held as hand money for the sale of above said property. This *553 total will be deducted from the gross sale price." (Exhibit C-1). At the time Russ presented the offer for Johnson's signature, Johnson had not signed a business relationship agreement setting forth the amount and basis of fees to be paid to RE/MAX for the services it rendered in the transaction. Russ never tendered Johnson a fully-signed Agreement of sale, and the transaction never made it to settlement. Thereafter, Johnson asked Russ and Petitioner to return her $1500, and both refused. Russ never delivered Johnson's $1500 to Petitioner. Russ never provided Petitioner with a copy of the offer or a copy of any other document relating to the transaction. Russ never advised nor notified Petitioner of his involvement in the transaction. The matter went before the Commission on separate notices and orders to show cause. Petitioner's notice and order charged him with five counts of failure to supervise Russ in violation of Section 604(a)(16) of the Act, 63 P.S. § 455.604(a)(16).[2] Section 604(a)(16) provides the Commission with the power to suspend or revoke the license of a broker licensee, levy fines up to $1000.00, or both, for "failing to exercise adequate supervision over the activities of his licensed salespersons or associate brokers within the scope of this act." After a formal hearing, the hearing examiner recommended a 30-day suspension of Petitioner's license plus the assessment of a $3,000 civil penalty.[3] Petitioner filed Exceptions to the Proposed Adjudication and Order. After review, the Commission adopted the hearing examiner's Findings of Fact, Conclusions of Law, and the Proposed Adjudication and Order as its Final Adjudication and Order. Petitioner now appeals the Commission's Order. Our scope of review of the Commission's determination is limited to determining whether necessary findings of fact are supported by substantial evidence, whether constitutional rights were violated, or whether an error of law was committed. 2 Pa. C.S. § 704. With his initial argument, Petitioner asserts that the Commission's Order suspending his license was in error because the evidence of record indicates that he did not have actual knowledge of the real estate transaction until three and one half months after it occurred. Petitioner relies on Section 702(a) of the Act, which provides: No violation of any of the provisions of this act on the part of any salesperson, associate broker, or other employee of any licensed broker, shall be grounds for the revocation or suspension of the license of the employer of such salesperson, associate broker, or employee, unless it shall appear upon the hearings held, that such employer had actual knowledge of such violation. 63 P.S. § 455.702(a). The Commission counters that our decision in Dougherty v. Commonwealth, State Real Estate Commission, 99 Pa.Cmwlth. 397, 513 A.2d 555 (1986), appeal denied, 515 Pa. 587, 527 A.2d 547 (1987), is directly on point and controls this issue. *554 In Dougherty, we held the Commission need not establish that a broker have actual knowledge of a salesman's misconduct in order to discipline the broker under Section 604(a)(16) of the Act. Id. at 558. There, a broker's salesman misrepresented the terms of a contract for the sale of property. The broker claimed that he reviewed most, but not all of the documents pertaining to the sale. The Commission imposed a one year suspension of the broker's license for failing to adequately supervise his salesperson in violation of Section 604(a)(16) of the Act. On appeal, the broker argued that because the Commission found that he did not have actual knowledge of the salesman's misrepresentations, the misrepresentations, pursuant to Section 702 of the Act, could not provide the basis for his suspension under Section 604(a)(16) of the Act. Rejecting this argument, we explained that the broker had a responsibility to review all of the documents pertaining to the sale, and the broker's ignorance of the salesman's misconduct stemmed from this failure to adequately supervise the salesman. It was the broker's lack of knowledge of the salesman's misconduct, rather than the misconduct itself, that served as the basis for the Commission's determination. Similarly, it was Petitioner's ignorance of Russ's misconduct, as opposed to Russ's actual misconduct, that served as the basis for the Commission's determination. The fact that Petitioner did not have actual knowledge of Russ's activities underscores the point of the Commission's determination; Petitioner had a duty to inform himself of Russ's activities. Petitioner, however, testified that Russ generally operated independent of Petitioner's supervision and Petitioner only involved himself in Russ's transactions after Russ obtained hand money and a signed agreement of sale. (N.T. p. 118-120). Citing Petitioner's indifferent approach to supervision, the Commission determined that Petitioner failed to adequately supervise Russ in violation of 604(a)(16) of the Act. Because that determination was based on Petitioner's ignorance of Russ's misconduct, the Commission was not required to prove that Petitioner had actual knowledge of the misconduct. Next, Petitioner argues that substantial evidence does not exist to support a finding that Russ engaged in a real estate transaction that required Petitioner's supervision. Specifically, Petitioner challenges the Commission's determination that the $1,500 check deposited into Russ's wife's checking account was "hand money" and not an appraisal fee. Substantial evidence is such relevant evidence that a reasonable person would consider adequate to support a conclusion. Carbondale Area School District v. Fell Charter School, 829 A.2d 400, 404 (Pa.Cmwlth. 2003). The Commission stated that: the record does not support either of Respondents' [sic] claims that Respondent Russ was not acting in a capacity of a real estate licensee. The record is devoid of any evidence that an appraisal was paid for or performed on the property. Respondent Russ did not introduce into evidence a copy of the check used to pay for the appraisal, a document reflecting that he ordered the appraisal, an appraisal report from the appraisal company or a receipt showing payment from the appraisal company. Similarly, Respondent Russ did not introduce any evidence that he was acting as a mortgage broker or financial consultant. Conversely, the record contains confirmatory evidence that Respondent was acting in the capacity of a real estate licensee. Not only does Paragraph 3(b) of the Agreement of Sale specifically *555 address monies paid by Ms. Johnson in connection with the real estate transaction, but Ms. Johnson's notation on her check indicated that she intended the money to be used as hand money. (Exhibit C-1). Additionally, pursuant to the definition of a salesperson, Respondent Russ met with Ms. Johnson to discuss her interest in purchasing a specific property and prepared an offer to purchase on Ms. Johnson's behalf. Absent documentary evidence from Respondent Russ, the weight of the evidence tips exclusively in favor of Respondent Russ' representation as a real estate licensee. (Final Adjudication and Order of the State Real Estate Commission, Docket No. 0265-56-05, p. 5, 6). The Commission's analysis accurately reflects the testimony and evidence presented and, as such, identifies substantial evidence to support that necessary finding. Accordingly, we affirm the Commission's order. ORDER AND NOW, this 9th day of April 2007, the order of the State Real Estate Commission in the above-captioned matter is affirmed. NOTES [1] Act of February 19, 1980, P.L. 15, as amended, 63 P.S. § 455.604(a)(16). [2] Russ was charged with violating 63 P.S. § 455.604(a)(1) (making a substantial misrepresentation), 63 P.S. § 455.604(a)(5)(ii) (failing to pay over a deposit to the broker), 63 P.S. § 455.604(a)(20) (demonstrating bad faith, dishonesty), 63 P.S. § 455.604(a)(25) (failing to account for money received in a timely manner), and 63 P.S. § 455.604(a)(25); 63 P.S. § 455.606a(b)(1) (performing a service and recovering a fee without a signed agreement). [3] The hearing examiner also recommended a 90-day suspension and a $5,000 civil penalty for Russ.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2344579/

921 A.2d 113 (2007) TOWN OF BURRILLVILLE v. RHODE ISLAND STATE LABOR RELATIONS BOARD. No. 2004-53-M.P. Supreme Court of Rhode Island. May 4, 2007. *115 Jeffrey W. Kasle, for Plaintiff. Margaret L. Hogan, Wakefield, for Defendant. Present: WILLIAMS, C.J., GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ. OPINION Justice ROBINSON for the Court. This matter is before this Court pursuant to our issuance of a writ of certiorari. The Town of Burrillville (Town) seeks review of a Superior Court decision denying the Town's appeal of a decision by the State Labor Relations Board (SLRB), which held that the Town had committed an unfair labor practice in violation of the Rhode Island Labor Relations Act (Act), G.L. 1956 chapter 7 of title 28. The dispute centers around a particular order issued by the Town's chief of police that became effective on or about March 10, 1999 and that is referred to as "General Order No. 1."[1] Before this Court, the Town argues (1) that the election-of-remedies doctrine should have precluded Local 369 of the International Brotherhood of Police Officers (Union) from filing an unfair labor practice charge with the SLRB in reference to this dispute; (2) that the Town had no obligation to bargain over the implementation of General Order No. 1; and (3) that the Union waived its right to bargain over the implementation of General Order No. 1. For the reasons set forth in this opinion, we quash the decision of the Superior Court. *116 Facts and Travel The facts of this case are largely undisputed. Pursuant to the Act's definitional section (§ 28-7-3), the Town is an "employer." The Union is a "labor organization" within the meaning of the Act, and it is the bargaining representative for the Town of Burrillville Police Department. The Town and the Union entered into a collective bargaining agreement, which was in effect at all times pertinent to the events described herein. Pursuant to Articles 1.9 and 2.1 of the collective bargaining agreement, the Town of Burrillville was vested with the authority to issue rules, regulations, and general orders. In early March of 1999, Colonel Bernard Gannon, the chief of police, drafted General Order No. 1, which set forth the administrative procedure pursuant to which police officers who were injured in the line of duty were to report their injuries in order to receive injured-on-duty (IOD) benefits.[2] General Order No. 1 requires police officers to submit the following forms (collectively referred to as an IOD package) in order to be placed on IOD status: (1) a form reporting the injury; (2) the statements of any witnesses; (3) a form authorizing any medical providers to release to the Police Department medical information relating to the injury; (4) a form to be completed by the injured officer's immediate supervisor; and (5) a statement from all medical providers indicating (a) whether the injury in question was job-related, (b) the officer's medical diagnosis, (c) whether the officer would be able to perform his or her regular duties, (d) the officer's prognosis, (e) the rehabilitation of the officer, and (f) the date when the officer would be able to return to his or her regular duties (which statement must be updated if the officer does not return to his or her regular duties by the time initially specified). Under General Order No. 1, a new IOD package is required every time that an officer, after returning to work, sustains a recurrence of a previous IOD injury or needs additional medical treatment as a result of the previous IOD injury. General Order No. 1 also requires an officer to present medical documentation clearing the officer to return to work before he or she can return to "duty" status. Additionally, section 10 of General Order No. 1 provides that an officer will be suspended for two days without pay if he or she twice fails to appear to be examined by the Town's physician if the Town determines that such an appointment is needed. Section 11 requires that officers on IOD status "notify the Office of the Chief of Police of his/her intention to leave * * * Rhode Island" for more than twenty-four hours; in such cases, that officer's IOD status will be changed and the officer will be required to use vacation time for that purpose. Prior to the implementation of General Order No. 1, Colonel Gannon held a face-to-face meeting with Officer Macomber (the president of the Union at that time) and Sergeant McBrier (the vice president of the Union at that time). During that meeting, Colonel Gannon gave a copy of General Order No. 1 to both Officer Macomber and Sergeant McBrier for their review, and the three of them discussed its substance. At the hearing before the SLRB, Sergeant McBrier testified that, upon reviewing General Order No. 1 during that meeting, he and Officer Macomber "spoke for quite some time" with Colonel Gannon. He further testified that he and Officer *117 Macomber voiced their concerns to the Colonel about the perceived problems that they had with respect to certain of the procedures set forth in General Order No. 1. At the conclusion of the meeting with Colonel Gannon, it was Sergeant McBrier's belief that, "as [they] had done in the past," the three participants would arrange another meeting, at which their respective lawyers would also be present in order to further discuss General Order No. 1. Notably, however, Sergeant McBrier admitted before the SLRB that neither he nor any other officer of the Union had ever submitted to the Police Department a written request that the Union and Town bargain over General Order No. 1. Sergeant McBrier also stated that he never specifically said to Colonel Gannon, "We want to bargain over the implementation of this general order" at any time after its implementation. Colonel Gannon testified before the SLRB that the Union never notified him, either verbally or in writing, that it believed that General Order No. 1 involved mandatory subjects for bargaining. Additionally, Sergeant McBrier testified that at no time prior to the implementation of General Order No. 1 did the Town express any willingness to rescind General Order No. 1 and bargain with the Union over it. Sergeant McBrier also conceded that the Union had not bargained with the Police Department on any of the prior similar general orders that Colonel Gannon had issued in his capacity as chief of police; Colonel Gannon's own testimony is completely consistent with that statement. On March 10, 1999, approximately one week after his meeting with Officer Macomber and Sergeant McBrier,[3] Colonel Gannon implemented General Order No. 1 in accordance with the procedure required by the collective bargaining agreement between the Town and the Union. Several months later, on July 22, 1999, the Union filed a grievance under the collective bargaining agreement regarding the implementation of General Order No. 1. The Union alleged that requiring Sergeant McBrier to use his vacation leave when he traveled out of state on a pre-approved vacation while he was on IOD status violated the collective bargaining agreement. On February 11, 2000, the matter was heard before an arbitrator (again in accordance with the terms of the collective bargaining agreement), who ultimately rendered a decision on April 25, 2000, in which he ruled that paragraph 17 of General Order No. 1 did not violate the collective bargaining agreement. On August 24, 1999, while the above-mentioned grievance was still pending, the Union filed a charge with the SLRB, arguing that the Town had violated § 28-7-12 and §§ 28-7-13(6) and (10) of the Act by implementing General Order No. 1 without first bargaining with the Union. After an unsuccessful informal conference between the Town and the Union, the SLRB issued a complaint against the Town on August 25, 2000 alleging violations of §§ 28-7-13(6) and (10). Seventeen months after the Union filed the charge with the SLRB, on or about January 23, 2001, this matter was formally heard before the SLRB. On April 29, 2002, the SLRB ruled that the Town had violated § 28-7-13(6) by failing to bargain with the Union before implementing General Order No. 1. The SLRB found (a) that the issues of the receipt of IOD benefits and discipline were mandatory subjects for bargaining and (b) that the *118 Union had not waived its right to bargain over the issuance of General Order No. 1. Consequently, the SLRB ordered the Town to cease and desist from using the provisions of General Order No. 1 as they pertained to the temporary and permanent discharge of sick time and the possible imposition of discipline without first bargaining with the Union regarding the implementation of General Order No. 1. The Town sought judicial review of the SLRB's Decision and Order (SLRB's decision) in the Superior Court pursuant to G.L. 1956 § 42-35-15 of the Administrative Procedures Act (APA). On January 30, 2004, the Superior Court issued its decision affirming the SLRB's decision. Then, in accordance with § 42-35-16, the Town filed a Petition for Issuance of a Writ of Certiorari with this Court on February 19, 2004; we granted that petition on September 24, 2004. Standard of Review The Superior Court's review of an administrative decision is governed by § 42-35-15 of the APA. Rossi v. Employees' Retirement System, 895 A.2d 106, 109 (R.I. 2006); Arnold v. Rhode Island Department of Labor and Training Board of Review, 822 A.2d 164, 166 (R.I.2003). Section 42-35-15(g) authorizes that court to: "affirm the decision of the agency or remand the case for further proceedings, or * * * reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: "(1) In violation of constitutional or statutory provisions; "(2) In excess of the statutory authority of the agency; "(3) Made upon unlawful procedure; "(4) Affected by other error or law; "(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or "(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." The Superior Court's review of an administrative decision is limited to a determination of whether or not legally competent evidence exists in the record to support the agency's decision. Johnston Ambulatory Surgical Associates, Ltd. v. Nolan, 755 A.2d 799, 804-05 (R.I.2000). Legally competent evidence (sometimes referred to as "substantial evidence") has been defined as "relevant evidence that a reasonable mind might accept as adequate to support a conclusion[; it] means an amount more than a scintilla but less than a preponderance." Center for Behavioral Health, Rhode Island, Inc. v. Barros, 710 A.2d 680, 684 (R.I.1998) (internal quotation marks omitted); see also Arnold, 822 A.2d at 167; Rhode Island Temps, Inc. v. Department of Labor and Training, Board of Review, 749 A.2d 1121, 1124 (R.I.2000). The Superior Court must defer to the agency's determinations regarding questions of fact. State Department of Environmental Management v. State Labor Relations Board, 799 A.2d 274, 277 (R.I. 2002); Nolan, 755 A.2d at 805. When, as in the instant case, this Court issues a writ of certiorari in order to review a judgment of the Superior Court rendered in proceedings brought under § 42-35-15, "[o]ur consideration * * * is confined to a review * * * of `any questions of law involved.'" Barrington School Committee v. State Labor Relations Board, 608 A.2d 1126, 1138 (R.I.1992) (quoting § 42-35-16). Although our review is limited to questions of law, we freely review such questions. Rossi, 895 A.2d at 110; Arnold, 822 A.2d at 167; *119 Nolan, 755 A.2d at 805. With respect to questions of fact, this Court will defer to the determinations made by the administrative agency. Rossi, 895 A.2d at 110; Arnold, 822 A.2d at 167; Birchwood Realty, Inc. v. Grant, 627 A.2d 827, 831 (R.I. 1993). We will examine the certified record to ascertain whether or not the Superior Court decision was supported by competent evidence, but we will refrain from weighing the evidence presented. Nolan, 755 A.2d at 805; Berberian v. Department of Employment Security, Board of Review, 414 A.2d 480, 482 (R.I.1980). We will reverse a decision of the Superior Court in this context only if we find "no reliable, probative, [or] substantial evidence" to support that decision. State of Rhode Island, Office of Secretary of State v. Rhode Island State Labor Relations Board, 694 A.2d 24, 28 (R.I.1997) (internal quotation marks omitted). Analysis I Election-of-Remedies Doctrine The Town first argues that the election-of-remedies doctrine barred the Union's unfair labor practice charge before the SLRB.[4] The Town contends that, since the Union opted first to challenge General Order No. 1 by filing a grievance pursuant to the collective bargaining agreement, it was barred from thereafter initiating an unfair labor practice charge with the SLRB because those charges sought to address the same issues. We do not reach this issue because the Town failed to raise it properly below. It is well settled that this Court will not address an issue if it was not raised below. See, e.g., New England Development, LLC v. Berg, 913 A.2d 363, 369 n. 11 (R.I.2007) ("The election-of-remedies argument was not raised before the trial justice, and therefore it is not properly before us, and we will not address it."); see also Smiler v. Napolitano, 911 A.2d 1035, 1041 (R.I. 2006); see generally Pollard v. Acer Group, 870 A.2d 429, 432 (R.I.2005). In the instant case, the Town failed to raise the affirmative defense of election of remedies in the Superior Court or before the SLRB. (Indeed, the Town made no mention of such a defense until after this Court had issued its writ of certiorari.) By not having articulated its election-of-remedies defense when it previously had an opportunity to do so, the Town has forfeited its right to present that argument at this level. Furthermore, as we have previously held, we will not consider any issue that is not included in a petitioner's initial petition for issuance of a writ of certiorari. Cadillac Lounge, LLC v. City of Providence, 913 A.2d 1039, 1042-43 (R.I.2007); see also Bergquist v. Cesario, 844 A.2d 100, 104 (R.I.2004). Since the Town did not make reference to an election-of-remedies argument in its Petition for Issuance of a Writ of Certiorari, it is barred from raising it at this level for this additional reason. Accordingly, we decline to address the Town's election-of-remedies argument. II Union's Waiver of Right to Bargain The Town also argues that the Union waived its right to bargain over General Order No. 1 because (1) the Union failed to request bargaining and (2) the Management *120 Rights Clause of the collective bargaining agreement acted as a waiver. We are persuaded that the Town's first contention is meritorious, and it is not necessary for us to reach the second contention. With respect to labor law issues, this Court has frequently looked to the voluminous body of federal case law for guidance. E.g., DiGuilio v. Rhode Island Brotherhood of Correctional Officers, 819 A.2d 1271, 1273 (R.I.2003); MacQuattie v. Malafronte, 779 A.2d 633, 636 n. 3 (R.I.2001). In analyzing the instant case, we have once again been substantially assisted by our examination of the reasoning of several decided federal cases. The National Labor Relations Board has emphasized that "it is incumbent upon [a] union to act with due diligence" with respect to requesting bargaining once the union has received adequate notice of a proposed modification in the terms or conditions of employment. Kansas Education Association v. Kansas Staff Organization, 275 N.L.R.B. 638, 639 (1985); Clarkwood Corp. v. Local 258 and Local 438, Graphic Arts Intern. Union, 233 N.L.R.B. 1172, 1172 (1977); see also Bell Atlantic Corp., 336 N.L.R.B. 1076, 1086 (2001); W-I Forest Products Co., 304 N.L.R.B. 957, 960 (1991). We are in full agreement with that principle. A union must do more than merely protest the proposed change or file an unfair labor practice action in order to preserve its right to bargain; a union must affirmatively advise the employer of its desire to engage in bargaining. See Citizens National Bank of Willmar v. Willmar Bank Employees Ass'n, 245 N.L.R.B. 389, 390 (1979); see also Kansas Education Association, 275 N.L.R.B. at 639. However, the employer's notification to the union concerning the contemplated modification in the terms or conditions of employment "must be given sufficiently in advance of actual implementation of the change to allow a reasonable opportunity to bargain." Smurfit-Stone Container Corp., 344 N.L.R.B. No. 82, 2005 WL 1181103 at *20 (May 16, 2005) (quoting Ciba-Geigy Pharmaceuticals Division v. Intern. Chemical Workers' Union, Local No. 9, 264 N.L.R.B. 1013, 1017 (1982)). Consequently, a union with sufficient notice of a contemplated change waives its bargaining rights if it fails to request bargaining prior to the implementation of that change. See W-I Forest Products Co., 304 N.L.R.B. at 960. It should be noted, however, that this Court will not find waiver if a proposed change has been made irrevocable prior to the notification of the union or if the change "has otherwise been announced as a matter on which the employer will not bargain." See id. at 961; see also Smurfit-Stone Container Corp., 2005 WL 1181103 at *20. In the case at hand, the Union received more than adequate notice about the contents of proposed General Order No. 1, but it failed to request bargaining after receiving such notice. Colonel Gannon submitted proposed General Order No. 1 to the Union's president and vice president and met with them to discuss its contents. The record indicates that one of the Union officers has conceded that the three men conversed for "quite some time" and that the Union officers voiced their concerns during that meeting about their perceived problems with the proposed changes. However, the Union thereafter failed to request bargaining with the Town regarding General Order No. 1's substance. Sergeant McBrier's subjective belief that, after the first meeting, he and Officer Macomber would be meeting again with Colonel Gannon and with their respective lawyers to further discuss General Order No. 1 is not enough *121 to satisfy the competent evidence standard. See Nolan, 755 A.2d at 805 (stating that, when examining a Superior Court judgment in an administrative proceeding, this Court "examine[s] the record to determine whether [the trial justice's] decision was supported by competent evidence"); Berberian, 414 A.2d at 482. Additionally, it is our judgment that the Union was notified about General Order No. 1 a reasonable amount of time before General Order No. 1 was implemented. Although only approximately one week elapsed between the time when Colonel Gannon informed the Union (through two of its officers) and the time when he actually implemented the change, it is our view that, in this situation, that was sufficient time to allow the Union to request bargaining. Furthermore, this is not a case in which the contemplated change in policy was made irrevocable before the Union was notified of it, nor is it a case in which the Town indicated to the Union that it would not bargain over the contents of General Order No. 1.[5] It is clear to us that the Town notified the Union about General Order No. 1 and discussed its substance with Union officials before implementing it, and there is no indication in the record that the Town ever indicated that it would not engage in bargaining. Indeed, Colonel Gannon testified without contradiction that the Town never indicated to the Union that it was unwilling to bargain regarding General Order No. 1. Accordingly, we hold that there is insufficient competent evidence in the record to support the SLRB's determination that the Union did not waive its right to bargain with the Town concerning General Order No. 1. Since we have concluded that the Union waived its right to bargain through its inaction, we need not reach the issue of whether it also waived that right pursuant to the Management Rights Clause that is contained in the collective bargaining agreement.[6] Conclusion For the reasons set forth in this opinion, the decision of the Superior Court is quashed. The record may be remanded to the Superior Court with directions to enter a judgment consistent with this opinion. NOTES [1] For the sake of full accuracy, we note that the order in question is entitled, "General Order # 1, Series of 1999." However, in this opinion, it will be referred to simply as "General Order No. 1." [2] In Rhode Island, the provisions of G.L. 1956 chapter 19 of title 45 govern the compensation of police officers who have become injured on duty. [3] At oral argument before this Court, the parties agreed that the implementation of General Order No. 1 occurred about a week after Colonel Gannon's meeting with Officer Macomber and Sergeant McBrier. The record is consistent with the parties' agreement in that regard. [4] See, e.g., State Department of Environmental Management v. State Labor Relations Board, 799 A.2d 274, 277 (R.I.2002) (noting that "[t]he doctrine of election of remedies is one that is grounded in equity and is designed to mitigate unfairness to both parties by preventing double redress for a single wrong"). [5] It is important to point out that the fact that the Town had not indicated to the Union that it was willing to bargain regarding General Order No. 1 is of no consequence here because an employer does not have an affirmative duty to communicate its willingness to bargain. [6] In view of our holding on waiver grounds, we need not reach the Town's alternative argument that it had no obligation to bargain prior to the implementation of General Order No. 1. The Town contends (1) that the content of General Order No. 1 is not a mandatory subject of bargaining and (2) that General Order No. 1 is not substantial enough of a change from past practices to necessitate bargaining. Although we do not pass upon these contentions, we nonetheless emphasize that, to the extent that the substantive benefits accorded a police officer who injures himself or herself while on duty are governed by § 45-19-1, they cannot be bargained away. See generally Vose v. Rhode Island Brotherhood of Correctional Officers, 587 A.2d 913, 915 (R.I.1991); Power v. City of Providence, 582 A.2d 895, 900 (R.I.1990).

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/1772581/

651 S.W.2d 754 (1983) Patrick DENISON, Jr., Appellant, v. The STATE of Texas, Appellee. No. 64958. Court of Criminal Appeals of Texas, En Banc. May 4, 1983. Rehearing Denied June 22, 1983. *757 J. Thomas Sullivan, Dallas, for appellant. Henry Wade, Dist. Atty. and Gregory S. Long, James Walker & Will Wilson, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State. Before the court en banc. OPINION CAMPBELL, Judge. This is an appeal from a conviction for burglary of a habitation. Punishment is ten years imprisonment. Appellant advances seventeen grounds of error on appeal. Appellant asserts that: (1) the evidence is insufficient to support the conviction and that the trial court erred by overruling appellant's motion to quash the indictment for failing to allege: (2) the situs of the offense: (3) the name of the person appellant intended to rape, and (4) the requisite mental state. Further, appellant asserts the jury charge was defective in failing to instruct on: (5) the lesser included offense of criminal trespass, (6) the lesser included offense of indecent exposure, (7) the law regarding voluntary acts as a basis for an offense, and (8) on the defensive issue of insanity. Appellant contends the trial court erred by: (9) admitting inculpatory oral statements of the victim, (10) by improperly stating the law regarding probation in overruling appellant's objection to improper questioning, and (11) by permitting the state to question the appellant regarding his understanding that he would not go to jail if the jury granted probation. Appellant maintains the trial court erred further by overruling his objections to portions of the state's jury argument which: (12) were directed at appellant's counsel, (13) stated appellant had "terrorized" other persons not present in the trial, (14) referred to "rape" being a violent crime when appellant was not indicted for rape, (15) made reference to the offense as being violent, (16) suggested that jurors should "get a gun" if they recommended probation, and (17) urged the expectations of the community in arguing for punishment. Appellant challenges the sufficiency of the evidence. Specifically, appellant asserts that the state failed to demonstrate, beyond *758 a reasonable doubt, that the appellant possessed the requisite intent to commit rape as alleged in the indictment. The appellant was indicted for burglary of a habitation under V.T.C.A. Penal Code, Section 30.02(a)(1). The applicable section of the penal code provides in pertinent part: "Sec. 30.02. Burglary (a) A person commits an offense if, without the effective consent of the owner, he: "(1) enters a habitation, or a building... not open to the public, with intent to commit a felony or theft."[1] Where the sufficiency of the evidence supporting a conviction is challenged, the evidence is viewed in the light most favorable to the verdict. The jury is the exclusive judge of the credibility and of the weight to be given to the evidence. Esquivel v. State, 506 S.W.2d 613 (Tex.Cr.App. 1974). The evidence presented at trial was sufficient to establish the requisite intent to commit the underlying felony, to-wit: rape. On April 27, 1979, the victim, B____ J____ A____, went to bed at approximately 10:30 p.m. She testified that before retiring she locked both of the apartment doors. At approximately 1:00 a.m. she felt the bed move, waking immediately she saw a man "raising up off the bed." B____ J____ A____ immediately removed a gun from a table at the side of the bed and "put the gun in his chest." She then turned on a light and asked, "What are you doing here?" Complainant then testified regarding the conversation which transpired between her and appellant: "[PROSECUTOR]: I am going to ask you to repeat the language that person used to you and what did he say to you? "A. You want me to say everything he said? "Q. Everything you can remember. "A. Well, he said that he had been watching me and that he loved me and that he knew I was waiting for him; that he wanted to fuck me and he was masturbating during this time and he just said a lot of things. Those are the things that stick out in my mind." Clearly, the evidence is sufficient to demonstrate the appellant entered the habitation with the intent of raping the victim as alleged in the indictment. See Ford v. State, 632 S.W.2d 151 (Tex.Cr.App.1982). This ground of error is overruled. Appellant contends in three grounds of error that the trial court erred by overruling his motion to quash because the indictment failed: to designate the address of the habitation; name of the intended victim, nor to allege an offense. In an extensive review of the case law Judge Dally examined the particularity with which situs of an offense must be alleged under Section 30.02. Hodge v. State, 527 S.W.2d 289 (Tex.Cr.App.1975). In Hodge, supra, this Court held only the county need be alleged as the place where the offense was committed in a burglary indictment under Section 30.02. In the instant situation the indictment alleges the offense occurred in "Dallas County." The allegation of situs was sufficient and this ground of error is overruled. Appellant complains that the trial court erred by overruling his motion to quash on the ground that the indictment failed to name the victim of the intended rape. The Dallas Court of Appeals has recently examined the necessity of alleging the victim's name when intended rape is the underlying felony under Section 30.02, Mixon v. State, 632 S.W.2d 836 (Tex.Cr.App. — Dallas) (Rehearing denied 1982) (Petition for Discretionary Review refused.) In Mixon, supra, the court noted: "The additional information requested by appellant in his motion to quash, the rape victim's name, is evidentiary and not required for the notice or plea in bar. The offense of burglary under Art. 30.02(a)(1) *759 is complete upon the act of entry with the intent to commit the named felony or theft, not the actual commission of the named felony or theft. Johnson v. State, 537 S.W.2d 16 (Tex.Cr.App.1976). Appellant was adequately aware of the offense charged, and what `intent to commit' he was alleged to have when he entered the habitation. The fact of the eventual victim's name is merely part of the circumstances of proof which might have been brought by the State to prove its allegation in the indictment. We hold that the appellant had adequate notice to prepare his defense." It is unnecessary to allege the name of the intended victim when rape is the intended felony named in a burglary indictment under Sec. 30.02, supra. This ground of error is overruled. Appellant contends the indictment was defective in failing to allege an offense. Specifically the appellant asserts that the proper allegation of intent and mental state is absent. The appellant maintains that two distinct mental states are required and thus both must be alleged. In Teniente v. State, 533 S.W.2d 805 (Tex.Cr.App.1976) this Court examined the allegation of a culpable mental state required under Sec. 30.02(a)(1). Writing for the Court, Judge Dally noted: "V.T.C.A. Penal Code, Sec. 6.02, provides that a person does not commit an offense unless he intentionally, knowingly, recklessly or with criminal negligence engages in conduct as the definition of the offense requires. The conduct that is the gist of the offense of burglary in this case is the entry into the habitation with the requisite intent. The indictment alleges a culpable mental state with which the appellant entered the habitation; it alleges he entered the habitation `with the intent to commit theft.'" The indictment in the instant situation provides in pertinent part that the appellant: "... did unlawfully, intentionally and knowingly enter a habitation without the effective consent of B____ A____, the owner thereof, with the intent to commit rape." Clearly, under the rationale of Teniente, supra, the allegation of culpable mental state in the indictment sufficiently alleged the appellant's mental state. This ground of error is overruled. Appellant asserts that the trial court erred by denying his request for jury instructions on the lesser included offenses of criminal trespass and indecent exposure. Criminal trespass can be a lesser included offense of burglary of a building. Day v. State, 532 S.W.2d 302 (Tex.Cr.App. 1976). However, merely because a lesser offense is included within the proof of a greater offense, a jury charge on the lesser is not required unless there is testimony raising such issue that the defendant if guilty, is guilty only of the lesser offense. McBrayer v. State, 504 S.W.2d 445 (Tex.Cr. App.1974) (reh. den. 1974). In Royster v. State, 622 S.W.2d 442 (Tex.Cr.App.1981) (reh. den. 1981) a two-step analysis was articulated in determining the necessity of including a charge on a lesser included offense: "Thus, in determining whether a charge on a lesser included offense is required, a two-step analysis is to be used. First, the lesser included offense must be included within the proof necessary to establish the offense charged. Secondly, there must be some evidence in the record that if the defendant is guilty, he is guilty of only the lesser offense. Eldred v. State, 578 S.W.2d 721 [(Tex.Cr.App.1979)]. This Court has consistently employed the two-step analysis in recent opinions dealing with the necessity of a charge on the lesser included offense." Royster v. State, supra. In the instant case, while proving burglary of a habitation with intent to commit rape, the state proved appellant committed the offense of criminal trespass. However, the appellant did not present one scintilla of evidence. Therefore, there was no evidence presented at trial which showed that if the appellant was guilty, he was guilty of criminal trespass only. *760 Likewise, in proving the intent to rape in the instant situation, evidence was presented which would support a conviction of indecent exposure per Sec. 21.08, V.T. C.A. Penal Code. However, the uncontroverted evidence presented at trial failed to demonstrate that if guilty, appellant was guilty only of the offense of indecent exposure. The trial court did not err in excluding instructions on criminal trespass and indecent exposure. Appellant contends the trial court erred by refusing to charge on the law of voluntariness. In Bermudez v. State, 533 S.W.2d 806 (Tex.Cr.App.1976) this Court held that voluntariness of conduct need only be pled in an indictment if it is an essential element of the offense. If it is not an essential element it is in the nature of a defense, Bermudez v. State, supra. Voluntariness is not an essential element of burglary with intent to commit rape. Therefore our inquiry in the instant situation is confined to determining whether a defense was raised by the evidence. Absent such evidence the appellant was not entitled to a jury charge on this issue. V.T. C.A. Penal Code, Sec. 2.03(c), (e). In support of his contention appellant relies exclusively on the testimony of B____ J____ A____, the victim, and officer Ronnie Smith of the Dallas Police Department. B____ J____ A____ testified that the appellant's mood during the incident was totally inappropriate, noting that he continually told her he loved her and wanted to have intercourse with her. She added that based on her experience as a nurse appellant appeared drugged. Additionally, B____ J____ A____ told appellant he needed psychiatric help because it was not normal for someone to break into another person's residence and masturbate. On cross examination she noted that inappropriate conduct was generally caused by drugs, alcohol, mental illness and grief. Officer Smith testified regarding the arrest of the appellant near B____ J____ A____'s residence. Smith noted the appellant appeared to be under the influence of some sort of drug. A search incident to the arrest revealed appellant did in fact possess a quantity of marihuana. Voluntary intoxication does not constitute a defense to the commission of crime. V.T.C.A. Penal Code, Section 8.04. The only evidence which relates to the appellant's state of mind was that he was acting inappropriately because of voluntary intoxication, possibly marihuana. The evidence fails to demonstrate that the issue of voluntariness was "fairly raised" by the evidence presented. See Barrientez v. State, 487 S.W.2d 97 (Tex.Cr.App.1972). Likewise, appellant's contention that he was entitled to a jury charge on the law regarding insanity is not supported by the evidence. B____ J____ A____ testified that due to the inappropriateness of the appellant's conduct she felt he was drugged, and that he should seek psychiatric help. On cross examination she conceded that inappropriate conduct can be caused by mental illness. This testimony alone is totally insufficient to raise the defensive issue of insanity per V.T.C.A. Penal Code, Sec. 46.03. Appellant maintains that the trial court erred by admitting into evidence testimony regarding an inculpatory oral statement appellant made at the time of arrest. At trial the following transpired: "PROSECUTOR: And right as you arrested him what did he say as you were arresting him? "DEFENSE COUNSEL: Judge, I'm going to object to any inculpatory statement coming in at this time. "THE COURT: I overrule your objection. "PROSECUTOR: As you were in the process of arresting him, just as you arrested him what, if "OFFICER SMITH: He said something to the effect that `I didn't do anything to that woman. I was just talking to her.'" We note first that appellant's objection was general in nature and fails to preserve error. See Bermudez v. State, supra; Hodge v. State, 631 S.W.2d 754 (Tex. Cr.App.1982), and Williams v. State, 491 S.W.2d 142 (Tex.Cr.App.1973). Further, *761 the statement complained of was admissible as res gestae. In determining whether or not statements made by an accused are admissible as res gestae, each statement must be considered on its own merits. Harryman v. State, 522 S.W.2d 512 (Tex.Cr. App.1975); Smith v. State, 474 S.W.2d 486 (Tex.Cr.App.1971). In the instant situation the statement was made during the arrest, not in response to any type interrogation. Appellant was arrested while fleeing the scene of the burglary on foot. He was clearly in the emotional grip of the situation. The statement was admissible as res gestae of the arrest. See Fowler v. State, 379 S.W.2d 345 (Tex.Cr.App.1964); Fisk v. State, 432 S.W.2d 912 (Tex.Cr.App.1968); Hood v. State, 490 S.W.2d 549 (Tex.Cr.App. 1973). Appellant alleges the trial court improperly stated the law regarding probation during the punishment phase of the trial. Specifically the appellant complains of the following exchange: "PROSECUTOR: So you would be going right back to the same apartment complex where you committed the burglary that you were convicted of before won't you? "DEFENSE COUNSEL: Your Honor, he doesn't know that. The Court may require him to live in a community treatment center. "PROSECUTOR: There's no community treatment center. We object to that. "DEFENSE COUNSEL: I object to his unsworn testimony. "THE COURT: Counsel — "DEFENSE COUNSEL: Doesn't exist. "THE COURT: The terms and conditions — that is not a term and condition of probation. "DEFENSE COUNSEL: The court may require it. "THE COURT: No. "DEFENSE COUNSEL: I object to his unsworn testimony in front of the jury. "THE COURT: Let's get through here. "DEFENSE COUNSEL: May I have a ruling? "THE COURT: I overrule your objection." No objection appears which relates to the trial court's comment. Absent an objection to the court's comment nothing is presented for review. Esquivel v. State, 506 S.W.2d 613 (Tex.Cr.App.1974); McCary v. State, 477 S.W.2d 624 (Tex.Cr.App.1972). This ground of error is overruled. During the punishment phase of the trial the appellant took the stand to testify on his own behalf. On cross examination the prosecutor asked the appellant whether or not he would go to jail if he were granted probation. Counsel for the appellant objected on the grounds this question called for a legal conclusion. The objection was sustained, however, no request for additional relief was made. Therefore, error, if any was waived regarding this issue. Lasker v. State, 573 S.W.2d 539 (Tex.Cr.App.1978). Subsequently the state again attempted to inquire as to whether appellant would continue to live at home if granted probation. Defense counsel objected "because it assumes matters not in evidence." The objection was overruled. Appellant's objection was so general in nature as to apprise the court of nothing. Error was not preserved and nothing is presented upon appeal. Bermudez v. State, supra. Appellant advances six grounds of error challenging the admission of various portions of prosecutorial jury argument. Four general areas of acceptable jury argument have been specified by this Court, Alejandro v. State, 493 S.W.2d 230 (Tex.Cr. App.1973). The four areas identified are: (1) summation of the evidence, (2) reasonable deduction from the evidence, (3) answer to argument of opposing counsel, (4) plea for law enforcement. In examining challenges to jury argument this Court considers the remark in the context in which it appears. Blassingame v. State, 477 S.W.2d 600 (Tex.Cr.App. 1972). Counsel is given wide latitude without limitation in drawing inferences from *762 the evidence so long as they are reasonable, fair, legitimate, and offered in good faith. Griffin v. State, 554 S.W.2d 688 (Tex.Cr. App.1977). Conversely, a jury argument must be extreme or manifestly improper, or inject new and harmful facts into evidence to constitute reversible error. Kerns v. State, 550 S.W.2d 91 (Tex.Cr.App.1977). The first portion of the prosecutor's argument of which appellant complains was the following: "PROSECUTOR: ... I have asked you and I wanted to ask his lawyers I wonder what it would take — what would he have to do before they would stand up here and tell you members of the jury to send him to the penitentiary... "DEFENSE ATTORNEY: I object to that as slapping at the Defendant over my shoulder." Clearly the appellant's objection was insufficient to put the trial court on notice as to the ground of objection. See Urtado v. State, 167 Tex. Crim. 318, 319 S.W.2d 711 (Tex.Cr.App.1958). A general objection to jury argument is insufficient to preserve error and presents nothing for review. Aliff v. State, 627 S.W.2d 166 (Tex. Cr.App.1982). Assuming a proper objection had been made the argument remains within permissible limits. Appellant's counsel had made a strong plea for probation during argument. The record demonstrates evidence had been introduced showing: appellant had been convicted of two prior misdemeanors, was on unadjudicated probation for the burglary of a building, and was currently on trial for a first degree felony. Considering the argument in the context in which it appears counsel's comments were proper as an opinion based upon inferences from the evidence. Appellant's next ground of error challenges the trial court overruling his objection to the following portion of argument: "PROSECUTOR: I want to ask you what we have got to bring you. You know, how many terrorized citizens we have to bring down here — people who are in mortal fear of that man over there? "DEFENSE COUNSEL: I object as suggesting there are many people he has terrorized suggesting some personal knowledge of the prosecutor." The prosecutor's remark is a reasonable inference from the record. The victim had testified that she and her daughter had recurrent nightmares regarding the incident. Further, the fact that appellant was already on probation for burglary demonstrates prima facie he had previously "terrorized" others. See Porter v. State, 601 S.W.2d 721 (Tex.Cr.App.1980). Appellant asserts that the trial court erred in overruling his objection to the prosecutor's reference to rape as a violent crime. The following transpired during argument: "PROSECUTOR: ... His lawyers say he is not a violent man. You see, Mr. With row says that there is not history of violence. I'm sorry, the first man said there was no history of violence. The second man said he was not life threatening. They want you to believe that rape isn't a violent crime." "DEFENSE COUNSEL: I object. There is not an allegation of rape in this case. "THE COURT: Overrule your objection. Clearly, appellant's objection at trial related to the absence of an allegation of rape in the case. On appeal he asserts that the argument is improper because it improperly characterizes rape as a violent crime. Grounds of error urged on appeal must comport to the objections made at trial or error is not preserved. Bell v. State, 582 S.W.2d 800 (Tex.Cr.App.1979). Error, if any, was waived by appellant's failure to specifically object at trial on the ground of error urged on appeal. Bell v. State, supra. Appellant complains that the prosecutorial argument characterized the offense as "violent." This argument was a proper inference from the record as a reply to defense counsel's argument that: "We don't have a violent behavior." Further, it *763 was entirely within reason to argue this act was violent in light of evidence that a 38 year old female was forced to use a pistol to escort the uninvited masturbating appellant from the sanctity of her bedroom in the middle of the night. In his final two grounds of error appellant complains of the prosecutor's comments that: "... If you send him right back out there — if you want to put him back in the community where you live, you're a whole lot braver than I am. I submit to you if you put him back on the street — and you know that's what a probation is — you better go home and you better get a gun." * * * and "... It's your community. You live here. B____ A____ is one of us. She is like you and I. She is an innocent victim. She deserves protection — black, white, or anything else. She deserves protection and the only people who can protect her and everybody else are you." Both of the complained of portions of the argument related to reasonable inferences from the evidence as well as proper pleas for law enforcement. Parks v. State, 400 S.W.2d 769 (Tex.Cr.App.1966); Jones v. State, 153 Tex. Crim. 345, 220 S.W.2d 156 (Tex.Cr.App.1949); Meadowes v. State, 368 S.W.2d 203 (Tex.Cr.App.1963). The judgment is affirmed. TOM G. DAVIS, J., concurs in result. MILLER, J., dissents. ODOM, Judge, dissenting. I dissent to the majority opinion's ruling on the prosecutor's jury argument. The first argument that was improper constituted an improper comment about defense counsel. The prosecutor argued: "... what would he [appellant] have to do before they [defense counsel] would stand up here and tell you members of the jury to send him to the penitentiary...." See Bray v. State, 478 S.W.2d 89 (Tex.Cr. App.1972); Spencer v. State, 466 S.W.2d 749 (Tex.Cr.App.1971). The majority's conclusion that the argument was a proper opinion that probation was not appropriate in this case ignores the fact that the argument actually was that defense counsel should not have argued in favor of probation. I also do not agree with the majority's statement that evidence of appellant being on probation for burglary demonstrates he had terrorized others. It is not an element of burglary that any person be on the burglarized premises or even in the vicinity at the time of the offense. See V.T.C.A., Penal Code Sec. 30.02. If the argument is construed as a reference to the facts of the offense for which appellant was on probation, which the majority apparently is doing, it goes beyond the permissible limit of showing only the fact of conviction. For these reasons I dissent. CLINTON and TEAGUE, JJ., join. TEAGUE, Judge, dissenting. Although I find myself in disagreement with many statements in the majority opinion, I limit my remarks in the dissenting opinion to the issue concerning the sufficiency of the evidence, i.e., whether the State established beyond a reasonable doubt that appellant committed the offense of burglary with the intent to force the complainant to have sexual intercourse with him. Appellant was not shown to be armed with any type weapon, either before or after he entered the complainant's apartment. He never threatened the complainant after entry with words or gestures that he was going to force her to have sexual intercourse with him, although he did inform the complainant, while masturbating himself, that he desired to have consensual sexual intercourse with her. This is not sufficient, in my view, to establish the offense of burglary with the intent to have forcible sexual intercourse with another person. *764 The question before this Court does not involve the appellant's bizarre behavior, whether done intentionally or because of mental illness. Instead, the question before this Court is whether the State proved beyond a reasonable doubt what it had alleged: that appellant entered the complainant's apartment with the intent to have forcible sexual intercourse with the complainant. There is no question but that appellant is guilty of one or more criminal offenses, but that is not the question. The question is whether the State proved his guilt of committing the offense of burglary with the intent to have forcible sexual intercourse with the complainant. It is axiomatic that to constitute the offense of burglary with intent to commit some felony, the specific intent alleged must be proved beyond a reasonable doubt. Such proof must, with reasonable certainty, lead to the conclusion sought, and not to mere speculation and surmise. Greer v. State, 437 S.W.2d 558 (Tex.Cr.App.1969). In this instance, the allegation is not that appellant entered the complainant's apartment with the intent to have consensual sexual intercourse with her, but, instead, it was alleged that the appellant made entry with the intent to commit forcible sexual intercourse with the complainant. Entry intending to have consensual sexual intercourse is not the same as entry intending to have forcible sexual intercourse. See Roberts v. State, 136 Tex. Crim. 138, 124 S.W.2d 128 (Tex.Cr.App.1939); Walls v. State, 164 Tex. Crim. 470, 299 S.W.2d 953 (Tex.Cr.App. 1957); Conrad v. State, 154 Tex. Crim. 624, 230 S.W.2d 225 (Tex.Cr.App.1950); Baldwin v. State, 153 Tex. Crim. 19, 216 S.W.2d 985 (Tex.Cr.App.1949); Sanchez v. State, 143 Tex. Crim. 345, 158 S.W.2d 801 (Tex.Cr.App. 1942); Miller v. State, 134 Tex. Crim. 611, 117 S.W.2d 62 (Tex.Cr.App.1938); Brown v. State, 94 Tex. Crim. 140, 250 S.W. 170 (Tex. Cr.App.1923); Hays v. State, 86 Tex. Crim. 469, 217 S.W. 938 (Tex.Cr.App.1920); Sedgwick v. State, 57 Tex. Crim. 420, 123 S.W. 702 (Tex.Cr.App.1909); Cotton v. State, 52 Tex. Crim. 55, 105 S.W. 185 (Tex.Cr.App. 1907); Mason v. State, 47 Tex. Crim. 403, 83 S.W. 689 (1904); Mitchell v. State, 33 Tex. Cr.R. 575, 28 S.W. 475 (Tex.Cr.App.1894); Coleman v. State, 26 White & W. 673, 9 S.W. 609 (Tex.Cr.App.1888); Turner v. State, 24 White & W. 12, 5 S.W. 511 (Tex.Cr.App.1887); Allen v. State, 18 White & W. 120 (1885); and Hamilton v. State, 11 White & W. 116 (1881). Any cases of this Court which reflect or indicate that a person may be guilty of the offense of burglary, where it is alleged that he entered the premises with intent to have forcible sexual intercourse, but the evidence clearly reflects and indicates, as here, that the defendant did not have the intent to have forcible sexual intercourse should be overruled. No defendant, regardless of how despicable and shocking his conduct might be, or how sorry he might be as a human being, should ever be convicted of anything other than what he is accused of committing. By the facts as set out in the majority opinion, we do a disservice to the jurisprudence of this State by affirming this conviction on the evidence the State presented. To such action, I respectfully dissent. CLINTON, J., joins. NOTES [1] All emphasis supplied throughout by the writer of this opinion unless otherwise indicated.

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353 F. Supp. 315 (1972) Edward Joseph DENKE, Jr., Plaintiff, v. GALVESTON, HOUSTON & HENDERSON RAILROAD COMPANY, Defendant. Civ. A. No. 72-H-618. United States District Court, S. D. Texas, Houston Division. September 7, 1972. *316 Norman R. Jones, Downman, Jones & Schechter, Houston, Tex., for plaintiff. Harman Parrott, Sewell, Junell & Riggs, Houston, Tex., for defendant. MEMORANDUM AND ORDER CARL O. BUE, Jr., District Judge. This action arises under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq. (1952) in that it is alleged that the plaintiff, employed as a carman for defendant Galveston, Houston & Henderson Railroad Company, was severely injured when run over by a railroad car during a switching operation. The plaintiff brought suit in the Houston Division, Southern District of Texas and opposes any transfer. The defendant seeks to transfer the action to the Galveston Division alleging, and the plaintiff admitting, that the plaintiff at all material times was a resident of and domiciled in Galveston County, that the defendant corporation had its principal office and place of business in Galveston County, and the occurrence complained of occurred in Galveston County, Texas. The defendant admits having railroad tracks within the Houston Division. The issue before this Court is whether a corporate defendant may, under the facts here present, obtain a transfer of an action against the plaintiff's wishes to the Division of its principal place of business where the convenience of the parties is not seriously at issue. The difference between trial in the Houston Division and the Galveston Division, aside from possibly being tried by a different Judge, involves a distance of approximately fifty miles. The defendant relies solely upon 28 U.S.C. § 1393(a) which provides: Except as otherwise provided, any civil action, not of a local nature, against a single defendant in a district containing more than one division must be brought in the division where he resides. An issue of interpretation and application is raised by the existence of a venue statute expressly applicable to corporations. This statute, 28 U.S.C. § 1391(c), reads: A corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes. The defendant cites a case from this District, strikingly similar to the present case, interpreting the forerunner of § 1393(a), old 28 U.S.C. § 114 (1940), as requiring an FELA action against a domestic railroad to be brought in the Division where the railroad "resides" rather than where it may be found to be doing business. Schavrda v. Gulf, C. & S. F. Ry. Co., 60 F. Supp. 658 (S.D.Tex. 1945). Significant changes in the law have occurred since 1945, however. In 1948 there were substantial changes made by Congress affecting corporations, the above § 1391(c) being most important for our purposes here. In a carefully considered opinion it has been held that the use of the word "he" in § 1393(a) indicated a Congressional intent not to have that section applicable to corporations. Technograph Printed Cir. v. Packard Bell Electronics Corp., 290 F. Supp. 308, 324 (C.D.Cal.1968); cf. Sharp v. Commercial Solvents Corp., 232 F. Supp. 323, 325 (N.D.Tex.1964). Other courts have read § 1393(a) together with § 1391 (c) so that the word "resides" would be interpreted to provide proper venue in any Division of a multi-Division District in which the corporation is incorporated, or licensed to do business, or is doing *317 business. Henderson v. Wyeth Laboratories, Inc., 319 F. Supp. 565 (E.D.Tenn. 1970); Johnson v. Tri-State Motor Transit Co., 263 F. Supp. 278 (W.D.Mo. 1966); Torres v. Continental Bus System, Inc., 204 F. Supp. 347 (S.D.Tex. 1962); Guy F. Atkinson Co. v. City of Seattle, 159 F. Supp. 722 (W.D.Wash. 1958); Freund v. Aiken Petroleum Co., 150 F. Supp. 575 (E.D.S.C.1957); Reeder et al. v. Corpus Christi Refining Co., 111 F. Supp. 756 (S.D.Tex.1952). It is worthy of note that both Atkinson and Reeder (the latter citing Schavrda, supra), specifically held that the cases interpreting old 28 U.S.C. § 114 were overruled by the 1948 changes in corporate venue as provided by § 1391(c). The Court recognizes that the parties and undoubtedly most witnesses are located in the Galveston Division. Nevertheless, there is a strong judicial preference for allowing the plaintiff to choose his forum. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S. Ct. 839, 91 L. Ed. 1055 (1946); Time, Inc. v. Manning, 366 F.2d 690, 698 (5th Cir. 1966); Hyde Construction Co. v. Koehring Co., 321 F. Supp. 1193, 1212 (S.D. Miss.1969). As this Circuit has noted, "At the very least, the plaintiff's privilege of choosing venue places the burden on the defendant to demonstrate why the forum should be changed." Time, Inc. v. Manning, supra, 366 F.2d at 698. The defendant has not met that burden here. It admits doing business within the Houston Division, inasmuch as it has tracks within the Division. There is no allegation made, nor does the nature of the alleged incident suggest, that suit in this Division or the distance of fifty miles would be particularly inconvenient to the parties or the trial of this action. This Court finds that § 1393(a) at the very least must be read in a compatible manner with § 1391(c). Finding that the defendant was doing business in this Division, and finding no prevailing reason for transferring this case, the defendant's motion to transfer is denied. Clerk will notify counsel.

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921 A.2d 403 (2007) The STATE of New Hampshire v. Alvin V. DRAKE. No. 2006-050. Supreme Court of New Hampshire. Argued: February 21, 2007. Opinion Issued: April 6, 2007. *405 Kelly A. Ayotte, attorney general (Susan P. McGinnis, assistant attorney general, on the brief and orally), for the State. Law Office of David H. Bownes, P.C., of Laconia (David H. Bownes, on the brief and orally), for the defendant. HICKS, J. The defendant, Alvin V. Drake, appeals his conviction for possession of a controlled drug, see RSA 318-B:2 (2004); RSA 318-B:26 (2004) (amended 2005, 2006), following a jury trial in Superior Court (Perkins, J.). We affirm. The jury could have found the following facts. On January 21, 2005, Sergeant Christopher Ruel of the New Hampshire Division of Motor Vehicles witnessed a small pickup truck driven by the defendant heading north on Route 3 in Lancaster. The defendant was traveling at a high rate of speed, straddling the centerline and forcing other vehicles off the road. Sergeant Ruel activated his blue lights and followed the defendant, who did not immediately pull over. Sergeant Ruel gave "a couple of blasts of [his] air horn" and activated his siren. The defendant eventually pulled over and parked on the side of the road partially in a snow bank. Sergeant Ruel approached the defendant's truck, asked him to get out and arrested him. As Sergeant Ruel searched the defendant, he felt a cylindrical object in the defendant's front pocket. At this point, the defendant twisted, reached into his pocket, pulled out a prescription pill bottle and threw it. Sergeant Ruel attempted to handcuff the defendant, but he fought with the officer. After the defendant was handcuffed, Sergeant Ruel found two 2.5-milligram oxycodone tablets in the defendant's pocket and eventually located the prescription bottle. It contained eleven 5-milligram diazepam tablets, seventy-five 5-milligram oxycodone tablets, and thirty-eight 4.5-milligram oxycodone tablets. The name on the prescription bottle label was Andreas Wischlburger. After the defendant waived his Miranda rights, see Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), he claimed that he was the only person who used the truck and everything in it was his, but he did not know where the drugs had come from. He stated that he had been really scared and that is why he threw them. Later, the defendant claimed that the prescription bottle belonged to his wife and that he knew he would be in trouble for having it. During the inventory search of the defendant's truck, Sergeant Ruel found two 4.5-milligram oxycodone tablets in the center console, eleven 7.5-milligram oxycodone tablets in a shaving kit inside a duffle bag, and five 7.5-milligram oxycodone tablets in a black fanny pack. The defendant was indicted on one count of possession of the controlled drug diazepam, one count of possession of the controlled drug oxycodone, and one count of possession with intent to deliver the controlled drug oxycodone. See RSA 318-B:2, :26. At trial, Wischlburger, the owner of the prescription bottle, testified that he had known the defendant for twenty years; that they both lived in Meredith; and that in December 2004 and January 2005, he had been on the defendant's property cutting wood. During this time period, Wischlburger had been taking diazepam, prescribed to him for pain, on a regular basis for eight or nine years. He would take the diazepam at night in order to sleep. The prescription was last filled on December 8, 2004, and at some point after that he misplaced the bottle. Wischlburger testified that the defendant called and said that he found the prescription bottle *406 and would return it, but Wischlburger was unclear about the time period regarding these events. At the end of the State's case, the court dismissed the two counts alleging possession of oxycodone. The jury convicted the defendant on the one count of possession of the controlled drug diazepam. On appeal, the defendant argues: (1) that the superior court erred in giving the State's requested jury instructions regarding possession of prescription drugs under RSA 318-B:13 (2004) and RSA 318-B:14 (2004) because the instructions were confusing and irrelevant; and (2) the evidence was insufficient to prove his guilt beyond a reasonable doubt. We first address the defendant's assertion that the jury instructions were confusing and irrelevant. The defendant first argues that the court's charge impermissibly amended the indictment. The defendant did not object on this basis at trial, however, and we therefore decline to address this claim on appeal. See State v. McCabe, 145 N.H. 686, 689-90, 765 A.2d 176 (2001). Second, he argues that the jury instructions were misleading, which caused the jury to be confused about the correct legal standard to be used in resolving the material issues of the case. We disagree. In addressing the defendant's argument, we recognize: The purpose of the trial court's charge is to state and explain to the jury, in clear and intelligible language, the rules of law applicable to the case. When reviewing jury instructions, we evaluate allegations of error by interpreting the disputed instructions in their entirety, as a reasonable juror would have understood them, and in light of all the evidence in the case. We determine if the jury instructions adequately and accurately explain each element of the offense and reverse only if the instructions did not fairly cover the issues of law in the case. State v. Bortner, 150 N.H. 504, 512, 841 A.2d 80 (2004) (quotations and citations omitted). Whether or not a particular jury instruction is necessary, and the scope and wording of jury instructions, are both within the sound discretion of the trial court, see State v. Cook, 148 N.H. 735, 741-42, 813 A.2d 480 (2002); State v. Evans, 150 N.H. 416, 420, 839 A.2d 8 (2003), and we review the trial court's decisions on these matters for an unsustainable exercise of discretion, see State v. Poole, 150 N.H. 299, 301, 837 A.2d 307 (2003). The court instructed the jury on the specific elements of the crime using language that tracked RSA 318-B:2: "That . . . the defendant, knowingly had the drug under his custody and control; That [he] knew the drug was under his custody and control; That [he] knew that the controlled drug was in fact Diazepam; and That the drug was in fact Diazepam." The court's instructions adequately and accurately explained each element of the offense. The court then recited RSA 318-B:13 (requirements for prescription labeling) and RSA 318-B:14 (requirements for lawful possession of prescription drugs), followed by an instruction on the defendant's theory of the case: "that the drug, Diazepam, which was found, w[as] lawfully prescribed to a third person and that the state ha[d] not proven beyond a reasonable doubt that the defendant intended to unlawfully exercise possession or control over those drugs." RSA 318-B:13 and :14 could be reasonably understood as a general overview of the defense's theory of the case. In closing arguments, the defense argued that the issue before the jury was whether the defendant unlawfully possessed Wischlburger's *407 prescription. Moreover, the defense argued that "these were lawfully prescribed pills to a third party and that [the defendant] wasn't possessing them to sell them or to use them or anything other than just to return them to Mr. Wischlburger," and that if the prescription pills lawfully belonged to Wischlburger, then the defendant was not guilty. Reading RSA 318-B:13 and RSA 318-B:14 was likely helpful to the jury in determining whether the defendant's theory was sustainable. We are unconvinced that reading RSA 318-B:13 and RSA 318-B:14 could have misled or confused the jury on the legal standard to be applied. During the jury's charge, the court stated: There are a couple of statutes that deal with drugs that I'm going to read to you. The first is RSA 318-B:13. . . . This law says in relative [sic] part, whenever a pharmacist dispenses any controlled drug or prescription issued by a practitioner, he or she shall affix to the container in which said [sic] is dispensed a label showing the name, address, and registry number of the pharmacy name or initials of the pharmacist, the name of the prescribing practitioner, the prescription identifying number, the name of the patient, the date dispensed, any directions as may be stated on the prescription and the name and strength and quantity of the drug dispensed. No person shall alter, deface, or remove any label so affixed. The second statute I want to read to you is RSA 318-B:14, Authorized Possession of Controlled Drugs by Individuals. This, in relevant part, reads: An individual to whom or for whose use any controlled drug has been prescribed, sold, or dispensed by a practitioner or a pharmacist, may lawfully possess it only in the container in which it was delivered to him by the person selling or dispensing the same. And then in section two of that statute reads in Section C: Exceptions are made for those of non or reasonable [sic] containers, which are medication organizers to aid the person in carrying out the prescriber's directions. The court began its jury charge with the specific elements of RSA 318-B:2 as charged, read RSA 318-B:13 and 14, and then explained the defendant's theory of defense, which was that the pills had been lawfully prescribed and that, therefore, he could not be guilty of unlawful possession. Because, viewed in their entirety, the trial court's instructions provided the jury with a clear and intelligible description of the applicable law in this case, we conclude that the instructions were not confusing or irrelevant. We next address the defendant's argument that the evidence was insufficient to support the jury's finding of possession of a controlled drug under RSA 318-B:2. "To prevail in a challenge to the sufficiency of the evidence, the defendant bears the burden of proving that no rational trier of fact, viewing the evidence in the light most favorable to the State, could have found guilt beyond a reasonable doubt." State v. Crie, 154 N.H. ___, ___, 913 A.2d 767, 772 (2006). "In reviewing the evidence, we examine each evidentiary item in the context of all the evidence, not in isolation." Id. "Circumstantial evidence may be sufficient to support a finding of guilty beyond a reasonable doubt." Id. "Further, the trier may draw reasonable inferences from facts proved and also inferences from facts found as a result of other inferences, provided they can be reasonably drawn therefrom." Id. "It is well settled that the jury has substantial latitude in determining the credibility of witnesses." State v. Gubitosi, 152 N.H. 673, 680, 886 A.2d 1029 (2005). *408 The defendant argues that the evidence demonstrated that he was in lawful possession of the diazepam because "the prescription bottle, was lawfully prescribed to Andreas Wischlburger, issued on 12/8/04 and contained eleven (11) Diazepam pills. The pill bottle itself accurately described the physician who prescribed the medication and provided the required information as required by the Controlled Drug Act." He claims that such a defense arises out of RSA 318-B:6 (2004) entitled, "Possession Lawful." As explained further below, neither the facts nor the terms of RSA 318-B:6 support such a defense. In the present case, Sergeant Ruel conducted a pat search of the defendant and discovered a prescription bottle in the defendant's front pocket. When Sergeant Ruel went to recover the bottle, the defendant reached into his pocket, removed the bottle and threw it away. When the prescription bottle was confiscated, it contained eleven tablets of diazepam along with 113 tablets of oxycodone. The defendant's name was not on the prescription bottle's label. Sergeant Ruel testified that when questioned about the prescription bottle, the defendant first stated that he didn't know where the drugs had come from, but later claimed that the prescription belonged to his wife and he would be in trouble for having it. Viewing this evidence and all reasonable inferences from it in the light most favorable to the State, we conclude that a rational trier of fact could have found beyond a reasonable doubt that the defendant was guilty of being in unlawful possession of a controlled drug. On appeal, the defendant argues that RSA 318-B:6 supports his theory of defense that he was in lawful possession of the diazepam because the drug was lawfully prescribed to a third party who allegedly authorized the defendant to possess it. However, in this case, RSA 318-B:6 is not a proper defense for the defendant because his possession of the diazepam does not satisfy the statute. RSA 318-B:6 provides in part: "Possession of or control of controlled drugs obtained as authorized shall be lawful if in the regular course of business, occupation, profession, employment, or duty of the possessor." The defendant urges us to interpret RSA 318-B:6 to authorize the incidental possession by third parties with the permission of the lawful possessor. However, the defendant never specifically raised this issue below in a motion to dismiss nor did he ask for a jury instruction on this issue. Assuming without deciding that this issue was properly preserved, we rule that RSA 318-B:6 cannot be construed as proposed by the defendant. RSA 318-B:6 does not contain the language suggested by the defendant. In matters of statutory interpretation, we are the final arbiters of the legislature's intent as expressed in the words of the statute considered as a whole. Town of Hinsdale v. Town of Chesterfield, 153 N.H. 70, 73, 889 A.2d 32 (2005). When examining the language of the statute, we ascribe the plain and ordinary meaning to the words used. Id. We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include. Id. Affirmed. BRODERICK, C.J., and DALIANIS, DUGGAN and GALWAY, JJ., concurred.

01-03-2023

10-30-2013